work_2236vhjjobhmzflc6q7fot2rdy	----	1The Dance of Justice Editorial The Dance of Justice Time appears in the development of law in several capacities. One of its powers is to provide relief for courts gridlocked in contradictory claims of hierarchy. That is the topic of this editorial. A showcase is provided by the Melki saga, as it re- cently unfolded in a rich and rushed contention between the French courts and the Court of Justice of the European Union.1 Melki and Abdeli, two Algerian sans papiers in France, were arrested in 2010 pursuant to an identity check in the Belgian border area and kept for deportation. Before the court they invoked rights under the French Constitution and under the EU treaties. The constitutional question was referred to the French Cour de Cassation under a new procedure based on Article 61-1 of the Constitution and effective from 1 March 2010. Upon referral from the Conseil d’État or the Cour de Cassation, the Conseil constitutionnel is allowed to test a legislative provision’s compatibility with (French) constitutional rights and liberties. The organic (insti- tutional) legislature2 turned this procedure into a question prioritaire de constitu- tionalité to give precedence to review of a contested legislative provision against the Constitution by the Conseil constitutionnel over review against international instruments by the ordinary and administrative courts. In the words of the Conseil constitutionnel, ‘Parliament, when enacting the Institutional Act, intended to en- sure compliance with the Constitution and confirm the place of the latter at the apex of the national legal system.’3 In the Melki case, in defiance of the priority rule, the Cour de Cassation, instead of referring Melki’s question to the Conseil constitutionnel, referred the new pro- cedure itself to the Court of Justice for a review against EU law. This was 16 April 2010. Less than four weeks later, on 12 May, the Constitutional Council took advantage of another dispute to convey its view that there had been no reason for the Cassation Court to worry: the constitutional question priority procedure does 1 Marc Bossuyt and Willem Verrijdt, ‘The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment’, 7 EuConst (2011) p. 355-391. 2 Loi organique n° 2009-1523 du 10 décembre 2009 relative à l’application de l’article 61-1 de la Constitution. 3 Decision n° 2009-595 DC of 3 December 2009, para. 14. European Constitutional Law Review, 9: 1–6, 2013 © 2013 t.m.c.Asser press and Contributors doi:10.1017/S1574019612001010 use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1574019612001010 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:32, subject to the Cambridge Core terms of https://www.cambridge.org/core/terms https://doi.org/10.1017/S1574019612001010 https://www.cambridge.org/core 2 Editorial EuConst 9 (2013) not deprive the administrative and ordinary courts of the power to do ‘all and everything necessary to prevent the application in the case at hand of statutory provisions impeding the full effectiveness of the norms and standards of the Eu- ropean Union.’ Nor does it take away their freedom or duty to ask for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union.4 Two days later again the French Council of State followed suit with a similar reas- surance.5 A few weeks later again, on 22 June, the Court of Justice gave its blessing to the new French procedure under the terms proposed by the two French public law courts, albeit under one important condition. This concerns the situation in which a legislative provision whose constitutionality is contested merely trans- poses the mandatory provisions of a European Union directive. In that case, the constitutionality of the underlying directive is at stake, albeit indirectly, and the Court of Justice must have had the opportunity to rule on the validity of that directive before the Constitutional Council rules on the constitutionality of the legislative provision: ‘In the case of a national implementing law with such content, the question of whether the directive is valid takes priority, in the light of the obligation to transpose that directive.’6 The upshot of the Melki saga is that the Court of Justice conceded to a limita- tion of its supremacy dogma in favour of French constitutional law. It accepted a national procedure ‘which would prevent the national court from immediately disapplying a national legislative provision which it considers to be contrary to EU law’ (para. 53), something which it had forcefully rejected in the famous Sim- menthal decision of 1978. But another element of the saga interests us even more here. In the Melki string of rulings the temporal aspect that is the most interesting is decidedly that of succession. Of course, the Court of Justice was well aware that the Constitutional Council does not accept the primacy of Union law uncondi- tionally. Indeed, although the Council qualifies the duty of the French parliament to implement directives as a constitutional one, such implementation may not ‘run counter to a rule or principle inherent in the constitutional identity of France unless the Constituent power has agreed’ to it.7 Similarly, the Court of Justice was well aware that it was unable to prevent the referral of legislative provisions that implement mandatory provisions of a directive to the Constitutional Council for constitutional review. Therefore it claimed the right to rule first on the question of the validity or constitutionality of the directive or legislative provisions. And 4 Decision n° 2010-605 DC of 12 May 2010, paras. 14 and 15. 5 CE 14 May 2010 (Rujovic). 6 CJEU 22 June 2010, Joined Cases C188/10 and C-189/10 (Melki and Abdeli), para. 56. 7 Decision n° 2010-605 DC of 12 May 2010, para. 18. use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1574019612001010 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:32, subject to the Cambridge Core terms of https://www.cambridge.org/core/terms https://doi.org/10.1017/S1574019612001010 https://www.cambridge.org/core 3The Dance of Justice the Court of Justice got its way. The Constitutional Council, in its judgment of 12 May 2012, unmistakably accepted that when the Cour de cassation and the Conseil d’Etat refer a question prioritaire de constitutionnalité to the Constitutional Council, they also have to put a preliminary question to the Court of Justice if the validity of the directive is at stake. Such a preliminary question will in turn put the Court of Justice under time pressure, as the decisions of the highest referring courts and that of the Constitu- tional Council concerning a question prioritaire de constitutionnalité are subject to strict time limits: the Cour de cassation and the Conseil d’Etat have only three months to decide whether or not to refer, and the Constitutional Council has the same time span to answer the constitutional question. If the preliminary question is posed at the same time as the constitutional question, the Court of Justice con- sequently has less than three months. Between the German Bundesverfassungsgericht and the Court of Justice, a sim- ilar dance is taking shape. So far between these two competitors, a relationship had developed roughly combining intransigence as to formally contradictory claims of supremacy with actual trade-offs as to substance. This relationship, going back to the first Solange ruling, has worked well but is ultimately unsatisfactory for both law and legal doctrine, as the contradiction of supremacy claims nurtures judicial unrest. Pluralism is no solution to these shortcomings. And there are other unde- sirables. Let us look at the rule of succession that emerged between these two contend- ers for primacy. On 6 July 2010 the Bundesverfassungsgericht ruled that the Court of Justice must be able to rule on an EU ultra vires issue before the German Court itself does.8 What is happening here, apart of course from the gesture of deference, is that both sides are seeking to address their hierarchical conundrum by finding a regulated, accepted, succession of appearances, a taking of turns. There is no denying that a change is slipping in with the rule that the EU Court must first have had its say before a domestic court may judge on an alleged conflict. What change? In such a succession, the claims of the last word and of highest authority are losing ground to an underlying agreement about the order of succession. And where there is agreement, the claims of ultimate hierarchy are put into perspective.9 Incidentally, this succession of appearances might be said to be inherent in the preliminary 8 BVerG, 2 BvR 2661/06 (Honeywell). 9 More fundamentally: hierarchy is often based on agreement, as is well expressed in the French maxim: Grattez le décret et vous trouverez le pacte: scratch the (vertical) decree and you’ll find the (horizontal) deal. But the wisdom is also found in figures of thought such as social contract as the basis of authority. use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1574019612001010 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:32, subject to the Cambridge Core terms of https://www.cambridge.org/core/terms https://doi.org/10.1017/S1574019612001010 https://www.cambridge.org/core 4 Editorial EuConst 9 (2013) proceedings of Article 267 TFEU and is accepted on that basis by several other constitutional courts. Why is the agreement acceptable to all courts involved? As to the form and in terms of logic and primacy, strictly, the French and German Courts keep the last word, while the Court of Justice will find solace in the rule that the one who has préséance is the more important one. More substantively, the agreement institu- tionalizes the oft-praised dialogue between the courts and minimizes the chances of accidents de parcours: the Court of Justice ruling with priority on the validity of secondary Union law is able to cater for national constitutional sensitivities and, in case the Court upholds a contested Union act, the national courts ruling sub- sequently are at least fully informed of the reasons for this. So what does this mean for the law and doctrine? Succession is the way for time to proceed and produce development through a chain of events. Nature uses it, life does. And so does the law, which has put this power of time to controlled use in rules of procedure, in a way we are all familiar with. The succession of events, to return to this aspect of time, also aids the develop- ment of a rough form of the law outside of this regulated sphere, as the rulings in the Melki dance above well demonstrate. Judicial rulings are always historical events in the first place (and all law is really a specific form of history). Between the French rulings from competing instances and the ruling of an even more distant court (the Court of Justice), there is a very obvious chain. The chain is, however, not governed by procedural law, as it links up different legal orders and different systems of judicial procedure. Or is it? Are there no rules of procedure in any form, governing or guiding the succession of rulings? We would suggest taking a better look: there might be some rules there, and more might be in the making. The French constitutional procedure of the question prioritaire de constitutionnalité is obviously a legal rule governing the intercourse between distinct legal systems inside France in a temporal, proce- dural way. The Melki ruling by the CJEU (and its underlying consent) extends the reign of this rule to some extent into the EU legal order. As Arthur Dyevre dem- onstrates in his delightful piece on ‘The Melki Way’, the CJEU ‘accepted the modus vivendi offered by the Conseil d’Etat and the Constitutional Council.’10 Why is all of this so fundamentally interesting? For one thing, because in all discussion about pluralism and intercourse between legal orders, so far, the idea of bringing this intercourse (dialogue, etc.) under some incipient form of law is generally refused (it was mooted by this journal a few years ago).11 What is hap- 10 A. Dyevre, ‘The Melki Way: The Melki Case and Everything You Always Wanted to Know about French Politics (but Were Afraid to Ask)’, in M. Claes et al. (eds.), Constitutional Conversa- tions in Europe. Actors, Topics and Procedures (Cambridge, Intersentia 2012) p. 309-322. 11 ‘“The Law of Laws” – Overcoming Pluralism’, 4 EuConst (2008) p. 395-398. use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1574019612001010 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:32, subject to the Cambridge Core terms of https://www.cambridge.org/core/terms https://doi.org/10.1017/S1574019612001010 https://www.cambridge.org/core 5The Dance of Justice pening here is just that: the creation of procedural law, regulating a succession of steps, bridging legal orders in a normative, non-hierarchical way, on the basis of agreement. But is this law, really? Constitutional doctrine generally refuses to acknowledge a form of law between distinct legal orders, because this law would have no hier- archically supreme instance on which to draw its authority. Now that is precisely what time and succession allow: an escape from the shackles of hierarchy. Can courts of law be parties in an agreement leading to law? Let us turn to our last case in point. In the negotiations for accession of the European Union to the European Convention, the Court of Justice has intervened to secure the same sort of prior review by itself of EU rules before these come under the scrutiny of the Strasbourg Court. The Strasbourg Court has accepted this formula, and together the two courts have addressed their agreement to the negotiators following one of their periodic meetings, on 17 January 2011. It is included in the draft agreement on the accession of the EU to the ECHR of 14 October 2011 and likely to be part of the accession instruments.12 It is natural for legal scholarship to find fault with courts from different legal orders seeking a role in the legislative or treaty-making process, as is happening here, and thus bridging the gulf between systems in a sort of contractual way. But one may also appreciate it as a way to shed the shackles of system and harness the powers of time. There is no need to go back to founders of ancient Greek philosophy such as Anaximander and Heraclitus, but it may help, to see how at some point in our intellectual history, Time (and the time of succession specifically) was seen to be the ultimate court and source of law. It is a poor rudiment of this understanding when we defer to History as our ultimate court of law. In our modern understand- ing, the virtues of logic and system have in many respects imposed themselves 12 ‘In proceedings to which the European Union is co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Conventionrights at issue of the provision of European Union law as under para. 2 of this Article, then sufficient time shall be afford- ed for the Court of Justice of the European Union to make such an assessment and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court’; Art. 3(6) of the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms <www.coe.int/t/dghl/standardsetting/hrpolicy/accession/Meeting_reports/ CDDH_2011_009_en.pdf>, last visited on 10 March 2013. The non-EU member states who par- ticipate in the present negotiations opposed to the prior involvement mechanism, which is viewed as contrary to the subsidiarity principle and creating a privilege for the European Court of Justice, see Appendix III, section 3, Meeting report, Fourth Negotiating Meeting, at p. 15, <www.coe.int/t/ dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1%282013%29R04_EN_fi nal.pdf>, last visited on 10 March 2013. use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1574019612001010 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:32, subject to the Cambridge Core terms of https://www.cambridge.org/core/terms https://doi.org/10.1017/S1574019612001010 https://www.cambridge.org/core 6 Editorial EuConst 9 (2013) upon law, to the detriment of the virtues of time. That is understandable and it helps to run complex modern systems of law. But when law is entering poorly chartered waters such as that of the composite constitutional order involving the EU and its member states, we should not be so averse to the powers of Time as to shun them as more direct sources of our legal understanding and even of law. The situation may be expressed by saying that judicial instances are entering together into a scheme of time-sharing. This is, then, part of their sharing a legal development. This shared reality, also between judicial instances of different origins, is most obvious from the succession of judicial events and from procedures regu- lating such succession. Here is the wide subject now put to constitutional scholarship for it to pick up and develop further. WTE/JHR q use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1574019612001010 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:32, subject to the Cambridge Core terms of https://www.cambridge.org/core/terms https://doi.org/10.1017/S1574019612001010 https://www.cambridge.org/core 
work_24nrr2r2wbc2bifwbdebw6pfnu	----	None 
work_27u3q3znzfcdtlqtushn4zsdmi	----	Canterbury Christ Church University’s repository of research outputs http://create.canterbury.ac.uk Please cite this publication as follows:  Hallenberg, K. and Haddow, C. (2016) Beyond criminal justice: connecting justice and sustainability. The Law Teacher, 50 (3). pp. 352-370. ISSN 0306-9400. Link to official URL (if available): http://dx.doi.org/10.1080/03069400.2016.1262985 This version is made available in accordance with publishers’ policies. All material made available by CReaTE is protected by intellectual property law, including copyright law. Any use made of the contents should comply with the relevant law. Contact: create.library@canterbury.ac.uk Final Author Version Hallenberg, K. & Haddow, C. (2016). ‘Beyond Criminal Justice: Connecting Justice and Sustainability’. The Law Teacher. Abstract: The potential of higher education in advancing sustainability has been widely accepted and even partly realised, although a wholesale reorientation of core activities and curricula toward and embedded with sustainability is still an exception. But even big changes start small and modules that address sustainability have both strategic and symbolic value particularly in disciplines and departments where it has not previously been explicitly, or at all, addressed. This paper discusses a project which aims to introduce sustainability considerations into the criminology and criminal justice curriculum by way of a new and innovative module “Criminology for a Just Society”, developed with the support and funding from the central university sustainability initiative. The module aims to facilitate a broad and nuanced understanding of sustainability and criminology’s potential to further it, focusing on the current ecological, cultural, socio-political and economic problems and ways of addressing them. This is done through a framework of (in)justice which allows students to embed new understanding within familiar disciplinary context and language. The pedagogical approach is interdisciplinary, emphasising service learning through volunteering placements and active student engagement, and assessment which embeds critical reflection and knowledge exchange. “Criminology for a Just Society” was piloted in 2014-2015 and the paper reflects on the project, drawing from both student and staff experiences to evaluate its impact and map further developments. Introduction Awareness of the rapidly increasing environmental devastation and the resulting social and economic breakdown is widespread if often superficial. The role of the Higher Education (HE) sector in deepening the understanding is not new, although considerable momentum was gained during the United Nations’ Decade of Education for Sustainable Development 2005-2014.1 It placed particular responsibility on universities regarding research, learning, leadership and curricula development to facilitate Education for Sustainable Development (ESD) and promote its underlying values of human rights, social and economic justice, intergenerational responsibility, protection and restoration of ecosystems, respect for cultural diversity and commitment to peace2. This is particularly crucial as universities and academic knowledge become increasingly commodified.3,4 Echoing Furedi,5 Walters6 argues that the value of education is measured in market terms, not for its implicit educational value, or even social or personal empowerment. ESD represents a countermovement of sorts to this, valuing education for its transformational potential, not just for the individual but for the world at large. Barth and colleagues7 see this not just equipping people with knowledge and skills to further sustainability, but also encouraging reflection on and responsibility for decisions and behaviour of oneself and others. The current paper reflects on a project aiming to introduce sustainability considerations into the criminology and criminal justice curriculum by way of a new and innovative module “Criminology for a Just Society” (CfJS). The spark for the project was of a personal and professional nature, and the introduction discusses its pedagogical and disciplinary underpinnings as well as practical development, providing a brief overview of the module itself. ESD encompasses ideas of other values-driven/adjectival educational and curriculum movements seeking to embed human rights, citizenship education, inclusivity/diversity, and democratic/collaborative approaches8,9 and can in many ways be considered an umbrella term for all. The philosophical roots of ESD and other such values-driven movements reside in liberal education and the concept of a free university, the work of Von Humboldt and Hegel, later John Dewey and John P Miller10. The approach aligns with our personal values and view of HE as playing a role in developing not just knowledgeable and skilled individuals but aware, responsible and active 1 P. Jones, D. Selby and S. Sterling, “Introduction”, in P. Jones, D. Selby, and S. Sterling (eds), Sustainability Education: Perspectives and Practice across Higher Education. (London, Earthscan, 2010). 2 UNESCO, United Nations Decade of Education for Sustainable Development (2005-14): Draft International Implementation Scheme (Paris, UNESCO, 2004). 3 R. Walters, “Critical criminology and the intensification of the authoritarian state” in A. Barton, K. Corteen, D. Scott, and D. Whyte (eds.), Expanding the criminological imagination: Critical readings in criminology (Cullompton, Willan, 2007). 4 A. Barton, K. Corteen, J. Davies and A. Hobson, “Reading the Word and Reading the World: The Impact of a Critical Pedagogical Approach to the Teaching of Criminology in Higher Education” (2010) 21 Journal of Criminal Justice Education 24-41. 5 F. Furedi, Where Have All the Intellectuals Gone? 2nd ed. (London, Continuum, 2006). 6 Walter, supra n.3 7 M. Barth, J. Godemann, M. Rieckman, and U. Stoltenberg, (2007) “Developing key competencies for sustainable development in higher education” (2007) 8 International Journal of Sustainability in Higher Education 416-430. 8 A. Ryan, Education for sustainable development and holistic curriculum change: A review and guide (London, Higher Education Academy, 2011). See: http://efsandquality.glos.ac.uk/toolkit/AR_HEA.pdf (accessed 02 June 2015) 9 D. Tilbury, Education for Sustainable Development: An Expert Review of Processes and Learning, (Paris, UNESCO, 2011). See: http://unesdoc.unesco.org/images/0019/001914/191442e.pdf (accessed 26 Novem2016) 10 Ryan, supra n. 8 ones; the 'tree of knowledge' being of and for the good11. It also reflects Canterbury Christ Church University’s (CCCU) values of “transforming individuals, creating knowledge, enriching communities and building a sustainable future”12 and its strategic aim to embed social and environmental sustainability throughout teaching and research13. Sustainability has traditionally been understood in relation to the environment and issues of ‘green development’14. Contemporary understandings have advanced this concept to include three key spheres of sustainable development: environmental, economic and social15. While each strand is relevant to criminology and law, social sustainability with its emphasis on ethics and wellbeing has particular resonance, highlighting the broad and interdisciplinary nature of sustainability. Indeed, current research highlights how the negative effects of climate change are most experienced by lower-income and other disadvantaged groups, who often contribute least toward its causes.16 This differentiated responsibility was acknowledged at nation state level as the recent COP21 Paris Agreement17 placed obligations on developed countries to provide financial assistance to the developing states. Therefore, the different spheres should not be considered as separate, but rather viewed as interlinking aspects of sustainability which work together to create a sustainable society: “A truly sustainable society is one where wider questions of social needs and welfare, and economic opportunity are integrally related to environmental limits imposed by supporting ecosystems.”18 Additional attention has been given to the importance of implementing such measures in ways which enhance and respect diversity and individual cultures, giving birth to cultural sustainability as a fourth strand19. In spite of the range of these overarching themes, the links between sustainability and other disciplines are often overlooked. Specific theoretical approaches within criminology illustrate clear overlaps with the sustainable development agenda. Building on a longstanding tradition of critical social research, critical criminology seeks to highlight aspects of crime and victimisation generally neglected within society, championing the ‘view from below’, giving voice to the voiceless and enabling grassroots change20. In parallel, the critical legal studies and critical jurisprudence approaches have continued to draw attention to the intersections of political and economic interests 11 D. Maskell and I. Robinson, The New idea of a University (London, Imprint Academic, 2002). 12 CCCU, Our Mission and Values. See: http://www.canterbury.ac.uk/about-us/our-mission-and-values.aspx (accessed 02 June 2015) 13 CCCU, Strategic Framework 2015-2020. See: http://www.canterbury.ac.uk/about-us/docs/Strategic-Framework-2015- 2020.pdf (accessed 02 June 2015) 14 W.M. Adams, Green development: Environment and Sustainability in a Developing World, 3rd Edition (Oxon, Routledge, 2009) 15 UNESCO, United Nations Decade of Education for Sustainable Development (2005-2014): International Implementation Scheme (Paris, UNESCO, 2005). See: http://unesdoc.unesco.org/images/0014/001486/148654e.pdf (accessed 02 June 2015) 16 Banks, N. et al. Climate change and social justice: an evidence review, (York, Joseph Rowntree Foundation, 2014) See: https://www.jrf.org.uk/report/climate-change-and-social-justice-evidence-review (accessed 02 February 2016) 17 UN, Adoption of the Paris Agreement, (Paris, UN, 2015) See: https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf (accessed 22 February 2016) 18 J. Agyeman, R. Bullard and B. Evans, Just Sustainabilities: Development in an unequal world. Cambridge, Mass., MIT Press, 2003) p. 78 19 supra n. 15 20 P. Scraton, Power, Conflict and Criminalisation (London, Routledge, 2007) and law, as well as the social divisions and injustices this can propagate21. More recently zemiology, which involves a move away from a focus on crime towards a broader consideration of social harms, has demonstrated a further alignment with many of the problems which sustainable development seeks to address22. Similarly, Loader and Sparks’23 call for a public criminology which both engages with lay understandings of crime and has a greater impact on policy and practice reflects the emphasis on action and change emphasised by the sustainability movement. Green criminology with its broad focus on ecological risks and harms, wildlife crime and animal abuse24,25 is an increasingly active area of research and theorising. Perhaps the most explicit connections between criminology and sustainability are those made by Agyeman and colleagues26,27 focussing on the concept of justice. Issues of inequality and injustice can be linked to the four areas of sustainability outlined, and it is noted that “justice and sustainability are intimately linked and mutually interdependent, certainly at the problem level and increasingly at the solution level”28. The issue of ‘solutions’ is particularly poignant, for we must go beyond the talk of the harms and crimes, to transcend description and critique in order to facilitate students' understanding of “human, legal, and civil rights as well as criminal and social wrongs, resistance as well as oppression and redress as well as injustice.”29 In light of this, CfJS aims to facilitate a broad and nuanced understanding of sustainability and criminology’s potential to further it, focusing on the current ecological, cultural, socio-political and economic problems and ways of addressing them. This is done through a framework of (in)justice which allows students to embed new understanding within familiar disciplinary context and language. The module is organised around the four themes of environmental, social, economic and cultural justice, the topics of academic sessions reflecting these and covering such issues as wildlife crime, multiagency working in communities, modern slavery and rights of indigenous peoples. Incorporation of service learning through embedded volunteering forms a key part of the module, and this will be discussed at some length later on. The module was developed in 2013-14 with the support and funding from CCCU’s Futures Initiative, a strategic seed-funding and capacity development programme seeking to integrate sustainability perspectives into the curriculum30 and piloted in 2014-15. It was planned in close collaboration with the students who helped shape the subject content, teaching, learning and assessment strategies through a series of focus groups, and who then took the module the following year. As the HEA/QAA guidance31 suggests, student involvement in curriculum development can facilitate a collaborative, more democratic learning environment, creating a sense of ownership and personal responsibility, important not just for ESD but for learning in general. The students agree: 21 R.M. Unger, The Critical legal Studies Movement: Another Tine, A Greater Task (London, Verso, 2015) 22 P. Hillyard, C. Pantazis, S. Tombs and D. Gordon (eds), Beyond Criminology: Taking Harm Seriously (London, Pluto Press, 2004) 23 I. Loader and R. Sparks, Public criminology? (New York, Routledge, 2010) 24 P. Beirne and N. South, N. Issues in Green Criminology: Confronting Harms Against Environments, Humanity and Other Animals (Cullompton, Willan, 2007) 25 N. South and A. Brisman, Routledge International Handbook of Green Criminology (London, Routledge, 2012) 26 supra n. 16 27 J. Agyeman, Introducing Just Sustainabilities: Policy, Planning, and Practice (London, Zed Books, 2013) 28 supra n. 16 p. 3 29 supra n. 4 p. 34 30 P. Rands, "Five Years of the futures Initiative (2011-16), Building capacity for an uncertain world" (Canterbury, Canterbury Christ Church University, 2016). See: https://www.canterbury.ac.uk/about-us/docs/sustainability/Futures-Initiative-report- 2016.pdf 31 HEA/QAA, Education for sustainable development: Guidance for UK higher education providers (London, HEA, 2014). See: http://www.qaa.ac.uk/en/Publications/Documents/Education-sustainable-development-Guidance-June-14.pdf (accessed 02 June 2015) “Having a voice to say what you have in your education is really important because we had a chance to say what we wanted to go into a lecture, what we wanted from the assignments, which made us really motivated.” (Samantha) “It feels more personalised, you feel such a part of it whereas in other lectures you feel like you’re just a student and one of many, but then this gets you more involved.” (Charlotte) Structure of the paper Sipos and colleagues32 use Bloom’s taxonomy of cognitive, psychomotor and affective domains of learning33 in their model of ‘transformative sustainability learning’ which engages head, hands and heart. This provides the organising structure for the current paper. The ‘Head’ section briefly outlines the academic content of the module, focussing on the changes in knowledge, developing understandings of sustainability, its links to criminology and the interdisciplinary approach adopted. In the ‘Hands’ section we discuss the service-learning and volunteering elements of the module and why these are particularly suited for ESD. Links to employability are also explored. The ‘Heart’ section considers the role of critical reflection in facilitating transformative learning, and the, sometimes difficult, process of changing understandings, attitudes and behaviours ESD can initiate. Finally, we will discuss plans for future developments. Including the student voice Student involvement was key to the development and running of the module, and students’ experience provides the core for evaluating its success. Throughout, the paper uses the student voice to illustrate and evidence the different aspects of CfJS and its impact. The quotes are drawn from two sources: students’ reflective blogs which formed a key part of the assessment (see ‘Heart’ section below for more detail) and a focus group discussion conducted at the end of the module. Focus groups are well-suited for capturing understandings of any shared experience among a group of individuals34, facilitating the creation of a dialogue among participants with minimal input from the interviewer. This format also provides opportunities for consensus or disagreement among participants, illuminating significant opinions and conflicting views, made apparent here e.g. with students giving contrasting accounts of what the term sustainability means to them. Power relationships in research are often problematic and a focus group risks some participants dominating the discussion while less vocal members are overshadowed. However, the students knew each other well having been in class together each week throughout the academic year and were comfortable participating in group discussions. Similarly, as the student participants were arguably less powerful than us as facilitators and lecturers, an additional concern was over social desirability. However, 32 Y. Sipos, B. Battisti and K. Grimm, (2008). "Achieving transformative sustainability learning: engaging heads, hands and hearts" (2008) 9 International Journal of Sustainability in Higher Education 68-86. 33 B.S. Bloom, B.B. Masia and D.R. Krathwohl, Taxonomy of Educational Objectives (Two Volumes: The Affective Domain & The Cognitive Domain) (New York, NY, David McKay & Co, 1964) 34 R.D. Wimmer and J.R. Dominick, Mass Media Research: An Introduction, 9th Edition (Wadsworth, Cenage Learning, 2011) having been involved in the module development students were familiar with providing honest and constructive feedback. The focus group formed a part of a pedagogic action research study designed and conducted in adherence with the BERA Ethical Guidelines for Educational Research35. Given that the group discussion element was similar to regular class discussions and the subject matter was not sensitive, there were no significant risks of harm to the participants or the researcher. In any research project where participants are recruited coercion is a concern, and it is important to be aware that an individual’s choice about participation may be constrained36. As the students involved were all awaiting their final marks for the module, it was made clear that their decision to participate would have no positive or negative impact on these and that there were no incentives involved. Informed consent was gained through information sheets and adhering to principles of confidentiality and anonymity students were also offered pseudonyms in the writing up of the research, although all waived this right, choosing to use their real names. At the same time, consent to use students’ reflective blog entries for the purposes of this article and beyond was sought and granted. Indeed, we have been explicit in our desire to share the module experience widely and discussed the various research and publication plans openly with the students throughout the module. The response has always been one of excitement and enthusiasm. It should also be noted that the first draft of the current article was read and commented on by the students whose feedback helped to shape it further. Head: Developing Interdisciplinary Understanding A key pedagogical approach that CfJS adheres to is interdisciplinarity. Criminology, as we often describe it to our students, is a discipline that waits in the dark alley, mugs other disciplines and then searches their pockets for useful theories, concepts and methods. While its repeat victim is sociology, it also steals from psychology, economics, public administration, biology and evolutionary studies. As something that integrates rather than just adds multiple perspectives37 interdisciplinarity is therefore already a core criminological approach and explicitly embedded into CfJS’ intended learning outcomes. The content and readings which cover the four dimensions of sustainability draw heavily from beyond criminology, guest speakers from other disciplines and outside academia, and assessments all encourage students to consider the ‘bigger picture’. This section will illustrate the development of our students’ understandings of sustainability and the embedding of this within a framework of justice. Given the broad but shallow proliferation of information about the problems which sustainable development seeks to address noted earlier in this paper, all participants demonstrated some pre- existing personal interest in issues associated with the sustainability agenda, perhaps explaining their selection of the module: 35 BERA, “Ethical Guidelines for Educational Research” (London, British Educational Research Association, 2011) See: https://www.bera.ac.uk/wp-content/uploads/2014/02/BERA-Ethical-Guidelines-2011.pdf (Accessed 15 June 2015) 36 J. Mason, Qualitative Researching, 2nd Edition (London, Sage, 2002). 37 P. Jones, D. Selby and S. Sterling “More than the Sum of their Parts? Interdisciplinarity and Sustainability”, in P. Jones., D. Selby and S. Sterling (Eds.) Sustainability Education: Perspectives and Practice across Higher Education (London, Earthscan, 2010) “I watched something years ago and it was about fair trade bananas and it just really switched something on in my head.” (Laura) This example of personal consciousness regarding fair trade demonstrates an initial awareness of economic injustice, although not couched in this framework. In spite of such comments, participants all recounted being largely unfamiliar with sustainability at the beginning of the module, with statements such as “I didn’t know what [sustainability] was at all.” (Samantha) being common. When asked what awareness of this area they did have, this was largely rooted in the environmental aspects of sustainability, and answers such as ‘Pollution’ (Abbie) and ‘Climate change’ (Laura) reflected the conception that sustainability is solely a ‘green’ issue38, a notion which the module sought to both expand upon and move away from. By the end of the module the students had developed understandings of sustainability which were divergent and individualised yet overlapping and reflective of its content: “[Sustainability means] equality and making sure that everyone has equal opportunities and chance to get things.” (Charlotte) “In one of our early sessions there was that quote about how we should leave the world better than we found and it and that has stuck with me through all of the lectures, and that’s how I kind of see sustainability and can be applied to all of the strands.” (Laura) Such comments also indicate a move away from an understanding solely of the problems which sustainability seeks to address, and demonstrate a more focussed critical consideration of solutions to these problems through sustainable development. This more sophisticated academic knowledge was evidenced through the students’ observations of the connections between the various strands of sustainability studied in class: “Cultural justice, because a lot of it was protecting indigenous people but it was also people destroying their environment to make a company that was going to pollute it, so it was like social, cultural and environmental.” (Abbie) By the end of the module, we were delighted to observe that our students held a holistic and multi- faceted understanding of sustainability which reflects the integrally linked nature of the social, environmental, economic and cultural dimensions advocated by Agyeman et al.39. The overlap between criminology and the sustainable development agenda noted earlier in this paper provided a fertile ground for fostering systemic thinking which integrates, adapts, connects and complements, understands and manages complexity, and considers consequences of actions40. As well as a more nuanced understanding of sustainability, students’ awareness of the connections between this concept and criminology were apparent by the end of the module. This was in spite of initial insecurities about disciplinary boundaries which led to questions such as “how does this fit in 38 supra n. 14 39 supra n. 24 40 supra n. 2 with my degree?” (Samantha). Social justice appeared to resonate most strongly with the group, with suggesting that this aspect of the sustainability agenda was most obviously linked to their studies thus far: “I kind of find the poverty and social justice bit the most interesting so that’s the bit that I had read most about.... But I suppose you have to find out what it means to you really.” (Laura) Given the focus on issues such as social exclusion and its broader structural indicators by left realism theorists such as Jock Young41 and the tradition of attention to marginalised groups such as females and victims evidenced by early feminist and victimologist criminological perspectives, the propensity for social justice to be the most obviously relevant strand of sustainability to criminology is apparent42,43. Yet as the year progressed our students began to identify aspects of sustainable development which they felt to have a personal significance, the transformative impact of which will be discussed later in this paper, both within and beyond social justice: “With the environmental [justice] I didn’t really think anything other than climate change and then when we had stuff about wildlife crime I found that really interesting, because when I think of crime I think of it as people on people, and then the stuff about the big companies and oil and stuff, it never clicked in my head that it was criminology.” (Laura) “But it’s people that are doing these crimes and doing it to the environment has an effect on everyone else, like socially and the environment around you.” (Charlotte) These comments demonstrate real critical engagement with the intersections between crime and the problems facing the sustainable development agenda. The ability to make these connections parallels the ‘deep learning’ approach theorised by Marton and Säljö44,45. While surface learning involves absorbing information for the purpose of the task at hand, deep learning involves evaluating this knowledge and relating it to previous information in the context of the broader topic to develop a critical understanding which actively questions the material at hand. The students’ accounts demonstrated a tangible change in their awareness of sustainability and associated issues as not only relevant but integral to the criminological agenda. This was encouraging to see from our own perspective and affirmed that modules such as these which may have small beginnings can have a big impact. This also prepared and impassioned students to apply this knowledge and evaluate policy and practice in the context of their volunteering placements. 41 J. Young, The Exclusive Society: Social Exclusion, Crime and Difference in Late Modernity (London: Sage, 1999). 42 S. Schafer, The Victim and His Criminal (New York: Random House, 1968). 43 C. Smart, Women, crime, and criminology: A feminist critique (London, Routledge, 1976). 44 F. Marton, and R. Säljö “On qualitative differences in learning: 1. – Outcome and process” (1976) 46 British Journal of Educational Psychology 4. 45 F. Marton, and R. Säljö “On qualitative differences in learning: 2. Outcome as a function of the learner’s conception of the task” (1976) 46 British Journal of Educational Psychology 115. Hands: Enacting Sustainability and Learning through Service The use of experiential projects including service-learning is one of the key teaching and learning methods for ESD46. It is closely related to the ambiguous if fashionable concept of community engagement, of which student volunteering has become the most visible and easily recognisable aspect47. Such community action has a long tradition going back to the 1960s and right back to the University Settlements for the urban poor provided in the 19th and 20th centuries48. The difference is that unlike the student activism of 60s and 70s, the current initiatives are formalised and supported by the universities themselves rather than being student-led via the student unions49. Research estimates that as much as 63% of students volunteer during the course of their university degree50. It is seen to bring substantial benefits both to the students and to the communities, but these are often assumed rather than proven and the current research is limited to case studies (ibid) as is of course the current paper. It should be noted that we have not (yet) sought to evaluate the impact of students’ volunteering on their placement organisation and the discussion below therefore gauges the student, rather than community, impact. Reflecting the ESD ethos of active and service-learning, a built in volunteering placement is central to CfJS. Not only does this demonstrate a commitment to CCCU’s value of “the development of the whole person”51 by embedding employability skills and personal development within the curriculum, it also enhances the links between the university and external partner organisations. While students were responsible for arranging their own placement, the remit for this was broad provided that they were able to identify some links to justice and sustainability. The assessment for the module is comprised of three elements and integrates the volunteering placement in each. There are two pieces of written coursework: a reflective blog focussed on the student’s volunteering experience which is to be completed across the course of the academic year and a case study requiring students to critically evaluate the policies and practices of their chosen volunteering organisation in relation to theories of sustainability and justice. The final assessment is a student-led ‘end of module conference’, which required students to give a short presentation on their experience to their volunteering organisations, allowing them to gain an understanding of academic knowledge exchange. The experiences and benefits reported by the students on the CfJS module echo those of the vast majority of student volunteers52, citing significant learning and development through the volunteering placement. It was noted that embedding service learning within the module pushed students to obtain this practical experience: 46 D. Cotton and J. Winter “It’s not just Bits of Paper and Light Bulbs: A review of Sustainability Pedagogies and their Potential for use in Higher Education” in P. Jones., D. Selby and S. Sterling (Eds.) Sustainability Education: Perspectives and Practice across Higher Education (London, Earthscan, 2010) 47 C. Holdsworth and J. Quinn “Volunteering in English Higher Education” (2010) 35 Studies in Higher Education 113 48 J. Wyatt “Persistent ghosts: Romantic origins of the idea of the university communities” in I. McNay (ed) Higher education and its Communities (Buckingham, Open University Press, 2000) 49 supra n. 43 50 G. Brewis, J. Russell and C. Holdsworth, Bursting the Bubble: Students, Volunteering and the Community Research Summary (Institute for Volunteering Research, 2010) See: https://www.publicengagement.ac.uk/sites/default/files/NCCPE%20- %20Bursting%20the%20bubble.pdf (Accessed 02 June 2015) 51 supra n. 12 52 supra n. 46 “I’ve never really actually pushed myself to go out and do it [volunteer] and I thought ‘Oh, I actually have to go out and do it now’” (Charlotte) A common observation was that volunteering presented new challenges for students. While the personal developments stemming from this experience will be outlined in the subsequent section of this study, it is worth noting that for most students the focus of their selected placements was often beyond their pre-existing experiences: “I’d never worked with children before, I didn’t know what to expect. It took me a few weeks to settle in, I was some sort of new figure of authority and they wouldn’t listen to me.” (Abbie) “Some of the stuff we were told about that the offenders had done I found really difficult not to let it affect me.” (Laura) In relation to developing understandings of sustainability, participants suggested that applying the knowledge gained in class to the practical setting of their volunteering work allowed them to see how sustainability in action: “Social inclusion and making everyone feel welcome, the atmosphere there was like anyone can come or go whenever they please.” (Charlotte) “It was very difficult for me to make the connections because they weren’t as obvious. I don’t think the scouts is very justice focussed… But the longer I stayed there I kind of realised that actually they do do things to help the environment, they do do things to help inclusion, like social and cultural inclusion.” (Abbie) The second comment above suggests that even where the links to sustainability were less apparent, students were nevertheless able to make their own connections through their classroom learning to service based elements of the module. Indeed, community engagement should not be considered not as a separate ‘third mission’ of universities but as an integral part of teaching and research53, able to strengthen both through contextualisation54. “I really feel that this training tested all aspects of my education at university as well as teaching me so many new skills that I can take with me in my future career.” (Laura) The links between volunteering and employability are prominent in the current discourse. However, such instrumental emphasis on skills acquisition and future benefits can undermine the community commitment and active citizenship ethos by trivialising the inequalities or even reinforcing them by 53 P. Inman and H.G. Schuetze, “The community engagement and service mission of universities: An introduction by the editors.“ in P. Inman and H.G. Schuetze (eds.) The Community Engagement and Service Mission of Universities (Leicester, Niace, 2010). 54 H.G. Schuetze, “The ‘third mission’ of universities: Community engagement and service” in P. Inman and H.G. Schuetze (eds.) The Community Engagement and Service Mission of Universities (Leicester, Niace, 2010). positioning local communities as beneficiaries of charity55. The discourse of students receiving enhanced learning while target/local communities gain social justice is problematic as it assumes the two groups are separate, ignoring the heterogeneity within both56. CfJS sought to mitigate this in various ways. During development we worked closely with a local community network, facilitating student volunteering opportunities but also benefitting from critical input on social justice and capacity building in the local communities. The assessment strategy encouraged critical reflection on the volunteering organisations, the students’ role in them and the degree to which they furthered the different aspects of justice and sustainability. The end of module conference was attended by representatives from the students’ volunteering placements, providing an opportunity for further dialogue. The students found the approach both challenging and rewarding and the next section explores the role of critical reflection and its ability to facilitate transformational learning further. It is clear that students’ ties are often not just to the community immediate to the university. Furthermore, the developing allegiance to sustainability and community engagement as concepts and practices must be both contextualised and de-contextualised, transcending the classroom and the volunteering placement. Ideally, outcomes of such opportunities become sustainable beyond the lifespan of the module, which can act as a catalyst for individual change and long-term adaptation of sustainable practices. This is evident in our group of CfJS students, all of whom plan to continue volunteering while for some the experience is set to have even more profound consequences. One student who volunteered with children with special educational needs is considering applying for a PGCE in primary education. Another student found herself so interested and passionate about her experience of volunteering with adults with mental health problems that she applied, and was accepted, onto a Masters programme in social work. Heart: Transformational Learning through Critical Reflection While the term ‘reflection’ appears vague, Boud et al. describe it as “an important human activity in which people recapture their experience, think about it, mull it over and evaluate it”57. In the academic context the outcome is generally specific to learning, action or clarification.58 Ryan59 posits that reflection is comprised of two key elements: examination of recent experiences and reorientation of attitudes to future actions. Embedding reflection in teaching therefore has an integral transformative potential. Such personal development is gaining increasing importance in higher education, and this “emphasis on refection signals a fundamental shift in the meaning of studentship and the purposes of higher education”60. A central problem with facilitating reflection in higher education parallels the broader distinctions between ‘deep’ and ‘surface’ learning identified 55 supra n. 43 56 C. Holdsworth and J. Quinn “The Epistemological Challenge of Higher Education volunteering: “Reproductive” or “Deconstructive” Volunteering?” (2012) 44 Antipode 38. 57 D. Boud, R. Keogh and D. Walker “Promoting Reflection in Learning: A model” in D. Boud, R. Keogh and D. Walker (eds.) Reflection: Turning experience into learning (London, Kogan Page, 1985) p.19 58 J. Moon, A Handbook of Reflective and Experiential Learning (London, Routledge Falmer, 2004). 59 M. Ryan “The pedagogical balancing act: teaching reflection in higher education” (2013) 18 Teaching in Higher Education 144. 60 S. Clegg and S. Bradley “The implementation of progress files in higher education: Reflection as national policy” (2006) 51 Higher Education 465 by Marton and Säljö6162. Learner reflection is carried out at varying levels of engagement, ranging from surface level reviewing of an experience to in-depth critical reflection which is transformative in nature.6364 It is this later level which embodies Ryan’s second element, whereby future experience is reimagined and personal development takes place, reflecting ‘deep’ and transformative learning. The learning and assessment strategy of CfJS explicitly solicits reflection-on-action and reflection-in- action of the volunteering placements65. In the parlance of Willmore and Tweddell66, this is an ‘embedded elective opportunity’ where pedagogy of a specific unit of study is learning through reflective action. This brings variation to the Applied Criminology curriculum where opportunities for reflection are scarce, with one participant highlighting that “You never really do that at uni, it’s usually writing about a topic” (Charlotte). The approach allowed students who previously had no opportunity to engage in reflective writing to break from the norm, with some presenting a particular aptitude for this form of assessment and ultimately achieving higher marks. A reflective blog approach rather than a reflective essay had the advantage of requiring consistent reflection throughout the course of study rather than one final reflection after the placement, combatting the surface learning approach of learning for assessment rather than learning through it. The key benefit of a reflective blog as a learning tool is the potential to facilitate transformation through reflection which has been discussed thus far.67 Students on the module demonstrated this level of deep critical reflection in their blog entries, going beyond merely describing what happened to illustrate how this experience has been reconceptualised and will impact on future behaviour: “I can understand how easy it is to get to emotionally involve especially when you were trying to help people. I knew the boundaries and I over stepped those boundaries. When you are volunteering, you forget you have a conduct that you should follow… I do 100% take full responsibility for what has happened and have learnt from the experience and will take that experience to the next volunteer placement I chose to go to.” (Samantha) Our students noted the importance of developing these critically reflective skills. Both the focus and format of the module provided them with learning opportunities highlighted as beyond those usually available within their programme. While this paper has already touched on the merits of volunteering for applying academic knowledge and engaging with communities, the propensity for this reflection on- and in-action to facilitate deep transformative learning at a personal level must be emphasised: “I think the module’s given me a lot of skills to take away from the university with me that I haven’t got from other modules and that I would never have got from other modules.” (Abbie). 61 supra n. 40 62 supra n. 41 63 J.D. Bain, R. Ballantyne, C. Mills, N.C. Lester Reflecting on Practice: Student teachers perspectives (Flaxton, Post Pressed, 2002). 64 R. Grossman “Structures for Facilitating Student Reflection” (2008) 57 College Teaching 15. 65 D. Schön, The Reflective Practitioner (San-Francisco, CA, Jossey-Bass, 1983). 66 C. Willmore and H. Tweddell, ”Experiences of ‘Reflective Action’: forging links between student informal activity and curriculum learning for sustainability” in W. Leal Filho (ed) Transformative Approaches to Sustainable Development at Universities: World Sustainability Series. (Switzerland, Springer International Publishing, 2014) 67 R.D. Garrison and H. Kanuka “Blended learning: Uncovering its transformative potential in higher education” (2004) 7 Internet and Higher Education 95. “It helped me to understand myself a bit more and how to improve on what I’ve been doing. If I think I’ve done something not as well as I could have done, then [I’ve learned] how to change that.” (Hannah) Schön’s68 portrayal of the ‘reflective practitioner’ illustrates that reflection arguably lends itself more to disciplines which are vocational in nature and involve experiential learning. Criminological study tends not to hinge on learning through practice, making opportunities for critical reflection such as those outlined rare, yet this form of thinking is a crucial component of ESD. Cotton and Winter69 note the need for time in the curriculum for exploration, discussion and reflection of sustainability issues. This reflection should be turned inward so that we may become conscious of, clarify, challenge and de- and reconstruct values and through the process start to understand how they, together with our background and culture, shape our knowledge perceptions of the world.70 Our students noted the challenges to their understandings and in particular the heightened awareness and concern they developed surrounding some of the issues raised in the module and experienced in their volunteering placements: “I was very ignorant towards this stuff before I did the module.” (Abbie) “When she pulled up the map about how we are gonna run out of water and how we’re gonna run out of food I just thought ‘oh my god how did I not know this?’” (Laura) Throughout the course of the module, students’ learning and experiences changed their perceptions of many of the issues covered as exemplified above. Sipos et al.71 highlight that transformative sustainability learning objectives which focus on the heart aim to “impart participants with a greater sense of authority and enablement to participate as decision-makers in their socio-cultural realities”. Therefore such learning is as much about changing attitudes as it is about changing actions, particularly as habits acquired during university often become habits of a lifetime.72 The potential for transformative learning in sustainability is therefore considerable when supported by formal curriculum which provides opportunities for reflective practice7374. It is the actualisation of these changes in attitudes through the long-term embedding of sustainable practices which CfJs aims to facilitate among students, and evidence suggest that it has succeeded in doing so, at least to some extent: “The big one for me is probably don’t judge until you know. A lot of people are going through something that you probably couldn’t even imagine what they’re going through.” (Samantha) 68 supra n. 61 69 supra n. 42 70 UNESCO, Education for Sustainability, From Rio to Johannesburg: Lessons learnt from a Decade of Commitment (Paris, UNESCO, 2002) See: http://unesdoc.unesco.org/images/0012/001271/127100e.pdf (accessed 15 June 2015) 71 supra n. 28 72 supra n. 62 73 A. Ryan and D. Cotton, “Times of change: shifting pedagogy and curricula for future sustainability” in S. Sterling , L. Maxey and H. Luna (eds.) The Sustainable University Progress and prospects (Earthscan, Abingdon, 2013) 74 supra n. 62 Although increased awareness of issues such as discrimination and social equality may appear insignificant in terms of tangible impact in addressing these problems, such realignment of pre- conceived ideas about marginalised groups which challenges divisions is central to addressing such social injustice. These statements support Eyler’s notion that “Once students are heavily immersed in the complexities of a social issue, they may find that they are in a position where their old beliefs are simply not adequate for dealing with the issues.”75 Indeed, increased knowledge goes hand in hand with increased ambiguity, and the risk of cognitive dissonance: an unpleasant psychological tension arising from holding inconsistent “thoughts, attitudes, beliefs or states of awareness of behaviours.”76 This is particularly true for sustainability which challenges not just our understanding, but our values and behaviours.77 The group members were all passionate about raising awareness around the problems facing the sustainable development agenda and taking action to address these, including continuing to volunteer: “It’s made me think about things that bigger companies do that I’ve never really thought about but now I can confidently speak to someone about that.” (Laura) “It’s given me a much broader view of what actually happens in the world and what I can do to change that.” (Hannah) We have envisaged from the module’s inception that the outcomes of the opportunities provided by CfJS would become sustainable beyond the lifespan of the module, and that learning in this context would be transformative beyond the students’ usual realms of experience in university. Howatson- Jones advises students: “Writing about your experiences will help you to make sense of them, so that your understanding lasts and contributes to your lifelong learning.”78 CfJS certainly appeared to act as a catalyst for individual change and we hope that the adaptation of sustainable practices that our group have suggested is long term. Future Developments While we are extremely pleased with the impact of the module evidenced by our students thus far, the end of this pilot year provides us with an opportunity to critically reflect on our own pedagogic practice. In relation to students’ understandings of sustainability and its links to justice, their academic knowledge was clearly enhanced through the interdisciplinary and varied nature of the module content. Yet they did highlight the need for ‘more help’ (Abbie) with setting some of the specific issues discussed within the contextual framework of sustainability and justice. We will therefore endeavour to provide a more detailed introduction to these issues at the beginning of the 75 J. Eyler, J. “Reflection: Linking Service and Learning—Linking Students and Communities” (2002) 58 Journal of Social Issues 517 p. 527 76 M.A. Hogg, G.M. Vaughan, Social Psychology, 6th ed. (Harlow, Pearson Education Limited, 2011) 77 T. Ngwana “Learning and Teaching for Sustainable Development in Higher Education: Examining Dissonance and Instructional Strategy” in L. Bell, H. Stevenson and M. Neary (eds.) The Future of Higher Education: Policy, Pedagogy and the Student Experience (London, Continuum, 2009) 78 L. Howatson-Jones, Reflective Practice in Nursing, 2nd Edition (London, Sage, 2013) module. Similarly, the volunteering placements were successful in equipping students with applied knowledge and skills, yet a more structured system for monitoring students in these settings is needed. Where students encounter difficulties within their placements these ‘critical incidents’79 are opportunities for personal development, but there is also an increased need for pastoral support. Most significantly, there are of course challenges with implementing and engaging students in reflection, some of which were experienced within this module. It must be remembered that “critical reflection is not an intuitive skill”80 and students may initially struggle with this more personal form of writing. A ‘skills session’ familiarised students with reflective writing techniques, yet some of our students’ early entries evidenced more descriptive rather than critical accounts and our focus group raised a need for more regular guidance of this nature throughout the module. As well as addressing these issues, we intend to expand the module in future academic years. Owing to an increasing number of electives, sustainability modules are often in competition with other specialist areas, instead of being seen as something that overarches and connects them and the number of students enrolled on them is comparatively low.81 CfJS only attracted five students in its first year, most of whom were also involved in the module development which was highlighted as a key benefit. Students undertaking the module in 2015-16 are currently engaged in pre-module focus groups to discuss potential new content, an aspect of CfJS which we plan to continue. We hope that as the module becomes established within the school it will recruit more widely rather than being viewed by students as too different; something outside their comfort zone and prior learning, too risky especially during final year when degree classification concerns are paramount82. There is also scope to enhance sustainability focus within the criminological curriculum beyond the CfJS optional module format. Without significantly expanding programme content in an often already crowded core curriculum, increased embedding of the language of sustainability in core modules, for example in areas such as critical criminology or legal studies, would highlight the links to a wider range of students. At CCCU an ESD curriculum mapping tool has been developed to aid the process across all academic programmes, while an extracurricular project exploring the criminal justice and sustainability links in particular has proved another successful approach.83 As well as highlighting the links for students, this would also evidence the centrality of sustainability in a variety of disciplines to academics themselves who may in turn reflect on where sustainability fits within their programmes. A further potential for development is the opportunity to evaluate CfJS’ impact on volunteering organisations in the coming years. While we were able to speak with representatives informally at the end of year module conference, a more structured approach such as a survey would provide valuable feedback and further emphasise the centrality of connecting the university and community to the module. 79 supra n. 70 80 supra n. 55 p.154 81 A. McGoshan and S.Martin, From strategy to implementation: the second evaluation of the Green Academy programme (HEA, 2014) See: https://www.heacademy.ac.uk/sites/default/files/resources/2nd_Green_Academy_Evaluation_2014_FINAL.pdf (accessed 02 June 2015) 82 Ibid. 83 K.M. Hallenberg and M. Tennant, 'Criminology Picks Up the Gauntlet: Responses to the Whole Earth? Exhibition' (Inspire: HEA Annual Social Sciences Conference, Manchester, UK, 3-4 December 2015) Conclusions “Even if you do something really small it can have a big effect.” (Hannah) CfJS is part of a deliberately grassroots level approach to embedding sustainability and changing culture through the cumulative effect of individual projects that CCCU has adopted.84 Indeed, modules that explicitly address sustainability bear both strategic and symbolic relevance.85 They not only signal the importance of sustainability to their discipline, programme and institution, but can also act as an example and catalyst for change, particularly where sustainability considerations have not previously been explicitly, or at all, addressed. 86 CfJS has adopted an openly critical pedagogy approach, aimed to challenge practices and discourses, in education but particularly in the wider social, economic and political sphere, that reproduce inequalities and social injustice.87 Within criminal justice, the approach problematizes the concepts of crime and deviance, highlighting their historically and socially contingent nature, the role of the state and its agencies, and brings voice to those at the receiving end of their practices.88 CfJS encourages the students, and staff, to listen. For the students, CfJS has clearly been an enriching experience in terms of knowledge, understanding and skills gained. It has been gratifying to witness the growing appreciation of sustainability, changing attitudes and behaviours, and the increasing enthusiasm through class interactions and reflective blogs. But such learning and development are not confined to the students. For us, the module has been a highly challenging and highly rewarding experience both professionally and personally. As educators, it has been wonderful to work with such an engaged group of students, to witness such transformation in them, and to have an opportunity to critically reflect on our own practice through the challenges an atypical module such as this brings. As academics it has been gratifying to challenge and stretch our own knowledge and understanding when it comes to the various dimensions of sustainability and justice, and to increase professional networks in this area. Moving forward, we hope that through this module we can encourage other academics to reflect on where ESD may fit for them and to recognise its interdisciplinarity. On a personal note, we have experienced the module as immensely enjoyable and downright fun, and when you can say that about your work, you are onto a winner! “Education will need to prioritize the development of those dynamic capacities – cognitive, interpersonal and motivational – associated with the ability to continuously shape and reshape one’s own existence”89 84 S. Scoffham and N. Kemp “It’s Contagious! Developing sustainability perspectives in academic life at a UK university” in W. L. Filho, U. M. Azeiteiro, S. Caeiro & F. Alves (eds) Integrating Sustainability Thinking in Science and Engineering Curricula: Innovative Approaches, Methods and Tools (London, Springer, 2015) 85 supra n. 76 86 Ibid. 87 P. Freire, Pedagogy of the oppressed (London, Continuum, 1996). 88 supra n. 4 89 J. Eliot “The Curriculum Experiment: Meeting the Challenge of Social Change” in W. Scott and S. Gough (eds) Key Issues in Sustainable Development and Learning: A Critical Review (London, Routledge Falmer, 2004) For all of us involved in CfJS the experience has done just that, transforming our understanding of and relationship with each other and the world that we live and learn in. We are happy that Samantha’s wish… “I think this is a module that should continue at CCCU and hope other students benefit from the module as much as I have.” …is granted and the module continues to run. 
work_27a4tagqjzb5tojpe7qq4fpjou	----	Tilburg University Weighting justice Gramatikov, M.A.; Laxminarayan, M.S. Publication date: 2008 Document Version Early version, also known as pre-print Link to publication Citation for published version (APA): Gramatikov, M. A., & Laxminarayan, M. S. (2008). Weighting justice: Constructing an index of access to justice. (TISCO Working Paper Series; Vol. 010/2008). Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344418 General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. apr. 2021 https://research.tilburguniversity.edu/en/publications/57e87b44-dbcc-4774-af14-dc749d49213e http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344418 1 TISCO WORKING PAPER SERIES ON CIVIL LAW AND CONFLICT RESOLUTION SYSTEMS Weighting Justice: Constructing an Index of Access to Justice Martin Gramatikov Tilburg University Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO, Hague Institute for the Internationalisation of Law (HIIL) m.a.gramatikov@uvt.nl & Malini Laxminarayan Tilburg University Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO), Hague Institute for the Internationalisation of Law (HIIL) M.S.Laxminarayan@uvt.nl TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 10/2008 Month December 2008, Version: 1.0 & Tilburg University Legal Studies Working Paper No. 18/2008 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection 2 I. Legal indexes ............................................................................................................. 3 II. Measuring access to justice ....................................................................................... 5 A. Usefulness of the index.......................................................................................... 6 B. Access to justice indicators .................................................................................... 8 III. Weighting the index items ........................................................................................ 11 A. Sample weights.................................................................................................... 11 B. Item weights ......................................................................................................... 12 1. Stated preferences weights ................................................................................. 13 2. Extracted association weights.............................................................................. 13 3. Advantages and disadvantages of weighting the items ....................................... 14 IV. Three examples of weighting items ..................................................................... 15 A. Stated preferences weights ................................................................................. 15 B. Association weights extracted with factor analysis .............................................. 16 C. Association weights extracted with multiple regression ....................................... 17 D. Using un- weighted data ...................................................................................... 19 V. Application of weights .......................................................................................... 19 VI. Index validation .................................................................................................... 22 VII. Conclusion ........................................................................................................... 23 Appendix A: Methodology for data collection ................................................................... 25 Appendix B: Computation of weights ............................................................................... 27 Abstract The methods and procedures for measuring the performance of a legal system are debatable issues. Legal indexes, although not common, do exist as a means for measurement and evaluation of various legal phenomena. This paper outlines one method using the Access to Justice Index, which is a procedure for aggregating the relevant data on the costs, the quality of the procedure and the quality of the outcome of a given legal path. This data is a result of the various justice theories that measure experiences of the user when attempting to solve a dispute. The paper investigates in detail the need for and applicability of weights in order to adjust the observed data. After assessing the possible methods of extracting and applying weights, we conclude that factor analysis is in fact the most practical and reliable technique. The option of non-weighting is also briefly considered, and sheds light on the possibility for leaving the data in its original form. The paper concludes with a discussion on the validation of the index and a case study of consumer disputes in the Netherlands to illustrate its performance. 3 “If you cannot measure it, you cannot improve it” Lord Kelvin I. Legal indexes Different factors fuel the growing need for the measurement of legal phenomena. Globalization and worldwide competition, universal character of human rights, ‘judicial borrowing’, and donors’ investments in legal reforms are only a few of these factors. How to measure the performance of a legal system is a contentious issue. Looking at the inputs of the system could provide some knowledge on the general legal infrastructure, but the input-based approach could, at best, provide an approximation for the performance levels. The outcomes of the legal system are a more valid representation of its ability to solve problems, provide legal certainty and reinforce the social order. Again, the question remains what set of indicators better gauges the outcomes of a legal system. A popular approach to assess the outcome is to concentrate on the Rule of Law (RoL) paradigm. The RoL, however, is a complex and unobservable part of the social world. Its existence and strength could be judged only after an assessment of numerous indicators, including independence of the judiciary, equal and consistent application of the law to similar cases, and accountability of the government. Accessibility of the national justice systems or accessibility of a single dispute resolution procedure is a particularly powerful indicator of the fairness, effectiveness, and inclusiveness of the legal systems. Access to justice, however, is also a complex phenomenon consisting of different aspects and meanings. These phenomena could vary across time, jurisdiction, social class or legal culture. One plausible strategy to measure such a rich and diverse domain is to use a set of standard indicators. Each individual indicator would measure separate parts of the general concept. In order to cast light on the whole, rather than on parts, the indicators should be combined into an index. Every index has two general purposes – integration and parsimony1. Integration requires the sum of the parts to provide more knowledge than individual parts. For instance, the World Bank’s Worldwide Governance Indicators (WGI) combines a vast amount of individual indicators together to assess the level of governance in the national states2. In real life, however, governance is only a vague concept which cannot be observed and measured directly. The theory of the indicators states that it is an observable phenomenon, which could be assessed by looking at observable sub- indicators or markers. The WGI distinguish six dimensions of the governance, one of which is the RoL. It is a complex and unobservable phenomenon defined as “....the extent to which agents have confidence in and abide by the rules of society, and in 1 ELIZABETHANN O'SULLIVAN & GARY R. RASSEL, Research Methods for Public Administrators (Longman Third Edition ed. 1999); LEA BISHOP SHAVER, Defining and Measuring A2K: A Blueprint for an Index of Access to Knowledge, 4 I/S: A Journal of Law and Policy for the Information Society 235, (2008). 2 DANIEL KAUFMANN, et al., Governance Matters VII: Aggregate and Individual Governance Indicators, 1996-2007 available at http://ssrn.com/paper=1148386. 4 particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence”3. Apparently, the enforcement of contracts and the likelihood of crime measure different things on different scales. However, the WGI team believes that these are aspects of the higher-level RoL concept, and, thus, treats their scores as parts of the composite index. Therefore, the purpose of the index is to integrate the different parts of the whole into a single value. Dealing with one representation of the idea of RoL instead of with its dimensions provides parsimony – clarity and a simplified explanation of the observations. Similarly, Freedom House collects data and computes its Freedom in the World Index4. RoL is considered an important dimension in the broader idea of freedom. As in the WGI, the Rule of Law is treated as a complex phenomenon which can only be observed through proxy indicators. Independency of the judiciary, civic control over police, the extent of legal protection against external intrusions, and fairness of the law are the four ingredients of the RoL, according to the theoretical framework of Freedom House. Each of these ingredients is put into operation through a set of items in which data is collected. In order to integrate the fragments of the RoL concept, researchers combine the items into higher-order dimensions. The dimensions are then aggregated into a composite index which provides information on the level of the RoL in a particular country. Several other global or regional indexes measuring legal constructs are related to access to justice5. The Heritage Foundation measures economic freedom. One of the components of this index is the property rights defined as an “an assessment of the ability of individuals to accumulate private property, secured by clear laws that are fully enforced by the state”6 . The American Bar Association World Justice Project develop and test an index, which aims to measure the countries’ adherence to the RoL7. Four broad factors (called bands) are contemplated as proxies of the index, with the third band closely connected to the accessibility of the justice system. Its content is described as “...the accessibility, fairness and efficiency of the process by which the laws are enacted, administered and enforced”8. In this paper, we discuss the substance and the procedure for computation of the Access to Justice Index. Both aspects are of critical importance for the usefulness of the index. A rigorously computed index of data which does not properly represent the measured idea may end up being a worthless use of time and resources. The opposite is also true – even if the data validly measure components of access to justice, a 3 Id. at 7. 4 FREEDOM HOUSE, Freedom in the World 2007: The Annual Survey of Political Rights and Civil Liberties (Rowman & Littlefield Publishers. 2007). 5 See more on global and regional indexes that measure legal phenomena can be found in CHRISTIANE ARNDT & CHARLES OMAN, Uses and abuses of governance indicators (Development Centre of the Organisation for Economic Co-operation and Development. 2006). 6 KIM R. HOLMES, et al., 2008 Index of Economic Freedom 41 (The Heritage Foundation 2008). 7 See http://www.abanet.org/wjp/ 8 THE WORLD JUSTICE PROJECT, Rule of Law Principles and World Justice Project Overview. (2008), at http://www.abanet.org/wjp/docs/abawjpresourcekit.pdf. 5 flawed index construction will cast doubts on the outcome. In order to mitigate these challenges, we will first review the substantial part of the index. All three indicators will briefly be introduced and explained. Then, alternative options for the aggregation of these parts into one composite index will be investigated. The options will be tested on a data set from a survey of the path to justice in the Netherlands. In chapter 1, the concept of an index and the content and formulation of some of the most popular legal indexes were discussed. The remainder of the paper proceeds as follows: The second part of the paper examines the decisions that have to be made in order to aggregate the pieces of data into one index. Special emphasis is given to the issue of weighing the data. In addition, three alternative strategies to derive weights for the quality of the procedure and the quality of outcome will be discussed. The options will then be applied to the observed data in order to study the impact of the weights. Finally, we discuss a strategy for assessing the validity of the composite index. II. Measuring access to justice In the last decades, a growing number of studies have applied theories and methods from humanities, social sciences and economics to understand different legal phenomena. Access to justice is one of the legal domains that gathered significant inter-disciplinary attention. Increasingly, the accessibility of the legal systems, and in particular the dispute resolution systems, are measured through quantitative methods. Since the 1970s, researchers employed empirical strategies to estimate the legal needs that exist in society9. In these early studies, legal needs were expected to fall under the category of professional legal advice. Although from different viewpoints, access to justice is quantitatively examined in studies measuring the costs and delay of litigation procedures10. Access to justice has been measured in varying ways, often dependant on the discipline carrying out the research. Psychologists focus on the procedural and distributive justice needs of users11, while economists are more interested in the costs associated with a given procedure. Victimologists are concerned with the negative repercussions crime victims suffer while gaining access to justice12. For economists, social scientists and lawyers alike, there is a desire to link access to justice to those 9 AMERICAN BAR ASSOCIATION, Comprehensive Legal Needs Study. (1994); BARBARA A. CURRAN, The Legal Needs of the Public: The Final Report of A National Survey (American Bar Foundation. 1977). 10 HERBERT M. KRITZER, et al., Understanding the Costs of Litigation: The Case of the Hourly Fee Lawyer, Summer 1984 American Bar Foundation Research Journal 559, (1984); DAVID M. TRUBEK, et al., The Costs of Ordinary Litigation, 31 UCLA L. Rev. 72, (1983); EDGAR LIND, et al., The Perception of Justice. Tort Litigants' Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (1989). 11 S. ALEXANDER & M. RUDERMAN, The role of procedural and distributive justice in organizational behavior, 1 Social Justice Research, (1987); LAURA KLAMING & IVO GIESEN, Access to Justice: The Quality of the Procedure available at http://ssrn.com/paper=1091105; JOHN THIBAUT & LAURENS WALKER, Procedural justice: A psychological analysis (Erlbaum. 1975). 12 ULI ORTH, Secondary Victimization of Crime Victims by Criminal Proceedings, 15 Social Justice Research, (2002); JOANNA SHAPLAND, et al., Victims in the criminal justice system (Gower. 1985). 6 suffering from social inequality. Other topics of interest include informal justice methods, access to legal aid and public interest law13. In the 1990s, research on access to justice shifted towards the direction of broader inquiry on the sociological aspects of access to justice. In an influential study, Professor Hazel Genn surveyed the response strategies to non-trivial problems that might have a resolution with legal means14. The so-called “justiciable events methodology” gained popularity and has been replicated over time and jurisdictions15. Its power is based on a comprehensive assessment of the impact that legal problems have in everyday life. What the “justiciable” research methodology still cannot deliver, however, is a comparison of the results across jurisdictions. Although the inferences are based on perception-based data, the various research projects split into different categories, including types of problems, period of interest and data collection method. A different approach to the quantitative assessment of access to justice is proposed by the “Measuring Access to Justice” (MA2J) project16. The project develops a research methodology which measures access to justice through the perceptions and attitudes of people who have travelled a path to justice. As compared with the justiciable events studies, the MA2J diverges significantly – its units of measurement are individuals who had a legal problem and acted to solve it with the means of state or non-state intervention. In fact, three major aspects of the experiences of the users are measured – the costs of justice17, the quality of the procedure18 and the quality of the outcome19. Each of these three pillars of the user’s experiences is modelled as a multi- faceted indicator consisting of sub-indicators. The individual scores of the sub- indicators form the scores of the three higher level indicators. At the next level, the project intends to aggregate the information on costs, quality of the procedure and quality of the outcome into one composite figure. This single value, the Access to Justice Index, should provide focused information about the measured paths to justice. A. Usefulness of the index First, we should clearly state the reasons for the index and its usefulness in examining procedures individually and in comparison to another. Individual evaluation may offer 13 MAURITS BARENDRECHT, et al., How to Measure the Price and Quality of Access to Justice? available at http://ssrn.com/paper=949209. 14 HAZEL GENN, Paths to Justice. What people do and think about going to law? (Hart Publishing. 1999). 15 AB CURRIE, The Legal Problems of Everyday Life (2007);HAZEL GENN & ALAN PATERSON, Paths to Justice Scotland. What People in Scotland Do and Think About Going to Law (Hart Publishing. 2001);PASCOE PLEASENCE, et al., Causes of Action: Civil Law and Social Justice (Stationery Office. 2004);MARTIN GRAMATIKOV, Multiple Justiciable Events in Bulgaria (Legal Services Research Centre ed., 2008);BEN C. J. VAN VELTHOVEN & MARIJKE TER VOERT, Paths to Justice in the Netherlands. Looking for signs of social exclusion. 28 (2004). 16 BARENDRECHT, et al., supra note 13; MARTIN GRAMATIKOV, et al., Measuring the Costs and Quality of Paths to Justice: Contours of a Methodology (SSRN 2008). 17 MARTIN GRAMATIKOV, A Framework for Measuring the Costs of Access to Justice, 2 J. Juris. 111, (2009). 18 KLAMING & GIESEN, supra note 11. 19 JIN HO VERDONSCHOT, et al., Measuring Access to Justice: The Quality of Outcomes available at http://ssrn.com/paper=1298917. 7 less information than comparative values, but insights can still arise concerning the need for improvement. Furthermore, the aim of the index is – once data has been collected and analyzed – to compile rankings of procedures in a relatable manner. Understanding what is relatable or comparable (between jurisdictions or between procedures) will be elaborated on below. Using these evaluations and comparisons can lead to policy implications; the index can serve as a learning tool among jurisdictions. Evaluation The idea behind indexes is simple: to summarize several indicators into one numerical score. One objective of the index is for the evaluation of a given procedure. If a neutral is concerned with user perceptions of his or her procedure, the index can provide numerous insights into the various components of the process. Furthermore, if a user is curious about a given procedure, and has access to this information, he or she may obtain a better understanding of what lies ahead. Although costs may be higher in one case, a more favourable outcome may outweigh this shortcoming. Each component can be compared with the use of the sub-indexes. In addition, this evaluation can be used for comparisons and policy evaluations, as we will discuss. Comparison Both comparisons among countries or paths and comparisons over time can offer various policy implications. Comparison over time can illustrate whether or not there have been improvements in certain procedures. For example, in the field of victimology, legal provisions have recently taken place and will continue to do so at both national and supranational levels. The effects of these changes can be measured by victim satisfaction and their perceptions of the quality of the experiences, and, consequently, the rankings conferred to various procedures. Legislation reform can be established in one jurisdiction; actual implementation, however, may paint a much different picture. This notion can be illustrated by one example in the Dutch criminal justice system. In the past decade, various guidelines (as stated by the 1995 Terwee Act)20 have been established which improve information (informational justice items), participation (procedural justice items), and treatment of victims21 (interpersonal justice items). In this instance, not having only one composite index, but instead several sub-indexes for each type of justice, will prove to be an advantage. Furthermore, longitudinal studies using these indexes would provide for valuable insights into the policies which have been established. More attention can be devoted to those areas which may be lacking acceptable values. Understandably, the index will not be valuable unless legal problems are either similar between different paths in the same country or similar legal problems between countries follow the same paths. For example, labour issues in the Netherlands will not be compared to consumer disputes in Belgium. Rather, the aim is to extract weights (discussed in detail in the latter part 20 Wet Terwee, Victim Act Terwee, Gazette 1995, no. 65., incorporated in the Dutch Code of Criminal Procedure of 15 January 1921, Stb. 14, amended 6 December 1995, Stb. 592 21 MARION ELEONORA INGEBORG BRIENEN & ERNESTINE HENRIËTTE HOEGEN, Victims of crime in 22 European criminal justice systems : the implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure : proefschrift (Wolf Legal Productions (WLP)/Vidya in cooperation with the Global Law Association. 2000). 8 of this paper) for each path to justice, and, consequently, draw conclusions from those paths which are in fact comparable. Comparable data has further implications for policy changes, suggesting that countries have the ability to look to each other’s legal systems and procedures for administering justice. B. Access to justice indicators Our theory of the Access to Justice Index is based on the belief that the users’ perspective is appropriate ground for assessing the extent of accessibility. A focus on the experiences of the users of justice means that the units of analysis are particular paths to justice. All conclusions and inferences will be applicable to the measured path to justice. Our definition of a path to justice is “a commonly applied process which users of justice address in order to cope with their justice needs”22. Both formal and informal processes could be positioned under the broad scope of the definition of a path to justice. A path begins when the user first addresses the process. This first active and deliberative involvement of the user into the process could be explicated through different acts – searching for information, acceptance of advice, filing documents, etc. The path ends when the user receives an outcome from the process. An outcome could be a final decision by a mediator, a joint agreement of the parties, or an end to the process because one of the parties quits. The experiences of the users of justice are measured against three indicators: the costs of the procedure, the quality of the procedure, and the quality of the outcome. Each indicator is built by a complex structure of sub-indicators. For instance, the costs of the procedure are defined as the resources, which the user would need to travel from the beginning to the end of a path to justice. Within this indicator, a set of sub- indicators reflect different types of procedural costs: out-of-pocket expenses, time, and other opportunity and intangible costs (stress, emotions, etc.). Similarly, the two quality indicators consist of lower level sub-indicators that measure its specific facets. 22 MARTIN GRAMATIKOV, Methodological Challenges in Measuring Cost and Quality of Access to Justice available at http://ssrn.com/paper=1099392. 9 Figure 1: Access to Justice Index Figure 1 outlines the components of the Access to Justice Index. In the table below we outline the sub-indicators of access to justice in more detail. An elaboration of these concepts can be found in relevant papers23. Important to note, however, is that not all indicators are universal across users. To give an example, while indicators of utilitarianism may be applicable to users of the criminal justice system, the same may not hold true for other legal problems. Table 1: Indicators of the Costs and Quality of Paths to Justice Costs of the Procedure Indicator Description Examples Out-of-pocket expenses The monetary amount spent on transactions during and as a result of the proceedings Lawyer fees, expert fees, filing fees, transportation fees, bailiff and witness fees, notary fees, costs for communication Time Time spent dealing with the procedure Searching for a legal advisor, collecting information, contacting professionals, travelling, awaiting/attending hearings, waiting in queues Other lost opportunities The cost of lost opportunities due to the proceedings and their possible lengthiness Lost income, devaluated resources, losing a job opportunity Intangible costs On their paths to justice, people tend to expend emotions, suffer stress, Stress, negative emotions such as frustration, fear, disappointment or anger, loss of relationships 23 KLAMING & GIESEN, supra note 11; GRAMATIKOV, supra note 17; VERDONSCHOT, et al., supra note 19; MALINI LAXMINARAYAN, Measuring Crime Victim’s Paths to Justice: Developing Indicators for Costs and Quality of Access to Justice (Tilburg University 2008). 10 become depressed or experience deterioration in their relationships with significant others Quality of the procedure Indicator Description Sub-indicators Procedural Justice Fairness perceptions of users regarding the processes that are utilized to resolve disputes and allocate resources Process control, decision control, consistency, bias suppression, accuracy, ability to correct, ethicality Restorative Justice Concerned with the harm that has been caused by the legal problem and attempts to offer reparation to the user of justice Opportunity to ask the other party for an explanation and recognition Interpersonal Justice The extent to which people are treated with politeness, respect, and propriety Politeness, respect, propriety, respect for rights Informational Justice The validity of information provided by decision makers as the foundation of the decision making process Honesty, explanation of rights and options, as well as whether the explanation was timely, understandable, and in need of clarification Quality of the Outcome Indicator Description Sub-Indicators Distributive Justice The allocation of resources among individuals with competing needs or claims Equity, equality, need Corrective (compensatory) Justice When one person is wrongfully injured by another, the injurer must make the harmed party whole Compensation Restorative Justice Looks to the future and the best means to achieve reparation of harm, including elements of apology, shame and repair of relationships Opportunity given to the offender to show remorse and to accept responsibility, the degree of reparation of emotional and monetary harms, closure, alleviation of fear Retributive Justice An infliction of proportionate loss and pain to the injurer is necessary to achieve justice Just deserts Utilitarianism Social harmony can be attained via the prevention of future harm Deterrence and incapacitation Informational Justice The validity of information provided by decision makers Outcome justification 11 as the foundation of the decision making process Transformative Justice The future is a main concern, in addition to transformations with the self, self-in-relationships, and self-in-society Considering parties’ interests and re-building relationships Legal pragmatism Concerned with facts and consequences Pragmatic outcome, consequences taken into account Formal Justice Similar cases are defined by the situation, not the person – i.e., treat similar cases alike Similar outcomes and ability to compare outcomes with related others III. Weighting the index items One way to compute the Access to Justice Index is to aggregate the values of all items, thus measuring a higher-order concept. The outcome means will reflect the score of the unobservable variables. At the next level, the same computation could be performed in order to discover the scores of the three basic indicators (costs, quality of the procedure, and quality of the outcome). In a third round of aggregation, the composite index of the accessibility of the measured path to justice could be estimated through the mean of the three main indicators. Such a routine uses the non-weighted original values of the items. It assumes that the data reliably measures the indicators allowing the studied sample to formulate reliable inferences. Alternatively, the two assumptions discussed above may be relaxed. They could either be uncertain that the instrument items measure the concepts of interest well, or the sample deviates systemically from the population. In both cases, weights could be used for adjusting the original values. In essence, the weighting is a procedure of assigning different degrees of importance to the original data depending on additional information. In this chapter, we review the possible alternatives for deriving and applying weights to the items and indicators of the Access to Justice Index. A. Sample weights The weights could reflect three distinct aspects of the reliability of the index components. Most often, weights are used to adjust the sample toward some known characteristics of the population of interest. In order to adjust the sample data, underrepresented groups are weighted more heavily in order to influence the data in proportion to their participation in the population. The focus of this paper, however, is on item weights and how this procedure can be achieved. 12 B. Item weights Weighting items is more challenging, as it attempts to collectively measure an unobservable indicator. In the case of the sample adjustment, the weights are applied to decrease the differences between the sample and the population from which it has been drawn. Weights could also be applied to the items of the research instrument. The logic of this type of weighting lies in the unknown importance of the items. Our theoretical framework determines what items are likely to measure an indicator, but it does not indicate how well each item performs. When we measure the costs and quality of a path to justice, we hypothesize that the users use the criteria set out in Figure 1. However, we do not know whether the distributive justice impacts the perception of the procedure quality more than the informational justice. It is an empirical question to ascertain the magnitude of importance of these criteria. The assumption that items and indicators could vary in their importance calls for an estimation of the parameters of such importance. But what exactly does importance of an item for measuring justice indicators mean? Two principally different answers could be given to this question. First, subjective importance implies that the particular users of justice have a preference scale on which they estimate the relationships between items. Thus, parties in two different types of legal processes may have different preferences for the criteria used to measure the quality of the outcome. For instance, depending on circumstances and personal preferences, the user could place greater value on the distributive or informational aspects of the outcome. These weights are further referred to as stated preferences weights. A second method to answering the estimation question takes a radically different approach. Instead of searching for the answer in the users’ preference scales, it assumes a more theoretical stance. After the important indicators are into items, this second approach attempts to discover how well the items measure the unobservable indicator. In a sense, it disregards the personal preferences, instead relying on the validity of the measurement tool. For brevity, the weights that reflect the connection with the unobservable indicator will be called extracted association weights. Both approaches for justifications of item weights will be discussed below. Their advantages and disadvantages could be studied on two levels. One is the conceptual level, where it must be decided which approach is more coherent with the research questions that the Access to Justice Index must answer. The two weighting paradigms reflect different technique of uncovering the importance of the items. One method is based on personal choice; the other is grounded in the ability of the item to measure the latent construct. Apart from the theoretical differences, the rationale of the two approaches must also be assessed from an empirical perspective. Item weights are not easy to operationalize, measure, and interpret. Often, estimation of item weights requires complicated research designs and procedures. The reliability of the outcomes of the weight extraction is of major concern, and thus should be factored into the discussion of the advantages and disadvantages of the stated preferences weights and the extracted association weights. 13 1. Stated preferences weights Weights based on the stated preferences regarding the relative importance of an item assume that users place different levels of importance on individual items. For instance, the restorative effect of the outcome could be more significant than its distributive consequences. Or, at another level, the quality of the procedure could be more important than the quality of the outcome. It is possible that the importance function is dependent on the personal characteristics of the respondent. However, it could also be that preferences are influenced by belonging to social groups, types of problems, or types of procedures. People from different social groups could systematically place dissimilar preferences on individual indicators. Economic position, education or political views could interact with the preferences on the items that measure costs and quality of paths to justice. It is a plausible hypothesis that for those with more resources, the quality of the procedure matters more than that of the outcome. Alternatively, the less fortunate will value the outcome more because of the higher marginal utility. These hypotheses, however, could prove useless because of the many possible interactions between individual characteristics and perceptions on the justice. For instance, people with more resources normally tend to have a better education and know more about their rights. As such, they could place even stronger emphasis on the quality of the outcome. The importance of the items may also be impacted by the type of process used. State organized paths to justice are more formal, causing users to focus more on the need to receive attention and empathy from the neutral. More legal formalism increases duration and costs of dispute resolution, which could mean that costs will be of utmost importance. On non-state paths, such as negotiations or mediation, the quality of the outcome could be perceived by users as being more important. 2. Extracted association weights Many of the indicators for measuring access to justice cannot be observed directly and have to be measured through proxy indicators. While each of the proxy variables captures part of the unobservable variable of interest, they may also reflect other facts and perceptions. Some of the items will measure a larger share of the indicator and, therefore, will be better associated with it. The weight of the items could also be based on their abilities to measure the indicator. For instance, we measure interpersonal justice with four items, and it is highly unlikely that these four items contain an equal amount of information on the unobserved factor. If the quality of the procedure is believed to consist of three components (procedural justice, interpersonal justice, and informational justice), it would be very bold to assume that they participate equally in it. It is entirely possible that one of the items24 is better associated with the quality of the outcome. Weights, based on the association of the item with the unobservable indicators, should assign more importance on this item and less importance on the others. 24 These are already aggregated items. 14 Using extracted association weights, the researcher has more influence on the weighting process. The items’ weights depend on the relationship (association) of the item and the unobservable indicator. In order to discover the strength and the direction of the association, the index constructor has to extract the weights. As we saw above, in the stated preferences weights, it is the user of justice (the respondent) who directly determines the weights. 3. Advantages and disadvantages of weighting the items Preference of one of the options for extraction of weights should be guided by theoretical and practical considerations. It is likely that both weights are applied to different parts of a measurement tool. For instance, in the Access to Justice Index, both weighting schemes could be used to increase the reliability of the composite index. Below is an example of a theoretically driven choice of weights. The theory is grounded in the characteristics and linkages of the index indicators described above. At the bottom level of the index (Figure 1), where the unobservable criteria are measured by proxy variables, the use of extracted association weights will be more feasible. All proxy-variables are supposed to measure a relatively compact indicator, and it would be difficult for the users of justice to clearly differentiate which item is more important in relation to the others. Application of the extracted association weights relieves the users from the burden of making a difficult choice, and indicates which item is better associated with the unobservable indicator. Thus, the adjustment of the significance of items according to their ability to measure the indicator has sound theoretical fundaments. An example follows: In the quality of the procedure dimension, the index has four complex indicators. Another eight indicators measure the quality of the outcome (Figure 1). Again, a decision must be made on which weighting scheme to use at this second level of aggregation. The application of extracted association weights is an option, but there is one serious concern. Each of the items is a product of the lower level items. If one wants to find out how the four items measure the quality of the procedure, she must consider the fact that these items inhibit more measurement error due to the aggregation process. Alternatively, the stated preference weights could be used to improve the reliability at the second level of the index. This means that users should indicate the importance of each of the aggregated items against each other. An item in which the respondents are asked to rate its importance could provide a meaningful preference weight. The disadvantage of this approach is the need for clear operationalization of the aggregated items. Asking respondents about procedural justice, restorative justice, or other highly abstract terms will likely impact the validity of the instrument. Therefore, the use of importance weights could be recommended only when the indicators of interest can be sufficiently explained in a language that will be understood clearly by the respondents. As stated above, the choice of weights for index items should also be guided by practical considerations. Computing the weights of items requires additional resources in terms of increased samples and larger questionnaires. The stated preferences 15 weights seem to be significantly more challenging. Either the respondents have to reveal their preferences together with the items, or the preferences should be obtained from a different source. While the former approach is appealing, it could undermine the reliability of the measurement. A research instrument which asks for the importance of each item will double its size, inevitably leading to lower response rates and other negative effects. Even more challenging is the extraction of weights from different sources. Later, we discuss the pros and cons of estimating weights in one sample and applying them to the item scores of another. An interesting related question is whether universal weights could exist for paths to justice. A theory of universal weights must build on the assumption that users of particular paths to justice have stable preferences on the evaluation criteria. Apparently, this assumption should be limited at different levels, such as type of problem, characteristics of the parties, specifics of the particular jurisdiction, the related legal culture, etc. Unlike the stated preferences weights, the extracted association weights are less demanding in terms of research resources. Normally, the observed data could be easily analyzed with statistical techniques, such as factor analysis or multivariate regression. Below, we give three examples for extraction and application of weights. IV. Three examples of weighting items A. Stated preferences weights In a quasi-experiment, we obtained the stated preferences of users of justice on the importance of the quality of the procedure and the quality of the outcome indicators25. A direct result of the measurement is that it provides a hierarchical order, which reflects the subjective importance of the individual items. An item which is ranked as the most significant (e.g. voice) within a group of items (e.g. procedural justice) is deemed as more important than the other items from the same group. Therefore, the rankings can produce meaningful weights, which can be applied to the observed data. Items could also be equally important (e.g. voice and bias suppression). The ultimate outcome from the weighting is that items that were deemed as more important by users will receive higher importance in the composite index of the costs and the quality of access to justice. 1. Challenges There are several serious disadvantages in the use of stated preferences to weight items of the quality of the procedure and the quality of the outcome indicators26. Like the item scores, the ranking of the items have to be estimated empirically. One option is to calculate the items and their relative importance from the same sample of users of justice, meaning that the same questionnaire will collect two types of data. 25 For details on the research design and the methodology of data collection see Appendix 1 26 See supra III.B.3 16 Alternatively, the item scores could be estimated from one sample of users, while the importance is estimated from a different sample. Deriving stated preferences from the same or different sample inevitably increases the cost of the indexing construction. Furthermore, in the latter option, there is the risk of the two populations differing in some known or unknown manner. The comparability of the paths to justice could also be an issue. Another challenge may be the moment that stated preferences are a valid and reliable reflection of what users of justice find important, as this could change with time. Change in legislation or external factors might influence the perceptions regarding the relative importance of the items of the quality of the procedure and the quality of the outcome indicators. B. Association weights extracted with factor analysis In this section, we focus on the parsimony function of factor analysis and its ability to produce meaningful weights of the items that measure the quality of the procedure and the quality of outcome of paths to justice. Factor analysis (FA) is a statistical procedure for data reduction and identification of latent factors in the data. Thompson adds two additional intentions of the FA – evaluation of score validity and development of theory regarding the construct27. There are numerous methods for factor extraction which attempt to achieve the goals of FA from different perspectives. For the purpose of this example, we will use the method of principal component analysis (PCA). The advantage of PCA is its ability to analyze the total variance in the correlation matrix to reduce the data structure. Unlike the alternative methods for extraction of common factors, PCA operates with components extracted from the correlation matrix, and not with hypothetical factors28. Another advantage of PCA is that it extracts components from the total variance, whereas the other methods use only the common variance between items. Unlike most of the parametric statistical procedures, FA does not assume normal distribution of the data. Two assumptions underlie FA. First, it is applicable to continuous variables. Most items in the MA2J measurement instrument use a 5 point Likert scale or are re-scaled to a 5 point scale29, meaning we can apply FA. Second, the variables must be linearly related to each other. This assumption could be checked through investigation of the co-relation matrix or review of the scatter matrix. The primary goal of PCA is to reduce a set of correlated items into a few components which are more amenable to interpretation. In the context of the MA2J methodology, the components are expected to be indicators and sub-indicators of the costs and quality of the paths to justice, and the items are the individual questions from the measurement instruments. For instance, PCA could indicate whether the five variables designed to measure the procedural justice primarily measure this factor, or if the data captures other facets of the experience with the procedure. After estimating the number of components, PCA reveals the association between each variable and the extracted component. These correlations could be interpreted as the fit between an 27 BRUCE THOMPSON, Exploratory and confirmatory factor analysis : understanding concepts and applications pp. 4-5 (American Psychological Association 1st ed. 2004). 28 PAUL KLINE, An easy guide to factor analysis (Routledge. 1994). 29 The costs are measured at ordinal level and then re-scaled again to ordinal variables. 17 item and a component. Items with high correlations are deemed to be good measures of the component. On the other hand, items with low correlations measure some other factors, which are not shared with the other items. The measure of the association between the individual items and the measured indicators could be used as weights when interpreting the results from the MA2J studies. Items better related to the particular indicator will be given more weight in the index variable. Later, we discuss the capability of PCA to provide meaningful weights for the MA2J data. In FA, the measure of extracted communalities is directly related to the factor loadings. The communality of a variable reflects the amount of variance, explained by the extracted factors. If there is only one factor identified in the data structure, the communalities express the variance explained by this single factor. There is a direct relationship between the factor loadings and the communalities - the latter are the sum of the squares of the factor loadings. The application of the communalities or the factor loadings as weights will reward the variables, which are closely associated with the indicator. A practical question is which measure to use as weight for the observed variables – the communalities or the factor loadings. As the former are a product of the latter, both weights will produce similar, but not equal, results. In order to avoid further complications of the interpretation of the weighted variables, we recommend the use of the factor loadings as weights for the observed data. 1. Challenges The factor loadings can be used as meaningful weights if there is only one factor extracted. There is the possibility that despite the careful alignment of the measurement instrument with the theoretical framework, the variables in fact measure two or more factors. In this case, the communalities will be the product of more than one factor loading. While this will contradict our theoretical framework, it will also challenge the use of the factor loadings as weights. If the data does not fit the theoretical model well, the validity of the measurement instrument has to be carefully scrutinized. Another practical challenge is the sample size. Although there is no fixed requirement for the size of the sample, there are certain suggestions. The general advice is that larger samples will allow for more valid and reliable weights extraction. C. Association weights extracted with multiple regression Multiple regression is the second statistical procedure that will be reviewed for the purpose of deriving association weights. Briefly stated, standard multiple regression allows for the assessment of the relationship between one continuous dependent variable and numerous independent variables. For example, is satisfaction with the criminal justice system related to several independent variables, such as respectful treatment, participation, being informed and/or sentence severity? Using multiple regression allows for the identification of a set of predictor variables that, when combined, will provide a useful estimate of the score of the participant’s criterion variable. It is possible to predict the score of the dependent variable based on 18 the scores of several variables. Multiple regression accounts for the variance in the observed scores. The regression equation is as follows: εββββ +++++= kk XXXy ...22110 Where Y is the predicted or explained value on the dependent variable, X represents the independent variables explaining the variance on Y, and B is the coefficient assigned to each independent variables. These coefficients are the weights attributed to each independent variable and are similar to the factor loadings in FA. Finally, A is the intercept30. To find out which variables in the model contribute to the prediction of the dependent variable and to what extent, the beta coefficient is used. Since this research is solely weighting the procedure and outcome – elements which do no need standardization as they are on the same scale – conversion is not necessary and the un-standardized coefficient can be utilized. Applied to the current research, the weighted equation for procedural justice would be as follows: Y(composite procedural) = A + b1 (process control) + b2 (decision control) + b3 (consistency) + b (bias suppression) + b (accuracy) + b (correctability) +b (ethicality) 1. Challenges An issue with multi collinearity arises if two or more independent variables are highly correlated with one another, and, therefore would basically be measuring the same phenomenon. This study will utilize the value .75 as a threshold for identifying multi collinearity. Different methods are available to ensure that this limitation does not exist. This analysis will follow the rule that regression with one independent variable requires 30 observations, and each additional independent variable added to the equation will require an additional 10 observations. If measuring procedural justice, which is calculated using 7 independent variables, a minimum of 90 observations would be necessary. As seen in Figure 2, there will be a largely skewed value for each variable if multiple regression is used. One possibility is to leave the non significant variables out of the equation. The existence of non-significant values is another issue suggesting multiple regression is an inferior method when compared to FA. Because of the distorted weighted values derived by multiple regression, FA may prove to be the superior method in extracting weights for this research. The other option is to assume that variables 1 and 2 are the primary predictor variables affecting the criterion variable of satisfaction with the procedure. As they are the only variables which are statistically significant, the rest may be eliminated. Multiple regression is furthermore an inferior method due to its need to meet the above mentioned assumptions – in addition to other statistical issues such as normality, linearity and independence of errors – which is often a difficult task. 30 BARBARA G. TABACHNICK & LINDA S. FIDELL, Using multivariate statistics (Allyn and Bacon 4th ed. 2001). 19 D. Using un- weighted data The possibility of using an un-weighted index should not be overlooked. Often, index systems rely on equal weighting. In this case, the means will simply be utilized in an equation as follows: Y(composite procedural) = (1)voice + (1)decision control + (1)consistency + (1)bias suppression + (1)accuracy + (1)correctability + (1)ethicality Comparing weighted and un-weighted indexes will often yield similar results. This outcome leaves one to question whether a weighted index will be necessary to measure the quality of a path to justice. Weighted and un-weighted scores will be highly correlated, as was the case in Likert’s classic study measuring attitudes which found a .99 correlation31. Additionally, Nunnally argues that it is difficult to defend any given method as superior to simply summing un-weighted ratings32. As discussed above, many legal indexes do not apply any weights to the observed data. Several issues emerge when weighting the observed data. The assumptions required when conducting statistical analyses were discussed above. As is the case of the stated preferences, which was described using the law student experiment, applying one type of weight to a given criteria cannot be generalized to all types of legal problems. Other methods, such as the multiple regression, produce difficult to interpret weights which cannot be applied without additional transformation. It is also possible that the data severely contradicts the theoretical model which could render the weights meaningless. Finally, there is inevitable discrepancy between the weights derived with statistical methods and the actual preferences among the population of users of specific path to justice. V. Application of weights In this section, we apply the extracted weights to the observed data and analyze the impact of the weights. A good weight is expected to draw the observed data closer to the real properties of the studied phenomena. When the units of measurement are perceptions about the quality of the procedures and the outcomes, it is difficult to find precise benchmarks to assess the performance of the weights. In order to study the performance of the three weighting schemes, we are going to compare the weighted data with the observed data. Following the discussion above, three types of weights were extracted from two data sets (see Table 2). According to our taxonomy, the factor analysis (FA) weights and the multiple regression (MR) weights are extracted association weights. The third weighting model (Stated Preferences – SP) is based on users’ stated preferences (see 31 RENSIS LIKERT, A method of constructing an attitude scale, in Scaling: A sourcebook for Behavioral Scientists, (G. Maranell ed., 1974). 32 JUM C. NUNNALLY, Psychometric theory (McGraw-Hill 2d ed. 1978). 20 Appendix A for details on the computation of the indexes). Both association weights were extracted from a sample of users of justice who attempted to solve a consumption dispute. Data from a quasi-experiment with law students was used to compute the stated preferences weights. Despite the fact that the weights were taken from different samples and different legal problems, there is a significant positive correlation between the FA and the SP33 weights. Positive correlation as high as .79, for example, suggests that the difference between the association and the importance weights lies mainly in the extraction method. The positive sign of the correlation indicates that the items which measure better higher-level concept are also rated as more important. Extended further, the finding can be translated into a hypothesis which states that the users’ perceptions about paths to justice reflect both the actual experiences and the importance of the indicators used. Although extracted from the same data set, the correlation between the FA and MR weights is lower than the association between the FA and SP weights34. Least correlated are the MR and the SP weights35. This is a surprising finding, given the high association between the FA and SP. Looking at the MR weights, it is apparent that the method produces somewhat difficult to interpret weights, which cannot be used without significant transformations (see Table 2: Weights). The discrepancy is a signal to critically scrutinize the potential of the multiple regression analysis, thus providing meaningful weights in the context of measuring access to justice. Table 2: Weights Indicator Association weights - FA Association weights -MR Stated preferences weights Decision control 0.81 0.37 0.86 Correctability 0.84 0.14 1.09 Bias Suppression 0.89 0.44 1.22 Process Control 0.76 0.04 0.99 Ethicality 0.77 0.05 0.85 Consistency 0.82 0.04 1.04 Accuracy 0.84 0.05 1.20 Figure 2 reveals the results from the application of the three different weights to the actual data. Visibly, the MR weighed data significantly deviate from the raw scores and the other two weighting options. The transformation is not only in the item scales, 33 r=.79 34 r=.60 35 r=.13 21 but also in the relationships between the items. More consistency is significantly observed between the observed data and data weighted with the FA and the SP methods. When analyzing the relative position of the seven items, we find a negative correlation36 between the observed data and the MR weighted data. Not only does the multiple regression method produce difficult to interpret results, but this method also significantly affects the ranks of the observed items. Figure 2: Weighted data 0 1 2 3 4 Ac cu ra cy Co rre cta bil ity Et hic ali ty Pr oc es s C on tro l De cis ion co nt ro l Co ns ist en cy Bi as S up pr es sio n Raw score FA MR SP On the other hand, the FA and the SP methods change the order of the items to a much lesser degree in the observed data. The SP weighted data has a somewhat higher level of correlation with the observed data37 than the FA method38 does. Both correlations have similar strengths, and it could be concluded that the two methods produce comparable results. Another argument for the hypothesis that the association and the importance weights measure the same phenomena but with different approaches is the high correlation between the ranks of the items weighted with the two schemes39. The result of comparison between three models for extraction of weights suggests that the FA procedure has the most potential for generation of informative weights. Both theoretical and practical arguments imply the suitability of FA. First, the weights extracted from FA have intuitive meaning without any transformation. They represent the relationship of the item to the higher-order concept. Therefore, the weighting denotes that the items which are better related to the unobservable indicator will receive higher weights. From a practical point of view, the FA weights also have certain advantages. The weights could be extracted from the existing data without the need to ask the same sample of respondents new questions or to compute the weights from a different sample. 36 r=-.58 37 r=.57 38 r=.43 39 r=.96 22 Another major advantage of the FA weighting model is that it could be applied at higher levels in the Access to Justice Index. For instance, after extraction of the weights of the individual items, FA could be used to discover the weights of the sub- indicators into the indicators. In the next step, FA could be used to explore the weights of the three indicators before they are aggregated into a composite index. Many of the advantages of the FA weights are inherent to the SP weights. Their most important benefit is the clear logic behind the stated preferences on the importance of the weights. An apparent disadvantage is the practical difficulties related to the collection of additional data that the method requires. As the analysis in the preceding paragraphs shows, after weighting with the FA and the SP weights, the data do not change dramatically. This could be an argument that the FA weights are a more efficient mean of weighting the observed data. Weighting observed data could improve the validity, but only if the weights indeed adjust the data in the right direction. However, when certain requirements regarding the weights are not met, a non-weighted index will be superior to a weighted index. First, proper data must be obtained via a sufficiently large sample size. Second, regarding FA, the data could reveal negative factor loadings, which would cause a problem when applying and interpreting the weights to the data. Issues may also arise when the data do not meet expectations. An example would be the discovery of a multi-factor construct when the theory or the expectations suggest only one factor. In either of these two situations, the data should remain non-weighted. When one or more of these concepts is lacking, it has been suggested to refrain from using weights, as Nunnally has asserted that this option is often the best choice40. VI. Index validation Once a composite index has been formulated to measure ‘access to justice,’ it is beneficial to validate the index, or, more specifically, focusing on external validation. External validation tests the validity of the index by examining the correlation of the final value and some other indicator of the variable under study. The current research uses the indicators discussed above to calculate the quality of the procedure (procedural justice, informational justice, interpersonal justice, and restorative justice) and the quality of the outcome (distributive justice, corrective justice, restorative justice, retributive justice, informational justice, utilitarianism, transformative justice, legal pragmatism, and formal justice). One can hypothesize that these indicators are measuring quality, or perceptions of satisfaction, with the procedure. As a result, the item that measures user satisfaction can serve as a presumed indicator measuring the same variable of quality of the procedure and quality of the outcome. This index validation presupposes that those users who score a given path with a high rating are likely to state that they are satisfied with the procedure. Therefore, when scores are equivalent for this item and the index score overall, conclusions can be made regarding the accuracy of the survey. Specifically, it measures what it is supposed to measure. To briefly illustrate index validation of the Access to Justice Index, we will take the sub-index score of the quality of the procedure in the data 40 NUNNALLY supra note 32. 23 from the consumer dispute commission study in the Netherlands, and examine its relation to the item measuring satisfaction with the procedure. Table 3: Correlations Of Satisfaction With Non-Weighted Scores And Weighted Scores Sub-indicator Weighted Score using FA Non-Weighted Score Procedural Justice .846** .844** Interpersonal Justice .669** .635** Informational Justice .645** .646** **. Correlation is significant at the .01 level (2-tailed). The data conclude that while the difference is marginal, the weighted scores more accurately depict a valid index, assuming that satisfaction serves as a reasonable proxy variable. The question that does arise is whether this data is more in support of the non-weighting option, as the differences seem insignificant (i.e. .846 vs. .844). More importantly, however, is the strong correlation between the weighted scores and satisfaction, therefore suggesting the index is a valid measure of the quality of the procedure. VII. Conclusion The study and comparison of the cost and quality of paths to justice could be significantly facilitated by construction of composite index. On their ways to justice, the users evaluate distinct properties of the process. According to our theoretical framework, the three most important indicators are the costs, the quality of the procedure, and the quality of the outcome. These concepts were operationalized in detail in related articles and briefly outlined above. Operationalization of the indicators, however, is only the first step in index construction. It is equally important to put in place a transparent and coherent scheme for rating the importance of the indicators. This scheme should be operationalized at the three levels at which indicators are aggregated. Establishing criteria for prioritizing the indicators is one of the most important phases of the index construction. Giving inappropriate weights to the indicators could tilt the composite index into a direction that compromises the validity and integrity of the measurement effort. The importance of the indicators is expressed through the process of weighting. Not all observed indicators require re-assessment of their importance. Some indicators reflect factual statements, which could be true or false, but cannot be more important or less important. Other indicators, such as the quality of the procedure and the quality of the outcome, are subjective, meaning that two users of justice could assess similar experiences differently. Both assessments could be true, depending on the subjective value a person places on a particular indicator. It is completely possible that one user of justice values the opportunity to have her voice heard more than the possibility to correct wrong information. Another pair of users could disagree on what is more important in the outcome – its restorative effect or its enforceability. Based on the 24 subjective preferences, both users could be right. Apparently, the subjective preferences could have a strong influence on the composite index. If the preferences could be identified and the structure is stable, the observed data could be adjusted accordingly or, as otherwise said, weighted. In the paper above, we discuss two models of weighting – stated preferences and extracted association weights. Despite the significant difference in the perspectives from which the two models extract the weights, we saw that when applied to empirical data both models produce very similar outcomes. Findings like this suggest that users of justice might have stable preferences with regard to the importance of the subjective indicators. However, we tested this hypothesis only with the quality of the procedure indicators. More research on other paths to justice is needed in order to formulate more conclusive inferences on whether there are universal, or at least path- specific, preference structures. If both methods for weighting produce similar results, which one should be recommended? Before answering this question, we should consider the alternative of not using weights. Above, we discuss numerous disadvantages of the application of the weights. At least three groups of arguments against weighting and in favour of using the observed data could be outlined. First is the validity argument – weighting could adjust the data, but, at the same time, jeopardize its validity. In most studies, these risks will be difficult to control against, since there is often no base-line data to assess the performance of the index. Next, the practical argument that extraction of weights requires additional resources appears. This is particularly true for the importance weights. In the end, the application of weights should be critically reviewed against their impact on the data validity. In the text above, we outline a strategy for testing the validity of the weights against concepts, which could serve as proxies of the indicators (i.e. perceptions on satisfaction or favourability). What was said in the preceding paragraph does not necessarily mean that weighting is harmful for the validity of composite index. It is a caution that only weights, based on solid data and sound theoretical models, should be used to adjust the observed data. If this is the case, we recommend the use of factor analysis for extraction of association weights. The model is based on the expectation that the lower-level items measure the unobserved upper-level items. In general, the association weights are easier to extract than the importance weights. In addition, our empirical data strongly suggests that the association weights extracted with factor analysis produce similar results to the importance weights. With this analysis, the methodology for the Access to Justice Index has been reviewed and substantiated. The framework of the measurement has been outlined and the use of indexes was examined. The construction now allows for future evaluation on different legal paths a user encounters. As a result, not only can comparisons be made to provide the user with his or her best option, but improvements can be made where values depict an unsatisfactory picture. An accurately computed index is more likely to result by following the structure above and, subsequently, a greater understanding of the quality of justice will evolve. 25 Appendix A: Methodology for data collection 1. Data used for the extraction of association weights Empirical data on experiences of users of justice in the Netherlands were collected through a cross-sectional survey in 2008. The study collects responses from individuals who experienced a vehicle-related consumer problem and sought resolution through the Dutch Consumer Dispute Commission. All individuals who addressed the Commission with vehicle-related problems in the previous 12 months received an invitation for participation in this study via the Consumer Dispute Commission. In this invitation letter, they were told that the purpose of the study was to assess their experience with the Consumer Dispute Commission concerning the cost and quality of the procedure and the outcome they obtained. The people who were invited were offered a monetary reward of � 25 for their participation. In total, 850 individuals were invited to participate in the study. 230 of them responded to the invitation, resulting in a response rate of 27.1%. 34 of them were invited to participate in a focus group study. In addition, 74 respondents were asked to participate in the study at a later point in time, as it was decided to conduct a second survey with an improved version of the questionnaire. In total, 151 usable responses were collected. 2. Data used for the extraction of importance weights In order to understand the users’ preferences on the items of the quality of the outcome and quality of the procedure indicators, a quasi-experiment was carried out. 130 second-year law students from Tilburg University were invited to complete an online questionnaire that measured how the individual items are ranked against similar items41. For instance, the respondents were asked to rank the accuracy of the procedure against all 6 other indicators that measure procedural justice. In this group, the respondents had to rank the items from 1 to 7, with 1 representing the most important item and 8 representing the least important. According to our theoretical framework, two or more indicators could carry equal levels of importance. Therefore, the questionnaire allowed placing the same ranks on more than one item. Hypothetically, a respondent could have chosen to rank all indicators as 1, which would have meant that they share equal levels of importance. Four different types of the survey were distributed to groups of similar sizes. Each group was presented with a dispute case and its resolution, to which the students had to relate their responses42. The four cases had different underlying problems: − Armed robbery; 41 All law students enrolled in a course English Legal Language Skills were invited to participate. The questionnaire was distributed in English which might account for certain degree of measurement error. 42 For the texts of the four case studies see http://www.measuringaccesstojustice.com/index.php/ELLS 26 − Relationship breakdown and split-up; − Denial of student loan; − Consumer problem with service provider. In total, 102 valid responses were received, equivalent to a response rate of 78%. Particular reliability risks for the data collected through internet questionnaires were the two response order effects – primacy and yea-saying . In order to identify patterns in the data which signal those effects, we counted how many times a respondent selected identical values for two adjacent indicators. There are 33 indicators in the sample, grouped into 7 categories43. The mean value of the repeated scores is 8.11, with standard deviation of 5.95. A cut off value of 1.96 standard deviations above the mean44 was selected for removing responses as plagued by primacy and/or yea- saying. Following this procedure, 4 responses were eliminated from the data set,45 resulting in 98 total responses. 43 3 categories of indicators of the quality of the procedure, 3 categories of indicators of the quality of the outcome and 1 group which asks for the importance of the 3 general indicators – costs of the procedure, quality of the procedure and quality of the outcome. 44 Cut off value = 19.77 20≈ repeated rankings out of the 33 responses 45 Additionally, the data set was analyzed for inconsistency in the ratings. The major concern was that for some set of indicators, non-consequential ranks were observed – i.e. item rated at 7th place but no item rated 6th. As this inconsistency would contradict the logic of the ranking, we re-organized the interrupted ranks into non-interrupted series. This transformation slightly decreased the mean ratings and improved the consistency of the data. 27 Appendix B: Computation of weights 1. Association weights – principal components analysis Table 4 reports the component loadings of the 7 items measuring the procedural justice concept. Only one component exceeds the eigenvalues threshold, indicating that the common variation is associated with one component. The component loadings are subsequently used as weights. Table 4: Association weights – principal component analysis Indicator Component Loading Accuracy 0.84 Correctability 0.84 Ethicality 0.77 Process Control 0.76 Decision control 0.81 Consistency 0.82 Bias Suppression 0.89 2. Association weights - multiple regression analysis Table 4 shows the un-standardized β coefficients from the multiple regression of the 7 items that measure the procedural justice on the satisfaction with the procedure. The β coefficients were used as weights without additional conversion. Table 5: Association weights - multiple regression analysis Indicator MR Accuracy 0.05 Correctability 0.14 Ethicality 0.05 Process Control 0.04 Decision control 0.37** Consistency 0.04 Bias Suppression 0.44** **The coefficient is statistically significant at the 0.01 level 3. Importance weights Unlike the association weights, the importance weights were obtained from a quasi- experiment with a sample of law students. The respondents were asked to report how important the particular indicator is with regard to a hypothetical dispute. Each indicator is ranked from 1 (most important) to n (least important, where n = the number of indicators). Therefore, lower ranks signified more important indicators. In 28 order to transform the ranks into weights, we first reversed the order of the indicator. From each score we extracted its deviation from the mean. The sign of the mean deviation was then reversed and again added to the mean. We take the natural logarithm of the reversed score as weight (see Table 6). Table 6: Importance weights Original value Reversed value Natural logarithm Accuracy 2.37 3.32 1.20 Correctability 2.71 2.98 1.09 Ethicity 3.35 2.34 0.85 Process control 3.00 2.69 0.99 Decision control 3.32 2.37 0.86 Consistency 2.88 2.82 1.04 Bias suppression 2.30 3.39 1.22 
work_2fjwwisssvg35n4sfsyy55jaem	----	A Taxonomy of Organizational Justice Theories ? Academy of Management Review, 1987, Vol. 12, No. 1, 9-22. A Taxonomy of Organizational Justice Theories JERALD GREENBERG Ohio State University A taxonomy is presented that categorizes theories of organizational justice with respect to two independent dimensions: a reactive- proactive dimension and a process-content dimension. Various theo- ries within each of the four resulting categories are identified. The implications of the taxonomy are discussed with respect to clarifying theoretical interrelationships, tracking research trends, and identify- ing needed areas of research. Stimulated by conceptualizations of justice in organizations by such theorists as Homans (1961), Adams (1965), and Walster, Berscheid, and Wal- ster (1973), organizational researchers devoted considerable attention in the 1960s and 1970s to testing propositions about the distribution of pay- ment and other work-related rewards derived from equity theory (for reviews, see Campbell & Pritchard, 1976; Greenberg, 1982). Although reviews and critiques of equity theory once domi- nated the pages of organizational journals (e.g., Goodman & Friedman, 1971; Pritchard, 1969; Weick, 1966), more recently it has been the sub- ject of far less attention (Reis, 1986). It would be a mistake, however, to view this trend as an indication that organizational scientists are less interested in matters of justice and fairness in organizations than they used to be. Indeed, con- cerns about fairness have been expressed in such organizational domains as conflict resolution (Aram & Salipante, 1981), personnel selection (Arvey, 1979), labor disputes (Walton & McKersie, 1965), and wage negotiation (Mahoney, 1975), to name just a few. Although research inspired by equity theory has slowed down greatly, there have emerged a variety of different approaches to justice that are at least as useful in explaining behavior in a broader variety of organizational contexts. Because there has been a proliferation of such newer approaches and because these may be less familiar to organizational scientists, the present paper will categorize various con- ceptualizations of justice around a taxonomic scheme. This taxonomy will not only offer a par- simonious way of organizing these various con- ceptualizations, but in so doing, will highlight their interrelationships and their importance to the study of organizations. Dimensions of the Taxonomy The present taxonomy is derived by combin- ing two conceptually independent dimensions: a reactive-proactive dimension and a process- content dimension. It is not assumed that these are the only organizing dimensions that may be identified. Indeed, it is possible that different tax- onomic schemes may be proposed that are based on completely different conceptual dimensions. However, the dimensions identified in the pres- ent taxonomy appear to be very useful ones for organizing a wide range of conceptualizations of interest in the field of organizational behavior. Reactive-Proactive Dimension The reactive-proactive dimension was sug- gested by a distinction made by Van Avermaet, McClintock, and Moskowitz (1978), and was used 9 to organize the equity theory literature by Green- berg (1982). The distinction is between seeking to redress injustice and striving to attain justice. A reactive theory of justice focuses on people's attempts either to escape from or to avoid per- ceived unfair states. Such theories examine reac- tions to injustices. By contrast, proactive theories focus on behaviors designed to promote justice. They examine behaviors attempting to create just states. Process-Content Dimension The second dimension, the process-content dimension, was inspired by legal research dis- tinguishing between the way verdicts are derived and what those verdicts are (Walker, Lind, & Thibaut, 1979). Mahoney (1983) made a similar distinction by differentiating between the pro- cesses by which wages are determined and the outcome of those processes. As such, we may distinguish between approaches to justice that focus on the ends achieved and the means used to acquire those ends. A process approach to justice focuses on how various outcomes (in organizations, pay and rec- ognition are good examples) are determined. Such orientations focus on the fairness of the pro- cedures used to make organizational decisions and to implement those decisions. In contrast, content approaches concern themselves with the fairness of the resulting distribution of outcomes. These perspectives address the relative fairness of the outcomes received by various organiza- tional units (typically either individuals or groups). Identifying Theories Within the Taxonomy It is assumed that the reactive-proactive dimen- sion and the process-content dimension are inde- pendent of each other, thereby yielding four dis- tinct classes of justice conceptualizations when the two dimensions are combined. Table 1 organ- izes these approaches and identifies a primary exemplar of each. Two points must be made regarding the theo- ries in this taxonomy. First, no attempt has been made to be exhaustive. Instead, the theories iden- tified and described are ones that are either well- established or promising ones within psychol- ogy or sociology, fields within which the study of justice in organizations traditionally has been rooted. Limiting the examples does not imply that other theories would not fit in. Rather, in view of the clarifying function of the present work, ex- cluding them is more reflective of a judgment regarding the limitations of their demonstrated or potential value for organizational study. Second, although some of the theories classi- fied by the present taxonomy have been widely applied to organizational contexts, none were formulated with organizations in mind as their exclusive focus. Even Adams's (1965) popular the- ory of inequity, originally tested in work settings, has been described as a general theory of social behavior (Walster et al., 1973). Other theories presented here originated within the legal milieu (e.g., Thibaut & Walker, 1975). Nonetheless, because the theories have been, or are now being used to explain organizational behavior, they will be referred to collectively as theories of organizational justice. Table 1 Taxonomy of Organizational Justice Theories with Corresponding Predominant Exemplars Reactive- Content-Process Dimension Proactive Dimension Content Process Reactive Content Reactive Process Reactive Equity theory Procedural justice (Adams, 1965) theory (Thibaut & Walker, 1975) Proactive Content Proactive Process Proactive Justice judgment Allocation preference theory (Leventhal theory (Leventhal, (1976a, 1980) Karuza, & Fry, 1980) 10 Reactive Content Theories Reactive content theories are conceptual ap- proaches to justice that focus on how individuals respond to unfair treatment. Organizational sci- entists are probably most familiar with this class of justice theory because most popular conceptu- alizations of justice in organizations fall within this category. Included among these theories are Homans's (1961) theory of distributive justice, and Adams's (1965) and Walster et al.'s (1973) ver- sions of equity theory (see also Walster, Walster, & Berscheid, 1978). Despite several differences in the specifics of their formulation (see Cohen & Greenberg, 1982), these theories share an impor- tant common orientation in explicitly stating that people will respond to unfair relationships by displaying certain negative emotions, which they will be motivated to escape by acting so as to redress the experienced inequity. It is this aspect of the theories that qualifies them as reactive content theories: They focus on how people react to unfair distributions of rewards and resources. Conceptually rooted in the tradition of balance theories popular in the 1950s and 1960s (e.g., Festinger, 1957; Heider, 1958) these approaches to justice conceptualized "equitable," or "distri- butively just" relations as ones in which there was an equal balance between the ratio of a person's contributions and his or her outcomes. Unequal balances, such as those that existed whenever workers were either overpaid or un- derpaid relative to another person with equal contributions, were assumed to be unpleasant, which were theorized to prompt changes in job satisfaction and/or performance. In particular, Adams's (1965) theory of inequity, the approach that inspired most of the justice-related research in organizational settings, specified that over- paid workers would feel "guilty" and that under- paid workers would feel "angry." These nega- tive states were expected to motivate behavioral and/or attitudinal changes on the part of the workers involved that altered, either behavior- ally or perceptually, the relationship between their own and another's contributions and out- comes (cf., Greenberg, 1984). For example, work- ers perceiving an inequitable state may react behaviorally by altering their performance levels, and/or cognitively by attempting to justify the outcomes received (Walster et al., 1978). It was, no doubt, because the theoretical met- rics were so explicitly suited to work-related exchanges that equity theory became so popu- larly applied to organizational research. Indeed, it was within simulated work settings that most of the research on equity theory was conducted (e.g., Lawler & O'Gara, 1967; Pritchard, Dun- nette, & Jorgenson, 1972). In the prototypical test of equity theory, the experimenter manipulated inequity by leading worker-subjects to believe that the basis for their payment was unfair- thereby creating either "underpayment inequity" or "overpayment inequity." For example, this may have included: (a) leading subjects to be- lieve that an error occurred that caused them to receive the same wage as their more qualified co-workers, thereby manipulating overpayment (e.g., Adams & Rosenbaum, 1962), or (b) allow- ing subjects to discover through conversations with co-workers that they were equally qualified but unequally paid (e.g., Garland, 1973). Typically, performance on some work task- popularly a proofreading task for which quan- tity and quality measures could be taken-con- stituted the dependent variable. According to equity theory, underpaid workers should be less productive and less satisfied than equitably paid workers and overpaid workers should be more productive and less satisfied than equitably paid workers. In general, and over a wide variety of experimental settings, support was found for these predictions (for a review, see Greenberg, 1982). Several sociological theories that have devel- oped in response to certain aspects of Adams's conceptualization, particularly the nature of social comparisons, also should be included within the category of reactive content theories. Among these is the status value version of equity theory proposed by Berger and his associates (Anderson, Berger, Zelditch, & Cohen, 1969; Berger, Zelditch, Anderson, & Cohen, 1972). 11 According to this formulation, a person's feel- ings of inequity and reactions to inequity result not from comparisons made to a specific other person (referred to as a "local comparison"), but from comparisons to a generalized other (referred to as a "referential comparison"), such as an occupational group. Extending this approach, Jasso's (1980) theory of distributive justice ignored the outside comparisons in justice evaluations altogether, and defined justice in terms of the comparisons people make between their actual share of goods and their beliefs about a "just share." Despite some important conceptual dif- ferences between these theories and the more familiar Adams formulation, their similar focus on how people react to beliefs about the unfair distribution of outcomes (regardless of the com- parative basis on which these judgments are formed) allows these theories to be clearly cate- gorized as reactive content theories. More closely related to traditional equity theory, and the final reactive content theory of justice to be identified, is the theory of relative deprivation (Crosby, 1976). Based on findings dat- ing back to World War II (Stouffer, Suchman, DeVinney, Star, & Williams, 1949), but also more recently examined in organizational contexts (Crosby, 1984; Martin, 1981), the relative depriva- tion orientation to justice is becoming increas- ingly more popular among organizational scien- tists. In its most general form, the relative depri- vation approach asserts that certain reward dis- tribution patterns will encourage people to make certain social comparisons, which will lead to feelings of deprivation and resentment, causing a variety of reactions ranging from depression through the outbreak of violent riots (Martin, 1981). The term "relative deprivation," first used by Stouffer et al. (1949), refers to the counterintuitive finding that black soldiers stationed in the south felt more satisfied with military life than black soldiers stationed in northern bases despite socio- economic conditions being more favorable in the north. These effects were attributed to the ten- dency for black soldiers in the south to feel more privileged than their civilian counterparts in the south, whereas, black soldiers in the north felt relatively less privileged than their civilian coun- terparts in the north. Although most of the subse- quent relative deprivation research focused on violent attempts to change political systems (Crosby, 1976), some efforts have focused on how aggrieved employees react to organizationally induced discontent (Martin, 1981). For example, large-scale survey studies by Crosby (1982, 1984) found that working women, especially those in high prestige jobs, who although they may be more advantaged than nonworking women, tend to be more aggrieved because they compare themselves to working men, relative to whom they are less advantaged. Research of this type is typical of that generated today by relative deprivation theory. Because it examines how people will respond to perceived unfair reward distributions, relative deprivation theory clearly can be identified as a reactive content theory. Proactive Content Theories In contrast to reactive content theories, which focus on how workers respond to fair and unfair outcome distributions, proactive content theories focus on how workers attempt to create fair out- come distributions. The major theoretical state- ments in this category have come from Leventhal (1976a, 1980), who in the late 1960s and early 1970s conducted a series of laboratory studies in which the basic pattern of independent and dependent variables found in traditional reac- tive accounts of justice were reversed. That is, Leventhal and his associates typically manipu- lated concerns about justice (through appropri- ate instructional sets) to examine their impact on reward allocation decisions (for reviews, see Freedman & Montanari, 1980; Mikula, 1980). Leventhal (1976b) contended that people some- times proactively strive to create equitable distri- butions of reward-those in which the rewards received are proportional to the contributions made-because these will be the most benefi- cial to all concerned parties in the long run. Indeed, many studies (e.g., Greenberg & Leven- thal, 1976; Leventhal & Michaels, 1969) have shown that allocators often divide resources equi- tablv between recipients (for reviews, see Adams 12 & Freedman, 1976; Freedman & Montanari, 1980). However, additional research has shown that allocators of rewards sometimes distribute those rewards in ways that violate the equity norm-such as by distributing rewards equally, or in accordance with recipients' needs (Schwin- ger, 1980). Recognizing that such violations of the equity norm may be completely fair under appropriate circumstances, Leventhal (1976a, 1980) formulated his justice judgment model. This model proposed that individuals attempt to make fair allocation decisions by variously applying several possible allocation rules to the situations they confront. For example, in situations in which the importance of maintaining social harmony between group members is stressed, the per- ceived fair allocation practice would call for fol- lowing the equality norm-dividing rewards equally regardless of possible differential contri- butions among recipients (Deutsch, 1975). Whereas Leventhal's approach to reward allo- cation practices is instrumental in character, another proactive content theory of justice, Ler- ner's (1977; Lerner & Whitehead, 1980) justice motive theory is decidedly more moralistic. Ler- ner (1982) argued that justice is the preeminent concern of human beings and the quest for jus- tice as a means to a profit-maximizing end (as Leventhal proposed) is a mythical illusion. Like Leventhal, however, Lerner recognized that allo- cation practices often go beyond the possibility of proportional equity. In fact, Lerner identified four principles that are commonly followed: (a) competition-allocations based on the outcome of performance, (b) parity-equal allocations, (c) equity- allocations based on relative contribu- tions, and (d) Marxian justice-allocations based on needs. Briefly, justice motive theory stipulates that the form of justice that will be followed in making allocation decisions will depend on the nature of the relations between the parties involved in con- junction with the focus of the parties on each other as individuals or as occupants of positions. For example, the theory predicts that an individ- ual reacting to a close friend as an individual will emphasize that person's needs when mak- ing an allocation decision. Similarly in more dis- tant relationships, people are expected to follow the parity norm when the other is recognized as an individual, and the equity norm when react- ing to the other as a role incumbent. Research relating various reward allocation practices to the nature of the relationship between people has been supportive of justice motive theory (e.g., Carles & Carver, 1979). Despite some differences in underlying philo- sophies, both justice judgment theory and jus- tice motive theory make similar predictions about how people will allocate rewards under various circumstances-predictions that largely have been supported by research (for a review, see Deutsch, 1985). Both of these approaches clearly qualify as proactive content theories of justice because they deal with how people seek to make decisions about the allocation of reward. Reactive Process Theories Although it appears that theories focusing on the fairness of the processes used to make deci- sions (process theories) do not differ appreciably from those theories focusing on the fairness of the resulting decisions (content theories), this is not the case because process theories stem from a different intellectual tradition-in particular, the law. In fact, legal scholars have commonly accepted that the procedures used to make judi- cial decisions will have a profound influence on the public's acceptance of them (Fuller, 1961). At approximately the same time when proac- tive content theories were formalized and re- searched (the early 1970s) a team of researchers at the University of North Carolina, John Thibaut and Laurens Walker, influenced by the tradition of research on legal procedures, undertook a series of investigations designed to compare reactions to various dispute resolution procedures (for a review, see Thibaut & Walker, 1975). Their theory of procedural justice distinguished be- tween three parties: two disputants (such as the litigants in a court case), and an intervening third party (such as a judge); and two stages of the dispute-resolution process: the process stage, during which evidence is presented, and the 13 decision stage, during which the evidence is used to resolve the dispute. The ability to control the selection and development of the evidence used to resolve the dispute is referred to as process control; the ability to determine the outcome of the dispute itself is referred to as decision control (Thibaut & Walker, 1978). The procedures used can vary regarding the degree of control the various parties have over each stage. In particular, procedures may be identified that give third parties control over: both outcomes and procedures, autocratic procedures; decisions but not processes, arbitration proce- dures; processes but not decisions, mediation procedures; and neither processes nor proce- dures, bargaining procedures. Finally, moot procedures are those in which the disputants and third parties share control over outcomes and processes. (Recently, Sheppard, 1984, has pro- posed a more extensive system.) Although reactions to all of these procedures were assessed, Thibaut and Walker were most interested in comparing autocratic and arbitra- tion procedures because these most closely dis- tinguished between the major legal systems. For example, the adversary system, used in Ameri- can and British courts, gives judges control over the verdict but leaves the process (e.g., selection of attorneys, presentation of evidence) in the hands of the disputants themselves. However, the inquisitorial system, used in continental Europe, gives judges control over the collection and presentation of evidence as well as the verdicts. The theory is concerned with how peo- ple will react to each of these decision-making procedures, thereby qualifying as a reactive pro- cess theory. The theory predicts that both liti- gants and observing disinterested parties will be more satisfied with procedures giving them process control (e.g., the adversary system) than those that do not (e.g., the inquisitorial system). The verdicts resulting from procedures offering process control are hypothesized to be perceived as fairer and to be better accepted than those resulting from procedures denying process con- trol. Many studies using a simulated legal deci- sion-making methodology (e.g., Lind, Kurtz, Musante, Walker, & Thibaut, 1980; Walker, Lind, & Thibaut, 1979) have supported this claim (for reviews, see Folger & Greenberg, 1985; Thibaut & Walker, 1975). Interestingly, procedures giv- ing diputants a voice in the decision-making pro- cess tend to enhance the acceptance of even unfavorable decisions (LaTour, 1978; Lind et al., 1980.) Other research has generalized the Thibaut and Walker findings to less formal settings. For example, Tyler and his associates found that reactions to encounters with police officers (Tyler & Folger, 1980), politicians, and teachers (Tyler & Caine, 1981) also are heavily influenced by the procedures that these authorities follow in treating their clients. Recently, organizational researchers have actively attempted to extend and apply Thibaut and Walker's theory of proce- dural justice to a variety of organizational con- texts, such as the resolution of labor disputes (Sheppard, 1984) and the appraisal of job perfor- mance (Greenberg, 1986a, 1986b), among oth- ers (for reviews, see Folger & Greenberg, 1985; Greenberg & Folger, 1983; Greenberg & Tyler, in press). Proactive Process Theories Of the theories identified in this taxonomy, probably the least well-known fall into the proac- tive process category. The predominant theoreti- cal position within this category is Leventhal, Karuza, and Fry's (1980) allocation preference theory. This is an outgrowth of Leventhal's (1976a, 1980) justice judgment model (described earlier) and is proposed as a general model of alloca- tion behavior. However, because the theory has been applied almost exclusively to procedural decisions rather than distributive ones (e.g., Fry & Cheney, 1981; Fry & Leventhal, 1979), it has operated as a proactive process theory. Thus, in contrast with the emphasis on dispute-resolution procedures typical of the reactive process theo- ries, the proactive process orientation tends to focus on allocation procedures. By using this orientation, one seeks to determine what proce- dures people will use to achieve justice. 14 Allocation preference theory asserts that allo- cation procedures will be preferred to the extent that they help the allocator attain valued goals, including the attainment of justice. In particular, the theory proposes that people hold expectan- cies that certain procedures will be differentially instrumental in meeting their goals, and that the procedure believed to be most likely to help attain one's goal will be the most preferred one. Eight procedures are identified that may help promote the attainment of justice. These include proce- dures that: (a) allow opportunities to select the decision-making agent, (b) follow consistent rules, (c) are based on accurate information, (d) identify the structure of decision-making power, (e) employ safeguards against bias, (f) allow for appeals to be heard, (g) provide opportunities for changes to be made in procedures, and (h) are based on prevailing moral and ethical stan- dards. The limited research inspired by allocation preference theory offers general support for it. The studies have been of two types-those in which the subjects respond to open-ended re- quests for examples of perceived fair or unfair procedures, and those in which subjects rate the importance of various allocation procedures manipulated in written scenarios. In one open- ended questionnaire study, Sheppard and Lewicki (in press) asked white-collar managers to identify unfair incidents across a variety of managerial roles. Among other principles, they found that subjects identified consistency, bias suppression, correctability, and ethicality, all principles of procedural justice proposed by Leventhal et al. (1980). Similarly, Greenberg (1 986a) asked middle managers to identify determinants of perceived fair performance evaluations, and found proce- dural determinants consistent with Leventhal et al.'s (1980) theory, namely: (a) the soliciting of workers' input prior to evaluations and using it as the basis of evaluations, (b) the availability of two-way communication during appraisal inter- views, (c) the opportunity to challenge/rebut the evaluation received, (d) the degree of the evalu- ator's familiarity with the ratee's work, and (e) the consistent application of evaluation stan- dards. Finally, in several role-playing investigations Fry (Fry & Cheney, 1981; Fry & Leventhal, 1979) found that consistency was believed to be the most important procedural determinant of fair- ness across a variety of allocation settings. In a more extensive study, Barrett-Howard and Tyler (1986) confirmed that consistency was a pow- erful determinant of perceived fairness across a wide variety of situations and social relationships. However, the other procedural elements identi- fied by Leventhal et al. (1980) were found to be perceived as differentially important as determi- nants of fairness in different types of social relationships. Implications of the Taxonomy The present taxonomy serves several useful functions. Among these are its ability: (a) to clar- ify conceptual interrelationships, (b) to track trends in organizational justice research, and (c) to identify needed areas of research and concep- tual development. Clarifying Conceptual Interrelationships Given the proliferation of research and theory about organizational justice, the present taxon- omy is a useful clarifier. By showing how the various theories are distinct and interrelated, the taxonomy provides a schema for conceptually organizing a growing body of work. One result of such a framework is reduced conceptual confusion. An important beneficial effect of this clarifying role is that it encourages researchers to be cogni- zant of existing conceptualizations and to apply the most useful ones to their own work. In the absence of such a taxonomy, it is too easy for researchers to use terms and apply concepts in ways that fail to incorporate existing precedents, thereby potentially adding confusion to the liter- ature. To illustrate this point, consider the recent pro- gram of research on "workplace justice" by Dal- ton and Todor (1 985a, 1985b). In several archival 15 studies, these researchers uncovered evidence that females were more preferentially treated than males in grievance-resolution settings. These findings of objective differences in outcome distributions were then taken as evidence of dif- ferences in "workplace justice outcomes." Al- though it is conceivable that these findings reflect perceived unfair states, it is not possible to con- clude from the Dalton and Todor data that sub- jective feelings of unfairness resulted from the objective outcomes identified. Because this was not their intent, and because they make no such claim, the investigators cannot be faulted. However, the point is that they are using the term "justice" in a way that is not in keeping with a voluminous literature that emphasizes jus- tice as a subjective state or quality. This is not to say that new, more objectively defined perspec- tives are without merit, but simply that current researchers on organizational justice should be aware of previous conceptual advances, such as those identified through the present taxonomy. Tracking Trends in Organizational Justice Research The present taxonomy identifies trends in the questions about justice posed in organizational research. A summary of the representative ques- tions asked by researchers developing the vari- ous types of theories and the corresponding dependent measures used appears in Table 2. Although there have been some recent investi- gations inspired by equity theory (e.g., Green- berg & Ornstein, 1983) and some conceptual clarifications (e.g., Cosier & Dalton, 1983), it is clear that interest in reactive content approaches has waned (Reis, 1986). Instead the emphasis has been on more proactive and more process- oriented conceptualizations. In essence, then, two shifts are identified-a shift from reactive to proactive theories and a shift from content to pro- cess theories. In reaction to the reactive approach of Adams's work in the 1960s (e.g., Adams & Rosenbaum, 1962) investigators such as Leventhal (Leventhal & Michaels, 1969) and Messe (1971) pioneered a more proactive approach in the late 1960s and early 1970s. With this, there was a shift from ask- ing how workers reacted to inequitable payments to how they attempted to create equitable pay- ments. Research of this proactive content type continues, and is especially popular among Euro- pean social scientists. For example, recent repre- sentative efforts have focused on issues such as: (a) the distinctions allocators make between vari- ous types of contributions in making fair alloca- tions (Tornblom & Jonsson, 1985), (b) the commit- ment to justice principles among different classes of people (Montada, Schmitt, & Dalbert, 1986), Table 2 Representative Research Questions and Dependent Measures for Each Type of Organizational Justice Theory Type of Theory Representative Question Prototypical Dependent Measures Reactive Content How do workers react to inequitable Reactions to overpayment or underpayment payments? inequity (reviewed by Greenberg, 1982) Proactive Content How do workers attempt to create fair Adherence to justice norms in reward allocations payments? (reviewed by Freedman & Montanari, 1980) Reactive Process How do workers react to unfair policies Reactions to unfair payment methods or dispute- or legal procedures? resolution methods (reviewed by Folger & Greenberg, 1985) Proactive Process How do workers attempt to create fair Perceptions of procedural fairness (reviewed by policies or procedures? Lind & Tyler, in press) 16 and (c) the reliance upon considerations of need in the attainment of justice (Schwinger, 1986). With the continuation of such research there appears to be developing a better understand- ing of the ways workers behave in the interest of being fair. When Thibaut and Walker (1975) began their research on procedural justice in the early 1970s, it was not a reaction against the shortcomings of reactive process theories. Rather, it was inspired by an interest in the attributes of various dispute- resolution techniques. It was theorists such as Deutsch (1975) and Leventhal (1976b) who first pointed out that procedural justice research may be viewed as an extension of equity theory research into the domain of allocation processes. Folger (1977) was among the first researchers whose work reflected a shift from how workers react to inequitable outcomes to how they react to unfair procedures. His work showed that giv- ing workers the opportunity to have a voice in the decisions affecting them under some condi- tions enhanced their reactions to the outcome of those decisions (for a review, see Greenberg & Folger, 1983). The question of how workers react to various organizational procedures is not only the newest one to interest organizational justice researchers, but also one of the most actively researched areas today (for a statement on the state of the science, see Greenberg & Tyler, in press). Indeed, the attention procedural j ustice has received in recent professional symposia (e.g., Folger, 1986) and special publications devoted to the topic (Greenberg & Tyler, in press; Lind & Tyler, in press) attests to the current high level of interest in applying proactive process orientations to the study of organizational justice. As more organi- zational researchers continue to develop a rap- prochement between their interests and a pro- cess orientation to justice, there has been a shift away from legal-based questions regarding fair procedures to more organizationally based ques- tions. The growing body of research and theory considering these questions promises to extend our knowledge of organizational justice. For example, the present taxonomy proves to be useful in tracing the conceptual roots of two rapidly evolving and related lines of theory development in organizational justice. One of these, Folger's (1986, in press) referent cogni- tions theory, expands upon relative deprivation theory and equity theory when explaining rela- tive satisfaction with work outcomes. The theory extends the reactive content orientation of its pre- decessors by distinguishing between two types of reactions-those based on relative com- parisons, leading to feelings of dissatisfactiono, and those based on beliefs about what should have happened, leading to feelings of resent- ment and moral outrage. Resentment reactions are theorized to be based on the procedures used to bring about various outcomes, whereas satis- faction with those outcomes is based on beliefs about the relative outcome levels themselves. In terms of the present taxonomy, it can be said that referent cognitions theory expands the con- cept of relative deprivation to a process prospec- tive beyond its more traditional, content per- spective. Similarly, related research by Bies (1987; Bies & Moag, 1986) focuses on feelings of moral out- rage. Bies asserts that justice perceptions are better explained by the social accounts given for them than by the appearance of an inequity based on comparisons of relative outcomes and inputs. Social accounts of events-including those that claim mitigating circumstances, in- voke superordinate ideological goals, refer to likely future states, and offer apologies for cur- rent states-are offered as likely determinants of reactions to injustice. Bies also claims that social accounts can be used to explain reactions to out- come distribution procedures as well as the out- come distributions themselves. As such, Bies's conceptualization, like Folger's, provides a framework for integrating process-based and the content-based reactions to injustice. In addition, Bies's work sheds some light on an important deficiency of reactive theories of organizational justice-namely, the conditions under which dif- ferent reactions are likely to be exhibited. 17 The present taxonomy helps us recognize the conceptual traditions from which new theoreti- cal developments, such as those of Folger (1986) and Bies (1987) were derived, and as such facili- tates appreciation for their integrative nature. Thinking of these developments as markers of justice theories, the taxonomy may be viewed as a road map that helps chart the course of theoreti- cal progress. Identifying Needed Areas of Research and Theory By highlighting the relationships between the various types of organizational justice theories, the present taxonomy helps identify areas of the- oretical and empirical deficiency. In particular, it helps spot research areas across categories in which parallel types of investigations have not been undertaken. Most notable are questions stemming from the proactive process orientation. In the abstract, this should not be surprising given that the proactive process approach is the new- est theoretical approach to organizational justice. However, questions should be asked about the type of research that needs to be conducted in this area relative to that which already has been done. As described earlier, in studies inspired by the proactive process, subjects were asked either to generate and categorize lists of per- ceived fair/unfair job behaviors or to assess the importance of various theoretically derived pro- cedural determinants of fairness manipulated in written scenarios. Both types of research essen- tially serve as validation studies of the research from which they were derived. Although these investigations are useful, they are not parallel to those found in the proactive content category because how subjects make procedural decisions was not observed directly. Although in proactive content studies the resource allocation decisions made by subjects are observed under a variety of different con- ditions (see Freedman & Montanari, 1980), in- vestigators interested in procedural issues have as of yet conducted analogous studies. Indeed, a program of research designed to determine the conditions under which people make vari- ous procedural decisions would be useful to the- ory development in the proactive process area. Two types of investigations are warranted. First, laboratory studies could be conducted in which personal and situational factors are manipulated to see how they influence decisions about what procedures should be used. Second, a post hoc, policy-capturing investigation could be done in which investigators analyze the conditions under which various actual procedural decisions are made. One area in which a contribution of the pres- ent taxonomy may be realized is pay satisfaction. In particular, Heneman (1985) identified "pay poli- cies and administration" as a class of variables that need to be included in his model of pay satisfaction. Citing evidence (Dyer & Theriault, 1976; Weiner, 1980) showing that understanding how pay raises were determined added to the explained variance in pay satisfaction beyond pay level alone, Heneman (1985) concluded that "perceptions about how pay is administered do appear to have a bearing on people's pay satis- faction" (p. 132). In making this claim for a direc- tion in which to extend theories of pay satisfac- tion beyond equity theory, Heneman recognized the distinction between content and process the- ories of organizational justice articulated here. Heneman's insight may have been realized ear- lier given the present taxonomy. Still, seeing how well the taxonomy fits Heneman's conceptualiza- tion provides encouragement for using it to derive further insight about pay satisfaction. Indeed, process theories of organizational justice may be used to suggest factors likely to enhance satis- faction with pay and the consequences of per- ceived unfair pay-determination practices. Finally, it should be noted that the present tax- onomy provides a useful framework for appreci- ating the context within which several newly emerging lines of research are derived. For example, Greenberg's line of research on perfor- mance appraisal (Greenberg, 1986b, in press) was inspired by attempts to apply research and theory on procedural justice to employee eval- uation situations. Similarly, Sheppard's (1985) efforts at applying his model of organizational 18 dispute resolution (1984) were inspired by a tradi- tion of research applying procedural justice notions to legal disputes. Both these lines of research represent areas made salient by the present taxonomy. Conclusion In 1966, Weick referred to equity theory as "among the more useful middle-range theories of organizational behavior" (p. 439). In 1984, Miner classified equity theory among those in his list of "not so useful" theories of organiza- tional behavior. Equity theory has fallen into disfavor partially because of its limited applica- bility and partially because of its internal valid- ity as a theory (Furby, 1986). Also it may be because researchers have grown weary of the restricted range of questions about organizational justice it addresses. Yet, questions about justice still arise in many organizational milieus, among them contexts as diverse as pay plans (compar- able worth) (Mahoney, 1983), grievance proce- dures, selection and placement practices, and evaluation policies (Folger & Greenberg, 1985; Greenberg & Folger, 1983). The questions raised about justice in these contexts are not ones that equity theory, or any of the other reactive con- tent theories, are equipped to address. However, there are other theories of organizational justice presented in this article that may be particularly well-suited to such matters. To the extent that the taxonomy presented in this article has brought them to the attention of organizational resear- chers, then it has paved the way for increased understanding to emerge an understanding of various organizational phenomena, and of jus- tice itself. References Adams, J. S. (1965) Inequity in social exchange. In L. Berko- witz (Ed.), Advances in experimental social psychology (Vol. 2, pp. 267-299). New York: Academic Press. Adams, J. S., & Freedman, S. (1976) Equity theory revisited: Comments and annotated bibliography. In L. Berkowitz & E. Walster (Eds.), Advances in experimental social psy- chology (Vol. 9, pp. 43-90). New York: Academic Press. Adams, J. S., & Rosenbaum, W. B. (1962) The relationship of worker productivity to cognitive dissonance about wage inequities. Journal of Applied Psychology, 46, 161-164. Anderson, B., Berger, J., Zelditch, M., & Cohen, B. P. (1969) Reactions to inequity. Acta Sociologica, 12, 1-12. Aram, J. D., & Salipante, P. F., Jr. (1981) An evaluation of organizational due process in the resolution of employee/ employer conflict. Academy of Management Review, 6, 197-204. Arvey, R. D. (1979) Fairness in selecting employees. Reading, MA: Addison-Wesley. Barrett-Howard, E., & Tyler, T. R. (1986) Procedural justice as a criterion in allocation decisions. Journal of Personality and Social Psychology, 50, 296-304. Berger, J., Zelditch, M., Anderson, B., & Cohen, B. P. (1972) Structural aspects of distributive justice: A status-value formulation. In J. Berger, M. Zelditch, & B. Anderson (Eds.), Sociological theories in progress (Vol. 2, pp. 21-45). Boston: Houghton Mifflin. Bies, R. J. (1987) The predicament of injustice. The manage- ment of moral outrage. In L. L. Cummings & B. M. Staw (Eds.), Research in organizational behavior (Vol. 9, pp. 289-319). Greenwich, CT: JAI Press. Bies, R. J., & Moag, J. S. (1986) Interactional justice: Commu- nication criteria of fairness. In R. J. Lewicki, B. H. Sheppard, & M. H. Bazerman (Eds.), Research on negotiation in organizations (Vol. 1, pp. 43-55). Greenwich, CT: JAI Press. Campbell, J. P., & Pritchard, R. A. (1976) Motivation theory in industrial and organizational psychology. In M. D. Dunnette (Ed.), Handbook of industrial and organizational psychology (pp. 63-130). Chicago: Rand McNally. Carles, E. M., & Carver, C. S. (1979) Effects of person salience versus role salience on reward allocation in the dyad. Journal of Personality and Social Psychology, 37, 2071-2080. Cohen, R. L., & Greenberg, J. (1982) The justice concept in social psychology. In J. Greenberg & R. L. Cohen (Eds.), Equity and justice in social behavior (pp. 1-41). New York: Academic Press. Cosier, R. A., & Dalton, D. R. (1983) Equity theory and time: A reformulation. Academy of Management Review, 8, 311-319. Crosby, F. (1976) A model of egoistical relative deprivation. Psychological Review, 83, 85-113. Crosby, F. (1982) Relative deprivation and working women. New York: Oxford University Press. 19 Crosby, F. (1984) Relative deprivation in organizational settings. In B. M. Staw & L. L. Cummings (Eds.), Research in organizational behavior (Vol. 6, pp. 51-93). Greenwich, CT: JAI Press. Dalton, D. R., & Todor, W. D. (1985a) Gender and workplace justice: A field assessment. Personnel Psychology, 38, 133-151. Dalton, D. R., & Todor, W. D. (1985b) Composition of dyads as a factor in the outcomes of workplace justice: Two field assessments. Academy of Management Journal, 28, 704- 712. Deutsch, M. (1975) Equity, equality and need: What deter- mines which value will be used as the basis for distribu- tive justice? Journal of Social Issues, 31(3), 137-149. Deutsch, M. (1985) Distributive justice. New Haven, CT: Yale University Press. Dyer, L., & Theriault, R. (1976) The determinants of pay satisfaction. Journal of Applied Psychology, 61, 596-604. Festinger, L. (1957) A theory of cognitive dissonance. Evans- ton, IL: Row, Peterson. Folger, R. (1977) Distributive and procedural justice: Com- bined impact of "voice" and improvement on experienced inequity. Journal of Personality and Social Psychology, 35, 108-119. Folger, R. (Chair) (1986, April) Fairness is more than equity: New approaches to studying organizational injustice. Sym- posium presented at the first annual conference of the Society for Industrial and Organizational Psychology, Chicago. Folger, R. (1986) Rethinking equity theory: A referent cogni- tions model. In H. W. Bierhoff, R. L. Cohen, & J. Greenberg (Eds.), Justice in social relations (pp. 145-162). New York: Plenum. Folger, R. (in press) Reformulating the preconditions of resentment: A referent cognitions model. In J. C. Masters & W. P. Smith (Eds.), Social comparison, social justice, and relative deprivation: Theoretical, empirical, and pol- icy perspectives. Hillsdale, NJ: Erlbaum. Folger, R., & Greenberg, J. (1985) Procedural justice: An inter- pretive analysis of personnel systems. In K. Rowland & G. Ferris (Eds.), Research in personnel and human resources management (Vol. 3, pp. 141-183). Greenwich, CT: JAI Press. Freedman, S. M., & Montanari, J. R. (1980) An integrative model of managerial reward allocation. Academy of Man- agement Review, 5, 381-390. Fry, W. R., & Cheney, G. (1981, May) Perceptions of proce- dural fairness as a function of distributive preference. Paper presented at the meeting of the Midwestern Psycho- logical Association, Detroit. Fry, W. R., & Leventhal, G. S. (1979, March) Cross-situational procedural preferences: A comparison of allocation prefer- ences and equity across different social settings. In A. Lind (Chair), The psychology of procedural justice. Sympo- sium conducted at the meeting of the Southwestern Psy- chological Association, Washington, DC. Fuller, L. (1961) The adversary system. In H. Berman (Ed.), Talks on American law (pp. 10-22). New York: Vintage Books. Furby, L. (1986) Psychology and justice. In R. L. Cohen (Ed.), Justice: Views from the social sciences (pp. 153-203). New York: Plenum. Garland, H. (1973) The effects of piece-rate underpayment and overpayment on job performance: A test of equity theory with a new induction procedure. Journal of Applied Social Psychology, 3, 325-334. Goodman, P. S., & Friedman, A. (1971) An examination of Adams' theory of inequity. Administrative Science Quar- terly, 16, 271-288. Greenberg, J. (1982) Approaching equity and avoiding ineq- uity in groups and organizations. In J. Greenberg & R. L. Cohen (Eds.), Equity and justice in social behavior (pp. 389-435). New York: Academic Press. Greenberg, J. (1984) On the apocryphal nature of inequity distress. In R. Folger (Ed.), The sense of injustice (pp. 167-188). New York: Plenum. Greenberg, J. (1986a) Determinants of perceived fairness of performance evaluations. Journal of Applied Psychology, 71, 340-342. Greenberg, J. (1986b) Organizational performance appraisal procedures: What makes them fair? In R. J. Lewicki, B. H. Sheppard, & M. Bazerman (Eds.), Research on negotia- tion in organizations (Vol. 1, pp. 25-41). Greenwich, CT: JAI Press. Greenberg, J. (in press) Using diaries to promote procedural justice in performance appraisals. Social Justice Review. Greenberg, J., & Cohen, R. L. (1982) Why justice? Normative and instrumental interpretations. In J. Greenberg & R. L. Cohen (Eds.), Equity and justice in social behavior (pp. 437-469). New York: Academic Press. Greenberg, J., & Folger, R. (1983) Procedural justice, partici- pation, and the fair process effect in groups and organiza- tions. In P. B. Paulus (Ed.), Basic group processes (pp. 235-256). New York: Springer-Verlag. Greenberg, J., & Leventhal, G. S. (1976) Equity and the use of overreward to motivate performance. Journal of Per- sonality and Social Psychology, 34, 179-190. Greenberg, J., & Ornstein, S. (1983) High status job title as compensation for underpayment: A test of equity theory. Journal of Applied Psychology, 68, 285-297. 20 Greenberg, J., & Tyler, T. (in press) Why procedural justice in organizations? Social Justice Review. Homans, G. C. (1961) Social behavior: Its elementary forms. New York: Harcourt, Brace, and World. Heider, F. (1958) The psychology of interpersonal relations. New York: Wiley. Heneman, H. G., 11 (1985) Pay satisfaction. In K. Rowland & G. Ferris (Eds.), Research in personnel and human re- sources management (Vol. 3, pp. 115-139). Greenwich, CT: JAI Press. lasso, G. (1980) A new theory of distributive justice. American Sociological Review, 45, 3-32. LaTour, S. (1978) Determinants of participant and observer satisfaction with adversary and inquisitorial modes of adjudication. Journal of Personality and Social Psychology, 36, 1531-1545. Lawler, E. E., III, & O'Gara, P.W. (1967) Effects of inequity produced by underpayment on work output, work quality, and attitudes toward the work. Journal of Personality and Social Psychology, 51, 403-410. Lerner, M. J. (1977) The justice motive: Some hypotheses as to its origins and forms. Journal of Personality, 45, 1-52. Lerner, M. J. (1982) The justice motive in human relations and the economic model of man: A radical analysis of facts and fictions. In V. Derlega & J. Greziak (Eds.), Cooperation and helping behavior: Theories and research (pp. 121-145). New York: Academic Press. Lerner, M. J., & Whitehead, L. A. (1980) Procedural justice viewed in the context of justice motive theory. In G. Mikula (Ed.), Justice and social interaction (pp. 219-256). New York: Springer-Verlag. Leventhal, G. S. (1976a) Fairness in social relationships. In J. W. Thibaut, J. T. Spence, & R. C. Carson (Eds.), Contem- porary topics in social psychology (pp. 211-239). Morris- town, NJ: General Learning Press. Leventhal, G. S. (1976b) The distribution of rewards and resources in groups and organizations. In L. Berkowitz & E. Walster (Eds.), Advances in experimental social psy- chology (Vol. 9, pp. 91-131). New York: Academic Press. Leventhal, G. S. (1980) What should be done with equity theory? In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27-55). New York: Plenum. Leventhal, G. S., Karuza, J., & Fry, W. R. (1980) Beyond fairness: A theory of allocation preferences. In G. Mikula (Ed.), Justice and social interaction (pp. 167-218). New York: Springer-Verlag. Leventhal, G. S., & Michaels, J. W. (1969) Extending the equity model: Perceptions of inputs and allocation of reward as a function of duration and quantity of performance. Journal of Personality and Social Psychology, 12, 303-309. Lind, E. A., Kurtz, S., Musante, L., Walker, L., & Thibaut, J. W. (1980) Procedure and outcome effects on reactions to adjudicated resolution of conflicts of interest. Journal of Personality and Social Psychology, 39, 643-653. Lind, E.A., & Tyler, T.R. (in press) The social psychology of procedural justice. New York: Plenum. Mahoney, T. A. (1975) Justice and equity: A recurring theme in compensation. Personnel, 52(5), 60-66. Mahoney, T. A. (1983) Approaches to the definition of compa- rable worth. Academy of Management Review, 8, 14-22. Martin, J. (1981) Relative deprivation: A theory of distributive injustice for an era of shrinking resources. In L. L. Cum- mings & B. M. Staw (Eds.), Research in organizational behavior (Vol. 3, pp. 53-107). Greenwich, CT: JAI Press. Mess6, L. A. (1971) Equity in bilateral bargaining. Journal of Personality and Social Psychology, 17, 287-291. Mikula, G. (1980) On the role of justice in allocation decisions. In G. Mikula (Ed.), Justice and social interaction (pp. 127-165). New York: Springer-Verlag. Miner, J. B. (1984) The unpaved road over the mountains: From theory to applications. Industrial-Organizational Psy- chologist, 21(2), 9-20. Montada, L., Schmitt, M., & Dalbert, C. (1986) Thinking about justice and dealing with one's own privileges: A study of existential guilt. In H. W. Bierhoff, R. L. Cohen, & J. Greenberg (Eds.), Justice in social relations (pp. 125-143). New York: Plenum. Pritchard, R. A. (1969) Equity theory: A review and critique. Organizational Behavior and Human Performance, 4, 75-94. Pritchard, R. D., Dunnette, M. D., & Jorgenson, D. 0. (1972) Effects of perceptions of equity and inequity on worker performance and satisfaction. Journal of Applied Psychol- ogy, 56, 75-94. Reis, H. T. (1986) Levels of interest in the study of interper- sonal justice. In H. W. Bierhoff, R. L. Cohen, & J. Greenberg (Eds.), Justice in social relations (pp. 187-209). New York: Plenum. Schwinger, T. (1980) Just allocations of goods: Decisions among three principles. In G. Mikula (Ed.), Justice and social interaction (pp. 95-125). New York: Springer-Verlag. Schwinger, T. (1986) The need principle of distributive justice. In H. W. Bierhoff, R. L. Cohen, & J. Greenberg (Eds.), Justice in social relations (pp. 211-225). New York: Plenum. Sheppard, B. H. (1984) Third party conflict intervention: A procedural framework. In B. M. Staw & L. L. Cummings (Eds.), Research in organizational behavior (Vol. 6, pp. 141-190). Greenwich, CT: JAI Press. 21 Sheppard, B. H. (1985) Justice is no simple matter: Case for elaborating our model of procedural fairness. Journal of Personality and Social Psychology, 49, 953-962. Sheppard, B. H., & Lewicki, R. J. (in press) Toward general principles of managerial fairness. Social Justice Review. Stouffer, S. A., Suchman, E. A., DeVinney, L. C., Star, S. A., & Williams, R. M., Jr. (1949) The American soldier: Adjust- ment during Army life (Vol. 1). Princeton, NJ: Princeton University Press. Thibaut, J., & Walker, L. (1975) Procedural justice: A psycho- logical analysis. Hillsdale, NJ: Erlbaum. Thibaut, J., & Walker, L. (1978) A theory of procedure. California Law Review, 66, 541-566. Tornblom, K.Y., & Jonsson, D.R. (1985) Subrules of the equal- ity and contribution principles: Their perceived fairness in distribution and retribution. Social Psychology Quarterly, 48, 249-261. Tyler, T. R., & Caine, A. (1981) The role of distributional and procedural fairness in the endorsement of formal leaders. Journal of Personality and Social Psychology, 41, 642-655. Tyler, T. R., & Folger, R. (1980) Distributional and procedural aspects of satisfaction with citizen-police encounters. Basic and Applied Social Psychology, 1, 281-292. Van Avermaet, E., McClintock, C., & Moskowitz, J. (1978) Alternative approaches to equity: Dissonance reduction, pro-social motivation and strategies accommodation. European Journal of Social Psychology, 8, 419-437. Walker, L., Lind, E. A., & Thibaut, J. (1979) The relation between procedural justice and distributive justice. Virginia Law Review, 65, 1401-1420. Walster, E., Berscheid, E., & Walster, G. W. (1 973) New direc- tions in equity research. Journal of Personality and Social Psychology, 25, 151-176. Walster, E., Walster, G. W., & Berscheid, E. (1978) Equity: Theory and research. Boston: Allyn & Bacon. Walton, R. W., & McKersie, R. B. (1965) A behavioral theory of labor negotiations. New York: McGraw-Hill. Weick, K. E. (1966) The concept of equity in the perception of pay. Administrative Science Quarterly, I1, 414-439. Weiner, N. (1980) Determinants and behavioral consequences of pay satisfaction: A comparison of two models. Personnel Psychology, 33, 741-757. Jerald Greenberg (Ph.D., Wayne State University) is Associate Professor of Management and Human Re- sources at Ohio State University. Correspondence regarding this article may be addressed to him at: Faculty of Management and Human Resources, Ohio State University, 1775 College Road, Columbus, OH 43210-1399. 22 Article Contents p. 9 p. 10 p. 11 p. 12 p. 13 p. 14 p. 15 p. 16 p. 17 p. 18 p. 19 p. 20 p. 21 p. 22 Issue Table of Contents The Academy of Management Review, Vol. 12, No. 1 (Jan., 1987), pp. 1-216 Front Matter [pp. 1 - 8] A Taxonomy of Organizational Justice Theories [pp. 9 - 22] Expression of Emotion as Part of the Work Role [pp. 23 - 37] Are the Classical Management Functions Useful in Describing Managerial Work? [pp. 38 - 51] The Escalation Phenomenon Reconsidered: Decision Dilemmas or Decision Errors? [pp. 52 - 66] Corporate Strategy: Useful Perspective for the Study of Capital Structure? [pp. 67 - 75] Categorizing Strategic Issues: Links to Organizational Action [pp. 76 - 90] Strategic Control: A New Perspective [pp. 91 - 103] The Concept of Ideology in Organizational Analysis: The Sociology of Knowledge or the Social Psychology of Beliefs? [pp. 104 - 116] Congruence, Contingency, and Theory Building [pp. 117 - 132] Three Types of Perceived Uncertainty about the Environment: State, Effect, and Response Uncertainty [pp. 133 - 143] Political-Cultural Analysis of Organizations [pp. 144 - 156] The College Sophomore as Guinea Pig: Setting the Record Straight [pp. 157 - 159] Student Guinea Pigs: Porcine Predictors and Particularistic Phenomena [pp. 160 - 163] Book Reviews The "All Things in Moderation" Leader [pp. 164 - 169] untitled [pp. 169 - 171] untitled [pp. 171 - 172] untitled [pp. 172 - 175] untitled [pp. 175 - 177] Publications Received [pp. 178 - 180] Textbook Review Three Down-Loaded Mainframe Business Games: A Review [pp. 181 - 192] Back Matter [pp. 193 - 216] 
work_2gbv3mdbjvfczovo5kok6x7zvq	----	UAR301790.qxd Minority Empowerment and Environmental Justice Stefanie Chambers Trinity College, Hartford, Connecticut In Hartford, Connecticut, environmental health problems disproportionately affect poor and minority residents of the city. Minority group activists in Hartford have created a multiracial organization composed of urban and sub- urban residents to fight for environmental justice. The organization has achieved a measure of success in terms of governmental responsiveness to their concerns. This article highlights the strategies used by the organization to advance its interests. These strategies are framed within the minority empowerment and environmental justice literature to develop a theoretical explanation for the organization’s success. Additionally, this article provides a model for other communities fighting for environmental justice. Keywords: environmental justice; minority empowerment; public health The Hartford Environmental Justice Network (HEJN) is an organizationcomprised largely of minorities from impoverished neighborhoods in Hartford, Connecticut. The initial formation of HEJN stemmed from com- munity concerns about the negative effects of industrial facilities sited near residential areas. An additional catalyst and a continuing focus for the orga- nization is the perception that racial minorities and low-income residents of Hartford are disproportionately burdened by the negative environmental and health consequences of industrial facilities. Today, the organization includes approximately 1,800 individual grassroots members as well as approximately 30 member organizations. HEJN is now a powerful and active organization that has attracted the attention and respect of other stakeholders including local, state, and federal government officials. Through an examination of HEJN’s organizational structure and strate- gies, this article presents a case study of a successful minority-led, yet mul- tiracial environmental organization. Success is operationalized in this study as the organization’s ability to achieve a response by public officials to the issues on HEJN’s agenda. A key determinant of success is the ability of the Urban Affairs Review Volume 43 Number 1 September 2007 28-54 © 2007 Sage Publications 10.1177/1078087407301790 http://uar.sagepub.com hosted at http://online.sagepub.com 28 Author’s Note: I would like to thank Diana Evans, Jerry Watts, the UAR editors, and several anonymous reviewers for their helpful comments. distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com group to maintain an ongoing organizational structure that continuously pushes for environmental policies that benefit the community. To accom- plish this, the group utilizes a combination of strategies including main- taining a racially and ethnically diverse membership, providing members with technical training, building coalitions with existing community orga- nizations in the Greater Hartford area, fostering leadership skills among members, and moving toward institutionalized forms of political participa- tion now that they are viewed as legitimate actors in the policy arena. These tactics have not only made HEJN effective, but have also mobilized members in unique ways and led to considerable minority empowerment. By examining the organizational structure and strategies of a multiracial environmental justice group, this case study builds upon the minority empowerment and environmental justice literature by providing a model of a stable multiracial coalition that achieves policy responsiveness. In the sections that follow, I first present an overview of the relevant environmental justice and minority empowerment literature. The next sec- tion provides an overview of Hartford demographics and the environmen- tal challenges faced by the greater Hartford region. I then discuss the creation of HEJN and their policy focus, followed by a section on the pol- icy responsiveness achieved by the organization. Next, I outline the organi- zational strategy used by the organization to maintain sustained mobilization. The final section reconnects the environmental justice and minority empow- erment literature to the HEJN model: a sustained multiracial coalition in the environmental justice policy arena. Literature Review: Environmental Justice and Minority Empowerment Scholars of minority empowerment examine the ways in which minor- ity political participation can become more effective and institutionalized (Bobo and Gilliam 1990; Browning, Marshall, and Tabb 1984, 2003; Eisinger 1982; Fung 2004). However, most of the minority empowerment literature focuses on protest and electoral strategies that contribute to the political incorporation of minorities into the political structures of their communities. Environmental justice groups, by contrast, are concerned with electoral outcomes as a strategy for affecting environmental policy. Although they frequently participate in protest activities to advance their short-term agenda, their larger goals are more comprehensive: They seek to influence the policy process long-term and overcome their own marginaliza- tion in the political system. This study explores the nonelectoral strategies Chambers / Minority Empowerment and Environmental Justice 29 distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com and organizational structure of a multiracial environmental justice organi- zation to gain insight into how such organizations can maintain coalitional stability and achieve long-term policy goals. Neither the minority empow- erment nor the environmental justice literature indicates how these things could occur. Examining HEJN in this light provides instructive findings for similar organizations and makes an important contribution to these two bodies of scholarship. The environmental justice literature offers many examples of successful struggles for environmental justice by poor people and minorities (Bullard 1993, 1994, 2000; Bullard and Johnson 2000; Capek 1993; Checker 2001; Mohai and Bryant 1992; Taylor 1995). Survey research documents the fact that Blacks (and other minority groups) share with Whites a deep concern about the environment (Bullard, Warren, and Johnson 2001; Jones 1998; Taylor 1989; Mohai 2003). The only difference is that Blacks express greater concern with pollution in neighborhoods and other aspects of local environmental quality. It is this difference that makes Blacks more likely to engage in the environmental justice movement. Although the environmental justice scholarship is best known for provid- ing case studies of specific mobilization by coalitions that rise and fall with a given issue, there are also theoretical models for ongoing environmental jus- tice activism within this research. One case study, by anthropologist Melissa Checker (2001), examines how a multiethnic group in Brooklyn, New York, mobilized around environmental justice in their city by creating a shared identity focused primarily on discrimination while retaining rich ethnic diver- sity among group members. In another theoretical model, Dorchetta Taylor (1989, 199) argues that to increase Black environmental activism, several pre- requisites must be met including group solidarity, resources (money, knowl- edge, morale), and psychological factors (ideology and discontent). Even with these important studies, it is unclear whether long-term environmental activism will occur or whether responsive governmental policies will result from this activism. Nevertheless, in commenting on the environmental justice literature, Robert Bullard (2000, 89) points out, “very little is known about . . . the factors that propel or impede Black mobilization against environmental threats.11 This article builds upon the existing literature by demonstrating how a multiracial environmental justice organization can maintain institutional stability, particularly by uniting city and suburban residents, to achieve policy objectives. Within the minority empowerment literature, Rufus P. Browning, Dale Rogers Marshall, and David H. Tabb (BMT) (1984) create a theoretical framework that is useful for examining how multiracial coalitions can 30 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 31 advance minority interests. In fact, their findings with regard to multiracial coalitions are relevant to the experiences of HEJN. The authors identify ways that minorities can become a significant political force and achieve substantive gains from local government. By examining the struggles for political access and responsive policies of minority groups in 10 California cities, they find that mobilization (protest, electoral participation, or a combination of the two) can lead to minority political incorporation in city government (elective or appointed positions), and ultimately policies that are responsive to minority concerns. However, policy responsiveness to the interests of the minority community is the ultimate measure of suc- cess because the minority community is affected by policy decisions. The authors also argue that biracial or multiracial coalitions are a way for Blacks and Latinos to gain political power provided that group resources and other conditions are favorable. These group resources and conditions include factors such as group size, concentration, cohesion, and organizational strength. BMT also argue that mobilization of resources alone is not usually enough to propel minority groups into political power, but that to achieve success, minorities need to acquire the support of other minorities and/or liberal Whites. In other words, biracial or multiracial coalitions are a way for Blacks and Latinos to gain political power and policy responsiveness. At the same time that BMT place emphasis on multiracial coalitions, other scholars argue that these coalitions frequently encounter problems in terms of coalitional stability (DeLeon 2003; Hero and Clarke 2003; Mollenkopf 2003; Orr 2003; Owens and Rich 2003; Perry 2003; Pinderhughes 2003). These coalitions are often short-lived; even in situations where minorities are able to elect minority mayors, the mayors often face fiscal situations that force them to turn their back on minority interests in favor of business interests. Furthermore, even in nonelectoral situations, multiracial coalitions are often limited because racial groups have different overall interests that frequently interfere with overarching and stable coalitions. Another relevant finding from the BMT framework is the idea that action by the federal government has the potential to enhance the impact of minority political empowerment (1984, 213). Specifically, BMT examined federal social programs from the 1960s aimed at eradicating poverty in urban areas. Minority respondents in their study indicated that these federal programs provided more opportunities for minority mobilization, minority incorporation in the policy process, and policies that reflected the interests of the minority populations. distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com The notion that federal intervention helps to advance the interests of minority groups is apparent if we look at both federal antipoverty programs and civil rights legislation, as do BMT. Action by the federal government is typically the result of intense pressure by the oppressed group. One need only to think of the civil rights movement and the enforcement of voting rights for an example. This is not to say that the federal government is always sympathetic to the situation of racial and ethnic minorities, but that social movements in the United States have frequently established the objective of changing federal policy to reach the ideals of democratic inclu- sion. At times, this has meant pushing for the fulfillment of constitutional rights such as the right to vote. At other times, it has meant convincing pol- icy makers to enact laws to guarantee equal treatment of an oppressed group. Executive orders and laws dealing with affirmative action or envi- ronmental equality fall under this category. Archon Fung (2004), another contributor to the minority empowerment literature, argues that democratic participation not only empowers minori- ties, but also makes public institutions more effective and capable of pro- ducing social change. More important, he believes that democracy requires individuals to “have substantial and equal opportunities to participate directly in decisions that affect them” (2004, 4). By examining the ways in which community members in several Chicago neighborhoods united to create more effective schools and to reduce crime, he demonstrates that when previously disempowered groups organize they can become players in the policy process and make municipal agencies more effective. His research also suggests that without the democratic empowerment of under- represented groups, municipal governments are less effective and useful for minorities. The common themes present in both the environmental justice and minority empowerment literature provide an ideal theoretical backdrop to an analysis of HEJN and the organization’s ability to create a sustainable and multiracial organization. Both bodies of scholarship discuss the impor- tance of group resources (such as size, cohesion, solidarity, organizational strength) and racial/ethnic diversity as factors for success. It is also clear that shared experiences, particularly as they relate to group marginalization, help mobilize groups to take action. At the same time that the literature in these fields provides some direction for organizational success, we are left with a dilemma: How can effective minority coalitions be sustained over time? This study presents the organizational strategies used by an environ- mental justice organization to create a sustained organization that achieves policy responsiveness.1 32 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Hartford: Diversity and Environmental Challenges Formerly known as the insurance capitol of the world, Hartford is attempt- ing to recast its image as “New England’s Rising Star.” Despite this slogan and some recent high-profile development projects in the core downtown area, the city continues to struggle. In 2002, the New York Times character- ized Hartford as “the most destitute 17 square miles in the nation’s wealthi- est state” because of racial isolation and poverty within Hartford as compared to the city’s suburbs (Zielbauer, 2002, A1). Since the late 1980s, this capitol city has struggled as insurance companies moved to suburbs or outside the state and as the region experienced a decline in defense industry production. Within the city’s 17.4 square miles there are approximately 121,000 resi- dents. For the past 40 years, the non-Hispanic White population in the city has been steadily decreasing. In the past decade, there has been a 50% decline among these residents. According to the 2000 U.S. Census, the largest racial/ethnic groups in the city are Hispanics (40%), followed by Blacks (38%). Interestingly, Hartford’s Hispanics are overwhelmingly Puerto Rican (80%), and among Blacks, one in four is of West Indian descent. Poverty has been a persistent problem in Hartford. In 1999, a staggering 31% of city residents lived in poverty for part of the year (Kuzyk 2003, 69). This figure makes Hartford the poorest city in the state. Another indicator of poverty is the percentage of students eligible for free school lunches. In 2002, 60.4% of Hartford’s public school students were eligible for this program, in comparison to 22% of students statewide.2 The 2000 U.S. Census reported the median household income in Hartford in 1999 at $24,829, which was approximately half of the median household income among the city’s inner ring suburbs. Hartford also has the lowest home ownership rate in the nation at 24.6%, compared to the statewide average of 67% (2000 U.S. Census). Hartford is not the only city in Connecticut facing challenges. The 2000 U.S. Census revealed that although the state is one of the wealthiest in the nation, it also includes some of the nation’s poorest cities such as Hartford, Bridgeport, New Haven, and Waterbury. At the same time, these impoverished cities are also home to the state’s most polluted sites. The toxics map in Figure 1 illustrates the strong relationship between minority communities and the location of toxic pollutants and waste in the state. Areas with the highest concentration of toxins happen to be located in Connecticut’s poorest cities where large numbers of minority residents live. These findings are not unusual. Many scholars have identi- fied a correlation between communities of color and the location of haz- ardous waste facilities (Bullard and Wright 1987; Myers 2004; Walker, Chambers / Minority Empowerment and Environmental Justice 33 distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com 34 Urban Affairs Review Mays, and Warren 2004; Wright 1998).3 Figure 1 also reflects the research by Timothy Black and John A. Stewart (2001) on the concentration of regional waste disposal incinerators and landfills in the state of Connecticut. Black and Stewart found that these facilities tend to be near neighborhoods with higher concentrations of poor and minority residents. In fact, when they controlled for other factors, race and ethnicity remained the single best predictor of siting decisions in the state. Although there has not been a comprehensive study of Hartford regard- ing whether minorities bear a disproportionate burden of environmental haz- ards, given the large number of minorities in the city and the numerous toxic industrial facilities located near predominately minority neighborhoods, it is quite likely that Hartford mirrors the findings of Black and Stewart. Indeed, the areas of Hartford with the greatest concentration of environmentally haz- ardous facilities are located within minority neighborhoods. These facilities Figure 1 Toxics Map Source: Department of Environmental Protection and 2000 U.S. Census distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 35 include a trash to energy plant and a regional landfill that serve the trash disposal needs of approximately 70 neighboring towns—most of which have far lower percentages of minority residents than does Hartford. HEJN: Origins and Policy Focus Mobilization of Hartford’s minority community around environmental justice began in the early 1990s when ONE CHANE, one of Hartford’s north end neighborhood organizations, initiated protests against a local landfill.4 This landfill is located in the north end of Hartford in a predomi- nately Black and impoverished neighborhood. It was not the fact that it was located in this community per se that convinced people to fight the landfill. Rather, it was the rising rate of health problems of local residents, who became convinced that there was a relationship between their declining health and the odors from the landfill. As one resident commented, The smell was awful. Birds were dropping from the sky and dogs were dying. People were getting sick. We knew it was from the landfill (activist interview, February 18, 2002). Concerned community members reported the situation to the city health department. The health commissioner at the time, an African-American public health physician named Mark Mitchell, became convinced that the gasses emitted from the landfill were related to the complaints of local res- idents. Dr. Mitchell explained: I started getting involved due to the complaints about the odors at the land- fill. The landfill operator, Connecticut Resources Recovery Authority (CRRA), and the DEP (Connecticut Department of Environmental Protection) were unresponsive. I knew that a well run landfill should not have odors and I knew that DEP and the city had enforcement power over the landfill (presi- dent of HEJN, interview, March 14, 2002). Dr. Mitchell merged his scientific training and his concern for the health of north Hartford residents with his understanding of the legal oversight of the landfill. Since 1987, the landfill has been operated by the CRRA, a quasi-governmental organization. The city’s contract with CRRA for trash disposal includes no date for the closure of the landfill, no requirements for negotiating trash disposal agreements with other cities and states, and vague language on the health and safety regulations for the landfill. As one distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com community activist explained, these made it impossible for local residents to influence a policy with enormous health ramifications, and prompted Dr. Mitchell to begin to address the problem (activist interview, March 14, 2002). Dr. Mitchell began to work closely with the minority community to pressure CRRA and the city of Hartford to hold CRRA more accountable for their practices; as a result, he was forced to resign in 1995 as the city’s health commissioner (activist interview, March 14, 2002; Hartford’s Environmental Public Health Educator, interview, April 22, 2002). Dr. Mitchell subsequently established Mitchell Health Consultants, an organization that wrote grants to fund local environmental justice efforts. ONE CHANE began working with Mitchell Health Consultants in 1995 to close the landfill. In 1995, ONE CHANE filed a federal lawsuit, claiming that the current landfill arrangements violated Title VI of the Civil Rights Act by virtue of the burden it placed on the minority community. That same year, ONE CHANE formed a coalition with the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund, the NRDC (Natural Resource Defense Council), and the Connecticut Fund for the Environment; the coalition accused CRRA of environmental racism as evidenced by the siting of environmentally risky facilities in predominately African-American communities (activist interview, February 22, 2002). As a result of mounting pressure, CRRA initiated a major cleanup effort of the landfill to eliminate odors and resolve the disputes that were beginning to tarnish its reputation. By the end of 1995 the organization had spent roughly $13 million to clean up the landfill (activist interview, February 20, 2002, b). In 1996, ONE CHANE and CRRA negotiated an agreement whereby ONE CHANE would stop protesting the landfill in exchange for the cleanup of the landfill.5 Members of ONE CHANE used traditional strategies and practices to protest the landfill. During 1995, members staged protests outside of CRRA’s headquarters, held marches that attracted media attention, and conducted door-to-door recruitment of neighborhood residents. Interestingly, the strategy adopted by ONE CHANE, with the help of Dr. Mitchell, was to emphasize the odors of the landfill as the primary focus of their protests. Many residents were concerned with increases in cancer and other health ailments. Because these health problems would have been difficult to link directly to the landfill, the odor issue was emphasized. This was a wise choice given that the odor issue was ultimately resolved.6 This choice also reflects the “symbolic framing” that Stella Capek (1993) identifies in her work as a key to environmental justice organizing among people who do not possess scientific knowledge. 36 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com In 1997, Dr. Mitchell founded the HEJN which adopted a broader agenda than that originally pursued by ONE CHANE.7 From its inception, this organization has been devoted to protecting urban environments in Connecticut through educating our community, through promoting changes in state policy, and through promoting individual, corporate, and governmental responsibility towards our environment (HEJN mission statement). Although one of the organization’s primary goals is improving air qual- ity in the city, it is also concerned with all siting decisions that place an undue burden on communities of color. The organization is composed of about 30 member organizations, has approximately 1,800 individual members, and is roughly 80% minority (president of HEJN, interview, March 14, 2002).8 Building coalitions between groups is common among environ- mental justice groups. HEJN followed this strategy by creating an initial organization and then tapping into existing organizations to recruit repre- sentatives from other groups. This method was used so that the original organization would possess the capacity to exist independently as it brought in new groups with a similar interest in environmental justice. HEJN relies on financial support from local and national foundations and small contri- butions from members. One noteworthy difference between HEJN and other multiracial environ- mental justice organizations is that the organization is not ad hoc. HEJN has been a sustained force in Hartford’s environmental justice activism since 1997. Other studies of multiracial environmental justice coalitions show that these organizations typically rise and fall around a particular issue (Capek 1993). Environmental justice scholars have documented the success of a multiracial environmental justice group in Alabama, which succeeded in closing down a hazardous waste landfill (Bailey and Faupel 1992). Mark Moberg (2001) also found that a different multiracial environmental justice organization in Mobile, Alabama, was able to prevent the construction of a hazardous phenol plant in the area. In that case, upper class Whites began working with African-Americans when their attempts to prevent the build- ing of the plant failed. As a secondary strategy, they decided to reach out to African-Americans so they could file an environmental racism claim. Again, the key to these and other studies of multiracial environmental justice orga- nizations is that they are frequently ad hoc groups in the sense that once the issue at hand is resolved, they dissolve. This is especially the case when the organization begins as a White-dominated organization, as seen Chambers / Minority Empowerment and Environmental Justice 37 distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com in the Mobile case. HEJN does not suffer from this weakness. On the con- trary, it has been able to maintain a solid minority base. Achieving Policy Responsiveness Like ONE CHANE, HEJN initially engaged in protest tactics to advance its interests. The use of slogans such as “Hartford is the region’s dumping ground” and “We have the highest rates of asthma” were utilized to raise awareness and interest in HEJN’s mission (activist interview, February 15, 2002). Protests have been staged outside of city council meetings to push for recognition of issues such as what has been called the “asthma emergency.” HEJN has also protested at landfills and at the headquarters of companies that are engaged in environmentally haz- ardous activities. Their use of semantics is similar to the original use of the term environmental racism by Dr. Ben Chavis of the United Church of Christ in 1987 (CRJ 1987). In both situations, the terminology res- onated with the public, who were then moved to action. However, HEJN quickly moved from traditional protest strategies to more institutionalized forms of political participation, including lobbying the city council and the Connecticut state legislature on issues dealing with Connecticut’s landfills, closing the coal-burning power plants in the state, and reducing diesel school bus emissions in the state. Electoral Strategy During interviews, HEJN members elaborated on the organization’s pri- mary accomplishments. One of the group’s earliest electoral accomplish- ments was its role in the 1999 election of Elizabeth Horton Sheff to the Hartford City Council. Horton Sheff, an African-American woman, was a Green Party representative with a strong commitment to environmental jus- tice.9 Members of HEJN reported that they actively participated in her cam- paign and ultimate election. Horton Sheff has been extraordinarily responsive to the interests of HEJN. Lobbying for Policy Change Another accomplishment was the “asthma emergency” declared by the city council in 2000. Members of HEJN lobbied members of the city coun- cil for roughly three years prior to this declaration. The asthma emergency 38 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 39 has raised awareness of the problem and contributed to the commitment on the part of the city’s health department to improve environmental quality and public health with regard to respiratory illness (activist interview, February 15, 2002). The election of Horton Sheff solidified the passage of the asthma emergency because she cosponsored the resolution on the city council (Hall 2000). In addition to lobbying for the asthma emergency, HEJN lobbied the city health department to hire an environmental health educator. In response, according to activist interviews, the city did so in 2000. The creation of this position was a milestone because it was the first time that the city had des- ignated a specific individual to deal with the issue of environmental justice for the people of Hartford (Hartford’s Environmental Public Health Educator, interview, April 22, 2002). In interviews, all members of HEJN reported a good working relationship with this city employee. The environmental health educator has been very responsive to the community and worked with community members to gain more political power in the city (activist interview, February 21, 2002). In 2000, the organization also succeeded in convincing the city council to reject a proposal that would have allowed a medical waste facility to locate in the city. Had the facility opened, the company would have shred- ded medical waste and sterilized the remaining waste, something that would have been hazardous to the health of city residents (Mason 2000). The success in preventing this facility from opening was the result of protests at the offices of the company that wanted to open the waste facil- ity and lobbying efforts with the city council (activist interview, February 15, 2002). Interestingly, Horton Sheff, the newly elected city council member, played a key role in this decision. Members of HEJN provided her with the necessary research to persuade a majority on the city council to change their minds and vote against permitting the medical waste facility to locate in Hartford (president of HEJN, interview, June 27, 2006). Finally, one of the most recent accomplishments according to members and nonmembers of HEJN, was the city’s 2002 agreement to renegotiate their contract with CRRA. HEJN members lobbied since the inception of the group to amend the contract with the landfill operator. Ultimately, in 2002, they pressured the city council to renegotiate their 1982 contract with CRRA, a contract that previously included no expiration date, as well as a gag rule on city employees (elected and appointed), which prevented them from opposing CRRA facilities and services (activist interview, March 14, 2002; activist interview, March 18, 2002). distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Statewide Focus The stability of the organization has allowed for it to expand its focus statewide. Efforts are now under way to improve environmental health in the state. The organization works effectively with the Connecticut legisla- ture and with bureaucratic agencies at the state and federal level, particu- larly the DEP and the U.S. Environmental Protection Agency (EPA). These activities are evidence that HEJN is an active and institutionalized player in the political and policy-making process. In partnership with activists from other Connecticut cities, HEJN is par- ticipating in the fight to shut down five power plants, known as the “filthy five,” located primarily in Connecticut’s poorest cities. During the time of this study, members of HEJN were lobbying state legislators around this issue and testifying at hearings about these power plants and the public health problems they cause. Another statewide issue, the campaign to reduce diesel emissions from school buses, is finally gaining momentum throughout Connecticut largely as a result of minority activists fighting for environmental justice in Hartford. The New England regional office of the EPA, the state Department of Health, and the Hartford Health Department are all persuaded that this is a pressing issue, at least in part because of HEJN’s lobbying and outreach (Connecticut’s Urban Program Manager, interview, April 22, 2002; Hartford Environmental Health Educator, inter- view, April 22, 2002). Organizational Strategy: A Formula for Effective and Sustained Mobilization Although HEJN has achieved some remarkable successes in the policy arena, perhaps its most important achievement to date has been the imple- mentation of an organizational strategy to overcome the substantial diffi- culties inherent in minority mobilization. The minority empowerment literature demonstrates that marginalized groups such as racial and ethnic minorities often experience numerous hurdles when trying to organize to influence the policy process (Bobo and Gilliam 1990; Browning, Marshall, and Tabb 1984, 2003; Eisinger 1982; Fung 2004). In the environmental context, Bullard (2000, 94) has observed that “the task of mobilizing local citizens on an environmental issue is enhanced when the community has the leadership, knowledge, tactical skills, and communication networks to challenge the system of domination, including giant corporations”. HEJN 40 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com demonstrates that effective organizational strategies can overcome a com- munity’s obstacles to facilitate mobilization. The following discussion identifies and examines HEJN’s key organizational strategies for mobiliz- ing a poor and undereducated minority constituency. Not only have these strategies led to mobilization of HEJN members, they have transformed the organization into a key stakeholder that has enjoyed significant successes in the policy-making arena. Racial/Ethnic Composition As noted in the minority empowerment and environmental justice litera- ture, racial/ethnic diversity is important for organizational success. HEJN was founded by minorities and continues to be minority led. Unlike many other multiethnic organizations, it has withstood changing organizational goals, and it attracts members from the greater Hartford area. The organiza- tion has succeeded in creating a multiracial and diverse membership base. For example, HEJN’s steering committee is 60% Black, 20% Latino, and 20% White. Seventy five percent of the steering committee members are also low-income individuals. Of the 50 people who regularly attend the organization’s monthly meetings, approximately 50% are White, 40% are Black, and 10% are Latino (president of HEJN, interview, December 10, 2004). Another important characteristic is the involvement of Whites in HEJN’s mostly minority coalition. Whites became involved for several rea- sons. First, traditional environmentalists are typically middle-class Whites who are broadly concerned with preservation of ecosystems and individual species, reduction of environmental harm caused by industrialization, and the protection of human health and aesthetic values. In contrast, environ- mental justice activists are concerned with discriminatory siting decisions that place an undue environmental burden on specific communities based on race, class, or some other distinguishing characteristic (Bullard 2000, 7).10 For some Whites who joined HEJN, the messages about environmental problems that disproportionately affected poor minorities in Hartford res- onated; thus they broadened their environmental activism beyond the tradi- tional sphere of the environmentalists. Other White members (reportedly the majority) are members of White suburban churches concerned about social justice (activist interview, February 15, 2002). HEJN’s goals and mission allow them to work locally on important issues related to social justice. For others, it is the fact that air quality is relevant to urban and suburban resi- dents. According to the work of Bullard, Rueben, and Johnson (2001), asthma and air quality are issues that make multiracial coalitions feasible Chambers / Minority Empowerment and Environmental Justice 41 distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com because the impact extends beyond poor and minority residential areas that are typically closer to pollution sources. Therefore, beyond broad environ- mental concerns and a commitment to social justice, White members have self-interest because pollution extends outside the city limits of Hartford. The guiding philosophy for HEJN is that as long as minorities remain the majority of the organization, minority members will have a sense of ownership and will help the organization flourish. Whereas firsthand expe- riences with environmental and health problems motivate many individuals to join HEJN, the organization strives to ensure that their participation will continue over the long term. As Dr. Mitchell explains: There is a formula that we use. One of the keys is that it [the organization] has to be minority led. It has to start off with a good minority base. And also, it has to have the staff resources. Low-income people generally need a lot more assistance with transportation, child care, with food. We opened a food bank here and we also have nice dinners at our monthly meetings. Some of the members tell me that the meal at the monthly meeting is the best meal their family has. We also arrange for child care during the meetings and for transportation. This is how we help to keep the organization minority based. (president of HEJN, interview, March 14, 2002). In contrast to HEJN’s strategies, a sister organization in New Haven, Connecticut emerged in 2001 as an attempt to spread the message about environmental justice statewide. A key difference is that the New Haven Branch was an existing organization that sought an affiliation with HEJN because of HEJN’s reputation as the leading environmental justice organi- zation in the state (president of HEJN, interview, June 27, 2006). Whereas the Hartford branch is minority founded and led, the New Haven organiza- tion was primarily middle class, White environmentalists; thus it has expe- rienced some noteworthy challenges. As Dr. Mitchell pointed out, The problem we’re having in New Haven is getting people of color to partic- ipate. It’s much easier to talk to people who already know about the issues. So, our base in New Haven is mainly middle-class Whites who belonged to other environmental organizations. When we started to point out urban issues, it was very easy for them to catch on and do the moving and shaking that needed to be done. We tried to form a minority-based group affiliated with the New Haven branch called “Concerned Parents for Environmental Justice.” We were only able to meet once a month and they needed a lot more educa- tion, support, practice, and guidance between meetings. We don’t have that kind of staff in New Haven and so that portion of the organization didn’t move forward (president of HEJN, interview, December 10, 2004). 42 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 43 Overall, Mitchell characterizes the New Haven branch as “not as friendly” to less educated, low-income people of color with limited access to technical information. Mitchell claims that because New Haven Branch members have constant access to technology (Internet), that they are far less patient regarding time-intensive training sessions. Many of the New Haven members conduct their own research and work independently (pres- ident of HEJN, interview, June 27, 2006). The Hartford Branch is able to attract members from the city and the surrounding suburbs, most of whom are White. Although there are exam- ples of multiracial groups focused on environmental justice, it is more common to find members living in the same neighborhood and forging multiracial coalitions based on a shared sense of discrimination (Checker 2001). HEJN is unique because the membership base is spread throughout the Greater Hartford area. Altogether, HEJN has been able to create a viable and stable multiracial organization. A support staff with the responsibility for general organiza- tion ensures that members’ needs are met so that they can participate con- sistently in the organization. These efforts enable HEJN to maintain its minority base and thus its permanence as an organization. Technical Training HEJN places great emphasis on the technical training and education of its members. This ongoing educational training is pursued by members and is critically important to the organization. Members are sophisticated in their understanding of the scientific aspects of environmental justice. This knowledge, along with their firsthand familiarity with environmental dis- parities, is a key component in their legitimacy among policy makers (Connecticut’s Urban Program Manager, interview, April 22, 2002). Despite the limited level of formal education among members, many members can thoroughly explain issues such as the effects of particulate matter from diesel emissions on respiratory illness, and the health impacts of dioxins and other toxic chemicals. As one member noted, Our people are very interested in learning very complex things, and they’ve been able to use their knowledge. At first the politicians wouldn’t listen to us at all. And then they’d say, “You’ve got these grandmothers talking this language that we don’t even understand so it must be something really important.” And whenever someone does research to find out if what we’re saying is true, they find out that it is true. And that’s very different from other groups. Members’ legitimacy and comfort are important. The politicians trust distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com 44 Urban Affairs Review what we say. It’s been amazing that people who are not even involved with our organization are getting our message and carrying it forward (activist interview, March 14, 2002). Knowledge regarding environmental pollutants and public health prob- lems enhances the ability of members to engage in highly organized commu- nity outreach. One HEJN member who represents a local parent organization in Hartford is a Jamaican immigrant. She explained: One of our greatest accomplishments is the level of education we have and our ability to educate the community on environmental issues (activist interview, February 22, 2002). HEJN members regularly conduct “Hartford Toxics Tours” for people in the community as a way of raising awareness about local sources of pollution. These tours include trips to solid waste incinerators, power plants, and landfills. The HEJN tour guides provide background informa- tion about each facility and how it affects the health of the community. The guides also discuss HEJN’s efforts to eliminate or clean up the facil- ities. An interesting characteristic of HEJN’s educational strategy is that members are instructed by the group’s president, Dr. Mitchell, and then teach others what they have learned. Dr. Mitchell is a public health physician who was trained at Johns Hopkins University. The fact that the group is self-reliant for its scientific education is distinctive. A different approach is followed by a Boston-based environmental justice organiza- tion, Alternatives for Community and Environment (ACE); that group, which is primarily focused on asthma prevention, forged a coalition with local universities for its scientific information (Brown et al. 2003). By contrast, HEJN had to develop its own group resources for technical and educational training. Interviews with HEJN activists indicate that in addition to the sophisti- cated technical knowledge possessed by many members, another factor in HEJN’s ability to accomplish its goals and appear credible to other stake- holders is the fact that several of its members have legal or political exper- tise. One of the founding members of the organization, Attorney Cynthia Jennings, is among the most active environmental justice attorneys in the state. Attorney Jennings was originally a member of ONE CHANE who decided to pursue a legal education to work for environmental justice (activist interview, February 22, 2002). Several suburban members of the organization have also provided political guidance to the group. According to one member, distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 45 We’ve been really fortunate because some of our White suburban members bring some political knowledge that’s very helpful. They’ve been wonderful about hanging back and letting members from Hartford take the lead (activist interview, February 15, 2002). According to members interviewed in this study, the scientific, legal, and political knowledge collectively possessed by members are key factors in the organization’s successes. In fact, it was reported in multiple interviews that the scientific knowledge that members possess has impressed policy makers, especially when members testify before the city council or the state legislature, and when they contact government agency stakeholders. The EPA has tagged HEJN as one of the two most active environmental justice organizations in New England (activist interview, March 14, 2002; Connecticut’s Urban Program Manager, interview, April 22, 2002). In inter- views, policy elites indicate that members are highly informed on public health matters. Their education has empowered them politically and pro- vided the skills to educate additional activists. From the successes at the local level noted earlier, to the move toward working on statewide initia- tives, to the recognition HEJN has received from government officials and organizations, there is considerable evidence that the organization is suc- ceeding in achieving substantive policy change and policies that are ulti- mately responsive to the minority community. In addition, as one HEJN member pointed out, For the most part, our members don’t have the money to make contributions to politicians. They aren’t friends with the governor. They don’t have the resources to hire lobbyists. But, they’ve learned how to work within the polit- ical system to get results. This is new for many members (activist interview, March 14, 2002). Given that environmental justice was not a major issue in Hartford prior to the early 1990s, the accomplishments since the inception of HEJN are considerable. Community Networking and Coalition Building A strategy HEJN employs is to reach out to preexisting nonenvironmental organizations, which is apparent in their extensive organizational member- ship list. Broadly centered on environmental justice concerns, HEJN unites approximately 30 grassroots, religious, and community organizations in distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com 46 Urban Affairs Review the city. To accomplish this, HEJN seeks out members of local organizations with a concern about environmental justice. As one member explained, We go and do outreach to other groups and instead of trying to snatch their leadership and take them from their organization to ours, we really look for the one person who may not be one of the most active leaders, but for whom asthma is a real touchstone. And we try to energize them at a higher level in their own organization through their action in ours (activist interview, February 15, 2002). The environmental representatives from the various community organi- zations regularly attend HEJN events. As Dr. Mitchell explained, “These environmental representatives are a source of direct communication between the member organizations and HEJN” (president of HEJN, interview, December 10, 2004). Interestingly, since the inception of HEJN, many of the member community organizations have created environmental positions on their boards of directors. Although there is no concrete evidence that HEJN is the cause of this trend, it is interesting that many of HEJN’s orga- nizations have created these posts after their members became involved with HEJN. The results of HEJN’s outreach efforts are apparent at their monthly meetings. Meetings begin with introductions of all those in attendance. During the time of this research project, meetings consistently included grassroots members of HEJN and representatives from 15 to 20 of its member organizations. The purpose of monthly meetings is to raise aware- ness of important environmental justice issues, to schedule subcommittee meetings, and to devise strategies to advance group interests. Many of Hartford’s senior citizens are the organization’s most active individual members. Many of these seniors are also members of grass- roots senior citizen organizations in Hartford. In addition, many other racially and ethnically based grassroots organizations are HEJN members. The Black church, a foundation of the civil rights movement, continues to be an important component of HEJN. However, the religious commu- nity in HEJN extends beyond the Black church, including members of several predominantly White suburban churches with highly educated members who have a commitment to environmental equality. Although White membership remains the minority of HEJN’s membership, the organization has achieved a level of success as a multiracial and multi- ethnic organization. distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 47 Leadership Development The importance of minority leadership has been documented in the minority politics literature (Tate 2004); however, the way to develop leaders remains an unanswered question. For communities of color, having repre- sentatives or leaders who share demographic experiences can contribute to political knowledge and greater satisfaction with their elected representa- tives (Tate 2004). As an African-American leader who shares similar pas- sions about social justice and the plight of minorities in Hartford, Mitchell embodies effective leadership. By using his scientific background, Mitchell educates HEJN members who use their newly acquired knowledge to become lay experts in their communities. One of HEJN’s long-standing goals is to empower members so that they may improve their local environment and increase opportunities in their own lives. Leadership training is a means to attain this goal. Monthly meet- ings serve as the primary place where this early leadership training begins. Members rotate as monthly meeting leaders, timekeepers, and reporters on the activities of member organizations and the government. This rotation of leadership has given members a wide range of leadership experience. Moreover, this has expanded members’ involvement in environmental jus- tice outside of the monthly meetings. In addition, the organization holds roughly five leadership development training sessions each year. Finally, the organization presents leadership awards to grassroots members who have shown exceptional leadership and commitment to the cause of envi- ronmental justice. Dr. Mitchell explained: Leadership development is something you really have to do in low-income communities. And it pays off. It’s amazing to see what these folks do once they’re empowered. They start going back to school, they start getting better jobs, doing things to continue to develop themselves and their children. (pres- ident of HEJN, interview, December 10, 2004). Bullard (2000) indicates that Black environmental justice activists often develop their decision-making skills in indigenous community institutions (94). Interestingly, HEJN is not reliant upon preexisting structures, such as other community organizations, for leadership. Rather, they take it upon themselves to train and cultivate a large and diverse group of members who have not acquired leadership skills elsewhere. Thus the organization uses a blend of leadership and technical training discussed earlier to improve the effectiveness of the organization itself and to expand opportunities for its members. In this way, they empower their own members to become the leaders within HEJN and other organizations. distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Ongoing Challenges Even with evidence of policy responsiveness on the part of public officials, HEJN faces many of the challenges associated with nonprofit, community organizations. According to Dr. Mitchell, the organization struggles to find resources. Retaining a staff, offering training sessions, writing reports, writ- ing grants, and educating the public are resource intensive. The majority of the organization’s funding comes from regional and national foundations. However, many of the available funding sources do not fund controversial organizations such as HEJN, particularly those that challenge the actions of public sector entities. Limited resources pose challenges in the face of a myriad of new and recurring issues that emerge every few months, such as the new negotiation with the trash authority. Finally, Dr. Mitchell also contends that the organization does not do a very good job of publi- cizing their major accomplishments, which probably limits HEJN’s ability to raise funds. Despite these areas of weakness, the organization has man- aged to achieve a measure of success on the issues they do pursue (presi- dent of HEJN, interview, June 27, 2006). HEJN’s Place in the Minority Empowerment and Environmental Justice Literature The minority empowerment literature offers some instructive perspec- tives on the organizational strategies embraced by HEJN. This literature addresses the challenges minorities often face in the political process and possible ways to overcome these hurdles. Emphasis is placed rather nar- rowly on protest and electoral strategies to increase minority incorporation in policy making. In addition, the scholars in this field have not specifically addressed the prerequisites for sustaining such coalitions. HEJN is multira- cial, has remained active over time, and has focused on a number of differ- ent environmental justice and health-related issues. Examining HEJN also demonstrates how an organization can use federal policy to advance its interests. HEJN has capitalized on federal policies enacted by the Clinton Administration to strengthen its case for public health disparities. The organization has also succeeded in increasing demo- cratic participation by bringing previously underrepresented groups to the policy-making table. Beyond the idealistic goal of full participation in a democracy, there is evidence that this involvement reflects a permanent shift in political participation for members of HEJN. 48 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 49 Multiracial Coalition with Minority Leadership Much of the previous empirical research finds that multiracial coalitions are difficult to maintain over time (DeLeon 2003; Hero and Clarke 2003; Mollenkopf 2003; Orr 2003; Owens and Rich 2003; Perry 2003; Pinderhughes 2003). However, as Bullard, Warren, and Johnson (2001) have indicated, air quality and other health-related issues that extend beyond poor and minority communities might be the policy area that unites geographically separated and racially diverse communities over the long-term because in many cases pollution knows no boundaries. In many ways, the shared health risks across geographic areas are a key component in HEJN’s multiracial coalition. In other policy arenas such as poverty policy, it is more difficult to keep a diverse coalition together because the policy only has an effect on the less empowered members of the coalition. Therefore, long-term multiracial coali- tions may be uniquely feasible in the environmental justice arena because the public health consequences are shared widely. In turn, sustained mobilization of the group contributes to its perceived legitimacy. This is especially evident in news stories from the Hartford Courant. Articles in the city’s major paper not only cover the issues HEJN supports and their activities, but integrate members’ perspectives when covering any issue the organization has adopted. This can be seen as increasing the visibility of the organization and the perception that the organization is a legitimate actor in local politics. HEJN’s enduring coali- tion has also led to the perception among policy makers that the organiza- tion and its 30-plus member organizations are a permanent force in the local environmental policy-making process (Connecticut’s Urban Program Manager, interview, April 22, 2002; Hartford’s Environmental Public Health Educator, interview, April 22, 2002). The findings of this case study demonstrate that policy responsiveness can occur without significant levels of minority incorporation in the formal polit- ical structure. The coalition in this study did not seek to take control of the formal operations of government, but to help create public policy that addresses the concerns of the minority community. Essentially, HEJN has made considerable strides to transcend its status as a second-tier player in the political process despite the fact that it does not follow an electoral strategy. Federal Policy The importance of federal involvement in policies of interest to minori- ties is reflected in the experiences of HEJN. The organization has capital- ized on the federal environmental policies implemented under the Clinton distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com 50 Urban Affairs Review Administration such as Executive Order 12898 and the Urban Environmental Initiative (UEI). This executive order requires all federal agencies to include the achievement of environmental justice as a part of their mission. Essentially, it gave environmental justice activists the legal backing they long desired. In addition to the executive order, in 1995 the Clinton Administration also launched UEI under the EPA in Region 1, New England (Urban Environmental Program11). This program is aimed at improving environmental and public health in Hartford, Providence, and Boston by working cooperatively with community organizations. Although these new policies were not often mentioned in interviews for this study, it is evident that they contribute to state and local governmental attention to environmental justice. It also seems that the executive order and UEI have made the government more receptive to environmental justice. This has undoubtedly enhanced the legitimacy of its dealings with the government. Increasing Democratic Participation As the organizational umbrella for minority mobilization around envi- ronmental justice issues in Hartford, HEJN is the major vehicle for demo- cratic participation in this important policy area. The organizational strategies embraced by HEJN and its resulting policy achievements have brought underrepresented groups to the governmental decision-making table. HEJN has raised the awareness of public health issues in the city, which has clearly made the government more responsive and effective in this policy area. The strategic efforts of HEJN to move from protest to insti- tutionalized participation have successfully advanced its concerns. In terms of the environmental justice literature, this case study offers a template for how minorities can affect the urban environmental policy process. HEJN’s organizational formula of maintaining a multiracial organi- zation, encouraging the policy training of its members, building coalitions with existing community organizations, engaging in leadership training, hav- ing a dynamic and scientifically trained leader, and moving from protest activities to institutionalized participation in local politics all contribute to its stability and success. These organizational strategies have led to sustained and effective minority involvement in environmental justice policy. The template that HEJN presents for creating a sustainable multiracial organization that achieves policy responsiveness is particularly useful for racial and ethnic minorities fighting for environmental equality in urban America. Environmental justice activists would be wise to consider the fac- tors leading to environmental justice success in Hartford as measured by distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 51 responsive policy making. Beyond environmental justice, this study presents a new approach to analyzing the potential for multiracial coalitions. Although environmental concerns might be different from other policy areas because the environment can negatively affect people regardless of race, ethnicity, or class, this case study sheds light on the circumstances for sustainable minority coalitions, the importance of developing minority leaders to guarantee that minority interests will be top priority for the coali- tion, and demonstrates how federal policy can be used to advance coali- tional interests. Finally, this study demonstrates how multiracial coalitions like HEJN may increase democratic participation in our political system. Notes 1. The research for this paper includes a thorough review of local newspapers and in- depth interviews with 11 community activists with ongoing commitments to environmental justice in Hartford. Most, but not all, are members of HEJN. I selected respondents by identi- fying some of the most active environmental justice community leaders from newspaper arti- cles on the issue and through participant observation at HEJN monthly meetings. Respondents were asked to identify others who have been active over time and when an individual was men- tioned by more than one respondent I tried to interview that person. Participant observation is also incorporated in this study. From November of 2001 through November of 2003, I regu- larly attended monthly meetings with the Hartford Environmental Justice Network (HEJN), attended state legislative hearings with HEJN members, attended grassroots planning sessions, and participated in tours of toxic sites conducted by members of the organization. I also inter- viewed a representative from the Hartford Department of Health and a representative from the Environmental Protection Agency in New England in order to include the perspective of elite policy makers. 2. http://www.csde.state.ct.us/public/der/ssp/dist0102/dist041.pdf 3. I created Figure 1 by combining 2000 U.S. Census tract information and the location of municipal solid waste facilities and other point source pollutants. 4. ONE CHANE was created in 1988 when two neighborhood organizations merged into one organization. ONE CHANE members are some of the poorest residents with limited options for political power or mobility (Simmons 1994, 21). 5. CRRA recently lost $220 million dollars to Enron when that corporation declared bankruptcy. The contract with Enron stated that Enron would purchase power from CRRA for 10 years in exchange for $220 million from CRRA. 6. Interviews with community activists revealed that some people believe that there might still be some health problems with the landfill despite the fact that the odors are gone. 7. In 1998, Dr. Mitchell also created the Connecticut Coalition of environmental Justice in an effort to unite more organizations in the state with concerns about environmental justice. 8. The list of member organizations: Organizational Members of Hartford Environmental Justice Network, First Baptist Church of West Hartford, Black Men’s Society, Inc., Building Parent Power, Capitol Region Conference of Churches, Christian Activities Council, Coalition to Strengthen the Sheldon/Charter Oak Neighborhood (CSS/CON), Connecticut Citizen distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com 52 Urban Affairs Review Action Group, Connecticut College Holleran Center for Community Action, Connecticut Council on Occupational Safety and Health (ConnectiCOSH), Connecticut Public Interest Research Group (CONNPIRG), Ecological Health Organization (ECHO), Endometriosis Association, Fair Haven Management Team Environmental Subcommittee, The Green Party—Hartford, Hartford Areas Rally Together (HART), Hartford Federation of Teachers, Healthy Homes Program/Lead Safe Houses, Hispanic Health Council, Institute for Community Research, Men’s Club of Hartford, North Hartford Seniors in Action, Organized Northeasterners/ Clay Hill and North End (ONE-CHANE), First Presbyterian Church of Hartford, South Arsenal Neighborhood Development (SAND), South End Neighborhood Action Project (SNAP), South End NRZ of Hartford, South End Residents and Merchants Inc. of East Hartford, Sierra Club—Hartford, Toxics Action Center, Urban League of Greater Hartford, Vecinos Unidos, Warriors for Real Welfare Reform, and Working Lands Alliance—Hartford Food System. 9. Horton Sheff left the Green Party in 2003 and is now a Democratic member of the city council. 10. Environmental justice is also commonly referred to as environmental discrimination and environmental racism. 11. Urban Environmental Program. http://www.epa.gov/region1/eco/uep/11 (accessed 1May 2005). References Bailey, C., and C. E. Faupel. 1992. Environmentalism and Civil Rights in Sumter County, Alabama. In Race and the incidence of environmental hazards, edited by P. Mohai, and B. Bryant, 140–152. Boulder: Westview Press. Black, T., and J. A. Stewart. 2001. Burning and burying in Connecticut: Are regional solutions to solid waste disposal equitable? The New England Journal of Public Policy 16:15–34. Bobo, L. D., and F. D. Gilliam. 1990. Race, sociopolitical participation and Black empowerment. American Political Science Review 84:379–393. Brown, P., B. Mayer, S. Zavestoski, T. Webke, and J. Mandelbaum. 2003. The health politics of asthma: Environmental justice and collective illness experience in the United States. Social Science and Medicine 57:453–464. Browning, R. P., D. R. Marshall, and D. H. Tabb. 1984. Protest is not enough. Berkeley: University of California Books. ———, eds. 2003. Racial politics in American cities. 3rd ed. New York: Longman. Bullard, R. D., ed. 1993. Confronting environmental racism. Boston: South End Press. ———. 1994. Unequal protection. San Francisco: Sierra Club Books. ———. 2000. Dumping in Dixie. 3rd ed. Boulder: Westview Press. Bullard, R. D., and G. S. Johnson. 2000. Environmental justice: Grassroots activism and its impact on public policy decision making. Journal of Social Issues 56 (3): 555–578. Bullard, R. D., R. C. Warren, and G. S. Johnson. 2001. The quest for environmental justice. In Health issues in the Black community. 2d ed., edited by R. L. Braithwaite and S. E. Taylor, 471–488. San Francisco: Jossey-Bass. Bullard, R. D., and B. H. Wright. 1987. Environmental racism and the politics of equity: Emergent trends in the Black community. Mid-American Review of Sociology 12 (2): 21–38. distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Chambers / Minority Empowerment and Environmental Justice 53 Capek, S. 1993. The environmental justice frame: A conceptual discussion and an application. Social Problems 40:5–24. Checker, M. 2001. “Like Nixon coming to China”: Finding common ground in a multi-ethnic coalition for environmental justice. Anthropological Quarterly 74 (3): 135–146. CRJ: Commission for Racial Justice, United Church of Christ. 1987. Toxic wastes and race in the United States: A national report on the racial and socioeconomic characteristics of communities with hazardous waste sites. New York: United Church of Christ. DeLeon, R. 2003. San Francisco: The politics of race, land use, and ideology. In Racial poli- tics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 167–196. New York: Longman. Eisinger, P. K. 1982. Black empowerment in municipal jobs: The impact of Black political power. American Political Science Review 76:380–392. Fung, A. 2004. Empowered participation. Princeton, NJ: Princeton Univ. Press. Hall, L. 2000. Residents call for city action on asthma. Hartford Courant, June 7, p. B1. HEJN Mission Statement. http:/www.environmental-justice.org/11 May 2005. Hero, R. E., and S. E. Clarke. 2003. Latinos, Blacks, and multiethnic politics in Denver: Realigning power and influence in the struggle for equality. In Racial politics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 309–328. New York: Longman. Jones, R. E. 1998. Black concern for the environment: Myth versus reality. Society and Natural Resources 11:209–228. Kuzyk, I. 2003. A Hartford primer and field guide. Hartford, CT: Trinity College. Mason, J. 2000. Group celebrates blocking of waste facility. Hartford Courant, February 11, p. B3. Myers, S. R. 2004. Public and environmental health concerns in the 21st century. Sustain: A Journal of Environmental and Sustainability Issues, Fall/Winter: 44–52. Moberg, M. 2001. Co-opting justice: transformation of a multiracial environmental coalition in southern Alabama. Human Organization 60 (2): 166–178. Mohai, P. 2003. African American concern for the environment. Environment 45 (5): 11–26. Mohai, P., and B. Bryant, eds. 1992. Race and the incidence of environmental hazards. Boulder: Westview Press. Mollenkopf, J. 2003. New York: Still the great anomaly. In Racial politics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 115–139. New York: Longman. Orr, M. 2003. The struggle for Black empowerment in Baltimore. In Racial politics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 255–274. New York: Longman. Owens, M. L., and W. J. Rich. 2003. Is strong incorporation enough? Black empowerment and the fate of Atlanta’s low-income Blacks. In Racial politics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 199–224. New York: Longman. Perry, H. L. 2003. The evolution and impact of biracial coalitions and Black mayors in Birmingham and New Orleans. In Racial politics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 227–252. New York: Longman. Pinderhughes, D. 2003. Chicago politics: Political incorporation and restoration. In Racial politics in American cities, 3rd ed., edited by R. P. Browning, D. R. Marshall, and D. H. Tabb, 143–163. New York: Longman. Simmons, L. B. 1994. Organizing in hard times. Philadelphia: Temple. Tate, K. 2004. Black faces in the mirror. Princeton, NJ: Princeton Univ. Press. distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com Taylor, B. R. 1995. Ecological resistance movements. Albany: State Univ. of New York Press. Taylor, D. E. 1989. Blacks and the environment: Toward an explanation of the Concern and action gap between Blacks and Whites. Environment and Behavior 21 (2): 175–205. Walker, B., V. M. Mays, and R. Warren. 2004. The Changing landscape for the elimination of racial/ethnic health status disparities. Journal of Health Care for the Poor and Underserved 15:506–521. Wright, B. 1998. Endangered communities: The struggle for environmental justice in the Louisiana chemical corridor. Journal of Public Management and Social Policy 4 (2): 181–191. Zielbauer, P. 2002. Poverty in a land of plenty: Can Hartford ever recover. New York Times, August 26, p. A1. Stefanie Chambers is an associate professor at Trinity College in Hartford, Connecticut. She earned her PhD from Ohio State University in 1999. Her research interests include urban politics, environmental justice, urban education policy, and racial and ethnic politics. She is the author of Mayors and Schools: Minority Voices and Democratic Tensions in Urban Education, Temple University Press. Her research also appears in Political Science Quarterly, The New England Journal of Political Science, and Mayors in the Middle (Princeton University Press; Henig and Rich, eds.). 54 Urban Affairs Review distribution. © 2007 SAGE Publications. All rights reserved. Not for commercial use or unauthorized at SUNY AT BUFFALO on August 27, 2007 http://uar.sagepub.comDownloaded from http://uar.sagepub.com << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams false /MaxSubsetPct 100 /Optimize false /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveEPSInfo true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true /ACaslon-Ornaments /AGaramond-BoldScaps /AGaramond-Italic /AGaramond-Regular /AGaramond-RomanScaps /AGaramond-Semibold /AGaramond-SemiboldItalic /AGar-Special /AkzidenzGroteskBE-Bold /AkzidenzGroteskBE-BoldIt /AkzidenzGroteskBE-It /AkzidenzGroteskBE-Light /AkzidenzGroteskBE-LightOsF /AkzidenzGroteskBE-Md /AkzidenzGroteskBE-MdIt /AkzidenzGroteskBE-Regular /AkzidenzGroteskBE-Super /AlbertusMT /AlbertusMT-Italic /AlbertusMT-Light /Aldine401BT-BoldA /Aldine401BT-BoldItalicA /Aldine401BT-ItalicA /Aldine401BT-RomanA /Aldine401BTSPL-RomanA /Aldine721BT-Bold /Aldine721BT-BoldItalic /Aldine721BT-Italic /Aldine721BT-Light /Aldine721BT-LightItalic /Aldine721BT-Roman /Aldus-Italic /Aldus-Roman /AlternateGothicNo2BT-Regular /Anna /AntiqueOlive-Bold /AntiqueOlive-Compact /AntiqueOlive-Italic /AntiqueOlive-Roman /Arcadia /Arcadia-A /Arkona-Medium /Arkona-Regular /AssemblyLightSSK /AvantGarde-Book /AvantGarde-BookOblique /AvantGarde-Demi /AvantGarde-DemiOblique /BakerSignetBT-Roman /BaskervilleBE-Italic /BaskervilleBE-Medium /BaskervilleBE-MediumItalic /BaskervilleBE-Regular /BaskervilleBook-Italic /BaskervilleBook-MedItalic /BaskervilleBook-Medium /BaskervilleBook-Regular /BaskervilleBT-Bold /BaskervilleBT-BoldItalic /BaskervilleBT-Italic /BaskervilleBT-Roman /BaskervilleMT /BaskervilleMT-Bold /BaskervilleMT-BoldItalic /BaskervilleMT-Italic /BaskervilleMT-SemiBold /BaskervilleMT-SemiBoldItalic /BaskervilleNo2BT-Bold /BaskervilleNo2BT-BoldItalic /BaskervilleNo2BT-Italic /BaskervilleNo2BT-Roman /Bauhaus-Bold /Bauhaus-Demi /Bauhaus-Heavy /BauhausITCbyBT-Bold /BauhausITCbyBT-Medium /Bauhaus-Light /Bauhaus-Medium /BellCentennial-Address /BellGothic-Black /BellGothic-Bold /Bell-GothicBoldItalicBT /BellGothicBT-Bold /BellGothicBT-Roman /BellGothic-Light /Bembo /Bembo-Bold /Bembo-BoldExpert /Bembo-BoldItalic /Bembo-BoldItalicExpert /Bembo-Expert /Bembo-ExtraBoldItalic /Bembo-Italic /Bembo-ItalicExpert /Bembo-Semibold /Bembo-SemiboldItalic /Berkeley-Black /Berkeley-BlackItalic /Berkeley-Bold /Berkeley-BoldItalic /Berkeley-Book /Berkeley-BookItalic /Berkeley-Italic /Berkeley-Medium /Berling-Bold /Berling-BoldItalic /Berling-Italic /Berling-Roman /BernhardModernBT-Bold /BernhardModernBT-BoldItalic /BernhardModernBT-Italic /BernhardModernBT-Roman /Bodoni /Bodoni-Bold /Bodoni-BoldItalic /Bodoni-Italic /Bodoni-Poster /Bodoni-PosterCompressed /Bookman-Demi /Bookman-DemiItalic /Bookman-Light /Bookman-LightItalic /Boton-Italic /Boton-Medium /Boton-MediumItalic /Boton-Regular /Boulevard /BremenBT-Black /BremenBT-Bold /CaflischScript-Bold /CaflischScript-Regular /Carta /Caslon224ITCbyBT-Bold /Caslon224ITCbyBT-BoldItalic /Caslon224ITCbyBT-Book /Caslon224ITCbyBT-BookItalic /Caslon540BT-Italic /Caslon540BT-Roman /CaslonBT-Bold /CaslonBT-BoldItalic /CaslonTwoTwentyFour-Black /CaslonTwoTwentyFour-BlackIt /CaslonTwoTwentyFour-Bold /CaslonTwoTwentyFour-BoldIt /CaslonTwoTwentyFour-Book /CaslonTwoTwentyFour-BookIt /CaslonTwoTwentyFour-Medium /CaslonTwoTwentyFour-MediumIt /CastleT-Bold /CastleT-Book /Caxton-Bold /Caxton-BoldItalic /Caxton-Book /Caxton-BookItalic /Caxton-Light /Caxton-LightItalic /CelestiaAntiqua-Ornaments /Centennial-BlackItalicOsF /Centennial-BlackOsF /Centennial-BoldItalicOsF /Centennial-BoldOsF /Centennial-ItalicOsF /Centennial-LightItalicOsF /Centennial-LightSC /Centennial-RomanSC /CenturyOldStyle-Bold /CenturyOldStyle-Italic /CenturyOldStyle-Regular /CheltenhamBT-Bold /CheltenhamBT-BoldItalic /CheltenhamBT-Italic /CheltenhamBT-Roman /Christiana-Bold /Christiana-BoldItalic /Christiana-Italic /Christiana-Medium /Christiana-MediumItalic /Christiana-Regular /Christiana-RegularExpert /Christiana-RegularSC /Clarendon /Clarendon-Bold /Clarendon-Light /ClassicalGaramondBT-Bold /ClassicalGaramondBT-BoldItalic /ClassicalGaramondBT-Italic /ClassicalGaramondBT-Roman /CMTI10 /CommonBullets /ConduitITC-Bold /ConduitITC-BoldItalic /ConduitITC-Light /ConduitITC-LightItalic /ConduitITC-Medium /ConduitITC-MediumItalic /CooperBlack /CooperBlack-Italic /CopperplateGothicBT-Bold /CopperplateGothicBT-BoldCond /CopperplateGothicBT-Heavy /CopperplateGothicBT-Roman /CopperplateGothicBT-RomanCond /Copperplate-ThirtyThreeBC /Copperplate-ThirtyTwoBC /Coronet-Regular /Courier /Courier-Bold /Courier-BoldOblique /Courier-Oblique /Critter /CS-Special-font /DextorD /DextorOutD /DidotLH-OrnamentsOne /DidotLH-OrnamentsTwo /DINEngschrift /DINEngschrift-Alternate /DINMittelschrift /DINMittelschrift-Alternate /DINNeuzeitGrotesk-BoldCond /DINNeuzeitGrotesk-Light /Dom-CasItalic /Dom-CasualBT /Ehrhard-Italic /Ehrhard-Regular /EhrhardSemi-Italic /EhrhardtMT /EhrhardtMT-Italic /EhrhardtMT-SemiBold /EhrhardtMT-SemiBoldItalic /EhrharSemi /ElectraLH-Bold /ElectraLH-BoldCursive /ElectraLH-Cursive /ElectraLH-Regular /EnglischeSchT-Bold /EnglischeSchT-Regu /ErasContour /ErasITCbyBT-Bold /ErasITCbyBT-Book /ErasITCbyBT-Demi /ErasITCbyBT-Light /ErasITCbyBT-Medium /ErasITCbyBT-Ultra /EUEX10 /EUFB10 /EUFB5 /EUFB7 /EUFM10 /EUFM5 /EUFM7 /EURB10 /EURB5 /EURB7 /EURM10 /EURM5 /EURM7 /EuropeanPi-Four /EuropeanPi-One /EuropeanPi-Three /EuropeanPi-Two /Eurostile /Eurostile-Bold /Eurostile-BoldExtendedTwo /Eurostile-ExtendedTwo /EUSB10 /EUSB5 /EUSB7 /EUSM10 /EUSM5 /EUSM7 /ExPonto-Regular /Fenice-Bold /Fenice-BoldOblique /FeniceITCbyBT-Bold /FeniceITCbyBT-BoldItalic /FeniceITCbyBT-Regular /FeniceITCbyBT-RegularItalic /Fenice-Light /Fenice-LightOblique /Fenice-Regular /Fenice-RegularOblique /Fenice-Ultra /Fenice-UltraOblique /FlashD-Ligh /Folio-Bold /Folio-BoldCondensed /Folio-ExtraBold /Folio-Light /Folio-Medium /FontanaNDEeOsF /FontanaNDEeOsF-Semibold /FormalScript421BT-Regular /Formata-Bold /Formata-MediumCondensed /FournierMT-Ornaments /FrakturBT-Regular /FranklinGothic-Book /FranklinGothic-BookItal /FranklinGothic-BookOblique /FranklinGothic-Condensed /FranklinGothic-Demi /FranklinGothic-DemiItal /FranklinGothic-DemiOblique /FranklinGothic-Heavy /FranklinGothic-HeavyItal /FranklinGothic-HeavyOblique /FranklinGothic-Medium /FranklinGothic-MediumItal /FranklinGothic-Roman /FrizQuadrataITCbyBT-Bold /FrizQuadrataITCbyBT-Roman /Frutiger-Black /Frutiger-BlackCn /Frutiger-BlackItalic /Frutiger-Bold /Frutiger-BoldCn /Frutiger-BoldItalic /Frutiger-Cn /Frutiger-ExtraBlackCn /Frutiger-Italic /Frutiger-Light /Frutiger-LightCn /Frutiger-LightItalic /Frutiger-Roman /Frutiger-UltraBlack /Futura /FuturaBlackBT-Regular /Futura-Bold /Futura-BoldOblique /Futura-Book /Futura-BookOblique /FuturaBT-Bold /FuturaBT-BoldCondensed /FuturaBT-BoldCondensedItalic /FuturaBT-BoldItalic /FuturaBT-Book /FuturaBT-BookItalic /FuturaBT-ExtraBlack /FuturaBT-ExtraBlackCondensed /FuturaBT-ExtraBlackCondItalic /FuturaBT-ExtraBlackItalic /FuturaBT-Heavy /FuturaBT-HeavyItalic /FuturaBT-Light /FuturaBT-LightCondensed /FuturaBT-LightItalic /FuturaBT-Medium /FuturaBT-MediumCondensed /FuturaBT-MediumItalic /Futura-ExtraBold /Futura-ExtraBoldOblique /Futura-Heavy /Futura-HeavyOblique /Futura-Light /Futura-LightOblique /Futura-Oblique /GalliardITCbyBT-Italic /GalliardITCbyBT-Roman /Garamond-Antiqua /Garamond-BoldCondensed /Garamond-BoldCondensedItalic /Garamond-BookCondensed /Garamond-BookCondensedItalic /Garamond-Halbfett /GaramondITCbyBT-Bold /GaramondITCbyBT-BoldCondensed /GaramondITCbyBT-BoldCondItalic /GaramondITCbyBT-BoldItalic /GaramondITCbyBT-BoldNarrow /GaramondITCbyBT-BoldNarrowItal /GaramondITCbyBT-Book /GaramondITCbyBT-BookCondensed /GaramondITCbyBT-BookCondItalic /GaramondITCbyBT-BookItalic /GaramondITCbyBT-Light /GaramondITCbyBT-LightCondensed /GaramondITCbyBT-LightCondItalic /GaramondITCbyBT-LightItalic /GaramondITCbyBT-LightNarrow /GaramondITCbyBT-LightNarrowItal /GaramondITCbyBT-Ultra /GaramondITCbyBT-UltraCondensed /GaramondITCbyBT-UltraCondItalic /GaramondITCbyBT-UltraItalic /Garamond-Kursiv /Garamond-KursivHalbfett /Garamond-LightCondensed /Garamond-LightCondensedItalic /GaramondThree /GaramondThree-Bold /GaramondThree-BoldItalic /GaramondThree-Italic /GaramondThreeSMSspl /GaramondThreespl /GaramondThreeSpl-Bold /GaramondThreeSpl-Italic /GarthGraphic /GarthGraphic-Black /GarthGraphic-Bold /GarthGraphic-BoldCondensed /GarthGraphic-BoldItalic /GarthGraphic-Condensed /GarthGraphic-ExtraBold /GarthGraphic-Italic /Geometric231BT-HeavyC /GeometricSlab712BT-BoldA /GeometricSlab712BT-ExtraBoldA /GeometricSlab712BT-LightA /GeometricSlab712BT-LightItalicA /GeometricSlab712BT-MediumA /GeometricSlab712BT-MediumItalA /Giddyup /Giddyup-Thangs /GillSans /GillSans-Bold /GillSans-BoldCondensed /GillSans-BoldItalic /GillSans-Condensed /GillSans-ExtraBold /GillSans-Italic /GillSans-Light /GillSans-LightItalic /GillSans-UltraBold /GillSans-UltraBoldCondensed /Gill-Special /Giovanni-Bold /Giovanni-BoldItalic /Giovanni-Book /Giovanni-BookItalic /Glypha /Glypha-Bold /Glypha-BoldOblique /Glypha-Oblique /Goudy /Goudy-Bold /Goudy-BoldItalic /Goudy-ExtraBold /Goudy-Italic /GoudyOldStyleBT-Bold /GoudyOldStyleBT-BoldItalic /GoudyOldStyleBT-ExtraBold /GoudyOldStyleBT-Italic /GoudyOldStyleBT-Roman /GoudySans-Bold /GoudySans-BoldItalic /GoudySansITCbyBT-Bold /GoudySansITCbyBT-BoldItalic /GoudySansITCbyBT-Medium /GoudySansITCbyBT-MediumItalic /GoudySans-Medium /GoudySans-MediumItalic /Granjon /Granjon-Bold /Granjon-BoldOsF /Granjon-Italic /Granjon-ItalicOsF /Granjon-SC /GreymantleMVB-Ornaments /Helvetica /Helvetica-Black /Helvetica-BlackOblique /Helvetica-Black-SemiBold /Helvetica-Bold /Helvetica-BoldOblique /Helvetica-Condensed /Helvetica-Condensed-Black /Helvetica-Condensed-BlackObl /Helvetica-Condensed-Bold /Helvetica-Condensed-BoldObl /Helvetica-Condensed-Light /Helvetica-Condensed-LightObl /Helvetica-Condensed-Oblique /Helvetica-Light /Helvetica-LightOblique /Helvetica-Narrow /Helvetica-Narrow-Bold /Helvetica-Narrow-BoldOblique /Helvetica-Narrow-Oblique /HelveticaNeue-BlackCond /HelveticaNeue-BlackCondObl /HelveticaNeue-Bold /HelveticaNeue-BoldCond /HelveticaNeue-BoldCondObl /HelveticaNeue-BoldExt /HelveticaNeue-BoldExtObl /HelveticaNeue-BoldItalic /HelveticaNeue-Condensed /HelveticaNeue-CondensedObl /HelveticaNeue-ExtBlackCond /HelveticaNeue-ExtBlackCondObl /HelveticaNeue-Extended /HelveticaNeue-ExtendedObl /HelveticaNeue-Heavy /HelveticaNeue-HeavyCond /HelveticaNeue-HeavyCondObl /HelveticaNeue-HeavyExt /HelveticaNeue-HeavyExtObl /HelveticaNeue-HeavyItalic /HelveticaNeue-Italic /HelveticaNeue-Light /HelveticaNeue-LightCond /HelveticaNeue-LightCondObl /HelveticaNeue-LightItalic /HelveticaNeueLTStd-Md /HelveticaNeueLTStd-MdIt /HelveticaNeue-Medium /HelveticaNeue-MediumCond /HelveticaNeue-MediumCondObl /HelveticaNeue-MediumExt /HelveticaNeue-MediumExtObl /HelveticaNeue-MediumItalic /HelveticaNeue-Roman /HelveticaNeue-ThinCond /HelveticaNeue-ThinCondObl /HelveticaNeue-UltraLigCond /HelveticaNeue-UltraLigCondObl /Helvetica-Oblique /HelvLight /Humanist521BT-Bold /Humanist521BT-BoldCondensed /Humanist521BT-BoldItalic /Humanist521BT-ExtraBold /Humanist521BT-Italic /Humanist521BT-Light /Humanist521BT-LightItalic /Humanist521BT-Roman /Humanist521BT-RomanCondensed /Humanist521BT-UltraBold /Humanist521BT-XtraBoldCondensed /Humanist777BT-BlackB /Humanist777BT-BlackItalicB /Humanist777BT-BoldB /Humanist777BT-BoldItalicB /Humanist777BT-ItalicB /Humanist777BT-LightB /Humanist777BT-LightItalicB /Humanist777BT-RomanB /ICMEX10 /ICMMI8 /ICMSY8 /ICMTT8 /ILASY8 /ILCMSS8 /ILCMSSB8 /ILCMSSI8 /Imago-Book /Imago-BookItalic /Imago-ExtraBold /Imago-ExtraBoldItalic /Imago-Medium /Imago-MediumItalic /Industria-Inline /Industria-InlineA /Industria-Solid /Industria-SolidA /Insignia /Insignia-A /IPAExtras /IPAHighLow /IPAKiel /IPAKielSeven /IPAsans /JoannaMT /JoannaMT-Bold /JoannaMT-BoldItalic /JoannaMT-Italic /KlangMT /Kuenstler480BT-Black /Kuenstler480BT-Bold /Kuenstler480BT-BoldItalic /Kuenstler480BT-Italic /Kuenstler480BT-Roman /KunstlerschreibschD-Bold /KunstlerschreibschD-Medi /Lapidary333BT-Black /Lapidary333BT-Bold /Lapidary333BT-BoldItalic /Lapidary333BT-Italic /Lapidary333BT-Roman /LASY10 /LASY5 /LASY6 /LASY7 /LASY8 /LASY9 /LASYB10 /LatinMT-Condensed /LCIRCLE10 /LCIRCLEW10 /LCMSS8 /LCMSSB8 /LCMSSI8 /LDecorationPi-One /LDecorationPi-Two /Leawood-Black /Leawood-BlackItalic /Leawood-Bold /Leawood-BoldItalic /Leawood-Book /Leawood-BookItalic /Leawood-Medium /Leawood-MediumItalic /LegacySans-Bold /LegacySans-BoldItalic /LegacySans-Book /LegacySans-BookItalic /LegacySans-Medium /LegacySans-MediumItalic /LegacySans-Ultra /LegacySerif-Bold /LegacySerif-BoldItalic /LegacySerif-Book /LegacySerif-BookItalic /LegacySerif-Medium /LegacySerif-MediumItalic /LegacySerif-Ultra /LetterGothic /LetterGothic-Bold /LetterGothic-BoldSlanted /LetterGothic-Slanted /Life-Bold /Life-Italic /Life-Roman /LINE10 /LINEW10 /Lithos-Black /Lithos-Regular /LOGO10 /LOGO8 /LOGO9 /LOGOBF10 /LOGOSL10 /LOMD-Normal /LubalinGraph-Book /LubalinGraph-BookOblique /LubalinGraph-Demi /LubalinGraph-DemiOblique /LucidaMath-Symbol /LydianBT-Bold /LydianBT-BoldItalic /LydianBT-Italic /LydianBT-Roman /LydianCursiveBT-Regular /Marigold /MathematicalPi-Five /MathematicalPi-Four /MathematicalPi-One /MathematicalPi-Six /MathematicalPi-Three /MathematicalPi-Two /Melior /Melior-Bold /Melior-BoldItalic /Melior-Italic /MercuriusCT-Black /MercuriusCT-BlackItalic /MercuriusCT-Light /MercuriusCT-LightItalic /MercuriusCT-Medium /MercuriusCT-MediumItalic /MercuriusMT-BoldScript /Meridien-Medium /Meridien-MediumItalic /Meridien-Roman /Minion-Black /Minion-Bold /Minion-BoldCondensed /Minion-BoldCondensedItalic /Minion-BoldItalic /Minion-Condensed /Minion-CondensedItalic /MinionExp-Italic /MinionExp-Semibold /MinionExp-SemiboldItalic /Minion-Italic /Minion-Ornaments /Minion-Regular /Minion-Semibold /Minion-SemiboldItalic /MonaLisa-Recut /MSAM10 /MSAM10A /MSAM5 /MSAM6 /MSAM7 /MSAM8 /MSAM9 /MSBM10 /MSBM10A /MSBM5 /MSBM6 /MSBM7 /MSBM8 /MSBM9 /MTEX /MTEXB /MTEXH /MTGU /MTGUB /MTMI /MTMIB /MTMIH /MTMS /MTMSB /MTMUB /MTMUH /MTSY /MTSYB /MTSYH /MTSYN /MusicalSymbols-Normal /Myriad-Bold /Myriad-BoldItalic /Myriad-CnBold /Myriad-CnBoldItalic /Myriad-CnItalic /Myriad-CnSemibold /Myriad-CnSemiboldItalic /Myriad-Condensed /Myriad-Italic /Myriad-Roman /Myriad-Sketch /Myriad-Tilt /NeuzeitS-Book ] /NeverEmbed [ true ] /AntiAliasColorImages false /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox false /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /SyntheticBoldness 1.000000 /Description << /FRA <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> /JPN <FEFF3053306e8a2d5b9a306f30019ad889e350cf5ea6753b50cf3092542b308000200050004400460020658766f830924f5c62103059308b3068304d306b4f7f75283057307e30593002537052376642306e753b8cea3092670059279650306b4fdd306430533068304c3067304d307e305930023053306e8a2d5b9a30674f5c62103057305f00200050004400460020658766f8306f0020004100630072006f0062006100740020304a30883073002000520065006100640065007200200035002e003000204ee5964d30678868793a3067304d307e30593002> /DEU <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> /PTB <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> /DAN <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> /NLD <FEFF004700650062007200750069006b002000640065007a006500200069006e007300740065006c006c0069006e00670065006e0020006f006d0020005000440046002d0064006f00630075006d0065006e00740065006e0020007400650020006d0061006b0065006e0020006d00650074002000650065006e00200068006f0067006500720065002000610066006200650065006c00640069006e00670073007200650073006f006c007500740069006500200076006f006f0072002000650065006e0020006200650074006500720065002000610066006400720075006b006b00770061006c00690074006500690074002e0020004400650020005000440046002d0064006f00630075006d0065006e00740065006e0020006b0075006e006e0065006e00200077006f007200640065006e002000670065006f00700065006e00640020006d006500740020004100630072006f00620061007400200065006e002000520065006100640065007200200035002e003000200065006e00200068006f006700650072002e> /ESP <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> /SUO <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> /ITA <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> /NOR <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> /SVE <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> /ENU <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> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_2hllexfjwnfnjgz2xxs3j2i7ri	----	S0022381613000170 506..519 Compliance Bias and Environmental (In)Justice David M. Konisky Georgetown University Christopher Reenock Florida State University Scholarship on race- and class-based disparities in regulatory outcomes has failed to provide a theoretically grounded account of this bias’ origin. We address this shortcoming by providing a microlevel explanation of how demographics influence compliance bias or the failure to detect noncompliant firms. We argue that regulatory compliance is best understood as a dual-agent—firm and regulatory officer—production function, and that community mobilization and agency decision-making authority shape bureaucrats’ incentives to report non- compliance. We test our argument with an original dataset on community mobilization and agency structure that delineates the political costs and benefits of state regulatory officers implementing the U.S. Clean Air Act. Using detection-controlled estimation, we find that while certain communities are vulnerable to compliance bias, such bias is mitigated in the presence of either politically mobilized communities or decentralized enforcement authority within the implementing agency. E qual protection under the law is a fundamental principle of democratic public policy. When governments fail to treat citizens equally, the very legitimacy of democracy is threatened.1 Accord- ingly, the roots of equal protection extend deeply and broadly in the discipline. Scholars recognize its impor- tance as a key component of the rule of law and the civil liberties protected in society (Maravall and Przeworski 2003). Bureaucracy scholars refer to doctrines of admin- istrative fairness and representation (Meier 1993) and judicial scholars to impartiality and neutrality (Raz 1977). The core questions on equal protection turn on whether government is treating citizens differently, and, if so, what remedies might reduce such inequities? In approaching this question, scholars have inves- tigated policy domains that are ripe for violations of equal protection such as housing, pay, environment, education, and employment. Of these areas, environ- mental protection is particularly salient because of the potential for adverse public health effects. Advocates for ‘‘environmental justice’’ often allege that minority and low-income communities experience dispropor- tionate environmental hazards, in part, as a result of unequal enforcement of laws (e.g., Bryant 1995; Bullard, 1993; Bullard & Johnson 2000). Some recent research investigating these claims has found that governments conduct fewer inspections and impose fewer punitive sanctions when firms are located in poor and minority areas, but other work has identified few such disparities (Dion, Lanoie & Laplante 1998; Gray and Shadbegian 2004; Helland 1998b; Konisky 2009; Konisky and Schario 2010; Scholz and Wang 2006). Notwithstanding the mixed results, these studies share a common approach of establishing correlations between community demographics and regulatory enforcement outputs. However, while demonstrating these correlations helps to diagnose the presence of enforcement bias, prior research has not developed a strong theoretical account of the sources of this bias. Enforcement actions rely upon initial determinations of firm compliance, which are generally ascertained through government detection efforts. As a result, ob- served correlations between community demographics and enforcement actions may be either evidence of bias originating in an agency’s decision to take that action or evidence of bias originating in the initial compliance determination. Moreover, bias in regulatory outputs is generated from a process that involves the strategic interaction of both firms and regulatory officers. The Journal of Politics, Vol. 75, No. 2, April 2013, Pp. 506–519 doi:10.1017/S0022381613000170 � Southern Political Science Association, 2013 ISSN 0022-3816 1 An online appendix for this article is available at http://journals.cambridge.org/jop containing supplemental analyses. Data and supporting materials necessary to reproduce the numerical results in the article will be made available at http://mailer.fsu.edu/ ;creenock/ by January 2013. 506 Observed correlations between community demo- graphics and regulatory outputs may reflect a firm’s decision to be compliant, an officer’s decision to accurately identify noncompliant firms, or both. When studying regulatory outputs alone, these sources of bias are observationally equivalent. We believe a more productive path for revealing the sources of bias is to focus on compliance. Com- pliance is the foundation upon which other regulatory outputs are based, and for this reason, studying firm compliance is not vulnerable to the first problem noted above. In this sense, exploring environmental justice issues within a compliance framework high- lights the core process within which we believe bias is likely to originally arise.2 Second, while compliance does entail dual-agent (firm and officer) production, we can explicitly model each data-generating process, allowing us to determine if the bias originates with firms and/or regulators. In this article, we develop a novel theoretical account of compliance bias, or the systematic non- detection of violations, in the context of environmental justice. Building on past work (e.g., Feinstein 1990; Helland 1998a, 1998b; Scholz and Wang 2006), we argue that compliance bias is best characterized as a dual-agent production function of firms and regulatory officers. While pursuing different goals, both firms and bureaucrats attempt to minimize their costs. We argue that the costs associated with noncompliance (firms) and failure to detect noncompliance (bureaucrats) are lower in poor and minority communities because these communities have fewer resources with which to document and protest noncompliance. For this reason, firms in these areas are more likely to be noncompliant and less likely to be detected by regulatory officers. This dual-agent approach reveals two potential remedies for such bias. First, politically mobilized communities are better equipped to generate compli- ance costs for firms and political costs for bureaucrats, and, as a result, bias will diminish in poor and minority communities that have overcome the collective action problems necessary to exert political pressure. Second, we argue that high-level agency managers have a strong incentive to overreport compliance rates in order to craft positive impressions of agency performance. For this reason, they are more likely to engage in what we refer to as motivated, nondetection of compliance when a firm is located in a poor or minority area, since these communities have fewer political resources and are therefore less likely to discover the bureaucrat’s behavior. The empirical setting for our analysis is firm-level compliance with the federal Clean Air Act (CAA). Using an original dataset on both local mobilization and the decision-making authority of the state regu- latory officers largely responsible for implementing the CAA, we employ detection-controlled estimation (DCE) to model the effects of demographic character- istics on both individual firm and regulatory officer compliance decisions. We find that compliance bias is more likely in Hispanic (but, not in African American) communities, but that such bias is mitigated in the presence of either politically mobilized communities or decentralized enforcement authority. Our results sug- gest that compliance bias in policy implementation can be curbed not just by investing in the political capacity of communities but also by modifying agency decision- making structures. The article proceeds as follows. We begin by developing our theoretical expectations about the link- age between compliance bias and community demo- graphics. We then discuss our research design and explain the usefulness of using a DCE approach to test these expectations. Next we discuss our empirical analysis of compliance bias in the case of enforcement of the CAA and then conclude with a discussion of the implications. Theory and Hypotheses Models of regulatory compliance recognize two distinct processes: Firms make decisions over compliance, and regulatory officers make decisions over compliance determination. Strategic-deterrence models provide ba- sic expectations that are useful for our purposes. In such models, firms and bureaucrats base their behavior on an expected utility calculation in which each attempts to maximize their expected payoffs given their beliefs about the other’s action (Braithwaite and Makkai 1991; Scholz 1991; Winter and May 2001). Of the many outcomes of this strategic interaction, we are interested in features of the policy environment that may increase the potential for ‘‘opportunistic’’ behavior—that is, when firms pursue noncompliance based on their lower expectations of being caught and/or punished by regulatory officers. The end result of this outcome is undetected noncompliance—the object of our study. We assume that firms choose whether to remain in compliance or to violate the law. In making this choice, firms are interested in maximizing their individual profit at the lowest cost of compliance. 2 A few studies look at disparities in firm compliance with mixed findings (Earnhart 2004a, 2004b; Mennis 2005; Scholz and Wang 2006). compliance bias and environmental (in)justice 507 The expected costs of compliance are related to various features of the market and to policy and political factors that shape the consequences of noncompliant behavior. Expectations about the costs of compliance are also related to the detection efforts pursued by regulatory officers, and specifically, the likelihood that noncompliant behavior will not only be discovered but treated as violations. It is for this reason that one needs to conceptualize compliance outcomes as a dual-agent production function. When firms expect agency offi- cials to pursue less rigorous enforcement strategies, they have greater incentive to avoid full compliance. Alternatively, when firms believe that agency officials are more likely to pursue a maximal deterrence strategy, they will have greater incentive to stay in compliance. We assume that bureaucrats choose whether to determine a given firm’s compliance status. This deci- sion is perhaps the most fundamental enforcement activity for a regulatory officer, since it is not only the first action in a long line of potential actions directed at an individual firm but also represents an important performance indicator for an agency at the aggregate level. In making this choice, officers are interested in maximizing the political benefits of successful detection (i.e., getting credit for making correct compliance determinations) while minimizing the political costs of errors (i.e., getting blamed for making incorrect com- pliance determinations). Political benefits stem from being responsive to policy demands such as managing the aggregate consequences of noncompliance (e.g., pollution levels, accident rates) and political demands including the preferences of political principals and other stakeholders. As we argue below, an important element in being responsive is whether the agency is viewed as being ‘‘effective.’’ In addition to the various types of transaction costs involved for any given case (i.e., search and information costs, bargaining and decision costs, policing and enforcement costs), regu- latory officers must also consider the political costs of their decisions. Specifically they must weigh the con- sequences of making wrong decisions, and we argue that they will allocate their effort to minimize the net costs of different incorrect compliance determinations. Incorrect compliance decisions come in two forms. First, the officer could wrongly attempt detec- tion of a compliant firm (so called ‘‘harassment’’; Scholz 1991). Second, the officer could fail to detect a noncompliant firm. Each of these errors generates different political costs from unique clientele. For the first error, business interests are more likely to gen- erate costs for officers, while environmental advocacy groups are more likely to generate costs for the second error. In the aggregate, at the level of a region or a community, officers attempting to minimize one set of errors necessarily increase the probability of the other (this is of course not the case at the individual firm level). On the whole, clientele generate cross-cutting incentives for officers, who attempt to minimize costs associated with making errors, offering officers a trade- off. A rational regulatory officer, seeking to be respon- sive to stakeholders, will attempt to minimize costs generated from relevant clientele. We are interested in how community demographics affect the second type of errors, or failures to detect noncompliance. As we will argue below, factors such as demographics alter the relative political costs of these errors, making one error more attractive than the other, ceteris paribus. In the context of firm compliance, officers are unable to fully and regularly assess the behavior of all regulated entities. Even if bureaucrats are motivated primarily by functional or intrinsic preferences (Brehm and Gates 1997), they are still constrained by practical limits. For this reason, bureaucrats may engage in some satisficing behavior as a decision-making shortcut (Simon 1976) or, alternatively, choose to strategically allocate more effort to accurately determine the com- pliance status of some firms more than others. This could take the form of directing agency efforts to easier cases (Wilson 1989) or directing resources to cases depending on the estimation of the political costs of a wrong decision. We assume that firms are aware that officers face such limitations but are uncertain of precisely which officer type they are dealing with—one preferring less or more rigorous detection effort. Given that firms and regulatory officers are un- certain about each other’s preferences, they develop beliefs using signals in the policy environment. These signals inform a firm’s (agency’s) expectations about an agency’s (firm’s) strategy, and they originate from political and policy task factors alike (Potoski 1999; Ringquist 1993; Scholz and Wei 1986; Scholz, Twombly and Headrick 1991; Wood 1992). When signals from the policy environment are sufficiently suggestive that regulatory officers may pursue less rigorous detection, firms will be more likely to risk noncompliance. Community Demographics, Mobilization, and Enforcement Authority We posit that community characteristics shape firms’ and regulatory officers’ behavior by providing signals about each others’ preferences over compliance and en- forcement, respectively. For firms, demographics pro- vide informative signals about the expected costs of compliance. For reasons we specify below, bureaucrats are less likely to devote their limited resources to 508 david m. konisky and christopher reenock correctly detecting noncompliance when the firms are located in less politically active areas. Because large minority and poor communities tend to have fewer political resources with which to engage in advocacy, these communities as well as the regulatory officers who serve them will be less likely to employ aggressive detection efforts. Strategic firms respond accordingly and should be more inclined to risk noncompliance, leading to our first hypothesis: H1: Firms in minority (or poor) neighborhoods are more likely to be in noncompliance. Community demographics may generate costs for regulatory officers in several ways. First, failure to detect noncompliance, if uncovered, can lead to objections from interested stakeholders. Rational bureaucrats seek- ing to minimize costs generated from a specific clientele over incorrect decisions will devote fewer resources to carefully determining compliance for cases where the costs associated with wrongful detections are lower. Conversely, they will dedicate more attention to those cases where the costs of making incorrect decisions are higher. To be clear, officers cannot simply ignore these resource-intense cases to avoid the costs associated with them. Doing so will generate either undetected non- compliance or detection against compliant firms, both of which generate costs, albeit from different clientele. In this sense, the costs that a regulator faces for failing to detect a noncompliant firm vary, depending on the probability that an incorrect determination will be re- vealed. Community characteristics enter this decision- making equation because some communities have better capacity to identify and dispute an incorrect compliance decision. In particular, poor and minority communities tend to have fewer political resources to demand and secure accurate compliance decisions from bureaucrats. This raises the relative attractiveness of compliance bias in these communities. A second reason regards the identification of potential violations. In policy contexts where third- party monitoring assists bureaucrats in detecting problems, communities with reserve time, resources, and social capital are better equipped to serve in this role. Poor and minority communities are less likely to possess this capacity. As a result, regulatory officers are more likely to mischaracterize noncompliant firms as compliant in these areas. Whichever reason holds, the end result is the same—poor and minority neighborhoods are less likely to be able to generate political costs for regulatory officers. Therefore, bureaucrats have less incentive to actively pursue noncompliant firms in these communities, leading to the following hypothesis: H2: Bureaucrats are less likely to code violating firms as noncompliant when they are located in minority (or poor) communities. The effect of community demographics on firm and regulatory officer behavior, however, should not be constant across all contexts. Rather, we argue that the effect should be mediated by two contextual features— the ability of a community to generate political costs through effective mobilization and the vulnerability of a regulatory officer to these costs. We discuss each in turn. Community Mobilization. Past work demonstrates that communities with higher political capacity are better able to influence firm decision making (Hamilton 1993, 1995; Hamilton and Viscusi 1999), and we argue that a similar dynamic exists with firm compliance. While community demographics provide signals to bureaucrats (and firms) about potential political mobilization, they do not account for the effects of actual mobilization. Politically mobilized communities should alter the incentives of firms and bureaucrats in decisions regarding compliance. Regard- ing firms, communities that overcome collective action problems and exercise their political voice can modify the costs of compliance through direct pressure, ‘‘sham- ing’’ poor performers, or litigation. Well-organized communities should also increase the political costs to a bureaucrat of making an incorrect decision, since they can protest and publicize what they believe are any erroneous decisions. In turn, these higher costs should reduce the likelihood of officers wrongly classifying a firm violating the law as compliant and of firms being noncompliant. Two specific political-mobilization hy- potheses follow from this logic: H3a: Firms in minority (or poor) communities are less likely to be noncompliant when they are located in politically mobilized communities. H3b: Bureaucrats are more likely to code violating firms in minority (or poor) communities as noncom- pliant when these communities are politically mobilized. Enforcement Authority. To this point, we have implic- itly assumed that all bureaucrats share similar incentive structures when it comes to determining firm compli- ance. Yet, within an agency, different bureaucrats have varied tasks. Front-line agents focus on the day-to-day activities of policy delivery, while high-level managers focus on achieving overall organizational goals and managing relationships with external stakeholders (Hammond 1986). As a consequence, the incentives that influence bureaucrats’ compliance decisions may vary with their position in the agency. Critically important for our purposes, not all states assign the compliance bias and environmental (in)justice 509 same personnel final decisionmaking authority over compliance decisions. Some states allow field officers wide discretion over compliance decisions, while others require final authorization from higher-level agency managers. We argue that there is strong reason to believe that, depending upon their position and task responsibilities, bureaucrats are not equally vulnerable to the political costs that a community may generate. Specifically, we posit that compared to lower-level field officers (e.g., career civil servant front-line com- pliance officers), higher-level bureaucrats serving in agency management roles (e.g., Department Secretaries, Deputy Secretaries, Division Managers, or Regional Directors) have additional incentives to inaccurately characterize noncompliant firms as compliant. Com- pliance rates are a key indicator by which stakeholders evaluate the performance of regulatory agencies, and they are often included in annual reports to state leg- islatures and to federal overseers. In many areas of policy, where it is difficult to precisely measure bureau- cratic performance, for reasons of both asymmetric information and causal ambiguity between agency action and policy outcomes, stakeholders rely on these types of metrics instead. The use of such performance indicators often results in goal displacement where agencies focus on producing metrics to satisfy external stakeholders, rather than achieving more relevant policy outcomes (Blau and Meyer 1971; Bohte and Meier 2000; Downs 1967). Knowing this, bureaucrats serving in high-level management positions responsible for crafting impressions of agency performance have a stronger incentive to deliver high compliance rates. High-level managers, faced with these incentives, may be tempted to overlook noncompliant firms in some circumstances. We refer to this behavior as motivated, nondetection of compliance, and it is analo- gous to Bohte and Meier’s (2000) idea of organizational cheating in public agencies. Although bureaucrats enjoy informational advantages over many stakeholders, there are potentially adverse consequences to engaging in this behavior, and strategic bureaucrats are more likely to pursue motivated, nondetection of compliance when the risks of being caught are smaller.3 It is here again that we return to the important role of community characteristics. Since there is a higher probability of the deception not being detected, bureaucrats will be more likely to deliberately mischaracterize a firm violating the law as compliant when the community in which the firm is located has fewer political resources (i.e., poor and minority communities). To be clear, this incentive is above and beyond the reasons stated previously regarding the political mobilization capacity of these communities, leading us to our final hypothesis: H4: Bureaucrats who are more likely to be held accountable for agency performance are more likely to mischaracterize violating firms as compliant when these firms are located in minority (or poor) communities. Research Design To test our expectations we employ DCE, a statistical technique that enables us to jointly model the dual production of compliance. Originally developed by Feinstein (1990), DCE statistically controls for the possibility that some portion of noncompliant firms may remain undiscovered by regulatory officers. As a result, facilities may be entered into a database as compliant when they are actually violating the law. DCE estimates the likelihood of a firm being non- compliant, as well as the likelihood that a given entity was correctly coded as noncompliant by a regulatory officer. Failure to account for the two reasons for observing compliance (actual compliance and the failure to detect noncompliance), which is implicitly done when compliance is modeled with a single-equation probit or logistic regression specification, can bias inferences. DCE techniques have been utilized to correct for compliance bias in a variety of settings, including taxpayer compliance (Feinstein 1999) and firm com- pliance with environmental (Brehm and Hamilton 1996; Helland 1998a, 1998b; Scholz and Wang 2006), occupational health and safety, (Feinstein 1990), and food and drug (Olson 1995) regulation. The DCE approach has two specific benefits for our purposes. First, it corrects for bias in estimating demographic effects in firm-compliance models. Second, it enables us to explicitly account for the dual-agent production problem. With DCE we can consider the sources of bias by separately testing whether demographics affect firm decisions on compliance and regulators’ determinations of facility compliance. Specifically, we utilize Feinstein’s (1990) DCE estimator, which consists of two binary choice models: one that models the likelihood of a ‘‘true’’ violation and a second that models the likelihood of detection of ‘‘true’’ compliance. Because the likelihood of a viola- tion and the likelihood of detection are separately unobservable, these likelihood functions are estimated 3To be clear, the mechanisms by which motivated nondetection occur are not necessarily nefarious. We do not necessarily envision managers explicitly manipulating compliance documents or turn- ing the other way to blatant violations—although we do not rule this out. Rather, such motivations may translate into directing subordinates’ detection efforts either to or away from specific geographical areas of concern, based upon political demands. 510 david m. konisky and christopher reenock jointly via maximum-likelihood estimation. The DCE estimator is equivalent to a bivariate probit model with partial observability (Abowd and Farber 1982; Poirier 1980). More formally, we model the observed dichotomous compliance variable, zi, as the product of two unobserved latent dichotomous variables, yi1 and yi2, such that zi is only observed, where zi 5 yi1 X yi2. In our application, we assign the interpretations of firm noncompliance and agency detection to yi1 and yi2, respectively, such that: Zi ¼ 1; yi1 and yi2 ¼1 0; otherwise n Thus, we expect to observe a firm being listed as noncompliant (zi 5 1) when both the firm is non- compliant and the agency has detected this noncom- pliance. In all other combinations of firm and agency behavior, we observe a case of compliance (zi 5 0), which highlights the fact that we cannot distinguish between true compliance and undetected violators.4 In this model the probabilities are jointly and simulta- neously determined with a correlated error term, r, Pr z ¼ 1ð Þ¼ F2 x1b1; x2b2; rð Þ Pr z ¼ 0ð Þ¼ 1 � F2 x1b1; x2b2; rð Þ yielding the following likelihood to be estimated: lnL ¼+N i¼1fzilnF2ðx1b1; x2b2; rÞ þ ð1 � ziÞ ln½1 � F2ðx1b1; x2b2; rÞ�g Identification of this model requires an exclusion of at least one exogenous variable to ensure that the parameters being estimated in each model are not identical. Moreover, identification is enhanced when the exogenous variable exhibits sufficient variation over the sample. This condition is likely to be met when the exogenous variable is continuous (Poirier 1980). In our model, Signature Authority (which as we describe below is our measure of agency structure) is a continuous exogenous variable which we restrict to the detection equation based on our theoretical argument that the location of decision making in a state administrative agency creates different incentives for bureaucrats. We do not include Signature Authority in the firm model given what we think is a reasonable assumption that firms are largely unaware of this feature of administrative agencies, and, even if they were aware, it is unlikely to affect their compliance costs. The other variables not included in both equations are the firm-level indicators of past enforce- ment. Because firms’ compliance costs are affected by the temptation to cheat, which is in turn a function of the likelihood of getting caught, we include measures of past government inspections in the firm equation. For their part, we argue that regulators will devote their time and effort to ‘‘bad actors,’’ so we include measures of whether recent violations resulted in a punitive action in the detection equation. The empirical setting for our analysis is the regulatory compliance of individual firms within the context of air pollution control across the U.S. states. We use an original dataset that combines firm- level compliance with the federal CAA with data on community characteristics and contextual variables across county, state administrative region, and U.S. states. The federal government sets most standards under the CAA, but the states have responsibility for enforcing many of its provisions. To best capture the policy and political demands on state regulatory officers, we use novel data on how each state agency divides enforcement responsibilities among bureau- crats internal to the agency. We discuss these data in greater detail below. Our attention to the details of administrative program structure does, however, generate a trade-off. Given the demands of gathering these data, we can only examine a limited time frame (2001–2004) for which we have compiled administra- tive data. However, we do not believe that this trade- off compromises our ability to draw valid inferences because our hypotheses only require cross-sectional variance. Moreover, by limiting our analysis to a single Presidential term, we can hold constant variations in national factors that might influence state enforcement patterns. Of course, we must be cautious extending our inferences beyond this temporal domain. Measuring Compliance The dependent variable, HPV Status, reflects whether a regulated facility was designated as a High Priority Violator (HPV) of the CAA. An HPV facility is one that is failing to meet core CAA obligations, usually pollu- tion performance standards. Dissimilar to minor paper- work violations, noncompliance of this sort can trigger significant punitive sanctions including substantial monetary penalties. For this reason, designating a firm as HPV is of high political relevance for regulatory officers. HPV Status is a dichotomous variable that takes a value of one for a facility designated as a HPV at any time during the year, and zero otherwise. The variable is 4It is possible that there could be ‘‘false’’ noncompliance, but this would be exceedingly rare in our context. HPV determinations represent cases of severe noncompliance and typically include major infractions of emissions standards, minimizing errors, even by overly zealous regulators. compliance bias and environmental (in)justice 511 measured on annual basis from 2001 to 2004, and we examine all federally reportable facilities under the CAA. The result is a panel dataset that includes a total of 160,896 cases (40,224 firms per year),5 although the number of cases analyzed is slightly fewer due to missing data.6 Table A.1 in the online appendix includes sources and descriptive statistics for all data. Measuring Community Characteristics Environmental justice concerns typically emerge with respect to race and class. We use two standard measures in the literature to assess the racial compo- sition of a community: Percentage of African-American Population and Percentage of Hispanic Population. The literature is less consistent when accounting for class, with most using some combination of income, pov- erty, and education measures. Rather than emphasize any one measure, we constructed a scale based on four standardized variables, median household income, percent below poverty line, percent college educated, and percent high school educated, each measured at the zip-code level. The resulting scale, Class, obtained a Cronbach’s alpha of .86, and an investigation of the dimensionality of the scale revealed a single factor with an eigenvalue of 2.73, accounting for 79% of the total variance. Measuring Community Political Mobilization To assess the degree of community political mobiliza- tion, we require a measure that captures whether citizens have overcome collective action costs and organized around environmental justice concerns. Standard meas- ures of political mobilization, such as voter turnout and campaign donations, are too broad to capture our concept of interest. Moreover, it is likely that it is precisely in communities where traditional political mobilization is low that the pressures for organization around equity issues are highest. As a result, we use a more direct measure: the presence of locally oriented environmental justice advocacy organizations. We assembled data from the People of Color Environmental Groups Directory (Environmental Justice Resource Center 2000), which publishes a list of organizations whose activities include advocating for environmental justice. Specifically, we coded the presence of groups listed as ‘‘environmental justice resource groups’’ at the zip-code level, as well as information about the constituency served by each group and its geographic focus. Using these data, we first aggregated this group information up to the three-digit zip-code level to take into account the positive spillovers from the presence of a group, under what we believe is a reasonable assumption that the reach of these groups extends beyond the specific mailing zip code of their main office.7 We then constructed a scale based on five standardized varia- bles, the total number of groups, the total number of groups focused on African Americans, the total number of groups focused on Hispanic groups, the total number of groups with a neighborhood focus, and the total number of groups with a local focus. The resulting scale, Mobilization, obtained a Cronbach’s alpha of .80, and an investigation of the dimensionality of the scale revealed a single factor with an eigenvalue of 2.54, which accounts for 92% of the total variance. Section 3 of the online appendix discusses the meas- urement of this variable in more detail. Measuring Regulatory Officer Incentives To test our hypothesis regarding motivated, nondetec- tion of compliance, we must know whether the author- ity to issue enforcement-related actions rests with field officers, is centralized in the hands of high-level agency officials, or lies somewhere in between. We believe that a reasonable proxy is the location within the agency where (or more precisely within whose hands) final signature authority to issue enforcement actions lies. We measure the locational authority over three sets of enforcement actions (Reenock and Gerber 2008). For each state air-pollution control agency, this measure divides (Final Authority—1) by (Vertical Depth—1), where Final Authority represents the location of final signature authority for a given action within the chain of command, and Vertical Depth represents the number of entities in the direct chain of command from the field officer up to and including the individual or committee at the top of the chain of command. Tennessee, for example, has a very centralized authority structure. Typically, enforcement actions are pushed up the agency’s chain of command all the way to the top, 5We correct for the panel structure of the data by including time dummy variables as well as estimating robust standard errors that are clustered in the firm. Additional analysis is reported in the online appendix, Table A.6. 6About 4.5% of our cases are missing demographic data at the zip-code level from the U.S. Census (likely due to shifting zip codes). The missing zip codes have slightly lower HPV rates and likely possess higher than average incomes. Given this pattern, we likely underestimate demographic effects on compliance bias. 7 A detailed description of this measure and a robustness check, using five-digit zip codes (the results were substantively similar) is presented in the online appendix (Section 3, Table A.3). 512 david m. konisky and christopher reenock eventually being signed off by the agency head. Com- pare this to a state such as South Carolina, where these actions are signed off by civil servants located five levels below the agency head. The resulting variable ranges between (0) and (1), where zero represents perfectly centralized decision-making authority, and one repre- sents authority decentralized to the field-officer level. This equation yields a measure of locational authority and is available for three levels of enforcement action across each state—Level I actions (informal and formal notices that typically are reserved for the first step in a case of noncompliance), Level II actions (formal administrative actions, which may include penalties), and Level III actions (civil and criminal cases filed against a noncompliant entity). We standardized each of these measures and added them to construct an equally weighted scale of sign-off authority. The final measure, Signature Authority, has a mean of approx- imately zero and a standard deviation of 2.5. Control Variables Firms and regulatory officers rely on a host of signals to inform their decisions. Given that these signals may be correlated with their compliance decisions as well as with the demographic composition of the relevant community, we include several controls to avoid drawing incorrect inferences. To account for relevant policy task factors, we include measures of problem severity and complexity in the local policy arena. We measure problem severity with Nonattain- ment, a count of the number of CAA ambient air- quality standards a county fails to meet on an annual basis. We also include Policy Entropy, a diversity index of state air-emissions sources in a county, where higher values represent a more complex implementa- tion environment (Potoski 1999). Last, many states have decentralized their CAA compliance-monitoring activities to regional offices. To control for each office’s workload, we include Regional Scale, which is the total number of regulated firms in the region. Firms’ and bureaucrats’ compliance decisions may also be influenced by economic and political condi- tions. To account for economic conditions, we use Unemployment Rate, measured at the county-level. In addition, we include a measure of industry salience as the percentage of a given county’s total nonfarm income that derives from Air Polluting Industries (Ringquist 1993). Political factors at both the state and local level may also affect compliance decisions. A stronger Democratic presence in state government has been associated with greater regulatory activity in general (Scholz, Twombly, and Headrick 1991; Scholz and Wei 1986), and in enforcement of the CAA in particular (Konisky 2007; Wood 1992). To account for state-level political influence, we include Democratic Governor, a dummy variable reflecting gubernatorial partisan control, and Percentage Democrats in State Legislature, which is the total percentage of Democrats in both state houses. Past research has also shown that regulators are responsive to local political conditions (Scholz, Twombly, and Headrick 1991; Scholz and Wei 1986; but see Huber 2007). Given that minorities tend to live in more Democratic areas, and state governments led by Democrats tend to pursue more enforcement, it is important to control for any local political effects, which we do with Percent Democratic Vote, which is the county-level percentage of the 2000 presidential vote for the Democratic candidate. Last, we include a set of firm-level controls to account for heterogeneity in compliance costs across firm types and for variation in the political costs that officers face in handling cases for different types of firms. First, firms with a recent agency-inspection history are more likely to assign a higher cost to future noncompliance. Therefore, we include two dichoto- mous inspection variables in the firm model that indicate whether it has been inspected in the prior year, State Inspection and Federal Inspection. Moreover, regulatory officers will be more likely to incur greater political costs for failing to detect a prior noncompliant firm. Therefore, in the regulatory detection model, we include two dichotomous enforcement actions variables that indicate whether the firm has been punished with at least one enforcement action in the prior year, State Enforcement Action and Federal Enforcement Action. We also include three firm-level dummy variables reflecting a facility’s industrial classification code: Manufacturing, Utilities, and Transportation. Last, we also included a firm-level variable reflecting the level of pollution generated by the regulated entity. This variable, Major Source, is a dummy variable that is coded one if the firm is classified as a major source of air pollution (generally greater than 100 tons per year) and zero if it is not. Empirical Results Before describing the results from estimating the DCE model, it is important to recall that the model consists of two sets of estimated parameters. For the first set, the firm model, positive coefficients reflect an increase in the probability of a firm being an HPV. For the second set, the detection model, positive coeffi- cients reflect an increase in the probability of a firm compliance bias and environmental (in)justice 513 being detected as an HPV. In addition, it is important to note that the mean of the group-mobilization and signature authority variables are essentially zero. Ac- cordingly, the parameters on the constituent terms, Percentage of African American Population and Percent- age of Hispanic Population, represent the effect of either community demographic when both mobilization and signature authority are at their respective means. The results are displayed in Table 1. Given space constraints, we focus our discussion on the variables of central theoretical interest. Across both the firm and detection models, the results are generally con- sistent with our expectations. The estimates from the firm model suggest that community demographics have statistically significant associations with a firm’s HPV classification. Specifically, firms located in His- panic communities and lower socioeconomic status communities are more likely to be noncompliant with the CAA. Firms located in African American commun- ities, however, are not more likely to be major violators—a finding that cuts against our expectations and claims made by many environmental justice advocates. It is also worth noting that the coefficients on the Hispanic and class variables are of greater magnitude than those derived from a single-equation probit model, which highlights the problem of model- ing compliance without taking into account the com- pliance bias inherent in the data.8 (We present estimates from a probit model in Section 2 of the online appendix.) The estimates in the detection model suggest that community demographics are also systematically as- sociated with the likelihood of regulatory officers accurately detecting noncompliant firms. The percent- age of Hispanics (but not African Americans) in a community and a community’s socioeconomic class each have a statistically significant effect on regulatory officers’ reliably detecting noncompliance. The results suggest that, on average, regulators are less likely to detect HPVs in these communities. Taking the results of both models together, we now have a clearer picture of the process behind disparities in environmental regulatory outputs. Relative to those located in more upper-class, non-Hispanic communities, firms are both more likely to be significant violators of the CAA and less likely to be characterized as such as by bureaucrats. This supports our expectations in both Hypothesis 1 and Hypothesis 2. What of the ability to mitigate this pattern of bias via political mobilization? Recall that our expectation is that, in more mobilized communities, firms will face greater costs associated with noncompliance, and bureaucrats will face greater costs associated with failing to detect noncompliance. To the extent that discriminatory patterns exist across community dem- ographics, these patterns ought to be attenuated in the presence of actual political mobilization. The analysis is consistent with our expectations in Hypothesis 3. The interaction terms in both the firm and detection models suggest a diminishment of bias—that is, in the presence of mobilized, Hispanic communities, firms are less likely to be noncompliant, and bureaucrats are more likely to detect noncompliance.9 (We would have expected an analogous effect in African American communities, but as noted above, the coefficient on the initial percentage African American variable does not suggest any baseline bias to attenuate.) This finding lends additional support to a widely held belief among scholars that political mobilization can effec- tively counter environmental inequities. The novelty of our findings, however, lies in demonstrating that political mobilization can alter not only firms’ com- pliance decisions, but also regulatory officers’ detection decisions.10 It also appears that the ability of political mobi- lization to mitigate this bias does not extend to other standard indicators of mobilization. We gathered data on both voter turnout from the 2000 Presiden- tial election at the county level and the number of campaign donations made to candidates annually (2001–2004) at the zip-code level. When we estimate the effect of these indicators of political mobilization, neither successfully attenuates the compliance bias present in Hispanic neighborhoods—the coefficient on the interaction term is null in both cases. We suspect that voting and campaign donations repre- sent diffuse mobilization across policy issues—too diffuse to alter the incentives of firms or regulatory officers in Hispanic communities. (These results are pro- vided in Section 4, Table A.5 in the online appendix.) Finally, the parameter estimate on the Signature Authority interaction term is consistent with our last hypothesis that institutional structures alter regula- tory officers’ incentives to detect noncompliance. 8Moreover, with a single equation, the analyst must decide whether to interpret an effect as influencing compliance or detection. 9Our mobilization measure primarily reflects groups representing persons of color and may be a less valid measure of mobilization around class issues. Including a multiplicative interaction term between mobilization and class yields a null coefficient. 10 Our results are also robust to alternative specifications of group mobilization. Specifically, we used a simple count of environ- mental justice groups, and differentiated between groups focused on African American and Hispanic issues when creating our interaction terms. These results are reported in the online appendix (Section 3, Table A.4). 514 david m. konisky and christopher reenock TA B L E 1 High Priority Violator Status for Individual Regulated Firms HPV Status Bivariate Probit, with Partial Observability Firm Model Pr(Observing HPV) Detection Model Pr(Detection) b s.e. b b s.e. b Environmental Justice Indicators % African American 0.0002 0.0010 0.0003 0.0013 % Hispanic 0.0069*** 0.0011 -0.0069*** 0.0014 Class -0.0632** 0.0254 0.0635** 0.0320 Mobilization 0.1011** 0.0402 -0.0962* 0.0494 Mobilization X African American -0.0011 0.0008 0.0008 0.0009 Mobilization X Hispanic -0.0024*** 0.0007 0.0022** 0.0009 Signature Authority — — -0.0216*** 0.0054 Sig. Authority X African American — — 0.0000 0.0002 Sig. Authority X Hispanic — — 0.0008*** 0.0002 Policy Task Factor Indicators Regional Scale 0.0003*** 0.0001 -0.0001 0.0001 Policy Entropy -0.0474 0.0282 0.0860** 0.0351 Nonattainment 0.0994*** 0.0431 -0.0634 0.0535 Economic Context Indicators Unemployment 0.0850 0.0117 -0.0761*** 0.0143 % Income Air Pollution Industry 0.0076 0.0041 -0.0060 0.0049 Political Context Indicators Democratic Governor -0.1617*** 0.0302 0.1584*** 0.0396 % Democratic in State Legislature -0.0012 0.0013 0.0006 0.0017 % Democratic Vote -0.0095*** 0.0015 0.0080*** 0.0018 Firm-Level Factors State Inspection (1 Year Lag) 0.1759*** 0.0258 — — Feb Inspection (1 Year Lag) -0.0341 0.0219 — — State Enforcement Action (1 Year Lag) — — 5.4527*** 0.5632 Feb Enforcement Action (1 Year Lag) — — 1.2510*** 0.2173 Manufacturing Firm 0.0148 0.0402 0.0913* 0.0551 Utility Firm 0.0073 0.0476 -0.0621 0.0570 Transportation Firm 0.0234 0.1167 -0.0583 0.1368 Major Source 0.6429*** 0.0344 -0.2262** 0.0984 Year Dummy (2002) -0.1832*** 0.0373 0.2145*** 0.0503 Year Dummy (2003) -0.1932*** 0.0392 0.1815*** 0.0503 Year Dummy (2004) -0.2502*** 0.0388 0.2185*** 0.0499 Intercept -1.1353*** 0.1032 0.5389* 0.2785 rho -0.867** Log-Likelihood -27858.16 x2 (49) 1241.56*** Number of Cases 153580 Note: *p , .10, **p , .05, ***p , .01, two-tailed test. Standard errors clustered on firm. compliance bias and environmental (in)justice 515 The results suggest a statistically significant interaction between percentage of Hispanic residents in a com- munity and the location of enforcement authority. When this authority rests with field officers, while a certain degree of failed detection still exists, field officers are less sensitive to whether a community is Hispanic. In other words, the detection of noncompliance is relatively flat across levels of Hispanic communities. However, when enforcement authority is centralized near the top of the agency’s chain of command, a different type of pressure arises. For these high-level managers, the detection of noncompliance wanes in the presence of an increasingly more Hispanic community. This relationship is consistent with our argument that bureaucrats near the top of the agency’s structure feel greater pressure for their agency to perform well (i.e., produce high compliance) and as such are more sensitive to registering noncompliance in heavily Hispanic communities. It is worth noting that this relationship is not conditional on party control of the governor’s office. In models not reported, we included a three-way interaction term—Democratic Governor X Signature Authority X % Hispanic (and similarly for % African-American)—but the coefficient was not statistically significant, suggesting that high-level bu- reaucrats’ compliance determinations are not condi- tioned by executive political control. This is consistent with the idea that high-level managers, across political contexts, worry about maintaining a positive image of their agency. Figure 1 better demonstrates the substantive effects of these findings. Each of the panels display the marginal effect of a 10% increase in the percent- age of the population that is Hispanic in a zip code on the joint probability of observing a noncompliant, undetected firm.11 The top panel displays the mar- ginal effect of Hispanic across the mobilization scale, while the lower panel displays the effect across the signature authority scale.12 The top panel of Figure 1 shows that regulatory officers respond to Hispanic communities differently, conditioned on whether those communities are more mobilized around environmental justice concerns. In fact, the number of undetected noncompliant firms (nationwide) can decrease from a high of approx- imately 150 in the absence of mobilized communities to nearly 50 in the presence of highly mobilized ones. A decrease of 100 HPVs nationally may appear to some to be a diminutive effect, but the presence of a single HPV can be quite impactful for the surround- ing community. Direct mobilization of at-risk com- munities is not the only incentive mechanism that affects regulator decision making. The lower panel suggests that the location of signature authority within an agency is a powerful incentive device as well. While all agency bureaucrats engage in some amount of failed detection (i.e., the expected number FI GU R E 1 Effect of Percent Hispanic on Undetected HPVs across Mobilization and Signature Authority 11 The substantive effect that we report is the change in the unconditional joint probability of observing a noncompliant firm, that is likely to have gone undetected, or Pr y1 ¼ 1;ð y2 ¼ 0Þ¼ F x1b1ð Þ� F2 x1b1; x2b2; rð Þ multiplies by the total number of firms for whom the condition is reasonable (see next note for explanation). 12The figures were created by estimating the mean expected probability and associated standard errors from 10,000 draws off of the variance-covariance matrix. To display a substantively interesting outcome, we multiplied the marginal probability for a given condition by the nationwide subset of the firm population for whom an additional 10% Hispanic gain is reasonable (approximately 18%, or 6,913 firms for our data). This calcu- lation produced the expected change in the number of unde- tected noncompliant firms across the United States. 516 david m. konisky and christopher reenock of undetected noncompliant firms is positive over the entire range of signature authority), those officers nearer the top of an agency’s chain of command succumb to an additional disincentive to code non- compliance. At the extreme, in the presence of a more Hispanic community, when decision making over enforcement rests with high-level bureaucrats, nearly 140 noncompliant HPVs will go undetected compared to 80 when such authority rests with field officers. We believe that this is due to high-level bureaucrats being more likely to engage in organizational cheating in the presence of a community that is less politically mobi- lized and therefore less likely or able to engage in fire- alarm oversight.13 The relative impact of the mobilization and signature authority variables on the joint probability of observing an undetected violating firm compares reasonably well with other variables in the model. For example, having a Democratic governor decreases the number of undetected violators by an estimated 290 firms, nationally. This suggests that the greatest impact of mobilization or signature authority (;150) is nearly half the magnitude of changing the party of the governor’s office. Another factor, local-level partisan representation, also motivates firms and regulators. An increase of a standard deviation (about14 points) above the average percent of the Democratic county vote in the 2000 presidential election (around 46%), decreases the number of undetected violators by an estimated 200 firms, nationally. These results are consistent with long-held findings in the literature that central and local partisan actors shape policy delivery (Scholz and Wei 1986). But, our analysis reveals two alternate and meaningful pathways to influence com- munity compliance bias—one emphasizing commun- ity empowerment and political mobilization and the other emphasizing regulatory officers’ incentives struc- tures via creative-agency design features. Discussion and Conclusion Democratic governments continue to wrestle with shortfalls in equitable policy delivery. Examining the occurrence of such shortfalls has been a central focus of scholars and practitioners alike. In this article, we focused on one area, environmental policy, for which research has failed to arrive at a consensus on the causal process that generates bias in regulatory out- comes. We have attempted to move this discussion in a different direction—one that considers the incen- tives of both firms and regulatory officers making decisions about compliance. Our argument suggests that disparities in U.S. environmental policy outcomes are rooted in the incentives facing both firms and the bureaucrats tasked with implementation. Although past research has recognized the dual production of compliance bias, we offered a novel theoretical account focusing on the incentives of bureaucrats to code firm com- pliance status. This approach enabled us to then show how decisions change in the presence of variation in these incentives. We demonstrated that when com- munities overcome collective action problems, bu- reaucrats will dedicate more resources to the firms in their areas. We also showed that agency design can accentuate bias in compliance decisions. High-ranking bureaucrats have an incentive to overreport compli- ance rates, since these rates are used as indicators of agency performance by external stakeholders. Because these bureaucrats are less likely to get caught engaging in this behavior when communities have fewer polit- ical resources to detect it, the outcome is likely to further disadvantage poor and minority communities since they tend to lack these resources. An unanticipated finding is that the bias revealed from our analysis pertains to poor and Hispanic communities, but not African American ones. It is worth noting that this result would have been masked had we just considered minorities collectively, which is often done in the literature. What might explain this pattern, and particularly the lack of bias in firm and regulatory compliance decisions toward firms located in African American communities? The simplest interpretation, of course, is that there is no systematic bias. Although this runs counter to claims made in the literature (e.g., Bryant 1995; Bullard 1993), it would be welcome news for these communities which past work has found to be subject to disproportionate environ- mental burdens (Ringquist 2005). It may also reflect the time period analyzed. Our analysis was limited to 2001–2004, and by this time, the environmental justice movement was quite mature in many African American communities, and firms and regulators alike may have factored in the costs of committing major violations and failing to detect noncompliance, re- spectively. In other words, advocacy in these com- munities may have paid considerable dividends by the time of our study. For Hispanics, however, the results 13We also considered the possibility that mobilized groups might change the decision calculus for upper-level bureaucrats. We examined whether a three-way interaction was present between Hispanic community, mobilization, and signature authority, but the coefficient was not statistically significant. compliance bias and environmental (in)justice 517 suggest a more traditional story of environmental disparities. Firms in these communities are not only more likely to be significant violators of their CAA obligations, but they are less likely to be designated as such by regulatory officers. There are several additional implications of our study. While our findings suggest that substantial disparities in compliance outcomes exist, they also suggest the possibility that patterns of bias stem from the decision-making structures of regulatory officers, not necessarily from intentional discrimination. This by no means discounts the importance of the disparate outcomes, but it does suggest that the source of bias need not rest with deliberate prejudice, but with bureaucrats’ rational responses to their resource con- straints. In other words, biased outcomes are possible, indeed probable, even in the absence of explicit discrimination. Our results also offer a cautionary note on goal displacement. Political principals can use various performance measures to determine agency ‘‘suc- cess.’’ However, in certain contexts, indicators such as compliance rates may present perverse incentives to regulatory officers. Our analysis suggests that when bureaucrats face such perverse incentives, they may substitute the appearance of successful policy delivery for equitable policy delivery. Assessing the way in which such indicators incentivize regulatory officers is essential for any effort to reducing compliance bias. Given the increasing prevalence of performance measurement at all levels of government, the poten- tial implications of this type of goal displacement on equitable policy implementation likely extends into many different areas of public policy. Last, our study reveals evidence of multiple ways that class- and race-based disparities could be re- dressed. Communities could be empowered through capacity-building efforts. Such efforts designed to help poor and minority areas organize around issues of environmental protection will produce a demand for more equitable treatment from government and put direct pressure on firms to improve their perform- ance. Second, our results suggest that changes to the institutional decision-making structure of the agencies responsible for implementing policy would also be effective. Specifically, our analysis suggests that decen- tralizing authority to regulatory officers in agencies could result in fewer cases of deliberate nondetection of compliance. That is, moving the location of compliance determinations away from high-ranking officials with incentives to overreport compliance may result in fairer—although not necessarily fair— treatment of communities hosting regulated firms. Acknowledgments We would like to thank Don Haider-Markel, Eliz- abeth Rigby, and Evan Ringquist for helpful com- ments and discussion, as well as John Mortara and Kristen Holder for their excellent research assistance. References Abowd, John M., and Henry S. Farber. 1982. ‘‘Job Queues and The Union Status of Workers.’’ Industrial and Labor Relations Review 35 (3): 354–67. Blau, Peter M., and Marshall W. Meyer. 1971. Bureaucracy in Modern Society. 2nd ed. New York: Random House. Bohte, John, and Kenneth J. Meier. 2000. ‘‘Goal Displacement: Assessing the Motivation for Organizational Cheating.’’ Public Administration Review 60 (2): 173–82. Braithwaite, John, and Toni Makkai. 1991. ‘‘Testing an Expected Utility Model of Corporate Deterrence.’’ Law & Society Review 25 (1): 7–40. Brehm, John, and Scott Gates. 1997. Working, Shirking, and Sabotage: Bureaucratic Response to a Democratic Public. Ann Arbor: The University of Michigan Press. Brehm, John, and James T. Hamilton. 1996. ‘‘Noncompliance in Environmental Reporting: Are Violators Ignorant, or Evasive, of the Law?’’ American Journal of Political Science 40 (2): 444–77. Bryant, Bunyan. 1995. Environmental Justice: Issues, Policies, and Solutions. Washington, DC: Island Press. Bullard, Robert D. 1993. ‘‘Anatomy of Environmental Racism and the Environmental Justice Movement.’’ In Confronting Environmental Racism: Voices from the Grassroots, ed. R. D. Bullard. Boston: South End Press, 15–39. Bullard, Robert D. and Glenn S. Johnson. 2000. ‘‘Environmental Justice: Grassroots Activism and Its Impact on Public Policy Decision Making.’’ Journal of Social Issues 56 (3): 555–78. Dion, Catherine, Paul Lanoie, and Benoit Laplante. 1998. ‘‘Monitoring of Pollution Regulation: Do Local Conditions Matter?’’ Journal of Regulatory Economics 13 (1): 5–18. Downs, Anthony. 1967. Inside Bureaucracy. Boston: Little, Brown. Earnhart, Dietrich. 2004a. ‘‘Regulatory Factors Shaping Environ- mental Performance at Publicly-Owned Treatment Plants.’’ Journal of Environmental Economics and Management 48 (1): 655–81. Earnhart, Dietrich. 2004b. ‘‘The Effects of Community Charac- teristics on Polluter Compliance Levels.’’ Land Economics 80 (3): 408–32. Environmental Justice Resource Center. 2000. People of Color Environmental Groups Directory. Atlanta: Environmental Jus- tice Resource Center. Feinstein, Jonathan S. 1990. ‘‘Detection Controlled Estimation.’’ Journal of Law & Economics 53 (1): 233–76. Feinstein, Jonathan S. 1999. ‘‘Approaches to Estimating Non- compliance: Examples from Federal Taxation in the United States.’’ The Economic Journal 109 (456): 360–69. Gray, Wayne B., and Ronald J. Shadbegian. 2004. ‘‘‘Optimal’ Pollution Abatement: Whose Benefits Matter, and How Much?’’ Journal of Environmental Economics and Management 47 (3): 510–34. 518 david m. konisky and christopher reenock Hamilton, James T. 1993. Politics and Social Costs: Estimating the Impact of Collective Action on Hazardous Waste Facility. The RAND Journal of Economics 24 (1): 101–25. Hamilton, James T. 1995. Testing for Environmental Racism: Prejudice, Profits, Political Power? Journal of Policy Analysis and Management 14 (1): 107–32. Hamilton, James T., and W. Kip Viscusi. 1999. Calculating Risks? The Spatial and Political Dimensions of Hazardous Waste Policy. Cambridge, MA: MIT Press. Hammond, Thomas H. 1986. ‘‘Agenda Control Organizational structure and Bureaucratic Politics.’’ American Journal of Political Science 30 (2): 379–420. Helland, Eric, 1998a, ‘‘Environmental Protection in the Federalist System: The Political Economy of NPDES Inspections.’’ Economic Inquiry 36 (2): 305–19. Helland, Eric, 1998b, ‘‘The Enforcement of Pollution Control Laws: Inspections, Violations, and Self-Reporting.’’ The Re- view of Economics and Statistics 80 (1): 141–53. Huber, Gregory A. 2007. The Craft of Bureaucratic Neutrality: Interests and Influence in Governmental Regulation of Occupa- tional Safety. Cambridge: Cambridge University Press. Konisky, David M. 2009. ‘‘Inequities in Enforcement? Environ- mental Justice and Government Performance.’’ Journal of Policy Analysis and Management 28 (1): 102–21. Konisky, David M., and Tyler S. Schario. 2010. ‘‘Examining Environmental Justice in Facility-Level Regulatory Enforce- ment.’’ Social Science Quarterly 91 (3): 835–55. Maravall, José Marı́a, and Adam Przeworski. 2003. Democracy and the Rule of Law. Cambridge: Cambridge University Press. Meier, Kenneth J. 1993. ‘‘Representative Bureaucracy: A Theo- retical and Empirical Exposition.’’ In James Perry, ed., Research in Public Administration. Greenwich, CT: JAI Press. Mennis, Jeremy L. 2005. ‘‘The Distribution and Enforcement of Air Polluting Facilities in New Jersey.’’ The Professional Geographer 57 (3): 411–22. Olson, Mary K. 1995. ‘‘Regulatory Agency Discretion among Competing Industries: Inside the FDA.’’ Journal of Law, Economics, & Organization 11 (2): 379–407. Poirier, Dale J. 1980. ‘‘Partial Observability in Bivariate Probit Models. Journal of Econometrics 12: 209–17. Potoski, Matthew. 1999. ‘‘Managing Uncertainty through Bu- reaucratic Design: Administrative Procedures and State Air Pollution Control Agencies.’’ Journal of Public Administration Research and Theory 9 (4): 623–40. Raz, Joseph. 1977. ‘‘The Rule of Law and Its Virtue.’’ The Law Quarterly Review 93: 195–211. Reenock, Christopher M., and Brian J. Gerber. 2008. ‘‘Political Insulation, Information Exchange, and Interest Group Access to the Bureaucracy.’’ Journal of Public Administration Research and Theory 18 (3): 415–40. Ringquist, Evan J. 1993. Environmental Protection at the State Level. Armonk, NY: M.E. Sharpe. Ringquist, Evan J. 2005. ‘‘Assessing Evidence of Environmental Inequities: A Meta-Analysis.’’ Journal of Policy Analysis and Management 24 (2): 223–47. Scholz, John T. 1991. ‘‘Cooperative Regulatory Enforcement and the Politics of Administrative Effectiveness.’’ American Polit- ical Science Review 85 (1): 115–36. Scholz, John T., Jim Twombly, and Barbara Headrick. 1991. ‘‘Street-Level Political Controls over Federal Bu- reaucracy.’’ American Political Science Review 85 (3): 829– 50. Scholz, John T., and Wang Cheng-Lung. 2006. ‘‘Cooptation or Transformation? Local Policy Networks and Federal Regula- tory Enforcement.’’ American Journal of Political Science 50 (1): 81–97. Scholz, John T., and Wei Feng-Heng. 1986. ‘‘Regulatory Enforce- ment in a Federalist System.’’ American Political Science Review 80 (4): 1249–70. Simon, Herbert. 1976. Administrative Behavior, 3rd Edition. New York: The Free Press. Wilson, James Q. 1989. Bureaucracy: What Government Agencies Do and Why They Do It. New York: Basic Books. Winter, Soren, and Peter May. 2001. ‘‘Motivation for Compli- ance with Environmental Regulation.’’ Journal of Policy Analysis and Management 20 (4): 675–98. Wood, B. Dan. 1992. ‘‘Modeling Federal Implementation as a System: The Clean Air Case.’’ American Journal of Political Science 36 (1): 40–67. David M. Konisky is Assistant Professor at Georgetown University, Washington, DC 20057. Christopher Reenock is Associate Professor at Florida State University, Tallahassee, FL 32306. compliance bias and environmental (in)justice 519 
work_2i4onyceabcetmg2mkrrcuncre	----	Blockchain technology – the ultimate solution for utmost cybersecurity LOGIN YourStory YourStory Club YourStoryTV HerStory SocialStory SMBStory More Companies Advertise With Us Makers-India AutoStory MyStory Weekender Journal YS Korea Deutschland Germany Events Visual English Kannada Hindi Tamil Asamiya Bangla Gujarati Malayalam Marathi Odia Punjabi Telugu Urdu அ अ ಅ Login English Kannada Hindi Tamil Asamiya Bangla Gujarati Malayalam Marathi Odia Punjabi Telugu Urdu அ अ ಅ Login Disclaimer: This is a user generated content for MyStory, a YourStory initiative to enable its community to contribute and have their voices heard. The views and writings here reflect that of the author and not of YourStory. Blockchain technology – the ultimate solution for utmost cybersecurity By Arpita Arya|2nd Feb 2018 Blockchain technology has created a sensation in the internet space. Let's get to learn more about the concept and terminologies.  0 claps +0 Share on 0 claps +0 Share on Share on What Is Blockchain Technology? Blockchain technology came into existence in 2008 and with the introduction of bitcoins, it became popular worldwide. According to Wikipedia, “blockchain is a continuously growing list of records, called blocks, which are linked and secured using cryptography”. This technology has created a sensation in the internet space which was originally invented by Satoshi Nakamoto.  Trading in cryptocurrencies does involve the high degree of risk. To solve these major concerns many tech communities like Blockchain-hero.com is spending sleepless nights to find other potential uses and solutions for the blockchain technology. The best part of this technology is that it eliminates the need for a third party to control the database which is shared among all the users. This distributed yet secured system initiated a new trend among the internet with lots of future scopes. Evolution Of Transaction Data Storage Data storage changed drastically after the invention of digital currencies also known as a cryptocurrency. In today’s date, there are more than 700 Bitcoin-like cryptocurrencies available in the market. They have finally set up the motion to be the principal form of transaction. This is mainly due to the growing online market in the current society. People shop online and carry out numerous operations on a daily basis. The emergence of cryptocurrency aimed at minimizing the exploitation of online customers from being overcharged by the middlemen.  The system, however, requires a series of record management technique that is decentralized. These are digital ledgers that are protected with cryptology encryption. The chain contains a series of blocks that secures and stores data relating to the transaction of each. The information is then stored permanently after being recorded and for later use and cannot be altered by a third party. The system is robust, transparent and incorruptible. Hence, the technology behind this system has gained so much attention worldwide. Why Implement Restricted Measures In Transactional Data Storage No person should be trusted with another person’s transactional data. Human beings will always act in self-interest. This has become the main motivating factor for blockchain sites advocating for implementation of blockchain system. The private key cryptography is the reason why bitcoin and cryptocurrencies were successful. Each user of the blockchain system has a secure transactional key that allows them to access their transactional data. Any other person can not manipulate the key. The key is also assigned to the user with a personal login signature. The signature is approved by all peers in the network for a transaction to take place. This system of encryption ensures data does not fall into fraudulent hands providing ultimate security. Trends In Blockchain technology Banks and Financial Institutions are trying to implement blockchain data storage technology into their systems to secure transactional data and track their financial activities at an optimum level. Financial institutions are already applying the system boost of unhackable systems. Various industries are also trying to create a reliable environment for their operations through creating unaltered systems that cannot be hacked or manipulated. Thus creating a perfect environment for forecasting and planning of their activities in the most secure manner. Get Inspired Innovation Business 0 Shares +0 Share on 0 Shares +0 Share on Share on Trending Now Trending Stories How Managed IT Services Benefit the Manufacturing Industry Arts and Social perception Google Doodle today celebrates the start of spring Ecommerce Mistakes That Make Your Users Abandon Your Website Daily Capsule Meesho turns unicorn, Swiggy raises mega round Read the full story Latest Updates from around the world Arts and Social perception How To Monitor Employees' Productivity? Art and environment Google Doodle today celebrates the start of spring A New CMO Role: Leveraging an Organization’s Purpose for Strategic Advantage How to accelerate Digital Business in 2021 Didn't find what you were looking for? Search for what you want, categories, tags, keywords, authors, events, anything under YourStory SEARCH Topics Tech Reviews Growth Hacks Government And Legal About Advertise with us About Meet the team Report an issue Contact Us Work with us Events © 2021 YourStory Media Pvt. Ltd. Privacy Policy v2.3.036 Built with ♥ in India 
work_2livftbyzjb6lpqq5643orum6e	----	Edinburgh Research Explorer Restorative justice informed criminal justice social work and probation services Citation for published version: Kirkwood, S & Hamad, R 2019, 'Restorative justice informed criminal justice social work and probation services', Probation Journal, vol. 66, no. 4, pp. 398-415. https://doi.org/10.1177/0264550519880595 Digital Object Identifier (DOI): 10.1177/0264550519880595 Link: Link to publication record in Edinburgh Research Explorer Document Version: Peer reviewed version Published In: Probation Journal Publisher Rights Statement: The final version of this paper has been published in Probation Journal, Vol/Issue, Month/Year by SAGE Publications Ltd, All rights reserved. © Steve Kirkwood, Rania Hamad, 2019. It is available at: https://doi.org/10.1177/0264550519880595 General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1177/0264550519880595 https://doi.org/10.1177/0264550519880595 https://www.research.ed.ac.uk/portal/en/publications/restorative-justice-informed-criminal-justice-social-work-and-probation-services(b29a33da-c577-4c85-a365-900ebac7579e).html 1 Restorative justice informed criminal justice social work Steve Kirkwood & Rania Hamad The University of Edinburgh Citation Kirkwood, S. & Hamad, R. (In press). Restorative justice informed criminal justice social work. Probation Journal. Abstract Despite the growth of restorative justice research, theory and practice, little work has explored its implications for criminal justice social work and probation services. Our analysis demonstrates a restorative justice ‘lens’ transforms the view of criminal justice social work, enlarging the scope to help people make amends for harm, magnifying the role for victims of crime, refocusing on the meaningfulness of reparative acts, and clarifying the role of communities in reintegration. Our vision of restorative justice informed criminal justice social work offers a way of shifting practice to help people repair harm, make good and move on with their lives. Corresponding author Dr Steve Kirkwood The University of Edinburgh Chrystal Macmillan Building 15a George Square Edinburgh EH8 9LD United Kingdom Email: s.kirkwood@ed.ac.uk Funding This research received no specific grant from any funding agency in the public, commercial, or not- for-profit sectors. Declaration of conflicting interests The Authors declare that there is no conflict of interest. Acknowledgements We would like to thank John Devaney, Jenny Johnstone and the reviewers for their helpful comments on early drafts of this article. mailto:s.kirkwood@ed.ac.uk 2 A new lens Howard Zehr (1991) described restorative justice (RJ) as a lens. Looking through this lens, you see crime as a form of harm to people and relationships. You also see the needs and obligations that harm creates, such as the need to get answers and the obligation to take responsibility for your actions. From this perspective, the best way of repairing harm is for people to talk to each other about what happened, about the effects it had, and about what could be done to set things right. For the person who caused the harm, this allows them to apologise for their behaviour, make amends, and commit themselves to going straight. For the person who was harmed, they can tell their story of how they were hurt, learn why it happened, be recognised for their inherent worth, and say what they think the other person should do to make good. Everyone has an opportunity to be heard, learn, and rebuild trust. In most jurisdictions, this is not the standard response to crime. In Scotland in 2016/17, almost half of the people convicted in court received a financial penalty; 14% were imprisoned and 20% received a community sentence (Scottish Government, 2018a). Even though Scotland (along with England and Wales) has the highest imprisonment rate in Western Europe (World Prison Brief, 2018), more people are supervised in the community than locked up in prison. In the age of ‘mass probation’ (Phelps, 2016), the number of people on community sentences greatly outnumbers those sentenced to prison in many jurisdictions around the world (McNeill and Beyens, 2014). It is therefore surprising that, despite the mounting evidence for the effectiveness of RJ (e.g., Strang et al., 2013), few people have considered what the RJ perspective reveals about the nature and possibilities for criminal justice social work (CJSW)1. We invite you to view CJSW through the RJ lens and examine how it unveils, magnifies or distorts aspects of existing practice. The RJ perspective sees crime in a different light. From this viewpoint, the nature of crime is different, with corresponding principles, processes and intended outcomes for responding to crime. Rather than treating crime as a breach of rules against the state, crime is seen as a form of harm inflicted on one person by another, damaging relationships between them and communities (Zehr, 1991). For RJ, responses to crime ought to focus on mending these relationships. Participation should be voluntary, as this empowers people to take responsibility for their actions and make choices about their future. The process should focus on dialogue, efforts to come to a mutual agreement, and include symbolic and practical steps to address the harm. The intended outcomes are to bring back moral responsibility to the person who committed the harm, restore a sense of control and dignity to the person who was harmed, and reassert trusting relationships with the community (Morris, 2002). However, definitions of RJ are contested (Wood and Suzuki, 2016). ‘Purist’ definitions of RJ describe it primarily as a process, focusing on dialogue between those affected by crime (e.g., McCold, 2000) whereas ‘maximalist’ definitions are broader, encompassing a range of processes aimed at achieving restorative outcomes (Walgrave, 2000). Here, we take Zehr's (1991) view of RJ as a perspective on crime and justice, in order to re-vision CJSW, while paying special attention to RJ as a ‘justice mechanism’ involving dialogue between those responsible for and harmed by crime (Daly, 2016). Our argument is that viewing CJSW from the perspective of RJ supports the development of RJ practices and processes (especially dialogue among those affected by crime) and the realignment of CJSW as a system to better achieve restorative outcomes. 1 Throughout this article, ‘criminal justice social work’ (CJSW) refers to those services responsible for supervising people on community sentences or on licence following imprisonment (sometimes referred to as ‘probation services’ or ‘community corrections’). 3 Ward and Moreton (2008) suggest that the concept of ‘moral repair’ helps conceptualise the role of responding to offending behaviour. Walker (2006: 6) defined moral repair as ‘the process of moving from the situation of loss and damage to a situation where some degree of stability in moral relations is regained.’ She said ‘[r]estorative justice exemplifies moral repair’ (229) as it addresses needs and obligations to repair harm, rebuilds trust and instils hope for positive future relations. For Ward and Moreton, moral repair provides a normative framework for addressing both the harm caused and harm suffered by the person subject to supervision. However, moral repair is not a private matter. For the person responsible for the harm, addressing their moral obligations is a way of bringing them back in line with the smooth functioning of society (London, 2003). For the person harmed, receiving an apology and efforts to make amends allows them to have greater trust in the world they live in and confidence to live in it. As explained by Walker, when someone experiences criminal harm, it not only damages their trust in the person who committed the harm, but may reduce their trust in society more generally, such as the expectation that their home is safe from intruders or that they can walk freely without fear of attack. Therefore, there is a community dimension to the effects of criminal harm and a community interest in responding to it. McCold (2000) provided a model of RJ that includes these three constituents: people responsible for harm; people harmed by crime; and communities affected by crime. He suggested that an intervention could only be considered ‘fully restorative’ if it engages all constituents; interventions are ‘mostly restorative’ if they include two constituents and ‘partly restorative’ if they include one constituent. Interventions that do not include restorative principles are not restorative, or may be ‘pseudo restorative’ if they lay claim to restorative principles but do not enact them (e.g., lay panels that enforce compulsory punishments). We will use McCold's framework with an RJ lens to examine the way CJSW services engage with these different constituents. Criminal justice social work in Scotland We focus on Scotland, a particular case with parallels in other jurisdictions internationally. The consideration of Scotland is particularly pertinent given the recent commitment by the Scottish Government (2018b: 105) to make ‘restorative justice services widely available across Scotland by 2023’. The Scottish Government's (2019: 4) action plan on restorative justice is intended to develop RJ approaches where ‘the needs of persons harmed and their voices are central, and supports a reduction in harmful behaviour across our communities’ (Scottish Government, 2019: 4) and ‘Establish the most effective model for restorative justice in Scotland’ (Scottish Government, 2019: 10). Our article is intended as a constructive contribution to these developments and a reflection on their possible implications. Criminal justice social work (CJSW) in Scotland encompasses the services provided through local authorities by qualified social workers to people subject to the criminal justice system (Kirkwood, 2018a). The main intended outcomes of CJSW are: ‘Community safety and public protection’, ‘The reduction of re-offending’ and ‘Social inclusion to support desistance from offending’ (Scottish Government, 2010b: 15). The services supervise people on community sentences and those subject to supervision following a period of imprisonment, as well as providing diversion from prosecution services, bail supervision, voluntary throughcare services to support those leaving prison, groupwork programmes, and reports to the courts to help inform sentencing. The main community sentences in Scotland are ‘Community Payback Orders’, which have a supervision requirement and / or a requirement for the individual to undertake an amount of unpaid work, and may have other additional requirements relating to, for instance, drug treatment, alcohol treatment, mental health treatment or conduct (Scottish Government, 2010a). The services work in partnership with other statutory and voluntary agencies in the delivery of community justice services, including the risk management of people convicted of sexual offences or otherwise deemed to pose a high risk of 4 offending. Although CJSW mostly works with people on the grounds of their offending behaviour, it also has a role in relation to people with respect to their experiences as victims of crime (discussed further below). Restoring people responsible for crime One of the main aims of CJSW is to reduce the likelihood of further offending. Social workers achieve this through helping people address issues in their lives that relate to their offending behaviour. This practice is based on empirical research on ‘what works’ for addressing offending behaviour (Bonta and Andrews, 2017) and core correctional skills (Chadwick et al., 2015). Research suggests that, on average, RJ reduces offending behaviour, and therefore it may help achieve this aim (Sherman and Strang, 2007; Strang et al., 2013). The values and principles underpinning RJ are strongly aligned with those underpinning CJSW practice. The now well-established research on key factors that encourage desistance from crime have shaped CJSW in Scotland (Scottish Government, 2010a). Elements such as creating and maintaining positive relationships with service users (sometimes referred to as a ‘therapeutic relationship’ or ‘working alliance’; McNeill, Batchelor, Burnett, & Knox, 2005: 3), characterised by empathy, warmth, respect and genuineness, and utilising a person-centred, collaborative approach to supportively engender change, are all commensurate with the values and skills required for RJ. Communication, counselling, engagement, and inter-personal skills, as well as a non-judgemental approach and conveying a genuine sense of acceptance of the person, are viewed as crucial for CJSW (McNeill et al., 2005; Trotter, 2014) and these skills are clearly transferable to RJ practice. However, Ward, Fox and Garber (2015) argued that RJ theory is poorly developed regarding how it reduces offending because it does not really connect with research or theory on rehabilitation. So how might RJ reduce offending? The most influential explanation is Braithwaite's (1989) theory of reintegrative shaming. Braithwaite and Mugford (1994) proposed that RJ contributes to reducing offending through the leverage created by being exposed to victims’ accounts of the harm caused in an environment where the normal defensive mechanisms are removed, through the social pressure created by feeling shame in front of people they care about, and through a supportive response that condemns the harmful act while affirming the individual’s inherent moral worth and assisting them to make positive changes in their life. However, based on their research in England, Robinson and Shapland (2008) argued that the theory does not match the practice. They highlighted that shame tends to be experienced before rather than induced during the RJ meeting, that supporters for the person responsible for the harm are usually absent from RJ meetings, and that mechanisms supporting positive change following an RJ event were weak or inconsistent. Despite this, they still found that RJ tended to reduce the likelihood of further offending (Shapland et al., 2008). They suggest that rather than RJ reducing offending behaviour in the ways described by Braithwaite and Mugford, it is better understood as providing an opportunity to consolidate a decision to desist from further offending (Robinson and Shapland, 2008). Plans that are agreed to voluntarily and through mutual discussion are more likely to be fulfilled than those that are imposed (Latimer et al., 2005; Marshall, 1999). RJ has the potential both to reinforce commitment to the requirements of criminal justice orders (e.g., attendance of supervision meetings, completion of unpaid work hours, engagement in drug treatment programmes) if they are discussed within RJ processes, and identify additional non-compulsory goals (e.g., addressing other issues in a person’s life or seeking employment). When used in combination, the potential of both the restorative and rehabilitative work is maximised (Latimer et al., 2005). Similarly, Ward et al. (2015) suggest that, while it is unclear how RJ contributes to rehabilitation, it has a more obvious role in relation to desistance. One part of desistance involves developing an identity as a moral person (i.e., non-offender) (Maruna, 2001; Paternoster et al., 2016; Rocque et al., 5 2016). Engagement in RJ provides an opportunity for an individual to develop a desistance identity. Together with the person harmed, and other important people in their life, they can write the story of their offending behaviour so it becomes not only a narrative about someone who did wrong, but rather someone who has made steps towards redemption by seeking to understand the harm caused, offering an apology, making amends and taking steps to avoid future harmful behaviour. In so doing, they reinforce a core moral self, demonstrating they understand the wrongfulness of offending behaviour and living this out through forms of reparation. This is not a solitary act; restorative processes allow these understandings to be mutually co-created and reflected back to the person by people who matter: the victim, family, friends and (potentially) community representatives. The development of a desistance narrative may help the person to desist from offending behaviour through structuring and giving meaning to their behaviour in ways that reinforce pro-social behaviour (Maruna and Farrall, 2004). It also provides a narrative that may be acceptable to the wider community, potentially facilitating their reintegration in society. Reintegration is a further aim of CJSW; like rehabilitation (McNeill, 2009), it can be treated instrumentally, as a contributor towards reducing offending (e.g., the positive influence of having a good job and positive friendships), or as an end itself. As argued by Maruna (2006), ‘restorative re- integration’ should be community-led, reparation-based, symbolically rich and involve ‘wiping the slate clean’. RJ may help by reconciling people with their communities through making amends for the harm they have caused. This allows them to be, and to be seen to be, a person who accepts the moral wrongness of criminal harm and has taken steps towards making things right. This is most important for the direct victim of the crime, but it extends to others, such as family, friends, professionals and other members of society. As argued by Duff (2003), such reconciliation is not one- way; it may also involve the community or wider society taking some responsibility for harms the individual has suffered and taking steps to address these. RJ may be a springboard for engaging in generative activities, such paid or voluntary work, which helps them to be contributing citizens and cement a commitment to a pro-social life (Kirkwood and McNeill, 2015). Restoring people harmed by crime Peering through the RJ lens, what does CJSW engagement (and non-engagement) with victims of crime look like? In Scotland, CJSW services are intended to ‘to promote and assist the development of services to the victims of crime’ (Scottish Government, 2004). Interventions with people responsible for offending behaviour are intended to increase their understanding of the impact of crime and protect past and potential victims from harm; however, ‘Case managers would not normally contact victims direct (except for domestic abuse offences […])’ (Scottish Government, 2010a: 19). This means that work is done on behalf of actual and imagined victims, but usually without their direct involvement. Nils Christie (1977) argued professionals ‘steal’ the opportunity to deal with the crime from the person it concerns the most: the victim. The way CJSW is configured and operates, victims are largely excluded. From an RJ perspective, CJSW should support victims of crime to take part in a process of dialogue, if they so wish, so they can tell the person responsible for the crime about the effects of the harm, pose questions and receive answers about how and why the crime occurred, voice their opinion on what could be done to address the harm and reduce the likelihood of it reoccurring, and (perhaps) receive symbolic and material reparation. Restoration here does not mean returning to a state that existed before the crime. In the words of Walker (2006: 37), ‘no bell can be unrung’. However, if the victims’ needs are not addressed, further harm is done and the wounds may remain without healing (Walker, 2006). In this context, RJ is intended to restore feelings of security, self-respect, dignity and control to the victim (Morris, 2002). Pemberton, Aarten and Mulder (2018) argue that crime harms victims’ sense of agency (i.e., control over their lives) and communion (i.e., relationships with others). They suggest that RJ gives people a 6 sense of control through inviting them to co-author the narrative of the crime. When the person responsible for the offence takes responsibility and addresses fears about re-victimisation, the victim may feel more control and less fear (Pemberton, 2007; Strang et al., 2013). As argued by Walker, this has the potential to rebuild trust and instil hope, not just in terms of the relationship between the victim and the person responsible for the offence (indeed, they may have been unknown to each other before the offence and may never meet again), but in the wider sense of feeling safer in society and more optimistic about a less harmful future. If victims of crime are to engage with CJSW agencies, they will need to be reassured of the impartiality of such services (Armstrong, 2012). To what extent are CJSW practitioners able to be, and be seen to be, impartial? RJ practitioners must avoid conflicts of interest. Someone who is in a supervisory role to the individual responsible for an offence may struggle to remain impartial as a facilitator for an RJ process involving that individual. For the victim, they may also have concerns about a practitioner’s ability to be impartial if they have obligations in the role of supervisor. Ward, Gannon and Fortune (2015) suggest that an RJ perspective helps to resolve the role conflicts within the CJSW role, specifically in terms of obligations to the person responsible for the offence, the victim and wider society. They suggest that, because RJ focuses on repairing relationships, it allows practitioners to consider how they can help address the harm in relation to all constituents. Drawing on the concept of moral repair, they argue that, where obligations are in direct conflict, practitioners’ obligations are to the victim. However, this perspective also requires practitioners to address the victimisation needs of the person who was responsible for the offence (Ward and Moreton, 2008), and therefore encourages a trauma-informed response (Anderson, 2016). Practitioners must also consider the support provided to victims before, during, and following RJ processes. The consequences of victimisation and the nature of RJ processes mean that victims may require relatively intensive and ongoing support in some cases, including specialist counselling or psychological services, which may be absent or difficult to access (Thomson, 2017; Whyte and Kearney, 2017). As explained by Chapman and Chapman (2016: 142), based on experience in Northern Ireland, RJ ‘may have a therapeutic outcome but it is not therapy’. The development of RJ brings greater attention to the unmet needs of victims of crime, presenting opportunities for CJSW services to work in partnership with victim support services to seek or lobby for additional resources to support them. Although RJ is used in response to domestic abuse and sexual offences (Daly, 2006; Koss, 2014; McGlynn et al., 2012), its use in this regard remains controversial. As discussed by Roach (2000), concern for the use of RJ with victims of sexual offences and domestic abuse is understandable for several reasons: feminist organisations have fought hard to have sexual offences and domestic abuse recognised as serious crimes in many parts of the world, and they may be concerned that diverting such offences from prosecution to RJ would signal that these crimes are not serious; certain sexual offences and domestic abuse may involve forms of apology as part of the abuse cycle, therefore there is a concern that RJ may unintentionally facilitate the abusive behaviour rather than help address it; and there is a general wish to protect victims of such offences in particular from experiences that may cause further harm or disrupt processes of recovery. Many victims of sexual offences are children, which raises serious concerns about power dynamics. Indeed, Scottish Government (2017) guidance states that RJ would not normally be used in relation to sexual offences, domestic abuse, harassment or stalking, and practitioners working with such offences require specialised knowledge and skill. However, excluding domestic abuse and sexual offence from RJ may be counterproductive. If victims of such crimes wish to participate in RJ, then it would violate principles of equity to prevent them from taking part. Moreover, as women are more likely to be victims of such crimes, it would have a 7 particular effect in terms of discriminating against women participating in RJ. Given that part of recovery from crime may be regaining one’s independence, autonomy, choice, and control, denying participation may actually form part of the disempowering aspects of being a victim of crime, in the same way that standard court processes can be disempowering for such victims. Having due respect for victims of crime means properly assessing the risks; but the presence of risks should not mean the denial of access to RJ. Therefore, if RJ is going to be provided in response to crime in general, then it should also be provided in relation to sexual offences and domestic abuse. However, this is not the same as saying that diversion from prosecution is appropriate in relation to such offences; most CJSW work takes place post-conviction, and policies on diversion should be considered as a separate, although related, issue. Small-scale survey research has found support for the provision of RJ to those harmed by sexual offences, especially as an addition to (rather than instead of) going to court (Marsh and Wager, 2015). The research evidence, from the UK, Australia, New Zealand and USA, shows that RJ can be applied to sexual offences in ways that are safe, helpful and empowering (Daly, 2006; Koss, 2014; McGlynn et al., 2012). Counterintuitively, there are good arguments for CJSW services providing RJ in relation to domestic abuse. Although CJSW services in Scotland do not normally provide services directly to victims of crime, they do provide support to partners, former partners and children of men convicted of domestic abuse as part of the Caledonian System (Macrae, 2014). Practitioners have therefore developed expertise in supporting people harmed by domestic abuse. Research by Sen, Morris, Burford, Featherstone and Webb (2018) illustrates that social work services may struggle to provide appropriate interventions where families affected by domestic abuse remain together. There are many reasons why people responsible for or harmed by domestic abuse have ongoing communication and RJ is a way of responding to the needs of people in this situation; practitioners are knowledgeable on the nature of domestic abuse and capable of supporting those affected. Of all crime types, CJSW services are best placed to use RJ in relation to domestic abuse, given their arrangements and expertise for responding to such offences and supporting the victims and children. Nonetheless, when considering the use of RJ with domestic abuse, it will be vital to take the different ‘types’ of domestic abuse into account. Coercive control, whereby the perpetrator employs a range of tactics to exert power and control over partners or former partners (Johnson 2010), would require a great deal of caution in relation to utilising RJ in such circumstances, necessitating a robust assessment of suitability and joint working with children’s and partner services. To this end, the introduction of the Safe and Together™ Model of responding to domestic abuse may align with the use of RJ as part of an overall process of change. This model, premised on male perpetrator’s patterns of coercive control, advocates the greater inclusion of perpetrators of domestic abuse in child protection assessments, procedures, and social work interventions, engaging and working holistically with both parents and holding men accountable as parents and partners for the abuse and its effects (Mandel and Rankin, 2018). Joint training in Safe and Together™ involving CJSW, Caledonian workers, and Children and Families Social Work services has been rolled out across some local authorities in Scotland. ‘Situational couple violence’ does not typically involve either partner attempting to gain control over the relationship, with episodes of violence usually sparked by conflict situations; nonetheless, serious violence and harm can still occur (Johnson, 2008), and any proposed RJ interventions would similarly require robust assessment and skilled management in deciding on the appropriateness of the intervention. Restoring communities From an RJ perspective, what is the role of CJSW in relation to communities? Recent developments in many jurisdictions internationally, including Scotland, England and Wales, emphasise community 8 engagement in CJSW. For instance, the Community Empowerment (Scotland) Act 2015 places a duty on local authorities to take community perspectives into account when designing and delivering public services. This includes partnership working in the creation and management of ‘community justice’ services. As explained by Maglione (2018), these ‘third-way’ or ‘hybrid’ approaches to justice, connecting state and community relations, are compatible with an RJ orientation that encourages participation and empowerment among community members in the delivery of justice. Weaver (2011) describes RJ as a personalised response to crime that places the main stakeholders (the person responsible for the offence, the victim and the community) at the centre of the process. However, McCold (2004) argues that RJ and community justice have some similarities, but important differences. He suggests community justice often involves expanding the criminal justice process to include community representatives, without necessarily involving the person responsible for the offence and the direct victim. The Community Justice (Scotland) Act 2016 requires community justice partners to co-operate in the delivery of criminal justice services in the community. These partners include CJSW, the police, the courts and a range of other statutory and third sector bodies. The emphasis on community justice, which is connected to the wider reform of social services in order to increase community participation (Christie, 2011), could include the greater provision of RJ services and higher levels of inclusion among those responsible for and affected by crime regarding the response to crime; indeed, victim involvement is a form of community engagement. For public services to move beyond formal state representatives in justice processes, to include lay representatives of the community, we must reimagine existing models of community partnership. McCold (2000) describes three main groups from the ‘community’ that could be represented in restorative processes: 1) ‘secondary victims’ who have suffered via their personal relationship with the person responsible for the offence or the victim; 2) ‘communities of support’, which includes people who care about one of the people but were not harmed by the offence; and 3) representatives from the local community who do not personally know the individuals, but have a more general concern about crime in the locality. These three groups will have different needs and reasons for being involved in restorative processes. Secondary victims may have their own legitimate grievances that ought to be addressed through the restorative processes whereas people representing a community of support may take part to aid the person responsible for or harmed by the offence. It may also be appropriate to have a representative from a ‘community of interest’. For instance, if the offence was racially motivated, the representative could be from the victim’s ethnic group; if the victim was targeted due to their sexuality, then a representative from a group by and for people who are gay or bisexual may be appropriate. Ultimately, the people affected by the offence should have some say in which communities best represent them. Any of these community representatives could play a role in helping the person with processes of integration and change (e.g., in terms of providing ongoing personal support or connecting with employment opportunities). Braithwaite and Mugford (1994) suggest that RJ stands a greater chance of facilitating desistance from crime if the people who take part are known to the person responsible for the offence. What exactly is the purpose of involving community representatives? Rosenblatt (2018: 294) identifies three roles for community in RJ: 1. it should have a say in what reparation the offender should undergo to restore the victimised community; 2. as the victimised community, it should benefit from this reparation; 3. and it should be able to support the reintegration of offenders into the community as positive, contributing members. However, in her examination of community involvement in ‘youth offender panels’ in England and Wales, she found that community representatives tended not to bring creative ideas to the discussion of reparation and they were less well placed than the professionals to support 9 participants with reintegration. Crawford (2002) suggested that community involvement in RJ could improve civil society’s response to crime; however, he highlighted that managerial and procedural constraints on youth offender panels limited this potential. In Northern Ireland, Chapman (2012) illustrated that community restorative justice could be effective if it was defined as ‘the skilful facilitation of restorative processes rather than the management and control of outcomes’, drawing on the assets of community-based facilitators while resisting the colonisation of processes by the state. CJSW practitioners ought to consider the value and potential of including community representation in restorative processes, but be aware that involvement does not ensure that restorative outcomes will occur. Discussion: Restorative Justice Informed Criminal Justice Social Work In her role as a criminal justice social worker in Scotland, the second author has come across men and women who wish to offer an apology and explain their actions to the people they have harmed. They are currently unable to do so because no mechanism exists for facilitating this contact in this jurisdiction. If we apply an RJ perspective to CJSW, particularly the roles of supervising people on community sentences or on licence following imprisonment, how does this transform our views of these practices? We argue the aim of supervision is re-envisioned to include helping people reflect on ways of making amends. Practice is magnified to include facilitating dialogue between people responsible for harm and the people they have harmed. The focus on reparative acts is recalibrated so that the potential for relevant and meaningful gestures are examined and supported. Reintegration is viewed as a process of reconciling an individual with their community. Reflecting on making amends A restorative approach to CJSW would include an explicit consideration of what it means to make amends for offending behaviour. This goes beyond the sentence. It is not the punishment forced upon the individual. It involves the person responsible for the harm voluntarily considering what it means to make up for their harmful acts. As moral repair (Walker, 2006; Ward and Moreton, 2008), the person responsible for the offence would consider what they could say or do to make amends. While the primary focus would be on the main offence, it could include other criminal (and non- criminal) harm they caused or suffered. The practice would be trauma-informed, recognising wrongs where they lay, while encouraging personal responsibility and with an eye to the future. In Scotland, the four ‘interventions’ of CJSW are restrictions, rehabilitation, reparation and reintegration (Scottish Government, 2010a); to these it would add ‘restoration’. This ‘partly-restorative’ groundwork could provide the basis for dialogue with the person harmed. Facilitating dialogue In bringing an RJ perspective, the biggest change to CJSW practice would be direct engagement with victims of crime and facilitating dialogue between them and the people who harmed them. Duff (2003: 181) argues that ‘probation officers’ should act as ‘mediators between offenders, victims and the wider community’. As argued by Daniels (2013: 304), this would require a ‘recalibration of focus to include the victim.’ This would be a significant extension of the nature and reach of CJSW services, requiring new knowledge and skills. However, as we have argued, this would be a logical extension, building on much of the values and expertise that social workers already possess. By increasing the field of vision to include victims of crime, CJSW services would no longer be limited to working on behalf of victims (and potential future victims), but directly working with victims. For the person under supervision, this dialogue becomes an opportunity to learn about the harm they have caused, apologise and offer to make amends. For the person harmed, they are able to ask questions, hear answers, discuss and agree what should be done to make things right, and forgive if they wish. The 10 outcomes of this discussion become raw material for the parallel processes of desistance from crime and recovery from harm. The victim’s words become a tool for breaking through defence mechanisms that downplay the extent or culpability of the harm caused. Practitioners can point to the person’s voluntary engagement in RJ, and the victim’s recognition of their good intentions, to reaffirm their moral orientation. They can remind the person of the commitments they have made as a way to keep them on track. For the victim, having the person take responsibility for the offence could be used in therapeutic interventions to reduce self-blame. Their involvement in RJ can be used by practitioners supporting the victim to illustrate their empowerment and help them reimagine a future that is less dominated by the person who did them wrong. Meaningful reparation Bazemore and Maloney (1994: 30) outlined principles for unpaid work informed by RJ: 1. Ensure that the service meets a clearly defined need and that this need is obvious to offenders 2. The service activity should at least symbolically link offender with offense and victims, and, whenever possible, community service should be performed in the offender's neighborhood 3. The activity should bring offender and conventional adults together 4. Probation staff and community service supervisors should view offenders as resources and focus on outcomes 5. Involve offenders in planning and executing projects 6. Provide for a sense of accomplishment, closure, and community recognition Unpaid work as it currently operates in Scotland could meet all of these principles, and may meet them in some cases already. However, research on the use of unpaid work suggests that that consultation with communities is fragmented, that the benefits are not routinely communicated to the public, and that most unpaid work involves group cleaning, repair activities or workshop placements (Scottish Government, 2015), all of which limits its potential to meet these principles. Older research by Curran, MacQueen, Whyte and Boyle (2007) highlighted the challenges of making unpaid work relevant to the original offence, meaningful as a way of making amends or productive in terms of developing skills. McIvor (2016) emphasises that unpaid work has a greater impact on attitudes and behaviours related to offending when the people undertaking it feel it is rewarding, when they gain skills by it and when they see the benefits it provides to others. A restorative approach to unpaid work would involve greater effort to make the work undertaken meaningful in relation to the original offence and beneficial for those undertaking it, victims of crime and communities. Reintegration as reconciliation McNeill (2012) argued there are four forms of rehabilitation: personal, social, moral and legal. CJSW focuses on the personal dimensions; the individual and psychological risks, needs and strengths that relate to offending behaviour. It may also address social dimensions, such as helping someone change or extend their social relationships. RJ processes and reparative tasks can address the moral dimensions, as people reflect on and make amends for the harm caused. Legal rehabilitation means ensuring that punishment ends, permitting people to move on with their lives, and even performing ‘reintegration rituals’ that formally recognise the individual has made amends for their offence and is welcomed back into society (Maruna, 2011). This perspective highlights that reintegration is two- way; the onus is not only on the person who committed the offence, but there are also obligations among others in society (Kirkwood and McNeill, 2015). Reintegration is therefore also reconciliation; sometimes between the person who committed the offence and those they directly harmed, but also with wider social circles and society as a whole. A restorative approach to reintegration means engaging with these wider needs and obligations. 11 Bazemore (1998) describes this process as ‘earned redemption’: those who have done wrong should make amends, and those who have made amends should be supported back into society. RJ can help do this through engaging with the micro communities relevant to individuals, such as family and friends, who can participate in constructive dialogue and become part of the process of reintegration. Victims of crime and community representatives can provide symbolic or practical gestures of reintegration, such as saying they appreciate an apology, recognising the value of reparations made, emphasising the potential they see in the individual’s future, rebuilding damaged relationships, creating friendships, or connecting with volunteering and employment opportunities. This process becomes part of the practical and symbolic process of desistance, as someone is supported to overcome barriers to change, build hope, identify a pro-social identity for themselves and have this potential recognised by others (McNeill, 2006). Final remarks Although we focused on the specific case of Scotland, we expect that there will be similarities in other jurisdictions internationally, although the detail how of such services operate will vary. Viewing criminal justice social work through an RJ lens allows us to see how it could be changed in ways that extend its ability to achieve existing aims and enhance its role in relation to victims of crime and communities. CJSW could therefore incorporate greater RJ processes and practices – especially the facilitation of dialogue between those responsible and harmed by crime – as well as shifting the whole system in the direction of restorative outcomes. However, introducing greater RJ processes into the criminal justice system has the potential to add additional burdens onto those subject to criminal justice, threatening principles of proportionality (Ashworth, 2002; Masson and Österman, 2017). This can be managed through the appropriate use of RJ within diversion from prosecution, pre-sentencing and post-sentencing processes (Kirkwood, 2018b). Within diversion, RJ can be used as an alternative to more burdensome or punitive responses. In pre-sentencing, an RJ process could inform the sentence, with sentencers ensuring outcomes remain proportionate. While people are on community sentences or supervision, voluntary engagement in RJ processes could take the place of some existing activities. Specifically, in Scotland, those sentenced to a Community Payback Order with a requirement to undertake unpaid work can spend some of this time on ‘other activities’, which could be RJ processes, without adding to the overall time spent completing the order (Kirkwood, 2018b). However, the institutionalisation of RJ can lead to problems, particularly the corruption and dilution of processes (Wood and Suzuki, 2016); therefore any expansion in the use of RJ needs to be monitored to ensure it is ethical, safe and effective. As stated by Daniels (2013), the overall intention is to shift practice a bit further along the RJ continuum. 12 References Anderson SE (2016) The value of ‘bearing witness’ to desistance. Probation Journal 63(4): 408–424. DOI: 10.1177/0264550516664146. Armstrong J (2012) Factors Contributing to Victims’ Satisfaction with Restorative Justice Practice: A Qualitative Examination. British Journal of Community Justice 10(2): 39–54. Ashworth A (2002) Responsibilities, rights and restorative justice. British Journal of Criminology 42(3): 578–595. DOI: 10.1093/bjc/42.3.578. Bazemore G (1998) Restorative Justice and Earned Redemption. American Behavioral Scientist 41(6): 768–813. DOI: 10.1177/0002764298041006003. Bazemore G and Maloney D (1994) Rehabilitating Community Service Toward Restorative Service Sanctions in a Balanced Justice System. Federal Probation 58: 24–35. Bonta J and Andrews DA (2017) The Psychology of Criminal Conduct. 6th ed. New York: Routledge. Braithwaite J (1989) Crime, Shame and Reintegration. New York: Cambridge University Press. Braithwaite J and Mugford S (1994) Conditions of successful reintegration ceremonies: Dealing with juvenile offenders. British Journal of Criminology 34(2): 139–171. DOI: 10.1111/j.1745- 9133.2012.00786.x. Chadwick N, Dewolf A and Serin R (2015) Effectively Training Community Supervision Officers: A Meta-Analytic Review of the Impact on Offender Outcome. Criminal Justice and Behavior 42(10): 977–989. DOI: 10.1177/0093854815595661. Chapman T (2012) The Problem of Community in a Justice System in Transition: The Case of Community Restorative Justice in Northern Ireland. International Criminal Law Review 12(3): 573–588. DOI: 10.1163/157181212x648815. Chapman T and Chapman A (2016) Forgiveness in restorative justice: Experienced but not heard? Oxford Journal of Law and Religion 5(1): 135–152. DOI: 10.1093/ojlr/rwv066. Christie C (2011) Commission on the future delivery of public services. Available at: http://www.gov.scot/Resource/Doc/352649/0118638.pdf. Christie N (1977) Conflicts as property. British Journal of Criminology 17(1): 1–15. Crawford A (2002) Recent Developments in Restorative Justice for Young People in England and Wales: Community Participation and Representation. British Journal of Criminology 42(3): 476– 495. DOI: 10.1093/bjc/42.3.476. Curran J, MacQueen S, Whyte B, et al. (2007) ‘Forced to make amends’: An evaluation of the community reparation order pilots. Edinburgh. Available at: http://www.sccjr.ac.uk/wp- content/uploads/2010/01/Forced_to_make_amends.pdf. Daly K (2006) Restorative justice and sexual assault: An archival study of court and conference cases. British Journal of Criminology 46(2): 334–356. DOI: 10.1093/bjc/azi071. Daly K (2016) What is Restorative Justice? Fresh Answers to a Vexed Question. Victims & Offenders 11(1): 9–29. DOI: 10.1080/15564886.2015.1107797. Daniels G (2013) Restorative justice: Changing the paradigm. Probation Journal 60(3): 302–315. DOI: 10.1177/0264550513493370. Duff RA (2003) Probation, Punishment And Restorative Justice: Should Al Turism Be Engaged in Punishment? The Howard Journal 42(2): 181–197. Johnson MP (2008) A Typology of Domestic Violence: Intimate Terrorism, Violent Resistance, and Situational Couple Violence. Boston: Northeastern University Press. Kirkwood S (2018a) Criminal Justice Social Work. In: Cree VE and Smith M (eds) Social Work in a Changing Scotland. New York: Routledge, pp. 141–150. Kirkwood S (2018b) Iriss insight: Restorative Justice. Glasgow. DOI: 10.4135/9781452229300.n1601. Kirkwood S and McNeill F (2015) Integration and reintegration: Comparing pathways to citizenship through asylum and criminal justice. Criminology and Criminal Justice 15(5): 511–526. Available at: http://crj.sagepub.com/content/15/5/511. Koss MP (2014) The RESTORE Program of Restorative Justice for Sex Crimes: Vision, Process, and 13 Outcomes. Journal of Interpersonal Violence 29(9): 1623–1660. DOI: 10.1177/0886260513511537. Latimer J, Dowden C and Muise D (2005) The Effectiveness of Restorative Justice Practices: A Meta- Analysis. The Prison Journal 85(2): 127–144. DOI: 10.1177/0032885505276969. London R (2003) The restoration of trust: Bringing restorative justice from the margins to the mainstream. Criminal Justice Studies 16(3): 175–195. DOI: 10.1080/0888431032000151844. Macrae R (2014) The Caledonian System: An integrated approach to address men’s domestic violence and to improve the lives of women, children and men. Ending Men’s Violence Against Women and Children (Autumn): 37–58. Maglione G (2018) The political rationality of restorative justice. Theoretical Criminology. DOI: 10.1177/1362480618756364. Mandel D and Rankin H (2018) Working with Men as Parents: Becoming Father-Inclusive to Improve Child Welfare Outcomes in Domestic Violence Cases. Columbus, OH: Family and Youth Law Center, Capital University Law School. Marsh F and Wager NM (2015) Restorative justice in cases of sexual violence: Exploring the views of the public and survivors. Probation Journal 62(4): 336–356. DOI: 10.1177/0264550515619571. Marshall T (1999) Restorative Justice: An overview. London. Maruna S (2001) Making Good: How Ex-Convicts Reform and Rebuild Their Lives. Washington DC, USA: American Psychological Association. Maruna S (2006) Who Owns Resettlement? Towards Restorative Re-Integration. British Journal of Community Justice 4(2): 23–34. Maruna S (2011) Reentry as a rite of passage. Punishment and Society 13(1): 3–28. DOI: 10.1177/1462474510385641. Maruna S and Farrall S (2004) Desistance from crime: A theoretical reformulation. Kölner Zeitschrift für Soziologie und Sozialpsychologie 43: 171–194. Masson I and Österman L (2017) Working with female offenders in restorative justice frameworks. Probation Journal 64(4): 354–371. DOI: 10.1177/0264550517728784. McCold P (2000) Toward a holistic vision of restorative juvenile justice: A reply to the Maximalist model. Contemporary Justice Review 3(4): 357–414. McCold P (2004) Paradigm Muddle: The Threat to Restorative Justice Posed by Its Merger with Community Justice. Contemporary Justice Review 7(1): 13–35. DOI: 10.1080/1028258042000211987. McGlynn C, Westmarland N and Godden N (2012) ‘I Just Wanted Him to Hear Me’: Sexual Violence and the Possibilities of Restorative Justice. Journal of Law and Society 39(2): 213–240. DOI: 10.1111/j.1467-6478.2012.00579.x. McIvor G (2016) What Is the Impact of Community Service? In: McNeill F, Durnescu I, and Butter R (eds) Probation: 12 Essential Questions. London: Palgrave Macmillan, pp. 107–128. McNeill F (2006) A desistance paradigm for offender management. Criminology and Criminal Justice 6(1): 39–62. DOI: 10.1177/1748895806060666. McNeill F (2009) What works and what’s just? European Journal of Probation 1(1): 21–40. DOI: 10.1177/206622030900100103. McNeill F (2012) Four forms of ‘offender’ rehabilitation: Towards an interdisciplinary perspective. Legal and Criminological Psychology 17(1): 18–36. DOI: 10.1111/j.2044-8333.2011.02039.x. McNeill F and Beyens K (2014) Offender Supervision in Europe. McNeill F and Beyens K (eds). Basingstoke, UK: Palgrave Macmillan. McNeill F, Batchelor S, Burnett R, et al. (2005) 21st Century Social Work: Reducing Re-Offending: Key Practice Skills. Social Work. Edinburgh: Scottish Executive. Available at: http://eprints.gla.ac.uk/33796/. Morris A (2002) Critiquing the Critics: A Brief Response to Critics of Restorative Justice. British Journal of Criminology 42(3): 596–615. DOI: 10.1093/bjc/42.3.596. Paternoster R, Bachman R, Kerrison E, et al. (2016) Desistance from crime and identity: An empirical 14 test with survival time. Criminal Justice and Behavior 43(9): 1204–1224. DOI: 10.1177/0093854816651905. Pemberton A (2007) Taking Victims Seriously in Restorative Justice. International Perspectives in Victimology 3(1): 4–14. Pemberton A, Aarten PG and Mulder E (2018) Stories as property: Narrative ownership as a key concept in victims’ experiences with criminal justice. Criminology & Criminal Justice. DOI: 10.1177/1748895818778320. Phelps MS (2016) Mass probation: Toward a more robust theory of state variation in punishment. Punishment & Society 19(1): 53–73. DOI: 10.1177/1462474516649174. Roach K (2000) Changing punishment at the turn of the century: Restorative justice on the rise. Canadian Journal of Criminology 42: 249–280. Robinson G and Shapland J (2008) Reducing recidivism: A task for restorative justice? British Journal of Criminology 48(3): 337–358. DOI: 10.1093/bjc/azn002. Rocque M, Posick C and Paternoster R (2016) Identities through time: An exploration of identity change as a cause of desistance. Justice Quarterly 33(1). Routledge: 45–72. DOI: 10.1080/07418825.2014.894111. Rosenblatt FF (2018) Community involvement in restorative justice: lessons from an English and Welsh case study on youth offender panels. Restorative Justice: An International Journal 2(3): 280–301. DOI: 10.5235/20504721.2.3.280. Scottish Government (2004) National Objectives for Social Work Services in the Criminal Justice System. Edinburgh. Available at: http://www.gov.scot/Publications/2004/12/20471/49284. Scottish Government (2010a) National Outcomes and Standards for Social Work Services in the Criminal Justice System: Community Payback Orders Practice Guidance. Edinburgh. Available at: http://www.gov.scot/Resource/Doc/344043/0114450.pdf. Scottish Government (2010b) National Outcomes and Standards for Social Work Services in the Criminal Justice System. Edinburgh: The Scottish Government. Available at: http://www.gov.scot/resource/doc/925/0103556.pdf. Scottish Government (2015) Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences. Available at: http://www.gov.scot/Resource/0047/00472126.pdf. Scottish Government (2017) Guidance for the Delivery of Restorative Justice in Scotland. Edinburgh. Available at: http://www.gov.scot/Publications/2017/10/8454. Scottish Government (2018a) Criminal Proceedings in Scotland, 2016-17. Edinburgh. Available at: https://gov.scot/Publications/2018/02/7427. Scottish Government (2018b) Delivering for Today, Investing for Tomorrow: The Government’s Programme for Scotland 2018-19. Edinburgh: Scottish Government. Available at: https://beta.gov.scot/publications/delivering-today-investing-tomorrow-governments- programme-scotland-2018-19/. Scottish Government (2019) Restorative justice action plan. Edinburgh. Available at: https://www.gov.scot/publications/restorative-justice-action-plan/. Sen R, Morris K, Burford G, et al. (2018) ‘When you’re sitting in the room with two people one of whom… has bashed the hell out of the other’: Possibilities and challenges in the use of FGCs and restorative approaches following domestic violence. Children and Youth Services Review 88: 441–449. DOI: 10.1016/j.childyouth.2018.03.027. Shapland J, Atkinson A, Atkinson H, et al. (2008) Does restorative justice affect reconviction?: The fourth report from the evaluation of three schemes. Sherman LW and Strang H (2007) Restorative justice: The evidence. London. Available at: http://www.iirp.edu/pdf/RJ_full_report.pdf. Strang H, Sherman LW, Mayo-Wilson E, et al. (2013) Restorative justice conferencing (RJC) using face-to-face meetings of offenders and victims: Effects on offender recidivism and victim satisfaction: A systematic review. Oslo. DOI: 10.4073/csr.2013.12. 15 Thomson L (2017) Review of Victim Care in the Justice Sector in Scotland. Trotter C (2014) Working with Involuntary Clients: A Guide to Practice. 3rd ed. Abingdon, Oxon, UK: Routledge. Walgrave L (2000) How pure can a maximalist approach to restorative justice remain? Or can a purist model of restorative justice become maximalist? Contemporary Justice Review 3(4): 415–432. Walker MU (2006) Moral Repair: Reconstructing Moral Relations after Wrongdoing. Cambridge: Cambridge University Press. Ward T and Moreton G (2008) Moral Repair With Offenders. Sexual Abuse: A Journal of Research and Treatment 20(3): 305–322. DOI: 10.1177/1079063208322423. Ward T, Gannon TA and Fortune C-A (2015) Restorative Justice–Informed Moral Acquaintance: Resolving the Dual Role Problem in Correctional and Forensic Practice. Criminal Justice and Behavior 42(1): 45–57. DOI: 10.1177/0093854814550026. Ward T, Fox KJ and Garber M (2015) Restorative justice, offender rehabilitation and desistance. Restorative Justice 2(1): 24–42. DOI: 10.5235/20504721.2.1.24. Weaver B (2011) Co-Producing Community Justice: The Transformative Potential of Personalisation for Penal Sanctions. British Journal of Social Work 41: 1038–1057. Whyte B and Kearney N (2017) Peacebuilding and RiSC: Elements of a Scottish model for restorative practices in serious crime. Scottish Justice Matters 5(1): 11–12. Wood WR and Suzuki M (2016) Four Challenges in the Future of Restorative Justice. Victims & Offenders 11(1). Routledge: 149–172. DOI: 10.1080/15564886.2016.1145610. World Prison Brief (2018) Highest to lowest prison population rate. Available at: http://prisonstudies.org/highest-to-lowest/prison_population_rate (accessed 27 July 2018). Zehr H (1991) Changing Lenses: New Focus for Crime and Justice. Scottsdale, PA: Herald Press. 
work_2mpqjp5cjjgtxfrz5zrf5qt3s4	----	Training police for procedural justice Wesley G. Skogan & Maarten Van Craen & Cari Hennessy # Springer Science+Business Media Dordrecht 2014 Abstract Objectives This paper reports the findings of an evaluation of a police training program on the principles of procedural justice. This training was part of a larger organizational change strategy aimed at improving the relationship between the police and the public in Chicago. Methods The paper reports on the findings of two studies. The short-term effects study was a quasi-experimental test of the immediate effectiveness of the training conducted at the police academy. A longer-term effects study examined the subsequent views of trainees and a comparison group, officers who had not yet been to training. Statistical controls were used to increase confidence in the findings of the second study, which was based on observational data. Results In the short term, training increased officer support for all of the procedural justice dimensions included in the experiment. Post-training, officers were more likely to endorse the importance of giving citizens a voice, granting them dignity and respect, demonstrating neutrality, and (with the least enthusiasm) trusting them to do the right thing. All of the effects of training were strong, with standardized effect sizes ranging from 1.2 to 1.6. Longer-term, officers who had attended the procedural justice work- shop continued to be more supportive of three of the four procedural justice principles introduced in training; the effect of training on trust was not statistically significant. Conclusions There has been little systematic research on police training. This paper concludes that it can play a role in improving police–community relations. It also presents a discussion of some of the limitations of a training-based organizational change strategy. J Exp Criminol DOI 10.1007/s11292-014-9223-6 W. G. Skogan (*): C. Hennessy Institute for Policy Research, Northwestern University, 2040 Sheridan Road, Evanston, IL, USA e-mail: skogan@northwestern.edu C. Hennessy e-mail: cari.hennessy@northwestern.edu M. Van Craen Leuven Institute of Criminology (LINC), University of Leuven, Hooverplein 10, 3000 Leuven, Belgium e-mail: maarten.vancraen@law.kuleuven.be Author's personal copy Keywords Quasi-experiment . Survey. Police training . Procedural justice . Neutrality. Respect . Voice . Trust A very large body of research has demonstrated the importance of procedural justice in shaping the legitimacy of police in the eyes of the public. We know that the public is concerned that police decisions are made fairly and evenhandedly, that citizens are treated respectfully and given a chance to voice their views, and that officers are thought to abide by the rules that govern their behavior (for reports of research and reviews see Jackson et al. 2013; Mazerolle et al. 2013a; Murphy et al. 2008; Tyler and Jackson 2013). However, there has been almost no research at all regarding how the police can be encouraged to incorporate the principles of procedural justice in their routine interactions with the public. This project examined an initiative by the Chicago Police Department to reshape its relationship with the community by training officers in the principles of procedural justice. Training began in mid-2012 and concluded in September 2013. In total, about 8,700 serving officers, 230 new recruits, many of the department’s civilian employees, and some community members involved in policing issues were trained. The research team conducted two studies evaluating this effort. The shorter-term effects study was a quasi-experimental test of the immediate effectiveness of the training conducted at the academy. A longer-term effects study followed, with inter- views of trainees and a comparison group, officers who had not yet been to training. Statistical controls were used to increase confidence in the findings of the long-term effects study. In addition, we monitored training sessions and interviewed trainers, trainees, and program developers. In the shorter term, training increased officer support for all of the procedural justice dimensions included in the experiment. Post-training, they were more likely to endorse the importance of giving citizens a voice, granting them dignity and respect, demon- strating neutrality, and (with the least enthusiasm) trusting them to do the right thing. All of the effects of training were strong, based on standardized effect size measures. Longer-term, officers who had attended the procedural justice workshop continued to be more supportive of three of the four procedural justice principles introduced in training, compared to officers who had not yet been sent to training. Background on police training We know virtually nothing about the short- or long-term effects associated with police training of any type. A committee established by the National Research Council to evaluate the state of policing in the United States found that there were “scarcely more than a handful of studies” on the effects of training, and that police training and education were being offered without scientific evidence of their likely effects. The panel concluded “[T]he committee cannot overstate the importance of developing a comprehensive and scientifically rigorous program to learn what is and is not effective in the education and training of police officers” (Skogan and Frydl 2004: 154). There has not been much progress in the decade since that report appeared. Police depart- ments themselves often distribute post-training questionnaires that evaluate practical W.G. Skogan et al. Author's personal copy aspects of the class and the capabilities of the trainers, and they occasionally report “before-and-after” studies of a training class. External researchers have done a bit better, but the volume, quality, and generality of evaluation work on police training has been low. Wheller and Morris’ (2010) review of research on training for the UK National Police Improvement Agency casts a very wide net, incorporating systematic studies of training for “professionals” of all kinds, but did not find much outside the domain of clinical training for health professionals. They located no published exper- imental studies of police training; however, they missed Rosenbaum’s (1987) experi- mental study of training police recruits in how to better handle crime victims. He randomized new recruits into training or an alternative control activity and later assessed their attitudes and behavioral intentions. Virtually no research of any flavor has been done on procedural justice training, despite this being a necessary precursor to turning the theory into practice. The Mazerolle et al. (2013a) systematic review of procedural justice and police legitimacy alludes to the important role that training could play, but did not report a single training study. However, since that time, Wheller et al. (2013) released the findings of an experimental study of procedural justice training. Officers from the Greater Manchester Police Service were randomly assigned to treatment or control groups in order to determine the impact of training on the perceived quality of interactions between the police and crime victims. The training program incorporated elements of procedural justice theory. The evaluation identified positive shifts on four of eight police attitudinal outcomes, and positive effects on trained officers’ scores in role-playing exercises. The perceptions of crime victims who later were served by trained and control-group officers also differed on some measures. In addition, a randomized trial involving police breath-testing roadblocks conducted by Mazerolle et al. (2013b) can be viewed as a test of the ability of officers to follow scripts that activate perceptions of procedural justice during encounters with the public, when they are briefed on how to do so. Chicago’s training program The training program was developed internally, by sworn members of the department’s training staff. The impetus for this effort came from the top of the organization, when a new chief of police arrived with a commitment to imbue his department with the principles of procedural justice. At his initiative, members of the training staff worked with academics (at another university) to develop an outline for a training program. Based on this preliminary plan, the staff identified concepts and findings from the research literature that they could translate into training units. They used the Internet to locate video clips and images that would illustrate key points. Their goal was to present procedural justice principles to officers as tactics that would encourage the public to recognize the police as a legitimate source of authority, resulting in improved officer safety, more compliance with their instructions, and greater cooperation from the public. The training involved officers from every unit of the department. As it progressed, the units sent just a few officers to training each day, so participants trickled into the academy rather than arriving in related batches. Classes of at most 25 officers met with Training police for procedural justice Author's personal copy rotating teams of three trainers for day-long sessions. Unusually for this organization, the classes mixed employees of various ranks, although they attended in civilian clothing to soften the impact of this heterogeneity. Multiple classes were conducted on two shifts; morning watch officers began at 7:00 am, and afternoon and evening watch officers at 3:30 pm, Mondays through Thursdays. The trainers came from diverse backgrounds, and many were working in the field when they were recruited for the job. They had the credible street experience that they needed to convince officers that they knew what they were talking about, and to overcome resistance from those suspecting that the trainers had grown out of touch while working at the academy. The training modules The training day was divided into five modules. Each featured lectures accompanied by PowerPoint slides, video clips, and group exercises. Module 1 introduced the ideas of procedural justice and legitimacy, and how they intersect with the goals of policing. In the ensuing slides and discussion (which the trainers noted were based on research), procedural justice was defined as treating citizens fairly and with respect as human beings. Legitimacy was described as what the police receive in return: a public that views them as entitled to exercise authority in order to maintain order, manage conflicts, and resolve problems in the community. Module 2 featured a discussion of cynicism. This was added to the curriculum in response to issues that arose during the first month of training. A discussion topic was whether cynicism is actually “realism,” or if it exaggerates the actual situation facing officers and serves to drive a wedge between them and the public. During this module, half of the table groups discussed and recorded their views on the question, “What does the community expect from police officers?” The other half of the table groups considered the question, “What do police officers expect from the community?” Module 3 included a more in-depth discussion of procedural justice, and featured research findings from Chicago as well as other cities that supported trainers’ claims about the importance of the components of procedural justice. Most slides also stressed one of the major selling points of the training day, which was that following these principles would ultimately benefit police officers by increasing citizen cooperation, encouraging the public to comply with police instruc- tions, and maximizing officer safety. Module 4 began with a discussion of race and policing in historical context, both in Chicago and around the country. In interviews, the trainers indicated that discussing the role of race in policing proved to be the second hardest “sell” in the curriculum, following only having to convince officers that “legitimacy” should be one of their personal concerns. One trainer described this experience: On the [course] evaluation, somebody said the only thing that I did was show white officers beating up on black people. And I thought that I failed, because if that’s the only thing you remember in 8 h, then I did something wrong. Near the end of module 4 the trainers introduced the idea that there can be a “balance of trade” between police and the community. They argued that good encounters with W.G. Skogan et al. Author's personal copy the police are “deposits” and bad encounters are “withdrawals” from the account balance that they have developed with the community. The final module was a wrapping-up exercise. Participants viewed and discussed a video of a drug arrest in which the officer calmly, politely, and successfully took both a street dealer and his customer into custody. Then, going around the room, each table made a statement about what they had learned in the class. The short-term effects of training The short-term training study introduced a modest quasi-experiment into the routine of the academy. It contrasted the views of officers who took the survey before they began their training with the attitudes of officers who completed the survey at the conclusion of their session. The calendar date was used to assign classes to treatment (after) or control (before) status. Questionnaires were distributed before the class began on odd- numbered days (for example, December 3), and at the end of the class on even- numbered days. The odd-day and even-day questionnaires were identical except for their colors (blue or white), which helped the instructors track their proper administra- tion. As an implementation check, a question on the survey asked trainees if they had completed the questionnaire before or after the session. To enhance compliance with procedures, we ensured that, from the beginning, trainers understood that this was an evaluation of training and not trainers. The study materials did not identify which trainers had conducted a class. One class was misassigned to take the survey after training instead of before, but it was retained in its improper category for this intention- to-treat analysis. Because assignment was by classroom, we examined differences between “be- fore” classes and “after” classes at the classroom level. Over the study period December 2012 to May 2013 the odd-even approach to allocating classrooms created groups that were very similar in terms of their measured characteristics. Table 1 describes some features of the data. In total, 2,681 officers completed the survey (another 0.6 % chose not to participate); they participated in 133 classes, with 67 surveyed before training and 66 after training. The participants split 51–49 % between the two groups. The survey questioned respondents about just two personal factors, their age and the unit in the department to which they were assigned; these questions were included in order to confirm that the treatment and control groups were similar. Table 1 presents the mean and median ages of the treatment and control groups, and the percentage of each group that was assigned to the agency’s patrol division, which is by far the largest. Differences between them proved to be very small and they were not statistically significant. Table 1 Participation in the classroom experiment Number of officers Number of classrooms Mean age Median age Percent in patrol Treatment 1,392 66 42.3 42.5 89.8 Control 1,289 67 42.1 41.8 89.7 Training police for procedural justice Author's personal copy Measuring procedural justice The survey included questions regarding officers’ views of their relationship with the public. Because of time constraints the questionnaires had to be very short; we promised the training academy that it would be one extended page in length. A section at the beginning described the survey and its purpose, and reminded trainees of their rights as human subjects. Officers indicated their assent by continuing on to complete the questionnaire, but they were not required to do so (this section was approved by the university’s human subjects committee). The survey next presented officers with statements to which they could respond, using four point response scales that ranged from “agree strongly” and “agree” to “disagree” and “disagree strongly.” The statements were designed to reflect four procedural justice concepts that were emphasized at training (for an extensive discus- sion of these dimensions see Hinds and Murphy 2007, and Bradford 2011). How to address them in this study was an open question. Most procedural justice research has focused on the public’s view of the police, and almost all procedural justice research involving the police has asked how they are being treated by their own organizations and leaders (see, for example, Tyler et al. 2007). By contrast, measuring officers’ views of how they should be treating members of the public, using questions reflecting the dimensions of procedural justice theory, was unexplored territory. The lack of a research tradition in this area required the evaluation team to craft new questions that promised to address the components of the theory. The questions had to be phrased in ways that generated variance in officers’ responses. Some of the assertions were stated in such a way that agreement indicated support for procedural justice principles, while others called for disagreement by those who supported this view. This strategy was used to keep them alert to the content of the questions. The questions assigned to each dimension were also scattered throughout the survey, to discourage inattentive responses. The study team had to wait until the survey was complete to set the item responses that were measuring the attitudinal dimension. Responses to multiple questions were combined to create scale scores when they were single factored, and these factors explained a large proportion of the variance in the combined items. Neutrality calls for consistency and even-handedness in decision making across persons (equal treatment for all) and across time (the same procedures are followed every time). Neutral decisions are reasoned, objective and factually driven, and they respect rules and legal principles. In training, officers were encouraged to make it clear to those they encountered that they were acting in this way. Neutrality was measured by responses to four statements: “It is important to give everyone a good reason why we are stopping them, even if there is no need,” “If people ask why we are treating them as we are, we should stop and explain,” “When dealing with citizens’ concerns, officers need to explain what will happen next, when they are done at the scene,” and “It is very important that officers appear neutral in their application of legal rules.” Responses to these statements were correlated an average of +.34. The Alpha reliability for this scale was .68. Voice (sometimes this is referred to as “participation”) involves giving citizens an opportunity to describe their situation and express their opinions about a problem (to “tell their side of the story”) while officers are deciding what to do. Voice was measured W.G. Skogan et al. Author's personal copy by responses to two statements: “Listening and talking to people is a good way to take charge of situations,” and “Officers need to show an honest interest in what people have to say, even if it is not going to change anything.” The items in the summary voice scale were correlated an average of +.36, and the Alpha reliability for the resulting scale was .53. Respect encompasses treating citizens with dignity, acting politely, and granting them other routine interactional signs of respect. Because they are police officers, it is also important that they evidence concern about respecting people’s rights, Respect was measured by responses to three statements: “People should be treated with respect regardless of their attitude,” “Officers should at all times treat people they encounter with dignity and respect,” and “It is important that we remind people they have rights and that we appear to follow them.” The items in the summary respect scale were correlated an average of +.40. The Alpha reliability for this scale was .69. Trust is evidenced when officers treat citizens as if they can be trusted to do the right thing and demonstrate that they are acting on behalf of the best interests of the people they are dealing with. Trust was measured by responses to: “Police have enough trust in the public for them to work together effectively,” and “Officers should treat citizens as if they can be trusted to do the right thing.” Responses to these statements were correlated +.30. The Alpha reliability for this scale was .46. Results of study 1 The statistical findings are summarized in Table 2. The results were positive; there were substantial differences between the treatment and control classrooms for all four dimensions of procedural justice. Table 2 presents mean scale scores and their standard deviations for all four measures, for both treatment conditions. All of the differences described there were statistically significant. The table presents standardized effect sizes (Cohen’s d) that ranged from 1.4 to 1.6. Effect sizes in this range were classified as “strong” by Cohen (1988: 287 and Table 8.2.2). Lipsey (1990) seconded this classification, based on his meta-analysis of 186 meta-analyses of intervention studies. The table also reports correlations between treatment and outcome (Eta Squared); these ranged from .34 to .45, which Cohen translated as signaling a “large” effect. Finally, Table 2 also summarizes the results of a multi-level analysis—the percentage of the variance in the outcome measures that was explained by classroom-level treatment or control status. These ranged from 6 to 10 %, and all were statistically significant. The effects of training can also be seen in the data. Figure 1 compares treatment and control classrooms on the scores created by combining responses to the questions measuring each procedural justice concept. Each symbol in Fig. 1 represents the data for a classroom in the study, divided into treatment and control groups. The “before” dots illustrate average scores for the 67 classrooms surveyed before training, while the “after” dots identify averages for the 66 post-training classes. The dots have been randomly “jittered” to the left and right, in order to visually expose any overlapping class scores. The regression lines presented in Fig. 1 pass through the means of each cluster, highlighting differences between the groups. Officers were most supportive of citizens’ right to exercise voice. They gave the highest endorsement to the view that “Listening and talking to people is a good way Training police for procedural justice Author's personal copy to take charge of situations”; 48 % agreed strongly with this statement. This position reflects very practical police wisdom regarding how they can get through their day safely, and the trainers frequently reminded officers of the safety benefits of adopting procedural justice approaches to dealing with the public. Classroom scores on the composite measure of participation are presented at the right of Fig. 1, and they were the highest both before and after training. As Fig. 1 illustrates, support for citizen participation went up, on average, following training. Table 2 Summary of experimental findings Mean Standard deviation Significance Cohen’s d eta squared Classroom level R-sq Neutrality Treatment 3.1846 .12277 .00 1.60 .40 9 % Control 2.9908 .1177 Respect Treatment 3.1492 .14700 .00 1.49 .36 8 % Control 2.9331 .14338 Trust Treatment 2.7995 .17898 .00 1.65 .41 10 % Control 2.5217 .15634 Voice Treatment 3.3325 .11764 .00 1.42 .34 6 % Control 3.1635 .12032 66 treatment and 67 control classrooms in every comparison Fig. 1 Four dimensions of procedural justice, before and after training W.G. Skogan et al. Author's personal copy In class, officers expressed the least enthusiasm for the procedural justice concept of “trust.” The classroom-level trust scores presented in Fig. 1 are visibly lower than support for the other procedural justice concepts in this group. Officers were most supportive of the view that “Officers should treat citizens as if they can be trusted to do the right thing”; 23 % agreed strongly with this statement. On the other hand, 57 % disagreed with the view that “Police have enough trust in the public for them to work together effectively.” However, before-after differences in trust resembled those for the other dimensions of procedural justice, and the average difference between the two groups was statistically significant. Notably, the largest gain scores (the differences between the treatment and control groups) were for trust; this can also be seen in the more sharply sloping regression line linking the before and after means for trust. Reflecting this, the standardized measure of treatment effect was the largest for trust. Officers’ views of trust may have increased the most because they were relatively low to start with, lending more room for improvement. Between trust and voice lay measures of neutrality and respect. For neutrality, officers gave the most support to the view that “It is very important that officers appear neutral in their application of legal rules”; 33 % agreed with this statement. On the other hand, only 13 % agreed strongly with the view that “When dealing with citizens’ concerns, officers need to explain what will happen next, when they are done at the scene.” However, the correspondence between officers’ reactions to all four statements measuring neutrality was strong; the correlation between the most and least supported views was +.47. The effect of training on officers’ views of neutrality was the second strongest in this set, based on the Cohen’s d reported in Table 2. When it came to support for the concept of treating citizens with respect, only 15 % agreed strongly that “People should be treated with respect regardless of their attitude.” In contrast, 40 % endorsed strongly the idea that “Officers should at all times treat people they encounter with dignity and respect.” Although these were the most divergent items, these responses were correlated +.49. The composite respect measure also shifted significantly between experimental and control classrooms, in response to training. In summary, we found that training increased officer support for all of the procedural justice dimensions measured in the experiment. Post-training they were more likely to endorse the importance of giving citizens a voice, granting them dignity and respect, demonstrating their neutrality and placing some trust in the good intentions of the public. The longer-term effects of training The next question was, did the effects of training persist post-classroom? Studies conducted in police training academies have tracked officers’ views of community policing, and they do not portend well in this regard. In a typical tracking study, Haarr (2001) distributed questionnaires to police recruits over the course of their early career. She found they grew more positive about community policing and problem solving during their stay at the training academy, but that this support began to dissipate during their field training. Their views grew less positive still during their subsequent proba- tionary period. Training police for procedural justice Author's personal copy To probe the persistence question, the longer-term effects of training were examined in a survey of randomly selected officers. This survey began well into the training period, so that some responding officers would have attended training but others would have not yet been sent. A question in the survey identified those who had already participated in the procedural justice workshop and those who had not yet attended. This measure was used, along with statistical adjustments, to examine training-related differences in officers’ views of procedural justice. The survey The survey was conducted in each of the city’s 22 police district stations. At each station we randomly selected Police Officers (the bottom rank) and Sergeants in fixed proportions from the current duty roster. They were also spread proportion- ally across shifts. Sampled employees were notified of their opportunity to participate in the survey through an administrative sergeant. Roll call presenta- tions, flyers, and wall posters, and an offer of coffee and donuts were used to promote participation by those selected, who remained anonymous to the research team until (and if) they appeared. The survey was presented to respondents on laptop computers that the research team set up in stationhouse conference rooms. This ensured that no one could hear their responses to the questions, and that they could proceed at their own pace. The survey included 120 questions, and took at average of 25 min to complete. The survey team made repeat visits to each district, around the clock, until the number of interviews targeted there was completed. The overall response rate was about 28 %. A total of 714 police officers and sergeants were interviewed. The results could be weighted to ensure that the distribution of respondents matched that of the universe of officers serving in the districts, but doing so did not change any of the results presented here. Therefore, the original, unweighted results are presented. Assessing the impact of training In the district survey, 67 % of those interviewed indicated that they had attended “the all-day training workshop on procedural justice and legitimacy at the Acad- emy.” Because of the timing of the district survey, officers could have participated in the workshop as long as 10 months in the past, or as recently as the week before; the timing of their involvement is unknown. This raises the possibility that factors having to do with how early in the queue officers were sent to training could be confounded with any effects of the training itself on their views. This is a real possibility in any non-randomized research on training, if trainees are volun- teers, chosen for their special characteristics, or even selected for their presumed readiness for training. If this is the case, factors related to their selection, rather than the training they received, could account for their later enthusiasm for the topic. However, there are reasons not to fear this kind of contamination here. Officers in the control group identified in the district survey differed because they had not yet been trained; instead, they were further back in the queue. They were not volunteers; the goal of the process was to train everyone, especially in the patrol division. The bureaucratic process that sent daily quotas of officers to W.G. Skogan et al. Author's personal copy training was quite indifferent to their personal characteristics. By design, each district was instructed to send just a few officers to training each day, so partic- ipants trickled into the Academy rather than arriving in related batches. Officers whose turn was to come later, after the follow-up study was completed, were serving in the same districts and working the same shifts as those somewhat closer to the head of the line. As an additional precaution, we also used propensity score adjustment to further control for possible measured sources of selection bias. They all were factors that could not have been affected by training. The list of potential selection factors included personal background factors such as race, gender, education, age, prior military service, rank, and watch assignment. The selection model also included crime and workload measures and community characteristics for the areas where they worked (we knew this from the survey). Interactions between these factors were also explored, in order to enhance the fit of the selection model. Any influences of dummy variables representing the 22 police districts were included in calculating the propensity score as well. A Wald test and examination of the residuals indicated that a complementary log-log link logistic model pro- vided the best fit to the data. The model fitting was done in R, using GLM. The result was a propensity score reflecting the likelihood that each respondent had attended training because of their personal characteristics and features of where they worked. It summarizes the apparent effects of all of the likely measured correlates of attending training in one control variable. This score was included in the regression analysis presented below, as one of the control factors accounting for measured differences among the officers that potentially were related to their views of procedural justice and participation in training. Measuring procedural justice The district officer survey included questions that were similar to those employed in the training academy questionnaires. Trust was measured by questions about whether citizens could be trusted to do the right thing, if they have good intentions, and (in a reversed item) if it is naïve to trust citizens. Responses to these questions were correlated at average of +.50, and the scale had an Alpha reliability of .75. Voice was measured by responses to the statements “Officers need to show an honest interest in what people have to say, even if it is not going to change anything,” and “Listening and talking to people is a good way to take charge of situations.” Responses to these questions were correlated +.41, and as a combined scale had an Alpha reliability of .58. The importance of treating people with respect was measured by responses to the statements “People should be treated with respect regardless of their respect for the police,” and “People who break the law do not deserve to be treated with respect.” Responses to these questions were correlated +.69, and had a scale reliability of .82. Efforts to demonstrate neutrality were assessed by responses to the statements “It is necessary to give everyone a good reason why they are being stopped, even if it is not required,” and “If people ask why they are being treated like they are, it is necessary to stop and explain.” Responses to these were correlated +.47, and the scale had an Alpha reliability of .64. These positively and negatively worded items were mingled among questions on many other topics, to encourage respondents to pay attention to each. Training police for procedural justice Author's personal copy Results of study 2 The results of the analysis of the long-term impact of training on officers’ views of procedural justice are summarized in Table 3. The unstandardized regression coefficient associated with participation in training is presented at the top of each column. As noted earlier, it could be important to control for measured selection variables using the propensity score, and the effects of this are taken into account in Table 3 as well; the measure is labeled “selection.” In addition, Table 3 controls for a list of factors that potentially were related to support for procedural justice directly, and not just through any influence they may have had on participation in training. The most important of them was race. Regardless of training, African American officers were more supportive of procedural justice principles than were their white peers. Chicago’s procedural justice training appears to have had a relatively enduring impact on three of the four dimensions of procedural justice included in the short- term experiment. The coefficients associated with training in the first row of Table 3 can be compared in magnitude, and the biggest effect of training was on respect. The propensity score used to model the selection process was not significantly related to any dimension of procedural justice. This reflects the fact that there was not a strong correlation between having attended training and having a high propensity score, because there was no strong measured selection process. In addition, African American officers and officers over age 35 were significantly more likely than others to be supportive of the principle of respect they heard about in training. Training also had significant, positive effects on support for neutrality and voice. Compared to white and Hispanic officers, African Americans were also more likely to endorse evidencing neutrality, and the Table 3 Summary of long-term effects findings Trust Voice Respect Neutrality b sigf b sigf b sigf b sigf Training 0.200 (.06) 0.216 (.00)** 0.418 (.00)** 0.212 (.04)* Selection −0.255 (.33) −0.193 (.29) −0.576 (.06) −0.253 (.29) White 0.166 (.26) −0.019 (.86) −0.326 (.06) −0.120 (.39) Black 0.532 (.00)** 0.171 (.14) 0.526 (.01)** 0.582 (.00)** Latino 0.118 (.50) 0.144 (.24) 0.289 (.16) 0.276 (.08) Age35 0.223 (.01)** 0.125 (.15) 0.283 (.04)* 0.136 (.21) College −0.042 (.67) −0.043 (.53) −0.168 (.15) −0.173 (.05)* Female −0.104 (.34) 0.166 (.03)* 0.163 (.21) −0.073 (.46) Intercept 2.396 (.00)** 3.946 (.00)** 3.180 (.00)** 3.631 (.00)** R-squared .04 .03 .08 .07 *p<.05 **p<.01 W.G. Skogan et al. Author's personal copy principle of voice was also endorsed distinctively by female officers. The coeffi- cient associated with having a college degree was negative in every case, but significantly so in only one comparison. However, in the long run, training does not appear to have had an impact on the willingness of Chicago officers to trust the public. The sign associated with the coefficient estimating the impact of training on trust was in a positive direction, but it was not statistically different from zero. Recall that trust was also the dimension of procedural justice that received the lowest level of support in the short-term training study. The trainers reported that trust was a difficult topic for them to address. As one trainer put it, We’ve been taught to trust nobody, to show less emotion. . . .We come to see everything as bullshit – going to another domestic, going to a beat meeting, going to training. We come to see people as assholes. But in reality, there’s a big population we never come in contact with. It’s the rest of the world. In training, trust was discussed around a slide labeled “Us versus Them.” It proclaimed that “94–97 % of the public is law abiding,” and the lecture and discussion revolved around why police too often believe that most members of the community are troublemakers who do not support the police. In this study, however, the influence of training proved least enduring when it came to trust. The analysis examined other hypotheses that were recommended by our col- laborators at the training academy. One common conjecture was that officers with higher-risk assignments might be less interested in extending the civilities of procedural justice to people they encounter. However, neither a two-question measure of perceived job risk from the survey, nor recorded crime or calls-for- service data for the beats and districts in which our respondents worked, influ- enced their views of procedural justice or interacted with the effects of training. We also heard that officers in high-workload areas might not have the time to listen to what people have to say or to explain things to them, perhaps even if they thought it would be a good idea. But to the contrary, three workload questions on the survey and workload statistics from the city’s emergency call center were also unrelated to officers’ views of procedural justice or to any effect of training. A key finding was the importance of the credibility of training. The trainers were concerned about this. A trainer reported, “One of the biggest criticisms [of training] is, ‘This won’t work in my beat. This won’t work in my district.’” On the other hand, trainers reported that many officers found that the class reflected their experience on the street. A trainer told us, “I’ll get a lot of participants coming to me after class and saying, ‘This is great. This reinforces what I do every day. It’s a refresher. It reminds me what I do on the job.’” The survey captured this concern with questions asking trainees “How practical was the training for working officers?” and “How realistic was the training in reflecting the realities of life on the street?” Overall, about 70 % of trained officers were to some extent positive about these aspects of their training experience. A separate statistical analysis (not detailed here) found that the more credible the training was on either rating dimension, the more impact training had on their views. Training police for procedural justice Author's personal copy Limits of the study There were, of course, many limitations to the studies reported here. Both the experiment and the survey assessed only attitudes or opinions. There was no possibility of matching the survey data to the personnel records of participating respondents, so we did not have the ability to track the influence of training on other measures of their on-the-job behavior. This was one of the great contributions of the Wheller et al. (2013) experiment in Greater Manchester. Rosenbaum’s (1987) findings in this regard provide an important reality check. In a randomized study, he found a shift in the attitudes and behavioral intentions expressed by newly trained police officers concerning how to better handle victims. However, an ensuing telephone survey of actual victims whose responses could be linked to the treatment or control status of their responding officer found that this training had no notable impact on measures of victims’ emotional state, fear, feeling of vulnerability, or crime prevention behavior. The evidentiary contributions of training evaluations will be greatly enhanced when linkages like this can be pursued. Because we found little guidance in past research, the measurement process for these studies necessarily had to involve exploratory scaling of officers’ responses. As a result, some scales—which were already constrained by the required brevity of the training academy questionnaire—did not include many items. The reliability measure Cronbach’s Alpha counts the number of items heavily in its calculations, so it was often relatively low. However, all of the items in the scales were substantially correlated and (when there were more than two) single factored, and—as the discussion of example questions for each scale illustrated—responses to them displayed considerable variation between officers. A limitation of the long-term survey study is that it involved only police officers and sergeants with district assignments. Officers serving in other units, including detectives, organized crime, the narcotics bureau, the traffic division, and other branches of the department were trained at the police academy, but they were not included in the follow-up survey. However, the Bureau of Patrol includes about 82 % of all department personnel, and those currently serving in other units all once served in patrol as well. As a result, findings based on patrol officers could be reflective of Chicago policing in general. Another limitation of the long-term survey project is that—in contrast to the quasi- experimental training study—it used propensity scores and other control variables to adjust for measured differences between trained and untrained district officers. How- ever, the study had the significant advantage of using as a control group not-yet-trained officers serving in the same areas and jobs as those who had already passed through training. As a result, there were no strong measured selection-related differences among them. This, along with the general consistency of the long-term findings with the results of the short-term experiment, increases our confidence in the regression analyses. Nonetheless, there could remain unmeasured differences between trained and not-yet- trained officers that were not accounted for by the selection model. Discussion The first study reported here found that, in the short-term, training increased officer support for all of the procedural justice dimensions included in the experiment. These W.G. Skogan et al. Author's personal copy were voice, respect, neutrality and trust. By our measures, training “moved the needle” among officers, and many held different views when they left the building. The second study explored whether these effects persisted once officers returned to their duties. In a follow-up survey we found that post-training, officers who reported participating were more supportive of three of these dimensions, but were not statistically more likely to endorse the principle of trust. However, training is certainly not the only strategy for redirecting police behavior. Even staff members of the training academy were not sanguine about relying on one day of training to change the organization. In their view, change would at least require follow-up, reinforcement training. At the time of writing this project was still in development. Evaluations of the effectiveness of such new training regimes are required if policing is to claim to be evidence-based with regard to one of its most fundamental organizational processes. However, in the long term, monitoring, supervision, and discipline also have to be part of the behavior change mix. Call centers and help desks listen in on their call takers’ encounters with customers; foremen pace the assembly line; university students complete course-and-teacher evaluation forms. The difficulty is that everything about policing makes officers’ actions on the street hard to penetrate, and police organizations have always struggled to maintain control of their field force. To fill this lacuna, supervisors need to do their jobs: allocating the workload correctly, staying alert for problems, and managing the needs of both employees and the organization. It is probable that supervi- sors need procedural justice training as much as anyone in the organization, but with an eye toward exercising its principles internally rather than externally. Supervisors and their managers set the tone of the work environment, and studies of the effectiveness of training suggest that it is in combination with effective management that training works best. Likewise, randomized experiments in responding to domestic violence demonstrated that careful training and monitoring can control how officers handle cases. In this multi-site project, officers successfully alternated between arrest, counseling and other strategies in handling domestic violence, following assignment rules given to them by researchers (Garner et al. 1995). Research by Mastrofski and Richard Ritti (1996) touching on the effectiveness of training officers to make drunk driving arrests concluded that it depended upon the organizational environment. The training worked better in agencies that mon- itored the arrest practices of their officers and had policies and practices in place that supported and rewarded focusing on DUI cases. In organizations that were not aligned in support of what they said they wanted their officers to do, the amount of training officers received had no influence on their behavior. In Chicago, one mechanism for aligning leadership in the districts with the priorities of top management is CompStat. At CompStat sessions, various administrative statis- tics flash on giant LCD screens as unit commanders are questioned about the short- comings they reveal. There has been discussion about incorporating evidence of the units’ performance in delivering procedurally just service, but to date it has proven difficult to figure out how to do this in any practical way. A central problem with CompStat is the “measuring what matters” issue. There are valued things that we want police to do that are not reflected in the data flow that drives CompStat, and building legitimacy in the community is high on that list. Holding officers to account for the procedural justice they do or do not deliver, and rewarding good service, could be the ultimate key to moving an agency in that direction, but—in Chicago, at least—it is unclear how this could happen. Training police for procedural justice Author's personal copy Acknowledgments This research was supported in part by the John D. and Catherine T. MacArthur Foundation and the Joyce Foundation. The opinions expressed are those of the authors and do not represent the views of Northwestern University or the supporting foundations. Many thanks for the support of the staff of the Chicago Police Education and Training Academy, especially Lt. Bruce Lipman and Sgt. Mark Sedevic. Readers wishing to review the training materials described here should directly contact the Commander of the Chicago Police Training Division, 1300 W Jackson Blvd, Chicago, IL 60607, telephone +1.312.746.8310. References Bradford, B. (2011). Voice, neutrality and respect: use of victim support services, procedural fairness and confidence in the criminal justice system. Criminology & Criminal Justice, 11, 345–366. Cohen, J. (1988). Statistical power analysis for the behavioral sciences (2nd ed.). Hillsdale: Lawrence Erlbaum. Garner, J., Fagan, J., & Maxwell, C. D. (1995). Published findings from the NIJ spouse assault replication program: a critical review. Journal of Quantitative Criminology, 8, 1–29. Haarr, R. N. (2001). The making of a community policing officer: the impact of basic training and occupational socialization on police recruits. Police Quarterly, 4, 402–433. Hinds, L., & Murphy, K. (2007). Public satisfaction with police: using procedural justice to improve police legitimacy. The Australian and New Zealand Journal of Criminology, 40, 27–42. Jackson, J., Bradford, B., Stanko, B., & Hohl, K. (2013). Just authority: Trust in the police in England and Wales. London: Routledge. Lipsey, M. W. (1990). Design sensitivity: Statistical power for experimental research. Newbury Park: Sage. Mastrofski, S. D., & Richard Ritti, R. (1996). Police training and the effects of organization on drunk driving enforcement. Justice Quarterly, 13, 291–320. Mazerolle, L., Bennett, S., Davis, J., Sargeant, E., & Manning, M. (2013a). Procedural justice and police legitimacy: a systematic review of the research evidence. Journal of Experimental Criminology, 9, 245–274. Mazerolle, L., Antrobus, E., Bennett, S., & Tyler, T. R. (2013b). Shaping citizen perceptions of police legitimacy: a randomized field trial of procedural justice. Criminology, 51, 33–63. Murphy, K., Hinds, L., & Fleming, J. (2008). Encouraging public cooperation and support for police. Policing & Society, 18, 136–155. Rosenbaum, D. P. (1987). Coping with victimization: the effects of police intervention on victims’ psycho- logical readjustment. Crime & Delinquency, 33, 502–519. Skogan, W. G., & Frydl, K. (2004). Fairness and effectiveness in policing: The evidence. Washington, DC: National Academies Press. Tyler, T. R., & Jackson, J. (2013). Future challenges in the study of legitimacy and criminal justice. In J. Tankebe & A. Liebling (Eds.), Legitimacy and criminal justice: An international exploration (pp. 83– 102). Oxford: Oxford University Press. Tyler, T. R., Callahan, P. E., & Frost, J. (2007). Armed, and dangerous (?): motivating rule adherence among agents of social control. Law & Society Review, 41, 457–492. Wheller, L., & Morris, J. (2010). Evidence reviews: What works in training, behaviour change and implementing guidance. London: National Police Improvement Agency. Wheller, L., Quinton, P., Fildes, A., & Mills, A. (2013). The greater Manchester police procedural justice training experiment: Technical report. London: The College of Policing. Wesley G. Skogan is a Professor of Political Science and the Institute for Policy Research, Northwestern University. His research focuses on the relationship between police and the community. Maarten Van Craen is postdoctoral researcher at the Leuven Institute of Criminology (Universityof Leuven). His research is supported by the Research Foundation - Flanders (FWO). Van Craen’s research interests include citizens-police relationships and work relationships within police organizations. He published articles in international journals on majority and minority group members’ attitudes toward the police. Currently, he is involved in a comparative research on police attitudes and behavior. Cari Hennessy Postdoctoral Research Associate at the Institute for Policy Research, whereshe studies Chicago’s community policing program. She received her PhD in Political Science from Northwestern University in 2013. W.G. Skogan et al. Author's personal copy Training police for procedural justice Abstract Abstract Abstract Abstract Abstract Background on police training Chicago’s training program The training modules The short-term effects of training Measuring procedural justice Results of study 1 The longer-term effects of training The survey Assessing the impact of training Measuring procedural justice Results of study 2 Limits of the study Discussion References 
work_2sqzzsz7p5h77deewrccjotdj4	----	Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 www.surv-perspect-integr-environ-soc.net/1/39/2008/ © Author(s) 2008. This work is distributed under the Creative Commons Attribution 3.0 License. S u rveys Theories of intergenerational justice: a synopsis A. Gosseries Permanent Research Fellow, Fund for Scientific Research (FRS-FNRS), Chaire Hoover d’éthique économique et sociale, 3, Place Montesquieu – 1348 Louvain-la-Neuve, Belgium Received: 7 March 2008 – Revised: / – Accepted: 20 April 2008 – Published: 15 May 2008 Abstract. In this paper, the author offers a synoptic view of different theories of intergenerational justice, along two dimensions (savings/dissavings) and three modalities (prohibition, authorisation, obligation). After presenting successively the indirect reciprocity, the mutual advantage, the utilitarian and the Lockean ap- proaches, special attention is given to the egalitarian theory of intergenerational justice. Two key differences between the egalitarian view on intergenerational justice and the sufficientarian interpretation of sustainability are highlighted. Keywords. generations, sustainable development, just savings, indirect reciprocity, lockean proviso, Brundt- land, Rawls, justice “(. . . ) comme si l’homme n’était jamais seul, comme s’il avait reçu en partage une matière et une force, offrande qu’il devait à son tour transmettre par l’entremise d’un être ou d’un acte . . . ” (Márai, 1993:164)1 1 Introduction We have been facing threats to our environment and the risk of depletion of natural resources for a very long time. To such an extent, that they even appear to be determining factors in the decline of certain civilisations. One of the explanations given for the collapse of the Easter Island civilisation is re- sources overexploitation (See e.g. Ponting, 1993; Diamond, 2005). Lead poisoning, which is very ancient, is said to have contributed to the fall of Rome (Gilfillan, 1965; Lessler, 1988; Bränvall et al., 2001). Despite technological progress, we remain highly dependent on our environment as well as on natural resources. The scale and the nature of these issues have admittedly evolved over time. Yet, our philosophical theories on justice fall astonishingly short of expectations in attempting to deal with the normative issues raised by en- vironmental and resource depletion problems. Emphasis on Correspondence to: A. P. Gosseries (axel.gosseries@uclouvain.be) 1“as though man were never alone, as though he had inher- ited substance and strength, a gift which he must in turn hand on, through a being or an action’’. the long term, the concept of pollution and the issue of exter- nalities are potent challenges to our attempts at articulating equitable rules for individual behaviour and social organisa- tion. Simultaneously, new concepts are constantly emerging from political and scientific debate, such as “sustainable de- velopment”, “ecological debt”, “degrowth” and “ecological footprint” (See e.g. Maréchal and Quenault, 2005 on the for- mer). They represent as many invitations to revisit de novo the nature of normative issues at stake. In order to do that, these emerging concepts must be retranslated every time into the specific language of each theory of justice. Otherwise, it would be impossible to link environmental and natural re- sources issues with all the other societal challenges we si- multaneously have to cope with in today’s world. The concept of sustainable development is extraordinar- ily fashionable. There is no doubt that a requirement for intergenerational justice constitutes one of its key compo- nents. In fact, its most popular definition is development that “Meets the needs of the present without compromising the ability of future generations to meet their own needs (WCED, 1987:53). Yet, despite the degree of sophistication in evi- dence elsewhere in theories of justice, discussions on sustain- ability devote too little attention to a thorough examination of what intergenerational justice might actually mean. We must, however, underline that several other normative dimensions should also be considered so as to deal exhaustively with en- vironmental matters. Firstly, issues of international or inter- specific equity are crucial also. But local justice (in the geo- graphical sense) or gender issues cannot be neglected either. Published by Copernicus Publications on behalf of the Institut Veolia Environnement. http://creativecommons.org/licenses/by/3.0/ 40 A. Gosseries: Theories of intergenerational justice: a synopsis For some of the environmental challenges, these dimensions are even more significant in practice or conceptually more challenging than the intergenerational dimension in isolation. Furthermore, as we are focusing on the notion of sustain- ability, it is essential to differentiate two issues: “Should “it” endure, and if so, why?” and “Since it probably will endure, how should we go about making sure to do so equitably?”. We can reply to the latter question while sticking to an ag- nostic stance on the former question. This in no way means that we are denying the importance of considering the very possibility that we might all decide to cease having children, and to think about its meaning. This hypothetical situation raises several issues. For example, the very fact that human reproduction would then cease implies the end – a voluntary end in this case – of the human species. Would the actions leading to such an outcome have to be considered immoral? Hans Jonas’ thoughts are often referred to as being central, although we are not in fact inclined to consider that his char- acterisation of the alleged immorality at stake here is entirely plausible (Gosseries, 2004a:18–22). Furthermore, the hypo- thetical case of generalised refusal to have children also puts us in the situation of a “last man” which invites reflection on the moral status of non-human animals (see e.g. Gosseries, 1998:401–405). We should therefore remain aware of the specific niche of the intergenerational dimension so that we do not attempt to force into the subject problems which would best be analysed from other angles. Furthermore, if we focus on the intergen- eration issue, it is essential to compare the treatment pro- posed for environmental problems with what would be pro- posed for other matters which are just as important for inter- generational equity, such as public debt management, fund- ing of pension schemes or passing on a language. This paper aims to demonstrate that justice between generations can be understood in different ways and that some are more robust than others. It also aims to explain why sustainable devel- opment as defined in the Brundtland report (WCED, 1987) is unable to exclude two major kinds of intergenerational in- justice that we propose to highlight. It is up to readers to consider whether the intuitions relating to justice that they would endorse in the intergenerational context are consistent with the intuitions to which they would be committed with respect to similar problems in a strictly intragenerational set- ting. 2 Tool box In view of the scale of environmental issues, it could be very tempting to postulate at the outset that unprecedented con- ceptual challenges should be associated to them, requiring a complete revision of our general theories on justice. We can- not exclude that this might well be the case. However, we intend to work from the opposite assumption and to begin by using as best we can available conceptual resources before exploring whether anything remains unaccounted for, requir- ing the use of a radically new approach. To use an analogy, before coining new words or inventing a new language, let us see whether an existing language – in this case theories of justice – painstakingly constructed by successive generations of practitioners does not already provide sufficient vocabu- lary to deal with the issues in hand. There are different ways in which a layman can be intro- duced in a reasonably intuitive fashion to intergenerational equity issues. One of them is to refer to rules for the use of common spaces by successive users. Consider the metaphor of the uninhabited mountain hut. We can take a certain num- ber of rules commonly found posted in this kind of refuge and use them as points of departure for general theories. The following could be compared: “Please leave the premises clean”, “. . . as clean as you would have liked to find them on arrival” or “. . . as clean as they were when you arrived”. All of these are starting points for theories of intergenerational equity based on different logics and with a different content. Another possible point of entry consists in envisaging the nature of our intergenerational obligations through the prism of concepts of private law, focusing specifically on the idea of property as well as on specific types of contracts. Con- sider the famous native American saying: “Treat the Earth well: it was not given to you by your parents, it was loaned to you by your children. We do not inherit the Earth from our Ancestors, we borrow it from our children”. It refers to a loan contract, the next generation being the lender and the current one the borrower. This is not the only existing pro- posal. Burke (1909–14:§165) refers in general terms to the idea of a partnership “Between those who are living, those who are dead, and those who are to be born”. The Penn- sylvanian constitution (art. 1, §27) uses the idea of common property. Locke (1690 (2003): First Treatise, §88) refers to an idea of joint possession at the overlap. The Japanese con- stitution (art. 97) uses the notion of an intergenerational trust. Jefferson (1789) claims that “The earth belongs in usufruct to the living”. And Jaurès (1902) even worked out a concept of “everlasting mortgage”. We should not exclude that lessons may be learned from a closer look at the potential and limi- tations of each of these proposals. Note that once such a full conceptual clarification has been made, it will be useful to re-translate such findings in the specific language of general theories of justice. Using the mountain hut metaphor or referring to various kinds of contracts or types of rights in rem are helpful forms of introduction to the subject. Yet, they are only partially il- luminating. The approach we intend to use here will be con- structed a little differently. It will compare different philo- sophical theories of justice along two lines. Firstly, only the size of the basket to be passed on to the next genera- tion will be of concern, not its composition. This basket is filled with the components which make up a capital, in the broadest sense of the word. Such capital is not only physical, but also technological, institutional, environmental, cultural, Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 www.surv-perspect-integr-environ-soc.net/1/39/2008/ A. Gosseries: Theories of intergenerational justice: a synopsis 41 relational, etc. We will therefore propose a table to sum- marise the key-conclusions of each of these theories, based on two concepts: generational savings and dissavings. Sav- ings occur (generationally speaking) when one generation transfers to the next a capital (in the extended meaning of the word) which is greater than the one it inherited from the previous generation. Inversely, there are generational dissav- ings whenever one generation transfers to the next a capital which is smaller than the one it inherited. We will then go on linking these two concepts (savings/dissavings) to three modalities: authorisation, prohibition and obligation. This approach may seem both desperately simplistic and excessively quantitative. And yet, the use of the sav- ings/dissavings concepts – on top of the fact that they refer to a very broad understanding of the word “capital” – first of all seek to highlight how much the various theories of justice, as applied to the intergenerational realm, differ from each other both in terms of rationale and of practical implications. Fur- thermore, we certainly do not deny the importance – and the possibility – of a debating on the contents of the basket to be passed on from one generation to the next. This would require more than just weighing the significance of environ- mental assets and comparing them with other requirements, such as those connected to the transmission of special cul- tures or the preservation of mechanisms of solidarity. Even among the environmental questions themselves, selections are also to be made between, for example, dams generating green energy and endangered species, between preserving ar- eas in their natural condition and human intervention to save certain species that are to be found there, etc. (see Gosseries, 1997). Finally, two further points should be noted. On the one hand, since the present paper is intended to provide a syn- opsis, we will not be proceeding with a detailed examination of more applied issues where intergenerational justice mat- ters, such as defining the level of a global cap on CO2 emis- sions, justifying the preservation of biodiversity, or selecting a funding scheme for the dismantling of our nuclear power stations (see respectively: Gosseries, 2006b, 2004a:241–265, 2008). On the other hand, intergenerational justice also raises the issue of our obligations to past generations. This dimen- sion, which we are also not intending to broach in this paper, is present at several levels, including in some the theories presented below. It is also particularly relevant for specific environmental issues, such as the integration of past CO2 emissions in the definition of the current share of obligations to reduce emissions (see Gosseries, 2004b). That being said, let us now consider the crux of the matter. 3 Indirect reciprocity One theory, discussed in particular by Brian Barry (1989), is the indirect reciprocity theory (see de Shalit, 1995:96–99; Gosseries, 2006a). The general idea of reciprocity presup- poses that in the event people are able to do so, they are under an obligation to return to others what they themselves have received from them. In the case of intergenerational justice, one can assume that the idea of reciprocity is sociologically widely endorsed in the public (see Wade-Benzoni, 2002). In its “descending reciprocity” version, it breaks down into two maxims. The first one seeks to explain why we are obligated to the next generation. In this case, it is because we received something from our parents that we must transmit something “in return” to our children’s generation. The intuitive idea can then be accounted for in certain ways in the language of property or more directly as reciprocation for an effort on the part of our parents. But this differs for example from the idea that if we owe our children anything, it is because in fact we are only borrowing what already belongs to them. It also differs from egalitarian logic as we shall see. Regarding the second maxim, it defines the content of our obligations to the next generation. As a result, we find: Descending reciprocity – Justificatory maxim: The current generation owes something to the next generation because it received something from the previous one. – Substantive maxim: The current generation must pass on to the next a capital at least equivalent to the one it inherited from the previous one. For those who associate justice with reciprocity, indirect reciprocity is quite a potent idea. It has the advantage of jus- tifying obligations to people who so far have never given us anything and who may be giving us less in the future than what we will have given them. In the case of direct reci- procity, it is the original benefactor who ends up getting back what he put in, whereas with indirect reciprocity, there is a third party who benefits (in this case: the next generation) instead of the initial benefactor (in this case: the previous generation), giving rise in this way to a chain of obligations. An obvious objection could be that a simple donation cannot in itself justify a return obligation. However, the nature of the moral difficulty arising out of non-reciprocation in this case can be accounted for through reference to the idea of a free-rider, getting a free ride on the intergenerational rail- way without buying his ticket, and therefore taking advan- tage without any counterpart of the sacrifices made by all the preceding generations. What are the obstacles in the way of the indirect descend- ing reciprocity view? Firstly, if we refuse to dissociate the existence of an obligation to the initial benefactor and that of an obligation to the third party beneficiary, the justifica- tory maxim presupposes the idea that we have obligations to past generations, i.e. to the dead. It is in fact those obli- gations which are the source of our obligations to the next generation. However, for a state to justify its sustainable de- velopment policies by reason of obligations to the dead is a www.surv-perspect-integr-environ-soc.net/1/39/2008/ Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 42 A. Gosseries: Theories of intergenerational justice: a synopsis challenge to the liberal requirement of neutrality on the part of the state towards various metaphysical conceptions and views of the good life. It can be demonstrated that such obli- gations to the dead only make sense if it is postulated that the dead do exist in a sense that is morally relevant. Yet, we do not all subscribe to this postulate, which makes it difficult to see it as metaphysically unproblematic (Gosseries, 2004a: chap. 2). Moreover, the justificatory maxim fails to justify the first – be it hypothetical – generation’s intergenerational obliga- tions, because by definition such a first generation did not receive anything from a previous generation. How could we then explain what the problem would if a first genera- tion were to squander from the outset a considerable part of the capital available to it? For that matter, were we to view each generation as a first generation insofar as the goods it invented or discovered are concerned, it would become im- mediately apparent that the present difficulty is necessarily devoid of practical implications. A few other points could be mentioned – such as the diffi- culties encountered by the substantive maxim in case of de- mographic fluctuations. It should also be underlined that de- scending indirect reciprocity is not the only possible form of the idea of reciprocity in the intergenerational realm. For the sake of comprehensiveness, let us also point at the ascending indirect reciprocity idea (relevant for example to explain the logic of pay-as-you-go retirement schemes) as well as at the double reciprocity concept (Cosandey, 2003) which involves direct reciprocity transfers between generations. However, these two alternative forms of intergenerational reciprocity are not directly relevant to the environmental field which con- stitutes our focus point here (Gosseries, 2006a). In any event what really matters in this context, is to em- phasise the need to check whether indirect reciprocity really reflects our intuitions about justice, both intergenerationally and as a component of a general theory of justice. The sim- plest method for such a purpose consists in testing the idea of reciprocity in an intragenerational context. Take for example the case of a person with multiple congenital disabilities. Let us accept the idea that she will give us less in return for what we as a society gave to her – which is not meant to deny the benefits we may of course derive from her company. Given such an example, the limitations of the idea of reciprocity are clear. As regards justification, is it because that person (or someone else) gave (or will give) us something that we feel obliged to care for this dependent person – as a matter of justice? The reply is probably negative for many of us. And on the substantive side, should I measure the dimension of what I owe this disabled person on the basis of what he or she gives me in return? Here again, the answer will be in the negative for many of us. This suggests that for many of us, over and beyond internal consistency difficulties, the idea of reciprocity is not fully capable of reflecting intuitions of justice in general and in the intergenerational context in particular. 4 Mutual advantage The idea of mutual advantage is not very distant from that of reciprocity. Yet, it is not identical, both in logic (what jus- tifies the existence of obligations) and by its demands (for instance, the idea of guaranteeing the promised transfers be- tween actors in a cooperative game). Briefly, a theory of justice based on the idea of mutual advantage has to show that a “rational” agent – i.e. one acting exclusively out of self-interest – will serve his best interest by engaging in a cooperative venture and submitting to certain social rules ac- cordingly. The point therefore is to demonstrate that it is ra- tional – in a narrow sense – to be fair and that rules of justice must be justified by reason of rationality – in this same nar- row sense. In practice, this requires the demonstration that gains may result from cooperation between individuals and that these gains can make every one of us net beneficiaries of such cooperation. In an intergenerational context, we therefore need to check how the idea of cooperation can be transposed. A key diffi- culty in this respect is related to the issue of intergenerational overlap (Gauthier, 1986: chap. IX–6). The fact that not all generations are – not even temporarily – contemporary is a challenge on two counts. Firstly, does this not threaten the very possibility of the benefits of cooperation being mutual? Because if benefits are real but are only in favour of certain generations, so that others are net contributors, a theory of mutual advantage would be incapable of justifying that all generations should submit to a common rule of justice. Re- plying to this question amounts to asking to what extent the possibility of descending benefits (from one generation to the next) and ascending benefits (from one generation to the pre- vious one) depends on these generations overlapping with one another. Furthermore, not only must it be possible for benefits to be mutual, but there must also be a guarantee that the conditions exist for the rule of cooperation to be effec- tively respected by each generation. In this case again, the non-contemporary nature of many generations in respect of each other challenges the possibility of enforcing respect of a given rule of intergenerational transfer. The degree to which a threat of ascending or descending sanctions can remain credible in the absence of intergenerational overlap therefore remains to be ascertained. This twofold challenge is compounded by a further ques- tion: supposing it is possible to construct an intergenerational model in such a way as to successfully address this challenge, there will still be a need to verify what that implies in re- lation to our question on savings and dissavings. It would be perfectly possible to imagine that it is rational for each generation to submit to a rule, which would nevertheless be compatible with a gradual deterioration of the stock of re- sources transferred by each generation to the next. There is an ongoing debate on this point (Heath, 1997; Arrhenius, 1999), but it has not reached a point where clear conclusions can be drawn (see Gauthier, 1986:302–305). It is however Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 www.surv-perspect-integr-environ-soc.net/1/39/2008/ A. Gosseries: Theories of intergenerational justice: a synopsis 43 obvious that any serious attempt at articulating a theory of justice from the angle of mutual advantage cannot elude an in-depth examination of such difficulties. 5 Utilitarianism Let us now explore a very different theory: utilitarianism. It is characterised not only by its preoccupation with people’s welfare (utilitas in Latin) but more particularly with the idea that a fair organisation of society is one which maximises the aggregate welfare of its members (See e.g. Smart and Williams, 1973). This is why we can refer to it as an ag- gregative theory. There are several unsound reasons for crit- icising utilitarianism. Yet, it is entirely true that this theory of justice is not primarily concerned with the distribution of welfare among the members of society. What matters is the size of the welfare pie from which society as a whole will benefit, not the relative size of the pieces of that pie each member will be receiving. Hence, sacrificing entirely the well-being of a few people (to the point for example where they are reduced to slavery) making it possible to maximise society’s well-being as a whole (by the fact that a large por- tion of society would benefit from the slavery imposed on a tiny minority), could be the policy advocated by utilitarians in specific circumstances. Therefore, more than any other theory of justice, this one is likely to lead to sacrificial con- sequences, although in its more elaborate versions, it does try as best it can to avoid such counterintuitive outcomes. In an intergenerational context, there is one fact that plays a crucial role in this respect. Giving up the consumption of part of our capital today may enable us – provided it is wisely invested – to consume much more of that capital at some more or less distant future time. Consider a bag of seeds, part of which could be either consumed immediately or sown so as to multiply its volume. If you are a utilitar- ian, savings (in generational terms) are not just authorised; they are required since the goal is to maximise the size of the intergenerational welfare pie. This means that the first gener- ations in history have to tighten their belts and invest for the benefit of future generations. A point worthy of mention is that the idea of productive investment, which is central to this theory, is not necessarily linked to the number of generations following us – at least for investments whose return does not depend solely on human activity, but rather to the fact that they will be arriving after us. This result leading, in a way, to sacrificing the earlier gen- erations is magnified by two extra – and independent – fac- tors. On the one hand, it is realistic to postulate some in- tergenerational altruism due partly to the fact that the succes- sion of generations is also linked to biological parent-to-child relations which inevitably generate a certain degree of altru- ism. It is also plausible to postulate that this altruism is asym- metric, being stronger from parent to child than from child to parent. If such a descending altruism is taken into account, an extra degree – and in this case a purely voluntary one – of saving may be added to the obligation to save referred to above. In other words, descending altruism could further in- tensify the generational savings trend already present in the utilitarian model. Nevertheless, it does not necessarily lead to an additional welfare differential if the actors themselves derive well-being from these altruistic acts. On the other hand, the utilitarian conclusion becomes more worrying if it is accepted that the number of coming generations is, if not infinite, at least indefinite. For one way of interpreting util- itarianism consists in forcing us into everlasting sacrifices, since there is no way of knowing where they should stop. Such a sacrifice would ultimately be to no one’s benefit, since every generation would be obliged to save given the perma- nent uncertainty as to how many generations would follow. Utilitarians are well aware of this problem. Let us there- fore emphasise two factors pointing in the opposite direc- tion. Firstly, a factor which could attenuate the scope of the obligation to save is diminishing marginal utility, a (fairly plausible) postulate traditionally referred to as a justification for aggregativists’ concern for the distribution of levels of well-being (see Gauthier, 1986:305). The underlying idea is that the more a person has of a given good (e.g. apples), the less an additional good will bring her additional utility. This means that if we have an extra apple, it should be given to the one who has less apples if we aim at maximizing the additional welfare generated by this apple. But more impor- tantly, there is another idea, the one of a social discount rate. This has been the subject of extensive philosophical debate for decades (see e.g. Cowen and Parfit, 1992; Birnbacher, 2003). And one recent instance is to be found in the dis- cussions surrounding the Stern report on the economics of climate change (Stern, 2007). The idea is simple: if the rate is positive, a unit of future welfare will be granted less value than the same welfare unit produced today. A discount rate of this kind can meet certain concerns besides addressing the single “sacrificial” issue mentioned above. For example, it would be possible to give a lower discounted value to a fu- ture welfare unit because of the uncertainty as to its actual future existence. However, when it is simply a question of a pure time preference for the present, it becomes morally problematic once applied to relations between different indi- viduals (rather than to merely planning the welfare profile within one’s own existence). In fact, the idea can be put forward that at that level it is still only an attempt - an ad hoc (Rawls, 1999:262) and rather ineffective one – to reduce the size of a problem – i.e. an inclination toward sacrificing earlier generations – which is in fact the logical outcome of utilitarianism. Even if descending altruism is left aside, the conjunction of recognising the productive nature of capital (whenever properly invested) and the indefinite nature of the number of future generations is such that, in the intergenerational context, utilitarianism can lead to particularly sacrificial out- comes, albeit attenuated by the inclusion of diminishing www.surv-perspect-integr-environ-soc.net/1/39/2008/ Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 44 A. Gosseries: Theories of intergenerational justice: a synopsis marginal utility as well as the introduction of a social dis- count rate. The reason why such outcomes seem especially unacceptable to many of us probably has to do with the fact that our conception of justice generally involves a distribu- tive motive besides or instead of an aggregative one. 6 Lockean proviso Before examining the paradigmatic example of a distributive theory of justice – Rawlsian egalitarianism – let us consider yet another family of theories. This time, it is neo-Lockean rather than neo-Hobbesian, and is commonly referred to as libertarianism. Briefly, libertarian views are building on two core features: On the one hand, a definition and a strong protection of self-ownership; on the other, a particular way of broaching the subject of ownership of external resources – in contrast to internal resources which are part of self- ownership. In this way, libertarians aim at guaranteeing, both against state and third party intervention, a strong protection for people’s physical integrity as well as e.g. for the own- ership of their talents. What is of particular interest here, however, is the status of external resources. We need in this respect to determine how to allocate to members of society the property of the goods we have inherited. Consider a first generation allocating the property of arable land. Some libertarians would incline to allocate ownership of such property on the basis of a rule of the “first come, first served” variety, which for that matter is a rule in use in various sectors of society, for instance as regards intellectual property rights. Others would have us subordinate legitimacy of appropriation to complying with so-called “Lockean” pro- visos. In general, the difference between those two major approaches will reflect, coexist with or result in differences in perceptions of the initial patrimonial status of external re- sources. For some, generally right-wing people, arable land initially does not belong to anyone, hence the use of the first come, first served principle. For others, generally more left- wing, the initial status of external resources would be that of collective property, which would explain the need for re- specting a Lockean proviso. One difficulty is that the idea of a Lockean proviso is interpreted in different ways, de- pending on whether Nozick’s views or those of others are adopted (Vallentyne and Steiner, 2000). What did Locke re- ally mean when he said that initial appropriation can be le- gitimate “At least where there is enough and as good left for others” (Locke, 1690: second treatise, §27; Waldron, 1979)? Let us be more direct in our formulation: “At least where there is as much which is left in common for others”. Ap- plied to the intergenerational domain, this could give us for example Arneson’s formulation: “The continued legitimacy of private ownership from the standpoint of self-ownership depends on each successive generation obtaining the equiv- alent of a per capita share of unimproved, undegraded land” (Arneson, 1991:53). A libertarian theory wishing to apply such a Lockean pro- viso will first of all need to determine its content (“as much as what?”) and apply it specifically to the intergenerational con- text (see Elliot, 1986:217ff.; Arneson, 1991:52–53; Steiner, 1994:268–273; Wolf, 1995:791ff.). Let us outline three ver- sions applicable to the intergenerational domain. A first pos- sible interpretation is: each generation should leave to the next at least as much (or the equivalent) of what the first (prehistoric) generation initially appropriated for itself. For those who consider that the basket of goods inherited from the immediately previous generation exceeds far and away the value of what the prehistoric generation would have had access to, this formulation of the proviso may appear too lax. For it would authorise the entire generation to dissave, inas- much as the resources transmitted in fine to the next genera- tion are in no way less substantial, as regards their productive potential, than the resources available to the (first) prehistoric generation. In effect, that formulation could be amended in two ways. The first consists in taking into account the natural mod- ifications of our resources as time goes by. Let us imagine that the generation before us was the first to be victim of a minor ice age which will continue for two generations. Ex hypothesi, this overall has a negative impact (as regards land productivity, biodiversity, etc.). Should the present genera- tion compensate for the difference – originating in natural events – between the value of the prehistoric world and what it has in effect become due to natural circumstances? For a Lockean, there is no particular reason why this should be so. What matters as a reference scenario to implement such a Lockean proviso, is to be able to identify what other people’s situation would have been in my absence – in this case, the situation of any previous generation if it had been the first. The following alternative formulation therefore seems com- mendable: each generation must leave to the next at least as much as what the next generation could have appropriated in the absence of any previous generation, or preferably2, what the coming generation would otherwise have inherited if no previous generation had by its actions brought about a net improvement or a net deterioration. Let us however imagine a hypothetical situation where some of the previous generations – and not this time natural disasters – had damaged, without any compensating techno- logical improvements, the state of external resources com- pared to what they would have been if left to the sole effect of natural causes. Using the above proviso, there would be an obligation to save. Now why should the current genera- tion bear the cost of compensating for deteriorations brought about by the activity of previous generations and for which they are in no way responsible, or at least no more so than the coming generation in whose favour it seeks to meet its obli- gations? Conversely, for those who consider that the cultural capital inherited from our ancestors considerably increases 2I owe this improved formulation to P. Vallentyne. Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 www.surv-perspect-integr-environ-soc.net/1/39/2008/ A. Gosseries: Theories of intergenerational justice: a synopsis 45 the productive potential of natural resources which the next generation would have inherited in the absence of any pre- vious generation, the degree to which such a formulation authorises anew a very significant margin of dissavings be- comes apparent. A further reformulation of the Lockean proviso is however possible: each generation must leave to the next at least as much as what the next generation could have appropriated if the current generation had not contributed by its action to a net improvement or deterioration of what the following gen- eration would otherwise have inherited. This third interpre- tation takes into account not just the natural improvements or deteriorations that have occurred since prehistoric times. It also includes the accumulated product of the physical and intellectual activities of the generations which preceded the current one. The only thing we need to do then is to con- sider what would have been the situation of each generation in terms of external resources (both natural and cultural), not in the absence of all previous generations, but rather in the absence of the single preceding generation. In the language of savings and dissavings, that means that savings are authorised, whereas such a Lockean proviso in no way authorises dissavings, unless the environment which the next generation will inherit has deteriorated compared to what we ourselves inherited, for reasons unrelated to our own activity (i.e. natural events or resulting from the activ- ity of previous generations). This implies, for example, that any climate change resulting from strictly historical emis- sions (i.e. resulting from our ancestors’ activities only, not from ours) and which would lead to a worse climate for the next generation than for our own, would not imply for us any specific obligations – which by the way shows that the ques- tion of historical emissions raises not just transgenerational equity issues (Gosseries, 2004b), but also issues relating to intergenerational equity. While what would be defended in this case by a proponent of indirect reciprocity is not entirely clear, the egalitarian view would clearly differ here from the Lockean one. Be that as it may, we are concentrating here on possible differences between “at least as much as what prehistoric generations had”, “at least as much as what G+1 would have had in the absence of any earlier generations” and “at least as much as G+1 would have inherited in the absence of G only”. And the specificity of the Lockean ap- proach is to focus on the question of knowing to what extent my existence deprives someone else of something he could otherwise have benefited from. 7 Rawlsian egalitarianism Rawls, in his masterpiece “A theory of Justice” (1999:§44), is aware of utilitarianism’s major difficulties in the intergen- erational context. At the same time, he considers that moving away, be it minimally, from the initial condition of prehis- toric men is necessary, not just for reasons of efficiency, but even for reasons of justice. How can both these concerns be accommodated? By defending a “two-stage” model in which a steady state phase follows an accumulation phase. During the accumulation phase, principles are identical to those of utilitarianism (compulsory savings). But this phase is sup- posed to have a limited duration. And the rationale underly- ing the need for such accumulation is totally unrelated with maximising the size of the intergenerational welfare pie. For Rawls, the aim of the accumulation phase is to allow eco- nomic affluence to build up so that at least minimal stabil- ity to just institutions can be ensured. As soon as this point is reached, accumulation ceases to be an obligation and the steady state phase begins. And for that second phase, the principle defended by Rawls is identical to the one defended by the indirect reciprocity view. Like Rawls, we believe that such a “two-stage” approach is necessary. We also believe that he is justified in defending the principle of an obligation to save during the accumulation phase (for a full discussion: Gaspart and Gosseries, 2007). However, this second thesis is not self-evident. What is po- tentially shocking for an egalitarian like Rawls, is to propose for the accumulation phase a principle of compulsory savings that goes against a concern for the worst off. In fact, from this viewpoint it is unfair, strictly speaking, to demand savings from the first generations. Doing so would bring about an in- tergenerational world where the least well off are not as well off as they could possibly be. Merely sticking to a prohibi- tion on dissavings would not have such consequences. Rawls is aware of this problem but still insists on an obligation to save. Let us attempt a brief defence of Rawls’ position the principle applicable to the accumulation phase. His theory is not just egalitarian, it is also liberal but in a very specific sense which must not be confused with its usual meaning in the designation of certain political actors on the European political arena. It is liberal in the sense that pursuing the improvement of the situation of the least well off must be done within the constraints we refer to as “basic liberties”. In other words, defending those few basic liber- ties (physical integrity, freedom of speech, etc.) takes prior- ity over the objective of improving the social and economic condition of the underprivileged. It could then be said that the reason why a violation of the egalitarian objective is al- lowable in the accumulation phase, has to do with the aim of setting up as quickly as possible institutions which could then be able to defend personal basic liberties and that this latter objective takes priority over the former. Now, if we can demonstrate that the richer (in terms of GDP) a democratic State becomes, the more likely are its chances of retaining its democratic character, we are in possession of an empirical argument able to support the claim that setting up equitable institutions requires a certain level of affluence. Although we can agree with the “two-stage” theory and with the principle Rawls defends for the accumulation phase, we believe that an upholder of equality of opportunity should be defending a different principle in the steady state phase. And what prin- ciple should that be? www.surv-perspect-integr-environ-soc.net/1/39/2008/ Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 46 A. Gosseries: Theories of intergenerational justice: a synopsis 8 Egalitarianism revisited We do not believe that Rawls is entirely true to the demands of egalitarianism in the steady state phase. We consider that prohibiting dissavings should go hand in hand with prohibit- ing savings. This may sound absurd. Is it at all unfair for par- ents to voluntarily scrimp and save to provide a better life for their children than the one they could have had themselves? Who could the victims of such allegedly unjust behaviour be? The answer to this question is that the victims would be the least well off members of the generation of such par- ents. Let us consider the situation of a generation anticipat- ing that, at the end of its existence, it might have transferred a surplus to the next generation in comparison with what it had received from the previous generation. The theory we are defending here is that it should not be the next generation taken as a group that should be benefiting from this surplus, but rather the least well off members of the current gener- ation. To transfer a surplus into the future sacrifices to the same extent today’s least well off. It is only if each genera- tion adheres to the principle of prohibiting both savings and dissavings that the intergenerational world that we will build can be seen as one where the least well off, regardless of the generation to which they belong, will be better off than they would have been in any other alternatively organised world. Note that this prohibition on savings has nothing to do with a preference for the members of our own generation. It is derived from a generational impartial concern for improving the situation of the least well off, whichever generation they belong to. Admittedly if this surplus were passed on to the next generation, it could well benefit the least well off mem- bers of that generation. But what we would have to make sure of is that the least well off members of our own genera- tion would not end up then in a worse situation than the one experienced by the least privileged of the next generation. We cannot go into the details here of this rather counter- intuitive principle, or which at least seems to be so at first sight (for a more extensive defence: Gosseries, 2004a: chap. 4; Gaspart and Gosseries, 2007). But we must empha- sise that even if such an approach is not totally incompatible with the idea of growth, it should certainly be contrasted with other ideas in the “anti-growth” family of arguments (see Gosseries, 2004a:224–225, Gaspart and Gosseries, 2007). Among these, let us mention four, all different from the one defended here. The first consists in stating that growth, in so far as it would lead to increased inequalities internation- ally, would be unfair in this respect. The second underlines that the adoption by a State of a policy to encourage eco- nomic growth is contrary to the principle according to which the State should remain neutral as regards people’s varying concepts of what the good life should be (Bonin, 1997). The third states that growth is futile, if not counter-productive, from the point of view of really worthwhile conceptions of the good life. A fourth argument considers that growth, in so far as it mobilises large amounts of physical resources, would not be sustainable at the current rate. Each of these four arguments deserves closer scrutiny, both on their factual assumptions and their normative plausibility. However, it should be stressed that intergenerational egalitarianism as de- veloped here presents an argument which differs from those, notwithstanding the fact that it does refer to a concern for justice as do the first two “anti-growth” arguments outlined above. It is also clear now that the conclusions of an egalitarian theory do not converge, in the steady-state phase, with those of for instance, indirect reciprocity. Furthermore, there is another significant angle from which the proposed conver- gence is absent. This becomes clearly apparent if we con- sider a future natural phenomenon (e.g. an earthquake) nega- tively impacting the fate of the next generation. From an in- tra-generational point of view, a destructive earthquake must give rise to compensation from those who did not suffer its effects, so as to mitigate as much as possible, the negative consequences for the unlucky few of a phenomenon they were not responsible for. For a luck egalitarian, any disad- vantage arising out of circumstances beyond people’s con- trol should give rise to compensation from the rest of so- ciety. A congenital handicap or a particular mother tongue are characteristics which are unquestionably circumstances affecting those concerned. A luck egalitarian would immedi- ately add however that if disadvantages arise out of people’s own choices, their costs should be borne in principle by the very people who made such choices. The debate in France on local mountain communities having to foot the bill for rescue missions to save people practising dangerous sports, or the debate in Austria concerning the non-reimbursement of hospital expenses for alcoholic coma induced by particu- lar drinking habits in the younger population, clearly point in the direction of practices which could well be viewed by an egalitarian as the result of a choice. In such cases, it would not be society’s duty to shoulder the burden of its cost (on choice/circumstance: Dworkin, 2000). How can we transpose this choice/circumstance distinc- tion into the intergenerational field? Let us go back to our previous example. If we were able – by extraordinary means – to predict the occurrence and magnitude of such future earthquakes and if we were able to demonstrate that the next generation will be particularly affected by them although, we, the current generation, would not be affected in the slightest, the current generation would then be under a savings obli- gation so as to ensure that, as a result of these earthquakes, the next generation does not find itself in more unfavourable circumstances than the current one. This obligation to save arises out of a very different logic from one based on utilitar- ianism or the one included in the accumulation phase of the egalitarian theory. But above all, it does not seem for exam- ple, that an indirect reciprocity approach could ever compel us to transfer more to the next generation than what we re- ceived from the previous one. Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 www.surv-perspect-integr-environ-soc.net/1/39/2008/ A. Gosseries: Theories of intergenerational justice: a synopsis 47 Table 1. Synopsis of the various theories of intergenerational justice. Savings Dissavings Indirect reciprocity Authorised Prohibited Utilitarianism Mandatory Prohibited Lockean proviso Authorised Prohibited, unless . . . Rawlsian Egalitarianism Phase 1: Mandatory Phase 2: Authorised Prohibited Egalitarianism revisited Phase 1: Mandatory Phase 2: Prohibited, unless . . . Phase 1: Prohibited Phase 2: Prohibited, unless . . . Brundtland’s Sufficientarism Authorised, unless . . . Authorised, unless . . . 9 Brundtland’s sufficientarianism We are now well prepared to support the assumption that Brundtland’s definition of sustainable development would not be a sufficient safeguard for intergenerational justice. As mentioned above, development is only said to be sustainable if it “Meets the needs of the present without compromising the ability of future generations to meet their own needs” (WCED, 1987:53). Contrast this formulation with Daly’s, according to which “. . . the basic needs of the present should always take precedence over the basic needs of the future but the basic needs of the future should take precedence over the extravagant luxury of the present” (Daly, 1996:36). Brundt- land’s reference to the concept of need can admittedly be un- derstood in its broader or narrower meaning. To our mind, the most appropriate interpretation is that of “basic needs”. But even with a less restrictive version, there is still in such a definition the idea that once everyone’s needs are covered, fairness does not require any further redistribution. As long as everyone’s basic needs are covered, this “sufficientarian- ism” based on the satisfaction of needs would not demand, for example, that a person born with a missing finger due to genetic malformation, should be receiving compensation if that missing finger does not prevent him from satisfying his basic needs (on sufficientarianism: Casal, 2007). In the view of a luck egalitarian, the residual injustice following Brundtland’s sufficientarianism in that case, is twofold. First, it authorises a possibly significant degree of dissavings as long as it is compatible with the capacity of the next generation to provide for its own needs. Second, by au- thorising generational savings – that is as long as it does not compromise the capacity of all the members of the current generation to satisfy their own needs, it is not responding to the egalitarian requirement for prohibiting savings on princi- ple out of concern for the least well off in our own current generation. Let us be quite clear: this is not an internal criticism of Brundtland’s theory. Furthermore, if space permitted, we could certainly try and demonstrate with far greater subtlety the extent to which Brundtland’s report probably opens the way to alternative interpretations. Nevertheless, what is of importance here, is that those who consider that luck egali- tarianism is the most plausible theory of justice when deal- ing with intragenerational allocation issues have no reason to abandon this theory when moving on to intergenerational is- sues. Egalitarians should certainly reject Brundtland’s theory as being insufficient. 10 Conclusion This short paper is based on a set of simplifying assump- tions. We did not, for example, consider the composition of the basket of goods to be transferred to the next genera- tion (e.g. can the oil or the biodiversity that we are squander- ing be replaced by motorways or cultural assets?). We only broached on a very general level the issue of equitable in- tergenerational transmission, on the basis of two categories (savings/dissavings) and three modalities (prohibition, au- thorisation and obligation). Nevertheless, this synopsis has allowed us to highlight two important points. Firstly, using a very simplified framework, one can see in outline some very different operational principles. We can observe for ex- ample that both the utilitarians and the egalitarians (in the accumulation phase and in certain limited assumptions in the steady state phase) include the generational savings obliga- tion in their theories, albeit for very different reasons. We can also see that the dissavings prohibition option is to be taken seriously by egalitarians in the steady state phase. Finally, are also worth noting the departures from the dissavings pro- hibition that are present in the Lockean or sufficientarian ap- proaches. Secondly, it is now obvious that the standard ap- proach to sustainable development as Brundtland views it is by no means the only option. And it is clearly problematic on two counts for an egalitarian. In point of fact, these theories of justice provide resources for thinking not just along different lines, but also for broach- ing the issue of intergenerational justice through the prism of various logics which, if they are understood in depth, can www.surv-perspect-integr-environ-soc.net/1/39/2008/ Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 48 A. Gosseries: Theories of intergenerational justice: a synopsis generate a multiplicity of implications. This is particularly true once the ultra-simplified world represented here is en- riched with a set of additional variables to bring it closer to the real world. Each of these theories can respond differently for example to demographic fluctuations, the case of the in- direct reciprocity view being probably the most emblematic on this count. For certain theories, population changes would modify what we owe to the next generation, whereas for oth- ers, it would in no way alter the magnitude of our intergener- ational obligations. Similarly, the degree to which descend- ing intergenerational altruism turns out to be significant will affect, to a greater or lesser degree, our obligations to the next generation depending on the theory which is adopted. Generational overlap (or its absence) is also more significant in some approaches than in others, particularly in the case of mutual advantage theories. And the fact that a previous generation has, or has not, fulfilled its own obligations (non- compliance issue) will affect, also in varying degrees, the obligations that each of these theories places on the current generation. It is illuminating in this regard to have in mind how a Lockean proviso tackles the disregard, by a generation previous to our own, of its intergenerational obligations; and how an egalitarian theory can take on board the risk of non- compliance with its intergenerational obligations by one of the generations that comes after us. As we can see, taking the standard theories on justice se- riously is fairly enlightening as to the various possible ways of tackling the issue of our intergenerational obligations. To be sure, there is still a long way to go before we can define the precise contours of these obligations... and set up the in- stitutions to enforce them. Acknowledgements. This paper is a revised version of Gosseries (2005). We particularly wish to thank B. Gagnon, M. Fleurbaey and P. Savidan for their comments during the preparation of this paper, the original French version of which is forthcoming in Raison publique (2008). We are also much grateful to Evelyn Apaire Van Gelder for her translation from French. Edited by: G. Maingauy References Arneson, R.: Lockean Self-Ownership: Towards a Demolition, Po- litical Studies, 39(1), 36–54, 1991. Arrhenius, G.: Mutual Advantage Contractarianism and Future Generations, Theoria, 65(1), 25–35, 1999. Barry, B.: Justice as Reciprocity, in: Liberty and Justice, Oxford, Oxford University Press, 1989. Birnbacher, D.: Can discounting be justified?, International Journal of Sustainable Development, 6(1), 42–53, 2003. Bonin, P.-Y.: Neutralité libérale et croissance économique, Dia- logue, 36, 683–703, 1997. Bränvall, M.-L., Bindler, R., Emteryd, O., and Renberg, I.: Four thousand years of atmospheric lead pollution in northern Europe: a summary from Swedish lake sediments, J. Paleolimnol., 25, 421–435, 2001. Burke, E.: Reflections on the French Revolution, Cambridge (Mass.): The Harvard Classics, 1909–14. Casal, P.: Why Sufficiency is Not Enough, Ethics, 117(2), 296–326, 2007. Cosandey, D.: La faillite coupable des retraites, Comment nos as- surances vieillesse font chuter la natalité, Paris, L’Harmattan, 2003. Cowen, T. and Parfit, D.: Against the Social Discount Rate, in: Jus- tice between age groups and generations, edited by: Laslett, P., and Fishkin, J., New Haven/London, Yale University Press, 144– 161, 1992. Daly, H.: Beyond Growth, The economics of sustainable develop- ment, Boston, Beacon Press, 1996. De Shalit, A.: Why Posterity Matters. Environmental policies and future generations, London, Routledge, 1995. Diamond, J.: Collapse. How societies choose to fail or survive, Viking Books, 2005. Dworkin, R.: Sovereign Virtue. The Theory and Practice of Equal- ity, Cambridge/London, Harvard University Press, 2000. Elliot, R.: Future Generations, Locke’s Proviso and Libertarian Jus- tice, Journal of Applied Philosophy, 3(2), 217–227, 1986. Gaspart, F. and Gosseries, A.: Are Generational Savings Unjust?, Politics, Philosophy & Economics, 6(2), 193–217, 2007. Gauthier, D.: Morals by agreement, Oxford, Clarendon Press, 1986. Gilfillan, S. C.: Lead Poisoning and the Fall of Rome, J. Occup. Med., 7, 53–60, 1965. Gosseries, A.: De la nécessité de distinguer protection de l’environnement, conservation de la nature et conservation de la biodiversité, L’exemple de l’introduction d’une sous-espèce non- européenne d’espèce protégée (note under CJCE, C-202/94), 1997, Revue juridique de l’environnement, 22(2), 220–227, 1997. Gosseries, A.: L’éthique environnementale aujourd’hui, Revue philosophique de Louvain, 96(3), 401–405, 1998. Gosseries, A.: Penser la justice entre les générations, Paris, Aubier- Flammarion, 2004a. Gosseries, A.: Historical Emissions and Free-riding, Ethical Per- spectives, 11(1), 36–60, 2004b. Gosseries, A.: The Egalitarian Case Against Brundtland’s Sustain- ability, GAIA, 14(1), 40–46, 2005. Gosseries, A.: Dette générationnelle et conceptions de la réciprocité, in: Finances publiques et redistribution sociale, edited by: Pellet, R., Paris, Economica, 367–391, 2006a. Gosseries, A.: Egalitarisme cosmopolite et effet de serre, Les séminaires de l’IDDRI (Paris), 14, 18–23, 2006b. Gosseries, A.: Radiological Protection and Intergenerational Jus- tice, in: Ethics and Radiological Protection, edited by: Egger- mont, G. and Feltz, B., Louvain-la-Neuve, Academia-Bruylant, 167–195, 2008. Heath, J.: Intergenerational Cooperation and Distributive Justice, Can. J. Phil., 27(3), 361–376, 1997. Jaurès, J.: Etudes socialistes, Paris, P. Ollendorf, 1902, http:// gallica.bnf.fr/ark:/12148/bpt6k886633, last access: April 2008. Jefferson, Th.: Letter to James Madison (6 sept 1789), Disponible sur: http://odur.let.rug.nl/∼usa/P/tj3/writings/brf/jefl81.htm, last access: 14 May, 2008. Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 www.surv-perspect-integr-environ-soc.net/1/39/2008/ http://gallica.bnf.fr/ark:/12148/bpt6k886633 http://gallica.bnf.fr/ark:/12148/bpt6k886633 http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl81.htm A. Gosseries: Theories of intergenerational justice: a synopsis 49 Lessler L.: Lead and Lead Poisoning from Antiquity to Modern Times, Ohio J. Sci, 88(3), 78–84, 1988. Locke, J.: Two Treatises of Government and A Letter Concern- ing Toleration, edited by: Shapiro, I., New Haven/Londres, Yale University Press, 1690 (2003). Márai, S.: Les Confessions d’un bourgeois, Paris, Albin Michel (Le Livre de Poche), 1993. Maréchal, J.-P. and Quenault, B. (Eds.): Le développement durable, Une perspective pour le XXIè siècle, Rennes, PUR, 2005. Ponting, Cl.: A Green History Of The World. The Environment and the Collapse of Great Civilizations, New York, Penguin, 1993. Rawls, J.: A Theory of Justice (revised edition), Oxford/New York, Oxford University Press, 1999 (Orig. 1971). Smart, J. J. C. and Williams, B.: Utilitarianism. For and Against, Cambridge, Cambridge University Press, 1973. Steiner, H.: An Essay on Rights, Oxford, Blackwell, 1994. Stern, N.: The Economics of Climate Change: The Stern Review, Cambridge, Cambridge University Press, also avail- able at: http://www.hm-treasury.gov.uk/independent reviews/ stern review economics climate change/stern review report. cfm, 2007. Vallentyne, P. and Steiner, H. (Eds.): Left Libertarianism and its Critics: The Contemporary Debate, New York, Palgrave, 2000. Wade-Benzoni, K. A.: A Golden Rule Over Time: Reciprocity in Intergenerational Allocation Decisions, Academy of Manage- ment Journal, 45(5), 1011–1028, 2002. Waldron, J.: Enough And As Good Left For Others, Philosophical Quarterly, 29, 319–328, 1979. WCED (World Commission on the Environment and Develop- ment): Our Common Future, Oxford/New York, Oxford Univer- sity Press, 1987. Wolf, C.: Contemporary Property Rights, Lockean Provisos and the Interests of Future Generations, Ethics, 105(4), 791–818, 1995. www.surv-perspect-integr-environ-soc.net/1/39/2008/ Surv. Perspect. Integr. Environ. Soc., 1, 39–49, 2008 http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm 
work_2tt76smnojbv3afxsvdcullpou	----	Climate justice and the built environment EDITORIAL Climate justice and the built environment Sonja Klinsky1 and Anna Mavrogianni2 Highlights Climate justice is explained and explored in relation to how decisions about the built environment in the climate context intersect with human wellbeing. Key features in the built environment are identified that impact upon climate injustice. Specific processes, decisions and actions are identified to reduce these injustices and to reduce current gaps both in knowledge and practices. A conceptual and practical context is provided for integrating concerns about climate justice into research and decision-making about the built environment by addressing four underlying questions: 1. What is climate justice and why is it a significant issue? 2. Why is the built environment important in addressing climate injustice, and why is climate justice essential for the built environment community to consider? 3. What processes can be used to reduce inequities and injustices in the built environment? 4. What roles might the academic community, governmental entities, and practitioners in construction, design and real estate, have in facilitating deeper integration of climate justice? A capabilities approach is proposed to systematically uncover and address underlying patterns of injustice. A multi-valent approach involving distributive, procedural and recognition justice can be harnessed to constitute a justice framework. A process of change is needed to: (i) reframe, reposition and extend current built environment research to engage with wider issues of justice, (ii) build and make accessible the evidence base for the identification and mitigation of inequities in climate risk exposures, vulnerabilities, and effective and equitable adaptation pathways and (iii) define responsibilities for different actors. Keywords: adaptation; built environment; cities; climate justice; equity; human development; poverty; resilience; social justice; vulnerability Klinsky, S., & Mavrogianni, A. (2020). Climate justice and the built environment. Buildings and Cities, 1(1), pp. 412–428. DOI: https:// doi.org/10.5334/bc.65 1. Introduction It is widely acknowledged that questions of justice are embedded in every aspect of climate change, and that ongoing and future anthropogenic climate change will exacerbate inequities worldwide. Cumulative global emissions have been dominated by processes of industrialisation from the Global North, leaving limited atmospheric space for similar processes in the Global South if atmospheric concentrations are to be kept below levels that would lead to a 1.5 or 2°C change in global average temperature. Simultaneously, global climate change impacts including sea level rise and increases in the frequency and severity of extreme weather events are also uneven across and within countries (IPCC 2018). Both extreme events and slow onset impacts can harm infrastructure, present significant financial challenges to communities, and generate a myriad of health and wellbeing implications. Such health impacts can include immediate threats to life, changes in long-term conditions including asthma and heat-related stress, challenges to mental health, and shifts in disease vectors (Watts et al. 2019). Climate change will also function as a ‘risk modifier’ in the built environment, exacerbating inequalities and inequities associated with indoor environmental exposures, such as excess indoor temperatures, indoor air pollution, contaminated water, allergens and mould (Vardoulakis et al. 2015). This special issue presents climate justice studies by seven groups of researchers. The papers, which were selected from 36 submitted abstracts, describe work conducted in Australia, Germany, Kenya, Poland, the UK and the US (Table 1). They describe a range of approaches for understanding the manifestations of climate injustice in the context of the built environment and identify specific processes, decisions and actions that can be taken to reduce these injustices. 1 Arizona State University, School of Sustainability, Tempe, AZ, US. ORCID: 0000-0002-9450-1249 2 University College London, Bartlett Faculty of the Built Environment, Institute for Environmental Design and Engineering, London, UK. ORCID: 0000-0002-5104-1238 Corresponding author: Anna Mavrogianni (a.mavrogianni@ucl.ac.uk) https://doi.org/10.5334/bc.65 https://doi.org/10.5334/bc.65 https://orcid.org/0000-0002-9450-1249 https://orcid.org/0000-0002-5104-1238 mailto:a.mavrogianni@ucl.ac.uk Klinsky and Mavrogianni 413 Despite this breadth, the special issue also reveals some gaps both in our knowledge and practices. Accordingly, it aims to initiate a process of change and discussion that will ultimately break disciplinary silos in order to: (1) reframe, reposition and extend current built environment research to engage with wider issues of justice; and (2) build the evidence base for the identification and mitigation of inequities in climate risk exposures, vulnerabilities, and effective and equitable adaptation pathways. This editorial places these papers in context and provides a starting point for more fully integrating concerns about climate justice into research and decision-making about the built environment. It was motivated by considering four underlying questions of direct relevance to those in the built environment community: • What is climate justice and why is it a significant issue? • Why is the built environment important in addressing climate injustice, and why might climate justice be essential for the built environment community to consider? • What processes can be used to reduce inequities and injustices in the built environment? • What roles might the academic community, governmental entities, and practitioners in construction, design and real estate, have in facilitating deeper integration of climate justice into work on the built environment? Building from these underlying questions, this editorial considers the major dimensions of climate justice, and maps some of the ways in which decisions about the built environment in the climate context intersect with human wellbeing. Using a capabilities lens (Sen 1999, 2005) combined with a multivalent approach to justice, it then proposes a framework to help those in the built environment community more systemically locate their work within the scope of considerations about justice in the climate context. The end of this editorial issues key challenges for the academic community, construction and real estate sectors, governments and communities. 2. Dimensions of climate injustice The central claims of climate injustice involve four key interconnected dimensions. The first is that there are vast disparities in causal responsibility for greenhouse gas (GHG) emissions that have cumulative driven climate change. The US alone is responsible for 26% of all cumulative emissions since the industrial revolution, and the EU is similarly responsible for 23%. Meanwhile, despite having much larger populations, India’s total cumulative emissions are only about 3% of the global total, while even China is responsible for only 12% (Gütschow et al. 2016). These disparities become even more stark when considered on a per capita basis. Cumulative emissions are particularly relevant from a built environment perspective because these accumulated emissions result from the creation and use of hospitals and roads, railways, housing, schools, factories, office towers, etc. While emissions themselves are invisible, the benefits they have yielded are distinctly embodied in daily life, have accumulated unevenly, and cannot be ignored in any discussion about the built environment and climate justice. Historical responsibility for climate change has been a central part of Table 1: Articles in this special issue ‘Climate Justice: The Role of the Built Environment’, Buildings and Cities (2020), 1(1); guest editors Anna Mavrogianni and Sonja Klinsky. Authors Title DOI S. Klinsky & A. Mavrogianni Climate justice and the built environment 10.5334/bc.65 M. Baborska-Narozny, M. Szulgowska, M. Mokrecka, A. Chmielewska, N. Fidorow-Kaprawy, E. Stefanowicz, K. Piechurski & M. Laska Climate justice: air quality and transitions from solid fuel heating 10.5334/bc.23 N. Willand, T. Moore, R. Horne & S. Robertson Retrofit poverty: socioeconomic spatial disparities in retrofit subsidies uptake 10.5334/bc.13 C. Schünemann, A. Olfert, D. Schiela, K. Gruhler, & R. Ortlepp Mitigation and adaptation in multifamily housing: overheating and climate justice 10.5334/bc.12 Z. Hamstead, P. Coseo, S. AlKhaled, E. F. Boamah, D. M. Hondula, A. Middel, & N. Rajkovich Thermally resilient communities: creating a socio-technical collaborative response to extreme temperatures 10.5334/bc.15 M. Patrick, G. Grewal, W. Chelagat & G. Shannon Planetary health justice: feminist approaches to building in rural Kenya 10.5334/bc.18 S. Axon & J. Morrissey Just community transitions? Social inequity, vulnerability, and unintended consequences 10.5334/bc.14 U. Passe, M. C. Dorneich, C. Krejci, D. Malekpour, B. Marmur, L. Shenk, J. Stonewall, J. Thompson & Y. Zhou Urban modelling framework for climate resilient energy use decisions in low-resource neighbourhoods 10.5334/bc.17 https://doi.org/10.5334/bc.65 https://doi.org/10.5334/bc.23 https://doi.org/10.5334/bc.13 https://doi.org/10.5334/bc.12 https://doi.org/10.5334/bc.15 https://doi.org/10.5334/bc.18 https://doi.org/10.5334/bc.14 https://doi.org/10.5334/bc.17 Climate justice and the built environment414 all debates about climate justice (Agarwal & Narain 1991; BASIC Expert 2011; LaRovere, Valente de Macedo, & Baumert 2002) and is unavoidable, especially in light of its intersection with other dimensions of climate injustice. The second and third dimensions of climate injustice are inextricably entwined: (1) climate impacts are unevenly distributed as is (2) vulnerability to these impacts due to pre-existing patterns of privilege and marginalisation (Field et al. 2014; Tschakert et al. 2013). Low income, socially and economically marginalised communities, individuals suffering from chronic diseases or social isolation, older and young people, and vulnerable populations will be disproportionately affected by climate change due to their limited ability to adapt (Baker 2012), and these variables operate within domestic and international spheres. Many of those with least resources will face the most intense climate impacts, and insufficient climate action will negatively affect the achievement of the United Nations’ (UN) Sustainable Development Goals (SDG) promoting the wellbeing of people in developing countries and low income and marginalised communities within wealthy countries (UN 2015). For instance, when Hurricane Katrina (2005) hit New Orleans 1200 people died. The highest proportion of victims were people aged 65 and over; African Americans were significantly over-represented amongst the victims across all age categories (Sharkey 2007). Moreover, African Americans were less likely to have returned to New Orleans as they had proportionally experienced more intense housing losses (Fussell, Sastry, & VanLandingham 2010), a permanent migration which represents profound and uneven loss. The depth of inequality from extreme events is intensified even further in countries with fewer resources. A relatively comparable storm with Hurricane Katrina in the Philippines, Typhoon Haiyan (2013), left at least 6300 dead. Six years afterwards, socioeconomic inequalities amongst survivors continued to shape the nature of recovery (Madianou 2015). The asymmetry of inequities in vulnerability between and within societies is a particularly sharp form of injustice. Many of those who are most vulnerable have contributed least to climate change and many of the processes fuelling systemic inequalities are tied to the accumulation of wealth and privilege that resulted in climate change in the first place (Cameron 2012; Haines et al. 2007: 200; Islam & Winkel 2017). Industrialisation and infrastructure development of parts of the world has been supported through exploitation in others. For instance, fossil fuel development in its current form across North America would not be possible without the expropriation of Indigenous territories through settler colonialism (Whyte 2020). The relationships between industrialisation, colonialism, slavery and global capital accumulation (Malm 2013) are not neatly linear but they are deeply entwined. Acknowledging these connections may be essential for designing strategies capable of moving towards more just arrangements at a fundamental level. These interconnections have long been articulated by climate justice activists (CJN! 2004; ICJN 2002) but remain only tentatively recognised in broader scholarship, although this is changing as people come to more deeply interrogate the causes and potential strategies for ameliorating climate injustice (Cameron 2012; Grear 2014; Saad 2017; Whyte 2020). The fourth justice dimension is that temporal, social and spatial distance separates the causes and effects of climate change. Those who have benefited from emissions and those who are most harmed are segregated from each other by social or physical distance and time. This generates new problems for decision-making and accountability. People outside of a given jurisdictional boundary, those inside a boundary but who are not recognised (i.e. those without documentation or citizenship, or those experiencing systemic discrimination), or those who are not yet born may be excluded by decision-making representatives and analysts as they are not held directly accountable to them. The widespread exclusion of those who are most vulnerable within jurisdiction-specific decisions almost by definition presents profound challenges for procedural justice. How should future people or those who reside outside of any particular jurisdictional boundary—neighbourhood, city, country, region—be recognised or represented in decision- making? There is good reason that philosopher Stephen Gardiner has long since identified climate change as a ‘perfect moral storm’ (Gardiner 2006). Actors in any given system have specific rights and responsibilities, and some may hold moral claims against others for failing to uphold their responsibilities. While observations of inequities are important, a focus on justice opens up consideration of both the underlying processes by which inequities are generated and the responsibilities different actors have within this. A climate justice approach can provide an analysis which is actionable based on understanding whose rights and responsibilities are at play in any given situation and how they are related. Examples of this might include not only identifying why particular people are unusually vulnerable to a specific climate impact, but who has specific responsibilities to address these vulnerabilities. Such responsibilities can be based on some causal connection through climate change or some other pre-existing relationship (such as systemic discrimination) or because of roles which come with specific obligations, such as a government’s obligation to provide essential services, or a contractor’s obligation to ensure the long-term safety of a building. In the built environment context, key actors with responsibilities might include individual people or categories of people, such as residents and clients, designers, service providers, contractors and builders, along with decision-makers representing all levels of collective organisations, such as local to national governments, corporations, and civil society organisations. 3. The built environment and climate injustice Due to the pace of climate change and the urgency of efforts to avert it, interrogation of the intersection between justice, the built environment and climate change is a timely arena of enquiry. The built environment is where most people work, live and play; it is literally built into the fabric of society and will be central to both climate mitigation and adaptation to climate impacts. From a mitigation perspective, the built environment is a significant contributor Klinsky and Mavrogianni 415 of GHG emissions globally, which makes it a key sector to include in any mitigation efforts. As of 2016, residential and commercial buildings accounted for 17.5% of GHG emissions globally (WRI 2020). From an adaptation perspective, many climate impacts occur at the level of cities, neighbourhoods or individual buildings, making the built environment a central locus for adaptation planning and decision-making. In both contexts, three key features underpin the inherent relationship between climate injustice and the built environment; (1) long time-frames involved; (2) the embedded accumulation of privilege and disadvantage within the built environment; and (3) the tight synergies between broader health and societal benefits with climate-friendly approaches to the built environment. Each is briefly considered below. 3.1. Long timeframes Decisions about the built environment are particularly important in the climate context due to the longevity and path dependency of the building stock and infrastructure. Built infrastructure lasts for a long time: any decision taken now will continue to shape surrounding decisions for many years—50, 100 or more. The diversity in building stock turnover rates needs to be considered as part of any climate change adaptation or mitigation pathway. Whilst the building stocks of ‘mature’ economies are characterised by slow demolition and replacement rates (Power 2008), those of growing economies (e.g. India, China, Africa) have much shorter building life expectancies and will be building rapidly over the next 10–20 years. By way of illustration, the average building lifespan in China is estimated to be 25–35 years as opposed to 70–175 years across European countries (Marsh 2017; Sandberg et al. 2016; Wang, Zhang, & Wang 2018). In addition, decisions about the types of housing, industrial centres or neighbourhood design result in commitments to particular forms of energy and ways of life that are difficult to shift and, thus, result in a diversity of social, economic, energy, resources, and physical path dependencies. Taking a climate justice approach to questions about the built environment can inform efforts to avoid maladaptive responses to climate change and lock-in measures that will play out for a longer period of time, and to promote decision-making that seeks to move towards a more just society in which all can flourish (Kelman 2020). 3.2. Embedded accumulation The interaction between climate change and pre-existing patterns of cumulative privilege and disadvantage that have been embedded in the built environment raise questions about the extent to which adaptation or mitigation decisions will reduce or increase the inequalities already being experienced across societies. A growing body of literature has been highlighting the urgent need to broaden the focus from the ‘vulnerable’ in society to include critical reflection about systemic inequalities and structural vulnerabilities (Tschakert et al. 2013). This is particularly important for the built environment sector where decision-making processes are multilayered, interconnected and complex. A wide range of different actors is usually involved (national, regional and local governments, clients, designers and contractors, service providers, communities), often with conflicting agendas and priorities. The potential for pre-existing inequities to deepen climate impacts in all countries is increasingly well documented across a wide range of dimensions immediately related to the built environment including heat stress (Byrne et al. 2016); access to public open space and shade coverage (Mitchell & Chakraborty 2015; Kolosna & Spurlock 2019; Smith & Henríquez 2019; Wilson & Chakraborty 2013); and access to essential services (Gibson 2019; Hale 2019), to name a few. 3.3. Wellbeing and built environment synergies The creation of sustainable local communities, low-carbon buildings and active transport are expected to have wider health and social benefits. As stated in the Marmot Review (Marmot et al. 2010), social inequalities in health should be tackled alongside climate change, and these two aims are ‘entirely compatible’. A series of Lancet papers published in 2009 (Friel et al. 2009; Markandya et al. 2009; Smith et al. 2009; Wilkinson et al. 2009; Woodcock et al. 2009) explored the potential for climate change mitigation policies to result in public health improvements, thus strengthening the case for the socioeconomic benefits of climate change mitigation policy (Deng et al. 2017; Gao et al. 2018; Haines et al. 2009; Milner et al. 2020; Vardoulakis et al. 2015). Similarly, public health-focused climate change adaptation strategies at the urban level, such as urban shading, and spaces that encourage physical activity and social connection, have been shown to have appreciable co-benefits, such as improvements in social capital, mental health improvements, reduced obesity and cardiovascular disease (Cheng & Berry 2013). Many have argued that there are important synergies between the previously disconnected targets of climate change driven policies in the built environment sector and energy poverty reduction, and that these should be more strongly linked in both research and policy (Tozer 2020; Ürge-Vorsatz & Tirado Herrero 2012). There is a significant body of evidence demonstrating that, if developed and implemented appropriately, GHG emissions reduction strategies in the building stock have the potential to reduce underlying social and health inequalities, and help eradicate poverty. Energy efficiency improvements in low income housing, such as thermal insulation, has been found to improve indoor thermal conditions, perceived health and sense of wellbeing, and doctor/hospital appointments for respiratory conditions (Howden-Chapman et al. 2007). Although high energy efficiency standards, such as Passivhaus, may be routinely dismissed as non-affordable, recent research has demonstrated the potential to reduce construction costs through multi-objective optimisation, thus increasing their feasibility as a social housing option that could help reduce fuel poverty (Forde et al. 2020). However, it has been emphasised that, for climate change mitigation policies to avoid Climate justice and the built environment416 unintended consequences in relation to existing inequalities, a ‘pro-poor’ approach needs to be adopted (Markkanen & Anger-Kraavi 2019). An example of a programme that has placed systemically marginalised communities at the centre of its planning in order to purposefully reap synergistic benefits from climate action is the Portland Clean Energy and Community Benefits Fund (PCEF). Community led and governed through a social norm of consensus and frontline leadership, this initiative addressed immediate community needs through a broader climate justice lens that included the creation of a consistent and long-term funding source for renewable energy, energy efficiency, green infrastructure and jobs training projects (Mondainé & Lee 2020). Despite these potential synergies, several concerns about injustice stemming from both mitigation and adaption have emerged. For instance, in the mitigation context, although retrofitting is clearly an important element of increasing energy efficiency and alleviating fuel poverty, the potential for retrofit access opportunities and associated benefits are unevenly distributed due to differences in income and wealth or to the landlord–tenant relationship (Camprubí et al. 2016; Gillard, Snell, & Bevan 2017; Schaffrin 2013; Teli et al. 2016). Similarly, winter energy poverty and climate policies may have regressive implications for low income households (Mallaburn & Eyre 2014). As global temperatures increase and overheating risk becomes an increasing concern, several authors have also highlighted the need to identify and quantify summer fuel poverty in temperate climates (Escandón, Suárez, & Sendra 2019; Sánchez-Guevara Sánchez et al. 2017; Tabata & Tsai 2020; Thomson et al. 2019). Vulnerable households are often likely to live in a dwelling prone to overheating located within urban heat islands with poor green and blue infrastructure, and have limited cooling means, e.g. limited ventilation due to outdoor air pollution, noise, unsafe conditions or poor building design (Romero Lankao & Qin 2011). Heat events and air pollution disproportionately affect disadvantaged groups on the basis of income, age, ethnicity and marital status (Willers et al. 2016). The potential for greening efforts—including increasing green space and updating building energy efficiency—to drive gentrification and displacement of low-income households is another theme that has increasingly been recognised within this nexus (Cole et al. 2017; Wolch, Byrne, & Newell 2014). Justice concerns have also emerged from discussion about climate adaptation in the context of the built environment. The most pressing of these has been exclusionary adaptation, e.g. adaptation planning that excludes informal settlements or communities with limited political power (Henrique & Tschakert 2019). Similarly, interest in green infrastructure both as a mitigation and adaption measure has been attended by concerns that the benefits may serve only some populations and, such as gentrification, result in the displacement of vulnerable people (Anguelovski, Irazábal-Zurita, & Connolly 2019; Turan 2018). This special issue recognises the twin potentials that the built environment holds: the built environment can intensify injustices but also potentially address them in the climate context. This editorial combines the capabilities approach with a multivalent focus on justice in order to develop a framework that could be used by researchers, practitioners and decision-makers to identify both potential climate justice concerns that emerge in the context of the built environment and actionable points of intervention that could help move towards more just arrangements. 4. A capabilities approach Identifying systemic justice concerns and finding intervention points can be challenging. An abstract level of claims about justice may miss concrete opportunities for change. But focusing solely on concrete details can also flatten the analysis and fail to uncover underlying patterns. One of the benefits of focusing on the built environment from a climate justice approach is the centrality of this sector to core concerns of human safety, mobility and basic wellbeing. Concern with human flourishing is at the heart of all the dimensions of climate justice identified above. The notion of capabilities provides a useful starting point for making the implications of climate justice claims more visible in actual decision-contexts. The capabilities approach starts with the recognition that human flourishing requires the ability to access and benefit from a range of opportunities and resources. While the exact manifestation of capabilities may vary and has been the subject of some debate (Nussbaum 2011; Sen 1999), a capabilities approach can be useful for identifying how concrete decisions about the built environment in the context of climate change could enhance or threaten human wellbeing. The Human Development Index (HDI) is one rough metric built on this notion and can be helpful at identifying broad trends, but focusing more in-depth on specific capabilities may have some benefits, particularly from the perspective of individuals and decision-makers having to make decisions. Table 2 provides a few examples of how mitigation and adaptation strategies in the context of the built environment interact with commonly cited capabilities. Each strategy contains both opportunities and challenges for justice. For instance, while a positive adaptation strategy might include proactive decisions about how to protect residential areas from extreme events or long-term climate impacts, the failure to do this, or to do this for some and not others, or possibly why some communities are vulnerable in the first place while others are not, raise concerns about injustice. Table 2 makes clear the built environment can enable or inhibit capabilities for people to flourish. If investigated through a justice lens, deeper levels of the challenge are revealed. What capabilities have some secured access to through use of atmospheric space—manifest as things such as access to schools, hospitals, transportation systems, office buildings and safe homes—that have been denied to others? How does differential experience of benefits and burdens occur? Which capabilities, and for whom, are put at risk through particular climate impacts? How do climate Klinsky and Mavrogianni 417 Table 2: Examples of the interactions between climate change mitigation and adaptation strategies in the built environment and human flourishing capabilities. Built environment support for capabilities Climate change mitigation strategies Climate change adaptation strategies Health: ‘A state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity’ (WHO 1948) The capability of health in the built environment context includes not only the provision of adequate protection from harmful pollutants, thermal extremes, noise and safety hazards, both indoors and outdoors, but also the provision of services that allow people to accomplish their desired tasks safely and efficiently without physical or mental distress, and to promote physical and mental health and wellbeing (IWBI 2016; Perdue, Stone, & Gostin 2003). Recognising the inextricable link between human health and a healthy environment, ensuring people enjoy health, includes all large-scale environmental protections from the regional to the urban to the building scale Outdoor environmental quality at multiple scales (global to neighbourhood): including control of greenhouse gas emissions, all pollutants of air, water and land Minimise environmental costs (proximate and distal) of all infrastructure Protect proximate and distal landscapes and built environment from climate change impacts (e.g. heatwaves, droughts, floods, storms etc.) without intensifying climate change, reduce sources of outdoor air pollution through appropriate policies Indoor environmental quality including air, sound and light quality, physical integrity Ensure low-carbon building does not compromise indoor environmental quality Enhance access to spaces of high indoor environmental quality; ensure efforts to enhance indoor environmental quality do not impose stress on outdoor environmental quality (proximate and distal) Outdoor thermal adequacy Seek to reduce outdoor thermal stress imposed through the built environment, including microclimatic characteristics Protect or enhance mechanisms for low- carbon outdoor thermal comfort Indoor thermal adequacy Recognise potential implications of mitigation policy on indoor thermal adequacy Enhance access to domestic low-carbon thermal comfort control; ensure efforts to enhance indoor thermal comfort do not negatively affect outdoor thermal comfort and/or generate additional greenhouse gas emissions Physical safety: Capability to live, work and participate in public life safely This includes not only the existence but also the affordability of access to physically safe spaces for living, working and public life for all Home Building and operation practices that provide high-quality, low-carbon, affordable housing Minimise vulnerability of permanent and temporary residential areas to extreme climate events and long-term impacts Care settings (e.g. care homes and extra-care homes) Building and operation practices that provide high-quality, low-carbon care provision Minimise vulnerability of care settings to extreme climate events and long-term impacts Work/school/public life Building and operation practices that provide high-quality, low-carbon infrastructure for employment, education and public life Minimise vulnerability of workplaces, schools and public institutions to extreme climate events and long-term impacts Accessibility and mobility Implementing low-carbon, safe and accessible mobility services; reduce non- human-powered mobility needs overall Ensure low-carbon transportation infrastructure, including human-powered mobility systems, is accessible and designed to function through extreme climate events and long-term impacts Cultural vitality: Capability to sustain a thriving cultural life Cultural vitality requires attention to both the experience of individuals and the potential for collective experiences to be nurtured Public spaces Building high-quality, low-carbon public spaces (including protecting adequate green space) designed to nurture public and cultural life Ensure protections and inclusive access for public space in order to meet the diversity of needs this space addresses in the face of extreme climate events and long-term impacts (Contd.) Climate justice and the built environment418 change impacts interact with pre-existing patterns in society that have resulted in disparities of access to material and immaterial resources and opportunities? To what extent is access to some capabilities for some being secured at the cost of access to capabilities for others? Explicit attention to questions about the distribution of capabilities and the means by which they have emerged lays the groundwork for the next big question: what opportunities exist in the context of the built environment for decisions to be made that would be less likely to result in or perpetuate profound disparity in human capabilities? Pursuing climate justice almost certainly requires changing the status quo since many existing systems have fed into or could exacerbate injustices which immediately brings up questions about political power and decision-making processes. For example, in the face of rapid urbanisation, climate change, and already stretched public service sectors, guaranteeing water accessibility for all may require reducing investments in privileged neighbourhoods in order to increase investments in systematically disadvantaged areas. However, this type of decision would be likely to face political pressure from those who have benefitted from the existing structure and who carry significant political power (Baeza et al. 2019). Recognising the political nature of climate justice dilemmas de-normalises unjust arrangements and can reorient scholars, practitioners, decision-makers and community members towards the mechanisms that initiated and that perpetuate systemic injustice. A growing number of scholars have explicitly started to include in-depth attention to the political processes both supporting and inhibiting change towards more just arrangements in the built environment context (Bulkeley, Edwards, & Fuller 2014; Meerow & Newell 2019; Ziervogel et al. 2017). Despite the growing attention to issues of climate justice within the built environment community, this literature is diverse and rarely shares common notions of equity or justice or even defines these terms. As seen in the suite of papers in this special issue, and in the literature broadly, there are many possible ways of integrating justice concerns into the built environment. However, due to the diversity of points of interaction between the built environment and climate change, ongoing discussions about (in)justice in any given domain are not always linked to each other or to broader questions of creating more just social arrangements in an era of climate change. Similarly, even when providing in-depth technical insights, many studies do not link such observations directly to issues of justice, and the majority of studies quantifying climate change impacts on energy use, comfort, health and wellbeing do not provide detailed consideration of the social aspects that magnify risks for health and wellbeing across and within countries (Cheng & Berry 2013; Vardoulakis et al. 2015). It is unsurprising that there remain some disciplinary boundaries between empirical and normative work in this area. However, all major decisions in the built environment in a context of climate change have normative implications. Failing to identify and explore these explicitly misses an opportunity to examine how the built environment has shaped inequities or injustices in the climate context, and how this sector could be used to reduce potential injustices moving forward. This editorial uses the notion of a multivalent approach to justice (described below) as a strategy for connecting many points of evidence about particular inequities to develop a cohesive and more powerful line of argument about how the built environment sector could support efforts towards climate justice. Built environment support for capabilities Climate change mitigation strategies Climate change adaptation strategies Sacred sites and cultural amenities Avoid damaging sacred or culturally significant sites or amenities when developing low-carbon infrastructure; reduce emissions related to sacred sites or cultural activities Develop meaningful strategies for managing the irreversible loss of sacred or culturally significant sites (including landscapes) Essential service infrastructure: Capability to benefit from basic services essential to maintaining personal and social life At a minimum, essential services would ensure all people can enjoy adequate, accessible, and safe water and sanitation (including human and non-human waste systems), food systems and public health Water and sanitation Ensure low-carbon, safe and adequate water and sanitation services Protect and/or redesign water and sanitation services for resilience in the face of extreme climate events and long-term impacts; guarantee the health and safety of water and sanitation workers even in the face of climate impacts Food systems Invest in human and material infrastructure to reduce greenhouse gas emissions of food systems through the entire supply chain Protect and/or redesign food systems infrastructure (including for subsistence production) for resilience in the face of extreme climate events and long-term impacts Public health Ensure adequate low-carbon and accessible public health, including minimising transportation needs Ensure public health infrastructure (and access to it) is protected from extreme climate events or long-term impacts Klinsky and Mavrogianni 419 5. Multivalent justice Any number of justice frameworks have been used to help scholars, practitioners, decision-makers and community members identify and pursue opportunities to move towards more just arrangements in the context of the built environment. For instance, many scholars—including those in this special issue (Baborska-Narozny et al.; Schünemann et al.; Willand et al.)—have done in-depth analyses of the distributive implications of decisions in this context as a way of making visible the often invisible or overlooked disparities experienced by different individuals or groups of individuals. Others have invested energy in asking questions about the types of metrics being used to guide policy making, pointing out that how such metrics are designed may in themselves present justice concerns (Axon et al.). Another strategy has been to look at decision-making processes as a key element of justice in this context, recognising that who is at the table has crucial implications for likely outcomes (Hamstead et al.; Passe et al.; Patrick et al.). All these strategies help us better identify existing injustices and, hopefully, imagine and implement ways of addressing these. This editorial suggests a multivalent approach to justice that includes distributive, procedural and recognition justice (Fraser 2001; Schlosberg 2007) may be a useful way to integrate lines of analysis in the justice arena. A multivalent approach to justice has been used in several climate related contexts (Klinsky 2015; Klinsky & Winkler 2018; Walker 2011) including in relation to energy poverty (Walker & Day 2012). A preliminary framework is presented below which scholars, practitioners and decision-makers could use to identify and address justice concerns within the built environment context: • Distributive justice concerns are the most commonly raised in the climate context and involve any claim based on how benefits and burdens are divided across multiple stakeholders. This includes the division of costs and op- portunities across renters and property owners within a city or claims about the distribution of vulnerability to particular impacts, such as heatwaves. • Procedural justice involves all claims about fair, transparent and inclusive decision-making. As with distributive justice, procedural justice claims are relevant to all climate change decision contexts. For instance, procedural justice could include the integration of undocumented residents in decision-making about adaptation infrastruc- ture or the involvement of communities in national and international negotiations about profound losses (e.g. territory or sacred sites). As already noted in the adaptation context, if processes are not actively designed with vulnerable populations, then exclusive adaptation could result, which reinforces rather than reduces pre-exist- ing inequalities (Meyer et al. 2018). Participatory system dynamics approaches are increasingly adopted in built environment research in recent years to facilitate the mapping of complex interactions between key actors and stakeholders (Eker et al. 2018). • Recognition justice emerges in the seemingly mundane but critically important decisions about policy framing and analysis. It asks how particular people or groups of people are made visible or invisible in a decision context. Who are seen as relevant stakeholders? Which characteristics or specific needs are included in models or frameworks for making climate relevant decisions? For instance, it has been argued that migrant workers and those in the informal sector have been systematically rendered invisible through state policies, which risks exposing them to even greater climate risks (Chu & Michael 2019). Others have pointed out how concepts such as urban sprawl or resilience have included or excluded key considerations during their evolution (Borie et al. 2019; Wilson & Chakraborty 2013). For researchers, recognition justice requires reflection about the operationalisation of concepts and analytic processes. Examples would include decisions about how to include non-monetary losses (such as the loss of culture, health or life); the extent to which data disaggregated by gender, ethnicity or any other potential for marginalisation are collected and used in climate planning; or the time horizon built into any analyses as this dictates who is ‘seen’ as relevant both historically and into the future. A multivalent approach to justice provides a practical framework for identifying potential injustices and linking them to decision-points that could be used to reduce these injustices. Table 3 outlines a simple checklist framework for analysts or practitioners to start integrating climate justice into the design and communication of research in the context of climate change and the built environment. To further demonstrate how the proposed framework could be employed by researchers and practitioners in the built environment field, two worked examples are provided in Table 4. Similarly, although it did not use this framework explicitly, the PCBF is a good example of a recently implemented programme that integrates procedural, recognition and distributive justice aims within a climate justice lens (Mondainé & Lee 2020). This framework allows for a process of moving from observations of inequities to analyses of why these happened and how decision processes could address them. In so doing, it also places responsibility on academics to acknowledge the considerable power that resides in research to frame an issue. Choices about which issues to focus on, which disparities to draw attention to, or which metrics to use are not mere technicalities but determine which and whose harms and benefits will become visible. Scholars can use this framework to systematically connect their work to that of others who may be looking at different manifestations of climate injustice, but that may involve similar causal patterns. Climate justice and the built environment420 Table 3: Framework for built-environment practitioners and researchers to enable the integration of climate justice into decision-making processes. Justice dimension Core questions Distributive Are there differences in the distribution of a particular benefit or burden (including risks)? If so, across what dimensions are these differences manifest (i.e. income, gender, age, race, location, country, time, other social identifiers etc.)? Are these patterns connected to any other patterns of difference in wellbeing or access to resources? Where did these disparities come from? Are there processes by which privilege and disadvantage accumulated? Are some being protected from risks at the expense of intensification of vulnerability for others? Procedural How have decisions been made that influence the distributions being noticed? Who is involved in decision-making, and in what capacities now and over time? Have some actors had stronger voices in this process than others? How did this occur? What would need to be put in place to change the capacity for all actors to have a voice in this process? Recognition What benefits/burdens have been included/excluded in the study or were included/excluded in the decision context being examined? Has analysis included means for observing both processes and outcomes of decision-making? Have the appropriate data been collected to enable meaningful comparison across groups? Which groups of people or aspects of people’s lives are captured by the metrics being used in the decision or study context, and which ones are left out? Are there assumptions built into the metrics being used that systemically privilege and/or devalue particular people or aspects of people’s lives? How does this decision or analysis deal with both past accumulation and future needs? How does this decision or analysis deal with jurisdictional boundaries and the potential for those outside these boundaries to be affected by this decision? Table 4: Examples of integration of the climate justice framework into the building and urban decision-making pro- cesses. Core questions Building-scale example: energy retrofit in housing Urban-scale example: summer outdoor thermal comfort Distributive justice Are there differences in the distribution of a particular benefit or burden? What dimensions are these differences manifest (i.e. income, gender, age, race, location, country, time, other social identifiers etc.)? Have differences in access to retrofitting across any socially relevant indicators in this context been checked for? In addition to the usual factors, retrofit decisions often differ across social housing and private funding schemes Have differences in access to comfortable outdoor spaces across any socially relevant indicators been checked for? Neighbourhood heat vulnerability hotspots may have developed over time so should be examined explicitly Are these patterns connected to any other patterns of difference in wellbeing or access to resources? In a retrofitting context this may including looking at intersections with income and rental/homeownership patterns Common intersections to examine include race, income and health status with geographical proximity to safe green space and safe and affordable mobility to green/public space Where did these disparities come from? Are there processes by which privilege accumulated as well as disadvantage? Are some being protected from risks at the expense of the creation of more vulnerability for others? Common drivers to examine might include rental/home ownership and systemic accumulation of disinvestment in low income or racialised neighbourhoods. Also may need to investigate overlap with social benefit policies generally Important to examine the geographical distribution of housing in relation to green/blue infrastructure investments and open public spaces across different income bands (Contd.) Klinsky and Mavrogianni 421 Core questions Building-scale example: energy retrofit in housing Urban-scale example: summer outdoor thermal comfort Procedural justice How have decisions been made that influence the distributions being noticed? How have funding mechanisms (private or public), rental regulations, building codes, or energy efficiency policies been enacted over time? Have there been lock-in decisions such as fixed grids, redlining or other segregation policies, risk accumulation due to jurisdictional boundaries or jurisdictional priority setting over time? Who is involved in decision-making, and in what capacities now and over time? What actors have been involved with these policies, and what have the mechanisms been for public engagement and representation? What actors have been involved with these policies, and what have the mechanisms been for public engagement and representation? Have some actors had stronger voices in this process than others? How did this occur? Particularly important groups to look at comparatively might include tenants and landlords; disadvantaged versus privileged residents; industry lobby groups versus community organisers Residents of lower income and/or racialised neighbourhoods are often under-represented in planning decisions due to structural/institutional injustice. Examining how such communities have been engaged in all planning processes may be important What would need to be put in place to change the capacity for all actors to have a voice in this process? Occupants need to be afforded a voice in retrofit uptake decisions. This could be achieved through a regulatory framework that empowers tenants (e.g. the UK’s Energy Act, Minimum Energy Efficiency Standards) Bottom-up citizen influence on decision-making could be fostered through participative platforms (e.g. climate citizen assemblies at the borough level). Recognition justice What benefits/burdens have been included/excluded in the study or were included/excluded in the decision context being examined? Has analysis included means for observing both processes and outcomes of decision-making? This might include looking at outcomes such as thermal comfort, household spending patterns or aggregate health outcomes. Examining process might require specific investment in process tracing, document analysis or other means This would include looking at neighbourhood-level thermal comfort; accessibility patterns; and perceived safety and inclusion. Examining process might require specific investment in process tracing, document analysis or other means Have the appropriate data been collected to enable meaningful comparison across groups ? What data exist and what is missing? New data may need to be collected to capture all drivers of potential differences What data exist and what is missing? New data may need to be collected to capture all drivers of potential differences Which groups of people or aspects of people’s lives are captured by the metrics being used in the decision or study context? Which ones are left out? This might include incorporating people’s economic context (costs, budgeting, prioritisation); behaviour and desires for living; household coping mechanisms or opportunity costs, habits and perceptions of energy use into analyses This might include people’s individual vulnerability factors along with social norms, practices, habits and perceptions of urban heat risk, the use of existing public space, and desires for public space Are there assumptions built into the metrics being used that systemically privilege and/or devalue particular people or aspects of people’s lives? For instance, do assumptions about ‘standard’/normative/rational energy use behaviour and retrofit uptake decisions fit this context or do they miss opportunity costs or lived realities of some? Common assumptions about use of public space based only on proportion of green coverage and proximity to one’s home may devalue some people’s use of/desire for green space How does this decision or analysis deal with both past accumulation and future needs? Has the accumulation of privilege/disadvantage been included in this analysis? If so, how has this or could this be done? Has the accumulation of privilege/disadvantage been included in this analysis? If so, how has this or could this be done? How does this decision or analysis deal with jurisdictional boundaries and the potential for those outside these boundaries to be affected by this decision? How have long-term energy and emission patterns and limitations been included in decision-making? How have other resource demands and their implications beyond jurisdictional boundaries been considered? How are broader implications of green space provision factored into climate action plans or other regional visions? If public space is to serve as a water management scheme as well, how are downstream users represented? Climate justice and the built environment422 6. Contributions to knowledge of this special issue With the intent of facilitating greater integration between work on the built environment and climate justice, this special issue brings together a set of studies (Table 1) aiming to frame built environment sector-related aspects of climate change within a climate justice concept framework. Several themes emerge from this body of work. As discussed above, distributive justice in the climate and built environment context may refer to costs (Baborska-Narozny et al.), opportunities (Willand et al.) or climate vulnerability distribution (Axon et al.). Baborska-Narozny et al. quantify the costs of a transition from solid fuel heating to other heating fuel types for disadvantaged households in Wroclaw, Poland. Such policies are mainly driven by combined carbon emissions and air pollution reduction policy targets. Unfortunately, they may lead to the unintended consequence of increasing fuel costs for lower income residents of social housing, where solid fuels are more common, thus further contributing to fuel poverty and magnifying existing inequalities. Similar concerns about the cost implications of energy transitions on low income communities are expressed by Axon et al.; their mixed methods study evaluates the impact of the implementation of a biomass energy system in low income housing near Liverpool, UK. The authors highlight the need to shift the focus from energy efficiency metrics primarily rooted to environmental and economic drivers to a more holistic consideration of just, community inclusive processes that do not amplify underlying inequalities. Willand et al. introduce the concept of retrofit poverty, a household’s opportunities to access retrofit funding, as a distributive justice issue. Opportunities to improve the energy and thermal performance of one’s home are not equally distributed across households. Through the analysis of home energy certificate data for the residential stock of Victoria, Australia, the study found that energy retrofit uptake was lower in areas with higher proportion of renters and lower income households. The authors stress the need to consider the ways in which market-based retrofit subsidies work; whilst they might result in comfort improvements, energy and carbon savings, the fact that these may not be enjoyed equally by all income groups can exacerbate underlying disparities. Schünemann et al. assess the effects of thermal retrofits on winter and summer thermal comfort, and associated energy use and carbon emissions, in typical multifamily housing units in Germany. They emphasise the importance of co-creating climate adaptation solutions with the inhabitants. For instance, particular attention needs to be paid to dwellings that rely on occupant controlled natural ventilation strategies for cooling. If ventilation strategies are not appropriately implemented, residents who have limited adaptive capacity will experience an increasing risk of summer indoor overheating as the climate becomes warmer, which will increase their vulnerability to climate change. Other papers in this special issue explore the nexus of procedural and recognition climate justice in the context of built environment decision-making (Hamstead et al.; Passe et al.; Patrick et al.). Hamstead et al. investigate the socio-technical and governance challenges that urban communities face as a result of extreme heat events. They use actor–network theory as the basis for the development of a decision-making framework for urban planning decisions in Arizona and New York. This framework recognises the justice aspects of climate change adaptation policy actions in order to build urban environments and communities that are well prepared for periods of excess heat. Another decision-making framework that embeds socio-technical information and capabilities for heat resilient urban environments is presented by Passe et al. focusing on disadvantaged neighbourhoods in Iowa. It is envisaged that such human-centred frameworks will facilitate the integration of human behaviour, socio-demographic and urban neighbourhood characteristics in socially just climate adaptation planning. Patrick et al. adopt an ecofeminist approach and uses a case study in rural Kenya to discuss the development of a conceptual and practical framework for the design of integrated solutions that tackle planetary health injustices; building design is presented as a tool that could promote equity, justice, health and climate change adaptation. 7. Current challenges for the built environment Several specific areas for further work emerge from this special issue, relating particularly to how the broader built environment community might contribute to a more just future in the context of climate change. We invite stakeholders involved in this sector to consider how they might fit within these specific challenges and arenas of activity. 7.1. Governance and advocacy • Governing bodies need to clearly establish and formally recognise existing commitments to protect vulnerable people in the context of climate change. There may also be a role for professional associations, education and training insti- tutions, and regulatory authorities to ensure professionals are explicitly aware of their role and responsibilities for guaranteeing human rights and the capabilities of all people even in the context of climate change. This includes obligations for the protection of all human rights, as well as to the non-discriminatory enjoyment of public services, including those provided through disasters and public health emergencies. Existing commitments upon which such obligations could be explicitly connected include the UN Declaration of Human Rights, commitments to the SDGs, and, where relevant, commitments to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). No- tably, particularly in the context of UNDRIP, this includes respecting free, prior and informed consent from relevant Indigenous populations for all infrastructure development on their traditional lands and territories. • Feasible and equitable pathways need to be implemented for the provision of healthy, low-carbon, climate resilient outdoor and indoor environments for vulnerable population groups in a changing climate. This will require the use of evaluation methods for planning and implementation that can capture the range of justice issues, including Klinsky and Mavrogianni 423 those that manifest through inequities in climate risk exposures, vulnerabilities, and adaptive capacity relevant to any project. It will also feature strong participatory efforts to ensure that the needs and concerns of those who are most vulnerable are integrated into decision-making. The multivalent framework presented above (Table 2) could be one such evaluation tool that is designed to be very flexible, although others could also be used depending on the situation. • Authorities need to regulate climate risks that impact beyond their jurisdictional boundary. Built environment activities benefitting those in their own jurisdictions must not impose harm on those beyond their boundaries (e.g. through sup- ply chains or other forms of risk displacement). Working with networks of jurisdictions may be one strategy for this. There may also be a role for professional associations to mandate their members’ actions to account for all climate risks regardless of jurisdictional boundaries. • Governing bodies (including regulatory authorities or professional associations where relevant) need to establish redress processes for vulnerable people. If a failure to meet obligations and responsibilities occurs, then a recourse to seek justice is necessary. 7.2. Documentation and analysis • There is a pressing need to systematically map existing currently fragmented research on climate risk exposures and vulnerabilities by socio-demographic features both across and within countries, and their implications on social inequalities/inequities and human development in the context of ongoing and future climate change. Gathering documentation of inequities is already starting to occur in this sector, which creates a baseline upon which further work could build. There is a clear call for researchers and for governing bodies at all levels to cooperate to conduct quality analyses, which includes generating and providing appropriately disaggregated high-quality data. • In light of the systemic nature of injustice underpinning many inequitable outcomes, there is currently insufficient data and analysis on the systemic barriers to access and implementation challenges of interventions for vulnerable populations. For example, many authors (Cayla, Maizi, & Marchand 2011; Gillard et al. 2017; Schaffrin & Reibling 2015) have pointed out that a deeper understanding of individual needs, behaviour patterns and energy use prac- tices in buildings across different income groups, and their relationship to contextual factors (e.g. welfare regimes, housing systems etc.) is required. This would include research that quantifies the adaptive capacity of different socio-demographic groups (based on age, gender, ethnicity, income, health status, social deprivation index etc.) to lessen the adverse impacts of climate change, and that critically identifies the root causes of these inequalities. • There is also a need for researchers and governing bodies to actively make analyses of risk exposures and of systemic barriers publicly available in order to support meaningful participation in further decision-making. To accelerate the impact of research outcomes, outputs tailored to specific key audiences (policymakers, built environment and public health practitioners, citizens) will need to be co-created through knowledge exchange. Institutions that sup- port and incentivise researchers (including through non-monetary forms of recognition), including universities and funding bodies, also have a role to play in ensuring that such information is made readily available. 7.3. Training and capacity-building • Academic and training programmes charged with training professionals involved in planning, designing and imple- menting built environment projects should ensure all trainees are equipped with awareness of inequities and social injustices generally and particularly in the context of climate change. Further integration of justice concerns into this sector will be hampered without foundational understanding of the core issues across all relevant professions. • The environmental health and wellbeing discourse must further integrate the built environment into assessments of social and health inequities. Health and social assessments, particularly in the context of climate change require interdisciplinary thinking between researchers working in the areas of built environment, health, social justice, industry, policymakers, non-governmental organisations (NGOs) and communities. Such interdisciplinarity work requires conceptual, financial and institutional support. There is a role for all relevant institutions, professional associations, and funders to support such integration. Climate change will inevitably pose a range of pressures on existing systems that already result in inequities. Stakeholders in the built environment sector have significant roles to play in moving towards a more just future to protect the vulnerable and ensure their wellbeing. Although the principles of climate justice may be new to some in the built environment, the scale and urgency of this responsibility is a mainstream issue for our buildings, infrastructure, towns and cities to remain viable, useable and adaptable. The design, operation, maintenance and use of built environment must afford protection to society—both now and in future. In light of current and predicted climate change, it is vital that decisions and actions do not hurt or disadvantage those most vulnerable within a society and those societies that will be negatively impacted, now and in the future. This special issue helps to initiate a discourse about the research, guidance and actions that will be needed. Further research and policy analysis contributions to this journal are welcome. Acknowledgements The authors acknowledge the valuable comments and editorial assistance provided by Richard Lorch. Climate justice and the built environment424 Competing interests The authors have no competing interests. References Agarwal, A., & Narain, S. (1991). Global warming in an unequal world: A case of environmental colonialism. Delhi: Centre for Science and Environment. Anguelovski, I., Irazábal-Zurita, C., & Connolly, J. J. T. (2019). Grabbed urban landscapes: Socio-spatial tensions in green infrastructure planning in Medellín. International Journal of Urban Regional Research, 43, 133–156. DOI: https://doi.org/10.1111/1468-2427.12725 Baeza, A., Bojorquez-Tapia, L. A., Janssen, M. A., & Eakin, H. (2019). Operationalizing the feedback between institutional decision-making, socio-political infrastructure, and environmental risk in urban vulnerability analysis. Journal of Environmental Management, 241, 407–417. DOI: https://doi.org/10.1016/j.jenvman.2019.03.138 Baker, J. L. (2012). Climate change, disaster risk, and the urban poor, urban development. World Bank. DOI: https://doi. org/10.1596/978-0-8213-8845-7 BASIC Experts. (2011). Equitable access to sustainable development: Contribution to the body of scientific knowledge. BASIC Expert Group. http://gdrights.org/wp-content/uploads/2011/12/EASD-final.pdf Borie, M., Pelling, M., Ziervogel, G., & Hyams, K. (2019). Mapping narratives of urban resilience in the Global South. Global Environmental Change, 54, 203–213. DOI: https://doi.org/10.1016/j.gloenvcha.2019.01.001 Bulkeley, H., Edwards, G. A. S., & Fuller, S. (2014). Contesting climate justice in the city: Examining politics and practice in urban climate change experiments. Global Environmental Change, 25, 31–40. DOI: https://doi.org/10.1016/j. gloenvcha.2014.01.009 Byrne, J., Ambrey, C., Portanger, C., Lo, A., Matthews, T., Baker, D., & Davison, A. (2016). Could urban greening mitigate suburban thermal inequity?: The role of residents’ dispositions and household practices. Environmental Research Letters, 11, 095014. DOI: https://doi.org/10.1088/1748-9326/11/9/095014 Cameron, E. S. (2012). Securing Indigenous politics: A critique of the vulnerability and adaptation approach to the human dimensions of climate change in the Canadian Arctic. Global Environmental Change, 22, 103–114. DOI: https://doi.org/10.1016/j.gloenvcha.2011.11.004 Camprubí, L., Malmusi, D., Mehdipanah, R., Palència, L., Molnar, A., Muntaner, C., & Borrell, C. (2016). Façade insulation retrofitting policy implementation process and its effects on health equity determinants: A realist review. Energy Policy, 91, 304–314. DOI: https://doi.org/10.1016/j.enpol.2016.01.016 Cayla, J.-M., Maizi, N., & Marchand, C. (2011). The role of income in energy consumption behaviour: Evidence from French households data. Energy Policy, Clean Cooking Fuels and Technologies in Developing Economies, 39, 7874–7883. DOI: https://doi.org/10.1016/j.enpol.2011.09.036 Cheng, J. J., & Berry, P. (2013). Health co-benefits and risks of public health adaptation strategies to climate change: A review of current literature. International Journal of Public Health, 58, 305–311. DOI: https://doi.org/10.1007/ s00038-012-0422-5 Chu, E., & Michael, K. (2019). Recognition in urban climate justice: Marginality and exclusion of migrants in Indian cities. Environment and Urbanization, 31, 139–156. DOI: https://doi.org/10.1177/0956247818814449 CJN! (2004). Climate Justice Now! A call for people’s action against climate change. Climate Justice Now! Retrieved from http://climatejustice.blogspot.com/2004_11_23_archive.html Cole, H. V. S., Lamarca, M. G., Connolly, J. J. T., & Anguelovski, I. (2017). Are green cities healthy and equitable? Unpacking the relationship between health, green space and gentrification. Journal of Epidemiology and Community Health, 71, 1118–1121. DOI: https://doi.org/10.1136/jech-2017-209201 Deng, H.-M., Liang, Q.-M., Liu, L.-J., & Anadon, L. D. (2017). Co-benefits of greenhouse gas mitigation: A review and classification by type, mitigation sector, and geography. Environmental Research Letters, 12, 123001. DOI: https:// doi.org/10.1088/1748-9326/aa98d2 Eker, S., Zimmermann, N., Carnohan, S., & Davies, M. (2018). Participatory system dynamics modelling for housing, energy and wellbeing interactions. Building Research & Information, 46, 738–754. DOI: https://doi.org/10.1080/0 9613218.2017.1362919 Escandón, R., Suárez, R., & Sendra, J. J. (2019). Field assessment of thermal comfort conditions and energy performance of social housing: The case of hot summers in the Mediterranean climate. Energy Policy, 128, 377–392. DOI: https:// doi.org/10.1016/j.enpol.2019.01.009 Field, C. B., Barros, V. R., Mach, K. J., Mastrandrea, M. D., van Aalst, M., Adger, W. N., Arent, D. J., Barnett, J., Betts, R., Bilir, T. E., Birkmann, J., Carmin, J., Chadee, D. D., Challinor, A. J., Chatterjee, M., Cramer, W., Davidson, D. J., Estrada, Y. O., Gattuso, J.-P., Hijioka, Y., Hoegh-Guldberg, O., Huang, H.-Q., Insarov, G. E., Jones, R. N., Kovats, R. S., Lankao, P. R., Larsen, J. N., Losada, I. J., Marengo, J. A., McLean, R. F., Mearns, L. O., Mechler, R., Morton, J. F., Niang, I., Oki, T., Olwoch, J. M., Opondo, M., Poloczanska, E. S., Pörtner, H.-O., Redsteer, M. H., Reisinger, A., Revi, A., Schmidt, D. N., Shaw, M. R., Solecki, W., Stone, D. A., Stone, J. M. R., Strzepek, K. M., Suarez, A. G., Tschakert, P., Valentini, R., Vicuña, S., Villamizar, A., Vincent, K. E., Warren, R., White, L. L., Wilbanks, T. J., Wong, P. P., & Yohe, G. W. (2014). Technical summary. In Field, C. B., Barros, V. https://doi.org/10.1111/1468-2427.12725 https://doi.org/10.1016/j.jenvman.2019.03.138 https://doi.org/10.1596/978-0-8213-8845-7 https://doi.org/10.1596/978-0-8213-8845-7 http://gdrights.org/wp-content/uploads/2011/12/EASD-final.pdf https://doi.org/10.1016/j.gloenvcha.2019.01.001 https://doi.org/10.1016/j.gloenvcha.2014.01.009 https://doi.org/10.1016/j.gloenvcha.2014.01.009 https://doi.org/10.1088/1748-9326/11/9/095014 https://doi.org/10.1016/j.gloenvcha.2011.11.004 https://doi.org/10.1016/j.enpol.2016.01.016 https://doi.org/10.1016/j.enpol.2011.09.036 https://doi.org/10.1007/s00038-012-0422-5 https://doi.org/10.1007/s00038-012-0422-5 https://doi.org/10.1177/0956247818814449 http://climatejustice.blogspot.com/2004_11_23_archive.html https://doi.org/10.1136/jech-2017-209201 https://doi.org/10.1088/1748-9326/aa98d2 https://doi.org/10.1088/1748-9326/aa98d2 https://doi.org/10.1080/09613218.2017.1362919 https://doi.org/10.1080/09613218.2017.1362919 https://doi.org/10.1016/j.enpol.2019.01.009 https://doi.org/10.1016/j.enpol.2019.01.009 Klinsky and Mavrogianni 425 R., Dokken, D. J., Mach, K. J., Mastrandrea, M. D., Bilir, T. E., Chatterjee, M., Ebi, K. L., Estrada, Y. O., Genova, R. C., Girma, B., Kissel, E. S., Levy, A. N., MacCracken, S., Mastrandrea, P. R., & White, L. L. (Eds.). Climate change 2014: Impacts, adaptation, and vulnerability. Part A: Global and sectoral aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press. Forde, J., Hopfe, C. J., McLeod, R. S., & Evins, R. (2020). Temporal optimization for affordable and resilient Passivhaus dwellings in the social housing sector. Applied Energy, 261, 114383. DOI: https://doi.org/10.1016/j. apenergy.2019.114383 Fraser, N. (2001). Recognition without ethics? Theory, Culture and Society, 18, 21–42. DOI: https://doi. org/10.1177/02632760122051760 Friel, S., Dangour, A. D., Garnett, T., Lock, K., Chalabi, Z., Roberts, I., Butler, A., Butler, C. D., Waage, J., McMichael, A. J., & Haines, A. (2009). Public health benefits of strategies to reduce greenhouse-gas emissions: Food and agriculture. Lancet, 374, 2016–2025. DOI: https://doi.org/10.1016/S0140-6736(09)61753-0 Fussell, E., Sastry, N., & Van Landingham, M. (2010). Race, socioeconomic status, and return migration to New Orleans after Hurricane Katrina. Population and Environment, 31, 20–42. DOI: https://doi.org/10.1007/s11111-009-0092-2 Gao, J., Kovats, S., Vardoulakis, S., Wilkinson, P., Woodward, A., Li, J., Gu, S., Liu, X., Wu, H., Wang, J., Song, X., Zhai, Y., Zhao, J., & Liu, Q. (2018). Public health co-benefits of greenhouse gas emissions reduction: A systematic review. Science of the Total Environment, 627, 388–402. DOI: https://doi.org/10.1016/j.scitotenv.2018.01.193 Gardiner, S. (2006). A perfect moral storm. Environmental Values, 15, 397–413. DOI: https://doi. org/10.3197/096327106778226293 Gibson, A. (2019). Climate change for individuals experiencing homelessness: Recommendations for improving policy, research, and services. Environmental Justice, 12, 159–163. DOI: https://doi.org/10.1089/env.2018.0032 Gillard, R., Snell, C., & Bevan, M. (2017). Advancing an energy justice perspective of fuel poverty: Household vulnerability and domestic retrofit policy in the United Kingdom. Energy Research and Social Science, 29, 53–61. DOI: https://doi.org/10.1016/j.erss.2017.05.012 Grear, A. (2014). Towards ‘climate justice’? A critical reflection on legal subjectivity and climate injustice: warning signals, patterned hierarchies, directions for future law and policy. Journal of Human Rights and the Environment, 5, 103-133. DOI: https://doi.org/10.4337/jhre.2014.02.08 Gütschow, J., Jeffery, M. L., Gieseke, R., Gebel, R., Stevens, D., Krapp, M., & Rocha, M. (2016). The PRIMAP-hist national historical emissions time series. Earth System Science Data, 8, 571–603. DOI: https://doi.org/10.5194/ essd-8-571-2016 Haines, A., McMichael, A. J., Smith, K. R., Roberts, I., Woodcock, J., Markandya, A., Armstrong, B. G., Campbell-Lendrum, D., Dangour, A. D., Davies, M., Bruce, N., Tonne, C., Barrett, M., & Wilkinson, P. (2009). Public health benefits of strategies to reduce greenhouse-gas emissions: Overview and implications for policy makers. Lancet, 374, 2104–2114. DOI: https://doi.org/10.1016/S0140-6736(09)61759-1 Haines, A., Smith, K. R., Anderson, D., Epstein, P. R., McMichael, A. J., Roberts, I., Wilkinson, P., Woodcock, J., & Woods, J. (2007). Policies for accelerating access to clean energy, improving health, advancing development, and mitigating climate change. Lancet, 370, 1264–1281. DOI: https://doi.org/10.1016/S0140-6736(07)61257-4 Hale, M. R. (2019). Fountains for environmental justice: Public water, homelessness, and migration in the face of global environmental change. Environmental Justice, 12, 33–40. DOI: https://doi.org/10.1089/env.2018.0031 Henrique, K. P., & Tschakert, P. (2019). Contested grounds: Adaptation to flooding and the politics of (in)visibility in São Paulo’s eastern periphery. Geoforum, 104, 181–192. DOI: https://doi.org/10.1016/j.geoforum.2019.04.026 Howden-Chapman, P., Matheson, A., Crane, J., Viggers, H., Cunningham, M., Blakely, T., Cunningham, C., Woodward, A., Saville-Smith, K., O’Dea, D., Kennedy, M., Baker, M., Waipara, N., Chapman, R., & Davie, G. (2007). Effect of insulating existing houses on health inequality: Cluster randomised study in the community. British Medical Journal, 334, 460–464. DOI: https://doi.org/10.1136/bmj.39070.573032.80 ICJN. (2002). Bali Principles of Climate Justice. International Climate Justice Network (IJCN). Retrieved from http:// www.indiaresource.org/issues/energycc/2003/baliprinciples.html IPCC. (2018). Global warming of 1.5°C. An IPCC special report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty. [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds)]. Intergovernmental Panel on Climate Change (IPCC). https://www.ipcc.ch/sr15/ Islam, S. N., & Winkel, J. (2017). Climate Change and Social Inequality (Working Paper No. 152 ST/ESA/2017/ DWP/152, October). Department of Economic & Social Affairs (DESA). Retrieved from https://www.un.org/esa/ desa/papers/2017/wp152_2017.pdf IWBI. (2016). The WELL building standard v1 with May 2016 addenda. International WELL Building Institute (IWBI), Delos Living LLC. Kelman, I. (2020). Disaster by choice: How our actions turn natural hazards into catastrophes. Oxford University Press. https://doi.org/10.1016/j.apenergy.2019.114383 https://doi.org/10.1016/j.apenergy.2019.114383 https://doi.org/10.1177/02632760122051760 https://doi.org/10.1177/02632760122051760 https://doi.org/10.1016/S0140-6736(09)61753-0 https://doi.org/10.1007/s11111-009-0092-2 https://doi.org/10.1016/j.scitotenv.2018.01.193 https://doi.org/10.3197/096327106778226293 https://doi.org/10.3197/096327106778226293 https://doi.org/10.1089/env.2018.0032 https://doi.org/10.1016/j.erss.2017.05.012 https://doi.org/10.4337/jhre.2014.02.08 https://doi.org/10.5194/essd-8-571-2016 https://doi.org/10.5194/essd-8-571-2016 https://doi.org/10.1016/S0140-6736(09)61759-1 https://doi.org/10.1016/S0140-6736(07)61257-4 https://doi.org/10.1089/env.2018.0031 https://doi.org/10.1016/j.geoforum.2019.04.026 https://doi.org/10.1136/bmj.39070.573032.80 http://www.indiaresource.org/issues/energycc/2003/baliprinciples.html http://www.indiaresource.org/issues/energycc/2003/baliprinciples.html https://www.ipcc.ch/sr15/ https://www.un.org/esa/desa/papers/2017/wp152_2017.pdf https://www.un.org/esa/desa/papers/2017/wp152_2017.pdf Climate justice and the built environment426 Klinsky, S. (2015). Justice and boundary setting in greenhouse gas cap and trade policy: A case study of the western climate initiative. Annals of the Association of American Geographers, 105, 105–122. DOI: https://doi.org/10.1080/ 00045608.2014.960043 Klinsky, S., & Winkler, H. (2018). Building equity in: Strategies for integrating equity into modelling for a 1.5°C world. Philosophical Transactions of the Royal Society A, 376, 20160461. DOI: https://doi.org/10.1098/rsta.2016.0461 Kolosna, C., & Spurlock, D. (2019). Uniting geospatial assessment of neighborhood urban tree canopy with plan and ordinance evaluation for environmental justice. Urban Forestry and Urban Greening, 40, 215–223. DOI: https://doi. org/10.1016/j.ufug.2018.11.010 LaRovere, E., Valente de Macedo, L., & Baumert, K. (2002). The Brazilian proposal on relative responsibility for global warming. In Baumert, K. A., Blanchard, O., Llosa, S., & Perkaus, J. (Eds.), Building on the Kyoto Protocol: Options for protecting the climate (pp. 157–173). World Resources Institute. Madianou, M. (2015). Digital inequality and second-order disasters: Social media in the Typhoon Haiyan recovery. Social Media Society, 1, 2056305115603386. DOI: https://doi.org/10.1177/2056305115603386 Mallaburn, P. S., & Eyre, N. (2014). Lessons from energy efficiency policy and programmes in the UK from 1973 to 2013. Energy Efficiency, 7, 23–41. DOI: https://doi.org/10.1007/s12053-013-9197-7 Malm, A. (2013). The origins of fossil capital: From water to steam in the British cotton industry. Historical Materialism, 21, 15–68. DOI: https://doi.org/10.1163/1569206X-12341279 Markandya, A., Armstrong, B. G., Hales, S., Chiabai, A., Criqui, P., Mima, S., Tonne, C., & Wilkinson, P. (2009). Public health benefits of strategies to reduce greenhouse-gas emissions: low-carbon electricity generation. Lancet, 374, 2006–2015. DOI: https://doi.org/10.1016/S0140-6736(09)61715-3 Markkanen, S., & Anger-Kraavi, A. (2019). Social impacts of climate change mitigation policies and their implications for inequality. Climate Policy, 19, 827–844. DOI: https://doi.org/10.1080/14693062.2019.1596873 Marmot, M., Allen, J., Goldblatt, P., Boyce, T., McNeish, D., Grady, M., & Geddes, I. (2010). Fair society healthy lives: The Marmot Review, strategic review of health inequalities in England post-2010. Institute of Health Equity, University College London (UCL). Marsh, R. (2017). Building lifespan: Effect on the environmental impact of building components in a Danish perspective. Architecture and Engineering Design Management, 13, 80–100. DOI: https://doi.org/10.1080/174520 07.2016.1205471 Meerow, S., & Newell, J. P. (2019). Urban resilience for whom, what, when, where, and why? Urban Geography, 40, 309–329. DOI: https://doi.org/10.1080/02723638.2016.1206395 Meyer, M. A., Hendricks, M., Newman, G. D., Hicks Masterson, J., Cooper, J. T., Sansom, G., Gharaibeh, N., et al. (2018). Participatory action research: Tools for disaster resilience education. International Journal of Disaster Resilience in the Built Environment, 9(4–5), 402–419. DOI: https://doi.org/10.1108/IJDRBE-02-2017-0015 Milner, J., Hamilton, I., Woodcock, J., Williams, M., Davies, M., Wilkinson, P., & Haines, A. (2020). Health benefits of policies to reduce carbon emissions. British Medical Journal, 368. DOI: https://doi.org/10.1136/bmj.l6758 Mitchell, B. C., & Chakraborty, J. (2015). Landscapes of thermal inequity: Disproportionate exposure to urban heat in the three largest US cities. Environmental Research Letters, 10, 115005. DOI: https://doi. org/10.1088/1748-9326/10/11/115005 Mondainé, E. D., & Lee, M. (2020). Commentary: Beyond theory: Climate justice in practice. Buildings & Cities. https:// www.buildingsandcities.org/insights/commentaries/beyond-theory-climate-justice-practice.html Nussbaum, M. C. (2011). Capabilities, entitlements, rights: Supplementation and critique. Journal of Human Development Capabilities, 12, 23–37. DOI: https://doi.org/10.1080/19452829.2011.541731 Perdue, W. C., Stone, L. A., & Gostin, L. O. (2003). The built environment and its relationship to the public’s health: The legal framework. American Journal of Public Health 93, 1390–1394. DOI: https://doi.org/10.2105/ AJPH.93.9.1390 Power, A. (2008). Does demolition or refurbishment of old and inefficient homes help to increase our environmental, social and economic viability? Energy Policy, Foresight Sustainable Energy Management and the Built Environment Project, 36, 4487–4501. DOI: https://doi.org/10.1016/j.enpol.2008.09.022 Romero Lankao, P., & Qin, H. (2011). Conceptualizing urban vulnerability to global climate and environmental change. Current Opinions in Environmental Sustainability, 3, 142–149. DOI: https://doi.org/10.1016/j.cosust.2010.12.016 Saad, A. (2017). Toward a justice framework for understanding and responding to climate migration and displacement. Environmental Justice, 10, 98–101. DOI: https://doi.org/10.1089/env.2016.0033 Sánchez-Guevara Sánchez, C., Mavrogianni, A., & Neila González, F. J. (2017). On the minimal thermal habitability conditions in low income dwellings in Spain for a new definition of fuel poverty. Building and Environment, 114, 344–356. DOI: https://doi.org/10.1016/j.buildenv.2016.12.029 Sandberg, N. H., Sartori, I., Heidrich, O., Dawson, R., Dascalaki, E., Dimitriou, S., Vimm-r, T., Filippidou, F., Stegnar, G., Šijanec Zavrl, M., & Brattebø, H. (2016). Dynamic building stock modelling: Application to 11 European countries to support the energy efficiency and retrofit ambitions of the EU. Energy and Buildings, 132, 26–38. DOI: https://doi.org/10.1016/j.enbuild.2016.05.100 https://doi.org/10.1080/00045608.2014.960043 https://doi.org/10.1080/00045608.2014.960043 https://doi.org/10.1098/rsta.2016.0461 https://doi.org/10.1016/j.ufug.2018.11.010 https://doi.org/10.1016/j.ufug.2018.11.010 https://doi.org/10.1177/2056305115603386 https://doi.org/10.1007/s12053-013-9197-7 https://doi.org/10.1163/1569206X-12341279 https://doi.org/10.1016/S0140-6736(09)61715-3 https://doi.org/10.1080/14693062.2019.1596873 https://doi.org/10.1080/17452007.2016.1205471 https://doi.org/10.1080/17452007.2016.1205471 https://doi.org/10.1080/02723638.2016.1206395 https://doi.org/10.1108/IJDRBE-02-2017-0015 https://doi.org/10.1136/bmj.l6758 https://doi.org/10.1088/1748-9326/10/11/115005 https://doi.org/10.1088/1748-9326/10/11/115005 https://www.buildingsandcities.org/insights/commentaries/beyond-theory-climate-justice-practice.html https://www.buildingsandcities.org/insights/commentaries/beyond-theory-climate-justice-practice.html https://doi.org/10.1080/19452829.2011.541731 https://doi.org/10.2105/AJPH.93.9.1390 https://doi.org/10.2105/AJPH.93.9.1390 https://doi.org/10.1016/j.enpol.2008.09.022 https://doi.org/10.1016/j.cosust.2010.12.016 https://doi.org/10.1089/env.2016.0033 https://doi.org/10.1016/j.buildenv.2016.12.029 https://doi.org/10.1016/j.enbuild.2016.05.100 Klinsky and Mavrogianni 427 Schaffrin, A. (2013). Who pays for climate mitigation? An empirical investigation on the distributional effects of climate policy in the housing sector. Energy and Buildings, 59, 265–272. DOI: https://doi.org/10.1016/j. enbuild.2012.12.033 Schaffrin, A., & Reibling, N. (2015). Household energy and climate mitigation policies: Investigating energy practices in the housing sector. Energy Policy, 77, 1–10. DOI: https://doi.org/10.1016/j.enpol.2014.12.002 Schlosberg, D. (2007). Defining environmental justice: Theories, movements, and nature. Oxford University Press. DOI: https://doi.org/10.1093/acprof:oso/9780199286294.001.0001 Sen, A. (1999). Development as freedom. Oxford University Press. Sen, A. (2005). Human rights and capabilities. Journal of Human Development, 6, 151–166. DOI: https://doi. org/10.1080/14649880500120491 Sharkey, P. (2007). Survival and death in New Orleans: An empirical look at the human impact of Katrina. Journal of Black Studies, 37, 482–501. DOI: https://doi.org/10.1177/0021934706296188 Smith, K. R., Jerrett, M., Anderson, H. R., Burnett, R. T., Stone, V., Derwent, R., Atkinson, R. W., Cohen, A., Shonkoff, S. B., Krewski, D., Pope, C. A., Thun, M. J., & Thurston, G. (2009). Public health benefits of strategies to reduce greenhouse-gas emissions: Health implications of short-lived greenhouse pollutants. Lancet, 374, 2091–2103. DOI: https://doi.org/10.1016/S0140-6736(09)61716-5 Smith, P., & Henríquez, C. (2019). Public spaces as climate justice places? Climate quality in the city of Chillán, Chile. Environmental Justice, 12, 164–174. DOI: https://doi.org/10.1089/env.2018.0041 Tabata, T., & Tsai, P. (2020). Fuel poverty in summer: An empirical analysis using microdata for Japan. Science of the Total Environment, 703, 135038. DOI: https://doi.org/10.1016/j.scitotenv.2019.135038 Teli, D., Dimitriou, T., James, P., Bahaj, A., Ellison, L., & Waggott, A. (2016). Fuel poverty-induced ‘prebound effect’ in achieving the anticipated carbon savings from social housing retrofit. Building Services and Engineering Research Technology, 37, 176–193. DOI: https://doi.org/10.1177/0143624415621028 Thomson, H., Simcock, N., Bouzarovski, S., & Petrova, S. (2019). Energy poverty and indoor cooling: An overlooked issue in Europe. Energy and Buildings, 196, 21–29. DOI: https://doi.org/10.1016/j.enbuild.2019.05.014 Tozer, L. (2020). Catalyzing political momentum for the effective implementation of decarbonization for urban buildings. Energy Policy, 136, 111042. DOI: https://doi.org/10.1016/j.enpol.2019.111042 Tschakert, P., van Oort, B., Clair, A. L. S., & LaMadrid, A. (2013). Inequality and transformation analyses: A complementary lens for addressing vulnerability to climate change. Climate and Development, 5, 340–350. DOI: https://doi.org/10.1080/17565529.2013.828583 Turan, Z. (2018). Finding the ‘local green voice’? Waterfront development, environmental justice, and participatory planning in Gowanus, NY. Urbani Izziv, 29, 79–94. DOI: https://doi.org/10.5379/ urbani-izziv-en-2018-29-supplement-005 UN. (2015). Transforming our world: The 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015. United Nations (UN). DOI: https://doi.org/10.1891/9780826190123.ap02 Ürge-Vorsatz, D., & Tirado Herrero, S. (2012). Building synergies between climate change mitigation and energy poverty alleviation. Energy Policy, 49, 83–90. DOI: https://doi.org/10.1016/j.enpol.2011.11.093 Vardoulakis, S., Dimitroulopoulou, C., Thornes, J., Lai, K.-M., Taylor, J., Myers, I., Heaviside, C., Mavrogianni, A., Shrubsole, C., Chalabi, Z., Davies, M., & Wilkinson, P. (2015). Impact of climate change on the domestic indoor environment and associated health risks in the UK. Environment International, 85, 299–313. DOI: https:// doi.org/10.1016/j.envint.2015.09.010 Walker, G. (2011). Environmental justice. Routledge. Walker, G., & Day, R. (2012). Fuel poverty as injustice: Integrating distribution, recognition and procedure in the struggle for affordable warmth. Energy Policy, 49, 69–75. DOI: https://doi.org/10.1016/j.enpol.2012.01.044 Wang, J., Zhang, Y., & Wang, Y. (2018). Environmental impacts of short building lifespans in China considering time value. Journal of Cleaner Production, 203, 696–707. DOI: https://doi.org/10.1016/j.jclepro.2018.08.314 Watts, N., Amann, M., Arnell, N., Ayeb-Karlsson, S., Belesova, K., Boykoff, M., Byass, P., Cai, W., Campbell-Lendrum, D., Capstick, S., Chambers, J., Dalin, C., Daly, M., Dasandi, N., Davies, M., Drummond, P., Dubrow, R., Ebi, K. L., Eckelman, M., Ekins, P., Escobar, L. E., Fernandez Montoya, L., Georgeson, L., Graham, H., Haggar, P., Hamilton, I., Hartinger, S., Hess, J., Kelman, I., Kiesewetter, G., Kjellstrom, T., Kniveton, D., Lemke, B., Liu, Y., Lott, M., Lowe, R., Sewe, M. O., Martinez-Urtaza, J., Maslin, M., McAllister, L., McGushin, A., Jankin Mikhaylov, S., Milner, J., Moradi-Lakeh, M., Morrissey, K., Murray, K., Munzert, S., Nilsson, M., Neville, T., Oreszczyn, T., Owfi, F., Pearman, O., Pencheon, D., Phung, D., Pye, S., Quinn, R., Rabbaniha, M., Robinson, E., Rocklöv, J., Semenza, J. C., Sherman, J., Shumake-Guillemot, J., Tabatabaei, M., Taylor, J., Trinanes, J., Wilkinson, P., Costello, A., Gong, P., & Montgomery, H. (2019). The 2019 report of The Lancet Countdown on Health and Climate Change: Ensuring that the health of a child born today is not defined by a changing climate. Lancet, 394, 1836–1878. DOI: https://doi.org/10.1016/S0140-6736(19)32596-6 WHO. (1948). Preamble to the Constitution of WHO as adopted by the International Health Conference, New York, 19 June–22 July 1946; signed on 22 July 1946 by the representatives of 61 states (Official Records of WHO no. 2, p. 100). World Health Organization (WHO). https://doi.org/10.1016/j.enbuild.2012.12.033 https://doi.org/10.1016/j.enbuild.2012.12.033 https://doi.org/10.1016/j.enpol.2014.12.002 https://doi.org/10.1093/acprof:oso/9780199286294.001.0001 https://doi.org/10.1080/14649880500120491 https://doi.org/10.1080/14649880500120491 https://doi.org/10.1177/0021934706296188 https://doi.org/10.1016/S0140-6736(09)61716-5 https://doi.org/10.1089/env.2018.0041 https://doi.org/10.1016/j.scitotenv.2019.135038 https://doi.org/10.1177/0143624415621028 https://doi.org/10.1016/j.enbuild.2019.05.014 https://doi.org/10.1016/j.enpol.2019.111042 https://doi.org/10.1080/17565529.2013.828583 https://doi.org/10.5379/urbani-izziv-en-2018-29-supplement-005 https://doi.org/10.5379/urbani-izziv-en-2018-29-supplement-005 https://doi.org/10.1891/9780826190123.ap02 https://doi.org/10.1016/j.enpol.2011.11.093 https://doi.org/10.1016/j.envint.2015.09.010 https://doi.org/10.1016/j.envint.2015.09.010 https://doi.org/10.1016/j.enpol.2012.01.044 https://doi.org/10.1016/j.jclepro.2018.08.314 https://doi.org/10.1016/S0140-6736(19)32596-6 Climate justice and the built environment428 Whyte, K. (2020). Too late for indigenous climate justice: Ecological and relational tipping points. WIREs Climate Change, 11, e603. DOI: https://doi.org/10.1002/wcc.603 Wilkinson, P., Smith, K. R., Davies, M., Adair, H., Armstrong, B. G., Barrett, M., Bruce, N., Haines, A., Hamilton, I., Oreszczyn, T., Ridley, I., Tonne, C., & Chalabi, Z. (2009). Public health benefits of strategies to reduce greenhouse- gas emissions: Household energy. Lancet, 374, 1917–1929. DOI: https://doi.org/10.1016/S0140-6736(09)61713-X Willers, S. M., Jonker, M. F., Klok, L., Keuken, M. P., Odink, J., van den Elshout, S., Sabel, C. E., Mackenbach, J. P., & Burdorf, A. (2016). High resolution exposure modelling of heat and air pollution and the impact on mortality. Environment International, 89–90, 102–109. DOI: https://doi.org/10.1016/j.envint.2016.01.013 Wilson, B., & Chakraborty, A. (2013). The environmental impacts of sprawl: Emergent themes from the past decade of planning research. Sustainability, 5, 3302–3327. DOI: https://doi.org/10.3390/su5083302 Wolch, J. R., Byrne, J., & Newell, J. P. (2014). Urban green space, public health, and environmental justice: The challenge of making cities ‘just green enough’. Landscape and Urban Planning, 125, 234–244. DOI: https://doi. org/10.1016/j.landurbplan.2014.01.017 Woodcock, J., Edwards, P., Tonne, C., Armstrong, B. G., Ashiru, O., Banister, D., Beevers, S., Chalabi, Z., Chowdhury, Z., Cohen, A., Franco, O. H., Haines, A., Hickman, R., Lindsay, G., Mittal, I., Mohan, D., Tiwari, G., Woodward, A., & Roberts, I. (2009). Public health benefits of strategies to reduce greenhouse-gas emissions: urban land transport. Lancet, 374, 1930–1943. DOI: https://doi.org/10.1016/S0140-6736(09)61714-1 WRI. (2020). World greenhouse gas emissions: 2016. World Resource Institute. Retrieved May 6, 2020, from https:// www.wri.org/resources/data-visualizations/world-greenhouse-gas-emissions-2016 Ziervogel, G., Pelling, M., Cartwright, A., Chu, E., Deshpande, T., Harris, L., Hyams, K., Kaunda, J., Klaus, B., Michael, K., Pasquini, L., Pharoah, R., Rodina, L., Scott, D., & Zweig, P. (2017). Inserting rights and justice into urban resilience: A focus on everyday risk. Environment and Urbanization, 29, 123–138. DOI: https://doi. org/10.1177/0956247816686905 How to cite this article: Klinsky, S., & Mavrogianni, A. (2020). Climate justice and the built environment. Buildings and Cities, 1(1), pp. 412–428. DOI: https://doi.org/10.5334/bc.65 Submitted: 27 June 2020 Accepted: 28 June 2020 Published: 14 July 2020 Copyright: © 2020 The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/. Buildings and Cities is a peer-reviewed open access journal published by Ubiquity Press OPEN ACCESS  https://doi.org/10.1002/wcc.603 https://doi.org/10.1016/S0140-6736(09)61713-X https://doi.org/10.1016/j.envint.2016.01.013 https://doi.org/10.3390/su5083302 https://doi.org/10.1016/j.landurbplan.2014.01.017 https://doi.org/10.1016/j.landurbplan.2014.01.017 https://doi.org/10.1016/S0140-6736(09)61714-1 https://www.wri.org/resources/data-visualizations/world-greenhouse-gas-emissions-2016 https://www.wri.org/resources/data-visualizations/world-greenhouse-gas-emissions-2016 https://doi.org/10.1177/0956247816686905 https://doi.org/10.1177/0956247816686905 https://doi.org/10.5334/bc.65 http://creativecommons.org/licenses/by/4.0/ 1. Introduction 2. Dimensions of climate injustice 3. The built environment and climate injustice 3.1. Long timeframes 3.2. Embedded accumulation 3.3. Wellbeing and built environment synergies 4. A capabilities approach 5. Multivalent justice 6. Contributions to knowledge of this special issue 7. Current challenges for the built environment 7.1. Governance and advocacy 7.2. Documentation and analysis 7.3. Training and capacity-building Acknowledgements Competing interests References Table 1 Table 2 Table 3 Table 4 
work_2wnrh5mbafcgthdbjh3mnh3tki	----	Tim Forsyth Climate justice is not just ice Article (Accepted version) (Refereed) Original citation: Forsyth, Tim (2013) Climate justice is not just ice. Geoforum, online . ISSN 0016-7185 (In Press) DOI: 10.1016/j.geoforum.2012.12.008 © 2013 Elsevier B.V. This version available at: http://eprints.lse.ac.uk/48070/ Available in LSE Research Online: March 2013 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://www.lse.ac.uk/researchAndExpertise/Experts/profile.aspx?KeyValue=t.j.forsyth@lse.ac.uk http://www.journals.elsevier.com/geoforum http://dx.doi.org/10.1016/j.geoforum.2012.12.008 http://www.elsevier.com/ http://eprints.lse.ac.uk/48070/ 1 Climate justice is not just ice Tim Forsyth Department of International Development London School of Economics and Political Science Houghton Street London WC2A 2AE t.j.forsyth@ lse.ac.uk Published in: Geoforum (2014) mailto:t.j.forsyth@lse.ac.uk 2 Abstract Discussions about climate change and justice frequently employ dichotomies of procedural and distributive justice, and inter- and intra-generational justice. These distinctions, however, often fail to acknowledge the diverse experience of climate risks, or the contested nature of many proposed solutions. This paper argues for a reassessment of debates about climate justice based upon a greater diversity of risks and solutions such as integrating the reduction of social vulnerability simultaneously with mitigation. In effect, this implies reassessing the implicit use of Rawls’ model of justice as fair allocation of predefined risks and solutions, and instead considering Sen’s understanding of justice as inclusive debate about which risks require which solutions. Keywords: climate change, justice, development 3 Highlights ◦ The paper analyzes implicit assumptions made in many debates about climate change and justice, and distinguishes the common frames of procedural and distributive justice; and inter- and intra-generational justice. ◦ It argues that the analysis of justice needs to be applied to implicit assumptions about how climate change poses risks, and in turn how these create apparent solutions; and how far these are shared between more and less vulnerable people and countries. ◦ Models of just allocations of supposedly ‘global’ risks and solutions therefore need to be reassessed according to how far they reflect these diverse experiences. ◦ In turn, this analysis implies reassessing implicit Rawlsian approaches to justice abased on fair allocation, and exploring a more Senian approach of inclusive deliberation about which risks require which solutions. In climate change policy this implies reducing social vulnerability and building adaptive capacity in ways that are complementary to mitigation. 4 Climate justice is not just ice Environmental politics too often conflates what is urgent and distressing with what is just. In January 2011, newspapers reported how a female polar bear in the Arctic Ocean had swum continuously for an unprecedented nine days, losing her cub. Many commentators linked this event to how anthropogenic climate change is melting sea ice. ‘Polar bears …only occur in the Arctic where sea ice is found,’ said biologist George Durner, who conducted the survey. ‘By reducing greenhouse gas emissions, we can save sea ice habitat for polar bears.’1 At the same time, environmental activists in the USA were suing their government on behalf of polar bears. The government had, in late 2010, refused to amend the US Endangered Species Act in order to re-classify polar bears as ‘endangered’ rather than the less serious ‘threatened.’ O ne litigant declared: ‘The Obama administration delivered a lump of coal to the polar bear for Christmas. Ultimately, we are confident the court will …give polar bears the legal protection to which they are entitled.’ 2 Asking law courts to issue rights on behalf of polar bears is one example of how climate change and justice are now being linked. Yet, while the concerns about polar bears and many other aspects of climate change are indeed distressing and need attention, it does not always follow that imposing fast solutions is necessarily just. 1 http://www.onearth.org/article/polar-bears-nine-day-swim Accessed November 2012. 2 http://www.biologicaldiversity.org/news/press_releases/2010/polar-bear-12-23- 2010.html This statement is by the Center for Biological Diversity; other litigants include Greenpeace and the Natural Resources Defense Council. Accessed November 2012. http://www.onearth.org/article/polar-bears-nine-day-swim http://www.biologicaldiversity.org/news/press_releases/2010/polar-bear-12-23-2010.html http://www.biologicaldiversity.org/news/press_releases/2010/polar-bear-12-23-2010.html 5 Political processes need to pay more attention to how environmental problems – and solutions – are identified and seen as just. What’s wrong with justice? Environmental debates frequently use two main dichotomies to define justice. Yet, both overlap more than commonly thought. Both need to be rethought. The first dichotomy distinguishes distributive and procedural justice (Okereke, 2010a, b; Schlosberg, 2007; Sowers, 2007). Rawls’ (1971) classic discussion is most associated with distributive justice because it seeks a fair allocation to all parties if they adopt a procedure – called the ‘veil of ignorance’ – that asks them to imagine a fair allocation if no party can control the process of distribution. Sen’s (2009) positive critique of Rawls accepts this concept of justice, but also emphasizes procedure by arguing that rights of participation and inclusion are still evolving. The second common dichotomy is between intra-generational justice and inter- generational justice. The first protects the rights of future generations. The second seeks equality between current generations. Usually, these positions are linked to more developed societies and currently poorer countries (Redclift, 1987; Shue, 1992). Both of these dichotomies, however, fall down under two questions: who has defined ecological risks? What procedures can allow new participants to redefine risks? Rawls’ distributive approach is based on a procedure that does not question environmental goods and bads. And the distinction between inter- and intra- 6 generational justice is false because inter-generational justice is seeking the same rights to protect poorer societies’ future generations through securing access to development, with all its capacity to withstand environmental and other risks, today. Applying justice to environmental problems therefore is not simply based on allocating currently perceived risks and solutions, but on expanding how risks and solutions are defined. This is not a new activity. For years, much social science has emphasized the need to distinguish between protecting ecosystems as underlying entities, and in seeing the limitations in ecological concepts that have emerged to describe them. Problems emerge when these concepts and explanations are applied out of context (Forsyth, 2003, p. 6). Al Gore’s book, Earth in the Balance (1992, pp. 246-247) famously stated: ‘as it happens, the idea of social justice is inextricably linked in the Scriptures with ecology.’ This statement clearly justifies norms of social behaviour on the basis of fixed and unchanging ‘ecology.’ But Gore’s assertion does imply how social norms have defined ‘ecology.’ There is much in Gore’s vision of ecology that is a metaphor for acting responsibly within limits. Indeed, ecologists in the 1960s dubbed ecology ‘the subversive science’ because it represented a communal response to individualism. Eugene Odum (1964, p. 15) wrote ‘[ecology] deals with the structure and function of levels of organization beyond that of the individual,’ and Paul Sears (1964, p. 12) ‘by its very nature, ecology affords a continuing critique of man’s operations.’ Some people therefore use ecology as a framework for social justice. But the social influences on ecology – as a series of explanations of biophysical processes of cause-and-effect – are often only partially explored. 7 One example concerned how questions of including poorer countries were addressed under the Intergovernmental Panel on C limate C hange (IPCC) Working Group III. Some members were criticised in the 1990s for calculating the ‘value of life’ in accordance with national GDP – a procedure caricatured as valuing ‘one European as equal to ten C hinamen’ (Grubb, 1995, p. 471) (see also Vanderheiden, 2005). Yet, while policy analysts such as Michael Grubb sought to restore public trust in the IPCC by saying ‘there is a danger that economic evaluations… seek to enshrine in apparent objectivity the current value system of the practitioner’ (p. 472), other apparently objective claims go unexamined. Grubb, for example, starts his paper by focusing on ‘the increasingly pressing need for humanity to face the finite nature of the planet, and in doing so address the distributional issues relating to coping with the impacts of climate change’ (p. 463). In other words, Grubb wishes to assess the implicit assumptions in economic analysis of different nations’ vulnerability to climate change. But he does not consider how projections of climate change impacts themselves might also contain assumptions when applied to ‘humanity.’ How might the identification of impacts be based on equitable principles? And how does this affect the justice of proposed solutions? Rethinking distributive and procedural environmental justice Both the fixed basis of climate change impacts and the categories used to evaluate inclusiveness in climate change policy need to be rethought to achieve a fairer form of climate justice. The distribution of climate change solutions need to be defined in 8 ways that do not delegitimize appropriate economic growth; or which create additional risks from imposed policies. For example, in a recent World Bank publication, experts in the Environment Section called for a greater restoration of natural ecosystems as a way to enhance poorer people’s ability to cope with climate change impacts – an approach called ‘Ecosystem-based Approaches to Adaptation’ (World Bank, 2009). This report states: ‘natural ecosystems are resistant and resilient and provide a full range of goods and ecosystem services…’ (p. 47), but then claims ‘agriculture is already one of the greatest threats to natural ecosystems worldwide’ (p. 63). This statement does not acknowledge that successful agriculture feeds people, provides livelihoods, and can contribute to national GDP. Many richer countries better able to cope with climate change have partly grown their economies through agriculture. The United Nations Framework Convention on C limate C hange (UNFCCC) has also framed policies in terms of fast and low-cost mitigation of greenhouse gas concentrations rather than combining these actions with building social and economic resilience. ‘Adaptation’ to climate change has been seen mainly as reducing impacts of physical events such as floods and storms, rather than more development-oriented approaches such as diversifying livelihood options in affected regions (Burton, 2009). These approaches seek to address climate-change risk in terms of the additional biophysical events that can be linked to greater greenhouse-gas concentrations, rather than understand what social, economic, and political lack of capacity might make these physical changes problematic among poorer societies. Indeed, mitigation, 9 crudely and cheaply done, can enhance social vulnerability and hence incur additional social injustices (Marino and Ribot, 2012). Accordingly, as things stand, the UNFCCC Adaptation Fund is partly funded through a two percent levy on proceeds of certified emissions reduction units coming from the UNFCCC’s Clean Development Mechanism (C DM). Yet, critics from developing countries have often complained that the CDM has not delivered its original intention to enhance ‘sustainable development’ in accordance with the objectives o f the UNFCCC because it has largely focused on fast mitigation projects such as greenhouse gas destruction, rather than building livelihoods or local technological capacities in poorer countries (Boyd et al., 2009). Related projects that encourage fast- mitigation through carbon-offset forestry have also been claimed to lock up land with little immediate developmental benefit. The assumption is that fast mitigation or carbon sequestration will benefit all. But, mitigating global greenhouse gas concentrations with no attention to local social vulnerability to climate change or climate change policies might create additional risks for local people. According to (Kjellén, 2006, p. ix) ‘there is a risk that present adaptation strategies may reinforce vulnerability, if not properly conceived and legitimately implemented.’ An alternative approach is seeking solutions that mitigate climate change without compressing the rights to growth or the protection of vulnerable people. These kinds of options incorporate the essence of Rawls’ search for inclusive benefits, but require us to reconsider what benefits are being distributed. One possible example is the proposed AdMit financial instrument, which seeks investors for projects that can 10 combine mitigation and adaptation. 3 These projects can reduce greenhouse gas emissions as well as contribute to poverty reduction, development, and the sustainable use of resources. For example, urban waste management can mitigate climate change through methane capture and recycling, but also provide livelihoods if they employ local waste sorters (Forsyth, 2007). Indeed, new initiatives to integrate climate change policy, agriculture and food security 4 offer more possibilities for development dividends than sequestration alone. These kinds of activities do not just slow down physical rates of environmental change – that is to say, keep ice frozen. Instead, they also address additional facets of climate risk such as reducing the vulnerability o f poorer societies in dealing with climate events. They do not assume common benefits from a single goal of mitigation alone. Conclusion Debates about climate justice need to acknowledge the limitations of commonplace uses of phrases such as distributive and procedural justice. Distributive justice is only possible when there is something to distribute. Procedural justice includes how we define, as well as distribute, these objectives fairly. C limate change policy is not simply allocating solutions to melting ice. And an inclusive process is not just diversifying discussion of how to do this. So far, environmental politics does not consider deeply enough how, or with whose concerns, justice might be applied. Paavola et al. (2006, p. 267) wrote: ‘distributive 3 http://www.iied.org/climate-change/key- issues/economics-and-equity- adaptation/admit#about Accessed November 2012. 4 http://ccafs.cgiar.org/ Accessed November 2012. http://www.iied.org/climate-change/key-issues/economics-and-equity-adaptation/admit#about http://www.iied.org/climate-change/key-issues/economics-and-equity-adaptation/admit#about http://ccafs.cgiar.org/ 11 justice is unlikely to be able to provide a sufficient foundation for climate justice because of the heterogeneity of involved parties. Therefore, procedural justice is needed to underpin the legitimacy of climate change regime.’ But this statement does not acknowledge the heterogeneity of risks – from both climate change and proposed solutions – as well as heterogeneity of parties. Plus, Page (2006) and Schlosberg (2007) write positively about a Senian capability approach to environmental justice. Page (2006, p. 70) claims it can ‘preserve an environment that enables future persons to retain the same substantive freedoms to be healthy, well fed, and well clothed that their ancestors possessed.’ This statement shows that inter-generational justice is also intra-generational. But this assertion does not engage with how environmental limits to this process are defined, or how the potential benefits and disadvantages of proposed solutions are identified. Environmental justice therefore needs to consider which risks are to be addressed, and to engage with a policy process that is not simply framed by what appear to be urgent solutions to problems that are currently seen as distressing. In Rawlsian terms, an ideal solution should allow climate policies to address all concerns. But there is a need to look beyond commonplace discussions of distribution and procedure, and instead see how including more diverse values and priorities of affected people might influence what is seen as urgent. An ideal solution does not overlook some people’s concerns, or make their problems worse. ‘Justice’ is not simply a quick reference to acting ethically, but rather a source of reasoning for what is considered legitimate. At worse, it can become ‘a mere cover 12 for self- interested bargaining’ (Okereke, 2010, p. 463). The Rawlsian model of distributive justice should not be applied without reconsidering what it assumes are the risks to be distributed. We should not let an epistemological, ‘veil of ignorance’ deceive us that what we think are natural limits or appropriate solutions are universally applicable or without potential negative impacts on others. REFERENCES Boyd, E., Hultman, N., Roberts, T., Corbera, E., Cole, J., Bozmoski, A., Ebeling, J., Tippman, R., Mann, P., Brown, K., Liverman, D., 2009. Reforming the CDM for sustainable development: lessons learned and policy futures. Environmental science and policy 12, 820-831. Burton, I., 2009. Climate change and the adaptation deficit, in: Schipper, E.L., Burton, I. (Eds.), The Earthscan Reader on Adaptation to C limate Change. Earthscan, London, pp. 89-98. Forsyth, T., 2003. Critical Political Ecology : The Politics of Environmental Science. Routledge, London ; New York. Forsyth, T., 2007. Promoting the “Development Dividend” of C limate Technology Transfer: Can Cross-sector Partnerships Help? World Development 35 (10), 1684- 1698. Gore, A., 1992. Earth in the Balance: Forging a New Common Purpose. Earthscan, London. 13 Grubb, M., 1995. Seeking fair weather? Ethics and the international debate on climate change. International Affairs 71, 462-496. Kjellén, B., 2006. Foreword, in: Adger, W., Paavola, J., S., H., Mace, M. (Eds.), Fairness in Adaptation to Climate Change. MIT Press, Cambridge, MA, pp. vii-x. Marino, E., Ribot, J., 2012. Special Issue Introduction: Adding insult to injury: Climate change and the inequities of climate intervention. Global Environmental Change 22 (2), 323-328. Odum, E., 1964. The new ecology. Bioscience 14 (7), 14-16. Okereke, C., 2010a. C limate justice and the international regime. Wiley Interdisciplinary Reviews: Climate Change 1, 462-474. Okereke, C., 2010b. Global Justice and Neoliberal Environmental Governance. Routledge, London. Paavola, J., Adger, W., Huq, S., 2006. Multifaceted justice in adaptation to climate change, in: Adger, W., Paavola, J., Huq, S., Mace, M. (Eds.), Fairness in Adaptation to Climate Change. MIT Press, Cambridge, MA, pp. 263-278. Page, E., 2006. Climate change, Justice and Future Generations. Elgar, Northampton, MA. Rawls, J., 1971. A Theory of Justice. Belknap Press, Cambridge, MA. Redclift, M., 1987. Sustainable Development: Exploring the Contradictions. Routledge, London. Schlosberg, D., 2007. Defining Environmental Justice: Theories, Movements, and Nature. Oxford University Press, Oxford. Sears, P.B., 1964. Ecology – a subversive subject. Bioscience 14 (7), 11-13. Sen, A., 2009. The Idea of Justice. Allen Lane, London. 14 Shue, H., 1992. The unavoidability of justice, in: Hurrell, A., K ingsbury, B. (Eds.), The international politics of the environment. O xford University Press, O xford, pp. 373-397. Sowers, J., 2007. The many injustices of climate change. Global Environmental Politics 7 (4), 140-146. Vanderheiden, S., 2005. Missing the forest for the trees: Justice and environmental economics. Critical Review of International Social and Political Philosophy 8 (1), 51- 69. World Bank, 2009. Convenient Solutions to an Inconvenient Truth: Ecosystem-Based Approaches to Climate Change. World Bank, Washington. Forsyth_Climate_justice_is_not_just_ice_2013_cover Forsyth_Climate_justice_is_not_just_ice_2013_author 
work_2z4iqgkmy5bf7cki757tfx7yoy	----	Images of Justice Images of Justice Lela P. Love t Strong and appealing visions shape lives and actions profoundly. Con- sider how Martin Luther King's I Have a Dream vision, aligned with his phi- losophy of nonviolence, personal courage and self-sacrifice, propelled the ulti- mate integration of public facilities in America. In contrast, the Black Panther symbol and Black Power rhetoric energized an entirely different movement to address repression and the aftermath of a historical era that embraced the en- slavement of large groups of people. Or consider how Gandhi used nonvio- lent protest in India to shift power from "haves" to "have nots" in a manner that was inconceivable before or without his vision. The strength, clarity and appeal of different images of justice help deter- mine the acceptability and success of the processes associated with those images. For any system of justice to be acceptable to parties who believe that an injustice has occurred, the ideal behind and the workings of the process it- self must be consistent with a clear and compelling vision of fairness. While vision and reality can part company from time to time, buffeted by the exigencies of particular situations, one cannot stray far from the heart or soul of an enterprise without jeopardizing its fundamental health and well- being. In an effort to capture the vision behind the three major dispute resolu- tion processes, this essay will present an image of a judge, an arbiter and a mediator. The analysis will note how current practices, in many respects, have strayed from these images and point out the danger of having a process di- vorced from a compelling "justice" rationale. Litigation Standing straight and tall in public places, a blindfolded woman holds up scales. Since she is blindfolded, she cannot be swayed by gender, race, wealth, or other influences or advantages that one party might hold. On her scales, disputing parties rest their case: the best they can muster for them- 1. Lela P. Love is a clinical professor of law and director of the Kukin Program for Con- flict Resolution at Benjamin N. Cardozo School of Law. This essay is dedicated to individuals who have in their careers or personal lives stepped forward to rescue and revive victims of the inexorable working of systems of "justice." Most notably, in my own experience, Barry Scheck (Cardozo's Innocence Project) and Russell \Veatherspoon. Thanks to Dan vcitz. Simeon Baum and Martin Love for thoughtful comments and suggestions. selves and the worst they can present about the other side. The matter is weighed on these scales in public view, and the balance resolves the matter. The scales themselves get more precisely balanced after each weighing, after each case. The weight and moment of precise and particular factors are calibrated, and the blindfolded lady announces how much factors weigh, this time, and for all time. Should a party suspect that the scales were out of balance or the blind- fold had been lifted, he may appeal to higher authorities to test the integrity of the process. This lady is accessible to all, rich and poor alike. Like the other com- manding woman standing at the Golden Door in NYC harbor with a torch of liberty, she says, "Give me your tired, your poor, your humbled masses yearning . . . " And if one party invokes her aid, the other must answer and counter-weight the scale, or risk an unfavorable verdict. He must also risk the power behind this blindfolded figure-the power of the state to take and give property and liberty. If Martin Luther King were delivering an I Have a Dream Speech about the process this blindfolded woman symbolizes it might sound something like this: I have a dream that every person can bring a claim to a public place and an intelligent, experienced and impartial third party chosen or appointed by democratic process will as- sess the facts, apply the law and determine the outcome. The whole world will watch to keep this forum honest. I have a dream that this forum will be accessible, the procedures straightforward, efficient and understandable, the costs appropriate, and the determination speedy. I have a dream that judges will help define, clarify, and broadcast our public norms by focusing all their attention on the explication of the law as it intersects with the facts of each case. I have a dream that every judge is charged with ensuring that his or her corner of the dispute resolution universe offers a fair and clean playing field. No judge will try to co- erce settlement by threatening parties with onerous outcomes. Every judge will treat each party with courtesy and respect. Arbitration Wise, sophisticated, trusted, and honored in his community, the arbitrator is chosen by the parties who can agree that whatever such a person decides is just. The arbitrator does not wear blindfolds because the parties trust his dis- cretion. On the other hand, the arbitrator cannot meet privately with a party, because the parties do not trust each other. [Vol. 1: 29, 2000] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL The arbitrator stands, aloof from the parties, arms folded in skepticism, but listening attentively for each clue which will piece together the puzzle of facts he must see clearly. The gift the arbitrator gives the parties is a prompt decision informed by his expertise in the particular arena. His decision is bound to favor one party over the other, but his quick and precise award will allow the parties to move on with their lives and their businesses. There is no appeal from this arbitrator because, in choosing him, the par- ties chose to live with what he decides. Thus, the power of the arbitrator is immense, once conferred by the parties, and is further bolstered by the blind- folded lady who will ensure that his awards are honored. If a party were delivering an I Have a Dream speech about arbitration, it might sound something like this: I have a dream that I can create mV own forum and choose my own arbiter I have a dream that a special and wise expert in the particular arena of the dispute. whom I trust, can hear my dispute, and I can accept his or her judgment and put the matter behind me, win or lose. I have a dream that my dispute can be resolved in a private place, so that the indignities, dangers, and damages of a public forum do not compound the upset and anger of being in conflict I have a dream that arbitrators are charged with ensuring that their corner of the dispute resolution universe offers a fair and clean playing field. No arbitrator will try to coerce settlement by threatening parties with onerous outcomes. Every arbitrator will treat each party with courtesy and respect. Mediation In this image one sees a figure sitting with the parties, her hands reach- ing towards each of them as if to support them in telling their tale or to cau- tion them in listening to each other to weigh the matter more carefully. It is also possible that her outreached hands are pointing to the parties to remind them of their responsibility for dealing thoughtfully with their situation and each other, understanding the opportunities and risks inherent in various choices, and summoning their creativity in addressing the conflict. The figure is not alone or aloof. Her outstretched arms form a bridge be- tween the parties, so that communication and positive energy can flow again. Her presence is a catalyst setting in motion the potential that the parties hold. Unlike the blindfolded lady, the mediator sees all that is offered unpro- tected by formal procedure or rules of evidence. Unlike the arbitrator or the judge, the mediator may meet with the parties together or listen to them pri- vately so that each nuance of meaning and each atom of possibility are cap- tured and offered back, in their most palatable form, for the parties. The mediator's features are hazy, since the focus and light remains on the disputing parties. Her presence, however, exudes optimism, respect, and confidence in the parties' capacity. She brings an energetic and urgent sense that justice can be done by the parties' own hands. If a mediator were delivering an I Have a Dream speech about media- tion, it might sound something like this: I have a dream that I can offer a safe and private place for parties in conflict to come and sit together at a table. I have a dream that I can help disputing parties tell their stories and explain their feel- ings and values to each other in a manner that might enable one another to understand more clearly and perhaps build or preserve their relationship. I have a dream that the dispute can be resolved in a private place, so that the indignities, dangers, and damages of a public forum do not compound the upset and anger of being in conflict. I have a dream that I can assist parties in discovering or constructing outcomes that seem reasonable and optimal to them. How do current practices and trends part company with the blindfolded lady? In 1853, in his novel Bleak House, Charles Dickens sounded an alarm about the state of the courts: "This is the Court of Chancery . . .which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so over- throws the brain and breaks the heart; that there is not an honorable man among its prac- titioners who would not give-who does not often give-the warning, 'Suffer any wrong that can be done you, rather than come here.' "2 Similar sentiments have been echoed by eminent jurists and scholars. In 1982, Chief Justice Warren Burger summarized dissatisfaction with litigation: "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people."' 3 In addition to the shortcomings pointed out by Dick- ens and Burger, other trends jeopardize the accuracy and integrity of the im- age presented by the blindfolded "justice". For example, the system of plea bargaining in criminal cases has virtually supplanted trial by a jury of peers, 2. CHARLEs DIcKENs, Bleak House (first published in 1853), Penguin Classics 1971, at 51. 3. Warren Burger, Isn't There a Better Way?: Annual Report on the State of the Judiciary, Remarks at the Mid-Year Meeting of the American Bar Association (Jan. 24, 1982), in 68 A.B.A. J. 274, 275 (1982). [Vol. 1: 29, 2000] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL which places heavier charges, stiffer penalties, and the displeasure of the prosecutor and judge on the scales for any defendant so brash as to claim in- nocence and seek trial. Also, judges must manage and move heavy dockets, which places a premium on administrative and management skills over and above qualities and capacities necessary to weigh matters precisely and to ar- ticulate norms eloquently. 4 Finally, the expectation that judges become mediators of their own cases tempts the blindfolded lady, under the guise of "mediator", to coerce the parties into settlement out of fear of displeasing this mediator-judge.5 What happened to the wise arbiter and his efficient process? By the 1990's scholars and practitioners were saying that arbitration had been ru- ined.6 The key features of arbitration-simplicity, low cost, finality, and speed-have been eroded by lawyers who bring in the cumbersome attributes of litigation-formality, delay, great quantities of paper, motions, appeals, and high cost. 7 Additionally, the proliferation of arbitration clauses in employment and consumer agreements, places where it is unlikely that there is meaningful consent to an alternative form of conflict resolution, undermines the contrac- tual feature of arbitration as a process emanating from and built by the parties themselves. So arbitration shifts to being a litigation look-alike, but without the protections of litigation's publicly chosen judge, public forum, and ap- peals process or arbitration's protections of truly informed party consent and party-chosen neutral(s). What is happening to mediation? As lawyers are taking training pro- grams geared towards "spinning the mediator" to gain a competitive advan- 4. See State of the States: Dispute Resolution in the Courts. ruE CAwRozo 0.NIw' JoUtR. NAT Op Coiucr REsoLtrrov, wivcardozo.yuedulcojcr, quoting Daniel Weitz, N.Y.S. ADR Co- ordinator, stating: "Judges are often measured, reviewed and critiqued by the degree to which they can move cases along within certain time frames... A certain 'judicial badge of honor' has even evolved for those judges who have developed a reputation for being 'great settlers.' 5. See James J. Alfini, Risk of Coercion Too Great, DsUTm REsoLmtuou MAGAmE (Fall 1999) at 11 (concluding that judges should not mediate cases assigned to them for trial). 6. See generally L.EONARD L RiSKIN AND JAMEs E. WESmROOK, DtstM REsoLno. AND LAwyrRs (21d ed.) 585-588 (noting ways in which arbitration is becoming more like litigation and is losing its essential characteristics) and Kimberlee K. Kovach and Lela P. Love. Mapping Mediation: The Risks of Riskin's Grid, 3 Htv. NEG. L Rv. 71. at 90-91 and accompanying footnotes, (discussing how arbitration has lost much of its appeal due to becoming more like litigation). 7. See id. tage, and mediation (as arbitration has done) is becoming more legalized 8, mediation, too, might stray from the image of a mediator as a bridge between the real parties. For example, in many programs parties file pre-mediation confidential briefs with the mediator which often resemble litigation papers, rather than having features specifically targeted towards mediation. There is also a tendency for attorneys to choose (on behalf of their clients) mediators with extensive litigation or judicial experience who are expected to provide case evaluations, transforming mediation into an adjudicatory process.9 A log- ical result of these trends may be that, like arbitration, mediation may move away from its roots and become an attorney-dominated, adversarial and ever more costly proceeding.'0 In 1966 Martin Luther King and Stokely Carmichael participated in the "March Against Fear", a walk from Memphis, Tennessee to Jackson, Missis- sippi organized by leaders of the civil rights movement. During that march, tension developed between King and Carmichael. King was committed to nonviolence. At one point the members of the Mississippi Highway Patrol shoved demonstrators, and Carmichael bitterly complained. An activist com- mitted to nonviolence teased Carmichael about his reaction: "You see, Stokely, the difference between you and the military is that a soldier has sin- gleness of purpose. When you get shoved you get confused. If you're really not nonviolent, you ought to get a gun and be a guerilla."" Before the march was over, Carmichael's group broke away from the others and adopted the slogan, "Black Power!" Many date this incident as the beginning of the Black Power Movement.' 2 8. See The Director as Futurist: Jack Hanna Previews 'Coming Attractions' in ADR, 4 ADR REPORT no. 4,at 3-4 (Feb. 2000)(noting that mediation is becoming more adversarial, hostile and confrontational). 9. In a survey of 600 members of the Hillsborough County (Fla.) Trial Lawyers Section by Martha J. Cook, Esq., in which 160 lawyers responded, 90% of the respondents indicated that they would prefer "evaluative" mediation. See Martha J. Cook, Hillsborough Survey (1997); see also Kovach & Love, supra note 6, footnotes 70 and 72 and accompanying text at 85 (discussing an attorney preference for "evaluative" mediation). 10. See Mary W. Holden, As Courts Overflow, Mediation Flourishes, CHICAGO LAWYER. Mar. 1997, at 20 (quoting James J. Alfini: "Arguably what happened to arbitration is that law- yers got a hold of it and turned it into a mini-adjudication. I worry that's going to happen to me- diation as lawyers colonize the field."). See generally Kovach & Love, supra note 6, at 92-98 (discussing the mutation of mediation). 11. Attributed to Rev. James M. Lawson, Jr., who has been termed by historians the non- violent strategist of the civil rights movement and was a close advisor to Martin Luther King. Unpublished manuscript, written for the L.A. Time Magazine by historian Spencie Love, Profile of James M. Lawson, Jr. (1998)(on file with author). 12. Id. [Vol. 1: 29, 2000] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL Like Stokely Carmichael confronted by brutal Mississippi officers, the blindfolded woman might get confused when she is charged with settling cases and managing overwhelming dockets. When we impose an arbitrator on parties who have not accepted that person as their decision-maker, the ratio- nale for the process becomes muddled. They will be confused as to why the process is "just." When we ask a mediator to stand back and judge the mat- ter, she will get confused. We need to keep the images clear and true so that, at least, we have guide stars and, at best, we have meaningful alternatives when we seek systems for responding to the crisis of conflict. In this new millennium, we should continue to build novel processes, like the mini-trial, the summary jury trial, neutral experts, non-binding arbi- tration, medene (mediation combined with early neutral evaluation), arb-med and med-arb, 13 but each new process must have a clear rationale and norms of practice which place it in the constellation of processes offering parties a cohejrent method of achieving justice. Since we already have powerful, work- able images and processes, we must guard and develop our systems, proce- dures, protocols, and trained skilled practitiohers to deliver on the promises these ideas and symbols hold out. We must block trends that run counter to formative visions. Whether our processes are pure or hybrids, to keep their power they must keep close to their heart and soul, as King and Gandhi kept close to the visions they held dear. The processes and the practitioners in them must remember their point of origin. 13. For summary definitions and descriptions of these and other dispute resolution processes, see RisKiN & WVEsTBROOK. supra note 6. at 1-11. 36 
work_33xdbe5lh5hv7owwtacsqiuwem	----	Roland Kostić1 The Hugo Valentin Centre Uppsala University Original scientific paper UDK: 316.48(497.6) Received 14 May 2012 DOI: 10.2298/SOC1204649K TRANSITIONAL JUSTICE AND RECONCILIATION IN BOSNIA-HERZEGOVINA: WHOSE MEMORIES, WHOSE JUSTICE? Tranziciona pravda i pomirenje u Bosni i Hercegovini: čije uspomene, čija pravda? ABSTRACT This paper shows that transitional justice initiatives such as the trials at the International Criminal Tribunal for the Former Yugoslavia and the State Court of Bosnia and Herzegovina, the Commission for Srebrenica and the establishment of accurate statistics on deaths during the conflict have had only a limited impact on inter-group reconciliation in Bosnia and Herzegovina. Popular attitudes towards these initiatives are captured in surveys conducted in 2005 and 2010. The results are not surprising given that the absence, due to the level of external regulation and control, of a politics of post-Dayton state-building means that domestic politics takes place in an arena of dealing with the past. The international community legitimised the three prevalent conflict narratives as a way of achieving a peace settlement in Dayton. These communal narratives were used in the peace-building phase by the local elites to defend concessions gained during negotiations and to oppose changes imposed by external supervisors of the Dayton Peace Accords. This has transformed the debate over the recent conflict from a transitional process of coming to terms with the past to a permanent state of affairs. This process precludes reconciliation in terms of mutual acknowledgment of suffering and a nuanced understanding of the causes and dynamics of the violent conflict. KEY WORDS transitional justice; politics; reconciliation; Bosnia and Herzegovina; ICTY, OHR APSTRAKT U ovom radu se pokazuje da inicijative u domenu tranzicione pravde, kao što su suđenja pred Međunarodnim krivičnim sudom za bivšu Jugoslaviju i Državnim sudom Bosne i Hercegovine, Komisija za Srebrenicu i stvaranje tačne statističke baze podataka o poginulima tokom sukoba imaju samo ograničeno dejstvo na pomirenje među nacionalnim zajednicama u Bosni i Hercegovini. Stavovi javnosti prema tim inicijativama pokazuju se u anketama sprovedenim 2005. i 2010. godine. Rezultati ne iznenađuju s obzirom na to da, zahvaljujući visokom nivou spoljne regulacije i kontrole, izostaje politika postdejtonske izgradnje države, što znači da se domaća politika odvija u areni suočavanja s prošlošću. Međunarodna zajednica je legitimisala tri preovlađujuća narativa o sukobu, kao način da se postigne mirovni sporazum u Dejtonu. Te narative, vezane za nacionalne zajednice, koristile su lokalne elite tokom faze izgradnje mira, kako bi odbranile usputke koje su postigle tokom ———— 1 roland.kostic@valentin.uu.se 650 SOCIOLOGIJA, Vol. LIV (2012), N° 4 pregovora i usprotivili se izmenama koje su nametale spoljne instance nadgledanja Dejtonskog mirovnog sporazuma. Na taj način debata o nedavnom konfliktu pretvorena je iz tranzicionog procesa suočavanja s prošlošću u trajno stanje stvari. Taj proces onemogućava pomirenje u smislu uzajamnog priznanja patnje i nijansiranog razumevanja uzroka i dinamike nasilnog sukoba. KLJUČNE REČI tranziciona pravda; politika; pomirenje; Bosna i Hercegovina; ICTY; OHR Introduction2 Negotiating comprehensive peace agreements became popular after the end of the Cold War (Vinjamuri and Boesenecker, 2007:5). In the period 1989 to 2011, 178 peace agreements were signed in support of various diplomatic initiatives (Wallensteen, 2012: 81). Policymakers and scholars have argued that although the early, less comprehensive peace agreements were able to end the violence, they seldom dealt with the societal divisions in post-war societies (Borer, 2006:5). As a consequence, in addition to the range of state-building measures, various transitional justice mechanisms have been incorporated into peace agreements in order to facilitate sustainable post-accord peace-building (Kostić, 2007: 31–34; Kostić, 2008:205; Vinjamuri and Boesenecker, 2007: 5). It has been argued that state- building coupled with measures to deal with past atrocities and the issue of selective views of the past can lead to national reconciliation and lasting stability (EU, 2004; Huyse, 2005; Lederach, 1997, Serwer, 2012). In broad terms, a number of studies have focused on the need to acknowledge past events as a condition for parties to be able to reconcile and build a common future. Huyse, for example, discusses the goal of reconciliation in terms of reparation for past injustices, and the building or rebuilding of non-violent relationships between individuals and between communities (Huyse, 2005:19). According to such views, restoring a broken moral order requires that justice is seen to be done (Williams and Scharf, 2002: 16–22; Huyse, 2005: 97–98).3 In a similar vein, Priscilla Hayner writes that “reconciliation implies building or rebuilding relationships today that are not haunted by the conflicts and hatreds of yesterday” (Hayner, 2001: 161). Hayner also suggests a number of indicators for establishing the level of reconciliation in a society. These include how the past is integrated and spoken about between former enemies, whether contradictory versions of the past have been reconciled and whether relationships are based on the present or the past. ———— 2The author would like to thank to Tomislav Dulić, Vanessa Pupovac, Alexandra Kent, Jens Sörensen, Fredrik Söderbaum, Julian Reid, Giorgio Shani, Henning Melber, Kristine Höglund, and Karin Aggestam for their comments on earlier drafts of this paper. The paper has benefited from generous support from the Swedish Research Council. 3According to its proponents, the possible benefits of retributive justice include avoiding private revenge, the prevention of a return to power by the perpetrators, fulfilling an obligation to victims, individualising guilt, and strengthening legitimacy and the democratic process. Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 651 The prevailing logic suggests that while a combination of good governance and constitutional and legal equality can encourage inter-group cooperation in the post-war period (EU, 2004; Rigby, 2001:180), transitional justice measures such as tribunals and truth commissions generate accountability for war crimes, individualise accountability and facilitate a comprehensive understanding of the past (Rigby, 2001: 180; Williams and Scharf, 2001:16–22; Huyse, 2005). Together, these measures are believed to facilitate processes of inter-group and interpersonal reconciliation, which are considered the pillars of sustainable peacebuilding (Williams and Scharf, 2001; EU, 2004; Jeong, 2005: 12). However, numerous criticisms of transitional justice efforts have emerged in recent scholarly debate. Proponents of incorporating transitional justice mechanisms into a broader externally promoted liberal peace-building agenda argue that negotiations and power sharing among warring parties work against the idea of delivering truth and justice to the victims (Wiliams and Scharf, 2001). They suggest that external parties should be clearer from the outset about who is the victim and who is perpetrator, and impose just solutions to the conflict (see Wiliams and Scharf, 2001: 12–14). The other side of the debate criticises the inclusion of transitional justice mechanisms in a wider strategy of externally run liberal peace-building projects. As Sriram (2009: 98) points out, transitional justice solutions imposed by Western peace-builders may result in a primary focus on legal accountability. This may be problematic as an approach since it focuses primarily on individual rights and responsibilities and might not be seen as just in societies that emphasise group and community identity (Sriram, 2009: 100). In addition, it has been argued that the external imposition of the exercise of universal jurisdiction, such as was the case with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and remains so with the International Criminal Court (ICC), can disrupt delicate domestic peace and reconciliation processes (Sriram, 2009: 100; Hayden, 2011: 313). It has also been suggested that while not facilitating domestic reconciliation, such practices financially benefit international human rights lawyers and domestic human rights agencies (Hayden, 2011: 313, 325; Bilić, 2011: 305, 309) as well as local political elites (Subotić, 2009: 45–46). This critique of externally imposed transitional justice and its impact on reconciliation is important, but it does not fully explore the link between external peace-building and transitional justice, or how these affect processes of reconciliation in societies emerging from war. I argue in this paper that the problem is complex and is linked to a broader change in our understanding and the practice of conflict resolution since the end of the Cold War. Initially, conflict resolution was based on the idea of assisting the primary parties by means of mediation to arrive at their own solutions to peacefully resolving disputes (Galtung, 2012). However, since the end of the Cold War there has been an 652 SOCIOLOGIJA, Vol. LIV (2012), N° 4 increasing tendency for powerful third-party interventions and the hegemonic imposition on conflict-ridden societies of a liberal peace-building formula based on institution building, elections and market-oriented economic reforms (Ericsson and Kostić, 2013). The primary parties to the conflict are usually included as participants in the process, but often have little influence over its content or outcome (Chandler, 2006, 2011; Kostić, 2011). This external-local hybridity regarding the ownership is particularly relevant for a contemporary understanding of transitional justice and its impact on reconciliation. I argue that the inclusion of the primary parties legitimises their specific views on the causes and dynamics of conflict, that is, it legitimises the opposing beliefs about the source of the incompatibility. At the same time, external parties often have their own perspective on the conflict and proposals for its resolution—including a particular transitional justice mechanism (see Dragović- Soso and Gordy, 2010: 203; Krampe, 2013). This type of interaction places transitional justice practice in the realm of politics, in which differing narratives and framings of the past compete for dominance, because establishing the truth about a conflict legitimises what is seen as just and moral in the post-war political context (see Williams and Scharf, 2001: 12). In other words, instead of agreement on past events and a mutual acknowledgment of suffering, the dynamics of such hybrid processes result in a policy of policing the past and in preserving the conflicting believes about that past held by the primary parties. In such a societal context, the work and results of various transitional justice initiatives are viewed primarily from the perspective of existing collective narratives and political framings that legitimise and link selective group perspectives to the post-war situation. This theoretical argument is explored further using unique survey data from 2005 (n=2500) and 2010 (n=1500) on the popular perceptions of a number of transitional justice initiatives in Bosnia and Herzegovina. The next section briefly explores the linkages between negotiating peace agreements and the salience of selective group narratives, using the case of Bosnia and Herzegovina since the Dayton Peace Accords (DPA). I examine the issue of the legitimacy of conflicting collective memories in the context of peace-building, and discuss the impact this has on the reproduction and salience of mutually exclusive collective memory and the perceptions of justice that stem from it. In the sections that follow, I present group perceptions of the conflict in Bosnia and Herzegovina, and examine the goals and impact of the ICTY, the State Court of Bosnia and Herzegovina, the Commission of Srebrenica, and the Research and Documentation centre on inter-group reconciliation. The final section provides conclusions. The Role of Group Narratives about War in Peace-building It has been suggested that the socio-psychological infrastructure that evolves during an intractable conflict plays a determinative role in its development and Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 653 continuation, and later in its resolution and reconciliation (Bar-Tal, 2007:1432). There are three key elements of socio-psychological infrastructure: collective memories, an ethos of conflict and collective emotional orientation (Bar-Tal, 2007: 1432). Collective memory makes sense of the past as a function of the present state of the community’s existence, especially in the context of its confrontation with rival groups(s). Thus, collective memory usually has some basis in genuine past events, but is biased, selective and distorted in ways that meet the group’s present needs. Such memories tend to omit certain facts, insert doubtful ones and offer a purposive interpretation of past events (Bar-Tal, 2007: 1437). Yet, collective memory is treated by many community members as a truthful account of the past and a valid history of their group. In addition, communities evolve a narrative about the present—an ethos consisting of central societal beliefs dealing with the group’s orientation both at present and in the future (Bar-Tal, 2000: 139–142). Together, these provide a coherent and meaningful picture of the causes of conflict, its evolution and its link to the present (Devine-Wright, 2003). In the case of Bosnia and Herzegovina, contending Bosniak, Bosnian Serb and Bosnian Croat ethno-national narratives and believes about the political incompatibility emerged in a wider context of the dissolution of the former Yugoslavia. The war and its dynamics played a crucial role in the evolution of existing ethno-national framings of the root causes of the conflict, and resulted in three mutually exclusive ethno-national narratives about the role of their own community and the role of others in the Bosnian war. The US-led Western peace- making initiative and the signing of the Dayton Peace Accords in November 1995 brought an end to inter-ethnic violence (see Kostić, 2009). The way in which the violence ended, however, has had a huge impact on the further recognition of collective narratives about the war. The externally negotiated peace was a compromise which meant that there was no victorious side and no defeated side (Williams and Schafer, 2001:160–161). In addition, by having the political representatives of the Bosniak, Bosnian Serb and Bosnian Croat communities participated in peace talks, the US-led international mediators, at least in part, acknowledged and legitimised the prevailing collective memories of wartime events in order to get to a peace settlement.4 However, in terms of the interpretation and implementation of the Dayton Peace Accords, the US-led international community assumed total control of the process from the beginning. By controlling the political process, the Constitutional Court and the implementation mechanism through bodies such as the Office of the High Representative(OHR) and the Peace Implementation Council (PIC), US and ———— 4However, there was little agreement on the issue internationally. For the key international power, the US, the war was a case of genocidal violence against the Bosniak population. However, other major powers such as France, the UK, Russia and Germany to a lesser or greater extent divided responsibility between the three sides (for more see Wiliams and Scharf, 2001: 64-87). 654 SOCIOLOGIJA, Vol. LIV (2012), N° 4 EU policymakers believed that they could steer the evolution of the Dayton Peace Accords (Kostić, 2011). Throughout the process, the US-led international community sought to remove ’backward-looking’ provisions dealing with group rights and to promote ‘forward-looking’ provisions dealing with the rights of individuals (for more see Nystuen, 2005: 239–51; O’Brien, 2005: 108–109). Although formally involved, the Bosnia and Herzegovina political elites representing local constituencies were until recently de facto excluded from any meaningful influence over politics or the economy in Bosnia and Herzegovina (Chandler, 2005; Hayden, 2005).5 Presented with a situation of peace-building without politics, while facing continued external demands for the evolution of the Dayton Peace Accords, more or less democratically elected domestic elites developed a range of responses. The most prominent feature of this external-domestic dynamic was the engagements in a politics of the past (see Kostić, 2007: 361). In order to justify their own visions of the past and relate these to the present, political elites engaged in commemorations of tragic events, and continued to propagate their own side’s views about the causes the war, the hostility of the “other” and their own victimhood, while staying beyond the reach of the OHR.6 Reframing past events also allowed them to claim that the original content of the Dayton Peace Accords legitimized their particular position. In this ongoing process, relinquishing one’s own collective wartime narrative and accepting that of your opponent is a political defeat for the community rather than a step towards reconciliation. The predominant attitudes to and perceptions of the war and wartime events, as well as the political bickering about specific wartime events raised numerous questions for external supervisors of the Dayton Peace Accords. Could a common state be built without reconciling diametrically opposed collective narratives regarding the causes of war and the role different groups were perceived to have played? Could peace be built without delivering justice to victims of violence, and while the perpetrators of gross violations of human rights remained at large? Finally, could former enemies trust and respect each other without a minimum of mutual understanding of the past? In the light of the complex challenges posed by attitudes and the lingering sense of injustice in the aftermath of Bosnian war, a number of external transitional justice mechanisms were promoted to facilitate inter-group reconciliation and deal with the selective collective memories of the three communities. The most important were the International Tribunal for the Former Yugoslavia in The Hague, the War Crimes Chamber of the State Court of Bosnia and Herzegovina, the Research and ———— 5 For the views of the Bosnia and Herzegovina elites on their ownership and participation in post- Dayton politics see Kostić (2007: 183–192). 6 For examples of the attitudes of Bosnia and Herzegovina politicians to the past see Kostić (2007: 243–280). Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 655 Documentation Centre in Sarajevo and the Commission on Srebrenica. The following section discusses some the key findings on the popular attitudes concerning these initiatives. Communal Memories of War in Bosnia and Herzegovina Before presenting and discussing the findings on the contributions of various transitional justice initiatives to truth and justice, it is important to establish the state of collective memory about the war in Bosnia and Herzegovina. In order to do so, I use findings from surveys I conducted in cooperation with IPSOS in 2005 and 2010. Respondents were asked their views on the role of their own group and the character of the war, and to name the defensive military force in the conflict. Asked in 2005 if they agreed with the statement “my people have fought only defensive wars”, an overwhelming majority of Bosniaks, 85.3 per cent, Serbs, 76.2 per cent, and Croats, 75.9 per cent, strongly agreed. Although the number of those strongly agreeing with the statement fell in 2010, especially among Bosnian Serb respondents where 54.7 per cent totally agreed, the view that members of their own community fought a defensively oriented war still dominated across all three communities. TABLE 1. GROUPS AND PARTI CIPATI ON IN DEFE NSIVE WARS (PER CE NT) MY PE OPLE HAVE FOUGHT ONLY DEFENSIVE WARS (2005) NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL Totally agree 85.3 75.9 76.2 79.4 Somewhat agree 11.7 16.6 16.8 14.9 Somewhat disagree 1.8 2.9 4.1 2.9 Totally disagree .2 .5 .4 .4 Don’t know 1.0 4.1 2.6 2.5 MY PE OPLE HAVE FOUGHT ONLY DEFENSIVE WARS (2010) NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL Totally agree 81 70 54.7 68.6 Somewhat agree 16.6 24.5 33.5 24.8 Somewhat disagree 0.5 2.7 5.8 3 Totally disagree 0.3 0.8 0.2 0 Don’t know 1.0 2 5.8 2.9 The differences based on ethnic belonging are also fairly strong when the respondents are asked to define the character of the war in Bosnia and Herzegovina. It is apparent from the findings that there has been almost no change in the predominant ethno-national definitions of the war in Bosnia and Herzegovina. In 2010, 87.4 per cent of Serbs characterised the conflict as a civil war, while 96.6 per cent Bosniaks and 69.6 per cent Croats considered it to be an act of aggression on 656 SOCIOLOGIJA, Vol. LIV (2012), N° 4 Bosnia and Herzegovina. The complexity of the overall view of the past is particularly vivid when the interviewees were asked to name the military force(s) which, according to them, could be characterised as playing the role of defender in the recent war. TABLE 2. DEFINITI ON OF WAR IN BOSNI A AND HERZE GOVI NA (PE R CE NT) IN YOUR VIE W, WHI CH OF T HESE I S T HE BEST DEFINITI ON OF T HE LAST WAR IN BOSNI A AND HERZE GOVINA? (2005) NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL Civil war 3.7 16.7 83.6 34.2 Aggression 95.1 73.2 9.0 59.8 Don’t know 1.2 10.1 7.4 6.0 IN YOUR VIE W, WHI CH OF T HESE I S T HE BEST DEFINITI ON OF T HE LAST WAR IN BOSNI A AND HERZE GOVINA? (2010) NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL Civil war 2.7 28.3 87.3 39.4 Aggression 96.6 69.6 9 58.4 Don’t know 0.6 2.1 3.7 2.2 TABLE 3. WAR IN BOSNI A AND HERZE GOVI NA AND DE FINITI ON OF DEFENDERS (PE R CENT) PLEASE TELL US, ACCORDING TO YOU, WHICH OF THESE MILITARY FORCES CAN BE BEST CHARACTERISED AS DEFENDERS IN THE LAST WAR? (2005) NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL HVO 5.9 92.7 1.8 31.0 Armija BiH 91.4 1.2 1.2 34.0 Vojska RS .1 .1 89.6 29.8 Vojska AP Zapadne Bosne .6 .0 .0 .2 JNA .0 .3 4.5 1.6 Don’t know 2.0 5.7 2.9 3.4 PLEASE TELL US, ACCORDING TO YOU, WHICH OF THESE MILITARY FORCES CAN BE BEST CHARACTERISED AS DEFENDERS IN THE LAST WAR? (2010) NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL HVO 5.9 92.1 1.6 33.2 Armija BiH 91.2 6.6 2 33.2 Vojska RS .9 .6 88 29.8 Vojska AP Zapadne Bosne 1.5 .0 .6 .7 JNA .3 .4 6.8 2.5 Don’t know .2 .2 1 .5 When asked this question in 2005, a majority of the Croat respondents, 92.7 per cent, saw the Croat Defence Council (HVO) as defenders. Most Bosniaks, 91.4 Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 657 per cent, named the Army of Bosnia and Herzegovina (Armija BiH) as the defending force, while 89.6 per cent of the Serbs stated that the Army RS (Vojska RS) was the defender. Only 5.9 per cent of Bosniaks regard the HVO as defenders, while 4.5 per cent of Serbs primarily saw the Yugoslav Peoples Army (JNA) in this context. In the 2010 survey there was almost no change in the prevailing ethno- national perceptions that dominate popular opinion among the three groups in Bosnia and Herzegovina. Overall, the empirical findings clearly indicate that the members of the three ethno-national communities in Bosnia and Herzegovina maintain diverging perspectives on and memories of wartime events and actors. The vast majority of all the respondent groups share the view that their people had been fighting a defensive war. However, while a majority of Bosniaks and Croats tend to characterise the recent war as aggression, most Serbs see it as a civil war. Finally, when asked to name a defending military force, most Croats chose the Croat Defence Council, a majority of the Bosniaks the Army of Bosnia and Herzegovina and most Serbs the Army RS. The data presented above show vividly that, at present, there is hardly any common understanding of the past between the ethno-national communities in Bosnia and Herzegovina, and that the great majority of the members of each group continue to subscribe to mutually exclusive ethno-national narratives. Different mechanisms for promoting reconciliation in Bosnia and Herzegovina Retributive justice Delivering justice to victims is seen as a precondition for reconciliation. Justice has many faces, however, and retributive justice is one of them. The notion of retributive justice rests on the idea that war crimes and crimes against humanity require accountability and prosecution, since such actions threaten both the domestic and the international order. The idea behind retributive justice is that it reduces the risk of revenge, prevents a return to power by the perpetrators of war crimes and crimes against humanity, and leads to the individualisation of accountability, thereby removing the stigma of collective guilt from whole communities. Furthermore, by publicly acknowledging who was right and who was wrong, restorative justice can help to heal wounds and restore the self-confidence of most victims. Finally, trials may provide additional information to fill the gaps in knowledge about the past. This rationale has been obvious in the creation of the ad hoc International Criminal Tribunal for the former Yugoslavia and of the War Crimes Chamber of the State Court of Bosnia and Herzegovina. 658 SOCIOLOGIJA, Vol. LIV (2012), N° 4 The International Criminal Tribunal for the Former Yugoslavia The International Criminal Tribunal for the former Yugoslavia was established by United Nations Security Council Resolution 827 of 25 May 1993. Its purpose was to prosecute the persons responsible for the serious violations of international humanitarian law committed on the territory of the former Yugoslavia after 1 January 1991. The inclusion of the ICTY in the Dayton Peace Accords was envisaged as part of the external effort to promote justice and reconciliation in Bosnia and Herzegovina. Bosniak, Croat and Serb leaders committed themselves to cooperate with the ICTY in its efforts to deliver a more comprehensive narrative on wartime events and bring about a sense of justice for the victims. Initially, the ICTY prosecuted local perpetrators of war crimes in order to establish evidence to link senior military and political commanders to such events. However, its limited time and resources, and the large number of people to be indicted, led to a change in strategy. Senior military commanders and political leaders were indicted and prosecuted from all three communities in Bosnia and Herzegovina as well as the rest of the former Yugoslavia. Altogether, 161 persons were indicted by the ICTY. Proceedings have been completed in 126 cases, while 35 persons still await their final hearing. There have been 73 guilty verdicts, 5 people have been acquitted, 13 cases have been transferred to the local courts and 35 cases have been stopped, either because the indictment was withdrawn or because the accused died. In one of its most high-profile findings, the ICTY ruled that the massacre in Srebrenica perpetrated by the Bosnian Serb forces was a case of local genocide against Bosniaks in Srebrenica. However, the popular attitudes towards the ICTY trials noted in the 2010 survey show only a limited short-term impact on reconciliation, or delivering a narrative about the past and a sense of justice to victims. While 74.3 per cent of the Bosniaks, and 61.2 per cent of the Croats somewhat or totally agree that the work of the ICTY is precondition for just peace and coexistence, only 15.2 per cent of the Serb respondents somewhat or totally agree with this view. In addition, while 56.7 per cent of the Bosniaks somewhat or totally agree that the trials at the ICTY are fair, 56.6 per cent of Croat and 89.6 per cent of Serbs in BiH somewhat or totally disagree with this view. Furthermore, the attitude changes regarding the work of ICTY and its fairness between 2005 and 2010 are minimal. These findings are not surprising, given the presence of three conflicting group narratives about the war and its causes. In addition, it is impossible to control the existence of selective hearing among ordinary people, that is, the tendency for individuals to express an interest in the trials dealing with crimes against members of their own group, while ignoring the trials in which individuals belonging to their groups are prosecuted for war crimes. Such tendencies may lead to a confirmation of existing narratives. Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 659 TABLE 4. PERCEPTI ONS OF T HE ICTY IN 2005 (PE R CENT) TO WHAT EXTENT DO YOU AGREE WIT H T HE FOLLOWING STATE MENT S? NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL The war crimes tribunal in The Hague is a precondition for a just peace and normal relations Totally agree 51.6 18.7 4.7 26.0 Somewhat agree 28.7 38.4 11.1 25.8 Somewhat disagree 5.1 11.0 15.4 10.3 Totally disagree 11.0 27.7 63.3 33.5 Don’t know 3.7 4.2 5.5 4.4 The trials at the Tribunal are fair Totally agree 32.7 11.3 4.3 16.7 Somewhat agree 35.2 31.9 9.2 25.6 Somewhat disagree 9.3 15.2 11.2 11.7 Totally disagree 19.8 36.7 68.0 41.0 Don’t know 3.0 4.9 7.3 5.0 TABLE 5. PERCEPTI ONS OF T HE ICTY IN 2010 (PE R CENT) TO WHAT EXTENT DO YOU AGREE WIT H T HE FOLLOWING STATE MENT S? NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL The war crimes tribunal in The Hague is a precondition for a just peace and normal relations Totally agree 45.5 22.9 3.2 23.8 Somewhat agree 28.8 38.3 12.0 26.3 Somewhat disagree 10.3 19.5 24.6 18.1 Totally disagree 11.7 16.5 58.7 29 Don’t know 3.6 2.8 1.5 2.7 The trials at the Tribunal are fair Totally agree 24.8 10.9 4.0 13.2 Somewhat agree 31.9 29.2 5.2 22.1 Somewhat disagree 15.1 22.9 22.0 20.0 Totally disagree 24.0 33.7 67.6 41.7 Don’t know 4.2 3.3 1.2 2.9 With this in mind, the fact that Bosnian Serb political leaders and politicians have been tried and sentenced in the greatest number, followed by Bosnian Croats, probably explains why both Serbs and Croats in Bosnia and Herzegovina are sceptical about the processes and fairness of the ICTY (see Kostić 2007: 269–272).7 Nonetheless, given that the trials will not be completed until the end of 2014, and the process of reconciliation takes time, an understanding of the ICTY’s contribution to justice and reconciliation in Bosnia and Herzegovina will only become clear in the future. ———— 7 The positive perception of the ICTY has been greatly undermined by numerous controversies in relation to the trials or lack of thereof. As noted, prosecution of heads of states from the regions gave mixed results. Milošević died during the trial, while in the case of Alija Izetbegović and Franjo Tudjman ICTY issued general statements after their deaths that both would have been indicted if they have lived longer. Furthermore, the prosecution against Kosovo Albanian guerilla leader Ramush Haradinaj failed partly due to intimidation of key witnesses (Dragović-Soso and Gordy 2011: 190). 660 SOCIOLOGIJA, Vol. LIV (2012), N° 4 The War Crimes Chamber of the State Court of Bosnia-Herzegovina Since the ICTY has been unable to process all the war crimes suspects from Bosnia and Herzegovina during its time-limited period of operation, the Parliament of Bosnia and Herzegovina, acting on a law promulgated by the OHR in 2000, established the State Court of Bosnia and Herzegovina, and its War Crimes Chamber, in July 2002. The State Court of Bosnia and Herzegovina is a hybrid tribunal, since it is under national jurisdiction but employs both international and domestic judges (48 domestic and five international). In addition, it applies a mixture of international and domestic law in processing accusations of war crimes and human rights abuses. It was believed that the establishment of the State Court of Bosnia and Herzegovina would deliver justice regarding events that were not covered by the ICTY, cut the cost of the process and bring the proceedings closer to the affected population, thereby increasing ownership of the process. Since 2002, the Chamber has passed 93 sentences for war crimes and human rights abuses. Currently, 67 people have been indicted, linked to 32 unresolved cases of war crimes (OSCE 2011). Trials are expected to last for decades since the list of suspects contains some 10 000 names. Although the War Crimes Chamber has been in place for almost a decade, it is difficult to draw definite conclusion about its impact on justice and reconciliation in Bosnia and Herzegovina. The survey data from 2010 show that many in Bosnia and Herzegovina seldom follow the work of the War Crimes Chamber. Only 60 per cent of Bosnian Croat and 75 per cent of Bosnian Serb respondents followed the work of the Chamber either once or a few times a year. Even among Bosniaks, 52 per cent tended to follow the trials only once or a few times a year. TABLE 6. PERCEPTI ONS OF T HE BOSNI A AND HE RZE GOVINA WAR CRIME S TRIBUNAL IN 2010 (PE R CENT) TO WHAT EXTENT DO YOU AGREE WIT H T HE FOLLOWING STATE MENT S? NATI ONAL BE LONGING BOSNI AK CROAT SERB TOTAL The work of war crimeschamber of the BiH Court is a precondition for a just peace and normal relations Totally agree 44.1 27.5 5.2 25.6 Somewhat agree 34.2 31.6 16.6 27.4 Somewhat disagree 7.8 18.8 28.3 18.4 Totally disagree 5.4 15.9 40 20.4 Don’t know 8.5 6.2 9.9 8.2 The trials in the War Crimes Chamber of the BiH Court are fair Totally agree 29.7 7 2.2 12.9 Somewhat agree 43.2 27.6 9.4 26.7 Somewhat disagree 9.9 26.5 25.9 20.8 Totally disagree 8.3 32.3 52.7 31.2 Don’t know 8.9 6.6 9.8 8.4 Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 661 While 78.3 per cent of the Bosniak and 59.1 per cent of the Croat respondents either somewhat or totally agreed that the work of the War Crimes Chamber was a precondition for a just peace and coexistence, only 21.8 per cent of the Serb respondents either somewhat or totally agreed with this view. In addition, while 72.9 per cent of the Bosniaks viewed the trials at the War Crimes Chamber as fair, 78.6 per cent of the Serb and 52 per cent of the Croat respondents disagreed with this view. These data on attitudes to the War Crimes Chamber demonstrate the difficulties in delivering justice and accountability for war crimes in highly divided societies. First, the War Crimes Chamber lacks the capacity to deal with a large number of crimes, and until now only a small percentage of perpetrators have been prosecuted, which may have contributed to the perception of its arbitrariness. Second, considering the prevalence of three selective collective narratives about the war, and their impact on the social climate in Bosnia and Herzegovina, it is difficult to produce measured and fair punishment for individual war criminals without this being interpreted in terms of the responsibility and guilt of whole communities. There is also a substantial degree of political pressure from all sides, in an attempt to influence the investigations, trials and verdicts of the War Crimes Chamber.8 Finally, the Bosnian case also testifies to the general limitations of tribunals in swiftly altering established selective group narratives about war and promoting true or more nuanced perspectives on wartime events. The truth about the war in Bosnia and Herzegovina Truth is not a replacement for judicial trials. However, establishing the truth about past events is a very important element in the process of national and political reconciliation. The most common mechanism for truth seeking is national truth commissions. An alternative is truth finding commissions about specific war-time events. In addition, non-governmental projects are promoted in some instances to document abuses and human rights violations. Swedish International Development and Cooperation Agency (Sida) and the United State Institute of Peace (USIP), together with a local NGO, Truth and Reconciliation, argued for the establishment of a truth commission for Bosnia and Herzegovina. According to the survey data from 2010, 85 per cent of the Bosniaks, 83 per cent of the Croats, and 65 per cent of Serb respondents agree that it would be good for peace to form a truth commission. The initiative never materialised. The external supervisors of the peace process in BiH feared that such an initiative would draw away financial resources from the ICTY and would also compromise on-going processes at the tribunal (Dragović- Soso and Gordy, 2011; Dragović-Soso, 2012). This was coupled with absence of the domestic political will to support such an initiative, but also due to a lack of interest ———— 8 Interview with a prosecutor working at the War Crimes Chamber in Sarajevo, 13 October 2011. 662 SOCIOLOGIJA, Vol. LIV (2012), N° 4 from the victims’ associations (Dragović-Soso and Gordy, 2011). At the same time, there has been little political will to acknowledge the crimes committed by members of one’s own community or to apologise for such crimes. The Srebrenica Commission In order to establish the truth about the events in Srebrenica in the summer of 1995, and to increase awareness among the population of Republika Srpska of these events, in 2003 the OHR forced the Assembly of Republika Srpska to establish the Commission for Investigation of the Events in and around Srebrenica between 10 and 19 July 1995 (Dragović-Soso and Gordy, 2011: 204). Its final report was published in 2004. The Srebrenica Commission collected a significant amount of new information. It established that on 10–19 July1995, 7800 Bosniak men and boys were executed by the forces of the Republika Srpska Army. The Commission also described how the perpetrators moved the bodies to secondary graves in order to cover up their crimes. Guided by information from sources in Republika Srpska, the Commission was able to discover 32 gravesites. Finally, it established the structure of the military forces participating in the massacres, and created an identity database of those who perished in the massacres (The Commission for Srebrenica, 2004). The work of the Commission resulted in an official apology by the Government of Republika Srpska to the Bosniaks of Srebrenica on 10 November 2004 (Associated Press, 2004). In its apology, the Government of Republika Srpska acknowledged that a massive crime had taken place during the Republika Srpska Army offensive on Srebrenica in 1995, and expressed its readiness to face up to the tragic events of the war in Bosnia and Herzegovina. At the same time, the RS President Dragan Čavić insisted that there was no basis to speak of genocide in Srebrenica (Dragović- Soso and Gordy 2011: 205). A majority of the population in both Republika Srpska and Bosnia and Herzegovina are now familiar with the events in Srebrenica. According to the survey data from 2010, some 97 per cent of the Bosniaks, Serbs and Croats interviewed had heard about the events there. While 97.8 per cent of Bosniak and 96 Croat respondents considered these to be war crimes, this view was shared by only 55.7 per cent of the Serb interviewees. Among Serb respondents, 16.2 per cent did not know how to characterise the events, and 24.2 per cent viewed them as an unfortunate consequence of military operations. Regarding the apology by the Government of Republika Srpska, 36.8 per cent of the Bosniak respondents believed that it came under pressure from the international community, while 33 per cent believed it relevant to telling the truth about war crimes but not for reconciliation. By contrast, 35.3 per cent of Bosnian Croat interviewees considered the apology an important step towards inter-ethnic reconciliation, while 30.6 per cent believed that it came as a result of pressure from the international community. Among Bosnian Serb respondents, 27.3 per cent viewed it as an important step for inter-ethnic Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 663 reconciliation, 20.3 pre cent viewed it as important for truth about the events but nor for reconciliation, 20.6 per cent saw it as a result of international pressure, 21.4 per cent had not heard about it and 10.3 per cent did not have an opinion. It is important to note that despite the apology and the acknowledgement of the Srebrenica killings, leading Bosnian Serb politicians continue to object to its legal categorisation by the ICTY as a local genocide, and see this as an attempt to stigmatise the Serb population of Bosnia and Herzegovina and delegitimise Republika Srpska (Marić, 2010; Flego, 2012). The Research and Documentation Centre in Sarajevo and truth-seeking about the casualties of war Since April 2004, the internationally sponsored Research and Documentation Centre (RDC) in Sarajevo has been leading an additional and significant truth- finding initiative about the war in Bosnia and Herzegovina. The guiding ideas behind the centre are to establish and publish facts about the war, promote the truth in order to prevent selective manipulation of events, assist the judiciary in prosecuting suspected war criminals and strengthen civil society. Until 2009, the RDC also participated in the regional network of “civil society” organisations working to create a regional commission (RECOM) that aimed to establish the facts about the victims of all war crimes and other serious human rights violations committed on the territory of the former Yugoslavia during the wars of Yugoslav succession (Bilić, 2011: 305). The RDC has collected some one million documents, 60,000 photographs and 3500 hours of video material. It has made its findings available online, and organised numerous public lectures all over Bosnia and Herzegovina. Its work has led to a revision of previously quoted figures for the dead or missing as a result of the war. According to an RDC report, The Bosnian Book of the Dead, 97,207 died or are missing as a result of the war: Bosniaks lost 33,070 civilians and 30,966 soldiers; Croat losses were 2163 civilians and 5625 soldiers; and, according to the RDC, 4075 Serb civilians and 20,830 Serb soldiers died as a result of the war. Given the substantial number of missing persons, RDC experts anticipate that the final total figure may increase by another 10,000. The findings of the RDC have been independently confirmed by work by the Demographic Unit of the ICTY, which produced a similar figure of 104,732 dead during the war in Bosnia and Herzegovina. However, even these findings have been challenged and interpreted differently in different parts of Bosnia and Herzegovina. A recent survey from 2011 shows that 20 per cent of respondents agreed that the death toll was 100 000 or less, 32 per cent believed that the final figure will never be established, while some 48 per cent believed in the previously cited figure of 200,000 or more dead as a result of the war. Interestingly, in the Bosniak dominated Sarajevo 60 per cent of the respondents believed that 200,000 or more had died as a result of the war, while in 664 SOCIOLOGIJA, Vol. LIV (2012), N° 4 the Serb dominated Banja Luka 70 per cent agreed with the figure of 100 000 or fewer dead (Dnevni Avaz, 2011). Conclusions The war in Bosnia-Herzegovina was one of the bloodiest episodes since 1945. It had an immense impact on individuals, inter-group relations and society at large. However, the Bosnian case shows that when dealing with the consequences of mass violence, it is important to consider how the politics of external state-building affects reconciliation and what can be achieved by transitional justice initiatives. As is show in this paper, the outcomes of the various transitional justice initiatives tested in Bosnia and Herzegovina have been interpreted primarily from the fragmented perspectives of the three salient collective narratives. Thus, until now, the various measures have had only limited effects on promoting a common understanding of the past and a sense that justice has been done. Given that more than 18 years has passed since the beginning of DPA implementation, the question arises whether the intrusive external strategies of comprehensive political, economic, legal and institutional regulation that have been tested in Bosnia and Herzegovina have been able to achieve anything more than a no war, no peace situation. The prevalence of external neoliberal practices of regulation in political and economic life in Bosnia and Herzegovina has resulted in peace-building without politics. In a situation in which domestic politics about the organization of society and its future are not feasible, discussion about the past becomes the inherent arena for politics. By maintaining opposing narratives about past events, the members of the main three BiH communities have developed a way of legitimizing their own positions in response to claims by other communities and to the external regulation of domestic state-building processes. This in essence transforms the debate over the recent conflict from a transitional process of coming to terms with the past to a permanent state of affairs. The process, as seen in Bosnia and Herzegovina, precludes reconciliation in terms of mutual acknowledgment of suffering and a nuanced understanding of the causes and dynamics of the violent conflict. Finally, the Bosnian case shows that the meaning of reconciliation is not universal and often has specific cultural and political aspects. Therefore, before promoting various reconciliatory initiatives, it would be useful to establish what is to be reconciled and who are the actors in the process. The case of Bosnia and Herzegovina demonstrates that reconciliation has much to do with past communal claims and grievances, and their relation to current politics. This means that promoting reconciliation goes hand in hand with finding durable political solutions to existing incompatibilities. In consequence, this means that supporting a durable, locally produced and owned political settlement would remove a major obstacle to reconciliation among the populations and elites of Bosnia and Herzegovina. Roland Kostić: Transitional Justice and Reconciliation in Bosnia-Herzegovina... 665 References Bar-Tal, Daniel. 2007. “Sociopsychological Foundations of Intractable Conflicts”, American Behavioral Scientist, vol. 50, no. 11: 1430-1453. Bar-Tal, Daniel. 2000. Shared Beliefs in a Society- Social Psychological Analysis. Thousand Oaks, London, New Delhi: Sage Publications. Bilić, Bojan. 2011. “A Concept that is Everything and Nothing: Why not to Study (Post-) Yugoslav Anti-War and Pacifist Contention from a Civil Society Perspective“. Sociologija. vol. LIII, no. 3: 297- 322. Borer, Anne Tristan. 2006. “Truth Telling as a Peace-Building Activity: A Theoretical Overview”, in Tristan, Anne Borer (ed). Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies. Notre Dame: University of Notre Dame Press. “Bosnian Serbs issue apology for massacre”. Associated Press, Banja Luka, 11 November 2004.accessed on www.bosnia.org.uk on 24 May 2012. Chandler, David. 2005. “Introduction: Peace without Politics?”. International Peacekeeping, vol. 12, no. 3: 307 – 321. Devine-Wright, P. 2003. “A theoretical overview of memory and conflict”. In Cairns, E. and Roe, M.D. (Ed.), The role of memory in ethnic conflict. New York: Palgrave Macmillan. Dragović-Soso, Jasna and Gordy, Eric. 2010. “Coming to Terms with the Past. Transitional Justice and Reconciliation in the post-Yugoslav lands”. In Djoković, Dejan and Ker- Lindsay, James (ed) New Perspectives on Yugoslavia. Routledge. Dragović-Soso, Jasna. 2012. “Autopsy of a Failure: Attempts to Create a Truth and Reconciliation Commission in Bosnia and Herzegovina”. Paper presented at NEMMA Aarhus Workshop, “Twenty Years of Memory: Prosecuting, Memorializing and Remembering the Wars of Yugoslav Succession”. 30-31 January, Aarhus University, Denmark. E.D.A. 2011. „Manje od pola građana vjeruje da je u agresiji bilo 200 hiljada ili više žrtava”, Dnevni Avaz, 10 April. Sarajevo. Eriksson, Mikael and Kostić, Roland. 2013 (forthcoming). Mediation and Liberal Peace building: Peace from the Ashes of War?, London and New York: Routledge. EU Presidency Statement – Post-Conflict National Reconciliation – The Role of the United Nations. Statement to the Security Council of the United Nations by H.E. Ambassador Richard Ryan. Permanent Representative of Ireland to the UN on behalf of the European Union. (New York), January 26, 2004. Flego, Miroslav. 2012. „Dodik: Nikolić je u pravu, u Srebrenici nije bilo genocide”. Večernji list. Zagreb. 09 June 2012. Accessed on http://www.vecernji.hr/vijesti/dodik-nikolic-je- pravu-srebrenici-nije-bilo-genocida-clanak-418114 on 10 June 2012. Krampe, Florian. “The Liberal Trap - Peacemaking and Peacebuilding in Afghanistan after 9/11. 2013”. In Eriksson, Mikael and Kostić, Roland (ed) Mediation and Liberal Peace building: Peace from the Ashes of War?. London and New York: Routledge. Galtung, Johan. 2012. Peace by Peaceful Means- Peace and Conflict, Development and Civilisation, Los Angeles, London, New Delhi, Singapore, Washington, Sage Publications. Hayden, Robert. 2005. “Democracy without a demos? The Bosnian constitutional experiment and the intentional construction of nonfunctioning states”. East European politics and societies, vol. 19, no. 2: 226- 259. 666 SOCIOLOGIJA, Vol. LIV (2012), N° 4 Hayner, Priscilla B. 2001. Unspeakable Truths: Confronting State Terror and Atrocities. New York: Routledge. Huyse, Luc. 2005. “The Process of Reconciliation", in Bloomfield, Barns, David Teresa and Huyse, Luc (ed) Reconciliation after Violent Conflict – a Handbook, Stockholm: IDEA. Jeong, Ho-Won. 2005. Peacebuilding in Postconflict Societies: Strategies and Processes. London and Boulder: Lynne Rienner Publishers. Kostić, Roland. 2007. Ambivalent Peace: External Nation-building, Threatened Identity and Reconciliation in Bosnia-Herzegovina. PhD dissertation. Departmentof Peace and Conflict Research. Uppsala University. (pp. 421). Kostić, Roland. 2008. “Nation-Building as an Instrument of Peace? Exploring Local Attitudes Towards International Nation-Building Building and Reconciliation in Bosnia and Herzegovina”. Civil Wars, vol.10, no. 4: 386-414. Kostić, Roland. 2011. “Education through Regulation- External intervention in domestic politics in post-Dayton Bosnia and Herzegovina”. In Fjelde, Hanne and Höglund, Kristine (ed) Building Peace, Creating Conflict? Conflictual Dimensions of Local and International Peacebuilding. Lund: Nordic Academic Press. Lederach, John Paul. 1997. Building Peace: Sustainable Reconciliation in Divided Societies, Washington D.C.: USIP Marić, Boro. 2010. “Dodik: Zločin ne negiramo, tražimoistinu”. Politika. Beograd. issue of 20 April. Accessed on http://www.politika.rs/rubrike/region/Dodik-Zlochin-ne-negiramo- trazimo-istinu.lt.html on 25 May 2012. Nystuen, Gro. 2005. Achieveing Peace or Protecting Human Rights?: Conflict Between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement Leiden, NDL: Matinus Nijhoff Publishers. O'Brien, James. C. 2005. ”The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiations”. In: Zartman William & Kremenyuk Victor (ed.) Peace versus Justice: Negotiationg Forward- and Backward-Looking Outcomes. Lanham, Boulder, New York, Toronto, Oxford: Rowman& Littlefield Publishers. Rigby, Andrew. 2001. Justice and Reconciliation: After the Violence. Boulder, Colorado: Lynne Rienner Publishers. Serwer, Daniel. “Towards Reconciliation: A New Vision for the OSCE?”, paper presented at Session IV, OSCE Security Days, Vienna, 23-24 June 2012. Sriram, Chandra Lekha. 2009. “Justice as Peace? Liberal Peacebuilding and Strategies of Transitional justice”. Mac Ginty, Roger and Richmond, Oliver. (ed) The Liberal Peace and Post-War Reconstruction- Myth or Reality. New York and Oxon: Routledge. Subotić, Jelena. 2009. Hijacked justice: dealing with the past in the Balkans. Ithaca, New York: Cornell University Press. The Commission for Investigation of the Events in and Around Srebrenica Between 10th and 19the July 1995.Events in and Around Srebrenica Between 10th and 19th July 1995.RepublikaSrpska Government. Bosnia and Herzegovina. Banja Luka. 2004. Vinjamuri, Leslie and Boesenecker, Aron. 2007. Accountability and Peace Agreements Mapping trends from 1980 to 2006. Birmingham: Centre for Humanitarian Dialogue. 1- 56. Wallensteen, Peter. 2012. Understanding Conflict Resolution, 3rd edition, London: Sage. Williams. Paul R. and Scharf, Michael P. 2002. Peace with Justice? War Crimes and Accountability in the Former Yugoslavia. Lanham, Boulder, New York, Oxford: Rowman& Littlefield Publishers. 
work_34gmhf2s6ngnxda44hmy6uwdoq	----	'" REAFFIRMING REHABILITATION IN JUVENILE JUSTICE Dan Macallair, M.P.A Center on Juvenile and Criminal Justice San Francisco, CA Paper presented at the annual meetings of the Western Society of Criminology Berkeley, CA February 1991 Abstract This article examines the decline of rehabilitation in juvenile justice throughout much of the United States over the past 20 years. This decline was facilitated by the progressive community's abandonment of rehabilitation and their acceptance of the justice model as a means to restrict the growing number of youth in correctional institutions. The justice model was conceived as a means to impose confinement limitations through standardized sentencing, while accommodating conservative demands for retribution and punishment. However, contrary to expe<:tations, the justice model promoted an unprecedented rise in the number of incarcerated youth and a deterioration in institutional conditions. This was occurring despite mounting evidence demonstrating the superior effectiveness of rehabilitation models in altering patterns of delinquency. Conclusions were based on an analysis of juvenile correctional systems in California, Massachusetts, Utah, Washington. The evidence shows that rehabilitation should be reaffirmed as the foundation for a progressive agenda in juvenile justice. REAFFIRMING REHABILITATION IN JUVENILE JUSTICE TABLE OF CONTENTS Rehabilitation and the Juvenile Justice System Diversion and Deinstitutionalization The Ascendancy of the Justice Model The Impact of the Justice Model on Juvenile Correctional Systems Rehabilitation and Organizational Commitment Comparing Rehabilitation Models with Justice Models Reconsidering Rehabilitation Conclusion Graphs References I 2 3 4 6 8 9 12 Rehabilitation and the Juvenile Justice System For the past 20 years, the juvenile justice system in the United States has been the subject of the most intensive policy debates in its history. These debates were the result of a number of studies conducted during the 1970s which concluded that most correctional rehabilitation programs had little impact on the offender's post-release behavior. The most infamous of these studies was the Lipton, Martinson, and Wilks (1975) report. After examining 231 evaluation studies of correctional treatment programs, the authors concluded, "with few and isolated exceptions, the rehabilitative efforts that have been reported so fur have no appreciable effect on recidivism (1975, p.25): This statement, interpreted as "nothing works," resounded throughout correctional . bureaucracies, legislatures, and the media. The Lipton, Martinson, and Wilks report" was . published at a time when crime rates were on the rise (Krisberg, Schwartz, Litsky, Austin, 1986). Many viewed this trend as indicative of a breakdown in the moral and social order and the leniency of the criminal courts. The indictment of the rehabilitative model, along with growing public concern over crime, propelled a search for an alternative. Conservatives traditionally viewed the philosophy of rehabilitation with derision, because it cont1icted with their notion of deterrence and reciprocity through punishment. Liberals, lamenting the juvenile justice system'S historic emphasis on custody and control, abandoned their traditional support for rehabilitation as impractical. As a result of this dissension, rehabilitation experienced a precipitous decline throughout most of the United States during the 1980s (Greenwood 1986). The concept of rehabilitation in juvenile justice was based on the belief that childhood and adolescence are periods of growth and development. Since patterns of proper behavior evolve from nurturing, the goal of benign intervention was to serve the best interests of the child. With the state assuming the role of parent, formal legal procedures and protections were shunned in favor of an informal decision process (Empey 1982). For most of the 19th and 20th centuries, youths under the age of 18 were sent to institutions, also known as reform schools or training schools, for offenses such as stubbornness, thievery, truancy, assault, and lewdness. The institution's purpose was to provide a strict and isolated environment far from urban corruption where youths could be imbued with proper work habits and moral fortitude (Empey 1982). However, it was soon recognized that involuntary confinement in these instj.tutions bred the worst aspects of human behavior. As a result, staff became obsessed with maintaining Center on Juvenile and Criminal Justice • 1622 Folsom Street· San Francisco, California 94103 Page 2 order and security. As living conditions grew more restrictive and oppressive, youths became more recalcitrant and the institutional environment became the antithesis of humane .individualized care (Rothman 1980). After reviewing the history of the Massachusetts State Reform School at Westborough, Lief (1988, p.1) noted that despite continual attempts to "reconstruct architecture, secularize tbe curriculum, revise the roles of personnel, rename · philosophical objectives, and modify systems of punishment and contro1...it is striking how little the daily experiences of inmates and keepers changed over a period of 128 years." Under the institutional system, the goal of rehabilitation became subordinate to organizational demands and political expediency. Policy makers, needing a convenient response to crime and poverty issues, continued to expand the number of public training schools throughout the 19th and 20th centuries. By 1960, the position of institutions as the foundation for the juvenile correctional system stood unchallenged. Diversion and Deinstitutionalization During the 1960s, the efficacy of correctional institutions came under increasing assault (President's Commission on Law Enforcement and Administration of Justice, 1967). In response, reformers designed new strategies to reduce the number of institutionalized youth. Two primary reforms emerged from these efforts: diversion and deinstitutionalization. , Diversion was designed to encourage police, prosecutors, and probation officers to refer youths to community programs as an alternative to arrest and formal judicial processing. However, later evaluations revealed that diversion was practiced on youths who previously ... : would have been released at the time of intake and not formally processed (Klein 1975). In . -. addition, youths who were not deemed eligible for diversion were subjected to harsher · treatment and more severe sanctions (Palmer 1978). This situation led researchers to conclude · that diversion was actually extending systems of social control (Krisberg and Austin, 1981). Deinstitutionalization was intended to divert youths from correctional institutions once they were formally processed and committed. One of the most widely reviewed experiments of deinstitutionalization was carried out by the California Youth Authority (CY A) during the 1960s .. In an effort to slow its institutional population growth, the CY A, through state legislation, initiated a probation subsidy program to encourage counties to retain youths at the loca1leve!. While its purpose was to reduce commitments to the state juvenile correctional system, it was never intended to replace or supplant the CY A's institutional system. Later . studies revealed that throughout the period of probation subsidy, institutional expansion in California continued. Although the rate of commitments declined, periods of confinement Center on Juvenile and Criminal Justice' 1622 Folsom Street· San Francisco, California 94103 Page 3 within CY A institutions were steadily increased to maintain a consistent population. In addition, counties began expanding local training schools and secure detention facilities. The proportion of institutionalized youths throughout California remained unchanged during the period of probation subsidy (Lerman 1975). The Ascendancy of the Justice Model Disillusioned with the failed efforts of diversion and deinstitutionalization, progressive reformers sought to reconcile their strategies to the institutional system' s realities. To reach a compromise with conservative constituencies, many juvenile justice reformers embraced the justice or "just deserts" model of corrections (Cullen and Gilbert 1984; Castellano, 1986). First promulgated in the 1970s, the justice model is founded on the concept of fixed and uniform degrees of punishment for specific crimes. Its intent is to inject certainty and consistency into the sentencing process by limiting the discretion of judges and correctional personnel in determining lengths of incarceration. Under this scheme, correctional administrators are no longer expected to pursue rehabilitation or other forms of individualized intervention. Their main function is to administer punishments in a fair and humane manner (Fogel 1975). Contrary to the expectations of its proponents, the justice model strengthened the institutional system and left progressive advocates without a compelling alternative. In their critique of the justice model, researchers Cullen and Gilbert (1981, pp. 19-20) identified three primary failures of this strategy as a basis for progressive reform: First, in basing punishment strictly on the crime and not the criminal, implicit in the determinate sentencing paradigm is the assumption that the state not only has no right but also no obligation to do anything about the condition or needs of an offender. Yet, we may ask, is a philosophy that gives legitimacy to state neglect of individual needs likely to be more benevolent than one that mandates, however imperfectly, state concern? Second, it is highly ironic that those who mistrust the state to administer criminal justice rehabilitation in a just and humane manner are now placing their total faith in the state (the legislature in particular) to punish justly and humanely. We have searched in vain to discover the basis for this faith. And third, in the past, the failure of treatment programs has invariably evoked a plea among liberal reformers that inmates receive more and not less rehabilitation. When the new agenda for punishment fails to reduce crime at some point in the future, what will the call be for then? Less punishment - or more? Center on Juvenile and Criminal Justice • 1622 Folsom Street • San Francisco, California 94103 --j. Page 4 The reality of Cullen and Gilbert's warnings was quickly manifested. The justice model facilitated unprecedented increases in institutional populations and an accompanying deterioration in confinement conditions. The Impact of the Justice Model on Juvenile Correctional Systems The states of Washington and California adopted the justice model through different approaches. However, both approaches had a profound effect on institutional populations . . Washington, in 1977, implemented a comprehensive justice model when the state legislature established mandatory sentencing standards requiring all adjudicated juvenile ... offenders between the ages of 8 and 17 to serve specified time periods in a correctional institution for specific offenses (Siegel and Senna, 1985). Within five years, the number of institutionalized youths in the State of Washington swelled, while confmement conditions deteriorated(Castellano 1986; Corsaletti 1991). Although the average length of stay in secure custody initia1ly declined, a higher percentage of . youth were committed to state correctional institutions. Since 1984, the average length of stay has increased every year (see Figure 5). Currently, the three main facilities are operating at 112% of capacity (The Children's Alliance 1991). The Washington juvenile correctional system is now the subject of a possible lawsuit over institutional conditions. After touring the state's juvenile training schools, attorneys from the National Center for Youth Law and the Youth Law Center noted that they were all in a state of decay. Programming was compromised for security concerns, while violence and abuse was pervasive. Staff maintain order through the use of police riot equipment, which includes a pepper-based eye spray that incapacitates disruptive youths. Washington's Department of Juvenile Rehabilitation consulting physician, Dr. James Owens, concluded that the product could cause permanent eye damage (David Lambert, National Center for Youth Law, personal interview, August 1991; Oaudia Wright, Youth Law Center, personal interview, May, 1991). One rationale underlying the Washington State reforms was the belief that recidivism would be lowered by increasing the certainty of punishment In her study on the effects of Washington's mandatory sentencing guidelines on juvenile recidivism, Schneider (1984) found that the new law had little impact on post release behavior and that in urban counties delinquent activity actually increased- This led Castellano (1986, p502) to conclude from his review of the Washington system that: " ... there is no evidence to suggest that the adoption of a 'just deserts' approach to juvenile offending has reducedjuveuile delinquency.", Center on Juvenile and Criminal Justice' 1622 Folsom Street· San Francisco, California 94103 PageS In California, unifonn confmement guidelines were adopted by the Youthful Offender Parole Board (YOPB) in 1978 following the implementation of the adult detenninate sentencing acl The YOPB, composed of gubernatorial appointees, establishes confinement lengths for all youths committed to the California Youth Authority (CYA) by the juvenile courts. Similar to the adult sentencing laws, the YOPB guidelines have been revised upwards on three occasions over the past 13 years. According to a recent report by the YOBP: The accompanying time intervals were established to be consistent with the time-setting intent described by the Legislature when mandatory sentences for adults committed to State prison were adopted. A still existing correlation was thus established between parole consideration dates and what was then the newly established determinate sentencing law. It was at that time that seven offense categories were identified and an appropriate time interval for each category was assigned (Youthful Offender Parole Board, Department of the Youth Authority, 1988). The YOPB utilizes seven categories to designate lengths of institutional stay based on the seriousness of the crime and the youth's prior record. Although California ostensibly maintains rehabilitation as a guiding principle, the State Legislature amended the juvenile court statutes in 1982 to include punishment as a disposition goal. . . .Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment and guidance which is consistent with their best interest, which holds them accountable for their behavior, and which is appropriate for their circumstances ... Such guidance may include punishment that is consistent with the rehabilitative objectives of this chapter .... (e) As used in this chapter, "punishment" means the imposition of sanctions which include the following: (1) Payment of a fine by the minor. (2) Rendering of compulsory service without compensation perfonned for the benefit of the community by the minor. (3) Limitations on the minor's liberty imposed as a condition of probation or parole. (4) Commitment of the minor to a local detention or treatment facility, such as a juvenile hall, camp, or ranch. Center on Juvenile and Criminal Justice' 1622 Folsom Street • San Francisco, California 94103 (5) Commitment of the minor to the Department of the Youth Authority (California Welfare and Institutions Code, Section 202) ... Page 6 This amendment legitimized the punitive nature of the California system and provided further impetus towards longer and more severe periods of incarceration. Within 12 years of the adoption of parole guidelines, the CY A population went from approllinately 47fJ7 to 7032 (California Youth Authority, Information Services, personal correspondence, September 24, 1991). The absence of a rehabilitative emphasis is evidenced by the large prison design and congregate dormitories. Like the reform schools of the past century, daily conditions in the CYA's 16 juvenile institutions are characterized by extreme . degrees of violence, intimidation, and idleness. Llttle meaningful intervention occurs as youths vie for dominance within a traditional prison subculture (Lerner 1986). The increase in incarceration was followed by a corresponding rise in recidivism rates. A study by the National Council on Crime and Delinquency, (NCCD) found an alarming 84 % rearrest rate for CY A parolees within three years of release (Baird 1987). In addition, a study by the CY A's own research division cited a rise in recidivism among parolees as periods of institutionalized confinement increased (Youthful Offender Parole Board, Department of the Youth Authority 1988) (See Figures 1 and 2). The expansion of the CY A population was unrelated to any increase in the crime rate or its severity. In 1988, the CYA was incarcerating a higher degree of less serious delinquent youth than they were in 1977 (see Figures 3 and 4). The justice model's vuInerability to political manipulation and meddling was evident from the start Since just punishment is a subjective judgement, calls for harsher sentences are easily accommodated within a punitive . oriented system (Cullen, Gilbert, 1981). Despite its past limitations, rehabilitation challenged . the propriety of conditions within institutions and offered a basis for the development of non- institutional alternatives. When this expectation was removed, the incentive among correctional . bureaucracies to improve conditions or maintain treatment was eliminated. Rehabilitation' and Organizational Commitment . While California and Washington were abandoning rehabilitation,Massachusetts and Utah were reaffirming it Recognizing the failure of the institutional model, Massachusetts in 1971, under the leadership of Commissioner Jerome G. Miller, closed its five juvenile correctional training schools (Ohlin, Coates, and Miller, 1978; Rutherford 1974; Bakal, Polsky, 1979). Center on Juvenile and Criminal Justice • 1622 folsom Street • San Francisco, California 94103 Page 7 Rather than abandon rehabilitation, Miller, on his own initiative, sought to redress the contradictions of the institutional system. He determined that the only way to eliminate institutional violence and abuses was to abolish the training school system. Between 1971 and 1973 all five of the Massachusetts training schools were closed. They were replaced by a network of small community based programs operating in neighborhoods throughout the state. These reforms were the most dramatic in the history of corrections in America. Never had an established correctional bureaucracy been so completely altered and recast. Nliller envisioned that the closing of the institutions would allow the juvenile justice system to finally pursue its original goal of humane individualized treatment (Ohlin, Coates, and Nliller 1978; Rutherford 1978; Polsky and Bakal, 1978). While the initial disruptions and uncertainties resulted in a political backlash and the eventual departure of Commissioner Miller, the closing of the institutions was irreversible. As Nliller's successors consolidated the reforms, a consensus developed reinforcing the propriety of the changes (Ohlin, Miller, & Coates, Rutherford, 1976; Polsky & Bakal, 1978). Following the Massachusetts example, Utah in 1980 closed its one 450-bed training school and shifted youths to community-based programs. As in Massachusetts, money that formerly was spent maintaining institutions went toward contracting with private agencies in local communities and neighborhoods. Services were designed to meet the demands of youths . with diverse needs and circumstances. For the few youths who required secure confinement, Utah maintains two 35-bed intensive treatment programs (Van Fleet, Rutherford, Schwartz, 1987). With a flexible range of programs, the state was able to invest heavily in providing high quality treatment services for its chronic and violent offenders in secure confinement. What distinguishes these programs from the past large congregate institutions is the absence of a prison subculture. Treatment is comprehensive and individualized. For those youths requiring non-secure custody, intensive outreach and tracking programs are provided in their home and neighborhoods. This treatment is offered at a fraction of the cost of secure residential treatment or confinement (Krisberg, Austin, Joe, Steele, 1988). A study by the National Council on Crime and Delinquency (NeCD) found a 66% decline in the frequency of subsequent arrests for youths released from Utah· s juvenile correctional programs during a twelve month follow-up. This "suppression effect" led NeeD researchers to conclude: .... therecidivism data for Youth Corrections offenders strongly indicate that the imposition of appropriate community-based controls on high! y active serious and chronic juvenile offenders is consistent with public protection goals. The Center on Juvenile and Criminal Justice' 1622 Folsom Street· San Francisco, California 94103 Page 8 well-structured ccmmunity-based programs of Utah' s Division of Youth Corrections may well constitute an important new range of dispositional options for handling serious and chronic juvenile offenders (Krisberg, Austin, Joe, Steele, 1988). Comparing Rehabilitation Models with Justice Models Of the 1,600 youths committed to the Massachusetts Department of Youth Services in 1990, only 15% are confined in locked secure-treatment programs. The majority of the committed population is spread throughout a variety of residential and nonresidential programs. Approximately 65% of these youths are maintained in their homes with supportive services (Loughran 1987). The programs utilized in Massachusetts and Utah include day treatment, temporary shelter care, intensive outreach and tracking, specialized foster care, wilderness adventure, group care, and secure residential (Lerner 1990). By contrast, 100% of first commitments to the California Youth Authority and 90% of the ccmmitted population to the Washington Division of Juvenile Rehabilitl.tion (DJR) are confined in secure correctional institutions. In addition, the average length of cont"inement in a California Youth Authority training school is now 24.7 months, while in Massachusetts the . average period of time in a secure program is 7.3 months. The vulnerabilitY of justice models to consistent increases in periods of incarceration is reflected in Figure S. Between 1982 and 1990, the average length of institutional confinement in Washington and California steadily .. increased, while it remained relatively stable in Utah. In addition, while yearly figures were . not available for Massachusetts, Department of Youth Service (DYS) officials assert that the average length of stay has remained constant (Executive Assistance to the Commissioner, Massachusetts Department of Youth Services, personal interview, September 1991). By correctional standards, conditions of confinement in secure facilities in Utah and Massachusetts are considered models of humane treatment, while youth correctional institutions in California and Washington are riddled by violence and decay (Lerner 1990, 1986; Corsaletti, 1991). In addition, a recent study concluded: . California now incarcerates a higher percentage of its youths for longer periods of time in larger and more secure facilities than any other major state in the . nation. Rates of incarceration at local and state levels are twice the national average (DeMuro, DeMuro & Lerner, 1988, p.IS). The differences in the four states is even more startling when census figures from the Office of Juvenile Justice and Delinquency Prevention (OJJDP) on youth in public custody Center on Juvenile and Criminal Justice·' 1622 Folsom Street • San Francisco, California 94103 Page 9 facilities is examined (see Figure 6). According to OJIDP researchers Thornberry, Tolnay, Flanagan, and Glynn (1991, p.16), public facilities, "whether short-term or long-term, were much more likely to be institutional." Additionally, there are extreme differences between states . in the number and type of committed youth placed in institutional confinement (See Figure 7). Reconsidering Rehabilitation The decline of rehabilitation was partly attributed to the perceived failure of researchers to demonstrate clearly that rehabilitation fostered lower rates of recidivism. According to Cullen and Gendreau (1989, p.38) "a reality has been constructed and legitimized by many criminologists that rehabilitation is a failed policy that the public will no longer tolerate." As a result of this pervasive perception, tougher sentencing and waivers to adult court became the dominant juvenile justice reform in the majority of states (Greenwood 1986). However, during the 1980s, new evidence emerged suggesting that the demise of rehabilitation was premature. A growing number of studies indicate that rehabilitative intervention is effective in de-escalating criminal behavior (Gendreau and Ross, 1987; Krisberg, Austin, Joe, Steele, 1987). Various well-designed interventions reduce the'severity and frequency of delinquency and alters the cycle that leads to adult crime. Studies have noted that approximately 40% of adult prison populations are graduates of institution-based juvenile justice systems (Rivers, Trotti, 1989). Thls finding is consistent with reviews of the adult prison population in Massachusetts prior to 1971. According to evaluations, since the reforms of20 years ago, the number of youths graduating to the adult criminal justice system in Massachusetts has fallen to 15% (Loughran 1987). A 1987 evaluation of the Massachusetts juvenile justice system by NCCD revealed a recidivism rate of 42 % as measured by the number of youths reconvicted of an offense after one year. When compared to four other states, Massachusetts had the lowest rates. In contrast, California, the most extreme example of a punitive institutional model, also recorded a .. reconviction rate of 53% (see Figure 8). Finally, only 23% of Massachusetts youth were reincarcerated after 36 months compared to California's rate of 62% (Krisberg, Austin & Steele, 1989) (See Figure 9). Well-developed and properly implemented rehabilitative programs are demonstrating tangible evidence of altering delinquent behavior and arrest patterns. For example, the Violent Juvenile Offender (VIO) Program was an experimental project designed to test the effectiveness of intensive programming for chronic and violent juvenile offenders. Services . were provided along a continuum starting with secure care and then progressing to community C~nter on Juvenile and Criminal Justice' 1622 Folsom Street· San Francisco, California 94103 Page 10 reintegration through intensive case management. The project was tested in four cities around the country. When recidivism results strongly favored the experimental group, researcher . Jeffrey Fagan (1990, p,258) concluded: The VJO Program tested a central proposition: carefully implemented and well- managed programs, rooted in sound theory and advanced practices, can effectively control violent juvenile crime and return offenders to their communities without risking community safety. The well-implemented programs resulted in significant reductions in the number and severity of arrests for experimental youths, as well as in significantly greater time until rearrest. The delays in return to crime for experimental youths during the critical first year following release suggest that the reintegration strategy also may be effective crime control. The positive effect of other well-designed and implemented intervention models continues to be recognized. An evaluation of the Vision Quest experiential education program, by the Rand Corporation, showed substantia.1ly lower rates of recidivism among Vision Quest graduates, compared to a matched sample of youthful offenders from a county training school in California. The lower recidivism occurred despite the fact that Vision Quest youths had considerably longer and more serious histories of delinquency. After a one year follow-up, Vision Quest youths had a recidivism rate of 55%, compared to the training school youths of 71 %. In addition, a smaller matched sample of CY A youths recorded a recidivism rate of 88%. Recidivism was measured by new arrests (Greenwood 1987). Another study conducted by the Oregon Social Learning Center tested the effectiveness of specialized foster care (SFC) for chronic delinquent youths who were diverted from state correctional institutions. Youths in the ex:perimental group were placed in specialized foster homes and provided with highly individualized treatment. Youths in the comparison group . were placed in traditional residential programs or facilities. One year after completing the program, experimental youths had dramatically lower reoffense rates, as measured by . subsequent reincarceration. According to Patterson (1987, pp. 10, 13): During the first year of follow-up post-treatment, 6 of 16 adolescents in the experimental group (38%) and 14 ofl6 in the control group (88%) were reinstitutionalized. .• . The results presented in this report provide preliminary support for the efficacy of applications of the SFC model. A study by Palmer and Wedge (1987) on county camps and ranches in California found that smaller individualized programs had rates of recidivism 18 % lower than those with more Center on Juvenile and Criminal Justice • 1622 Folsom Street • San Francisco, California 94103 " Page 11 traditional congregate institutional designs and practices. These differences were maintained even among youths with longer and more severe delinquent histories. The value of intensive case management was demonstrated in 1988 when the State of Maryland closed one of its two training schools by contracting with the National Center on Institutions and Alternatives (NClA). Under the plan, the State provided funding for the purchase of services on a case-by-case basis. Individualized service plans were implemented for 117 of the institution's most intractable youths. Case managers worked closely with youths to develop trust and understanding, while services were purchased from private-sector vendors according to each youths' circumstances and needs. A follow-up evaluation found that after one year only 35 youth were rearrested. Of those arrested, one was for a violent offense and only six were reincarcerated (Lerner 1990). Similar results were recorded by NClA's Hawaii Youth Advocacy Project NClA was contracted by the Hawaii Department of Corrections to initiate the process of deinstitutionalization through the closing of the Hawaii Youth Correctional Facility. Through intensive case management, 26 youths out of a total population of 75 were returned to the community within a six-month period. A follow-up evaluation found that only four were rearrested. This led criminologist Andrew Rutherford (1990, p. 19) to conclude: . As only 4 of the 26 releasees have been rearrested for further offences (for which charges were still pending and none of which involved violence), it is reasonable to conclude that the project was conducted without undue threat to public safety. Indeed, the results strongly suggest that the project has provided enhanced public protection through the new services provided during the three month follow-up period. The NCIA programs demonstrated the effectiveness of an intensive personalized approach to , providing services to the juvenile justice system's most troubled youth. The vital element in achieving success was the programs' vigorous advocacy and the ability of staff to form bonds with youths (Macallair, 1990). The positive results of the NClA programs was supported by Lipsey's (1990) recent meta analysis of juvenile correctional treatment programs. His analysis of 443 studies showed modest but positive results when they were reviewed in their totality. However, when various types of approaches were examined, dramatic results were observed. For example, Lipsey found that programs employing case work approaches could reduce recidivism by 10 to 20 percentage points. In contrast, programs administered by juvenile justice bureacracies yielded the least favorable results. Programs that used deterrence strategies such as shock incarceration . and "scared straight" approachs tended to escalate delinquent behavior (37-39). Center on Juvenile and Criminal Justice' 1622 Folsom Street· San Francisco, California 94103 Page 12 In their comprehensive review of the research on rehabilitation, Gendreau and Ross (1987) concluded that contrary to popular assumptions, the evidence overwhelming indicates that rehabilitation programs work. While not eliminating recidivism, rehabilitation is more effective than correctional institutions in reducing the rate and seriousness of criminal behavior. Conclusion An examination of juvenile justice in much of the United States reveals a system dominated by archaic 19th century correctional models and theories. Despite the doctrine of rehabilitation, the institution-based system is an unequivocal failure. As former Office of Juvenile Justice and Delinquency Prevention director, Ira Schwartz (1989, p. 169) notes: All large training schools should be closed. These institutions are expensive to operate and difficult to manage, and they simply don't work. They have no place in an enlightened and cost effective youth correctional system. Due to their past inabilities to alter institutional conditions, reformers have been rendered frustrated and disheartened. This situation led many to resign themselves to the institutional system and embrace the justice model in hopes of at least limiting periods of confinement. However, by abandoning rehabilitation, progressive advocates effectively disarmed themselves in the battle over juvenile justice policy. Legislative and bureaucratic debates came to center on degrees of punishment rather than its legitimacy. Under these conditions, conservatives were able to pursue their agenda of harsher punishments with little opposition. The acceptance of the justice model by the progressive community proved disastrous. Instead of reining in the power of the institutional system, it served to augment it. To regain the political momentum, reformers must reembrace rehabilitation. Rehabilitation enjoys broad public support as demonstrated in a recent California poIL In contrast to its current public policies, 82 % of California residents voiced their belief that the purpose' of the juvenile justice system should be the pursuit of rehabilitation (Wallace 1988). A commitment to rehabilitation will reignite efforts to dismantle the institution-based system. Those states and jurisdictions that have implemented effective rehabilitation programs . provide, models on which to build a new reinvigorated progressive agenda. However, a new commitment to rehabilitation will require a resurgence of activism among the progressive . community. A return to rehabilitation is presently the only viable strategy for achieving reductions in custodial confinement and promoting the humane and effective treatment of troubled youths. Center on Juvenile and Criminal Justice' 1622 Folsom Streer • San Francisco, California 94103 '. " 0.7 0.6 0.5 0.4 OJ 0.2 0.1 O. FlGlJRE 1 PERCE.'iTAGE OF PEOPLE LSSCCCESSFCLLY TER.\lI.'iATED fRml PAROLE 1979 1982 ., ' 1979·48.5% 1982·55.7% 1985·61.8% 1985 Source: California Youth Authoritv FlGlJRE 2 A \ "[RAGE LE.\GTH OF STA Y AT 20 1 RELEASE FOR FIRST 181 COmllThlEm 16 ~ (P.i MO~lHS) 14 12 10 8 6 4 2 o 1979 1982 1979· 12,6 1982· 15,0 1985 ·19.1 19&5 Source: California Youth Authority FlGFRE3 Type of Crime - Offenses committed by those entering CY A institutions for the first time (1977) 0.6 0.4 0.2 Ol---'"->- Drugs Property Violent Others FlGFRE .j Sourc.e: California Type of Crime· Offenses romrnittl'd by Youth Authority; those entering CYA institutions for the California Legislative first time (1988) Analyst 0.45 0.4 0.35 OJ 0.25 0.2 0.15 0.1 I 0.05 o Drugs Property Violent Drugs - 2.5% Property - 45.3' Violent - 45.1 ~ Others - 7.1 % • Drugs Il!I Property E! Violent Il Others Others Drugs· 14% Property - 43.6 % Violent - 36.l % Others - 6.3 % I Drugs ill Property C Violent l1W Others " fIGURE 5 iherage Length of Stay in Sffure Custody 30 1- (in months) 25 /::l::-::l::_X 20 I .___X-::t:.--- X i,----::l:: ::l:: ] 5 1 X- California .~- Utah 10 f .~ 6--~--~- ~==~~ • • ~.--.--+--. ~ 5~ o I '. • Washington 19831984198519861987198819891990 Figure 6 Youth in Public Custody Facilities Per 100,000 National Average "California Massachusetts Utah "Washington 1987 1989 208 221 496 535 42 48 88 85 229 236 Source: OffiCe of Juvenile Ju>tice and D<:linqueDcy mvention • California bas the highest rate among all states. wrule Washington rank,; eighth. M.-I.SSACHUS errs UTAH WASHr-lGTON Source,; FlGURE 7 SECURE CU>TODY COMP."-RlSONS ·1990 A .... en.gc Daily PopulAtion in $.cCLI!"e Confinement 112 70 587 Perce nttge of FL."'1t Time Commilmcnts in Secure Cl.!slc>dy 100% IS% 16% 909<. California. YClUth Aulhority, lr.rOiIT.~iOIl Services A.'crate t.c.gth of Average Num~of SL!)' in So:urc Cor.ft!"lerncnt Prior Sustrined Pr::utioos (in monL'u) for Yo~ui l.n Secure Cus!od;Z 24.7 2.9 8.0 N/A 7.5 9.0 6.3 N/A MUs.1chusel:ts De;>a.:'f.mcnt of Youth SCO\'i~s, E"e>:'utivc ,A.ssis:.!J\t to the Commissioner UL1.h OJ''ision of Youth COcrec:.iODS, Res~'"Ch AnAlyst St.a.lc: of Uu.h. AdministrAtive Office ofthc CoutU V.'a~hln&1on Division of Rehabilitative Services, lnfonnaLion Sys~ems Coordinator FlGURE8 0.6 i PERCEXTAGE OF PAROLEES 0.5 RECO:-'''\"lCTED 0,4 OJ 0.2 0.1 o Massachusetts California Massachusetts - 42 % California - 55% • Massachusetts l!!D California Source: Natiooal Council on rnm~ anti ~llnl1l1pn{'v 0.7 CJH . 61cr I omla· ./e Massachusetts· 22 % 0.6 0.5 0.4 OJ 0.2 0.1 0 Massachusetts F1GURE9 PERCE\TAGE OF PAROLEES REl\CARCERUED mTHl\ 36 ~lO\THS California OF RELEASE • Massachusetts !!!lI Cali f 0 rnia Source: National Council 0 Crime and Delinquency REFEREC'iCES Austin, I., B. Krisberg (1981) Wider Stronger, and Different Nets: The Dialectics of Criminal Iustice Reform. Crime and Delinquency: pp. 165-193. Bakal, Y., H.W. Polsky (1979) Reforming Corrections for Iuvenile Offenders. Lexington, MA: Lexington Books. California Youth Authority, Youthful Offender Parole Board. 1988. Youth Authority Institutionall.ength of Stay and Recidivism, California Iuvenile Arrest Rates, and Guidelines for Parole Consideration Dates. Sacramento, CA. State of California. Castellano, T. C. (1986) The Iustice Model in the Iuvenile Iustice System: Washington State's Experience. Law and Policy. Vol. 8 No.4. 479-506. Chamberlain, P. (1988) Treatment of Chronic Delinquents in Specialized Foster Care: A Matched Comparison Study. Eugene, OR: Oregon Social Learning Center. The Children's Alliance (1991) The State of the Child: A Selected Statistical Overview. Seattle, W A: The Children's Alliance. Corsaletti, L T. (1991, Iuly 16) Overcrowding at Echo Glen: New Urgency to Old Lawsuit. Seattle Times, pp. 1-2. Corsaletti, L T. (1991, August 2) Youth Center's Staff Swamped: State Panel Told of Attacks, Stress. Seattle Times, P.IO. Coates, R. B., A.D. Miller, LE. Ohlin (1978) Diversity in a Youth Correctional System. Cambridge, MA: Ballinger. Cullen, F. T., P. Gendreau (1989) 'The Effectiveness of Correctional Rehabilitation: Reconsidering the "Nothing Works' Debate.' pp. 23-44. In Lynne Goodstein and Doris Layton Mackenzie (eds), The American Prison: Issues in Research and Policy. New York, NY: Plenum Press. Cullen, F. T., K.E.Gilbert (1982) Reaffirming Rehabilitation. Cincinnati, Ohio: Anderson Publishing Co. DeMuro, P., A. DeMuro, S. Lerner (1988) Reforming the CYA: How to End CrOWding and Diversify Treatment and Protect the Public Without Spending More Money. Bolinas, CA.: Commonweal Research institute. Empey, L (1982) American Delinquency: Its Meaning and Construction. Homewood, Illinois, The Dorsey Press. Fagan, 1. A. (1990) Treatment and Reintegration of Violent Iuvenile Offenders: Experimental Results. Iustice Quarterly Vol. 7: 233-263. Fogel, D. (1975) "We are the Living Proof...? The Iustice Model for Corrections. Cincinnati, OR .. ""'derson. Gendreau, P., R.R. Ross (1987) Revivification of Rehabilitation: Evidence from the 1980's. Iustice Quarterly Vol. 4 No.3. 249-407 Greenwood, P. (1987) An Evaluation of the Vision Quest Program. Santa Monica, CA.: Rand Greenwood, P. (1986) Iuvenile Offenders. Washington, DC: United States Department ofJustice, National " Institute of Corrections. Greenwood, P. W .. F.E. Zimring (1985) One More Chance: The Pursuit of Promising Strategies for Chronic Juvenile Offenders. Santa Monica, CA: Rand Klein, M., S.Kobrin (1980) National Evaluation of the Deinstitutionalization of Status Offender Programs: Executive Summary. Los Angeles, CA: Social Science Research Institute. Krisberg, B., J.Austin, P. A. Steele (1989). Unlocking Juvenile Corrections: Evaluating the Massachusetts Department of Youth Services. National Council on Crime and Delinquency. San Francisco, CA. Krisberg, B., J. Austin, K. Joe, P. Steele (1988) The Impact of Juvenile Court Sanctions. San Francisco, CA: National Council on Crime and Delinquency. Krisberg, B., I.M. Schwartz, P. Utsky, J. Austin, (January, 1986) The Watershed of Juvenile Justice Reform. Crime and Delinquency, Vo1.32: 5-37 Krisberg, B., J. Austin (1978). The Children of Ishmael. Palo Alto, CA: Mayfield Publishing Company. Lerman, P. (1975) Community Treatment and Social Control: A Critical Analysis of Juvenile Correctional Policy. Chicago, II. University of Chicago Press. Lerner, S. (1990) The Good News About Juvenile Justic~: The Movement Away from Large Institutions and Toward Community-Based Services. Bolinas, CA: Commonweal Research Press. Lerner, S. (1986) Bodily Harm: The Pattern of Fear and Violence at the California Youth Authority. Bolinas, CA: Commonweal Research Institute. Uef, J. G. (1988) A History of the Internal Organization of the State Reform School for Boys at Westborough, Massachusetta (1846-1974). Unpublished doctoral dissertation, Harvard University, Cambridge, MA. Upsey, M. W. (1990). Juvenile Delinquency Treatment: A Meta-analytic Inquiry into the Variability of Effect. Claremont, CA: Claremont Graduate School. Upton, D., R. Martinson, J. Wilks, (1975) The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies. New York, NY: Praeger. Loughran, E. (1987) "Juvenile Corrections: The Massachusetts Experience." Pp 7-18 in In Reinvesting Youth Corrections Resources: A Tale of Three States, edited by Lee Edison. Ann Arbor: Center for the Study of Youth Policy, University of Michigan. Macallair, D. (1990) ACLU's Demands Trigger Change in Hawaii's Juvenile Justice System. National Prison Project Journal Spring: 5-6. Palmer, T., R. Wedge (1989) California's Juvenile Probation Camps: Findings and Implications. Crime an.d Delinquency, Vol. 35: 234-235. Palmer, T., M. Bohnstedt, R. Lewis (1978) The Evaluation of Juvenile Diversion Projects: Final Report. Sacramento, CA: The California Youth Authority. President's Commission on Law Enforcement and Administration of Justice. (1967a) The Challenge of Crime in a Free Society. Washington, DC: U.S. Government Printing Office. ---(1967b) Task Force Report: Juvenile Delinquency and Youth Crime. Washington, DC: U.S. Government Printing Office. Rivers, J., T. Trotti (1989) South Carolina Delinquent Males: A Follow-up Into Adult Corrections. Columbia, SC. South Carolina Department of Youth Services. , 
work_366nm2h3zvg5toqetojpv54hyq	----	PDF hosted at the Radboud Repository of the Radboud University Nijmegen The following full text is a publisher's version. For additional information about this publication click this link. http://hdl.handle.net/2066/111686 Please be advised that this information was generated on 2021-04-06 and may be subject to change. http://hdl.handle.net/2066/111686 Justice in transport as justice in accessibility: applying Walzer’s ‘Spheres of Justice’ to the transport sector Karel Martens � The Author(s) 2012. This article is published with open access at Springerlink.com Abstract This paper seeks to provide a theoretical basis for a distributive approach to transport. Using the theory developed by Michael Walzer in his ‘Spheres of Justice’ (1983), I argue that the transport good, defined as accessibility, should be distributed in a so-called separate sphere, i.e. independent from the way in which other key goods, like money or power, are allocated. I subsequently explore what kind of justice principle could guide the distribution of the transport good, once a separate sphere would be established. This preliminary exploration results in the elimination of a number of widely supported distributive principles, and in the tentative identification of a criterion matching the par- ticularities of the transport good. The explorations in the paper are not intended as final answers, but rather seek to open the debate about the need for an explicit distributive transport policy and the distributive principle that should guide such a policy. Keywords Transport � Justice � Equity � Spheres of Justice � Distribution Introduction Transport has become a key field of government intervention in modern societies. Governments do not only set the regulatory framework, but also determine the size and scope of investments in transport facilities. Given the importance of transport in current highly mobile societies, the way in which governments distribute transport over their citizens becomes of the utmost importance. And yet, while an extensive body of literature exists on transport and (environmental) justice (see Schweitzer and Valenzuela 2004), little has been said about the desirability or (im)possibility of a distributive approach to transport. The goal of this paper is to explore transport as a field of government intervention through a distributive lens. While a wide variety of approaches to social justice can be distinguished (see Fabre 2007 for an overview), the explorations presented here start from K. Martens (&) Institute for Management Research, Radboud University Nijmegen, Nijmegen, The Netherlands e-mail: k.martens@fm.ru.nl 123 Transportation DOI 10.1007/s11116-012-9388-7 Walzer’s ‘Spheres of Justice’ (Walzer 1983). 1 There are two main motivations for this choice. First, to the best of our knowledge, Walzer’s approach has not yet been applied to transport. Second, and more importantly, many of the major theories of justice, among which Rawl0s theory of ‘justice as fairness’, relate to the basic structure of a society rather than to particular institutions within a society (Fabre 2007, pp. 19–20). While such theories can be applied to the field of transport (see Beatley 1988 for an application of Rawls’ difference principle to transport), such applications will not provide an answer to the question why a distributive approach is called for in the case of transport. In contrast, as will be argued below, Walzer’s theory can provide such a theoretical foundation for a distributive approach to transport. The paper starts with a brief account of Walzer’s theory of justice (‘‘Walzer’s Spheres of Justice’’ section). This results in the identification of three questions: (1) What is the social meaning of the transport good (‘‘The social meaning of the transport good’’ section); (2) Does the social meaning of the transport good justify the creation of a so-called separate sphere around the good? (‘‘Transportation as a field of policy intervention’’ and ‘‘Transport as a separate sphere’’ sections); and (3) Which distributive principle should guide the allocation of the transport good? (‘‘Towards a distributive principle for trans- port’’ section). Taken together, the answers to these questions provide a tentative theo- retical basis for a distributive approach to transport. The character of the paper is explorative. It cannot address all the issues related to a distributive approach to transport, such as the importance of the land use–transport interaction or the personal responsibility of people in choosing e.g. their place of residence or means of transport, all of which directly affect justice in transport. As a result, the paper does not aim to provide final answers, but rather aims to trigger a debate about the need for a distributive approach to transport. The paper draws, amongst others, on the rather dispersed body of literature that con- nects transport and distributive justice. This literature includes papers that explicitly apply philosophies of social justice to transport (e.g., Lucy 1988; Khisty 1996), empirical studies into the distribution of a wide variety of transport-related benefits and burdens (see ‘‘The social meaning of the transport good’’ section for a number of references), studies into urban service delivery (e.g., Miranda and Tunyavong 1994; Talen and Anselin 1998; Neutens et al. 2010a), as well as the vast literature on spatial mismatch (see ‘‘Transport as a separate sphere’’ section), the growing number of publications on transport and social exclusion (see ‘‘Transport as a separate sphere’’ section), and more recent explorations into the ethics of mobility (e.g., Bergman and Sager 2008) and the ethics and distributive impacts of transportation planning (e.g., Martens 2006; Martens and Hurvitz 2011; Martens (2011); Van Wee 2011). It is well beyond the scope of the paper to provide a review of this diverse body of literature. For insightful reviews into a large part of the literature, see Schweitzer and Valenzuela (2004) and Schweitzer and Stephenson (2007). Walzer’s Spheres of Justice The theoretical starting point for the proposed justice approach to transport is Walzer’s ‘Spheres of Justice’ (Walzer 1983, 1995). In line with most other contemporary scholars 1 Throughout the paper the term justice is employed, rather than the terms equity or fairness. While each of these terms may refer to different concepts in certain contexts, in common usage the terms strongly overlap and are used interchangeably. See also Hay (1995). Transportation 123 (but see Young 1990), Walzer takes a distributive approach to social justice by asking the question how benefits and burdens are and should be distributed over members of society. However, unlike other scholars of social justice like e.g. Rawls (1971), he does not focus on the distribution of an abstract set of basic goods. Rather, he views society as a dis- tributive community in which people produce a wide variety of goods that are subsequently shared, divided and exchanged in specific ways. These goods, according to Walzer, can neither be reduced to a set of abstract goods, nor be idiosyncratically valued. Goods are, by definition, social goods; their meaning is socially constructed. ‘‘Goods (…) have shared meanings because conception and creation are social processes’’ (Walzer 1983, p. 7). Subsequently, goods can have different meanings in different societies; the same ‘thing’ may be valued in one place, while it is hardly valued or even disvalued in another. Likewise, goods with a comparable ‘market value’ may differ fundamentally from a dis- tributive perspective, because they differ in terms of the social meaning members of particular society attach to them. Precisely because of these differences in the social meaning of goods, Walzer argues, there can be no single criterion in virtue of which all goods are to be made available to members of society. Commonly defended criteria like free exchange, need or desert cannot determine the distribution of all goods available in society. Furthermore, distributive criteria and arrangements are intrinsic not to the good-in- itself but to the social good: ‘‘If we understand what it is, what it means to those for whom it is a good, we understand how, by whom, and for what reasons it ought to be distributed’’ (ibid., p. 9). The social meaning of a good is therefore of crucial importance in Walzer’s approach. It is the basis for determining what constitutes a fair distribution: ‘‘All distri- butions are just or unjust relative to the social meanings of the goods at stake’’ (ibid., p. 9). Based on this ‘theory of goods’—only briefly summarized here—Walzer then develops the concept of ‘distributive spheres’. Distributive spheres are the prerogative of goods that have a distinct social meaning in a particular society, which sets them apart from regular goods. While regular goods, like necklaces or mobile phones, may also have a social meaning, they can be distributed through the market and their distribution can be deter- mined through the principle of free exchange. Goods to which a particular society ascribes a distinct social meaning, in contrast, are to be taken out of the sphere of free exchange. Typical examples in modern Western societies are health and education. These and comparable goods, Walzer argues, ‘deserve’ their own distributive sphere. For Walzer, a distributive sphere is characterized by two basic features. First, it requires that the distribution of a particular good be guided by another distributive principle than free exchange. As discussed, these principles can differ—ranging from equality to need— but are to match the social meaning of the good in a particular society (Trappenburg 2000). Second, a distributive sphere should guarantee that the distribution of the particular good is autonomous from the way in which other goods are distributed. According to Walzer, injustice occurs if spheres are not autonomous. In that case, the distribution of one good or one set of goods can become dominant and determine the distributions in all, or many, spheres of distribution. Typically, according to Walzer, money and power are the goods to claim dominance, and much of the policy debates, like those in the fields of basic education or health services, are about limiting their domination. Ultimately, autonomy guarantees what Walzer terms ‘complex equality’: a situation in which inequalities within spheres may exist, but in which the autonomy of distributive spheres will guarantee that inequalities will not necessarily sum up across different goods or spheres. Walzer’s approach is certainly not without problems (see e.g., Dworkin 1983b; Teuber 1984; Fabre 2007). Its strength lies in the theoretical foundation it provides for the political reality in modern societies. In modern societies, government intervention is not concerned Transportation 123 with the distribution of abstract primary goods, such as those distinguished by Rawls (1971), but with the distribution of a wide variety of real, tangible, goods. Prominent among these are income, education, health care, and housing. Principles of justice play a central role in the distribution of each of these goods, although these principles may differ between societies. The importance of Walzer’s theory of justice, and its core concept of spheres, lies in the fact that it can provide a theoretical foundation for a distributive approach to transport. From Walzer’s perspective, a distributive approach to a particular good is called for if that good has a distinct social meaning: ‘When meanings are distinct, distributions must be autonomous’ (Walzer 1983, p. 10—author’s emphasis). If this condition holds for the transport good, i.e. if the transport good has a socially distinct meaning, than a distributive approach to transport can be justified. Walzer’s theory of justice thus raises three key questions for the field of transport. The first concerns the social meaning of the transport good (‘‘The social meaning of the transport good’’ section). Only if a clear social meaning can be ascribed to the transport good, is it fruitful to enter a discussion about the relevance of a separate transport sphere. The second, and perhaps principal, question is whether the social meaning ascribed to the transport good is distinct enough to draw boundaries around the good and set it apart from other goods and create a separate ‘transport sphere’ (‘‘Transportation as a field of policy intervention’’ and ‘‘Transport as a separate sphere’’ sections). Then, if the answer to this second query is yes, the third question is how the transport good should be distributed, i.e. which distributive principle is appropriate to guide the allocation of the transport good (‘‘Towards a distributive principle for transport’’ section). Below, I turn to each of these three questions. The social meaning of the transport good The first question raised by Walzer’s approach concerns the social meaning of what has thus far been referred to as ‘the transport good’. Obviously, and in line with the critique of Dworkin (1983a), the demarcation of the social meaning of the transport good is not a simple one. Opinions may differ widely between and within societies, depending on people’s backgrounds, perspectives and personal lives. Hence, the discussion below is not a final answer, but a first attempt to demarcate a social meaning that might be widely shared in modern, industrialized, societies. First, when people relate to transport, it is about the possibilities it offers to travel to places, to access people and opportunities, or to experience the freedom to escape one’s locality (see e.g. the contributions in Bergman and Sager 2008). The social meaning of the transport good therefore seems to lie in the benefits related to transport, rather than in the burdens. Even in academic discourse, the burdens related to transport, such as greenhouse gas emissions, are defined as negative externalities, emphasizing that they are not a core part of the transport good. This suggests that the distribution of the transport good should first and foremost be guided by the benefits that are related to it, rather than based on the burdens it may generate. This is a fundamental point, as much of the debate on transport and equity has focused precisely on the distribution of transport-related burdens (e.g., Feitelson 2002; Forkenbrock and Schweitzer 1999; Schweitzer and Valenzuela 2004). Walzer’s approach does not suggest that the distribution of these burdens is not a matter of justice. In line with his theory, it can actually be argued that in current Western societies, a healthy environment is Transportation 123 a good with a distinct social meaning that deserves to be set apart from other goods. Walzer’s approach thus suggests that the distribution of the transport-related environmental burdens should be related to environmental burdens from other sources and that their distribution should be jointly considered. The principle guiding the distribution of the total set of environmental burdens should subsequently be derived from the social meaning ascribed to a healthy environment. Note that the desired distributions in the ‘environment sphere’ may well have implications for the possible distributions in the ‘transport sphere’. It is beyond the scope of the paper to further explore this issue. For now, it suffices to conclude that Walzer’s emphasis on the social meaning of a good as the basis for its distribution, suggests that the benefits of transport should be the starting point for the debate about the distribution of the transport good. Second, it may be clear that the transport good as such does not exist. The good— however conceptualized—is a combination of objects like cars and bicycles; artifacts like roads and railways; services like public transport lines, car repair services and guarded parking facilities; and less tangible goods like driving licenses, traffic regulations or route guidance systems. In this sense, the transport good is comparable to a good like basic education, explicitly discussed by Walzer in his book. Like transport, basic education is not a concrete good that is transferred from one person to another. Basic education as a social good is the outcome of the combination of a multitude of tangible and less tangible goods: class rooms, teachers, school books, teaching materials, learning methods, etcetera. These goods combine to the good which Walzer refers to as ‘mediated education’: the systematic transfer of knowledge and skills to pupils and students. It is this good, rather than the different parts constituting it, which, according to Walzer, should be set apart in a separate sphere and distributed in a way compatible with the social meaning of the good in a particular society (Walzer 1983, pp. 197–226). Following this line of reasoning, the distributive question in transport does not relate to the individual objects, artifacts, etc. that constitute the ‘transport good’, as the social meaning of each of these parts stems from the social meaning of the overarching ‘transport good’. Following Walzer, it is the social meaning of the overarching good that should provide the compass for the distribution of the good over members over society. The allocation of the composite parts should be derived from this; not the other way around. This is, again, a fundamental point, as much of the literature and policy debates on distributive justice in transport have focused on precisely the composite parts, such as road and gasoline taxes (Altshuler 1979); transit investments and subsidies (Cervero 1981; Hodge 1988; Garrett and Taylor 1999); infrastructure investments (Lucy 1988; Bröcker et al. 2010); road user charges (Smeed 1964; Richardson 1974; Ecola and Light 2009); and transit service (Murray and Davis 2001; Rucker 1984; Wu and Hine 2003). For Western societies, and increasingly so for non-Western societies, and in line with much of the transport literature, two distinct meanings of the overarching transport good can be distinguished: potential mobility and accessibility (e.g., Garb and Levine 2002; Vigar 1999). Potential mobility, often simply referred to as mobility, refers to the ease with which a person can move through space (e.g., Sager 2005). Since the term mobility is frequently used to describe the (growth in the) actual movement of people, I explicitly distinguish between mobility and potential mobility, or movement and potentiality of movement (Kaufmann 2002, pp. 13–14). An increase in mobility implies that a person travels over longer distances, more frequently, or both. In contrast, an increase in potential mobility only implies an increase in a person’s capacity to overcome distance in space—it does not imply the actual realization of this capacity (Sager 2005, pp. 3–4). Transportation 123 Accessibility has a meaning quite distinct from potential mobility. It refers to the ease with which destinations can be reached from a given location in space (see e.g., Farrington and Farrington 2005; Dong et al. 2006; Niemeier 1997). Two different forms of accessi- bility have been distinguished in the literature: person accessibility and place accessibility. While the terms are often used interchangeably, it is important to clarify the difference between them (see Pirie 1979; Kwan 1999; Miller 2007 for more elaborate discussions). Person accessibility is an attribute of a person: a person has accessibility (or not) to a certain set of locations. Place accessibility, in turn, is an attribute of an (activity) location: a location is accessible (or inaccessible) for a certain set of people or from a certain set of other locations. Person and location accessibility are thus each other’s mirror image (Fig. 1). The distributive perspective taken in this paper directs the attention to people rather than locations, as people and not locations are the recipients of socially valued goods. Hence, from a distributive perspective person and not place accessibility should be the focus of analysis. Both the concepts of potential mobility and of person accessibility—in the remainder of the paper simply referred to as accessibility—are directly related to a wider system of values dominating Western societies. The conceptualization of the transport good as potential mobility can be linked to notions such as freedom of movement and freedom of choice. (Potential) mobility is often even equated with freedom of movement (e.g., Cresswell 2006), although the latter refers to a right rather than to a capacity varying in strength. Freedom of choice and potential mobility are strongly intertwined—with a high level of potential mobility implying a high level of choice in terms of employment opportunities, health care services, leisure facilities, and so forth. Mobility is also closely linked to widely cherished values such as open-mindedness, discovery, experience and adventure (Kaufmann 2002, p. 37), and to notions like escape and autonomy (Zeitler 1999, pp. 21–22; Lomasky 1997). Perhaps most importantly, high (potential) mobility is linked to the ambition to break the tether of physical friction—a desire enshrined in Western society and exemplified in the expansion of the Roman empire, the discoveries, and the search for speed since the industrial revolution (Couclelis 1996; Harvey 1990; Sager 2005). The concept of accessibility also has deep roots in Western value systems. Accessibility indicates ability, i.e. the ability to accomplish a broad range of actions, by linking to places and people that are set apart in space and time (Talen 2001). As such, accessibility is also ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** (b)(a) ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** ** Fig. 1 Person accessibility (a) versus place accessibility (b). The borders of each diagram indicate the area that can be travelled within e.g. a certain time budget or time-money budget. Source Dijst (1995, p. 28). ** = person, j = activity location Transportation 123 linked to freedom of choice, with higher levels of accessibility indicating higher levels of choice and hence a higher potential for personal fulfillment and satisfaction. Yet, at the same time, accessibility also stresses that choice and freedom of movement are limited: a person has accessibility to certain places but not to others, a person has the ability to accomplish certain actions but not others. Accessibility, precisely because it links transport to land use, stresses the fact that space creates a friction, a barrier between origin and desired destination. Moreover, the notion of accessibility pre-supposes knowledge about destinations (see Kwan and Hong 1998 for an empirical study), thus eliminating conno- tations of adventure, discovery or even new experience, so closely intertwined with potential mobility. Accessibility as a concept is thus at odds with key values of Western society like autonomy and freedom, by underscoring the place-boundedness of people, bounded as they are to an ‘origin’ and a given set of destinations, linked together by a known set of links. In this sense, accessibility contrasts starkly with potential mobility, which stresses freedom rather than limitations, endlessness rather than place-boundedness, and autonomy rather dependence. It thus seems that potential mobility rather than accessibility has the firmest roots in Western culture. This may also explain—at least to some extent—why (potential) mobility rather than accessibility has been the locus of much of transportation planning in the twentieth century (see e.g., Vigar 1999; Cervero et al. 2001). Yet, it can be argued that ultimately accessibility best reflects the social meaning of the transport good in Western societies. The emphasis in popular discourse on potential mobility, as reflected in values like freedom of movement, is a result of an individualistic approach to mobility. For a given person in a given space–time setting, a higher level of potential mobility always implies more choice, more experience, more adventure, and, ultimately, more freedom. However, this conceptualization is fundamentally flawed in a comparative perspective. Because space is neither a uniform nor a static entity, households with comparable levels of potential mobility may well differ fundamentally in the level of choice, the possibility of adventure, and the level of freedom they experience (Fig. 2). Hence, in a comparative perspective, potential mobility cannot be equated directly with key values like choice, experience or freedom. This, in turn, suggests that it would be incorrect to equate the transport good with potential mobility. Because, if the distribution of potential mobility does not necessarily correlate with the distribution of more fundamental, and highly ** (a) (b) ** Fig. 2 Potential mobility and choice level. The person in diagram (a) has the same level of potential mobility as the person in diagram (b), as indicated by the identical size of the diagram. However, person (a) has a substantial higher level of choice of activity locations than person (b). Figure based on Dijst (1995, p. 29). ** = person, j = activity location Transportation 123 valued, goods, it can hardly be defended as a proper conceptualization of the social meaning of transport in society. Ultimately, transport is first and foremost a derived ‘need’ (e.g., Rimmer 1985); the social meaning of the good should therefore also be derived from the underlying needs. Since accessibility, in contrast to potential mobility, does link transport to these underling needs, I argue that accessibility rather than potential mobility best captures the social meaning of transport in current Western societies. This concep- tualization is in line with the increasing number of studies into the distribution of acces- sibility over different population groups (e.g. Kawabata and Shen 2007; Hess 2005; Benenson et al. 2010) building on much earlier work in this direction (e.g. Wachs and Kumagai 1973; Black and Conroy 1977), and the rising attention for accessibility in transportation planning, as highlighted by a.o. Garb and Levine (2002), Cervero et al. (2001), and Bertolini et al. (2005). Note that person accessibility is shaped by a wide range of factors, such as mode availability, money and time budgets, or the temporal organization of society, all of which create disparities in accessibility levels between different persons (e.g., Kwan 2000; Neutens et al. 2010b). Furthermore, the focus on person accessibility still leaves unad- dressed the question how person accessibility should be measured. As illustrated by a number of authors, the type of accessibility measure has significant ramifications for the representation of differences in person accessibility (e.g., Kwan 1998; Neutens et al. 2010a) and, hence, for preferred policy responses (e.g., Lucy 1981). This important issue requires a separate discussion that will be left to another occasion; for a first exploration rooted in the social justice literature, see Martens and Golub (in press). Finally, it should be noted that the identification of accessibility as the good that best captures the social meaning of transport has implications for the conceptualization of a separate sphere. It suggests that this sphere does not coincide with the traditional demarcation of transport as a field of government intervention, as the distribution of accessibility is also strongly shaped by other fields of policy intervention, like spatial planning or various types of service delivery policies. Note that the good of accessibility does not differ in this respect from a good like ‘health’, as the distribution of the latter, too, is not only determined by health care in a narrow sense, but also by government programs to provide e.g. proper sanitation (Daniels 2008). Below, I will abstract from this compli- cation for now and assume, in order to further develop the argument, that land use patterns are given and accessibility levels are primarily shaped through transport-related inter- ventions (typically, investments in transport infrastructure and services). In a future paper, I aim to relax this strongly simplifying assumption and explore its consequences for the framework outlined here. Transportation as a field of policy intervention Now that the social meaning of the transport good is more clearly demarcated, it is possible to turn to the second question raised by Walzer’s approach: Does the transport good, defined as accessibility, deserve to be set apart from other goods and distributed in a separate sphere? A likely first response to this question may be that transport as a clearly demarcated field of policy intervention has, by and large, already created a separate sphere around the good of accessibility. More specifically, it could be argued that the policy field of transport, through large-scale investments in transport infrastructure and services, already strongly shapes the distribution of accessibility levels over members of society. While this can hardly be denied, I would argue that the transport field has hardly created Transportation 123 a truly distributive, Walzer-like, sphere around the socially valued good of accessibility, even if we would abstract from the strong interrelationship between transport and land use. Three interrelated arguments can support this claim. First, in traditional transport planning, explicit distributive considerations seem to play a secondary role at best. What guides most transport planning efforts in the industrialized world is a systems perspective. Policy success is first and foremost measured in terms of the performance of (parts of) the transport system, and hardly in terms of how various groups in society benefit from policy measures (Khisty and Zeitler 2001). A clear symbol of this line of thinking is the use of the level-of-service criterion, which guides much of the investments in the road system (e.g. de Dios Ortuzar and Willumsen 2001). This criterion is merely an indicator of the performance of separate links of the road network, i.e. the extent to which ‘free flow’ traffic conditions occur on each link. Contrary to what the wording suggests, the criterion does not generate any insight into the service the transport system provides to the actual user, in terms of quality of travel between real origins and real destinations, let alone into the service provided to different user groups (Martens and Hurvitz 2011). Second, a closer look at transport demand modeling reveals that transport policies are actually heavily guided by market-based distributive principles. As the term suggests, transport demand modeling, which is widely used in the industrialized world as a tool to inform decision-making about investments in transport infrastructure (e.g., Bates 2000) is about demand for transport. Following the common economic definition of demand, transport demand can be defined as a desire for transport backed by the ability to pay for it (Sullivan and Sheffrin 2003). Demand-based modeling thus reflects the distributive mechanisms of the free market, as it takes past travel behavior—i.e. revealed demand for transport—as the basis for forecasting future travel demand. In doing so, it ignores the possible existence of latent demand or of transport needs for which the existing transport system does not cater (Cass et al. 2005; Denmark 1998; Martens 2006). The consequence is that the distribution of transport infrastructure founded on demand-based modeling will, by and large, reflect the way in which money—as a dominant good—is distributed over society. Rather than creating a separate sphere around the good of accessibility, demand- based modeling does exactly the opposite. Third, when distributive criteria do play an explicit role in transport policy, they tend to address only specific issues rather than the distribution of the overarching transport good, i.e. accessibility. Examples of such distributive policies include regional redistribution of fuel taxes (Taylor and Norton 2009), the provision of public transport in low-demand areas (Hodge 1995), welfare-to-work transportation programs (Lucas 2004), and the application of universal design principles to transport systems (Audirac 2008). While distributive principles are a key element of each of these policies, the distributive arrangements fall far short of establishing a true transport sphere within which accessibility is distributed in a fair way over members of society. First, the distributive arrangements typically solve only part of the accessibility problems of the target population, e.g. in terms of the number and variety of destinations being served. Second, and more importantly, a truly distributive approach to transport would not be limited to certain target groups, transport-related revenues or transport systems only. Rather, it would focus on the overall distribution of accessibility over members of society, i.e. it would link the level of accessibility provided to one group to the accessibility levels received by other groups (cf. Preston and Rajé 2007). Thus, while the field of transport is certainly a clearly demarcated area of government intervention, and distributive concerns sometimes play a formative role in policy Transportation 123 development (e.g., Hay and Trinder 1991; Trinder et al. 1991; Langmyhr 1997), it has hardly resulted in a Walzer-like sphere around accessibility as a socially valued good. This stands in sharp contrast to goods like health and education, around which, in many countries over the course of the twentieth century, Walzer-like spheres have been created to guarantee that the distribution of those goods is not shaped primarily by the distribution of money or power. Transport as a separate sphere The conclusion that the policy field of transport has not created a Walzer-like sphere around accessibility as a good, still leaves open the question whether accessibility should be singled out and a separate sphere created to guarantee a certain level of autonomy in the distribution of accessibility. Two lines can assist in answering this question. The first focuses on the value of the transport good in current societies, while the second explores the way in which the transport good defined as accessibility is currently distributed over members of society. There can be no discussion that the social meaning of transport has changed tremen- dously over the past two centuries (e.g., Knowles 2006). In traditional societies, transport was primarily a matter of walking. Space was organized around the particularities of transport by foot, with necessities of life located within walking distance of most homes (Mumford 1961). Only a small segment of society could afford regular travel by horse or horse-drawn carriages. The near-universal ability to walk—with the exception of small infants and the disabled—implied that accessibility, at least to everyday destinations, was possible for all, although in many cities regulations and social codes de facto curtailed accessibility levels for e.g. women or lower classes (Muellner 2002; Braidotti 1994). Thus, while accessibility levels will have differed between people, depending on the exact res- idential location of a person within the city (walls) and vis-à-vis key land uses like the central market place, the dominance of walking guaranteed minimal accessibility levels for all and relatively small differences in these levels, at least to everyday destinations. The introduction of motorized transport for movement of people, but especially the ascent of private, individualized, motorized transport, changed the situation fundamentally (e.g., Illich 1974). The widespread availability of the motorcar, triggered by vast invest- ments in the road system, implied a fundamental shift in the meaning of transport. The dominance of the motorcar resulted in a vast dispersal of urban functions over space, eliminating walking as a feasible alternative for most trips. As a result, motorized transport changed rapidly from a luxury into a necessity—few people in industrialized societies are now able to manage their daily lives without, individualized or collective, motorized transport. Mobility became a structuring dimension of social life (Kaufmann et al. 2004; Urry 2000). The rise of motorized transport has thus re-shaped the social meaning of the transport good. Once, transport was hardly perceived as a good, but rather taken-for-granted, as a natural extension of life itself. Now, the ability to travel through space has become so important for everyday lives, that mobility can be considered an asset. Kaufmann et al. (2004) even consider mobility—or motility as they term it—a form of capital, that may form links with, and can be exchanged for, other forms of capital, whether economic, cultural or social in shape. The availability or in-availability of transport, in other words, shapes people’s life opportunities. It is this interrelationship that shapes the social meaning of transport in today’s industrialized societies. Transportation 123 The second line of argumentation that can provide ammunition for the qualification of transport as a separate distributive sphere, relates to the way in which transport is currently distributed over members of society. The aim of the paper is not to provide a full overview of these distributive patterns (see Schweitzer and Valenzuela 2004), but rather to point at patterns and tendencies in industrialized societies. These tendencies can be derived from various strands of literature, including the spatial mismatch literature, which addresses the interrelationship between decentralization of employment and job accessibility of low- income residents; studies on transport and gender, which explore the problems of women to access work and combine multiple tasks in a spatially fragmented environment; and the more recent body of work on transport and social exclusion, which has added a more qualitative picture of the accessibility problems experienced by mobility deprived groups like the (urban) poor, ethnic minorities, children and the elderly. Taken together, these strands of research draw a picture of how the lack of motility limits the possibilities for personal accumulation of economic and social capital, to paraphrase the words of Kauf- mann et al. (2004). The spatial mismatch literature, for instance, has generated substantial evidence that the concentration of low income groups in central cities, the decentralization of low wage jobs, and the lack of investment in new public transport facilities, have in combination led to a sharp decline in job access among the urban poor (e.g., Ihlanfeldt 1993; Ong and Miller 2005). The literature on women and transport provides insight into the mobility problems experienced by women combining multiple tasks, especially if they do not own and operate a car (e.g., Blumenberg 2004). The social exclusion literature draws a qualitative picture of the everyday transport dilemmas faced by deprived popu- lation groups: the decisions to forgo a doctor’s appointment, a meeting with family and friends, a job interview, or even a full-fledged job opportunity, due to lack of adequate transport means. By doing so, this literature also highlights the intricate relationship between lack of mobility and the wider process of social exclusion (e.g., Cass et al. 2005; Hine and Mitchell 2001; Lucas 2004). Taken together, I claim that a strong case can be made for the recognition of transport as a separate distributional sphere. Transport has developed from a taken-for-granted and hardly disputed good, to a highly desirable good, an indispensable resource shaping one’s life path, and a good whose availability is subject of public debate. Furthermore, current policy arrangements allow the distribution of transport to be dominated by the availability of money, resulting in substantial inequalities between population groups and even in a lack of accessibility among a considerable part of the population. The evidence, only briefly summarized here, seems strong enough to draw boundaries around the transport good and set it apart from other goods. Towards a distributive principle for transport The recognition of transport as a separate distributive sphere raises a third question. For, if the distribution of the transport good is to be organized in a separate policy sphere, what criterion should guide the distribution of the good? Walzer’s theory provides no direct guidance here, as he upholds that the distribution of a good should be guided by internal reasons only, i.e. be derived from the social meaning a particular society ascribes to a good (see also Trappenburg 2000). Lacking a widely-shared agreement on the social meaning of the transport good, the discussion of possible distributive principles is necessarily an open-ended one. The explorations below start from the conceptualization of transport as accessibility. By critically reflecting on the applicability of a number of widely used and Transportation 123 defended distributive principles to the distribution of accessibility, some progress may be booked. The goal is not to reach a final understanding, but at least to reach beyond a mere overview of possible criteria (see e.g., Hay 1995; Khisty 1996; Langmyhr 1997). The arguments brought to the fore will be eclectic, drawing as much on the particular nature of the transport good as on moral reasoning and theories of justice. As mentioned above, for reasons of simplicity, the analysis below is developed from the viewpoint of the policy-maker(s) responsible for decisions regarding investments in (public) transport infrastructure and services. Obviously, investments in infrastructure are only one possibility to change the distribution of accessibility over households. Accessi- bility levels may also be influenced through careful urban planning, through a spatial (re-)distribution of services, or through information and communication technologies. The distributive criterion defended below might also be applied to these types of government interventions in households’ accessibility levels, although it may require a further devel- opment of the criterion. Furthermore, it needs to be noted that the impact of transport infrastructure provision on accessibility levels is not a straightforward matter, as changes in accessibility levels are often accompanied by changes in travel patterns and, in the longer run, by changes in land use, both of which can have substantial impacts on accessibility levels (e.g., Hansen 1959). Due to feedback mechanisms between transport and land use, improvements in accessi- bility levels for a large share of the population may actually result in decreasing acces- sibility levels for other, often marginalized, groups (Baeten et al. 1997). The analysis below abstracts from these dynamics and, for reasons of simplicity, assumes that the impacts of new transport facilities on accessibility levels can be assessed in a relatively straightforward way. In line with much of the social justice literature, I start my exploration of possible justice principles to guide the distribution of accessibility with the criterion of equality. Equality refers to a situation in which a good is distributed evenly over people, irrespective of the differences between those people. As Smith (1994) and others (e.g., Kolm 1996) have argued, the challenge for scholars of social justice is to provide convincing arguments why to deviate from the criterion of equality. Lacking such arguments, equality remains as the correct way to distribute a good. However, a strong argument can be put forward against the distribution of accessibility based on the principle of equality. Experiments carried out as early as the 1920s have pointed out that even if starting from an even distribution of opportunities over space, centers will develop over time as a consequence of the advantages connected to spatial proximity (e.g., Puu 2005). In other words, space by its very nature is divided into center and periphery. As a result, inequality in accessibility is inevitable. Transport policies cannot correct the differences between center and periphery; they would at best redefine the relationship between them. The principle of equality, in short, is hardly suited to guide the distribution of the transport good if defined as accessibility. The principle of desert or merit is a second, widely defended, distributive criterion. Sadurski (1985, p. 134) distinguishes three elements of merit: it is always related to a burden; it is related to a moral judgment of the actions of someone (and therefore fun- damentally different from entitlement); and it is related to past actions. The principle of merit has especially been applied to the distribution of income, as it provides the moral foundation for linking income to work (as a burden) rather than other criteria (such as need or equality). For our purposes, the question is to what extent the principle of merit could be applied to the field of transport. What sort of burden and past action would make a person deserving of a higher accessibility level than another person? There does not seem to be an Transportation 123 obvious link between any particular burden and the provision of transport, in the same way as there exist a widely accepted link between work and income. The only link that might be made is to location choice. It could be argued, for instance, that a person willing to accept the ‘burden’ of a high-density neighborhood in a central location, e.g. in terms of pollution levels or mortgage payments, is more deserving of a high accessibility level, than a person opting to live in a low-rise, suburban, neighborhood. But much can be brought against this argument. For instance, to what extent is residential location a matter of choice? To what extent is inner city living truly a burden? And, if it is, to what extent is transport an appropriate reward for the burdens of inner-city life? The link between location as a ‘burden’ and transport availability as an appropriate ‘reward’ is at best a tacit one, and hardly provides a solid basis for the distribution of transport. Another widely defended justice criterion is the principle of need (e.g., Sen 1973). This criterion, if applied to transport, would imply that individuals or groups that need higher accessibility levels than others—e.g., because they have to access more places—would also ‘receive’ more accessibility through a targeted design of transport infrastructure and additional policy measures. While the need criterion may appeal to some, its application to the field of transport is extremely problematic. The challenge is twofold: first, to distin- guish needs from wants, and, second, to translate basic needs—such as the need for food or health—into travel needs. The first is an extremely touchy subject, although the literature on basic needs can provide guidance (e.g., Doyal and Gough 1991; Braybrooke 1987). The second is extremely precarious given the fact that it has become increasingly problematic to relate needs to well-defined travel needs to ‘‘pre-defined ‘public’ goods and services located within pre-determined ‘formal’ locations/destinations’’ (Cass et al. 2005, p. 551). Cass et al. actually argue that the increasing importance of social networks in maintaining a ‘good life’ has resulted in a dispersed pattern of travel needs that can hardly be captured through regular transport analysis. But even if these problems could be solved, a more practical barrier for the application of the need criterion to the transport field remains. This barrier is a result of the fact that transport infrastructure and services are provided to collectives rather than individuals, and for the long-term rather than the short-term. As a result, the current needs of individuals are of little relevance in the provision of transport facilities. The needs of collectives, such as neighborhoods, now and in the future, are what counts. Since population structures of neighborhoods can and will change over time, the consequence would be that near identical levels of transport service would have to be provided to each and every neighborhood. Hence, our conclusion is that the criterion of need lacks distinctive force to guide the distribution of the transport good (see also Apparicio and Seguin 2006). The last two distributive principles have in common that they relate the distribution to the characteristics of a person, i.e. burdens or needs. Another set of principles does not take these characteristics into account, but rather distributes a good in an arithmetic way. Rawls, in his ‘A Theory of Justice’, suggests that at least four such principles should be discussed between the individuals placed behind his famous veil of ignorance (Rawls 1971; see also Frohlich and Oppenheimer 1992): maximizing the average income; maximizing the average income with a floor constraint for the minimum; maximizing the average income with a range constraint; and maximizing the lowest income (Rawls’ difference principle). Each of these principles could be easily transposed to the field of transport, by replacing the word ‘income’ with ‘accessibility’. While Rawls by no means argued that his approach could or should be transposed to specific policy fields (see Blocker and Smith 1980), for the purpose of the paper it is useful to explore the applicability of these four principles to the distribution of accessibility. The question here is, whether each or any of the principles Transportation 123 could serve as a guiding principle for the transport sphere. When looking at the options, the first of these criteria (maximizing the average accessibility level) seems to be of little relevance, as it hardly guides the actual distribution of the transport good over population groups. Rawls’ difference principle (maximizing the lowest level), in turn, also has its problems when applied to accessibility. Rawls developed this criterion for income, based on the understanding that differences in income might result in a better working economy, which would then, in turn, generate a higher level of income for the worst-off. The question is if a comparable mechanism could be at work in transport, i.e. whether by allowing differences in accessibility the whole transport system would perform better, thereby generating a higher accessibility level for the worst-off. The argument seems at best far-fetched and surely falls far short of providing a practical criterion to guide dis- tribution in the transport sphere. This brief analysis of possible distributive criteria suggests that two potential principles remain as possibly relevant for the field of transport: (1) maximizing the average acces- sibility level with a floor constraint for the minimum; and (2) maximizing the average accessibility level with a range constraint. The difference between these two principles is a qualitative one; the second criterion simply defines the height of the floor constraint in relation to the maximal accessibility level experienced by the best-off person. In case the second criterion is employed in policy making, the floor constraint will be automatically adjusted in accordance with changing accessibility levels. The first criterion lacks such an adaptive mechanism, implying that the floor constraint will have to be re-assessed whenever substantial changes in accessibility levels occur across-the-board. Following these latter observations the so-called ‘maximax’ criterion for the distribution of accessibility has been defined. The criterion combines the goal of maximum average accessibility with a limit on the maximal gap allowed between the worst-off and the best-off in terms of accessibility levels. The application of the maximax principle in transport planning and policy would assist decision-makers in the selection of transport projects that maximize average accessibility levels, while ensuring that the accessibility gaps between population groups remain within an acceptable range (Fig. 3). In comparison to the equality principle, the maximax criterion does not demand uniformity and is thus in line with the inevitable differences in accessibility created by space. And in comparison to the need criterion, the maximax principle does not require a paternalistic approach in which transport institutions rather than people themselves determine which trips count as ‘needs’ and which as ‘wants’. Given these features, the maximax principle seems to be a practically applicable principle to guide the distribution of the transport good within a separate distributive sphere. Note that maximum average accessibility not necessarily implies maximum mobility, as accessibility can also be achieved through e.g. land use interventions. It neither has to imply an increase in accessibility levels across-the-board, as the requirement to limit accessibility gaps up to a certain maximum may well imply policies that increase accessibility levels for some at the expense of the (high) accessibility levels of others. It may be clear that the suggested distributive approach, and the application of the maximax principle, would have profound implications for transportation planning. It would imply a shift from a systems approach to the transport network, as is common today, to a systematic assessment of the accessibility gaps between the transport disadvantaged and those groups in society that experience the highest accessibility levels. The application of the maximax principle would require policy makers to guarantee that these gaps do not exceed a pre-defined threshold. Whenever the threshold would be exceeded, as might be the case for e.g. car-less households in certain ‘pockets’ of the urban region, transport investment priorities would have to be set so that the gaps in accessibility levels would be Transportation 123 reduced to the pre-defined level of acceptance. In practice, this might imply, for example, investing in a system of bus lines and lanes that serves deprived neighborhoods, rather than in a new railway line or highway extension that alleviates a highly congested corridor. Conclusion In this paper, I have sought to apply the ideas of Walzer to the field of transport. Walzer maintains that justice is a matter of fences, fences between spheres in which goods with distinct social meanings are being distributed solely on the basis of criteria that are relevant for those goods. I have argued that, given the distinct meaning of transport in current societies, as well as the emerging gaps in its distribution, transport ‘deserves’ its own distributive sphere. The establishment of such a sphere would ensure that the distribution of accessibility over people will be guided by a deliberate distributive policy, rather than strongly shaped by the distribution of money. I have subsequently explored what kind of justice principle could guide the distribution of the transport good, defined as accessibility, once a separate sphere would be established. This preliminary exploration has resulted in the elimination of a number of widely supported distributive principles, and in the tentative identification of a criterion that seems to match the particularities of the transport good. Many issues still remain. First, for reasons of simplicity, the explorations in the paper have been based on a simplified, static, perspective on the land use–transport interaction. A proper distributive perspective to transport defined as accessibility will have to take into account the inherently dynamic interplay between changes in accessibility levels and land use patterns. It also will have to take into consideration the notion of choice, e.g. the fact that people may trade-off higher levels of accessibility against e.g. lower housing costs, and its consequences for the way in which gaps in accessibility levels should be assessed. Furthermore, the definition of transport as accessibility requires a broader conceptuali- zation of government intervention, to include e.g. service delivery policies and ICT range + 0range constraint do nothing scenario a cc e ss ib ili ty le ve l highest accessibility level average lowest accessibility level range + 1 le ve l o f a cc e ss highest accessibility level average lowest accessibility level range + 0 le ve l o f a cc e ss highest accessibility level average lowest accessibility level le ve l o f a cc e ss highest accessibility level average lowest accessibility level scenario a scenario b scenario c Fig. 3 Example application of the maximax principle. The diagrams depict the impact of four alternative infrastructure investments on the distribution of accessibility over households. The left-hand diagram describes the situation at t1 for the do-nothing scenario. As in case of regular cost-benefit analysis, this scenario is used as the base line against which to compare alternative investment scenarios. Note that the do-nothing scenario exactly satisfies the range constraint in accessibility level between the worst-off and best-off, as set by policy makers. Scenario A depicts a situation in which accessibility levels are improved across-the-board: both the worst-off and best-off experience an improvement in accessibility, while the average accessibility level also increases. However, following the maximax principle, this scenario has to be rejected as the gap between the best-off and the worst-off exceeds the range constraint set by policy makers (as indicated by ‘range ? 1’ in the diagram). Scenarios B and C both satisfy the range constraint and can therefore be considered as possible investments strategies. The choice between these scenarios and the do- nothing scenario is subsequently made through a comparison of the average accessibility level in each scenario. Scenario C results in a substantially higher average accessibility level than scenario B or the do- nothing scenario. Hence, scenario C is to be preferred, despite the fact that it results in a lower accessibility level for both the worst-off and the best-off household than scenario B Transportation 123 measures. Also, the defended maximax principle, and the underlying indicator of acces- sibility levels, will have to be operationalized, so that its value can be assessed in practical case studies. Finally, and perhaps most importantly, the proposed distributive approach to transport will have far-reaching consequences for the institutional framework of transport planning, perhaps comparable to those generated by proposed schemes for personal carbon rationing (see e.g. Fawcett 2004), which will have to be explored and addressed. For these and other reasons, the paper hardly provides final answers to its central questions. Rather, it should be viewed as the opening of an (explicit) debate about the social meaning of the transport good in current hyper-mobile societies, the need for an explicit distributive transport policy, and the distributive principle that should guide such a policy. Acknowledgments The paper is the result of a larger research project into justice and transport funded by the Volvo Research and Educational Foundations. Open Access This article is distributed under the terms of the Creative Commons Attribution License which permits any use, distribution, and reproduction in any medium, provided the original author(s) and the source are credited. References Altshuler, A.: The Urban Transportation System. MIT Press, Cambridge (1979) Apparicio, P., Seguin, A.-M.: Measuring the accessibility of services and facilities for residents of public housing in Montreal. Urban Stud. 43, 187–211 (2006) Audirac, I.: Accessing transit as universal design. J. Plan. Lit. 23, 4–16 (2008) Baeten, G., Spithoven, A., Albrechts, L.: Mobiliteit: landschap van macht en onmacht. Acco, Leuven (1997) Bates, J.: History of demand modelling. In: Hensher, D.A., Button, K.J. (eds.) Handbook of Transport Modelling, pp. 11–34. Pergamon, Oxford (2000) Beatley, T.: Equity and distributional issues in infrastructure planning: a theoretical perspective. In: Stein, J.M. (ed.) Public Infrastructure Planning and Management, pp. 208–226. Sage, Newbury Park (1988) Benenson, I., Martens, K., Rofe, Y.: Measuring the gap between car and transit accessibility: estimating access using a high-resolution transit network geographic information system. Transp. Res. Rec. J. Transp. Res. Board 2144, 28–35 (2010) Bergman, S., Sager, T.: The ethics of mobilities: rethinking place, exclusion, freedom and environment, p. 275. Ashgate, Aldershot (2008) Bertolini, L., le Clercq, F., Kapoen, L.: Sustainable accessibility: a conceptual framework to integrate transport and land use plan-making. Two test-applications in the Netherlands and a reflection on the way forward. Transp. Policy 12, 207–220 (2005) Black, J., Conroy, M.: Accessibility measures and the social evaluation of urban structure. Environ. Plan. A 9, 1013–1031 (1977) Blocker, H.G., Smith, E.H.: John Rawls’ Theory of Social Justice: An Introduction. Ohio University Press, Athens (1980) Blumenberg, E.A.: Engendering effective planning: spatial mismatch, low-income women, and transpor- tation policy. J. Am. Plan. Assoc. 70, 269–281 (2004) Braidotti, R.: Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory. Columbia University Press, New York (1994) Braybrooke, D.: Meeting Needs. Princeton University Press, Princeton (1987) Bröcker, J., Korzhenevych, A., Schürmann, C.: Assessing spatial equity and efficiency impacts of transport infrastructure projects. Transp. Res. B 44, 795–811 (2010) Cass, N., Shove, E., Urry, J.: Social exclusion, mobility and access. Sociol. Rev. 53, 539–555 (2005) Cervero, R.: Efficiency and equity impacts of current transit fare policies. Transp. Res. Rec. J. Transp. Res. Board 799, 7–15 (1981) Cervero, R., Neil, J.S., Paul, B.B.: Transportation planning. In: International Encyclopedia of the Social & Behavioral Sciences, pp. 15873–15878. Pergamon, Oxford (2001) Couclelis, H.: The death of distance. Environ. Plan. B 23, 387–389 (1996) Transportation 123 Cresswell, T.: The right to mobility: the production of mobility in the courtroom. Antipode 38, 735–754 (2006) Daniels, N.: Just Health: Meeting Health Needs Fairly. Cambridge University Press, Cambridge (2008) de Dios Ortuzar, J., Willumsen, L.G.: Modelling Transport, 3rd edn. Wiley, Chichester (2001) Denmark, D.: The outsiders: planning and transport disadvantage. J. Plan. Educ. Res. 17, 231–245 (1998) Dijst, M.: Het elliptisch leven: actieruimte als integrale maat voor bereik en mobiliteit. Koninklijk Nederlands Aardrijkskundig Genootschap/Faculteit Bouwkunde Technische Universiteit Delft, Utrecht/Delft (1995) Dong, X., Ben-Akiva, M.E., Bowman, J.L., Walker, J.L.: Moving from trip-based to activity-based measures of accessibility. Transp. Res. A 40, 163–180 (2006) Doyal, L., Gough, I.: A Theory of Human Need. The Macmillan Press, Houndsmill (1991) Dworkin, R.: Reply to Michael Walzer. The New York Review of Books, 30 (1983a) Dworkin, R.: To each his own. The New York Review of Books, 30 (1983b) Ecola, L., Light, T.: Equity and congestion pricing: a review of the evidence. Rand Corporation, Santa Monica (2009) Fabre, C.: Justice in a Changing World. Polity Press, Cambridge (2007) Farrington, J., Farrington, C.: Rural accessibility, social inclusion and social justice: towards conceptuali- sation. J. Transp. Geogr. 13, 1–12 (2005) Fawcett, T.: Carbon rationing and personal energy use. Energy Environ. 15, 1067–1084 (2004) Feitelson, E.: Introducing environmental equity dimensions into the sustainable transport discourse: issues and pitfalls. Transp. Res. D 7, 99–118 (2002) Forkenbrock, D.J., Schweitzer, L.A.: Environmental justice in transportation planning. J. Am. Plan. Assoc. 65, 96–111 (1999) Frohlich, N., Oppenheimer, J.A.: Choosing Justice: An Experimental Approach to Ethical Theory. Uni- versity of California Press, Berkeley (1992) Garb, Y., Levine, J.: Congestion pricing’s conditional promise: promotion of accessibility or mobility? Transp. Policy 9, 179–188 (2002) Garrett, M., Taylor, B.: Reconsidering social equity in public transit. Berkeley Plan. J. 13, 6–27 (1999) Hansen, W.G.: How accessibility shapes land use. J. Am. Inst. Planners 25, 73–76 (1959) Harvey, D.: The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change. Blackwell, Malden (1990) Hay, A.M.: Concepts of equity, fairness and justice in geographical studies. Trans. Inst. Br. Geogr. 20, 500–508 (1995) Hay, A.M., Trinder, E.: Concepts of equity, fairness, and justice expressed by local transport policymakers. Environ. Plan. C 9, 453–465 (1991) Hess, D.B.: Access to employment for adults in poverty in the Buffalo–Niagara region. Urban Stud. 42, 1177–1200 (2005) Hine, J.P., Mitchell, F.: Better for everyone? Travel experiences and transport exclusion. Urban Stud. Special Issue on ‘The barrier free city: possibilities and prospects’ edited by R. Imrie 38, 319 (2001) Hodge, D.C.: Fiscal equity in urban mass transit systems: a geographical analysis. Ann. Assoc. Am. Geogr. 78, 288–306 (1988) Hodge, D.C.: My fair share: equity issues in urban transportation. In: Hanson, S. (ed.) The Geography of Urban Transportation, 2nd edn. The Guilford Press, New York (1995) Ihlanfeldt, K.: Intra-urban job accessibility and hispanic youth employment rates. J. Urban Econ. 33, 254–271 (1993) Illich, I.: Energy and Equity. Marion Boyars, London (1974) Kaufmann, V.: Re-Thinking Mobility: Contemporary Sociology. Ashgate, Aldershot (2002) Kaufmann, V., Bergman, M.M., Joye, D.: Motility: mobility as capital. Int. J. Urban Reg. Res. 28, 745–756 (2004) Kawabata, M., Shen, Q.: Commuting inequality between cars and public transit: the case of the San Francisco Bay area, 1990–2000. Urban Stud. 44, 1759–1780 (2007) Khisty, C.J.: Operationalizing concepts of equity for public project investments. Transp. Res. Rec. J. Transp. Res. Board 1559, 94–99 (1996) Khisty, C.J., Zeitler, U.: Is hypermobility a challenge for transport ethics and systemicity? Syst. Pract. Action Res. 1, 597–613 (2001) Knowles, R.D.: Transport shaping space: differential collapse in time–space. J. Transp. Geogr. 14, 407–425 (2006) Kolm, S.-C.: Modern Theories of Justice. MIT Press, Cambridge (1996) Kwan, M.-P.: Space–time and integral measures of individual accessibility: a comparative analysis using a point-based framework. Geogr. Anal. 30, 191–216 (1998) Transportation 123 Kwan, M.-P.: Gender and individual access to urban opportunities: a study using space–time measures. Prof. Geogr. 51, 210–227 (1999) Kwan, M.-P.: Gender differences in space–time constraints. Area 32, 145–156 (2000) Kwan, M.-P., Hong, X.-D.: Network-based constraints-oriented choice set formation using GIS. Geogr. Inf. 5, 139–162 (1998) Langmyhr, T.: Managing equity: the case of road pricing. Transp. Policy 4, 25–39 (1997) Lomasky, L.E.: Autonomy and automobility. Indep. Rev. v.II, 5–28 (1997) Lucas, K.: Running on Empty: Transport, Social Exclusion and Environmental Justice. Policy Press, Bristol (2004) Lucy, W.H.: Equity and planning for local services. J. Am. Plan. Assoc. 47, 447–457 (1981) Lucy, W.H.: Equity planning for infrastructure: applications. In: Stein, J.M. (ed.) Public Infrastructure Planning and Management, pp. 227–240. Sage, Newbury Park (1988) Martens, K.: Basing Transport Planning on Principles of Social Justice. Berkeley Plan. J. 19, 1–17 (2006) Martens, K.: Substance precedes methodology: on cost-benefit analysis and equity. Transportation 38(6), 959–974 (2011) Martens, K., Golub, A.: A justice-theoretic exploration of accessibility measures. In: Geurs, K.T., Krizek, K.J. (eds.) Accessibility and Transport Planning: Challenges for Europe and North America. Edward Elgar, Cheltenham (in press) Martens, K., Hurvitz, E.: Distributive impacts of demand-based modelling. Transportmetrica 7, 181–200 (2011) Miller, H.J.: Place-based versus people-based geographic information science. Geogr. Compass 1, 503–535 (2007) Miranda, R., Tunyavong, I.: Patterned inequality? Reexamining the role of distributive politics in urban service delivery. Urban Aff. Q. 29, 509–534 (1994) Muellner, B.: The deviance of respectability: nineteenth-century transport from a woman’s perspective. J. Transp. Hist. 23, 37–45 (2002) Mumford, L.: The City in History: Its Origins, Its Transformations, and Its Prospects. Harcourt, Brace & World, New York (1961) Murray, A.T., Davis, R.: Equity in regional service provision. J. Reg. Sci. 41, 577–600 (2001) Neutens, T., Schwanen, T., Witlox, F., De Maeyer, P.: Equity of urban service delivery: a comparison of different accessibility measures. Environ. Plan. A 42, 1613–1635 (2010a) Neutens, T., Schwanen, T., Witlox, F., De Maeyer, P.: Evaluating the temporal organization of public service provision using space–time accessibility analysis. Urban Geogr. 31, 1039–1064 (2010b) Niemeier, D.A.: Accessibility: an evaluation using consumer welfare. Transportation 24, 377–396 (1997) Ong, P.M., Miller, D.: Spatial and transportation mismatch in Los Angeles. J. Plan. Educ. Res. 25, 43–56 (2005) Pirie, G.H.: Measuring accessibility: a review and proposal. Environ. Plan. A 11, 299–312 (1979) Preston, J., Rajé, F.: Accessibility, mobility and transport-related social exclusion. J. Transp. Geogr. 15, 151–160 (2007) Puu, T.: On the genesis of hexagonal shapes. Netw. Spatial Econ. 5, 5–20 (2005) Rawls, J.: A Theory of Justice. Harvard University Press, Cambridge (1971) Richardson, H.W.: A note on the distributional effects of road pricing. J. Transp. Econ. Policy 8, 82–85 (1974) Rimmer, P.: Transport geography. Prog. Hum. Geogr. 9, 271–277 (1985) Rucker, G.: Public transportation: another gap in rural America. Transp. Q. 38, 419–432 (1984) Sadurski, W.: Giving Desert Its Due: Social Justice and Legal Theory. D. Reidel Publishing Company, Dordrecht (1985) Sager, T.: Footloose and forecast-free: hypermobility and the planning of society. Eur. J. Spatial Dev. September 2005, 1–23 (2005) Schweitzer, L., Stephenson, M.: Right answers, wrong questions: environmental justice as urban research. Urban Stud. 44, 319–337 (2007) Schweitzer, L., Valenzuela, A.: Environmental injustice and transportation: the claims and the evidence. J. Plan. Lit. 18, 383–398 (2004) Sen, A.K.: On Economic Inequality. Clarendon Press, Oxford (1973) Smeed, R.J.: Road Pricing: The Economic and Technical Possibilities. HMSO, London (1964) Smith, D.M.: Geography and Social Justice. Blackwell, Cambridge (1994) Sullivan, A., Sheffrin, S.M.: Economics: Principles in Action. Pearson Prentice Hall, Upper Saddle River (2003) Talen, E.: Access: geographical. Int. Encycl. Soc. Behav. Sci. 1, 30–33 (2001) Transportation 123 Talen, E., Anselin, L.: Assessing spatial equity: an evaluation of measures of accessibility to public play- grounds. Environ. Plan. A 30, 595–613 (1998) Taylor, B.D., Norton, A.T.: Paying for transportation: what’s a fair price? J. Plan. Lit. 24, 22–36 (2009) Teuber, A.: Bookreview of spheres of justice by Michael Walzer. Political Theory 12, 118–123 (1984) Trappenburg, M.: In defence of pure pluralism: two readings of Walzer’s spheres of justice. J. Polit. Philos. 8, 343–362 (2000) Trinder, E., Hay, A.M., Dignan, J., Else, P., Skorupski, J.: Concepts of equity, fairness and justice in British transport legislation, 1960–1988. Environ. Plan. C 9, 31–50 (1991) Urry, J.: Sociology Beyond Societies: Mobilities for the Twenty First Century. Routledge, London (2000) Van Wee, B.: Transport and Ethics: Ethics and the Evaluation of Transport Policies and Projects. Edward Elgar, Cheltenham (2011) Vigar, G.: Transport for people: accessibility, mobility and equity in transport planning. In: Greed, C.H. (ed.) Social Town Planning, pp. 90–101. Routledge, London (1999) Wachs, M., Kumagai, T.G.: Physical accessibility as a social indicator. Socio-Econ. Plan. Sci. 6, 357–379 (1973) Walzer, M.: Spheres of Justice: A Defense of Pluralism and Equality. Basic Books, New York (1983) Walzer, M.: Response. In: Miller, D., Walzer, M. (eds.) Pluralism, Justice, and Equality, pp. 281–296. Oxford University Press, Oxford (1995) Wu, B.M., Hine, J.P.: A PTAL approach to measuring changes in bus service accessibility. Transp. Policy 10, 307–320 (2003) Young, I.M.: Justice and the Politics of Difference. Princeton University Press, Princeton (1990) Zeitler, U.: Grundlagen der Verkehrsethik. Logos Verlag, Berlin (1999) Author Biography Karel Martens is an assistant professor at the Institute for Management Research, Radboud University Nijmegen, the Netherlands. His main research interests include transport and justice, the land use–transport interrelationship, parking, and multi-modal transportation. He has published and presented a number of papers on transport and justice, among others in Transportation (2011), Transportmetrica (2011, with co- author), The Annals of Regional Science (2010, with co-authors), Transportation Research Records (2010, with co-authors), Berkeley Planning Journal (2006), and at the Annual Conference of the Transportation Research Board (2007, 2009, 2011). Transportation 123 Justice in transport as justice in accessibility: applying Walzer’s ‘Spheres of Justice’ to the transport sector Abstract Introduction Walzer’s Spheres of Justice The social meaning of the transport good Transportation as a field of policy intervention Transport as a separate sphere Towards a distributive principle for transport Conclusion Acknowledgments References 
work_3a5wf45pobc3neqiawkkny223i	----	Microsoft Word - Hosseini.docx Vol. 6, No. 9, 2017 DOI: 10.22099/JPS.2017.4965, ISSN: 2322-2557 pp. 101-103   William Shakespeare’s Sonnets. Translated by Omid Tabibzadeh. Tehran: Niloofar Publishers, 2017. 411 pp. ISBN 978-964-448-712-5 (hardback) Mostafa Hosseini Bu-Ali Sina University Hamedan, Iran hosseiny.mostafa1352@gmail.com Without question, William Shakespeare (1564- 1616) occupies a unique position in the history of English literature. He wrote 37 plays, 154 sonnets and 4 narrative poems. Shakespeare’s sonnets are the most personal of his works, so it acts as a unique introduction to Shakespeare’s mindset, on the one hand, and very seminal entry for the familiarity with the manifestations of thought and literature in Renaissance England, on the other hand. Because of the importance of Shakespeare’s sonnets in English literature and, by extension, in the World literature, the lack of a complete Persian translation and interpretation necessitates this new rendering. Translation of Shakespeare’s works in Persian has a long and eventful history. As far as we know, during the Qajar Era (1785- 1925) Shakespeare’s plays began to appear in Persian costume. Hosseingholi Salvar was the first one who translated Shakespeare’s comedy The Taming of the Shrew in 1899/ 1278. Later, Abu’l-Qāsem Khān Qarāgozlu, better known as Nāṣer-al-molk, who was a Persian politician during Qajar Era, translated The Tragedy of Othello, the Moor 102                         Persian Literary Studies Journal   of Venice which came out in 1961/1339 in France. Fortunately, from that time onwards, the translation of Shakespeare’s plays continues up to the present time. Unlike Shakespeare’s plays that some of them (e.g. Hamlet, Macbeth, Othello, King Lear, and Romeo and Juliet) have been translated over and over again, Persian translators have not paid much attention to Shakespeare’s poems. From Shakespeare’s narrative poems just Venus and Adonis and The Rape of Lucrece have been translated into Persian respectively in 1301/1922 and 1335/1956. It is worth mentioning that Lotfali Suratgar, a professor of English and comparative literature at the University of Tehran, was the first person who produced a Persian version of these two long narrative poems. Unluckily, the former remained unfinished. The credit for translating Shakespeare’s Sonnets in Persian is almost unanimously given to Iranian poet and translator, Masoud Farzad. Presumably, he translated five of Shakespeare’s sonnets into prose between 1933/1312 and 1938/1317. In addition to scattered prose and verse translations of Shakespeare’s sonnets, there are two selected bilingual translations of his sonnets: one in prose, including 100 sonnets, by Taghi Tafazzoli (1998/ 1377), and the other in verse, including 78 sonnets, by Behnam Moghddam (2000/1370). But translating a collection of Shakespeare’s Sonnets cannot provoke the same sense in the reader as that of the whole cycle. Although each of these sonnets is independent, they are thematically linked. Omid Tabibzadeh’s recent translation is the first complete translation of Shakespeare’s Sonnets into Persian. The volume includes all the 154 sonnets, features a long, informative, and path-breaking introduction, and helpful glosses. Providing information on the genre, English sonnet, and Shakespeare’s Sonnets, the “Introduction” is long and informative. Discussions include the dedication of Thorpe’s 1609 edition, the 1940 pirated edition of the sonnets by John Benson, their order and date of composition and autobiographical contents. Selection of medium and form are among critical decisions for translating poetry. Tabibzadeh has rendered Shakespeare’s Sonnets into lucid and fluent Persian prose. Also, he has done his best to keep Shakespeare’s brevity of WILLIAM SHAKESPEARE’S SONNETS 103 language, that is, for each line in English there is exactly one line in Persian. All in all, it is a successful translation with sporadic flourishes of lyricism. The third section is the most informative part of the book as it is impossible to have a deep understanding of Shakespeare’s Sonnets without explanatory notes, because they are replete with political and social references, mythological and biblical allusions, and literal devices e.g. puns, double entendres, and word plays. In my opinion, it is the translator’s towering achievement. To do this, he has consulted the most authentic and up to date sources written by seminal Shakespeare-scholars, e.g. Thomas George Tucker and Katherine Duncan-Jones. Despite all these merits, the book has also its drawbacks. One, for some proper nouns there are different Persian pronunciations (e.g. in p. 40 « و » چاپمن چپمن« » for Chapman; and in p. 293 « دان«و » داون » for Donne. A more vigorous copyediting would have reduced typographical errors like “sonett” instead of “sonetto” (34); and «باربينگ» instead of «30) «بربيج). The translation also fails to notice multiple meanings in some words and phrases including “princes” (170), l.2; “black lines” in p.186, l.13; and “O Cunning Love” in p.356, l.13). Some mythological references are also missed (e. g. p. 98, l.2 “Devouring Time” refers to the myth of Coronus; and p.162, l.8 “winged speed” refers to the myth of Pegasus). Five, according to dictionaries of quotations some lines and phrases from Shakespeare’s Sonnets have passed into the common stock of English proverbial expression and cliché. Unfortunately, this part is totally missed in the present book. Despite these criticisms, Tabibzadeh should be complimented for offering this charming translation, together with his comprehensive analysis of the Sonnets. 
work_3ejmeuhvd5ffrasw7ui7em4fuu	----	The Quest for Transitional Justice in Afghanistan: Exploring the Untapped Potential of Customary Justice JOURNAL FÜR ENTWICKLUNGSPOLITIK herausgegeben vom Mattersburger Kreis für Entwicklungspolitik an den österreichischen Universitäten vol. XXVII 3–2011 Beyond Transitional Justice Schwerpunktredaktion: Stefan Khittel Inhaltsverzeichnis 4 Stefan Khittel, Jan Pospisil Beyond Transitional Justice? 21 Sandra Rubli Knowing the Truth – What For? The Contested Politics of Transitional Justice in Burundi 43 Susanne Schmeidl The Quest for Transitional Justice in Afghanistan: Exploring the Untapped Potential of Customary Justice 64 Katja Seidel Practising Justice in Argentina: Social Condemnation, Legal Punishment, and the Local Articulations of Genocide 88 Christian Wlaschütz Transitional Justice in Colombia: Does it Contribute to Reconciliation? 109 Book Review 111 Editor of the Special Issue and Authors 114 Impressum The Quest for Transitional Justice in Afghanistan Journal für Entwicklungspolitik XXVII 3-2011, S. 43-63 SUSANNE SCHMEIDL The Quest for Transitional Justice in Afghanistan: Exploring the Untapped Potential of Customary Justice1 1. Introduction The quest for peace in Afghanistan has been a long one. The country has endured several cycles of war over the past 30 plus years. The most recent attempt at building peace started in 2001, with the now some- what infamous ‘Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions’ (Bonn Agreement). Today, nearly 10 years later, security is still elusive and it seems that Afghanistan is further away from finding peace than it was a decade ago. The Taliban has re-emerged with new strength, backed by foreign sponsor nations and benefiting from a weak and corrupt Afghan government. They are fighting a government that has lost legitimacy, because, amongst other reasons, it absorbed many jihadi personalities whose inability to agree on power sharing after the defeat of the Commu- nist government in 1992 gave rise to the first Taliban movement. What has been falling by the wayside in all these discussions about peace is the issue of reconciliation and justice. While “[t]he UN mission in Afghanistan had from the beginning been mandated to ‘promote national reconciliation and rapprochement throughout the country’ […] the Bonn conference, which was structured as a meeting of victors and set the framework for the transition period, made this role difficult” (Suhrke et al. 2009: 3). The fact that the Taliban, believed to be defeated at that time, were not party to the Bonn peace talks emphasized, even at this stage, a lack of focus on reconciliation. Backed by international supporters, the Afghan government has continued to argue that peace is more important than justice, and that dealing with past crimes and  Susanne Schmeidl those who committed them would only damage the fragile and fledgling new state. For many Afghans, history is repeating itself and there are questions as to whether the new Afghanistan Peace and Reintegration Program (APRP) will indeed be able to bring about reconciliation and peace. Until now, all government programmes on peace and reintegration – most importantly the 2007 Amnesty Bill passed by Parliament for those involved in past wars (Suhrke et al. 2009), as well as discussions about the implementation of the APRP – have implied a focus on amnesty over justice, emphasizing job creation and development projects as a way to reconcile fighters, while ignoring existing grievances, both amongst communities and some insur- gents. How can the Afghan people trust that their government is genuine in its interest in peace and reconciliation if it has once before firmly closed the door on justice for jihadi commanders, arguing that the government tent was big enough to accommodate everybody,2 regardless of their past human rights records (Wilder/Lister 2007)? The question remains this: if the Afghan government and its international supporters are unable to achieve transitional justice at a more national level, why there has been such little exploration of tapping into bottom-up approaches such as using customary justice providers to achieve some ‘dealing with the past’ at the grass-roots level? Even though, in principle, the APRP programme speaks of negotiations and addressing grievances at the community level as a first step to peace and reintegration, it remains unclear how this is to be done. Building on calls by The Liaison Office (2011a), this article explores the possibility of using customary justice mechanisms as a form of grievance resolution in order to bring peace at least at village/community level, with an effective reintegration of some medium and lower-level commanders as well as fighters. It would also lay the foundations of a bottom-up reconciliation process until political will at the national level is strong enough to develop a more formal mechanism of transitional justice. This would at a minimum address some of the calls of Afghan citizens, as expressed by one who attended a ‘ jirga for the victims of wars’ on 9 May 2010: “I want to know why they did what they did and I need them to at least admit it and apologise to the people” (Frogh 2010a). Much like Truth and Reconciliation Commissions undertaken in South Africa, working The Quest for Transitional Justice in Afghanistan with customary mechanisms, which emphasize restorative justice, would achieve some form of accountability for past crimes, even if punishment in the western sense is not forthcoming. 2. The failure of transitional justice in Afghanistan It has been argued that, in order to “substantively address the past, political will needs to be developed and political institutions will need to be involved” (Winterbotham 2010: 20). The Afghan government, however, has quite a poor track record in this regard. Despite extensive consultations by the Afghanistan Independent Human Rights Commission (AIHRC) in 2004, which found a “rich understanding of and strong desire for justice among the people for both past and current crimes” (AIHRC 2005: 41), the Afghan Government has failed to tap into such popular support for transitional justice, succumbing instead to the pressures of those within their ranks that wanted amnesty for crimes committed. While a National Action Plan for Peace, Reconciliation and Justice in Afghanistan was developed in 2005, and also included in the 2006 Afghanistan Compact and the 2008 Afghanistan National Development Strategy (ANDS), it was never implemented. “President Karzai subsequently refused a request from the Afghanistan Independent Human Rights Commission (AIHRC) and civil society groups to extend its deadline” when it expired in March 2009 (Winterbotham 2010: 18). This failure to address the legacy of impunity in Afghanistan is also visible in the rather superficial programmes to date attempting to reintegrate fighters of the past Afghan wars. In the beginning, substantial funds were poured into two programmes – Disarmament, Demobilisation and Reintegration (DDR) and Disbandment of Illegal Armed Groups (DIAG) – both implemented through the Afghan New Beginnings Program (ANBP), which focussed exclusively on mujahideen fighters and not Taliban. While high-ranking commanders were allowed to enter the political arena early on, due to their predominance at the Bonn talks and subsequent support from the Afghan President, lower level fighters were not always successfully reintegrated into Afghan society. Some even argue that the recent proliferation of community  Susanne Schmeidl militias, such as in Afghanistan’s North, is ample evidence of the failure of DDR and DIAG and the fact that many former jihadi commanders simply lacked prospects in a peaceful Afghanistan and so once again took up arms for personal gain (Schmeidl/Miszak 2011). The first national programme focussing on reintegrating Taliban fighters, the Proceay-e Tahkeem-e Solha (PTS), or National Commission for Peace and Reconciliation, was established in 2005 (Suhrke et al. 2009; Waldman 2010). The programme, however, was immediately subject to wide criticism, such as that it failed to provide guarantees, that it was open to being subverted by local strongmen, that it did not provide for community involvement and, above all, that it failed to bring in genuine Taliban fighters, or at least not high ranking ones (Suhrke et al. 2009; Waldman 2010; The Liaison Office 2010b). The proposition of ‘The National Stability and Reconciliation Law’ put forth by a coalition of powerful warlords and their supporters in 2007 to Parliament in order to prevent the prosecution of individuals respon- sible for large-scale human rights abuses in the preceding decades further underscored the push for amnesty and impunity over justice. When Afghan President Hamid Karzai quietly signed this ‘Amnesty Law’ in 2010, after repeated promises that he would not support it, he finally slammed the transitional justice door firmly shut by stating that “all those who were engaged in armed conflict before the formation of the Interim Administration in Afghanistan in December 2001 shall ‘enjoy all their legal rights and shall not be prosecuted’” (Human Rights Watch 2010). Enter the new Afghanistan Peace and Reintegration Program (APRP), trying to offer a way back into society for those Taliban fighters who have tired of war or no longer see fighting as way of achieving their goals. While the programme does speak of “good governance and legitimate grievance reso- lution with assistance to subnational formal and informal governance struc- tures to promote peace, reconciliation and manage reintegration” (Islamic Republic of Afghanistan 2010: 4), the Minister of Education, Farooq Wardak “told a gathering of civil society representatives that ‘justice’ and ‘human rights’ were not on the agenda and would not be discussed” (Mojumdar 2010). Furthermore, at the 2010 Peace Jirga “[t]here was no mention of the war crimes during the civil war, nor the injustices and violence inflicted on Afghan nation in the past nine years” (Frogh 2010b: 8). The Quest for Transitional Justice in Afghanistan In light of the above, Afghan communities have developed considerable scepticism about government-led top-down reconciliation attempts, and particularly those that put government authorities in charge of reconciliation, thus dictating who would spearhead programmes (Theros/Kaldor 2011: 31). The selection of those sitting on the High Peace Council (HPC) and the Provincial Peace Committees (PPCs) that have been established in 28 of Afghanistan’s 35 provinces (Afghan Peace and Reconciliation Program 2011) only re-emphasizes a tendency to put in charge those who likely benefit most from the current status quo and continued conflict (Nixon 2011). It also begs the question as to why Taliban fighters should be brought to justice if their mujahideen counter-parts were able to get away with the crimes they committed, including those against the very Taliban they are now trying to reintegrate. Indeed, the programme itself does not speak of justice, but only of grievance resolution. With national processes in question and impunity continuing to prevail, the calls to tackle transitional justice and reconciliation from the bottom-up, with communities settling their grievances first and engaging government at a later stage until “we can move up to national discussions”, are growing (Theros/Kaldor 2011: 31; The Liaison Office 2011a). Pressured by civil society and international lobbying, the APRP has now recognized the need to “[m] obilize civil society organizations to facilitate customary justice providers to support restorative justice as a mechanism to reconcile insurgents into communities” (Afghanistan Peace And Reintegration Program 2011: 9). That being said, the same document (APRP) also highlighted the need to fine-tune the terms of interaction between the government and customary justice systems and develop a more specific action plan. Drawing extensively on the previous work of The Liaison Office, this paper suggests the use of restorative customary mechanisms, focussing on restorative justice as a way to initiate such a grassroots process of transitional justice, even if these bodies, at first, only deal with relatively minor offenses and are unable to address more massive human rights violations and war crimes (e.g., a larger number of killings). It is worth emphasizing that reconciliation in many ways “harmonizes with Afghan traditions that stress pragmatic bargaining and flexible alliances” (Suhrke et al. 2009: 12).  Susanne Schmeidl 3. The need for some form of transitional justice and accountability As noted, there is a tendency by the Afghan government, and its interna- tional supporters, to focus reintegration programmes mostly on disarming fighters, compensating them for their ‘loss’ of weapons and trying to inte- grate them through development programmes. The notion of accounta- bility for crimes committed is either intentionally or unintentionally over- looked. Assuming that a majority join the Taliban because of a lack of jobs or out of poverty is, however, fundamentally flawed. The new Taliban insurgency is more diverse than the first movement in the 1990s (Schmeidl/ Miszak 2011). “Afghans clearly differentiate between Taliban with a political or ideological objective, often accused of being externally steered and funded, and mid- and low-level commanders and foot soldiers who join and support the Taliban for other reasons” (The Liaison Office 2010a: 3). There are, for example, ‘political opportunists’, such as former muja- hideen commanders or local strongmen that hope to gain political clout through joining the insurgency, and/or attempt to gain advantages in local resource conflicts. Communities may need the political backing of government officials in order to deal with strongmen, as some may very well be ‘spoilers of peace’ that benefit from the status quo on which their supremacy rests and are thus unlikely to willingly address the grievances that are driving some of the insurgency. Then there are ‘economic opportunists’ and criminal elements (e.g., drug and weapons dealers) that find it opportune to hide within the Taliban. Some of these elements cannot be reintegrated without addressing their past actions; otherwise they might disturb the peace in communi- ties in the future. In particular, criminal elements (Taliban-e duzd or thief Taliban; van Bijlert 2009: 160) need to be punished in some form, as more often than not the Taliban itself cleanses its ranks of these individuals once they have gained control in an area. Especially problematic are those Taliban that have political (because they were sidelined from political processes and government positions) or justice grievances, especially if they suffered past injustice at the hands of government officials or strongmen linked to the government. Communities The Quest for Transitional Justice in Afghanistan will be hard-pressed to address their grievances without the support of the Afghan government. Reintegration might be impossible, without some form or admittance and apology, if the local process is led by the very government officials that have committed rights violations. Here, a lengthier process of dealing with the past (especially injustices) is necessary. In light of the above, “[r]eintegration needs to be understood as a process rather than a one-time event”, which involves an understanding of the grievances that have led an individual (or community) to join the insurgency and the conditions that are needed to bring them back to peace (The Liaison Office 2011a: 2). It is here that customary justice may be of assistance. 4. Customary mechanisms and transitional justice Customary law (rawaj) in Afghanistan is a rather complex set of rules and regulations based on group norms and accepted community practices that are rarely codified and tend to differ between communities and over time (Wily 2003; Wardak 2004).3 It rests largely on the oral history of those using it (spin giri/rishsafed or white-bearded elders) in each community. Though customary justice seems a potent tool for reconciliation, due to its focus on restorative justice rather than retributive justice, its use for transitional justice has been largely left unexplored. While the Afghan government has acknowledged the need to engage with customary structures (Islamic Republic of Afghanistan 2008), and elders have offered their services to the state, the pending ‘Draft Law on Dispute Resolution Shuras and Jirgas’ does little to utilize the strength of customary justice providers and more to control something the state feels threatened by. There are further concerns by both women and human rights advocates about the violation of women’s rights under customary laws and about the fact that customary justice lacks alignment with national and international law (Barfield et al. 2006). There is also the occasional critique – not so much in the international community as from some government officials – of customary justice’s lack of alignment with sharia (The Liaison Office 2011b). This section first outlines the elements of customary justice that are beneficial for transitional justice purposes, using the example of the Pash- tunwali of the Pashtun ethnic group (Glatzer 1998; Steul 1981), while also  Susanne Schmeidl highlighting the areas of traditional justice practice that need some refine- ment in order to meet the needs of a genuine reconciliation and transitional justice process. 4.1 The benefits of customary law and its institutions for transitional justice First, customary justice institutions have shown considerable persist- ence and accessibility. While formal state law collapsed during the Afghan wars, customary justice has shown remarkable resilience, even in the light of internal and external challenges from various actors, including the Taliban. Even today, after extensive international assistance has been poured into the formal justice system while relatively little attention and funding was paid to the informal system, the latter still handles the vast majority (an estimated 80 to 90 per cent) of all disputes in areas not controlled by the Taliban (Barfield et al. 2006; The Asia Foundation 2010; Wardak 2004). In Afghanistan’s rich and layered legal history, formal state law has always co-existed with religious (shari’a) and customary law (Barfield et al. 2006). As the Afghan State, and with it the formal court system, never fully reached beyond urban areas (and still does not), it, in many ways, has been irrelevant for the rural majority (Wardak 2004; Wimmer/Schetter 2002). Traditional customary institutions, in contrast, are not only consid- ered more accessible, but also more swift in dispensing justice (Schmeidl 2011). Many government officials (e.g., governors and chiefs of police), including the independent department of Huqooq (rights) of the Ministry of Justice, which is tasked with helping to resolve civil disputes outside the courts, frequently refer disputants to customary resolution mechanisms, with the reference to the shari’a principle of sulh (peace; Barfield et al. 2006: 19; The Liaison Office 2009a, 2011b). An annual survey by The Asia Foundation (2010), supporting more qualitative findings by other sources (The Liaison Office 2009a, 2009b), concluded: “More than four-fifths (86) of respondents agree that the local customary mechanisms of jirga/shura [see Box 1] are accessible. Around three quarters agree that local jirgas/shuras are fair and trusted (73) and more than two-thirds agree that they follow local norms and values (70), are effective at delivering justice (69) and resolve cases promptly (66)” The Quest for Transitional Justice in Afghanistan (The Asia Foundation 2010: 132). Disruptions caused by the Afghan wars have started to reduce the number of jirgas, with more and more disputes being settled by shuras or individual tribal or religious figures. Customary justice bodies A jirga is an ad hoc and temporary decision-making mechanism4 chiefly focussing on resolving communal disputes. The form and composition of a jirga depends on the dispute dealt with, but by and large includes tribal elders, community notables and sometimes religious figures and, since the Afghan wars, also commanders (Jones-Pauly/ Nojumi 2004). Once a jirga decision or ruling (prikra) is reached, it is binding for the entire community and the jirga is dissolved (Wardak 2004: 326). Before the proceedings begin, all parties involved must agree on which version of tribal laws (narkh) will be used in the mediation or resolution process. This may even include elements of sharia, which is increasingly invoked in the south. A shura is a more permanent local council that was introduced during the Afghan wars as a way for commanders to influence community deci- sions (Barfield et al. 2006). Today, shuras have become semi-formal, as the government has created district and provincial shuras under various programmes, such as the Afghan Social Outreach Programme (ASOP) of the Independent Directorate for Local Governance (IDLG). There are also ulema shuras, councils of religious scholars, which are linked to the Ministry of Hajj and Religious Affairs. More recently, non-govern- mental organizations, such as The Liaison Office, and USAID contrac- tors (USAID 2011) have also set up shuras working on alternative conflict resolution using customary law elements integrated with sharia and stat- utory law, the latter promoted through training. Shuras also mediate disputes (mostly property, family and business but also a sizeable criminal caseload), similarly disputing parties can also approach individual elders (spin giri) or religious figures to help them settle a dispute.  Susanne Schmeidl Secondly, customary law focuses on restorative and not retributive justice. As with any community rights approach the emphasis is less on punishing individuals than restoring harmony and peace in communities (Barfield et al. 2006). Retributive justice here is secondary, as most customary justice providers lack the enforcement elements of formal justice (e.g., police and jails). Instead, the mechanisms and rulings emphasize the accountability of the offender while also giving him a way back into the community (Mona- ghan 2008). While nobody goes to jail, however, there is still ‘punishment’. Wrongdoers are ‘sentenced’ for crimes committed and have to ask for forgiveness from the family of the victim (Wardak 2004 provides a detailed description of the process of asking for and granting forgiveness, which involves multiple family and community members, both men and women). In addition, customary law stipulates clear compensation (or blood money) to be paid for crimes committed and occasionally also the death penalty for severe crimes (Rzehak 2011; International Legal Foundation 2004). However, how and what form of compensation is paid will likely need some more improvement in order to comply to International Human Rights Laws. A much-criticized practise under Pashtunwali for example, is the exchange of women (baad ) as a form of compensation, which violates individual rights. This is often practised, however, in the absence of other valuables, as non-compensation can lead to a blood feud between communities, hence provoking conflict escalation and (further) bloodshed.5 With increasing prosperity in communities, however, elders are using this practice less today than in the past (USAID 2011). 4.2 Limitations of customary justice mechanisms for transitional justice Despite some clear benefits, customary mechanisms should not be engaged uncritically. Their limitations vis-à-vis reconciliation need to be clearly understood and addressed, in order to ensure that they do not fail due to being overburdened. The effectiveness of the informal system rests on community cohesion and the sharing of common values and attitudes, which tend to disinte- grate when communities are fragmented, as has happened throughout the years of the Afghan wars and also under the current Karzai administra- tion. There is evidence that strong individuals can and will “subvert the The Quest for Transitional Justice in Afghanistan principles of equity upon which the [customary justice] system relies for its popular legitimacy” (Barfield et al. 2006: 3), with jirga mediators no longer functioning independently, but rather as puppets of strongmen, for either patronage or financial interests (The Liaison Office 2008). Thus, bringing to justice strongmen, whether former mujahideen or Taliban commanders, may be difficult without the backing of the Afghan State and its interna- tional supporters. As a result, a customary system may be more effective in dealing with reintegrating foot soldiers than higher level individuals. Secondly, as each tribe has its own version of Pashtunwali, communi- ty-based customary mechanisms are already hard pressed for addressing inter-tribal, little alone inter-ethnic or inter-sectarian grievances, as well as crimes committed far away from the community where an ex-com- batant comes from, and so wishes to reintegrate into (Barfield et al. 2006). While possible in principle, the need for a greater jirga would be given, with elders from both communities who are well versed in the specific narkh of their tribe in attendance. As the Taliban is aware of the limi- tations of ‘customary jurisdiction,’ they often send fighters from one community further away for battle, with ‘local’ Taliban taking over once an area has been taken control of. Thus, customary justice may only be able to deal with such local Taliban, who may also have only committed lesser crimes. Thirdly, while the customary system may be considered, on the whole, as being less corrupt than the formal system, corruption and bribery have also made inroads into the jirga system (even if they are less prevalent than among state judges). While in the past tribal notables saw resolving conflicts as a community service, in recent years tijaraati elders (commercial elders) have set up shop in district centres rendering their services purely for financial benefit (The Liaison Office 2009a). Furthermore, in a society where hospi- tality is particularly valued and seen as a sign of grandeur, it seems impor- tant that a local customary mechanism tasked with reconciliation involves offering food to those in attendance, as such gestures of generosity can create trust, even among the most difficult and hardened conflict parties, and hence set the stage for an amicable solution (The Liaison Office 2009b: 12-13). Thus, there would be a need to provide support for customary mechanisms to offer their services free of charge. This is only possible through some form of external or government funding, as can be provided via the APRP.  Susanne Schmeidl Lastly, and possibly most importantly, customary mechanisms in general, and Pashtunwali in particular, have also been much criticized for their exclusion of women. In theory, all Pashtun (men) have an equal status (especially in front of the law) and no one should possess more rights and power than others (Schmeidl/Karokhail 2009). This equality, however, is often limited to male elites of a certain age and standing and, by extension, is inapplicable to all women and younger males (Barfield et al. 2006). In addition to the law itself being applied unevenly, customary bodies (shura or jirgas) traditionally included neither women nor young men. 4.3 The way forward: the devil always lies in the details The above discussion shows that customary justice has some impor- tant reconciliatory elements, yet also holds clear limitations. For example, while customary institutions can address, and already have successfully addressed, community disputes, such as resource conflicts (The Asia Foundation 2010), they are limited to dealing with rights violations by strongmen and former government officials. This may limit reconciliatory processes to foot soldiers and low-level commanders at first and, addition- ally, to those ex-combatants who don’t see rights violations by government officials as their main grievances. While here customary mechanisms can clearly build a bridge between insurgent fighters and the Afghan Govern- ment, the latter needs to be willing to address ‘spoilers’ within their ranks and possibly to hand out compensation on their behalf. In addition, the Afghan Government needs to realize the indepen- dence of customary justice providers when dealing with reconciliation. Only then can they seen to be neutral when addressing grievances, rather than working on behalf of an already discredited government. This, however, is not to say that oversight should not exist. Thus, The Liaison Office has been exploring the establishment of an ‘Association for Customary Justice Providers’ (The Liaison Office 2011a) which could work on setting clear standards, both as to who is best skilled as well as to who can engineer solutions and ways of recon- ciliation that most community members will perceive as just, while also setting standards for jirga procedures more generally. Such an association, if independent, can then decide on whom to include (rather than relying on government appointees) and begin recording decisions made, which The Quest for Transitional Justice in Afghanistan would help to improve transparency. Rather than individual customary justice providers being controlled by the Afghan State, the association can help to supervise conflict resolution provided by its (accredited) members, much along the lines of a professional association (e.g. of mediators and arbitrators) ensuring the quality of service delivery. For this purpose TLO has also proposed the creation of ‘ jirga houses’ where this association could not only hold its meetings, store its records and reference documents, as well as undertaking additional capacity- building activities such as training courses on Afghan statutory and sharia law, but also on how to best work towards transitional justice. If such an association were to be initially supported by donors, the problem of payments and corruption would be irrelevant. The associa- tion, however, could also work on setting fee structures with the long- term aim of being self-funding; and it might also explore the possibility of establishing a legal aid fund for those unable to afford the services of association elders. While initially such an association can work to support village justice providers, it can also move to join district and provincial justice bodies, with the ultimate aim of being able to deal with inter-community prob- lems. There is also a possibility of linking up with different regional asso- ciations to jointly work on inter-ethnic and inter-sectarian reconciliation, albeit this being more a long-term goal as it would necessitate strong local associations in the first instance, and efforts of trust building between the different groups of justice providers. The Liaison Office tried such a first dialogue in March 2011 (The Liaison Office 2011c), which indicated a will- ingness to exchange experiences and expertise. The gender bias of customary justice providers may also not be as insurmountable as some may think. While women’s groups in particular criticize customary justice for this all-male ethos, some do see it also as a form of conflict resolution where women can be involved (The Liaison Office 2011d). In most cases the process of asking forgiveness involves not only individuals, but entire families, hence also women. Furthermore, participants at a recent workshop of The Liaison Office identified numerous historical mediation roles that women have played – both in Pashtun and non-Pashtun communities – that could be employed to bolster local reconciliation and grievance resolution efforts (The Liaison Office 2011d).  Susanne Schmeidl All of this could be built upon to give women a larger role, not just in the process of forgiveness, but also, for example, in deciding how much compensation needs to be paid in order to reintegrate an offender back into the community without violating the rights of women. There are already cases in Afghanistan’s Southeast of women sitting on shuras alongside men. Furthermore, many Community Development Councils of the National Solidarity Program (NSP) include women. These have been increasingly approached for conflict resolution, even though their main mandate is development. Under APRP, NSP is the recipient of some 50 Million US Dollars for the purpose of assisting communities with reintegrating ex-combatants. Here, following a correct sequence is of great importance. “Outside assistance should come only after communities have resolved underlying conflicts and grievances that facilitated insurgency recruitment, as opposed to the current practice which is to give aid first and hope that this will prompt stability” (The Liaison Office 2011a: 5). Furthermore, the association of customary justice providers can also be encouraged to include women mediators. Some elders have already expressed considerable enthusiasm for the idea, and have shown a willing- ness to pilot women’s subcommittees in local associations that could be consulted and brought into negotiations in order to ensure that women’s rights are not violated. First pilots of this will start in some provinces of Afghanistan’s Southeast where The Liaison Office has worked longest with elders, both on the setting of standards and the opening up of public spaces for women. The idea is to start small and then have elders share their experience of working with women with other elders in order to encourage them to include women in their associations elsewhere. The sharing of such concrete experiences of men who have worked successfully with women is often more powerful in bringing women into previously all-male bodies than top-down quotas, even though this is often lobbied for by women’s groups. When working with customary justice providers it is thus crucial to identify male allies in the attempt to promote the advancement of women. Traditional justice institutions have also made headway vis-à-vis the reduction of discriminatory practises such as baad. Exchanging women was largely intended as a way to provide valuable but non-monetary compensation. However, as communities have grown more prosperous, The Quest for Transitional Justice in Afghanistan they have access to other resources (e.g., property, valuables such as cars) that can be used to pay compensation. Furthermore, some communities have questioned the long-term durability of a settlement where women have been exchanged, especially given that the exchanged girls are often not treated well and sometimes even commit suicide. As a result, rather than lessening conflict, baad can actually lead to a renewed dispute. These concerns have led elders to abolish this practise in some parts of Afghanistan (Afghanistan Today 2011; USAID 2011). It is here again, that the association can help by working on a standard setting that disallows practices that violate women’s rights. Contrary to popular belief, elders do have the right to break new ground in customary law as long as this is met with general agreement by other customary justice providers and the communities they represent (Schmeidl 2011). Those elders consulted about the association have already noted the wish to align their practises with sharia and statutory law, especially the Afghan constitution. Hence, the seeds are sown for a change within which will very likely be more sustainable than imposing rules and regulations from above. 5. Conclusion This article has explored the advancement of reconciliation and transi- tional justice in Afghanistan through the utilisation of customary justice. Up to now, the issue of transitional justice and dealing with the past has been a taboo in Afghanistan, with the Afghan government preferring providing amnesty to past mujahideen fighters and warlords. Nevertheless, the argument of peace first and justice second has not helped the peace process ushered in by the 2001 Bonn Agreement. Instead, insecurity has been on the rise and the Taliban insurgency has partially reemerged as a result of poor governance and unaddressed grie vances. Espe- cially in the area of justice provision, the Taliban, with its sharia courts, has been clearly ‘out-governing’ the current Karzai admi nistration. While it may indeed be true that it is difficult to combat impunity at a national level, especially as long as past ‘offenders’ are part of govern- ment bodies (up to and including ministries, Parliament, and the High Peace Council), this should not preclude working at the grassroots level  Susanne Schmeidl with customary mechanisms that have survived the past years of war and political upheaval. In particular, their focus on restorative rather than retributive justice and community harmonization shows that such mechanisms can play a valuable role in furthering transitional justice at a community level. Taking the above limitations of customary justice into account, as well as the troubled history of state-civil society relations in Afghanistan (Schmeidl 2007, 2009), this article has discussed the possibility of devel- oping a process that can provide communities with the space to reinte- grate insurgent fighters, especially those that have committed crimes and/ or damaged ties to their families and community. For this, however, the limitations of customary justice providers – such as their representativeness, reach and qualifications – need to be understood and overcome. Here, the article has introduced the idea of a best practice association, which The Liaison Office is currently setting up in some parts of Afghanistan. Such an association can not only function as a tool for setting standards, but can also break new ground on aligning customary justice more with sharia and Afghan state law, including the constitution. As noted, such an asso- ciation can also work toward including women, and ensuring their rights are not violated. With the strength of customary justice institutions in rural and hard to reach areas, international actors are encouraged to overcome their reser- vations about customary justice and embrace a process that could bring peace to communities. Here, however, donor support to the Afghan Peace and Reintegration Program should be used wisely and funds (or projects) only provided to communities that have started to address reconciliation and justice issues first. Otherwise, the cycle of violence will be hard to break in Afghanistan. 1 I would like to thank my colleagues Nick Miszak and Peyton Cooke for useful input into this article. 2 The ‘“big tent” approach to government’ largely focused on the inclusion of strongmen, trying to bring them into government (rather than fighting them). Inadvertently though many in the end held far more power than a fledgling state could potentially manage, managing to spoil from within. The Quest for Transitional Justice in Afghanistan 3 It has been influenced by the turmoil of the Afghan wars and resulting displace- ments. Within the Pashtunwali, the customary law of the Pashtuns, for example, each tribe has their specific narkh (set of customary rules, comparable to a civil code), which only their own elders are allowed to interpret. 4 Jirga originates from jirg, ‘which means a wrestling ring’, or ‘circle’, but is com- monly used to refer to a gathering of people. There is a similar word in Turkish, which makes some scholars believe it originates from there (Wardak 2004: 326). 5 The alternative would be a blood feud that can easily escalate into a full-blown tribal conflict. Since other ethnic groups in Afghanistan do not use baad and it is in violation of the religious sharia law, Pashtuns have been under some pressure to abandon it (including by the Taliban), so it is an outcome that is justified on a cost-benefit basis. References Afghanistan Peace and Reintegration Program (2011): Conclusion Paper of APRP Review Conference. Kabul: Afghanistan Peace and Reintegration Program. Afghanistan Today (2011): The end of a tradition: Tribal elders in Khost have banned the use of girls as reparation for crimes and limited the bride-price. http://www.afghanistan-today.org/article/?id=105&lang=en, 15.5.2011. AIHRC (2005): A Call for Justice. Kabul: Afghan Independent Human Rights Commission. http://www.aihrc.org.af/Rep_29_Eng/rep29_1_05 call4justice. pdf, 10.5.2011. Barfield, Thomas/Nojumi, Neamat/Thier, J. Alexander (2006): The Clash of Two Goods: State and Non-State Dispute Resolution in Afghanistan. Washington, DC: United States Institute of Peace. ww.usip.org/ruleoflaw/projects/clash_ two_goods.pdf, 23.9.2008. Frogh, Wazhma (2010a): PEACE JIRGA BLOG 10: The Afghan Peace Jirga, where peace means politics. In: Afghanistan Analyst Network Blog, 4.6.2010. http:// www.aan-afghanistan.org/index.asp?id=802, 5.6.2010. Frogh, Wazhma (2010b): Will the Afghan government’s reintegration and reconcili- ation efforts bring peace to Afghanistan? In: Afghan Voices Series. Sydney: The Lowy Institute. Glatzer, Berndt (1998): Is Afghanistan on the brink of ethnic and tribal disintegra- tion? In: Maley, William (ed.): Fundamentalism Reborn? Afghanistan and the Taliban. Lahore: Vanguard Books, 167-182. Human Rights Watch (2010): Afghanistan: Repeal Amnesty Law. New York: Human Rights Watch News, 10.3.2010. http://www.hrw.org/en/ news/2010/03/10/afghanistan-repeal-amnesty-law. 1.4.2011. International Legal Foundation (2004): The Customary Laws of Afghanistan. Kabul: ILF Report.  Susanne Schmeidl Islamic Republic of Afghanistan (2008): Draft summary of ANDS Justice Sector Strategy. Kabul: Afghanistan National Development Strategy (ANDS). www. ands.gov.af/ands/jcmb/site/src/Meeting20and20Documents/seventh20 JCMB/files/IV.20ANDS20Documents/Justic20Sector20Strategy,20 Draft20Summary20-20English.pdf, 9.2.2009. Islamic Republic of Afghanistan (2010): Afghanistan Peace and Reintegration Program (APRP), Draft. Kabul: National Security Council, D&R-Commis- sion. Jones-Pauly, Catherine/Nojumi, Neamat (2004): Balancing relations between society and state: Legal steps towards national reconciliation and reconstruc- tion of Afghanistan. In: American Journal of Comparative Law 52 (4), 825-857. Mojumdar, Aunohita (2010): Afghans talk, Taliban shoot. Asia Times Online, 2.6.2010. http://www.atimes.com/atimes/South_Asia/LF03Df01.html, 5.5.2011. Monaghan, Rachel (2008): Community-based justice in Northern Ireland and South Africa. In: International Criminal Justice Review 18 (1), 83-105. Nixon, Hamish (2011): Achieving Durable Peace: Afghan Perspectives on a Peace Process. Oslo/Bergen/Washington, DC: Peace Research Institute Oslo (PRIO)/ Michelsen Institute and United Institute of Peace. Rzehak, Lutz (2011): Doing Pashto: Pashtunwali as the ideal of honourable behav- iour and tribal life among the Pashtuns. Kabul: Afghanistan Analysts Network. Schmeidl, Susanne (2007): Civil Society and State-Building in Afghanistan. In: Danspeckgruber, Wolfgang F./Finn, Robert (eds.): Building State and Security in Afghanistan. Princeton: Princeton University Press, 102-127. Schmeidl, Susanne (2009): Promoting Civil Society in Afghanistan – Decon- structing Some Myths. In: Danspeckgruber, Wolfgang (ed.): Petersberg Papers on Afghanistan and the Region. Princeton: Lichtenstein Institute on Self-De- termination, 68-74. Schmeidl, Susanne (2011): Engaging traditional justice mechanisms in Afghanistan: State-building opportunity or dangerous liaison? In: Mason, Whit (ed.): The Rule of Law in Afghanistan: Casualties of Myopia. Cambridge: Cambridge University Press. Schmeidl, Susanne/Karokhail, Masood (2009): The role of non-state actors in ‘community-based policing’ – an exploration of the arbakai (tribal police) in south-eastern Afghanistan. In: Contemporary Security Policy 30 (2), 318-342. Schmeidl, Susanne/Miszak, Nick (2011): For a Fistful of Dollars: The Selling out of Reconciliation and Reintegration in Afghanistan. In: Danspeckgruber, Wolf- gang (ed.): Working Toward Peace and Prosperity in Afghanistan. Liechten- stein Colloquium Report 5. Princeton: Lynne Rienner Publishers. Steul, Willy (1981): Pashtunwali: Ein Ehrenkodex und seine rechtliche Relevanz. Wiesbaden: Franz Steiner. Suhrke, Astri/Wimpelmann Chaudhary, Torunn/Hakimi, Aziz/Harpviken, Kris- tian Berg/ Sarwari, Akbar/Strand, Arne (2009): The Quest for Transitional Justice in Afghanistan Conciliatory approaches to the insurgency in Afghanistan: An overview. Bergen: Chr. Michelsen Institute (CMI Report R 2009: 1). The Asia Foundation (2010): Afghanistan in 2010. A Survey of the Afghan People. Kabul: The Asia Foundation. The Liaison Office (2008): Land Based Conflict In Afghanistan: The Case of Paktia. Kabul: The Liaison Office. The Liaison Office (2009a): Linkages between state and non-state justice systems in Eastern Afghanistan: Evidence from Jalalabad, Nangarhar and Ahmad Aba, Paktia. Kabul: The Liaison Office. The Liaison Office (2009b): An evaluation of the Khost Commission on Conflict Mediation (CCM). Kabul: The Liaison Office. The Liaison Office (2010a): Reintegrating the Insurgency Piece by Peace in Uruzgan Province: Aspects of a comprehensive peace building strategy. TLO Policy Brief 2/2010. Kabul: The Liaison Office. The Liaison Office (2010b): Reconciliation and Reintegration in Loya Paktia: Local Perspectives and Recommendations. TLO Policy Brief 3/2010. Kabul: The Liaison Office. The Liaison Office (2011a): How Civil Society can assist and enhance the APRP. Presentation at the APRP Review Conference, Kabul, Afghanistan 10-11 May 2011. Kabul: The Liaison Office. The Liaison Office (2011b), Formal and Informal Justice in Paktia and Nangarhar: A TLO Working Paper. Kabul/Washington, DC: The Liaison Office/The United States Institute of Peace. The Liaison Office (2011c): Empowering Traditional Justice – Creating a Best Prac- tices Association. Workshop report. Kabul: The Liaison Office. The Liaison Office (2011d): Moving Beyond Tokenism: The Role of Women in Peace and Reintegration in Afghanistan. Workshop report. Kabul: The Liaison Office. Theros, Marika/Kaldor, Mary (2011), Building Afghan Peace from the Ground Up. New York: The Century Foundation, Project on Afghanistan in Its Regional and Multilateral Dimensions. USAID (2011): Afghanistan Rule of Law Stabilization Program (Informal Compo- nent) Assessment. Kabul/Washington, DC: United States Agency for Interna- tional Development. van Bijlert, Martine (2009): Unruly Commanders and Violent Power Struggles: Taliban Networks in Uruzgan. In: Giustozzi, Antonio (ed.): Decoding the New Taliban: Insights from the Afghan Field. London/New York: Hurst & Company/Columbia University Press, 155-179. Waldman, Matt (2010): Golden Surrender? The Risks, Challenges, and Implications of Reintegration in Afghanistan. Kabul: Afghanistan Analysts Network. Wardak, Ali (2004): Building a post-war justice system in Afghanistan. In: Crime, Law & Social Change 41, 319-341.  Susanne Schmeidl Wilder, Andrew/Lister, Sarah (2007): State-building at the Subnational Level in Afghanistan: A Missed Opportunity. In: Danspeckgruber, Wolfgang/Finn, Robert (eds.): Building State and Security in Afghanistan. Princeton: Princeton University Press, 85-102. Wily, Liz Alden (2003): Land Rights in Crisis: Restoring Tenure Insecurity in Afghanistan. Kabul: Afghanistan Research and Evaluation Unit. Wimmer, Andreas/Schetter, Conrad (2002): Staatsbildung zuerst: Empfehlungen zum Wiederauf bau und zur Befriedung Afghanistans. Discussion Papers on Development Policy. Bonn: Zentrum für Entwicklungsforschung (ZEF). Winterbotham, Emily (2010): The State of Transitional Justice in Afghanistan. Policy Note Series. Kabul: Afghanistan Research and Evaluation Unit (AREU). Abstracts Based upon an analysis of the peace process in Afghanistan since 2011, the article argues that past top-down approaches have failed to achieve the twin goals of peace and justice. Thus, customary justice and its asso- ciated structures offers an alternative approach to furthering reconcilia- tion and addressing grievances, as well as to ensuring accountability for wrongs committed at the community level. Drawing from the work of The Liaison Office, the article highlights the advantages of customary justice institutions, but also cautions that their limitations (e.g., discrimination against women, an inability to reign in strongmen and address inter-ethnic conflicts) need to be addressed. The article concludes with the recommen- dation to establish a best practice association that can set standards for customary justice providers and guarantee the inclusion of women. Anhand einer Analyse des Friedensprozesses in Afghanistan seit 2011 zeigt dieser Artikel, dass Top-down-Ansätze in den letzten Jahren weder Frieden noch Gerechtigkeit geschaffen haben. Eine Alternative bietet das Gewohnheitsrecht (customary justice) und dessen Institutionen, um die Versöhnung weiter voranzutreiben und Ungerechtigkeiten, die auf Gemein- schaftsebene stattgefunden haben, aufzuarbeiten. Ausgehend von der Arbeit des „Liaison Office“ beleuchtet die Autorin die Vorteile von tradi- tionellen Rechtsverfahren, dabei müssen aber auch deren Einschränkungen The Quest for Transitional Justice in Afghanistan bedacht werden (zum Beispiel Benachteiligung von Frauen, eine Unfähig- keit Kriegsfürsten die Stirn zu bieten und inter-ethnische Konflikte zu bearbeiten). Der Artikel schließt mit dem Vorschlag, einen Zusammen- schluss von traditionellen Rechtsschlichtern zu gründen, der Standards für die Anwendung des Gewohnheitsrechts und die Einbeziehung der Frauen garantieren kann. Susanne Schmeidl 137 Boundary Street Clovelly, NSW 2031 Australia susanne@schmeidl.com 
work_3eupra2zgjh7bhz6m6hwu4bvwe	----	Correction to: Global Justice Index Report Vol.:(0123456789) Chinese Political Science Review https://doi.org/10.1007/s41111-020-00154-1 1 3 CO R R E C T I O N Correction to: Global Justice Index Report Yanfeng Gu1 · Xuan Qin1 · Zhongyuan Wang1 · Chunman Zhang1 · Sujian Guo1 © The Author(s) 2020 Correction to: Chinese Political Science Review https ://doi.org/10.1007/s4111 1-020-00148 -z The article “Global Justice Index Report”, written by Yanfeng Gu · Xuan Qin · Zhongyuan Wang · Chunman Zhang and Sujian Guo, was originally published elec- tronically on the publisher’s internet portal on 4th June 2020 without open access. With the author(s)’ decision to opt for Open Choice the copyright of the article changed on 27th July 2020 to © The Author(s) 2020 and the article is forthwith distributed under a Creative Commons Attribution 4.0 International License (https:// creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appro- priate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The original article has been corrected. The original article can be found online at https ://doi.org/10.1007/s4111 1-020-00148 -z. * Sujian Guo sguo@fudan.edu.cn 1 Fudan Institute for Advanced Study in Social Sciences, Fudan University, Shanghai, China http://orcid.org/0000-0002-2846-0303 https://doi.org/10.1007/s41111-020-00148-z http://crossmark.crossref.org/dialog/?doi=10.1007/s41111-020-00154-1&domain=pdf https://doi.org/10.1007/s41111-020-00148-z Correction to: Global Justice Index Report Correction to: Chinese Political Science Review https​:doi.org10.1007s4111​1-020-00148​-z 
work_3fsnqmsbsvgt7mlukeojkly5vu	----	Human Rights and Social Justice laws Article Human Rights and Social Justice Neil Hibbert Department of Political Studies, University of Saskatchewan, 9 Campus Dr, Saskatoon, SK S7N 5A5, Canada; neil.hibbert@usask.ca; Tel.: +1-(306)-966-8944 Academic Editor: Bernadette Rainey Received: 1 September 2016; Accepted: 13 June 2017; Published: 16 June 2017 Abstract: This paper addresses the question of the normative domains of human rights and social justice. Today, the dominant view in political philosophy is that they occupy largely distinct spheres, with social justice being a set of stronger egalitarian norms and human rights functioning as baseline protections against common threats posed by states to the general interests of persons subjected to them. Reflecting on current human rights practice and discourse, this paper develops a reconstructed normative model of social justice and human rights as nested membership norms in political societies. By connecting membership to processes of political legitimacy, human rights are conceptualized as increasingly functioning as the language of contesting and reforming barriers of exclusion to that status. This leads to an understanding of the possible content of human rights that is dynamic and relational, bringing it closer in line with the egalitarianism of social justice. Keywords: human rights; social justice; political legitimacy; membership 1. Introduction Domestic and international human rights documents and discourses are characterized by conceptual and normative links between the aims of human rights and social justice. As James Griffin observes, disapprovingly, the foundational document of the modern human rights movement, the Universal Declaration of Human Rights (UDHR), is characterized by a “whole scale inclusion of justice among human rights . . . (and) includes not only procedural justice, but also distributive justice and fairness” (Griffin 2008, p. 186). The UDHR’s preamble indeed states that human rights are the ‘foundation’ of justice ‘in the world’, and many of its articles include egalitarian aspirations across the full institutional range of modern political societies (UN General Assembly 1948). For example, in addition to articles covering procedural justice (e.g., article 10), UDHR article 7 establishes the human right to equal public protection against discrimination; article 21.2 states the right to ‘equal access to public service’; article 21.3 includes broad entitlements to democratic rights; article 23.2 contains the right to ‘equal pay for equal work’, with 23.3 adding the ‘right to just and favourable remuneration’; and, article 26 develops a range of educational and opportunity rights. The UDHR’s invocation of these aims is widely re-iterated in subsequent international and domestic human rights documents (e.g., the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities) as well as by a diverse range of actors in human rights advocacy groups and networks (Clapham 2007, pp. 160–62; Garcea and Hibbert 2011, pp. 53–56; Hucker 1997; Jetsckhe 1999, pp. 144–46). In quite a strong contrast, what can be considered the dominant philosophical view in contemporary liberal political philosophy is that human rights and social justice occupy largely distinct normative domains (Beitz 2009; Cohen 2010; Jones 2010; Nickel 2007; Rawls 1999b; Raz 2010; Risse 2012). On the dominant philosophical view, while overlapping in cases of constitutionally essential equal civil and political rights, social justice is theorized as requiring significantly greater distributive equality across a range of political and socioeconomic institutions than human rights. Laws 2017, 6, 7; doi:10.3390/laws6020007 www.mdpi.com/journal/laws http://www.mdpi.com/journal/laws http://www.mdpi.com http://dx.doi.org/10.3390/laws6020007 http://www.mdpi.com/journal/laws Laws 2017, 6, 7 2 of 16 The dominant view can therefore be understood as presenting a ‘discontinuous’ conception of the normative relationship between social justice and human rights. As Charles Jones frames it, while different conceptions of human rights will vary as to the “extent of justice commitments” they cover, the requirements of social justice include “further specifications on the range of legitimate inequality of basic goods (that) are compatible with universal rights protections” (Jones 2010, p. 133). The dominant philosophical view thus presents a type of human rights-plus conception of social justice: social justice includes human rights but contains a further conception of equality rights that are not human rights. The aim of this paper is to push back against the dominant, discontinuous, view of the relationship between the normative domains of human rights and social justice, and to outline a normative model of human rights that overlaps more fully with an egalitarian conception of social justice. This reformed normative model of human rights is ‘political’ in the sense of being based on a reflection on current human rights practice, understood to consist of both institutional and discursive elements (Beitz 2009, p. 8). The purpose of a normative model is to provide a ‘reconstructive account’ of the “norms and ideals that are implicit and play a structuring role in our practices” (Heath 2011, p. 28). Reflecting on current global and domestic human rights institutions and discourses suggests an ‘emergent’ and contested practice, marked by disagreement over the basic norms and values that ground the practice (Beitz 2009, pp. 8–9). Nevertheless, there is reason to hold that the normative dimensions of the development of human rights practice reflects a growing convergence on the dominant, egalitarian, philosophical understanding of the normativity of social justice. To account for this convergence, the goal of this paper is to outline an account of how social justice and human rights increasingly share normative space based on their grounding in the ideal of ‘membership’ in a political society, and both function at different levels of abstraction from political practice to protect against exclusions from that status. The discussion proceeds as follows: the first section presents a synthesized version of the dominant discontinuous philosophical view, which grounds human rights and social justice on distinct justificatory interests—the interest in common protections against standard associative threats and the interest in fair terms of inclusion in a relational status of political membership respectively. The next section presents the idea that reflection on the current human rights practice suggests that membership interests are a more appropriate justificatory grounds for capturing existing and deepening egalitarian elements of human rights, bringing them closer to the normativity of social justice. The third and fourth sections develop the idea of human rights and social justice as nested membership norms by exploring their respective roles in establishing and satisfying the conditions of political legitimacy. The final section defends this view against the objection that the distinctive aspect of human rights as international concern marks them off from many of the demands of social justice that are not coherently matters of international concern. 2. The Dominant Philosophical View of Human Rights and Social Justice Today, social justice in political philosophy is characterized as a strongly egalitarian norm. In Ronald Dworkin’s view, all plausible political philosophy is now, in an abstract moral way, egalitarian, such that theories of social justice rest on, and are evaluated by their correspondence to, the fundamental moral idea that people are equals, and as members of a political society are entitled to equal respect and consideration in the “design and administration of the political institutions that govern them” (Dworkin 1978, p. 189); see also Kymlicka on the idea that contemporary political philosophy has reached an ‘egalitarian plateau’ (Kymlicka 2002, p. 4). This, in turn, grounds significant requirements of distributive equality in egalitarian theories of social justice, such as, for example, John Rawls’ requirement of equal distributions of primary goods. In contrast, human rights, on the dominant view, while also resting on an abstract principle of equality, when worked out institutionally, are thought to be consistent with greater levels of inequality than social justice in the distribution of benefits and burdens in a political society. Instead of requiring interpersonal comparisons of relative Laws 2017, 6, 7 3 of 16 standing between members, human rights are theorized as establishing non-comparative baselines of entitlements and protections. This distinction between the normative domains of social justice and human rights differs somewhat from another prominent grounds for the discontinuous view. Often, social justice is distinguished from human rights along the lines of the distinction between political and civil rights, on the one hand, and socioeconomic rights on the other, whereby social justice includes the latter while human rights do not (O’Neill 2005). The understanding of the discontinuous view as presented in this paper, however, proceeds in a somewhat different direction. Under the dominant philosophical view, social justice and human rights both cover the full range of benefits and burdens that are involved in modern political societies, and so the distinction between civil/political and socioeconomic entitlements and exclusions is not the key dimension of the distinction. The discontinuity, rather, concerns the underpinning justifications, and their distributive requirements, of human rights and social justice across these areas of political practice. While covering the same areas of political and socioeconomic life, human rights, on the dominant philosophical view, require much less by way of an egalitarian distribution to be satisfied, than do standard theories of distributive justice. A prominent theoretical ground for the dominant, discontinuous view of human rights and social justice is a distinction between their underpinning justificatory interests, or what Charles Beitz calls their “justifying purposes” (Beitz 2009, pp. 128–29). Human rights and the further rights of social justice, he argues, “are grounded in interests of different degrees of urgency and therefore exert different weights” on the distributive requirements of political and socioeconomic institutions (Beitz 2009, p. 142). What types of justificatory interests, then, does the dominant philosophical view respectively rest human rights and social justice upon? One notable feature of the dominant philosophical view of human rights is that it treats human rights as distinctly political, which stands in contrast to a previous wave of theorizing in which human rights were treated as a euphemism for the older idea of natural rights (Cranston 1973; Finnis 2011). Natural rights are rights that are held by persons in all times and places, and concern basic interests of personhood that are stable across different political contexts. A political conception of human rights, in contrast, is context-dependent, and presumes specific interests that are only intelligible with reference to particular institutional practices (Buchanan 2005, pp. 73–74). While a theory of rights grounded in nothing but our humanity is undoubtedly an important element of theorizing rights, the problem of reducing a conception of human rights to such a conception is that it is, as Joseph Raz puts it, “so removed from the practice of human rights as to be irrelevant to it” (Raz 2010, p. 322). A principal evaluative component of a political conception of human rights is therefore that it captures important elements of current human rights practice in an institutional context that approximates current modes of political organization. On the dominant philosophical view, the most important element of the context of current human rights practice is the fact that states are the primary institutional arrangement for governing people; as Beitz puts it, the “practice of human rights as it has developed so far can only be understood as a revisionist appurtenance of a world of independent, territorial states” (Jones 2010, p. 128). Human rights are, on this conception, general norms for regulating the functioning of states as it concerns the general associative interests of those subjected to them. A further element of practice that limits the content of human rights, in the dominant view, is that, while standards for domestic states, human rights are also matters of international concern. This has the effect of universalizing the content of human rights across a diverse range of domestic societies organized by states by setting up shared standards for the international community for concern and action regarding a state’s treatment of its own members, and imposing common constraints on “the permissible exercise of the prerogatives traditionally associated with the norm of sovereignty” (Jones 2010, p. 133). The ‘justifying purpose’ in the dominant philosophical approach to human rights is, then, establishing common protections against standard and predictable associative threats created by states. These include a range of protections against the vulnerabilities created by exposure to the coercive capacities of states Laws 2017, 6, 7 4 of 16 and egregious forms of socioeconomic vulnerability the state can generate or neglect. The dominant view of human rights is sensitive to the current context of political practice, while maintaining the normative dimension of universality inherited from the natural rights tradition, by linking the content of human rights to the shared interests of persons subjected to states in common protections against standard and predictable associative threats. As mentioned, the standard view of social justice, in contrast, is grounded in the interest of equal respect and consideration of all interests relevant to living in a political society that fall under the purview of governing institutions, extending well beyond the interest in protections against general associative threats that grounds human rights. Treating persons with equal respect will involve making inter-personal comparisons between them to assess relative levels of advantage and disadvantage. This sort of justificatory interest can be understood as a membership interest, which is a deeper and more inclusive norm than that of common protections against predictable associative threats. As Joshua Cohen characterizes the idea of membership, “to be treated as a member is to have one’s interests given due consideration, both in the processes of authoritative decision-making, and in the content of those decisions” (Cohen 2010, p. 328). The idea of membership helps distinguish a voluntaristic associative system of legitimate cooperation from one of imposed domination, including a range of potential scenarios which may have sufficient protections against associative vulnerabilities to satisfy the dominant view of human rights. The ideal of membership, for example, is at the core of John Rawls’ distinction between domination as “merely socially coordinated activity . . . by orders issued by some central authority” and a genuinely legitimate system of social cooperation that is “guided by publicly recognized rules and procedures that those cooperating accept and regard as properly regulating their conduct” (Rawls 1993, p. 16). Because membership is inclusive, rather than a common baseline standard of treatment, it involves comparative assessments with the condition of other members and leads to egalitarian changes to barriers of exclusion. It permits variation in the demands of social justice across political societies based on different patterns of social exclusion that constitute membership interests in particular societies. A conception of social justice grounded on membership interests is therefore relational and dynamic in its content and institutional requirements. This stands in contrast to an absolute and universal conception of human rights that rests on the common justificatory interest in protections against standard associative threats. 3. Human Rights as Membership Norms Are common protections against standard associative threats the most appropriate justificatory interest on which to ground a political conception of human rights? There is reason to think not. Reflecting on current human rights practice reveals important egalitarian normative elements that suggest that interests related to inclusion in the status of membership, and the goal of legitimate social cooperation, better captures these dimensions. If so, this brings human rights much closer to the normative domain of social justice than under the dominant philosophical view. Of course the relevant point of evaluation for all theories of human rights is not necessarily providing an adequate “critical reconstruction of human rights as they are in the legal doctrine and practice of human rights” (Buchanan 2010, p. 680). This is, however, a crucial consideration in the case of political conceptions, to which the dominant philosophical view belongs, that presume existing institutional arrangements as the context of human rights, and aim to reconstruct a normative model of current human rights practice. Reflecting on current human rights practices to make salient their underlying normative logic reveals significant, and deepening, levels of egalitarianism that stretch beyond the conception of human rights as common protections against standard associative threats. These include, but are not limited to, formal equality before the law, participation rights, opportunity-oriented socioeconomic entitlements and anti-discrimination and employment equity rights (Rawls 1993; Garcea and Hibbert 2011; Hucker 1997). These kinds of human rights protections are comparative and relational, suggesting an inclusionary standard of membership, rather than a baseline standard of common protections. Laws 2017, 6, 7 5 of 16 If this is so, how might the egalitarian and relational elements of current human rights practice be normatively accounted for? One possibility is Allen Buchanan’s compelling egalitarian theory of human rights that departs from the non-egalitarian nature of the dominant model. Buchanan argues that there are seven distinct egalitarian elements of current human rights practice that are inconsistent with the standard protections against associative threats normative model (the ‘inclusive assumption’, ‘robust equality before the law’, ‘positive rights’, ‘equal political participation rights’, ‘anti-discrimination rights’, comparative assessments of an ‘adequate standard of living’ and the ‘right to work’) (Buchanan 2010, p. 683). On Buchanan’s view the institutional and discursive practice of human rights have evolved away from standard protections against predictable associative threats and towards an inclusive and relational idea of equality. He argues that the “most secure and straightforward grounding” for the egalitarian elements of human rights “is the idea of equal status” (Buchanan 2010, p. 687). Buchanan’s idea of status equality is conceptually similar to the justificatory idea of membership discussed above, given the central ideas of inclusion, comparative assessments of well-being and relative assessments of rights protection. The justificatory ground of equal status reflects the idea that human rights involve interests related to protections against exclusion from a social notion of status that is intelligible as being recognized and treated as a full member of a political society, rather than a subject. While developing in the direction of membership norms, Buchanan goes on to argue, however, that human rights remain normatively distinct from social justice because status equality, while extending beyond common protections against standard threats, does not presuppose “an egalitarian distributive principle,” as is the case with social justice. The status equality of human rights is distinct from the distributive equality required by egalitarian theories of social justice, and securing status equality through human rights is “compatible with a wide range of differences and with their social recognition in the form of material inequalities” (Buchanan 2010, p. 685). Equal status, on this conception, “constrains” material inequality without requiring the extent of distributive equality entailed by egalitarian theories of social justice. Buchanan holds that “a principle of equal distribution of resources or of well-being” ‘exceeds’ the protections needed for securing equal status through human rights (Buchanan 2010, p. 684). Buchanan therefore maintains the discontinuousness of the dominant philosophical view while incorporating egalitarian principles into his normative model of human rights based on the justificatory interest of status equality and its requirements of social inclusion and socially comparative assessments of ‘standards of living’. There is reason, however, to question the stability of this space between the status and distributive elements in an egalitarian concept of human rights. Equality of relational status entails fair terms of inclusion in both the material and socio-cultural life of a political association. As Will Kymlicka puts it, “one way to ensure that social relationships are egalitarian is to ensure that individuals have roughly equal shares of social resources” (Kymlicka 2002, p. 196). A similar connection between distributive and status equality is interestingly found in Rawls’ theory of justice. He argues that “perhaps the most important primary good is that of self-respect” (Rawls 1999a, p. 386). This entails elimination of barriers of exclusion to status equality, and is cashed out distributively as fair access to the “social bases of self-respect;” thus, a theory of justice that “gives more support to self-esteem than other principles is a strong reason . . . to adopt it” (Rawls 1999a, p. 386). Like in Kymlicka’s account, this links into robust distributive requirements of social justice because, according to Rawls, “our self-respect normally depends on the respect of others” and extending fair terms of inclusion to shared institutions is an expression of persons’ “respect for one another” (Rawls 1993, pp. 155–56). These at least plausible connections between status and distributive equality evoke Nancy Fraser ’s notion of a “false antithesis” between material inequalities and “recognitional” structures of “cultural domination . . . (and) social patterns of misrepresentation, interpretation and communication.” Much of social inequality, she argues, is “bivalent” and consists of complex intersections of “economic differentials and culturally constructed distinctions” (Fraser 1996, p. 7). While the notion of status is an abstract, recognitional, standing, it conditionally grounds concrete egalitarian distributive requirements. Indeed, if as Rawls Laws 2017, 6, 7 6 of 16 contends, the self-respect that comes from one’s status as a full member in a political community is “the most important primary good,” much of the materialist distributive requirements of social justice can be understood as grounded in that interest. The connections between status and distributive equality stabilize a conception of an overlapping normative domain of human rights and social justice as nested regulative principles for associative practices and institutions which function to protect against exclusions from status equality. The notion of nested principles here accounts for the fact that social justice and human rights function at different levels of abstraction from institutions. Social justice consists of structural principles that apply to the cumulative functioning of a political society over time as it affects the membership interests of those involved in it (Rawls 1999a, p. 6). Human rights, in contrast, function less deep in the structural background of a political society and apply more concretely in specific institutional settings. Take for example the idea of fair ‘equality of opportunity’ as a widely endorsed principle of social justice (Rawls 1999a, pp. 73–77). It is clearly linked to the idea of inclusion in the status of membership and is used to evaluate the way in which the institutions of a political society interactively function to shape persons’ prospects over time. A society is more or less just depending on how it structures the opportunities for political and socioeconomic participation held by its members. The principle of equality opportunity can be seen to ‘nest’ a host of subsequent human rights requirements as they pertain to the functioning of specific institutional settings as they feed back into the overall structure of opportunities, including: human rights in educational institutions (Ray and Tarrow 2014), societal and workplace discrimination oriented human rights (Gravel and Delpech 2008), human rights concerns regarding poverty alleviation (Vizard 2006), and ability and mobility oriented human rights. Human rights of these kinds work to address barriers of exclusion in particular institutional settings, while affecting the general condition of opportunity in a society. Generated human rights will be grounded in more concrete social identities and interests than the deeper, and necessarily more general, principles of social justice. By applying to more specified practices, they are also more easily, though not necessarily, translated into formal juridical and legislative entitlements. One notable example of this dynamic is the development in human rights protections of disabled persons as the primary mechanism of addressing unfair opportunity inequality based in disability. The development of human rights for disabled persons illustrates how the general concerns of social justice as regulative principles for a society’s major socioeconomic and political institutions ground more specified, though still rather abstract human rights conventions, which are subsequently incorporated at various levels of governance into legislative and legal reform. At the level of an egalitarian conception of social justice, mental and physical disabilities would be treated as unjust (i.e., morally arbitrary) barriers of exclusion—or denial of equal opportunities for inclusion—into the status of membership across a wide range of societal institutions. Corresponding to the normative relationship between human rights and social justice suggested in this discussion, increasingly human rights are treated as the primary political mechanism for addressing this general instance of injustice in the distribution of opportunities for disable persons to be full members of a political society. As in the case of previous iterations of the emergence of human rights practices, the human rights of disabled persons begins at the level of international conventions, with the Convention on the Rights of Persons with Disabilities (CRPD) coming into force into 2008 (Weller 2009). Reflecting the idea of membership protections, the CRPD adopts a ‘social model of disability’ that brings together at a high level the interconnected sources of the social exclusion and marginalization of persons with disabilities, articulating broad categories of rights, including non-discrimination equality, equality rights and rights associated with social participation. The articles of the CRPD begin by establishing disabled persons as appropriate subjects of rights, moves to addressing barriers of exclusion and ends with positive entitlement claims to aspects of active social participation. Following the enactment of the CRPD, and following the broad trend of twenty-first century human rights practice, instances of “translating abstract principles of human rights into the content of domestic law” began to occur (Weller 2009, p. 7). Thus, the CPRD is an effective example of the nested nature of the normativity Laws 2017, 6, 7 7 of 16 of social justice and human. Human rights are nested in general principles of social justice, like fair equality of opportunity, that are designed to regulate the overall institutional structure of a political society. Such principles are used to evaluate specific kinds of unjust opportunity inequality and generate human rights mechanisms that identify subjects of rights, and particular sources of exclusion. Moving from international convention to domestic legislation and jurisdiction, human rights norms are applied to concrete institutional dynamics and interactions. In the case of CPRD, we see abstract rights claims in international conventions eventually filter down to re-evaluations of legislative entitlements, including as fine-grained applications as reforming empowerments of health care providers and patients at the level of treatment delivery (Weller 2009). To wrap up this section, theorizing human rights as mechanism for protections against exclusion from political membership has two primary implications for their normative structure that bring them closer to the idea of social justice. The first is that human rights, conceptualized as membership norms, are comparative, rather than baseline standards of protection and inclusion. This is so because one’s status as a member depends on relational aspects of one’s relative standing to the procedural and substantive conditions of a political society that form the general expectations of membership in that society. The second implication is that human rights as membership norms are dynamic, and not necessarily standardized across societies because, as the general conditions of society evolve, the requirements of inclusion in that society similarly change. This stands in contrast to the less dynamic nature of common protections against standard associative threats that ground human rights in the dominant philosophical view. The following section considers how a normative model of human rights that is continuous with the egalitarianism of social justice fits in with what is widely seen as the principal political function of human rights as establishing and satisfying the conditions of political legitimacy. In so doing, it addresses a central claim of the discontinuous view that an egalitarian conception of human rights is incompatible with at basic aspect of human rights practice of establishing the normative requirements of the legitimacy of states. 4. Membership and Political Legitimacy The status of membership distinguishes between subjection to imposed political coordination and an ideal of voluntary social cooperation. While different kinds of systems of subjection can remain stable through the effective exercise of domination, without respect for membership, such societies can be said to lack normative political legitimacy. Developing the idea of membership, this section aims to show that an egalitarian normative model of human rights that shares normative space with social justice does not require abandoning the primary aspect of current human rights practice of establishing political legitimacy, though it does entail a particular conception of legitimacy. The function of securing political legitimacy is central to the ‘justifying purpose’ of human rights in the dominant approach, and a primary ground for discontinuity between the normative domains of human rights and social justice. The focus, however, is principally placed on international, recognitional, legitimacy. As Raz puts it, “while human rights are invoked in various contexts, and for a variety for purposes, the dominant trend in human rights practice is to take the fact that a right is a human right as a defeasibly sufficient ground for taking action against violators in the international arena, that is to take its violation as a reason for such action” (Raz 2010, p. 9; see also Rawls 1999b and Beitz 2009). This conception of the role of human rights in political legitimacy ties into other features of the dominant normative view. One is the universalism of the content of human rights required to establish a shared international standard for the “limits to state sovereignty” (Raz 2010). Another is the relative minimalism of the concept of human rights as common protections against standard associative threats, needed for both respecting the value of sovereignty itself and for respecting the value of toleration of diverse, though recognizably legitimate, forms of political arrangements. The final section of this paper will return to the issue of how the status of human rights Laws 2017, 6, 7 8 of 16 as matters of international concern may limit their egalitarianism; however, the focus for now will be on establishing the role of human rights in domestic processes of political legitimacy. All violations of legitimacy need not be understood as mapping onto the “limits to state sovereignty,” and as the trigger of interventionist action. International, recognitional, legitimacy therefore does not exhaust the role of human rights in political legitimacy, as it has internal dimensions that apply in the first instance to the interests, attitudes and behaviours of persons with respect to the institutional arrangements that govern them. Given this, the dominant philosophical view of human rights is not a satisfactory conception of the constraints and requirements on institutions that would constitute the interests of those governed by them, if they are to have their membership interests respected. Because of the possibility of different ways of organizing governing institutions, persons can reasonably expect terms of justification and forms of inclusion that go beyond maintaining common protections against standard threats created by political power, as conditions to accept as legitimate ‘the disciplines and burdens’ of membership. In current political practice, these deeper justificatory claims are increasingly made in the language of human rights, building up their egalitarian standing, and bringing them closer to the normativity of justice. It may be objected that the cost of a more egalitarian conception of human rights, nested in the requirements of social justice, is that it becomes an inappropriate standard of internal legitimacy as it will be too demanding to be a realistically achievable condition of political legitimacy. This concern informs, for instance, Cohen’s distinction between human rights as baseline membership norms of political legitimacy and social justice as a more maximalist ideal for social cooperation—“the rights that are required if individuals are to treated as members would be identical to the right that are required if the requirements imposed by law and other regulations are to genuine obligations . . . (and treating these rights as human rights is) . . . certainly more plausible than a theory of obligation that ties political obligation to justice” (Cohen 2010, p. 329). Thus, if human rights are to function as the condition of domestic legitimacy, their content needs to be limited to a feasible point for persons to accept and act on the types of obligations necessary for political stability. Against this ground for distinguishing between human rights and social justice is the possibility of a conception of legitimacy as principled support and stability that does not appeal to correlative moral obligations of compliance (Green 1988; Parekh 1993). Rather than producing stability through acquired obligations, an alternative, non-obligatory, conception of legitimacy includes a more diffuse range of attitudes and behaviours. On Charles Taylor’s view, “a society has legitimacy when members so understand and value it that they are willing to assume the disciplines and burdens which membership entails” (Taylor 1993, pp. 64–65). Political stability based on normative legitimacy is, then, “distinguishable from purely self-interest or instrumental behavior on the one hand, and from straightforward imposed or coerced rule on the other” (Hurrell 2005, p. 16). Legitimacy, on such a view, is not an ‘either-or’ scenario, but is an ongoing dynamic of contestation and the formation of pluralistic beliefs and commitments that signify acceptance or rejection of institutional arrangements and their regulative principles. Rawls presents a similar rendering of the concept in suggesting that legitimacy amounts to political stability “for the right reasons” (Rawls 1993, p. 391); that is, when members accept its proffered terms of justification, and support its institutions based on perceptions of generally sufficient satisfaction of these terms in its functioning. Human rights and social justice, operating at different levels of abstraction from political practice, can be seen to establish what Rawls calls a ‘range of legitimacy’ (Rawls 1993, p. 428). Certain types of inequalities and exclusions are necessarily ruled out of this range as baseline conditions of legitimation; it should not, however, be treated as static and leaves significant space for democratic deliberation and social choice as to the cooperative ends to be pursued and the appropriate regulative principles for the distribution of relevant cooperative burdens and benefits. Political legitimacy, of course, is a deeply contested concept, and this paper does not seek to argue in favour of a particular conception. The aim here is instead to consider how a particular, non-obligatory, conception of legitimacy creates theoretical space for an egalitarian normative model Laws 2017, 6, 7 9 of 16 of human rights. Thinking of legitimacy as a dynamic range of institutional requirements for the justified exercise of authority establishes political openings for deepened practices of human rights and social justice. Through contestation and demands for reform, previously tolerated forms of exclusionary barriers to membership can be ruled out of subsequent demarcations of the range of legitimacy. Human rights activism, iteration of human rights norms and consolidation of deepened institutionalized human rights protections have the effect of altering standards of legitimacy by, as Seyla Benhabib puts it, raising “the threshold of justification to which formerly exclusionary practices are now submitted” (Benhabib 2006, p. 60). Normative standards of legitimacy should therefore not be treated as fixed, as in the case that ties it to a conception of human rights as common protections against standard associative threats. The requirements of legitimacy are, rather, responsive to institutional formation and changing forms of political discourse and activism, and so, as Jeffrey Reiman argues, “we cannot take for granted that any existing formulation of (legitimacy’s) conditions is complete . . . a government must do more than merely keep within some identified set of conditions . . . (it) must be continually monitoring the conditions of its legitimacy and effectively correcting existing formulations of these conditions” (Reiman 1997, p. 127). With this dynamic understanding of political legitimacy, a key way in which equality emerges in the world is when the legitimacy of the exercise of political power is challenged by those subjected to it who oppose barriers of exclusion it establishes and perpetuates (Nagel 2005, pp. 146–47). Such demands are increasingly made in the language of human rights. In this sense, human rights are not merely a given set of formalized protections and immunities, but also function as the language of contestation and aspiration for deepened practices of inclusionary membership in the institutional arrangements that govern people. 5. Human Rights as Aspirational Building on the link between human rights as membership norms and iterative processes of the development of the standards of political legitimacy, this section further develops overlapping points of normativity between human rights and social justice in their functioning as principles of social aspiration in the contestation of power by individuals and groups. In this respect, human rights are not only existing protections against exclusions from the status of membership, but are also, in part, constitutive of expectations for further inclusion held in its name. It is suggested that human rights increasingly overlap with the language of citizenship rights in grounding inclusionary claims of justice in particular institutional settings. The discursive elements of human rights practice in which novel demands for social inclusion are made through the language of human rights, human rights function not just to meet the requirements of legitimacy, but also to define and reconfigure them moving forward. The aspirational quality of principles of social justice is relatively straightforward given their status as general principles (e.g., fair equality of opportunity) that function in the deep background of the institutional structure of a political society. Human rights, on the other hand, operating, as has been suggested, as specific manifestations of principles of social justice in particular settings as concrete claim rights are often theorized as ‘mandatory norms’ limited by the identification of specific duty-bearers, which often has the effect of limiting equality rights in socioeconomic areas (Nickel 2007, pp. 31–35). Though it is the case that human rights are often operationalized as formal juridical and legislative entitlements imposing correlative duties on domestic and international institutional agents, it is important to recognize that an equally significant, and perhaps prior, aspect of human rights practice is that of framing aspirations for reforming exclusionary barriers to a dynamic ideal of membership that can give rise to juridical and legislative change. Theorizing this dimension of the concept of human rights, while deepening their egalitarianism, also addresses the standard concerns of egalitarian conceptions of human rights of inflationary infeasibility and democratic acceptability within political pluralism. Amartya Sen’s theory of human rights exhibits this dualistic political role for human rights. Like principles of social justice, human rights do frequently function as “inspiration for legislation” and help Laws 2017, 6, 7 10 of 16 to illuminate the “legislative route” towards greater inclusion (Sen 2009, pp. 363–64). However, in many cases, the legislative route is not always open, or the most appropriate path, for human rights, but, as Sen puts it, “(b)ecause of the importance of communication, advocacy, exposure and informed public discussion, human rights can have influence without necessarily depending on coercive legislation” (Sen 2009, p. 365). Informal routes of the influence of human rights work by altering, institutionally and discursively, the general conditions of political legitimacy and the ‘threshold of exclusion’ in subsequent law and legislation. Human rights are, in this functioning, closer to Joel Feinberg’s idea of socioeconomic rights as ‘manifesto rights’—broad and dynamic expectations and aspirations for entitlement that condition institutional formation—than a conception of rights as mandatory norms consisting of claims against concrete duty-bearers. As aspirational norms, human rights operate to establish general expectations with respect to the functioning of institutional systems, and function politically “as determinants of present aspirations and guides to present policy” (Feinberg 1973, p. 67). Understanding human rights in this way suggests compelling similarities in their functioning to citizenship rights as a core mechanism of deepened practices of social justice. In T.H. Marshall’s foundational view of the egalitarianism of citizenship, the primary function of citizenship rights, rather than setting formal entitlement, is to condition the salient social ideas, experiences and expectations that condition the legitimacy requirements of states. Citizenship right, he argues, represents a “principle of equality” that functions ideally against “structural inequality.” Juridical and legislative entitlement embodying citizenship’s principle of equality, “instead of being the decisive step that puts policy into immediate effect, acquires more and more the character of a declaration of policy that it is hoped to put into effect some day” (Marshall 1964, p. 104). Institutional treatment and entitlement reflecting the equality of citizenship affects the “superstructure of legitimate expectations” held by members and functions as a normative standard of inclusion that “is perpetually moving forward” (Marshall 1964, p. 115). Thus, according to Marshall, “societies in which citizenship is a developing institution create an image of an ideal citizenship against which achievement can be measured and which aspiration can be directed” (Marshall 1964, p. 84). An aspirational view of human rights understands their political functioning as an additional normative layer to the equality of citizenship that can further condition the legitimacy requirements of institutional development towards egalitarian justice. Reflection on current human rights practice suggests a primary function of human rights is to work as critical taming norms for the status of citizenship in particular societies by providing external egalitarian grounds to contest different features of its condition. As Jeremy Waldron notes, there is increasingly an “interesting duplication of the subject matter between cosmopolitan norms and rules of municipal law,” such that human rights function as critical “ideas about how municipal law should be changed” (Waldron 2006, pp. 85–86). Kymlicka develops a similar claim about the relationship between human rights and citizenship, whereby the former works as ‘inspiration’ for the inclusionary tendencies of states’ treatment of historically excluded groups in traditional practices of citizenship. He argues that, “the trend towards liberal multiculturalism can only be understood as a new stage in the gradual working out of the logic of human rights, and in particular the logic of the idea of the inherent equality of human beings” (Kymlicka 2007, p. 89). While inspiring new multicultural forms of treatment of minority groups within states, Kymlicka makes the further claim that human rights also function to ‘constrain’ contestation of citizenship, as with the ascendancy of the language of human rights, “there is no legal space for minorities to set aside human rights norms in the name of multiculturalism, and, in the case of most minorities, there is no wish to do so” (Kymlicka 2007, p. 93). The addition of human rights as a further layer of regulative principles for the development of institutions may be seen as a welcome development from the liberal perspective because of the more explicit disconnection of aspirational ideas of equality from historically exclusionary bases of citizenship, such as nationality and ethnicity, which limited its capacity as a mechanism of justice. Incorporation of human rights into the ideational character of membership in political associations helps to ‘loosen’ the connections between more or less closed identities and citizenship solidarity and, Laws 2017, 6, 7 11 of 16 as Spinner-Halev suggests, allows states to more easily “turn to the needs of their minority groups” (Spinner-Halev 2008, p. 615). A common criticism of an aspirational and informal understanding of the egalitarian dimensions of human rights (and indeed of citizenship rights) is that it potentially weakens the practice by diminishing the key conceptual dimension of a right as a claim against specific, capable, duty-bearers (Kymlicka 2002; Spinner-Halev 2008). According to Nickel, the structure of human rights as ‘mandatory norms’ in political development includes both entitlement claims and obligations as “modes of directing the behaviour of the addressees” (Nickel 2007, pp. 30–31). The requirement of concrete duty-bearers, with sufficient capacities, he argues, protects against expansion of entitlement beyond present material and motivational capacities which weakens the political practice of human rights. Under the concept of human rights as membership norms that function in processes of political legitimacy, however, the inflationary possibility that attends human rights as aspirational norms is less of a concern, and is indeed a welcomed source of dynamism. Human rights should be sensitive to changing conditions of membership and be adaptable to the kinds of exclusions that prevent persons from achieving membership status. While there are general kinds of membership interests that transcend context, many are dynamic, subsequent ideas that cannot be easily understood when abstracted from the relevant political association’s unique patterns of producing and distributing burdens and benefits. What membership requires in one time and place may be substantially different than in others. In this respect, dynamism and inflation are necessary components of a theory of human rights as membership norms. While endorsing a dynamic conception of the content of human rights, grounding them in the interests of membership does impose limits on inflation beyond existent institutional and resource capacities. Though membership is an ideal and aspirational status of inclusion, it is based in the actual range of burdens and benefits that constitute the reasonable expectations of membership in particular political societies. In making inclusionary claims, a responsibility of membership is formulating them in line with the reasonable expectations of membership and present resource availability (Buchanan 2010, p. 187). This can largely be expected to be the standard case with human rights claims as they tend to be directed towards forms of exclusion to institutional opportunities that shape the expectations of most members. They will be generally feasible since to be reasonable expectations of membership, they will already be secured for most persons. Theorizing human rights as aspirational norms of membership also addresses the common criticism that holds that an egalitarian and expansive conception of human rights undercuts the idea of universality and introduces a justificatory concern of parochialism. On this objection, in light of the deep diversity across and within political societies, human rights, as standards of legitimate exercise of political authority, should be relatively minimal and uncontroversial across a wide range of ethical and moral doctrines. Expanding the sites of exclusion that are concerns of human rights, and expanding the kinds of human rights instruments that are available to address them, it is argued, can introduce tensions between human rights as acceptable standards of legitmacy and ideals of toleration and self-determination of reasonably diverse societal cultures (Cohen 2010, pp. 343–47). However, theorizing human rights as aspirational norms of inclusion into the constitutive institutions and practices of membership in a particular society, rather than as formally required universal standards for all societies, helps to reconcile an egalitarian conception of human rights with the values of self-determination and endogenous emergence of regulative norms. As aspirational standards of inclusion, human rights are available to a wide range of interests that stem from the material and cultural particulars of different forms of political association. Contextualized human rights claims can be seen in this sense as re-iterations of universal ideals of inclusion that are appropriately sensitive to the condition of membership in specific settings. As Benhabib characterizes the iterative dynamic of the universal idea of human rights in ways that reconcile it with the self-determination of particular value structures, the “iteration and interpretation of norms . . . is never merely an act of repetition. Every iteration involves making sense of an authoritative original in a new and different context” Laws 2017, 6, 7 12 of 16 (Benhabib 2006, pp. 46–50). This view of the role of universal human rights norms in shaping the conditions of legitimacy in particular political societies, moves the concept of legitimacy away from a formal conception of standardized protections and entitlements towards an ongoing deliberative conception “creative appropriation” of human rights in particular sites of political membership. Theorizing human rights in this way has the effect, as Jeremy Waldron suggest, of “shifting out attention away from formal democratic legitimacy to the more demotic legitimacy of ordinary iteration . . . (and so) we need not be as pre-occupied as we are . . . with borders and the scope of norms. Norms emerge in the world in the circumstances of dense interactions that occur all over the place (and are) democratic simply in the demotic dailiness of (their) use” (Waldron 2006, pp. 97–98). As aspirational norms for inclusion as a member of a political society, human rights emerge and exist in the world as universally available grounds for principled criticism, contestation and reform that can be adopted and applied to conditions of membership as they are found and understood. 6. International Concern The discussion of the egalitarian nature of social justice and human rights as nested membership norms in processes of establishing and satisfying the conditions of political legitimacy has thus far been domestic in its orientation. As mentioned, however, the primary approach to theorizing human rights as conditions of legitimacy concerns the terms of international recognitional legitimacy. The idea of human rights as international concern is widely thought to be a critical piece of an adequate conception of human rights, and one that marks it off from the normative domain of social justice (see, for example, (Beitz 2009; Rawls 1999b; Raz 2010; Risse 2012)). Human rights, on this view, while applying to the relationship between the institutions of political association and its members, are marked off from other political norms for association by being, further, standards of justification the violation of which imposes obligations of assistance on non-members. They are not, then, purely membership norms but are matters of international concern that make claims on the resources and capacities of non-members in ways that social justice does not. As Raz formulates the distinction, what makes a right a human right is that it is a right against one’s government that is “assertible in the international arena” and that its violation is “a (defeasible) reason for taking action against violators in the international arena . . . (such that) . . . (d)isabling the defence ‘none of your business’, is definitive of the political conception of human rights” (Raz 2010, pp. 328–32). With this distinctive function, human rights will fall short of the rights of social justice, as not all violations of social justice trigger international concern. Charles Beitz has fully developed this ground for distinguishing between the normativity of human rights and social justice, and this section responds to two of his arguments for this position. Beitz’s theory of human rights identifies the idea of international concern as a constitutive element of its normative structure that marks it off from social justice. He presents a three-part conception of human rights: human rights protect interests that are sufficiently important to make their protection a ‘political priority’; they apply to states as duties and it is advantageous for persons that states work to protect the underlying interests; and, the failure to protect the relevant interests in a ‘range of cases’ is a ‘suitable object of international concern’ (Beitz 2009, p. 136). Human rights, in this view, while applying to the relationship between the institutions of political association and its members, are marked off from other political norms for association by being, further, standards of justification the violation of which imposes obligations of assistance on non-members. They are not, then, purely membership norms but are matters of international concern that make claims on the resources and capacities of non-members in ways that social justice does not. International concern, it is important to note, includes a range of non-coercive ‘paradigms of implementation’, such as, ‘accountability’, ‘inducement’, ‘assistance’, ‘domestic contestation and engagement’, ‘compulsion’, and ‘external adaptation’ (Beitz 2009, pp. 33–40). This leads to a conception of human rights that is not ‘minimalist’ (because of the expansive non-coercive view of concern and intervention), but is not Laws 2017, 6, 7 13 of 16 ‘maximalist’ in the sense of overlapping with the full domain of social justice due to other limiting considerations of international concern. The constitutive idea of international concern in a concept of human rights, according to Beitz, marks it off from social justice for two related reasons, both of which address different issues of the capacity of international actors and the concern that “some requirements of justice may not be achievable by means of any permissible form of action available to outside agents” (Beitz 2009, p. 143). The first reason addresses limited material capacity, since “the international resources available for advancing human rights are scarce.” Given the limited resources behind international concern for human rights, it is important, Beitz argues, to distinguish and prioritize the interests underpinning human rights and social justice. Human rights, he holds, are underpinned by the more urgent non-relational interest in having a “standard of living adequate for a decent life” whereas social justice is underpinned by the comparative “interest in not feeling ashamed or humiliated by one’s material situation considered in relation to those of others” (Beitz 2009, pp. 142–43). Because there is a significant material distinction between “assisting a society to develop its economy sufficiently to eliminate the worst forms of poverty and causing it to attain an income distribution that satisfies some more ambitious standard of distributive justice” human rights should be limited to the more minimal, and apparently cheaper, aim of satisfying the requirements of a decent life (Beitz 2009, p. 143). It is not clear, however, that this objection’s framing of social justice as the stronger relationally egalitarian, and therefore more expensive, norm necessarily holds. As discussed, social justice primarily functions as regulative principles for existing political practice, and provides general standards for fair terms of inclusion into the material and cultural life of a political society. Social justice itself, in other words, does not tend to motivate social cooperation, but comes in as conditions of its normative legitimacy through processes of contestation. Actualized requirements of justice are, then, as Sangiovanni puts it, ‘practice dependent’ (Sangiovanni 2008). That is, while relational, requirements of social justice come in subsequently to institutionalized cooperation to regulate the broad distributive patterns of cooperative benefits, and to compel redistribution in cases where inequality excludes groups of persons from the status of political membership. A concept of justice as regulative principles for social cooperation will take the kinds of benefit production and development levels as found and primarily concerns interpersonal comparisons in the distribution of whatever kinds and levels of benefits are being produced. For example, in a three-person micro-case, all things being equal, a (1-1-1) distribution is just even if resource level (1) is meager and falls short of “a standard of living adequate for a decent life” (the interest Beitz identifies underpinning human rights). In this respect, human rights, as concerned with objective thresholds of well-being, not social justice, requires increasing (1) to, say, (2), which is, perhaps, more materially demanding than redistributing at the level of existing resources. One question of justice is whether the move from (1-1-1) to (8-4-2) is just, in addition to being an efficient move from the status quo. The second argument to distinguish the respective domains of human rights and social justice that Beitz makes from the “practical role of human rights as sources of reasons for transnational political action” concerns the epistemological capacity of international actors. He argues that the laws, institutions and policies of social justice can be expected to “vary across societies in ways that respond to differences in the economic, social and cultural background” and that “judgments about the requirements of justice at this level sometimes turn on complex assessments of the significance of the pertinent background facts . . . that outsiders are at a disadvantage in making” (Beitz 2009, p. 143). The membership concept of human rights suggests against this reason to distinguish it from social justice. It has been suggested that human rights and social justice are nested egalitarian norms, operating at different levels of abstraction from institutions, in establishing and satisfying the normative conditions of legitimacy in a political association. Social justice operates at a deeper level of abstraction from institutions than human rights and concerns the working of institutions together as it bears on general principles of justice, such as equal opportunity. Human rights function at more concrete levels of institutions and entitlements as mechanisms for more realizing general principles of Laws 2017, 6, 7 14 of 16 social justice. Given the function of human rights in delivering general principles of social justice in specific institutional areas, it is human rights that would seem to be necessarily more sensitive to the particularities of context, and the importance of entitlement levels in a specific area for the general structure of membership. Human rights as membership norms can be expected to display significant variation at the level of implementation based on differences across associations in the institutional and policy areas to which they apply. This should not, however, suggest against the status of human rights (or social justice) as matters of international concern, but that external forms of what Sen calls ‘social help’ (Sen 2004, p. 329) should be part of consultative processes in which relevant capacities and insights are brought to bear on the process by different domestic and international agents. Reflecting on these two arguments, the idea of non-coercive international concern does not seem decisive in setting a firm distinction between human rights and social justice, whereby human rights are the more minimalist, less egalitarian norm. A political conception of justice as subsequent regulative principles for the distribution of cooperative benefits and burdens need not require greater material or epistemological capacities on the part of international actors than a similar concept of human rights. It is also plausible that conventional concerns of comparative inequality in a theory of social justice above the threshold of decent levels of well-being can be properly seen as matters of international concern, such as in the case of significant relative inequality between a structurally advantaged majority and disadvantaged minority (or vice versa), even when the shares of the worse off is above, even well above, the preferred conception of decent or minimal levels of well-being (Griffin 2008, p. 201). 7. Conclusions Human rights practices have become a remarkably significant political force in a relatively short period of time (Raz 2010, p. 321). Increasingly, it is the dominant language of contestation of political structures and of formulating entitlement claims to different forms of institutional treatment. In this respect, human rights have not necessarily given rise to new kinds of political concerns than those addressed by claims of citizenship rights, but work to more explicitly link conventional kinds of normative claims and expectations in political associations to the universal language of the equal moral standing of humanity. Human rights connect membership claims within a political association to an external egalitarian status that bears on its legitimacy. A notable development in the continuing emergence of human rights norms is the expansion of the kinds of inequality and exclusion they cover, including both the relevant sites and identities of exclusive practices. This ongoing development increasingly brings human rights practice closer in line with forms of membership-oriented comparative evaluations that characterize a political concept of social justice than with a general idea of a socially situated minimally decent level of well-being. The basic suggestion of this paper is that the upward tendencies in the development of human rights practice need not be theoretically capped short of the principles of social justice. It aimed to show that an expansive, egalitarian, conception of human rights can be reconciled with them functioning as the basic mechanism of (a specific conception of) political legitimacy. The discursive and institutional elements of this dynamic also address concerns of inflationary concerns that attend to resource availability, as well as worries about problematic justificatory parochialism in an egalitarian normative model. It was further argued that the status of human rights, as matters of international concern, needs to be seen as decisive in ruling out an egalitarian conception of their demands. Acknowledgments: This paper was supported by a University of Saskatchewan President’s SSHRC Grant, for which I am grateful. Conflicts of Interest: The author declares no conflict of interest. References Beitz, Charles. 2009. The Idea of Human Rights. Oxford: Oxford University Press. Laws 2017, 6, 7 15 of 16 Benhabib, Seyla. 2006. Democratic Iterations: The Local, the National and the Global. In Another Cosmopolitanism. Edited by Robert Post. Oxford: Oxford University Press, pp. 45–82. Buchanan, Allen. 2005. Equality and Human Rights. Politics, Philosophy and Economics 4: 69–90. [CrossRef] Buchanan, Allen. 2010. The Egalitarianism of Human Rights. Ethics 120: 679–710. [CrossRef] Clapham, Andrew. 2007. Human Rights: A Very Short Introduction. Oxford: Oxford University Press. Cohen, Joshua. 2010. The Arc of the Moral Universe and Other Essays. Cambridge: Harvard University Press. Cranston, Maurice. 1973. What are Human Rights? London: Bodley Head. Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge: Harvard University Press. Feinberg, Joel. 1973. Social Philosophy. Englewood Cliff: Prentice Hall. Finnis, John. 2011. Natural Law and Natural Rights. Oxford: Oxford University Press. Fraser, Nancy. 1996. Social Justice in the Age of Identity Politics. Salt Lake: Tanner Lectures on Human Values. Garcea, Joseph, and Neil Hibbert. 2011. Policy Frameworks for Managing Diversity in Canada. In Integration and Inclusion of Newcomers and Minorities across Canada. Edited by John Biles, Meyer Burstein, James Frideres, Erin Tolley and Rob Vineberg. Montreal: McGill-Queen’s University Press, pp. 18–45. Gravel, Eric, and Quentin Delpech. 2008. International Labour Standards: Recent Developments in Complementarity between the International and National Supervisory Systems. International Labour Review 147: 403–15. [CrossRef] Green, Leslie. 1988. The Authority of the State. Oxford: Clarendon Press. Griffin, James. 2008. On Human Rights. Oxford: Oxford University Press. Heath, Joseph. 2011. Three Normative Models of the Welfare State. Public Reason 3: 13–44. Hucker, John. 1997. Antidiscrimination Laws in Canada: Human Rights Commissions and the Search for Equality. Human Rights Quarterly 19: 547–71. [CrossRef] Hurrell, Andrew. 2005. Legitimacy in the Use of Force: Can the Circle be Squared? Review of International Studies 31: 15–32. [CrossRef] Jetsckhe, Anja. 1999. Linking the Unlinkable? International Norms and Nationalism in Indonesia and the Philippines. In The Power of Human Rights: International Norms & Domestic Change. Edited by Thomas Risse, Stephen C. Ropp and Kathryn Sikkink. Cambridge: Cambridge University Press, pp. 134–71. Jones, Charles. 2010. Human Rights and Moral Cosmopolitanism. Critical Review of International Social and Political Philosophy 13: 115–35. [CrossRef] Kymlicka, Will. 2002. Contemporary Political Philosophy, 2nd ed. Oxford: Oxford University Press. Kymlicka, Will. 2007. Multicultural Odysseys. Oxford: Oxford University Press. Marshall, Thomas H. 1964. Class, Citizenship and Social Development. New York: Doubleday. Nagel, Thomas. 2005. The Problem of Global Justice. Philosophy and Public Affairs 33: 113–47. [CrossRef] Nickel, Jamie. 2007. Making Sense of Human Rights, 2nd ed. Malden: Blackwell. O’Neill, Onora. 2005. The Dark Side of Human Rights. International Affairs 81: 427–39. [CrossRef] Parekh, Bhiku. 1993. A Misconceived Discourse on Political Obligation. Political Studies 41: 236–51. [CrossRef] Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999a. A Theory of Justice, 2nd ed. Cambridge: Belknap Press. Rawls, John. 1999b. The Law of Peoples. Cambridge: Harvard University Press. Ray, Douglas, and Norma Bernstein Tarrow. 2014. Human Rights and Education: An Overview. In Human Rights and Education, 3rd ed. Edited by N. Berstein Tarrow. New York: Pergamon Press, pp. 3–16. Raz, Joseph. 2010. Human Rights without Foundations. In The Philosophy of International Law. Edited by Samantha Besson and John Tasioulas. Oxford: Oxford University Press, pp. 321–38. Reiman, Jeffrey. 1997. Critical Moral Liberalism. New York: Rowman and Littlefield. Risse, Mathias. 2012. On Global Justice. Princeton: Princeton University Press. Sangiovanni, Andrea. 2008. Justice and the Priority of Politics to Morality. Journal of Political Philosophy 16: 137–64. [CrossRef] Sen, Amartya. 2004. Elements of a Theory of Human Rights. Philosophy and Public Affairs 32: 315–56. [CrossRef] Sen, Amartya. 2009. The Idea of Justice. Cambridge: Belknap Press. Spinner-Halev, Jeffrey. 2008. Democracy, Solidarity and Post-Nationalism. Political Studies 56: 604–28. [CrossRef] Taylor, Charles. 1993. Reconciling the Solitudes. Montreal: McGill-Queen’s University Press. UN General Assembly. 1948. Universal Declaration of Human Rights. New York: UN General Assembly. http://dx.doi.org/10.1177/1470594X05049436 http://dx.doi.org/10.1086/653433 http://dx.doi.org/10.1111/j.1564-913X.2008.00042.x http://dx.doi.org/10.1353/hrq.1997.0028 http://dx.doi.org/10.1017/S0260210505006765 http://dx.doi.org/10.1080/13698230903326299 http://dx.doi.org/10.1111/j.1088-4963.2005.00027.x http://dx.doi.org/10.1111/j.1468-2346.2005.00459.x http://dx.doi.org/10.1111/j.1467-9248.2006.tb00926.x http://dx.doi.org/10.1111/j.1467-9760.2007.00291.x http://dx.doi.org/10.1111/j.1088-4963.2004.00017.x http://dx.doi.org/10.1111/j.1467-9248.2007.00708.x Laws 2017, 6, 7 16 of 16 Vizard, Polly. 2006. Poverty and Human Rights: Sen’s Capability Perspective Explored. Oxford: Oxford University Press. Waldron, Jeremy. 2006. Cosmopolitan Norms. In Another Cosmopolitanism. Edited by Robert Post. Oxford: Oxford University Press, pp. 83–101. Weller, Penelope. 2009. Human Rights and Social Justice: the CRPD and the Quiet Revolution in International Law. Public Space: The Journal of Law and Social Justice 4: 74–91. © 2017 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Introduction The Dominant Philosophical View of Human Rights and Social Justice Human Rights as Membership Norms Membership and Political Legitimacy Human Rights as Aspirational International Concern Conclusions 
work_3huqvrglnjcmjap3vww3bxwqni	----	CANADIAN JOURNAL OF PHILOSOPHY Supplement Volume VII, 1981 Doing Marx Justice GARY YOUNG, Madison, Wisconsin The circumstance that on the one hand the daily sustenance of labour power costs only half a day's labor, while on the other hand the very same labor power can work during a whole day, that consequently the value which its use during one day creates is double what he [the capitalist] pays for that use, this circumstance is without a doubt a piece of good luck for the buyer but by no means an injustice [UnrechtJ to the seller [the worker}.1 [TJhe surplus product [is] the tribute annually exacted from the working class by the capitalist class. Though the latter with a portion of that tribute purchases the additional labor power even at its full price, so that equivalent is exchanged for equivalent, yet the transaction is for all that only the old dodge of every conqueror who buys commodities from the conquered with the money he has robbed them of. 2 Was Marx confused? How could he think what these passages and others like them say: that the capitalist robs the worker but treats the worker justly? Marx's statements make sense only if the contradiction between robbery and justice is merely apparent. There are three ways to show that it is. Each has been defended recently. Karl Marx, Capital (New York: 1967) 1,194. 2 Ibid. 582. 251 Gary Young First, one can say that Marx does not mean 'rob' in the ordinary sense in which robbery without qualification is unjust. Derek P.H. AUen and Allen W. Wood have advocated this interpretation.) Second, one can say that Marx does not mean 'unjust' in the or­ dinary sense in which it is unjust to rob. Ziyad I. Husami has defended this interpretation. 4 Third, one can say that Marx meant 'rob' and 'unjust' in their or­ dinary senses, but that he was referring to two distinct transactions when he said the worker is robbed but treated justly. In an earlier papers I took this position. I contended that on Marx's view the worker is treated justly as seller in the exchange of tabor power for wages, but is then robbed in the production process, during which the capitalist extracts surplus value from the worker. I further argued that on Marx's view only the extraction of surplus value, not the wage exchange, is real. In reality, therefore, capitalist production is wholly unjust. I still think this third position is right, despite vigorous defenses of the others by Wood, Allen and Husami. In what foflows 1 shall sketch a defense of my position against Allen's and Wood's main points. Sec­ tions I and 11 examine the justice of the wage-exchange and injustice of capitalist exploitation, looking first at texts where Marx speaks of justice (Section I) and then texts where he speaks of theft (Section II). Section III develops the latter theme by turning to Marx's assessment of primitive capitalist accumulation as theft. Section IV reconsiders Marx's view that the wage-exchange is not real. In the final section, I discuss Marx's use of the concepts of justice and freedom to criticize capitalist production relations. 3 Derek P.H. Allen, 'Marx and Engels on the Distributive Justice of Capitalism,' this volume, 221 MSO, Allen W. Wood, 'The Marxian Critique of Justice,' Philosophy & Public Affairs 1 (1971-2) 244-82 (cited as Wood [1 ]); 'Marx on Right and Justice: A Reply to Husami,' Philosophy and Public Affairs 8 (1978-9) 267-95 (cited as Wood [2]). 4 Ziyad I. Husami, 'Marx on Distributive Justice,' Philosophy & Public Affairs 8 {1978-9) 27-64. 5 Gary Young, 'Justice and Capitalist Production: Marx and Bourgeois Ideology,' Canadian Journal of Philosophy 8 (1978) 421-55. 252 Doing Marx Justice Allen and Wood argue that Marx regarded the extraction of surplus value as just. They draw this inference from two distinct sorts of statements in Marx's writings. Illustrative of the first sort of statement is that quoted at the start of this paper, in which Marx says that the creation of surplus value during direct production 'is without a doubt a piece of good luckfor the buyer [of labour power, namely the capitalist] but by no means an injustice to the seller [the worker].'6 From such passages Allen and Wood infer that the extraction of surplus value is not unjust to the worker, who is, after all, the seller of labor power. But this inference is unwarranted, in the sense in which Allen and Wood intend it. In these passages Marx is speaking of the worker only in his or her role as owner and seller of labor power, not as a factor in the production process. In his or her role as seHer, the worker is treated fairly, because (Marx assumes) the worker receives in the form of wages the value of the labor power he or she sells. But this leaves it an open question whether the worker is treated fairly as factor in the process of production. Marx answers this question in the negative, as passages discussed in the next section show. To understand fully what Marx means when he says that the seller of labor power is not treated unjustly, we must recall the crucial importan­ ce in Marx's analysis of capitalist production of the distinction between exchange or circulation and direct production. 7 To this distinction corresponds another between two roles taken by the worker. In the marketplace, the worker appears as the owner of his or her own labor power; bargaining, the worker appears as potential seller of labor power, and when the sale is executed, as actual seller. But once the sale is completed, the worker is no longer owner or selJer of labor power: The worker is now nothing but labor power for use in production (for the duration of the term of sale), and moreover labor power owned by the capitalist. Marx says the worker is now a 'living component of capital.' The apparently symmetrical relation of buyer and seller in the market is now replaced by the asymmetrical relation of owner and owned. This transformation occurs because what the worker as seller sells is the worker as labor power. 'The worker' is ambiguous between these two distinct roles. This ambiguity underlies not only the invalid in­ 6 Capital I, 194. 7 See my /The Fundamental Contradiction of Capitalist Production,' Philosophy & Public Affairs 5 (1975-6) 196-234, especially 217-26. 253 Gary Young ference drawn by Allen and Wood, but also much of bourgeois ideology, as Marx explains repeatedly. We have seen that the transformation of money into capital breaks down into two wholly distinct, autonomous spheres, two entirely separate processes. The first belongs to the realm of the circulation of commodities and is acted out in the market-place. It is the sale and purchase of labour-power. The second is the consumption of the labour-power that has been acquired, i.e. the process of production itself. In the first process the capitalist and the worker confront one another merely as the owners respectively of money and commodities, and their transactions, like those of all buyers and sellers, are the exchange of equivalents. In the second process the worker appears pro tempore as the living component of capital itself, and the category of exchange is entirely excluded here since the capitalist has acquired by purchase all the factors of the produc­ tion process, both material and personal, before the negotiations begin. However, although the two processes subsist independently side by side, each conditions the other. The first introduces the second and the second completes the first. The first process, the sale and purchase of labour-power, displays to us the capitalist and the worker only as the buyer and seller of commodities. What distinguishes the worker from the vendors of other commodities is only the specific nature, the specific use-value, of the commodity he sells. But the par­ ticular use-value of a commodity does not affect the economic form of the transaction; it does not alter the fact that the purchaser represents money, and the vendor a commodity. In order to demonstrate, therefore, that the relation­ ship between capitalist and worker is nothing but a relationship between commodity owners who exchange money and commodities with a free con­ tract and to their mutual advantage, it suffices to isolate the first process and to cleave to its formal character. This simple device is no sorcery, but it contains the entire wisdom of the vulgar economists." This same point is made more colorfully by a pair of passages stan­ ding at the beginning and the end of Marx's analysis of the workday in Volume I of Capital: The sphere of circulation or the exchange of commodities, within whose boun­ daries the sale and purchase of labor power goes in, is in fact a very Eden of innate human rights. Here alone rule freedom, equality, property and Bentham .... Equality! Because they [buyer and seller) are related to each other only as owners of commodities and exchange equivalent for equivalent. On leaving this sphere of simple circulation or commodity exchange ... it seems that the physiognomy of our dramatis personae changes. The erstwhile money­ owner strides in front as capitalist, and the former owner of labour power follows him as his laborer. 9 8 Karl Marx, 'Results of the Immediate Process of Production,' in Capital I (New York: 1977) 1002. 9 Capital I, 176. 254 Doing Marx Justice It must be acknowledged that our laborer comes out of the process of pro­ duction other than he entered. In the market he stood as owner of the commod­ ity labor power over other commodity owners ... The bargain concluded, it is that he was no "free " that the time for which he is free to sell his labor power is the time for is forced to sell it, that in fact the vampire will not lose its hold on him lisa long as there is a muscle, a nerve, a drop of blood to be exploited." 10 As these statements show, we may not infer from Marx's ascription of some characteristic to the worker as seller that Marx would ascribe that same to the worker as 'living component of capital' or without qualification. But this is just the sort of inference Allen and Wood draw. They infer from Marx's statement that the worker is treated justly as seller that Marx thinks the worker is treated justly simpliciter. Moreover Marx is careful to indicate that any claim that the capitalist treats the worker justly derives from consideration of the sphere of ex­ alone, not direct production. Marx says that the 'seller' of labour power is not defrauded,11 and that the rights of the capitalist arise from the fact that he has 'bought' labor power. 12 Allen and Wood lose sight of the possibility that the distribution of value via the mechanism of the market might be just, even though the means by which value initially enters the market, and the underlying distribution of the rneans of production, is unjust. This possibility invalidates the inference from market justice to justice in direct produc­ tion or capitalist production as a whole. A similar error vitiates Allen and Wood's interpretation of the second sort of passage from which they infer that Marx thought the extraction of surolus value In of sort Marx says or that trans- are just if correspond to the dominant production relations, and unjust if contradict them. 13 But as I noted in my earlier article, the transactions Marx speaks of in these passages are ex­ pressly said to have the juridical form of a contract. They are exchange transactions which occur in the market. The extraction of surplus value is not an It occurs in direct production. Moreover, as I also noted earlier, it not intelligible to say that the extraction of surplus 10 11 12 13 Ibid. 301 ~2. [bid. 585. Ibid. 196. Karl Marx, Karl Marx: (New York: 1967) III, Writings, ed. David l-oYn 'Critique of The Gotha Prog h::lrh (New York: 1974) III, 344. ram,' 255 Gary Young value 'corresponds to' capitalist production relations; rather, it is the basic capitalist production relation. For both reasons, the second sort of passage does not imply that extraction of surplus value is just. In sum, neither sort of passage cited by Allen and Wood shows that Marx thought the extraction of surplus value just. And other passages, which they misread, show that Marx clearly thought it unjust. To these I now turn. II Wood and Allen admit that Marx says the worker is robbed by the capitalist, but they deny that it follows that Marx thought the extraction of surplus value unjust. They attempt to rebut this inference in two ways. First, Allen argues that in some of the places where Marx speaks of robbery he is referring to the robbery not of surplus value but of something else. Second, Allen and Wood contend that in other places Marx uses the word 'robbery' rhetorically, without the normal im­ plication that the act so described is unjust. Neither contention is plausible. First consider the three texts which Allen claims refer to the robbery of something other than surplus value. (a) In the Grundrisse Marx says that wealth in bourgeois society is based on 'theft [Diebstahl] of alien labor time.'14 Allen comments: 'His [Marx's] point, as the context shows, is that in capitalism the worker is 14 Karl Marx, Grundrisse (New York: 1974) 704-5. Marx says: to the degree that large industry develops, the creation of real wealth comes to depend less on labour time and on the arnount of labour employed than on the power of the agencies set in motion during labour time, whose "powerful effectiveness" is itself in turn out of all proportion to the direct labour time spent on their production, but depends rather on the general state of science and on the progress of technology, or the application of this science to production ... The theft of alien labour time, on which the present wealth is based, appears a miserable foundation in face of this new one, created by large-scale industry itself. As soon as labour in the direct form has ceased to be the great well-spring of wealth, labour time ceases and must cease to be its measure, and hence exchange value [must cease to be the measure] of use value. The surplus labour of the mass has ceased to be the condition for the development of general wealth, just as the non-labour of the few, for the development of the general powers of the human head. 256 Doing Marx Justice deprived of time for his own development.'ls No doubt this is one of Marx's points here. But a fair reading shows that Marx had another point: The extraction of surplus value is theft. This text unmistakably identifies 'alien labor time' with 'the surplus labor of the mass.' It is precisely this surplus labor, which in capitalist production takes the form of surplus value, that the capitalist steals, according to this text. (b) Marx describes the capitalist's greed for surplus labor as a 'blind eagerness for plunder [blinde Raubgier].'16 Allen comments: 'He [Marx] is referring to capital's limitless draining of labor-power, not specifically to the appropriation of surplus value.'17 But the title of the section in which this passage occurs is 'The Greed for Surplus Labor,' and the paragraph at issue expressly relates to that theme. It describes the Fac­ tory Acts as an expression of the capitalist's greed for surplus labor, which in capitalist production takes the form of surplus value. No doubt the 'blind eagerness for plunder' - that is, for surplus value - is harmful to the health of the worker ('tears up by the roots the living force of the nation'). But the direct object of the capitalist's greed is not the health of the worker, but surplus labor or value (which appears to the capitalist as profit). It is because the capitalist steals surplus value that he also steals the health of the worker. (c) Marx says that 'all progress in capitalistic agriculture is a progress in the art, not only of robbing [berauben] the laborer, but of robbing the soil; all progress in increasing the fertility of the soil for a given time is progress towards ruining the lasting sources of that fertility.'18 Allen 15 Allen, Appendix (3), 248. 16 Capital I, 238-9. Marx says: If the Reglement organique of the Danubian provinces was a positive expression of the greed for surplus-labour which every paragraph lega­ lized, the English Factory Acts are the negative expression of the same greed. These acts curb the passion of capital for a limitless draining of labour-power, by forcibly limiting the working-day by state regulations, made by a state that is ruled by capitalist and landlord. Apart from the working-class movement that daily grew more threatening, the limiting of factory labour was dictated by the same necessity which spread guano over the English fields. The same blind eagerness for plunder that in the one case exhausted the soil, had, in the other, torn up by the roots the living force of the nation. Periodical epidemics speak on this point as clearly as the diminishing military standard in Germany and France. 17 Allen, Appendix (1), 248. 18 Capital I, 506. 257 Gary Young claims that Marx speaks here of the robbery of only the worker's health. 19 Of course Marx has at least this in mind. As the two passages just discussed show, however, when Marx speaks of theft from the worker he has in mind not merely or primarily the theft of health or disposable time, but the theft of surplus value or labor. The emphasis upon the worker's health in this text hardly shows that Marx did not also mean to refer to the theft of surplus value. Indeed, it is hard to see how Marx could have regarded the taking of the worker's health or time for development as unjust and not thought the same of the taking of surplus value. But what if Allen were right, and in this text (unlike the preceding two) Marx were not referring to the theft of surplus value? Does Allen maintain that the theft of the worker's time or health is just? Doesn't this text show at least that on Marx's view capitalist production essentially involves the theft of the worker's time and health, and is for that reason unjust? I now turn to the other texts, which Allen and Wood say employ the word 'rob' 'figuratively' or 'rhetorically'. (d) Of two texts Allen says merely that he thinks Marx does not mean what he says: That the capitalist pumps 'booty' [Beute] out of the worker and that the capitalists divide among themselves the 'loot' [Beute] of other people's labor. 20 But why did Marx say 'Beute' if he did not mean it? Allen fails to explain this, or to give any other reason for accepting his forced reading. (e) Marx says that the surplus product is stolen (erwandt) without return of an equivalent from the English laborer. 21 Allen dismisses this statement, apparently on the ground that Marx here criticizes bourgeois apologists, and therefore could not mean 'erwandt' literally.22 This is a non sequitur. If anything, this context should imply that Marx did mean 'erwandt' literally. (f) In another passage (quoted at the start of this paper) Marx says that the capitalist only uses 'the old dodge of every conqueror who buys commodities from the conquered with the money he has robbed them of.'23 To minimize this text, Allen first says that because Marx thinks the 19 Allen, Appendix (2). 248. 20 Capital I, 596; Theories of Surplus Value (Moscow: 1968) II, 29. Allen's comment is at Allen, Appendix (4) and (5). 21 Capita/I,611. 22 Allen, Appendix (7), 249. 23 Capital I, 582. 258 Doing Marx Justice wage-exchange is just, he must speak 'figuratively' here of robbery.24 This ignores the crucial Marxian distinction between exchange and direct production, and between the worker as seller and as living com­ ponent of capital (see section I above). Second, and surprisingly, Allen also says that on Marx's view it is a mistake to view capitalist production as a relation between classes, and that because this text speaks in this mistaken way, it should not be taken literally.25 But as I explain below (section IV), Marx thought that on the contrary the only correct way to understand capitalist production was as a repeated transaction between the working class and the capitalist class. Wood thinks Marx could not have meant 'geraubten' literally in this text because the transactions Marx calls robbery (exacti ng tri bute, ex­ tracting surplus value) correspond to the dominant production relations and are therefore juSt. 26 As 1 explained in section I, however, Marx's 'correspondence' theory of justice applies only to exchange transac­ tions, and cannot apply to the extraction of surplus value. Moreover in this very text Marx takes pains to point out that robbery occurs despite the fact that equivalent is exchanged for equivalent in the market. Had Marx wishes to say what Wood and Allen ascribe to him, he would have said instead that because equivalents are exchanged in the market, there is no robbery outside the market. (g) In a passage 'I neglected in my earlier paper, Marx comments on Wagner's imputation to socialists of the view that profit on capital is 'only a deduction or 'theft' from the laborer': What a "deduction from the laborerll is, a deduction of his skin, etc., is not explained. Now in my presentation profit on capital is in fact also not "only a deduction or 'theft' from the laborer." On the contrary, I represent the capita­ list as a necessary functionary of capitalist production, and indicate at length that he does not only "deduct" or "rob" but enforces the production of surplus value and thus first helps to create what is to be deducted; I further indicate in detail that even if in commodity exchange only equivalents are exchanged, the capitalist - as soon as he has paid the laborer the real value of his labor power quite legally, i.e. by the law [Recht] corresponding to this mode of production, obtains surplus value. But all this does not rnake "profit on capital" into a "constitutive" element of value, but only proves that in the value, which is not "constituted" by the labor of the capitalist, something remains that he can "legally" appropriate, i.e. without violating the law corresponding to commo­ dityexchange. 27 24 Allen, Appendix (6), 248. 25 Ibid. 26 Wood [2], 278-9. "Lehrbuch der Dolitischen 6konomie",' Theoretical Practice I 5 (1972) 27 'Marginal Notes on Adolph 259 Gary Young Wood and Allen read this text in different ways. Wood takes it as an ex­ pression of the view that the extraction of surplus value is not robbery.28 But this ignores Marx's statement that the capitalist does not only rob the worker, which means that the capitalist at least robs the worker. Allen recognizes that Marx expressly says here that the capitalist steals surplus value from the worker, but concludes that Marx has misrepresented his own view!2 9 How could Marx have made such a clumsy mistake? Allen does not say_ Consider this text rnore closely. Wagner says that profit on capital is constituted by the activity of the capitalist in forming and deploying capital; it is not a theft from the worker. What does Marx reject in this position? Everything: Marx asserts that 0) profit is a theft or deduction from the worker, and is not constituted by the labor of the capitalist. But Marx adds that Oi) nonetheless the capitalist is not a parasite; he is a necessary functionary of capitalist production, the agent who forces the creation of surplus value by the worker. Therefore (iii) the capitalist has a right to surplus vaJue by the Recht corresponding to commodity exchange, even though that right does not arise from any value-creating labor of the capitalist. Marx had here a perfect opportunity to say that he agreed with Wagner that the extraction of surplus value is not theft. Instead, he said it is theft, but is also right according to the laws of commodity produc­ tion. This paradoxical assertion must be puzzling to anyone who, like Wood, Allen and Husami, assumes that 'theft' and 'right' cannot both be meant literally. But the passage makes good sense in light of the foregoing remarks. The capitalist's right to profit arises frorn the laws of commodity exchange, which are market rights, rights one has only in one's role as owner and buyer or seller. As a living component of capital, the worker has no market rights. But it is as living component of capital that the worker is exploited. When Marx says that capitalist exploitation is theft - and therefore unjust - he presupposes a background of rights that do not arise from one's status in the market. In sum, when Marx said that the extraction of surplus value from the worker was robbery by the capitalist, he meant 'robbery' in the ordinary sense in which robbery is unjust. The passages in Marx's writings sup­ porting this conclusion are too many and too clear to deny it. Moreover, Marx expressed similar views regarding the original institution of 28 Wood [2]/ 276-7. 29 AlienI 247 260 Doing Marx Justice capitalist class relations by the process he called 'primitive ac­ cumulation of capita!.' A brief review of Marx's description of the in­ justice of primitive accumulation will reinforce the conclusions we have already reached. III The original capital was formed by the advance of £10,000. How did the owner become possessed of it? "By his own labor and that of his forefathers," answer unanimously the spokesmen of Political Economy. And, in fact, their supposi­ tion appears the only one consonant with the laws of the production of commodities. 30 Having said this, Marx proceeds immediately to argue that the ad­ ditional £2,000 profit realized from the investment of this 'original capital' was obtained by robbery, though the capitalist has a right to it according to the laws of the production of commodities. 31 It is only later in Volume I of Capital that Marx returns to the 'original capital' and con­ tends that, from being the product of the labor of the capitalist and his forefathers, it too was acquired by systematic robbery. In its origin, as in its continuous reproduction, capitalist production rests upon theft. In this section J shall look at Marx's normative appraisal of primitive ac­ cumulation and its implications for our subject. Capitalist production requires the 'free' laborer - in a double sense of which Marx makes use in puns. The worker must be 'free' to sell his or her labor power, but must also be 'free' of ownership or control of the means of production, so he or she is cornpelled to sell labor power to the owner of the means of production, the capitalist. At the origin of capitalist production, in primitive accumulation, we therefore find the liberation of the workers-to-be: The immediate producer, the laborer, could dispose of his own person only after he had ceased to be attached to the soil and had ceased to be the slave, serf or bondsman of another. To become a free seller of labor-power, who carries his commodity wherever he finds a market, he must further have escaped from the of the guilds, their rules for apprentices and journey­ men, and the of their labor regulations. Hence the historical 30 Capital I, 582. 31 Ibid. 582-8. 261 Cary Young movement which changes the producers into wage-workers appears on the one hand as their emancipation from serfdom and from the fetters of the guilds, and this side alone exists for our bourgeois historians. But on the other hand these new freedmen became sellers of themselves only after they had been robbed [geraubt] of all their own means of production and of all the guarantees of existence afforded by the old feudal arrangements. And the history of this, their expropriation, is written in the annals of mankind in letters of blood and fire. 32 This robbery was carried out not only by means of private force, but by the Jaw, which in the eighteenth century became 'itself the instrurnent of the theft [des Raubs] of the people's land.'33 'The parliamentary form of the robbery [des Raubs] is that of Acts for enclosures of Commons, in other words, decrees by which the landlords grant themselves the people's land as private property, decrees of expropriation of the people.'34 And the objects of this robbery were four: The robbery [Raub] of the church's property, the fraudulent alienation [fraudu­ lente Verausserung] of the state domains, the theft [DiebstahIJ of the common lands, the usurpation of feudal and clan property and its transformation into modern private property under circumstances of reckless terrorism, were just so many idyllic methods of primitive accumulation. 35 In short, the working class was 'freed' by robbery. In making this statement Marx is manifestly not speaking of robbery rhetorically or figuratively. He is indignant; he is saying that it was unjust to do the act characterized as robbery. Marx's appraisal of primitive accumulation has two implications for our subject. First, Allen and Wood say that for Marx any concept of justice is a juridical concept, by which they at least mean that it is a con­ cept that is tied to a specific correlated sort of prod uction relations in two respects: one cannot intelligibly apply that concept of justice to other sorts of production relations or use it to criticize the correlated production relations. 36 But Marx's repeated characterization of primit­ ive accumulation as robbery shows that Wood and Allen are wrong. By definition, primitive accumulation took place during a trans­ 32 Ibid.715. 33 Ibid. 724. 34 Ibid. 35 Ibid. 732. See also pp. 714, 725,728. 36 Wood [1], 254-60; Allen, 222 262 Doing Marx Justice Ition period, in which no single set of production relations was dominant from beginning to end. Therefore no correlative juridical concepts apply throughout a transition period or warrant the con­ tinuous characterization of expropriation as robbery. On the view of Wood and Allen, it is inexplicable that Marx called primitive ac­ cumulation robbery. It is even more inexplicable that he said the rob­ bery was by Parliament and the law. 'Robbery' is here clearly not a 'juridical' concept. The second implication can be put in the form of a question: If primitive accumulation was robbery and hence unjust, how can the continued reproduction of capitalist relations, by means of the extrac­ tion of surplus value, be just? Does not the first theft taint all that follows? Perhaps not. But at the very least the first theft makes it much more difficult to maintain the justice of ongoing capitalist production, and this is a difficulty that neither Wood nor Allen has tried to over­ come. IV If the foregoing is correct, Marx regarded the wage-exchange as just to the worker as seller of labor power, and the extraction of surplus value as unjust to the worker as living component of capital. In my earlier paper I argued that Marx advanced the further thesis that the wage­ exchange is a mere appearance, that in reality capitalist production is simply the extraction of surplus value. Allen denies that Marx affirmed this non-reality thesis. Allen's premise is that Marx analyzed capitalist production by considering each act of exchange by itself, and not seeking relations between whole social c1asses.J7 But, as Allen correctly states, the non-reality thesis is correct (if at all) only when capitalist production is seen as a continuous transaction between working and capitalist classes. So, Allen concludes, Marx could not have adhered to the non-reality thesis. In support of his remarkable premise, Allen adduces a single text. Marx has just stated that the worker is paid the just price of his or her labor power. He goes on to say: 37 Allen, 234-7 263 Cary Young To be sure, the matter looks quite different if we consider capitalist produc­ tion in the uninterrupted flow of its renewal, and if, in place of the individual capitalist and the individual worker, we view them in their totality, the capita­ list class and the working class confronting each other. But in so doing we should be applying standards entirely foreign to commodity production. Only buyer and seller, mutually independent, face each other in commodity production. The relations between them cease on the day when the term sti­ pulated in the contract they concluded expires. If the transaction is repeated, it is repeated as the result of a new agreement which has nothing to do with the previous one and which only by chance brings the same seller together again with the same buyer. If, therefore, commodity production, or one of its associated processes, is to be judged according to its own economic laws, we must consider each act of exchange by itself, apart from any connexion with the act of exchange pre­ ceding it and that following it. And since sales and purchases are negotiated solely between particular individuals, it is not admissible to seek here for relations between whole social classes.'· Allen sees in this text an affirmation that the correct perspective from which to view capitalist production is that which ignores classes and class relations and treats individuals and their transactions atomistically: Marx intends ... to contrast two ways of regarding a wage transaction in which the wage is realized surplus value: one sees it as a relation between individuals, the other as a relation between classes. To regard it in the latter way is to apply standards foreign to commodity production. So, we seem warranted to infer, the correct way to regard it is as a relation between individuals. '9 But this inference is warranted only on the basis of a further premise: That (on Marx's view) capitalist production must be understood only in terms of standards that are not foreign to commodity production. This is a premise that Allen cannot find support for in Marx's writings. Allen brings this premise to the text himself. First, Marx regards most if not all bourgeois ideology as based on the reduction of capitalist production to mere commodity production, with a consequent emphasis upon market transactions and suppression of the specific nature of direct production, the locus of capitalist ex­ ploitation. This reduction 'contains the entire wisdom of the vulgar econom ists.' 40 Second, Marx's own analysis is expressly based on the view that capitalist production is the continuous repetition of a transaction, rather 38 Capital I, 586. 39 Allen, 235-6 40 'Results of the Immediate Process of Production: 1002. 264 Doing Marx Justice than a series of isolated exchanges, and moreover the repetition of a transaction that is unintelligible unless understood as taking place be­ tween two classes rather than between individuals who happen to be now buyers, now sellers in the market. This view pervades Marx's mature writings, but here I can only quote one striking illustration of it: The purchase of labour-power for a fixed period is the prelude to the pro­ cess of production; and this prelude is constantly repeated when the stipulated term comes to an end, when a definite period of production, such as a week or a month, has elapsed. But the labourer is not paid until after he has expended his labour-power, and realised in commodities not only its value, but surplus­ value. He has, therefore, produced not only surplus-value, which we for the present regard as a fund to meet the private consumption of the capitalist, but he has also produced, before it flows back to him in the shape of wages, the fund out of which he himself is paid, the variable capital; and his employment lasts only so long as he continues to reproduce this fund. Hence, that formula of the economists, referred to in Chapter XVIII., which represents wages as a share in the product itself. What flows back to the labourer in the shape of wages is a portion of the product that is continuously reproduced by him. The capitalist, it is true, pays him in money, but this money is merely the transmuted form of the product of his labour. While he is converting a portion of the means of production into products, a portion of his former product is being turned into money. It is his labour of last week, or of last year, that pays for his labour­ power this week or this year. The illusion begotten by the intervention of money vanishes immediately, if, instead of taking a single capitalist and a single labourer, we take the class of capitalists and the class of labourers as a whole. The capitalist class is constantly giving to the labouring class order-notes, in the form of money, on a portion of the commodities produced by the latter and appropriated by the former. The labourers give these order-notes back just as constantly to the capitalist class, and in this way get their share of their own product. The transaction is veiled by the commodity-form of the product and the money-form of the commodity41 Here it is precisely the invocation of a class perspective that is necessary to destroy the 'illusion' created by money and the commodity form. These texts make it amply clear that when Marx refers, in the passage upon which Allen relies, to 'standards entirely foreign to commodity production,' he is referring to the standards upon which his own analysis rests. Certainly it should be no surprise that Marx's analysis cannot be stated without essential reliance upon the interrelated con­ cepts of the working class, the capitalist class, and the transaction be­ tween them. Allen offers a second objection, apparently both to the non-reality thesis and to my claim that Marx asserted it. Allen says that 41 Capita/I, 567-8. See also the references in note 55 of 'Justice and Capital Pro­ duction.' 265 Gary Young it is obvious that the workers end up with means of consumption which they lacked when they entered their wage transactions, as Young recognizes. But this is enough to make the "total transaction" between labor and capital a genuine exchange. 42 It might be enough to make the total transaction a genuine or real ex­ change if the capitalist began the total transaction with the means of consumption and transferred them to the worker. But the means of con­ sumption are created by the worker during the transaction. The capitalist does not own them at the start, but only during a transitory in­ termediate phase of the total transaction. This passing ownership, as Marx says, 'disappears in the result' of the total transaction. That result is that, although the worker creates all value, a portion of that value (namely surplus value) is transferred to the capitalist. This transfer of surplus value is the essence of capitalist production, notwithstanding the fact that it is veiled and mystified by the rnarket transactions which mediate it. v Wood and Allen ascribe to Marx a view of justice that makes it unin­ telligible or otherwise impossible for Marx to employ justice as a critical concept, that to assert that the dominant production relations in a society are unjust. If Marx understood not only justice, but all value concepts, in this way, he would be precluded from criticizing capitalist production. Wood rightly rejects this absurd resu It. He attempts to escape it by denying that Marx understood freedom, self-actualization and other potentially critical concepts in the way understood justice. Of course Marx never describes freedom or self-actualization (as he does des­ cribe right and justice) as the correspondence of anything to prevailing produc­ tion relations. But this does not imply he is inconsistent. All it illlplies is that his conceptions of right and justice differ in this respect from his conceptions of freedom and self-actualization. 43 42 Allen, 234 43 Wood [2], 282. 266 Doing Marx Justice Thus on Wood's view, Marx sorts value concepts into two categories: Those like the concept of justice, which are merely 'juridical' concepts applicable only in an acritical way, and those like the concept of free­ dom, which are not at all 'juridical' concepts and may (must?) be used critically. In the foregoing sections I have argued that Marx's concept of justice (or at least one of Marx's concepts of justice) can be, and was by Marx, used critically, to assert that capitalist production is essentially and completely unjust. In conclusion I briefly note that Marx employed the concepts of freedom and self-development 'juridically' as well as critically. In other words, Marx sawall value concepts as having critical and acritical (ideological?) applications. (Or, if it is preferable to put it this way, he sawall value expressions as associated with two sorts of con­ cepts, critical and acritical.) In my earlier paper I discussed at length the concept of freedom associated with capitalist production and the manner in which (on Marx's view) it hides an underlying real slavery.44 A pointed anticipation of this distinction appears in the Communist Manifesto: By freedom is meant, under the present bourgeois conditions of productions, free trade, free selling and buying. But if buying and selling disappears, free selling and buying disappears also. This talk about free selling and buying, and all the other "brave words" of our bourgeoisie about freedom in general, have a meaning, if any, only in contrast with restricted buying and selling, with the fettered traders of the Middle Ages, but have no meaning when opposed to the communist abolition of buying and selling, of the bourgeois conditions of production, and the bourgeoisie itself. 45 This early statement is just as valid in the light of Marx's later work, ex­ cept that in his later work it became clearer that what must be abolished is not (merely?) buying and selling in general, but the buying and selling of labor power. As to self-actualization, a famous passage in the Crundrisse distinguishes three meanings or forms of self-actualization and relates each to a different set of production relations: pre-capitalist, capitalist and social ist. 46 In short, the ruling ideas of each age have ever been the ideas of its ruling c1ass,47 the ideas that legitimize the production relations that 44 'Justice and Capitalist Production,' 446-50. 45 'Communist Manifesto,' in Karl Marx: Political Writings, ed. David Fernbach (New York: 1973) 1,81-2. 46 Grundrisse, 487-8. 47 'Communist Manifesto,' 85. 267 Gary Young make it the ruling class. But the ruling ideas of an age do not exhaust the meaning or content of value expressions. It is possible to criticize a society using the same words its supporters invoke to defend it. 48 Are the of capitalist production 'free'? Nascent capitalists criticize their non-bourgeois societies as unfree because of restrictions on trade, in­ cluding trade in labor. Marx criticized capitalist production as unfree ­ and unjust - because of the forced extraction of surplus labor from the working class, which is made possible by the 'free' market in labor. Capitalist production both liberates and enslaves. It promotes and retards self-actualization. It is just and unjust. But (at least on Marx's view) the positive attributes of capitalist production all inhere in the market, and are absent from the sphere of direct production. It is as buyers and sellers that the agents of capitalist production are 'free,' can 'develop themselves' and are treated 'justly.' Turning from the market to direct capitalist production, however, we see that the working class is enslaved, retarded and robbed. And that, says Marx, is the essense and reality of capitalist production. 48 How this possible? 268 I II III IV v 
work_3irrwsvr6vcufk332kh4bk2txm	----	Does the Justice of the One Interact With the Justice of the Many? Reactions to Procedural Justice in Teams Jason A. Colquitt University of Florida This article reported the results of 2 studies that examined reactions to procedural justice in teams. Both studies predicted that individual members’ reactions would be driven not just by their own procedural justice levels but also by the justice experienced by other team members. Study 1 examined intact student teams, whereas Study 2 occurred in a laboratory setting. The results showed that individual members’ own justice interacted with others’ justice, such that higher levels of role performance occurred when justice was consistent within the team. These effects were strongest in highly interdependent teams and weakest for members who were benevolent with respect to equity sensitivity. Organizations continue to rely on teams as a means of structur- ing work (Devine, Clayton, Philips, Dunford, & Melner, 1999; Lawler, Mohrman, & Ledford, 1995). Teams act as a mechanism for pooling knowledge while placing decision-making authority in the hands of those closest to the work. They also provide a forum for between-person synergy, potentially improving creativity, in- novation, and adaptability. In addition, teams provide flexibility for many production tasks, as members can rotate and substitute for one another during the creation process. Indeed, some tasks require teams simply because of the total resources that must be allocated. From this perspective, team-based cooperation “justifies itself, then, as a means of overcoming the limitations restricting what individuals can do” (Barnard, 1938, p. 23). Teams can be defined as a collection of individuals who work together to complete some task, who share responsibility for col- lective outcomes, and who see themselves and are seen by others as a social entity (Cohen & Bailey, 1997; Guzzo & Dickson, 1996; Hackman, 1987; Sundstrom, DeMeuse, & Futrell, 1990). Teams can be differentiated from other kinds of work groups, such as departments or committees, by the depth and nature of their interdependence. By definition, teams possess two forms of struc- tural interdependence, defined by Wageman (2001) as features of the work context that define a relationship between entities built on mutual dependence. First, teams possess task interdependence— features of the work itself that require multiple individuals to cooperate to complete the work. Second, teams possess outcome interdependence—the degree to which shared rewards or conse- quences are contingent on collective (rather than individual) per- formance (Wageman, 2001). The increased use of teams has both practical and theoretical implications. From a practical perspective, organizations must take steps to ensure that employees are committed to their teams and that they perform their roles adequately. From a theoretical per- spective, scholars must consider the impact that team contexts have on the validity of findings derived from other settings. The team context offers an additional range of stimuli capable of altering members’ beliefs and reactions. In particular, team con- texts result in more intensive social comparisons among individual members because of the increased frequency and importance of team interactions. Consider the role of procedural justice in team contexts. Pro- cedural justice is defined as the fairness of decision-making pro- cesses (Leventhal, 1980; Thibaut & Walker, 1975). It is distinct from distributive justice, which is defined as the fairness of deci- sion outcomes (Adams, 1965; Leventhal, 1976). Past research has illustrated the benefits of procedural justice, which has been linked meta-analytically to a variety of reactions, including job perfor- mance (Colquitt, Conlon, Wesson, Porter, & Ng, 2001). Such results offer straightforward implications for managers: Experienc- ing just treatment can result in tangible improvements in employee reactions. However, a fundamental question relevant in team contexts remains unanswered: Does the justice experienced by other team members affect reactions as well? If so, it is not enough to treat individual members in a just manner—the other members must also enjoy such treatment. Unfortunately, past research has failed to differentiate the effects of individuals’ own justice and their assessment of others’ justice. It is important to understand the relative effects of own and others’ justice because treatment may vary within teams. Teams are becoming more diverse over time, An earlier version of this article was presented in Tom Tyler’s (Chair), Images of Justice in the Eyes of Employees: What Makes a Process Fair in Work Settings?, a symposium conducted at the 2000 meeting of the Academy of Management, Toronto, Ontario, Canada. This work was supported in part by Office of Naval Research Grant N00014 –93– 0983 and the Air Force Office of Scientific Research Grant F49620 –95– 0314 to Michigan State University (John Hollenbeck and Daniel Ilgen, principal investigators). This support does not imply agree- ment or disagreement by the supporting agencies of the ideas expressed herein. This article was based on my dissertation research, conducted at Mich- igan State University. I thank my advisor, John Hollenbeck, for his guid- ance and support. I also thank the other members of my dissertation committee—Donald Conlon, Raymond Noe, and Daniel Ilgen—for their valuable insights and suggestions. I thank Aleksander Ellis, Henry Moon, Bradley West, and Lori Sheppard for their assistance in data collection. Correspondence concerning this article should be addressed to Jason A. Colquitt, Department of Management, Warrington College of Business Administration, University of Florida, P.O. Box 117165, Gainesville, FL 32611–7165. E-mail: colquitt@ufl.edu Journal of Applied Psychology Copyright 2004 by the American Psychological Association 2004, Vol. 89, No. 4, 633– 646 0021-9010/04/$12.00 DOI: 10.1037/0021-9010.89.4.633 633 with members possessing different functions, backgrounds, or demographic characteristics (Williams & O’Reilly, 1998). More- over, team leaders are often advised to dole out influence, support, and attention on a dyad-by-dyad basis (Gerstner & Day, 1997; Graen & Scandura, 1987). These factors increase the likelihood that own and others’ justice will differ, despite the fact that they possess two common causes (the team’s leader and the organiza- tion’s formal procedures). This article reports the results of two studies examining the effects of own and others’ justice on role performance in team contexts. The general proposition guiding this research was that the highest levels of role performance would be demonstrated when own and others’ justice were consistent within the team. Study 1 examined these effects in the context of ongoing student project teams, whereas Study 2 manipulated justice levels in a laboratory setting. Procedural Justice in Teams The procedural justice construct was introduced by Thibaut and Walker (1975) in their writings on conflict resolution procedures. Thibaut and Walker argued that procedural justice is fostered by allowing disputants to control the evidence presented during a procedure and by allowing them to influence the actual resolution decision. Specifically, they argued that “On the whole, distribution of control appears to be the best predictor of fairness and therefore of the preference for procedures” (p. 121). This control-based view has been one of the most popular conceptualizations of procedural justice for the past 2 decades (Colquitt et al., 2001) and has widespread applicability. For example, research has repeatedly shown that allowing employees to complete self-appraisals can enhance the perceived fairness of performance evaluation proce- dures (Gilliland & Langdon, 1998). Whereas Thibaut and Walker (1975) essentially equated proce- dural justice with control, Leventhal (1980) suggested that proce- dural justice can be fostered by adhering to six rules of fair treatment. Specifically, procedures should be (a) consistent across people and time, (b) based on accurate information, (c) unbiased, (d) correctable, (e) representative of all groups’ concerns, and (f) ethical. Leventhal’s rules also have widespread applicability. For example, employees view compensation systems as more fair when pay-raise decisions are performed consistently across people and are based on valid, accurate information (Miceli, 1993). The results of a recent meta-analysis of 183 studies conducted between 1975 and 2000 supported the relationship between control or rule-based criteria and procedural fairness perceptions (Colquitt et al., 2001). This review also linked procedural justice (whether operationalized in terms of control-based criteria, rule-based cri- teria, or fairness perceptions) to job satisfaction, organizational commitment, trust, citizenship behavior, and job performance. Although such outcomes would certainly seem valuable in team contexts, most of the studies included in the meta-analysis lacked the structural interdependence that defines teams. A handful of studies have begun to generalize these relation- ships to team contexts in which individuals possess both task and outcome interdependence. For example, Korsgaard, Schweiger, and Sapienza (1995) examined procedural justice in the context of laboratory decision-making teams. They linked control-based jus- tice to member attachment to the team, commitment to team decisions, and trust in the leader. Phillips and colleagues also examined the effects of procedural justice in laboratory teams (Phillips, 2002; Phillips, Douthitt, & Hyland, 2001). They linked control-based procedural justice to members’ satisfaction with the leader, attachment to the team, and efficacy perceptions. Finally, Colquitt and colleagues linked rule-based justice to member com- mitment and helping behavior, along with team performance and absenteeism (Colquitt, 2001; Colquitt, Noe, & Jackson, 2002). Although these studies have proven valuable in generalizing justice relationships to team contexts, they failed to consider a vital question: Does the justice experienced by others affect members’ own reactions? Five studies are relevant to this question, each of which relied on a control-based operationalization of procedural justice. Three of the studies followed a paradigm in which a participant was either given or denied some form of control over the experimental task, as was some unseen fictional other (Am- brose, Harland, & Kulik, 1991; Ambrose & Kulik, 1989; Grien- berger, Rutte, & van Knippenberg, 1997). Two of the studies failed to yield significant effects for others’ justice on reactions such as satisfaction and intentions to quit the activity (Ambrose et al., 1991; Ambrose & Kulik, 1989). The third study found a significant interaction between own and others’ justice such that the least favorable reactions occurred when own justice was low and others’ justice was high (Grienberger et al., 1997). Two studies by Lind, van den Bos, and colleagues have also examined the effects of own and others’ justice. In Lind, Kray, and Thompson’s (1998) study, 3 participants took part in a computer simulation in which they needed to make suggestions to a confed- erate supervisor. Own and others’ procedural justice were manip- ulated by responding to the suggestions with affirmative messages (granting control) or negative messages (denying control) and by allowing those responses to be viewed by all 3 participants. None of the manipulations affected performance on the task, and others’ justice had only weak effects on ratings of the supervisor. A follow-up study by van den Bos and Lind (2001) manipulated own and others’ justice using both control and rule-based operational- izations. Their results showed that participants’ affective reactions were higher when own and others’ justice were both high. These five studies provide only equivocal support for others’ justice affecting members’ own reactions. The predicted interac- tion has often been nonsignificant, and effects have never been observed for behavioral (as opposed to attitudinal) reactions. Those studies that have examined the Own � Others’ Justice interaction have used social comparisons as the theoretical mech- anism—a mechanism that has a long history in the justice litera- ture. Relative deprivation theory suggests that individuals react to subjective realities rather than objective realities by basing griev- ances on social comparisons (Crosby, 1984). Equity theory sug- gests that individuals do not react just to their own ratios of outcomes to contributions—they compare their personal ratios with those of some comparison other (Adams, 1965). These theories would predict that members would react more favorably when their own justice matches the levels experienced by others. It is interesting, however, that the social comparison mechanism has rarely been applied to procedural justice. Thibaut and Walker (1975) and Leventhal (1980) seemed to suggest that control-based and rule-based criteria are judged objectively, in absolute rather than relative terms. Indeed, Cropanzano and Am- brose (2001) noted, “In practice, this suggests that procedural 634 COLQUITT fairness is inferred relative to a theoretical standard, whereas distributive justice is inferred relative to a referent standard” (p. 136). Recent theorizing has begun to deemphasize this distinction. For example, referent cognitions theory was used to ground the pre- dictions of Ambrose et al. (1991) and Grienberger et al. (1997). The theory predicts that individuals consider referent outcomes— which compare the decision event with other easily imagined outcomes—when formulating their reactions (Folger, 1986, 1987). As the theory has evolved, Folger has acknowledged that referent outcomes can actually concern procedural phenomena, as when an individual imagines what would have happened if more control had been granted during a decision-making process (Folger, 1993). Fairness theory, a subsequent model derived from referent cog- nitions theory (Folger & Cropanzano, 1998, 2001), also acknowl- edges that social comparisons play a role when reacting to proce- dural information. Fairness theory restructures the referent cognitions mechanisms around the concept of counterfactual thinking—a process that forms mental representations of “what might have been.” These counterfactuals are built from several ingredients, including speculation, past experiences, norms, and social comparisons. Fairness theory’s counterfactuals ask whether an event could have played out differently, whether the authority should have behaved differently, and whether the member would have been better off if one of those alternatives had occurred instead. These questions are asked for both procedural issues and distributive issues. Thus fairness theory provides mechanisms that allow for social comparisons of procedural phenomena within teams. One should consider the example of a team working on a decision-making task. Past research has shown that control-based operationalizations of procedural justice are associated with mem- ber attachment to the team, commitment to team decisions, and trust in the team’s leader (Korsgaard et al., 1995; Phillips, 2002; Phillips et al., 2001). Now let one consider the reactions of an individual team member who is afforded little influence over the leader’s final decision. Will that member’s reactions depend on whether other members are granted similarly low levels (or mark- edly higher levels) of control? If social comparisons do occur for procedural phenomena, then an interactive effect of own and others’ justice should be observed. Figure 1 represents the predicted form of this interaction effect. The traditional main effect of a member’s own procedural justice is qualified by an interaction with others’ justice. When others’ justice is high, higher levels of own justice are associated with more beneficial reactions. However, when others’ justice is low, higher levels of own justice do not have beneficial effects. Taken together, the interaction is such that more beneficial effects occur when justice is consistent within the team. That is, outcomes are higher when members’ own justice levels match the levels of others’ justice (i.e., when both are high or both are low). This proposed effect forms the foundation for the two studies discussed in the remainder of this article. Study 1 Study 1 examined the effects of own and others’ justice in the context of student project teams. The interaction in Figure 1 was tested using member role performance as the dependent variable. Because past research on justice in team contexts has relied pri- marily on attitudinal outcomes, it remains unknown whether pro- cedural justice can alter the performance of team members. This is a critical question, because the success of the team often depends on the role performance of all members or even the weakest member (Steiner, 1972). Fortunately, procedural justice has been meta-analytically linked to performance, as Colquitt et al. (2001) found a corrected correlation of .36 between the two variables. Thus the following hypothesis was tested, consistent with Figure 1: Hypothesis 1: The positive relationship between own proce- dural justice and role performance will be moderated by others’ procedural justice, such that own role performance will be higher when justice is consistent within the team than when justice is not consistent within the team. Contextual and Individual Moderators It is important to note that Hypothesis 1 is advanced despite the inconsistent findings of past research. An important contribution of this article lies in the examination of potential moderators that could explain those inconsistencies and establish boundary condi- tions for the interaction effect. The choice of moderators was guided by the following question: What variables could enhance or neutralize the role of social comparisons within teams? Both studies included contextual and individual moderators to capture both sides of the person–situation distinction. Two specific mod- erators were examined in Study 1: task interdependence and collectivism. Task Interdependence As noted above, teams possess structural interdependence by definition in the form of task and outcome interdependence (Cohen & Bailey, 1997; Guzzo & Dickson, 1996; Hackman, 1987; Sund- strom et al., 1990). Of course, interdependence is not a dichotomous variable that teams either possess or lack. Wageman (2001) reviewed several conditions that can combine to make task interdependence levels more or less intense. In particular, task interdependence de- pends on the following four factors: (a) how the task is defined to the team, (b) what kinds of rules or instructions are given to the team, (c) the physical technology of the task, and (d) the degree to which necessary skills, resources, or abilities are spread among the group (Wageman, 2001). Thus, teams possess particularly high levels of interdependence when their task is defined in collective terms rather than by someFigure 1. Predicted pattern of Own � Others’ Procedural Justice interaction. 635REACTIONS TO PROCEDURAL JUSTICE division of labor, when rules or instructions require collective meetings or procedures, when the technology demands simulta- neous action, and when the inputs to the work are distributed such that everyone must contribute. It is important to note that Wage- man (2001) further argued that teams can take their structural interdependence and alter it through their actions. This point captures the distinction between structural interdependence and behavioral interdependence—the amount of task-related interac- tion actually engaged in (Wageman, 2001; see also Kiggundu, 1981). Teams with high structural interdependence may or may not exhibit high levels of behavioral interdependence and vice versa. Task interdependence should amplify the effect in Figure 1 by increasing the likelihood of social comparisons between a member and his or her teammates. Members working in highly interdepen- dent conditions must attend to and monitor their teammates to a greater degree (Kiggundu, 1981; Wageman, 2001). Thus task interdependence increases the visibility and salience of teammates’ treatment. It also increases discussion among members, which provides an opportunity for judging the justice received by others (Lind et al., 1998). Thus task interdependence should make it more likely that a member will notice when justice varies. Task interdependence should also foster a norm of equal treat- ment. Barrett-Howard and Tyler (1986) examined situations that make specific justice rules more or less important to justice judg- ments. Leventhal’s (1980) consistency rule was judged to be most important in task versus socially focused interaction, in formal versus informal interaction, and in cooperative versus competitive inter- action. This suggests that consistency with respect to justice should be especially critical under task-interdependent conditions, which are characterized by formal, cooperative, task-based interactions. Hypothesis 2: The benefits of consistency (in terms of the Own Procedural Justice � Others’ Procedural Justice inter- action in Hypothesis 1) for own role performance will be stronger when task interdependence is high than when task interdependence is low. Collectivism Collectivism can be defined as a social pattern in which indi- viduals see themselves as part of one or more collectives and are motivated by the norms, duties, and goals of those collectives (Triandis, 1995). The visibility of the construct was boosted by Hofstede’s (1980) study in which employees in a large multina- tional corporation answered questions about the importance of various work goals. Hofstede derived a collectivism factor from the survey and used the mean factor scores to create a national index of collectivism. A recent meta-analytic review revealed that between-culture differences in collectivism do exist but that the differences are smaller and less systematic than previously be- lieved (Oyserman, Coon, & Kemmelmeier, 2002). Triandis, Leung, Villareal, and Clack (1985) were among the first to examine collectivism at the individual level of analysis. They argued that allocentrism is a psychological variable that corresponds to the cultural version of collectivism. Allocentric individuals can be found in highly collective countries, such as Venezuela or Columbia, but can also be found in less collective countries, such as the United States or Australia. Subsequent research has dropped the allocentrism label in favor of collectiv- ism, though the term psychological collectivism is sometimes used to denote the individual-level version of the construct (e.g., Hui, Triandis, & Yee, 1991). Regardless of labeling, past research has conceptualized the construct using multiple dimensions (e.g., pref- erence for group work, concern for the group, willingness to sacrifice for the group; Earley, 1993; Triandis, Bontempo, Vil- lareal, Asai, & Lucca, 1988; Wagner, 1995) and has linked it to a variety of group-benefiting behaviors (Earley, 1989; Gibson, 1999; Moorman & Blakely, 1995). As with task interdependence, high levels of psychological collectivism should amplify the interaction effect in Figure 1 by increasing the likelihood of social comparisons between a member and his or her teammates. Gibson (1999) suggested that collective group members have an enhanced memory for team-relevant in- formation and a greater tendency to share such information with other members. Individuals who score high on collectivism also communicate more with in-group rather than out-group members and identify more with the collectives to which they belong (Tri- andis, 1995). Indeed, they are more likely to communicate using pronouns such as we rather than I (Triandis, 1995). Thus, collec- tive members should be more likely to notice when justice varies within the team. Past research also suggests that collective individuals value within-group consistency in treatment to a greater degree. Hui et al. (1991) showed that psychological collectivism is positively related to preferences for egalitarian rewards. Similarly, Ra- mamoorthy and Carroll (1998) showed that collective individuals are more accepting of alternative human resources practices such as equality in rewards. Finally, Waldman (1997) showed that members holding collective tendencies were more likely to prefer a group-based performance appraisal. On the basis of these results, I believed that collective members would be more likely to object to inconsistencies within the team. Hypothesis 3: The benefits of consistency (in terms of the Own � Others’ Procedural Justice interaction in Hypothesis 1) for own role performance will be stronger when members are high in collectivism than when members are low in collectivism. Method Participants Participants were 314 undergraduates (123 men and 191 women) en- rolled in an introductory management course at a large state university. All participants received course credit in exchange for their participation. Procedure The study was conducted in the context of five-person student project teams in an undergraduate management course. The teams were randomly composed at the beginning of the semester and worked together, both in and out of class, over the entire term. Teams worked on four exercises, each worth 10 points, and one semester-long project worth 80 points. The total available points in the class were 400, meaning that 30% of the students’ points were a function of their team’s work. This percentage created the kind of outcome interdependence that is considered a defini- tional part of being in a team (Cohen & Bailey, 1997; Guzzo & Dickson, 1996; Hackman, 1987; Sundstrom et al., 1990). 636 COLQUITT The four exercises covered the following content areas: selection, train- ing and development, performance management, and compensation. The exercises consisted of creating or improving one of these human resources systems, with the group turning in a single report summarizing and dis- cussing their views and opinions. These reports typically required at least 2 hr of work, much of it spent outside of class. The semester-long project required the teams to create an integrative paper that tied together all of the content domains of the course. The assignments created structural interdependence in two respects: (a) Outcome interdependence was created through a collective output with a collective (as opposed to individual) reward, and (b) task interdependence was created by defining the assignments as team (as opposed to individual) assignments. Still, behavioral interdependence varied across teams because instructions were not used to govern team processes, the physical technol- ogy (i.e., a computer) did not require collective action, and the distribution of relevant skills and abilities varied across teams. Thus, some teams completed the bulk of their work in combined face-to-face meetings whereas other teams split up the assignment and worked more independently. The justice, task interdependence, and collectivism measures were ad- ministered as part of a survey given to students in class. Students were assured that their instructor would receive only aggregated feedback re- garding the survey once the semester was complete. The procedural justice items referenced the grading procedures used to decide assignment grades. The timing of the survey was 1 week prior to the final exam, just after the teams had been given the last of their project grades. Thus, all team points had been allocated, and the majority of the overall course’s points had been allocated as well (the final exam was 25% of the grade). Given that the instructors were the ones computing the grades, the procedural justice items also referenced the instructors as the enactors of the procedures. Measures All measures used a 5-point scale ranging from 1 (strongly disagree) to 5 (strongly agree). Role performance. Performance was measured by five-item peer as- sessments that were completed at home and turned in just before the final exam. The instructors used the measure to gauge contributions to the project. Each member was rated by all 4 of his or her teammates, and members did not rate themselves. Two items assessed beneficial behaviors: “This member did his/her fair share of the work” and “This member was valuable to the group.” The other three items assessed negative behaviors and were reverse scored: “This member let other group members do most of the work,” “This member did not cooperate well with the group,” and “This member was not valuable to the group.” Interrater reliability for the five peer-rated items was assessed using the single-measure form of the intraclass correlation (ICC(1); James, 1982; Shrout & Fleiss, 1979). Each of the k ratees assumed the role of a treatment in a one-way analysis of variance (ANOVA), with raters (who were nested under the ratees) providing scores on the five items. The magnitude of the ICC(1) can be interpreted as the reliability associated with a single assess- ment of the ratee’s performance, with high values being in the .30 area (Bliese, 2000). The ICC(1)s for the role performance items were all high: .39 for Item 1, .30 for Item 2, .38 for Item 3, .44 for Item 4, and .40 for Item 5. Within-group agreement was assessed using the rwg index created by James, Demaree, and Wolf (1984; see also Lindell, Brandt, & Whitney, 1999). Unlike ICC(1), rwg considers only within-rater variance by com- paring agreement among raters with what would be expected from random ratings. The rwg(j) allows for the examination of within-group agreement at the scale (as opposed to the item) level, with aggregation usually supported by a mean rwg(j) above .70. The role performance scale had an rwg(j) of .91, again supporting aggregation across raters. The scale had a coefficient alpha of .93. Own procedural justice. Procedural justice was operationalized using what Lind and Tyler (1988) termed a direct measure. Specifically, mem- bers’ own procedural justice was assessed with the following two items (� � .73): “The grading procedures which decide my own individual grades have been fair” and “My instructor has treated me fairly.” Others’ procedural justice. Others’ procedural justice was assessed with two similar items (� � .78): “The grading procedures which decide my teammates’ grades have been fair” and “My instructor has treated my teammates fairly.” Task interdependence. Task interdependence was measured using the following two items taken from Johnson, Johnson, Buckman, and Richards (1988; � � .75): “When we worked together in our group, we could not complete the exercise unless everyone contributed” and “When we worked together in our group, everyone’s ideas were needed if we were going to be successful.” Collectivism. Collectivism was measured using three items taken from Wagner (1995; � � .68): “I prefer to work with others in a group rather than working alone,” “Given the choice, I’d rather do a job where I can work alone, rather than doing a job where I have to work with others in a group,” (reverse scored) and “Working with a group is better than working alone.” The collectivism literature has been plagued by measurement problems, and a recent review pointed to the good psychometric properties of this measure (Earley & Gibson, 1998). However, it is important to note that this measure captures only one dimension of a multidimensional construct. Control variables. Perceptions of distributive fairness were gathered as a control variable to avoid potential unmeasured variable problems. Four ad hoc items were used (� � .93), including “How justified is your grade given your performance in this class?” and “How much do you agree with your grade, given what you have contributed to the class?” (items were measured using a 5-point scale ranging from 1 � not at all to 5 � very much). Results and Discussion The means, standard deviations, and correlations for all vari- ables are shown in Table 1. The study’s hypotheses were tested using moderated regression, with the results shown in Table 2. In the first step of the regression, I controlled for the effects of distributive fairness. In the second step, I tested the direct effects of own and others’ procedural justice, and neither effect was significant. The test of Hypothesis 1 occurred in Step 3, in which I entered the Own � Others’ Procedural Justice interaction. The interaction had a significant effect on role performance. The plot of the interaction effect closely resembles Figure 1. High levels of own procedural justice had more positive effects when others were also afforded high levels (i.e., when justice was consistent within the team), supporting Hypothesis 1. In Step 4 of the regression I examined the main effects of the two moderators, and neither had significant effects. In Step 5 I entered all possible two-way interactions, which had to be entered before examining the three-way interactions used to test Hypoth- eses 2 and 3. The set of two-way interactions had a significant effect, driven by the interaction of others’ procedural justice with task interdependence and collectivism. Although not the subject of any hypotheses, these interactions indicated that others’ justice had stronger effects on role performance when task interdependence or collectivism was high. Finally, in Step 6 I entered the three-way interactions. As a set, the interactions had a significant effect, driven by the three-way interaction of own procedural justice, others’ procedural justice, and task interdependence. The plot of this interaction is shown in Figure 2. Differences in own and others’ procedural justice had much stronger effects on role performance when task interdepen- 637REACTIONS TO PROCEDURAL JUSTICE dence was high, supporting Hypothesis 2. The three-way interac- tion with collectivism was not significant, failing to support Hy- pothesis 3. Study 2 Although the results of Study 1 were supportive, some limita- tions should be noted. First, a correlational design was used, making it impossible to say that the interaction of own and others’ justice caused variation in role performance. Second, procedural justice was assessed globally, making it difficult to compare the results of Study 1 with past research, most of which has relied on control-based operationalizations (e.g., Ambrose et al., 1991; Grienberger et al., 1997; Lind et al., 1998). Third, the measure of role performance was a peer report focusing on contributions, as opposed to an objective bottom-line outcome. Finally, only one type of reaction was examined. Although member role perfor- mance is undoubtedly important, it is necessary to consider other types of reactions. Study 2 addressed each of these limitations. An experimental design was utilized to manipulate both own and others’ procedural justice using the control-based operationalization used in past research. Moreover, multiple outcomes were examined, including procedural fairness perceptions, cooperation, conflict, and an ob- jective measure of role performance. The same general prediction as in Study 1 was tested in Study 2, that the main effect of members’ own justice would be qualified by an interaction with others’ justice. Hypothesis 4: The positive effect of own procedural justice on fairness perceptions, cooperation, conflict, and role perfor- mance will be moderated by others’ procedural justice, such that more favorable reactions will occur when justice is consistent within the team than when justice is not consistent within the team. Contextual and Individual Moderators Although the interaction of own and others’ justice received support in Study 1, one should remember that past research remains inconsistent in its findings. Thus moderators of this effect were again examined. As in Study 1, the moderators focused on variables that should increase the likelihood of Table 1 Descriptive Statistics and Zero-Order Correlations for Study 1 Variable M SD 1 2 3 4 5 6 Justice variables 1. Own justice 4.10 0.74 — 2. Others’ justice 4.07 0.80 .69* — Moderators 3. Task interdependence 2.95 1.00 .08 .03 — 4. Collectivism 2.93 0.67 �.07 �.03 .15* — Outcome variable 5. Role performance 4.55 0.46 .10* .08 �.03 �.02 — Control variable 6. Distributive fairness 3.69 0.94 .50* .33* .01 .01 .10* — Note. N � 282 after listwise deletion. * p � .05, one-tailed. Table 2 Moderated Regression Results for Study 1 Regression step Role performance R2 �R2 � 1. Distributive fairness .01 .01 0.10 2. Own justice .01 .00 0.06 Others’ justice 0.02 3. Own Justice � Others’ Justice .03* .02* 0.60* 4. Task interdependence .03 .00 �0.03 Collectivism �0.00 5. Own Justice � Task Interdependence .09* .06* �0.31 Others’ Justice � Task Interdependence �0.98* Own Justice � Collectivism 0.33 Others’ Justice � Collectivism 1.24* 6. Own Justice � Others’ Justice � Task Interdependence .11* .02* 2.69* Own Justice � Others’ Justice � Collectivism 0.08 Note. N � 282 after listwise deletion. * p � .05. 638 COLQUITT social comparisons within teams. The contextual moderator was again task interdependence, and the individual moderator was equity sensitivity. Task Interdependence Study 2 attempted to replicate the effect shown in Figure 2, in which task interdependence amplified the effects of differences in own and others’ justice. I hypothesized that task interdependence should increase the likelihood of social comparisons within the teams by increasing the attention devoted to other members (Kig- gundu, 1981; Wageman, 2001) while fostering a norm of equal treatment (Barrett-Howard & Tyler, 1986). Hypothesis 5: The benefits of consistency (in terms of the Own � Others’ Procedural Justice interaction in Hypothesis 4) for fairness perceptions, cooperation, conflict, and role performance will be stronger when task interdependence is high than when task interdependence is low. Equity Sensitivity Equity sensitivity is a stable characteristic that assesses one’s preferences for and sensitivity to various equity levels (Huseman, Hatfield, & Miles, 1987; King, Miles, & Day, 1993; Miles, Hat- field, & Huseman, 1989). Equity sensitivity can be conceptualized using two ends of a continuum. At one end is the benevolent pattern, characterized by a tolerance for situations in which ratios of inputs to outcomes do not match those of a comparison other (Huseman et al., 1987). Individuals high in benevolence are more focused on ensuring that their inputs are adequate and do not attend to outcomes as much as other individuals (King et al., 1993). At the other end is the entitled pattern, characterized by an intolerance of underreward situations. Individuals near this end of the equity sensitivity continuum are more focused on the receipt of outcomes and are less forgiving of any outcome inconsistencies (King et al., 1993). Similar to collectivism, equity sensitivity is an individual dif- ference that should affect the likelihood of social comparisons between a member and his or her teammates. Huseman et al. (1987) initially suggested that benevolents are “givers,” whose happiness is maximized when they are underrewarded relative to peers and minimized when they are overrewarded relative to peers (p. 225). This matches the lay definition of benevolence and is also congruent with the use of the term in the trust literature (Mayer, Davis, & Schoorman, 1995). However, subsequent research sug- gests that this conceptualization is too limited. King et al. (1993) showed that benevolent individuals reported higher levels of sat- isfaction than did entitled individuals in both overreward and underreward inequity conditions. King et al.’s (1993) findings suggest that benevolent individuals either engage in fewer social comparisons or are less affected by the social comparisons that they do make. Given the implications of equity sensitivity for reactions to under- or overreward circum- stances, it seems logical that equity sensitivity could alter reactions to differences in procedural justice. However, equity sensitivity has been used only in relation to outcome distributions and never in relation to procedural variables. Thus in the current study I attempted to generalize King et al.’s findings to procedural differences in teams. Hypothesis 6: The benefits of consistency (in terms of the Own � Teammates’ Procedural Justice interaction in Hy- pothesis 1) for fairness perceptions, cooperation, conflict, and role performance will be weaker for more benevolent mem- bers than for more entitled members. Method Participants Participants were 300 undergraduates (164 men and 136 women) en- rolled in an introductory management course at a large state university. Participants signed up for time slots during the first day of the course, with slots limited to eight people. They waited in a lobby on arriving at the laboratory, and teams were randomly formed from the participants present. Two experimental sessions could be run at one time, and any additional participants took part in an overflow study. All participants received course credit in exchange for their participation and were given a chance to earn a small cash incentive ($10) based on their team’s performance. This incentive was given to the participants in the top three teams within each of the experimental conditions (around 18% of the teams). The use of the incentive encouraged a baseline level of motivation and psychological engagement on the part of the participants. Task Participants worked on a special version of the Team Interactive Deci- sion Exercise for Teams Incorporating Distributed Expertise (TIDE2) com- puter simulation. An extensive description of this task is given in Hollen- beck et al.’s study (1995). Four participants, termed Alpha, Bravo, Charlie, and Delta, served as a team and were stationed at networked computer terminals. Participants were required to classify aircraft as friendly or threatening on the basis of nine pieces of aircraft information (size, speed, range, altitude, direction, angle, radar type, frequency, direction, and cor- ridor position). It was explained that this task was modeled after the one performed by Air Force command and control teams. Bravo, Charlie, and Delta (who were referred to as staff members) provided classification recommendations to the team leader, Alpha. Alpha was actually one of the experimenters serving as a confederate. Bravo, Charlie, and Delta were each responsible for gathering four of the nine pieces of aircraft information, and they were given extensive training on how to transform information values into probable threat levels. For example, Bravo was responsible for gathering size, speed, radar type, and frequency information and was trained on what types of values were Figure 2. Own � Others’ Justice � Interdependence interaction for performance (Study 1). 639REACTIONS TO PROCEDURAL JUSTICE threatening (e.g., smaller aircraft were more threatening). Participants gathered some of their information by using their Measure menu, which instantly provided information values to them. However, participants could measure only a subset of their assigned information, and they depended on their teammates to provide them with the remainder. For example, Bravo could measure size, range, direction, and corridor position but was in charge of interpreting only size. Bravo relied on Charlie and Delta to provide information on Bravo’s other assigned information (speed, radar type, and frequency) by sending that information through the network. In turn, Bravo provided Charlie and Delta with the range, direction, and corridor position information they required. Team members were explicitly instructed that all pieces of information were equally important (i.e., speed information was not any more useful than was radar type information) and were informed that Alpha was so instructed as well. This instruction was given to prevent participants from attributing their levels of control to the set of information they gathered. Team members were also told that Alpha could measure all nine pieces of information independently but was given only very general training on how to interpret the values. They were also told not to request information from Alpha, because he or she had to fulfill other duties as team leader and may not have time to respond to them. In addition, all team members could type text messages to one another through the computer network. Messages from Alpha were sent to all 3 staff members simultaneously and were visible to all team members. Once Bravo, Charlie, and Delta had studied the four pieces of information they were in charge of interpreting, they made recommendations to Alpha in terms of a probable aircraft threat level. Their recommendations took the form of a course of action on a 7-point continuum of aggressiveness (1 � ignore, 2 � review, 3 � monitor, 4 � warn, 5 � ready, 6 � lock-on, and 7 � defend). For example, if Bravo’s size and speed information were moder- ately threatening and the frequency and radar type information were very threatening, he or she would likely recommend a ready or a lock-on to Alpha. Once Bravo, Charlie, and Delta had each made his or her recom- mendation, Alpha combined those recommendations to form one final team decision. This combination was performed using a script that manipulated the extent to which specific members’ recommendations were considered. Once Alpha registered the final decision, that decision was compared with the correct one. Teams were given feedback via the computer on the absolute difference between the team’s final decision and the correct decision. No difference was termed a hit, a 1-point difference was a near miss, a 2-point difference was a miss, a 3-point difference was an incident, and a 4-point or more difference was a disaster. This same process was then repeated for 36 trials, including 3 practice trials. Trials alternated between 150 s and 120 s in length. In addition to the decision-accuracy feedback, team members were given bogus feedback on the correlation between their recommendation and Alpha’s final decision over the course of the trials. This feedback took the form of a green bar that used a scale ranging from 0 (no correlation) to 1 (a perfect correlation). This form of feedback has been used in past research using TIDE2 (Hollenbeck, Ilgen, LePine, Colquitt, & Hedlund, 1998; Phillips, 2002). In the current study, the green bars were scripted to achieve specific levels depending on the experimental condition, and each member’s bar was viewable by the entire team. Manipulations The manipulations formed a 2 (own procedural justice: high or low) � 2 (others’ procedural justice: high or low) � 2 (task interdependence: high or low) design. Own procedural justice. Own procedural justice was manipulated by providing members with varying levels of control over the team’s final decisions. The manipulation assumed three forms. First, the script used by the confederate to combine Bravo’s, Charlie’s, and Delta’s recommenda- tions into one overall decision weighed members’ recommendations as 1.63 in the high condition and 0.38 in the low condition.1 Whereas participants could, to some extent, naturally perceive how much they were being weighed by the leader, the manipulation also provided feedback on the size of those weights via the green bars mentioned above. In the high condition, the bars centered around an 8-cm length, whereas in the low condition the bars centered around a 2-cm length. Third, the manipulation used text messages transmitted from the confederate to Bravo, Charlie, and Delta indicating the presence of control, similar to the justice manipulation used by Lind et al. (1998). Sample messages were “BRAVO: I leaned toward your call on that one” and “CHARLIE: I leaned toward your input there.” In designing the messages, great care was taken to ensure that the messages sounded neutral rather than overly respectful and did not explain the reasons behind the presence of control, ensuring that the procedural justice manipulation was not confounded with interactional justice (Bies & Moag, 1986). In the high condition the participants received six text messages (three between Trials 10 and 19 and three between Trials 20 –36), whereas in the low condition the participants received zero messages.2 Others’ procedural justice. Others’ procedural justice was manipu- lated by varying the levels of control given to a member’s teammates. Control was manipulated in the same three forms: the weights that Alpha used to combine members’ recommendations, the green bars assigned to members’ stations, and the text messages sent to the members. As in Lind et al.’s (1998) study, participants could read messages sent to them by Alpha and could also read messages sent to their teammates by Alpha. It was explained that this type of monitorable communication is used by real Air Force teams. The same levels were used to create the following high and low levels of justice: 1.63 versus 0.38 weights, 8- versus 2-cm green bars, and six versus zero text messages. Twenty 3-person teams were run under the uniformly high control condition. The 60 participants in these teams were in the high own justice– high others’ justice condition. Twenty 3-person teams were run under the uniformly low control condition. The 60 participants in these teams were in the low own justice–low others’ justice condition. Sixty 3-person teams were run under the varying control condition. Sixty of these 180 team members received more control than did either of their team- mates and were in the high own justice–low others’ justice condition. Sixty of these 180 team members received less control than did either of their teammates and were in the low own justice– high others’ justice condition. The remaining 60 participants received more control than did one of their team- mates but less control than did the other (with weights of 1.00, green bars of 5 cm, and three messages). These 60 participants were therefore omitted from the 2 � 2 design. Thus all analyses were based on N � 240 participants.3 1 The relative magnitudes of these recommendation weights were scaled to be 1 standard deviation higher and 1 standard deviation lower than the average weights from past studies using the TIDE2 simulation (Hollenbeck, Colquitt et al., 1998; Hollenbeck, Ilgen et al., 1998). 2 These frequencies were also based on past research using the TIDE2 simulation (Hollenbeck, Colquitt et al., 1998; Hollenbeck, Ilgen et al., 1998). 3 These “in-between” participants received intermediate levels of con- trol. Their recommendations were weighed 1.00 by Alpha, their green bars were 5 cm in length, and they received three text messages. Exploratory analyses revealed that the 60 in-between participants did not differ from the remaining 240 participants on any of the four dependent variables. Thus there was no effect for being “in between” versus not “in between.” However, these participants did feel significantly more fairly treated than did the low own control– high teammates’ control participants, t(298) � 4.34; M � 3.49 versus 3.06; p � .01, and they felt significantly less fairly treated than did the high own control– high teammates’ control partici- pants, t(298) � –2.42; M � 3.49 versus 3.73; p � .05. The in-between participants also felt less conflict than did the low own control–low teammates’ control participants, t(298) � –2.19; M � 1.99 versus 2.20; p � .05, and the low own control– high teammates’ control participants, t(298) � �1.90; M � 1.99 versus 2.17; p � .06. 640 COLQUITT Task interdependence. Task interdependence was manipulated by varying the degree to which members depended on their teammates in gathering their assigned information. In high task-interdependence condi- tions, team members could measure only one of the four pieces of infor- mation they were in charge of gathering. This meant that they relied on their teammates to send them the other three pieces of information. One of those pieces of information could be delivered by either teammate and the other two could be delivered only by one specific teammate. In low task-interdependence conditions, team members could measure three of the four pieces of information they were in charge of gathering, meaning that they relied on their teammates for only one piece of information. That piece came from one specific teammate. In Wageman’s (2001) terms, the ma- nipulation affects structural task interdependence by altering the distribu- tion of resources and information among individuals. Procedure Four participants were brought into one of the computer rooms where they filled out a consent form. One of the participants was then led from that room to another room, ostensibly to fill the role of Alpha. It was explained that Alpha would be separated from the other 3 team members because actual Air Force teams are characterized by geographic separation. In reality, this person then took part in a separate research study. The three remaining participants then received a booklet that provided an overview of the decision-making task. After reading the booklets for 10 min, the participants were given 45 min of training consisting of three practice trials. Participants next completed a survey including the measure of equity sensitivity. The simulation then began with Trial 4, at which point the experimenter left the room and assumed the role of Alpha (previously filled by another member of the research laboratory’s staff). During these initial trials, the green bars gradually drifted toward their manipulated level, arriving there on Trial 10. On Trial 9, Alpha sent all participants a text message asking them to input their recommendations in a timely manner (“ALL: I need about 20 –30 seconds to look at everything”). The halfway point of the experiment was reached on Trial 19, after which there was a short inter- mission to fill out a survey that included the justice condition manipulation check items and the measure of fairness perceptions. Participants then completed the remaining trials (Trials 20 –36). After the final trial they were given a final survey, which included the measure of conflict. Partic- ipants were then given a general debriefing, which was supplemented by a full debriefing at the conclusion of the semester. Measures Procedural fairness. Procedural fairness perceptions were assessed with five items (� � .71). Samples included “The procedure Alpha has used to make the final team decision has been fair to me,” “The way Alpha has made the final team decision has been fair to me,” and “The procedure Alpha has used in making the final team decision has been free of bias.” (1 � strongly disagree to 5 � strongly agree). Conflict. The seven-item measure used by Saavedra, Earley, and Van Dyne (1993) was used to assess conflict (� � .79). Samples included “I found myself unhappy and in conflict with members of my group,” “I found myself in conflict with other group members because of their actions (or lack of actions),” and “There was a lot of tension between myself and others in the group.” (1 � strongly disagree to 5 � strongly agree). Cooperation. Cooperation was assessed using preexisting indices in TIDE2. The simulation tracks when members ask for information from a teammate, when that teammate receives that request, when that teammate responds to that request, and when the member receives the requested information. From this information, TIDE2 outputs the following indices: slights (failing to read an information request), unresponsives (reading an information request but not acting on it), lectures (sending information without a request), and learns (sending information in response to a request). Cooperation by an individual team member was operationalized as the number of times a member performed lectures and learns minus the number of times a member performed slights and unresponsives, averaged across Trials 10 –36. Because I was treating multiple trials as multiple items, cooperation had an alpha of .95. Role performance. Role performance was operationalized using decision-making accuracy. The specific accuracy index was mean-squared error, the square of the difference between what the participant should have recommended to Alpha (on the basis of the four pieces of information they were in charge of) and what the participants actually did recommend, aggregated across Trials 10 –36. Gigone and Hastie (1997) argued that mean-squared error is a superior measure of decision-making accuracy because it gives more weight to extreme errors, does not ignore the absolute differences between decisions and true scores (unlike correlation- based measures), and can be decomposed into more specific, complemen- tary accuracy facets (see Hollenbeck, Colquitt, Ilgen, LePine, & Hedlund, 1998). In the current study, mean-squared error was given a negative sign so that higher (i.e., less negative) values represented higher levels of accuracy. Because I was treating multiple trials as multiple items, the mean-squared error had an � � .71. It is important to note that this measure is conceptually different than that used in Study 1. This measure focuses less on member behaviors and more on the bottom-line outcome of mem- bers’ behaviors (i.e., whether the recommendation was accurate). Equity sensitivity. Equity sensitivity was assessed using the measure validated in King and Miles’s (1994; � � .75) study. The instructions read “The questions below ask what you’d like for your relationship to be with any organization for which you might work. On each question, divide 10 points between the two choices (choice A and choice B) by giving the most points to the choice that is most like you and the fewest points to the choice that is least like you. You can, if you’d like, give the same number of points to both choices. And you can use zeros if you like.” One item read, “I would be more concerned about: (A) What I received from the organiza- tion; (B) What I contributed to the organization.” Another item read, “It would be more important for me to: (A) Get from the organization; (B) Give to the organization.” Scores were created by summing the number of points allocated to Option B for the five items. Thus higher scores repre- sented higher levels of benevolence. Control variables. As in Study 1, perceptions of distributive fairness were assessed as a control variable. The outcome was the team’s score at the conclusion of the simulation, which was affected by the leader’s behavior and decided the team’s eligibility for the cash incentive. Partic- ipants were asked to judge how fair the score was using three items with the following anchors: 1 (it was unfair) to 5 (it was fair), 1 (it was unjust) to 5 (it was just), and 1 (it was unsatisfactory) to 5 (it was satisfactory; these three items had an alpha of � .81). Results and Discussion Manipulation Checks The manipulation check of own control was assessed with the following item: “My recommendations have influenced Alpha’s final decision” (1 � strongly disagree to 5 � strongly agree). An ANOVA yielded the anticipated main effect for own control, F(1, 238) � 64.97, p � .01; Mhigh � 3.44, Mlow � 2.58, � 2 � 0.22. The manipulation check of others’ control was assessed with the fol- lowing item: “My teammates have had a lot of influence over Alpha’s final decision” (1 � strongly disagree to 5 � strongly agree). An ANOVA also yielded the anticipated main effect for others’ control, F(1, 238) � 48.25, p � .01; Mhigh � 3.72, Mlow � 3.05; �2 � 0.17. The manipulation check of task interdependence 641REACTIONS TO PROCEDURAL JUSTICE was assessed by measuring how often participants asked their teammates for information, on average, per trial. An ANOVA yielded the anticipated main effect for task interdependence, F(1, 238) � 157.56, p � .01; Mhigh � 1.79, Mlow � .37, � 2 � 0.40. Tests of Hypotheses The means, standard deviations, and correlations are shown in Table 3, and the regression results are shown in Table 4. In step Step 1 I controlled for the effects of distributive fairness, which was significantly related to three of the outcomes. In Step 2 I examined the direct effects of own and others’ justice. Own justice had a positive effect on fairness perceptions and a negative effect on conflict. In Step 3 I entered the Own � Others’ Justice inter- action used to test Hypothesis 4. The interaction had a significant effect on fairness perceptions, cooperation, and decision-making accuracy but not conflict. Each plot resembled the pattern in Figure 1, supporting Hypothesis 4. In Step 4 I examined the main effects of the two moderators, with neither having significant effects. In Step 5 I entered all possible two-way interactions, which had to be controlled before examining the three-way interactions. Finally, Step 6 entered the three-way interactions, with significant results observed for con- flict, cooperation, and decision-making accuracy using task inter- dependence and fairness perceptions and for conflict using equity sensitivity. Sample plots are shown in Figures 3 and 4. Differences between own and others’ justice had stronger effects when task interdependence was high and weaker effects when members were more benevolent. These results offer support for Hypotheses 5 and 6. General Discussion As noted at the outset, the increased use of teams has both practical and theoretical implications. From a practical perspec- tive, scholars must examine methods of improving performance in team contexts. From a theoretical perspective, scholars must ex- amine the impact of the team context on the validity of findings derived from less interdependent contexts. With that in mind, the two studies reported here examined procedural justice in teams. The results of the two studies suggest that treating members in a just manner does have some practical benefit. Members’ own procedural justice levels were positively related to their role per- formance (in Study 1) and to their conflict perceptions (in Study 2). This adds to the handful of existing studies on procedural justice in teams, which have linked members’ justice to attachment to the team, commitment to team decisions, leader evaluations, and helping (Colquitt, 2001; Colquitt et al., 2002; Korsgaard et al., 1995; Phillips, 2002; Phillips et al., 2001). However, what stands out most from these results is the impor- tance of considering the impact of others’ procedural justice. Members seemed to use the social comparisons made possible by team contexts when reacting to justice levels. As a result, the traditional main effect of members’ own justice was qualified by an interaction in which more positive reactions occurred when treatment was consistent within the team. Indeed, this interaction explained 8 times more variance in members’ cooperation and performance than did the own justice main effect. Past research has been inconclusive about the importance of own versus others’ procedural justice comparisons (Ambrose et al., 1991; Ambrose & Kulik, 1989; Grienberger et al., 1997; Lind et al., 1998; van den Bos & Lind, 2001). However, the previous studies did not use true team contexts, as the “other” was fre- quently fictional, never to be seen by the participants. The two studies reported here placed participants in true teams, marked by the interdependence, common fate, and collective identity that have come to define the team label (Cohen & Bailey, 1997; Guzzo & Dickson, 1996; Hackman, 1987; Sundstrom et al., 1990). The interaction of own and others’ justice was demonstrated for a variety of outcomes, including role performance (Studies 1 and 2), procedural fairness perceptions (Study 2), and cooperation (Study 2). More important, both studies illustrated the boundary conditions for the interaction. Specifically, the interaction tended to be stronger as task interdependence became higher, an effect that was significant in four of five tests. The interaction tended to be weaker when members were more benevolent in terms of equity sensitivity, though that effect was significant in only two of four tests. Less support was shown for the moderating role of collec- Table 3 Descriptive Statistics and Zero-Order Correlations for Study 2 Variable M SD 1 2 3 4 5 6 7 8 9 Justice manipulations 1. Own justice 1.50 0.50 — 2. Others’ justice 1.50 0.50 .00 — Moderators 3. Task interdependence 1.50 0.50 .00 .00 — 4. Equity sensitivity 27.12 5.46 �.06 .09 �.02 — Outcome Variables 5. Fairness perceptions 3.44 0.56 .29* �.06 �.10 .03 — 6. Conflict 2.11 0.59 �.20* �.08 .01 �.13* �.40* — 7. Cooperation 0.15 3.70 �.06 .03 �.05 �.04 .10 �.15* — 8. Decision-making accuracy �1.78 1.54 .04 �.08 �.11* �.07 .14* �.14* .36* — Control variable 9. Distributive fairness 3.74 0.89 .22* .18* .04 .17* .31* �.35* .14* .12* — Note. N � 240. * p � .05, one-tailed. 642 COLQUITT tivism, though collective members were more affected by team- mates’ justice. Practical Implications These results suggest that the practical implications of proce- dural justice are more complex in team contexts. It is not enough to treat an individual member in a just manner in an effort to boost his or her role performance. As suggested in Figure 1, that practice could have a moderate benefit, a large benefit, or no benefit at all, depending on what happens to other team members. This is im- portant to consider, because many factors conspire to create in- consistent treatment within teams. For example, diversity in teams may create subtle differences in member treatment (Williams & O’Reilly, 1998). Alternatively, leader philosophies may dictate that information, influence, support, and attention be doled out on a dyad-by-dyad basis, as in leader–member exchange theories of leadership (Gerstner & Day, 1997; Graen & Scandura, 1987). Thus, some differences in treatment may be inevitable within teams, particularly in cases in which differences in function, status, or skill sets dictate differences in the control offered during pro- cedures. Obviously this situation creates a dilemma for managers in charge of teams in organizations. However, the results of Study 1 offer one practical suggestion: One must turn to other justice criteria to foster a more consistent perception of justice. Even when control must be varied, factors such as accuracy, bias sup- pression, and correctability can be made constant across team members. Indeed, past research has shown that leaders can be trained on such procedural rules in the interest of fostering positive workplace reactions (e.g., Skarlicki & Latham, 1996, 1997). Such training could allow leaders to more easily foster a consistent level of justice within teams. Leaders could also track and record that consistency using standardized measures of justice (e.g., Colquitt, 2001; Moorman, 1991). If differences in justice perceptions persist, then leaders should take greater care to explain any differences in treatment that could account for the variation. Past research has shown that explanations can mitigate negative reactions to unfavorable cir- cumstances (e.g., Bies & Shapiro, 1987; Greenberg, 1990; Rous- seau & Tijoriwala, 1999). A recent review showed that explana- tions are particularly effective when the outcome being explained has implications for a person’s economic and socioemotional Table 4 Moderated Regression Results for Study 2 Regression step Procedural fairness Conflict Cooperation Decision accuracy R2 �R2 � R2 �R2 � R2 �R2 � R2 �R2 � 1. Distributive fairness .09* .09* 0.31* .11* .11* �0.33* .02* .02* 0.12* .01 .01 0.11 2. Own justice .16* .07* 0.24* .12* .01 �0.09 .02 .00 �0.09 .02 .01 0.01 Others’ justice �0.10 0.00 0.00 �0.10 3. Own Justice � Others’ Justice .22* .06* 1.15* .12* .00 0.06 .05* .03* 0.70* .04* .02* 0.57* 4. TI .23* .01 �0.11 .13* .01 �0.01 .06* .01 �0.06 .06* .02 �0.12 ES 0.03 �0.13 �0.07 �0.08 5. Own Justice � TI .26* .03 �0.28 .17* .04* 0.48 .06 .00 �0.16 .08* .02 0.13 Others’ Justice � TI �0.45 0.42 0.10 �0.37 Own Justice � ES �0.47 �0.04 �0.16 �0.43 Others’ Justice � ES �0.48 0.67* �0.33 0.24 6. Own Justice � Others’ Justice � TI .28* .02* 0.14 .21* .04* �2.62* .10* .04* 2.71* .11* .03* 2.51* Own Justice � Others’ Justice � ES �3.82* 1.97* �1.88 �1.04 Note. N � 240. TI � task interdependence; ES � equity sensitivity. * p � .05. Figure 3. Own � Others’ Justice � Interdependence interaction for decision accuracy (Study 2). Figure 4. Own � Others’ Justice � Benevolence interaction for conflict (Study 2). 643REACTIONS TO PROCEDURAL JUSTICE well-being (Shaw, Wild, & Colquitt, 2003). Differences in proce- dural justice clearly hold both economic and socioemotional con- sequences for team members. Although the suggestions above are justice focused, team lead- ers could also turn to the moderators examined in this study. If treatment differences are unavoidable, the negative impact of those differences could be reduced by relaxing the level of task interde- pendence in the team. This could be accomplished by altering (a) the way the task is defined for the team, (b) the rules or instructions that are given to the team, or (c) the technology and skill compo- sition that characterize the team (Wageman, 2001). This option would be most effective when the level of interdependence out- paces the actual need for collective action. Alternatively, leaders could consider staffing the teams with individuals who are less equity sensitive. Personality measures are a standard component of most organizations’ selection, placement, and development sys- tems. Those existing systems could be expanded to include con- cepts such as equity sensitivity. Suggestions for Future Research Providing more specific recommendations for team leaders re- quires gaining a better understanding of the conceptual differenti- ation between own and others’ justice. With the exception of Study 1, every investigation of the interaction of own and others’ justice has manipulated treatment in a laboratory design. What is the relationship between the two constructs likely to be in actual team settings? The results from Study 1 suggest that the two are highly related, as the correlation between them was .69. The strength of this relationship is likely due to the two common causes the constructs share: the same formalized decision-making procedures and the same enactor of those procedures in the team leader. Several factors may impact the strength of the correlation be- tween own and others’ justice. First, different justice dimensions may possess different own– other correlations. Procedural justice is the most systemic of all of the justice dimensions, likely inflat- ing the own– other correlation. However, some procedural vari- ables may be more systemic than others. For example, Leventhal’s (1980) accuracy or correctability criteria may exhibit less within- team variation than Thibaut and Walker’s (1975) control-based criteria. Moreover, interactional forms of justice may exhibit larger differences within teams. For example, teams may possess cliques or in-groups that cause some members to receive more respectful treatment or to be more “in the know” because of frequent explanations. Team characteristics could also alter the relationship between own and others’ justice. Research examining justice at higher levels of analysis is indirectly relevant to this issue. Naumann and Bennett (2000) examined the relationship between procedural jus- tice climate and attitudes and behaviors in bank branches. Branches that were cohesive and possessed visible leaders tended to exhibit perceptual convergence with respect to justice climate (as evidenced by high within-group agreement or high interrater reliability). Colquitt et al. (2002) showed similar results for unit size and diversity, as large heterogeneous units tend to exhibit less climate convergence. These studies suggest that the relationship between own and others’ justice may vary across contexts even though both necessarily share common causes. Strengths and Limitations This study possesses a number of strengths. First, the multiple- study format allowed for two different operationalizations of pro- cedural justice and two different operationalizations of task inter- dependence. In addition, both studies used role performance as the dependent variable rather than the attitudinal outcomes used in past research. Moreover, the setting for Study 2 allowed for the creation of objective measures of both role performance and cooperation. Of course, these studies have their limitations as well. Although the teams in both studies possessed interdependence, common fate, and collective identity, they lacked the past history and familiarity of teams in organizations. It is therefore important to build on the results presented here by conducting field research in ongoing work teams. Although meta-analyses of the justice literature and other domains have indicated remarkable convergence in findings across lab and field studies (Anderson, Lindsay, & Bushman, 1999; Cohen-Charash & Spector, 2001), external validity can be established only by using several studies with varying methods, settings, and measures (Cook & Campbell, 1979). These studies also failed to include one common operationalization of procedural justice: the fulfillment of Leventhal’s (1980) rules for fair proce- dure. Future research should extend these results by examining the interaction of own and others’ levels of accuracy, bias suppression, correctability, or ethicality. Despite their limitations, these studies serve as an important first step in examining the full complexities of procedural justice in team contexts. The diversity in measures, research designs, and research settings offers some support for the replicability of the predicted interaction effects. It therefore seems clear that team members do not react to decision events on the basis of a tunnel- visioned awareness of only their own justice. Rather, they consider how that justice compares with that of their teammates, exhibiting more positive reactions when treatment is consistent within the team. References Adams, J. S. (1965). Inequity in social exchange. In L. Berkowitz (Ed.), Advances in experimental social psychology (pp. 267–299). New York: Academic Press. Ambrose, M. L., Harland, L. K., & Kulik, C. T. (1991). Influence of social comparisons on perceptions of organizational fairness. Journal of Ap- plied Psychology, 76, 239 –246. Ambrose, M. L., & Kulik, C. T. (1989). The influence of social compar- isons on perceptions of procedural fairness. Journal of Business and Psychology, 4, 129 –138. Anderson, C. A., Lindsay, A. J., & Bushman, B. J. (1999). Research in the psychological laboratory: Truth or triviality? Current Directions in Psychological Science, 8, 3–9. Barnard, C. I. (1938). The functions of the executive. Cambridge, MA: Harvard University Press. Barrett-Howard, E., & Tyler, T. R. (1986). Procedural justice as a criterion in allocation decisions. Journal of Personality and Social Psychology, 50, 296 –304. Bies, R. J., & Moag, J. F. (1986). Interactional justice: Communication criteria of fairness. In R. J. Lewicki, B. H. Sheppard, & M. H. Bazerman (Eds.), Research on negotiations in organizations (Vol. 1, pp. 43–55). Greenwich, CT: JAI Press. Bies, R. J., & Shapiro, D. L. (1987). Interactional fairness judgments: The influence of causal accounts. Social Justice Research, 1, 199 –218. 644 COLQUITT Bliese, P. D. (2000). Within-group agreement, non-independence, and reliability: Implications for data aggregation and analysis. In K. J. Klein & S. W. J. Kozlowski (Eds.), Multilevel theory, research, and methods in organizations: Foundations, extensions, and new directions (pp. 349 – 381). San Francisco: Jossey-Bass. Cohen, S. G., & Bailey, D. E. (1997). What makes teams work: Group effectiveness research from the shop floor to the executive suite. Journal of Management, 23, 239 –290. Cohen-Charash, Y., & Spector, P. E. (2001). The role of justice in orga- nizations: A meta-analysis. Organizational Behavior and Human Deci- sion Processes, 86, 278 –321. Colquitt, J. A. (2001). On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology, 86, 386 – 400. Colquitt, J. A., Conlon, D. E., Wesson, M. J., Porter, C. O. L. H., & Ng, K. Y. (2001). Justice at the millennium: A meta-analytic review of 25 years of organizational justice research. Journal of Applied Psychology, 86, 425– 445. Colquitt, J. A., Noe, R. A., & Jackson, C. L. (2002). Justice in teams: Antecedents and consequences of procedural justice climate. Personnel Psychology, 55, 83–110. Cook, T. D., & Campbell, D. T. (1979). Quasi-experimentation: Design and analysis issues for field settings. Boston: Houghton Mifflin. Cropanzano, R., & Ambrose, M. L. (2001). Procedural and distributive justice are more similar than you think: A monistic perspective and a research agenda. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 119 –151). Lexington, MA: New Lexington Press. Crosby, F. (1984). Relative deprivation in organizational settings. In B. M. Staw & L. L. Cummings (Eds.), Research in organizational behavior (Vol. 6, pp. 51–93). Greenwich, CT: JAI Press. Devine, D. J., Clayton, L. D., Philips, J. L., Dunford, B. B., & Melner, S. B. (1999). Teams in organizations: Prevalence, characteristics, and effec- tiveness. Small Group Research, 30, 678 –711. Earley, P. C. (1989). Social loafing and collectivism: A comparison of the United States and the People’s Republic of China. Administrative Sci- ence Quarterly, 34, 565–581. Earley, P. C. (1993). East meets West meets Mideast: Further explorations of collectivistic and individualistic work groups. Academy of Manage- ment Journal, 36, 319 –348. Earley, P. C., & Gibson, C. B. (1998). Taking stock in our progress on individualism-collectivism: 100 years of solidarity and community. Journal of Management, 24, 265–304. Folger, R. (1986). A referent cognitions theory of relative deprivation. In J. M. Olson, C. P. Herman, & M. P. Zanna (Eds.), Relative deprivation and social comparison: The Ontario symposium (pp. 33–55). Hillsdale, NJ: Erlbaum. Folger, R. (1987). Reformulating the preconditions of resentment: A ref- erent cognitions model. In J. C. Masters & W. P. Smith (Eds.), Social comparison, justice, and relative deprivation: Theoretical, empirical, and policy perspectives (pp. 183–215). Hillsdale, NJ: Erlbaum. Folger, R. (1993). Reactions to mistreatment at work. In K. Murnighan (Ed.), Social psychology in organizations: Advances in theory and research (pp. 161–183). Englewood Cliffs, NJ: Prentice Hall. Folger, R., & Cropanzano, R. (1998). Organizational justice and human resource management. Thousand Oaks, CA: Sage. Folger, R., & Cropanzano, R. (2001). Fairness theory: Justice as account- ability. In J. Greenberg & R. Cropanzano (Eds.), Advances in organi- zational justice (pp. 1–55). Stanford, CA: Stanford University Press. Gerstner, C. R., & Day, D. V. (1997). Meta-analytic review of leader– member exchange theory: Correlates and construct issues. Journal of Applied Psychology, 82, 827– 844. Gibson, C. B. (1999). Do they do what they believe they can? Group efficacy and group effectiveness across tasks and cultures. Academy of Management Journal, 42, 138 –152. Gigone, D., & Hastie, R. (1997). Proper analysis of the accuracy of group judgments. Psychological Bulletin, 121, 149 –167. Gilliland, S. W., & Langdon, J. C. (1998). Creating performance manage- ment systems that promote perceptions of fairness. In J. W. Smither (Ed.), Performance appraisal: State of the art in practice (pp. 209 –243). San Francisco: Jossey-Bass. Graen, G. B., & Scandura, T. (1987). Toward a psychology of dyadic organizing. In L. L. Cummings & B. M. Staw (Eds.), Research in organizational behavior (Vol. 9, pp. 175–208). Greenwich, CT: JAI Press. Greenberg, J. (1990). Employee theft as a reaction to underpayment ineq- uity: The hidden cost of pay cuts. Journal of Applied Psychology, 75, 561–568. Grienberger, I. V., Rutte, C. G., & van Knippenberg, A. F. M. (1997). Influence of social comparisons of outcomes and procedures on fairness judgments. Journal of Applied Psychology, 82, 913–919. Guzzo, R. A., & Dickson, M. W. (1996). Teams in organizations: Recent research on performance and effectiveness. Annual Review of Psychol- ogy, 47, 307–338. Hackman, J. R. (1987). The design of work teams. In J. W. Lorsch (Ed.), Handbook of organizational behavior (pp. 315–342). Englewood Cliffs, NJ: Prentice Hall. Hofstede, G. (1980). Culture’s consequences. Beverly Hills, CA: Sage. Hollenbeck, J. R., Colquitt, J. A., Ilgen, D. R., LePine, J. A., & Hedlund, J. (1998). Accuracy decomposition and team decision making: Testing theoretical boundary conditions. Journal of Applied Psychology, 83, 494 –500. Hollenbeck, J. R., Ilgen, D. R., LePine, J. A., Colquitt, J. A., & Hedlund, J. (1998). Extending the multilevel theory of team decision-making: Effects of feedback and experience in hierarchical teams. Academy of Management Journal, 41, 269 –282. Hollenbeck, J. R., Ilgen, D. R., Sego, D. R., Hedlund, J., Major, D. A., & Phillips, J. (1995). The Multilevel Theory of team decision making: Decision performance in teams incorporating distributed expertise. Jour- nal of Applied Psychology, 80, 292–316. Hui, C. H., Triandis, H. C., & Yee, C. (1991). Cultural differences in reward allocation: Is collectivism the explanation? British Journal of Social Psychology, 30, 145–157. Huseman, R. C., Hatfield, J. D., & Miles, E. W. (1987). A new perspective on equity theory: The equity sensitivity construct. Academy of Manage- ment Review, 12, 222–234. James, L. R. (1982). Aggregation bias in estimates of perceptual agree- ment. Journal of Applied Psychology, 67, 219 –229. James, L. R., Demaree, R. G., & Wolf, G. (1984). Estimating within-group interrater reliability with and without response bias. Journal of Applied Psychology, 69, 85–98. Johnson, D. W., Johnson, R. T., Buckman, L. A., & Richards, P. S. (1988). The effect of prolonged implementation of support within the classroom. Journal of Psychology, 119, 405– 411. Kiggundu, M. N. (1981). Task interdependence and the theory of job design. Academy of Management Review, 6, 499 –508. King, W. C., Jr., & Miles, E. W. (1994). The measurement of equity sensitivity. Journal of Occupational and Organizational Psychology, 67, 133–142. King, W. C., Jr., Miles, E. W., & Day, D. D. (1993). A test and refinement of the equity sensitivity construct. Journal of Organizational Behavior, 14, 301–317. Korsgaard, M. A., Schweiger, D. M., & Sapienza, H. J. (1995). Building commitment, attachment, and trust in strategic decision-making teams: The role of procedural justice. Academy of Management Journal, 38, 60 – 84. Lawler, E. E., Mohrman, S. A., & Ledford, G. E., Jr. (1995). Creating high 645REACTIONS TO PROCEDURAL JUSTICE performance organizations: Practices and results of employee involve- ment and total quality management in Fortune 1000 companies. San Francisco: Jossey-Bass. Leventhal, G. S. (1976). The distribution of rewards and resources in groups and organizations. In L. Berkowitz & W. Walster (Eds.), Ad- vances in experimental social psychology (pp. 91–131). New York: Academic Press. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. Gergen, M. Greenberg, & R. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27–55). New York: Plenum Press. Lind, E. A., Kray, L., & Thompson, L. (1998). The social construction of injustice: Fairness judgments in response to own and others’ unfair treatment by authorities. Organizational Behavior and Human Decision Processes, 75, 1–22. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum Press. Lindell, M. K., Brandt, C. J., & Whitney, D. J. (1999). A revised index of agreement for multi-item ratings of a single target. Applied Psycholog- ical Measurement, 23, 127–135. Mayer, R. C., Davis, J. H., & Schoorman, F. D. (1995). An integrative model of organizational trust. Academy of Management Review, 20, 709 –734. Miceli, M. P. (1993). Justice and pay system satisfaction. In R. Cropanzano (Ed.), Justice in the workplace: Approaching fairness in human resource management (pp. 257–283). Hillsdale, NJ: Erlbaum. Miles, E. W., Hatfield, J. D., & Huseman, R. C. (1989). The equity sensitivity construct: Potential implications for worker performance. Journal of Management, 15, 581–588. Moorman, R. H. (1991). Relationship between organizational justice and organizational citizenship behaviors: Do fairness perceptions influence employee citizenship? Journal of Applied Psychology, 76, 845– 855. Moorman, R. H., & Blakely, G. L. (1995). Individualism– collectivism as an individual difference predictor of organizational citizenship behavior. Journal of Organizational Behavior, 16, 127–142. Naumann, S. E., & Bennett, N. (2000). A case for procedural justice climate: Development and test of a multilevel model. Academy of Management Journal, 43, 881– 889. Oyserman, D., Coon, H. M., & Kemmelmeier, M. (2002). Rethinking individualism and collectivism: Evaluation of theoretical assumptions and meta-analyses. Psychological Bulletin, 128, 3–72. Phillips, J. M. (2002). Antecedents and consequences of procedural justice perceptions in hierarchical decision-making teams. Small Group Re- search, 33, 32– 64. Phillips, J. M., Douthitt, E. A., & Hyland, M. M. (2001). The role of justice in team member satisfaction with the leader and attachment to the team. Journal of Applied Psychology, 86, 316 –325. Ramamoorthy, N., & Carroll, S. J. (1998). Individualism/collectivism orientations and reactions toward alternative human resource manage- ment practices. Human Relations, 51, 571–588. Rousseau, D. M., & Tijoriwala, S. A. (1999). What’s a good reason to change? Motivated reasoning and social accounts in promoting organi- zational change. Journal of Applied Psychology, 84, 514 –528. Saavedra, R., Earley, P. C., & Van Dyne, L. (1993). Complex interdepen- dence in task-performing groups. Journal of Applied Psychology, 78, 61–72. Shaw, J. C., Wild, R. E., & Colquitt, J. A. (2003). To justify or excuse?: A meta-analytic review of the effects of explanations. Journal of Applied Psychology, 88, 444 – 458. Shrout, P. E., & Fleiss, F. L. (1979). Intraclass correlations: Uses in assessing rater reliability. Psychological Bulletin, 86, 420 – 428. Skarlicki, D. P., & Latham, G. P. (1996). Increasing citizenship behavior within a labor union: A test of organizational justice theory. Journal of Applied Psychology, 81, 161–169. Skarlicki, D. P., & Latham, G. P. (1997). Leadership training in organiza- tional justice to increase citizenship behavior within a labor union: A replication. Personnel Psychology, 50, 617– 633. Steiner, I. D. (1972). Group process and productivity. New York: Aca- demic Press. Sundstrom, E., DeMeuse, K. P., & Futrell, D. (1990). Work teams: Ap- plications and effectiveness. American Psychologist, 45, 120 –133. Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hillsdale, NJ: Erlbaum. Triandis, H. C. (1995). Individualism and collectivism. Boulder, CO: Westview Press. Triandis, H. C., Bontempo, R., Villareal, M. J., Asai, M., & Lucca, N. (1988). Individualism and collectivism: Cross-cultural perspectives on self– group relationships. Journal of Personality and Social Psychology, 54, 323–338. Triandis, H. C., Leung, K., Villareal, M. J., & Clack, F. L. (1985). Allocentric versus idiocentric tendencies: Convergent and discriminant validation. Journal of Research in Personality, 19, 395– 415. van den Bos, K., & Lind, E. A. (2001). The psychology of own versus others’ treatment: Self-oriented and other-oriented effects on perceptions of procedural justice. Personality and Social Psychology Bulletin, 27, 1324 –1333. Wageman, R. (2001). The meaning of interdependence. In M. E. Turner (Ed.), Groups at work: Theory and research (pp. 197–217). Mahwah, NJ: Erlbaum. Wagner, J. A., III. (1995). Studies of individualism– collectivism: Effects on cooperation in groups. Academy of Management Journal, 38, 152– 172. Waldman, D. A. (1997). Predictors of employee preferences for multirater and group-based performance appraisal. Group and Organization Man- agement, 22, 264 –287. Williams, K. Y., & O’Reilly, C. A., III. (1998). Demography and diversity in organizations: A review of 40 years of research. In L. L. Cummings & B. M. Staw (Eds.), Research in organizational behavior (Vol. 20, pp. 77–140). Greenwich, CT: JAI Press. Received August 5, 2002 Revision received July 12, 2003 Accepted September 15, 2003 � Instructions to Authors For Instructions to Authors, please consult the first issue of the volume or visit www.apa.org/journals/apl and click on Submission Guidelines. 646 COLQUITT 
work_3j4cdibcizaohgcjilkjhfruxu	----	Tax Competition and Global Background Justice Tax Competition and Global Background Justice Peter Dietsch Université de Montréal Département de Philosophie C.P.6128 succursale Centre-ville Montréal, QC, H3C 3J7, Canada E-Mail: peter.dietsch@umontreal.ca and Thomas Rixen Social Science Research Center Berlin (WZB) Research Unit: Transnational Conflicts and International Institutions Reichpietschufer 50 10785 Berlin, Germany E-Mail: rixen@wzb.eu Acknowledgments: For comments on previous drafts of this paper we thank Kim Brooks, Ryoa Chung, Matthias Ecker-Ehrhardt, Tim Gemkow, Monika Heupel, Dominic Martin, Mihaela Mi- hai, Jean-Pierre Vidal, Lora Viola, Daniel Weinstock, David Wiens, Jurgen de Wispelaere, and Michael Zürn. We acknowledge financial support from the DAAD (German Academic Exchange Service). Tax Competition and Global Background Justice Abstract In a globalized economy states compete for mobile tax bases. This tax competition undermines the fiscal self-determination of states and exacerbates inequalities of income and wealth both within countries and across borders. The paper provides a normative evaluation of the rules gov- erning international tax competition. We put forward two principles of international taxation de- signed to both protect and circumscribe the fiscal self-determination of states. First, a member- ship principle which holds that deriving the benefits of membership in any given country grounds an obligation to pay one’s taxes there. Second, an intentionality principle which states that any tax policy change is legitimate only if it would still be pursued in the counterfactual situation where the benefits of this move in terms of inflowing capital were absent. We then consider how the two principles can be implemented and propose to establish an International Tax Organization (ITO). This organization would have to be assigned institutional capacities very similar to those of the WTO in governing international trade. Finally, we show that our principles, despite being anchored in the fiscal self-determination of states, are compatible with a cosmopolitan position on global justice. They are principles of background justice in the sense that they define the rules of the game required for an international tax regime free of unjust bias. Keywords: Tax Competition, Global Justice, Background Justice, Self-determination, Institu- tional Design, Multi-level Governance. 1 Tax Competition and Global Background Justice A globalized economy raises intricate questions of distributive justice. Some of these have come under scrutiny in the literature. Under what conditions can international trade be regarded as respecting norms of fairness? Are wages at the subsistence level a necessary step on the path to growth or a form of exploitation? Who does and who should benefit from the profits generated by the exploitation of natural resources?1 Yet, one important determinant of global justice, namely questions of international taxation, has received little attention in the philosophical debate.2 While the importance of taxation as a means to implement domestic public policy and concep- tions of justice is widely acknowledged – and indeed often taken for granted – issues of interna- tional tax justice are mostly neglected. Tax competition between states puts pressure on domestic fiscal regimes. Mobile factors of production have the opportunity to “shop around” to minimize their tax burden. This interdependence of national tax regimes generates external effects that un- dermine the de facto sovereignty of states. As a consequence, tax competition tends to exacerbate inequalities of income and wealth both within countries and across borders. One way to address these issues is to condemn the distributive outcomes and to propose redis- tributive policies to correct what are perceived to be unjust inequalities. This approach is largely remedial. A second possibility is to examine the rules of the game of international taxation them- selves, and make sure they do not contain any unjust bias. This approach, which is geared to- wards the prevention of distributive injustice in the first place, is the approach favored here. To 1 See e.g. {Kurjanska, 2008 #3925;Risse, 2007 #3922}{Wenar, 2008 #3924}{Pogge, 2005 #3926} 2 There are, however, contributions from lawyers and economists discussing normative principles of international taxation, see e.g. {Musgrave, 1972 #690;Vogel, 1990 #109;Avi-Yonah, 2006 #931}. One exception in the philosophical literature is {Cappelen, 2001 #3793}. 2 what extent does the fiscal interdependence between countries call for a normative interdepend- ence in the form of obligations towards other countries that governments have to respect in their fiscal policy? How can we delineate legitimate fiscal interdependence from illegitimate tax com- petition? These are the questions that motivate this paper. They target the conditions of interna- tional background justice that need to be met to guarantee rules of international taxation that are free from any unjust bias.3 The core of the paper consists of two principles of international taxation designed to both pro- tect and circumscribe the fiscal prerogatives of the state.4 First, a membership principle which holds that deriving the benefits of membership in any given country grounds an obligation to pay one’s taxes there. Second, an intentionality principle which states that any lowering of national tax rates is legitimate only if it would still be pursued in the counterfactual situation where the external benefits of this move in terms of inflowing capital were absent. The paper is structured as follows. In a first step, we sketch the impact of tax competition on the de facto sovereignty of states as well as on social inequalities in order to explain why tax competition in its current form is a case of background injustice and should thus be on the radar of theories of justice (section 1). The central part of the paper then lays out the membership and intentionality principles (section 2). In section 3 we address the question of how these principles 3 See {Ronzoni, 2009 #3958}. The idea of background justice is discussed in detail in section 4 of the present paper. 4 Note that we only consider income taxes, so-called direct taxation. This is the area where tax compe- tition is fiercest. We do however also consider the effect of income tax competition on the structure of tax systems, e.g. the mix of direct and indirect taxes. Given that direct taxes are most sensitive to tax competi- tion, one may think that the easiest way to solve these issues is to rely more or solely on indirect taxes. This would however have adverse distributive consequences. See section 2. 3 could be implemented. We propose the establishment of an International Tax Organization (ITO) after the model of the World Trade Organization (WTO). We also endorse unitary taxation with formulary apportionment (UT+FA) as a reform of corporate taxation. Section 4 considers and rejects the potential objection that our account is incompatible with defending a cosmopolitan theory of global justice. Furthermore, it elaborates on the normative status of our account as one of international background justice. Section 5 concludes. 1. How Tax Competition Undermines Fiscal Self-Determination In this section we show that tax competition leads to policy changes that have not been legiti- mately chosen by the states involved, but were forced upon them by external competitive pres- sures. In other words, tax competition undermines the self-determination of states. We first ex- plain what fiscal self-determination entails and then how tax competition undermines it. The Content of Fiscal Self-Determination In order to establish the fiscal prerogatives of the state, it is useful to step back and consider what the purpose of taxation is. Among other things, it is needed in order to finance public goods.5 Due to collective action problems their provision generally requires a central enforcement institution, the state. Therefore the prior public good paid for by taxes is the state itself. The state can be viewed as a complex exchange between individuals in order to supply themselves with the public goods necessary to pursue their individual life plans. Under pluralism of conceptions of the good life, the legitimacy of the state is generally grounded in a democratic form of government, where those subject to the coercively enforced rules of the state are also the authors of these rules. 5 Other objectives of taxation include the redistribution of income and wealth as well as the setting of incentives or disincentives for certain kinds of economic behaviour. 4 Importantly, for the purposes of the present section, we take it for granted that polities should be granted considerable autonomy in designing their state institutions.6 In the fiscal context, a stylized definition of collective self-determination entails two basic choices concerning the size of the public budget (level of revenues and expenditures) and the question of relative benefits and burdens (extent of redistribution). While there are certainly many different views on how these two evidently interdependent choices ought to be made, there is widespread agreement that they constitute the fiscal prerogatives of the state.7 This is the substantive content of fiscal self- determination or tax sovereignty. Three points are worth mentioning. First, we make the simplifying assumption that govern- ments perfectly track their citizens’ preferences.8 We acknowledge that this is an unrealistic as- sumption, since government preferences often are the result of rather messy and conflictual po- litical processes, in which different groups of citizens pursue different interests. It is, in reality, not necessarily true that differences in political preferences within the polity of a state are less important than differences between polities.9 Second, a distinction needs to be made between de jure and de facto tax sovereignty. As will become clear in the next subsection, effective self- determination in fiscal matters requires the latter. Third, self-determination is not to be under- 6 We discuss the normative foundations of the (fiscal) self-determination of states in section 4. This or- ganisation of the paper reflects our emphasis on the content of the fiscal prerogatives of the state in an economically interdependent world. While the normative foundation of the state itself has to be addressed in this context, it is not at the heart of this paper. 7 {Cf. e.g. \Avi-Yonah, 2000 #516;Dietsch, 2008 #3637} 8 For a discussion of the problems associated with this assumption see {Cappelen, 2005 #3927@ 220- 22}. 9 Such situations raise questions about a possible reorganisation of the boundaries of states or of se- cession. See for instance {Buchanan, 2004 #3639} 5 stood in absolute terms. Instead, effective protection from illegitimate interference by other states requires limits on self-determination. Spelling out these limits lies at the heart of this paper. The Consequences of Tax Competition Tax competition is defined as interactive tax setting by independent governments in a non- cooperative, strategic way. For tax competition to exist there must be fiscal interdependence. This condition is met if tax bases are sensitive with respect to tax law differences, so that there is an effect of governmental actions on the allocation of mobile tax bases among jurisdictions. Tax base mobility must be legally possible and it must actually occur.10 Favorable tax conditions to attract foreign capital can be brought about in various ways, such as a reduction in tax burdens (be it by reducing tax rates or defining tax bases in favorable ways), fashioning preferential tax regimes for foreigners, or creating (or not closing) tax loopholes, e.g. through implementing bank secrecy rules or a lax enforcement of existing rules. Tax competition primarily targets capital, which is mobile internationally.11 Governments use different strategies and tax instruments depending on the kind of capital targeted. Three kinds of capital can be distinguished. First, in the area of portfolio capital of individuals and firms, so- called tax havens often have low or zero tax rates. More importantly, they offer strict bank se- crecy rules as well as certain legal constructs such as trusts that enable individuals to hide their ownership vis-à-vis tax administrations in their state of residence. While it is hard to come up with reliable figures since tax evasion is illegal, the available evidence suggests that there is a real 10 {Wilson, 2004 #571@ 1065-6} 11 In general, labor is quite insensitive to tax differentials and thus the fundamental requirement of fis- cal interdependence is hardly met. However, this is not true for certain high-skilled segments of the labor market. We bracket tax competition for labor here. 6 effect of these policies. Estimates of the worldwide yearly revenue losses to government coffers range from 155 to 255 Billion USD.12 Second, governments compete for foreign direct investment (FDI) in the form of real business activity, e.g. location decisions of multinational enterprises (MNEs). These business decisions depend on various factors such as the level of education, the costs of labor, and the quality of the infrastructure. But the effective tax burden also plays a role. Empirical studies come to the con- clusion that raising taxes decreases the inflow of foreign direct investment. However, the direc- tion and strength of the correlation is strongly affected by the method of measurement and the kinds of tax rates investigated.13 In their quest to attract foreign direct investment, governments may either lower the general business tax rate or they can engage in designing so-called preferen- tial tax regimes, which grant tax advantages to foreigners only (ring fencing). Third, there is competition for so-called paper profits. Through various techniques, such as transfer pricing (especially of intangible assets) and thin capitalization, MNEs can assign profits made in high-tax countries to their subsidiaries in low-tax countries without relocating real busi- ness activity.14 Despite different approaches, all empirical investigations into this issue come to the same conclusion: the transfer of taxable profits is very sensitive to taxation, and companies make ample use of these possibilities. The decisive factor to attract mobile profits is the nominal tax rate, because companies shift only those profits that cannot be offset against depreciation and 12 {Owens, 2007 #2749;Tax Justice Network (TJN), 2005 #1831} 13 {de Mooij, 2008 #3635} 14 For a description of these and other techniques of shifting paper profits, see e.g. {, 1995 #330@ 8- 17} The fact that 60% of world trade is intra-firm indicates that the tax base at stake is significant. 7 other tax benefits.15 Again, governments may also decide to compete via specially designed re- gimes to attract paper profits. For example, the regime of Special Financial Institutions (SFI) in the Netherlands allows foreign companies to channel capital through them in order to realize tax benefits. Standard theory predicts a “race to the bottom” in capital taxation and the under-provision of public goods in all jurisdictions.16 While this extreme outcome cannot be observed empirically, it can be shown that tax competition undermines the fiscal self-determination of states, i.e. their ability to effectively set the size of the budget and the extent of redistribution. In OECD coun- tries, nominal corporate tax rates have fallen from an average of around 50% in 1975 to an aver- age below 30% in 2005. Over the same period, nominal top personal income tax rates have fallen from around 70% to well below 50%. These rate cuts were refinanced by broadening the bases on which taxes are applied (‘tax cut cum base broadening’). In this way, corporate tax revenue re- mained stable at an average of about 2.5% of GDP, whereas income tax revenue as a percentage of GDP rose from 11.2% to 12.8% of GDP.17 The trend towards low nominal tax rates and broad tax bases is an attempt to defend against the outflow of mobile profits and at the same time pre- vent an adverse revenue effect.18 15 {Devereux, 2006 #1951;de Mooij, 2008 #3635} The fact that profit shifting is possible may explain the weaker effect of tax policies on FDI. As long as MNEs can realize tax savings without business reloca- tions, the competition for FDI and mobile profit is in a substitutive relationship. We return to this issue in part 2. 16 {See e.g. \Wilson, 2004 #571@ 1069-70} 17 {OECD, 2008 #3170} 18 {See e.g. \Haufler, 2000 #1436} 8 While revenue losses did not occur, the ‘tax cut cum base broadening’ policy affects the dis- tribution of the tax burden among different kinds of taxpayers. For one, there is an effect within the business sector: highly profitable MNEs benefit, while nationally organized small and me- dium-sized enterprises are more heavily burdened. Second, the tax burden is shifted from capital to labor. This is also visible in the general trend to increase indirect taxes, such as consumption taxes.19 Last but not least, competitive downward pressure on corporate tax rates affects the dis- tributional characteristics of the personal income tax. If the nominal corporation tax rate is low- ered, then it is worthwhile for private individuals to re-label their income by incorporating. In order to prevent such arbitrage, policy makers often align the corporate tax rate and the top rate on personal income, thus flattening the personal income tax schedule.20 As to developing countries, the dynamics of a race-to-the-bottom have a more visible impact. The pressure from tax competition on public finances is comparable to OECD countries, but de- veloping countries usually do not have the administrative resources to stabilize their revenues by broadening their tax base. On the contrary, in many countries the base has been narrowed.21 A significant part of the revenue loss is directly due to the shifting of paper profits. One study esti- mates the annual revenue loss of developing countries from transfer pricing to be US $ 160 bil- lion.22 19 {Loretz, 2008 #3668;Schwarz, 2007 #1953;Genschel, 2002 #190} 20 {Ganghof, 2006 #1435} 21 {Keen, 2004 #1872} 22 {Christian Aid, 2008 #2701} 9 Overall, the empirical evidence shows that tax competition undermines fiscal self- determination.23 While states still possess the formal right to set tax policies (de jure sover- eignty), they cannot effectively pursue their desired policy goals (de facto sovereignty). Devel- oped countries are able to maintain the size of the budget (first component of self-determination), but this can only be achieved by compromising the desired extent of redistribution and making the tax system more regressive (second component of self-determination). By contrast, develop- ing countries are not able to prevent revenue losses and thus lose both components of fiscal self- determination. In this respect, tax competition increases existing inequalities between countries of the global North and South. For these reasons, we consider international tax competition in its present form to be a case of background injustice. In the absence of an institutional framework to regulate it, it introduces multiple kinds of bias into the international fiscal regime that lack justifi- cation. 2. Two Principles of International Background Tax Justice: Membership and Intentionality The last section has specified the content of fiscal self-determination and demonstrated how it is endangered by tax competition. Just like in the case of individual liberty, to be effective, the lib- 23 Some observers argue that the policy choices described above – tax cuts cum base broadening, in- creasing reliance on indirect taxes and low tax burdens on capital – are not caused by tax competition. They argue that these policies reflect a general shift towards market-conforming taxation that governments implemented irrespective of competitive pressures. {cf. e.g. \Steinmo, 2003 #1432} While it is true that there are also domestic efficiency reasons for implementing these policies, our foregoing sketch of the mechanisms shows – in line with most of the public finance literature – that these changes are to a signifi- cant part driven by the pressures of tax competition. For more on this debate, see {Rixen, 2007 #1312}. If, however, as we will discuss in section 2, such policies are indeed chosen for domestic reasons only, they would not indicate a violation of self-determination but an instance of it. 10 erty to make these collective choices is restricted by the same liberty for the citizens of other countries. The two principles we will advance in this section spell out these restrictions and are meant to ensure that countries have an effective right to tax that reflects their polities’ choices about the size of the state budget and the desired extent of redistribution. The membership princi- ple is based on the intuition that capital mobility renders this liberty fragile and that it therefore needs to be protected. The intentionality principle argues that this liberty can be abused and therefore calls for it to be circumscribed. The Membership Principle Imagine you live on a street with two fitness clubs. One high-end club with expensive equipment and all kinds of free-bees like club towels and shaving equipment, and one less fancy club that lacks the rowing machines, has only three Stepmasters instead of ten and no free-bees. Unsurpris- ingly, the membership fee of the high-end club is almost three times that of its no-frills competi- tor. You are a member of the no-frills club. One day, you discover that your membership card actually lets you pass the turnstile at the high-end club, too. You keep quiet and start working out there. As it turns out, quite a few members of the no-frills club frequent the fancy club. A month later, you bump into a friend in the washrooms of the high-end club. “What are you doing here?” he asks. With a sheepish look on your face, you tell him about your discovery. He is enraged: “You guys are free-riding on our membership fees.” He informs the manager and, the next day, the high-end club starts issuing new membership cards. This reaction appears justified and serves to stop what was an unacceptable form of free-riding. For the purposes of our argument, the analogy between countries and clubs is a useful one. There are places, e.g. the Scandinavian countries that provide more services like state-financed daycare, more generous unemployment insurance, and so on, but in turn also “charge” more in 11 terms of taxes.24 There are others, like England, where citizens prefer to have a leaner set of serv- ices and hence pay less. Certain forms of tax planning that involve shifting one’s tax base to a low-tax jurisdiction without moving the underlying activity itself are parallel to using the high- end fitness club on your no-frills card. When a company uses the services of a country – that is its infrastructure, the human capital, and so on – to produce a certain commodity, but then shifts the paper profit made with this economic activity to low-tax jurisdictions through practices like trans- fer pricing or thin capitalization, the citizens who finance these services have a legitimate com- plaint. Tax evasion by individuals, as suggested by its illegality, represents an even blunter form of abuse. This is like jumping the turnstile at the high-end fitness club when no one is watching. Despite these parallels between the membership in a fitness club and a country, the reaction of free-riders when they are found out is rather different. Whereas it seems reasonable to expect most people to feel sheepish about free-riding at the high-end fitness club, the parallel practice at the level of countries is often pursued without shame and, in the case of corporate tax avoidance, even under the approving stamp of legality. This reaction can be explained, but not excused, by the pervasive perception of taxation as something that the state takes away from us rather than as part of a social compact between citizens.25 We are now in a position to formulate our first principle of international taxation, the member- ship principle: 24 We put “charge” in inverted commas here, because we do not mean to imply adherence to the benefit principle. See also discussion below. 25 {Murphy, 2002 #2485} call this phenomenon the “myth of ownership.” They argue that citizens do not have an entitlement to their pre-tax income but can only claim legitimate ownership to their post-tax income since the tax-financed state defines property rights in the first place. 12 Natural and legal persons should be liable to pay tax in the state of which they are a mem- ber. In order to apply the principle, it is necessary to define membership. Our definition is the fol- lowing: Individuals and companies should be viewed as members in those countries where they benefit from the public services and infrastructure.26 This conception of membership is related to, but distinct from, what is called the “benefit principle” or the principle of “fiscal equivalence” in the public finance literature.27 The benefit principle is sometimes contrasted with the ability to pay principle.28 Whereas the latter justifies redistribution, the former does not and makes taxes strictly proportional to the individual benefits taxpayers receive in return. Our conception of membership is more general and comprises both of these principles. It is compatible with what has been called “group fiscal equivalence”29, which demands that the collective benefits of the 26 While, as we will briefly discuss below, this definition of membership is not detailed enough to re- solve all cases of ambiguous membership assignments, it does nonetheless exclude certain conceptual possibilities. It should be emphasized, for example, that our definition of membership is distinct from citizenship. Permanently non-resident citizens should not be liable to tax in their country of citizenship. Conversely, temporary resident aliens, even though they generally do not have a democratic voice in state decisions, should be. Moreover, companies should not be given voting rights. In the case of individuals, consider a person living and working in a country for one or two years. It seems justified to tax her, but also permissible not to give her a say in democratic decisions. In fact, one could sensibly distinguish between different thresholds of permanence. Whereas a tourist should not be liable to income tax in the country he visits, a “guest worker” staying for longer than, say, 6 months should be. For a resident alien taxpayer to acquire voting rights, the level of permanence can be signifi- cantly higher – even though it seems to us that many countries are too restrictive in granting citizenship to permanently resident foreigners. We bracket these debates here. 27 {Olson, 1969 #268} 28 See e.g. {Slemrod, 2004 #1630@ 61-6} 29 {Thielemann, 2002 #3525} 13 group of citizens should be proportional to the amount of taxes paid. It thus allows for redistribu- tion among individuals. As implicit in our notion of fiscal self-determination, the citizens of a state may well decide that it is appropriate to tax people with higher incomes at higher rates. On this issue, the above analogy between the fitness clubs and countries breaks down. True to its objective to re-establish the de facto sovereignty of states, the membership principle is silent on the actual tax system chosen by polities. It merely stipulates that polities should have an effective right to tax individuals and companies benefiting from public services and infrastructure as they see fit. Our definition of membership is broad enough to encompass the major intuitions of diverse theories of international taxation. In the international tax literature, there is agreement that a nexus between the taxpayer and the country is required for tax membership. Yet, there is dis- agreement about the proper nature of the nexus – should it be economic, social, political or terri- torial allegation, or a combination of these? The disagreement has never been fully resolved at the level of principles.30 This is unsurprising, given that each pure solution has distributive con- sequences which favor the material revenue interests of certain groups of countries over others. Most importantly, developing countries, as capital importers, favor taxation at source, i.e. in those countries where capital is invested. In contrast, capital exporting countries favor residence taxa- tion, i.e. in those countries where investors reside. This conflict has shaped the history of interna- tional taxation and continues to do so.31 30 See e.g. {Musgrave, 1991 #144}{Biehl, 1982 #1406}{Cappelen, 2001 #3793} 31 See e.g. {Musgrave, 1972 #690}{Vogel, 1990 #109}{Rixen, 2008 #2123@ 57-116} 14 Nevertheless, a working compromise has been found. According to the so-called “interna- tional tax principles”32 individuals are assessed on a residence basis, because residence deter- mines where they benefit from public services and where they should therefore be counted as a member. Companies benefit from public services and infrastructure in the country where their substantive activities take place. Beyond a certain threshold of economic activity, they are there- fore liable to tax in source countries, i.e. those countries in which the income was generated. For MNEs whose activities spread across borders, membership comes in degrees and should corre- spond to the distribution of its economic activities among countries. This justification for the combination of the residence and source principle of international taxation is commonly ac- cepted. While the detailed definition of membership for particular cases remains a thorny and often controversial issue, which keeps many tax experts busy, the distribution of taxing rights broadly follows this pattern, which is in line with our membership principle. However, there are two problems. First, even though their underlying rationale is in line with our membership principle, the actual international tax rules, which are made up of domestic tax laws, bilateral double tax agreements (DTAs) and non-binding model conventions of interna- tional organizations, create certain overlaps (so-called double taxation) and gaps (double non- taxation) in countries’ taxing rights33. As described in section 1, these grey zones can be ex- 32 {Avi-Yonah, 2006 #931} Avi-Yonah argues that the existing rules of international taxation make up a coherent “international tax regime”. 33 For example, a few countries, most importantly the US, tax not only their residents but also their non-resident citizens. Some countries apply different rules if an individual has multiple residences (typi- cally, an individual counts as a resident for tax purposes if she spends 183 days or more in the country). In some instances, countries disagree over what counts as a sufficient economic activity to warrant taxation at source. For a discussion of the gaps and overlaps in the international tax regime with references to the vast legal and economic literature on the topic, see {Rixen, 2008 #2123@ 66-85} 15 ploited by sophisticated taxpayers to minimize their tax bill, and thus violate the membership principle. Second, even if there were no scope for manipulation, the current rules are badly en- forced. There is no international authority guarding countries’ adherence to the rules, and admin- istrative assistance and information exchange among national tax authorities is underdeveloped. This makes it possible for taxpayers to escape the taxman and is a violation of the membership principle. How would respecting the membership principle change the international tax landscape? While the detailed answer depends on the way it is institutionalized, a general answer can be given. The membership principle ensures that tax competition is actually in line with Tiebout’s notion of “voting with your feet.”34 Tiebout’s model is generally presented as a justification for tax competition. It is argued that competition among jurisdictions leads to an efficient allocation of public funds as individuals self-select into different jurisdictions offering certain tax- expenditure packages according to the extent to which these match their fiscal preferences. A crucial assumption of the model is that there are neither positive nor negative externalities on other countries stemming from the provision of “local” public goods. This assumption will gen- erally not hold in reality.35 While the costs and benefits of government action will never align perfectly in an economically interdependent world, the membership principle works to minimize the gap between them. It prohibits the hiding or shifting of part of the tax base from one’s resi- dence in the case of individuals and from the source of the economic activity in the case of multi- nationals. In order to realize tax advantages, companies and individuals would actually have to 34 {Tiebout, 1956 #277} 35 Most defences of the status quo of tax competition assume Tieboutian sorting to work efficiently {see e.g. \Mueller, 1998 #262}. Given the reality of externalities and capital shifting, it is easily apparent that such arguments cannot hold {Sinn, 1997 #274}. 16 relocate, rather than merely shifting their funds. Free-riding would no longer be possible. In other words, two of the three kinds of competition, shifting of mobile profits and competition for port- folio capital would be curtailed. The crucial question in assessing the potential impact of the membership principle is how in- dividuals and companies would react if these possibilities were no longer available. To what ex- tent would individuals and companies make use of their exit option, and move or relocate their residence or real economic activity from high-tax to low-tax jurisdictions? For an assessment of this issue, it is useful to consider individuals and MNEs separately. Individuals form a certain attachment to the place they live in. This attachment often includes the internalization of the solidarity that is reflected in their polity’s choices about the size of the state and the extent of redistribution. Having said that, it is evident that in people who evade taxes in their home country, this internalization has not happened. If their affective ties to the country are not strong enough to compensate the losses that respecting the membership principle imposes on them relative to the status quo, then some individuals may indeed choose to leave. Note, how- ever, that this decision will also incur a cost. Whereas under the status quo they are able to free- ride by evading taxes, under the membership principle leaving a high-tax country for a low-tax one implies receiving fewer government services. A company, by contrast, cannot form affective ties to a particular location. Its managers make the decision of where to locate its different economic activities according to what maximizes profit rather than according to the affective ties of employees. This means we can expect the reac- tion of companies to enforcing the membership principle to be more significant than that of indi- viduals. Under the status quo, the pressure on an MNE to leave a high-tax jurisdiction is low, since the loopholes in the current system enable it to shift some of its profit instead and thereby 17 lower its effective tax burden. A shift from the status quo to a world where the membership prin- ciple is respected would be a shift from a world of (merely) virtual tax competition for paper profits to a world of real tax competition for FDI: companies would have to relocate real invest- ment in order to realize tax savings. It has been argued that such real tax competition may be more harmful to high-tax states than virtual tax competition. Instead of loosing only tax revenue, high-tax states stand to lose real capital and jobs as well.36 Apparently, some politicians in high-tax countries have resigned to the fact that, in the absence of fundamental international tax reform, tolerating profit shifting is their best strategy.37 Unsur- prisingly, this acceptance is not reflected in the official political discourse since it would mean admitting to voters that one is letting some people free-ride. What we observe today in the prac- tice of corporate taxation, in other words, is a system of nominal tax competition with price dif- ferentiation. It is as if a high-end fitness club nominally charges a high membership fee to cover its costs, but then secretly gives rebates to certain customers it does not want to lose. Since it is an empirical question how the world of real tax competition would play out, it remains unclear whether the above stance of policymakers is warranted. It may well be that companies requiring state-of-the-art infrastructure or access to high-skilled labor will choose high-tax countries, whereas companies in labor-intensive, low-skill sectors will move to low-tax jurisdictions. In any case, from the perspective of the membership principle any relocation of real invest- ment in the case of companies and of residence in the case of individuals would be unproblem- atic. The membership principle ensures that taxes are paid where the benefits from public serv- ices and infrastructure are obtained and thus effectively addresses two of the three types of tax 36 {Keen, 2001 #3847;Dharmapala, 2008 #3283@ 671-6} 37 Cf. {Rixen, 2011 #3907} 18 competition – the targeting of portfolio investments as well as of paper profits. In the next section we explain why this is not enough to preserve fiscal self-determination, and why there is also a need to constrain competition for ‘real’ FDI. The Intentionality Principle Independently of how distribution plays out in a world that respects the membership principle, the question arises whether this principle suffices as a condition of justice in international taxa- tion. To demonstrate why we think that the membership principle on its own would be insuffi- cient to adequately protect fiscal self-determination, let us return to a more sophisticated version of our story about fitness clubs. Suppose the fitness clubs, though on the same street, fall on two sides of a municipal bound- ary. Suppose also that you can only become a member of a fitness club if you are resident in the respective municipality – this assumption guarantees that the membership principle is respected. About 20% of the population is a member in a fitness club. Since they are in better shape, fitness club members find it much easier to move house from one municipality to another. The financing structure of both clubs is 80% through membership fees and 20% through subsidies from the mu- nicipality, i.e. through municipal taxes. One day, the manager of the low-end fitness club has an idea. He lobbies the mayor to increase the municipality’s subsidy to cover 40% of the costs of running the club. This allows the club to lower membership fees and the municipality to attract new residents. Since the services offered by the club remain the same, the lower price will con- vince some of the members of the high-end club that the difference in price is now too big to jus- tify the service premium their club offers. They move to the municipality of the no-frills club 19 (MN-F) and become members there.38 Subsequently, in order to compensate the decline in reve- nues from membership fees, the high-end club will have to either also obtain a larger share of its financing from its municipality (MH-E) or reduce the quality of its service. Is there anything wrong with this from the perspective of justice? The short answer is: It de- pends. We will argue that the legitimacy of this move depends on the motives behind the change of policy in MN-F. Against the background of section 1, the parallel between the fitness club case and tax competition between countries is straightforward to see. In the above story, for fitness club users, read mobile factors; for non-club members, read immobile factors; for mayor, read government. The altering of the financing structure at the no-frills club corresponds to a broaden- ing of the tax base and a shift of the tax burden to relatively immobile factors. To see why it will be necessary to appeal to the intention of the mayor of MN-F to decide whether the new policy poses a problem, consider the following two scenarios. In scenario A, the majority of residents see the new financing structure as the just way to fund the club, and conse- quently the mayor pushes for the policy change. Given the right of a polity to choose the size of their state and the extent of redistribution established in section 1, it is only consistent to consider the policy as legitimate in this case. In scenario B, the new policy is adopted, because it will al- low the municipality to attract new residents and the corresponding tax base. The two scenarios are observationally equivalent. Hence, if one wanted to make a case that scenario B poses a nor- mative problem, one would have to appeal to a non-consequentialist criterion that tracks the dif- ferent motives. 38 To make this plausible, let us assume that club membership fees represent a significant part of peo- ple’s budget. 20 So why should we think anything wrong with scenario B in the first place? Reconsider the last sentence of the fitness club story: “Subsequently, in order to compensate the decline in revenues from membership fees, the high-end club will have to either also obtain a larger share of its fi- nancing from its municipality or reduce the quality of its service.” The external effect of the pol- icy change in MN-F represents a violation of the liberty of the residents in MH-E to choose their preferred size of the budget and extent of redistribution. Under scenario A, we have to choose between restricting the right of residents in MN-F to exercise their liberty versus restricting the right of residents in MH-E to exercise theirs. By contrast, under scenario B, the right of residents in MH-E to exercise their liberty trumps the purely strategic considerations of MN-F. This is the basis for condemning the policy change under scenario B. To summarize in the language of coun- tries rather than fitness clubs, if a country changes its tax system merely in order to attract tax base from abroad, this conflicts with the rights to fiscal self-determination of other countries and is therefore problematic from a normative viewpoint. These considerations motivate our second principle of justice for international taxation, the in- tentionality principle: Suppose the benefits of a tax policy change in terms of attracted tax base from abroad did not exist, would the country still pursue the policy under this hypothetical scenario? If yes, the policy is evidently not motivated by strategic considerations and therefore legitimate. If not, then the policy is illegitimate. “Strategic” here implies that a policy is justified by the prospect of attracting mobile capital from abroad rather than by appeal to the fiscal prerogatives of the state defined in section 1. The counterfactual nature of the criterion allows us, on a conceptual level, to elicit the motivation of a 21 country in pursuing any given fiscal policy.39 It effectively delineates (legitimate) fiscal interde- pendence from illegitimate tax competition.40 Note that it also captures cases of mixed motives. Suppose a country lowers a certain tax rate in part because this reflects the conception of justice of its citizens, but also because of the strategic value of doing so for attracting foreign tax base.41 Perhaps the country would, in the absence of the inflowing tax base from abroad, still lower the rate in question, but by a lesser amount. In this case, that lesser reduction is motivated by legiti- mate motivations, whereas the part of the reduction that would be dropped is illegitimate. Someone might object that such an attempt to discern different motives suffers from two im- portant ambiguities, even on a theoretical level. First, suppose the citizens of a developing coun- try are motivated by social justice reasons to build more hospitals and, in order to do so, decide to lower their country’s taxes to attract the necessary capital from abroad. Is this part of their fiscal self-determination or should it count as a strategic consideration? In the latter case, would we not deprive poor countries of an important source of redistribution? We believe that our principle can answer these questions. First, we submit that this policy should indeed count as motivated by strategic considerations. Capital that is attracted to the developing country to build a hospital is not available to build a hospital elsewhere. Second, this does not mean that building the hospital in the developing country is not important and does not exclude the possibility that richer coun- tries have an obligation of assistance towards this project. But this obligation should not be dis- 39 The counterfactual nature of the criterion is in part inspired by {Normore, 2010 #3928} on the foun- dations of political obligation. 40 Remember from the definition provided in section 1 that the strategic motivation is a necessary ele- ment of tax competition. Thus, by eliminating strategic motivations, none of the remaining fiscal interde- pendence qualifies as tax competition. 41 As explained in footnote 23, such mixed motives are empirically plausible. 22 charged in the form of a bias in the way the jurisdictional structure of international taxation is set up. It should rather be dealt with on the level of the allocation of collective revenues – for in- stance in the form of a unitary tax with formulary apportionment as discussed below – or via ex- plicit redistribution. Conversely, this means that rectifying the jurisdictional structure of interna- tional taxation should be conditioned on developed countries fulfilling their redistributive obliga- tions towards developing countries.42 Second, one may ask whether our intentionality principle applies to all potential policy in- struments with cross-border effects. Do we rule out strategic behavior across the board, or are there instances in which they are legitimate? Our answer is that it depends on whether the strate- gic interaction, i.e. competition, will lead to a race to the bottom or whether it can be seen as harmless or even as a race to the top. Take the example of strategic infrastructure investments. A country invests in high-quality and specialized infrastructure in order to attract high-tech busi- nesses from abroad which form a highly interdependent cluster. Due to agglomeration effects this will positively impact growth in the country. As a reaction to that other countries may also begin 42 In fact, this issue is not simply hypothetical. There is a debate about the legitimacy of developing country (often small island) tax havens. When OECD countries began to pressure tax havens to abandon their harmful tax policies (see below), some tax havens argued that they had chosen to become tax havens because they saw no other possibility to initiate economic development. In fact they argued that the rich countries are hypocritical wanting to close down the (offshore) financial centres, the development of which they had earlier advocated. See {Sharman, 2006 #1998}. In fact, we agree that those developing countries have a right to adequate compensation by ‘high-tax’ countries if our two principles are imple- mented. Such a right would, however, not be awarded to rich, longstanding tax havens like Switzerland, Liechtenstein and others. 23 to specialize in certain infrastructures and form such clusters. The result is likely to be a race to the top – in which case there is no need to rule out strategic considerations.43 Given that a large part of the literature considers tax harmonization to be the relevant alterna- tive to tax competition, two observations should be made in this regard. First, in a world where both the membership and the intentionality principle are respected there would not be full har- monization of fiscal policies across countries. Suppose the English really do have a preference for a smaller state and less redistribution than the Swedish. Neither of our principles will stop them from designing a tax structure that reflects these preferences. In turn, nothing we have said will prevent the Swedes from making a democratic choice that the best way to finance a relatively generous welfare state is to shift a considerable portion of the tax burden onto labor and con- sumption and to tax capital lightly. There may indeed be good internal reasons for such a pol- icy.44 However, the intentionality principle prohibits the very same policies if they are based on strategic considerations. Second, even in a world where different polities have divergent preferences about the size of the state and the extent of redistribution, our two principles will create some pressure towards convergence. This is so because countries with preferences for a relatively large state and/or high extent of redistribution will now have to bear the real costs of these preferences in terms of part of their tax base voting with its feet. At the other end of the spectrum, however, the danger of a race to the bottom would be eliminated by our two principles for the very same reason. Countries 43 This is not to deny that some attempts of strategic infrastructure investment may turn out to be un- successful. However such individual failures do not contradict the fact that from the collective viewpoint the competitive dynamic is beneficial. 44 See e.g. {Przeworski, 1988 #704} 24 with smaller state budgets and a lower level of redistribution would also be forced to bear the full costs of their tax structure, rather than being able to finance part of their public services by strate- gically attracting foreign tax base. The fiscal externalities generated in both directions under the intentionality principle are those minimally present under conditions of fiscal interdependence between states. They ensure a maximum – though less than perfect – correspondence between the convictions of members of the respective polities and fiscal structure of those polities. The intentionality principle entails that different fiscal communities have to justify their policy choices to one another. Whether a given change in tax structure is just or not depends on how the country in question justifies this change to others. The intentionality principle complements the membership principle and fills the normative void where the membership principle on its own would fall short in adequately protecting fiscal self-determination. Despite these attractions of the intentionality principle, it also faces two related objections. First, why try to elicit the intentions of polities and their governments in fiscal policy when the market mechanism arguably offers a shortcut to the same outcome? After all, one of the main attractions of the mechanism of competitive markets is the fact that it serves to promote the common good irrespective of the individual intentions of market participants. Should this mecha- nism not also be at work in the case of tax competition? The answer to this question is no. In con- trast to a competitive market where private goods are traded, tax competition is about public goods. As Hans-Werner Sinn has shown, tax competition amounts to trying to provide public goods via the market mechanism.45 As every first-year economics student knows, this is ineffi- cient and therefore detrimental to the common good. If, at the same time, we do not want to cen- tralize the decision for the provision of public goods at the highest level (world government), but 45 {Sinn, 1997 #274} 25 want to allow for some diversity among decentralized units (states), then it is necessary to elimi- nate the strategic element of interactions between these units. This is what our intentionality prin- ciple does. Yet, condemning the market alternative is not sufficient to endorse our proposed alternative. According to the second objection, the fact that intentions are unobservable stands in the way of making the principle operational. Our response to this challenge is twofold. First, we acknowl- edge that this is a serious problem. Second, however, we think that it is a necessary problem in the sense that any approach that aims to delineate illegitimate tax competition from mere fiscal interdependence will encounter it. Whether we are right about this or not hinges on the previously discussed question of whether the legitimacy of a given tax policy depends on the motivation that drives the policy. Recall our suggestion that it is possible to have two observationally equivalent scenarios. Under scenario A, the policy change flows from the preferences of citizens about the size of the state and the extent of redistribution. Under scenario B, the change is strategically mo- tivated. If you agree that these should be evaluated differently from a normative perspective, then you should also agree that appealing to motivation is a necessary component of a normative ac- count of international taxation. In this case, the challenge of the second objection is pushed back to the institutionalization of our principles that we will turn to now. 3. Institutionalizing the Two Principles It is notoriously difficult to derive concrete institutions from abstract principles. This is so even in the absence of ambiguity about what the correct interpretation of the principle is, because there will generally be more than one way to institutionalize a principle. In the face of this institutional indeterminacy, we limit ourselves here to demonstrating that there is an institutional solution that 26 satisfies the conditions embodied in our principles. As a further caveat, we stress that the follow- ing brief sketch cannot, due to space constraints, do full justice to the complex issues of interna- tional taxation. But it should suffice to outline the institutional implications of our proposal. Any institutional solution must provide (1) a forum for governments to negotiate agreements on the rules of international taxation and (2) make sure that the rules are enforced. In the follow- ing we propose the establishment of an International Tax Organization (ITO) and discuss the ba- sic institutional design features required for the two tasks.46 We have already stated that it is nec- essary for governments to come to a multilateral agreement on what it means to be member of a state and that the details of such a rule will be controversial. The ITO should become a forum for negotiating and defining the rules in line with the membership and intentionality principles. To ensure a level-playing field, all states should be members and adequately represented in the ITO’s decision-making procedures. The OECD as today’s most important international tax forum is often criticized for falling short in these respects. We first discuss a possible institutionalization of the membership principle and then turn to the intentionality principle. Third, we propose en- forcement mechanisms. Last, we provide a brief comparative analysis between current institu- tions and policy initiatives in international taxation on the one hand and the hypothetical world in which our two principles are respected on the other in order to gauge to what extent the latter is an improvement over the status quo. 46 Calls for an International Tax Organization can be found in the literature, see {e.g. \Tanzi, 1999 #98;Horner, 2001 #822} However, so far no attempt has been made to derive the institutional design from the functional requirements of the issue to be dealt with. On institutional design, see e.g. {Koremenos, 2001 #519} 27 Institutionalizing the Membership Principle On the basis of our two principles several substantive reforms become imperative. First, the membership principle requires governments to abolish all rules that make it impossible for other countries to enforce the membership principle. Thus, strict bank secrecy regulations, the supply of other deliberately nontransparent legal constructs and the refusal to exchange information with other tax administrations will be ruled out. This means that governments must internationally commit themselves to rid their national tax codes of all such secrecy rules. The requirement to exchange tax-relevant information with other countries could be implemented through a system of multilateral automatic exchange of information. Automatic information exchange would repre- sent a significant improvement upon on-request information exchange, which is currently pro- vided for in many bilateral tax treaties. Under the on-request system, the requesting state will generally have to present initial evidence of international tax evasion in order to receive the re- quired information about foreign funds of its residents. Yet, precisely the kind of information required to mount an initial case is often secret. Routine and electronic (i.e. automatic) exchange of information on the funds of non-residents to their respective home countries can address this problem.47 Second, an ITO with inclusive membership would provide an ideal forum to reconsider the membership rule in the case of MNEs. How should the rights to tax shares of the profit of an MNE be allocated among jurisdictions? This issue is a very thorny one in international tax prac- tice that has so far been resolved through so-called separate entity accounting and arm’s length 47 For more on automatic and multilateral exchange of tax information, see {Spencer, 2005 #3749} and {Palan, 2010 #3868@ 244-45} 28 standard (ALS) transfer pricing.48 However, as set out in section 1, both the indeterminacy of applying this standard and the difficulties in its enforcement can be exploited by MNEs to lower their tax bills. One possible solution would be to switch to a system of unitary taxation with for- mula apportionment (UT+FA). This would require governments to agree on a common and con- solidated corporate tax base. MNEs would have to determine their worldwide profit in one single report, and they would be allowed to consolidate profits and losses of entities in different coun- tries. The worldwide profit would then be apportioned to the respective countries in which the MNE operates on the basis of a predetermined formula. The formula should reflect the real eco- nomic activity in each country by referring to factors such as property, sales, and payroll. This would make it impossible for companies to engage in the shifting of paper profits and thus be a major step forward in the implementation of the membership principle.49 Institutionalizing the Intentionality Principle As we have already acknowledged, defining rules that respect the intentionality principle will be difficult. The fact that intentions are unobservable invites hypocrisy. It will be possible for gov- ernments to misrepresent their intentions, i.e. attribute any tax policy changes to the preferences of citizens about the size of the state and the extent of redistribution, even if in reality they pursue the strategic aim of attracting foreign tax base. In order to avoid hypocritical political discourses and long but futile attempts to distinguish honest from dishonest representations of intentions, the 48 According to the ALS, foreign branches or subsidiaries of an MNE are to be taxed as if they were independent market participants, exchanging goods and services at arm’s length (i.e. market) prices, see e.g. {Eden, 1998 #838@ 32-52} 49 There is an extensive literature in law and public finance on UT+FA and how it compares to separate entity accounting. For an overview, see e.g. {Graetz, 2003 #816@ 400-35}. Two different proposals to implement UT+FA, are {Clausing, 2007 #2668} and {Rixen, 2007 #2001} 29 institutionalization of the principle has to rely on objectively observable factors. The task is to identify observable implications of the unobserved intentions. While a detailed and legally applicable definition of objective factors that indicate a violation of the intentionality principle is a task for tax lawyers and thus beyond the scope of this paper, it is nonetheless possible to derive a number of rules that are in line with the intentionality princi- ple. First, all forms of preferential tax regimes for foreigners (ring fencing) must be abolished. Such discriminatory arrangements show that a government implements a policy for strategic rea- sons only because otherwise it would grant equal treatment to residents and non-residents alike. Note, however, that non-discrimination, while it covers part of our intentionality principle is not sufficient to constrain all forms of strategic and harmful policies. As is well known in the public finance literature, relatively small countries are in a position to overcompensate revenue losses from general (i.e. non-discriminatory) rate decreases with inflowing foreign tax base.50 We therefore need to supplement the non-discrimination rule with additional observable criteria to further constrain purely strategic behavior. 51 Enforcement What would it take to effectively enforce our two principles? First, we argue that monitoring the adherence to the rules should be relatively straightforward since governments can be expected to launch a complaint if other governments violate either or both of the two principles.52 Yet, what 50 See e.g. {Bucovetsky, 1991 #1035}{Dehejia, 1999 #193} 51 Comments on this aspect of the paper are particularly welcome. 52 That said, it may be in the interest of governments to assign the ITO with the task to collect and pro- vide information on tax policy changes to all member countries. This would make the tax policies of indi- vidual countries common knowledge of all countries and would thus greatly increase transparency. 30 is needed is an independent authority that will process the complaint and eventually enforce the rules. Independent third party enforcement is needed to ensure compliance with the two princi- ples, because the structure of tax competition is such that every individual country has an incen- tive to deviate from the collectively desirable rules. The ITO could install a dispute settlement procedure after the WTO model to satisfy this requirement.53 In case a member state complains that the tax practices of another member violate the rules, they can, as a first step, try to resolve the conflict in consultations. If they are unsuccessful, the case will be transferred to the dispute settlement body (DSB), which effectively functions like an independent judiciary, because a panel report (judgment) can only be blocked if all member states unanimously agree on blocking it. If the DSB considers the policy a violation of the rules, the government will have to revoke the policy. If it does not do so, it will have to pay a fine to the ITO. Since parties know that there will be effective enforcement of decisions in the DSB, it can be expected that they will resolve many cases in consultation. This procedure has the advantage of avoiding excessive litigation in the implementation of the rules and leaves room for political negotiations and decisions. The contrast with the status quo How does our proposal for the future rules of international taxation compare with the status quo? As we have described in part 1, the current situation is characterized by harmful tax competition. This fact has not gone unnoticed by governments and international organizations. Accordingly, they have launched policy initiatives to address this situation. The most prominent of these initia- tives is the OECD project to counteract harmful tax competition.54 The original purpose was to 53 For a descripotion of the WTO dispute settlement process, see e.g. {Zangl, 2008 #3579} 54 {OECD, 1998 #836}. 31 persuade tax havens to abolish harmful tax practices. In particular, they were encouraged to change their national tax laws so that it would no longer be possible for a tax avoider to merely ‘book’ some economic activity in the respective haven without any underlying ‘real’ economic activity. Also, they were asked to give up bank and tax secrecy legislation and to open up for information exchange with other states. In addition to the tax havens, the project also aimed at so- called preferential tax regimes in OECD countries, i.e. rules which tried to attract foreign capital by offering better treatment than was available to domestic investors. Since the OECD has no authority to issue binding rules, it pursued a “naming and shaming” approach and published a blacklist of tax havens and preferential tax regimes that should be evaluated and removed in a process of peer reviews.55 The initiative has not been successful. The criterion of missing substantial economic activity was removed from the definition of tax havens56, who can continue to offer tax residence to cor- porations and individuals even if there is no real economic activity linked to the tax base. Instead, the OECD now merely advances certain standards of transparency and information exchange between tax havens and non-haven countries.57 Importantly, this decision took the issue of tax avoidance and planning, which make up a significant part of tax competition, off the agenda. More transparency and better information exchange merely target outright illegal tax evasion.58 And even evasion is not effectively addressed, since the OECD relies on bilateral information exchange agreements which provide for exchange on request only, which has significant short- 55 {OECD, 2000 #51} 56 {OECD, 2001 #52`, 10} 57 {OECD, 2004 #568} 58 {Webb, 2004 #860`, 816}. 32 comings (see above). Even after the financial crisis, when the G 20 instructed the OECD to re- invigorate its project, there were no major improvements. The OECD continued its efforts to get countries to sign bilateral information exchange agreements.59 This does of course nothing to ameliorate the major shortcoming, i.e. the ineffectiveness of exchange on request. The OECD initiative’s failure can be attributed to successful campaigns of low-tax countries who claimed that any restrictions on their tax policy initiatives represent undue interferences into their fiscal sovereignty60 and successful campaigns by business lobbies who succeeded in captur- ing their governments with threatening to exit were they to be deprived of tax planning opportu- nities.61 The European Union has been somewhat more successful in its initiatives against harmful tax competition. With respect to business tax competition, the Council agreed on a soft law Code of Conduct in 1997. Like the OECD project, this Code of Conduct was also aimed at harmful tax competition. Member states entered into a non-binding commitment to remove so-called prefer- ential tax regimes, i.e., schemes that offer more generous tax treatment to foreign corporations than to domestic businesses. Despite its being non-binding, the code developed some bite because compliance with it was made a condition of accession for the Central and Eastern European coun- tries. Also, the Commission applied the principles contained in the code to its state aid rules, 59 As of 1 July 2011, 477 information exchange agreements had been signed (http://www.oecd.org/document/7/0,3746,en_2649_33767_38312839_1_1_1_1,00.html). 60 {Sharman, 2006 #1998} 61 {Webb, 2004 #860}{Rixen, 2011 #3907} 33 which thus increased compliance among the EU-15 states.62 Currently, the European Union con- siders adopting a system of unitary taxation with formula apportionment.63 In the area of portfolio tax competition the EU has passed the Savings Tax Directive, which took effect in July 2005.64 This directive targets tax evasion on interest income by requiring automatic information exchange among countries on the savings of foreign residents. Some tax havens, jealously guarding their bank secrecy, have opted to apply a withholding tax rather than to exchange information. While the directive has significant loopholes – notably it can be cir- cumvented by moving funds to third countries, it applies only to interest income so that it can be circumvented by restructuring portfolios from debt to equity and it is not applicable to trusts or corporations – it is important in that it shows that automatic international information exchange can be implemented in practice. Our proposal significantly improves upon these initiatives. In line with the normative demands of our two principles we propose an international framework that is much stronger than the cur- rent international tax institutions, which cannot make binding rules and, as the case of the OECD project shows, lack international levers of enforcement. The experience at the regional level of the European Union shows that this is indeed feasible. The EU uses one of the specific policies we recommend, namely automatic information exchange, and is seriously debating another one, UT+FA. At the same time, note that our proposal, while it does involve a redefinition of fiscal sovereignty, does not require the transfer of core fiscal prerogatives to the international level. No supra-national power to tax is established. Instead, the idea is that the international community 62 {Radaelli, 2008 #2553`, 327-8}{Genschel, 2011 #2688, 12-3} 63 {European Commission, 2011 #4293} 64 On this initiative see {Rixen, forthcoming #4086} 34 can impose certain limits on the fiscal choices of nation states ex post. In order to implement this, we propose the establishment of an International Tax Organization, which supervises countries’ tax policies and has the capacity to effectively sanction harmful national tax policies. The exis- tence of the WTO is testament to the fact that it is achievable. 4. Toward what Kind of Global Justice? We have pointed out that the membership and intentionality principles serve to protect the de facto sovereignty of states and their capacity to implement the conception of justice of their citi- zens domestically through their fiscal policy. Yet, what about global justice? Arguably, the most disturbing inequalities in today’s world are ones between individuals across borders rather than between citizens of the same state. Our account owes two explanations in this context. First, we need to justify granting states fis- cal self-determination in the first place – a question that we bracketed in section 1. Prima facie, it might seem that doing so puts our account at odds with a number of theories of global justice, notably cosmopolitan ones. We will show that this is not the case. Second, a clarification con- cerning the normative status of the two principles is in order. In the second part of this section, we will elaborate on what we have in mind when presenting them as principles of international background justice. The Normative Grounds of Self-Determination Consider the following formulation of the basic tenet of cosmopolitanism: “Moral cosmopolitan- ism holds that all persons stand in certain moral relations to one another: we are required to re- spect one another’s status as ultimate units of moral concern – a requirement that imposes limits 35 upon our conduct and, in particular, upon our efforts to construct institutional schemes.”65 Moral cosmopolitanism is to be distinguished from legal cosmopolitanism, which calls for a global or- der in which people have “equivalent rights and duties.”66 While the latter, more radical version of cosmopolitanism is indeed incompatible with state autonomy, most cosmopolitan theorists endorse the more moderate variant of the cosmopolitan ideal.67 It is not our goal here to endorse cosmopolitanism or any other theory of global justice. We merely aim to anticipate and counter the objection that the membership and intentionality princi- ples and the self-determination of states they advocate conflict with moral cosmopolitanism as defined above. To this end, we will now sketch three ways in which a moral cosmopolitan may accept, or even endorse, the self-determination of states. First, a cosmopolitan may hold that “to respect one another’s status as ultimate units of moral concern” actually requires a certain level of state autonomy.68 How so? Consider a purely justice- based cosmopolitan theory, i.e. one that proposes one theory of global justice to apply to all hu- man beings across the globe. Such a position runs into the objection of pluralism concerning con- ceptions of justice. Given pluralism, so the objection against this position runs, imposing one conception of justice on everyone in fact fails to respect those who do not share it as ultimate units of moral concern. This objection can be defused by introducing a democracy-based compo- nent into cosmopolitanism. This component requires that people have a say in the decisions that affect their interests. Note that this does not provide us with a justification for the self- 65 {Pogge, 1992 #2834} 66 Ibid. 67 They include {Beitz, 1999 #4284}, {Caney, 2006 #3641}, {Tan, 2004 #3937}, {Moellendorf, 2002 #4285}, {Pogge, 2008 #4286} 68 {Caney, 2006 #4287} defends an argument of this sort. 36 determination of states as such, but for a multi-level governance structure that states plausibly form a part of. Under this structure, political issues are dealt with at the governance level that best corresponds to the scope of the policy in question – for example, environmental issues will be dealt with at a higher level of governance than questions of educational policy. The upshot of this position is what Simon Caney calls a mixed cosmopolitan view that is sensitive both to a minimal – i.e. pluralism-defying – notion of global justice and to the importance of political participation. A position of this type accepts a certain level of state self-determination on normative grounds. While certain constraints based on considerations of global justice may apply to the level of self- determination in question, there is no incompatibility with the membership and intentionality principles as such. Second, a cosmopolitan may defend state self-determination as the most effective means to promote the interests of individuals worldwide. In particular, he may believe it to offer a more effective way of serving these interests than concentrating collective decision-making at the highest level, i.e. in the hands of a world government. As Robert Goodin puts it, the special du- ties that states have towards their citizens are the best way of discharging “the general duties that everyone has towards everyone else worldwide.”69 Besides, granting autonomy to states offers protection from domination as well as immunity from the larger unit that allows it to be more responsive to local interests and to reduce the burdens of decision-making.70 A position of this type accepts a certain level of state self-determination on instrumental and conditional grounds. If it turns out that there is an institutional alternative that serves the interests of individuals 69 {Goodin, 1988 #3935@ 681} 70 These are some of the classic reasons given for a federal structure. In addition, the existence of sev- eral smaller units allows for different experiments of life. See e.g. {Follesdal, 2001 #3938@ 251-53;Oates, 1999 #265} 37 worldwide in a better way, the justification of self-determination is undermined. The same quali- fication would apply to an endorsement of the membership and intentionality principles on these grounds. Finally, for those cosmopolitans who remain unconvinced by the two previous arguments, there is another, pragmatic reason to grant states some autonomy nonetheless. A theory of justice with practical ambitions is well advised to take some features of the world as given, rather than attempting to reform everything at once. Arguably, the division of world politics into states is a good candidate for such a feature, given that a world without states has to be viewed as utopian from today’s perspective. Note that adopting a pragmatic stance of this kind does not imply accepting the current state system as just. One might argue that those states benefiting from the international structure in unjust ways incur a series of redistributive obligations towards those who get short-changed un- der the status quo.71 We agree that such redistributive duties exist today. However, this paper relegates them to the background. Our focus here has been to design fair rules of the game to govern the fiscal interdependencies between states. It is to a series of comments on the normative status of these rules that we turn in the next subsection. In sum, the cosmopolitan has at least three potential reasons to accept the kind of state self- determination implicit in our membership and intentionality principles. While we do not defend a 71 For instance, countries can have redistributive duties towards the members of other states because they unduly benefit from economic interaction with them, see {Parijs, 2007 #2933}; or because they have inflicted harm on them in the past, see {, 2002 #3640}; or simply because the latter find themselves unable to survive without outside assistance. This list is not meant to be complete. 38 particular theory of global justice in this paper, accepting these two principles does not impose an undue constraint on the position one may want to defend in this regard. An account of background justice in international taxation The literature on global justice has been dominated by questions concerning the relation between principles of domestic justice versus principles of global justice. While cosmopolitan theorists generally defend continuity between the two,72 their critics hold that the global sphere is signifi- cantly distinct from the domestic level.73 One of these alleged differences will preoccupy us here, namely the question of whether a global basic structure exists that gives rise to concerns of global distributive justice.74 On the one hand, a number of so-called “practice-dependent” views argue, first, that the con- tent of our conceptions of justice is dependent on the practices they regulate and, second, that no clear structures and rules of the required kind exist at the global level to give rise to concerns of distributive justice.75 On the other hand, this position has recently been contested in two ways. First, Andreas Follesdal has argued that several of the practices of international relations are in 72 See for instance the following two review articles: {Caney, 2001 #3918} and {Parijs, 2007 #2933} 73 To cite some of the most important positions of this kind, the global sphere is argued to be distinct due to its lack of a global people (e.g. {Miller, 2007 #4288}), its lack of a global democracy (e.g. {Nagel, 2005 #2833}), or its lack of a global state (e.g. {Blake, 2001 #3644}). 74 John Rawls defines the basic structure of society as “the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooper- ation.” {Rawls, 1999 #4289@ 6}. Here, we are interested in the global basic structure. 75 See for example, {Sangiovanni, 2007 #2822}, and {Meckled-Garcia, 2008 #4290} While we dis- tance ourselves from one aspect of their position here, a lot more would have to be said to do their contri- bution justice. 39 fact constitutive of a global basic structure and, hence, that issues of global justice do indeed arise.76 Second, and more importantly in our context, Miriam Ronzoni has suggested that “the most pressing issue is not whether we have a global basic structure, but whether we need one.”77 Ronzoni makes the case that the absence of a global basic structure in the face of inequalities should not lead us to conclude that these inequalities somehow fall outside the purview of justice, but instead calls for the creation of such a basic structure. Internationally as well as domestically, certain rules may be required to guarantee the fairness of interactions between individuals. Ron- zoni submits that “under circumstances of intense international interaction and interdependence the conditions of effective sovereignty, and hence of international background justice, may be eroded.”78 Consequently, she advocates the creation of functionally differentiated supranational institutions that have the (legitimate) authority to set certain rules for appropriate conduct. This is precisely the kind of claim we have attempted to substantiate with respect to interna- tional tax competition in section 1. The current institutional setting undermines effective sover- eignty. The membership and intentionality principles are designed to restore this sovereignty and to guarantee international background justice. In fact, Ronzoni explicitly cites tax competition as one policy area where she considers international background justice to be violated and calls for interdisciplinary research on this issue. Delivering on the research program of international back- ground justice in international taxation is the principal objective of this paper. Let us add two comments on this categorisation of our account as one of international back- ground justice. First, in line with Ronzoni’s account as well as with our remarks in the introduc- 76 Cf. {Follesdal, 2011 #4291}. 77 {Ronzoni, 2009 #3958@ 243} 78 {Ronzoni, 2009 #3958@ 248-49} 40 tion to this paper, the idea of background justice emphasizes institutional reform over redistribu- tive obligations. It favours preventative institutional reform to remedial redistribution of income. That said, note that our two principles will go some way towards reducing global inequalities. For those who agree that we are currently facing a situation of background injustice, the inequalities that would be eliminated by institutional reform of the kind proposed here in fact qualify as injus- tices. What is more, neglecting institutional reform at the expense of an exclusive focus on redis- tribution amounts to a Sisyphus task. Redistribution to correct for an institutional bias and injus- tice is analogous to swimming against the current – it takes a lot more energy while getting you less far. Second, this short section cannot claim to present a comprehensive treatment of the rich litera- ture on global justice. Our limited objective here has been to elucidate the nature of our contribu- tion to the literature. The membership and intentionality principles represent principles of interna- tional background justice. 5. Conclusion Portraying the tax and transfer branch of government as the major instrument of redistribution can obscure the fact that competition between different tax systems will in fact exacerbate in- come inequalities both domestically and globally. This paper was motivated by the intuition that the inequality-enhancing effects of tax competition can be qualified as unjust. The membership and intentionality principles defended above serve as a normative toolkit to identify what that portion is. They specify to what extent the interdependence of states in fiscal matters calls for normative interdependence. To put these principles into practice, we propose the creation of an International Tax Organization (ITO), whose job description would include the settling of dis- 41 putes between states about which tax policies violate the membership and intentionality princi- ples. To be sure, a world in which the membership and intentionality principles are respected is not yet a just world. It is merely a world that guarantees international background justice in two im- portant ways. First, national polities would regain the capacity to make collective fiscal choices about the size of the state and the level of domestic redistribution. In other words, the member- ship and intentionality principles ensure that the costs of fiscal choices fall on those who make them, at least to the extent that this can be achieved under conditions of fiscal interdependence. Second, the two principles will have to be complemented by substantive principles of global tax justice. While these necessarily build on the work done in this paper, they also ask the question whether states have normative obligations to make transfer payments to other states and, if so, what they are. We hope to address this issue in future work. 
work_3jinxmlijzhydnm4hlw7kmohie	----	209 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 Esta obra está bajo una licencia de Creative Commons Reconocimiento-NoComercial 3.0 Unported. Justicia de transición en España: claves para aprobar una asignatura pendiente Transitional Justice in Spain Universidad de Oviedo, España lucpayero@gmail.com Abstract justice put forward by L. Joinet –truth, justice and reparation– will frame this analysis. Firstly, the protection of human rights, as agreed within the specialized literature, would be met. Key words: Francoist crimes, International Criminal law, Transitional justice in Spain, Amnesty Law, Historical memory, Spanish transition Resumen El objetivo de este trabajo es analizar la política española en materia de justicia transicional. To- mando como referencia las tres dimensiones de la justicia de transición señaladas por L. Joinet - ción, serán sugeridas algunas medidas que, de adoptarse, acercarían a España a lo que la literatura especializada considera que son los estándares internacionales en materia de protección de los Derechos Humanos. Palabras clave: Crímenes franquistas, Derecho internacional penal, Justicia de transición en España, Ley de Amnistía, Memoria histórica, Transición española http://creativecommons.org/licenses/by-nc/3.0/deed.es_ES mailto:lucpayero@gmail.com artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente210 1. La Transición española Tras la muerte de Franco se inicia en España un proceso de transición a la democracia que culmina con la aprobación de la Constitución de 1978. La española puede ser adecuada- mente descrita como una transición «vía transacción», puesto que se trata de un supuesto en el que una dictadura «inicia la transición estableciendo ciertos límites al cambio políti- co y permaneciendo como una fuerza electoral relativamente significativa a lo largo de la [misma]» (Share y Mainwaring, 1986: 88). Se lleva a cabo una negociación «generalmente implícita entre las elites del régimen autoritario y [de] la oposición democrática», por lo que las partes mantienen una desigualdad de partida: «el régimen [dictatorial] toma la iniciativa de dar comienzo a la liberalización1 y durante la mayor parte del proceso per- manece en una posición que le permite ejercer una influencia significativa sobre el curso del cambio político» (1986: 88). Ello condujo a que el saldo final del proceso beneficiase a quienes comenzaron con ventaja, puesto que ellos diseñaron las líneas maestras del ré- gimen democrático de acuerdo a sus intereses. He aquí algunos ejemplos. En primer lugar, la monarquía impuesta por Franco en la persona de Juan Carlos de Borbón se mantuvo hasta hoy sin que el pueblo fuera consultado acerca de la forma de gobierno que prefería –a pesar de que el sistema democrático inmediatamente anterior era el de la II República– ni se exigiera al monarca que jurase la Constitución –quien, por el contrario, prometió respetar las Leyes Fundamentales del Reino hasta en dos ocasiones–. Incluso cuando Juan Carlos decidió abdicar en su hijo para lavar la cara a una institución salpicada por los escándalos no se planteó seriamente la necesidad de dotar de legitimidad democrática a la monarquía a través de la celebración de un plebiscito. En segundo lugar, las líneas generales del sistema electoral actual ya se contenían en el Real Decreto-ley 20/1977, de 18 de marzo, que establecía las normas rectoras del proceso para la elección de las Cortes que habrían de aprobar la Constitución. Condicionados por la Ley para la Reforma Política,2 los contenidos del Decreto-ley de 1977 tendrían continuación en la Constitución y en la Ley Electoral.3 A grandes rasgos, puede afirmarse que el diseño del sistema electoral español consagra el bipartidismo, otorga mayor peso a las provincias escasamente pobladas y rurales, de tendencia conservadora, y sólo arroja resultados proporcionales en las circunscripciones de mayor tamaño, actuando como un procedimiento cuasi-mayoritario en el resto. Todo ello conduce a que el sistema produzca unos efectos psicológicos que tienden a reforzar sus efectos materiales (el llamado «voto útil»). Como consecuencia aparece un sentimiento generalizado de ausencia de alterna- tivas y, por tanto, cunde la sensación de que la mayor parte de los ciudadanos no están representados por las opciones políticas que gobiernan. En tercer lugar, la unidad nacional resultó de una imposición extraparlamentaria sin cuya aceptación los militares no hubiesen permitido que el proceso de elaboración cons- 1. Lo que no quiere decir que lo hiciera de manera voluntaria: «los cambios se dan en respuesta a la gran moviliza- ción popular» (Monedero, 2013: 136). 2. Ley 1/1977, de 4 de enero, para la Reforma Política. 3. Ley Orgánica 5/1985, de 19 de junio, del Régimen Electoral General. Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 211 titucional continuara (Solé Tura, 1985: 99-100). Más aún, se encomienda al ejército la defensa de esa unidad nacional. En cuarto lugar, y aunque se ha dicho que la Constitución española permite una interpretación tendencialmente socialista o más neoliberal, lo cierto es que no estamos ante un texto constitucional revolucionario o rupturista –como la Constitución italiana de 1948 o la portuguesa de 1976–, sino ante una Constitución mixta. Y es que «en las transiciones vía transacción acometidas por regímenes autoritarios conservadores cabe esperar que los líderes del régimen gobiernen evitando cambios socioeconómicos de orden estructural» (Share y Mainwaring, 1986: 95). Eso se consiguió en España a través de los Pactos de la Moncloa, que fijaron «las paredes maestras del modelo económico» (Pisare- llo, 2011: 178). La evolución posterior hacia una mayor liberalización de los mercados y una paralela reducción de los derechos sociales vendría marcada por la incorporación a la Comunidad Económica Europea en 1986. El resultado fue la consagración de «una auténtica Constitución económica dirigente, pero invertida, que regulaba con detalle su programa tecnocrático y neoliberal, frenando cualquier intento de regeneración demo- crática y proscribiendo la posibilidad de que dentro de los Estados pudieran ejecutarse políticas keynesianas capaces de contener al capital financiero» (Pisarello, 2011: 186). La crisis económica actual y la reforma del artículo 135 de la Constitución para dar prioridad al pago de la deuda sobre cualquier gasto social o de otro tipo terminaron por dibujar los rasgos de la Constitución económica en España. En quinto lugar, y a los efectos de este trabajo, reviste una importancia fundamental otra característica típica de las transiciones vía transacción, como es «la ausencia de me- didas de castigo dirigidas contra los líderes del periodo autoritario» (Share y Mainwaring, 1986: 95). Se puede entender que los líderes de un régimen dictatorial se nieguen a iniciar «la democratización a no ser que les sea garantizado el que no vayan a ser procesados» (1986: 95), pero lo que llama la atención del caso español es que transcurridos casi cua- renta años desde la aprobación de la Constitución, con un sistema de democracia formal plenamente consolidado, sigan sin adoptarse apenas medidas de justicia de transición. Y ello a pesar de los recientes desarrollos del Derecho internacional en materia de pro- tección de las víctimas de violaciones de Derechos Humanos y desapariciones forzosas. Más aún, el discurso oficial acerca de la Transición en España afirma que representó un proceso modélico, digno de ser exportado a otras latitudes4 y que, aunque tuvo sus ligeras sombras, éstas aparecen compensadas por sus muchas luces y se explican acudiendo al 4. Según Elster, «el caso español es único dentro de las transiciones a la democracia, por el hecho de que hubo una decisión deliberada y consensuada de evitar la justicia transicional […]. En los hechos esta decisión consensuada de ignorar el pasado no tuvo imitadores directos» (2006: 80-81). Es más, los únicos ejemplos que pueden extraerse de ella son la «impunidad de grandes criminales, la mentira, el silencio, el abandono y desprecio a las víctimas de la represión» (Sáez, 2010: 30-31). artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente212 contexto de terrible confrontación social5 de la época.6 No obstante, un estudio compa- rativo del caso español y otros supuestos transicionales permite comprobar que existen modelos alternativos en los que, al contrario que en España, se aplicaron medidas de jus- ticia de transición de manera más amplia y efectiva y se procedió a recuperar la memoria democrática anterior a la dictadura. A continuación analizaré con detalle los déficits que presenta la justicia transicional en España para intentar demostrar que, lejos de resultar ejemplar, la Transición española consagró un modelo de impunidad para los criminales de la dictadura. En lugar de ser exportada, la Transición española debiera ser revisada y sus errores, en la medida de lo posible, enmendados.7 2. Justicia de transición en España El término justicia de transición (transitional justice) hace referencia a «la variedad de pro- cesos y mecanismos asociados con los intentos de una sociedad por resolver los problemas derivados de un pasado de abusos a gran escala, a fin de que los responsables rindan cuen- tas de sus actos, servir a la justicia y lograr la reconciliación. Tales mecanismos pueden ser judiciales o extrajudiciales» (Naciones Unidas, 2004: §8). Es importante destacar que las medidas de justicia transicional no sólo resultan de aplicación en sociedades en las que se está gestando la democracia –como sería España a mediados de los años setenta–, sino que Estados con un sistema democrático asentado, al menos desde un punto de vista formal –como la España actual– también pueden –y deben– recurrir a ellas a fin de saldar cuentas con su pasado. Tras el informe de Joinet sobre la impunidad de los autores de violaciones de los De- rechos Humanos, se suele entender que la justicia de transición se compone de tres di- mensiones: verdad, justicia y reparación (1997). Veamos en qué consiste cada una de ellas. 2.1. Verdad El principio de verdad tiene como finalidad esclarecer los hechos ocurridos durante la dictadura para determinar si constituyeron una vulneración de los derechos fundamenta- les. La verdad, en este sentido, presenta una doble dimensión: individual y colectiva. En el 5. Algunos elementos de ese contexto que permiten comprender mejor el desarrollo de la Transición española –aun- que sus hagiógrafos no siempre los señalen– son, además de la violencia y la conflictividad social, la crisis económica mundial y la desmovilización de la sociedad, fomentada esta última –según explica Ortí (1989)– tanto por la bur- guesía conservadora como por las elites de los partidos y organizaciones sindicales antifranquistas que se sumaron al consenso. La desactivación de la calle favoreció la estrategia de cambio controlado y limitado a los aspectos formales de la democracia. 6. Vid., a modo ilustrativo, Viver i Pi-Sunyer (1998: 29). 7. A este respecto, las reflexiones de Queralt son absolutamente pertinentes: «como decía Heráclito no se puede entrar dos veces en el mismo río lo que, aplicado a nuestro caso, […] significa que no tiene sentido reescribir la His- toria. Pero lo que no decía Heráclito es que haya que bañarse siempre en el mismo pútrido río y que no asista el de- recho al saneamiento de tales aguas. No se trata de revisar la Historia […]. De lo que se trata es de devolver a quienes impunemente y con publicidad se les arrebató lo que hace que una persona sea persona: su dignidad» (2011: 929). Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 213 plano individual se reconoce un derecho a saber qué pasó cuyos titulares son las víctimas y sus familiares y amigos. Este derecho entraña un deber correlativo de investigar los hechos a cargo del Estado. En el plano colectivo, la verdad consiste en el derecho de la sociedad a conocer la historia para evitar su repetición. Es lo que se conoce como derecho a la memoria histórica. En contrapartida, el Estado tiene un deber de preservar esa memoria «a fin de prevenir contra las deformaciones de la historia» denominadas revisionismo y negacionismo (Joinet, 1997: §17). Las medidas que sugiere Joinet para proceder a esclarecer la verdad son dos: la crea- ción de comisiones no judiciales de investigación, más conocidas como comisiones de la verdad, y la preservación de todos aquellos archivos relacionados con las violaciones de Derechos Humanos (1997: §18). Pues bien, en España no se creó ninguna comisión de la verdad durante la Transición ni aun después. El consenso, tan alabado, que posibilitó el tránsito pacífico8 de la dicta- dura a la democracia se basó en un pacto de silencio y olvido del pasado, tanto el infame –el golpe de Estado y la dictadura– como el democrático –la República y la resistencia antifranquista–. Se pretendía evitar la apertura de viejas heridas para, de ese modo, lograr la reconciliación nacional. Semejante actitud contribuyó a difundir la tesis de la equidis- tancia entre ambos bandos, responsables por igual de crímenes terribles.9 Con la Ley de Memoria Histórica10 se perdió una buena oportunidad de avanzar en el esclarecimiento de la verdad. Pese a que entre los objetivos declarados de la norma se encuentra la recuperación de la memoria personal y familiar «de quienes padecieron per- secución o violencia, por razones políticas, ideológicas o de creencia religiosa, durante la Guerra Civil y la Dictadura» (artículo 1.1), así como, en el marco de las políticas públi- cas, fomentar «los valores y principios democráticos, facilitando el conocimiento de los hechos y circunstancias acaecidos durante la Guerra Civil y la Dictadura y asegurando la preservación de los documentos relacionados con ese período histórico y depositados en archivos públicos» (artículo 1.2), lo cierto es que la regulación es insuficiente para colmar el deber de memoria e investigación que incumbe al Estado –más aún, en ningún lugar aparecen recogidas las obligaciones del Estado, sólo se habla de derechos de las víctimas y sus familiares– y la aplicación no ha sido demasiado efectiva.11 8. A juicio de Monedero, «que la transición fue pacífica es un mito injustificable» (2013: 142), teniendo en cuenta la violencia brutal que desplegaron tanto la extrema derecha como la extrema izquierda, ETA, el GRAPO y las fuer- zas y cuerpos de seguridad del Estado. En palabras de Sánchez Cuenca, «exceptuando la transición rumana […], la española ha sido la más sangrienta en Europa» (2009: 10). Una buena descripción de tal violencia puede leerse en Sánchez Soler (2010). 9. Resultan sumamente ilustrativas las siguientes palabras de Monedero: «si […] la mejor forma de esconder un elefante en la Gran Vía es llenando la Gran Vía de elefantes, para que no hubiera culpables de la guerra era necesario que todos fueran culpables. Se sentaban las bases para entender la Guerra Civil como el resultado de un enfren- tamiento fratricida entre los españoles, un pueblo que aún no había aprendido a convivir pacíficamente. El relato era amable para los hijos de los vencedores, que ganaban en moralidad respecto de sus padres, pero seguía siendo inmoral para la consciencia de los vencidos, culpables solamente de haber intentado defender la legalidad vigente en 1936» (2013: 169). 10. Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas a favor de quienes padecieron persecución o violencia durante la guerra civil y la dictadura. 11. Mucho menos desde que el Partido Popular (PP) dejó sin fondos la aplicación de la Ley de Memoria Histórica. artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente214 La ley contempla tres dimensiones del derecho a la verdad: la localización y exhu- mación de fosas comunes, la investigación histórica acerca de la dictadura y la gestión de los monumentos y símbolos públicos. El primer asunto se contiene en los artículos 11-14. El artículo 11.1 regula el derecho de los familiares a conocer el paradero de sus muertos en los siguientes términos: «las Administraciones Públicas, en el ejercicio de sus competencias, facilitarán a los descendientes directos de las víctimas que así lo soliciten las actividades de indagación, localización e identificación de las personas desaparecidas violentamente durante la Guerra Civil y la represión política posterior y cuyo paradero se ignore» (cursiva añadida). Esta colaboración del Estado con los particulares en la búsqueda de los cadáveres de los desaparecidos, que se iniciará siempre a instancia de parte, se queda lejos de lo que precep- túan las normas internacionales en la materia y consagra una especie de «privatización de la verdad» (Amnistía Internacional, 2006).12 Y es que el deber de recordar e investigar que corresponde al Estado no depende de que lo pidan las partes; incluso los Estados habrían de alentar a las víctimas a ejercer su derecho a la memoria (Naciones Unidas, 2005: §12). En los artículos 20-22 se establecen medidas acerca de los estudios de investigación histórica: de este modo, se «constituye el Centro Documental de la Memoria Histórica» en Salamanca (artículo 20.1), estableciéndose «el derecho de acceso a los fondos docu- mentales depositados en los archivos públicos y la obtención de las copias que se soliciten» (artículo 22.1). Particularmente importantes son las disposiciones acerca de la gestión de los monu- mentos y simbología públicas que se contienen en los artículos 15-17. El artículo 15.1 dice: «las Administraciones Públicas, en el ejercicio de sus competencias, tomarán las medidas oportunas para la retirada de escudos, insignias, placas y otros objetos o men- ciones conmemorativas de exaltación, personal o colectiva, de la sublevación militar, de la Guerra Civil y de la represión de la Dictadura». La aplicación de este precepto ha sido limitada y todavía perduran monumentos de exaltación franquista en diferentes ciudades españolas, así como calles cuyos nombres recuerdan hechos o personajes relacionados con ese pasado luctuoso. Más aún, el artícu- lo 15.2 prevé una importante limitación a la retirada de símbolos franquistas: «cuando concurran razones artísticas, arquitectónicas o artístico-religiosas protegidas por la ley». Según ha señalado Capellà, si tenemos en cuenta «que buena parte de estos símbolos fas- cistas se encuentran todavía en iglesias y fachadas de edificios públicos, esta disposición La justificación ofrecida es que «no se debe remover el pasado». Y es que incluso las labores de identificación y ex- humación de cadáveres han quedado sin financiación, pese a que cuando el PP llegó al poder en 2012 aseguró que ésta iba a ser la única acción memorialista que, no sólo mantendría el presupuesto, sino que lo vería incrementado. Como el tiempo ha demostrado, otra promesa vacua (Pérez, 2015). 12. En este sentido, y como bien señalaba Gómez Isa, «al final, parece que va a ser la sociedad civil, con la ayuda de los historiadores, quien elabore la narrativa del sufrimiento de las víctimas de la Guerra Civil y el franquismo, algo que, aunque imprescindible, resulta totalmente insuficiente. […]. La verdad por sí sola no [basta], tiene que ir acompañada de un reconocimiento público del sufrimiento. La verdad no se puede quedar en el círculo más íntimo de las víctimas, sino que tiene que ser reconocida oficial y públicamente» (2012: 179). Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 215 corre el peligro de quedar en papel mojado cuando no haya voluntad política de eliminar monumentos y simbología franquista» (2009: 244). Y eso es lo que ha ocurrido. Aun así, no siempre resulta conveniente la destrucción de todos los símbolos de la dictadura; en los casos en que exista un valor artístico o, incluso, histórico relevante (véa- se, por ejemplo, el Valle de los Caídos), conviene mantenerlo, pero dándole una nueva orientación antifascista.13 De este modo, se convierte en un lugar de memoria para que las generaciones venideras sepan y vean cuán terrible fue el régimen dictatorial: es lo que ha pasado en Argentina con la antigua Escuela de Mecánica de la Armada (ESMA), con- vertida desde 2004 en un museo para la memoria y la promoción de los Derechos Hu- manos. Esta permanencia no alcanza en ningún caso a los nombres de las calles y plazas que conmemoran personajes o hechos relacionados con el pasado funesto. Como balance general, podría decirse que en la Ley de Memoria Histórica «brillan por su ausencia medidas para tratar de garantizar el derecho individual de las víctimas y el derecho colectivo de la sociedad a conocer toda la verdad» (Gómez, 2012: 179). 2.2. Justicia El principio de justicia es un requisito básico para evitar la impunidad. La justicia im- plica un derecho de las víctimas a un proceso justo y eficaz donde, si procede, se castigue a su opresor y, correlativamente, un deber del Estado de investigar concienzudamente las violaciones de Derechos Humanos que se hayan cometido, perseguir a sus autores, juzgarlos y, finalmente, condenarlos si se demuestra su culpabilidad. En su informe, Joinet sugería la adopción de dos tipos principales de medidas a fin de implementar adecuadamente el principio de justicia. En primer lugar, la concesión a la víctima de la «posibilidad de hacer valer sus derechos beneficiándose de un recurso justo y eficaz (…) para que su opresor sea juzgado» (1997: §26). Lo ideal es que la competen- cia para juzgar recaiga sobre los tribunales nacionales y que se reserve excepcionalmente la competencia a un tribunal internacional en aquellos casos en los que los primeros no puedan llevar a cabo esa labor de manera imparcial (1997: §28). En segundo lugar, el re- lator especial recomendaba la aplicación restrictiva de ciertas reglas jurídicas para impedir que favoreciesen la impunidad de los agresores. Así, la prescripción no debe regir en los crímenes contra la humanidad ni ha de contar para la misma el período de tiempo donde no haya existido un recurso eficaz (1997: §31); no cabe amnistiar a los responsables de violaciones de Derechos Humanos «en tanto las víctimas no hayan obtenido justicia por la vía de un recurso eficaz» (1997: §32) y el derecho de reparación en ningún caso puede verse afectado por la amnistía; tampoco es posible que los autores de vulneraciones de derechos gocen de los derechos de «refugio político, asilo territorial o diplomático» (1997: §33) o se amparen en el carácter político de sus crímenes a fin de evitar la extradición 13. A ello se refería De Greiff al decir: «ciertos objetos no pueden propiamente ser removidos y algunos pueden o deben mantenerse con una necesaria contextualización y «resignificación» para perder el carácter divisorio que puedan tener y poder contribuir a la pedagogía ciudadana y la memoria. El Valle de los Caídos es un buen ejemplo de ello» (2014: §29). artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente216 (1997: §34); ni el principio de obediencia debida ni el arrepentimiento pueden actuar como causa de exoneración de la responsabilidad penal (1997: §36-37); la jurisdicción de los tribunales militares ha de quedar limitada a las «infracciones específicamente mili- tares cometidas por militares», excluyéndose las violaciones graves de Derechos Humanos (1997: §38); por último, los jueces nombrados de manera ilegítima deben ser destituidos, mientras que aquellos que fueron removidos del cargo durante la dictadura han de ser reintegrados a su puesto (1997: §39). De los tres aspectos que comporta la justicia de transición, el derecho a la justicia ha sido, quizá, el que ha alcanzado un menor desarrollo en España. Si no se esclareció la verdad de lo ocurrido, mucho menos iba a procederse a juzgar a los responsables. Parece que «ni siquiera durante los años previos al inicio formal de la transición, y ni aun los partidos de la extrema izquierda, demandaron abiertamente la persecución y castigo ju- dicial de los responsables de los crímenes pasados» (Chinchón, 2007: 134). Y es que «las demandas más repetidas de la oposición moderada […] fueron, además de la amnistía, la [abolición] de las jurisdicciones especiales. Todo lo relacionado con la supresión de los cuerpos represivos y la devolución del patrimonio expoliado a los particulares (por la Ley de Responsabilidades Políticas de 1939) tendió a dejarse de lado y las medidas de justicia política nunca llegaron a plantearse con la suficiente claridad» (Aguilar, 2001 :16). Las dos peticiones de la oposición democrática se cumplieron, pero en ambos casos las concesiones contenían un gusano oculto. Por lo que se refiere a la eliminación de las ju- risdicciones especiales, el Tribunal de Orden Público (TOP) desapareció en enero de 1977, pero sus magistrados no fueron depurados, sino que se integraron automáticamente en la sala de lo Penal de la Audiencia Nacional (AN), un tribunal más que cuestionable en un Estado de derecho (vid. Andrés, 2012: 169-170). Por lo que hace a la amnistía, se solicitaba para los presos políticos de la dictadura. La Ley 46/1977, de 15 de octubre, constituyó el hito fundamental en este sentido, al amnistiar «todos los actos de intencionalidad política, cualquiera que fuese su resultado, tipificados como delitos y faltas, realizados al día 15 de diciembre de 1976», así como los cometidos entre esa fecha y el 15 de junio de 1977 «cuando en la intencionalidad política se aprecie además un móvil de restablecimiento de las libertades públicas o de reivindica- ción de autonomías de los pueblos de España». Si los actos con esos fines no supusieron «violencia grave contra la vida o la integridad de las personas» la amnistía se extiende hasta el 6 de octubre de 1977 (artículo 1.1). No obstante, durante el trámite parlamentario se colaron dos cláusulas que amnistiaban también a los violadores de Derechos Humanos y que resultarían finalmente aprobadas: «están comprendidos en la amnistía […] los delitos y faltas que pudieran haber cometido las autoridades, funcionarios y agentes del orden público, con motivo u ocasión de la investigación y persecución de los actos incluidos en esta Ley, [así como] los delitos cometidos por los funcionarios y agentes del orden público contra el ejercicio de los derechos de las personas» (artículo 2 e, f ). A partir de ese momento, en las escasas ocasiones en que se intentaron investigar y juzgar los crímenes de la dictadura siempre fue alegada la Ley de Amnistía como un impe- Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 217 dimento legal absoluto.14 El argumento se resume más o menos así. Cuando se aprobó la Ley de Amnistía, el Derecho internacional de los Derechos Humanos se hallaba en paña- les, por lo que España no incumplió la obligación de investigar y perseguir las violaciones de Derechos Humanos que establecen, entre otros, el Estatuto de Roma de la Corte Penal Internacional (1998) o la Convención contra la tortura y otros tratos o penas crueles, inhumanos o degradantes (1984), puesto que tales normas no habían sido promulgadas todavía. España había ratificado sólo unos meses antes el Pacto Internacional de Derechos Civiles y Políticos (PIDCP), cuyo artículo 2.3 reconoce el derecho a un recurso efectivo a toda persona que vea vulnerados los derechos que el propio tratado contempla; y ello «aun cuando tal violación hubiera sido cometida por personas que actuaban en ejercicio de sus funciones oficiales». Autores como Ambos (2009a) y Gil (2009) consideran que, en primer lugar, no cabe una aplicación retroactiva del PIDCP, por lo que si los hechos ocurrieron con anterioridad a su ratificación –como es el caso– no habría derecho a recurso. En segundo lugar, incluso aunque se admitiese la retroactividad del PIDCP, el recurso no tendría que ser necesaria- mente de tipo penal, sino que bastaría el reconocimiento de acciones en el orden civil. A pesar de que España también incumplió sus obligaciones internacionales en este punto, como expresamente reconoce Gil (2009: 109), ello no significa que la Ley de Amnistía contradijese el Derecho internacional del momento. En tercer lugar, e incluso aunque la Ley de Amnistía fuese derogada, los crímenes habrían prescrito, por lo que tampoco sería posible su persecución penal. Esta es la opinión que siguen tanto el Tribunal Supremo (TS)15 como los dos principales partidos políticos de ámbito estatal. 14. El caso Ruano constituye uno de los pocos ejemplos en los que se llevaron ante los tribunales crímenes (asesinato y tortura) cometidos por funcionarios durante el franquismo. Enrique Ruano era un joven estudiante al que detuvo la policía en 1969 por repartir propaganda de Comisiones Obreras (CCOO). A los tres días, su cuerpo apareció muerto en el patio interior de una casa. Según la versión oficial, Ruano se tiró por la ventana intentando escapar (suicidio). Tal y como relata Aguilar, «dicha muerte no fue debidamente investigada e incluso se manipularon una serie de documentos y pruebas para intentar justificar la acción de Ruano basándose en su supuesto desequilibrio psicológico. […]. En 1992, los tres policías implicados en el caso se hallaban en activo en el cuerpo policial y nunca fueron castigados ni siquiera por negligencia en la custodia del detenido. En esta fecha, la familia decidió reabrir el caso y llevarlo a la justicia. Sin embargo, los abogados de los acusados adujeron, por un lado, que los veinte años transcurridos impedían, según la legislación en vigor, juzgar ningún delito y, por otro, que la Ley de Amnistía de 1977 se había aprobado para evitar este tipo de juicios. Al final, la justicia decidió que el delito no había prescrito, pero que la ausencia de pruebas determinantes (puesto que éstas se habían hecho desaparecer con anterioridad), obligaba a absolver a los tres policías implicados» (2001: 31-32). Es importante destacar, no obstante, la conclusión que extrae A. Gil de la decisión de la Audiencia Provincial de Madrid (Auto 19 diciembre 1995) en la que, «frente a la pretensión de la defensa y del Ministerio Fiscal de con- siderar los hechos amnistiados, admitió la tesis de la acusación particular afirmando que la aplicación de la Ley de Amnistía exigía un juicio valorativo sobre la intencionalidad política de los acusados que, por el momento, no había sido probada. [Por tanto, habría que deducir, en primer lugar], una interpretación restrictiva de la Ley del 77: donde dice que se amnistían los delitos cometidos por los funcionarios con la ocasión de la persecución de delitos políticos debe exigirse también en la comisión de dichos delitos el mismo móvil político. [En segundo lugar], la amnistía no impide la investigación y constatación de los hechos y del móvil político para los delitos de los funcionarios que no hubieran sido perseguidos con anterioridad, sino que, por el contrario, la constatación por el tribunal de estos presu- puestos es condición para su aplicación. Esta interpretación acercaría más nuestra Ley de Amnistía a un mecanismo de averiguación de la verdad y no de olvido absoluto» (2009: 86). 15. El Auto del TS de 28 de marzo de 2012, que resuelve la cuestión de competencia planteada por Garzón en el caso de las fosas del franquismo, hace referencia a todos estos asuntos. Con respecto a la irretroactividad de la aplica- artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente218 No obstante, existe una opinión alternativa16 que, sobre la base de los recientes desa- rrollos del Derecho internacional en materia de protección de los Derechos Humanos, y teniendo en cuenta el precedente sentado por la jurisprudencia de la Corte Interamerica- na de Derechos Humanos (CIDH), afirma la necesidad de derogar la Ley de Amnistía y perseguir los crímenes del franquismo. A ello obligan la coherencia política y la responsa- bilidad moral que, pese a lo que algunos autores parecen sugerir, no se encuentran reñidas con la corrección jurídica.17 ción de las normas penales internacionales dice: «el principio de legalidad y el de interdicción de la retroactividad de las normas sancionadoras no favorables (artículo 9.3 de la Constitución), que prohíben la aplicación retroactiva de las disposiciones sancionadoras a los hechos anteriores a su vigencia, impiden operar con la categoría «delitos contra la humanidad» para denotar jurídicamente y tratar procesalmente las acciones criminales de las que fueron víctimas las personas a las que se refieren las denuncias que motivan las actuaciones de referencia». También alude a la prescripción de los delitos: «por la fecha de iniciación de dichas causas, las acciones criminales sobre las que versan deben considerarse prescritas, a tenor de lo previsto en los artículos 131 y 132 del Código Penal. Es así, debido, de una parte, a que el delito de detención ilegal de carácter permanente sin dar razón del paradero de la víctima, presente en el Código Penal de 1928, desapareció en el de 1932, para ser reincorporado al de 1944, de modo que no estuvo vigente durante la mayor parte del tiempo en que tuvieron lugar las acciones que se trataría de perseguir. De otra, porque, como se dice en la STS 101/2012, el argumento de la permanencia del delito fundado en la hipotética subsistencia actual de situaciones de detención producidas en torno al año 1936, carece de plausi- bilidad. Y, en fin, porque, aun admitiendo razonablemente […] que, por la imposibilidad para los familiares de los afectados de instar la persecución de esos delitos durante la dictadura, hubiera que posponer el inicio del cómputo de la prescripción a la entrada en vigor de la Constitución, el 29 de diciembre de 1978, incluso en este supuesto, el plazo de 20 años habría transcurrido en todo caso». Finalmente, también menciona la vigencia de la Ley de Amnistía: «la Ley 46/1977 […] forma parte del ordenamien- to vigente. […] Porque a tenor de lo que dispone su artículo 6, la amnistía determinará en general la extinción de la responsabilidad criminal derivada de las penas impuestas o que pudieran imponerse; y porque, conforme a su artículo 9, será aplicable cualquiera que sea el estado de tramitación del proceso, no podría dejar de proyectar sus efectos sobre los hechos a que se refieren las denuncias que están en el origen de las actuaciones en las que se han suscitado las cuestiones que ahora se deciden» (FJ 2º). 16. Vid. Chinchón (2007, 2008), Queralt (2007), Estirado (2009), Sáez (2009), Garcés (2010), Paredes (2010, 2013) y Valencia (2012). 17. Los defensores de la vigencia de la Ley de Amnistía y, en consecuencia, de la imposibilidad de juzgar los crímenes de la dictadura, apelan a los valores del garantismo jurídico y del iuspositivismo legalista «para evitar resultados que político-criminalmente no consideran deseables» (Paredes, 2010). Un buen ejemplo lo encontramos en Gil: «se ha criticado a los tribunales españoles la incoherencia de perseguir crímenes cometidos en otros países desconociendo leyes de amnistía, mientras no persigue los cometidos en España amparados por una ley de amnistía. Sin embargo, en un país con división de poderes y con independencia judicial, las decisiones de los tribunales no tienen por qué ser políticamente correctas ni políticamente coherentes, sino sólo jurídicamente correctas y […] entiendo que la decisión de la Audiencia Nacional respecto de las leyes argentinas de Punto Final y Obediencia Debida es jurídi- camente correcta, como también lo es someterse a la propia ley de amnistía, que sí vincula a los jueces españoles –no a los extranjeros cuando persigan crímenes claramente tipificables como internacionales en el momento de su comisión–» (2009: 152). Sin embargo, España no coopera con los tribunales extranjeros que investigan crímenes franquistas, como quedó demostrado recientemente: cuando en Argentina se abrió un proceso judicial en cuyo marco la jueza Servini de Cubría dictó orden internacional de detención contra diecinueve altos cargos franquistas, el Ministerio del Interior denegó su extradición, alegando que los delitos habían prescrito y estaban amparados por la amnistía de 1977. Aun así, y según apunta Valencia, «la corrección jurídica no se puede separar de la coherencia política ni, sobre todo, de la responsabilidad moral, a menos que se pretenda que la función jurisdiccional consiste tan sólo en hacer dere- cho formal e impartir justicia ritual, lo cual termina por convertirse en positivismo puro y duro al servicio del orden o desorden establecido» (2012: 190). Además, los resultados que los defensores de la Ley de Amnistía pretenden evitar «resultarían compatibles (y aquí estriba la trampa, en negarlo) con el Derecho positivo, además de ser muy valiosos en términos político-criminales (reducción del nivel de impunidad, satisfacción de Derechos Humanos), en Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 219 2.3. Reparación La reparación que se concede a las víctimas de violaciones de Derechos Humanos presenta una doble dimensión: individual y colectiva. En el plano individual, la repara- ción consiste en un derecho a un recurso eficaz cuyo titular es la víctima, sus familiares directos, las personas a cargo de la víctima o quienes estuviesen estrechamente vinculados con ella. El deber de reparación a cargo del Estado incluye tres tipos de medidas: de resti- tución, de compensación o indemnización y de rehabilitación o readaptación. De acuerdo con la Resolución 60/147,18 «la restitución, siempre que sea posible, ha de devolver a la víctima a la situación anterior. […] Comprende, según corresponda, el restablecimiento de la libertad, el disfrute de los Derechos Humanos, la identidad, la vida familiar y la ciu- dadanía, el regreso a su lugar de residencia, la reintegración en su empleo y la devolución de sus bienes» (principio 19). El principio 20 dispone la indemnización «por todos los perjuicios económicamente evaluables», entre los que se cuentan el daño físico y mental, la pérdida de oportunidades, los daños materiales y pérdida de ingresos, incluido el lucro cesante, los perjuicios morales y los gastos de asistencia jurídica o de expertos, atención médica y psicológica. Por último, la rehabilitación incluirá «atención médica y psicológi- ca, así como servicios jurídicos y sociales» (principio 21). En el plano colectivo, el derecho a la reparación alude al ámbito moral (no económico) y comprende medidas de carácter simbólico relacionadas con la memoria histórica (algu- nas de ellas ya fueron mencionadas cuando se explicó el derecho a la verdad, puesto que verdad y reparación se hallan íntimamente conectadas en su dimensión colectiva): es lo que en la Resolución 60/147 se incluía bajo el concepto de satisfacción (principio 22). De este modo, el Estado se halla obligado a adoptar «medidas eficaces para conseguir que no continúen las violaciones, la verificación de los hechos y la revelación pública y completa de la verdad […], la búsqueda de las personas desaparecidas […], una declaración oficial o decisión judicial que restablezca la dignidad, la reputación y los derechos de la víctima […], una disculpa pública que incluya el reconocimiento de los hechos y la aceptación de responsabilidades, la aplicación de sanciones judiciales o administrativas a los responsables de las violaciones, conmemoraciones y homenajes a las víctimas, la inclusión de una ex- posición precisa de las violaciones ocurridas en la enseñanza de las normas internacionales de Derechos Humanos y del derecho internacional humanitario». términos meramente políticos y también en términos morales» (Paredes, 2010). En cualquier caso, «la incoherencia que […] revela en la proyección internacional de nuestro Estado […] la vocación expresada por nuestros órganos jurisdiccionales para erigirse en custodios del respeto de los Derechos Humanos por doquier, a través del empleo de la herramienta de la jurisdicción universal contemplada en el artículo 23.4 LOPJ», ha sido subsanada mediante las reformas operadas por la LO 1/2009, 3 noviembre, y la LO 1/2014, 13 marzo, que modificaron la LO 6/1985, 1 julio, del Poder Judicial, en lo relativo a la justicia universal (González, 2009: 84). Tras esta desnaturalización del instituto de la justicia universal ni se investigarán los crímenes de genocidio y de lesa humanidad ocurridos en España ni tampoco los que hayan tenido lugar en cualquier otro Estado. 18. Resolución 60/147, de la Asamblea General, que aprueba los Principios y directrices básicos sobre el derecho de las víctimas de violaciones manifiestas de las normas internacionales de Derechos Humanos y de violaciones graves del derecho internacional humanitario a interponer recursos y obtener reparaciones (16 diciembre 2005). artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente220 El ámbito de la reparación individual es, sin duda, el que ha alcanzado un mayor grado de desarrollo en España –más concretamente, en su faceta indemnizatoria–; aún así, ha- bría muchas cosas que mejorar de acuerdo con los estándares internacionales y siguiendo el ejemplo de otros países que también se enfrentaron a un pasado dictatorial. La repa- ración en España se ha entendido fundamentalmente en su vertiente económica, lo cual resulta insuficiente.19 Por esa razón se ha dicho que la Transición española responde a un «modelo de olvido del pasado «absoluto» con rehabilitación» de las víctimas (Chinchón, 2007: 136). Como ha señalado Sauca, hasta el 20 de noviembre de 2002 –fecha en que, por primera vez, el Congreso de los Diputados aprueba una declaración de reconocimien- to a las víctimas de la guerra y el franquismo20– «se habían producido diversos reconoci- mientos de derechos e indemnizaciones a los combatientes republicanos que en la mayoría de casos suponían la equiparación de derechos de los combatientes por la República con los de los vencedores» (2008: 75). Así, se llega a la Ley de Memoria Histórica, donde también se contienen medidas de reparación colectivo-simbólicas como parte del derecho a la memoria histórica.21 Por lo que se refiere a la reparación pecuniaria individual, la Ley de Memoria Histórica amplía los ámbitos de aplicación de algunos derechos ya existentes e introduce otros nuevos (vid. artículos 5-10, 18 y Disposiciones Adicionales 4-5 y 7). Algunos déficits de las políticas de reparación en España son los siguientes: no se ha construido ningún monumento nacional de homenaje a las víctimas y, por el contrario, subsisten numerosos símbolos de la dictadura (el Valle de los Caídos sin reorientación antifascista alguna,22 estatuas, placas conmemorativas, nombres de calles, listas de los 19. La concepción económica de la reparación no agota el concepto: vid. Sentencia de la CIDH, Caso Loayza Ta- mayo c. Perú, 27 noviembre 1998; Gómez (2006: 57); Villa Gómez (2013). 20. Debe señalarse que la declaración parlamentaria no condena el franquismo explícitamente, sino el totalitarismo y la violencia en sentido genérico, a la vez que reconoce el sufrimiento de las víctimas. Las condiciones que puso el PP para aprobar esta Proposición no de ley fueron dos: que se sacasen definitivamente del debate político esos asuntos y que se tuviese especial cuidado en no reabrir viejas heridas y rencores (Atencia Robledo, Diario de Sesiones del Congreso de los Diputados [DSCD] núm. 625, 20 noviembre 2002, p. 20517). De ahí que cuando en 2013 el grupo parlamentario de Izquierda Plural presentó una Proposición de ley en el Congreso de los Diputados para que el 18 de julio fuera declarado Día Oficial de Condena de la Dictadura Franquista, el PP utilizó su mayoría absoluta para impedir que la misma se admitiera a trámite (DSCD núm. 112, 21 mayo 2013). Por esta razón, Aguilar ase- guraba que «hoy en día, el PP no ha condenado todavía explícitamente el golpe de Estado de 1936 ni la dictadura que vino a continuación» (2007: 17). 21. Destaca, por ejemplo, el artículo 2.1, que «declara el carácter radicalmente injusto de todas las condenas, sancio- nes y cualesquiera formas de violencia personal producidas por razones políticas, ideológicas o de creencia religiosa, durante la Guerra Civil [y] […] la Dictadura». El artículo 3.1 declara la «ilegitimidad de los tribunales, jurados y cualesquiera otros órganos penales o adminis- trativos que, durante la Guerra Civil, se hubieran constituido para imponer, por motivos políticos, ideológicos o de creencia religiosa, condenas o sanciones de carácter personal, así como la de sus resoluciones»; en particular, «el Tribunal de Represión de la Masonería y el Comunismo, el Tribunal de Orden Público, […] los Tribunales de Responsabilidades Políticas y los Consejos de Guerra» (artículo 3.2), así como «las condenas y sanciones dictadas por motivos políticos, ideológicos o de creencia» por los tribunales de la dictadura (artículo 3.3). No obstante, «no se procede a la abolición de dichas instituciones en el sentido de que mantienen el estatuto de haber pertenecido al orden jurídico español. Dicho de otro modo, esta derogación no tiene un efecto ex tunc que se retrotraiga hasta el momento en que fue dictada la norma» (Sauca, 2008: 97). 22. La Ley de Memoria Histórica únicamente prohíbe que allí se realicen actos de naturaleza política o exaltadores de la Guerra Civil, sus protagonistas o el franquismo (artículo 16.2), pero respeta su condición de lugar de culto y Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 221 «caídos por Dios y por España» en iglesias y catedrales…); ni los monarcas ni ningún Presidente del Gobierno han pedido perdón «a las víctimas de la guerra o de la represión franquista en nombre del Estado» (Aguilar, 2007: 17); tampoco se ha disculpado la Iglesia católica, cómplice de los vencedores de la guerra; además, y en el plano de la reparación material, «nunca se aprobaron medidas destinadas a facilitar el retorno de decenas de mi- les de exiliados ni normas que ofrecieran reparación a las víctimas de la tortura» (2007: 22). A juicio de Chinchón, «los pasos dados por España se han alejado notablemente de la inmediatez exigida en toda reparación, al tiempo que, en líneas generales [se produce una] falta de adecuación con un concepto de víctima acorde a lo que dispone el derecho internacional […]. La inmensa mayoría de las iniciativas aprobadas no han tenido un verdadero carácter reparador, pues no se han basado en el reconocimiento de la existencia de ninguna violación previa, sino que más bien han sido configuradas como una suerte de compensación o igualación de regímenes» (2007: 183). Por último, resulta interesante señalar que el Estado español se ha volcado y no ha escatimado medios para reparar el sufrimiento de otras víctimas –paradigmáticamente, las del terrorismo (de ETA), pero también es llamativo el esfuerzo dedicado a la búsqueda del cadáver de Marta del Castillo, por ejemplo–, lo que denota un trato absolutamente discriminatorio que acrecienta la injusticia cometida por el Estado.23 De hecho, debiera ocurrir más bien al revés: el Estado tendría que ser incluso más diligente en la reparación de las víctimas cuando fue el causante del daño que si se trata de crímenes cometidos por particulares. Y es que hay una «notable diferencia entre delitos de particulares, inclu- so organizados, expresión de violencia privada, y los crímenes de derecho internacional ejecutados por el Estado, de modo sistemático, masivo y serial, que provocan masacres humanas. Es la distancia que existe entre el poder privado, al margen de la intensidad de la ofensa, y el poder estatal genocida» (Sáez, 2014: 11). 3. ¿Cómo subsanar los graves déficits de la justicia transicional en España? Las principales carencias de la justicia de transición en España se refieren a los ámbitos del derecho a la verdad y a la justicia. En lo que sigue, serán esbozadas algunas propuestas que, de aplicarse en este país, colmarían ciertas lagunas de su política transicional y lo acercarían a los estándares internacionales en materia de protección de las víctimas de vulneraciones graves de los Derechos Humanos. 3.1. Verdad El Comité de Derechos Humanos de Naciones Unidas aseguró recientemente que «aunque toma nota con satisfacción de las garantías dadas por el Estado parte [España] cementerio –prueba del enorme poder de la Iglesia en España–. 23. Vid. R. Sáez (2009: 100), Vicente (2009: 150), Arrojo (2014), Gordon (2014). artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente222 en el sentido de que la Ley de la Memoria Histórica prevé que se esclarezca la suerte que corrieron los desaparecidos, observa con preocupación las informaciones sobre los obstá- culos con que han tropezado las familias en sus gestiones judiciales y administrativas para obtener la exhumación de los restos y la identificación de las personas desaparecidas. El Estado parte debe […] prever la creación de una comisión de expertos independientes en- cargada de restablecer la verdad histórica sobre las violaciones de los Derechos Humanos cometidas durante la Guerra Civil y la dictadura y permitir que las familias identifiquen y exhumen los cuerpos de las víctimas y, en su caso, indemnizar» (2008: §9). Por tanto, convendría proceder a la des-privatización de la labor de búsqueda de los desaparecidos mediante la asunción de esa competencia por parte de las administraciones públicas. Asimismo sería necesaria la creación de una comisión de la verdad integrada por expertos independientes para proceder a esclarecer los hechos ocurridos durante la guerra y la dictadura posterior. Igualmente, el Estado español tendría que prestar una mayor atención a la recuperación de la memoria histórica, incluyendo la eliminación o reasigna- ción de significado a todos los símbolos de la dictadura y la reclamación del pasado repu- blicano como un referente válido para mejorar la democracia y avanzar por su senda:24 se pretende así recobrar «una memoria democrática que, frente al relato político hegemónico que ha actuado como pilar legitimador del sistema constitucional, reivindique el relato de las víctimas del franquismo y ponga en valor lo que supuso para España la Segunda República y la Constitución de 1931» (Escudero, 2013: 321). De este modo, la verdad histórica se «oficializaría», poniendo fin a la «excesiva fragmentación que caracteriza la construcción de la memoria en España» (De Greiff, 2014: §104g). 3.2. Justicia Por lo que se refiere a la efectividad del derecho a la justicia, tres grandes obstáculos impiden el procesamiento de los criminales de la dictadura: el principio de legalidad, la vigencia de la Ley de Amnistía y la prescripción de los delitos. El principio de legalidad exige que exista una ley previa (lex praevia) que tipifique los hechos. Esa ley podría hallarse en el ordenamiento internacional o nacional. Por lo que se refiere al primero, se ha sugerido que el Derecho creado por el Estatuto y el fallo del Tribunal Militar Internacional de Nüremberg adquirió alcance universal tras la Resolu- ción 95 (I),25 convirtiéndose en parte del Derecho consuetudinario internacional (Esti- rado, 2009: 118). En el artículo 6c de dicho Estatuto se dice que son crímenes contra la humanidad:26 «el asesinato, la exterminación, esclavización, deportación y otros actos 24. Y es que, paradójicamente, España es el único país de Europa donde se puede «ser demócrata sin ser antifascista» (Monedero, 2013: 246). En los Estados de nuestro entorno han desaparecido del imaginario oficial «desde el mismo momento de la Liberación, los nombres y las loas a los tiranos y a su extensísima cohorte de secuaces» (Queralt, 2011: 930). 25. Confirmación de los principios de Derecho internacional reconocidos por el Estatuto del Tribunal Militar Internacional de Nüremberg y por el fallo de este Tribunal. Resolución 95 (1), 11 diciembre 1946, de la Asamblea General de Naciones Unidas. 26. Tanto el Tribunal Militar Internacional de Nüremberg como el de Tokio tenían competencia para conocer no Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 223 inhumanos cometidos contra la población civil antes de la guerra o durante la misma [en España, diríamos: durante la Guerra Civil o después de la misma]; la persecución por motivos políticos, raciales o religiosos en ejecución de aquellos crímenes que sean com- petencia del Tribunal o en relación con los mismos, constituyan o no una vulneración de la legislación interna del país donde se perpetraron». Por tanto, se podría aplicar la calificación de delitos contra la humanidad a muchos de los cometidos por el régimen franquista de acuerdo con lo dispuesto en el artículo 6c del Estatuto citado,27 especialmente si tenemos en cuenta que el propio Tribunal Euro- peo de Derechos Humanos (TEDH) señaló que, «si bien el Tribunal de Nuremberg se estableció para enjuiciar a los principales criminales de guerra de los Países Europeos del Eje por los crímenes que habían cometido antes y durante la Segunda Guerra Mundial, […] la validez universal de los principios relativos a los crímenes se vio posteriormente confirmada por, inter alia, la Resolución 95 de la Asamblea General de las Naciones Uni- das (…) y más tarde por la Comisión de Derecho Internacional. Como consecuencia, la responsabilidad por crímenes contra la humanidad no puede verse limitada únicamente a los nacionales de ciertos países, ni exclusivamente a actos cometidos dentro del período específico de la Segunda Guerra Mundial».28 Sin embargo, algunos autores opinan que aunque el Derecho consuetudinario del mo- mento en que se dictó la Ley de Amnistía obligase a España a perseguir los delitos, ello no significa que la norma internacional fuera de directa aplicación por el Estado. «Máxime en lo que concierne a una obligación de castigar penalmente, algo que el Estado sólo puede hacer de acuerdo con su sistema jurídico interno y, en un país regido por el principio de legalidad, a partir de una Ley que defina la conducta punible y la pena aplicable a los sujetos responsables» (Tamarit, 2009: 137).29 sólo crímenes contra la humanidad, sino también crímenes contra la paz y crímenes de guerra. «Salvo los crímenes de guerra, los otros dos eran nuevas categorías de delitos que se aplicaron en contravención de los principios de legalidad y de no retroactividad pero que, desde entonces, sentaron un precedente de la lucha de la Humanidad contra la barbarie» (Fernández, 2010: 77). 27. Valencia considera que cuando se elaboró la Ley de Amnistía los crímenes del franquismo y la dictadura consti- tuían delitos graves contra el Derecho de gentes «a la luz de la codificación del derecho internacional de los conflic- tos armados, en su doble vertiente de derecho humanitario o derecho de Ginebra y derecho de la guerra o derecho de La Haya, que comienzan con la primera Convención de Ginebra de 1864 y con las trece Convenciones de la Haya de 1899 y de 1907, respectivamente. […]. Otros precedentes normativos de trascendencia [son] la declara- ción diplomática de los aliados de la Primera Guerra Mundial, en mayo de 1915, para condenar el genocidio de los armenios por los turcos otomanos como un crimen «contra las leyes de la humanidad»; el Acuerdo de Londres, en agosto de 1945, por el cual los aliados de la Segunda Guerra Mundial crearon el Tribunal Militar Internacional de Nuremberg para juzgar a los jerarcas de la dictadura nazi por crímenes contra la paz, contra las leyes y costumbres de la guerra y contra las leyes de la humanidad; la Convención contra el Genocidio, de diciembre de 1948, que cons- tituye el instrumento fundacional del Derecho penal internacional; y la decisión de la Comisión de Derecho Inter- nacional, en julio de 1950, que codifica como nuevas normas consuetudinarias los Principios de Nuremberg que la Asamblea General de las Naciones Unidas ya había sancionado como tales en diciembre de 1946» (2012: 196-197). 28. Decisión del TEDH, caso Kolk y Kislyiy c. Estonia, 17 enero 2006. 29. En opinión de Ambos, «la persecución jurídico internacional de los crímenes fracasa por lo general –también en el caso español […]– por su falta de redacción típica en la fecha de los hechos y la persecución nacional lo hace por su prescripción» (2009b: 14). Más aún, con relación a la persecución internacional asegura que «es controvertido en qué medida tal deber [de perseguir los crímenes internacionales] puede derivarse del derecho consuetudinario internacional (artículo 38 (b) Estatuto de la CIJ) o de los principios generales del derecho (artículo 38 (c) Estatuto artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente224 No obstante, otro sector de la doctrina defiende que para los crímenes de lesa huma- nidad no rige este principio del Derecho penal tradicional con el fin de evitar la impu- nidad. Por ejemplo, el juez Zupančič aseguró que el artículo 7.2 del Convenio Europeo de Derechos Humanos (CEDH) representa una «excepción al principio nullum crimen, nulla poena, sine lege praevia». Y es que si el principio de legalidad se interpreta normal- mente en un sentido restrictivo del poder estatal de castigar, «en este caso […] tiene el efecto inverso. Impide que los demandantes se beneficien de su propia interpretación del derecho». Y continúa: «es fácil imaginar un caso similar en el que los demandantes fueran altos magistrados de la RDA que hubiesen participado en la creación de la «práctica» ju- dicial […] de la impunidad. ¿Diríamos entonces que este «elemento de la interpretación judicial» (ver el apartado 82 de la sentencia) equivale a la «ley que define el delito»?».30 Refiriéndose a las Leyes de Punto Final y Obediencia Debida argentinas (leyes de am- nistía similares a la española), el Instituto Max-Planck decía: «las citadas leyes especiales son ilegales desde el punto de vista del Derecho internacional público […]. [No] se opone a esta conclusión la prohibición de retroactividad (nullum crimen sine lege praevia), sin per- juicio de que Argentina firmó los convenios respectivos de Derechos Humanos después de la perpetración de los delitos. A nivel del Derecho Internacional Público Penal este principio ya no requiere de principios legales escritos para fundamentar una penalidad, sino que –desde la jurisprudencia de Nüremberg– son suficientes los principios no escri- tos pero reconocidos por el Derecho Consuetudinario. Basta la penalidad en el momento de perpetración according to the general principles of law recognized by the community of nations (comp. Art. 15 inc. 2 PIDCP). Esta disposición quiere evitar la impunidad de gra- ves violaciones a los Derechos Humanos y/o a delitos internacionales» (1998: 284-285). Incluso el Juzgado de Instrucción nº 2 de la AN31 interpretó de este modo el principio de legalidad: «el principio de legalidad aplicable a los delitos internacionales tales como los crímenes contra la humanidad no es el interno, sino el internacional, contenido en el artículo 15 del PIDCP de 1966 […]. El CP vigente puede aplicarse retrospectivamente a conductas anteriores que ya eran criminales en el momento de cometerse con arreglo a la legalidad penal internacional; es decir, eran criminales porque estaban prohibidas en el Derecho consuetudinario internacional en esa época, aunque aún no hubieran sido tipi- ficadas en el CP español. La legalidad penal internacional debe establecerse atendiendo tanto al Derecho convencional escrito, interno e internacional, como al Derecho consue- de la CIJ). En cuanto al primero, es difícil aducir una práctica de los Estados a este efecto y el recurso a los últimos es pasible de crítica, dado que aparentemente quiere superar la falta de una práctica de los Estados o incluso una práctica contraria simplemente ignorándola» (2009b: 37). Con respecto a la existencia de una norma de ius cogens consuetudinaria anterior a 1977 que obligase a España a perseguir los crímenes de la dictadura, A. Gil todavía es más restrictiva, puesto que entiende que no se daría nin- guno de los elementos de la costumbre internacional: ni opinio iuris ni práctica consistente de los Estados (2009: 109). Igualmente, Tamarit considera que «la existencia de una costumbre internacional que impusiera a los Estados el deber de perseguir penalmente las violaciones de los Derechos Humanos era dudosa en el momento en que fue dictada la Ley de amnistía» (2009: 137). 30. Voto concurrente a la Sentencia del TEDH, caso Streletz, Kessler y Krenz c. Alemania, 22 marzo 2001. 31. Auto que declara la admisión a trámite de la querella formulada en el caso de las víctimas españolas de los cam- pos nacionalsocialistas (Diligencias Previas 211/08 L, 17 julio 2008). Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 225 tudinario o los principios generales de las naciones civilizadas». En este punto, ni siquiera la exégesis dada al principio de legalidad por parte de los tribunales españoles es unánime, puesto que el TS sigue otra orientación.32 En cualquier caso, si no es posible la aplicación directa de las normas consuetudinarias de Derecho internacional, una segunda opción consistiría en acudir al Derecho interna- cional convencional (García, 2013: 143-144), que sí cumpliría los requisitos de lex scripta y stricta. En este sentido, es necesario referirse al PIDCP, de obligado cumplimiento para nuestro país desde el 27 de abril de 1977. Más aún, España no expresó ninguna reserva a la hora de firmar este tratado. Su artículo 2.3 dice: «cada uno de los Estados Partes en el presente Pacto se compromete a garantizar que toda persona cuyos derechos o liber- tades reconocidos en el presente Pacto hayan sido violados podrá interponer un recurso efectivo, aun cuando tal violación hubiera sido cometida por personas que actuaban en ejercicio de sus funciones oficiales».33 Se ha objetado que el PIDCP no resulta aplicable a actos cometidos con anterioridad a su entrada en vigor (artículo 15.1), como son todos los ocurridos en España. Ahora bien, existe una excepción a la prohibición general de retroactividad: «nada de lo dispuesto en este artículo se opondrá al juicio ni a la condena de una persona por actos u omisiones que, en el momento de cometerse, fueran delictivos según los principios generales del derecho reconocidos por la comunidad internacional» (artículo 15.2). La pregunta clave es: los delitos cometidos durante la Guerra Civil y la dictadura, ¿se podían considerar incluidos dentro de esos «principios generales del derecho reconocidos por la comunidad internacional» en el momento en que se perpetraron? Hay buenas razones para pensar que sí. Y no ofrezco una rotunda respuesta afirmativa porque hablar de principios, particularmente en el ámbito internacional y, más concretamente, en esa época en que la protección internacional de los Derechos Humanos se hallaba en fase de gestación resulta tremendamente vago. Ahora bien –y con esto entro en el ámbito del Derecho interno, el tercero donde se puede buscar la existencia de una ley previa–, en el momento de comisión de los hechos tanto el homicidio, como la violación, las lesiones corporales o la detención ilegal se halla- ban tipificadas como delitos en el Código Penal (el de 1932 y el de 1944). Por tanto, qui- 32. La STS 101/2012, 27 febrero (caso de las fosas del franquismo), considera que el principio de legalidad exige la existencia de lex praevia (anterior a la comisión de los hechos), lex stricta (tipificada en una norma de rango le- gal), lex certa (de forma clara) y lex scripta (por escrito). Así, «en orden a la aplicación del Derecho Internacional Penal «es necesaria una precisa transposición operada según el derecho interno, al menos en aquellos sistemas que, como el español, no contemplan la eficacia directa de las normas internacionales […]. El Derecho Internacional consuetudinario no es apto según nuestras perspectivas jurídicas para crear tipos penales completos que resulten directamente aplicables por los tribunales españoles» […]. La vigencia en nuestro ordenamiento del principio de le- galidad exige que el derecho internacional sea incorporado a nuestro ordenamiento interno en la forma dispuesta en la Constitución y con los efectos dispuestos en la misma. No es posible –por más que sea sostenida por algún sector doctrinal– que las exigencias del principio de tipicidad se rellenen con la previsión contenida en el Derecho penal internacional consuetudinario, si el derecho interno no contempla esa tipicidad. Si lo hiciera con posterioridad, esa tipificación puede ser aplicada, pero siempre a partir de su publicación» (FJ 3º). 33. Entre esos derechos y libertades se encuentran la vida (artículo 6), la prohibición de la tortura (artículo 7), del trabajo forzoso (artículo 8) y de la detención ilegal (artículo 9), así como la libertad de pensamiento, conciencia y religión (artículo 18), todos ellos objeto de vulneración masiva durante la dictadura franquista. artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente226 zá en España se podría acudir al Derecho interno que estaba vigente cuando ocurrieron los crímenes para enjuiciarlos (Paredes, 2010). Como en el resto de Estados de nuestro entorno también se tipificaban tales conductas como delictivas, se puede entender que se daba un consenso entre las «naciones civilizadas» (artículo 7.2 CEDH) acerca de la nece- sidad de sancionarlas, por lo que se cumpliría el requisito establecido en el PIDCP para su aplicación retroactiva: que los actos «fueran delictivos según los principios generales del derecho reconocidos por la comunidad internacional». El segundo impedimento frente a la pretensión de juzgar los crímenes del franquismo es la vigencia de la Ley de Amnistía. Aquí se vuelve necesario precisar algunos extremos. En primer lugar, y como ya fue mencionado, la Ley de Amnistía se aprobó unos meses des- pués de que España ratificase el PIDCP, motivo por el cual algunos autores han sugerido que la primera vulneró el Derecho internacional aplicable en nuestro país. Las relaciones entre el Derecho internacional y el Derecho interno, para el caso de un tratado anterior a una ley nacional –por ejemplo, el PIDCP y la Ley de Amnistía española–, se explican acudiendo al principio de aplicabilidad preferente. De acuerdo con el artículo 27 del Convenio de Viena sobre Derecho de los Tratados de 1969 (CVDT), «una parte no podrá invocar las disposiciones de su Derecho interno como justificación del incumplimiento de un tratado». Y es que, en el fondo, obrar en sentido contrario significaría quebrantar el propio ordenamiento nacional, puesto que la violación del Derecho internacional es, en sí misma, una transgresión del primero (Requejo, 1992: 62-63). Por tanto, la Ley de Amnistía se aprobó en contravención de la normativa internacional ratificada por España en aquel momento; esgrimir su vigencia como argumento para eximir al Estado de su de- ber de perseguir los crímenes de Derecho internacional cometidos durante el franquismo (vid., Gil, 2009: 152) supone conculcar el artículo 27 del CVDT citado.34 Un segundo punto a destacar es que desde el momento en que se aprueba la Cons- titución los jueces deben tener presente esta norma siempre que apliquen Derecho –sea éste preconstitucional o posterior a la Constitución–, así como los valores superiores que propugna (entre ellos, la justicia).35 En este sentido, nuestra Constitución es incompatible 34. Más aún, como indica Paredes, «sin necesidad de acudir al efecto derogatorio del Derecho internacional de los Derechos Humanos sobre la legislación ordinaria, simplemente mediante la realización de una interpretación sistemática y valorativamente coherente de la Ley, habría que concluir que ciertos actos no fueron amnistiados: en concreto, aquellos que han sido declarados no susceptibles de amnistía ni de prescripción por la interpretación consolidada del Derecho internacional de los Derechos Humanos. Por lo demás, […] aun si tal interpretación no resultase posible (que lo es), la conclusión que debería extraerse no es que la Ley 46/1977 –interpretada como causa de extinción de la responsabilidad penal– se impone sobre el Derecho internacional de los Derechos Humanos, sino justamente la contraria: que se trata de una ley inválida ya ab initio (o, cuando menos, posteriormente derogada), por contradecir normas de rango superior» (2013: 39). 35. Como señaló el juez Levits, en su voto concurrente a la Sentencia del TEDH, caso Streletz, Kessler y Krenz c. Alemania, ante la cuestión de si «después de un cambio de sistema político (…) es legítimo aplicar el «viejo» derecho establecido por el régimen no democrático anterior de acuerdo con los métodos de interpretación y aplicación del derecho inherentes al nuevo orden político democrático», [la única respuesta posible es sí]. «Los Estados democrá- ticos sólo pueden permitir a sus instituciones que apliquen el derecho –incluido el derecho anterior dictado por un gobierno pre-democrático– de una manera inherente al orden político democrático […]. El recurso a cualquier otro método de aplicación del derecho (que implica alcanzar resultados diferentes a partir de los mismos textos jurídicos) atentaría contra el núcleo mismo del orden público de un Estado democrático. Los mismos principios resultan igualmente aplicables respecto a la interpretación y aplicación de las normas del Derecho internacional, Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 227 con una ley que ampara la impunidad de asesinos, torturadores, secuestradores y viola- dores a gran escala de los Derechos Humanos, por lo que tanto el artículo 2 e) y f ) de la Ley de Amnistía como las sentencias dictadas por los tribunales franquistas deberían ser suprimidas, expulsadas del ordenamiento jurídico, por injustas.36 Al igual que se hizo en otros países.37 Otra posibilidad sería declarar la «inconstitucionalidad sobrevenida […] por vulne- ración del artículo 15 (derecho a la vida e integridad física y prohibición de la tortura y tratos inhumanos y degradantes)», en relación con el artículo 10.2 («interpretación de los derechos conforme a las declaraciones internacionales») (Tamarit, 2010: 68). Ello con- duciría a una segunda inconstitucionalidad sobrevenida, puesto que la Ley de Amnistía es contraria al Derecho internacional de los Derechos Humanos y los tratados en esta materia no sólo sientan la pauta hermenéutica de los derechos fundamentales, sino que son parte del ordenamiento jurídico español si han sido ratificados por España –artículo 96.1 de la Constitución– (Estirado, 2009: 123).38 En tercer lugar, el TEDH, cuya interpretación del CEDH vincula a España,39 ha afirmado que los delitos contemplados en el artículo 7.2 del CEDH –delitos con arre- glo a los principios generales del Derecho reconocido por las naciones civilizadas– son incompatibles con la amnistía.40 En definitiva, «los crímenes del franquismo no podían ser amnistiados entonces y no pueden ser amnistiados ahora porque eran delitos graves contra el Derecho de gentes y lo siguen siendo en la actualidad» (Valencia, 2012: 196).41 como el PIDCP». 36. La necesidad de anular «las resoluciones de los tribunales de excepción que instituyó el estado fascista» deriva de la siguiente asunción: «el aparato institucional franquista fue un estado ilegal, un espacio de no derecho, porque se sustentaba sobre la violación sistemática de los derechos y libertades y conculcaba la legalidad internacional, el orden jurídico universal [basado] en los Derechos Humanos indisponibles» (Sáez, 2009: 85-86). 37. En palabras de Queralt, «ampararse en la irretroactividad de la Constitución es una añagaza. Si fuera verdad esa mentira, en los matrimonios celebrados antes de la Carta Magna seguiría mandando el marido. Afirmar que anular una sentencia del TOP o de un consejo de guerra es atentar contra la seguridad jurídica resulta grotesco […]; también supone afirmar la supraconstitucionalidad de la seguridad jurídica por encima del valor superior de la Constitución que es la Justicia» (2007). 38. A juicio de Estirado, «en la medida en que la Ley de Amnistía, en cuanto impide la persecución penal de los citados crímenes de lesa humanidad, es contraria al Derecho Penal Internacional y a principios esenciales del mis- mo, con fuerza de ius cogens, y que tal Derecho Internacional ha sido recogido por nuestra Constitución de 1978 a través de los artículos 10 y 96, debe entenderse derogada esta Ley por la Constitución en este concreto ámbito, sin necesidad de plantearse la correspondiente cuestión de inconstitucionalidad» (2009: 123). 39. Vid. artículo 10.2 de la Constitución y STC 245/1991, 16 diciembre (FJ 3º). 40. Decisión del TEDH sobre la admisibilidad de la demanda nº 13113/03 presentada por Ely Ould Dah c. Fran- cia, 17 marzo 2009. Naciones Unidas se muestra igualmente contraria a las amnistías. Vid. Resolución 3074 (XVIII), 3 diciembre 1973, de la Asamblea General de Naciones Unidas que establece Principios de cooperación internacional en la identifi- cación, detención, extradición y castigo de los culpables de crímenes de guerra o de crímenes de lesa humanidad (apartado 8). También la Declaración y Programa de Acción de Viena aprobados por la Conferencia Mundial de Derechos Humanos el 25 de junio de 1993. El Comité de Derechos Humanos de Naciones Unidas recomienda asimismo la derogación de la Ley de Amnistía de 1977 (2008). 41. Más aún, en España no se cumplían las circunstancias en las que, a juicio de algunos autores, cabe justificar una amnistía: el peligro de que, al tratar de satisfacer el derecho a la justicia de las víctimas, se pongan en peligro la paz y el orden democrático. Puede ser discutible hasta qué punto las elites del régimen franquista hubieran aceptado artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente228 Por lo que atañe a la prescripción de los crímenes, hay quien ha apuntado que aun cuando se interpretase el principio de legalidad como aquí se postula y se derogase la Ley de Amnistía, tampoco sería posible juzgar a los criminales de la dictadura que todavía se encuentren con vida porque sus delitos habrían prescrito. No obstante, el TEDH señala que la imprescriptibilidad de los crímenes contra la humanidad, independientemente de la fecha de su comisión, ya fue consagrada por el Estatuto del Tribunal de Nüremberg.42 Igualmente, el Comité de Derechos Humanos de Naciones Unidas «recuerda que los delitos de lesa humanidad son imprescriptibles. [Por esa razón], el Estado parte debe […] tomar las medidas legislativas necesarias para garantizar el reconocimiento de la imprescriptibilidad de los crímenes de lesa humanidad por los tribunales nacionales» (2008). El Código Penal español también recoge el carácter imprescriptible de los delitos de lesa humanidad (artículo 131.4). Es más, se viene en- tendiendo que la imprescriptibilidad de los crímenes contra la humanidad era una regla consuetudinaria con carácter previo a su codificación internacional o interna.43 De cualquier modo, los plazos de prescripción no han de contar durante el tiempo en que no existió el derecho a un recurso efectivo. Para el caso paradigmático de las des- apariciones forzadas, el Derecho internacional considera que se trata de un hecho ilícito de carácter continuado. Así, de acuerdo con el artículo 17.1 de la Declaración sobre la protección de todas las personas contra las desapariciones forzadas,44 «todo acto de des- aparición forzada será considerado delito permanente mientras sus autores continúen ocultando la suerte y el paradero de la persona desaparecida y mientras no se hayan es- clarecido los hechos», aunque la persona desaparecida haya muerto.45 Igualmente, el artí- una Transición que no les garantizase la inmunidad, pero de lo que no hay duda es de que en España la amnistía no reunió las condiciones de legitimidad exigidas: ni hubo arrepentimiento (admisión de la culpa, petición pública de perdón, demostración de remordimiento, propósito de enmienda, reconocimiento de las víctimas, entrega de infor- mación, participación en programas de reeducación) ni esclarecimiento de la verdad (por ejemplo, con la creación de Comisiones de la Verdad) ni reparación del daño. Por tanto, la española no sería una amnistía condicionada, sino una amnistía general o incondicionada –blanket amnesty– (Dorado, 2013: 88-98). 42. Decisiones del TEDH, casos Papon c. Francia, 11 octubre 2005, y Touvier c. Francia, 13 enero 1997. 43. Tamarit llama la atención sobre el instituto de la prescripción: «la opinión dominante en la doctrina y en la jurisprudencia entiende que es una institución de derecho material no susceptible de aplicación retroactiva. La pres- cripción de un delito supone un límite al ejercicio de la potestad punitiva estatal y una vez producida la misma con arreglo a la ley vigente existe una expectativa legítima de no ser perseguido penalmente que no puede ser defraudada mediante una ley posterior que establezca el carácter imprescriptible del delito, como ha sucedido respecto a los delitos de lesa humanidad» (2009: 137). Por su parte, Muñoz Conde estima que «razones de seguridad jurídica avalan […] la prohibición de retroactividad de nuevos plazos de prescripción que alarguen los que regían en el momento en que se cometieron los hechos, para poder juzgar esos hechos conforme a los nuevos plazos» (2011: 857). Ahora bien, este penalista contempla la posi- bilidad de entender interrumpido el plazo de prescripción, «bien porque se hayan cometido nuevos delitos (como puede ser el caso de la Dictadura franquista que duró casi cuarenta años), bien porque se hayan querido oponer obstáculos a su persecución otorgándose los propios criminales antes del transcurso de los plazos de prescripción Leyes de Punto final o de Autoamnistía, o se hayan aprobado éstas ya en la nueva etapa democrática por debilidad de los nuevos regímenes democráticos» (2011: 859). 44. Aprobada por la Resolución 47/133, 18 diciembre 1992, de la Asamblea General de Naciones Unidas. 45. Este es el argumento que sostiene el Ministerio Fiscal en España: la desaparición forzada finalizó hace mucho tiempo porque se sabe que las víctimas fueron ejecutadas; de este modo, se trataría de un asesinato y estaría pres- crito. Sin embargo, como subraya Vicente, «esta interpretación hace total abstracción del artículo 17 de la Declara- Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 229 culo 5 de la Convención internacional para la protección de todas las personas contra las desapariciones forzadas dispone: «la práctica generalizada o sistemática de la desaparición forzada constituye un crimen de lesa humanidad tal como está definido en el Derecho in- ternacional aplicable». En su artículo 8 añade: «sin perjuicio de lo dispuesto en el artículo 5, cada Estado parte que aplique un régimen de prescripción a la desaparición forzada tomará las medidas necesarias para que el plazo de prescripción de la acción penal […] se cuente a partir del momento en que cesa la desaparición forzada, habida cuenta del carácter continuo de este delito». Por tanto, coincido con R. Sáez en que tales crímenes «no puede considerarse que han prescrito, cuando menos de manera concluyente como se pretende y sin haber procedido a la investigación. Porque, según nuestro código penal, en el caso de delitos permanentes los términos de la prescripción no se computarán hasta que se elimine la situación antijurídica (artículo 132.1). [De ahí que] pudiera sostenerse con razón que la legislación aplicable al delito permanente es la vigente en el momento del descubrimiento del desaparecido» (2009: 101-102). En este sentido, nuestro TS yerra al negar cualquier posibilidad de investigar judi- cialmente y, en su caso, procesar a los criminales de la dictadura que aún se hallen vivos. Una interpretación flexible tanto del principio de legalidad como del instituto de la pres- cripción y de la constitucionalidad de la Ley de Amnistía permitiría cierto ámbito de maniobra a los jueces. Mi propuesta no socava el principio de intervención mínima del Derecho penal ni cae en la ingenua tentación de pretender solucionar todos los problemas que aquejan a una sociedad acudiendo a la vía penal; tampoco desnaturaliza el Estado de derecho con- virtiéndolo en un Estado de desecho por atentar contra principios garantistas básicos. Las instituciones que sugiero interpretar de forma flexible (principio de legalidad, irretroac- tividad de la ley penal desfavorable, prescripción de los delitos), en el supuesto único y exclusivo de juzgar crímenes contra la humanidad cometidos por dictadura, se crearon para proteger al ciudadano frente al poder estatal que, si no se limita, tiende siempre al totalitarismo. Pero no buscaban beneficiar a quienes, prevaliéndose de la legitimidad y fuerza que otorga el Estado, vulnerasen los derechos fundamentales de los ciudadanos de forma masiva, aprovechándose luego de las garantías que ellos ignoraron para librarse de cualquier castigo. En este sentido, creo que es importante distinguir entre el crimen de Estado y el delito cometido por particulares –incluso aunque se trate de bandas organi- zadas–: por muy grave que sea el último, no se puede comparar con el carácter masivo, serial y sistemático del primero. Además de la presunción de moralidad que acompaña a la ley –y, en general, a toda actuación estatal–, un Estado que delinque se convierte en ción de 1992. El hecho de que las «detenciones ilegales sin dar razón del paradero de la víctima» concluyeran con la ejecución de la persona detenida, por mucho que fuera un hecho notorio y público, no cambia en absoluto la calificación del delito como un acto de desaparición forzada, que constituye un delito permanente, lo que significa que la violación se prolonga en el tiempo y no concluye hasta que sea determinado el paradero de las personas desaparecidas o debidamente localizados o identificados los restos. […]. Y, en todo caso, no se trataría de un delito común […], sino uno (asesinato) constitutivo de un crimen contra la humanidad. Es adicionalmente abusivo afir- mar prescripción o limitaciones de orden temporal cuando las víctimas han sido privadas de recursos efectivos por décadas, condición que en el caso de España ha sido el auténtico hecho público y notorio» (2009: 160). artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente230 juez y parte: quienes atentaron gravemente contra los Derechos Humanos se hallan luego en la posición de dictar normas que les exoneren de responsabilidad (amnistías). De este modo, ni los crímenes fueron perseguidos durante el régimen totalitario ni tampoco lo serán una vez instaurada la democracia. Esta situación no acaece en los casos de violencia privada, donde, mientras no prescriba el delito, el autor se halla siempre en la posición de ser capturado y procesado. Más aún, para los crímenes contra la humanidad no resultan aplicables varias de las justificaciones tradicionales del instituto de la prescripción46. En primer lugar, no desaparece la necesidad de la pena, ni desde un punto de vista preventivo general (porque se oscurezca o apague el recuerdo del delito y el sentimiento de alarma que en su día pudo producir o bien porque se entienda que el tiempo transcurrido ocul- tándose de la Justicia y con la amenaza pendiente de la pena sea ya suficiente castigo) ni, incluso, preventivo especial (porque el delincuente no haya reincidido, demostrando así una verdadera reinserción social). Por lo que hace al fundamento procesal (el aumento de las dificultades de prueba por el paso del tiempo, que se traduce en una afectación negativa del derecho de defensa y de la presunción de inocencia), en los delitos privados, al ser la dilación culpa del aparato represivo estatal, es lógico que redunde en provecho del reo; pero no ocurre eso en este supuesto, donde los que detentaban el poder para per- seguir los delitos no lo ejercieron porque ello significaba actuar contra sí mismos: parece lógico que los responsables de la demora no puedan prevalerse de beneficios adicionales (prescripción) a los que reporta el no haber sido juzgados durante la dictadura. Quisiera concluir con la siguiente reflexión: «ninguna sociedad se rompe porque se aplique la justicia […]. Una sociedad democrática mucho menos».47 Pues bien, la so- ciedad española no escapa a esa consideración. Y, en materia transicional, aquí no se ha aplicado la justicia. 4. Referencias bibliográficas Aguilar, Paloma (2001) Justicia, política y memoria: los legados del franquismo en la Transición española, Working paper, nº 163. Aguilar, Paloma (2007) La justicia transicional en los casos español, argentino y chi- leno», Comunicación presentada a la Conferencia Internacional «Paz y Justicia – Ele- mentos Conformadores del Futuro» celebrada en Nüremberg (25-27 junio), pp. 1-34. Ambos, Kai (2009a) El marco jurídico de la justicia de transición, en Ambos, Kay; Malarino, Ezequiel y Elsner, Gisela (eds.) Justicia de transición. Informes de Amé- rica Latina, Alemania, Italia y España, Berlín, Fundación Konrad-Adanauer, pp. 23-129. 46. Sigo, en lo esencial, a Mir (2011: 773). 47. Baltasar Garzón, Escuchando al juez Garzón, España, 2011, 87 min., Dir. I. Coixet. Curriculum vitae Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 231 Ambos, Kai (2009b) Prólogo, en Gil, Alicia, La justicia de transición en España. De la amnistía a la memoria histórica, Barcelona, Atelier, pp. 11-20. Amnistía Internacional (2006) Víctimas de la Guerra Civil y el régimen franquista: el desastre de los archivos, la privatización de la verdad, Informe de 30 de marzo. Andrés Ibáñez, Perfecto (2012) Casos Garzón: necesario distinguir», Isonomía, núm. 37, pp. 169-200. Arrojo, Emilio (2014) El franquismo os sienta muy bien, Público, 16 septiembre. En: <http://blogs.publico.es/dominiopublico/11051/el-franquismo-os-sienta-muy- bien/>. [Consultado el 4 diciembre 2015] Capellà, Margalida (2009) Represión política y Derecho internacional: una perspec- tiva comparada (1936-2006), en Capellà, Margalida y Ginard, David (coords.) Represión política, justicia y reparación. La memoria histórica en perspectiva jurídica (1936-2008), Palma de Mallorca, Edicions Documenta Balear, pp. 161-254. Chinchón, Javier (2007) El viaje a ninguna parte: memoria, leyes, historia y olvido sobre la Guerra Civil y el pasado autoritario en España. Un examen desde el Dere- cho internacional, Revista IIDH, nº 45, pp. 119-233. Chinchón, Javier (2008) Transición española y justicia transicional: ¿qué papel juega el ordenamiento jurídico internacional en un proceso de transición? A propósito de la coherencia, buena fe y otros principios de Derecho internacional postergados en la transición política de España, Entelequia, nº 7, pp. 331-354. Dorado Porras, Javier (2013) Justicia transicional, persecución penal y amnistías, De- rechos y Libertades, nº 28, pp. 81-114. Elster, Jon (2006) Rendición de cuentas. La justicia transicional en perspectiva histórica, Buenos Aires, Katz. Escudero, Rafael (2013) Jaque a la Transición: análisis del proceso de recuperación de la memoria histórica, Anuario de Filosofía del Derecho, nº 29, pp. 319-340. Estirado, César (2009) Perseguibilidad penal de los crímenes del franquismo. Aplica- ción del Derecho penal internacional al caso español. Antecedentes judiciales en España y en el extranjero, en VV.AA. Memoria histórica: ¿se puede juzgar la historia?, Madrid, Fundación Antonio Carretero, pp. 113-128. Fernández Liesa, Carlos R. (2010) La aplicabilidad de la costumbre internacional en el Derecho penal español, en Tamarit, Josep (coord.) Justicia de transición, justicia penal internacional y justicia universal, Barcelona, Atelier, pp. 73-90. Garcés, Joan E. (2010) Los crímenes de lesa humanidad en España ante el Tribunal Supremo, en Tamarit, Josep (coord.) Justicia de transición, justicia penal internacio- nal y justicia universal, Barcelona, Atelier, pp. 175-190. García Sáez, José Antonio (2013) Memoria histórica y aplicación retroactiva de la sanción penal. Algunos fundamentos desde el pacifismo jurídico de Hans Kelsen, Eunomía. Revista en Cultura de la Legalidad, nº 4, pp. 139-153. Gil, Alicia (2009) La justicia de transición en España. De la amnistía a la memoria his- tórica, Barcelona, Atelier. http://blogs.publico.es/dominiopublico/11051/el-franquismo-os-sienta-muy-bien/ http://blogs.publico.es/dominiopublico/11051/el-franquismo-os-sienta-muy-bien/ artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente232 Gómez Isa, Felipe (2006) El derecho de las víctimas a la reparación por violaciones graves y sistemáticas de los Derechos Humanos, en Gómez Isa, Felipe (dir.) El de- recho a la memoria, Zarautz, Alberdania, pp. 23-76. Gómez Isa, Felipe (2012) Retos de la justicia transicional en contextos no transiciona- les: el caso español, en Ripol, Santiago y Villán, Carlos (eds.) Justicia de transición: el caso de España, Barcelona, Institut Català Internacional per la Pau, pp. 172-184. González Vega, Javier (2009) Memoria histórica vs. impunidad: las obligaciones im- puestas por el Derecho internacional, en VV.AA., Memoria histórica: ¿se puede juz- gar la historia? Madrid, Fundación Antonio Carretero, pp. 67-84. Gordon, Jordi (2014) La gran vergüenza de la democracia española, Público, 10 di- ciembre. http://blogs.publico.es/dominiopublico/11965/la-gran-verguenza-de-la- democracia-espanola/. [Consultado el 5 diciembre 2015]. Greiff, Pablo de (2014) Informe del Relator Especial sobre la promoción de la verdad, la justicia, la reparación y las garantías de no repetición, (UN Doc A/HCR/27/56/ Add.1). Instituto Max-Planck (1998) Dictamen producido por el Instituto Max-Planck para el Derecho penal extranjero e internacional en Friburgo de Brisgonia, Alemania, acerca del siguiente problema jurídico, en Plataforma Argentina Contra la Impu- nidad (eds.) Contra la impunidad. En defensa de los Derechos Humanos, Barcelona, Icaria, pp. 266-290. Joinet, Louis (1997) Informe final revisado acerca de la impunidad de los autores de violaciones de los Derechos Humanos (civiles y políticos) preparado por el Sr. L. Joinet de conformidad con la Resolución 1996/119 de la Subcomisión, (UN Doc E/CN.4/Sub.2/1997/20/Rev.1). Mir Puig, Santiago (2011) Derecho penal: parte general, Barcelona, Reppertor. Monedero, Juan Carlos (2013) La Transición contada a nuestros padres. Nocturno de la democracia española, Madrid, Los Libros de la Catarata. Muñoz Conde, Francisco José (2011) El Derecho penal en tiempos de cólera, en Nuñez, Paz, Miguel Ángel (ed.) Un Derecho penal comprometido. Libro homenaje al Prof. Dr. Gerardo Landrove Díaz, Valencia, Tirant lo Blanch, pp. 851-883. Naciones Unidas (2004) El Estado de derecho y la justicia de transición en las socie- dades que sufren o han sufrido conflictos, Informe del Secretario General (UN Doc S/2004/616). Naciones Unidas (2005) Resolución 2005/81 sobre impunidad de la Comisión de Derechos Humanos de Naciones Unidas (E/CN.4/RES/2005/81). Naciones Unidas (2008) Proyecto de Observaciones Finales del Comité de Derechos Humanos. España, (UN Doc. CCPR/C/ESP/CO/5). Ortí, Alfonso (1989) Transición postfranquista a la monarquía parlamentaria y rela- ciones de clase: del desencanto programado a la socialtecnocracia transnacional, Política y Sociedad, nº 2, pp. 7-19. Paredes, José Manuel (2010) Soluciones, haberlas, haylas: acerca de garantismos falsos y desconsideraciones verdaderas hacia el derecho internacional de los Derechos http://blogs.publico.es/dominiopublico/11965/la-gran-verguenza-de-la-democracia-espanola/ http://blogs.publico.es/dominiopublico/11965/la-gran-verguenza-de-la-democracia-espanola/ Revista de Paz y Conflictos issn 1988-7221 | Vol. 9 | Nº 1 | 2016 | pp. 209-234 233 Humanos, Blog: Justicia internacional y franquismo: el caso contra Garzón. <http:// casogarzon.blogspot.co.uk/2010/05/colaboraciones-jose-manuel-paredes.html> [Consulta de 4 diciembre 2015]. Paredes, José Manuel (2013) La impunidad como práctica interpretativa: sobre el desprecio de la jurisdicción penal por el Derecho internacional de los Derechos Humanos, Jueces para la Democracia, nº 76, pp. 32-40. Pérez Álvarez, Pablo (2015) La Ley de Memoria Histórica es papel mojado, CTXT – Contexto y Acción, núm. 13. En: <http://ctxt.es/es/20150416/politica/806/memoi- ria-memoria-hist%C3%B3rica-fosas-comunes-exhumaciones-ayudas-PP-Partido- Popular-recortes-Espa%C3%B1a-Desmontando-el-bienestar.htm> [Consultado el 8 diciembre 2015]. Pisarello, Gerardo (2011) Un largo Termidor. La ofensiva del constitucionalismo antide- mocrático, Madrid, Trotta. Queralt, Joan (2007) Desmemoria histórica, El País, 5 enero. En: <http://elpais.com/ diario/2007/01/05/espana/1167951617_850215.html> [Consultado el 4 diciem1- bre 2015]. Queralt, Joan (2011) Imposibilidades de la Ley de memoria histórica: el caso Com- panys, en Núñez Paz, Miguel Ángel (ed.) Un derecho penal comprometido. Libro ho- menaje al Prof. Dr. Gerardo Landrove Díaz, Valencia, Tirant lo Blanch, pp. 929-945. Requejo Pagés, Juan Luis (1992) Consideraciones en torno a la posición de las normas internacionales en el ordenamiento español, Revista Española de Derecho Constitu- cional, nº 34, pp. 41-66. Sáez, Ramón (2009) Justicia transicional y España. ¿Se puede juzgar la historia? en VV.AA. Memoria histórica: ¿se puede juzgar la historia?, Madrid, Fundación Antonio Carretero, pp. 85-112. Sáez, Ramón (2010) Los jueces y el aprendizaje de la impunidad, a propósito de los crímenes del franquismo, Mientras tanto, núm. 114, pp. 41-72. Sáez, Ramón (2014) Justicia universal en España: el olvido del crimen de Estado, Jueces para la Democracia, nº 80, pp. 5-11. Sánchez Cuenca, Ignacio (2007) La violencia terrorista en la transición española a la democracia, Historia del presente, nº 14, pp. 9-24. Sánchez Soler, Mariano (2010) La transición sangrienta. Una historia violenta del pro- ceso democrático en España (1975-1983), Barcelona, Península. Sauca, José María (2008) El derecho ciudadano a la memoria histórica: concepto y contenido, en Martín Pallín, José Antonio y Escudero, Rafael (eds.) Derecho y me- moria histórica, Madrid, Trotta, pp. 73-104. Share, Donald y Mainwaring, Scott (1986) Transiciones vía transacción: la democra- tización en Brasil y en España, Revista de Estudios Políticos, nº 49, pp. 87-135. Sole Tura, Jordi (1985) Nacionalidades y nacionalismos en España. Autonomías, federa- lismo y autodeterminación, Madrid, Alianza Editorial. http://casogarzon.blogspot.co.uk/2010/05/colaboraciones-jose-manuel-paredes.html http://casogarzon.blogspot.co.uk/2010/05/colaboraciones-jose-manuel-paredes.html http://ctxt.es/es/20150416/politica/806/memoria-memoria-hist%C3%B3rica-fosas-comunes-exhumaciones-ayudas-PP-Partido-Popular-recortes-Espa%C3%B1a-Desmontando-el-bienestar.htm http://ctxt.es/es/20150416/politica/806/memoria-memoria-hist%C3%B3rica-fosas-comunes-exhumaciones-ayudas-PP-Partido-Popular-recortes-Espa%C3%B1a-Desmontando-el-bienestar.htm http://ctxt.es/es/20150416/politica/806/memoria-memoria-hist%C3%B3rica-fosas-comunes-exhumaciones-ayudas-PP-Partido-Popular-recortes-Espa%C3%B1a-Desmontando-el-bienestar.htm http://elpais.com/diario/2007/01/05/espana/1167951617_850215.html http://elpais.com/diario/2007/01/05/espana/1167951617_850215.html artículos originales Payero López, Lucia. Justicia de transición en España: claves para aprobar una asignatura pendiente234 Tamarit, Josep (2009) Justicia transicional y Derecho penal en España, en VV.AA. Memoria histórica: ¿se puede juzgar la historia?, Madrid, Fundación Antonio Carre- tero, pp. 129-141. Tamarit, Josep (2010) Justicia penal, justicia reparadora y comisiones de la verdad, en Tamarit, Joset (coord.) Justicia de transición, justicia penal internacional y justicia universal, Barcelona, Atelier, pp. 45-72. Valencia, Hernando (2012) La ley española de amnistía de 1977 en una perspectiva de justicia transicional, en Ripol, Santiago y Villán, Carlos (dirs.) Justicia de transición: el caso de España, Barcelona, Institut Català Internacional per la Pau, pp. 185-198. Vicente, Lydia (2009) La obligación de investigar los crímenes del pasado y garantizar los derechos de las víctimas de desaparición forzada durante la Guerra Civil y el franquismo, en VV.AA. Memoria histórica: ¿se puede juzgar la historia?, Madrid, Fundación Antonio Carretero, pp. 143-169. Villa Gómez, Juan David (2013) Consecuencias psicosociales de la participación en escenarios de justicia transicional en un contexto de conflicto, impunidad y no- transición, Cátedra Abierta, nº 13 (2), pp. 307-338. Viver i Pi-Sunyer, Carles (1998) Veinte años de Constitución y de incipiente consti- tucionalismo, Revista de Occidente, nº 211, pp. 23-53. proceso editor i al • editor i al proccess info Recibido: 09/12/2015 Aceptado: 31/05/2016 cómo citar este artículo • how to cite this paper Payero López, Lucia (2016) Justicia de transición en España: claves para aprobar una asignatura pendiente, Revista de Paz y Conflictos, Vol. 9, nº 1, pp. 209-234. sobr e los autor es • about the authors Lucía Payero López es doctora en Derecho por la Universidad de Oviedo y colaboradora de honor del Área de Fi- losofía del Derecho de dicha Universidad. Participa como investigadora en el proyecto “Neo-federalism: Dividing Political Power among People(s)”, financiado por el Consejo de Investigación Europeo (ERC) y desarrollado en Durham Law School (UK). 
work_3lojazwgvjbc3e6k55gvk3z4ou	----	Book reviewvs 117 Clinical Ethics ARJonsen,M SieglerandWJ Winslade West Drayton, Collier Macmillan, 1982, £14. The subtitle of this book, which was first published in the United States, is 'A Practical Approach to Ethical Deci- sions in Clinical Medicine' and the authors are a philosopher, a clinician and a lawyer. The reader is given the benefit of a consensus, as it were, after the authors have discussed each problem amongst themselves. The book is crisp and short but there is an excellent bibliography and as well as a table of contents there is a 'locator' which is very helpful and there is good cross-referencing. These aids are important because instead of the more conventional arrangement of chapters by subject there are only four chapters: Indications for medical intervention; Patient preferences; Quality of life, and External factors. As the authors indi- cate in the introduction these titles are taken from philosophical literature and based on the 'Principle of beneficence behind indications for medical inter- vention, the principle of autonomy behind patient preferences and some form of Utilitarianism behind quality of life and external factors'. This grouping may seem awkward to the clinician but all the practical problems of day-to-day decisions are readily found and helpfully discussed. By 'clinical ethics' the authors mean 'the identification, analysis and resolution of moral problems that arise in the care of a particular patient'. The book, which fits readily into the pocket of a white coat, is intended primnarily for doctors, but it will also be helpful to medical students and to nurses. Although written for a readership in the United States, it is entirely relevant to the scene in other countries and the bibliography is international. The case histories are numerous, varied and succinct. The comments provoke thought and do not attempt to lay down dogmatically the appropriate course of action. The authors stress the very close links which should exist between the ethics component and the clinical care component for each patient. One ofthe authors, Siegler, has described elsewhere (Medical Ethics and Medical Education. Geneva; Council for International Organisation of Medical Sciences, CIOMS: 1981: 196-206) a model for the practice and teaching of clinical ethics. He emphasises that it is the clinician who can best understand the medical moral issues as problems within the context of the clinical situation. He goes on to describe his programme in clinical ethics which runs concurrently with a one-month attachment to the acute general medical unit. During the month the group often students meets three times a week for clinical ethics. The meetings are held in a conference room within the medical unit. They are inter-disciplinary and are led by a senior member of staff of the medical unit. A student presents the ethical aspects of a case currently in the unit and discussion follows. This arrangement emphasises the integration of ethics into clinical care. This is the approach which pervades Clinical Ethics and the reader feels he is taking part in such an interdisciplinary discussion on a great variety of day-to- day problems. A S DUNCAN Emeritus Professor ofMedical Education Uniersity ofEdinburgh A Christian Framework for Medical Ethics C Gordon Scorer London, Christian Medical Fellowship Publications, 1980, 50p. This is indeed a quart into a pint pot. In the course of a mere 14 pages Scorer mentions various themes. He discusses the power and responsibility of the doctor, which entails that medical ethics is vital, going far beyond medical etiquette. Another of his themes is the challenge to traditional ethics (which, one infers from what he writes, has been ofan individualist kind, focusing on the one-to-one doctor-patient relationship) by team work; by increasingly well informed patients who may well demand their rights; by new, profound, and sometimes insoluble ethical problems arising from new medical technologies and their cost, and by the increasing control over the doctor not only by his professional organisations but by the State. He argues that an ethical system is required which is consistent and comprehensive, but not legalistic. That is to be found in the Ten Commandments and Christ's expansion of them. A series of particular ethical problems are also mentioned - truth, confidentiality, consent, euthanasia, abortion, Artificial Insemination by a Donor (AID), and contraceptives for immature teenagers. The contribution of Christians to the medical profession is to stand for sound learning and to warn against covetousness. Love is their mainspring; and this may mean choosing between two evils. It certainly means avoiding sentimentality or moralism. Scorer was joint editor of a book in 1979 on moral-decision making in medicine, and there is clearly much ex- perience behind what he writes. Here he has attempted the impossible. If it is intended as a general survey to whet the appetite he should have indicated its limitations. For instance there is no hint of the problems which inevitably arise in the intermediate steps needed in moving from the Bible to particular contemporary decisions in the medical or any other field; nor is there any hint of problems when he urges his readers to press for 'sound legislation which will support Christian values rather than undermine them'. Here again agree- ment on details will raise problems among Christians themselves, apart from those of living in a plural society. The tone is admirably eirenic, as one would expect from one who refers four times to the thought of William Temple. RONALD PRESTON Faculty ofTheology University ofManchester Triage and Justice Gerald R Winslow Berkeley, Los Angeles & London, University of California Press, 1982, £15.00. Triage, the practice of screening patients in order to determine their priority for treatment, has long been a familiar aspect of military and emer- gency medicine. The word 'triage', according to the author of this valuable new book, first entered English with reference to the grading of agricul- tural products and later, during World War I, acquired its medical meaning. Put simply, the practice is based on what Winslow identifies as the principles of medical neediness and medical success: those who need treatment in order to survive are given priority over those who will recover without treatment and those who, even with treatment, will probably die. Triage has also been governed by what Winslow terms the principles of conservation and of immediate usefulness: lower priority, that is, may be given to patients whose survival requires resources, including time, sufficiently great to keep alive at least o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .9 .2 .1 1 7 -b o n 1 Ju n e 1 9 8 3 . D o w n lo a d e d fro m http://jme.bmj.com/ 118 Book reviews two other candidates; while higher priority may be given to those, for ex- ample, doctors or nurses, whose treat- ment for less severe injuries will return them rapidly to usefulness. To those given low priority, and to those who care for them, the workings of triage may feel unfair, and the relevant decisions are often not taken without regret: but at this sharpest end ofmedi- cine, any lingering over the injustice of triage is a luxury. But what in one context is a luxury, in another may be a necessity. Triage and Justice has been written in the aware- ness that the principles of triage may be extended to other areas of medicine, particularly but not only during the development of expensive new tech- nologies. In an historically interesting introductory chapter, Winslow traces the development of triage in military medicine from the practice of Baron Larrey, Napoleon's chief medical officer (who insisted that casualties be tended 'entirely without regard to rank or distinction'), through the American Civil War and the two World Wars, to the more explicit categories of modern medico-military textbooks. By World War II triage principles had begun to be employed for large-scale allocation deci- sions (macroallocation) as well as in their original microallocation battlefield context: it was decided, for example, that soldiers and airmen suffering from gonorrhoea rather than battle casualties should be treated with the scarce re- source of penicillin, the justification being that of immediate usefulness to the war effort. In the post-war period, with the advent ofnew forms ofmedical technology and therapy, justification of macroallocation choices and their microallocation counterparts became more problematic: in the USA during the 1960s, for example, there was con- siderable public debate about the attempt, at the Seattle Artificial Kidney Centre, to formulate non-medical cri- teria for the selection of patients for the scarce resource of renal dialysis. In this debate, since the employment of such traditional triage principles as medical neediness, medical success and con- servation was unlikely to narrow the field sufficiently, other utilitarian principles such as those of parental role and value to society were suggested as ways of determining priorities; the principle of immediate usefulness moreover was adapted by some to justify giving priority to patients who could pay enough for it to meet the cost of others' treatment. But against these, other principles - of medical and general neediness, of queuing, of random selection, even ofsaving no one when all cannot be saved - were and have subsequently been advanced as criteria for these new triage choices. The introduction ofthese latter kinds of principle, which Winslow categorises as egalitarian, indicated that the utilitarian approach of military and emergency medicine was much less publicly accep- table in the civilian context. Away from the scene ofbattle or ofdisaster, in other words, the claims of justice became more pressing and demanded further discussion. Winslow's book is a useful contri- bution to this discussion. It identifies five utilitarian principles (medical suc- cess, immediate usefulness, conserva- tion, parental role and general social value) and five egalitarian (saving no one, medical neediness, general needi- ness, queuing and random selection) which have been argued for as criteria in triage, and considers each in relation to two hypothetical 'prismatic cases' (a future San Francisco earthquake and the development of an artificial heart) which illustrate different ways in which triage might be called for. Considera- tion of these principles is prefaced by a chapter in which Winslow argues per- suasively against the view that 'dire scarcity' ('the lack of a life-sustaining resource that cannot be further divided and remain effective') necessarily renders all forms of triage equally 'non- just': it would be unjust, for example, not to conduct triage impartially and also unjust not to use the scarce resource at all. On this latter basis, Winslow re- jects the egalitarian principle of saving no one, while acknowledging the moral weight of revulsion against having to make such choices at all. Addressing the question ofwhether the other principles can be ranked in some order of priority, Winslow makes use of John Rawls's much-discussed 'Theory of Justice' and in particular the ranking which might be adopted by Rawls's rational but self- interested social-contract makers behind their 'veil of ignorance' about their own individual life-chances. The result gives priority to the egalitarian criteria of medical neediness and queuing (in disasters such as the earth- quake) or random selection (for such benefits of medical advance as the arti- ficial heart). The priority offair equality of access to scarce life-saving resources, however, has to be limited by appli- cation of the utilitarian principles of medical success and conservation and (in disasters) by that of immediate use- fulness. The usefulness of giving priority in medical advance to wealthy candidates who can pay for others' treatment is admitted to be rational in microallocation, but its moral offen- siveness questions the whole market approach to health care. Rawls's con- tractors would seem unlikely to choose the US system, and in Winslow's view they would also reject both the utili- tarian criteria of parental role and general social value and, even if it could be applied, the egalitarian principle of general neediness. In reaching these conclusions, Winslow has some difficulty with Rawls's theory: as he admits, it is con- ceived for conditions ofmoderate rather than dire scarcity and for something closer to macroallocation than micro- allocation, in which Winslow is primarily interested; moreover it says too little about health and health care and too much about the contractors' parental role for Winslow's immediate purpose. The book might have been better had the author been less respect- ful towards the philosophical master and instead addressed his case more plainly in his own words to a more medical and general readership. But against this it must be admitted that leaving the security of Rawls's philo- sophical buttressing is a daunting prospect for the critic ofprevailing utili- tarianism, perhaps especially in a medical context; and Winslow's achievement in bringing the Theory of Justice this much nearer practical pro- blems is no mean one. Triage andJustice is to be recommended as an economical but comprehensive book which brings considerable clarity to many important aspects of the ethics of resource allo- cation in health care. KENNETH M BOYD Scottish Director Societyfor the Study ofMedical Ethics o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .9 .2 .1 1 7 -b o n 1 Ju n e 1 9 8 3 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_3ltprtf4anck5lqvkmlfatfjza	----	Justice, Deviance, and the Dark Ghetto Justice, Deviance, and the Dark Ghetto TOMMIE SHELBY The truth of the dark ghetto is not merely a truth about Negroes; it reflects the deeper torment and anguish of the total human predicament. Kenneth B. Clark, Dark Ghetto Unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind. John Rawls, A Theory of Justice In the United States, some citizens sharply criticize poor people who live in ghettos. These critics demand that the urban poor take greater “per- sonal responsibility” for their choices and stop blaming the government or racism for hardships that they have imposed on themselves through self-defeating attitudes and bad conduct. The problems of the ghetto, on this view, are primarily the result of a crisis of values, best remedied by reaffirming a collective commitment to living morally upright lives. On the other side are those who criticize the government for its failure to ameliorate the social conditions of the ghetto poor. They believe the government and affluent citizens have an obligation to improve the impoverished lives of the ghetto poor and should stop “blaming the victim,” that is, should stop criticizing the poor for a situation brought about by the failure of the society to live up to its professed ideals. Rather than demand that the ghetto poor change, they argue that the social system should be made more equitable. This debate raises highly contentious and urgent practical issues. It also raises difficult philosophical questions. I am not thinking primarily about traditional problems of free will and moral responsibility. The problems I will focus on lie in the domain of the theory of justice. Spe- cifically, my concern is to determine what kinds of criticisms of the ghetto poor’s behavior and attitudes are or are not appropriate given that © 2007 by Blackwell Publishing, Inc. Philosophy & Public Affairs 35, no. 2 the social circumstances under which they make their life choices are, at least in part, the result of injustice. If the overall social arrangement in which the ghetto poor live is unjust, this requires that we think about what their obligations are quite differently than we should if the society were judged to be just.1 In particular, I will argue that it is necessary to distinguish the civic obligations citizens have to each other from the natural duties all persons have as moral agents, both of which are affected, though in different ways, by the justness of social arrange- ments. In addition, among the natural duties all persons possess is the duty to uphold, and to assist in bringing about, just institutions, a politi- cal duty that has important, though generally overlooked, consequences for the debate about ghetto poverty. Throughout I will stress the importance of assessing the moral status of the ghetto poor’s conduct within nonideal political theory, that under- developed part of the theory of justice that specifies how we should respond to or rectify injustice. This is not, of course, the only relevant evaluative point of view. It is, however, a crucial and frequently neglected one, at least when it comes to thinking about the conduct of poor urban blacks. In addition, viewing these problems from the stand- point of justice—rather than, say, that of traditional American values or I have benefited greatly from discussions of drafts of this article with seminar partici- pants and audiences at UC Berkeley, Princeton University, Columbia University, the Society for the Study of Africana Philosophy, Harvard University, University of Toronto, and a moral philosophy conference in Dubrovnik, Croatia, sponsored by Ohio State Uni- versity, University of Maribor, and University of Rijeka. For comments and discussion, I’m grateful to Anthony Appiah, Nir Eyal, Samuel Freeman, Niko Kolodny, Angelika Krebs, Ron Mallon, John Pittman, Amélie Rorty, Jessie Scanlon, Tim Scanlon, Samuel Scheffler, Walter Sinnott-Armstrong, Melissa Williams, William Julius Wilson, and the Editors of Philosophy & Public Affairs. Research for this article was generously supported by the Center for Human Values at Princeton University. 1. Norman Daniels makes this important point when discussing how the “context of compliance” (i.e., the extent to which social institutions satisfy appropriate principles of justice) affects how we should assess the relative priority of (i) providing adequate welfare benefits to the poor, (ii) avoiding the creation of work disincentives, and (iii) maintaining equity between low-income earners. Most relevant to my concerns is Daniels’s claim, which I believe is correct, that the extent to which background conditions are unjust will have implications for determining who among the jobless poor are blameworthy for failing or refusing to work. (See his “Conflicting Objectives and the Priorities Problem,” in Income Support: Conceptual and Policy Issues, ed. Peter G. Brown, Conrad Johnson, and Paul Vernier [Totowa, N.J.: Rowman and Littlefield, 1981], pp. 147–64.) I develop and draw out the consequences of this insight for the debate over the obligations of the ghetto poor. 127 Justice, Deviance, and the Dark Ghetto technocratic social engineering—would, I believe, help to move us beyond the behavior-versus-structure impasse that afflicts current public discussions of race and urban poverty.2 To avoid misunderstanding, a few further introductory remarks are in order. I use the word ‘deviant’ throughout in its literal sense: sharply divergent from widely accepted norms. In using this term, which I concede is not wholly satisfactory, I am not endorsing its negative con- notations or expressing disapproval.3 Moreover, there are many different attitudes and behavior associated with the ghetto that some regard, whether rightly or wrongly, as deviant or even pathological. Not all of these are relevant to my argument. The principal forms of deviance I will discuss are crime, refusing to work in legitimate jobs, and having con- tempt for authority. i. justice and the basic structure To define the problem I will rely on some familiar notions from John Rawls’s theoretical framework: justice as fairness. Some hold that Rawls’s theory of domestic justice is too austere and utopian. So to address those less sympathetic to his account and to show that my conclusions rest on relatively weak normative principles, I will make my argument in a way that does not depend on the soundness of the overall Rawlsian apparatus or on its most demanding egalitarian claims. Instead, I will limit myself to a few core yet moderate ideas from this 2. Recent work in sociology has attempted to transcend the behavior-versus-structure debate by carefully demonstrating the subtle interaction between structural and cultural factors in the explanation of ghetto conditions. See, for example, Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, Mass.: Harvard University Press, 1993); William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Knopf, 1999); and Elijah Ander- son, Code of the Street: Decency, Violence, and the Moral Life of the Inner City (New York: Norton, 1999). Unfortunately, journalistic writing, public debate, and elite political dis- course do not generally reflect this more nuanced view of urban poverty. 3. For helpful discussions of how the public discourse surrounding urban poverty, including social scientific discourse, is often stigmatizing and even racist, see Michael B. Katz, The Undeserving Poor: From the War on Poverty to the War on Welfare (New York: Pantheon, 1990); Herbert J. Gans, The War Against the Poor: The Underclass and Antipoverty Policy (New York: Basic, 1995); Martin Gilens, Why Americans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy (Chicago: University of Chicago Press, 1999); and Ange-Marie Hancock, The Politics of Disgust: The Public Identity of the Welfare Queen (New York: NYU Press, 2004). 128 Philosophy & Public Affairs well-known theory, ideas that have an intuitive appeal because they are available in our public political culture.4 Rawls suggests that if we were to conceive of society as a system of social cooperation over time and take an impartial view of what the distribution of benefits and burdens of participating in this scheme ought to be, we could arrive at objective conclusions about what social justice requires. This is not a sociological claim. Thinking of society as a fair system of cooperation is a moral idea. Social justice is defined by the set of legiti- mate claims and obligations individuals have within a fair overall social arrangement. Thought about this way, justice is, at least in part, a matter of reciprocity between persons who regard each other as equals.5 Taking this approach to questions of social justice is particularly helpful when considering criticisms often made against the ghetto poor. It provides a framework for asking when the urban poor are doing their fair share in upholding the scheme of cooperation and when they are receiving the fair share due them as equal participants in this scheme. Rawls also emphasizes the paramount significance of the basic struc- ture for social justice. The basic structure is constituted by the way the major social, political, and economic institutions of society apportion the benefits and burdens of social cooperation. A well-organized and impartially administered basic structure may not be all we need to achieve or maintain social justice. Yet it should be clear why Rawls chooses to focus on it: the effects of the basic structure on an individu- al’s life prospects are immense and wide-ranging, and these effects have an impact on the quality of individuals’ lives from the cradle to the grave.6 Given that each of us must make a life for ourselves under the dominion of such institutions, we each have a legitimate claim that these institutions treat us fairly. The institutions of the basic structure fix a person’s initial position within society, and some individuals will be more, and some less, favored in the distribution of benefits 4. An additional advantage of drawing on Rawls’s theory is that it allows me to rebut the charge, frequently made by Critical Race Theorists and others on the Left, that this brand of liberalism, like its classical ancestor, has little insightful to say about issues of race and class. 5. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 15–18. 6. John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard University Press, 1999), p. 82; and Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, Mass.: Harvard University Press, 2001), p. 55. 129 Justice, Deviance, and the Dark Ghetto and burdens—of liberties, duties, opportunities, and material advan- tages—of this association over the course of their lives depending on their starting places within the social arrangement. This does not mean that a person’s life prospects are completely determined by the particular social circumstances he or she is born into, since a person’s own choices, the good or bad will of other individuals, and brute luck will have a significant impact as well; and of course in a liberal democratic regime, where individual autonomy is (or at least ought to be) respected, each person should take primary responsibility for how his or her life goes. But each individual’s life prospects are obvi- ously deeply shaped by a social structure that he or she did not choose. Moreover, it is largely through institutions—governments, schools, firms, markets, and families—that social, natural, and fortuitous contin- gencies come to affect our individual life chances. Thus the social arrangement we participate in should be organized to give each of us a fair chance to flourish. And on Rawls’s theory, providing that fair chance means ensuring that no citizen’s life prospects are diminished because the social scheme disadvantages him or her in ways that cannot be jus- tified on impartial grounds. It is also important to outline how we should understand racial justice.7 It is now a widely shared moral conviction that racial discrimination is unjust.8 But there is considerable disagreement over what such discrimi- nation consists in. Some think that racial discrimination must be moti- vated by racial animus or an explicit intention to exclude on racial grounds. Others believe that racial discrimination occurs whenever race is considered in decisions about how public institutions ought to treat persons, even if the proposed race-conscious policy is designed to promote some otherwise worthy social goal, such as reducing the eco- nomic marginalization of groups who have been historically oppressed or attenuating the legacy of racial exclusion by creating integrated schools 7. The remarks in this paragraph and the next are developed in greater detail in my “Race and Social Justice: Rawlsian Considerations,” Fordham Law Review 72 (2004): 1697– 1715; and “Is Racism in the ‘Heart’?” Journal of Social Philosophy 33 (2002): 411–20. 8. For evidence of this, see Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan, Racial Attitudes in America: Trends and Interpretations, rev. ed. (Cambridge, Mass.: Harvard University Press, 1997). 130 Philosophy & Public Affairs and neighborhoods.9 Rejecting both views, I hold that racial discrimina- tion is operating when a so-called racial characteristic (or set of charac- teristics) possessed by or attributed to the members of a social group is wrongly treated as a source or sign of disvalue, incompetence, or inferi- ority. Thus, racial animus is not a necessary condition for racial discrimi- nation, and not every invocation of race in public life constitutes discrimination, at least not if “discrimination” suggests unfairness. When the administration of the institutions of the basic structure is distorted by racial prejudice or bias, Rawls regards this as a violation of “formal justice.”10 Building on this, we can say that institutional racism exists when the administration or enforcement of the rules and proce- dures of a major social institution—say, the labor market or the criminal justice system—is regularly distorted by the racial prejudice or bias of those who exercise authority within the institution. Institutional racism can exist even when the content of the rules and procedures of an insti- tution, when viewed in the abstract, is perfectly just, provided there is pervasive racial bias in the application of those rules and procedures. Rawls also allows that in some societies, for instance, those with a long history of racism, it may be necessary to make special constitutional provisions that explicitly prohibit racial discrimination in the institu- tions of the basic structure, and even to grant special powers to the government to ensure that all citizens, regardless of their race, receive the equal protection of the laws.11 The core moral idea behind the prin- ciples of racial justice, and an obviously attractive one, is that in a just society each has a chance to carry out his or her own plan of life without being unfairly inhibited in this pursuit by others’ racial prejudice or racial bias. Some think that equal opportunity exists if no important position or good afforded by social cooperation is unfairly denied persons on account of their race, ethnicity, gender, sexual orientation, disability, religion, creed, or national origin. On this view, equal opportunity is simply non- discrimination. However, Rawls thinks of equal opportunity as entailing 9. For forceful criticisms of this “colorblind” principle, see Bernard R. Boxill, Blacks and Social Justice, rev. ed. (Lanham, Md.: Rowman and Littlefield, 1992), chap. 1. Also see Glenn C. Loury, The Anatomy of Racial Inequality (Cambridge, Mass.: Harvard University Press, 2002), chap. 4. 10. Rawls, A Theory of Justice, p. 51. 11. Rawls, A Theory of Justice, pp. 173–74. 131 Justice, Deviance, and the Dark Ghetto much more than this. In particular, he thinks fair equality of opportunity requires equal life prospects (as measured by primary social goods) given similar natural talents and motivation. One should be able to expect similar income and wealth over a life as anyone else who has the same abilities and the same willingness to use them regardless of the social class one has been born into. There should be no class barriers to the acquisi- tion of knowledge or the development of skills, which means that the educational system must be set up and administered so that each has the same chance to cultivate his or her abilities regardless of class origins. This brief description of the moral ideal of racial equality and equal opportunity within a fair basic structure is perhaps too abstract. To make these principles more concrete, let me describe an embodied institu- tional arrangement that seems, on its face, to violate them. Suppose that the basic structure of a liberal democratic, market-based society has the following characteristics. There is uneven growth and decline across different sectors of the economy; however, the government does not ensure that workers hit hardest by economic restructuring, declining wages, or periodic recessions are able to maintain their standard of living. For example, there is little attempt to provide retraining pro- grams, jobs in the public sector, or subsidized income for laborers in declining industries. In general, the economy is not structured to sustain full employment at decent wages, so there are always a significant number of unemployed persons who find it difficult to find a good job. Social entitlements are so meager that many of the unemployed are forced to live in poverty while they look for work, and some do not qualify for public subsidies at all. Let us also suppose that in this same society, there is, and has been for some time, a vastly higher rate of social mobility for the highly educated than for the poorly educated. However, the quality of kindergarten to grade 12 education varies widely from neighborhood to neighborhood. In affluent, middle-class, and mixed-income suburban neighborhoods, the public schools are generally good; in urban working-class and poor neighborhoods, the education offered is often significantly inferior and substandard. Yet despite these manifest and widely known inequities between suburban and urban schools, the government does not distrib- ute resources in a way to create equal educational opportunity across different neighborhoods, and most citizens in suburban communities do not push for a more equitable allotment of educational resources. 132 Philosophy & Public Affairs Finally, let us assume that this society is a multiracial one, with a white majority and several smaller nonwhite racial groups. The society has a long and brutal history of racial domination, exploitation, and exclusion. Indeed, it was once based on explicit white supremacist principles; and it practiced race-based slavery and de jure racial segregation enforced through terror. These practices have now been abolished, and constitu- tional and legislative provisions have been enacted to give racial minori- ties equal civil rights. Explicit expressions of racist attitudes have declined sharply. Nevertheless, covert forms of racial prejudice still exist and attenuate the impartial administration of the major institutions of the society. Antidiscrimination law is not effectively enforced, and too often, one must hire a private attorney to make sure one’s formal rights are adequately protected. Ongoing racial discrimination in employment and housing is a particularly acute problem and has a disproportionate negative impact on the poorer members of racial minority groups, as the education, financial resources, and social capital of more advantaged members allow them greater social mobility despite continuing racism. If under this institutional arrangement the tax scheme allows enor- mous intergenerational wealth transfers within families, some families will maintain considerable socioeconomic advantages over others, which allows them to provide better educations and better environ- ments (both residential and familial) for their children, and their chil- dren’s children. Moreover, the wealthy and well educated will be greatly advantaged in the competition for positions of political authority, so that their superior material assets and educational opportunities will often be tickets to political power, augmenting their already disproportionate influence on government policy via campaign contributions and sup- port for various lobbying efforts. Even in a constitutional democracy in which each citizen has a publicly recognized claim to all the basic politi- cal and civil liberties, these socioeconomic inequalities would create an informal social hierarchy by birth: some would be born into great wealth and other social and political advantages while others would be born into poverty and its associated disadvantages. Rawls thinks that such inequities are manifestly incompatible with basic fairness, for he believes that each citizen should have roughly equal life chances and equal prospects for influencing public policy. There are of course many who think that the fair equality of opportu- nity principle is too strong, demanding too much equality. And there are 133 Justice, Deviance, and the Dark Ghetto those who reject all egalitarian interpretations of the equal opportunity principle. Still, if, because a social scheme had the characteristics described above, the life prospects of some children were vastly inferior to those of others, it would be reasonable to regard these disadvantaged children as members of the lowest stratum in a descent-based social hierarchy. When such a hierarchy is, and has long been, marked by racial distinctions, equal citizenship, in any meaningful sense, does not obtain.12 In a society with an established democratic tradition, such a quasi-feudal order does not warrant the allegiance of its most disadvan- taged members, especially when these persons are racially stigmatized. Indeed, the existence of such an order creates the suspicion that, despite the society’s ostensible commitment to equal civil rights, white supremacy has simply taken a new form. ii. deviance as a response to the ghetto plight Ghettos are defined by three core characteristics: race, urban location, and poverty. In the United States, ghettos are generally understood to be (1) predominantly black, (2) urban neighborhoods, (3) with high concen- trations of poverty.13 Although ghettos exist in other advanced capitalist societies and my analysis is relevant to them as well, the issues of justice that U.S. ghettos raise are especially acute and in some ways unique.14 Of course, there are poor neighborhoods in the United States that are not predominantly black, and much of what I will go on to say about black ghettos (or analogous things) could be said about white slums, Latino 12. For a classic discussion of the relationship between being respected as an equal and the principle of equal opportunity, see Bernard Williams, “The Idea of Equality,” in his In the Beginning Was the Deed: Realism and Moralism in Political Argument, ed. Geoffrey Hawthorn (Princeton, N.J.: Princeton University Press, 2005), pp. 97–114. 13. See Paul A. Jargowsky, Poverty and Place: Ghettos, Barrios, and the American City (New York: Russell Sage Foundation, 1997), pp. 12–17. 14. For comparative accounts of U.S. ghettos with similar urban communities in Western European societies, see Barbara Schmitter Heisler, “A Comparative Perspective on the Underclass: Questions of Urban Poverty, Race, and Citizenship,” Theory and Society 20 (1991): 455–483; Loïc J. D. Wacquant, “The Rise of Advanced Marginality: Notes on Its Nature and Implications,” Acta Sociologica 39 (1996): 121–39; and Roger Lawson and William Julius Wilson, “Poverty, Social Rights, and the Quality of Citizenship,” in Poverty, Inequality, and the Future of Social Policy: Western States in the New World Order, ed. Katherine McFate, Roger Lawson, and William Julius Wilson (New York: Russell Sage Foundation, 1995), pp. 693–714. 134 Philosophy & Public Affairs barrios, some Indian reservations, and some Asian communities.15 I focus on black ghettos because they figure most prominently in the public imagination as enclaves of the pathological “underclass” and they are an especially salient example of the problems of racial and economic justice I am concerned with. I focus on high-poverty urban neighbor- hoods rather than on poor people wherever they happen to live because the high concentration of poverty in inner-city neighborhoods is associ- ated with behavior and attitudes that are not only deviant (i.e., in sharp conflict with commonly accepted norms) but are also widely perceived as a threat to the freedom, property, and safety of others and that there- fore lead some to regard many in such neighborhoods as not deserving of further government attempts to improve their lot. I should emphasize that many who live under ghetto conditions respect the law, accept conventional morality, and make an effort to conform to “mainstream” standards of public and private conduct. Some accept dead-end, menial, and low-wage jobs as they struggle to maintain a decent life for themselves and their families.16 Most value work and desire to be economically self-sufficient.17 Some graduate from high school or pass the GED; some of these get post-secondary educa- tion or job training; and a few even go on to graduate from college. In 15. These other ethnoracial minority communities present complications for questions of justice that black ghettos generally do not. For instance, many Asian enclaves and Latino barrios contain large numbers of first-generation immigrants. Fair equality of opportunity is not an appropriate standard for judging whether immigrants are treated fairly by the social system. Their place in the system did not begin at birth, and their life prospects will obviously depend, not only on whether they receive fair treatment in the United States, but also on the social advantages or disadvantages (e.g., in education and wealth) they had in their country of origin prior to immigration. Many from poor countries can substantially improve their material condition by immigrating to the United States, and so some do not resent the existing opportunity structure but are often grateful for the chance to enhance their lives, even if that chance is not equal to that of native-born citizens. Moreover, unlike native-born black Americans, immigrants generally have the option to return to their country of origin. Indians who live on reservations, on the other hand, are nations or quasi-nations unto themselves, with some rights of group self-determination. The recog- nized group rights and treaties between indigenous peoples and the United States com- plicate questions of social justice for Native Americans. African Americans, while a protected group under antidiscrimination law, do not enjoy such group-based rights, although I do not mean to imply that they should. 16. Katherine S. Newman, No Shame in My Game: The Working Poor in the Inner City (New York: Vintage and Russell Sage, 1999). 17. Wilson, When Work Disappears, pp. 67–70. 135 Justice, Deviance, and the Dark Ghetto short, a substantial segment of the ghetto poor are not alienated from the wider society, its major institutions, or its basic social norms.18 However, many are alienated, some deeply so. High-poverty neighborhoods with few good employment options and poor schools lead some residents, especially those unemployed for long periods, to consider securing income through illegitimate means.19 Ghetto poverty creates desperation and feelings of shame, and some, seeking to escape the weight of their social conditions, or at least to make it more bearable, resort to crime. Of course, crime does not just occur in the ghetto. People from all races, classes, and types of neighborhood engage in criminal activity for money, status, power, or amusement. When persons from the ghetto choose crime, however, they do so under conditions of material deprivation and institutional racism. Thus their criminal activity might express something more, or something other, than a character flaw or a disregard for the authority of morality. Some rely on crime to supplement legitimate income derived from work, welfare benefits, or private aid. Others, such as those who have dropped out of the legitimate labor market altogether, do not qualify for welfare benefits, or cannot rely on kin support, use crime as their primary source of income. Although the line is fine and easy to cross, some persons commit crimes without allowing “the streets” to define their social identity or corrupt their souls.20 Nevertheless, to engage profitably in street crime one must develop the appropriate skills, strat- egies, and dispositions. This repertoire is simply street capital, assets that one can use to secure income in the underground urban economy. Just as one may use financial capital without being, strictly speaking, a “capitalist,” one can draw on street capital without being a “criminal.”21 However, crime can become a vocation, and as such it has its own set 18. See Jennifer L. Hochschild, Facing Up to the American Dream: Race, Class, and the Soul of the Nation (Princeton, N.J.: Princeton University Press, 1995), chap. 4. 19. As with the term ‘deviant,’ by ‘illegitimate’ I do not mean ‘unjustified.’ That would beg the question. Rather, these are means, should one use them, that would violate widely recognized behavioral norms, whether legal, moral, or traditional. These norms can be “legitimate,” in the relevant sense, without being fully justified. 20. See Sudhir Alladi Venkatesh, Off the Books: The Underground Economy of the Urban Poor (Cambridge, Mass.: Harvard University Press, 2006). 21. It is just this distinction between having committed criminal acts and being habitu- ally disposed to criminal behavior that is elided in Michael Levin, “Responses to Race Differences in Crime,” Journal of Social Philosophy 23 (1992): 5–29. 136 Philosophy & Public Affairs of disciplines or what I will call “ethics.” There are two broad criminal ethics that I want briefly to describe. Note that these descriptions are to be understood as ideal types, constructed to highlight the core features of a particular action-orientation by abstracting away from character- istics that are extraneous. Real people will rarely embody these ethics consistently or fully, although some may aspire to. “Gangsters” use violence, threats, and intimidation to forcibly extract money, goods, and services from others. They are fearless and use force or the threat of it to get what they want. They are skilled fighters and adept at the use of weapons. They can strike fear in their victims with little effort. To achieve their aims, they maim and even kill, sometimes without mercy or remorse. The criminal domain they operate in includes robbery, gam- bling rackets, loan sharking, and extortion. “Hustlers,” by contrast, use deception, manipulation, and treachery to achieve their objectives. They are skillful liars. They are cunning and proficient at subtly exploiting their victims’ personal weaknesses. As amateur psychologists, they have a gift for understanding human nature, a talent they use to garner their victims’ trust, only to betray them. Their domain includes theft, fraud, prostitu- tion, and swindling. Both gangsters and hustlers flout the law and have little if any respect for the authority of mainstream institutions. These attitudes are appropriate to their trade; it is rational to cultivate them once one has chosen street crime as a way of life.22 It should go without saying that these two ethics are not mutually exclusive; one need only consider the modus operandi of many pimps.23 Nowhere is this more obvious, however, than in the selling of illegal drugs in the ghetto. Although few accumulate significant wealth from it, the selling of illegal narcotics is a way to make money fast, as there is regular demand, especially for cocaine, heroin, and amphetamines. This feature of the trade provides a strong incentive to turn to it when in pressing finan- cial need. It is also a dangerous business, however, and in an era of 22. The “gangster” and the “hustler” are familiar social identities in poor urban com- munities, and these terms are generally associated with male personas and activities. In adopting these urban vernacular expressions, I do not mean to imply that only men and boys perform these roles or accept their associated ethics. Moreover, both men and women, boys and girls, use street capital and deploy the tactics and strategies of gangsters and hustlers, though obviously not always in the same ways or with the same frequency. 23. See my “Parasites, Pimps, and Capitalists: A Naturalistic Conception of Exploita- tion,” Social Theory and Practice 28 (2002): 381–418. 137 Justice, Deviance, and the Dark Ghetto law-and-order politics—with its accelerated growth in the penal system, widespread punitive attitudes, aggressive policing, limitations on judi- cial discretion in sentencing, and increased prosecutorial authority—it can lead to long prison terms.24 Those who practice the trade successfully and are willing to accept these risks and costs sometimes come to whole- heartedly identify with the gangster-hustler ethic. Gang members often embrace this ethic and develop forms of group solidarity in order to defend their financial interests against rival gangs. Those who join these gangs are generally expected and encouraged to show loyalty to other members but not to outsiders.25 Many who engage in street crime are eventually caught and spend time in federal penitentiaries, state prisons, county jails, or juvenile detention centers. Under state confinement, the street repertoire is aug- mented, the gangster-hustler ethics are reinforced, and hostility toward the institutions and officials of the criminal justice system hardens.26 Once released, the incentive to return to crime often increases, as the ex-convict’s job prospects and earning potential are even dimmer with a criminal record.27 The constant cycling of increasing numbers of people from ghetto to prison and back again spreads a criminal-minded ethos, an outlaw subculture, throughout many poor urban areas. The norms that govern the world of street crime also have an enor- mous impact on ghetto residents who want to avoid criminal deviance.28 For example, the widespread use of guns among drug dealers and muggers creates a demand for these weapons in ghetto neighborhoods. Because they believe the police cannot be relied upon to provide adequate security, many residents, including children, arm themselves 24. See Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), chap. 3; Lawrence D. Bobo and Devon Johnson, “A Taste for Punishment: Black and White Americans’ Views on the Death Penalty and the War on Drugs,” Du Bois Review 1 (2004): 151–80; and Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1997), chap. 10. 25. Sudhir Alladi Venkatesh and Steven D. Levitt, “ ‘Are We a Family or a Business?’ History and Disjuncture in the Urban American Street Gang,” Theory and Society 29 (2000): 427–62. 26. Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punishment and Society 3 (2001): 95–133. 27. Western, Punishment and Inequality, chap. 5. 28. Venkatesh, Off the Books; Wilson, When Work Disappears, pp. 59–72; and Anderson, Code of the Street, chap. 3. 138 Philosophy & Public Affairs for protection.29 A looming sense of danger and a high propensity for violent interpersonal conflict sow seeds of distrust in ghetto neighbor- hoods, making it difficult for a broad sense of community to form or be maintained. Residents are always on guard and view strangers with sus- picion, for one can never be sure that others are not looking to take advantage of you. In adapting to these conditions, many residents not directly involved in crime develop survival strategies that are similar to or mimic the strategies of gangsters and hustlers. To avoid being victim- ized one must appear shrewd and capable of defending oneself, with deadly violence if necessary. Here the familiar male adolescent desire to appear “tough” can take on lethal dimensions, with frightening conse- quences for those who live in urban communities; and many adolescent girls, though under somewhat less pressure to display a readiness to resort to violence, are also drawn into some of these antisocial roles. Under these conditions a ghetto subculture emerges, where the traits of the gangster and hustler, usually condemned in mainstream society, are sometimes viewed as virtues. So far I have not mentioned the racial significance of deviance in ghetto communities. Yet this dimension is crucial to understanding the choices many poor urban blacks make. Notwithstanding the widespread belief that racism is a thing of the past and the growing demand for color-blind public policy, racial prejudice continues to have a negative impact on the life chances of racial minorities in the United States, especially black citizens.30 The impact of institutional racism is deepest in dark ghettos, because here racism and extreme poverty combine to create a uniquely stigmatized subgroup of the black population. The peculiar conse- quences of this dynamic, especially when joined with the ghetto subcul- ture just described, play themselves out in many arenas, but here 29. Jeffrey Fagan and Deanna L. Wilkinson, “Guns, Youth Violence, and Social Identity in Inner Cities,” in Crime and Justice, Vol. 24, ed. Michael Tonry and Mark H. Moore (Chicago: University of Chicago Press, 1998), pp. 104–88. 30. See, for example, Lawrence Bobo, James R. Klugel, and Ryan A. Smith, “Laissez- Faire Racism: The Crystallization of a Kinder, Gentler, Antiblack Ideology,” in Racial Atti- tudes in the 1990s, ed. Steven A. Tuch and Jack K. Martin (Westport, Conn.: Praeger, 1997), pp. 15–41; Thomas C. Holt, The Problem of Race in the Twenty-First Century (Cambridge, Mass.: Harvard University Press, 2000); Tali Mendelberg, The Race Card: Campaign Strat- egy, Implicit Messages, and the Norm of Equality (Princeton, N.J.: Princeton University Press, 2001); and Michael K. Brown, Martin Carnoy, Elliot Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Shultz, and David Wellman, Whitewashing Race: The Myth of a Color-Blind Society (Berkeley: University of California Press, 2003). 139 Justice, Deviance, and the Dark Ghetto I focus on just three: employment, housing, and the criminal justice system. Many working-age ghetto residents have little education, are low skilled, and have gone long periods without legitimate jobs. In the urban labor market there are often many more applicants for low-skilled jobs than there are jobs available, so employers can afford to be selective, engaging in so-called statistical discrimination. These employers are aware that a criminal subculture affects social life in the ghetto, that there are high drop-out rates among urban blacks, and that many poor people do not work regularly. This leads some employers to expect blacks from the ghetto to be generally violent, dishonest, unreliable, and ignorant.31 Because of longstanding racial stereotypes, the high fre- quency of these traits among the ghetto poor may seem to lend credence to racist beliefs. For example, the joblessness of some ghetto residents will appear to many employers as laziness and this is of course a stereo- type that blacks strongly resent.32 One consequence of all this is that many employers avoid hiring blacks from the ghetto when they can find nonblack or suburban workers, and given the surplus of low-skilled workers in the labor pool this is easily accomplished. The racialized stigma attached to the ghetto affects the job prospects of all its black residents, even those who reject the outlaw ethic and seek to conform to mainstream norms. The frustration of dealing with racial discrimination by employers leads more blacks into the criminal subculture than would otherwise end up there. Many of those who want to find work probably could if they were able to move to suburban neighborhoods or integrated mixed-income urban areas. There tend to be considerably more job opportunities for 31. Joleen Kirschenmen and Kathryn M. Neckerman, “ ‘We’d Love to Hire Them, But . . .’: The Meaning of Race for Employers,” in The Urban Underclass, ed. Christopher Jencks and Paul E. Peterson (Washington, D.C.: Brookings Institution, 1991), pp. 203–32; and Wilson, When Work Disappears, chap. 5. 32. For a general account of how racist beliefs and attitudes reproduce oppressive conditions, see my “Ideology, Racism, and Critical Social Theory,” Philosophical Forum 34 (2003): 153–88. Also see Robert Miles, Racism (London: Routledge, 1989); Barbara J. Fields, “Slavery, Race and Ideology in the United States of America,” New Left Review 181 (1990): 95–118; John T. Jost and Mahzarin R. Banaji, “The Role of Stereotyping in System- Justification and the Production of False Consciousness,” British Journal of Social Psychol- ogy (1994): 1–27; Bobo, Klugel, and Smith, “Laissez-Faire Racism”; and Jim Sidanius and Felicia Pratto, Social Dominance: An Intergroup Theory of Social Hierarchy and Oppression (Cambridge: Cambridge University Press, 1999), chap. 4. 140 Philosophy & Public Affairs low-skilled workers in these areas than in or near the ghetto.33 Schools are of much higher quality there too. Housing is more expensive in these other communities, however, often way out of reach for poor people.34 Most middle-class people, including many middle-class blacks, do not want to live among the ghetto poor and do not want their children to be forced to attend the same schools with them either; thus they are willing to pay a high premium to reside in better neighborhoods, driving up already high housing costs. Yet it would be a mistake to think that the black poor find it so hard to exit the ghetto solely because of the uncoordinated decisions of indi- viduals or impersonal market forces (and even if these factors were the complete explanation, it would not follow that justice permits us to tol- erate these unintended consequences). Racial discrimination in housing and practices of neighborhood organizations designed to segregate poor blacks in the inner city (including opposition to busing and advocacy of neighborhood schools) also play a large part.35 Therefore it is enor- mously difficult for the black poor to escape ghettos, since either they cannot afford to move out or residents of nonghetto areas, whether because of racial prejudice, class bias, or narrow self-interest, inhibit the ability of the urban poor to join these better communities or attend high-quality schools. Many of the black urban poor are effectively con- fined to ghetto neighborhoods, isolated from the rest of society.36 They 33. William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University of Chicago Press, 1987), pp. 39–46; and John D. Kasarda, “Urban Industrial Transition and the Underclass,” in The Ghetto Underclass: Social Science Perspectives, updated edition, ed. William Julius Wilson (Newbury Park, Calif.: Sage Publi- cations, 1993), pp. 43–64. 34. Low-skilled inner-city workers could also get to jobs in the suburbs if they had cars, which most cannot afford. Public transportation systems in most metropolitan areas are woefully inefficient, creating long commuting times, and are often too expensive for the working poor to use daily. 35. Massey and Denton, American Apartheid; Mary Pattillo-McCoy, Black Picket Fences: Privilege and Peril Among the Black Middle Class (Chicago: University of Chicago Press, 1999); Camille Zubrinsky Charles, Won’t You Be My Neighbor? Race, Class, and Resi- dence in Los Angeles (New York: Russell Sage Foundation, 2006); and William Julius Wilson and Richard P. Taub, There Goes the Neighborhood (New York: Knopf, 2006). 36. It is worth noting that the ghetto poor do sometimes manage to exit poor neigh- borhoods but then only to return to the same or a similar neighborhood shortly thereafter. Indeed, some are able to move to nonpoor neighborhoods and then these new neighbor- hoods become poor later, as more poor people move in and the nonpoor move out. For many poor urban blacks, the problem is not so much getting out of the ghetto but staying 141 Justice, Deviance, and the Dark Ghetto must therefore confront the miserable job prospects and failing schools that exist in the inner core of U.S. metropolises. Faced with these tremendous obstacles, many choose to drop out of the legitimate labor market, turning to illegitimate means to generate income. One of the many tragic consequences of this situation is the mass incarceration of poor black people, especially young black men.37 Despite making up only 13 percent of the male population of the United States, black men constitute almost half of the male prison population, and on any given day, nearly a third of all black men in their twenties are in prison, on probation, or on parole.38 These black men are overwhelmingly from ghetto communities. The high levels of police surveillance, racial profil- ing, stiff penalties for minor parole violations, felon disenfranchisement laws, and general harassment of young urban blacks intensify their hos- tility toward the criminal justice system, and invite urban blacks to con- clude that they are living under a race-based police state whose intent is to prevent them from enjoying all the benefits of equal citizenship and to contain social unrest. Because of the extreme racial disparity in the numbers of persons under the supervision of the criminal justice system, the general stigma attached to a criminal conviction taints all blacks, especially young black men and boys from the ghetto. Moreover, black urban youth are sometimes seen as having a propensity to criminal behavior.39 These factors greatly disadvantage those from the ghetto who seek employment, decent housing, and good schools, for they are too often presumed to be (“naturally”) prone to lawlessness. To be clear, I am not denying the obvious fact that some born into ghetto poverty can, and do, manage to escape poverty and the ghetto, out. See Lincoln Quillian, “How Long Are Exposures to Poor Neighborhoods? The Long- Term Dynamics of Entry and Exit from Poor Neighborhoods,” Population Research and Policy Review 22 (2003): 221–49. 37. Becky Pettit and Bruce Western, “Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration,” American Sociological Review 69 (2004): 151–69; Loïc Wacquant, “From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the U.S.,” New Left Review 13 (2002): 41–60; see also Wacquant, “Deadly Symbiosis.” For a concise summary of the racist causes and racial consequences of mass incarceration in the United States, see Brian Barry, Why Social Justice Matters (Cambridge: Polity, 2005), chap. 7. 38. Marc Mauer, Race to Incarcerate (New York: New Press, 1999). 39. Lincoln Quillian and Devah Pager, “Black Neighbors, Higher Crime? The Role of Racial Stereotypes in Evaluations of Neighborhood Crime,” American Journal of Sociology 107 (2001): 717–67. 142 Philosophy & Public Affairs whether through state assistance, the help of other people, sheer per- sonal determination, or good luck. Yet if an unjust basic structure is a significant causal factor in explaining the rise and persistence of ghetto conditions and such conditions diminish the life prospects of citizens who live under them, the fact that some from the ghetto are still able to improve their lot through legitimate means and ultimately to leave the ghetto does not invalidate the claim for redress of those who remain behind. After all, some enslaved blacks during the antebellum era were eventually able to buy their freedom or were voluntarily released by their owners, and some southern blacks attained middle-class economic status through hard work and perseverance despite Jim Crow segrega- tion and the terror of the Klan. Although the racial status hierarchy in the United States is itself largely impermeable, it has never been so powerful that all blacks are confined to the lowest socioeconomic strata. The obstacles that the system continues to place in the way of poor blacks, though in some ways less burdensome than in the past, are nevertheless objectionable on grounds of justice. iii. is deviance reasonable? Imprudence is rightly regarded as a vice, and some of the choices ghetto residents make are no doubt unwise, given their risks, costs, and nega- tive long-term consequences for the actors themselves. Certain self- regarding duties are also relevant to assessing the behavior and attitudes of the ghetto poor: obligations to cultivate one’s basic capacities, to respect oneself as a moral person, or to avoid courses of action that would undermine one’s autonomy. While the ghetto poor are sometimes criticized on these grounds, and while such criticisms have led some to conclude that paternalistic or punitive responses are warranted, these questions, although important, are not what I want to focus on. My primary concern is to determine whether the deviant conduct and atti- tudes prevalent in the ghetto are unreasonable.40 That is, do these forms 40. For a discussion of the distinction between the rational and the reasonable in practical affairs, see Rawls, Political Liberalism, pp. 48–54. Also see T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998), pp. 189–94. A similar distinction, between cognitive-instrumental rationality and communicative rationality, is elaborated in Jürgen Habermas, The Theory of Communicative Action, Volume I: Reason and the Rationalization of Society (Boston, Mass.: Beacon Press, 1984), pp. 8–42. 143 Justice, Deviance, and the Dark Ghetto of deviance express an unwillingness to honor the fair terms of social cooperation that others accept and abide by? If the ghetto poor accept the benefits of the social scheme but violate the norms that make the scheme possible whenever doing so would advance their self-interests, then their nonconformity is opportunistic and may therefore appear unjustified to those complying with these norms. But, and this is the crucial point, whether their deviance is unreasonable depends on the justness of the overall social scheme. When people criticize the ghetto poor for failing to play by the rules that others honor, they are assuming, if only implicitly, that these rules are fair to all who play. As we have seen, however, the fairness of the scheme is open to doubt. Let us distinguish three possible assessments of the basic structure of U.S. society. On the first, we judge the United States to be a fully just society. In light of the observations summarized above, I do not regard this as a plausible view and so will not consider it further. On the second, we judge that there are some injustices that should be addressed but that the United States is not fundamentally unjust. On the third, we judge that the society is fundamentally unjust and will require radical reform to bring it in line with what basic justice demands. The question, then, is what obligations would the ghetto poor have if the second or third assessments were correct. To sharpen the question, I will invoke the familiar distinction between civic obligations and natural duties.41 Civic obligations are owed to those whom one is cooperating with to maintain a fair basic structure. They are the obligations that exist between citizens of a democratic polity as defined by the principles of justice that underpin their association. Civic obligations have binding normative force because of the contingent associational ties between citizens, that is, because of the formal or informal bonds that define a set of persons as a distinct people or nation. By contrast, natural duties are unconditionally binding, in that they hold between all persons regardless of whether they are fellow citizens or are bound by other institutional ties. Both civic obligations and natural duties are moral requirements. The key difference is that one has civic obligations qua citizen and natural duties qua moral person. 41. In elaborating this distinction I draw on Rawls’s distinction between social obliga- tions and natural duties, though perhaps not in the same way he intended. See Rawls, A Theory of Justice, pp. 93–101. 144 Philosophy & Public Affairs Within a liberal framework, civic obligations are rooted in the political value of reciprocity. As a beneficiary of the primary goods afforded by the scheme of cooperation, each citizen has an obligation to fulfill the requirements of the basic institutions of his or her society when these institutions are just. Such reciprocity forbids the exploitation of fellow members of the society. Rawls rightly insists that one should not attempt to gain from the cooperative labors of others without doing one’s fair share. Just as important, he also correctly maintains that we do not have obligations to submit to unjust institutions, or at least not to institutions that exceed the limits of tolerable injustice. One difficulty we must face, then, is ascertaining just where to draw the line beyond which injustice becomes intolerable. Rawls does not provide such a standard. One standard we might use, though, is to live with unjust socioeconomic inequalities if the constitu- tional essentials are secure. For Rawls these essentials are the familiar basic rights of a liberal democratic regime—such as freedom of speech, conscience, assembly, and association; the right to vote and run for office; the right to due process and judicial fairness—and the political procedures that ensure democratic rule.42 The constitutional essentials also include freedom of movement, free choice of occupation, formal justice, and a social minimum that secures the basic material needs of all citizens. The constitutional essentials do not, however, include fair equality of opportunity (i.e., Rawls’s egalitarian interpretation of the equal opportunity principle); nor do they include the difference prin- ciple (i.e., his requirement that socioeconomic inequalities always work to the benefit of the least advantaged). A plausible rationale for using this standard for tolerable injustice is that it is most urgent to secure the constitutional essentials, given their indispensable role in creating social stability, and that reasonable people can disagree over how much socioeconomic inequality can be justified and over when existing institutional arrangements satisfy the principles of economic justice. The constitutional essentials establish the political legitimacy of a social order by publicly affirming the equal status of all citizens under the rule of law. If an otherwise unjust society met this standard, this would not mean that citizens should not agitate for more socioeconomic equality or use democratic processes or other legitimate 42. Rawls, Political Liberalism, pp. 227–30. 145 Justice, Deviance, and the Dark Ghetto political channels to fight for policies that would achieve a more egali- tarian basic structure. It would simply mean that their civic obligations were still fully binding and thus that they should fulfill these obligations as they work for a more just social arrangement. Assume for the moment that this proposed standard for tolerable injustice is currently met in the United States. Would it be reasonable to expect the ghetto poor to fulfill their civic obligations, even as they justifiably resent and protest continuing socioeconomic inequalities? Many U.S. citizens, regarding their society as imperfect but reasonably just, believe that the ghetto poor are not entitled to further public expenditures to improve their lives apart from, perhaps, some allow- ance for basic subsistence (e.g., food stamps). The attitudes, habits, and values of many of the black urban poor are widely thought to be in conflict with legitimate expectations for civic responsibility. Each citizen reasonably expects other citizens to fulfill their basic obligations as a citizen, to do their fair share in sustaining an institutional arrange- ment that works to everyone’s advantage. In particular, most U.S. citi- zens think that everyone, including the poor, should obey the law and that all able-bodied, working-age citizens (unless they are providing care for dependent relatives, are economically self-sufficient without working, or are engaged in full-time education or job training) should support themselves through legitimate work, even if that work is hard, low-paying, and unsatisfying. Thus, when the ghetto poor engage in criminal activity or refuse to work legitimate jobs, this is widely regarded as a failure of reciprocity on their part. This would be the wrong conclusion to draw, however.43 To see why, we first should remind ourselves that job opportunities for low-skilled 43. One way to deny at least the job aspect of this conclusion is to hold that a general work requirement is incompatible with liberal principles of justice, which must be neutral with respect to reasonable conceptions of the good and must not rely on a pre-political notion of moral desert. Criticizing the ghetto poor for not working could thus be regarded as illiberal, insofar as such criticism is premised on the idea that work is good for the worker or that only those who work are deserving of equal respect and concern. However, Stuart White, relying on a Rawlsian fair-play argument, makes a strong case that an obligation to work is a requirement of civic reciprocity, provided background conditions are just and that all who are able, including the wealthy, are expected to make a labor contribution to the common good. See his “Is Conditionality Illiberal?” in Welfare Reform and Political Theory, ed. Lawrence M. Mead and Christopher Beem (New York: Russell Sage Foundation, 2005), pp. 82–109. 146 Philosophy & Public Affairs workers are severely limited and the jobs that are available are often menial, dead-end service positions that pay wages too low to provide adequate economic security for a family. Now it might be replied that if the ghetto poor do not want to take these low-wage jobs they should develop their skills so that they can compete for better ones. This would mean graduating from high school and getting some post-secondary education, which too few from urban communities do. Indeed, it could be argued that even if one accepted the demanding principle “from each according to his or her ability, to each according to his or her needs,” it would be unreasonable—and not merely a violation of a self-regarding duty—for citizens to refuse to develop their abilities. As is widely known, however, the quality of education available to ghetto residents is generally so substandard that most cannot get a basic education there, let alone proper preparation for college.44 Moreover, because of high housing costs and racial discrimination, most are not able to move to neighborhoods where the schools are better. Furthermore, without sig- nificant public subsidies, those admitted to college usually lack sufficient resources to pay. This lack of equal educational opportunity, which in turn creates an unfair employment opportunity scheme, vitiates any obligation to work (should such a duty exist).45 No doubt many U.S. citizens criticize the poor on perfectionist grounds (e.g., on the grounds that desert requires a good work ethic), and some believe that all citizens, rich and poor, should work. One could also believe, however, as I think many Americans do, con- sidering their attitudes toward taxes on inheritance, that civic reciprocity requires, not work per se, but economic self-sufficiency: doing one’s part in upholding the scheme of cooperation means not forcing one’s fellow citizens to support you (unless of course you are unable to support yourself). To refuse to take care of yourself is widely regarded as imposing unfair burdens on others, say, through high taxes. So I will not assume that the critic of the ghetto poor is necessarily committed to a general civic obligation to work. 44. See Gary Orfield, Susan E. Eaton, and The Harvard Project on School Desegregation, Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education (New York: The New Press, 1996); and Jennifer L. Hochschild and Nathan Scovronick, The American Dream and the Public Schools (New York: Oxford University Press, 2004). 45. Again, I am not here assuming a general civic obligation to work. I am assuming that if such an obligation exists, each citizen should have a fair chance to compete for the desirable jobs and should be reasonably well compensated if he or she must choose from among undesirable employment options. It goes without saying that if jobs are not avail- able, the duty to work could not be binding. For contrasting views on whether there is a general obligation to work, see Lawrence C. Becker, “The Obligation to Work,” Ethics 91 147 Justice, Deviance, and the Dark Ghetto One might object that if the ghetto poor will not accept the jobs they qualify for and they refuse, or cannot afford, to continue their education, they should simply get by on whatever public welfare provisions that are available or on private aid, but without resorting to crime. Leaving aside for the moment the adequacy of current welfare benefits, we can appreciate the weakness in this objection if we keep in mind that the basic structure of any society will, in predictable and alterable ways, encourage certain desires and ambitions in its citizens; and lawmakers generally take into account how the overall incentive structure in society will be affected by the policies they enact. Any affluent, mass-consumer, capitalist society will encourage—indeed actively cultivate—the ambi- tion to live comfortably (if not get rich). This is, after all, how such econo- mies reproduce themselves: by creating continual mass desire for a wide range of consumer goods and services. If such a society only guarantees the constitutional essentials, however, without providing every citizen with a real opportunity to reach the goal of material comfort, then it is far from obvious that those who, because of lack of resources, are inhibited in this pursuit are being unreasonable when they choose crime as an alternative to subsistence living.46 As noted earlier, the core value underlying civic obligations is not a demanding egalitarian standard but simple reciprocity. The problem with using the constitutional essentials as the threshold for tolerable injustice is that it does not ensure genuine conditions of reciprocity for the most disadvantaged in the scheme. Each citizen should be secure in (1980): 35–49; and Philippe Van Parijs, “Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income,” Philosophy & Public Affairs 20 (1991): 101–31. Also see White, “Is Conditionality Illiberal?” 46. This is a different point from the one Jeffrie G. Murphy makes in “Marxism and Retribution,” Philosophy & Public Affairs 2 (1973): 217–43. Murphy argues that because capitalist societies encourage greed, envy, and selfishness, it would be unfair to punish poor citizens who, in acting on these socially sanctioned motives, commit crimes. As he says, “There is something perverse in applying principles that presuppose a sense of com- munity in a society which is structured to destroy genuine community” (p. 239). Although I am sympathetic to Murphy’s position, I am suggesting something less radical. My point is rather that affluent capitalist societies encourage the expectation that, with a reasonable degree of effort, any able-bodied person has a fair chance to live a life of relative material comfort. So if a person develops a life-plan based on this expectation yet the expectation is frustrated, not because of one’s lack of effort or ability, but because of inequities in the prevailing opportunity structure, one is not necessarily being unreasonable when one chooses illegitimate means to attain the expected standard of living. 148 Philosophy & Public Affairs the thought that he or she has equal standing within the scheme of cooperation. This means that the scheme should be organized so that it publicly conveys to each participant that his or her interests are just as important as any other participant’s. Perhaps fair equality of opportu- nity sets the bar too high for tolerable injustice.47 Still, in a society that does not ensure a wide distribution of wealth and that relies primarily on the market to distribute income, the standard for tolerable injustice should include an adequate opportunity to develop marketable skills. Those who are denied this can legitimately object that they are not being treated as equally valued members of a scheme of cooperation that is supposed to be mutually advantageous. It might be objected that the ghetto poor, despite their disadvantages, do have some chance, albeit not the same chance as other citizens, to acquire marketable skills and to find good jobs. Why is this not a suffi- cient sign that the system accords them equal concern? In any case, since the ghetto poor are not taking full advantage of the educational and employment opportunities that are available, how can their complaints about the intolerable injustice of the system be taken seriously? If substandard schools and poverty wages were unavoidable byproducts of social cooperation under modern conditions, then the first objection would have merit. However, with adjustments to the tax scheme, schools could be dramatically improved and low-wage earners could be brought up to a decent standard of living. The public and their elected representatives simply lack the commitment to justice to make the relevant adjustments. To the second objection I will simply note, for the moment, that one way to register one’s principled opposition to an unjust social system is to forgo chances to benefit from its unfair oppor- tunity structure.48 47. But perhaps not. For compelling considerations in favor of treating fair equality of opportunity as a constitutional essential, see Seana Valentine Shiffrin, “Race, Labor, and the Fair Equality of Opportunity Principle,” Fordham Law Review 72 (2004): 1643–75. 48. A similar point is suggested in G. A. Cohen, “The Structure of Proletarian Unfree- dom,” Philosophy & Public Affairs 12 (1983): 3–33. Cohen is responding to the anti-Marxist claim that the members of the working class are not forced to sell their labor power since any one of them, or almost any, could start their own small business and thus exit the proletarian class. He raises the important possibility that some workers, out of solidarity with the others, may object to taking an individual escape that is not part of a general liberation for all. Some members of the lumpen-proletarian ghetto poor might reasonably take a similar position. 149 Justice, Deviance, and the Dark Ghetto Not only does the constitutional-essentials standard for tolerable injustice allow too much inequality, but there is also reason to believe that not even this standard is currently met in the United States. Insti- tutional racism still exists across a number of major social institutions. There has in addition been a sharp reduction in welfare benefits and other social entitlements for the poor and unemployed (provisions that, arguably, were not adequate to begin with), and many are now forced to work for poverty wages to receive even these meager benefits (e.g., work- fare programs and the earned-income tax credit). These circumstances suggest that the constitutional essentials are not secure. Having the con- stitutional essentials codified in law is not sufficient to regard them as secure, as even a cursory knowledge of the history of the black struggle for equal citizenship should make clear. Civil rights laws must also be impartially and effectively enforced, so that all citizens, regardless of race or class background, can be confident that those with institutional power will respect their rights. The existence of the dark ghetto—with its combination of social stigma, extreme poverty, racial segregation (including poorly funded and segregated schools), and shocking incar- ceration rates—is simply incompatible with any meaningful form of reci- procity among free and equal citizens. The ghetto poor justifiably feel that by demanding that they work in miserable, low-paying jobs to secure their basic needs, more advantaged citizens are simply trying to keep their taxes from rising or, worse, attempting to exploit the labor of poor people. And when the poor refuse this unfair arrangement, they are either stigmatized as lazy and unde- serving or they are penalized for trying to gain income in the under- ground economy. From the standpoint of many ghetto residents, the social order lacks legitimacy.49 There appears to be a conspiracy to contain, exploit, and underdevelop the black urban poor, to deny them equal civic standing and punish them when they refuse to accommodate themselves to injustice. This appearance of conspiracy is, I suspect, the reflection of an underlying failure of the social scheme to fully embody the value of reciprocity. If we are to take equal citizenship seriously, then not only should we not attempt to gain from others’ labor without 49. This point is developed, within a broadly Rawlsian framework, in Howard McGary, “The Black Underclass and the Question of Values,” in The Underclass Question, ed. Bill E. Lawson (Philadelphia, Pa.: Temple University Press, 1992), pp. 57–70. 150 Philosophy & Public Affairs carrying our fair share of the burdens of maintaining the system of coop- eration, but we should not demand labor from those being deprived of their fair share of the benefits from the system. I would conjecture that in an affluent society with a recent history of overt racial exclusion, no reasonable standard for tolerable injustice is compatible with persistent ghetto conditions. If this conjecture is correct, then when the ghetto poor in the United States refuse to accept menial jobs or to respect the authority of the law qua law, they do not thereby violate the principle of reciprocity or shirk valid civic obligations.50 iv. oppression and the duty of justice However, even if a society is fundamentally unjust, i.e., it exceeds the limits of tolerable injustice, it does not follow that the ghetto poor have no moral duties to one another or to others. Only someone who holds that the cognitive-instrumental or utility-maximizing conception of reason is the only legitimate conception could think that an unjust social order rationally justifies a war of all against all, in which the only valid value systems are those of the gangster and hustler. The ghetto poor do have duties, natural duties, that are not defined by civic reciprocity and thus are not negated by the existence of an unjust social order.51 Among these is the duty not to be cruel. Each also has the duty to help the needy and vulnerable provided this is not too personally risky or costly. There is a duty to not cause unnecessary suffering. There is a duty of mutual respect: to show due respect for the moral personhood of others. There are also many other basic duties. Such duties are not sus- pended or void because one is oppressed. The existence of these duties 50. It is perhaps worth noting that Rawls insists that even within a reasonably just society there is a limit to how much injustice people should have to endure. In particular, he thinks that the burdens of injustice should, over time, be distributed more or less evenly across different sectors and groups in society, so that the weight of oppression does not fall mostly on any one group. Thus he says, “[T]he duty to comply [with reasonably just institutions] is problematic for permanent minorities that have suffered from injustice for many years” (Rawls, A Theory of Justice, p. 312). Even if the United States is reasonably just (according to some defensible standard for tolerable injustice), the burdens that the black urban poor are forced to carry, and the length of time they have had to carry them, might justify their refusal to comply with institutional demands; and if they do not, strictly speaking, provide a justification for such deviance, they almost certainly provide a legitimate excuse. 51. Rawls, A Theory of Justice, pp. 98–100. 151 Justice, Deviance, and the Dark Ghetto makes some of the deviant attitudes and actions of the ghetto poor impermissible, not because they are forbidden by law but because they cannot be fully justified from a moral point of view. This means, at a minimum, that the reckless and gratuitous violence, the selfish indiffer- ence to others’ suffering, and the disregard for the humanity of one’s fellow human beings that are all too common in some poor urban neigh- borhoods should not be tolerated. There should also be special mindful- ness of how impressionable youth are and, in particular, of how observing the behavior of adults shapes a child’s moral development. Yet fulfillment of one’s natural duties to others may nevertheless be compatible with certain forms of crime. Taking the lives of others, except in self-defense or in defense of others, is hardly ever justified. However, taking the property of others, especially when these others are reason- ably well off, may be legitimate. Mugging someone at gunpoint may not show sufficient respect for the victim’s personhood, but shoplifting and other forms of theft might be justified. Given the hazards of participating in gang culture, recruiting children into gangs shows insufficient concern for the weak and vulnerable; yet given the advantages of con- certed group action, participating in gangs may be a defensible and effective means to secure needed income. There are also “victimless” crimes such as prostitution, welfare fraud, tax evasion, selling stolen goods, and other off-the-books transactions in the underground economy.52 There are of course many complex questions here about when coercion, threats, or deception may legitimately be used, and there is the salient question of which, if any, illegal narcotics may be sold to consenting adults without wronging them.53 I will not pursue these issues further, however. My goal is not to draw the precise line between permissible crimes and impermissible ones but only to offer reasons for thinking that the former set is not empty. I do, however, want to draw out the practical implications of one natural duty, the duty of justice. According to Rawls, this duty requires each individual (1) to support and comply with just institutions, and (2) where just institutions do not exist, to help to bring them about.54 No just 52. See Venkatesh, Off the Books. 53. For a helpful discussion of this latter issue, see Douglas N. Husak, “Liberal Neutral- ity, Autonomy, and Drug Prohibitions,” Philosophy & Public Affairs 29 (2000): 43–80. 54. Rawls, A Theory of Justice, p. 99. 152 Philosophy & Public Affairs societies or institutions could exist, at least not for very long, if individu- als did not work to create and sustain them. The very idea of social justice would seem to presuppose the duty of justice: no one can resent being treated unjustly and also consistently reject the duty of justice. Rawls argues for the validity of this duty by pointing out that the parties in the original position, seeing their common rational interest in the existence and stability of just institutions, would naturally agree that everyone should support and further such institutions. The duty of justice gives each person a strong moral reason to protest or resist unjust practices. The duty of self-respect, which is fulfilled by recognizing and affirming one’s equal moral worth as a person, also provides a reason to protest or resist injustice.55 But it differs from the duty of justice. One expresses self-respect by, for example, standing up for oneself when one has been treated unjustly, rather than meekly acquiescing. The duty of self-respect is a matter of defending one’s dignity in the face of injustice; the duty of justice is a matter of taking proactive steps to end injustice or to make the relevant institutions more just. The duty of self-respect is a self-regarding duty; the duty of justice is one owed to others. The duty of self-respect demands action from those who have been wronged; the duty of justice demands action regardless of whether one has been wronged. There have been important recent philosophical discussions about what relatively advantaged persons ought to do to eliminate or mitigate unjust circumstances.56 Yet there has been little attention to what obliga- tions to promote just institutions disadvantaged persons have. Some liberals are no doubt reluctant to discuss the moral obligations of the downtrodden out of an understandable distaste for “blaming the victim.” Moreover, they rightly maintain that indignation should be directed, first and foremost, toward the complacency of the well off, the “winners” in an unjust system. I want to insist, however, that the duty of justice also applies to the oppressed and in particular to the ghetto poor. Of course, it would be unreasonable to expect individuals to work to bring about a just society when doing so would be very dangerous or costly. Given the conditions in most ghettos, perhaps it is too much to ask 55. For a particularly insightful discussion of the duty of self-respect, see Boxill, Blacks and Social Justice, chap. 9. 56. See, for example, G. A. Cohen, If You’re an Egalitarian, How Come You’re So Rich? (Cambridge, Mass.: Harvard University Press, 2000); and Liam Murphy, Moral Demands in Nonideal Theory (New York: Oxford University Press, 2000). 153 Justice, Deviance, and the Dark Ghetto of ghetto denizens that they make significant contributions to the cause of social justice. After all, many have more than they can handle just trying to meet their basic needs and maintain their dignity. Yet it is reasonable to expect the ghetto poor, in addition to fulfilling their other natural duties, to not take courses of action that would clearly exacerbate the injustices of the system or that would increase the burdens of injustice on those in ghetto communities or others similarly situated, at least not when these negative consequences could be avoided without too much self-sacrifice. Nor should they do things that would clearly make a just society more difficult to achieve, provided in refraining from such actions they can maintain their self-respect and meet their other basic needs. Expecting the ghetto poor to honor their natural duties, including the duty of justice, does not blame the victims. The ghetto poor should not be held responsible for the appalling social conditions that have been imposed on them because of the workings of an unjust social structure, but they should be held accountable for how they choose to respond to these conditions. Demanding this basic level of moral responsibility treats them as full moral persons and as political agents in their own right. Too often ghettos are viewed as “sick” communities, burdened with myriad pathologies, that the state-as-physician (or some suitable social service organization, such as a charity or church) must “heal.” Not only is this doctor-patient approach to the ghetto too often an expression of offensive paternalistic sentiments (which have well-known black elite noblesse oblige variants), but also it is the wrong paradigm when we are dealing with a social problem whose origin lies in systemic injustice. We all, whether we belong to dominant or subjugated groups, have a duty to help establish just social arrangements. Given that the injustices at issue are features of a system of social cooperation that we all, winners and losers, participate in, we should view the project to correct these injus- tices as a joint one, or at least it should be so viewed among those who want to live in a just society rather than to profit from an unjust one. Unfortunately, in light of the ill will, selfishness, and callous indiffer- ence of many of their fellow citizens, social justice might not be achiev- able unless the ghetto poor take on a good deal of the burden in reforming their society. As has so often been true in human history, the oppressed must play a large role—sometimes they have to be the principal agents—in ending the unjust practices they are subjected to. For example, black citizens had to play significant roles in abolishing slavery and Jim 154 Philosophy & Public Affairs Crow, despite having suffered most because of these systems of domina- tion. The fact that this is, in some sense, unfair is irrelevant. The duty of justice is not based on the principle of civic reciprocity. It is a duty each has qua moral person, not qua citizen. Therefore, one cannot opt out of this duty because one’s fellow citizens fail to fulfill it. Nor should one stop short of doing more than others in the struggle for justice on the ground that were these others to do their part one would not have to do as much (though the criticism of these others is no doubt warranted). Exactly how one should go about fulfilling the duty of justice, that is, which specific courses of action would satisfy it, will depend on which particular social circumstances one faces. In light of these circumstances, one must make an assessment of how best to contribute to improving things. This assess- ment will necessarily involve determining just how much assistance one can realistically expect from others and how best to enlist this aid. When viewed from this vantage point, ghetto residents should think carefully about how they respond to the injustices of the social order and consider whether the forms of deviance they sometimes engage in are ultimately obstacles to effecting positive social change. Many people claim that they would be willing to help the poor pro- vided the poor would make an honest effort to help themselves by, say, working, getting an education, and staying out of jail. More advantaged citizens do not want to feel that they are being taken advantage of, and they often suspect that the urban poor lag behind because they lack the necessary work ethic. So one might think that, if not from prudential motives then from the duty of justice, the ghetto poor should avoid deviant behavior and take greater responsibility for helping themselves, as this would assure their fellow citizens that they are not being exploited and thereby encourage them to do something about improving the con- ditions in the ghetto.57 However, if the ghetto poor have compelling reasons to think that they are not being treated as equal citizens (say, because a tolerable level of injustice has been exceeded and they are being forced to carry the bulk of the burdensome consequences of this injustice), then they should be the ones worried about being hustled. Given rising inequality and the worsening of the ghetto/prison complex, which show no signs of abating, they have every reason to believe that 57. This argument is suggested in Jennifer L. Hochschild, “The Politics of the Estranged Poor,” Ethics 101 (1991): 560–78. 155 Justice, Deviance, and the Dark Ghetto their interests are not being given equal consideration. Why should they think that if they were only to behave better things would change? More- over, to ask them to demonstrate their worthiness for assistance that they are entitled to as a matter of justice would add insult to injury. The suggestion that the ghetto poor “prove themselves” before their compa- triots offer help fails to appreciate that acquiescing to injustice is simply incompatible with the maintenance of self-respect. v. from spontaneous defiance to political resistance One of the ways that the ghetto poor have sometimes responded to their plight is to engage in spontaneous rebellion. This may take the form of openly transgressing conventional norms, expressing contempt for authority, desecrating revered symbols, pilfering from employers or state institutions, vandalizing public and private property, or disrupting public events.58 Spontaneous rebellion reaches its apotheosis in the urban riot, where looting, mass destruction of property, and brutal vio- lence are on public display. When legitimate avenues for political action fail to produce results or are closed off, such public unrest can seem to be the only power the ghetto poor can wield collectively that has a chance of garnering concessions from the state.59 Many of these acts of defiance, though perhaps politically ineffective, may be necessary for the ghetto poor to maintain their self-respect. If nothing else, such actions can be cathartic and can help the oppressed to keep from turning on each other as they seek an outlet for their justified anger. Yet not all expressions of rebellion are aimed at protest- ing or changing the social order. Some ostensible defiance, on closer scrutiny, reveals itself to be no more than a desire to exploit the system opportunistically, as when demagogues take advantage of the anger of the poor to gain personal power or when gangsters and hustlers take advantage of others’ desperation merely for their own gain—capitalism by other means, as it were. What may have begun as principled 58. See Robin D. G. Kelley, Race Rebels: Culture, Politics, and the Black Working Class (New York: Free Press, 1996). 59. See Frances Fox Piven and Richard A. Cloward, Poor People’s Movements: Why They Succeed, How They Fail (New York: Vintage, 1979), pp. 18–23. For insightful reflections on the significance of a recent urban riot, see the essays in Reading Rodney King/Reading Urban Uprising, ed. Robert Gooding-Williams (New York: Routledge, 1993). 156 Philosophy & Public Affairs resistance can become, because of encroaching cynicism, “life-is-unfair” resignation. Some juvenile deviance is little more than adolescent rebel- lion unchecked by proper adult supervision. The key practical question, of course, is how, if at all, can this general impulse toward rebellion in U.S. ghettos be transformed into enduring and effective forms of political resistance. I will not pretend to have the answer to this difficult question. I would, however, like to briefly outline what kinds of moral criticism of the ghetto poor might be appropriate in light of the aim of cultivating constructive forms of resistance, thus giving some concrete content to the abstract duty of justice. Rawls distinguishes two different ways a society might be unjust.60 The first way is when the publicly recognized standards for judging the justice of the basic structure are sound but the institutional arrangement of the society fails to satisfy these standards. In this case, the society fails to live up to its own professed ideals, ideals that are worthy of public recognition. Alternatively, social arrangements may fit the prevailing conception of justice in the society or the political views of the ruling elite but neverthe- less be unjust. In this case, the dominant conception of justice is an ideology, a set of widely held beliefs and implicit assumptions that legiti- mates and thereby helps to sustain an oppressive regime.61 If the first situation obtains, the political opposition may be able to appeal to their fellow citizens’ sense of justice, highlighting the gap between ideals and practice. Here, nonviolent civil disobedience, public demonstrations, or other forms of mass protest that attempt to arouse the public’s sense of moral outrage may be productive. Since the era of New World slavery, the dominant tradition in African American activism, from Frederick Douglass to Martin Luther King, Jr., has generally taken this approach. However, if the society is stabilized by a deeply flawed conception of justice, for example one that serves the narrow interests of corporate and political elites, then more drastic or unconventional mea- sures may be warranted. Given a dominant ideology that advances a distorted view of what justice demands and that is widely endorsed because of narrow self-interests or illegitimate group interests, it might 60. Rawls, A Theory of Justice, pp. 308–10. 61. For a more developed account of when a socially accepted set of beliefs constitutes an ideology, with a particular focus on racial ideology, see my “Ideology, Racism, and Critical Social Theory.” 157 Justice, Deviance, and the Dark Ghetto not be sufficient to appeal to the majority’s sense of justice. Moral suasion and electoral politics may simply not be enough. Black nation- alists, from Martin Delany to Malcolm X, have taken exactly this position with respect to the United States, regarding this society as a deeply racist and plutocratic social order. Those who oppose such a regime would have to develop a militant social movement that pushes the society in a more progressive direction, not “by any means necessary” but perhaps through means widely, though mistakenly, regarded as unjus- tified. The black urban poor have often been attracted to such black nationalist doctrines.62 Of course this contrast between the two ways a regime can be unjust, although analytically useful, is too stark for practical purposes. Some aspects of an overall social arrangement (for instance, its educational and economic institutions) may be regulated by a corrupt ideology, while other parts (say, its constitution or basic political organization) may be just or diverge from reasonable public standards of justice. Indeed, con- trary to the view of some black radicals (who believe that liberal political thought and practice is rotten to the core), this mixed assessment may be the one most applicable to post–civil rights America, as the civil rights movement did, I believe, help to make blacks’ constitutional rights con- siderably more meaningful. Thus, the political resistance, even if it takes a militant form, must take into account the reasonableness of existing aspects of the social scheme and choose measures of opposition accord- ingly.63 To be sure, militant leaders must be willing to take political mea- sures that some might find unacceptable if overcoming serious injustices requires these tactics. And political insurgency aimed at overthrowing an oppressive regime is sometimes justified. However, given the proven difficulty of establishing and maintaining just institutions in the modern 62. There is a variant of this point of view that would appear to have traction in some urban black communities. On this alternative view, the United States is thoroughly corrupt and cannot be redeemed. Given that mass emigration would be impossible for the poor, the only viable option is to build self-reliant ghetto communities without any expectation that justice will someday prevail throughout the whole of the society. Even if this pessimis- tic prognosis were correct (although I do not believe it is or, rather, hope it is not), the duty of justice would still need to be honored in this black nation within a nation. However, I will not explore the practical implication of the duty in this context. For my response to this brand of black nationalism, see my We Who Are Dark: The Philosophical Foundations of Black Solidarity (Cambridge, Mass.: Harvard University Press, 2005), chaps. 3–4. 63. I owe this point to Tim Scanlon. 158 Philosophy & Public Affairs world, preserving the reasonably just components of an overall unjust system while pushing insistently for broader reforms may ultimately be a better strategy than abrupt radical reconstruction. Moreover, grassroots organizing and populist collective action would still require some measure of public order to be effective, and so the political institutions currently in place—with their provisions protecting freedom of speech, association, and assembly—could prove useful, their “superstructural” character notwithstanding. These are difficult and complex questions of political practice that theory can only do so much to illuminate. Yet no matter what form such opposition should take, the ghetto poor should be included in the resis- tance effort. In fulfilling the duty of justice, ghetto residents will need to build bonds of political solidarity with each other and with progressive allies.64 Such solidarity requires not only shared political values and the common goal of ending ghetto conditions but also a sense of compas- sion for those similarly oppressed. It calls for special concern, a willing- ness to help the most disadvantaged among you when you can. Solidarity demands loyalty to those you are working together with to change things for the better. Perhaps most important, it requires a sense of mutual trust, without which collective action cannot occur. If such solidarity is to form and be sustained, however, an outlaw subculture cannot reign in the ghetto. A climate of fear and suspicion erodes any chance of developing mutual trust. It undermines empathy and compassion because those who appear to be in need might in fact be trying to exploit you, or worse. If loyalty to one’s gang trumps all other loyalties or leads one to disregard the legitimate interests of those outside the gang, then no broader form of loyalty in ghetto communities can take shape, let alone stable forms of political organization. This means that the gangster and hustler ethics, qua value system, must be repudiated. I am not, however, suggesting that the ghetto poor are never justified in engaging in street crime. On the contrary, lacking acceptable alternatives, crime may be necessary to meet one’s needs or the needs of others. Nor am I saying that one should never make use of the criminal repertoire of 64. I describe the general requirements of political solidarity in We Who Are Dark, pp. 67–71. For a helpful discussion of what duties the members of oppressed groups have to each other, see Michael Walzer, “The Obligations of Oppressed Minorities,” in his Obliga- tions: Essays on Disobedience, War, and Citizenship (Cambridge, Mass.: Harvard University Press, 1970), pp. 46–70. 159 Justice, Deviance, and the Dark Ghetto gangsters and hustlers—street capital—to secure necessary income. The political economy of the underground may require these tactics. What I am suggesting is that the techniques of the gangster and hustler should not be used merely to gain power, status, or riches; that one should not allow these practices to constitute one’s enduring social identity; and that one should be careful not to let the use of these tactics corrupt one’s character. Gangsterism and hustling must not be regarded as vocations, but as survival tactics, means of self-defense, or expressions of justified rebellion. Moreover, if street capital is to be converted into political capital in a resistance movement, then ghetto rebellion should not be merely opportunistic or cathartic but, whenever possible, should publicly register dissent. It is crucial, given the duty of justice and on grounds of self-respect, that the ghetto poor make manifest their principled dissat- isfaction with the existing social order, either through politically moti- vated modes of deviance or in some other recognizable way. vi. conclusion The urban poor should not be demonized, stigmatized, or otherwise dehumanized, just as surely as they should not be romanticized. Yet it would be a mistake to think that they should never be morally criticized. Moral criticism can be appropriate even when the targeted behavior and attitudes have been shaped and encouraged by unjust conditions and even when those subjected to criticism are not responsible for the fact that these conditions exist. Such criticism is one way for the members of oppressed groups to hold one another accountable and to create mean- ingful bonds of solidarity, and can even be offered by sympathetic out- siders seeking to build political alliances. But there are legitimate and constructive forms of moral criticism and illegitimate and self-serving forms. By appreciating how the lack of justice in a basic structure affects what obligations citizens have, we might better distinguish the two types of criticism, and in the process invite the kind of joint action needed to establish and maintain justice. 160 Philosophy & Public Affairs 
work_3mxu6wn6hzbknkw7oo5lkg6nt4	----	A gray area of environmental justice. e e~~~ approved by the end of January 1995. If the program is approved, Scripps would immediately begin installing the speakers, and transmissions could begin that spring, Rogers said. A Move for the Better A change in where they live may change the outcome of a second pregnancy for women whose first child was born with a birth defect, according to a recent study published in the July 7 New England Journal ofMedicine. The odds of having a second child with a birth defect are small to begin with- about 2.2% in the Norwegian sample. However, the study, conducted by epi- demiologists Rolv Terje and Rolv Skjaerven in Norway and Allen Wilcox at the NIEHS, revealed that among women who had given birth to one baby with a defect, those who continued to live in the same town had almost 12 times the risk of giving birth to a second baby with the same defect. However, if these women moved to a new town, the risk dropped to five times the normal risk. The study also showed a slightly increased risk of deliver- ing a second child with a different defect from the first for women who remained in the same town. The study examined birth records of first and second infants born to almost 400,000 women in Norway between 1967 and 1989. Twenty-three categories of iso- lated defects and a category of multiple defects including, for example, cleft lip and palate, limb defects, genital defects, anen- cephaly, respiratory system defects, and central nervous system defects were studied. One surprising finding of the study is that moving to a new town correlated with a decreased risk of birth defects more than the second child being fathered by a differ- ent man. With a different father the risk of defects in the second child fell to 7.3. The authors say the study does not cast light on any causes for decreased risk, but when you move, said Wilcox, "you've changed some things: where you work, the house you live in...." Wilcox said that the study is more promising for guiding future research rather than for suggesting preven- tive measures. The researchers concluded that there is strong indirect evidence that environmental factors contribute to the familial risk of birth defects and that "important environmental teratogens have yet to be discovered." A Gray Area of Environmental Justice The issue of environmental justice is hard- ly black and white, especially in the realm Risk of similar and dissimilar birth defects in second infants of mothers with an affected first infant Second infant Defect in Similar defect Dissimilar defect first infant No. at risk Observed Expected Relative risk Observed Expected Relative risk Clubfoot 2784 100 14.7 7.3 59 42.0 1.4 Genital defect 1447 25 5.1 4.9 35 24.2 1.5 Limb defect 957 25 2.2 11.3 41 17.1 2.4 Cardiac defect 567 6 1.0 6.0 11 10.5 1.1 Total cleft lip 436 18 0.6 31.4 10 8.2 1.2 Isolated cleft palate 144 3 0.1 44.5 2 2.9 0.7 All combined 9192 201 26.4 7.6 249 164.6 1.5 Effect of a change in municipality or partner on the risk of a birth defect in the second infant similar to the defect in the first infant Similar birth defect in second infant Mothers with affected Mothers with normal first infants first infants Partner Municipality Cases Total Cases Total Relative Risk Same Same 115 4200 454 192,990 11.6 Same Different 41 2332 310 89,588 5.1 Different Same 16 985 99 44,196 7.3 Different Different 10 749 78 28,861 4.9 Source: Lie et al., NewEngland Joumal ofMedicine (vol. 331, p. 3). of research. Several studies surfaced in the late 1970s and 1980s providing evidence that polluting and waste facilities are more likely to be located in low-income and minority neighborhoods. This information has prompted widespread political action, but the methodologies used in these stud- ies are now being challenged. President Clinton issued an executive order on environmental justice, and Con- gress is also focusing on this issue, debating several bills that would guarantee environ- mental equity. But some researchers are questioning whether such political atten- tion to the issue is warranted. Two recent studies cast doubt on the empirical evi- dence supporting the arguments of envi- ronmental justice advocates. One of the studies, conducted at the Center for the Study of American Business at Washington University, examined envi- ronmental justice policy. "Our study is an overview of the issue from a policy per- spective," said Christopher Boerner, who worked with Thomas Lambert on the study. Their findings indicate that further research should be conducted on the issue. Boerner and Lambert, research interns at the center, analyzed the studies that pro- vide evidence of environmental racism and detected several flaws in the research. These included inadequacies in how mi- nority communities were defined and in population densities. The researchers said that defining minority communities as areas where the percentage of nonwhite residents exceeds the percentage of minori- ties in the entire population means that a community could be considered minority even if the majority of its residents are white. They also pointed out that most of the studies are based on ZIP-code data, which are not necessarily accurate when examined on a smaller geographic unit. Boerner and Lambert also argued that environmental justice studies imply rather than state actual risks posed by polluting and waste facilities since there is a lack of significant scientific data linking negative health effects with proximity to polluting and waste facilities. And finally, the study says that the research on environmental justice fails to establish that discriminatory siting and permitting practices caused cur- rent environmental inequities. The studies identify current economic and race charac- teristics of communities located around industrial and waste facilities, but they do not consider community conditions when the facilities were sited. Boerner and Lambert's research sup- ports one of their major concerns in regard to environmental justice: that policymakers may be acting too quickly on a subject that needs further research and evaluation. Boerner and Lambert also examined alternative ways of approaching environ- mental justice as an issue, as opposed to current suggested solutions. Most of these current remedies include legislation that would prohibit or discourage construction of polluting and waste facilities in certain low-income and minority neighborhoods. Boerner and Lambert recommended that policymakers explore remedies such as compensation approaches, in which those Volume 102, Number 10, October 1994 817 M- who share the benefits of the undesirable facility provide compensation to those who host the facility. The compensation could be in the form of direct payment to indi- viduals in the community, or through investments to improve the community. Boerner and Lambert also detailed benefits that communities could reap by support- ing the construction of polluting and waste facilities in their areas. Among these are the economic benefits a facility could bring to a disadvantaged neighborhood, such as the creation of jobs. This type of compensa- tion approach would allow communities to be involved in the negotiating process. Early results of an ongoing empirical study at the University of Massachusetts also cast doubt on claims that hazardous waste facilities are more likely to be located in low-income and minority neighbor- hoods. The researchers, Douglas Anderton and Andy Anderson, both sociology pro- fessors, released a preliminary study reveal- ing that commercial, off-site treatment, storage, and disposal facilities (TSDFs) are actually more likely to be located in white, working-class, industrial neighborhoods. The two-year study examined census bureau tracts, groupings of 4,000 people, rather than ZIP-code data, which had been used in many of the previous studies. Tracts containing commercial hazardous waste TSDFs were compared to tracts without TSDFs. The researchers had expected to find results similar to previous studies on envi-. ronmental justice. "We were all pretty sur- prised, including the waste industry," Anderton said. "In retrospect we shouldn't have been, because what we found was that these facilities were not much different than any other industrial facilities." They found that the neighborhoods surrounding TSDFs were made up of white, working-class peo- ple, similar to most communities located around other types of industrial facilities. The study has been criticized by envi- ronmental justice advocates because the pre-1990 census tract data that was ana- lyzed excludes rural areas. They claim that if rural areas were assessed, the results could be different. However, Anderton says ongoing research involves 1990 census data that includes rural areas, and the results appear to be similar. Anderton and Anderson do admit that there are limitations to this study. For example, only commercial, off-site TSDFs were studied; Superfund sites, closed TSDFs, and on-site storage were excluded. They also cited other sources of environ- mental risk not studied that could unfairly burden minority and poor populations, including lead paint, soil contamination, and air pollution. "Some of the limitations of this research should be noted so the results of this particular study will not be used to undermine the general cause of environ- mental justice and equity," the authors said. They summarized the study by say- ing, "a great deal of work remains to be done." Anderton said they will continue to research the issue, and future studies will include Toxic Release Inventory data, Superfund sites, comparisons of public and private facilities, and analyses of how sites change over time. A Nice Cup of Tea Animal studies prove it. Folklore heralds it. And now the first large human study shows that green tea may be more than just an aromatic brew loved by millions of Asians who claim it purifies the body. A report published in the June issue of the Journal ofthe National Cancer Institute concluded that green tea is associated with a reduced rate of esophageal cancer in resi- dents of Shanghai. Studying 1552 healthy people and 902 others who had esophageal cancer, NCI researchers found the risk of contracting this cancer was reduced by 57% for men and 60% for women who didn't smoke or drink alcohol but who consumed lots of green tea. The researchers undertook the study because of compelling animal experiments that demonstrated green tea reduces the incidence of cancer and even the growth rate of tumors. Tea is among the most widely consumed beverages in the world, and a finding that 20% of that tea, an unfermented green, naturally protects against cancer would be good public health news. The report comes on the heels of a smattering of studies worldwide that sug- gest green tea has a myriad of benefits. In Japan, scientists have found that green tea lowers rates of cancers of the lung, skin, and stomach, and even reduces cholesterol. But no one is yet ready to say that green tea protects humans against any dis- ease, including cancer. The NCI's lead tea investigator, epidemiologist Joseph McLaughlin, cautions that no conclusions can yet be made. "This is the first study that shows an association, but as to whether green tea does definitively protect against esophageal cancer, I can't say." The problem is that although at least 100 studies have been published in the last two years, mostly in Asia, there are too few substantive case-control studies, says McLaughlin. The NCI survey is the largest to date, "but further investigations are defi- nitely needed," he said. Chung Yang, a biochemist and profes- sor at Rutgers University, said that recent reports of the effect of tea on human health have been "mixed; innately contro- versial." Yang said that one-fourth of the studies argue for a protective effect, one- fourth find tea increases health risks, and one-half of the studies found no correla- tion between consumption and disease. And although the Shanghai study "is inter- esting and encouraging," Yang said that it did not present any clear conclusions. On the other hand, animal data testing the effect of both black and green tea on cancer has shown a consistent benefit, said Yang, who has had a role in many of those t Reading tea leaves. Scientists studying green tea believe it may help ensure a healthier future. Reading tea leaves. Scientists studying green tea believe it may help ensure a healthier future. 818 Environmental Health Perspectives 
work_3oovbknv25gf5lwpplf6qjtxgm	----	Eric Brandstedt Non-ideal climate justice Article (Accepted version) (Refereed) Original citation: Brandstedt, Eric (2017) Non-ideal climate justice. Critical Review of International Social and Political Philosophy. pp. 1-14. ISSN 1369-8230 DOI: 10.1080/13698230.2017.1334439 © 2017 Informa UK Limited This version available at: http://eprints.lse.ac.uk/83178/ Available in LSE Research Online: July 2017 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://www.tandfonline.com/toc/fcri20/current http://www.tandfonline.com/toc/fcri20/current http://dx.doi.org/10.1080/13698230.2017.1334439 https://informa.com/ http://eprints.lse.ac.uk/83178/ 1 Review Article: Non-Ideal Climate Justice Eric Brandstedt Centre for Philosophy of Natural and Social Science (CPNSS), London School of Economics and Political Science, London, UK Postal address: CPNSS, Lakatos Building, London School of Economics and Political Science, Houghton Street, London, WC2A 2AE Email corresponding author: e.brandstedt@lse.ac.uk This is an accepted manuscript of an article published by Taylor & Francis in Critical Review of International Social and Political Philosophy on 01/06/17, available at http://www.tandfonline.com/doi/full/10.1080/13698230.2017.1334439 mailto:e.brandstedt@lse.ac.uk 2 Review Article: Non-Ideal Climate Justice Eric Brandstedt* Centre for Philosophy of Natural and Social Science (CPNSS), London School of Economics and Political Science, London, UK Based on three recently published books on climate justice, this article reviews the field of climate ethics in light of developments of international climate politics. The central problem addressed is how idealised normative theories can be relevant to the political process of negotiating a just distribution of the costs and benefits of mitigating climate change. I distinguish three possible responses, that is, three kinds of non-ideal theories of climate justice: focused on (1) the injustice of some agents not doing their part; (2) the policy process and aiming to be realistic; and (3) grievances related to the transition to a clean-energy economy. The methodological discussion underpinning each response is innovative and should be of interest more generally, even though it is still underdeveloped. The practical upshot, however, is unclear: even non-ideal climate justice may be too disconnected from the fast-moving and messy climate circus. Keywords: non-ideal theory, climate injustice, transitional climate justice, realistic climate justice, noncompliance, climate justice Henry Shue, Climate justice: vulnerability and protection. Oxford: Oxford University Press, 2014. Pp. 353. ISBN 978-0-19-871370-8. Clare Heyward and Dominic Roser, eds., Climate justice in a non-ideal world. Oxford: Oxford University Press, 2016. Pp. 323. ISBN 978-0-19-874404-7. Dominic Roser and Christian Seidel, Climate justice: an introduction. Abingdon, Oxon: Routledge, 2017. Pp. 229. ISBN13: 978-1-138-84527-5. I. Introduction Climate change already causes great economic losses, extreme hardship and premature death by inducing droughts, crop failures, and other detrimental effects. If nothing is done, it will get worse: extreme weather events will become more frequent, and in the worst-case scenario, present an existential threat. To mitigate such dangers the nation states of the world have accepted to ‘[hold] the increase in global average temperature to well below 2°C above pre- industrial levels and [to pursue] efforts to limit the temperature increase to 1.5°C above pre- industrial levels’, as part of the Paris Agreement (UNFCCC 2015, Art. 2.1). They have also 3 approved that meeting this goal requires net-zero emissions of greenhouse gases (GHGs) in the second half of this century. The aforementioned agreement is effectively a normative decision about the right balance of probability-weighted costs and benefits of measures to reduce emissions and those of other policy objectives, including how much to spend on adaptation to unmitigated climate change. It furthermore has normative implications in the sense that it raises questions about how to meet the target, and who should do what, and how fast it should be done. Transitioning to a clean-energy economy will entail both large costs and large non-climate benefits that should be fairly distributed. Ideally, normative theory should be relevant to answering such questions. A theory of climate justice, that is, a set of principles for distributing the goods and burdens of climate change mitigation, could function as an aspirational goal for the just transformation of the current fossil fuel economy. But in the current state of climate politics it is easy to despair – also about normative theory. Although the Paris Agreement may turn things around, climate politics has been and is still to a large extent in a deadlock. Many actors dig in their heels: refuse to act fairly, act as first mover, or even act at all. In this situation, it is unclear what impact philosophical analyses, however sophisticated, could have. What Brian Barry (2003, p. 498) wrote in a different context rings true here: ‘whether we make the demands of justice more or less stringent, it is going to demand more than is likely to get done in the foreseeable future’. In response to such worries, one may seek resort in what is known as ‘non-ideal theory’. Perhaps climate ethicists – that is, normative theorists working on climate change – have been too preoccupied with developing ideal theories, and should now focus their efforts on more practically relevant tasks. Such an idea can be distinguished in the collected works Climate Justice: Vulnerability and Protection (2014) that Henry Shue recently has put together. Similarly, a whole third of Dominic Roser and Christian Seidel’s just published Climate Justice: An Introduction (2017) is devoted to questions about how ethical ideals can and should be put to political practice. Moreover, as the title gives away, it is centrally featured in the anthology Climate Justice in a Non-Ideal World (2016) that Clare Heyward and Dominic Roser have edited. It has also been the topic of some journal articles: Hohl and Roser (2011), Maltais (2013, 2014), Caney (2005, 2016a), Gajevic Sayegh (2016). In this article, I will review the discussion of non-ideal climate justice with the primary aim of clarifying the central concepts therein. This is pertinent because the idea of non-ideal theory – and its opposite, ideal theory – is far from clear. I will thus begin by disambiguating it and highlighting the different ways it has been put to use in the discussion of climate justice. Thereby, I also hope to contribute to an assessment of the role of climate ethics in relation to climate politics. II. Disambiguating the Distinction I should first set aside a common usage of ‘non-ideal’ in discussions of climate justice. That is, when it is to signify the difficult nature of the problem; or, in the words of Aaron Maltais (2013, p. 598), the ‘extremely unfavourable conditions for effective climate politics’. Although what is referred to here must be accounted in the implementation and possibly even justification of 4 climate justice, the expression should not be confused with that of non-ideal theory. Also note that this expression can be confusing also after this clarification. Seeing that the dictionary definition of ‘non-ideal’ is ‘real’, all real-world conditions, however difficult or easy to overcome, are non-ideal in this sense. So, if one wants to isolate the specific character of climate politics, it is better to use another term, such as ‘difficult’, ‘problematic’, or perhaps ‘wicked’. From here on, I will reserve ‘non-ideal’ to name a particular kind of normative theory, and examine three different interpretations of it in the climate justice discussion, concerned with partial compliance (in section III), realism (in section IV), and transition (in section V), respectively. The tripartite structure comes from the three senses of the distinction between ideal and non-ideal theory that Laura Valentini (2012) has pointed out. That is, first, as a distinction between full and partial compliance with normative principles theorised.1 One can either work out normative principles on the assumption that all agents can and will comply to the extent that is possible and reasonable for them to do so, or on the assumption that there is or will be some noncompliance, that is, some agents not doing what they should. Non-ideal theory, in this sense, concerns how to respond to injustice. Secondly, it has been understood as a distinction between more utopian and more realistic normative theories. There is a question about to what extent various feasibility constraints or facts should be taken into account in normative theorising. Thirdly, it has been understood as the difference between focusing on the end-state of a perfectly just society, or on transitional concerns about improvements from the status quo. III. Dealing with Climate Injustice The partial compliance interpretation is probably the most common one among climate ethicists (see Caney 2005, 2016a, 2016b, Hohl and Roser 2011, Shue 2014, ch. 15, Roser and Seidel 2017, ch. 17). And not without reason: The apparent disregard for climate change that characterises world politics suggests that questions about how to deal with climate injustice are central. It seems less relevant to try and work out the precise details of principles of climate justice when agents today cannot plausibly be said to comply with any, however modest, requirements of justice. Furthermore, as Shue (2014, ch. 9) argues, the commonly discussed ideal principles perhaps anyhow converge on the same policy prescriptions. What is important to note, then, is that this raises new and distinct ethical considerations. Questions about how to deal with non-compliers cannot be swept aside as merely practical matters; they are of moral significance and in need of a separate, non-ideal theory of climate justice. As Simon Caney (2016a, p. 12) notes, the existence of noncompliance implies a shortfall of justice, which leads to the question: ‘Where should the shortfall lie?’ In order to determine this and to thus develop a non-ideal theory of climate justice, Caney (2016a) proposes a three-step methodology. The first step is to list possible responses to noncompliance. Note that these are often discussed in terms of the fairness of demanding of compliers to ‘take up the slack’ of non- compliers. One response is that it would be unfair because fairness determines invariable shares. But one may also argue that the existence of noncompliance does affect the ideally fair distribution of responsibility: either, as some state representatives less plausibly have claimed2, 5 by freeing compliers from responsibility (as it is conditional on some level of compliance), or by increasing responsibility, such that, compliers are now required to do even more (see e.g. Caney 2005, pp. 767-772). Sabine Hohl and Dominic Roser (2011) suggest another possibility: that although it would be unfair to demand of compliers to do more than their fair share, they are still so required because each additional burden3 shouldered makes it less likely that human rights are violated as a result of climate change. Roser and Seidel (2017, pp. 170-171) similarly concede the unfairness of compliers having to shoulder residual burdens, but argue that it must be balanced against a much worse injustice, namely that of allowing great harm being inflicted on third parties (i.e. the effects of climate change on future people). Caney (2016b) expands and develops the standard set of responses, adding, among other things, the possibility of relaxing moral side-constraints on action and of changing the incentive structure to increase future compliance. The second step responds to the need to evaluate and choose between the possible responses. Like many in the general discussion (e.g. Rawls 1999, p. 90; cf. Simmons 2010), Caney (2016a) argues that this must be met with ideal theory. Non-ideal theory presupposes ideal theory: the aim of the former is to approximate the latter. There are two things to note here. First, by implication, it is not enough to just assume (as I did above) that present agents have not complied with their responsibilities on most theories of justice; the evaluation of appropriate responses depends on a more specified ideal theory. The second thing is that, at least for Caney, there seems to be a strict partitioning between ideal and non-ideal theory. As far as the development of the latter goes, ideal principles are not revisable, but insensitive to facts and intuitions related to the application. Non-ideal theorising is thus not a matter of testing ideals against reality and possibly adjusting them accordingly. It is rather applying an independently justified theory of justice. The aim is to deal with climate injustices in ways conducive to the ultimate objective of an ideal theory. It is always the ideals prescribed that should inform the treatment of noncompliance: agents must ask themselves whether a particular course of action will be an ethically acceptable (as judged by the ideal), efficient and effective step towards the ideal. There can be no compromising of the ideal. In the third step of his account of non-ideal climate justice, Caney argues that one must attend to what is (politically) feasible for differently positioned agents, such as governments, firms, and individuals. Depending on the individual agent’s action space, different actions will be called for by the non-ideal theory of climate justice. The government of a well-positioned and affluent nation state will need to take actions different from those of a potential victim of climate change, such as an individual farmer in a developing country. The former may need to take on extra mitigation burdens or help finance an institutional framework to encourage future compliance (what Caney calls ‘Changing the Incentives Structure’). The latter may be permitted certain acts of civil disobedience, for instance, to take possession of certain low-carbon technology (‘Burden Shifting II’). These facts are relevant to determining what is an efficient and effective step towards the ideal. So although ultimate principles of justice are abstracted away from the facts on the ground, on Caney’s theory, their application is not. Thus, although all considered agents are required to comply with one and the same ideal theory, different agents may be required to do different things in response to noncompliance. How and why will their obligations differ? The answer is given by ideal theory.4 If it prescribes, say, that all agents should enjoy comparable opportunities to lead a good life, then those with fewer opportunities should shoulder fewer additional burdens, and vice versa. Residual 6 responsibility would, accordingly, be distributed in accordance with ability to take on additional burdens, subtracting what is needed to lead a good life. Given the opening for a plurality of different ideal theories, each with their distinct non-ideal auxiliaries, it is a striking fact that climate ethicists generally support some such cosmopolitan egalitarianism coupled with some such ability-based principle for residual responsibility.5 One can also challenge the premises of the take-up-the-slack-understanding of partial compliance theory. Caney’s non-ideal theory, in a way, does so by drawing on the multidimensional and dynamic character of real-life decisions.6 He rightly notes that the action space is variable, which enables positive or negative incentive effects: additional burdens carried by compliers can make it more or less likely that non-compliers will come to comply too. But it is even clearer with Aaron Maltais (2014), who argues that the problem is more fundamental than what has been assumed so far: there is a set of ‘non-ideal burdens’, actions that are costly in the short term but necessary to make an effective international response to climate change politically feasible, and it is these that must be distributed fairly. Such a distribution, Maltais (2014) argues, requires economically powerful states to show ‘climate leadership’ by taking unilateral actions, because they are well connected to the problem and have the capacity to effectuate structural change.7 Maltais is right in problematizing the non- ideal problem: the default framing certainly seems like a misrepresentation of a situation in which almost no one complies. But it should be noted that one thereby leaves the partial compliance interpretation of non-ideal theory. Maltais’s (2014) discussion of the normative ground of climate leadership is of a different kind. It is more akin to the second interpretation of non-ideal theory, to which I will now turn. IV. Realistic Climate Justice An ironic twist of the partial compliance interpretation is that its suggested treatment of noncompliance risks furthering even more noncompliance. If compliers are required to shoulder residual burdens of non-compliers, their motivation is tested, and, if stretched to its limit, the result could be yet more noncompliance, not only with the additional, residual burden, but also with respect to the initial, ideal burden. Of course, this need not happen, but one can think of cases more generally where it seems likely, such as when one of two younger siblings defaults on a joint enterprise and leaves the other to singlehandedly bear the full burden. It is anyhow surprising that non-ideal theory thus understood may be more demanding than ideal theory. Why would making the demands of justice more stringent make it more likely that they are met in the future, one is inclined to ask. Whether or not this has been the reason, some climate ethicists have used non-ideal climate justice in a radically different sense. The proposals considered in this section all, in different ways, challenge the standard modus operandi of climate ethics and call for a rapprochement to climate policy. Even if not all of these proposals are meant to replace existing ideal theories – they, at least, question standard methodological choices and defend alternative ways of doing climate ethics. The common core is realism: start with an accurate description of people, politics and policies and then evaluate and make normative proposals. The difficulty, of course, is doing that without too much of a concession to realpolitik. That is, to avoid reducing normative principles to political strategy, and being apologetic of the status quo. 7 Alexandre Gajevic Sayegh (2016) points out a first, less radical, way in which principles of climate justice should be realistic: they need to take into account the relevant empirical circumstances. Climate ethicists cannot – and do not – settle for only very abstract formulations of general principles of justice, such as the principle of equality. They take into account things like the currency of equality. An inattentive assumption of GHG emissions as the distribuendum to be equalised leads to implausible results, as some individuals reasonably need to emit more than others.8 Such facts should be taken into account, and so should of course the facts from climate science, and facts about how GHG emissions are measured, what incentive effects policies are likely to give rise to, etc. Only then can one hope to formulate principles of climate justice that are action guiding, as Gajevic Sayegh (2016) rightly points out. Indeed, otherwise one would not have formulated principles of climate justice at all. Nor should Roser’s (2016) proposal to ground climate protection in already existing motivation be controversial. His idea is ‘to choose the least unjust option within the bounds of motivation, however insufficient motivation may currently be’ (Roser 2016, p. 84). He further assumes that there are actions that provide better climate protection, yet are compatible with the limited motivation of present agents (he calls these ‘the motivation-compatible set of options’). These are actions (and policies) that are sometimes referred to as ‘no-regret options’ and ‘win-win options’ due to having co-benefits other than climate protection (e.g. cleaner air and fewer respiratory diseases) or directly saving costs (e.g. energy efficiency), but also ideas inspired by studies in psychology and behavioural economics, such as deferring the costs of climate action, ‘green nudges’, debiasing techniques, as well as a proposal to simplify the measurement of climate injustice: instead of a comprehensive evaluation one could focus only on the effects on world poverty and thus create a kind of ‘poverty index’ for climate action.9 Most of these proposals seem promising, which is hardly surprising given that they are designed to be just that.10 It is also easy to agree with Roser that: ‘Searching for, engaging in, and promoting such strategies is one of the weighty moral imperatives in an unjust world such as ours’ (2016, p. 93). Climate ethicists should continue to engage in the kind of interdisciplinary work cognisant of the relevant political facts with moral reflection that Roser (2016) has set the example for. Maltais (2016) and Light and Taraska (2016) advance two similar approaches. Maltais (2016) argues that climate ethicists should focus less on ‘fine-tuning general distributive principles’, and more on the normative dimension of reforms proposed to overcome the political inertia (e.g. reforming the multilateralism of UNFCCC). By evaluating these, one could advance ‘mediating strategies’, which, in a piecemeal manner, make the political situation more tractable. Similarly, Light and Taraska (2016) exemplifies policy-relevant climate ethics. They provide a rather detailed outline of the current pledge-and-review system of the Paris Agreement, and also characterise some of the domestic political obstacles to more ambitious commitments. On that basis, they propose a ‘workable option with significant potential’ (2016, p. 180): to phase out ‘short-lived climate pollutants’. As with some of Roser’s proposals, it is hard to disagree. But what should be more controversial is the new role for the climate ethicist implicitly assumed. It seems to be that of steering politicians out of the current impasse by making concrete and here and now politically feasible recommendations. This role, which is similar to the policy analyst, is no doubt important, though not clearly one that climate ethicists should exclusively adopt. A consideration against is that it gives up on the central discussion of background injustice, that is, scrutinising how a number of individually fair and freely entered policies and agreements could 8 produce an injustice on the aggregate level; a ‘compound injustice’, in the words of Shue (2014, pp. 36-41). Another criticism is that such a bottom-up approach is too narrowly focused, and because of that fails to address spillover effects between different domains of concern. Even so, I do believe that climate ethicists should consider adopting it on the condition that they, like Light and Taraska, have insight into the policy process. But, then, be aware that it does not make the work of traditional normative theory obsolete. Martin Kowarsch and Ottmar Edenhofer’s (2016) ‘pathway exploration approach’ is to some extent similar to the ones just considered: climate ethicists should evaluate policy pathways, much like the policy analyst. But their more specific proposal, that the ethical discussion should be integrated in the assessments of the Intergovernmental Panel on Climate Change (IPCC), suggests a different take on policy-relevant work. It must be squared with the mission statement of the IPCC, which among other things states that ‘[t]he work of the organization is therefore policy-relevant and yet policy-neutral, never policy-prescriptive’. If Kowarsch and Edenhofer’s proposal is simply to strengthen the evaluative assessments that are already a part of the IPCC11, then that is fine, but perhaps somewhat futile. But if it is to give the IPCC a more straightforward normative project, it is not compatible with the mission statement and likely to meet fierce resistance.12 Either way, if the ambition is to make climate ethics more practically relevant, it is more promising to follow Maltais, Light and Taraska in integrating it with relevant political practices, rather than with the scientific community. There is, however, one feature of Kowarsch and Edenhofer’s approach that I want to note: that the distinction between implementation and justification is blurred. They stress that ideal principles should be revised, if they cannot be implemented in any acceptable way. This may be an interesting contrast to some ideas discussed in the previous section.13 Darrel Moellendorf (2016) also presents a policy-relevant approach to climate ethics. Because climate change is such an urgent issue, he argues, we cannot wait for a fully specified ideal theory, nor fall back on non-ideal theory (as that presupposes ideal theory).14 The only normative guidance possible thus is that of the norms nation states already are committed to in virtue of having ratified UNFCCC: The goods and burdens of climate change abatement should be distributed according to these norms. The obvious problem with such a proposal however is that by being a result of international diplomacy, the norms of UNFCCC are abstract and rather non- committal. Take what is among the clearest norms prescribed in it (also Moellendorf’s example): ‘the right to sustainable development’ (1992, Art. 3.4/4.7). This has been understood as recognising the claim of ‘Non-Annex I Parties’ (among them China, India, Brazil) to develop and grow their economies, even if that amounts to additional GHG emissions.15 But what actions are prescribed by that recognition is unclear, and so is the application of the concept of needs (more on this below). Moellendorf devotes considerable space to justifying that the norms should be taken seriously, but should rather have worried about explicating and specifying them. V. Transitional Climate Justice Consider again the reluctance of nation states, local governments, business and other relevant actors to take appropriate climate measures. The situation may be one in which ‘there is no allocation of GHG emissions […] that is both morally tolerable and, at present, politically feasible as long as most economies are dependent for energy upon carbon-based fuels, that is, fossil 9 fuels’ (Shue 2014, p. 225). If fairly dealing with climate change clashes with entrenched interests in the fossil fuel economy, there may be no practicable alternative but to aim for a technological solution, to make renewables, like wind and solar, competitive.16 The transition to a clean- energy economy, however, also raises questions of justice. Shue (2014) makes a case for transitional climate justice. He notes that in the deadlocked political situation one must engage in incremental improvements on the status quo. This raises the question about what compromises are morally acceptable. A question that cannot be answered merely by pointing to ‘ultimate goals’: there is a need for ‘guidelines for transitions’ (Shue 2014, p. 58). Although such guidelines probably share some features of the principles for dealing with injustice (considered in section III), they nevertheless are of a different type. The ‘transition’ is not, or at least not directly, to the ultimate goals of ideal theory.17 Rather, it is to a clean-energy economy. The theoretical focus is on giving ground to and justification for grievances such a transition may bring about. In this connection, Shue (2014, pp. 133-141) distinguishes between different ranges normative standards may take. With respect to some ideals a relatively long transition period is allowed before it ought to be fully complied with, with respect to others a much shorter one. Then, there are ‘minimum standards’, which ‘must be satisfied as quickly as is humanly possible’ (Shue 2014, p. 134). In numerous chapters, Shue (2014) argues for two minimum standards to form the transitional principles of climate justice. To govern the intergenerational dimension, he proposes a ‘do no harm’ principle, which prescribes precautionary actions to prevent harm from climate change being inflicted on future generations, irrespective of the relative probability of the harm above a certain minimum likelihood threshold (Shue 2014, chs. 8, 11, 12, 14, 16). And for the international distribution, a basic needs principle (Shue 2014, chs. 2, 6, 9, 17). These minimum standards could be described as sufficientarian. They set thresholds under which no one should fall: no one should suffer damage as a result of climate change and no one’s basic needs should be left unmet as a result of actions to mitigate climate change. Shue defends their correctness as guidelines for transitions without invoking a complete theory of justice.18 But problems arise as one tries to specify what concrete climate policies they recommend. To apply Shue’s ‘do no harm’ principle it seems the current generation would need to just stop any GHG-generating activities: already the current stock of GHG is dangerous (cf. Shue 2014, p. 309, fn. 32). But why should we not take into account probabilities (even if they are hard to get at) and make comparisons to other policy objectives? It is at any rate not a minimum standard to recommend the prevention of any risk of harm. On the contrary, it is a very demanding one. The other principle is less controversial, but still problematic. In the international policy community, there is, at least in the abstract, consensus about something like the needs principle, expressed in the UNFCCC (1992, Art. 3.1). But the contentious issues arise in the specifications required to make the principle actionable. There are, for instance, different ways of satisfying basic needs: some based on fossil fuels, others on renewables. In order to evaluate such policy topics as climate finance, technology transfer and capacity-building, the basic needs principle must be more concretely specified. Then, more generally, the transition to a clean-energy economy raises normative questions about what means may be taken to that end (see Roser and Seidel 2017, chs. 18-20) that cannot be resolved merely by the needs principle. The challenge is to formulate transitional principles that are not too abstract and thus leave too much to the political process. 10 VI. Conclusion Having sorted out three different senses of non-ideal climate justice, it is natural to ask whether one or the other is more fruitful for future theorising.19 But to answer that I believe one needs a description of the political practices they are meant to regulate that is more detailed than what can be provided here (but see e.g. Keohane and Victor 2016). I can only note that as the Paris Agreement has entered into force, the structure of the main climate regime is now in place. As already noted, the overall ambition for the world at large and an approximate timetable for reaching it has been agreed on. Also other features of this institutional framework are likely to circumscribe the role and function of normative theories, although institutional reform and innovation of course are possible and probably necessary. The following normative question remains anyway: how to fairly distribute the burdens of a transition away from fossil fuels to sources of clean energy? The reviewed literature highlights some concerns important to consider in answering that. The discussion of noncompliance may seem hopelessly out of touch with the unfortunate state of climate politics, but still is a reminder that the action space is subject to change. What is politically infeasible today may be a central part of a political consensus tomorrow. That this is so raises questions about how such transitions come about. One suggestion is that it is by gradually realising an independently justified ideal theory. But as has been suggested above, such a view seems unrealistic, and furthermore could neglect normative complaints specific to the circumstances of this particular transition. It is more promising to take into account various feasibility constraints – psychological, institutional, and perhaps also those given by particular moral judgments – in formulating ideal principles. Elaborating on the reviewed literature, this can be done by formulating ideal principles specific to a particular context (e.g. the current climate regime) or conception of the agent in question (e.g. negotiating nation states), rather than assuming a more general scope. The challenge is to connect to the motivation of relevant actors so that normative principles guide their actions, without thereby uncritically accepting the status quo. Possibly, this can be addressed by providing a relatively thick description of what matters to the agents facing the distributive problem, the ones who must strike a fair deal. On common conceptions of fairness, such as ‘the original position’ (Rawls 1999), there is nothing that prevents a richer description of the person than what is standardly supplied in the literature on climate justice. Other factors than contribution, basic needs and ability to pay – such as co-benefits, competitiveness, and reputation – may partly determine what is a fair distribution of costs, even if they do not weigh equally. A final lesson from the above is that climate ethics better work towards the more concrete and particular. This could involve engaging in the kind of policy-relevant work that several of the theorists considered above suggest, but it could also extend to evaluating yet more concrete proposals, such as that of a feed-in tariff or an aviation tax. Beyond that, one can only conclude that the role of the climate ethicist in a just climate transition is still not clearly and convincingly articulated. 11 Note on contributor Eric Brandstedt is a Post-Doctoral Research Fellow at the Centre for Philosophy of Natural and Social Science (CPNSS), London School of Economics, working on a project about the relation between climate ethics and climate politics. His research interests are climate justice, the methodology of normative theorising, and intergenerational justice. He has recently been published in Canadian Journal of Philosophy, Moral Philosophy and Politics and Environmental Politics. Acknowledgments I am grateful to Fergus Green, Ylwa Sjölin Wirling, Joshua Wells, Susanne Burri, and Laura Valentini for comments, suggestions and general discussion of draft versions of this article. This work was generously supported by the Swedish Research Council under grant number 437- 2014-6692. Notes 1 This is also the received interpretation of John Rawls’s (1999, p. 216) original presentation of the distinction (see e.g. Simmons 2010). 2 For references see Hohl and Roser (2011, p. 478). The claim is implausible absent some moral justification for why the noncompliance of some should dissolve compliers’ obligations. Perhaps this could be provided (see Miller 2011), but as it stands it just collapses normative theory to a description of what agents are actually doing. 3 ‘Burden’ here is understood in an encompassing way, including not only emission reductions, but also measures to adapt to climate change, as well as actions to promote and facilitate future solutions. 4 Caney’s (2016a, p. 16) own ideal theory is a cosmopolitan egalitarianism, based on the capabilities framework. What matters fundamentally thus is that all present and future people have equal capabilities to lead a good life. The ultimate aim of any climate transition thus is to approximate such a fair distribution of life opportunities. 5 See the overview provided by Roser and Seidel (2017). The most notable deviations are some defending a ‘beneficiary pays principle’ and some defending so-called ‘grandfathering’. 6 See also Hohl and Roser (2011, pp. 495-497). 12 7 Shue (2014, ch. 15) similarly argues for climate leadership: In order to avoid paralysis, nation states are required to unilaterally do their fair share in mitigating climate change, even without promise that others will follow. 8 See Caney’s (2012) compelling critique. Perhaps partly as a result of such criticism, the assumption is less commonplace in climate ethics today than it used to be. 9 See also Light and Taraska (2016), who also discuss co-benefits of climate action, and Pickering (2016), who discusses strategic communication. 10 But see Shue 2014, p. 210, for some possible objections. 11 Several climate ethicists, such as John Broome, Lukas Meyer and Simon Caney, contributed to the latest IPCC (2014) report, in particular to WGIII, ch. 3 (‘Social, Economic, and Ethical Concepts and Methods’). 12 An example of that is Christian Seidel’s (2016) proposal of a ‘government house climate ethics’, situated in the IPCC. The idea is in effect for the IPCC to act as a philosopher king, issuing normative recommendations to the political process. But this seems unpromising: not only would it likely be procedurally unfair, but also counterproductive. 13 Whether or not it does so depends on how ethically acceptable application is understood. Traditional ideal theorists are also worried about that, as I described in section III. The difference, if any, is that whereas they have a fixed idea about what is ethically acceptable (namely, what their ideal theories prescribe), the alternative is to allow more particular judgments to play a justificatory role. To clarify: Kowarsch and Edenhofer (2016) do not make this point, but it is one way of making sense of their criticism against climate ethics. 14 His main argument against ideal theory is that it is impractical to fully specify such a theory (2016, pp. 107-110). But he does not say anything about what is wrong with those already specified ideal theories, such as the one from Caney considered above. In what sense, if any, are they impractical? 15 Note that since the UNFCCC was first drafted and signed in 1992, some of these countries have had strong economic development, with the result of higher standards of living but also higher GHG emission levels. In 2006, China surpassed the US as the world biggest absolute emitter of GHGs, yet it is still a Non-Annex I Party. 16 Note that also a technological solution, which likely involves quite some political steering, is bound to meet resistance from vested interests in the fossil fuel economy. The claim is just that it is more feasible than the alternative of just stop using fossil fuels. 17 My rendition of transitional theory thus differs from Valentini’s (2012), according to which it concerns what gradual steps of justice-improvement can be taken, possibly without consulting an end-state theory. 13 18 Amartya Sen (2009) presents a more explicit argument for why ideal theory (what he calls ‘the transcendental approach’) is neither necessary nor sufficient for such comparative judgments. 19 Note a more general conclusion suggested by the discussion above: the distinction is rather blurry. If there are different kinds of non-ideal theory, they are likely rather similar in structure and extension. 14 References Barry, B., 2003. Sustainability and intergenerational justice. In: A. Light and H. Rolston III, eds. Environmental ethics. An anthology. Malden, MA: Blackwell, 487-499. Caney, S., 2005. Cosmopolitan justice, responsibility, and global climate change. Leiden journal of international law, 18 (4), 747-775. Caney, S., 2012. Just emissions. Philosophy & public affairs, 40 (4), 255-300. Caney, S., 2016a. The struggle for climate justice in a nonideal world. Midwest studies in philosophy, 40 (1), 9–26. Caney, S., 2016b. Climate change and non-ideal theory: six ways of responding to non- compliance. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 21–42. Gajevic Sayegh, A., 2016. Justice in a non-ideal world: the case of climate change. Critical review of international social and political philosophy. Heyward, C. and Roser, D., eds., 2016. Climate justice in a non-ideal world. Oxford: Oxford University Press. Hohl, S. and Roser D., 2011. Stepping in for the polluters? Climate justice under partial compliance. Analyse & kritik, 33 (2), 477–500. Intergovernmental panel on climate change (IPCC). 2014. Fifth assessment report: working group III (Mitigation of climate change). Cambridge: Cambridge university press. Keohane, R. O. and Victor, D. G., 2016. Cooperation and discord in global climate policy. Nature climate change, 6, 570-575. Kowarsch, M. and Edenhofer, O., 2016. Principles of pathways? Improving the contribution of philosophical ethics to climate policy. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 296–317. Light, A. and Taraska G., 2016. A responsible path: enhancing action on short-lived climate pollutants. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 169–188. Maltais, A., 2013. Radically non-ideal climate politics and the obligation to at least vote green. Environmental values, 22 (5), 589–608. Maltais, A., 2014. Failing international climate politics and the fairness of going first. Political studies, 62 (3), 618-633. Maltais, A., 2016. A climate of disorder: what to do about the obstacles to effective climate politics. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 43–63. 15 Moellendorf, D., 2016. Taking UNFCCC norms seriously. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 104–121. Miller, D., 2011. Taking up the slack? Responsibility and justice in situations of partial compliance. In: C. Knight and Z. Stemplowska, eds. Responsibility and distributive justice. Oxford: Oxford university press, 230-245. Pickering, J., 2016. Moral language in climate politics. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 255–276. Rawls, J., 1999. A theory of justice, rev edn. Cambridge, MA: The Belknap Press of Harvard University Press, [1971] 1999. Roser, D., 2016. Reducing injustice within the bounds of motivation. In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 83–103. Roser, D. and Seidel, C., 2017. Climate justice: an introduction. Abingdon, Oxon: Routledge. Seidel, C. 2016. The cost of moralizing: how about a ‘government house climate ethics’? In: C. Heyward and D. Roser, eds. Climate justice in a non-ideal world. Oxford: Oxford university press, 277–295. Sen, A. 2009. The idea of justice. London: Allen lane/Penguin books. Shue, H., 2014. Climate justice: vulnerability and protection. Oxford: Oxford university Press. Simmons, J., 2010. Ideal and nonideal theory. Philosophy & public affairs, 38 (1), 5-36. UNFCCC, 1992. United Nations framework convention on climate change. http://unfccc.int/key_documents/the_convention/items/2853.php UNFCCC, 2015. Adoption of the Paris Agreement. Report No. FCCC/CP/2015/L.9/Rev.1, http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf Valentini, L., 2012. Ideal vs. non-ideal theory: a conceptual map. Philosophy compass 7 (9), 654– 664. http://unfccc.int/key_documents/the_convention/items/2853.php http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf New Journal Cover(accepted version refereed) Brandstedt_Non-Ideal Climate Justice_Author_2017 
work_3pkikopr4jdxtkqsv6iejlwqa4	----	josi_010.tex Journal of Social Issues, Vol. 62, No. 2, 2006, pp. 393--409 Doing Justice Intelligently in Civil Society John Braithwaite∗ Regulatory Institutions Network, Research School of Social Sciences, Australian National University Empirically, justice might be immanently holistic—with procedural, distributive, restorative, and social justice positively correlated. Restorative justice may be about creating spaces where the various imperfectly correlated facets of holistic justice might cohere. State institutions of justice (such as criminal courts) with deeply embedded traditions of narrowing the meaning of justice (to proportional punishment, for example) are less fertile soil for holistic justice than civil society. Beyond a move to holism and to civil society, the contributions to this special issue imply a move to what Sherman calls “emotionally intelligent justice.” This means nurturing the expression of vulnerable emotions and trying to avert the provocation of aggressive or stigmatizing emotions. Restorative Justice and Criminal Justice An impressive feature of this special issue is the way it draws upon data from societies as diverse as the United States, Australia, New Zealand, South Africa, and Bangladesh. This reflects the fact that restorative justice is now a global social movement for the transformation of legal justice. Its heartland is criminal law where 2000 saw all nations at the UN Congress on the Prevention of Crime and Treatment of Offenders vote to encourage the development of restorative justice programs. But restorative justice is proving an increasingly influential idea in programs for the care and protection of abused or neglected children, school bullying, business regulation, and international peacekeeping and peacemaking, among other domains (Roche, this issue). As Maxwell and Morris (this issue) explain, New Zealand research and development on the idea of family group conferences to respond to youth offenders was particularly important in the history ∗Correspondence concerning this article should be addressed to John Braithwaite, Regulatory Institutions Network, Research School of Social Sciences, Australian National University, ACT-0200, Australia [e-mail: John.Braithwaite@anu.edu.au]. 393 C© 2006 The Society for the Psychological Study of Social Issues 394 Braithwaite of restorative justice. Yet perhaps even more influential, in terms of how widely it has been copied in the northern hemisphere, has been New Zealand’s development of the conferencing idea for application to care and protection conferences with the families of abused or neglected children. In academic writing and social movement politics, as in the mass media, criminal justice always grabs more headlines than other forms of social regulation. A more principled reason, however, for the prominence given to criminal jus- tice in this special issue is that it is the criminal side of restorative justice innovation that has also attracted most research efforts, including some randomized controlled trials that have found substantial effects of restorative justice in reducing subse- quent reoffending, though only for some kinds of offenders (Sherman, 2003), and in reducing the suffering of victims of crime (Strang et al., this issue). In 2001, the Canadian Department of Justice was able to conduct a meta-analysis of no fewer than 32 evaluations of restorative justice with credible controls (Latimer, Dowden, & Muise, 2001). It found a modest though significant association of restorative justice with lower reoffending, higher perceptions of fairness by victims and of- fenders, and superior implementation of agreements/orders in restorative justice compared to control cases. A recent updated and refined Canadian government meta-analysis by Bonta, Jesseman, Rugge, and Cormier (2006) replicated this re- sult on reoffending, while reporting that the effect size was significantly greater for studies published from 1996. While almost all developed nations and many developing ones have restora- tive justice programs for youth offending today, they mostly remain marginal programs, very much in the shadow of the punitive paradigm that continues to dominate youth justice. This is a second reason why New Zealand has special significance. It is the only nation where restorative justice is the mainstream, pre- sumptive path for youth offending. As the Maxwell and Morris article shows, unless the offence is murder or manslaughter, youth offences always go either to a restorative police caution, a restorative diversion, a family group conference, or to court followed by a conference. They simply never go the court-punishment route bypassing any restorative process. While many other countries, such as Austria and Norway, have massive restorative justice programs, New Zealand remains dis- tinctive because restorative justice consistently trumps punitive courtroom justice as the presumptive path for youth. The impact has been substantial, cutting youth custodial sentences to around a third of what they had been prior to the restorative justice reform. As Maxwell and Morris point out, New Zealand is also interesting for the bicultural way its restorative justice programs have developed—influenced by Maori custom and law, eschewing other parts of that tradition, and incorporating notions such as victim rights from Western legal traditions. Restorative justice is not a nostalgic longing for a lost past, but practical experimentation into the future with learnings from both the past and the present. Doing Justice Intelligently in Civil Society 395 The New Zealand innovation of moving beyond one-on-one victim–offender mediation to a conference where family members and other supporters of both the offender and of the victim attend, as well as representatives of the state and/or the community, was a step with many implications. It makes the imbalance of power dynamics quite different, more muddied. Instead of a mediation between say a domineering male adult and a dominated female child, we have a conference for the same incident in which there may be adults and children, men and women, more and less domineering and articulate people on both sides. The Maxwell and Morris (1993) program of empirical research has been among the most important contributions on this question, showing that adult womens’ voices, particularly mothers’ voices, are greatly empowered by the conference process, though chil- dren’s voices are still rather more muted than advocates would like to see. Aral, Burris, and Shearing (2002) found in their analysis of 942 South African peace- making gatherings on the Zwelethemba model that is discussed by Roche (this issue) that 60% of the participants and 65% of the facilitators were women. The shame dynamics discussed in the latter part of this special issue are dif- ferent in a conference than in a dyadic mediation. Criminal offenders are often criminal offenders because they are good at shielding themselves from the conse- quences of the harm they have inflicted on others. Meeting the victim can make this harder. But still the shield that protects them from confronting the conse- quences of what they have done can continue to work as they sullenly stare at the ground while the victim recounts her suffering. We sometimes observe, how- ever, that if an offender’s mother begins to sob as she listens to the suffering of the victim, the offender will be more vulnerable to his mother’s pain and to her compassion and humanity. So the New Zealand innovation of the conference in my view brought more complex emotional dynamics that were more productive in engendering empathy. This connected to Maori ways of thinking about justice, which saw it as barbaric to allow an offender to stand alone accused of a crime. The offender should be surrounded by the support of his loved ones in the face of terrible allegations against him and they should stand ready to share the burden of the responsibility that falls to him. From the shame management perspective that we see in the articles by Harris, Ahmed/Braithwaite, and Morrison (this issue), the shame of letting one’s family down is easier to transcend. We can put it behind us in a ritual that emphatically demonstrates the forgiveness and support of our family. A conference places less of a burden on the facilitator than a dyadic medi- ation places on the mediator. When dominating or abusive speech breaks out in a conference, hopefully there will be someone else in the circle who will speak to curb the dominating speech. If the offender says something to a victim that leaves him bereft of hope, there will mostly be someone else in the circle who will offer the victim comfort and support. When in a dyadic mediation only the medi- ator is available to comfort the cruelly treated or to put down dominating speech, 396 Braithwaite the mediator risks being seen as on the side of the party on whose behalf she must intervene. More importantly, when the mediator is forced to intervene in this way, the empowerment philosophy of restorative justice—that power rests with the stakeholders rather than the professional—is put at risk. Dyadic mediations are therefore also more vulnerable to the incompetent mediator. In contrast, empow- ered conference participants often speak up to compensate for the incompetence of the worst facilitators. The conference ideology is to empower citizens as opposed to professionals. Neither incompetent citizens nor an incompetent facilitator need be fatal. So we do see, in our observational research, conferences that are con- ducted with massive incompetence on the part of the facilitator, combined with some equally clumsy interventions by some stakeholders, but conferences that are nevertheless successful because of competent interventions by other empowered citizen stakeholders. Finally, the existence of a wider plurality of voices in the conference circle than in a dyadic mediation means that there are better prospects for creative problem- solving ideas to emerge. There are also more people who can offer ideas and practical help for plural forms of support to ensure that agreements are honored. So if it is decided that an anger management program would be a good idea, but then someone points out that a court once before ordered anger management and the offender rarely turned up, a relative might offer to pick her up every Tuesday evening to take responsibility for ensuring that this time she attends regularly. Plurality of perspectives enriches the problem-solving part of the conference. This is not to say that there might not be certain ideas that could only be broached by an adjournment in which the two principal players in the idea talk about it one-on- one. Backstage, during coffee breaks, “private family time,” farewells in the car park after the conference, we observe all manner of dyadic and triadic healing to be given space to occur. A research agenda for the future of restorative justice is about how to enable moving back and forth between wider and narrower groups of stakeholders to maximize restoration of victims, offenders, and communities of relationships. An irony in the aftermath of the mainstreamed paradigm change of New Zealand conferencing is that today we probably see more innovation with radi- cally new modalities of restorative circles in North America, especially Canada, than in the Antipodes. In the United States where restorative justice is utterly at the margins of an overwhelmingly punitive system, there is no mainstream orthodoxy of restorative justice. Consequently, in the many hundreds (Bazemore & Schiff, 2005) of little community programs that are eked out of the punitive mainstream, creativity reigns. An example is the North Minneapolis African American Cir- cles. Here a series of circles are held for each offender. The first is an interview circle where the program is described in detail so the young offender can make a decision on whether to participate in the program. The crime itself is not dis- cussed in this circle. In one of them observed by Declan Roche, it was discovered Doing Justice Intelligently in Civil Society 397 that the young person was interested in basketball, so some men in the circle went to watch him play during the next week. The second circle discusses the harm caused by the crime and what might need to be done to put things right. Meanwhile a separate circle is being held to support the victim. The two circles can then decide to come together for a more conventional healing circle in which victims, offenders, and their supporters meet. After a plan of action is agreed in that circle, a follow-up circle is scheduled for some months into the future to mon- itor implementation. Finally, a celebration circle is held when the agreement is completed. This elaborate set of circles is of course very time consuming and is only affordable because almost all the work is put in by community volunteers. My point is that it is innovative, indeed pathbreaking, but that the innovation is incubated on the fringe of a U.S. justice system that leaves citizens in high crime communities such as North Minneapolis so dissatisfied with the way the sys- tem grinds down both offenders and victims that they become grass-roots justice innovators. Justice That Is Restorative A number of the contributions to this issue—in particular those of Roche, Pennell, Ahmed/Braithwaite, and Morrison—are about restorative justice for mostly non-criminal matters. Yet restorative justice has a core focus that is more specific than problem solving or conflict resolution of any kind. Its ultimate con- cern is some kind of injustice that must be dealt with. It might be confronted by conflict resolution, but equally by conflict prevention or problem solving, so long as what is at issue is injustice prevention or resolution of injustice. An in- justice does not need to be a criminal harm, it can be a tort or some other kind of civil wrong, it can be the injustice of a school bully who teases other children (Ahmed/Braithwaite, Morrison, this issue), of families who neglect their children (Pennell, this issue), of corporations who treat their workers unfairly, armies fight- ing a war, or local communities that fail to provide basic security for citizens (Roche, this issue). The justice idea has also become theoretically central for restorativists. This is why Tom Tyler’s (1990) work is so pivotal. Because restorativists talk justice, they should walk the talk—be just in the way they transact restorative justice. The implication of Tyler’s (this issue) work is that we are not likely to restore if we are not procedurally fair in the process of restoration. Barnes (1999) and Strang’s (2002) work based on random assignment of criminal cases (to court versus restorative justice conferences) suggests that restorative processes mostly are perceived by offenders and victims as more procedurally fair than courtroom justice. It may be that restorative justice is perceived as more procedurally fair because stakeholders are given a direct voice rather than having to channel their communication through the mouthpiece of a lawyer. Yet there seems more to it 398 Braithwaite than that. The Sherman et al. (1998), Barnes (1999), and Strang (2002) randomized control trial data also suggest that victims and offenders are more likely to perceive their rights as respected, that they are not discriminated against on the basis of the race, sex, age, etc., and various other facets of procedural justice beyond voice, when justice is transacted restoratively. It may be that justice is immanently holistic. This idea comes through in Bishop Tutu’s interpretation of the meaning of the Xhosa concept of ubuntu (see Roche, this issue). Ubuntu seems to incorporate not only restorative and procedural justice, but distributive justice (people with ubuntu “share what they have”) and relational justice (“We belong in a bundle of life”). I want to read Tutu (1999) as reading ubuntu as holistic justice. Rather than regarding legal justice and social justice as quite separate things with separate institutions being best equipped to deliver them (say the criminal justice system for legal justice, the welfare system for social justice) we regard legal and social justice as facets of justice conceived more holistically. It follows that we might want to craft institutions that pro- mote holistic justice making, as opposed to specializing in one kind of justice or another. While justice may be to some extent immanently holistic, it cannot be totally holistic; otherwise there would be no point in distinguishing procedural justice from the justice of outcomes. Procedural justice has been conceived in the literature as having a number of facets—including consistency, correctability, decision accu- racy, impartiality, ethicality, and process control (Lind & Tyler, 1988; Leventhal, 1980)—but these facets tend to be moderately highly intercorrelated. Second, we find that procedural and distributive justice tend to be positively correlated (Wenzel (2000, 2002) reporting correlations of 0.2–0.4). Hence, one of the arguments of restorative justice theorists has been that restorative justice, compared to existing justice practices, contributes to procedural justice, perceived fairness of outcomes (distributive justice) and indeed social justice (Braithwaite, 2002: pp. 54–130). Zehr (1995) argues that this holism in the conception of justice is to be found in the biblical notion of justice as shalom. The intuition about the immanent holism of the shalom way of thinking about justice is that a restorative justice process that seeks to empower stakeholders to repair the harm of an injustice will produce outcomes that are more distributively satisfying to stakeholders than a process that seeks to deliver equal punishments to equal wrongs. If we put the problem in the center of the circle, as opposed to putting the person in the center, we are more likely to come up with a solution to the problem that is perceived by the participants to deliver just distributive benefits. In contrast, if we put the person in the center of the circle and ask what is the right punishment according to some narrowly puni- tive theory of justice, it will turn out that the right punishment according to this theory will almost always be the wrong solution to the problem. Punitive justice can be integrated into holistic justice. Sometimes it is vital to protect community safety and to deliver distributive benefits to potential victims of injustice through Doing Justice Intelligently in Civil Society 399 deterrence. But punitive justice is not the main game of holistic justice. When lawyers make it the main game by insisting on consistent application of the prin- ciple of equal punishment for equal wrongs, holistic justice is placed beyond our reach. Heather Strang’s (2002) writing suggests that a narrower just deserts objective allows less leeway for a wider contract zone in which a win–win outcome can be crafted where both victims and offenders can be better off than they would have been without the encounter with the justice system. Strang’s (2002) evidence that win–win outcomes are more likely in restorative justice conferences, while win– lose and lose–lose victim–offender outcomes are more likely in courtroom justice, means restorative justice produces outcomes that are more generally conceived as distributively fair. Strang et al. (this issue) show that the way victims can improve their cir- cumstances through restorative justice are various. In their randomized controlled trials, victims in restorative justice processes are more than twice as likely to be afraid, to be angry, and less than half as likely to be sympathetic to offenders before compared to after restorative justice conferences. Referring also to Angel’s (2005) results on the impact of restorative justice in reducing post-traumatic stress, Strang et al. come up with the innovative theoretical interpretation that when restorative justice is a successful interaction ritual (Collins, 2004), it may give victims the emotional energy to gain cognitive mastery of their emotions, supplanting condi- tioned fear with empathy for an offender in dire life circumstances. Hence, another dimension of the potential holism of restorative justice is that the justice it theo- rizes in the Strang et al. contribution, is not simply justice for offenders, but for all stakeholders affected by the injustice, including its direct victims. Law that is seen as legitimate, and therefore as enabling self-regulation, also underwrites a more holistic justice than law that is seen as illegitimate and that must be externally coerced (Tyler, this issue). Such coerced, illegitimate law is a law of the authorities, rather than the law of a whole people, a living law of a civil society. We have seen that greater control of process in the hands of stakeholders, as opposed to justice professionals, might also explain why restorative justice is perceived as more procedurally fair. We can also intuit why justice may be imma- nently holistic by going in the opposite direction in ways suggested by the writings of Rawls (1971) and indeed most other writers on justice. An unjust procedure will be more open to domination by the person with the most power rather than the person with the best case and so will lead both to less fair outcomes and to social injustice by virtue of domination by the powerful. Relevant to this prospect of holistic justice through restorative institutions is the earlier claim about how restorative justice creates more cross-cutting and counterbalanced power imbal- ances than an encounter between a domineering male and a dominated woman, an adult and a child, a school bully and a nerd, a sophisticated corporate criminal and 400 Braithwaite an unsophisticated consumer, a fast-talking lawyer, and a slow-talking mentally disabled victim of crime. The fact that justice is not fully holistic—that procedural and distributive justice often conflict, for example—means that there is value and great intellectual interest in studying the tensions between different versions of justice. Tom Tyler’s (Tyler, 1990; Tyler & Blader, 2000; Tyler & Dawes, 1993; Tyler & Huo, 2001) work on why the justice of procedures matters more than the distributive justice of outcomes is a pre-eminent example. Restorative justice innovation takes a different tack, however. It says that because there appears to be an immanent holism of justice as ubuntu or shalom, why not search for institutional ideas that maximize the synergy of holistic justice? Then it theorizes restorative justice as that institutional idea. For example, there is the theory of the structure of a restorative justice conference in comparison to that of a court case. We invite to a court case those who can, through their testimony, inflict maximum damage to the other side. We invite to the conference those who can offer maximum support to their own side, be it the victim or the offender side. Such plurality forces us to see civil society rather than the state as the most important sites where justice making is done. This is one interpretation of why Declan Roche (2003, see also Roche, this issue) was able to demonstrate superior capabilities for some forms of restorative justice to hold police accountable to citizens affected by excessive use of force and unfair victimization, compared to courtrooms. Braithwaite (2002: pp. 17–24) has shown how Australian corporate crime enforcement that is restorative and responsive can foster a public discussion that transforms the regulation of an industry or create a tax system that is more struc- turally just in the burdens it imposes on super-rich individuals and corporations, in comparison to the poor (Braithwaite, 2005). Whether we are dealing with tax compliance, nursing home regulation, fraud by major insurance companies, or po- lice threats to the security of a poor community, structural change that conduces to social justice is an emergent possibility from restorative justice innovation. In routine practice, however, structural transformation is rarely a feature of restorative justice (Braithwaite, 2001; White, 2003). According to restorative justice theory, stigmatization of the person as a bad person causes defiance (Ahmed, 2001; Sherman, 1993), perceptions of procedural injustice, refusal to engage with reparative justice, and an increase in reoffending (that increases the amount of injustice in the world). Restorative Justice or Restorative Practices in Civil Society? Wachtel and McCold (2001) conceptualize a continuum of restorative prac- tices. Their most limited restorative intervention is an “affective statement”: “Mary, you sort of hurt my feelings when you did that.” Longer interventions are triggered by “affective questions”: “How do you think Jim felt when you did that?” These Doing Justice Intelligently in Civil Society 401 interventions can be transacted in workplaces, schools, and families on the run, when we encounter people in the corridor. As “affective statements,” they pick up Scheff’s (1994) idea of seeking to expose vulnerable emotions rather than ag- gressive emotions. The next level along Wachtel and McCold’s (2001) restorative practices continuum is a “small impromptu conference.” Informal police cautions can be adapted to this form; the police officer immediately takes a young offender detected of shoplifting home to her parents and all members of the family who are home sit down on the spot to discuss with the police officer what can be done to prevent this from happening again. Finally, the restorative practices continuum can be escalated to circles or conferences of varying composition, degrees of formality, and degrees of ritual significance. And as discussed earlier, larger circles might be broken out into one-on-one mediations in adjournments at various stages of more encompassing community gatherings. Obviously in social life we never have the time or resources for fully fledged restorative processes day by day. Nevertheless, we can learn why an affective question like “How do you think Jim felt when you did that?” is more restorative than yelling at or lecturing a child with: “You’re a naughty boy for doing that to Jim.” Wachtel and McCold favor restorative practices as a more general conceptual- ization of what they study and practice than restorative justice. For them restorative practices are about restoring relationships or social capital, where social capital is conceived as connections among people, trust, and mutual understanding that makes cooperative problem solving possible (Putnam, 2000). Because restoring connectedness is a step toward restoring justice in restorative justice theories, restorative practices should also be directly useful for building social capital in civil society. The disparate range of restorative practices to which Roche (this issue) refers—from Hawkins’ (2002) discussion of negotiated corporate regula- tion to Alternative Dispute Resolution—might be conceived as not fundamentally about justice much of the time. For example, the South African Truth and Reconcil- iation philosophy of ubuntu is described by Roche through the words of Desmond Tutu as “the restoration of broken relationships.” As Roche also points out, it is important to be culturally plural about how we think about the substance of what is being called restorative justice in this issue. Hence, if in a particular cultural con- text there is more resonance, identity affirmation, and pragmatic problem solving in conceiving of family group decision making as about relationships rather than justice, why not do so? This leads us in the next section to consider in more detail family group decision making in Pennell’s (this issue) work, which might equally be conceived as about promoting justice or as about strengthening relationships in civil society ( just as Morrison’s (this issue) work might be as well conceived in a frame of promoting connectedness as promoting justice). For the social scientist, there can be empirical resolution of these conceptual dilemmas. There is a well-developed literature on how to measure social capital arising from the work of Putnam (2000) 402 Braithwaite and others, just as there is a sophisticated literature on perceptual measures of justice from the scholarship of Tyler (this issue) and others. Models can be built where the size of social capital effects and justice effects are put in contest in explaining phenomena like the recovery of victims from trauma and the desistance of perpetrators. But it might be that the big story here is also more holistic. There can be no justice in a world without connectedness and empathy; at the same time, social capital cannot flourish in a world without an infrastructure of security around human relationships that can only be guaranteed by institutions of justice. This relational way of thinking about holistic justice (Burnside & Baker, 1994) is not new. As Strang et al. (this issue) point out, it was a major theme in the Scottish enlightenment, from David Hume’s writings about justice, which give prominence to empathy, to Adam Smith (1790) in his writing on sympathy. Recent neuroscience suggests that the Scottish Enlightenment thinkers may have been right in seeing empathy as inherent to being human, and as a guarantee of the justice that allows us to survive without killing one another. Singer et al. (2004) report that the ability to appreciate the agony of others lights up the same parts of the brain that we use to feel pain ourselves. Feeling our own pain and feeling the pain of others may be embedded in the same elements of a biology that makes humans fit for survival. In contexts of obligation, we have learnt to conceptualize feeling our own pain and feeling the pain of others as feeling unjustly treated and empathizing with injustice done to others. Strength-Based Strategies for Holistic Justice and Connectedness Pennell’s (this issue) essay can be read as showing that one of the things families do in family group conferences to deal with child protection issues is to formulate a care and protection plan that can tie together various strands of support and meaning in civil society networks. An aunt might agree to meet and talk with a child on a weekly basis to check that she has been getting regular cooked meals. If she finds the child is still going hungry, she might sign off an obligation under the plan to report this to a state social worker (binding a strand of family support to one of state control). The plan might import strands of meaning on commitments to the rights of children that come from state laws that have in turn been shaped by the United Nations children’s rights regime. The plan is a little knot that ties together in words that make local sense to the family these national and global strands of meaning. On this view, the family group conference is not guilty of privatizing public issues. Rather, it transmits public issues into private space. Moreover, the knot that ties the aunt into reporting to the state a failure in the conversational regulation of the child’s right to nourishment, is a tie that binds the family to make its private problem a public issue in circumstances of self-regulatory failure. The strengths-based philosophy of the kinds of family group decision making that Pennell has worked with (Burford & Pennell, 1998) is of particular interest Doing Justice Intelligently in Civil Society 403 from the perspective of nodal governance in civil society (Aral et al., 2002). It is about making nodes of local, mostly extended family, governance strong. Pennell points out that taking strengths seriously can be systematic in a facilitation process that asks families as a first step to list their strengths on pieces of paper. But the strengths-based philosophy can be insinuated rather than institutionalized into the family group decision-making process. The point is to educate participants to try to solve problems by building out from their existing strengths. This is the path to hope and pride in nodal capacity building. Burford and Pennell’s (1998) data indeed show that family pride is one of the outcomes better accomplished by these conferences compared to control cases. Private family time, where state professionals leave the room is also, in the Pennell view, a way of signifying where the strength lies to solve the problems at issue. Her North Carolina data show that private family time was not domi- nated by professionals but by family members. Private family time is also about empowerment of the family as a decision-making node in civil society. Belgian conferencing practice, which I recently had an opportunity to observe, may be better here in the way it institutionalizes an adjournment in the full conference for “private time” rather than “private family time.” This empowers participants to constitute whatever nodes of private plan formulation they want; these nodes might be narrower or wider than the boundaries of the family as they choose, or they might be both narrower (e.g., dyadic) and wider at different moments during the private time adjournment. As Pennell points out, the results are encouraging that this form of nodal governance reduces child maltreatment, holds families together in conditions of enhanced pride in their strengths, and reduces domestic violence. Returning to our wider conception of holism, this encourages the inference that family group decision making simultaneously and reciprocally nurtures justice and connectedness. Shame and Restorative Justice Why does Thomas Scheff (1994) seem to be on to something when he says that it is the open expression of the vulnerable emotions in restorative justice processes—such as shame, fear, and grief—as opposed to aggressive emotions— such as anger, rage, and self-righteous indignation—that promote sequences of remorse and forgiveness? Strang’s (2002) quantitative and qualitative data are con- sistent with a picture of anger begetting more anger, but of vulnerable emotions like remorse in one participant begetting vulnerable emotions like forgiveness in another. Restorative justice is about flipping vicious circles of hurt beget- ting hurt into virtuous circles of healing begetting healing. In this, Scheff finds shame to be a particularly important vulnerable emotion, quoting Helen Lynd’s (1958) clinical insight: “the very fact that shame is an isolating experience also 404 Braithwaite means that if one can find ways of sharing and communicating it, this communi- cation can bring about particular closeness with others.” He also makes the point that because the painful emotion of shame is a cross-cultural universal, it is the stuff of powerful intercultural communication when verbal communication fails us. This is true of forgiveness too: the way soldiers move each other with the offer of a hand or a cigarette, surrounded by their mutual slaughter, as they take their dead behind their trenches. Gestures of forgiveness by enemy soldiers show that forgiveness can heal without being preceded by remorse. I have seen this quite often in conferences—victim forgiveness extended to a lost young person who is a remorseless offender, and then the forgiveness elicits remorse. This is actually a reversal of Scheff’s core sequence of remorse eliciting forgiveness, while instan- tiating his more fundamental insight that laying open one vulnerable emotion can trigger reciprocation with another vulnerable emotion. Ahmed and Braithwaite’s (this issue) AMOS analyses cast the most rigorous light to date on the partial va- lidity of both the core remorse to forgiveness (and reconciliation) sequence and the reverse forgiveness and reconciliation to remorse sequence. Scheff’s big insight is Humean—when we see others express painful as opposed to aggressive emotions, we see them as human beings like ourselves. Empathy and compassion thus pave the path to healing. Stigmatization blocks that path. Here there is an interesting connection with Harris’s (this issue) data. He reports a strong positive correlation between his measure of shame–guilt by of- fenders during conferences and empathy on their part. Shame–guilt was also neg- atively correlated with anger/hostility, while “unresolved shame” was positively correlated with anger/hostility. Harris argues that reintegrative shaming may be important for reducing crime not because it results in shame “but because it pro- vides a mechanism that assists offenders to manage their feeling of shame in more constructive ways.” This is consistent with Scheff’s conclusion that when someone has been arrested by the police, the situation is already dripping with shame; the question is whether the shame will be covered over or acknowledged and dealt with. Ahmed/Braithwaite and Morrison take this shame management perspective much further in their contributions to the special issue. We have learnt from experience with restorative justice that shame and pride management skills are not so rare among ordinary members of the community and that the questions observed to routinely succeed in eliciting vulnerable rather than aggressive emotions are quite simple. “How did you feel when you realized your purse was gone?” “How did you feel when the police took you home to tell mum and dad what had happened?” Or when the victim explains how she was hurt by the crime, asking the offender: “What do you think about what happened to me?” A major debate among restorative justice administrators is whether facilitators should be trained to follow a script to ensure that these are the kinds of questions that are always asked, as opposed to questions that might be more likely to elicit Doing Justice Intelligently in Civil Society 405 aggressive emotions. Another reason some defend script-based training is to pre- vent facilitators descending into lecturing of wrongdoers, especially if they are police or youth justice officials who must unlearn lifetime habits of telling young offenders what to do. Of course the argument against scripting is that it inhibits flexibility, responsiveness to cultural difference, and the greater authenticity of more spontaneous forms of communication such as humor, which can be such an asset in tense encounters for those who have the gift to use it without offense. We need to be more evidence-based in this debate, as in many others within restora- tive practice. Randomized controlled trials with assignment to scripted versus unscripted facilitation are needed. In advance of that, we need more systematic naturalistic research that correlates different forms of facilitator questions with responses coded as expressions of aggressive and vulnerable emotion. Pennell’s (this issue) data show that at a more general level, preparation for conferences is important, poor preparation being associated with subsequent ma- nipulation as opposed to empowerment. It may be that Pennell’s valoration of greeting (Young, 1995) at the opening of care and protection conferences—for ex- ample, by prayer, sharing children’s photographs—is another example of a tech- nology of deliberation that conduces to the expression of vulnerable emotions. Again, however, this is an example of an eminently researchable hypothesis that is yet to be tested. Harris’s contribution to this issue shows that criminal offenders randomly assigned to restorative justice conferences perceived others as more disapproving of what they had done, more reintegrative and less stigmatizing than offenders randomly assigned to a criminal trial. Harris finds different kinds of shame-related emotions to be elicited by criminal trials versus conferences. Trials elicit more unresolved shame and more embarrassment exposure, while restorative justice conferences elicit more shame–guilt. Ahmed, Braithwaite, and Morrison (this issue), on data sets from Bangladesh and Australia respectively, both show that shame displacement (blaming others and directing anger toward them) is a shame management strategy that predicts bullying. In contrast, in both studies shame acknowledgment (accepting that wrong was done and moving on from remorse to repair) is a shame management style associated with lower levels of bullying. Replicating another study by Ahmed (2001), Morrison finds that students who were neither bullies nor victims of bul- lying managed shame through shame acknowledgment (taking responsibility and making amends) and were less likely to resort to shame displacement (blaming others and externalizing anger). Picking up concepts from Tyler’s work, Morri- son also found that non-bully non-victims also reported higher levels of pride in membership of the school community and respect within the school. In an interesting way, these shame and pride management strategies of the non-bully non-victims are contrasted with the rather different shame and pride management pathologies of both bullies and victims of bullying. Bullies displace 406 Braithwaite shame into anger without acknowledging shame. Sadly, children who are both bullies and victims end up with the shame management pathologies of both. Bully– victims both attack others and attack themselves (Nathanson, 1997). Morrison points out that we see this with the horrific cases of children who have been bullied at school and respond by perpetrating massacres at the school and then suicide. An important contribution Morrison makes is bringing to bear an integration of Scheff’s theory of unacknowledged shame with reintegrative shaming theory and Tyler’s procedural justice theory in accounting for these phenomena. Morrison has an interesting analysis of victims of bullying as caught up in cycles of persistent shame. On Scheff’s (1994) account, they suffer the form of alienation called engulfment. This means an overemphasis on the “we” of who we are, an “I” engulfed by a “we” to which we feel overly beholden. Morrison’s interpretation of bullies as characterized by the form of alienation Scheff calls isolation—excessive emphasis of the “I” and rejection of the “we”—seems less persuasive. It may be that bullies are alienated from the wider culture of the school yet engulfed by a delinquent subculture. There is some empirical support for Cohen’s (1955) theory of delinquency as a rejection of ones rejectors (Braithwaite, 1989: pp. 21–27). Children who fail in the status system of the school have a status problem that they solve collectively with other children who have been similarly rejected by the status system of the school. They solve it collectively by constituting a delinquent subculture with values that invert those of the school—for example toughness instead of control of aggression, contempt for property instead of respect for property. By inverting the school’s values, rejected children collectively create a subculture that interprets them as a success rather than a failure. On this account, violent children follow a trajectory of isolation from the “we” of the school, then engulfment by the “we” of the anti-school gang. Beyond the effects of shame acknowledgement and shame displacement in re- ducing and increasing bullying, respectively, both forgiveness and reconciliation (restoring relationships with mutual respect) in parental child-rearing practices predicted lower levels of bullying. Notwithstanding this impact of forgiveness and reconciliation on subsequent bullying, there is a strong case for placing forgiveness and reconciliation as secondary objectives of restorative justice. Forgiveness, and more broadly, reconciling, is a gift. If we promote restorative justice programs as having the objective of eliciting forgiveness, we may give victims of bullying and other wrongs the feeling that they are expected to forgive. Any such expec- tation undermines the power of forgiveness because it strips it of the generosity and compassionate spontaneity that gives forgiveness its special meaning as a gift from the wronged to the wrongdoer. We can apply the same analysis to apology. Mandating apology denudes its power as a gift from the person who places them- selves as wrongdoer by apologizing to the wronged. If we apologize because we are required to, the apology ceases to be a manifestation of a vulnerable emotion. We distrust a coerced apology as insincere, as papering over a deeper truth of Doing Justice Intelligently in Civil Society 407 aggressive emotion. In practice, restorative justice programs that do not set out with the direct objective of eliciting forgiveness and apology roughly double the prospects of both and also quadruple prospects that apologies which are given will be perceived as sincere by victims (Sherman et al., 1998; Strang, 2002, Strang et al., this issue). As with shame and remorse as manifestations of vulnerable emotion, so with forgiveness, reconciliation, and apology: if we directly seek to maximize them, we may destroy their power for good. Restorative justice institu- tions pursue open expression of vulnerable emotion indirectly by creating spaces with a minimum of domination and a maximum of support from loved ones. This is what encourages people to take risks with articulating their vulnerability. Conclusion It is early days in research and development on restorative justice. Research has lagged behind theory and theory behind practice. Even so, Strang and Sherman’s (2005) Campbell Collaboration Review of face to face restorative justice refers to 15 randomized controlled trials, of which only 7 are complete. The Latimer et al. (2001) meta-analysis, which included both experiments and non-experimental studies with satisfactory control groups was able to include 32 studies. Moreover, the explosion of experimental and non-experimental research takes off from a pre- existing foundation of multivariate research showing, as Tyler (this issue) points out, that deterrence effects are consistently small in magnitude, that perceived pro- cedural justice effects are stronger, that extrinsic motivations “crowd out” intrinsic motivations to do justice, that punitive parenting is counterproductive. Restorative justice program development has in some important senses aimed at designing justice innovations that apply this research to finding an alternative to regulatory institutions based on Benthamite rational actor presumptions. Sherman (2003) conceives this challenge (see Morrison, this issue) as devel- oping a new paradigm of “emotionally intelligent justice.” The articles in this issue all make important contributions to thinking about justice in terms of nurturing emotional intelligence. They also contribute to seeing conflicts over injustice as opportunities to empower people to learn how to learn in civil society. We live in a world where if justice is to be an accomplishment of our civilization, it will be more an accomplishment of civil society than the state. Certainly, the evidence now seems clear that top-down punitive state justice has limited reach and efficacy. In juxtaposition, all we can say of restorative justice is that it shows promise and, as this special issue illustrates, is engendering a kaleidoscope of institutional in- novation. There is a long way to go before we can be evidence-based about which of the colors in the restorative justice rainbow really do enrich justice. There is even further to travel before we discover whether those colors can come together to form a bright white light to lead us from the darkness of the Guantanamo Bays and the school exclusion policies of this world. 408 Braithwaite References Ahmed, E. (2001). Shame management: Regulating bullying. In E. Ahmed, N. Harris, J. Braithwaite, & V. Braithwaite (Eds.), Shame management through reintegration (pp. 211–314). Cambridge, UK: Cambridge University Press. Angel, C. (2005). Crime victims meet their offenders: Testing the impact of restorative justice confer- ences on victims’ post-traumatic stress symptoms. PhD dissertation, University of Pennsylvania. Aral, S., Burris, S., & Shearing, C. (2002). Health and the governance of security: A tale of two systems. The Journal of Law, Medicine & Ethics, 304, 632–643. Barnes, G. (1999). Procedural justice in two contexts: Testing the fairness of diversionary conferenc- ing for intoxicated drivers. Unpublished PhD dissertation, Institute of Criminal Justice and Criminology, University of Maryland. Bazemore, G., & Schiff, M. (2005). Juvenile justice reform and restorative justice. Portland, OR: Willan Publishing. Bonta, J., Jesseman, R., Rugge, T., & Cormier, R. (2006). Restorative justice and recidivism: Promises made, promises kept? In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective. London: Routledge. Braithwaite, J. (1989). Crime, shame and reintegration. Melbourne: Cambridge University Press. Braithwaite, J. (2001). Restorative justice and social justice. Saskatchewan Law Review, 63, 185– 194. Braithwaite, J. (2002). Restorative justice and responsive regulation. New York: Oxford University Press. Braithwaite, J. (2005). Markets in vice, markets in virtue. New York: Oxford Univeristy Press. Burford, G., & Pennell, J. (1998). Family group decision making project: Outcome report Volume I. St. John’s: Memorial University, Newfoundland. Burnside, J., & Baker, N. (1994). Relational justice: Repairing the breach. Winchester: Waterside Press. Cohen, A. K. (1955). Delinquent boys: The culture of the gang. Glencoe, IL: Free Press. Collins, R. (2004). Interaction ritual chains. Princeton, NJ: Princeton University Press. Hawkins, K. (2002). Law as last resort: Prosecution decision-making in a regulatory agency. Oxford, UK: Oxford University Press. Latimer, J., Dowden, C., & Muise, D. (2001). The effectiveness of restorative justice practices: A meta-analysis. Ottawa: Department of Justice, Canada. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. Gergen, M. Greenberg, & R. Willis (Eds.), Social exchanges: Advances in theory and research (pp. 27–55). New York: Plenum. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum Press. Lynd, H. (1958). On shame and the search for identity. New York: Harcourt. Maxwell, G. M., & Morris, A. (1993). Family, victims and culture: Youth justice in New Zealand. New Zealand: Social Policy Agency and Institute of Criminology, Victoria University of Wellington. Nathanson, D. L. (1997). Affect theory and the compass of shame. In M. R. Lansky (Ed.), The widening scope of shame. Hillsdale, NJ: The Analytic Press. Putnam, R. (2000). Bowling alone: The collapse and revival of American community. New York: Simon Schuster. Rawls, J. (1971). A theory of justice. Oxford, UK: Oxford University Press. Roche, D. (2003). Accountability in restorative justice. Oxford, UK: Oxford University Press. Scheff, T. J. (1994). Bloody revenge: Emotions, nationalism and war. Boulder, CO: Westview Press. Sherman, L. W. (1993). Defiance, deterrence and irrelevance: A theory of the criminal sanction. Journal of Research in Crime and Delinquency, 30, 445–473. Sherman, L. W. (2003). Reason for emotion: Reinventing justice with theories, innovations, and re- search. The American Society of Criminology, 2002 Presidential Address. Criminology, 41, 1–38. Sherman, L. W., Strang, H., Barnes, G., Braithwaite, J., Inkpen, N., & Teh, M. M. (1998). Experiments in restorative policing: A progress report on the Canberra Reintegrative Shaming Experiments Doing Justice Intelligently in Civil Society 409 (RISE). Canberra: Law Program, Research School of Social Sciences, Australian National University. Singer, T., Seymour, B., O’Doherty, J., Kaube, H., Dolan, R.J., & Forth, C. D. (2004). Empathy for pain involves the affective but not sensory components of pain. Science, 303, 1157– 1162. Smith, A. (1790). The theory of the moral sentiments. London: A. Millar. Strang, H. (2002). Victim participation in a restorative justice process. New York: Oxford University Press. Strang, H., & Sherman, L. W. (2005). Effects of face-to-face restorative justice for personal victim crimes. Campbell Collaboration Review. Available at www.campbellcollaboration.org. Tutu, D. (1999). No future without forgiveness. London: Rider. Tyler, T. (1990). Why people obey the law. New Haven, CT: Yale University Press. Tyler, T., & Blader, S. (2000). Cooperation in groups: Procedural justice, social identity, and behavioral engagement. Philadelphia, PA: Psychology Press. Tyler, T., & Dawes, R. M. (1993). Fairness in groups: Comparing the self-interest and social identity perspectives. In B. A. Mellers & J. Baron (Eds.), Psychological perspectives on justice: Theory and applications. Cambridge, UK: Cambridge University Press. Tyler, T., & Huo, Y. J. (2001). Trust and the rule of law: A law-abidingness model of social control. New York: Russel Sage. Wachtel, T., & McCold, P. (2001). Restorative justice in everyday life. In H. Strang & J. Braithwaite (Eds.), Restorative justice and civil society. Melbourne: Cambridge University Press. Wenzel, M. (2000). Justice and identity: The significance of inclusion for perceptions of entitlement and the justice motive. Personality and Social Psychology Bulletin, 26, 157–176. Wenzel, M. (2002). The impact of outcome orientation and justice concerns on tax compliance: The role of taxpayers’ identity. Journal of Applied Psychology, 87, 629–645. White, R. (2003). Communities, conferences and restorative social justice. Criminal Justice, 2, 139– 160. Young, I. (1995). Communication and the other: Beyond deliberative democracy. In M. Wilson & A. Yeatman (Eds.), Justice and identity: Antipodean practices. Wellington, New Zealand: Bridget Williams Books. Zehr, H. (1995). Changing lenses: A new focus for criminal justice. Scottdale, PA: Herald Press. JOHN BRAITHWAITE is Professor and Australian Research Council Federa- tion Fellow in the Regulatory Institutions Network at the Australian National University. Among his recent publications are Markets in Vice, Markets in Virtue (2005), Restorative Justice and Responsive Regulation (2002), and Shame Man- agement through Reintegration (2001). 
work_3pkxo2l5nnco7ohssf2635rqem	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221729108 Params is empty 221729108 exception Params is empty 2021/04/06-03:20:25 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221729108 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:25 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_3turivdnmvggjb2msf6xw74azy	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_3wezn5cw7vam3oz6g7vj3pu67m	----	correspondence "JUSTICE AND THE INTERNATIONAL COURT" In a letter to the editor, Charles Burton Marshall wrote that, "Like many comments critical of the judgment of the International Court of justice in the South West Africa case, worldview's editorial [July- August] seems to me to confuse law in the sense of procedural rectitude applied in litigation and law as policy enacted into legislation." Mr. Marslwdl elab- orated his own views in a letter to the Honorable E. Rose Adair. What follows is the text of that letter as it was introduced into the O'Hara subcommittee hearing record. Another, and differing, opinion is suggested bij Ernest A. Gross, recently chief counsel to Liberia and Ethiopia in the case before the International Court. His article, "The South Africa Case: What Happened," appears in Foreign Affairs, October 1966. Arlington, Va. Dear Mr. Adair: This letter follows on our conversation about the judgment of the International Court of Justice con- cluding the long and complex litigation in the South West Africa case, the outcome of which seemed to come as a surprise to a great many, including, ac- cording to his own acknowledgement, the Secretary of State. I am astonished by the evidence of astonishment. Prompted by professional curiosity and free of con- scious preconceptions, I had examined the labyrin- thine issues as developed in a dozen printed volumes of varying bulk and a mass of transcribed oral argu- ment put forth by the litigants. Whatever facet I examined closely, the weight of the argument seemed to me clearly on the respondent's—that is, South Africa's—side. Accordingly, I rather expected South Africa to prevail finally. Foresight in such a matter, however, requires tak- ing count of judges as well as taking account of. legal points. On this basis, the respondent seemed to me definitely the favorite and the petitioning side, Ethi- opia and Liberia, a palpable long shot. Let me ex- plain. The potential participants in the decision included fifteen regular members-of the Court and two ad hoc judges named by the respective sides—seventeen in all. One regular judge stood aside, presumably in appropriate regard for the fact of having once been designated ad hoc judge for the petitioners before election as a regular judge. Another was removed by illness, and a third by death. Thus the residual num- ber nearing the decisive stage was fourteen. .That even number presented a possibility of a We, in which event, under the law as laid down in the Court's statute, it would fall to the presiding fudge to resolve the issue by casting a second vote. Of the residual fourteen at this stage, four judges were participating in the case for the first time, whereas ten had participated at a preliminary, though substantive, stage four years ago, when the Court had divided eight to seven on whether the petition- ers had standing as such and whether their petition presented a justiciable issue. Six of the seven then dissenting were among the ten. Their number in- cluded the presiding judge, authorized to break a tie. Only four of the eight prevailing in the prelimi- nary stage remained. If all six previous dissentients abided by their earlier views, the addition of only one from among the four judges newly participating would produce the tie that would in effect constitute a shifted major- ity. By the same token, all four of the new particip- ants must align with the four remnant from the earlier majority to produce again a majority tfor the petitioners. Superficially considered, the prospect presented a 15-to-l probability in favor of South Africa. One must, however, look deeper than the superficial data. What was the probability of a shift among the six previous dissenters? To judge by the unequivocal- ness of the positions articulated on the record, the solid legal analysis reflected in diem, and their con- tinuing central bearing on the case, such a probabil- ity seemed negligible. What was the probability that one, just one, of the new participants would align himself with them? Getting down to a particular, why assume that Judge Cros of France would not reflect views akin to those ably articulated in 1962 by his predecessor also of France, Judge Basdevant? I could think of no reason so to assume. Tims, under closer analysis, the 15-to-l odds seemed conservative indeed I come back to the Secretary of State's acknowl- edged surprise. Surely no one would criticize so over- pressed an official for not having delved for himself into such details. In such matters he must rely on advices from below. What interests me here, then, is the quality of bureaucratically generated informa- tion. October 1966 7 On a half dozen or so occasions within a span of a few weeks preceding the decision, the South West Africa case came up in conversation with one person or another well up in the State Department. Invari- ably I was told something to the effect mat it looked bad for South Africa or was asked how else conceiv- ably could the Court rule? When I pressed for de- tails to support that outlook, I was told something to the effect that such was the overwhelming consensus among those close to the matter. In a context like that, consensus is very likely to be synonymous with gossip. Solid information is,all too likely to be a shaky, wishful guess, built up to apparent authority by being circulated through departmental channels as through an induction coil. Such was probably the case here. Very often in a bureaucracy the least re- liable index to what is what is what comes from the office most concerned. In testifying on May 17 before the subcommittee on Africa, I purposely refrained from venturing a prediction of the outcome, regarding it as insolent for an outsider to anticipate in public regarding such matters. I did utter a caution against an idea, urged by earlier witnesses, calling for the United States ostentatiously to get poised to set in motion plans based on a guessed-at outcome, which seemed so unlikely to materialize. Such conduct could only put the Government in a posture of attempting to prej- udice an issue sub judice, a foolish posture at best. Fortunately, our magistrates avoided that gau- cherie. Behind the scenes, an amusing thing oc- curred, however, and some of my State Department friends, later shared the laugh with me. On the Fri- day preceding the decision, the State Department did send to die government at Pretoria a formal note, declaring the United States' devout concern for the rule of law in international relations and serving solemn notice of an intent to spare no ef- fort to enforce the forthcoming decision. What is comical about this painstaking flaunting of unexcep- tional precepts is the reflection of misguided antici- pation. Obviously, initiative still outruns urbanity in our diplomacy, There is a need to ponder Talley- rand's sagacity—"above all, not too much zeal." The South African authorities probably could not imagine a great power's resorting to such a step without conclusive advance knowledge of the out- come. Accordingly, the note's arrival may well have shaken momentarily their confidence—which my wife and I found so secure and ernphatic when we pri- vately discussed the case with some of them last April—of a judgment favorable to South Africa. Whatever the misgivings temporarily incurred, it must be regarded by them now as clearly to the good, from South Africa's standpoint, to have in hand an unequivocal expression from the U.S. Gov- ernment pledging to honor the decision and calling it good, sight unseen. Indeed, the decision is good, and I say this from an American standpoint. It serves to dissipate some of the obfuscation surrounding the broader South African question. It removes a main promise relied on by those who have hoped and striven to inveigle the United States obliquely into an improvident in- terposition in South Africa's internal affairs. It di- minishes substantially the chance of involving the United States in needless conflict at a time when— Heaven knows!—it is already experiencing its por- tion of travail elsewhere. I say that the decision re- duces the probability of yet another outbreak of in- ternational violence—notwithstanding that some who had looked expectantly to the International Court for a decision that they could invoke as a warrant for precipitating violence now assert, in the wake of the decision issued, that the outcome leaves them no alternative to violence. Such talk coming from spokesmen for some of the other African states is discountable as rhetoric. The South African Republic should be able to cope with anything its piqued northward neighbors might try, as those neighbors are amply aware. To any importunities to fetch chestnuts from the fire for them, our Government is now in position explicitly to say: the chestnuts are not ours. Our high policy- makers no longer need to feel pressed and reproached by invocations of a shadowy legal obligation in such matters. The outcome, as The Washington Post prop- erly observed in the sole fairly cogent editorial I saw on the matter, puts the South Africa question squarely in the political field where, if anywhere, it belongs. Our policy-makers would not bo in po- sition to invoke any exculpatory abstractions con- cerning fealty to the rule of law if they should here- after precipitate us into a blunder in that connec- tion. It is scarcely imaginable now—indeed it never was—that our magistrates would indulge in such im- prudence The sooner this is quietly made clear across Africa, the better for everybody. I stress quietly. The thing to do is to simmer down—to quit talking so much about matters that we are so little likely to do much of anything about, unless we take leave of our gumption. A few observations are due concerning the qual- ity of the Court's decision and. the pertinent opin- ions. The opinion delivered by the presiding judge, Sir Percy Spender, strikes me as a superb judicial 8 worldvieto exercise, equal in quality to the erudite and essen- tially right opinion in which he and Sir Gerald Fitz- maurice as dissenters combined at the prelimin;iry stage in 1962. It is good to see such wisdom ele- vated from a losing to a prevailing position. In such a legal controversy, it is necessary for the petitioning side to construct a chain of reasoning long enough to reach from the initial premise to the conclusion sought. If one link fails, the chain fails as determinatively as if every link should give way. A respondent needs to demolish only one link- in the essential chain in order to prevail. Courts are wisely reluctant to carry the adjudicative func- tion to excess. It is standard judicial practice to re- solve only such issues as are necessary to dispose of a case, the maxim being that when it is not nec- essary to decide it is necessary, not to decide. The petitioners' first link crumbled under judicial analy- sis. So the Court has left the matter there, A headline I saw in The New York Times called the basis of decision a technicality. The dictionary's relevant definition is: "something which is techni- cal; especially, a point of law, detail of procedure, rule, etc., of significance only to a technician." The term is often used in controverted matters dispar- agingly; one side's point of substance is a techni- cality to the opposing side. When a chain of legal reasoning snaps, the losing side is wont to say that only one link went—and it but a technicality. Like other disciplines, however, law is a fabric woven of technicalities. In a legal context, to call something technically defective is to call it legally defective. To say that the petition was rejected on a techni- cality is just a way of saying that it lacked accept- ability as a proposition in law, but by the use of that word the pejorative implication is shifted from the petition to the decision, I noted that word in the headline with amuse- ment at another instance of editorializing in a news account. Then a high spokesman in our foreign pol- icy—why name him?—used the same term in the same connection, Noting it that time, I disapproved heartily. If that overpressed official should ever find occasion to familiarize himself with the opinion, his misimpression will be corrected. The basis of deci- sion was a matter of substantive law. The presiding judge's opinion makes the point amply clear. The applicants were found to have no legal right or in- terest in the subject matter of their claims. A tech- nicality? Maybe so. It would depend on the inflec- tion used. If one means a mere technicality, then no. Such a basis for a judicial finding is about as substantive as one can get. A related notion widely repeated by persons un- familiar with the relevant opinions, having to rely therefore on news media for their evaluations, echoes Judge Jcssup's highly publicized declaration, in dis- sent, labeling "the Judgment which the Court has just rendered . . . completely unfounded in law." Obviously, if he considered the judgment otherwise than as he describes it, he would concur instead of dissenting. Boiled down to its essence, the quoted assertion conveys only the fact of Judge Jessup's disagreement with the prevailing side. He registers his view in the style customary in judicial polemics. Like anyone else, a judge dislikes being among the losers. In the immediate moment of disappointment he is likely to display pique by choosing dramatic language. Moreover, a dissenting judge casts him- self as advocate for an overruled cause, and advo- cacy requires a combative approach. In Judge Jes- sup's instance, disappointment is heavy indeed. He feels deprived of an opportunity to go all the way with the petitioners. Notwithstanding the presiding judge's appeal for colleagues to focus their ap- pended essays on the determining element in the case and to avoid laboring the might-have-beens, Judge Jessup's essay examines approvingly all the links in the snapped} chain. His considerable skills in advocacy arc displayed to the full. (In a concur- ring opinion South Africa's ad hoc judge, J, T. van Wyk, labors similarly to show how he thinks each of those links might have been sundered in its turn if the Court had to go on to deal with them. His and Judge Jessup's extensive essays in advocacy have at least the value of rounding out the record by exploring all the controverted ramifications.) As a related point, it is not correct-though I have noted several misguided allegations to the contrary —that the element on which the decision turns was properly disposed of once and for all in the 1962 stage of the proceedings. The idea is palpably false. To utter it is like saying, on meeting an acquaint- ance after a considerable interval, "But I thought you were deadl Aren't you? I couldn't have been wrong!" Nor is it correct diat the Court, besides resurrecting the element on which the decision foc- used, heard no fresh argument on it. The element remained an inherent issue throughout, and it was argued by counsel as searchingly if not as lengdi- ily, in the latter stages as in the preliminary phase. What has happened essentially is a shift in deter- mining numbers. It is not so much a case of the Court's changing its mind, Different minds have changed the Court. The old dissenters have become the new prevailers, acceding thus to the right to call October I960 9 themselves the Court. As one of them puts it, "The Court is not bound to perpetuate faulty reasoning, and nothing contained in the 1962 Judgment could constitute a decision on any issue which is a part of the merits of the claim." Yet another criticism widely voiced pertains to the six-year interval between onset and upshot. Is it fair, the critics ask, to let petitioners protract false expectations so long—to withhold bad news until so late. {A teacher often hears similar plaints from students denied a degree after long endeavor.) The point is psychologically understandable. Those who launched the case felt so certain of a verdict that the outcome leaves them with a sense of being jilted. The right to attempt a suit is not a right to a favorable judgment, however. The long wait and final letdown would never have occurred if the peti- tioners had not launched a complex litigation on a dubious premise. No one compelled, or even en- ticed, them into a vain suit and false hopes. In all that interval the petitioners have been denied noth-. ing rightfully theirs. The criticism reminds me of a magazine agent who once told me I bad just wasted a half-hour of his time. Anodier reproach is that the decision is political. That last is a tricky word, a catchall pertaining to aspects of public affairs involving highly contro- verted interests and conflicts of purpose between or among large groups, with no established, accepted frame of values by which to settle the matter at issue, to the general satisfaction, at hand. The word political pertains to the processes by which such matters arise, and such controversies are waged, managed, and perhaps finally brought to solution. In any proper sense of the word the South West Africa case is inherently political. The sponsors of the petition are politically actuated. What they have sought is a judicial writ to use as a political weap- on. I am not calling this reprehensible. I am just saying it is so. So also is the respondent politically motivated. One cannot examine any facet of the case without finding matters which are inextricably political. When someone on the side whose interests did not prevail calls the decision political, one can only remark, "Look who's talking!" Obviously, also the Court's decision has a political effect. It alters the frame of the dispute about South West Africa and thus indirectly about South Africa as well, just as it would alter the frame of dispute if the deci- sion were in the opposed direction. Those who would attack the Court's judgment as political only reflect their disappointment that the Court, in inter- preting the law, did not fashion a decision to suit their political designs. 10 worldview In this respect, the Court's judgment seems to me altogether salutary. It is beyond the Court's province to stay the current widespread urge to make every- body's business everybody's business over the great globe, but the effect of the Court's judgment is to put a damper on the fashion of parading that urge under a rule-of-law rubric. Not everyone who fancies a grievance has therefore a case. The Court exists to apply the rules scrupulously as valid cases come to it, but its mission is not to issue hunting licenses for dissatisfied governments to go stalking in other people's preserves. The Court is disposed to remain a Court, not to be tempted to set itself up as a leg- islature. Such are some of the points implicit in the South West Africa judgment. One can only hope that a determining number.of governments, includ- ing our own, will come to recognize the eminent good sense of that position and to discern that the judgment preserves, rather than sacrificing, the Court's usefulness. As knowledge of the nature of thfe pleadings re- jected by the Court widens, many-persons now dis- posed to be critical about the judgment may well come to see its essential wisdom. I refer here par- ticularly to the interpretation of pertinent matters put forth by the applicants after the respondent had succeeded in refuting the original premises of the application and the accompanying allegations re- garding performance under the mandate. The inter- pretation thereupon resorted to by the applicants would have the Court assume powers of a legisla- tive character not entertained in the instrument. which created it. The Court, moreover, would be called upon to attribute to General Assembly reso- lutions a law-making import not warranted by the United Nations Charter. In the name of the rule of law, the Court was thus importuned to contrive new law to suit the applicants' ends. In determining num- ber, the judges have declined to presume a preroga- tive not j-ightfully theirs or to read into the Charter an intent which the Charter does not in fact reflect. If the judges were compelled to go as far as to ad- dress themselves to that issue in resolving the case, they would have to choose between a judicial ar- rogation and an implicit extension of judicial ap- proval to South Africa's policies. At such a juncture, the Court would indeed take on a political char- acter. That juncture has been avoided, for the Court has found ample basis for resolving the case on an antecedent, though centrally important, aspect. This is not to say, in any invidious way, that the Court's resolution of the case is politically motivated. In face of great pressures, the judges of the Inter- national Court of Justice in determining number have kept to the best tradition of jurisprudence, thereby reconfirming for the institution the esteem which I recall having heard Chairman O'Hara voice so succinctly at one of the hearings of the subcom- mittee on Africa. Indeed, a matter for which the prevailing judges deserve great credit is their re- sistance to becoming politicized in handling a case inescapably charged with politics. It is no detrac- tion from the value and the conclusiveness of the decision that the outcome was determined by the presiding judge's breaking of a tie, though one of the dissenting judges faintly attempts to make a point on this score, The rules constraining the Court in thus resolving the case are as basic to its struc- ture as is the judge's right to voice his dissent. Thank you for inviting my attention to The Con- gressional Record reporting Chairman O'Hara's well chosen words occasioned by the judgment. They display a balance between specific immediate regret over the outcome and a general disposition to re- spect the institution and its processes, and the ef- fect is consistent with the Chairman's remarks al- luded to above. I am reminded, by contrast, of a TV interview in which someone speaking for the ap- plicants characterized the Court's judgment as a "judicial abortion." Someone identified with a mis- conceived and miscarried case is likely thus to choose terms calculated to shift fault from the case itself to the outcome, much as a strongly motivated ball player often inveighs against the umpire on be- ing called out in attempting to steal a base. The re- actions voiced by the applicant governments them- selves and some of the governments associated with them in supporting the venture to elicit a court de- cision for use in a political cause have been in sim- ilar vein. One is reminded of the way fans in Flat- bush used to react when the old Dodgers dropped a ball game. I am prompted to a thought about style in being on the losing side in international litigation. A few years ago a friend of mine, who is a distinguished member of the bar and a statesman of high repute, represented a Southeast Asian government in a case before the International Court of Justice growing out of a dispute with a neighboring country over a certain parcel of land. His side won the judgment. The other side recriminated strenuously on the "we- wuz-robbed" theme. My friend was scornful of such conduct. He remarked to me his confidence that there would have been no such reaction if the de- cision had gone the other way. He told of having taken upon himself as counsel a duty to instruct his clients in the nature of judicial processes and the character of judicial resolution of controversies. A disputant tends to sec only his own side of the case, thus to define justice in terms of his own interests. He is all too likely to regard a court as morally and legally bound to see the issues his way. A ca- pacity to surprise litigants is inherent in the judicial process. My friend had impressed these points upon his clients. He had advised them about expecting the unexpected and had made clear to them how to comport themselves in event of an adverse ruling. "The rule of law, after all, is not merely an abstrac- tion in the judges' custody," he remarked to me. "It is also, and even more importantly, an attitude of mind among adversaries and a mode of behavior in concrete situations." CHARLES BURTON MARSHALL London, England Dear Sir: In your very interesting issue for July- August there is an editorial "Justice and the Inter- national Court," which seems to me to make the case appear even worse than it actually is. What the Court did was to declare that Ethiopia and Liberia, which had brought the case to the Court, were not entitled to do so, and that they had no status as appellants. This of course was an extraordinary de- cision, since quite the opposite had been taken in 1962 and it means that the rights and wrongs of the case never came before the Court at all. The Court ha* tlierefore made no decision for or against the case'but has declined to discuss it when brought before them by two individual countries. It would, however, be perfectly in order for the U.N. itself to bring the case before the Court, the only difficulty being tliat as it could not be called a dispute they could only ask for an advisory opin- ion, and this of course has not got the force of law. However, it looks as though the African countries at the U.N. Assembly are going to ask for a good- deal more than this, and we shall have to wait and see what happens. In the meantime I think it is very important to emphasize the fact that the World Court has not taken a decision about S. Africa and its mandate for S.W. Africa, merely because it would not accept Ethiopia and Liberia as having a right to bring cases to the Court, because they have no status as individual countries. D A M E KATHLEEN COURTNEY, D.B.E. October 1966 11 
work_43anyane6jcehjzn7w6orxrbbi	----	JUSTICE, GENDER AND INTERNATIONAL BOUNDARIES JUSTICE. GENDER AND INTERNATIONAL BOUNDARIES Onora O'Neill. University of Essex, May 1989 1. JUSTICE FOR IMPOVERISHED PROVIDERS Questions about Justice to women and about international Justice are often raised in discussions of development. Yet many influential theories of Justice have difficulty in handling either topic. I shall first compare some theoretical difficulties that have arisen in these two domains, and then sketch an account of Justice that may be better suited to handling questions both of gender and of international Justice. I begin by distinguishing idealized from relativized theories of Justice. Idealized accounts of Justice stress the need to abstract from the particularities of persons. They paint Justice as blind to gender and nationality. Its principles are those that would regulate the action of idealized "abstract individuals", hence take no account of differences between men and women and transcend international boundaries. Relativized accounts of Justice not only acknowledge the variety and differences among humankind, but ground principles of Justice in the discourse and traditions of actual communities. Since nearly all of these relegate (varying portions of) women's lives to a 'private' sphere, within which the political virtue of Justice has no place, and see national boundaries as limits of Justice, appeals to actual traditions tend both to endorse institutions that exclude women from the 'public' sphere, where Justice is properly an issue, and to insulate one 'public' sphere from another. Both idealized and relativized accounts of Justice look inadequate from the perspective of those whom they marginalize. Women, in particular poor women, will find that neither approach takes account of the reality of carrying both reproductive and 1 productive tasks, while having relatively little control over the circumstances of one's life. Women's lives are not well conceLved dust as those of idealized individuals. A world of ,such individuals assumes away relations of dependence and interdependence; yet these are central to most lives actually available to women. Nor are womens's lives well conceived solely in terms of traditions that relegate them to a 'private' sphere. The productive contributions and the cognitive and practical independence of actual women are too extensive, evident and economically significant to be eclipsed by ideologies of total domesticity and dependence. The awkward fit of theory to actuality is most vivid for poor women in poor economies. These women may depend on others, but lack the supposed securities of dependence. They are impoverished, but are often providers. They are powerless, yet others who are yet more vulnerable depend on them for 1 protection. Their vulnerability reflects heavy demands as much as slender resources. They may find that they are relegated to and subordinated within a domestic sphere, whose separate and distinctive existence is legitimated not by appeals to justice but by entrenched views of family life and honour. They may also find that this domestic sphere is embedded in an economy that is subordinate to distant and richer economies. They not only raise children in poverty; they raise crops and do ill-paid and insecure work whose rewards fluctuate to the beat of distant economic forces. This second subordination too is legitimated in varied discourses which endorse an internationalized econoirio order but only national regimes of taxation and welfare. A serious account of Justice cannot gloss over the predicaments of impoverished providers in marginalized and developing economies. 2 2. PREVIEW: ABSTRACT PRINCIPLES AND CONTEXT SENSITIVE JUDGEMENT Both idealized and relativized approaches to justice make seemingly legitimate demands. Idealized approaches insist that justice must abstract from the particularities of persons. Blindness to difference is a traditional image of Justice and guarantees impartiality. Yet principles of justice that are supposedly blind to differences of power and resources often seem to endorse practices and policies that suit the privileged. Hence a demand that justice take account of context can seem equally reasonable. Justice, it is argued, needs more than abstract principles: it must guide judgements that take account of actual contexts and predicaments and of the differences among human beings. Relativized principles of justice meet this demand: but since they are rooted in history, tradition or local context, they will endorse traditional sexism or nationalism. Any relativism tends to prejudice the position of the weak, whose weakness is mirrored and partly constituted by their marginalization in received ways of thought and by their subordination and oppression in established orders. Yet idealizing approaches do no better. Where relativist approaches are uncritical of established privilege, idealized approaches are uncritical of privileges from which they abstract. If accounts of justice had to be either idealized or relativized. we would have to choose between demands for abstraction from difference and for sensitivity to difference. If there are other possibilities, an account of justice may be able to meet demands both for abstract principles and for context sensitive judgements. I shall try to sketch a third possibility, which gives both abstraction and sensitivity to context their due 3 -- but only their due. This can be done by meeting the demands for abstraction from and sensitivity to context in two distinct, successive moves. The first move is to argue for abstract principles of universal scope, while rejecting the supposed link between abstraction and positions that not merely abstract but (in a sense to be explained) idealize. Much contemporary moral reasoning. and in particular 'abstract liberalism' (whether *deontological' or utilitarian), handles issues of gender and international justice badly not because it abstracts (e.g from sex, race, nationality), but because it also almost always idealizes specific conceptions of the human agent and of national sovereignty which are often admired and are more (nearly) feasible for men rather than for women and for developed rather than developing societies. However, abstraction itself, without idealization, is the route rather than the obstacle to broad scope and is unobjectionable in principles of justice. The second move answers demands that we take account of the context and particularities of lives and societies. but does not build culturally specific ideals of gender and of national sovereignty into the principles of justice. The second move insists that judgements of justice take account of cert ain differences by applying abstract principles to determinate cases without tacitly reintroducing restricted ideals ( e . g . o f gender and national sovereignty) so relativising principles of justice to accepted beliefs, traditions or practices. Abstract principles can guide context sensitive judgement without lapsing into relativism. 4 3. ABSTRACT JUSTICE AND HUMAN DIFFERENCES: FEMINIST DEBATES. Discussions of gender justice have been structured by disagreements over the extent and import of differences between men and women. For liberals who defend abstract principles of Justice it has been embarassing that the Rights of Man were taken for so long and by so many of their predecessors as the rights of men, and that liberal practice failed for so long to end male 2 privilege. (Socialist feminists suffer analogous embarassments). Starting with Wollstonecraft and J.S. Mill, liberal feminists argued against women's difference. and claimed that women's like rationality entitled them to equal rights. More recent liberal feminists have noted that even when women had equal political and legal rights, their political participation and economic rewards remained less than those of men, and less than those of men whose qualifications and labour force participation women matched. Supposedly gender-neutral and neutralizing institutions, such as democratic political 3 structures and markets, did not eliminate gender differentials. Many have concluded that approximations to political and legal Justice in various domains of life evidently cannot close the ft radical gap between men's and women's paths and prospects. In response some liberal feminists argued that justice demands more thorough equal treatment. For example, it may require forms of affirmative action and reverse discrimination in education and employment, as well as welfare rights to social support for the poor and those with heavy family responsibilities. Some differences are to be acknowledged in principles of Justice. This move has two difficulties. First, many liberals deny that Justice demands compensatory 5 redistribution, especially of positional goods. They think these should be allocated by competitive and meritocratic procedures. This debate is of particular importance in the developed world. The second problem arises even where the goods to be distributed are not positional, and is particularly significant in the Third World. Where resources are scarce, non-positional goods such as basic health care or income support or children's allowances or unemployment insurance may be unfundable out of a slender national tax base. If social justice demands basic welfare provision, justice must reach across boundaries. An account of gender justice would then have to be linked to one of 5 international distributive justice. This liberal debate continues, but its terms have been increasingly questioned by feminists in the last decade, many of whom claim that, despite its aspirations, gender bias is 6 integral to liberal justice. Their suspicions focus on the very abstraction from difference and diversity which has been the hallmark of liberal justice. Some of these 'post-liberal' feminists criticize abstract liberalism by highlighting respects in which particular supposedly gender-neutral theories -overtly assume or endorse gendered accounts of the human subject and of rationality. Many aspects of these critiques are convincing. However, the most fundamental contemporary feminist challenge to abstract liberalism ostensibly impugns reliance on abstraction itself. Gilligan's influential work claims that an emphasis on justice excludes and marginalizes the 'other voice' of ethical thought. 'Abstract liberalism1 simply and unacceptably devalues care and concern for particular others, which are the core of womens' moral life and thought, seeing 7 them as moral immaturity. The voice of justice is 6 intrinsically 'male' in its refusal to grasp the actualities of human difference, in its supposed agnosticism about the good for man, and its resulting disregard of the virtues, and specifically of love and care. On this account the problem is not to secure like treatment for women, but to secure differentiated treatment for all. In locating the distinction between justice and care (and other virtues) in a disagreement over the legitimacy of relying on abstract principles, feminist critics of abstract liberalism often view concern for care as not merely different from but opposed to concern for Justice. They can end up endorsing rather than challenging social and economic structures that marginalize women and confine them to a private sphere. Separatism at the level of ethical theory can march with acceptance of the powers and traditions that be. A stress on caring and relationships to the exclusion of abstract justice may endorse relegation to the nursery and the kitchen, to purdah and to poverty. In rejecting 'abstract liberalism' such feminists converge with traditions that have excluded women from economic and public life. An appeal to 'women's experience', 'women's traditions' and 'women's discourse' does not escape, but rather echoes, ways in which women have been marginalized or oppressed. Those who celebrate the other 'voice' often assume that differences. are taken seriously 8 only when actual differences are endorsed. The disputes that now divide liberal feminists and their contextualist critics ostensibly pose an unwelcome dilemma about gender justice. If we adopt an abstract account of justice, which is blind to differences between people, so to the ways in which women's lives in the developed and in the undeveloped world 7 differ from men's lives, we commit ourselves (it is said) to uniform treatment regardless of difference. But if we acknowledge the ethical importance of human differences. we are likely to endorse traditional social forms that sustain those differences, including those that subordinate and oppress women. 4. ABSTRACT JUSTICE AND NATIONAL DIFFERNCE: COMMUNITARIAN DEBATES This dilemma recurs in certain discussions of international Justice. Abstract liberalism proclaims the Rights of Man. As Burke was quick to complain. this is quite a different matter from proclaiming the traditional rights of Englishmen, or of Frenchmen, or of any coherent group. Abstraction was the price to be paid for ethical discourse that could cross the boundaries of states and nations and have universal appeal; and Burke found the price unacceptable. The internationalist, cosmopolitan commitments that were implicit in the ideals of liberalism have repeatedly been targets of conservative and communitarian criticism. Liberal practice has, however, once again teen quite different. It has not been universalistic, but clearly subordinated to the boundaries and demands of nation states. This is evident in relations between rich and poor states. Like treatment for like cases is partially secured by laws and practices within many democratic states; only a few enthusiasts argue for world government, or think that rights of residence, work and welfare, as well as burdens of taxation, should be global. Such enthusiasm is often dismissed by practical people who hold that a plurality of national Jurisdictions provides the framework(s) within which liberal ideals can be pursued. Liberals may not be generally willing to take differences seriously; but 8 they have taken differences between sovereign states remarkably seriously. Their communitarian critics want to take differences and 9 boundaries seriously in theory as well as in practice. When boundaries are taken wholly seriously. however, international Justice is not Just played down, but wiped off the ethical map. Walzer's work is a good case in point. He holds that the largest sphere of Justice is the political community and that the only issues not internal to such communities are about membership in them and conflicts between them. The issues of membership concern the admission of individual aliens: rights and duties do 10 not go beyond borders. A commitment to community is a commitment to the historical boundaries of political communities, whatever these happen to be and whatever injustices their constitution and their preservation cost. Communitarians cannot easily take any wider view of ethical boundaries since their critique of abstraction is in part a demand for ethical discourse that takes 11 'our' language, 'our' culture and 'our' traditions seriously. Like current debates on gender Justice, discussions of international Justice apparently pose an unwelcome choice. Either we can abstract from the reality of boundaries, and think about principles of Justice that assume an ideal, cosmopolitan world, in which Justice and human rights do not stop at the boundaries of states. Or we can acknowledge the reality of boundaries and construe the principles of Justice as subordinate to those of national sovereignty. Cosmopolitan ideals are evident in the discourse of much of the human rights movement; but some recent liberal theorists have shifted towards the relativism of their 9 communitarian critics, and even view liberal principles of justice as no more than the principles of liberal societies. 12 Rawls in particular now hinges his theory of Justice not on an abstract and idealized construction of an original position but on the actual ideals of citizens of liberal democratic societies. Here we see a surprising and perhaps unstable convergence between abstract liberal theorists and their communitarian critics. 5. ABSTRACTION WITH AND WITHOUT IDEALISATION Debates about gender and international justice are rot merely similar in that each is structured by a confrontation between advocates of abstract principles and of context sensitive Judgements. In each debate the two parties depict these demands as incompatible. However, the reason for the incompatiblity may be that many advocates of abstraction and of sensitivity to context are making other, stronger claims that are indeed incompatible. What these debates term 'abstraction* is often a set of specific, unargued idealizationa of human agency, rationality and life and of the sovereignty and independence of states. And in each debate what is described as attention to actual situations and contexts in judging in fact often extends to building recognition of differnces into fundamental principles— and so amounts to relativism. These conflations are avoidable. Abstraction, taken strictly, is simply a matter of detaching certain claims from others. Abstract reasoning hinges nothing on the satisfaction or non-satisfaction of predicates from which it abstracts. All uses of language must abstract more or less: the most detailed describing cannot dent the indeterminacy of language. Indeed it isn't obvious that there is 10 anything to object to in very abstract principles of justice. Highly abstract ways of reasoning are often admired (mathematics, physics), and frequently well paid (accountancy, law). What is different about abstract ethical reasoning? When we look at objections to 'abstract' ethical principles and reasoning in detail it appears that they are often objections not to detachment from certain predicates. but to the inclusion of predicates that are false of the objects of the domains to which a theory is then applied. Reasoning that abstracts from some predicate makes claims that do not hinge on the objects to which the reasoning is applied satsifying that predicate. Reasoning that idealizes makes claims that hinge on the objects to which it is applied satisfying certain predicates. Where those predicates are unsatisfied the reasoning simply does not apply. The principles and theories of Justice to which the critics of 'abstract liberalism' object are indeed abstract. They take no account of many features of agents and societies. However, these principles and theories not only abstract but idealize. They assume. for example. accounts of rational choice whose claims about information, coherence, capacities to calculate and the like are not merely not satisfied by some deficient or backward agents, but are actually satisfied by no human agents (perhaps they are approximated, or at least admired, in restricted shopping and gambling contexts!). They also assume idealized accounts of the mutual independence of persons and their opportunities to pursue their individual 'conceptions of the good', and of the sovereignty and independence of states, that are false of all human beings and all states. Such idealizations no doubt have theoretical advantages: above all they allow us to construct models that can readily be 11 manipulated. However, they fail to apply to most, if not all, practical problems of human choice and foreign policy. If idealized descriptions are not simply abstracted from descriptions that are true of actual agents, they are not innocuous ways of extending the scope of reasoning. Each idealization posits an 'enhanced' version of the objects of the domain to which the model is applied. Idealizations may privilege certain sorts of human agent and life and certain sorts of society by covertly presenting (enhanced versions of) their specific characteristics as true of all human action and life. In this way covert gender chauvinism and an exaggerated view of state sovereignty can be combined with liberal principles. Idealization masquerading as abstraction yields theories that appear to apply widely, but which covertly exclude those who don't match a certain ideal, or match it less well that others. Those who are excluded are then seen as defective or inadequate. A reconsideration of debates about gender and international justice shows that the feminist and communitarian critics of liberal Justice could legitimately attack spurious idealizations without impugning abstraction that eschews idealization. 6. GENDER AND IDEALISED AGENTS Liberal discussions of justice ostensibly hinge nothing on gender differences. They apply to individuals, considered in abstraction from specific identities, commitments and circumstances. Recent critics insist that liberal theories of justice are far from being as gender blind as their advocates claim. An instructive example is Rawls' A. Theory of Justice. Rawls was particularly concerned t^m* to avoid an extravagant view of human agents. His principles of justice are those that would 12 be chosen by agents in an 'original position' in which they know less rather than more_ than actual human agents. He conceives his work as carrying the social contract tradition to "a higher level of abstraction". In particular, agents in the original position do not know their social and economic position, their natural 13 assets or their conceptions of the good. The original position operatlonalizes the image of justice as blind to difference. However, Rawls has at a certain point to introduce grounds for those in the original position to care about their successors. He suggests that we may think of them as heads or at others times as representatives of families, "as being so to 114 speak deputies for an everlasting moral agent or institution" and that some form of family would be dust. In doing so he preempts the question of intra-familial Justice. He preempts the question not by crude insistence that heads of families must be men, but by taking it as read that there is some Just form of family which allows the interests of some to be Justly represented by others. The shift from individuals to heads of families as agents of construction is not an innocent abstraction: it assumes a family structure which secures identity of interests between distinct individuals. It takes for granted 15 that there is some Just 'sexual contract', that Justice can presuppose a legitimate separation of 'private' from 'public' domains. This is idealization indeed: it buries the question of gender Justice rather than resolving it. Rawls' text leaves it surprisingly obscure whether some (women?) are to be relegated to a 'private' sphere and represented by others (men?) in the construction of Justice, whether both 'public' and 'private' 13 realms are to be shared by all on equal terms or whether some 16 (women?) alone are to carry the burdens of both spheres. The more radical feminist critique of abstract liberalism refuses not merely the supressed gendering of the subject which Pateman and Okin detect in classical and contemporary liberal writers. but abstraction itself. In advocating an ethic of care these critics come close both to traditional misogynist positions and to ethical relativism. When the 'voices'of justice and of care are presented as alternatives between which we must choose, each is viewed as a complete approach to moral issues. However, the two in fact focus on different aspects of life. Justice is concerned with institutions, care and other virtues with character. which is vital in unmediated relationships with particular others (and perhaps also important in ediated relationships). The central difference between the 'voices' of justice and of care is not that they demand that we reason in different ways. Justice requires judgements about cases as well as abstract principles; care is principled as well as responsive to differences. Justice matters for impoverished providers because their predicament is one of institutionally structured poverty which cannot be banished by idealizing an ethic of care and insisting on its place in face to face relationships. 7. IDEALIZED BOUNDARIES A comparable slide from unavoidable abstraction to suspect idealization can be found in discussions of international justice. Discussions of global economic and political issues often take it for granted that the principal actors are states. Traditionally the main divide in these discussions has been between realists, who contend that states, although agents, are 14 exempt from moral obligations and criticism, and idealists who insist that states are not merely agents but accountable agents 17 who must meet the demands of justice. However, in discussions of distributive justice, the salient issue has not been the conflict between idealists and realists, but their agreement that state boundaries define the main actors in international affairs. These shared terms of debate endorse an exaggerated. idealized view of the agency and mutual independence of sovereign states, which is increasingly criticized as obsolete. The common ground on which realists and idealists traditionally debated international relations is being eroded as other actors, including international agencies, regional associations and above all transnational corporations, play a 18 more and more significant role in world affairs. A world that is partitioned into discrete and mutually impervious sovereign states is not an abstraction from our world, but an idealized version of it, or perhaps an idealized version of what it once was. Realists as well as idealists idealize the sovereignty of states. Idealized conceptions both of state sovereignty and of state boundaries limit discussions of international distributive Justice. Although long subject to theoretical questioning from advocates of human rights, who deny that states can be sovereign in determining the fates of individuals, many liberals are coy about criticising rights violations beyond boundaries. They limit criticism to violations of liberty rights. and offer little acount of the agency or responsibilities of institutions; they find it hard to see how justice could require that state boundaries be breached to reduce poverty that lies beyond them. 15 We still speak of international rather than of transnational Justice. Even those liberals who defend welfare rights are often concerned with welfare in one (rich) country. It is common to classify economic development of poorer regions as optional 'aid', not obligatory Justice. Those who have tried to argue for global welfare rights within a liberal framework have to show who bears the obligations that correspond to these rights, and this 19 has proved an uphill task. Meanwhile liberals, like communitarians, confine Justice within national boundaries. Liberals do so self-consciously and provisionally; communitarians on priniciple and unapologetically; others tacitly and without discussion. 8. ABSTRACTION WITHOUT IDEALIZATION The only way to find theories that have wide scope is to abstract from the particularities of agents; but when abstraction is displaced by idealization we are not led to theories with wide scope, but to theories that apply only to idealized agents. This suggests that if we are interested in international or in gender Justice we should resist the temptation to rely on idealizing models of human agency or national sovereignty. we should instead consider what sort of theory of Justice we would have if we abstract but refuse to idealize any one conception of rationality or independence, and so avoid marginalizing or excluding those who don't live up to specific ideals of rationality or of independence from others. Abstraction without idealization may allow us to consider a wide range of human agents and Institutional arrangments without hingeing anything on the specific features of agents' traditions, ideologies .and capacities to act. If we could do this we might avoid idealized 16 accounts of agency and sovereignty without following feminist and communitarian critics of abstract liberalism into relativism. Recent discussions may simply have been mistaken in treating appeals to idealized and to relativized standards of rationality and agency as the only options. There are other possibilities. We do not have to hinge liberal arguments for rights or for the limits of government power either on the hypothetical consent of those who meet some ideal standard of rationality and mutual independence, or on the actual acceptance of an outlook and its categories that relativizes consent to an established order. We could instead begin simply by abstracting from existing social orders. We could consider what principles of action must be adopted by agents who are numerous, diverse and neither ideally rational nor ideally independent of one another, and yet avoid specific assumptions about these agents. We can bracket both idealizations and the status QUO. The issue then becomes: how powerful and convincing an account of Justice can we offer if we appeal neither to fictions of ideal rationality and independence nor to the contingencies of actual agents and institutions? What happens if we abstract without idealizing? 9. PLURALITY AND JUSTICE: WHO COUNTS? Let us begin with the thought of a plurality of potentially interacting and diverse agents. This rules out two cases. First, it rules out the case where justice is not a problem because there is no plurality, or no genuine plurality, of agents, hence no potential for conflict between agents. (The action of agents in such a degenerate plurality might be automatically or necessarily coordinated, e.g. by instinct or by a preestablished harmony) Second, it rules out hingeing an 17 account of justice on an assumed, contingent and determinate limit to the diversity of its members. which provides a common ground between them and permits a contingent, socially guaranteed convergence and coordination. The two cases that are ruled out are once again those which would base principles of justice on an assumed ideal convergence or an assumed actual historical or social convergence. What does justice require of such a plurality? At least we can claim that their most basic principles must be ones that could be adopted by all. If they were not, at least some agemts would have to be excluded from the plurality for whom the principles can hold, whose boundaries would have to be drawn more narrowly. Such a redrawing of boundaries is, of course, the very move often used to exclude women and foreigners, let alone foreign women, from the domain of justice. Those who exclude simply refuse to count certain others as members of a plurality of potentially interacting agents. The universalist aspirations of an account of justice which hinges on the sharability of principles can easily be derailed by excluding some from the domain of Justice without argument. So it is important to see the move for what it is. This can best be done by asking who makes the move. The move is not made by idealized genderless theorists who live outside state and society. It is made by people who generally expect women to interact with them, to follow language and reason, to understand and take part in elaborate traditions and institutions, perhaps even to love, honour and obey. It is made by people who expect ordinary processes of translation, 18 trade and negotiation to work with foreigners. To deny the agency of others with whom we interact in complex ways reeks of bad faith. Bad faith can be avoided only by counting as members of the plurality for whom principles of justice are to hold anybody i. with whom interaction is to be undrtaken or held possible. The question then becomes: are there any principles which must be adopted by all members of a plurality of potentially interacting agents? We cannot simply stipulate that such principles are irrelevant for interactions with certain others on whose (no doubt imperfect) capacities to reason and (no doubt limited) abilities to act independently we know we depend. If women were all transported to Betelgeuse, and so beyond all interaction with the remnant men on Earth. neither men nor women would have to see the other as falling within the domain of justice. Less fancifully, since the ancient inhabitants of the Andes and their contemporaries in Anglo-Saxon England could not and did not interact, neither would have acted in bad faith if they excluded the other from the domain of justice. Neither of them could practice either justice or injustice to the other. Things are different for the actual men and women who inhabit the earth now: the potential for interaction cannot be assumed away, and others cannot be arbitrarily excluded from the domain of justice. We rely on global economic and political processes, so cannot consistently insist that justice (conveniently for the developed world) stops at state frontiers, any more than we can rely on women's rationality and their productive contribution and then argue that justice (conveniently for some men) stops at the edge of a supposed 'private' sphere, whose existence and demarcation is in fact presupposed in defining a 'public' sphere. 19 10. PLURALITY AND JUSTICE: WHAT PRINCIPLES? Justice is then in the first place a matter of keeping to principles that can be adopted by any plurality of potentially interacting beings. But if we eschew both idealization and relativism, and rely on mere abstraction, will we have strong enough premisses to identify those principles? Does a universalizability test cut any ice? Granted that universalizability is not uniformity (as some critics of abstract liberalism suppose), is it not too weak a demand to ground an acount of justice? In particular, will not any internally coherent principle for Individual action be a universallzable 20 principle? We have, however, to remember that we are considering the case of a plurality of potentially interacting beings, that is of beings who share a world. Any principle of action that is adopted by all members of such pluralities alters the world that they share and becomes a background condition of their action. This is why certain principles of action which can coherently be held by one agent cannot be coherently proposed as principles for all. Examples of non-universalizable principles can illustrate the point. A principle of deception, which undermines trust, would, if universally adopted, make all trusting, hence all projects of deception, incoherent. Selective deception is on the cards: universal deception is impossible. Since nobody who hopes to deceive can coherently will that a principle of deception be fundamental to the practice of any plurality, Justice requires that it be rejected. Equally, a policy of coercion, which seeks to destroy or undercut others' agency and independence, cannot (without Incoherence) be universally prescribed by one who seeks to coerce, since its universal 20 adoption puts any coercer's agency and plans to coerce at risk. Those who are victims of coercion cannot (while victims) also act 21 on the principles on which their coercers act. Equally, a principle of violence which damages the agency of some others cannot be universally acted on. Put quite generally, nobody whose own principles of action hinge on victimising some, so on destroying, paralysing or undercutting their capacities for action can be committed to those same principles holding 22 universally. To Keep matters under control let us imagine only that Justice demands (at least) that action and institutions not be based on principles of deception and victimization. (There may be other principles of Justice) Still we are far from showing just what justice demands, since we do not Know what refusing to deceive or to coerce may demand in specific circumstances. These guidelines are highly indeterminate. We seem to have paid the classic price of abstraction. Highly abstract principles do not tell us what to do in a specific context. However abstract principles are only part of practical, or specifically of ethical. reasoning. Principles never determine their own applications; even the culturally specific principles that relativists favour do not determine their own applications. All practical reasoning requires judgement and deliberation by which principles are applied to particular cases. An account of gender and international justice is no exception. We need in particular to be able to judge what specific institutions and action are needed if poor women in poor economies are be accorded justice. 21 11. PLURALITY AND JUSTICE: DELIBERATION WITHOUT RELATIVISM Two background issues must be dealt with summarily before considering moves from abstract basic principles to determinate Judgements. First, we have no reason to expet that principles of Justice will provide any algorithm of rational choice. Nor do we need any algorithm for principles to be important. Even principles that provide only a set of side constraints on action may make exigent demands. Second, we have no reason to think that principles of Justice are relevant only to the action of individuals. A full account of the agency of institutions would be a complex matter. I shall not go into it here, but will assume that it can be given and that institutions and practices, like individuals, must meet the demands of Justice. These moves, however, are preliminary to the main task of giving a more determinate account of what may be required if principles of deception or victimization are rejected. How, for example, can we Judge whether specific types of family or economic activity are based on deception or victimize some? Are all forms of hierarchy and subordination coercive? If not, how do we discern the boundaries of deceit and coercion in actual contexts? It is not hard to see that certain categories of individual action--e.g. fraud or wife burning or battering-- deceive or victimize, but other cases of deception and coercion by individuals are hard to adjudicate. It is may also hard to Judge whether social traditions that isolate or exclude women, or economic and familial arrangments that ensure their acute economic vulnerability, amount to modes of deceit and coercion. In this paper the task cannot be to reach determinate Judgements about particular cases, but only to see whether 22 reasoned moves from very abstract principles towards more specific principles. whose relevance and application to particular cases may be easier to assess, may be possible. It will not be enough to lean on the received criteria by which 'our' tradition or nation picks out ethically significant 'cases' or 'options' for approaching them. We beg questions if we assume that categories of thought that have been hospitable to male dominance and to imperialism can be decisive for discerning or judging Justice to those whose problems have been marginalized and whose agency and capacities have been formed, perhaps deformed, by unjust institutions. We cannot rely uncritically on the categories of established discourse, including the discourse of social scientists and of the 'helping' professions, to pick out the sigificant problems. These categories are themselves 23 matters for ethical concern and criticism. We have, after all, no more reason to trust relativized discussions of justice, gender or boundaries than to trust idealized approaches unequivocally. Those discussions are no more free of theory and ideology than are idealized discussions of justice. Their ways of individuating typical problem cases may be familiar: but familiarity may mask contentious and unjust delimitations. If the received views of a society or tradition are taken as defining the domain of problems to which abstract principles of justice are applied. unvindicated ideals will be introduced and privileged, just as they are in idealized approaches to justice. Some confirmation of the ways in which received descriptions of social relations reflect larger and disputed ideals is suggestive. Consider, for example, how issues of gender can be passed over as if invisible. We often find an enormous amount of 23 shifting around in the choice of basic units of social analysis. In the shifts between descriptions that focus on individuals, wage-earners and heads of families, there is enough flexibility for the blunt facts of economic and other subordination of women to be veiled. Women's low wastes can seem unworrying if they are wives for whom others provide; their dependence on husbands and fathers can seem acceptable if they are after all waste-earning individuals, so not invidiously dependent. Reproductive labour 27 may (with convenient ambiguity?) be thought of as priceless. Wage-earning women's low pay can be seen as fitting their low skills and vindicating their domestic subordination to wage- earning men, who as 'heads of families' are entitled to discretionary expenditure and leisure which wage-earning women must do without because they (unlike men!) have family commitments. The gloomy evidence of social structures and habits of thought that classify women's contributions as less valuable even when more onerous or more skilled are evident enough. We continually find ourselves "thinking about men as individuals who 28 direct households and about women as family members". There are equally serious reasons to mistrust the move from abstract principles to determinate Judgements in discussions of individual motivation. These too are shaped by received views, and in milieux which are strongly individualist are easily diverted into attempts to pin blame for injustices on individuals. Women, after all, commonly acquiesce in their social and economic subordination. Are they then to be blamed for servility? Or are men to be blamed for oppressing or 26 exploiting women? Or do these individualist approaches to assigning blame lead no further than the higher bickering? It can seem that we have reasons to mistrust not only relativist 24 approaches to sender Justice but even the attempt to apply abstract, non-idealized principles of Justice. But we do not inhabit an ideal world. Idealized conceptions of Justice simply do not apply to International relations, social relations or individual acts in a world in which states, men and women always lack the capacities and the opportunities of idealized agents. States are not really sovereign; even superpowers have limited powers; and men and women are always more or less vulnerable, ignorant, insecure, lacking in confidence or means to challenge or oppose the status quo. In a world of agents with finite capacities and opportunities, poor women in poor economies differ not in kind but in degree in their dependence on others and in others' demands on them. 12. JUST DELIBERATION IN A WORLD OF VULNERABLE AGENTS If we are to apply principles of Justice that are neither idealized, nor merely relative to actual societies, to vulnerable lives and their predicaments we must see how to move towards determinate Judgements about actual cases. The principles of Justice for which I have argued take us in this direction because they focus neither on the arrangements to which ideally rational and mutually independent beings would consent, nor on the arrangements to which others in possibly oppressive situations do consent. Rather they ask which arrangements a plurality of interacting agents with finite capacities, could, consent to. I have suggested, provisionally, that this non-idealizing construction identifies the rejection of deception, coercion and other ways of victimising others as principles of Justice. But principles are not enough. Non-idealizing abstraction 25 avoids some problems. but not others. If we are to move from abstract principles to determinate judgements we need to operationalize the idea of avoiding acting on unsharable principles, without subordinating it to the categories and views of the status quo. One reasonable way of doing so might be to ask to what extent the variable aspects of any arrangements that structure vulnerable lives, are ones that could have. been refused OX. renegotiated by_ those whom they actually constrain. If those affected by a given set of arrangments that could in prinicple be changed can in fact refuse or renegotiate them, their consent is no mere formality, but genuine, legitimating consent. If they could not but 'accept' those institutions, their 'consent' will not legitimate. The point of this way of operationalizing the notion of possible consent is that it neither ascribes ideal reasoning capacities and ideal independence from others to agents. nor hinges legitimation on an actual 'consent' that may reflect injustice. On this account justice requires that institutions. like acts, allow those on the receiving end. even if frail and dependent, to refuse or renegotiate any variable aspects of the roles and tasks assigned to them. Dissent becomes harder when capacities to act are Less developed and more vulnerable, and when opportunities for independent action are restricted. Capacities to act are constrained both by lack of abilities and by commitments to others. Institutional arrangements can disable agency both by limiting capacities to reason and act independently and by increasing the demands to meet the needs and satisfy the desires of others. Apparent consent to such arrangements does not show that they are just. Whenever 'consent' reflects lack of capacity or opportunity to do anything but 'consent', it does not 26 legitimate. Thinking in this way about Justice we can see that it demands more not less. to be just to the vulnerable. The vulnerable are much easier to deceive and to victimize than the strong: their 'consent' is all too easily elicited. If we are to Judge proposals for action by seeing whether they involve serious deception or victimization (coercion or violence). more will be demanded when others are vulnerable than when they are 27 secure. and most when they are most vulnerable. By contrast both idealized and relativized accounts of Justice tend to conceal the fact that Justice to the weak demands more than Justice to the strong. Idealized accounts of Justice tend to ignore vulnerability and relativized accounts to legitimate it. 13. ACHIEVING JUSTICE FOR IMPOVERISHED PROVIDERS The lives of poor women in poor economies illustrate these points well. Consider, for example, daily commercial transactions and practices. Their Justice, it is usually said, lies in the fact that arrangements are mutually agreed. But where there are great disparities of knowledge and vulnerability between agents. the 'agreement' of the weak may be spurious. They may have been duped by offers they did not understand or overwhelmed by 'offers' they dared not refuse. Within national Jurisdictions these facts are well recognized, and commercial practice is regulated to prevent pressure and fraud. Contracts can be voided for fraud: there are 'truth in lending' provisions; debt and bankruptcy will not lead to starvation: those with dependents can rely on a safety net of welfare rights. International economic transactions take place in a far less regulated space, yet link agents with far greater disparities in 27 power and resources. The weak can suffer both from particular others who take advantage of their ignorance and vulnerability, and because nothing informs them about or shields them from the intended or unintended consequences either of distant or of local economic forces. The poor, and above all those who are impoverished providers, cannot refuse or renegotiate their role in economic structures or transactions which hurt them, even when these structures and transactions could in prinicple be changed. They are vulnerable not only to low wages, low standards of industrial safety, endemic debt and disadvantageous dependence on 28 those who provide credit, but also to disadvantageous patterns of entitlement within the family. For example, debtors who need further loans for survival cannot make much fuss about 23 the terms creditors offer for purchasing their crops. In many societies the position of certain women-- daughters-in-law, for example, and younger girls--is acutely vulnerable. Vulnerable agents on whom others depend are at the mercy both of market forces and of more powerful kin. Idealized pictures of Justice have tended to overlook the import of economic power: by idealizing the capacities and the mutual independence of those involved in market transactions they obscure why the weak may be unable to dissent from arrangments proposed by the strong. They also tend to distinguish sharply between intended and unintended consequences, and to view the latter as unavoidable 'forces'. Yet these forces are themselves the outcome of institutional arrangements and could be changed or modified, as they have been within many jurisdictions. The problem of shielding the weak from these forces is nothing to do with 'natural' processes, and everything to do with the weakness of the voices that call for change. This is hardly surprising. 28 Market institutions magnify the security and so the voices of the haves. Formal democracy provides only slender and partial redress for the weak, and is often lacking. Typical family structures also illustrate the gulf between ideally Independent aeents (whom market structures might suit) and actual powerlessness. These structures often draw a boundary between 'public' and 'private' domains, assign women (wives and daughters) to the 'private' domain and leave them with slender control of resources, but heavy commitments to meet others' needs. They may lack adequate economic entitlements, effective enfranchisement or access to sources of information or debate by which to check or challenge the proposals and plans of more powerful family mmebers. Women in this predicament lack security, and must meet the demands of others (often fathers and husbands) who dominate them. Family structures can enable, even impose, forms of deception and domination. Where women are isolated, secluded. barred from education or wage earning. or have access to information only via the filter of more powerful family members, their judgement is weakened, and their independence stunted. Often this vulnerability may be shielded by matching concern and restraint; often it will not. A rhetoric of familial concern and protective paternalism can easily camouflage callous lack of concern and legitimate deceptive acts and practices. Similar points can be made about victimization. A principle of refusing coercion, for example, basically demands that action not undercut others' agency. If agents were all ideally independent of one another. they might find little difficulty in dissenting from many forms of attempted domination. However, 29 + 30 family structures always limit independence, and usually limit women's independence more. A woman who has no adequate entitlements of her own and insecure rights to a share in family property or income, will not always be coerced, but is always 29 vulnerable to coercion. When her independence is also restricted by family responsibilities she will be even easier to coerce. In these circumstance ostensible consent reveals little; it certainly does not legitimate forms of domination and subordination. Relations of dependence are not always or overtly coercive; but they provide structures of subordination within which it is all too easy to silence or trivialize the articulation of dissent. To guarantee that action is not based on principles which others cannot share, it is necessary to ensure that proposals that affect others are ones from which they. can dissent. Institutionalized dependence tends to make dissent hard or impossible. Those who cannot secure economic independence or who cannot rely on others to take a share in caring for genuine dependents (children,the elderly) cannot easily say 'no' or set their own terms. They must go along with the proposals of the more powerful. Genuine. legitimating consent is. undermined by the very Institutions which most readily secure an appearance of consent. The more relations with others are ones of structured dependence, the more the weak have to depend on trusting that the (relatively) strong will not exercise the advantages which proximity and relations of dependence give them. When the strong reliably show this restraint there may in fact be no injustice within relationships which institutionalize dependence. However, institutions that rely too heavily on the self-restraint of the stronger cannot reliably avoid injustice. Whether the proposals 31 of the strong are economic or sexual, whether they rely on the ignorance and isolation of the weak to deceive them, on their diminished opportunities for independent action, or on the habits of deference and appeasement which become second nature for the weak, they ride on unjust social practices. The weak risk recurrent Injustice unless Institutions are. structured to. secure thS option of refusal or renegotiation of variable arrangements for those whose capacities and. opportunities are limited. A woman who has no entitlements of her own lives at the discretion of other family members who have them, so is likely to have to go along even with proposals she greatly dislikes or Judges imprudent. If she were an ideally independent agent, or even had the ordinary independence and opportunities of those who have entitlements adequate for themselves and their dependents, she could risk dissent from or at least renegotiate variable aspects of proposals that are put by those who control her means of life. Being powerless and vulnerable she cannot readily do either. Hence any consent that she offers is compromised and does not legitimate others' proposals. Just as we would find it absurd to hinge legitimating consent to medical treatment on procedures geared to the cognitive capacities and Independence of a notional 'ideal rational patient', so we should find it absurd to hinge legitimating consent to others' plans on the cognitive capacities and independence of a notional ideal rational impoverished and dependent provider for others. This is not to say that impoverished providers are irrational or wholly dependent or cannot consent. However, it is a matter of taking seriously the ways in which their capacities and their opportunities for action constrain their possibilities 32 tho.se for refusal and negotiation. If they are to be treated with justice, others who interact with them must not rely on these reduced capacities and opportunities to impose their will. Those who do so rely on unjust institutional structures that enable deceit, coercion and forms of victimization. In applying abstract, non-idealizing principles we have to take account not indeed of the actual beliefs, ideals or categories of others, which may reflect unjust traditions, but of others' actual capacities and opportunities to act-- and their incapacities and lack of opportunities. This move does net lead back to relativism: no principle is endorsed because it is actually accepted. Put in general terms we can use modal notions to identify principles, but indicative ones to apply them. The principles of justice can be determined for any possible plurality: for they demand only the rejection of principles that cannot be shared by all members of a plurality. Judgements of the justice of actual situations are regulated but not entailed by these principles. The most significant features of actual situations that must be taken into account in judgements of justice are the security or vulnerability that allow actual others to dissent from and to seek change in variable aspects of the arrangements which structure their lives. 33 FOOTNOTES Z would particularly lika to thank Deborah Fitzmeuriee. James Griffin, Barbara Harriss, Martha Nussbaum and Sara Ruddick for help with various problema that aroae in writing; thia paper. 1. of. Ruddiek, (1980). Her account of women's predicament stressas that it raflecta heavy demands as much as meagre reaources. To be preferred. I think, because it doea not take for granted that the lack of reaourcea la significant because "public" while the pross of others' demanda is leaa so because merely "private". 2. Okln. (1979)1 Chervet, (1982); Pateman. (1988); Jaggar. (1983) 3. Scott, (1986). 4. The differences run the gamut of aocial indicators. Moat dramatically in soma Third World countries women and girls do worse on a constellation of very basic social lndieatorats: they die earlier, have worse health, eat less than other family members. earn leaa and go to school less. See Sen.(1987)( Harriss. (1988) and (forthcoming). 5. The problem la not merely one of reaourcea. Where funds have been adequate for publicly funded welfare provision, this too has been inadequate to eliminate the differences between the economic and political prospects of men and of women. For example, many women in the socialist countries find that they have secured greater equality in productive labour with no reduction in reproductive tasks. This is a reason for doubting that arguments establishing welfare rights—e.g. a right to food— take a broad enough view of disparities between men's and women's prospects. 33 a . Footnotes/ Justice Gender Boundaries 6. E.g. Patemen, (1968); Okin. (1987). 7. Gilligan, (1982)t Kittay and Meyers. (1987)I Lloyd. (1984)t MacMillan. (1982): Ruddick. (1987): Noddings. (1984): Chodorow. (1978). 8. This should not surprise us: "women's experience", as many feminists urge In other contexts. is not unmediateds it mirrors the traditional relegation of women to a "private" sphere. 9. Such approaches can be found in Walzer. (1983)} Sandal. (1982): MacIntyre. (1981) and (1984): Williams (1985) and. perhaps moat surprisingly. Rawls, (1985). For some discussion of the implications of these works for international justice see O'Neill (1988b). 10. Walzer acknowledges that this means that he can "only begin to address the problems raisad by mass poverty in many parts of the globe"i (1983) p.30. Critics may think that his approach in fact preempts answers to questions of global justice. 11. Communitarians can, however, take lesser loyalties seriouslyt where a state is divided into distinct national and ethical communities. those distinct traditions may in fact be the widest boundaries within which issues of Justice can be debated and determined. They could argue for secession from a multinational state: but they cannot say anything about what goes on beyond the boundaries of "our" community. of. Walzer, (1983) p. 319. 12. Rawls, (1985). 13. Rawls, (1970), pp. 11-12. 14. Rawls, (1970) p. 128 15. of. Pateman. (1988): Nioholaon, (1987). 16. See Okin, (1987). pp. 46-7. She considers whether the original position abstracts from knowledge of one's sex. Even if she is right in thinking that Rawls relies on a covertly gendered 34 Footnotes/ Justice Gender Boundaries account of the subject, this idaalisation may hava little affact on his theory of Juatice if the thought axparlmant of the original position has so ralantlassly auprassad differanca that the auppoaad plurality of voices is a fiction. In that case we should read the work as taking an idealised rather than a merely abatrect view of rational choice from the vary start, and as appealing to a aingle ideally informed and dlapassionate figure as thegenerator of the principles of Justice. 17. See Baits, (1979) for an account of dabatea between realists and idealists. 18. Kechana and Nye. (1970): Lupar-Foy (1988). 19. See Shue (1980): (1984)s Alston and Tomasavski (1984): Brown and Shue (1977): Gewirth (198 ): Lupar-Foy (1988): O'Neill (1986). 20. This is the hoary problem of formalism in Kantian ethics. For recant dlaouaaiona of aspacta of the problem see Bittner, (1971) Hoffe. (1977): O'Neill. (1985a) and (1985b) 21. It doea not follow that every coercive act la unjust--some coercion, e.g. the use of sanctions to enforce law--may be the condition of any reliable apace for uncoerced action. In such cases the appropriate exprassion of an underlying principle of rejecting coercion is, surprisingly, and crucially for political argument, one that, taken out of context, might axpress an underlying principle of coarcion. 22. I have put these matters briefly. For more extended treatment see the rafarances for 20. and O'Neill (1988a). 23. Ecelman. (1984) 24. Nicholson. (1987) 25. Scott (1986): Sen. (1987)1 Stiehm. (1983). 35 Footnotes/ Justice Gender Boundaries 26. Hill. (1979): San (1987)t Pfaffar (1985)l Postow (1978-9). 27. I focus here on the obligations of the strong rather than the rights of the waak. Thia la not to deny that agitation and resistance by the wask can halp remind and persuade the strong of their obligations and maka it more difficult for them to rapudlata tham. Howaver, to foous primarily on rights falsifies tha predicament of the wask. who ape in no poaition to ensure that others meat their obligations. 28. Shue. (1984): Harries (1987) and forthcoming. 29. Sea Sen (1987) for a wider account of entitlements. 36 REFERENCES ALSTON, P. (1984) 'International Law and the Human Right to Food' in P. Alston and K. Tomasevski, (eds. ) The. Right to Food Nijhoff, Dordrecht. ALSTON P. and TOMASEVSKI, Nijhoff, Dordrecht. K. (eds.) (1981) The Right to Food. BEITZ, CHARLES (1979) Political Theory and International Relations. Princeton University Press, Princeton, N.J.. BITTNER, RUDIGER (1971) "Maximen" in G. Funke (ed.), Akten des 1. Internationalen Kant-Kongresses. De Gruyter, Berlin. BROWN, PETER and SHUE, HENRY (eds.) (1977) Food Policy: The Responsibility of. the United States in Life and. Death Choices. Free Press, New York. CHARVET, JOHN (1982).Feminism. Dent and Sons, London. CHODOROW, NANCY (1978) The Reproduction of of California Press, Berkeley, California. University EDELMAN, MURRAY (1981) "The Political Language of the Helping Professions" Michael J. Shapiro, (ed.). Language and Politics. N.Y.U. Press, New York. GILLIGAN, CAROL (1982) In a Different Voice: Psychological Theory and Women's Dependence. Harvard University Press, Cambridge, Massachusetts. HARRISS, BARBARA (1987) "Merchants and Markets of Grain in South Asia" in Peasants and. Peasant Societies. (ed.) Teodor Shanin, Blackwell, Oxford. ,1988) South Asia. Female Mortality and Health Care in Papers. Queen Elizabeth House, Oxford. (forthcoming) 'Intrafamily Distribution of Hunger in South Asia', in Dreze J. and Sen, A.K., (eds.), Hunger: Economics and. Policy. Clarendon Press, Oxford. HILL. THOMAS (1973) "Servility and Self Respect", Monist HOFFE, OTFRIED (1977) "Kants kategorischer Imperativ als Kriterium des Sittlichen", Zeltschrift for Philosophiche he Forschung. 31. 351-81. HOFFMAN, STANLEY (1981) Duties. Beyond Borders: on the Limits and Possibilities of. Ethical International Politics, Syracuse University Press, Syracuse, New York. JAGGAR. ALISON M. (1983) Feminist Pontics and Human Nature.. Harvester Press, Brighton. 37 KEOHANE. ROBERT O. AND NYE, JOSEPH S. (eds.) (1970) Transnational Relations and World Politics. Harvard University Press, Cambridge, Massachusetts. KITTAY. EVA FEDERS and MEYERS. DIANE T. (eds.) (1987) women. and Moral Theory. Rowman and Llttlefield, New York. LLOYD, GENVIEVE (1984) The Man of Reason; "Male" and. "Female" in Western Philosophy. Methuen LUPER-FOY, STEPHEN (ed.) (1988) Problems of International Justice. Westview Press, Boulder and London. MACINTYRE. ALASDAIR (1981) After Virtue. Duckworth. London. (1984) ia Patriotism a Virtue?. Philosophy Department, University of Kansas, Lawrence. MACMILLAN, CAROL (1982) Women. Reason and. Nature. Blackwell, Oxford. NICHOLSON, LINDA (1987) 'Feminism and Marx: Integrating Kinship with the Economic' in Seyla Benhabib and Drucilla Cornell, (eds.). Feminism as Critique. Polity Press, Cambridge. NODDINGS NELL (1984) Caring. University of California Press, Berkeley, California. OKIN. SUSAN MILLER (1979) Women in Political Thought. Princeton University Press,Princeton, New Jersey. (1987) "Justice and Gender", Philosophy .and Public Affairs. 16, 1987. 12-72. O'NEILL. ONORA (1986) Faces of Hunger! an Essay on Poverty Justice and Development. George Allen and Unwin, London. (1985a) "Consistency in Action" in Nelson Potter and Mark Timmons, (eds.). Morality and. Universality; Essays in Ethical Universalizability. Reidel, Dordrecht, 159-86 (1985b) "Between Consenting Adults", Philosophy and Public Affairs, 14, 253-77 (1988a) "Children's Rights and Children's Lives", Ethics. 98, 445-463. (1988b) " E t h i c a l R e a s o n i n g and I d e o l o g i c a l P l u r a l i s m " , E t h i c s . 9 8 . 7 0 5 - 7 2 2 . PATEMAN, CAROLE, (1988) The Sexual Contract. Polity Press, Cambridge. PFEFFER. RAYMOND (1985) The Responsibility of Men for the Oppression of w o m a n . Journal of_ Applied Philosophy. 2. 217-229. POSTOW, B.C. (1978-9) 'Economic Dependence and Self-respect', The Philosophical forum, x, 181-201. 38 RAWLS, JOHN (1970) A Theory of_ Justice. Harvard University Press. Cambridge. Massachusetts. (1985) "Justice as Fairness: Political not Metaphysical". Philosophy, and. Public Affairs., 14 223-251. RUDD1CK. SARA (1980) "Maternal Thinking", Feminist Studies. 6, (1987) "Remarks on the Sexual Politics of Reason" in Eva Feders Kittay and Diane T. Meyers, (eds. ) Women And. Moral Theory. Rowman and Littlefield, N.Y. SANDEL, MICHAEL (1982) Liberalism and the Limits of Justice. Cambridge University Press, Cambridge. SCOTT, ALISON MACEWEN (1986) in Rosemary Crompton and Michael Mann, (eds.), "Industrialization, Gender Segregation and Stratification Theory", in Gender .and Stratification. Polity Press, Cambridge. SEN, AMARTYA K. (1981) Poverty and Famines; An Essay on Entitlement and Deprivation. Clarendon Press. Oxford. (1987) Gender and Cooperative Conflicts. Working Paper of the World Institute for Development Economics Research, WIDER, United Nations University, Helsinki. SHUE HENRY (1980) Basic. Rights; Subsistence. Affluence and U.S. Foreign Policy. Princeton University Press, Princeton, New Jersey. (1981) 'Exporting Hazards', in Peter Brown and Henry Shue (eds.) (198'), 'The Interdependence of Duties', in P. Alston and K. Tomasevski, (eds.) SINGER, PETER (1972) 'Famine, Affluence and Morality', Philosophy and. Public Affairs STIEHM. JUDITH HICKS (1983) "The Unit of Political Analysis: Our Aristotelian Hangover" in Sandra Harding and Merrill B. Hintikka eds. , Discovering Reality; Feminist Perspectives on Epistemology. Metaphysics. Methodology and Philosophy of Science. Reidel. Dordrecht, 31-43. WAL2ER, MICHAEL (1983) Spheres of. Justice: A Defence of Pluralism and Equality. Martin Robertson, Oxford. WILLIAMS, BERNARD (1985) Ethics and the Limits of Philosophy. Fontana. London. 39 WIDER WORKING PAPERS P 1. Amartya Sen: Food, economics and entitlements, February 1986 P 2. Nanak Kakwani: Decomposition of normalization axiom in the measurement of poverty: a comment, March 1986 P 3. Pertti Haaparanta: The intertemporal effects of international transfers, April 1986 P 4. Nanak Kakwani: Income inequality, welfare and poverty in a developing economy with applications to Sri Lanka, April 1986 P S. Pertti Haaparanta: and Juha Kahkonen: Liberalization of Capital Movements and Trade: Real Appreciation, Employment and Welfare, August 1986 Pertti Haaparanta: Dual Exchange Markets and Intervention, August 1986 Pertti Haaparanta: Real and Relative Wage Rigidities - Wage Indexation* in the Open Economy Staggered Contracts Model, August 1986 Nanak Kakwani: On Measuring Undernutrition, December 1986 Nanak Kakwani: Is Sex Bias Significant? December 1986 Partha Dasgupta and Debraj Ray: Adapting to Undernourishment: The Clinical Evidence and Its Implications, April 1987 Bernard Wood: Middle Powers in the International System: A Preliminary Assessment of Potential, June 1987 Stephany Griffith-Jones: The International Debt Problem - Prospects and Solutions, June 1987 Don Patinkin: Walras' Law, June 1987 Kaushik Basu: Technological Stagnation, Tenurial Laws and Adverse Selection, June 1987 Peter Svedberg: Undernutrition in Sub-Saharan Africa: A Critical Assessment of the Evidence, June 1987 S. R. Osmani: Controversies in Nutrition and their Implications for the Economics of Food, July 1987 Frederique Apffel Marglin: Smallpox in Two Systems of Knowledge, Revised, July 1987 Amartya Sen: Gender and Cooperative Conflicts, July 1987 Amartya Sen: Africa and India: What do we have to leam from each other? August 1987 Kaushik Basu: A Theory of Association: Social Status, Prices and Markets, August 1987 Kaushik Basu: A Theory of Surplus Labour, August 1987 Albert Fishlow: Some Reflections on Comparative Latin American Economic Performance and Policy, August 1987 Sukhamoy Chakravarty: Post-Keynesian Theorists and the Theory of Economic Development, August 1987 Georgy Skorov: Economic Reform in the USSR, August 1987 Amartya Sen: Freedom of Choice: Concept and Content, August 1987 Gopalakrishna Kumar: Ethiopian Famines 1973-1985: A Case-Study, November 1987 Carl Riskin: Feeding China: The Experience since 1949, November 1987 Martin Ravallion: Market Responses to Anti-Hunger Policies: Effects on Wages, Prices and Employment, November 1987 S. R. Osmani: The Food Problems of Bangladesh, November 1987 Martha Nussbaum and Amartya Sen: Internal Criticism and Indian Rationalist Traditions, December 1987 Martha Nussbaum: Nature, Function and Capability: Aristotle on Political Distribution, December 1987 Martha Nussbaum: Non-Relative Virtues: An Aristotelian Approach, December 1987 Tariq Banuri: Modernization and its Discontents A Perspective from the Sociology of Knowledge, December 1987 Alfred Maizels: Commodity Instability and Developing Countries: The Debate, January 1988 Jukka Pekkarinen. Keynesianism and the Scandinavian Models of Economic Policy, February 1988 Masahiko Aoki: A New Paradigm of Work Organization: The Japanese Experience, February 1988 Dragoslav Avramovic: Conditionality: Facts, Theory and Policy - Contribution to the Reconstruction of the International Financial System, February 1988 Gerald Epstein and Juliet Schor: Macropolicy in the Rise and Fall of the Golden Age, February 1988 Stephen Marglin and Amit Bhaduri: Profit Squeeze and Keynesian Theory, April 1988 Bob Rowthom and Andrew Glyn: The Diversity of Unemployment Experience Since 1973, April 1988 Lance Taylor: Economic Openness - Problems to the Century's End, April 1988 Alan Hughes and Ajit Singh: The World Economic Slowdown and the Asian and Latin American Economies: A Comparative Analysis of Economic Structure, Policy and Performance, April 1988 Andrew Glyn, Alan Hughes, Alan Lipietz and Ajit Singh: The Rise and Fall of of the Golden Age, April 1988 Jean-Philippe Platteau: The Food Crisis in Africa: A Comparative Structural Analysis, April 1988 Jean Dreze: Famine Prevention in India, May 1988 Peter Svedberg: A Model of Nutrition, Health and Economic Productivity, September 1988 Peter Svedberg: Undernutrition in Sub-Saharan Africa: Is There a Sex-Bias?, September 1988 S.R. Osmani: Wage Determination in Rural Labour Markets: The Theory of Implicit Co-operation, December 1988 S.R. Osmani: Social Security in South Asia, December 1988 S.R. Osmani: Food and the History of India - An 'Entitlement' Approach, December 1988 P 6. P 7. P 8. P 9. P 10. P 11. P 12. P 13. P 14. P 15. P 16. P 17. P 18. P 19. P 2 0 . P 2 1 . P 2 2 . P 2 3 . P 2 4 . P 2 5 . P 2 6 . P 2 7 . P 2 8 . P 2 9 . P 3 0 . P 3 1 . P 3 2 . P 3 3 . P 3 4 . P 3 5 . P 3 6 . P 3 7 . P 3 8 . P 3 9 . P 4 0 . P 4 1 . P 4 2 . P 4 3 . P 4 4 . P 4 5 . P 4 6 . P 4 7 . P 4 8 . P 4 9 . P 5 0 . WP 51. Grzegorz W. Kolodko: Reform, Stabilization Policies, and Economic Adjustment in Poland, January 1989 WP 52. Dariusz Rosati and Kalman Mizsei: Adjustment through Opening of Socialist Economies, January 1989 WP 53. Andrei Vemikov: Reforming Process and Consolidation in the Soviet Economy, January 1989 WP 54. Adam Torok: Stabilisation and Reform in the Hungarian Economy of the late 1980s, March 1989 WP 55. Zhang Yuyan: Economic System Reform in China, March 1989 WP 56. Amitava Krishna Dutt: Sectoral Balance: A Survey, March 1989 WP 57. Robert Pringle: Financial Markets and Governments, June 1989 WP 58. Marja-Liisa Swantz: Grassroots Strategies and Directed Development in Tanzania: The Case of the Fishing Sector, August 1989 WP 59. Aili Mari Tripp: Defending the Right to Subsist: The State vs. the Urban Informal Economy in Tanzania. August 1989 WP 60. Jacques H. Dreze, Albert Kervyn de Lettenhove, Jean-Philippe Platteau, Paul Reding: A Proposal for "Cooperative Relief of Debt in Africa" (CORDA), August 1989 WP 61. Kaushik Basu: Limited Liability and the Existence of Share Tenancy, August 1989 WP 62. Tariq Banuri: Black Markets, Openness, and Central Bank Autonomy, August 1989 WP 63. Amit Bhaduri: The Soft Option of the Reserve Currency Status, August 1989 WP 64. Andrew Glyn: Exchange Controls and Policy Autonomy - The Case of Australia 1983-88, August 1989 WP 65. Jaime Ros: Capital Mobility and Policy Effectiveness in a Solvency Crisis. The Mexican Economy in the 1980s, August 1989 WP 66. Dan W. Brock: Quality of Life Measures in Health Care and Medical Ethics, August 1989 WP 67. Robert Erikson: Descriptions of Inequality. The Swedish Approach to Welfare Research, August 1989 WP 68. Onora O'Neill: Justice, Gender and Internationa] Boundaries, August 1989 
work_43zhqawqvjgwtfiyeyb7mbbk2u	----	King’s Research Portal DOI: 10.1093/ijtj/ijw022 Document Version Peer reviewed version Link to publication record in King's Research Portal Citation for published version (APA): Kerr, R. C. (2017). Tyrannies of Peace and Justice? Liberal Peacebuilding and the Politics and Pragmatics of Transitional Justice. International Journal Of Transitional Justice, 10(3), 176-185. https://doi.org/10.1093/ijtj/ijw022 Citing this paper Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination, volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are again advised to check the publisher's website for any subsequent corrections. General rights Copyright and moral rights for the publications made accessible in the Research Portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognize and abide by the legal requirements associated with these rights. •Users may download and print one copy of any publication from the Research Portal for the purpose of private study or research. •You may not further distribute the material or use it for any profit-making activity or commercial gain •You may freely distribute the URL identifying the publication in the Research Portal Take down policy If you believe that this document breaches copyright please contact librarypure@kcl.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1093/ijtj/ijw022 https://kclpure.kcl.ac.uk/portal/en/publications/tyrannies-of-peace-and-justice-liberal-peacebuilding-and-the-politics-and-pragmatics-of-transitional-justice(ab0f1e18-02ce-458e-ac66-4b3d9e3b5e7c).html https://doi.org/10.1093/ijtj/ijw022 1 Review essay: Tyrannies of Peace and Justice? Liberal Peacebuilding and the Politics and Pragmatics of Transitional Justice Rachel Kerr, King’s College London Mandy Turner and Florian P. Kühn (eds), The Politics of International Intervention: The Tyranny of Peace. Routledge Studies in Intervention and Statebuilding. (Abingdon: Routledge, 2016). ISBN: 978-1-138-89127-2 (hbk). 288pp. Annie R. Bird, US Foreign Policy on Transitional Justice (New York: Oxford University Press, 2015). ISBN: 978-0-199-33841-2 (hbk). 223pp. Laura Davis, EU Foreign Policy, Transitional Justice and Mediation: Principle, Policy and Practice. Routledge Studies in European Security and Strategy. (Abingdon: Routledge, 2014). ISBN: 978-0-415-74916-9 (hbk). 219pp. Transitional Justice has come to be regarded as a critical element of peacebuilding - a vital ‘tool’ in the United Nations’ peacebuilding kit. Over a decade ago, the then Secretary-General, Kofi Annan, formally recognised peace, justice and democracy as ‘mutually reinforcing imperatives’, 1 and argued that some form of transitional justice mechanism was crucial for societies emerging from violent conflict. The question was not whether to pursue TJ, but rather how. His 2011 Report on ‘The rule of law and transitional justice in conflict and post-conflict societies’, sought to put this into practice, focusing on the integration of TJ with related development and peacebuilding activities, such as judicial and security sector reform and rule of law and human rights programming. TJ in this context was not simply conceived of as a tool for addressing the past but to build a better future. 2 In this context, some have argued that TJ should address structural violence rather than focus exclusively on its legal and political manifestations.3 In a 2008 special issue of this journal, Rama Mani asked whether transitional justice could really afford not to concern itself with addressing patterns of social and economic injustice that are the root causes of conflict.4 Similarly, Wendy Lambourne set out wider conception of the relationship between transitional justice and peacebuilding, and proposed a model of transformative 1 ‘The rule of law and transitional justice in conflict and post-conflict societies’, Report of the Secretary General, S/2004/616, 23 August 2004. 2 Pablo de Grieff, ‘Transitional Justice, Security and Development: Security and Justice Thematic Paper’, World Development Report Background Paper (2011). See also, ‘The rule of law and transitional justice in conflict and post-conflict societies’, Report of the Secretary General, S/2011/634, 12 October 2011. 3 Rosemary Nagy, ‘Transitional Justice as a Global Project: Critical Reflections’, Third World Quarterly 29/2 (2008): 275-289. 4 Rama Mani, ‘Editorial: Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development’, International Journal of Transitional Justice 2 (2008): 253-265. 2 justice involving a ‘syncretic approach’ to restorative and retributive justice, recasting TJ it as part of a long-term process of transformation in the political, psychosocial and economic realms.5 The integration of TJ into the peacebuilding agenda is not without its critics, however. On the one hand, it has led to the expansion and recasting of the goals ascribed to TJ mechanisms which, coupled with the extremely challenging contexts in which it has been implemented, in societies riven by decades of conflict and with urgent security and development needs, has led to a considerable ‘gap’ between expectations and reality. On the other, if Transitional Justice and peacebuilding are inextricably intertwined, so are its critiques. In 2010, Roland Paris observed that the liberal peacebuilding project was at somewhat of a crossroads, having gone from ‘exuberance’ in the heady optimism of the early- to mid-1990s to its ‘denigration’ by ‘hyper-critical’ scholars who argue that it is fundamentally destructive and illegitimate, and has done more harm than good.6 Transitional justice as a field of study and practice appears to be at a similar crossroads. Rather than dogmatism, however, the debate has given space to fresh and critical voices – including recently in the pages of this journal – and reflection on the normative and political underpinnings of transitional justice embedded in both the liberal conception of human rights and liberal peacebuilding.7 To what extent does TJ suffer from the same weaknesses as the liberal peacebuilding project with which it is associated? Is there a ‘tyranny of justice’ embedded in the ‘tyranny of peace’, as some would have it? Or, like critiques of liberal peacebuilding are those of transitional justice, while often warranted, also exaggerated? 8 The three books under review address this question from very different vantage points. The Politics of International Intervention, edited by Mandy Turner and Florian P. Kühn, mounts a trenchant critique of the liberal ‘tyranny of peace’ whilst the other two volumes, by Annie Bird and Laura Davis, examine the TJ policies of liberal states – Bird’s focus is on US policy, while Davis sets her target on the EU. What all three books have in common is that they illustrate, in different ways, is an essential dilemma for transitional justice interventions, which is that in spite of what most take to be laudable motives driven by normative and pragmatic concerns in pursuit of justice and peace, the fruits of those labours are not always (ever?) what was intended. Rather, both TJ and peacebuilding are processes of highly contingent and imperfect transition, in which, just as there can be no one-size-fits- all solution, our notions of what constitutes success and failure also need to be carefully calibrated and contextualised. Transitional justice and the ‘tyranny’ of the liberal peace The Politics of International Intervention, edited by Mandy Turner and Florian P. Kühn, critically explores predominantly Western practices of peacebuilding and the politics that drive them before turning the tables around and exploring how communities who are subject to the ‘tyranny of peace[building]’ respond to, and experience international intervention. What Turner and Kühn’s book seeks to understand is how something apparently so normatively desirable – peace – has turned out so badly. That this has 5 Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’. 6 Paris, Roland, ‘Saving Liberal Peacebuilding’, Review of International Studies 30/2 (2010): 338. 7 See, for example, Mutua, Makau, ‘What is the future of Transitional Justice?’, International Journal of Transitional Justice 9/1 (2015): 1-9; and Robins, Simon, ‘Mapping a Future for Transitional Justice by Learning from Its Past’, International Journal of Transitional Justice 9/1 (2015): 181-190. 8 Paris, Roland, ‘Saving Liberal Peacebuilding’, Review of International Studies 30/2 (2010): 337-365. 3 flummoxed policy-makers is illustrated neatly in the opening page of the book, with a quote from Tony Blair, former UK Prime Minister and Middle East Quartet representative, reflecting on interventions in Afghanistan, Iraq and Libya and support for the ‘Arab Spring’: ‘At first we jumped in to offer our support to those on the street. We are now bemused and bewildered that it hasn’t turned out quite how we expected.’ (p. 1) Whilst Turner and Kühn vehemently reject Blair’s diagnosis, they share his assessment of the symptoms – the pursuit of peacebuilding has indeed turned out badly as the region continues to be wracked by instability, violence and extremism (p. 1). However, whereas Blair locates the reason for failure in the broader ‘Titanic struggle’ between modernity and radical Islam, Turner and Kühn plant the blame firmly at the feet of the interveners rather than the intervened. Failure is cast not as a result of local inability to grasp what is traditionally cast as a benevolent project of liberal peacebuilding, but rather is located in the practices which, in contrast to its principles, reveal liberal peacebuilding to be a ‘hegemonic, tyrannical project’, engendering violent resistance (p. 2). Cast in this way, the liberal peace, like the colonial ‘mission civilisatrice’ (p. 8) before, and the ‘war on terror’ after, is but one of a series of justifications for Western violence in pursuit of the maintenance of power and position in the international system (p. 6). The book is organised in two sections. The first, ‘Exploring Peace’ is more conceptual, focused on the origins and development of the idea of the ‘liberal peace’. The second, ‘Imposing Peace’ focuses on particular instances, or interventions. The book broadens the scope of ‘intervention’ to include a ‘full spectrum of tools and policies’, including military operations, blockades, sanctions, aid and economic policies, but, notably, it does not encompass international judicial intervention or transitional justice as an element of the peacebuilding ‘toolkit’, so it is for us to extrapolate. Certainly, Turner and Kühn’s critique finds resonance in critiques of TJ.9 For example, Simon Robins tied TJ firmly to ‘liberal hegemony’, arguing that the goals of TJ ‘align perfectly with the integration of transitional states into global markets’.10 Moreover, like liberal peacebuilding, transitional justice interventions have been characterised by top-down approaches focused on the state and based on a checklist of TJ ‘tools’.11 In contrast, Robins calls for a ‘post-liberal, nonideological approach to addressing legacies of past violence’ that engages with the ‘everyday realities’ of those most affected by it.12 The challenge, however, is to find the right balance between, at one extreme, co-opting local actors through participation and consultation to embrace the values and mechanisms of TJ as currently practiced, and at the other, allowing the politics of resistance to derail TJ in the name of cultural relativism. In this context, Turner and Kühn’s work is important given that it explicitly rejects accounts that, in seeking to reverse the traditional privileging of the ‘international’, instead romanticise the ‘local’ as being somehow more ‘authentic’ (p. 5). Bruce Charbonneu’s chapter, for example, problematizes the dichotomy of ‘local’ and 9 See, for example, Gready, Paul and Simon Robins, ‘From Transitional to Transformative Justice: A New Agenda for Practice’, International Journal of Transitional Justice 8/3 (2014): 1-23; Millar, G. M., An Ethnographic Approach to Peacebuilding: Understanding Local Experiences in Transitional States (Routledge, Abingdon, 2014); Hopgood, Stephen, The Endtimes of Human Rights (Ithaca, NY: Cornell University Press, 2013). 10 Robins, Simon, ‘Mapping a Future for Transitional Justice by Learning from Its Past’, International Journal of Transitional Justice 9/1 (2015): 186. 11 Sharp, D, ‘Interrogating the peripheries: the preoccupations of fourth-generation transitional justice’, Harvard Human Rights Journal (2013) 26: 149-178. 12 Robins, Simon, ‘Mapping a Future for Transitional Justice by Learning from Its Past’, International Journal of Transitional Justice 9/1 (2015): 187. 4 ‘international’ and ‘intervener’ and ‘intervened’ (Chapter 9). Rather, liberal peacebuilding, and the practices of transitional justice embedded in it, ought to be seen in the context of broader historical and conceptual understandings of intervention, justice, peace and resistance, which constitute, and are constitutive of, the international and domestic politics of interventions. This historical understanding is developed in Chapter 1, by Florian Kühn. For Kühn, the liberal peace is essentially about the expansion and protection of capitalist social relations and institutions – a combination of liberal internationalism and neoliberalism that ‘renders alternative forms of peace unthinkable’ (Chapter 1). In Chapter 2, Scott Kirsh and Colin Flint dismantle the war/peace dichotomy at the heart of the concept of ‘post-conflict reconstruction’, positing it as a continuation of violence through the imposition of a particular form of state, economy, culture and society. In Chapters 3 and 4, Phillip Cunliffe and Michael Pugh critique the practice of the UN. Cunliffe takes issue with the UN’s claim to be implementing peacebuilding that consciously differs from practices of colonialism, demonstrating that colonialism remains the ‘spectre at the feast’ as UN practices restrict the range of options available, forcing conformity with liberal political organisation and a market capitalist society. Pugh’s chapter follows on by demonstrating that a UN-mandated peace is an ‘aggressive peace’, characterised by militarised violence and a political economy of peacebulding. Finally, in this Part, Heidi Hudson, demonstrates how the appropriation of women as passive ‘victims’ (of sexual and gender-based violence) in the discourse of liberal peacebuilding perpetuates women’s disempowerment. This theme is emerging as an alternative narrative in the transitional justice literature, seeking to dismantle dominant gendered narratives of transitional justice interventions and to disengage the notion of women solely as passive ‘good’ victims and focus instead on structural inequalities and their role as agents.13 Part 2 comprises a set of eight case studies of international intervention, all in the post- Cold war era of liberal peacebuilding. In Chapter 6, Caroline Hughes analyses Cambodia; in Chapter 7 Mandy Turner looks at Palestine; Chapter 8 by Astri Surkhe examines the politics of international intervention in Afghanistan; Chapter 9 by Bruce Charbonneau analyses the series of interventions leading to eventual regime change (and referral to the ICC) in Cote d’Ivoire; in Chapter 10, Toby Dodge dissects the intervention in Iraq in the context of ideational understandings of the nature of Saddam’s regime by policy makers in the West; Chapter 11 by Nicolas Pelham shows how the lessons learned from the process of de-Ba’athification were mis-applied in Libya, where the ‘old guard’ were integrated, alienating rebel groups in the process; Chapter 12 by Bruno Charbonnaeu and Jonathan Sears focuses on the French intervention in Mali, where the discourse of global Islamic terrorism overlay context-specific dynamics that ought to have been more fully addressed; and finally, in Chapter 13, Christopher Phillips analyses international intervention (and non-intervention) in Syria. These studies are detailed and instructive and, while they do not focus specifically on transitional justice policies and practices, they are nevertheless significant in contributing to understanding of the context in which transitional justice interventions are made, and in shedding light on an essential dilemma in transitional justice – in particular international criminal justice – which is that the outcomes are not always as one would hope or expect. An essentially 13 Campbell, Kirsten, ‘The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia’ International Journal of Transitional Justice (2007) 1 (3): 411-432; and Ramona Vijeyarasa, ‘Women at the Margins of International Law: Reconceptualizing Dominant Discourses on Gender and Transitional Justice’ International Journal of Transitional Justice (2013) 7 (2): 358-369. 5 normative project to deliver justice and, with it, peace, often delivers neither to the satisfaction of the communities experiencing judicial intervention, or indeed to those intervening who do not see measurable ‘impact’. As the contributions to Turner and Kühn’s book make clear, in order to understand this, we need to take a much closer look at the politics and practices of the communities in question, and dissect the ways in which international actors influence particular contexts and interact with local actors in ways that are not always directly visible (p. 3). In focusing on US and policy, respectively, Bird and Davis go some way toward this goal, showing how TJ policy is formulated by liberal states with – arguably – shared liberal norms and cultures but different political and pragmatic concerns. What they do not engage with however, is the ‘domestic politics’ of transitional justice – the politics of resistance and co-optation. Liberal tyranny in practice? US policy Annie Bird’s US Foreign Policy on Transitional Justice tells us what US policy on transitional justice looks like, how it is formulated and what informs it. As Bird makes clear, the US is a key player in the field of transitional justice – and in particular international criminal justice. It is one of the largest donors and contributes ‘in kind’ technical expertise and political support at critical junctures. Bird even goes so far as to say that without US sponsorship, many transitional justice measures would not have been established (p. 150). Bird attributes US policy to a mix of normative and pragmatic motives and concerns, casting it as ‘symbolic, retributive and strategic’ (p. 2). Symbolic, in that it resonates with the powerful role that the notion of ‘justice’ plays in American society; retributive, because retribution is generally preferred over other forms of transitional justice, which may have a more restorative function, such as truth commissions, which is also predicated in the American faith in the rule of law. And strategic because the normative drive for justice is tempered by a more pragmatic balancing of interests in the US foreign policy bureaucracy (p. 151). The book’s major contribution is to detail how this balancing of interests and values plays out. The book’s strength is its detailed account of the three case studies – Cambodia, Liberia and Columbia – and its account of the multiple sources that underpin US foreign policy (p. 153). What all three cases have in common is a legacy of US interest and involvement, and the fact that the US was key stakeholder, influencing transitional justice policy and practice. These chapters are rich in detail regarding the formulation of US policy and the machinations of the US political apparatus. A really intriguing aspect is the role of individuals – a story that is less often told but nevertheless quite significant is the story not of epistemic communities,14 but rather what we might term ‘epistemic individuals’ in the world of international criminal justice. Just as international judges have a uniquely privileged and powerful position from within international courts to influence the development of what has hitherto been a lightly adjudicated body of law, those involved at the legal-political interface, creating courts and drafting statutes have also had significant influence. As have, of course, the Chief Prosecutors of the various courts and tribunals, and Bird points out similarities between Jackson and Crane, for example (p. 91). Other familiar figures are also in evidence, and many of these gave interviews to Bird, offering considerable insight not only into the US policy-making process, but also into their own perceptions and role. This includes of course the 14 Schiff, Benjamin, Building the International Criminal Court (Cambridge: Cambridge University Press, 2008), 51. 6 testimonies of key players in US transitional justice policy as Ambassadors at Large for War Crimes Issues, David Scheffer, Pierre Prosper, Clint Williamson, and Stephen Rapp (interview list, p. 176). Whilst in each case, there is a legacy of US interest and involvement; the contexts are of course otherwise quite different. In Cambodia, the US, having opposed earlier efforts to seek accountability for the crimes committed by the Khmer Rouge, the US eventually lent their support to a UN-brokered deal with the Cambodian Government to establish a Tribunal. In Liberia, the picture was complicated by the establishment of the Special Court for Sierra Leone, which while it did not have jurisdiction for Liberia, did extend its jurisdiction to Liberia’s President Charles Taylor for crimes committed in Sierra Leone. The story of justice in Liberia that Bird tells is largely concerned with the story of how Taylor was eventually brought to trial by the Special Court, sitting in special session at the ICC in The Hague. Finally, in Colombia transitional justice policy was formulated in the context of a fragile negotiated end of years of civil war, at various times characterised by the Colombian and US governments as a counter-narcotics, counter-terrorism or counter-insurgency (p. 125-6). All three cases involved compromise and careful balancing of interests of justice and peace. Missing from her analysis, however, is a more historical and contextualised understanding of US engagement in Liberia, that might have been better informed by applying the critique offered in Turner and Kühn’s book, which would cast US transitional justice policy in Liberia, for example, as not simply a product of balancing of interests at play, but constituted by, and constitutive of, the quasi-colonial legacy of US involvement in Liberia, and conditioned the relationship between international – in this case the US – and local politics. In all three cases, one could argue that not only were US interests directly involved, beyond a normative interest in justice and peace for the countries concerned; US policy was also conditioned by the historical legacy of US involvement and the policies and prejudices inherent in that legacy, some of which created the conditions for human rights abuses to be tolerated in the first place. The book’s primary focus is the story of US involvement in transitional justice, and it tells this story well in respect of the three cases, but the narrative approach somewhat precludes a more critical approach to US foreign policy formulation on a subject in which it had varying degrees of interest and involvement, and in the end, was also subject to the whim of others, in particular those more directly involved and implicated in the different cases, such as the Governments of Cambodia, Liberia and Columbia. It also precludes discussion of the constituencies at which transitional justice is aimed, as Bird acknowledges in her conclusion, when she argues that the US approach needs to take better account of the preferences and needs of these (victims) populations (p. 156). The overarching focus on the US as the driver of transitional justice interventions means that there is a tendency for Bird to cast the results as products of shifts in US policy, rather than the complex mix of international and domestic dynamics, and the discussion tends to privilege the role of the US over other parties – states and international organisations. Early on, for example, in discussing the adoption of a more robust policy on arresting ICTY indictees, Bird makes no mention of the pivotal role played by the UK Government in deciding to carry out the first detention operation by international forces in Bosnia in July 1997. And, in discussion of the negotiations leading to the adoption of the Justice and Peace Law in Colombia, and its implementation, no mention is made of the role of the ICC Prosecutor, who exerted influence by exerting its positive 7 complementarity mandate – an aspect of the ICC that merits close attention as it is here that it has the opportunity to make a difference by encouraging national level prosecutions, and also here that it operates at the nexus of law and politics, having carefully to balance political and legal considerations to determine the ‘interests of justice’. Taking up Turner and Kühn’s critique, this book perpetuates an understanding of transitional justice as part of a project that can be implemented as part of the dissemination of liberal values, and in pursuit of a liberal peace, rather than an examination of how the values that inform US policy are mediated in implementation, not just by constraints and contradictions in the US political machinery, but also by politics on the ground. It is also uncritical of the values embedded in US policy, in particular the system of retributive justice which others have argued is at the centre of a degrading system of coercion and control that perpetuates racial divisions and inequality in the US.15 The book is disappointingly thin on the historical evolution of US foreign policy. It relies on Gary Bass’ earlier study of international justice policy, Stay the Hand of Vengeance, although it does take his argument about legalism driving US policy and develop it into one about symbolism and retribution. It would have been interesting and worthwhile to delve a little deeper into the mechanics of foreign policy formulation around Nuremberg and especially in the years between Nuremberg and the manifestation of its legacy, with the establishment of the ICTY, in 1993. This is a story that hasn’t properly been told, and would, I suspect, be informative. More attention might also have been given to the negotiations leading to the Rome Statute and establishment of the ICC, and in particular the signing and un-signing of the Rome Statute. The period leading up to, and during the negotiations at Rome is crucial to understanding the mix of legalism, politics and pragmatism that underpins US policy.16 Opposition to the court was not simply a case of wanting to protect US citizens from its jurisdiction but predicated on a different conception of what the court should be – an instrument of international peace and security that could be wielded when appropriate for the interests of peace, rather than a separate instrument of international justice, with the power to act when it saw fit.17 A more niggling point is that the book repeats inaccuracies (the figure of 200,000 killed is cited for Bosnia, whereas it was closer to 100,000, p. 37)18 and suffers from an uncritical repetition of familiar tropes attributed to ‘observers’ – that the ICTY was to relieve obligation to do more (p. 40), that support for the SCSL was part of opposition to the ICC (p. 42), and that the use of the word genocide by then Secretary of State Colin Powell in respect of Darfur was what led to the opening up on an inquiry (p. 42). All of these points could be interrogated more closely, revealing greater nuance than is acknowledged here. Bureaucratic politics and a pragmatic approach: the EU Laura Davis’, EU Foreign Policy, Transitional Justice and Mediation, provides us with a detailed and nuanced account of the formulation of transitional justice policy in the EU in the context of a solid understanding of the complex and bureaucratic processes of foreign 15 George Nickolas Fourlas, ‘No Future without Transition: A Critique of the Liberal Peace’, IJTJ (2015) 9/1: 109-126. 16 Kaufman, Zachary, United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics (Oxford University Press 2016). 17 See, Kerr, Rachel and Eirin Mobekk. Peace and Justice: Seeking Accountability After War (Cambridge: Polity, 2007). 18 According to the Bosnian Book of the Dead, complied by the Sarajevo Research and Documentation Centre, see: http://www.balkaninsight.com/en/article/justice-report-bosnia-s-book-of-the-dead. http://www.balkaninsight.com/en/article/justice-report-bosnia-s-book-of-the-dead 8 policy formulation more broadly. Viewed through a normative vs. pragmatism lens, EU foreign policy comes across as resolutely pragmatic. Like US policy, it is underpinned by liberal principles at the core of the EU project – respect for human rights and the rule of law – but implemented in a more ad hoc and contextualised manner in response to changes on the ground rather than any broader strategic shifts. Davis discusses EU foreign policy in the context of the transitional justice literature and shows how the EU is as muddled as the rest of us when it comes to determining what it is and how it should best be applied. As she demonstrates, TJ is not embedded in a common foreign and security policy, but rather exists at the margins – so it is not an integral part of intervention but is nevertheless an important element. There is no overarching policy, but rather a piecemeal approach to transitional justice, which, Davis argues, poses significant challenges to effective engagement (p. 73). Davis does not spend much time on the EU’s complementarity strategy for the Western Balkans, which is surprising, given that it was so significant in the story of transitional justice in that region. It was an innovative approach, born of both normative and pragmatic motives – to ensure accountability and, it was hoped, contribute to reconciliation, and also to foster political change and speed the transition to stable democracy. The outcome was mixed: it enabled the ICTY to function and forced some change, but there was also blowback, the results of which are now evident in the resurgence of nationalist parties, although that cannot entirely be laid at conditionality’s door. The major contribution this book makes, however, is its careful and detailed case study of EU involvement in transitional justice interventions, policy and practice in the DRC. The DRC makes an excellent case study because as Davis makes clear, the EU was so intimately involved, and all of its crisis management and conflict prevention instruments were deployed (p. 127). The DRC also provided a testing ground for a range of transitional justice mechanisms – referral to the ICC, domestic prosecutions, a limited amnesty regime, and a truth and reconciliation commission, and, as Valerie Arnould explains elsewhere, it was domestic rather than international actors who largely defined the transitional justice agenda in the DRC, motivated by overlapping political and moral concerns about legitimacy, the desire to frame a particular historical narrative, the appeasement of inter-communal tensions, the denunciation of foreign aggression and pragmatic imperatives dictated by on-going violence in the east. 19 Davis expands the discussion of transitional justice mechanisms also to encompass reform of the security and justice systems, which adds another important dimension to our understanding, especially in the context of the role and function of TJ in relation to peacebuilding or post-conflict reconstruction. The chapter on the DRC provides a detailed account of all of the various interventions made by the EU, but the bigger picture supports the observation made earlier, that the lack of an overarching policy and the implementation of a piecemeal approach was exposed in the DRC. Gaps between principle and practice widened in respect of security sector reform, where the provision of technical assistance took precedence over engaging the Congolese authorities on human rights issues (p. 158). In other areas, there was a ‘policy vacuum’ (for example, on the question of amnesties in peace negotiations, p. 158), but not an absence of 19 Arnould, Valerie, The Politics of Transitional Justice and Peacebuilding: The Case of the Democratic Republic of the Congo (London: Routledge, 2015). 9 principle, so that in the absence of clear policy guidelines, the EU Special Representative followed a principled approach consistent with support for accountability (p. 181). Her conclusion is insightful. Whilst overall, Davis argues that EU policy is unevenly applied and implemented; on the other hand, it is consistently inconsistent (my emphasis) across the different pillars (p. 162). Arguably, this allows for greater flexibility, but equally Davis argues that stronger coherence and better coordination not only internally between EU instruments, but also between the EU and other international actors might have enabled domestic actors who prioritised transitional justice to be more effective (p. 166), and more broadly would enhance the EU’s credibility as an advocate of justice and peace (p. 204). Recalling the critiques of TJ, however it shows that TJ, as an element of a wider peacebuilding effort, was not applied uncritically, regardless of context, but it might nevertheless have been somewhat hampered by the constraints discussed above, of operating with a conception of TJ as a ‘toolkit’ to be applied as and when different options become feasible. Davis’ study of EU policy also begs the question of what the future role of the EU is vis- à-vis other actors in the transitional justice arena? Does it have the normative power and influence of a few years ago, post economic crisis? Is it too mired in its own problems, with migration and possible Brexit? Equally, for the US, an issue not discussed by Bird is the extent to which the US has squandered its normative capital by flouting the law. Guantanamo, and especially the revelations of abuse at Abu Ghraib undermined the US stance on the ICC and its position as a soft power exporter of liberty, the rule of law and human rights. And, echoing Bird, if we privilege strategic or pragmatic goals over the more normative or principled ones, are we really doing ‘justice’ to those for whom transitional justice is ostensibly for, or are we, circling back to Turner and Kühn, simply reinforcing the tyrannies of a liberal peace? Whither TJ? Transitional justice is, in number of important respects, at a critical juncture. Critiques of TJ highlight the ways in which it is inextricably tied to the liberal peacebuilding project, which is predicated on preserving a ‘liberal hegemony’, and the ways in which it is challenged by resistance to the norms and values underpinning it. This manifests most visibly in resistance to the International Criminal Court. However, whilst both TJ and liberal peacebuilding have their weaknesses, casting the TJ ‘industry’ as a ‘decontextualised mantra’ seems a little overblown.20 As Davis’ study of the EU demonstrates, context matters to at least some of the policy makers implementing TJ. The challenge, as ever, is to navigate heavily contingent processes of transition, and carefully balance norms, values, politics and pragmatics, as well as to take account of the range of actors and interests involved. If we want to ‘save’ TJ (in similar vein to Roland Paris’ quest to ‘save’ liberal peacebuilding),21 we need to be realistic about what it can achieve and honest about what it cannot. And we need to move away from the assumption of an institutional and state-based approach to one that recognises and accommodates the interaction of a range of international and domestic actors, cultures (norms), politics (resistance), and pragmatics. 20 Robins, Simon, ‘Mapping a Future for Transitional Justice by Learning from Its Past’, International Journal of Transitional Justice 9/1 (2015): 190. 21 Paris, Roland, ‘Saving Liberal Peacebuilding’, Review of International Studies 30/2 (2010): 337-365. 
work_463slpxfsrdmtn6hs7h6amvhau	----	to provide a powerful new analytical framework for the study of international relations, which nevertheless also retains the unique qualities and advantages of the classical English School tradition. By making the English School more theoretically self-conscious and situating its contributions within more recent developments in the International Relations literature, Buzan has turned a tradition, whose fortunes had arguably been languishing, into a vibrant research programme, which will have considerable appeal to a younger generation of IR theorists. References Buzan, B. (1993) ‘From international system to international society: structural realism and regime theory meet the english school’, International Organisation 47(3): 327–352. Ewan Harrison The Queen’s College, Oxford, UK. Justice in the Risk Society Barbara Hudson Sage Publications, London, 2003, xviiþ258pp. ISBN: 0 7619 6160 7. Contemporary Political Theory (2005) 4, 353–355. doi:10.1057/palgrave.cpt.9300209 Imagine Seyla Benhabib standing in for Jerry Springer, or Jurgen Habermas standing in for Oprah Winfrey, or Judith Butler standing in for Judge Judy. Imagine Michael Walzer presenting Neighbours from Hell or Carole Pateman presenting Wife Swap or Iris Marion Young presenting Crimewatch UK. These possibilities might spring to mind when reading Barbara Hudson’s Justice in the Risk Society because they capture the central problem the book establishes and explores. In the 1980s and 90s, sociologists such as Ulrich Beck observed that for a range of reasons the contingency of modernity had become reflexive. Because nothing could be guaranteed, life became a matter of more risk and less trust. Thus, if, for one reason or another, individuals reject the guarantees which the state and its institutions provide for them, they will have to bear the consequences themselves. Unfortunately, such an imperative has been very difficult for most people to swallow categorically. Instead, unregulated social life is generally viewed as a matter of getting caught or getting away with it. Above all, the trick is to find someone else to blame, and thus the moral advantage of someone else to fear. Book Reviews 353 Contemporary Political Theory 2005 4 In the face of these attitudes the dominant modern liberal approach to legal practice and jurisprudence is powerless to establish its own legitimacy in its own terms because these are not shared, accepted or recognised by legal subjects except for instrumental or, as Rawls said, ‘wrong’ reasons. Moreover, the self-serving liberal assumption that individuals are rational insofar as they agree with its axioms and accept its conclusions is simply ignored without the bother of argument or debate. Devastatingly, whereas liberalism justified the appropriation of a monopoly of force on the basis that doing so guarantees individual protection, individuals now regard states and their systems as a resource to be used as a means to further their own individual ends and demand to receive at least the equivalent of what they contribute to it. No one is prepared to pay the cost of entering into a covenant of obedience in return for creating jobs for civil servants. Similarly, the democratic conscience of liberalism, which sought to set limits to state action in order to protect individuals from it, has the status of a weakness to be exploited. Individuals regard their conflicts with the state as of the same order as their conflicts with other individuals, and their conflicts with the state often derive from its refusal to support them in pursuit of their aims. When distributive justice has become the distribution of justice how is justice possible? Barbara Hudson’s book addresses the issue in two parts. The first four chapters discuss the main challenges to the liberal tradition, with the second, on the complex contemporary relations between legal practice, policing and criminology and welfare, being particularly enlightening. For example, in order to manage and control risk, it has been suggested that individuals deemed to demonstrate the potential to develop serious personality disorders are eligible for legal constraint. The dominant trend on the front line is to develop therapeutic approaches that seek reconciliation by working on individual subjectivities. In either case everyone is ‘at risk’. But what is interesting about these developments is that they demonstrate how the state and its legal and penal systems are primarily concerned to protect themselves from risk and to demonstrate that they have ‘systems in place’ to do that and to reduce their own exposure to liability. The emphasis of Hudson’s book is on finding philosophical justifications for such practices. In addition to a first chapter outlining the internal tensions of liberalism, the other chapters in the section provide accounts of the philosophical and sociological communitarian critiques of liberal procedures and the feminist critique of liberal universalism. These themes are taken up in the three chapters of the second section which seek to find arguments that will reaffirm liberal justice in the light of its critiques. Hudson examines Habermas’s attempt to reconcile the ‘fact and norm’ of rational agreement through communicative consensus with his sympathetic feminist critics and suggests that this approach can contribute to weakening popular desires for retribution. To further the Book Reviews 354 Contemporary Political Theory 2005 4 issue, Hudson turns to developments associated with poststructuralist thought and in particular Lyotard’s emphasis on the incommensurability of justice as its internal limit, and Levinas’s ethic of unconditional responsibility to the ‘ultra-other’. Each chapter of Hudson’s book stands alone for its scholarship, exposition and readability and can be applauded and recommended for that reason. Yet it is difficult to get a sense of an overall argument adequate to the empirical challenges of risk society rather than the immanent philosophical critiques of liberalism. Some people will still fire bomb each others houses because of some obscure vendetta, and other people will still pay to exclude themselves from that society, and both types will avoid contributing to their own subjection, irrespective of what Habermas says about it. For example, one wonders how Levinas’s notion of the Other, by which he meant Abraham’s God and not Palestinians, could establish justice in the test case of the stereotypical conflict between the freedom seeking Muslim daughter and the tradition upholding Muslim parents, which Hudson discusses. Levinas would probably decide in favour of tradition, yet the case is only a case for liberalism. Indeed, one suspects that the poststructuralist emphasis on the ‘alterity’ and ‘incommen- surability’ of justice might be used self-servingly by legal professionals and their support agencies as justification for law as an interminable process in which individuals may or may not get caught up. Perhaps the challenge of risk society requires further sociological research into how the legal system or, more accurately, ‘network’, plays its own risk creation and avoidance games in order to protect and expand its interests? Doing so could contribute to a philosophical critique of the content of law, beginning with the expensive stupidity of the persistence of premodern sumptuary laws such as those which criminalise the enjoyment of narcotics in which the interests of law and crime coincide exactly. Jeremy Valentine Queen Margaret University College, Edinburgh, UK. Book Reviews 355 Contemporary Political Theory 2005 4 Justice in the Risk Society 
work_4bjrzfxnpjbwjdm5vx35wuarka	----	[PDF] XENOTRANSPLANTATION, CONSENT AND INTERNATIONAL JUSTICEdewb_251 119..127 | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. Corpus ID: 49579789XENOTRANSPLANTATION, CONSENT AND INTERNATIONAL JUSTICEdewb_251 119..127 @inproceedings{Sparrow2009XENOTRANSPLANTATIONCA, title={XENOTRANSPLANTATION, CONSENT AND INTERNATIONAL JUSTICEdewb_251 119..127}, author={R. Sparrow}, year={2009} } R. Sparrow Published 2009 researchmgt.monash.edu Save to Library Create Alert Cite Launch Research Feed Share This Paper References in Primates : World Experience and Current Status Xenotransplantation 1998 Related Papers Abstract 1 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_4elsvwcdhfge7dbskh3iwfjjjy	----	The European Journal of International Law Vol. 21 no. 4 © EJIL 2011; all rights reserved .......................................................................................... EJIL (2010), Vol. 21 No. 4, 1085–1102 doi: 10.1093/ejil/chq070 Imperfect Justice at Nuremberg and Tokyo Kirsten Sellars* Guénaël Mettraux (ed). Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Pp. 832. £36.99. ISBN 978019923234. Neil Boister and Robert Cryer. The Tokyo International Military Tribunal: A Reappraisal. Oxford: Oxford University Press, 2008. Pp. 358. £63.50. ISBN 9780199278527. Yuma Totani. The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. Cambridge, Mass: Harvard University Press, 2009. Pp. 355. $22.95. ISBN 9780674033399. Abstract When the international criminal tribunals were convened in Nuremberg and Tokyo in the mid-1940s, the response from lawyers was mixed. Some believed that the Second World War was an exceptional event requiring special legal remedies, and commended the tribunals for advancing international law. Others condemned them for their legal shortcomings and maintained that some of the charges were retroactive and selectively applied. Since then, suc- cessive generations of commentators have interpreted the tribunals in their own ways, shaped by the conflicts and political concerns of their own times. The past two decades have seen the establishment of new international courts, and an accompanying revival of interest in their predecessors at Nuremberg and Tokyo. Recent commentaries have analysed the founding documents, the choice of defendants, the handling of the charges, the conduct of the cases – and also the legal and political legacies of the tribunals. They demonstrate that long-standing disagreements over antecedents, aims and outcomes have still not been settled, and that the problems inherent in some of the original charges have still not been solved, despite the appearance of similar charges within the remit of the International Criminal Court today. * PhD, Aberdeen University’s School of Law. Her first book, The Rise and Rise of Human Rights, was published in 2002; her next book, The ‘Supreme’ Crime: Crimes Against Peace and International Law, is forthcoming. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1086 EJIL 21 (2010), 1085–1102 No document better conveys the roughness and expediency of the negotiations lead- ing up to the postwar tribunal at Nuremberg than the transcript of the four-power London Conference held from late June to early August 1945.1 At this gathering, which was book-ended by the signing of the UN Charter and the bombing of Hiro- shima, the Allies formally discussed the proposal to set up a court to try the captured German leaders. In the event, the conference very nearly broke down. The American delegate threatened to walk out over the question of the court’s location, the French delegate objected to plans to bring charges of crimes against peace, the British fretted over the risk of German countercharges, and the Soviets refused to countenance a def- inition of aggression. The debates were in turn acrimonious, meandering, portentous, repetitive and disjointed. There were frequent misunderstandings between common and civil law delegates, and all were compelled to advance their respective nation’s interests. Until the final day, none of them could be sure that a tribunal would be established at all, let alone that their discussions would provide the conceptual frame- work for two great assizes, one in Nuremberg, the other in Tokyo. This was history in the making, and its making was a messy and unedifying business. In the 65 years since the London Conference and the international tribunals that followed in its wake, successive generations of commentators, writing with the benefit of hindsight, have offered their appraisals of this postwar experiment in international criminal justice. It is notable that these interpretations were often shaped in response to the wars of their own time. In the early 1950s, for example, Western conservatives argued that a new war with the Soviets was in the offing, and the time for prosecuting the Germans had passed. In the late 1960s, Bertrand Russell and Jean-Paul Sartre staged their own informal ‘tribunal’ to condemn American crimes in Vietnam. In the early 1990s, both Margaret Thatcher (in reference to Iraq) and Madeleine Albright (to Bosnia) harked back to the Nuremberg ideal. Until recently, however, it was widely assumed that the large-scale formally consti- tuted international tribunals of the 1940s were an experiment that was not likely to be repeated: as Geoffrey Best wrote in the closing decade of the Cold War, Nuremberg was ‘but a beacon behind us, growing ever fainter’.2 But with the revival of interest in inter- national criminal law after the fall of the Berlin Wall, the postwar tribunals assumed a new significance to the lawyers and policy-makers involved in the newly constituted ad hoc courts and International Criminal Court, who found themselves grappling with many of the same problems. What was the most appropriate method for determining individual responsibility for international crimes? What were the problems associated with the criminalization of aggression or the prosecution of crimes against humanity? How might one organize a case if documentary evidence or witnesses were not readily available? These questions and many others are considered in the three books under 1 United States Department of State, Report of Robert H Jackson, United States Representative to the Inter- national Conference on Military Trials, London, 1945. 2 G. Best, Nuremberg and After: The Continuing History of War Crimes and Crimes Against Humanity (1984), at 26. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1087 review, which provide fascinating insights into the conceptualization of the charges, the conduct of the trials, the findings that they made, and, finally, the respective leg- acies of Nuremberg and Tokyo. Each book has different approaches and different strengths, and together they provide a very substantial appraisal of the two tribunals. 1 The Conception of Nuremberg The Nuremberg Tribunal, shorn of its least palatable features, has now become the lodestar of international criminal justice. The lawyer Guénaël Mettraux’s major 32-article anthology of writings on this tribunal covers law, history, politics and phil- osophy, and includes important pieces newly translated from the French, German and Russian. It begins, appropriately enough, with contributions by two men who played a pivotal role in the trial’s conception: American chief prosecutor Robert Jackson and his intellectual collaborator Hersch Lauterpacht. In late 1940, Jackson (then attorney- general) began to consult Lauterpacht on the problem of how to justify the United States’ involvement in the war at a time when the nation was still avowedly neutral. His Havana speech of March 1941 incorporated Lauterpacht’s suggestions relating to ‘qualified neutrality’,3 the punishment of aggression, and just war theory. And his Indianapolis speech of October, reprinted in the anthology, issued an internationalist challenge to residual isolationism by calling for a strengthening of international law to deal with aggression and maintain peace.4 Hersch Lauterpacht once again dispensed advice to Jackson when they met in July 1945 to discuss the charges that were being formulated at the London Conference, and he later helped to write British chief prosecutor Hartley Shawcross’s opening and closing speeches at the trial itself. His ideas were compelling, and some of them – such as those on the individual and the state – were later voiced by Shawcross in court, then reproduced in the Judgment. Jackson and Lauterpacht were central figures who obviously should be included in the anthology, but other highly influential individu- als who contributed to the construction of the charges have been left out. Notable omissions include the Soviet academic Aron N Trainin, and the American lawyers Murray Bernays and William Chanler, who in the latter half of 1944 began to inde- pendently formulate the charges that would later appear in the Nuremberg Charter as ‘common plan or conspiracy’ and ‘crimes against peace’.5 3 Jackson, ‘Address of Robert H. Jackson, Attorney General of the United States, Inter-American Bar Asso- ciation, Havana, Cuba, March 27, 1941’, 35 AJIL (1941) 348, at 351. 4 Jackson, ‘The Challenge of International Lawlessness’ (1941), in Mettraux, at 11. 5 A. N. Trainin, A. Y. Vishinski (ed) and A. Rothstein (tr), Hitlerite Responsibility Under Criminal Law (1945); Bernays, ‘Legal Basis of the Nuremberg Trials’, 35 Survey Graphic (1946) 4; and Bernays documents in B. F. Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (1982); Chanler docu- ments in Bush, ‘“The Supreme . . . Crime” and its Origins: The Lost Legislative History of the Crime of Aggressive War’, 102 Colum L Rev (2002) 2324. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1088 EJIL 21 (2010), 1085–1102 Despite careful planning by the prosecuting powers, underlying tensions meant that they were unable to follow a consistent line at Nuremberg. They were prepared to countenance the revolutionary idea of holding national leaders to account (so long as it was at an ad hoc trial), but they were also aware of the sovereignty-piercing implications of the charges, and thus treated them with circumspection. Responding to these tensions, Robert Jackson adopted different positions at different times: some- times he was an impeccable naturalist, other times an unabashed realist. Yet despite the innovative features of the trial he had helped to convene, his preoccupation with sovereign rights never wavered, which is why, in his closing speech, he was moved to state that ‘[t]he intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern to international law had it not been utilized to goosestep the Herrenvolk across international frontiers’.6 2 Critics and Criticisms In the first half of Mettraux’s anthology, which deals with contemporaneous perspec- tives on the trial, a range of participants discuss the conception of the charges, the presentation of the evidence, and the significance of the judgment. These writings by, among others, Jackson’s legal colleagues and political allies – Francis Biddle, Thomas Dodd, Telford Taylor, Herbert Wechsler, Quincy Wright, and in a later section, Henry Stimson – provide rich pickings, but they also highlight the book’s one serious flaw. When covering the immediate postwar period, it thoroughly documents the more commendatory approaches to the Tribunal, yet it does not do the same for the argu- ments against, even though the criticisms were powerful enough to compel the pros- ecuting powers in 1946–1948 to take remedial action at both the Tokyo Tribunal and the United Nations (where the ‘Nürnberg Principles’ were broached to this end). Two critical pieces from this decade are included (by Georg Schwarzenberger, and by Hans Kelsen, who advised the prosecution and was hardly representative) but many others are not. This despite the fact that the academic community’s international law- yers and political scientists – particularly those based in the United States, such as Edwin Borchard, George Finch, Leo Gross, Erich Hula, Hans Leonhardt, Max Radin and Franz Schick7 – raised reservations at the time. The resulting balance of the ma- terial representing this crucial period makes Mettraux’s volume feel very much the ‘official’ version. 6 International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal (1947–1949) vol. 19, 399 (emphasis added). 7 Borchard, ‘The Impracticality of “Enforcing” Peace’ 55 Yale L J (1946) 966; Finch, ‘The Nuremberg Trial and International Law’, 41 AJIL (1947) 20; Gross, ‘The Criminality of Aggressive War’, 41 Am Polit Sci Rev (1947) 205; Hula, ‘Punishment for War Crimes’, 13 Soc Res (1946) 1; Leonhardt, ‘The Nuremberg Trial: A Legal Analysis’ 11 Rev Pol (1949) 449; Radin, ‘Justice at Nuremberg’, 24 Foreign Aff (1946) 369; Schick, ‘The Nuremberg Trial and the International Law of the Future’, 41 AJIL (1947) 770. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1089 This is a shame because those inclined towards scepticism have much to tell us about the trial and the legal thinking that informed it. Their criticisms focused pre- dominantly on jurisdiction, retroactivity and selectivity – the last two now widely accepted as legitimate complaints against Nuremberg. These arguments could be described as forceful but limited in scope. The approach to retroactivity, for example, was narrowly conceived: while many cited the crimes against peace charge as being an ex post facto enactment, only a few also mentioned the equally newly minted crimes against humanity charge8 and almost none the conspiracy count, hitherto virtually unknown in international law.9 When considering crimes against peace, they often discussed nullum crimen sine lege but rarely its accompanying coda, nulla poena sine lege. And although they often talked of the retroactive prohibition of aggressive war, they rarely discussed retroactive individual responsibility – the exception being de- fence lawyer Hermann Jahrreiss, who used this argument in court.10 (The sceptics’ failure to pick up on this latter issue puzzled Robert Jackson, who later surmised that this was either because ‘they do not understand its implications, or . . . they approve abandonment of the old concept of absolute sovereignty’.)11 Of all the charges, it was crimes against peace that proved the most contentious. British and French officials had in 1944–1945 privately questioned the validity of the charge, and the following year, while the trial was in progress, academics began to publicly raise similar concerns. A lightning rod for this discussion was criminolo- gist Sheldon Glueck’s 1946 Harvard Law Review essay (reprinted in the anthology) and then book, The Nuremberg Trial and Aggressive War, which followed the prosecu- tion’s lead in arguing that inter alia the 1923 draft Treaty of Mutual Assistance, the 1924 Geneva Protocol, the 1927 Eighth League Assembly resolution and the 1928 Kellogg-Briand Pact could be ‘regarded as powerful evidence of the existence of a widely prevalent custom among civilized peoples sufficient to energize a juristic cli- mate favorable to the regarding of a war of aggression as . . . downright criminal’.12 The reviewers of Glueck’s book were not persuaded by this line. Where, they enquired, was the supporting evidence of state practice and opinio juris? As George Finch wrote, custom could not be judicially established ‘by placing interpretations upon the words of treaties which are refuted by the acts of the signatories in practice, [or] by citing unratified protocols or public and private resolutions of no legal effect’.13 Another criticism of the charges, and particularly crimes against peace, related to the Charter’s selective focus on ‘the major war criminals of the European Axis’.14 8 The French judge, Donnedieu de Vabres, makes this observation, however, in: ‘The Nuremberg Trial and the Modern Principles of International Criminal Law’ (1947), in Mettraux, at 227. 9 A later exception was Julius Stone, in: Legal Controls of International Conduct: A Treatise on the Dynamics of Disputes and War-Law (1954), at 361. 10 IMT, supra note 6, vol. 17, at 478. 11 Jackson, ‘Some Problems in Developing an International Legal System’, 22 Temple L Q (1948) 147, at 153. 12 Glueck, The Nuremberg Trial and Aggressive War (1946), at 34 (original emphasis). 13 Finch, Review of The Nuremberg Trial and Aggressive War by Sheldon Glueck, 41 AJIL (1947) 334, at 334. 14 The Charter of the International Military Tribunal (1945), in Mettraux (appendices), at 736. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1090 EJIL 21 (2010), 1085–1102 Shortly after the Judgment was handed down, the British alternate judge, Norman Birkett, while noting that the Charter did not apply to the Soviet Union, the United States or Britain, declared that, ‘If it continues to apply only to the enemy, then I think the verdict of history may be against Nuremberg.’15 While the Germans were being tried, the Charter formalized the Allies’ refusal to relinquish immunity for themselves for similar crimes. This was a sensitive point, and others associated with the bench and the prosecution – Herbert Wechsler, Telford Taylor and Bernard Meltzer – also raised their concerns about the problem of selectivity.16 As predicted, this issue did indeed tarnish Nuremberg’s legacy – and to a greater degree than did retroactivity or the specifics of the Allies’ wartime conduct (the pros- ecution felt extremely vulnerable to countercharges over the Molotov-Ribbentrop Pact of 1939 and Anglo-French plans to breach Norway’s neutrality in 1940). This invites the question: Why then did they decide to embark on a high-risk trial? One can only agree with Richard Falk, who wrote in 1995 that it was hard to understand ‘why sovereign states should have been ever willing to validate such a subversive idea as that of international criminal accountability of leaders for war crimes’, and that this validation only made sense ‘if the imposition of accountability is understood to be a particularly advantageous response to a given geopolitical challenge whose wider implications can be avoided’.17 3 Tensions at Work Retroactivity and selectivity aside, there is still a great deal more to be said about the problems implicit within the Nuremberg charges – a matter of some import, given the present appearance of similar charges on the roster of the International Criminal Court. The charge of crimes against peace, for example, proved to be problematic not only because of the aforementioned problems, but also because internal contradic- tions ultimately rendered it unsustainable. One contradiction relates to sovereignty: the charge reflected both the impulse to protect sovereignty (by punishing assaults on the existing world order) and the impulse to breach sovereignty, by making indi- vidual leaders – as distinct from states – directly accountable to international law.18 Another tension relates to enforceability: as David Luban argued in his 1987 piece, reprinted in the anthology, the charge of crimes against peace simultaneously crimi- nalized aggression and ‘any attempt to enforce itself’ by taking action against threats 15 Birkett, ‘International Legal Theories Evolved at Nuremberg’ (1947), in Mettraux, at 307. 16 Wechsler, ‘The Issues of the Nuremberg Trial’ (1947), in Mettraux, at 319; T. Taylor, Nuremberg and Vietnam: An American Tragedy (1971), at 82; Meltzer, ‘A Note on Some Aspects of the Nuremberg Debate’, 14 U Chi L Rev (1947) 455, at 469. 17 Falk, ‘Telford Taylor and the Legacy of Nuremberg’, 37 Colum J Transnat’l L (1999) 693, at 710 (original emphasis). 18 K. Sellars, ‘Crimes Against Peace’ and International Law (PhD thesis) (2009), at 310. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1091 to the global order. In consequence, the charge ‘cuts its own throat as an instrument of international peace’.19 One of the volume’s strengths is that it includes translations of half a dozen pieces that have hitherto been unavailable in English. The most notable of these is by the French judge Henri Donnedieu de Vabres, who in 1947 took issue with the conspiracy charge because it ‘gives to the Hitlerian enterprise the cover of a romantic prestige’.20 Half a century later the German legal philosopher Reinhard Merkel expertly dissected some of the problems associated with the court’s jurisdiction.21 And in the same decade a Russian writer, referred to in different parts of the anthology as ‘A.M. Larin’ and ‘Larin A.M. Prigovor’, addressed the often-overlooked subject of the Tribunal’s finding of facts.22 A telling aspect of this collection is that it reveals some of the writers’ misconcep- tions and occasional misrepresentations concerning the Allies’ respective roles in the establishment of the Tribunal. It is worth observing, for example, that the Soviets were not in favour of shooting the Nazi leaders (as Otto Kranzbühler stated)23 although Churchill was. Nor was Roosevelt a consistent advocate of a trial (as Robert Jackson claimed);24 he in fact wavered between legal and political solutions. The trial was not wholly ‘a brainchild of the Americans’ (as Luban stated)25 for the Soviets had con- ceived similar ideas. And the Russians did not join the trial reluctantly (as Jackson well knew)26 but firmly supported it as a judicial settling of accounts. To underscore this last point, it was no less a figure than Andrei Vishinsky, chief prosecutor at the 1930s Moscow trials, who in 1945 assumed responsibility for the Soviet team at Nuremberg. As previously noted, interpretations of Nuremberg have changed over the years. In the two decades immediately following the trial, the verdict tended to be negative. If aspects of the trial were not dismissed as misconceived or misdirected, then they were condemned as insufficient – the Eichmann trial, for example, was seen as making up for Nuremberg’s shortcomings on the Holocaust. Today the verdict tends to be more positive, and Guénaël Mettraux, like many others, inclines towards a less critical view, as reflected in his selection. No anthology can be complete, and any selection will inev- itably be criticized for this or that omission. In the end Mettraux has drawn together a valuable collection of commentaries into a single volume, which thoroughly deserves to become a standard reference work on the trial. 19 Luban, ‘The Legacies of Nuremberg’ (1987), in Mettraux, at 658. 20 Donnedieu de Vabres, supra note 8, at 243. 21 Merkel, ‘The Law of the Nuremberg Trial: Valid, Dubious, Outdated’ (1996), in Mettraux, at 566. 22 ‘Larin’, ‘Nuremberg Trial: The Law Against War and Fascism’ (1995), in Mettraux, 546–554. 23 Kranzbühler, ‘Nuremberg Eighteen Years Afterwards’ (1965), in Mettraux, at 444. 24 Jackson, ‘Introduction’ (1954), in Mettraux, at 701. 25 Luban, supra note 19, at 646. 26 Jackson, supra note 24. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1092 EJIL 21 (2010), 1085–1102 4 Trying War at Tokyo While the Nuremberg Tribunal has been the subject of a deluge of literature from all quarters since its inception, its less well-known sibling at Tokyo has not attracted a great deal of scholarly attention outside Japan. Two recent books go some way to- wards rectifying this situation. The British-based academic lawyers Neil Boister and Robert Cryer tell the ‘law story’,27 focusing on the charges, conduct and conclusions of the trial, while the American-based historian Yuma Totani concentrates on the court’s establishment and findings, and the response in Japan after the event. Although they reach different conclusions about the standing of the trial, the two books complement (and occasionally compensate for) one another. The International Military Tribunal for the Far East opened on 3 May 1946 in the highly symbolic location of the auditorium of the former Imperial Army Officers’ School in Tokyo. Here, the prosecutors would face all the problems experienced by their Nuremberg counterparts, and more besides. One of the greatest of these difficul- ties related to the character of the Second World War itself. From the outset, the Allies had justified the prosecution of the leaders of the Axis powers on the grounds that the conflict had been unique in the annals of warfare because of its totality and barbarity. This argument rested primarily upon a singular event: the Holocaust. Although the judges at Nuremberg declared crimes against peace to be the ‘supreme international crime’,28 it was in fact the existence of the death camps that formed the moral core of the Allies’ case against the Nazi leaders. The Second World War was therefore regarded as an exceptional event requiring special legal remedies, its singularity deriving from Germany’s actions. Japan’s pol- icies, by contrast, were unexceptional. Its leaders had certainly presided over whole- sale assaults and terrible atrocities, but they had not broken the mould of international politics by instituting policies to systematically annihilate entire national, ethnic, ra- cial or religious groups. As Bruno Simma noted in 1999: ‘Auschwitz was singularly German, and none of the offences committed by the Japanese political and military leaders came even close.’29 One silent casualty at Tokyo of this mismatch between German and Japanese crimes was the charge of crimes against humanity, which had initially been framed to address German crimes against Axis populations. Although the crime was listed in the Tokyo Charter along with crimes against peace and war crimes, it was mentioned just once in the Indictment, and only in passing in the majority Judgment. None of the books under review probe the reasons for its disappearance, but the decisive fac- tors must have been the Allies’ tacit recognition that nothing committed by Japan could compare to German crimes, combined with their reluctance to continue deploy- ing this sovereignty-piercing instrument. Even though the war crimes and murder 27 Boister and Cryer, at 328. 28 IMT, supra note 6, vol. 1, at 186. 29 Simma, ‘The Impact of Nuremberg and Tokyo: Attempts at a Comparison’, in A. Nisuke (ed.) Japan and International Law: Past, Present and Future (1999), at 83. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1093 charges partly covered the same ground as crimes against humanity, many victims, such as the ‘comfort women’ from Japan’s colonies of Korea and Formosa, were left to seek justice by different means. 5 A Tarnished Reputation To date, history’s verdict on Tokyo has not been favourable. In 1948, a British Foreign Office official declared it to be a ‘political failure’,30 and since then, it has often been deemed a legal failure as well: Cherif Bassiouni, for example, described it as a prece- dent which legal history can only consider ‘with a view not to repeat it’.31 Neil Boister and Robert Cryer, however, set themselves the task of reassessing the legal issues aris- ing from the trial, and they do so to good effect. They did not have a great deal of sec- ondary literature to draw from. The contemporaneous legal coverage of the trial was remarkably thin, with only a score of articles, mostly short laudatory pieces written by prosecutors, appearing in English-language law journals. And since then, although there have been some notable additions to the literature by historians and political scientists, there has not been much from the legal profession (an exception being the works of the Dutch jurists, Cornelus Pompe and Bernard Röling).32 The authors thus draw a good deal of their illustrative material from the trial transcript and the papers of the Australian and New Zealand judges. In approaching the Tribunal, Boister and Cryer are scrupulously even-handed, acknowledging the problems associated with mounting an international trial, and giving the Tribunal credit for its clarification of the law on issues such as civilian com- mand responsibility. This, along with their meticulous analysis of the material, makes the criticisms that they do offer all the more devastating. In summary, they conclude that the prosecuting powers at Tokyo violated the principle of legality by creating the new charge of crimes against peace,33 treated the war crimes charges as almost an afterthought,34 and breached the undertaking to give the accused a fair trial.35 Not surprisingly, they reserve their sharpest criticisms for the conspiracy charges. Tokyo placed far greater stress on conspiracy than did Nuremberg, prompting Corn- elus Pompe to note in 1953 that it seemed as though the Tribunal ‘did not consider it so much its task to attribute responsibility for acts committed in international life, as to disclose the existence of a criminal design directed towards such acts’.36 This emphasis 30 National Archives (UK), FO 371/69834: Scott, 23/12/48. 31 Boister and Cryer, at 302. 32 C. A. Pompe, Aggressive War: An International Crime (1953); Röling, ‘The Nuremberg and the Tokyo Tri- als in Retrospect’, in Mettraux, 455–472; B.V.A. Röling and A. Cassese (ed), The Tokyo Trial and Beyond: Reflections of a Peacemonger (1993). 33 Boister and Cryer, at 136–137. 34 Ibid., at 175. 35 Ibid., at 102. 36 Pompe, supra note 32, at 27. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1094 EJIL 21 (2010), 1085–1102 arose because the lack of evidence linking defendants to specific events necessitated an indirect approach: first establishing an individual’s connection to the conspiracy, and then using membership of the conspiracy to signal personal responsibility for substant- ive crimes. Conspiracy was appealing because it provided a conceptual framework for the consideration of discrete policies and a diverse group of defendants, but it worked only if it could be proved that every defendant had played their allotted part in the grand plan. As Boister and Cryer note, certain individuals (such as Hirota Koki in the 1930s) were like ‘the poles holding up the tent’ – if one pole were to be removed, the tent would fall down.37 Despite the obvious problems, the majority of judges were preoccupied with sus- taining a conspiracy-led narrative even when considering the substantive crimes. As David Cohen noted in 1999, this drift from the individual to the collective occurred, for example, in a chapter of the majority Judgment on crimes against peace, which began by stating that the most important task was to ‘assess the responsibility of indi- viduals for these attacks’, and ended with reference to a collective entity: ‘the con- spirators’.38 He further observed that it neither set out plain standards of responsibility nor stated the findings on which individual verdicts were based.39 Although criminal guilt is personal, Boister and Cryer demonstrate that at times the Tribunal displayed a ‘cavalier approach to individual liability’.40 6 Contending Legal Philosophies With so many contentious issues up for discussion, it was perhaps inevitable that the Tokyo Tribunal would become a catalyst for debate about the future of international law – an issue addressed in Boister and Cryer’s chapter on the legal philosophy of the trial. As they note, both naturalists and positivists made their views known, with the American chief prosecutor Joseph Keenan later claiming (with characteristic hyper- bole) that the trial ‘served as a cockpit for a death struggle between two completely irreconcilable and opposed types of legal thinking’.41 And as at Nuremberg, crimes against peace generated the most heat. Positivists maintained that because aggres- sive warfare had not been criminalized before the Second World War, individuals could not be prosecuted for initiating it. Naturalists, on the other hand, argued that the principle of individual responsibility for aggression was generated spontaneously from public conscience, which would harden into law through its application to cases such as those at Tokyo. The authors pick their way through these and other con- troversies, showing, for example, that the better-known judges Radhabinod Pal and 37 Boister and Cryer, at 219. 38 Cohen, ‘Beyond Nuremberg: Individual Responsibility for War Crimes’, in C. Hesse and R. Post (eds), Hu- man Rights in Political Transitions: Gettysburg to Bosnia (1999), at 60–61. 39 Ibid., at 64. 40 Boister and Cryer, at 245. 41 J. B. Keenan and B. F. Brown, Crimes Against International Law (1950), at 13. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1095 Bernard Röling were not as immaculately positivist as is often assumed. At the same time they take issue with Judith Shklar’s incisive but imperfect essay Legalism (1964), which touched on the intellectual traditions that underpinned the Tokyo Tribunal, and correct her assumption that the Japanese did not comprehend the Judeo-Chris- tian or naturalist themes manifested there.42 One of the most outspoken protagonists in these debates at the Tribunal was the aforementioned Joseph Keenan, an avowed naturalist with a conception of inter- national law which might be summarized as innovation in the service of orthodoxy. In his view, the law was a dynamic force, ultimately derived from God and directed towards the maintenance of the status quo. He believed that pre-war international arrangements had come about because some nations, by virtue of their superior cul- ture, had assumed control of others for the benefit of all. The only way for a country to lawfully alter these arrangements was by slow, evolutionary means, and Japan’s sud- den and violent intervention had in his view overturned a legitimate and moral world order. Such aggression had to be stopped because: ‘If Japan had the right to change its geographical and economic status suddenly by war, then every other nation as badly situated, from the economic standpoint, had the same right.’43 Armed with this idea, Keenan set out the case for the prosecution of aggression based upon the concept of unjust wars (that disrupted the status quo) and just wars (that restored the status quo). ‘The nucleus of crimes against peace is the criminally unjust war,’ he wrote, which was ‘always evil per se in the moral sphere and unjust in the judicial, despite the absence of positive legal undertakings to that effect.’44 In his view, it was necessary to use the trial to advance international law in order to pre- vent further unjust wars. Indeed, he was quite prepared to assert this transcendent aim over the apparently lesser task of administering justice: not only did he declare that he had ‘no particular interest in any individual or his punishment’ because the defendants were mere representatives of ‘a class and group’,45 but he rebuked defence lawyers for being willing to ‘sacrifice the common international good’ to secure the defendants’ interests.46 7 Pal’s Perspectives The most forthright opponent of Keenan’s approach was the Indian judge, Radhabinod Pal, whose dissent famously absolved all the Japanese defendants of all guilt. His stance, which was articulated just as third-worldist sentiment was beginning to stir, provides a revealing counterpoint to Keenan on the relationship between inter- national law and the status quo. Starting out from a strictly positivist position, he 42 Boister and Cryer, at 294–296. 43 Keenan and Brown, supra note 41, at 63. 44 Ibid., at 57 and 79. 45 Ibid., at 463. 46 Ibid., at 156. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1096 EJIL 21 (2010), 1085–1102 argued that it was perilous to innovate in line with the dictates of conscience because only adherence to the letter of the law, not ‘the “general moral sense” of humanity’,47 guaranteed predictability. The naturalist alternative, with its premature claims to uni- versalism, emitted (and here he quoted Lon Fuller) the ‘rich, deep odor of the witches’ cauldron’.48 Yet as Boister and Cryer note, Pal’s legal philosophy was more complex and accommodating than such words suggest.49 His suspicion concerning subject- ivity was linked to his doubts about the motives of the prosecuting powers, yet his attempt to posit an alternative worldview led him back towards a naturalist position. Addressing crimes against peace, Pal recalled the prosecuting powers’ history of violence in Asia, and warned that they might deploy the charge for their own self-interested reasons, such as maintaining ‘the very status quo which might have been organized and hitherto maintained only by force by pure opportunist “Have and Holders”.’50 He noted, for instance, Robert Jackson’s statement at Nuremberg that ‘whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions’.51 In other words, Jackson was effectively calling for the freezing of international relations – just or unjust – at the conclusion of the Second World War. Thereafter, the struggle against colonialism and exercise of ‘self-help by force’52 would be prohibited. For Pal, this restraint was unacceptable, for the colonized ‘cannot be made to submit to eternal domination only in the name of peace’.53 When taking issue with Jackson, Pal proposed a radical inversion of global prior- ities, with anti-colonial justice taking precedence over peace rather than peace taking precedence over justice (the latter being in his opinion the premise for the concept of crimes against peace). He thus departed from his positivist position and moved to- wards ‘just war’ theory – in the process stepping onto the same naturalist terrain as Keenan. Their immediate disagreement turned on the question: Were Japan’s wars unjust? Not according to Pal, for Japan’s leaders had believed that they were acting in self-defence. This was a substantial concession to the idea embedded within crimes against peace that wars could be categorized as either illegitimate (aggression) or le- gitimate (self-defence or sanction). Instead of rejecting this polarity, as an orthodox positivist might have done, Pal submitted to it, by attempting to shift Japan’s wars from the ‘aggressive’ to the ‘defensive’ side of the scale. Instead of reframing the de- bate, he found himself trapped within it. 47 R. Pal, International Military Tribunal for the Far East: Dissentient Judgment of Justice R.B. Pal (1953), at 112. 48 Boister and Cryer, at 286. 49 Ibid, at 286–291. 50 Pal, supra note 47, at 115. 51 IMT, supra note 6, vol. 2, at 149. 52 Pal, supra note 47, at 114. 53 Ibid., at 115. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1097 8 Reinforcing Nuremberg Boister and Cryer have produced an illuminating account, and if there is any weak- ness, it relates not to their interpretation of the legal issues arising from the trial but from their failure to fully explain Tokyo’s role in relation to Nuremberg. By the time the Tokyo Tribunal opened, the Nuremberg Charter and Indictment had already been subjected to critical scrutiny by jurists and others, and found wanting on legal grounds, especially with respect to crimes against peace. The prosecuting powers were well aware that this charge had broken new ground, and hoped that the Tokyo Judgment would confirm Nuremberg’s determinations on aggressive war, thereby settling the debate.54 As a consequence, every possible measure was taken to ensure that Tokyo backed Nuremberg over this problematic charge, from the drafting of the Tokyo Indictment, which attempted to reinforce the crimes against peace charge with the conspiracy and murder charges, to the attempts before and during the trial to focus on aggression to the exclusion of the other substantive charges. These efforts were seen as highly im- portant because, as the British Foreign Office’s legal advisor Eric Beckett minuted, a failure to win the case on crimes against peace in Japan ‘would inter alia mean that the Tokyo Tribunal was saying that the Judgment of the Nuremberg Tribunal was based at any rate in part upon bad law’.55 The judges in Japan were thus bound by the dual obligation to uphold both the Tokyo Charter and the Nuremberg Judgment. The compulsion to defer to Nurem- berg was never publicly stated, of course, although as soon as it became clear to the Allies that the Tokyo bench had split over the question of the validity of crimes against peace, officials either privately sounded out the judges over schemes designed to en- sure that the judgment echoed the Nuremberg line (as the British did with Lord Pat- rick)56 or pressured them to abandon their disagreements with crimes against peace (as the Dutch did with Bernard Röling).57 The prosecuting powers’ determination to prop up Nuremberg therefore undermined the Tokyo judges’ autonomy, and inflamed the tensions that already existed on the bench. As it turned out, the will of the majority in favour of supporting Nuremberg prevailed, and the Tokyo Judgment duly duplicated the previous Judgment’s pro- nouncements on international law. (The only important exception was the Nuremberg ruling that individuals had international duties that transcended obligations to the state, which was dropped at Tokyo on the insistence of the Soviet judge, I.M. Zaryanov.) As the majority explained: ‘this Tribunal prefers to express its unqualified adherence 54 This theme is examined in greater detail in Sellars, ‘Lord Patrick and “Crimes Against Peace” at the Tokyo Tribunal, 1946–48’, Edinburgh L Rev (forthcoming). 55 National Archives (UK), FO 371/66552: Beckett, 5/5/47. 56 Sellars, supra note 54. 57 L. van Poelgeest, ‘The Netherlands and the Tokyo Tribunal’, Aspects of the Allied Occupation of Japan, Part II, Suntory-Toyota International Centre for Economics and Related Disciplines, London (1991), at 38–39. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1098 EJIL 21 (2010), 1085–1102 to the relevant opinions of the Nuremberg Tribunal rather than by reasoning the mat- ters anew in somewhat different language’ for this would ‘open the door to contro- versy by way of conflicting interpretations of the two statements of opinions’.58 9 One Trial, Many Views What then is the legacy of the Tokyo Tribunal? Just as Nuremberg was interpreted in new ways by successive generations of observers in the West, so Tokyo was inter- preted in new ways by successive generations in Japan. The historian Yuma Totani is primarily interested in the court’s findings and the subsequent Japanese response to them. In her vividly detailed book, she seeks to reclaim the Tribunal from its many and varied critics by clearing away some of the misapprehensions and prejudices that have taken root over the years. In the process, she arrives at a more favourable assess- ment of the trial than many others, including Boister and Cryer, have done. She begins by surveying the Allies’ preparation of the trial, the selection of sus- pects, and the question of the indictment of the Emperor Shōwa. Then she assesses the handling of leadership responsibility for atrocities, and the cases of the Rape of Nanking, the Burma-Siam ‘Death Railway’ and other mass crimes committed during the Asian-Pacific War. Of particular interest, though, is her comprehensive descrip- tion of the legacy of the trial in Japan, which has not been widely discussed in the literature about the Tribunal.59 She identifies three successive approaches taken by commentators over the years: the legal academics who in the late 1940s upheld the Tribunal as a necessary advance in the law; the conservative nationalists who from the early 1950s denounced it as victors’ justice; and the radical historians who from the early 1980s criticized it for its expedient narrative of the Asian-Pacific War. As Totani recounts, the first published analyses of the trial started to appear while the court was still sitting, and they were generally positive. From Tokyo University’s law faculty, for example, Dandō Shigemitsu argued in his 1946 article, ‘Sensō hanzai no rironteki kaibō’ (‘The Theoretical Anatomy of War Crimes’) that the criminaliza- tion of aggression had long been a principle of international law, and the ban on ex post facto enactments was anyway designed to protect the victims, not the manipulators, of arbitrary state power.60 The following year, his colleague Yokota Kisaburō contended in his book, Sensō hanzai ron (A Treatise on War Crimes) that international law was in 58 International Military Tribunal for the Far East [R John Pritchard (ed)], The Tokyo Major War Crimes Trial (1998), vol. 101, at 48439. 59 The issue is raised in some of the more general literature, however, such as Ian Buruma’s The Wages of Guilt: Memories of War in Japan and Germany (1995). 60 Totani, at 193. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1099 a period of revolutionary change in which the concept of war crimes had expanded to embrace aggression – a crime which had clearly been committed by Japan because it had ‘ignored treaties, flouted justice’.61 It is worth noting that Totani’s chronological distinction between the first favour- able generation of analysts and second antipathetic generation is somewhat artificial, for the two outlooks must surely have co-existed from the start – it was just that early critics of the trial were silenced by Douglas MacArthur’s administration’s purges and censorship during the postwar Occupation.62 Only after April 1952, with the com- ing into force of the peace treaty and the lifting of the American restrictions, did the conservative lawyers and politicians begin to broadcast their views. They would make up for lost time by dominating the debate over the following decades. 10 The Nationalist Riposte Totani indicates that the first book setting out a nationalist ‘victors’ justice’ critique of the trial, Tōkyō saiban o sabaku (Judging the Tokyo Trial), was published in 1953. Its author, Takigawa Masajirō, formerly Tokyo defendant Shimada Shigetarō’s lawyer, argued that far from being the self-proclaimed exemplar of civilized values, the Tri- bunal was in reality an instrument for inculcating defeatism in the Japanese people.63 Moreover, he wrote, the severity of the sentences handed down at Tokyo compared to Nuremberg could be put down to racial prejudice: ‘the Japanese are coloured and the Germans white’.64 Other books expressing similar sentiments appeared later. The 1961 memoir, Tōkyō saiban no shōtai (The True Character of the Tokyo Trial) by Sugawara Yutaka, Araki Sadao’s lawyer, claimed that the Allies handed down seven death sen- tences to settle scores over seven wartime actions – Pearl Harbor, Singapore, Bataan and so on.65 And the 1966 memoir, Hiroku: Tōkyō saiban (The Secret Record About the Tokyo Trial) by Kiyose Ichirō, Tōjō Hideki’s lawyer, claimed that the war crimes charges brought at the trial were an invalid pretext for the harsh punishments of the accused.66 The conservative critics were more interested in justifying Japanese policies than in analysing the nuances of international law, although as Totani explains, they were happy to use Radhabinod Pal’s dissent to vindicate their stance and invest their arguments with legal credibility.67 Moreover, she shows that Pal himself was complicit in this process, as his sympathy with defence arguments ripened into support for 61 Ibid., at 196. 62 Mayo, ‘Civil Censorship and Media Control in Early Occupied Japan: From Minimum to Stringent Sur- veillance’ in Robert Wolfe (ed.) Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (1984), at 297–298, 310, 318-319. 63 Totani, at 230. 64 ‘Tokyo War Crimes Trial Farce; Japanese Lawyer’, Japan News, 12/9/53. 65 Totani, at 230–231. 66 Ibid., at 231. 67 Ibid., at 224. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1100 EJIL 21 (2010), 1085–1102 the defendants’ cause. He visited Japan on three occasions after the trial – in 1952, 1953 and 1966 – addressing rapturous nationalist audiences, sipping tea with the defendants’ families, and visiting the inmates of Sugamo Prison. Although Totani is interested only in his relations with the Japanese right, both Elizabeth Kopleman and Boister and Cryer have noted the multi-faceted character of his legal and political phil- osophy.68 This is why during the Cold War decades Pal found common ground with Japanese nationalists over pan-Asianism and anti-communism, with the non-aligned movement over anti-colonialism and self-determination, and with Western anti- militarists over American foreign policies – and was lionized by them all. 11 New Forms of Victors’ Justice In the early 1980s Pal’s dissentient legacy began to fade, and a new wave of pro- gressive Japanese historians sought to move beyond the good trial/bad trial argu- ment. Totani observes that this generation, armed with newly declassified documents and mindful of Japan’s growing assertiveness in Southeast Asia, concluded that the problem with the Tokyo trial was not that it went too far, but that it did not go far enough.69 Led by their doyen Awaya Kentarō, they criticized the prosecuting powers for ignoring their own crimes of Hiroshima and Nagasaki and for selecting Japan’s crimes in line with their own concerns – concentrating, for example, on the experi- ence of whites rather than Asians, failing to indict the Emperor Shōwa, and ignoring Unit 731’s bacteriological experiments. They argued that the trial had been driven by political expediency in furtherance of a status quo imposed by the United States and the colonial powers in East Asia and the Pacific, and therefore it was victors’ justice, albeit of a different variety than that identified by the nationalists. As such, it hindered Japan’s ability to face up to its own past. This more radical reading of the trial was guided by modern assumptions about the Allies’ prejudices which, as Totani skilfully shows, were sometimes misplaced. She disputes the view that prosecutors, driven by racism and non-legal priorities, paid little heed to Asian victims. She argues that they did focus on the Asian experience, and for good reason: the colonial powers wished to re-establish their shaky credibility in recently reclaimed colonies by making common cause with the colonized.70 Fur- thermore, she notes that contrary to claims of gender prejudice, the prosecutors did pay attention to the sexual violence perpetrated against Asian women, especially in China and the Dutch East Indies, although they failed to convince the judges that such actions were the outcome of the defendants’ orders from on high.71 Her argument breaks down, however, when she takes issue with the idea that the trial was a manifestation of victors’ justice, designed to sustain American and 68 Kopelman, ‘Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial’ 23 NYU J Int’l Law & Pol (1991) 373, at 375–376; Boister and Cryer, at 286–291. 69 Totani, at 250. 70 Ibid., at 162–163. 71 Ibid., at 178–179, 185. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ Imperfect Justice at Nuremberg and Tokyo 1101 colonial interests in Asia. Leaving aside her preoccupation with Japan’s perception of itself as a nation either traduced or suborned by the Allies, one must conclude that any trial conducted after a war is de facto victors’ justice. Indeed, several contributors to Mettraux’s anthology make precisely this point. ‘In the existing state of international law it is probably unavoidable that the right of punishing war criminals should be uni- laterally assumed by the victor,’ wrote Hersch Lauterpacht in 1944.72 David Luban further argued that, because the crimes against peace charge criminalised efforts to enforce itself, leaders could only be prosecuted once they had embarked on and been beaten in an aggressive war, and that consequently, ‘Only victors’ justice is possible.’73 12 Tests of History In the course of challenging some of the negative misapprehensions about the Tokyo Tribunal, Totani reaches for more positive interpretations than its legacy has thus far allowed. The material she presents, however, tends to undermine her assertions. So she maintains, for example, that the trial ‘marked the starting point of Japan’s con- frontation with its past’,74 but then chronicles the perennial objections relating to the court, the charges, and the prosecution’s evidence – all of which prove that the Tri- bunal failed in its didactic function. She further states that the trial’s findings estab- lished the chronological and geographical framework of the postwar ‘historiography of World War II’,75 and then undercuts this position by describing the persistent focus in Japan on the absences in the Tribunal’s narrative: the unmentioned Allied crimes, the unaddressed Japanese crimes, the un-indicted Emperor. As the presiding judge William Webb cautioned at the time: ‘A Judgment may itself be historic, yet its con- tents may be incomplete as history’76 – all too incomplete, the critics thought. Continuing in a positive vein, Totani maintains that despite the mishandling of the conspiracy counts, the Tribunal’s findings on the substantive counts have ‘stood up to the test of history’.77 While no serious impartial commentator has contested the find- ings on war crimes, the same cannot be said of the findings on crimes against peace, which are still the subject of debate. This interrogative process began as early as May 1948, when the French judge Henri Bernard complained that a draft of the Judgment contained tendentious readings of Russo-Japanese relations, offered an opinion on Japan and the Hague Convention that had not been proved, and raised Japan’s Open Door policy in China despite discussion of it being barred in court.78 The passages to which he objected appeared in the majority’s Judgment, and concerned matters 72 Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ (1944), in Mettraux, at 14. 73 Luban, supra note 19, at 658. 74 Totani, at 2. 75 Ibid., at 97. 76 Boister and Cryer, at 312. 77 Totani, at 97. 78 Australian War Memorial, Webb papers, 3DRL 2481 Series 4/7/4: Bernard to Tribunal members, ‘Remarks Suggested by Draft of Judgment’, 10/5/48. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 1102 EJIL 21 (2010), 1085–1102 which continue to exercise scholars to this day. Pronouncements on the tests of his- tory are in this instance premature. It is possible that Totani’s interesting and useful attempt to reconsider the trial’s reputation will herald a new generation of Japanese commentators. Inspired by developments in international criminal law, aware of Japan’s growing military obli- gations abroad, and keen to recast relations with their Chinese neighbour, they will have many motives for clearing away the political detritus that has accreted around the trial over the past six decades. But it is one thing to challenge misinterpretations, and quite another to attempt the rehabilitation of a deeply flawed enterprise. Tokyo was the very blackest of courtroom dramas, with an abundance of sombre lessons for jurists as well as for politicians and historians. It is to be hoped that future generations will pay heed to them. 13 In Conclusion These three books make a strong contribution to our understanding of the formation, conduct and outcome of the postwar tribunals, and offer important insights into some of the issues that are of practical relevance to the development of international crim- inal law today. Guénaël Mettraux has brought together many of the essential writ- ings about the Nuremberg Tribunal into a single volume; Yuma Totani has offered thought-provoking new perspectives on the Tokyo Tribunal; and Neil Boister and Robert Cryer have produced a nuanced analysis of the legal issues arising from that trial. Lawyers will find instructive material in them all. a t N e w Y o rk U n ive rsity o n F e b ru a ry 1 , 2 0 1 1 e jil.o xfo rd jo u rn a ls.o rg D o w n lo a d e d fro m http://ejil.oxfordjournals.org/ 
work_4hsiral7jjhaxj25yxxs3ikfau	----	Originalni naučni rad Primljen: 9. 2. 2017. Revidirana verzija: 29. 3. 2017. Prihvaćen: 29. 3. 2017. UDK: 340.114 340.134 doi: 10.5937/nabepo22-13148 PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST1 Dragan M. Mitrović2 Pravni fakultet Univerziteta u Beogradu „Mora da je strašno verovati u neki autoritet kao istinu umesto u istinu kao jedini autoritet.“ Sažetak: Cilj ovog rada nije da podrži postojanje proceduralne pravde, za šta se zalažu najpoznatiji zagovornici shvatanja o po- stojanju proceduralne pravde (Dž. Rols i O. Hefe, a zatim L. Fuler, H. Hart, R. Dvorkin, P. Koler, M. Van den Bos i drugi), već da pro- ceduralnu pravdu razmotri iz ugla istinitosti i ispravnosti. Budući da se ne radi o istim već povezanim pojmovima, može se zaklju- čiti da se istinitost i ispravnost ne podudaraju, isto kao što se ne podudaraju pravda i pravo. Nešto što je istinito ne mora da bude ispravno. I obrnuto, nešto što je ispravno ne mora da bude istini- to. Očigledno, reč je odnosu cilja (istinitosti, pravde i pravičnosti) i sredstva (ispravnosti, korektnosti, preciznosti, pouzdanosti itd., rečju solidnosti). Razmatranje odnosa istinitosti i ispravnosti na primeru stvarno postojeće pravde i stvarno nepostojeće proceduralne pravde, po- kreće druga važna pitanja, npr. odnosa materijalnih (supstancijal- nih) i formalnih (proceduralnih) pravnih pravila, pravičnosti kao 1 Ovaj članak je rezultat rada na istraživačkom projektu Pravnog fakulteta Univerziteta u Beogradu za 2017. godinu pod nazivom „Identitetski preobražaj Srbije“ koji finansira Ministarstvo za nauku i tehnološki razvoj Republike Srbije.. 2 Dr Dragan M. Mitrović, redovni profesor Pravnog fakulteta Univerziteta u Beogradu, draganm@ius.bg.ac.rs Dragan Mitrović [2] NBP • Žurnal za kriminalistiku i pravo mesta susretanja pravde, prava i procedure itd. U još dubljoj senci nalazi se pitanje odnosa prirodnog i pozitivnog prava. Može se zaključiti da proceduralna pravda ne postoji. Ali, pravda postoji, samo ona nije proceduralna, što nije ni pravičnost. Pro- cedura je jedino ispravno sredstvo prava, ali pravo nije jedino ispravno sredstvo pravde. Ključne reči: pravda, pravičnost, istinitost, ispravnost, procedu- ralno pravo, proceduralna pravda. Uvod Pravda (iustitia) predstavlja vrhunsku društvenu i pravnu vrednost. Ona je vrednost zbog toga što je jedna vrsta srazmernosti i sklada, sve do postiza- nja harmonije, koja je drugi naziv za apsolutnu pravdu. Pored te apsolutne, božanske ili prirodne pravde, postoji i društvena pravda sa svojim izvedenim vrstama (moralna, religijska, pravna), koja je relativna u ljudskim razmerama.3 Posebnu vrstu predstavlja pravna pravda. Ona je važna vrsta društvene pravde jer se smatra sinonimom ili za srazmerno, ili za jednako. Određuje se prema dva formalna pravna obrasca, zbog čega se govori o dve vrste pravne pravde. Prva je distributivna pravda (iustitia distributiva: „svakome srazmer- no“), koja je prvobitna, položajna i nalaže da se „nejednako postupa s nejed- nakima“. Druga je komutativna (iustitia commutativa: „svakome jednako“), koja je razmenska i nalaže da se „jednako postupa s jednakima“. U najužem značenju, pravna pravda označava saobražavanje zakonu (zakonska pravda / iustitia legalis). Može se govoriti i o sudskoj pravdi (a ne samo o pravičnosti) kao posebnoj vrsti ispoljavanja pravde tamo gde su sudske presude izvori pra- va. Ali na pitanje u čemu se sastoji materijalna pravda, ne može se odgovoriti nikakvim sličnim obrascem, osim najstarijim, antičkim, da je pravedno služiti opštem dobru.4 Na primer, najnoviji pokušaji da se odredi solidarna pravda, po kojoj od zajedničkih dobara više treba dati slabim i siromašnim a manje ja- čim i bogatim (pravda Robina Huda), nisu obrasci materijalne pravde kakvim se predstavljaju, već Aristotelove distributivne pravde. A ona je formalna. Pravna pravda, budući da je vrsta društvene pravde, nije savršena. Ali to nije ni pravo. Zbog toga između nesavršene pravne pravde i još nesavršenijeg prava uvek postoji manja ili veća napetost.5 Pravdu je lakše osetiti nego odre- 3 Vid. P. Holbah, Sistem prirode, Beograd, 1950; Aristotel, Nikomahova etika, Beograd, 1970. 4 H. Kelzen, Elementi teorije pravnih normi. Pozni izabrani spisi, Beograd – Podgorica, 2003, str. 122. 5 T. Živanović, Sistem sintetičke filozofije prava, III, Beograd, 1959, str. 675–679. NBP • Journal of Criminalistics and Law [3] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST diti ili postići, jer pravo nikad ne može da postane sama pravda. Zbog toga je svako pravo u određenoj meri nepravedno. Ali, ono ne sme da postane izopa- čeno i da ostvaruje krivdu. Imajući upravo to na umu, Ciceron (Marcus Tu- llius Cicero) odredio je svrhu prava kao veštinu prave mere pri podeli dobara među građanima (Sit ergo in iure civili finis hic legitimae atque usitatae in rebus causisque civium aequabilitatis conservatio). Time je osvežio stariju Platonovu i Aristotelovu ideju o postizanju opšteg dobra kao najvećeg postignuća mate- rijalne pravde. To znači da „normalno pravo“ mora sadržati barem „minimum pravde“, koja se preko opštih pravnih principa uliva u pravo (kako predlaže R. Dvorkin / R. Dworkin). Ali, ni takva pravda nije proceduralna.6 1. Rolsovo i Hefeovo shvatanje proceduralne pravde Budući da je od sredine prošlog veka obnovljeno a zatim i pojačano in- teresovanje za prirodnopravna istraživanja,7 sve češće je počelo da se govori o vrstama pravde: međunarodnoj, političkoj, korporativnoj, solidarnoj, orga- nizacionoj, transakcionoj, kompenzacionoj itd.,8 različitim od tradicionalnih oblika religijske, moralne i pravne pravde. Šta više, sve češće je počelo da se zagovara postojanje proceduralne pravde kao posebne vrste pravne pravde, pored zakonske i sudske pravde. Takvo zalaganje je prihvaćeno sa izvesnim olakšanjem u pozitivistički usmerenoj jurisprudenciji na Zapadu. Ono se može smatrati njenim zakasne- lim odgovorom na renesansu prirodnopravnih učenja u drugoj polovini XX veka. Neobično je da se za proceduralnu pravdu zalažu i pisci koji pripadaju suprotnoj orijentaciji. Takvo zalaganje se može smatrati neodmerenim odgo- vorom pripadnika prirodnopravne jurisprudencije. Ali, to olakšanje prvih i zalaganje drugih nije ni umesno ni korisno, jer proceduralna pravda ne po- stoji. Ona je samo jedan misaoni konstrukt (konstrukcija) i eksperiment u pravnoj filozofiji i teoriji. 6 Budući da glavna tema nije pravda, već njena izvedenica, tzv. proceduralna pravda, to o brojnim shvatanjima pravde dodatno vid. njihov pregled u Encyclopaedia Britanica. Ulti- mate 2014 Free Download. 7 Do toga je došlo zahvaljujući filozofsko-naučnom učinku G. Radbruha (Gustav Rad- bruch), izloženom pre svega u njegovom čuvenom delu Filozofija prava, a zatim je poja- čano u nemačkoj pravnoj filozofiji i anglosaksonskoj jurisprudenciji. Vid. G. Radbruh, Filozofija prava, Beograd, 1980 (2016). 8 Vid. R. T. Di Džordž, Poslovna etika, Beograd, 2003; R. Nozik, Anarhija, država, utopija, Zagreb, 2003; B. B. Sovilj, Put kroz pravo do pravde, Petrovaradin, 2004; Ž. Vučković, Bi- znis i moral, 2006; I. Kant, Zasnivanje metafizike morala, Beograd, 2008. Dragan Mitrović [4] NBP • Žurnal za kriminalistiku i pravo Najpoznatiji zagovornici učenja o postojanju proceduralne pravde su Džon Rols i Otfrid Hefe. Pored njih, i drugi pisci, pretežno anglosaksonski (L. Fuler / L. Fuller, H. Hart / H. Hart, R. Dvorkin, F. Hajek / F. Hayek i M. van den Bos / M. van den Bos) zagovaraju slično učenje. Kada je reč o učenju Džona Rolsa (John Rawls) o proceduralnoj pravdi, „princip otvorenosti položaja“, izložen u njegovom čuvenom delu Teorija prav- de,9 sadrži zamisao o idealnom početnom društvenom uslovu ili položaju kao i uverenje da „svi položaji“ pojedinaca u društvu nisu „otvoreni“ (iako neki ipak jesu). Ovo drugo, Rolsovo uverenje, pokazuje da pojedinci nisu jednaki čak ni u pogledu raspolaganja mogućnostima. Uostalom, poznato je da druš- tvena utakmica nikad nije nepristrasna i pravedna, jer je nameštena pre samog početka. Čak ni u Rusoovom idealizovanom opisu prirodnog stanja ljudskog roda „bez utakmice“ ne postoji takva sasvim „poštena“ jednakost − ljudi su različiti, a samim tim i nejednaki.10 Tu činjenicu, na koju je već ukazao Žan- Žak Ruso (Jean-Jacques Rousseau) govoreći o „plemenitim divljacima“, Rols prihvata kao očiglednu, ali uprkos tome, i dalje smatra odlučujućom svoju idealizovanu viziju nužne nepristrasnosti u pogledu „jednakosti mogućnosti“, a time i nužne ispravnosti pojedinaca u društvu. Naravno da takva nepristra- snost i ispravnost kod osvešćenih pojedinaca može da proizvede samo osećaj lične osujećenosti i nepravde.11 Takva „otvorenost položaja“, od koje Rols polazi govoreći o proceduralnoj pravdi, odnosi se i dalje prenosi na sve čisto proceduralne situacije u kojima pojedinci mogu da se nađu (od vrste i način korišćenja proceduralnih pravila prilikom određivanja početnog položaja pojedinca u društvu ili zaposlenog u preduzeća, sve do položaja okrivljenog ili svedoka u postupku pred sud- skim organima). Šta više, nepostojanje nužne nepristrasnosti u društvenom i pravnom smislu, kao i ishodeće ispravnosti u pogledu društvenog ponašanja i pravilne primene pravnih propisa12 (reči koje Rols pominje kao neku vrstu mantre) ne samo da pojedince lišavaju rezultata njihovih pregnuća već im oduzimaju mogućnost da dožive lično „iskustvo samoostvarenja“ koje je jed- no od nekoliko „glavnih oblika ljudskog dobra“ uopšte. Time Rols potvrđuje, možda nesvesno, opštu teodicejsku tragičnost ljudskog bića, jer sve što tvrdi ide u prilog zaključku suprotnom njegovim početnim postavkama. Ovaj svet se zbilja menja zbog uticaja podsticajnih i prihvatljivih ideja, ali ovom svetu same ideje i zamisli nisu dovoljne. Kada se razmotri Rolsovo shvatanje o proceduralnoj pravdi, može se za- paziti da se glavni nedostatak u njegovom učenju sastoji u tome što društvena 9 Dž. Rols, Teorija pravde, Beograd – Podgorica, 1998, str. 91. 10 Vid. Ž. Ž. Ruso, Rasprava o porijeklu i osnovama nejednakosti među ljudima, Zagreb, 1978. 11 Dž. Rols, Opus citatum, str. 93. 12 Ibidem, str. 92 i dalje. NBP • Journal of Criminalistics and Law [5] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST i pravna pravila pomoću kojih određuje postavke i merila za uspostavljanje pojma proceduralne pravde (on) unapred proglašava proceduralnim iako ona to nisu. To su pre svih pravila kojima se određuje „princip otvorenosti polo- žaja“ kao i pravila koja utvrđuju način nepristrasnog i ispravnog sprovođenja proceduralnih normi, a ona su materijalna iako se odnose na način izvođenja procedure. Već ta činjenica pokazuje da je Rolsova glavna postavka, sadržana u njegovom „principu otvorenosti položaja“, virtuelna i fiktivna, kao i Kelze- nova „pranorma“. Ta postavka ne postoji i ne može se koristiti kao polazište za određivanje proceduralne pravde. Kao što je pomenuto, razlog je očigledan: „princip otvorenosti položaja“, kao i „princip nepristrasne mogućnosti“ (kao načina za postizanje) „jednakosti“, materijalnog je a ne proceduralnog karak- tera. Reč je o materijalnim pravilima koja određuju način na koji će se sprovo- diti čisto proceduralna društvena i pravna pravila. Isto se može reći i za Rolsove „nezavisne kriterijume“, tj. merila ili standar- de koji treba da uspostave proceduralnu pravdu.13 Ni oni nisu proceduralnog već materijalnog karaktera. Oni, čak, mogu da budu pravedni, ali ne kao sa- stojak proceduralne pravde. Treba naglasiti da takva jasna merila i standardi uopšte ne postoje − zbog čega nisu jasno određeni ni u Rolsovom učenju, niti postoji izvodljiva procedura koja neizostavno dovodi do ispravnog ishoda, tj. do proceduralne pravde. Ali sve to nije sprečilo Rolsa da ustvrdi kako ne- pristrasna procedura „prenosi“ svoju nepristrasnost na ispravan, tj. pravičan „ishod“. Dakle, opet je reč o njegovom uverenju da može da se ostvari proce- duralna pravda. Rols takođe tvrdi da više nije nužno voditi računa o beskrajno različitim okolnostima i stalnim promenama relativnih položaja određenih osoba, kao što je nekad činjeno u građanskim ugovorno-prirodnopravnim teorijama, jer je dovoljno da je sistem (državni, a naročito pravni) ispravno postavljen („strukturiran“). Kao da sistem može ono što priroda nije uspela. Tom prili- kom je zanemario da su Žan-Žak Ruso i Džon Lok (John Locke) mnogo pre njega uspostavljanje državnog sistema i sistema prava izvodili iz prirodnog i društvenog stanja, a ne prirodno i društveno stanje iz istog takvog državnog i pravnog sistema. Kao što je pomenuto, ni u tom konstruktu ili simulakrumu prvobitnog stanja, kao i kasnijeg društvenog stanja, pojedinci nisu jednaki.14 Umesto tog putokaza, Rols uslove (koje sam unapred postavlja) organizuje u veštački stvorenu virtuelnu zamisao „prvobitnog položaja“.15 Tvrdeći da je pogrešno usmeriti pažnju na promenljive relativne položaje pojedinaca i oče- kujući da svaka takva promena bude po sebi pravedna, Rols sam osporava vla- stitu početnu postavku i priznaje da je ona fiktivna, da je takođe reč o jednom 13 Ibidem. 14 Ibidem, str. 119 i dalje. 15 T. Glintić, Pogovor knjizi Dž. Rolsa Teorija pravde, str. 526−527. Dragan Mitrović [6] NBP • Žurnal za kriminalistiku i pravo konstruktu i simulakrumu. Slični problemi su svojevremeno prisilili Ronalda Dvorkina da razvije svoju političku teoriju prava, posle svoje pravne teorije (koja nije mogla da odgovori na vrhunska pravna pitanja koja je sebi stavio u zadatak da reši).16 Ni u ovoj drugoj, političkoj, Dvorkin takođe nije uspeo da pronađe merila i standarde za prelivanje prirodnog u pozitivno pravo. Umesto njih, uspeo je samo da izloži uputstva, a slično postupa i Rols kada govori o proceduralnoj pravdi. Rolsovo shvatanje „principa otvorenosti položaja“ i postojanja „nezavisnih kriterijuma“, očigledno, stvar je njegovog ličnog uverenja. Ali, to je slučaj i sa Rolsovim shvatanjem savršene i nesavršene proceduralne pravde. Jednostav- no, nije moguće odrediti postupak koji sigurno pruža željeni rezultat u smislu postizanja proceduralne pravde, pogotovo ne automatski. To priznaje i sam Rols, koji je u pravu kada kaže da savršena proceduralna pravda ne postoji, ali greši kada tvrdi suprotno za nesavršenu proceduralnu pravdu, jer procedural- na pravda uopšte ne postoji.17 I jedna i druga su himere. Pravda nije himera, ali nije ni proceduralna. Kada je reč o shvatanju Otfrida Hefea (Otfreid Höffe), koje je izloženo u njegovoj knjizi Pravda. Filozofski uvod,18 prvo treba primetiti da Hefe svoje izlaganje o proceduralnoj pravdi započinje tvrdnjom da su za pravno obavezu- juće odluke „neophodni definisani postupci“. To nije sporno, ali je sporno ne- što drugo: njegova tvrdnja da se ti postupci „zasnivaju na principima pravde“ (npr., kakve veze ima postupak za naplatu poreza od građana sa principima pravde?; ko to tvrdi, mora da prizna da je svaka država koja naplaćuje porez od svojih građana pravedna ili da barem počiva na principima pravde).19 Sporna je i sledeća Hefeova tvrdnja. On kaže: „Kada je reč o postupku, ne radi se neposredno o sadržajima ili rezultatima, već o nadležnostima, rokovi- ma i formama“ koje nisu same sebi svrha već „proizvode onu opštu spremnost da se prihvate odluke zakonodavca koje još nisu sadržinski određene“ (tu Hefe brka spremnost građana da imaju zakonodavca sa njihovom spremnošću da prihvate zakonodavčevu „mačku u džaku“, u obliku svakog budućeg zakona čiju sadržinu unapred ne mogu da upoznaju). I dalje, „postupci moraju biti otvoreni za potrebe i interese onih kojih se oni tiču“ (to samo u slučaju da su odnosni subjekti telepate kada je reč o budućim zakonima − naknadno upoznavanje sa takvim zakonima, kada su već doneti, štetno je za građane i opasno). Uz to, dodaje Hefe, sami postupci moraju biti „takvi da se mogu na- učiti“ (zašto i od koga?)... „i, pored toga, oni se moraju oslanjati na prethodne 16 Vid. R. Dvorkin, Carstvo prava, Beograd, 2003; Shvaćanje prava ozbiljno, Zagreb, 2003. 17 Vid. Dž. Rols, Opus citatum, str. 90−95. 18 Vid. O. Hefe, Pravda. Filozofski uvod, Novi Sad, 1998. O ovoj Hefeovoj knjizi vid. sa- držajan prikaz: I. Jovanov, Pravda. Filozofski uvod, Zbornik Pravnog fakulteta u Novom Sadu, br. 2/2014, str. 495−500. 19 O. Hefe, Opus citatum, str. 47. NBP • Journal of Criminalistics and Law [7] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST datosti koje su, sa svoje strane, takođe pravedne − koje, u najmanju ruku, nisu nespojive sa supstancijalnom pravdom“ (?!).20 Zatim Hefe razlikuje tri vrste proceduralne pravde, za razliku od Rolsa koji se zadovoljava sa dve njihove vrste. Reč je o „čistoj“, „nesavršenoj“ i „savrše- noj“ proceduralnoj pravdi. Samo „čista“ proceduralna pravda predstavlja ne- što više od „puke supsidijarne legitimacije“, koju Hefe vezuje za „nesavršenu pravdu... koja preovlađuje u pravu i državi“. Propustio je da zapazi da je „nesa- vršena pravda“ od one vrste od koje je „gvožđe drveno“. Kako god bilo, čak ni Hefeova nesavršena pravda (za koju on sam priznaje da preovlađuje u pravu i državi) ne može da bude lišena ispravno vođenog postupka, nepristrasnosti itd.21 U protivnom, važila bi Ulpijanova (Domitius Ulpianus) izreka „Zakon važi jer tako hoće vladalac“ (Quod principi placuit, legis habet vigorem). Hefe tvrdi i da „čista“ pravda „leži u samom postupku, dok o kriterijumu za pravedan rezultat, koji bi bio nezavisan od postupka, ne može biti reči“.22 On time pojam pravde izvodi iz proceduralnih normi i tvrdi da se proceduralna pravda može izvesti iz sebe same, iz vlastitih merila koja ne mogu unapred da obezbede pravedan rezultat (što je njegov originalni „orobourus“). Na taj na- čin, on relativizira pravdu, kao i Majkl Volzer (Michael Voltzer), i dozvoljava da se pravednim smatra i ono što je nepravedno. Jedino Volzer pravdu izvodi iz promenljivosti društvenih uslova i odnosnog kulturnog miljea društva,23 dok Hefe to direktno čini iz proceduralnih pravila koja ne moraju da obezbe- de pravedan rezultat u obliku zakonske ili sudske pravde ili pravičnosti. Uz to, Hefe ne objašnjava zašto su proceduralna pravila uopšte pravedna, osim što ih on takvim smatra. Ako je uverenje argument u filozofiji, to nije slučaj u nauci. Druge dve vrste proceduralne pravde ostvaruju se „putem postupka“. Kod tzv. savršene proceduralne pravde „postoji neko nezavisno merilo za pravedan rezultat, kao i postupak kojim se taj rezultat ostvaruje sa približnom izvesno- šću“. Zatim Hefe daje primer jednake podele kolača, što se odnosi na komuta- tivnu a ne proceduralnu pravdu. Propustio je da zapazi da je za (komutativnu, a ne za proceduralnu) pravdu važno da su delovi jednaki, a ne na koji način i kojim sredstvom se kolač seče na jednake delove (što bi, valjda, trebalo da važi za nepostojeću proceduralnu pravdu).24 Takođe, Hefe tvrdi, kada je reč o „nesavršenoj proceduralnoj pravdi“, da i tada „za pravedan rezultat postoji jedan nezavisan kriterijum“. Njega Hefe ilustruje primerom iz krivičnog prava i tvrdi da je krivična proceduralna pravda postignuta kada su svi pravi krivci, ali samo oni, kažnjeni srazmerno svojoj krivici.25 Ali, takav nezavisan kriteri- 20 Ibidem. 21 Ibidem, str. 48. 22 Ibidem. 23 M. Volzer, Područje pravde, Beograd, 2000, str. 16 i dalje. 24 O. Hefe, Opus citatum, str. 48. 25 Ibidem. Dragan Mitrović [8] NBP • Žurnal za kriminalistiku i pravo jum ne postoji. A ne postoji ni pravni sistem koji nepogrešivo kažnjava samo krivce. Tim primerom Hefe samog sebe osporava: prvo, zato što brka materi- jalna sa proceduralnim pravilima, i drugo, zato što brka pravedan ishod (da su samo krivci kažnjeni) sa ispravno izvedenom procedurom (koja dozvoljava da se postigne takav pravedan cilj u obliku sudske pravičnosti). To i sam uviđa, kada priznaje da je „očigledno da ne postoji nikakav postupak koji isključuje sudske zablude i koji sprečava kažnjavanje nevinih kao i nekažnjavanje kriva- ca... suviše preoštro ili suviše blago“. Jasno je da takva relativna pravda nije ni pravna ni proceduralna. Treba skrenuti pažnju i na činjenicu da Hefe ne pravi jasnu razliku između proceduralne pravde26 (koja ne postoji) i prava na pravično suđenje27 (koje po- stoji). On, istina, navodi izreke „Da se čuje i druga strana“ (Audiatur et altea pars) i „Niko nije sudija u sopstvenoj stvari“ (Nemo ex iudex in causa sui), ali zanemaruje činjenicu da je pravo na pravično suđenje zbirni naziv za niz materijalnih pravila i preporuka o sprovođenju istražne i sudske procedure, a ne skup formalnih proceduralnih pravila koja ulaze u sastav proceduralne pravde. Takođe, on zanemaruje da se pravo na pravično suđenje odnosi na zaštitu prava ljudi u svim fazama postupka pred sudskim ili drugim držav- nim organima, kao i da se radi o materijalnim a ne proceduralnim pravilima. To potvrđuju najvažniji međunarodni dokumenti u kojima jasno stoji da ovo pravo predstavlja osnovno ljudsko pravo i da je jedno od opštevažećih nače- la. Kao takvo, ono ne može da bude samo proceduralne prirode. Na primer, pravo na pravično suđenje sadržano je u Univerzalnoj deklaraciji o ljudskim pravima, Međunarodnom paktu o građanskim i političkim pravima General- ne skupštine UN, Evropskoj konvenciji o ljudskim pravima i drugim sličnim međunarodnim ugovorima, pa čak i u normama međunarodnog običajnog prava. U svim dokumentima, a posebno u čl. 6 Evropske konvencije o ljud- skim pravima, određeni su međunarodni standardi vezani za pravo na pra- vično suđenje. Njihovo određivanje i razrada su zasnovani na ideji da kada se ljudska prava ne poštuju u policijskoj stanici, sobi za saslušavanje, pritvoru, sudu ili zatvorskoj ćeliji, da tada vlast očigledno ne ispunjava svoje obaveze. Očigledno, ta pravila su nadahnuta pravdom, možda i jesu pravedna, ali nisu proceduralna.28 26 Ibidem, str. 49. 27 Vid. N Mole, C. Harby, Pravo na pravično suđenje. Vodič za primenu člana 6 Evropske konvencije o ljudskim pravima, Beograd, 2003. 28 Međunarodni standardi za pravično suđenje mogu da se podele u dve grupe: na prava pre suđenja (pravo na slobodu, pravo pritvorenika na informaciju i kontakt sa spoljnim svetom, pravo na advokata pre suđenja, pravo na izvođenje pred sudiju ili drugi sudski organ u najkraćem mogućem roku, pravo na osporavanje zakonitosti pritvora, pravo na suđenje u razumnom roku ili na puštanje iz pritvora, pravo na adekvatno vreme i moguć- nosti za pripremu odbrane, prava tokom saslušanja, pravo na humanitarne uslove pritvora i zabrana torture) i prava na suđenju (pravo na jednakost pred zakonom i sudovima, pravo NBP • Journal of Criminalistics and Law [9] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST Na kraju, Hefe zaključuje da se „mora voditi računa o poštenom postupa- nju prema učesnicima“, da se mora imati u vidu stvarna i lična nezavisnost sudija, javnost postupka, pravni lekovi, procesni rokovi itd., jer „bez pravne sigurnosti, kojoj oni služe, nema ni stvarne pravde“. Ali, ni tada se ne radi o proceduralnoj pravdi, već o pravilima koja treba da obezbede pravično suđe- nje. Njihov prvenstveni cilj nije pravednost već pravna sigurnost. 2. Istinitost i ispravnost Kao što je nagovešteno, cilj ovog rada nije da podrži ideju o postojanju proceduralne pravde, za šta se zalažu Džon Rols, Otfrid Hefe i drugi pisci, već da je ospori. To će biti pokazano pozivanjem na očigledno: da je pravda sino- nim za istinitost, a ne za nepristrasnost i ispravnost na kojima pisci pogrešno zasnivaju svoj pojam proceduralne pravde. Da pravdu treba izvoditi iz prirode, tj. istinitosti, potvrđuju brojni pisci koji pojam pravde izvode iz same prirode, od antičkih do savremenih. To važi i za Srbe, kod kojih je pravda uvek izvođena iz onog što „jeste“, što je prirodno i istinito. Pravda je „osnov svega“ (sv. Sava). Ona je istina jer „pravedno je samo ono što je istinito“ (D. Obradović). U protivnom, mora da je strašno verovati u neki autoritet kao istinu umesto u istinu kao jedini autoritet.29 Takvo tradicionalno metafizičko gledište ne dele svi pisci.30 Na primer, prema Peteru Koleru (Peter Koller) pravda je najvažniji deo morala, jer njeni standardi ne izražavaju samo ono što je dobro ili loše već i ono što je ispravno i pogrešno u našim odnosima sa drugim ljudima. To znači da Koler pojam pravde, koji se tradicionalno izvodi iz istinitosti, proširuje uvođenjem poj- ma ispravnosti.31 Drugi pisci, naročito u oblasti društvenih nauka, prihvataju na suđenje pred kompetentnim, nezavisnim, nepristrasnim i zakonom ustanovljenim su- dom, pravo na pravičnu raspravu, pravo na javnu raspravu, pretpostavka nevinosti, pravo da osoba ne bude prinuđena da svedoči protiv sebe ili da prizna krivicu, zabrana upotrebe dokaza iznuđenih torturom ili prinudom, zabrana retroaktivne primene krivičnih zakona i dvostruke ugroženosti /ne bis in idem/, pravo na suđenje bez nepotrebnog odlaganja, pravo da se osoba brani sama ili uz pomoć advokata, pravo osobe da prisustvuje suđenju i žalbenom postupku, pravo da se pozivaju i ispituju svedoci, pravo na tumača i na prevod, pravo na žalbu). Navedeni standardi takođe podrazumevaju da presude moraju da budu izrečene javno, da svako kome je suđeno mora da dobije obrazloženje sudske odluke, da mogu da sude samo sudije koje su učestvovale u postupku, da izrečene kazne moraju da budu individualne (a ne kolektivne), srazmerne, saglasne navedenim međunarodnim standardima itd. Vid. N. Mole; C. Harby, Opus citatum, str. 34−65. Nav. prema D. Mitro- vić, Teorija države i prava, Beograd, 2010, str. 534. 29 D. Mitrović, Opus citatum, str. 530. 30 Vid. M. Trajković, Etička dimenzija prava – pravnoteorijski aspekt, Novi Sad, 2008. 31 P. Koler, O socijalnoj pravdi, Anali Pravnog fakulteta u Beogradu, br. 1/2005, str. 8, 11. Dragan Mitrović [10] NBP • Žurnal za kriminalistiku i pravo „zdravo za gotovo“ da proceduralna pravda postoji i taj konstrukt umnožavaju izmišljajući različite simulakrume, tj. različite vrste proceduralne pravde koje takođe ne postoje (npr., krivične proceduralne pravde, a zašto ne i građanske proceduralne pravde, upravne proceduralne pravde itd.). Možda je zbog toga pravi trenutak da se iznese nekoliko zapažanja o od- nosu istinitosti i ispravnosti uopšte (koji postoji), a zatim i o odnosu pravde i proceduralne pravde (koji ne postoji). Pre svega, proceduralna pravna pravila mogu da obezbede samo ispravnost u smislu pravilnosti, predvidljivosti i pouzdanosti (npr., u skladu sa prime- nom materijalnih pravila nepristrasnosti i poštenja, fer-pleja), ali ne mogu da obezbede istinitost i pravednost. Ispravnost je pravilno postupanje. Nešto je ispravno urađeno zato što je izvedeno na pravilan, sistematski i stručan na- čin, a ne zato što je istinito ili pravedno. Tu se istinitost pojavljuje samo kao mogući cilj ili poželjan rezultat, a ne kao sastojak odnosne procedure koja je samo sredstvo za moguće postizanje tog željenog cilja. Ispravnost je naročito važna za pravo, koje je ispravno kada je pogodno za rad, odnosno neisprav- no kada nije pogodno za rad.32 Dakle, proceduralna pravda ne može da bude ništa više osim „primenjivačke ispravnosti“. Takva ispravnost je korisna jer može da posluži kao „pouzdano merilo“ i „rukovodno načelo“.33 Ali, to nema nikakve veze sa pravdom koja ima svoju vlastitu svrhu („nadsvrhu“), naročito kada je nadahnutu milosrđem. Isti odnos je moguće razmatrati na drugačiji i moderniji način, iz ugla pri- rodnih nauka, koje istinitosti više ne određuju kao apsolutan već kao relati- van pojam. Danas mnogi filozofi prirode i teoretičari verovatnoće smatraju da umesto izraza „istina“ i ,„pravda“ treba koristiti izraze „verovatnoća“ i „kon- kretnost“.34 Po njima, može se govoriti samo o „stepenima istinitosti“. Njima odgovaraju „različiti stepeni verovatnoće“ koja teži da na kraju postane pot- puna, apsolutna istina. To znači da raspravljanje o istini u tradicionalnom i apsolutnom smislu treba zameniti raspravljanjem u modernom i relativnom smislu o „stepenima istinitosti“, „stepenima racionalne vere“ ili „stepenima verovatnosti“ (Dž. M. Kejns / J. M. Keynes).35 Saglasno sa tim, istina se ne smatra samo relativnom već i nedostižnom vrednošću, osim u jednom sluča- ju, kada je zbilja dostižna. To je slučaj kada se istina ostvari (utvrdi i potvrdi). Dotle se može govoriti samo o „stepenima istinitosti“ (H. Rajhenbah / H. Re- ichenbach, H. Džefriz / H. Jeffris, K. Poper / K. Popper)36 izražene u obliku 32 H. Jeffreys, Theory of Probability, Oxford Un. Press, 1948, str. 17−18. 33 A. Ros, Pravo i pravda, Beograd – Podgorica, 1996, str. 57 i dalje. 34 Filozofijski riječnik, Zagreb, 1965, str. 190−194, 381, 431. 35 Vid. J. M. Keynes, A Treatise of Probability, London, 1957, str. 71−78. 36 H. Reichenbach, The Rise of Scientific Philosophy, Un. of California Press, Barkley, 1968, str. 411; H. Jeffris, Theory of Probability, Oxford 1948, str. 341; K. Poper, Traganje bez kraja. Intelektualna autobiografija, Beograd, 1991, str. 93. NBP • Journal of Criminalistics and Law [11] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST „skalirane izvesnosti“ da je nešto istinito. Na suprotnom kraju iste skale nalazi se „pogrešnost“. Dakle, kada tvrdimo da je nešto istinito, smatraju navedeni pisci, tada kažemo samo to da lično pretpostavljamo da je nešto istinito. I ni- kada ne možemo da ustvrdimo da to nešto zbilja jeste potpuno istinito, osim u pomenutom izuzetku. To je razlog zašto pisci predlažu „pogodnost za rad“ kao osnovno istraživačevo rukovodno načelo, a ne istinitost dobijenih iskaza koji u krajnjem pripadaju našem referencijalnom sistemu (L. Vitgenštajn / L. Vittgenstein).37 Na ukratko izložena shvatanja o istini i pravdi u prirodnim naukama nado- vezuje se novi deskriptivni pristupi naučnika iz različitih društvenih oblasti. I oni se više usredsređuju na individualno shvatanje istine i pravde, dakle, na ono što pojedinci smatraju pravednim, a manje na definitivna ili istinita ap- straktna metateorijska određenja pravde. Na primer, neki pisci svoja istraživa- nja usmeravaju na istraživanje pravednosti i ispravnosti u oblastima društve- ne razmene, ugovaranja, kupovine itd., tj. u poslovnim odnosima uopšte (Dž. Grinberg / J. Greenberg) dok se drugi bave pravdom sa stanovišta posedovanja bogatstva i društvene moći (R. Nozik / R. Nozick), mogućnosti za obrazova- nje, dostupnosti medicinske zaštite (F. d’Agostino / F. d’Agostino). Takođe, pre- ispituju se priroda organizacione pravde, procedure pravednog prosuđivanja u organizacijama (R. Korpanzano / R. Corpanzano, B. Ambroz / B. Abrose) ili oblici kontrole u organizaciji (R. Šapiro / R. Shapio, E. Bret / E. Brett). Istražuju se i efekti pravde prema posledicama ispravnog ili neispravnog tretmana na radnom mestu (M. Van den Bos, G. Konlon / G. Konlon). Najzad, oživljavaju se pitanja određivanja pravde u međunarodnim odnosima (R. Dž. Bajes / R. J. Bies).38 Izgleda da su navedena istraživanja u prirodnim i društvenim na- ukama dala zamah autorima u pravnim naukama da se sve češće i upornije zalažu za postojanje proceduralne pravde (npr., u slučaju „normi i postupaka alokacije dobara“).39 Kako god bilo, ono što važi za istinu, treba da važi i za pravdu. Ipak, tvrd- nja o pravdi kao nedostižnoj vrednosti, kao i tvrdnja o istini kao nedostižnoj vrednosti, nije prihvatljiva, jer se istina ipak saznaje a pravda uliva u pozi- tivno pravo, tj. povremeno se ovaploćuje u njemu u obliku pravičnosti. To dozvoljava da se zaključi kako pravda ipak postoji (kao i istina, i to ne samo u perfektu, kao nešto što je dostignuto ili ostvareno), dakle, ne samo onako kako predlažu savremeni pisci. Takođe, ne može se smatrati tačnom ni tvrdnja da je pravda relativna u smislu skaliranja. Tu je pre reč o stepenu ostvarivanja nastojanja (uspešnosti) da se dostigne pravda. Uz to, pitanje je da li relativna pravda uopšte može da bude pravedna. Ako ništa drugo, sigurno je da postoji 37 Vid. L. Vitgenštajn, O izvesnosti, Novi Sad, 1988 38 Vid. B. Ratković Njegovan, Pravda i poslovanje, Škola biznisa, Novi Sad, 2015, str. 169−176. 39 Ibidem, str. 174. Dragan Mitrović [12] NBP • Žurnal za kriminalistiku i pravo nepromenljiva zamisao pravde koja čoveka motiviše da je dostigne, u čemu on povremeno i uspeva, uprkos tome što je tako „srećno udešen da nema nika- kvog tačnog merila istinitosti“, ali zato ima „više izvrsnih merila netačnosti“.40 Čovek nije samo racionalno već i intuitivno biće. Time se može objasniti zašto ima toliko pogrešnih predstava o istini, pravdi i njenim vrstama. Možda je od razmatranja odnosa istinitosti i ispravnosti važnije istaći da se istinitost i ispravnost ne podudaraju, kako god da se određuju u apsolut- nom ili relativnom smislu. Nešto što je istinito ne mora da bude ispravno sa proceduralnog stanovišta (npr., kada sud utvrdi materijalnu istinu, ali zbog neispravno izvedenih pravila procedure mora krivca da oslobodi krivice). I obrnuto, nešto što je ispravno ne mora da bude istinito (npr., kada se pravi- la procedure ispravno izvode ali rezultat nije istinit zbog pogrešno utvrđene materijalne istine). Očigledno, reč je odnosu cilja (istinitosti, pravde ili pravič- nosti) i sredstva (ispravnosti, pravilnosti, predvidljivosti, korektnosti, tj. so- lidnosti izvedenog postupka). Ta veza pokazuje da je ispravnost prvenstveno sredstvo za nepristrasnu primenu prava, a tek zatim i u drugom redu sredstvo za moguće postizanje pravičnosti u pravu. Takođe, navedeni odnos pokazuje da samo materijalna pravna pravila mogu da budu pravedna, dok to ne može da bude slučaj sa proceduralnim pravilima (npr., pravilo da se proceduralna pravila nepristrasno i pošteno primenjuju pripada materijalnom pravu i samo se to pravilo u ovom primeru može smatrati pravednim, dok se sama proce- duralna pravila ne mogu smatrati takvim jer je za njih dovoljno samo da budu ispravno izvedena, i to u skladu sa pomenutim materijalnim pravilom). Razmatranje odnosa istinitosti i ispravnosti na primeru stvarno postojeće pravde i stvarno nepostojeće proceduralne pravde pokreće još jedno važno pi- tanje, a to je pitanje odnosa materijalnog (supstancijalnog) i formalnog (pro- ceduralnog) prava. Prvo se odnosi na opšte pravne norme koje se razvrstaju prema svojoj sadržini, a drugo na opšte pravne norme koje se razvrstaju prema svom obliku.41 Ali i ova je podela „u velikoj meri veštačka, kao i prethodne 40 B. Paskal, Misli, Beograd, 1988, str. 72, t. 82. 41 Da podsetimo, u materijalno pravo spadaju „sve norme bilo koje pravne grane koje za odnosne pravne subjekte utvrđuju ovlašćenja, obaveze i predviđaju sankciju za njihovu povredu (norme o pravima i dužnostima supružnika, roditelja i dece, pravima građana, pravima i obavezama parlamenta, šefa države, vlade, sudova, pravima i obavezama ugo- vornih strana, naknadi štete itd.)“. Te norme su primarne jer sačinjavaju suštinu prava. U formalno pravo spadaju pravne norme koje regulišu „spoljašnji oblik i postupke za ostva- rivanje prava, tj. norme krivičnog i građanskog sudskog postupka ili upravnog, arbitraž- nog ili nekog drugog sličnog postupka (norme o načinu sklapanja i raskidanja ugovora, o načinu sklapanja i razvoda braka, o formularima koji se ispunjavaju prilikom prijave poreza, o upisu birača u biračke spiskove itd.) Norme formalnog prava su sekundarne jer je njihov glavni zadatak da služe ostvarivanju primarnih materijalnih normi... Treba po- menuti i da većina pravnih normi ima materijalni karakter, a tek njihov manji deo proce- duralni (instrumentalni) karakter, sve to kako bi se omogućilo bolje donošenje i uspešnija primena materijalnih pravnih normi“. Nav. prema D. Mitrović, Opus citatum, str. 219. NBP • Journal of Criminalistics and Law [13] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST podele, jer nije uvek lako utvrditi da li izvesna norma spada u materijalno ili formalno pravo“.42 Da je zbilja reč o veštačkoj i nepouzdanoj podeli pokazuju prikazana učenja Rolsa i Hefea, ali i Kolera, u kojima se pravila materijalnog prava, koja se odnose na primenu čisto proceduralnih pravila, svrstavaju u proceduralna pravila. Drugim rečima, zato što nije moguće jasno i do kra- ja razgraničiti jedna od drugih, zagovornici proceduralne pravde materijalna pravila koja se odnose na procedure proglašavaju proceduralnim, sve to kako bi se konstruisao pojam proceduralne pravde. Ni to se ne može prihvatiti jer, npr., pravilo nepristrasnosti i pravilo poštenja nalažu samo da se proceduralna pravila ispravno primenjuju. Ovim pravilima, kao i drugim, određuje se način sprovođenja čisto proceduralnih pravila. Nije isto odnositi se na nešto i biti nešto. Zbog toga pravilo nepristrasnosti i pravilo poštenja pripadaju materi- jalnom pravu. Kako god bilo, odnos materijalnog i formalnog prava pokazuje da je isprav- nost, a time i tzv. proceduralna pravda, samo sredstvo za primenu prava. Tako- đe, on pokazuje da samo materijalna pravna pravila mogu da budu pravedna, dok to ne može da bude slučaj sa proceduralnim pravilima. To dozvoljava da se zaključi još nešto: da je istinitost sinonim za pravdu, a ispravnost sinonim za postupke koji sami po sebi nisu niti moraju da budu ispravni, a još manje istiniti u smislu pravednosti. Dakle, ispravnost ne može da bude sinonim za pravdu i tzv. proceduralnu pravdu. U još dubljoj senci nalazi se pitanje odnosa prirodnog i pozitivnog prava.43 Izgleda da se istrajavanje na postojanju proceduralne pravde može smatrati zakasnelim odgovorom pripadnika pozitivističke jurisprudencije. Neobično je da se za postojanje proceduralne pravde zalažu i pisci koji izvorno pripadaju pravcu prirodnopravne jurisprudencije. Naročito zagovornici pozitivističkih pravnih shvatanja istrajavaju na razlikovanju pozitivnog od prirodnog prava i pravde kao istinitosti od ispravnosti kao pravilnosti. Takav pristup mogao bi se nazvati naučnim, a ne filozofskim. On nalaže pravnicima realistima-po- zitivistima da prema pravu zauzmu objektivan, vrednosno i etički neutralan stav, budući da norma, naročito proceduralna, ne mora da bude vezana ni za kakav sistem društvenih i pravnih vrednosti (npr., postizanje opšteg dobra, ostvarenje pravde, zaštita ljudskih sloboda itd.). Da su odstupili od takve vred- nosne i etičke neutralnosti pokazuje to što isti ti pravnici pozitivisti sve češće merilom pravednosti smatraju činjenicu da je norma ispravno primenjena, tačno prema određenoj proceduri, kao i da je samo to dovoljno da se pozitiv- no pravo smatra pravednim. Takva tvrdnja ne može da se prihvati ima li se u vidu da pozitivisti pravo izvode „odozdo na gore“ (kakav je u novije vreme sve 42 Ibidem, 220. 43 Vid. M. Trajković, Vrednosna usmerenost prava naspram pravnog pozitivizma, Anali Pravnog fakulteta u Beogradu, god. 62, br. 1/2014, str. 102−113. Dragan Mitrović [14] NBP • Žurnal za kriminalistiku i pravo češće slučaj sa pripadnicima anglosaksonskog pravca jurisprudencije) kao i da ga zasnivaju samo na svetu fizičke stvarnosti, umesto i na svetu metafizičke stvarnosti, jer je pravo u isto vreme realna i idealna pojava.44 Oni pogrešno svet fizičke stvarnosti poistovećuju sa svetom pravne stvarnosti (koja je vrsta „nadstvarnosti“, metastvarnosti), dok čisto idejni pravni svet (svet meta-me- tapravne stvarnosti) isključuju iz svojih razmatranja. Uprkos tim odlučujućim nedostacima, oni i dalje, zbog navodne pravednosti proceduralnih pravila, i samo pozitivno pravo rado smatraju pravednim.45 A upravo taj pravni meta- svet i meta-metapravni svet (ili „svet 2“ i „svet 3“, kako ih naziva K. Poper), koji pravnici pozitivisti osporavaju i odbacuju, pokazuje da unutar prava kao metasveta postoje dva posebna sveta, tj. dva njegova posebna obrasca: prav- ni svet pravila (metasvet materijalnih pravila) i pravni svet meta-metapravila (svet proceduralnih pravila). Prvim se uređuje sadržaj pravnog saobraćanja, a drugim utvrđuje poredak ispravnog odvijanja pravnih pravila i ljudskog ponašanja po njima.46 Kada bi samo ispravno sprovođenje procedure moglo pozitivnom pravu da pribavi svojstvo pravednosti, veoma brzo bi došlo do pravne anarhije. Šta više, svaki poredak bi mogao da se nazove pravednim zbog ispravne primene prava. To znači da bi legitimnim mogao da se smatra i pravni poredak u kome se pravo uvek ne primenjuje ispravno. Očigledno, ispravnost je nužan uslov za primenu i normalno ostvarivanje prava, ali nije osnov njegove pravednosti. 3. Pravičnost kao mesto susretanja istinitosti i ispravnosti Između pravde i procedure se nalazi pravičnost kao mesto susretanja i po- dudaranja pravde kao istinitosti i ispravnosti kao pravilnosti (pouzdanosti i korektnosti, tj. solidnosti). To posredno priznaju i pisci koji se zalažu za proce- duralnu pravdu, naročito oni koji pokušavaju da pronađu nekakav oslonac za proceduralnu pravdu u pravilima materijalnog prava. Zbog toga svesno brkaju materijalne sa proceduralnim normama. Ali, proceduralna pravda ne postoji dok pravda postoji, samo ona nije proceduralna, kao ni pravičnost, koja se može smatrati operativnim i primenjivačkim oblikom pravde.47 44 Vid. D. Mitrović, Idealistički i realistički pojam prava, Anali Pravnog fakulteta u Beo- gradu, god. LXI, br. 1/2013, str. 29−52. 45 Vid. M. Trajković, Pravo u svetu vrednosti, Zbornik radova Pravni fakulteta u Novom Sadu, god. 46, br. 1/2012, str. 383−398. 46 D. Mitrović, Put prava. Holistička paradigma sveta i prava u svetlu teorije haosa i pravne teorije, Beograd, 2000, str. 221, 228−229. 47 Da podsetimo, pravičnost (aequitas, iustus) jeste pravda u konkretnom slučaju koji ne može da se reši samo na osnovu pozitivnog prava. Prvo je smatrana vrlinom zakonske NBP • Journal of Criminalistics and Law [15] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST Da je pravičnost mesto susretanja i ukrštanja istinitosti i ispravnosti, po- kazuje veza prirodnog i pozitivnog prava koja omogućava da se pravila pri- rodnog prava prelivaju u pravila pozitivnog prava. Ta veza dozvoljava da se pravičnost odredi u prirodnopravnom i pozitivnopravnom smislu. Pravičnost „u prirodnopravnom smislu postoji kada zakon neposredno upućuje na pri- rodno pravo u slučajevima pravnih praznina (kada ne postoje pravne odredbe za pojedine slučajeve koje zakon nije predvideo ili sudija nije mogao da ih podvede pod neku opštu normu). S druge strane, pravičnost u pozitivnoprav- nom smislu raspolaže svojim zakonskim (materijalnim) i sudskim (formal- nim) oblikom. Zakonska pravičnost u pozitivnopravnom smislu omogućava da se pravna norma primeni tako što će biti uzete u obzir sve osobenosti nekog slučaja. Takve norme spadaju u pravično pravo (koje nalaže odustajanje od kažnjavanja za sitnu krađu, utaju, prevaru iz nevolje itd.), za razliku od strogog prava koje ne dopušta uzimanje u obzir takvih osobenosti. Sudska pravičnost u pozitivnopravnom smislu postoji kada se rešavanje zakonom obuhvaćenih konkretnih slučajeva vrši u duhu prava, tj. njegove ideje, materije, a ne pre- ma slovu zakona. Do toga obično dolazi kada zakonom nisu obuhvaćena sva obeležja konkretnog slučaja (slučaj pravne praznine). Tada sudska pravičnost omogućava sudiji da reši konkretan slučaj prema pravilu koje sam određu- je“.48 Proizilazi da pravo samo preko pravičnosti može da služi ostvarenju ideje pravde (Aristotel), a ne preko proceduralne pravde (Rols, Hefe i drugi). Slična misao susreće se u Radbruhovoj Filozofiji prava: pravo je stvarnost koja svoje značenje ima u činjenici da služi ideji pravde. Sporno je i mesto proceduralne pravde pored zakonske i sudske pravde. Kada bi zbilja postojala proceduralna pravda, zakonska i sudska pravda po- stale bi njene vrste. Ali, time obuhvat proceduralne pravde ne bi bio iscrpljen, jer bi ona trebalo da se odnosi i na sva proceduralna pravila koja donose drugi društveni subjekti. To pokazuje da je proceduralna pravda i u tom smislu ne- jasno zamišljena i određena, što nije slučaj sa proceduralnim pravilima koja moraju da budu što određenija i jasnija zbog njihove ispravne primene. pravde, da bi u XIX i XX veku postala sredstvo za ispravljanje preterane strogosti zakona, naročito kada treba da se spreči mehanička, nezakonita ili nepravedna primena pravila u konkretnim slučajevima. Tako se postupa i danas, kada se pravičnošću naziva ustavno ili običajno ovlašćenje sudija ili drugih službenih lica da elastično primenjuju pravne norme u konkretnim slučajevima radi uspešnijeg ostvarivanja prava. Zbog toga se pravičnost do- življava kao korektivna pravda, jedna vrsta poštenja koje ispravlja pravo a ukrašava prav- du. Viši oblik tog ukrašavanja predstavlja milosrđe, koje predsedava nad samom pravdom. 48 Nav. prema D. Mitrović, Teorija države i prava, str. 532−534. Dragan Mitrović [16] NBP • Žurnal za kriminalistiku i pravo Zaključak Tvrditi da postoji proceduralna pravda znači prikloniti se onom što je po- modno u pravnoj nauci. Pravnici pozitivisti u tome mogu da pronađu zado- voljenje, jer, eto, i pozitivno pravo je pravedno, makar samo u proceduralnom smislu. S druge strane, pravnici prirodnopravne orijentacije, preterujući sa proširivanjem pojma pravde, takođe čine rđavu uslugu sebi i pravnicima po- zitivistima. Počeli su da zagovaraju postojanje proceduralne pravde, da barem preko nje pozitivno pravo postane pravedno. Zanemarili su da proceduralna pravda ne postoji dok pravda postoji, kao i da pravda nije proceduralna, što nije ni pravičnost. Da proceduralna ne postoji, može se pokazati sledećim tvrdnjama: − pravda je sinonim za istinitost, a ne za ispravnost na kojoj pomenuti pisci grade pojam proceduralne pravde; − istinitost se odnosi na ono što jeste, što postoji, a ispravnost na pravilno i precizno izvođenje odgovarajućih postupaka; − istinitost i ispravnost se ne podudaraju, isto kao što se ne podudaraju pravda i pravo; nešto što je istinito ne mora da bude ispravno; i obrnuto, nešto što je ispravno ne mora da bude istinito; − veza istinitosti i ispravnosti pokazuje da je reč je odnosu cilja (istinitosti, pravde i pravičnosti) i sredstva (ispravnosti, korektnosti, preciznosti, pouzda- nosti itd., rečju solidnosti); − proceduralna pravda se često pogrešno izvodi iz materijalnih pravila o procedurama koja se zatim proglašavaju proceduralnim (npr., princip nepri- strasnosti ili princip poštenja nalažu da se proceduralna pravila ispravno i fer primenjuju: ona pripadaju materijalnom a ne proceduralnom pravu zbog toga što se njima određuje način sprovođenja čisto proceduralnih pravila); nije isto odnositi se na nešto i biti nešto; − istinitosti i ispravnost, tj. pravda i procedura, povremeno se podudaraju i tada se ispoljavaju u obliku pravičnosti. Kada bi se prihvatila tvrdnja da proceduralna pravda postoji, tada bi se i Hitlerovi rasistički Nirnberški zakoni mogli smatrati pravednim samo zato što su doneti na pravno ispravan način. Ili, u blažem slučaju, svako ispravno i po- šteno sprovođenje pravila procedure uopšte moglo bi da se smatra pravednim, dok bi neispravna primena istih proceduralnih pravila bila pravno prihvat- ljiva, samo se ona ne bi mogla nazvati pravednom u proceduralnom smislu. Očigledno, reč je o opasnom simulakrumu koji materiju prava zamenjuje nje- govom formom (procedurom), istinu ispravnošću, a pravdu proizvoljnošću. Istrajavanje na postojanju proceduralne pravde može se smatrati i zakasne- lim odgovorom pripadnika pozitivističke jurisprudencije, kao što je rečeno. Neobično je da se za postojanje proceduralne pravde zalažu i pisci koji izvorno NBP • Journal of Criminalistics and Law [17] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST pripadaju pravcu prirodnopravne jurisprudencije. Valjda i jedni i drugi imaju isti cilj, samo iz različitih razloga: da pozitivno pravo predstave kao praved- no. Ali, to više nije Rolsov i Hefeov konstrukt već simulakrum proceduralne pravde, koji rado prisvajaju pravnici pozitivisti, a podržavaju prirodnopravno orijentisani pravnici. I da zaključimo: proceduralna pravda ne postoji, ali se do pravde može doći ispravnim postupcima. I obrnuto, pravda postoji, ali ona nije proceduralna, što nije ni pravičnost. Procedura je jedino ispravno sredstvo prava, ali pravo nije jedino ispravno sredstvo pravde. Literatura 1. Aristotel; Nikomahova etika, Beograd, 1970. 2. Di Džordž, R. T; Poslovna etika, Beograd, 2003. 3. Dvorkin, R; Carstvo prava, Beograd, 2003. 4. Dworkin, R; Shvaćanje prava ozbiljno, Zagreb, 2003. 5. Filozofijski riječnik, Zagreb, 1965. 6. Glintić, T; Pogovor knjizi Dž. Rolsa Teorija pravde, Beograd – Podgorica, 1998. 7. Hefe, O; Pravda. Filozofski uvod, Novi Sad, 1998. 8. Holbah, P; Sistem prirode, Beograd, 1950. 9. Jeffris, H; Theory of Probability, Oxford 1948. 10. Jovanov, I; Pravda. Filozofski uvod, Zbornik Pravnog fakulteta u Novom Sadu, br. 2/2014. 11. Kant, I; Zasnivanje metafizike morala, Beograd, 2008. 12. Kelzen, H; Elementi teorije pravnih normi. Pozni izabrani spisi, Beograd – Podgorica, 2003. 13. Keynes, J. M; A Treatise of Probability, London, 1957. 14. Koler, P; O socijalnoj pravdi, Anali Pravnog fakulteta u Beogradu, br. 1/2005. 15. Mitrović, D; Teorija države i prava, Beograd, 2010. 16. Mitrović, D; Idealistički i realistički pojam prava, Anali Pravnom fakultetu u Beogradu, god. LXI, br. 1/2013. 17. Mitrović, D; Put prava. Holistička paradigma sveta i prava u svetlu teorije haosa i pravne teorije, Beograd, 2000. Dragan Mitrović [18] NBP • Žurnal za kriminalistiku i pravo 18. Mole, N; Harby C; Pravo na pravično suđenje. Vodič za primenu člana 6 Evropske konvencije o ljudskim pravima, Beograd, 2003. 19. Nozik, R; Anarhija, država, utopija, Zagreb, 2003. 20. Paskal, B; Misli, Beograd, 1988. 21. Poper, K; Traganje bez kraja. Intelektualna autobiografija, Beograd, 1991. 22. Radbruh, G; Filozofija prava, Beograd, 1980 (2016). 23. Ratković Njegovan, B; Pravda i poslovanje, Škola biznisa, Novi Sad, 2015. 24. Reichenbach, H; The Rise of Scientific Philosophy, Un. of California Press, Barkley, 1968. 25. Rols, Dž; Teorija pravde, Beograd – Podgorica, 1998. 26. Ros, A; Pravo i pravda, Beograd – Podgorica, 1996. 27. Ruso, Ž. Ž; Rasprava o porijeklu i osnovama nejednakosti među ljudima, Zagreb, 1978. 28. Sovilj, B. B; Put kroz pravo do pravde, Petrovaradin, 2004. 29. Trajković, M; Vrednosna usmerenost prava naspram pravnog pozitivizma, Anali Pravnog fakulteta u Beogradu, god. 62, br. 1/2014. 30. Trajković, M; Pravo u svetu vrednosti, Zbornik radova Pravni fakulteta u Novom Sadu, god. 46, br. 1/2012. 31. Trajković, M; Etička dimenzija prava – pravnoteorijski aspekt, Novi Sad, 2008. 32. Vitgenštajn, L; O izvesnosti, Novi Sad, 1988. 33. Volzer, M; Područje pravde, Beograd, 2000. 34. Vučković, Ž; Biznis i moral, 2006. 35. Živanović, T; Sistem sintetičke filozofije prava, III, Beograd, 1959. NBP • Journal of Criminalistics and Law [19] PROCEDURALNA PRAVDA, ISTINITOST I ISPRAVNOST PROCEDURAL JUSTICE, TRUTHFULNESS AND RIGHTNESS Dragan M. Mitrović University of Belgrade, Faculty of Law It must be difficult to believe in any authority as truth instead in truth as the only authority. Abstract: The aim of this work is not to support the idea of the ex- istence of procedural justice, advocated by the best known propo- nents of the existence of procedural justice (J. Rawls and O. Höffe, and then by L. Fuller, H. Hart, R. Dworkin, P. Koller, M. Van den Bos and others), but to consider procedural justice from the angle of truthfulness and rightness. Since it is not about the same but related concepts, it is rendered possible to conclude that truth- fulness and rightness are incongruent, in the same way as justice and the law are incongruent. Something that is truthful does not need to be righteous. And vice versa, something that is righteous does not need to be truthful. Obviously, it has to do with the rela- tionship between the goal (truthfulness, justice and fairness) and means (properness, correctness, preciseness, reliability, etc. in a word, solidity). The consideration of the relationship of truthfulness and right- ness in the example of the actually existing justice and the actual- ly non-existent procedural justice, gives rise to further important questions: the relationship of material (substantive) and formal (procedural) legal rules, fairness as the meeting place of justice, the law and procedure, etc. In a yet deeper shadow lies the ques- tion of the relationship between natural law and positive law. It can be concluded that procedural justice does not exist. But, justice exists, only it is not procedural, which neither is fairness. Procedure is the only righteous means of the law, but the law is not the only righteous means of justice. Keywords: justice, fairness, truthfulness, rightness, procedural law, procedural justice. 
work_4je7pa3aqrbwrgwuatif7nrni4	----	Restorative Justice and Procedural Justice: Dealing with Rule Breaking Journal of Social Issues, Vol. 62, No. 2, 2006, pp. 307--326 Restorative Justice and Procedural Justice: Dealing with Rule Breaking Tom R. Tyler∗ New York University This article identifies similarities among three approaches to dealing with rule breaking: the procedural justice model, the restorative justice model, and the study of moral development. Each argues that the long-term goal when dealing with rule breaking is to motivate rule breakers to become more self-regulating in their future conduct. This goal is undermined by punishment-focused models of sanctioning. Sanction-based models, which dominate current thinking about managing criminals, have negative consequences for the individual wrongdoer and for society. It is argued that greater focus needs to be placed on psychological approaches whose goal is to connect with and activate internal values within wrongdoers with the goal of encouraging self-regulatory law-related behavior in the future. In the last several decades, America could perhaps best be characterized as a highly “punitive” society (Roberts & Stalans, 2000; Tyler, Boeckmann, Smith, & Huo, 1997; Whitman, 2003). The focus of public attention has been on the need to punish rule-breakers and support has been high for harsh punishments for a wide variety of crimes, punishments including the death penalty and life in prison. The general tenor of recent times is captured by the case of support for the death penalty. During the 1960s, a majority of adult Americans favored ending the death penalty, while public opinion polls during the 1980s–1990s typically found that 80% or more of those interviewed favored the death penalty (Ellsworth & Gross, 1994). The focus of public discussion has been, in this and many other ways, on the view that the legal system is too lenient and that there need to be harsher ways to punish those who commit crimes. These punitive aspects of American culture are striking because they have become stronger during recent decades. A person looking at American society in ∗Correspondence concerning this article should be addressed to Tom R. Tyler, Department of Psychology, New York University, 6 Washington Place, Room 579, New York, NY 10003 [e-mail: tom.tyler@nyu.edu]. 307 C© 2006 The Society for the Psychological Study of Social Issues 308 Tyler the 1960s might have projected a future of declining punishment and increasing efforts at rehabilitation and reintegration for offenders (Garland, 2001). For exam- ple, during the 1960s the majority of adult Americans opposed the death penalty, the result of steady declines in support since the 1930s. That is, in fact, the di- rection taken by much of Europe (Whitman, 2003). However, the United States has not moved in that direction. Instead, it has become a more punitive society in which harsh punishment is central to reactions to rule breaking (Garland, 2001; Whitman, 2003). Central to this punitive society is a model in which the primary way of mo- tivating compliance with the law is via the application of sanctions. There have been several negative consequences of this sanction orientation. One is that it has led to a swelling of the prison population, with the result that America is now one of the leading countries in the world in terms of the proportion of its adult population held in jails and prisons (Haney & Zimbardo, 1998). This statistic itself does not capture the true impact of the large prison population. That impact has been disproportionately upon the poor and minorities whose communities have been decimated, as large numbers of young minority males have spent time in prisons. In addition, this punitive orientation toward the population has made more negative the relationship between the police, courts, and the residents of American communities (Tyler, 1997, 1998; Tyler & Huo, 2002). In an effort to lessen serious crime, for example, the New York city police have punished more severely minor crimes, such as drinking in public parks. Instead of receiving a minor penalty for such crimes, people have been brought into police stations, booked, and held in jail overnight. In recent years, this has led to punitive experiences, including being jailed overnight or for weekends, for a much larger proportion of the cities’ youth than in past years (Tyler & Huo, 2002), with resulting hostility toward the police. While not the only punitive policy enacted by police, this approach to social control typifies the use of force to secure compliance, and the public hostility that results. Many legal authorities acknowledge these negative consequences, but regard them as the inevitable byproducts of engaging in effective social regulation (Nagin, 1998). Other Approaches Procedural justice research suggests that there is another possible route to effective social regulation besides punitive punishment (Tyler, 1990; Tyler & Huo, 2002). This route involves treating people with procedural justice and respect. When people are so treated, they view law and legal authorities as more legitimate and entitled to be obeyed. As a result, people become self-regulating, taking on the personal responsibility for following social rules. This approach has been labeled a process-based model of regulation (Tyler, 2003, 2006). Restorative Justice and Procedural Justice 309 These procedural justice findings can be put within a larger framework of social engagement, in which we seek to understand how to constructively engage people in society and social institutions. Research suggests that the key to doing so is to create groups, organizations, and societies within which people experi- ence procedural justice (Tyler, 1990; Tyler & Blader, 2000; Tyler & Huo, 2002). Two types of procedural justice are key: justice in the quality of decision-making procedures and justice in the quality of treatment that people receive from others. When people experience these forms of justice, they are found to accept social rules, and voluntarily engage in self-regulatory behavior (Tyler & Blader, 2000; Tyler & Huo, 2002). The importance of procedural justice research is that its findings point to the potential viability of models of regulation that rely upon self-regulatory motiva- tions. Research suggests that people will obey laws, without the threat of sanctions, when they experience the criminal justice system and its authorities as acting justly. Hence, there are viable models of proactive social regulation that do not generate the negative consequences associated with punitive, sanctioning, approaches to rule breaking. The goal of this review is to point to common elements shared by this proce- dural justice approach, the restorative justice movement, and a focus on morality and moral development. These approaches are united by their common goal: to encourage the development or activation of people’s internal values so that they will become more motivated to engage in self-regulatory behavior. It is suggested that a civil society is most effective when its members buy into commonly held values and follow rules because they are motivated to do so, rather than because they are motivated by incentives or sanctions. Shaping People’s Behavior The roots of these approaches lie in an analysis of the nature of human motiva- tion. Kurt Lewin (Gold, 1999) distinguished between two core elements in human motivation. One source of motivation is the basic desire to maximize gain and min- imize loss in interactions with others. These are “instrumental” or “self-interested” motivations. The underlying assumption of Lewin’s model of motivation is that shaping the external environment by providing incentives or threatening sanctions is one way to shape people’s behaviors. This model of motivation is frequently referred to as the deterrence or social control model (Nagin, 1998), and it has dominated American thinking about how to control crime during the last several decades. Such models focus on the ability of legal authorities and institutions to shape people’s behavior by threatening to deliver or by actually delivering negative sanc- tions for rule breaking. To implement such deterrence strategies, police officers carry guns and clubs, and can threaten citizens with physical injury, incapacitation, 310 Tyler or financial penalties. Their goal is to establish their authority and “The uniform, badge, truncheon, and arms all may play a role in asserting authority” in the effort to “gain control of the situation (Reiss, 1971, p. 46).” The police seek to control the individual’s behavior “by manipulating an individual’s calculus regarding whether “crime pays” in the particular instance (Meares, 2000, p. 396).” Judges similarly shape people’s acceptance of their decisions by threatening fines or even jail time for failure to comply. Research suggests that the ability to threaten and/or deliver sanctions is often effective in shaping people’s law-related behavior (Nagin, 1998). In particular, a number of studies on deterrence suggest that people are less likely to engage in illegal behaviors when they think that they might be caught and punished for wrongdoing (Nagin & Paternoster, 1991; Paternoster, 1987, 1989; Paternoster & Iovanni, 1986; Paternoster, Saltzman, Waldo, & Chiricos, 1983; Tyler, 1990). This core premise of deterrence models is supported by many, but not all, studies examining the factors that shape people’s law-related behavior (Nagin, 1998; Tyler, 1990). Studies of deterrence also point to several factors that limit the likely effec- tiveness of deterrence models of social regulation. Perhaps the key factor limiting the value of deterrence strategies is the consistent finding that deterrence effects, when they are found, are small in magnitude. For example, in a review of studies of deterrence in the area of drug use, MacCoun (1993) finds that around 5% of the variance in drug use behavior can be explained by variations in the expected likelihood and/or severity of punishment. This suggests that much of the variance in law-related behavior flows from other factors besides risk estimates. Some of the difficulties associated with deterrence approaches are the result of the fact, established by deterrence research (see Nagin, 1998), that it is the perception of the certainty of punishment, rather than its severity, that most strongly shapes behavior. One consequence of this is that deterrence approaches are costly, because certainty of punishment is shaped by the deployment of police resources. Political leaders are attracted to severe punishments, such as the death penalty, in part because it is not expensive to implement such policies. Unfortunately, from a cost perspective, these severe punishments are not especially effective deterrents of crime (see Ellsworth & Gross, 1994). Given the realities of democratic societies, in which policing and surveillance are low, the probability of being detected when breaking many laws is low (Tyler, 1990). This makes deterrence based upon the probability of being detected for wrongdoing a poor strategy under many circumstances. To have a more effective strategy for dealing with the issue of public compli- ance, we would benefit from being in a situation in which people have additional reasons for obeying the law beyond their fear of being caught and punished for wrongdoing (Sherman, 1993, 1998, 1999; Tyler, 1990). It is to such additional mo- tivations that procedural justice approaches are directed. This need for additional Restorative Justice and Procedural Justice 311 motivations has also been recognized in recent discussions of deterrence theory, which include extralegal factors such as morality and informal social control (see Foglia, 1997; Grasmic & Bursik, 1990; Nagin & Pogarsky, 2001). Internal Motivations Lewin contrasts the influence of external contingencies to the influence of internal motivations (Gold, 1999). There are many types of internal motivations. One set is linked to things that people want to do—i.e., to their attitudes. For example, people are intrinsically motivated to engage in actions that they enjoy. Further, people are motivated to act on behalf of groups and people to whom they feel committed. The second set of internal motivations is linked to feelings of social obligation. These motivations reflect people’s willingness to act based on feelings of social values that reflect feelings of social responsibility. Two such values are important: legitimacy and morality (Tyler & Blader, 2005). Legitimacy from this social value perspective is the property that a rule or an authority has when others feel obligated to voluntarily defer to that rule or authority (Tyler, 1990, 2006). In other words, a legitimate authority is an authority regarded by people as entitled to have their decisions and rules accepted and followed by others (French & Raven, 1959). The roots of the modern discussion of legitimacy are usually traced by the important writings of Weber on authority and the social dynamics of authority (Weber, 1968). Weber argues that the ability to issue commands that will be obeyed does not rest solely upon the possession and ability to use power. In addition, there are rules that people will voluntary obey, and authorities whose directives will be voluntarily followed. Legitimacy, therefore, is a quality possessed by an authority, a law, or an institution that leads others to feel obligated to obey its decisions and directives. It is “a quality attributed to a regime by a population (Merelman, 1966, p. 548).” This feeling of responsibility reflects a willingness to suspend personal con- siderations of self-interest and to ignore personal moral values because a person thinks that an authority or a rule is entitled to determine appropriate behavior within a given situation or situations. Kelman and Hamilton (1989) refer to legitimacy as “authorization” to reflect the idea that a person authorizes an authority to determine appropriate behavior within some situation, and then feels obligated to follow the directives or rules that authority establishes. As they indicate, the authorization of actions by authorities “seem[s] to carry automatic justification for them. Behaviorally, authorization obviates the necessity of making judgments or choices. Not only do normal moral principles become inoperative, but—particularly when the actions are explicitly ordered—a different type of morality, linked to the duty to obey superior orders, tends to take over (Kelman & Hamilton, 1989, p. 16).” 312 Tyler One way to think about legitimacy is as a property of an institution or group of authorities. For example, studies of confidence in government ask people to rate the overall government, and its institutions and authorities. Studies of the legitimacy of legal authorities similarly ask people to evaluate their general feelings of responsibility and obligation to obey the law and legal authorities (see Tyler, 1990). Does the social value of legitimacy matter? Tyler (1990) examined this issue in a study of the law-related behavior and found that legitimacy shaped everyday compliance with the law, a conclusion supported by more recent studies (Sunshine & Tyler, 2003a). Further, legitimacy had more influence on compliance than did sanction risks. Hence, evidence suggests that internal values, at least the internal value of legitimacy, shape law-related behavior (Tyler, 1990; Tyler & Huo, 2002). So, our ability to shape such behavior would improve if we could understand how to activate these motivations. One way to encourage people to view law as legitimate is for legal authori- ties to act in procedurally just ways. For example, studies suggest that procedural justice during personal experiences with authorities is important because it builds the social value of legitimacy (Tyler, 2004). Legitimacy, once activated, then en- courages everyday compliance with the law. Hence, legal authorities receive more citizen cooperation when people generally view them as legitimate. People, who have more supportive social values, are easier for legal authorities to deal with during personal encounters. Beyond particular experiences, people are generally more likely to regard the police as legitimate if they believe that the police exercise their authority through fair procedures (Sunshine & Tyler, 2003a; Tyler, 2001). As people develop sup- portive social values such as legitimacy, they are more willing to defer to particular legal authorities (Tyler & Huo, 2002), and also generally more compliant with the law (Sunshine & Tyler, 2003a; Tyler, 1990). These general procedural justice judg- ments are more central to legitimacy than are evaluations of the effectiveness of the police in combating crime. The discussion of legitimacy makes clear that people’s internal values have an important role in shaping their behavior. Hence, the legal system gains when those values are engaged and support self-regulatory or internal motivations toward complying with the law and with the directives of legal authorities. To encourage such a value-based reaction to authorities, it is important for the police and courts to act in ways that people view as reflecting procedural justice. This focus on the importance of legitimacy reflects the legacy of Weber (1968), who was concerned with the circumstances under which people follow the direc- tives of social rules and social authorities. Legitimacy is important to the success of such authorities because they are enabled to gain public deference to a range of decisions by virtue of their social role. This deference is not unlimited, because legitimacy may exist within a certain sphere, but within that sphere, acceptance of Restorative Justice and Procedural Justice 313 the right of authorities to make decisions that ought to be accepted and obeyed is broad. Experiencing procedural justice, either in particular personal experience or in the everyday functioning of the law, is important because it encourages feelings of responsibility and obligation to follow the law—i.e., it increases the legitimacy of the law and the legal system. Hence, procedural justice suggests that possibility of a legal system based more heavily upon voluntary cooperation—of process- based regulation (Tyler & Huo, 2002; Tyler & Sunshine, 2003a). The Morality of the Law Legitimacy is not the only social value upon which the legal system might potentially be based. A second social value is personal morality—the motivation to behave in accord with one’s sense of what is appropriate and right to do in a given situation. For example, people may think that using drugs is morally right or wrong, irrespective of whether drug use is illegal. These feelings about the morality of particular behaviors also shape people’s behavior, with people being less motivated to act in ways that they think are immoral irrespective of whether those behaviors are or are not legal (Tyler, 1990). And, like the social value of legitimacy, morality is internal and shapes actions distinct from consideration of being caught and punished for wrongdoing (Tyler, 1990). What unites the study of legitimacy and morality? In both cases, the key is that people accept as their own feelings of responsibility and obligation for their actions in society. The influence of moral values is based on the internalization of feelings of responsibility to follow principles of personal morality (see Robinson & Darley, 1995; Tyler & Darley, 2000). A core element of moral values is that people feel a personal responsibility to follow those values, and feel guilty when they fail to do so. Hence, moral values, once they exist are self-regulatory in character, and those who have such values are personally motivated to bring their conduct into line with their moral standards. The importance of morality is central to the work of the psychologist Freud and the sociologist Durkheim (Tyler & Sunshine, 2003b). As Hoffman notes: “The legacy of both Sigmund Freud and Emile Durkheim is the agreement among so- cial scientists that most people do not go through life viewing society’s moral norms as external, coercively imposed pressures to which they must submit. Though the norms are initially external to the individual and often in conflict with [a person’s] desires, the norms eventually become part of [a person’s] inter- nal motive system and guide [a person’s] behavior even in the absence of external authority. Control by others is thus replaced by self-control [through a process labeled internalization] (Hoffman, 1977, p. 85).” Here the self-control of con- cern is reflected in the influence of one’s own internal moral values on one’s behavior. 314 Tyler As with Weber, the key issue addressed by Durkheim and Freud is the personal taking on of internal values that become self-regulating, so that people acknowl- edge and act on internal values that lead to deference to society, social rules, and authorities. However, in this case the values taken on are personal moral values—a responsibility to act in accord with ethical judgments about what is right and what is wrong. Although personal moral values may reflect the values of institutions and authorities with whom one deals, particularly during moral socialization during childhood, those values become internalized and viewed as one’s own personal values. After that time, they are followed for internal reasons, like the value of legitimacy. The distinction between legitimacy and morality is that, in the case of morality, legal authorities gain support for particular laws or decisions when those laws or decisions are in accord with people’s personal morality. Hence, the motivation to behave in ways that are moral does not lead to support the rule of law when the public thinks that the law is inconsistent with their morality. To activate the motivation force of morality, legal authorities must be pursuing policies that are consistent with people’s moral values (Sunshine & Tyler, 2003b). Of course, morality and legitimacy can be in conflict. A conflict between legitimacy and morality can occur with mundane and everyday practices, as when the government seems to criminalize drug use or certain sexual practices without the support of public morality (Darley, Tyler, & Bilz, 2003), or it can involve dramatic and high-stakes conflicts, as when the government seeks to compel people to serve in wars they think are unjust, or to pay taxes to support policies they view as immoral. Unlike legitimacy, morality is not linked to the role of the authority, and its independent roots in personal ethical values mean that, while morality usually supports following laws (Tyler, 1990), the two internal forces do not always support one another. The procedural justice approach seeks to activate morality through the fair exercise of authority. When people view the authorities as engaging in practices that the public views as being morally appropriate, that heightens their sense that legal authorities are behaving morally (Tyler & Blader, 2005). In other words, one important set of moral values is concerned with how the police should exercise their authority, so the procedures by which the police act communicate to members of the public whether the police share their moral values (Sunshine & Tyler, 2003b). For example, when the police engage in racial profiling, which people view as an unfair procedure, they diminish their moral authority by showing that they do not share the public’s moral values about how the police should act (Tyler & Wakslak, 2004). Legal authorities, in other words, can demonstrate that they share public morality by acting in ways that are consistent with public views about how to fairly exercise authority—e.g., by using fair procedures to make decisions. The activation of morality also occurs in two other ways that are not re- lated to procedural justice. First, by seeking to heighten the role of morality in Restorative Justice and Procedural Justice 315 shaping people’s behavior. The psychological literature on moral development, for example, focuses on strategies for internalizing moral values in children, whose adult behavior is then shaped by their moral judgments (Eisenberg, Reykowski, & Staub, 1989; Kurtines & Gewirtz, 1984; Lickona, 1976; Rest, 1986). The lit- erature on moral development suggests that most children develop moral values, but that development is not inevitable and it is possible for adults not to develop moral values during childhood. Hence, the degree to which a child develops moral values, which shape their adult behavior, has implications for the functioning of the law. The law can also enlist people’s moral values as a motivational force support- ing deference to the law by pursuing ends that people view as moral. For example, Robinson and Darley (1995) point to discrepancies—real and imagined—between the law and people’s moral values. They argue that the law is less likely to be able to call upon people’s moral motivations to support the legal system when its values are viewed as discrepant from those of the public. Hence, the law can engage moral values when and if the law is consistent with the moral values held by the public (Tyler, 2005). Procedural Justice and Restorative Justice The procedural justice approach shares a core similarity with the restorative justice approach. The restorative justice approach argues that the goal when deal- ing with people who may have broken social rules should be to seek ways to heighten the future motivations that those people have to engage psychologically and behaviorally in society. This engagement includes developing or becoming more committed to social values that promote self-regulation, and consequently adhering more closely to laws and social regulations in the future. In other words, both approaches view one important goal when dealing with people as being to create better community members. Restorative justice argues that the social goal that should dominate reactions to transgressions is to resolve the dispute via reintegrative shaming (Braithwaite, 2002). Reintegrative shaming combines strong disapproval of bad conduct with respect for the person who committed those bad acts. The goal is restoring victims, offenders, and the community. In the case of offenders, the goal is to encourage feelings of shame regarding one’s bad acts, accepting responsibility, and sincerely apologizing. This restores the dignity of offenders. Key to this process is the social connection that people feel to their family, friends, and community. These parties are present at restorative justice hearings, along with the victim and their family and friends. All of those present are involved in reconnecting the offender to their sense of responsibility to their community. The goal of this reconnection is to encourage feelings of responsibility to family, friends, and community that will enhance commitment to self-regulatory actions. This commitment, in turn, works against future transgressions of the law. 316 Tyler This restorative justice argument mirrors the concern in procedural justice research with developing informal and formal legal procedures that have the effect of strengthening the influence of social values on people’s law-related behavior. This can occur because people become more connected to their feelings of re- sponsibility to others in their community, because they become more motivated to follow their moral principles, or because they feel greater obligation to defer to societal authorities and institutions. All of these internal motivations facilitate future law abidingness. The influence of morality and legitimacy on law-related behavior has already been noted (Tyler, 1990). This influence supports the argument that procedural justice influences law-abiding behavior. Evidence also supports the facilitative role of restorative justice conferences (Sherman, 1999). Studies suggest that, at least with some types of crimes, experiencing a restorative justice conference leads to greater deference to law in the future (Nugent, Williams, & Umbreit, 2003; Paulson, 2003). This suggests that such conferences build internal motivation to accept the law and the decisions of legal authorities. The Mechanisms Involved While each of the three approaches outlined seeks to active people’s internal motivations, there are important differences in the focus of these three bodies of research. The procedural justice approach seeks to activate feelings of respon- sibility and obligation to authorities. Research makes clear that people feel that authorities are entitled to be obeyed when they exercise their authority using fair procedures (Tyler, 1990). Further, the use of fair procedures leads people to feel that the authorities share their moral values (Sunshine & Tyler, 2003b). In both cases, the key psychological mechanism is the activation of internal social values, which then motivate self-regulatory behavior. The moral value literature focuses on the development of strong moral values during the childhood socialization process. Those values then guide adult actions, leading people to be motivated to engage in actions that are consistent with their moral values. When they fail to do so, they feel the emotion of guilt. Guilt arises when one has engaged in actions inconsistent with one’s self-image (Tangney & Dearing, 2002). Finally, the restorative justice approach focuses on engaging people’s feelings of responsibility to their family and community. It argues that when people feel that they have damaged their image in the eyes of others, this has destructive consequences for themselves. People feel the damaging emotion of shame (Ahmed, Harris, Braithwaite, & Braithwaite, 2001; Scheff, 1997). By seeking to separate out and repair the damaged self while condemning the destructive action, the restorative conference has the goal of building positive connections to one’s family, friends, and community. Those social bonds then sustain ongoing motivations to Restorative Justice and Procedural Justice 317 engage in socially appropriate behaviors that earn the approval of others (Tangrey & Dearing, 2002). Hence, each of these models views an important goal as being to find ways to encourage desirable social behavior in the long term by activating people’s internal self-regulatory motivations. Irrespective of whether the relevant motivations are obligation to authorities, responsibility for following moral values, or social bonds with others, each provides the basis upon which a self-regulatory society can be developed. Of course, obligation, shame, and guilt are not identical psychological moti- vations, and one question is whether one approach is more efficacious than others. Empirical research has not compared these various models, either to see if one is more influential than others or to explore whether they are separate psychologi- cal dynamics. The psychological mechanisms underlying the models underlined are generally unexamined in the literature. It is clearer that these approaches are effective than it is why they are effective. Changing the Culture of Social Control Irrespective of which of these models is the focus of concern, the general message is the same. The current focus on punishment as a mechanism through which to shape the behavior of both wrongdoers and people in general has had negative effects on society, particularly American society. It has led to a dramatic growth in the American prison population, and soured the relationship between the law, legal authorities, and members of society. It has had a particularly negative impact on the minority community. The goal of the procedural justice model, like the restorative model, is to articulate a different approach to managing issues of social order and social control. Both models, like the moral socialization model, argue that most people have social values and social bonds that motivate them to follow most rules most of the time. It is this motivational force that generally sustains societies, freeing legal authorities to focus on managing that small subset of people who lack such values and ties (Ayres & Braithwaite, 1992). The procedural justice model focuses on everyday rule following. It suggests that the key to motivating compliance based on internal social values is to maintain the legitimacy of the law and of legal authorities. To do so, legal authorities need to focus on exercising legal authority fairly. That procedural fairness encourages people to feel that the law is legitimate and ought to be obeyed. As a consequence, people become self-regulatory, and follow the law as a consequence of their own internal values (Tyler, 2005, 2006; Tyler & Blader, 2005). In addition, the procedural justice model has implications for people’s personal experiences with law. When people come before the law, for example, because they have broken some law and appear in court or deal with a police officer, there are 318 Tyler several goals that are important. One is to deal with appropriate punishment or restitution. The other, emphasized by the procedural justice model, is to encourage feelings of legitimacy among those dealing with the legal system. In other words, each encounter that people have with authorities is an instance of civic education, which teaches people about the law. Evidence suggests that even when people are being sanctioned by the law, they are also being educated about the nature of the law and legal authorities (Tyler & Huo, 2002). One of the most striking examples of the procedural justice approach is pro- vided by Paternoster, Brame, Bachman, and Sherman (1997). This study examines the long-term consequences of people’s experiences with the police when the po- lice are called to deal with domestic violence complaints. In such situations, the police direct their actions toward the offender—typically the man in the situation. But, what actions matter in the long term? The findings of this study suggest that if the police treat the offender fairly, that person is likely to refrain from further abuse in the future. In other words, the police can motivate people to self-regulate in the future by treating them with fairness when they deal with them. This study illustrates the paradigm underlying the procedural justice approach. It suggests the possibility of process-based regulation. By using fair processes, the police encourage the activation of the social values that sustain law-abiding behav- ior over time. In addition, as Tyler and Huo (2002) demonstrate, fair procedures encourage immediate deference, lessen the likelihood of spirals of conflict, and increase the legitimacy of the police and courts. Hence, fair procedures have both immediate and long-term positive consequences. One concern about the range of the procedural justice approach is whether or not it applies to the poor, the disenfranchised, and those who are less likely to buy into societies’ values. Tyler and Huo (2002) address this question directly by comparing the reactions of white and minority members of the public to their personal experiences with the police and courts. They find that the procedural justice model is an equally strong predictor of reactions within both groups. In fact, although there are large race-based differences in reactions to the police and courts, those differences disappear when procedural justice variables are included in the model. Further, Tyler and Huo (2002) look specifically at the group of respondents typically considered most problematic by law enforcement—young, minority, males—and find that the members of this group are also strongly moti- vated by procedural justice judgments. Like the procedural justice model, the restorative justice model also deals with legal procedures that are initiated when someone breaks a legal rule. And the goal of restorative procedures is also to further people’s loyalty to and adherence with legal rules in the future. In the case of restorative justice, the restorative justice conference seeks to motivate such immediate and future behavior by separating the “good” person from their “bad” conduct. The conferences then seek to both deal with the consequences of the bad conduct and, separately, to connect the good Restorative Justice and Procedural Justice 319 person to their motivation to behave in ways that win respect from their family, friends, and community. It is this connection with one’s favorable self-image that motivates compliance in the future. Hence, both of these models argue for the possibility of a society that focuses on punishing wrongdoing, but upon creating and maintaining people who are motivated by their own internal values and social bonds to self-regulate. As Tyler and Huo (2002) argue, the success of such efforts builds momentum over time. They demonstrate that those people who view the law as legitimate respond to that view by evaluating their personal experiences with the police and courts in more process-oriented ways. Hence, the existence of legitimacy makes it easier for policing to occur based upon the use of fair procedures. This, in turn, further enhances the possibility of creating legitimacy. Many of the ideas outlined here are not only implications of a procedural justice or restorative justice approach to policing. They are also part of the com- munity policing and problem-oriented policing approaches to policing. Those ap- proaches emphasize police efforts to move beyond reacting to already committed crimes to making efforts to proactively work with communities to solve community problems. Studies suggest that people value having the police talk to citizens and coop- erate with citizens to solve community problems (Sunshine & Tyler, 2003a). They support more bike and pedestrian patrols because they “like to perceive the police as friends and helpers and they would support endeavors to improve the work of the police force much in the sense of what community and problem-oriented policing propose (Weitekamp, Kerner, & Meier, 1996, p. 16).” Similarly a study of public complaints about the police similarly showed that the two primary reasons for complaining were “rude, arrogant, unfriendly, over-casual treatment (38%)” and “unreasonable, unfair behavior (46%)” (see Skogan, 1994). These findings suggest that people would like to improve the relationship be- tween citizens and the police, a core concern of problem-oriented and community policing. In fact, Weitekamp et al. (1996) propose a restorative problem-solving police prevention program that views reconciliation between victims, the commu- nity as a whole, and perpetrators as a key goal. They argue that four groups—the police, the community, the offender, and the victim—should be involved in ef- forts to reconcile following wrongdoing. All of these groups should be jointly concerned to make their community safer, reduce fear, prevent future crime, im- prove the quality of life, and increase interpersonal harmony among the people in communities. The comparison of these approaches makes clear that there are several con- ceptual issues underlying the distinctions among restorative, problem-oriented, and community policing. One issue is what the appropriate responsibilities of the police should be. Traditionally the police are responsible for enforcing the law by regulating public behavior and apprehending those who break laws. Those people 320 Tyler are evaluated and potentially punished by the courts. Recently there have been ar- guments for an expanded police role in helping to solve community problems, and help communities to solidify themselves as communities. These arguments stem in part from the recognition that the police cannot effectively control crime with- out community assistance (Sampson & Bartusch, 1998; Sampson, Raudenbush, & Earls, 1997), and in part from the suggestion that at least some members of the public would like for the police to have a broader role in the community than just rule enforcement and crime control. A second issue is who should deal with rule breaking. Within modern societies, the state has the central authority for deciding how to react to rule breaking, with the police and courts deciding who to arrest, how to determine wrongdoing, and how to punish for wrongdoing. This has led to a variety of types of discontent. The victims of crime feel excluded from the determination of punishment, and would like to have a greater role in deciding how to deal with criminals. Communities would also like a greater role in part, because they feel that the punishments of the formal legal system depart from the communities’ feelings about what is right and what is wrong (Robinson & Darley, 1995). These groups have argued for greater opportunities to participate in determinations of how to deal with crime and criminals. Finally, there is the question of how crime should be dealt with. The current legal system emphasizes determinations of guilt and the application of punishment. However, approaches such as the restorative justice model argue for the value of seeking to rehabilitate offenders—emphasizing the encouragement of future law-abiding behavior as the goal over punishment for past wrongs. This goal leads to efforts to work with the families and communities affected by the crime to encourage the criminal to come into compliance with community norms and values. Restorative justice itself is a model for the goal that should shape reactions to wrongdoing. It does not speak to the issue of who—the community, the police, the courts—should have the authority to manage responses to deviant behavior. In a series of experiments conducted in Australia, for example, the police managed restorative justice sessions (Braithwaite, 1989, 2002). However, in many of the traditional dispute resolution approaches from which restorative justice draws its inspiration, the community and community leaders were the key authorities. The restorative justice approach is a model for how to react to wrongdoing, rather than a model of policing, but it can be applied to policing if the police adopt a restorative justice approach to their dealings with wrongdoers. Procedural justice does not focus on shame. It focuses on obligation and re- sponsibility. However, both shame and obligation are internal motivations for self- regulatory behavior. In fact, we can combine these with a third motivation noted earlier in the discussion—morality—to identify three self-regulatory motivations. These are shown in Table 1. While all three are united in their goal of activating people’s internal values, they focus on different issues. Procedural justice focuses Restorative Justice and Procedural Justice 321 Table 1. Self-regulatory Motivations. Model Focus Motivation that is activated Procedural justice models Legitimacy Obligation of authority Restorative justice models Relationships to Shame others Moral development models Principles of Guilt right and wrong on feelings of obligation and responsibility to authorities. Restorative justice is concerned with people’s relationships to others and the shame that occurs when people disappoint others. Moral values lead to guilt when a person violates their own personal standards of right and wrong. In contrast, sanction-based approaches undermine and lessen the influence of people’s values on their behavior. Social psychologists make clear that one consequence of focusing on incentives and sanctions within a given situation is that people’s behavior becomes more strongly linked to those instrumental factors. If people have internal motivations, such as social values, the role of those values in shaping the behavior is “crowded out,” and becomes less important (Deci, 1975; Frey, 1994). In the long run, the use of sanction-based approaches has the consequence of undermining the influence of social values on behavior. The use of sanctions today means that greater and more frequent sanction use will be required in the future. Can These Models Be Implemented? As noted at the beginning of this discussion, there is evidence that these models can be effective. But, can they be implemented? One problem that might lie in the way are public views about how to respond to wrongdoing. These views are linked to public judgments about whether people can be changed and, if so, how best to achieve change. In the 1960s, there was a strong belief that people could be rehabilitated (Tyler et al., 1997). However, the greater punitiveness already noted might suggest that this belief has changed among Americans. Tyler and Boeckmann (1997) found that people in a sample of Californi- ans indicated that they did not feel that people could be changed when they felt that wrongdoers lacked core moral and social values and social bonds that could be appealed to and activated among wrongdoers. The feeling that there were no 322 Tyler Table 2. What Policies Are Effective in Lowering Crime? Yes (%) Will this policy Be Effective in Lowering Crime Putting criminals in prison for life after three felonies. 55 Using the death penalty more often? 44 Publishing names of criminals in their communities so that their neighbors and friends are aware of their crimes? 70 Requiring people to apologize? 51 Using schools to encourage the development of values such as respect and responsibility to follow rules? 85 Is it difficult to rehabilitate burglars who commit property crimes? 76 Is it difficult to rehabilitate violent offenders? 95 common core values or social bonds shared by wrongdoers and others in the com- munity, when found, was linked to the view that American society has become culturally diverse. This belief was also linked to support for the punitive “three strikes” law, which is a clear alternative view to the idea of rehabilitation and restoration. Hence, one aspect of the challenge posed by restorative justice is to educate the public to the feasibility of these approaches to managing wrongdoing. How serious was this potential problem? To address this question, we can look at the results of interviews of Californians conducted by Tyler and Boeckmann (1997). Those interviews were conducted in the wake of the passage of the “three strikes” initiative, a punitive measure mandating life in prison for three felony convictions. Do the views of those in this sample support the argument that people do not believe in the possibility of rehabilitation? Interestingly no. People were asked that question, as well as several related other questions on what works. Their answers are shown in Table 2. They indicate that people generally think that shaming and moral education are the most effective ways to control crime. It is striking that people, while they may support punitive measures, do not view them as particularly effective. Hence, if they felt that the conditions were such that rehabilitation and moral education were possible, people would support those approaches as being more effective. The question that we might best ask is why people do or do not think that these different approaches are effective. Table 3 looks at the role of whether people think that there is a sense of obligation to obey the law, trust in legal authorities, moral values, and social bonds on whether they think that different approaches to dealing with crime are effective. The results suggest that people think rehabilitation will work if people have shared moral values and if they think that people trust legal authorities. They think that shaming works when there are shared social bonds, shared moral values, and feelings of obligation to obey the law. They believe that moral education works when people have shared moral values. And they think that punishment is more effective when people share moral values and social bonds, and feel an obligation to obey the law. Restorative Justice and Procedural Justice 323 Table 3. What Shapes Whether Punishment Works? Is Moral Is Punishment Is Shaming Is Rehabilitation Education Effective? Effective? Effective? Effective? Do moral values exist in the community? .39∗∗∗ .18∗ .26∗∗∗ .24∗∗∗ Do social bonds exist in the community? .20∗∗ .15∗ .08 .09 Are legal authorities trusted? .05 .01 .21∗∗∗ −.04 Do people feel obligated to obey the law? .15∧ .17∗ .05 .00 Adj. R2 21%∗∗∗ 10%∗∗∗ 13%∗∗∗ 4%∗∗∗ ∧p < .10; ∗p < .05; ∗∗p < .01; ∗∗∗p < .001. These findings reinforce the idea that people are punitive not because they feel it is an optimal strategy. Rather, they think that the strategies outlined by the procedural justice and restorative justice models are more likely to be effective in reducing the problem of crime. That effectiveness, however, depends on the exis- tence of shared moral values, shared social ties, and feelings of trust, confidence, and obligation toward law. Hence, one strategy is to communicate the findings outlined above, studies showing that procedural and restorative approaches do work. Summary The challenge for the future is to reverse an alarming trend in societies’ ap- proaches to wrongdoing. That trend is to be increasingly punitive and preoccupied with punishment for wrongdoing. This trend is especially troubling because in earlier eras the focus of much of the effort when dealing with wrongdoing was upon the rehabilitation of offenders. The procedural justice and restorative justice approaches share the underlying belief that people can be rehabilitated and that society and the legal system have a great deal to gain from focusing on the possi- bilities of rehabilitation and the restoration of people as law-abiding members of society. Further, both models have provided compelling empirical evidence in sup- port of their arguments. These findings aside, it is clear that efforts to change the current paradigm for dealing with wrongdoing must involve substantial changes in public views about both society and human motivation. References Ahmed, E., Harris, N., Braithwaite, J., & Braithwaite, V. (2001). Shame management through reinte- gration. Cambridge, UK: Cambridge University Press. Ayres, I., & Braithwaite, J. (1992). Responsive regulation: Transcending the deregulation debate. Oxford, UK: Oxford University Press. Braithwaite, J. (1989). Crime, shame, and reintegration. Cambridge, UK: Cambridge University Press. 324 Tyler Braithwaite, J. (2002). Restorative justice and responsive regulation. Oxford, UK: Oxford University Press. Darley, J., Tyler, T. R., & Bilz, K. (2003). Enacting justice: The interplay of individual and institutional perspectives. In M. A. Hogg & J. Cooper (Eds.), Handbook of social psychology. London: Sage. Deci, E. L. (1975). Intrinsic motivation. New York: Plenum. Eisenberg, N., Reykowski, J., & Staub, E. (1989). Social and moral values. Hillsdale, NJ: Erlbaum. Ellsworth, P. C., & Gross, S. R. (1994). Hardening of the attitudes: Americans’ views on the death penalty. Journal of Social Issues, 50, 19–52. Foglia, W. C. (1997). Perceptual deterrence and the mediating effect of internalized norms among inner-city teenagers. Journal of Research in Crime and Delinquency, 34, 414–443. French, J. R. P., & Raven, B. (1959). The bases of social power. In D. Cartwright (Ed.), Studies in social power. Ann Arbor: University of Michigan Press. Frey, B. S. (1994). How intrinsic motivation is crowded in and out. Rationality and Society, 6, 334–352. Garland, D. (2001). The culture of control: Crime and social order in contemporary society. Chicago: University of Chicago Press. Gold, M. (1999). The complete social scientist: A Kurt Lewin reader. Washington, DC: American Psychological Association. Grasmick, H. G., & Bursik, R. J. (1990). Conscience, significant others, and rational choice. Law and Society Review, 24, 837–861. Haney, C., & Zimbardo, P. (1998). The past and future of U.S. prison policy: Twenty-five years after the Stanford Prison Experiment. American Psychologist, 53, 709–727. Hoffman, M. L. (1977). Moral internalization: Current theory and research. Advances in Experimental Social Psychology, 10, 85–133. Kelman, H. C., & Hamilton, V. L. (1989). Crimes of obedience. New Haven, CT: Yale. Kurtines, W. M., & Gewirtz, J. L. (1984). Morality, moral behavior, and moral development. New York: Wiley. Lickona, T. (1976). Moral development and behavior. New York: Holt, Rinehart, Winston. MacCoun, R. J. (1993). Drugs and the law: A psychological analysis of drug prohibition. Psychological Bulletin, 113, 497–512. Meares, T. L. (2000). Norms, legitimacy, and law enforcement. Oregon Law Review, 79, 391–415. Merelman, R. J. (1966). Learning and legitimacy. American Political Science Review, 60, 548– 561. Nagin, D. S. (1998). Criminal deterrence research at the outset of the twenty-first century. In M. Tonry (Ed.), Crime and justice (Vol. 23, pp. 1–42). Chicago: University of Chicago Press. Nagin, D. S., & Paternoster, R. (1991). The preventive effects of the perceived risk of arrest. Crimi- nology, 29, 561–585. Nagin, D. S., & Pogarsky, G. (2001). Integrating celerity, impulsivity and extralegal sanction threats into a model of general deterrence. Criminology, 39, 865–892. Nugent, W. R., Williams, M., & Umbreit, M. S. (2003). Participation in victim-offender mediation and the prevalence and severity of subsequent delinquent behavior. Utah Law Review, 2003(1), 137–166. Paternoster, R. (1987). The deterrent effect of the perceived certainty and severity of punishment. Justice Quarterly, 4, 173–217. Paternoster, R. (1989). Decisions to participate in and desist from four types of common delinquency. Law and Society Review, 23, 7–40. Paternoster, R., Brame, R., Bachman, R., & Sherman, L. W. (1997). Do fair procedures matter?: The effect of procedural justice on spouse assault. Law and Society Review, 31, 163–204. Paternoster, R., & Iovanni, L. (1986). The deterrent effect of perceived severity. Social Forces, 64, 751–777. Paternoster, R., Saltzman, L. E., Waldo, G. P., & Chiricos, T. G. (1983). Perceived risk and social control: Do sanctions really deter? Law and Society Review, 17, 457–479. Poulson, B. (2003). A third voice: A review of empirical research on the psychological outcomes of restorative justice. Utah Law Review, 2003(1), 167–204. Reiss, A. (1971). The police and the public. New Haven, CT: Yale. Rest, J. R. (1986). Moral development: Advances in research and theory. New York: Praeger. Restorative Justice and Procedural Justice 325 Roberts, J. V., & Stalans, L. J. (2000). Public opinion, crime, and criminal justice. Boulder, CO: Westview. Robinson, P. H., & Darley, J. (1995). Justice, liability, and blame. Boulder, CO: Westview. Sampson, R. J., & Bartusch, D. J. (1998). Legal cynicism and (subcultural?) tolerance of deviance. Law and Society Review, 32, 777–804. Sampson, R. J., Raudenbush, S. W., & Earls, F. (1997). Neighborhoods and violent crime. Science, 277, 918–924. Scheff, T. J. (1997). Emotions, the social bond, and human reality. Cambridge, UK: Cambridge Uni- versity Press. Sherman, L. (1993). Defiance, deterrence, irrelevance: A theory of the criminal sanction. Journal of Research in Crime and Delinquency, 30, 445–473. Sherman, L. (1998). Alternative prevention strategies and the role of policing. Presentation at a con- ference on “Beyond incarceration.” Cambridge, MA: Harvard Trade Union Program. Sherman, L. (1999). Consent of the governed. Presentation at Hebrew University. Skogan, W. G. (1994). Contacts between police and public. London: A home office research and planning unit report. Sunshine, J., & Tyler, T. R. (2003a). The role of procedural justice and legitimacy in shaping public support for policing. Law and Society Review, 37, 555–589. Sunshine, J., & Tyler, T. R. (2003b). Moral solidarity, identification with the community, and the importance of procedural justice. Social Psychology Quarterly, 66, 153–165. Tangney, J. P., & Dearing, R. L. (2002). Shame and guilt. New York: Guilford. Tyler, T. R. (1990). Why people obey the law: Procedural justice, legitimacy, and compliance. New Haven, CT: Yale University Press. Tyler, T. R. (1997). Citizen discontent with legal procedures. American Journal of Comparative Law, 45, 869–902. Tyler, T. R. (1998). Public distrust of the law. University of Cincinnati Law Review, 66, 847–876. Tyler, T. R. (2001). Public trust and confidence in legal authorities. Behavioral Sciences and the Law, 19, 215–235. Tyler, T. R. (2003). Procedural justice, legitimacy, and the effective rule of law. In M. Tonry (Ed.), Crime and justice: A review of research (pp. 283–358). Chicago: University of Chicago Press. Tyler, T. R. (2004). Procedural justice. In A. Sarat (Ed.), The Blackwell companion to law and society (pp. 435–452). Malden, MA: Blackwell. Tyler, T. R. (2006). Legitimacy and legitimation. Annual Review of Psychology, 57, 375– 400. Tyler, T. R. (2005). Promoting employee policy adherence and rule following in work settings: The value of self-regulatory approaches. Brooklyn Law Review, 70, 1287–1312. Tyler, T. R., & Blader, S. (2000). Cooperation in groups. Philadelphia: Psychology Press. Tyler, T. R., and Blader, S.L. (2005). Can businesses effectively regulate employee conduct?: The antecedents of rule following in work settings. Academy of Management Journal, 48, 1143– 1158. Tyler, T. R., & Boeckmann, R. J. (1997). Three strikes and you are out, but why? The psychology of public support for punishing rule breakers. Law and Society Review, 31, 237–265. Tyler, T. R., Boeckmann, R. J., Smith, H. J., & Huo, Y. J. (1997). Social justice in a diverse society. Boulder: Westview. Tyler, T. R., & Darley, J. (2000). Building a law abiding society. Hofstra Law Review, 28, 707– 739. Tyler, T. R., & Huo, Y. J. (2002). Trust in the law: Encouraging public cooperation with the police and courts. New York: Russell-Sage. Tyler, T. R., & Wakslak, C. (2004). Profiling and the legitimacy of the police: Procedural jus- tice, attributions of motive, and the acceptance of social authority. Criminology, 42, 13– 42. Weber, M. (1968). Economy and society. (G. Roth and C. Wittich, Eds.). Berkeley: University of California Press. Weitekamp, E. G. M., Kerner, H., & Meier, U. (1996). Problem solving policing. Paper, International Conference on Problem Solving Policing as Crime Prevention, Stockholm, Sweden. 326 Tyler Whitman, J. Q. (2003). Harsh justice: Criminal punishment and the widening divide between American and Europe. Oxford, UK: Oxford University Press. TOM R. TYLER is University Professor of Psychology at New York University. His research examines the dynamics of authority in groups and organizations. His books include: The Social Psychology of Procedural Justice (1988); Why People Obey the Law (1990); Social Justice in a Diverse Society (1997); and Trust in the Law (2002). 
work_4kite2kjdnbuxkar7ldfvqvriu	----	Unequal Opportunities and Distributive Justice Learning and Peer Effects Urs Fischbacher Gerald Eisenkopf Franziska Föllmi-Heusi Research Paper Series Thurgau Institute of Economics and Department of Economics at the University of Konstanz No. 57 september 2010 Unequal Opportunities and Distributive Justice http://nbn-resolving.de/urn:nbn:de:bsz:352-opus-124339 http://kops.ub.uni-konstanz.de/volltexte/2010/12433/ 1 Unequal Opportunities and Distributive Justice Gerald Eisenkopf Urs Fischbacher Franziska Föllmi-Heusi University of Konstanz & Thurgau Institute of Economics Post Box 131 78457 Konstanz Germany Contact: gerald.eisenkopf@uni-konstanz.de September 23, 2010 Abstract: There is well established empirical evidence that more redistribution occurs when luck rather than performance determines the earnings. We provide experimental evidence on how unequal access to performance enhancing education affects demand for redistribution. In this experiment, we can control the information about the role of luck and effort. We find that unequal opportunities evoke a preference for redistribution that is comparable to the situation when luck alone determines the allocation rather than performance. Furthermore, unequal opportunities reduce performance incentives. Keywords: Distribution, Inequality of opportunities, Negotiation, Education, Experiment JEL-Codes: D03, D31, I20 Acknowledgements: We thank Kate Bendrick, Lisa Bruttel, Simeon Schudy, Pascal Sulser and Verena Utikal and Seminar participants at the 2010 ESA World Meeting in Copenhagen for helpful comments. Anton Berwald provided excellent research assistance. The usual disclaimer applies 2 1 Introduction People are more willing to accept inequality in incomes if it results from hard work rather than pure luck1. Differences in education account for a substantial share of this inequality but survey studies cannot reveal if and how income differences derived from education transform into a demand for redistribution2. First, the roles of luck and hard work are ambiguous with respect to the access to education. Random processes like high innate abilities or a favorable socio-economic environment enhance the chances to get education but the student herself still has to provide effort in order to acquire and improve her skill. Second and perhaps more important, people differ substantially with respect to their beliefs about the impact of luck and effort on the access to education. Moreover, the beliefs often do not reflect the actual inequality in the access to education3. We investigate the demand for post-educational redistribution with a real-effort experiment that takes these problems into account. In our experiment, subjects are paired in groups of two. In the real effort-task, a quiz task, they create an output, which they contribute to a common pool. Then, they negotiate how to distribute their joint output. In all treatments, subjects get the opportunity to learn some of the questions of the quiz. Our focus is on the education treatment in which one of the two subjects in a group gets a better education because she can learn more relevant questions. One benchmark is the skill treatment in which a subject�’s contribution depends mostly on her ex-ante skills. In both treatments, a subject�’s contribution increased with the number of correctly answered general knowledge questions. Hence, knowledge was the relevant skill in this experiment. Since one randomly chosen subject in each group in the education treatment received additional knowledge it is obvious that luck was more relevant for contributions in this treatment than in the skill treatment. A second benchmark is provided by the luck treatment, in which a lottery only determines the contribution. In each treatment we provided all subjects with identical information. Compared to survey studies, our experiment has four main advantages. First, in the field, it is unclear which processes create the inequality. This implies in particular that one 1 See for example the studies by Hoffman et al. (1994) , Burrows and Loomes (1994) , Ruffle (1998) , Konow (2003), or Durante and Putterman (2009). 2 Educated people earn more money and receive higher nonmonetary rewards as well. Psacharopoulos and Patrinos (2004) provide a survey on the former and Grossman (2006) one on the latter issue. 3 Alesina and Glaeser (2005) show in a cross-country study that beliefs do not reflect the actual (in)equality of opportunities correctly. Instead, people may base their beliefs on personal experiences rather than on econometric studies (Piketty, 1995) and they may have a biased perception of these experiences (Benabou and Tirole, 2006) 3 does not know other peoples�’ beliefs about these processes. In our experiment there is common knowledge about the impact of random processes on allocations. Thus, the subjects in our experiment know the sources of inequality (luck, merit, inequality of opportunity). Second, subjects do not just state preferences for redistribution. They make actual distribution decisions. Third, by devising a rank order payment scheme we assured that the distribution of initial allocations is the same in all three treatments. In this way, we control for the possible confound that egalitarian societies may be less productive as the anticipation of high redistribution discourages contribution to the social output in the first place. Furthermore, the design ensures that participants have a comparable incentive to provide effort in all treatments. Fourth, the random assignment of subjects into treatment groups eliminates possible selection effects that would be present in the field. Our study takes two principles of distributive justice into account, an egalitarian one and a desert-based one. Strict egalitarianism �“advocates the allocation of equal material goods to all members of society�” (Lamont and Favor (2007) in the online version of the Stanford Encyclopedia of Philosophy). According to the desert principle, people should be rewarded according to the value of their contribution to the social product4. Several studies have shown that people opt for more egalitarian distributions once luck rather than meritocratic criteria determine an outcome The desert-principle and similar meritocratic ideas include a concept of equality, meaning equality of opportunity rather than equality of outcome. A third fairness ideal, liberal egalitarianism, addresses inequality of outcomes. Similar to the accountability principle (J. Konow, 2000, 1996) liberal egalitarianism demands that distributions should depend on choices and decisions. If two people make the same choice in the same context, both should get the same reward even if the outcomes differ. Cappelen et al. (2007) investigate distribution decisions after an investment period with unequal rates of returns. They provide evidence for the application of all three fairness norms among their subjects. However, their experiment addresses the question on how inequality of opportunities affects redistribution decisions only in parts. For this question it is important to know whether the different fairness norms also prevail in situations with equal opportunities or purely randomly determined investments5. Such a comparison reveals whether people 4 It is important to distinguish between the desert principle and the provision of incentives. The latter implies a provision on the distribution of outcome before production has taken place while the former considers a distribution after production has taken place. 5 Inequity averse people in the sense of Fehr and Schmidt (1999) do not accept inequality in outcomes even if the differences depend on choices only. On the other hand, libertarian thinkers such as Hayek (1960) are reluctant to accept redistribution even if luck has a strong impact on economic outcomes. 4 make claims for more or less redistribution once they have correct information about the determinants of inequalities in opportunities. This comparison is particularly important in the context of inequalities in the access to education. Educational choices depend on skills (or abilities) which are, at least to a certain degree, exogenous, unobservable and unevenly distributed productivity factors6. Nevertheless, skill premiums are widely tolerated and meritocratic societies claim that the most able citizens do constitute their elite. We also provide a new perspective on the analysis of taxation in economies with unequal opportunities. Bovenberg and Jacobs (2005) claim that governments face a trade-off between equity and efficiency with respect to the financing of education. Subsidized education induces a more efficient labor supply but implies, ceteris paribus, redistribution from less intelligent, relatively poor individuals to smarter, richer ones. As a consequence, most developed economies use progressive taxation to mitigate income inequality in general, but they also subsidize education, even at highly selective universities. As mentioned above, any demand for redistribution depends on the beliefs about the roles of luck and effort in the generation of wealth, whether or not these beliefs are correct. Alesina and La Ferrara (2005) find that, in the United States at least, preferences for redistribution depend crucially on the individual belief in equal opportunity. Alesina and Angeletos (2005) show that international differences in beliefs about the source of inequality explain the differences in redistributive characteristics of tax regimes. The more people believe that luck determines income, the higher is the demand for redistribution. Our results show that subjects�’ responses to unequal learning opportunities are similar to their responses when luck alone determines output. Nevertheless, we find that the size of a subject�’s contribution has a significant impact on the allotment of the common pool. Unsurprisingly, these �“moral property rights�” (as in Gächter and Riedl (2005)) are particularly strong in the skill treatment but they are present even in the luck treatment.. We also observe that the differences in the bargaining behavior have an incentive effect, as subjects in the skill treatment produce more points than comparable subjects in the education treatment. These results suggest that full awareness about inequalities in opportunity makes people less productive and induces stronger claims for redistribution. The paper is structured as follows. The following section presents the experimental design. Afterwards we provide behavioral predictions. Section 4 presents the results of the experiment. Section 5 summarizes the paper and provides concluding comments. 6 Therefore, Bovenberg and Jacobs (2005) claim that governments face a trade-off between equity and efficiency with respect to the financing of education. Subsidized education induces a more efficient labor supply but implies, ceteris paribus, a redistribution from less intelligent, relatively poor individuals to smarter, richer ones 5 2 Experimental design In all treatments, we examine the negotiation of two group members about how to distribute a jointly owned common pool. There are three treatments, which differ in how the contribution to the common pool is determined: In the first treatment (the skill treatment), the individual contribution of a subject to the joint output was determined by her skills (more specifically her general knowledge). Also in the second treatment (the education treatment), skill determined output. However, in this treatment one randomly chosen member in the group had the opportunity to enhance her relevant skills relative to the other member. In the third treatment (the luck treatment), luck determined the individual contribution. The experiment included three different phases, a learning phase, a production and contribution phase, and a negotiation phase. Learning All subjects learned the correct answers for 60 knowledge questions. We used multiple choice versions of questions from the German standard version of the quiz game �“Trivial Pursuit�” which includes questions on geography, entertainment, history, arts and literature, science and technology as well as sports. Subjects they could display the correct answer of each question with a button. The treatments differed with respect to the number of questions a subject was familiar with from the learning phase. In the skill treatment, 5% of the questions from the learning period (i.e. 3 out of 60) reappeared in the production period. In the education treatment, one member in each group had learned 5% of the relevant questions while the other one had learned 95% (i.e. 57 out of 60 questions). In the luck treatment, each subject learned 50% of the relevant questions. In the skill and the luck treatment, the subjects were informed about the number of relevant questions at the beginning of the learning period. In the education treatment, the subjects were initially informed about the possible number of relevant questions. The actual assignment of the number of relevant questions and the information of the subjects occurred immediately after the learning period via the throw of a die. Production and contribution to the common pool In the production phase each subject had to answer 60 knowledge questions. In the production phase, the subjects could choose between 4 possible answers. Only one of the answers was correct. As Trivial Pursuit provides only the correct answers, the authors of this paper 6 developed the alternatives on their own. The experiment included two payment components. The first component was dependent on the own absolute performance. A subject received 0.2 points for a correct answer, with one point being the equivalent of 0.15 euro (about 0.23 US dollar at the time of the experiment). A wrong answer implied a loss of 0.2 points. The subjects could also choose to leave a question unanswered. But once the subjects had made their choice for a question they could not return to that question. An unanswered question did not affect the number of points. If more answers were wrong than right, the payment was deducted from the show-up fee of 4 euro. The second payment component was a subjects share from the common pool. The negotiation procedure will be discussed below. A subject´s contribution to the common pool was determined by the subject�’s rank among fellow participants in the session. In the skill and the education treatments, performance determined the rank, i.e., a more productive subject contributed more to the common pool. The subject with the lowest productivity in a session contributed 10 points, the subject with the second lowest productivity 20 points and so on. In sessions with 24 participants, the most productive participant contributed 240 points. We did not use the earned points as performance measure since it would be almost impossible to get comparable performance distributions across the treatments. In the luck treatment, in each session a two-stage random process determined the individual contributions of the 24 subjects to the common pool in their specific group. A die determined high (contribution > 120 points) and low contributors ( 120 Punkte). Half of the subjects were in either condition. Then, a lottery specified the actual size of the individual contributions7. The realizations were independent of the individual productivity. Hence, subjects in the luck treatment benefited from the production phase only via the income to their private account. After production, the subjects were matched into groups of two. In the skill treatment, the matching occurred at random. In the luck treatment, each group included one high contributor to the common pool and one low contributor. In the education treatment, one educated person was always matched with one uneducated person. The high differences in learned questions in this treatment ensured that all educated subjects were also high contributors. These groups now negotiated about the distribution of the common pool (see below). Table 1 summarizes the different treatments with respect to their characteristics in the learning and production phases. 7 120 points or less in the case of low contributors, 130 points or more in the case of high contributors. The possible contributions were ranked in steps of 10 points, with 10 as the lowest possible contribution and 240 as the highest possible one. 7 Table 1: The phases of the experiment and the experimental treatments Phases Skill Treatment Education Treatment Luck Treatment Learning (60 questions) 5% are relevant for production 5% are relevant for one group member 95% are relevant for the other group member 50% are relevant for production Production Private Benefit 60 questions to be answered 0.2 points reward for a correct answer. 0.2 points deduction for a wrong answer. Contribution to common pool The number of earned points influences the contribution Actual contribution between 10 and 240 according to a subject�’s productivity rank among the other subjects in the session Actual contribution between 10 and 240 according to a random process Matching into groups Random. We analyze groups with one high contributor (>120 points) and one low contributor ( 120 points) One educated person and one uneducated person. One high contributor (>120 points) and one low contributor ( 120 points) Negotiation Each group member makes a proposal and a minimum demand. One of the two proposals is selected. The proposal is accepted if it exceeds the other person�’s minimum demand. 8 Negotiation The negotiation procedure was identical in all treatments. At the beginning of the phase all subjects were informed about the size of the common pool and the share they contributed to it. After that, each subject decided as a proposer and as a demander. In the former role, the subject proposed how to distribute the common pool by allocating percentage points to herself and the other group member. As a demander, the subject stated the minimum share for herself for accepting the proposal of the other player. A random mechanism determined which player in the group was the proposer. If the allotted share to the demander matched or exceeded the stated minimum, the proposal was accepted and the pool divided accordingly. If the allotted share was below the demand the negotiation failed in this round. This also happened when the proposal of the other player would have been accepted. If the negotiation failed, the procedure was repeated with a smaller common pool. Six points were deducted from the common pool after each round with a failed negotiation. Again a random mechanism decided whose proposal and whose demand was to be considered. All negotiations finished after a proposal had been accepted. No group exhausted their pool in the negotiations. 3 Behavioral predictions Let us first consider standard prediction in the negotiation stage. Before knowing their type, subjects have the same bargaining power and therefore they can and will enforce to get get half of the pie. Thus, if the cake size equals c, a rational and selfish subjects accepts a proposal of least c/2-3. Therefore, this offer will be made. This implies that proposals and demands should not differ within and across the treatment groups. However, we expect that principles of distributive justice shape offers and minimum demands in specific ways within each treatment. Several experimental studies have shown how luck and merit influence distribution preferences and negotiation outcomes (see for example Hoffman et al. (1994), Burrows and Loomes (1994), Ruffle (1998), Konow (2003), or Durante and Putterman (2009)). These studies suggest that distributional norms differ between the luck and the skill treatment. Hence, we expect the following empirical results in our experiment. First, low (high) contributors make higher (lower) minimum demands in the luck treatment than in the skill treatment. Second, low (high) contributors propose less (more) generous distributions to the other group member in the luck treatment than in the skill treatment. These distributions 9 imply that, in the skill treatment, the correlation between proposals/demands and a subject�’s contributions to the common pool is significantly larger than in the luck treatment. The focus of our paper is on the education treatment. The egalitarian and the desert principles conflict in this treatment. The assignment of productivity-enhancing education occurs at random and supports the application of the egalitarian principle. However, each subject still has to produce and contribute to the common pool. Moreover, the size of the individual contribution of each group member depends also on her productivity relative to the performance of the fellow (un-)educated participants. Therefore, each individual has an impact on the size of the common pool. This impact provides a motive for the application of the desert principle. The experimental setup provides a clean environment for testing whether subjects consider a higher contribution via randomly assigned education as luck or as merit. We expect that demands and proposals in the education treatment are between those of the skill treatment and those of the luck treatment. It is an open question if the tendency is towards the former or the latter treatment. 4 Procedure and Results The experiment was conducted at the lakelab at the University of Konstanz. We programmed the experiment with z-Tree (Fischbacher, 2007) and recruited 190 participants among the students of the University using ORSEE (Greiner, 2004). All subjects received a show up-fee of 4 euros (about 5.75 US-dollars at the time of the experiment (Autumn 2009 and Spring 2010)) and additionally 0.15 euros per experimental point. In each treatment, all subjects received identical instructions, including comprehension questions. Once all subjects had answered the questions correctly, the conductor of the experiment summarized the experiment in a standardized text again. All instructions were framed in a neutral way, they are attached in the appendix. We conducted 12 sessions in total, eleven with 24 subjects per session. One session in the skill treatment included only 22 participants. Subjects earned on average 22.93 euros, including the show up fee. Table 2 shows the number of subjects and the average contribution of the high contributor in each treatment. A high contributor is a person who contributed 130 points or more to the common pool. Note that the number of subjects in the skill treatment is almost twice as large as in each of the other treatments. In this treatment, we consider only subjects in those groups as relevant in which one subject contributed 120 points or less and the other subject contributed 130 or more points. This provision ensures that the size of the common 10 pool is comparable across all treatments8. Therefore, we can denote the contribution in percentage points. The difference in mean contribution of high contributors between the skill and the education treatment is not significant (p = .323, according to the Wilcoxon rank sum test). Table 2: Number of subjects, common pool sizes and mean contribution of high contributors (in percentages) across the treatments Treatment Subjects Groups Common pool size Contribution of the high contributor* Mean St.Dev Mean St. Dev Skill All obs. 142 71 246.90 100.10 68.26% 12.35 Relevant** 72 36 254.44 43.52 72.35% 10.86 Education 72 36 250 60.62 75.48% 9.74 Luck 72 36 250 52.92 75.21% 11.11 *The high contributor are the subjects whose contribution was in the upper half within the session. **In the skill treatment, the relevant observations are the subjects in groups with one high and one low contributor. These groups are comparable with the other treatments. First we investigate whether treatments differ with respect to the minimum demands. Table 3 provides the minimum demands of high and low contributors and their proposed share for themselves in each treatment. 8 Hence, it is also not a problem that in one session only 22 subjects participated. The reduction in subjects just implies that the expected number of relevant observations is smaller in this session than in the other ones. 11 Table 3: Minimum demands and proposals of high and low contributors across the treatments Treatment Subjects Minimum demand of the high contributors Proposal of the high contributors for herself Mean St. Dev Mean St. Dev Skill 36 65.69% 9.66 67.56% 11.79 Education 36 61.42% 11.76 66.42% 11.09 Luck 36 59.39% 10.48 63.33% 11.21 Minimum demand of the low contributor Proposal of the low contributor Mean St. Dev Mean St. Dev Skill 36 34.5% 9.91 37.97% 10.80 Education 36 40.25% 10.57 41.69% 9.95 Luck 36 37.67% 10.25 42.47% 11.16 Minimum Demand: Minimum share of the common pool for the demanding subject. Proposal: Proposed share of the common pool for herself (i.e. not for the other group member). We find a significant difference in minimum demands between high contributors in the skill and in the luck treatment (Wilcoxon rank sum test, p = .010). The difference between the low contributors in those treatments is not significant (p = .107). The demands of low contributors in the skill and in the education treatment differ significantly (Wilcoxon rank sum test, p = .020). The proposals of the high contributors differ between the luck and the skill treatment (p = 0.069; according to the Wilcoxon rank-sum test). Low contributors in the skill treatment do not make significantly more generous proposals than those in the other treatments. The relationship between proposals (demands) and the contribution to the common pool provides more specific information about differences in distribution norms between the three treatments. We derive the role of individual contributions via OLS estimations of the proposed share for the other player (own minimum demand) in each treatment, with the own share of production as the single independent variable. Table 4 shows the relationship in the three treatments. Note that we subtract 50% from proposals, demands and production shares. Thus the constant term in the regression output shows how proposals and demands deviate from an equal sharing of the common pool. 12 Table 4: OLS estimations of first round proposals and demands in the different treatments (in %) Dependent Variable Proposed Share for herself (-50%) Minimum Demand (-50%) Skill Treatment Share of Production (-50%) .671 (.039)*** .680 (.035)*** Constant 2.764 (.973)*** .097 (.863) Adjusted R² .804 .843 Education Treatment Share of Production (-50%) .485 (.041)*** .418 (.045)*** Constant 4.056 (1.110)*** .833 (1.220) Adjusted R² .665 .548 Luck Treatment Share of Production (-50%) .408 (.045)*** .428 (.040)*** Constant 2.903 (1.224)** -1.472 (1.094) Adjusted R² .538 .618 *** significance level p<.01; ** p<.05; N = 72 in each OLS estimation, standard errors in parentheses The results confirm the existence of �“moral property rights�” (Gächter and Riedl, 2002), as they show a strong relationship between contributions and proposals (demands) even in the luck treatment. Most subjects accept that a randomly determined large contribution implies an entitlement to a rather high share of the common pool, even if the other player was luckier in her contribution. The production coefficients for proposals and demands are remarkably similar within each treatment. We then estimate if the impact of production shares on demands and proposals differs across the treatments. Here we exploit the interaction terms between the treatment variables (luck and skill) and a subject�’s share of production (see table 5). 13 Table 5: OLS estimations of first round proposals and demands across all treatments. (in %), Reference: Education Treatment Dependent Variable: Proposed Share for herself (-50%) Minimum Demand (-50%) Share of Production (-50%) .485 (.041)*** .418 (.039)*** Luck -1.153 (1.565) -2.306 (1.512) Luck Share of Production (-50%) -.077 (.057) .011 (.055) Skill -1.292 (1.565) -.736 (1.512) Skill Share of Production (-50%) .186 (.060)*** .262 (.058)*** Constant 4.056 (1.107)*** .833 (1.069) Adjusted R² .685 .691 *** significance level p<.01; N = 216 in each OLS estimation, standard errors in parentheses The interaction terms (Luck Share of Production and Merit Share of Production) indicate if the impact of production shares on demands and proposals differs significantly across the treatments. The results show that individual contributions are more relevant for proposals and demands in the skill treatment than in the other two treatments9. Distributional preferences in the education are remarkably similar to those in the luck treatment. This result implies that subjects consider only the random access to education but not the differences in performance within each educational group when they make their proposals and demands in the education treatment. Finally we focus on the adjusted R² for the OLS estimations in table 3. They are larger in the skill treatment than in the other two treatments. We calculated the residuals for each of these OLS estimations. An F-test reveals that the variance of these residuals in the skill treatment is much lower than in the other two treatments (The p-values for the differences in demand are all smaller than .01; for the differences in proposals they are smaller than .1). These differences indicate that there is a larger conflict of norms in the education and the luck treatment than in the skill treatment. Note however that actual acceptance rates of first round proposals were similar in the skill and in the luck treatment (52.8% and 55.6%, respectively) but significantly lower in the education treatment (37.5%, p = .067, in comparison with the skill treatment, and p = .030 in comparison with the luck treatment). Furthermore the actual 9 A more detailed analysis and the descriptive statistics in table 3 show that this difference in relevance of contributions between the skill and the other two treatments derives in particularly from differences among high contributors. The descriptive statistics in table 3 suggest the same. However, due to the limited number of observations, significant results of such a detailed analysis obtain only for differences in demands but not proposals. 14 number of bargaining rounds required to find an acceptable proposal did not differ across the treatments. About 75% of the groups find an agreement in round 1 or 2. Apparently, the anticipation of differences in bargaining behavior across the treatments affects behavior in the production period. The reader may recall that we standardized the contributions to the common pool in all treatments. In the skill as well as in the education treatment, the size of the contribution depended on the number of correctly answered questions. In the education treatment half of the subjects had learned 5% of the relevant questions, as did all subjects in the skill. Because of the random assignment into the different treatment groups and into the specific role, the earnings in the production period (i.e. the responses to the questions) should not differ for these subjects. However, this is not the case. Table 6 shows the average performance in the production period10 across the treatments. The difference between the skill treatment and the �“uneducated�” subjects in the production period is significant at the 10% level11. This difference suggests that subjects in the skill treatment have a stronger incentive to provide correct answers. One plausible explanation for this behavior is the expectation among subjects that individual performance is more relevant in the skill treatment than in the education treatment. Moral property rights provide another explanation. Uneducated subjects in the education treatment anticipate that they can contribute only up to 120 points. Participants in the skill treatment can contribute up to 240 points. Since the notion of moral property rights assigns higher shares to higher contributors they induce lower incentives for uneducated subjects in the education treatment. 10 The difference between correct and wrong answers. 11 p = .095 (Wilcoxon rank-sum test). For the relevant observations, the p-value is .046. 15 Table 6: Number of subjects, share of learned answers and performance in the production period across the treatments Treatment Subjects Share of learned answers Performance in the production period St.Dev Skill All obs. 142 5% 12.11 8.06 Relevant obs. 72 5% 13.01 7.78 Education 36 5% 9.81 10.50 36 95% 55.94 3.47 Luck 72 50% 36.06 4.67 The difference between correct and wrong answers determines the performance in the production period. 5 Summary and Conclusion In this paper, we investigate how people respond to one of the most important sources of inequality, unequal access to education. In a real-effort experiment, subjects provide an effort, which determines their contribution to a common pool. In the subsequent negotiation stage, we assess how people distribute the contribution. Depending on the treatment, luck, skill or random access to skill-enhancing education determined the size of the individual contributions. Our subjects received clear information about these determinants of contribution. Due to the experimental design, the size of individual contributions and the common pool did not vary systematically across the treatments. Therefore, we could eliminate crucial confounds that restrict the analysis of inequalities of opportunities in previous survey and experimental studies. In all treatments, proposals and demands are correlated with individual contributions to the common pool, even if luck rather than innate or acquired skills determine the size of these contributions. Individual contributions matter more when innate skill rather than luck determines outcomes. Random access to skill-enhancing education turns out to be perceived similarly as the luck situation. Subjects without access to such education make similar demands and proposals as those subjects with a randomly determined contribution. This similarity reveals that when the inequality in educational opportunities is salient, meritocratic criteria get out of focus. Our results show that redistribution of outputs that are produced by 16 saliently unequal opportunities is similar to redistribution after output created by luck alone. Unequal opportunities increase redistribution and, therefore, reduce the incentives to provide high output. Thus, public investments in education are less effective if there is not equal access to education. This implies that improved access to education can reduce inequality and increase social welfare. References Alesina, A. and Angeletos, G. M. "Fairness and Redistribution." The American Economic Review, 2005, 95(4), pp. 960-80. Alesina, A. and Glaeser, E. L. Fighting Poverty in the US and Europe: A World of Difference. Oxford University Press, USA, 2005. Alesina, A. and La Ferrara, E. "Preferences for Redistribution in the Land of Opportunities." Journal of Public Economics, 2005, 89(5-6), pp. 897-931. Benabou, R. and Tirole, J. "Belief in a Just World and Redistributive Politics." Quarterly Journal of Economics, 2006, 121(2), pp. 699-746. Bovenberg, A. L. and Jacobs, B. "Redistribution and Education Subsidies Are Siamese Twins." Journal of Public Economics, 2005, 89(11-12). Burrows, P. and Loomes, G. "The Impact of Fairness on Bargaining." Empirical Economics, 1994, 19(2), pp. 201-21. Cappelen, A. W.; Hole, A. D.; Sørensen, EØ and Tungodden, B. "The Pluralism of Fairness Ideals: An Experimental Approach." The American Economic Review, 2007, 97(3), pp. 818-27. Durante, R. and Putterman, L. "Preferences for Redistribution and Perception of Fairness: An Experimental Study." Working Papers, 2009. Fehr, E. and Schmidt, K. M. "A Theory of Fairness, Competition, and Cooperation*." Quarterly Journal of Economics, 1999, 114(3), pp. 817-68. Greiner, B. "The Online Recruitment System Orsee 2.0�–a Guide for the Organization of Experiments in Economics." Papers on Strategic Interaction, University of Cologne, Working Paper Series in Economics, 2004, 10. Grossman, M. "Education and Nonmarket Outcomes," E. Hanushek and F. Welch, Handbook of the Economics of Education. Amsterdam: Elsevier Science, 2006, 577-633. Hayek, F. A. "The Constitution of Liberty," Chicago: University of Chicago Press, 1960. Hoffman, E.; McCabe, K.; Shachat, K. and Smith, V. "Preferences, Property Rights, and Anonymity in Bargaining Games." Games and Economic Behavior, 1994, 7(3), pp. 346-80. Konow, J. "Fair Shares: Accountability and Cognitive Dissonance in Allocation Decisions." American Economic Review, 2000, 90(4), pp. 1072-91. ____. "A Positive Theory of Economic Fairness." Journal of Economic Behavior & Organization, 1996, 31(1), pp. 13-35. ____. "Which Is the Fairest One of All? A Positive Analysis of Justice Theories." Journal of Economic Literature, 2003, 41(4), pp. 1188-239. Lamont, Julian and Favor, Christi. 2007. "Distributive Justice," Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/justice-distributive/. retrieved on 2009, Nov 26th Piketty, T. "Social Mobility and Redistributive Politics." The Quarterly Journal of Economics, 1995, pp. 551-84. Psacharopoulos, G. and Patrinos, H. A. "Returns to Investment in Education: A Further Update." Education Economics, 2004, 12(2), pp. 111-34. 17 Ruffle, B. J. "More Is Better, but Fair Is Fair: Tipping in Dictator and Ultimatum Games." Games and Economic Behavior, 1998, 23(2), pp. 247-65. Appendix A General Instructions for all participants (translated from German) Welcome to this economic experiment. If you read the following instructions carefully you will receive money in addition to the 4 euro show-up fee. Your earnings depend on your decisions and the decisions of other participants. Hence, please read the instructions carefully. If you have any questions please contact us before the actual experiment starts. During the experiment, it is forbidden to talk with the other participants. We will exclude you from this experiment and any payment if you violate this rule. During the experiment we use points instead of euros. We calculate all your earnings in points and exchange them into Euros at the end of the experiment. The exchange rate is 1 point = 0,15 euro At the end of the experiment, we will pay you all your points and the show-up fee of 4 euros in cash. Now we will explain the precise procedure of the experiment. Summary In this experiment you are a member in a group of 2 persons. The experiment has three phases. First comes a learning phase in which you can acquire knowledge. In the following production phase both members of the group can earn points by using their knowledge. Skill Treatment Education Treatment Luck Treatment Each person gets 10% of his produced points into a private account. Each person earns additional rank points which depend on the production of this person in comparison with all other participants. The group members differ with respect to the benefit they receive from the learning period. A die determines how much each member benefits. Each person gets 10% of his produced points in a private account. Each person earns additional rank points which depend on the production of this person in comparison with all other participants. The remaining points will be substituted by points that you draw from an urn and which you have to pay into a group account. There is an urn with high point scores and an urn with low ones. A die decides from which urn you can draw. Each person has to pay these rank points into a group account. In the third phase, the bargaining phase, the two group members negotiate about the distribution of this group account. Learning phase 18 In the learning phase you can prepare for the production phase. In the production phase your earnings increase in the number of correctly answered knowledge questions. In the learning phase you can learn some of these correct answers. We derived the questions from the game �“trivial pursuit�” and transformed them into multiple choice questions with four possible answers. You can also choose the option �“I do not know�”. We chose the questions randomly; they cover all areas of knowledge. In the learning phase, you can learn 60 questions and their corresponding correct answers. The screen is structured as follows: There are 6 pages with 10 questions each on your screen. You can go from one page to another as you wish. The red buttons show you the correct answer for a specific question. In the top right corner you can see the remaining time. You have 15 minutes time (900 sec.). Note that the questions in the production phase show up in a random sequence. You may not take notes, if you do we will exclude you from the experiment. After 15 minutes you will move automatically into the production phase. Lottery (only in the education treatment) At the beginning of the production phase, a die determines which group member benefits more strongly from the learning period. In each group, one member has learned 95% of the correct answers, the other member learns only 5% of them. 19 A randomly chosen person in this room will throw a six sided die and type into her computer whether the number is odd or even. You will see on your screen how many answers you will learn with an odd number and how many with an even one. Production phase The production phase lasts 15 minutes. You can earn points by answering 60 knowledge points correctly during this time. Skill Treatment Education Treatment Luck Treatment You have learned 5% of these questions. The die has determined whether you have learned 5% or 95% of these questions. You have learned 50% of these questions. The sequence of the questions is randomly determined. For a correct answer, you earn 2 points. For an incorrect answer, you lose 2 points. The option �“I do not know�” does not influence your score. You give your answer on a screen like this: On the top you see the number of answered questions. In the middle you see the question. Below the questions you find buttons for the 4 provided answers and the option �“I do not know�”. In the top right corner you can see the remaining time. 20 Private account and group account (in the skill and education treatments) At the end of the 15 minutes the computer calculates how many points are in your private account and how many go into your group account. 10% of the produced points go into your private income. If your score is negative, we deduct the 10% from your show-up fee. We substitute the remaining points with rank points, which depend on your score and the score of the other participants. The computer ranks the participants according to the number of points they have produced. Note that we rank all subjects (added in the education treatment: independent of the number of questions they have learned in the learning phase). The person with the lowest number of points receives 10 rank points, the person with the second lowest number 20 points, the person the third lowest number 30 points and so on. The person with the highest number will receive 240 points, if 24 persons are in the lab. If 2 or more persons have the same number of points, the computer assigns the rank points randomly. These assigned rank points go into the group account. Information about the received rank points: 21 If your point score is negative this has an impact on your private account but not on your group account. You will contribute at least 10 rank points to your group account. Example 1: You have answered 45 questions correctly and 5 incorrectly. You earned 80 points. The other group member has 35 correct answers and 10 wrong ones. She earned 50 points. In comparison with the other participants you have earned the seventh lowest number of points, the other member the third lowest number. Your private income: 10% of 80 = 8 points Private income of the other member:10% of 50 = 5 points Your income in rank points the seventh lowest point score: = 70 rank points The income of the other member in rank points the third lowest point score: = 30 rank points Your group’s account: 70 rank points + 30 rank points = 100 points Example 2: You have answered 15 questions correctly and 20 incorrectly. You earned -10 points. The other group member has 35 correct answers and 0 wrong ones. She earned 70 points. In comparison with the other participants you have earned the lowest number of points, the other member the eighth lowest number. 22 Your private income: 10% of -10 = -1 point Private income of the other member:10% of 70 = 7 points Your income in rank points the lowest point score: = 10 rank points The income of the other member in rank points the eigth lowest point score: = 80 rank points Your group’s account: 10 rank points + 80 rank points = 90 points This calculation is identical for all subjects. You will see it on your screen. You will receive information about your private account and how much each group member has contributed to the group account (in rank points as well as in shares (%)). You keep your private earnings. You will bargain with the other group member about the distribution of the group account in the next phase. Private account and group account (in the Luck treatment) At the end of the 15 minutes the computer calculates how many points are in your private account and how many go into your group account. 10% of the produced points go into your private income. If your score is negative, we deduct the 10% from your show-up fee. We substitute the remaining points with points you have drawn from an urn. Points from the Urn and the group account Your draw from the urn depends on the urn you draw from. There are two different urns. In the LOW urn you can draw between 10 and 120 points. In the HIGH urn, you can draw between 130 and 240 points. A die decides from which urn you may draw. A randomly chosen person in the lab throws a six-sided die and types into his computer whether the resulting number is odd or even. Your screen shows you from which urn you may draw in case of an odd number and from which in case of an even one. In each group of two persons, one person can draw from the high urn and one from the low urn. The conductors of the experiment will go around with the urn and you can make your draw. You will type the drawn number of points into the following screen. These points substitute your remaining points from the production phase. 23 In the first line is the number of points you collected in the production phase. Below you see the number of points in your private account and the number of points which will be substituted with points from the urn. The points from the urn go into a group account. Since the potential draws are distributed between 10 and 240 points, you contribute at least 10 points into the group account. Example 1: You have answered 45 questions correctly and 5 incorrectly. You earned 80 points. The other group member has 35 correct answers and 10 wrong ones. She earned 50 points. Your private income: 10% of 80 = 8 points Private income of the other member:10% of 50 = 5 points You were able to draw from the high urn and drew 150 points. The other group member had to draw from the low urn and drew 20 points. These points substitute the remaining points from the production phase. Your group’s account: 150 urn points + 20 urn points = 170 points This calculation is identical for all subjects. You will see it on your screen. You receive information about your private account and how much each group member has contributed to the group account (in rank points as well as in shares (%)). You keep your private earnings. You bargain with the other group member about the distribution of the group account in the next phase. Bargaining Phase In the bargaining phase both group members bargain about the distribution of the points in the group account. Negotiations proceed as follows. There exists a role A and a role B. The group member with role A proposes a distribution of the points in the group account. The member with role B makes a claim for a minimum share of the group account that she wants to 24 receive. If the proposed share of A for B is equal to or exceeds the minimum share demanded by B, the proposal of A is accepted and the negotiation ends. Negotiation fails if the proposed share is smaller than the minimum demand. In this case, 6 points are withdrawn from the group account and a new bargaining round starts. The bargaining phase can go on for several rounds until an agreement or until the group account is empty. In each round, roles A and B are assigned randomly to the group members. Detailed Procedure of a Bargaining Round 1. Decision as A: First both group members make a proposal about the distribution of the group account by stating a share (in percentages) for themselves and a share for the other group member. 2. Decision as B: In this second step, both group members state the minimum share of the group account they want to receive. 3. Afterwards, a lottery decides which member has role A and which member has role B. 4. The computer compares the proposal of A with the minimum demand of B: a. An agreement is reached if the proposal of A is equal to or larger than B�’s minimum demand. In this case the points in the group account are distributed according to A�’s proposal. b. There is no agreement if A�’s proposal is smaller than B�’s minimum demand. In this case the group account is reduced by 6 points and a new bargaining round starts. 5. In the next bargaining round both group members make a proposal for the distribution of the group account and a minimum demand. 6. Again, a lottery decides the assignment of roles A and B. 7. The computer compares the proposal of A with the minimum demand of B: The experiment ends once the group members reach an agreement or the group account is empty. In the latter case, no one receives a payment from the group account. Example 1: There are 100 points on the group account – 70 from you and 30 from the other group member. Both group members bargain about the distribution of this group account by making a proposal and a minimum demand. Your distribution proposal (for role A): 80% for you and 20% for the other group member Your minimum demand (for role B): at least 70% for you The distribution proposal of the other member(for role A): 40% for herself and 60% for you. Her minimum demand (for role B): at least 40% for herself A lottery decides that you are in role A and the other group member in role B. A comparison between your proposal and the minimum demand of the other group member shows that there is no agreement in this bargaining round. You proposed 20% to the other member, but she demanded at least 40%. Example 2: There are, again, 100 points on the group account – 70 from you and 30 from the other group member. Both group members bargain about the distribution of this group account by making a proposal and a minimum demand. 25 Your distribution proposal (for role A): 60% for you and 40% for the other group member Your minimum demand (for role B): at least 60% for you The distribution proposal of the other member(for role A): 40% for herself and 60% for you. Her minimum demand (for role B B): at least 35% for herself A lottery decides that you are in role A and the other group member in role B. A comparison between your proposal and the minimum demand of the other group member shows that there is an agreement in this bargaining round. You proposed 40% to the other member, and she demanded at least 35%. The bargaining procedure on your screen. You type your proposal in the following screen. In the top left corner you see the contribution of each group member into the group account (in points). In the top right corner you see the current number of points in the group account and the current bargaining round. Below this information, you can make your proposal for role A. 26 You will type your minimum demand in the following screen. In the top left corner is the contribution of each group member into the group account (in points). In the top right corner is the current number of points in the group account and the current bargaining round. Below this information, you can make your minimum demand for role B. A lottery decides which member has role A and which member has role B. The computer compares the proposal of A with the minimum demand of B: The bargaining ends once the group members reach an agreement or the group account is empty. At the end of the bargaining, you can see your income and the experiment ends. 27 Training Questions (From the education treatment: we adapted the questions for the other treatments) Please answer the following questions. They do not affect your final payment. Please signal if you have questions or once you have completed the answers. 1) In the production phase, you knew 95% of the questions from the learning phase. You have answered 45 questions correctly and 10 incorrectly. The other group member knew 5% of the questions and has answered 20 questions correctly and 25 incorrectly. a. How many points are in your private account? ________________________ b. How many points are in the private account of the other group member? ______________ 2) You earned 60 points in the production period, the other group member 40. In comparison with the other participants, you have the fifth lowest score and the other member the second lowest. a. How many rank points do you get? __________________ b. How many rank points does the other group member get? ________ c. How many points are in the group account? __________________ 3) After the production phase, your group has 100 points in its account. You propose a share of 80% for yourself and 20% for the other group member and the lottery assigns role A to you. The other group member demands at least 10% for herself. a. Is there an agreement? __________________________________ b. If yes, how many points will you get? _______ c. If yes, how many points will the other group member get? _______ 4) At the beginning of the third bargaining round, there are 138 points on your group account. You have been assigned to role A and you proposed 50% of the group account for yourself and 50% for the other group member. This member demanded (in role B) at least 60% for herself. Therefore, bargaining fails and a new bargaining round starts. a. How many points are on the group account at the beginning of the fourth bargaining round? _____________________ Learning and Peer Effects Gerald Eisenkopf Research Paper Series Thurgau Institute of Economics No. 21 september 2007 Text2: Konstanzer Online-Publikations-System (KOPS) URN: http://nbn-resolving.de/urn:nbn:de:bsz:352-opus-124339 URL: http://kops.ub.uni-konstanz.de/volltexte/2010/12433/ 
work_4krgqgyxoffsfose3aa2dquvpm	----	Shinner.qxd Justice & Racial Conciliation: Two Visions The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Shelby, Tommie. 2011. “Justice & Racial Conciliation: Two Visions.” Daedalus 140 (1) (January): 95–107. doi:10.1162/daed_a_00062. Published Version 10.1162/daed_a_00062 Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:34253788 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA http://osc.hul.harvard.edu/dash/open-access-feedback?handle=&title=Justice%20&%20Racial%20Conciliation:%20Two%20Visions&community=1/1&collection=1/2&owningCollection1/2&harvardAuthors=2a066245c72b7141f10068d1e6714474&departmentAfrican%20and%20African%20American%20Studies http://nrs.harvard.edu/urn-3:HUL.InstRepos:34253788 http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAA http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAA http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAA Justice & Racial Conciliation: Two Visions Tommie Shelby © 2011 by the American Academy of Arts & Sciences TOMMIESHELBY is Professor of African and African American Studies and Professor of Philos- ophy at Harvard University. His recent publications include We Who Are Dark: The Philosophical Foundations of Black Solidarity (2005) and “Justice, Deviance, and the Dark Ghetto,” Philosophy & Public Affairs (2007). He is also the coeditor of the magazine Transition. Many Americans, from all racial backgrounds, are rightly proud that their nation has elected its ½rst black president.1 In a society long weary of its race problem, such a momentous event has led some to assert that we have, de½nitively, realized Martin Luther King, Jr.’s dream. King, though still reviled in some quarters, is widely regarded as one of the founders of our new post-segrega- tion republic. His interpretation of the American dream is a touchstone for measuring racial prog- ress in the post–civil rights era. It is therefore an appropriate time to revisit Dr. King’s vision for race relations in U.S. society. Indeed, Obama is frequently compared to King. Some of the comparisons flatter the president; others do not. However, I will not weigh side by side the personal character or practical achieve- ments of the two men. Clearly, both leaders are highly educated and charismatic; both have a gift for oratory and the ability to inspire; and both have made indelible marks on U.S. history. But because of differences in their respective voca- tions–mass movement leader and minister, on the one hand; Democratic Party politician and elected of½cial, on the other–and because Obama is operating within a very different historical con- text than did King, any such comparison is likely to be misleading and unfair. Yet we can reflect on, and learn from, these ½gures’ respective visions for American race relations. With this purpose in mind, I focus on ideas, on the philosophy that Dædalus Winter 2011 95 should underpin political practice. My primary concern is the mounting influ- ence of a particular vision of race in the United States, one that I believe deserves more skepticism, or at least much less enthusiasm, than it is currently receiving. Any vision for race relations in Ameri- ca should ½rst be rooted in an honest and historically informed assessment of exist- ing racial realities. Second, it should out- line basic ideals, the intermediate and ul- timate goals for which we ought to strive. Finally, the vision should specify the means by which we are to realize its stat- ed ideals given prevailing racial realities. I am not interested in utopian fantasies but in realistic ideas. Though they often speak of their “dreams” and “hopes,” King and Obama are both practical think- ers. Their writings and speeches on race explain where we are (including how we got here), where we should be going, and how we can get there. Their visions have much in common. But Obama’s vision, politically shrewd and pragmatic though it may be, is marred by its defective mor- al content. Comparing his vision with King’s reveals this de½ciency. In his famous “I Have a Dream” speech (1963), King described the racial realities of his day.2 He emphasized that although slavery in the United States had ended one hundred years before, black Ameri- cans were still not free. Life chances for blacks were severely diminished, “crip- pled” by racial segregation and wide- spread discrimination. Blacks were most- ly poor despite living in a society with tremendous wealth. A great many were socially marginalized and isolated in slums. Blacks did not have equal citizen- ship because they were denied the rights to vote and hold public of½ce. They were victims of police brutality and vicious acts of domestic terrorism. Under con- stant assault by racist ideology, blacks struggled to maintain self-respect and self-esteem. The Civil Rights Act (1964) and the Voting Rights Act (1965) helped to break through the legal barriers to black inclu- sion in American social life, to curb dis- crimination, and to empower blacks po- litically. King thus proclaimed in Where Do We Go from Here? (1967) that many whites had come to accept racial equali- ty, at least in principle, and to reject de jure segregation and discrimination. Nev- ertheless, troubling racial disparities–in income, education, wealth, employment, health, and poverty–caused by continu- ing discrimination and centuries of gross mistreatment and abuse, remained un- addressed. He argued that racist opposi- tion was not the only reason these dis- parities had yet to be met with an ade- quate response. An equally if not more dif½cult obstacle was that most whites, even many who rejected racism, resisted racial justice measures that might have a personal cost. As King wrote, “The great majority of Americans . . . are uneasy with injustice but unwilling yet to pay a signif- icant price to eradicate it.”3 In response to this resistance, King reminded us that meaningful attempts to bring about a just society have unavoidable costs. Quality education for all children, decent and well-paying jobs for adults, and the erad- ication of slums for the bene½t of the poor require great resources. King was committed to the fundamen- tal ideals of racial equality and integra- tion. He understood the former as a de- mand of social justice that could be de- scribed in terms of two principles. First, each citizen, regardless of his or her race, should enjoy equal civic standing and the equal protection of the law. Justice does not permit second-class citizenship on the basis of race. Second, government should ensure that no one’s basic rights are curtailed or general life prospects 96 Dædalus Winter 2011 Justice & Racial Conciliation reduced because of the racial prejudice of others. It is not enough that the state refrain from treating some citizens as if they were civic inferiors unworthy of equal concern and respect. Private indi- viduals and associations must be made to follow suit, at least when individuals’ basic liberties or vital socioeconomic opportunities are at issue. Moving toward racial equality required a concrete policy of desegregation. The primary goal of desegregation was to abolish the unfair exclusions and prohi- bitions of Jim Crow, a social system that gave whites privileges and advantages they did not merit, deprived blacks of rights and opportunities they deserved, and generally stigmatized black people as inferior. To end discrimination in housing, education, employment, and lending, nondiscrimination laws needed to be enacted and scrupulously enforced. In the political sphere, achieving racial equality meant granting blacks the un- fettered right to vote and hold political of½ce. The civil rights movement, through lit- igation and persistent pressure on Con- gress and several presidents, abolished a hideous and terrifying race-based regime. Previously, the subordination of blacks was the law of the land in the South, and discrimination against blacks was wide- spread throughout the country. Many, then and now, see this tremendous vic- tory as the end of the struggle for racial equality. King did not share this view. He recognized that the many decades of slavery and Jim Crow had severely disad- vantaged blacks (especially in education, employment, wealth, and housing) and had injured their self-respect and psycho- logical well-being. Even if the new civil rights laws were impartially and effective- ly enforced, the damage inflicted by the long reign of white supremacy would remain. Repairing it was an urgent issue of racial justice. Certainly, in a market society, where competition determines most people’s life prospects, “the pursuit of happiness” as an equal right of all citi- zens would not be guaranteed until blacks were no longer handicapped by the lega- cy of white domination. According to King, justice, in its most basic sense, means giving persons what they are due. Ful½lling this demand often means treating everyone the same. But sometimes it calls for treating people differently. This point has particular rele- vance with regard to serious injustices, whereby a certain class of persons has suffered mistreatment and is disadvan- taged as a result. As King says in Why We Can’t Wait (1963), “[O]ur society has been doing something special against the Negro for hundreds of years. How then can he be absorbed into the mainstream of American life if we do not do some- thing special for him now, in order to balance the equation and equip him to compete on a just and equal basis?”4 Many people–perhaps relying on the familiar line about being judged by the content of one’s character rather than by one’s skin color–wrongly believe that King rejected reparations and all other race-targeted, compensatory mea- sures for black Americans. In fact, he supported such recompense: Few people consider the fact that, in addition to being enslaved for two cen- turies, the Negro was, during all those years, robbed of the wages of his toil. No amount of gold could provide an adequate compensation for the exploi- tation and humiliation of the Negro in America down through the centuries. Not all the wealth of this affluent soci- ety could meet the bill. Yet a price can be placed on unpaid wages. The ancient common law has always provided a rem- edy for the appropriation of the labor of Dædalus Winter 2011 97 Tommie Shelby one human being by another. This law should be made to apply for American Negroes. The payment should be in the form of a massive program by the gov- ernment of special, compensatory mea- sures which could be regarded as a set- tlement in accordance with the accept- ed practice of common law.5 In addition to the ideal of racial equal- ity, King advocated integration. From a political perspective, integration is linked to the requirements of justice. Certainly, blacks and other racial minorities should not be formally excluded from participat- ing in the social, economic, and political life of the nation. But these previously excluded groups should also be actively included as equal and indispensable participants. Such inclusion should not amount to tokenism, in which a small non-white elite is created, integrated, and made to represent symbolically the “progress” of their respective groups, leaving most in those factions still social- ly marginalized and politically power- less. Justice requires that whites fully share power and decision-making with non-whites, erasing all signs of white domination. The members of different racial groups must ultimately recognize their mutual dependence and equal sta- tus; they must solve their problems to- gether. Integration, in this sense, is the realization of the republican ideal of collective self-determination in a multi- racial society. King was also intensely concerned with the ethical side of integration. In “The Ethical Demands for Integration” (1962), he explained that our goal should not be mere desegregation and nondiscrimina- tion.6 Rather, we must aim to build a so- ciety in which the members of different races have a sense of goodwill toward one another and think of themselves as col- lectively constituting one people. We should not be content with interracial détente; we should strive for interracial civic friendship–that is, fraternity in a multiracial society of equals. This unity should be founded on mutual respect and understanding. King evokes the ethi- cal dimension of integration in his mem- orable line, “I have a dream that one day on the hills of Georgia, sons of former slaves and sons of former slave-owners will be able to sit down together at the table of brotherhood.”7 The goal of mere desegregation is de- ½cient in part because it suggests that we should be satis½ed if nondiscrimina- tion laws are obeyed out of prudence (to avoid legal sanctions, for example) or out of general respect for the law. For King, it was crucial that we obey these laws not simply because we fear punish- ment or recognize the authority of law, but because such laws are morally right: because they embody the worthy ideal of integration. Racial equality and political integration, King insisted, were pressing matters of justice and thus enforceable through law. On the other hand, he did not believe that the ethical ideal of interracial unity could be enforced. Implementing legisla- tion, along with its steadfast enforcement, is de½nitely essential to regulating the behavior of those who refuse to respect the demands of justice. Furthermore, a racially just polity is a necessary con- dition for genuine interracial fraterni- ty. However, trust, respect, and mutual concern cannot be achieved through law enforcement. A complete resolution of the race problem in America therefore requires that each individual willingly commits to integration. To achieve his stated ends, King sup- ported militant mass protest. He believed in uncompromising dissent from and active agitation against racial injustice. This resistance should take the form of 98 Dædalus Winter 2011 Justice & Racial Conciliation organized boycotts, civil disobedience, and public demonstrations. These tactics sought to highlight egregious wrongs and expose hypocrisy, to awaken and motivate the morally complacent majority, and to put economic and political pressure on those with the power to change condi- tions. King is part of a long and venera- ble tradition of freedom ½ghters who fervently believe that injustices are never corrected without the determination and hard work of individuals openly ½ghting together for what is right. King held central the precept that in the struggle to achieve racial equality and in- tegration, we must use means that are as pure as the ends we seek. The principle “by any means necessary” was not to his mind a morally permissible stance, even for a severely oppressed people. More- over, he was convinced that morally sus- pect measures could never realize our ideals; the ethical means available were suf½cient. King further cautioned against destroying our chances of reaching our ultimate goals by using means designed to secure short-term or intermediate ends. For these reasons, King believed that the ½ght for racial justice and integration must be nonviolent. He frequently ad- monished blacks to reject political vio- lence and not to succumb to hatred and blanket mistrust of whites. To be sure, violent resistance would be ineffective: blacks lacked the resources and tactical means to win a confrontation with white racists; black aggression would give white supremacists an excuse to slaughter blacks not in the movement, thus undermining black communal support; and violence would alienate needed white allies and obscure the moral issues the struggle meant to highlight. King also objected to political violence on moral principle. Such tactics were simply wrong, regard- less of whether they could secure con- cessions from those in power. Even if political violence could achieve some intermediate goals–such as curbing po- lice brutality and discouraging white ter- rorism–it would undermine the ultimate goal of interracial fraternity. King also rejected black separatism, not only as an ideal but as a means to black liberation. Undertaking the struggle for racial equality and integration demand- ed interracial cooperation. Beyond the pragmatic point that blacks could not succeed alone, King objected to racial separatism on moral grounds. Not all whites are untrustworthy or malicious, he contended, and blacks should not treat them as if they were. To reject white par- ticipants in the movement would dishon- or those whites who made great sacri½ces –including the ultimate sacri½ce–in the pursuit of racial justice. Moreover, inter- racial fraternity will arrive only after the various racial groups in America recog- nize that they have a “common destiny”: to live together as one people. Such mu- tual understanding and respect between the races can come about only through frequent contact and cooperation. In Where Do We Go from Here? King makes this point forcefully and eloquently: “Since we [black people] are Americans the solution to our problem will not come through seeking to build a separate black nation within a nation, but by ½nding that creative minority of the concerned from the oft-times apathetic majority, and together moving toward that color- less power that we all need for security and justice.”8 In his books and speeches (especially those focused on race), Obama frequently invokes, explicitly and implicitly, King’s dream for America.9 He endorses King’s ideals of racial equality and integration, regarding an end to discrimination and prejudice, the elimination of racial dis- parities, and interracial unity as ultimate Dædalus Winter 2011 99 Tommie Shelby goals. Though many of his supporters– and detractors, for that matter–view his ascent to the presidency as con½rmation that the bounced check King lamented has ½nally been cashed, and that we now live in a “post-racial” society, Obama has consistently cautioned against this inter- pretation of current racial realities. In The Audacity of Hope (2006), for example, he writes, “[T]o say that we are one peo- ple is not to suggest that race no longer matters–that the ½ght for equality has been won, or that the problems that mi- norities face in this country today are largely self-inflicted.”10 In “A More Perfect Union” (2008), the famous speech Obama delivered in Phil- adelphia (“the city of brotherly love”), he forthrightly stated that, while we have made undeniable progress, the problem of race has not been solved.11 Existing racial disparities–in education, wealth, and income–are, he claims, in part the debilitating consequences of slavery and Jim Crow. Pervasive discrimination in the past–in housing, employment, and lending–explains the current racial dis- parities in wealth and income. The fact that blacks were prevented from amass- ing assets they might pass on to their children largely accounts for urban and rural poverty. As he observed in his re- marks at the 2009 naacp Centennial Convention, the highest barriers to ra- cial equality today are the structural in- equalities that are the legacy of racial injustice in the United States.12 Indeed, while Obama often empha- sizes how the injustices of the past still shape our present, he also highlights current racial injustices. In The Audacity of Hope, he explains how degrading ra- cial stereotypes and unconscious bias lead to discrimination in employment and law enforcement. In his controver- sial statements about the arrest of Pro- fessor Henry Louis Gates, Jr.–remarks that, in his haste to quell the controver- sy, he did not retract–Obama made it clear that he believes racial pro½ling of blacks and Latinos remains a serious problem. He has publicly registered his opposition to a recent immigration law, passed in Arizona in April 2010, on the grounds that it will invite racial pro½l- ing and harassment of Latinos. In his Philadelphia speech on race, he called the racial achievement gap a result of the segregated and inferior public schools that serve minorities. Black families are often weak or broken not just because of irresponsible fathers, but because black men have been denied equal economic opportunity. He claimed that a lack of basic public services in poor black neigh- borhoods (effective law enforcement, parks, regular garbage pick-up, and building-code enforcement, for exam- ple) has fostered urban violence and blight. Though some blacks, he noted, have heroically triumphed over many obstacles to succeed (sometimes aided by af½rmative action policies), others have been unable to defeat these unfair odds. Instead, they often dwell in our deteriorated urban centers or languish in our prisons without hope or prospects. What is to be done? As Obama said on the one hundredth anniversary of the establishment of the oldest civil rights organization in America, “[T]he ½rst thing we need to do is make real the words of the naacp charter and eradicate prej- udice, bigotry, and discrimination among citizens of the United States.” He has also consistently made clear the need to vig- orously enforce nondiscrimination and civil rights laws. In other words, a per- son’s ability to acquire a stable and well- paying job, decent and affordable hous- ing, credit at fair interest rates, or quality education should not be hampered by the racial prejudice and bias of others. Moreover, it is the responsibility of gov- 100 Dædalus Winter 2011 Justice & Racial Conciliation ernment to ensure that this principle is realized; market forces are not suf½cient. Obama also believes that we must guar- antee fairness and impartiality in our criminal justice system. Due process is a basic civil right, and racism, whether conscious or not, must not be allowed to abridge this fundamental liberty. How are we to respond to the racial disparities and inherited disadvantages caused by historical injustices? Obama does not support reparations for the descendants of slaves or the victims of the segregation regime, though he con- cedes that af½rmative action in higher education can be a useful, if limited, tool to expand opportunity for under- represented racial minorities. Instead, he favors universal programs that aim to help all who are disadvantaged, regard- less of race, over policies that aim to compensate or aid speci½c racial groups. Because racial minorities are dispropor- tionately disadvantaged, he reasons, they will reap a large share of the bene½ts of such policies. In The Audacity of Hope, Obama offers two reasons to explain why an emphasis on universal programs over race-speci½c ones makes good political sense. The ½rst is that white guilt has run out. White Americans now resent blacks’ continu- ing grievances and sense of victimhood. Thus, they do not support policies that grant the legitimacy of black claims of injustice. Second, whites perceive that spending our limited public resources on further attempts to create racial equality or end ghetto poverty runs contrary to their self-interest. Such efforts not only mean higher taxes; they mean fewer pub- lic resources to aid whites. Obama con- cludes that policies to help all in need– which would, in theory, disproportion- ately aid racial minorities–should be favored in the current context. He be- lieves universal policies will more likely garner multiracial support, including white support. Like King, Obama is convinced that we cannot establish a just society without interracial cooper- ation. Thus, we must chart a course to bridge the racial divide and foster ra- cial conciliation. But there are further obstacles to the realization of this vision, and Obama is keenly aware of them. In “A More Per- fect Union,” he explained that as a result of our history of racism and the pain it has caused, many blacks remain angry– at times, bitter. Though sometimes jus- ti½ed, anger can be counterproductive. Not only can it blind blacks to their re- sponsibility to improve their own con- dition, but it can prevent the formation of interracial alliances essential for real social change. Obama noted that some working- and middle-class whites are angry, too. They do not believe they are privileged by their race; they believe they have earned everything they have. They were not the ones who committed the injustices against blacks and thus feel no obligation to correct historical wrongs. Besides, they face serious economic chal- lenges of their own, challenges that threat- en their hopes and dreams. They resent when desegregation efforts mean their children are bused to schools outside their neighborhoods; when af½rmative action allows racial minorities to gain ad- vantages in employment and education; and when they are accused of racism for expressing fears about black crime. As with black anger, Obama insists that white resentment toward racial minori- ties is often counterproductive. It dis- tracts, he said, from the “real culprits” behind the economic insecurity that all working- and middle-class people expe- rience: namely, a corporate culture of greed, a government that answers to cor- porate interests but is unresponsive to the needs of ordinary citizens, and eco- Dædalus Winter 2011 101 Tommie Shelby nomic policies that favor the wealthy. At times, Obama seems committed to an underlying social theory that considers it counterproductive to challenge whites directly for clinging to racist ideologies. These ideologies, so the theory goes, are ultimately rooted in a widespread sense of economic insecurity and political pow- erlessness among whites. It is better to attack the roots of the problem–corpo- rate dominance over our lives and our democracy–without condemning whites for harboring racist attitudes and accept- ing racial stereotypes. If, through inter- racial cooperation and collective resolve, we ½x these underlying problems, then this kind of racism should, more or less, take care of itself. In the meantime, we shore up enforcement of nondiscrimina- tion laws so that blacks and Latinos are protected from the most serious conse- quences of white racism. Obama thinks we can, or at least should, set aside old racial divisions and work together to achieve common goals. For blacks, such cooperation is not possible without equal citizenship and just treat- ment in all dimensions of American life. But blacks should not insist that their particular grievances be addressed inde- pendently of measures designed to en- sure justice and opportunity for all. There are non-blacks, including whites, who also need government to protect them and provide economic opportunity. He calls on the white community to acknowl- edge that black disadvantage is caused in part by discrimination, past and present. Nonetheless, he thinks we should address these inequities not through race-speci½c policies but through enforcement of non- discrimination laws and universal poli- cies that create more opportunity for all. The famous Philadelphia speech on race ends with an anecdote about two campaign workers, one white and one black, a story Obama says he ½rst told on King’s birthday at Ebenezer Baptist Church, where both King and his father had served as pastor. The lessons we are to take from the story are, I believe, these: whites who lack economic security should not blame blacks and Latinos but, rather, should seek them out as allies against the injustices caused by corporate greed, cor- rupt political leadership, and the super- wealthy who want to keep all bene½ts of economic growth for themselves and their progeny; blacks and Latinos, in turn, should not allow their racial griev- ances and sense of victimhood to prevent them from forming productive alliances with whites who have similar problems. Obama’s fundamental goals of racial equality and integration are worthy. Moreover, his assessment of current ra- cial realities and their historical roots is, I believe, accurate. However, I am trou- bled by his proposed way forward. I see four related problems, all of which stem from Obama’s failure to heed King’s pre- cept: to use means as pure as our ends. First, Obama asks blacks to shoulder too much of the burden of racial conciliation and demands too little of whites. Indeed, in the name of interracial unity, his ap- proach would actually reward white re- sistance to racial-justice measures. Sec- ond, Obama’s vision would require that we use morally suspect tactics, includ- ing compromising with, and remaining silent in the face of, injustice and racial prejudice. Third, setting aside their ques- tionable moral standing, the means Obama advocates are not aligned with his stated ends of racial equality and in- terracial fraternity, appearances notwith- standing. Finally, his strategy, though perhaps it would secure some interme- diate and worthwhile goals, might in- hibit our ability to reach the ultimate objectives of racial justice and inter- racial comity. 102 Dædalus Winter 2011 Justice & Racial Conciliation Obama has consistently stated that both current discrimination and the leg- acy of past discrimination help explain existing racial inequalities and black dis- advantage, and he believes these injus- tices have not been adequately addressed. If this interpretation is correct, then blacks’ sense of grievance–their continu- ing anger–is warranted. Of course, when this anger becomes rage and thus leads to cathartic violence or irrational hatred of all whites, which it sometimes has, it is not just counterproductive but abhor- rent. It is not hard to see why whites would be put off by such anger, especially those with a demonstrated commitment to racial justice. But when properly tar- geted and proportionate to the wrong that has elicited it, anger can be politi- cally constructive and a healthy sign of self-respect. It can open one’s eyes to similar injustices suffered by others; it can inspire one to take action; and, when understood to be widely shared, it can lead to collective mobilization. Indeed, a lack of anger among persons unfairly treated and burdened by injustice would be disquieting, suggesting that the afflict- ed had either given up hope or lacked self-respect, that they had succumbed to cynicism or surrendered to injustice, and that they had ceased to put up a ½ght. Jus- ti½ed indignation should not alienate whites. And if whites respond to this kind of anger with resentment toward racial minorities, dismissing their just claims for redress as a desire for handouts or excuses for their own failings, then the darker races should be angry about this reaction, too, and deeply suspicious. I suspect that some of the opposition to racial justice measures runs deeper than the desire of economically vulnera- ble whites not to lose further ground in an economy that no longer satisfactorily rewards their hard work. It also springs from their desire to keep racial minori- ties in a subordinate or disadvantaged position in relation to whites as a group. Though they are reluctant to admit it publicly (and maybe even to themselves), some whites seem determined to hold on to their comparative advantages; they view policies that promote the cause of racial justice as threats to white domi- nance.13 On grounds of self-respect, blacks should not seek a political solu- tion to the problem of racial inequal- ity that compromises with or yields ground to this sentiment. This attitude must not be accommodated, worked around, or ignored. In both “A More Perfect Union” and The Audacity of Hope, Obama rightly points out that Republican politicians and right-wing demagogues have long exploited white anger over welfare and af½rmative action and white fear of black crime. Where he falters is in failing to hold accountable working-class whites who scapegoat blacks and Latinos for problems caused by corporate and polit- ical elites. He might believe such scape- goating is racist; calling it racist, however, might seem unwise or divisive. Perhaps he is simply counseling disadvantaged racial minorities to swallow their anger, bite their tongues, and console them- selves with the thought that economic causes underlie resentment toward non- whites. He wants racial minorities to recognize what they share with low- to moderate-income whites: a common interest in altering these damaging economic forces. However, it is unreasonable and im- practical to expect racial minorities sim- ply to overlook or excuse such racist atti- tudes. How can they regard reactionary whites as allies if these whites will not confront their own racism? How can peo- ple of color work together with whites who believe that blacks and Latinos have caused the economic problems that the Dædalus Winter 2011 103 Tommie Shelby p p p p p white working class faces? Whites who scapegoat darker peoples do not yet see who the common enemy is; therefore, they cannot be relied on as allies in the ½ght against that enemy. In this way, Obama’s compromise with white racial resentment cannot achieve his stated aim of interracial unity. But let us suppose that this kind of rac- ism is a minor problem, one that can be adequately contained with vigorous en- forcement of civil rights laws. The real problem, Obama might argue, is that many whites believe that policies aimed at correcting racial injustices are contrary to their economic self-interest. They har- bor no ill will toward racial minorities; nor are they attracted to white national- ist ideas. They simply do not want to pay the costs associated with ½ghting or cor- recting racial injustice. As King emphasized, we cannot possi- bly realize our ultimate ideals if we allow this stance to reign unchallenged. We all must accept that justice, including the correction of injustice, comes at a cost– though one well worth paying. Any effort to respond effectively to racial injustice will inevitably cost whites something. Indeed, it will cost many racial minori- ties as well. For example, given residen- tial segregation patterns, there is no way to abolish de facto segregated schools without either integrating neighborhoods or busing some students to schools out- side their neighborhoods. Why should all the kids who are bused be racial mi- norities? Though it would mean aban- doning King’s ethical ideal of integration, we could try to improve urban public schools without regard to their racial makeup, but that would take a lot of resources, which means higher taxes, including higher taxes for whites. Many whites dislike af½rmative action policies because such measures offend their sense of fairness.14 But if we aban- don that set of policies (which some states already have), then any serious effort to deal with black educational and employment disadvantages will require us to devote more resources to the task, which again means higher taxes, including higher taxes for whites. These costs cannot be escaped–at least not if we intend to take racial justice seriously. One response, not without merit, is to insist that the wealthy should bear these ½nancial burdens; those who are themselves struggling economically should not. This tactic would mean col- lectively pushing for a more progressive tax scheme and higher estate taxes. But many middle-class and working-class whites do not favor this approach either; presumably, they doubt they would bene- ½t from such efforts–though some might say it has more to do with their legitimate opposition to “big government.” Obama’s response to this political reality is to combat the legacy of racial injustice by advocating universal mea- sures that aim to help the members of all racial groups, including whites. The idea is that if whites will bene½t, and the pol- icies are not explicitly tailored to aid or appease “angry” racial minorities, we can gain greater support for progressive goals. But even with backing from a number of whites, this strategy would intentionally obscure the morally impor- tant difference between creating more opportunity for all and remedying the effects of past racial injustices. From a moral point of view, these are not the same goals, even though they are com- patible and might both be furthered by the same policy. Obama advocates uni- versal policies that he believes would, as a by-product, reduce glaring racial dis- parities. But he purposefully refrains from construing these policies as racial redress. Therefore, whites are not re- quired to concede the legitimacy of 104 Dædalus Winter 2011 Justice & Racial Conciliation blacks’ grievances. To establish genuine racial conciliation, though, whites must willingly support policies that reduce racial inequality because doing so is what racial justice demands. Some would reply that if universal pol- icies will reduce racial disparities and im- prove the lives of minorities, there is no good reason to insist that race-speci½c policies be used instead. But the question is not which policies will most effectively reduce racial inequality; rather, it is why race-targeted policies are off the table. There is nothing intrinsically wrong with policies designed to help speci½c groups of people rather than everyone. From the standpoint of justice, we should not have to conceal the intent behind the im- plementation of such policies. Sometimes speci½c classes of persons (women, dis- abled persons, immigrants, rural resi- dents, victims of natural disasters, and so on) have needs that require specially tailored remedies. Indeed, so-called uni- versal policies are not really universal since they are not meant to help every- one, just those who have been socioeco- nomically disadvantaged by recent gov- ernment action and changes in the struc- ture of the economy. It is at least possible that the black urban poor is another group in need of special intervention. Again, it seems that the only reason to preemptively rule out such remedies is that they would arouse the unjusti½ed hostility of many whites. Nor is the issue whether speci½c poli- cies should be unmistakably labeled “for poor black people” or “to reduce racial disparities.” Policies designed to help all those who are unfairly disadvantaged, regardless of race, are also justi½ed and, given the overlapping interests involved, no doubt easier to enact. In our determi- nation to heal black wounds, we must not ignore the fact that others are suffer- ing, too. As King reminds us: “As we [black people] work to get rid of the eco- nomic strangulation that we face as a re- sult of poverty, we must not overlook the fact that millions of Puerto Ricans, Mex- ican Americans, Indians and Appalachian whites are also poverty-stricken. Any se- rious war against poverty must of neces- sity include them.”15 Rather, the issue is whether we can openly defend a policy on the grounds that it is, at least in part, a response to racial injustice and still garner wide support for it. If we cannot gener- ate such support, especially among whites, what does such an outcome say about the state of race relations and the possi- bility for further racial progress in this society? If we have good reason to sus- pect that a signi½cant number of whites seek to hold on to their advantages– despite the fact that some of these have been gained because of a history of racial injustice –or, worse, that a signi½cant number of whites want to keep racial minorities trapped in an inferior social position, then people of color have reason to re- sent this lack of support and to withhold solidarity from those who would deny them what they are due. Moreover, we should not have to pay off–in essence, to bribe–the white ma- jority in order to secure justice for racial minorities. Already, many whites refuse to accept the costs associated with achiev- ing racial justice. Now, in order to reduce racial inequalities caused by nearly four centuries of injustice, we must adopt only those measures that provide whites with material bene½ts? The moral perversity of this approach should be readily appar- ent. Blacks ought to demand that their fellow citizens not only acknowledge that black disadvantages are caused, at least in part, by past and ongoing injustices– a position that Obama himself articu- lates–but they should also continue to insist that their fellow citizens demon- strate a commitment to remedying these Dædalus Winter 2011 105 Tommie Shelby disadvantages, even if the necessary remedies do not bene½t these citizens directly. This admittedly dif½cult route is the only path to true racial concilia- tion. There is no bypass. If, despite his lofty rhetoric, Obama’s vision is less about achieving racial jus- tice and interracial fraternity than sim- ply making disadvantaged racial minor- ities somewhat better-off materially– using whatever means, morally tainted or not, that are available–his vision has obvious merit. It offers a pragmatic strat- egy for navigating hazardous racial waters in a way that could improve the socioeco- nomic circumstances of disadvantaged racial groups. If this political maneuver works, numerous people, including many members of racial minority groups, will receive much-needed help. However, if Obama’s racial philosophy is to be understood as an updated version of King’s vision–a recalibration to ½t the racial realities of our time–then it leaves much to be desired. Judged along- side King’s transformative vision of ra- cial equality and integration, Obama’s philosophy is morally de½cient and un- inspiring. Relying as it does on dissimu- lation and subtle bribes, it does not keep faith with King’s precept: to use means as pure as our ends. Obama’s vision would ask racial minorities to give up on true racial equality and to form bonds of solidarity with whites who refuse to rec- ognize blacks’ legitimate demands for redress. It fails to insist that whites carry their fair share of the burden to end ra- cial inequality. And it tries, futilely, to build interracial fraternity on the basis of overlapping material interests rather than on a shared commitment to justice. Perhaps we should not expect Obama to be a moral leader on issues of race. After all, he is a black elected of½cial who largely depends on other elected of½cials to enact domestic policy. He is therefore constrained by a sometimes re- calcitrant and racially divided populace. It is no doubt dif½cult to insist that one’s fellow citizens rise above their unjusti½ed anger, prejudices, and sel½shness if, to get their votes and campaign donations, one must remain silent in the face of, or even reward, these very attitudes. That Obama has not openly defended the need to reduce racial inequality and ghetto poverty on grounds of justice but has instead relied on stealth methods and “universal” policies is revealing. It shows that he believes he must accommodate race-based hostility and illegitimate white group interests to make modest improvements in the lives of disadvan- taged racial minorities. Regrettable and distasteful as it is, perhaps this is the price that must be paid to protect the weak and vulnerable from grave harm. But such actions should be seen for what they are: moral compromises necessi- tated by the imperative to meet urgent needs. They should not be cast or inter- preted as recti½cations of racial injus- tice or stepping-stones to interracial fraternity. 106 Dædalus Winter 2011 Justice & Racial Conciliation endnotes 1 For helpful feedback on earlier drafts, I thank Lawrence Blum, Gerald Early, Andrew Fine, Lani Guinier, Randall Kennedy, Lionel McPherson, and Jessie Scanlon. 2 Martin Luther King, Jr., “I Have a Dream,” in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr., ed. James M. Washington (New York: Harper- Collins, 1991), 217–220. Dædalus Winter 2011 107 Tommie Shelby 3 Martin Luther King, Jr., Where Do We Go from Here: Chaos or Community? (Boston: Beacon Press, 1968), 11. 4 Martin Luther King, Jr., Why We Can’t Wait (New York: Signet Classic, 2000), 124; emphasis in the original. 5 Ibid., 127–128. 6 Martin Luther King, Jr., “The Ethical Demands for Integration,” in A Testament of Hope, ed. Washington, 117–125. 7 King, “I Have a Dream,” in A Testament of Hope, ed. Washington, 219. 8 King, Where Do We Go from Here, 54. 9 I should clarify my interpretive method used in analyzing Obama’s vision. It is general- ly understood that in order to be elected and stay in of½ce, politicians often use deceit; sometimes they lie. For the purposes of this essay, I take Obama’s considered public statements at face value. I assess the vision itself, a vision that many, including many racial minorities, support or ½nd attractive. I make no claims about whether the vision is offered in good faith, about the authenticity of Obama himself, or about the extent to which his actual policy choices and political tactics square with his stated vision. 10 Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Crown, 2006), 232. 11 The speech, both in transcript and video form, can be found at http://www .barackobama.com/speeches/. 12 An of½cial transcript of the speech can be found at http://www.whitehouse.gov/ the_press_of½ce/Remarks-by-the-President-to-the-naacp-Centennial-Convention -07/16/2009/. 13 This claim is not uncontroversial, but it does have substantial empirical support. See Donald R. Kinder and Lynn M. Sanders, Divided By Color: Racial Politics and Democratic Ideals (Chicago: University of Chicago Press, 1996); Jim Sidanius and Felicia Pratto, Social Dominance: An Intergroup Theory of Social Hierarchy and Oppression (Cambridge: Cambridge University Press, 1999); David O. Sears, Jim Sidanius, and Lawrence D. Bobo, eds., Racialized Politics: The Debate about Racism in America (Chicago: University of Chicago Press, 2000); Lawrence D. Bobo and Mia Tuan, Prejudice in Politics: Group Position, Public Opinion, and the Wisconsin Treaty Rights Dispute (Cambridge, Mass.: Harvard University Press, 2006). 14 The case that af½rmative action is not unfair is forcefully made in Bernard R. Boxill, Blacks and Social Justice, rev. ed. (Lanham, Md.: Rowman & Little½eld, 1992), chap. 7; and Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000), chaps. 11–12. 15 King, Where Do We Go from Here, 132. 
work_4o3w6wkocvgzfpwkgtuatvdifu	----	Microsoft Word - Explaining Prolonged Silences in TJ FINAL Manuscript.docx                City, University of London Institutional Repository Citation: Kovras, I. (2013). Explaining Prolonged Silences in Transitional Justice: The Disappeared in Cyprus and Spain. Comparative Political Studies, 46(6), pp. 730-756. doi: 10.1177/0010414012463879 This is the accepted version of the paper. This version of the publication may differ from the final published version. Permanent repository link: http://openaccess.city.ac.uk/13106/ Link to published version: http://dx.doi.org/10.1177/0010414012463879 Copyright and reuse: City Research Online aims to make research outputs of City, University of London available to a wider audience. Copyright and Moral Rights remain with the author(s) and/or copyright holders. URLs from City Research Online may be freely distributed and linked to. City Research Online: http://openaccess.city.ac.uk/ publications@city.ac.uk City Research Online http://openaccess.city.ac.uk/ mailto:publications@city.ac.uk 1     Explaining Prolonged Silences in Transitional Justice: the disappeared in Cyprus and Spain Iosif Kovras Comparative Political Studies, 46(6), 730-756. Abstract The article examines why some post-conflict societies defer the recovery of those who forcibly disappeared as a result of political violence, even after a fully-fledged democratic regime is consolidated. The prolonged silences in Cyprus and Spain contradict the experience of other countries such as Bosnia, Guatemala and South Africa, where truth recovery for disappeared/missing persons was a central element of the transition to peace and democracy. Exhumations of mass graves containing the victims from the two periods of violence in Cyprus (1963-1974) and the Spanish civil war (1936-1939) was delayed up until the early 2000s. Cyprus and Spain are well suited to explain both prolonged silences in transitional justice and the puzzling decision to become belated truth seekers. The article shows that in negotiated transitions, a subtle elite agreement links the non-instrumental use of the past with the imminent needs for political stability and nascent democratization. As time passes, selective silence becomes an entrenched feature of the political discourse and democratic institutions, acquiring a hegemonic status and prolonging the silencing of violence. Keywords: Transitional Justice; Cyprus Conflict; Spain; Enforced Disappearances; Negotiated Transitions; Post-Transitional Justice; Politics of Memory Introduction Although Federico García Lorca is a famous desaparecido (disappeared) of the Spanish civil war, he and approximately 30,000 ‘forgotten’ Republican victims are still lying in mass graves.1 Lorca’s fate epitomizes a central debate in contemporary Spanish society: should the country ‘unearth’ the truth about the civil war (and search for the bodies of the disappeared) or is it better to continue to ‘silence’ the divisive past? Spain is not the only Mediterranean country dealing with the past. During the two waves of violence in Cyprus, namely, the inter-communal violence (1963-1974) and the subsequent Turkish invasion (1974), approximately 2,000 Greek-Cypriots and 2     Turkish-Cypriots went missing. Disappearances were political acts deployed by both communities to cleanse the island of the presence of the ethnic ‘Other’ an effort to fulfil official political objectives. Until quite recently, there has been little effort to recover the bodies – or the truth. Since the 1970s, the phenomenon of enforced disappearances and the ensuing demand by relatives to acknowledge the truth have shaped the development of transitional justice2 in societies emerging from conflict or authoritarianism. The unprecedented grassroots mobilization in several South American countries of the relatives of desaparecidos seeking the acknowledgment of truth resulted in the first official bodies mandated to establish an authoritative version of human rights abuses in the mid-1980s (Neier 1999:40). For example, the strenuous efforts of the ‘Madres de Plaza de Mayo’ in Argentina led to the establishment of CONADEP, a body much like a truth commission with specific emphasis on the desaparecidos; similar coordinated efforts by relatives culminated in truth commissions in Bolivia, Chile and Guatemala, to name only a few. Since then, truth commissions have become a central tool of transitional justice (Hayner 2002). Moreover, the persistent efforts of the relatives’ associations led to landmark legal decisions, gradually constructing an international normative context which reserves a central position for ‘truth’ and enforced disappearances. The most significant recent development is the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (Scovazzi and Citroni 2007). The Convention is the first universal instrument of its kind and represents a breakthrough; it ascribes the inalienable right of the relatives of a missing persons to ‘know the truth’ (art. 24, par. 2) 3 regarding the fate of the disappeared and the conditions of their disappearance. Hence, although the right to truth is still emerging in international law 3     and is not explicitly stated in international treaties (Mallinder 2008:163), the crime of enforced disappearances creates specific rights to truth for victims’ relatives in several treaties. It is in this revised normative context that such concepts as transitional justice, reconciliation and truth recovery have become central components of the policy- making agenda. Note, for example, the recent decisions by international organizations, most importantly the UN, to draw from a standard transitional justice toolbox in their peace-building initiatives (UN 2004). Given this, it is not surprising that a growing number of post-conflict countries choose human rights trials and other policies of accountability to comprehensively address the violent past, leading to a ‘justice cascade’ (Lutz and Sikkink 2001). Even more interestingly, these normative pressures encourage societies to overturn prolonged silences, even several decades after transition, a phenomenon called post-transitional justice (Aguilar 2008; Collins 2010). In the midst of this burgeoning change, Cyprus and Spain pose a complex dilemma. Contrary to the experience of other countries with disappeared/missing persons, such as Bosnia, Chile and Guatemala, where the mobilization of (civil) society to recover the missing persons was a central element of the transition to democracy, Cyprus and Spain remained (selectively) silent for a remarkably long period after their respective democratic governments were consolidated and are only now unearthing bodies and truths. Interestingly, although Latin American societies had limited access to legal and institutional tools, they mobilized earlier and more effectively to address the demand for truth than did Spain and Cyprus, even though the latter were members of influential international organisations. One would expect 4     societies with advanced legal instruments to be more proactive and effective in resolving human rights issues but this was not the case. Why do certain societies defer the acknowledgment of human rights problems even when democracy has been fully consolidated? How is this silence constructed, maintained and perpetuated? How (if at all) do transitional justice settlements persist over time? Finally, what explains the recent efforts of a growing number of countries like Spain and Cyprus to establish the truth and overturn prolonged silences, even several decades after the transition? It is argued that an early elite consensus, frequently informed by political learning from past experiences, links the non-instrumental use of the past with the political and security priorities of the nascent regime. Ultimately, this leads to strong institutionalization. As time passes, a ‘linkage trap’ is constructed, whereby selective silence becomes a well-entrenched and hegemonic feature of the political discourse and democratic institutions. Eventually, this hegemonic linkage narrows the variety of alternative policies and sidelines dissenting voices. Paradoxically, this linkage frequently provides the necessary tools for domestic truth seekers to acknowledge past human rights abuses, albeit in the long term. The article contributes to the growing (post)transitional justice debates, by highlighting the importance of domestic political actors in shaping or limiting external normative pressures. The decision of political elites to overturn prolonged silences is often informed by electoral, security symbolic and other domestic political considerations rather than driven by normative adaptation to external pressures. This is a gradual and often reversible process, influenced by the structure of domestic politics. The article also notes that the phenomenon of post-transitional justice is enhanced by unprecedented developments in forensic science. Uncontested forensic 5     evidence legitimizes previously excluded voices, thereby encouraging truth-seeking initiatives to mobilize, even belatedly. The article begins with a critical review of the literature of transitional justice, focusing on the absence of an analytically rigorous presentation of central working concepts. Drawing on the innovative tools of ‘elite framing’, it then explains the above-mentioned puzzles in Cyprus and Spain and sheds light on the causal mechanism through which silence over past humanitarian issues is constructed and perpetuated. It concludes with insights relevant to the study of (post)transitional justice. Enforced Disappearances and Truth Recovery in Transitional Justice Although the concept of truth recovery in transitional settings has gained currency over recent decades, it has been used to refer to a wide range of different – even contradictory – phenomena. It remains contested whether truth recovery constitutes a means to a higher end (i.e. reconciliation) or an end/value in itself. It is equally undetermined if truth refers to a process (i.e. truth-telling) or an outcome (i.e. report of a truth commission). Nor have scholars determined whether the scope of truth is individual (micro-truth) or social (macro-truth). In essence, the literature fails to address a number of ontological, epistemological and political problems. To get around this problem, this article adopts a bifurcated view of truth recovery. On the one hand, narrow truth recovery is used to refer to a minimalist conception of truth , more precisely, to forensic evidence related to the whereabouts of the disappeared/missing persons. Since the early 1990s forensic exhumations have become a conventional tool of international institutions in addressing the individual (narrow) demand for truth (Stover et al 2003:663-664). On 6     the other hand, wider truth recovery, indicates the official and unofficial efforts of societies emerging from conflict or authoritarian regimes to democratize the process of dealing with the past (Smyth 2007), by broadening the accessibility to the public discourse of previously excluded voices. These range from truth commissions, to tribunals, traditional justice, community-story-telling initiatives and official apologies. Needless to say, these conceptions of truth are not contradictory and frequently overlap. Based on the ‘Peace Accord Matrix’ of Kroc Institute, Table 1 identifies a number of countries as truth-seeking or non-truth seeking, relating this to the type of settlement reached – negotiated or non-negotiated. A careful examination of the table reveals the explanatory strengths and limitations of transitional justice literature. Three main groups of countries emerge from the table. [Insert Table 1 about here] In the first group, shown in the bottom boxes, the absence of a comprehensive peace settlement, as in the case of Eritrea-Ethiopia, can explain the decision to abstain from addressing the past. Elsewhere the total victory (or collapse) of one of the parties in conflict, as in the Philippines, creates conducive conditions for the winning side to decide whether to address the past. Meanwhile, in places like Cambodia or Timor-Leste where international involvement constitutes a central feature of transition/peace-building initiatives, transition is followed by some form of (narrow or wide) official acknowledgment of the problem of disappearances, most significantly through the establishment of retributive models of accountability. The proactive involvement of international institutions includes the contribution of material resources, as well as logistic support to undertake exhumations or establish war 7     crimes tribunals and truth commissions (Sriram 2004:25; UN 2004) and reflects an entrenched commitment to the normative principles of transitional justice. A normative thread seems to be linking a growing number of scholars who insist that societies in transition who address human rights violations, such as enforced disappearances, are more likely to strengthen the rule of law, prevent recourse to self- help justice, develop respect for human rights culture and educate citizenry in democratic practices (Elster 2004; Méndez 2001:32; Minow 2002). The growing use of the tool of human rights trials in most societies where international organizations are engaged in peace-building, bolsters the argument that the norm of accountability for grave human rights violations has created the ‘justice cascade’ mentioned above (Sikkink and Walling 2007; Lutz and Sikkink 2001). A second group, at the top left of the table, involves cases of negotiated transitions/peace settlements, where the transition was followed by some sort of acknowledgment of the problem of the disappeared.4 It seems that a significant number of countries have opted to acknowledge human rights abuses despite the fragility of the peace/democratization processes. In fact, certain landmark cases that have shaped contemporary debates on transitional justice, such as Argentina and Chile, could have been included in this box. It is revealing that all societies who experienced a pacted transition and decided to come to terms with their past – with the exception of Croatia – chose the establishment of a truth commission over measures of retributive justice. In essence, this column reaffirms the view of a growing number of scholars who include truth commissions as novel and superior tools in the transitional justice toolbox (Hayner 2002). Truth commissions have historically been seen as ‘second-best’ alternatives, located somewhere between the impossibility of retributive justice prohibited by the pacted nature of the transitions 8     and the growing demand for truth in societies with missing persons (Neier 1999:40). More recently, truth commissions have been transformed; their functions include the ability to restore the dignity of victims, to uproot long-standing myths that bolster violence and cultures of victimhood (Rotberg 2000) and to break the cycles of violence (Minow 2002), thereby becoming a central instrument of transitional justice (Brahm 2007;Hirsch 2007). But that is not the whole story. One would expect that in the post-1989 period, when the tools (including binding legal instruments, the centrality of human rights on the international agenda and DNA testing) were available to recover the (narrow or wider) truth about missing persons, more societies in transition would have acknowledged the truth and provided societal closure. But as the third group, shown at the top right of the table reveals, more than half the countries who experienced a negotiated transition have resisted – for the time being – these external pressures. In fact, as the experiences of Mozambique and Northern Ireland indicate, they have primarily designed policies based on amnesties and silence. A number of realist scholars subscribing to the ‘logic of consequences’ (Snyder and Vinjamiri 2003) have long argued that because transitions/peace agreements are fragile processes, any effort to comprehensively address the past may upset ‘spoilers’ who perceive truth recovery initiatives to be blatant scapegoating and thus endanger the transition (Vinjamuri and Snyder 2004:225). In essence, these scholars insist that scrutinizing the past is not a normative decision but a political one and, as such, any measure that could contribute to the stability and consolidation of the regime could legitimately be used, even if this requires the adoption of amnesties, impunity, forgetting and silence (Cobban 2006; Mallinder 2008; Mendeloff 2004). 9     Spain and Cyprus are outlier cases and do not fit well into the table. Spain would have initially been included in the top right quadrant. During the transition to democracy (1975), Spanish society and political elites decided to establish a ‘pact of silence’ and literally and figuratively bury these complex issues. Still, in a remarkable volte face, 70 years after the conclusion of the civil war and almost 30 years after the consolidation of democracy, Spain started digging into its past (Aguilar 2008), moving it to the top left box. For its part, Cyprus is the only case where despite the absence of a political settlement of the conflict, a successful mechanism has been established to address the demand for (narrow) truth recovery of Turkish-Cypriot and Greek-Cypriot missing. It therefore makes sense to use these two societies to comprehensively test the central arguments of transitional justice literature. With the exception of Northern Ireland, the literature of transitional justice has focused on ‘success stories’ (i.e. where truth recovery is central in the transition) such as South Africa, the former Yugoslavia and Guatemala (Thoms et al 2008). Little notice has been taken of cases where the truth recovery for missing persons and transitional justice has been absent, such as Cyprus and Spain. Moreover, by focusing explicitly on the period of transition, or immediately following it, the literature has failed to notice that although societies during transition may decide to defer the solution of human rights issues this does not necessarily mean that a demand to acknowledge this will not emerge in the future. Furthermore, the transition in Spain and the cessation of hostilities in Cyprus took place well before the above mentioned normative turn in the 1990s. Rather, they occurred at a time when foreign intervention for human rights was minimal, thereby making these two countries instructive examples on how societies can manage humanitarian problems in the absence of the ‘international factor’. Finally, the time- 10     lag permits us to draw safer conclusions, test alternative hypotheses and examine causal patterns of silence/non-silence over human rights abuses, than if we use more recent cases. For all these reasons, Cyprus and Spain are well suited to explain both prolonged silences in transitional justice and the decision to become belated truth seekers. Political learning, negotiated transitions and silences In societies emerging from conflict, the guidelines for what will be remembered and what will be excluded from public discourse are drawn up during the transitional period. Therefore, the study of transitions provides useful insights into the (non)solution of human rights problems and the long term effects of transitions. As Diagram 1 indicates below, elite consensus is significantly facilitated – often dictated - by transitions that result from a pact between the major political forces. In cases of pacted transitions, there is a need to set a least common ideological denominator upon which to build the consensus for the new political regime. [Diagram 1 here] A decision to silence contentious incidents of the past, such as the Spanish Civil War, or to ‘selectively remember’ the past in a way that accentuates a culture of victimhood, as in Cyprus, is frequently identified as the most appropriate basis for consensus in transitions to democracy. More than politics is at stake here. The burgeoning field of ‘memory studies’ has shown that a common feature of post- traumatic societies is the conscious decision to forget certain painful aspects of the past (Brewer 2010:147;Connerton 2008:60). In a notable case-study commonly used in transitional justice literature, post-World War II (West) Germany’s transition in the 11     1950s is characterized by the social amnesia of Germans – forgetting what they did and also what was done to them (Misztal 2005:1327). A subtle agreement is frequently reached between parties previously in conflict to ‘link’ the non-use of the bitter past to the political arena in exchange for a commitment to the new democratic political regime. Since negotiated transitions are perceived to be second-best alternatives for all parties, contentious issues like truth recovery are often excluded; public debate raises the issue of responsibilities and might easily become a ‘blame game’, endangering the whole agreement. For example, in Northern Ireland, the IRA remains sceptical of opening a formal truth recovery process on the issue of the disappeared, as this would raise the thorny issue of responsibilities (Guelke 2007:285). In this way, silence or selective memories become ingrained in political discourse. As noted, eventually, the elite framing becomes institutionalized and hegemonic; this may be the most effective path to peace, stability and democratic consolidation, but it decreases the prospect and scope of truth recovery. The process of consensus-building described here is often facilitated, even dictated, by the painful experiences of the past which act as political lessons at crucial historical junctures, such as transitions. 5 According to Bermeo, ‘crises often force people to re-evaluate the ideas that they have used as guides to action in the past. The changed ideas may relate to tactics, parties, allies, enemies, or institutions’ (1992:274). As Bermeo sees it, a lesson can be learned by considering similar experiences of other countries in the international arena (horizontal lesson) or considering a similar preceding period in a society’s history (vertical lesson) (ibid). Elite settlements, although providing a conducive environment for promoting democracy and peace, not to mention the ideal environment for resolving urgent 12     problems (economy, reconstruction, institution-building), are achieved at the expense of the quality of the emerging democracy. Negotiated transitions tend to concentrate power in the hands of a few political elites and inhibit open democratic procedures; they restrain the development of a vibrant civil society and slow the development of political and civil rights (Encarnación 2003; Licklider 1995:685; Linz and Stepan 1996:56). The most significant side-effect of ‘pacted transitions’ is the demobilization of civil society. Main sources of truth-seeking in post-conflict/post-authoritarian regimes are vocal civil society groups associated with the victims; in negotiated transitions, like Cyprus and Spain, these remained silent. As noted above, in both Cyprus and Spain an early elite consensus to link the non-instrumental use of the past with the need for political stability led to the creation of a hegemonic discourse. Once a frame becomes hegemonic, inconvenient questions that contravene or challenge it are excluded from public debate. As Ian Lustick says, hegemonic discourses ‘exclude outcomes, options or questions from public consideration’ (1993:121). This does not mean that frames are permanent or immutable: new legal, scientific, economic or political developments may force elites to slightly revise their proffered frame to sustain its hegemonic role and prevent its crumbling. However, if the intensity and significance of the new developments outshine the ability of frame-makers to incorporate them smoothly in the existent frame, then the hegemonic frame loses its explanatory value and collapses. Methodology Elite framing is a useful tool to study the policy outcomes that prevent truth recovery. The framing process has two analytical components. The first stems from the need to 13     identify the source(s) of the problematic situation and attribute responsibility: this could be termed ‘legitimizing framing’ (Benford and Snow 2000). It presumes that the present situation is unjust, and grievances are due to the actions of another agent or conditions outside the control of the ‘in-group’ (Gamson 1992; Klandermans 1997). The second, ‘motivational framing’, derives from the need to change the problematic situation; it leads to the creation of a strategy to accomplish change (Benford and Snow 2000). Framing ‘select[s] some aspects of a perceived reality and make[s] them more salient in a communicating text, in such a way as to promote a particular problem, definition, causal interpretation, moral evaluation, and/or treatment recommendations’ (Entman 1993:52). The primary function of frames is to ‘organize experience and guide action’ (Snow et al 1986:464); thus, a core element of the framing process is the degree of instrumentalization in the definition of an issue. The framing process determines ‘reality’ because of its ability to highlight certain aspects of reality while ignoring others (Benford and Snow 2000). As Entman aptly notes, ‘The frame determines whether most people notice and how they understand and remember a problem, as well as how they evaluate and choose to act upon it’ (1993:54). Because policy-makers and ordinary people deploy these simplified mental images to interpret social events and choose among alternative courses of action (Tetlock 1998:876), framing is a useful tool for analyzing certain aspects of a conflict, in this case, truth recovery for missing persons.6 In this article, I employ an innovative, multi-method approach to ‘elite framing’ (Benford and Snow 2000), drawing on an extensive and comprehensive study of parliamentary speeches in two countries over the last three decades. This analysis is coupled with process tracing to identify the causal mechanism by which 14     the specific elite framing adopted during transition prevented the scope of truth recovery in Cyprus and Spain (George and Bennett 2005:215). In the wide-ranging archival work that preceded the analysis, I read parliamentary debates, seeking to trace the construction of elite discourse(s). I also had limited access to classified documents from the Cyprus House of Representatives and memos prepared for the Ministry of Foreign Affairs of the Republic of Cyprus. Finally, I examined party documents, such as electoral programmes and party memoranda. All these helped me to determine the development of the political discourse. The interviews I conducted with politicians shed light on why certain policies were chosen over others at specific junctures; and my interviews with individuals with privileged information allowed me to ‘triangulate’ my hypotheses. The study of parliamentary debates has several advantages. For one thing, it allows the analyst to pinpoint a certain framing which is adopted at a very specific time; actors cannot retrospectively change their positions to suit temporal changes in context (Loizides 2009). For another, it facilitates process-tracing, or the construction and maintenance of elite discourse over the long-term. Spain: Disappeared and El pacto de silencio What becomes apparent from the Spanish parliamentary debates7 is that the issue of the desaparecidos was not raised until the early 2000s.8 This prolonged silence poses a methodological problem in the elaboration of the elite framing. To overcome it, I pursue two complementary paths. First, I analyze the debates on other victims’ groups: those mutilated in the civil war, the widows and children of the fallen and ex- prisoners. I consider the difference between the treatment of their demands and the silence over the issue of desaparecidos and relate this to elite framing. Second, I 15     examine the debates on the Amnesty Law (1977), generally perceived to be the founding tenet of the transition. The two sets of analyses, coupled with my interviews of members of the designated parliamentary commission and my study of electoral programs overcome this methodological concern. The debate on the Amnesty Law of 1977 is revelatory of ‘legitimizing framing’. In it, the civil war is presented as a period of ‘collective madness’ where both sides committed heinous crimes. The attribution of responsibility is strictly avoided: clearly, there is no ‘rational’ actor to blame for the immense tragedy (Aguilar 2002). An example of this diagnostic framing appears in the words of the spokesperson of the governing party, Unión de Centro Democrático (UCD); in a 1978 reference to the debated law on pensions for widows and orphans, Bravo de Laguna Bermudez says: [T]hose widows and orphans that today we talk about….are not merely widows or orphans of the communists, of the socialists, or anarchists, but widows and orphans of the tragic Spain … We can give different explanations about what happened between 1936 and 1939, but in any case, it was a national tragedy. (Parliamentary Debates Num.141, 23/11/78:5576-8) He goes on to proffer strategies to alter the situation (‘motivational framing’). In effect, two central framing strategies link the silence on humanitarian issues with the legitimacy of the transition: the establishment of a wide political consensus to bury the divisive past and achieve reconciliation – seen as a precondition for democratic consolidation; and the adoption of an instrumental rationale for redressing victims groups’ (material) needs for closure. The element of learning from past experiences is evident in the speeches on the Amnesty Law and the Draft Law. The former Law is framed as the symbolic 16     closure of a prolonged period of divisions and the beginning of a new democratic era. During its debate, a representative of the Socialist Party insisted: ‘Today is the date, in which finally, the civil war is buried’ (Parliamentary Debates Num.24, 14/10/77:965- 8). Throughout the Parliamentary records, the need to bury the past is seen as the distilled experience of painful lessons, even by the representatives of the ‘defeated’, most notably communist leader Santiago Carillo (Parliamentary Debates Num.5, 27/7/77:73-76). In the interviews I conducted with members of the Designated Parliamentary Committee for drafting the Law on Historical Memory, in 2004, almost all still subscribed to this prognostic framing, saying that an agreement to bury the past was mandatory at the time (Anonymous Interviews, 6 May 2009 and 18 May 2009). The other tenet of motivational framing highlights the instrumental rationale of accommodating the victims groups’ demands. More specifically, reparations are granted to certain groups not as an acknowledgment of their suffering or their contribution to a noble cause but to comfort the disaffected, including reparations to widows and orphans (Parliamentary Debates Num.141, 23/11/78:5575-6) and military pensions (Royal Decree 6/1978). In part, these are acts of benevolence – not justice. They are perceived as solving problems not covered by the Amnesty Law; therefore, they are treated as solutions that will enable closure (punto final) and accelerate the processes of national reconciliation and democratic consolidation (Aguilar 2008:420). Still, desaparecidos are excluded from this framing. Oddly enough, at approximately the same time as the amnesty debates, unofficial exhumations were carried out in Spain. My archival research shows that from 1977 and throughout this first step towards democracy, exhumations took place around the country. In fact, a popular magazine of the time, Interviú,9 featured detailed coverage of the efforts of 17     the relatives of desaparecidos to exhume the graves and provide their loved ones with a decent burial (Interviú 21/12/1978; 3/01/1980). Although in other transitional places (Latin America), these grassroots processes have led to strong social movements, in Spain, they lost momentum and succumbed to the overriding hegemonic discourse. Why was the issue of desaparecidos silenced when the demands of other victims groups were accommodated? I have two overlapping responses, the first focusing on the top echelons and the second on the grassroots, both related to the side- effects of the specific elite framing. First, political exhumations (‘narrow truth’) or policies of acknowledgment (‘wider truth’) for the desaparecidos and the political violence would have raised questions of political responsibility. Asking and answering the question ‘who did what to whom?’ had the potential to derail democratic consolidation. Therefore, any truth-seeking initiative was out of the question because it contradicted the raison d’être of the proffered framing, namely, to abstain from using the past as a political argument in debates. A second overlapping explanation considers the meagre participation of Spaniards in civic associations, a phenomenon described by Omar Encarnación as ‘civic anemia’ (2001:63). More than 20 years after the consolidation of democracy, only one in three Spaniards belongs to any voluntary association, levels similar to the post-communist regimes of Eastern Europe (ibid). For one thing, the legacy of the (pacted) transition led to the demobilization of the civil society, thereby hindering truth-seeking. For another, an endemic feature of Spanish political culture is the penetration/control of all sorts of civic associations by political parties, primarily through financial means (Encarnación 2003). To some extent, political parties have determined the agenda of the associations and defined their scope. As the early elite 18     framing became institutionalized and ‘hegemonic’, it narrowed the conception of national interest at the top and silenced grassroots practices that could contravene it. An indication of the hegemonic status of the discourse is its institutionalization in legislation and legal decisions. Ryan says that in 1979, an individual involved in an unofficial exhumation was reprimanded for carrying out ‘illegal exhumations’ (Ryan 2009:123). The legal institutionalization of this hegemonic belief is even obvious in the contemporary wave of exhumations. In a recent motion, Judge Baltázar Garzón argued that the systematic nature of the crime constitutes a crime against humanity, and therefore the 1977 Amnesty Law is inapplicable to cases of enforced disappearances (Motion 399/2006). The possibility of overturning the founding tenet of the transition, namely, the Amnesty Law, sparked heated political debate and opened up the prospect of Garzón’s expulsion. The case of Garzón can be fully understood only within the wider post- transitional justice context in Spain (Aguilar 2008). More precisely, since the early 2000s, several grassroots organizations of relatives have mobilized to unearth their desaparecido ancestors, provide them with a decent burial, clear their reputation and acknowledge the corresponding (republican or democratic) version of truth about the Spanish civil war (Gálvez-Biesca 2006; Ferrándiz 2009). 10 The mobilization of the generation of the grandchildren of the disappeared exerted bottom-up pressure on the Socialist government, leading to the passage of the above-mentioned Law on Historical Memory which addressed central issues of transitional justice: denouncing Franco’s regime; banning public symbols that commemorate Franco or his allies; mandating local governments to finance exhumations of mass graves; declaring ‘illegitimate’ the summary military trials held during the civil war and Francoist 19     dictatorship; opening up military archives; and offering other measures of moral, symbolic and economic repair to all victims of the war (Law 53/2007). In other words, more than three decades after the consolidation of democracy in Spain, a specific framing was ingrained in political institutions, the political system and legislation. Simply stated, its hegemonic status prevented truth recovery. Surprisingly, however, the prolonged silence was finally broken. Proof of this is the passage of the Law on Historical Memory and its fuelling of media and public debates. Cyprus: selective memory and missing frames Tracing the elite framing of the problem in the RoC over the past decades reveals a number of downplayed or silenced issues. Take, for example, the official definition of the missing. Until 2003, a missing person was considered to be a ‘Greek-Cypriot who is still missing since the July 20th 1974, due to the Turkish invasion…and the state has no positive information that s/he died’ (Law Number 77/1979). Two interesting features of motivational framing are evident in this definition. First, the beginning of the problem of missing persons coincides with the Turkish invasion (20/7/1974), thereby indicating a conscious decision to causally link the issue of the missing with the invasion. Since 1974, 12 resolutions by the House of Representatives have assigned sole responsibility to Turkey; all were adopted unanimously (Resolutions Number 37/1975; N.46/1978; N.58/1980; N.113/1992;N.124/1997). Second, the Turkish-Cypriots who went missing as a result of the atrocities of Greek-Cypriot paramilitaries in the 1960s (Patrick 1976) are excluded, even though they are citizens of the Republic. 20     In other words, selective memory (or selective oblivion) became a founding tenet of the pact that facilitated the transition to peace and democracy in the RoC after the 1974 invasion. References to cases of missing persons, either Greek-Cypriots or Turkish-Cypriots preceding the Turkish invasion, would have seriously delegitimized the predominant discourse which identifies the Turkish invasion as the cause of the problem. Motivational framing can explain the tactics of political elites in the addressing of the problem of the missing. They used two overlapping framing strategies: one emphasizing national unity and reconciliation by strengthening the institutions of the Republic as the only way to overcome the legacy of intra- communal division of the past within the Greek-Cypriot community and restore credibility to the RoC; the other using the symbol of wounds opened by the Turkish invasion to accentuate a ‘culture of victimhood’ and enable the construction of a new common basis of ‘unity’ for the Greek-Cypriot community. Although the Turkish invasion is used as the focal point of the framing, it was preceded by growing intra-communal violence within the Greek-Cypriot community culminating in a short coup ousting President Makarios.11 Leftists, frequently treated as traitors, were the targets of violent attacks during the anti-colonial struggle of EOKA   (Εθνική Οργάνωση Κυπρίων Αγωνιστών - National Organization of Cypriot Fighters);12 these peaked during the coup (Papadakis 1993). A number of civil society initiatives representing the relatives of those killed have recently emerged demanding that the state apologize for the human rights violations of leftists (Ireton and Kovras 2011). The legacy of intra-communal violence was so traumatic that it continues to create political cleavages within the Greek-Cypriot community. Nevertheless, in the overall ‘Cyprus problem’, even left-wing parties who suffered from nationalist 21     violence have subscribed to the frame prioritizing ‘national unity’. For example, on the first anniversary of the coup, when the memories of the intra-communal violence were still fresh, the leader of communist party AKEL officially declared that his party would ‘keep the flag of patriotic unity high’ (Parliamentary Debates 15/7/1975: 581). The Cypriot Communist party echoed PCE’s conciliatory tone in Spain, mentioning the need for concessions (‘silences’) to pave the way for democracy. The Turkish invasion led to a revised framing, one focusing on unity and the traumas of the invasion. The missing became the central symbol of ongoing suffering, and political elites invested political capital in this framing. The official name of the designated parliamentary committee on missing persons (established in 1981), the Committee on Refugees-Enclaved-Missing and Adversely Affected Persons (discussed in greater detail below), underscores this political strategy. By linking all aspects of victimhood triggered by the Turkish invasion, it was expected to frame the problem in human rights terms, thereby enhancing international sympathy for the Greek-Cypriot negotiating position in the search for a political settlement to reunify the island. As might be expected, the elite framing, in combination with the (de facto) division of the island in Cyprus facilitated the creation of a ‘highly censorious environment’, one ‘marked by taboos, intolerance and vilification of views deviating from the predominant governmental discourse and the official views of history’ (Faustman 2009:34). As in Spain, this culture has fettered the development of a vibrant and vocal civil society (Mavratsas 2003) which, as noted above, is a source of truth-seeking. Even the official organization of the relatives of the missing has interpreted human rights through the lens of national interests. In other countries with disappeared or missing persons, such organizations are the main sources of truth 22     seeking; but in the Greek-Cypriot community, they blocked truth recovery (Kovras and Loizides 2011). For example, in the mid-1990s, the relatives’ association objected to the government’s intention to exhume common graves in two Greek-Cypriot cemeteries on the grounds that this would lead to a ‘cover-up’ of the problem (ibid). Despite the absence of a political settlement, in 2004 a bi-communal agreement was reached to resume the activities of the hitherto ineffective Committee on Missing Persons (CMP). ‘De-linking’ humanitarian issues like the missing – where the Republic of Cyprus had a moral advantage – was previously considered likely to weaken the overarching Greek-Cypriot political strategy for the reunification of the island. However, lessons learned from past policy failures by chief policy-makers, technological advancements that supported a revised policy and the domestication of new (legal and human rights) norms,13 all contributed to the resumption of the CMP. It has now become the most successful bi-communal project on the island (UN 2007). By August 2010, 690 bodies had been exhumed and 248 identified (CMP 2010). In addition, although the elite framing retained its founding tenets, it became less rigid and began to acknowledge the victimization of Turkish-Cypriots. Paradoxically, a dual framing process has facilitated the exhumations and the demand for (narrow) truth recovery. On the one hand, although the wave of exhumations is seen to reaffirm the dominant discourse of victimhood – i.e. every exhumation is an evidence of the Turkish aggression – there is strong incentive to encourage the effective working of the CMP. At the same time, the slightly revised framing that encompasses the Turkish-Cypriot missing, has led to institutional measures that introduce the (relatives of the) Turkish-Cypriot missing as legitimate political actors. This development has transformed the normative context within which domestic actors interact, leading to the support of the CMP even by actors or politicians who 23     previously had reservations. Despite the remaining political stalemate, the developments on the missing have instilled in the public and political discourse critical re-evaluation over responsibilities for the past – an element previously ‘missing’. Lessons for (post)transitional justice The study finds that an early elite consensus and its institutionalized discourse is a double-edged sword in negotiated transitions. On the one hand, the deep institutionalization of the consensus excludes dissenting voices and prevents early truth recovery. On the other hand, it may be a necessary evil to achieve a minimum level of democratic consolidation and peace. Labelling this a ‘linkage trap’, I note that in negotiated transitions, a subtle elite agreement links the non-instrumental use of the past with the imminent needs for political stability and nascent democratization. Gradually, this silence is ingrained in the political institutions and the political culture; ultimately, this framing acquires a hegemonic status that is hard to challenge. But in the long term, this silence may be a necessary precondition for democratic consolidation. Alternatively put, there is an inherent paradox in consensual institutions: they are oriented towards reproducing the consensus (hegemonic belief) which silences the victims and civil society at large, but at the same time, they cultivate democratic institutions which provide the tools necessary for domestic truth seekers (such as civil society groups) to promote truth recovery and (post)transitional justice, albeit, in the long term. Given this logic of consequences, political parties representing or affiliated with victims’ groups frequently hesitate to deal with the past, even if they assume power in the nascent democratic regime. The cases of PSOE and AKEL, in Spain and 24     Cyprus respectively are not exceptional. The consecutive Socialist governments (1981-1989 and 1993-2004) in Greece, while representing a significant number of those defeated in the Greek civil war have abstained from addressing the past. The same applies to Chile. In the aftermath of the 1989 referendum that ousted Pinochet, the centre-left Concertación coalition governed for four terms but made only marginal moves towards official acknowledgment of the past (Sandbu 2010). Political parties representing the defeated or past victims may prefer to disappoint their electoral constituents rather than trigger instability and endanger overarching objectives (i.e. democratic consolidation, economic development or reconstruction of state infrastructures). However, this is just one part of the story, since at different post-transition periods, these same parties may decide to break the silence and campaign in the interests of victims groups. For example, during his Presidency in Argentina (2003- 2007), Néstor Kirchner introduced measures calling for greater scrutiny of the past, most notably by declaring the ‘full-stop’ and ‘due obedience’ laws as null and void, as well as reopening trials for human rights abuses – including disappearances (Economist 2003). Similarly, in Uruguay, despite two referendums that rejected the annulment of the amnesties for human rights abuses during the military from 1973 to 1985, President Vázquez campaigned to abolish the amnesty law, arguing that it violated Uruguay’s obligations under international human rights treaties (Economist 2010a). Hence, silence is not an irreversible feature of national politics and collective memories. In fact, there is a growing trend in post-traumatic societies to revise the pacts of silence, even after a considerable delay, which reflects the broader normative turn in international politics. In the period preceding the end of the Cold War the 25     overarching priorities of maintaining global order and stability made amnesties and silence over human rights abuses constitutive elements of peace agreements (Newman et al. 2009). Since then, though, the global diffusion of human rights norms (Risse and Sikkink 1999) has increasingly dictated the inclusion of human rights provisions into peace settlements. As Christine Bell’s systematic study of more than 600 peace agreements since 1990 has shown, the emerging normative consensus perceives amnesties as an exception to the norm of accountability (2008:243). New normative requirements on the content of peace settlements are explained by the proactive role of the most influential international institutions in combination with the emergence of vocal transnational advocacy networks which exert pressure for their implementation (ibid). In essence, these external normative pressures have rendered blanket amnesties obsolete, changing the nature and the content of elite bargaining in peace processes and democratic transitions (Lutz and Sikkink 2001). The growing deployment of normative tools to address the past in peace agreements is also evident by the decision of an increasing number of countries undergoing negotiated transitions to deal with their violent past, a phenomenon reflected in increased number of truth commissions (Hirsch 2007). This revised normative framework not only informs the content of pact- making, but, as the experience of several South American societies has indicated, it legitimizes domestic truth-seeking actors to exert bottom-up pressure in a way that overturns enduring amnesty laws and challenges decades’ long silences (Collins 2010). In other words, the agenda of international politics (and law) has considerably changed since the historical examples of Cyprus and Spain. The new norms prevent silence from being institutionalized and bring an end to oblivion and denial in societies with well-entrenched cultures of silence. In the period preceding the 26     normative turn of 1990s, it would have been unimaginable for any Spanish government to pass a law that would address several (post)transitional justice measures or challenge the legitimacy of the Amnesty Law of 1977 – perceived as the founding tenet of the post-Francoist Spanish democracy. The landmark memory law in Spain should not be attributed exclusively to external influences. It also resulted from the sustained efforts of a number of grassroots groups who had been trying since the early 2000s to unearth the bodies of the desaparecidos of the civil war. These efforts were ultimately embraced by influential domestic allies, including political parties, judicial authorities and media, and resulted in officially implemented measures of (post)transitional justice (Ferrándiz 2009). Similarly in Cyprus, the resumption of the CMP was preceded by the strenuous efforts of bureaucrats within the Ministry of Foreign Affairs who perceived the external influences as an opportunity to implement a policy of (narrow) truth recovery. However, this policy has not led (yet) to the crumbling of the hegemonic silence – only its substantial revision. The experiences of Cyprus and Spain reveal that the role of domestic actors is crucial in taking advantage of (or resisting) external influences; even when a decision to overturn silence is made, this is not a linear or predetermined process, but gradual progress with many pauses and backward steps. Brazil verifies this; 25 years after the end of the dictatorship, the proposal of the popular President Lula to establish a truth commission on the disappeared triggered a fierce reaction from the military and was subsequently withdrawn (Economist 2010b). This is a central feature of other post- transitional justice societies, such as Chile and El Salvador (Collins 2010). External opportunities depend on domestic politics and vice versa. This point echoes Putnam’s ‘two-level game’ theory: international pressure ‘expands domestic 27     win-sets’, and as such constitutes a necessary condition for a policy shift, but ‘without domestic resonance’ this is insufficient (1988:430). The decision of political elites to revise a well-entrenched framing is often shaped by electoral, security, symbolic and other political considerations, rather than explained exclusively by normative adaptation. Drawing on the same theoretical framework, Martin and Sikkink have highlighted the importance of domestic constituencies in filtering external pressures in several Latin American countries (1993). Although the study acknowledges the power of external normative pressures in bringing about post-transitional justice and the erosion of prolonged silences, it also highlights the pivotal role of domestic politics in utilizing or resisting these normative influences, a point frequently disregarded by the prescriptive orientation of the literature. Most importantly, the study fits in with a broader trend towards bridging the gap between the international and comparative politics (Caporaso 1997); it shows how international norms have come to revise the nature of pact-making, while highlighting the importance of domestic actors and institutions. Another issue raised by the comparative analysis of Cyprus and Spain relates to the nature of truth in transitional settings. Even the most celebrated venues for screening the past, such as truth commissions or trials, analyze/incorporate individual ‘truths’ through a kaleidoscopic view of the past which seeks to establish a new mental framework to make sense of complex and confusing past events (Wilson 2003:370). Frequently, the mandates of truth commissions delimit the scope of enquiry, either by focusing exclusively on the study of specific human rights violations or by considering a very specific period of violence (Chapman and Ball 2001:4). For example, some transitional states have mandated truth-finding mechanisms to investigate only disappearances, excluding other crimes, such as 28     torture, arbitrary detention or sexual abuses of women, as the cases of Argentina and Uruguay reveal (ibid). In this way, truth-seeking initiatives contribute to a narrative construction which privileges certain memories, victims’ groups or political parties at the expense of others. Trials and truth commissions frequently exclude, obscure or marginalize other accounts that contravene this overarching framework. Therefore, it is important to highlight that while truth seekers challenge hegemony, they also construct a new one, and this new hegemony may be full of blind spots. In Cyprus and Spain, the advancement of forensic sciences has made an important contribution to truth discovery. On the one hand, forensic evidence establishes hard facts about the past violence that legitimizes previously excluded voices. On the other hand, forensic evidence from exhumations creates more (discursive) space for multiple – but equally legitimate -- truths to enter public debates. The ability to unearth the (narrow) truth about the past in a scientifically sound way paved the way for the acknowledgment of the suffering of the Turkish- Cypriot missing. Forensic truth coupled with the global normative context encourages the emergence of multiple versions of truth about the past. This enhances the prospects of (narrow or wider) truth recovery in post-conflict settings and suggests the need for overturning prolonged silences. Conclusion In negotiated transitions, a subtle elite agreement linking the non-instrumental use of the past with the political and security priorities of the transitional society is often achieved. As time passes, a ‘linkage trap’ is constructed, where selective silence over the past becomes a well-entrenched feature of the political discourse and democratic institutions. As soon as this framing becomes hegemonic, dissenting voices are 29     silenced; it also narrows the conception of national interest and inhibits the solution of human rights issues, even when new windows of opportunity open. At first glance, we conclude that this situation leads to a deadlock. However, as the hypothesis of ‘linkage paradox’ shows, in the long term, the linkage of (i.e. the silence on) human rights issues to the elite pact that serves as the founding tenet of transition becomes the most efficient way to unearth the truth. More precisely, this silence enables the consolidation of strong democratic institutions which, in turn, provide the institutional tools to (domestic) truth-seekers to put forward a comprehensive truth recovery, when such a societal demand emerges. A policy of reviewing the past cannot be implemented without societal consensus that this is a priority. The fascinating transformation of an inoperative humanitarian body for more than two decades into the most successful bi-communal project in Cyprus, and the vocal demand of the generation of the grandchildren of the desaparecidos, in Spain to unearth the remains of their grandparents 70 years after the conclusion of the civil war reflect the emergence of a new societal consensus. In both countries, domestic actors challenged the long-standing hegemonic silence, reaffirming the growing phenomenon of post-transitional justice in international politics and reflecting the new normative turn seen round the globe.14 Bibliography Aguilar Paloma (2008) ‘Transitional or Post-Transitional Justice? Recent Developments in the Spanish Case’, South European Society and Politics, vol.13(4), pp. 417-433. Aguilar Paloma (2002) Memory and Amnesia. The Role of the Spanish Civil War in the Transition to Democracy, London: Berghahn Books. Bell Christine (2008) On the Law of Peace: Peace Agreements and Lex Pacificatoria, Oxford:Oxford University Press Benford, Robert & Snow, David (2000) ‘Framing Processes and Social Movements: An Overview and Assessment,’ Annual Review of Sociology 26: 611-39 Bermeo, Nancy (1992) ‘Democracy and the Lessons from Dictatorship’, Comparative Politics, Vol. 24(3), pp. 273-291 30     Brahm Eric (2007), ‘Uncovering the Truth: Examining Truth Commission Successes and Impact’, International Studies Perspectives, Vol. 8, pp.16-35. Brewer John (2010) Peace Processes. A Sociological Approach, London:Polity. Caporaso A. James (1997) Across the Great Divide: Integrating Comparative and International Politics’, International Studies Quarterly, Vol41(4),pp.593-592 Chapman Audrey and Ball Patrick (2001) ‘The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa and Guatemala’, Human Rights Quarterly, Vol.23(1), pp. 1-43 Cobban Helena (2006) ‘International Courts’, Foreign Policy, No.153, March-April, pp.22-28. Collins Cath (2010) Post-Transitional Justice. Human Rights Trials in Chile and El Salvador, Pennsylvania: Pennsylvania State University Press. CMP, Committee on Missing Persons (2010) Fact Sheet, August 2010, Also available at: http://www.cmp-cyprus.org/nqcontent.cfm?a_id=1 Connerton Paul (2008) ‘Seven Ways of Forgetting’, Memory Studies, Vol1(1), pp.1- 59. Economist (2003) ‘A Full Stop Removed’, 368(8340):33 Economist (2010a) ‘Human Rights in Uruguay: Take three’, 24 November. Economist (2010b) ‘Don’t Look Back: The Army Blocks a Truth Commission’, January 7. Elster Jon (2004) Closing the Books: Transitional Justice in Historical Perspective, Cambridge, Cambridge University Press. Encaranción Omar (2001) ‘Civil Society and the Consolidation of Democracy in Spain’, Political Science Quarterly, vol.116(1), pp. 53-79. Encarnación Omar (2003) ‘The legacy of Transitions: Pact-making and democratic consolidation in Spain’, Estudio/Working Paper 2003/193, also available at: www.march.es/ceacs/ingles/publicaciones/working/archivos/2003_193.pdf Entman, Robert (1993) ‘Framing: Toward Clarification of a Fractured Paradigm,’ Journal of Communication 43(4): 51-58 Faustman Hubert (2009) ‘Aspects of Political Culture in Cyprus’, in Ker-Lindsay and Faustman Hubert (eds), The government and politics of Cyprus. Peter Lang, Oxford pp. 17-44. Ferrándiz Francisco (2009) ‘Fosas Comunes, Paisajes del Terror’, Revista de Dialectologia y Tradiciones Populares, vol. LXIV, no.1, pp.61-94. Gálvez-Biesca Sergio (2006) ‘El Proceso de la Recuperación de la Memoria Histórica en España: Una aproximación a los movimientos sociales por la memoria’, International Journal of Iberian Studies, vol.19(1), pp. 25-51. Gamson, William (1992) Talking Politics. Cambridge: Cambridge University Press. George L. Alexander and Bennett Andrew (2005) Case Studies and theory- Development in Social Sciences. Cambridge, Mass., MIT Press. Guelke Adrian (2007) ‘The Northern Ireland Peace Process and the War Against Terrorism: Conflicting Conceptions?’, Government and Opposition, Vol.42(5), pp.272-291. Hayner Priscilla (2002) Unspeakable Truths. Facing the Challenges of Truth Commissions, London, Routledge Hirsch Ben-Josef Michal (2007) ‘Agents of Truth and Justice. Truth Commissions and the Transitional Justice Epistemic Community’, David Chandler and Volker Heins (eds.) Rethinking Ethical Foreign Policy. Pitfalls, Possibilities and Paradoxes, pp. 184-205, London: Routledge. 31     Interviú, (1978) ‘Navarra: Fusilados por Dios y por España’, 21 December 1978, issue 136 Interviú (1978) ‘Navarra: Fusilados por Dios y por España’, 21 December 1978, issue 136; Interviú, ‘17 Pueblos recuperan 211 cadáveres. Legionarios fusilados por falangistas 3 January 1980, issue 190; Interviú, NAVARRA 1936 (2) Los verdugos de la Cruzada’ Interviú, (1980) ‘17 Pueblos recuperan 211 cadáveres. Legionarios fusilados por falangistas 3 January 1980, issue 190; Interviú, NAVARRA 1936 (2) Los verdugos de la Cruzada’ Ireton Kathleen and Kovras Iosif (2011) ‘Non-apologies in Post-Conflict Settings:the Case of Post-Colonial Cyprus’, Time and Society (forthcoming) Klandermans, Bert (1997) The Social Psychology of Protest. Oxford: Blackwell Kovras Iosif and Loizides Neophytos (2011) ‘Delaying Truth Recovery for Missing Persons’, Nations and Nationalism, (forthcoming). Licklider, Roy (1995) ‘The Consequences of Negotiated Settlements in Civil Wars: 1945-1993’, The American Political Science Review, Vol.89 (3), pp. 681-690. Linz, Juan and Stepan, Alfred (1996) Problems of democratic Transition and Consolidation. Southern Europe, South America, and Post-Communist Europe, Baltimore:John Hopkins University Press. Loizides G. Neophytos (2009) ‘Elite Framing and Conflict Transformation in Turkey’, Parliamentary Affairs, Vol.62(2), pp. 278-297. Lustick, Ian (1993) Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank. Ithaca, NY: Cornell University Press. Lutz Ellen and Sikkink Kathryn (2001) ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’, Chicago Journal of International Law, Vol.2(1), pp.1-34. Mallinder Louise Maria (2008) Amnesty, Human Rights, and Political Transitions: Bridging the Peace and Justice Divide, Oxford: Hart Publishing. Martin Lisa and Sikkink Kathryn (1993) ‘U.S. Policy and Human Rights in Argentina and Guatemala, 1973-1980’," in Double-Edged Diplomacy: International Bargaining and Domestic Politics, edited by Peter Evans, Harold Jacobson, and Robert Putnam, Berkeley:University of California Press, pp:330-362. Mavratsas, Caesar (2003) Εθνική Οµοψυχία και Πολιτική Οµοφωνία. Η ατροφία της Ελληνοκυπριακής κοινωνίας των πολιτων στις απαρχες του 21ου αιώνα. Athens:Katarti. Mendeloff David (2004) ‘Truth-Seeking, Truth-Telling, and Post-Conflict Peacebuilding: Curbing the Enthusiasm?’. International Studies Review, Vol.6, pp. 355-380. Méndez E. Juan (2001) ‘National Reconciliation, Transnational Justice, and the International Criminal Court’, Ethics and International Affairs, Vol. 15(1), pp. 25-44. Minow Martha (2002) ‘Breaking the Cycles of Hatred’, In Minow Martha (ed.) Breaking the Cycles of Hatred: Memory, Law and Repair, pp. 16-75, Princeton, Princeton University Press. Misztal Barbara (2005) ‘Memory and Democracy’, American Behavioral Scientist, Vol.48(10), pp.1320-1338. Neier Aryeh (1999) ‘Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda’, in Carla Hesse and Robert Post (eds.), Human Rights in Political Transitions: Gettysburg to Bosnia , pp.39-51, New York, NY: Zone. 32     Newman Edward, Paris Roland and Richmond Oliver (2009) ‘Introduction’, in New Perspectives on Liberal Peacebuilding, Newman Edward, Roland Paris and Richmond Oliver (eds), United Nations University Press, pp.3-25. Papadakis, Yiannis (1993) ‘The Politics of Memory and Forgetting’, Journal of Mediterranean Studies, Vol3(1), pp.139-154 Putnam Robert (1988) ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’, International Organization, Vol.42(3), pp.427-460. Risse Thomas and Sikkink Kathryn (1999) ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’, in The Power of Human Rights: International Norms and Domestic Change, Risse Thomas, Ropp Steven and Kathryn Sikkink (eds), Cambridge: Cambridge University Press, pp.1-38. Rotberg Robert (2000) ‘Tryth Commissions and the Provision of Truth, Justice, and Reconciliation’, in Truth V. Justice. The Morality of Truth Commissions. Edited by Rotberg I. Robert and Thompson Dennis, pp. 3-21, Princeton, Princeton University Press. Ryan Lorraine (2009) ‘For Whom the Dominant Bell Tolls: The Suppression and Re- emergence of Republican Memory and Identity in Spain’, in Laura Rorato and Anna Saunders (eds.) The Essence and the Margin. National Identities and Collective Memories in Contemporary European Culture, Amsterdam: Rodopi, pp.119-134. Sandbu Martin (2010) ‘Chile Six Months since the Earthquake’, Financial Times, 28 August 2010. Sant Cassia, Paul (2005) Bodies of Evidence. Burial, Memory and the Recovery of Missing Persons in Cyprus. Oxford, Berghahn Books (Paperback Edition). Sikkink Kathryn and Walling Carrie Booth (2007) ‘The Impact of Human Rights Trials in Latin America’, Journal of Peace Research, Vol.44(4), pp.427-445. Scovazzi Tullio and Citroni Gabriela (2007) The Struggle Against Enforced disappearance and the 2007 UN Convention, Leiden:Martinus Nihoff Publishers Snyder Jack and Vinjamuri Leslie (2003) ‘Trials and Errors. Principle and Pragmatism in Strategies of International Justice’. International Security, Vol. 28(3), pp. 5-44. Sriram, Chandra Lekha (2004) Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition. New York, NY: Frank Cass. Stover Eric, Haglund William and Margaret Samuels (2003) ‘Exhumation of Mass Graves in Iraq Considerations for Forensic Investigations, Humanitarian Needs, and the Demands of Justice’, JAMA, 2003;290(5):663-666 Tetlock Philip E, (1998) ‘Social Psychology and World Politics’ in Daniel .T. Gilbert, Susan T. Fiske, and Gardner Linzey, Eds., The Handbook of Social Psychology, 4th ed, Vol. 2 (New York: Oxford University Press, 1998). Thoms Oskar, Ron Jamer and Paris Ronald (2008), ‘The Effects of Transitional Justice Mechanisms’, Center for International Policy Studies, Working Paper, April 2008 UNFICYP (2007), ‘The UN in Cyprus. An Inter-Communal Survey of Public Opinion by UNFICYP’, also available at: http://www.unficyp.org/nqcontent.cfm?a_id=1324 United Nations (2004) ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’, UN Security Council, S/2004/616/23 August 2004 33     Wilson Richard Ashby (2003) ‘Anthropological Studies on National Reconciliation Processes’, Anthropological Theory, Vol. 3(3), pp. 367-387. Table 1: Type of transition/settlement and truth recovery for disappeared/missing persons1         Sources: Peace Accords Matrix, Kroc Institute (http://peaceaccords.org), last accessed 2 April 2011) the Physical Integrity Rights Cingarelli and Richards Human Rights Data Set (http://ciri.binghamton.edu/) and the annual ‘Country Reports on Human Rights Practices’ of the US State Department. The first date in parentheses refers to the transition/peace agreement, the second to the implementation of the official truth seeking mechanism. 34     Diagram 1: Schematic presentation of the construction and maintenance of (hegemonic) silence                                                                                                                           1 The estimated number of remains still lying in unmarked mass graves ranges from 30,000 to 100,000 (Ferrándiz 2009) 2 This has been defined as ‘the array of processes designed to address systematic or widespread human rights violations committed during periods of state repression or armed conflict, where human rights violations are defined as extrajudicial killings, disappearances, torture, and arbitrary arrest and imprisonment’ (Olsen, Payne & Reiter 2010:805). 3 ‘Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and the results of the investigation and the fate of the disappeared person’. 4 Assisted by the International Commission on Missing Persons (ICMP), Croatia has established a mechanism to exhume, identify and return the disappeared to their relatives. 5 Peter Hall provides an interesting definition of learning: ‘a deliberate attempt to adjust the goals or techniques of policy in response to past experience and new information. Learning is indicated when policy changes as the result of such a process’ (Hall 1993:278). 6 It should be mentioned that framing is not an epiphenomenon. It is not merely a reflection of reality, but a simplification of a ‘perceived reality’ (Loizides 2009). In essence, framing is the deliberate effort of different social actors to produce, guide and maintain meaning, and, as such, it is important to examine how specific political problems are framed (Benford and Snow 2000:613). By examining the framing strategies of different actors, we can establish cause and effect relationships. 7 This includes research on the parliamentary debates, questions and laws related to the issue of desaparecidos in the Spanish Congreso de los Diputados (Lower House); interviews with members of the designated inter-ministerial commission that prepared the law on the Recovery of Historical Memory in 2007; and analysis of the electoral programmes of the major nation-wide political parties since the first democratic elections after transition in 1977. 8 Although there are scattered references in the 1970s and 1980s, there are only marginal provisions for the reparations of relatives. 9 I am grateful to Professor Santos Juliá for bringing this source of information to my attention. 10 Association for the Recovery of Historical Memory. 11  15 July 1974. 12  The most important Cypriot anti-colonial armed group active in the 1955-1959 period.   35                                                                                                                                                                                                                                                                                                                                                                 13 The ruling of the European Court of Human Rights in the fourth Interstate application of Cyprus v. Turkey (27581/94), 10 May 2001, constituted a landmark decision that influenced the policies of both Turkey and the RoC.       
work_4oocwaedmfadpkec4kab74dbve	----	http://www.globalbuddhism.org/8/usarski07pdf.htm Research Article Journal of Global Buddhism 10 (2009): 321 - 349 Toward A Buddhist Theory of Justice James Blumenthal Department of Philosophy 102A Hovland Hall Oregon State University Corvallis, Oregon 97331 U.S.A James.blumenthal@oregonstate.edu Copyright Notes: Digital copies of this work may be made and distributed provided no charge is made and no alteration is made to the content. Reproduction in any other format with the exception of a single copy for private study requires the written permission of the author. All enquries to: http://www.globalbuddhism.org mailto:James.blumenthal@oregonstate.edu� Journal of Global Buddhism / 321 ISSN 1527-6457 A r t i c l e Toward A Buddhist Theory of Justice James Blumenthal Department of Philosophy 102A Hovland Hall Oregon State University Corvallis, Oregon 97331 U.S.A James.blumenthal@oregonstate.edu Abstract For more than twenty years key thinkers of Engaged Buddhism have used terms like “justice” and “social justice” quite freely. Yet despite more sophisticated discussions of other philosophical topics, Engaged Buddhists have not clearly defined what they mean by the term justice. Given that the term is one with a rich philosophical history in the West and has no direct parallel in Buddhist thought, it is incumbent upon Engaged Buddhist theorists to define what they mean when they use this term if they are to engage in any sort of meaningful dialog on justice and related issues in the international community. In this paper, to illustrate how Engaged Buddhists might begin this important line of work, I would focus on two cases. First, I will discuss John Rawls' theory of "justice as fairness" and compare that with some traditional Buddhist ideas and explore potential Buddhist thinking, responses, and adaptations. Second, I will discuss a relatively new model known as restorative justice in opposition to the pervasive use of retributive models implemented around the globe and consider the ways that Buddhism seems to lend itself quite well to "restorative" models, particularly with regard to criminal justice. Both examples mailto:James.blumenthal@oregonstate.edu� Journal of Global Buddhism / 322 are merely beginning points for discussion used to illustrate how and why Engaged Buddhists ought to participate more directly in global philosophical discourse on justice. Introduction Theoretical developments in the Engaged Buddhist movement and scholarly analysis of these have advanced substantially in the past ten years. Sophisticated treatments of issues such as non-violence, rights, and responsibilities have helped to shape increasingly important developments in this area of Buddhist thought (for example, King, 2005). For more than twenty years key thinkers in the movement have used terms like “justice” and “social justice” quite freely.(1) Yet despite more sophisticated discussions of other philosophical topics (2), Engaged Buddhist thinkers have thus far not clearly defined what they mean by the term justice. Given that the term is one with a rich philosophical history in the West and has no direct parallel in Buddhist thought, it is incumbent upon Engaged Buddhist theorists to precisely define what they mean when they use this term if they are to contribute to, or engage in any sort of meaningful dialog on justice and related issues in the international community or on the world stage. (3 Rather than attempt to sketch a history of Western philosophical treatments of justice, a project outside the scope of this paper, I will take just two examples for exploration to illustrate how Engaged Buddhists might begin this important work. First, I would like to discuss some of the ideas of one of the most prominent twentieth century American thinkers on justice, John Rawls, and suggest potential preliminary Buddhist reflections on those ideas. The specific aspect of Rawls' thought that I will highlight concerns perspectives on distributive justice – the way to determine just means for distributing the goods deemed valuable by society and/or ) Obviously the topics of justice and social justice are enormous and ones that can only begin to be discussed in this paper. Thus, my primary purpose here is simply to highlight the need for further discussion among Engaged Buddhists on this critical philosophical topic that lies at the foundation of socially engaged Buddhism. Journal of Global Buddhism / 323 individuals in society. (4 These entire discussions are not intended to draw conclusions about a Buddhist theory of justice here, but are meant to help begin the process of Buddhists entering the larger philosophical dialog on justice – one that I think is critical for Buddhists in their own internal thinking process on these issues. It is also one that I believe Buddhists will have much of value to contribute to in the larger global philosophical conversations in the future. Given the rich heritage of thought on justice in the West tracing back to Plato and Aristotle and running throughout Judeao-Christian theological and philosophical discussions, this is really meant to be a first step in opening dialog and an opportunity for Engaged Buddhist theorists to begin to consider these issues in a more sophisticated way. ) The second dimension of justice theory I will discuss as an example concerns the form of justice employed by society or the state in response to criminal activity. Here I will bracket issues concerning legal systems, and focus on current conversations by those advocating a relatively new model known as restorative justice in opposition to the pervasive use of retributive models implemented around the globe. I will begin this paper by reflecting a bit on the method one leading Engaged Buddhist thinker has taken thus far and offer some comments on that. I highlight Sulak Sivaraksa because he has probably been the most explicit, but I think his method is reflective of that of many major engaged Buddhist thinkers today. After some brief comments on methodology, I will proceed to the two examples mentioned above from Western philosophical discourse on justice for consideration. First, I will briefly outline the highlights of Rawls' notions of "justice as fairness," and his method for achieving this fairness in the construction of society, from behind what he calls the "veil of ignorance." I will use this as a stepping off point to compare his ideas with the Buddhist principle of "equanimity" to see what sort of parallels may be found, what of utility may be construed in this comparative work, and begin to consider if Rawls' ideas on the topic might be a fruitful starting point for constructing a Buddhist theory of distributive justice. I will then proceed to our second example, the question of retributive vs Journal of Global Buddhism / 324 restorative justice, and offer some reflections on potential Buddhist responses and contributions to issues that arise in such discussions on just response to criminal activity. Finally, I will offer some concluding remarks. Buddhist Resources: Where to Start? Though Buddhism has not formally discussed justice in the way that it has been discussed in Western philosophical traditions, that is not to say that ideas and principals are not present and that there is not much to draw from in Buddhist literature, ethical discussions, Buddhist descriptions about the nature of reality and its ways of functioning, as well as our ways of knowing (that is, Buddhist epistemology or pramaa.navaada thought). Much is explicit; other dimensions can be abstracted in fruitful ways. In his book, Seeds of Peace: A Buddhist Vision for Renewing Society, leading Engaged Buddhist thinker and activist, Sulak Sivaraksa, proposes a number of innovative ways Buddhists can think about and act upon systemic problems that plague our contemporary societies and situations. He is an intellectual hero for many Engaged Buddhists, and his life's work is an embodiment of the Engaged Buddhist ideals he espouses. Much of his theoretical work revolves around the question of how we are to build a just society, one that for him, by definition, embodies the basic principles of Buddhism. What does a society that embodies, or at least engenders, pursuit of Buddhism's highest ideals look like? And how are we to go about attempting to create such a society, or at least move in that general direction? His method is to begin by going to traditional literature as our primary source of wisdom on such topics. (5 To create a Buddhist model of society, we must first look into traditional Buddhist notions of social order and social justice. It is worthwhile to begin by examining the Buddhist scriptures. ( ) Sivaraksa writes: 6 ) Journal of Global Buddhism / 325 I think this method of turning to ancient Buddhist texts and scriptures has important virtues. Buddhist canonized literature and the wisdom it contains can and ought to be a rich resource for this project. (7 Considering Theories of Justice: Two Examples ) That said, our reading of those traditional sources can be fruitfully complimented by two methodological considerations that may not have been fully utilized: a rigorous historical contextualization of the sources, and a sophisticated understanding of broader discussions about justice from outside of Buddhist traditions so as to see how Buddhist ideas might fit or shape those found in extra-traditional (that is, Western) sources. Historicism deepens our understanding of meaning in context such that the ideas can be more fruitfully translated into current situations. A broad and sophisticated understanding of ideas about justice, including those outside of the Buddhist tradition opens the possibility of gathering new insights and new avenues for framing traditional Buddhist ideas that may not otherwise occur to thinkers within the tradition. It also makes a reciprocal global conversation about justice much more viable. Though the first methodological consideration is critical, in the interest of space, and because this has been discussed exhaustively elsewhere, my focus in this paper will be on the second of the methodological considerations, explorations of the long philosophical discourse stemming from outside of the Buddhist traditions. 1) Rawls on Justice as Fairness: The Veil of Ignorance With this in mind, I would now like to turn to discuss John Rawls' notion of justice as fairness. John Rawls was one of the most important political philosophers of the twentieth century. He is perhaps most famous for his theoretical strategies for setting up a just society and the distribution of goods in society (in other words, "distributive justice"). ( 8 ) The concern for constructing a just society is one that Rawls shares with Sulak Sivaraksa and many other Engaged Buddhist thinkers, though as far as I know, he has no Buddhist background. Perhaps Buddhists can profit from considering the thinking of such a leading figure, or others like him, Journal of Global Buddhism / 326 who have inherited a tradition of philosophical analysis on justice that spans more than two thousand years. Rawls is interested in the guiding principals that one could use to construct a just society. What are these principles that can be used to construct a just society? Rawls begins to describe them as follows: They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. The principles so derived would then guide all further agreements in the construction of society. This process of deriving and utilizing principles of justice are referred to by his famous phrase, "justice as fairness". The question soon arises as to what it means to establish principles of justice from "an initial position of equality". Rawls proposes a hypothetical situation to do this where the free and rational persons constructing fair principles of justice would do so behind a "veil of ignorance". In other words, if one wants to determine the principles of justice for constructing a just society under Rawls' notion of "justice as fairness," then those involved in determining these principles must reflect and contribute to notions of what is fair and just from behind a veil of ignorance. Rawls describes this veil of ignorance as follows in his A Theory of Justice: Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstance (Rawls, 1971 and 1999: 10). Journal of Global Buddhism / 327 In other words, what kind of basic principles for constructing society would I advocate if I did not know whether I would personally be an African-American male, or born into extreme poverty, or a CEO of a multi-national corporation, or of extraordinary intelligence, or physically handicapped, or lesbian, or Buddhist, or Christian, or non-religious, etc.? If I stood behind a veil of ignorance with regard to my own personal position in the kind of society I would create, it is from this basis, that we can begin to discover the basic fair principles upon which to construct a just society according to Rawls. Thus, Rawls' notion of justice as fairness emerges from behind a "veil of ignorance," with the stated goal of creating, "rules [that] specify a system of cooperation designed to advance the good of those taking part in it" (Rawls, 1971 and 1999: 4). Obviously there is much more to say about Rawls' ideas, but I believe this is a good starting point for some Buddhist reflection on justice. Many Engaged Buddhists take as one of their basic premises that the construction of a just society and/or work towards the transformation/reconstruction of our current situation is and always has been an indelible part of the Buddhist project. (9 To suggest that Buddhism has been unconcerned with the organization of society is to ignore history. Traditionally Buddhism has seen personal salvation and social justice as interlocking components (Sivaraksa, 1992: 67). ) To quote Sulak Sivaraksa again, And Robert Thurman, among the first important American Engaged Buddhist thinkers wrote, The primary Buddhist position on social action is one of total activism, an unswerving commitment to complete self-transformation and complete world-transformation... [I]t is squarely in the center of all Buddhist traditions to bring basic principles to bear on actual contemporary problems to develop ethical, even political, guidelines for action (Thurman, 1985: 120). Journal of Global Buddhism / 328 But how does one determine the contents of a just society? It seems that Buddhists are going to want to construct a model for a society that embodies, engenders, and nurtures its most important ideals – ideals such as compassion, wisdom, mindfulness, patience, tolerance, and to as great a degree as possible – freedom from suffering, among others. These are the sorts of things that Buddhists might claim "advance the good," to borrow Rawlsian language. An ideal Buddhist society it seems would be one that encourages spiritual development and moral courage, broadly construed. That does not mean everybody being Buddhist, but perhaps everybody being encouraged to achieve their highest potential, with complete and utter freedom of religion or lack thereof. This is the sort of description we find in Engaged Buddhist writings on an ideal society for which to strive. (10 We see a great deal of application of these sorts of ideas, but not as much serious work on the theoretical ground of such ideas and the actions that ensue. This has the potential to lead to dangerous consequences where the door of activities happening in the name of Buddhism is thrown wide open. Other than appeals to textual authority, there has not been a solid philosophical grounding to these ideas presented. Much can be extrapolated from words attributed to the Buddha in canonical sources, either directly, or with a little molding, but even the Buddha said that we should examine and question all his words and not just accept them on faith because they was spoken by the Buddha. All the more so when ideas are being molded to suit a new context. Dignaaga and Dharmakiirti, the two most important Indian Buddhist thinkers on logic and epistemology argue that scripture alone, while providing a basis for faith and inspiration for practitioners, is not necessarily a source of valid knowledge (pramaa.na), though they would argue that at times it could be considered equivalent to a logical inference (anumaana), which is a form of valid knowledge. My point here is that according to tradition, its ideas must be grounded in or supported by reasoning. ) So the question again arises: how do Buddhists determine the contents of a just society? If the principles Engaged Buddhists Journal of Global Buddhism / 329 want to use to construct a just society are valid, they must be able to stand the test of rational analysis or be defensible by reasoning according to the Buddha and to Dignaaga and Dharmakiirti. This seems to be what Rawls is attempting to do in some respects. He wants to construct a just society on rationally grounded principles that are fair and in the best interest of individuals and society broadly construed - that they "advance the good of those taking part in it." (Rawls, 1971 and 1999, 4). His method for discerning those principles - utilizing the "veil of ignorance" with free and rational people at the helm - seems to me to be an attempt by Rawls to construct a society on the basis of a defensible rational standard. And this method might be one with appeal to Buddhists in a modified form. I think that we can construe some conceptual parallels in the ideas behind Rawls' method for discovering the fair principles of a just society and the Buddhist notion of equanimity, though admittedly they emerge out of quite different contexts. For Rawls, the method of getting at those principles is via free and rational people considering the construction of society from behind a veil of ignorance with regard to their particular positions in that society. The fairness that emerges is ideally one of maximum benefit to the group without either sacrificing consideration of the particular situation of any individual or privileging any individual over another. This "fairness," to use Rawls' term, is maintained by one not knowing their own particular position in society during the construction period, thus guaranteeing that the principles are constructed in a context free of bias. The Buddhist ideal of equanimity is found throughout the tradition's literature. In the Pali canon there are extensive discussions of equanimity as one of the four divine abodes (bramavihaaras) where the meditator trains in viewing and treating friends, neutral persons, and enemies the same. ( 11) The aim behind this practice is to generate an attitude of loving-kindness extended impartially to all living beings - to avoid favoritism or disregard for anybody. A profound compassion develops through this contemplation of the circumstances of loved ones, neutral people, and enemies. By Journal of Global Buddhism / 330 seeing how they are all similar in their suffering and that the basis of their actions – even those we see as harming us - is largely ignorance (avijjaa, avidyaa) and afflictive emotions (kle"sa), the result is a recognition that everybody would certainly want to be rid of such obscurations that cause so much suffering if they knew the way to do it. Thus, though the details may vary, the fundamental dilemma we face and the causes behind it are quite similar. The impartiality that is the ground of this principle of equanimity seems to have many parallels with the notion of fairness developed in Rawls' theory of justice. It aims to ethically engage without personal bias. In the Mahayana literature, discussions of equanimity are equally pervasive, particularly in relation to generating the Mahayana motivation of bodhicitta, the altruistic wish to achieve enlightenment in order to benefit others. ( 12 First I will explain the stages of meditation on compassion. Begin with meditation on equanimity. Cultivate impartiality for all sentient beings by clearing away attachment and hatred. All sentient beings want happiness and do not want suffering. Consider how they have all been my close friend hundreds of times since beginningless samsara. Since there is no basis for attachment to some and hatred for others, develop equanimity for all sentient beings. Meditation on equanimity begins with contemplation of a neutral person; then also contemplate those who are friends and enemies. ( ) This Mahayana aspiration is founded in part upon equanimity, the utterly impartial mind that refrains from any bias towards or discrimination between persons with regard to compassion for their situation and the wish to personally be of maximum benefit to them, which in Buddhism of course means benefit on the path to enlightenment. The eighth century Indian master Kamala"siila, for example, discusses the cultivation of compassion in light of cultivating equanimity in the fourth chapter of his [Middle] Stages of Meditation (Bhaavanaakrama, bsGom pa'i rim bar pa): 13 ) Journal of Global Buddhism / 331 The fairness which seeks to advance the good for all members of society striven for via Rawls' veil of ignorance and the unbiased concern for others that the Buddhist notion of equanimity embodies as it may be applied in a socio-political context both have similar goals. They both aim towards achieving maximum benefit to individuals in the world while simultaneously keeping the big picture of either society as a whole or the well-being of all sentient beings under consideration. With that said, there are differences. Rawls' primary aim in advocating for justice as fairness is not soteriological at its basis, whereas the Buddhist notion of equanimity does encompass that salvific goal at its foundation. Rawls seems to want to get at the secular principles upon which one can construct a just society. The principles themselves may or may not include soteriological goals, though presumably they would be supportive of them if there were members of society with such motivations. The Buddhist notion of equanimity seems to start with the soteriological goal and secondarily may find secular applications that are also virtuous. It seems to me that the two start with different presumptions. Rawls wants to begin on secular ground but not neglect the spiritual aspirations of certain members of society. A Buddhist application of equanimity to issues of the creation of a just society would seem to begin on religious grounds, but in social-political application would not want to neglect the more secular needs and aspirations of both non-religious and religious members of society or the particular aspirations of those of other faiths. Does Rawls' method here resonate with an adoption of the Buddhist idea of equanimity as a principal ground for a Buddhist construction of a just society? Can a Buddhist fruitfully adapt Rawls' method so that it would be inclusive of the kinds of ideas and principles that would be of central importance to Buddhists? Can Rawls' "veil of ignorance" be "Buddha-ized"? If so, in what ways would Buddhists want to use Rawls as a starting point? What sort of changes would we want to make? Is there something contra-Buddhist if the guiding principle for Rawls' method is self-interest, even if the end goal is to use self interest to facilitate the Journal of Global Buddhism / 332 interest of all? If self-interest is utilized merely as a tool for coming to conclusions that serve the wellbeing of others, is there still a fundamental flaw? When combined with the veil of ignorance, isn't it just a skillful way of approaching the construction of societal rules with equanimity for the baring they may have on all members of society? Might this be a particularly skillful way for unenlightened people to go about this project? If a Buddhist were to want to come up with an adaptation that would appeal broadly to both Buddhists and non-Buddhists, then we need to think things through very carefully. For example, I think Buddhists would want to ground the Rawls' "free and rational" persons who act behind a veil of ignorance in some virtuous predispositions or considerations. Rawls seems to have confidence in an inherent tendency among such persons to engage in such a way simply by virtue of their intelligence, rationality, and freedom. I think a Buddhist may want to be more explicit. Rawls' model tends to rely on the enlightened self-interest of those behind the veil. I would imagine that a Buddhist theory of justice would want to ensure a profound and pervasive compassionate attitude as the ground upon which a just society would be built. Enlightened self-interest would be nice, but a Buddhist might have reason to doubt that actual enlightened application, even given the parameters Rawls has set up, would follow suit. Thus, perhaps in addition to being free and rational, that those behind the veil might supplement or replace the enlightened self-interest implicit in Rawls' account with explicit imperative to consider the role compassion for the suffering of individuals might play at every turn in constructing or adjudicating just principles. Rawls may consider this to be implicit, but making it explicit could be important for Buddhists. The parameters of such an imperative would need to be thoroughly considered. If there is one virtue that guides Buddhist ethics more than any other, it would be compassion for the suffering of living beings. Any Buddhist vision for a just society must both be guided by compassion in its formation and nurture its further cultivation in its application. Thus, perhaps one modification of Rawls' theory for Buddhists might be that those free and rational beings be Journal of Global Buddhism / 333 explicitly required to consider compassionately the potential suffering in various scenarios in working from behind the veil of ignorance so as to explicitly consider ways that social structures do or do not contribute to such suffering. This is just one consideration among many. My purpose here is not to solve the problem, but to raise some questions with this example. 2) Retributive vs. Restorative Justice: A Buddhist Perspective I would like to take a brief look at a second example and second dimension to philosophical discourse on justice, that of criminal justice. How might or ought a Buddhist or Buddhist society deal with crime? What might Buddhism stand to gain from participation in a larger global discourse on responses to criminal activity? And what might Buddhism have to offer to a broader global discourse on the topic? Generally speaking, the approach of most nations today toward crime is to attempt to control it, largely through dispensing punitive measures against those who violate the state's laws. This is seen as fulfilling a dual purpose: deterring future crime and enacting justice on the perpetrator of the crime already committed. In the case of prison-time as punishment, it may additionally be considered beneficial in that it takes a potentially dangerous individual out of circulation from society, thus making the society safer. This mode of justice in its varying forms is what is known in philosophical discourse as retributive justice; it enacts retribution on criminals for crimes committed. Retribution, whether that be the death penalty for murder, or extensive jail time for stealing or other crimes, is viewed as enacting justice on the criminal. They get what they deserve. Without extreme forms of punishment, its effectiveness with regard to deterrence is highly questionable. I believe that the ethics of this sort of punitive or retributive approach to justice would, in most cases, be equally questionable from a Buddhist perspective. I will discuss this shortly below. An emerging response to retributivist forms of justice, both in philosophical circles and actual implementation in select cases, is a growing movement with nuanced variations that is referred to with the over-arching label of "restorative justice". I think that a Journal of Global Buddhism / 334 Buddhist approach might resonate well with many of the ideas and approaches circulating in restorative justice discourse and that Buddhists might have important contributions to make to this discourse as well. Restorative justice aims to restore well-being and heal the wounds inflicted by the crime through a variety of means. Rather than view offenders and victims as adversaries in criminal proceedings, open communication that sees them as partners in a healing process tends to be a much more effective perspective according to advocates for restorative justice. One of the prime examples often cited for this process was the use of the Truth and Reconciliation Commission in South Africa in the wake of Apartheid which gave voice and ultimately greater comfort and healing to both victims and perpetrators. Dullah Omar, former South African Minister of Justice explained that the commission was a "necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation." ( 14 Before proceeding further in discussion of restorative justice from a Buddhist perspective, I would like to briefly summarize the plot of one particular sutta, the Angulimaala Sutta, from which I believe much can be gleaned regarding Buddhist perspectives on some of these issues. The sutta recounts the story of the encounter between the Buddha and Angulimaala, a serial killer who had been ) There are a variety of shapes and forms restorative justice might take in varied circumstances. No advocate of restorative justice views it as a one-size-fits-all solution. While prison may be a dimension to it in some cases for example, advocates of restorative justice would want to see a wholesale prison reform in most circumstances. Prison would become a place that not only protects society from dangerous individuals, but would also be a place where the incarcerated are given the opportunity and encouraged to use the time for a healing and transformative process. It would be seen as an opportunity rather than punishment. Working out the details of the shapes this might take would be a major project, but the end result would be a facility that fosters positive rather than the sort of negative transformation of inmates, as is so often the case in prisons around the world today. Journal of Global Buddhism / 335 terrorizing the local countryside in the state of Kosala by going on a murderous rampage, earning his name (Angulimaala, Finger-Garland) by wearing a garland around his neck made of the fingers of his victims. One morning, as the Buddha went on his alms round, despite repeated warnings about Angulimaala's presence in the area, he encountered him on the road. The Buddha kept walking as Angulimaala ran after him, intending to kill him. The Buddha continued to walk calmly as he was chased, but due to his supernatural powers, no matter how fast Angulimaala chased after him, he could not catch up. Finally, Angulimaala shouted at the Buddha to, "Stop," to which the Buddha replied, "I have stopped, Angulimaala, you stop too." A confused Angulimaala goes on to question the Buddha's statement to which he replies, "Angulimaala, I have stopped forever, I abstain from violence toward living beings; but you have no restraint towards things that live: That is why I have stopped and you have not." (Nanamoli, Bhikkhu and Bhikkhu Bodhi [Trans.], 1995: 771). Upon hearing this, Angulimaala was immediately struck by the Buddha's wisdom and became his disciple, requesting and receiving ordination as a bhikkhu at once. Upon hearing that Angulimaala was with the Buddha in Jeta's Grove, King Pasenadi led a cavalry of 500 men to go arrest Angulimaala. When the king arrived, he had an audience with the Buddha and respectfully asked about the whereabouts of Angulimaala. The Buddha asked the king what he would do if Angulimaala were transformed and now leading the life of a virtuous bhikkhu of good character. The king replied that he would honor and pay homage to him in an assortment of ways. The Buddha then pointed out the transformed Angulimaala, former serial killer, to the king who was amazed. The king, indeed, paid homage to Angulimaala. It was not long after that, that upon further teachings from the Buddha that Angulimaala achieved arhatship. The following morning, when on his alms-collecting rounds, Angulimaala was attacked by townspeople who, knowing of his previous deeds as the killer of their kinsmen, threw various objects Journal of Global Buddhism / 336 at him, drawing blood and breaking his begging bowl. When he discussed this with the Buddha, the Buddha told him to bear it, for he was experiencing the results of previous karmic deeds. The sutta closes with a verse recitation by Angulimaala rejoicing in his transformation due to following the teachings of the Buddha. Given my very cursory remarks about restorative justice, some basics of Buddhist philosophy, and in light of some insights we might glean from the Angulimaala Sutta, I would like to make some very preliminary comments about Buddhism and restorative justice. First, until we are all enlightened, there will probably be a need for laws. How ought a Buddhist or Buddhist society deal with crime, with the violation of laws? Most nations, modern and ancient have utilized some form of retributive justice – to exact some form of retribution on the violator of the laws. Some have argued that it is just in and of itself for people to be punished for violation of laws agreed upon by the community. Others have argued it serves as a deterrent. I don't think either of these are particularly "Buddhist" ways of thinking or compelling arguments from a Buddhist perspective. Punitive justice entails exacting harm on criminals. Causing unnecessary harm for anybody, even a criminal, seems to me to run utterly contrary to the most fundamental ideas of Buddhism. After all, did the Buddha not leave the palace in search for a cure for suffering? Are Buddhists not charged with having compassion for all living beings, even the worst among them? It is common at the ceremony for taking refuge in the Three Jewels that new Buddhists are urged to do their best to avoid causing harm or suffering to all living beings. It is hard to imagine the Buddha advocating the overt execution of suffering on individuals out of revenge or spite, or in the name of some notion of justice. Even the utilitarian argument that claims that punishment as deterrence to greater and more future crimes and suffering seems to have logical holes if one were to presume some Buddhist philosophical basics, like the notion of dependent-arising. Nothing arises without dependence on related causes and conditions. Effects have a direct relation to causes. Just as it is counter-intuitive on a large scale to bring lasting peace through war and violent means, so too is it Journal of Global Buddhism / 337 counter-intuitive, from a Buddhist perspective, to think that threats of extreme punishment will undermine the root causes of law-breaking in society. There may be relative or short-term success, but since the root causes will not be destroyed, it would be deluded to think that deterrence would actually be successful at eradicating crime on a large scale. And given the millennia-long experiment with this method and the lack of decline in crime, this Buddhist analysis seems to be proven correct. Rather than retributive or punitive justice, I think the Buddha would probably advocate a form of this new model of justice known as restorative justice in this respect and I think this can, in part, be gleaned from the Angulimaala Sutta. It does not seem that the Buddha, or the tradition as it represents itself in the Angulimaala Sutta, advocates a retributive or punitive form of justice. King Pasenadi does not see any reason to exact punishment upon Angulimaala for revenge, retribution, to create a deterrent to future crime, or for any other reason. This is due to Angulimaala's transformation into a virtuous and sincere bhikkhu who was fully reformed and posed no threat to society. Given Angulimaala's present virtuous state as a contributing member of society, to exact punishment would not only be unnecessary; but also be an immoral cause of suffering. Buddhism is first and foremost concerned with alleviating suffering and eradicating the roots of suffering. I think that a Buddhist take on the issue of societal responses to crime would be to advocate for some restorative model that would aim to both create a resolution and peace between the criminal and victim, and would aim to heal the root cause of the crime and the damage inflicted in its wake. In a sense, Buddhism would ideally like to see criminals transformed, as Angulimaala was. This further dimension of reformation is perhaps an area where Buddhists could both learn from those with more experience in restorative models and offer unique contributions as well. (15 Karma is, of course, a dimension to any Buddhist theorizing on justice that needs to be considered. Doesn't karma, although meant to be a descriptive doctrine aimed at explaining the effect of ) Journal of Global Buddhism / 338 intentions and actions of body, speech, and mind on our future experiences and states of consciousness, also describe the negative consequences of unethical behavior from a Buddhist perspective? One might ask if there is any need for state imposed punishment at all if one holds the idea of karma. Isn't karma the Buddhist theory of justice? Teachings on karma have been used successfully and probably ought to continue to be used as a motivator and teaching device on ethical behavior. Its philosophical function is to explain the causal relationship between our intentional actions and our consciousness and its future experiences rather than specifically to denote a form of reward and punishment. Technically it is not at all about reward and punishment whether under the control of a third party god , or not. It is simply an explanation of one dimension of causality from a Buddhist perspective. If karma were taken to be the beginning and end of discussion of a Buddhist theory of justice, that karma takes care of everything with regard to justice, then the Buddhist position would be a quite fatalist or determinist doctrine. It would undermine attempts to create a society that is better for the welfare of all (as is the engaged Buddhists' overarching project) because karma would be the sole factor determining outcomes. Perhaps more importantly, it might even suggest that efforts towards one's own transformation and efforts to become enlightened would be pointless. If future experience is entirely determined by past karma, it would undermine any real agency, which in turn would undermine karma doctrine itself. I think this reflects a partial understanding of karma that misses the key component of agency that really is at the heart of karma theory in the first place. Though there are teachings on the purification of karma (for example, Tsongkhapa's Byang chub lam rim chen mo [The Great Treatise on the Stage of the Path to Enlightenment]), generally speaking it is taught in texts like Vasubandhu's Abhidharmako"sa (Treasury of Knowledge, Chapter 4) that individuals will infallibly experience the fruits of their karmic acts at some future point. We see this illustrated in the Angulimaala Sutta when, even after achieving arhatship, Angulimaala is stoned by the townspeople and the Buddha tells him to bear it, for it is the fruit of his previous Journal of Global Buddhism / 339 negative karma. But such a display of "justice" made manifest is not, from the Buddhist perspective, reason not to engage in what contemporary writers might refer to as restorative models of justice. Angulimaala still strove for spiritual restoration, despite the inevitability of his karma. His restraint at this point was essentially an act of restorative work in that he was, in affect, hearing the grievances of those who suffered in the wake of his crime, an acknowledgement of his wrong doing, an expression of regret, and an apology. A Buddhist might still aim to establish a system to help to reform and heal the criminal as well as the victims out of compassion for the suffering of all. Though it may not have been called for in Angulimaala's case due to his rather remarkably rapid transformation, that is not to say that prison, appropriately conceived and implemented, might not be necessary for yet-to-be-reformed criminals. (16) Fundamental to a Buddhist approach to crime must be a recognition of an individual's capacity to transform (as Angulimaala did). I would think that the (Buddhist influenced [ 17 It seems to me that to seek punitive retribution for a crime committed is an intention and act grounded in anger, one of the three poisons (greed, anger, and ignorance) that keep individuals rooted in the sufferings of samsara according to Buddhism. This is not to say that Buddhists might not advocate for a form of imprisonment for some crimes for the dual purpose of the safety of society and a period of reformation/restoration/transformation of the prisoner. But contrary to most prison systems today that are so horrendous that criminals usually come out worse than when they went in, I believe a Buddhist model would emphasize healing the root causes behind the crime, some of which are related to material conditions in the world, but more importantly for this aspect of our discussion, are related to the mental and psychological states (or one might say, 'karmic predispositions') of the criminal. David Loy pointed out ] ) state would want to want to encourage some sort of transformation through the implementation of various programs, etc. "Punishment" ought to include measures that engender such transformation. This Buddhist-type thinking is all in line with restorative justice thinking as well. Journal of Global Buddhism / 340 quite insightfully that, The Buddhist approach to punishment, like any other approach, cannot really be separated from its understanding of human psychology and its vision of human possibility (Loy, 2001: 81). For the Buddhist, there is both a faith in the possibility of transformation and a responsibility to work towards it. I think this sentiment can be applied on secular grounds as well. In most countries this would probably take the shape of some sort of serious prison reform where the focus would be on the psychological rejuvenation of the criminal and the creation of a process for healing any antipathy between the criminal and the victim. The particular details of what such a system would look like in application are beyond the scope of this article. When I speak about potential Buddhist approaches to criminal justice, I am speaking to a large degree in the abstract. I am not speaking about the ways specific Buddhist countries or countries where the vast majority of the populations are Buddhist ought to implement specifics, but more theoretically about the kind of ideals a Buddhist, group of Buddhists, or Buddhist society might strive to achieve. Restorative justice encompasses a variety of ideas, perspectives, and methods (see Johnstone, 2003). As a general designator for an over-arching approach to criminal justice, I think quite a bit resonates with they type of approach Buddhists might want to take. The details of the shape it might one day take are the subject of lengthy and serious future considerations. I imagine that even within Buddhism or a Buddhist approach to these questions, the answers might take a variety of forms and context-specific adaptations depending on cultures, individuals, historical contexts, etc. Concluding Remarks Obviously these reflections here are merely preliminary. My aim is not so much to draw conclusions, as to open discussion. The primary point that I would like to make is not that Buddhists ought to Journal of Global Buddhism / 341 adopt a modification of Rawls' theory or that we identify ourselves as advocates of restorative justice (though I do think there are good arguments for the latter). I do not think that Buddhists necessarily need to fit their ideas into the structure – however modified – of philosophical positions alien to the tradition. Rather, my primary point, with the illustrations above, is that if we are going to engage in justice discourse at all, we ought to do it well. For when we use the term "justice," to some degree we already are attempting to fit into a philosophical category not entirely indigenous to Buddhism. Buddhists eager to take part in international dialog on social change, ought to begin a serious consideration of these sorts of philosophical topics, and we ought to equip ourselves to more fully engage in a global discourse on these philosophical and practical issues. It works to the benefit of the Buddhist tradition, moving forward as a global religion in the twenty-first century. When we isolate ourselves from a larger conversation, we deprive both ourselves and our potential conversation partners. (18 When Buddhists use technical terms from traditions of thought other than their own without clarity of its place in a larger philosophical dialog, it looks as if we are making ungrounded or unsubstantiated claims. Traditionally Buddhist philosophers did not isolate themselves from larger pan-Indian philosophical conversations, nor did they simply make unsubstantiated claims or assertions without considered reasoning behind them. For thinkers like Dignaaga and Dharmakiirti, ascent to scriptural authority is simply not sufficient. As we begin a new century and a new global Buddhism, it is imperative that Buddhists are able to articulate their views and converse with others on the world stage. If we are to have any meaningful impact in creating the sort of world we, as Engaged Buddhists, envision, then it must begin with a thorough and rigorous foundation. ) Notes 1. See for example Buddhadhasa Bhikkhu (1989) Sivaraksa (1992, 1999), Winer (2003) on Maha Ghosananda, Sangharakshita (1986) Journal of Global Buddhism / 342 and Blumenthal (1995) on Ambedkar, and His Holiness the Dalai Lama (2008). Dunne (1999) engages the topic with some technical terminology that is familiar to philosophers and religious studies scholars, though he does not engage in comparative work. King (2005) articulates Buddhist ideas about justice in some detail. See note 4, below. 2 . The philosophical foundations for Buddhist ideas on non-violence, responsibilities, and a host of other ethical issues have been treated extensively. See for example Sivaraksa (1992), Cabezón (1996), Nhat Hanh (1987, 1999), Harvey (2000), Samdong Rinpoche (2006), etc. 3. King (2005) begins the important work of articulating an Engaged Buddhist social ethics and ethical theory. In the process, she insightfully begins to address and analyze the questions of justice and social justice in the Engaged Buddhist context. She interviewed some leading thinkers from the movement, such as Sulak Sivaraksa and Samdong Rinpoche, on justice, and analyzes some important comments made by Geshe Sopa and Ven. Dhammananda in Israel concerning justice for Jews vis á vis the Holocaust and Israelis and Palestinians concerning their current conflict. All of this is an important contribution to a critical discussion, but it is largely carried out without reference to long history of philosophical discourse on justice from the Western canon from which the idea derives. 4. "Goods" is construed broadly here. It is not limited to material resources, but includes rights such as privacy, the right to vote, etc., legal constructs, access to "goods" such as education, medical care, etc. 5 . Christopher Queen (1996), drawing on theoretical insights developed by Clifford Geertz (1968), discusses the process by which Engaged Buddhists have engaged in a sort of "scripturalism" in returning to traditional and canonical texts and sources of religious authority, yet with innovative theological interpretations that render them newly relevant for contemporary circumstances, particularly in Journal of Global Buddhism / 343 times of perceived crisis. 6. Sulak Sivaraksa (1992: 103). Walpola Rahula (1985: 104) echoes this sentiment when he writes: "The Buddha did not take life out of the context of its social and economic background; he looked at it as a whole, in all its social, economic, and political aspects. His teaching on ethical, spiritual and philosophical problems are fairly well known. But little is known, particularly in the West, about his teaching on social, economic, and political matters. Yet there are numerous discourses dealing with these scattered throughout the ancient Buddhist texts." Others such as Samdong Rinpoche, Thich Nhat Hanh, His Holiness the Dalai Lama, and Buddhadasa exemplify this sentiment as they repeatedly turn to scriptural sources as evidence to support their Buddhist ideas about justice. 7. Gregory Schopen (1997) has persuasively argued for the use of non-textual sources in Buddhist Studies, particularly in attempting to historically decipher the contours of Buddhism on the ground in India in its earliest periods. There may well be good reason to make use of non-textual sources to help make some philosophical arguments regarding justice. However, my hunch is that sutta/sutra sources and philosophical treatises by early masters will probably prove to be more fruitful resources for this project since the explicit purpose is not a historical deciphering of ancient Buddhism on the ground. 8. Any discussion of the just distribution of goods will also entail implications for issues in criminal justice as well. This will be discussed further in the following section. 9. Some scholars and thinkers within the traditions have argued the opposite, that the contemporary Engaged Buddhist movements represent a dramatic shift in Buddhist thinking. See for example Queen (1996: 1-44, 2000: 1-29), the discussion of Joanna Macy in Kaza (2000 160), and Litsch (2000: 423). Perhaps the clearest example of this side of the question of whether Buddhism has always had an engaged component or whether it is a new innovation Journal of Global Buddhism / 344 (both recent and highly influenced by Buddhism's recent encounters with the West) is summarized by Christopher Queen (2000: 1-2) when he writes in his, "Introduction: A New Buddhism," that, "I shall argue that the general pattern of belief and practice that has come to be called 'engaged Buddhism' is unprecedented, and thus tantamount to a new chapter in the history of the tradition. As a style of ethical practice, engaged Buddhism may be seen as a new paradigm of Buddhist liberation. Invoking traditional terminology, Buddhists might call it a "new vehicle" – or Navayana… - or a fourth yana in the evolution of the dharma." Thomas Yarnall (2003) summarizes and critically analyzes both sides of this debate, while infusing a degree of theoretical sophistication that has been lacking in much engaged Buddhist scholarship. Among the many insights found in his analysis, Yarnall, while recognizing important contributions made in Queen's argument that Engaged Buddhism fundamentally constitutes a new vehicle (yana) of Buddhim, he criticizes the modernist and orientalist tendencies he finds in the perspective of Queen and like-minded thinkers. 10. See for example Hanh (1987), Sivaraksa (1992), Gyatso (1999a and 2008), etc. 11 . The four brahmavihaaras are loving-kindness, compassion, sympathetic joy, and equanimity. See Buddhaghosa. Visuddhimagga (The Path of Purification). Pp. 288-319. 12. See for example, Tsongkhapa. Byang chub lam rim chen mo (The Great Treatise on the Stages of the Path to Enlightenment). 13. Kamala"siila. Bhaavanaakrama II.4. de la snying rje bsgom pa'i rim pa de dang po 'jug pa nas brtsams te brjod par bya'o/ thog mar re zhig btang snyoms bsgoms pas sems can thams cad la rjes su chags pa dang/ khong khro ba bsal te snyoms pa'i sems nyid bsgrub par bya'o/ sems can thams cad bde ba ni 'dod sdug bsngal ba ni mi 'dod la/ thog ma med pa can gyi 'khor ban a sems can gang lan brgyar dag gi gnyen du ma gyur pa de gang yang med do snyam du yongs su bsam zhing// 'di la byed brag ci zhig yod na la la la ni rjes su chags/ la la la ni khong khro bar gyur bas/ de lta bas na bdag gis sems can Journal of Global Buddhism / 345 thams cad la sems snyoms pa nyid du bya'o snyam du de ltar yid la bya zhing bar ma'i phyogs nas brtsams te/ mdza' bshes dang dgra la yang sems snyoms pa nyid du bsgom mo/ 14 . Truth and Reconcilliation Commission homepage, http://www.doj.gov.za/trc/ 6/1/2009. 15. One such unique contribution that immediately comes to mind is the success of the Vipassana retreats held in prisons by S.N. Goenke. For an excellent documentary on this, see Menahemi and Ariel (1997). 16. The specifics of what shape such a reform-oriented prison would take is, of course, an enormous topic that is outside of the scope of this paper. 17. Ideally it would not require an explicit "Buddhist" influence on the state. By participating in a global conversation, Buddhists can have an impact without an exceedingly imposing use of Buddhist language. The Dalai Lama is quite skillful at this in his recent book, Ethics for the New Millenium, which discusses his views on ethics in purely secular language. 18. This isolationism has been a longstanding problem of Buddhist Studies within the larger disciplines of Religious Studies and Philosophy. Those working in Buddhist epistemology and logic have made great strides in this regard in the past ten to fifteen years. Cited Sources BLUMENTHAL, JAMES (1995) "Buddhism Among India's Ex-Untouchables: Implications of Conversion and the Use of Buddhist Ideology as a Model for Social Justice". M.A. Thesis, University of Wisconsin – Madison. BUDDHADHASA BHIKKHU (1989) Me and Mine: Selected Essays of Bhikkhu Buddhadasa. Trans. Donald K. Swearer. Albany: State University of New York Press. http://www.doj.gov.za/trc/� Journal of Global Buddhism / 346 BUDDHAGHOSA, BHADANTACARIYA (trans. Bhikkhu ~Naamoli ) (1991 edition). The Path of Purification (Visuddhimagga). Seattle: BPS Pariyati Editions. CABEZÓN, JOSÉ (1996). "Buddhist Principles in the Tibetan Liberation Movement". Pp. 295-320. In C. Queen and S. King (eds.) Engaged Buddhism: Buddhist Liberation Movements in Asia. Albany: State University of New York Press. CHAPPELL, DAVID (Ed.) (1999) Buddhist Peacework: Creating Cultures of Peace. Boston: Wisdom Publications. DUNNE, JOHN D (2000). "On Essences, Goals, and Social Justice: An Exercise in Buddhist Theology." Pp. 275-292. In R. Jackson and J. Makransky (eds.) Buddhist Theology: Critical Reflections by Contemporary Buddhist Scholars. London: Curzon Press. GEERTZ, CLIFFORD (1968) Islam Observed: Religious Development in Morocco and Indonesia. Chicago: University of Chicago Press. GYATSO, TENZIN (DALAI LAMA XIV) (1999a). "Dialogue on Religion and Peace". Pp. 189-198 in D.W. Chappell (ed.) In Buddhist Peacework: Creating Cultures of Peace. Boston: Wisdom Publications. ———(1999b). Ethics For a New Millennium. New York: Penguin Putnam. ——— (2008). "Public Lectures on Santideva's Guide to the Bodhisattva's Way of Life and Kamalala's Stages of Meditation". Madison, WI. July 18-24, 2008. HADLEY, MICHAEL L. (Ed.) (2001) The Spiritual Roots of Restorative Justice. Albany: State University of New York Press. HARVEY, PETER (2000) Introduction to Buddhist Ethics. Cambridge: Cambridge University Press. Journal of Global Buddhism / 347 JOHNSTONE, JERRY (Ed.) (2003) A Restorative Justice Reader: Texts, Sources, and Context. Portland: Willan Publishing. KAMALA"SIILA. BHAAVANAAKRAMA (bsGom pa'i rim bar pa, [Middle] Stages of Meditation). P5311, Vol. 102. KAZA, STEPHANIE (2000) "To Save All Beings: Buddhist Environmental Activism". Pp.159-183 in Christopher Queen (ed.) Engaged Buddhism in the West. Boston: Wisdom Publications. KING, SALLY (2005) Being Benevolence: The Social Ethics of Engaged Buddhism. Honolulu: University of Hawaii Press. LITSCH, FRANZ-JOHANNES (2000) "Engaged Buddhism in German-Speaking Europe." Pp. 423-445 in Christopher Queen (ed.) Engaged Buddhism in the West. Boston: Wisdom Publications. LOY, DAVID R. (2001). "Healing Justice: A Buddhist Perspective". Pp. 81-98 in M.L. Hadley (ed.) The Spiritual Roots of Restorative Justice. Albany: State University of New York Press. MENAHEMI, AYLET & EILONA ARIEL (Producers and Directors) (1997) Doing Time, Doing Vipassana (Dharma Giri, India: Vipassana Research Institute). ~NAAMOLI, BHIKKHU & BHIKKHU BODHI (Trans.) (1995) The Middle Discourses of the Buddha: A Translation of the Majjhima Nikaaya. Boston: Wisdom Publications. NHAT HANH (1987) Interbeing: Fourteen Guidelines for Engaged Buddhism. Berkeley: Parallax Press. ——— (1999) "Ahimsa: The Path of Harmlessness". Pp. 155-164. In D. Chappell (Ed.) Buddhist Peacework: Creating Cultures of Peace. Boston: Wisdom Publications. QUEEN, CHRISTOPHER (1996) "Introduction: The Shapes and Sources of Engaged Buddhism" Pp. 1-44 in Queen, Christopher and Journal of Global Buddhism / 348 Sally King (eds.). Engaged Buddhism: Buddhist Liberation Movements in Asia. Albany: State University of New York Press. ——— (2000) "Introduction: A New Buddhism" Pp. 1-33. In Queen, Christopher (ed.). Engaged Buddhism in the West. Boston: Wisdom Publications. QUEEN, CHRISTOPHER, CHARLES PREBISH, & DAMIEN KEOWN (eds.). (2003) Action Dharma: New Studies in Engaged Buddhism. London: RoutledgeCurzon. RAHULA, WALPOLA (1985) "The Social Teachings of the Buddha". Pp. 103-110. In F. Eppsteiner (Ed.) The Path of Compassion: Writings on Socially Engaged Buddhism. Berkeley: Parallax Press. RAWLS, JOHN (1971, 1999 revised edition). A Theory of Justice. Cambridge: The Belknap Press of Harvard University Press. ——— (2001) Justice as Fairness: A Restatement. Cambridge: The Belknap Press of Harvard University Press. SAMDHONG RINPOCHE (2006) Uncompromising Truth for a Compromised World: Tibetan Buddhism and Today's World. Bloomington: World Wisdom Inc. SANGHARAKSHITA (1986). Ambedkar and Buddhism. Glasgow: Windhorse Publications. SCHOPEN, GREGORY (1997). "Archeology and Protestant Presuppositions in the Study of Indian Buddhism". Pp. 1-22. In G. Schopen. Bones, Stones, and Buddhist Monks: Collected Papers on the Archaeology, Epigraphy, and Texts of Monastic Buddhism in India. Honolulu: University of Hawaii Press. SIVARAKSA, SULAK (1992) Seeds of Peace: A Buddhist Vision for Renewing Society. Berkeley: Parallax Press. ——— (1999) "Buddhism and a Culture of Peace." Pp. 39-46 in D. Chappell (Ed.) Buddhist Peacework: Creating Cultures of Peace. Journal of Global Buddhism / 349 Boston: Wisdom Publications. THURMAN, ROBERT A. F. (1985) "Nagarjuna's Guidelines for Buddhist Social Action." Pp. 120-144 in F. Eppsteiner (Ed.) The Path of Compassion: Writings on Socially Engaged Buddhism. Berkeley: Parallax Press. Truth and Reconcilliation Commission homepage [internet]. Available from http://www.doj.gov.za/trc/ [accessed June 5, 2009] TSONG-KHA-PA. Byang chub lam rim chen mo (Great Treatise on the Stage of the Path to Enlightenment). P6001, Vol. 152. VASUBHANDHU (1923, 1931) ABHIDHARMKO"SABHAA"SYA (Chos mngon paiI mdzod kyi bshad pa). P5591. Vol. 104. Translation by Louis de La Vallée Poussin, L"Abhidharmakoßa de Vasubandhu. Paris: Geunther.. WEINER, MATHEW (2003) "Maha Ghosananda as a Contemplative Social Activist." Pp. 110-125 in C. Queen, C. Prebish, and D. Keown (eds.) Action Dharma: New Studies in Engaged Buddhism. London: RoutledgeCurzon. YARNALL, THOMAS FREEMAN (2003), “Engaged Buddhism: New or Improved? Made in the USA of Asian Materials.” Pp. 286-344 in C. Queen, C. Prebish, and D. (eds.), Action Dharma: New Studies in Engaged Buddhism. London: RoutledgeCurzon. http://www.doj.gov.za/trc/� 
work_4oqwvjzxr5f5zkyl3prdrb6mai	----	Defending the State, Defending the Religion 115 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 SECURING THE STATE, DEFENDING THE RELIGION An Analysis of Boelan Sabit Newspaper Publications (December 1945-January 1946) Muhammad Yuanda Zara Yogyakarta State University – Indonesia | m.yuanda@uny.ac.id Abstract: This article discusses how the narration of Islamic- ness and Indonesian-ness in the midst of the war of independence was represented in an Islamic newspaper called Boelan Sabit. The period under study is a month (December 15, 1945-January 14, 1946). Using the historical method, the research findings revealed that Boelan Sabit newspaper incessantly called for Indonesian Muslims to defend Indonesian independence from Dutch colonialism and British occupation based on both Islam and nationalism. The newspaper ensured its Muslim readers that the period of independence was a time to strengthen the two identities inherent in them, namely a son of Indonesia and a Muslim. In this regard, this newspaper took the legitimacy and inspiration in maintaining Indonesian independence from the Quran and other resources of Islamic teachings. In addition, Boelan Sabit newspaper encouraged Muslim readers to have broad knowledge concerning on affairs of state through publishing articles about modern state-related concepts, including deliberation, sovereignty, democracy, and dominion status. Further, this newspaper had a role in helping Indonesian Muslims to understand and accept their new identity after the second world war as a patriotic Indonesian citizen as well as a pious Muslim. Keywords: Islam, nationalism, Indonesian war of independence, Islamic press. Introduction Until the arrival of Japanese troops in Indonesia in 1942, the majority of Indonesian Muslims were almost politically inactive and socio-economically weak. Most of them lived in rural areas, were DOI: 10.15642/JIIS.2019.13.1.115-140 mailto:m.yuanda@uny.ac.id Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 116 illiterate, and apolitical. However, in the last months of 1945, the Indonesian Muslims changed dramatically. Indonesian Muslim leaders worked together with their nationalist compatriots to proclaim Indonesian independence and managed this newborn country. Muslim youth joined both the national army and paramilitary organizations to fight the Dutch, who wished to resume their colonialism in Indonesia, and the British, who claimed to come to Indonesia to disarm Japanese troops. They were even willing to sacrifice themselves by fighting against more trained British and Dutch forces. How can Indonesian Muslims become one of the strongest backbones in the struggle of the Republic of Indonesia against the Dutch and the British? Newspapers play an important role in times of conflict. Newspapers are one of the mass communication media used by belligerents to influence the public, seek support, increase morale, and weaken the enemy. These aims are possible to reach through newspapers given newspapers’ wide reach, moving rhetoric written by experienced journalists or writers, and touching photographs. In newspapers war is imagined, represented and disseminated. Newspapers help shaping public attitude towards war, either supporting or rejecting it. In other words, as stated by Glenn R. Wilkinson, public attitudes made war possible.1 Therefore, in order to study the public attitude towards war, a study of how war is represented in public space is needed, including in the print media. Roy Morris Jr., in his introduction to a book about print media and Civil War in America, underlined that newspapers and magazines have played a role in bringing conflict and war into the living rooms and parlors of (American) public, which in turn means that the power of the press is increasingly solidified and expanded.2 This holds true in Indonesian case during the war of independence, which lasted from 1945-1949. Through the print media the war reached the hands of ordinary Indonesians. Therefore, understanding the struggle for Indonesian independence will not complete without comprehending how Muslims thought and voiced their support for the Republic 1 Glenn R. Wilkinson, Depictions and images of war in Edwardian newspapers, 1899-1914 (Hampshire and New York: Palgrave Macmillan, 2003), p. 1. 2 Roy Morris, Jr., “Introduction,” David B. Sachsman, S. Kittrell Rushing, and Roy Morris Jr. (eds), Words at war: The Civil War and American Journalism (Indiana: Purdue University Press, 2008), p. 9. Defending the State, Defending the Religion 117 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 through various kinds of media, with one of the most important being newspapers. The literature on the role of nationalist newspapers in Indonesia during the Dutch-Indonesian conflict (1945-1949) has been written quite a lot.3 However, Islamic journalism in this time of conflict received very little attention from historians. This paper is the first study that systematically examines the workings of Islamic press, especially Boelan Sabit, during the war of independence in Indonesia. This study provides a perspective on how an Islamic newspaper played a role in the midst of one of the bloodiest conflicts after the Second World War. Boelan Sabit openly supported the Republic of Indonesia and rejected the presence of the Dutch and the British. Given that its readers were educated Indonesian Muslims, this newspaper justified its pro-Republic stance both by patriotic and Islamic arguments. This newspaper helped shaping the public perception among Indonesian Muslims, that at that time Indonesian Muslims had to adopt a new position: devout Muslims as well as patriotic sons of Indonesia, who had to defend their independence from foreign invasion, if necessary with their lives. This paper examines how the narration of Islamic-ness and Indonesian-ness in the midst of the conflict was represented in an Islamic newspaper. The newspaper examined in this study was Boelan Sabit (literally means ‘crescent’, often associated as the symbol of Islam), which was published by the Indonesian Islamic Youth Movement (Gerakan Pemoeda Islam Indonesia, GPII), a youth wing of an Islamic party that was founded in 7 November 1945, Masyumi4. 3 For example, see Andi Suwirta’s study on Jakarta-based newspaper, Merdeka, and Yogyakarta-based newspaper, Kedaulatan Rakjat, during the Dutch-Indonesian conflict, Suara dari Dua Kota: Revolusi Indonesia dalam Pandangan Surat Kabar “Merdeka” (Jakarta) dan “Kedaulatan Rakjat” (Yogyakarta) 1945-1947 (Jakarta: Balai Pustaka, 2000). See also J.R. Chaniago, et. al., Ditugaskan Sejarah: Perjuangan Merdeka, 1945-1985 (Jakarta: Pustaka Merdeka, 1987); David T. Hill, Journalism and Politics in Indonesia: A Critical Biography of Mochtar Lubis (1922-2004) as Editor and Author (Oxon & New York: Routledge, 2010) especially Part II Chapter 3, ‘The “press of political struggle”: the first Indonesia Raya’, and Muhammad Yuanda Zara, “‘Trust Me, This News is Indeed True’: Representations of Violence in Indonesian Newspapers during the Indonesian Revolution, 1945-1948,” Bart Luttikhuis & A. Dirk Moses (eds), Colonial Counterinsurgency and Mass Violence: The Dutch Empire in Indonesia (Oxon & New York: Routledge, 2014). 4 The Masyumi party was very influential in Indonesia and had a very broad mass base. One of its founders, Mohammad Natsir, was appointed Republican Minister of Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 118 In this regard, this paper investigates news, opinions and poems related to Islam and Indonesia published by this newspaper. The period examined in this article is between 15 December 1945 and 14 January 1946. There are several reasons for the selection of this period. First, this one month period is a crucial period for the Republic of Indonesia. About a month earlier, fighting broke out between Indonesian freedom fighters and British forces in Surabaya, the second largest city in Indonesia. This battle continued until the following months and, most importantly, sparked a strongly negative sentiment among the Indonesian people towards the British presence. In the period between December 1945 and January 1946, both the British and the Dutch were able to strengthen their foothold in Java and Sumatra. As a result, in early January 1946 the Republican government moved its capital from Jakarta (which was occupied by the Dutch and the British) to Yogyakarta in the interior of Java. The second reason is practical. The 15 December 1945 edition was the earliest edition of Boelan Sabit available in the National Library of the Republic of Indonesia in Jakarta. The period of one month is representative enough to understand about the aspects of Islam and Indonesia during the conflict.5 By using historical method, the purpose of this study is to find out how ideas about Islam and Indonesia were envisioned, expressed and disseminated by the Islamic press following the birth of the Republic of Indonesia and the coming of the British and the Dutch. How did Boelan Sabit view Indonesia’s independence and the arrival of the British and the Dutch troops to Indonesia? How did Boelan Sabit perceive the position of Muslims in the newly born Republic of Indonesia? How were arguments originating from Islamic teachings used as a justification to support Indonesia as well as to fight against foreign forces? Information as of January 3, 1946. This Party was founded on 7 November 1945, and was the only party in Indonesia that represented Islamic ideology at least until the next two years. See Rémy Madinier, Islam and Politics in Indonesia: The Masyumi Party between Democracy and Integralism (Singapore: NUS Press, 2015), pp. 76-77. 5 Boelan Sabit was published in Indonesian. The English translation in this paper is mine. Defending the State, Defending the Religion 119 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 Spiritualizing Indonesian Independence Boelan Sabit newspaper strongly supported Indonesian independence and was against the presence of the Dutch and the British forces. Even when it discussed Islamic teachings, it contextualized the discussion within the framework of Indonesian independence. For example, when Boelan Sabit in a full front page discussed about the 10 Muharram as the Ashura Day On 15 December 1945 (10 Muharram 1365 H). Although the headlines of the day discussed important days in Islamic history, the article itself was opened not only with ‘bismilla>h’ (in the name of Allah) but also with a reminder of the new age that Indonesian Muslims were entering: “Thank to God who has helped us encountering the new age, the Age of Independence of Indonesian Land.” 6 This statement clearly confirmed the position of Boelan Sabit as supporters of the Republic of Indonesia and its self-proclaimed independence. Futher, the Islamic element was clearly present in Boelan Sabit’s efforts to strengthen its appeal to Muslims in Central Java to support the Republic of Indonesia. Boelan Sabit emphasized the principles of the Masyumi Party in its effort to show its inclination both for supporting the Republic and the role of Islam in the newborn state. In the 14 January 1946 edition of Boelan Sabit, for example, it was confirmed by Boelan Sabit’s editorial that the Masyumi principle was twofold, namely “Upholding the sovereignty of the Republic of Indonesia and the Islamic Religion” and “Implementing Islamic ideals in Indonesian state affairs”.7 Occasionally, when calling Indonesian Muslims to defend Indonesia’s independence Boelan Sabit used stories of glorious Islamic past. Long time ago, wrote a journalist from Boelan Sabit in his article, ‘Menoedjoe djalan kebahagiaan’ (Towards the path of happiness), 14 January 1946, Muslims had achieved highest glory; they even became teachers for the rest of the world. However, then they became ungrateful for God’s favor and were busy pursuing worldly pleasures. As a result, internal disputes arose and led to bloodshed and schism. Muslims fell from glory to destruction. It was only in the 20th century that Muslims regained their consciousness. The same held true for Indonesia, which could be seen from various kinds of Islamic 6 “Sepoeloeh Moeharom (‘Asjoero),” Boelan Sabit, 15 December 1945. 7 “Haloean kita: “Kedaulatan Rakjat,” Boelan Sabit, 14 January 1946. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 120 movements aimed at elevating the degree of Indonesian Muslims since the beginning of the 20th century. The peak of this effort was the independence of Indonesia and the establishment of the Republic of Indonesia since 1945.8 And, according to Boelan Sabit, Muslims were obliged to maintain such independence: We are from the side of the Muslim Ummah: we are in full confidence with our 100 percent independence, and there is no better time for us than now, when we must attempt to maintain the perpetuity of our independence, and with the help God it must succeed. An Arabic proverb says: “If the crescent moon appears, it is clear for us that the full moon will come”.9 Boelan Sabit supported the Republican government’s position that Indonesia was already independent and that the Republic of Indonesia was a legitimate government. This newspaper rejected the views of the Dutch and the British that the Republic of Indonesia had no legitimacy to act as a state. War was the last resort if Indonesia’s aspirations for independence were hindered. In the last week of December 1945, news were circulated in Indonesia that the Dutch and the British would hold a conference in London, where they would discuss the matter concerning the returning of Dutch rule in Indonesia. Masyumi, through his Head Office (Pengurus Besar), represented by Abi Koesno Tjokrosoejoso, criticized the plan for this meeting. His criticism, which was published in Boelan Sabit on 26 December 1945, emphasized the fact that Indonesia was not invited to the conference, which indicated that Indonesia was not considered as an independent country. In other words, Indonesia had not been recognized internationally. Meanwhile, in Indonesia the Dutch and British troops continued to commit acts of violence which provoked strong resistance from Indonesian Muslims. If this continued, Masyumi Head Office instructed Muslims to prepare for a holy war against the Dutch and the British. “Wait for the call for Sabil war [perang Sabil]”, Masyumi Head Office commanded the party’s followers.10 By using the term 'perang Sabil’, which can be translated as ‘to fight for the cause of God’, Masyumi and Boelan Sabit were actually 8 “Menoedjoe djalan kebahagiaan,” Boelan Sabit, 14 January 1946. 9 Ibid. 10 “Moe’tamar GPII di kota Bengawan,” Boelan Sabit, 26 December 1945. Defending the State, Defending the Religion 121 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 campaigning that the reasons to resist the Dutch and the British were not solely nationalism and anti-colonialism. There was a higher, if not the highest, reason for Muslims, which was related to human-divine connections: fighting the enemy because of following God’s orders. Further, it is interesting to note that the efforts to reject the presence of the Dutch and the British, Boelan Sabit took Islam as the legitimacy to support the Republic of Indonesia. The source of their legitimacy came from the main and highest source of Islamic teachings: the Quran. In 15 December 1945 edition, the journalist of Boelan Sabit, in the “Roeangan Tafsir” (Interpretation of Quran) column, interpreted the 85th surah in the Quran, Surah Al Buruj (‘The Big Stars’). This surah talks about the Islamic faith, the power of Allah over the earth and the sky, and the sacrifice of those who believe in Allah and about those who reject Allah’s commands, for what they will be punished by Allah. In other words, in this last part, Allah divides people into two groups. First, believers, or those who follow Allah’s commands, and those who disobey, those who reject Allah’s commands. It was implied from Boelan Sabit interpretation that the British and Dutch colonizers were classified as those who were against Allah’s command: The godless people boast and puff up their chest against the truth and justice that God loves. The Indonesian people will continue to fight every colonial tyranny. Even though the British and the Dutch had made a decision (at the Singapore conference), they will commit acts of violence against Indonesia, [but] they will be stabbed by their own weapons, and they will accept God’s torment inside the extremey hot hell. 11 Journalist of Boelan Sabit also ensured its readers that the colonizers would be chased by “defenders of truth and justice”. The journalist claimed a few examples from abroad where the native people were fighting against the domination of the foreign invaders, such as in Annam (Vietnam), India and Africa.12 Boelan Sabit advocated the amalgamation between nationalism and religion within an Indonesian. One of its reports in 15 December 1945 read as follows: From the conscious sons and daughters of Nusantara, born a spirit of life, a national spirit which is usually inherited by the 11 “Sepoeloeh Moeharom (‘Asjoero),” Boelan Sabit, 15 December 1945. 12 Ibid. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 122 nations of the world. From their mouths came the recognition of “TRILOGY”. One nation: Indonesia. One Indonesian country. One Indonesian language. Apart from that, for those who are aware, with true Religion the world community will be safe in its broadest meaning of the word. So, we have also yelled [that we are the adherents of the] “RELIGION OF ISLAM”.13 In addition, the editor of Boelan Sabit interpreted the 84th surah in Al-Qur'an, Al-Insyiqaq (‘To Split Asunder’) in the context of the struggle for maintaining Indonesian independence. This surah tells about the fate of humans on the Day of Judgment. Some get happiness and return to their Lord in a happy state. But some return in a sad state. Who gets happiness? They, according to the journalist of Boelan Sabit, were those who understood that life was not only in this world but also in the hereafter. This awareness, the journalist continued, led them “to be wise to use their lives for things that are more beneficial for the nation, homeland and religion.”14 These people were “those who are named believers and those who are willing to sacrifice”. Islam was described as the source of inspiration for resistance against the foreign invaders. An article by the journalist of Boelan Sabit (name unknown), entitled “Revolusi dan Islam” (Revolution and Islam), was published in the newspaper in 26 December 1945. In the beginning, the author questioned, what was the source of strength that “was capable of throwing enemies into the sea”? The answer, said the author, was “the basis of Islam”. This was the basis that must be used in the revolutionary struggle of the homeland. He continued that the enemy had brought difficulties to the Indonesian people intending to weaken the enthusiasm of the people. Based on Islam, the writer continued, Muslims will realize that this troubled world was not the end, but only an arena where a Muslim was tested and must pass an examination. Therefore, “however severe suffering is, it will only be lightly felt in the hearts of every Muslim”.15 He continued: So, “with Islam”, the people will be big-spirited. And, with Islam the revolution can continue. For Muslims, the spirit of “sabilillah” [in the way of Allah] is the realization of a great soul. Then, all 13 “Menebalkan semangat tjinta bangsa,” Boelan Sabit, 15 December 1945. 14 “Soerat Insjiqoq,” Boelan Sabit, 26 December 1945. 15 “Revolusi dan Islam,” Boelan Sabit, 26 December 1945. Defending the State, Defending the Religion 123 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 Indonesian people must have it to continue their revolution. To find out the greatness of the soul of Islam, we only need to present half of the teachings of Islam which comprises the spirit of revolution: Who dies but has never fought, and in his heart there is no willingness to fight, he dies as a hypocrite. 16 In a conference on 26-27 December 1945 in the Habiprojo Building in Surakarta, the GPII praised two paramilitary groups affiliated to Masyumi, Sabilillah and Hizboelloh, in their efforts to fight the foreign invaders. Boelan Sabit made the news of this conference the main news in the 29 December 1945 edition. By quoting the results of the meeting, the Boelan Sabit journalist wrote that Sabilillah and Hizboelloh were “atomic [bombs] that destroyed enemies and spies”.17 The term “Atomic [bombs]” (“Atoom” in original text) here clearly brought readers to recall the enormity of the power of the atomic bombs dropped by the United States on Hiroshima and Nagasaki, Japan, less than six months earlier. The atomic bombs destroyed two cities in Japan, and made Japan, which for the previous several years was very powerful, surrendered to the United States and finally ended the Second World War. Comparing American atomic bombs with Sabilillah and Hizboelloh as atomic bombs which destroyed the enemy was clearly an effort to strengthen enthusiasm to the members of these two groups and to show how dangerous they were in front of the enemy. Besides, “Atoom” in this article also had other meaning. The chairman of the meeting, Harjono, interpreted this term differently. For him, “Atoom” stood for “Alloh Tolong Orang-orang Moeslimin” (Allah helps Muslims).18 Interestingly, GPII, and Boelan Sabit as its spokesperson believed that the struggle should not only be carried out by male youth. Although women were not expected to take up arms, they also had an equally important role. Regarding the role of Muslim women at war, in the late December 1945 meeting, as reported by Boelan Sabit, a female envoy from the GPII women’s section, Hidanah, stressed that Muslim women in times of turbulence had three types of obligations, namely obligations to themselves, obligations to household and obligations to 16 “Revolusi dan Islam”. 17 “Rapat oemoem moe’tamar GPII,” Boelan Sabit, 29 December 1945. 18 Ibid. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 124 community. 19 To themselves, they were obliged to educate themselves, while for households, they were obliged to manage the household well. As for the community, they were obliged to realize the noble ideals of mothers. Equally important, Hidanah underlined that without mothers there would be no men and youth fighters. In the meeting, Hidanah asked rhetorically: “Who gave birth to the Prophet Muhammad? Who gave birth to Prince Diponegoro? Who gave birth to the heroes who are now marching to the front line? Women, right? Then, pay respect to women!”20 In addition to publishing views that motivate its readers to fight the Dutch and the British, Boelan Sabit also released news about the Indonesian people’s resistance against the foreign invaders in a very pro-Indonesia tone. Boelan Sabit had confirmed its pro-Republican attitude since the beginning, thus it is understandable when its reports clearly supported Indonesian independence and anti-colonialism attitude. Educating Muslims about Politics Boelan Sabit did not only report violence and fighting involving Muslim youth. For this newspaper, fighting was an important way to defend the sovereignty of the Republic from the Dutch and British hindrance. However, there was another important task to do, namely to expand the knowledge and understanding of the readers, most of whom were educated Muslims, regarding basic concepts of statehood. The aim was to ensure that Muslims were not just preoccupied with fighting the enemy in the battlefield, but also to increase knowledge and skills in managing the newly born country. Muslims were the biggest part of Indonesian society, so they were expected to participate in running the state. The GPII itself, as the mother organization of Boelan Sabit, in its Articles of Association (Anggaran Dasar), especially in Article 6 (Efforts), did not only emphasize how they seek to deepen Islamic knowledge (point A) and the application of these teachings among its members (point B), but also had an effort to “Enhance intelligence and skill of Islamic youth in state matters” (point C).21 19 Ibid. 20 Ibid. 21 “Anggaran Dasar Gerakan Pemoeda Islam Indonesia,” Boelan Sabit, 29 December 1945. Defending the State, Defending the Religion 125 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 A method to do this was by providing various columns that contained knowledge about democracy, sovereignty of the people, and state administration. Boelan Sabit introduced concepts relating to modern state. These concepts were discussed in the Roeangan Pengetahoean Politik (Political Knowledge) column, which was presented serially. One of them was the definition and explanation of the principle of “musyawarah” (deliberation) which was the main notion of the fourth principle in the Pancasila (Indonesian state principle of five pillars). Deliberation, according to the author who discussed it in Boelan Sabit, was a method to make decisions. However, the majority did not necessarily the one who held the truth. Therefore, two steps were necessary; first, adopting deliberation as a method to make a decision, and second, educating the people to be more intelligent, which in turn would make them increasingly responsible for managing common issues. 22 Another issue discussed by Boelan Sabit was on the form of government in postwar Indonesia. The discussion was sourced from government and Islamic leaders, or was taken from other media outlets that specialized in state matters. One example can be seen in Knowledge and Politics column in the 2 January 1946 edition of Boelan Sabit. An article was published, entitled “’Dominion Status’ Arti dan Isinja” (‘Dominion Status’: Its Meaning and Contents). This was taken from the Pantja Raja magazine. 23 Interestingly, there was no other reason to publish this article than to reject the contents. At the beginning of this article, the editorial staff of Boelan Sabit wrote: “In order to broaden the knowledge concerning politics, here we publish ‘Dominion Status’, and we hope it is not to be swallowed up! We only want independence 100 pCt.”24 The dominion status discussed here was linked to the history of two nations that have long fought for independence, namely India and Indonesia. In the beginning, more space was given to the discussion of the presence of dominion status as one of the demands of the Indian nationalists to the British rule. The All India Congress since 1885 requested self-government for India. The request changed into a Home Rule, and finally, since 1916, a dominion status. This demand 22 “Demokrasi,” Boelan Sabit, 15 December 1945. 23 “Roeangan Pengetahoean dan Politik: ‘Dominion Status’, Arti dan Isinja,” Boelan Sabit, 2 January 1946. 24 Ibid. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 126 failed because of British refusal to fulfill it. As for Indonesia, according to this article, dominion status for Indonesia had been echoed by Indonesian nationalists since 1936 when Soetardjo, an Indonesian member of Dutch-created representative body, petitioned about dominion status at the Dutch East Indies People’s Council. Four years later, another Indonesian nationalist, Wiwoho, also recommended dominion status before the People’s Council session. Some other nationalists put forward the same demand in 1940 to the Visman Commission, a commission established by the colonial government to investigate aspirations of the native.25 Furthermore, the author of the article asserted that dominion status was the Dutch proposal as a solution to the post-Second World War political problems in Indonesia. The Dutch gave the Indonesian people authority to regulate their country, but they were still under the Kingdom of the Netherlands. This status referred to the example used by the British Empire, namely its dominion areas outside the United Kingdom which were controlled by British and other Westerners, encompassing Canada, New Foundland, South Africa, Australia, New Zealand and Ireland.26 An example like this was what Indonesian people imagined would be applied by the Dutch in Indonesia. Although Indonesian nationalists had proposed a dominion status for about a decade before, but it was clear that Boelan Sabit rejected this option. Its demands were full independence and sovereignty, and without the need to be under the Kingdom of the Netherlands. For Boelan Sabit, the one and only authority in Indonesia was the Republic of Indonesia, led by President Soekarno and Vice President Mohammad Hatta. Their orders must be carried out, and not orders from the Dutch or the British. Boelan Sabit passed on to his readers various instructions from President Soekarno. It thus acted as government spokesman. Two important things emphasized by Soekarno in the era of maintaining independence were the so-called coordination and consolidation. Boelan Sabit even made this theme the main news on 7 January 1946 under the heading “Haloean Kita: Koordinasi-Konsolidasi” (Our Direction: Coordination-Consolidation). The meaning of coordination, according to the author, was the close relationship between various struggle bodies and ideological schools, 25 Ibid. 26 “Roeangan Pengetahoean dan Politik: ‘Dominion Status’, Arti dan Isinja,” article 2, Boelan Sabit, 7 January 1946. Defending the State, Defending the Religion 127 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 while consolidation referred to efforts to harmonize the movements between various struggle organizations.27 The Boelan Sabit editorial elaborated on what Indonesian people and especially Muslims must do in the war situation. First, it ensured that the source of the struggle for Muslims was Islam, from which came the noble attitudes such as honesty, sincerity, purity, discipline, and obedience and fear of God. These virtues would create a close unity which cannot be divided. Besides being guided by President Soekarno’s advice on coordination and consolidation, there were two other efforts that must be performed especially by Indonesian Muslims, namely: (1) defending our independence from the invaders, by fighting through the way of the army, (2) upholding and regulating order in our country, implementing the arrangement of the government, by giving efforts in state administration. 28 In addition, the editorial staff of Boelan Sabit emphasized several directions that Indonesian Muslims must understand. First, both diplomacy and military were equally important, and both must be carried out together. Secondly, the struggle body and political parties should be rooted in the will of the people. Third, the government had established a centralized military effort under the command of the TKR (People’s Security Army) while the political body and ideologies centered on the Komite Nasional Indonesia (KNI, Indonesian National Committee). Finally, the group selfishness must be diminished given that selfishness may spark hazardous competition for power, jealousy, and mutual defamation that may make “our enemies laugh, because we are easily weakened”.29 On 6 and 7 January 1946, Masyumi held a ‘koersoes kilat’ (quick- brief course). In this course, rather than military tactics and weapons, the Masyumi members and sympathizers for two days were taught about political and social sciences, both from the perspective of Western science and from the perspective of Islamic theology. Some of the subjects taught were the issue of foreign policy, economic upheaval, the struggle of the workers, the structure of the state 27 “Haloean kita: ‘koordinasi dan konsolidasi. 28 Ibid. 29 Ibid. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 128 according to Islam, and the procedures for the struggle of the Sabil army (the army of the holy war). 30 Becoming Muslims and Patriots The GPII’s Articles of Association and By-Laws (Anggaran Rumah Tangga) showed a combination of Islam and nationalism. As published by Boelan Sabit, in the Article 4 of GPII’s Articles of Association, it was mentioned that the aim of the GPII was twofold, namely: “Upholding Islam” and “Defending and perfecting the State of the Republic of Indonesia based on the Belief in One God”. This was clearly GPII acceptance of Pancasila instead of the Jakarta Charter, the early version of the Pancasila text which was in one of its articles emphasized the application of Islamic law to Indonesian Muslims. The requirement to become GPII member was provided in the first article of its By-laws: “Islamic youth, citizens of the Republic of Indonesia”, aged between 15-35 years. 31 The bond between Islam and nationalism was manifested in a symbolic form. The GPII meeting on 26-27 December 1945 gave an idea on how to become Muslim as well as a patriot of Indonesia in the time of war. At this meeting the audience stood up to sing Indonesian national anthem, ‘Indonesia Raya’, led by Abd. Madjid Harsoloemakso. The meeting itself was closed by shouting Allahu akbar (Allah is great) three times and merdeka (independence) once.32 However, this emphasis on the combination of Islam and Indonesian patriotism was not only represented in the conceptual and symbolic form. For Boelan Sabit, a pious Muslim at the same time could also be a patriot. Boelan Sabit often published the true story of Muslim youth who were willing to sacrifice their lives to defend Indonesia’s independence. One rather long story that represented a great sacrificial narrative by Muslim youth for an independent Indonesian state could be seen in the story of a member of the GPII Surakarta and Hizboelloh (Masyumi’s armed youth organization) named Banani. The story of the struggle of Banani took almost half a page in the newspaper, showing its major value and importance. In the midst of the many news about political developments at the national level, this 30 “Boeah koersoes kilat,” Boelan Sabit, 10 January 1946. 31 “Anggaran Dasar Gerakan Pemoeda. 32 “Rapat oemoem moe’tamar GPII. Defending the State, Defending the Religion 129 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 personal story showed that a touching story about a young man’s sacrifice was extremely noteworthy. The title of the news is ‘Kenang- kenangan bagi: Pahlawan A. BANANI-SIRADJ Hizboelloh’ (A Piece of Memory for a hero named A. BANANI-SIRADJ Hizboelloh). 33 The article narrated the last eight days in Banani’s life. On the morning of Tuesday, 18 December 1945, Barisan Hizboelloh Surakarta was holding a rally to prepare troops for battle. Banani was present. This group was visited by President Soekarno, his family, and his ministers. In his remarks, Soekarno emphasized the importance of Hizboelloh in sustaining an independent Indonesian state from enemy interference as well as in helping this new country to prosper in the future. 34 Sukarno’s advice described by Boelan Sabit “strengthening his [Banani] soul and determination, that Hizboelloh was willing to sacrifice for the state, for the sake of prosperous Indonesia”.35 In the afternoon, the Hizboelloh troops moved to the battlefield. They, wrote Boelan Sabit journalist, “had reinforced their minds that they would not return, intending to water the earth of the Indonesian motherland with their blood”.36 On 24 December 1945, Hizboelloh troops were ordered to retreat after carrying out an attack (not specified where and how the raid went). But Banani (and his two friends) refused to withdraw, and asked to be sent back to the front line. Banani was ordered to take a rest by his commander, but for him, there was no such thing as taking rest for Muslim youth, because the real rest, he said, was “later if we have arrived at the God’s protection”. Banani also bathed many times in order to remain pure from hadath (ritual impurity). He incessantly voiced his desire to meet God. He read Quran after the battle. He told his friends that he missed martyrdom. He recounted his dream, where he received purely white and fragrant flowers from heaven. He also saw a golden gate with a beautiful guard. He tried to approach the gate, but he could not reach it because his dream suddenly stopped. When 33 “Kenang-kenangan bagi: Pahlawan A. BANANI-SIRADJ Hizboelloh,” Boelan Sabit, 21 December 1945. 34 Ibid. 35 Ibid. 36 Ibid. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 130 he woke up, his hands smelled good. His friends admitted that Banani’s hands smelled like musk. 37 Shortly thereafter, came the order from their commanders to get ready to fight. Two days later, on December 26, they met NICA (Netherlands Indies Civil Administration) and Gurkha forces in Ungaran, northern Central Java. As they crawled near the enemy, they were bombarded with bullets and mortars. Hizboelloh troops pushed forward while shouting Alla>hu akbar and La> ila>ha illalla>h (There is no god but Allah). There were a few casualties on the Hizboelloh side. One of them was Banani. His body was taken to Surakarta Hospital, and then brought to a Republic office in Surakarta. In this last place Banani’s body was given an “Islamic army” honor. Boelan Sabit reported that the office space was crowded by the military and GPII members, as well as Muslims of the city in general. The officials read aloud the biography of Banani and messages for those who were still alive. After that, military honors were given by firing rifles three times. Banani’s body was then buried in the Astana Bahagia cemetary. The journey of Banani’s body to the tomb, Boelan Sabit wrote, was escorted by “tens of thousands of people”.38 The death of Banani (and one other friend) on the Ungaran front was depicted by Boelan Sabit as the death of martyrs. The death was portrayed giving an extra enthusiasm to other Hizboelloh fighters to control the Ungaran region. It was reported that in the end Hizboelloh troops succeeded in repelling NICA and Gurkha forces. A number of NICA and Gurkha soldiers were killed, while their weapons were confiscated by Hizboelloh troops. Dozens of enemy spies were also arrested. In short, Hizboelloh, Boelan Sabit journalist wrote, acted as “banteng ketaton” (wounded bull who raged till dead) to resist the attacks of NICA and Gurkha, which ended in victory on the part of Hizboelloh, marked by the takeover of Djatingaleh Fortress in Semarang by Hizboelloh troops. 39 The similar stories as above appeared many times in Boelan Sabit, with this Banani story as one of the most elaborated ones.40 The core 37 Ibid. 38 Ibid. 39 Ibid. 40 Another example is the story of Moeh. Solihan, a Hizboelloh member who was killed by enemy attacks. See ‘Kenang-kenangan bagi: Pahlawan Moeh. Solihan Hizboelloh’, Boelan Sabit, 2 January 1946. Defending the State, Defending the Religion 131 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 theme of these stories was similar, namely about the sacrifice of a pious Muslim youth who at the same time really patriotic in defending Indonesia from the Dutch and the British. During their lives, they were devout adherents of Islam and did many good deeds to others. They were not only pious personally, but also dared to defend their religion and country. In the end, they died on the battlefield and were described as martyrs for both their religion and country. In turn, this kind of story did not only stop in the narrative, but was expected to be an inspiration and a mental reinforcement for other Muslim youths going into the battle. For Boelan Sabit, they were portrayed as patriotic martyrs, who later died on the battlefield as Indonesian independence heroes. The burial of their dead bodies was arranged militarily as well as according to Islamic rituals. All GPII members and local Muslims were depicted in mourning for their death and were ready to continue their aspirations for an independent Indonesia. In addition to the biography of the martyrs, Boelan Sabit praised the deceased Indonesian Muslim fighters through poetry. One of them was entitled “Kenang2an kepada Pahlawan jg telah sjahid” (Remembrance to a hero who died as martyr) written by a poet named Bima Sutji, published in Boelan Sabit on 2 January 1946. The poem read as follows: Mr. X is lying on bed, finely wrapped in shroud, fully decorated, to be taken to the tomb, He... is Dead. People say. And you... o hero, a leading warrior, your body rolled on the ground. your body was covered by blood. You died, people say. Mr. X is DEAD, and you too, DEAD, in the end there is no difference, because all is the will of ALLAH. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 132 The only difference is that you are DEAD because of your devotion, defending the Homeland and Religion, You are DEAD in the path of Allah.41 Another poem, “Djika” (If), in Boelan Sabit, 7 January 1946, written by Alimoeddin, read as follows: Hero... If. Black smoke is steaming, The sound of weapons disrupts nature The loud sound seemed to split the earth Inside the jungle, city and village, On steep hills and cliffs, Or perhaps in a deep valley... Around the water, the fire to... the edge of the death: Strengthen your heart, calming down your soul, Being sincere Release your feelings in memories, You died as a hero, Upholding Religion, defending the Land. Let the body be covered in blood, Shouting out before life [text unclear] Allah is Great, Allah is Great, Allh is Great, Independent, always Independent. No God but Allah…42 The tone of the poems above seemed dark because they contained the terms such as blood, shroud, dead and tomb. However, optimism was present. Death was God’s will and none could escape death. Yet, the death of freedom fighters was of higher value, because they died while defending their religion and homeland. In the view of Boelan Sabit, this was the most ideal type of hero in a time of conflict between Indonesia and the foreign enemies. The poets, as well as the Boelan Sabit which published it, praised the sacrifices of these martyrs and positioned them as role models for other Muslim youth. 41 “Kenang2an kepada Pahlawan jg telah sjahid,” Boelan Sabit, 2 January 1946. 42 “Djika,” Boelan Sabit, 7 January 1946. Defending the State, Defending the Religion 133 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 Besides the call for Indonesian Muslims to contribute with their lives, they were also requested to provide financial assistance to support the independence struggle, especially in the form of money. Masyumi Party formed the so-called Fonds Sabilillah as an effort to attract financial support from Muslims. The campaigns to request financial aid from Muslims were carried out, one of which was through advertisement in Boelan Sabit. Masyumi Party in its advert in Boelan Sabit, 10 January 1946, hoped for “maximum assistance” from Muslims throughout Indonesia especially to strengthen Sabilillah and Hizboelloh. The money was expected to be delivered to the Masyumi head office in Setjodiningratan 1, Yogyakarta. 43 ‘Ulama>’ and the Independence for Struggle In the pre-war era, ‘ulama>’ (Muslim scholars) were identical with religious teachers who taught their students with religious education in centers of religious education such as surau (small mosque) or pesantren (Islamic boarding school). They almost entirely focused on educating people to understand religious teachings. Only a few of them were involved in political affairs. Dutch policies limited the movement of religious teachers, including via 1905 and 1925 Teacher Ordinance, Hajj passport policy, and screening of returning pilgrims from Mecca. These had narrowed the space for religious teachers to be involved in matters beyond their mosques. However, the arrival of the Japanese enabled Muslim scholars to take part in managing the community, even though in the context of supporting Japan’s war effort in the Pacific. This can be seen, among other things, in the involvement of Indonesian scholars in Japan- established organizations. After the Japanese defeat and the proclamation of Indonesian independence, the influential scholars’ society repositioned themselves, this time as supporters of the independent Indonesian state. Boelan Sabit proposed the need to unite two important elements in Indonesian society, namely Muslim scholars and Western-educated intellectuals. A writer named Matapatjar wrote in Boelan Sabit that every group in Indonesian society must contribute to the Republic of Indonesia in accordance with their respective backgrounds. The writers, he explained, contributed by writing in newspapers and 43 “Fonds Sabilillah,” Boelan Sabit, 10 January 1946. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 134 magazines, while the agitators contributed with their voices to make people aware. The organizers, he continued, struggled to arrange the steps of struggle, whereas the wealthy people struggled by donating their wealth and the knights struggled with their blood and soul. The other two important parties were Muslim scholars and intellectuals. The ‘ulama>’ had the role of “being the leader” while the intellectuals “became promoters, holding the steering wheel responsible for the nation and their homeland”. These two groups, said Matapatjar, must unite “to organize the people’s energy in facing this fierce struggle”.44 He continued: With the unity between ‘Ulama >’ and intellectuals, one can guarantee the firm unity of the people. Therefore, intellectuals, who are full of modern knowledge, and ‘Ulama >’, who are always learning the contents of the Quran that are full of knowledge and sciences, such as natural sciences, medical science, astronomy, social sciences, political science, social sciences, etc. must unite to bring and guide the people to a direction of progress and to uphold the eternal the State of the Republic of Indonesia. 45 In the GPII conference in late December 1945, Chairperson of the Yogyakarta Regional KNIP, Moh. Saleh, also gave a speech, which was then published in Boelan Sabit. He said that after observing various battlefronts he found that the role of the kyai (traditional Muslim clerics) at the time of independence, differed from their role in the past. Previously, he said, the clerics’ major task was to memorize the so-called “fa ‘ala jaf‘oeloe” (Arabic verbs). However, now in the age of independence the situation had changed. The clerics left their surau and pesantren to be involved in handling socio-political matters. He believed that the clerics had at least two important contributions. 46 First, they were deemed skillful at managing the newly born state in their capacity as residents and regents. Second, they became “heroes who cleanse rioters and enemies”. For Moh. Saleh, the kyai and santri (Muslim students) were nothing but “flowers on the battlefield today”. The kyai 44 “Oelama dan intellek bersatoelah oentoek menegakkan negara Repoeblik Indonesia,”, Boelan Sabit, 26 December 1945. 45 Ibid. 46 ‘Rapat oemoem moe’tamar GPII. Defending the State, Defending the Religion 135 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 in the independence war, Moh. Saleh added, had dual functions, namely “war heroes” and “excellent state experts”.47 The kyai themselves did not only play a role in calling for resistance against the British and the Dutch. Even though they were already old in term of age, they were still willing to join training for preparation to enter the battlefield. One of such training was held by Sabilillah on 1 January 1946 at his headquarters. A report in Boelan Sabit mentioned that at that time there were at least 300 kyai who were trained in weapons handling and military tactics. They were mostly old people, which was marked by their beards (they were then dubbed “Barisan Djenggot” [The Beards Front]).48 Why did these old people join the training for battle? One of the kyai asserted that he joined the training in order to “understand how to beat Gurkha and NICA”. After this training, he intended going to Semarang to hamper NICA and Gurkha movement. He was ready to live and to die; he said, if he died he would be a martyr, and if he was still alive then he would live in freedom. He had prepared his own weapon to face the NICA and Gurkha troops: sharpened bamboo spears. 49 Since January 1946, Sabilillah Surakarta had even organized special military training for elders, dubbed as “peradjoerit barisan oeban” (gray warrior soldiers). They were generally aged 50 years and above. In his report entitled “Barisan Sabilillah” (Sabilillah Front), Boelan Sabit reported that they were trained by a Republican military major who understood military science. In the afternoon they were trained to use hand grenades, incendiary device, and spears and how to carry out attacks on the enemy. They were portrayed as elders who had young spirit because they wanted to practice their military drill which required strong body like that of young people. In addition, Boelan Sabit illustrated them as devout elders, because at night after military training they “face God with prayer and reflection”.50 47 Ibid. 48 “Latihan Barisan Sabilillah,” Boelan Sabit, 2 January 1946. 49 Ibid. 50 “Barisan Sabilillah,” Boelan Sabit, 10 January 1946. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 136 Conclusion After researching the Boelan Sabit newspaper’s various articles for a month (from 15 December 1945 to 14 January 1946), it was found that this newspaper incessantly called for Indonesian Muslims to defend Indonesian independence from Dutch colonialism and British occupation. This call, according to the newspaper, was based on both Islam and nationalism. Boelan Sabit ensured its Muslim readers that the period of independence was a time to strengthen the two identities inherent in them, namely a son of Indonesia and a Muslim. This newspaper, by taking the legitimacy and inspiration to maintain Indonesian independence from the Quran and other Islamic teachings, constantly voiced that Indonesian Muslims upheld the Republic of Indonesia whose existence was challenged by the Dutch and the British. Besides, it believed that adhering Islam correctly would be an important thing to do to bring the postwar world to peace and progress. To support Indonesian independence from foreign attackers, some methods used by Bulan Sabit to express this standpoint were, first, it linked various stories taken from Islamic traditions to the struggle of Indonesian Muslims to maintain their country’s independence. For example, on 15 December 1945, when Muslims all over the world commemorated 10th Muharram (Ashura Day). For Boelan Sabit, Indonesian Muslims who at that time were struggling to maintain their independence must learn from the messages brought by the commemoration of Ashura Day, including by studying the great sacrifices of the prophets to reach happiness. Second, it emphasized that the Indonesian people were not alone in their fighting to defend their independence. They had many fellows throughout Asia and Africa. Third, it criticized the failure of the Western countries to fulfil their pre-war promises, which stressed that colonized nations were allowed to determine their future. As a media for public literacy, this newspaper not only voiced the views of its mother organization (Masyumi), but also sought to educate its Muslim readers, especially concerning on matters of state. There were not many Indonesians could read and write Latin letters, and even fewer were politically literate. Thus, GPII, as the publisher of Boelan Sabit, made this magazine a medium for sharing information about the modern political concepts and information about political developments within and outside the country. Defending the State, Defending the Religion 137 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 Judging from its reports and views, Boelan Sabit continuously campaigned that a pious Muslim can at the same time be a patriotic Indonesian son. In its Article of Association, the GPII clearly stated that they aimed both to uphold Islam and to defend the Republic of Indonesia. They accepted Pancasila and believed in a representative democracy. And, to prove that the combination of pious Muslims and patriotic sons of Indonesia was real, Boelan Sabit repeatedly reported on the sacrifices of Islamic youth in the fight against the Dutch and the British troops. Reports of Indonesian nationalist newspapers on the events of the death of Indonesian fighters generally focused on the sacrifice of the young men in the context of the defence of the motherland. However, Boelan Sabit combined the defense of the motherland with the sacrifice of a martyr to defend his religion. Therefore, for Masyumi and Boelan Sabit, an ideal type of Muslim at that time was a man devout to his religion, being kind to others, loving the country and willing to sacrifice his life for his religion and nation. In addition to the youth, Boelan Sabit believed that the presence and contribution of ‘ulama>’ (Muslim scholars) were indispensable in the struggle for maintaining Indonesian independence. In the past the scholars may only concentrated on religious matters, but now they had taken part in social and political matters as well. They were reported joining in military drill and weapons handling. More importantly, given their educational background, they were illustrated to have sufficient knowledge and skills not only about the management of the people but especially the management of the state. ‘Ulama>’, thus, were redefined by Boelan Sabit, by equating them with intellectuals and administrators. This research shows that Indonesian nationalism in its formative years must be understood in the context of its relation to Islamic ideas. This is evident in Islamic oriented print media such as Boelan Sabit. Reading Boelan Sabit enable us to comprehend how the idea of nationalism was combined with the idea of Islam in the context of the Indonesian war of independence and was then expressed in Islamic oriented newspapers. [] Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 138 References Books and Articles Benda, Harry J. The Crescent and Rising Sun: Indonesian Islam under Japanese Occupation, 1942-1945. The Hague and Bandung: W. Van Hoeve, 1958. Anderson, Benedict. Revoloesi Pemoeda: Pendudukan Jepang dan Perlawanan di Jawa, 1944-1946. Jakarta: Sinar Harapan, 1988. Chaniago, J.R. et. al. Ditugaskan Sejarah: Perjuangan Merdeka, 1945-1985. Jakarta: Pustaka Merdeka, 1987. Hill, David T. Journalism and Politics in Indonesia: A Critical Biography of Mochtar Lubis (1922-2004) as Editor and Author. Oxon & New York: Routledge, 2010. Luttikhuis, Bart & A. Dirk Moses (eds.). Colonial Counterinsurgency and Mass Violence: The Dutch Empire in Indonesia. Oxon & New York: Routledge, 2014. Madinier, Rémy. Islam and Politics in Indonesia: The Masyumi Party between Democracy and Integralism. Singapore: NUS Press, 2015. Poeze, Harry A. Tan Malaka, Gerakan Kiri, dan Revolusi Indonesia. Jilid 2: Maret 1946-Maret 1947. Jakarta: Yayasan Obor Indonesia & KITLV, 2009. Sachsman, David B., S. Kittrell Rushing, and Roy Morris Jr. (eds). Words at war: The Civil War and American Journalism. Indiana: Purdue University Press, 2008. Suwirta, Andi. Suara dari Dua Kota: Revolusi Indonesia dalam Pandangan Surat Kabar “Merdeka” (Jakarta) dan “Kedaulatan Rakjat” (Yogyakarta) 1945-1947. Jakarta: Balai Pustaka, 2000. Toer, Pramoedya Ananta et. al. Kronik Revolusi Indonesia Bagian I (1945). Jakarta: KPG, 1999. Wilkinson, Glenn R. Depictions and images of war in Edwardian newspapers, 1899-1914. Hampshire and New York: Palgrave Macmillan, 2003. Defending the State, Defending the Religion 139 JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 Newspapers “Anggaran Dasar Gerakan Pemoeda Islam Indonesia”. Boelan Sabit, 29 December 1945. “Anggaran Roemah Tangga Gerakan Pemoeda Islam Indonesia”. Boelan Sabit, 29 December 1945. “Barisan Sabilillah”. Boelan Sabit, 10 January 1946. “Boeah koersoes kilat”. Boelan Sabit, 10 January 1946. Boelan Sabit, 15 December 1945. “Boelan Sabit djadi pertjatoeran”. Boelan Sabit, 14 January 1946. “Demokrasi”. Boelan Sabit, 15 December 1945. “Djika”. Boelan Sabit, 7 January 1946. “Fonds Sabilillah”. Boelan Sabit, 10 January 1946. “Haloean kita: ‘Kedaulatan Rakjat’”. Boelan Sabit, 14 January 1946. “Haloean kita: ‘koordinasi dan konsolidasi’”. Boelan Sabit, 7 January 1946. “Kenang-kenangan bagi: Pahlawan A. BANANI-SIRADJ Hizboelloh”. Boelan Sabit, 21 December 1945. “Kenang-kenangan bagi: Pahlawan Moeh. Solihan Hizboelloh”. Boelan Sabit, 2 January 1946. “Kenang2an kepada Pahlawan jg telah sjahid”. Boelan Sabit, 2 January 1946. “Latihan Barisan Sabilillah”. Boelan Sabit, 2 January 1946. “Menebalkan semangat tjinta bangsa”. Boelan Sabit, 15 December 1945. “Menoedjoe djalan kebahagiaan”. Boelan Sabit, 14 January 1946. “Moe’tamar GPII di kota Bengawan”. Boelan Sabit, 26 December 1945. “Oelama dan intellek bersatoelah oentoek menegakkan negara Repoeblik Indonesia”. Boelan Sabit, 26 December 1945. “Perdjoeangan rakjat sebagai banteng ketaton”. Boelan Sabit, 26 December 1945. Muhammad Yuanda Zara JOURNAL OF INDONESIAN ISLAM Volume 13, Number 01, June 2019 140 “Rapat oemoem moe’tamar GPII”. Boelan Sabit, 29 December 1945. “Revolusi dan Islam”. Boelan Sabit, 26 December 1945. “Roeangan Pengetahoean dan Politik: ‘Dominion Status’ Arti dan Isinja”. Boelan Sabit, 2 January 1946. “Roeangan Pengetahoean dan Politik: ‘Dominion Status’, Arti dan Isinja”. article 2, Boelan Sabit, 7 January 1946. “Sepoeloeh Moeharom (‘Asjoero)”. Boelan Sabit, 15 December 1945. “Soerat Insjiqoq”. Boelan Sabit, 26 December 1945. “Tindjauan: Doenia terbakar lagi?”. Boelan Sabit, 15 December 1945. 
work_4pxvv4gadrak7hu4rgap3fkm64	----	Are transcendental theories of justice redundant 1 Are transcendental theories of justice redundant? Forthcoming in a booksymposium in The Journal of Economic Methodology, with a reply by Amartya Sen. Ingrid Robeyns  (robeyns < at> fwb.eur.nl) Final pre-publication version 8 November 2010 Amartya Sen’s The Idea of Justice is a very rich book, with many aspects worth discussing. I will limit myself here to one major claim that Sen makes, namely that transcendental theories of justice are redundant. I will argue that this ‘Redundancy Claim’ is mistaken, since for justice- enhancing actions we need both transcendental and non-transcendental theorising of justice. Nevertheless I endorse an implication of the Redundancy Claim, namely that theorists of justice should shift their focus from transcendental theorizing towards thinking about justice- enhancing change, thereby restoring the balance between transcendental and non-transcendental theorizing. I will argue that this ‘Rebalancing Claim’ not only follows from the (mistaken) Redundancy Claim, but also from another argument which Sen advances about the current practice of philosophers of justice. I will conclude that the Redundancy Claim has to be rejected, but that this is not a big loss, since what is really important is the Rebalancing Claim, which is vindicated. Transcendental theories and the Redundancy Claim How does Sen understand transcendental theories of justice? Transcendental theories of justice are theories that describe a perfectly just situation: no further justice-improvements are possible. Transcendental theory “concentrates its attention on what it identifies as perfect justice, rather than on relative comparisons of justice and injustice. It tries only to identify social characteristics that cannot be transcended in terms of justice, and its focus is thus not on comparing feasible societies, all of which may fall short of the ideals of perfection. The inquiry is aimed at identifying the nature of ‘the just’, rather than finding some criteria for an alternative being ‘less unjust’ than another.” (p. 5-6). Sen argues that transcendental theories are redundant if our aim is to actually make choices that advance justice: “If a theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient” (p. 15). Call this the Redundancy Claim. I agree with one part of the Redundancy Claim, namely that transcendental theory is not sufficient for guidance, and will therefore only 2 focus on the claim that it is not necessary. This latter part of the Redundancy Claim I believe to be mistaken. Sen argues that a number of basic injustices don’t need transcendental theory in order for us to understand and agree that they concern gross injustices (xi-xii). Indeed, all theories of justice would agree that corruption in politics, power abuse by economic actors, or the training of child soldiers are blatant cases of injustice, and that we don’t need a transcendental theory of justice to spell that out. Yet we cannot extrapolate from this particular subset of injustices (i.e. manifest and clearly remediable cases of injustice) to the entire set of injustices. My belief is that the usefulness of transcendental theory is limited and currently enjoys a too high status among academic philosophers, but that we are mistaken if we believe that we can entirely do without. Two arguments against the Redundancy Claim I will offer two arguments against the Redundancy Claim. The first argument is that many cases of injustice are complex and often subtle, and therefore more difficult to identify and analyse as cases of injustice than cases of basic injustice. Take the case of gender justice in liberal societies, which have seen many decades of feminist activism, and where most citizens explicitly support equal rights for men and women. In those societies, many citizens believe that gender justice is fully realised. But how do we judge a claim of full or perfect justice? If we want to analyse a claim of perfect gender justice, we need transcendental principles of justice. We need to specify which conditions have to be met before we consider a certain state of affairs as perfectly just. In order to assess such a claim of gender justice, one needs principles that tell us when a society is gender just. These principles are transcendental principles of justice (even though they are only transcendental in one domain, namely gender relations). Often the most effective way to argue for a claim of an injustice that is not blatant, is by arguing for ideals of justice, that is, arguing for principles of transcendental justice (in general, or in a particular domain), and empirically showing that these principles are not met. Again, social activists make ample use of such transcendental principles of justice and of this kind of public reasoning, for example when they invoke an ideal of substantive equality of opportunity. Summing up, judgments about the comparison of complex cases of injustice implicitly or explicitly do refer to ideals of justice. Not just in academic work, but also in real-life public discussions. The second argument for the non-redundancy of transcendental theories stems from the nature of the non-transcendental theorising of justice, which is the theorising that guides our justice-enhancing actions and policies. Non-transcendental theorising of justice entails but is not limited to the comparative approach to justice, the approach that Sen champions in The Idea of Justice. For example, non-transcendental theorising of justice also includes theorising on 3 how to weigh different principles of justice, or theorising on what to do if in the long run we can achieve a more just state, but whereby this requires sacrificing one generation for the sake of the following generations. I believe that non-transcendental theories of justice require transcendental theories. Non- transcendental theories of justice give us a chain of changes that are needed in order to reach the most just social state among all feasible social states. We need to have a complete ‘navigation map’, a clear vision of how to go from where we are to where we want to be. We need an entire path of justice-enhancing actions, not only a comparison between two states which comparative justice offers us. If we limit ourselves to the comparative approach, we may choose for an injustice-reducing action that may benefit us in the short run, but may lead us to a suboptimal situation (from the point of view of justice) in the long run, due to the path- dependency of our actions. Suppose that we can represent the degree of justice of a certain situation with a number, on a scale where 100 represents the fully just social state. The initial social state A has a justice- value of 50. From A we can move to either B or S, with B corresponding to a justice value of 70 and S of 55. If we are in A, and only compare B and S, then the conclusion is easy: we have to take action so that we end up in social state B. But our possibilities for further action are not independent of this first choice. Suppose that in the best-case scenario we can move from B to C, with C having a justice value of 80. From S, however, we will be able to move to T where we can realize a justice value of 95. We cannot move from B to T. It then becomes clear that in order to make a reasoned decision between B and S, we need to know the ‘paths of change’ that B and S are on, and those paths are directing us towards an ideal, that is, a transcendental theory. Clearly the comparative approach is an important element of this more complete story of how to decide what to do – but that complete story also needs a vision of the ultimate goal, that is, a transcendental theory of justice. Thus, I conclude that transcendental theory is in non- basic cases necessary for justice-enhancing change, and that therefore the Redundancy Claim is mistaken. Note that my arguments against the general validity of the Redundancy Claim do not require that there is an agreement on the transcendental principles of justice, or that these principles are completely spelled out in each and every detail. If there is no agreement, then each disagreeing party will need its own transcendental principles in order to make up their own minds about which injustice-reducing actions to defend. Similarly, completeness is not required for transcendental theories to be useful; in fact, many transcendental principles of justice are plural and often somewhat vague and thus require further interpretation before they can be put into practice. But even if a transcendental account of justice is incomplete, or even if it consists of a plurality of principles which need to be weighted by public reasoning or by intuition, it 4 does give us a set of standards or ideals against which to judge different possible paths of social change. The ‘navigation maps’ which we require to guide reasoned choice of policies, strategies and institutions for questions of non-blatant injustices must include a specification of our ultimate goal, that is, transcendental principles of justice. Vindicating the Rebalancing Claim So far I have advanced two arguments for why I believe that the Redundancy Claim is not correct. Yet suppose the redundancy claim were correct: what would have been its implications? A weak implication would be that theorists of justice devote too much attention and energy to transcendental theory, since it is neither necessary nor sufficient for our ultimate goal, which is to reduce injustices. Still, transcendental theory would play some other useful role, and we therefore shouldn’t abolish it entirely. Rather, we should restore the balance between the attention we devote to transcendental theory and non-transcendental theory. A stronger implication would be that theorists of justice should stop conducting all transcendental theorising, since it does not contribute anything towards that goal or any other valuable goal. I don’t think Sen would endorse the strong implication, given how important he judges John Rawls’s theory of justice to be, which Sen believes to be a transcendental theory. I read Sen’s work, both in The Idea of Justice and other work, as supporting the weak implication. Sen’s concern is that theories of justice should ultimately be ‘practical’. Sen describes the aim of the theory of justice as “to clarify how we can proceed to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect injustice” (p. ix). Not all philosophers espouse this view: some believe that the proper role of political philosophy is not to answer the question what to do, but rather to seek the truth, whether or not the truth makes any difference to what we should do. Of course, the truth-seeking and the practical need not be mutually exclusive. Indeed, the practical approach to justice needs to be based on true knowledge about the world and about justice, since otherwise the guidance that the philosopher harvests from her reasoning may be misleading. Yet we don’t necessarily need to know the full truth, and all possible details of the truth: at some point the added value to practice of further truth-seeking knowledge becomes infinitesimally small, and may therefore not be the best use of our scarce time. There is a growing feeling among some political philosophers that we have reached that point, and that the status incentives in (Anglo-American) academic philosophy departments are biased in favour of those seeking further details regarding the truth of justice, even if the added practical value has become tiny, and despite the fact that enormous amounts of work need to be done in non-transcendental theory. If we really care about justice, and not merely enjoy the intellectual stimulation that political philosophy offers, we should be doing something about it, 5 for example by collaborating with policy scholars in figuring out how to design philosophically-sound justice-enhancing policies, or collaborating with critical citizens or social activists in thinking about how to effectively analyse cases of gross injustice, including those that are caused by the state. Yet that kind of ‘applied’ or ‘interdisciplinary’ work, which is often muddy and not elegant at all, doesn’t enjoy high status in Anglo-American political philosophy. Are we having our priorities right? Sen argues in The Idea of Justice that mainstream theorists of justice have their priorities wrong: “Importance must be attached to the starting point, in particular the selection of some question to be answered (for example, ‘how would justice be advanced?’), rather than others (for example, ‘what would be perfectly just institutions?’). … Given the present balance of emphases in contemporary political philosophy, this will require a radical change in the formulation of the theory of justice” (9). Let me call the argument that we need to shift the nature of contemporary theorizing about justice away from the transcendental truth-seeking, towards the practical, and thereby also rearrange and rebalance the status that we allocate to different types of philosophical enquiry, the Rebalancing Claim. The Rebalancing Claim is a weak implication of the Redundancy Claim, and this may perhaps explain Sen’s insistence on the Redundancy Claim. Yet the Rebalancing Claim also follows from Sen’s general argument about the present dominant practice of contemporary theories of justice. In fact, I believe that many philosophers working on specific cases of injustice, such as global justice, gender justice, or environmental justice, reject the Redundancy Claim but endorse the Rebalancing Claim. That particular position acknowledges that transcendental theory does have a role to play, but that it currently enjoys too much status and receives too much attention in academia, and that therefore its role should be much more limited than is currently the case. If the Redundancy Claim is mistaken but the Rebalancing Claim can be convincingly argued for, then I believe that nothing important is lost, and that the claim that is really important is vindicated. Yet while I agree with the Rebalancing Claim, I do have one qualification to add. In one respect I think Sen is too pessimistic in his characterisation of contemporary theorising about justice, since much of the kind of work that he is advocating is already being conducted. For example, there is a huge literature on particular aspects of global injustices, ranging from Iris Marion Young’s analysis of individual and collective responsibilities for the employment conditions of workers in sweatshops, to Leif Weinar’s analysis of why the sale of oil by dictators in oil-rich African countries to oil companies in Europe and the US is a severe property rights violation of the afflicted African populations. 1 These are examples of excellent pieces of theorizing about concrete cases of injustice. If one looks carefully, and not only in the most prestigious journals, there is a huge literature out there that does analyse such cases of 6 injustices, though it may not always attract the spotlights to the same degree as the universal theories of Rawls, Nozick, Dworkin, and others. In my reading of the contemporary literature on justice and injustices, the problem is not so much that this kind of research is not taking place, but rather that among too many philosophers it doesn’t enjoy high status and is not considered ‘theorising about justice’ but rather classified as applied ethics or case studies on injustices. Such attitude underestimates the importance of this type of analysis. Thus, my assessment of the situation differs from Sen’s assessment in so far as I think that the kind of work he is advocating does happen; I rather think the problem lies in the limited status and the non-canonical position of this work compared to more abstract, universal, general theorising about justice. I am grateful to Martijn Boot, Pablo Gilabert, Anca Gheaus, Anders Schinkel and commentators at Crooked Timber for very helpful comments and illuminating discussions, and to the Netherlands Organisation for Scientific Research (NWO) for research funding. 1 Iris Marion Young (2004) ‘Responsibility and global labour justice’, Journal of Political Philosophy, 12(4), pp. 365-388; Leif Weinar (2008) ‘Property Rights and the Resource Curse’, Philosophy and Public affairs, 36(1), pp. 2-32. 
work_4qkxdq4ijngstkger2hww6mytm	----	None 
work_4r4qd7mmczap3jcxajkk442voq	----	               City, University of London Institutional Repository Citation: Birkett, G. (2018). Influencing the Penal Agenda? The Justice Select Committee and ‘Transforming Justice’, 2010–15. The Political Quarterly, doi: 10.1111/1467-923X.12480 This is the accepted version of the paper. This version of the publication may differ from the final published version. Permanent repository link: http://openaccess.city.ac.uk/18900/ Link to published version: http://dx.doi.org/10.1111/1467-923X.12480 Copyright and reuse: City Research Online aims to make research outputs of City, University of London available to a wider audience. Copyright and Moral Rights remain with the author(s) and/or copyright holders. URLs from City Research Online may be freely distributed and linked to. City Research Online: http://openaccess.city.ac.uk/ publications@city.ac.uk City Research Online http://openaccess.city.ac.uk/ mailto:publications@city.ac.uk 1 Influencing the Penal Agenda? The Justice Select Committee and ‘Transforming Justice’, 2010-15 Gemma Birkett Keywords: Justice Select Committee, Parliamentary oversight, political influence, Coalition government, Transforming Rehabilitation. Abstract This article assesses the policy influence of the House of Commons Justice Select Committee, established to oversee the work of the Ministry of Justice following its creation a decade ago. The Committee has, from the outset, overseen many contentious policy and legislative developments in the penal field, although none so extensive as those introduced following the formation of the Conservative-Liberal Democrat Coalition government in 2010. Despite the newsworthy nature of its business, the Committee has, to some extent, operated in the shadows of its high-profile sister, the Home Affairs Select Committee, and has received surprisingly limited attention from criminologists and political scientists alike. Forming part of a wider investigation into the work of the Committee, this article examines the extent to which it was able to influence penal developments during the Coalition years. This period is of particular interest given that it heralded the end of the New Labour administration and welcomed the ‘fresh thinking’ of a Coalition leadership keen to emphasise its progressive attitude towards law and order. While the Committee was able to influence the direction of penal policy on several occasions this mostly occurred as a result of its proactive or niche inquiries. The Committee had less impact when conducting inquiries that assessed the government’s flagship policy agenda, however. Such findings brought into question the ability of the Committee to influence the most significant justice transformations in this era of new penal governance. Introduction This article involves the first empirical analysis of the work of the House of Commons Justice Select Committee from 2010-15. Outlined in the introduction to this Special Issue, the period 2010-15 heralded fundamental changes to the penal landscape. The Coalition government’s ambitious reforms permeated all areas of criminal justice, including fundamental developments in probation, the courts and administrative justice. The Ministry of Justice was one of the greatest casualties of Chancellor George Osborne’s financial axe, swallowing an overall budget cut of over a third between 2010-2015. Reforms in the penal sphere reflected the commitment 2 to austerity and were couched in the language of streamlining, efficiency and greater partnership working. In total, 424 Committee conclusions and recommendations (and the government response to them) were analysed.i These are discussed in terms of those inquiries that could be considered as the ‘most’ and ‘least’ influential in terms of subsequent policy impact. In addition, a news media analysis of Committee coverage during the Coalition parliament was also conducted. Taken together, this crude, although acknowledged, way of analysing policy impact provides an initial insight into the committee/department dynamics of 2010-15 and a starting point for more detailed work in this area. In its analysis of Committee influence, this article draws on the work of Colin Hay who differentiated between ‘conduct shaping’ and ‘context shaping’ power. While conduct shaping power is fairly straightforward to measure, context shaping is indirect and can often take on invisible forms. Hay defined such power as ‘the capacity of actors to redefine the parameters of what is socially, politically and economically possible for others’. ii Hay’s concepts, of particular use in a political analysis of this nature, are true to the spirit of, and indeed build upon, Lukes’ influential three dimensions of power, while also incorporating the earlier work of Bachrach and Baratz.iii The Policy Influence of Parliamentary Select Committees Established in 1979, there are approximately 40 Parliamentary Select Committees in the House of Commons, 18 of which shadow government departments (others are established as sub- Committees or undertake work that is more cross-cutting in nature). Select Committees have a wide-ranging remit that involves scrutiny (of the work of their respective departments), monitoring (of policy and legislative developments) and the provision of constructive ideas. Select Committees have traditionally been criticised for being weak and disorganised, with limited ability to influence the policy process. Two major reforms (the Newton Commission and the Wright Reforms) of the past twenty years have, however, seen vast improvements to the committee system. In 2001 the Newton Commission on Parliamentary Scrutiny called for the introduction of core tasks for committees. These included specific roles focused on strategy, policy, expenditure and performance, draft bills, pre- and post-legislative scrutiny and any public appointments 3 associated with their respective departments, along with a clear expectation for increased public engagement. The Commission also called for the publication of regular progress reports to increase committee accountability. While committee membership has always been cross-party, the Wright Reforms of 2010 (established to improve the procedures and relevance of Parliament) introduced the democratic election of all members by secret ballot, a process previously controlled by party Whips. Both reforms have undoubtedly resulted in a more emboldened Committee system that is now routinely associated with exposing government failings and spotlighting forgotten issues. Committees have been encouraged to shape their own agendas by adopting longer-term inquiries that investigate areas of overlooked policy. It is clear that ‘good Parliamentary scrutiny has significant potential to improve the effectiveness of government’iv, and therefore surprising that research into the policy impact of Parliamentary Select Committees is limited. It is important to note that despite improvements to their structure and remit, committees possess restricted authority. While they have the power to call witnesses to attend their hearings and answer questions, they have no powers to block or propose legislation. The government is under no obligation to accept or evaluate any proposals put forward by committees, yet it is obliged to provide a formal, public response within three months of a report’s publication. Powers notwithstanding, committees provide important functions in their role as impartial scrutineers, and are able to provide far more detailed examinations of government policy (or proposed policy) than is possible in Parliamentary debates. Literature on the influence of select committees is contested, with studies painting a mixed picture of ineffectiveness and impact. A large-scale study conducted by Russell and Benton in 2011v provides the most authoritative assessment of the policy influence of seven committees. Russell and Benton found that a large proportion of committee recommendations were neither accepted nor rejected, and that ‘soft’ acceptances or rejections were more common than absolute ones. While the authors found that committee recommendations are influential, they did, however, conclude that fewer than one in ten of the reports produced by committees could be considered as ‘agenda-setting’. Russell and Benton’s findings echo those of Hindmoor et al. vi who, in their study of the Education and Skills Committee, found that while the government rarely rejected recommendations out of hand, it did not openly welcome others. Instead, and in the majority of cases, it claimed to be already addressing the issues the Committee had raised. 4 Ascertaining policy impact is methodologically challenging, and debate relating to the design of appropriate means to assess committee influence continues. It is acknowledged that a basic tick box approach (where the number of government acceptances to committee recommendations are simply counted) is not in itself sufficient to ascertain influence. This approach does, however, provide a good starting point to highlight the particular climate (welcoming, neutral or critical) within which the report was received, and provides a platform from which to conduct further research. It is important to note that official government responses to select committee reports reveal much in themselves. Ministers and Ministerial teams do not wish to highlight their ignorance of a policy problem (or their inactions in dealing with it) given that any such statements are publicly released. As highlighted in previous research, the majority of government responses are therefore vague, non-committal, or provide an assurance that work is already underway. ‘Acceptances’ on paper may not necessarily result in government action, with further inspection required to ascertain the level of subsequent implementation. It is also important to consider ‘delayed influence’ as it is possible that a rejected or ‘shelved’ recommendation will be incorporated it into a future policy idea at a later stage. Research in this area has also highlighted that policy influence can manifest in both direct (conduct shaping) and indirect (context shaping) forms. Direct influence, such as government acceptance of a measurable recommendation, is relatively straightforward to trace. Yet influence can also take on indirect forms, occurring not in the immediate aftermath of a report’s publication, but feeding into the strategies of others (such as sector lobbyists, for example) or influencing subsequent media debate. The ability to influence media debate is an important test of committee impact. While the relationship between media and agenda-setting is not for debate here, it is clear that the greater the levels of coverage, the more likely a committee can hope to influence the wider climate of opinion. Some committees are adept at doing this, mastering the ability to transcend the narrow and un-newsworthy topic of ‘Parliamentary business’ (think Keith Vaz and Home Affairs, Margaret Hodge and the Public Accounts Committee and John Whittingdale and the Culture, Media and Sport Committee, for example). On rare occurrences evidence sessions become news events in themselves (who could forget Rupert Murdoch’s custard pie?). Research conducted by Kubalavii found that while coverage of select committees has risen since the late 1980s, the news media are largely disinterested in Parliamentary business, PMQs notwithstanding. Ensuring that the results of their inquiries are delivered in newsworthy packages should form a key focus for committees. After all, ‘an 5 unreported but authoritative report is likely to be less influential than a similar report which receives wide coverage’viii. Studying the Justice Select Committee The Justice Select Committee is tasked by the House of Commons to provide critical oversight of the work of the Ministry of Justice and the Attorney General’s Office (including their non- departmental agencies and associated public bodies). This wide remit includes the more obvious policy areas of prisons, probation and the courts, but also includes the provision of oversight for the Crown Dependencies, data protection, devolution and constitutional reform. While membership of the Committee changes, it is possible to surmise an understanding of the overarching principles that guide its work. With ‘the strategic objective of raising the quality of debate on justice’, the Committee views its role: ‘… to promote objective and evidence-based debate about criminal justice policy not only within the Committee but also more widely, … we believe that political and media debate needs to pay more attention to what works in reducing crime, rather than assessing that constantly increased spending on longer prison sentences is an unquestionable benefit to society’.ix In common with views expressed by the wider penal reform lobby, the Committee has been critical of the narrow lens through which successive governments have viewed crime reduction - focusing on the Home Office and the Ministry of Justice - while paying less attention to the fields of health and welfare. Through successive reports it continues to stress the importance of greater investment in and uptake of non-custodial options. It has also repeatedly expressed concern about the impact of austerity on the justice system and questioned the government’s evidence base as it oversees widespread cuts to the prison service, the programme of mass court closures and the legal aid budget, for example. Successive Committee reports underline its progressive penal values, drawing parallels with the group of elite experts, including politicians, who worked to develop liberal penal policy in the post-war period. Indeed, the Committee’s aim to create ‘a ‘safe space’ in which to foster rational and fundamental debate on justice policy’x is reminiscent of this ‘golden era’ model. Despite such parallels, it is important to note that the Committee does not operate in an idealised, post-war penal utopia. A great many of its reports demonstrate its understanding that 6 the justice system must modernise, streamline and make efficiency savings where appropriate. Indeed, prior to the implementation of Transforming Rehabilitation, the Committee expressed interest in the greater use of privatisation in the penal field. While it is not possible to state that the Committee is somehow ‘different’ from other parliamentary select committees, the provision of an ideological ‘mission statement’ provides a clear symbolic marker in this populist policy terrain. The Committee produced 56 publications during the Coalition parliament (in addition to a large amount of other material including letters and responses to consultations), all of which attempted to influence the penal agenda. While not reviewing every publication, this article focuses on fifteen inquiries highlighted by the Committee as important.xi Some of the inquiries were proactive (following a scandal or pressure from campaigners or constituents), while others were more reactive in nature, reviewing government policy or providing post-legislative scrutiny, for example. Many of the inquiries fell under the broad title ‘transforming justice’, including major reports on the probation service, women offenders, older prisoners, crime reduction policies, prisons planning and policy, developments in family courts and reforms to the legal aid budget. It is important to note that other the inquiries reviewed, while not directly falling under the same agenda, were also conducted during a period of unprecedented cuts to the justice budget. They included inquiries on the Freedom of Information Act, EU proposals for data protection, the Capita interpreter contract, the doctrine of Joint Enterprise, the legal situation in relation to missing persons and the presumption of death, the impact of legal aid reforms on mesothelioma claims, manorial rights and the Crown Dependencies of Jersey and Guernsey. Policy Influence The Department outright accepted 68 (16%) of the Committee’s 424 conclusions or recommendations. It implicitly or partially accepted 51 (12%), neither accepted or rejected 134 (32%), implicitly rejected 71 (17%) and outright rejected 51 (12%). It failed to respond (in any form) to 49 (12%). Outright rejections - along the lines of ‘the government rejects’ - were fewer in number than implicit rejections where it was clear that the government disagreed, but had avoided providing a hostile response. Although challenging to gauge whether such results constituted effective work on the part of the Committee (as there is nothing to compare it to), it is interesting to note that the findings are broadly consistent with Russell and Benton’s 7 analysis of the Home Affairs Select Committee during the 1997-2010 period (which until 2007 included the justice brief). Given the space constraints of this article, only certain inquiries are discussed here. These include an analysis of those considered to be most and least influential, along with a synopsis of the coverage they received in the national print media. Four out of the fifteen reports could be considered as conduct shaping, resulting in action from the government in the form of a further review or the publication of draft legislation. Research was conducted to qualify the nature of any government action taken, although this was only possible where the Committee’s recommendation was measurable. Most Influential: Joint Enterprise, Presumption of Death, Women Offenders and Mesothelioma The below examples demonstrated the Committee’s clear ‘conduct shaping’ credentials: pressuring the government to publish new policy guidance, kick-starting a sluggish policy agenda and delaying controversial plans. These different forms of influence are to be commended and illustrated the important work that the Committee undertook. It was regretful, therefore, to uncover a number of wasted opportunities where the government provided short- term action that did not result in longer-term change. The Committee’s inquiry into the common law doctrine of joint enterprise in 2012 was prompted by concerns expressed by campaigners and victim’s groups. The doctrine, a form of secondary liability, is often used in murder cases, and allows more than one person to be charged and convicted of the same crime without requiring proof of a direct involvement. The Committee received evidence from a range of parties who highlighted its inconsistent application, disproportionate use against young persons and complexity for juries. In its final report, the Committee called for the enshrinement of the joint enterprise doctrine in statute to ensure better clarity for all involved in the criminal justice system, the creation of clear guidelines for prosecutors and greater clarity of the number of people charged under the doctrine each year. Of its six conclusions and recommendations, the government accepted two, rejected one, and ignored three. While it refused to consult on the new legislation proposed by the Committee, it accepted the recommendation for the Director of Public Prosecutions to create guidelines for prosecutors on handling joint enterprise cases and promised that the CPS would look to collect data on the number of joint enterprise cases in future (a number previously unknown). New guidelines were duly published, and data on the number of cases involving 8 joint enterprise were published by the CPS in 2012 and 2013. The CPS has not, however, published updated figures since this date. The inquiry into the presumption of death in 2012 was another proactive endeavour. The Committee was prompted to investigate the situation following correspondence from constituents (an issue growing in prominence following media coverage of the high-profile disappearance of Claudia Lawrence in 2009). Receiving evidence from a wide-range of campaign groups and activists, the inquiry concluded that families of missing persons suffered not only emotionally and financially, but also from a ‘legislative patchwork of bewildering complexity’ and an unacceptable lack of information from authorities (including police, lawyers and financial institutions). The government accepted seven of the Committee’s ten conclusions and recommendations and duly published better guidance to help families navigate the law. The Committee also called for two legislative changes; first to allow families to obtain a certificate of presumed death, and second to create the legal status of ‘guardian of the affairs of a missing person’. Both recommendations are now enshrined in law (The Presumption of Death Act 2013 and, following a government consultation, the Guardianship (Missing Persons) Act 2017), although it is important to note that both Acts started as a Private Members Bills and not legislation originally put forward by the government. The women offenders inquiry of 2013 sought to review progress five years after the publication of the Corston Report (a government-sponsored inquiry into the particular vulnerabilities of women in prison). Another proactive project, the Committee critiqued government progress on women’s penal policy which had virtually disappeared from the policy agenda following a sustained period of Ministerial focus during the final years of New Labour. Among its thirty- three recommendations and conclusions, the Committee called for more visible Ministerial leadership and the publication of an immediate strategy for progress. The government accepted (or implicitly/partially accepted) sixteen out of the Committees thirty-three conclusions and recommendations. However, its largely defensive response refuted the Committee’s conclusions that it treated women in the penal system as an ‘afterthought’, and disagreed with the Committee’s recommendation that it should commission women’s services separately in future. The government made no commitments to protect the extremely popular network of women’s community centres (utilised by many women serving community sentences) once they were moved to the control of private offender management companies in 2015, arguing that market forces would determine their future. 9 Disagreements notwithstanding, the inquiry undoubtedly refocused government thinking on this issue with action commencing during the inquiry itself. Tangible progress came in the form of the publication of a six-page strategy document outlining government visions for women in the criminal justice system. Responding to the Committee’s criticism that it did not consider women’s penal policy as a priority, the government promised to publish yearly progress reports, although this occurred just once in 2014. In addition to the publication of the strategy, the Ministry of Justice established a high-level advisory board which included membership from key stakeholders in the women’s penal field. While its first leader, Justice Minister Helen Grant, was not in post for long, the advisory board has weathered the Ministerial merry-go- round to keep women’s penal policy on the political agenda. Changes in the penal field notwithstanding, the Committee’s inquiry certainly revived this stagnant policy area to ensure a renewed focus on women, although it is regretful that no ‘updates’ have been published since 2014 with the current Ministerial focus hard to ascertain. The Committee’s inquiry into mesothelioma claims in 2014 was prompted by the Government’s decision to apply sections 44 and 46 of Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2014 to mesothelioma claims as well as other personal injury claims. The planned effect of these sections was to remove the capacity of successful claimants to recover certain costs from the losing party. This was particularly contentious in the case of mesothelioma, a disease caused by exposure to asbestos. The Committee concluded that the government’s review of mesothelioma claims (the consultation prior to its decision to apply LASPO reforms to such cases) was not prepared in a thorough manner and recommended that that it commission a further independent review of the risks involved. Crucially, the government’s response to the Committee was delayed due to a judicial review on the matter. Consistent with the views expressed by the Committee, the High Court overturned the government’s decision and ruled that mesothelioma claims should operate on a pre-LASPO basis. While the government did not explicitly act on any of the recommendations made by the Committee, it is clear that its inquiry, in conjunction with the judicial review, ensured that the government halted its plans. Keen to demonstrate its commitment to mesothelioma sufferers, however, the government went on to introduce new reforms in the Mesothelioma Act 2014. Least Influential: Manorial Rights, Legal Aid and Crime Reduction Policies The Committee had less influence following those inquiries that the government considered to be too niche or where it called for a pause or re-think of the overarching penal agenda. On 10 several occasions the Committee was informed that it would not be cost-effective to implement its recommendations (or that they were simply not a priority); the government also refused to pause to reconsider its most contentious policy proposals. The Committee’s inquiry into manorial rights (rights which are retained by lords of the manner when the land became freehold, including sporting, hunting and fishing rights and the right to hold markets) in 2015 was prompted by the coming into effect of new provisions in the Land Registration Act 2002 which required landowners to claim their rights to land by virtue of a register. The deadline in 2013 prompted 9,000 registrations and resulted in thousands of unsuspecting homeowners having claims made on their land or properties. The Committee received many representations which called for the abolition of manorial rights (viewed as a feudal throwback) or a review of the law in this area. The Committee refused to take a stance, but instead recommended that the Law Commission should undertake research to ascertain whether the law relating to manorial rights should be abolished or retained, and whether legislation could address any compensation rights if it was amended. The government did not recognise the issues raised by the inquiry as causing a significant issue, and while thanking the inquiry for investigating, viewed further research or a fundamental review of manorial rights as ‘disproportionate’. In a time of scarce resources, the government made clear that its main focus was on the implementation of the Transforming Rehabilitation agenda. The conclusions of those inquires that fell under this banner received a relatively high level of resistance from government. In 2011 the Committee undertook pre-legislative scrutiny of the government’s proposed reform of legal aid. The government claimed that it was putting a much-needed end to the ‘compensation culture’ and that the reforms would result in greater effectiveness and efficiency. The Committee called on the government to assess more fully the likely impact of the reforms on litigants as well as public expenditure before it embarked on implementation. Of the thirty-four conclusions and recommendations, the government outright accepted just one, and rejected (implicitly or explicitly) seventeen. It stated that a large proportion of recommendations or conclusions (fifteen) were already being worked on independently to the Committee’s inquiry. Demonstrating its intention to press ahead with the agenda and ignore the Committee’s recommendations, the government published a draft format of the Legal Aid, Sentencing and Punishment of Offenders Bill on the same day as its official response to the Committee. It was clear that despite the Committee’s requirement to undertake pre-legislative scrutiny, the government would not be halted in its tracks. 11 The report with the highest number of outright or implicit rejections (32 out of 55) was the Crime Reduction Policies inquiry of 2014. It represented, in many respects, an early audit of the Coalition government’s proposals for Transforming Justice (assessing the government’s approach to cutting crime, including the areas of governance and contract management, community safety, prisons and probation). Among its wide-ranging recommendations, the Committee called on the government to implement better measures to understand variances in re-offending rates, to rectify prison overcrowding, to provide an adequate assessment of the risks involved in implementing the Transforming Rehabilitation reforms and to establish an independent and authoritative body to evaluate the effectiveness of its crime reduction policies. The government’s response to this major piece of work by the Committee (encompassing two separate reports) was largely negative, and did not reflect the conciliatory nature of most other responses. Its defensive tone signalled that while it was perhaps willing to make small-scale policy amendments following niche inquiries, it was not in the business of accepting Committee criticism in relation to more fundamental policy transformations. Influencing the Media Agenda? While crime and punishment is a constituent part of the daily news diet, coverage of the Justice Select Committee pales in comparison. A comprehensive news media analysis demonstrates that between 2010 and 2015, the Committee’s inquiries (all 56) were referenced 114 times in national UK newspapers. Of this figure, 67 articles were directly influenced by a report’s publication (referenced in the headline or providing the main content of the article, for example). This is somewhat unexpected considering the newsworthy and often contentious subjects that the Committee investigates. It is also comparatively less than coverage received by the Home Affairs Select Committee during the 1997-2010 period (which received an average of 17 report-related articles per year versus the 13 received by the Justice Select Committee).xii The majority of coverage highlighted the Committee’s headline findings that were the most critical of government. It is perhaps therefore unsurprising that the greatest levels of coverage were in the left-leaning quality press.xiii Such newspapers – with a long interest in social justice issues – were able to use the Committee’s critical reports to attack the government’s penal record. It is regrettable, therefore, that they also failed to follow up on some of the government’s inactions. 12 The inquiry into joint enterprise was by far the most newsworthy in the sample, mentioned in twenty-seven media articles spanning 2012-2015; the longest coverage from any single inquiry. Most articles referred to individual case studies which highlighted the doctrine’s unfair or inconsistent application. The inquiry into probation was mentioned twelve times, with articles focusing on cuts to the probation budget (which were putting safety on the line) and the increasing levels of red-tape faced by probation officers. Articles covering the prison inquiry (nine in total) similarly focused on cuts to the justice budget and its impact on levels of self- harm and suicide on the custodial estate. The inquiry into the Capita interpreter contract garnered particularly hostile coverage towards the government, with the actions of the Ministry of Justice deemed as shambolic, and costing the taxpayer millions of pounds. The women offenders inquiry also received less coverage than expected (covered in just seven newspaper articles), an unexpected situation given the newsworthiness attributed to female lawbreakers. Finally, given the newsworthy nature of (and previously uncovered) issues covered in the presumption of death inquiry, it is noteworthy that the report received limited coverage, with only five news articles dedicated to its publication. The rules of newsworthiness dictate that unless committees are dealing in controversial issues they are likely to be overlooked by the media. Yet here presents the conundrum. The Justice Select Committee oversees a department which is tasked with one of the most contentious policy briefs in government. Indeed, nothing gets the right-leaning press in more of a spin than the government’s perceived inactions on law and order. Yet empirical analysis reveals that Justice Committee business was of almost no interest to such publications (and of relatively little interest to left-leaning publications also). It is recognised, once again, that while the subject of crime has unparalleled newsworthiness, the development or indeed scrutiny of crime policy does not. Much like the department whose work it oversees, the Justice Select Committee cannot expect to automatically receive media coverage, despite its institutional advantage. And so while the ability to shape the context of media coverage remains an important part of this picture, it makes sense for the Committee to pursue more direct forms of political influence. Influencing the Penal Agenda? Reviewing approximately one third of the Committee’s output during the 2010-2015 Parliament, this article does not attempt to make substantive conclusions about the overall level of policy influence that it was able to exert. It is, however, fair to say that the Committee was 13 unable to exert influence in every inquiry reviewed, and the results of this research are therefore consistent with those of Russell and Benton, who stated that fewer than 10% of committee reports could be considered as agenda-setting. A major critique relates to the wording of Committee recommendations (asking for specific action) and conclusions (stating an opinion). The combination of recommendations and conclusions in long, single paragraphs made it challenging to ascertain what specific action the Committee desired, and allowed the government - in a vast number of cases - to dodge the key point/s. Recommendations were far fewer than conclusions, and given the fact that the government was under no obligation to respond to each point, this felt like a wasted opportunity. While the number of outright rejections to recommendations and conclusions was low, their vague wording paved way for a large number of equally vague ‘non-responses’, indifference or provision the official line. Furthermore, the limited measurability of the Committee’s recommendations meant that there was no clear way to trace whether the government had acted upon them or not. Critique notwithstanding, it is clear that the Committee did have traceable ‘conduct shaping’ impact in a number of areas. In the fields of joint enterprise and the presumption of death, the Committee persuaded the government of the need to introduce new guidelines and legislative reforms. The women offenders inquiry kick-started government action and led to the publication of an official strategy as well as the establishment of a Ministerial working group. These proactive inquiries, undertaken following concerns raised by campaigners, can be viewed as agenda-setting. The longevity or continuation of such influence must be questioned, however, when considering how long the by government ‘honoured’ its promises, a situation exacerbated by the Ministerial merry-go-round in the Ministry of Justice. While there is evidence of sustained action in some cases (such as the publication of guidance still accessible via the internet), other action was short-term despite promises to the contrary. The Committee often fell victim to short-term ‘sweeteners’ and its influence must be measured in terms of its ability to apply long-term pressure. It is clear that more follow-up work in the form of correspondence or inquiries (which it often undertakes) is required. The Committee exerted less impact following those inquiries that were considered to be too niche (with the government refusing to commit resources) or too critical of the government’s own agenda. The government responses to inquiries conducted towards the end of the Parliament (encompassing the topics of crime reduction and prison policy, for example) were 14 certainly more political in nature and framed in the new rhetoric of Transforming Rehabilitation. These more combative and dismissive responses brought into question the ability of the Committee to engage in ‘context shaping’ in relation to the most significant justice transformations. One could question whether the Committee was deliberately undercut in such instances (on the grounds that ideas were against the dominant ideology or that ‘government knows best’), or whether government preparedness to act on recommendations was influenced by its commitment to austerity. It seems that the answer is, unsurprisingly, a mixture of both. In its responses to the Committee, the government routinely mentioned its desire to cut unnecessary spending (in the case of the legal aid budget, for example), but it was also clear that it paid little attention to Committee findings on many occasions (rejecting conclusions while signalling its intention to press ahead with its policy and legislative agenda). Conclusion As this article has demonstrated, conduct shaping is a key part of political influence. But, as argued by Hay, it cannot alone provide the complete picture of power dynamics. The related, although less powerful, concept of advocacy (the championing or promotion of a particular issue) must also be considered in this context. While both are important components of the ‘influence’ equation, one holds more immediate and observable agenda-setting potential. Considering such concepts in relation to the work of the Justice Select Committee – for the very first time - is therefore a useful endeavour. The conclusions of this research reveal that the Committee was most effective in conduct shaping as a result of its smaller, proactive inquiries. It failed, however, to exert context shaping power in relation to the government’s overarching penal agenda, where critical comments were largely met with resistance. Such findings highlight that in this era of new penal governance the Justice Select Committee is just one player in a growing policy network. While it is certainly able to exert forms of political power not available to others (including the ability to exert ‘soft’ power), the government is now accountable to a vast array of service providers who are contracted to administer the penal landscape on its behalf. The Committee must remain robust. As a key network player its attempts to influence or, in the words of Hay, ‘refine the parameters’ of penal policy (one of its key stated objectives) must continue, of crucial importance in this populist policy sphere. Small-scale changes, including greater clarity of the observable government action that it requires along with a capacity to monitor long-term progress, would undoubtedly improve this endeavour. 15 i Responses were coded as: accept, partially/implicitly accept, neither accept or reject (including already underway), partially/implicitly reject/non-answer or reject. ii Hay, C. (2002) Political Analysis: A Critical Introduction Basingstoke: Palgrave, p185. iii For classic discussions of the role of power in the political process see Bachrach, P. and Baratz, M. (1962) ‘Two Faces of Power’ The American Political Science Review 56:4 947- 952, and Lukes, S. (2004) Power: A Radical View Basingstoke: Palgrave iv Institute for Government (2015) Select Committees under Scrutiny: The Impact of Parliamentary Committee Inquiries on Government London: Institute for Government. v Russell, M. and Benton, M. (2011) Selective Influence: The Policy Impact of House of Commons Select Committees. The Constitution Unit: UCL. See also Russell, M. and Benton, M. (2013) ‘Assessing the Impact of Parliamentary Oversight Committees: The Select Committees in the British House of Commons’ Parliamentary Affairs 66:4 772-797 vi Hindmoor, A., Larkin, P. and Kennon, A. (2009) ‘Assessing the Influence of Select Committees in the UK: The Education and Skills Committee, 1997–2005’ Journal of Legislative Studies 15:1 71-89. vii Kubala, M. (2011) ‘Select Committees in the House of Commons and the Media’ Parliamentary Affairs 64:4 694-713. viii Natzler, D. and Hutton, M. (2005) ‘Select Committees: Scrutiny a La Carte?’ in P. Giddings (ed.) The Future of Parliament Basingstoke: Palgrave, p97. ix House of Commons Justice Committee (2015) The work of the Committee in the 2010-15 Parliament. Tenth Report of Session 2014-15. HC 1123 x House of Commons Justice Committee (2015) The work of the Committee in the 2010-15 Parliament. Tenth Report of Session 2014-15. HC 1123 xi As above. xii Russell, M. and Benton, M. (2011) Selective Influence: The Policy Impact of House of Commons Select Committees. The Constitution Unit: UCL, p39. xiii The Independent dedicated the most amount of coverage to Committee reports (38 articles), followed by the Guardian/Observer (27). The right-leaning Telegraph had nineteen articles, the Daily Mail eight and the Times seven. 
work_4rarknin3vbppnka3u53rxr3lm	----	societies Article Victims, Criminal Justice and State Compensation David Miers Emeritus Professor of Law, School of Law and Politics, Cardiff University, Cardiff CF10 2AS, UK; davidmiers2@gmail.com Received: 22 February 2019; Accepted: 17 April 2019; Published: 24 April 2019 ���������� ������� Abstract: This article examines one element of the state’s responses to crime: the provision of a taxpayer-funded compensation scheme for victims of personal and sexual violence. The Criminal Injuries Compensation Scheme 2012 sits within a political context that seeks to ensure that victims of crime are better served by the criminal justice system of England and Wales, the jurisdiction that is the focus of this article. The government’s fundamental policy is that this scheme exists to compensate only those victims who are ‘blameless’, either in terms of their character, criminal record, conduct at the time of the incident, or in their engagement with the criminal justice agencies. It is a policy that illuminates elements of two of the questions that the editors posed for this Special Issue of Societies. Reviewing the increased urgency in government policies concerning the treatment of victims of crime, the first section addresses the question of how, why and when victims came to shape political and criminal justice discourse and practice. The question of how, and to what end, cultural representations have shaped perceptions of victims is addressed in the second and third sections, which examine the notion of victim status and illustrate the ways in which eligible (‘ideal’) victims are perceived and their claims under this scheme are determined. Keywords: victims of crime; ideal victims; criminal justice; state compensation 1. Victims and the Criminal Justice System In any analysis of the criminal justice system (CJS) of England and Wales (but also of almost all other common-law Western systems),1 it has been a commonplace to remark on what some have described as ‘the rediscovery’ [1] (pp. 5–10), the ‘rebirth’ [2] (pp. 69–94), [3] (pp. 7–19), or the ‘re-emergence’ of the victim [4] (pp. 26–28) over the past 50 years, in contrast to their marginalised role as a third party to the criminal trial [5,6]. In truth, while their historical relationship with the CJS might have been more pronounced, victims had never gone away. Even as the state assumed a near-monopoly during the 19th century over the detection, detention, prosecution and disposal of those who break the criminal law [7] (pp. 127–158), victims played a legitimising role, at least in the sense that the unlawful infringement of their personal autonomy warranted state condemnation via the criminal trial. As these and other analyses have documented, this did not carry with it a corresponding stake in the outcome of the trial. Here the victim’s principal role was to give evidence in support of the Crown. Victims were little more than witnesses to the incident in which they were injured or their property stolen from them, and were, for the most part, subject to the same rules governing cross-examination by the defendant as was any other witness; conditions that, with the exception of child and rape victims, continue to apply. As third parties, they had no right to put their own case for recognition of the injuries or losses they had sustained, or for possible redress, as had been the case, notably, by 1 ‘CJS’ is the standard abbreviation used by the Ministry of Justice. Societies 2019, 9, 29; doi:10.3390/soc9020029 www.mdpi.com/journal/societies http://www.mdpi.com/journal/societies http://www.mdpi.com http://dx.doi.org/10.3390/soc9020029 http://www.mdpi.com/journal/societies https://www.mdpi.com/2075-4698/9/2/29?type=check_update&version=2 Societies 2019, 9, 29 2 of 13 means of prosecution for reward [8] (chs. 3–6). Any judicial satisfaction of these concerns became a matter for the victim’s civil action against the offender. As is also well documented, the government has, over the past half-century, made substantial changes to the relationship between victims of crime and the CJS. This victim focus gained traction as a predominantly state-led response to the collapse of the rehabilitative ideal [9] (pp. 9–10) and was designed to lead to what the government characterised as a ‘rebalancing’ of criminal justice policy in favour of the victim’s interests [10]. No longer marginalised, ‘the rising visibility of the victim’ in the 1960s and 1970s’ [11] (p. 24) [12] recast that relationship in a number of ways, intended to ‘make sure that the victim’s voice is heard at the heart of Government’ [13] (p. 8). This is a claim that for many critics remains unfulfilled, but which in practice presents a number of challenges to an even-handed criminal justice system [14,15]. These ideological concerns were coupled with an instrumental recognition that as gatekeepers to the CJS, victims’ willingness or otherwise to engage with it by reporting crime and supporting a prosecution is likely to be influenced by their perception of the extent to which the system both recognises their injuries and reliably produces the outcomes they reasonably expect. Those outcomes are ‘that offenders are caught, that they are punished, and that they are dealt with in a way that reduces the likelihood of their re-offending and creating more victims’ [16] (p. 8). These changes also implied an increasing degree of inclusiveness in which victims have, in a further extension of the marketplace analysis of the CJS, become consumers of its services [17] (pp. 24–25). Like the consumers of health care, financial, local authorities or legal services, victims of crime now have their own complaints procedures where the criminal justice agencies fail to deliver on their ‘key entitlements’ to be informed about the progress and the outcomes of those agencies’ decisions. First published in 1990 as the Victims’ Charter, these entitlements are detailed in the current Code of Practice for Victims of Crime (Victims’ Code) [18], restated in 2015 to give effect to Article 14 of the 2012 Victims Directive.2 However, it should be recognised that while the Victims’ Code comprises a formal recognition of the state’s obligations to engage with them and to provide for their security [19,20], its entitlements also carry with them a mutual obligation to engage with the CJS. Thus, victims of crime may, variously, and at different stages in the CJS, be characterised as: • both suppliers (e.g., to the police about an offence against them) and recipients of information (e.g., from the police concerning their response to that report); • partners in crime prevention (e.g., in target-hardening their homes, or taking personal safety measures); • the beneficiaries of remedial arrangements (e.g., concerning such matters as the giving of evidence in rape trials, or of the availability of state-funded, and where they are convicted, of offender compensation); and • as participants in the system (e.g., in particular via restorative justice). Modern concepts of social citizenship assert that where the state supports their rights to health and welfare provision, citizens have a corresponding responsibility to take care of their bodily (e.g., to keep fit and not to smoke) and economic (e.g., to seek employment) well-being, as conditions for their access to that provision [21,22]. In the same way, victims of crime may be said to have responsibilities to the CJS that correspond to their access to its entitlements [23] [24] (p. 57). As a judge of the Upper Tribunal put the matter when dealing with paragraph 23 of the Criminal Injuries Compensation Scheme 2012 (CICS 2012), which provides that an award will be withheld unless the applicant has cooperated as far as reasonably practicable in bringing the assailant to justice, ‘a person who seeks compensation from 2 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L315. Societies 2019, 9, 29 3 of 13 the State in respect of a criminal injury ought, as a quid pro quo, to assist the State to prosecute the offender insofar as that may be appropriate’.3 The legislation that authorised the Victims’ Code also established the Victims’ Commissioner,4 whose role is to promote the interests of victims and witnesses and to encourage good practice in their treatment by the CJS. The implementation of victims’ entitlements under the Victims’ Code, which the Commissioner also regularly reviews, engages the full range of the CJS’s actors. It identifies 14 ‘service providers’, of whom the police, the Crown Prosecution Service (CPS), HM Courts and Tribunals Service, the National Probation Service and the Parole Board are some of the principals. In addition to these various initiatives, there have been important changes in substantive and adjectival law designed to secure more convictions by directly or indirectly addressing victims’ concerns, in particular in connection with their place in the criminal trial [25] (pp. 116–190). More recent changes include strengthened statutory duties on sentencing courts to order offenders to compensate their victims,5 and a new non-statutory procedure by which victims can challenge decisions by the CPS not to prosecute in their case.6 These changes are not uncontroversial, typically presenting normative and ideological tensions between the public and the private interest in what the state and the victim recognise as criminal ‘justice’. These tensions are illustrated, for example, by the continuing controversy concerning reform of the evidential rules governing the cross-examination of both adult and child victims of sexual offences,7 the CPS’ failure to disclose unused evidence of relevance to the defence [27], and individual victims’ concerns about what they perceive as the ‘injustice’ of potentially lenient sentences in their own cases.8 The success of these developments and the expectations that they have encouraged have faced two criticisms. The first is that while victims may, in other contexts, seek a judicial review of these service providers’ decisions,9 none of the entitlements in the Victims’ Code is of itself legally enforceable. Where they ‘feel’ that their ‘entitlements have not been met or that any service provider has not delivered their duties under the Code’, a victim may make a formal complaint to that provider. However, the provider’s response does not carry with it an obligation to take any further action or to provide any other redress. In its first review of service providers’ compliance with the complaints procedure, the Victims’ Commissioner found that most of the victims interviewed said they had not been made aware 3 R (RW) v First-tier Tribunal (as successor of the Criminal Injuries Compensation Appeals Panel) [2013] AACR 8 [24] (Judge Rowland). 4 https://victimscommissioner.org.uk/. The Domestic Violence, Crime and Victims Act 2004 also established a Victims’ Advisory Panel for victims of crime and their families to have a say in the reform of the CJS. This was abolished in 2013 (The Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013, 2013 No. 2853) but re-established as the Victims’ Panel with effect from 6 February 2017; Hansard, House of Commons, Written question 64616, Victims’ Panel, answered 27 February 2017 (Dr Philip Lee MP, Ministry of Justice); see also https://www.gov.uk/government/news/criminals-paying-more-than-ever-to- help-victims. 5 Section 130(2A) and (3) the Powers of Criminal Courts (Sentencing) Act 2000 now require a sentencing court to consider whether to make a compensation order when it has power to do so, and to give reasons where it does not do so. 6 Crown Prosecution Service, Reconsidering a Prosecution Decision, taking effect from June 2013; https://www.cps.gov.uk/legal- guidance/reconsidering-prosecution-decision. The CPS’ Victims’ Right to Review Scheme was introduced to give effect to Article 11 of the Victims’ Directive; it also responds to the Court of Appeal’s criticisms in Christopher Killick [2011] EWCA Crim 1608; and see R v DPP and Boyling [2018] EWHC 3508 (Admin). 7 Crown Prosecution Service, Special Measures; https://www.cps.gov.uk/legal-guidance/special-measures [26]. Similar criticism has been levelled at the current rules permitting personal cross-examination by the alleged abuser in family court proceedings concerning domestic abuse, currently being addressed in HM Government, Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill (CP 15, January 2019). 8 Crown Prosecution Service, Unduly Lenient Sentences; https://www.cps.gov.uk/legal-guidance/unduly-lenient-sentences. 9 For example, the decision by the Parole Board where it was considering an offender’s early release from prison, R (DSD and NBV) v The Parole Board of England and Wales [2018] EWHC 694 (Admin) (John Worboys). Responding to this decision, the government is to introduce a new mechanism by which victims who believe a decision may be fundamentally flawed will be able to make a case for reconsideration by Ministry of Justice official, rather than having to resort to the courts and engage legal representation to argue their case; House of Commons Debates, vol 654, ws cols 5–6, (4 February 2019); https://hansard. parliament.uk/commons/2019-02-04/debates/19020414000011/ParoleBoardReconsiderationMechanismAndRulesReview. https://victimscommissioner.org.uk/ https://www.gov.uk/government/news/criminals-paying-more-than-ever-to-help-victims https://www.gov.uk/government/news/criminals-paying-more-than-ever-to-help-victims https://www.cps.gov.uk/legal-guidance/reconsidering-prosecution-decision https://www.cps.gov.uk/legal-guidance/reconsidering-prosecution-decision https://www.cps.gov.uk/legal-guidance/special-measures https://www.cps.gov.uk/legal-guidance/unduly-lenient-sentences https://hansard.parliament.uk/commons/2019-02-04/debates/19020414000011/ParoleBoardReconsiderationMechanismAndRulesReview https://hansard.parliament.uk/commons/2019-02-04/debates/19020414000011/ParoleBoardReconsiderationMechanismAndRulesReview Societies 2019, 9, 29 4 of 13 of the Victims’ Code or of their entitlements, and did not know what to do if they had concerns. Almost three quarters of those who had complained were unhappy with the response that they received.10 The second criticism, also illustrated by research conducted by the Victims’ Commissioner, is that the implementation of such other initiatives as offering victims the opportunity to engage in restorative justice with their offenders, and on offering them the opportunity to make a Victim Personal Statement when the court is considering its sentence on their offender, has been patchy.11 Against the background of increasing rates of recorded sexual offences and of crimes of violence against the person involving knives,12 the terms of reference for the Ministry of Justice’s review of CICS 2012 asserts that ‘compensation is an important part of government provision of end-to-end support for victims of violent crime’.13 However, there has been growing criticism that when dealing with their claims, the Criminal Injuries Compensation Authority (CICA), the statutory agency responsible for dealing with applications made under CICS 2012, is failing to recognise the impact of the offence on the victim. The Victims’ Commissioner ’s Review of the scheme, published in January 2019, found that the interviewed victims felt validated when the impact of the crime had been recognised by society in the form of an award of compensation, but the process of making their claim was often traumatic: ‘we have an overly complex transactional process, which pays insufficient regard to the complex needs of its users, many of whom are likely to be suffering from the effects of trauma.’14 Responding to what were, by 2015, long-standing criticisms, the Conservative Government indicated that it would bring forward measures ‘to increase the rights of victims of crime’, which would ‘build on the existing Victims’ Code to guarantee greater protections for victims and witnesses in the CJS, including that victims of crime have the right to make a Victim Personal Statement and read it out in court at sentencing and at the Parole Board.’15 No such measures were introduced, but in 2018, the government published its cross-departmental Victims Strategy, whose overarching aims are to consolidate the reforms that have been made and to strengthen them ‘to ensure victims have the right help in the aftermath of a crime and are properly supported in the process of seeing justice delivered’ [29] (p. 8). There are many specific proposals, notably ‘to introduce new guidance for criminal justice agencies to provide practical advice to assist when explaining the Victim Personal Statement process to victims’. Of potentially greater significance for the implementation of the Victims’ Code is the government’s proposed consultation on a Victims’ Law, which will address the procedural limitations to making sure that victims receive the services to which they are entitled, and to holding criminal justice agencies that fail to deliver them to account. 2. The Social Construction of Victims of Crime ‘What does it mean to be a victim? Why is it this status is conferred on some and denied to others?’ [30] (p. 45). Positivist victimology had sought to explain victimisation by an examination of those held (typically by formal criminal justice processes) to be victims, in particular by a concentration 10 Victims’ Commissioner, A Review of Complaints and Resolution for Victims of Crime (2015) p. 5; https://s3-eu-west-2.amazonaws. com/victimscomm-prod-storage-clhgxgum05k1/uploads/2015/01/A-Review-of-Complaints-and-Resolution-for-Victims-of- Crime_January20151.pdf. 11 On victim personal statements (alternatively called victim impact statements [28], see Victims’ Commissioner, Victim Personal Statements 2017/18 (2018); https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2018/10/ VPS-slide-pack-2017-18-FINAL.pdf; and on restorative justice, Victims’ Commissioner, A Question of Quality: A Review of Restorative Justice, Part 2—Victims (2016); https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/ uploads/2016/11/VC-review-into-restorative-justice-services-part-2_November-2016.pdf. 12 Some of these increases are attributable to better recording; otherwise, there has been ‘no change in overall violent offences estimated by the CSEW (1,389,000). Office for National Statistics, https://www.ons.gov.uk/peoplepopulationandcommunity/ crimeandjustice/bulletins/crimeinenglandandwales/yearendingseptember2018; Sections 2 and 6. 13 http://data.parliament.uk/DepositedPapers/Files/DEP2018-1283/terms_of_reference_CICS_Review.pdf. 14 Compensation without re-traumatisation (2019); https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage- clhgxgum05k1/uploads/2019/01/CIC-report-FINAL.pdf, p. 97. 15 Queen’s Speech 2015: Background Briefing Notes; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/430149/QS_lobby_pack_FINAL_NEW_2.pdf#page=94. https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2015/01/A-Review-of-Complaints-and-Resolution-for-Victims-of-Crime_January20151.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2015/01/A-Review-of-Complaints-and-Resolution-for-Victims-of-Crime_January20151.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2015/01/A-Review-of-Complaints-and-Resolution-for-Victims-of-Crime_January20151.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2018/10/VPS-slide-pack-2017-18-FINAL.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2018/10/VPS-slide-pack-2017-18-FINAL.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2016/11/VC-review-into-restorative-justice-services-part-2_November-2016.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2016/11/VC-review-into-restorative-justice-services-part-2_November-2016.pdf https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingseptember2018 https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingseptember2018 http://data.parliament.uk/DepositedPapers/Files/DEP2018-1283/terms_of_reference_CICS_Review.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2019/01/CIC-report-FINAL.pdf https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2019/01/CIC-report-FINAL.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/430149/QS_lobby_pack_FINAL_NEW_2.pdf#page=94 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/430149/QS_lobby_pack_FINAL_NEW_2.pdf#page=94 Societies 2019, 9, 29 5 of 13 on the notion of victim-types, on victims of interpersonal crime and on those who contribute to their own victimisation. This approach signally failed to explain or advance an understanding of why and how some persons who sustain harm are regarded as victims of that harm, and others are not [31]. By contrast, it is now widely accepted that whether a person who has sustained harm is called a ‘victim’ is contingent on, and performs important social functions that follow from, the observer’s view of the world in which that harm has been sustained. In common with the label ‘offenders’, ‘victims’ are not a homogeneous subset of the population possessing certain characteristics by which they can be commonly identified and set apart from non-victims but are socially constructed, and constructed for different purposes and with different consequences. In short, ‘the very concept of victimhood can be viewed as an identity or status developed through a process of publicly validated construction’ [32] (pp. 179–180), [17] (pp. 22–24). As Nils Christie and others have observed, the concept ‘victim’ is complex, fluid and systemically contested [33], [17] (pp. 25–31), [34] (pp. 47–52), [35]. From the observer's standpoint, an initial and major problem in deciding whether to label a harmed person a ‘victim’ lies in the fact that social cues and signs may be vague or ambiguous. One response to this pervasive social phenomenon has been the development of conventions that stereotype certain instances of suffering as victimising events. Paradigm instances comprise elderly victims of robberies, burglaries and assaults, and children who are sexually abused. These are Christie’s ‘ideal victims’: Persons or categories of individuals ‘who—when hit by crime—most readily are given the complete and legitimate status of being a victim’ [33] (p. 18). Some of these conventions are formalised as legal, medical or psychiatric norms; others, such as those held within family or peer groups, may be less well defined. However well formalised, though, that response may well entail some expectations that the victim holds of those conferring the label; for example, sympathy and various forms of benign intervention designed to ameliorate the harm. The key point is that to label a person a ‘victim’ has significant resource implications for both private (emotional or other support) and public (medical and welfare provision) economies, as is the case with state compensation schemes where public funds are engaged [23] (p. 62). A corollary of the expectations that victims may have of those who have accorded them victim status is that those others may also have expectations of how victims should themselves conform to the accepted indicators of that status; to be a victim is also to occupy a social role. Ideal victims of crime do not provoke or instigate the violent encounter in which they are injured. However, as in the case of claimants to CICS 2012, discussed in the following section, drawing a normative (and in that case forensic) distinction between ideal and non-ideal victims can be highly contentious. ‘When victims are not faultless [ . . . ] They become much more problematic, both as an object of public empathy but also in terms of their entitlement to formal compensation on the part of the state’ [36] (p. 115), [37] (pp. 54–59). Victims may be expected, and be permitted, to voice anger against their offender. Nonetheless, there are limits, some legal, to what the role of a crime victim properly entails. Anger mediated through the CJS is acceptable (for example, in a victim personal statement), but not through vigilantism, where victims may, through their use of disproportionate force against the offender, themselves be labelled an offender [38]. One of victimology’s major weaknesses has been its failure to reflect on the foundational nature of criminal law [23] (pp. 49–68).16 The law does not talk of ‘victims’ but of ‘offences’, many of which, but by no means all, do contemplate harm (or its potential) to the interests of an identifiable person; that is, to their bodily or sexual integrity, or to a ‘protected characteristic’ recognised in law.17 Where such 16 It may be noted that the victim surcharge, a levy payable by offenders on conviction, applies to all offences, including those that can have no direct victim. The surcharge benefits all victims indirectly via its contribution to the government’s Victim and Witness General Fund, which supports services for victims of crime. 17 The nine ‘protected characteristics’ listed in section 4 of the Equality Act 2010 consolidate the grounds of unlawful discrimination that existed in a number of earlier enactments. See Equality and Human Rights Commission, Protected characteristics; https://www.equalityhumanrights.com/en/equality-act/protected-characteristics. https://www.equalityhumanrights.com/en/equality-act/protected-characteristics Societies 2019, 9, 29 6 of 13 characteristics were once largely confined to persons performing some official function (e.g., police officers, postal workers, the clergy), the criminal sanction now extends to offences against a wide range of personal, rather than functional, protected characteristics, notably, ‘hate crimes’ [39,40]. Some of these are discrete offences,18 while others, where they are motivated by hostility or demonstrate hostility towards the victim's disability, race, religion, sexual orientation (or transgender identity, constitute aggravating features of established offences;19 but they all may justify an uplift in sentence for those convicted of such an offence.20 Many of these extensions of the criminal sanction are the product only of the past decade or so and are symptomatic of the constant expansion of the boundaries of harm [34] (pp. 30–34), see also [35] (passim). A recent political critique identified what the author sees as the unwanted social consequences in a liberal democracy of an untrammelled notion of ‘victimhood’ [41],21 implicitly asking whether there can or should there be any limits to: • the kinds of subjects (persons/animals (warm or cold blooded)22/living/inanimate,23 environmental24), or; • the harms (bodily/mental/physical/economic/aesthetic25); • that are sustained directly or indirectly (relatives/viewers of those harms26); • at the hands of other persons (or by natural events27). Some of the examples cited in the footnotes use the label ‘victim’ to categorise the deleterious effects of the exploitation of the world’s natural resources. No doubt that exploitation deserves serious attention, but the question that they prompt is whether it is helpful or appropriate to label countries or destroyed artefacts as ‘victims’. We may recognise that the parameters that influence which harmed persons will be labelled victims and thus have a legitimate call upon society’s resources are fluid and uncertain, but there may also be a need to recognise the implications of yet broader victim paradigms. Does the promiscuous use of the word both dilute its use when applied to human suffering and raise expectations about benign interventions that cannot be met? The questions implicit in the ‘victimhood’ critique are important for the following reasons: 1. that to call someone a victim is to make a statement about our moral/ethical view of the world in which the harm was sustained; 2. that we would not normally use the label where the harm is trivial or fanciful because that devalues its use where we wish to regard seriously harmed persons as victims, for example, who have been raped or otherwise subject to unwanted sexual contact or exploitation; 3. that the use of the label carries with it a bundle of expectations that to a greater or lesser degree draw upon our private and public resources; 18 Racially or religiously aggravated offences; Crime and Disorder Act 1998, sections 28–32. 19 Criminal Justice Act 2003, sections 145–146. 20 Crown Prosecution Service, Hate crime; https://www.cps.gov.uk/hate-crime. Home Office, Hate Crime, England and wales, 2017/18; Statistical Bulletin 20/18, 16 October 2018, ISBN: 978-1-78655-706-3. 21 I also googled ‘victimhood’ and ‘we’re all victims now’, which yielded dozens of hits; ‘victimhood chic’ captures the flavour of many politically driven critiques. 22 ‘Plastic-bag-swallowing-sperm-whales-are-victims-of-our-remorseless-progress’, https://www.theguardian.com/environment/ shortcuts/2018/may/23/. 23 Archaeological Victims of ISIS Rise Again, as Replicas in Rome’, https://www.nytimes.com/2016/10/07/world/europe/rome- artifact-reconstruction-isis.html. 24 The Ivory Coast and Ghana are ‘the biggest victims of deforestation’, https://www.theguardian.com/environment/2017/sep/ 13/chocolate-industry-drives-rainforest-disaster-in-ivory-coast. 25 ‘Culturally the [Elgin marbles] are presented as abduction victims, forcibly separated from the Greek homeland’, F. Rose-Greenland, ’The Parthenon Marbles as icons of nationalism in nineteenth-century Britain’ (2013), doi:10.1111/nana.12039. 26 ‘We had to stand there and watch them burn to death’; https://www.independent.co.uk/news/uk/home-news/grenfell-tower- inquiry-victims-family-evidence-rania-ibrahim-a8363311.html. 27 ‘Philippines: Dozens killed by typhoon as rescuers rush to aid of victims in north’ https://edition.cnn.com/2018/09/16/asia/ typhoon-mangkhut-ompong-philippines-intl/index.html. https://www.cps.gov.uk/hate-crime https://www.theguardian.com/environment/shortcuts/2018/may/23/ https://www.theguardian.com/environment/shortcuts/2018/may/23/ https://www.nytimes.com/2016/10/07/world/europe/rome-artifact-reconstruction-isis.html https://www.nytimes.com/2016/10/07/world/europe/rome-artifact-reconstruction-isis.html https://www.theguardian.com/environment/2017/sep/13/chocolate-industry-drives-rainforest-disaster-in-ivory-coast https://www.theguardian.com/environment/2017/sep/13/chocolate-industry-drives-rainforest-disaster-in-ivory-coast https://www.independent.co.uk/news/uk/home-news/grenfell-tower-inquiry-victims-family-evidence-rania-ibrahim-a8363311.html https://www.independent.co.uk/news/uk/home-news/grenfell-tower-inquiry-victims-family-evidence-rania-ibrahim-a8363311.html https://edition.cnn.com/2018/09/16/asia/typhoon-mangkhut-ompong-philippines-intl/index.html https://edition.cnn.com/2018/09/16/asia/typhoon-mangkhut-ompong-philippines-intl/index.html Societies 2019, 9, 29 7 of 13 4. that the greater the number of persons included in (1), the higher the level of expectations under (3), and therefore, other things being equal, the fewer the persons in (3) whose expectations will be met; 5. that the greater the number of persons included in (1), the more likely it is that our concern for one group of victims will be displaced in favour of a more clamorous or better organised group; and 6. that the greater the number of persons included in (1), the more likely it is that the significance of the word ‘victim’ will be diluted. 3. The Criminal Injuries Compensation Scheme and the Ideal Victim Much of the literature that discusses these aspects of the social construction of victims and of the implications of that construction for persons harmed by criminal offences focuses on the use of the label in victimological and broader social discourse. With the exception of the literature examining the notion of the ‘ideal’ (female) victim of rape and the consequent implications for the law of evidence and the conduct of a trial, there has been comparatively little discussion of that construction’s implications for a crime victim’s legal remedies, whether against the offender or the state.28 Given that they are generally impecunious, civil actions for damages against offenders are very rare, and even where ordered to pay compensation on conviction to their victims, the sums are usually less than what could have been ordered in civil litigation. The reason for this is that the sentencing court must, before making an order, take account of the offender’s means.29 By contrast, CICS 2012 is a compensation scheme that offers a realistic financial remedy for victims who sustain serious physical or mental injury as a result of a violent or a sexual offence. This statutory scheme was made in 1996, replacing a common law scheme that was first introduced in 1964. The 1996 Scheme, last revised in 2012, receives nearly 33,000 applications a year, of which approximately two-thirds are resolved in the victim’s favour, as either a full or a reduced award. Compensation for the victim’s injury (or death) is assessed by reference to a tariff, which applies fixed levels of awards (from £1000 to £250,000) that notionally correspond to the severity of the injury. CICS 2012 also compensates for loss of earnings assessed by reference to statutory sick pay, and for special expenses where the victim requires long-term care. The total award in any one case is capped at £500,000; around £150 million is paid out annually; see generally [42].30 The key difference between a civil action against the offender and a claim under CICS 2012 is that the scheme is publicly funded. Whereas the victim’s own ‘non-ideal’ behaviour may have some relevance in a civil action, the distinction between ideal (‘deserving’) and non-ideal (‘undeserving’) victims continues to be central to its political legitimacy. When setting its underlying policy in the first Scheme in 1964, the government considered that it would be inappropriate for those with significant criminal records, whose own conduct before, during, or after the incident led to their being injured, or 28 A person whose conviction has been quashed by the Court of Appeal as being ‘unsafe’ is, nevertheless, not necessarily an ideal victim for the purpose of state compensation, since that decision does not of itself contain any finding as to whether that person was in fact innocent of the crime. The government’s concern that public money should be sparingly used where there has been a miscarriage of justice led to further restriction in its statutory formulation. Since 2014, it has been the case that compensation may be paid only where the Secretary of State determines that the Court of Appeal quashed the conviction in circumstances where fresh evidence shows beyond reasonable doubt that the person did not commit the offence. In Hallam, and Nealon v Secretary of State for Justice [2019] UKSC 2, the Supreme Court found that ‘the words “did not commit the offence” can be read as synonymous in this context with the words “is innocent”. It also held that the imposition of the criminal standard of proof as a condition to the possible award of compensation was not incompatible with Article 6 of the European Convention on Human Rights (presumption of innocence). 29 The total number of persons ordered in the 12 months ending June 2018 in all courts to pay compensation as the principal disposal on conviction of an offence was 4,975, of which 103 were for offences of violence against the person and 13 were for sexual offences (these numbers have declined over the past 10 years (11,058, 415 and 15 in 2008); the vast majority of orders are made for offences against property; Ministry of Justice, Overview Tables (January 2019), Tables Q5.1a and Q5.3; https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-june-2018?utm_source=28904e4e- dcb3-4296-a2df-6a25e72fa679&utm_medium=email&utm_campaign=govuk-notifications&utm_content=weekly. 30 See Criminal Injuries Compensation Authority: Annual Report and Accounts 2017–2018 (House of Commons Paper 1337, July 2018). https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-june-2018?utm_source=28904e4e-dcb3-4296-a2df-6a25e72fa679&utm_medium=email&utm_campaign=govuk-notifications&utm_content=weekly https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-june-2018?utm_source=28904e4e-dcb3-4296-a2df-6a25e72fa679&utm_medium=email&utm_campaign=govuk-notifications&utm_content=weekly Societies 2019, 9, 29 8 of 13 who were otherwise of bad character, to receive compensation from public funds. The problem with ‘victims’ who have these kinds of personal histories is that they either resemble too closely, or were once themselves, offenders. These considerations continue to inform government policy, the structure, and the implementation of CICS 2012. It follows that not all victims succeed in their claims. Around 50% of the rejected claims fail because there was no crime of violence or the injury was valued at less than the £1000 minimum. The other 50% were rejected because they were not ‘ideal’ victims. In short, to be successful in an application to the CICA, the ideal victim is a (good) citizen who reported their injury to the police as soon as was reasonably practicable, co-operated with the criminal justice agencies in bringing their offender to justice and co-operated with the CICA,31 has no unspent convictions, did not contribute to their injuries, is of good character, and if applying for loss of earnings or special expenses (or in fatal cases, dependency) has a good work record. The following section deals more closely with three of these eligibility conditions. 3.1. The Victim’s Own Delinquent Behaviour Paragraph 25 of CICS 2012 provides that: ‘An award may be withheld or reduced where the conduct of the applicant before, during or after the incident giving rise to the criminal injury makes it inappropriate to make an award or a full award.’ CICA’s online Guide to the Scheme advises that ‘before making a payment we have to consider if your behaviour before, during or after the incident caused or contributed to the incident in which you were injured.’ It continues, ‘we will consider if you were acting in an aggressive or threatening way and provoked the incident in which you were injured; you intended to provoke an assault or fight; there was a history of violence between you and the assailant; or you were injured as a result of challenging someone over a previous incident.’32 CICA has always taken a strict view of the application of paragraph 25 and its predecessors. Where the applicant challenged or voluntarily agreed to fight their assailant but emerged the loser, their claim is likely to be wholly refused, even where the applicant was seriously injured. While their assailant’s retaliation may well be the direct result of the applicant’s own aggressive conduct, it would be wrong to conclude that paragraph 25 applies only when there is a causal link between the victim’s conduct and the criminal injury. There may, as the Guide indicates, be such a link, but the Guide is only advisory; it is not the law. As paragraph 25 makes clear, what is required is a temporal link: that the victim’s conduct occurs ‘before, during or after’ the incident. What is at issue for the scheme is not, as would be the case in a civil action against the assailant, whether it is ‘just and equitable’ to apportion financial responsibility as between the taxpayer and an applicant who caused or contributed in some way to the incident, but whether the applicant is a person whose moral worth, assessed according to strictly defined criteria, is such that their ensuing injuries should be compensated from public funds. As the judge hearing a claim that raised exactly this issue observed, ‘paragraph 25 does ‘not allow any general balancing out of the nature of a claimant’s conduct against the seriousness of the injury and other consequences’.33 Instead, given that the scheme is publicly funded, the determining question is whether it would be ‘inappropriate’ to make any award. These points are well illustrated by a comparison of the ways in which a civil court and the CICA deal with claims by offenders in respect of the injuries they receive at the hands of a householder defending their property. In Revill v Newberry, the plaintiff was a young man who had been seriously injured when shot in the chest by the householder from whose allotment shed he intended to steal some equipment. Because there had been similar incidents, the householder was lying in wait inside the shed; as he heard someone trying to break in, he discharged his shotgun through a small hole in the 31 ‘We propose that eligibility to claim from the Scheme should be tightly drawn so as to restrict awards to blameless victims of crime who fully co-operate with the criminal justice process’ [16] (p. 50). 32 https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide. 33 R (SB) v First-tier Tribunal [2010] UKUT 250 (AAC), [2011] AACR 11 [27]–[31]. https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide Societies 2019, 9, 29 9 of 13 door, injuring the plaintiff. In the subsequent civil action, the Court of Appeal agreed with the judge’s two-thirds reduction for the young burglar’s contributory negligence.34 By comparison, on similar facts, CICA’s then appeal body found that it would be ‘inappropriate’ that someone who was injured in the course of burgling someone’s home, and who struggled to escape and was injured when detained, should receive an award from public funds, agreeing that the claim should be entirely rejected.35 As Farmer observed of the Tony Martin case, one consequence of the contested and fluid nature of the label ‘victim’ was that the burglar whom Martin had shot in the legs while he was seeking to escape reinvented himself as a ‘victim’ of Martin’s unlawful use of force, and when he sought to sue him for his injuries, in turn relabelling the householder ‘victim’ an ‘offender’ [21] (p. 59).36 3.2. The Victim’s Criminal Record The administrative body responsible for the implementation of the pre-statutory (1964) scheme would refuse or reduce an award where the applicant had convictions that it regarded as being qualitatively or quantitatively ‘serious’, whether they were, or were not, causally related to the incident in which they were injured. This interpretation, which could include a ‘spent’ conviction under the Rehabilitation of Offenders Act 1974, was at that time approved by the Court of Appeal.37 This specific possibility was omitted in the 1996 statutory scheme, which provided instead that the CICA ‘must refuse or reduce an award to reflect unspent criminal convictions’ unless there were ‘exceptional reasons not to do so’. In order to assist in answering the question whether an award was to be refused or reduced, CICA introduced a system of ‘penalty-points’. In essence, the more severe the sentence and the shorter the period of time between the date on which it was ordered, and the date on which CICA received the application, the greater the number of penalty points, and thus the greater the likelihood of the claim being refused or rejected. Conversely, the less severe the sentence and the longer the period of that time the fewer the resulting penalty points; an outcome that sought to give the applicant credit for going straight. This approach, however, did not satisfy the government’s stated objective that taxpayer ‘cash compensation should be focused on blameless victims of the most serious crimes’ [16] (p. 3). ‘The Scheme is a taxpayer-funded expression of public sympathy and it is reasonable that there should be strict criteria around who is deemed “blameless” for the purpose of determining who should receive a share of its limited funds. We consider that, in principle, awards should only be made to those who have themselves obeyed the law and not cost society money through their offending behaviour’ [16] (para 207). Accordingly, CICS 2012 introduced stricter criteria for determining when an award would be appropriate in these cases. By paragraph 26 and Annex D paragraph 3, no award will be made where an unspent conviction resulted, broadly speaking, in either a custodial sentence or a community order. Refusal of an award in these cases is mandatory. This applies to any unspent convictions the applicant has at the time of applying or that they receive before their claim is settled. The lawfulness of this exclusionary rule was challenged on a number of grounds that primarily engaged provisions of the European Convention on Human Rights (ECHR). It is a complex case whose issues cannot be detailed here [42] (pp. 129–133), but the conclusions of the High Court and of the Court of Appeal were that however those issues were answered, the rule was not unlawful: ‘There is plainly a legitimate aim in limiting eligibility for compensation to those who are morally deserving of it, namely, “blameless 34 [1996] QB 567 (CA). 35 Criminal Injuries Compensation Appeals Panel, Annual Report and Accounts for the year ended 31 March 1997 (Cm 3840, February 1998). 36 Following this case, the law governing the use of force in self-defence was amended so that in a ‘householder’ case, the degree of force used by the ‘victim’ may be regarded as having been reasonable in the circumstances as the householder believed them to be, unless it was grossly disproportionate in those circumstances; see Collins [2016] EWHC 33 (Admin), and Cheeseman [2019] EWCA Crim 149 (CA). 37 R v Criminal Injuries Compensation Board, ex parte Thompstone and Crowe [1984] 1 WLR 1234 (CA). Societies 2019, 9, 29 10 of 13 victims of crimes of violence”.’38 As a proportion of all resolved claims, the number rejected under paragraphs 22–28 is lower than was the case before the commencement of CICS 2012, but the underlying policy remains central to its purpose. 3.3. The Victim’s Bad Character A victim’s bad character is primarily evidenced by their unspent convictions, but earlier versions of CICS 2012 enabled CICA ‘to take account of ‘other evidence available’ when determining whether to reject or reduce an award. This evidence could relate to police reports but on which the CPS had decided not to prosecute,39 or to a police caution given to the applicant. This power is now set out in paragraph 27, which provides that an award may be withheld or reduced because the applicant’s ‘character’ makes it inappropriate to make an award or a full award.40 CICA’s Guide lists the kind of character evidence that can fall within this provision. It includes any association in illegal drugs or crime, tax evasion, benefit fraud, and, as previously, police cautions, but there does not have to be evidence of a crime; an applicant who has been made the subject of an Injunction to Prevent Nuisance and Annoyance in civil proceedings,41 or a football banning order made on application to a magistrates’ court,42 may be caught by this paragraph. Nor does the relevant aspect of the applicant’s character need to have any connection with the incident in which they were injured. The application by a foreign national who had lied about having leave to remain in the UK was refused on the ground of her unlawful status. The court held that the earlier scheme ‘did not place any limitations on the type of conduct which might justify the conclusion that an applicant’s character renders an award of compensation inappropriate’.43 This general point, which could in an application on facts such as those in that case engage the discrimination provisions of the ECHR, has not been tested under CICS 2012. 4. Conclusions: Non-Ideal Victims Negligent, reckless, or intentional injuries caused by an offender against another person are, aside from any criminal liability,44 theoretically remediable in an action for damages. Other injuries, such as those that are caused by road traffic accidents, industrial processes, or contaminated vaccines, may or may not be remediable in this way. The state’s response may be to place the burden of insuring against such injuries on those who engage in the relevant activity, as in the case of compulsory motor insurance, itself to directly assume the burden of providing financial support that may in part have been funded by those receiving that support, as in the case of national insurance contributions, or to create specific ex gratia taxpayer-funded compensation schemes, as in the case of vaccine damage and the variant Creutzfeldt-Jakob disease scheme. 38 R (McNiece) v (1) Criminal Injuries Compensation Authority (2) The Lord Chancellor and Secretary of State for Justice and R (1) A (2) B v (1) Criminal Injuries Compensation Authority (2) The Lord Chancellor and Secretary of State for Justice, [2017] EWHC 2 (Admin); A and B v Criminal Injuries Compensation Authority and Secretary of State for Justice [2018] EWCA Civ 1534 (CA). Unspent convictions carrying sentences not specified in paragraph 3 will result in refusal or rejection of the claim, unless there are exceptional reasons not to do so. 39 CPS has to apply its two-stage ‘full code test’, namely, there is sufficient evidence to provide a realistic prospect of conviction, and whether it is in the public interest to prosecute; https://www.cps.gov.uk/publication/code-crown-prosecutors#section4. A conviction would require proof beyond reasonable doubt; but the standard of proof in CICS 2012 is the balance of probabilities. 40 This does not apply to the separate provisions relating to unspent convictions. 41 IPNA; these replaced Anti-Social Behaviour Orders (ASBOs; Anti-Social Behaviour, Crime and Policing Act 2014, Part 1). 42 Football Spectators Act 1989 ss 14A and 14B. Under section 14B(2), it is necessary to show only that the person ‘has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere’ but does not depend on a conviction, as does section 14A. 43 Andronati v Criminal Injuries Compensation Appeals Panel [2006] EWHC 1420 (Admin) [9]. 44 Negligence alone is generally insufficient for an offence against the person, but gross negligence may be sufficient basis for a conviction of manslaughter where the victim dies. https://www.cps.gov.uk/publication/code-crown-prosecutors#section4 Societies 2019, 9, 29 11 of 13 These instances by no means fully recognise these many alternative compensation systems,45 of which CICS 2012 is one such alternative. It does not substitute for a known offender against whom a remedy is possible, either via a civil action, or a compensation order on conviction. In both cases, any sums recovered are fully deductible from any CICA award; there is no double recovery at the taxpayer’s expense. However, as such sums are likely to fall short of what could be recovered from an insured defendant, or one with sufficient means, CICS 2012 stands as an additional source of compensation, and where, as is frequently the case, the offender is unknown or not brought to trial, it is the only source; a remedy of last resort. All taxpayer-funded schemes whose purpose is, as in the case of the instances above, to provide financial redress for injuries that public policy dictates should not fall unmitigated upon the individual, by definition specify those eligibility criteria with which the injured person must comply. These criteria may be characterised as a ‘payment trigger’ whose primary function is ‘to select worthy claimants from the less deserving and to make payments only to the former’ [44] (p. 640). In the case of CICS 2012, this measure of desert is implicitly achieved by drawing a line between ideal and non-ideal victims of violent and sexual crime, and explicitly so in the case of the various disentitling provisions discussed above. Unless they are applicants whose claims have been refused or any award reduced, there is probably very little wider societal awareness of the state’s restrictions on non-ideal victims’ access to this particular source of public funds. The point being made in this article is that CICS 2012 is an exemplar of the legal implications of an unsympathetic construction of an applicant’s possible social status as a victim of a violent or sexual crime. This construction in turn illustrates one consequence of the contested cultural representations that continue to shape perceptions of victims of crime [45]. It also, secondly, illustrates the inevitable legal difficulties that attend political and criminal justice discourse and practice, which are, similarly, a consequence of that contest. Funding: This research received no external funding. Conflicts of Interest: The authors declare no conflict of interest. References 1. Rock, P. On Becoming a Victim. In New Visions of Crime Victims; Hoyle, C., Wilson, R., Eds.; Hart Publishing: Oxford, UK, 2002; pp. 1–22, ISBN 1-84113-280-2. 2. Walklate, S.; Mawby, R. Critical Victimology; Sage Publications: London, UK, 1994; pp. 69–94, ISBN 0-8039-8512-6. 3. Doak, J. Victims’ Rights, Human Rights and Criminal Justice; Hart Publishing: Oxford, UK, 2008; ISBN 978-1-84113-603-5. 4. Kearon, T.; Godfrey, B. Setting the Scene: A Question of History. In Handbook of Victims and Victimology; Walklate, S., Ed.; Willan Publishing: Devon, UK, 2007; ISBN 978-1-84392-257-5. 5. Sebba, L. Third Parties: Victims and the Criminal Justice System; Ohio State University Press: Columbus, OH, USA, 1996; ISBN 0-8142-0664-6. 6. Shapland, J.; Hall, M. Victims at Court: Necessary Accessories or Principal Players at Centre Stage. In Hearing the Victim; Bottoms, A., Roberts, J., Eds.; Willan Publishing: Devon, UK, 2010; pp. 163–198, ISBN 978-1-84392-272-8. 7. Kirchengast, T. The Victim in Criminal Law and Justice; Palgrave Macmillan: New York, NY, USA, 2006; ISBN 978-1-4039-86 10-8. 8. Radzinowicz, L. A History of English Criminal Law; Stevens and Sons: London, UK, 1956; Volume 2. 9. Armstrong, A.; McAra, L. Audiences, Borders, Architecture: The Contours of Control. In Perspectives on Punishment; Armstrong, A., McAra, L., Eds.; Oxford University Press: Oxford, UK, 2006; ISBN 0-19-927877-6. 45 See [43], (pp. 99–121), [43]. Societies 2019, 9, 29 12 of 13 10. Home Office. Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority; Produced by COI on behalf of the Home Office, July 2006. Ref: 275921; Home Office: London, UK, 2006. 11. O’Mahoney, D.; Doak, J. Reimagining Restorative Justice; Hart Publishing: Oxford, UK, 2017; ISBN 978-1-84946-056-9. 12. Sanders, A. Victim Participation in an Exclusionary Criminal Justice System. In New Visions of Crime Victims; Hoyle, C., Wilson, R., Eds.; Hart Publishing: Oxford, UK, 2002; pp. 197–222, ISBN 1-84113-280-2. 13. Attorney General’s Office. Rebuilding Lives: Supporting Victims of Crime; Cm 6705; The Stationery Office: London, UK, 2005; ISBN 0101670524. 14. Tonry, M. Rebalancing the Criminal Justice System in Favour of the Victim: The Costly Consequences of Populist Rhetoric. In Hearing the Victim; Bottoms, A., Roberts, J., Eds.; Willan Publishing: Devon, UK, 2010; pp. 72–103, ISBN 978-1-84392-272-8. 15. McEwan, J. From Adversarialism to Managerialism: Criminal Justice in Transition. Leg. Stud. 2011, 31, 519–546. [CrossRef] 16. Ministry of Justice. Getting it Right for Victims and Witnesses; Cm 8288; The Stationery Office: London, UK, 2012; ISBN 9780101828826. 17. Spalek, B. Crime Victims: Theory, Policy and Practice; Palgrave Macmillan: Basingstoke, UK, 2006; ISBN-10: 1-4039-3542-4. 18. Ministry of Justice. Code of Practice for Victims of Crime; updated to October 2018; The Stationery Office: London, UK, 2015; ISBN 9781474125390. 19. Matravers, M. The Victim, the State, and Civil Society. In Hearing the Victim; Bottoms, A., Roberts, J., Eds.; Willan Publishing: Devon, UK, 2010; pp. 1–16, ISBN 978-1-84392-272-8. 20. Loader, I. In Search of Civic Policing: Recasting The ‘Peelian’ Principles. Crim. Law Philos. 2016, 10, 427–440. [CrossRef] 21. Dean, H. Welfare Rights and Social Policy; Routledge: Abingdon, UK, 2002; ISBN 978-1-317904-731. 22. Dwyer, P. Welfare Rights And Responsibilities: Contesting Social Citizenship; The Policy Press: Bristol, UK, 2000; ISBN 978-1-86134-204-1. 23. Farmer, L. Tony Martin and the Nightbreakers: Criminal Law, Victims, and the Power to Punish. In Perspectives on Punishment; Armstrong, S., McAra, L., Eds.; Oxford University Press: Oxford, UK, 2006; ISBN 0-19-927877-6. 24. Miers, D. The Responsibilities and the Rights of Victims of Crime. Mod. Law Rev. 1992, 55, 482–505. [CrossRef] 25. Hall, M. Victims of Crime: Policy and Practice in Criminal Justice; Willan Publishing: Devon, UK, 2009; ISBN 978-1-84392-381-7. 26. Hoyano, L. Cross-Examination of Sexual Assault Complainants on Previous Sexual Behaviour: Views from the Barristers’ Row. Crim. Law Rev. 2019, 77–114. 27. Attorney General’s Office. Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System; Cm 9735; The Stationary Office: London, UK, 2018; ISBN 978-1-5286-0873-2. 28. Roberts, J.; Erez, E. Communication at sentencing: The expressive function of Victim Impact Statements. In Hearing the Victim; Bottoms, A., Roberts, J., Eds.; Willan Publishing: Devon, UK, 2010; pp. 232–249, ISBN 978-1-84392-272-8. 29. HM Government. Victims Strategy; Cm 9700; The Stationery Office: London, UK, 2018; ISBN 978-1-5286-0780-3. 30. Condry, R. The Parent as Paradoxical Victim. In Reconceptualizing Critical Victimology; Spencer, D., Walklate, S., Eds.; Lexington Books: Lanham, MD, USA, 2016; pp. 45–61, ISBN 978149851064. 31. Miers, D. Positivist Victimology: A Critique. Int. Rev. Vict. 1989, 1, 219–230. [CrossRef] 32. Winter, J. Notions of Victimhood in the Trial of Rose West. In New Visions of Crime Victims; Hoyle, C., Wilson, R., Eds.; Hart Publishing: Oxford, UK, 2002; pp. 173–196, ISBN 1-84113-280-2. 33. Christie, N. The Ideal Victim. In From Crime Policy to Victim Policy; Fattah, E., Ed.; Palgrave Macmillan: London, UK, 1986; pp. 17–30, ISBN 0-333-39994-3. 34. Hall, M. Victims and Policy Making: A Comparative Perspective; Willan Publishing: Devon, UK, 2010; ISBN 978-1-84392-381-7. 35. Duggan, M. (Ed.) Revisiting the ‘Ideal Victim’; Policy Press: Bristol, UK, 2018; ISBN 978-1-4473-3876-5. 36. McEvoy, K.; McConnachie, K. Victimhood and Transitional Justice. In Reconceptualizing Critical Victimology; Spencer, D., Walklate, S., Eds.; Lexington Books: Lanham, MD, USA, 2016; pp. 111–132, ISBN 978149851064. http://dx.doi.org/10.1111/j.1748-121X.2011.00201.x http://dx.doi.org/10.1007/s11572-014-9318-1 http://dx.doi.org/10.1111/j.1468-2230.1992.tb00927.x http://dx.doi.org/10.1177/026975809000100301 Societies 2019, 9, 29 13 of 13 37. Hamill, H. Victims of Paramilitary Punishment Beatings in Belfast. In New Visions of Crime Victims; Hoyle, C., Wilson, R., Eds.; Hart Publishing: Oxford, UK, 2002; pp. 49–69, ISBN 1-84113-280-2. 38. Miers, D. Taking the Law into Their Own Hands: Victims as Offenders. In Integrating a Victim Perspective within Criminal Justice; Crawford, A., Goodey, J., Eds.; Ashgate: Dartmouth, NH, USA, 2000; pp. 77–96, ISBN 1-84014-486-6. 39. Chakraborti, N. Victims of Hate. In Reconceptualizing Critical Victimology; Spencer, D., Walklate, S., Eds.; Lexington Books: Lanham, MD, USA, 2016; pp. 63–77, ISBN 978149851064. 40. Mason-Bish, H. Creating ideal victims in hate crime policy. In Revisiting the ‘Ideal Victim’; Duggan, M., Ed.; Policy Press: Bristol, UK, 2018; pp. 43–61, ISBN 978-1-4473-3876-5. 41. Green, D. We’re (Nearly) All Victims Now! How Political Correctness Is Undermining Our Liberal Culture; Civitas, Institute for the Study of Civil Society: London, UK, 2006; ISBN 9781903386538. 42. Miers, D. Criminal Injuries Compensation: State and Offender Compensation for Violent Crime; Oxford University Press: Oxford, UK, 2018; ISBN 978-0-19-880662-2. 43. Deakin, S.; Johnston, A.; Markesinis, B. Markesinis and Deakin’s Tort Law; Oxford University Press: Oxford, UK, 2013; ISBN 978-0-959198-5. 44. Macleod, S.; Hodges, C. Redress Schemes for Personal Injuries; Hart Publishing: Oxford, UK, 2017; ISBN 9781509916610. 45. Walklate, S. Victims: Needs Rights and Justice. In Routledge International Handbook of Criminology and Human Rights; Weber, L., Fishwick, E., Marmo, M., Eds.; Routledge: New York, NY, USA, 2017; pp. 71–79, ISBN 1-138-93117-6. © 2019 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Victims and the Criminal Justice System The Social Construction of Victims of Crime The Criminal Injuries Compensation Scheme and the Ideal Victim The Victim’s Own Delinquent Behaviour The Victim’s Criminal Record The Victim’s Bad Character Conclusions: Non-Ideal Victims References 
work_4rpgbq7jvve4nguwoisfwjtknm	----	3. Posada y González REV I S TA D E ECO N O M Í A I N S T I T U C I O NA L , Nº 2, PRI M ER SEM ES T R E/2000 EL GASTO EN DEFENSA, JUSTICIA Y SEGURIDAD* Carlos Esteban Posada P.** Francisco González*** 1. INTRODUCCIÓN E s común afirmar que Colombia sobresale en el campointernacional por sus altas tasas de delincuencia, esto es, por el número de asesinatos, secuestros, hurtos, actos de terrorismo, etc., con respecto al tamaño de la población1. En realidad esta tasa no sólo fue bastante alta en los años 70 sino que ascendió rápidamente en la primera mitad de los años 80 (gráfico 1.1). Los delitos contra la vida (homicidios intencionales, etc.) y la libertad individual (secuestros, etc.), cuyas tasas no fueron espe- cialmente altas en los años sesenta y setenta, empezaron a crecer rápidamente desde mediados o fines de los años setenta. En 1991 la tasa de homicidios llegó a su nivel máximo: 92.6 personas por cada 100.000 habitantes (gráfico 1.2); de éstos sólo 14% corresponden a accidentes de tránsito. Posteriormente esta tasa ha declinado muy lentamente. * Las opiniones contenidas en este documento sólo comprometen a sus autores y no al Banco de la República ni a su Junta Directiva, ni al Departamento Nacional de Planeación, ni a la Universidad Externado de Colombia. Una versión anterior recibió valiosos comentarios de Luis Eduardo Arango, Daniel Mejía, Adriana Pontón, Oscar Martínez y (General) Gabriel Pontón. Los autores agra- decen al Banco de la República, al DNP y a la Universidad Externado de Colombia su apoyo para la realización de este trabajo. ** Investigador de la Subgerencia de Estudios Económicos del Banco de la República. *** Jefe de la División de Proyecciones y Mediciones de la Unidad de Análisis Macroeconómico del Departamento Nacional de Planeación y Profesor de la Facultad de Economía de la Universidad Externado de Colombia. 1. Además de los delitos contra la vida e integridad personal y contra el patri- monio se encuentran otros delitos oficialmente c lasificados así: “libertad y pudor sexual”, “libertad individual” (secuestro, etc.), “administración pública”, “admi- nistración de justicia”, “seguridad pública”, “el orden económico y social”, “la fe pública” y “otros títulos”. Carlos Esteban Posada - Francisco González54 En delitos de homicidio Colombia tiene un desempeño sobresaliente. Así, en una muestra de 48 países desarrollados y en desarrollo no africanos Colombia figuró como el país con la máxima tasa de homicidios intencionales, 77.5 anuales por cada 100.000 habitantes, en promedio, durante el cuatrienio 1986-89, seguido por Brasil, con una tasa de 24.6 homicidios anuales por 100.000 habitantes en un período casi igual2-3. Gráfico 1.1: Gráfico 1.2: 2. Gaitán (1995); véase también Montenegro y Posada (1995) y Montenegro et al. (2000). Las cifras sobre delitos se encuentran en DANE (1995) y DANE y Ministerio de Justicia (1996), así como las cifras de homicidios según Policía Nacional; las cifras de homicidios cuya fuente original es el Instituto de Medicina Legal fueron obtenidas de una base de datos del DNP. 3. Pero en años recientes algunos países centroamericanos han registrado tasas de homicidios intencionales mayores. Por ejemplo, El Salvador tiene una de 120 EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 55 Casi simultáneamente con el aumento del crimen en general y de los asesinatos y secuestros (tanto los de origen común como los ejer- cidos por las organizaciones guerrilleras y paramilitares) la proporción entre el gasto público en defensa, justicia y seguridad (DJS) y el producto interno bruto creció, y lo hizo hasta 1997 (gráfico 1.3)4. Aunque es natural pensar que el aumento de tal gasto ha sido una respuesta de la sociedad ante el avance de la criminalidad, caben dos preguntas al respecto. La primera se refiere a la racionalidad del aumento del gasto DJS, en vista de que éste tiene, como todo gasto, un costo de oportunidad. En términos más concretos lo que se quiere decir es que no es obvio que todo aumento de la criminalidad induzca un incremento en el nivel óptimo de gasto DJS, y en cualquier magnitud, así que valdría la pena establecer las condiciones bajo las cuales son óptimos ciertos niveles y aumentos del gasto. Gráfico 1.3: La otra pregunta es esta: ¿cuáles son las condiciones de existencia de una sustitución o, por el contrario, una complementariedad en el margen entre las variaciones del gasto óptimo y los cambios en su grado de eficiencia? En lo que sigue se intentará responder las preguntas anteriores de una forma abstracta y simplificada. La última sección contiene un resumen sin detalles formales y unas conclusiones. En vista de que homicidios por 100.000 habitantes (Business Week, L. A. edition, mayo 8/2000, p. 4). 4. Las cifras de gasto son de ejecución presupuestal (diferentes a las de caja) e incluyen gastos en cabeza del Ministerio de Justicia, Fiscalía, Rama Judicial, Policía, Defensa Nacional; fuente: Contraloría Gener al de la Repúblic a (información tomada de base de datos del Banco de la Repúblic a). Carlos Esteban Posada - Francisco González56 las secciones analíticas utilizan algunas expresiones matemáticas hemos tratado que el lector puede recibir los mensajes centrales de este documento aun si sólo lee esta introducción, las secciones penúltima (“Datos e interpretaciones”) y última (“Resumen y conclu- siones”), y observa los gráficos. Antes de terminar esta introducción son necesarias dos aclara- ciones adicionales. En las secciones teóricas nos ocuparemos de dos de los principales componentes de la criminalidad: la pérdida de riqueza que sufren los ofendidos (asociada a diferentes modalidades de fraude, hurto, atraco, extorsión y secuestro, etc.) y los homicidios intencionales (diferentes a los derivados de accidentes de tránsito). El modelo hace abstracción de otro tipo de delitos. En general, la violencia política y la criminalidad son dos cosas distintas. La primera siempre es colectiva, ataca un orden social y sus promotores pretenden ofrecer, a la postre, un bien público; la segunda se puede definir por la carencia de los atributos anteriores5. Con todo, en Colombia, y al menos desde principios de los años 80, la línea divisoria es bastante tenue y fluctuante (dado el modus operandi de nuestros subversivos), y, además, las acciones guerrilleras han contribuido a congestionar la labor de la policía y la justicia y a generar, entonces, “externalidades positivas” a la industria del delito común6. Por tanto, en este trabajo no se consideró pertinente realizar la separación de conceptos y estadísticas entre delitos “políticos” y “comunes”, y, en consecuencia, utilizamos un modelo en el cual los gastos en defensa, justicia y seguridad se agrupan en uno solo ya que los objetivos de tal gasto, aunque distintos en principio, convergen en la práctica colombiana un uno solo: tratar de proteger a la sociedad civil de los atentados contra la vida, la libertad individual y el patrimonio. Esto significa que estamos considerando el gasto en defensa externa y el peligro de agresión por otros países como elementos constantes y, por ende, carentes de importancia para el análisis en el margen. 2. EL PROBLEMA DEL AGENTE REPRESENTATIVO Y LAS PÉRDIDAS MATERIALES De acuerdo con los propósitos enunciados previamente lo que se expondrá a continuación no es un modelo de crimen sino un modelo 5. Gupta (1990; pp. 4-5). 6. Una descripción de esto se encuentra en Rubio (1999), Gaviria (2000) y Montenegro et al. (2000). EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 57 de las consecuencias del crimen sobre el gasto óptimo en DJS. El modelo es una adaptación de uno bastante conocido y utilizado por los economistas: el modelo de un agente racional (optimizador), representativo de la “sociedad civil” o de los constituyentes primarios7. Como es lo usual, se supone que este agente tiene un horizonte infinito de planeación (o, de manera equivalente, se preocupa por el futuro de sus hijos, y éstos de sus hijos, y así sucesivamente). En el caso específico de las consecuencias del crimen, supondremos que el agente representativo no pierde capacidad de razonamiento ni de decisión por las acciones criminales ni toma en cuenta las preferencias u objetivos del criminal; simplemente percibe de manera lúcida el efecto de las acciones criminales, así que no es un modelo de interacciones estratégicas. En una sección posterior se justificará este supuesto. El agente representativo logra hacer previsiones acertadas, así que las pérdidas por acciones criminales no llegan a extremos de inducir la irracionalidad en los procesos de formación de expectativas o de capital, ni crear comportamientos explosivos de la productividad marginal del capital u otras variables pertinentes8. El modelo es de economía cerrada y supone que se produce un solo bien que puede ser utilizado para el consumo corriente, para la protección o para la inversión. La parte del bien no consumida ni utilizada para protección, es decir, el ahorro, se destina a acrecentar la capacidad productiva. La riqueza material de la sociedad es, para simplificar las cosas, su capital productivo y supondremos, también para simplificar, que no se desgasta por su uso normal ni se hace obsoleto por el cambio técnico; sólo sufre deterioro por acciones criminales. Se puede considerar, entonces, que el gasto DJS reduce la pérdida asociada a los fenómenos de criminalidad. Lo afirmado en el último párrafo, relativo a las consecuencias de las acciones criminales y al efecto reparador (y preventivo) del gasto DJS, se expresa formalmente así: 7. Para nuestros propósitos debemos excluir de los conceptos de “sociedad civil” o de “constituyentes primarios” a los delincuentes. 8. Esto supone, además, que: a) los criminales (efectivos y potenciales) no tienen capacidad de influir de manera decisiva sobre el gasto público en defensa, justicia y seguridad, o b) que la riqueza apropiada por los criminales no llegará, en ningún caso, a ser de un nivel tan grande que lleve a que éstos puedan influir en las decisiones sobre tal gasto. Carlos Esteban Posada - Francisco González58 Por ende: Siendo: k t : capital (su valor real) al comienzo del período “t”; I t : inversión bruta en capital o inversión antes de descontar las pérdidas por destrucción criminal; δ t : valor real destruido por unidad de capital; δ 0 : valor real que se destruiría en ausencia del gasto DJS (o componente autónomo o exógeno de la destrucción criminal); S t : gasto DJS real; γ : índice de eficiencia del gasto DJS por unidad de capital; γ 0 : componente autónomo del índice de eficiencia; γ 1 δ 0 : componente del índice de eficiencia inducido por la destrucción criminal. Este componente podrá ser positivo (cuando la criminalidad produce una reacción que eleva la eficiencia: γ 1 > 0) o negativo (caso en el cual la destrucción criminal tiende a generar menor eficiencia del gasto DJS: γ 1 < 0). Más adelante veremos cuál es la consecuencia de hacer una conjetura razonable: que la destrucción criminal induce menor eficiencia (γ 1 < 0). Así, la formulación de la destrucción total, δ t k t , y de la eficiencia total del gasto DJS, γ, reconoce que esta última puede depender parcialmente de la violencia: a mayor criminalidad mayor sería la depreciación bruta, δ 0 , o depreciación sin incluir el efecto disuasivo, preventivo y reparador del gasto DJS; y de la destrucción criminal podría incidir parcialmente y de manera positiva o negativa en la eficiencia del gasto DJS. Además, la utilidad del agente representativo depende del consumo y de la tranquilidad que le reporta un cierto gasto en seguridad y justicia. El problema del agente representativo es hacer máximo el valor presente de la serie de sus utilidades periódicas (U): EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 59 Sujeto a: Siendo β el factor de descuento e idéntico al inverso de 1 más la tasa de descuento (ρ) de la utilidad futura: β≡1/(1+ρ); u es la utilidad periódica percibida por el agente, que depende positivamente de dos variables: consumo corriente (c) y gasto real DJS (S), así que se supone, por simplicidad, que el nivel real de gasto DJS es, en sí mismo, un indicador de la fuente de utilidad reportada por la tranquilidad que induce, dados unos parámetros de eficiencia (γ 0 , γ 1 ) conocidos por el agente9: σ y ε son dos parámetros, cada uno de ellos igual al inverso de la elasticidad de la utilidad marginal con respecto a cada variable, y χ puede entenderse como un índice de preferencia o importancia relativa asignada a la seguridad en la función de utilidad. De otra parte, se supone que el producto (y) depende del capital, dados un factor de productividad (A) y una elasticidad del producto con respecto al capital (α), y que los gastos DJS se financian plenamente con impuestos de suma fija (T). Además, supondremos que se cumple la llamada “condición de transversalidad”, a saber: el valor presente de los gastos del agente representativo es igual al valor presente de sus ingresos netos de impuestos10. Por tanto, el problema es maximizar el valor presente de las serie de utilidades periódicas: 9. En Sandler y Hartley (1995) o en Davoodi et al. (1999) se encuentran ejemplos de funciones de utilidad con argumentos similares. 10. Como se obser va, la función de utilidad es aditiva y separable en sus dos argumentos y cada utilidad periódica es independiente de las anter iores y posteriores y es aditiva intertemporalmente; estos supuestos se hacen por facilidad analítica pero tienen implicaciones que consideraremos de poca importancia en Carlos Esteban Posada - Francisco González60 Max. U = (1) Las condiciones necesarias de óptimo (“condiciones de primer orden”) son las siguientes11: (2) (3) La ecuación 2 y la condición de transversalidad permiten utilizar la siguiente hipótesis: (4) Siendo W t el valor presente esperado de la riqueza (o valor estimado en “t” de la serie de ingresos netos futuros) y l la “propensión” a consumir la riqueza12. Así, el reemplazo de 4 en 3 permite deducir el gasto DJS óptimo presente: (3a) Dados los parámetros asociados a las preferencias χ, ∈ , δ, y λ, se predice que a mayor riqueza o a mayor eficiencia autónoma del gasto este caso. Además, la función de utilidad periódica debería escribirse, en rigor así: Pero para simplificar la notación aquí se sigue la práctica generalizada de omitir –1 en los numeradores. 11. Condiciones de máximo derivando con respecto a k s (para s > t) y a S s . 12. Una justificación y descripción en términos específicos de esta hipótesis se encuentra en Blanchard y Fischer (1989, cap. 2 y 3). EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 61 en seguridad (γ 0 ) mayor será el nivel óptimo del gasto DJS13. Además, si el parámetro γ 1 es positivo, es decir, si la destrucción criminal genera más eficiencia en el gasto DJS, entonces se predice que a mayor destrucción criminal mayor será el nivel óptimo de este gasto. De manera simétrica, si el parámetro γ 1 es negativo, caso que parece más factible en la realidad y bajo el cual la destrucción criminal genera menor eficiencia del gasto en seguridad14, entonces a mayor destrucción criminal menor será el gasto óptimo15. Finalmente: (5) Según esta última expresión, la relación entre el gasto óptimo DJS y el consumo crecerá pari passu con la riqueza esperada si σ /ε es mayor que 1, y viceversa en el caso contrario. De manera intuitiva la ecuación 5 nos dice, entre otras cosas, lo siguiente: dados los indicadores de eficiencia (γ 0 y γ 1 ) y destrucción autónoma (δ 0 ), el incremento en la riqueza esperada conducirá a elevar la relación entre el gasto óptimo DJS y el consumo si la sociedad le asigna un peso relativamente mayor a la seguridad que al consumo (esto es, si σ > ∈ ) cuando pondera, en el margen, sus fuentes de uti- lidad; de lo contrario, los aumentos de la riqueza mantendrán constante o harán decrecer la relación entre el gasto DJS y el consumo. De una manera natural surge una pregunta básica: ¿qué efectos tiene un aumento del grado autónomo de destrucción criminal, δ 0 ? La respuesta no es sencilla. En primer lugar, si se juzga transitorio este aumento no deberíamos esperar una reducción de la riqueza; en tal caso, el efecto de un aumento de δ 0 sería elevar el gasto en seguridad sólo si el parámetro γ 1 es positivo. En segundo lugar, si el aumento del grado de destrucción se juzga permanente deberíamos esperar una reducción de la riqueza; pero una caída de la riqueza conducirá a elevar la relación entre el gasto DJS y el consumo sólo si σ / ∈ es 13. Con su modelo de criminalidad Ehrlich (1973) genera también un nivel óptimo de gasto en protección que tiene esta implicación. Mejía (2000, con base en Lapan y Sandler 1988) también hace explícita esta implic ación en un modelo de secuestros. 14. En Posada (1994) y Gavir ia (2000) se encuentran justificaciones e ilustraciones de esta hipótesis; Fajnzylber et al. (1998) la aplican a su trabajo empírico. 15. Pero en el modelo de Ehrlich (1973) la tasa de criminalidad siempre tiene un efecto positivo sobre el gasto óptimo en DJS. Carlos Esteban Posada - Francisco González62 mayor que 1 y si γ 1 ≥ 0; de lo contrario (es decir, cuando σ / ∈ es mayor que 1 y cuando γ 1 < 0) el aumento de la intensidad de la destrucción criminal conducirá a reducir el gasto DJS16. Supongamos que σ ≥ ∈ , y que la criminalidad tiene un efecto negativo sobre la eficiencia del gasto DJS: γ 1 < 0. En tal caso un incremento del grado de destrucción ha de conducir a una disminución del gasto DJS; esto, a su vez, conducirá a la reducción de la riqueza de la sociedad. Si ante una creciente oleada de destrucción criminal la sociedad no responde elevando la eficiencia autónoma de su gasto en defensa (elevando γ 0 ) entonces se puede caer en una trampa: a mayor destrucción de capital, menor riqueza esperada, menor eficiencia del gasto DJS y menor nivel del mismo; esto podría, incluso, aunque no está contemplado por el modelo, conducir a nuevos ataques. 3. EL RIESGO DE MUERTE Y LOS HOMICIDIOS La actividad criminal incluye la eliminación de vidas humanas. Reconocer este hecho implica, para los propósitos actuales, revisar el modelo anterior. El primer paso para enfrentar el tema de las consecuencias de los homicidios es adicionar algunos supuestos para incluir este asunto. Si suponemos, para evitar complicaciones innecesarias, que: a) el núcleo básico de la sociedad civil es una familia compuesta por el padre, la madre, una hija y un hijo (un caso de reproducción demo- gráfica simple17), b) que la pareja padre-madre, denominada en lo sucesivo “el agente representativo”, toma decisiones de consumo, gasto DJS y ahorro pensando en sí misma y en sus hijos, y que éstos lo harán así cuando se casen y tengan hijos, y así sucesivamente, y c) que los homicidas no ponen en peligro la estructura ni la reproducción demográfica supuestas, puesto que sólo pueden, con su acto criminal, anticipar el momento de la muerte del padre o de la madre pero no hasta el punto de impedir que previamente hayan procreado, entonces se puede considerar que el modelo anterior, con ligeras modificaciones, puede seguir siendo útil para el análisis18. 16. Esta discusión podría ser más precisa y formal si se considerase alguna ley de evolución en el tiempo de d 0 , como, por ejemplo, suponer que es variable en el tiempo (δ 0t ) y que, o bien sigue un proceso estacionario (en media y varianza), de manera que cualquier choque soportado por d 0 sólo tiene efectos transitorios, o bien suponer que sigue un “paseo aleatorio” de manera que los choques tienen efectos permanentes. Con todo, creemos que los aspectos básicos de la discusión (y en vista de que no haremos estimaciones econométricas) se puede entender bajo la forma actualmente utilizada en el texto principal. 17. Desde David Ricardo ha sido usual tal supuesto par a entender las propiedades de un equilibrio general en estado estacionario. EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 63 El segundo paso es reflexionar sobre el sentido de la ecuación 4. Según esta, el consumo presente depende del valor esperado actual de la riqueza, dada una “propensión a consumir” la riqueza que se denominó λ. Supondremos ahora que el factor λ depende negativa- mente del factor de descuento β19. Es decir, entre más impaciente es el agente (o entre mayor sea la tasa de descuento, o menor β, que aplica a la utilidad futura), mayor es, ceteris paribus, su consumo presente con respecto a su riqueza. Como resultado de lo anterior, se puede suponer que el factor de descuento del agente representativo de vida finita (el agente “υ”) es βυ, menor que el factor β correspondiente al caso del agente repre- sentativo de vida infinita de las secciones previas: En otros términos, la conciencia de la mortalidad (o de la posibilidad de una muerte prematura) genera mayor impaciencia: un descuento mayor de la utilidad futura20. Además, el supuesto de similitud de los agentes en todo lo demás, salvo en su percepción de un mayor o menor riesgo de muerte, permite considerar que el factor agregado de descuento, que llamaremos βa, es un promedio de los factores individuales de descuento, ponderado por la participación de cada agente en la población total21, así que: Dado lo anterior, podemos suponer que el consumo agregado (ca) es el producto de una propensión agregada a consumir la riqueza (λa, υ 18. Nuestra inspiración y referencia básica en lo que sigue es el modelo de Blanchard (1985), que generaliza el modelo del agente representativo de horizonte infinito al caso de vidas finitas; véase también su exposición en Blanchard y Fischer (1989, cap. 3, pp. 115 y ss). La consecuencia práctica de incluir el caso de vidas finitas es modificar y reinterpretar (desde el punto de vista económico) algunos parámetros del modelo de vida infinita; por tanto, se puede mantener la metáfora del horizonte de planeación infinito para la sociedad en su conjunto, sin que formalmente se alteren las condiciones de óptimo ni las de equilibrio de los mercados (Cfr., ibidem). 19. Obstfeld y Rogoff, 1996, cap. 2, pp. 70 y ss, y Blanchard y Fischer, 1989, cap. 3, pp. 119 y ss. 20. Blanchard y Fischer (obra y partes citadas). 21. Alternativamente, podríamos suponer (para evitar complicaciones asociadas a la agregación) que la población incluida en la sociedad civil se compone sólo de la pareja padre-madre y de sus dos hijos, así que sólo habría un agente representativo. Carlos Esteban Posada - Francisco González64 ella misma un promedio ponderado de las propensiones individuales) por el nivel esperado de la riqueza agregada (Wa): Y como habíamos supuesto que la propensión a consumir la riqueza depende inversamente del factor de descuento, entonces la propensión media a consumir la riqueza en una sociedad de mortales (λa) es mayor que la del modelo anterior: De otra parte, parece natural considerar que el parámetro χ, que relaciona de manera positiva el gasto DJS con la utilidad que éste reporta al agente, y el parámetro 1 / ∈ , o elasticidad de la utilidad marginal con respecto al gasto DJS, son mayores en el caso de vidas finitas y sujetas al riesgo de muerte por homicidio que en el de vida infinita. Puesto que la función de utilidad de cada agente debe tener un parámetro similar, entonces: Tales condiciones implican, entre otras cosas, que los parámetros individuales son iguales a los del análisis agregado. Finalmente debe- mos reconsiderar el asunto de la pérdida social asociada a los homi- cidios y su relación con el gasto DJS. La manera más económica de abordar este asunto es suponer que la riqueza social o capital productivo agregado es una combinación de capital material y capital humano22, y que el producto no destinado al consumo ni a la protección se destina a la acumulación de capital físico y humano. Dados sus precios relativos las proporciones de la mezcla de capital físico y humano serán constantes, así que podremos hablar de una magnitud llamada capital o riqueza total agregada, Wa. Podemos suponer que los precios relativos de ambas clases de capital son constantes o, de manera más amplia, que sus eventuales variaciones no tienen efectos que vayan en contravía de las conclusiones derivadas de este análisis. 22. Por ejemplo, una función CES o Cobb-Douglas de ambos elementos. Este es un recurso usual en la literatura moderna de crecimiento económico. EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 65 El caso de vidas finitas (o, si se quiere, de posible muerte prematura) permite, entonces, considerar que la criminalidad se expresa como una destrucción (parcial) no sólo de capital material sino también de capital humano. La destrucción de capital, δka, en el nivel agregado, será formalmente similar a la definida anteriormente: Pero ahora nos referimos a destrucción de capital agregado (físico y humano), en términos de intensidad de actos delincuenciales que eliminan personas además de capital físico, y a una cierta capacidad del gasto DJS, que llamamos γS, para contrarrestar, impedir y disuadir ambas clases de delitos y compensar sus efectos. Teniendo en cuenta lo anterior, se debe reescribir la condición que establece la relación óptima entre los niveles agregados del gastos DJS (S t a) y el consumo así: (5a) Las consideraciones anteriores permiten suponer, como ya se dijo, que la existencia de homicidios, si es un hecho que se juzga permanente, implicará parámetros χa, λa de magnitud mayor y un parámetro ∈ a menor que en otro caso. Por tanto, una sociedad con una tasa de homicidios sustancialmente alta será aquella en la cual es más probable que σ / ∈ a > 1. Si esta condición se cumple y si los parámetros χa o λa también son mayores que en una sociedad con una baja o nula tasa de homicidios, entonces podría predecirse lo siguiente: cuando la tasa de homicidios pasa, de manera permanente, de un nivel bajo a uno alto se desatan dos fuerzas de sentido contrario sobre la relación entre el gasto óptimo DJS y el consumo corriente: una de ellas, asociada a los mayores parámetros χa, λa y al menor parámetro ∈ a eleva dicho gasto; otra fuerza, la caída de la riqueza permanente ocasionada por la mayor criminalidad, lo reduce. Para superar esta incertidumbre vamos a considerar que σ / ∈ a es igual a 1. Así, la condición 5a quedará reducida a: (5b) Carlos Esteban Posada - Francisco González66 Una de las diferencias sustanciales con el caso en el cual sólo hay delitos contra la riqueza física es que ahora deberíamos suponer que cuanto mayor es la tasa de criminalidad permanente (medida por δ 0 ), mayor debería ser el parámetro χa, es decir, mayor debería ser el peso que cada miembro (no criminal) de la sociedad ha de dar a los gastos en seguridad en su función de utilidad: (6) Reemplazando 6 en 5b resulta que: (7) Por tanto, un aumento de la tasa de criminalidad (por una sola vez pero que se juzgue permanentemente) tendrá el siguiente efecto sobre la proporción óptima entre el gasto DJS y el consumo: En el lado derecho de la igualdad todos los términos son positivos, excepto uno, χa(δ 0 )γ 1 , si γ 1 es negativo. Por tanto se puede decir que la respuesta óptima de la sociedad ante un aumento permanente de la criminalidad, aun si tal aumento lleva a que los miembros de ella le otorguen un peso mayor a la seguridad en sus funciones de utilidad, podría ser la reducción, en términos relativos, del gasto DJS si el componente inducido de eficiencia de tal gasto fuese negativo y tuviese un peso relativamente grande. Pero si el componente inducido de eficiencia es relativamente pequeño debemos esperar que la respuesta de la sociedad ante el aumento de la criminalidad sea la elevación del gasto DJS. De otra parte, las ecuaciones 5a y 7 hacen evidente, de nuevo, algo que ya se había mencionado: que todo incremento del componente EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 67 autónomo de eficiencia del gasto DJS (γ 0 ) aumenta la relación entre el gasto DJS y el consumo. 4. SIMPLIFICACIONES Y JUSTIFICACIONES El modelo expuesto tiene, entre varias simplificaciones, cuatro que vale la pena examinar y justificar: 1. La protección la puede ofrecer también, como una mercancía específica, el sector privado. Aunque eso es cierto, y usual en el caso colombiano, habría que anotar que el modelo hace abstracción de los gastos privados menores en protección y disuasión (como los de celaduría y vigilancia, blindaje, etc.), sólo para simplificar el análisis, y considera que los gastos privados mayores (la compra de “para-militarismo”, etc.) hacen parte de la actividad criminal, y que lo que soporta el sector privado no criminal como una pérdida material y humana es el resultado neto de la acción criminal, es decir, neto de bajas eventuales entre diferentes grupos criminales rivales. El supuesto básico detrás de lo anterior es el siguiente: la oferta privada (descentralizada) de protección y disuasión entraña externa- lidades negativas para la sociedad en su conjunto que impiden generar un grado de seguridad que sea una situación de equilibrio estable y equivalente o superior, desde el punto de vista de alcanzar un óptimo de Pareto23, a la del monopolio público de la oferta de protección y disuasión. Esta es una hipótesis central de la teoría clásica del Estado. 2. El modelo no identifica un actor criminal con un sujeto racional con un objeto a maximizar y con restricciones. La defensa frente a esta crítica sería la siguiente: un modelo que suponga que el grueso de la acción criminal la ejerce un oligopolio liderado por un agente racional, con quien el representante de la sociedad civil pudiese entrar en un juego estratégico, generaría, entre sus conclusiones, una que también se deriva del presente modelo: existe un nivel óptimo de gasto DJS que puede aumentar en función de los mayores riesgos de acciones criminales o de la mayor eficiencia de este gasto. Esto es cierto a menos que se suponga que el gasto DJS tiene un efecto perverso: elevar la capacidad y voluntad de agresión del criminal24. Pero si esto no se supone, a mayor capacidad protectora y disuasiva del gasto DJS mayor podría ser la recompensa que derive la sociedad de un eventual “juego estratégico” con el enemigo. 23. Situación en la cual ya no se puede aumentar la utilidad de algún agente sin reducir la de otro. 24. El efecto perverso se podría esperar con criminales dominados por fanatismo ideológico u otros motivos irracionales. Carlos Esteban Posada - Francisco González68 Por tanto, un modelo inmune a esa crítica sólo conduciría a conclusiones similares a las del presentado en estas páginas25. 3. La función de eficiencia del gasto DJS es altamente simplificada (lineal); esto conduce a generar una relación, también lineal, entre el gasto óptimo DJS (como proporción del consumo) y su eficiencia. Sin embargo, la teoría económica sugiere que deberíamos esperar que a partir de ciertos niveles relativamente altos de eficiencia no debería ser óptimo seguir elevando el gasto DJS, a menos que se introdujesen elementos estratégicos como los contemplados en el punto anterior, dados unos crecientes costos de oportunidad de tal acción26. Con todo, creemos (y nos basamos en esta conjetura) que es aceptable la simplificación referida para los rangos de gasto DJS y de criminalidad imperantes en Colombia. 4. La función de utilidad utilizada, aunque es de uso corriente, obliga a suponer que cada avance significativo de la tasa de criminalidad conduce a aumentar la preferencia relativa por seguridad, χ; de lo contrario habría que concluir, gracias a la simplificación de la función de eficiencia del gasto DJS, que cuando avanza la criminalidad se hace óptimo reducir este gasto a menos que γ 1 > 0. Se puede considerar que χ es un índice del costo de oportunidad (por unidad de riqueza esperada) de no tener mayor cobertura contra el riesgo. Así, a mayor riesgo, mayor será el costo de oportunidad de tener sólo el grado de cobertura previo y, por ende, mayor debería ser χ, es decir, mayor la demanda por protección. 5. DATOS E INTERPRETACIONES El gasto real DJS ha estado creciendo al menos desde 1950, y no sólo en términos absolutos sino también con respecto al PIB real, como se observó en la introducción. Tras un ascenso entre 1950 y 1955 (probablemente por la llamada “Violencia”) y otro entre 1958 y 1971 (la época del “Frente Nacional”), se permitió su descenso hasta 1977; posteriormente ha crecido hasta alcanzar un pico en 1997: 4.64% del PIB27. 25. Sin embargo, los modelos económicos del secuestro, un crimen que se relaciona con una expectativa de negociación, requieren identificar al criminal como un actor racional y describir un juego estratégico (Lapan y Sandler 1988, y Mejía 2000). 26. Una de las posibles razones de un creciente costo de oportunidad del gasto DJS podría ser una eficiencia marginal decreciente de éste. 27. Cifras de ejecución presupuestal (diferentes a las de caja) e incluyen gastos en cabeza del Ministerio de Justicia, Fiscalía, Rama Judicial, Policía y Defensa EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 69 Desde mediados o fines de los años 70 el crecimiento del gasto DJS ha sido mayor que el de otros componentes del consumo público y mayor que el del consumo privado, así que su participación en el consumo ha aumentado (gráfico 5.1). Gráfico 5.1: Dentro de este gasto los componentes de mayor crecimiento han sido los destinados a seguridad y justicia. Con respecto a la situación imperante a mediados de los años setenta, el gasto de menor crecimiento ha sido el clasificado en el rubro “Policía” (gráfico 5.2). Gráfico 5.2: Nacional; fuente: Contraloría General de la República. En Granada (1997) se encuentra una historia de los acontecimientos políticos, sociales y de orden público que han acompañado el ascenso del gasto en defensa y seguridad en Colombia entre 1950 y 1994. Clavijo (1998, cap. VII) realiza otra descripción sobre el asunto para el período 1950-98. Giha et al. (1999) analizan la composición interna del gasto militar en Colombia desde 1980. Carlos Esteban Posada - Francisco González70 ¿Cómo explicar, entonces, el aumento del gasto DJS? De acuerdo con el modelo previamente expuesto, el aumento de la tasa de criminalidad tiene efectos ambiguos sobre la relación entre los niveles óptimos del gasto DJS y del consumo. En efecto, dicho aumento desata fuerzas que llevan, unas, a aumentarlas y, otras, a reducirla. Pero bajo algunos supuestos simplificadores, como se hizo evidente en secciones anteriores, el aumento de la criminalidad tiende a elevar tal relación. Y esto es tanto más cierto si, como se ha observado en la realidad colombiana, el aumento de la criminalidad se ha concentrado en delitos contra la vida. De otra parte, el aumento del grado de eficiencia autónoma del gasto DJS, si se juzga permanentemente, siempre tiende a incrementar el nivel de gasto. Las cifras que pueden servir para medir la eficiencia del gasto DJS no siempre están fácilmente disponibles o, en algunos casos, no parecen lo suficientemente nítidas o, incluso, confiables28. En los gráficos 5.3, 5.4 y 5.5 se presentan unos indicadores alternativos de eficiencia del gasto DJS que se lograron construir con estadísticas de dominio público. Los indicadores de eficiencia son, claro está, bastante burdos y, además, deben interpretarse como indicadores de eficiencia parcialmente endógena, relativa y en el margen. Para aclarar el punto del margen se podría pensar, por ejemplo, que si el gasto DJS no fuese marginal sino sustancialmente menor que el observado hoy, digamos sólo la tercera parte del que actualmente se ejecuta, probablemente el grado de criminalidad sería bastante mayor que el observado, en promedio, en los últimos quince años, además de que tendríamos un nivel de seguridad externa mucho más precario. Un primer grupo de indicadores podría denominarse de “eficiencia intrínseca” porque se basan total o parcialmente en categorías del procedimiento penal29. 28. Un análisis de los criterios e indicadores de eficiencia del gasto público en defensa, justicia y seguridad se encuentra en González y Posada (2000). Una limitación grande del análisis siguiente, como ya se había mencionado, es que no separa el gasto en defensa externa (que no tiene relación con delitos) de los otros componentes del gasto en defensa, seguridad y justicia. Otra limitación es que no separamos los componentes fijos o imposibles de modificar en el corto plazo del gasto DJS, como los pagos de pensiones, de los componentes controlables. 29. El número utilizado para denominar cada indicador es irrelevante. Se construyeron con información publicada por el DANE (1995) y, en algunos casos, con información del Minjusticia, Consejo Superior de la Judicatura e Instituto de Medicina L egal. La información contenida en DANE-Ministerio de Justicia (1996) es compatible con la presentada en este documento. Indicadores más o menos semejantes a los que presentamos aquí han sido utilizados en otros trabajos; véase, por ejemplo, Ramos y Garrido (1995), Montenegro y Posada EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 71 Eficiencia Descripción intrínseca 1 Sentencias (penales) condenatorias / sumarios iniciados 2 Resoluciones de acusación / providencias de calificación 3 Personas aprendidas / delitos con iniciación de sumario Tabla 5.1: Tipos de eficiencia intrínseca Gráfico 5.3: Estos indicadores se definen en la tabla 5.1 y sus magnitudes se presentan en el gráfico 5.330. Antes de continuar conviene hacer una descripción que ayude a entender la razón por la cual esos indicadores se refieren a eficiencia intrínseca. El procedimiento penal tiene tres grandes etapas: la etapa de iniciación de sumarios; la de calificación, que da lugar a las siguientes vías alternativas: resolución de acusación, cesación de procedimiento, preclusión de la investigación, reapertura de la investigación, sobreseimiento temporal o definitivo y archivo; y la etapa de sentencia (o de sentencias ejecutoriadas); a su turno la etapa (1995) y Clavijo (1997 y 1998, cap. VIII). Uno de los análisis que utiliza un mayor número de indicadores de eficiencia de la justicia (tanto intrínsecos como extrínsecos, incluyendo de impunidad) es el de Clavijo (1998, cap. VIII). En Echeverry y Partow (1998) se encuentran indicadores por departamentos del país. 30. Salvo aclaración, la fuente es DANE (1995), así: sentencias condenatorias: cuadro 4.3.4.1, sumarios iniciados: cuadro 4.3.1.3; resoluciones de acusación y providencias de calificación: cuadro 4.3.3.1; aprendidos cuadro 5.2.2.3, y delitos con iniciación de sumario: cuadro 4.3.2.3. La cifra de aprendidos según Minjusticia y C.S.J fueron suministradas por el DNP. Carlos Esteban Posada - Francisco González72 de sentencia tiene tres vías alternativas: sentencia condenatoria, sen- tencia absolutoria y fallo inhibitorio31. Tal como se observa en el gráfico 5.3. los indicadores de eficiencia intrínseca no son constantes a través del tiempo; sus movimientos pueden estar indicando que el componente inducido o endógeno de eficiencia cambia con cada nivel de criminalidad. Pero es evidente que desde mediados de los años 80 y hasta principios de los noventa aumentaron, reflejando, posiblemente, un esfuerzo social conducente a aumentar la eficiencia autónoma del gasto DJS. No obstante, un segundo tipo de indicadores narra una historia distinta. Este segundo grupo podría denominarse de eficiencia “extrínseca” porque no se atiene a categorías del procedimiento penal y, aunque es muy burdo, apunta directamente a un componente grave de criminalidad: los homicidios. El principal, entre estos indicadores, es la relación entre personas capturadas por las autoridades y el número de homicidios reportados por la Policía (gráfico 5.4)32. Gráfico 5.4: 31. En Clavijo (1998, cap. VIII), Ramos y Garrido (1995) se encuentran descripciones del ordenamiento institucional de la rama judicial y de los procedimientos conducentes a las decisiones y fallos judiciales; además presentan indicadores de eficiencia específicos de la rama judicial. Clavijo (idid.) explica la reforma jurídica ordenada por la Constitución de 1991 en materia penal (el sistema acusatorio en cabeza de la Fiscalía, etc.), sus razones, alcances previsibles y su impacto sobre el gasto público en justicia. 32. El número de homicidios según la Policía es reportado por el DANE (1995) en cuadro 5.2.2.6 pero es distinto al número de defunciones por homicidio (reportado en el mismo cuadro del DANE) según clasificación de la Organización Mundial de Salud. EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 73 La historia que narran los indicadores mencionados parece ser la siguiente: tras un estancamiento o una caída de la eficiencia del gasto DJS hasta mediados de los años 80 (probablemente por causa de una mayor criminalidad), la sociedad parece haber hecho esfuerzos por revertir tal tendencia, que se tradujeron en ascensos de algunos indicadores de “eficiencia intrínseca” pero no en uno muy importante, referido a “eficiencia extrínseca”, la relación entre el número de personas aprehendidas y el número de homicidios. Un último indicador lo denominamos “ineficiencia aparente”, pues simplemente relaciona el número total de delitos con el monto total del gasto en DJS, medido éste en millones de pesos constantes (gráfico 5.5). Gráfico 5.5: Vistos los indicadores de manera conjunta, y teniendo en cuenta también la evolución del número de delitos totales y del correspon- diente a homicidios (gráficos 1.1 y 1.2), surge la siguiente conjetura: probablemente está aumentando la eficiencia del aparato policial- judicial para combatir y disuadir la comisión de delitos diferentes a homicidios y secuestros33, como por ejemplo los relativos a patrimonio, administración pública, violencia en el seno de la familia, abuso sexual, etc., pero no ha aumentado significativamente la eficiencia del aparato estatal para combatir los asesinatos (y secuestros), si se compara la situación actual con la vigente a principios de los años 70, cuando el país estaba en vísperas de soportar el inicio de la gran oleada de asesinatos ocurrida entre 1975 y 1995. 33. El número de secuestros aumentó a lo largo de todo el decenio de los noventa (Mejía, 2000). Carlos Esteban Posada - Francisco González74 6. RESUMEN Y CONCLUSIONES El gasto público real en defensa, justicia y seguridad (gasto DJS) ha estado creciendo desde finales de los años 70 no sólo en términos absolutos sino como proporción del PIB y del consumo privado. Tal ascenso se puede entender, al menos parcialmente, como una respuesta óptima ante el aumento de la criminalidad, sobre todo de la concentrada en homicidios (y secuestros), de acuerdo con deter- minados parámetros del modelo presentado en este artículo. Una de las implicaciones más interesantes del modelo es la siguiente: los incrementos autónomos de la eficiencia del gasto en DJS (esto es, las mejoras de eficiencia que surgen de mayores esfuerzos de los miembros del Estado, y que no se derivan simplemente de reducciones ex ante de la criminalidad) causan un aumento del nivel óptimo de tal gasto. Así, el modelo puede entenderse como una explicación detallada de las condiciones bajo las cuales es impertinente suponer la existencia de un trade-off entre nivel y eficiencia del gasto DJS. Por tanto, según este mismo modelo, si la eficiencia del gasto en DJS se estanca o decrece podría no ser óptimo continuar elevando tal gasto. Y no hay evidencia contundente de que la eficiencia de este gasto haya aumentado significativamente en los últimos 10 años en lo que se refiere a los delitos contra la vida y la libertad individual. De ser correcto lo anterior, y si quisiera reducir sustancial y permanentemente la tasa de homicidios intencionales (y secuestros), la sociedad civil debe aceptar mayor nivel de gasto DJS si observa más eficiencia de éste. REFERENCIAS BIBLIOGRÁFICAS Blanchard, Oliver. 1985. “Debt, Deficits, and Finite Horizons”, Journal of Political Economy, Vol. 93, Nº 21. Blanchard, Oliver; Stanley Fischer. 1989. Lectures on Macroeconomics, MIT Press. Clavijo, Sergio. 1997. “Situación de la justicia en Colombia: incidencia sobre el gasto público e indicadores de desempeño”, Justicia y Desarrollo. Debates, Nº 1 (agosto). Clavijo, Sergio. 1998. Política Fiscal y Estado en Colombia, Uniandes. Davoodi, Hamid; Benedict Clements; Jerald Schiff y Peter Debaere. 1999. “Military Spending, the Peace Dividend, and Fiscal Adjustment”, IMF Working Paper ( WP/99/87), julio. DANE; Ministerio de Justicia y del Derecho. 1996. La justicia colombiana en cifras. 1937-94. Ec he verr y, Juan Car los; Z einab Par tow. 1998. “ W hy Justice is unresponsive to crime: the case of cocaine in Colombia”, Borradores Semanales de Economía (B. de la R.), Nº 87. EL G A S T O EN D EF EN S A , J U S T I C I A Y S E G U R I DA D 75 Ehrlich, Isaac. 1973. “Participation in Illegitimate Activities: A Theore- tical and Empirical Investigation”, Journal of Political Economy, Vol. 81, Nº 3. Fajnzylber, Pablo; Daniel Lederman y Norman Loayza. 1998. Deter- minants of Crime Rates in Latin America and the World. The World Bank, Washington. Gaitán, Fernando. 1995. “Una indagación sobre las causas de la violencia en Colombia”, Dos ensayos especulativos sobre la violencia en Colombia, Fonade-DNP. Gaviria, Alejandro. 2000. “Increasing returns and the evolution of violent crime: the case of Colombia”, Journal of Development Economics, Vol. 61. Giha, Janeth; Héctor Riveros y Andrés Soto. 1999. “El gasto militar en Colombia: aspectos macroeconómicos y microeconómicos”, Revista de la CEPAL, Nº 69 (separata, diciembre). González, Francisco; Carlos Esteban Posada. 2000. “Criminalidad, vio- lencia y gasto público en defensa, justicia y seguridad en Colombia”, documento no publicado (disponible a pedido). Granada, Camilo. 1997. “La evolución del gasto en seguridad y defensa en Colombia, 1950-1994”, Reconocer la guerra para construir la paz, CEREC-Uniandes. Gupta, Dipak. 1990. The Economics of Political Violence, Praeger. Lapan, Harvey; Todd Sandler. 1988. “To Bargain or Not to Bargain: That Is The Question”, American Economic Review, Vol. 78, Nº 2. Mejía, Daniel. 2000. “El secuestro en Colombia: una aproximación económica en un marco de teoría de juegos”, Coyuntura Económica, (próxima aparición). Montenegro, Armando; Carlos Esteban Posada. 1995. “Criminalidad en Colombia”, Coyuntura Económica, Vol. XXV, Nº 1. Montenegro, Armando; Carlos Esteban Posada; Gabriel Piraquive. 2000. “ Violencia, criminalidad y justicia: otra mirada desde la economía”, Coyuntura Económica, (próxima aparición). Posada, Carlos Esteban. 1994. “Modelos económicos de la criminalidad y la posibilidad de una dinámica prolongada”, Planeación y Desarrollo, Vol. XXV. Ramos, Jorge; Daira Garrido. 1995. “Gasto estatal y administración de justicia en Colombia”, Borradores semanales de economía (B. de la R.), Nº 45. Rubio, Mauricio. 1999. Crimen e impunidad, Tercer Mundo-CEDE. Sandler, Todd; Keith Hartley. 1995. The Economics of Defense, Cambridge University Press. 
work_4rrkxjcwdjbzlgcrpc3x55iqja	----	Punish and The History of Sexuality (Vol. 1); there is also reference to the importance of studying political events and a return to empiricism in political thought. Hannah Arendt stands as the only woman in the text, and while Roy T. Tsao does justice to her work, it is unfortunate that once again her affair with Heidegger is mentioned. Once again the theme of ideology is covered by Tsao’s analysis of Arendt’s The Origins of Totalitarianism; Arendt’s thesis is that a Totalitarian ‘movement’ is one in which all government functions are subordinated ‘to the momentary aims of the movement’s all-embracing ideologyyand the attraction of the movements lay in those masses’ longing to escape from human reality into the sheer fiction of ideology’ (p. 171). As Carver and Martin point out, ‘Unlike the Anglo-American tradition of thought, with which they are commonly contrasted, Continental ideas are routinely derided for being too ‘‘poetic’’, needlessly convoluted and hence dangerously removed from ‘‘common sense’’’ (p. 3). Of course brilliant scholars such as Arendt in Life of the Mind describe poetry as a ‘sign of genius’ and she also makes the point that common sense is on the opposing side of a war between it and reason. Thus ‘If we enter into their spirit and consider their enduring value or contemporary resonances, we may find ourselves trans- formed, or at very least informed, in a way we hadn’t expected’ (p. 3), the book certainly reaches this goal. This was not only a highly informative and engaging read that has provided me with fresh perspectives on old friends and introduced me to new ones, it was also an exciting page turning journey through thought. I would recommend that those with an interest in political theory or political philosophy consider Palgrave Advances in Continental Political Thought. Alex Karolis University of Canberra, Canberra, Australia Justice Beyond Borders Simon Caney Oxford University Press, Oxford, 2006, 319pp. ISBN: 0 19 829350 X. Contemporary Political Theory (2008) 7, 222–224. doi:10.1057/palgrave.cpt.2007.15 The book has two purposes: to present a cosmopolitan global political theory and to critique three rival theoretical approaches (realism, nationalism and the society-of-states tradition). Caney meets both purposes by examining six central Book Reviews 222 Contemporary Political Theory 2008 7 issues of controversy: universalism, civil and political justice, distributive justice, political structures, just war and humanitarian intervention. In each case he argues for cosmopolitan solutions to the moral and theoretical problems raised and refutes arguments offered by the rival traditions. Caney devotes a chapter to each of his six issues. Chapter 2 reassesses the debate between moral relativists and moral universalists. After rejecting some common objections to relativism, Caney presents his own argument for universalism which refers us to properties that he deems are shared by all human beings, such as basic needs. He then claims that if there are valid moral principles concerning these properties — which he assumes there are — then they must apply universally, since it is logical to suppose that ‘valid moral principles apply to all those who are similar in a morally relevant way’ (p. 36). Chapter 3 argues for an extensive list of civil and political human rights. In so doing it confronts two groups of doubters: those that deny there are any human rights and those, such as Rawls, who argue for a more minimal list than the full liberal package. Caney finds the former group motivated by unfounded fears: that rights impose uniformity or engender selfishness. The latter group he deems guilty of two counts of illogic. First, failing to show why foreigners should not be entitled to the same rights that citizens of liberal states are entitled to. Second, failing to recognize the connections between the minimal rights they argue for and the more extensive rights they argue against. Chapter 4 contends that global distributive justice demands the application of four principles: subsistence rights, equality of opportunity, equal pay for equal work and priority for the worst off. Caney’s argument is once again founded on a consistency claim: principles applying domestically should apply globally unless there is good reason to maintain a double standard. He explores arguments defending a double standard made by realists and nationalists and finds them wanting. Chapter 5 argues for cosmopolitan institutions such as a directly elected second assembly at the UN, reformed financial institutions and a strengthened International Court of Justice. Such institutions, he claims, are demanded both on democratic — or what he calls ‘rights-based’ — grounds of giving people a voice in decisions that affect their ability to exercise their rights and the ‘instrumental’ grounds of realizing the principles of justice set out in the previous two chapters (pp. 158–159). Caney goes on to argue, against society- of-states theorists, that the state system cannot act as an adequate alternative to cosmopolitan institutions and, against nationalists, that many of the claims made for national self-determination are too strong. Chapter 6 argues for a just war theory based on the concept of individual rights. A just cause for war is the defence of a political regime that respects its citizens rights or at least does a better job than the attacking regime would do in its place. Caney thus rejects Walzer’s account of jus ad bellum that ties just Book Reviews 223 Contemporary Political Theory 2008 7 cause to the right of states to self-government. One criticism Caney makes of Walzer is that his principles of jus ad bellum and jus in bello fail to logically relate. By contrast Caney argues that principles of jus in bello should be based upon the same concern for individual rights that motivate his principles of jus ad bellum. It is out of respect for the rights of non-combatants that Caney argues they should not ordinarily be targeted. However since Caney’s theory of rights is consequentialist he (controversially) permits the targeting of non-combatants when necessary ‘to protect the rights of a larger group of non- combatants’ (p. 214). Chapter 7 makes an argument for humanitarian intervention also based on individual rights. A just intervention, Caney claims, will defend individual rights against states that, having failed to respect their citizens’ rights, ‘lack moral standing’ (p. 234). He confronts standard arguments against humani- tarian intervention — for instance, that it violates self-government and destroys international stability — but accepts the need for a number of preconditions before a state has a moral, let alone legal, right to intervene. Cosmopolitans are often criticized for utopianism. Perhaps there is no more reason to fault cosmopolitans for holding high ideals than there is to fault political practice for failing to realize them. Nevertheless one pleasing aspect of Caney’s work is he makes cosmopolitan policies seem genuine possibilities. He does so by engaging with the sorts of empirical debates normative philosophers rarely touch. For instance, using the example of the Tobin tax, Caney disputes the claim that every state need cooperate with liberal practices for progress to nevertheless be made (p. 138). On a related point: Caney’s attention to international relations literature makes Justice Beyond Borders a book for IR scholars, as much as for political theorists. Some might complain that the book tries to cover too many topics. Caney anticipates this criticism and in defence points to the extent to which his topics interrelate (pp. 20–21). In any case the criticism would only be apt if the quality of the book’s content suffered as a result of its breadth. This is plainly not the case. The book is rich in detail and insight. Caney moves systematically through the material sorting bad arguments from good while formulating each with impressive clarity. Indeed, the book’s comprehensiveness is actually its primary virtue. Even in the case of familiar arguments, we learn so much simply from Caney’s careful positioning of each point within an overall structure. It is like finally being handed a map of the theoretical landscape. And since few landscapes are as crowded or complex as global political theory, Justice Beyond Borders is a map I do not advise anyone addressing this subject to go without. Kieran Oberman St Cross College, Oxford, UK Book Reviews 224 Contemporary Political Theory 2008 7 Justice Beyond Borders 
work_4sg725ksgzexpgfn7zmi3vilna	----	TOPIA: Canadian Journal of Cultural Studies | UTP Journals Cookies & Privacy This site uses cookies for analytics and access management. For more information, view our Privacy Policy. Please accept our Terms and Conditions before using our website. Learn more. Skip to Main Content (Press Enter) Cart   |  Renew   |  Help  |   ? Sign in  |  Register ☰ HOME BROWSE PUBLICATIONS ABOUT US About University of Toronto Press Copyright & Permissions Ethics and Publication Malpractice Open Access Awards SUBSCRIBE Subscribe or Renew Online Subscriber Resources The Collection 2021 Catalogue (PDF) RESOURCES For Authors For Librarians For Subscribers Frequently Asked Questions PUBLISH WITH US Partner with Us Call for Papers CONTACT US ☰ Journal Menu Journal Menu ☰ Current Issue Browse Issues COVID-19 Essays Subscribe About Editorial Board Aim & Scope Abstracting & Indexing Permissions Publication Ethics and Malpractice Advertising For Authors Submission Guidelines Open Access Books for Review Recommend Search in: This Journal Anywhere Citation Advanced Current Issue Browse Issues COVID-19 Essays Subscribe About Editorial Board Aim & Scope Abstracting & Indexing Permissions Publication Ethics and Malpractice Advertising For Authors Call for Papers Submission Guidelines Open Access Books for Review Recommend ☰ Journal Menu Home > TOPIA: Canadian Journal of Cultural Studies > List of Issues TOPIA: Canadian Journal of Cultural Studies ISSN: 1206-0143; eISSN: 1916-0194 Online from: January 1, 1997 Frequency: Twice a year TOPIA's mandate is to provide a venue for critical research in cultural studies in Canada and beyond. TOPIA publishes original, peer-reviewed research and theoretical essays on culture that are accessible to a wide readership in the humanities and social sciences. Areas of research relevant to this mandate include the historical, institutional and aesthetic formation of Canadian and postcolonial culture; indigenous studies; cultural memory; and environmental cultural studies. TOPIA publishes two issues per year and is available by subscription in print and online. Current Issue All Issues Most Read Available Content Available Issues Forthcoming Volume 41 Vol. 41, Fall 2020: Special Issue on Our COVID Conjuncture: Critical Essays on the Pandemic; Guest Editors: Penelope Ironstone and Greg Bird (pp. 5-198). Volume 40 Vol. 40, Spring 2019 (pp. 5-147). Volume 39 Vol. 39, Spring 2018: Black Lives, Black Politics, Black Futures (pp. 5-221). Volume 38 Vol. 38, Fall 2017 (pp. 5-208). Volume 37 Vol. 37, Spring 2017 (pp. 5-246). Volume 36 Vol. 36, Fall 2016 (pp. 7-231). Volume 35 Vol. 35, Spring 2016 (pp. 27-235). Volume 34 Vol. 34, Fall 2015 (pp. 6-156). Volume 33 Vol. 33, Spring 2015 (pp. 7-267). Volume 32 Vol. 32, Fall 2014 (pp. 21-346). Volume 30-31 Vol. 30-31, Fall 2013/Spring 2014 (pp. 262-332). Volume 29 Vol. 29, Spring 2013 (pp. 183-219). Volume 28 Vol. 28, Fall 2012: Out of the Ruins, the University to Come (pp. 5-315). Volume 27 Vol. 27, Spring 2012 (pp. 5-318). Volume 26 Vol. 26, Fall 2011 (pp. 5-216). Volume 25 Vol. 25, Spring 2011 (pp. 5-279). Volume 23-24 Vol. 23-24, Spring 2010 (pp. 9-456). Volume 22 Vol. 22, Fall 2009 (pp. 5-246). Volume 21 Vol. 21, Spring 2009 (pp. 5-251). Volume 20 Vol. 20, Fall 2008 (pp. 5-256). Volume 19 Vol. 19, Spring 2008 (pp. 5-212). Volume 18 Vol. 18, Fall 2007 (pp. 11-182). Volume 17 Vol. 17, Spring 2007 (pp. 5-178). Volume 16 Vol. 16, Fall 2006 (pp. 5-176). Volume 15 Vol. 15, Spring 2006 (pp. 5-163). Volume 14 Vol. 14, Fall 2005 (pp. 5-142). Volume 13 Vol. 13, Spring 2005 (pp. 5-187). Volume 12 Vol. 12, Fall 2004 (pp. 5-158). Volume 11 Vol. 11, Spring 2004 (pp. 5-208). Volume 10 Vol. 10, Fall 2003 (pp. 1-122). Volume 9 Vol. 9, Spring 2003 (pp. 3-130). Volume 8 Vol. 8, Fall 2002 (pp. 1-137). Volume 7 Vol. 7, Spring 2002 (pp. 1-131). Volume 6 Vol. 6, Fall 2001 (pp. 1-128). Volume 5 Vol. 5, Spring 2001 (pp. 1-121). Volume 4 Vol. 4, Fall 2000 (pp. 5-120). Volume 3 Vol. 3, Spring 2000 (pp. 7-120). Volume 2 Vol. 2, Spring 1998 (pp. 11-119). Volume 1 Vol. 1, Spring 1997 (pp. 7-108). SUBMIT To submit your article to TOPIA, please click the link above to our online submission site. Connect with the Journal Top Articles Most Recent Most Read Most Cited Volume: 41, pp. 5-10 Our COVID Conjuncture: Critical Essays on the Pandemic Penelope Ironstone and Greg Bird Volume: 41, pp. 11-12 The New Normal Victor Li Volume: 41, pp. 13-21 COVID-19: An Essay in Keywords Penelope Ironstone See More Volume: 40, pp. 5-14 Still Here Christina Sharpe Volume: 16, pp. 23-49 Multiculturalism, Racism and Infectious Disease in the Global City: The Experience of the 2003 SARS Outbreak in Toronto Roger Keil and Harris Ali Volume: 39, pp. 29-47 Reading Black Resistance through Afrofuturism: Notes on post-Apocalyptic Blackness and Black Rebel Cyborgs in Canada Robyn Maynard See More Volume: 36, pp. 43-57 From a Fishy Place: Examining Canadian State Law Applied in the Daniels Decision from the Perspective of Métis Legal Orders Zoe Todd Volume: 12, pp. 25-40 Second-hand Shaman: Imag(in)ing Indigeneity from Le Jeune to Pratt, Moore and Beresford Sam W. McKegney Volume: 25, pp. 5-28 To Hear the Whistle Blow: Technology and Politics on the Battle River Branch Line Darin Barney See More Subscription Options Institutional Offers TOPIA Volume 43-44 (online only): $105.00 TOPIA Volume 43-44 (print and online): $172.00 UTP Collection About the Collection (online only): $4310.00 UTP Collection About the Collection (print and online): $4905.00 TOPIA Archive Volumes 1-40 (online only): $1580.00 Individual Offers TOPIA 1-Year (online only): $55.00 TOPIA 1-Year (print and online): $95.00 TOPIA Newsletter Sign Up FEEDBACK Your name Email Message UNIVERSITY OF TORONTO PRESS Journals Division ABOUT UTP Journals List of Journals Copyright & Permissions Publication Ethics & Malpractice Open Access Publish with Us Contact Us RESOURCES Resource Centre FAQ Authors Librarians Subscribers Site Help Site License Agreement (PDF) UNIVERSITY OF TORONTO PRESS UTP Books UTP Distribution UofT Bookstore Job Opportunities Environmental Policy Privacy Policy Accessibility Policy © 2021 University of Toronto Press Powered by Atypon® Literatum   
work_4wbfrpbd6fazles77wqqnbohzi	----	NQHR 2014-02.indb Netherlands Quarterly of Human Rights, Vol. 32/2, 183–213, 2014. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 183 FOREGROUNDING SOCIO-ECONOMIC RIGHTS IN TRANSITIONAL JUSTICE: REALISING JUSTICE FOR VIOLATIONS OF ECONOMIC AND SOCIAL RIGHTS Amanda Cahill-Ripley* Abstract: Transitional justice has traditionally ignored or sidelined violations of economic and social rights, focussing on violations of civil and political rights as the primary grave human rights violations to be addressed when seeking justice for past atrocities. Th is paper explores the omission of these rights from the fi eld and uncovers the shortcomings of such an approach. It will argue that there is a need for transitional justice to address both deliberate violations of economic and social rights resulting from confl ict or repression, but also structural violations which have acted as root causes of confl ict within the State. It is submitted that past experiences of prosecutorial and restorative justice illustrate that violations of economic and social rights have been acknowledged as background information rather than primary concerns for transitional justice. In conclusion it is contended that economic and social rights need to be brought to the foreground of transitional justice processes in order to ensure eff ective transitional justice which refl ects the needs and rights of the local population, and addresses the root causes of confl ict, thus preventing confl ict reoccurring around the same sources. Th e inclusion of economic and social rights concerns within transitional justice mechanisms will therefore contribute to a more holistic and inclusive transitional justice process. Keywords: confl ict; economic, social and cultural rights; international criminal law; peacebuilding; social justice; structural violence; transitional justice; truth commissions * Amanda Cahill-Ripley is Lecturer in Law at Lancaster University, UK and Visiting Lecturer in Human Rights Law at the University of Bergen, Norway. Contact a.cahill@lancaster.ac.uk. Amanda Cahill-Ripley 184 Intersentia 1. INTRODUCTION Transitional justice has traditionally ignored or sidelined violations of economic and social rights, focussing almost entirely on violations of civil and political rights as the primary grave human rights violations to be addressed when seeking justice for past atrocities.1 Whilst selected authors have addressed the at times confl icting aims of ‘justice’ and ‘peace’,2 very little attention has been given to the consequences for peace and justice if violations of economic and social rights are either completely ignored, are relegated to secondary concerns or are presented as ‘background’ information, that is information which is setting the context for what are perceived as more serious violations of civil and political rights. Whilst violations of economic and social rights may seem to be of a lesser gravity than those of civil and political rights (such as the right to life and freedom from torture), socio-economic rights violations can constitute gross human rights violations. Some examples may include the burning and destruction of homes and crops; the poisoning of water; forced evictions; deliberately induced starvation and displacement leading to lack of housing, water and food, subsequent ill health and disease, lack of education and employment and in the worst cases human deaths. Moreover, such violations may be more widespread and systematic. For instance, in the confl ict in Timor-Leste it was noted that far more people were aff ected by economic and social rights violations than civil and political rights violations.3 Th e displacement of people from their villages, farms and traditional settlements resulted in severe violations of the rights to food, health, housing, education, self-determination 1 Offi ce of the High Commissioner for Human Rights, Analytical study on human rights and transitional justice (United Nations 2009) A/HRC/12/18 para 59; International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements (International Council on Human Rights Policy 2006) 101; Lisa Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework ’ (2008) 2 Th e International Journal of Transitional Justice 331, 333; L. Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs’ (2012) 21(2) Social and Legal Studies 171, 173. 2 Hurst Hannum, ‘Peace versus Justice: Creating Rights as well as Order out of Chaos’ (2006) 13(4) International Peacekeeping 582; N. Roht-Arriaza and J. Mariezcurrena (eds), Transitional Justice in the 21st century – Beyond Truth versus Justice (Cambridge University Press 2006); I. Zartman and V. Kremeniuk (eds), Peace Versus Justice: Negotiating Forward- and Backward-looking Outcomes (Rowman and Littlefi eld 2005); Ellen L. Lutz, Eileen F. Babbitt, and Hurst Hannum, ‘Human Rights and Confl ict Resolution from the Practitioners’ Perspectives’ (2003) 27(1) Th e Fletcher Forum of World Aff airs 173; C. Lekha Sriram and S. Pillay (eds) Peace Versus Justice?: Th e Dilemmas of Transitional Justice in Africa (James Currey Publishers 2010); P. Schulz, Peace Versus Justice?: Th e International Criminal Court (ICC) in Africa (VDM Publishing 2011). 3 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR) (Commission for Reception, Truth and Reconciliation 31  October 2005) Executive Summary 74; ch 7.9: Economic and Social Rights. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 185 of resources and freedom of movement.4 Th ese economic and social rights violations were directly attributable to the confl ict. In addition, violations of economic and social rights can act as confl ict triggers.5 As the International Council on Human Rights Policy notes, ‘[…] socio-economic issues oft en lie at the core of confl icts, and are particularly implicated in the transitional period, when reconstruction of war-torn societies must take place’.6 As such, ignoring violations of such rights is a risk both to the peace process and the eff ectiveness of justice mechanisms during transition. Th e Editors of Th e International Journal of Transitional Justice note, Our preoccupation with justice aft er civil upheaval seems to outstrip our attention to preventing or attending to the systematic injustices – economic, social and political – that fuel the causes that erupt into paroxysms of violence. We have an international criminal court to prosecute war criminals, yet millions of civilians are deprived of adequate water, nutrition and healthcare […]. Th ere is a conspicuous absence of international accountability for these injustices.7 Th is paper will explore this omission of economic and social rights from transitional justice. It will examine possible reasons for the limited attention or indeed exclusion of these rights and uncover the shortcomings of such an approach. It will investigate whether there is a need to redefi ne transitional justice, to embrace a holistic conception of justice8 inclusive of ideas of social justice including therefore justice for violations of economic, social and cultural rights. It will argue that the recognition of these rights within transitional justice mechanisms will make transitional justice more eff ective in responding to the needs of the people, fi rstly by seeking remedy for deliberate and direct violations of economic and social rights but also by addressing violations of these rights which have acted as root causes of confl ict, thus helping to prevent confl ict reoccurring around the same sources. Further, if human rights are truly indivisible and interdependent violations of civil and political rights cannot be addressed eff ectively in times of transition unless corresponding and related violations of economic and social rights are also addressed. Th e inclusion of economic and social rights concerns within transitional justice mechanisms will therefore contribute to a more holistic and inclusive transitional justice process. 4 Ibid. 5 Offi ce of the High Commissioner for Human Rights (n 2); E. Schmid, ‘Liberia’s Truth Commission Report: Economic, Social and Cultural Rights in Transitional Justice’ (2009) XXIV Praxis – Th e Fletcher Journal of Human Security 5, 6; S.C. Agbakwa, ‘A Path Least Taken: Economic and Social Rights and the Prospects of Confl ict Prevention and Peacebuilding in Africa’ (2003) 47(1) Journal of African Law 38, 40; Laplante (n 1) 334–335. 6 International Council on Human Rights Policy (n 1) 101. 7 Editorial, (2012) 6(1) International Journal of Transitional Justice (IJTJ) 6. 8 A. Boraine, ‘Transitional Justice: A Holistic Interpretation’ (2006) 60(1) Journal of International Aff airs 17, 17. Amanda Cahill-Ripley 186 Intersentia Th e defi nition of transitional justice is contested: One frequently quoted defi nition is provided by Roht-Arriaza, who defi nes transitional justice as ‘a set of practices, mechanisms and concerns that arise following a period of confl ict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law’.9 However, as Arbour argues, Transitional justice must have the ambition to assist the transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to – but also beyond – the crimes and abuses committed during the confl ict that led to the transition, and it must address the human rights violations that pre-dated the confl ict and caused or contributed to it. With these aims so broadly defi ned, transitional justice practitioners will very likely expose a great number of discriminatory practices and violations of economic, social, and cultural rights.10 With such variety in the interpretation of what transitional justice is, the fi rst section of the paper will examine current defi nitions of transitional justice and explore the reasons why economic and social rights have been largely excluded from the fi eld. Th is will include an investigation of the notion of justice inherent in transitional practices. Second, the author will examine previous examples of transitional justice mechanisms to explore how they have dealt with violations of economic and social rights. Th is will include consideration of prosecutorial methods such as international tribunals and the International Criminal Court (ICC) and an investigation of restorative methods such as truth and reconciliation commissions. Cases explored include South Africa, Liberia, Sierra Leone and Timor-Leste. Th ese particular cases have been selected as limited examples where the Commissions have considered economic and social rights in some way. Finally there will be a discussion on how to expand and develop the concept and practice of transitional justice to incorporate these rights, including off ering proposals for improvement drawn from good practice and identifying continuing challenges to this process. 2. WHY IS THERE A LACK OF ECONOMIC AND SOCIAL RIGHTS WITHIN ‘TRADITIONAL’ TRANSITIONAL JUSTICE? 2.1. THE ‘NARROW’ DEFINITION OF TRANSITIONAL JUSTICE It is submitted that ‘Traditional’ transitional justice consists of prosecutorial justice, such as tribunals and trials, where the focus is on establishing accountability, 9 Roht-Arriaza and Mariezcurrena (n 2) 2. 10 L. Arbour, ‘Economic and Social Justice for Societies in Transition’ (2007) 40(1) International Law and Politics 1, 3. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 187 responsibility and punishment for crimes. It also consists of mechanisms of restorative justice, although the concept of ‘restorative justice’ is limited in this discussion to truth and reconciliation commissions.11 Th is mechanism focuses on the idea of ‘truth telling’ as allowing reconciliation. Th e above mechanisms are judicial or quasi- judicial and their primary mandate is to deal with mass and grave violations that have occurred during the confl ict in question. However, very little consideration has been given to economic and social rights within these mechanisms. Th ere are several reasons for this. One reason for the omission (or very limited consideration) of such rights to date is simply because economic and social rights are not seen as within the remit of transitional justice. Th is argument is dependent on how transitional justice is defi ned and what the role of transitional justice is believed to be. Transitional justice has many defi nitions,12 and arguments have been put forward for it to include, for instance, justice for economic crimes, development concerns and local and community-based approaches to justice and reconciliation.13 However, it remains overwhelmingly concerned with criminal prosecutions and truth commissions in relation to civil and political rights violations. Olsen defi nes transitional justice as ‘the array of processes designed to address past human rights violations following periods of political turmoil, state repression, or armed confl ict’.14 Olsen notes ‘Human rights violations are defi ned as extrajudicial killings, disappearances, torture and arbitrary arrest and imprisonment’ only.15 Two signifi cant factors are apparent with this defi nition. First, the focus is purely on past violations, and, second, on violations of civil and political rights alone – not economic and social rights. Th is defi nition could be considered illustrative of the prevalent traditional concept of transitional justice which has dominated the fi eld until recently.16 2.2. ECONOMIC AND SOCIAL RIGHTS – NOT LEGAL RIGHTS A further reason why transitional justice both in theory and in practice has tended to omit or severely limit consideration of economic and social rights is the familiar 11 Other mechanisms such as reparations and institutional reform can be considered a part of restorative justice. For example see T. Olsen, L. Payne and A. Reiter, Transitional Justice in Balance – Comparing Processes, Weighing Effi cacy (US Institute of Peace Press 2010) 12. However, in terms of traditional transitional justice, the focus has been very much on truth commissions. 12 For example see International Centre for Transitional Justice (ICTJ), Fact Sheet ‘What is Transitional Justice?’ (ICTJ 2009) at <http://ictransitional justice.org/about/transitional-justice>, last accessed 14  June 2013; P. Arthur, ‘How Transitions Reshaped Human Rights: A Conceptual History of Transitional Justice’ (2009) 31(2) Human Rights Quarterly 321; C. Bell, ‘Transitional Justice, Interdisciplinarity and the state of the “Field” or “Non-Field”’ (2009) 3(1) International Journal of Transitional Justice 5; R. Teitel, ‘Th eoretical and International Frameworks – Transitional Justice in a New Era’ (2002) 26 Fordham International Law Journal 893; Arbour (n 10); and Olsen et al (n 11). 13 Editorial (n 7) 1–10. 14 Olsen et al, (n 11) 11. 15 Ibid, 11 original footnote 10. 16 Editorial (n 7) 6. Amanda Cahill-Ripley 188 Intersentia argument that these rights are not ‘real’ or ‘legal’ rights or at best constitute secondary rights – general aims to be achieved progressively as the ideal standard.17 Th is view contributes to the argument that economic and social rights are also non-justiciable.18 Th e traditional conception of transitional justice has focussed upon grave violations of civil and political rights as the only justiciable rights that can be tried in a court of law. Th erefore, if economic and social rights are not viewed as justiciable rights they cannot be incorporated within this traditional model of transitional justice. Th is argument is also a consequence of the dependence within the fi eld on a criminal justice model (see below). Moreover, there remains a general lack of understanding on the part of scholars and practitioners within the fi eld of transitional justice as to what economic and social rights are. For example, scholars have equated such rights with economic policy or development plans rather than comprehending them as distinct and discrete legal entitlements with a legally defi ned scope and normative content.19 2.3. THE IDEA OF CRIMINAL JUSTICE V OTHER NOTIONS OF JUSTICE A third and related argument is that socio-economic rights have been omitted from transitional justice mechanisms because of the focus on criminal justice.20 Th ese mechanisms have relied on defi nitions of justice based in criminal law rather than utilising diff erent conceptions of justice, for example, social justice. Th is is also due to the dominance of prosecutorial forms of justice.21 Arbour has noted, ‘As transitional justice is heavily inspired by mainstream justice and criminal law, its neglect of economic, social, and cultural rights is merely symptomatic of a deep ambivalence within justice systems about social justice’.22 One explanation for this ambivalence towards social justice is the plethora of defi nitions surrounding the concept. Social justice has been defi ned as anything from distributive justice to equality of opportunity.23 Consequently, the idea of social justice has been largely excluded from the law as either an empty concept with little substance (for example, equality of opportunity) or as a radical concept such as redistributive justice, which can confl ict with liberal ideals of human rights and is ideologically and fi nancially unacceptable to many States. However, it is not necessarily undesirable to utilise the concept of social 17 Arbour (n 10) 11; D. Sharp, ‘Addressing Economic Violence in Times of Transition: Toward a Positive- Peace Paradigm for Transitional Justice’ (2012) 35 Fordham International Law Journal 780, 797. 18 R. Carranza, ‘Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?’(2008) 2 Th e International Journal of Transitional Justice 310, 315. 19 For an example of such an approach see Waldorf (n 1). 20 Waldorf (n 1) 173. 21 Olsen et al (n 11) 12. 22 Arbour (n 10) 5. 23 Ibid, original footnote 10. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 189 justice as a basis for expanding our ideas of what transitional justice should include, namely economic and social rights, but that in order to do so we need to defi ne what we mean by social justice. Th e following defi nition put forward by Louise Arbour is useful: Social justice refers to minimum legal standards guaranteeing substantive equality (as refl ected in international human rights instruments prohibiting discrimination and protecting economic, social, and cultural rights) in the fulfi lment of the idea of freedom from want. Substantive equality is important to social justice, as equality with no qualifi cation may be misinterpreted as formal equality or equality of opportunities only.24 Th is conception of social justice can be defi ned as ‘substantive social justice’, where violations of economic and social rights can be seen as an element of social injustice. Th erefore, acknowledging and seeking remedy for these violations can be seen as a form of achieving substantive social justice which could be incorporated into transitional justice. Moreover, the link between such rights and social justice is not a new idea.25 Indeed, in the context of poverty alleviation, Williams notes that poverty is ‘the absence of basic justice for a specifi c person or groups of persons as a condition of severe material deprivation’ where justice is the ‘formal, impartial and consistent application of specifi c rules in relation to rights such as the rights to equality, human dignity, […] housing, healthcare, food, water, social security, [and] education […]. Th e protection and enforcement of these rights would constitute substantive justice’.26 It is evident that violations of economic and social rights have been ignored or sidelined within transitional justice as they are not viewed as a legitimate concern for prosecutorial justice or are deemed too diffi cult an issue for criminal accountability. Rather they can be viewed as an element of social justice which has been excluded from the fi eld. Th e dependency of transitional justice on criminal justice models has also been critiqued in terms of a general lack of eff ectiveness. Bell notes, ‘the demands of communities do not start and end with the punishment of individuals […] mechanisms for dealing with the past respond also to demands for truth which cannot be delivered by traditional criminal models’.27 24 Arbour (n 10). 25 See A. Sen, Th e Idea of Justice (Penguin 2009); J. Rawls, A Th eory of Justice (Belknap Press 1971 Reprint 2005); M. Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9(2–3) Feminist Economics 33; and K. Kallen, Social Inequality and Social Injustice – A Human Rights Perspective (Palgrave Macmillan 2004). 26 J. Williams, ‘Poverty: A Human Rights Violation in Post-Apartheid South Africa’ in T. Pogge (ed), Freedom from Poverty as a Human Right – Th eory and Politics (Vol.2) (UNESCO 2010) 321, 345. 27 C. Bell, Peace Agreements and Human Rights (Oxford University Press 2000) 289. Amanda Cahill-Ripley 190 Intersentia 2.4. ECONOMIC AND SOCIAL RIGHTS AS BACKGROUND INFORMATION Th e overwhelming focus on notions of criminal justice coupled with the argument that socio-economic rights are not legal justiciable rights has resulted in an omission of these rights from the traditional remit of prosecutorial justice. However, how have restorative justice mechanisms such as truth commissions dealt with economic and social rights? It is fi rst important to consider what the purpose of a truth commission is. Olsen states that a truth commission should ‘attempt to bring justice by working toward a new inclusive society that addresses the fundamental needs of the population’.28 Th ere is a clear development in remit from prosecutorial justice in that a truth commission should attempt to look to the future, not just deal with past abuses in isolation (if this is indeed possible). However, how can the ‘fundamental needs of the population’ be addressed without addressing economic and social needs (rights) as well as civil and political rights? Attempting to address violations of civil and political rights without addressing related violations of economic and social rights undermines the indivisibility of human rights and does not take into account their interdependence. For example, if someone has been forcibly displaced, their home burnt down and their access to food denied and they subsequently die from starvation and exposure, this would constitute a violation not just of the right to life but also the rights to food, housing and health. Moreover, the failure to address violations of economic and social rights impacts upon the remedy for violations of civil and political rights. For instance, if someone has been subjected to inhumane treatment and is off ered rehabilitation as one form of reparation this will be of limited eff ect if they have no home or no long term sustainable means to support themselves to enjoy an adequate standard of living. Th erefore, for a truth commission to fulfi l this wider mandate it will need to consider economic and social rights as well as civil and political rights. Evidence to date suggests that traditionally truth commissions have also limited their consideration of human rights abuses to violations of civil and political rights.29 Where truth and reconciliation commissions have considered socio-economic rights they have tended to consider them as evidence of the wider context of the confl ict.30 Deliberate and direct grave violations have been presented as secondary information, either as supporting evidence of wider conditions of confl ict-induced poverty or as background information to explain the context in which civil and political rights’ violations have taken place. Exceptionally, a very small number of truth commissions have attempted to address socio-economic rights in a limited manner noting for example that they can be causal factors of confl ict. Th ese few cases are examined 28 Olsen et al (n 11) 12. See also International Council on Human Rights Policy, ‘Aim of a Truth Commission’, (n 1) 80. 29 Lisa Laplante, ‘On the Indivisibility of Rights: Truth Commissions, Reparations and the Right to Development’ (2007) 10 Yale Human Rights and Development Law Journal 141, 142. 30 Sharp (n 17) 793–794. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 191 shortly but an illustrative example can be seen in the case of South Africa, where economic and social problems have been a major consequence of the apartheid system.31 During the mandate of the South African Truth and Reconciliation Commission (SATRC) violations of economic and social rights were seen purely as contextual information for narrowly defi ned gross human rights violations.32 Hence, these violations remained in the background of the SATRC rather than being a central concern of the body. 2.5. THE NATURE AND SCOPE OF ECONOMIC AND SOCIAL RIGHTS VIOLATIONS Th e idea of economic and social rights as contextual information can be seen as closely linked to the problematic issue of dealing with transition in countries which prior to the confl ict had pre-existing violations of economic and social rights or, at the very least economic and social conditions which threatened the enjoyment of such rights by sectors of society (due to discrimination and inequality). Whilst in some cases it will be easy to identify specifi c acts of violence against individuals and communities that constitute grave violations of economic and social rights, in other cases these violations will be a result of structural and endemic violence and repression by the State, for example the former apartheid system in South Africa. Th is raises the question of whether transitional justice should include consideration of historical injustices within a State or consider only limited episodes of violence.33 If the latter is true this may have an impact on economic and social rights violations that are a result of structural violence and structural injustices that pre-date the confl ict or which may have helped instigate it.34 Structural violence exists when the structures of the State support the unequal distribution of power (and agency) which is reinforced through unequal distribution of resources.35 Th us structural violence based upon this ‘unequal distribution of power then systematically disadvantages those who do not hold as much if any power at all’.36 Examples of such structural violence can include racial inequality, poverty and institutionalised discrimination. Moreover, the link between structural violence and violations of economic and social rights is clear. Ho notes that ‘When economic and social structures conspire to limit one’s agency to 31 Ibid. 32 South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report Vol. 5, Chapter 1 Analysis of Gross Violations of Human Rights (South African Truth and Reconciliation Commission 1998) 11, para 48. 33 Editorial (n 7) 3. 34 Sharp (n 17) 802. 35 For a defi nition and discussion of the meaning of structural and or institutional and indirect violence see J. Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6(3) Journal of Peace Research 167, 170. See also P. Farmer, Pathologies of Power (University of California Press 2005). 36 K. Ho, ‘Structural Violence as a Human Rights Violation’ (2007) 4(2) Essex Human Rights Review 1, 4. Amanda Cahill-Ripley 192 Intersentia the extent that fundamental human needs cannot be met then structural violence becomes a structural violation of human rights’.37 Th us, the perceived diffi culty with outlining the scope and nature of socio- economic rights violations to be considered by transitional justice bodies is a further reason why such violations have been sidelined within the discipline. Nevertheless, these structural socio-economic violations can cause both frustration and unrest which in turn can drive confl ict. If there is no attempt to address these structural and societal inequalities then the risk is that confl ict will resurface despite eff orts to address more direct violations of economic and social rights within transitional justice mechanisms. As such, there is a question to be answered as to how these mechanisms can address not only grave violations of such rights that have taken place as a deliberate and direct result of the confl ict, but also systematic and structural violations of economic and social rights that act as an ongoing source of injustice and root cause of the confl ict itself. Laplante notes, ‘presenting socioeconomic root causes of confl ict as historical context leaves policy change to the discretion of political leaders, while presenting them as rights violations makes redress and reform a political imperative’.38 3. WIDER AND DEEPER TRANSITIONAL JUSTICE As previously stated, in the past, dominant thinking and practice in transitional justice has focussed on addressing civil and political rights violations that have occurred during the confl ict and measures to deal with the past. Th is can be deemed ‘traditional’ transitional justice. However, the International Centre for Transitional Justice39 provides a more progressive defi nition of transitional justice: ‘Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for the victims and to promote possibilities for peace, reconciliation and democracy […]’.40 Th e focus remains on ‘systematic and widespread’ violations of human rights, but the nature of violations is not defi ned. As such, in theory it does not exclude violations of economic and social rights. Furthermore, the defi nition clearly characterises transitional justice as responsive to past events (as in the previous defi nition) but also as having a positive role in the future with the phrase: ‘promote possibilities for peace, reconciliation and democracy […]’. One could argue that clearly transitional justice must include responding to grave violations of economic and social rights (as well as civil and political rights violations) that have occurred in the past but also that promoting possibilities for peace needs to include measures 37 Ibid 15. 38 Laplante (n 1) 341. 39 Hereinaft er referred to as ICTJ. 40 International Centre for Transitional Justice (n 12). Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 193 to prevent further violations of economic and social rights, including addressing underlying inequality, discrimination and poverty. Boraine has called for a ‘holistic interpretation’ of transitional justice;41 while not detracting from criminal justice, this approach ‘off ers a deeper, richer and broader vision of justice’.42 McEvoy and McGregor also argue for ‘thicker transitional justice’ – a move away from strict legalism to include other aspects of justice necessary for transition to peace.43 Consequently, a broader and more holistic defi nition of transitional justice can be envisaged, which would include traditional mechanisms with a mandate to investigate and seek remedy for grave violations of both economic and social rights and civil and political rights. Th is would bring economic and social rights fi rmly to the foreground of traditional mechanisms and would constitute the fi rst step in the development of a wider and deeper remit for transitional justice. Furthermore, wider and deeper transitional justice should be considered an integral element of peacebuilding. Such transitional justice might encompass measures (some of which may have previously been seen as a concern for peacebuilding) that are less legalistic and look to the future as well as deal with the past. Th ese could include, for example, recommendations for legal reforms and protections such as bills of rights and other constitutional guarantees,44 as well as a rights-based approach to development,45 institutional reform46 and institution building, including the establishment of new institutions to monitor economic and social rights such as a national human rights institution.47 Such an approach to transitional justice has been seen as ‘shift ing the paradigm’ from one of transition to one of transformation (transformative justice).48 Conversely, this wider and deeper approach to transitional justice has been challenged. Waldorf notes that whilst transitional justice is struggling to deliver on its ‘original promises of truth, justice and reconciliation’ more demands are being 41 Boraine (n 8). 42 Ibid 18. 43 K. McEvoy and L. McGregor, (eds), Transitional Justice From Below: Grassroots Activism and the Struggle for Change (Hart 2008). 44 OHCHR (n 1) para.63. 45 McEvoy and McGregor (n 44) 33–37; See also P. De Greiff and R. Duthie (eds), Transitional Justice and Development – Making Connections (Social Science Research Council 2009); R. Mani, ‘Editorial – Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development’ (2008) 2 Th e International Journal of Transitional Justice 253. 46 C. Sandoval Villalba, Transitional Justice: Key Concepts, Processes and Challenges, Institute for Democracy and Confl ict Resolution Briefi ng Paper (IDCR-BP-07/11) (IDCR/University of Essex 2011). See also Offi ce of the High Commissioner for Human Rights, Rule of Law Tools for Post- Confl ict States: Truth Commissions, (United Nations 2006). 47 See A. Cahill-Ripley, From Peace Agreements to Post-Confl ict Reconstruction: Economic and Social Rights and Peacebuilding (forthcoming article, on fi le with author). 48 See Sharp (n 17) 804. See also M. Evans, ‘Land, socio-economic rights and transformative justice’, Paper presented at Land Divided: Land and South African Society in 2013, in Comparative Perspective conference (University of Cape Town, 24–27 March 2013). Amanda Cahill-Ripley 194 Intersentia placed on it.49 Moreover, Mani states that it is diffi cult to see how remedy for such broadly encountered social injustice could be incorporated into ‘targeted’ transitional justice measures.50 Waldorf argues that despite increasing calls for a broadening of the remit for transitional justice, it should be ‘short-term, legalistic and corrective’ and, as such, should focus on gross violations of civil and political rights alone.51 Practical diffi culties, he notes, include infl ating public expectations of transitional justice mechanisms, the existing limited fi nancial capacity of mechanisms and the long-term nature of dealing with economic and social rights violations. However, it is argued that the limited fi nancial capacity of any transitional justice mechanism is relevant to investigation and remedy of any human rights violations whether civil and political rights or economic and social rights. For example, it may take many years for a functioning tribunal to bring war criminals to justice whether they have committed grave violations of civil and political rights or economic and social rights. In terms of fi nancial costs of reparations programmes, a reparations programme for individual victims of torture may cost just as much as communal reparations to provide adequate housing. Th e decision as to how best to limit the capacity and funding of a transitional justice mechanism should be based upon the nature and scope of the violations encountered as well as ‘a careful analysis of the drivers of confl ict’, not on an arbitrary distinction between civil and political rights violations and socio-economic rights violations.52 Questions of time, money and expertise are relevant for all human rights considerations. Further, as Schmid notes, the challenges of competing demands, resource constraints and high expectations are not unique to the inclusion of economic and social rights within transitional justice but are challenges encountered more widely in the entire process of peacebuilding within post-confl ict reconstruction of a State.53 Waldorf argues that the remedy for violations of economic and social rights should be a matter for ‘democratic politics and distributive justice’.54 However, this view of economic and social rights perceives them not as legal entitlements but as social aims or policy goals and supports the view previously presented that such rights have been ignored precisely because they are not conceived of as legal rights. Th is illustrates a fundamental misunderstanding of what economic and social rights are. Economic and social rights cannot be equated with development or broad economic policies. Th ey are discrete and justicable legal entitlements with a legally defi ned scope, normative content and correlative obligations.55 49 Waldorf (n 1) 172. 50 R. Mani (n 45) 255. 51 Waldorf (n 1) 179. 52 Sharp (n 17) 805. 53 Schmid (n 5) 17–18. 54 Waldorf (n 1) 179; Schmid (n 5) 17–18. 55 Th ere are many sources which provide for economic, social and cultural rights within international human rights law, constitutional provisions and national legislation. However, the main Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 195 Moreover, Waldorf ignores the fact that violations of such rights are oft en a result of deliberate violent acts carried out during confl ict seeming to suggest instead that socio-economic rights violations are solely due to poverty and/or inequality. Th is is clearly not the case. Many direct and deliberate violations of economic and social rights take place within confl ict as noted previously. Furthermore, even if certain violations of economic and social rights are a result of inequality and discrimination, this is likely to have been exacerbated by the confl ict and needs to be addressed. Both structural violations of economic and social rights and direct violations of economic and social rights are human rights violations – they are not simply ‘under development’ as suggested. Moreover, he argues that the ‘reduction of longstanding inequality is necessarily post-transitional’56 but it is not clear when the transitional period ends and the post-transitional period begins. If, as Waldorf seems to suggest, inequality is left unchecked whilst in transition, it is diffi cult to see how this would contribute to the goal of justice. Without tackling inequality there can only be partial or limited justice and the seeds of future confl ict remain. As Sharp argues, transitional justice cannot be just and meaningful if a ‘signifi cant portion of the drivers of confl ict and resulting violations of international law are pushed to the side’.57 Waldorf argues that to include economic and social rights within the remit of transitional justice is casting the net too wide.58 However, the argument that diversifying the remit of transitional justice results in a weakening of these mechanisms is not borne out in practice. In fact, the opposite may be true. Carranza argues that the effi cacy of these mechanisms is actually enhanced by the inclusion of economic and social rights as the process is more holistic and with less room for gaps in addressing the needs of the population.59 Another challenge to the inclusion of economic and social rights within transitional processes is the implicit assumption that if we include these rights then we ‘dilute’ the seriousness of grave violations of civil and political rights, that is, by recognising violations of economic and social rights it would somehow diminish the gravity of mass violations and severe crimes such as genocide. Th is assumption may be based on the historical view of economic and social rights as secondary rights of a lesser importance or not real rights, as mentioned previously. It is not suggested, for example, that lack of housing due to confl ict can be equated with genocide. However, starving people to death through deliberate blocking of food aid as seen in Zimbabwe,60 or forced displacement as experienced in Timor-Leste,61 can be as international instrument is the UN International Covenant on Economic, Social and Cultural Rights (adopted 16 Dec 1966, entered into force 3 Jan 1976) 993 UNTS 14531 (ICESCR). 56 Waldorf (n 1) 179. 57 Sharp (n 17) 805. 58 Waldorf (n 1) 179. 59 Carranza (n 18) 322. 60 Rhoda Howard-Hassmann, ‘Mugabe’s Zimbabwe, 2000–2009: Massive Human Rights Violations and the Failure to Protect’ (2010) 32(4) Human Rights Quarterly 898. 61 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Forced Displacement and Famine, National Public Hearing, 28–29 July 2003 (CAVR 2005). Amanda Cahill-Ripley 196 Intersentia severe as crimes against humanity or war crimes of direct violence. Moreover, they may constitute such crimes in and of themselves.62 It is evident therefore that in the fi rst instance transitional justice mechanisms need to recognise that gross violations of human rights include severe and systematic violations of economic and social rights63 and that such bodies establish a mandate for dealing with such violations. In addition, transitional justice mechanisms also need to recognise that some economic and social rights violations may be the result of more structural violence endemic in the State and/or region. 4. EXPERIENCES TO DATE – WHAT CAN WE LEARN FROM PAST PRACTICE? Within academia researchers have begun to explore a broader mandate for transitional justice;64 some authors have considered the role of ‘economic crimes’,65 others the link between transitional justice and development.66 In practice, however, States in transition from confl ict or repression continue to choose criminal prosecutions and truth commissions as the primary methods for seeking justice for human rights abuses.67 Th erefore, the fi rst step to foregrounding economic and social rights within transitional justice is for these violations to be considered as genuine breaches of the relevant law68 and as legitimate concerns for traditional mechanisms, both prosecutorial and restorative. It is therefore important to examine the past practice of both prosecutorial justice mechanisms and restorative justice mechanisms to assess how they have dealt with economic and social rights violations and to draw upon any examples of good practice for future integration of such rights within these processes. 62 See L. van den Herik, ‘Economic, Social and Cultural Rights – International Criminal Law’s Blind Spot’ (2013) Grotius Centre Working Paper 2013/002-ICL (University of Leiden 2013). 63 Offi ce of the High Commissioner for Human Rights, Commission On Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Final report submitted by Mr. Th eo van Boven, Special Rapporteur (2 July 1993) E/CN.4/Sub.2/1993/8 para 12 notes that gross violations of human rights ‘frequently eff ect’ economic, social and cultural rights. 64 I. Muvingi, ‘Sitting on Powder Kegs: Socioeconomic Rights in Transitional Societies’ (2009) 3 International Journal of Transitional Justice 163; Waldorf (n 1); Arbour (n 10). 65 Z. Miller, ‘Eff ects of Indivisibility: In Search of the “Economic” in Transitional Justice’ (2008) 2 International Journal Transitional Justice 266; Carranza (n 18). 66 For example see De Greiff and Duthie (n 45); Mani (n 45); and Laplante (n 29) 141–177. 67 See Editorial (n 7) 1. 68 Whether deemed a crime or a human rights violation under International human rights law, international criminal law, international humanitarian law, refugee law and relevant domestic provisions. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 197 4.1. PROSECUTORIAL FORMS OF JUSTICE AND ECONOMIC AND SOCIAL RIGHTS Th e focus of prosecutorial forms of transitional justice within international law has been on mechanisms based upon the framework of international criminal law.69 Th ese measures usually take the form of an international court such as the International Criminal Court (ICC) or a tribunal set up for a specifi c State / confl ict such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). Although the legal basis for such courts and tribunals includes provisions which can be applied to violations of economic and social rights it is evident that in the majority of these processes there has been little or no consideration of such rights violations as a part of wider gross human rights violations or as crimes in their own right. When considering the law there are clearly international criminal law provisions which could apply to such gross violations of socio-economic rights,70 but very little attention has been given to exploring the potential or limitations of this area of the law to deal with such violations.71 Th e Offi ce of the High Commissioner for Human Rights’ Analytical study on human rights and transitional justice states that ‘International criminal tribunals have investigated and prosecuted cases of violations of economic, social and cultural rights, stating that, the ICTY has recognized that the widespread destruction of homes and property may constitute a crime against humanity’.72 Furthermore, they note the case of Prosecutor v. Kupreskic et al.,73 where the Trial Chamber found that […] attacks on property can constitute persecution. […] comprehensive destruction of homes and property. Such an attack on property in fact constitutes a destruction of the livelihood of a certain population. Th is may have the same inhumane consequences as a forced transfer or deportation. Moreover, the burning of a residential property may oft en be committed with recklessness towards the lives of its inhabitants. Th e Trial Chamber therefore concludes that this act may constitute a gross or blatant denial of fundamental human rights, and, if committed on discriminatory grounds, it may constitute persecution.74 69 In this instance I do not discuss other mechanisms such as national courts established for transitional justice purposes. 70 For example, under the International Criminal Court Rome Statute, Art 8 (2) (b) (xxv) starvation as a weapon of war is a specifi c crime, however to date no one has been indicted on this charge. Other possible provisions include ICC Rome Statute, Article  7 (1) (b) Crime against humanity of extermination; Article  7 (1) (h) Crime against humanity of persecution, Article  8 (2) (a) (iii) War crime of wilfully causing great suff ering; Article  8 (2) (a) (iv) War crime of destruction and appropriation of property; Article 8 (2) (b) (ii) War crime of attacking civilian objects; ICC Rome Statute, Article  6(c) by deliberately infl icting conditions of life calculated to bring about physical destruction. 71 Van den Herik (n 62). 72 Offi ce of the High Commissioner for Human Rights (n 2) para.61. 73 Prosecutor v Kupreskic et al (Judgment) ICTY, IT-95–16-T (14 January 2000) paras 628–631. 74 Ibid para. 631. See also Prosecutor v Stanislav Galić (Judgment) ICTY, IT-98–29-T (5  December 2003) para.42 and Prosecutor v Blaskić (Judgment) ICTY, IT-95–14-T (3 March 2000) where damage Amanda Cahill-Ripley 198 Intersentia However, despite this acknowledgement that economic and social rights violations can constitute crimes under international criminal law, these violations are not explicitly recognised as violations of economic and social rights. Rather, ‘the broad crime defi nitions of persecution and crimes against humanity off er some leeway to “import” socio-economic human rights notions’75 into a criminal law framework. Although this illustrates a positive development in that such violations are explicitly addressed as possible of constituting gross violations of human rights under international criminal law, it remains disappointing that the explicit identifi cation of such crimes as economic and social rights violations remains an omission. As van den Herik notes ‘there is no direct criminalisation of socio-economic rights, but rather a pronounced appreciation of the socio-economic dimensions of crimes’.76 It is also the case that in other trials at the ICTY, despite evidence of severe economic and social rights violations, these acts were relegated to the role of background contextual information for civil and political rights violations as constitutive of international crimes. For example, in Prosecutor v. Dragomir Milošević,77 the Trial Chamber held that the siege of Sarajevo was ‘characterised by a persistent attack or campaign over a period of fourteen months, during which the civilian population was denied regular access to food, water, medicine and other essential supplies, and deprived of its right to leave the city freely at its own will and pace’.78 However, the trial did not note any violations of economic and social rights as an element of either crimes against humanity or unlawful attacks against civilians. More generally, the deliberate starvation of civilians and burning and destruction of homes was widely documented as evidence to form a picture of the wider context in which violations of personal integrity rights took place. Th ese violations of economic and social rights have not been acknowledged as such nor has anyone been indicted for these violations as constituting an element of a crime against humanity or a war crime.79 Likewise, the ICC has not explicitly referred to economic and social rights violations as elements of relevant crimes despite evidence and indictments noting what amounts to severe violations of such rights. For example, in the fi rst warrant to civilian property was seen as an element of an attack on Civilians as a Violation of the Laws or Customs of War as set forth in Article  51 of Additional Protocol I and Article  13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article  3 of the Statute of the Tribunal. 75 Van den Herik (n 62) 8. 76 Ibid. 77 Prosecutor v Dragomir Milošević (Judgment) International Criminal Tribunal for the Former Yugoslavia (ICTY) IT-98–29/1-T (12 December 2007). 78 Ibid para 751. 79 Th ere is no specifi c provision under ICTY for a crime of starvation as weapon of war as there is in the Rome Statute of the International Criminal Court 1998 Art 8 ICC Art 8 (2)(b)xxv. However the defi nition of crimes against humanity could encompass deliberate starvation. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 199 of arrest in Prosecutor v. Omar Hassan Ahmad Al Bashir (Omar Al Bashir),80 the Prosecution submits that GoS (Government of Sudan) forces systematically destroyed the means of survival – including food, shelter, crops, livestock and, in particular, wells and water pumps – of the Fur, Masalit and Zaghawa civilian population in Darfur because “[t]he aim was to ensure that those inhabitants not killed outright would be unable to survive without assistance”.81 In this regard, the Prosecution submits that: Given Darfur’s hostile desert environment and lack of infrastructure, livelihood strategies historically have centred on the village. It is diffi cult to survive outside the communal setting. As an example, ensuring adequate access to water has long been an essential component of livelihood strategies. To facilitate access to water by both humans and animals, many villagers dug communal wells or maintained other communal water sources. Militia/Janjaweed and the Armed Forces repeatedly destroyed, polluted or poisoned these wells so as to deprive the villagers of water needed for survival. In a number of cases, water installations were bombed.82 Th is can clearly be viewed as a severe violation of the rights to food, water and housing as well as constituting elements of crimes against humanity,83 and war crimes.84 Skogly argues that crimes against humanity should include severe violations of economic and social rights.85 Further examples of such economic and social rights violations include deliberate blockage of food aid86 as seen in the 80 Prosecutor v Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) (International Criminal Court Pre- Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05–01/09 (4 March 2009). 81 Th e Prosecution Application, para 175(Footnote in original document). 82 Prosecutor v Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) (International Criminal Court Pre- Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05–01/09 (4 March 2009) para 91. Original footnote omitted. See also para 93.However, it was also noted that ‘there are no reasonable grounds to believe that such a contamination was a core feature of their attacks,’ 32. 83 In particular, Rome Statute of the ICC, Th e Elements of Crimes, (reproduced from the Offi cial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10  September 2002, 6, Article  7(1)(b) Crime against humanity of extermination; Elements ‘1. Th e perpetrator killed one or more persons, including by infl icting conditions of life calculated to bring about the destruction of part of a population,’ directly or indirectly and including through depriving access to food and medicines and Article 7(1)(h) Crime against humanity of persecution, Elements, ‘1. Th e perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.’ 84 Specifi cally Rome Statute of the ICC Article  8(2)(a)(iii) War crime of wilfully causing great suff ering; Article 8(2)(a)(iv) War crime of destruction and appropriation of property (ICC Elements of Crimes page 15); Article  8(2)(b)(ii) War crime of attacking civilian objects (ICC Elements of Crimes, page  18) and Article  8(2)(b)(xxv) War crime of starvation as a method of warfare (ICC Elements of Crimes, page 31). 85 S.I. Skogly, ‘Crimes Against Humanity – Revisited: Is Th ere a Role for Economic and Social Rights?’ (2001) 5(1) Th e International Journal of Human Rights 58, 59. 86 Ibid 69–70. Amanda Cahill-Ripley 200 Intersentia Sudan87 or deliberate State-induced famine as seen in Zimbabwe.88 Th e President of Zimbabwe, Robert Mugabe, deliberately denied international agencies permission to bring food into Zimbabwe to feed the starving. Despite unprecedented food shortages he distributed State-owned grain to his supporters whilst withholding it from opposition supporters.89 Th us, in the period from 2000 to 2009, the policies of the Zimbabwean government can be considered as State-induced famine and as such constitute a crime against humanity under international criminal law.90 Th eir actions can also be viewed as deliberate violations of the right to food, health and housing. Yet, Mugabe has never been indicted for these crimes at the ICC, despite calls for his indictment.91 It is also the case that gross violations of economic and social rights can constitute genocide.92 For example, in the second warrant of arrest Prosecutor v Omar Hassan Ahmad Al Bashir, Bashir has been indicted on the count of genocide by deliberately infl icting conditions of life calculated to bring about physical destruction, within the meaning of article 6(c) of the Statute. Th is includes […] reasonable grounds to believe that in furtherance of the genocidal policy, as part of the GoS’s unlawful attack on the above-mentioned part of the civilian population of Darfur and with knowledge of such attack, GoS forces throughout the Darfur region (i) at times, contaminated the wells and water pumps of the towns and villages primarily inhabited by members of the Fur, Masalit and Zaghawa groups that they attacked.93 Clearly these acts amount to a violation of the right to water as well as the right to life. Th ese examples illustrate the marginalisation of economic and social rights violations within prosecutorial transitional justice mechanisms and more broadly within international criminal law. Van den Herik argues that international criminal law has the potential to capture such large-scale and deliberate socio-economic rights violations but that the ‘rigid legal requirements’ of criminal law results in a marginal role for international criminal processes in addressing such violations. For example, the focus upon commission of acts rather than omission and the strict defi nition of 87 A. de Waal, Famine Crimes: Politics and the Disaster Relief Industry in Africa (Th e International African Institute, in association with James Currey, Oxford and Indiana University Press 1997). 88 Howard-Hassmann (n 60). 89 Ibid 901; 908. 90 Rome Statute of the ICC, Art 7(1)(k). 91 Howard-Hassmann (n 60) 907. 92 Rome Statute of the ICC, Article 6(c) by deliberately infl icting conditions of life calculated to bring about physical destruction. 93 Prosecutor v Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) (Second Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05–01/09 (12  July 2010) 7. See also footnote in original, Physicians for Human Rights, Report, Darfur Assault on Survival, A call for Security, Justice, and Restitution (Anx J44) DAR-OTP-0119–0635 at 0679 which mentions three incidents of destruction of water sources). Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 201 crimes and legality principle of the ICC94 leave ‘less space for direct recourse to human rights in the realm of substantive criminal law’.95 However, despite these diffi culties there are, as illustrated, provisions that can accommodate such violations. It is clear that systematic and large scale abuse of such rights can meet the threshold required to constitute a crime against humanity, war crimes or even genocide. Furthermore, to limit such crimes to violations of civil and political rights ‘is an arbitrary limitation that should be challenged’.96 Violations of economic and social rights that are of a severe nature and can be considered under the relevant international criminal law should be the subject of established prosecutorial mechanisms such as international courts and tribunals, just as gross violations of civil and political rights are. Such international courts and tribunals clearly have the capacity to consider economic and social rights violations within existing international criminal law and international humanitarian law, helping to increase the visibility of socio-economic abuses.97 As Schmid argues, there are no legal obstacles in doing so.98 4.2. RESTORATIVE JUSTICE AND ECONOMIC AND SOCIAL RIGHTS (TRUTH AND RECONCILIATION COMMISSIONS) If violations of economic and social rights do not reach the threshold required by international criminal law to be considered under the above noted provisions there is a need for mechanisms to address violations of a less severe nature. A truth commission, for example, can incorporate within their mandate international human rights standards that do not necessarily require such a high threshold to be reached before violations can be considered. With this in mind it may be that restorative justice mechanisms are more appropriate in certain cases for dealing with economic and social rights violations as they can encompass severe and systematic violations of economic and social rights but also those of a lesser gravity.99 Further, they are not subject to the same strict legal modalities of international criminal law. In terms of assessing and examining previous practice, however, there are few examples of truth commissions who have fully engaged with economic and social rights. As stated above, exceptionally a small number have addressed such rights in a limited and incomplete manner. Accordingly, this paper will focus upon the limited cases where the commission have engaged in some way with economic and social rights or have encountered such rights violations as a signifi cant element of the confl ict. 94 Rome Statute of the ICC, Article 22(2). See also Art 21(3). 95 Van den Herik (n 62) 5. 96 Skogly (n 85) 74. 97 Van den Herik (n 62) 18. 98 E. Schmid, ‘War Crimes Related to Violations of Economic, Social and Cultural Rights’ (2011) 71(3) Heidelberg Journal of International Law 523, 540. 99 Offi ce of the High Commissioner for Human Rights (n 1) para 60. Amanda Cahill-Ripley 202 Intersentia 4.2.1. South Africa Th e South African Truth and Reconciliation Commission is probably the most well- known and researched truth and reconciliation commission in the world. However, very little attention has been given to analysing how it dealt with economic and social rights within the transitional justice process. Th e Commission was limited in its mandate by the defi nition of gross human rights violations provided for in the founding legislation which stated, “gross violation of human rights” means the violation of human rights through – (a) the killing, abduction, torture or severe ill treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command or procurement to commit an act referred to in paragraph (a), which emanated from confl icts of the past and which was committed during the period 1 March 1960 to 10 May 1994 within or outside the Republic, and the commission of which was advised, planned, directed, commanded or ordered, by any person acting with a political motive.100 Th is defi nition limited the attention of the Commission to events which emanated from the confl icts of the past, rather than from the policies of apartheid.101 Whilst it is understandable that the Commission felt it could not undertake responsibility for investigating the entire and extensive aff ects of apartheid, this does not mean that deliberate and gross violations of socio-economic rights could not have been deemed ‘severe ill treatment’ under the existing mandate. Furthermore, the narrow defi nition of human rights violations was not in line with public expectations of the Commission, which was asked to investigate forced evictions and displacement and discrimination in education, work and other economic and social rights violations, especially those faced by women. Th e Commission did hold ‘Institutional and Special Hearings’ relating to inter alia business, the healthcare system and women.102 Th ese hearings noted the structural violence and associated violations as a result of the apartheid system. However, it is disappointing that in its fi nal report the Commission noted that ‘these issues formed part of the broader context within which the specifi cally defi ned gross human rights violations had taken place’.103 Th us, economic and social rights violations were positioned fi rmly in the background, as contextual information. 100 (South Africa) Promotion Of National Unity And Reconciliation Act 34 of 1995, section 1(1)(ix) [defi nition of ‘gross violation of human rights’ amended by s. 21 (a) of act 104 of 1996]. See also South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report 1998, Vol.1 Chapter 4, Defi ning Gross Violations Of Human Rights (South African Truth and Reconciliation Commission 1998) 70–78, paras 82–90. 101 South African Truth and Reconciliation Commission (n 32) para 48. 102 South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report 1998, Vol. 4 Institutional and Special Hearings (South African Truth and Reconciliation Commission 1998). 103 South African Truth and Reconciliation Commission (n 32) paras 48 and 49. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 203 Individuals who were a subject of these violations were excluded from recognition as victims and from reparations.104 4.2.2. Liberia Th e Republic of Liberia Truth and Reconciliation Commission had a broad mandate to address all gross violations of human rights, including an explicit reference to economic and social rights but this was qualifi ed by a statement linking these violations to ‘economic crimes’.105 Although the Commission recognised that such violations were a major root cause of the confl ict, noting that poverty, corruption, limited access to education, economic, social, civil and political inequalities and land tenure and distribution, were all contributing factors,106 the Commission failed to translate this recognition of economic and social rights violations into a primary concern for the truth and reconciliation commission. As Schmid notes there is a signifi cant gap between the fi ndings of the Commission in relation to the causes of confl ict and the legal analysis of abuses committed.107 Th e focus instead was on economic crimes – that is on crimes related to corruption that had economic impacts rather than on a rights- based analysis of violations. Th is raises the issue of the diff erences between economic and social rights violations and the concept of economic crimes. In some cases they have been treated as synonymous with one another, however, it is argued that this is not the case. Sharp refers to the concept of ‘economic violence’ but acknowledges that this is a broader concept than purely violations of economic and social rights also including corruption and plunder of natural resources within the defi nition.108 Although the latter have also been sidelined within transitional justice it is important to diff erentiate between economic and social rights violations under international law and the wider crimes which can lead to such violations.109 4.2.3. Sierra Leone Similarly, the Sierra Leone Truth and Reconciliation Commission had a mandate to consider ‘Violations of economic, social and cultural rights as well as of civil and 104 Ibid. 105 Republic Of Liberia Truth and Reconciliation Commission, Final Report Volume One Preliminary Findings and Determinations (Th e Truth and Reconciliation Commission of Liberia 2008) Section ii, 23. 106 Ibid 4, note.2. For the Commission’s defi nition of economic crimes and further discussion see Republic Of Liberia Truth and Reconciliation Commission Final Report Volume Th ree: Appendices, Title III: Economic Crimes and the Confl ict, Exploitation and Abuse (Th e Truth and Reconciliation Commission of Liberia 2009) 2, para 8. 107 Schmid (n 5) 6. 108 Sharp (n 17) 782. 109 Ibid 785. Further research is required on the relationship between economic crimes such as corruption and ESR. Notable publications include Carranza (n 18); and Schmid (n 5) 19. Amanda Cahill-Ripley 204 Intersentia political rights, as well as other categories of rights such as the right to development and the right to peace’.110 Th e report acknowledges that, In any event, human rights violations and abuses will oft en have both civil or political, and economic, social and cultural dimensions. […] Indeed, although wartime atrocities usually involve the “core” human rights, like the right to life and the protection against cruel and inhuman treatment, the confl ict in Sierra Leone may also have involved, and have been caused by, “violations of such economic and social rights as the right to food, to housing and to medical care”.111 In the resulting investigation, the Commission did investigate and report on aspects of economic and social rights such as education and health especially in relation to children112 and women. In a move to be commended it held a special hearing for women and girls. Th e Commission found that women bore the brunt of economic and social rights violations such as destruction of property, forced evictions and displacement,113 but the legal analysis never explicitly framed these abuses as human rights violations (right to housing, food and water for example). In terms of reparations, the programme was necessarily limited due to resources. Th e priority entitlement was defi ned not by the type of violations suff ered but by identifying the most vulnerable.114 As such, the Commission prioritised reparations for widows, children and in the areas of health, education, pensions and community reparations.115 Despite the fact that the reparations programme did address some issues which remedied economic and social rights violations116 these reparations were not recognised as remedies for violations of such rights and therefore were not framed as legal entitlements. Rather, these issues were addressed because they were deemed important policy issues and priorities for the identifi ed vulnerable groups. In sum, the above cases of Liberia and Sierra Leone illustrate that even if economic and social rights are explicitly provided for in the mandate and acknowledged as a causal factor of the confl ict, it does not necessarily follow that truth and reconciliation 110 Sierra Leone Truth and Reconciliation Commission, Witness to Truth – Report of the Sierra Leone Truth and Reconciliation Commission Vol. 1 (Sierra Leone Truth And Reconciliation Commission 2004) 38, para 54. 111 Ibid para 52. 112 See Sierra Leone Truth and Reconciliation Commission Witness to Truth – Report of the Sierra Leone Truth and Reconciliation Commission Vol. 2, Chapter 2 Findings (Sierra Leone Truth And Reconciliation Commission 2004) para 489; para 490. 113 Sierra Leone Truth and Reconciliation Commission, Witness to Truth – Report of the Sierra Leone Truth and Reconciliation Commission Vol.3B, Chapter Th ree Women and the Armed Confl ict in Sierra Leone (Sierra Leone Truth And Reconciliation Commission 2004) 185, para 386; See also Vol.2, Chapter 2 Findings: Women, para 497; para 499. 114 Sierra Leone Truth and Reconciliation Commission (n 112) para 57. 115 Ibid paras 84 and 85. 116 Such as lack of access to land; training and education; See Sierra Leone Truth and Reconciliation Commission (n 112) para 499; (n 113) 185 para 499. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 205 commissions will apply a rights based framework to such violations or highlight them as a priority for the said commission. 4.2.4. Timor – Leste (East Timor) In the case of Th e Commission for Reception, Truth and Reconciliation in Timor- Leste, (CAVR) the commission also acknowledged and investigated violations of economic and social rights violations. Th e Commission’s mandate stated that they would enquire into ‘Violations of a broad range of human rights standards’ including rights and freedoms within, inter alia, the UN International Covenant on Economic, Social and Cultural Rights 1966.117 Th e CAVR was also important in that it highlighted and recognised within its mandate the interdependence of rights.118 For example, a disappearance constitutes a violation not only of personal integrity rights (civil and political rights) but also where a family was economically dependent on the disappeared person may violate economic and social rights such as the right to an adequate standard of living.119 Th e Commission chose to focus on an examination of the most serious violations of fundamental rights and focused in particular on inter alia, ‘Th e range of rights relevant to displacement, resettlement and famine (the right to food, freedom from hunger, water and adequate housing, freedom of movement, freedom to choose a residence)’120 and ‘Social and economic rights’.121 Th e result was an in-depth report detailing extensive violations in relation to the rights to food, water, health, housing and education.122 Th e deliberate policy of forced displacement led to famine, ‘hunger and deprivation of the means of making a livelihood through the destruction of or 117 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR) (Commission for Reception, Truth and Reconciliation 31 October 2005) Part 2 – Th e Mandate of the Commission, 4, para 15. Other sources used include international human rights law but also international criminal law (such as crimes against humanity Art 7(2)(b) Rome Statute on extermination through deprivation of food) and international humanitarian law (for example, starvation as a weapon of war under grave breaches of the laws of war), as well as national law (for example, poisoning of water sources under Indonesian law). 118 As did the Sierra Leone Truth and Reconciliation Commission: See Sierra Leone Truth and Reconciliation Commission (n 110) 37–38. 119 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n117) para 84, page 18. See also the Offi ce of the United Nations High Commissioner for Human Rights, Fact Sheet 6/Rev.3, Enforced or Involuntary Disappearances, Geneva: United Nations, July 2009, 3–4. 120 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 117) para 16 (3). 121 Ibid para 16 (11). See also paras 86–88, page19 and paras 128–132, pages 26–27. 122 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), Section 7.3 Forced Displacement and Famine (Commission for Reception, Truth and Reconciliation 31 October 2005). See also CAVR, Forced Displacement and Famine, National Public Hearing, 28–29 July 2003, CAVR, 2005. Amanda Cahill-Ripley 206 Intersentia loss of access to food crops, livestock, housing, agricultural implements and land’.123 For others it resulted in death. In its detailed report on the fi ndings in relation to famine and displacement124 the Commission found that, Death was caused by famine, famine-related diseases, vulnerability to sickness from hunger, fear or exhaustion and a lack of access to medical care. It is likely that more people died from the eff ects of displacement than from any other violation, while the actual number of deaths is incalculable.125 Unfortunately, despite the severe, systematic and extensive nature of these socio-economic rights violations they were not remedied under the reparations programme. Rather, the CAVR felt it had pushed the scope of its mandate as far as was possible in the circumstances and stopped short of seeking remedy for these violations, due to the ‘principles of feasibility and prioritisation based on need’.126 Th e result was a reparations programme focused upon and limited to victims of torture, people with mental and physical disabilities and victims of sexual violence.127 However, the reparations programme also identifi ed recipients on the basis of vulnerability. Th erefore widows and children were targeted. Th is also meant that for some victims of economic and social rights violations reparations of some kind were given.128 Th e approach though was not one which prioritised victims of economic and social rights violations. Many people who had been made homeless, had suff ered starvation, malnutrition and a lack of education were excluded from the programme. What is signifi cant about the transitional justice process in this case was the explicit human rights framework applied to the economic and social rights violations. In this process these rights violations were framed as such and reference was made to international human rights law. Consequently, socio-economic rights violations were brought in some way to the foreground of transitional justice concerns, although ultimately they were not treated on an equal footing with violations of civil and political rights. Despite an explicit and specifi c mandate to investigate economic and social rights violations, priority was given in the end to reparations for civil and political rights violations. Of course there are many reasons why this might have been 123 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 122) Section 7.3.7, para 503(5). 124 Ibid. 125 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 122) para 503(4). 126 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), Recommendations Part 11, 12.6 Guiding principles for a reparations programme in Timor-Leste (Commission for Reception, Truth and Reconciliation 31 October 2005) 39–41. 127 Ibid. 128 Reparations can take many forms. In this case for example, school fees were paid, access to rehabilitation and healthcare was given as well as skills training for women. See Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 126) 12.12 Methods, pages 43–45. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 207 the case, not least the capacity of the CAVR to act and enforce any reparations for such rights violations. However, as Sharp notes, this served to promote a ‘hierarchy of rights’ and granted de facto impunity to those responsible for ‘economic violence’.129 On a positive note though, the experiences of the CAVR represent a clear development in mandate of a truth and reconciliation process regarding investigation and reporting of fi ndings of economic and social rights violations. Overall, the evidence illustrates that truth and reconciliation commissions have the potential to address both direct grave violations of economic and social rights and more structural ongoing violations of these rights, if they are brought to the foreground of the mandate and crucially the focus remains throughout the process. Th ere is a need to build upon the past experiences to date. If we look at the experience of South Africa today it is evident that the legacy of structural injustice still exists. Racial and social divisions remain (although not legally sanctioned), for instance in healthcare, education and housing.130 Th is situation remains despite the enshrinement of economic and social rights in the South African Constitution and substantial jurisprudence concerning socio-economic rights within the constitutional court. An interesting and important question to ask is if violations of economic and social rights had been brought to the foreground of the SATRC, then would the outcome and the impact upon long-term peace and reconciliation in South Africa have been any diff erent? Th e experience of the CAVR in Timor-Leste is arguably a more positive development in terms of the recognition of economic and social rights violations as genuine crimes with legal standing which can be investigated and examined within the main body of work of a truth commission and with eff ective fi ndings. Th e CAVR process marks the beginning of foregrounding of such rights, even if not seen through to specifi c remedy or reparations. It signifi es a move away from economic and social rights violations as background or contextual information. As such, the work of the CAVR is to be commended and built upon for the future as an example of good practice. In addition, the specialised hearings of the SATRC and the Sierra Leone Truth and Reconciliation Commission are useful in drawing attention to the structural injustices and endemic economic and social rights violations within a regime. Both these methods (and a combination of the two) are markedly useful in documenting evidence of economic and social rights violations during confl ict and transition. 129 Sharp (n 17) 795. 130 Although black people are ‘free’ to access all services and goods that white people are, economically and socially black people remain marginalised. Race and class remain inextricably linked. See Wale. K, Confronting Exclusion: Time for Radical Reconciliation, SA Reconciliation Barometer Survey: 2013 Report (Institute for Justice and Reconciliation 2013) 7; Bertelsmann Stift ung, BTI 2014 – South Africa Country Report (Gütersloh: Bertelsmann Stift ung 2014) 14, 23. Amanda Cahill-Ripley 208 Intersentia 5. HOW TO MOVE FORWARD – DEVELOPING TRANSITIONAL JUSTICE AND ADDRESSING REMAINING CHALLENGES One of the most diffi cult challenges facing incorporation of economic and social rights within transitional justice mechanisms is how to design and implement a meaningful and eff ective reparations programme and the wider question of what should be considered remedy. Is the right to be heard remedy enough? As noted above reparations for violations of socio-economic rights have been lacking, even where transitional justice mechanisms have engaged with such violations as a part of their mandate. Th e question of reparations goes beyond the remit of this article. Suffi ce to say that further research is required in this area to explore the nature and form of reparations for economic and social rights violations, including the notion of community rather than individual reparations; non-fi nancial reparations and the relationship between community reparations and the right to development.131 A second and related challenge is which transitional justice mechanism to choose and how to delineate boundaries for the scope of the investigation into economic and social rights violations. Of course the choice of mechanism and scope of investigation will be partly subjective to each transition in question and the drivers of that particular confl ict, but these choices have implications for the consideration (or not) of such rights violations. Th e choice of mechanism could limit the extent to which economic and social rights violations are a part of the mandate. Th e choice of mechanism is also signifi cant in relation to the needs of the local population and grassroots demands for justice (and peace and reconciliation). Local communities oft en feel that international and legalistic transitional justice mechanisms result in their exclusion or marginalisation from the process.132 International eff orts are oft en led by the agenda of external actors rather than by local priorities for justice. An interesting example of local demands for transitional justice in relation to violations of economic and social rights can be seen in Colombia, where local communities have called for a reparations programme to specifi cally address economic and social rights 131 L. Magarrell, Reparations in Th eory and Practice, Reparative Justice Series (International Center for Transitional Justice 2007) at <http://ictransitionaljustice.org/sites/default/fi les/ICTJ-Global- Reparations-Practice-2007-English.pdf>; Lisa Laplante (n 29); C. Sandoval Villalba, for Redress, Rehabilitation As A Form Of Reparation Under International Law (Th e Redress Trust 2009); L. McGregor and C. Sandoval Villalba (eds) Th e Law and Practice of Reparations as a form of Rehabilitation (forthcoming 2014); Naomi Roht-Arriaza, Reparations and Economic, Social, and Cultural Rights (16 November 2012) available at SSRN: <http://ssrn.com/abstract=2177024>; Th eo van Boven, Th e United Nations Basic Principles And Guidelines On Th e Right To A Remedy And Reparation For Victims Of Gross Violations Of International Human Rights Law And Serious Violations Of International Humanitarian Law (16 Dec 2005) (United Nations Audio Visual Library 2010) at <http://untreaty.un.org/cod/avl/pdf/ha/ga_60–147/ga_60–147_e.pdf> (last accessed 17 June 2013). 132 McEvoy and McGregor (n 43). Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 209 violations including the right to social services and land restitution.133 One argument for the inclusion of economic and social rights within transitional justice is therefore, ‘where it refl ects the needs and priorities of victims’.134 When establishing the parameters for economic and social rights violations that will be considered as part of the transitional justice process, the question is how does one diff erentiate between violations that pre-dated the confl ict and those that are a consequence of the confl ict? As noted, it is questionable that this is even possible or desirable but certainly direct and deliberate grave violations of economic and social rights must be considered. Where possible, existing structural violence in the form of socio-economic violations should also be identifi ed and addressed, especially where these violations are root causes of confl ict. As Carranza notes ‘gains could be unmade if the conditions that led to or aggravated repression and confl ict are left to fester, allowing repression to re-emerge and confl ict to reoccur’.135 Another priority is to recognise the need for inclusion of economic and social rights in order to address violations suff ered by women during confl ict and transition. Th e lack of engagement with economic and social rights violations continues to have negative repercussions for the understanding of the abuses suff ered by women and girls during confl ict, as well as underestimating the prevalence of economic and social rights violations encountered during confl ict. To illustrate, the SATRC recognised and admitted that their limited defi nition of gross human rights violations ‘resulted in a blindness to the types of abuse predominantly experienced by women’.136 Commonly women and children are disproportionately aff ected by violations of socio-economic rights both in peacetime and confl ict and as such transitional justice mechanisms need to account for these rights violations if they are to suffi ciently address justice for women. Moreover, this neglect of the experiences of women and other vulnerable groups could result in the transitional justice process actually reasserting the subordination of disadvantaged groups that existed before and during the confl ict. Th e chosen mechanisms are at risk of echoing previously unjust distributions of economic and social rights, for example, where property and land is vested in men, and consolidating pre-existing inequalities ‘at personal, social and structural levels’.137 Where transitional justice procedures do make special provision for women, such as the special hearings in South Africa and Sierra Leone, the focus tends to be solely on sexual violence rather than on economic and social rights violations aff ecting 133 N. Summers, ‘Colombia’s Victims’ Law: Transitional Justice in a Time of Violent Confl ict?’ (2012) 25 Harvard Human Rights Journal 220; C. Diaz, ‘Challenging Impunity from Below: Th e Contested Ownership of Transitional Justice in Colombia’ in McEvoy and McGregor (n 43) 189–215. 134 Waldorf (n 1) 175. See also Carranza (n 18) 322. 135 Carranza (n 18) 329. 136 South African Truth and Reconciliation Commission (n 102) 318 and para 144. 137 E. Stanley, ‘Th e Political Economy of Transitional Justice in Timor-Leste’, in McEvoy and McGregor (n 40) 167–187, 185. Amanda Cahill-Ripley 210 Intersentia women. Hearing the accounts of all types of violations endured by women would result in a more truthful account of confl ict and reveal underlying gender dimensions of confl icts.138 Th erefore the inclusion of economic and social rights concerns within transitional justice mechanisms will also contribute to a more holistic and inclusive transitional justice process. Moreover, women are commonly aff ected by land issues during transitions. For example, they are oft en excluded from owning land under local custom, which impacts upon their ability to seek restitution following displacement.139 Transitional justice mechanisms have not adequately considered how to deal with violations related to land, such as displacement and destruction of property, resulting in violations of the rights to food, health, water, housing and work and in the worst cases loss of life.140 Th e issue of land sits at the intersection between economic and social rights, civil and political rights, international criminal law, international humanitarian law and local custom and domestic law. As such, further research, both theoretical and empirical, is required as to how best to address land issues in transition.141 As a further issue to explore, an examination and further discussion of how to address violations of economic and social rights both within transitional justice mechanisms but also in relation to wider peacebuilding is required. Th is will necessarily entail examining the broader idea of transitional justice. Where do the boundaries lie between transitional justice and peacebuilding?142 Certainly, transitional justice is oft en perceived as a pillar or component of peacebuilding and  post-confl ict reconciliation.143 What are the aims of transitional justice and should a shift from transitional justice to an inclusive process of transformative 138 Schmid (n 5) 6 and 16. Further reading on transitional justice and gender see S. Buckly-Zistel and R. Stanley, Gender in Transitional Justice (Palgrave Macmillan 2012); E. Zinsstag and M. Fineman (Eds), Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative Forms of Justice (Series on Transitional Justice, Intersentia 2013); C. O’Rourke, Gender Politics in Transitional Justice (Routledge 2013). 139 L. Hovil, ‘Th e Nexus between Displacement and Transitional Justice: A Gender-Justice Dimension’ in R. Duthie (ed), Transitional Justice and Displacement (International Center for Transitional Justice/Social Science Research Council 2012) 329, 348. 140 As previously noted the Commission for Reception, Truth and Reconciliation in Timor-Leste, experience is a good starting point regarding land and displacement and ESR. 141 Recent articles which examine land and transitional justice include, M. Evans, ‘Land, socio- economic rights and transformative justice’ Paper presented at Land Divided: Land and South African Society in 2013, in Comparative Perspective conference, University of Cape Town, 24– 27 March 2013; O. Zenker, Land Restitution and Transitional Justice in Post-Apartheid South Africa, Max Planck Institute for Social Anthropology Working Paper No.134 (Max Planck Institute for Social Anthropology 2011). 142 Th ere is a question as to whether there is a way to distinguish between economic and social rights violations that should be considered as an element of transitional justice as opposed to being a concern for post-confl ict reconstruction. See T. Pasipanodya, ‘A Deeper Justice: Economic and Social Justice as Transitional Justice in Nepal’ (2008) 2 International Journal of Transitional Justice 378, 390. 143 Schmid (n 5) 8; Laplante (n 1) 347; van Zyl in Laplante (n 1) 333 note 11; Sharp (n 17) 781. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 211 justice be considered? Whether transitional justice and peacebuilding is viewed as part of the same process or as parallel developments, it is clear that there is potential for impact stemming from the decisions of transitional justice bodies, in terms of remedy and reparations for violations of economic and social rights, upon the future realisation and enjoyment of these rights at both a legal and practical level. Experiences in Liberia, Nepal and Timor-Leste all support the thesis that transitional justice and peacebuilding need to be elements of an integral process. If a peace agreement and/or constitution incorporates economic and social rights144 then the transitional justice mechanisms that follow need to consider economic and social rights and the transitional justice body in turn can make recommendations that then seek to promote a framework for the realisation of these rights (both legal and structural). Without this continuity – if all the processes are seen as separate entities then gaps in eff ectiveness will continue. Of course, it does not necessarily follow that one step will follow from the next. For example, in the case of Nepal, despite adopting a peace agreement with a deep commitment to address economic and social rights145 there has been no explicit inclusion to date of these rights in the transitional justice mechanisms set up by the Nepalese government.146 Conversely, the recommendations of the Liberian Truth and Reconciliation Commission did call for reform of public institutions to promote good governance and human rights; to reduce poverty; to alleviate illiteracy and to provide equal access to public services.147 Although they did not address economic and social rights violations within a human rights framework, these recommendations should have a positive impact upon the enjoyment of these rights in the future. Th ese cases illustrate that the process needs to be looked at as a whole to ensure the optimal protection of economic and social rights. 6. CONCLUDING REMARKS Both prosecutorial justice and restorative justice mechanisms have failed to include economic and social rights as a core concern. As noted, this is in part due to the focus within transitional justice on criminal justice, the historical discourse on the nature of economic and social rights themselves and the non-justiciability arguments regarding them. It is evident that there is a need to redefi ne ideas of 144 Th e OHCHR note that ‘Constitutions and peace agreements off er further entry points for enshrining protections for economic, social and cultural rights in post-confl ict societies’ (OHCHR (n 1) para 63). 145 See the Comprehensive Peace Agreement concluded between the Government of Nepal and the Communist Party of Nepal (Maoist), November 21, 2006, sections 7.1.2 and 7.5 Economic and Social Rights including the right to food, health, education, social security. See also Th e Interim Constitution of Nepal, 2063 (2007). 146 Pasipanodya (n 142) 392; Schmid (n 5) 12. 147 Republic Of Liberia Truth And Reconciliation Commission (n 105) 11–12. Amanda Cahill-Ripley 212 Intersentia transitional justice to include a broader conception of justice, which includes both criminal justice and wider social justice. Th e inclusion of economic and social rights resulting in a more holistic process should make transitional justice mechanisms more eff ective to the needs of the people. ‘Demands for truth’ must also include the truth regarding past and existing violations of socio-economic rights. Evidently by bringing such rights violations to the foreground of a truth and reconciliation commission process rather than relegating economic and social rights violations to contextual or background information results in a more ‘truthful’ account of the confl ict and therefore more eff ective justice, truth and reconciliation. Moreover, transitional justice bodies need to hold those responsible for violations of economic and social rights to account just as it does for violations of civil and political rights. Th is will include seeking remedy for direct and deliberate acts of violence which violate economic and social rights but also seeking remedy where appropriate for more structural endemic violations which are a result of the ongoing confl ict and/or those that act as confl ict triggers.148 Furthermore, as Schmid notes ‘incorporating economic and social rights violations makes the rhetoric of the indivisibility and interdependence of rights a reality’.149 Th e following proposals formulate a minimum starting point for the development of a transitional justice process which addresses economic and social rights violations. In the fi rst instance, the body appointed to deal with transitional justice in a particular State should include members with expertise in the area of economic and social rights. Th is will improve their capacity to deal with violations of such rights. Furthermore, truth and reconciliation commissions and international courts and tribunals should include within their mandate a defi nition of human rights violations which includes socio-economic rights. Th eir mandate should include a capacity to investigate, examine and remedy these violations, including reparations (of some kind). As noted above, the issue of reparations for economic and social rights violations represents a challenge that requires further research. Moreover, if a State has not ratifi ed international treaties regarding economic and social rights150 the transitional justice body should recommend that they do so. Furthermore, the bodies should also consider recommendations for wider peacebuilding measures that could assist in the remedy and further protection of economic and social rights, both normative legal measures and practical measures for implementation of such rights. Finally, those involved in transitional justice both practice based and academic researchers should seek to 148 P. Gready, Th e Era of Transitional Justice – Th e Aft ermath of the Truth and Reconciliation Commission in South Africa and Beyond (Routledge GlassHouse 2011) 215. 149 Schmid (n 5) 19. 150 Inter alia, UN International Covenant on Economic, Social and Cultural Rights (n 53) and Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10  December 2008, entered into force 5  May 2013) A/63/435; C.N.869.2009.TREATIES-34 of 11 December 2009. Foregrounding Socio-Economic Rights in Transitional Justice Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 213 gather evidence of best practice and to undertake further research on all aspects of economic and social rights, transitional justice and wider peacebuilding.151 If violations of economic and social rights continue to be omitted from or pushed to the background of transitional justice mechanisms, transitional justice cannot and will not be truly eff ective. Progress can be made if those working in the fi eld begin by accepting the premise that if the aim of transitional justice is to achieve justice for human rights violations as an element of sustainable peace, there is a need to address grave and deliberate violations of both economic and social rights and civil and political rights.152 Th ere is also a need to address where possible violations of economic and social rights which are systematic and structural.153 As a starting point it is evident that for transitional justice to be eff ective it needs to take into account any violations of economic and social rights that are prevalent during the time period established by the transitional justice mechanism as within their mandate. Moreover, it is important to note that the wider process of peacebuilding will also need to address these structural violations if peace is to be achieved. Human rights cannot make people trust one another or even like one another – this is the process of reconciliation. However, human rights can set minimum standards of humanity to follow in societies that are in transition from confl ict and repression to peace – protections to ensure people feel secure and safe and to allow them that security to start the process of reconciliation. Holding to account those who are responsible for grave violations of economic and social rights and realising these rights as a part of transitional justice and wider peacebuilding are therefore essential to any eff ective reconciliation process. Transitional justice should be concerned with aiding transition from violence to peace not solely through criminal justice but also through realisation of substantive social justice. Ultimately, there is a need to foreground violations of economic and social rights within transitional justice. Only then can it be truly eff ective. 151 For example further comparative analysis could be undertaken looking at the practice of truth commissions with regards to economic and social rights. Likewise, further research on the links between economic and social rights, transitional justice and peacebuilding is required. 152 Sharp (n 17) notes that this will include consideration and reorientation of the ‘transition’ in transitional justice from a narrow concern with transition to democracy to a broader concern with transition to positive peace and freedom from structural violence. 153 See UN Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff (9 August 2012) A/HRC/21/46 paras 50–51. 
work_56qftchbkjgdhe3lvvlgw46qgq	----	Cosmopolitism, Global Justice and International Law — Vrije Universiteit Amsterdam Skip to main navigation Skip to search Skip to main content Help & FAQ Home Profiles Research Units Research output Datasets Activities Prizes Press / Media Search by expertise, name or affiliation Cosmopolitism, Global Justice and International Law R. Pierik, W.G. Werner Transnational Legal Studies Boundaries of Law Research output: Contribution to Journal › Article › Academic 162 Downloads (Pure) Overview Original language English Pages (from-to) 679-684 Number of pages 6 Journal Leiden Journal of International law Volume 14 Issue number 4 DOIs https://doi.org/10.1017/s0922156505002955 Publication status Published - 2005 Access to Document 10.1017/s0922156505002955 184901Final published version, 57.6 KB Cite this APA Author BIBTEX Harvard Standard RIS Vancouver Pierik, R., & Werner, W. G. (2005). Cosmopolitism, Global Justice and International Law. Leiden Journal of International law, 14(4), 679-684. https://doi.org/10.1017/s0922156505002955 Pierik, R. ; Werner, W.G. / Cosmopolitism, Global Justice and International Law. In: Leiden Journal of International law. 2005 ; Vol. 14, No. 4. pp. 679-684. @article{740b15e7ac884c30a7cb3722975b4e84, title = "Cosmopolitism, Global Justice and International Law", author = "R. Pierik and W.G. Werner", year = "2005", doi = "10.1017/s0922156505002955", language = "English", volume = "14", pages = "679--684", journal = "Leiden Journal of International law", issn = "0922-1565", publisher = "Cambridge University Press", number = "4", } Pierik, R & Werner, WG 2005, 'Cosmopolitism, Global Justice and International Law', Leiden Journal of International law, vol. 14, no. 4, pp. 679-684. https://doi.org/10.1017/s0922156505002955 Cosmopolitism, Global Justice and International Law. / Pierik, R.; Werner, W.G. In: Leiden Journal of International law, Vol. 14, No. 4, 2005, p. 679-684.Research output: Contribution to Journal › Article › Academic TY - JOUR T1 - Cosmopolitism, Global Justice and International Law AU - Pierik, R. AU - Werner, W.G. PY - 2005 Y1 - 2005 U2 - 10.1017/s0922156505002955 DO - 10.1017/s0922156505002955 M3 - Article VL - 14 SP - 679 EP - 684 JO - Leiden Journal of International law JF - Leiden Journal of International law SN - 0922-1565 IS - 4 ER - Pierik R, Werner WG. Cosmopolitism, Global Justice and International Law. Leiden Journal of International law. 2005;14(4):679-684. https://doi.org/10.1017/s0922156505002955 Powered by Pure, Scopus & Elsevier Fingerprint Engine™ © 2021 Elsevier B.V. We use cookies to help provide and enhance our service and tailor content. By continuing you agree to the use of cookies Log in to Pure Vrije Universiteit Amsterdam data protection policy About web accessibility 
work_5aoaeza53faixdcvpbq4rjzjgu	----	Ageing, Justice, and Resource Allocation Walker, T. (2016). Ageing, Justice, and Resource Allocation. Journal of Medical Ethics, 42(6), 348-352. https://doi.org/10.1136/medethics-2016-103563 Published in: Journal of Medical Ethics Document Version: Peer reviewed version Queen's University Belfast - Research Portal: Link to publication record in Queen's University Belfast Research Portal Publisher rights Copyright 2016 the author. General rights Copyright for the publications made accessible via the Queen's University Belfast Research Portal is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The Research Portal is Queen's institutional repository that provides access to Queen's research output. Every effort has been made to ensure that content in the Research Portal does not infringe any person's rights, or applicable UK laws. If you discover content in the Research Portal that you believe breaches copyright or violates any law, please contact openaccess@qub.ac.uk. Download date:06. Apr. 2021 https://doi.org/10.1136/medethics-2016-103563 https://pure.qub.ac.uk/en/publications/ageing-justice-and-resource-allocation(71ce2e93-011a-477e-a76b-cf54e61c34b6).html 1 Ageing, justice, and resource allocation Abstract Around the world the population is ageing in ways that pose new challenges for health care providers. To date these have mostly been formulated in terms of challenges created by increasing costs, and the focus has been squarely on life prolonging treatments. However, this focus ignores the ways in which many older people require life enhancing treatments to counteract the effects of physical and mental decline. This paper argues that in doing so it misses important aspects of what justice requires when it comes to older people. Introduction In countries across the world an ever larger proportion of the population is living into old age (however we fix the limits of that).[1] The trajectory of an individual’s life in old age varies considerably from person to person.[1, 2] Some people die suddenly after living into old age with very few health problems. Others experience what in the past would have been life shortening illnesses but which can now be treated, even if they nevertheless recur. This can lead to a pattern of treatment and recovery where the recovery nevertheless leaves the patient with a lower level of health than earlier. Another pattern, one that becomes more prevalent as the population ages, is of gradual decline in physical functioning. The individual experiences one or several conditions that whilst not necessarily life threatening require medical treatment or assistance if they are not to adversely affect the quality of life. For these people, as Atul Gawande puts it the end comes as a result of “the accumulating crumbling of one’s bodily 2 systems while medicine carries out its maintenance measures and patch jobs. We reduce the blood pressure here, beat back the osteoarthritis there, control this disease, track that one, replace a failed joint, valve, piston, watch the central processing unit gradually give out. The curve of life becomes a long, slow fade”.[3] One consequence of these patterns of ageing is that as people age, and in particular as they live into old age, they become more likely to develop a range of conditions that cannot be cured but can be managed in a way that helps restore (or at least helps to slow the decline in) functioning – which in turn affects their ability to live their lives in the way they chose. These underlying conditions also mean that some things that can happen at any age (for example, catching influenza, or falling) pose a greater risk of serious harm or death to older people than to those who are younger. In this paper I will argue that these consequences of the different ways in which people age should be taken into account when assessing how to allocate healthcare resources. That is, I will argue that both how people age and the ways in which the chances of becoming ill or suffering severe harm vary with age are relevant for resource allocations decisions if older people are to be treated fairly. Because much of the existing debate on age and resource allocation does not adequately take account of these features, that debate is missing something important. In developing this argument I will be making three assumptions about the context in which these resource allocation decisions are being made. First, the decisions are being made within a healthcare system that provides treatments to people of all ages. Systems of this type are frequently Government funded but they need not be. Second, the resources available to those operating 3 the system are, and will remain, limited. Because of this not every treatment that would benefit patients can be provided. Third, fairness is a key consideration in determining what treatments to fund. In saying this, however, I do not mean to imply that it is necessarily the only consideration. As such, actual resource allocation decisions in practice may need to take into account much more than is considered in this paper. Resource allocation and an ageing population Ageing (and in particular living into very old age) increases the chances of developing a range of conditions (such as deteriorating hearing, osteoporosis, and type 2 diabetes) that cannot be cured but can be managed. To some extent these changes are inevitable. As the World Health Organization put it, “As people age, they experience a gradual accumulation of molecular and cellular damage that results in general decrease in physiological reserves. These broad physiological and homeostatic changes are largely inevitable, although their extent will vary significantly among individuals at any particular chronological age. On top of these underlying changes, exposures to a range of positive and negative environmental influences across the life course can influence the development of other health characteristics, such as physiological risk factors (for example, high blood pressure), diseases, injuries and broader geriatric syndromes.” [4] These conditions are not always life threatening if untreated, but can have significant negative impacts on a person’s quality of life unless interventions take place. These interventions may not tackle or reverse the underlying problem – just as glasses do not reverse the physiological changes that lead to deteriorating eyesight – but nevertheless help to maintain 4 functioning.[1,5] It is worth noting that these negative impacts are not necessarily caused simply by problems with the body. If I fall a few times I may be reluctant to go out on my own in case I fall (my confidence having been undermined). If I have bladder problems I may also be less willing to go out if public conveniences are not readily available. In these cases the physical problems I have developed are not the sole cause of the limitations in my life; those limitations are also affected by the social context. As society ages more and more people will develop these kinds of restrictions, but to date the implications of this for resource allocation decisions have not been extensively explored in the medical ethics literature – something that perhaps not surprising given the focus in medical ethics on acute care.[5] This is not to say that there has been no debate about the impacts of ageing on resource allocation. Such debates typically draw on figures showing that on average more is spent per person on older people (over 65) than on younger adults, and that even more per head is spent on what have come to be referred to as the old old (those over 75 or 80).[6,7] As the population ages it is then argued that there will be increasing pressure on health services. One response to this has been to investigate whether age should be used as a factor in prioritizing health care. A variety of arguments – the fair-innings argument [8,9], Daniels’ prudential lifespan argument [10,11,12], and Callahan’s communitarian argument [13,14] – have been put forward to argue that (at least in some cases) the old should have a lower priority for health care. In contrast John Harris has over a number of years stressed that for each person who wants to go on living the ‘rest of our lives’ is something that we value equally – irrespective of how old 5 we are or how long we may have left to live.[9, 15, 16] This leads to what he refers to as an ‘anti-ageist’ argument opposing deprioritizing treatments on the basis of age or expected life expectancy; an argument that denies absolutely the relevance of age as a criterion for whether someone should receive life prolonging treatment. An important feature of all these arguments is that they have only been concerned with treatments that extend life. Given their focus on the value of additional years or a normal lifespan, these arguments are not for the most part well suited to addressing resource allocation problems when it comes to the types of life enhancing treatments that are needed in response to physical or mental decline. Even if we agree, following Harris, that age should not be a criterion for the allocation of life prolonging treatments [9,15,16], and following Simona Giordano that age should not be criterion for the allocation of life enhancing treatments [17], this does not resolve the issue. We still need to determine how to allocate resources between these two where we cannot do both, and because the latter disproportionately affects older people this should be done in a way that does not discriminate unfairly against them. One option here, that is in line with Harris’ own account, is that life prolonging treatments should always have priority over life enhancing treatments (with the exception of treatments for conditions that would otherwise be completely debilitating).[15] In this context, however, this can lead to very counter intuitive results in practice. It would require that we not provide any life enhancing treatments for older people until after we had made sure that all life prolonging treatments that might be needed are available to those who need them – a point that might not in practice be reached (particularly in poorer 6 countries). Whilst Harris also argues that more resources should be allocated to healthcare, and this might seem to provide a way to respond to this point, his argument for increased spending is based on the priority he gives to protecting against threats to life and liberty [15,16] and as such would not extend to cover cases where resources may be needed to enhance quality of life but life is not itself under threat. The problem with such an approach is that it puts all the weight on prolonging life, and none at all on the quality of life. Effectively such an approach treats quality of life as unimportant, at least compared to length of life, when it comes to resource allocation decisions. If we only consider life prolonging treatment then this may not appear to be too much of a problem – it allows Harris to argue (as he does in the case of QALYs) that approaches that would give those whose quality of life is poor lower priority when it comes to life prolonging treatments fail to show everyone equal respect.[9,15,16] But when we turn our attention to the different ways in which health can be affected by ageing such an approach looks problematic. It threatens to leave older people to struggle on with increasing health problems, problems that could be alleviated should we choose to do so, because those problems are not themselves life threatening. Furthermore, people, including older people, are in their own lives willing to take risks with their future lives in order to do the things that are important to them and enhance the quality of their lives.[18,19] Both quality and quantity of life matter to us throughout our lives. A system that prioritises life prolonging treatment in the way just described fails to capture what is important in the lives 7 of the population. This is not an abstract theoretical point as at least to some extent current health care systems priortise in this way – that is, they focus their resources on acute care and curing those things that can be cured.[1,20,21] But as Atul Gawande puts it, “our most cruel failure in how we treat the sick and aged is the failure to recognize that they have priorities beyond merely being safe and living longer”.[22] A system that prioritises living longer above everything else will not reflect what is important to the lives of those the system is there to help. If we want a system that combines consideration of both life-enhancing and life- prolonging considerations, there are two options that have been widely discussed in medical ethics. The first adopts a cost- effectiveness approach that incorporates a measure of both the impact of a treatment on the length of life and its impact on the quality of that life. The most widely discussed option of this type is the quality adjusted life year (QALY).[23] There are however some practical problems in utilizing QALYs in this context. First, the effect of a particular intervention, as already noted, is dependent in part on factors other than the intervention itself – including the social context.[1] As the World Health Organization point out the environment can be a stronger influence on functioning than the underlying physiological changes because “it determines whether at any given level of intrinsic capacity we can ultimately do the things that are important to us.”[24] If that context is one in which older people are viewed as a problem, or as inevitably in decline and unable to do things, medical interventions may not be able to produce as beneficial an effect as they otherwise would. That is, in an ageist society interventions to improve the quality of life of older people by mitigating the impact of physical changes may 8 have compromised effectiveness. However, it would be morally problematic to conclude on that basis that they are not cost effective because the cost of the intervention does not produce as many additional quality adjusted life years as interventions aimed at other sections of the population. To do so would be to hit older people with a double blow – treatments that might improve their condition are not cost effective because they are already living in an unsupportive or discriminatory environment. Second, it is not unusual for older people to have more than one health problem and the solutions to those problems may be multifactorial.[25] Because of this working out the improvement in quality of life for any one intervention can be difficult – a problem that can be exacerbated when some interventions (for example, those that involve people providing care) can be a response to more than one problem. Third, if medical assistance is not provided this does not mean that the older person does not need help – those things that treatment would have enabled her to do may no longer be things that she can do, but these may still be things that have to be done (for example, washing herself, or buying food). Someone has to provide this assistance. That help may not be provided by the healthcare system but it will impact on the question of how much of an improvement in quality of life a medical intervention provides. This effectively can push support out of the healthcare system and onto families and friends. In turn, this raises significant issues about the extent to which it is appropriate to rely on such a system, particularly given its disproportionate effect on women (who fill most of the caring roles). Giving wider social changes this may not be either fair or sustainable.[1] A focus just on the effects of a particular intervention can miss all these wider social questions, and can operate on the assumption that they will continue as before. But that 9 does not necessarily help to ensure that justice is provided for older people in the provision of healthcare resources. An alternative to QALYs is to adopt a whole life course approach along the lines argued for by Norman Daniels.[10,11,12] Daniels argues that age is different from other features such as ethnic group or sex because most of us (if we are fortunate) will pass through different ages – those who are now old were young once, and many of those young now will become old. As such, decisions about spending on health care at different stages of life can be thought of, not in terms of which person will get the treatment or intervention, but in terms of what would be available to each person at different stages of his or her life. Because we are prone to view things from the stage of life we are currently at, Daniels adopts a position that requires that we make a decision independent of that knowledge. In doing so he asks us to consider (in a context in which choices have to be made because not all health care that is needed or wanted can in fact be provided) what we would use our resources to insure against, and how that insurance cover would be linked to the different parts of our lives. Whilst in earlier work this approach was used to argue in favour of prioritizing life prolonging treatments for the young over the old – on the basis that a prudent and rational person would put more into ensuring they live to be old than that they continue to live once they are already old – Daniels more recently has argued that this will only be the case in unusual circumstances.[12] In utilizing such an approach to address the problems we are concerned with in this paper it will be useful to start with a criticism of systems, like QALYs, that 10 value both quality and quantity of life. That we do not always prioritise living longer over everything else in our own lives does not mean, as Harris argues in his criticism of QALYs, that we will necessarily agree to a system that denies us life prolonging treatment to improve someone else’s quality of life (even where we would make that trade off in our own life).[9] But this need not be surprising – I will prefer the option that benefits me, or those close to me, where I have a choice simply because this matters more to me. An approach like that of Norman Daniels’ outlined above is designed to avoid this personal bias. When we think about what we would insure against in a situation where we cannot insure against everything (and do not know what ill health we will experience) it is unlikely that we would choose to ensure that we would have access to life prolonging treatment whenever it is needed and only after that has been done buy insurance that provides cover for chronic conditions or treatments that will mitigate (and help compensate for loss of functioning caused by) things like diabetes, osteoporosis, worn out joints, and loss of hearing or vision. Instead we would try to ensure that there will be support for us if we develop these kinds of condition.[12] If that is what we would each choose then none of us has reasonable grounds to complain if the allocation of healthcare resources reflects this – and note that this applies even if the resulting allocation means that life prolonging treatment is not available when we need it (we were willing to take the chance that it was not available in order to ensure other things were). If this is right then what are the implications for questions of justice when it comes to an ageing population? There are two that are important in the context of this paper. First, as a population ages the proportion of its healthcare 11 resources that go to treatments that enhance the lives of older people should rise faster than the rate of increase of the proportion of older people in the population. If very few people live beyond 65 then the chances of any one of us needing treatment for things like osteoporosis or dementia are low (the chances of us developing these conditions goes up with age and goes up at an increasing rate once we pass 65). Given the low likelihood of needing such treatment it may be rational not to put many resources into ensuring treatment is available should we develop these conditions. Other things that pose more of a risk to our health, including things that pose a risk to our living into old age, may reasonably have higher priority. It may be reasonable to prioritise life prolonging treatments that will help ensure we live into old age, rather than treatments that would enhance the quality of our lives should we develop particular chronic conditions in old age. But as life expectancy goes up things change. As the chance that a person will live beyond 65 increases the chance of them developing the kinds of condition that are the focus of this paper also increases. Furthermore it does so in a way that should make a difference in how we allocate health care resources. If the chances of developing a chronic illness were the same whatever our age then as we live longer the chances of developing it at some point in our lifetime go up (there is a chance that we develop the condition in any one year and so the chances that we develop it in the course of a lifetime goes up the longer we live). If this was the case for all conditions then living longer need not alter the relative distribution of resources between conditions – they all equally become more likely over the course of our lifetime. But this is not the case as we have seen with all conditions. For those conditions that are our focus here the chances of 12 developing them as we live longer goes up not only in absolute terms but also relative to other types of condition. Given this shift a rational and prudent person would change their priorities when thinking about what to insure against. They would give higher priority than before to providing resources to help with the conditions that are more likely to occur in old age. What this means is that as the population ages resources for providing support for the chronic and potentially limiting conditions that are more common among those who are older should take up a larger proportion of those available. What would have been fair and appropriate when life expectancy was lower will no longer be so. Making such shifts in practice runs into institutional inertia and so can be difficult. But a failure to do so leads to a mismatch between the services provided and what justice requires. Those who lose out in this mismatch are those who are older – they are the ones who are treated unfairly by a failure to change. We might argue that in this way a failure to change results in a system that does not provide equal consideration to those who are older adults. It is worth noting in this context that the World Health Organization have reported that around the world “there is low priority within health policy to the challenge of the demographic transition” of ageing populations.[26] On the account developed here justice requires that this change. Second, what fairness requires when it comes to the allocation of healthcare resources – in particular what it requires when it comes to the balance to be struck between life prolonging and life enhancing treatments – cannot be determined by focusing purely on the ways different treatments affect patients’ health. As we have just seen life expectancy affects how this balance should be 13 made. Furthermore, as described earlier, features of the wider social environment are also relevant. For this reason assessments of what fairness requires when it comes to resource allocation need to be rooted in details of the population that is served by the healthcare system. In turn this means that what will count as a fair distribution of healthcare resources will vary depending on the context. A way of splitting resources between life prolonging and life enhancing treatments may be fair when it comes to a particular population, but this does not mean that it would be fair for a different population or even for that same population at a later time. This consequence of taking into account the ways people age places significant limits on what can be said in abstract terms about what a fair healthcare resource allocation system would look like. Adopting Daniels’ prudential lifespan approach does, however, give some guidance about how to go about making an assessment of whether a particular allocation would be fair in any given context. As has already been pointed out this approach requires that decision makers consider what rational and informed individuals would use the limited resources available to insure against, and how that insurance cover would be linked to the different parts of their lives. However, as Daniels has himself argued, there may well be reasonable disagreement among such decision makers, all of whom are well informed, about where to draw the line between different types of treatment, and more broadly between provision of treatment that is life prolonging and that which is life enhancing.[12] As a result, what is needed when making decisions about the distribution of healthcare resources within a healthcare system that serves a particular population is both a means to bring 14 together these different perspectives and a fair procedure for resolving the resulting disagreements. Arguing for, and defending, any such procedures would take us beyond the aims of (and space available in) this paper. My aim has not been to argue that a particular way of distributing resources is fair or unfair. It has instead been to argue that certain types of information – about patterns of ageing, about average life expectancy, about the ways in which the chances of developing certain conditions changes with age – are relevant when it comes to assessing the fairness of resource allocation arrangements, and that these types of information have not been given adequate weight in accounts of the connections between age and resource allocation in healthcare. The relevance of age in some contexts As we have already seen an anti-ageist argument in debates about resource allocation takes it that age should not be a criterion when determining what treatments to give (at least in the case of life prolonging treatments). To use age in this way would, it is argued, fail to show equal consideration and respect for people who are older – that is it would violate what Harris calls the ‘age indifference principle’.[16,17] In this section I want to argue that whatever its merits when it comes to life prolonging treatments (something I will not address here), when it comes to preventative measures this approach is flawed. That is, I will argue that (at least in some cases) allocating interventions using age as a criterion is both wholly consistent with showing equal consideration to older people, and morally required. 15 In order to develop this argument it will be useful to start with an example. In the UK those over 65 are routinely offered vaccinations against influenza, something that is not offered to adults under 65 unless they fall into one of several fairly narrowly defined ‘high risk’ categories.[27] Similarly, in the UK the National Institute for Health and Care Excellence guidelines on falls require doctors to ask patients over 65 about falls in the past year, but they are not required to do this for younger patients (with the exception of patients over 55 who fulfill other set criteria).[28] A potential problem for these kinds of age based policies is that whilst risk (or increased risk) is associated with age, it is not the case that merely being older means that as an individual one has a higher risk of serious harm than all those one is older than. That is, the policies offer steps to prevent serious harm due to infection or falls to some individuals whilst denying it to others, even where at the individual level the latter may be as likely to experience those harms as the former. We might conclude from this that age should not be a factor in determining which interventions to provide – the interventions should be available to all, to none, or only to those who are in fact at higher risk. The problem with this response, however, is that each of these options faces significant challenges. Offering influenza vaccine to all adults, for example, would considerably increase the cost of the vaccination program in a way that does not produce anything like comparable increases in benefit. This may in turn lead to a judgment that vaccination is not cost effective when compared to other kinds of preventative medicine that could be introduced, and thus to this not being a viable option. Not offering the vaccine to anyone however would be to leave a large group, older 16 adults, at risk of serious harm – harm that could have been prevented. This would be the case because they, as a group, are more likely to experience this harm than those who are younger than them. Because the risk is not consistent across the life course, but increases with age, they will lose out. This does not appear to be consistent with fair treatment of older people. It might be thought that this can be avoided by only giving the vaccination to those who are in fact at higher risk – this will include some but not all older people. However, this response assumes that we can draw a line to distinguish what characterizes those at increased risk in a way that is independent of age. This may not in practice be possible when drawing up policy – or at least may not be possible without spending more than the costs of offering the intervention to all above a certain age. The patterns of ageing that can lead to increased risk are of many different types, and it is not clear that there is a way of characterizing them that picks up all those at increased risk of serious harm. That is, there is not necessarily a way of picking out all and only those at increased risk. In that case any policy will draw the line between those who are included and those who are excluded from provision of some intervention in a way that either excludes some at higher risk, or includes some at lower risk. The question is really about how we should go about doing this. A way to address this problem is, as above, to make use of Daniels’ prudential lifespan approach.[10,11,12] The advantage of this approach for our purposes here is that it asks us to consider the ways in which we would want resources to be available across our own lives and excludes knowledge of our own health 17 status. In that context it would appear reasonable to choose to have protection and preventative measures available when the risks are high. If we were to use our resources to provide vaccination against influenza to all adults we will be using resources in a way that provides little expected benefit. In contrast, given the increased risks when older and the knowledge that we are likely to live to those older ages, ensuring that the vaccine is available then would provide greater potential benefits. There may be reasonable differences about what exactly we would agree to in determining what preventative measures would be available at what points in our life (this will in part depend on what else we need to take account of). But for our purposes here we can put this to one side. The point I want to draw out is that using this approach highlights the relevance for healthcare allocation decisions of the ways in which risk varies across the life course. Because the risks are higher when older this means that we should prioritise protection, and preventative measures, for those who are older (along with other high risk groups). In the case of influenza vaccination this would mean we should prioritise vaccinations for those who are older over those who are younger. This does not stem from giving the lives of younger adults lower priority. Instead it stems from the fact that age is associated with increased risk of serious harm. Concluding remarks When it comes to resource allocation decisions I have argued that the increasing chances of becoming ill or losing function as we age matter. The account given may be challenged in its details. But my aim has not been simply to argue for that account, it has been to argue that the focus on age in resource allocation 18 decisions has shone a bright light on some areas, but left others (which are also important) in the dark. The arguments above aim to throw some light on them and are in part a plea for more work in this area. However, before finishing it is important to point out that when we shift from questions about resource allocation to consider interventions with particular patients the focus on a process of decline as one of the patterns of ageing brings with it risks and challenges of its own. This is because when we focus at the group level we are concerned with probabilities, but as highlighted at the start of this paper these group characteristics cover a wide range of different patterns of ageing. A failure to remember that different people age in different ways, and that there are many trajectories that a person can traverse as they age, can at the individual level lead to problematic outcomes (particularly in a culture that is steeped in narratives of ageing as decline). One potential danger here is that healthcare professionals may jump too quickly when an older patient shows signs of confusion (or simply comes to what looks to be a poor decision) to an assessment that he or she lacks capacity.[29] Having said this, the right response to this possibility is not to ignore the increased risks that come with growing older. To do that is to risk failing to provide appropriate care and support where it is in fact needed. We do not, or should not, want doctors and other healthcare professionals to ignore indications of underlying health problems (either physical or psychological). However, it is important that they bear in mind that these are only indicators that something may be wrong, not that something is wrong. This is a potentially tricky balancing act to get right, particularly in a culture in which stereotypes of older people are prevalent. It requires judgment 19 and skill on behalf of the attending healthcare professional because there are two ways in which a healthcare professional can go wrong in this context – failing to recognize and respect the older patient’s autonomy because too much was read into features their behavior or choices, or failing to recognize underlying health problems and hence failing to address them. Either way risks acting in a way that is inconsistent with principles of medical ethics. References 1 World Health Organization. World report on ageing and health. 2015. http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf? ua=1 (accessed December 2015) 2 Lunney J.R., Lynn J., Foley D.J. et al. Patterns of functional decline at the end of life. The Journal of the American Medical Association 2003;289(18):2387-2392 3 Gawande A. Being Mortal: Illness, Medicine and What Matters in the End. London: Profile Books Ltd 2014: 28 4 World Health Organization. World report on ageing and health. 2015. http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf? ua=1 (accessed December 2015) at p.29 5 Silvers A. Judgment and justice: Evaluating health care for chronically ill and disabled patients. In Rhodes R, Francis LP, Silvers A, eds. The Blackwell Guide to Medical Ethics. Oxford: Blackwell Publishing Ltd 2007:354-372 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 20 6 Wanless D. Securing Good Care for Older People: Taking a Long-Term View. London: King’s Fund 2006 7 Casey B, Oxley H, Whitehouse E, et al. Policies for an Ageing Society: Recent Measures and Areas for Further Reform. Paris: OECD 2003 8 Williams A. Intergenerational equity: An exploration of the ‘fair-innings’ argument’. Health Economics 1997;6:117-132 9 Harris J. The Value of Life. Abingdon: Routledge and Kegan Paul 1985: 91-102 10 Daniels N. Am I My Parents’ Keeper. Oxford: Oxford University Press 1988 11 Daniels N. Justice between generations. Journal of Political Theory 2008;16(4):475-494 12 Daniels N. Just Health: Meeting Health Needs Fairly. Cambridge: Cambridge University Press 2008: 161-190 13 Callahan D. Old age and new policy. Journal of the American Medical Association 1989;261(6):905-906 14 Callahan D. Setting Limits, What Kind of Life. New York: Simon and Schuster 1990 21 15 Harris J. QALYfying the value of life. Journal of Medical Ethics 1987;13:117- 123 16 Harris J. The age-indifference principle and equality. Cambridge Quarterly of Healthcare Ethics 2005;14:93-99 17 Giordano S. Respect for equality and the treatment of the elderly: Declarations of human rights and age-based rationing. Cambridge Quarterly of Healthcare Ethics 2005;14:83-92 18 Bowling A, Dieppe P. What is successful ageing and who should define it? BMJ 2005;331(7531):1548-1551 19 Grewal I, Lewis J, Flynn T, et al. Developing attributes for a generic quality of life measure for older people: preferences and capabilities. Social Science and Medicine 2006;62(8):1891-1901 20 Goodwin N, Sonola L, Theil v, et al. Co-ordinated Care for People with Chronic Complex Conditions: Key Lessons and Markers for Success. London: The King’s Fund 2013 21 Smith SM, Soubhi H, Fortin M, et al. Managing patients with multimorbidity: systematic review of interventions in primary care and community settings. BMJ 2012;345:e5205 22 22 Gawande A. Being Mortal: Illness, Medicine and What Matters in the End. London: Profile Books Ltd 2014: 243 23 Williams A. The value of QALYs. Health and Social Service Journal 1985;94(4957suppl):3-5 24 World Health Organization. World report on ageing and health. 2015. http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf? ua=1 (accessed December 2015) at p.30 25 Marengoni A, Angleman S, Mells R, et al. Aging with multimorbidity: A systematic review of the literature. Ageing Research Reviews 2011;10(4):430- 439 26 World Health Organization. World report on ageing and health. 2015. http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf? ua=1 (accessed December 2015) at p.4 27 National Health Service. The NHS Schedule. http://www.nhs.uk/conditions/vaccinations/pages/vaccination-schedule-age- checklist.aspx (accessed December 2015) http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://apps.who.int/iris/bitstream/10665/186463/1/978924094811_eng.pdf?ua=1 http://www.nhs.uk/conditions/vaccinations/pages/vaccination-schedule-age-checklist.aspx http://www.nhs.uk/conditions/vaccinations/pages/vaccination-schedule-age-checklist.aspx 23 28 National Institute for Health and Care Excellence. Falls in older people: assessing risk and prevention. 2013. http://www.nice.org.uk/guidance/cg161 (accessed December 2015) 29 Hughes JC. Ethical issues and health care for older people. In Ashcroft RE, Dawson A, Draper H, et al, eds. Principles of Health Care Ethics Second Edition. Chichester: John Wiley and Sons Ltd 2007: 469-474 http://www.nice.org.uk/guidance/cg161 
work_5c2bmhotdvh2xkj2rlm5ttkkua	----	Restorative Justice: The Real Story Restorative justice: the real story Kathleen Daly School of Criminology and Criminal Justice Mt Gravatt Campus Griffith University Brisbane, Queensland 4111 Australia +61 7 3875-5625 (of); 3875-5608 (fax) 3216-1630 (ho) k.daly@mailbox.gu.edu.au Version Revised 2 May 2001 Paper revised from that presented to the Scottish Criminology Conference, Edinburgh, 21-22 September 2000. [to add more on acknowledgments later] Biographical note: Kathleen Daly is Associate Professor in the School of Criminology and Criminal Justice at Griffith University (Brisbane). Her interests are on gender and race in crime, justice, and criminology, and her current research is on restorative justice. Key words: restorative justice, conferencing, retributive justice, myths about justice 1 Restorative justice: the real story Abstract Advocates' claims about restorative justice contain four myths: (1) restorative justice is the opposite of retributive justice, (2) restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice, (3) restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice' (or masculine) response, and (4) restorative justice can be expected to produce major changes in people. Drawing from research on conferencing in Australia and New Zealand, I show that the 'real story' of restorative justice differs greatly from advocates' mythical 'true story'. Despite what advocates say, there are connections between retribution and restoration (or reparation), restorative justice should not be considered a pre-modern and 'feminine' justice, strong stories of repair and goodwill are uncommon, and the raw material for 'restorativeness' between victims and offenders may be in short supply. Following Engel (1993), myth refers to a true story; its truth deals with 'origins ... with how something came to be'. Origin stories, in turn, 'encode a set of oppositions' such that when telling a true story, speakers transcend adversity. By comparing advocates' true story of restorative justice with the real story, I offer a critical and sympathetic reading of advocates' efforts to move the idea forward. I end by reflecting on whether the political future of restorative justice is better secured by telling the mythical true story or the real story. 2 Restorative justice: the real story INTRODUCTION Much has been written in recent years that damns and sings the praises of restorative justice. In contrast to the voluminous critical and advocacy literatures, there is a thin empirical record of what is happening on the ground. i The aim of this paper is to present the 'real story' of restorative justice, one that reflects what has been learned from research on conferencing ii in Australia and New Zealand. I am being mostly, although not entirely, ironic in proposing to tell the real story of restorative justice. There are many stories and no real one. I shall recount what I have learned on my journey in the field, which began in the early 1990s (Braithwaite and Daly, 1994) and intensified in 1995 when I moved to Australia to work with restorative justice researchers at the Australian National University and to initiate my own program of research. It has taken me some time to understand and make sense of the idea of restorative justice. When I arrived in Australia, my questions centred on what was happening in the conference process. What were victims, offenders, and their supporters saying to each other? How did they relate to one another? What did the professionals (the coordinators and police) think was going on? Did the critiques of conferencing, especially by feminist and anti-racist analysts, have merit? I began to observe conferences in 1995; since then, I have observed close to 60 of them; and as part of a major project on conferencing in South Australia, members of my research group and I observed 89 youth justice conferences and interviewed over 170 young people (offenders) and victims associated with them, in 1998 and again, in 1999 (Daly et al., 1998; Daly, 2001b). The more I observed and talked with those involved, attended professional meetings, and read about restorative justice, the more perplexed I became. I discovered that there was a substantial gap between what I observed in conferences and what both the advocates and 3 critics were saying about restorative justice. This is what moves me to tell the real story, and I do so by analysing four myths that feature in advocates' stories and claims: 1. Restorative justice is the opposite of retributive justice. 2. Restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice. 3. Restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice' (or masculine) response. 4. Restorative justice can be expected to produce major changes in people. Although I focus on advocates' claims, there can be as much distortion by the critics, as well. Moreover, there are debates among the advocates on the meaning and practice of restorative justice; thus, my characterisation of the advocacy position is somewhat of a caricature. I use the concept of myth in two ways. First, myth can be understood simply as a partial truth, a distorted characterisation that requires correction by historical or contemporary evidence. Second, myth can be understood as a special form of narrative. Following Engel (1993: 790-92), myth 'refers not to fantasy or fiction but to a "true story" ... which is sacred, exemplary, significant'. 'The "truth" of myth differs from the "truth" of historical or scientific accounts'. Engel suggests that myths 'differ from other forms of storytelling' in that they 'deal with origins, with birth, with beginnings ... with "how something ... began to be"'. He discovers in his analysis of the 'origin stories' of parents of children with disabilities that they 'perceive the world in terms of a set of oppositions that originate in the diagnosis of their child' (p. 821). A recurring origin story is that the professional (a doctor) is wrong about the initial diagnosis, and 'the parent's insights have ultimately triumphed over those of the professional' (p. 821). As such, when parents retell their stories, 'the triumphant ending will be achieved again'. 'The very act of retelling is a way to ensure that ... values and outcomes in the myth will triumph over pain, opposition, and disorder'. Engel says that this 4 sense of triumph reveals the 'affirmative, creative power of myth', where myth 'abolishes time' and 'the work of myth [transcends adversity]' (pp. 823-24). When I began to write this paper, I used the concept of myth as partial truth, a foil against which I could write a more authoritative story. But as I began to analyse the myths, I began to see them in a different light, in Engel's terms, as origin stories that 'encode a set of oppositions' (p. 822). While I shall spend more analytical time telling the real story of restorative justice, using myth as partial truth, I also offer a sympathetic reading of advocates' true story of restorative justice by viewing myth as a creative device to transcend adversity. I end by reflecting on whether the political future of restorative justice is better secured by telling the real story or the mythical true story. THE PROBLEM OF DEFINITION Restorative justice is not one thing, but an umbrella concept that refers to diverse practices to resolve disputes in schools and workplaces, to respond to crime, and to make decisions in the care and protection or child welfare areas. For juvenile and criminal cases, it is used primarily when people have admitted to an offence; it therefore focuses on the penalty, not fact-finding phase of the adjudication process. Restorative justice can refer to diversion from formal court process, to actions taken in parallel with court decisions, and to meetings between victims and offenders at any stage of the criminal process, including an offender's release from prison. The word is now being applied after the fact to programs and policies that have been in place for some time. The idea of restorative justice has proved to be enormously popular with governments, who now wish to package a range of police responses and correctional programs as 'restorative' (e.g., LaPrairie, 1999 for Canada; Crawford, 2001 for England and Wales). While it is not possible to have a precise definition that covers a diverse array of practices across a range of decision-making sites, both in and outside of 5 institutions of criminal justice, a general definition might be this: those with a stake in a crime (typically a victim, an offender, and their supporters) come together to discuss the offence and its impact, and they decide what to do to 'repair the harm' to the victim and perhaps also to a larger collectivity. McCold (1999/2000) constructed a venn diagram to distinguish practices that he considers to be fully, mostly, or only partly restorative. iii He suggests that fully restorative practices occur at the intersection of the three circles of 'victim reparation', 'offender responsibility', and 'communities of care reconciliation'. At that intersection, there are peace circles (or sentencing circles) and conferences of various types. Outside that intersection are other recent practices (e.g., truth and reconciliation commissions, reparative boards), as well as those that have been around for some time (e.g., youth aid panels and victim services). Using McCold's definition, the research reviewed here and the jurisdictions I have studied use 'fully restorative' practices. MYTHS ABOUT RESTORATIVE JUSTICE Myth 1. Restorative justice is the opposite of retributive justice. When one first dips into the restorative justice literature, the first thing one 'learns' is that restorative justice differs sharply from retributive justice. It is said that  restorative justice focuses on repairing the harm caused by crime, whereas retributive justice focuses on punishing an offence;  restorative justice is characterised by dialogue and negotiation among the parties, whereas retributive justice is characterised by adversarial relations among the parties; and  restorative justice assumes that community members or organisations take a more active role, whereas for retributive justice, 'the community' is represented by the state. 6 Most striking is that all the elements associated with restorative justice are good, whereas all those associated with retributive justice are bad. The retributive-restorative oppositional contrast is not only made by restorative justice advocates, but increasingly one finds it canonised in criminology and juvenile justice textbooks. The question arises, is it right? On empirical and normative grounds, I suggest that in characterising justice aims and practices, it is neither accurate nor defensible. Despite advocates' well-meaning intentions, the contrast is a simple sales pitch to market the superiority of their justice 'products'. To do that, definite boundaries are marked between the good (restorative), the bad (retributive), and the ugly (rehabilitative) types of justice. Advocates seem to assume that an ideal justice system should be of one type only, that it should be pure and not 'contaminated' by or mixed with others. Before demonstrating the problems with this position, I give a sympathetic reading of what I think advocates are trying to say. Mead's (1917-18) "The psychology of punitive justice" contrasts two methods of responding to crime. One he termed 'the attitude of hostility toward the lawbreaker' (p. 227), which 'brings with it the attitudes of retribution, repression, and exclusion" (pp. 226-27) and which sees a lawbreaker as 'enemy'. The other, exemplified in the (then) emerging juvenile court, is the 'reconstructive attitude' (p. 234), which tries to 'understand the causes of social and individual breakdown, to mend ... the defective situation', to determine responsibility 'not to place punishment but to obtain future results' (p. 231). Most restorative justice advocates see the justice world through this Meadian lens; they reject the 'attitude of hostility toward the lawbreaker', do not wish to view him or her as 'enemy', and desire an alternative kind of justice. On that score, I concur, as most readers and researchers no doubt would. However, the 'attitude of hostility' is a caricature of criminal justice, which over the last century and a half has wavered between desires to 'treat' some and 'punish' others, and which surely cannot be encapsulated in the one term, 'retributive justice'. By framing justice aims (or principles) 7 and practices in oppositional terms, restorative justice advocates not only do a disservice to history, they also give a restricted view of the present. They assume that restorative justice practices should exclude elements of retribution; and in rejecting an 'attitude of hostility', they assume that retribution as a justice principle must also be rejected. When observing conferences, I discovered that participants engaged in a flexible incorporation of multiple justice aims, which included:  some elements of retributive justice (that is, censure for past offences),  some elements of rehabilitative justice (for example, by asking, what shall we do to encourage future law-abiding behaviour?) and  some elements of restorative justice (for example, by asking, how can the offender make up for what he or she did to the victim?) When I related these findings to colleagues, one said, 'yes, this is a problem'. This speaker's concern was that as restorative justice was being incorporated into the regular justice system, it would turn out to be a set of 'simple techniques', rather than an 'ideal of justice ... in an ideal of society' (Walgrave, 1995: 240, 245) and that its core values would be lost. Another said (paraphrasing), 'retribution may well be present now in conferences, but you wouldn't want to make the argument that it should be present' (Braithwaite, personal communication). These comments provoked me to consider the relationship between restorative and retributive justice, and the role of punishment in restorative justice, in normative terms. Distilling from other papers (e.g., Daly and Immarigeon, 1998: 32-35; Daly, 2000a, 2000b) and arguments by Duff (1992, 1996, 2001), Hampton (1998), and Zedner (1994), I have come to see that apparently contrary principles of retribution and reparation should be viewed as dependent on one another. Retributive censure should ideally occur before reparative gestures (or a victim's interest or movement to negotiate these) are possible in an ethical or psychological sense. Both censure and reparation may be experienced as 'punishment' by 8 offenders (even if this is not the intent of decision-makers), and both censure and reparation need to occur before a victim or community can 'reintegrate' the offender into the community. These complex and contingent interactions are expressed in varied ways and should not be viewed as having to follow any one fixed sequence. Moreover, one cannot assume that subsequent actions, such as the victim's forgiving the offender or a reconciliation of victim and offender (or others), should occur. In the advocacy literature, however, one finds that there is too quick a move to 'repair the harm', 'heal those injured by crime' or to 're-integrate offenders', passing over a crucial phase of 'holding offenders accountable', which is the retributive part of the process. A major block in communicating ideas about the relationship of retributive to restorative justice is that there is great variability in how people understand and use key terms such as punishment and retribution. Some argue that incarceration and fines are punishments because they are intended deprivations, whereas probation or a reparative measure such as doing work for a crime victim are not punishment because they are intended to be constructive (Wright, 1991). Others define punishment more broadly to include anything that is unpleasant, a burden, or an imposition of some sort; the intentions of the decision-maker are less significant (Duff, 1992, 2001; Davis, 1992). Some use retribution to describe a justification for punishment (i.e., intended to be in proportion to the harm caused), whereas others use it to describe a form of punishment (i.e., intended to be of a type that is harsh or painful). iv On proportionality, restorative justice advocates take different positions: some (e.g., Braithwaite and Pettit, 1990) eschew retributivism, favouring instead a free-ranging consequentialist justification and highly individualised responses, while others wish to limit restorative justice responses to a desert-based, proportionate criteria (Walgrave and Aertsen, 1996; Van Ness, 1993). For the form of punishment, some use retribution in a neutral way to refer to a censuring of harms (e.g., Duff, 1996), whereas most use the term to 9 connote a punitive response, which is associated with emotions of revenge or intentions to inflict pain on wrong-doers (Wright, 1991). I shall not attempt to adjudicate these competing claims; the sources of antagonism lie in varied definitions and the different images these definitions conjure in people's heads about justice relations and practices. However, one way to gain some clarity is to conceptualise punishment, retribution, and punitive (and their "non" counterparts) as separate dimensions, each having its own continuum of meaning, rather than to conflate them, as now typically occurs in the literature. Because the terms 'retributive' and 'restorative' justice have such strong meanings and referents, and are used largely by advocates (and others) as metaphors for the bad and the good justice, perhaps they should be jettisoned in analysing current and future justice practices. Instead, we might refer to 'older' and 'newer' justice forms. These terms do not provide a content to justice principles or practices, but they do offer a way to depict developments in the justice field with an eye to history and with an appreciation that any 'new' justice practice will have many bits of the 'old' in it. v The terms also permit description and explanation of a larger phenomenon, that is, of a profound transformation of justice forms and practices now occurring in most developed societies in the West, and certainly the English-speaking ones of which I am aware. Restorative justice is only a part of that transformation. By the old justice, I refer to modern practices of courthouse justice, which permit no interaction between victim and offender, where legal actors and other experts do the talking and make decisions, and whose (stated) aim is to punish, or at times, reform an offender. By the new justice, vi I refer to a variety of recent practices, which normally bring victims and offenders (and others) together in a process in which both lay and legal actors make decisions, and whose (stated) aim is to repair the harm for victims, offenders, and perhaps other members of 'the community' in ways that matter to them. (While the stated aim of 10 either justice form may be to 'punish the crime' or 'repair the harm', we should expect to see mixed justice aims in participants' justice talk and practices.) vii New justice practices are one of several developments in a larger justice field, which also includes the 'new penology' (Feeley and Simon, 1992) and 'unthinkable punishment policies' (Tonry, 1999). The field is fragmented and moving in contradictory directions (Crawford, 1997; Garland, 1996; O'Malley, 1999; Pratt, 2000). Myth 2. Restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice. A common theme in the restorative justice literature is that this reputedly 'new' justice form is 'really not new' (Consedine, 1995: 12). As Consedine puts it, Biblical justice was restorative. So too was justice in most indigenous cultures. In pre-colonial New Zealand, Maori had a fully integrated system of restorative justice ... It was the traditional philosophy of Pacific nations such as Tonga, Fiji and Samoa. ... In pre-Norman Ireland, restorative justice was interwoven ... with the fabric of daily life ... (p. 12). Braithwaite (1999: 1) argues that restorative justice is 'ground[ed] in traditions of justice from the ancient Arab, Greek, and Roman civilisations that accepted a restorative approach even to homicide'. He continues with a large sweep of human history, citing the 'public assemblies ... of the Germanic peoples', 'Indian Hindu [traditions in] 6000-2000 B.C.', and 'ancient Buddhist, Taoist, and Confucian traditions ...'; and he concludes that 'restorative justice has been the dominant model of criminal justice throughout most of human history for all the world's peoples' (p. 1, emphasis added). What an extraordinary claim! 11 Linked with the claim that restorative justice has been the dominant form of criminal justice throughout human history is the claim that present-day indigenous justice practices fall within the restorative justice rubric. Thus, for example, Consedine (1995: 99) says A new paradigm of justice is operating [in New Zealand], which is very traditional in its philosophy, yet revolutionary in its effects. A restorative philosophy of justice has replaced a retributive one. Ironically, 150 years after the traditional Maori restorative praxis was abolished in Aotearoa, youth justice policy is once again operating from the same philosophy. Reverence for and romanticisation of an indigenous past slides over practices that the modern 'civilised' Western mind would object to, such as a variety of harsh physical (bodily) punishments and banishment. At the same time, the modern Western mind may not be able to grasp how certain 'harsh punishments' have been sensible within the terms of a particular culture. Weitekamp (1999: 93) combines 'ancient forms' of justice practice (as restorative) and indigenous groups' current practices (as restorative) when he says that some of the new[] ... programs are in fact very old. ... [A]ncient forms of restorative justice have been used in [non-state] societies and by early forms of humankind. [F]amily group conferences [and] ... circle hearings [have been used] by indigenous people such as the Aboriginals, the Inuit, and the native Indians of North and South America. ... It is kind of ironic that we have at [the turn of this century] to go back to methods and forms of conflict resolution which were practiced some millennia ago by our ancestors ... I confess to a limited knowledge of justice practices and systems throughout the history of humankind. What I know is confined mainly to the past three centuries and to developments in the United States and several other countries. Thus, in addressing this 12 myth, I do so from a position of ignorance in knowing only a small portion of history. Upon reflection, however, my lack of historical knowledge may not matter. All that is required is the realisation that advocates do not intend to write authoritative histories of justice. Rather, they are constructing 'origin myths' about restorative justice. If the first form of human justice was restorative justice, then advocates can claim a need to recover it from a history of 'takeover' by state-sponsored retributive justice. And, by identifying current indigenous practices as restorative justice, advocates can claim a need to recover these practices from a history of 'takeover' by white colonial powers who instituted retributive justice. Thus, the history of justice practices is re-written by advocates not only to authorise restorative justice as the first human form of justice, but also a form of justice that is congenial to modern-day indigenous and, as we shall see in myth 3, feminist social movements for justice. In the restorative justice field, most commentators focus specifically (and narrowly) on changes that occurred over a 400-year period (8th to 11th centuries) in England (and some European countries), where a system of largely kin-based dispute settlement gave way to a court system, in which feudal lords retained a portion of property forfeited by an offender. In England, this loose system was centralised and consolidated during the century following the Norman Invasion in 1066, as the development of state (crown) law depended on the collection of revenues collected by judges for the king. For restorative justice advocates, the transformation of disputes as offences between individuals to offences against the state is one element that marked the end of pre-modern forms of restorative justice. A second element is the decline in compensation to the victim for the losses from a crime (Weitekamp, 1999). Advocates' constructions of the history of restorative justice, that is, the origin myth that a superior justice form prevailed before the imposition of retributive justice, is linked to their desire to maintain a strong oppositional contrast between retributive and restorative 13 justice. That is to say, the origin myth and oppositional contrast are both required in telling the true story of restorative justice. I do not see bad faith at work here. Rather, advocates are trying to move an idea into the political and policy arena, and this may necessitate having to utilise a simple contrast of the good and the bad justice, along with an origin myth of how it all began. What does concern me is a smoothing over and a lumping together in one justice form the specific histories and practices of justice in pre-modern societies. Is it appropriate to refer to all of these justice practices 'restorative'? What, in fact, do they have in common? What is gained, and more importantly, what is lost by this homogenising move? Efforts to write histories of restorative justice, where a pre-modern past is romantically (and selectively) invoked to justify a current justice practice, are not only in error, but also unwittingly reinscribe an ethnocentrism their authors wish to avoid. As Blagg (1997) and Cain (2000) point out, there has been an orientalist appropriation of indigenous justice practices, largely in the service of strengthening advocates' positions. A common, albeit erroneous, claim is that conferencing 'has its direct roots in Maori culture' (Shearing, 2001: 218, note 5; see also Consedine, 1995). The real story is that conferencing emerged in the 1980s, in the context of Maori political challenges to white New Zealanders and to their welfare and criminal justice system. Investing decision-making practices with Maori cultural values meant that family groups (whanau) should have a greater say in what happens, that venues should be culturally appropriate, and that processes should accommodate a mix of culturally appropriate practices. New Zealand's minority group population includes not only the Maori but also Pacific Island Polynesians. Therefore, with the introduction of conferencing, came awareness of the need to incorporate different elements of 'cultural appropriateness' into the conference process. But the devising of a (white, bureaucratic) justice practice that is flexible and accommodating toward cultural 14 differences does not mean that conferencing is an indigenous justice practice. Maxwell and Morris (1993: 4), who know the New Zealand situation well, are clear on this point: A distinction must be drawn between a system which attempts to re-establish the indigenous model of pre-European times and a system of justice which is culturally appropriate. The New Zealand system is an attempt to establish the latter, not to replicate the former. As such, it seeks to incorporate many of the features apparent in whanau decision-making processes and seen in meetings on marae today, but it also contains elements quite alien to indigenous models. Conferencing is better understood as a fragmented justice form: it splices white, bureaucratic forms of justice with elements of informal justice that may include non-white (or non-Western) values or methods of judgment, with all the attendant dangers of such 'spliced justice' (Daly, 1998; Findlay, 2000; Pavlich, 1996). With the flexibility of informal justice, practitioners, advocates, and members of minority groups may see the potential for introducing culturally sensible and responsive forms of justice. But to say that conferencing is an indigenous justice practice (or 'has its roots in indigenous justice') is to re-engage a white-centred view of the world. And, as Blagg (1997) suggests, it may lead to a 'double failure' for members of indigenous groups: not only will they appear to have 'failed' to act in a law-abiding fashion, and but also they will appear to have 'failed' to act appropriately as indigenous people according to a white-centred justice script. Myth 3. Restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice' (or masculine) response. Myths 2 and 3 have a similar oppositional logic, but play with different dichotomies. The following chart shows the terms that are often linked to restorative and retributive justice. 15 restorative justice retributive justice pre-modern modern indigenous (informal) state (formal) feminine (care) masculine (justice) eastern (Japan) western (US) superior justice inferior justice Note here the power inversion, essential to the origin myth of restorative justice, where the subordinated or marginalised groups (pre-modern, indigenous, feminine) are aligned with the more superior justice form. Many readers will be familiar with the 'care' and 'justice' dichotomy. It was put forward by Carol Gilligan in her hughly popular book, In a Different Voice (1982). For about a decade, it seemed that most feminist legal theory articles were organised around the 'difference' versus 'dominance' perspectives of Gilligan and MacKinnon, respectively. In criminology, Heidensohn (1986) and Harris (1987) attempted to apply the care/justice dichotomy to the criminal justice system. I came into this debate in 1989, saying that we should challenge the association of justice and care reasoning with male/masculine and female/feminine voices, respectively (Daly, 1989). I suggested that this gender-linked association was not accurate empirically, and argued that it would be misleading to think that an alternative to men's forms of criminal law and justice practices could be found by adding women's voice or reconstituting the system along the lines of an ethic of care. But the different voice is back! Now the 'ethic of care' (Persephone) is pitched as the alternative to retributive justice (Portia). Masters and Smith (1998) attempt to demonstrate that Persephone, the voice of caring, is evident in a variety of restorative responses to crime. Their arguments confuse, however, because they argue that Persephone is 'informed by an ethic of care as well as an ethic of justice' (p. 11). And toward the end of the article, they say 16 'we cannot do without Portia (ethic of justice), but neither can we do without Persephone' (p. 21). Thus, it is not clear whether, within the terms of their argument, Persephone stands for the feminine or includes both the masculine and feminine, or whether we need both Portia and Persephone. They apparently agree with all three positions. They also see little difference between a 'feminine' and a 'feminist approach', terms that they use interchangeably. In general, they normally credit 'relational justice as a distinctly feminine approach to crime and conflict' (p. 13). They say that 'reintegrative shaming can be considered a feminine (or Persephone) theory' and that there is a 'fit between reintegrative shaming practice and the feminist ethic of care' (p. 13, my italics since the authors have shifted from a feminine ethic to a feminist ethic). Toward the end of the paper, they make the astonishing claim, one that I suspect my colleague John Braithwaite would find difficult to accept, that 'reintegrative shaming is perhaps the first feminist criminological theory'. They argue this is so because the 'practice of reintegrative shaming can be interpreted as being grounded in a feminine, rather than a masculine understanding of the social world' (p. 20). There is a lot to unpick here, and I shall not go point by point. Nor do I wish to undermine the spirit of the paper since the authors' intentions are laudable, in particular, their desire to define a more progressive way to respond to crime. My concern is that using gender dichotomies, or any dichotomies for that matter, to describe principles and practices of justice will always fail us, will always lead to great disappointment. viii Traditional courthouse justice works with the abstraction of criminal law, but must deal with the messy world of people's lives, and hence, must deal with context and relations. 'Care' responses to some offenders can re-victimise some victims; they may be helpful in some cases or for some offenders or for some victims or they may also be oppressive and unjust for other offenders and victims. Likewise, with so-called 'justice' responses. The set of terms lined up along the 'male/masculine' and 'female/feminine' poles is long and varied: some terms are about 17 process, others with modes of response (e.g., repair the harm), and still others, with ways of thinking about culpability for the harm. ix I am struck by the frequency with which people use dichotomies such as the male and female voice, retributive and restorative justice, or West and East, to depict justice principles and practices. Such dichotomies are also used to construct normative positions about justice, where it is assumed (I think wrongly) that the sensibility of one side of the dualism necessarily excludes (or is antithetical to) the sensibility of the other. Increasingly, scholars are coming to see the value of theorising justice in hybrid terms, of seeing connections between apparent oppositions (see e.g., Bottoms, 1998; Daly, 2000a; Duff, 2001; Hudson, 1998; Zedner, 1994). Like the advocates promoting Myth 2, those promoting Myth 3 want to emphasise the importance of identifying a different response to crime than the one currently in use. I am certainly on the side of that aspiration. However, I cannot agree with the terms in which the position has been argued and sold to academic audiences and wider publics. There is a loss of credibility when analyses do not move beyond oppositional justice metaphors, when claims are imprecise, and when extraordinary tales of repair and goodwill are assumed to be typical of the restorative justice experience. Myth 4. Restorative justice can be expected to produce major changes in people. I have said that attention needs to be given to the 'reality on the ground', to what is actually happening in, and resulting from, practices termed 'restorative justice'. There are several levels to describe and analyse what is going on; first, what happens in the justice practice itself; second, the relationship between it and the broader justice system; and third, how restorative justice is located within the broader politics of crime control. I focus on the first level and present two forms of evidence: (1) stories of dramatic transformations or moving 18 accounts of reconciliation and (2) aggregated information across a larger number of cases, drawing from research on conference observations and interviews with participants. Stories of restorative justice Consedine (1995: 9) opens his book by excerpting from a 1993 New Zealand news story: The families of two South Auckland boys killed by a car welcomed the accused driver yesterday with open arms and forgiveness. The young man, who gave himself up to the police yesterday morning, apologised to the families and was ceremonially reunited with the Tongan and Samoan communities at a special ser vice last night. The 20-year old Samoan visited the Tongan families after his court appearance to apologise for the deaths of the two children in Mangere. The Tongan and Samoan communities of Mangere later gathered at the Tongan Methodist Church in a service of reconciliation. The young man sat at the feast table flanked by the mothers of the dead boys. Consedine says further that this case provides 'ample evidence of the power that healing and forgiveness can play in our daily lives. ... The grieving Tongan and Samoan communities simply embraced the young driver ... and forgave him. His deep shame, his fear, his sorrow, his alienation from the community was resolved' (p. 162). Another example comes from Umbreit (1994: 1). His book opens with the story of Linda and Bob Jackson, whose house was broken into; they subsequently met with the offender as part of his sentencing disposition. The offender, Allan, 'felt better after the mediation ... he was able to make amends to the Jacksons'. Moreover, 'Linda and Bob felt less vulnerable, were able to sleep better and received payment for their losses. All parties were able to put this event behind them'. Later in the book, Umbreit (1994: 197-202) offers 19 another case study of a second couple, Bob and Anne, after their house was burglarised a second time. He summarises the outcome this way: Bob, Anne, and Jim [the offender] felt the mediation process and outcome was fair. All were very satisfied with participation in the program. Rather than playing passive roles ... [they] actively participated in 'making things right'. During a subsequent conversation with Bob, he commented that 'this was the first time (after several victimisations) that I ever felt any sense of fairness. The courts always ignored me before. They didn't care about my concerns. And Jim isn't such a bad kid after all, was he?' Jim also indicated that he felt better after the mediation and more aware of the impact the burglary had on Bob and Anne (p. 202). Lastly, there is the fable of Sam, an adolescent offender who attended a diversionary conference, which was first related by Braithwaite (1996) and retold by Shearing (2001: 214-215). Braithwaite (1996: 2) says that his story is a 'composite of several Sams I have seen'; thus, while he admits that it is not a real story of Sam, it is said to show the 'essential features ... of restorative justice' (Shearing 2001: 214). This is something like a building contractor saying to a potential home buyer, 'this is a composite of the house I can build for you; it's not the real house, but it's like many houses I have sold to happy buyers over the years'. What the composite gives and what the building contractor offers us is a vision of the possible, of the perfect house. Whether the house can ever be built is less important than imagining its possibility and its perfection. This is the cornerstone of the true story of restorative justice, like many proposed justice innovations of the past. Sam's story, as told by Braithwaite, is longer than I give here, and thus, I leave out emotional details that make any story compelling. Sam, who is homeless and says he was abused by his parents, has no one who really cares about him except his older sister, his former hockey coach at school, and his Uncle George. These people attend the conference, 20 along with the elderly female victim and her daughter. Sam says he knocked over the victim and took her purse because he needed the money. His significant others rebuke him for doing this, but also remember that he had a good side before he started getting into trouble. The victim and daughter describe the effects of the robbery, but Sam does not seem to be affected. After his apparent callous response to the victim, Sam's sister cries, and during a break, she reveals that she too had been abused by their parents. When the conference reconvenes, Sam's sister speaks directly to Sam, and without mentioning details, says she understands what Sam went through. The victim appreciates what is being said and begins to cry. Sam's callous exterior begins to crumble. He says he wants to do something for the victim, but doesn't know what he can do without a home or job. His sister offers her place for him to stay, and the coach says he can offer some him work. At the end of the conference, the victim hugs Sam and tearfully says good luck, Sam apologises again, and Uncle George says he will continue to help Sam and his sister when needed. Many questions arise in reading stories like these. How often do expressions of kindness and understanding, of movement toward repair and goodwill, actually occur? What are the typical 'effects' on participants? Is the perfect house of restorative justice ever built? Another kind of evidence, aggregated data across a larger number of cases, can provide some answers. Statistical aggregates of restorative justice Here are some highlights of what has been learned from research on youth justice conferences in Australia and New Zealand. x Official data show that about 85-90 percent of conferences resulted in agreed outcomes, and 80 percent of young people completed their agreements. From New Zealand research in the early 1990s (Maxwell and Morris 1993), conferences appeared to be largely offender-centred events. Just half of victims attended 21 conferences, and of all the groups involved, victims were the least satisfied with what happened. Maxwell and Morris (1996:95-96) also reported that 'the new system remains largely unresponsive to cultural differences' in handling Maori cases, which they argue is a consequence, in part, of too few resources. The most robust finding across all the studies in the region is that conferences receive very high marks along dimensions of procedural justice, that is, victims and offenders view the process and the outcomes as fair. In the Re-Integrative Shaming Experiments (RISE) in Canberra, admitted offenders were randomly assigned to court and conference. Strang et al. (1999) have reported the following findings to date. Compared to those offenders who went to court, those going to conferences have higher levels of procedural justice, higher levels of restorative justice, and an increased respect for the police and law. Compared to victims whose cases went to court, conference victims have higher levels of recovery from the offence. Conference victims also had high levels of procedural justice, but they could not be compared to court victims, who rarely attended court proceedings. The RISE findings are important because they give us an indication of the relative merits of a conference or court proceeding. Few other projects can do this. Like other studies, the South Australia Juvenile Justice (SAJJ) Research on Conferencing Project finds very high levels of procedural justice registered by offenders and victims at conferences. To items such as, were you treated fairly, were you treated with respect, did you have a say in the agreement, among others, 80 to 95 percent of victims and offenders said that they were treated fairly and had a say. In light of the procedural justice literature, these findings are of interest because, as the argument goes, when citizens perceive a legal process as fair, when they are listened to and treated with respect, there is an affirmation of the legitimacy of the legal order. 22 Compared to the high levels of perceived procedural justice, the SAJJ project finds relatively less evidence of restorativeness. The measures of restorativeness tapped the degree to which offenders and victims recognised the other and were affected by the other; they focused on the degree to which there was positive movement between the offender and victim and their supporters during the conference (the SAJJ measures are more concrete and relational measures of restorativeness than those used in RISE). Whereas very high proportions of victims and offenders (80 to 95 percent) said that the process was fair (among other variables taping procedural justice), 'restorativeness' was evident in 30 to 50 percent of conferences (depending on the item), and solidly in no more than about one-third. Thus, in this jurisdiction where conferences are used routinely, xi fairness can more easily be achieved than restorativeness. As but one example, from the interviews we learned that from the victims' perspectives, less than 30 percent of offenders were perceived as making genuine apologies, but from the offenders' perspectives, close to 60 percent said their apology was genuine. These results lead me to think that young people (offenders) and victims orient themselves to a conference and what they hope to achieve in it in ways different that the advocacy literature imagines. The stance of empathy and openness to 'the other', the expectation of being able to speak and reflect on one's actions, and the presence of new justice norms (or language) emphasising 'repair' -- all of these are novel cultural elements for most participants. Young people appear to be as, if not more, interested in repairing their own reputations than in repairing the harm to victims. Among the most important things that the victims hoped would occur at the conference was for the offender to hear how the offence affected them, but half the offenders told us that the victim's story had no effect or only a little effect on them. 23 How often, then, does the exceptional or 'nirvana' story of repair and goodwill occur? I devised a measure that combined the SAJJ observer's judgment of the degree to which a conference 'ended on a high, a positive note of repair and good will' with one that rated the conference on a 5-point scale from poor to exceptional. While the first tapped the degree to which there was movement between victims and offenders toward the 'other', the second tapped a more general feeling about the conference dynamics and how well the conference was managed by the coordinator. With this combined measure, 10 percent of conferences were rated very highly, another 40 percent, good; and the rest, a mixed or poor rating. If conferencing is used routinely (not just in a select set of cases), I suspect that the story of Sam and Uncle George will be infrequent; it may happen 10 percent of the time, if that. Assessing the 'effects' of conferences on participants is complex because such effects change over time and, for victims, they are contingent on whether offenders come through on promises made. I present findings on victims' sense of having 'recovered' from the offence and on young people's re-offending in the post-conference period. In the Year 2 (1999) interviews with victims, over 60 percent said they had 'fully recovered' from the offence, that it was 'all behind' them. Their recovery was more likely when offenders completed the agreement than when they did not, but recovery was only partly influenced by the conference and an offender's behaviour. As important, they said, was the 'passage of time' and 'self-resources' such as their own resilience. However, conferences can have positive 'effects' on reducing victims' anger toward and fear of offenders. Drawing from the victim interviews in 1998 and 1999, over 75 percent of victims felt angry toward the offender before the conference, but this dropped to 44 percent after the conference and was 39 percent a year later. Close to 40 percent of victims were frightened of the offender before the conference, but this dropped to 25 percent after the conference and was 18 percent a year later. 24 Therefore, for victims, meeting offenders in the conference setting can have beneficial results. The conference effect everyone asks about is, does it reduce re-offending? Proof (or disproof) of reductions in re-offending from conferences (compared not only to court, but to other interventions such as formal caution, other diversion approaches, or no legal action at all) will not be available for a long time, if ever. The honest answer to the re-offending question is 'we'll probably never know' because the amounts of money would be exorbitant and research methods using experimental designs judged too 'risky' in an ethical and political sense. To date, there have been three studies of conferencing and re-offending in Australia and New Zealand, one of which compares re-offending for a sample of offenders randomly assigned to conference and court and two that explore whether re-offending can be linked to things that occur in conferences. xii The RISE project finds that for one of four major offence categories studied (violent offences compared to drink driving, property offences, shoplifting), those offenders who were assigned to a conference had a significantly reduced rate of re-offending than those who were assigned to court (Sherman, Strang, and Woods, 2000). As others have said (Abel, 1982: 278; Levrant et al., 1999: 17-22), there is a great faith placed on the conference process to change young offenders, when the conditions of their day to day lives, which may be conducive to getting into trouble, may not change at all. The SAJJ project asked if there were things that occurred in conferences that could predict re-offending, over and above those variables known to be conducive to lawbreaking (and its detection): past offending and social marginality (Hayes and Daly, 2001). In a regression analysis, we found that over and above the young person's race-ethnicity (Aboriginal or non-Aboriginal), sex, whether s/he offended prior to the offence that led to the SAJJ 25 conference, and a measure of the young person's mobility and marginality, there were two conference elements associated with re-offending. When young people were remorseful and when outcomes were achieved by genuine consensus, they were less likely to re-offend during an 8- to 12-month period after the conference. These results are remarkably similar to those of Maxwell and Morris (2000) in their study of re-offending in New Zealand. They found that what happens in conferences (e.g., a young person's expressions of remorse and agreeing [or not] with the outcome, among other variables) could distinguish those young people who were and were not 'persistently reconvicted' during a 6-1/2 year follow up period. THE REAL OR THE TRUE STORY? Advocates want to tell a particular kind of story, the mythical true story of restorative justice. This story asks people to develop their 'caring' sides and to 'resist tyranny with compassion' (Braithwaite, 1999: 2). It suggests that amidst adversity, there is great potential 'for doing good' for self and others (paraphrasing Eckel, 1997; cited by Braithwaite, 1999: 2). It rewrites the history of justice practices by celebrating a return to pre-modern forms, and it re-colonises indigenous practices by identifying them as exemplars of restorative justice. The true story offers some hope, not only for a better way to do justice, but also for strengthening mechanisms of informal social control, and consequently, to minimise reliance on formal social control, the machinery and institutions of criminal justice. In order to sell the idea of restorative justice to a wide audience, advocates have painted a dichotomous, oppositional picture of different justice forms, with restorative justice trumping retributive justice as the superior one. There is a certain appeal to this framing of justice: it offers two choices, and it tells us which side is right. With this frame, who could possibly be on the side of retribution and retributive justice? Only the bad guys, of course. When we move from the metaphors and slogans to the hard work of establishing the 26 philosophical, legal, and organisational bases of this idea, and of documenting what actually occurs in these practices, the true story fails us. It lets us down because simple oppositional dualisms are inadequate in depicting criminal justice, even an ideal justice system, and no justice practice can be as extraordinary or successful most of the time, as the advocates would want us to think. The real story of restorative justice is a more qualified one. Empirical evidence of conferencing in Australia and New Zealand suggests that very high proportions of people find the process fair; on many measures of procedural justice, it succeeds. However, it is relatively more difficult for victims and offenders to find common ground and to hear each other's stories, or for offenders to give sincere apologies and victims to understand that apologies are sincere. There are limits on 'repairing the harm' for offenders and victims, in part because the idea is novel and unfamiliar for most ordinary citizens. For youthful lawbreakers, the limits also inhere in the salience of any legal process or adult exhortations to 'stay out of trouble', and the problems that adolescents may have in 'recognising the other', an empathetic orientation that is assumed to be central to a restorative process. For victims, the limits reside in the capacity to be generous to lawbreakers and to see lawbreakers as capable of change. A variety of observational and interview items from the SAJJ project suggests that a minority of conferences have the necessary raw material for restorativeness to occur. (One needs to be careful in generalising: the frequency of restorativeness would depend greatly on whether a jurisdiction uses conferences selectively or routinely and what kinds of cases are in the sample.) Overall, the real story of restorative justice has many positives and has much to commend, but the evidence is mixed. Conferencing, or any new justice practice, is not nirvana and ought not to be sold in those terms. In the political arena, telling the mythical true story of restorative justice may be an effective means of reforming parts of the justice system. It may inspire legislatures to pass 27 new laws and it may provide openings to experiment with alternative justice forms. All of this can be a good thing. Perhaps, in fact, the politics of selling justice ideas may require people to tell mythical true stories. The real story attends to the murk and constraints of justice organisations, of people's experiences as offenders and victims and their capacities and desires to 'repair the harm'. It reveals a picture that is less sharp-edged and more equivocal. My reading of the evidence is that face-to-face encounters between victims and offenders and their supporters is a practice worth maintaining, and perhaps enlarging, although we should not expect it to deliver strong stories of repair and goodwill most of the time. If we want to avoid the cycle of optimism and pessimism (Matthews, 1988) that so often attaches to any justice innovation, then we should be courageous and tell the real story of restorative justice. But, in telling the real story, there is some risk that a fledgling idea will meet a premature death. 28 References Abel, Richard L. (1982) 'The contradictions of informal justice', in R. L. Abel (ed.) The Politics of Informal Justice, vol. 1, pp. 267-320. New York: Academic Press. Ashworth, Andrew (1993) 'Some doubts about restorative justice', Criminal Law Forum 4: 277-99. Bargen, Jenny (1996) 'Kids, cops, courts, conferencing and children's rights: a note on perspectives', Australian Journal of Human Rights 2(2): 209-28. Bazemore, Gordon and Mara Schiff (eds.) (2001) Restorative Community Justice. Cincinnati: Anderson Publishing. Bazemore, Gordon and Lode Walgrave (1999) 'Restorative juvenile justice: in search of fundamentals and an outline for systemic reform', in G. Bazemore and L. Walgrave (eds.) Restorative Juvenile Justice: Repairing the Harm of Youth Crime, pp. 45-74. Monsey, NY: Criminal Justice Press. Blagg, Harry (1997) 'A just measure of shame? Aboriginal youth and conferencing in Australia', British Journal of Criminology 37(4): 481-501. Bottoms, Anthony E. (1998) 'Five puzzles in von Hirsch's theory of punishment', in A. Ashworth and M. Wasik (eds.) Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch, pp. 53-100. Oxford: Clarendon Press. Braithwaite, John (1996) 'Restorative justice and a better future', Dorothy J. Killam Memorial Lecture, reprinted in Dalhousie Review 76(1): 9-32. [citation to lecture ms.] Braithwaite, John (1999) 'Restorative justice: assessing optimistic and pessimistic accounts', in M. Tonry (ed.) Crime and Justice: A Review of Research 25: 1-127. Chicago: University of Chicago Press. Braithwaite, John and Kathleen Daly (1994) 'Masculinities, violence and communitarian control', in T. Newburn and E. A. Stanko (eds.) Just Boys Doing Business?, pp. 189- 29 213. New York: Routledge. Braithwaite, John and Phillip Pettit (1990) Not Just Deserts: A Republican Theory of Criminal Justice. New York: Oxford. Cain, Maureen (2000) 'Orientalism, occidentalism and the sociology of crime', British Journal of Criminology 40(2): 239-60. Consedine, Jim. (1995) Restorative Justice: Healing the Effects of Crime. Lyttelton, New Zealand: Ploughshares Publications. Cottingham, John (1979) 'Varieties of retribution', Philosophical Quarterly 29: 238-46. Crawford, Adam (1997) The Local Governance of Crime: Appeals to Community and Partnerships. Oxford: Clarendon Press. Crawford, Adam (2001) 'The prospects for restorative youth justice in England and Wales: a tale of two acts', in K. McEvoy and T. Newburn (eds.) Criminology and Conflict Resolution, pp. xx-xx. London: Macmillan. Crawford, Adam and Jo Goodey (eds.) (2000) Integrating a Victim Perspective within Criminal Justice. Aldershot: Ashgate/Dartmouth. Daly, Kathleen (1989) 'Criminal justice ideologies and practices in different voices: some feminist questions about justice', International Journal of the Sociology of Law 17(1): 1-18. Daly, Kathleen (1998) 'Restorative justice: moving past the caricatures', Paper presented to Seminar on Restorative Justice, Institute of Criminology, University of Sydney Law School, Sydney, April. <http://www.gu.edu.au/school/ccj/kdaly.html> Daly, Kathleen (2000a) 'Revisiting the relationship between retributive and restorative justice', in H. Strang and J. Braithwaite (eds.) Restorative Justice: From Philosophy to Practice, pp. 33-54. Aldershot: Ashgate/Dartmouth. Daly, Kathleen (2000b) 'Sexual assault and restorative justice', paper presented at Restorative 30 Justice and Family Violence Conference, Australian National University, Canberra, July. <http://www.gu.edu.au/school/ccj/kdaly.html> Daly, Kathleen (2001a) 'Conferencing in Australia and New Zealand: variations, research findings, and prospects', in A. Morris and G. Maxwell (eds.) Restorative Justice for Juveniles: Conferencing, Mediation and Circles, pp. 59-84. Oxford: Hart Publishing Ltd. <http://www.gu.edu.au/school/ccj/kdaly.html> Daly, Kathleen (2001b) South Australia Juvenile Justice (SAJJ) Research on Conferencing, Technical Report No. 2: Research Instruments in Year 2 (1999) and Background Notes. School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland. <http://www.aic.gov.au/rjustice/sajj/index.html> Daly, Kathleen and Hennessey Hayes (2001) 'Restorative justice and conferencing in Australia', Trends & Issues in Crime and Criminal Justice No. 186. Canberra: Australian Institute of Criminology. http://www.aic.gov.au/publications/tandi/tandi186.html> Daly, Kathleen and Russ Immarigeon (1998) 'The past, present, and future of restorative justice: some critical reflections', Contemporary Justice Review 1(1): 21-45. Daly, Kathleen, Michele Venables, Mary McKenna, Liz Mumford, and Jane Christie- Johnston (1998) South Australia Juvenile Justice (SAJJ) Research on Conferencing, Technical Report No. 1: Project Overview and Research Instruments (Year 1), School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland. <http://www.aic.gov.au/rjustice/sajj/index.html> Davis, Gwynn (1992) Making Amends: Mediation and Reparation in Criminal Justice. London: Routledge. Delgado, Richard (2000) 'Prosecuting violence: a colloquy on race, community, and justice', Stanford Law Review 52: 751-74. 31 Duff, R. Antony (1992) 'Alternatives to punishment -- or alternative punishments?', in W. Cragg (ed.) Retributivism and Its Critics, pp. 44-68. Stuttgart: Franz Steiner. Duff, R. Antony (1996) 'Penal communications: recent work in the philosophy of punishment', in M. Tonry (ed.) Crime and Justice: A Review of Research 20: 1-97. Chicago: University of Chicago Press. Duff, R. Antony (2001) 'Restoration and retribution', Paper presented to Cambridge Seminar on Restorative Justice, Toronto, May. Eckel, M. (1997) 'A Buddhist approach to repentance' in A. Etzioni and D. Carney (eds) Repentance: A Comparative Perspective, pp. xx-xx. New York: Rowman & Littlefield. Engel, David (1993) 'Origin myths; narratives of authority, resistance, disability, and law', Law & Society Review 27(4): 785-826. Feeley, Malcolm and Jonathan Simon (1992) 'The new penology; notes on the emerging strategy of corrections and its implications' Criminology 30(4): 449-74. Findlay, Mark (2000) 'Decolonising restoration and justice in transitional cultures' in H. Strang and J. Braithwaite (eds.) Restorative Justice: Philosophy to Practice, pp. 185- 201. Aldershot: Ashgate/Dartmouth. Garland, David (1996) 'The limits of the sovereign state', British Journal of Criminology 36(4): 445-71. Gilligan, Carol (1982) In a Different Voice. Cambridge: Harvard University Press. Hampton, Jean (1992) 'Correcting harms versus righting wrongs: the goal of retribution', UCLA Law Review 39: 1659-1702. Harris, M. Kay (1987) 'Moving into the new millennium: toward a feminist vision of justice', The Prison Journal 67: 27-38. Hayes, Hennessey and Kathleen Daly (2001) 'Family conferencing in South Australia and re- 32 offending: preliminary results from the SAJJ project', Paper presented to Australian and New Zealand Society of Criminology Conference, Melbourne, February. to appear <http://www.aic.gov.au/rjustice/sajj/index.html> Heidensohn, Frances (1986) 'Models of justice: Portia or Persephone? Some thoughts on equality, fairness and gender in the field of criminal justice', International Journal of the Sociology of Law 14: 287-98. Hudson, Barbara (1998) 'Restorative justice: the challenge of sexual and racial violence', Journal of Law and Society 25(2): 237-56. Hudson, Joe, Allison. Morris, Gabrielle Maxwell, and Burt Galaway (eds.) (1996) Family Group Conferences: Perspectives on Policy and Practice. Monsey, NY: Criminal Justice Press. La Prairie, Carol (1999) 'Some reflections on new criminal justice policies in Canada: restorative justice, alternative measures and conditional sentences', Australian and New Zealand Journal of Criminology 32(2): 139-52 Levrant, Sharon, Francis T. Cullen, Betsy Fulton, and John F. Wozniak (1999) 'Reconsidering restorative justice: the corruption of benevolence revisited?', Crime & Delinquency 45(1): 3-27. Masters, Guy and David Smith (1998) 'Portia and Persephone revisited: thinking about feeling in criminal justice', Theoretical Criminology 2(1): 5-27. Matthews, Roger. (1988) 'Reassessing informal justice', in R. Matthews (ed.) Informal Justice?, pp. 1-24. Newbury Park, CA: Sage. Maxwell, Gabrielle and Allison Morris (1993) Family, Victims and Culture: Youth Justice in Zealand. Wellington: Social Policy Agency and the Institute of Criminology, Victoria University of Wellington. Maxwell, Gabrielle and Allison Morris (1996) 'Research on family group conferences with 33 young offenders in New Zealand', in J. Hudson et al. (eds.) Family Group Conferences: Perspectives on Policy & Practice, pp. 88-110. Monsey, NY: Willow Tree Press. McCold, Paul (1999/2000) Real Justice Forum, Issue 8: 3 (1999), which summarises the venn diagram. His paper and responses are to appear in Contemporary Justice Review (2000), Vol. 3(4). Morris, Allison and Gabrielle Maxwell (2001) (eds.) Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing Ltd. Mead, George Herbert (1917-18) 'The psychology of punitive justice', The American Journal of Sociology 23: 577-602 [reprinted in The Sociology of Punishment, Dario Melossi (ed.)]. O'Malley, Pat (1999) 'Volatile and contradictory punishment', Theoretical Criminology 3(2): 175-96. Pavlich, George C. (1996) Justice Fragmented: Mediating Community Disputes under Postmodern Conditions. New York: Routledge. Pratt, John (2000) 'The return of the wheelbarrow men; or, the arrival of postmodern penality?', British Journal of Criminology 40: 127-45. Shearing, Clifford (2001) 'Punishment and the changing face of the governance', Punishment & Society 3(2): 230-20. Strang, Heather, Lawrence W. Sherman, Geoffrey C. Barnes, and John Braithwaite (1999) Experiments in Restorative Policing: A Progress Report to the National Police Research Unit on the Canberra Reintegrative Shaming Experiments (RISE). Canberra: Australian National University. <http://www.aic.gov.au/rjustice/rise/index.html> 34 Snider, Laureen (1998) 'Toward safer societies: punishment, masculinities and violence against women', British Journal of Criminology 38(1): 1-39. Tonry, Michael (1999) 'Rethinking unthinkable punishment policies in America', UCLA Law Review 46(4): 1751-91. Umbreit, Mark (1994) Victim Meets Offender: The Impact of Restorative Justice and Mediation. Monsey, NY: Criminal Justice Press. Van Ness, Daniel (1993) 'New wine and old wineskins: four challenges of restorative justice', Criminal Law Forum 4: 251-76. Van Ness, Daniel and Karen Strong (1997) Restoring Justice. Cincinnati: Anderson Publishing. Walgrave, Lode (1995) 'Restorative justice for juveniles: just a technique or a fully fledged alternative?', The Howard Journal 34: 228-49. Walgrave, Lode and Ivo Aertsen (1996) 'Reintegrative shaming and restorative justice: interchangeable, complementary or different?', European Journal on Criminal Policy and Research 4: 67-85. Weitekamp, Elmar (1999) 'The history of restorative justice', in G. Bazemore and L. Walgrave (eds.) Restorative Juvenile Justice: Repairing the Harm of Youth Crime, pp. xx-xx. Monsey, NY: Criminal Justice Press. Wright, Martin (1991) Justice for Victims and Offenders. Philadelphia: Open University Press. Zedner, Lucia (1994) 'Reparation and retribution: are they reconcilable?', Modern Law Review 57: 228-50. Zehr, Howard. (1995) 'Justice paradigm shift? Values and vision in the reform process', Mediation Quarterly 12(3): 207-16. 35 Notes i Indicative examples of advocates are Bazemore and Walgrave (1999), Braithwaite (1999), Consedine (1995), Van Ness and Strong (1997), Umbreit (1994), and Zehr (1995). Among the skeptics/critics are Ashworth (1993), Blagg (1997), Delgado (2000), Hudson (1998), Levrant et al. (1999), and Pavlich (1996). Because the modern idea of restorative justice is new, publications reporting research are few. Among them are contributors in collections edited by Bazemore and Schiff (2001), Crawford and Goodey (2000), Hudson et al. (1996), and Morris and Maxwell (2001). ii Conferences are meetings where an admitted offender(s), his/her supporters, a victim(s), his/her supporters, and relevant other people come together to discuss the offence, its impact, and what sanction (or reparation) is appropriate. The conference, which is run by a coordinator and attended by a police officer, is typically used as diversion from court prosecution, but it may also be used to provide pre-sentencing advice to judges and magistrates. Police-run diversionary conferencing is highly atypical of Australian and New Zealand conferencing, whereas it is more typical in UK and North American practices. See Bargen (1996), Daly and Hayes (2001), and Hudson et al. (1996) for overviews of jurisdiction variation in Australia and New Zealand. iii McCold's proposal is discussed and debated in Contemporary Justice Review (2000); my reference is to his initial article in Real Justice Forum (1999). iv Drawing from Cottingham's (1979) analysis of retribution's many meanings, restorative justice advocates tend to use retributivism to mean 'repayment' (to which they add a punitive kick) whereas desert theorists, such as von Hirsch, use retributivism to mean 'deserved' and would argue for decoupling retribution from punitiveness. 36 v It is important to emphasise that 'new justice' practices have not been applied to the fact-finding stage of the criminal process; they are used almost exclusively for the penalty phase. Some comparative claims about restorative justice practices (e.g., they are not adversarial when retributive justice is) are misleading in that restorative justice attends only to the penalty phase when negotiation is possible. No one has yet sketched a restorative justice process for those who do not admit to an offence. vi I became aware of the term 'new justice' from LaPrairie's (1999) analysis of developments in Canada. She defines 'new justice' initiatives as representing a 'shift away from a justice discourse of punitiveness and punishment toward one of reconciliation, healing, repair, atonement, and reintegration' (p. 147), and she sees such developments as part of a new emphasis on 'community' and 'partnership' as analysed by Crawford (1997). vii Restorative justice advocates speak of the harm not of the crime, and in doing so, they elide a crucial distinction between a civil and criminal harm, the latter involving both a harm and a wrong (Duff, 2001). viii In response to this point, one reader said there had to be some way to theorise varied justice forms (both in an empirical and normative sense), and thus, the 'disappointment' I speak of reflects a disenchantment with the theoretical enterprise to adequately reflect particularity and variation in the empirical social world. This is a longstanding problem in the sociological field. What troubles me is the construction of theoretical terms in the justice field, which use dualisms in adversarial and oppositional relation to one another. ix There are other, more sophisticated, analyses of the ethics of care and its applicability to criminal justice. For example, Snider (1998) argues that we need to learn more about 'activities of caring ... or the implications of such an orientation, compared to those central to punishing' (pp. 27-28). 37 x The major research studies in the region are Maxwell and Morris (1993) for New Zealand, Strang et al. (1999) for the ACT and the RISE project, and the results reported here for the SAJJ project in South Australia. See Daly (2001a) for a review of these and other studies. Space limitations preclude a review of the methods of each study; rather, general findings are summarised. xi It is important to distinguish jurisdictions like South Australia, New South Wales, and New Zealand, where conferences are used routinely from other jurisdictions (like Victoria and Queensland), where conferences are used selectively and in a relatively few number of cases. When conferences are used routinely, we should not expect to see 'restorativeness' emerging most of the time. xii Space limitations preclude a review of the definitions and methods used in the re-offending studies; rather general findings are summarised. 
work_5fxjqcvdcvhhvpvfn3gf4kwdj4	----	Science Magazine 1072 EDITED BY KRISTEN MUELLER AND JAKE YESTON EDITORS’CHOICE C R E D IT S ( T O P T O B O T T O M ): S O E Z E Y A T U N /R T R /N E W S C O M ; F O T O S E A R C H 26 AUGUST 2011 VOL 333 SCIENCE www.sciencemag.org ing data from fi ve national surveys conducted between 1975 and 2007, Siikamäki attempted to assess the value of one aspect of state parks: recreation. About a third of the time people cur- rently spend on nature recreation in the United States is accounted for in state parks. Although use of state parks has declined over the time pe- riod covered in the surveys, the cost of running the parks remains easily outdistanced by the rec- reation value derived from the parks. Following the conventional approach of valuing recreation time at one-third of paid wage time, the value of nature recreation in state parks reaches about $14 billion annually, whereas annual opera- tion costs total about $2.3 billion. Thus, these sometimes unassuming parks build a network that delivers ecosystem and economic value, as well as just giving us a nice day. — PJH Proc. Natl. Acad. Sci. U.S.A. 108, 10.1073/ pnas.1108688108 (2011). C H E M I S T R Y Stuffi ng Your Struts The potential for using metal-organic frame- works (MOFs) as catalysts is often frustrated by a fundamental tradeoff. The synthetic routes for S O C I O L O G Y Not Contagious After All? Studies of social infl uences on behavior have led to the idea that a range of characteristics from loneliness to obesity might be contagious. A signifi cant problem for the fi eld has been to distinguish effects due to similarities between people (homophily) from social infl uence. One strategy for doing this has been to look at changes that occur over time. However, such studies have been the subject of consider- able debate, and Noel and Nyhan now add a cautionary note. Their analyses of a model used in past social contagion studies suggest that previous investigations have not fully controlled for the possibility that friendship formation and termination are dynamic processes, and friend- ships between people who are more similar may tend to be more stable over time. Or to put it in Facebook terms, friendships that are between people who are less similar may be less stable, and therefore may result in “unfriending.” Homophily might thus be having a larger effect than appreciated, and under certain conditions could account for most of the contagion effects observed. They conclude that this unfriending problem renders a determination of causality much more complicated in longitudinal social network data. — BJ Soc. Networks 33, 211 (2011). P O L I C Y The Value of State Parks State parks in the United States can be a refuge for wildlife, a reservoir of plant diversity, or a source of untamed water. They are also a popular destination for recreation. But recent economic belt-tightening means that budgets for state parks are going under the knife. By analyz- G E O P H Y S I C S To Catch a Quake Large earthquakes leave affected populations disoriented and emergency responders scrambling. Having fast, reliable estimates of the location and magnitude of the mainshock and its aftershocks is vital to an effective rapid response plan. In developing countries with the potential for large earthquakes, installing and maintaining seismic networks to collect such data can be expensive. The Quake-Catcher Network is a volunteer-based seismic network that employs personal computers as low-cost seismic sta- tions by sending seismic data collected with a small USB accelerometer through the user’s Internet connection. Although this network had yet to be installed in Chile before the 2010 M 8.8 Maule earthquake, volunteers rapidly installed nearly 100 accelerometers within weeks in and around the mainshock area, including stations set up in local government build- ings, health stations, and homes. Chung et al. describe the network’s ability to accurately collect and discriminate aftershock data and shaking intensity estimates—most within 30 s of an individual event. Improve- ments in accelerometer technology and data processing will probably improve data quality to the point that future networks of hundreds or thousands of stations installed in high-seismicity regions will aid fi rst responders in determining where most help is needed after a large earth- quake strikes. — NW Seismol. Res. Lett. 82, 526 (2011). Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ EDITORS’CHOICE www.sciencemag.org SCIENCE VOL 333 26 AUGUST 2011 making MOFs tend to saturate all of the coor- dination sites of metals, even ones contained within the linkers or struts, but catalysis by met- als is usually enabled by the presence of unsatu- rated sites. Shultz et al. developed a strategy that addresses this dilemma for metallosalen struts to use as catalysts within MOFs. Although Mn(salen) can be incorporated into MOFs for asymmetric epoxidations, other metals, such as Co(salen) for asymmetric ring opening, are unsaturated and do not form MOFs directly. The authors describe how Mn(salen) MOFs (in which zinc ions link the struts in a paddlewheel arrangement) can be demetalated with H2O2 and replaced isostructurally with a wide variety of dicationic transition-metal ions, including Co, Cr, Cu, Zn, and reduced Mn (which recovered its catalytic activity after reoxidation). — PDS J. Am. Chem. Soc. 133, 10.1021/ ja204820d (2011). C E L L B I O L O G Y Small Changes Have Big Consequences Protein folding and the maintenance of a healthy proteome often involve molecular chap- erones of the heat shock protein 70 (Hsp70) family. The basis of functional distinctions of highly homologous and functionally redundant Hsp70s is unknown. Nearly identical yeast cytosolic Hsp70s, Ssa1p and Ssa2p, function dif- ferently in the propagation of yeast prions and in a vacuole-import and protein-degradation pathway involved in regulating levels of gluco- neogenesis enzymes. By swapping amino acids, Sharma and Masison show that a single amino acid difference in the nucleotide-binding regula- tory domain of the Ssa proteins is the basis for the functional distinction in both processes. It seems that this small structural difference affects regulation of Hsp70 by cofactors rather than by altering intrinsic Hsp70 activity. Thus, subtle changes in Hsp70 structure may have evolved to confer functional specifi city without affecting overall Hsp70 function. — SMH Proc. Natl. Acad. Sci. U.S.A. 10.1073/ pnas.1107421108 (2011). P O L I C Y Basic Implications In 1980, the United States adopted the Bayh- Dole Act, which allowed researchers to retain intellectual property rights to federally funded research, as a way to encourage the development of technologies that might otherwise languish in labs. Since then, the number of university technology transfer offi ces has boomed, along with patent applications and licensing income. Despite this apparent success, some argue that the act has co-opted universities and undermined the overall scientifi c and economic enterprise, with long-term academic pursuit of knowledge through basic research abandoned in favor of nearer-term profi ts. Thursby and Thursby exam- ined whether basic research has indeed suffered relative to applied research since Bayh-Dole. They analyzed data on thousands of science and engineering faculty from eight major U.S. research universities spanning the years 1983 to 1999. The “basicness” of faculty research was explored via publication analysis, on the reasoning that “basic” journals are cited more heavily by “applied” journals than vice versa. They assessed faculty interest in commercial- izing research by tracking the history of formally disclosing potential inventions. Their model also accounted for research funding, age, tenure, and other infl uences. They found no evidence that interest in commercialization detracted from basic research, and in fact saw that basic research effort increased in light of the incentive of potential commercialization profi ts. — BW Res. Policy 40, 1077 (2011). P S Y C H O L O G Y Human Justice Are decisions made by judges, which are sup- posed to be made on the basis of facts and legal reasoning, also infl uenced by outside variables such as ethnicity or even how recently the judge had a meal? Shayo and Zussman examined 1750 small claims court rulings handed down by more than 100 judges in Israel from 2000 to 2004; these court cases were fender-bender traffi c accidents in which the plaintiff and defen- dant were of different ethnicities. They found a pattern of ingroup bias: Jewish judges favored Jewish plaintiffs, and Arab judges favored Arab plaintiffs. By considering the times and loca- tions of civilian fatalities during this period, the authors decompose these decisions into half that were arguably ethnicity-neutral and a more biased half associated with spatial-temporal proximity to terrorism, highlighting that a person’s ability to favor their own social group may affect seemingly rational judgments. Danziger et al. analyzed 1100 parole board decisions made by eight judges in Israel in a 10-month period. They document a bias toward retaining the status quo (that is, denying parole) in successive cases adjudicated in a single day. This tendency was eliminated after each of two food breaks, suggesting that cognitive balance can be restored after resource depletion. — GJC Q. J. Econ. 126, 10.1093/qje/qjr022 (2011); Proc. Natl. Acad. Sci. U.S.A. 108, 6889 (2011). 17050 Montebello Road Cupertino, California 95014 Email: AAASInfo@betchartexpeditions.com www.betchartexpeditions.com For a detailed brochure, please call (800) 252-4910 All prices are per person twin share + air Costa Rica & Nicaragua On board Star Flyer Nov. 27–Dec. 4, 2011 Discover San Juan del Sur and Lago Nicaragua (the Atlantic- Pacific crossing before the Panama Canal) and national parks along the coast of Costa Rica. Discover birds, turtles, sloths and snorkel in pristine santuaries. From $2,995 + air Antarctica on Sale! On board M/V Plancius Dec. 30, 2011–Jan. 11, 2012 Explore the greatest frontier on earth, a magnificent wilderness with a profusion of penguins, whales, and seals. See spectacular mountains&glacierswhich lunge to the sea. Explore by zodiac, foot & kayak. Simply breathtaking! From $5,995 quad + air BETCHART EXPEDITIONS Inc. AAAS is here – bringing educational infrastructure to the developing world. AAAS is helping the Rwandan government rebuild its educational infrastructure. By providing materials such as the Project 2061 Atlas of Science Literacy, lesson plans from Science NetLinks, and access to Science digital libraries, AAAS is helping the people of Rwanda work toward a future built around science and technology. If you’re not yet a AAAS member, join us. Together we can make a difference. To learn more, visit aaas.org/plusyou/rwanda Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ Human Justice Gilbert Chin DOI: 10.1126/science.333.6046.1073-c (6046), 1073.333Science ARTICLE TOOLS http://science.sciencemag.org/content/333/6046/1073.3 CONTENT RELATED file:/content/sci/333/6046/twil.full PERMISSIONS http://www.sciencemag.org/help/reprints-and-permissions Terms of ServiceUse of this article is subject to the is a registered trademark of AAAS.ScienceScience, 1200 New York Avenue NW, Washington, DC 20005. The title (print ISSN 0036-8075; online ISSN 1095-9203) is published by the American Association for the Advancement ofScience Copyright © 2011, American Association for the Advancement of Science o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/content/333/6046/1073.3 http://www.sciencemag.org/help/reprints-and-permissions http://www.sciencemag.org/about/terms-service http://science.sciencemag.org/ 
work_5hwszkygcnerhoi7zq5sn7rjdy	----	BRITISH MEDICAL JOURNAL VOLUME 291 20 JULY 1985 201~~~~~~~~~~~~~~~~~~~~~~~~ Philosophical Medical Ethics Justice and medical ethics RAANAN GILLON Some argue that medical ethics should have no truck with justice in the sense of fair adjudication between competing claims. Especially in the context of distributing scarce medical resources they take the view that the proper role of doctors is the Hippocratic one of doing the best they can for each patient. Their patients suffer when doctors start to temper this obligation with any conflicting con- siderations of fairness or justice.' I pointed out in my article on beneficence that if doctors chose not to concern themselves with justice in medical practice then inevit- ably others would (and should) so concern themselves. In any case the idea that doctors can somehow legitimately evade any need to concern themselves with justice is hardly tenable given that in the course of their practice they are often confronted with conflicting claims on their resources, even from their own patients. The doctor who stays in theatre to finish a long and difficult operation and consequently misses an outpatient clinic is probably relying- implicitly or explicitly-on some sort of theory of justice whereby he can fairly decide to override his obligation to his outpatients in favour of his obligation to the patient on the table. So is the general practitioner who spends 30 minutes with the bereaved mother and only five with the lonely old lady who has a sore throat. Nor do distributive concerns-the proper allocation of benefits and burdens-exhaust the relevance of justice to medical ethics. In the Arthur case the prosecution was concerned that those who break the law should be punished-an aspect of reparative, retributive, or corrective justice. Forensic psychiatrists, who concern themselves with the sanity or "competence" of clients charged with offences, are concerned with responsibility in the context of reparative justice. The Declaration of Tokyo's absolute prohibition of medical involvement in torture affirms a concept of justice based on rights that forbids certain things to be done to other people even if doing them may be of great social benefit. The General Medical Council, as a quasi court of law, is concerned with specifically legal aspects of justice. Even the selection of medical students or appointment of new medical colleagues concerns justice. So the idea that justice is a moral issue that doctors can properly ignore is clearly mistaken. Aristotle's principle of justice Justice has always been one of the central concerns of philoso- phers, and indeed Aristotle's formal principle of justice is still widely accepted. Aristotle, somewhat hampered by the fact that the Greek word for justice was cognate with the Greek word for equality, was at pains to reject the claims of the democratic factions of Athens, who argued that justice meant equal shares for all (well, for all freemen). In a sophisticated treatment Aristotle distinguished between justice as another term for overall goodness or "complete virtue" and justice in a narrower sense, concerning equality of treatment. Such equality could not be sensibly understood as mere equal division of whatever benefit or burden was being considered, for "the origin of complaints and quarrels [is] when either equals have and are awarded unequal shares, or unequals equal shares."' Instead, argued Aristotle, the equality of justice had to be understood as meaning fair or proportionate treatment. He pointed out that in the latter sense justice was a relative term, in terms of relations both between people and for any one person between what he was owed and what he deserved. Those who deserved the same were owed the same, and in that sense justice required equality of treatment. Those, however, who deserved more were owed more, while those who deserved less were owed less. In both cases, as what they were owed was in strict proportion to their deserts, once again justice required people to be treated equally. The formal principle of justice or equality attributed to Aristotle is, therefore, that equals should be treated equally and unequals unequally in proportion to the relevant inequalities.6 The reason that Aristotle's formal principle remains so widely accepted is, of course, that it has little substantive content. It requires an equality of consideration (for an excellent contemporary analysis of the concept of equality see Bernard Williams's paper The idea ofequality)7; fairness in the sense that conflicts are to be settled by mutually agreed principles of justice (for an account of fairness and fairplay see John Rawls's paper 7ustice as fairness)8; and impartiality in the sense that inequalities9 of treatment cannot be arbitrary-based on mere opinion, preference, or partiality-but must be justified on the basis of, and in proportion to, relevant inequalities9 (for a useful analysis of the concept of moral relevance see R M Hare's paper Relevance'°). These concepts of fairness and impartiality, however, are also formal in that they do not specify the content of the "relevant inequalities" or the agreed principles. Different theories of justice can and do flesh out differently Aristotle's formal principle of justice with its demands for equal consideration, fairness, and impartiality. My somewhat contentious view is that these differences usually arise because priority is given to different moral principles as the basis for assessing people's just deserts. From the wide range of existing theories of justice five important types can be distinguished in this way. Libertarian theories Libertarian theories of justice emphasise that people should be accorded maximal respect for their personal liberty. Such theories usually start from a Lockean social contract designed to protect people's personal rights"-but, unlike Locke's theory, they often emphasise only the last of his natural rights to life, health, liberty, and possessions. The result is what might be called economic libertarianism, stemming from the theories of Adam Smith'2 via those of F A Hayek'3 (and in theory of the present governments of Mrs Thatcher and President Reagan) to that of the contemporary American philosopher Robert Nozik, who has purged these theories of any traces of utilitarian welfare maximising contaminants. Although claiming to base his theory on a defence of Lockean Imperial College of Science and Technology, London SW7 INA RAANAN GILLON, MB, MRCP, director, Imperial College health service, editor, Journal ofMedical Ethics, and associate director, Institute of Medical Ethics BRITISH MEDICAL JOURNAL VOLUME 291 20 JULY 1985 201 o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 8 9 .2 0 1 o n 2 0 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ 202 BRITISH MEDICAL JOURNAL VOLUME 291 20 JULY 1985 natural rights, Nozik concentrates on only two of those rights; the right to life-that is, not to be unjustly killed-and the right to have possessions. Nozik argues that provided people acquire and transfer their "holdings" without violating others' rights no one is entitled to take them away. On that basis he argues that any taxation, beyond what is necessary to maintain the "minimal state" required to protect life and holdings, "is on a par with forced labour."'4 Nozik's arguments have provoked vigorous philosophical response.'5 One of the criticisms is that if the whole spectrum of Lockean rights allegedly of concern to Nozik is to be protected his conclusions against taxation to benefit the poor and sick and otherwise disadvantaged are unsupported by his theory. Utilitarian theories Utilitarian theories emphasise that people deserve to have their welfare maximised. The danger of such theories is that in their simplistic versions they give too little weight to Lockean personal rights, which they are prepared to override whenever to do so is likely to maximise overall welfare. As I have indicated in my articles on utilitarianism and autonomy sophisticated utilitarian theories from Mill onwards have shown awareness of these dangers and have incorporated moral concern for personal liberty (in the sense of autonomy) as a required condition of maximisation of welfare. Professor RM Hare's form ofutilitarianism sees the formal principle of justice as "nothing but a restatement of the requirement that moral principles be universalisable"-a principle that according to Hare is manifested in Bentham's principle that everybody counts for one and nobody for more than one. 6 Marxist theories Marxist theories of justice emphasise that people deserve to have their needs met; people's "deserts" are thus in direct proportion to their needs and Aristotle's formal principle of justice can be met by making needs the relevant inequality. Apart from conceptual problems-What are needs?-Marxist moral theory faces objec- tiJO\ similar to those levelled at simplistic utilitarianism-notably, that other moral concerns, particularly respect for individual autonomy, may be overriden in order to satisfy human needs. The Marxist corollary of "to each according to his needs" is "from each according to his ability," and the operation of this rule, according to Lenin, results in "actual equality."' It is a rule that, again in its simplistic versions, brooks no rejection. ("The communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing conditions."')' Once again we must distinguish between simplistic and sophisti- cated versions, for sophisticated Marxists are undoubtedly aware of the dangers of inadequate concern for individual autonomy or freedom,'9-" and Marx himself sees a community of autonomous people living together in peace, harmony, and true consciousness as the utopian "objective" of the inexorable march of history. Rawls's theory of justice A highly infloiential attempt to blend utilitarian theories and those theories of justice that respect autonomy-and indeed to incor- porate the element of need of Marxist theories-is Professor John Rawls's theory of justice.22 2 As previously indicated, he argues that people coming together to work out a theory of justice for their society, and rendered impartial by the device of a "veil of ignorance" whereby they do not know what role they are to have in that society, would choose a system of justice whose first principle was that people should have the maximal liberty compatible with the same degree of liberty for everyone and whose second principle was that deliberate inequalities were unjust unless they worked to the advantage of the least well off. Reward for merit Finally, the claim that justice is essentially a matter of reward for individual merit-the view, for instance, of W D Ross24-remains plausible in at least some circumstances. For example, all com- petitions based on skill implicitly assume a principle of justice based on merit, including competitions to enter medical schools or obtain medical posts. Athletics competitions presuppose that "the best man (or woman) wins." The structure of wages in a capitalist society, whereby skilled work is rewarded more highly than unskilled work, again presupposes both that skills confer merit and that merit should be rewarded. On the other hand, can all distribution of benefits and burdens be fairly or justly determined on the basis of merit and demerit? In particular, there is no merit in being ill: should medical resources be allocated according to merit rather than illness? So varied and so complex are theories of justice that more than with the other moral principles it would be hopeless even to suggest a generally acceptable substantive position. Instead it seems more useful to acknowledge that people's theories of justice are likely to continue to differ, I suspect largely on the basis of the relative weights they assign to the moral principles I have already outlined -that is, respect for autonomy, beneficence, and non-maleficence. I shall next look at allocation of scarce medical resources in the context of these various substantive theories of justice and in the light of Aristotle's formal principle of justice, which is implicitly accepted by them all. References I.csitskv NG. 'lThe doctor's master. AN Engl.7 Aled 1984;31 1:1573-5. 2 Kempcrman CJF. Clinical decisions. Lancet 1982;ii: 1222. 3 I'arsons V, Lock P. Triage anid the patient with renal failure. 7 Med Ethics 1980;6:173-6. 4 Macara S, reported by Edwards S. No room for triage in NHS. Medical Newvs 1983; 15-22 Dccember:27. 5 Aristotle. Nicomacheatt ethics. 1131a:22-5. 6 Aristotle. Nicomtacheatt ethics, Book 5 and Politics, Book 3, Chapter 9. 7 Williams B. 'The idea of equality. In: Williams B, ed. Problems of the self: Cambridge: Cambridge University Press, 1976:230-49. 8 Rawls J. Jtistice as fairness. 7he Philosophical Review 1958;67:164-94. 9 Benn S. Justice. In: Edwards 1', ed. The encyclopedia of'philosophy. New York, London: Collier Macmillan, 1967:298-302. 10 Hare RM. Relevance. In: Goldman Al, Kim J, eds. V'alues and morals. Dordrecht: Reidel, 1978:73-90. 11 Locke J. Second treatise on government. 1690. Chapter 2; section 6. 12 Smith A. 7'he wvealth of nations. 1776. 13 Hayek F. Ittdividualism and economic order. Chicago: Chicago University Press, 1948. 14 Nozik R. Anarchv, state, and utopia. Oxford: Blackwell, 1974:169. 15 Plaul J, ed. Reading Nozik. Oxford: Blackwell, 1981. 16 Hare RM. Moral thiniting: its levels, method atnd point. Oxford: Clarendon Press, 1981:147-68. 17 Lenin VI. The state and revolution. Moscow: Progress l'ublishers, 1972:91. 18 Marx K, Engels F. Manifesto of the Communist Party. In: Hobsbawm EJ, ed.The age oJ revolutiott. London: Cardinal/Sphere, 1973:285. 19 Marcuse H. Freedom and the historical imperative. In: Marcuse H, ed. Studies in critical philosophv. London: Verso/NLB, 1972. 20 Kamenka E. Marxism and ethics. London: Macmillan, 1969. 21 Bottomore '', ed. A dictionarv oJ Marxist thought. Oxford: Blackwell, 1985. 22 Rawls J. A theory ofjustice. Oxford: Oxford Univesity Press, 1976. 23 Daniels N, ed. Reading Rasvls. Oxford: Blackwell, 1975. 24 Ross WD. The right and the good. Oxford: Clarendon Press, 1930:26-7. Bibliography Bcauchamp 'I'L. Justice. In: Beauchamp rL, ed. Philosophical ethics: an introduction to moral philosopkv. New York: McGraw-Hill, 1982:219-58. President's Commission for the study of ethical problems in medicine. Securing access to health care. Washington: US Government Printing Office, 1983. Campbell AV. Medici,ne, health and justice-the problent of pnronrties. Edinburgh: Churchill Living- stone, 1978. Correction Outbreak of poliomyelitis in Finland In the fourth paragraph of the CDSC Report "Outbreak of poliomyelitis in Finland" (6 July, p 41) line 7 (p 42) should have read "regular Salk type trivalent poliovirus vaccine for all children under the age of 18 years." The total number of cases was larger than six. The full details of the outbreak will be published by the Finnish investigators later. We apologise for this error. o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 8 9 .2 0 1 o n 2 0 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ 
work_5jejxielurg47lblqdagudvsii	----	Food justice for all?: searching for the ‘justice multiple’ in UK food movements Vol.:(0123456789)1 3 Agriculture and Human Values (2021) 38:43–58 https://doi.org/10.1007/s10460-020-10142-5 Food justice for all?: searching for the ‘justice multiple’ in UK food movements Helen Coulson1  · Paul Milbourne1 Accepted: 12 August 2020 / Published online: 19 August 2020 © The Author(s) 2020 Abstract In this paper, we examine diverse political philosophical conceptualisations of justice and interrogate how these contested understandings are drawn upon in the burgeoning food justice scholarship. We suggest that three interconnected dimensions of justice—plurality, the spatial–temporal and the more-than-human—deserve further analytical attention and propose the notion of the ‘justice multiple’ to bring together a multiplicity of framings and situated practices of (food) justice. Given the lack of critical engagement food justice has received as both a concept and social movement in the context of the United Kingdom (UK), we draw upon empirical research with practitioners and activists involved with heterogenous food movements working at the local, regional and national level and apply the justice multiple concept to the interview data. We highlight the diverse ways that justice is discussed in terms of access, fairness, empowerment, rights and dignity that reflect established organisational discursive framings and the fragmented nature of food system advocacy and activism. Based on this insight, we argue that a plurivocal, relational conceptualisation of socioecological justice can help enhance the multiple politics of food justice, pluralise UK food movement praxis and nurture avenues for broader coalition-building across the food system. Keyword Food justice · Food movements · Justice · Justice theories · Right to food Abbreviations GMO Genetically Modified Organisms NGO Non-Governmental Organisation UK United Kingdom US United States Introduction The notion of food justice has increasingly been evoked by various civil society groups as a powerful mobilising con- cept in the United Kingdom (UK) context. This has primar- ily occurred as a direct consequence of the ongoing impacts of austerity and welfare reform which has witnessed the proliferation of hunger and poverty (Just Fair 2014; O’Hara 2014; Nourish Scotland and the Poverty Truth Commission 2018; End Hunger UK 2019; MacLeod 2019; Raj 2019). However, despite this recent intensification of the politici- sation of food-related inequities, we argue that ‘justice’— as a contested idea and practice—in food justice deserves far greater critical scholarly and activist attention by those involved with heterogenous UK food movements.1 Indeed, the ways in which food justice is deployed in the UK have evaded critical scrutiny (however, see Tornaghi 2016; Kneafsey et al. 2017; Herman and Goodman 2018; Mama D and Anderson 2018), particularly the complex translation politics of drawing upon a concept that has deep situated roots in environmental and social justice movements of the United States (US). This raises the potential issue of misla- belling food-related activities that neglect addressing class and racial injustice (Slocum 2018) or stretching the concept to empty signifier status when applied to different contexts (Heynen et al. 2012), which can ultimately depoliticise activ- ism and stymie marginalised voices. While justice is open to multiple interpretations, food jus- tice activism in the US has placed racial equity and racial justice (rooted in civil rights and environmental justice * Helen Coulson coulsonh1@cardiff.ac.uk Paul Milbourne milbournep@cardiff.ac.uk 1 School of Geography and Planning, Cardiff University, Glamorgan Building, King Edward VII Avenue, Cardiff, Wales CF10 3WA, UK 1 The phrase ‘food movement’ is utilised to designate the multiplic- ity of activists, practitioners, alternative food initiatives and coalition networks working to address diverse food system issues such as envi- ronmental sustainability and food (in)security. http://orcid.org/0000-0002-3082-2377 http://crossmark.crossref.org/dialog/?doi=10.1007/s10460-020-10142-5&domain=pdf 44 H. Coulson, P. Milbourne 1 3 struggles) at the heart of its praxis (Alkon and Norgaard 2009; Alkon and Agyeman 2011; Myers and Sbicca 2015; Reynolds and Cohen 2016; Penniman 2018). Critical race theory has been central in grounding ideas of (abstract) jus- tice through an intersectional analysis (of class, race, gender, (dis)ability and sexuality) that contextualises processes of domination and resistance within a broader socio-histori- cal framework (Alkon and Agyeman 2011; Agyeman and McEntee 2014; Cadieux and Slocum 2015; Penniman 2018). Food justice scholar-activists/activist-scholars therefore start from the position of a normative commitment to justice that emphasises the necessity of reconfiguring socioecological relations and enacting structural change, while acknowledg- ing that how justice is articulated and utilised will reflect place-based grounded concerns (Cadieux and Slocum 2015) often occupying a spectrum ranging from ‘progressive’ to ‘radical’ approaches (Holt-Giménez and Shattuck 2011). The ongoing tensions between the emancipatory potential of food justice activism and neoliberal constraints have been widely documented, particularly the tendency of food move- ments to prioritise entrepreneurial, market-centric strategies for social change (Alkon 2014). Furthermore, the over-reli- ance on volunteerism, self-exploitation and grant funding, and the reproduction of (race, class and gender) privilege within community groups and food justice organisations have been extensively critiqued (see, for example, Guthman 2008; Alkon and Mares 2012; McClintock 2014; Montalvo 2015; Broad 2016). In the UK, there is a long and vibrant history of social justice activism led by marginalised groups tackling inequal- ity, poverty and injustice, in which food has often played an important role (Sutton 2016). While actually existing food movements are multifaceted, fluid and fragmented with diverse and frequently contrasting priorities, contemporary UK food-related issues have been approached through two broad avenues. First, those engaging with food politics have gravitated towards the (re)connections between food produc- tion and consumption through various food ‘qualities’ (such as local, slow and organic) often related predominately to health and environmental sustainability objectives (Kneaf- sey et al. 2017). Consequently, mainstream environmentally- orientated food activism in the UK has tended to be domi- nated by white, middle-class consumers concentrating on the development of local food systems and individualised consumptive logics of social change that reinforce social privilege and fail to address the underlying structural causes of food injustice (Paddock 2016). Second, issues of food poverty since the 2007–8 finan- cial crisis have been framed through a predominately social welfare lens, focusing on food insecurity (Dowler and Lam- bie-Mumford 2015) and the contested spaces of food banks (Williams et al. 2016). Growing attention has been placed on the underlying issues driving people towards food charity (cf. Poppendieck 1998; Caraher and Furey 2018; MacLeod 2019), principally income inequality, the rising cost of liv- ing and punitive welfare restructuring (which has reduced social security entitlements and intensified conditionality) under the “alchemy of austerity” (Clarke and Newman 2012, p. 300). The cross-cutting nature of food and the stark ‘vis- ibility’ of food poverty in contemporary UK society has acted as a catalyst for anti-hunger activism to increasingly frame its advocacy through a (rights-based) social justice, rather than charity, framework (End Hunger UK 2019). However, despite calls to develop integrated socioecological approaches to food system problems (Holt-Giménez 2011), in practice tensions persist between anti-hunger activism (focusing primarily on social justice concerns) and ‘alter- native’ food movement practices (which prioritise environ- mental sustainability issues), thus impeding the possibilities of nurturing food justice for all. The aim of this paper is to examine through an explicit pluralised justice lens the heterogenous actually existing forms of everyday food activism and advocacy in the UK. We do this by uncovering and bringing into conversation diverse voices of people working to address various inequal- ities throughout the food system and unpack the ideas of jus- tice which underpin their work. This is significant, as the uti- lisation of a particular theory of justice to frame food system inequalities can open up or foreclose other ideas, visions and practices for emancipatory change (see Allen 2010; Harrison 2014; Dieterle 2015; Broad 2016). Informed by US food justice literature (Alkon and Agyeman 2011; Cadieux and Slocum 2015; Alkon and Guthman 2017; Sbicca 2018), we aim to identify the fusion and friction points in nurturing a multiscalar, reflexive and politicised UK food justice move- ment that addresses structural processes of power, privilege and oppression (Young 1990; Fraser 2008). It is hoped that this intervention will ignite a lively debate about the politics of UK food justice amongst scholar-activists, organisers, eat- ers and workers in the context of manifold contemporary socioecological crises that are produced or exacerbated by the global, industrialised food system. The paper begins with a critical examination of the politi- cal theory of justice whereby consideration is given to three key dimensions—plurality, spatial–temporal and more-than- human—to elucidate the depth and breadth of the concept. We examine how these conceptualisations of justice have been utilised in the established food justice literature and argue for greater critical engagement to expand further the geographies, scales and subjects of food justice. We then proceed to present the empirical material of the paper, pay- ing particular attention to how ‘justice’ is articulated and deployed by activists and practitioners working across the food system drawing upon 30 in-depth interviews. The final section of the paper critically reflects on what is gained or lost by adopting a broader (or plurivocal) ‘justice multiple’ 45Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 approach to food justice praxis and outlines avenues for future research. Interrogating political theories of ‘justice’ in food justice Recent calls for greater clarity in relation to how food jus- tice is conceptualised and practiced (Sbicca 2012; Cadieux and Slocum 2015) highlights the importance of bringing food justice into conversation with diverse literature from political philosophy that critically engages with the con- tested notion of justice (Dieterle 2015; Barnhill and Doggett 2018). In this section, we unpack three broad dimensions of justice – plurality, the spatial–temporal and the more-than- human—which we argue are crucial to expand, deepen and enrich the ways justice is conceptualised and intersects with food system issues. As Dixon (2014, p. 175) states, learning to enact food justice first necessitates that the lens of justice is attuned and refined in order to “see”, unpack and address multiple forms of inequality. We therefore conclude this section by advancing the notion of the ‘justice multiple’ to incorporate a diversity of justice framings, which are shaped by various spatial, temporal and scalar relations, to provide a basis to examine the heterogenous justice claims of UK food movement practitioners and activists. Pluralising justice: distribution, recognition, participation and enhancing capabilities In order to carefully consider the fundamental justice prin- ciples that inform the conceptual foundation of food justice, we begin by discussing the central dimension of distributive justice. Broadly speaking, the majority of Western liberal political philosophical writing on justice has been preoc- cupied with the notion of distributive justice in relation to the allocation of benefits and burdens between different indi- viduals and groups, with focus placed on (abstract) fairness and impartiality. In this context, social justice is defined as the “standard whereby the distributive aspects of the basic structure of society are to be assessed” (Rawls 1971, p. 9). The importance placed on distributive elements of food jus- tice is demonstrated by the definition put forward by Got- tlieb and Joshi (2010, p. 6) in their seminal scholarly text, as “ensuring that the benefits and risks of where, what, and how food is grown and produced, transported and distributed, and accessed and eaten are shared fairly”. Given the complex- ity and intersectional nature of oppression that permeates food systems entangled with neoliberal capitalism, systemic racism and heteropatriarchy, scholar-activists contend that addressing distributional injustices in isolation (frequently framed in terms of ‘access’) is insufficient to tackle com- plex food inequalities. Therefore, relational difference and politicised actions that are transformative of oppressive structures must be positioned at the heart of food justice (Cadieux and Slocum 2015; Sbicca 2018; Slocum 2018). This underscores a more pluralistic, embodied and less uni- versalistic notion of justice. Political theorists who have critically examined the plu- rality of justice, such as Young (1990), Fraser (1997, 2008), Schlosberg (2007) and Sen (2009), have drawn heavily upon the praxis of social movements to develop their respective theories of justice by observing the complex relations of oppression and processes of inequality that contextualise our lifeworld, rather than relying on depersonalised idealised abstraction. This vividly highlights the symbiotic relation- ship between multidimensional justice theory and diversi- fied social movement practice. Drawing upon the embodied justice claims of marginalised groups, Fraser (2005, 2008) understands justice as parity of participation, incorporat- ing three dimensions: redistribution (socioeconomic), rec- ognition (cultural-legal) and representation (political). This framework corresponds to the questions of what counts as a matter of justice, who counts as a subject of justice, and how justice claims are defined and determined. Similarly, Young (1990) advocates for a theory of justice grounded in the everyday practices of emancipatory social movements that endeavour to tackle systems of oppression. For Young (1990, p. 37), oppression is defined as “the institutional con- straint on self-development” and is characterised by “five faces”: exploitation, marginalisation, powerlessness, cultural imperialism and violence—all of which need to be addressed in relation to the food system to create more just and socio- ecologically sustainable relations (Slocum 2018). The work of Fraser (1997; Fraser and Honneth 2003) is particularly important for explicating the politics of recog- nition—a traditionally under-theorised dimension of justice in political theory. Fraser (1997) contends that recognition is both an important dimension of justice and a prerequisite for fair distribution, in which misrecognition (or lack of respect) is structural, social and symbolic—that is, a cultural and institutional form of injustice, or a “status injury”. In the context of food systems, recognitional injustices are ren- dered visible in the ways in which indigenous communities and marginalised groups have been historically subjected to cultural and political domination, discrimination and disre- spect that disrupts or devalues traditional foodways (Mares and Peña 2011). Addressing such issues requires commu- nities to exercise their right to determine their own food systems through collective leadership and participation in decision-making processes (Penniman 2018), challenging the norms and practices that (re)produce and legitimise ine- quality (Fraser and Honneth 2003) and nurturing political consciousness—or conscientisation (Freire 1970) – through critical food systems education that respects diverse knowl- edge systems. 46 H. Coulson, P. Milbourne 1 3 Procedural or participatory justice (Loo 2014) is therefore crucial, as mere inclusion in decision-making processes is not enough—emancipatory strategies are needed to empower citizens, and in particular, the most marginalised commu- nities. As Young (1990) has posited, in order for a policy to be just everyone in principle should be able to express their needs and have an effective voice in its deliberation. However, the traditional processes of formulating food and agricultural policy, particularly in the UK, and the Euro- pean Union more broadly through the Common Agricultural Policy, have been highly asymmetrical, reflecting the vested interests of agribusiness (Lang et al. 2009). Procedural jus- tice, therefore, emphasises the importance of participatory policy-making and democratic governance that enables the most marginalised to challenge elite control over policy development and pluralise the voices that shape (food) gov- ernance processes.2 Collectively, these diverse justice insights (Young 1990; Fraser 1997, 2008; Loo 2014) provide the foundation for a pluralised conceptualisation of food justice, which is not based on the top-down application of abstract norms, but enacted in situated contexts in response to multidimensional, embodied injustices. Elucidating this point further, pragmat- ically focusing on addressing what Sen (2009, p. ix) terms remediable injustices in our everyday lives, does not rely on constructing a theory of “perfect justice” to evaluate unjust institutional and social relations. Rather, realising justice entails identifying and addressing inequalities “around us which we want to eliminate” (Sen 2009, p. vii). Indeed, any ideals of justice (however framed) need to be practiced (or performed) often in messy, ongoing, quotidian ways that seek to heal and repair in our imperfect world. Developing the “capabilities approach” to justice, Sen (1999) argued Rawls (1971) ultimately failed to acknowl- edge that people are unable, for multiple reasons, to trans- late available primary goods into actual welfare-enhancing opportunities. Justice, therefore, requires bolstering basic entitlements and capabilities (in terms of resources, free- doms, opportunities and institutions) that people require to be full members of society. While the state clearly plays a key role ensuring that citizens have the capabilities to live meaningful lives, it is posited that the capabilities approach can strengthen rights-based frameworks of justice by moving focus away from ‘rights’ understood as simply abstract, for- mal, legal entitlements towards the ways in which grassroots collectives exercise those rights in everyday, situated prac- tices. This reflects a “human rights enterprise” from below (Armaline et al. 2015, p. 14) through interconnected trans- local micro-resistances. In this respect, forging cooperative relations of solidarity with those in other localities is crucial in order to create multiscalar geographies of food justice to nurture trajectories for socioecologically just futures. In the next section, we explicate the multiscalar spatial and tem- poral dimensions of justice in greater depth. Expanding justice across space and time: global duties, obligations to distant others and intergenerational rights The Westphalian conceptualisation of justice embodied in the work of Rawls has been critiqued for problematically focusing exclusively on the nation-state to the detriment of a multiscalar justice perspective (Caney 2005; Fraser 2005, 2008). Several theorists have argued for extending the Rawl- sian conception of justice as fairness beyond state borders (Pogge 1989) to account for the contemporary realities of intensified globalisation and pervasive worldwide poverty to determine our duties and obligations of justice in relation to principles of global distributive justice (Pogge 2002). This tends to appeal to the basic liberal idea that all humans hold the same moral worth and value. Accordingly, our justice obligations transcend socially constructed territorial bounda- ries (Caney 2005), in which our embeddedness within glob- ally interconnected social structures creates an interdepend- ence of shared political responsibility to address injustices (Young 2011). As Fraser (2008) argues, however, focusing merely on distributive (global) justice fails to comprehend the diverse dimensions and competing geographical scales of justice that entangle ‘global’ and ‘local’ ordinary-political injus- tices. Thus, any multiscalar understanding of justice must take into account the relational ways (in)justice is produced and performed across various spatial “power geometries” (Massey 1994). Food justice is consequently always a matter of sociospatial justice which requires “new ways of thinking about and acting to change the unjust geographies in which we live” (Soja 2010, p. 5). Food justice praxis therefore implicitly recognises the inherent multiscalar sociospatial organisation of food systems and the complex translocal power relations that shape (fluid) foodscapes in which injus- tice is always experienced in situated contexts by particular communities (Slocum et al. 2016). To be sure, the “scales of spatial justice are not separate and distinct; they interact and interweave in complex patterns” (Soja 2010, p. 46). Con- necting different ‘local’ issues of food (in)justice can con- tribute to the advancement of collective justice by scaling up and across efforts at the institutional level of (food) policy and strengthen coalition networks at multiple scales (Sbicca 2018). This requires (re)focusing attention to shared experi- ences of structural inequality, moving beyond what Harvey 2 A People’s Food Policy is an interesting example of an integrated and people-centred approach to grassroots participatory food policy- making within the UK context (see https ://www.peopl esfoo dpoli cy.org/). https://www.peoplesfoodpolicy.org/ https://www.peoplesfoodpolicy.org/ 47Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 (1996, p. 40) termed “militant particularisms”, and con- structing pluralistic and heterogeneous coalitions between diverse organisations and social movements across space. However, compared to the multiscalar food sovereignty movement (under the auspices of La Vía Campesina), food justice activism has tended to place less explicit emphasis on translocal solidarity processes for global justice (Slocum 2018). Against this backdrop, it is asserted that linking multi- scalar environmental sustainability concerns with other justice issues such as labour precarity and workers’ rights is central in order to create an effective transnational food justice movement (Myers and Sbicca 2015; Slocum et al. 2016; Sbicca 2018). The necessity to cultivate this form of integrated solidarity-building exists within a broader neo- liberal political-economic context of the intensified pursuit of global labour ‘flexibility’, income insecurity, workfare policies and the fragmentation of social entitlements (Ciplet and Harrison 2020). Thus, the push for greater focus on the multiscalar sociospatial relations of translocal solidar- ity (Slocum et al. 2016) is crucial given that food justice scholarship draws heavily on discrete ‘local’ food projects predominately in urban contexts of the US to develop its insights (Glennie and Alkon 2018), rather than the intercon- nected relationality of place (Massey 1994) and the multi- scalar power-geometries of food systems. The latter of which deserves far greater critical scrutiny. Crucially, our justice obligations also extend across time looking both to past injustices to challenge historical trauma and forward with regard to future generations (Cadieux and Slocum 2015; Penniman 2018). Debates regarding inter- generational justice have unfolded in political philosophy in relation to the possibility of extending rights to future peo- ple in the context of the “non-identity problem” (see Parfit [1984] 2004). Political theorists have, therefore, increasingly advocated for a more critical and fundamental focus on the creation of intergenerationally just policies (Schuppert 2011) that safeguard peoples fundamental interests, liberties and needs across temporalities.3 The extension of egalitarian jus- tice to future generations can be seen as a logical result of cosmopolitan intragenerational justice theorists who argue that people’s location in space should not restrict our justice obligations (Caney 2005); accordingly, people’s position in time is equally arbitrary (Caney 2009). These insights con- textualise the complex intra-/inter-generational justice issues that emerge at the socioecological intersection of a climate emergency and unsustainable food systems. As the concept of sustainability is inherently normative, what should be sustained for future generations reflects dif- ferent situated values, and consequently, is highly contested. The notion of “just sustainabilities” (Agyeman et al. 2003) emerged in relation to the environmental justice movement and has been instrumental in explicitly politicising sus- tainability by emphasising the necessity of simultaneously working towards social justice and environmental sustain- ability. While the movement has transcended narrow lib- eral Rawlsian interpretations of distributive justice (Walker 2009), justice continues to be predominately conceptualised in primarily anthropocentric terms. In this respect, the work of Pellow (2014) is important in extending the environmen- tal justice framework to incorporate nonhuman actors and directing focus towards socioecological inequality across species and space. In the following section, we outline recent developments in political theory that have incorporated the more-than-human in relation to justice and highlight current food justice scholarship that is engaging with, and develop- ing, these debates in interesting ways. Extending justice to the more‑than‑human: posthuman social justice and nonhuman vitality The conceptual separation of ‘nature’ from ‘society’ has shaped anthropocentric framings of justice that posit the social in humanistic terms that disregards nonhuman (political) agency (Latour 2005). Thus, several scholars have worked to incorporate nonhuman concerns into justice frameworks. For example, Schlosberg (2007) has argued for expanding the capabilities approach (Sen 1999; Nussbaum 2000, 2006) to the more-than-human by recognising the interconnected injustices experienced in complex relational ecologies that impede the basic capabilities and functioning of animal and plant life. Moreover, ecological justice (Baxter 2005) highlights the complex ethical and moral questions that emerge when considering nonhumans as subjects of justice. This links with the systems thinking and integrated ethical framework of earth care, people care and fair share embodied in permaculture (Holmgren 2011), which provides a socioecological lens to articulate the ecological dimen- sions of our understanding of social justice (Millner 2017). Indeed, recent developments in food justice scholarship have increasingly highlighted that justice-orientated claims, such as the right to food, requires operating from the position of the inextricably socionatural world we inhabit relationally with a multiplicity of others, whereby food is “constituted through material histories of human and nonhuman collabo- ration” (Millner 2017, p. 780). Unlike moral philosophy (see Singer’s 1975 classic text), Western political philosophy has largely failed to reflect crit- ically in relation to humanity’s pervasive sense of “species entitlement” (Kymlicka and Donaldson 2016, p. 692), and 3 The Well-being of Future Generations (Wales) Act (2015) is notable for enshrining in legislation the obligation of public bodies in Wales to place sustainable development and the consideration of the long- term impacts of decision-making on current and future generations, at its core. 48 H. Coulson, P. Milbourne 1 3 therefore, ascertain obstacles to improve justice for animals (however, see for example, Nussbaum 2006; Donaldson and Kymlicka 2011; Garner 2013). Political philosophy has tended to hold that nonhuman animals do not directly place justice demands on us, despite their ethical standing (Plunkett 2016). While Nussbaum (2006) endeavoured to extend the capabilities approach embodied in her cosmo- politan theory of justice to nonhuman animals and intermit- tently discusses the possibility for “interspecies sociability”, ultimately an anthropocentric understanding of the demos is maintained (Pepper 2016). Disrupting pervasive anthro- pocentric imaginaries of ‘the political’, as Kymlicka and Donaldson (2016) argue, involves asking difficult questions in relation to the potential political status of non-linguistic agents (such as sentient nonhuman animals) in terms of voice, participation and agency. Food justice scholarship, however, has generally remained conspicuously silent on how interspecies sociability can inform broader conceptions of justice in relation to food systems (however, see Millner 2017; Perz et al. 2018; Rodríguez 2018; Broad 2019). Bringing food justice into conversation with critical ani- mal studies provides one productive terrain to focus attention to the intersectionality of all forms of oppression includ- ing sexism, speciesism and racism (Pellow 2014; Perz et al. 2018). Unpacking the more-than-human forms of injustice embedded in the “animal-industrial complex” (Twine 2012, p. 15) that exploits animals for purposes of corporate capi- tal accumulation and the differential ecological and social inequalities that emerge from such a system, provides one avenue to expand understandings of food justice to nonhu- mans. In short, it is contended that in order to hold food justice activism accountable on the ‘justice’ dimension, working towards equitable and sustainable food systems must secure justice for humans and nonhumans (Rodríguez 2018). Recent work by Broad (2019, p. 225) in relation to the intersection of animal product alternatives and food jus- tice – what he terms “food tech justice” – provides an inter- esting (albeit contested) example of one agenda that seeks to explore the possibilities for “food system health, equity, and sustainability” beyond animal agriculture. Food systems, therefore, provide a pertinent, embodied and vital lens to examine how we can/do/do not live respon- sibly in multispecies worlds at various ‘contact zones’—the places where species meet (Haraway 2008)—such as agri- food systems. Drawing upon insights from new material- ism (Bennett 2010; Coole and Frost 2010), scholars have argued that taking the agency or vitality of nonhumans seriously (Plumwood 2001)—for example, by exposing the more-than-human agencies of soil in the politics of food systems—is crucial in order to foster more just and sustain- able socioecological relations (Ferguson and the Northern Rivers Landed Histories Research Group 2016). This creates new political terrains for social transformation beyond the nature/society dichotomy in ways that expand the parameters of justice to nonhuman life. To summarise, encouraged by Schlosberg’s (2007, p. 165) insight that “a plurality of discourses of justices is a good thing” and informed by scholar-activists who argue for a multifaceted justice lens (Sbicca 2018), in this paper we posit that plural, spatial–temporal (or intra-/inter-gener- ational) and more-than-human conceptions of justice should be more robustly examined and fully integrated into food justice praxis. This can inform broader diverse “counter narratives” (Dixon 2014, p. 175) that expand the who and what of food justice claims and activism, and nuance how they are defined and determined (Fraser 2008), and there- fore, what interventions are enacted to address “remediable injustices” (Sen 2009, p. vii). Accordingly, an understanding of the justice multiple (cf. Mol 2002) that focuses on the diverse everyday practices, experiences and understandings that are constitutive of human and nonhuman justice is use- ful for examining the manifold and competing rationales that shape who participates in deciding what a just food system looks like and how it can be engendered, across both space and time. Indeed, what is ‘fair’ or ‘just’ in relation to food sys- tems is not complete, consistent or culturally universal, but instead always partial, situated and contextually embedded, reflecting diverse values, normative ideals and priorities (Harrison 2014). Thus, in this paper we examine how food justice is interpreted, mobilised and enacted by different actors involved with heterogenous UK food movements by applying the justice multiple lens. This is crucial, we argue, given that compared to North American food studies litera- ture (see, for example, Guthman 2008; Allen 2010; Holt- Giménez 2011; Holt-Giménez and Shattuck 2011; Broad 2016; Sbicca 2018), there is a notable paucity of critical food justice scholarship unpacking the contested terrain of UK food movements and their justice claims, which this paper seeks to address. Researching conceptualisations of justice in UK food movements The empirical section of this paper draws upon the find- ings from 30 in-depth semi-structured interviews with food movement practitioners and activists working at the local, regional and national levels across the UK. Relatively few groups explicitly frame their work as ‘food justice’ in the UK, and therefore, participants were identified through a web-based search of diverse food-related advocacy groups, non-governmental organisations (NGOs), and coalition net- works that are working to address various (social, economic, and environmental) injustices in the food system. A database of potential organisations was compiled based on a search of 49Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 key topics, including food access, food poverty, food policy, land use, labour/work, and alternative food practices. This search captured a range of activities, projects and initiatives, concerning food security, environmental sustainability, ani- mal welfare, and labour struggles within the food chain. Fur- thermore, multiple alternative food practices were identified that focus on different aspects and (contested) qualities of food such as local, organic, slow, non-genetically modified organisms (GMO) and cruelty-free. The main aim of the interviews was to discern what activists and food movement practitioners4 mean when they employ the concept ‘justice’ in relation to their work, and therefore, examine how different theories of justice are utilised to shape social action. Thus, interviews cen- tred upon the meaning, relevance and content of the term ‘justice’ in relation to participants’ advocacy and everyday practices. The interviews were undertaken from February to August 2018 and each lasted between 60 and 95  min and were audio-recorded and transcribed verbatim. Of the 30 people interviewed, 12 were women and 18 men with the majority White-British, highlighting the intersectional privilege that permeates mainstream food movements. The transcripts were analysed through two rounds of thematic coding, the first to identify key themes and ascertain ideas of justice explicitly or implicitly articulated in the narratives, and the second, to refine codes related to aspects of justice identified in the literature review: redistribution, recogni- tion, participation, capabilities, spatial (intra-generational), temporal (inter-generational), and more-than-human. The following results section is structured around the different justice themes that emerged from the analysis based on the expanded conceptualisation of the justice multiple. Quota- tions from the interviews5 are utilised to highlight the central issues and topics uncovered from the research. Examining justice in UK food movements Pluralising justice through rights‑based approaches to food The global food and financial crisis of 2007–8 was identified by the majority of participants as the catalyst for increased practitioner and activist interest in contemporary food sys- tem inequalities. For some anti-hunger organisations, the very presence and prevalence of emergency food aid projects and charitable welfare provision signifies a fracturing wel- fare system that no longer provides security for those who need it (Poppendieck 1998). This was articulated in relation to a broader critique of the current ‘austere’ political-eco- nomic context, which is fundamentally “unfair and broken” (practitioner, national food NGO; see also O’Hara 2014; Raj 2019). Yet, for those involved with charitable food projects on the ground, their everyday focus was aligned to increas- ing access to food to meet an immediate need drawing pri- marily on notions of distributive (in)justice that emphasise the unfair allocation of material foodstuffs. As a manager of a franchised food bank located in the north east of England explained, their priority was addressing acute experiences of food insecurity: “we are a first responder in many ways for that food crisis”. For some interviewees, it was much easier to identify an apparent lived form of remediable injustice (Sen 2009) such as a lack of access to food and respond to it through everyday acts of kindness, collective action or voluntarism, which they believed did not necessarily reflect expressions of ‘justice’. Several practitioners explained that, in their experience, communities were often averse to frame or communicate inequalities explicitly in terms of (in)justice, as a policy director for a human rights and social justice charity stated, “because it is perceived as very confrontational and elit- ist, perhaps legalistic”. It was proposed that the notion of fairness is much more intuitive, compared to framing food inequalities as a violation of human rights. Some practition- ers, therefore, argued that people should be empowered as “rights holders” (campaigns manager, social justice charity) to demand access to food and a range of other entitlements as central to living a nourished and dignified life. However, as a community activist involved with a grassroots food project stated, there is a need for a “change in culture” in how we communicate food inequalities, whereby people feel comfortable to connect and articulate food issues to vital matters of social (in)justice (Raj 2019). For those who focused on justice, rather than the food dimension of food injustice, a lack of economic rather than physical access was conveyed as the crucial factor that impeded food security. Notably, precarious employment opportunities, in-work poverty and punitive austerity poli- cies that underpin economic injustice were described as an inhibiting factor encumbering peoples participation in an ‘alternative’ food movement that continues to fetishize the commodification of food for profit (Agyeman and McEn- tee 2014). As a chief executive for a national food NGO discussed, in practice “there is a gap between the local and sustainable or seasonable produce [sector] and access for low income communities […] the sustainable food move- ment in Britain is just so small and niche that it struggles to provide that food at an affordable price point that’s acces- sible to most people”. This creates a schism between the 4 We use the term ‘practitioner’ to denote a paid employee of a NGO or alternative food initiative and ‘activist’ when utilised by the indi- vidual as a self-ascribed identifier. 5 As participants continue to play an active role in UK food move- ment politics they are anonymised to ensure confidentiality. 50 H. Coulson, P. Milbourne 1 3 priorities of projects focusing on the immediate provision of food and the ‘alternative’ consumptive politics that domi- nates environmental sustainability movements that typically discussed their social action as “reconnecting production and consumption in sustainable ways” (farmer, community- supported agriculture scheme). In terms of the latter, food movement practitioners involved with organisations and projects focusing on the creation of localised food systems tended to emphasise mainstream environmentalism priorities and overlooked or downplayed social justice considerations. For organisations and networks that adopted an explicit food justice frame (who remain a small and fragmented minority in the UK), connecting distributive, participative and recognitional (in)justice was crucial in order to move beyond a narrow focus on food access to incorporate “indi- vidual and community empowerment, dignity and political representation to [develop] the more collective right to a fair food system” (campaigns manager, food justice organi- sation). This is imperative in a highly unequal society in which differences in power and recognition exclude the most marginalised from decision-making processes, as a director of a permaculture NGO stated: “where’s the political voice of those one and a half million people using food banks?”. As described by an activist involved with a grassroots food policy movement, creating a holistic framework to convene multiple interests as they relate to food is vital for exploring fusion and friction points for developing solidarity towards food justice: “How do you find the thread that links people who are using a food bank with a farmer who might also be in destitution and on the brink of having to sell up? There’s actually a certain sort of commonality between them”. In this context, identifying the structural causes of inequal- ity (re)produced by the political economy of food, enables diverse groups to acknowledge shared injustice; particularly the corporate food regime that entangles neo-productivist logics of agricultural intensification, the commodification of the commons (such as seeds) and promotes institutionalised food aid, which constructs food poverty as a matter of indi- vidualised scarcity, rather than systemic inequity. The notion of ‘empowerment’ in terms of how it is expressed, enacted and experienced in food-related grass- roots initiatives provides a particularly contested terrain for addressing participative, recognitional and representa- tional injustice. For example, when critically reflecting on their involvement in advocacy tackling food poverty, an empowerment programme officer for an anti-poverty pro- ject commented: Are you truly empowering people? Or is it just a con- sultation that actually decisions have already been made? […] Overall, it is giving a stronger voice to those with experiences in food poverty, and under- standing that they’re the real experts, in terms of the actual injustices on the ground […] people growing up in poverty are those who are continuously disem- powered. This participant emphasised the intersecting axes of dif- ference (such as class, gender and (dis)ability) that contex- tualise the accumulated quotidian, embodied processes of disempowerment that some people experience over their life-course, which can have significant long-term detrimental impacts on their mental and physical health, and reinforce participatory injustice. Some NGOs have, therefore, devised strategies to nurture grassroots discussions of rights-based approaches to food justice, for example, organising partici- pative workshops with those most absent from food sys- tem discussions, as a coordinator of a civil society coalition working for food justice described: we’ve been working with people who are tradition- ally excluded from the decision-making processes and who are likely to face much more complex food jus- tice issues. […] we’ve been listening to peoples’ food injustice experiences, and their solutions to deal with those issues […] to embed this experience into policy and law. In particular, Kitchen Table Talks, which are informal and convivial forums for citizens to discuss food (in)justice in diverse accessible spaces (such as allotments, community food hubs and cafes) were identified as important platforms to nurture inclusive, democratic, people-centred food policy- making. The process of fostering procedural or participative (food) justice in practice can be challenging, however, as articulated by a policy manager for a food justice organisa- tion, because “the term ‘food justice’ is still in its infancy in Scotland, and we’re continually trying to work out how we communicate these complex ideas in an accessible way that is genuinely meaningful for people”. Moreover, some practitioners acknowledged that in a sociospatial context whereby many people feel disenfranchised from mainstream politics, bringing together heterogenous voices to develop inclusive and diverse food movement politics – by reaching beyond the middle-class privilege that has tended to domi- nate food activist spaces and networks – can be a challenging and slow (but imperative) process to realising participatory food justice. In relation to their everyday work practices, several par- ticipants emphasised the importance of placing dignity and respect as core principles underpinning their advocacy and basing their organisational agenda on the lived experiences of people beyond the ‘mainstream’ food movement. This is exemplified by the Menu for Change6 project’s emphasis on 6 A Menu for Change was a partnership project (2017–19) estab- lished as a response to the proliferation of emergency food aid and increasing levels of hunger in Scotland (delivered by Oxfam Scotland, 51Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 “Cash, Rights, Food” to address the root causes of food inse- curity (see MacLeod 2019, p. 7), in which women, and lone parents in particular, are disproportionately affected (Inde- pendent Working Group on Food Poverty 2016). As a cam- paigns manager from a food justice organisation described, “empowering communities is essential to ensure people meaningfully participate in political processes that affect their everyday lives […] based on [values of] co-production and dignity, where a holistic rights-based framework is fun- damental to move towards food justice”. Notably, the majority of participants articulated their understanding of ‘food justice’ in terms of the universal (and fundamentally anthropocentric) right to food, as stated by a practitioner working for an international anti-poverty organi- sation: “I think everybody should have enough to eat is a basic human right, access to food, I guess it’s a rights-based approach […] there is enough food to go around, it’s just the distribution of it is skewed”. This interviewee, along with many others, elaborated the importance of understanding distributive inequities in a global context that transcended arbitrary socially constructed boundaries as a matter of fair- ness (Caney 2005). This sentiment was reiterated by a direc- tor of a permaculture organisation who commented: “the issue globally is not food supply, we grow enough calories to feed everybody, the issue is food distribution” and as a small-scale farmer explained, “you have to start from the point of view that the right to sufficient, adequate and high- quality food is a basic human right”. Overall, interviewees framed the right to food in terms of fairness and equality drawing on liberal understandings of justice (as found in the work of Rawls). In Scotland, there is growing momentum to enshrine the right to food within Scottish legislation through the Good Food Nation agenda.7 As a campaigns manager for a food justice organisation comments, this campaigning priority was justified because: “if you don’t design a food system which is to progress people’s rights, then we will only ever be tinkering around the edges […] we’d like a framework that enables a constant progress towards the progressive realisation of the right to food”. Legislation, therefore, was viewed as a vital vehicle for establishing a core (govern- mental), long-term commitment towards a fair, healthy and sustainable food system, necessitating a coherent and transparent governance framework to ensure accountabil- ity based on “national and local strategies and the right to food as a minimum core obligation” (policy director, social justice charity). While the discourse of ‘rights’ challenges narratives of charitable food (aid) – and enshrining the right to food in law makes policy more resilient and robust as governments change over the political lifecycle – without undoing the structures of power that reproduce inequality, institutionalising the right to food will not guarantee that people are nourished in practice. In this context, some interviewees discussed how a per- formative collective grassroots food politics of “community- led initiatives such as community gardens or like a really good community café or food cooperative that runs along- side the credit union” (organisational lead, community food NGO) often work to guarantee ‘rights’ such as access to nutritious, socially acceptable, culturally appropriate and affordable food in specific, contextual circumstances, rather than relying on the state to do so. This embodies a prefigura- tive “human rights enterprise” from below (Armaline et al. 2015) based on tackling hunger, food insecurity and social isolation as remediable injustices (Sen 2009), which can be addressed in the here and now through collective action, thus creating a situated sense of food justice that endeavours to nurture people’s existing capabilities (Sen 1999; Nussbaum 2000). As noted by several community activists, these grass- roots practices occur in a broader context whereby the UK Government violates a range of legally required obligations to “respect, protect and fulfil” the right to food imposed by international human rights frameworks8 (Just Fair 2014). Enacting sociospatial (food) justice: labour rights, consumptive politics and the invisibility of workers Embedding struggles for economic justice in the local food movement creates particular tension points between labour unions advocating for greater economic equity and those aligning with consumption-based food politics. As described by a labour activist, supporters of alternative food initiatives frequently overlook or disregard conventional food-chain workers because their labour is associated with corporate power and bolsters a socio-environmentally undesirable food system. This tension is exemplified by the McStrike campaign,9 whereby a privileged, biopolitical consump- tive imaginary pervades the mainstream food movement 7 This relates to the campaigning agenda of NGOs within Scotland for a Good Food Nation Bill based on a coordinated approach to food policy. 8 For example, the 1966 International Covenant on Economic, Social and Cultural Rights outlines the right to food in Article 11 and was ratified by the UK Government in 1976. 9 A coalition of trade unions and civil society organisations enacting collective action in relation to low pay, precarious work, bullying and harassment in the workplace, and also a fight for union recognition across the fast food sector, accumulating in days of strike action in the UK since 2015 (for example, on 4 September 2017 and 4 October 2018). The Poverty Alliance, Nourish Scotland and Child Poverty Action Group in Scotland). Footnote 6 (continued) 52 H. Coulson, P. Milbourne 1 3 and artificially separates the ‘alternative’ from the ‘conven- tional’ food system, impeding broader support and acts of solidarity. As an economic justice campaign officer for an anti-poverty charity comments: there is quite a big education job to get people to understand that the role of these campaigns isn’t just to direct individuals’ consumption choices, so in one way that is the failure of our food movement to success- fully articulate a position that marries workers’ rights within fast food with that broader desire to transform the food system, because far too often that falls within an organic consumption, consumer-led type activity […] some of the frames within that are problematic for generating and mobilising support for it. The relative ‘invisibility’ and the devaluing of fast food work compared to, for example, the consideration and arti- san skill associated with the Slow Food movement and its focus on “good, clean, fair food” (member, Slow Food Cymru) “as the ‘gold standard’ of food preparation labour at both home and in restaurants” (Thiemann and Roman-Alcalá 2019, p. 814) works to reinforce food privilege and devalue particular forms of labour that occupies differential positions throughout the food system. Thus, as a practitioner from a food justice organisation argued, it is crucial to identify syn- ergies between the exploitation of labour “on farms, super- markets, slaughterhouses and restaurants, […] throughout complex supply chains” in order to position labour justice more centrally within food movement praxis. However, as a food activist described, “connecting rural and urban is a really big piece of the jigsaw that is often missing” in nurtur- ing translocal, cross-sectoral worker solidarity. A key aspect of economic injustice that was expressed by many participants was the prevalence of in-work poverty. As a public affairs officer for an international Christian charity stated, those working in the food sector often “can’t afford to feed themselves because they are too stretched financially”. In-work poverty currently affects four million people in the UK, the highest in 20 years (JRF 2018). Pertinently, the pov- erty rate is the highest for people employed in food-related industries, with 25 percent of those working in accommo- dation and food services and 23 percent in agriculture, for- estry and fishing, categorised as living in poverty (JRF 2018, p. 36). As a director of a permaculture NGO elucidated: “There’s a huge irony that the people who are paid the least are the people who work in the food industry and that works from farmers through to the people, the cashiers, who sit on the tills, so there’s something deeply broken”. While manifestations of economic inequality that permeate the food system were broadly recognised by participants, their involvement with collective, concerted and integrated action to address labour injustices was fragmented and limited. For some, critical food system education was imperative to enable people to (re)value agrifood labour based on nur- turing political conscientisation (Freire 1970), particularly in the context of a highly industrialised society such as the UK. As described by a food activist in relation to agricultural labour, “we assign so much value and prestige to office jobs, rather than working with our hands, food production, gar- dening is badly paid, so low-status jobs […] it’s all about our values”. Mainstream ‘local’ food movement practitioners, however, rarely discussed equitable conditions of food-chain workers or agricultural labour, rendering multiple forms of food system labour ‘hidden’, reflecting their structural and spatial invisibility in ‘placeless’ factories or remote fields. As a labour activist involved with an anti-poverty charity asserts, food justice can only be attained by revaluing food work in all its forms, paying particular attention to those low-paid, low-skilled sectors outside the purview of ‘local food’ imaginaries: “hospitality is one of those areas with very low wages and very high uses of the most insecure types of work, often marginalised workers, whether that’s because of gender and migrant status as well”. In the UK, the annual need for seasonal agricultural work- ers is a permanent occurrence, however, they are rendered provisional and transitory – the migrant precariat. As a small-scale farmer commented, “There’s been this essen- tially quite racist stuff about Eastern Europeans [in populist Brexit narratives] and then everyone trying to figure out ways of […] allowing Eastern European labour migration to continue despite […] not wanting it to”. While increasing emphasis has been placed on the centrality of migrant labour to UK agriculture, processing and catering, they remain largely invisible and voiceless in debates over the future of post-Brexit food policy, highlighting the participative and recognitional injustices that marginalised groups experience (Loo 2014). Indeed, given that farming10 in the UK is the least ethnically diverse occupation, whereby 98.6 percent are classified as White-British compared to 80.1 percent of total population share (Norrie 2017), there is a pressing need to expand solidarity of agricultural work beyond the white privilege of farm ownership (and large, corporate-focused farming unions) to the marginalised migrant workers that the agricultural system relies upon. Hence, protecting the rights of migrant workers throughout the food chain is particularly important in the context of zero-hour contracts, piecework and Brexit: “We’re really keen that migrant workers aren’t receiving different minimum wages and receiving different conditions” (policy manager, food justice organisation) and through advocacy “draw attention to the overlap between precarious work and other forms of marginalisation, whether 10 Significantly, this category does not include farmworkers or fruit- pickers, many of whom are from Eastern Europe. 53Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 that is race, gender or migration status, and how precari- ous work, works as a system to reinforce those oppressions” (economic justice campaign officer, anti-poverty charity). Through transnational alliances for labour justice, we begin to see how responsibility for global labour justice (Fraser 2005, 2008) can be enacted. As a general secretary for a trade union involved in the McStrike describes: “the SEIU [Service Employees International Union] have been an absolute pivotal part of our campaign, because they support us, send us over trainers to show us how to organise in the fast food arena, they have brought their activists over here to stand on picket-lines and demonstrations outside differ- ent McDonalds stores, they have really been an inspiration to us”. McStrike action took place across towns and cities seeking to strengthen a fair wages movement for food work- ers in the UK, but also enacted in solidarity with the US living wage campaign (the ‘Fight for $15′), with a productive exchange of knowledge and capacity-building processes that were discussed as central to fostering international labour solidarity in relation to sociospatial justice (Slocum et al. 2016). Notably, a small number of participants discussed the importance of moving beyond the labour-based “mili- tant particularisms” (Harvey 1996) that can be embodied in traditional worker organisations such as trade unions, which can impede broader coalition-building with groups campaigning for the transition to a sustainable, decarbon- ised economy (Ciplet and Harrison 2020). This ‘sectoral’ fragmentation can ultimately encumber struggles for radical food system transformation. Connecting concerns for the local with the global is cen- tral to examining the injustices embedded throughout inter- national food supply chains that transverse ‘alternative’ and ‘conventional’ food systems. As an advocacy officer for an anti-poverty organisation comments, the interconnected, multiscalar nature of food systems means that any interven- tion in one place must consider the (global) justice dimen- sions of actions within, and across, nation-state boundaries: [a key task is] how to connect the stuff we are doing locally with the global picture […] which is looking at the treatment of people within food supply chains […]. We’ve done some research in Wales, for example, on women’s low paid sector work, of which food is one, and how to link those two things together to show that there is a price for cheap food here and there is a price globally as well […]. Even if supermarkets are paying the living wage and have decent work in the UK, it doesn’t necessarily mean that that follows all the way through their supply chains. The limited capacity of NGOs and activists in terms of time, resources and knowledge of campaigns in other socio- spatial contexts were obstacles identified by practitioners that can encumber cultivating connections of trust, solidarity and relations of translocal food justice in practice within and between countries. This demonstrates the complexity of enacting responsibility towards harms and injustices involv- ing distant strangers (Young 2011) from the position of a progressive global sense of place (Massey 1994). Transforming food systems through socioecological justice: extending justice to the more‑than‑human For those who articulated a more-than-human conception of food justice, diverse mobilisations emerged around ani- mal activism (particularly animal rights and animal welfare advocates) and environmental/ecological justice. The former was discussed as a moral and ethical stance towards sen- tient nonhuman animals and the latter rooted in concerns for the destructive impacts of industrial, chemically-intensive agriculture on more-than-human ecologies. For some par- ticipants, the complicated and uneven power relations that entangle humans with other animals creates specific ethi- cal and justice obligations dedicated to animal liberation approaches under the “animal-industrial complex” (Twine 2012). This is embodied by veganism that frames justice in terms of animal rights: “the key thing for us is considering the justice and rights of animals […] trying to attain justice for the voiceless animals within our food system […]. So we want to see a complete end to any form of exploitation, of all cruelty to animals” (manager, national vegan charity). In terms of participatory injustice, this interviewee identified nonhuman animals as the paradigmatic ‘voiceless’ margin- alised group entangled in food system politics. While vegan advocacy has conventionally radiated from the core ethical arguments of animal sentiency, those involved with vegan and vegetarian organisations discussed several factors that have been instrumental in diffusing veganism beyond animal rights concerns, most notably, environmental sustainability and health considerations, which have facilitated greater interest in more plant-based consumption. In particular, vegan activists discussed the importance of connecting the injustice and oppression experienced by agricultural animals to farmworkers and ecosystems, and articulated “the benefits of moving away from animal farming and towards plant protein agriculture [and] coming up with solutions to ensure that farmers can have a sustainable lifestyle […] there’s a perception that we are anti-farming… which we’re not” (campaigner, vegan NGO). This tension was discussed in relation to ensuring that farmers have support to transition towards plant protein agriculture and safeguard sustainable livelihoods (Rodríguez 2018; Broad 2019). Significantly, given the definitive ethico- political position of veganism (for example, regarding the moral treatment of animals), it was discussed by a manager of a national vegan charity that there were ethically defended barriers to building certain alliances, as campaigns such as 54 H. Coulson, P. Milbourne 1 3 “less and better meat and dairy does clash with our values”, resulting in various vegan groups and activists believing they occupy the ‘margins’ of the dominant UK food movement. The material reality and ethical implications of killing animals exposes the complex terrain of justice claims that contextualise the idea of a ‘humane’ or ‘compassionate’ death. This narrative was most vividly expressed by ani- mal welfare groups (who focus on regulation and protection policies) concerning interspecies relations, as a practitioner for an animal welfare organisation stated: “we are opposed to long distance animal transport and inhumane slaughter […] their welfare must be taken into account, so protect- ing animals as sentient beings”. In this context, protecting nonhuman animals’ welfare was discussed as ensuring their “capacity to perform natural functions, [and] live a digni- fied life” (policy manager, animal welfare organisation). This formulates animals as subjects of political justice as reflected by the capabilities approach extended to the more- than-human (Nussbaum 2006). It is important to note that such animal-orientated justice considerations (based on the recognition of the sentience and moral worth of nonhuman animals) were mostly absent from other food movement interviewee narratives that drew upon predominately anthro- pocentric understandings of justice, highlighting a particu- lar obstacle in fostering justice for humans and nonhumans entangled within the food system (Rodríguez 2018). The role of the neoliberal political economy in shaping the agricultural industrial complex that promotes the inten- sification of farming was also highlighted as a crucial factor in exploiting and degrading one of the most foundational actants in food systems – soil. As a director of an environ- mental network charity describes: “the other justice aspect that hasn’t been considered are things like the impact of this [agricultural intensification] on soils. […] there might only be 60 harvests left in our soils globally, and so constantly over-fertilising and taking the maximum out of that […] we’re losing soil at a huge rate”. While this highlights a heightened awareness of the vitality of nonhuman material- ity such as soil and the intergenerational consequences of unsustainable farming practices, it still embodies an anthro- pocentric concern for future agricultural output. Decentring the human requires nurturing nonhuman vitality (Plumwood 2001; Bennett 2010) beyond the instrumentalist agricultural paradigm, and instead understanding ‘resources’ in a more- than-human relational context (Slocum et al. 2016). Agroecological practices based on diverse situated knowl- edges, and permaculture in particular, were described by some as a “radical challenge to the mainstream liberal, capitalist model” of food production (practitioner, perma- culture NGO). In this context, several community activists stressed that a growing number of grassroots food initiatives are adopting justice-orientated agroecological frameworks, and therefore, can play a crucial role in creating inclusive, nurturing and healing sociospatial relations that address social and ecological justice together (Holmgren 2011). This is vital given that very few groups and organisations adopt a systemic approach to food-related issues and chal- lenges. As an anti-GMO campaigner discussed, despite people approaching the food system from different entry points “which is why the subject is often fragmented into small, specialist groups”, placing advocacy and activism in a broader landscape of just sustainability (Agyeman et al. 2003) provides a holistic foundation to build solidarity and develop connections in the context of intergenerational jus- tice. As an activist involved with the anti-GMO movement explained: We don’t just talk about GMO, but put it into the context of just sustainability, because in our view it is a symptom of a system that has failed to take up the challenge of producing food in an agroecological and just way. […] [and we] put food in the context of wildlife, health, hunger and malnutrition, and the use of pesticides and climate change […] in which we all have a stake because it affects our future health. In this sense, coalitions that draw together multiple cam- paigns, advocacy work and projects that reflect the diver- sity of actually existing food activism and situate it within a broader (socioecological) justice framework were discussed by several activists as crucial in forging collective power and developing strategic interventions within the policy and gov- ernance landscape. This form of connectivity, however, is currently sparse in practice. Therefore, a fundamental chal- lenge to cultivating food justice in the UK and addressing the structural, more-than-human injustices that shape food and farming systems lies in building collective momentum, strengthening alliances and creating political spaces to con- vene multiple interests in order to overcome fragmented social movement organising. The justice multiple in UK food movements Recent scholarship has called for a wider interpretation of food justice, incorporating distribution, recognition, par- ticipation and capability-based dimensions to strengthen avenues for collective solidarity (Sbicca 2018). However, there is a paucity of engagement with the multifaceted and extensive body of critical political theory that examines the complexity, meaning and nuance of justice and how this relates to, and can inform, food justice praxis in particular socio-spatial contexts (Dieterle 2015; Barnhill and Doggett 2018). Thus, we have posited that plural, spatial–temporal (or intra-/inter-generational) and more-than-human con- ceptions of justice should be more fully integrated into a broader notion of food justice. We propose the idea of the 55Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 justice multiple to draw attention to the entangled web of co- dependencies in which (food) justice can only be achieved when relations of exploitation and the root causes of sys- tems of oppression are addressed through manifold, inter- connected contextual practices of justice, while acknowl- edging difference, diverse knowledges and uneven power relations (Young 1990; Fraser 2008). Indeed, the social, environmental and economic inequalities of the global food system demands that food justice is approached inclusively and holistically, connecting diverse  sociospatial situated activism and advocacy within an integrated framework of socioecological justice. While the concept of food justice is increasingly drawn upon by a range of actors to connect food to crucial mat- ters of injustice (such as poverty), there is a lack of clarity in terms of what exactly food justice is, and what it should look like, in the UK context (Kneafsey et al. 2017). Our research demonstrates that food movement practitioners predominately understand ‘food justice’ in terms of the uni- versal, abstract and anthropocentric right to food, in which all human beings should have access to sufficient, safe and nutritious food regardless of spatial location. Exploring how justice is deployed by actors in relation to their work in practice highlights that the explicit language of justice is often replaced with notions of access, fairness, empower- ment, rights and dignity linked to their programmatic focus. This differential articulation of justice frequently reflects the established organisational discursive framings and frag- mented nature of advocacy and activism, which tends to focus on particular food system issues. Rights-based approaches have gained particular momen- tum among grassroots activists and organisations in the UK, building on academic scholarship advocating for rights-based frameworks to address food poverty (Dowler and Lambie-Mumford 2015). This is exemplified by advo- cacy currently underway in Scotland, whereby community groups, charities and individuals are campaigning for a legal framework for the progressive realisation of the right to food through the Good Food Nation agenda. The notion of dignity – understood as respect and a sense of meaningful agency – was frequently reiterated by participants in relation to food systems to denote the necessity of everyone having digni- fied access to adequate, nutritious and culturally appropriate food, whereby the right to food is a matter of justice, rather than charity. More broadly, this draws attention towards the role of the state and issues of governance, regulation and accountability in relation to rights-based frameworks for addressing structural inequalities. Therefore, we suggest future research must untangle the complex (oppositional and supportive) relationships emerging between food (justice) activism and the state (across the devolved nations), paying close attention to possible processes of co-option and de- politicising mechanisms. The transformative capacity of the right to food agenda will rest not only on its ability to empower citizens and protect and respect the interdependency of different human rights, but also the co-dependencies of socioecological entanglements that form ‘the environment’ (Schlosberg 2007; Millner 2017), nurturing an inclusive rights-based enterprise from below (Armaline et  al. 2015) based on the pluralistic recognition of diverse values and rights of humans and nonhumans to live a dignified life. Our research revealed, however, that while it is imperative to expand conceptions of food justice to nonhuman nature (Rodríguez 2018), in practice, placing nonhumans as subjects of justice frequently remains confined to activists or practitioners who explicitly frame their advocacy in relation to animal rights or ecological justice. Therefore, a key challenge remains in enacting plurivocal food justice praxis which recognises and protects the diverse rights of peoples and nonhuman natures, and systematically connects concerns for sustainable diets, animal welfare, environmental health, labour justice and the decarbonisation of the economy – in other words, pursu- ing sustainability and justice together – in the context of a climate crisis (Agyeman et al. 2003; Ciplet and Harrison 2020). It is against this backdrop that a small but significant number of organisations have recently adopted a holistic food justice approach to pluralise and diversify the food politics of the possible (cf. Gibson-Graham 2006) based on the reflexive recognition that the established alterna- tive ‘local’ food movement in the UK has largely failed to critically and collectively address the structural processes that reproduce socio-environmental inequality within and beyond the food system. Indeed, addressing the multiple injustices that are inherent within the globalised, industrial, chemically-intensive food system, requires moving beyond the politics of food consumption (Agyeman and McEntee 2014) to place focus on remaking political institutions and implementing progressive policy from the ground up (Alkon and Guthman 2017). In this sense, many food activists in the UK are increasingly and strategically building connec- tions with those ‘outside’ the local food movement, par- ticularly long-standing (broadly defined) ‘left’ organising groups (such as those drawing upon socialist, green, feminist and anti-racist thought), reorienting focus away from food itself and towards issues of (in)justice, rights and sustainable livelihoods. Our research highlighted that there are multiple, situated endeavours and advocacy processes in the UK whereby the frame of food justice is a productive prism to contextualise various social movements’ activism related to food, particu- larly those who emphasise addressing class, ethnicity and/ or migrant status-based inequalities. Nevertheless, notably absent from the majority of our interviewee narratives was a reflexive consideration of the complex intersectionality of 56 H. Coulson, P. Milbourne 1 3 injustices that permeate food systems, particularly in rela- tion to (dis)ability, sexuality and race (the latter of which is central to US food justice activism; see Alkon and Agyeman 2011; Agyeman and McEntee 2014). While migrant labour was critically discussed by some interviewees who reflected upon the compounded injustices based on economic insecu- rity, gender and race/ethnicity, this was not widely discussed by members of the ‘mainstream’ local food movement. Thus, there are multiple historically-embedded invisibilities of food injustice (particularly related to workers’ rights and land ownership) in terms of how the dominant local food movement frames its priorities. This points to the erasure of the ongoing historical processes of marginalisation and disenfranchisement that reinforce distributional, recogni- tional, participative and representational injustices across the food system (Alkon and Agyeman 2011). In particular, the intersection of Brexit and the ‘crisis’ of migrant labour in the agrifood system (emphasised by some of our par- ticipants), opens up vital questions about the missing voices in deliberations of current and future UK food governance and policy, and the systems of oppression (colonialism, racism, capitalism and patriarchy) that shape post-Brexit food injustice. This requires urgent critical consideration by scholar-activists. If food justice is to act as a powerful coalescing move- ment-building framework in the UK, we suggest that culti- vating the radical and progressive edges – or the permeable boundaries – of diverse activism (that draw upon critical justice approaches) holds potential for nurturing relation- ships and developing capacity for meaningful, productive and contentious encounters across manifold creative tension points (Holt-Giménez and Shattuck 2011). Indeed, we argue seeing “the edge as an opportunity rather than a problem is more likely to be successful and adaptable” (Holmgren 2011, p. 223). In practice, this helps direct attention towards the possibilities of coalition networks to be productive trans- local assemblages that can generate connectivity between disparate established groups (such as food cooperatives, trade unions and animal welfare groups) at multiple spatial scales to facilitate shared learning and initiate or strengthen imaginative, collaborative strategies that embody a col- lective ontology of justice to work towards transformative socioecological change. Imbedding a plurivocal approach into food justice praxis by adopting a justice multiple lens highlights the unresolved tensions regarding the elasticity of the concept in terms of the trade-offs between its depth and breadth. On a practi- cal level, we are not arguing for food movement groups to incorporate all elements of the justice multiple approach within their everyday programmatic focus as this would be highly demanding and idealistic given the tension-laden ethical issues and manifold contestations that exist in rela- tion to food systems. Rather, the aim of this paper has been to propose a pluralised understanding of justice to strengthen ‘food justice’ and argue for a more inclusive, diversified and democratic food politics emanating from the UK that strives for collective solutions to structural food injustices based on shared political responsibility (Young 2011). Central to this approach is recognising the always more-than-human co-dependencies that shape food systems across space and over time. As stated above, cultivating the edges of diverse activism and advocacy to identify and nurture pluralised justice considerations holds particular promise in moving beyond pervasive dichotomies (local/global, rural/urban, human/nonhuman) in fostering avenues for broader coali- tion-building throughout the food system and beyond, based on collective solidarity to nurture food justice for all. Acknowledgements We would like to thank all our participants for generously sharing their time, thoughts and knowledge with us. We would also like to thank the two anonymous reviewers and editorial team for their helpful comments and suggestions. Open Access This article is licensed under a Creative Commons Attri- bution 4.0 International License, which permits use, sharing, adapta- tion, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creat iveco mmons .org/licen ses/by/4.0/. References Agyeman, J., R.D. Bullard, and B. Evans. 2003. Just sustainabilities: Development in an unequal world. Cambridge, MA: MIT Press. Agyeman, J., and J. McEntee. 2014. Moving the field of food justice forward through the lens of urban political ecology. Geography Compass 8 (3): 211–220. Alkon, A.H. 2014. Food justice and the challenge to neoliberalism. Gastronomica 14 (2): 27–40. Alkon, A.H., and J. Agyeman (eds.). 2011. Cultivating food justice: Race, class, and sustainability. Cambridge, MA: MIT Press. Alkon, A.H., and J. Guthman (eds.). 2017. The new food activism: Opposition, cooperation, and collective action. Oakland, CA: University of California Press. Alkon, A.H., and T. Mares. 2012. Food sovereignty in US food move- ments: Radical visions and neoliberal constraints. Agriculture and Human Values 29 (3): 347–359. Alkon, A.H., and K.M. Norgaard. 2009. Breaking the food chains: An investigation of food justice activism. Sociological Inquiry 79 (3): 289–305. Allen, P. 2010. Realizing justice in local food systems. Cambridge Journal of Regions, Economy and Society 3 (2): 295–308. Armaline, W.T., D.S. Glasberg, and B. Purkayastha. 2015. The human rights enterprise. Cambridge: Polity Press. Barnhill, A., and T. Doggett. 2018. Food ethics I: Food production and food justice. Philosophy Compass 13 (3): 1–13. http://creativecommons.org/licenses/by/4.0/ 57Food justice for all?: searching for the ‘justice multiple’ in UK food movements 1 3 Baxter, B. 2005. A theory of ecological justice. New York: Routledge. Bennett, J. 2010. Vibrant matter: A political ecology of things. Durham, NC: Duke University Press. Broad, G.M. 2016. More than just food: Food justice and community change. Oakland, CA: University of California Press. Broad, G.M. 2019. Plant-based and cell-based animal product alterna- tives: An assessment and agenda for food tech justice. Geoforum 107: 223–226. Cadieux, K.V., and R. Slocum. 2015. What does it mean to do food justice? Journal of Political Ecology 22 (1): 1–26. Caney, S. 2005. Justice beyond borders: A global political theory. Oxford: Oxford University Press. Caney, S. 2009. Climate change and the future: Discounting for time, wealth, and risk. Journal of Social Philosophy 40 (2): 163–186. Caraher, M., and S. Furey. 2018. The economics of emergency food aid provision: A financial, social and cultural perspective. Cham: Palgrave Pivot. Ciplet, D., and J.L. Harrison. 2020. Transition tensions: Mapping con- flicts in movements for a just and sustainable transition. Environ- mental Politics 29 (3): 435–456. Clarke, J., and J. Newman. 2012. The alchemy of austerity. Critical Social Policy 32 (3): 299–319. Coole, D., and S. Frost. 2010. New materialisms: Ontology, agency and politics. Durham, NC: Duke University Press. Dieterle, J.M. (ed.). 2015. Just food: Philosophy, justice and food. London: Lanham. Dixon, B.A. 2014. Learning to see food justice. Agriculture and Human Values 31 (2): 175–184. Donaldson, S., and W. Kymlicka. 2011. Zoopolis: A political theory of animal rights. Oxford: Oxford University Press. Dowler, E., and H. Lambie-Mumford. 2015. How can households eat in austerity? Challenges for social policy in the UK. Social Policy and Society 14 (3): 417–428. End Hunger UK. 2019. Why end UK hunger? The case for ending hunger in the UK. Salford: Church Action on Poverty. https :// www.endhu ngeru k.org/wp-conte nt/uploa ds/2019/11/Why-End- UK-Hunge r.pdf Accessed 18 October 2019. Ferguson, H. and the Northern Rivers Landed Histories Research Group. 2016. More than something to hold the plants up: Soil as a non-human ally in the struggle for food justice. Local Environ- ment 21 (8): 956–968. Fraser, N. 1997. Justice interruptus: Critical reflections on the ‘post- socialist’ condition. New York: Routledge. Fraser, N. 2005. Reframing justice in a globalizing world. New Left Review 36: 69–88. Fraser, N. 2008. Scales of justice: Reimagining political space in a globalizing world. New York: Columbia University Press. Fraser, N., and A. Honneth. 2003. Redistribution or recognition: A political-philosophical exchange. London: Verso. Freire, P. 1970. Pedagogy of the oppressed. New York: Continuum. Garner, R. 2013. A theory of justice for animals. Oxford: Oxford Uni- versity Press. Gibson-Graham, J.K. 2006. A postcapitalist politics. Minneapolis, MN: University of Minnesota Press. Glennie, C., and A.H. Alkon. 2018. Food justice: Cultivating the field. Environmental Research Letters 13 (7): 1–13. Gottlieb, R., and A. Joshi. 2010. Food justice. Cambridge, MA: MIT Press. Guthman, J. 2008. Neoliberalism and the making of food politics in California. Geoforum 39 (3): 1171–1183. Haraway, D. 2008. When species meet. Minneapolis, MN: University of Minnesota Press. Harrison, J.L. 2014. Neoliberal environmental justice: Mainstream ideas of justice in political conflict over agricultural pesticides in the United States. Environmental Politics 23 (4): 650–669. Harvey, D. 1996. Justice, nature and the geography of difference. Oxford: Blackwell. Herman, A., and M. Goodman. 2018. New spaces of food justice. Local Environment 23 (11): 1041–1046. Heynen, N., H.E. Kurtz, and A. Trauger. 2012. Food justice, hunger and the city. Geography Compass 6 (5): 304–311. Holmgren, D. 2011. Permaculture principles and pathways beyond sustainability. East Meon, Hampshire: Permanent Publications. Holt-Giménez, E. (ed.). 2011. Food movements unite!: Strategies to transform our food systems. Oakland, CA: Food First Books. Holt-Giménez, E., and A. Shattuck. 2011. Food crises, food regimes and food movements: Rumblings of reform or tides of transfor- mation? The Journal of Peasant Studies 38 (1): 109–144. Independent Working Group on Food Poverty. 2016. Dignity: End- ing hunger together in Scotland. Edinburgh: The Scottish Government. Joseph Rowntree Foundation (JRF). 2018. UK poverty 2018: A compre- hensive analysis of poverty trends and figures. Joseph Rowntree Foundation Analysis Unit. York: Joseph Rowntree Foundation. Just Fair. 2014. Going hungry? The human right to food in the UK. London: Just Fair. https ://justf air.org.uk/wp-conte nt/uploa ds/2018/05/Going -Hungr y-The-Human -Right -to-Food-in-the- UK.pdf Accessed 12 January 2019. Kneafsey, M., L. Owen, E. Bos, K. Broughton, and M. Lennarts- son. 2017. Capacity building for food justice in England: The contribution of charity-led community food initiatives. Local Environment 22 (5): 621–634. Kymlicka, W., and S. Donaldson. 2016. Locating animals in political philosophy. Philosophy Compass 11 (11): 692–701. Lang, T., D. Barling, and M. Caraher. 2009. Food policy: Integrating health, environment and society. Oxford: Oxford University Press. Latour, B. 2005. Reassembling the social: An introduction to actor- network theory. Oxford: Oxford University Press. Loo, C. 2014. Towards a more participative definition of food jus- tice. Journal of Agricultural and Environmental Ethics 27 (5): 787–809. MacLeod, M. A. 2019. Found wanting. Understanding journeys into and out of food insecurity: A longitudinal study. A Menu for Change Report. GB: Oxfam. Mama D and C. R. Anderson. 2018. Exploring food and social justice in the UK. Breadlines: A Grassroots Journal 1(1): 1–24. https ://commu nityk nowle dgece ntred .files .wordp ress.com/2018/03/ bread lines issue -issue 1_mar19 revis ed.pdf Accessed 12 June 2019. Mares, T.M., and D.G. Peña. 2011. Environmental and food justice: Toward local, slow and deep food systems. In Cultivating food justice: Race, class, and sustainability, ed. A.H. Alkon and J. Agyeman, 197–219. Cambridge, MA: MIT Press. Massey, D. 1994. Space, place and gender. Cambridge: Polity Press. McClintock, N. 2014. Radical, reformist, and garden-variety neolib- eral: Coming to terms with urban agriculture’s contradictions. Local Environment 19 (2): 147–171. Millner, N. 2017. ‘The right to food is nature too’: Food justice and everyday environmental expertise in the Salvadoran permacul- ture movement. Local Environment 22 (6): 764–783. Mol, A. 2002. The body multiple: Ontology in medical practice. Durham, NC: Duke University Press. Montalvo, M.F.G. 2015. To the American food justice movements: A critique that is also an offering. Journal of Agriculture, Food Systems, and Community Development 5 (4): 125–129. Myers, J.S., and J. Sbicca. 2015. Bringing good food and good jobs: From secession to confrontation within alternative food move- ment politics. Geoforum 61: 17–26. Norrie, R. 2017. The two sides of diversity: Which are the most ethni- cally diverse occupations? London: Policy Exchange. https :// https://www.endhungeruk.org/wp-content/uploads/2019/11/Why-End-UK-Hunger.pdf https://www.endhungeruk.org/wp-content/uploads/2019/11/Why-End-UK-Hunger.pdf https://www.endhungeruk.org/wp-content/uploads/2019/11/Why-End-UK-Hunger.pdf http://justfair.org.uk/wp-content/uploads/2018/05/Going-Hungry-The-Human-Right-to-Food-in-the-UK.pdf http://justfair.org.uk/wp-content/uploads/2018/05/Going-Hungry-The-Human-Right-to-Food-in-the-UK.pdf http://justfair.org.uk/wp-content/uploads/2018/05/Going-Hungry-The-Human-Right-to-Food-in-the-UK.pdf https://communityknowledgecentred.files.wordpress.com/2018/03/breadlinesissue-issue1_mar19revised.pdf https://communityknowledgecentred.files.wordpress.com/2018/03/breadlinesissue-issue1_mar19revised.pdf https://communityknowledgecentred.files.wordpress.com/2018/03/breadlinesissue-issue1_mar19revised.pdf https://policyexchange.org.uk/wp-content/uploads/2017/03/The-two-sides-of-diversity-2.pdf 58 H. Coulson, P. Milbourne 1 3 polic yexch ange.org.uk/wp-conte nt/uploa ds/2017/03/The-two- sides -of-diver sity-2.pdf Accessed 12 April 2019. Nourish Scotland and the Poverty Truth Commission. 2018. Dignity in practice. Scotland, UK: Nourish. Nussbaum, M. 2000. Women and human development: The capabili- ties approach. Oxford: Oxford University Press. Nussbaum, M. 2006. Frontiers of justice: Disability, nationality, spe- cies membership. Cambridge, MA: Harvard University Press. O’Hara, M. 2014. Austerity bites. Bristol: Policy Press. Paddock, J. 2016. Positioning food cultures: ‘Alternative’ food as distinctive consumer practice. Sociology 50 (6): 1039–1055. Parfit, D. [1984] 2004. Justice across generations: The non-identity problem. In Social Justice, eds. W. Clayton and A. Williams, 286–308. Oxford: Blackwell. Pellow, D.N. 2014. Total liberation: The power and promise of ani- mal rights and the radical earth movement. Minneapolis, MN: University of Minnesota Press. Penniman, L. 2018. Farming while Black: Soul Fire Farm’s practi- cal guide to liberation on the land. White River Junction, VT: Chelsea Green Publishing. Pepper, A. 2016. Beyond anthropocentrism: Cosmopolitanism and nonhuman animals. Global Justice: Theory, Practice, Rhetoric 9 (2): 114–133. Perz, S.G., H. Covington, J.E. Moscoso, L. Griffin, G. Jacobson, F. Leite, A. Mook, C. Overdevest, T.G. Samuels-Jones, and R. Thomson. 2018. Future direction for application of political economy in environmental and resource sociology: Selected research priorities going forward. Environmental Sociology 4 (4): 470–487. Plumwood, V. 2001. Nature as agency and the prospects for a progres- sive naturalism. Capitalism Nature Socialism 12 (4): 3–32. Plunkett, D. 2016. Justice, non-human animals, and the methodology of political philosophy. Jurisprudence 7 (1): 1–29. Pogge, T. 1989. Realizing Rawls. Ithaca, NY: Cornell University Press. Pogge, T. 2002. World poverty and human rights: Cosmopolitan responsibilities and reforms. Cambridge: Polity. Poppendieck, J. 1998. Sweet charity? Emergency food and the end of entitlement. New York: Viking. Raj, K. 2019. Nothing left in the cupboards: Austerity, welfare cuts, and the right to food in the UK. London: Human Rights Watch. https ://www.hrw.org/sites /defau lt/files /repor t_pdf/uk051 9_web3. pdf Accessed 14 June 2019. Rawls, J. 1971. A theory of justice. Cambridge, MA: Belknap Press. Reynolds, K., and N. Cohen. 2016. Beyond the kale: Urban agriculture and social justice activism in New York City. Athens, GA: The University of Georgia Press. Rodríguez, S. (ed.). 2018. Food justice: A primer. Wroclaw: Sanctuary Publishers. Sbicca, J. 2012. Growing food justice by planting an anti-oppression foundation: Opportunities and obstacles for a budding social movement. Agriculture and Human Values 29 (4): 455–466. Sbicca, J. 2018. Food justice now!: Deepening the roots of social strug- gle. Minneapolis, MN: University of Minnesota Press. Schlosberg, D. 2007. Defining environmental justice. New York: Oxford University Press. Schuppert, F. 2011. Climate change mitigation and intergenerational justice. Environmental Politics 20 (3): 303–321. Sen, A. 1999. Commodities and capabilities. Oxford: Oxford Univer- sity Press. Sen, A. 2009. The idea of justice. London: Allen Lane. Singer, P. 1975. Animal liberation. New York: Harper. Slocum, R. 2018. Must everything be called ‘food justice’? Local Envi- ronment 23 (11): 1103–1105. Slocum, R., K.V. Cadieux, and R. Blumberg. 2016. Solidarity, space, and race: Toward geographies of agrifood justice. Justice Spa- tiale / Spatial Justice 9: 1–34. Soja, E.W. 2010. Seeking spatial justice. Minneapolis, MN: University of Minnesota Press. Sutton, J. 2016. Food worth fighting for: From food riots to food banks. London: Prospect Books. Thiemann, L., and A. Roman-Alcalá. 2019. Fast food sovereignty: Con- tradiction in terms or logical next step? Journal of Agricultural and Environmental Ethics 32 (5–6): 813–834. Tornaghi, C. 2016. Urban agriculture in the food-disabling city: (Re) defining urban food justice, reimagining a politics of empower- ment. Antipode 49 (3): 781–801. Twine, R. 2012. Revealing the ‘animal-industrial complex’ – A concept & method for critical animal studies. Journal for Critical Animal Studies 10 (1): 12–39. Walker, G. 2009. Beyond distribution and proximity: Exploring the multiple spatialities of environmental justice. Antipode 41 (4): 614–636. Williams, A., P. Cloke, J. May, and M. Goodwin. 2016. Contested space: The contradictory political dynamics of food banking in the UK. Environment and Planning A 48 (11): 2291–2316. Young, I.M. 1990. Justice and the politics of difference. Princeton, NJ: Princeton University Press. Young, I.M. 2011. Responsibility for justice. Oxford: Oxford Univer- sity Press. Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Helen Coulson is a Lecturer in Human Geography and Planning (Food) in the School of Geography and Planning at Cardiff University. As a political ecologist, her research focuses on the role of governance, power and (in)justice in relation to food systems. Her current research centres on the geographies of ethics and justice in developing translocal care-full food justice politics. Paul Milbourne is Professor of Human Geography in the School of Geography and Planning at Cardiff University and Director of the University’s Centre for Research on Environment, Society and Space. His main research interests lie in the field of social geography, and, more specifically, the geographies of welfare and poverty. Paul is also interested in environmental geographies, particularly the interplay between social and environmental forms of injustice within contem- porary society. His current research projects are concerned with urban food systems, food justice, urban agriculture and migrant workers in the agri-food system. https://policyexchange.org.uk/wp-content/uploads/2017/03/The-two-sides-of-diversity-2.pdf https://policyexchange.org.uk/wp-content/uploads/2017/03/The-two-sides-of-diversity-2.pdf https://www.hrw.org/sites/default/files/report_pdf/uk0519_web3.pdf https://www.hrw.org/sites/default/files/report_pdf/uk0519_web3.pdf Food justice for all?: searching for the ‘justice multiple’ in UK food movements Abstract Introduction Interrogating political theories of ‘justice’ in food justice Pluralising justice: distribution, recognition, participation and enhancing capabilities Expanding justice across space and time: global duties, obligations to distant others and intergenerational rights Extending justice to the more-than-human: posthuman social justice and nonhuman vitality Researching conceptualisations of justice in UK food movements Examining justice in UK food movements Pluralising justice through rights-based approaches to food Enacting sociospatial (food) justice: labour rights, consumptive politics and the invisibility of workers Transforming food systems through socioecological justice: extending justice to the more-than-human The justice multiple in UK food movements Acknowledgements References 
work_5lttov63fvhbzmzs2em4berfqa	----	Disability: a justice-based account Disability: a justice-based account Jessica Begon1 Published online: 18 May 2020 � The Author(s) 2020 Abstract Most people have a clear sense of what they mean by disability, and have little trouble identifying conditions they consider disabling. Yet providing a clear and consistent definition of disability is far from straightforward. Standardly, dis- ability is understood as the restriction in our abilities to perform tasks, as a result of an impairment of normal physical or cognitive human functioning (in combination with our social, political, and environmental context, and our resource share). However, which inabilities matter? We are all restricted by our bodies, and are all incapable of performing some tasks, but most of these inabilities are not considered disabilities. If, then, we are to avoid the category of disability becoming overly broad—and thus politically and practically useless—we need some way of picking out the specific inabilities that are disabling. I argue that our answer should be informed by an account of the opportunities individuals are entitled to be able to perform as a matter of justice. Thus, to be disabled is to have these opportunities restricted, and not to deviate from the species norm or lack any ability that might improve our well-being. Keywords Disability � Impairment � Distributive justice � Well-being � Species functioning & Jessica Begon jessica.e.begon@durham.ac.uk 1 School of Government and International Affairs, Durham University, The Al-Qasimi Building, Elvet Hill Rd, Durham DH1 3TU, UK 123 Philos Stud (2021) 178:935–962 https://doi.org/10.1007/s11098-020-01466-3 http://orcid.org/0000-0002-2701-4272 http://crossmark.crossref.org/dialog/?doi=10.1007/s11098-020-01466-3&amp;domain=pdf https://doi.org/10.1007/s11098-020-01466-3 1 The problem of defining disability My goal is to defend a new account of disability: one that is indexed to an account of distributive justice, or what individuals are entitled to. Yet it may seem that determining how disability should be defined needs no further investigation. Most people have a clear sense of which conditions they consider disabling. Further, there is broad philosophical consensus on some central features of an account of disability. First, there is a widely accepted distinction between impairment as physical or cognitive features that cause deviation from a biological or statistical norm of species functioning, and disability as a restriction in our ability to perform tasks. 1 There is considerable agreement, too, that disability is caused in part by impairment, and in part by an individual’s social and political context, and the resources they have access to. 2 I do not intend to challenge the consensus on either point. Rather, I ask: if disability is the restriction in our ability to perform tasks, then which inabilities matter? In other words, which of the limitations that result from individuals’ impairments, in combination with their context and resources, should be considered disabling? We are all restricted by our bodies, and are all incapable of performing some tasks, but most of these inabilities are not considered disabilities. An account of disability is an essential prerequisite to formulating public policies that safeguard the just treatment of disabled individuals, and an account cannot form the basis of such policy if it simply concludes that ‘everyone is disabled’. If, then, we are to avoid the category of disability becoming overly broad—and thus politically and practically useless—we need some way of picking out which inabilities are relevant to defining disability. Only then can we identify and respond to the injustice, discrimination, and mistreatment to which so many disabled individuals are subject. I begin, in Sect. 2, by considering and rejecting alternative accounts of which inabilities are disabling: those entailed by ‘normal’ species functioning (Buchanan et al. 2000; Daniels 1985), those that undermine well-being (Kahane and Savulescu 2009; Savulescu and Kahane 2009), and those considered relevant by disability activists (Barnes 2016a). I demonstrate that the latter approach leaves disability underspecified, whilst on the former two approaches disability will be ubiquitous. As such, all of these alternatives prove an inadequate basis for public policy, political campaigning, or activist movements. I argue, instead, that the relevant opportunity losses involve restrictions of individuals’ entitlements (Sect. 3). Thus, I define disability as the restriction in the ability to perform those tasks human beings 1 For example: Terzi (2004), Nussbaum (2006), Shakespeare (2006), Smith (2001), Buchanan et al. (2000), Oliver (1996). Though some recent work questions this distinction (Barnes 2018, 2016a). 2 In other words, we should reject both a strict medical model of disability (according to which disability is straightforwardly caused by individual impairment), and a strict social model (which denies this causal relationship, insisting instead that disability is solely the result of unjust social structures). Whilst social structures can certainly be disabling, it is also clear that disability could not be eliminated by social changes alone (Barclay 2010: 161; Shakespeare 2006: 46; Terzi 2004). Hence, we should adopt a hybrid account, which acknowledges the influence of social factors, without ignoring the impact of impairment (for example, Wolff 2009a; Kahane and Savulescu 2009; Shakespeare 2006; Terzi 2008; Daniels et al. 2009). 936 J. Begon 123 are entitled to be able to perform as a matter of justice, as the result of the interaction between an individual’s impairment, their social and political context, and the resources they have available to them. This provides a framework account of disability. To determine whether an impairment is actually disabling will require an account of our distributive entitlements, but this is not a prerequisite to accepting the general claim that individuals are disabled when their access to these entitlements is restricted (as a result of their impairment and context). (As subsequent discussions will illustrate, the case of disability does give us some reason to favour particular accounts of distributive justice over others, but I will not attempt to mount a definitive defence of one particular approach here.) In Sect. 4 I consider some possible objections to the definition I have sketched. First, it may seem that if being disabled means lacking what we are entitled to, then in cases where this cannot be rectified, this cannot be unjust. This implies individuals with serious impairments would not be considered disabled on my account. Second, in part to avoid the former objection, I adopt a broadly-specified and multiply-realisable conception of entitlements: for example, as opportunities for mobility, communication, or forming relationships. This leaves me vulnerable to the further worry that individuals will not be considered disabled, or entitled to assistance, even when unable to perform important functionings (walking, hearing, easily reading social cues) if they have more general capabilities in these domains. I respond to these objections in Sects. 5 and 6. I finish, in Sect. 7, by considering the revisionary and counterintuitive implications of my account. It will, for example, imply that individuals with significant and visible impairments may not be disabled by them, that individuals with apparently minor or invisible impairments may be disabled, and that individuals’ status as disabled may change across time and context. However, I argue that far from giving us a reason to reject my approach, this is one its key benefits. The intuitions with which this approach may clash ought to be challenged: our understanding of disability should no longer focus on bodily difference or deviation from what we take to be the norm, and should instead reflect a concern with the opportunities that all individuals ought to have access to, and which are closed to so many. 2 What disability is not 2.1 Disability and impairment In this section I outline and critique alternative accounts of disability. However, I do not challenge the distinction between disability and impairment, or the consensus that the cause of disability involves both individual impairment and wider context. This terminology is worth clarifying. Impairment can be understood as ‘‘departure from human normality’’ (Terzi 2008: 43) or atypical forms of physical or cognitive functioning, and might include blindness, deafness, and mobility impairments, as well as non-standard cognitive functionings experienced by individuals with autistic spectrum conditions (ASCs), Down’s syndrome, or Alzheimer’s. Disabilities are the Disability: a justice-based account 937 123 ‘‘activity limitations, and participation restrictions’’ that may result (WHO 2017). There are various views on which such limitations are disabling. For example, those who subscribe to a species norm approach deem the relevant functioning restrictions to be those ‘‘that individuals in someone’s reference group (e.g. adults) are ordinarily able to do’’ (Buchanan et al. 2000: 286). The goal of the paper is to defend a different approach. Distinguishing disability and impairment draws attention to the contingency of the connection between bodily and cognitive difference and having a disability, which also depends on context, resources, and personal features. Indeed, highlighting this contingency was a major motivation behind the development of the social model by the disability rights movement. 3 Further, as we will see, this distinction both allows us to campaign against disability, as restriction, without suggesting that we should seek to normalise human bodies and minds by eliminating impairments, and enables us to describe the shared experience of atypical functioning of those who have an impairment, whether they are disabled by it or not. Nonetheless, objections may be raised against this terminology. First, whilst common among disability scholars and activists, outside this community this language might strike some as clumsy and counterintuitive. We are very used to calling people with impairments—of vision, mobility, cognitive function—disabled, without paying much attention to the restrictions in activity or participation they may or may not face. It may seem awkward to insist that an individual in a wheelchair—often the literal poster-child of disability—is merely impaired, and that this might not translate into a disability. Yet this discomfort is often grounded in the unexamined assumption that differences in physical and cognitive functionings must manifest themselves in restrictions of ability, and the associated belief that the impaired body or mind is, itself, the problem. These intuitions, however strong, ought to be questioned, as the disability rights movement has long argued. A second, more serious worry concerns the potential normative implications of labelling individuals ‘impaired’. This is not intended to be an evaluative concept. It simply provides a way of distinguishing disability, which (partially) results from impairment, from other forms of disadvantage, such as that associated with some racial or gender identities, or sexual orientation. 4 Further, (almost) everyone in some way deviates from the norm; hence, has an impairment. Nonetheless, this term has connotations of deficiency, defect, and imperfection. It may, therefore, seem more 3 The social model not only drew a conceptual distinction between impairment and disability, but, in some iterations, disputed the causal connection between them (see fn.2). 4 This is in addition to the other noted benefits: highlighting both the contingency of the connection between impairment and disadvantage, and the shared experience of atypical functioning. A further reason to accept this distinction is that I am not convinced by the arguments of its primary opponent— Barnes (2016a: 23–28, 2018)—for its rejection. Briefly, these are: first, that our judgements about who is impaired rely on our intuitions about disability, and that there is no distinct explanatorily and extensionally adequate account of impairment; and, second, that this will lead to an overly disembodied view of disability focussing merely on social exclusion and ignoring the ‘‘messy reality’’ of having a disabled body (Barnes 2018: 1158). I believe these claims can best be refuted with a neutral account of impairment, though I cannot rehearse these arguments here (see Begon (unpublished).) For further critiques of Barnes’s view of impairment, see Howard and Aas (2018) and Francis (2018). 938 J. Begon 123 apt to refer to ‘difference’, ‘diversity’, or ‘heterogeneity’. I do not do so only to avoid the proliferation of competing terminology. However, to emphasise, impairment is synonymous with difference rather than deficiency. Yet this neutral account of impairment may seem to leave my approach vulnerable to a third objection: that it will render the category of disability over- inclusive. As noted, part of the reason to accept the standard distinction between disability and impairment is that this helps to distinguish disability from other forms of socially-mediated disadvantage. However, if impairment implies mere atypicality (rather than deficiency) then it may still seem to include almost everyone: even individuals with better than normal functioning may count as impaired, in obvious tension with its usual meaning. The most straightforward response here is to note that accepting my general account of disability does not hang on accepting this view of impairment. It is possible to agree that individuals are disabled when they lack the opportunities they are entitled to, though to focus on cases in which this results from functioning in a ‘deficient’ or ‘unhealthy’ way. More substantively, I believe both that there are positive reasons to adopt a neutral account of impairment, and that this will not render disability problemat- ically over-inclusive, though I lack the space to fully defend either claim here. 5 To briefly tackle the over-inclusiveness worry: first, it is true that better functioning individuals will count as impaired (assuming functionings can meaningfully be described as simply ‘better’, as opposed to better suited to a particular context). However, describing Michael Phelps (to take Barnes’s (2016a: 14–15) oft-cited example) as impaired is hardly implausible if this just means he functions atypically. The important question is whether he is disabled—whether he lacks opportunities he is entitled to—and it is clear that he is not. A broad account of impairment does not necessitate a broad account of disability, then. Second, racial identity and sexual orientation will not count as impairments insofar as racial 5 See Begon (unpublished). In brief support of the neutral approach: first, it avoids the implication that the appropriate response to impairment must be to cure or eliminate it, which seems to follow if impairment is taken to imply deficiency or ill-health. Second, it avoids the difficult task of determining which ways of functioning are non-contextually worse: whilst certain forms of physical and cognitive functioning do not fit well with some environmental contexts it is far from straightforward to identify a principle that determines which deviations from the norm are simply negative. Finally, the neutral approach provides a means of responding to a worry that might be raised about under-inclusiveness: if impairment is deficiency then those whose functioning cannot plausibly be described as deficient, such as some autistic persons, will not be considered disabled. One means of avoiding such exclusion is to allow that individuals may be disabled if they are merely perceived as, or treated as if, they are impaired [indeed, the ADA has taken this approach (see Francis 2018 for discussion), and for a defence of this position see Aas (2016) and Howard and Aas (2018)]. This move is unnecessary if impairment merely implies difference: these individuals straightforwardly count as impaired insofar as their functioning is atypical, and are disabled if they lack opportunities they are entitled to. No claim about deficiency is necessary. Thus, we need not attempt the thorny challenge of formulating an account of deficiency. Nor need we distinguish those in the disabled community who are ‘really’ impaired (i.e. defective) and those who are wrongly perceived as such. For further arguments against this approach see Begon (unpublished). However, it is worth emphasising that accepting the central claim of this paper does not demand acceptance of these arguments: perhaps individuals are disabled when they lack the opportunities they are entitled to as a result of being perceived to function in a deficient (or, indeed, merely atypical) way. Disability: a justice-based account 939 123 phenotypes and preferences cannot plausibly be described as functionings. 6 Sex- based differences may seem to present a harder case since there do seem to be differences in the functional capacities of average male and female-bodied persons, most obviously (though not only) relating to differences in their reproductive capacities. We do not need to accept the existence of a strict binary, or a metaphysically deep reason to appeal to reference classes based on sex categories, to allow that our assessment of typical functionings can be indexed to the capacities of biological females and males. Thus, a male is not impaired by their inability to bear young. 7 A neutral account of impairment, then, need not lead to the inclusion of other forms of disadvantage in the category of disability. 2.2 Species norm accounts I therefore accept the distinction between disability and impairment, where the latter concept will make some reference to normal species functioning, but nonetheless reject accounts where disability itself comprises the loss of species-normal abilities. The most obvious worry is that these accounts will be over-inclusive since individuals depart from the species norm in many trivial (or even beneficial) ways. Raising an eyebrow might be a species-normal ability, but those who lack it surely are not disabled. Allen Buchanan et al. (2000: 285) attempt to avoid this problem by distinguishing ‘‘impairment of normal species functioning’’ from disability as the resulting inability to perform a significant range of tasks. To illustrate, they consider someone who cannot hear sound at a particular range of frequencies, yet in whose environment nothing ‘‘she is likely to be required to do or would benefit from doing’’ requires hearing sound in this range (Buchanan et al. 2000: 287). This individual thus has an impairment, but this does not translate into a disability. 6 I assume that preferences and appearance do not constitute ways of functioning though they may be functional, but I lack the space to defend this view. Thanks to an anonymous reviewer for raising this point. 7 It might seem that trans persons are a difficult case to accommodate here. Whilst I cannot attempt a full account of this complex and controversial topic, it is not immediately obvious that this must be so. Roughly I would suggest, first, that either conforming to, or subverting, socially-constructed gendered behaviours should not be considered a form of physical or cognitive functioning, but a preference about how to live our lives. Thus, individuals whose gender presentation is non-binary or does not conform to their assigned sex should not be understood as having an atypical functioning capacity. Second, individuals who change their sex identity or change their body to corresponded to their true sex might be impaired if they are unable to perform functionings that are typical for this sex. For example, trans women who are unable to bear young or menstruate could be said to function atypically, and could potentially be disabled too, depending on the consequences of such restrictions, just as natal women who cannot so function might be. This does not imply that there is anything pathological about mere possession of a trans identity, thus following the DSM-5 (2013) in accepting that ‘‘gender nonconformity is not itself a mental disorder’’. {I leave aside, here, the question of whether there may nonetheless be reasons for trans persons to choose to adopt a disabled status if this is the only way to ensure their rights are protected [as Wahlert and Gill (2017) argue]}. This would not hold true if we do not believe individuals can choose or change their sex, in which case these trans women would be normal functioning male-bodied persons with female gender identity and presentation—and thus not impaired. I take no view on which approach is correct, but merely sketch how they may be accommodated. For further discussion of these issues see, for example, Bettcher (2014a, b), Dembroff (forthcoming), Jenkins (2016). 940 J. Begon 123 However, this distinction between inabilities to perform species-normal functionings and species-normal tasks is difficult to draw—at least, without some additional account of which of these tasks are ‘significant’. Indeed, in describing their example, Buchanan et al. (2000: 287) make reference to what we might ‘‘be required’’ to do or ‘‘would benefit’’ from doing. By (implicitly) drawing on these ideas they can avoid the inclusion of trivial inabilities. However, this also suggests that their means of identifying relevant restrictions is not purely based on a species norm, and so is no longer a species norm approach. Furthermore, this approach’s focus on ‘tasks’ may mean it is under-inclusive. Consider, for example, individuals who suffer from chronic pain, anxiety, or depression, but who are nonetheless high-functioning and able to perform all species-normal tasks (or those they are required to do, or that benefit them). These cases are analogous to the individual who cannot hear particular sound frequencies: they may not function as normal, but this does not translate into a restriction in their abilities. Yet it is implausible to suggest that individuals who struggle with pain, anxiety, and depression are not disabled until this manifests in an inability to perform tasks. Buchanan et al. could respond by adopting a more expansive understanding of tasks, and thus of disability. They might point out that performing tasks whilst suffering is not species-normal: we should not focus just on what people can achieve but on whether their method of achievement is normal. This response would, indeed, allow them to include individuals with chronic pain, depression, and so on, but would seem to come at the cost of also including their hearing-impaired person, and other trivial cases. After all, the species-normal way of performing the task of hearing includes, inter alia, not being in pain and hearing sound frequencies within a certain range. This fully inclusive approach is both implausible and contrary to their stated view. The route out would involve an appeal to which of the atypical ways of achieving a task are relevant or significant and this, as noted, takes us beyond the appeal to mere species norms. (As Sect. 6 will consider, this route is open to me since I am explicitly committed to a principle that identifies which of the various ways of performing atypical functionings are disabling.) Accepting an account of impairment grounded in species norms does not raise the problems that plague this approach to disability. First, impairment should be an expansive category. Thus, we need not resist the inclusion of the individual with the mild hearing impairment, and those with anxiety, depression, and chronic pain—and even those who cannot raise an eyebrow, or Michael Phelps. This does not imply that disability must be similarly all-encompassing since, unlike Buchanan et al., I explicitly offer a criterion to identify which of the associated restrictions are disabling. Second, if impairment is normatively neutral—synonymous with difference, not defect—it is not vulnerable to a final objection often raised against species norm accounts of disability. This is the worry that focussing on an idealised conception of normal species functioning entails a corresponding disrespect of, and insult to, those who fail to meet this ideal. For example: the whole ideology of normal functioning is seen as primarily constructed…to control and exclude disabled people from active and full participation in social Disability: a justice-based account 941 123 and institutional arrangements which have no interest in accommodating them. (Terzi 2009: 90) An account of impairment that is indexed to species norms merely acknowledges that many (or all) of us are not ‘normal’ in various ways and, whilst not problematic in itself, this can, in some circumstances, prevent us from having the opportunities we are entitled to. The same can be said of gender and racial identities and sexual orientation without implying any such identity is deficient. 2.3 Welfarist accounts The second account of disability I will consider is the welfarist approach. This is most clearly and explicitly defined and defended by Kahane and Savulescu (2009: 53), according to whom disability is a: stable physical or psychological property of subject S that tends to reduce S’s level of well-being in circumstances C, when contrasted with a realistic alternative, excluding the effect that this condition has on well-being that is due to prejudice against S. Thus, the relevant inabilities, on this view, are those that reduce welfare. Perhaps the most obvious problem with this account concerns the difficulties in developing an account of welfare. Whilst Kahane and Savulescu aim to remain neutral between alternative accounts, there are problems with any that might be incorporated. This reflects the more general difficulties with formulating a clear and satisfactory account of welfare, which cannot be rehearsed here. 8 However, in brief: first, a subjective account of welfare, relying on the individuals’ self-assessment, will inevitably raise reliability concerns. The various ways in which self-reported levels of happiness, contentment, or preference-satisfaction, can be misleading have been well-documented. 9 Yet moving toward a more objective understanding of welfare brings its own problems. For example, the difficulty of finding a non- arbitrary way of compiling a list of basic goods, or the worry that this list will entail the paternalist imposition of a perfectionist conception of the good, or that it will be elitist and exclusionary. Further, we may be sceptical about the implication that something can be considered good for someone independently of their attitudes towards it, and indeed, despite their own insistence to the contrary. A further problem in the social justice context is the epistemic difficulty of assessing welfare in many cases. For example, Kahane and Savulescu (2009) discuss the ‘Ashley treatment’, named after a child with severe cognitive impairments who was given treatment to restrict her further growth and prevent puberty. They argue that though this treatment moved Ashley further from the species norm, it lessened her disability since it improved her welfare. This stands in stark contrast to, for example, Eva Feder Kittay’s discussion of the case, in part 8 Some of the many contributions to this debate include: Scanlon (1975, 1998), Griffin (1986), Crisp (2006), Sumner (1996), Parfit (1984). 9 For example, Kahneman et al. (1982), Elster (1987), Khader ( 2011). 942 J. Begon 123 because Kittay employs a different understanding of Ashley’s welfare. She contends that ‘‘[w]e take pleasure and pride in our bodies as they grow and mature because…we do. Full stop. It needs no further justification. It is constitutive of a thriving life’’ (Kittay 2011: 621). Yet evidently Kahane and Savluescu do not recognise this value. These epistemic difficulties are especially intractable in cases such as Ashley’s where it can be hard to ascertain the view of the individual concerned, and far from clear that those who have not experienced this condition can understand what would be required for her to thrive. Thus, Kahane and Savulescu’s definition does not determine who is disabled, but simply moves the debate to a new context: finding a satisfactory account of welfare. This is an important gap in their approach. However, the fact they have not filled it does not mean it cannot be satisfactorily filled (though given how long this debate has raged, scepticism regarding its speedy resolution seems justified). Further, a welfarist might respond that disability should not be easy to define, and that my own approach will face similar worries—there is, of course, no consensus on what justice demands. However, these epistemic worries are, perhaps, deeper for welfarist approaches—at least for those that include an element of subjectivity in their account of welfare—since they necessarily require a direct reliance on first person testimony. Moreover, whilst we may not have reached agreement on a complete theory of justice, it might be easier to agree on basic entitlements and so basic injustices than it is to identify core instances of welfare deficit. Further, we may need to agree on certain essentials of a theory of justice, unlike welfare, if we are to determine how the benefits and burdens of social cooperation are to be distributed (Rawls 1999: 5). For example, it is, perhaps, easier to agree that individuals are entitled to equal political participation, opportunities for mobility, and the ability to form relationships than it is to show that all these capabilities will make all individuals better-off, given the existence of the idiosyncratic preferences of the politically apathetic, sedentary, and misanthropic. Thus, disagreements about what makes life go well may be harder to settle even in apparently core cases, as examples like Ashley illustrate. Yet welfarists could doubtless disagree. As such, noting the lack of a widely-accepted account of welfare raises a worry that demands a response, rather than providing a decisive refutation of the welfarist view. The deeper problem for this view is that, whatever account of welfare is used, disability will be ubiquitous, and this will prove problematic from the perspective of justice and public policy. As Kahane and Savulescu (2009: 30) openly acknowl- edge, disability will be a degree rather than a threshold concept. Thus, ‘‘everyone has disabilities of one kind or another’’. 10 I agree that there can be a degree of 10 Arguably, Terzi’s (2008, 2009) approach could also be included as welfarist. Terzi adopts a capability approach to disability, and so understands impairments as disabling insofar as they cause a loss of, or restriction in, capabilities. However, she understands the capability approach as an account of subjective well-being, and so considers the loss of capabilities to entail the loss of components of well-being. Thus, individuals are disabled by capability loss because this renders them worse off. For example, she suggests that whether a wheelchair user has a capability depends on her ‘‘most valuable ends’’ and her ‘‘attitude’’ (Terzi 2009: 99): if these are such that she cannot fulfil her goals as the result of being in a wheelchair ‘‘her well-being appears to be restricted…and hence the full set of capabilities available to this person is diminished’’ (Terzi 2009: 100). If we interpret Terzi as implying individuals are disabled whenever their Disability: a justice-based account 943 123 arbitrariness in determining the boundaries of disability. I agree, too, that we have reasons to expand this category (as Sect. 7 discusses). Nonetheless, we should be cautious of expanding it so far that it becomes meaningless, as it will be if it is a category in which everyone is included. If every stable physical or psychological property that lowers our welfare counts as disabling, then this definition does not seem to pick out the right cases—or, not only the right cases. At least, not in the context of social justice, where our concern is identifying disadvantage and determining how the state should appropriately respond. It is certainly worth emphasising that disability is a continuum, and that we are all restricted by the limitations of our bodies and minds. Nonetheless, when fighting against ableism and injustice, simply concluding that ‘we are all disabled’ is unhelpful. Similarly, we may wish to reject binaries of sexual orientation and gender identity, and deny that racial categorisation is possible, yet nonetheless find it useful to refer to ‘women’, and ‘gay people’, and ‘black people’ as a means of identifying, and fighting against, injustices against these groups. ‘Disability’, I contend, has value and meaning as a way of identifying, and responding to, disadvantage. The term has little function if entirely ubiquitous. 11 2.4 Barnes’s social constructionist approach Barnes, like many others, rejects the social model’s exclusive focus on external causes of disability, and emphasises that our understanding of disability should be grounded in an assessment of individuals’ physical features—or, ‘‘what their body is (really) like’’ (Barnes 2016a: 38). 12 However, she also emphasises that particular qualities are considered significant not because of their objective features, but because of how we think about them. Barnes further argues that those best placed to determine which features should be considered disabling are disability activists. Thus, ‘‘disability just is whatever the disability rights movement is promoting justice for’’ (Barnes 2016a: 43). Inclusion in the category of disability therefore depends on ‘‘rule-based solidarity among people with certain kinds of bodies’’ (Barnes 2016a: 46). However, there may be problems with relying on such rules. First, we should not unquestioningly accept the content of these rules. Whilst disabled individuals’ testimony should undoubtedly play an important role in developing an account of disability, it does not follow that the rules adopted by the disability rights movement will be free of bias. Individuals who already ‘count’ as disabled may have vested interests in excluding others from entering this group, and perhaps diluting the strength of their claims with the accretion of many others. This need not be a Footnote 10 continued well-being is restricted and capabilities diminished as a result of an impairment, then disability would also be ubiquitous on her account. 11 Further, though we do not want to replicate a common-sense understanding of disability, it should not be entirely divorced from our intuitions. Indeed, Kahane and Savluescu (2009: 19) themselves object to the species norm approach on this basis. 12 Barnes discusses only physical, and not cognitive, disabilities. 944 J. Begon 123 conscious process of exclusion. Individuals may simply tend to see their own impairments as the paradigm, and be less inclined to include those they are less familiar with. Thus, we should not assume that disabled individuals’ epistemically privileged position regarding their own experience extends to understanding the diverse experiences of all disabled people. 13 Nor can we assume that a group fighting against injustice will never unjustly exclude others. Consider, for example, the exclusion of asexual individuals by some in the LGBTQ ? community, or the exclusion of trans women by some feminists. The point is not that such exclusion is unjust, but that the question is not resolved by observing that existing members of the community determined these boundaries. 14 A related worry is that, given the heterogeneity that exists between and within such groups, disagreement about the content and application of the rules of inclusion seems likely, and difficult to resolve. Barnes (2016a: 49) acknowledges the diversity of disability rights movements, and allows that it may be ‘‘simply vague or indeterminate which social group is referred to…[as] ‘the disability rights movement’’’. Her response is to insist that ‘‘this entire domain…is riddled with indeterminacy’’ (Barnes 2016a: 49), and that it would be ‘‘deeply implausible’’ if it turned out that ‘‘any aspect of our complex, multifaceted social reality had fully determinate boundaries’’ (Barnes 2016a: 50). It is true that any definition will likely include borderline cases. Indeed, an account that provides a firm and unequivocal distinction seems to have missed something important about the category of disability. Yet even if the boundaries are somewhat indeterminate, we still need some sense of where they lie, and I am sceptical that the implicit rules used by disability rights movements will be sufficient for this task. 15 Further, I believe there are deeper flaws in Barnes’s approach, which can be seen by considering two criteria Barnes (2016a: 10–13) sets out for a successful account of disability: first, that it should not prejudge normative issues and, second, that it should deliver the correct verdict about paradigm cases. These criteria will not be met by my account, but I contend that an account of disability need not—and, indeed, should not attempt to—fulfil these criteria. Considering the latter first, it is not clear why it would be a virtue of an account to be ‘correct’ about paradigm cases. Whilst we may worry about an approach that bears no relation to our understanding of disability—for example, an account that includes homosexuality— we should also be aware that our sense of the ‘paradigm’ is often informed by intuitions that are based on prejudice about, and misunderstanding of, disabled lives. 16 As noted, these worries may not be solved by allowing those who are already considered part of this ‘paradigm’ to be the arbiters of who else will be included. 13 For a discussion of the impact of restricted information on the reliability of individuals’ choices and preferences see Begon (2018a). 14 Similar worries are raised by Campbell and Stramondo (2016), Wasserman (2018), and Howard and Aas (2018: 1127). 15 Also see: Wasserman (2018: 254), Howard and Aas (2018: 1115), Francis (2018). 16 As Sect. 7 considers and Barnes (2016a: 119–142, 2009) herself has pointed out. Disability: a justice-based account 945 123 Next, Barnes (2016a: 11) insists that ‘‘[i]t should not be built into the very definition of disability that disability is something that’s bad or suboptimal’’. However, it is only important that disability be value-neutral if we follow Barnes in rejecting the distinction between impairment and disability. 17 If we accept this distinction, we can allow that disability is necessarily disadvantageous and still maintain a normatively neutral account of impairment, capturing the heterogeneity of human bodies and capacities, which may be disadvantageous in some contexts but need not be so. This does not undermine the possibility of being proud of our diverse bodies and minds. However, conflating these terms makes it near impossible to achieve the twin goals of recognising that diversity need not be negative, and that it can be correlated with disadvantage, which must be identified to be rectified. Barnes meets her own criteria, and so argues that disability is a ‘mere difference’. Yet this does not mean it has no effect on individuals’ lives. On the contrary, it ‘‘may be good for you, it may be bad for you, it may be utterly indifferent for you’’ (Barnes 2016a: 98). Indeed, Barnes allows that being disabled may sometimes lower overall well-being, that some aspects of some disabilities are bad-differences (Barnes 2016a: 75), and even that some specific disabilities are bad simpliciter [something that makes ‘‘your life go worse in virtue of it specifically’’ (Barnes 2016a: 87; 102)]. By including diverse conditions within this wider category, it becomes true that disability is not necessarily a bad-difference, but this category still encompasses conditions (whether few or many) that are bad-differences.18 Clearly, then, Barnes does not believe that ‘‘the positive effects [of disability] have to balance the negative ones’’, and accepts that ‘‘in the world we inhabit, disability tends to significantly reduce one’s good options’’—contra the claims of some of her critics (Kahane and Savulescu 2016: 777, 776). 19 Nonetheless, espousing a ‘value-neutral model’ or ‘mere-difference view’ of disability can be importantly misleading, especially if this is used to ground general claims about the kinds of policies that should be pursued with regards to disability. Certainly we should acknowledge that it is ‘‘simply untrue that, as a general rule, disabilities are bad for those who have them’’ (Campbell and Stramondo 2017: 176). Thus, claims rooted in the general assumption that someone’s life will be worse simply because they have ‘a disability’ are unjustified. 20 However, we should also avoid grounding claims about policy on the assumption that all disabilities should be treated as neutral simply because this category incorporates conditions with good, bad, and neutral effects. For example, we may accept that disability is a mere-difference in Barnes’s sense, but still believe, contra Barnes (2014, 2016a), that it is sometimes wrong simpliciter to cause some disabilities.21 Amalgamating all disability into a 17 See Begon (unpublished) and Sect. 2.1 for a defence of this distinction. 18 In other words, Barnes’s conception of neutrality is very weak (see Wasserman 2018: 254–256; Hawkins 2018: 463–466; Dougherty 2014). 19 For Barnes’s response, see Barnes (2016b). 20 More precisely, since unlike Barnes I distinguish impairment and disability: because they have an impairment widely assumed to be disabling. 21 See Begon (2018b); Wasserman (2018: 255). 946 J. Begon 123 general ‘value-neutral model’, then, can obscure the disadvantage that can be associated with impairment. 22 How problematic this is may depend on the context in which our account of disability is employed. My focus here is relatively narrow: aiming to develop an account that can guide theory and policy that aims to identify and mitigate the disadvantage associated with physical and cognitive difference. Such policies should be nuanced and individualised, as I will argue. They must acknowledge that some impairments, for some people, in some contexts, are not neutral—or merely ‘‘a minority body’’ (Barnes 2016a: 1)—and should not be treated as such. Thus, in this context, at least, it seems unwise to remain committed to a unified category of disability so broadly construed. Like the welfarist account, then, Barnes’s approach shifts the focus of the debate rather than settling it: determining how to respond to disability will require identifying which aspects of which disabilities are bad differences. Neither approach settles the question of when disability is a disadvantage of the kind the state should mitigate. Thus, neither approach can form the basis of public policy or political activism. Whilst we must have a value-neutral account of physical and cognitive difference (which I call impairment), we also need a concept that can play a role in political debates about when difference is disadvantageous, what constitutes injustice towards disabled individuals, and the policies that should be pursued to respond to this. 3 Which inabilities matter? Not all restrictions in individuals’ capacity for activity and participation are disabilities: we are not disabled if we cannot sing, cannot stand on one leg, or cannot raise an eyebrow. This is so even if these abilities are species normal, and even if restrictions in them decrease our welfare. I argue that the relevant restrictions are in abilities that individuals are entitled to be able to perform. I will begin by considering a specific application of this approach: the case of deafness. The impairment here is the inability to hear, whilst the disability is the reduction in relevant opportunities that may arise when most people communicate via speech, such as difficulties in political participation, access to appropriate education, and forming meaningful relationships. Deaf individuals are not disabled on the basis that they are unable to hear music, or the voices of their loved ones. However, this need not be because opportunities for aesthetic experience or forming relationships are 22 As such, Campbell and Stramondo’s (2017: 163–165) suggestion that disabilities are intrinsically neutral, but not instrumentally, comparatively, or overridingly neutral, seems a more plausible and nuanced view. Nonetheless, there may be reasons to worry that their account could also be employed in a way that obscures disadvantages associated with impairments insofar as they tend to consider disabilities ‘‘in isolation from their effects’’ (Campbell and Stramondo’s 2017: 163), where this is usually taken to mean those that are most obviously detrimental to well-being. It is not clear that uncontroversially harmful elements of impairments such as pain, fatigue, or disturbed or depressed emotional states can be meaningfully isolated from these conditions. However, I lack the space to defend this claim here (see Begon (unpublished)). Disability: a justice-based account 947 123 not considered central entitlements. On the contrary, they may well be central—we simply do not need to hear music or voices to have them. Being entitled to opportunities in a domain need not require having every opportunity. Thus, if deaf individuals have access to other aesthetic experiences, their inability to hear music is not a concern of justice. Indeed, if deaf individuals have all the opportunities they are entitled to, they are not disabled. My claim, then, is that individuals are disadvantaged when their access to their entitlements is restricted, and disabled when this results from an impairment (in combination with context, resources, and personal characteristics). 23 Thus, individuals with the same impairments may not be identically disabled, and individuals’ status as disabled may change over time even if their impairment does not alter. Rightly, then, we cannot know whether an individual is disabled merely from information about their impairment. The account is intended to be a framework into which various theories of distributive justice can be incorporated. Accepting the general claim that individuals are disabled when their impairments restrict their access to forms of activity and participation they are entitled to does not require accepting a particular conception of entitlements. However, there is (at least) one approach to distributive justice that cannot be incorporated. My account distinguishes what individuals are entitled to from what merely decreases their welfare. As such, it cannot accommodate those welfarist approaches that consider anything that lowers individuals’ welfare—whether state oppression or stubbing our toe—to constitute a relevant disadvantage. Subjective accounts, which do not distinguish the different reasons for a decrease in hedonic state or the different sorts of preferences individuals may care to have satisfied, would collapse into the welfarist accounts discussed in Sect. 2.3 and so face the same worries about over-inclusiveness and the ubiquity of disability raised there. 24 My approach relies on the general anti-welfarist intuition that ‘‘[s]ome deprivations of capabilities [or resources] express greater disrespect than others, in ways any reasonable person can recognize’’ (Anderson 1999: 332). This distinction is employed widely in the distributive justice literature, by theorists who disagree on 23 This approach may seem similar to Haslangerian models of disability (see Haslanger 2000; Barnes 2016a: 28–38; Howard and Aas 2018), and certainly shares the goals of her ameliorative project. On one plausible iteration of a Haslangerian account, to be disabled is to be in a bodily or psychological state assumed to be an impairment in the prevailing ideology, where this marks one out for pity, stigma and exclusion, and where the fact one is in this state plays a role in one’s systematic disadvantage (Howard and Aas 2018: 1113, 1128–1129). Unlike the account I defend here, this approach is focused not on the specific ‘‘valuable activities’’ individuals are excluded from Howard and Aas (2018: 1113), but with the cause of this exclusion: that it results from possession of a feature that, within the dominant ideology, marks one for this exclusion. As such, this view will be more and less inclusive than my own. Individuals may be disabled though they face very little actual disadvantage [for example, Oscar Pistorius (Howard and Aas 2018: 1129)]. Further, individuals may not be deemed disabled though they face a restriction in opportunities they are entitled to due to atypical bodily or cognitive functioning, if this atypicality is not assumed to be an impairment in the prevailing ideology (for example, the case of obesity discussed in Sect. 7, which though clearly stigmatised is not generally pathologised as an impairment in Howard and Aas’s sense). 24 It is worth noting that it is both implausible that individuals are disabled by anything that lowers their subjective welfare, and implausible that such individuals lack what they are entitled to as a matter of justice, though I cannot defend this stronger claim here. 948 J. Begon 123 much else, and has strong intuitive pull. 25 It is the suggestion that individuals should be entitled to vote in elections, to be mobile, and to access educational opportunities, but are not entitled to access every ride in an amusement park, or a sports car, or an expensive musical instrument—and that this is so even if they would prefer these latter opportunities, and they would have a greater positive impact on their welfare. In other words, this is the claim that only some domains of life are the concern of justice, and that the scope of these domains is not determined by individuals’ preferences. Beyond this restriction, then, adopting a specific theory of justice is not a prerequisite to accepting my account of disability. However, it is difficult to defend this account in the abstract, and cumbersome to run through every possible way to cash out individual entitlements. Thus, I will talk in specific terms, employing an approach with three key features. First, I will assume individuals are entitled to capabilities, understood as control over certain domains of their life, rather than merely access to resources (Begon 2017). Second, our conception of entitlements should be relatively thick: not merely entailing the fulfilment of basic needs, but including access to opportunities such as forming social relationships, engaging in leisure activities, and enjoying aesthetic experiences. Finally, I assume that individuals are entitled to broadly specified opportunities, and not particular or identical functionings: for example, opportunities for aesthetic experiences, mobility, or communication, and not hearing music, walking, or talking. 26 These features have not been selected at random. I believe there are good reasons to opt for an account of distributive justice with these features, and that reflection on disability can help demonstrate why this is so, as much of the subsequent discussion will illustrate. However, I certainly cannot definitively refute all alternative understand- ings of entitlements here, so will leave it to their adherents to demonstrate how they can navigate the issues disability raises. 4 Feasibility, levelling-down, and thinning-out I will now outline some possible objections to the account I have sketched, and in responding to them in subsequent sections will elucidate my account. First, it may be objected that if being disabled means lacking opportunities we are entitled to, then impairments that result in the loss of significant opportunities will not be considered disabling if we cannot prevent this loss, since we cannot be entitled to an opportunity it is impossible to provide. Thus, if, due to lack of medical or technological knowledge, or merely lack of resources, we cannot prevent 25 For example, Anderson (1999), Dworkin (2000: 61), Carter (2014: 84–85). I will not defend this distinction here (see Begon 2016). 26 Approaches that accept some version of the second criterion but not the third—i.e. an expansive, but narrowly specified set of entitlements—are common (arguably including: Dworkin 2000; Nussbaum 2000; Cohen 2011; Rawls 1999; Anderson 1999). I have defended the third criteria elsewhere (Begon 2017). Also see Asch and Wasserman (2005) for an argument that individuals need not have access to every opportunity. Disability: a justice-based account 949 123 individuals being rendered immobile, unable to communicate, or to form relationships, then they cannot be entitled to these opportunities, and cannot be considered disabled by their absence. If this were so, serious impairments—perhaps the most serious impairments—would not be considered disabling on my account. Clearly, this would be very counterintuitive. Further, this understanding of our entitlements presents a dilemma. On the one hand, this may lead us to conclude that individuals with serious impairments should simply have different entitlements. That is, if some individuals can only be provided with a restricted set of opportunities, then their entitlements are correspondingly diminished. On the other hand, we may wish to resist this tiered, non-universal approach to entitlements, and insist instead that all humans are entitled to the same opportunities (though not, of course, to the same outcomes). Yet this seems to imply that the content of everyone’s entitlements should reflect the unavoidable constraints on some individuals’ functioning. In other words, that we can be entitled only to what can be provided to all. If we grasp this latter horn, the content of our entitlements might start to look rather thin. This is implausible in itself and will generate an implausible account of disability if my approach is employed. For example, if we cannot currently enable everyone to control their mobility then no one can be entitled to this opportunity, and individuals whose control over their mobility is impaired are not disabled by their inability. However, this is an artificial dichotomy. If we reject an implausibly strict egalitarian view, according to which everyone must be enabled to perform an identical set of functionings, and instead consider individuals to be entitled to generalised opportunities—for example, mobility, not walking (i.e. the third criterion outlined above)—then it may seem that everyone can have the same entitlements. Thus, we can avoid a tiered approach without levelling-down our entitlements to include only those capabilities to function that can be universally provided. That is, we should recognise that capabilities are multiply-realisable, and treat different functionings as interchangeable and equally valuable. This will mean that many individuals with impairments can have the opportunities they are entitled to even if there are some functionings they cannot perform. Thus, even if we were to limit our entitlements to those that could be provided universally, this might eliminate less than it initially seems. Nonetheless, this response will not prove fully satisfactory. First, even if the opportunities individuals are entitled to are generalised and multiply-realisable there will still be some cases in which they cannot be provided. Staying with the example of mobility: though individuals with many mobility impairments can be enabled to control their mobility, this may not be possible for individuals with locked-in syndrome. Further, the very focus on multiply-realisable capabilities may generate a further objection about the ‘thinning-out’ of individuals’ entitlements. It might seem that if those who use a wheelchair have sufficient opportunity to be mobile, then they have all they are entitled to. Thus, if, for example, it were possible to restore functioning to a paraplegic person’s legs, even at very little cost, they would neither be entitled to demand this from the state nor considered disabled if the treatment were not provided. This is an instance of the more general worry that sufficientarian approaches, by only ensuring individuals reach some threshold of achievement, may 950 J. Begon 123 fail to eliminate radical, and potentially unjust, inequalities above this threshold. If capabilities can be experienced in various ways, then individuals are neither considered disabled by their inability to perform specific functionings (walking, talking, hearing, seeing) nor entitled to be enabled to perform them, just as long as they have more general capabilities (for mobility, communication, leisure, aesthetic experiences) at some appropriate level. I will now respond to these objections. 5 Identifying distributive entitlements I turn, first, to the objection that individuals with serious impairments will not be considered disabled if the opportunity loss associated with their condition cannot be avoided; and, further, that we will therefore face the dilemma of either decreasing entitlements for this subset of individuals or levelling-down entitlements generally. This is based on the assumption that the demands of distributive justice must be realisable: that if an individual is entitled to something, it must be feasible to provide it to them. However, we need not accept this assumption. 27 It is quite plausible to suggest that we are currently unable to rectify some instances of injustice. Thus, some individuals may not be able to access opportunities that justice requires they have. If a just state of affairs is not currently realisable then they cannot have a claim that anyone now provides these opportunities, though they do have a claim that we work towards a situation in which their provision is feasible. If, for example, we believe all humans are entitled to control over their mobility, then this cannot mean the state has an obligation to provide this to someone with locked- in syndrome if this is impossible. However, they do have an obligation to enable them to have such control if it were, and to work towards releasing this state of affairs. Further, the individual with locked-in syndrome is disabled because they cannot be provided with an opportunity that they should have access to: that they should be enabled to perform if this were possible. A situation in which some individuals lack opportunities that everyone should be entitled to may be unjust, then, even if no one is guilty of causing this injustice and no one has a direct duty to rectify it. Some may find the suggestion that entitlements should be conditional in this sense implausible: how can we be entitled to something no one has a duty to provide? It is worth noting, first, that the alternative approach has similarly unappealing implications: if we want a universal list of entitlements and can only include items on this list when they can currently be provided to every individual, then we may not even have a general right to nourishment, say, if it is currently logistically impossible to ensure everyone has this opportunity. We may, therefore, accept that some entitlements should lack a feasibility constraint, but believe these conditional or proto-entitlements should be distinguished from entitlements proper, where the former are what all individuals are (conditionally) owed as a matter of justice and the latter are those claims that we can press against a 27 I cannot attempt to conclusively refute the feasibility constraint on justice here, but for an excellent argument for its rejection, see Gheaus (2013). Disability: a justice-based account 951 123 specific duty-bearer. The former constitute part of the content of a theory of distributive justice: the list of capabilities (or primary goods or human rights) to which all individuals have a (conditional) entitlement, even if they temporarily cannot be provided with every item on this list. Indeed, this captures what seems so objectionable about situations in which individuals do not have the opportunities (or resources, or rights) we think they ought to: individuals may not be wronged when they cannot be mobile, or nourished, and so on, but they should have these opportunities if it were possible and we should work to make this so. The important point is not the choice of terminology, but the general claim that the set of entitlements specified by a theory of distributive justice are, in a sense, owed to all, even when this obligation cannot feasibly be met. The sense in which they are owed is that these opportunities (resources, rights) should be provided if they can be, and that the state (or other relevant body) should not artificially limit the boundaries of the possible. This means that not all disability will be the result of unjust behaviour—though, of course, some will be. Sometimes the state may fail to fund research to develop technologies that increase impaired individuals’ function- ing capacity, or design material infrastructure in avoidably exclusionary ways. Yet sometimes the restrictions to individuals’ entitlements may be ineliminable and unavoidable: perhaps due to natural obstacles, perhaps due to competing claims on a limited pool of resources, or to conflicts between different forms of accommodation (certain policies may render some impairments non-disabling (indeed, may be the only way to do so) whilst at the same time exacerbating others). Thus, the content of our (conditional) universal distributive entitlements should not be determined by what it is feasible to provide universally. Understanding entitlements in this way means we need not grasp either horn of the above dilemma: we can have a universal set of entitlements that is not levelled- down to include only those opportunities that can be achieved by all. However, this does not imply that the content of our entitlements can or should take no account of feasibility whatsoever. We could, for example, take the view that humans should be entitled to the opportunities necessary for a decent life, where this will be informed by our reasonable expectations of what such a life entails. On this view, controlling our mobility might be central to such a life; the ability to fly would not be. Further, the content of our reasonable expectations for a decent life can be predicted to change over time, as technology improves. The point, here, is not to identify the specific content of our distributive entitlements, nor even to outline the method by which they would be determined. Rather, it is to note that this might depend on what it is possible for humans to do, and on what we think humans ought to be able to do, without implying that all these entitlements must currently be achievable for every human. In other words, entitlements can be indexed to what is feasible for most, without requiring that they can be provided to all (though we should strive to achieve this). Two further objections may be raised against this response. First, if our entitlements depend to some extent on our reasonable expectations about a decent (or dignified, or flourishing) human life, and our expectations are informed by what humans, as a species, can generally do, then this might seem to collapse into a species norm approach. That is, our entitlements are simply identical to species- 952 J. Begon 123 normal functionings. Yet this is not the case. Even without specifying the content of our entitlements we can see that they will be both narrower and broader than species-normal functionings. They will be narrower, first, because on any plausible view trivial human capabilities will not be central entitlements (the ability to roll our tongue, sing, or stand on one leg). Individuals who thus deviate from the species norm do not lack opportunities they are entitled to. Our entitlements are narrower, too, if understood as general opportunities, rather than the performance of specific functionings. An individual can have what they are entitled to (the capability for mobility, say), even if there is a species-normal functioning they cannot perform (walking using their own legs). Additionally, our entitlements will be broader, since we may be entitled to more opportunities than those that are ‘natural’ or normal for our species. 28 As medical, social, and technological progress expands the scope of human capacities, our reasonable expectations of a decent life and the opportunities we should be entitled to will surely reflect this. A second objection concerns the potential ambiguity regarding when it is ‘feasible’ to provide an opportunity, given that this may require radical expense of time or resources. There are two forms of this worry. First, if we could all be enabled to fly, say—if the government were to divert all research funding to this project—then should this opportunity be an entitlement, which we are disabled in the absence of? Clearly the answer is no. When this is a mere abstract possibility, such a functioning is unlikely to feature in our reasonable conception of a decent life, or what we can reasonably expect from the state. However, I would concede that if a way of enabling humans to fly were discovered and made available to the majority, then we might expand our conception of our entitlements to include this. 29 In this imagined scenario this is no more a reduction ad absurdum of my approach than acknowledging that individuals’ capacity for mobility should take account of modern transportation and that, as such, someone who could only get around at the speed and distance walking and running would usually allow may not have what they are entitled to in this domain. To emphasise: insisting that we can be entitled to opportunities it is infeasible to provide universally does not mean our entitlements must be entirely unmoored from what is feasible for most. Second, and perhaps more troubling, are cases in which an opportunity is available to most individuals, but can only be provided to a minority at great expense. For example, if an individual with locked-in syndrome can control their mobility only with an extremely expensive piece of equipment, are they entitled to it? No doubt there will be many difficult cases, but our approach to such questions must involve weighing up the capabilities provided to the minority against those lost by the majority. Thus, if the cost of providing this equipment meant others suffered premature death or significant impairment then the individual surely cannot be entitled to their mobility in the face of these costs. In this case, we can continue to 28 The species norm approach will be restricted to ‘natural’ human abilities if we follow Daniels (1985: 28) and derive it from the ‘‘design of the organism’’, rather than ‘‘merely a statistical notion’’. 29 Thanks to Paul Billingham for pushing me to clarify this point. Disability: a justice-based account 953 123 say that it is impossible for the individual to be mobile and they are unavoidably disabled, since their entitlements cannot be provided at a reasonable cost. 30 6 Beyond minimal functionings I now turn to the worry that understanding entitlements as general, multiply- realisable opportunities will mean that individuals will not be considered disabled even when they lack important opportunities. First, I consider Anita Silvers’s objection to what she takes to be capability theorists’ approach to educational provision for individuals with impairments. This, she claims, would only provide ‘‘educational opportunity adequate for a dignified life, which…may not even…rise to the level of average educational attainment’’ (Silvers 2009: 181). Silvers discusses a child with a hearing impairment, who struggles to catch all the information imparted in class due to the difficulty of lip-reading in this context. Nonetheless, she is denied a translator since her educational attainment is already above average (Silvers 2009: 177–182). Silvers objects that it is unfair that children with impairments are unable to fulfil their potential simply because their educational environment is not designed to support them. Further, it might seem that, on my view, these children would (implausibly) not be considered disabled by this restriction in their access to education, because ‘they already have what they’re entitled to’. However, contra Silvers, a decent education surely requires more than the opportunity for some minimal educative outcome, such as passing grades. 31 More plausibly, this requires something like ‘the opportunity to develop our potential to a similar degree as our peers’. This must be at least part of the goal of education, and we would fail to show individuals equal concern and respect if we provided this to some and not others. 32 This does not mean that there will not be difficult cases, where the needs and requirements of different children pull in different directions, and limitations of resources mean that an ideal learning environment cannot be provided for everyone. However, as discussed, the fact that something cannot 30 This does not imply scarcity is wholly irrelevant to our entitlements. Again, my claim is only that the possibility of universal provision is not a prerequisite to something being an entitlement. Feasibility, including considerations of scarcity, may play a role in determining where the boundaries of our entitlements lie: for example, as discussed, via informing our reasonable expectations about the shape of a decent life. Returning to the above example, if individual jet-pack technology were created but was prohibitively expensive and/or relied on a resource too scarce for it to be made available to all, then this is not likely to feature amongst our reasonable expectations and thus our entitlements. In contrast, if this could be provided near-universally, became the dominant mode of transport and a prerequisite for participation in various aspects of social and political life, then this may be amongst our (conditional) entitlements. 31 The same is true if we focus on other criteria to identify entitlements, such as leading a dignified or flourishing life. Indeed, if a criterion did not have this implication, this would surely count as a reason against its adoption. 32 See Terzi (2008) for a capability approach to education for children with impairments. 954 J. Begon 123 currently be universally provided does not mean that we cannot reasonably include this amongst our entitlements. Yet it may be objected that education is a special case. Whilst the very goal of education involves enabling individuals to develop their talents and abilities, having opportunities for mobility, communication, or leisure surely does not require being able to fulfil our potential in these domains. It seems much more plausible to suggest that we are here entitled to something like acceptable options and the capacity to meaningfully choose between them. As such, individuals who achieve mobility with a wheelchair rather than by walking, or communicate using Sign rather than speech, or look at art because they are unable to listen to music, are not considered disabled by this restriction in their ability to function; nor would they be entitled to an operation to restore the use of their legs, or cochlear implants to restore their hearing, even if this would not be costly. In these cases, I would bite the bullet—though with some important caveats. I would accept, then, that if we lived in circumstances in which individuals with impairments had all the opportunities they are entitled to then they should neither be considered disabled nor necessarily entitled to state assistance. For example, if an individual with a mobility impairment could control their mobility without being dependent on others, then they may not be entitled to be enabled to walk. 33 Similarly, a deaf individual who had access to leisure activities and aesthetic experiences (and every other capability they are entitled to) would not be entitled to cochlear implants to allow them to hear music. Nor would these individuals be considered disabled. The caveats, though, are to point out, first, that often individuals with impairments do not have what they are entitled to. In many cases the restrictions in their capabilities are avoidable, and could be eliminated by changing social infrastructure and norms. However, this is not always so. In some instances, this is because we lack the technology or resources to prevent some impairments from restricting individuals’ opportunities. In others, this is because individuals’ needs conflict, and there is no way to structure the external environment that would eliminate all restrictions. For example, ‘‘[p]eople with mobility issues who do not use wheelchairs may find that steps are safer and easier for them than ramps…[w]heelchair users may have problems with tactile paving which gives locational cues to visually impaired people’’, and so on (Shakespeare 2006: 46). These cases can prove as intractable as those in which we simply lack the ability to institute the relevant change. As such, the appropriate way to mitigate the disadvantage associated with an impairment may not be to change the environment, and this might be so even when the disadvantage is a result of that environment. Thus, to conclude that if an impairment were not disabling (did not result in relevant restrictions) an individual would not be entitled to state assistance does not imply that now, or in the near future, treatments that mitigate impairments would not be provided. 33 Exactly how much of their environment would have to be inaccessible to conclude that an individual lacks control over their mobility is ambiguous, and I will not attempt to settle this question here. Disability: a justice-based account 955 123 The second caveat is to note that suggesting that such treatments may not be a matter of entitlement does not imply that they are banned or restricted. Any liberal approach to distributive justice will aim to ensure both fairness in distribution, and individuals’ freedom to form and pursue their own conception of the good. Thus, if an individual desires to walk, or hear, or see, they will not be prevented from pursuing these goals. Indeed, in a situation in which individuals had access to all the central capabilities (or primary goods, or equality of Dworkinian resources) there would be sufficient resource equality that individuals would have the ability to achieve these goals (especially on the above assumption that these treatments are inexpensive). Indeed, my account does not even rule out state provision or subsidy of these options on the grounds of public choice, if the decision is procedurally just and does not divert resources from the satisfaction of actual entitlements. 34 One final sense in which our entitlements might seem too minimal on my approach relates to an objection earlier raised against the species norm approach. This is, that by focussing on what individuals are able to do, I take insufficient account of how much more difficult this may be when we have an impairment. Someone who uses a wheelchair, for example, may have the capability for mobility, but this will often be restricted by both the built and natural environment. Thus, they may find travelling much more physically demanding than, for example, walking a similar distance. Or, an individual in chronic pain may be able to perform all the functionings that a person without this condition can, yet they must struggle against the pain that accompanies every functioning they perform. I certainly want to resist the implication that the difficulty of performing tasks would not be considered a relevant dimension of disadvantage, and that individuals who experience such difficulty would not be considered disabled, nor entitled to assistance to mitigate it. Whether this is indeed an implication of my approach depends on the sensitivity of our conception of distributive entitlements not just to what we can do, but also to the pain and effort that must be expended to do it. I would contend that such concerns should feature in our understanding of individuals’ entitlements. 35 Although I cannot provide an independent defence of this here, it is important to note that insisting that a theory of distributive justice is sensitive to these considerations is not merely a post hoc modification to ensure that my definition of disability remains plausible. On the contrary, the above examples give us reason to think that individuals should be entitled not just to the mere capacity to perform some functionings, but to be able to do so without associated pain, and without having to expend massively more energy than others to achieve the same outcome. Thus, the point is not that an account of our entitlements that ignored the pain and effort required to achieve them would generate an implausible account of disability if my framework is employed, but that this would be an independently implausible account of our entitlements. 34 Thanks to Carl Fox for helping me clarify this point. 35 For approaches that do so, see Wolff and de-Shalit (2007), Wolff (2009a, b), Cohen (2011), Anderson (1999). It may be a problem with Nussbaum’s (2000, 2006) and Sen’s (1999, 2009) approaches that they do not clearly incorporate such concerns. 956 J. Begon 123 7 What counts, who’s disabled? I will finish by considering whether my account will prove to be too revisionary. Certainly, the impairments that would be considered disabling do not neatly cohere with our intuitions in a number of cases. As emphasised from the outset, my account will imply that individuals with visible impairments may not be disabled by them, that individuals with seemingly minor or invisible impairments may be disabled, and that individuals’ status as disabled may change across time and context. However, far from giving us reason to reject this approach, this is one of its key benefits. As Sect. 2.4 discussed, there is little point in devising a definition that captures all paradigm case when we have good reason to think the paradigm is informed by prejudice and misinformation. First, many paradigm impairments, such as deafness, blindness, paraplegia, achondroplasia (a common form of dwarfism), ASCs, and Down’s syndrome need not be disabling on my account. If individuals have the opportunities they are entitled to—perhaps as a result of adequate infrastructure, access to resources, and lack of bias—they will not be considered disabled merely on the basis of their impairment. Disability does not consist in bodily or cognitive difference, but in specific opportunity losses that might result. This does not imply that we cannot campaign for the better treatment of individuals with impairments, or for their access to their entitlements. However, we should not assume that having an impairment, especially a visible impairment, must be disadvantageous. We should, instead, focus on the specifics of each case and determine whether an impairment is actually associated with restrictions in individuals’ activity and participation. The reality often will not accord with our unexamined intuitions. 36 My approach will also produce deviations from the paradigm in the other direction: many non-paradigm cases, such as depression and anxiety, and even obesity or shyness, might be disabling. Further, individuals who have body integrity identity disorder (the strong desire to amputate a healthy limb) may be disabled by being prevented from undergoing this amputation, insofar as living with a limb they disassociate from disrupts their access to capabilities: for example, making social interaction difficult. 37 I will consider perhaps the most controversial of these examples: obesity. I am aware that both disabled and obese individuals will likely object to this implication, given the unjustified stigma attached to both labels. It is worth emphasising, then, that though I consider an obese body an impairment (after all, it is a deviation from the species norm), I am not suggesting that it worse, or 36 As noted in Sect. 2.1, part of the motive behind the introduction of the social model, and the rhetoric of claiming that ‘‘disablement is nothing to do with the body’’ (Oliver 1996: 35), was to resist the medicalisation of disability and to highlight the contingency of the connection between impairment and disadvantage. 37 For discussion of these cases, see Bayne and Levy (2005), Müller (2009). Disability: a justice-based account 957 123 necessarily disadvantageous, to have such a body. However, this is a dimension of difference, like many others, that may be associated with disadvantage. 38 My focus is not the possible (and sometimes controversial) correlation between obesity and health conditions such as high blood pressure, diabetes, heart attack, or stroke. Even leaving these aside merely having an obese body can be disabling. Our built environment is made for human bodies of a particular size and weight. As Gay (2017: 184) says, ‘‘[t]here are very few spaces where bodies like mine fit’’. One simple and important example is chairs: aeroplane seats, restaurant booths, lecture theatres, cinema seats. If these cannot accommodate individuals with larger bodies, this can be hugely restrictive to those who possess them, limiting opportunities to be mobile, to access education, or to engage in many leisure activities. In addition, an obese body may be restrictive independently of the design of material infrastructure, rendering ‘‘impossible’’ activities like standing for long periods or walking a mile uphill (Gay 2017: 16). Finally, the bias, stigma, and abuse obese individuals are often subject to, the commentaries on their bodies by friends, family, medical professionals, and strangers, and the assumptions made about their capacities may further limit their capabilities. Options may be closed to them because others assume they are incapable of exercising them (for example, not being offered certain jobs), or they may lack internal capabilities (for example, not feeling qualified to apply for these jobs in the first place). 39 In all these ways, obesity—like other forms of physical and cognitive difference—can be disabling. The final counterintuitive implication is that what counts as a disability on my view will be contextualised, and may change over time. This can happen in at least three ways. First, as society becomes better able to accommodate impairments, and enable different forms of functioning, then these impairments will cease to be disabling. This is not because these impairments are ‘cured’, but because their link with disadvantage is severed. For example, if the oft-discussed examples of deafness and mobility impairments no longer lead to capability loss, then individuals with these impairments may not be disabled, though they still cannot hear or walk unaided. Whilst this may seem counterintuitive to some, it accords with the experience of many disabled individuals, who do not regret, or demand compensation for, the different ways they function. Consider, for example, Harriet McBryde Johnson’s (2003) account of the pleasures of wheelchair use, and the misperceptions of those who do not use one: I used to try to explain the fact that I enjoy my life, that it’s a great sensual pleasure to zoom by power chair on these delicious muggy streets, that I have no more reason to kill myself than most people. But it gets tedious…they don’t want to know. They think they know everything there is to know just by 38 There are, of course, some differences correlated with disadvantage that we would not want to describe as disabilities, such as our gender or racial identity, or sexual orientation. As Sect. 2.1 considered, this need not be an implication of my view. 39 In Nussbaum’s (2000: 84) terminology, internal capabilities are ‘‘developed states of the person herself that are…sufficient conditions for the exercise of requisite functions’’. Whether restrictions in internal capabilities constitute a loss of entitlements depend on the conception of entitlements we employ. Again, such examples may give us reason to incorporate them. 958 J. Begon 123 looking at me. That’s how stereotypes work. They don’t know that they’re confused. Second, as our capacity to provide opportunities changes, individuals may be entitled to more if the content of our entitlements depends on our reasonable expectations. For example, we now expect leisure time, aesthetic experiences, and a longer life than previously. Impairments that restrict access to these new entitlements will then count as disabling, though individuals’ actual abilities have not changed. One example here might be (some forms of) dyslexia. In a context in which many are illiterate, this is unlikely to be disabling. In a context in which a grasp of the written word is a prerequisite for many other opportunities, it would be. Thus, dyslexic individuals may become disabled over time, or by moving. Consider, for example, a dyslexic girl who emigrates from rural Gambia, where illiteracy is rife and educational infrastructure underdeveloped, to the UK, where she has better access to education, though her dyslexia is not fully accommodated. Whilst she is now less disadvantaged (she now has access to education), she may also become disabled insofar as it is now her impairment that restricts her access to education (where previously it may have been poverty or sexism). Again, this seems to be the right way to understand such cases. Lastly, individuals who have impairments that involve periodic and perhaps unpredictable flare-ups, such as fatigue and pain conditions, may have a changeable disability status. Some will be disabled only during a flare-up, some may be disabled during periods when flare-ups are common, and for some the mere possibility of a flare-up may render them consistently disabled. For example, an individual with epilepsy may never be able to drive a car, or an individual with ME may struggle to retain employment if their impairment necessitates frequent absences. 8 Conclusion It is a consequence of my approach that individuals are not categorised as disabled in the way we might expect, and that who is included in this category may change. Yet surely it is right to set aside our preconceptions about how bad some impairment must be and focus instead on the actual restrictions individuals face, and on which of these should be the focus of our concern. What matters—what is disabling—is that individuals are rendered (often contingently) unable to be mobile, unable to communicate or form social relationships, or unable to access education or meaningful work as a result of their impairments. Not that they are unable to walk, unable to listen to music, or unable to read emotional cues easily. Whatever account of distributive justice is used, then, my approach to disability will be revisionary and contrary to many common-sense intuitions about who is disabled. However, these implications constitute a feature, not a bug. Our present intuitions concerning what constitutes disability often reflect prejudice and bias, and should be altered. Further, our account of disability should change over time, and reflect what individuals are able to do, and what we think they ought to be able to do. The problem of disability is the problem of losing significant opportunities—and not the ‘problem’ of Disability: a justice-based account 959 123 deviation from the species norm, or the loss of our irrelevant opportunities—and our understanding of disability should be reoriented to reflect this. Acknowledgements For helpful comments and discussion of earlier drafts, I would like to thank Alice Baderin, Ian Carroll, Cécile Fabre, Carl Fox, Katherine Jenkins, and audiences at the Royal Institute of Philosophy Seminar at the University of Nottingham, the Nuffield Political Theory Workshop, the Pri- ority in Practice Conference at the University of Oxford, the Association of Social and Political Philosophy Conference at the University of Sheffield, and the Political Philosophy Seminar at the University of Newcastle, as well as an anonymous referee. Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http:// creativecommons.org/licenses/by/4.0/. References Aas, S. (2016). Disabled—therefore, unhealthy? Ethical Theory and Moral Practice, 9, 1259–1274. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). (2013). Arlington, VA.: American Psychiatric Association. Anderson, E. (1999). What is the point of equality? Ethics, 109, 287–337. Asch, A., & Wasserman, D. (2005). Where is the sin in synecdoche? In D. Wasserman, J. Bickenbach, & R. Wachbroit (Eds.), Quality of life and human difference: Genetic testing, health care (pp. 172–216). New York: Cambridge University Press. Barclay, L. (2010). Disability, respect and justice. Journal of Applied Philosophy, 27, 154–171. Barnes, E. (2009). Disability and adaptive preference. Philosophical Perspectives, 23, 1–22. Barnes, E. (2014). Valuing disability, causing disability. Ethics, 125, 88–113. Barnes, E. (2016a). The minority body: A theory of disability. Oxford: Oxford University Press. Barnes, E. (2016b). Reply to Kahane and Savulescu. Research Philosophica, 93, 295–309. Barnes, E. (2018). Against impairment: Replies to Aas, Howard, and Francis. Philosophical Studies, 175, 1151–1162. Bayne, T., & Levy, N. (2005). Amputees by choice: Body integrity identity disorder and the ethics of amputation. Journal of Applied Philosophy, 22, 75–86. Begon, J. (2016). Athletic policy, passive well-being: defending freedom in the capability approach. Economics and Philosophy, 32, 51–73. Begon, J. (2017). Capabilities for all? From capabilities to function, to capabilities to control. Social Theory and Practice, 43, 154–179. Begon, J. (2018a). Disability, rationality, and justice: Disambiguating adaptive preferences. In D. Wasserman & A. Cureton (Eds.), The Oxford handbook of philosophy and disability. Oxford: Oxford University Press. Begon, J. (2018b). Book review: Elizabeth Barnes, the minority body: A Theory of disability. Journal of Moral Philosophy, 15, 100–103. Begon, J. (unpublished). Neutral impairment, disadvantageous disability. Bettcher, T. M. (2014a). Feminist perspectives on trans issues. In E. Zalta (Ed.), The stanford encyclopaedia of philosophy. Retrieved May 16, 2020 from https://plato.stanford.edu/archives/ spr2014/entries/feminism-trans/. Bettcher, T. M. (2014b). Trapped in the wrong theory: Rethinking trans oppression and resistance. Signs, 39, 383–406. 960 J. Begon 123 http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ https://plato.stanford.edu/archives/spr2014/entries/feminism-trans/ https://plato.stanford.edu/archives/spr2014/entries/feminism-trans/ Buchanan, A., Brock, D. W., Daniels, N., & Wikler, D. (2000). From chance to choice: Genetics and justice. Cambridge: Cambridge University Press. Campbell, S. M., & Stramondo, J. A. (2016). Review: The minority body by Elizabeth Barnes. Notre Dame Philosophical Reviews. Retrieved May 16, 2020 from https://ndpr.nd.edu/news/the-minority- body-a-theory-of-disability/. Campbell, S. M., & Stramondo, J. A. (2017). The complicated relationship of disability and well-being. Kennedy Institute of Ethics Journal, 27, 151–184. Carter, I. (2014). Is the capability approach paternalist? Economics and Philosophy, 30, 75–98. Cohen, G. A. (2011). On the currency of egalitarian justice. In M. Otsuka (Ed.), On the currency of egalitarian justice and other essays in political philosophy (pp. 3–43). Princeton: Princeton University Press. Crisp, R. (2006). Reasons and the good. Oxford: Oxford University Press. Daniels, N. (1985). Just health care. Cambridge: Cambridge University Press. Daniels, N., Rose, S., & Daniels Zide, E. (2009). Disability, adaptation, and inclusion. In K. Brownlee & A. Cureton (Eds.), Disability and disadvantage (pp. 54–85). Oxford: Oxford University Press. Dembroff, R. (forthcoming). Real talk on the metaphysics of gender. Philosophical Topics. Dougherty, T. (2014). Ethics discussion at PEA Soup: Elizabeth Barnes’ ‘‘Valuing Disability, Causing Disability’’. PEA Soup. Available at: https://peasoup.typepad.com/peasoup/2014/11/ethics- discussion-at-pea-soup-elizabeth-barnes-valuing-disability-causing-disability-with-critical-p.html. Dworkin, R. (2000). Sovereign virtue. Cambridge, MA: Harvard University Press. Elster, J. (1987). Sour grapes: Studies in the subversion of rationality. Cambridge: Cambridge University Press. Francis, L. (2018). Understanding disability civil rights non-categorically: The minority body and the Americans with disabilities act. Philosophical Studies, 175, 1135–1149. Gay, R. (2017). Hunger: A memoir of (my) body. London: Corsair. Gheaus, A. (2013). The feasibility constraint on the concept of justice. The Philosophical Quarterly, 63, 445–464. Griffin, J. (1986). Well-being: Its meaning, measurement, and moral importance. Oxford: Oxford University Press. Haslanger, S. (2000). Gender and race: (What) Are they? (what) do we want them to be? Nous, 34, 31–55. Hawkins, J. (2018). Book review: Elizabeth Barnes, the minority body: A theory of disability. Ethics, 128, 462–467. Howard, D., & Aas, S. (2018). On valuing impairment. Philosophical Studies, 175, 1113–1133. Jenkins, K. (2016). Amelioration and inclusion: Gender identity and the concept of woman. Ethics, 126, 394–421. Kahane, G., & Savulescu, J. (2009). The welfarist account of disability. In K. Brownlee & A. Cureton (Eds.), Disability and disadvantage (pp. 14–53). Oxford: Oxford University Press. Kahane, G., & Savulescu, J. (2016). Disability and mere difference. Ethics, 126, 774–788. Kahneman, D., Slovic, P., & Tversky, A. (Eds.). (1982). Judgement under uncertainty: Heuristics and biases. Cambridge: Cambridge University Press. Khader, S. (2011). Adaptive preferences and women’s empowerment. Oxford: Oxford University Press. Kittay, E. F. (2011). Forever small: The strange case of ashley X. Hypatia, 26, 610–631. McBryde Johnson, H. (2003). Unspeakable conversations. The New York times magazine. http://www. nytimes.com/2003/02/16/magazine/unspeakable-conversations.html. Retrieved from 24 June 2019. Müller, S. (2009). Body integrity identity disorder (BIID)—Is the amputation of healthy limbs ethically justified? The American Journal of Bioethics, 9, 36–43. Nussbaum, M. C. (2000). Women and human development. Cambridge: Cambridge University Press. Nussbaum, M. C. (2006). Frontiers of justice. Cambridge, MA: Harvard University Press. Oliver, M. (1996). Understanding disability: From theory to practice. Basingstoke: Palgrave. Parfit, D. (1984). Reasons and persons. Oxford: Oxford University Press. Rawls, J. (1999). A theory of justice. Cambridge, MA: Harvard University Press. Savulescu, J., & Kahane, G. (2009). The moral obligation to create children with the best chance of the best life. Bioethics, 23, 274–290. Scanlon, T. M. (1975). Preference and urgency. The Journal of Philosophy, 72, 655–669. Scanlon, T. M. (1998). What we owe to each other. Harvard: Belknap Press. Sen, A. (1999). Development as freedom. Oxford: Oxford University Press. Sen, A. (2009). The idea of justice. London: Penguin. Shakespeare, T. (2006). Disability rights and wrongs: Revisited. New York: Routledge. Disability: a justice-based account 961 123 https://ndpr.nd.edu/news/the-minority-body-a-theory-of-disability/ https://ndpr.nd.edu/news/the-minority-body-a-theory-of-disability/ https://peasoup.typepad.com/peasoup/2014/11/ethics-discussion-at-pea-soup-elizabeth-barnes-valuing-disability-causing-disability-with-critical-p.html https://peasoup.typepad.com/peasoup/2014/11/ethics-discussion-at-pea-soup-elizabeth-barnes-valuing-disability-causing-disability-with-critical-p.html http://www.nytimes.com/2003/02/16/magazine/unspeakable-conversations.html http://www.nytimes.com/2003/02/16/magazine/unspeakable-conversations.html Silvers, A. (2009). No talent? Beyond the worst off! a diverse theory of justice for disability. In K. Brownlee & A. Cureton (Eds.), Disability and disadvantage (pp. 163–199). Oxford: Oxford University Press. Smith, S. R. (2001). The social construction of talent: A defence of justice as reciprocity. Journal of Political Philosophy, 9, 19–37. Sumner, W. (1996). Welfare, happiness, and ethics. Oxford: Oxford University Press. Terzi, L. (2004). ‘The social model of disability: A philosophical critique. Journal of Applied Philosophy, 2, 141–157. Terzi, L. (2008). Justice and equality in education: A capability perspective on disability and special educational needs. London: Continuum. Terzi, L. (2009). Vagaries of the natural lottery? Human diversity, disability, and justice: A capability perspective. In K. Brownlee & A. Cureton (Eds.), Disability and disadvantage (pp. 86–111). Oxford: Oxford University Press. Wahlert, L., & Gill, S. (2017). Pathological, disabled, transgender: The ethics, history, laws, and contradictions in models that best serve transgender rights. Kennedy Institute of Ethics Journal, 27, 249–266. Wasserman, D. (2018). Book review: The minority body: A theory of disability, Elizabeth Barnes. The Philosophical Review, 127, 251–256. WHO. (2017). Health topics: Disability. Geneva: World Health Organisation. Retrieved from 24 June 2019. Wolff, J. (2009a). Disability among equals. In K. Brownlee & A. Cureton (Eds.), Disability and disadvantage (pp. 112–137). Oxford: Oxford University Press. Wolff, J. (2009b). Disability, status enhancement, personal enhancement, and resource allocation. Economics and Philosophy, 25, 49–68. Wolff, J., & de-Shalit, A. (2007). Disadvantage. Oxford: Oxford University Press. Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. 962 J. Begon 123 Disability: a justice-based account Abstract The problem of defining disability What disability is not Disability and impairment Species norm accounts Welfarist accounts Barnes’s social constructionist approach Which inabilities matter? Feasibility, levelling-down, and thinning-out Identifying distributive entitlements Beyond minimal functionings What counts, who’s disabled? Conclusion Acknowledgements References 
work_5mfznh7q4rhzdaebmvvq3pqawi	----	PLEASE SCROLL DOWN FOR ARTICLE This article was downloaded by: [Gorski, Paul] On: 10 July 2009 Access details: Access Details: [subscription number 913075635] Publisher Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Intercultural Education Publication details, including instructions for authors and subscription information: http://www.informaworld.com/smpp/title~content=t713393965 Intercultural education as social justice Paul C. Gorski a a George Mason University, USA Online Publication Date: 01 April 2009 To cite this Article Gorski, Paul C.(2009)'Intercultural education as social justice',Intercultural Education,20:2,87 — 90 To link to this Article: DOI: 10.1080/14675980902922135 URL: http://dx.doi.org/10.1080/14675980902922135 Full terms and conditions of use: http://www.informaworld.com/terms-and-conditions-of-access.pdf This article may be used for research, teaching and private study purposes. Any substantial or systematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material. http://www.informaworld.com/smpp/title~content=t713393965 http://dx.doi.org/10.1080/14675980902922135 http://www.informaworld.com/terms-and-conditions-of-access.pdf Intercultural Education Vol. 20, No. 2, April 2009, 87–90 ISSN 1467-5986 print/ISSN 1469-8439 online © 2009 Taylor & Francis DOI: 10.1080/14675980902922135 http://www.informaworld.com EDITORIAL Intercultural education as social justice Taylor and FrancisCEJI_A_392385.sgm10.1080/14675980902922135Intercultural Education1467-5986 (print)/1469-8439 (online)Original Article2009Taylor & Francis202000000April 2009Assistant Professor Paul C.Gorskigorski@EdChange.org John sat nervously, tapping a pencil on his desk. As Blue River High School’s dean of students, he had asked me to help ‘mediate’ the growing tension between the school’s administrators and an increasingly organized group of lesbian, gay, bisexual, and transgender (LGBT) students. Located in the southeastern part of the United States – traditionally a bastion of conservatism and homophobic ‘family values’ – Blue River, an elite private boarding school, prided itself on being ahead of the cultural curve, a model of progressivism both socially and educationally. I sat on a small sofa across from John, shuffling through photographs of heterosexist graffiti scrawled with permanent black marker across the dorm room doors of two Blue River students. ‘She should be here any moment,’ John said. ‘And I hope when she arrives we can put all of this behind us.’ Susan, one of the targets of the graffiti and an organizer among the school’s LGBT students, had lobbied John and other upper-level school administrators for permission to initiate a formal student organization, tentatively called PRIDE, to fight homopho- bia and heterosexism at Blue River. When I asked her a few days before the meeting about the dean’s reaction to her request, she sighed. ‘The dean cares,’ Susan replied. ‘I know he does. But caring is not the same thing as understanding. He said he’d support PRIDE, but only if we changed it into a diversity appreciation club – only if we agreed not to limit it to lesbian and gay issues.’ ‘What do you think about that idea?’ I asked. ‘I think I’m tired of being appreciated,’ she answered. ‘And how can we be appreciated, anyway, when we have to hide who we are just to be safe?’ When Susan arrived at John’s office, I invited both her and John to share their most recent thoughts on the heterosexist graffiti, the larger problem of heterosex- ism at Blue River, and the anti-heterosexist student group. Susan read from a list of carefully crafted recommendations composed by PRIDE earlier that morning. They requested support to continue developing PRIDE in their own image, not as an apolitical diversity appreciation club. They suggested, and volunteered to coor- dinate, a professional development workshop on LGBT issues for Blue River’s staff. They asked, as well, for more transparency in the school’s handling of the graffiti incident, sharing their concern that similar incidents had been ‘swept under the carpet’ by administrators and teachers. ‘Speaking from my own experience,’ Susan concluded, ‘it seems to be easier to be homophobic here than to be a lesbian. Isn’t that backwards, especially at a school that sells itself as progressive and diverse?’ John listened attentively, scribbling a few notes. He agreed that professional devel- opment was a good idea, but balked at the other two requests. ‘This is a community issue, isn’t it?’ he asked. ‘My sense is that all of this would be best resolved through D o w n l o a d e d B y : [ G o r s k i , P a u l ] A t : 1 1 : 5 9 1 0 J u l y 2 0 0 9 88 P.C. Gorski dialogue and intercultural respect. And how can we encourage intercultural respect when we endorse an exclusive student organization?’ After pausing for a moment, John continued, ‘This is a slippery slope – the student organization. What will we do when a group of our more conservative Christian students want us to support an exclusively heterosexual club?’ ‘I’ve been at this school for three years,’ Susan answered, ‘and I’ve always felt like a stranger here. So you’ll tell them what I’m telling you: this whole school is an exclu- sive heterosexual club. We’re just trying to carve out a little breathing room and you won’t even allow us to do that.’ * * * The problem at Blue River High School, like that at most every school I have visited, whether in India, Colombia, the USA, or anywhere else, is not a lack of commitment to intercultural education among its leaders. They are committed, and quite passionately, to intercultural education. In fact, I cannot recall a single instance in which I have asked a school administrator whether or not she or he was committed to equity or diversity or intercultural education or multiculturalism – and I always ask this question – without being answered with an emphatic yes! One of today’s key discourses among intercultural educators in many parts of the world focuses on something called the ‘achievement gap’ – differences in levels of educational achievement, usually measured narrowly with standardized test scores, between a society’s privileged and oppressed communities. My purpose, and the purpose of this special issue of Intercultural Education, is to point to a different gap which, as I have argued previously in this journal (Gorski 2006, 2008), is, or at least ought to be, more fundamental to the intercultural education discourse. It is not a test score gap or one related to educational attainment. Rather, it is a gap of conscious- ness, a deepening fissure distinguishing the ways in which the most privileged among us prefer to conceptualize intercultural education – ‘This is a community issue, calling for dialogue and intercultural respect’ – and the ways in which the most oppressed of us define the problem that intercultural education should aim to resolve: ‘This whole school is an exclusive heterosexual club.’ This, I believe, is the fundamental gap in our discourse and a threat to the future of authentic intercultural practice in education – the gap distinguishing an overly-simplistic interpersonal (can’t we all just get along?) approach to intercultural education from a systemic approach that insists, first and foremost, on the construction of an equitable and just world. I also believe, however unfortunate, that intercultural education as a field and movement remains, for the most part, in the control of people and organizations who share John’s enthusiasm for ‘diversity’ but lack the conviction to address, in any seri- ous and systemic way, the grave injustices experienced by many of those we invite into interpersonal-intercultural festivities. As a result, most intercultural practice and scholarship, while focusing on cross-cultural relations, respecting differences, conflict resolution, and learning about this or that identity group, stops short of demanding a world free of injustice. Notice, for example, John’s focus on resolving the conflict rather than eliminating the injustice. This, to me, is the epitome of privilege: construct- ing a supposedly progressive movement in a way that requires disenfranchised people to build relationships and resolve conflict with people by whom they are oppressed while ignoring their oppression. I often tell my students – predominantly present and D o w n l o a d e d B y : [ G o r s k i , P a u l ] A t : 1 1 : 5 9 1 0 J u l y 2 0 0 9 Intercultural Education 89 future teachers – that the most critical question we can ask in any examination of social or political action is, to whose benefit and at whose expense? And so, when we practice an intercultural education that values inter-gender peace rather than gender equity, racial harmony rather than racial justice, immigrant acculturation rather than immigrant rights, we must ask ourselves: to whose benefit and at whose expense? This themed issue of Intercultural Education represents one organized attempt to respond to this gap of consciousness by highlighting the scholarship of intercultural educators whose work foregrounds equity, social justice, and human rights rather than cultural understanding and intercultural relationships. Despite coming from a variety of sociopolitical contexts and disciplines, they share a determination to ask critical questions about what is and what could be in intercultural education. They insist that authentic intercultural practice begins with – indeed cannot exist without – the decon- struction of power, privilege, oppression, and the consciousness, or lack of conscious- ness, that these conditions engender in the oppressor and the oppressed. They demand of us contoured analyses of day-to-day educational goings-on such as John’s interac- tion with Susan, not as a way to understand simplistic variants in culture, but to prepare us to help transgress apolitical models of intercultural education that, despite good intentions, run the risk of exacerbating existing injustices. And they invite us to consider how we might funnel deeper levels of intercultural consciousness into socially transformative educational and social activism. We begin with an exploration of critical media literacy as a building block of multicultural education by Paul R. Carr and Brad J. Porfilio. They argue that the future of social justice consciousness relies upon a computer and media literacy that tran- scends ‘tolerance’ and ‘respect.’ In her contribution to this special issue, Jane Quin describes the Trajectory Model, which she uses in South Africa to engage teachers in a reflective assessment of their socializations within oppressive societies. Andria K. Wisler offers a critical take on an oft-identified goal of intercultural education: conflict resolution. She advocates for an approach to conflict resolution that foregrounds social justice concerns and, as a result, encourages democratic global consciousness. Contextualizing intercultural education and critiquing reductionist practices in intercultural development programs, François V. Tochon and A. Cendel Karaman apply a critical-interpretive systems approach to intercultural education. The result is a re-conceptualization of ‘intercultural reasoning’ that insists upon social justice and considers the sociopolitical context of education. Azadeh F. Osanloo argues that authentic civic education must be grounded in crit- ical thinking skills and dialogues that span various public spheres. Osanloo describes universal elements critical to education that is ‘civically responsible,’ focusing partic- ular attention on human rights education. Using grounded theory, Maryan Koehler shares her research on immigration and integration policy for adult newcomers in the Netherlands. Particularly, Koehler discusses the implications of her finding that policymakers highlight ‘assimilation’ as an important element of integration. Chavella T. Pittman’s study raises questions about a common misperception – that changes in attitude regarding multiculturalism necessarily lead to changes in behavior and action. She turns this approach on its head, suggesting an approach to multicul- tural education that focuses on behavior change. D o w n l o a d e d B y : [ G o r s k i , P a u l ] A t : 1 1 : 5 9 1 0 J u l y 2 0 0 9 90 P.C. Gorski Finally, Lorraine Beveridge and Julie Hinde McLeod take on the misperception that our youngest students are incapable of critical consciousness in their description of a literature-based primary school action learning project in Australia. References Gorski, P.C. 2006. Complicity with conservatism: The de-politicizing of multicultural and intercultural education. Intercultural Education 17, no. 2: 163–77. Gorski, P.C. 2008. Good intentions are not enough: A decolonizing intercultural education. Intercultural Education 19, no. 6: 515–25. Paul C. Gorski George Mason University, USA gorski@edchange.org D o w n l o a d e d B y : [ G o r s k i , P a u l ] A t : 1 1 : 5 9 1 0 J u l y 2 0 0 9 
work_5tkzdqcetjeb5fihfk7dghj2fi	----	Untitled Edinburgh Research Explorer On climate matters Citation for published version: Cripps, E 2016, 'On climate matters: Offsetting, population, and justice', Midwest Studies In Philosophy, vol. 40, no. 1, pp. 114-128. https://doi.org/10.1111/misp.12050 Digital Object Identifier (DOI): 10.1111/misp.12050 Link: Link to publication record in Edinburgh Research Explorer Document Version: Peer reviewed version Published In: Midwest Studies In Philosophy Publisher Rights Statement: This is the peer reviewed version of the following article: Cripps, E. (2016), On Climate Matters: Offsetting, Population, and Justice. Midwest Stud Philos, 40: 114–128, which has been published in final form at https://onlinelibrary.wiley.com/doi/full/10.1111/misp.12050. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving. General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1111/misp.12050 https://doi.org/10.1111/misp.12050 https://www.research.ed.ac.uk/portal/en/publications/on-climate-matters(f285d3b1-da27-4d4b-8af9-e72c43570d32).html 1 On Climate Matters: Offsetting, Population, & Justice1 Elizabeth Cripps [Forthcoming in Midwest Studies in Philosophy] In Climate Matters (2012), John Broome defends a stringent individual duty of justice to reduce one’s net carbon footprint to zero. He argues, moreover, that this can be fulfilled without radical lifestyle changes, by offsetting. These are provocative and, in their different ways, likely to be unpopular claims. However, this paper will argue that Broome’s conclusions are less controversial, in two key ways, than they might be. On offsetting and on the ethics of adding people, Broome’s own arguments lead further than he explicitly goes. One of these would put him in extremely problematic territory; both serve to highlight an underlying difficulty with his account of the moral situation of the individual emitter. For Broome, individual emissions cause harm. If you live a ‘normal’ life in a rich country, ‘your lifetime emissions will wipe out [very roughly] more than six months of healthy human life’ (2012: 74). This loss is spread across the millions of victims of climate change, so thinly that the difference any given emitter makes to each victim is imperceptible. However, it adds up across the victims. Moreover, each contribution combines with those of billions of other emitters, resulting in very great suffering by very many people. Since it is wrong to harm others, each of us has a clear-cut duty to reduce our net emissions to zero. This is a duty of justice2 and takes priority over many other duties. In particular, it takes priority over duties of goodness – duties ‘to try and improve the world’ (2012: 50) – which, in the climate change case, are duties to put pressure on our 1 Thanks to Holly Lawford-Smith and Paul Bou-Habib for detailed comments on this paper. It has also benefited from feedback at a Climate Matters workshop, University of Essex, November 2014, especially from John Broome. I am also grateful to Bou-Habib, organiser of the workshop, the editors of Midwest Studies in Philosophy, and of course Broome himself for this opportunity to comment on a work as practically important and politically timely as it is philosophically engaging. 2 Duties ‘owed by one person to another particular person, or… people’ (Broome 2012: 52). 2 governments to act (2012: 81). (Governments, unlike individuals, have primarily duties of goodness to tackle the overall problem (2012: 64-68).3) At this stage, the affluent reader might be feeling rather uncomfortable. But it turns out that fulfilling this stringent individual duty is considerably easier than we might fear. According to Broome, individuals can fulfil this duty of justice either by cutting their own emissions or by bringing about comparable emissions reductions elsewhere. This might be by carbon removal or preventative offsetting. This latter involves funding projects to reduce others’ emissions, perhaps exploiting energy efficiency technology (2012: 87-89). This option, which allows affluent individuals to ‘buy’ themselves out of changing their habits, raises objections enough.4 However, these are not the focus of this paper. Instead, I argue that in defending preventative offsetting, Broome opens the door to other ways of ‘cancelling out’ one’s own emissions: by funding green technology research, by promoting climate change-mitigating action in other ways, or – possibly – by funding adaptation (Section I). Moreover, on his account of un-offset individual emissions as individual injustices, the decision to have a child is also an injustice (Section II). Finally, (Section III) I will question Broome’s characterisation of the relationship between individual emitters and the collective harm done through climate change. Given that any perceptible harm to victims results from the combination of many individual emissions, it is not clear that individuals have an exclusive or primary duty of justice to stop or negate their individual emissions, rather than try to bring about a collective-level change, nor – if they do – why such duties should automatically take priority over duties of goodness. In concluding, I will briefly indicate how loosening these assumptions can reinforce the expanded account of offsetting, and take some of the sting out of concerns about the implications for individual procreative decision-making. 3 Although they also have obligations of justice, Broome sees these as limited, in the climate change case, by the non-identity problem. His claim is that governments do not harm future individuals through high emissions policies, because without those policies those particular individuals would not come into existence (2012: 61-63). However, this paper will focus on his treatment of individuals and so barely touch on his also significant contribution to the debate on governmental climate duties. 4 E.g. Hyams and Fawcett 2013; Jamieson 2014; Sagoff 2014; Spiekermann 2013. 3 I. OFFSETTING As we have seen, Broome thinks each of us has an individual duty of justice to achieve zero net carbon footprint, which we can fulfil by offsetting. This can take two forms: removing equivalent carbon from the atmosphere, for example by planting trees, or preventing equivalent emissions elsewhere, for example by funding renewable energy projects in the developing world (2012: 85-89). To reiterate, I will not debate whether it is morally acceptable to offset at all, and particularly whether it is so to use preventative offsetting, rather than make lifestyle changes. Rather, this section makes a conditional point: if preventative offsetting is a legitimate way to fulfil this stringent duty of individual justice, so too – potentially – are three other courses of action. The first is offsetting by funding research into ‘green’ technology. The second is offsetting by promoting action on mitigation. This could involve: a) direct, personal influence on the emissions of individuals or small groups close to you or b) influencing government or international policy. The third is offsetting by funding adaptation. Briefly, the reasoning on the first two is as follows. If it is acceptable to offset individual emissions by funding the use of ‘green’ technology to reduce emissions elsewhere, why not also by making more such technology available, bringing about further cuts? Equally, if it is justifiable to continue your own carbon-laden lifestyle so long you fund other people to emit less, why not if you can persuade others to emit less, or bring about policy changes to require everyone to do so? On offsetting by adaptation, the argument rests on the fact that there is more than one way of protecting persons from climate change: curbing the emissions that cause the physical changes to the atmosphere (mitigation) or adapting humans and their environment so that such warming would not undermine central interests.5 At the collective level, both of these are necessary (e.g. Caney 2009: 86-89). However, for current purposes the focus is on the individual emitter: it is the ultimate harm to victims doing the moral work for Broome, so if that harm is prevented, why isn’t this an acceptable way of offsetting? 5 A third possibility, geoengineering, is not discussed here. 4 Suppose, by way of analogy, I want to throw loud Friday night parties but the noise would distress my neighbour. To avoid injustice, I could refrain altogether. If like Broome we accept the legitimacy of preventative offsetting, I could throw my parties but pay the students living on my neighbour’s other side from holding the even louder ones that they would otherwise have had every Saturday night.6 Finally, I could soundproof my walls.7 If anything, the third option looks less morally dubious than the second. The analogy to the third, in the emissions case, is adaptation. There are major objections to this three-fold expansion of offsetting.8 These are uncertain methods. How can the individual be sure (or sure enough) that sufficient harm will be prevented? Even if it is, will it be prevented to exactly the same people as our individual emissions would have harmed? An individual cannot generally justify harming person A by benefiting person B. Indeed, at first sight, the suggestions might look not only problematic, but morally outrageous. The parallel would be with geoengineering, where Stephen Gardiner (2013: 22- 24) compares us, as a generation, with ‘Wayne’. Wayne continually cheats on his wife, exposing her to risk of STDs. He attempts to justify this by investing a few dollars in a company attempting to cure HIV: a very risky enterprise that may not succeed in producing a cure at all, let alone in one which can save his wife. And if this looks problematically speculative, how much more so does appeal to an individual’s chance of influencing either policy or other individuals to cut emissions sufficiently to cancel out her own carbon footprint? In response, I would reiterate that my claim is strictly conditional: not that these are acceptable ways to fulfil strict individual duties of justice, but that if preventative offsetting is a legitimate response to emissions harms, there is no principled reason not to go further. With this in mind, let us begin with the general worry about uncertainty. As Broome acknowledges, preventative 6 I am, of course, making certain assumptions: that my neighbour makes no difference between Friday and Saturday nights and that the students put a lower value on being deprived of entertainment, perhaps because they are poorer. (Precisely this latter point brings out part of the moral unease associated with offsetting. See e.g. Caney (2010: 203-12) on emissions trading.) 7 I could also try to compensate my neighbour. Broome seems prepared to countenance compensation as a means of fulfilling duties of justice (2012: 56-57, 78-81). However this, in moral terms, looks second best, just as it does at the collective level, though it will undoubtedly be necessary as part of a fair collective response (Caney 2009: 86-89). 8 A preliminary difficulty is that of calculating likely reductions, but this is not unique to my suggestions (Broome 2012: 85, 89). 5 offsetting may also be ineffective. He advocates overestimating what is required, to be on the safe side (2012: 87-9). Indeed, even carbon removal offsetting is not certain to bring about exactly the necessary reduction in emissions. Rather than a clear contrast between options – a straightforward cancelling out of one’s emissions, on the one hand, and uncertainty about whether one had done so, on the other – we are faced with a continuum along which there are different levels of uncertainty attached to different offsetting options. The only certainty is not emitting in the first place. Thus, rather than ruling out some means of offsetting altogether, an appropriate response might be to overestimate more and more what is needed, as one moves further along the spectrum.9 There are, moreover, a number of ways in which offsetting by green technology research and by promotion can be made more or less uncertain, while offsetting by adaptation, like preventative offsetting, could be a matter of funding the use of established technology. With green technology research, the individual could spread her investment, provided it is significant enough, over different projects. On offsetting by promotion, the objection would be that most individuals are highly unlikely to make any real difference to policy, try as they might by subscribing to Greenpeace or Friends of the Earth, signing e-petitions, marching on international summits, and so on. However, some individuals do have very great influence, with a potential impact much more than equivalent to a lifetime’s individual emissions. (Whether they could achieve this in practice without cutting their own emissions is, of course, another question: there remains the danger that they will be perceived to be hypocritical, undermining their efforts (Cripps 2013: 152-3).) True, many of those have this influence because they hold positions of power in current state or interstate institutions, and as such should be considered separately from private individuals. But not all those with potentially enormous influence are currently involved in government. Some have become role models for other reasons and could change behaviour on such a mass scale as indirectly to change policy. Others lead non-governmental 9 This could be very costly, giving no incentive for individuals to do it. However, it is worth establishing in theory whether other means of offsetting could satisfy individual duties of justice, because carbon removal or preventative offsetting could become more expensive and individual emission cuts harder. 6 organisations such as corporations or religious organisations. It is not so straightforward to draw a neat line between ‘powerless’ individuals, on the one hand, and all-powerful governments, on the other. Recall, too, that there are two levels of offsetting by promotion. Anyone with influence on relatively small groups of others – teachers, local community leaders, journalists – might be able to ‘cancel out’ their own emissions by provoking emissions cuts by those others, or at local policy level. (Again, of course, subject to the perceived hypocrisy objection.) Let us turn, then, to the second worry: even if the same amount of harm is prevented, it may not be harm to the same people. Depriving one person of six months of life cannot be justified by prolonging another’s life by six months. (On the common sense morality upheld by Broome, it cannot be justified by giving six months to ten others.) But why should this apply more to offsetting by technology research or promotion than to preventative offsetting? The idea behind preventative offsetting is that one can spare the victims and so fulfil one’s duty of justice by cancelling out one’s own emissions through reductions elsewhere. These two are simply alternative ways of doing that. If the concern is with those who could be harmed as a result of the time lag between individual emissions and any offsetting reduction, this is a serious worry, but one which is not unique to my proposals. The same applies to many kinds of preventative offsetting (some projects will have a very long gestation period) and may not – if one’s influence on others is rapid enough – apply to some kinds of offsetting by promotion. If I could get away with it, I could give a rousing talk one afternoon which prompted twenty regular commuters to ditch their cars for bikes, then fly off to the South of France on holiday, safe in the knowledge that my day had reduced emissions by more than it had increased it. (Again, remember that I am not defending this, all-things-considered, but simply pointing out that it is another way of ensuring that, for any emissions I cause, I also cause an equivalent or greater reduction elsewhere.) On offsetting by adaptation, however, there are some more specific difficulties. The idea behind the other options is that so long so you don’t cause extra overall emissions in the atmosphere, no-one will be harmed by your actions. Here, the suggestion is, instead, that the individual could somehow 7 intervene to shield victims from the physical changes associated with any increased emissions. But she can hardly be sure that those people whom her adaptation aid protects will be the same ones whom her emissions will have harmed. I have some responses to this worry, but they may remain inadequate until supplemented by Section III. Firstly, preventative offsetting is not entirely immune to such difficulties. Even allowing for overestimating in response to uncertainty about whether emissions will be reduced enough elsewhere, some harm to some victims could still slip through the net. This is because of a combination of potential time lags and the impossibility of being certain one has overestimated sufficiently. In other words, accepting even preventative offsetting means not assigning absolute priority to ensuring that no victims are left harmed a result of your actions.10 Indeed, taking concerns about time lags to their natural conclusions, adaptation might be the closest some polluters can get to negating their own emissions. Consider those who are now elderly and have been emitting all their life. What would Broome’s justice require of them? This is not clear, but it is reasonable to assume that he would think they should offset all past emissions. However, some victims already live with the effects of climate change. The early, un-offset emissions of those still living could have contributed to this, and it is a suffering which cannot now be prevented by mitigation but might be eased by adaptation aid. (Taking this further, compensation aid could be required, where central interests have already been undermined.) Finally, what each individual causes are imperceptible harms to each of the many victims of climate change, rather than perceptible losses caused by each emitter to any given individuals. This, I suggest, could justify responding by spreading adaptation aid also across as many as possible. But this relies to arguments that will not be filled out until Section III. This completes, for now, my discussion of offsetting. It might seem that my conditional claim – if preventative offsetting is an acceptable way to fulfil individual duties of justice, so too are these other speculative ways of stepping 10 Broome does not rule out a ‘surrogate compensation’ approach, compensating large numbers of people as a proxy for those actually harmed (2012: 80-81). This would be vulnerable to the same objection. 8 between one’s emissions and harm – is ultimately a case against preventative offsetting: almost a reductio ad absurdum. But my aim is at once less destructive and more critical than that. Section III will identify some limitations of Broome’s account of the connection between individual duty-bearers and the harm done by climate change. These accepted, I will suggest that at least some of my suggestions could be as appropriate a response to carbon emissions as – and arguably more appropriate than – cutting one’s own carbon footprint, even by conventional means. For now, however, I turn to a second way in which what Broome explicitly says about individual climate duties stops short of where his own arguments should take him. II. THE INJUSTICE OF ADDING PEOPLE Broome is adamant that parents should not expect others to pick up the tab for their decision to have children (2012: 71-72). My contention, taking him into still more controversial territory,11 is that he is committed to condemning voluntary, foreseeable procreation as an injustice. In having a child, parents create not only a new person, with her own emissions, but the prospect of a whole line of descendants, all emitting. A number of objections are likely. One is that parents do not harm so long as they have fewer than replacement rate children. However, Broome requires zero carbon footprint, not merely keeping below some ‘fair share’ emissions threshold (2012: 79). Moreover, even if parents have only one or two children, the stage of life at which they have them affects total emissions: the more the overlap between generations, the greater the impact. Thus, on Broome’s own account, there are reasons to reject this objection. Even accepting it, however, the argument would hold for more than replacement rate children. (This is a less counterintuitive conclusion, although one still likely to raise hackles.) A second objection is that the cost of not having children is too great to require anyone to refrain. A parent’s relationship with her child can make a central contribution to a full human life: one not substitutable by other goods 11 Controversial, but not altogether uncharted, e.g. Young (2001). 9 (e.g. Brighouse and Swift 2006; Conly 2005). Thus, to ask someone to give up the opportunity could be to demand a huge sacrifice.12 However, on the strict common sense morality on which Broome draws, we must not (as individuals) do serious harm even if the cost to us of avoiding it is high. He specifies that ‘[j]ustice does not prohibit you from doing harms you cannot help’ (2012: 59) but most of us, at least in the affluent world, can ‘help’ having children, albeit at an emotional cost. I would not generally be justified in cutting off your arm even if that were the only way to save my own.13 If our intuitions pull against such a hard line in cases like climate change, where the harm results from the combination of many actions none of which do perceptible harm on their own, then perhaps we have reason to doubt whether such contributions really do count as harms, or injustices, in the same way as ‘standard’ individual violations of that widely-shared prohibition on doing serious harm to other persons, the no-harm principle. This will be taken up in Section III. In any case, it is more plausible that we have a central interest in being able to have and experience a relationship with a child, than that we need to be able to have unlimited children in order to flourish. (Conly 2005: 107; Cripps 2016a: 6- 8). Thus, on a modified view, it would still be an injustice to have more than one or two children. A third objection to the claim that Broome must consider procreation an injustice is that overall emissions will not increase if the child’s net emissions – and those of any future descendants – are zero. Thus, a parent can avoid injustice by guaranteeing this. But this is problematic. Children will grow up and make their own decisions. Parents can educate and encourage them, but they can’t guarantee that they will not emit or procreate and they can’t offset for unlimited 12 Whether this requires biological parenting is another question, but it cannot be taken for granted that it does not. 13 A related objection – that interference with procreation would violate a human right, grounded in this interest in procreating – is misplaced. The discussion here is entirely at the individual level. This paper neither makes, nor accuses Broome of making, a case for policy to enforce restraint from procreation. Indeed, the argument is perfectly compatible with a collective or state duty to bring about a better situation in which individuals can procreate without committing injustice. 10 emissions. Even if they could do so for this child, they could not do so for their potential descendants.14 A version of this objection appeals to the urgency of the collective challenge. Given that limiting risks across central areas of concern will require zero overall emissions by the end of the century (IPCC 2014: 18), effective collective action would have to ensure that future generations have no carbon emissions. If parents can take this for granted, they needn’t consider their future children as future emitters. But, of course, this is precisely what they cannot do. Potential parents, like all of us, face the sad probability that the necessary collective action won’t be achieved. In that case, it is reasonable to assume that the already great harm would be worsened by greater ongoing emissions. (The alternative is an implausibly all-or-nothing view on which, once this opportunity to mitigate sufficiently has been missed, the situation will be so dire anyway that it no longer matters what our combined emissions are: the kind of reasoning that says one might as well light a cigarette once the house is on fire.) Then, on Broome’s account, individual carbon footprints would still count as harms. Perhaps the point is not that the parent can’t guarantee that her child will not emit, or have children in her turn, but that it will be that child’s choice to do so, and so her (not her parents’) responsibility. After all, we do not generally hold criminals’ parents responsible for their crimes simply because they produced them. However, children may not actually have that option, given continued failure to act collectively on climate change. Zero net emissions is a realistic option for Broome’s current affluent readers only because of the availability and affordability of offsets. Whether or not these future adults could avoid emitting – and I am not suggesting that they will not be responsible for any of their emissions choices – they can, on current patterns, be predicted to have a significant carbon footprint. The analogy with the criminal fails: most children will not grow up to be thieves or murderers, but parents in this unique situation create the probability of 14 A rival suggestion would be ‘offsetting’ by funding others not to have children. This might seem a natural extension of the tradable procreation rights sometimes mooted (De La Croix and Gosseries 2009). However, it seems doubly problematic. On a one-for-one basis it would be ineffective: any such cuts in population growth are likely to be in the developing world, where per capita emissions are dramatically lower. Moreover, whatever moral concerns arise regarding emissions offsetting in general multiply a hundredfold in this peculiarly morally charged context. 11 emissions by creating the agent who will probably go on to cause them (including by having children in their turn). They knowingly run a high risk of increasing overall emissions. And for Broome, significant risks of harms count as injustices (2012: 79). However, one important caveat must be acknowledged, regarding parents’ responsibility for emitting descendants. In general, as strings of consequences grow, it becomes less plausible to assign moral responsibility for all those consequences to those whose actions started the chain. This is partly because of other agents’ actions and natural events in between, partly because we standardly only hold persons responsible for consequences reasonably foreseeable when they acted. While it is reasonable for a parent to expect that her children will a) emit and b) have children who will emit, it may not be so reasonable to assume this of her more distant descendants. On a), our ability to predict technological progress, and/or collective-level policy, is too limited to extrapolate current trends beyond a generation or two. On b), the chain of procreation relies on certain decisions (and abilities) at every generation. There is also the chance, at each stage, of some destructive external event. Generally speaking, it seems reasonable to draw the line for any responsibility for future emissions (at the least) at the point at which it becomes less likely that someone will have further emitting descendants than that they will not. Of course, it will be almost impossible to pinpoint when this is. It will also vary significantly according to how many children someone has. The argument of this section would hold, however, for at least a few generations. Another objection to my expansion of Broome’s view appeals to parents’ influence over their children. The suggestion is that those potential parents who are likely to take seriously a moral injunction not to procreate are also those who would be likely to bring up their children to be environmentally aware. The claim then, would be that these are precisely the kind of people who ought to be peopling the next generation. This can be rejected. Recall that Broome is concerned narrowly with the individual injustice of having a positive net carbon footprint. The argument would have to be that ‘right-minded’ parents could produce children so personally conscientious and so effective at motivating others that it would be 12 better to have them than not, in overall emissions terms. But parental influence, while important, cannot do everything. Moreover, many who currently consider themselves ‘green’ have failed to achieve a zero carbon footprint. It would hardly, then, be realistic, to expect one’s potential child to go so far beyond this as to have, in effect, a negative footprint. And while we undoubtedly need exceptional leaders to turn the tide of collective lethargy on climate change, no parent could reasonably gamble on her own child being one. A final objection appeals to Broome’s rejection of the intuition of neutrality: the view that we can be morally neutral about the number of flourishing people brought into the world whilst considering it morally important that whoever does exist can flourish (2012: 170-88).15 This could imply a duty of goodness to procreate, so long as the presence of an extra person did not reduce overall happiness more than her own would add to it. At the individual level, this can quickly be rejected. On Broome’s common sense morality, duties of justice have priority for the private individual. However, important related questions are raised. If there were a duty to refrain from having any children, and if all complied with this duty (which is, of course, improbable), the consequences would be devastating: even more so, at least from an anthropocentric viewpoint, than those of everyone failing to comply with other climate duties. Again, on the Broomian model, this doesn’t change the individual duty. However, is hard not to see this itself as reason to revisit either the absolute priority of justice over goodness at the individual level, or the focus on climate change as a matter of direct individual responsibility for harm. III. CLIMATE CHANGE AND INDIVIDUAL HARM So far, two unacknowledged implications of Broome’s argument have been outlined. These might be left constructive amendments to his project, at least if the procreative duty of justice could be consistently interpreted as one to stop at 15 I will not engage with Broome’s argument for this rejection. Nor is it within the scope of this paper to address what else he says about population in the context of governmental duties: his favourable mention of tying state emissions quotas to fixed population levels (2012: 71. See Cripps 2016b on the latter.) 13 one or two children, rather than not have any at all. But I will not leave it at that, because there remains an underlying concern about Broome’s characterisation of individual’s moral relationship to the harm caused through climate change. This is a challenge which, in their different ways, both the previous sections press on us. For clarity, let us separate his view into four points: 1. That, as affluent individuals, we are each causally responsible for harms through our own emissions, amounting to six months’ loss of human life. 2. That this is the kind of harm that violates the individual no-harm principle and counts as an injustice. 3. That, accordingly, each of us has a duty of justice to stop or negate those individual emissions 4. That this duty takes priority over any duties of goodness we have, such as our duty to promote government action on climate change (2012: 54-57, 64- 68, 74-81). I will begin with some independent concerns about point (4), then address the first three, before returning briefly to (4). Broome’s view is that governments can legitimately prioritise goodness over justice (so long as they compensate where possible), but individuals can rarely do so. In the climate change context, this is at least partly because governments, unlike individuals, can make a very great difference to what happens at the collective level (2012: 64-69). I have already suggested that, as regards some individuals, this depiction of powerlessness may be a mistake. I now want to make a more general point: in focusing only on what governments can do and on what individuals can do as individuals (cutting their own emissions as a matter of justice or lobbying their government as a matter of goodness), there is a danger of neglecting a third possibility. This is what can, and in the climate change case can only, be achieved through collective action at a level at which there is as yet no effective collective agency. This is important in at least two ways. Firstly, even individual governments may be powerless without cooperation with others (Gardiner 2011: 95-96). This 14 might involve a global agreement (for example, the cap and trade scheme suggested by Broome (2012: 68-72)) and/or establishing a global institution. Secondly, potential groupings of individuals, beyond our current groupings into states, could make a very great difference indeed. This might be by collectively demanding global institutional change or through global citizens’ activism networks, changing emissions patterns (Jamieson 2011: 36). Thus, the possibility arises of a shared duty requiring everyone (or all affluent persons) to cooperate to achieve global climate action. Given the extraordinary moral salience of that end, a case might be made for prioritising individual duties to bring about such cooperation over any individual duty to neutralise individual emissions in isolation, so long as the ultimate collective scheme also compensated any victims of injustice where necessary and possible.16 Now let us turn to points (1) and (2). My objection is not to Broome’s calculations, based on World Health Organisation estimates of the toll of climate change. It is to his doing them at all: to the reduction of an aggregate harm to the individual level. We can get at this concern in two ways: resisting point (1) by questioning his ‘divvying up’ of total impact to conclude that each contributor has effectively caused climate change amounting to a six months’ loss of human life; or rejecting (2) by resisting the summing of imperceptible harms across different victims to make that six months’ loss a violation of the individual no- harm principle. On the challenge to (1), which has been made elsewhere,17 I will simply flag up the distinction between a number of individuals performing actions harmful in themselves which add up to greater harm, and a number of individuals performing actions which make no difference at all in isolation but, in combination, bring about serious harm. To assess this latter as individually- caused harm, the argument must appeal to the chance that any given individual contribution will trigger some threshold at which harm is increased (Hiller 2011; 16 As clarified elsewhere (Cripps 2013: 115-39), I am not suggesting that individuals shouldn’t cut their own emissions. The point here is that reducing them to zero is not necessarily the only or the best way to fulfil duties relating to such collective harm. In practice, of course, the two ends might not conflict. Cutting individual emissions might a way to promote wider action. If it were not, affluent individuals could use offsetting to do both. However, if either offsetting or restraint were costlier, it could pull against promoting collective action. 17 Jamieson 2014. See also Cripps 2013: 119-24; Maltais 2013; Nolt 2011. 15 Kagan 2011): of being, as it were, that additional straw which breaks the camel’s back. Instead, I will begin my current critique at (2). For the sake of argument, I will accept Broome’s claim that the individual makes some difference to what happens at the collective level, concede his six-months figure as a reasonable estimate, and focus on whether this violates the moral injunction against doing serious harm to any other person. If not, this could still be an ‘injustice’. However, it would be one for a different reason than that it violates the individual no-harm principle, and so need not automatically give rise to the same duties. The issue is this: there is a significant difference between depriving one person of six months of life, and causing the loss of six months of healthy human life spread across so many people that each one loses only the most infinitesimal fraction of a second, which is how Broome characterises the situation (2012: 75- 6). Broome defends his approach as follows: [A] great many minuscule, imperceptible harms add up to a serious harm. If you doubt that, think of the recipients of harm. Each one receives harm from the emissions of billions of people. The amount each receives from each emitter is minuscule and imperceptible. Yet some recipients are already suffering serious harm in total. Some are even being killed by global warming. This shows that adding up vast numbers of miniscule amounts can amount to a serious harm. Similarly, although each emitter harms each recipient only imperceptibly, the amounts add up. (2012: 75-76.) However, this glosses together two ways of summing harms: summing what all the contributors, including me, do to each victim, and summing what I do to each of those affected. The fact that both yield a significant total harm does not show what is needed to invoke the individual no-harm principle: that I cause significant harm to any one person. So long as we think only qua private individual, there remains the objection that what I do doesn’t cause anybody to suffer anything. Thus it is necessary either to accept that an imperceptible harm can violate the no-harm principle,18 or to consider all contributions to serious 18 See Parfit’s ‘Single Torturer’ (1984: 81-2). 16 harm to be individual injustices, regardless of whether they are harmful in themselves. (This amounts, in effect, to picking up where denying (1) would have left us.) In either case, I suggest, the step to (3), above, can be questioned. Consider the possibility that contributions to serious harm count as individual injustices.19 But which contributions, and under what circumstances? It would surely be too restrictive for a code of private morality to rule out all acts which could combine to cause great harms if others also did them. A relevant question must be whether others will or can be expected to do so. But if this sort of ‘injustice’ arises only because of how others act and how the consequences of these actions combine with those of the private individual, must that individual’s exclusive, or even primary, correlative duty be to refrain from performing her own action? Instead, faced with such ‘new harms’, collective action might be needed to fulfil duties of justice (Cripps 2013: 68-77; Lichtenberg 2010). This is in no way to undermine the moral seriousness of the case: each individual must respond appropriately to the situation in which she and others are bringing about a very great harm between them. However, she might do this by promoting collective action to prevent that harm. Even if an imperceptible harm does violate the no-harm principle, grounding a prima facie duty to refrain, this is so far from the classic case of serious, foreseeable individual harm – when individual A kills individual B – as arguably to require revisiting the all-trumping status of the principle. Indeed, given how indirect the link is between the individual actions and any significant harm, it is again unclear why the duty to refrain should be the only or even the primary duty of justice, if other courses of action could contribute more effectively to preventing or redressing that significant, combined harm. It is also unclear, reinforcing the case against (4) above, why any duty to refrain should take priority over any and all duties of goodness. Again, this is in no way to deny that the situation imposes some strong, negatively-grounded moral duty: this is no easy way out for the individual. This completes the case against Broome’s points (1) to (3). Note also that the points just raised can reinforce my tentative conclusions on (4), by taking the 19 This links to an extensive literature. E.g. Cripps 2013: 119-39; Otsuka 1991; Parfit 1984: 67-86; Spiekermann 2014. 17 sting from one probable worry about that view. It is deep-rooted in common sense morality that individuals cannot justify harm to other individuals by doing (even much greater) good in another way. Were my suggestion the general one that individuals might sometimes legitimately prioritise an obligation to promote almost untold collective good over fulfilling duties not to harm, it would have dangerous implications. (What if my duty to bring about collective action on climate change were fulfillable by assassinating oil industry leaders? Would I seriously want to defend this?) However, I hope the distinction remains clear between contributions to combined harms, which are not perceptibly harmful in isolation, and actions which are individually harmful. The points made against (4) are limited to instances of the former. In the light of what has just been said, I can better indicate why some measures proposed in Section I are morally viable alternatives to conventional offsetting, and suggest that some, at least, might be more appropriate even than individual emissions cuts. Recall Gardiner’s Wayne, who exposes his wife to the risk of STDs and tries to justify himself by investing in uncertain medical research. The analogy fits us depressingly well as a generation or global elite, as we flail around for ever more speculative measures to avoid cutting luxury emissions. But the individual is not Wayne. She and others are causing great harm in combination; she is not directly causing it to any one victim. This situation makes a strong, negative moral claim on her, but one that could be as appropriately or effectively met by funding adaptation or green technology research, both of which counter some of that combined harm, as by preventative offsetting, which does the same. Moreover, some individual investments in adaptation or green technology research could prevent perceptible harm to individual victims (at least if the technology investment involves a big enough contribution, spread widely enough). The individual cannot do this simply by buying carbon removal offsets, or even refraining from individual emissions. In promoting collective action to end the overall harm, the individual could be acting still more appropriately. She would be attempting to broker a collective 18 solution to an injustice which is also, ultimately, collective: to stop us, as a generation, from being Wayne. We might also pick up where Section II left us: with implications highly counterintuitive and, if collectivised, so problematic as to give us prima facie reason to question the view of individual emissions and harm on which they rested. Now that view has indeed been challenged, there is no need to espouse a stringent individual duty to have no children: the focus can legitimately be on promoting the building of a world in which the next generation can thrive without emissions. However, the insight remains that procreative decisions are an important contributor to the overall catastrophe of climate change. The challenge, then, is twofold: to evaluate how the population factor should be incorporated into any collective response (a challenge exacerbated if we accept Broome’s rejection of the intuition of neutrality); and to determine whether any individual duty to refrain from procreating above a certain number of children can be defended either as part of such a collective endeavour or as a necessary part of promoting it. In providing a way around the most extreme implications of Broome’s view of individual justice, I am in no way undermining the paramount importance of this task. References Brighouse, Harry and Swift, Adam (2006), 'Parents' Rights and the Value of the Family', Ethics, 117, 80-108. Broome, John (2012), Climate Matters: Ethics in a warming world, ed. Kwame Anthony Appiah (Amnesty International Global Ethics Series; New York: W. W. Norton) Caney, Simon (2009), 'Climate Change, Human Rights, and Moral Thresholds', in Stephen Humphreys (ed.), Human Rights and Climate Change (Cambridge: Cambridge University Press). --- (2010), 'Markets, Morality and Climate Change: What, if Anything, is Wrong with Emissions Trading?' New Political Economy. Conly, Sarah (2005), 'The Right to Procreation: Merits and Limits', American Philosophical Quarterly, 42 (2), 105-15. Cripps, Elizabeth (2013), Climate Change and the Moral Agent: Individual Duties in an Interdependent World (Oxford: Oxford University Press) --- (2016a) 'Climate Change, Population, and Justice: Hard choices to avoid tragic choices', Global Justice: Theory, Practice, Rhetoric, 8 (2), 1-22 19 --- (2016b), 'Population and Environment: The impossible, the impermissible, and the imperative', in Stephen Gardiner and Allen Thompson (eds.), Oxford Handbook of Environmental Ethics (Oxford: Oxford University Press), DOI: 10.1093/oxfordhb/9780199941339.013.34 De La Croix, David and Gosseries, Axel (2009), 'Population Policy Through Tradable Procreation Entitlements', International Economic Review, 50 (2), 507-42. Gardiner, Stephen M. (2011), A Perfect Moral Storm: The Ethical Tragedy of Climate Change (Oxford & New York: Oxford University Press) --- (2013), 'Geoengineering and Moral Schizophrenia', in Will C. G. Burns and Andrew L. Strauss (eds.), Climate Change Geoengineering: Philosophical Perspectives, Legal Issues, and Governance Frameworks (New York: Cambridge University Press). Gheaus, Anca (2016), 'The Right to Parent and Duties Concerning Future Generations', Journal of Political Philosophy, 24 (1), DOI: 10.1111/jopp.12091 Hiller, Avram (2011), 'Climate Change and Individual Responsibility', The Monist, 94 (3), 349-68. Hyams, Keith and Fawcett, Tina (2013), 'The ethics of carbon offsetting', WIRES Climate Change, (4), 91-98. IPCC (2014), 'IPCC Fifth Assessment Synthesis Report: Summary for Policymakers', in Rajendra K. Pachauri and Leo Meyer (eds.), (Intergovernmental Panel on Climate Change). Jamieson, Dale (2011), 'Energy, ethics, and the transformation of nature', in Denis G. Arnold (ed.), The Ethics of Global Climate Change (Cambridge: Cambridge University Press), 16-37. --- (2014), 'Review of Climate Matters: Ethics in a Warming World', Ethics and International Affairs, 28 (2), 263-5. Kagan, Shelly (2011), 'Do I Make a Difference?' Philosophy and Public Affairs, 39 (2), 105-41. Lichtenberg, Judith (2010), 'Negative Duties, Positive Duties, and the "New Harms"', Ethics, 120 (3), 557-78. Maltais, Aaron (2013), 'Radically non-ideal climate politics and the obligation to at least vote green', Environmental Values, 22 (5), 589-608. Nolt, John (2011), 'How Harmful Are the Average American's Greenhouse Gas Emissions?' Ethics, Policy and Environment 14 (1), 3–10. Otsuka, Michael (1991), 'The Paradox of Group Beneficence', Philosophy and Public Affairs, 20, 132-49. Parfit, Derek (1984), Reasons and Persons (1987 Corrected reprint edn.; Oxford: Clarendon Press) Sagoff, Mark (2014), 'Review of Climate Matters: Ethics in a Warming World', Mind, 123, 194-97. Spiekermann, Kai (2013), 'Buying Low, Flying High: Carbon Offsets and Partial Compliance', Political Studies. --- (2014), 'Small impacts and imperceptible effects: causing harm with others', Midwest Studies in Philosophy, 38, 75-90. Young, Thomas (2001), 'Overconsumption and Procreation: Are they Morally Equivalent?' Journal of Applied Philosophy, 18 (2), 183-92. 20 
work_5tx2ancep5dmxdyilma2py6cu4	----	INVITED SPEAKER PRESENTATION Open Access Global health and global justice Norman Daniels From 7th Postgraduate Forum on Health Systems and Policies Phitsanulok, Thailand. 24-25 June 2013 Most people are concerned about international health inequalities and find them unjust. At the same time, we lack global institutions that can effectively act to reduce these health inequalities, which have various sources. Accordingly, the concern about health inequalities does not by itself support some one of the competing theories of global justice. Yet, many people believe that specific problems increase injustice globally and might be addressed by various measures: the brain drain of health workers from poorer to richer countries, the lack of devel- opment and dissemination of drugs that address the global burden of disease, the high rates of mortality (and morbid- ity) that reflect obvious weaknesses in health systems (e.g. maternal mortality rates), the lack of universal coverage for important health services, the lack of effective global public goods, such as better surveillance systems. I recom- mend an approach to developing an account of global jus- tice that builds on promising solutions to such specific issues, where these solutions build sustainable institutions that address the problems. Published: 29 January 2014 doi:10.1186/1471-2458-14-S1-I1 Cite this article as: Daniels: Global health and global justice. BMC Public Health 2014 14(Suppl 1):I1. Submit your next manuscript to BioMed Central and take full advantage of: • Convenient online submission • Thorough peer review • No space constraints or color figure charges • Immediate publication on acceptance • Inclusion in PubMed, CAS, Scopus and Google Scholar • Research which is freely available for redistribution Submit your manuscript at www.biomedcentral.com/submitCorrespondence: ndaniels@hsph.harvard.edu Harvard University, Cambridge, MA, USA Daniels BMC Public Health 2014, 14(Suppl 1):I1 http://www.biomedcentral.com/1471-2458/14/S1/I1 © 2014 Daniels; licensee BioMed Central Ltd. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. The Creative Commons Public Domain Dedication waiver (http:// creativecommons.org/publicdomain/zero/1.0/) applies to the data made available in this article, unless otherwise stated. mailto:ndaniels@hsph.harvard.edu http://creativecommons.org/licenses/by/2.0 http://creativecommons.org/publicdomain/zero/1.0/ http://creativecommons.org/publicdomain/zero/1.0/ 
work_5uckcbzdibarxg2h6tpsu7edpe	----	JETLaw |  | Vanderbilt University Skip to main content Health Protocols Previous Next Return to Campus: Our Plan for Spring 2021 Anchor Down. Step Up. Vanderbilt faculty sharing their expertise on a range of topics related to COVID-19 Vanderbilt Responds to COVID-19 Find information for: Undergraduate Students Graduate and Professional Students International Students Faculty Postdocs Staff Visitors and Suppliers Search frequently asked questions View messages sent to the community Have a question? Return to Campus About Vanderbilt University, located in Nashville, Tenn., is a private research university offering a full range of undergraduate, graduate and professional degrees. Quick Facts History of Vanderbilt Chancellor's Office University Leadership Team Academic Strategic Plan Residential Colleges News and Events Equity, Diversity and Inclusion Key Dates A-Z: About Vanderbilt Campus Map Our City: Nashville Work at VU GlobalVU VU Medical Center Connect with Vanderbilt Facebook Twitter Instagram YouTube Flickr Quick Facts Contact Us More Admissions Previous Next Find Your Major Take a Virtual Tour of Campus Learn more about our Residential Colleges Undergraduate Admissions Graduate / Professional Admissions Disciplines and Majors Residential Colleges Financial Aid and Scholarships Equity, Diversity and Inclusion Key Dates Schedule a Campus Visit Request Information Our City: Nashville Transfer Students International Students A-Z: Admissions Find Your Major More Academics Disciplines and Majors Online Education Programs Academic Calendar University Registrar Course Catalog & Schedule YES - Your Enrollment Services Office of the Provost Residential Colleges Libraries A-Z: Academics Colleges and Schools College of Arts and Science Blair School of Music Divinity School School of Engineering Graduate School Law School School of Medicine School of Nursing Owen Graduate School of Management Peabody College of Education and Human Development Find Your Major More Research Previous Next Vanderbilt scientists sketch rare star system using more than a century of astronomical observations New CRISPR screening technique developed at Vanderbilt leads to discovery of pathway that may be linked to cancer initiation 2020 Tennessee Men’s Health Report Card: Overall improvement, work to be done Vanderbilt-developed obesity treatments will be advanced through collaboration with Soleno Therapeutics Evidence suggests climate whiplash may have more extremes in store for California COVID-19 Information for Researchers Vanderbilt Research Research News @Vanderbilt VU Research Administration VUMC Research Administration Centers and Institutes Undergraduate Research Libraries A-Z: Research Subscribe to our e-newsletter: Research News@Vanderbilt Research News Students Previous Next Tag your photos: #vandygram Tag your photos: #vandygram Tag your photos: #vandygram Tag your photos: #vandygram Career Center Commencement Dean of Students Dining Equity, Diversity and Inclusion Global Education Office Honor System Housing International Students The Ingram Commons Libraries Residential Colleges Student Accounts Student Care Network Student Government Student Handbook Student Organizations Vanderbilt Hustler Apps and Systems YES Brightspace Anchor Link Email Login Mobile App The Hub A-Z: Students Living on Campus The Hub Faculty & Staff Previous Next Dr. Anthony Fauci to deliver 2021 Vanderbilt Graduates Day address Class of 2021 Commencement to be celebrated in person May 15–16; Graduates Day to feature Dr. Anthony Fauci What led to the U.S. Capitol insurrection: Vanderbilt political scientists examine social, psychological, legal foundations of Jan. 6 riot Vanderbilt University spotlights 2020 Service Award recipients Vanderbilt embarks on $55 million renovation and expansion project at the Owen Graduate School of Management Benefits Brightspace Child & Family Center Email Login Equity, Diversity and Inclusion Faculty Gateway (Resources) Faculty Registry Health & Wellness Honor System Human Resources Mobile App myVU (News for Faculty & Staff) Office of Postdoctoral Affairs Shared Governance SkyVU Work at VU A-Z: Faculty A-Z: Staff myVU Faculty Gateway More Alumni & Giving Previous Next Student Hardship Fund created to help students in need Opportunity Vanderbilt provides $1.2 billion in financial aid Vanderbilt launches the Frist Center for Autism and Innovation Alumni programs and resources Find Your Alumni Chapter Reunion Give to Vanderbilt Opportunity Vanderbilt Impact of your gifts Connect with the Alumni Association Vanderbilt Alumni Facebook Vanderbilt Alumni Twitter Vanderbilt Alumni Instagram Vanderbilt YouTube Vanderbilt Alumni Flickr Vanderbilt Alumni LinkedIn Give Now More Athletics Previous Next Student-athlete Abbey Carlson: Engineer and golfer Student-athlete: Kaylann Boyd Student-athlete: Jared Pinkney Student-athlete: The Champions Varsity Sports Intramural Sports Recreation and Wellness Center Commodore Club Commodores Gear Tickets A-Z: Athletics Connect with the Commodores VUCommodores Twitter VUCommodores Facebook VUCommodores Instagram VUCommodores YouTube VUCommodores Pinterest Tickets More JETLaw The Vanderbilt Journal of Entertainment and Technology Law is in the process of creating a new and improved website. We apologize for the temporary inconvenience this may cause in accessing JETLaw content. Our articles are available on both WestLaw and LexisNexis. Alternatively, you can request a past article by emailing our Editor in Chief, Ramon J. Ryan. We are currently accepting submissions for Volume 23 through Scholastica or directly by email at jetl@vanderbilt.edu. Our most recent issue, Volume 23: Issue 1, is available here. Connect with Vanderbilt Facebook Instagram Twitter YouTube LinkedIn Flickr RSS Feed Your Vanderbilt Alumni Current Students Prospective Students International Resources Faculty and Staff Media Medical Center Parents and Family Researchers Sports Fans Visitors and Neighbors Working at Vanderbilt Quick Links University Leadership Residential Colleges News Events Equity, Diversity and Inclusion Finding Your Impact Telling the Vanderbilt Story Nashville, Tennessee 37240 · 615-322-7311 · Contact Us ©  Vanderbilt University · All rights reserved. Site Development: Digital Strategies (Division of Communications) Vanderbilt University is committed to principles of equal opportunity and affirmative action. Accessibility information. Vanderbilt®, Vanderbilt University®, V Oak Leaf Design®, Star V Design® and Anchor Down® are trademarks of The Vanderbilt University 
work_5wl4sjg62rfq3alm2v2m5e62sa	----	10.11648.j.ash.20190502.11 Advances in Sciences and Humanities 2019; 5(2): 43-48 http://www.sciencepublishinggroup.com/j/ash doi: 10.11648/j.ash.20190502.11 ISSN: 2472-0941 (Print); ISSN: 2472-0984 (Online) On Cohen’s Critique of Technology and Social Justice Li Yong 1 , Zhang Yi 2 1 Marxist Philosophy Institute, Shanxi University, Taiyuan, China 2 Philosophy, School of Humanities, University of Glasgow, Glasgow, UK Email address: To cite this article: Li Yong, Zhang Yi. On Cohen’s Critique of Technology and Social Justice. Advances in Sciences and Humanities. Vol. 5, No. 2, 2019, pp. 43-48. doi: 10.11648/j.ash.20190502.11 Received: December 6, 2018; Accepted: January 10, 2019; Published: April 12, 2019 Abstract: It is supposed that to be just in society is the intrinsic pursuit of Marxist theory in Marx’s original text. While as the result of historical context, according to Marx, the just society can be realized in a far future. Cohen holds materialism standpoint to illustrate historical materialism creatively by functional explanation in the modern history context. In a new time with much more advanced science and technology, he is keeping going with the route of Marxism for overcoming the technique alienation and argues that in order to realize freedom, equality and justice, appealing to empirical critique of technology and exploration of social theory is essential. The demonstration of that freedom, equality and justice are compatible, which is a cornerstone of practical just social theory. As Cohen is in the analytical tradition, his creative functional explanation presents obvious empiricism and analytical character. He digs out the key of resolving problem of development in moral dimension apart from the materialism, and conducts the argument to attack the political designs, which separates free distribution in market, quality in society, and just spirit from each other. This essay is intended to figure out Cohen’s argument that is based on the traditional Marxism and stand, while points out a new way to help people reach the just society at the much more near future. Keywords: Justice, Functional Explanation, Critique 1. Introduction Marx acknowledged that “only if we accumulate adequate material capital”, then the just could come; while he also located the feasibility into remote ideal. Therefore, Cohen, aiming to modify this thought, try his best to explore a new path, which grantss opportunity for realizing just in social based on current conditions, and provides proofs for its possibility, actuality and feasibility. In Cohen’s mind, we can realize this aim on the current situation by means of combination of technology critique, how to deal with the relationship between technology and human nature, as well as social critique, rethinking whether social system could be running more reasonable. 2. The Functional Explanation Historical Materialism There is a claim, by Marx, in the preface of Critique of Political Economy: “The whole process of social life, political life, and mental life is restrained by the productive method of material life. It is not the case that thought determines the existence; in contrast, the existence determines thought. If the force of production had developed at the certain stage, then it would be not compatible with the previous relationships of production or property. At this moment, the given relationships would become the limitation of the productive force and the social revolution comes at this period” [15]. We can refine a proposition that: the productive force determines the productive relationships by Marx’s words. Marx’s economic interpretation for history and the dualistic viewpoint have been challenged by modern thought. 2.1. The Modern Challenge to Marxist Materialism In the modern tendency, there is a challenge to system of knowledge and history. Some proposals held by philosophers are helpful to figure out various dominant factors. As the result of finding the interval features, Anthony Giddens thinks that the reflective usage of knowledge system makes its 44 Li Yong and Zhang Yi: On Cohen’s Critique of Technology and Social Justice certainty undergo the scrutiny and being modified. Karl Popper said, “All of the science are established on the flow of sand”. E P Thompson, following empirical tradition, pays a lot of attention to crux, by designing a “social existence-experience-social idea” interactive mode, in order to eliminate the distinction between social existence and social idea. Therefore, the history could not be regarded as the natural science ruled by universal principle or model. Regarding to David Harvey, temporal objects cause the continuity of history is difficult to be reserved, and his history-geography materialism has opened the space thinking, that means the space contains double senses including ontology and methodology, even the time is inside it, that is to say the space is the “speaker” of our era. The current changes has been described by Milan Kundera, in “The Book of laughter and Forgetting” in a poem tune: “currently, time goes forward harshly, so that the so-called historical event will be forgotten overnight. The sunlight in the morning also fad away with the dew, therefore, it has not been playing the role as the background in stories of narrator, rather a piece of legend in front of common private lives. History is fading away from memories [13].” Does the historical materialism still well-establish under the rush of modern thoughts? Cohen answered yes. The first step is to clarify the concept of historical materialism. In his mind, “the historical materialism” [15] is a positivism theory that related to social structure and power of historical evolution. By means of functional interpretation, he rewrote the story of historical materialism based on “the productive force determines the relationships of production”. The functional interpreted historical materialism is an updated-version of the traditional. 2.2. The Functional Explanation Historical Materialism In functional interpretation, the feature of interpreted item is explained by the explaining item. For example, birds having hollow bone because it is helpful for flying; the shoes factory product shoes in a large scale is the result of that large scale production will produce economic benefit. The functional explanation confer the reason to why the empirical facts in nature and economic life can run continuously. How can it explain how productive force put forward the historical development? This question can be transformed into whether it is consistent with the law of causality? We try to compare it with the Humean causality to work out the question. Let letter E for reason and letter F for result. In accordance with the definition of functional explanation, the reason why E happens is that it will trigger F, i.e. (E→F) → E. Then the question has been converted into whether “→”indicate “implication”? Hume, in “On the Probable Inference: and On the Notion of causality”, proposed that: "the purposes of inferences are comparing and figuring out the constant and variant relationships between two or more facts [12]." The reason why causality could be the basis of inference is that in accordance with it we can find out the former or later objects/events of the current empirical phenomenon. Only if a result acquires proper proof it could become belief, which means the result deriving from causality playing the role of premise. Causality, as a probable inferring method, is contained in logic that pursues certainty. Hume [12]told us that the notion of causality is the source of reason and effect, at the same time, this notion deriving from the constant link of impression-notion: "comparing between ideas produces certainty, whose another source is steady relationship". Overall, Human causality has following features: (1) the objects linked by causality have close spatial and temporal relationships;(2) reason is in front of result temporally;(3)continuity among reasons and corresponding results. The latest character unfolds in time, basing on experience that beyond our perception, which also implies that if something could be experienced, it will have opportunity to become impression planting into mind. Then we inlet the time variable t into the above formula can get following result: (∀x)(E(x, t1) →(y)F(y, t2)) →((z)E(z, t3)). As it illustrates that time variable t1, t2 and t3 are not in the fixed order, which covers the second character of Humean causality; simultaneously, the continuity of history could be found in historical materialism as well; then the close relationships among individual constants spatially in the functional explanation reflects the first feature. Above all, we could, in a general meaning, acknowledge functional explanation is consistent with Humean causality. Although Hume goes from notion of causality to scepticism ultimately, when the black-box of induction has not been unblocked, the fruitful achievements from natural science defend its rationality. From chart 1, the functional explanation is consistent with empiricalism Table 1. The value of functional explanation. E F E→F (E→F) →F 1 1 1 1 1 2 1 0 0 1 3 0 1 1 0 4 0 0 1 0 Because conditions in the third and fourth rows together, as the last column value of truth is false, these possibilities will be eliminated; then in terms of the first and second rows, if E are true, no matter whether F are true or false, the result will be true. We need to avoid a possible misunderstanding that the value of truth in functional explanation have not be affected by the later items, because causal results would derive from any assumption, which cause the fact that it become the invalid reasoning. Only the inference in the first row that both E and F have true value reflects the empirical facts. Iterating the formula of functional explanation, we can acquire the following results: (1) (E→F) →F (2) ((E→F) →F) → (E→F) (3) (((E→F) →F) → (E→F))→ (E→F) →F) Advances in Sciences and Humanities 2019; 5(2): 43-48 45 The constant and temporal variable have been omitted from formulas. When a simplified functional explanation has been well established, it could be wholly as an antecedent in the next step, at the same time, the antecedent in the original formula would play the role of consequent in new proposition. This process could be repeated and it will always produce true sentences. To interpret empirical objects by this method, constants and temporal variable should be taken into consideration and this practice will be true in the meaning of truth-functions, since in functional explanation is of speciality, antecedent is a proposition, and the inference process starting with the accepted item, so that it is a self-sufficient circulation. Two concepts of “production” and “relationships of production” are introduced into functional explanation. That is “the relationships of production are R category relationships at t, as the result of it is suit for the current productive force, in other words, the level of productive force at t”, which means the productive force only determines the essence of relationships of production rather its whole features [14]. In comparison with the content written by Marx, it is clear this usage of productive force has been captured by historical materialism. 3. Understanding Just in the Technology Perspective G. A. Cohen draws a conclusion that "the essence of the priority of productive force is interpreting relationships of production by virtue of functional explanation [13]" from historical materialism. There is a distinction should be pay attention to is that Marx’s concept of productive force is not same as the productive power. The productive force means a capacity to commit oneself into material production, in which labours playing a role of subject in production, who devote themselves into the sensible and objective activity. In the process of production, the applied technology belongs to productive force, apart from labours. In evaluation of the relationships of production, it is essential to consider the current scientific level. During the high-level of science development period, production should be combined with science, which means "whether an item is or is not productive force is not contingent on its entity, while related to whether it can promote efficiency of production [13]". In the Marxist meaning, the relationship is not ownership in law rather practical dominance, which can control productive matters effectively. When Marx confers the right of determination to productive force, it seems that there are other elements playing important role in the development of society, such as technology, which is regarded as ontology in empiricalism tradition. As the result of overcoming alienation of technology is premise of eliminating technology ontology, Cohen start with it. He analyses historical materialism by “universal” historical materialism and “limited” historical materialism. “In the first category, the development of material and economy explains the characteristic of spirit evolution. In another category, spirit phenomenon cannot determine material development has been emphasized merely. ”Only at this moment, it uses materialism to interpret spirit phenomenon, otherwise, the barrier of material development would appear [17].” Cohen regards historical materialism as a theory that : (1) during the whole process of time, the productive force shows a rising inclination;(2) waves of social forms are due to whether they could serve to the above development. In the viewpoint of Cohen, there are two kinds of historical materialism:(1) the first is systematical development rotating around human productive force;(2)another kind is also systematical development, in which human productive force playing a special role. The “systematisms” of productive development emphases its automatic inclination, which means technology can go ahead by itself to some extent. Technology, out of human control, controls human beings. The autonomy of technology has some following suggestions: firstly, as the force in historical process, technology determines the direction of ideology, so that it becoming criteria in social critique. Secondly, technology is one part inside historical system endowing the interacting to determine the trend in evolution. Then the limitation of interacting between material and spirit is that it is not the case that spirit determines material. Technology alienation also can be eliminated. By functional explanation, Cohen gives the proof for the limited historical materialism proposition, in which “premise” means “adapt” is one-direction action: “if x adapt to y, then y do not need to adapt to x[14].” The systematic development of productive force plays the preliminary role in all elements, under this condition, as the result of one-direction adaption and productive force has been blocked to go backwards, the historical process showing evolutionary feature. In this meaning, Cohen verifies the premise proposition that “there is a certain inclination of productive force throughout history.” Both the nature of kindness and the capacity of rational choice give opportunity to people for modifying their habitats to adapt to life. Iin spite of science has serving effects on human life; it also causes a series problems. The capitalism society, depending on science, possesses substantial material products and vast social capital with large gap of wealth among different people; in the market without management, the property has double implications:(1)the economic ability and power structure based on capital; (2)new power structure causes material productive elements are distributed unequally, thus some people who do not have necessary elements or who only hold partial material resources have no choice but to devote themselves into reluctant work. Cohen started to rethink historical materialism from the viewpoint of philosophical anthropology: as the core of history development, human beings are both energy and narrator of history. Marx has emphasized people are at the centre of productive force, implying dimension of function. Cohen, however, notices human life relies on their own communities, which are defined by race, nationality, and religions apart from economic elements, so that the reason why communities can exist is because they meet the self-identity 46 Li Yong and Zhang Yi: On Cohen’s Critique of Technology and Social Justice of people. The spirit of community directs market into the right path. Because so-called free market does not have freedom in fact, which means if we hope to pursuit freedom and just in current conditions, we will not only need to develop technology, but also to carry out social critique. 4. The Social Critique of Just The aim of social critique is to compromise Marxism with formal philosophy for unifying freedom, equality and just in society. Historical materialism reveal the crux in history, while laws and essence explored by formal philosophy, as its metaphysics principles, are of universal and inevitable assumption. Cohen’s work looks like establishing a formal system, in which the just principle is constant. System designing and moral construction as variables are embedded into it through following process: (1) just principle reflects in practical situations; (2) and inlet empirical events into principles to acquire appropriate realizing scheme. 4.1. Compatibility Between Freedom and Equality Equality and freedom are the common pursuit of human beings, however, whether the glorious ideals could be achieved basing on current social conditions rather than in remote future? It is essential to bear in mind that current capitalism society has strong self-modifying capacity, which has eliminated the revolutionary possibility among the public. Economic crisis makes people loose adequate certainty to assure that by developing technical can create infinite surplus value. As practical situation has been different from Marxist assumption, so that Cohen acknowledge we could realize socialism just ideal by means of system designing and moral education. We hope in the just society, individuals are able to devote themselves into works with own will and individual growth can construct the condition for others free development. Cohen intend to find out a reasonable distribution scheme, which can promote productive development and compromise freedom with equality. He adapts a strategy by modifying theory of Robert Nozick. Nozick supposes just is adequate condition for freedom, because just society deriving from original freedom. However, practical illiberality and unequal phenomenon are result of natural development, so that we should hold tolerant attitude towards it. In spite of Nozick defend for illiberality and inequality; differences in talent and family background have not determined unequal results. Starting from this point, Cohen acknowledges that we have obligation to construct equal philosophy of politics in the relative poor era. In a more specific meaning, we could establish communities to break the limitations endowed by individual families, then people with same ability can acquire equal chance to pursuit their own sufficient development conditions. This also makes requirements for people that they should give up the motivation of “adaptive preference” just and insist principles of communities, serving for each other’s needs. Nozick believes that freedom and equality are contrary to each other. He defends for inequality from two premise:(1) “self-ownership”; (2) nobody can own the natural outer world to themselves. Everyone, who own themselves, devote their labor into outer world, so that the products containing labour of people [15]. Nozick puts forward the condition of if anyone intend to occupy the object O, which has no owner and can be possessed by every people is that the object O exits from public field but it does not make prospect of other people to be worse. While Locke proposed, conditions of ownership includes:(1)individuals can occupy the products that containing their work;(2) they have to leave enough good things for other people;(3) at the same time they have not wasted what they acquired. Above all, Nozick weakens “Locke’s conditions”, because he did not emphasis the first and the third conditions. As the result of Nozick ignored several anti-facts situations, the inequality is not the inevitable outcome deriving from “self-ownership” [10]. Liberals and socialists issue two criteria for freedom and just. Regarding to liberals, who starting from original equality, reconcile it is acceptable that a bit of inequality existing in resources distribution. On the other hand, Cohen designs a new strategy that to construct rational system basing on empirical changes to maintain dynamic equality. In order to realize the scheme, he has designed Able and Infirm model to interpret that the compatibility between union ownership and self-ownership. Society is constituted by the Able and the Infirm in accordance with their productive capacity. The vote is held by the Infirm, which means whatever Able want to product must achieve agreement from the counterpart. At the same time, it is essential to check the Infirm group to rule out the possibility some Able hide in it, so social production efficiency can reach the adequate level. The vitality of co-ownership lies in the consensus of goodness. In a society the Infirm and the Able can convert to each other at different time, in other words, the current Infirm may convert to the Able some years later, vice verse. In spite of there is still competition in the communities, every competitor will not be abandoned as the result of failure in the competition. Liberals, however, hold the point that if union ownership mix with self-ownership, then the later will be eliminated. Assuming the union self-ownership is C(x) and ownership is S(x), formal ownership is F(x) and practical ownership is P(x), veto power is D(x), doing nothing is N(x). Then the point of Nozick can be presented as following: C(A, I) ∧S(A, I) →F(S(A)) C(A, I)∧S(A, I) F(S(A)) Nozick points that if union ownership and self-ownership are contrary to each other, in addition to union ownership is dominant, then self-ownership has been denied.. While Cohen hold different viewpoint that self-ownership is compatible with union ownership, in other words, practical self-ownership does not exclude vote power(P(S(A, I)) ∧D(I)). 1. D(I) ∧F(S(A)) →N(A) ￢N(A) ￢(D(I) ∧F(S(A))) Advances in Sciences and Humanities 2019; 5(2): 43-48 47 2. ￢(D(I) ∧F(S(A)))↔￢D(I) ∨￢F(S(A)) 3. C(A, I)→D(I) C(A, I) D(I) 4. D(I)∧(￢D(I) ∨￢F(S(A))) (D(I)∧￢D(I))∨(D(I)∧￢F(S(A))) D(I)∧￢F(S(A)) ￢F(S(A)) The ultimate result represent that P(S(A, I)) [15] is well-established. When we demonstrate two ownership system can be harmony with each other, the liberty can co-exist with equality in a possible world. 4.2. System Designing of Justice and Equality Rawls hopes to seek out a universal meaning of justice with internalist implicature. It is able to maintain fixed cooperation, because individuals may be on guard for their own interest against others in absolutely situation. The contract is conducted behind the veil of ignorance, that can products just system by means of rational allocation of rights and obligation. When the conflicts of interests happen, it can still keep the society in balance. In the process of allocation, the “the Difference Principle”, the unequal distribution in economy field is of permissibility only if it maximizes the benefits of the least favored [13]. Cohen, however, [2] thinks the so-called “the Difference Principle” is in defense of inequality in nature. Rawls designs just social system in accordance with the spirit basing on “veil of ignorance”. This kind of constructivism justice substitutes “what is justice” with “how to formulate ideal social management rule”. As limited by practical environment, the public have sway away from pure justice and this change causing injustice. Apart from it material stimulation strategy have meet the requirement of “the Difference Principle”: the Able devote themselves into social progress and they should be paid corresponding salaries. Because the whole development of society will be benefit for modify living situation for the poor. On the other hand, as the result of struggling for life, the poor must endure tough life causing by the gap of wealth, thus the stimulating mechanism in “the Difference Principle” compromise with selfish character shaped by capitalism calmly. It is vital that modifying only represents increments, in other words, the weaker still have to rely on the wealthy people for living, and the original inequality will increase in an exponent way as time goes by. In terms of Cohen’s view, the equality between the poor and the wealthy is still a remote ideal under “the Difference Principle”, so that the socialism opportunity equality could be a reasonable alternative, because it merely contains difference in intended choices, which means the inequality caused by variety of choices and preferences. In “why not socialism” Cohen constructs camping trip model to check reciprocal and sharing principle. During the trip everyone has opportunity to go through glorious time with each other by sharing private goods, serving for others with unique talent, and cooperating in accordance with their willing, so that they can become reciprocal friends without worries about struggling for living. The reason why camping trip is glorious locates in equality, the more specific expression is socialism opportunity equality and sharing can realize in it. In order to realize equality we have to wipe away the chance barriers undertaken by the partial. There are also two kinds of chance equality. The first is capitalist chance equality that enlarges the public opportunity by eliminating limitation caused by social idea from right allocation and prejudice [2]. Another is liberalism equality, rejecting inequality deriving from family background, claim to gift and free choice determine individual destiny. While socialism opportunity equality avoids inequality from different talents as well as negative result caused by inevitable conditions. Difference can only reflect interests and choices. In the camping trip people accept inequality in a limited field. Then when we enlarge it to the market, the inequality also increase correspondingly. As it said that “market is inevitable” [2]. Socialism opportunity equal should be improved by sharing principle, that people take care of their companions in the context of market. The purpose and the aim has be tied together, in which “wiling “is the motivation of all actions, thus the inner motivation rooted in the good nature. Cohen hopes to figure out the crux from selfishness and limited technology in the category of socialism equality. Eventually, he attributed the problem to the ignorance of how to use and develop general character to run the market. There is an eclectic method that “inlet strong sharing and equal spirit into selfish choice, at the same time the latest element must be controlled [2]”. This is market socialism. By means of critique theory of Nozick and Rawls, Cohen demonstrates that the equality compatible with freedom and justice respectively. Therefore, just society implies equality, freedom as well as justice, which has been a well-established premise. Cohen’s inspiration enriches the meaning of just. During the process of realizing just ideal, we should not only put forward science and technology reaching higher stage, but also convert the motivation of public, planting individual will into mutual service. The journey to just starts with virtuous kindness from heart. References [1] Cohen, G., 1994. Back to Socialist Basics. New Left Review, 0(207), pp. 3-16. [2] Cohen, G., 2011. Why not Socialism?. Beijing: Renmin press. [3] Cohen, G. A., 1966. Beliefs and Roles. London, Oxford University Press. [4] G. A. Cohen, 1989. On the Currency of Egalitarian Justice. Ethics, 99(4), pp. 906-944. [5] G. A. Cohen, 1995. The Pareto Argument for Inequality. Social Philosophy and Policy Foundation, 12(1), pp. 160-185. [6] G. A. Cohen, 1997. Where the Action is: On the Site of Distributive Justice. Philosophy & Public Affairs, 26(1), pp. 3-30. [7] G. A. Cohen, 2000. If You're an Egalitarian, How Come You're 48 Li Yong and Zhang Yi: On Cohen’s Critique of Technology and Social Justice so Rich?. The Journal of Ethics, 4(1/2), pp. 1-26. [8] G. A. Cohen, 2003. Facts and Principles. Philosophy & Public Affairs, 31(3), pp. 211-245. [9] G. A. Cohen, 2006. Review: Luck and Equality: A Reply to Hurley. Philosophy and Phenomenological Research, 72(2), pp. 439-446. [10] G. A. Cohen, 2008. Self-ownership, Freedom and Equality. Beijing: Oriental press. [11] Gerald A. Cohen and H. B. Acton, 1970. Symposium: On Some Criticism of Historical Materialism. Proceedings of the Aristotelian Society, Volume 44, pp. 121-156. [12] Hume, D., 2009. A Treatise of Human Nature. Beijing: the commercial press. [13] Qiao Ruijin, et al., 2013. The British Neo-Marxism. Beijing: Renmin press. [14] Wei, C., 2008. On Cohen's ' primary life problem'. Lanzhou Academic Journal, 4(175). [15] Zhongqiao, D., 2013. A Criticism of Libertarianism from the Socialist Perspective: G. A. Cohen's Rebute of Robert [16] Nozick's ' self-ownership' proposition. Social Sciences in China, Issue 11. [17] Zhongqiao, D., 2013. G. A. Cohen's Reconsideration of Historical Materialism. Philosophical Researches, Issue 2, pp. 21-28. [18] Zhongqiao, D., 2013. G. A. Cohen's defense of Three Basic Problems in Historical Materialism. Hebei Academic Journal, 33(2), pp. 29-34. 
work_5xua5dphavf75aw2vhiltmr3w4	----	Democratic Distributive Justice Ross Zucker Cambridge University Press, Cambridge, 2001 ISBN 0-521-7903-36. Contemporary Political Theory (2002) 1, 245–246. DOI: 10.1057/palgrave.cpt.9300033 A curious feature of Anglo-American political theory in recent decades has been the divide between democratic theory and liberal political philosophy. Comparing and contrasting classics of each, notably Dahl’s Democracy and its Critics on one side and Rawls’s A Theory of Justice and Political Liberalism on the other, reveals the democratic theorist’s suspicion of regarding substantive social and economic rights as primary democratic rights, and the theorist of justice’s suspicion of the capacity of merely procedural democracy of the broadly polyarchal (or perhaps ‘aggregative’) kind to produce just outcomes. In Democratic Distributive Justice, Ross Zucker argues in impressive and often meticulous detail for the view that ‘a political system does not qualify as a democracy unless it brings about a just economic order as well’ (p. 277). In this way, he argues that procedural conceptions of democracy F which he sees as dominant in democratic theory, as exemplified by Dahl’s major work F are inadequate, since they fail to recognize and therefore to embrace the importance of a certain form of income equality between citizens. Zucker deduces this substantive economic democratic right by a complex process of reasoning. The essence of the argument is that, in a capitalist economy, wealth is a product of orientations and preferences of consumers as well as producers. All members of the economic system make a contribution to the creation of economic value, since ‘Produced commodities will not have value F will not form particles of wealth F unless they are wanted or needed’ (p. 85). This contribution needs to be recognized, as commonly it is not. The form that such recognition should take, according to Zucker, is a collective commitment to the equalization of a portion of income: ‘since individuals make some equal indirect contributions to value, they are due proportionate benefits’ (p. 280). Much of the book buttresses the varied elements of this deductive argument. Key sections and chapters address liberal theories of property, the ethics of community as they should be applied to the economy, the nature and implications of the endogenous formation of market preferences, and the current state of democratic theory with regard to economic justice. Many parts of the argument are compelling, such as the critique of the liberal ‘hidden premise of subjective personality’ and Contemporary Political Theory, 2002, 1, (245–246) r 2002 Palgrave Macmillan Ltd 1470-8914/02 $15.00 www.palgrave-journals.com/cpt the dependence of capitalist economies on a sub-structure of economic community. The book is erudite, closely reasoned and tightly written, and its tone engaged and serious. Importantly, Zucker gets to the nub of key issues involved in the democratic theory debates he wishes to influence. He sets out with commendable clarity, for example, his view that ‘current ‘‘democracies’’ that lack the redistributory property right do not qualify as true democracies along this dimension’ (p. 6). There are many arguable points, starting with the promotion of unambiguous end-state reasoning at a time when even Rawlsian theorizing has adopted a brand of deliberative proceduralism (whether hypothetical or actual), in the face of criticism of the idea that the reasoned deduction of democratic rights may be a sufficient basis for their acceptance. However, Zucker’s thesis deserves widespread attention both for its tight and comprehensive character and for its substantive importance at a time of widening inequalities in market economies. Michael Saward Faculty of Social Sciences, The Open University. Book Reviews 246 Contemporary Political Theory 2002 1 Democratic Distributive Justice 
work_5zq7k5onwrg4pifdmnaouzzxsa	----	12Chapt6Kiernan.p65 92 Human Rights Review, April-June 2000 92 Bringing the Khmer Rouge to Justice Ben Kiernan In 1974, I began a quarter century of research on the Khmer Rouge move- ment. As an undergraduate I wrote an empirical study of their insurgency against the Sihanouk regime in the late 1960s1 and soon published several shorter articles. At first I was relatively sympathetic to their purported reforms and nationalism, but when I commenced Ph.D. research in 1978, I acknowl- edged my error and began a two-decade project of documenting the crimes of the Khmer Rouge regime.2 By 1980 I had interviewed hundreds of Cambo- dian survivors and had begun to publish their accounts.3 In Australia during the 1980s, I translated most of my interviews, as well as key Khmer Rouge documents, and wrote detailed accounts of specific aspects of the genocide.4 I also published historical analyses of the Khmer Rouge rise to power.5 At Yale University in 1994, I established the Cambodian Genocide Program, to continue this work with a grant from the U.S. Department of State. In Janu- ary 1995, we opened the Documentation Center of Cambodia in Phnom Penh. Four years later, the United Nations Group of Experts completed its report to UN Secretary-General Kofi Annan on the legal ramifications of the Cambo- dian Genocide. In March 1999, this report was published by the Secretary- General. It stated: Over the last 20 years, various attempts have been made to gather evidence of Khmer Rouge atrocities to build a historical record of these acts. For nearly 20 years, scholars have been accumulating such evidence by talking with survivors and par- ticipants in the terror and reviewing documents, photographs, and gravesites. The most impressive and organized effort in this regard is the Documentation Center of Cambodia, located in Phnom Penh. Originally set up by Yale University through a grant from the Government of the United States of America, the Center now func- tions as an independent research institute with funding from several governments and foundations. It has conducted a documentation project to collect, catalogue and store documents of Democratic Kampuchea, as well as a mapping project to locate sites of execution centres and mass graves.6 The report went on to recommend the creation of an international tribunal to judge the crimes of the Khmer Rouge leadership. Cambodia is now study- ing the establishment of a “mixed” national and international tribunal. This Kiernan 93 success was achieved under fire, not only from the Khmer Rouge, but also a sustained barrage from the West’s most powerful newspaper. The Cambodian Genocide Program, 1994–1999 “The only research operation in the world that focuses on Khmer Rouge atrocities, apart from Yale’s genocide program.” This is how the Editor-at-Large of the the Asian Wall Street Journal described the Documentation Center of Cambodia in 1997.7 Despite this, the Wall Street Journal led a campaign against Yale’s Cambodian Genocide Program (CGP) throughout the two-year period in which the CGP created the Documentation Center.8 April 17, 1995, marked the twentieth anniversary of the seizure of power by the genocidal Khmer Rouge regime. The Wall Street Journal chose the occasion for a long editorial-page article appealing to the U.S. State Department and Congress to revoke the Department’s inaugurating grant to the CGP, labeling its Director (me) a “communist” with Khmer Rouge sympathies. The appeal failed after the Journal published responses, but the paper followed with further ad hom- inem barrages, again directed at the CGP’s source of funds. Fortunately, this pro- voked an encouraging display of support, including letters from twenty-nine leading international Cambodia specialists and various other scholars in my defense.9 The Khmer Rouge, meanwhile, “indicted” me as an “arch-war criminal” and an “ac- cessory executioner of the U.S. imperialists.”10 Despite attacks from two sides, we pursued our mandate to establish a comprehensive, publicly accessible archive and documentation database on the Khmer Rouge genocide, and to train Cambodian scholars and archivists to manage and enhance it. The next year, the Asian Wall Street Journal fired another volley at the CGP, this time chastising us for not giving priority to the search for U.S. servicemen missing in action from the 1970-75 Cambodian war—before the Khmer Rouge takeover.11 To discourage further funding for the CGP, the article described me as “the grant world’s equivalent of box office poison.” The Wall Street Jour- nal republished this piece and proclaimed to readers in an accompanying edi- torial that the CGP was closing down the next month.12 None of this was true—though the Journal now declined to print responses or corrections.13 In that three-month period, the CGP in fact raised $1.5 million, quadrupling its original grant. The CGP and the Documentation Center of Cambodia were now assured of funding for the next five years, a prospect beyond our wildest hopes in 1995. The Documentation Center, with the massive archive of Khmer Rouge internal documents we assembled in 1995-96, has now become Cambodia’s first independent research institute on the history of Pol Pot’s Khmer Rouge regime, known as “Democratic Kampuchea” (DK), which pre- sided over the deaths of 1.7 million people. Why did the Wall Street Journal launch such a campaign in 1995? Why the attempt to scuttle the world’s only research operation on the Cambodian geno- 94 Human Rights Review, April-June 2000 cide? Why did the Journal choose the same target as the Khmer Rouge did? Why did it fail? What is the nexus between denial of genocide and attempts to foreclose its investigation? In this case, as we shall see, there is a complex relationship between assertion and suppression.14 I will discuss two forms of denial of the Cambodian genocide and one of suppression. First, the outright attempt to deny that anything serious oc- curred. In 1984, Bunroeun Thach, then of the University of Syracuse’s po- litical science department, took this position. He praised “Democratic Kampuchea political leaders” for having successfully “buried the past,” at- tacked what he called Hanoi’s campaign “to discredit the Communist Party of Kampuchea,” and argued for including the Khmer Rouge in Cambodia’s future.15 Thach won few scholarly converts, but another Cambodian with similar views was Sorpong Peou, who opposed legal accountability for the Khmer Rouge geno- cide. As late as March 1997, Peou proclaimed: “Punishing Pol Pot will not solve the problem.” He added: “Prosecution in a condition of anarchy is wishful thinking and may hinder national reconciliation.” The journalist who interviewed him re- ported that Peou “says he is willing to forgive for the sake of breaking the cycle of deception and pre-emptive violence.” The reporter also wrote: “Sorpong supports reconciliation with the Khmer Rouge rather than punishment for past crimes [and] supports the pragmatic strategy of incorporating Khmer Rouge defectors into the government structure in the hope that the movement will die a natural death.”16 Peou’s apologetics for the Khmer Rouge was more influential than Bunroeun Thach’s. Holocaust and Genocide Studies published his review of my 1996 book The Pol Pot Regime. In his review, Poeu called the Khmer Rouge leaders “so- called ‘genocidists.’” He linked what he called “the pre-emptive nature of the violence” to “Pol Pot’s egalitarianism,” his “prudence,” “insecurity,” and “vulnerability,” and “the fickleness of popular support.”17 Extraordinarily, Peou claimed, “From 1970 to 1975, the Cham Muslims were not perse- cuted at all.” When he did acknowledge massacres of Chams, he denied they were premeditated, despite overwhelming evidence. He then claimed that “the Pol Pot group made several—unsuccessful—attempts to limit the killing.”18 It is extraordinary to read such assertions in the journal of the U.S. Holocaust Memorial Museum. Few authors have shown such boldness in defending the Khmer Rouge genocidists. A colleague of Peou’s, Stephen R. Heder, in 1991, described most of the top-level Khmer Rouge leaders as “dissidents” who were “suspect in the eyes of Pol Pot.” These alleged “dissidents” even included Son Sen, Deputy Prime Minister and CPK Security chief, Chhit Choeun alias Ta Mok, the Khmer Rouge military commander, Ke Pauk, the deputy military com- mander, and Deuch, the chief of the notorious Tuol Sleng prison. Heder wrote that “such surviving dissidents as Son Sen and Kae Pok and perhaps even Ta Mok and Deuch have been wrongly depicted as ‘Pol Pot loyalists.’” Kiernan 95 Heder went on to assert that “there were only two prominent Kampuchean communists who were not suspect in the eyes of Pol Pot and Nuon Chea. They were Ieng Sary...and Khiev Samphan....Both Ieng Sary and Khiev Samphan were apparently considered completely loyal and lacking the domestic political strength with which to challenge Pol Pot and Nuon Chea in any way.”19 However, when Ieng Sary and Khieu Samphan came within reach of legal action, Heder backpedalled. In 1996, Ieng Sary defected to the Cambodian government. Heder now described Ieng Sary as having shown signs of “dis- sent and deviation” from Pol Pot’s policies. In Ieng Sary’s zone in the 1980s, “it was possible for peasants to accumulate small amounts of wealth,” Heder said, adding that “China would have seen Ieng Sary as more reasonable” than Pol Pot. Moreover, Heder reportedly went on, “those differences may have existed” under the Pol Pot regime from 1975 to 1979, “with Ieng Sary advocating a more tolerant attitude toward intellectuals and being accused in the Communist inner circle of wanting to coddle the bourgeois elite.” Heder added, “There’s no evidence to suggest that Ieng Sary was ever No. 2, or that he had the kind of power base to allow him to enforce his will.”20 (Sary was in fact No. 3 to Pol Pot. Hypocritically, Heder branded the Cambodian Genocide Program as soft on Sary!)21 A Khmer Rouge aide to Ieng Sary even quoted Heder’s statements on Radio France-Internationale that, “according to the documents I have re- ferred to, Mr. Ieng Sary is the only one, among Khmer Rouge leaders, about whom I have so far been unable to gather tangible evidence showing that he initiated or applied purges against intellectuals.”22 Khieu Samphan was certainly not in that category. In another 1991 paper, Heder had concluded: “Khieu Samphan’s political star rose literally on heaps of corpses. He continued to rise in importance as he helped Pol Pot purge other communists….” Samphan, according to Heder, was “one of the key ac- complices in the political execution machine that Pol Pot created” and “one of Pol Pot’s chief servitors, second perhaps only to Nuon Chea.”23 But again, in 1999, after Khieu Samphan surrendered with Nuon Chea, Heder suddenly began to state that the case against Samphan was inadequate: “There are cases to be answered by Khieu Samphan and Ieng Sary, but on the avail- able documentary evidence you have to be less confident they would ever be convicted....There is other evidence against Khieu Samphan that implicates him in the purge process but little or no documentary evidence that would stand up in court. But that’s not to say we won’t suddenly dig up such a docu- ment tomorrow.” Indeed, Heder has now dug up evidence to convict those he had described in 1991 as anti-Pol Pot “dissidents.” Mok and Ke Pauk, as well as Nuon Chea, could be indicted on the basis of transcripts of messages between these cen- tral leaders and zone commanders relating to arrests and killings. But in an interview with a reporter, “Heder said the weakness of the cases against Khieu 96 Human Rights Review, April-June 2000 Samphan and Ieng Sary related to ‘indirect command responsibility,’ a con- tentious issue under international law.” 24 This is false. War crimes cases do require proof of “command responsibility,” but in cases of crimes against humanity and genocide, what is needed is proof of a conspiracy. International lawyer Dr. Gregory Stanton writes: Heder is wrong about Khieu Samphan and Ieng Sary’s culpability for crimes against humanity and genocide. All one needs to show for those crimes is participation in a conspiracy. To prove their attendance at meetings of the Central Committee where decisions were made to eradicate Chams or to uproot everybody in the Eastern Zone would be enough. Ieng Sary’s diary evidently shows that he was well aware of the plans to exterminate the enemies of the party. Khieu Samphan can probably be shown to have been equally aware of the party’s policies.25 He was. We have complete copies of the minutes of fifteen meetings of the most powerful body in Democratic Kampuchea—the Standing Committee of the Central Committee of the ruling Communist Party of Kampuchea. These crucial Standing Committee meetings were held between October 9, 1975 and May 30, 1976. Khieu Samphan is recorded in the minutes (under his revolu- tionary name Hem) as having attended twelve of these fifteen meetings. The minutes of two of the meetings do not record who was present, but it is likely that Samphan was there as well, totaling fourteen out of the fifteen meetings for which we have evidence. At the meeting of October 9, 1975, the Standing Committee put Samphan “in charge of the Front and the Royal Government; [and of] the accountancy and pricing aspects of commerce.” Samphan was also made President of the State Presidium (i.e., Head of State of Democratic Kampuchea) by a decision of the Central Committee on March 30, 1976.26 In 1977-78, he also headed the powerful Office of the CPK Central Committee (“Office 870”). In April 1977, soon after he assumed this post, Samphan de- clared publicly, “We must wipe out the enemy [and] suppress all stripes of enemy at all times.”27 The diary of an aide to Ieng Sary reveals the following view: “In our country, one percent to five percent are traitors, boring in....[T]he enemies are on our body, among the military, the workers, in the cooperatives and even in our ranks....These enemies must be progressively wiped out.”28 More common than Heder’s mental gymnastics is a consistent view that what occurred under the Khmer Rouge, though murderous, was not genocide. Two historians of Cambodia, Michael Vickery of the University Sains Malaysia and Monash University’s David P. Chandler, both take this position. They op- pose the Khmer Rouge, but they have categorized the regime’s crimes as other than genocidal.29 Vickery, who considers the Khmer Rouge guilty of “intolerable violence” and “mass murder,” argues that in Cambodia, unlike China and Vietnam, “na- tionalism, populism and peasantism really won out over communism.”30 “The violence of DK was first of all because it was such a complete peasant revolu- tion, with the victorious peasant revolutionaries doing what peasant rebels Kiernan 97 have always wanted to do to their urban enemies.”31 Vickery believes an or- thodox Marxist regime would have been preferable. Chandler, by contrast, holds Marxism responsible for the violence, downplaying other factors like racist or genocidal policies. He argues, “Under the regime of Democratic Kampuchea (DK), a million Cambodians, or one in eight, died from warfare, starvation, overwork, misdiagnosed diseases, and executions. Most of these deaths, how- ever, were never intended by DK. Instead, one Cambodian in eight fell victim to the government’s utopian program of total and rapid social transformation, which its leaders had expected would succeed at far less cost.”32 This technical denial of genocide, though in my view incorrect, is quite le- gitimate.33 Vickery and Chandler do not fit into the category of Holocaust revisionists like Serge Thion, who deny the very concept and the plausibility of genocide. Thion indefensibly prefers the term “deportation” for the fate of Jews in Nazi-occupied Europe, and casts doubt on the evidence for the gas cham- bers.34 (In the Cambodian case, Thion argues that the Khmer Rouge’s crimes should be tried in a Cambodian court, rather than an international one.)35 By contrast, arguments that the Cambodian people suffered not genocide but “a peasantist revolution of the purest sort” (Vickery) or “the purest and most thoroughgoing Marxist-Leninist revolution” (Chandler),36 have a defensible intellectual basis. The analyses of Vickery and Chandler are also more honest than a third position which consists, in the style of the Wall Street Journal editorial page, in noting that genocide occurred, while attempting to block investigation of it. I shall now examine various attempts to suppress the CGP’s historical account- ing of the Cambodian genocide, in the hope of uncovering a lesson for future chroniclers of crimes against humanity. In conclusion, I shall weigh the argu- ments of those who reject use of the term “genocide” in the Cambodian case, against the actions of those who have tried either to turn public inquiry to other issues, or simply to suppress the facts of the case. The first attempt to derail the CGP came from a man describing himself as “a poor Chilean, a citizen of the Third World.”37 Julio A. Jeldres had left Chile before the 1973 coup, and subsequently moved to Australia and then Cambo- dia. In the 1970s, Jeldres not only was a supporter of the Pinochet military dictatorship in Chile, but was also a member of a Khmer Rouge international front organization.38 Within weeks of our launching the Cambodian Geno- cide Program, in 1995 Jeldres published an article entitled “Genocide Investi- gation Off on the Wrong Foot.”39 In reply, I noted Jeldres’ support for the Pinochet regime.40 Jeldres quickly denied “doing work for the regime” of General Pinochet, claiming he was “a member of the Chilean Folk Dance Group, a non-political, cultural associa- tion.”41 But a statement Jeldres published in 1975, which he signed as “Presi- dent of the Chilean Club,” made no mention of folk dance. In it, Jeldres expressed his sympathies with Pinochet’s Chile, which he called a victim of 98 Human Rights Review, April-June 2000 “the Australian government’s attitude to my country.” He praised Pinochet’s 1973 coup for ensuring merely that “marxism was ousted.” Instead of protest- ing the destruction of Chilean democracy, Jeldres denounced the international outcry over it. Like Pinochet, he equated democracy with communism, and complained that the Chilean dictatorship was “the ‘target’ of a communist international campaign against us.”42 So it was not surprising to find Jeldres later attempting to block action against another murderous regime, this time in Cambodia—especially because for at least five years, he had been an “Honorary Member” of the Khmer Rouge front organization known as FUNK. In 1976, he had privately boasted of this con- tinued “honorary” status.43 In 1978, at the height of the genocide, Jeldres sided with the Khmer Rouge against their Vietnamese opponents, and even claimed that the Pol Pot regime told him all he needed to know. As he then put it, “I am kept fully informed by the Cambodian Embassy in Peking.”44 In 1995, cam- paigning against the CGP’s investigation of the Khmer Rouge period, Jeldres continued to claim that in 1978, Pol Pot’s embassy “was the only source of information on what was going on in Cambodia.”45 He was alone in exclud- ing consideration of information from refugees and victims of the genocide. In the 1980s, Jeldres was associated with another Khmer Rouge front, the exiled Coalition Government of Democratic Kampuchea.46 In the early 1990s, he joined the magazine Khmer Conscience, which published the writings of Bunroeun Thach (see earlier reference).47 In Cambodia’s English-language press in 1995 and 1996, Jeldres continued to denounce the CGP’s investiga- tion of the Khmer Rouge regime.48 Attempts by such people to suppress the only research program to docu- ment Khmer Rouge crimes comprise a new variation on the politics of geno- cide “denial.” Longtime allies and even members of Khmer Rouge organizations have portrayed themselves as opponents of the genocide, thus seeking cred- ibility for their demand that its investigation be cut short. This political chica- nery should not, however, be confused with differing definitions of genocide, or with other scholarly debate about the nature of the tragedy. The Wall Street Journal attack on the CGP was begun by Stephen J. Morris, who had met Julio Jeldres in Bangkok a decade earlier.49 Throughout the 1980s, Morris, like Jeldres and Bunroeun Thach, devoted himself to political activism in support of Cambodian factions who were allied to the communist Khmer Rouge, but whom Morris praised as “anti-communist.” In 1989, Morris com- plained that the democratic government of Thailand was selling out the Khmer Rouge. “It has now gone so far that Thai commanders have provided Phnom Penh’s artillery commanders with precise intelligence on the location of Khmer Rouge units.”50 In the winter of 1990, Morris addressed a meeting of Cambo- dians in Brighton, Massachusetts. According to witnesses, Morris “took the floor and in an impassioned speech warned Cambodians in the room that they should not do anything that would appear to support the Vietnamese Kiernan 99 backed government of Cambodia, including bringing attention to Khmer Rouge atrocities. He did not support a trial of the Khmer Rouge and attributed his inside information about the Cambodian situation to having dined with Khmer Rouge leaders.”51 Morris wrote, “The real Khmer Rouge military aim...is to force Phnom Penh to accept a comprehensive political settlement such as the UN peace plan.”52 His attack on the CGP’s investigation of the Khmer Rouge was predictable. So was Morris’ praise for Stephen Heder, whose “pro-Khmer Rouge views” Morris had once noted.53 More surprising was the Wall Street Journal’s readiness to give space to a writer who had embarrassed it once before. In 1990 Morris attacked Lesley Cockburn, an American Broadcasting Company producer, for her feature on Cambodia.54 Objecting to the feature’s accurate portrayal of the United States’ diplomatic support for the Khmer Rouge in the 1980s, Morris also pilloried what he called “Ms. Cockburn’s 1987 PBS Documentary, ‘Murder on the Rio San Juan.’” Cockburn had had nothing to do with that program, and the Journal’s Editor conceded that Morris had made “an error.”55 The Journal’s assault on the CGP attracted the attention of the Reader’s Di- gest, which investigated reprinting it. A Digest research editor called me on May 22, 1995, to ask, among other things, if I had ever used Marxist terms. He then called the head of my department at Yale and asked if I was a communist. More confidently, he questioned another senior member of the department, “Did you know Kiernan was a communist?” But when my reply to Morris’ second attack appeared in the Wall Street Journal on May 30, the Digest de- cided not to republish his article. The Journal gave Morris a third opportunity to repeat his allegations. The last word came when twenty-nine international Cambodia scholars wrote that “Kiernan has been an outspoken and untiring opponent of the Khmer Rouge for 17 years,” while “Morris supported a coalition government-in-exile which was dominated by the Khmer Rouge.” These scholars, who included Vickery and Chandler, despite their differences with the CGP on the issue of geno- cide, added: “We have full confidence in Professor Kiernan’s integrity, profes- sional scholarship, and ability to carry out the important work of the Cambodian Genocide Program.”56 Thus, a phase of the campaign ended. Having lost the debate in the aca- demic world and the media, Morris moved to the realm of raw power. Ron Marks, a CIA officer seconded as Special Assistant to then Senator Bob Dole, drafted a letter repeating Morris’ charges against me. Six senior Republican Senators—Dole, Senate Majority Leader Trent Lott, Senate Foreign Relations Committee head Jesse Helms, and three others—sent the letter to the U.S. Secretary of State on August 7, 1995. Two of the signatories, Trent Lott and Jesse Helms, were associated with the Council of Conservative Citizens, which claims, among other things, that interracial marriage “amounts to white geno- cide,” that Jews have “turned spite into welfare billions for themselves,” and 100 Human Rights Review, April-June 2000 that African Americans and Latinos suffer from “high crime and low intelli- gence.” In 1992, Senator Trent Lott had given the keynote speech to a national board meeting of the Council. “The people in this room stand for the right principles and the right philosophy,” he said (six years later Lott falsely claimed that he had “no firsthand knowledge” of the Council’s views).57 As the letter went off to Albright, a Morris backer from the conservative Heritage Foundation approached Alphonse LaPorta, head of the State Department’s Office of Cambodian Genocide Investigations, and said, “If you don’t get rid of Kiernan, we’ll go after you.”58 LaPorta concluded that if I did not step down, the Senate would revoke the grant to the CGP, ending our investigation of the Khmer Rouge regime. I held my ground, with strong sup- port from Yale University. On October 2, new support arrived. An editorial in the conservative Washington Times praised the CGP’s achievements and de- scribed the Morris and Dole campaign against me as “lunacy.”59 The issue blew over with the CGP’s Congressional backing enhanced.60 On September 17, 1996, Nancy deWolf Smith of the Asian Wall Street Jour- nal called me from Hong Kong. She said something “is becoming an issue.” This was that the previous month the Pentagon had not gained immediate access to the archives of the Khmer Rouge secret police, which CGP staff from the Documentation Center had discovered in Phnom Penh in March 1996. Smith had the impression, which we could not confirm, that these 1975-79 documents contained information on the fate of Americans missing in Cambodia from the 1970-75 war. I explained that the Pentagon had not consulted me before send- ing its contract researchers directly to Cambodia the previous month. They had arrived at the Documentation Center saying, “It’s all settled.” They wanted to start work then and there, before the files had been catalogued. On September 12, I invited them to return in January, after we had com- pleted our documentation of the Khmer Rouge genocide for the State Depart- ment. The Documentation Center, with CGP funding, would then be free to serve the Pentagon’s different needs. On October 23, James W. Wold of the Pentagon’s MIA office accepted my offer. I responded on October 25, recon- firming to General Wold that his researcher David Chandler was welcome to work in the Documentation Center’s archives in January-February 1997.61 Wold’s office called that afternoon to thank me. The State Department fol- lowed suit, as did Chandler.62 Three days later, on October 29, in the Asian Wall Street Journal, Smith falsely accused me of withholding cooperation from Pentagon researchers.63 I re- plied by fax on November 4, but Smith’s newspaper held back my reply, pass- ing it on to the Wall Street Journal in New York. On December 5, Mr. George Melloan, the Journal’s Deputy Editor (International), requested a copy of “the letter you received from General Wold.”64 I faxed it to Melloan immediately. This letter confirms my September 12 offer to the Pentagon. However, on De- cember 19, the Journal republished Smith’s October piece, alongside an edito- Kiernan 101 rial stating: “Mr. Kiernan refused the Pentagon researchers access to the docu- ments. He continues to do so to this day, and will continue to do so until his project closes.”65 Two weeks earlier, Melloan had received irrefutable evi- dence that we had scheduled the Pentagon’s visit for the following month. This dishonest editorial appeared simultaneously in the Asian Wall Street Journal.66 Both newspapers also finally printed my short letter of Novem- ber 4, but refused to publish corrections to their new editorial. Mr. Terrill E. Lautz, Vice-President of the Henry Luce Foundation, wrote that I had re- ceived a $250,000 grant from his foundation—in October 1996, just as Smith was describing me as “the grant world’s equivalent of box office poison.” The Journal declined to print this letter, Yale’s own reply, or even a letter from the Pentagon. The paper left readers, potential funders, and the Khmer Rouge with the false impression that the CGP was to “close” in January 1997.67 On the contrary, in January 1997 the CGP launched a new World Wide Web site, including four large databases documenting the crimes of the Khmer Rouge regime.68 Chandler worked in the Documentation Center’s archives in Febru- ary 1997 as arranged, and returned in May. Though neither he nor his Penta- gon employers have yet announced whether he has found any information on American MIAs, Chandler again thanked us for our cooperation. We have seen no such acknowledgement from the Wall Street Journal. But the Editor-at-Large of the Asian Wall Street Journal reports our continued existence as “the only research operation in the world that focuses on Khmer Rouge atrocities.” In a turnaround paralleling that in the U.S. Senate, the Readers’ Digest praised the CGP and the Documentation Center: “Even today, project workers are uncov- ering masses of files that point to Pol Pot’s ‘bureaucracy of death.’ Moreover, Yale won a commitment from the Cambodian government to endorse initia- tives that would bring the evidence—and Khmer Rouge leaders—to a crimi- nal trial.”69 Meanwhile, the Khmer Rouge split, with one faction led by Ieng Sary launch- ing its own “Research and Documentation Center” to defend itself.70 In June 1997, the two Cambodian Prime Ministers appealed to the United Nations to establish a tribunal to judge the crimes of the Khmer Rouge period. In early 1998, the UN assembled a group of distinguished legal experts to report on this issue. They visited the Documentation Center of Cambodia in November 1998 and examined the evidence in detail. Their report, delivered to the UN Secretary-General in February 1999, recommended the establishment of an Ad Hoc International Criminal Tribunal to pass judgement on the Khmer Rouge leaders, and a truth commission to be held in Cambodia to allow the surviving victims to air their grievances more fully. Pol Pot died in his sleep in April 1998, less than a year after murdering his former Security chief, Son Sen, whom he suspected of attempting to follow Ieng Sary’s defection to the government. But the 1998 mutiny and defection of 102 Human Rights Review, April-June 2000 former Khmer Rouge deputy commander Ke Pauk and the surrender of Khieu Samphan and Nuon Chea mean that three of the last Khmer Rouge leaders at large are now capable of being apprehended. The lone, one-legged military com- mander Chhit Choeun, alias Mok, did not last long in the jungle. He was captured in March 1999 and sent before a Cambodian military court. Meanwhile, four of the five Permanent Members of the UN Security Council made strong statements in support of the establishment of an international tribunal. In this period, new attempts were made to stymie the work of the Cambo- dian Genocide Program. In May 1998, Congressman Tom Campbell (R-Cali- fornia) wrote another letter to the U.S. Secretary of State, supported by Vietnam veteran and former Reagan appointee John Parsons Wheeler III. This time the allegation was mismanagement of the CGP’s State Department grant. After a six-month inquiry, the Office of Investigations of the U.S. Inspector-General found “no evidence of wrongdoing” and closed its investigation.71 Meanwhile Campbell’s colleague, Congressman Dana Rohrabacher (R-California) and Senator Jesse Helms of North Carolina proposed a resolution (H.Res. 533) that would try Cambodian Prime Minister Hun Sen as a “war criminal”—rather than pursue what Rohrabacher called the “obsession with a handful of geriat- ric Khmer Rouge leaders.”72 When two of the geriatric genocidists, Nuon Chea and Khieu Samphan, surrendered to the Cambodian government and the U.S. Government called for them to be sent before an international tribunal, Stephen Morris made a final attempt to prevent a genocide trial. He wrote a short piece for Commen- tary criticizing the “useless Genocide Warning Center” which the U.S. Gov- ernment had established the previous month. Morris now pronounced that “genocide is extremely rare” and that “the only unambiguous example of genocide to have occurred since the Nazi Holocaust” was the 1994 Rwandan case. In Morris’s view, Cambodians did not suffer a genocide, because “the persecution of ethnic minorities was only a relatively minor aspect of policy” in the Khmer Rouge period.73 Morris’s colleague, Adam Garfinkle, writing in the Los Angeles Times, took up the case against an international tribunal for Cambodia. Firstly, he agreed that “the atrocities of Cambodia repre- sented a nearly pure political and ideological madness, not an ethnic or religious one. For this reason, the application of the term genocide to what happened in Cambodia between 1974 and 1979 is improper.” Secondly, Garfinkle added, “What business is the fate of two aged and defeated kill- ers—Khieu Samphan and Nuon Chea—to the U.S. Government? Did any American perish at the hands of these deranged thugs?” And thirdly, he con- cluded, a tribunal “is liable to dredge up no little amount of embarrassment about the American role in recent Cambodian history....[W]e were indeed there at the creation of Cambodia’s troubles. For purely prudential reasons, then, a U.S. initiative aimed at exhuming our own policy ancestor, so to speak, seems very ill-advised.”74 Kiernan 103 This close look at the failed efforts to impede the task of the CGP enables us to see firsthand how denial and suppression of information about genocide work. Both the creation of historical memory and its erasure depend upon contemporary politics as much as history itself. Bunroeun Thach, Julio Jeldres, Stephen Morris, Congressional Republicans, and the Wall Street Journal edito- rial page all considered their own political agenda more important than docu- menting the crimes of the Khmer Rouge and bringing the criminals to trial for genocide. This agenda reflected the anti-Soviet alliance between the United States and China during the later stages of the Cold War, an alliance which often brought together conservative anti-communists and Maoist radicals. We see such a combination in this case. Priorities for members of this coalition usually included disguising their own past support for the Khmer Rouge, bury- ing the history of the Vietnam War, and yet refighting it by both covering for the Khmer Rouge and fanning the flames of the MIA issue.75 Justice for the victims of the Khmer Rouge was not among their priorities. Those who sought it were often attacked from two sides. Neither Congressional Republicans nor the Wall Street Journal denied that the Cambodian genocide occurred. Rather, they took extraordinary measures to prevent or divert investigation of that genocide. A determined campaign by some of the United States’ most powerful politicians and one of the world’s most powerful newspapers failed. But it posed a larger obstacle to a historical accounting for the genocide than did scholars preferring to use their own con- cepts, or explanations beyond the wording of the Genocide Convention. Most scholars reflexively welcome further research and documentation. By contrast, political pressure is the greatest threat to honest inquiry. And the best defense is a deeper exchange of ideas, further scholarship, and more determination. Pol Pot is dead, and the Khmer Rouge army has collapsed in division and defeat. All surviving Khmer Rouge leaders have surrendered, defected, or been captured. The first trials, of Pol Pot’s military commander, Chhit Choeun (alias Mok), and of the Khmer Rouge Security Chief, Kang Khek Iev (alias Deuch), may begin soon in Phnom Penh. Charges of genocide have also been pre- pared against Nuon Chea and Khieu Samphan. In spite of all of the politics involved in the documentation of events in Cambodia, it appears that getting history right has proceeded hand in hand with the quest for justice. Notes 1. Ben Kiernan, The Samlaut Rebellion and Its Aftermath, 1967-70: The Origins of Cambodia’s Liberation Movement, Parts I and II (Monash University, Centre of Southeast Asian Stud- ies, 1975). 2. Ben Kiernan, “Why’s Kampuchea Gone to Pot?,” Nation Review, November 17, 1978. 3. “Kampuchea: A Refugee’s Account,” Journal of Contemporary Asia 9:3 (1979): 369-74. See also Ben Kiernan, “People Heng in against Pol Pot,” Nation Review, April 5, 1979; “Kampuchea: Thai Neutrality a Farce,” Nation Review, May 24, 1979; “Die Erfahrungen der Frau Hong Var in Kampuchea der Jahre 1975-1979,” Kursbuch 57 (October 1979): 122-129 104 Human Rights Review, April-June 2000 (with Chanthou Boua); “Motsattningarna inom den kommunistiska rorelsen i Kampuchea,” Kommentar 8 (1979): 4-25; “Pol Pots uppgång och fall,” Kommentar 11 (1979): 16-34; “Flyktingintervjuer om mat, arbete, halsa samre 1977-78?” Vietnam Nu 4 (1979): 10-11 (with Chanthou Boua); “Het Verhal Van Hok Sarun: Het level van een arme boer onder Pol Pot,” Vietnam Bulletin 8 (November 15, 1979): 22-24 (with Chanthou Boua); “Background to a Tragedy,” New Straits Times, December 20, 1979; “Why the Slaughter?” Nation Review, January 1980: 40; “Bureaucracy of Death: Documents from Inside Pol Pot’s Torture Ma- chine,” New Statesman, May 2, 1980: 669-676 (with C. Boua and A. Barnett); “Students Killed in Kampuchea,” Sydney Tribune, May 14, 1980. 4. Ben Kiernan, “Genocide in de Oostelijke Zone,” Vietnam Bulletin 16 (June 25, 1980): 20-22; “Wild Chickens, Farm Chickens, and Cormorants: Kampuchea’s Eastern Zone under Pol Pot,” in David Chandler and Ben Kiernan (eds.), Revolution and its Aftermath in Kampuchea (New Haven, CT: Yale University Southeast Asia Council, 1983), 136-211; “Kampuchea and Stalinism,” in Marxism in Asia, ed. C. Mackerras et al. (London: Croom Helm, 1985), 232-250; Cambodia: The Eastern Zone Massacres (Columbia University Center for the Study of Human Rights, 1986); “Kampuchea’s Ethnic Chinese Under Pol Pot,” Journal of Contem- porary Asia 16:1 (1986): 18-29; “Orphans of Genocide: The Cham Muslims of Kampuchea under Pol Pot,” Bulletin of Concerned Asian Scholars 20:4 (1988): 2-33; Chanthou Boua, David Chandler, and Ben Kiernan, eds., Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea, 1976-77 (New Haven, CT: Yale Southeast Asia Council, 1988); “The Genocide in Cambodia, 1975-1979,” Bulletin of Concerned Asian Scholars 22:2 (1990): 35-40. 5. Ben Kiernan, “Conflict in the Kampuchean Communist Movement,” Journal of Contempo- rary Asia 10:1-2 (1980): 7-74; Peasants and Politics in Kampuchea, 1942-1981 (London: Zed, 1982) (with Chanthou Boua); How Pol Pot Came To Power: A History of Communism in Kampuchea, 1930-1975 (London: Verso, 1985). 6. United Nations, AS, General Assembly, Security Council, A/53/850, S/1999/231, March 16, 1999, Annex, Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135, 16. 7. Barry Wain, “Pol Pot’s Paper Trail,” Asian Wall Street Journal, May 9-10, 1997. 8. I refer specifically to the Wall Street Journal editorial page, with its tradition of hamfisted ideological campaigning. See “The Big Lie Theory of the Country’s Biggest Newspaper,” in Extra!, the journal of Fairness and Accuracy in Reporting (FAIR), 8:5 (September/October 1995): 13-24. 9. Stephen J. Morris, “The Wrong Man to Investigate Cambodia,” Wall Street Journal, April 17, 1995; “Scholars Speak Out on Cambodian Holocaust,” Wall Street Journal, July 13, 1995. Other attacks and responses appeared on April 28, May 15 and 30, June 15, and July 13, 1995. For a description and correction of my views on the Khmer Rouge before 1978, see Kiernan, “Vietnam and the Governments and People of Kampuchea,” Bulletin of Concerned Asian Scholars 11:4 (1979): 19-25; 12:2 (1980): 72. 10. Khmer Rouge radio broadcast, August 14, 1995. U.S. CIA, Foreign Broadcast Information Service, EAS-95-157, August 15, 1995: 67. The Khmer Rouge also described me as “a protégé of the United States.” 11. “America’s Cambodian Coda,” Asian Wall Street Journal, October 29, 1996. 12. “Will Yale Deliver?” Wall Street Journal, December 19, 1996. For a different view of the CGP, see “Cambodia’s Blinding Genocide: A Website Exhumes the Faces of the Dead,” New York Times Editorial Notebook, April 21, 1997. 13. Unpublished letters to the Wall Street Journal in response to its December 19, 1996, article and editorial on the CGP can be found at its World Wide Web site (www.yale.edu/cgp), under “More Findings”: “CGP Assistance to the Search for US MIA’s.” 14. On academic suppression, see for instance Brian Martin et al., eds., Intellectual Suppres- sion: Australian Case Histories, Analysis, and Responses (Sydney: Angus and Robertson, 1986). 15. Letter to the editor, Far Eastern Economic Review (FEER), July 5, 1984. Bunroeun Thach later moved to the University of Hawaii; see his “Two Eggs in the Same Baskets,” Khmer Conscience (Winter 1991), my reply, “Bunroeun Thach’s Basket Case,” and the subsequent exchange (Spring-Summer 1991): 19-23. Thach later became Acting Director of the Preah Kiernan 105 Sihanouk Raj Academy in Phnom Penh, but his incompetence and racism created internal strife and controversy. In 1995 King Sihanouk withdrew his endorsement for the Acad- emy. Thach was dismissed and left Cambodia, and the Academy re-formed as the Center for Advanced Study. 16. Steve Sharp, “Sites of Genocide,” Good Weekend, March 29, 1997: 33-34, 37. 17. Holocaust and Genocide Studies (Winter 1997): 413-425; the quotations appear on pp. 414, 416, 420, 423, respectively. 18. For contrary evidence which Sorpong Peou deliberately ignored in his review, see The Pol Pot Regime, 67-68, 258-267, and 93, respectively; and my response, Holocaust and Genocide Studies (Summer 1998). 19. Stephen R. Heder, “Khmer Rouge Opposition to Pol Pot,” in Reflections on Cambodian Po- litical History, Australian National University, Strategic and Defence Studies Center, Working Paper no. 239, 1991: 5. 20. Keith Richburg, “Timing of Khmer Rouge Defections Suggests Possible Role by China,” Washington Post, August 24, 1996: A18. 21. Phnom Penh Post, October 18 and November 1, 1996. 22. Former Khmer Rouge official Suong Sikoeun, Phnom Penh Post, November 15-28, 1996, quoting Stephen Heder on Radio France-Internationale, August 22 and October 10, 1996. 23. Stephen R. Heder, Pol Pot and Khieu Samphan, Monash University, Centre of Southeast Asian Studies, Working Paper no. 70: 22-23. 24 . “Evidence Against K. Rouge Leaders Varies—Researcher,” News America Digital Publish- ing, Phnom Penh, January 5, 1999, wire report distributed on Camnews, January 5, 1999. 25. Gregory Stanton, personal communication. 26. Pol Pot Plans the Future, 7. 27. Khieu Samphan, speech broadcast on Phnom Penh Radio, April 15, 1977, extract in New Statesman, May 2, 1980: 675. 28. See Ieng Sary’s Regime: A Diary of the Khmer Rouge Foreign Ministry, 1976-79, full transla- tion by Phat Kosal and Ben Kiernan available on the Cambodian Genocide Program website (www.yale.edu/cgp). 29. See Michael Vickery, Cambodia 1975-1982 (Boston: South End Press, 1984); David P. Chan- dler, The Tragedy of Cambodian History (New Haven, CT: Yale University Press, 1991), 3; David Chandler, Brother Number One (Boulder, CO: Westview, 1992), 4-5, and Journal of Asian Studies 55:4 (November 1996): 1063-1064. 30. Michael Vickery, “Violence in Democratic Kampuchea,” paper distributed at a conference on State-Organized Terror, Michigan State University, November 1988: 14; and Vickery, Cambodia 1975-1982, 289-90. He correctly adds: “DK theory had multiple origins, one of which was ‘Thanhism’ and another of which was Marxism. It is not easy to say which became of greater importance in the synthesis” (p. 256). 31. Vickery, “Violence in Democratic Kampuchea,” 17. 32. Chandler, The Tragedy of Cambodian History, 1. He correctly adds: “This does nothing to alleviate the horror or their responsibility for it.” 33. For my critique of Vickery’s and Chandler’s views, see Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-1979, (New Haven, CT: Yale University Press, 1996), and my review in the Journal of Asian Studies 52:4 (November 1993): 1076-78. 34. See Serge Thion, Vérité historique ou vérité politique: affaire Faurisson (Paris: La Vieille Taupe, 1980). 35. For instance, Serge Thion, “Genocide as a Political Commodity,” in Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations, and the International Caommunity, ed. Ben Kiernan (New Haven, CT: Yale Council on Southeast Asia Studies, 1993), esp. 187: “We should first clean our own house....Who are we to give moral lessons to others?” Thion’s premise is that all Westerners are responsible for U.S. or French government war crimes, an immobilizing notion of Caucasian collective guilt. A harsher view is that he also had no expectations of his appeal for a Cambodian domestic tribunal. (For my critique of Thion’s view of the Cambodian genocide itself, see p. 17.) 36. Vickery, Cambodia 1975-1982, 287 ; Chandler, Brother Number One, 3. 106 Human Rights Review, April-June 2000 37. Julio A. Jeldres, “A Response to Michael Vickery,” distributed by Hann So, Camnews Internet discussion list, June 17, 1996. 38. See Private Eye (London), May 7 and July 16, 1993; Phnom Penh Post, November 30, 1996; and below. 39. Julio A. Jeldres, “Genocide Investigation off on the Wrong Foot,” Cambodia Daily, January 27, 1995. 40. Ben Kiernan, “Jeldres Wrong to Point Finger at Alleged ‘Pol Pot Apologists,’” Cambodia Daily, February 1, 1995. I added that in less than a year (in 1977-78) Jeldres had received three invitations to visit the Chilean consulate in Sydney, Australia. I was aware of this because Jeldres had written to me at the time (on March 14, 1978), revealing also that “the programmes were rather heavy and I did not have a minute to spare.” These three invita- tions followed Jeldres’ earlier visit to the Chilean consulate in May 1977. 41. “Jeldres vs. Kiernan,” Cambodia Daily, February 10, 1995, and Rosanna Barbero, “Jeldres Falls into His Own Trap,” Cambodia Daily, February 14, 1995. 42. Australia, Jeldres went on, “has now joined the communist countries and the so-called non-aligned ones in their attacks against Chile. We are getting sanctions because we did not want a communist government. The change of government in Chile is our problem and not Australia’s.” Julio A. Jeldres, “Insult to Chile,” Melbourne Age, January 21, 1975. For the Wall Street Journal editorial page’s defense of Pinochet, see Extra! 8:5 (September/ October 1995): 15, 19; and of mass murder in El Salvador, 14-18. 43. In a letter to the author dated July 1, 1976, Jeldres revealed that, “In 1971, I was made Honorary Member of FUNK”; copy in my possession. FUNK was the Front Uni National du Kampuchéa, a coalition of Sihanoukists and Khmer Rouge dominated by the latter. 44. Jeldres, letter to the author dated March 14, 1978; copy in my possession. 45. Cambodia Daily, February 10, 1995. 46. Far Eastern Economic Review, May 31, 1984. See my reply to Jeldres of June 21, 1984. 47. William Shawcross denied Jeldres’ association with Khmer Conscience (see Private Eye, July 2 and 16, 1993), but its editor Hann So continued to distribute Jeldres’ writings. See Jeldres, “A Response to Michael Vickery,” distributed by Hann So, Camnews discussion list, June 17, 1996, copy in my possession. 48. See, for instance, Jeldres’ articles in Cambodia Daily, February 28, 1995, and Phnom Penh Post, July 28, 1995 and September 20, 1996; also Jeldres’ statements on Radio Australia, September 13, 1995. 49. In 1996 Jeldres revealed: “I met Stephen Morris twice in Bangkok in 1985/86....I have since spoken to him three times on the phone” (Jeldres, “Response to Michael Vickery,” distrib- uted by Hann So, Camnews discussion list, June 17, 1996). 50. “Thailand’s Separate Peace in Indochina,” Asian Wall Street Journal, September 4, 1989. 51. Mary Scully, R.N.C.S., and Theanvy Kuoch, unpublished letter to the Wall Street Journal, May 19, 1995. 52. Morris argued further that the Khmer Rouge were not the problem: “The danger lies in the Vietnamese Communists’ determination to subvert such an agreement.” Stephen J. Mor- ris, “Skeletons in the Closet,” New Republic, June 4, 1990. Morris labeled critics of the UN plan, and of its inclusion of the Khmer Rouge, as proponents of “an immoral, lost cause” beholden to Hanoi. The UN plan, he asserted, “is morally right, and offers real hope of success.” It gave the Khmer Rouge, Morris wrongly predicted, an “incentive to lay down its arms,” which “will end the war.” Morris, “US Choice in Cambodia,” Boston Globe, August 7, 1990. 53. Morris had once described Cornell University’s Southeast Asia Program (America’s most distinguished such institution) as “a comfortable milieu for those fond of totalitarian dic- tatorship.” Morris attacked Heder, a former Cornell student, for his “pro-Khmer Rouge views” and for “propounding the moral virtue” of communism (Stephen J. Morris, “Ho Chi Minh, Pol Pot, and Cornell,” National Interest (Summer 1989): 60). But in 1995, Morris shamelessly recommended Heder as one of a team he suggested should have been awarded the State Department grant that I received to document the crimes of the Khmer Rouge (Asian Wall Street Journal, April 17, 1995). In one of his own attacks on my work, Heder cited an unpublished draft by Morris (Southeast Asia Research 5:2 (July 1997): 128, n. 57). Kiernan 107 Though François Ponchaud also described Heder as “un Américain pro-Khmers Rouges” (Le Point, April 25, 1998), Henri Locard has cited Heder’s work to attack mine. Locard asserted inter alia that the Khmer Rouge were “sincere idealistic leaders” and had not massacred Cambodia’s Vietnamese minority, but had expelled and “spared” them (Le Monde, April 28, 1998). See my response (Le Monde, May 14, 1998), and my article, “Le communisme racial des Khmer rouges,” Esprit 252 (May 1999): 93-127. 54. Morris, “ABC Flacks for Hanoi,” Wall Street Journal, April 26, 1990. 55. Wall Street Journal, June 6, 1990. Morris has a history of McCarthyist witch-hunting. Once affiliated with Harvard’s Russian Research Center, Morris fell out with its Associate Direc- tor, Professor Marshall Goldman, whom Morris calls an “ally” of “the pro-Hanoi left” (Wash- ington Times, September 29, 1993). Neil Sheehan, author of the Pulitzer Prize-winning work, A Bright Shining Lie: John Paul Vann and the Americans in Vietnam, is dismissed by Morris as someone who “holds a benign view of the Vietnamese Communist Party” (Wash- ington Times, September 29, 1993). John McAuliff and Eileen Blumenthal, organizers of a 1990 Cambodian dancers’ tour of the United States, were attacked by Morris for possible “criminal” activity (Boston Globe, October 14, 1990) and for holding 39 dancers as “prison- ers.” Morris’s charges were investigated and proved to be totally unfounded by both the State Department and the Immigration and Naturalization Service. McAuliff’s and Blumenthal’s alleged victims, in both Cambodia and the U.S., remain their colleagues and friends (letter to the Wall Street Journal, April 28, 1995). 56. “Scholars Speak Out on Cambodia Holocaust,” Wall Street Journal, July 13, 1995. See also Washington Post, July 8, 1995. 57. See John Kifner, “Lott, and Shadow of a Pro-White Group,” New York Times, January 14, 1999: A9; Frank Rich, “Scandals Sans Bimbos Need Not Apply,” New York Times, December 26, 1998: A27; People For the American Way, PFAW News (Winter 1999): 5. 58. Alphonse La Porta, personal communication, August 22, 1995. 59. “The Academic Killing Fields,” Washington Times, October 2, 1995. 60. See for instance, Eyal Press, “Unforgiven,” Lingua Franca (April/May 1997): 72. A letter to the Secretary of State from Rep. Martin Hoke of Ohio, backing Morris’ charges and circu- lated to the 435 members of Congress, drew only one signatory, that of Robert K. Dornan of California (June 19, 1995). 61. Copies of Wold’s and my letters can be found at the CGP’s World Wide Web site (www.yale.edu/cgp), under More Findings: “CGP Assistance to the Search for US MIA’s.” 62. Chandler e-mailed me on November 19, 1996: “Thanks for your supportive response to the MIA people, with whom I’ll be working in Phnom Penh in Jan.-Feb.” 63. Nancy DeWolf Smith, “America’s Cambodian Coda,” Asian Wall Street Journal, October 29, 1996. 64. For evidence of Melloan’s McCarthyist false charges against journalist Raymond Bonner on El Salvador, see Extra! 8:5 (September-October 1995): 15. 65. “Will Yale Deliver?” Wall Street Journal, December 19, 1996. 66. “Will Yale Deliver?” Asian Wall Street Journal, December 20, 1996. 67. For the facts, see the unpublished letters posted on the CGP’s website (www.yale.edu/ cgp). 68. The Cambodian Genocide Data Base and other materials on the Khmer Rouge can be found at www.yale.edu/cgp. 69. Peter Michelmore, “Legacy of the Killing Fields,” Reader’s Digest (May 1997): 66. See also Chanthou Boua and Ben Kiernan, “Bureaucracy of Death: Documents from Inside Pol Pot’s Torture Machine,” New Statesman, May 2, 1980. 70. See Cambodia Daily, September 10-11, 1996. 71. Letter to the author from the Inspector-General, Jacquelyn L. Williams-Bridgers, dated November 5, 1998. 72. Statement by Rep. Dana Rohrabacher (R-Ca) on the House floor, October 10, 1998, quoted in Indochina Interchange 9:1 (Winter 1999): 14. 73. Stephen J. Morris, “Clinton’s Genocide Confusion,” Commentary, January 12, 1999. 74. Adam Garfinkle, “Be Careful Which Graves We Exhume,” Los Angeles Times, January 24, 1999. 108 Human Rights Review, April-June 2000 75. H. Bruce Franklin, M.I.A. or Mythmaking in America (New York, Lawrence Hill, 1992). Stephen Morris’ claimed 1993 “find” of an alleged Russian document on U.S. POWs in Vietnam was quickly shown to be full of errors (Nayan Chanda, “Research and Destroy,” Far Eastern Economic Review, May 6, 1993), and was reported to be a CIA fake (Susan Katz Keating, Prisoners of Hope, 1994). 
work_62flh5fadrbzlmsehqzqngptiq	----	Emotions and criminal justice S U S A N N E K A R S T E D T Keele University, UK Abstract During the last decade, a process of ‘emotionalization of law’ has spread around the globe, changing the criminal justice system in many ways. Anger, disgust and shame are perceived as ‘valuable barometers of social morality’ and brought back to criminal procedures. The ‘return of emotions’ to penal law and criminal justice is linked to and illuminates the moral imagination of late modern societies. This article seeks to address two facets of the ‘return of emotions’ to criminal justice. The first part explores the changes in the public sphere and in the pattern of emotional culture in late modern societies that are responsible for the re- emotionalization of the penal realm. In the second part, problems that emerge in the criminal justice system are addressed. Bringing emotions back involves profound problems that go beyond the mere instrumental use of emotions in criminal justice, or a restricted perspective of ‘what works’. Three ‘core’ problems—and associated—questions are discussed: first, are emotional reactions towards crimes ‘natural’ or ‘primordial’ such that they should occupy a prominent place in criminal justice that has been unduly ignored? Second, and relatedly, do emotions constitute our moral principles? Finally, should institutions elicit or even require ‘authentic emotions’ from individuals? These questions are addressed within the framework of contemporary emotion theory and the consequences of this perspective for the ‘use’ of emotions in criminal justice are discussed. Key Words emotion • emotionalization • emotion theory • late modernity • penal law Theoretical Criminology © 2002 SAGE Publications London, Thousand Oaks and New Delhi. 1362–4806(200208)6:3 Vol. 6(3): 299–317; 026025 299 http:\\www.sagepublications.com Emotions and penal law Emotions pervade penal law and the criminal justice system. Offenders, victims and witnesses bring their emotions to the courtroom, criminal courts deal with crimes of passion, and their decisions can occasion public outrage and anger, or feelings of vengeance among victims. Offenders feel shame and remorse when they have transgressed the laws, and offences provoke feelings of moral disgust. At the same time, victims as well as offenders elicit our compassion and sympathy. Law has by no means been blind to this invasion of emotions into its very realm. It explicitly references and grants legitimacy to emotions through legal defences (as in crimes of passion); by establishing specific categories of behaviour like ‘hate crimes’, or by restricting the admission of evidence that might influence the emotions of jury members and judges (as, for example, in victim statements—see Posner, 2000). Legal institutions and in particular the criminal justice system are the very institutions in society that are designed to deal with the most intense emotions and emotional conflicts, with individual as well as collective emotions. The criminal courts and procedures are a prominent institutional space and institutional mechanism for emotions in society.1 The particular position of penal law and the criminal justice system in the emotional space delineated by societies has long since captured the imagination of social theorists, and figures prominently in the work of Durkheim and Elias. Both realized that penal law was deeply embedded in the emotional culture of societies, and intricately linked to the structural and institutional patterns of society. Consequently, decisive changes in the ‘morality’ (Durkheim) and ‘mentality’ (Elias) of societies are at the roots of the historical development of penal law and punishment, and criminal justice illuminates—or more technically, indicates—subterranean shifts in the emotional culture of societies. Interestingly, both of these theorists interpreted the historical change from traditional to modern society as a pathway that continuously and consistently limited and changed the role of emotions in the public sphere, and, as a result, modes of penal law and punishment. Modern societies, highly differentiated and interdependent, rely on other and more subtle mechanisms to ensure compliance with norms than the crude and simple arousal of moral and collective emotions by criminal proceedings and the (public) execution of sanctions. In jurisprudence, the history of penal law and criminal justice is in fact cast as a process that has more strictly confined and more precisely outlined the space of emotions, and limited the amount of emotionality that is admitted in courts. The conventional story of modern penal law portrays a narrowly delineated list and proper roles for emotions in the legal realm, so that emotions do not intrude into the true preserve of law: reason (Bandes, 1999a: 2). Such a juxtaposition of reason and emotion, one deeply embedded in modern thought, seems within the normative framework of Theoretical Criminology 6(3)300 jurisprudence to ignore vital facets of the actual role of emotions in law and legal procedures (see Douglas, 1993). The edifice of penal law itself is erected on a strong undercurrent of emotions: the fear of sanctions, that should instil compliance, or vengeance that is to be channelled by legal procedures (Elster, 1999). Popular wisdom as well as criminological theory have both established fear of sanctions as a cornerstone and powerful mechanism of the criminal justice system, the thing that makes it work. Far from precluding rational action, emotions may facilitate a ‘rational response’—for example, to the experience of injustice. The ‘handling of emotions’ within the criminal justice system is not a priori ‘rational’, neither in its procedural arrangements nor with regard to its final out- comes, but designed according to specific functions. Both offenders and victims react by no means in principle emotionally, but make ‘rational decisions’ when dealing with the criminal justice system: offenders try to find ways of beating the system, or victims weigh the advantages and disadvantages of invoking the law (Poletta, 2001).2 During the last decade, the secular process of restricting the space of emotions in the penal realm seems to have taken a turn towards bringing emotions back in. A process of ‘re-emotionalization of law’ or the ‘reasser- tion of emotionality in law’ (Laster and O’Malley, 1996) spread around the globe, and has changed the criminal justice system in many ways. The ‘return of emotions’ to criminal justice and penal policies has occurred in two arenas: the emotionalization of public discourse about crime and criminal justice, and the implementation of sanctions in the criminal justice system that are explicitly based on—or designed to arouse—emotions. Both developments corresponded to the changing space of emotions and the emotional culture of late modern societies, and it can be assumed that these processes have fuelled one another. This article seeks to address both these facets of the ‘return of emotions’ to criminal justice. In the first part, I argue that changes in the public sphere and emotional culture of late modern societies are responsible for the re- emotionalization of the penal realm. In the second part, I address the problems that consequently emerge in the criminal justice system. Bringing emotions back involves profound problems that go beyond the mere instrumental use of emotions in criminal justice, or a restricted perspective of ‘what works’. I will discuss three ‘core’ problems and a series of associated questions: first, are emotional reactions towards crimes ‘natural’ or ‘primordial’, such that they need not only a proper but a prominent place in criminal justice which has been unduly ignored? Second, and relatedly, do emotions constitute our moral principles? Finally, I deal with a series of questions concerning the invisibility of emotions; should institu- tions elicit or even require ‘authentic emotions’ from individuals? What is the different role and impact of emotions in criminal justice in a culture which ritualizes emotional expression or promotes individualistic, Karstedt—Emotions and criminal justice 301 authentic expression? These questions will be addressed within the frame- work of contemporary emotion theory. The ‘return of emotions’ ‘The Return of Shame’—as described in a Newsweek article in 1995—has brought back an emotion to the criminal justice system that had been dismissed as hopelessly old-fashioned during previous decades. Judges in the United States were the first to remake the courts and the criminal justice system as a public space of emotions. Offenders were ordered by courts to wear T-shirts in public that identified them as thieves. Young offenders had to apologize on their knees to their victims with members of the community present. Sexual offenders had to erect signs on their front lawn warning the public about the inhabitant; another court order sent the victims of a burglary to the house of the offender to take from it what they liked (see Massaro, 1991, 1997; Anderson, 1995; Karstedt, 1996). What is striking about these sentences, is not only the explicit use of emotion, but the way it is done, the great emphasis placed on their publicness. The thin line between shame, humiliation and stigmatization was consistently ignored, and the question of whether shame has the impact intended if imposed in such ways never asked (see Elster, 1999: 145). The effects of constant and public terrorization of norm-violators by an emotional mechanism (which the judges assumed to be shame) on the offender and/or watching specta- tors was never questioned in these cases. The revival of shame in the first instance came with ‘episodic, almost whimsical bursts of judicial, legislative or prosecutorial inspiration’ (Massaro, 1991: 1940), which were nonethe- less the first and most visible signs of the return of emotions. The influential movement of restorative justice in criminology and criminal justice is based in contrast on a theoretical concept. In his book Crime, Shame and Reintegration (1989), Braithwaite carefully developed a theoretical argument to the effect that shaming the offence, but not the offender, will reintegrate the offender into the community. In indigenous procedures of ‘conferencing’ from New Zealand and Australia he found settings in which shaming and reintegration could simultaneously work.3 In particular, he gave the victims a strong role and presence in these procedures. Their participation should make the process of shaming powerful and lasting. The conferences were designed to allow for emotional experiences and expressions of shame, remorse, guilt and anger, but also of sympathy and forgiveness. The fact that procedures of re- storative justice have become the most successful reform movement in criminal justice world-wide shows that the return of emotions has struck a cord in the criminal justice system and with the public. In instances as diverse as drunk driving, teenage shoplifting and domestic violence (as well as in the Truth and Reconciliation Commissions for perpetrators of past regimes) emotions were brought back into legal procedures and made an Theoretical Criminology 6(3)302 essential part of them. While restorative justice brought victims to centre- stage, it made it perfectly clear that justice is relational, something that establishes an emotional connection between the victim, the offender and the often neglected actors who actually impose the punishment (see Elster, 1989; Karstedt, 1993). Criminology and jurisprudence have rediscovered both individual and collective emotions (Skillen, 1980; Pratt, 2000; Freiberg, 2001). Leading figures in the economic analysis of law (Posner, 2000) have turned to emotions, and discovered that ‘the violation of norms triggers strong, emotional reactions, in the offender as well as in others’ (Elster, 1989: 100). But it comes as a striking fact that the ‘moral sentiments’ identified by most of these authors as the foundations of law are what can be termed ‘negative emotions’ (Solomon, 1990; Bandes, 1999b; Kahan, 1999; Posner, 2000). Moral disgust, revulsion and feelings of vengeance are found to be ‘valua- ble barometers of societal morality’ (Bandes, 1999a: 4), serving as a legitimate foundation for law and legal procedures. This stands in stark contrast to early theories on moral sentiments found in the writings of Adam Smith, Hume and Hutcheson. These authors embedded the moral bond in emotions of sympathy and empathy, wherein the ‘strong senti- ments of morals’ are based on ‘indignation’ as well as ‘tender-heartedness’ (see, for a discussion, Solomon, 1990, 1994; Boltanski, 1999). These developments are in line with changes in public and political discourse about crime, and take up the process of emotionalization that is characteristic of the public sphere of late modernity. The return of shame, restorative justice and the emotionalization of public discourse about crime and law, are responding to changes in wider emotional culture, and changing the moral imagination of these societies. The media engage their public in ‘distant suffering’ (Boltanski, 1999)—compassion and sympathy with victims, expressions of moral disgust towards offences and the perpetrators. An intensely emotional discourse about crime thus comes to be fuelled by the most recent and most heinous offence. Crime policies are explicitly based on the expression of collective emotions of fear and anger about crime. Politicians compete with each other in addressing the ‘emo- tional’ needs of the public, and in turn mirror these emotions back to the audience and the electorate. National and even global audiences become highly emotionalized ‘moral spectators’ in the spectacles of distant suffer- ing of victims and perpetrators. In a public sphere constituted by distant suffering, and the emotions it arouses and the moral commitment it induces, the task of criminal justice is extremely simplified: justice for victims means making offenders suffer the harshest punishment available. But as Boltanski shows, social distance and what Hirschman calls ‘benevolent disinterest’ are nonetheless required from truly moral spectators. They have to show a certain amount of impartiality and even, paradoxically, indifference if their emotions and moral commitment are to become authentic (Boltanski, 1999; Karstedt, 2000). The emotionalized discourse about crime and criminal justice in the Karstedt—Emotions and criminal justice 303 public sphere is defined by the absence of such indifference and impartial- ity. Even if we do not agree with Charles Taylor (1992) that ‘victimization’ is the defining feature of public discourse in late modernity, a certain imbalance of public interest, moral commitment and compassion towards the victim is obvious.4 In Britain, public demands for representation of the emotions of victims in the criminal justice system have been widely supported. Their sorrow, rage and anger, and feelings of vengeance need to be voiced, and ‘healed’ by the sanction imposed on the offender. This imbalance in the collective emotional mood thus easily intrudes in- to the criminal justice system, where decisions disadvantage actual offenders. The social context in which these developments take place is the increas- ingly emotionalized cultures of late modern societies (see Wouters, 1986; Vester, 1991; Barbalet, 1998; Neckel, 1999; Williams, 2001).5 Modern societies clearly stress individual autonomy and individual self-representa- tion. This includes the open display of emotions and the claim that these have to be considered as singular and authentic expressions of the auton- omy and identity of the individual. The significance of the expression of emotions corresponds to the importance of emotional experiences and fulfilment. Cross-cultural research shows that individuals are more risk- taking and thrill-seeking—both intense emotional experiences—in modern societies than in more traditional ones (Triandis, 1994; Karstedt, 2001). At the same time, individualization in the display of emotions and emotionality is juxtaposed by an extremely distant emotionality that characterizes the public sphere, the aforementioned feature of ‘distant suffering’. The media bring home the ‘spectacle’ of suffering to very diffused spectators, and elicit strong emotional reactions like sorrow, rage, anger and compassion.6 Social movements and organizations try to convert these emotions into participation in their tasks and targets. Such distant moral sentiments are no longer embedded in direct interactions between individuals or in the social space of communities. As such they lack mutuality and duration, and become more fleeting and volatile. The objects of our compassion, anger and fear change quickly, the media operating with a keen sense of the half-life of emotional arousal in the public sphere. Between the individualization of emotionality on the one hand, and distant emotionality on the other, the emotional space of groups seems to have been eroded. Joint experiences of emotions, emotions which are embedded in group rituals and the display of collective identity are not common in late modern societies. More often they take the form of deviant reactions—such as rioting or football hooliganism—when rage and anger is vented (see Dunning et al., 1986; Dunning, 1992; Frijda, 1996). The criminal law and criminal justice system respond to the bi-partite nature of emotionality in modern societies, on the one hand by opening up more space for the expression of individual emotions, on the other by increas- ingly responding to public and collective emotions. It comes as no surprise Theoretical Criminology 6(3)304 that shame has played a prominent role in this process, since this emotion establishes a link between the individual and the public sphere. Three core problems I want to explore the core problems and questions I outlined earlier using three exemplary ‘stories’. The first two of these illuminate problems and questions related to the nature of the link between emotions, law and morality. Is the criminal justice system linked to and founded on basic emotional reactions towards crimes and offenders, and are such basic emotions constitutive of morality? When I came to the UK in June 2000, I was soon confronted with a tabloid-led campaign of ‘naming and shaming’ paedophiles that followed the abduction and murder of 8-year-old Sarah Payne. The public reacted with an extreme display of emotions: strangers left flowers and teddy bears at the site where Sarah Payne’s body had been found, the service became a media spectacle of outbursts of emotions, and vengeful groups gathered before the houses of those who had been named in a newspaper campaign as paedophiles. This differed considerably from what had taken place in Germany in a very similar case only a year before. Thousands of men had (more or less) voluntarily enlisted for a genetic test (by which route the offender was ultimately found), but the public display of emotional reac- tions was not comparable to what had taken place in Britain. Emotional practices in public reactions towards crime are obviously and decisively shaped by specific emotional cultures and their institutional settings (such as modal national character, specific models, or characteristic features of the legal and political system), even if the cultures are otherwise very similar—as is the case with Britain and Germany—in their general emotional reactions (Mesquita et al., 1997; Mikula et al., 1998). This suggests that criminal justice is not based on specific basic emotions that are ‘primordial’ to its existence, but, rather, that the specific institutional and cultural pattern in which these emotions are embedded constitute and define the emotional reaction. Emotions seem to be only loosely coupled to the institutional framework which gives space to a diversity of emotions and emotional practices. The spontaneity of the public’s emotional reaction in Britain confirms more a well-established cultural pattern than a col- lective ‘natural response’. My second exemplary story explores further the problem of basic emotions and their constitutive role in criminal justice. It was written by Plato in his Socratic dialogue ‘Protagoras’ (1987) nearly 2400 years ago. At the dawn of humankind, human beings were incapable of living together, their cities torn with violence and strife. Thus, Zeus feared that humankind was in danger of utter destruction. He sent his messenger who was, Karstedt—Emotions and criminal justice 305 remarkably, the god both of merchants and thieves, down to earth with two gifts that should enable humankind successfully to establish commu- nities and live together safely and amicably. These two gifts were shame and law, and Zeus gave orders to his messenger to distribute them equally among human beings. Thus, they were equally endowed with a ‘moral sense’ which was based on a strong emotion and gave them the capacity of autonomous moral judgements and, simultaneously, with a framework of common norms and principles. It is clear that Plato posits a basic emotion—shame—as the foundation of morality and law, exactly the one that has figured prominently in the late modern return of emotions. Nonetheless, the link is not clear, and there are several types. Braithwaite adopts a position which can be described as ‘functionalist’, as for him shame as a moral sentiment has two functions in producing compliance: it inhibits people from transgressing the moral norms and laws, and it establishes the self as a moral self in one’s own and others’ eyes. According to the ‘constitutive’ position (Taylor, 1987) moral sentiments provide the motivation to comply with moral norms. Morality is based on the capacity of individuals to feel shame after having trans- gressed the norms, and accordingly the moral sentiment constitutes moral action. The ‘indicative’ link between emotions and morality establishes a relationship in which emotions are only the consequence or expression of moral engagement in one’s own actions or those of others, and of moral principles which have been accepted. Moral sentiments are neither con- stitutive nor a motivation for moral action, but are attached to a moral principle and judgement (see Nunner-Winkler, 1998). This is essentially the position of Durkheim, that strong moral sentiments indicate strong moral norms, and reinforce these norms following their violation. My final exemplary story explores a problem, one that becomes im- portant when emotions return to criminal justice in an emotional culture, concerning the authenticity of emotions: their invisibility.7 In 1517, Martin Luther started Reformation in Germany by hammering his 95 propositions to the door of the church in Wittenberg. In about one-third of them, Luther argued that no institution could and should interfere with individual repentance, and feelings of shame and guilt, let alone use or exploit them for institutional purposes. Interestingly, in some of his main arguments he contended that only God—not even always the offender—could know if these feelings were authentic and truthful (Luther, undated). What is important here is not that this was one of the many steps on the way towards individualism and modernity, but that Luther was aware of the invisibility of emotions and the problems this fact causes for any social institution that deals with them. How can we know that offenders really feel shame and remorse in restorative justice conferences? How ‘true’ are expressions of anger voiced by victims? Would we rate a restorative justice conference less successful if everyone present only pretended his/her feel- ings, or would we rely on their actions, or the final outcome? How fearful Theoretical Criminology 6(3)306 or angry are victims really, or do emotional public responses to, and demands for action against, crime (as witnessed in the campaign for ‘Sarah’s Law’) merely indicate a public caught up in media and political scripts?8 Obviously, the quest for authentic emotions in late modern societies and the fact that they are ‘invisible’ contradict each other, and even in societies where the authentic display of emotions is demanded and rewarded, people will hide many if not most of them. Significantly, shame cultures have ritualized and formalized the expression of shame, authenticity is not requested and the strength of emotions is not relevant. It is hard to discern if that has an impact on the intensity of the emotion. In the absence of such formalized emotional practices, the return of shame resulted in sentences and practices which tried to elicit an intense and authentic feeling of shame, and there were few restrictions on how that was achieved. Answers to these questions and solutions to these problems will define the role and the space of emotions in criminal justice. Contemporary psychological theory has in particular addressed the problems of basic and universal emotions, how emotions are linked to social settings and the way cultural practices influence, regulate and define emotions. Perspectives from contemporary emotion theory Though an extremely diverse field, contemporary emotion theory does not conceptualize emotions as ‘unitary, elementary entities’ but instead as ‘multi-componential phenomena’.9 Rather than assuming homogenous emotional states and a definite number of basic and universal emotions, emotion processes consisting of ‘concurrent changes in several different components’ are of central importance, thus making emotions dynamic. Such a perspective is based on the notion that human beings have a universal emotional potential, but that this is realized in actual emotional practices, and in concrete social and cultural settings. Across cultures, emotions like anger and fear, or disgust and shame therefore simultane- ously can be similar in some respects, and different in others. Expressions of emotions will vary from culture to culture even if they have a universal base. Thus, universal recognition of a particular facial expression as depicting anger, or blushing as a sign of shame, does not rule out the possibility that the counterparts of both emotions in other cultures may be different in those events that arouse them, and with regard to the actual emotional practices in which they are embedded. This applies equally to different contexts within a culture. The components of an emotion do not automatically follow from each other or from context-specific character- istics. A procedure explicitly designed to arouse shame may equally arouse feelings of humiliation and anger. Universality of emotions therefore can be Karstedt—Emotions and criminal justice 307 ‘established only for components of emotions rather than for emotions as a whole’ (Mesquita et al., 1997: 259–60). The emotion process (see Figure 1) includes the following components: an antecedent event, an emotional experience and an appraisal of the event, physiological change and change in action readiness, a specific behaviour or emotional practice, a change in cognitive functioning and beliefs and a regulatory process which determines its course. The intensity and ‘power’ of emotions (Frijda, 1996), drastic action impulses, long duration of feelings as in revenge (Frijda, 1994) or profound changes in beliefs, are caused by the interaction of these components and the strength of emotions built up during the process. Emotions result from individual concerns that are essential in the definition and appraisal of a situation. In particular, individual goals, motives and values that relate individuals with social and common con- cerns emerge when an event is appraised as harming or threatening. Concerns like prestige and self-esteem, or the sense of belonging are linked to emotions of pride and shame. Concern for identity and autonomy arouses intense feelings of anger if not treated with respect and recognition, and being shamed is a most powerful source of rage and feelings of revenge. Research on ghetto youths has established the close link between violent behaviour and the ‘search for respect’ (Bourgois, 1995). Most important here is the fact that individual concerns are derived from social values and common or even universal concerns, and thus link Figure 1 Component-process-model of emotions Source: Adapted from Frijda (1996) Theoretical Criminology 6(3)308 individual and collective emotions. Concerns arise from social and moral values of justice and fairness, which are universal to all cultures (see Schwartz, 1992, 1994; Schwartz and Sagiv, 1995). Concerns about basic moral principles are affected when these are injured. The collective nature of such concerns implies that not only individual experiences but equally experiences of others are events that are linked to emotions of anger as well as sympathy and compassion. Regulation rules are a component of the emotion process that are particularly important for the development of shared emotional practices. They control and inhibit the display of emotions, they define the proper social space for emotions, and they restrict emotional action. The role of regulation rules becomes obvious when control is lifted within the social environment: when collective expressions of anger and disgust are en- couraged, articulation of hatred is rewarded, or revenge is subtly praised (Frijda, 1996: 20). Regulation rules define the importance of emotions of victims, and the amount of display in social space, and they equally restrict the emotional space of offenders. Legal procedures provide an elaborately regulated space for emotions. What then are the implications of contemporary emotion theory for the core problems of primordial emotions, basic emotions and the link between emotions, morality and the law? One of the most important conclusions from contemporary emotion theory is that penal law and legal procedures are not built on ‘basic emotions’, but are part of the emotion process. They establish an institu- tional context and regulatory processes for a diversity of emotional compo- nents. In particular, legal procedures have the task of establishing those rules of justice and fairness that prevent additional arousal of emotions of anger and feelings of revenge, and that enhance the acceptance of the legal and moral judgment by the offender and the victim. Evidence from research on procedural justice shows that violations of these basic rules arouse those feelings, and as a consequence, decrease the readiness of offenders to accept the judgment and the moral rationale behind it (Tyler, 1990). Resulting feelings of anger and revenge might change beliefs about the fairness and legitimacy of these institutions profoundly. The most important compo- nents of fairness rules are that offenders can tell ‘their stories’, that they are not humiliated before their own peer group and that their self-esteem is not stripped from them. Cross-cultural research has provided evidence of the universality of these values as well as of their importance in legal proce- dures (Schwartz, 1992). It is highly probable that the ‘return of shame’ to the courtrooms will violate these rules, and arouse much more anger and revenge in those who are treated in this way. Contemporary emotion theory suggests that legal procedures and pun- ishment fulfil different tasks and are linked to different emotion processes. The secular changes of penal sanctions during the last centuries provide ample evidence from history that penal punishments are not linked to Karstedt—Emotions and criminal justice 309 universal and basic moral sentiments, but are embedded into the moral imagination of societies and the context of imagined communities (Ander- son, 1983). The spectacle of public executions obviously aroused thrill and excitement among the crowds, and it took some efforts during the 19th century to make it a more sombre event until they were finally banned from public view (Pratt, 2000). The theory would imply further that a diversity of emotions is involved in the process of punishment, and that different emotions restrict and balance each other. It stresses the situational pattern in which emotions are aroused, and the importance of appraisal processes. Punishment is rarely imposed by those who were victims of the offence, and the emotions involved on the side of those who punish have barely got consideration (but see Elster, 1989). Parents or teachers mostly punish children for what they did to others. The type and severity of the punishment imposed by them therefore results from the social bonds that are established and the emo- tions of love and sympathy attached to them; these function as inhibitors to extremely severe reactions. Research on the expectations and experiences of sanctions by juvenile offenders shows that parents normally do not react in a way that would endanger those bonds, but try instead to secure and confirm these bonds in their reactions to an offence committed by their children (Karstedt, 1989, 1993). Courts and juries that are embedded in communities have hesitated to give death sentences, as in the case of a young woman who had murdered her two children. As long as victims were directly involved in the punishment of offenders, practices of restorative justice prevailed (Braithwaite, 2001). In the present context of the spectacle of ‘distant suffering’ where such bonds do not exist, the lack of inhibiting emotions of sympathy and empathy seems to give way to excessive demands for punishment by ‘moral spectators’. Contemporary emotion theory clearly refutes the notion that moral principles and the edifice of law are erected on basic and universal sentiments, and that the latter constitute these principles. Instead, moral principles and axioms of justice and fairness define the concerns, and thus the events that arouse ‘moral sentiments’. Consequently, emotions like anger and disgust and shame are ‘indicators’ of our moral beliefs and convictions—they do not constitute them. ‘Once established, justice is naturally attached with a strong sentiment of morals’ (Hume, A Treatise of Human Nature, cited in Solomon, 1990: 198), but justice needs to be established first. Evidence from longitudinal research on the moral develop- ment of children shows that very young children understand moral princi- ples (right versus wrong) but do not attach moral sentiments to them. These are developed at a later stage, the process of attachment being mostly finalized at the age of 10 (Nunner-Winkler, 1998). In particular, historical change and cultural diversity of emotions of moral disgust show that these emotions are linked to antecedent moral judgments and do not constitute them, as I will discuss in the following section. Theoretical Criminology 6(3)310 Disgust, anger, shame: some cautious notes on the use of emotions in criminal justice The recent discourse about law and emotions has been dominated by three emotions—disgust, anger and shame. Though this discourse lingers between constructionist perspectives and assumptions about ‘primordial’ emotions, between a constitutive, functionalist and indicative role of emotions for law and morality, there is nonetheless a strong consensus that emotions could and should be used in the legal sphere and in lawmaking more than in the past. As noted above, legal theorists have identified disgust as a legitimate and valuable barometer of societal morality (Bandes, 1999a: 4; Kahan, 1999; Posner, 1999, 2000). Disgust should and could have a legitimate place in the legal arena. It has been argued that law should shape the cognitive contents of the emotion by leading us to feel disgust for heinous but not sufficiently punished acts like racial violence or hate crimes (Kahan, 1999; see Poletta, 2001 for a critique). In particular, the latter—more con- structionist—perspective is in line with conclusions from emotion theory. Nonetheless, it has to be stressed here that universal components in the emotion process are embedded into concrete cultural settings which define the content of moral rules, and thus the situations when disgust is elicited. Cross-cultural studies in more than 35 countries show that feelings of disgust are mostly and universally related to moral evaluations and events of violation of moral norms, in contrast to anger, which is related to experiences of injustice (Scherer, 1991, 1997). However, the fuelling of emotions of disgust has led societies to treat marginalized groups as if they were less than human, and in particular has instigated racial violence amounting to genocide (Nussbaum, 1999). In his book Ordinary Men, Browning (1992) shows how the members of a police battalion in occupied Poland voiced their disgust about the Jewish popula- tion, and how they used this emotion in their moral legitimation of the mass murder in which they participated.10 These emotions had been consistently fuelled among the population during the Nazi Regime (and before), and this process was related to laws that step-by-step deprived the Jewish population in Germany of their civil and finally human status. Most infamous in this process were the Nuremberg Laws issued in 1936, which prohibited marriages between Jews and other Germans, and barred Jews from employing German girls in their households and businesses with accompanying propaganda that Jews were paedophiles. Existing moral norms and the emotions attached to them were thus used to direct emotional reactions of disgust towards the marginalized group. Disgust is ‘brazenly and uncompromising judgmental’ (Nussbaum, 1999: 21) and therefore comes with a powerful potential for disruptive and violent consequences. As much as it might be ‘necessary . . . for perceiving and motivating opposition to cruelty’ (Nussbaum, 1999: 21), disgust is also heavily implicated in the commission of cruelty. Using it in the legal realm Karstedt—Emotions and criminal justice 311 as a ‘barometer of social morality’ deprives the law of much of its own potential of establishing justice and fairness. Anger is the emotion most clearly linked to concerns and values about justice and fair treatment (Frijda, 1996; Mesquita et al., 1997; Scherer, 1997). Notwithstanding cultural differences with regard to the intensity and the display of anger, the emotional link seems to be universal. We get angry when we and others are not treated fairly, or are humiliated, or when our social position and self-esteem are hurt. Legal procedures have a central role in society as they provide justice, both channelling such feelings and simultaneously arousing them. Anger of victims of crime might be linked to such a sense of ‘unfair’ treatment by fellow citizens. But it is much less clear how ‘anger about crime’ is aroused in those who have not been a victim and who have no personal experience of crime (Farrall, 2001). What kind of concerns and emotional experiences are involved, and what are the underlying emotion components and processes, when a majority of the population declares that they are ‘angry about crime’? Before designing ‘affective crime prevention policies’ (Freiberg, 2001) that take into account such emotional processes, we need to establish which kind of emotion and emotion process are involved, if at all. Shame, remorse and guilt are emotions most closely linked to the criminal justice system and the community it represents. Among them shame is defined as the emotion that is embedded in the bonds to groups and communities, and therefore a visible physiological reaction—blush- ing—is attached to it. Shame is a tremendously complex emotion, depend- ent on specific contexts, related to a range of other emotions, and actions (Lewis, 2000). Violations of self-esteem, humiliation and stigmatization cause shame as well as anger, varying with the context and the concerns. Obviously, legal procedures have the potential to evoke shame in offenders, but like other modern institutions they do not require particular emotional reactions.11 The return of shame might have counterproductive conse- quences when shame interferes with procedural justice and fairness, and causes anger and defiance. Legal institutions are not based on a small number of basic emotions, but on different and contradictory ones. Processes of punishment are linked to feelings of disgust as well as being embedded in emotions of sympathy. Any efforts to bring one of these to the forefront, and make it the foundation of criminal justice procedures, will necessarily ignore the range of moral sentiments which are involved in the individual as well as in the collective. The fact that emotional reactions are attached to moral norms does not necessarily imply the strategic use of emotions in, for example, defining laws against hate crimes or violations of human rights. The complex and complicated role and space of emotions within the legal system does not allow for easy solutions. Theoretical Criminology 6(3)312 Notes 1. The place of emotions is not assigned exclusively to the criminal court. Tort laws and family courts similarly deal with intense emotions. 2. Research consistently shows that victims mostly want to have their damage restored, and that they are rarely vengeful in their demands for punishment for the offender (Sessar, 1992). Victims seem to be, in particular, sensitive to the impact of legal action within their social networks. 3. See, for revisions of the theory and practice, Ahmed et al. (2001). 4. At the turn of the 18th to the 19th century, public emotions and compas- sion started to be directed towards the offender, in particular those who were imprisoned. The attack on the Bastille during the French Revolution was driven by public outrage about innocent prisoners (though they were actually quite comfortably accommodated); operas like Beethoven’s Fidelio show how public emotions were expressed in the arts. The ‘longue durée’ of compassion with the offender as a victim of society, which lasted through the 19th and 20th century, seems today to have come to a halt. 5. In terms of Elias’ theory of the civilization process, these developments are often analysed as ‘de-civilization’ (Fletcher, 1995, 1997; Pratt, 2000). Nonetheless, this perspective only grasps the regulation or de-regulation of the expression of emotions, and implies a strong bias towards processes of social control. 6. When I asked a movie director why people cry in the cinema, but not in the theatre, his answer was clear and to the point: ‘Close-ups’. 7. See Katz (1999: 316) for a more detailed discussion. 8. See Farrall (2001) for an exploration of ‘anger’ about crime. His results show that ‘anger about crime’ seems to be more an emotional reaction that people feel they ought to have than an actual emotional experience. Jones and Newburn (2002) show that notwithstanding public outrage and support for ‘Sarah’s Law’, its final failure in Britain shows it not to be a solely emotionalized public issue. 9. Ekman and Davidson (1994), and Lewis and Haviland-Jones (2000) provide excellent overviews. 10. Since Browning analysed the files of the investigation and ensuing inter- rogation that took place some 10 years later, these are memories of emotions, which nonetheless seemed to be still extremely vivid at that time. These emotions of disgust were expressed at a time when the moral code had been definitely changed, at least officially and in public. 11. We are not required to feel emotions about our work, or our superiors, or what we produce. Nonetheless, in a recent case in Britain the lack of display of shame and remorse by the offender was the reason explicitly given for a severe sanction. Karstedt—Emotions and criminal justice 313 References Ahmed, Eliza, H. Nathan, J. Braithwaite and V. Braithwaite (2001) Shame Management through Reintegration. Cambridge: Cambridge University Press. Anderson, Benedict (1983) Imagined Communities. Reflections on the Origins and Spread of Nationalism. London: Verso. Anderson, Digby (ed.) (1995) This Will Hurt. The Restoration of Virtue and Civic Order. London: The Social Affairs Unit. Bandes, Susan A. (1999a) ‘Introduction’, in S. Bandes (ed.) The Passions of Law. New York: New York University Press. Bandes, Susan (ed.) (1999b) The Passions of Law. New York: New York University Press. Barbalet, Jack M. (1998) Emotion, Social Theory and Social Structure. A Macrosociological Approach. Cambridge: Cambridge University Press. Boltanski, Luc (1999) Distant Suffering. Morality, Media and Politics. Cam- bridge: Cambridge University Press. Bourgois, Philippe (1995) In Search of Respect. Selling Crack in El Barrio. Cambridge: Cambridge University Press. Braithwaite, John (1989) Crime, Shame and Reintegration. Cambridge: Cam- bridge University Press. Braithwaite, John (2001) ‘Crime in a Convict Republic’, The Modern Law Review 64(1): 11–50. Browning, Christopher (1992) Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland. New York: HarperCollins. Douglas, Mary (1993) ‘Emotion and Culture in Theories of Justice’, Economy and Society 22(4): 501–15. Dunning, E. (1992) ‘“Culture”, “Civilization” and the Sociology of Sport’, Innovation: The European Journal of Social Sciences 5(4): 7–19. Dunning, E., P. Murphy and J. Williams (1986) ‘Spectator Violence at Football Matches: Towards a Sociological Explanation’, British Journal of Sociology 37(2): 221–44. Ekman, Paul and Richard R. Davidson (eds) (1994) The Nature of Emotion. Fundamental Questions. Oxford: Oxford University Press. Elster, Jon (1989) The Cement of Society. Cambridge: Cambridge University Press. Elster, Jon (1999) Alchemies of the Mind. Rationality and Emotions. Cam- bridge: Cambridge University Press. Farrall, Stephen (2001) ‘Anger, Fear and Victimisation: Emotional Responses without Emotions’, paper presented at joint meetings of Law and Society Association and Research Committee on the Sociology of Law (ISA), Central European University, Budapest, July. Fletcher, Jonathan (1995) ‘Towards a Theory of Decivilizing Processes’, Am- sterdams Sociologisch Tijdskrift 22(3): 283–96. Fletcher, Jonathan (1997) Violence and Civilization. An Introduction to the Work of Norbert Elias. Cambridge: Polity. Theoretical Criminology 6(3)314 Freiberg, Arie (2001) ‘Affective Versus Effective Justice. Instrumentalism and Emotionalism in Criminal Justice’, Punishment and Society 3(2): 265–78. Frijda, Nico H. (1994) ‘The Lex Talionis: On Vengeance’, in S. van Goozen, N. van de Poll and J. Sergeant (eds) Emotions: Essays in Emotion Theory, pp. 264–89. Hillsdale: Lawrence Erlbaum. Frijda, Nico H. (1996) ‘Passions: Emotion and Socially Consequential Be- havior’, in R. Kavanaugh, B. Zimmerberg and S. Fein (eds) Emotion. Interdisciplinary Perspectives, pp. 1–27. Mahwah: Lawrence Erlbaum. Jones, Trevor and Tim Newburn (2002) ‘Policy Convergence and Crime Control in the USA and UK: “Streams” of Influence and “Levels” of Impact’, Criminal Justice 2(2). Kahan, Dan M. (1999) ‘The Progressive Appropriation of Disgust’, in S. Bandes (ed.) The Passions of Law, pp. 63–79. New York: New York University Press. Karstedt, Susanne (1989) ‘Sanktionserfahrungen und Sanktionserwartungen von Jugendlichen. Eine Empirische Studie zur Integration von Individual- und Generalpraevention’, in Bundesministerium der Justiz (ed.) Jugend- rechtsreform durch die Praxis, pp. 168–96. Bonn: Bundesministerium der Justiz. Karstedt, Susanne (1993) Webs of Significance, Nets of Control. Experiences and Expectations of Sanctions by Juveniles. Bielefeld: University of Biele- feld. Karstedt, Susanne (1996) ‘Recht und Scham’, Neue Kriminalpolitik 8(4): 22–5. Karstedt, Susanne (2000) ‘Review: Distant Suffering. Morality, Media and Politics’, The Sociological Review 48(4): 670–2. Karstedt, Susanne (2001) ‘Die moralische Staerke schwacher Bindungen: In- dividualismus und Gewalt im Kulturvergleich’, Monatsschrift fuer Krimino- logie und Strafrechtsreform 84(3): 226–43. Katz, Jack (1999) How Emotions Work. Chicago, IL: University of Chicago Press. Laster, Kathy and Pat O’Malley (1996) ‘Sensitive New-Age Laws: The Reasser- tion of Emotionality in Law’, International Journal of the Sociology of Law 24(1): 21–40. Lewis, Michael (2000) ‘Self-Conscious Emotions: Embarrassement, Pride, Shame and Guilt’, in M. Lewis and Jeanette M. Haviland-Jones (eds) Handbook of Emotions, 2nd edn, pp. 623–36. New York: Guilford Press. Lewis, Michael and Jeanette M. Haviland-Jones (eds) (2000) Handbook of Emotions, 2nd edn. New York: Guilford Press. Luther, Martin (undated) Die 95 Thesen Martin Luthers. Wittenberg: Horst Bargmann Verlag fuer Kunst und Touristik. Massaro, Toni M. (1991) ‘Shame, Culture, and American Criminal Law’, Michigan Law Review 89(6): 1880–944. Massaro, Toni M. (1997) ‘The Meanings of Shame’, Psychology, Public Policy, and Law 3(4): 645–704. Karstedt—Emotions and criminal justice 315 Mesquita, Batja, Nico H. Frijda and Klaus R. Scherer (1997) ‘Culture and Emotion’, in J.W. Berry, P.R. Dasen and T.S. Saraswathi (eds) Basic Processes and Human Development. Handbook of Cross-Cultural Psychology, vol. 2, pp. 255–97. Boston, MA: Allyn & Bacon. Mikula, Gerold, Klaus R. Scherer and Ursula Athenstaedt (1998) ‘The Role of Injustice in the Elicitation of Differential Emotional Reactions’, Personality and Social Psychology Bulletin 24(7): 769–83. Neckel, Sighard (1999) ‘Blanker Neid, Blinde Wut. Sozialstruktur und Kollek- tive Gefuehle’, Leviathan 27(2): 146–65. Newsweek (1995) ‘The Return of Shame’, 6 February. Nunner-Winkler, Gertrud (1998) ‘Empathie, Scham und Schuld: Zur Mor- alischen Bedeutung von Emotionen’, in M. Grundmann (ed.) Konstruktivis- tische Sozialisationsforschung: Ansaetze und Methodische Ueberlegungen zu einer Konstruktivistischen Theorie der Sozialisation, pp. 118–43. Frankfurt: Suhrkamp. Nussbaum, Martha C. (1999) ‘“Secret Sewers of Vice”: Disgust, Bodies and the Law’, in S. Bandes (ed.) The Passions of Law, pp. 19–62. New York: New York University Press. Plato (1987) Protagoras. Greek/German, translated and commented by H.-W. Krautz. Stuttgart: Philipp Reclam jun. Poletta, Francesca (2001) ‘The Laws of Passion. Reviewing Bandes’s The Passions of Law’, Law and Society Review 35(2): 467–94. Posner, Richard A. (1999) ‘Emotion Versus Emotionalism in Law’, in S. Bandes (ed.) The Passions of Law, pp. 309–29. New York: New York University Press. Posner, Richard A. (2000) Law and the Emotions. John M. Olin Law and Economics Working Paper No. 103. Chicago, IL: The Law School, Uni- versity of Chicago. Pratt, John (2000) ‘Emotive and Ostentatious Punishment: Its Decline and Resurgence in Modern Society’, Punishment and Society 2(4): 417–41. Scherer, Klaus (1991) ‘Die Emotionalen Grundlagen des Gerechtigkeitsge- fuehls’, in D. Frey and G. Koehnken (eds) Bericht ueber den 37. Kongress der Deutschen Gesellschaft fuer Psychologie in Kiel 1990, pp. 411–20. Goettin- gen: Hogrefe. Scherer, Klaus (1997) ‘The Role of Culture in Emotion-Antecedent Appraisal’, Journal of Personality and Social Psychology 73(4): 902–22. Schwartz, Shalom H. (1992) ‘Universals in the Content and Structure of Values: Theoretical Advances and Empirical Tests in 20 Countries’, in M.P. Zanna (ed.) Advances in Experimental Psychology, vol. 25, pp. 1–65. Orlando, FL: Academic Press. Schwartz, Shalom H. (1994) ‘Are There Universals in the Structure and Contents of Human Values?’, Journal of Social Issues 50(4): 19–45. Schwartz, Shalom H. and Lilach Sagiv (1995) ‘Identifying Culture-Specifics in the Content and Structure of Values’, Journal of Cross-Cultural Psychology 26(1): 92–116. Theoretical Criminology 6(3)316 Sessar, Klaus (1992) Widergutmachen oder Strafen. Einstellungen in der Bev- oelkerung und der Justiz. Pfaffenweiler: Centaurus. Skillen, A.J. (1980) ‘How to Say Things with Walls’, Philosophy 55(5): 509–23. Solomon, Robert C. (1990) A Passion for Justice. Emotions and the Origins of the Social Contract. Reading, MA: Addison-Wesley. Solomon, Robert C. (1994) ‘Sympathy and Vengeance: The Role of the Emotions in Justice’, in S. van Goozen, N. van de Poll and J. Sergeant (eds) Emotions: Essays in Emotion Theory, pp. 291–311. Hillsdale: Lawrence Erlbaum. Taylor, Charles (1992) Multiculturalism and ‘the Politics of Recognition’. An Essay. Princeton, NJ: Princeton University Press. Taylor, Gabriele (1987) Pride, Shame, and Guilt. Oxford: Clarendon. Triandis, Harry C. (1994) ‘Major Cultural Syndromes and Emotions’, in S. Kitayama and H.R. Markus (eds) Emotion and Culture. Empirical Studies of Mutual Influence, pp. 285–306. Washington, DC: American Psychological Association. Tyler, Tom R. (1990) Why People Obey the Law. New Haven, CT: Yale University Press. Vester, Heinz-Guenter (1991) Emotion, Gesellschaft und Kultur. Grundzuege einer Soziologischen Theorie der Emotionen. Opladen: Westdeutscher Ver- lag. Williams, Simon J. (2001) Emotion and Social Theory. Corporeal Reflections on the (Ir)Rational. London: Sage. Wouters, Cas (1986) ‘Formalization and Informalization: Changing Tension Balances in Civilizing Processes’, Theory, Culture and Society 3(2): 1–18. SUSANNE KARSTEDT is Professor of Criminology in the Department of Criminology, Keele University, UK. She has researched and published on cross-cultural criminology, in particular violence and corruption, elite criminality, social capital and violence and transitional justice. She is presently directing a comparative research project on the moral economy of modern market societies, funded by the Volkswagen Foundation. Karstedt—Emotions and criminal justice 317 
work_63s7cw7mnfhhrgwgjsxh6irhri	----	PowerPoint-Präsentation Using Factorial Surveys to Study Justice Perceptions: Five Methodological Problems of Attitudinal Justice Research SFB 882 Working Paper Series ○ No. 47 ○ January 2015 DFG Research Center (SFB) 882 From Heterogeneities to Inequalities http://www.sfb882.uni-bielefeld.de/ Stefan Liebig Carsten Sauer Stefan Friedhoff Stefan Liebig, Carsten Sauer and Stefan Friedhoff Using Factorial Surveys to Study Justice Perceptions: Five Methodological Problems of Attitudinal Justice Research SFB 882 Working Paper Series, No. 47 DFG Research Center (SFB) 882 From Heterogeneities to Inequalities Research Project A6 Bielefeld, January 2015 SFB 882 Working Paper Series General Editors: Martin Diewald, Thomas Faist and Stefan Liebig ISSN 2193-9624 This publication has been funded by the German Research Foundation (DFG). SFB 882 Working Papers are refereed scholarly papers. Submissions are reviewed by peers in a two-stage SFB 882 internal and external refereeing process before a final decision on publication is made. The Working Paper Series is a forum for presenting works in progress. Readers should communicate comments on the manuscript directly to the author(s). The papers can be downloaded from the SFB 882 website http://www.sfb882.uni-bielefeld.de/ SFB 882 “From Heterogeneities to Inequalities” University of Bielefeld Faculty of Sociology PO Box 100131 D-33501 Bielefeld Germany Phone: +49-(0)521-106-4942 or +49-(0)521-106-4613 Email: office.sfb882@uni-bielefeld.de Web: http://www.sfb882.uni-bielefeld.de/ DFG Research Center (SFB) “From Heterogeneities to Inequalities” Whether fat or thin, male or female, young or old – people are different. Alongside their physi- cal features, they also differ in terms of nationality and ethnicity; in their cultural preferences, lifestyles, attitudes, orientations, and philosophies; in their competencies, qualifications, and traits; and in their professions. But how do such heterogeneities lead to social inequalities? What are the social mechanisms that underlie this process? These are the questions pursued by the DFG Research Center (Sonderforschungsbereich (SFB)) “From Heterogeneities to Inequalities” at Bielefeld University, which was approved by the German Research Foundation (DFG) as “SFB 882” on May 25, 2011. In the social sciences, research on inequality is dispersed across different research fields such as education, the labor market, equality, migration, health, or gender. One goal of the SFB is to integrate these fields, searching for common mechanisms in the emergence of inequality that can be compiled into a typology. More than fifty senior and junior researchers and the Bielefeld University Library are involved in the SFB. Along with sociologists, it brings together scholars from the Bielefeld University faculties of Business Administration and Economics, Educational Science, Health Science, and Law, as well as from the German Institute for Economic Research (DIW) in Berlin and the University of Erlangen-Nuremberg. In addition to carrying out research, the SFB is concerned to nurture new academic talent, and therefore provides doctoral training in its own integrated Research Training Group. A data infrastructure project has also been launched to archive, prepare, and disseminate the data gathered. Research Project A6 “The Legitimation of Inequalities – Structural Conditions of Justice Attitudes over the Life-span” This project investigates (a) the conditions under which inequalities are perceived as problems of justice and (b) how embedment in different social contexts influences the formation of attitudes to justice across the life course. We assume that individuals evaluate inequalities in terms of whether they consider them just, and that they hold particular attitudes toward justice because, and as long as, these help them to attain their fundamental goals and to solve, especially, the problems that arise through cooperation with other people (cooperative relations). As a result, attitudes on justice are not viewed either as rigidly stable orientations across the life span or as “Sunday best beliefs” i.e. short-lived opinions that are adjusted continuously to fit situational interests. Instead, they are regarded as being shaped by the opportunities for learning and making comparisons in different phases of the life course and different social contexts. The goal of the project is to use longitudinal survey data to explain why individuals have particular notions of justice. The key aspect is taken to be changes in the social context – particularly households, social networks, or workplaces – in which individuals are embedded across their life course. This is because social contexts offer opportunities to make social comparisons and engage in social learning, processes that are decisive in the formation of particular attitudes to justice. The project will test this empirically by setting up a special longitudinal panel in which the same individuals will be interviewed three times over an 11- year period. The results of the project will permit conclusions to be drawn on the consequences of changes in a society's social and economic structure for its members' ideas about justice. The project therefore supplements the analysis of the mechanisms that produce inequality, which is the focus of SFB 882 as a whole, by looking at subjective evaluations, and it complements that focus by addressing the mechanisms of attitude formation. Research goals (1) Analysis of the conditions in which justice is used as a criterion for evaluating inequalities. (2) Explanation of attitudes toward justice as the outcome of comparison and learning processes mediated by the social context. (3) Longitudinal observation of the individual development of attitudes to justice over the life course. Research design (1) Continuation and expansion of the longitudinal survey of evaluations of justice conducted by the German Socio-Economic Panel Study (SOEP). (2) Commencement of an independent longitudinal panel with ties to the process-generated individual data of the German Institute for Employment Research (IAB) and information on companies and households (the plan is to carry out three survey waves over an 11-year period). The Authors Stefan Liebig is Professor of Sociology with a special focus on Social Inequality and Social Stratification at the Faculty of Sociology, Bielefeld University, and Principal Investigator of the Collaborative Research Centre (SFB) 882 research project A6, “The Legitimation of Inequalities – Structural Conditions of Justice Attitudes over the Life-span”. His research interests are empirical justice research, organizations and social inequality, and methods of empirical research. Recent publications are “The justice of earnings in dual-earner households”, in: Research in Social Stratification and Mobility 30 (2012): 219-232 (with C. Sauer and J. Schupp); “Gerechtigkeit”, in: S. Mau & N. M. Schöneck (Eds.), Handwörterbuch zur Gesellschaft Deutschlands (2013), Springer VS: 286-299 (with C. Sauer and P. Valet); “The Application of Factorial Surveys in General Population Samples: The Effects of Respondent Age and Education on Response Times and Response Consistency”, in: Survey Research Methods 5 (2011): 89-102 (with C. Sauer, K. Auspurg and T. Hinz). Contact: stefan.liebig@uni-bielefeld.de Carsten Sauer is a postdoctoral research fellow in the SFB 882, project A6 at Bielefeld University. His research interests include the explanation of behavior, social inequality and justice and quantitative research methods (especially factorial surveys). Among his recent publications are: “The Factorial Survey as a Method for Measuring Sensitive Issues”, in: U. Engel, B. Jann, P. Lynn, A. Scherpenzeel, P. Sturgis, (Eds.), Improving Survey Methods. Lessons from recent Research (2014), Routledge: 137-149 (with K. Auspurg, T. Hinz, S. Liebig); “Incentives and Inhibitors of Abusing Academic Positions: Analysing University Students' Decisions about Bribing Academic Staff”, in: European Sociological Review 30 (2014): 230-241 (with P. Graeff, S. Satter, G. Mehlkop); “Less is Sometimes More: Consequences of Overpayment on Job Satisfaction and Absenteeism”, in: Social Justice Research 26 (2013): 132-150 (with P. Valet); “When Decisions Should Be Shared: A Study of Social Norms in Medical Decision Making Using a Factorial Survey Approach”, in: Medical Decision Making 33 (2013): 37-47 (with M. Müller-Engelmann et al.). Contact: carsten.sauer@uni-bielefeld.de Stefan Friedhoff is a member of the SFB 882 project “Information and Data Infrastructure” (INF) and PhD candidate at the Bielefeld Graduate School in History and Sociology (BGHS). In the INF project he assists researchers with problems of everyday documentation and improves documentation practices. His research interests focus on data management, survey methodology, social inequalities and factorial survey research. Contact: stefan.friedhoff@uni-bielefeld.de Using Factorial Surveys to Study Justice Perceptions: Five Methodological Problems of Attitudinal Justice Research Stefan Liebig, Carsten Sauer, and Stefan Friedhoff1 Summary: This article provides an overview of how factorial surveys have been used in justice research in the past. It addresses the question of why this method is particularly useful to survey attitudes toward justice. This question is discussed with reference to five problems of empirical justice research. For each of these problems, findings are presented from recent justice research that has used the factorial survey method, with a focus on assessing the allocation and distribution of goods (earnings/income, transfer payments, pensions) and burdens (taxes). The paper concludes with a discussion of future developments and possible applications in this research field. Introduction For a long time, the question of what is just and what is not was regarded as a purely normative problem and, thus, as a subject of philosophy, legal theory, or theology. The aim of this normative justice research is to provide answers to Kant’s question “What ought I to do?”, and to do so has to identify principles or rules of justice that ensure that, from a moral point of view, the allocation and distribution of goods and burdens can be regarded as just (e.g., Rawls, 1975). Starting around the middle of the last century, a descriptive, or empirical, line of research on justice began to establish itself, first in psychology, and later in the social sciences and in economics (Adams, 1965; Deutsch, 1985; Jasso, 1978; Runciman, 1966; Törnblom, 1992). This steadily growing line of research examines what individuals and societies consider to be a just distribution of goods and burdens; why a state of justice is regarded as something worth achieving; and what consequences can be observed in a society when something is perceived as just or injust. Most of this empirical research has focused on the study of attitudes toward procedural and distributive justice (cf. Liebig & Sauer, 2013, 2015). While questions of procedural justice involve an evaluation of decision-making processes regarding the allocation and distribution of goods or burdens (Deutsch, 1985; Jasso, 1980; Törnblom, 1992; Wegener, 1987), questions of distributive justice involve an evaluation of the outcomes of such processes. The main finding of this research is that attitudes toward or beliefs about justice, as well as evaluations of concrete outcomes, not only depend on individual characteristics—and thus do not have the status of personal traits—but are affected by the social situation in which an individual is embedded and the type of resource that is allocated. A specific allocation amount can therefore only be assessed on the basis of contextual information (Hegtvedt, 2006). This is why judgments concerning distributive justice are always complex, context- dependent, and context-related attitudes. At least five methodological problems result from this complexity which are partially known from other areas of attitude research but are particularly important in justice research. First, the high degree of context dependency of judgments implies that a lack of contextualization can lead to systematically biased measurements of attitudes toward justice, particularly in survey-based justice research, but also in experimental behavioral economics, where researchers deduce individual attitudes toward justice from behavior in very abstract and artificial distribution situations. Second, since attitudes toward justice appear to be determined by a variety of very different factors, the actual importance and, especially, the relative importance of these factors must be determined (for example, to draw conclusions about their role in the generation of distributive injustices). This leads 1 This paper is an outcome of the research project “The Legitimation of Inequalities – Structural Conditions of Justice Attitudes over the Lifespan,” which is funded by the German Research Foundation (DFG) within the Collaborative Research Center 882 “From Heterogeneities to Inequalities” at Bielefeld University, Germany. 1 us to a third problem: in order to investigate the causes and influencing factors of individual perceptions of justice, in some fields of justice research, experimental studies are conducted in the laboratory, with only a certain group of individuals—usually students—participating (Henrich et al., 2010). As a result, the findings are often based on the study of convenience samples which include students and in which the external validity is usually not sufficiently clarified. This is particularly problematic in justice research because there is evidence that individual attitudes toward justice are influenced by sociostructural position and previous individual experiences, among other things. The fourth problem, the problem of social-desirability bias in response behavior (Paulhus, 1984), is particularly important when measuring attitudes toward justice because attitudes are sometimes not measured appropriately, so that the findings obtained lead to erroneous conclusions. The fifth problem is the problem of measuring and identifying causal relationships; this problem is particularly relevant when conducting research on the causes of certain attitudes, whether toward justice or other factors. In this article, we will show how factorial surveys can be used, if not to overcome, then at least to reduce, the risk and impact of these five problems in empirical research on justice. We will review studies that analyze attitudes toward distributive justice and report problems in relation to the illustrated key results.2 The article concludes with a discussion of future developments and possible applications. Factorial Surveys in Empirical Justice Research Factorial surveys have been used in empirical justice research for over 30 years to determine what ideas exist about the fair allocation of goods or burdens (e.g., Beck & Opp, 2001; Jasso, 2006; Rossi & Anderson, 1982; Wallander, 2009). Generally speaking, respondents in these studies are asked to evaluate short descriptions (“vignettes”) of recipients (e.g., employees, households), in which the individual or situational characteristics (“dimensions”) used to describe the case are varied systematically in their levels. Since these levels are simultaneously changed among vignettes, the procedure is also referred to as “multifactorial.” Figure 1 shows a vignette that is used to measure attitudes toward the distributive justice of income. The description consists of five dimensions, four of which are characteristics describing the individual (age, gender, vocational training, occupation), with the fifth dimension indicating the individual’s gross earnings. The specific values of these characteristics are varied from vignette to vignette. Respondents are then asked to rate the justice of the gross earnings presented on an 11-point scale. In the analysis, these ratings are treated as dependent variables, and the five dimensions are treated as independent variables. By systematically varying these dimensions, their importance for justice evaluations can be estimated through statistical analysis and conclusions about justice can be drawn, with questions that can be addressed in this way including: Should earnings increase with age? Should women receive the same income as men? Should individuals with vocational training earn more than individuals without training? 2 The following illustration is based on a literature review that involved two steps. The first step was to search for articles in Google Scholar and the Social Science Citation Index which use any combination of the German and English keywords “justice” or “fairness” [“Gerechtigkeit”] and “factorial survey” [“faktorieller Survey”] or “vignette(s)” [“Vignette(n)”]. Following the procedure described by Wallander (2009), the results were then complemented by publications citing the article “Who Should Get What? Fairness Judgments of the Distribution of Earnings” by Alves and Rossi (1978), because it is one of the first and most frequently cited articles in justice research that use factorial surveys. 19 articles in German and English were identified in this way. An overview of the studies used here can be found in the Appendix. 2 Figure 1. Example vignette with five dimensions A 60-year-old woman with occupational training works as a social-worker. Her gross monthly earnings are €2,500 (before taxes and transfers). In your opinion, are her monthly gross earnings just, unjustly high, or unjustly low? Unjustly low Just Unjustly high -5 -4 -3 -2 -1 0 +1 +2 +3 +4 +5            Source: Sauer et al. (2011) In the past, factorial surveys have been used in justice research primarily to examine attitudes toward the allocation of monetary rewards (individual earnings, household income, welfare-state transfer payments) or burdens (taxes). Compared with the use of vignettes in other fields of research (e.g., Wallander, 2009), the proportion of factorial surveys used in population surveys is larger in justice research, and there are also more international comparative studies (Auspurg et al., 2013; Hysom & Fişek, 2011; Jasso & Meyersson Milgrom, 2008; Schrenker, 2009). Recent applications of factorial surveys in justice research show two methodological peculiarities. (1) As regards the decisive advantage of factorial surveys, which is to provide the respondents with contextualizing information, studies differ in the number of dimensions (information content) and vignettes per respondent. The numbers of dimensions used per vignette range from three (Jann, 2008) to ten (Auspurg et al., 2013; Gatskova, 2013; Sauer et al., 2009). The number of vignettes to be evaluated varies much more. This is due to a methodological peculiarity. Especially in the early days of using factorial surveys, a very large number of vignettes were presented; the studies of Jasso, Rossi, and their colleagues used between 40 and 60 vignettes per respondent (Alves & Rossi, 1978; Jasso, 1994; Jasso & Meyersson Milgrom, 2008; Jasso & Rossi, 1977; Jasso & Webster, 1997). They did so because they wanted to obtain as many data points as possible for each subject to improve the estimation of individual judgment behavior (within-analysis) and to make comparisons among respondents based on their judgments (between-analysis). This procedure involves a two-step process. In the first step, individual regressions are estimated to measure the influence of the dimensions on the justice judgments of a single respondent (within-estimation). In the second step, these coefficients are used as individual traits to analyze correlations or differences among groups of respondents or other attitude measurements (between-estimation). (2) The second methodological peculiarity has to do with the use of open and magnitude response scales, which are used to avoid direct measurement. When asked the direct question, respondents state what they think would be a just reward the individual described in the vignette should receive (Hysom & Fişek, 2011; Shepelak & Alwin, 1986). When the respondents are asked the indirect question, the justice evaluation (amount of injustice) is measured, but the respondents are not asked to specify the reward (e.g., earnings). The actual amount is determined ex-post using a two-step estimation procedure. A classic application is the determination of the just amount of earnings (for details, see Jasso, 2006; Jasso & Meyersson Milgrom, 2008; Jasso & Wegener, 1997). This procedure is based on the theory of Jasso (1978, 2006), according to which the justice evaluation J is the product of the logarithmic ratio of the actual earnings (A) and the just earnings (C), as well as an individual constant (θ) (Jiv = θi × ln (Av / Civ), with i = judging individual and v = vignette). Both 3 C and θ are unknown and must be estimated. To calculate the just reward C, it is necessary to transform Jasso’s equation (Civ = Av × exp (–Jiv / θi)) and estimate θ as the slope coefficient of individual regression equations.3 The estimation is done by regressing individual-specific bivariate regressions of all judgments of an individual (J) on the actual earnings given in the vignettes. The estimated slope coefficient then provides the individual constant θ, which is used to calculate the just earnings for each vignette. This procedure makes it possible to express the attitudes toward justice in the reward units (see Figure 2). It is obvious that in this procedure at least an interval scale level of the justice judgment J is needed. For this reason in particular, open scales or magnitude scales are used (Jasso & Meyersson Milgrom, 2008; Jasso & Webster, 1999; Liebig & Mau, 2002, 2005) in addition to conventional 9- or 11-point rating scales (Alves & Rossi, 1978; Jasso, 1994; Jasso & Rossi, 1977; Jasso & Webster, 1997; Schrenker, 2009).4 The rationale for using these indirect measures of attitudes toward justice is that certain groups of respondents might find it too difficult to state specific rewards or burdens. More important, respondents do not express their own perceptions when asked about just rewards, because they are too heavily influenced by the given rewards (Jasso, 2006; for arguments to the contrary, see Markovsky & Eriksson, 2012). However, this method has been critically discussed (Auspurg & Hinz 2015), and the use of open or magnitude scales has been considered to be particularly problematic (Sauer et al., 2009, 2014). But how might factorial surveys be used to reduce the methodological problems of empirical research on justice? In the following, we will provide a detailed description of the five problems mentioned and explain how factorial surveys might be used to reduce these problems in justice research. Issues of Empirical Justice Research and Findings from Studies Involving Factorial Surveys Contextual Information: Complexity of Distribution Processes The first problem of analytical justice attitude research is rooted in the very subject itself. In most cases, the question of whether or not the allocation of certain rewards or burdens is just can be answered only on the basis of contextual information (Hegtvedt, 2006). This is because the actual allocation of rewards and burdens itself depends on a combination of individual and structural characteristics. The amount of actual earnings is determined by various factors, including individual performance, human capital, age, gender, occupation, industrial sector, and company size. The questions that arise when the justice of earnings is assessed are which of these factors the respondents think determine the amount of fair earnings and what relative importance each dimension has. Previous research shows that individuals judge allocation and distribution results on the basis of very general rules or principles of distribution, which also specify which dimensions the respondents will consider to what extent. The most important principles besides the principle of equality are the proportionality or equity principle (rewards should be proportional to an individual’s current expenses and efforts), the principle of need (individual requirements in terms of minimum social standards and non-self-inflicted disadvantages should be considered in the allocation), and the principle of entitlement (an individual’s position and status in the hierarchical structure of a society or a group should be taken into consideration) (Liebig & Sauer, 2013, 2015). The respondents’ decision as to which of these principles should guide the allocation or distribution process depends on the situation and on the type of goods or burdens to be distributed (e.g., income, 3 The equation is solved using the following conversion and Slutsky’s theorem: J = θ × ln A – θ × ln C = a + θ × ln A (cf. Jasso, 2007; Jasso & Wegener, 1997). 4 When the magnitude scale is used, respondents are asked to express the degree of their feeling of injustice by giving a random number or by drawing a line. To ensure the comparability of judgments, the respondents are first presented with a vignette (anchor vignette), which is similar for all respondents. 4 medical assistance). In making such decisions, respondents might also use a combination of any of these principles. It is important to note that there is no way any of these principles could be “simply” applied, because it is impossible to make generalized statements about what “individual performance” actually is, which of the criteria required are legitimate, or which status characteristics of an individual should be rewarded and with what amounts. This more precise determination of the conditions and their links to specific reward amounts in turn depends on the context, and is the result, of social-comparison processes. Only by comparing themselves with other individuals or groups (individual reference individuals or “generalized others”) can respondents develop concrete ideas about what might constitute a just reward or burden. Thus, information on the recipients and the situational conditions is needed to decide which principles of justice should apply in a given case and what reward or burden is just or unjust. Survey-based justice research in particular relies primarily on item-based measurement instruments, which provide respondents with little contextual information and measure attitudes toward justice on a very general and abstract level.5 The aim of these measurements is to identify cross-context preferences or general normative orientations.6 Item-based measurements are useful, generally speaking, but can also lead to a systematic distortion of response behavior. Since item-based instruments are designed to evoke a response behavior that favors equal distributions of goods and burdens, their exclusive use could lead to an overestimation of equality preferences. Studies on empirical justice research show that respondents always rely on “equality heuristics” if there is too little information about distributive decisions. A similar behavior is observed when the respondents want to or can invest only little cognitive capacity in processing the instruments used because the instruments are too abstract, too difficult to comprehend, or not concise enough (Keller et al., 2013; Messick, 1993; Roch et al., 2000). The use of the equality principle can be understood as a “rule of thumb or an intuitive rule of sharing” (Keller et al., 2013, p. 172) and as what might be called the “default” attitude in resolving allocation and distribution conflicts in “ambiguous, novel, or complex social situations” (Messick, 1993, p. 28). The advantage is that when using the equality principle, no information is needed about the recipients of the allocation or distribution or about any other situational parameters. Nor are there any complex cognitive processes required of the respondents to be able to make a more differentiated allocation and distribution (Messick, 1993). By exclusively using item-based questions it is possible to favor this use of a simple equality-oriented heuristic. Factorial surveys allow researchers to avoid this problem. The first reason is that it requires respondents to make greater cognitive efforts than do item-based attitude measurements (Sauer et al., 2009, 2011). The vignettes presented have a more complex structure (several dimensions), and in most cases respondents are asked to evaluate several vignettes. Second, in a factorial survey respondents are provided with more information. The contexts of the evaluation can be compared in a way that is more appropriate to the subject; for example, when asked to evaluate the justice of earnings, individual factors such as performance and job experience may be complemented with contextual dimensions such as the economic situation of the company or the situation of the family (Sauer et al., 2009, 2011). In addition, it is likely that the use of realistic vignettes helps the respondents to imagine the situation better and thus enables them to make appropriate decisions that go beyond simple heuristics. For the measurement of income inequality this means that measurements that use factorial surveys should show significantly lower “inequality aversion” compared with classic item-based questions. This is suggested by the results of a population survey conducted in Germany in 2009 (Sauer et al., 2011). Of the 1,600 respondents recruited for an item- 5 Experimental behavioral economics operates in a similar way when distribution behavior in highly artificial game situations is used to draw conclusions about the justice preferences of participants, most of whom are students (cf. Fehr & Schmidt, 2006). 6 One example is an item respondents in the German General Social Survey (ALLBUS) are asked about on a regular basis to determine whether they agree with the statement “Income inequality in Germany is too high” (ALLBUS 2010, Item 6a), in order to draw conclusions about preferences of income inequalities in society. 5 based measurement, 91 percent stated that income inequality in Germany was “too high” or “far too high.” From these responses a clear equality preference can be derived. The same questionnaire also asked respondents to evaluate the justice of earnings of vignette persons. As Figure 2 shows, respondents clearly differentiated between just earnings depending on the occupation of the vignette individuals (Sauer et al., 2009), thus creating inequality with their judgments. Figure 2. Earnings rated as just and actual earnings by occupation of vignette individuals in Germany in 2009 Source: Attitudes toward justice from Sauer et al. (2009), actual earnings by occupation (mean of full-time-employed in a given occupation), calculated on the basis of SOEP 2009 The triangles connected by the continuous line in Figure 2 show the just earnings for each of the ten occupations (mean values), which were estimated on the basis of the respondents’ judgments, while the squares connected by the dashed line show the actual earnings of each of the occupations as given in the data set of the German Socio-Economic Panel 2009 (averages of full-time employees in each occupation [ISCO four-digit code]). The two lines run fairly parallel, which suggests that the respondents’ judgments were not arbitrary and that the estimations of just earnings based on the justice judgments provide meaningful values. On the whole, the respondents would slightly increase the earnings of individuals in lower-status occupations (manufacturing laborers, hairdressers) and lower the earnings of high-status occupations (medical doctors). However, the existing variation of earnings across occupations is still considered to be just. A uniform distribution of earnings—as could be derived as favored based on the item-based measurement—is not considered to be just. In addition, there is no statistically significant correlation between the inequality preference expressed in the vignette judgments and the preference for smaller inequalities in the item-based measurement. This means that if more detailed information about the potential recipients and their situation is available, the assessment of what constitutes just earnings is more differentiated, and that if this and other contextual information is not available, respondents use the “rule of thumb” 0 1000 2000 3000 4000 5000 6000 7000 8000 Just gross earnings Actual gross earnings 6 appropriate to the given situation and regard greater equality as just. This pattern is consistent with the findings on the use of the “equality heuristics” (see Messick, 1993; Roch et al., 2000). The potential of this method to allow for differentiated judgments of justice by using appropriate “contextualizations” has also been shown by two studies that do not focus explicitly on earnings. The first of these studies, Schaffer (1990), examined what criteria respondents used to determine what they thought would be fair child support payments the parent not living in the same household as their child should make. The results clearly showed a tendency toward justice judgments based on actual needs, with respondents stating that child support payments should be proportional to the income of the persons liable for child support. In other words, the higher the income of the parent liable for child support, the higher the child support payment should be to be considered just. The second study, Liebig and Mau (2002), focused on minimum social security and examined the attitudes toward a minimum income provided by the state. Their finding was that the respondents were generally in favor of a minimum level of social security that would ensure the recipients’ existence, which is consistent with the results of item-based measurements. However, their results also show that respondents think that the actual amount of welfare benefits should depend on whether the individuals described in the vignettes had put themselves in a state of welfare dependency. The general consensus what that those who are in financial distress through their own fault should receive less welfare state support than those who were in financial distress through no fault of their own. Thus, the preference for a uniform distribution is lower if additional information is provided on the potential recipients of an allocation. The above discussion suggests that factorial surveys are more useful in measuring attitudes toward justice that are not the result of routinized behavior in the form of applying an equality heuristic. Relative Importance: The Different Relevance of Individual Allocation Criteria The allocation criteria that underlie factual distribution processes often have different and, more important, competing normative implications. Normative conflicts therefore arise only as a result of the relative weighting of individual criteria, such as when considering the question of whether individuals’ formal education should be given more weight in determining their income than their seniority, their experience, or their actual job performance. Traditional item-based survey methods cannot clearly distinguish between individual determinants. Factorial surveys can make this distinction because the multifactorial design requires respondents to make “trade-offs” among various different dimensions and thus to weigh up individual characteristics against one another. This makes it possible to determine the influence of each named and varied attribute on the respondents’ response or judgment, as well as the relative importance of individual vignette dimensions. This may be done by considering standardized coefficients (Shepelak & Alwin, 1986) or by decomposing into the respective semi-partial explanation of variance (cf. Auspurg et al., 2013; Auspurg & Jäckle, 2012; Gatskova, 2013). Most of the existing research has investigated the relative importance of individual allocation criteria for individual incomes and household incomes, with a focus on two central questions. The first question is: Which of the individual characteristics of the income earners described in the vignettes and which of the situational factors are relevant for the justice evaluation? Here, the individual and situational characteristics are regarded as indicators of the general principles of justice described. The other central question is: Is it possible to identify differences among societies or among social groups? Generally speaking, the results of this research show that respondents actually weigh up several individual and situational factors against one another, and that they give the greatest relative weight to vignette dimensions that are directly related to employment (e.g., 7 Auspurg et al., 2013).7 Key factors in the decision making include occupation, human capital (education and experience), and individual performance: respondents believe that it would be just if the vignette individuals in more prestigious occupations who have more experience, a higher level of education, and above-average performance in the workplace earned more than others (Sauer et al., 2009). Thus, two distribution principles dominate in justice evaluations of earnings: first, the principle of proportionality as described in equity theory (Adams, 1965), because individual performance is seen as a central reward principle. Justice of earnings is constituted not by absolute equality but by proportional equality, that is, by the principle of equal pay for equal performance and unequal pay for unequal performance. Thus, contrary to the findings obtained by using the theoretical models advocated in behavioral economics (Fehr & Schmidt, 2006), individuals do not show “inequality aversion” when it comes to earnings; rather, it would be more accurate to say that they show “inequity aversion,” meaning that injustice is experienced, and is to be avoided, when individuals who have equal expenses achieve unequal outcomes or when individuals achieve equal outcomes with unequal expenses.8 However, because similar weight is given to the allocation category “occupation,” or prestige of the occupation, it is expected that for earnings to be considered just, they must also reflect differences in status. The results for Germany are shown in Figure 2; respondents make a clear differentiation of earnings by occupation (with factors such as level of education, performance, and experience used as control variables). A key observation in this respect is that respondents clearly expect that individuals in occupations with a higher social status and greater prestige should be entitled to a higher income, regardless of their current expenses and benefits.9 Thus, respondents believe that the allocation of income should be based on the principle of entitlement as well as on the proportionality principle. This finding is consistent with the results of a study Hermkens and Boerman (1989) conducted in the Netherlands which found that occupational prestige is the most important determinant for the level of just household income. 7 To compare the weight of individual dimensions in order to determine their relative weight, beta-coefficients (Alves & Rossi, 1978; Hermkens & Boerman, 1989), semi-partial explained variance (Auspurg et al., 2013; Gatskova, 2013), and t-values are considered (Liebig et al., 2010). 8 Incidentally, this inequity aversion has also been observed in non-human primates (see Brosnan, 2006). 9 The term “education” does not allow for a clear distinction because it can be understood not only as an indicator of individual productivity (proportionality principle) but also as a status characteristic (principle of entitlement). 8 Figure 3. A comparison of the relative importance of dimensions in vignette-based and item-based measurements Source: Liebig et al. (2010). The relative weight of the dimensions was measured using t-values. The fact that the studies considered here found that “status criteria” play an equally important role in the just allocation of income as “performance criteria” certainly also has to do with the differentiated form of the attitude measurement used in factorial surveys. If we compare the ranking of the different income criteria obtained directly using item-based survey with the ranking obtained indirectly using a factorial survey, the survey conducted in Germany in 2009 reveals significant differences. While the item-based survey leads to the conclusion that the proportionality principle is the most important criterion, factorial surveys show that the principle of entitlement (occupation) is the most important principle. The results also indicate that individual need is another important allocation criterion besides the two central principles of proportionality and entitlement: the number of children to be supported or marital status also constitute legitimate claims. Respondents think that individuals should be allocated a higher income if they have more family responsibilities, if they are the sole breadwinner, or if they have to support children. The above clearly shows that the evaluation of earnings is based on a combination and weighting of different principles of justice. This was the key assumption of the model proposed by Leventhal (1980): the justice of the earnings is evaluated on the basis of a combination of actual expenses (equity principle), position in the status and/or prestige structure of a society (principle of entitlement), and individual need (needs principle), with the last-mentioned principle given the least weight of all. The relative importance of the principles varies among different societies and among different social groups. This is not necessarily true of the role of the proportionality principle in the allocation of earnings (Auspurg et al., 2013; Cohn et al., 2000; Hysom & Fişek, 2011; Jasso & Meyersson Milgrom, 2008). A comparative study of Eastern European countries (Bulgaria, Hungary, Poland, Russia) and Western countries (France, Spain, United States) conducted by Cohn and colleagues (2000) found a clear preference for the equity principle in all of the countries under study. This finding is consistent with the results of a study of American and Turkish students 9 conducted by Hysom and Fişek (2011) and with those of a comparative study conducted by Jasso and Meyersson Milgrom (2008) in the United States and Sweden. Both of these studies showed that the preference for the equity principle was more pronounced among American respondents, whereas the Swedish respondents gave more weight to operational context conditions (industry, capital, location) in the allocation of earnings. Auspurg et al.’s (2013) comparative study of perceptions of income equity in Western Germany, Eastern Germany, and Ukraine found that age had a significant effect on performance orientation. Older respondents in Germany gave more weight to status criteria (principle of entitlement), whereas in Ukraine, older respondents gave more weight to the needs principle and younger respondents gave more weight to the performance principle. This serves to illustrate the third problem of attitudinal justice research, namely that different attitudes toward justice may be the result of different conditions of socialization (e.g., East vs. West) and different experiences with the processing of distributional conflicts. This will be the focus of the following section. Experience-Based Attitudes: Attitudes toward Justice and the Problem of Selective Sampling Many studies in the area of empirical justice research are based on laboratory experiments that use small and very homogeneous samples. These experiments involve surveys among students of psychology, economics, or the social sciences (e.g., Greenberg, 1993; Markovsky, 1988), which means that the results of these experiments are not necessarily generalizable. The same criticism leveled against all experimental studies—namely the problem of the external validity of results (Henrich et al., 2010; Jones, 2010)—can also be leveled against these experiments. However, in the field of justice attitude research, such criticism is much more problematic. There are theoretical reasons to believe (Liebig & Sauer, 2013; Vanberg, 2007), and there is empirical evidence that indicates (Almås et al., 2010; Keller et al., 2013; Meulemann & Birkelbach, 2001), that attitudes toward justice are not personality traits that remain stable and persistent through an individual’s life course. Thus, attitudes toward justice, and judgments of what is just, are “position effects” (Boudon, 1990) in that they reflect not only the specific interests but also the experiences individuals “accumulate” in different occupational and social positions over the life course (Liebig & Sauer, 2013, 2015). The local justice approach developed by Jon Elster in the 1990s (Elster, 1991a, 1991b, 1992) is explicitly based on this assumption. Owing to their experience in solving distribution problems, certain population groups have attitudes toward justice that are different from those of individuals who cannot draw on such experiences (Keller et al., 2013). This is particularly true of students because they are at a specific stage of their life course, have very similar sociostructural characteristics and social backgrounds, and little experience with social distribution conflicts and possible ways to resolve such conflicts. Experimental studies involving surveys among students thus capture only a small range of the spectrum of possible attitudes toward justice, namely the range of attitudes that are not based on working life experience and experience with the resolution of distribution conflicts. Thus, more than many other areas of research, justice research is faced with the challenge of finding ways to benefit from the advantages of experimental methods outside the laboratory and to examine heterogeneous populations. This is another problem factorial surveys can help overcome. Since they can be used to combine experimental methods and standardized surveys, factorial surveys can be embedded in traditional survey methods such as interviewer-based, online, or mail-based surveys (Sauer et al., 2009, 2011, 2014). One possible application is the determination of the weight of individual dimensions by individual groups of respondents. Such “cross-level interactions” have been observed by Schrenker (2009), who found that respondents with a high income gave significantly more weight to the income that vignette individuals had before reaching pension entitlement age when deciding what constitutes a just pension than did respondents with a low income. Auspurg et al. (2013) found that 10 respondents with a higher level of education gave more weight to occupational prestige when allocating earnings than did respondents with a lower level of education. Both of these examples show that justice judgments also reflect respondents’ personal interests and that experience with the resolution of distributional conflicts (or lack of it) plays a crucial role. This is supported by Buzea et al. (2013) and Gatskova (2013). Buzea et al. (2013) found significant differences between students and the rest of the population, with the former leaning more toward the equal-distribution principle. On the whole, the results reported here show that when larger segments of a population are to be surveyed, factorial surveys can help to overcome the problems that result from selective sampling and small sample size. Social Desirability: Justice as a Normative Concept Justice as a normative concept is always a part of normative discourses and of social conflicts that are covered by the media, especially when it comes to social problems of distribution (Brettschneider, 2007; Leisering, 2004; Volkmann, 2004). Attitudes toward justice that are related to such discourses are faced with the problem of socially desirable response behavior (Paulhus, 1984), meaning that respondents do not express what they really think or believe but instead respond in accordance with what they anticipate as the majority opinion or existing norms. Researchers find that this problem is particularly pronounced when conducting item-based surveys (King & Bruner, 2000) or relying on self-reports by individuals (Fisher & Katz, 2000). It is also one of the main problems in justice research. One example is the question of the pay gap between men and women. The general observation is that in item-based surveys, an individual’s gender should not be of any importance. Thus the general consensus is that gender-based wage discrimination— the so-called gender wage gap—is to be regarded as unjust. However, studies that use factorial surveys indicate that respondents do allocate different earnings to male and female workers and that they believe that men should earn more than women with otherwise identical characteristics. This finding was reported in one of the first studies to have used a factorial survey (i.e., Jasso & Rossi, 1977) and has been confirmed several times since (Auspurg et al., 2013; Jann, 2008; Jasso, 1994; Jasso & Webster, 1997, 1999; Sauer, 2014). The conclusion that can be drawn is that if several judgment-relevant dimensions are presented simultaneously, the tendency to give socially desirable responses—in this case, gender should not matter—is suppressed in the vignettes (Alexander & Becker, 1978; Mutz, 2011). Another example of the suppression of social-desirability effects by using factorial surveys is provided by a study on just taxation conducted by Liebig and Mau (2005), who used a regional sample in Germany to examine attitudes toward criteria of what respondents believed constituted a just tax system. They concluded that “most of the applicable principles of the current tax system are regarded as legitimate” (Liebig & Mau, 2005, p. 468, transl. from the German), that the principle of progressive taxation is generally regarded as just, but that “flat-tax” models were not consistent with the German respondents’ attitudes toward justice at the time the study was conducted. However, in the context of our own study, the difference between item-based and vignette-based surveys is more relevant. Respondents in an item-based survey were asked which of the dimensions presented should be relevant for taxation. “Marital status: Married” was one of the dimensions. The majority of respondents did not think that marital status should be considered as a dimension of taxation. The respondents were then asked to evaluate the rates of taxation of the fictitious taxpayers presented. “Married” was a level of the dimension “Marital status”—besides “cohabiting.” The results showed that the respondents thought it would be just to allocate a lower tax burden to the married fictitious taxpayers. Unlike in the item-based survey, which disregarded traditional ideas of marriage and family, in the vignette-based survey, the respondents lowered the tax burden on married vignette individuals. As before, there is good reason to believe that item- 11 based surveys tend to reflect a more socially desirable opinion. This is more evidence that factorial surveys are likely to help to avoid socially desirable response behavior (Auspurg et al., 2015). Causality: Scientific Explanation and Empirical Testing Empirical justice research that intends to provide not only mere descriptions of collective opinions and attitudes but also explanations on the basis of theoretically derived statements on causal connections is confronted with the same problem that all empirical social research has, namely that of modeling causal relationships and of sufficiently testing these relationships using empirical methods (Gangl, 2010; Opp, 2010). Traditional survey-based research, which uses cross-sectional data, is practically incapable of reliably identifying possible causal relationships, since correlations between two variables might just as well be caused by other variables that have not been measured. Due to the simultaneous measurement of theoretically assumed causes and effects, and due to the problem of unobserved heterogeneity, complex methods are needed to identify causal relationships post hoc (Gangl, 2010). Although longitudinal studies can be used to measure causes and effects separately in time, and appropriate methods (fixed-effects models) can be used to exclude the time- constant unobserved heterogeneity (Allison, 2009; Brüderl, 2010),10 the best way to test causal relationships is to use experimental methods (Falk & Heckman, 2009). The first reason is that the researcher can control the central independent variables (with causal effect) and that the experimental manipulations are randomly distributed among the participants (“randomization”). The second reason is that the laboratory allows for most confounding factors to be ruled out and thus for the isolated measurement of causal effects (Webster & Sell, 2007). However, it should be noted that the problems described above occur when specific populations are surveyed. Once again, factorial surveys can provide a way out of this dilemma. Ceteris paribus modeling of hypotheses enables direct testing of theoretical relationships, and the randomized assignment of vignettes to respondents ensures independence of vignette and respondent characteristics. This rules out third-variable effects. In the specific case of justice research this means that the survey instrument takes the context dependence of attitudes toward justice into consideration, given that the respondents are provided with an appropriate description of the allocation and distribution situation. In addition, random assignment makes it possible to test models that explain causal relationships (Liebig & Sauer, 2013, 2015). As this article has shown, factorial surveys can be used, if not to overcome the five key conceptual and methodological problems of attitude-based empirical research on justice entirely, then at least to reduce these problems to a certain extent. Conclusion In this paper, we discussed the reasons why factorial surveys are used in justice research, the specific methodological features of studies that use these surveys, and the key results such studies have provided in the past. Our findings confirm that an individual’s decision whether goods and burdens are allocated justly does indeed depend on certain characteristics of the recipients of such goods and burdens, as well as on situational conditions. Factorial surveys can help to reveal how respondents differentiate when judging whether something is just or not. Factorial survey studies also reveal consensus structures that relate to the application of the norms and principles that 10 There are some longitudinal studies in the area of justice research which use fixed-effect models, among others (cf. Liebig et al., 2012; Sauer & Valet, 2013; Schunck et al., 2013). 12 underlie them and in which not only specific cultural features but also specific sociopositional features play a role. A particular advantage of using factorial surveys is that they enable the determination of the exact amounts of specific rewards and burdens recipients would allocate. The studies on just earnings or household income, socially just welfare benefits, or fair taxation allow researchers to derive conclusions as to what a given society believes are equitable rewards and burdens. Factorial surveys thus have benefits that far exceed those of item-based surveys. Recent years have seen an increasing use of factorial surveys in empirical social research, as well as a growing number of studies that focus on the methodological issues of and the questions that arise in connection with this method. To the extent that the experiences and insights derived in this way will inform the practice of conducting factorial surveys, the conceptual and methodological approaches can be expected to be optimized further in the future. As regards justice research, the use of factorial surveys in international comparative studies appears to be particularly promising (e.g., Auspurg et al., 2013; Hysom & Fişek, 2011; Jasso & Meyersson Milgrom, 2008) because most of the research in this area has been descriptive in nature (cf. Liebig & Sauer, 2013, 2015) and for precisely this reason is incapable of identifying the causal mechanisms that underlie judgments in different societies and thus cannot clearly differentiate between cultural and positional influences. We also think that it would be worthwhile to continue to explore the potential of interactive survey methods. One question in justice research that has yet to be answered is what influence the distribution of earnings in a given society has on respondents’ assessments of their own earnings. Does the actual degree of income inequality have any influence at all, or do individuals usually evaluate their earnings without regard to societal distribution parameters? Factorial surveys may help to answer these questions because they offer the opportunity to vary distribution contexts and to test the causal effects of “structural” parameters on individual justice judgments. However, a question that remains largely unresolved is whether factorial surveys enable more reliable behavior predictions in the context of justice research (cf. Eifler, 2010). This is where we see the greatest potential for development in this research field. References Adams, J. S. (1965). Inequity in Social Exchange. Advances in Experimental Social Psychology, 2, 267–299. Alexander, C. S., & Becker, H. J. (1978). The Use of Vignettes in Survey Research. Public Opinion Quarterly, 42(1), 93–104. Allison, P. D. (2009). Fixed Effects Regression Models. Thousand Oaks, CA; London; New Delhi; Singapore: SAGE. Almås, I., Cappelen, A. W., Sørensen, E. Ø., & Tungodden, B. (2010). Fairness and the Development of Inequality Acceptance. Science, 328(5982), 1176–1178. Alves, W. M., & Rossi, P. H. (1978). Who Should Get What? Fairness Judgments of the Distribution of Earnings. American Journal of Sociology, 84(3), 541–564. Auspurg, K., & Jäckle, A. (2012). First equals most important? Order effects in vignette-based measurement. ISER Working Paper Series, no. 2012-01. Colchester: Institute for Social and Economic Research. Auspurg, K., Gatskova, K., & Hinz, T. (2013). Vorstellungen von Lohngerechtigkeit in West- und Ostdeutschland und in der Ukraine. WSI-Mitteilungen, 66(2), 77–88. Auspurg, K., Hinz, T., & Sauer, C. (2013). Status Construction or Statistical Discrimination? New Insights on Fair Earnings from a Factorial Survey Study. Paper presented at the 108th Annual Meeting of the American Sociological Association, New York, NY. Auspurg, K., Hinz, T., Liebig, S., & Sauer, C. (2015). The Factorial Survey as a Method for Measuring Sensitive Issues. In U. Engel, B. Jann, P. Lynn, A. Scherpenzeel, & P. Sturgis 13 (Eds.), Improving Survey Methods: Lessons from Recent Research (pp. 137–150). New York, NY; Hove: Routledge. Beck, M., & Opp, K.-D. (2001). Der faktorielle Survey und die Messung von Normen. Kölner Zeitschrift für Soziologie und Sozialpsychologie, 53(2), 283–306. Boudon, R. (1990). Subjektive Rationalität und die Theorie der Ideologie. In H. Haferkamp (Ed.), Sozialstruktur und Kultur (pp. 384–414). Frankfurt am Main: Suhrkamp. Brettschneider, A. (2007). Jenseits von Leistung und Bedarf: Zur Systematisierung sozialpolitischer Gerechtigkeitsdiskurse. Zeitschrift für Sozialreform, 53(4), 365–389. Brosnan, S. F. (2006). Nonhuman Species’ Reactions to Inequity and their Implications for Fairness. Social Justice Research, 19(2), 153–185. Brüderl, J. (2010). Kausalanalyse mit Paneldaten. In C. Wolf, & H. Best (Eds.), Handbuch der sozialwissenschaftlichen Datenanalyse (pp. 963–994). Wiesbaden: VS Verlag für Sozialwissenschaften/Springer Fachmedien. Buzea, C., Mesesan-Schmitz, L., & van de Vijver, F. J. R. (2013). Reward-Allocation Judgments in Romania: A Factorial Survey Approach. Revista de cercetare şi intervenţie socială, 40, 107–123. Cohn, E. S., White, S. O., & Sanders, J. (2000). Distributive and Procedural Justice in Seven Nations. Law and Human Behavior, 24(5), 553–579. Deutsch, M. (1985). Distributive Justice: A Social-Psychological Perspective. New Haven, CT: Yale University Press. Eifler, S. (2010). Validity of a Factorial Survey Approach to the Analysis of Criminal Behavior. Methodology: European Journal of Research Methods for the Behavioral and Social Sciences, 6(3), 139–146. Elster, J. (1991a). Local justice and interpersonal comparisons. In J. Elster, & J. E. Roemer (Eds.), Interpersonal Comparisons of Well-Being (pp. 98–126). Cambridge; New York, NY; Melbourne: Cambridge University Press. Elster, J. (1991b). Local justice: How institutions allocate scarce goods and necessary burdens. European Economic Review, 35(2–3), 273–291. Elster, J. (1992). Local justice: How Institutions Allocate Scarce Goods and Necessary Burdens. New York, NY: Russell Sage Foundation. Falk, A., & Heckman, J. J. (2009). Lab Experiments Are a Major Source of Knowledge in the Social Sciences. Science, 326(5952), 535–538. Fehr, E., & Schmidt, K. M. (2006). The Economics of Fairness, Reciprocity and Altruism – Experimental Evidence and New Theories. In S.-C. Kolm, & J. M. Ythier (Eds.), Handbook of the Economics of Giving, Altruism and Reciprocity: Volume 1: Foundations (pp. 615– 691). Amsterdam; Oxford: North-Holland. Fisher, R. J., & Katz, J. E. (2000). Social-desirability bias and the validity of self-reported values. Psychology and Marketing, 17(2), 105–120. Gangl, M. (2010). Causal Inference in Sociological Research. Annual Review of Sociology, 36(1), 21–47. Gatskova, K. (2013). Distributive justice attitudes in Ukraine: Need, desert or social minimum? Communist and Post-Communist Studies, 46(2), 227–241. Greenberg, J. (1993). Stealing in the Name of Justice: Informational and Interpersonal Moderators of Theft Reactions to Underpayment Inequity. Organizational Behavior and Human Decision Processes, 54(1), 81–103. Hegtvedt, K. A. (2006). Justice Frameworks. In P. J. Burke (Ed.), Contemporary Social Psychological Theories (pp. 46–69). Stanford, CA: Stanford University Press. Henrich, J., Heine, S. J., & Norenzayan, A. (2010). The weirdest people in the world? Behavioral and Brain Sciences, 33(2–3), 61–83. Hermkens, P. J., & Boerman, F. (1989). Consensus With Respect to the Fairness of Incomes: Differences Between Social Groups. Social Justice Research, 3(3), 201–215. 14 Hysom, S. J., & Fişek, M. H. (2011). Situational determinants of reward allocation: The equity– equality equilibrium model. Social Science Research, 40(4), 1263–1285. Jann, B. (2008). Lohngerechtigkeit und Geschlechterdiskriminierung: Evidenz aus einem Vignetten-Experiment. In B. Jann (Ed.), Erwerbsarbeit, Einkommen und Geschlecht: Studien zum Schweizer Arbeitsmarkt (pp. 107–126). Wiesbaden: VS Verlag für Sozialwissenschaften. Jasso, G. (1978). On the Justice of Earnings: A New Specification of the Justice Evaluation Function. American Journal of Sociology, 83(6), 1398–1419. Jasso, G. (1980). A New Theory of Distributive Justice. American Sociological Review, 45(1), 3– 32. Jasso, G. (1994). Assessing Individual and Group Differences in the Sense of Justice: Framework and Application to Gender Differences in the Justice of Earnings. Social Science Research, 23(4), 368–406. Jasso, G. (2006). Factorial Survey Methods for Studying Beliefs and Judgments. Sociological Methods & Research, 34(3), 334–423. Jasso, G. (2007). Studying Justice: Measurement, Estimation, and Analysis of the Actual Reward and the Just Reward. In K. Törnblom, & R. Vermunt (Eds.), Distributive and Procedural Justice: Research and Social Applications (pp. 225–253). London; Burlington, VT: Ashgate. Jasso, G., & Meyersson Milgrom, E. M. (2008). Distributive Justice and CEO Compensation. Acta Sociologica, 51(2), 123–143. Jasso, G., & Rossi, P. H. (1977). Distributive Justice and Earned Income. American Sociological Review, 42(4), 639–651. Jasso, G., & Webster, M. J. (1997). Double Standards in Just Earnings for Male and Female Workers. Social Psychology Quarterly, 60(1), 66–78. Jasso, G., & Webster, M. J. (1999). Assessing the Gender Gap in Just Earnings and Its Underlying Mechanisms. Social Psychology Quarterly, 62(4), 367–380. Jasso, G., & Wegener, B. (1997). Methods for Empirical Justice Analysis: Part 1. Framework, Models, and Quantities. Social Justice Research, 10(4), 393–430. Jones, D. (2010). A WEIRD View of Human Nature Skews Psychologists’ Studies. Science, 328(5986), 1627. Keller, M., Gummerum, M., Canz, T., Gigerenzer, G., & Takezawa, M. (2013). The Is And Ought of Sharing: The Equality Heuristic Across The Lifespan. In R. Hertwig, U. Hoffrage, & ABC Research Group (Eds.), Simple Heuristics in a Social World (pp. 171–198). New York, NY: Oxford University Press. King, M. F., & Bruner, G. C. (2000). Social desirability bias: A neglected aspect of validity testing. Psychology and Marketing, 17(2), 79–103. Leisering, L. (2004). Paradigmen sozialer Gerechtigkeit: Normative Diskurse im Umbau des Sozialstaats. In S. Liebig, H. Lengfeld & S. Mau (Eds.), Verteilungsprobleme und Gerechtigkeit in modernen Gesellschaften (pp. 29–68). Frankfurt am Main: Campus. Leventhal, G. S. (1980). What Should Be Done With Equity Theory? New Approaches to the Study of Fairness in Social Relationships. In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social Exchange: Advances in Theory and Research (pp. 27–55). New York, NY: Plenum Press. Liebig, S., & Mau, S. (2002). Einstellungen zur sozialen Mindestsicherung: Ein Vorschlag zur differenzierten Erfassung normativer Urteile. Kölner Zeitschrift für Soziologie und Sozialpsychologie, 54(1), 109–134. Liebig, S., & Mau, S. (2005). Wann ist ein Steuersystem gerecht? Einstellungen zu allgemeinen Prinzipien der Besteuerung und zur Gerechtigkeit der eigenen Steuerlast. Zeitschrift für Soziologie, 34(6), 468–491. Liebig, S., & Sauer, C. (2013). Soziologische Gerechtigkeitsanalyse: Überlegungen zur theoretischen Fundierung eines Forschungsfeldes. Analyse und Kritik, 35(2), 371–394. 15 Liebig, S., & Sauer, C. (2015). Sociology of Justice. In C. Sabbagh & M. Schmitt (Eds.), Handbook of Social Justice Theory and Research. New York: Springer. Liebig, S., Sauer, C., & Schupp, J. (2012). The justice of earnings in dual-earner households. Research in Social Stratification and Mobility, 30(2), 219–232. Liebig, S., Sauer, C., May, M., Hinz, T., Auspurg, K., Joos, A., & Schwarz, J. (2010). Bericht zur Studie Einkommensgerechtigkeit in Deutschland. Bielefeld: Bielefeld University/Konstanz: University of Konstanz. Markovsky, B. (1988). Injustice and Arousal. Social Justice Research, 2(3), 223–233. Markovsky, B., & Eriksson, K. (2012). Comparing Direct and Indirect Measures of Just Rewards. Sociological Methods & Research, 41(1), 199–216. Messick, D. M. (1993). Equality as a decision heuristic. In B. A. Mellers, & J. Baron (Eds.), Psychological Perspectives on Justice: Theory and Applications (pp. 11–31). Cambridge; New York, NY; Oakleigh, Vic.: Cambridge University Press. Meulemann, H., & Birkelbach, K. (2001). Biographische Erfahrungen und politische Einstellungen zwischen Jugend und Lebensmitte: Die Entwicklung von Wertansprüchen an die Politik bei ehemaligen Gymnasiasten im 16., 30. und 43. Lebensjahr zwischen 1969 – 1997. Politische Vierteljahresschrift, 42(1), 30–50. Mutz, D. C. (2011). Population-Based Survey Experiments. Princeton, NJ: Princeton University Press. Opp, K.-D. (2010). Kausalität als Gegenstand der Sozialwissenschaften und der multivariaten Statistik. In C. Wolf, & H. Best (Eds.), Handbuch der sozialwissenschaftlichen Datenanalyse (pp. 9–38). Wiesbaden: VS Verlag für Sozialwissenschaften/Springer Fachmedien. Paulhus, D. L. (1984). Two-component models of socially desirable responding. Journal of Personality and Social Psychology, 46(3), 598–609. Rawls, J. (1975). Eine Theorie der Gerechtigkeit. Frankfurt am Main: Suhrkamp. Roch, S. G., Lane, J. A. S., Samuelson, C. D., Allison, S. T., & Dent, J. L. (2000). Cognitive Load and the Equality Heuristic: A Two-Stage Model of Resource Overconsumption in Small Groups. Organizational Behavior and Human Decision Processes, 83(2), 185–212. Rossi, P. H., & Anderson, B. (1982). The factorial survey approach: an introduction. In P. H. Rossi, & S. L. Nock (Eds.), Measuring Social Judgements: The Factorial Survey Approach (pp. 15–67). Beverly Hills, CA: Sage. Runciman, W. G. (1966). Relative Deprivation and Social Justice: A Study of Attitudes to Social Inequality in Twentieth-Century England. London: Routledge. Sauer, C. (2014). A Just Gender Pay Gap? Three Factorial Survey Studies On Justice Evaluations Of Earnings for Male and Female Employees. SFB 882 Working Paper Series, no. 29. Bielefeld: DFG Research Center (SFB) 882 From Heterogeneities to Inequalities. Sauer, C., Auspurg, K., Hinz, T., & Liebig, S. (2011). The Application of Factorial Surveys in General Population Samples: The Effects of Respondent Age and Education on Response Times and Response Consistency. Survey Research Methods, 5(3), 89–102. Sauer, C., Auspurg, K., Hinz, T., Liebig, S., & Schupp, J. (2009). Die Bewertung von Erwerbseinkommen – Methodische und inhaltliche Analysen zu einer Vignettenstudie im Rahmen des SOEP-Pretest 2008. SOEPpapers on Multidisciplinary Panel Data Research, no. 189. Berlin: DIW Berlin, The German Socio-Economic Panel (SOEP). Sauer, C., Auspurg, K., Hinz, T., Liebig, S., & Schupp, J. (2014). Method Effects in Factorial Surveys: An Analysis of Respondents’ Comments, Interviewers’ Assessments, and Response Behavior. SOEPpapers on Multidisciplinary Panel Data Research, no. 629 Berlin: DIW Berlin, The German Socio-Economic Panel (SOEP). Sauer, C., & Valet, P. (2013). Less is Sometimes More: Consequences of Overpayment on Job Satisfaction and Absenteeism. Social Justice Research, 26(2), 132–150. Schaeffer, N. C. (1990). Principles of Justice in Judgments About Child Support. Social Forces, 69(1), 157–179. 16 Schrenker, M. (2009). Warum fast alle das deutsche Rentensystem ungerecht finden, aber trotzdem nichts daran ändern möchten: Die Wahrnehmung gerechter Renten und die Akzeptanz von Rentenreformen. Kölner Zeitschrift für Soziologie und Sozialpsychologie, 61(2), 259–282. Schunck, R., Sauer, C., & Valet, P. (2013). Macht Ungerechtigkeit krank? Gesundheitliche Folgen von Einkommens(un)gerechtigkeit. WSI-Mitteilungen, 66(8), 553–561. Shepelak, N. J., & Alwin, D. F. (1986). Beliefs about Inequality and Perceptions of Distributive Justice. American Sociological Review, 51(1), 30–46. Törnblom, K. Y. (1992). The social psychology of distributive justice. In K. R. Scherer (Ed.), Justice: Interdisciplinary Perspectives (pp. 177–236). Cambridge; New York, NY: Cambridge University Press. Vanberg, V. J. (2007). Marktwirtschaft und Gerechtigkeit – Idee und Kritik der sozialen Gerechtigkeit im Konzept der Sozialen Marktwirtschaft. In S. Empter, & R. B. Vehrkamp (Eds.), Soziale Gerechtigkeit – eine Bestandsaufnahme (pp. 25–50). Gütersloh: Bertelsmann-Stiftung. Volkmann, U. (2004). Die journalistische Konstruktion gerechter Ungleichheiten. In S. Liebig, H. Lengfeld, & S. Mau (Eds.), Verteilungsprobleme und Gerechtigkeit in modernen Gesellschaften (pp. 297–328). Frankfurt am Main: Campus. Wallander, L. (2009). 25 years of factorial surveys in sociology: A review. Social Science Research, 38(3), 505–520. Webster, M., & Sell, J. (2007). Theory and Experimentation in the Social Sciences. In W. Outhwaite, & S. Turner (Eds.), The SAGE Handbook of Social Science Methodology (pp. 190–207). London; Thousand Oaks, CA; New Delhi; Singapore: SAGE. Wegener, B. (1987). The illusion of distributive justice. European Sociological Review, 3(1), 1–13. 17 1 Appendix Table 1. Distributive justice: An overview of factorial surveys Note: Publications have been selected on the basis of the procedure described in Footnote 3. Jasso and Rossi (1977), Jasso (1994), and Jasso & Webster (1997) are based on the same sample. NV = Number of vignettes used; NB = Number of respondents; NV/NB = Number of vignettes per respondent; ? = Exact number not reported. The column “Dimensions” is read as follows: e.g., 5 (2 × 34) means 5 dimensions with 1 × 2 levels and 4 × 3 levels. Sorted by topic and year. Characteristics that were used as dependent variables, had no influence, or were not examined in the article are given in brackets. Reference Object of investigation Relevant characteristics Dimensions (levels) NB NV NV/NB Answering scale Vignette sampling Respondent population Analysis Countries Alves & Rossi (1978) Earned income (individual) Earned Income, Occupational Status, Marital Status, Number of Children, Education, Taxation; [Gender], [Ethnicity] 8 (52 × 2 × 4 × 7 × ? × ? × ? × ?) 522 ? 50 9-point scale Random General population OLS regression USA Jasso (1994) Earned income (individual) Gender; [Relational Status], [Earned Income], [Education], [Number of Children], [Occupational Status] 6 (2² × 7 × 10 × 99 × 15) 200 600 60 9-point scale Random General population Two-stage estimation procedure USA Jasso &Webster (1997) Earned income (individual) Gender; [Relational Status], [Earned Income], [Education], [Number of Children], [Occupational Status] 6 (2² × 7 × 10 × 99 × 15) 200 100 60 9-point scale Random General population OLS regression USA Jasso & Webster (1999) Earned income (individual) Age, Education, Gender, Earned Income; [Occupational Status] 5 (2 × 10² × 4 × 15) 377 30 10 Magnitude scale Random Students Robust regression, respondent- specific regression, and vignette-specific regression USA Cohn et al. (2000) Earned income (individual) Effort (Certificate of Employment, Willingness to Accept Occupational Changes/Salary Cuts), Need (Labor Market Situation, Marital Status); [Voice], [Impartiality of the Company] 4 (42); 5 (5²) 831; 786; 824; 765; 762; 775; 810 32; 1000 2 10-point scale Complete design; random General population OLS regression Bulgaria, Hungary, Poland, Russia, France, Spain, USA 18 Jann (2008) Earned income (individual) Gender, Need (Single Parent, Narrow Finances), Effort (Engagement, Complies with Performance Requirements) 3 (3³) 531 8 1 11-point scale Complete design General population OLS regression Switzerland Jasso & Meyersson Milgrom (2008) Earned income (individual) Age, Gender, Job Experience, Company Site, Industrial Sector, Education, Financial Assets of the Company; [Earned Income] 8 (11 × 2 × 15 × 16× 3 × 4 × 272) 47; 36 80 40 Magnitude scale Random Students Multilevel models and respondent- specific regression USA, Sweden Sauer et al. (2009) Earned income (individual) Earned Income, Occupational Status, Education, Effort, Marital Status, Number of Children, Gender, Situation of the Company, Company Size; [Age] 10 (2 × 35 × 4 × 5 × 10²) 1066 240 24 Magnitude scale Fractionalized design General population Robust regression Germany Hysom & Fişek (2011) Earned income (individual) Kind of Task, Co-Worker Relations, Kind of Occupation; [Gender], [Occupational Status], [Age], [Education], [Occupational Experience], [Group Size] 9 (24 × 35) 295; 314 8 8 Allocation of relative proportion of the reward Selective choice of vignette dimensions on the basis of pretests Students OLS regression USA, Turkey Auspurg et al. (2013) Earned income (individual) Germany (West): Occupational Status, Effort, Education, Marital Status, Gender, Age, Number of Children; [Situation of the Company], [Form of Company], [Earned Income] Germany (East): Occupational Status, Effort, Education, Marital Status, Number of Children, Age, Gender; [Situation of the Company], [Form of Company], [Earned Income] Ukraine: Number of Children, Effort, Occupational Status, Marital Status, Gender, Education, Age; [Situation of the Company], [Form of the Company], [Earned Income] 10 (Germany: 4 × 2 × 35 × 10² × 5; Ukraine: 4 × 2² × 34 × 10² × 5) 944; 1797 240 24 100-point scale Fractionalized design General population Robust regression Germany, Ukraine Buzea et al. (2013) Earned income (individual) Contribution, Occupational Experience, Familiarity with the task, Need (Number of Children), Future Interactions, Age; [Gender] 7 (2 × 8 × 35) 200 8000 40 Percentage pay increase Random Students Multilevel models Romania 19 Gatskova (2013) Earned income (individual) Older Generation: Number of Children, Effort, Occupational Status, Relational Status, Gender, Form of the Company, Age; [Education], [Earned Income], [Financial Situation of the Company] Younger Generation: Number of Children, Effort, Occupational Status, Gender, Relational Status, Form of the Company, Age; [Education], [Earned Income], [Financial Situation of the Company] 10 (2 × 36 × 6 × 10²) 12 11-point scale Fractionalized design General population Robust regression Ukraine Jasso & Rossi (1977) Earned income (household) Multiple Person Households: Education (Husband), Occupational Status (Husband & Wife), Marital Status, Family Income; [Education (Wife)], [Number of Children] Multiple Person Households: Gender, Relational Status, Earned Income, Education, Number of Children, Occupational Status 6 (2² × 7 × 10 × 99 × 15) 200 600 60 9-point scale Random General population OLS regression USA Shepelak & Alwin (1986) Earned income (household) Single Households: Ethnicity, Education, Size of Family, Vocational Training, Gender, Occupational Prestige Family Household: Education (Husband & Wife), Vocational Training, Gender, Occupational Status of Husband & Wife; [Family Size] 6 328 135 15 Monetary units Selective choice General population OLS regression USA Hermkens & Boerman (1989) Earned income (household) Occupational Status, Number of Employed Persons in Household, Number of Children, Occupational Effort; [Gender], [Age] 6 (2² × 27 × 50 × ? × ?) 795 4200; 8400 5; 10 Monetary units Random General population OLS regression Netherlands Schaeffer (1990) Child support Earned Income Father, Earned Income Mother, Marital Status Father, Marital Status Mother, 6 (23 × 32 × 5) 1003 3 Monetary units Random General population Tobit regression USA 20 Number of Children [Occupational Status Father] Liebig & Mau (2002) Minimum collateral Number of Children, Occupational Status, Age, Occupational Position, Amount of State Transfers; [Reason for Lay-Off], [Amount of Income Supplement], [Gender] 8 (22 × 32 × 1 × 4 × 6 × 5) 121 48 24 Magnitude scale Random General population Robust regression Germany Liebig & Mau (2005) Taxes Earned Income, Number of Children, Amount of Inheritance, Marital Status; [Social Engagement], [Age], [Gender], [Occupational Status] 8 (2² × 3 × 4² × 5 × 19 × 33 ) 586 20 20 Magnitude scale Random General population Robust regression Germany Schrenker (2009) Pensions Amount of last Income, Years of Professional Experience, Number of Children, Combined Supply of Partner, Gender; [Amount of Monthly Pension] 6 (22 × 11 × 5 × 6 × 10) 2690 250 25 Monetary units and 11- point scale Random General population Random coefficient models and OLS models (including beta- values and t- values) Germany 21 Previously published SFB 882 Working Papers: Diewald, Martin / Faist, Thomas (2011): From Heterogeneities to Inequalities: Looking at Social Mechanisms as an Explanatory Approach to the Generation of Social Inequalities, SFB 882 Working Paper Series No. 1, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Bielefeld. Busch, Anne (2011): Determinants of Occupational Gender Segregation: Work Values and Gender (A)Typical Occupational Preferences of Adolescents, SFB 882 Working Paper Series No. 2, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Faist, Thomas (2011): Multiculturalism: From Heterogeneities to Social (In)Equalities, SFB 882 Working Paper Series No. 3, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Amelina, Anna (2012): Jenseits des Homogenitätsmodells der Kultur: Zur Analyse von Transnationalität und kulturellen Interferenzen auf der Grundlage der hermeneutischen Wissenssoziologie, SFB 882 Working Paper Series No. 4, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Osmanowski, Magdalena / Cardona, Andrés (2012): Resource Dilution or Resource Augmentation? Number of Siblings, Birth Order, Sex of the Child and Frequency of Mother’s Activities with Preschool Children, SFB 882 Working Paper Series No. 5, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Amelina, Anna / Bilecen, Başak / Barglowski, Karolina / Faist, Thomas (2012): Ties That Protect? The Significance of Transnationality for the Distribution of Informal Social Protection in Migrant Networks, SFB 882 Working Paper Series No. 6, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Alemann, Annette von / Beaufaÿs, Sandra / Reimer, Thordis (2012): Gaining Access to the Field of Work Organizations with the Issue of “Work-Family-Life Balance” for Fathers, SFB 882 Working Paper Series No. 7, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B5, Bielefeld. Kaiser, Till (2012): Haben gebildetere Mütter gewissenhaftere Kinder? Soziale Herkunft und Persönlichkeitsentwicklung im frühkindlichen Alter, SFB 882 Working Paper Series No. 8, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Gusy, Christoph / Müller, Sebastian (2012): Social Construction of Heterogeneity Indicators and their Relationship to Law. The Example of Guiding Principles in Immigration Law, SFB 882 Working Paper Series No. 9, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C4, Bielefeld. Liebig, Stefan / May, Meike / Sauer, Carsten / Schneider, Simone / Valet, Peter (2012): Inequality Preferences in Interviewer- and Self-Administered Interviews, SFB 882 Working Paper Series No. 10, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Fauser, Margit / Voigtländer, Sven / Tuncer, Hidayet / Liebau, Elisabeth / Faist, Thomas / Razum, Oliver (2012): Transnationality and Social Inequalities of Migrants in Germany, SFB 882 Working Paper Series No. 11, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C1, Bielefeld. Freistein, Katja / Koch, Martin (2012): Global Inequality and Development. Textual Representations of the World Bank and UNDP, SFB 882 Working Paper Series No. 12, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Golsch, Katrin (2013): Shall I Help You My Dear? Examining Variations in Social Support for Career Advancement within Partnerships, SFB 882 Working Paper Series No. 13, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Bröckel, Miriam / Busch, Anne / Golsch, Katrin (2013): Headwind or Tailwind – Do Partner’s Resources Support or Restrict a Promotion to a Leadership Position in Germany?, SFB 882 Working Paper Series No. 14, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Cardona, Andrés (2013): Closing the Group or the Market? The Two Sides of Weber’s Concept of Closure and Their Relevance for the Study of Intergroup Inequality, SFB 882 Working Paper Series No. 15, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Friedhoff, Stefan / Meier zu Verl, Christian / Pietsch, Christian / Meyer, Christian / Vompras, Johanna / Liebig, Stefan (2013): Social Research Data. Documentation, Management, and Technical Implementation at SFB 882, SFB 882 Working Paper Series, No. 16, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Project “Information and Data Infrastructure” (INF), Bielefeld. Reinecke, Jost / Stemmler, Mark / Sünkel, Zara / Schepers, Deborah / Weiss, Maren / Arnis, Maria / Meinert, Julia / Kucur-Uysal, Burcu / Pöge, Andreas / Wallner, Susanne / Wittenberg, Jochen (2013): The Development of Deviant and Delinquent Behavior over the Life Course in the Context of Processes of Social Inequalities, SFB 882 Working Paper Series No. 17, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A2, Bielefeld. Hense, Andrea / Edler, Susanne / Liebig, Stefan (2013): Individual Determinants of Recalls, SFB 882 Working Paper Series No. 18, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B4, Bielefeld. Bilecen, Başak (2013): Analyzing Informal Social Protection Across Borders: Synthesizing Social Network Analysis with Qualitative Interviews, SFB 882 Working Paper Series No. 19, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Schunck, Reinhard / Abendroth, Anja-Kristin / Diewald, Martin / Melzer, Silvia Maja / Pausch, Stephanie (2013): What do Women and Men Want? Investigating and Measuring Preference Heterogeneity for Life Outcomes using a Factorial Survey, SFB 882 Working Paper Series No. 20, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B3, Bielefeld. Sauer, Carsten / Valet, Peter / Liebig, Stefan (2013): The Impact of Within and Between Occupational Inequalities on People’s Justice Perceptions Towards their Own Earnings, SFB 882 Working Paper Series No. 21, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Schneider, Simone / Valet, Peter (2013): Social Comparison Orientations and their Consequences for Justice Perceptions of Earnings, SFB 882 Working Paper Series No. 22, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Cardona, Andrés (2013): The Programmatic Bias in the Discussion on Social Mechanisms in Sociology, SFB 882 Working Paper Series No. 23, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Hille, Adrian / Schupp, Jürgen (2013): How Learning a Musical Instrument Affects the Development of Skills, SFB 882 Working Paper Series No. 24, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Faist, Thomas (2014): "We are all Transnationals now": The Relevance of Transnationality for Understanding Social Inequalities, SFB 882 Working Paper Series No. 25, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C1, Bielefeld. Lohmann, Henning / Ferger, Florian (2014): Educational Poverty in a Comparative Perspective: Theoretical and Empirical Implications, SFB 882 Working Paper Series No. 26, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A5, Bielefeld. Freistein, Katja / Koch, Martin (2014): The Effects of Measuring Poverty – Indicators of the World Bank, SFB 882 Working Paper Series No. 27, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Andernach, Björn / Schunck, Reinhard (2014): Investigating the Feasibility of a Factorial Survey in a CATI, SFB 882 Working Paper Series No. 28, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B3, Bielefeld. Sauer, Carsten (2014): A Just Gender Pay Gap? Three Factorial Survey Studies on Justice Evaluations of Earnings for Male and Female Employees, SFB 882 Working Paper Series No. 29, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Berger, Johannes (2014): Dringend erforderlich: eine stärker vereinheitlichte soziologische Ungleichheitsforschung, SFB 882 Working Paper Series No. 30, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project Z, Bielefeld. Karsch, Anna (2014): Geschlechtstypische Unterschiede in den Berufspräferenzen deutscher Jugendlicher, SFB 882 Working Paper Series No. 31, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Barglowski, Karolina (2014): Social Classifications and Inequalities: Ideologies of Mobility, Care and Work in Transnational Families, SFB 882 Working Paper Series No. 32, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Sauer, Carsten / Valet, Peter / Liebig, Stefan (2014): Ungleichheiten am Arbeitsmarkt und die Gerechtigkeitswahrnehmung von Erwerbseinkommen, SFB 882 Working Paper Series No. 33, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Dawid, Herbert / Harting, Philipp / Neugart, Michael (2014): Cohesion Policy and Inequality Dynamics: Insights from a Heterogeneous Agents Macroeconomic Model, SFB 882 Working Paper Series No. 34, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A4, Bielefeld. Liebig, Stefan / May, Meike / Sauer, Carsten / Schneider, Simone / Peter Valet (2014): The Effect of Interviewer Presence on Inequality Preferences, SFB 882 Working Paper Series No. 35, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Cardona, Andrés / Diewald, Martin (2014): Opening the Black Box of Primary Effects: Relative Risk Aversion and Maternal Time Investments in Preschool Children, SFB 882 Working Paper Series No. 36, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Fehl, Caroline / Freistein, Katja (2014): Institutional Mechanisms of Global Inequality Reproduction, SFB 882 Working Paper Series No. 37, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Freistein, Katja (2014): Are there any Global Imaginaries of Equality and Democracy in Discussions about Inequality? SFB 882 Working Paper Series No. 38, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Meinert, Julia (2014): Selection into criminogenic contexts by personal heterogeneity and its effects on delinquency, SFB 882 Working Paper Series No. 39, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A2, Bielefeld. Schepers, Debbie (2014): Social Inequalities as Causes of the Causes of Juvenile Delinquency. Heterogeneities in the Context of Situational Action Theory, SFB 882 Working Paper Series No. 40, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A2, Bielefeld. Abendroth, Anja-Kristin / Pausch, Stephanie / Böhm, Sebastian (2014): German Fathers and Their Preference to Reduce Working Hours to Care for Their Children, SFB 882 Working Paper Series No. 41, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Bürmann, Marvin: Determinanten beruflichen Aufstiegs (2014): Der Einfluss von Unterstützung durch Kollegen und Vorgesetzte. Eine Sekundäranalyse anhand der Daten des Sozio-oekonomischen Panels. SFB 882 Working Paper Series No. 42, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Rosenbohm, Sophie / Gebel, Tobias / Hense, Andrea (2015): Potenziale und Voraussetzungen für die Sekundäranalyse qualitativer Interviewdaten in der Organisationsforschung. SFB 882 Working Paper Series No. 43, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B4/INF, Bielefeld. Schneider, Simone / Shamon, Hawal (2015): How Others' Earnings influence our Justice Perceptions. Studying the Effects of Income Distribution and Social Position on Reflexive Justice Evaluations among German Employees. SFB 882 Working Paper Series No. 44, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Kruphölter, Sonja / Sauer, Carsten / Valet, Peter (2015): Occupational gender segregation and gender differences in justice evaluations. SFB 882 Working Paper Series No. 45, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Liebig, Stefan / Sauer, Carsten / Hülle, Sebastian (2015): Why is justice regarded as so important? Theoretical considerations and an empirical test of a fundamental question. SFB 882 Working Paper Series No. 46, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Foliennummer 1 Liebig-Sauer-Friedhoff-2015.pdf Introduction Contextual Information: Complexity of Distribution Processes Conclusion References 1 Appendix 10-point scale 
work_64ob2n7ganbynbfnopigln27a4	----	2004 VOL. 28 NO . 6 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH 507 Editorials Individual rights and social justice Jeanne Daly and Judith Lumley Co-editors, Australian and New Zealand Jour nal of Public Health Running through the election speeches of various political leaders leading up to the Australian Federal election in October 2004 were two competing discourses. The f irst, and the dominant one, emphasised the individual. The second emphasised the provision of public services. These views were not always confined to a single political party. Individuals, so it was argued, have the right to choose to send their children to a private school that reflects their personal values – and should be helped to do so by gover nment f inancial support to these schools. Individuals have the right to hold private health insurance, with greater freedom in the choice of health care provider. There was the right of the individual to climb the ‘ladder of opportunity’. There was the assumption that the tax burden on individuals should be reduced. Direct f inancial support was needed for families with young children; if individuals are the product of stable families they would hold the values that were seen to underpin a productive society. The other discourse emphasised large social and systemic issues, especially gover nment funding for health and social services. There was support for equal access to a sound educational system and, in health, support for a robust public hospital system, universal health insurance and bulk billing by general practitioners. Overall, economic issues were seen to be of paramount importance, especially the interest rates that would be levied against families holding high mor tgages. The question lurking behind the provision of better public services was who was going to pay for these services? Would tax rates be raised? Raising tax es was seen as the result of bad economic management. Good f iscal management was emphasised to the exclusion of responsibility for good moral conduct in government. It is worth noting that, while individual choice was favoured, this did not include women’s right to choose an abortion or the right to gay marriage. Public health by its very nature is aligned with those who f avour collective responsibility for the provision of good public ser vices. We have argued in this Journal that a robust public system for dealing with infectious disease is essential and collective action to sustain the environment has direct health consequences. But, we have also argued for health promotion programs that deal with individual behaviour, such as smoking tobacco or unsafe driving. Often the individual and the systemic are combined, for example, when a tax on tobacco products is used as part of a program of smoking cessation. Between these two extremes, we have focused on the health needs of communities and geographic regions. Any discipline or practice that covers anything from the individual to the systemic r uns the risk of delivering a thin coverage of any one issue. In this Journal, we have argued that the diversity of public health is its strength, especially as we have developed a corresponding diversity in our research methods so that the evidence on which we base our practice has a sound basis. In this issue, we argue that public health activities at these various levels are inte grated and given coherence by a set of shared values. The most important of these values is a concern for social justice. Social justice is one of those ideas that is often invoked and seldom analysed, although it is something we all treasure. While advocacy is an important par t of public health practice, we see the role of the Jour nal as analysing the evidence for our strong beliefs, submitting them to peer review, and opening up a debate about these sometimes diff icult issues. So it is in this issue of the Jour nal, which opens with Julian Disney’s editorial on pover ty public health and social justice in the light of the Federal election. Sarah Mares and Jon Jureidini report the psychiatric assessment of children and families in immigration detention who were referred for assessment to a child and adolescent health service as showing very high levels of psychopathology, much of it attributable to traumatic experiences in detention. Zachar y Steel and colleagues document the poor mental health status of a near complete sample of children and their f amilies from one ethnic group held for an extended period of time in a remote detention centre, describing detention-related traumatic symptoms and the effect of detention on parenting. These two papers are complemented by Linda Shields’ comparison of Australia’s solution with the very different approaches of two Nordic countries and Deborah Zion’s reflection on the dilemmas of care within unjust frameworks. The impact of health policy and funding on inequalities is highlighted by David Brennan and John Spencer in their account of the deterioration in dental health among older people associated with the loss of public dental programs in the late ’90s. There is some good dental news from Anne Sanders: most of us – unlike our parents – are ver y unlikely to lose all our teeth. Lawrence Lam’s Brief Report proposes a new approach to measuring the impact of premature death based on loss of productive years of life. In a Point of View, Gavin Mooney’s reflects on possible public health lessons for Australia from the history of South Africa. Phyll Dance and colleagues describe a successful process to analyse the needs for aged care ser vices for Indigenous people in the ACT, including the implementation of change. Public health action is the core of public health, demonstrated in this issue by the description by Trang Vu and colleagues of the costs and benefits of improved infection control in the prevention of variant Creutzfeldt-Jakob disease in Australia, Paul Dietze and colleagues’ description of characteristics of non-f atal opioid overdoses attended by ambulance services in Australia and a report of the incidence of hepatitis C among injecting drug users on opioid replacement therapy, by Richard Hallinan and colleagues. John Toumbourou calls for ethical guidelines on the vexed question of compensation for research par ticipants. Finally, the friends and colleagues of the late Jill Cockbur n remind us of her great contributions to public health research and practice. This issue, as the last for 2004, contains a full author and subject index, as well as a list of our reviewers for the year. 508 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH 2004 VOL. 28 NO. 6 More challenges for public health in fight against poverty Julian Disney National Chair, Anti-Poverty Week, and Director, Social Justice Project, University of New South Wales Public health initiatives have historically played major roles in preventing or reducing poverty and social injustice, both in Australia and overseas. This applies especially to meeting basic needs such as safe water, sanitation, nutrition and primar y health care. But major challenges remain and new ones are emerging. Within Australia, there can be little doubt that the highest priority is to improve the health of Indigenous people. For example, despite living in a relatively wealthy country their life expectancy is about the same level as applies in Bangladesh. Better opportunities to study, work and enjoy good housing could substantially improve their overall health outcomes. But their ability to take advantage of any such opportunities can be drastically affected by ill-health arising from earlier lack of health care or by the prevalence of illness and early death among relatives. Despite our allegedly successful economy, homelessness and unemployment remain major causes and consequences of pover ty, hardship and injustice in Australia. On any given night about 100,000 people are homeless and 100 families with children are turned away from refuges. There are more than half a million jobless families and more than 100,000 people who have been unemployed for more than 12 months. The real level of unemployment is about double the off icial rate when account is taken of the exceptionally high proportion of par t-time employees who want more work and the number of people who have gone on a disability or sole-parent pension because they cannot f ind work. The linkages between unemployment, homelessness and ill- health are widely acknowledged. There is less recognition, however, of the health problems arising for workers and their families from big increases in job insecurity and overwork during the past 20 years or so. Australia ranks very poorly in these respects by comparison with almost all other developed countries. The resulting incidence of severe stress and relationship breakdowns is being aggravated by inadequate public investment in transpor t, child care and other measures to help combine work with family responsibilities. Other special concerns arise from large increases over recent years in the number of one-adult households as a consequence of changing attitudes towards mar riage, less secure employment, higher house prices and greater life expectancy. Sole-parent families tend to have especially high levels of f inancial hardship and stress, and to be more economically vulnerable in the event of ill-health. Older people who are living alone are also especially at risk. The apparently inexorable g rowth in the number of one- adult households has substantial implications for health services and outcomes in coming decades The levels of pover ty and hardship will almost certainly worsen within the next few years as the realities of Australia’s economic circumstances begin to be felt. While our governments have about the lowest levels of debt among developed countries, our levels of corporate and household debt are higher than almost all of them. We have been living far beyond our means and, among other things, competitively bidding up house prices to levels that are depriving an increasing proportion of the population from the security of home ownership in times of f inancial adversity, ill- health or frailty. These problems have been exacerbated by poor economic policies, including taxation reform, on the par t of both Commonwealth and State Gover nments. Many people who are concerned about pover ty and hardship regard close consideration of these issues as being beyond or beneath them. Yet some of the current policies have fundamentally adverse effects on both the incidence of hardship, including ill-health, and the availability of public and private resources to ameliorate it. This applies, for example, to the suppl y of secure and adequately remunerated work, access to affordable housing and health care, and the availability of informal family support. Poverty and severe hardship is, of course, a more severe and widespread problem in many other countries. Substantial improvements have been achieved in countries such as China and India during the past decade or two but many African countries, in particular, have experienced either deterioration or no significant improvement Within our own neighbourhood, Indonesia and Papua New Guinea have especially severe levels of poverty and several other countries are experiencing rapid increases in AIDS- related problems. Many of the improvements in developing countries during the past 50 years or so have stemmed largely from public health initiatives. They include greater proportions of people having access to safe water, sanitation, basic nutrition and essential vaccination. As a result, considerable progress has been made in relation to maternal and child mortality, life e xpectancy, restriction of infectious diseases and other key concerns. They have been accompanied, and often assisted, by notable improvements in the availability of basic education, including a reduction in discrimination against education of girls. Never theless, more than two billion people still lack adequate sanitation. At least one billion people have incomes below $US1 a day. More than 800 million people are under-nourished and more than 100 million young children are not receiving primar y education. Life expectancy is falling substantially in several Editorials Journal contact details Mail: Australian and New Zealand Journal of Public Health, PO Box 351, North Melbourne , Victoria 3051. Street deliveries: c/- SUBStitution Pty Ltd, 1st Floor, 484 William Street, Melbourne, Victoria 3003. Phone: (03) 9329 3535 Fax: (03) 9329 3550 E-mail: anzjph@substitution.com.au 2004 VOL. 28 NO . 6 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH 509 Editorials African countries principally as a result of AIDS, for which fatality rates around the world are often closely linked with pover ty. In 2000, a unique UN summit of heads of gover nment led to the adoption of eight Millennium Development Goals (MDGs), most of which involve specific numerical targets to be achieved by 2015. They include, for e xample, reductions of at least two- thirds in child mortality, three-quarters in maternal mortality, and one-half in the proportions of people who lack access to safe water or suffer hunger. They also include halving the proportion of people with incomes below $US1 a day, achieving universal access to primary education, and reversing the spread of HIV/AIDS and malaria. The Australian Council of Social Service and Australian Council for Overseas Aid played signif icant roles in lobbying at the UN over many years for adoption of the MDGs. They did so in the belief that among the vast ar ray of internationally agreed targets, a small number of specific and measurable tar gets that are ambitious but not wildly unrealistic should be agreed upon as top priorities for action. It was recognised that most developed countries would already have achieved the goals, although not perhaps within some groups (re grettably including Indigenous Australians). But it was hoped that those countries, and international organisations such as the World Bank and IMF, would make specific commitments to help other countries achieve them. Within the Asia-Pacif ic region, the UN estimates that at present only two of the targets are likely to be achieved by 2015. They relate to improvements in income and in girls’ access to education. The targets that are regarded as unlikely to be achieved include those relating to child and maternal mor tality rates and access to water. In Africa, it is unlikely that any of the targets will be achieved on time. Yet most rich countries of the world continue to f all far short of the agreed target for provision of overseas aid and continue to impose economic policies in areas such as trade and taxation that actively discriminate against poorer countries. Many Australians in the pub lic health field have made and continue to make outstanding contributions to the fight against poverty and hardship at home or abroad. Never theless, much remains to be done and during the next decade the international economic environment may become less conducive to progress (except for major emerging powers such as China, India, and perhaps Brazil). The f ight to achieve greater emphasis on reducing poverty and social injustice will not be easy. The voices and actions of many concerned Australians will need to spread beyond their established fields of expertise to include key underlying causes of hardship, especially in economic policy. They will need to go beyond their accustomed circles in order to join people with whom they may have little in common e xcept an active or awakeable sense of fair ness and compassion. This need motivated the recent establishment of an annual Anti- Pover ty Week in Australia to highlight problems of poverty and severe hardship and to strengthen efforts to address them. It is concer ned with poverty both at home and abroad and is held in mid-October each year to coincide with the UN’s International Anti-Pover ty Day (17 October). The special week was established in the belief that most Australians are more concer ned about poverty and hardship than is commonly recognised by political and economic pundits. It aims to encourage people to demonstrate this concern, and the breadth of the general constituency for action, by organising their own local or regional activities on whatever par ticular issues they wish. Anti-Pover ty Week deliberately does not adopt any of ficial policies of its own or require proposed activities to be submitted for approval. Its organising principle is “let a thousand flowers bloom”. In its first two years, the week has g rown to involve more than 80 different events around Australia, many of which are in outer suburbs, regional cities and country towns. Special efforts are being made to encourage par ticipation by people whose main interests are in health and education. The consequences of pover ty are often especially damaging in these areas and preventive or remedial action can be particularly effective. They also involve many articulate and resourceful people whose voices could augment substantially the small number of social workers, church leaders and academics who tend to be seen as the core of anti-poverty advocacy. When carefully and dispassionately analysed, the recent federal election results are not inconsistent with the view that most Australians care about pover ty and social injustice. But they do emphasise the need for the type of broad and inclusive outreach beyond traditional enclaves and constituencies that the week seeks to develop. Sources For further information about Anti-Poverty Week, see www.antipoverty week.org.au In relation to poverty and related hardship in Australia, see Senate Community Affairs Reference Committee, A Hand Up not a Hand Out (Senate, Canberra, 2004); Australian Institute of Health and Welfare, Australia’s Welfare 2003 (AIHW, Canberra, 2003); Australian Bureau of Statistics, Measures of Australia’s Progress 2004 (ABS, Canber ra, 2004) ; R. Tiffen and R. Gittins, How Australia Compares (Cambridge University Press, Sydney, 2004). In relation to international poverty and related hardship, see the United Nations Development Program, Human Development Report (UNDP, New York, 2004); United Nations Economic and Social Commission for Asia and the Pacif ic, Promoting the Millennium Development Goals in Asia and the Pacific (UN, New York, 2003). 510 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH 2004 VOL. 28 NO. 6 Editorials Caring for detained asylum seekers, human rights and bioethics Deborah Zion Faculty of Medicine, Monash University, Victoria, and Co-editor of Monash Bioethics Review What is our innocence? / What is our guilt? All are naked / None is safe (Marianne Moore) Michael Hall, a nurse working first at Curtin detention centre and then on Christmas Island, was ask ed to escort two pregnant women to the mainland. They were being forcibly separated from their families, including their other children, to be taken to the mainland to have their babies. Their families were not allowed to accompany them because once on the mainland they could apply for refugee status. The women would not do so alone because they wished to maintain the family unit. They were also not infor med of their legal rights. Hall refused to escort the women on the grounds that he found the practice ethically unacceptable. 1 His stance raises many issues concer ning the relationship between medical ethics and human rights, and tests the limits of professional obligation when just systems are not in place.2 The psychiatrist Louise Newman has characterised the dilemma as “an intrinsic conflict between the desire to provide appropriate care, and the compromising of this by supporting a pathological system”.3 It is one example of the problem of ‘dual loyalties’, where healthcare professionals experience a “clinical role conflict between professional duties to a patient and obligations, express or implied, real or perceived, to the interests of a third party such as an employer, insurer or the state”.4 Issues related to dual loyalty conflicts vary considerably. The most serious and obvious example relates to healthcare providers’ direct involvement in torture, 5 a practice that directly opposes medicine’s primary aim to “protect and promote health”.6 However, in situations where doctors and nurses are also disempowered, some argue that there may be an obligation to minimise harm. A doctor may believe that his presence may actually lessen the level of harm inflicted on the victim during violent interrogation and so may feel an obligation to be present. The problem of professional ethical practice in cor rupt political environments is also por trayed by Jane Steere and Terence Dowdall in their description of working as psychologists in South Africa during apartheid. The ethical complexities inherent in trying to treat mental illness under such a regime were exacerbated by the fact that the broader social system in which they had to work violated their profession’s ethical principles, leaving them with the dilemma of providing either no treatment or treatment that they considered to be unethical.7 The issue of wrongdoing by involvement with an unjust institution is fundamental to an analysis of Hall’s dilemma and many other cases where doctors, psychologists and nurses have tried to treat asylum seekers held in detention centres. These include the forced treatment of hunger strikers and returning children suffering from mental illness to detention or keeping them separated from their families. For those committed to healing, any course of clinical action in these circumstances does not ser ve the best interests of the patients in question, who remain imprisoned for long periods, often separated from family members. Their distress, anxiety and depression can be seen as normal reactions to the terrible circumstances in w hich they f ind themselves, for w hich the most effecti ve treatment is the re- establishment of liberty and other basic rights.8 The Dutch psychiatrist Annemiek Richters elucidates the problem when she states that: ... for asylum seekers and refugees, mental disorders characterised by standardised psychiatric diagnosis may often be better described as normal reactions to abnormal political, social and cultural situations. As physical integrity cannot withstand the dissolution of the social personality, it is at the le vel of the political, social, and cultural that healing should occur. 9 The problem of ‘dirty hands’ The dilemma f aced by Michael Hall is an example of what Stephen de Wijze refers to as the problem of ‘dirty hands’. De Wijze suggests that when a person with the intention of acting morally has to choose between the lesser of two evils because of the immoral acts or projects of others, he suffers as both a perpetrator and a victim.10 He states: ... by being forced to engag e in the evil projects of others, an agent suffers the violation of her moral autonom y and selfhood. By participating in ‘dirty acts’, the agent is changed, morally speaking, by doing evil (having intentionally caused the evil circumstances to persist) and her victims are changed by suffering evil. (p 217) How can we think about Hall’s refusal to continue to provide care to the women in detention? Does participation in an obviously unjust and harmful system validate his refusal? Is this the central ethical question that we need to consider and, if not, what other ethical course of action is open to Hall and those who f ind themselves in similar situations? Medical ethics and refusing to treat Recent accounts of healthcare workers’ obligations and refusal to treat in the bioethics literature focus on the safety of the healthcare work er on the one hand, and upon conflicts of conscience on the other.11 When personal safety is an issue, there is some consensus that it is reasonable to expect doctors and other healthcare professionals to take on some personal risk, although there is also recognition that healthcare institutions must provide means to ensure the physical safety of such workers. Professional issues involving conflict of conscience are more problematic and take several forms. For example, a professional may be bound to perform tasks that she finds personally morally offensi ve, while recognising their importance if a just society is to continue. A doctor might be obliged to keep a patient on life support that he knows will be of 2004 VOL. 28 NO . 6 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH 511 little use and is taking up valuable resources because he has inherited a duty to prolong life under most circumstances and believes that such a duty is just. Hall’s dilemma is dif ferent again, as he is being required to support, through his actions, a separation that he believes to be both unjust and harmful. To ask how patient autonomy can be respected in such a situation draws us away from bioethical discussions that focus on decontextualised encounters between doctors and patients, and forces us to consider the important connection between autonomy and freedom. Protecting autonomy: two bioethical accounts Respect for the decisions made b y rational patients is a fundamental component of respect for autonomy, and is the cornerstone of Western bioethics. The view of autonomy most commonly in use by healthcare practitioners relies on principalism, as set out in Tom Beauchamp and James Childress’ work, Principles of Biomedical Ethics.12 According to this model, respect for patient decision-making is achieved and facilitated through maintaining conf identiality, providing information and maintaining a high standard of truthfulness about treatments and their outcome. Howe ver, Tom Faunce has suggested that the principalist approach is essentially isolationist. By this he means that the “... approach presents these principles as arriving like some deux ex machina rather than evolving ... from foundational social and professional virtues”.13 There have been many critiques of the principalist view of autonomy, and its lack of analysis in which choices are made. In response to such criticisms, Susan Sherwin, Anne Donchin and Chris MacDonald have developed a different way of thinking about autonomy, sometimes referred to as ‘relational autonomy’. This view relies upon an idea of autonomy as socially dependent.14 Rather than imagining an autonomous person as free from constraints, they suggest that an autonomous person is deeply involved in relationships with others, whose acts f acilitate her forming and fulf illing her own goals.14-16 Susan Sherwin suggests that for autonomy to have value, certain social conditions must be in place that provide meaningful options. These conditions should be embedded in both personal and political supportive structures.15 Autonomy, therefore, is not a simply a matter of preserving negative rights to non-interference.14 The principalist vie w of autonomy seems to have little application in Hall’s case. Even if Hall observed all the rules that facilitate autonomy, the women concerned were so constrained that the term itself seems meaningless. The second, or ‘relational’ view of autonomy, is slightly more illuminating. On this view, the ethical standing of Hall’s actions in protecting the already limited autonomy of the women rests on a powerful but simple question: what do the women and their families themselves want? If they found Hall’s presence to be of value, especially in the light of the rest of their treatment, and they wished for his assistance, there may be a case to be made that he should indeed have accompanied the women. If, on the other hand, the families ask ed him to take a stand, his refusal can be seen as an act of advocac y. However, it is clear that the women in question did not have suff icient options to determine a meaningful life course. Thus discussions of autonomy – even relational autonomy – in reference to asylum seekers in detention has a somewhat hollow ring, and illuminates the inadequacies of bioethics when divorced from a discussion of human rights and political freedoms.15,16 The importance of social justice in discussions of bioethics has a relatively shor t but important histor y, and developed rapidly in relation to clinical research and HIV/AIDS in de veloping countries, and focused on the issue of autonomy and infor med consent in this setting. Many commentators suggested that relying on a view of autonomy based only upon the subjects’ ability to make rational decisions with little or no anal ysis of the kinds of choices, freedoms and rights available to those involved, rendered the concept of autonomy meaningless. The political philosopher Joseph Raz suggests that autonomous action must be based upon “an adequate range of options to choose from” (p 373).17 Raz is not refer ring to the numbers of options, but what these options actually consist of. He gives two examples that demonstrate just how numbers of options alone are meaningless in securing or promoting autonomy. The first story concer ns a ‘Man in a Pit’, whose choices are limited to “whether to eat now or a little later, whether to sleep now, or a little later, whether to scratch his left ear or not” (p 374).17 His second example concer ns a ‘Hounded Woman’ who spends her whole life on a desert island, trying to escape a carnivorous creature which is trying to devour her. Raz suggests that while both these subjects have choices, they cannot be called autonomous, for “... one has only tri vial options to choose from ... The other person’s predicament is the opposite one. All her choices are potentially horrendous in their consequences” (p 374).17 Refocusing bioethics In their recent analysis of human rights, social justice and bioethics, Paul Farmer and Nicole Gastineau Campos ask: “If access to health care is considered a human right, who is considered ‘human enough’ to have that right?” (p 249)18 They call upon those involved in healthcare practice and in bioethics to refocus discussion on the relationship between freedom, social justice and health.19 How might an analysis that begins with these ideas elucidate the dilemmas faced by healthcare professionals acting within an unjust framework? Of primary importance is the idea that public health and healthcare systems are unquestionably political.20 As Paul McNeill states: [Public health] is political in the broad sense by being concerned with a group of interests within a community that may be competing with other interests. It is also political in the particular sense of being involved in po wer and authority, either in the exercise of authority or in reaction to those who exercise it, and thus engaged actively in issues of politics and government. (page 495)20 Editorials 512 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH 2004 VOL. 28 NO. 6 McNeill suggests that the correct ethical response for dilemmas like Michael Hall’s is advocacy and political action.21 If we consider Hall’s decision in the context of his witnessing and publishing accounts of inhumane treatment, we also see him involved in an act of advocacy that goes be yond the ethical predicament of whether or not to accompany the women in his care. The importance of collective action There is, in the recent history of public health, a model for the way in which collective political action can strengthen freedom and expand the numbers of choices that are made availab le. The advent of HIV/AIDS in Australia, for example, led to gay community-based action that changed the way in which HIV prevention and research was carried out, and the means through which drugs were made available to desperately ill patients. Early in the epidemic, many HIV-positive, gay community- attached men, particularly in Melbourne and Sydney, organised infor mal means through which early HIV/AIDS therapeutic trials were subver ted and challenged. The gay press, particularly the Sydney Star Observer, also provided challenging commentary concer ning HIV/AIDS treatments.22 Gay community-attached, HIV-positive men also started to circulate newsletters specif ically dedicated to empowering other people living with HIV and AIDS, in which they advocated a philosophy of empowerment and active partnership with the medical profession.23 AIDS councils were established in all Australian states initially run by volunteers, with strong connection to gay activist politics. 24 These councils went on to form an important part of the public health bureaucracy and mobilised other community groups. This, in turn, profoundly influenced both research and treatment, especially the insistence that promising dr ugs would be made available to those who needed them through compassionate access schemes, that the development of treatments w as consistent with the needs of affected communities, and that those most affected by the disease would enter into research partnerships with clinicians. Conclusion It is undeniable that collective action by medical colleges and associations enhances eff icacy and lessens the burdens on individuals, thus increasing the possibility for effective and ethical healthcare for asylum seekers. Another important issue relates to the problem of working in unethical and unjust conditions, and the effect this has upon the inte grity of the healthcare provider’s “moral autonomy and selfhood”.10 In his recent commentary on the issue of torture in Abu Ghraib prison, Rober t Jay Lifton describes the acculturation process that creates “atrocity-producing situations”,25 in which ordinary people begin to engage in acts that they would, in other circumstances f ind morally repugnant. In the case of providing healthcare in a detention centre, engaging with other healthcare professionals could facilitate the development of collecti ve ethical approaches, provide emotional support, and make possible strategies through which professional guidelines were backed up with a blueprint for action.26 Finally, collective engagement might provide a just environment with which nurses and doctors would have frequent contact, in order to keep at bay the normalisation of a world in which human rights violations are commonplace. Acknowledgements The author wishes to acknowledge ongoing discussions with Professor Sandy Gifford, Centre for Refugee Health, Latrobe University, and Jo Szwarc from the Victorian Foundation for Survivors of Torture, which have contributed to this article. References 1. Hall M. Frontline nursing in detention, Aust Nursing J 2004;11(7):32-3. 2. Mooney G. Pub lic health, political morality and compassion. Aust N Z J Public Health 2002;26:201-02. 3. Loff B. Detention of asylum seekers in Australia. Lancet 2002;359:792-3,793. 4. Physicians for Human Rights, Dual Loyalty & Human Rights In Health Professional Practice; Proposed Guidelines & Institutional Mechanisms, http:/ /www.phrusa.or g/healthrights/dual_loyalty.html 5. Miles S. Abu Ghraib: its legacy for military medicine. Lancet 2004;364:725-9. 6. Zwi A. The political abuse of medicine and the challenge of opposing it. Soc Sci Med 1987;25(6): 649-57. 7. Steere J and Dowdall T. On being ethical in unethical places: Dilemmas of South African clinical psychologists. Hastings Cent Rep 1990;20(2):11-15,13. 8. K outroulis G. Detained asylum seekers, health care and questions of human(e)ness. Aust N Z J Public Health 2003; 27:381-4. 9. Richters A. When ethics, healthcare, and human rights conflict: Mental healthcare for asylum seekers. Camb Q Healthc Ethics 2002;11(3):304-18, 312-3. 10. De Wijze S. Defining evil: Insights from the problem of ‘dirty hands’. Monist 2002;85(2):210-38, 216. 11. Arras R. The fragile web of responsibility: AIDS and the duty to treat. Hastings Cent Rep 1988;18(2):10-20. 12. Beauchamp T and Childress J. Principles of Biomedical Ethics, 3r d edition. New York: Oxford University Press, 1989. 13. Faunce T. Developing and teaching the virtue-ethics. Foundations of healthcare w histle-blowing. Monash Bioeth Review 2004;23(4): in press. 14. MacDonald C. Relational professional autonomy. Camb Q Healthc Ethics 2002;11(3),282-9, 282-3 15. Sherwin S, A relational approach to autonomy in health care in Sherwin S (ed.) The Politics of Women’s Health: Exploring A gency and Autonomy. Philadelphia: Temple University Press, 1998. 16. Donchin A, Reworking autonomy: Tow ards a feminist perspective, Camb Q Healthc Ethics 1995;4(1):44-55. 17. Raz J. The Morality of Freedom. Oxford: Clarendon Press, 1986. 18. Farmer P, Gasineau Campos N. New Malaise: Bioethics and human rights in the global era. J Law Med Ethics 2003;32(2):243-51. 19. See also Benatar S, Daar A and Singer PA. Global Health ethics: the rationale for mutual caring. International Affairs 2003;79(1):107-38, p.108. 20. McNeill P. Pub lic health ethics: Asylum seekers and the case for political action. Bioethics 2003; 17(5-6): 487-502. 21. This suggestion is based upon the work of Callahan C and Jennings B. Ethics and public health: forging a strong relationship. Amer J Public Health 2002;92:169-76. 22. Ariss R. Against Death. The Practice of Living With AIDS, Amsterdam: Gordon and Breach Publishers, 1997, p 78. 23. See for e xample, Willett G. Living Out Loud. A History of Gay and Lesbian Activism in Australia, St Leonards, NSW: Allen and Unwin, 2000. Kippax, S, Crawford J, Connell R, Dowsett G, Watson L, Rodden P, Baxter D and Berg R, The importance of gay community in the prevention of HIV transmission: A study of Australian men who have sex with men in Aggleton P, Davies P and Hart G (eds.) AIDS. Rights, Risk and Reason, London: The Falmer Press, 1992. Kippax S, Connell R, Dowsett G and Crawford J, Sustaining Safe Sex; Gay Communities Respond to AIDS, London: The Falmer Press, 1993. 24. Woolcock G and Altman D. The largest street party in the world in Adam B, Duyvendak J and Krouwel A (eds) The Global Emer gence of Gay and Lesbian Politics, Philadelphia: Temple University Press, 1999, 326-44, 336. 25. Lifton RJ. Doctors and tor ture. N Engl J Med 2004;351(1):415-6, and Conditions of atrocity. The Nation, 31/5/2005. 26. Rogalla B. Nursing behind razor wire: A question of ethics, Aust Nurs J 2001;8(9):21. Editorials 
work_633kyswbwrfnxptgqmgi26vamy	----	Tilburg University Growing justice Barendrecht, J.M. Publication date: 2009 Document Version Early version, also known as pre-print Link to publication Citation for published version (APA): Barendrecht, J. M. (2009). Growing justice: Justice policies and transaction costs. (TISCO Working Paper Series; Vol. 009/2009). Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1475201 General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. apr. 2021 https://research.tilburguniversity.edu/en/publications/14f47850-af59-4af7-8faa-8eb70ee6793a http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1475201 ��� � TISCO WORKING PAPER SERIES ON CIVIL LAW AND CONFLICT RESOLUTION SYSTEMS Growing Justice: Justice policies and Transaction Costs Maurits Barendrecht Tilburg University, Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO), International Victimology Institute Tilburg (Intervict), Tilburg Law and Economics Centre (Tilec); Hague Institute for the Internationalisation of Law (HiiL) j.m.barendrecht@uvt.nl TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 009/2009 September 18, 2009, Version: 1.0 & Tilburg University Legal Studies Working Paper No. 013/2009 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=1475201 ��� � Maurits Barendrecht1 Growing Justice: Justice Policies and Transaction Costs Abstract This paper reviews the literature on policies aiming to improve the rule of law and the operation of a legal system. It takes a bottom up perspective of clients seeking access to justice and uses transaction costs on the market for justice as a criterion to evaluate justice policies. Most justice is created through ‘justice transactions,’ including informal help from friends, legal advice, information about law, ADR services, other forms of informal justice, and adjudication. Such transactions are seriously hampered by three major transaction cost problems, however. Justice policies include codification, setting up courts and reforming them, financing of courts, legal aid, ADR, developing rules of procedure, and regulation of the legal profession. The transaction cost perspective explains why many traditional justice policies do a poor job to increase access to justice or to diminish the costs of civil justice. More promising justice policies enable justice to emerge bottom up, in the interactions between clients and providers of justice services (microjustice, legal empowerment). These policies focus on the information needs of disputants, low cost default procedures, choice for plaintiffs, accountability towards clients, gradual, needs-based formalization of legal relationships, and strengthening informal compliance mechanisms. 1 Helpful comments on an earlier version were provided by Martin Gramatikov, Machteld de Hoon, Jan Smits, Jin Ho Verdonschot, Ben Vollaard, and workshop participants at the Hague Institute for Internationalization of the Law (17 april 2008) and Amsterdam Centre for Law and Economics (18 april 2008). ��� � Table of Contents I. INTRODUCTION........................................................................................................................... 4 II. APPROACH ................................................................................................................................ 5 A. JUSTICE POLICIES ...................................................................................................................... 5 B. JUSTICE NEEDS .......................................................................................................................... 6 C. JUSTICE TRANSACTIONS ............................................................................................................ 7 D. TRANSACTION COSTS OF JUSTICE SERVICES ............................................................................. 8 III. LETTING DISPUTANTS ENTER A COOPERATIVE PROCEDURE ............................ 11 A. MARKET ANALYSIS ................................................................................................................. 11 B. CURRENT INTERVENTIONS BY STATES .................................................................................... 13 1. Reducing the Rewards of Continued Conflict......................................................................... 13 2. Judgments by Default ............................................................................................................. 13 3. Stimulating Mediation and Conciliation ................................................................................ 14 C. PROMISING POLICIES ............................................................................................................... 15 1. Social Norms and Unilateral Pledges to Deal with Conflict Cooperatively.......................... 15 2. Opening the Market for Neutral Dispute Resolution Services ............................................... 15 3. Regulating Ex Ante Dispute Resolution Agreements.............................................................. 16 4. Requiring Repeat-Players to Offer an Accessible Dispute System ........................................ 17 5. Co-opting Powerful Defendants ............................................................................................. 17 IV. THE MARKET FOR NEGOTIATION ASSISTANCE ....................................................... 18 A. MARKET ANALYSIS ................................................................................................................. 18 B. CURRENT INTERVENTIONS BY STATES .................................................................................... 19 1. Framing Disputes in Terms of Rights and Obligations.......................................................... 19 2. Legal Aid................................................................................................................................. 20 3. Mediation Aid ......................................................................................................................... 21 C. PROMISING POLICIES ............................................................................................................... 21 1. Education in Integrative Negotiations and Conflict Management......................................... 22 2. Economies of Scale in Communication and Negotiation Advice ........................................... 22 3. Structuring Settlement Negotiations ....................................................................................... 23 V. SUPPLYING INFORMATION ABOUT FAIR SOLUTIONS ............................................ 24 A. MARKET ANALYSIS ................................................................................................................. 24 B. CURRENT INTERVENTIONS BY STATES .................................................................................... 25 1. Codification ............................................................................................................................ 25 2. Precedents............................................................................................................................... 27 3. Supporting Law Faculties at Universities .............................................................................. 27 C. PROMISING POLICIES ............................................................................................................... 28 1. Improving Incentives to Generate Guidelines ........................................................................ 28 2. Rulemaking through Intermediate Private Institutions .......................................................... 28 3. Removing Restraints on Rulemaking for Distributive Issues ................................................. 29 4. New Models for Sharing Rules ............................................................................................... 29 VI. DELIVERING THE OPTION OF A NEUTRAL DECISION ............................................ 30 A. MARKET ANALYSIS ................................................................................................................. 30 B. CURRENT INTERVENTIONS BY STATES .................................................................................... 31 1. Courts...................................................................................................................................... 31 2. Extensive Rules of Procedure ................................................................................................. 32 3. Protecting Clients and Monitoring Neutrals through Appeals .............................................. 33 4. Independence of Courts .......................................................................................................... 33 C. PROMISING POLICIES ............................................................................................................... 34 1. Simple, Low-Cost Default Procedures ................................................................................... 35 2. Accountability towards Clients............................................................................................... 36 3. Giving Plaintiffs Choice ......................................................................................................... 37 4. Terminating Unhelpful Approaches ....................................................................................... 38 VII. MAKING ARRANGEMENTS EXPLICIT AND ENFORCEMENT ................................. 39 ��� � A. MARKET ANALYSIS ................................................................................................................. 39 B. CURRENT INTERVENTIONS BY STATES .................................................................................... 41 1. Registrations of Identity.......................................................................................................... 41 2. Registrations of Property Rights ............................................................................................ 41 3. Default Rules for Contractual Relationships.......................................................................... 42 4. Enforcement by State .............................................................................................................. 42 C. PROMISING POLICIES ............................................................................................................... 43 1. Formalization As Is and Step by Step ..................................................................................... 43 2. Menus for Making Relationships Explicit .............................................................................. 44 3. Facilitating Compliance Mechanisms .................................................................................... 45 4. What Works............................................................................................................................. 45 VIII. COMPLEMENTARITIES .................................................................................................. 46 A. MARKET ANALYSIS ................................................................................................................. 46 B. CURRENT INTERVENTIONS BY STATES .................................................................................... 47 1. Legal System Reform: Law and Development ........................................................................ 47 2. Reforms in Developed Economies .......................................................................................... 47 C. PROMISING POLICIES ............................................................................................................... 47 1. Supply Chain Approach to Access .......................................................................................... 47 2. Monitoring, Accountability and System Ownership ............................................................... 48 3. Focus on Problem Categories ................................................................................................ 48 IX. CONCLUSIONS ....................................................................................................................... 49 I. Introduction One of the classical responsibilities of states towards their citizens is to establish the rule of law and to ensure access to justice. Governments do this by designing and enacting ‘justice policies’. Courts are created and maintained, public prosecution is set up, and the legal profession is regulated. Procedures are defined in codes of civil procedure, criminal codes are enacted that make clear which conduct is a crime, and contract law facilitates private transactions between citizens. Governments also subsidize courts and legal aid. If their legal system is criticized, they may introduce alternative dispute resolution, or reform legal aid, courts, civil procedure, and the tort system. This paper suggests a new way to evaluate such justice policies: by looking at their potential to reduce the transaction costs on what can be called the market for justice. Over the centuries, the actions taken by individuals to protect their rights have led to what we now identify as a legal system. Precedents, laws, contracts, property rights, and procedures were developed. It has become commonplace to expect the rule of law as something created and upheld by the state. If the justice is not accessible, or the rule of law is not established, it is the state that failed. But historically, it is not unrealistic to look at law as a by-product of people bringing their claims to advisers, lawyers, courts, kings, and politicians. The way people take action to protect their rights is therefore a good starting point for analyzing whether people get the legal protection they need. Let us thus look at the position of the client (plaintiff) who experiences a need for justice in a relationship to another person (defendant). Urgent justice needs may arise when crimes have been committed, or when problems arise in contractual relationships. Clients will then turn to friends, lawyers, or others for information and advice, and probably also to persons who can exert influence over their opponent. These people deliver a service to the client, which can be studied as a market transaction. Obviously, buying justice is not a straightforward transaction such as purchasing a car or obtaining a loan from a bank. Behind the need for justice, usually a conflict of interest with the defendant is looming. The defendant may not cooperate to delivery of a just outcome. What a just outcome is, may also be unknown. A lawyer, or even a judge, has interests that are not perfectly aligned with those of her clients. So clients have to monitor the performance of the lawyer and the judge, and should probably invest in means to ensure that they do ��� � their job. These extra costs that a client faces on his way to justice can be studied as transaction costs. In this paper, I use this transaction cost analysis to evaluate justice policies. Section II explains the approach in more detail. In Section III to VII, we follow the plaintiff who tries to obtain a just outcome. We distinguish five main types of justice services that help him on the way. These services enable the plaintiff to (1) meet the defendant in order to seek a cooperative solution, (2) communicate and negotiate (talk), (3) distribute gains and losses fairly (share), (4) decide on outcomes, and (5) stabilize the relationship with the defendant. For each type of justice services, we identify the sources of transaction costs that make them difficult to deliver to clients in a sustainable and affordable way (Subsection A). After this ‘market analysis’, we identify the most common interventions of governments on this justice market and investigate whether these are likely to lower the transaction costs (B). Thereafter, we discuss some possible alternative justice policies that have more potential to lower transaction costs and thus to improve the rule of law and access to justice (Subsection C). Section VIII discusses the transaction costs that arise because a legal system has to be more than its five constituent parts. In economic terms, there are complementarities between the five types of justice services. Thus, we obtain a broad picture of the market for justice and the way governments intervene. This leads to an overview of helpful and less helpful policies (Section IX). II. Approach A. Justice Policies Governments all over the world struggle with their justice policies. Legal services tend to be expensive; courts slow and, occasionally, unpredictable, or downright corrupt. In developed economies, budgets for legal aid and courts are limited. Lawyers have obtained extensive powers to self-regulate their profession, but governments are increasingly asked to review this regulation, because it may have a negative impact on competition, harm the interests of clients, and slow down innovation of legal services (Hadfield 2008). Justice policies are also high on the international agenda. The international community faces the problem of failing states, unable to deliver the basic stability that is implied in the rule of law. Human rights are another item: they may be recognized by states in treaties, but should also be guaranteed in the practice of ordinary lives. There is also a growing understanding that effective justice policies are key to economic development. Although the precise links are disputed, both policy makers and researchers agree that enforceable property rights, labor rights, and business rights help economies to grow and to distribute the benefits of economic growth more evenly (Kaufmann 2003; Buscaglia and Stephan 2005; Commission on Legal Empowerment of the Poor 2008; Haggard, MacIntyre et al. 2008; Kaufmann, Kraay et al. 2008). Access to justice is a precondition for this (Jensen 2002; Kaufmann 2003; Commission on Legal Empowerment of the Poor 2008). Most justice policies have a top down orientation. Rules are written down in constitutions, codes, and legislation. Then courts are set up, public prosecutors are appointed, and the legal profession is stimulated to organize itself. Once this is done, governments should maintain the resulting ‘legal system’. The rule of law literature agrees that this top-down implementation has not been very successful (López de Silanes 2002; Botero, La Porta et al. 2003; Golub 2003; Carothers 2006; Dam 2006; Hammergren 2007; Davis and Trebilcock 2008; Haggard, MacIntyre et al. 2008). Investments in formal legislation and institutions like courts do hardly result in actual protection of the rights of ordinary citizens or small to medium sized companies. There is abundant evidence that access to justice, either through the norms, lawyers and court of a formal legal system, or through informal ��� � arrangements, is insufficient in many places and in many situations (Rhode 2004; Yuille 2004; Fitzpatrick 2005; Commission on Legal Empowerment of the Poor 2008). Although some institutional economists argue that, historically, the rule of law has been first implemented for elites (North, Wallis et al. 2009), most scholars and politicians now place their bets on bottom up approaches. Civil society can create informal ways of protection that are more effective than the formal legal system, so they argue (Davis and Trebilcock 2008; Tamanaha 2009). Citizens should become legally empowered, or facilitated through microjustice when they face justiciable legal problems (Golub 2003; Van Rooij 2007; Commission on Legal Empowerment of the Poor 2008). What lacks, however, is a theory that can explain why these bottom up approaches might work, and which policies are more likely to succeed than others. The rule of law literature has not yet delivered a consistent theory behind interventions. It shows much conceptual debate about what the rule of law is (Ringer 2007; Tamanaha 2008), but much less discussion about the ways to make it happen. The assumption seems to be that systematic institution building is possible, if governments only would be able to decide which institutions they want. A part of the literature mentions sequencing as a problem, but this suggests again that these writers know what should be done, the issue merely being where to start (Carothers 2007). Once the top down perspective is changed for bottom up approaches, the lack of theory behind justice policies becomes even more problematic. The focus of attention now shifts to creating access to justice. But what type of justice do people need, and how can access to it be created? The literature on access to justice tends to distinguish five waves of access to justice reforms, oriented at supplying legal aid, public interest litigation, alternative dispute resolution, opening up the market for legal services, and better regulation of the legal profession (Cappeletti and Garth 1978; Parker 1999). This gives some indication of the shifting beliefs in what works to create access to justice, but does not explain why such approaches might work, or why some of them have failed. There are two common threads, however, and these I will pick up in this paper. First, the basic idea of access to justice expressed here is one of services provided to clients. As Landes and Posner have showed, lawyers, mediators, and even adjudicators like courts can be considered to be providers on the market for justice (Landes and Posner 1979). They are the ones who try to deliver fair outcomes to clients. Second, the reforms all seem to be oriented towards making this market work in a better way: by subsidies, by stimulating certain types of justice services, or by (de)regulating the market. Combining these threads, and adding a theoretical perscpective, I propose to evaluate justice policies acccording to their potential to lower transaction costs on the market for justice services. B. Justice Needs Justice needs can be defined as a need for protection by outside norms or interventions that structure the conduct of other persons (Barendrecht, Kamminga et al. 2008). When does such a need arise? Legal needs studies, in which a sample of the population is interviewed by researchers about their legal problems and ways to cope with them, have been conducted throughout the world (Curran 1977; American Bar Association 1994; Genn and Beinart 1999; Genn and Paterson 2001; Dignan 2004; Van Velthoven and Ter Voert 2004; Currie 2005; Coumarelos, Wei et al. 2006; Michelson 2007; Gramatikov 2008; Michelson 2008). These studies show consistent patterns of justice needs (Barendrecht 2008; Barendrecht, Kamminga et al. 2008). Demand for justice services is most urgent in three types of conflict, where the stakes are high and where people depend on others for their well-being. Personal security presents the most salient category of problems. People seek basic protection of their human rights, and try to protect themselves against violence, unlawful ��� � taking of property, and unlawful detention. Secondly, they enter long term relationships with substantial specific investments, such as family, work, land use, neighbor, and business relationships. These relationships have to cope with change. Because changes in circumstances, preferences, and abilities are difficult to predict, rights and obligations cannot be determined at the moment the relationship starts (known as the issue of incomplete contracts). Adaptation to change through negotiation is a necessity, but the parties are dependent on each other, because they invested in the relationship, and cannot walk away from it without leaving these investments behind. So some sort of neutral dispute system is necessary (Williamson 1987; Nooteboom 1992; Barendrecht 2008; Robson and Skaperdas 2008). Examples of conflicts in these long term relationships are inheritance issues, divorce, termination of employment, and problems regarding compensation for the use of land to be paid to owners. A third category of conflicts emerges from contracts between buyers and sellers, or from obligations of the bureaucracy to its citizens. Here, the issues are mostly what the plaintiff could expect (interpretation of contracts and of applicable regulation), how the defendant contributed to these expectations by giving or withholding information (duties to inform), and whether the defendant delivered goods or behavior that live up to the legitimate expectations of the plaintiff (Barendrecht 2009). The empirical studies cited above show that most conflicts are solved through negotiation. Conflict resolution can aptly be described as a negotiation process in which the parties try to achieve Pareto efficient outcomes (create value), and bargain about distributive issues (share value), but this process is complicated by the parties being dependent on each other. They cannot solve the conflict with somebody else if their negotiations fail, like they can go to another seller of a car if they fail to reach agreement on the price. Because of this bilateral monopoly, they need mechanisms to decide on the outcome if they cannot reach an agreement. This creates the need for justice services. C. Justice Transactions A first, intuitive understanding of justice services would probably distinguish two basic types: legal advice and neutral, third party interventions. But from the interdisciplinary literature on conflicts, dispute system design (Ury, Brett et al. 1988; Costantino and Sickles Merchant 1996; Menkel-Meadow 1996; Bendersky 2003; Barendrecht 2008; Bingham 2008; Bordone 2008; Barendrecht 2009), institutional design (Hadfield 2008) and legal procedure, five necessary and sufficient dispute resolution tasks can be derived. In essence, justice services help clients to perform these five tasks. For each of these five basic types of dispute services, basic technologies have become available. Task Description Basic technology 1. Meet Centralized forum for information processing in which both parties participate Make costs and benefits of participation for defendant higher than costs and benefits of fighting, appropriation, or avoiding 2. Talk Communication and negotiation Support integrative negotiation (interest based) 3. Share Distributing value fairly Supply information about fair shares (sharing rules, objective criteria) 4. Decide Decision making procedure Make option of a neutral decision available (at low cost) 5. Stabilize Transparency and compliance Supply tools to make arrangements explicit; Make costs and benefits of compliance higher than those of non-compliance Table 1 Necessary and Sufficient Elements of a Dispute System with Basic Technologies for Delivery (Barendrecht 2008). The plaintiff and the defendant have to meet somehow. Friends or lawyers may help a plaintiff to make meeting more attractive for the defendant. Mediators and lawyers can then help the parties to communicate and negotiate in a structured way. If they provide information about ways other people have settled similar disputes (norms, objective criteria), the plaintiff and the defendant can solve the distributive issues more easily. � � � Decision-making in the bilateral monopoly is facilitated by the availability of a low cost neutral decision, that provides an exit option for both parties. Stabilizing relationships is a matter of making expectations explicit and creating motivation to live up to the outcome. Formats for contracts and registrations, as well as strategies to induce compliance, can be supplied to serve these interests of clients. Dispute system design is still a young discipline, but there is a beginning of a common understanding of “what works” in order to perform these five basic types of services (Ury, Brett et al. 1988; Wall Jr and Callister 1995; Tyler 1997; Wall, Stark et al. 2001; Bendersky 2003; Bingham 2008; Bordone 2008; Barendrecht 2009; Wall Jr and Chan- Serafin 2009). These best practices can build on years of conflict research by social psychologists, economists, and socio-legal researchers (Barendrecht 2009). Negotiation and conflict resolution technology can deal with emotions and psychological barriers. Procedural justice satisfies the procedural needs of the parties. If norms for distributing value are unclear, suitable objective criteria can be developed. If justice is not achieved through negotiations and bargaining, a neutral third party can break the impasse, if necessary by giving a binding decision. If a powerful defendant does not cooperate, he can be forced to do so by increasing sanctions, rewards, and other incentives. We may probably assume that the basic justice technologies are now sufficiently developed. If justice is out of reach for many people, the cause is unlikely to be that justice providers do not know what to do for their clients, or face high costs of interventions. Although there are some exceptions, where interventions are indeed very costly, a major problem seems to be that clients and justice providers do not succeed in concluding suitable justice transactions. D. Transaction Costs of Justice Services Justice can only reach a plaintiff if there is a provider of justice services who is motivated to deliver suitable services to this plaintiff. Assuming these justice services cost less to produce than the value for the plaintiff, such transactions will take place, unless the costs of concluding the transaction are too high. Transaction costs analysis is usually applied to the broader economy. On the market for goods and services, buyers and sellers incur various costs of undertaking a transaction (Williamson 1981; Rao 2003). The parties have to search for suitable partners, inform themselves about the attributes of goods and services, and negotiate a contract. After the contract has been concluded, the buyer has to monitor the performance by the seller, and the seller has to ensure that the buyer pays the price. Transactions need some governance structure and this is costly to set up. Legal costs and other costs to resolve disputes are textbook examples of such transaction costs. Regulation of the market is sometimes necessary to prevent market failure, and where governments step in other rules are needed to diminish government failure. The costs of regulation, the costs of running the economic system, are also transaction costs. Legal advice, dispute resolution, and regulation are also services that have to be provided by people to other people, however. Plaintiffs conclude justice transactions with advisers, such as lawyers, and experts, or with neutrals, such as mediators, judges, neutral factfinders and arbiters. In the area of enforcement, police officers, bailiffs, and other government agents may have to be involved. On informal paths to justice, plaintiffs and defendants may consult friends, local leaders, and religious authorities. In case plaintiffs have to deal with powerful companies or individuals as defendants, they may have to convince other people with similar complaints to join the action. In order to put enough pressure on the defendant, thousands of people may have to join forces. These transactions can again be studied through the perspective of transaction costs. In a sense, this is thus a second order transaction cost problem. � � � Transaction costs of justice services include again the costs of information about suitable providers of justice services, the search costs, and the costs of negotiating the transaction (Rao 2003). For instance, a plaintiff will have to explain his problem to the lawyer, and the lawyer will have to decide on which conditions he will take the case. If a local leader is addressed, he will also hear the plaintiff, and then decide whether it is worthwhile for him to help the plaintiff. After the plaintiff has reached agreement with the provider of justice services that he will take some action, the plaintiff has to monitor the service provider and see to it that he delivers what he promised (Williamson 1981; Williamson 2005). Another type of transaction costs are the costs of running the part of the economic system that delivers justice services, These costs include the costs of coping with market failure and government failure. Market failure may arise from public goods, externalities, incomplete markets, and incomplete information. Government failure may also be caused by limited information, as well as by limited control over private market response, over bureaucracy, or over the political process (Stiglitz 2000). Each way of organizing transactions, either through the market or through goverments, has its costs and the challenge is to minimize these costs (Williamson 1999; Rao 2003; Brousseau and Raynaud 2006). Table 2 gives an overview of transaction cost problems that are likely to occur in justice markets (Barendrecht 2009). Each of the five types of dispute resolution services that a plaintiff needs, has its own characteristics that lead to certain transaction cost problems. Three transaction cost problems are most salient in these five justice markets. First, buying dispute services is difficult because two opponents are unlikely to agree on the kind of service they need. Disputants may experience psychological barriers that make it difficult to enter a cooperative procedure and often also have strategic reasons for not agreeing on a procedure. These coordination problems persist during the dispute resolution process. When courts or other neutrals decide disputes, they thus experience insufficient incentives from their clients to supply high quality and low cost procedures. A second source of high transaction costs is that dispute services partly consist of providing expertise. Such information tends to be difficult to sell for a profit because of its public good character. As a consequence, conflict management skills (integrative negotiation know how), objective criteria for settling distributive issues, and relationship formats (contracts) do not always reach the persons that need them most. Third, justice transactions tend to have a higher value if other justice transactions are also available. Negotiation assistance and neutral decision making by courts, for instance, work better if objective criteria for settling distributive issues are available. The incentives on defendants to solve conflicts cooperatively and to live up to outcomes typically come from the joint effects of monitoring, the value of reputation, the threat of informal sanctions, internal motivation, and formal enforcement. Many people have to cooperate to make this happen. These complementarities, network-effects, or connected transactions require an integrated approach (Barendrecht 2009). These major sources of transaction costs explain several important characteristics of justice markets. Although it would generally be most efficient if two disputing parties would consult one neutral agent, such transactions with mediators or arbiters are unlikely to occur. Instead, the parties tend to go to unilateral advisers, such as lawyers. Because the market for neutral assistance is likely to fail, the state steps in with a procedure in which the defendant is obliged to appear before a court. Transaction cost analysis also explains why legal services tend to be individualized. This is a business model that circumvents the public good character of information. Negotiation skills, conflict management know how, and knowledge about norms for distributive issues is hard to sell for a profit, because it can spread freely to other customers once it is sold. Furthermore, ���� � legal uncertainty is likely to occur: the market will not produce sufficient objective criteria for settling distributive issues. Finally, litigation and other forms of adjudication tend to be inefficient, because plaintiff and defendant are unlikely to agree on a procedure, and because of the connectedness between different justice services. Tasks Basic technology Sources of Transaction Costs Market reactions 1. Meet Make costs and benefits of participation for defendant higher than costs and benefits of fighting, or avoiding 1. Difficulties of concluding ex post dispute resolution agreements: - Psychological barriers - Strategic barriers 2. Cooperation between many people needed to organize sufficient incentives on powerful defendants to cooperate 1. Little demand for mediation, arbitration, and other tailor made neutral dispute services 2. Unilateral advice where neutral services would be more efficient 3. Demand for patronage (help from people who can influence the defendant) 4. Demand for checks and balances 2.Talk Support integrative negotiation (interest based) Information about negotiation and conflict management is public good 1. Insufficient supply 2. Business models for delivering expertise: - individualized advice - coaching client through process - taking over process from client - packaging information 3. Share Supply information about fair shares (sharing rules, objective criteria) 1. Information about fair solutions is public good 2. Providers of fairness information face pressure/criticism from all sides 1. Insufficient supply 2. Business models for delivering expertise (see above) 4. Decide Make option of a neutral decision available (at low cost) 1. Difficulties of concluding ex post dispute resolution agreements: - Psychological barriers - Strategic barriers 2. Insufficient incentives on neutral to provide efficient processes and fair solutions because of: - dependence on neutral - low frequency of transactions - uncertainty and complexity - monitoring difficulties. 1. Access to neutrals on markets is unavailable or unreliable 2. States provide neutrals 5. Stabilize Supply tools to make arrangements explicit; Make costs and benefits of compliance higher than those of non-compliance Information about contracting and making relationships transparent is public good Cooperation between many people needed to organize sufficient incentives on powerful defendants to cooperate 1. Insufficient supply 2. Business models for delivering expertise 3. Lack of enforcement, in particular against powerful defendants Supply Chain Approach Strengthen links between tasks Complementarities/connectedness between the five types of services Integrated business models for providing unilateral legal services, mediation and adjudication Table 2: Sources of Transaction Costs on Markets for Justice and Ways Markets Cope with Them (Barendrecht 2009) The following five sections explore how government interventions in the justice sector react to these transaction cost problems. For each of the five types of justice services, I first give an impression of the structure of the market. I describe the basic technology, discuss some best practices for delivering the services, and identify justice providers that are active on this market. Then, I summarize the transaction costs problems that occur on this market (Subsection A)? Next, current justice policies are discussed, taking their potential to diminish transaction costs as a criterion for evaluation (Subsection B). As many of these policies not seem to address these problems squarely, Subsection C identifies alternative justice policies that tackle the problems of transaction costs more directly, and that thus may be more promising. ���� � III. Letting Disputants Enter a Cooperative Procedure A. Market Analysis Managing a conflict in a cooperative way requires interaction between parties. A procedure or negotiation is unthinkable without some kind of information exchange (Shariff 2003). The parties require some kind of process where both of them are present and willing to communicate about the conflict: a room, or a tree under which to talk; written communication channels, or a webinterface. The first challenge for a plaintiff is to tempt the defendant to come to such a meeting place. The basic technology for letting the defendant (and the plaintiff) participate in cooperative dispute resolution is to make the costs and benefits of participation higher than the costs alternatives, such as fighting or avoiding the other party. The meeting place can be made attractive by being safe, close (low travelling costs), and giving the prospect of a solution with high value for the defendant. Letting disputants meet in order to solve a dispute cooperatively is difficult, Psychologically, one or both of the parties may suffer from loss aversion or overoptimism, and emotionally it may be hard to face the other party again. The parties may distrust the proposal of the other party to solve the conflict in a particular procedure, a phenomenon called reactive devaluation (Ross 1995; Barendrecht and De Vries 2006). Strategically it can be more attractive for the parties to avoid or postpone meeting, especially for a defendant who is better of now than he expects to be after resolution of the dispute. Landes and Posner called this the “submission problem” in the context of letting the disputants chosing a private judge (Landes and Posner 1979). Theoretically, a transaction aimed at solving the dispute through mutually agreed upon methods poses a bargaining problem. By agreeing on the procedure, the parties influence the outcome of the dispute (see, for the distributional effects of agreeing about institutions in general, Knight 1992). Bargaining failure is likely, because parties tend to do better if they take extreme positions, commit to earlier offers, or use delaying tactics (Muthoo 1999; Muthoo 2000; Mnookin 2003; Barendrecht 2009). The high transaction costs of concluding an agreement over the way to resolve a dispute have a major impact on the market for dispute services. They are probably the most significant reason why state interventions in this market are needed. If it was easy to solve disputes simply by buying dispute services, governments would probably not set up courts and legal procedures. Moreover, this transaction costs problem causes serious trouble on the market for alternative dispute resolution. Mediation and arbitration services are widely available, but demand for it is negligible, because it requires two parties who jointly decide to contract such a third party, which is unlikely to happen in case of a dispute (Barendrecht and De Vries 2006; Barendrecht 2009; Velikonja 2009). On the micro-level, plaintiffs respond to this problem in two different ways. These reactions create a lively market for unilateral legal advice, as well as an even more interesting demand for powerful ‘neutrals’ that can influence the defendant. These transactions are complicated and make life not always easier for the plaintiff. An agent such as a lawyer is in a slightly better position to solve a problem of how to meet with the opposing party than the client himself (Mnookin, Susskind et al. 1999). He may be more skilled in contacting the other party and inducing her to cooperate, as well as being less emotional and thus avoiding some psychological barriers to conflict resolution. But he cannot reduce reactive devaluation, over-optimism and loss aversion if he contacts the other party as an agent for the plaintiff. The strategic barriers to reaching an agreement over the dispute resolution process do not diminish because the agent is ���� � present. With a lawyer, it is still difficult to solve the second order bargaining problem. In this “second” dispute, over the way to solve the “first” dispute, the parties are still likely to put forward extreme offers, use delaying tactics, and commit themselves to positions. In many countries, the major reason a plaintiff uses a lawyer is probably that he is the one who can activate the court system. Hiring a lawyer may signal that court action is imminent, making the threat of court action more credible. But concluding a transaction with a lawyer also creates new transaction cost problems: How to incentivize him to obtain a speedy and high value solution to the dispute? How to prevent an arms race where both lawyers invest more and more in winning the dispute, creating work for each other? And a lawyer is most effective if he can threaten with a neutral intervention, which may be unavailable. An alternative for the plaintiff is to go to a person who can influence the defendant. People look for parents, bosses, clan leaders and government officials who can help them to get their way in relationships with others. Asking the powerful for help can be also be seen as a transaction. The powerful person offers his interventions, which will cost him an effort, and will probably want something in return: cash, support for his causes, or an increased reputation. The transactions between plaintiffs and powerful third parties have high transaction costs, because influencing a defendant is a highly context specific task, which is difficult to monitor. Moreover, the defendant may be influenced in a way that is undesirable. Therefore the demand for interventions from the powerful creates an additional demand for checks and balances on power. Task 1. Meet Description Centralized forum for information processing in which both parties participate Basic technology Make costs and benefits of participation for defendant higher than costs and benefits of alternatives such as fighting, or avoiding Best practices for dispute services/-transactions - Local meeting places or other channels of communication - Pre-mediation skills - Social norms to solve conflicts cooperatively - Enhance incentives that link to reputation of defendants to solve conflicts cooperatively - Option of default judgment Possible providers of services - First line legal aid (paralegals) - Friends and advisers - Community leaders - Mediators - Courts Sources of Transaction costs 1. Difficulties of concluding ex post dispute resolution agreements: - Psychological barriers - Strategic barriers (bargaining failure) 2. Cooperation between many people needed to organize sufficient incentives on powerful defendants to cooperate Market reactions 1. Little demand for mediation, arbitration, and other tailor made neutral dispute services 2. Unilateral advice where neutral services would be more efficient 3. Demand for patronage (help from people who can influence the defendant) 4. Demand for checks and balances Table 3 Market Analysis for Services that Assist Disputants with Meeting A third way to cope with the high transaction costs of meeting is to agree on a dispute resolution mechanism before a conflict arises (Landes and Posner 1979). Business partners, for instance, sometimes put an arbitration clause in their contracts. More complex dispute resolution agreements may provide for several stages of dispute management, prescribing first negotiations between the parties, followed by mediation, and, as a last resort, arbitration. Ex ante dispute resolution agreements work because the psychological barriers of reactive devaluation, loss aversion, and over-optimism are less prominent at the time the parties conclude a contract. As long as there is no actual conflict, the risk of bargaining failure regarding a conflict resolution clause is also lower. Both parties generally wish to ���� � minimize the costs of future conflict in their relationship, so they are quite likely to agree on a way to resolve possible disputes. Most agreements about a way to resolve future disputes are part of a contractual arrangement. This formalization process does not take place in many relationships, though. Most family, business, land use or neighbour relationships are not made explicit in a contract. Tort claims or claims against governments are seldom preceded by a contractual arrangement. Even if a written contract is reached, this opportunity to choose a dispute mechanism is not always used. Eisenberg and Miller found that only 20% of contracts between sophisticated business partners contained a dispute resolution clause (Eisenberg and Miller 2006). Often, one of the parties takes up the formalization process that produces dispute resolution clauses. Employers write employment contracts. Sellers and building contractors refer consumer disputes and building disputes to specialized neutrals. The problem with dispute resolution clauses in adhesion contracts is that there can be serious doubts regarding neutrality. Plaintiffs may be excluded from using litigation mechanisms that they wanted to use after the conflict arose, or may be confronted with an arbitrator who depends on a constant stream of cases from the defendant. These worries translate into an extensive debate, continuing before the courts, on whether arbitration clauses in adhesion contracts should be allowed or not (Ware 2004; Sternlight 2005; Brunet, Speidel et al. 2006; Sternlight 2007). B. Current Interventions by States The stage is set. High transaction costs of agreeing to meet and solve a dispute cooperatively shape the markets for justice. Plaintiffs go to unilateral advisers (lawyers), or to powerful peopls who can influence the defendant, unless they have concluded an ex ante dispute agreement, but that is unlikely. Let us now see how governments intervene in this area. Do they tackle the problem that two people in a dispute cannot agree on a suitable way to manage the dispute? Are these policies effective in reducing the transaction costs of such an agreement? 1. Reducing the Rewards of Continued Conflict An indirect response to the high transaction costs of meeting is to make other ways of solving conflicts, such as fighting, less attractive. Societies have social norms and legal rules that prohibit the use of violence by citizens. Besides lowering the costs of conflict, such rules make fighting less attractive as a way to solve the conflict. Cooperation thus becomes more likely (Hirshleifer 2000; Hirshleifer 2001; Posner 2003). Restraints on using some technologies of conflict, such as strikes or employee lock-out in labour conflicts, also makes cooperation more likely (Posner 2003) However, these policies do not diminish the transaction costs of meeting. They do not lower the psychological and strategical barriers to starting a negotiation process and jointly deciding on a procedure to cope with the conflict. Moreover, strategies that use other forms of power, such as threats to withhold essential goods to the other party (access to water, food, economic opportunities, or protection), are not affected by these rules. So powerful defendants still have many other options than sitting down with the plaintiff to reach a fair solution. 2. Judgments by Default Societies also developed procedures in which the defendant is forced to meet with the plaintiff. If he does not cooperate in the procedure by putting forward his views on the conflict when summoned, a default judgment will be issued against him. The basis for this judgment by default is usually the point of view of the plaintiff. So the decision will generally be unfavourable for the defendant, giving him a powerful incentive to ���� � cooperate. Ultimately, a defendant has to talk to the court, and thus it is more sensible for him to talk about the conflict with the plaintiff prior to that occasion. We should note, however, that this incentive to meet and talk only works if a plaintiff can credibly threaten to take the defendant to court. Poor plaintiffs may not be able to do this, especially if defendants know that they do not have the resources to sit through a civil court procedure. For governments, the costs of organizing a court system that is able to guarantee enforceable default judgments are substantial. A similar problem regarding access to a neutral decision may arise for public law enforcement. The administrative and other costs of criminal prosecution may be so high that the threat of an orderly criminal procedure is not credible anymore. Police officers, who can be seen as the plaintiffs in these procedures, may then choose to neglect crime, or resort to violence to fight it, because these options become a more attractive alternative for them. Finally, the incentive of a default judgment is still indirect. It is an incentive to appear in court and defend oneself against an accusation. In order to avoid this procedure, some defendants prefer to try settlement negotiations. There is no direct obligation to participate in such negotiations. 3. Stimulating Mediation and Arbitration Lately, governments have started to promote mediation as a way to solve legal disputes. Mediators have been trained and mediation programs have been set up. For international conflicts, diplomats from many countries are available to facilitate talks between the parties. Unfortunately, merely offering these services does not seem to substantially help in bringing disputants to the negotiating table. Mediation is hyped, but it solves a negligible proportion of disputes. Its main source of survival after 30 years of experimentation in the US and Europe is as an add-on to courts (Goldberg and Shaw 2007; Velikonja 2009). In court annexed mediation, judges refer some of their cases to mediation. Ex post mediation, agreed directly between the parties without a contract or a neutral person telling them they have to mediate, is still the exception. The same is true for arbitration (Landes and Posner 1979). Our analysis strongly suggests that the cause of this problem is not an insufficient supply of low cost mediation and arbitration services. In fact, helping other people to solve their disputes is psychologically rewarding work and many mediators offer their services. Mediation is also good value for money. Mediation services attract high satisfaction ratings and big majorities of users say they will use it again in future conflicts (Wall, Stark et al. 2001; Wissler 2004; Wall Jr and Chan-Serafin 2009). It is not, however, an answer to the high transaction costs of meeting, the psychological barriers to agreeing on a process to solve the conflict, nor the strategic barriers that are likely to lead to bargaining failure influenced by making mediation available. It is easy to see how the availability of mediation only tips the balance in favour of going to the meeting place in a limited category of cases. For the defendant, it makes meeting and talking a bit more attractive because it creates a friendly and private environment to discuss issues. Availability of mediation services at the meeting place also influences the expected outcome because the parties may then be able to create more value. If the parties already want to cooperate, it thus helps them. But availabilty of mediation does not really change the way value will be distributed. If the dispute is (mostly) about distributing value, and a neutral decision is not available for a reasonable price so that the expected outcome is still low for the plaintiff, mediation services are not likely to make a real difference and the plaintiff will not find it very ���� � attractive. In the words of Hazel Genn, one of the leading experts on mediation: “Mediation without a credible threat of judicial determination is the sound of one hand clapping” (Genn 2008). For the defendant, if his goal is to extract as much value from the distributive issues as possible, mediation services are not very interesting either. At the mediation table, he cannot as easily use delaying tactics, make extreme offers, commit to earlier offers, or hide information, although these are the strategies that lead to the best results in distibutive bargaining. As we will see in Section VII where complementarities are discussed, mediation services are far more valuable for both parties if they are delivered in the shadow of an easily accessible neutral decision. C. Promising Policies We discussed three government policies (prohibiting violence, threatening to issue default judgments, and making mediation available) that indirectly stimulate the parties in a conflict to meet. These policies do not directly tackle the problem, however. They do not lower the costs of jointly determining a way to solve the conflict. There may be policies or market solutions that make it easier to agree about a process to solve a conflict. 1. Social Norms and Unilateral Pledges to Deal with Conflict Cooperatively One such policy is instilling a social norm, or even imposing a legal rule, that parties in a conflict should meet and talk. If they cannot solve the conflict through negotiation, they should at least look for a process to solve the conflict, or to cope with it in a way that minimizes difficulties. That can be felt as an obligation. Social norms about the ways to deal with conflict exist in many cultures, communities, and organizations. Collectivist cultures tend to stress the need for harmony, and have less tolerance for other strategies such as fighting. Mediation by third parties is stimulated by social norms in many Asian countries (Wall, Stark et al. 2001). Chinese conflict management embodies “a culture of three”, in which it is preferred to have a third party present above solving conflicts in direct, confrontational negotiations. The third party can help persons with status to loose face, avoid the assertiveness necessary in direct conflict negotiations, help disputants to cope with emotions, and restore harmony (Jia 2002). Legal norms to meet and talk also exist. Many bar associations have at least a nominal rule that requires lawyers to attempt settlement before they bring a case to court. Conflict between employees and employers can be reduced by allowing employees and employer to organize themselves, and creating a setting in which they will trust each and negotiate (Posner 2003). A unilateral pledge to cooperatively solve conflicts is a possibility as well. The CPR pledge has been accepted by a number of U.S. companies. This policy statement obliges subscribing companies to seriously explore ADR in cases with other signatories before pursuing full-scale litigation. Such a pledge reduces the probability of bargaining failure regarding a way to process the conflict. Likewise, a government agency can commit itself to resolving disputes with citizens through direct and informal communication, and, if necessary, to negotiations assisted by a mediator. 2. Opening the Market for Neutral Dispute Resolution Services As we have seen, lawyers acting unilaterally for one of the parties may contribute to the dispute resolution process. This, however, has costs: clients and lawyers have dissimilar interests, and invoking lawyers increases the possibility of an arms race. Lawyers add additional levels of communication and thus complexity (Mnookin, Susskind et al. 1999). Folk wisdom is that lawyers are sometimes necessary, but should be avoided whenever possible. Lawyer services can be developed, however, that are less likely to increase transaction costs (Lande 2005; Lande 2008). Lawyers may empower the client to meet and talk, ���� � lowering the costs of confrontation for him, if they work as a coach, staying in the background, helping the client to communicate and negotiate. Another possibility is to let a neutral person set up a pre-mediation process, in which the option of making an agreement about a way to cope with the conflict is discussed with both parties. Paralegals and other first line legal aid providers often try to contact the other party on behalf of their clients in order to get the communication going. Facilitation of meeting may help to overcome the second order bargaining problem in similar ways as a mediator may help to overcome the first order bargaining problem. There is little research, however, on the effectiveness of these first line interventions, and also little descriptive work regarding the best practices for nurturing these initial contacts between disputants (see Moore 2003 for some possible interventions). One step further is the development of neutral dispute resolution services that integrate this first phase. The plaintiff goes directly to a neutral dispute resolution provider. This person commits himself to the plaintiff to facilitate a transparent process that leads to a fair outcome against reasonable cost, not to maximize the plaintiff’s outcome. If a client comes with a problem, the consultation can be about the possible views from both sides, about ways to solve the problem, and about neutral criteria that may be applicable. The facilitator establishes contact with the defendant and invites him to participate, giving him the same commitment to process and a fair outcome. If the defendant does not participate, the process continues without him and creates reasonable incentives for the defendant to live up to the outcome that results from the process (see Barendrecht 2009 for an exploration of this approach). Although they have not yet been tested extensively, it is likely that these approaches can lower the transaction costs of meeting. Reactive devaluation is less likely, particularly if it is not the opponent but a neutral who proposes a suitable dispute resolution procedure. A neutral, who is generally less susceptible to negative emotions, may also be able to reduce over-optimism as to what will happen if the conflict remains unresolved. He may also reduce the probability of bargaining failure, as he can facilitate information exchange. But other problems may emerge. It remains to be seen whether these more neutral dispute resolution services can develop into a sustainable business model. Not only does a neutral have two clients that may not be on speaking terms, she has to secure payment of her fees from both of them. Although more neutral models are frequently practiced by lawyers, they are not yet emphasized in legal education. Regulation of lawyers tends to stress the unilateral model. And non-lawyers, who may have the necessary coaching skills, often do not have access to the market for such services because of the tight regulation of the legal profession in many countries (Stephen and Love 1999). Even if neutral legal advice in conflicts is permitted, one-sided legal advice may still be the norm in the legal profession. 3. Regulating Ex Ante Dispute Resolution Agreements As we saw, ex ante dispute resolution agreements are a good tool to lower transaction costs. Regulation of such clauses can be an important contribution to increasing their acceptability, and to prevent abuse of ADR. Several authors have suggested criteria that make ADR clauses more acceptable, which are sometimes already part of legislation or case law (Welsh 2004). Making them binding for the (powerful) party who wrote the clause and not for the (less powerful) consumer or employee (Sternlight 2007) is one option. Criteria as to the acceptability of waiving punitive damages claims, extensive discovery, or participation in class actions are important as well. On the positive side, criteria can be formulated that guarantee procedural quality, outcome fairness, and low cost access to justice. ���� � Most of the scholarly discussion focuses on arbitration clauses, mediation clauses, and jurisdiction clauses when choosing a particular court for dealing with disputes. Dispute resolution agreements, however, can be more sophisticated than that. They may stipulate that the parties will first consult with each other in case of a dispute. If they do not agree on substance, they can agree that they will search for a procedure. If they still cannot agree, the clause can tell them to ask a third party to determine the procedure, for which they can set some criteria beforehand. 4. Requiring Repeat-Players to Offer an Accessible Dispute System A more active regulation policy is to require an organization to have a suitable dispute resolution mechanism in place (O Shea and Rickett 2006). Financial services regulators and telecom regulators have started to require an effective dispute resolution mechanism as a condition for being given a license to operate in the consumer market. Interestingly, companies facilitating consumer markets make similar moves. The “Square Trade” dispute resolution process is mandatory for eBay sellers. Trade organizations sometimes also require that a member lets his disputes be resolved by a private dispute resolution mechanism. Such policies can be extended to other areas where repeat-players regularly have disputes with users of their products or services. Government agencies, companies serving a certain number of customers yearly, and employers with a certain number of employees could be required to have a dispute resolution system in place that is of sufficient quality and offers low cost access to justice. If these dispute resolution schemes are adequately monitored (against criteria such as the ones discussed in the preceding paragraph), they may be a powerful way to increase access to justice. This is particularly true if the consumer or employee can opt out and choose to use a court action instead (Sternlight 2007). 5. Co-opting Powerful Defendants The biggest threat to a dispute system is that a powerful defendant has insufficient reasons to cooperate. An extreme example of this is a dictator who has committed atrocities in the past and is now an obstacle to lasting peace and economic development. Somehow, the costs of not cooperating have to be increased for him, and the benefits of cooperating as well. But why would he cooperate in the future if he can expect to be severely punished for what he did in the past? It may be necessary to co-opt him by granting him some form of immunity. Prosecution of heads of state, as is now taking place before the International Criminal Court, may be a good idea in order to prevent future harm, but it is also an obstacle to peaceful resolution of conflict as it raises the costs of cooperation for dictators. This setting is not unique for the international arena. Employers using unfair employment conditions and husbands committing domestic violence face a similar trade-off. For them, cooperation may be too threatening because sanctions loom large. The solution can be found in two directions. The costs of non-cooperation can be raised by increasing the likelihood of sanctions, such as the use of force against dictators, or other perpetrators. If a government has the resources to bring every perpetrator to justice, to conduct a trial, and to inflict costly punishment, this resolution can be a sustainable policy. Lowering the costs of cooperation for perpetrators can be another road to a peaceful settlement of conflict. This is the realm of transitional justice (Mani 2005). Truth and reconciliation commissions, like the ones used in South Africa and many other post- conflict situations, may not meet everyone’s taste for justice. Economically, they make sense though. Cooperation is made more attractive for those who cooperate, in manners such as telling the truth, by granting them immunity from sanctions. For the victims of the �� � � crimes committed by the apartheid regime, this process, which can lead to apologies and reconciliation, may or may not be the optimal outcome. However, this way to induce defendants to meet and talk can be preferable, because the expected outcome for the victims is still better than the alternatives, including the possibility of getting no justice at all, or of a civil war that would destroy many opportunities for joint gains in the future (Lie et al. 2007). The same reasoning applies to disputes between individuals. Informal justice mechanisms in developing economies, which have to operate in situations with low levels of enforcement, tend to concentrate on reconciliation, even in cases of severe crimes (Quinn 2005). The broader message is probably this: In situations of unequal power which cannot be restrained by government action (and this is often where the need for justice is biggest!), a dispute system that promises completely neutral and fair justice for all participants is likely to be ineffective. It will not be used, in particular, if costly retribution is part of it. Hence, only the second best solutions may be feasible, in which the outcomes are unambiguous improvements of the position of the less powerful parties, but not ‘perfect justice.’ This settling for second best justice is not for eternity, however. The cycle of creating stability, new challenges, and coping with conflict can start once again. In several rounds of improvements, which may take many years, it is possible to move gradually towards a truly satisfactory situation. IV. The Market for Negotiation Assistance A. Market Analysis Once he has succeeded in opening communication channels, the next service a plaintiff needs is assistance in the negotiations that will take place. The basic technology for this is generally described in the literature as integrative – or problemsolving – negotiations (Walton and McKersie 1965; Fisher, Ury et al. 1991; Lewicki, Saunders et al. 2006). This well developed technology supports negotiations by creating an environment that promotes communication and information-sharing, reviewing and adjusting perceptions. In these processes, the focus is on the needs, wishes and fears of the disputants. Integrative negotiations are interest based. The disputants are advised to take a joint problem-solving approach to the dispute, be creative in developing a number of solutions, and choose a (win-win) solution that best fits the interests of both parties. Skills and practices that support these processes are described in the literature and tested to some extent as well (Wall, Stark et al. 2001; Moffitt, Bordone et al. 2005; Deutsch, Coleman et al. 2006; Oetzel and Ting-Toomey 2006; Wall Jr and Chan-Serafin 2009). Task 2. Talk Description Communication and negotiation Basic technology Support integrative negotiation (problemsolving, interest based) Best practices for dispute services/-transactions - Negotiation assistance (integrative negotiations) - Communication, active listening, questioning techniques - Reframing and adjusting perceptions - Managing emotions and interaction - Improving relationship, recognition, apology, supply of coping skills - Standard formats for integrative negotiations (identify interests, issues, explore win-win solutions) Possible providers of services - Advisers - Lawyers - Mediators (facilitative) - On-line facilities Sources of Transaction costs Information about negotiation techniques and conflict management is public good and experience good Market reactions 1. Insufficient supply 2. Business models for delivering expertise: - individualized advice - coaching client through process - taking over process from client - packaging information Table 4 Market Analysis for Services that Assist Disputants with Talking �� � � Transactions in which the parties buy these services can be concluded with friends or family members who happen to have these skills. Professional mediators, (cooperative) lawyers, and perhaps even with online dispute resolution providers can supply them as well (Katsh, Katsh et al. 2001; Wall, Stark et al. 2001; Moore 2003; Lande 2005; Lande 2008). In an ideal world, people in a conflict could learn these skills cheaply, or they could be coached by a professional who helps leads them through the communication and negotiation process. Such services have trouble to reach customers with limited resources, though. Assistance with resolving a conflict using the techniques and skills of integrative negotiations basically consists of delivering expertise. Markets for such information goods are special, because information is a public good (it is difficult to exclude people from using it once it is supplied), an experience good (the quality of the information can only be assessed by the customer after delivery) and the upfront production costs of the information are high in comparison to the marginal costs of producing an extra copy and distributing it (Varian 1998; Stiglitz 1999). If a professional just teaches his clients how to communicate and negotiate, he will soon be out of business, because clients can spread this information freely, and are likely to be unwilling to pay for the information upfront. Thus, the transaction costs on this market are substantial and providers of conflict management skills have to find ways around it. Like other professional services firms, lawyers typically sell services that are customized and individualized. Often they combine delivery of information with other work, such as conducting negotiations for clients (instead of just coaching them) or litigation. These business models diminish the possibility for clients to reuse or to resell the information (Dawson 2005). However, these mixed and individual services tend to be expensive for the client. Hiring an individual expert such as a professional lawyer for the maybe ten hours that are needed to negotiate a simple dispute is too costly for most individuals. Dispute resolution services, like other knowledge products usually delivered by professional services firms, easily become a luxury good. B. Current Interventions by States Gradually, we now gain an understanding of the market for justice, using transaction costs analysis and knowing about the newest technologies for solving disputes, including the technology of integrative negotiations that dates from the 1960’s and became a mainstream part of conflict management in the 1980’s. But governments had to put dispute systems in place long before that. Their systems for coping with conflicts developed over the centuries. They had to cope with the effects of the transaction costs problems, lacking an understanding about the causes of these problems, and with limited knowledge about ways to solve conflict. What societies experienced, was a substantial number of disputes, an apparent unwillingness of disputants to meet and talk about these disputes, and a tendency of disputants to go to unilateral advisers or powerful people. The broader message they probably picked up was that many people are not able to solve their problem through negotiations. Somehow, the decisions have to be made for them. So governments resorted to norms and to decision makers with undisputed authority. 1. Framing Disputes in Terms of Rights and Obligations What gradually emerged in most societies is the procedure of resolving disputes in terms of who is right or wrong. If a conflict continues, a party can bring forward a claim that his rights were infringed on, and the other party can present a defence. The dispute is thus discussed in terms of rights and obligations. If this discussion does not lead to a result, a neutral third party has to decide for them. Thus, courts of law have to be established. This rights and obligations approach is attractive. It can build on moral categories and social norms about what good conduct is, which may come from religious sources. For a ���� � functioning market economy, it is very important that people live up to their contractual promises. So contractual rights and obligations are added to the norms that courts can enforce. Moreover, the moral duties as well as the norms related to enforcement of property rights and contracts can be applied generally, so that similar cases can be treated alike. They can also be used to reign in the powerful third parties who are asked to intervene in conflicts. Their power becomes less absolute, if they are bound by the rule of law. Reframing disputes in terms of rights and obligations also has several disadvantages. The legal framework does not necessarily fit the perceptions of clients. Many researchers have established that clients addressing the formal legal system feel that their needs are not sufficiently taken into account and experience a loss of control, which is commonly attributed to the selection effects of viewing social conflicts through a legal lense (see Relis 2002 for an extensive review of the literature). Morover, invoking a right and accusing a person that he has committed a wrong easily leads to polarization. It implies moral superiority of one party over the other, which is likely to lead to denial, or defensiveness. In disputes, the parties are very sensitive to being treated like other persons, and with all due respect. They use the way they are treated as a cue for their social status (Lind and Tyler 1988; Tyler 2007). The dynamics of accusing and excusing can be very troublesome in dispute resolution (Allred 2005). Escalation of conflicts is often the consequence of using this framework of rights and obligations. Another complication is that many conflicts are hard to solve on the basis of pre-existing duties that have not been fulfilled. As we saw, conflict is inherent to long term relationships with high specific investments, where it is caused by changes in circumstances that the parties cannot regulate completely in their contracts. Problems between business partners or family members are thus hard to resolve on the basis of right and wrong. Judging these conflicts on the basis of rights and obligations does not go well with the idea of an incomplete contract. And even in one time transactions, most disputes have other causes than pure opportunism. Most people know quite well that they have to pay for what they order and should deliver goods of appropriate quality, and have sufficient reasons to do so. The basis of contractual disputes is often a misunderstanding, or unhelpful communication at the time the problems came up. Even for major crimes, framing the issues in terms of rights and obligations is unlikely to do the job. Victims of crime have other needs besides a desire for punishment. They would like to be informed, to be offered an explanation, and to see their harm repaired. Finally, the confrontation creates an additional need for unilateral advice. Now, people not only need a trusted adviser who can coach them in difficult times, but also someone who can inform them about their rights and obligations. The need for a lawyer is increased. Solving conflicts through a system of rights and obligations is thus a mixed blessing. It fits moral categories, reinforces norms of desired behaviour, and prevents abuse of power to some extent. But it also raises the costs of dealing with disputes because it increases the possibility of escalation and impasse, leads to much uncertainty because many real life disputes are hard to solve by applying pre-existing norms, and creates an extra need for legal expertise. 2. Legal Aid Thus it is not surprising that governments resort to another common justice policy. They supply conflict management expertise to the poor who cannot afford it, and because the government dispute resolution system is based on rights and obligations, this is considered legal expertise. Most governments supply subsidized legal aid, or stimulate lawyers to do pro bono legal work. Some other models developed as well, such as the ���� � use of public defenders, in which government agencies provide legal aid in criminal cases. These policies are troublesome, however, because subsidizing legal aid given on a one lawyer to one client basis is a very expensive way to get conflict management know-how to the parties (Pearce 2004). Most states only offer legal aid to defendants in criminal cases facing severe sentences, and in a restricted manner to some plaintiffs in civil cases. Only a few countries have broad programs for legal aid in civil and administrative cases. More fundamentally, legal aid exacerbates the problems associated to unilateral advice, such as the possibility of an arms race between the parties (Pearce 2004). Giving the poor legal aid will not bring them equal access to justice if their richer counterparts can afford better lawyers. 3. Mediation Aid More recently, governments have started to subsidize mediation. In theory, this is an attractive approach because one mediator can replace two lawyers, and the problems with unilateral advice are avoided. Mediation also applies the method of integrative negotiations. These policies typically have little impact, however, for the reasons discussed earlier. The problem of letting two opponents agree on one mediator remains unsolved, whereas a party to a dispute can engage a lawyer without consulting her opponent. Moreover, mediation does not really fit the rest of the formal dispute resolution system that has been built on enforcing rights and obligations. Procedures, legal education, professional norms, business models, and the social norms of lawyers are all based on this model. So mediation is embedded in practices where lawyers do an intake with their clients focussed on rights and obligations, where they negotiate on this basis, and where courts interprete legal norms in order to decide conflicts in which mediations failed. Conflict management, and in particular the way to support integrative negotiations, is a new technology, which basically changed the way in which negotiations can be structured. Before that, the world just had to accept that some disputants do not communicate. With this new technology, up to 90% of people in a conflict can communicate and negotiate in order to improve their relationship, and around two thirds actually solve the dispute. If we take the long term view, it seems to be a disruptive technology, a paradigm change. But this new technology cannot take hold, unless the surrounding system also adapts to the new possibilities. Once a system of resolving disputes is based on a certain technology, the costs of changing this are likely to be huge, however. Resolving conflicts in terms of rights and obligations is a game everyone knows. Lawyers, courts, law schools and lawyers in the government form powerful interest groups. As collectives, they have little interest in changing the game, and individual lawyers cannot easily change it by themselves. New entrants in the market face barriers, such as the prohibition for non-lawyers to give legal advice in important markets like the U.S. and Germany. So, subsidizing and stimulating mediation is not likely to be a very successful justice policy in the short run. C. Promising Policies Instead, governments should rethink their interventions in the light of the new technical possibilities, but with a keen eye for transaction costs. Availability of conflict management know-how has made new ways of supporting negotiations possible. In the light of the new technology of integrative negotiations, government interventions in this part of the dispute resolution market may have become too broad. Before this conflict resolution technology developed, it was sensible to subsidize lawyers and to see neutral decisions by courts of law as the main way to let parties solve disputes. Now that we know that ���� � many issues in disputes can be solved by integrative negotiations, and the market can supply this, governments can target their interventions in a better way. Governments have already started to retreat. Trials and judgments by courts have become the exception, and settlement is the norm in civil disputes. Even in criminal cases, plea-bargaining has taken over. In the once considered very litigious US legal system, the trend has been named the ‘Vanishing Trial’ (Galanter 2004). But then what should governments supply instead? 1. Education in Integrative Negotiations and Conflict Management A promising approach can probably be found by directly confronting the major causes of transaction costs: the public good and experience good character of conflict management know-how. One way to spread this knowledge is through education programs, and this becomes an increasing part of the legal aid agenda. Non-formal legal education (Commission on Legal Empowerment of the Poor 2008), human rights education (Ramírez, Suárez et al. 2007), civic education (Davies 2004), or public legal education (Buck, Pleasence et al. 2008) are the terms under which this message is conveyed. Learning how to solve disputes, how to negotiate, and other relationship know-how seem to be valuable assets for anybody, but these skills are not taught at school in any formal way. NGOs in developing countries invest in teaching women and employees about their rights, and use a mixture of mass media, programs for schools, clinics, and paralegal services to spread the message (Penal Reform International and Bloom Legal Clinic of the Northwestern School of Law 2007; Commission on Legal Empowerment of the Poor 2008). Besides basic knowledge about law, these programs increasingly teach skills for coping with conflict, for instance in situations of domestic violence . The good news is that communication and negotiation skills are fairly general and can be used in most economic and personal relationships. A basic negotiation course can be taught in a week and this seems money well spent. Negotiation expertise is a public good that may have a big impact on human well-being if it were more universally available. Both economic growth and human development depend critically on how good people are in creating win-win relationships with other people and how they manage the disputes inside these relationships. The bad news is that the curriculum of schools and universities are full and belong to the kind of institutions that are most resistant to change. Slots in primary and secondary education are thus very difficult to obtain. In this respect, it is interesting to note that the theory and skills of integrative negotiations are not even an obligatory part of the curriculum in economics. Economists assume that wealth and welfare will be created by transactions, but do not study how transactions are formed. A more targeted approach is to spread this know-how to people who are likely to find themselves in the beginning stages of a conflict, or at key transitions in their lives (Buck, Pleasence et al. 2008). Some American states apply this principle by requiring that people complete a divorce course before they are admitted to a divorce procedure. Programs assisting women with dispute skills in order to cope with domestic violence have been linked to maternity care programs in developing countries (Commission on Legal Empowerment of the Poor 2008). 2. Economies of Scale in Communication and Negotiation Advice Once in a dispute, the parties must cope with the skills they have at that moment. Disputants may learn on the spot, but they will often need help with communicating and negotiating in a productive manner. The challenge is to bring this expertise to the negotiating table at a low cost, which means without having to pay one professional for exensive individualized dispute advice. ���� � The most promising approaches here are in the area of finding economies of scale. Legal expenses insurers have developed ways to serve many clients with similar problems by standardizing their services through protocols. Specialized dispute resolution services are offered by trade unions and consumer organizations to their members. Government outfits and law clinics at universities offer basic legal advice to people with legal problems. Paralegal programs are the most promising variant for developing economies (Maru 2006). Increasingly, legal advice is supported by internet interfaces, so that clients can start with self-help and then go onwards to personal advice if necessary. Advice can now be obtained by posting questions on the internet and obtaining answers in return for a fee. Websites that use this model include findlaw.com and lawguru.com. The question remains, however, whether this leads to viable business models for selling expertise. Like most IT companies, the providers struggle with keeping the balance between attracting many customers with free services and selling more sophisticated services for a fee. Most of these standardized services still have to integrate communication and negotiation advice into their offerings, however. The market still perceives the need as a legal need, and not so much as a need for knowing how to communicate and to negotiate (Hacker 2008). Governments can surely help to adjust this perception, which is caused by their prior interventions in this market. Because mechanisms for dispute resolution are widely perceived as a task for state institutions, the public is likely to appreciate some guidance from the government regarding the best ways to solve disputes. Public awareness programs regarding the way conflict management know how can be obtained are one way to achieve this. 3. Structuring Settlement Negotiations A more direct way to stimulate the use of modern conflict resolution know-how is to structure the communication in disputes along these lines. This is the modern equivalent of the rights and obligations approach. Instead of inviting people to frame their dispute in legal terms, the parties can be asked to communicate about their emotions and their needs, wishes and fears. Moreover, a government dispute system can ask them to bring forward a number of possible solutions and to suggest legal criteria and social norms for evaluation of these solutions, instead of requiring the plaintiff to formulate a claim and the defendant to submit all his possible defences. This negotiation support system could have the form of procedural rules, very similar to the codes of procedure, but now applicable to the negotiations that usually precede the court action. Other possibilities are to build a web-based negotiation support system, or to let interest groups come to a code of conduct for the settlement of claims (Van Zeeland, Kamminga et al. 2007). Again, a motive for this government intervention could be to compensate for the existing government incentives to frame a conflict (only) in terms of rights and obligations. Once such a framework is in place, the market can bring additional negotiation and communication skills to the table. As we have seen, there are many people around who wish to assist people with communication and negotiation, once they sit in a room and are ready to be helped. Mediators, other neutral facilitators, online dispute resolution services, collaborative lawyers, or more traditional lawyers can provide these services. Finding the people with the right skills is something disputants can sort out by themselves, probably with support from a little regulation that helps clients to distinguish good quality from bad quality, as is common in other professional services (Stephen and Love 1999). ���� � V. Supplying Information about Fair Solutions A. Market Analysis In disputes, the parties always have to cope with distributive issues. The parties must determine an amount of compensation, the length of a notice period, a way to divide assets which they jointly own, and sometimes the severity of a sanction. Bargaining in this situation of bilateral monopoly is likely to fail, because parties tend to obtain better results if they have more patience, make more extreme offers, commit themselves more, have more attractive outside and inside options, and have more information. (Muthoo 1999; Muthoo 2000; Carraro, Marchiori et al. 2006; Korobkin and Doherty 2007). This all amounts to uncooperative conduct. Consequently, the tension between creating value, for which cooperation and information sharing is most effective, and distributing value, where a unilateral strategy is usually more succesful, complicates the process of dispute resolution (Mnookin, Peppet et al. 2000). The only known way this bargaining failure can be prevented, is by bringing neutrality in the game. Information about the way other people have settled similar issues is one way to do provide a neutral point of view. Informing the parties about solutions reached in comparable situations helps them to assess the fairness of outcomes (Pillutla and Murnighan 2003; Husted and Folger 2004; Cialdini 2007). Market prices, rules of thumb used in practice, social norms, or case law can provide people with this information (Fisher, Ury et al. 1991; Shell 2006; Barendrecht and Verdonschot 2008; Verdonschot 2009). These ‘objective criteria’ create a shadow of the law, a neutral image of a just world, that the parties can use as a point of reference for reaching agreement (Mnookin and Kornhauser 1978; Cooter, Marks et al. 1982; Hacker 2008; Nisenbaum 2009; Ray 2009). People in a dispute tend to ask for these criteria: what did others get in my situation (Hacker 2008)? Task Share Description Distributing value fairly Basic technology Supply information about fair shares (sharing rules, objective criteria) Best practices for dispute services/-transactions - Bargaining assistance (distributive negotiations) - Objective norms and criteria for three/five most common issues in most common disputes that: o can be applied easily; o weigh similar elements for both; o give a continuous range of outcomes, not binary answers (yes/no); o belong to the parties (legitimacy, fairness, appropriateness); o allow for adjustment to situation: o are not exclusive; o show what others did in similar situations; Make this information widely available in order to increase transparency Possible providers of services - Advisers - Lawyers - Mediators (evaluative) - Legislators - Courts rendering precedents - Legal academics Legal information providers (publishers) Sources of Transaction costs 1. Information about fair solutions is public good and experience good 2. Providers of fairness information face pressure/criticism from all sides Market reactions 1. Insufficient supply 2. Business models for delivering expertise (see above) Table 5 Market Analysis for Services that Assist Disputants with Sharing Unfortunately, objective criteria are not always available (Barendrecht and Verdonschot 2008; Yeazell 2008). Information about the going rates of justice is costly to produce (Barendrecht 2009), because it requires extensive knowledge about the ways disputes of a certain type have been settled by the disputants or decided by neutrals. The information has the character of a public good: once the information is published, the marginal costs of letting another person use the information is close to zero, and it is very difficult to exclude people from using the information. To make things worse, the client can only know whether the information is valuable for him if the norms are disclosed to ���� � him first. But why should he pay upfront for a good that still has to prove its value? Because the production costs of this information are high, and it is a public good, as well as an ‘experience good’, there is little commercial incentive to produce rules regarding suitable ways to deal with distributive issues (Posner and Rasmusen 1999; Parisi 2000). To make things worse, the producer of distributive rules is unlikely to have many friends. Because of the natural tendency of people to be biased in the way they perceive fairness, producers of distributive norms are likely to be criticized from all sides. The market for legal expertise thus has similar characteristics as the one communication and negotiation know-how. Lawyers offer tailor made legal advice, and bundle legal information with other services, such as helping parties to write a contract or to argue a case in court. Legal information providers such as writers of handbooks and publishers of databases supply packages, in which procedural rules, rules of conduct put down in legislation and commentary are sold together with an occasional norm for settling distributive issues. If a plaintiff just wants to know what the usual criteria are for dividing assets in a divorce, for damages in a personall injury case, or for compensation if a second hand car has serious defects, there is often no place to go. B. Current Interventions by States The scarcity of public information about distributive issues is a problem that has been tackled by several government interventions. 1. Codificattion Making law transparent is a classical task of governments. Following the examples of Justinian and Napoleon, states enacted civil codes, criminal codes, and codes of civil and criminal procedure. The extent to which they codified law varies between common law countries, where more of the task of making law transparent is left to the courts, and civil law countries, where legislation is the primary way to make law transparent. Although common law and civil law are often presented as opposites, the amount of centralized codification is primarily a matter of degree. Both common law and civil law systems see making law transparent as a government task and do this partly through codification. However, codes have not been able to give citizens access to the information that is needed to settle their disputes. A consumer who has a dispute with a seller about the quality of the goods he bought will find in the code that he is entitled to the quality that is described in the contract, or the quality that may be expected from goods of this type in general. Parties in a divorce, or an employment contract termination, will only obtain limited information about their entitlements. Civil codes give little attention to very common causes of disputes. Transitions in long term relationships, changes of circumstances, and interactions in which both parties made a series of small, understandable mistakes, are issues that are hardly touched upon. Generally, codes are rather abstract statement of rights. They thus mainly provide a structure for reasoning, or a way to frame issues in a dispute. This can be very useful because it is easier to compare outcomes across cases if the outcomes are classified in categories of legal problems. Whilst rules from codes somewhat limit the range of possible outcomes, they rarely give much guidance for the outcome itself. The going rates for rights remain hidden for the general public. Codes hardly ever mention percentages, amounts or numbers. It is not so difficult to find the sources of government failure here, that are causes of transaction costs. Governments have limited information about the going rates of justice because they do not know how private disputes are usually settled. Codification projects tend to be the realm of academic lawyers. They have access to precedents, but, as we will see, these are also not very informative about the going rates of justice. Because the ���� � lawyers working on the code are not able to provide guidelines, they focus their attention on providing an encompassing framework for legal reasoning. Codes have the ambition to be comprehensive in this respect. This means that codification efforts are often targeted at making the code cover every imaginable problem. The discussion in codification projects is thus mostly about the different ways to systematize the law. These projects attract little or no attention from the general public, which is understandable because codes do not seem to have much impact on outcomes. Currently, the vivid academic debate about a European Common Frame of Reference for contract law is a case in point. In this academic debate, there is surprisingly little discussion about the distributive effects of the rules that are in the process of being designed (Hesselink 2006; Kerber and Grundmann 2006; Smits 2008). Another reason why codes tend to remain silent on distributive issues is related to the format of rights and obligations. Any codification of knowledge needs a model, a language and concepts in which the codification takes place (Cowan and Foray 1997). Unsurprisingly, the existing legal codifications tend to follow the model of rights and obligations. Civil codes regulate how people can establish property rights, how they can conclude a contract, under what conditions a contract is enforceable and what their obligations are to prevent damage to others (tort law). Criminal codes qualify conduct as crimes and mention the sanctions that can be attached to them. The rights and obligations model is not likely to produce concrete guidelines for settling real life disputes in which both parties interacted in a way that was less than perfect. Limited incentives are also a problem. Codification experts in the government bureaucracy are not directly responsive to client needs (Couyoumdjian 2008). Sometimes they are more concerned with the integrity and the system of their code than with the way it is used in practice. Because lawyers and repeat-playing disputants may very well have an interest in keeping legislation complex (Galanter 1974), they are unlikely to put pressure on the codification experts to do a better job Whilst plaintiffs who are one-shotters need transparency at the time they use a rule, they are unlikely to need it again in the future. So, from both sides, there is little pressure on governments to provide good information on the going rates of justice. For legislators, and as we will see for courts, an impediment to the development of objective criteria is that legal norms are thought to be binding. There are good reasons for this requirement. Legal norms often cannot be fully supported and explained by one consistent set of reasons. Law is frequently based on ‘incompletely theorized agreements’ (Sunstein 2007). Thus, the courts and the subjects applying the law cannot be left free to consider the substantive reasons behind the rule and improve it if necessary (Sherwin 2006; Schauer 2008). If legal norms are to provide law and order they must not be questioned and, therefore, they are binding. The downside of this requirement is the increase in costs of developing criteria. Widespread agreement about the norms is necessary, at least in a democracy, and they should pass through a formal legislation process. If courts are setting precedents, they have to operate cautiously. Errors in binding norms have to be avoided because they are difficult to correct at the stage of applying the norms. Thus, legislators may refrain from creating norms or set open-ended norms that give little guidance to the parties in a dispute. The political process is also ill suited for negotiating and deciding norms for distributive issues. Politicians have little to gain from taking clear stances regarding ways their citizens should divide the gains and losses of their private transactions. Only some norms – like sentencing guidelines for criminals and, currently, norms for salaries of business leaders – are interesting for politicians, because they protect the interests of many voters against the selfishness of a few. Thus, codes tend not to provide the information that people need to settle their distributive issues. This is understandable once we look at the incentives for those ���� � involved in writing the code. Once a code is enacted, however, it becomes a tool for teaching future lawyers. The code will influence their ways of thinking and doing. It reinforces the idea that the law consists of rather abstract and open ended rules that classify issues more than guiding the way towards solutions for real life problems. In the minds of lawyers working in law practice, solving actual disputes happens in an interaction between the parties and, probably, the courts. They are helped by legal expertise that operates within the broad framework of rights and obligations. Little of this expertise is codified. Lawyers are probably not unique in this respect. Cowan and Foray show that the initial high costs of codification may sustain an equilibrium in which a large group of experts has little interest in codification, although this would have high social benefits (Cowan and Foray 1997). 2. Precedents Another government intervention in the area of providing legal information that helps people to settle distributive issues is the assignment of this task to courts. Within the broad framework of rights and obligations that form the existing legal system, the courts can give guidelines about reaching outcomes in concrete disputes. This task of courts exists both in legal systems where the courts defined the framework in the past and have powers to adjust it (common law) and in legal systems where this structuring is primarily done by means of codes (civil law, Germanic legal systems). In practice, both types of legal systems have a division of labour between courts and legislators in which more abstract rules and more concrete guidelines have to be formed in an interaction process (Calabresi 1999; Ponzetto and Fernandez 2008). Building a body of case law is a slow process, however. Litigation, up to the phase of decision making by a court, takes time. Generating sufficient experience with a number of different disputes may cost five to ten years. Aligning these precedents in appellate review and through decision making by the highest courts can easily be a matter of five more years (Ponzetto and Fernandez 2008). Moreover, the prevailing culture among judges is to see a dispute as an individual problem that needs a contextualized decision. Consequently, even the highest courts may see the production of rules as a by-product of their true task: doing justice in the individual case. Thus, it can take decades before a clear guideline emerges from case law. As a result, court decisions seldom give much guidance in issues of sentencing, sharing of liability, damages, or other quantitative matters (Bovbjerg, Sloan et al. 1989). Searching databases of case law for percentages, numerical guidelines or ranges of damages leads to a very limited number of hits. Incentives are probably misaligned here as well. Judges generally do not have many reasons to create precedents that are useful for future parties (Landes and Posner 1979). They face similar problems as politicians. What they say is likely to be seen, at least by one of the groups involved, as a decision against their interests. Accordingly, making such rules will not add much to a court’s popularity. Lower courts that create clear guidelines expose themselves to criticism from higher courts. With some creativity, it is always possible to find an example of a situation in which the proposed guideline should not be applicable. Add to this the doctrine of binding precedent, or at least an obligation on the part of courts to follow an established line of precedents (Fon and Parisi 2006), and higher courts will think twice before expressing a clear guideline. It binds them for the future as well. It takes more time and effort of judges to agree on a more general guideline than on a narrow decision in one case (Sunstein 1999). Overall, courts are rather cautious. They favour rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a more general theory of the legal issue (Sunstein 2008). 3. Supporting Law Faculties at Universities The market and government failures linked to the production of legal information are probably one of the reasons why states tend to invest in law faculties at universities. Within universities there is a lively debate whether legal scholars at universities should �� � � be real scientists, testing theories about law and its effects, or if they should collect, organize and publish the legal information from legislation and precedents. The latter function is certainly one that is much appreciated by law practice. Law firms and other providers of justice services buy legal information from academics in the form of law books, law review articles, and legal education. Legal academics have not always been effective in producing information about objective criteria for distributive issues. The prevailing attitude has become that academic lawyers should reflect on what happens in case law and in legislation. Therefore, they primarily follow the trends in production of norms in these sources of law. Within these categories, they are likely to focus on the information that is easiest to access and has the greatest impact. This focus tends to be case law from the highest courts and changes in codes. These changes in the law are thoroughly commented on from all sides. Academics at law faculties seldom analyze hundreds of cases from lower courts in order to find patterns in decision-making by using statistical methods. This lack of responsiveness to the needs of clients is understandable, if we look at the transaction costs of supplying this information again. It would be a time-consuming and costly business from which the results would be immediately copied by all those other academics writing their own textbooks. C. Promising Policies How can providers of justice services, courts, academics, or legislators be seduced to produce helpful objective criteria, going rates, sharing rules, prices of rights, or whatever name we give this information? This is an area that has hardly been researched yet, so we cannot do more than explore the issues. 1. Improving Incentives to Generate Guidelines A person can gain from providing information about objective criteria in many different ways. Besides financial profits, the satisfaction of helping others to solve disputes can be one such motivation. Another reason can be the fame associated with providing a lasting solution for a category of disputes. Rules sometimes carry the name of their authors. For example, the Loi Badinter that introduced strict liability for car owners causing accidents has the name of the French Minister of Justice who was the driving force behind it. The Learned Hand formula for negligence is named after the judge (and philosopher) who wrote it down in the case United States v. Carroll Towing Co (1947). If courts have to deal with many similar cases, they sometimes have an incentive to provide more clarity about the basis of their decisions. Otherwise, they will be overburdened with work, or be exposed to accusations of unequal treatment in similar cases. Other incentives work in the opposite direction. A court or decision-maker providing clear guidance for future cases will attract a lower number of cases in his future because more cases settle. This can lead to a reduction in income, as well as a loss of opportunities to make a difference (Landes and Posner 1979). More generally, the way courts are funded is an area for enquiry. It might be worthwhile to develop methods for financing courts that tie compensation to the responsibility of solving all disputes in their jurisdiction in a low cost/high quality manner within a limited amount of time. If a court’s financing would be tied to its dealing with all divorce cases or employment issues, the court is likely to look for economies of scale and for ways to increase the likelihood of settlement. Communicating guidelines for distributive issues to disputants achieves both goals. 2. Rulemaking through Intermediate Private Institutions Many schedules, guidelines, and formulas that are used within the legal system are non- binding rules. Commissions or groups of academics design schedules or formulas; judges join forces to agree about non-binding guidelines. �� � � This can hardly be a coincidence. The costs of binding distributive rules are high. They have to pass through formal procedures with limited capacity, they will be exposed to criticism from all sides, and the rules will limit flexibility of decision-makers. Thus, new, lower cost ways of rulemaking develop. As institutional economists have noted, groups may jointly form their own institutions because the transaction costs of individual coordination or coordination at the state level is too high (Brousseau and Raynaud 2006). Governments can see this as undesirable competition and, thus, try to preserve a rulemaking monopoly, but they can also choose to facilitate such private rulemaking processes. Developing nonbinding guidelines is still costly for stakeholders, and it may be difficult for them to finance these efforts. The process of rulemaking works best if groups of stakeholders are involved, but presided over by a neutral body, which governments can provide. The state can also put pressure on the private rulemaking process by threatening to use its procedures for formal and binding rulemaking if the stakeholders do not solve the issue themselves. 3. Removing Restraints on Rulemaking for Distributive Issues Another approach is to remove restraints on governments and courts that produce rules for distributive issues. A good strategy may be to have general principles as binding rules in combination with specific non-binding guidelines for recurring problems. Damages for personal injury cases, for instance, can be determined on the basis of the general and binding principle that all loss of income has to be compensated. Schedules can than give guidelines for establishing the amount of damages, whilst the parties and the courts retain the possibility to deviate from the schedule if the general principle is violated. Instead of discussing in a general way whether precedents are binding, it could be left to the courts themselves to decide how strongly they recommend that other courts follow their criteria. Similarly, a civil code could have a combination of general principles with specific criteria as guidelines for recurring issues under the article in question. The idea that codification should be comprehensive is another restriction that raises the costs of production of useful criteria. If legislators and courts would focus their efforts on criteria for the problems that are most frequent and urgent for citizens, then the costs of producing rules would drop. Depending on the costs of error and the costs of decision making, it is possible to find an optimal level of specificity of rules (Fon and Parisi 2007; Sunstein 2008). Generally, more specific rules are desirable for problems that occur frequently (Kaplow 1992). Instead of relying on interest groups, parliamentarians, individual judges, or lawyers working in the justice department to set the agenda, governments might research the most urgent needs for criteria and then focus efforts in that direction. One additional reason for adopting this strategy is that producing the right type of guidelines will diminish the costs of courts and of subsidized legal aid. 4. New Models for Sharing Rules In the information age, codification of knowledge has become much easier. The cost of codification has fallen, the ability to codify more complex phenomena has increased, and the value of codified knowledge has risen because it became less expensive to reproduce and more valuable (e.g. faster) to use (Cowan and Foray 1997). This general truth is likely to apply to legal codification as well. Objective criteria for distributive issues, the going rates of justice, have a similar role as pricing information. Sustainable business models exist for sites that inform the public about prices of goods. It is true that this is easiest for goods that are homogeneous and standardized, but sites that compare prices of rather complicated goods, including insurance or loans, have developed. They now compare products that have many relevant attributes. Similarly, it may become possible to develop bottom-up models for sharing criteria for distributive issues. Local going rates for settling recurrent issues could be uploaded to a website so that others can use them. Such a “wiki-norms solution” ���� � depends on the willingness of individuals to share their knowledge about such criteria. As of yet, it is uncertain whether it will be possible to create a forum on which the going rates of justice can be made transparent by users of the dispute system, but attempts to achieve this are under way (Barendrecht and Verdonschot 2008 and www.microjustice.org). One problem is that websites disclosing pricing information tend to be tied to spot markets where the goods in question are traded. Here, sellers have an incentive to disclose their price if it is low. Sellers or buyers usually pay a small commission to fund the infrastructure for disclosure of pricing information. Rights, however, are not traded like telephones or holiday homes. They are settled with one particular opponent, so there is little reason to inform others of offers to settle for a certain price. Other incentives have to be offered to induce people to disclose information about the going rates of justice. People could do this for money, because it enhances their reputation, or for altruistic motives. VI. Delivering the Option of a Neutral Decision A. Market Analysis The plaintiff also needs the option of a neutral decision that imposes a fair outcome on the plaintiff. This justice service is an essential element of a dispute system. It is valuable to the plaintiff, because it creates incentives on the defendant to participate and to make moves towards a fair solution for the distributive issues. Moreover, the neutral supervises the negotiation process, making aggressive bargaining tactics less likely, and can take decisions if the parties do not reach an agreement (Barendrecht 2009). Task 4. Decide Description Decision making procedure Basic technology Make option of a neutral decision available (at low cost) Best practices for dispute services/-transactions - Adjudication - Simple procedure (oral presentation, hearing, decision) - Limited fact-finding - Judicial/neutral case-management and information processing - Online formats for defining interests, distributive issues, possible solutions, decisions - Stimulate cooperative attitude - Procedural justice: voice, participation, trustworthiness, neutrality, interpersonal respect. - Discussion of possible objective criteria for outcome - Integration of decision making and settlement - Mild time pressure - Preliminary judgments in more difficult cases More generally: minimize sum of decision costs and error costs Possible providers of services - Persons with informal power - Courts - Arbitrators - Neutral fact-finders State agencies Sources of Transaction costs 1. Difficulties of concluding ex post dispute resolution agreements: - Psychological barriers - Strategic barriers 2. Insufficient incentives on neutral to provide efficient processes and fair solutions because of: - dependence on neutral - low frequency of transactions - uncertainty and complexity - monitoring difficulties. Market reactions 1. Access to neutrals on markets is unavailable or unreliable 2. States provide neutrals Table 6 Market Analysis for Services that Assist Disputants with Deciding Let us assume that a plaintiff and a defendant would look for a judge on the market for private transactions and that they found one. This is unlikely, as we have seen in Section IIIA, because parties in a dispute have difficulties to agree on a procedure, but let us ���� � imagine for a moment they have succeeded in overcoming this problem. Now how will their transaction with the private judge unfold? Normally, the client of a service provider would make clear what he wants, negotiate a price, and then monitor whether the seller will do a good job. A privately contracted judge, however, has two clients. They would need to give their judge instructions what they want from him: How to exchange views and documents? How much time for the hearing? A jury or a bench trial? How many witnesses will be called? How will they be questioned? How to conduct settlement negotiations? On many of these issues, the plaintiff and the defendant are likely to disagree, because they expect to obtain better results in one version of the procedure, or make elements of the procedure a bargaining chip if their opponent is strongly in favour of one way of dealing. Consequently, a private judge or an arbiter does not get a clear message from his clients regarding the kind of interventions they want, or the costs they want to spend. Once they find themselves before a judge, the parties are also unlikely to go to another judge because they are unhappy with the first one. The consent of the other party would be needed for this. The parties are locked into the service of this one judge, but cannot give him clear instructions. They are also unlikely to need the services of the judge in the future, because most parties will not be regular clients of courts. If, exceptionally, one of them is a regular buyer of judge services, this is bad news for the other party and likely to affect the neutrality of our private judge. Managing this neutrality is another transaction cost problem that should be solved. The private judge may be inclined to accept side payments from one of the parties to influence the decision. This is difficult to detect for the other party. In sum, the transaction costs of hiring a private judge are very substantial. The normal discipline of the market does not work well if a plaintiff tries to hire a judge. B. Current Interventions by States 1. Courts Taking into account the number and size of these transaction cost problems, it is unsurprising that governments intervened. The standard policy that developed over time was to nationalize the business of providing neutral decisions by setting up an independent judiciary. Every nation has a court system for solving civil and criminal disputes, and most countries have some form of judicial review of decisions by the administration as well. It is often possible to opt out of this government system, but we saw that this is difficult, as it requires agreement between both disputants, which is not likely to materialize (Section III.A). So most disputes are solved by formal courts set up by states, or in the shadow of their interventions. Courts face little competition. Courts set up by governments are not very efficient institutions. Clear signals of this are the amount of court delay that is pervasive around the world and the high costs of litigation (Trubek, Sarat et al. 1983; Buscaglia and Dakolias 1999; Messick 1999; Zuckerman 1999; Peysner, Seneviratne et al. 2005; George 2006; Cabrillo and Fitzpatrick 2008). This is even true for courts in developed economies that have had a stable court system for more than a century (Woolf 1996; Rhode 2004; Peysner, Seneviratne et al. 2005). Courts are slow in taking up information technology. They do not systematically incorporate innovations in conflict management in their services, although there is much criticism on the way courts intervene in disputes (Tyler 1997). The inefficiencies are so apparent, that the basic attitude of citizens is that litigation should be avoided. Governments have accepted this, which is a strange state of affairs, taking into account that courts were set up in the first place in order to help people to solve problems they cannot solve themselves. ���� � There is general agreement between scholars studying courts about the reasons for these inefficiencies. Judges have insufficient incentives to deliver high quality and low cost services (Trubek, Sarat et al. 1983; Messick 1999; López de Silanes 2002; Botero, La Porta et al. 2003; Peysner, Seneviratne et al. 2005; George 2006; Cabrillo and Fitzpatrick 2008). There is also a fair amount of consensus about the policies that are unsuitable to increase efficiency. Making money for courts available and asking judges to render neutral decisions in conflicts is not enough to create access to neutral decision making (Botero, La Porta et al. 2003). Empirical research confirms that hiring more judges does not increase the productivity of the courts (Beenstock and Haitovsky 2004), nor does a salary increase (Choi, Gulati et al. 2009). These outcomes are understandable, because just giving judges the task to decide disputes does not make it easier for clients to determine what courts should do for them, to monitor court performance, and to make them satisfy client needs. Shifting from private judges, who try to make a business from deciding conflicts, to state paid judges is not a solution for most of the transaction problems. The only real change is that judges become less dependent on the parties for their income, so they may be less tempted to take side payments from the parties, but also less inclined to do a good job for their clients. The incentives that are lacking in the market place will have to be put in place by governments. If the clients cannot decide what exactly they want from the judge, and cannot monitor her sufficiently, someone else has to take over this task. If this does not happen, a likely type of government failure that applies here is inadequate control of the bureaucracy. Individual judges may be very motivated to deliver adequate solutions for disputes in time, but their internal motivation is not complemented by external incentives (Posner 1993; Cabrillo and Fitzpatrick 2008). So let us see which incentives governments have put in place. 2. Extensive Rules of Procedure Extensive regulation of the procedure is one way to protect the interests of the clients of courts. Civil procedure rules and codes of criminal procedure, as well as their counterparts for administrative litigation, typically exist of hundreds of articles, with many details about filing claims, providing evidence, rules for hearings, options of intermediary decisions, rules for many different complications that can arise during the procedure, and rules on how the court gives reasons for its decision. This extensive regulation protects the parties to some extent because it makes the tasks of the courts more transparent and their performance thus more easy to monitor. Appeal courts, colleagues, lawyers, and legal academics can monitor whether judges follow the rules of procedure. If they do not comply, their reputation as a judge and their career opportunities will suffer. But making courts stick to the procedural rules attracts the usual risks of a rule based bureaucracy. Instead of focusing the judge on the needs of the disputants, the rules can easily become a target in themselves. In the dysfunctional variant, rules become an obsession (Bovens 2005; Bovens 2007). Moreover, rules of civil, criminal, and administrative procedure do not cover all the needs of the disputants in a systematic way. They tend to deal mostly with issues that are easy to address in general terms, like the opportunities of both parties to submit their point of view at various stages of the procedure, and formal issues like the data that documents must contain to identify the plaintiff and the defendant (see, for instance, Article 5 of the Principles of Transnational Civil Procedure: ALI and UNIDROIT 2004). More complicated, but much more essential issues like the way the parties present their case in documents, or the way a hearing is structured are mostly left to the individual lawyer of judge. The trade off between error costs and decision costs is not addressed, or only in very general ���� � terms like an obligation of the court to “resolve the dispute within a reasonable time” (Article 7 PTCP). The operation of courts is indeed rather bureaucratic, probably more bureaucratic than one can find in any other government agency. Researchers have begun to measure the efficiency of procedures by counting the number of procedural steps, the costs of accessing the procedure, or the amount of time at least one of the participants is active when compared with the duration of the procedure (see the World Bank "Doing Business" reports and Djankov, La Porta et al. 2003; Gramatikov 2008). In these terms, even simple court proceedings tend to compare unfavourably with other procedures in the bureaucracy. As a consequence of this, the expected costs of litigation can easily be higher than the value at stake (Zuckerman, Chiarloni et al. 1999). Waiting times for hearings and decisions can be months, or even many years (Messick 1999; Zuckerman 1999; Zuckerman, Chiarloni et al. 1999). Another signal of the inefficiency of court procedures is the acceptance that professional lawyers are needed to steer clients through the system. In many countries, using lawyers is even obligatory for important types of court proceedings, whereas having to hire a lawyer obviously adds to the cost of access to a neutral intervention. This is even more worrisome, because the parties can become trapped in an arms race, where they try to invest more and more in convincing the court of their position (Tullock 1980; Hirshleifer 2000; Cabrillo and Fitzpatrick 2008). It is obvious that this war of attrition is more likely to occur in situations where lawyers are paid by the hour, and thus have an interest in keeping the war going. 3. Protecting Clients and Monitoring Neutrals through Appeals Governments also help to monitor and control the courts by setting up a complaint mechanism in the form of appeal courts. A party that is not satisfied with the outcome can ask the appeal court to reverse it. Because there is always the possibility of an appeal, lower courts will know that decisions that are not truly neutral have quite a substantial probability of being detected (Shavell 2004). An obvious problem with an appeal as a solution to the monitoring problem is that it adds to the transaction costs. An appeal can be used by a powerful defendant to increase the costs of accessing justice for plaintiffs. Compared with complaint mechanisms for other services, where a customer can pick up the phone and give his feedback to a call center, appeals are extremely formal and costly. Private arbitration procedures usually do not include the possibility of appeal, which suggests that parties setting up these procedures usually think they are too costly in comparison to the advantages (Landes and Posner 1979; Barendrecht, Bolt et al. 2006). As a mechanism for enhancing the quality of outcomes, appeals have rather limited effects, because there are normally no sanctions for lower courts that are reversed in an appeal, except for those judges that have the ambition to become an appeal judge themselves. Moreover, appeal courts tend to monitor only whether the decision of the lower court is legally correct and whether the rules of procedure were observed. Many attributes of legal decisions and procedures that are important to clients are not covered by this type of monitoring. Appeal courts usually do not oversee whether courts interacted with the clients in a respectful and effective way (interpersonal justice, informational justice). They do not assess whether the decision solves the problem of the parties, whether the procedure was cost efficient, or whether the outcome was delivered timely (Cabrillo and Fitzpatrick 2008). 4. Independence of Courts Guaranteeing independence is another common element of the regulation of courts. Good salaries for judges and appointments for life are often presented as tools to prevent corruption. The measures to guarantee independence have been researched ���� � extensively. Most effective are a transparent case management system with transparent and consistent rules for the assignment of cases; predictable rewards and penalties driven by performance-based indicators, with a consequent clarification of the career paths for judicial and law enforcement officers; specific organizational roles for judicial, prosecutorial and police personnel in order to secure their own internal independence; increasing capacity to review the consistency of court rulings; and a political system in which alternation in power becomes a likely outcome of periodic elections, so that all parties have an interest in an independent judiciary that actively controls government (Buscaglia and van Dijk 2003). Unfortunately, the independence of courts is not only a valuable principle of state organization, but also a shield against incentives that would align the interests of courts closer to those of their clients (Posner 1993; Cabrillo and Fitzpatrick 2008; Choi, Gulati et al. 2009). Opportunities for interactions with the parties that are normally a good way to align the interests of principals (clients) and agents (courts) have to be curtailed because of the danger of corruption. Judges who would like to learn more about client needs may refrain from this because they want to keep a distance. Independence of courts means that courts are not fully part of the government structure with internal and external feedback mechanisms. Thus, it may not be fully appropriate to study them as entities exposed to government failure. A more adequate description of their economic position may be as service providers who have been granted a monopoly. The rules of procedure give them this monopoly position because they are the only dispute resolution forum where the defendant has to appear under the threat of a sanction in the form of an enforceable default judgment. Courts are in some respects even more problematic than other monopolists because they are more isolated from their clients. Most courts do not directly work with clients, but only through the lawyers as middlemen, who do not have a direct interest in a low cost and speedy resolution to the dispute. Monopolies usually fall under some sort of external supervision or regulation of the price and/or quality of the services they supply (Sappington 2005). This aims to guarantee that they take the interests of their client seriously enough, and in a balanced manner, when compared to their own interests. Supervision of courts is not truly independent, however. Appeal courts are part of the same hierarchy. We also saw that their supervision is limited to some aspects of the quality of outcomes and procedures, thus leaving the costs and many other quality attributes unguarded. Establishing judicial councils is the most recent attempt to improve the governance of courts (Fabri and Langbroek 2000). The major reason for their establishment has been to decrease the possibilities of the administration to influence the court system. Judicial councils can guarantee that courts are a truly independent government body by removing decisions to appoint judges and to allocate budgets from other government agents. Judicial councils can also improve the management of courts. Judicial councils, however, do not have clear responsibilities to provide low cost access to neutral interventions of appropriate quality. The rules of procedure are outside their control. Their organisations usually have no mechanisms that ensure that clients’ interests are taken into account. Because the councils are led by judges and answerable only to the community of judges, they tend to behave more like an interest group of judges than like an independent supervisor of courts. C. Promising Policies Until now, government policies have not been very successful in making high quality and low cost court interventions available to citizens. From the perspective of transaction cost analysis this is not surprising, because they have not directly tried to diminish the costs of transactions between neutral adjudicators and their clients. They focused on appeals as a monitoring device, procedural rules as a way to constrain the parties and the judge, ���� � and independence as a guarantee for neutrality. It has proven to be difficult to make courts more efficient and responsive to client needs in this way. Transaction cost analysis suggests to look elsewhere. 1. Simple, Low-Cost Default Procedures The main transaction cost problem that has to be solved is that the parties cannot determine between the two of them what is an adequate procedure for their conflict. So this has to be determined for them. Governments thus set a default procedure, from which the parties can agree to opt out. Opting out, however, is an almost theoretical option, specifically because of the strategic and psychological barriers to agreeing on a procedure, so setting the default for procedures is a very crucial decision. Default procedures (usually the ones codified in procedure rules) have traditionally been formulated by members of the legal profession. Judges, lawyers, and legal academics have an interest in providing accurate decisions. In the long run, they also have an interest in setting the defaults in a way that maximizes the total sum that disputants invest in legal dispute resolution. It is unlikely that their procedural designs will result in default rules that minimize the costs of error and the costs of decision-making (Tullock 1980; Cabrillo and Fitzpatrick 2008), which would be optimal for citizens. Governments thus have to solve this conflict of interest between the legal profession and the users of the legal system. They can design the procedures themselves or carefully supervise the way the legal profession is serving the public. If the target would be default procedures that minimize the costs of error and the costs of decision-making, then the result would probably be a simple and low cost procedure for all standard disputes, including divorce, employee dismissal, consumer problems, neighbour problems, property conflicts and business disputes. Total decision costs should probably not be more than 10 to 15% of the value at stake. If, during such a procedure, the costs of error in the particular case seem to be higher than average, a more sophisticated procedure can take off, with better fact-finding and more elaborate interaction between the parties and the court. Instead of a high cost default, with little possibilities for the parties to restrain costs, the system could provide a low cost default, with possibilities to decide on a higher level of investment in accuracy. Simplifying procedures is indeed often mentioned as an effective way to improve access to justice and court performance, both by external observers (López de Silanes 2002; Botero, La Porta et al. 2003; Islam 2003; Cabrillo and Fitzpatrick 2008; Commission on Legal Empowerment of the Poor 2008) and by experts in the law of procedure (Woolf 1996). This policy is likely to have other positive effects on transaction costs as well. The quality and cost-effectiveness of a simple procedure is more easy to monitor than a complex one. If the default is a low cost procedure, the defendant has more reasons to negotiate a fair solution. Bargaining failure will be less likely, because delaying tactics and threats to inflict high litigation costs on the other party will not work anymore. But is it possible to design low cost default procedures that have sufficient quality? Most disputes between individuals, as well as the conflicts that companies are involved in, are rather standard in nature. Disputes about the delivery of goods and services are mainly about how both parties contributed to quality expectations versus the actual quality of what was delivered. Disputes related to termination of long term relationships (divorce, employment, landlord-tenant, business relationships) are primarily a matter of applying objective criteria to a limited amount of standard issues, such as adequate notice periods and compensation. The scenario’s in which most crimes take place are also rather common. It is rare for the facts to be seriously disputed. If they are, the evidence is not very difficult to evaluate, and the real issue is an adequate package of retribution, treatment, restoration of harm, and possibly reconciliation. It is not being suggested that deciding disputes is easily done. In fact, some cases are very complicated. Decision making by courts, however, is not in an entirely different league as, for example, ���� � decisions about medical interventions, or decisions by senior managers. It requires expertise and skilful application of best practices. A promising approach is to have a court hearing early in the process, where a judge discusses settlement opportunities with the parties, often after giving them some guidance on the distributive issues, and also rendering summary judgments (López de Silanes 2002; Miller 2008). In this way, the courts manage their costs, and the option of a neutral intervention may become available at a much lower price. Moreover, a more active judge can compensate inequalities in skills and knowledge between the parties, and this is probably a much more effective way to create equality of arms than legal aid (Resnik 1982; Pearce 2004). Much depends, however, on the design of this preliminary hearing and the moment the hearing takes place. If extensive fact-finding is required or usual before this hearing, the costs for the parties will not be substantially reduced. The tendency to require extensive exchange of information before the court looks into the case already has a name: frontloading of costs (Peysner, Seneviratne et al. 2005). Courts should be induced to consider not only their own costs, but also the costs of the parties of initiating a procedure up to the hearing. Just a simple form may be sufficient, asking the parties to give preliminary answers to some questions about the dispute: how the relationship developed, how the problem triggering the dispute came up, the interests that have to be satisfied, which attempts to solve the problem have been made, and some possible solutions. The key documents and correspondence that have been exchanged could be added to this. Besides extensive fact-finding, the biggest impact on aggregate litigation costs probably comes from the need to use a lawyer. Thus, making this the exception, rather than the rule, is likely to help. For the most common disputes of individuals it seems to be possible to design procedures in such a way that representation is unnecessary. Experience in Japan and in many countries with small claims procedures shows that it is possible to attain high levels of efficiency and litigant satisfaction (López de Silanes 2002). Recent empirical research into the outcomes obtained by represented and unrepresented clients suggests that the so-called ‘representation premium’ is diminishing (Adler 2008). Research also shows that the more complex a procedure, the more adversarial, and the more dominated by professional lawyers, the greater the need for representation (Sandefur 2006). Thus, simplifying procedures diminishes the need for a lawyer. 2. Accountability towards Clients Other strategies may enable the clients to monitor court performance. In order to fight court delay, publication of performance data for individual judges has proven to be effective in the United States (López de Silanes 2002). Individual calendars increase accountability of individual judges and have proven to be effective tools to speed up the pace of justice (López de Silanes 2002). Likewise, the other costs suffered by users of the court services can be measured in combination with the quality of processes and outcomes as experienced by the users (Gramatikov, Barendrecht et al. 2008). Transparency of this type of data, and thus increased accountability towards clients (Cabrillo and Fitzpatrick 2008), is probably more effective than attempts to measure court performance in terms of inputs or observance of internal quality standards (Cabrillo and Fitzpatrick 2008; Albers 2009). It is also more effective than mere regulation of attributes of the procedure. Statutory time limits for decisions without ways to monitor and enforce individual performance of judges do not work (López de Silanes 2002). Specialization of courts also increases accountability. It makes courts more clearly responsible for dealing with a certain class of disputes, and creates interfaces where client needs can be made transparent. In addition, it has all the other advantages commonly associated with the division of labour (López de Silanes 2002). ���� � Another approach that seems to be successful is to make court interventions obligatory for a certain type of disputes. If courts have to be involved in order to get a divorce, to dismiss an employee, or to terminate a lease, this increases the pressure on courts to deliver decisions in time against low costs. Obviously, however, this may add to the administrative costs for the parties as well, so it is a type of policy that should only be considered for disputes that are likely to need neutral interventions anyhow. The overall approach is to create closer relationships between clients and courts, thus enabling them to monitor each other’s effectiveness and increase the incentives to use each other’s time efficiently. Part of this strategy can also be to let clients pay fees that are proportional to court effort. An example of the latter is to charge court fees based on how much of the court’s time is used (López de Silanes 2002; Cabrillo and Fitzpatrick 2008). Courts in Singapore, for example, ask increasing fees for each day of court hearings. Courts can also ask fees for the hearing and, if the case is not settled, separately for the written decision. 3. Giving Plaintiffs Choice Promising as these approaches may be, they are part of one particular strategy to solve the problem of failure on the market for neutral dispute resolution services. Instead of letting the parties decide, government decides for them by which process they will solve disputes. Are there other ways in which the market for neutral decisions can be facilitated? Having neutral ADR providers available for disputants, and waiting until the plaintiff and the defendant are ready to come, is no solution, as we saw. There should be some reason for the defendant to show up and participate in the process. One option is to make the sanction of an enforceable default judgment more broadly available. Instead of giving formal courts of law an exclusive jurisdiction, and thus a monopoly position, it may be possible to let a number of neutrals compete for plaintiffs by making their jurisdiction non-exclusive (Botero, La Porta et al. 2003). In such a setting, the plaintiff can chose the neutral with the best price/performance ratio and neutrals will start competing for business (depending on the way they are funded). Giving plaintiffs a choice can happen in many ways. Plaintiffs may have the option to address a neutral from an informal dispute system, a neutral complaint commission outside the formal court system, an ADR program offered by the defendant, a number of different courts within the formal system, courts from different states, or summary proceedings instead of full proceedings. This forum-shopping is generally seen as beneficial if it is motivated by a desire of the plaintiffs to find a low cost and high quality procedure (Ghei and Parisi 2004). However, the plaintiff will not only look at the quality and the costs of the procedure, but also at the expected outcome (Klerman 2007). If the variation in possible outcomes over the different forums is large, forum-shopping may be motivated by being able to opt for a forum that is likely to yield a more favourable outcome. Thus, neutrals may lose their neutrality as they try to attract more business from plaintiffs by rendering pro-plaintiff decisions (Landes and Posner 1979). Although there is no agreement yet about the desirability of forum-shopping, there is a consensus that it should be restrained to some extent by choice of law rules that determine which forum and substantive law regimes are accessible by the plaintiff (O'Hara and Ribstein 2000). The debate about forum- shopping is fiercest in high stakes litigation related to patents, bankruptcy, and class actions, however. This is not so surprising, because in these areas plaintiffs often have a wide range of choices available due to conflicts extending over many jurisdictions, and costs of litigation that are less relevant than the ability to influence the substantive outcome. At the opposite end of the spectrum are cases with low stakes in comparison to the costs of litigation, and low expected variability of outcomes. Most disputes of individuals are in �� � � this class, particularly if objective criteria for distributive issues have been published, so that systematic biases of courts can easily be monitored and corrected. In such an environment, plaintiff’s choice and increased competition between neutrals seems largely beneficial. Giving poor people access to multiple paths to justice makes them less dependent on particular neutrals. Moreover, defendants are quite likely to be repeat players and they can set up competing dispute resolution systems by ex ante dispute resolution clauses in their standard contracts (Klerman 2007) or by offering plaintiffs a low cost and high quality neutral alternative (see Section III). The information age, with its low cost transparency, creates new opportunities for managing the tension between letting people shop for efficient fora and for favourable outcomes. Most jurisdictions have developed rules that limit the number of possible fora (personal jurisdiction in the US, forum non conveniens in civil law countries). Thus, plaintiffs have a choice, but not a choice between an unlimited number of neutrals. Possibly, a system where the plaintiff can choose the neutral from a list can co-exist with some kind of oversight by an authority that hears appeals. This system works well in commercial arbitration. The list can give information about costs, duration, and other essential elements of the procedure (Gramatikov, Barendrecht et al. 2008). Some kind of certification of neutral adjudicators can be required. Such a system can be combined with ratings by customers on the impartiality of the neutral and other quality characteristics. This gradual opening up of the market for neutral decision making services is already happening. It is essentially what takes place if informal dispute resolution systems are incorporated in the formal legal systems (Commission on Legal Empowerment of the Poor 2008). This can be done in a variety of ways. First, local court-like forums can be recognized as a forum next to formal courts, so that the plaintiff has a choice. Secondly, some disputes can be left to exclusively to informal courts, and their decisions become enforceable in the formal system, either subject to full appeal at the formal courts, or under a more limited type of supervision. Our analysis suggests that giving plaintiffs a choice is preferable. Incorporation of informal systems as an exclusive forum is probably a good temporary solution, as it lowers the costs of access to a neutral decision, but in the long run it creates a new monopoly, with little incentives for the providers of the neutral service. Besides opening up the court monopoly, other tracks for innovation can be explored. For distributive issues, it may be possible to organize evaluation in such a way that the plaintiff and the defendant can obtain several independent neutral views simultaneously. This approach is an extension of the idea that a court consisting of multiple judges is less prone to judgment error or bias than a single judge. This requires, however, that disputants can inform such a forum about their interests, views, emotions and other relevant facts at low costs. At the present stage of dispute resolution technology, this is still a problem. On-line dispute resolution tools may at one time help to solve this problem. 4. Terminating Unhelpful Approaches The literature on court reform and court performance has also identified some policies that are unhelpful. Sometimes these approaches are even likely to increase the costs of transactions between clients and a neutral who helps them to decide the distributive issues. These policies generally follow from the analysis provided in the preceding paragraphs, but it is good to list them here again, as they are so frequently proposed and applied. Making legal representation obligatory or broadly subsidizing legal aid in standard litigation is an understandable policy. If court procedures are difficult to access for disputants, they need help. But in the long run, these policies weaken the incentives on courts to serve clients according to their needs. Because lawyers help clients already, courts do not need to simplify procedures. Gradually opening up the legal services �� � � market, so that those other than lawyers admitted to the bar can help clients with presenting their case, drives down costs of access to justice and will make courts more responsive to clients’ needs (Islam 2003; Baarsma, Felsö et al. 2008; Commission on Legal Empowerment of the Poor 2008). This should be combined with increased accountability of courts towards clients. Like any other government service, a court procedure should be understandable and accessible for citizens with average capabilities. Help should be available, but not be a necessity. Limiting competition among courts and between courts and other neutral decision makers is undesirable. So sorting out jurisdiction issues by giving one court exclusivity is not a good idea. Competition increases the possibility that services are tailored to the needs of the clients. On the other hand, specialization is helpful as well, so the optimal number of competing neutrals is higher than one but not as big as the number of lower courts in a medium sized country. Stressing quality or accuracy of decisions, without constraints on aggregate litigation costs for the disputants, is unhelpful (Cabrillo and Fitzpatrick 2008). Incentives on judges should not be distorted towards either high quality or high costs. VII. Making Arrangements Explicit and Enforcement A. Market Analysis Dispute resolution does not come to an end once a settlement is reached, or a judge has taken a decision. Settlement contracts and judgments have to make clear what the parties can expect from each other in the future. Moreover, enforcement has to be ensured. Lawyers may assist the parties in making clear what they will pay, do, or refrain from doing in the future. They do this by supplying them with contracts, which often have standard clauses that provide solutions for recurring conflicts. Unfortunately, contracting information has again a public good character, and is an experience good, so it is difficult to make money with supplying these services. Lawyers do this by individualizing the information, but their contracting services are again out of reach for many individual clients. Property rights and personal identity can also be proven by individualized documents. But it is often more efficient to register them at a central place, so this information becomes available to everyone. Setting up a registration system requires the cooperation of many people, however, so the transaction costs are high. Task 5. Stabilize Description Transparency and compliance Basic technology Supply tools to make arrangements explicit; Make costs and benefits of compliance higher than those of non-compliance Best practices for dispute services/-transactions - Standard negotiating, settlement, and decision documents (contracts/registrations) for most common disputes and issues; - Registrations, contracts, regulation (may be costly) Informal compliance mechanisms (reputation, reciprocity, identification, authority) - Expected sanctions and rewards Possible providers of services - Lawyers, mediators, notaries, other legal advisers - Community pressure - State agencies - Police - Bailiffs Sources of Transaction costs Information about contracting and making relationships transparent is public good Cooperation between many people needed to organize sufficient incentives on powerful defendants to cooperate Market reactions 1. Insufficient supply 2. Business models for delivering expertise 3. Lack of enforcement, in particular against powerful defendants Table 7 Market Analysis for Services that Assist Disputants with Stabilizing ���� � The parties must also ensure that each of them, and in particular the defendant, lives up to the agreed outcome. Enforcement of contracts, settlements, and judgments is a matter of sufficient internal motivation for the defendant, supplemented by external incentives when needed. Take the example of a consumer who is entitled to a sum in damages determined by a neutral adjudicator. The seller of the goods may be motivated to comply because he accepts this as a fair decision (Beersma and De Dreu 2003; Tyler 2006; Tyler 2006; Hollander-Blumoff and Tyler 2008), because he wants to maintain a good reputation with customers, because he sees the neutral as an authority, because other conform to the law as well (Cialdini and Goldstein 2004), or because of the threat of sanctions from the justice system (Kennett 2000). Plaintiffs have always been creative in finding ways to induce compliance. Fafchamps studied how commercial contracts are enforced in Ghana. He shows that compliance with contractual obligations is mostly motivated by the desire to preserve personalized relationships based on mutual trust. Harassment is the main form of debt collection. Other enforcement mechanisms – court action, reputation effects, use of illegitimate force – are less important. Contract renegotiation is common, suggesting that compliance to outcomes is often bought by additional concessions (Fafchamps and Lund 2003; Fafchamps 2004). The formation of groups that reserve important relationships to group members also helps to enhance enforcement. These groups include trade organizations for commercial contracts. Clans, local communities and extended families may take care of compliance with land use agreements, employment contracts, and family relationships (Ouchi 1980; Greif 2006). Property rights on land are often collectively held so that the group can jointly protect the property against threats from outsiders (Deininger 2003; Fitzpatrick 2005). However, these ways of organizing compliance have high costs and only work in a limited number of situations. Self-enforcing contracts can help if reputation for either one of the parties is important enough to perform, or if the value of the transaction is low (MacLeod 2007). Strong groups also have their drawbacks. The number of transactions with people other than group members will be more limited. People from within the community cannot easily sell their property to outsiders or trade with them in other ways. Employment relationships or marriages with outsiders are more difficult if compliance is organized in this way. Because the group is ‘closed,’ the likelihood of conflict with outsiders who want access to its resources is substantial. Inside the group, the members organize their own enforcement, and it may be that individuals are severely punished for minor offences, or that there is an internal hierarchy in which some people (men, people with resources such as political connections) do markedly better than others (women, poorer persons) (Goldstein and Udry 2008). If we look at the most common categories of disputes again, it is clear that these private enforcement mechanisms will often not help. Quality of goods or services will mostly be a problem if the parties expect little future interaction and if the trade has a high value. Conflicts in long term relationships are often related to termination and end in settlements where one party has to pay a sum of money as compensation, together with some obligations for both parties regulating their future (lower level) interactions. The members of the group may not have sufficient reason to help the plaintiff to enforce these outcomes against another member of the same community. In case of tort claims, or human rights violations, where compensation or some sort of sanction is likely to be part of the outcome of the dispute resolution process, next to obligations to refrain from similar acts in the future, the group may have insufficient means to influence an outside perpetrator. ���� � From the perspective of the plaintiff, organizing compliance can thus be a difficult task. Many different people may have to be involved in order to gain sufficient influence over the defendant. B. Current Interventions by States Making relationships transparent through contracts and property rights, as well as enforcement of these rights, is often seen as one of the core tasks a government in a free market economy should perform. As we may expect by now, governments are not necessarily very effective in overcoming these transaction cost problems. They have found it difficult to set up registrations, provide contracting formats, and organize enforcement. In many countries, these government services still do not reach a substantial proportion of the population. Taking a closer look at the way these policies influcence transaction costs may help to understand why. 1. Registrations of Identity One way the government can help to make relationships transparent and reduce the costs of enforcement is by the registration of rights. This begins with giving people a means to prove their identity so that they can be recognized as owners of property, parties to a contract, or beneficiaries of social security (Setel, Macfarlane et al. 2007; Szreter 2007; Barendrecht and Van Nispen 2008; Commission on Legal Empowerment of the Poor 2008; Sabates-Wheeler, Devereux et al. 2009). Informal ways of ascertaining identity have emerged in many communities. Szreter describes how Anglican churches set up parish registers in rural 17th century England, and thus satisfied a local need to establish age, lines of inheritance, legitimization of bastardy, and eligibility for primitive forms of social security. Obtaining this registration was an important reason to be a member of the church, so the church was eager to supply this service. Once migration to the cities started in the 19th century, the local parish registers could not keep up with the demand for registration and the state took over (Szreter 2007). Building an effective registration system is difficult and costly. A birth registration system requires an initial investment through some form of information technology. Then, it is necessary that parents have sufficient incentives to go through the registration procedure, and bureaucrats have sufficient reasons to help them. Network effects add to the transaction costs. If many people refrain from registering because they face high costs of queueing or travelling, the system becomes unreliable. Entering the system often has high costs because parents have no valid documents themselves, and must first start formal court procedures to obtain these. They may also fear becoming subject to taxation. Civil servants may have insufficient incentives to help the poorest of the poor to register. For them, the transactions that are necessary to make registration happen are less likely to occur (Setel, Macfarlane et al. 2007; Barendrecht and Van Nispen 2008). 2. Registrations of Property Rights Registrations of property rights in land (titling) make clear which persons have which rights to use, sell, or appropriate which pieces of land. Informal ways of making entitlements to land transparent develop locally, because communities profit from this once their land has a certain threshold value (Rakodi and Leduka 2004). At later stages of development, this is typically a task that is taken over by governments. More security and transparency in entitlements to land has been shown to lead to a higher investment of urban squatters in their homes (Field 2005), better access to the labour market (Field 2007), better health conditions, and other social benefits (Payne, Durand-Lasserve et al. 2007). Security of interests in rural land is also linked to higher investment and productivity (Goldstein and Udry 2008; Fenske 2009; Galiani and Schargrodsky 2009). The role of titling in this, however, is contested (Deininger 2003; Cousins, Cousins et al. 2005; Payne, Durand-Lasserve et al. 2007; Otto 2009). The link ���� � between having a formal title and increased access to credit (with land as a collateral) seems to be weak (Payne, Durand-Lasserve et al. 2007). Property rights protection through registration (titling) is difficult to achieve. Boundaries have to be surveyed, documents must be drafted, and registration has to be undertaken by a trustworthy neutral. If conflicting claims of property arise, they have to be decided on by a neutral or another third party. Tenure rights are often ambiguous, or in the hands of poorly delineated families or communities, so there is a lot of sorting out to be done before a piece of land can be registered in one person’s name. This registration almost certainly has some distributive effects (Knight 1992; Payne, Durand-Lasserve et al. 2007). Thus, it becomes attractive to use the system to one’s advantage, which the affluent may do better than the poor, and men better than women. Besides being tools of the powerful, registrations can quickly become outdated, as use patterns change and not every person involved has incentives to register his rights on land. Finally, having a formal title means little if there is no protection against eviction by the more powerful. In summary, titling systems require many transactions between many people that must all work well. The network effects are such that using the system becomes more valuable if more people participate. This is unlikely to occur in rural settings (Cousins, Cousins et al. 2005; Otto 2009) and not always likely in urban settings (Lanjouw and Levy 2002). 3. Default Rules for Contractual Relationships Governments also play an important role in making explicit what the parties in a relationship can expect from each other in the future. The market is very active here, as lawyers supply boiler plate clauses that people can use in their contracts. But they do so against the background of default rules for contracts that are government made. If the parties have not regulated their future relationship in an explicit contract, it will be assumed that they have made the same arrangement as others in a similar situation (a majoritarian default rule, see Ayres and Gertner 1989; Korobkin 1998). Civil codes and case law determine these default rules. Because of the way the information market operates, it is questionable whether sufficient contracting expertise reaches the citizens who need it. Lawyers and other legal information providers are probably hesitant to share this information widely. Governments may also have insufficient incentives to produce suitable default arrangements for – say – the consequences of divorce, settlement of property disputes in a village, or an employment relationship that is likely to be adjusted many times during a 10 year period. In this respect, default rules are similar to objective criteria. Legislators and courts will not profit much from them, and have to spend a lot of effort on formulating them (see Section VB). Another problem is that drafting default rules is usually left to lawyers. They may be rather task-oriented, and use a rights and obligations approach to the relationship that does not take into account the emotional and relational issues that also determine whether a relationship will be successful. . A final transaction cost problem mentioned in the contracting literature is that default rules are sticky. Both parties have to agree to deviate from them, and this raises the costs of contracting for the parties to relationships for which the default rule is not appropriate (Korobkin 1998; Ben-Shahar and Pottow 2006). 4. Enforcement by State Because there are situations in which market mechanisms clearly fail to produce enforcement, a demand for public enforcement arose (Polinsky and Shavell 2000). State enforcement typically builds on the authority of courts and uses the threat of sanctions. There is ample evidence that this type of enforcement can work and is necessary, ���� � particularly for arms length commercial transactions such as providing credit (Jappelli, Pagano et al. 2005). Countries differ in how they organize public enforcement of dispute outcomes: some leave it to the courts, some organize a regulated private profession to deal with it, a few put the executive in charge, and others have a system of mixed responsibility (Henderson, Shah et al. 2004). Public enforcement of court decisions is problematic in most countries, however (Kennett 2000). It consists of a process of finding assets of the debtor, bringing them under control of the creditor, letting them be sold publicly, and bringing the proceeds in the hands of the creditor. Debtors who frustrate this process may have to be threatened with sanctions and put in jail (Henderson, Shah et al. 2004). This requires an intricate cooperation between plaintiffs seeking enforcement, bailiffs, police, banks, and bankruptcy lawyers to sell the property of a debtor and allocate the proceeds. Besides these network problems, government failures that are likely to be present are absence of information (about the assets of the debtor), and insufficient incentives to perform the tedious and sometimes dangerous task of making people pay what is due to others. Henderson et al. report five categories of problems as the most important obstacles to enforcement: the efficiency and integrity of the judicial enforcement and justice system, delays, costs, inadequate access to information, and lack of accountability of the actors in the enforcement process (Henderson, Shah et al. 2004). C. Promising Policies What can governments or NGOs do to lower the transaction costs of making expectations in relationships explicit and ensure that these solutions to a dispute are enforced? This is a far-reaching question, and the answers are strongly related to the core functions of contract law, property law, and registration of rights. These functions are extensively debated in economics, law, development studies, and other disciplines that theorize about the ordering of relationships. We cannot do more than indicate the type of reasoning that is suggested by the transaction costs approach and link it to some of the research that has recently become available. 1. Formalization As Is and Step by Step Identity registrations and registrations of property rights are valuable tools for making relationships explicit and transparent so that people can rely on each other. In the process of registration, however, rights are allocated. People who are registered as citizens get access to pensions, schools, and other government services. Registering property means a piece of land will now be owned by a man, a community, and (less frequently) a woman or a farmer. Because of these distributive effects, the dynamics of disputes may arise (Payne, Durand-Lasserve et al. 2007). The registration system needs to have a mechanism to resolve these disputes fairly, making it more costly to operate, and less accessible. The emerging consensus is to lower these transaction costs by gradual formalization. Formalization processes should increase security of tenure instead of allocating property rights. Giving people an address on a street, and providing infrastructure (roads, sewerage, water) creates increased trust that their position will be recognized. It already helps if personal use of land is registered, and this can later be upgraded to long-term leases or freehold (Durand-Lasserve and Selod 2007). If different people from a family or a group use the land or have other claims on it, registering these claims at least protects the groups against outsiders. Registration of transactions and outcomes of disputes about land is generally less costly than registering rights because it focuses on situations where the clients felt a direct need for transparency, thus it is more demand-driven. These non-formal ways of increasing tenure security focus on registering the situation as it is and as the need arises. Registering is seen more as making existing relationships ���� � transparent than making them legal. Transparency can be achieved by noting which use has been made of land by which persons, for how long, and by which agreement with whom. Such a more open system does not try to resolve all issues that may arise, but may do enough to make the relationships workable for the foreseeable future (Payne, Durand-Lasserve et al. 2007). If new disputes arise, they can be resolved more easily on the basis of this information. The outcomes of the disputes can be made transparent in the system, and thus the registration will gradually reflect more of the legal status of the land. The gradual approach fits in the paradigm of minimizing error costs and decisions costs. Economies of scale can be reached in large scale titling programs, and it is important to look for them, but taking just one big leap to registration of individual property rights for every piece of land has high decision costs. It can also lead to unfair outcomes and, thus, high costs of error. A similar step by step approach may work for identity documents. Uncertainties in birth dates, misspelling of names, or even uncertainties about parentage can be seen as an obstacle to registration. If these issues can be resolved quickly, the increased certainty is valuable. But in many countries, these issues require more extensive and costly procedures on higher levels of administration, or even higher courts (Barendrecht and Van Nispen 2008). Besides making procedures less formal, and thus reducing the decision costs (see Section VI.C), one option is simply to live with the uncertainties for the time being. A person is better off with identity documents showing that he was born either on 24 March 1980 or 24 March 1982 compared to not being able to prove his identity at all. Sorting out his birth date can probably wait until he is close to the age where he is entitled to a pension. Access to registration is in many ways similar to access to the neutrals who have to settle a dispute. Clients can become dependent on the registrar in similar ways. A viable strategy is to make the civil servants in charge of registration more responsive to client needs. It helps if clients have multiple points of access, so that they can avoid civil servants who have backlogs or ask for bribes. This is available in the e-seva projects in Andhra Pradesh, India, where citizens can use kiosks in different sites to interact with the government about permits and registrations (Commission on Legal Empowerment of the Poor 2008). 2. Menus for Making Relationships Explicit The market for contracts, settlement agreements, and written judgments is again a market for expertise. Unfortunately, the recurring public good problem and experience good problem make it difficult to get the right expertise to clients. Standard documents that make the relationship explicit are difficult to obtain. These documents would lay down the expectations that parties could realistically have about their future relationship in case of a divorce, a neighbour dispute, or a termination of employment. Some kind of ex ante formalization of long term relationships can also be beneficial, as in a marriage contract, a will, or a contract about cooperation between business partners. Here, there seems to be ample room for innovation. Instead of one set of default rules provided by the state, the parties can be offered a menu of choices for suitable contractual arrangements (Ayres 2006). Production and publication of fair and efficient arrangements by private parties can be stimulated (Hadfield and Talley 2006). Governments, or private parties, could also begin to certify certain standard arrangements as fair and valid. Instead of regulating agreements by limiting freedom of choice ex post through courts that invalidate a contract, governments could stimulate productive and fair relationships ex ante. The way relationships are regulated can be enriched with knowledge of the social sciences. The legal way of making expectations explicit is to write down rights and ���� � obligations. Relationships, however, are more than tasks and duties. It also helps if people know about each others’ interests, wishes and fears. Besides commercial interests, relational and process interests can have a place in a contract. Besides sanctions and bonuses, it can be useful to talk about situations in which both parties consider the relationship to be a success or a failure. Besides an allocation of risks, it is useful that the parties think about the main threats to the relationship, and determine ways to share gains and losses if these materialize (see Section V about objective criteria). In contracting practice, there is some activity aimed at reinventing relational contracting in this direction. In complex infrastructure projects, contract charters can form the basis for the cooperation between the parties (Walker and Hampson 2003; Van den Berg and Kamminga 2006). In these charters, the parties lay down how they see the relationship and how they will communicate. Another way in which governments can facilitate the market for stabilizing relationships is by ensuring that contracts can easily be used across jurisdictions so that economies of scale can reached. The basic tensions and interests caused by an employment relationship are similar in Korea, the Netherlands, and Zimbabwe. Cultural differences will certainly exist, and these can be reflected in different templates from which the parties can choose. Contract law, however, departs from freedom of contract everywhere, and governments can take care that contracting parties are not surprised by unexpected forms of illegality. The least governments could do is to list the situations in which their courts will not enforce a clause in the types of contract that are most essential for the economy. This sort of regulation would save parties involved in such a contract from having to ask for specialized legal advice. 3. Facilitating Compliance Mechanisms The transaction costs of organizing compliance can be reduced by making it easier to exchange information about compliance. People tend to improve enforcement by investing in connectedness: if they share more information with more people about performance of a debtor, they have more impact on his reputation (Dhillon, Rigolini et al. 2006). This connectedness can probably be facilitated by offering internet-platforms on which information about compliance can be shared. EBay enables buyers to exchange information about sellers. Hotels and restaurants are now routinely evaluated by customers on the internet. Internet networking sites such as Facebook and LinkedIn make it possible to share information about people in new ways as well. Likewise, the status of compliance with settlements or judgments can be reported. This might start with a neutral mention of an issue as unresolved. In case of continued non-performance, the information could go more towards the direction of shaming. It would certainly be necessary to protect debtors against people abusing such tools, but this protection is also needed for the existing enforcement mechanisms. Other strategies to increase access to compliance can be developed. The literature on enforcement suggests simplifying procedures for enforcement and privatizing enforcement tasks whilst putting them under neutral supervision, and organizing access to information about the whereabouts of assets of the debtor (Henderson, Shah et al. 2004). 4. What Works When facilitating the market for obtaining enforcement, governments and NGOs should keep in mind that the basic technology of providing compliance is not only a matter of incentives. The joint effects of intrinsic motivation and of external triggers living up to the decision are what matters. There are many reasons why people might comply with what they have agreed on as a dispute solution or with a judgment by a neutral. They may consider this to be their duty, feel it is fair to do so, or be afraid of sanctions. The psychological literature on compliance suggests several mechanisms to induce ���� � compliance: reciprocation, the human tendency to be consistent in their acts, imitation of what others do, positive reinforcement, identification, and authority (Cialdini and Goldstein 2004). A culture where disputes are considered to be normal, where solutions are found in cooperation between the parties and a neutral, and where compliance is expected can help at least as much as the threat of formal sanctions. These approaches have clear links to the attempts in many countries to decrease recidivism. In the ‘What Works’ literature, the internal motivation of perpetrators to participate in programs is seen as a crucial factor (MacKenzie 2006; Wormith, Althouse et al. 2007). In many other ways, these programs are combining classical enforcement (monitoring, increasing the probability of sanctions) with positive incentives and factors that are known to enhance internal motivation (structure, respectful treatment, conditional help with obtaining housing and work). Expertise regarding law enforcement in order to reduce crime is far more developed compared to the know-how on enforcement of property rights and contracts. The similarity between both types of enforcement is their attempt to induce people to have more respect for the legitimate interests of others. VIII. Complementarities A. Market Analysis Talking about a system suggests something more than the sum of its parts. That is certainly true for dispute systems (Bendersky 2003). Each of the five justice services we discussed is more valuable if the other services are supplied as well (Barendrecht 2009). Stimulating the defendant to enter a cooperative dispute resolution process (Task 1) is a more valuable service if there is adequate help with negotiation (2), information about norms for distributing value (3), and the option of a low cost neutral decision (4), which can be enforced (5). A plaintiff gets more value from negotiation assistance (Task 2), if he has the option of asking for a low cost neutral decision (4) that is enforceable (5). Norms for distributive issues (Task 3) make adjudication (4) easier and the ideas about fairness incorporated in these norms make it more likely the outcome can be enforced (5). A good basic structure for making an agreement explicit such as a standard contract (Task 5), can also be used to identify issues for negotiation (2), and serve as a template for a judgment (4). These complementarities, or connectedness between services, are a cause of transaction costs. Before suppliers can offer effective services, they have to ensure that the other services are available as well. This network has to be established and adjusted if an innovation takes place in one of the tasks. If mediation services provide better negotiation assistance, this creates new opportunities for adjudication as well. Providers of legal services understand this and try to offer integrated services. Lawyers help plaintiffs to contact defendants, coach them in negotiations, inform them about distributive issues, and litigate for them. Judges decide cases, but nowadays also help clients to settle distributive issues, and sometimes even to problemsolve in integrative negotiations. This coordination may be difficult, however. Judges do not interact frequently with lawyers, because they want to keep a distance out of worries to lose their independence. At the interfaces between negotiation, bargaining, and adjudication there is also competition between lawyers and judges. Judges tend to promote a more active and problemsolving attitude of courts, whereas lawyers like courts to stay passive and only become active if one of the lawyers asks them to intervene. ���� � B. Current Interventions by States 1. Legal System Reform: Law and Development Governments have invested in making dispute services work in concert. Many programs aimed at enhancing the rule of law in developing countries have organized efforts at various levels of the system. Codification projects providing information about norms were combined with investments in improving the court system, and sometimes also with setting up an independent legal profession that can help to negotiate disputes (Jensen 2002; Carothers 2006; Dam 2006). The gist of the papers assessing these policies is a negative evaluation of their effects (Davis and Trebilcock 2008; Tamanaha 2009). This lack of success should hardly be a surprise, if we use the perspective of the transaction costs on the markets for justice. These policies tend to combine approaches that were not very effective in making dispute transactions happen in the first place. Moreover, they did not address some important elements of the dispute supply chain: having people meet, helping them to negotiate, organizing low cost access to neutrals, and guaranteeing enforcement. 2. Reforms in Developed Economies In developed economies, policies that aim to reinforce all five necessary and sufficient elements of a dispute system are unheard of. Civil procedure reform (Zuckerman, Chiarloni et al. 1999) focuses on the rules of procedure; court reform on the organization of courts; mediation programs on letting judges send people to mediation (Wissler 2004); codification efforts on writing down rights and obligations; tort reform on changing rules of tort law (Currie and MacLeod 2008); consumer protection law on improving the substantive rights of consumers; reforms of the legal profession on increasing competition among legal service providers. All tend to be separate issues. They are dealt with at different times by different commissions and with different constituencies. Improvements in one section of the justice system is unlikely to have effect, though, if other parts of the system are not taken into account as well. Referring disputants to mediation is not very effective if it happens just before the court decides, and most of the costs of litigation haven been made. Improving the organization of courts is unlikely to be beneficial for clients, unless the procedures by which courts adjudicate are also reconsidered. Changing substantive rules of tort law without looking at the incentives on lawyers and courts makes little sense. C. Promising Policies While the connectedness between various types of dispute resolution services is a problem, it is also an opportunity. If the weakest links in the supply chain can be found and addressed, the other services will become more accessible and profitable to supply as well. 1. Supply Chain Approach to Access Strong complementarities suggest an integrated, supply chain approach to justice services. Governments could focus on the services with the biggest complementarities, hoping that improvements in one part of the dispute resolution market will spill over to adjacent markets. Low cost access to neutrals, for instance, is an efficient way to improve the negotiation climate in the shadow of the law and to drive down the aggregate costs of dispute resolution. This is especially true if judges or other neutrals approach the problem in the same way as the clients do in their negotiations. If legal rules and procedures used by the court focus on interests and link to the formats of (integrative and distributive) negotiations, the supply chain will run more smoothly. Low costs of access are more affordable and, thus, can be paid by the parties who use the services themselves in the �� � � form of court fees, which is also a way to make neutrals answerable to their clients more directly. Such a policy may be hard to implement, though, because it requires rethinking the relationship between courts, their clients, and their sponsors within government. Another policy with positive spillovers is the publishing of the going rates of justice for the most important disputes through guidelines or otherwise. As we saw, this not only makes bargaining failure less likely, it also enables clients to monitor the lawyers that help them and the neutrals who decide their distributive issues. Because expectations of all players involved will be more aligned if objective criteria are widely shared, the overall costs of disputing will drop. Thus, justice transactions become more attractive to conclude, and more accessible for clients. This policy is a modern way to fulfil an old ideal: codification. A final example of choosing a policy with strong complementarities is to invest in default formats for common relationships. Marriage contracts, employment agreements, and business partnerships can be made explicit in standard ways, with menus for different arrangements that deal with the typical sources of tension and conflict. These formats can bring the benefits of explicit contracting within reach of every citizen. Such standard documents can also take over the functions of contractual default rules, serve as a template for dispute resolution, and facilitate the writing of judgments by courts. 2. Monitoring, Accountability and System Ownership Because of the strong complementarities between the different justice services, it also makes sense to monitor the performance of the system. Current monitoring systems and measurement efforts tend to focus on the performance of courts (Cabrillo and Fitzpatrick 2008; Albers 2009). System wide performance measurement would also gauge the abilities of the system to facilitate settlement negotiations and to organize enforceable outcomes. Besides the performance of courts as decision makers, the availability of clear substantive rules (objective criteria) and the enforceability of outcomes would be assessed. Such a method could measure the time and cost for the average user to go through the process, from the first attempt to obtain outside help to get in contact with the other party, up to the final outcome (Gramatikov, Barendrecht et al. 2008). The quality of the procedure and the quality of the outcome can be measured against several criteria (Gramatikov, Barendrecht et al. 2008), preferably from the perspective of the user (Masser 2009). A monitoring system could also try to visualize the number and the complexity of the steps an individual has to take in order to obtain an outcome, as demonstrated by the work of De Soto and several others (De Soto 2000; Djankov, La Porta et al. 2003; Masser 2009 and the yearly Doing Business reviews by the World Bank). Supply chain monitoring makes transparent what can be expected from suppliers in the system. If employment disputes are costly to deal with and lead to low quality outcomes, governments can revise their policies in this area. Courts, legal services providers, and possible new entrants in the relevant justice market will adjust their services in response to this information as well. Clients can make more informed decisions about using the system, and press for change if necessary. 3. Focus on Problem Categories Making a justice system work across the board is a daunting task for civil servants at ministries of justice and for managers within the judiciary. They often feel responsible for dealing with every thinkable dispute and crime. If they see their task in this way, they are likely to issue comprehensive codes and procedural rules that are general in character. Courts tend not to be very specialized, and deal with a broad variety of disputes. Performance of such a broad system is difficult to measure, because the same procedure is applied to a great variety of disputes with different issues, different needs for fact-finding and different client budgets. �� � � Focusing on problem categories, as well as improving the supply chain for these categories, seems to be a more successful approach. Law firms tend to specialize, and court specialization is believed to lead to higher efficiency (Cabrillo and Fitzpatrick 2008). The complementarities in a dispute system point in the same direction. It makes more sense to systematically improve access to justice for situations such as divorce, employment disputes, and business conflicts, as opposed to trying to reform courts, to invest years in overall codification, or to subsidize legal aid in general. IX. Conclusions Our analysis took the perspective of justice as a set of goods that are delivered by people to other people. This market for justice does not work perfectly, and that is where governments intervene with justice policies. The analysis from the perspective of transaction costs suggests that many justice policies are less than a perfect fit to the problems they need to address. Table 8 summarizes the results. If two opponents find it difficult to choose a procedure, it does not help to offer them mediation, send them each to a lawyer, or make sophisticated but expensive litigation available. Stimulating cooperative dispute resolution by social norms, facilitating the market for neutral dispute services, and requiring repeat-players to offer an accessible dispute system is likely to be more effective. Access to simple, low-cost default procedures is needed to induce fair settlements. Giving plaintiffs a choice between different procedures and neutrals – without consent of the defendant being necessary – can help to achieve this. Accountability of courts (and other neutrals) to clients is also important. Existing checks and balances on courts, such as extensive rules of procedure and appeals, have important disadvantages. Focusing on rules of procedure easily lead to bureaucracy and makes procedures less transparent for disputants. Appeals tend to improve the formal, legal quality of outcomes. But they do not stimulate judges to diminish the costs of litigation, to provide procedural justice, and create outcomes for disputes that fit the needs of the parties. Moreover, these mechanisms do not influence the quality of settlements, which are the primary way to resolve disputes. Where the public good character of information is the problem, governments can create additional incentives to supply the needed information. Without such incentives, it is highly unlikely that negotiation expertise, codes, precedents, or law review articles will ever meet the information needs of those clients that cannot afford to hire a lawyer. Governments and NGOs can make information more accessible by providing public legal education programs or needs-based codification, by stimulating production of guidelines for settling distributive issues, or by developing open source models for sharing information about objective criteria. Structuring settlement negotiations, menus for contractual relationships, and certification of fair standard contracts are also helpful ways to enhance access to justice. The complementarities between justice services suggest an integrated approach, aimed at the entire supply chain for each type of disputes. Monitoring, accountability and system ownership are highly important here. Mediation programs, codification projects, reform of civil procedure, or projects aimed at improving access to courts are less likely to be effective than measures that target all elements of dispute systems for categories such as property disputes, employment issues, or business conflicts. Making powerful defendants participate and creating transparency of property rights, and their enforcement, are best seen as gradual processes, in which many people contribute to a portfolio of incentives on the defendant to cooperate. ���� � Tasks Basic technology Sources of Transaction Costs Existing Policies Additional sources of transaction costs Possible innovative policies/services that lower transaction costs 1. Meet Make costs and benefits of participation for defendant higher than costs and benefits of fighting, or avoiding Difficulties of selling cooperative dispute services to opponents: - Psychological barriers - Strategic barriers Cooperation between many to make powerful defendants cooperate 1. Prohibition of violence and enforcement of this prohibition 2. Judgment by default 3. Stimulating mediation 1. Costs of monitoring and enforcement prohibition violence 2. Costs of organizing credible threat of default judgment 1. Stimulating cooperative dispute resolution by social and legal norms 2. Opening markets for neutral dispute resolution services 3. Regulating ex ante dispute resolution agreements 4. Requiring repeat-players to offer an accessible dispute system 5. Co-opting powerful defendants gradually 2.Talk Support integrative negotiation (interest based) Information about negotiation and conflict management is public good and experience good 1. Framing disputes in terms of rights and obligations 2. Legal aid 3. Mediation aid 1. Polarization in relationship governance 2. Increased need for legal advice 3. Search, bargaining, coordination and monitoring costs client-lawyer relationship 4. Increased costs of hiring neutral 5. Unilateral legal services create extra demand at other side (externalities) 1. Education in negotiation and conflict management 2. Economies of scale in communication and negotiation advice 3. Structuring settlement negotiations 3. Share Supply information about fair shares (sharing rules, objective criteria) Information about fair solutions (objective criteria, going rates of justice) is public good and experience good 1. Codification 2. Precedents 3. Legal academics 1. Governments lack information about client needs and going rates of justice 2. Insufficient incentives to produce and publish useful legal information 3. Limitations imposed by political process 1. Improve incentives to make guidelines 2. Privatize production of objective criteria 3. Non-binding rules and precedents 4. Needs based codification (instead of comprehensive codification) 5. Sharing rules (open source) 4. Decide Make option of a neutral decision available (at low cost) Difficulties of concluding ex post dispute resolution agreements Insufficient incentives on neutral to provide fair/low cost processes 1. Setting up courts 2. Extensive rules of procedure 3. Protecting clients through appeals 4. Independent courts 1. Bureaucratic procedures 2. Appeals increase costs of access 3. Appeals distort incentives to improve quality and diminish costs of procedure 4. Independence is shield against incentives 1. Simple, low cost default procedures 2. Accountability towards clients 3. Giving plaintiffs choice (competition between neutrals) 4. Terminating unhelpful policies (obligatory legal representation, etc.) 5. Stabilize Supply tools to make arrangements explicit; Make costs and benefits of compliance higher than those of non- compliance Information about contracting and making relationships transparent is public good Enforcement requires transactions with many participants 1. Registrations of identity 2. Registrations of property rights 3. Default rules contracts 4. State enforcement 1. Distributive effects of allocating rights to individuals 2. Information is public good 3. Insufficient incentives from government 4. Costs of imposing sanctions 5. Coordination and monitoring costs 1. Gradual formalization as is, with access to dispute resolution 2. Menus for making expectations in relationships explicit 3. Certification of fair standard contracts 4. Facilitating reputation mechanisms that enhance compliance Supply Chain Approach Strengthen links between tasks Complementarities (connectedness) 1. Legal system reform 1. Insufficient incentives from government 1. Supply chain approach to access 2. Integrated dispute resolution services 3. System monitoring and ownership 4. Focus on problem categories Table 8 : Sources of Transaction Costs on Markets for Justice and Policies that may Reduce them. ���� � In some ways, governments may do too much. A court decision on all issues is usually available, although it may be sufficient that courts facilitate settlement and decide on the remaining distributive issues. Governments also tend to have a monopolistic attitude towards production of law, supply of neutrals, and enforcement of law. This may crowd out market activities in these areas. Governments tend to regulate legal services in ways that are not clearly linked to the goal of resolving disputes in a fair and efficient manner, and their regulation efforts seem poorly related to the causes of market failure and government failure. Analysis of the market for justice services also sheds new light on the viability of business models for providers of legal services. The success of the one-lawyer-one-client model is probably not so much a conspiracy of the legal profession (Hadfield 2000), but can instead be explained by the tendency of disputants to look for a trusted adviser in combination with the public good and experience good character of information. This model is reinforced by the prevailing framework of rights and obligations as tools to solve disputes. The one-lawyer-one-client model is not viable, however, for serving justice needs of the poor. This adversarial model is also less attractive in the light of modern conflict resolution and negotiation technology. Mediation fits these developments, but it is not viable as a business model because of the difficulties disputants face when they have to agree on a dispute process ex-post. Finally, the transaction costs approach of this paper offers a new explanation why attempts to implement the rule of law top down have largely failed. Writing legislation, setting up courts, organizing the procecution, and regulating the legal profession is unlikely to create access to justice. Such justice policies have no answer to the basic transaction costs problems that plague the market for justice. Affordable and sustainable justice services will emerge bottom up, because people have justice needs. Governments should facilitate this, by lowering the costs of agreeing to a dispute procedure, by stimulating the dissemination of information that fits the needs of clients, and by lowering the costs of organizing enforcement. The analysis thus suggests that smarter justice policies are possible. The basic technologies for supplying justice are available. If the transaction costs can be lowered, these technologies can lead to innovation on the market for justice services (Islam 2003; Hadfield 2008). Legal entrepreneurs, courts, and NGO’s may step in to develop low cost approaches that fit the basic technologies and the best new practices. Examples are development of neutral “meet and talk services”, internet portals for objective criteria/going rates of justice, low cost/high quality default procedures, procedural rules that provide choice of neutrals for plaintiffs, formats for making expectations explicit in common relationships, and reputation mechanisms for enforcement. Governments should stimulate these innovation processes. They, and the NGO’s working in the justice sector, can develop smart institutions that facilitate justice markets in a way that minimizes transaction costs. The state can be guardian of the rule of law by letting justice grow, on the micro- level, from the relationships between clients and justice providers. ���� � Literature Adler, M. (2008). The Potential and Limits of Self-Representation at Tribunals: Full Research Report End of Award Report. Swindon, ESRC Albers, P. (2009). "The Asssesment of Court Quality: Hype or Global Trend?" Hague Journal on the Rule of Law 1(01): 53-60. ALI and UNIDROIT (2004). The Principles of Transnational Civil Procedure. Allred, K. G. (2005). Relationship Dynamics in Disputes: Replacing Contention with Cooperation. Handbook of Dispute Resolution. M. L. Moffitt and R. C. Bordone. New York, Jossey-Bass: 83-98. American Bar Association (1994). Comprehensive Legal Needs Study. Chicago, American Bar Association. Ayres, I. (2006). "Menus Matter." The University of Chicago Law Review: 3-15. Ayres, I. and R. Gertner (1989). "Filling gaps in incomplete contracts: an economic theory of default rules." Yale Law Journal: 87-130. Baarsma, B., F. A. Felsö, et al. (2008). Regulation of the legal profession and access to law, Report commissioned by the International Association of Legal Expenses Insurance (RIAD), SEO Economic Research. Barendrecht, M. (2008). In Search of Microjustice: Five Basic Elements of a Dispute System. SSRN. Barendrecht, M. (2009). "Best Practices for an Affordable and Sustainable Dispute System: A Toolbox for Microjustice." SSRN. Barendrecht, M. (2009). Providing Microjustice: Understanding the Market for Justice, SSRN. Barendrecht, M., K. Bolt, et al. (2006). "Appeal Procedures: Evaluation and Reform." Barendrecht, M. and B. R. De Vries (2006). "Fitting the Forum to the Fuss with Sticky Defaults: Failure on the Market for Dispute Resolution Services? ." Cardozo Journal of Conflict Resolution 7(1). Barendrecht, M., P. Kamminga, et al. (2008). Priorities for the Justice System: Responding to the Most Urgent Legal Problems of Individuals, SSRN. Barendrecht, M. and P. Van Nispen (2008). Microjustice, SSRN. Barendrecht, M. and J. H. Verdonschot (2008). Objective Criteria: Facilitating Dispute Resolution by Information About Going Rates of Justice, SSRN. Beenstock, M. and Y. Haitovsky (2004). "Does the appointment of judges increase the output of the judiciary?" International Review of Law and Economics: 351-369. Beersma, B. and C. K. W. De Dreu (2003). "Social Motives in Integrative Negotiation: The Mediating Influence of Procedural Fairness." Social Justice Research 16(3): 217-239. Ben-Shahar, O. and J. Pottow (2006). "On the Stickiness of Default Rules." Florida State University Law Review 33. Bendersky, C. (2003). "Organizational dispute resolution systems: A complementarities model." The Academy of Management Review: 643-656. Bingham, L. B. (2008). "Designing Justice: Legal Institutions and Other Systems for Managing Conflict." Ohio St. J. on Disp. Resolution. Bordone, R. C. (2008). Dispute System Design: An Introduction. Botero, J. C., R. La Porta, et al. (2003). The World Bank Research Observer 18(1): 61-88. Botero, J. C., R. La Porta, et al. (2003). "Judicial Reform." The World Bank Research Observer 18(1): 61- 88. Bovbjerg, R. R., F. A. Sloan, et al. (1989). "Valuing Life and Limb in Tort: Scheduling “Pain and Suffering”." 83 NW. U. L. (REV. 908. ). Bovens, M. (2005). Public accountability. The Oxford Handbook of Public Management. E. Ferlie, L. Lynne and C. Pollitt. Oxford, Oxford University Press: 182-208. Bovens, M. (2007). "Analysing and Assessing Accountability: A Conceptual Framework." European Law Journal 13(4): 447-468. Brousseau, E. and E. Raynaud (2006). The Economics of Private Institutions: An Introduction to the Dynamics of Institutional Frameworks and to the Analysis of Multilevel Multi-Type Governance, SSRN. Brunet, E., R. E. Speidel, et al. (2006). Arbitration Law in America: a Critical Assessment, Cambridge University Press. Buck, A., P. Pleasence, et al. (2008). "Do Citizens Know How to Deal with Legal Issues? Some Empirical Insights." Journal of Social Policy 37(04): 661-681. ���� � Buscaglia, E. and M. Dakolias (1999). Comparative International Study of Court Performance Indicators. A Descriptive and Analytical Account., The World Bank. Buscaglia, E. and J. van Dijk (2003). Controlling organized crime and corruption in the public sector. Forum on crime and society, United Nations Pubns. 3. Cabrillo, F. and S. Fitzpatrick (2008). The Economics of Courts and Litigation. Cheltenham, UK, Edward Elgar. Calabresi, G. (1999). A common law for the age of statutes, Lawbook Exchange Ltd. Cappeletti, M. and B. Garth (1978). "Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective." Buffalo Law Review 27(181). Carothers, T., Ed. (2006). Promoting the Rule of Law Abroad: In Search of Knowledge. Washington D.C., Carnegie Endowment for International Peace. Carothers, T. (2007). "The "Sequencing" Fallacy." Journal of Democracy 18(1). Carraro, C., C. Marchiori, et al. (2006). "Advances in Negotiation Theory: Bargaining, Coalitions and Fairness." World. Choi, S. J., G. M. Gulati, et al. (2009). "Are Judges Overpaid? A Skeptical Response to the Judicial Salary Debate." The Journal of Legal Analysis 1(1): 47-117. Cialdini, R. B. (2007). "Descriptive Social Norms As Underappreciated Sources Of Social Control." Psychometrika Vol. 72(No. 2): 6. Cialdini, R. B. and N. J. Goldstein (2004). "Social Influence: Compliance and Conformity." Annual Review of Psychology 55: 591-621. Commission on Legal Empowerment of the Poor (2008). Making the Law Work for Everyone. II Working Group Reports. Commission on Legal Empowerment of the Poor (2008). Making the Law Work for Everyone. I. Cooter, R., S. Marks, et al. (1982). "Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior " The Journal of Legal Studies 11(2): 225-251 Costantino, C. A. and C. Sickles Merchant (1996). Designing conflict management systems. San Francisco, Jossey-Bass. Coumarelos, C., Z. Wei, et al. (2006). Justice made to measure : NSW legal needs survey in disadvantaged areas, Law and Justice Foundation of New South Wales. Cousins, B., T. Cousins, et al. (2005). "Will formalising property rights reduce poverty in South Africa’s ‘second economy’ ?Questioning the mythologies of Hernando de Soto." Plaas Policy Brief 18. Couyoumdjian, J. P. (2008). "An Expert at Work: Revisiting Jeremy Bentham's Proposals on Codification." Kyklos 61(4): 503-519. Cowan, R. and D. Foray (1997). "The economics of codification and the diffusion of knowledge." Industrial and Corporate Change 6(3): 595-622. Curran, B. A. (1977). The Legal Needs of the Public: The Final Report of A National Survey. Chicago, American Bar Foundation. Currie, A. (2005). "A National Survey of The Civil Justice Problems of Low And Moderate Income Canadians: Incidence and Patterns." Retrieved 04/12/2007, 2007, from http://cfcj- fcjc.org/docs/2006/currie-en.pdf. Currie, J. and W. B. MacLeod (2008). "First Do No Harm? Tort Reform and Birth Outcomes*." Quarterly Journal of Economics 123(2): 795-830. Dam, K. w. (2006). The Law-Growth Nexus: The Rule of Law and Economic Development. Washington D.C., Brookings Institution Press. Davies, L. (2004). "Building a civic culture post-conflict." London Review of Education 2(3): 229-244. Davis, K. E. and M. J. Trebilcock (2008). "The Relationship Between Law and Development: Optimists versus Skeptics." American Journal of Comparative Law, Vol. 56, No. 4, 2008. Davis, K. E. and M. J. Trebilcock (2008). "The Relationship Between Law and Development: Optimists versus Skeptics." American Journal of Comparitive Law 56. Dawson, R. (2005). Developing knowledge-based client relationships: leadership in professional services, Butterworth-Heinemann. De Soto, H. (2000). The Mystery of Captal; Why Capitalism Triumphs in the West and Fails Everywhere Else. New York. Deininger, K. W. (2003). Land Policies for Growth and Poverty Reduction, A World Bank Publication. Deutsch, M., P. T. Coleman, et al. (2006). The Handbook of Conflict Resolution: Theory and Practice. San Francisco. ���� � Dhillon, A., J. Rigolini, et al. (2006). Development and the interaction of enforcement institutions. World Bank Policy Research Working Paper Dignan, T. (2004). Legal need in Northern Ireland: Literature Review, Northern Ireland Legal Services Commission. Djankov, S., R. La Porta, et al. (2003). "Courts." Quarterly Journal of Economics(May). Durand-Lasserve, A. and H. Selod (2007). The formalisation of urban land tenure in developing countries. The World Bank Urban Research Symposium Washington DC. Eisenberg, T. and G. P. Miller (2006). The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly-Held Companies' Contracts, SSRN. Fabri, M. and P. M. Langbroek (2000). The Challenge of Change for Judicial Systems: Developing a Public Administration Perspective, IOS Press. Fafchamps, M. (2004). Market institutions in Sub-Saharan Africa: theory and evidence, MIT Press. Fafchamps, M. and S. Lund (2003). "Risk-sharing networks in rural Philippines." Journal of Development Economics 71: 261-287. Fenske, J. E. (2009). Land Tenure and Investment Incentives: Evidence from West Africa, SSRN. Field, E. (2005). "Property Rights and Investment in Urban Slums." Journal of the European Economic Association 3(2-3): 279-290. Field, E. (2007). "Entitled to Work: Urban Property Rights and Labor Supply in Peru*." Quarterly Journal of Economics 122(4): 1561-1602. Fisher, R., W. Ury, et al. (1991). Getting to yes: negotiating agreement without giving in. New York, N.Y., Penguin Books. Fitzpatrick, D. (2005). "'Best Practice' Options for the Legal Recognition of Customary Tenure." Development and Change 36(3): 449-475. Fon, V. and F. Parisi (2006). "Judicial precedents in civil law systems: A dynamic analysis." International Review of Law and Economics 26(4): 519-535. Fon, V. and F. Parisi (2007). "On the optimal specificity of legal rules." Journal of Institutional Economics 3(02): 147-164. Galanter, M. (1974). "Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change." Law and Society Review 9(1): 165-230. Galanter, M. (2004). "The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts." Journal of Empirical Legal Studies 1(3): 459-570. Galiani, S. and E. Schargrodsky (2009). Property rights for the poor: Effects of land titling. Ronald Coase Institute Working Paper Series. Genn, D. H. and S. Beinart (1999). Paths to Justice. What people do and think about going to law? Oxford, Hart Publishing. Genn, D. H. and A. Paterson (2001). Paths to Justice Scotland. What People in Scotland Do and Think About Going to Law. Oxford, Hart Publishing. Genn, H. (2008). Hamlyn Lectures George, J. P. (2006). "Access to justice, costs and legal aid." American Journal of Comparative Law(Fall 2006). Ghei, N. and F. Parisi (2004). "Adverse Selection and Moral Hazard in Forum Shopping: Conflicts Law as Spontaneous Order." Cardozo Law Review 25(4). Goldberg, S. B. and M. L. Shaw (2007). "The Secrets of Successful (and Unsuccessful) Mediators Continued: Studies Two and Three." Negotiation Journal 23(4): 393-418. Goldstein, M. and C. Udry (2008). "The Profits of Power: Land Rights and Agricultural Investment in Ghana." Journal of Political Economy 116(6): 981-1022. Golub, S. (2003). Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative, Carnegie Endowment for International Peace. Gramatikov, M. (2008). A Framework for Measuring the Costs of Paths to Justice, SSRN. Gramatikov, M. (2008). Multiple Justiciable Events in Bulgaria. Reaching Further: New Approaches to the Delivery of Legal Services. L. S. R. Centre. London: 22. Gramatikov, M., M. Barendrecht, et al. (2008). Measuring the Costs and Quality of Paths to Justice: Contours of a Methodology. Reaching Further: New Approaches to the Delivery of Legal Services, London, Legal Services Research Center. Greif, A. (2006). Institutions and the path to the modern economy: Lessons from medieval trade, Cambridge University Press. ���� � Hacker, D. (2008). "A legal field in action: the case of divorce arrangements in Israel." International Journal of Law in Context 4(01): 1-33. Hadfield, G. (2008). "Legal Barriers to Innovation." Regulation 31(3): 14-21. Hadfield, G. and E. Talley (2006). "On Public versus Private Provision of Corporate Law." JOURNAL OF LAW ECONOMICS AND ORGANIZATION 22(2): 414. Hadfield, G. K. (2000). "The Price of Law: How the Market for Lawyers Distorts the Justice System." Michigan Law Review 98(4): 953-1006. Hadfield, G. K. (2008). "The levers of legal design: Institutional determinants of the quality of law." Journal of Comparative Economics: 43-73. Haggard, S., A. MacIntyre, et al. (2008). "Rule of law and economic development." Annual Review of Political Science 11: 205-34. Hammergren, L. A. (2007). Envisioning Reform: Improving Judicial Performance in Latin America, Pennsylvania State University Press. Henderson, K., A. Shah, et al. (2004). "Regional Best Practices: Enforcement of Judgments: Lessons from Latin America." IFES, Rule of Law Paper Series, WashingtonDC. Hesselink, M. W. (2006). The politics of a European civil code, Kluwer Law International. Hirshleifer, J. (2000). "The Macrotechnology of Conflict." Journal Of Conflict Resolution 44(6): 773-792. Hirshleifer, J. (2001). The Dark Side of the Force: Economic Foundations of Conflict Theory. Cambridge, Cambridge University Press. Hollander-Blumoff, R. and T. R. Tyler (2008). "Procedural Justice in Negotiation: Procedural Fairness, Outcome Acceptance, and Integrative Potential." Law & Social Inquiry 33(2): 473-500. Husted, B. W. and R. Folger (2004). "Fairness and Transaction Costs: The Contribution of Organizational Justice Theory to an Integrative Model of Economic Organization." ORGANIZATION SCIENCE 15(6): 719-729. Islam, R. (2003). Institutional Reform and the Judiciary: Which Way Forward? World Bank Policy Research Working Paper Jappelli, T., M. Pagano, et al. (2005). "Courts and Banks: Effects of Judicial Enforcement on Credit Markets." Journal of Money, Credit, and Banking 37(2): 223-244. Jensen, E. G. (2002). The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers’ Responses. Beyond Common Knowledge: Empirical Approaches to the Rule of Law. . E. G. Jensen and T. C. Heller, Stanford University Press. Jia, W. (2002). Chinese Mediation and Its Cultural Foundation. Chinese Conflict Management and Resolution. G.-M. Chen and R. Ma. Westport, Ablex Publishing. Kaplow, L. (1992). "Rules versus standards: an economic analysis." Duke Law Journal: 557-629. Katsh, E. E., M. E. Katsh, et al. (2001). Online Dispute Resolution: Resolving Conflicts in Cyberspace. New York, John Wiley & Sons, Inc. . Kaufmann, D. (2003). Rethinking Governance: Empirical Lessons Challenge Orthodoxy, SSRN. Kennett, W. A. (2000). Enforcement of judgments in Europe, Oxford University Press. Kerber, W. and S. Grundmann (2006). "An optional European contract law code: Advantages and disadvantages." European Journal of Law and Economics 21(3): 215-236. Klerman, D. (2007). "Jurisdictional competition and the evolution of the common law." University of Chicago Law Review 74: 1179. Knight, J. (1992). Institutions and Social Conflict, Cambridge University Press. Korobkin, R. B. (1998). "The status quo bias and contract default rules." Cornell Law Review 83. Korobkin, R. B. and J. W. Doherty (2007). Who Wins in Settlement Negotiations?, SSRN. Lande, J. (2005). "The Promise and Perils of Collaborative Law." Dispute Resolution Magazine 12. Lande, J. (2008). "Developing Better Lawyers and Lawyering Practices: Introduction to the Symposium on Innovative Models of Lawyering." Journal of Dispute Resolution(1). Landes, W. M. and R. A. Posner (1979). "Adjudication as a private good." Journal of Legal Studies 8: 235. Lanjouw, J. O. and P. I. Levy (2002). "Untitled: a study of formal and informal property rights in urban Ecuador." Economic Journal: 986-1019. Lewicki, R. J., D. M. Saunders, et al. (2006). Negotiation Boston, McGraw Hill/Irwin. Lind, E. A. and T. R. Tyler (1988). The Social Psychology of Procedural Justice. New York, Plenum Pub Corp. López de Silanes, F. (2002). "The politics of legal reform." Economía: 91-136. ���� � MacKenzie, D. L. (2006). What Works in Corrections: Reducing the Recidivism of Offenders and Delinquents, Cambridge, UK: Cambridge University Press. MacLeod, W. B. (2007). "Reputations, Relationships, and Contract Enforcement." Journal of Economic Literature 45(3): 595-628. Maru, V. (2006). "Between law and society: paralegals and the provision of justice services in Sierra Leone and worldwide." Yale J. Int'l L. 31: 427. Masser, A. L. (2009). Measurement Methodologies for Legal Empowerment of the Poor. UNDP Bureau of Development Policy. Menkel-Meadow, C. (1996). "The Trouble with the Adversarial System in a Postmodern, Multicultural World." Wm. & Mary L. Rev. 38: 5. Messick, R. (1999). Reducing Court Delays: Five lessons from the United States. PREM notes, The World Bank. Michelson, E. (2007). "Climbing the Dispute Pagoda: Grievances and Appeals to the Official Justice System in Rural China." American Sociological Review 72: 459-485. Michelson, E. (2008). "Justice from Above or Justice from Below? Popular Strategies for Resolving Grievances in Rural China." China Quarterly 193: 43-64. Miller, G. P. (2008) "Preliminary Judgments." Volume, DOI: Mnookin, R. H. (2003). "Strategic Barriers to Dispute Resolution: A Comparison of Bilateral and Multilateral Negotiations." Journal of Institutional and Theoretical Economics JITE 159: 199-220. Mnookin, R. H. and L. Kornhauser (1978). "Bargaining in the Shadow of the Law: The Case of Divorce." Yale Law Journal 88: 950. Mnookin, R. H., S. R. Peppet, et al. (2000). Beyond Winning, Negotiating Deals To Create Value In Deals And Disputes. Cambridge Mass., The Belknap Press of Harvard University Press. Mnookin, R. H., L. Susskind, et al. (1999). Negotiating on Behalf of Others, Sage Publications. Moffitt, M. L., R. C. Bordone, et al. (2005). The Handbook of Dispute Resolution, Jossey-Bass. Moore, C., W. (2003). The mediation process–Practical strategies for resolving conflict, . San Francisco, Jossey-Bass. Muthoo, A. (1999). Bargaining Theory with Applications. Cambridge U.K., Cambridge University Press. Muthoo, A. (2000). "A Non-Technical Introduction to Bargaining Theory." World Economics 1(2): 145-166. Nisenbaum, S. (2009). Negotiation and the Shadow of Law. Handbook on Building Cultures of Peace. J. De Rivera: 245-257. North, D. C., J. J. Wallis, et al. (2009). Violence and Social Orders; A Conceptual Framework for Interpreting Recorded Human History. Cambridge, Cambridge University Press. O'Hara, E. A. and L. E. Ribstein (2000). "From politics to efficiency in choice of law." The University of Chicago Law Review: 1151-1232. O Shea, P. and C. Rickett (2006). "In Defence of Consumer Law: The Resolution of Consumer Disputes." Sydney Law Review 28: 139. Oetzel, J. G. and S. Ting-Toomey (2006). The SAGE handbook of conflict communication. Thousand Oaks, SAGE. Otto, J. M. (2009). "Rule of Law Promotion, Land Tenure and Poverty Alleviation: Questioning the Assumptions of Hernando de Soto." Hague Journal on the Rule of Law 1(01): 173-194. Ouchi, W. G. (1980). "Markets, Bureaucracies, and Clans." Administrative Science Quarterly: 129-141. Parisi, F. (2000). 9500 Spontaneous Emergence of Law: Customary Law. Encyclopedia of Law and Economics. B. Bouckaert and G. De Geest. Cheltenham, Edward Elgar. V The Economics of Crime and Litigation. Parker, C. (1999). Just lawyers, Oxford University Press. Payne, G., A. Durand-Lasserve, et al. (2007). Social and economic impacts of land titling programmes in urban and peri-urban areas: A review of the literature. The Worldbank Urban Research Symposium, Washington DC. Pearce, R. G. (2004). "Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help." Fordham Law Review 73. Penal Reform International and Bloom Legal Clinic of the Northwestern School of Law (2007). Access to Justice in Africa and Beyond: Making the Rule of Law a Reality, Ntl Inst for Trial Advocacy. Peysner, J., M. Seneviratne, et al. (2005). The management of civil cases: the courts and post-Woolf landscape, Department for Constitutional Affairs. Pillutla, M. M. and J. K. Murnighan (2003). "Fairness in Bargaining." Social Justice Research,: 22. ���� � Polinsky, A. M. and S. Shavell (2000). "The Economic Theory of Public Enforcement of Law." Journal of Economic Literature 38(1): 45-76. Ponzetto, G. A. M. and P. A. Fernandez (2008). "Case Law versus Statute Law: An Evolutionary Comparison." The Journal of Legal Studies 37(2): 379-430. Posner, E. A. (2003). "Four Economic Perspectives on American Labor Law and the Problem of Social Conflict." Journal of Institutional and Theoretical Economics JITE 159: 101-116. Posner, R. A. (1993). "What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)." Supreme Court Economic Review: 1-41. Posner, R. A. and E. B. Rasmusen (1999). "Creating and Enforcing Norms, with Special Reference to Sanctions." International Review of Law and Economics 19: 14. Rakodi, C. and C. Leduka (2004). Informal Land Delivery Processes and Access to Land for the Poor: A Comparative Study of Six African Cities. Policy Briefs, International Development Department, University of Birmingham. Ramírez, F., D. Suárez, et al. (2007). The Worldwide Rise of Human Rights Education. School Knowledge in Comparative and Historical Perspective. A. Benavot, C. Braslavsky and N. Truong: 35-52. Rao, P. K. (2003). The Economics of Transaction Costs; Theory, Methods, and Applications. New York, Palgrave MacMillan. Ray, B. (2009). Extending the Shadow of the Law: Using Hybrid Mechanisms to Develop Constitutional Norms in Socioeconomic Rights Cases: 2. Relis, T. (2002). "Civil Litigation from Litigants' Perspectives: What We Know and What We Don't Know About the Litigation Experience of Individual Litigants." Studies in Law, Politics and Society 25: 151-212. Resnik, J. (1982). "Managerial judges." Harvard Law Review 96: 374. Rhode, D. L. (2004). Access to Justice. New York, Oxford University Press. Ringer, T. (2007). "Development, Reform, and the Rule of Law: Some Prescriptions for a Common Understanding of the 'Rule of Law' and its Place in Development Theory and Practice." Yale Human Rights and Development Law Journal 10(1). Ross, L. (1995). Reactive Devaluation in Negotiation and Conflict Resolution. New York, W.W. Norton. . Sabates-Wheeler, R., S. Devereux, et al. (2009). "Taking the Long View: What Does a Child Focus Add to Social Protection?" IDS Bulletin 40(1): 109-119. Sandefur, R. L. (2006). Lawyer, Nonlawyer and Pro Se Representation and Trial and Hearing Outcomes, SSRN. Sappington, D. E. M. (2005). "Regulating service quality: a survey." Journal of Regulatory Economics 27(2): 123-154. Schauer, F. (2008). "Why precedent in law (and elsewhere) is not totally (or even substantially) about analogy." Perspectives on Psychological Science 3(6): 454-460. Setel, P. W., S. B. Macfarlane, et al. (2007). "A scandal of invisibility: making everyone count by counting everyone." The Lancet 370(9598): 1569-1577. Shavell, S. (2004). Foundations of Economic Analysis of Law Cambridge, Mass., Harvard University Press. Shell, R. (2006). Bargaining for Advantage:Negotiation Strategies for Rational People. London, Penguin Books. Sherwin, E. (2006). "Judges as Rulemakers." The University of Chicago Law Review: 919-931. Smits, J. M. (2008). "The Draft-Common Frame of Reference (CFR) for a European Private Law: Fit for Purpose?" Maastricht Journal of European and Comparative Law 15: 145-148. Stephen, F. and J. Love (1999). Regulation of law firms. Encyclopedia of Law and Economics. G. De Geest and B. Bouckaert. London, Edgar Elgar: 987-1017. Sternlight, J. R. (2005). "Creeping mandatory arbitration: Is it just?" Stanford Law Review 57: 1631. Sternlight, J. R. (2007). "In Defense of Mandatory Arbitration (If Imposed on the Company)." Nevada Law Journal 8. Stiglitz, J. (2000). Handbook of Economics of the Public Sector. Stiglitz, J. E. (1999). "Knowledge as a global public good." Global public goods 1(9): 308-326. Sunstein, C. R. (1999). One case at a time: Judicial minimalism on the Supreme Court, Harvard University Press. Sunstein, C. R. (2007). "Incompletely Theorized Agreements in Constitutional Law." Social Research: An International Quarterly of Social Sciences 74(1): 1-24. �� � � Sunstein, C. R. (2008). Beyond Judicial Minimalism, SSRN. Szreter, S. (2007). "The right of registration: development, identity registration, and social security—a historical perspective." World Development 35(1): 67-86. Tamanaha, B. Z. (2008). A Concise Guide to the Rule of Law. Florence Workshop on The Rule of Law. N. Walker and G. Palombella, Hart Publishing Company. Tamanaha, B. Z. (2009). The Primacy of Society and the Failure of Law and Development, SSRN. Tamanaha, B. Z. (2009). "The Primacy of Society and the Failure of Law and Development." SSRN eLibrary. Trubek, D. M., A. Sarat, et al. (1983). "The Costs of Ordinary Litigation." UCLA Law Review 31: 72-123. Tullock, G. (1980). Trials on Trial: The Pure Theory of Legal Procedure. New York, Columbia University Press. Tyler, T. R. (1997). Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform. Civil Procedure Reform in Comparative Context, Florence, Italy, New York University. Tyler, T. R. (2006). "Legitimacy and legitimation." Annual Review of Psychology 57: 375-400. Tyler, T. R. (2006). Why people obey the law. Princeton Princeton University Press. Tyler, T. R. (2007). Psychology and the Design of Legal Institutions. Nijmegen, Wolf Legal Publishers. Ury, W. L., J. M. Brett, et al. (1988). Getting disputes resolved: Designing systems to cut the costs of conflict. San Francisco, Jossey Bass. Van den Berg, M. and P. Kamminga (2006). "Optimising Contracting for Alliances in Infrastructure Projects." International Construction Law Review 23(1). Van Rooij, B. (2007). Bringing Justice to the Poor, Bottom-up Legal Development Cooperation Annual meeting of the The Law and Society Association Berlin, Germany. Van Velthoven, B. J. and M. Ter Voert (2004). Geschilbeslechtingsdelta 2003. Den Haag, WODC. Van Zeeland, C., P. Kamminga, et al., Eds. (2007). A Code of Conduct for Negotiating Personal Injury Claims: Structuring the Shadow of Tort Law. Tilburg University Legal Studies Working Paper. Varian, H. R. (1998). Markets for information goods. Velikonja, U. (2009). "Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice." Albany Law Review 72. Verdonschot, J. H. (2009). Delivering Objective Criteria: Sources of Law and the Relative Value of Neutral Information for Dispute Resolution, SSRN. Walker, D. and K. Hampson (2003). Enterprise networks, partnering and alliancing. Procurement Strategies: A Relationship-Based Approach. D. Walker and K. Hampson, Blackwell Science Ltd. Wall, J. A., Jr., J. B. Stark, et al. (2001). "Mediation: A Current Review and Theory Development." Journal Of Conflict Resolution 45(3): 370-391. Wall Jr, J. A. and R. R. Callister (1995). "Conflict and Its Management." Journal of Management 21(3): 515. Wall Jr, J. A. and S. Chan-Serafin (2009). "Processes in civil case mediations." Conflict Resolution Quarterly 26(3): 261-291. Walton, R. and R. McKersie (1965). A Behavioral Theory of Labor Negotiations. Beverly Hills, Sage Publications. Ware, S. J. (2004). "Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights." Law and Contemporary Problems 67. Welsh, N. W. (2004). "Perceptions of Fairness in Negotiation Symposium: the Emerging Interdisciplinary Canon of Negotiation Fairness " Marquette Law Review 87. Williamson, O. E. (1981). "The Economics of Organization: The Transaction Cost Approach." American Journal of Sociology 87(3): 548. Williamson, O. E. (1999). "Public and private bureaucracies: a transaction cost economics perspectives." J Law Econ Organ 15(1): 306-342. Williamson, O. E. (2005). "The Economics of Governance." American Economic Review 95(2): 1-18. Wissler, R. L. (2004). "The effectiveness of court-connected dispute resolution in civil cases." Conflict Resolution Quarterly 22(1-2): 55-88. Woolf, H. (1996). Access to Justice Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London, Hmso Books. �� � � Wormith, J. S., R. Althouse, et al. (2007). "The Rehabilitation and Reintegration of Offenders: The Current Landscape and Some Future Directions for Correctional Psychology." Criminal Justice and Behavior 34(7): 879-892. Yeazell, S. (2008). Transparency for Civil Settlements: NASDAQ for Lawsuits?, SSRN. Zuckerman, A. (1999). Assessment of Cost and Delay - a Multi-National - Perspective. Procedural Law in the Threshold of a New Millenium, Wien, University of Wien. Zuckerman, A. A. S., S. Chiarloni, et al. (1999). Civil justice in crisis: comparative perspectives of civil procedure, Oxford University Press. 
work_65d5ndww4jb3pg4yowyxfcjtku	----	Pipeline Spills and Indigenous Energy Justice sustainability Review Pipeline Spills and Indigenous Energy Justice Ranjan Datta * and Margot A. Hurlbert The Johnson Shoyama Graduate School of Public Policy (JSGS), University of Regina, Regina, SK S4P 4V5, Canada; Margot.Hurlbert@uregina.ca * Correspondence: Ranjan.datta@usask.ca Received: 7 November 2019; Accepted: 16 December 2019; Published: 19 December 2019 ����������������� Abstract: The Canadian provinces of Alberta and Saskatchewan transport their energy resources by pipeline to the eastern and western seaboards, and south into the United States. The used pipeline infrastructure reshapes the landscape and affects sustainability of the environment, traditional Indigenous livelihoods, and drinking water, particularly when spills and leaks occur. This scoping review is focused on Indigenous sustainability issues in relation to surrounding pipeline spills/leaks, impacts on drinking water and Indigenous communities in Western Canada. We found that Indigenous communities are particularly vulnerable to pipeline leaks, and have limited capacity to mitigate them. Strategic decisions need to be made about the management of pipeline leaks. For building Indigenous energy justice, the findings of this paper suggest that Indigenous-led databases, programs to monitor and assess impacts, report leaks, and funding of community-based participatory action research are required. Keywords: energy; Indigenous drinking water; Indigenous; pipeline spills; scoping review; sustainability 1. Introduction The Western Canadian provinces of Alberta and Saskatchewan significantly rely on oil pipelines’ revenue, dependent on the transport of their energy resources by pipeline to the eastern and western seaboards, and south into the United States. Pipeline infrastructure reshapes the landscape and impacts sustainability of the environment, traditional Indigenous livelihoods, and drinking water, when spills and leaks occur. The purpose of this paper is to provide Indigenous communities, particularly those communities of northern Alberta and Saskatchewan, with new tools that can help them make strategic choices about pipeline leak management to enhance their energy justice to pipeline leaks. Indigenous knowledge has important lineages in energy sustainability, as it includes culturally distinctive ways of knowing specifics to societies, with long histories of interaction with their natural surroundings. For Indigenous people, the term sustainability is part of their everyday life, which connects spiritually and relationally; acting sustainably means giving, not taking the Earth’s natural resources and is defined by an ethic of making decisions in respect of Earth’s resources that will not hamper the access to these resources for the next seven generations [1]. Indigenous knowledge includes traditional ways of knowing and doing in sustainably managing very complex ecosystems [2]. In the dramatic transition of energy and water management regimes over the last few decades, Indigenous knowledge has received little recognition, and Indigenous histories and perspectives are rarely valued as significant data to the sustainable contemporary management of water and energy resources [3]. For understanding the concept of sustainability in energy and drinking water access for Indigenous people, this paper reports on a scoping review of critical issues in sustainability, particularly energy pipelines and their impact on Indigenous peoples’ drinking water access. For instance, how is the concept of Indigenous sustainability and Indigenous energy justice affected through colonial Sustainability 2020, 12, 47; doi:10.3390/su12010047 www.mdpi.com/journal/sustainability http://www.mdpi.com/journal/sustainability http://www.mdpi.com https://orcid.org/0000-0001-7511-6583 https://orcid.org/0000-0003-3825-8413 http://www.mdpi.com/2071-1050/12/1/47?type=check_update&version=1 http://dx.doi.org/10.3390/su12010047 http://www.mdpi.com/journal/sustainability Sustainability 2020, 12, 47 2 of 9 energy management policy and practices? This paper reports on a scoping review of energy issues surrounding pipeline spills/leaks, and impacts on drinking water and Indigenous communities in Western Canada. This paper first suggests that the researchers need to explore past leak impacts on Indigenous communities’ water, agriculture, and challenges in current risk management processes and regulations; and secondly, provide recommendations to build sustainability in Indigenous energy practice from and within Indigenous people and their perspectives. 2. Scoping Methodological Framework of Study Our scoping review in this paper was used according to our keywords listed in Table 1. Drawing from a scoping method logical framework, this paper focused on Indigenous sustainability through Indigenous energy and water [4,5]. A scoping method logical framework is “a form of knowledge synthesis that addresses an exploratory research question aimed at mapping key concepts, types of evidence, and gaps in research related to a defined area or field by systematically searching, selecting, and synthesizing existing knowledge” [6]. In this paper, we used the scoping method logical framework with a comprehensive assessment of the literature. The present scoping review was guided by keywords listed in Table 1. The goal was to evaluate the extent to which Indigenous sustainability issues have been considered in these studies, and to discuss their conclusion. Thematic key words were reviewed from the online databases prior to search. The authors searched for intersections of the issues of pipeline spills/leaks and Indigenous conceptualizations of sustainability. Search databases were used with a wide range of disciplines, which included Web of Science (multidisciplinary, 2008–present) and Google Scholar. Thematic keywords used for searching are included in Table 1. Table 1. Keywords used for literature search. #1 Pipeline Spills/Leaks Pipeline Spills, OR Leaks OR Pipeline Breaks OR Pipeline #2 Indigenous Energy Indigenous Meanings of Energy OR Energy Management OR Indigenous Energy #3 Drinking water Crisis Drinking water quality OR water crisis OR drinkable water protection OR safe water OR water OR sustainable water supply OR fresh water OR water OR water supply #4 Indigenous Communities Indigenous people OR Indigenous OR Unban Indigenous OR Reserve Indigenous OR Aboriginal OR Native(s) OR Indigenous people OR First Nations OR Métis OR Inuit Or Inuk #5 Environmental Impacts Environmental Impacts OR Environmental Harms OR Environmental Injustice #6 Health Impacts Spiritual health wellness OR well-being OR mental health OR social health #7 Challenges Challenges in solution OR Barriers #8 Canada Canada OR Indigenous areas in North America #1 #5 AND #1 AND #4 3. Overview Findings from Selected Studies We found a total of 220 articles from our overall search with 46 from the bibliographic searching process (i.e., according to the key words, authors’ names, the titles of the works), and 174 from grey literature. 35 articles matched with our thematic keywords, title, and abstract (i.e., Table 1: Keywords #1, 2, 3, and 4); however, 21 studies did not meet the second-level required criteria, leaving a total of 19 articles matching for the final scoping review. Focusing on our search findings, we divided our result sections into five subsections including: first, thematic analysis and study findings; second, lack of Indigenous engagement in energy management and pipelines; third, impact of pipelines on Indigenous drinking water quality; fourth, pipeline spills/leaks and impacts; and finally, recommendations. Sustainability 2020, 12, 47 3 of 9 4. Thematic Analysis from Study Findings The findings of reviewed articles were grouped under the following key themes: (a) Challenges in Indigenous Engagement concerning Energy and Pipelines; (b) Impact of Pipelines on Indigenous Drinking Water Quality; (c) Pipeline Spills/Leaks and Impacts on Indigenous people. Our scoping review focused on a systematic approach to find Indigenous sustainability-related information on Indigenous environmental issues associated with pipelines spills in Indigenous communities in Canada and North America. Our review found 19 closely relevant articles from the initial pool of 220 articles. The focusing points in this review were the literature on pipeline spills, impacts of drinking water, and agriculture, and health in Indigenous communities in Canada. None of the articles in the sample used a decolonizing approach on pipeline leaks and energy management, or an approach that would privilege Indigenous knowledge and perspectives surrounding sustainability. During our scoping review, we also focused on researchers who emphasised the Indigenous communities’ knowledge and values, the Calls for Action from the Truth and Reconciliation Commission, and Indigenous governments. The thematic analysis and study findings are summarized below. 4.1. Lack of Indigenous Engagement in Energy Management and Pipelines Most of the government and companies’ reports and assessments, as well as other reports by non-profit organizations, discussed governmental regulation and policy guidelines in Indigenous sustainability issues. Only three articles from the 19 articles critically discussed that there was insufficient focus on pipeline spills in Indigenous communities and impacts on Indigenous communities [7,8]. A recent report on Saskatchewan Indigenous communities shows that pipeline spills and their impact on Indigenous drinking water and agriculture are high in Indigenous communities compared to the national average, and more than 50% of Indigenous communities in reserve areas in Canada are at “high risk”. Two studies by Auston, and Wilke and Freeman [9,10] discuss that pipeline spills have more severe impact on rural Indigenous communities’ drinking water, agriculture, and traditional cultural practice with land than the other non-Indigenous communities do in urban areas. Another five articles discussed that governments’ lack of interest in Indigenous engagement as being a significant challenge for sustainable energy management [7–11]. Two studies [9,10] argue that because of the lack of Indigenous communities’ involvement in energy management, many Indigenous communities have suffered a number of negative impacts on their drinking water, health and surrounding environment. For instance, the Treaty 6 territory situated in Western Canada is one of the vulnerable parts of Canada including its Indigenous communities. According to the Assembly of First Nations, there are 81 long-term drinking water advisories (DWA) affecting more than 50 Indigenous communities across the country. As of August 6, 2018, there were 42 short-term DWAs in place, and there are more than 15,000 Indigenous people under Drinking Water Advisories in Saskatchewan [12]. Recent federal government activities have also become a major challenge for reducing pipeline leak impacts on many Indigenous communities [13]. A recent report of Canadian government initiatives for Indigenous energy management concludes that as of May 30, 2018, the current government in Canada confirmed it paid $4.5 billion to buy the Kinder Morgan pipeline; but there are many Indigenous communities currently living with high drinking water advisories [13]. There were 124 DWAs at the beginning of May 2018, and now the number has spiked to 174 advisories in the last couple of weeks. While in December 2017, the Parliamentary Budget Officer estimated the cost of ending boil water advisories by 2020 to be $3.2 billion, the Kinder Morgan pipeline crosses 1355 waterways, putting communities’ drinking water at risk. For instance, the Coldwater Indian Band, along with several other Indigenous nations, launched a legal challenge because the pipeline cuts right through the nation’s drinking water source. This study also claims that instead of allocating adequate funding to ensure clean water for First Nations and upholding the human right to water and sanitation, the Trudeau Sustainability 2020, 12, 47 4 of 9 government is committing $4.5 billion to bail out Kinder Morgan and ram through a pipeline project that puts the drinking water of Indigenous nations and municipalities at risk. This study also argues that the $4.5 billion Prime Minister Trudeau committed to bailing out Kinder Morgan could increase Indigenous communities’ capabilities to end boil water advisories in First Nations. No single article discussed Indigenous knowledge or perspectives in energy management and Indigenous decision-making opportunities in pipeline leaks management. However, there are two articles that show Indigenous engagement in energy and pipeline leaks management have been significantly missing historically [7,14]. Only two articles [3,15] strongly suggested including Indigenous communities and their traditional practices in sustainable energy management. 4.2. Impact of Pipelines on Indigenous Drinking Water Quality Seven articles discuss that pipeline leaks, DWA, and poor water quality are prominent in Indigenous communities. This is important for sustainability, given the impacts of pipeline spills/leaks on Indigenous people described below. These seven articles were coded regardless of the reason for source water deterioration, and included advisories issued due to the oil spill on the North Saskatchewan River [14–24]. If a groundwater source was believed to be under the direct impact of surface water, but there was insufficient treatment to deal with the direct influence of surface water, poor source water was coded and the article included. Silt being drawn into the treatment system by wells and changing the source water to a non-regulated water source was coded as poor source water. Pipeline development and its impacts on Indigenous communities is also a concerning factor for other parts of Canada. According to a recent report by Health Canada and British Columbia’s First Nations Health Authority, up to one-in-four people may not have clean drinking water on First Nations reserves [23]. This report argues that DWAs in Indigenous communities should not be a way of life in a country with an abundant water source. However, a lack of infrastructure, political will, and public solidarity causes such problems. This report also shows that on top of long-standing DWAs, the Trudeau government has actually approved a series of development projects that threaten important First Nations waterways such as Kinder Morgan’s Trans Mountain Expansion project and Enbridge’s Line 3 tar sands pipelines replacement project. Another three articles reported how pipeline leaks and their contamination of drinking water concerns specific pathogens in pipeline spills/leaks including serious health impacts from water [8,24–27]. Qualitative measures of impacts of pipeline spills/leaks in Indigenous drinking water were assessed in five other articles [19,21–24]. Two articles related to health risks from impacted drinking water [14,28]. In general, two of these suggested that there is a high risk in drinking water in Indigenous communities; however, they also suggested risks in drinking water differed according to province, water source, and other social and physical indicators [28]. 4.3. Pipeline Spills/Leaks and Impacts Six articles (three specifically from qualitative articles, the other three based from mixed methods articles) from 35 articles discussed pipeline spills/leaks [14–20]. For instance, the Wingrove (2012) study shows that there have been at least 10 pipelines leaks since 2011 in Alberta. Wingrove gave an example from the biggest pipeline spill (i.e., Plains Midstream pipeline spill near Little Buffalo) that leaked more than 4.5 million liters in April 2011, and another larger spill in December 2017 (i.e., from a Pengrowth Energy Corp. pipeline near Judy Creek, Alberta) where 1.9 million liters spilled. There were 12 major spills reported from 2008 to 2018 (Table 2), particularly in Saskatchewan and Alberta. Most of these oil spills are connected with either Indigenous surface water or their traditional food source, including Indigenous hunting and gathering. Sustainability 2020, 12, 47 5 of 9 Table 2. Major pipeline spills in between 2008–2017 in Canada, particularly in Saskatchewan and Alberta [14–20]. Major Pipeline Leaks 2008–2017 Amount (by L) July 2016 into the North Saskatchewan River. 250,000 L June 2016 into northwestern Alberta. 380,000 L July 2015 into near Fort McMurray, Alberta. 5 million L March 2015 into Northeast of Peace River, Alberta. 2.7 million L November 2014 into Red Earth Creek in northern Alberta. 60,000 L April 2014 into northwest of Slave Lake, Alberta. 70,000 L July 2013 into Cold Lake Air Weapons Range, Alberta. 1.5 million L May 2013 into Zama City, region of northern Alberta. 15 million L June 2012 into Red Deer River in central Alberta. 461,000 L May 2012 into near the Alberta–Northwest Territories boundary. 3.5 million L April 2011 into northern Alberta aboriginal community of Little Buffalo. 4.5 million L April 2007 into Glenavon, Saskatchewan. 990,000 L Two articles from 19 articles suggest that pipeline spills threaten ecosystems both ways (i.e., during spills and spill cleanup) [22–25]. For instance, the Todd (2017) study shows how spills can threaten the ecosystem in two ways: during spills, dangerous toxins mixed with surface which transferred to agricultural land, water, and wetland that contaminated whole ecosystems including human, animals, birds, and plants; during cleanup, physical cleanup (e.g., cleaning oil from surface) can have direct impacts of normal soil and water quality. Todd showed in how oil spills can damage native habitat and significantly reduce native species and foster invasive species. However, this study also suggests more research for making more concrete decisions on how spill removal from the surface can reduce habitat damage, and to understand the threats to native species and wildlife. Five articles show that pipeline spills not only impact on Indigenous people’s drinking water, but also have negative impacts on non-human species (such as birds and wildlife habitat including their food, water, shelter, and nesting areas) [8,26,27]. For instance, the Austen (2013) study shows that pipeline spills increase various environmental toxins in water, particularly aromatic hydrocarbons, and PAHs. According to Austen’s study, environmental toxins from pipeline spills (polycyclic aromatic hydrocarbons, or PAHs) can dissolve in water quickly and can kill non-human species including fish and other aquatic creatures. A number of studies [8,26–31] show that the non-human species, particularly fish and aquatic creatures, which live in the water for most or all of its lifetime, are more vulnerable to oil spills than other wildlife. The fish and aquatic creatures typically break down quickly and disappear. Other chemicals can have longer impact in the water and can make serious ongoing health effects for aquatic species that may appear after longer times, including after many months and years. Another study [14] suggests that environmental toxins (i.e., oil toxicity and its contaminants, or pollutants, and the oil itself) became less significant in human-centric politics. Pipeline spills have serious health outcomes interrelated with fear and poor drinking water in many Indigenous communities. For instance, an article [9] specifically discussed the weakness of governments and profit-oriented organization-led research by saying that environmental toxins from the pipeline spills have been poorly tracked, including carcinogens, gene mutagens, and endocrine disruptors. This study also suggests: (1) that the environmental toxins from the pipeline spills are directly connected with human cancer-causing compounds; (2) the official reports also found various toxins from spills at dangerous levels in waterways and deep-water; (3) the relationship between pipeline oil leaks and health impacts are highly significant. Further, a recent study by Wilke and Freeman [10] concluded that it is important to understand the relationship between pipeline oil leaks and air quality, as oil Sustainability 2020, 12, 47 6 of 9 spills or leaks can have significant impact on air quality. The air quality has an indirect connection with human chronic respiratory illnesses. Using data from a large electronic medical record representing more than 400,000 in primary care, Wilke and Freeman’s study suggests that 5935 patients are suffering with asthma. This study also claims that the connection between pipeline oil leaks and human health risks are high because of drinking water infections. 5. Discussion and Recommendations Our scoping review suggests there is a significant need for more academic and community-based research with Indigenous communities to understand sustainability issues from and within Indigenous perspectives. Indigenous knowledge needs to be understood through their participation and decision-making in energy management and drinking water pipeline leaks management and in identifying solutions. For understanding sustainability surrounding Indigenous energy and water, this review also suggests for the researcher’s critical focus to be on barriers and challenges in Indigenous communities (i.e., sufficient research funding to the community, Indigenous-led research, protecting drinking water, and their health). Although the number of related studies was very small in this scoping review, the studies reported reflect a wider range of research designs and findings by the Indigenous community. sustainability. For instance, while some research is emerging, there is very limited research on Indigenous communities’ perspectives and Indigenous knowledge on current pipeline development, and drinking water management. For understanding sustainability issues, this study suggests focusing on the redesign of research, and research within and from Indigenous community participants and academic researchers. The lack of cultural understanding among government and NGO researchers is also another significant challenge in Indigenous sustainability research [9–15] as well as improvement in increasing Indigenous communities’ active participation. Studies also recommend greater sample sizes from the community perspectives so that both academics and communities can better understand challenges from multiple perspectives. There is a need for Indigenous worldviews, Indigenous methodology, Indigenous research frameworks, from and within Indigenous community-based participatory research, that also can lead to community-based effective solutions. More research is also needed to understand government and non-governmental initiatives and their impact on Indigenous communities’ involvement in their energy management and sustainability [31–48]. For understanding sustainability issues, it is recommended that the significant gaps in the evidence of drinking water consequences related to pipeline leaks in Canadian Indigenous com-munities be addressed [31–37]. There are no systematic studies that focus on Indigenous rights, including access to drinking water and surrounding the health of women and minors in Indigenous communities. To move forward in better understanding sustainability through potential protection of Indigenous drinking water, their health, and their environment from pipeline spills in Canada, we make the following recommendations for understanding sustainability issues based on the scoping review: Community-Based Participatory Action Research (CBPAR). Studies suggested that Indigenous-led CBPAR can provide a better understanding from and within community perspectives on the oil spills, affecting assessment and protecting their drinking water and environment. Although there are significant needs for bridging among academic researchers, policy makers, community leaders, Indigenous Elders, Knowledge Keepers, government and companies; studies specifically suggested for centering Indigenous perspectives for building sustainability within and from Indigenous communities. Develop an Indigenous-Led Database. Studies argued that Indigenous communities, in most cases, do not have access to government and companies’ research information. Therefore, they do not know the impacts on their water, health, and environment. According to studies, the Indigenous-led database cannot only improve information access, but also can be helpful for government and companies to take meaningful, timely action from and within community people. Indigenous Elders, Knowledge Keepers, and leaders can guide to develop Indigenous-led databases. Sustainability 2020, 12, 47 7 of 9 Indigenous Perspectives. For building sustainability in Indigenous communities, Indigenous perspectives are critical. Studies suggested developing Indigenous perspectives on concepts (i.e., energy, energy management, safe drinking water, and health risk) through Indigenous Elders and Knowledge Keepers’ guidelines. Funding. Funding is one of the critical issues for building sustainability in oil spills management. Most communities suffer for lack of funding during and after oil spills. Therefore, studies strongly suggested federal and provincial governments, research agencies, and companies create a special call for Indigenous CBPAR research, interdisciplinary research, actions-based solutions, and maintain a workforce during and after any oil spills. Ongoing pre-oil spills funding is also needed for educating the community. Develop Indigenous-Led Programs. Indigenous-led programs from and within Indigenous communities are significant for building sustainability for Indigenous communities. These programs are to monitor impacts and assessments, and report the pipeline leaks and drinking water outcomes to implement strategies for finding effective solutions in removing barriers and challenges to safe drinking water, Indigenous health, and their environment. Sustainability in energy justice requires responsible energy development in Indigenous communities. This scoping review paper suggests that when energy is developed in Indigenous communities, there is a need to consider Indigenous peoples’ interests regarding the opportunities and impacts of energy development. Our study found that energy development without Indigenous community engagement has been creating not only serious negative impacts on the environment, but also creating significant barriers for Indigenous everyday practices, including impacts on Indigenous water, agricultural land, traditional hunting and gathering practices, and ceremonies. Therefore, in reviewing recent research on Indigenous communities, this study suggests that following the above recommendations are significant for building energy sustainability in Indigenous land. To achieve this, we strive for relationships that are based on transparency, mutual respect and trust. Author Contributions: Methodology, scoping review; software, google and university library search search, validation, R.D. and M.A.H.; content analysis; R.D. and M.A.H., writing; writing—Nov-Dec, R.D. and M.A.H. All authors have read and agreed to the published version of the manuscript. Funding: This project was funded by Banting Post-Doctoral Fellowship 2018–2020, Canada, grant number RN340033-393630. Conflicts of Interest: The authors declare no conflict of interest. References 1. McGregor, D. The Earth Keepers Solid Waste Management Planning Program: A Collaborative Approach to Utilizing Aboriginal Traditional Knowledge and Western Science in Ontario. Int. J. Can. Stud. 2010, 41, 69. [CrossRef] 2. World Commission on Environment and Development. Our Common Future; Oxford University Press: Oxford, UK, 1987; p. 454. 3. Hurlbert, M.; Rayner, J. Reconciling power, relations, and processes: The role of recognition in the achievement of energy justice for Aboriginal people. Appl. Energy 2018, 228, 1320–1327. [CrossRef] 4. Arksey, H.; O’Malley, L. Scoping studies: Towards a Methodological Framework. Int. J. Soc. Res. Methodol. 2005, 8, 19–32. [CrossRef] 5. Austen, I. In Canada, 2 Provinces Feud Over Pipeline: Will It Bring Jobs or Spills? Available online: https://www.nytimes.com/2018/04/14/world/canada/justin-trudeau-alberta-british-columbia-kinder- morgan-pipeline.html?em_pos=small&emc=edit_cnda_20180421&nl=canada-today&nl_art=1&nlid= 60013975c%3Dedit_cnda_20180421&ref=headline&te=1 (accessed on 23 April 2018). 6. Hayward, J. BC NDP to Argue Trans Mountain Pipeline Expansion not in National Interest. Available online: https://www.theglobeandmail.com/news/british-columbia/bc-ndp-to-argue-trans- mountain-pipeline-expansion-not-in-national-interest/article36446499/ (accessed on 5 January 2019). http://dx.doi.org/10.7202/044163ar http://dx.doi.org/10.1016/j.apenergy.2018.06.054 http://dx.doi.org/10.1080/1364557032000119616 https://www.nytimes.com/2018/04/14/world/canada/justin-trudeau-alberta-british-columbia-kinder-morgan-pipeline.html?em_pos=small&emc=edit_cnda_20180421&nl=canada-today&nl_art=1&nlid=60013975c%3Dedit_cnda_20180421&ref=headline&te=1 https://www.nytimes.com/2018/04/14/world/canada/justin-trudeau-alberta-british-columbia-kinder-morgan-pipeline.html?em_pos=small&emc=edit_cnda_20180421&nl=canada-today&nl_art=1&nlid=60013975c%3Dedit_cnda_20180421&ref=headline&te=1 https://www.nytimes.com/2018/04/14/world/canada/justin-trudeau-alberta-british-columbia-kinder-morgan-pipeline.html?em_pos=small&emc=edit_cnda_20180421&nl=canada-today&nl_art=1&nlid=60013975c%3Dedit_cnda_20180421&ref=headline&te=1 https://www.theglobeandmail.com/news/british-columbia/bc-ndp-to-argue-trans-mountain-pipeline-expansion-not-in-national-interest/article36446499/ https://www.theglobeandmail.com/news/british-columbia/bc-ndp-to-argue-trans-mountain-pipeline-expansion-not-in-national-interest/article36446499/ Sustainability 2020, 12, 47 8 of 9 7. Raso, K.; Neubauer, R.J. Managing Dissent: Energy Pipelines and “New Right” Politics in Canada. Available online: https://cjc-online.ca/index.php/journal/article/view/2777 (accessed on 21 January 2019). 8. Olive, A. Oil development in the grasslands: Saskatchewan’s Bakken formation and species at risk protection. Cogent Environ. Sci. 2018, 4, 1443666. [CrossRef] 9. Austen, I. Oil Sand Industry in Canada Tied to Higher Carcinogen Level. Available online: https://www.nytimes.com/2013/01/13/world/americas/oil-sand-industry-in-canada-tied-to-higher- carcinogen-level.html (accessed on 4 January 2019). 10. Wilke, R.A.; Freeman, J.W. Potential Health Implications Related to Fracking. JAMA 2017, 318, 1645–1646. [CrossRef] [PubMed] 11. McKay, P. Out of the LOOP: The Fatal Flaw of Alberta’s Oil Export Expansion. Available online: https: //theenergymix.com/2018/03/05/exclusive-out-of-the-loop-the-fatal-flaw-of-albertas-oil-export-expansion/ (accessed on 10 January 2019). 12. Nikiforuk, A. The Arctic Is Not A Casino: The Beaufort Sea Project and the Enduring Hazards of Arctic Offshore Drilling, Greenpeace Canada. 2018. Available online: http://www.restco.ca/BSP_Reprints.shtml (accessed on 23 January 2019). 13. Sinha, S. Energy East pipeline. Extr. Ind. Soc. 2016, 3, 517–552. 14. Atlin, C.; Gibson, R. Lasting regional gains from non-renewable resource extraction: The role of sustainability-based cumulative effects assessment and regional planning for mining development in Canada. Extr. Ind. Soc. 2017, 4, 36–52. [CrossRef] 15. Alava, J.J.; Calle, N. Pipelines imperil Canada’s ecosystem. Science 2017, 355, 6321. [CrossRef] [PubMed] 16. Canadian Press. Plains Midstream Reports Second Oil Spill in Alberta. Available online: http: //business.financialpost.com/2012/06/08/pipeline-company-reports-oil-spill-near-red-deer-river (accessed on 11 February 2019). 17. Canadian Press. Enbridge Elk Point Spill Pumps about 230,000 Litres of Heavy Crude in Alberta. Available online: http://www.huffingtonpost.ca/2012/06/19/enbridge-elk-point-spill-_n_1610613.html (accessed on 23 January 2019). 18. Swift, A.; Swift, L.; Casey-Lefkowitz, S.; Terhune, K.; Droitsch, D. Pipeline and Tanker Trouble: The Impact to British Columbia’s Communities, Rivers and Pacific Coastline from Tar Sands Oil Transport; The National Resource Defense Council: New York, NY, USA, 2011. 19. Government of Canada. Drinking Water Advisories: First Nations South of 60. Available online: https: //www.sac-isc.gc.ca/eng/1506514143353/1533317130660 (accessed on 6 August 2019). 20. Canadian Broadcasting Corporation (CBC). 200 K L of Oil from Husky Energy Pipe Leaked into North Saskatchewan River, Company Says. Available online: http://www.cbc.ca/news/canada/saskatoon/ saskatchewan-government-husky-energypipeline-leaks-oil-1.3690178 (accessed on 23 February 2019). 21. Canadian Broadcasting Corporation (CBC). This River Has Taken a Beating: James Smith Cree Nation Has Serious Concerns after Husky Pipeline Spill. Available online: http://www.cbc.ca/news/canada/saskatoon/ james-smith-cree-nation-concerns-husky-oilspill-1.3742966 (accessed on 23 February 2019). 22. Liu, E. Energy East: Where Oil Meets Water; The Council of Canadians: Ottawa, ON, USA, 2014. 23. The Council of Canadian Acting for Social Justice. Safe Water for First Nations. Available online: https: //canadians.org/fn-water (accessed on 23 January 2019). 24. The UBC Report. Oil Spill in Burrard Inlet Could Cost Vancouver up to $1.2 Billion. Available online: https://www.vancouverobserver.com/news/oil-spill-burrard-inlet-could-cost-vancouver- 12-billion-ubc-report (accessed on 23 January 2019). 25. Todd, Z. Fish, Kin and Hope: Tending to Water Violations in amiskwaciwâskahikan and Treaty Six Territory. Afterall J. Art Context Enq. 2017, 43, 102–107. [CrossRef] 26. Booth, A.L.; Skelton, N.W. You spoil everything! Indigenous peoples and the consequences of industrial development in British Columbia. Environ. Dev. Sustain. 2011, 13, 685. [CrossRef] 27. Wingrove, J. Small Oil Leak Discovered in Alberta. Available online: https://www.theglobeandmail.com/ news/national/small-oil-leak-discovered-in-alberta/article4442357/ (accessed on 15 January 2019). 28. Healing, D. Cleanup of Oil Spill in Saskatchewan Cost $107 Million, Husky Energy Says. Available online: http://www.canadianunderwriter.ca/catastrophes/cleanup-oil-spill-saskatchewan-cost-107- millionhusky-energy-says-1004109375/ (accessed on 23 January 2019). 29. Haarstad, H.; Wanvik, T.I. Carbonscapes and beyond: Conceptualizing the instability of oil landscapes. Progress. Hum. Geogr. 2016, 41, 432–450. [CrossRef] https://cjc-online.ca/index.php/journal/article/view/2777 http://dx.doi.org/10.1080/23311843.2018.1443666 https://www.nytimes.com/2013/01/13/world/americas/oil-sand-industry-in-canada-tied-to-higher-carcinogen-level.html https://www.nytimes.com/2013/01/13/world/americas/oil-sand-industry-in-canada-tied-to-higher-carcinogen-level.html http://dx.doi.org/10.1001/jama.2017.14239 http://www.ncbi.nlm.nih.gov/pubmed/29049815 https://theenergymix.com/2018/03/05/exclusive-out-of-the-loop-the-fatal-flaw-of-albertas-oil-export-expansion/ https://theenergymix.com/2018/03/05/exclusive-out-of-the-loop-the-fatal-flaw-of-albertas-oil-export-expansion/ http://www.restco.ca/BSP_Reprints.shtml http://dx.doi.org/10.1016/j.exis.2017.01.005 http://dx.doi.org/10.1126/science.aam5609 http://www.ncbi.nlm.nih.gov/pubmed/28082553 http://business.financialpost.com/2012/06/08/pipeline-company-reports-oil-spill-near-red-deer-river http://business.financialpost.com/2012/06/08/pipeline-company-reports-oil-spill-near-red-deer-river http://www.huffingtonpost.ca/2012/06/19/enbridge-elk-point-spill-_n_1610613.html https://www.sac-isc.gc.ca/eng/1506514143353/1533317130660 https://www.sac-isc.gc.ca/eng/1506514143353/1533317130660 http://www.cbc.ca/news/canada/saskatoon/saskatchewan-government-husky-energypipeline-leaks-oil-1.3690178 http://www.cbc.ca/news/canada/saskatoon/saskatchewan-government-husky-energypipeline-leaks-oil-1.3690178 http://www.cbc.ca/news/canada/saskatoon/james-smith-cree-nation-concerns-husky-oilspill-1.3742966 http://www.cbc.ca/news/canada/saskatoon/james-smith-cree-nation-concerns-husky-oilspill-1.3742966 https://canadians.org/fn-water https://canadians.org/fn-water https://www.vancouverobserver.com/news/oil-spill-burrard-inlet-could-cost-vancouver-12-billion-ubc-report https://www.vancouverobserver.com/news/oil-spill-burrard-inlet-could-cost-vancouver-12-billion-ubc-report http://dx.doi.org/10.1086/692559 http://dx.doi.org/10.1007/s10668-011-9284-x https://www.theglobeandmail.com/news/national/small-oil-leak-discovered-in-alberta/article4442357/ https://www.theglobeandmail.com/news/national/small-oil-leak-discovered-in-alberta/article4442357/ http://www.canadianunderwriter.ca/catastrophe s/cleanup-oil-spill-saskatchewan-cost-107-millionhusky-energy-says-1004109375/ http://www.canadianunderwriter.ca/catastrophe s/cleanup-oil-spill-saskatchewan-cost-107-millionhusky-energy-says-1004109375/ http://dx.doi.org/10.1177/0309132516648007 Sustainability 2020, 12, 47 9 of 9 30. Finch, D. Can the Great Slave Rise Again? Calgary Herald. Available online: http://www2.canada.com/ calgaryherald/news/story.html?id=8d29dc87-d191-49f4-8d04-4fb6ba51e797 (accessed on 12 March 2019). 31. Saskatchewan Government. Husky Oil Spill Activity and Response. 2016. Available online: https://www.saskatchewan.ca/government/husky-oil-spill-activity-and-response#status-report (accessed on 12 March 2019). 32. Alberta Energy Regulator (ARG). Nexen Long Lake Pipeline Failure. 2016. Available online: https: //www.aer.ca/compliance-andenforcement/nexen-long-lake (accessed on 12 March 2019). 33. NUKA. Oil Spill Response Analysis; NUKA Research and Planning Group: Vancouver, BC, Canada, 2015. 34. Huseman, J.; Short, D. A slow industrial genocide: Tar sands and the indigenous peoples of northern Alberta. Int. J. Hum. Rights 2012, 16, 216–237. [CrossRef] 35. Jump up. National Energy Board Responding to Pipeline Incident in Central Alberta—Canada News Centre. Available online: https://www.canada.ca/en/news/archive/2015/05/national-energy-board- responding-pipeline-incident-central-alberta.html (accessed on 5 March 2019). 36. Karpouzoglou, T.; Dewulf, A.; Clark, J. Advancing adaptive governance of social-ecological systems through theoretical multiplicity. Environ. Sci. Policy 2016, 57, 1–9. [CrossRef] 37. Lee, K.; Boufadel, M.; Chen, B.; Foght, J.; Hodson, P.; Swanson, S.; Venosa, A. The Behaviour and Environmental Impacts of Crude Oil Released into Aqueous Environments. Available online: https: //rsc-src.ca/sites/default/files/pdf/OIW%20Report_1.pdf (accessed on 12 March 2019). 38. Graham, J. New Rules for Saskatchewan Pipelines after Husky Oil Spill into River. Available online: https://www.ctvnews.ca/business/new-rules-for-saskatchewan-pipelines-after-husky- oil-spill-into-river-1.3180843 (accessed on 12 March 2019). 39. Colquhoun, H.L.; Levac, D.; O’Brien, K.K.; Straus, S.; Tricco, A.C.; Perrier, L.; Kastner, M.; Moher, D. Scoping reviews: Time for clarity in definition, methods, and reporting. J. Clin. Epidemiol. 2014, 67, 1291–1294. [CrossRef] [PubMed] 40. Conklin Métis Local. Stories from a Long Time Ago; Conklin Métis Local #193: Conklin, AB, Canada, 2016. 41. Eaton, E. Climate Politics in the Patch Engaging Saskatchewan’s Oil-Producing Communities on Climate Change Issues. Available online: https://www.policyalternatives.ca/sites/default/files/uploads/publications/ Saskatchewan%20Office/2017/10/ccpa-sk_climate-politics-in-patch_oct2017.pdf (accessed on 12 March 2019). 42. Gardner, T.U.S. Agency Launches Probe after Enbridge Oil Spill. Available online: https: //www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/us-agency- launches-probe-after-enbridge-oil-spill/article4446882/ (accessed on 15 March 2019). 43. Hoover, E. The River Is in US: Fighting Toxics in a Mohawk Community; University of Minnesota Press: Minneapolis, MN, USA, 2017. 44. Kelly, E.N.; Schindler, D.W.; Hodson, P.V.; Short, J.W.; Radmanovich, R.; Nielsen, C.C. Oil sands development contributes elements toxic at low concentrations to the Athabasca River and its tributaries. Proc. Natl. Acad. Sci. USA 2010, 107, 16178–16183. [CrossRef] [PubMed] 45. Kuptana, R. Indigenous Peoples in Canada: Politics, Policy and Human Rightsbased Approaches to Development and Relationship-Building. Available online: https://www.facebook.com/notes/ 10152653528630909/ (accessed on 8 August 2018). 46. Tsleil-Waututh Nation. Environmental Assessment Report. Available online: https://twnsacredtrust.ca/ assessment-report-download/ (accessed on 1 May 2019). 47. Nosek, G. Re-imagining Indigenous Peoples’ Role in Natural Resource Development Decision Making: Implementing Free, Prior and Informed Consent in Canada through Indigenous Legal Traditions. Univ. Br. Columbia Law Rev. 2017, 50, 95–160. 48. Morton, B. Kinder Morgan Pipeline Project Faces Hurdles as Crude Oil Price Drops. Available online: http://www.timescolonist.com/news/b-c/kinder-morgan-pipeline-project-faces-hurdles-as- crude-oil-price-drops-1.2022622 (accessed on 6 August 2015). © 2019 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). http://www2.canada.com/calgaryherald/news/story.html?id=8d29dc87-d191-49f4-8d04-4fb6ba51e797 http://www2.canada.com/calgaryherald/news/story.html?id=8d29dc87-d191-49f4-8d04-4fb6ba51e797 https://www.saskatchewan.ca/government/husky-oil-spill-activity-and-response#status-report https://www.aer.ca/compliance-andenforcement/nexen-long-lake https://www.aer.ca/compliance-andenforcement/nexen-long-lake http://dx.doi.org/10.1080/13642987.2011.649593 https://www.canada.ca/en/news/archive/2015/05/national-energy-board-responding-pipeline-incident-central-alberta.html https://www.canada.ca/en/news/archive/2015/05/national-energy-board-responding-pipeline-incident-central-alberta.html http://dx.doi.org/10.1016/j.envsci.2015.11.011 https://rsc-src.ca/sites/default/files/pdf/OIW%20Report_1.pdf https://rsc-src.ca/sites/default/files/pdf/OIW%20Report_1.pdf https://www.ctvnews.ca/business/new-rules-for-saskatchewan-pipelines-after-husky-oil-spill-into-river-1.3180843 https://www.ctvnews.ca/business/new-rules-for-saskatchewan-pipelines-after-husky-oil-spill-into-river-1.3180843 http://dx.doi.org/10.1016/j.jclinepi.2014.03.013 http://www.ncbi.nlm.nih.gov/pubmed/25034198 https://www.policyalternatives.ca/sites/default/files/uploads/publications/Saskatchewan%20Office/2017/10/ccpa-sk_climate-politics-in-patch_oct2017.pdf https://www.policyalternatives.ca/sites/default/files/uploads/publications/Saskatchewan%20Office/2017/10/ccpa-sk_climate-politics-in-patch_oct2017.pdf https://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/us-agency-launches-probe-after-enbridge-oil-spill/article4446882/ https://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/us-agency-launches-probe-after-enbridge-oil-spill/article4446882/ https://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/us-agency-launches-probe-after-enbridge-oil-spill/article4446882/ http://dx.doi.org/10.1073/pnas.1008754107 http://www.ncbi.nlm.nih.gov/pubmed/20805486 https://www.facebook.com/notes/10152653528630909/ https://www.facebook.com/notes/10152653528630909/ https://twnsacredtrust.ca/assessment-report-download/ https://twnsacredtrust.ca/assessment-report-download/ http://www.timescolonist.com/news/b-c/kinder-morgan-pipeline-project-faces-hurdles-as-crude-oil-price-drops-1.2022622 http://www.timescolonist.com/news/b-c/kinder-morgan-pipeline-project-faces-hurdles-as-crude-oil-price-drops-1.2022622 http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Introduction Scoping Methodological Framework of Study Overview Findings from Selected Studies Thematic Analysis from Study Findings Lack of Indigenous Engagement in Energy Management and Pipelines Impact of Pipelines on Indigenous Drinking Water Quality Pipeline Spills/Leaks and Impacts Discussion and Recommendations References 
work_65et3y44tvgtbfilsbbc2txksu	----	No Job Name BALANCING JUSTICE AND MERCY Reflections on Forgiveness in Judaism Louis E. Newman ABSTRACT The concept of forgiveness is analyzed as a moral gesture toward the offender designed to help restore that individual’s moral standing. Jewish sources on the conditions under which forgiveness is obligatory are explored and two contrasting positions are presented: one in which the obligation to forgive is conditional on the repentance of the offender and another in which people are required to forgive unconditionally. These two positions are shown to represent different ways of framing the offending behavior that rest, in turn, on different ways of balancing the need for justice and for mercy respectively. In the final analysis, Judaism’s two contrasting attitudes toward forgiveness are rooted in different theological assumptions and different ways of construing the very goals of the moral life. The author points out the merits and shortcomings of both positions and concludes with the suggestion that the two complement each other in important ways. KEY WORDS: forgiveness, justice, mercy, Jewish theology, social order Faithfulness and truth meet; justice and well-being kiss. – Psalm 85:11 1. Conceptualizing Forgiveness Forgiveness may be among the most complex and contested topics in moral philosophy and theology. For one thing the very definition of forgiveness is a matter of dispute. Some treat it in a quasi-legal manner as a matter of forgoing retribution, or waiving one’s right to press charges against the offender (Murphy 2003, 15). Others define forgiveness in terms of the inner emotional or psychological state of the one who offers it, as a letting go of resentment toward one’s offender (Grovier 2002). Still others analyze it as a verbal gesture, an example of what John Austin called “performative speech” (Haber 1991). The purpose of forgiveness is similarly contested. It may be designed to effect reconciliation with the offender on a personal level, or to welcome that person back into society. But others see forgiveness primarily as a way of healing the offended Louis E. Newman is the John M. and Elizabeth W. Musser Professor of Religious Studies and Associate Dean of the College and Director of Advising, Carleton College. Louis E. Newman, Carleton College, 1 N. College St., Northfield, MN 55057, lnewman@carleton.edu. JRE 41.3:435–456. © 2013 Journal of Religious Ethics, Inc. party’s own pain, and so imagine that one could forgive the offender without ever telling that person about it.1 This last position is reflected in much contemporary self-help literature and captures an increas- ingly popular view according to which forgiveness is a gift to the one who forgives, essentially an act of self-care (Luskin 2002; Borris- Dunchunstang 2007; and Friedman 2009). Forgiveness is further complicated by the enormous range of circum- stances in which it arises, from the most trivial of missteps (I forgive my friend for not inviting me to his birthday party) to the most heinous of crimes (as when one forgives one’s rapist or the murderer of one’s child). It arises not only in the context of interpersonal relationships, but in relationships between groups and in the sphere of international politics. Forgiveness varies considerably in situations where the offending and offended parties know one another, or even more, when they have a longstanding, intimate relationship, as distinct from situations in which the offender has no prior relationship to the one he hurt. Finally, any cogent understanding of forgiveness must encompass those situations in which one forgives someone who has died, or someone who is entirely anonymous, as well as the special case of self-forgiveness. Even this brief overview suffices to illustrate the many ways in which the notion of forgiveness confounds our efforts to pin it down in any conceptually neat way. I suspect that many of the disputes about forgive- ness in the ever-growing literature on the subject can be traced to the fact that the authors are talking about quite different things, but using the same terminology to describe them.2 It follows that anyone who dares to step into this conceptual quagmire at a minimum owes his reader some working definition of forgiveness. First, it seems clear to me that forgiveness as a moral gesture is other-regarding. Whatever its ultimate purpose—and it is my view that forgiving can be done for a number of quite different reasons—it only counts as a moral act of forgiveness if it is meant to benefit the offender in some way.3 If I “forgive” my abusive father only because I want to placate him and ensure that I receive my share of his estate, I am acting 1 Kolnai 1973, 95 argues that the reconciliation entailed in acts of forgiveness must be mutual, that is, accepted by the offender. But I can see no reason for restricting forgiveness in this way. Certainly we all know of instances in which someone forgives a person who is anonymous (the driver who treated one rudely) or someone who is dead or otherwise unreachable. 2 For an extensive bibliography on forgiveness, see Enright and North 1998, 165–86. 3 This need not preclude the case of forgiving the dead. We often do things on behalf of those who are deceased, as when we fulfill a promise that they made, but were not able to fulfill in their lifetimes. Similarly, we sometimes do things that can honor those who have died, as when we grant posthumous awards, or bring things to light that clear the deceased’s wrongfully besmirched reputation. 436 Journal of Religious Ethics out of self-interest, not to relieve him of guilt or to demonstrate that my love is stronger than his misdeed, or out of any (re)consideration of his moral standing at all (Couenhoven 2010). Similarly, the idea that forgive- ness is primarily a gift to oneself confuses the purpose of forgiveness with its secondary effects. There is no doubt that in many cases there are often powerful emotional benefits for one who forgives. But if forgiveness is to have any moral meaning, it must be done primarily as a response to and for the benefit of the offender. The person who “forgives” another in order to feel better is akin to the person who gives a large gift to charity, not because she cares at all about the charity, but simply to avoid the burden of a major tax liability. So we should be clear at the outset that some acts that appear to be forgiveness in the moral sense are really nothing of the sort. And it is only forgiveness as a moral gesture that interests me here. Second, forgiveness encompasses both emotional and behavioral ele- ments. One who claims to forgive and even renews a relationship with his offender, but who inwardly continues to perseverate over the offense, to nurse resentments and ill will, has not genuinely forgiven the offender. Conversely, one who has emotionally let go of those hard feelings, but who refuses to treat the offender as a person whose moral standing has been at least partially, if not wholly, restored, has undergone a change of heart, but not really accepted the offender as forgiven. So at least ideally forgiveness will manifest itself both as a change of attitude and a change in behavior toward one’s offender.4 Third, I think forgiveness admits of gradations; it is not an all-or- nothing proposition. For this reason it is a mistake to tie forgiveness too closely to reconciliation. At one end of the spectrum it is certainly the case that forgiveness can yield a new and deeper relationship between two people who have been estranged, as when a marriage is made stronger after one partner comes to forgive the other for an act of betrayal. But there are less dramatic cases in which forgiveness merely brings a broken relationship back to neutral ground, as it were. Here there is no deep reconciliation, only a cessation of hostility and a commitment to treat the other respectfully, despite past transgressions. Forgiveness, then, does not require that the two parties involved arrive at any particular harmonious 4 I recognize that this claim is controversial and that some will want to count as forgiveness some gestures that are either entirely emotional or (perhaps less often) entirely behavioral. But there are good reasons for maintaining a model of forgiveness that encom- passes both elements, at least as the paradigm case. After all, moral transgressions affect the injured party emotionally (and often physically) and also change the social (and often legal) standing of the offender. If forgiveness is meant to mitigate the effects of the transgression, then, we should expect that it will do so by addressing both the emotional state of the injured party and the social standing of the offender. In proposing this model of forgiveness I nonetheless recognize that there is a wide range of moral gestures with strong “family resemblances” to this paradigm and that these, too, are worthy of consideration. Balancing Justice and Mercy 437 end-state, only that they move beyond the state of moral disequilibrium that characterizes a relationship broken by harmful or disrespectful acts. With these considerations in mind, then, I will define forgiveness as a moral gesture offered by the offended party to the offending party as a way of restoring that person’s moral standing (whether in the context of their relationship or in some larger, social context), which entails adjusting one’s feelings about and behavior toward that person in ways that minimize (and sometimes entirely negate) the ongoing effects of the person’s past offense.5 The question at hand is how classical Jewish sources view acts of forgiveness so defined.6 In what follows I will argue that there are two primary strands within this tradition that understand the obligation to forgive quite differently. I will then suggest that these differences can be traced to two alternative conceptions of the meaning of forgiveness and its place in the religious life. That is, whether forgiveness is obligatory and, if so, why turns out to depend on different understandings of the way in which this moral gesture is embedded in a web of beliefs about God’s love, the extent of our responsibilities for the behavior of others, and the purpose of our moral behavior in general. 2. Conditional Forgiveness Many Jewish discussions of our topic regard forgiveness as the required response to an offender who has taken appropriate steps to acknowledge his wrongdoing and repair the damage. The source most often cited in support of this view is M. Baba Kamma 8:77: Even though a person gives [monetary compensation] to one [whom he has shamed], he is not forgiven until he asks [explicitly for forgiveness] from him [whom he has shamed]. . . . And whence do we derive the principle that he who is called upon to forgive should not be hard-hearted? It is written [Genesis 20:17], “Then Abraham interceded with God, and God healed Abimelech.” 5 In what follows I will restrict my comments to cases of interpersonal forgiveness, though I think that many of the principles I evoke here could be applied to other spheres of human activity. 6 I will deal here only with cases of interpersonal forgiveness between individuals who have had direct contact with one another. Forgiveness between groups and/or nations for historic injustices raises additional complexities insofar as such cases involve a more symbolic dimension and frequently have their meaning in larger systems of political behavior. 7 Unless otherwise noted, all translations from classical rabbinic literature and Jewish lawcodes are my own. This article uses standard abbreviations: “M.” for the Mishnah, “B.” for the Babylonian Talmud, “T.” for the Tosefta, and “MT” for Moses Maimonides’s Mishneh Torah (c. 1180). 438 Journal of Religious Ethics This early rabbinic ruling underscores a number of important points.8 First, the purpose of forgiveness is essentially restorative. Just as one restores a situation of material equity through the payment of damages, one must likewise restore the state of moral equilibrium that has been disturbed by the offense in question. Such a reconciliation can be accom- plished only by seeking forgiveness directly from the individual harmed. Second, the rabbis generally assume that the primary responsibility for repairing a “moral gap” lies with the person who created it. In the proper course of things, that is, seeking forgiveness precedes granting it. The interrelationship of these two duties—seeking forgiveness and granting it—is expressed with characteristic clarity and precision by Maimonides: Even if one only injured the other in words [and not in deeds], he must pacify him and approach him until he forgives him. If his fellow does not wish to forgive him, the other person brings a line of three of his friends who [in turn] approach the offended person and request from him [that he grant forgiveness]. If he is not accepting of them, he brings a second [cadre of friends] and then a third. If he still does not wish [to grant forgiveness], one leaves him and goes his own way, and the person who would not forgive is himself the sinner. (MT Laws of Repentance, 2:9) 8 Daniel Statman takes issue with the following interpretation of this mishnah, arguing that it is not about acquiring forgiveness from the one wronged at all, but rather from God and that the point of the passage is that Abimelech is in need of Abraham’s prayer to God on his behalf. Statman goes on to reject the view that this source and others cited support the view that Judaism insists on the repentance of the transgressor as a condition of the duty to forgive him. However, classical and modern commentaries to the Mishnah read it as I have, and the structure of the passage seems to require that there is a symmetry between the first clause, in which the offender is required to ask for forgiveness (presumably from the offended party) and the second clause, in which the offended party is told not to withhold forgiveness. Moreover, a number of other passages, both from Maimonides and from Karo, repeatedly emphasize that “if the offender repents and pleads for forgiveness, he should be forgiven.” If the repentance of the offender were not a precondition for this duty to forgive, why would these authorities state the rule in this way, rather than simply state that offended persons must always unilaterally forgive those who offend them? Statman also critiques a position that he mistakenly attributes to me based on his reading of Newman 1987. In that article I argued that, by insisting that forgiveness is obligatory only in cases where the offender has repented, Judaism avoids the problem that forgiveness can be tantamount to condoning the offense. Contra Statman, however, neither in that article nor here do I endorse the view that forgiveness is paradoxical in that if the offender repents, it is superfluous, and if the offender does not repent, it is unwarranted (see Kolnai 1973 for an articulation of this position). Plainly, even in cases where the offender repents, the injured party may have legitimate reasons for continued feelings of resentment, anger, and even the desire for retribution where the offense was extremely serious or irreversible. So forgiveness is not superfluous. I do, however, now agree with the conclusion of Statman’s article that Judaism (at least sometimes) affirms the value of unconditional forgiveness, which is a change from the position I defended in my earlier article. See Statman 2012. Balancing Justice and Mercy 439 Maimonides emphasizes what the Mishnah passage only implied, that the offender bears primary responsibility for initiating the process of forgive- ness. On the other hand, the offended individual has a corresponding duty to forgive anyone who sincerely requests it and the failure to do so constitutes an offense no less than the action of the initial offender. This formulation of the duty to forgive has a long history in Jewish legal sources and finds expression again in the famous sixteenth-century law code of Joseph Karo, the Shulh· an Arukh. One who harms his neighbor, even if he compensates him according to the five things [for damage, for pain, for healing, for loss of time and for shame; see M. Baba Kamma 8:1] he is not forgiven until he requests it [from the one he harmed] and he forgives him. And it is forbidden for the injured one to be hard-hearted about forgiving, for this is not the way of Jews. Rather, once the injurer requests from him and pleads with him once or twice, and it is obvious that he has repented of his sin and regrets his evil ways, he should forgive him. And everyone who hurries to forgive is to be praised, and the spirit of the sages is pleased with him. (Hoshen Mishpat 422, emphasis added) It is interesting that Karo makes explicit the expectation that forgiving quickly is praiseworthy, and I will return below to the question of why these virtues of generosity and compassion are so highly valued. But it is worth noting here that the tendency to forgive is cast as something that “the sages are pleased with,” a classic rabbinic phrase used to indicate something that is morally praiseworthy, but not legally required.9 What I am calling here the legalistic perspective on forgiveness will strike many familiar with the literature of this subject as unduly restric- tive insofar as it portrays the duty to forgive as conditional. Why would we not have a duty to forgive unilaterally? The problem with uncon- ditional forgiveness seems to lie with the notion that it threatens to undermine the moral condemnation of the offender. This emerges again in Maimonides’s formulation of the law in Leviticus 19:17 that we are required to rebuke others for their misdeeds. And thus it is said, “You shall surely rebuke your neighbor” (Leviticus 19:17). If the offender repents and pleads for forgiveness, he should be forgiven. The forgiver should not be obdurate, as it is said, “And Abraham prayed unto God (for Abimelech).” (Genesis 20:17) If one observes that a person committed a sin or walks in a way that is not good, it is a duty to bring the erring man back to the right path and point out to him that he is wronging himself by his evil courses. . . . And so one is bound to continue the admonitions until the sinner assaults the admonisher 9 See my discussion of this and other similar terms in Newman 1998, 46–49. 440 Journal of Religious Ethics and says to him “I refuse to listen.” Whoever is in a position to prevent wrongdoing and does not do so is responsible for the iniquity of all the wrongdoers whom he might have restrained. (MT Laws of Ethical Conduct, 6:6–7)10 Forgiveness granted unconditionally would threaten to undermine or ignore the culpability of the offender. Indeed, it is not difficult to imagine an offender who might come to rely on the assurance of forgiveness and take this as license to continue transgressing.11 So it is only the offender’s repentance that entitles him to forgiveness, for the person has then distanced himself from the harm he caused, disowned it, as it were, and so has a claim on those he harmed to consider him in a new light. Indeed, in some sources the rabbis press this point further, proposing that prior to repentance one even has an obligation to hate the sinner. As Maimonides puts it, “The sages decreed that if one all alone sees another committing a crime and warns him against it and he does not desist, one is obligated to hate him until he repents and leaves his evil ways” (MT Laws of Homicide and Preservation of Life, 13:14).12 This legalistic perspective gives paramount importance to the concerns of justice and to the idea that each member of the community is res- ponsible for the behavior of all others. In this context, unconditional forgiveness is potentially dangerous, for it opens the door to letting the wrongdoer “off the hook,” and so has possibly far-reaching ramifications for the social order. Only when we take responsibility to ensure that transgressors are brought back in line—first by rebuking them and then by withholding our forgiveness until they reform their ways—can we make this society a place in which respect for legal and moral norms is reinforced. And so forgiveness cannot be a duty in cases where the offender has not first acknowledged his offense and taken steps to rectify it. In short, forgiveness on this view takes its place within a system of legal and moral accountability; offering it to those who have not earned it would encourage transgressors, undermine social norms, and abrogate our duty to chastise those who violate the law. 3. Unconditional Forgiveness In light of the foregoing discussion it may come as a surprise that there is a starkly different view in many classical Jewish sources, according to 10 Translation taken from Maimonides 1972, 61. 11 Other passages in rabbinic literature consider just this possibility in connection with the view that the Day of Atonement automatically absolves all sinners of their sins when it states that for “one who sins and says, ‘The Day of Atonement will atone,’ the Day of Atonement does not atone” (M. Avot 8:9). 12 Translation taken from Maimonides 1972, 168–69. See also B. Pesah· im 113b; The Fathers According to Rabbi Nathan 16. Balancing Justice and Mercy 441 which one is required to forgive even those who have not repented. The duty to offer such “unearned” forgiveness is articulated in the following early rabbinic source: “He who injures his fellow, even though the one who did the injury did not seek [forgiveness], from the injured party—the injured party nonetheless has to seek mercy for him, since it says, ‘Then Abraham prayed to God, and God healed Abimelech’ (Gen. 20:17)” (T. Baba Kamma 9:29, emphasis added). The contrast with the preceding could hardly be more stark, especially given that the very same prooftext is offered in support of the view that unconditional forgiveness is a duty, and that the text derives from the same period as the Mishnah text cited above. Indeed, the Talmud records that Mar Zutra, each evening before retiring to bed, made a practice of forgiving all who harmed him, a practice that is reflected in many traditional prayerbooks to this day (B. Megillah 28a). In one formulation of this prayer, the offer of forgiveness is especially expansive: “I hereby forgive and absolve anyone who has angered or provoked me or sinned against me, physically or financially or by failing to give me due respect, or in any other matter relating to me, involuntarily or willingly, inadvertently or deliberately, whether in word or deed: let no one incur punishment because of me” (Sacks 2009, 294). The absence of any mention of repentance on the part of those being forgiven underscores that this act of forgiveness is offered freely as an expression of goodwill. It is also worth noting that the idea is not merely to relinquish feelings of resentment, but also to ask that God be merciful in not punishing the offender. This further highlights the fact that we are dealing here with a theory of forgiveness that places it beyond the concerns of the judicial system that figured so prominently in the texts considered above. For while this text does not explicitly link unconditional forgiveness to forgoing human punishment, it is hard to imagine that the author of this prayer would beseech God to forgo punishment of the offender, but then insist on exacting it in an earthly court. This emphasis on compassion, though it seems to appear predominantly in non-legal sources within the tradition, is reflected as well in certain legal texts. In Exodus 23:4–5 we find that “if you meet your enemy’s ox or his ass going astray, you shall surely bring it back to him again. If you see the ass of him that hates you lying under its burden, and would forbear to unload it, you shall surely unload it with him.” The implication of this rule is that we are not to let feelings of animosity stand in the way of assisting those in need, and while this does not precisely command one to forgive the enemy, it surely commands one to treat the enemy with the same consid- eration due to non-enemies.13 Subsequent rabbinic commentary on this 13 The biblical injunction not to take vengeance or bear a grudge against one’s neighbor (Leviticus 19:18) similarly does not directly require forgiveness, but it does preclude the retributive attitude that underlies the refusal to forgive. 442 Journal of Religious Ethics biblical rule makes explicit the moral purpose of the rule: “[If one has the choice of helping] his friend to load up his ass, or his enemy to unload his ass, his religious duty is to unload the ass with his enemy [Ex. 23:4], so as to break his heart [that is, to break his instinctive desire to ill-treat his enemy]” (T. Baba Metsi’a 2:26).14 Cultivating compassion for those who (presumably) have wronged us, then, is a positive commandment, as well as a traditional, pietistic practice. It is consonant with the view that we are required to forgive others, irrespective of their posture toward us, without first rebuking them or insisting on their repentance. If practiced on a regular basis, such unconditional forgiveness would reinforce a generosity of spirit even—perhaps especially—toward those who have not repented or sought forgiveness. How shall we understand this very different attitude toward forgive- ness in Judaism? What might be the grounds for such a practice of unconditional forgiveness? I believe that there are two separate sets of considerations that find expression in this responsibility to forgive unconditionally. The first is the principle of imitatio Dei, coupled with the view that God’s nature is essentially forgiving. These ideas are found throughout biblical and rab- binic literature,15 so a few characteristic examples will suffice to illustrate the point. The prophetic literature is full of passages depicting God as endlessly merciful. Micah 7:18–19 is typical: Who is a God like You, Forgiving iniquity And passing over transgression; Who has not maintained His wrath forever Against the remnant of His own people, Because He loves graciousness! He will take us back in love; He will cover up our iniquities, You will hurl all our sins Into the depths of the sea. Similarly, the High Holiday liturgy includes the following passage: “God, Sovereign who sits on a throne of mercy, acting with unbounded grace, 14 See also Sifre Deuteronomy 222 and 225, and B. Baba Metsi’a 32b. Maimonides explains the purpose of the rule as “to curb one’s evil inclination”; see MT Laws of Murder and Preservation of Life, 13:13. 15 To be sure, Jewish sources about God’s nature are not so consistent, as I will discuss below. But it is striking that in each instance where the rabbis reflect on the value of following God’s example, they consistently point to God’s infinitely compassionate, loving nature. They famously even pervert the meaning of Exodus 34:6–7, which comes to have a central place in the traditional liturgy on holidays and especially on Rosh Hashanah and Yom Kippur, by dropping those clauses of the verse that reference God’s retribution against those who violate God’s law. Balancing Justice and Mercy 443 forgiving the sins of Your people, one by one, as each comes before You, generously forgiving sinners and pardoning transgressors, acting chari- tably with every living thing: do not repay them for their misdeeds” (Rabbinical Assembly 2010, 261). And when the rabbis elaborate on the meaning of Deuteronomy 28:9, “you shall walk in God’s ways,” they comment: This means, as the ways of Heaven are to be gracious, graciously bestowing gifts not only upon those who know Him but also upon those who do not know Him, so you are to bestow gifts upon one another. And, as the ways of Heaven are to be long-suffering, long-suffering with the wicked and then accepting them in repentance, so you are to be long-suffering [with the wicked] for their good and not impatient to impose punishment upon them. For, as the ways of Heaven are abundant in lovingkindness, ever leaning to lovingkindness, so are you ever to lean toward doing lovingkindness to others rather than lean toward doing them harm. (Tanna Debe Eliyyahu 135; Braude and Kapstein 1981, 333) To be forgiving, then, is nothing less than to reflect and extend God’s own forgiving nature in our relationships with others. In a sense, the under- lying logic is that if God can be counted upon to be this loving toward those who transgress, by what right can we hold transgressors to a higher standard? The rabbis implicitly acknowledge this connection, when they suggest that if we extend forgiveness to others, God will reward us by doing likewise (B. Megillah 28a). In a very clever reading of the verse from Micah cited above, the rabbis argue: “Raba said, ‘Anyone who passes over the traits [of those who injure him]—his own transgressions will be passed over. As it is written (Micah 7:18): ‘forgiving iniquity and passing over transgression.’ For whom does [God] forgive iniquity? For the one who passes over transgressions [committed against him]” (B. Rosh Hashanah 17a). By imitating God’s forgiveness, we also evoke it. The implications of this theology are far-reaching. The world was established by a loving God who accepts and forgives human imper- fections. When we channel this divine quality, we not only draw closer to God, we become agents of God’s compassion and love in the world. In one of the emotional climaxes of the High Holiday liturgy, the congregation sings: “Avinu malkeinu [Our Father, our King], have mercy on us, answer us, for our deeds are insufficient; deal with us charitably and lovingly, and redeem us” (Rabbinical Assembly 2010, 94). From this perspective, we are all morally flawed, all in need of divine forgiveness, all the undeserving beneficiaries of God’s compassion. As a result, we have no moral choice but to extend this same compassion to those who harm us; to do otherwise would demonstrate a stunning lack of gratitude, as well as monumental hypocrisy. A second basis for this obligation to forgive unconditionally may be found in the tradition’s emphasis on personal humility. In the view of 444 Journal of Religious Ethics many it is a virtue to cultivate humility, which includes minimizing one’s achievements, reflecting regularly on one’s mortality, and being especially scrupulous about one’s own behavior, lest one inadvertently become arro- gant or complacent about one’s moral worthiness. In the words of one classical source: “If you have done your fellow a slight wrong, let it be a serious matter in your eyes; but if you have done your fellow much good, let it be a trifle in your eyes. And if your fellow has done you a slight favor, let it be a great thing in your eyes; if your fellow has done you a great evil, let it be a little thing in your eyes” (The Fathers According to Rabbi Nathan, 41:11; see also Derekh Eretz Zutta 1:3). The implication of this is that one should “judge everyone favorably [lit. ‘on the side of their merits’]” (M. Avot 1:6). Cultivating such an attitude toward oneself and others would lead inevitably to an inclination toward forgiveness. To withhold forgiveness is to continue to assert one’s moral superiority over the offender. It is to say, in effect, “as the injured party, I have a moral claim against you, and I will exercise that claim against you until you convince me that you have disavowed your immoral behavior.” While this may be morally justifiable—after all, the offender does owe a kind of moral debt to the one he harmed, and the latter is entitled to “collect”—this attitude is not consonant with the sort of humility that the rabbis often encourage. In this way, unconditional forgiveness is grounded in a different way of construing the relationship between the offended and the offender. Rather than highlighting the moral distance between them, the tradition encour- ages people to practice a kind of humility that continually prompts us to minimize that moral gap, or even to close it entirely.16 Whatever the offense committed against us, we are essentially no better, no more moral, than those who committed it. From this perspective, we do well to forgive others, whether they have “earned” it or not. For the question here is not whether the offender deserves our forgiveness, but whether we deserve to see ourselves as more worthy than they. Forgiveness is nothing less than the expression of an attitude that we are all more or less equally flawed, hence we had best refrain from exerting our moral superiority over others. 4. Reframing Forgiveness How are we to make sense of these starkly contrasting views of forgiveness in Judaism? It is important here that we avoid the path of least resistance, which is always to portray our religious traditions as 16 Roberts 1995 captures one aspect of this attitude, which he terms “forgivingness,” when he notes that it is essentially a disinclination on the part of the injured party to remain in a state of alienation from the offender, either this particular offender or all offenders in general (294). Balancing Justice and Mercy 445 more homogeneous than they actually are and, in the process, to explain away those elements that are not to one’s liking. If one surveys the literature of Jewish views of forgiveness, it seems that this tendency is much in evidence. Most authorities will contend that the legal view presented above is dominant and often contrast this view with the supposedly dominant Christian view, according to which we are obligated to forgive everyone all the time, and as quickly as possible. So, even as sophisticated a thinker as Elliot Dorff, for whom I have the highest regard, writes, “if the offender never admits wrongdoing, then even if he or she has served a prison term, the very first step in return has not been achieved and no forgiveness can legitimately be demanded of the victims.” Then, after acknowledging that Judaism values compassion and mercy as well as justice, he concludes, although gross offenses should probably not be forgiven without sincere attempts to engage in the process of return, one might be prone to forgive more minor offenses without such a process, both as a pragmatic way of getting on with one’s life and possibly of restoring a friendship and also as an expression of the religious demand that we imitate God. Such free forgiveness, though, becomes harder to justify as the offense grows larger. . . . Then God’s righteousness seems to be the divine attribute that we should emulate. (Dorff 2003, 222–24) While Dorff tries valiantly to accommodate both of the views noted above, he clearly sees one as dominant and can, at best, find room for the idea of unconditional forgiveness only when the offenses involved are relatively minor.17 But suppose that, instead of arbitrarily asserting the dominance of one view over the other, we give each its due. The question we then face is: what sets of assumptions within the tradition make it possible for two such different views of forgiveness to emerge? One way to make sense of these divergent views would be to explain them in terms of alternative moral theories. We might posit, then, that the legal view accords with a social ethic concerned primarily with the maintenance of social order. Accordingly, it makes the duty to forgive dependent on the prior trans- formation of the offender. By contrast, the view that forgiveness should be 17 So, too, Telushkin 2006 in which he acknowledges that Judaism expects people to be forgiving, but summarizes the tradition’s view that “Generally, forgiveness should be dependent on the offending party’s repentance” (1:196). Another version of the same position is articulated by Schimmel 2002 where he writes in reference to Jewish views of forgiveness, “We have to imitate God, and God, for the most part, punishes unrepentant sinners and forgives repentant ones. . . . Some of the differences between rabbinic Judaism and Chris- tianity are ones of emphasis rather than of the absolute presence or absence of a particular concept or value. Repentance and justice are values in Christianity, just as forgiveness is a value in rabbinic Judaism. But the former are emphasized more in rabbinic Judaism and the latter in certain Christian denominations” (69). 446 Journal of Religious Ethics unconditional could be associated with a virtue ethic that is concerned primarily with the cultivation of personal humility and godliness. The moral gesture of forgiveness, then, might be viewed in terms of the moral character of the one who forgives. We might be tempted to conclude, then, that forgiveness is either a matter of (circumscribed) legal duty or of (unconditional) personal virtue. But such a sharp distinction does not do justice to our sources. After all, even some of the legal sources recognize and praise the virtue of forgiving quickly and one of the legal sources requires unconditional forgiveness. Conversely, those who expound the virtue of unconditional forgiveness certainly also believe that it is a duty to rebuke transgressors, as the Torah commands. So our sources do not permit us to posit a dichotomy between a social ethic that emphasizes justice and hence conditional forgiveness and a virtue ethic that emphasizes mercy and hence uncon- ditional forgiveness. If we wish to understand the roots of these two contrasting perspectives on forgiveness, we will do well to examine more carefully just what the moral gesture of forgiveness entails. That is, we will need to explore what understanding of forgiveness—its purpose and meaning—underlies these two contrasting views, and how each of them represents an authentically Jewish view. To answer that question, we do well to refer to the work of Robert Enright and Joanna North. As North describes it, the essence of forgive- ness entails a “reframing” of the offender “whereby the wrongdoer can be regarded as someone over and above the wrong he has committed, a means of ‘separating’ the wrongdoer from the wrong he has done. This is the most crucial stage in the whole process of forgiveness” (North 1998, 24).18 North goes on to explain that this process of reframing enables the victim to see the wrongdoer as a whole person and to contextualize the wrongful deed as something that occurred in particular circumstances, for particular reasons. The wrongdoer cannot, then, be reduced to this particular hurtful action.19 This analysis of forgiveness has the dual virtue of both providing some conceptual clarity about the nature of forgiveness and capturing what 18 Of course, this view parallels the teaching frequently attributed to Jesus, but not actually articulated in any single biblical verse, that we should “hate the sin, but love the sinner.” 19 Hampton 1988 expresses this view of forgiveness with particular clarity. “Forgiveness is thus the decision to see a wrongdoer in a new, more favorable light. Nor is this decision in any way a condonation of wrong. The forgiver never gives us her opposition to the wrongdoer’s action, nor does she even give up her opposition to the wrongdoer’s bad character traits. Instead, she revises her judgment of the person himself—where that person is understood to be something other than or more than the character traits of which she does not approve. And she reaches the honest decision that this person does not merit her moral hatred, because he is still decent despite his action” (84–85). Balancing Justice and Mercy 447 many dozens of subjects in psychological studies of forgiveness say about their own experiences of forgiving (Enright, Freedman, and Rique 1998). But this notion of “reframing” the offender also opens the door to a more extended analysis of the process and purpose of this sort of moral gesture. In fact, I think the contrasting Jewish perspectives on forgiveness noted above enable us to see that this act of reframing is more complex and variable than we might at first imagine. Accordingly, I now want to extend North’s analysis by suggesting that Jewish views of forgiveness need to be interpreted in terms of the ways in which and the reasons for which the offender’s past misdeeds are “reframed.” One kind of reframing focuses very narrowly on the particular misdeed of a particular individual offender. This act demands a response, and the sort of response that seems warranted might just depend on whether we think it is typical or atypical of this individual, whether it is characteristic or an aberration. The only way we can know this is if we focus on this individual’s life, and especially on whether the offender takes action to disavow the harmful behavior and replace it with positive behaviors. That is, our assessment of the misdeed depends on whether the offender seems willing to redress the wrong and, as the tradition says, “return in repentance.” Framed in this way, our forgiveness of any particular misdeed will depend on how it fits within a larger narrative of the offender’s life, especially how his or her life unfolds after the transgression in question. So it is that some Jewish authorities insist that there is no (required) forgiveness without prior repentance. But we might reframe the hurtful deed in a somewhat broader context, that is, in the context of the offender’s life in society. Here the focus shifts from the life story of the offender to the place of the offender in relation to others who have not been party to this particular offense. This is where the concern for rebuking transgressors and hating the sinner comes in. For if we attend to the potential harm that might be caused to other innocent people in the future if this offender’s behavior is not redressed, then we will see this deed very differently. Our response will be condi- tioned by a concern to protect society and reinforce its norms. Now the proper response to this offender will be considered not as a matter of restoring a relationship between these two individuals in isolation, but rather as a matter of restoring a network of social relationships, present and future, that has been frayed by this offense. Framed in this way, our forgiveness will depend on the way in which we assess the ramifications of this offense for the community at large. We may widen our framing of the offense still more, by focusing not on this offense alone, but on all offenses by all of us, not only here and now, but in general. Now this particular offender’s action will be viewed as emblematic of the human propensity to hurtful behavior overall. Our concern is no longer with the particulars of this offender’s life or even 448 Journal of Religious Ethics the potential that he or she will offend against others in the future. Rather, we choose to see the misdeed as just one instance among count- less others that all of us have done or will do, precisely because all of us are flawed creatures. And insofar as we look past the details of this transgression, we will respond to the offender as one flawed person to another and, in Jesus’ words, “let the one who has not sinned cast the first stone” (John 8:7). This way of reframing the offender’s behavior is grounded in the attitude of humility I discussed above, for now I see this offense as part and parcel of human fallibility broadly construed. Framed in this way, our forgiveness will depend on the extent to which we affirm the common human failings that offender and offended alike are subject to. Finally, we might widen our focus yet more to encompass our relation- ship with God. Insofar as we hold certain beliefs about God’s goodness and justice, as well as a desire to do God’s will or strive to emulate God’s qualities, we will see ourselves and the offender in an entirely different light. Our responses to everyone—not only offenders and certainly not only the particular individual who offended against us on this occasion— will be conditioned by a vision of the world as we imagine God would want it. In this situation the goal of imitating God will motivate us to make ourselves conduits for God’s action in the world, which almost certainly will entail emphasizing some ideals for our conduct that may be more aspirational than pragmatic. Framed in this way, our forgiveness will depend on placing our interaction with this particular offender in the context of our relationship with God and our desire to reshape the world in God’s image. Each of these four “reframings” focuses us on different aspects of the same situation by placing it in ever-broader contexts. It is much like a lens that can be adjusted from telephoto to wide-angle, and so can take in the same scene by focusing on everything from a single petal of a single flower up to the entire landscape of which this flower is but the tiniest part. No one of these shots is “truer” than any other; all capture accurately what the shutter lets in. And the same is true, I think, for the ways in which we frame any offender’s behavior. We think about the problem of forgive- ness differently depending on the way we frame the situation in which it arises. But to note this broad range of possibilities within Jewish tradition is not, of course, to suggest that the choice among them is arbitrary or inconsequential. Quite the contrary. How we choose to frame the offender’s behavior is of the utmost consequence, and not only because it will determine in large part our immediate response—whether we demand that the moral debt be “repaid” or whether we “pass over the transgres- sion.” For as we have seen, the choice to forgive or not is correlated with our attitudes to justice and mercy. In the final analysis, I think, it turns Balancing Justice and Mercy 449 on the question of how we think about the very nature and purpose of the moral life. It is to these questions that I wish to turn now in the final section of this paper. 5. Justice and Mercy: Reconsidering the Place of Forgiveness in Judaism Let me return for a moment to the definition of forgiveness I offered at the outset of this discussion. I suggested that forgiveness is a moral gesture offered by the offended party to the offending party as a way of restoring that person’s moral standing, which entails adjusting one’s feelings about and behavior toward that person in ways that minimize (and sometimes entirely negate) the ongoing effects of the person’s past offense. We have now seen that Judaism endorses two fundamentally different ways of thinking about when forgiveness is called for, and that behind these alternative views lie a host of other beliefs and values about the offender, the social order, our susceptibility to moral mistakes, and our relationship to God, among others. Depending on how we frame the offender’s behavior, one or more of these considerations will come into play. Judaism can accommodate more than one way of understanding forgiveness because it makes room for more than one way of framing our response to the offender’s behavior. But it is worth highlighting that both views of forgiveness have at least this much in common: both constitute responses to the transgres- sion, both involve “restoring the moral standing of the offender.” From the perspective of those who view the obligation to forgive as conditional, the offender must first engage in repentance as a condition of his or her rehabilitation. The primary work of restoring one’s moral standing, then, lies with the offender; once he or she has repented, we restore their moral standing, saying in effect, “we relinquish our condemnation of you for your past behavior in consideration of your subsequent (repentant) behavior.” By contrast, unconditional forgiveness meets the offender more than halfway. It represents an offer to restore the moral standing of the offender as a gift, whether as a show of solidarity (“we are all morally broken”) or as an effort to emulate God’s boundless love (“I will treat you compassionately just as God treats all of us compassionately”). By responding to the offender’s moral failure with an excess of moral generosity, this act of forgiveness invites the offender into a different moral realm. It communicates a powerful message to the offender: “Your moral failings notwithstanding, we affirm your moral worth. We will negate the ongoing effects of your past behavior for you, thereby giving you a clean slate and a chance to begin anew.” The key point is that both types of forgiveness transform offenders, the first by “holding their feet to the fire,” so to speak, and the second by lifting them out of the moral 450 Journal of Religious Ethics pit into which they have fallen when they cannot (or will not) climb out on their own power.20 This way of thinking about unconditional forgiveness is powerfully captured in a famous teaching of the Hasidic rabbi, Nahman of Bratslav, who wrote, “Know that you must judge everyone with an eye to their merits. Even regarding those who are completely wicked, one must search and find some small way in which they are not wicked and with respect to this bit of goodness, judge them with an eye to their merits. In this way, one truly elevates their merit and thereby encourages them to repent” (Likutei Moharan, 282). The power of unconditional forgiveness is pre- cisely that the recipient of this gift may come to see him or herself in a new light. Having been restored to their prior moral standing unilaterally, they may be motivated to do the work of turning their lives around, whether out of a sense of gratitude or simply because a way forward has been opened for them.21 This way of explaining the difference between the two Jewish views of forgiveness returns us to what I think is really at the root of this dispute, namely, the relationship between justice and mercy. On the view of forgiveness as conditional, justice is primary. Offenders must be made to pay their moral debts, both because the offended party is entitled to some “compensation,” and because the social order depends on condemn- ing moral transgressions. On the view of forgiveness as unconditional, mercy is primary. Since our duty is always to channel God’s goodness and bring it more fully into the world, we have no choice but to reach out to the offender with compassion. The focus here is not on what the offender has earned, but rather on what all of us need in order to survive in a world where we inevitably both hurt others and are hurt by them.22 20 I recognize that this might not be the intention in every case where unconditional forgiveness is practiced, but I suggest that it is the effect of doing so, at least insofar as the offender is made aware that he or she has been forgiven. 21 Of course, it is possible that the one who is forgiven will not respond in this way at all, but rather act as though they have been given a “get out of jail free” card and continue in their immoral ways. This is precisely the risk inherent in unconditional forgiveness. Murphy and Hampton 1988 regards forgiveness offered as a way to induce the repentance of the offender as “arrogant” (30). But, if so, then so too is the teacher who provides undeserved words of encouragement to a struggling student who might be motivated to try harder as a result. Indeed, offering forgiveness as an act of generosity in this way is precisely to use one’s own behavior as a moral model for the offender, calling forth the angels of her better self. Nonetheless, Kolnai 1973 is certainly right that this is not a necessary dimension of forgiveness. “It is possible to ‘re-accept’ somebody—the essence of forgiveness—without exculpating him and without hoping for anything like a thoroughgoing repentance on his part” (104). 22 In just this sense, unconditional forgiveness is a moral “gift” given out of a generosity of spirit or a desire to prioritize encouraging the offender’s moral rehabilitation over collecting the moral compensation that one is owed. Seen in this light, we can appreciate the Balancing Justice and Mercy 451 Both of these elements—justice and mercy—have long been highly esteemed by Jewish thinkers, and so too resolving the tension between them has remained one of the great unresolved issues in Jewish theology and ethics. Those who come down on the side of justice have emphasized that justice is one of the cornerstones of civilized society and one of God’s most precious gifts to us. The rabbis wrote: Rabban Simeon ben Gamaliel said: The world stands on three things—on truth, on justice and on peace, as it is said, “Execute truth, justice and peace within your gates” (Zechariah 8:16). These three are interlinked: When justice is done, truth is achieved, and peace is established (M. Avot 1:18), [as well as] The Holy One said to Israel: My children, as you live, I am exalted because of your intense concern for justice; “The Lord of hosts is exalted through justice.” (Is. 5:16). (Deuteronomy Rabbah 5:7) Where securing justice is our primarily religious duty, a moral commit- ment rooted in our devotion to God, offering forgiveness will forever be conditional on offenders repaying their moral debts, for what system of justice can permit offenders to go free? On the other hand, those who emphasize the pre-eminent value of mercy will note that this is identified as God’s most salient quality. This is articulated pointedly in another rabbinic teaching: Rabbi Yohanan said in the name of Rabbi Yosi: “From where do we know that God prays? As it says ‘I will bring them to my holy mountain, and I will cause them to rejoice in the house of my prayer (Isaiah 56:7). It does not say ‘house of your prayer’ but rather ‘house of my prayer.’ [The Hebrew beit tefilati, is ambiguous and could be read as either “my house of prayer” or “the house of my prayer.”] From here we see that God prays. What does He pray? Rabbi Zutra bar Tuvia said in the name of Rav: ‘May it be my will that my mercy conquer my anger, my mercy be revealed in my attributes, I treat my children with the attribute of compassion, and I go for them beyond the bounds of strict justice.’” (B. Berakhot 7a) God knows that the world cannot long endure without compassion. Where mercy trumps strict justice, unconditional forgiveness must prevail. mistake that some writers have made in suggesting that the person who fails to feel the (supposedly) natural resentment that comes with being harmed is lacking in “self-respect.” The same sort of analysis would lead one to the false conclusion that one who gives a gift to someone fails to feel the (similarly natural) attachment to one’s own possessions. But giving something away—whether one’s moral claim or one’s personal possessions—implies nothing other than putting concern for another above self-interest. For an example of this misguided analysis see Murphy and Hampton 1988, 16. While there are certainly cases, for example that of a battered wife who refuses to seek help or press charges against her abusive husband, where failure to respond retributively may indicate a lack of self-respect, plainly this is not the case in all instances where a victim fails to express resentment. 452 Journal of Religious Ethics This unresolved theological tension between God’s justice and mercy points to what I suspect is a still deeper unresolved tension in Jewish ethics. These alternative theologies of forgiveness reflect two opposing ways of understanding the purpose of our moral action, and this tension is nowhere clearer than in connection with forgiveness. For the question of forgiveness poses what is really the ultimate moral problem in that it requires us to consider what is the proper moral response to immoral behavior. One possibility is that the moral response is to “undo” the immoral behavior by reasserting the demands of conventional morality and requiring the offender to restore the world to the state it was in (as much as possible) prior to the offense. This is what we might call a “restorative” model of morality, one that sees each immoral deed as tilting the scales of the world and requiring a response that tilts them back in the opposite direction, until the world is once again in a state of moral equilibrium. On the other hand, the moral response might be to act so as to create a new moral situation, one in which the distance between the offender and the offended is overcome, in which we do not attempt to reassert the moral values on which society as we know it rests, but rather to create a new kind of society on an altogether different foundation. We might call this a “visionary” model of morality, insofar as it aims not only to transform a single offender, but to transform the world by creating a society that rests not on justice, but on mercy. Just as we treat the offender as if she were more deserving than she is, we act in the world as if it were already a place in which God’s compassion flowed freely among us.23 This, then, is finally what is at stake in the question of forgiveness: does immoral behavior require a moral response that is essentially restorative, that seeks to preserve society as it is, or does it require instead a moral response that is essentially visionary and transformative, that seeks to create a new basis for human relationships? Both views have their merits, as well as their risks. If we adopt a restorative morality, focused on the demands of justice, we risk creating a society in which people who are themselves in need of forgiveness are forever withholding it from others, or threatening to do so. In such a world we are forever keeping track of who is “up” and who is “down,” who is justified and who is not. The demands of justice, after all, are endless, uncompromising and, so to speak, “unforgiving.” But if we adopt a visionary morality, we risk creating a society in which people are no longer held accountable for their misdeeds. In such a world our reach may exceed our grasp, and instead of 23 Schwarzschild 1999 forcefully articulated this visionary thrust in Jewish ethics, which he called “messianic.” As he expressed it, “Messianism as an ethical operator simply declares that, since humanity is to strive to imitate God and thus to endeavor to become like Him, and since they are to undertake these efforts in this world, the ultimate goal of ethics is to establish what is then called ‘the (Messianic) kingdom of God’ on earth” (206). Balancing Justice and Mercy 453 attaining the lofty heights of unconditional compassion we may descend into a situation of moral chaos and unrestrained lawlessness. Neither outcome is particularly appealing, and the choice that Jewish thinkers have made at any given point in history may be a function of which risk they found most unsettling. This analysis of Judaism’s philosophy of forgiveness might well end here. For I think I have shown that there are two quite conflicting and equally compelling ways in which Jewish authorities over the centuries have addressed the question of when and why we have a moral duty to forgive others for their offenses against us. And I have argued that these divergent positions are grounded in still deeper unresolved theological and meta-ethical questions in Jewish tradition, namely, whether we emphasize the obligation to emulate God’s justice or God’s mercy, and whether we think of morality as essentially restorative or visionary. To homogenize these profound and longstanding disagreements within Jewish tradition is both to misrepresent the diversity of Jewish religious-moral thought and to understate the com- plexity of the question at hand. For if forgiveness is sometimes portrayed as the greatest of moral gestures, it is surely also one of the most problematic. I submit that the very ambivalence we find in the Jewish moral teachings presented here reflects the intractability of the problem of forgiveness. But concluding our analysis here does not quite do justice to the subtlety of rabbinic thought on this subject. For, while the rabbis were often willing to let their debates remain unresolved, they were also eager to reconcile opposing views by embracing both poles of a dialectic.24 Plainly, they were well aware that the problem of forgiveness exposed deep divisions within the tradition, too deep, perhaps, to pass over in silence. That impulse to find the middle ground between opposites finds expression in one final text that refers this debate back to the very foundations of the world. In commenting on Genesis 2:4—“The Lord God made earth and heaven”—the rabbis comment: A parable of a king who had cups made of delicate glass. The king said: If I pour hot water into them, they will [expand and] burst; if cold water, they will contract [and break]. What did he do? He mixed hot and cold water, and poured it into them, and so they remained unbroken. Likewise, the Holy One said: If I create the world with the attribute of mercy alone, its sins will be too many; if with justice alone, how could the world be expected to endure? So I will create it with both justice and mercy, and may it endure! (Genesis Rabbah 12:15)25 24 Most famously, in their claim that the (diametrically opposed) views of Hillel and Shammai were both “the words of the living God” (B. Eruvin 13b). 25 Modern biblical scholars have long recognized that Genesis 2:4 links two separate creation narratives. The first, ending with 2:4a, uses “God” (Heb. elohim); the second, beginning with 2:4b, uses “The Lord” (Heb. adonai). Long before the advent of modern biblical criticism, Jewish tradition recognized that these two names for God were associated 454 Journal of Religious Ethics Justice and mercy—both are necessary to sustain the world, but either alone threatens to destroy it. Both the restorative and the visionary responses to immoral behavior are necessary; neither alone is sufficient. So the conflict between the conditional and unconditional views of forgiveness cannot be resolved arbitrarily in favor of one position or the other. Indeed, the rabbis point might well be that each understanding of forgiveness has its place and taken together they hold one another in balance. For they recognized that the moral world we inhabit, like a delicate cup, is ever so fragile; indeed, God created it this way. And so we find ourselves in a world where both justice and mercy are needed in equal measure, and so where forgiveness para- doxically must be both conditional and unconditional.26 REFERENCES Borris-Dunchunstang, Eileen R. 2007 Finding Forgiveness: A 7-Step Program for Letting Go of Anger and Bitterness. New York: McGraw-Hill. Braude, William G. and Israel J. Kapstein, trans. 1981 Tanna Debe Eliyyahu. Philadelphia, Penn.: Jewish Publication Society. Couenhoven, Jesse 2010 “Forgiveness and Restoration: A Theological Exploration.” Journal of Religion 90.2 (April): 148–70. Dorff, Elliot N. 2003 Love Your Neighbor and Yourself. Philadelphia, Penn.: Jewish Publication Society. Enright, Robert D., Suzanne Freedman, and Julio Rique 1998 “The Psychology of Interpersonal Forgiveness.” See Enright and North 1998, 46–62. Enright, Robert D. and Joanna North, eds. 1998 Exploring Forgiveness. Madison, Wisc.: University of Wisconsin Press. Friedman, Philip H. 2009 The Forgiveness Solution: The Whole-Body Rx for Finding True Happiness, Abundant Love, and Inner Peace. San Francisco: Red Wheel/Weiser. with the qualities of justice and mercy respectively. So this verse serves as a particularly apt prompt for the rabbis’ reflection on the necessity of both qualities. I am grateful to Jonathan Crane for calling my attention to this. 26 The foregoing analysis of forgiveness in Judaism should be taken as a corrective to my earlier and less extensive analysis of sources on this question in Newman 1987. I am indebted to Jesse Couenhoven and all the other participants in the conference he organized at Villanova University on “Possibilities of Forgiveness,” Feb. 20–21, 2012, for their insights and their responses to an earlier version of this paper. I have also benefitted from the helpful comments of Jonathan Crane and Geoffrey Claussen and from extended discussion of these issues with my wife, Rabbi Amy Eilberg. Balancing Justice and Mercy 455 Grovier, Trudy 2002 Forgiveness and Revenge. London: Routledge. Haber, Joran Graf 1991 Forgiveness. Savage, Md.: Rowman & Littlefield Publishers. Kolnai, Aurel 1973 “Forgiveness.” Proceedings of the Aristotelian Society, New Series 74: 91–106. Luskin, Fred 2002 Forgive For Good. New York: Harper Collins. Maimonides, Moses 1972 A Maimonides Reader. Edited by Isadore Twersky. New York: Behrman House. Murphy, Jeffrie G. 2003 Getting Even: Forgiveness and Its Limits. New York: Oxford Univer- sity Press. Murphy, Jeffrie G. and Jean Hampton 1988 Forgiveness and Mercy. New York: Cambridge University Press. Newman, Louis E. 1987 “The Quality of Mercy: On the Duty to Forgive in Judaic Tradition,” Journal of Religious Ethics 15.2 (Fall): 155–72. 1998 Past Imperatives: Studies in the History and Theory of Jewish Ethics. Albany, N.Y.: State University of New York Press. North, Joanna 1998 “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration.” See Enright and North 1998, 15–34. Rabbinical Assembly 2010 Mahzor Lev Shalem. New York: The Rabbinical Assembly. Roberts, Robert C. 1995 “Forgivingness.” American Philosophical Quarterly 32.4 (October): 289–306. Sacks, Rabbi Sir Jonathan 2009 The Koren Siddur. Jerusalem: Koren Publishers. Schimmel, Solomon 2002 Wounds Not Healed By Time. New York: Oxford University Press. Schwarzschild, Steven 1999 “On Jewish Eschatology,” In Contemporary Jewish Theology, edited by Elliot N. Dorff and Louis E. Newman, 199–220. New York: Oxford University Press. Statman, Daniel 2012 “A Few Comments on Forgiveness in Jewish Tradition” (Hebrew). In Al Da-at Ha-kahal: Dat V’politika B’hagut Ha-yahadut [With the Permission of the Congregation: Religion and Politics in Jewish Thought]: Festschrift in Honor of Aviezer Ravitzky, edited by Ben- jamin Brown, Menachem Lorberbaum, Avinoam Rosenak and Yedidia Stern, 123–56. Jerusalem: Institute for Israeli Democracy. Telushkin, Joseph 2006 A Code of Jewish Ethics. New York: Bell Tower. 456 Journal of Religious Ethics 
work_66v7c6pa3jbldnbxyvtrywcxfe	----	Restorative Justice in Uruguay: A Change of Lenses in a Reform of Criminal Justice? Vol.:(0123456789) European Journal for Security Research (2019) 4:131–147 https://doi.org/10.1007/s41125-018-0036-x 1 3 O R I G I N A L A R T I C L E Restorative Justice in Uruguay: A Change of Lenses in a Reform of Criminal Justice? Pablo Galain Palermo1 · Federico del Castillo2 · Ricardo Fraiman3 Received: 19 June 2018 / Accepted: 17 October 2018 / Published online: 28 October 2018 © The Author(s) 2018 Abstract In recent decades, several countries have adopted restorative justice as a means of conflict resolution. While this tradition has deep roots in English-speaking and European countries, the use of restorative justice has been limited in Latin America. In an innovative effort, the Uruguayan Ministry of the Interior developed a restora- tive justice program as part of a comprehensive reform of the criminal justice sys- tem that entailed significant transformations, mainly in the legal system (from an inquisitorial to an adversarial one) and the Uruguayan National Police Force. This article examines this restorative justice initiative in detail, describing the context of its implementation, its implications for the reform of the criminal justice system, its preliminary results and future challenges that lie ahead. Keywords Restorative justice · Criminal procedure · Criminal justice reform · Police 1 Introduction The state has a monopoly over criminal justice, and it performs the role of social control through punishment (retribution) with preventive goals (deterrence) (Albre- cht 2016). Within the continental system—of which the Uruguayan criminal jus- tice system is a party to—deterrence may be either general or specific and is always intended to prevent future crimes against legally protected interests. Specific deter- rence may be positive when its goal is to achieve the re-socialization of the offender or negative when the offender is understood to be dangerous and needs to be sepa- rated from the rest of society. When general deterrence is positive, it reaffirms the value of obeying the norms versus the risk of being subject to punishment, implicit * Pablo Galain Palermo p.galain@mpicc.de 1 Max Planck Institute for International and Foreign Criminal Law, Freiburg, Germany 2 City University of New York, New York City, USA 3 Ministry of the Interior, Montevideo, Uruguay http://crossmark.crossref.org/dialog/?doi=10.1007/s41125-018-0036-x&domain=pdf 132 P. Galain Palermo et al. 1 3 in the act of offending. When negative, it works by intimidating the population through the fear of being arrested, prosecuted and/or convicted (Hassemer 1998, 2002; Streng 1991). How these preventive goals can be achieved through criminal law remains an unresolved issue for criminologists (Albrecht 2001). Any criminal sentence entails a significant imposition on the rights of the accused (Hörnle 2017). Such rationality is tutelary, abstract and retributive and legitimizes the power of the state against those who attempt to break the law since it averts any possible rational dialogue to reach an agreement on conflict resolution (Luhmann 2005). Moreover, it emphasizes punishment, ignoring the will and needs of those affected by a crime (both offenders and victims) and blurring the goal of social paci- fication implicit in the law (Galain Palermo 2016a). Finally, it deliberately ignores academic critiques regarding the negative effects of retribution on rehabilitation and dismisses diverse processes (Galain Palermo 2010) and other means of conflict resolution such as mediation, compensation or reparation (Kerner 1983; Seelmann 2017). A relatively new approach to justice, developed over the last four decades, chal- lenges such a rationale. It is restorative justice, which focuses on the wishes and needs of those involved in a conflict. This movement puts forward new questions. Instead of asking “who committed an offense?”, what really matters is who was harmed, how they were harmed and what were the consequences. Restorative jus- tice seeks to understand how to solve the conflict, and how victims and offenders can jointly bring the conflict to an end (Zehr 2004). A critical issue is whether this new approach can complement the current juridical practices of criminal law, or if it demands a drastic paradigm shift (to paraphrase Zehr 2004) a “change of lenses” for the whole criminal justice system. Moreover, if such a change were to take place, what would this really mean and what transformations would it entail? This article aims to shed light on these questions by examining a restorative jus- tice program implemented by the Uruguayan Ministry of the Interior in the context of a comprehensive reform of the criminal justice system. The article starts by dis- cussing the conceptual implications of restorative justice. Then, it describes the con- text of implementation, examining victimization and fear of crime data in Uruguay, as well as the juridical context in which the program is taking place. The program is then described in detail, with a focus on the actions undertaken and the preliminary results, as well as its connection to the reform of Uruguay’s Code of Criminal Proce- dure. Finally, the article discusses the potential outcomes of this program within the context of the new code, and it outlines some questions to guide future examinations of Uruguay’s experience of restorative justice. 2 What is Restorative Justice? Restorative justice is not a contemporary practice, but a revival of traditional conflict resolution practices, characterized by being local, close to people and more effective than mainstream methods when it comes to dealing with the interpersonal relation- ships behind crimes (Jaamdar 2017). The roots of the contemporary restorative jus- tice movement can be found in pre-industrial societies. Oriental philosophies such as 133 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… the Vedas, Buddhism, Taoism and Confucianism, ancient Western civilizations like Greece and Rome and the indigenous peoples of Oceania, all resorted to restorative practices to avoid retaliation between individuals, families and tribes (Braithwaite 2002; Gavrielides 2011; Huxley 1939; Albrecht et  al. 2006; Sherman and Strang 2010). For example, countries with ancient cultural roots such as India consider restorative justice as “justice that heals” (Raina and Kumar 2017). The very idea of restorative justice embraces values such as healing, compassion, mercy, mediation, forgiveness, reconciliation and sanctions (Consedine 1995). In spite of its ancient roots, the concept of restorative justice is still subject to debate in the modern world, and it is hard to find a universal definition that encompasses all the perspectives cov- ered by this concept. However, the definition proposed by Marshall (1996) is widely accepted in the specialized literature: Restorative justice is a process whereby all the parties with a stake in a par- ticular offence come together to resolve collectively how to deal with the after- math of the offence and its implications for the future (Marshall 1996: 37). Zehr (2004) proposes an alternative definition emphasizing the purpose of the method of healing: Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense to collectively identify and address harms, needs and obligations in order to heal and put things as right as possible (Zehr 2004: 37) Others emphasize the process of restoration, defining restorative justice: …as a process where those primarily affected by an incident of wrong-doing come together to share their feelings, describe how they were affected and develop a plan to repair the harm done or prevent reoccurrence (McCold and Watchel 2002: 113). The inclusive spirit of these—and other—definitions results in differential appli- cations. In spite of these differences, it could be said that modern restorative justice is an approach to the affairs of criminal law that focuses its efforts on repairing the harm caused by criminal activity without blurring the lines between criminal and civil law (Hirsch 1969, 1990). It has been calculated that restorative practices are currently implemented in approximately 100 countries, with almost 23 different types of prison-based restora- tive programs in 84 countries, and over 300 victim-offender mediation programs in the USA alone, with a further 700 plus in Europe (Gavrielides 2015). Most of these programs are linked to the assumption that punishment is a chronic problem and recognize the failure of detention and incarceration practices as standard forms of punishment (Kenny and Leonard 2014). In contrast to the standard criminal justice system based on the principle of retribution, restorative justice follows methodical steps to repair the harm done to the victim. The outcome is an agreement freely entered into by the parties that repairs the harm caused (Galain Palermo 2010, 2016a). According to this rationale, imprisonment and other sentences (house arrest, 134 P. Galain Palermo et al. 1 3 probation and alternative sentences) are not necessarily suitable for the preven- tion of recidivism and making reparations to victims, since they are not allowed to participate in the sentencing process. Its advocates argue that the mainstream view in the criminal justice system of victims and offenders is mistaken: it is not about enemies or people with different motivations, interests and stakeholdings, but about people who may work together to deal better with the aftermath of harm. In fact, it is argued that this mainstream assumption can even promote a desire for retaliation from the victim and society toward the offender, ignoring the fact that many offend- ers see themselves as victims (Sherman and Strang 2007). Restorative justice places victims at the core of the justice process. Such an idea does not require an entirely different criminal justice system, but a reform that includes restorative agreements pursuant to the “material truth,” as sought by the investigative process, plus a “consensual truth” between the parties. This implies the inclusion of alternative solutions and mechanisms that strive for social harmony, going one step further than material truth in seeking reconciliation and pacification (consensual truth). Although all this may sound strange regarding regular crimes, it has been gaining acceptance in the area of transitional justice, where restorative approaches are better suited to offering adequate mechanisms for reconciliation (Knust 2013; Baumann 2012; Galain Palermo 2016b; Fischer and Simić 2016). In this sense, truth commissions and similar political mechanisms of truth-seeking and reconciliation are more suitable than the traditional criminal justice system in deal- ing with transitional justice processes, since “reparations should be linked to the process of truth recovery” (Maepa 2005: 75). It is important to note, however, that restorative justice is not the only mechanism available to impose proportionate pun- ishment for such a class of serious crimes (Olásolo and Galain 2018). In practice, restorative justice is used to deal with minor and mid-level offenses. However, in order to achieve restorative goals, these mechanisms should go beyond minor crimes, juvenile and first-time offenders, “with the aim of providing restora- tive outcomes to a maximum number of crimes in a maximum number of possi- ble situations and contexts, including those whose voluntary agreements are not possible and coercion is needed” (Walgrave 2001: 34). There are no philosophi- cal obstacles to restorative justice being used for more serious crimes and felonies, such as homicide, rape, domestic violence or even human rights violations. But for that to happen, a change of lenses is required in criminal law, to no longer focus just on making offenders responsible but rather on having them taking responsibil- ity for what they have done. Unlike the notion of accountability embedded in the mainstream criminal justice system, restorative justice is based on the willingness to accept responsibility (Foley 2014). Therefore, until such a change arises, the exten- sion of restorative mechanisms is unlikely. A key actor embedded in the restorative process is the community. Any restora- tive approach needs to re-involve the community in the conflict resolution process since conflicts that once belonged to it were “stolen” by public officers (Christie 1977). The role of the community is, however, controversial. While some argue that communities and offenders share responsibility for the loss caused by the crime committed in the first place, others point to community members as “indirect vic- tims” of the crime. But which community members can participate in restorative 135 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… practices? Any individual interested in contributing to fulfilling the restorative prac- tice by supporting either the offender or the victim. While preparing a restorative intervention, “facilitators need to identify the most appropriate ‘community’ to include” (Cunneen and Hoyle 2010: 17). In any circumstances, the whole commu- nity has to contribute to the reintegration of the offender. Even police officers can participate in a restorative intervention as community members. In summary, restorative justice can and should be included in the framework of the mainstream criminal justice system. However, more empirical research is required in order to determine what restorative justice is. Such research will facili- tate comparisons with mainstream mechanisms of conflict resolution to determine which one achieves better outcomes. 3 Background Uruguay has traditionally been one of the safest countries in Latin America, regis- tering crime rates significantly lower than its counterparts on the continent. Still, a consistent increase in major crimes over the last thirty years, tied to a growing public concern about crime and violence, forced the country to engage in a com- prehensive reform of its criminal justice system. Some of these changes involved restorative justice as a means to avoid incarceration in the context of the reform of Uruguay’s Code of Criminal Procedure. Before examining this reform in detail, it is worth providing some context on recent national crime trends. Recent available data show that Uruguay has a moderate victimization rate com- pared to 18 Latin American countries. Despite a recent increase in this indicator, Uruguay has traditionally registered low levels of victimization (Lagos and Dam- mert 2012). However, in contrast to this, when fear of crime is examined, the coun- try shows a disproportionate public concern considering its moderate victimization rate. Eighteen percent of Uruguayans fear becoming victims of crime, a figure sig- nificantly higher than in Venezuela, Mexico, Argentina or the Dominican Republic, all countries with some of the highest crime rates on the continent (Corporación Latinobarometro 2016). Such incongruence is not surprising. Crime trends have been rising in Uruguay for over four decades. For example, when police data for homicide, robbery and theft crime trends are examined—the three main crime categories in Uruguay—the problem is clearly visible. Although 2016 showed a slight decline in homicide and robbery, all three types of crime show consistent growth in recent years (Ministerio del Interior 2016). While police data have inherent limitations such as under repre- sentation or misreporting, it helps to illustrate the failure of the Uruguayan criminal justice system to properly address crime problems, as well as the consolidation of crime as one of the main problems the country faces (Fig. 1). When crime has a social background, criminal policy must be inclusive. In coun- tries like Uruguay, where there is a marked contrast between victimization and fear of crime, community involvement in conflict resolution prevents potential retaliation and fear of crime from growing, enhancing the positive public perception regard- ing the intervention of the justice system. This, however, does not exactly apply to 136 P. Galain Palermo et al. 1 3 Uruguay, where a lack of trust in law enforcement and justice cannot be explained by high corruption indices, since the country has the lowest rate of corruption in the region. According to the International Corruption Perceptions Index, Uruguay is ranked 23rd in the world as the least corrupt country in Latin America (Transpar- ency 2017). Another significant problem in Uruguay is its disproportionately high rate of incarceration. With a rate of 321 per 100,000 and 11,149 people behind bars in 2017, Uruguay has the highest incarceration rate in South America (World Prison Brief 2017). With deprivation of liberty being the most common punishment, Uru- guayan prisons are suffering from overcrowding and violence (Fig. 2). In a scenario like this, fear becomes the defining feature of a normative system that violates human rights and the fundamental guarantees of its citizens. Public fear of the criminal justice system and its operators must be turned into trust (Baker et  al. 2000), a goal that can only be achieved through a system based on dialogue, free will, reparation, reintegration, participation, inclusion and reconciliation (Jiang 2016). All these principles need to be translated into the justice system and its pro- cedures. This will not be an easy task and requires a change of lenses through which the world is viewed by its citizens, who must leave state paternalism behind and adopt responsible post-crime conduct toward both criminals and victims (Galain Palermo 2010). Change must also take place in the “mind” of the administrators of justice, but this will most likely arise as a consequence of the first one (Fig. 3). There is another factor which could contribute to re-signifying and dignify- ing the relationship between state and citizens. It relates to the first two (and only) 214 218 231 197 200 190 202 194 221 226 205 199 267 260 268 293 265 0 50 100 150 200 250 300 350 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Re po rt s Year Homicide 2000-2016 Fig. 1 Homicide 2000–2016. Source: Ministry of the Interior of Uruguay 137 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… 6751 6147 8483 6933 7000 8352 8867 9173 10705 11391 13829 15003 15414 16718 20114 21135 20348 0 5000 10000 15000 20000 25000 20002001200220032004200520062007200820092010201120122013201420152016 Re po rt s Year Robbery 2000-2016 Fig. 2 Robbery 2000–2016. Source: Ministry of the Interior of Uruguay 60608 68833 76108 89853 98409 104902 101985 99842 105629 94508 95269 97573 96827 97465 105892 109139 114129 0 20000 40000 60000 80000 100000 120000 20002001200220032004200520062007200820092010201120122013201420152016 Re po rt Year The� 2000-2016 Fig. 3 Theft 2000–2016. Source: Ministry of the Interior of Uruguay 138 P. Galain Palermo et al. 1 3 condemnatory sentences of the Inter-American Court of Human Rights in 20111 and the “amicable agreement” between Uruguay and the Inter-American Commission on Human Rights in 2009, by which a reform of the Uruguayan Code of Criminal Pro- cedure was agreed upon.2 This raised awareness among Uruguayan citizens about their capacity to seek recourse in international human rights courts to act against the state when it—either through action or omission—violates fundamental norms aimed at their protection (Galain Palermo 2013). Such awareness could favorably influence both public authorities and citizens to take the next step and pursue more human, less violent and more participative ways of conflict resolution in an inclusive and restorative framework of human relationships (Table 1). But this is not the only conceptual challenge to restorative justice becom- ing a new science (social, legal), as there are wide ranging and disparate views and arguments on the subject which vary according to one’s philosophical van- tage point such as abolitionism, Christian philosophy, the restorative movement and economic neoliberalism applied to penal theory (Reggio 2010). This topic leads us to the question as to whether we need police officers, prosecutors and judges acting as guarantors, or rather, a community justice system that requires Table 1 Victimization rate per country 2016 (Latin America). Source: Corporación Latinobarómetro (2016) Country Victimiza- tion rate (%) Venezuela 48 Mexico 46 Argentina 41 Dominican Republic 41 Peru 39 Honduras 38 Brazil 37 Chile 37 Guatemala 36 Paraguay 35 Uruguay 35 Costa Rica 35 Colombia 34 Panama 32 El Salvador 31 Nicaragua 31 Bolivia 30 Ecuador 29 1 Case Gelman v Uruguay and case Barbani Duarte and others v Uruguay. 2 Case Jorge, José and Dante Peirano Baso v Uruguay. Resolution 86/09, Inter-American Commission on Human Rights. 139 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… neighbors, social referents, psychologists or social workers acting as mediators. As can be seen, it is not just a question of substituting the binomial crime sanc- tion for conflict reparation, but also of fundamental questions that facilitate such a conceptual evolution within a juridical framework. This ensures the voluntary participation of the parties in conflict resolutions as well as the constitutional premises of equality and legality. Due process is not just concerned with dealing with the asymmetry between the parties in conflict resolution processes but also assigns universal validity to the agreements reached. This means that they have a similar recognition and weight as any other judgement of the courts and are considered to have the force of res judicata. Otherwise, those who claim that we would be faced with an inter-partes proceeding, which could not take the place of penal resolutions would be right (Galain Palermo 2010). In order to address some of the issues just described, the Ministry of the Inte- rior of Uruguay, the government agency responsible for the oversight of the Uru- guayan National Police Force (UNP), launched a pilot restorative justice program aimed at mitigating neighborhood conflicts and their consequences (del Castillo et  al. 2015). This endeavor, which started in 2013, was framed within an ambi- tious reform of both the UNP, and Uruguay’s Code of Criminal Procedure. This has resulted in the institutionalization of restorative justice within the criminal justice system of Uruguay. The actions undertaken are outlined in the following section (Table 2). Table 2 Fear of crime per country 2016 (Latin America). Source: Corporación Latinobarómetro (2016) Country Fear of crime (%) Guatemala 26 Nicaragua 19 Uruguay 18 Colombia 17 Panama 17 Honduras 14 Costa Rica 14 El Salvador 14 Dominican Republic 14 Argentina 9 Chile 8 Mexico 8 Bolivia 8 Brazil 8 Venezuela 8 Ecuador 7 Peru 6 Paraguay 6 140 P. Galain Palermo et al. 1 3 4 Restorative Justice in Uruguay The UNP’s experience of restorative justice dates back to 2013, when the Min- istry of the Interior drafted a pilot restorative justice program to be developed in three police precincts in Montevideo: precincts 15th, 19th and 25th. (Precinct 17th was added to these in 2017.) In general terms, the objectives of this pro- gram were to consolidate an institutional methodology for the peaceful resolution of social conflicts in Uruguay and to restore the social relationships broken by crimes; in other words, to repair the harm caused to victims of conflicts and vio- lence. To achieve such goals, a series of actions were undertaken. First of all, starting in 2013, dozens of police officers enrolled in a restora- tive justice-training program delivered by a team of professors from the Univer- sity of Cambridge. As a result, 36 officers from Uruguay’s police were qualified to develop restorative justice conferences in the country. Unlike other restorative justice programs, conferences are led by police officers acting as facilitators. At the same time, complimentary workshops and events around this initiative were conducted with agents of Uruguay’s criminal justice system (judges, prosecutors, public defenders and police officers) to raise awareness about it. Prior to police officers addressing restorative justice cases, a process of dia- logue between the Ministry of the Interior and the Judiciary began in 2014 aimed at building a consensus and adequately implementing restorative justice in com- pliance with Uruguay’s legal framework. This dialogue resulted in a memoran- dum of agreement that enabled the Ministry to work with extra-judicial cases, meaning those cases reported to the police and dismissed by the Judiciary. Fol- lowing this agreement, in 2015 the Ministry of the Interior started working with extra-judicial cases in the 15th, 19th and 25th precincts of Montevideo. While the number of cases was low at the beginning, this helped to progressively build pro- ficiency among restorative justice practitioners. This experience took place prior to the enactment of a new code of criminal procedure in Uruguay, aimed at addressing problems and inefficiencies associ- ated with the inquisitorial system. The timely discussion on the new code offered a good opportunity to consolidate restorative justice in Uruguay as a means of diverting cases from sentencing, and therefore institutionalizing and raising the status of the agreement between the Ministry of the Interior and the Judiciary at the level of the Code of Criminal Procedure. Some of the implications of this sce- nario are discussed below. 5 Restorative Justice in the New Uruguayan Criminal Procedure Code The Uruguayan Parliament enacted a new criminal procedure system (Law 19,293 of 2014) which came into force in late 2017, as a consequence of the previously cited amicable agreement between Uruguay and the Inter-American Commis- sion on Human Rights. This agreement helped (at least normatively) leave behind 141 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… the inquisitorial system of a single judge, who leads the entire investigation and sentencing, put in place during the last civil–military dictatorship (1973–1985). This system was replaced by an accusatorial, adversarial, oral public system, in compliance with the judicial standards of the American Convention on Human Rights. Among the main reforms, the new system introduced was that preven- tive detention was no longer considered as an advance punishment and procedural rule, becoming instead a protective measure, the use of which must be justified by procedural matters. Perceptive preventive detention after the commission of a second crime was also repealed. At the same time, the victim now participates in the mainstream criminal procedure system, as well as in the newly enacted alter- native procedures. The new code was modified in 2016 by adding an extension to the principle of opportunity to include alternative methods of conflict resolution (articles 382–401) as well as the abbreviated criminal trial (article 272). Not only does the new reform recognize the rights of the victim regarding the gathering of incriminatory evidence by the Public Ministry (articles 79–81), but also achieves reparatory agreements with the author of the crime through the use of penal or extra-judicial mediation. The chapter “Alternative Methods of Conflict Resolution” (Arts. 382 ff), instead of a criminal investigation by the public ministry, provides for the diversion of the case into a mediation process that facilitates an encounter between the victim and the offender aimed at reaching agreement on reparatory measures. The reparations to the victim could also lead to the so-called conditional suspension of the process, whereby the prosecutor can suspend an ongoing investigation through an agreement with the perpetrator of a crime. These procedural figures build on the voluntary admission of responsibility by the author and are applied only if there is no public interest in a criminal prosecution and the crimes are not of a grievous nature (arti- cles 383 and 393). Thus, two principles justify the extension of the discretionary principle: lack of public interest in prosecutions and the crime being a relatively less serious one. These principles, which lead to a withdrawal of penal action, cannot be solely deter- mined by legislators, but must instead be defined on a case-by-case basis. In order to resort to the discretionary principle, an agreement on the conditions and obligations regarding the reparations for the harm caused must be made between the parties. It must be acknowledged that sometimes the diversion into these alternative meas- ures makes the complete clarification of the case impossible, which is a goal of the principle of legality itself and not a goal of the discretionary principle. This aims to fulfill a procedural function of celerity and efficiency based on selection instead of the material function of truth-seeking. The penal process is itself a burden that the accused must bear (whether innocent or guilty) so that the lack of interest in pros- ecution and the crime not being grievous in nature enable the justice administration to disregard a process that is expensive in terms of freedom, and unlikely to reveal the material truth, opting instead for the consensual truth. Criminal procedure reform always leaves the door open to the possibility of start- ing a trial in the standard way when no agreement has been reached regarding the alternatives, or when such an agreement has not been honored. In such case, either a new criminal trial starts, or the suspended one is revived. Depending on the nature 142 P. Galain Palermo et al. 1 3 of the crime, when clarification of the case is required, criminal procedure should take precedence as the general interest is served by prosecution. The conditional suspension of the process—an agreement between the prosecutor and the defendant takes place somewhere between the process being formalized, the pressing of charges or the dismissal of the case—shall not proceed when the mini- mum sentence for the crime is in excess of 3 years in prison; when the defendant is already serving a sentence; and when the accused is facing another process involv- ing conditional suspension (article 384). This feature is not an example of restorative justice but rather of negotiations between the parties that do not necessarily include the victim (although the possibility of mediation between the author of a crime and its victim is provided for in article 386c) as one of the conditions or obligations that could be agreed upon. However, the reparatory agreement provided for in articles 393 onward could be considered as an instrument that is closer to restorative justice since from the moment of the formalization of the investigation, and throughout the process, both defendant and victim could subscribe to a material or symbolic reparatory agreement that will be made available to the judge for his consideration, with the intervention of the public ministry. It is worth mentioning that these agreements are only possi- ble for less serious offenses, non-intentional crimes, those subject to fines, assault— with the exception of aggravated assault—property crimes, indictable crimes at the request of the victim—with the exception of sex crimes—and crimes against honor. 6 Implementation and Preliminary Results Through the reparatory agreements introduced in the new Code of Criminal Pro- cedure, restorative justice acquired a formal status in Uruguay, something that pos- itively impacted the pilot program launched by the Ministry. What initially func- tioned as a means of addressing cases dismissed by the Judiciary has now acquired legal status as an alternative method of conflict resolution. This has led to the con- solidation of restorative justice within Uruguay’s criminal justice system, and con- sequently a significant increase in the program’s caseload. Nevertheless, considering the small number of cases diverted to mediation in the juvenile criminal system—a mechanism that has been available for more than two decades—we must note the difference between laws on the books and laws in action. A relevant question for future research is that of why, even when conciliation mechanisms for the resolution of social conflict have been established since Uruguay’s first Constitution (1830, Art. 107), it has seldom been used in the country. While such a question is beyond the scope of this article, it is important to raise it in order to point out how long it usually takes for these types of initiatives to achieve full implementation in Uruguay. The mechanisms outlined over the following paragraphs describe the program’s implementation in the context of the inquisitorial criminal procedure code that was in force until late 2017. While the program now operates in the same fashion, some things have changed. For example, prosecutors have replaced judges, and commu- nication between facilitators and judicial operators has improved. Nevertheless, the mechanisms are, in general, very similar to each other. 143 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… In practice, the program operates as follows. Facilitators start by looking at all incident reports received by the police using the information management software of the UNP. The search is conducted on a monthly basis for extra-judicial cases reg- istered during the previous month at the precincts in which the program operates (15th, 17th, 19th and 25th). Cases are filtered according to their “judicial resolu- tion,” meaning whether a judge (now a prosecutor) has made a ruling on it. A set of “potential cases” results from this filtering, which are cases where a judicial decision has been made. These are filtered again to discard cases that: (a) involve sentenced people; (b) police officers or minors are involved in; (c) involve domestic violence; (d) there is no apparent harm involved; (d) do not include any means of contacting the parties involved. Following this selection, a set of “feasible cases” is obtained. These filters are not arbitrarily applied but follow the memorandum of agreement with the Judiciary, and the recommendations of international experts and advisers who advise on the program’s implementation. Later on, feasible cases are filtered to determine which of them fulfill the neces- sary requirements to conduct a conference (for example, if both parties can be con- tacted). A list of “workable” cases is then obtained. Facilitators contact the offender first. If he or she agrees to participate in the conference, then facilitators contact the victim. If both parties are willing to move forward, a preparatory interview is coordinated separately with each of them. During this interview, facilitators explain the conference in detail to participants, learn about the conflict and make sure their interest in participating in the conference is entirely voluntary. If both offender and victim confirm their voluntary interest in participating, a conference is then scheduled. The conference takes place in a neutral room, properly conditioned to develop a conference (sober decoration, chairs arranged in a circular fashion, water dispenser and disposable tissues available, etc.). The conference is not limited to those directly involved in the incident. If there is a consensus between victim and offender, each party is allowed to invite others to the conference. They may be people indirectly involved in the incident, relatives, friends or neighbors, whom participants believe could either add relevant information or provide support to them over the course of the conference. The conference is facilitated by one leading facilitator supported by one assistant facilitator, and it ends with the celebration of a signed agreement drawn up and agreed to by the participants. Both parties commit themselves to fulfilling the agreement over a period of time determined on a case-by-case basis. After the conference, facilitators engage in follow-up actions in the next 15, 30 and 90 days after the agreement was signed or determine whether it is being fulfilled or not. Data from April 2015 to June 2017, made available by the Ministry shows that facilitators found 466 feasible cases, 51 of which led to a conference (Firpo 2017). This is an effectiveness ratio of approximately 1–9 cases in which a conference was held. Data for 2016 (disaggregated data was not made available for 2017) show that 25 of the 51 conferences held during that year were concluded with a successful agreement after the conference. This is the best possible scenario, where the conflict disappears after the intervention. At the same time, an agreement was signed but not fulfilled and conflict persists in 14% of cases, in 11% the agreement was signed but 144 P. Galain Palermo et al. 1 3 not fulfilled, although conflict disappeared, and in the remaining 11%, an agreement was not even reached. While these figures seem promising, it is important to state that serious flaws exist regarding the program’s data. First, data are not systemati- cally but rather arbitrarily registered following specific requests from the authorities. This hinders potential assessments of the program’s implementation and results, as data are not periodically collated and analyzed. Second, data are not disaggregated, which also makes process and outcome assessments difficult. For example, updated data on case types were not made available and only exist at a raw level. These are serious limitations to be addressed in order to determine the failure or success of the program in fulfilling its goals. However, while a systematic evaluation of the program remains to be done, pre- liminary data—although weak—seem promising. If restorative justice is contrib- uting to the mitigation and prevention of conflicts in a pilot program in the juris- dictions of four police precincts, similar results could be achieved in others. The implications of this preliminary data are discussed in the following section. 7 Discussion and Conclusions Some concluding remarks can be made on the basis of these preliminary results. First, referenced interview data for 2016 show that 25 out of 39 conferences suc- ceeded in solving the original conflict (Firpo 2017). While this number may not have a significant impact on the criminal justice system as a whole, the potential impact of this pilot program should not be underestimated. It must be stated, however, that this is true as far as the original conflict is concerned. Data are not available regard- ing the potential future preventive effects of the program. A follow-up study involv- ing conference participants could shed some light on this matter. A positive impact of the program on the experiences of those who participated in the conferences can also be seen. Anecdotal data collected by the Ministry show satisfaction with the restorative process among those who participated in the confer- ences, who have also declared they were treated with seriousness and respect by facilitators (Firpo 2017). This degree of satisfaction with the restorative process is consistent with the outcomes of other restorative programs reported on in the spe- cialized literature (Latimer et al. 2005; Sherman et al. 2005). Second, given the bottleneck in Uruguay’s criminal justice system, which results in only a few cases being resolved judicially, restorative justice could act as an ideal complement to the mainstream judicial process. This is sustained on at least two grounds. First, in normative terms, preventive and retributive goals can be fulfilled not only through standard sanctions but also through mediation agreements. Second, international experience shows that restorative justice can be implemented at differ- ent stages of the judicial process, i.e., prior to, in tandem with or following sentenc- ing, and also as an alternative measure to incapacitation (Sherman and Strang 2010). Such flexibility of restorative justice programs is particularly relevant in Uruguay, given the previously noted limitations of the judicial system to properly address the volume of conflicts in the country. 145 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… Third, all of the above have implications in the context of the implementation of the new Code of Criminal Procedure in Uruguay. Criminal justice cannot be understood in terms of a dichotomy between general crime prevention and specific prevention as it is a matter of choosing between the needs of the community and the needs of the per- petrator. The reform of the Uruguayan Code of Criminal Procedure has facilitated the participation of the victim, allowing justice operators (prosecutors) to resort to restora- tive justice as an alternative way of conflict and dispute resolution. Restorative justice can meet the expectations of those involved in the conflict and of the community, with- out one being absorbed by the other. Nothing prevents Uruguay from using restorative justice to accomplish both general and specific prevention goals, and at the same time increase the level of satisfaction with the justice system of those who participate in restorative practices (victims and offenders). Whether this is actually adopted in prac- tice by the Uruguayan judicial system remains to be seen, but its formalization in law is undoubtedly an important step toward social harmony and peaceful coexistence among the citizenry. Finally, it is important to pose some questions to guide future examinations of the process of adoption of restorative justice by Uruguay’s criminal justice system. The first is to what extent will Uruguay apply the recently created alternative measures to restore broken social relations, or just to speed up agreements between the prosecutor and counsel for the defense. Secondly, in a context of a high fear of crime and perma- nent calls for harsh punishments for ordinary crimes, it is worth asking to what extent Uruguay’s society and the institutions of its criminal justice system are prepared to accept and adopt a different approach to punishment. Thirdly, will all these transforma- tions result in an improvement of the capacity of the system to properly address violent incidents and conflict, while at the same time preventing future incidents and improv- ing citizens’ satisfaction with the justice system? All these questions are of importance and should guide future investigations of the experience of Uruguay’s criminal justice system with restorative justice. Any norma- tive reform in this field will not be successful if the need for real change in the mecha- nisms for achieving justice and social harmony is not understood by justice operators and society as a whole. Only a transformation in how citizens think—a process that starts by increasing the visibility of the problem, educating, advertising and explaining the disadvantages to which all citizens (not just criminals) are subjected to—leads to an actual change of lenses in Uruguay’s criminal justice system. Resistance and lack of interest demonstrated by both legislators and judicial officials against restorative prac- tices will only cease when the benefits of the new system are acknowledged and made visible (even if it is only complementary to the mainstream model) and when every actor involved in the justice process understands that this new model does not signify a loss of power, but rather a redefinition that leads to better access to justice for all. Acknowledgements Open access funding provided by Max Planck Society. Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 Interna- tional License (http://creat iveco mmons .org/licen ses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. http://creativecommons.org/licenses/by/4.0/ 146 P. Galain Palermo et al. 1 3 References Albrecht HJ (2001) Criminal preventive risk assessment in the law-making procedure. Final report on the research project 1999/FAL/140. Freiburg: Max-Planck-Institute für ausländisches und internation- ales Strafrecht Albrecht HJ (2016) Strafrechtliche Sozialkontrolle, Kriminalität und die Kriminologie. In: Albrecht HJ (ed) Kriminalität, Kriminalitätskontrolle, Strafvollzug und Menschenrechte. Internationales Kollo- quium zum gedenken an Professor Dr. Günther Kaiser am 23. Januar 2009, Berlin: Duncker & Humblot, pp 81–100 Albrecht HJ, Simon JM, Rezaei H, Rohne HC, Kiza E (2006) Conflicts and conflict resolution in Middle Eastern societies- between tradition and modernity. Duncker & Humblot, Berlin Baker M, Nienstedt B, Everett R, McCleary R (2000) The impact of a crime wave: perceptions, fear, and confidence in the Police. In: Ditton J, Farrall S (eds) The fear of crime. Ashgate, Aldershot, pp 151–167 Baumann E (2012) Striking a balance between justice and peace: restorative justice in sates of transition. In: Grönning, Jacobsen J (eds) Restorative justice and criminal justice. Exploring the relationship. Santérus Academic Press, Sweden, pp 123–168 Braithwaite J (2002) Restorative justice and responsive regulation. Oxford University Press, Oxford Christie N (1977) Conflicts as property. Br J Criminol 17(1):1–15 Consedine J (1995) Restorative justice: healing the effects of crime. Ploughshares, Lyttelton Corporación Latinobarómetro (2016) Informe 2016. Report, Corporación Latinobarómetro, Santiago de Chile Cunneen C, Hoyle C (2010) Debating restorative justice. Bloomsbury Publishing, Oxford del Castillo F, Fraiman R, Galain Palermo P (2015) Aproximación a la justicia restaurativa en Uruguay. Espacio abierto 23:100–105 Firpo E (2017) Ministerio del Interior. Reseña de actividades en desarrollo. Report, Ministerio del Inte- rior, Uruguay Fischer M, Simić O (2016) Transitional Justice and Reconciliation. Lessons from the Balkans. Routledge, Abingdom Foley T (2014) Developing restorative justice jurisprudence. Rethinking responses to criminal wrongdo- ing. Ashgate, Farnham Galain Palermo P (2010) La reparación del daño a la víctima del delito. Tirant lo Blanch, Valencia Galain Palermo P (2013) La influencia de las decisiones de los órganos del sistema interamericano de protección de los derechos humanos en el derecho penal de Uruguay. In: Ambos K, Malarino E, Steiner C (eds) Sistema interame-ricano de protección de los derechos humanos y derecho penal internacional. Fundación Konrad Adenauer, Bogotá, pp 399–443 Galain Palermo P (2016a) Justicia Restaurativa y Sistema Penal ¿Cambio de paradigma o nuevas her- ramientas de la justicia penal?. Universidad Católica del Uruguay, Montevideo Galain Palermo P (2016b) ¿Justicia de transición? Mecanismos políticos y jurídicos para la elaboración del pasado. Tirant lo Blanch, Valencia Gavrielides T (2011) Restorative practices: From the early societies to the 1970s. Internet J Criminol. Retrieved from http://www.inter netjo urnal ofcri minol ogy.com/Gavri elide s_Resto rativ e_Pract ices_ IJC_Novem ber_2011.pdf Gavrielides T (2015) The psychology of restorative justice. Managing the power within. Ashgate, Farnham Hassemer W (1998) Variationen der positiven Generalprävention. In: Schünemann B et al. (eds) Positive Generalprävention kritische Analysen im deutsch-en-glischen Dialog. Uppsala Symposium 1996. Heidelberg: Müller Hassemer W (2002) Darf der strafende Staat verurteilte bessern wollen? Resozialisierung im Rahmen positiver Generalprävention. In: Prittwitz C et  al (eds) Festschrift für Klaus Lürsenn. Nomos, Baden-Baden, pp 221–240 Hirsch H (1969) Zur Abgrenzung von Strafrecht und Zivilrecht. In: Sockelmann F et al (eds) Festschrift für Karl Engish. Geburtstag, Klostermann, Frankfurt, pp 304–326 Hirsch H (1990) Wiedergutmachung des Schadens im Rahmen des materiellen Strafrechts. Zeitschrift für die gesamte Strafrechtswissenschaft 102(3):534–562 Hörnle T (2017) Zwecke und Rechtfertigung staatlicher Strafe. In: Saliger F (ed) Rechtsstaatliches Stra- frecht. Festschrift für Ulfrid Neumann zum 70. Geburtstag. Müller, Heidelberg, pp 593–605 http://www.internetjournalofcriminology.com/Gavrielides_Restorative_Practices_IJC_November_2011.pdf http://www.internetjournalofcriminology.com/Gavrielides_Restorative_Practices_IJC_November_2011.pdf 147 1 3 Restorative Justice in Uruguay: A Change of Lenses in a Reform… Huxley E (1939) Red strangers. Chatto and Windus, London Jaamdar SM (2017) Restorative justice in India: old and new. In: Thilagaraj et al (eds) Restorative justice in India. Traditional practice and contemporary applications. Springer, Cham, pp 41–75 Jiang J (2016) Criminal reconciliation in contemporary china. An empirical and analytical enquiry. Elgar, Cheltenham Kenny P, Leonard L (2014) The sustainability of restorative justice. Emerald, Bingley Kerner H (1983) Diversion statt Strafe? Probleme und Gefahren einer neuen Strategie strafrechtlicher Sozial Kontrolle. Kriminalistik Verlag, Heidelberg Knust N (2013) Entwicklung eines pluralistischen Rechtsmodells am Beispiel des ruan-dischen Völker- mordes. Max-Planck-Institut, Berlin Lagos M and Dammert L (2012) La Seguridad ciudadana. El principal problema de América Latina. San- tiago de Chile: Corporación Latinobarómetro, Santiago de Chile Latimer J, Dowden C, Muise D (2005) The effectiveness of restorative justice practices: a meta-analysis. The prison journal 85(2):127–144 Luhmann N (2005) Soziologische Aufklärung 6. Die Soziologie und der Mensch, 2 Auflage, Verlag für Sozialwissenschaften, Wiesbaden Maepa T (2005) The truth and reconciliation commission as a model of restorative justice. In: Maepa T (ed) Beyond retribution. Prospects for restorative justice in South Africa. Institute for Security Stud- ies, Pretoria, pp 66–75 Marshall T (1996) The evolution of restorative justice in Britain. Eur J Crim Policy Res 4(4):21–43 McCold P, Wachtel B (2002) Restorative justice theory validation. In: Weiterkamp et al (eds) Restorative justice: theoretical foundations. Willan Publishing, Devon, pp 110–142 Ministerio del Interior (2016) 2016 Datos nacionales completos. Report, Ministerio del Interior, Uruguay Olásolo H, Galain P (2018) Los desafíos del Derecho internacional penal ante su encrucijada actual: Atención especial a los casos de Argentina, Colombia, España, México y Uruguay. Tirant lo Blanch, Valencia Raina S, Kumar R (2017) A justice that heals: restorative justice from an Indian perspective. In: Thila- garaj et  al (eds) Restorative justice in India. Traditional practice and contemporary applications. Springer, Cham, pp 97–118 Reggio F (2010) Giustizia dialogica. Luci e ombre della restorative justice. Franco Angeli, Milano Seelmann K (2017) Verzicht auf Strafe? In: Saliger F (ed), Rechtsstaatliches Strafrecht. Festschrift für Ulfrid Neumann zum 70. Geburtstag, Heidelberg: Müller, pp 715–724 Sherman LW, Strang H (2007) Restorative justice: the evidence. The Smith Institute, London Sherman LW, Strang H (2010) Restorative justice as a psychological treatment: healing victims and reintegrating offenders. In: Towl G, Crichton D (eds) Handbook of forensic psychology. Elsevier, Amsterdam, pp 398–415 Sherman LW, Strang H, Angel C, Woods D, Barnes GC, Bennett S, Inkpen N (2005) Effects of face-to- face restorative justice on victims of crime in four randomized, controlled trials. J Exp Criminol 1(3):367–395 Streng F (1991) Strafrechtliche Sanktionen. Grundlagen und Anwendung. Kohlhammer, Stuttgart Transparency International (2017) Corruption Perceptions Index 2017. Available at https ://www.trans paren cy.org/news/featu re/corru ption _perce ption s_index _2017 (accessed 22 February 2018) Walgrave L (2001) On restoration and punishment: favourable similarities and fortunate differences. In: Morris H et al (eds) Restorative justice for juveniles: conferencing, mediation and circles. Hart Pub- lishing, Oxford, pp 17–37 World Prison Brief (2017) World Prison Brief data. Available at: http://www.priso nstud ies.org/world -priso n-brief -data (accessed 28 December 2017) Zehr H (2004) El pequeño libro de la justicia restaurativa. United States: Good Books. https://www.transparency.org/news/feature/corruption_perceptions_index_2017 https://www.transparency.org/news/feature/corruption_perceptions_index_2017 http://www.prisonstudies.org/world-prison-brief-data http://www.prisonstudies.org/world-prison-brief-data Restorative Justice in Uruguay: A Change of Lenses in a Reform of Criminal Justice? Abstract 1 Introduction 2 What is Restorative Justice? 3 Background 4 Restorative Justice in Uruguay 5 Restorative Justice in the New Uruguayan Criminal Procedure Code 6 Implementation and Preliminary Results 7 Discussion and Conclusions Acknowledgements References 
work_6ap25w4if5gg7p3l6ddfzha4ye	----	Ethics in Science and Environmental Politics 2002:65 ETHICS IN SCIENCE AND ENVIRONMENTAL POLITICS ESEP 2002, 65 –74 Published September 26 As environmental pressures on our planet continue to increase, there is a new urgency to find ways for- ward in making practical decisions. The difficulty in making such decisions is well known, given the diver- sity of interests and conflicting assessment of priorities in each case (Huxham & Sumner 2000: ix –xi). There are a number of possible underlying causes of these difficulties. In general, there has been a bias towards constructing the framework of decision-making in terms of specific cases, judged in terms of the relative risk or benefit of a particular action(s).1 A case-by-case pragmatic approach certainly yields results that are specific for the issue in hand, but is not the only way of describing ethical choice. I have suggested that in the particular situation of GMOs such a framing assumes a consequentialist approach to ethics that is not neces- sarily sufficient, given that risks are in many cases not readily quantified and the benefits more often than not directed to a particular group or community (Deane- Drummond 2001:119–28).2 If environmental risks are unclear, such as is often the case with genetically mod- ified (GM) crops, then decisions will either take place on the basis of supposed benefits, highlighted as gen- eral advantages by a particular interest group, or the precautionary principle will be invoked in order to delay action until such time as the risks are quantified. The precautionary principle is sometimes defined as ‘a strategy for dealing with environmental risk and uncertainty, which guides us to act cautiously and embark on a systematic programme of research to improve our understanding of the costs and benefits of particular actions’ (BMA 1999:17). There are a number of difficulties associated with this type of precautionary approach (Merritt & Jones 2000:84–87). In the first place there are different assessments as to the degree of environmental risk in defining when the precaution- ary principle will take effect. Secondly, the extent of environmental risk is itself highly contested (Lash et al. 1996). Of course there are some who interpret the pre- cautionary principle as the basis for inaction unless positive damage is proven not to be the case. Donald © Inter-Research 2002 · www.int-res.com *E-mail: c.deane-drummond@chester.ac.uk Wisdom with justice Celia Deane-Drummond* Department of Theology and Religious Studies, Chester College, Parkgate Road, Chester CH1 4BJ, United Kingdom ABSTRACT: This paper explores the way we make environmental decisions, especially in the context of heavily contested issues such as GMOs. It suggests that as well as attention to particular conse- quences of action, due consideration needs to be given to the motivation and attitudes of the agents concerned, in other words, to virtue ethics. The values behind environmental decision-making are predicated on religious as well as philosophical assumptions. I argue that not only is it important to identify religious mandates for environmental action through models such as that of kinship, but also that exploring the wisdom tradition from a Christian perspective can serve to clarify ways forward where decision making is difficult. In the Christian community itself a recovery of wisdom and justice as virtues can serve to raise the importance of environmental concern, since it is rooted in an under- standing of God as creator and the idea of natural law. The concept of justice complements that of wisdom in that it facilitates an objective stance according to certain principles of equity. Resale or republication not permitted without written consent of the publisher 1 I am using the term ‘risk’ in a traditional, rationalist sense; though as Donald Bruce suggests, there have been moves away from this definition in more recent discussions. See Bruce (2001). 2 I am not implying that consequences should never be taken into account, rather than viewing the problem just in terms of consequences alone may miss out other aspects of ethical insight that need to be taken into account. ESEP 2002, 65–74 Bruce has discussed the competing visions of precau- tion (Bruce 2001). The language of precaution, rather like that of sustainability, can be filled out with differ- ent contents depending on the players involved. Such a discovery implies that we need to look behind the language to the motivation of those who are using such language. This is the province of virtue ethics. I hope to show that one way of filling out what a virtue ethic might look like from a Christian perspective draws on a rediscovery of the importance of wisdom. Wisdom in addition includes the idea of prudence, or practical wisdom, which in its turn includes the concept of pre- caution. Precaution thus becomes both situated and critiqued in the context of a wider Christian vision of reality. The philosopher Mary Midgley has also identified another problem when it comes to making decisions about the environment. She suggests that even if the risks are well known, inaction will still follow if the imagination is not sufficiently engaged. In other words, bald scientific facts about the perilous state of the planet are insufficient to motivate action or decision- making in its favour (Midgley 2001:188). While she sees that there are signs that people do care about the earth, the reason for this is not so much the threat of environmental collapse, as a renewed sense that we are part of the earth and have evolved from it. Midgley believes that Gaian thinking can serve to challenge acute individualism and anthropocentrism, which she identifies as the heart of the problem (Midgley 2001: 171–174). Gaian thinking is certainly suggestive of a more holistic understanding of reality. However, as I have argued elsewhere, there are theological and eth- ical problems associated with a Gaian approach to the world (Deane-Drummond 2001: 165–183). For exam- ple, in its more idealistic forms, Gaia seems not only to equalise the place of humanity in relation to other spe- cies, but also to put bacteria and blue green algae at the top of the pyramid. Furthermore, if Gaia is held to be a stabilising global system, it could be used to sup- port environmental abuse, rather than the opposite. I suggest that Midgley is, nonetheless, correct in searching for alternative ways of approaching the way we think about the earth and identifying underlying values that are behind our decision-making. A com- mon Christian response to these difficulties has been to advocate the ideal of stewardship (Berry 2000: 25). While this can take us some way in making responsible decisions, the will to change remains largely untouched through this motif alone. Furthermore, stewardship often implies management of the planet, which in itself can be suggestive of a somewhat anthropocentric epistemology. While it is preferable to other biblical motifs such as the idea of kingship, it still tends to be hierarchical in its assumption that nature is somehow ‘below’ the order of humankind, human are ‘stewards’ over against the natural world. From a his- torical perspective the interpretation of the notion of stewardship is problematic, associated with ideas about dominion and dreams about repairing the nat- ural world through human ingenuity (Bauckham 2000: 100–102). A third alternative is that of kinship, devel- oping the notion that all creatures are in some sense part of who we are as human beings. Such a view is not only consistent with evolutionary science, it also artic- ulates an important biblical principle, namely that the creatures of the earth, including humans, give glory to God, rather than human beings alone (Bauckham 2002). In this paper I suggest that one way to develop an ethic towards the natural world that highlights the notion of kinship is through a recovery of the idea of wisdom. Such a recovery has a number of advantages. Firstly, it challenges the idea that science is the only way of knowing, instead wisdom invites a broader frame of reference compared with the fragmented problem solving approach characteristic of much of modern science (Deane-Drummond 2000:5–14). In the second place it connects with the philosophical trend in ethics that focuses on agents and attitudes rather than actions, known as virtue ethics. In the third place wisdom draws on ancient theological traditions and resonates with theological imagination. As such it can offer a vision that serves to inspire appropriate action. In the fourth place wisdom has ethical outcomes through its association with the cardinal virtues of practical wisdom or prudence, justice, temperance and fortitude. In this paper I focus specifically on the 2 virtues of prudence and justice and how they might be expressed in practice, as they seem to me to be of par- ticular relevance to environmental decision-making. The special attention to consequentialism in environ- mental decision-making may seem somewhat surpris- ing given the strong move in contemporary philosophy to recover an alternative approach to ethics that stresses moral character, namely virtue ethics (Crisp & Slote 1998, Hursthouse 1999). On the other hand, a purely deontological approach that frames particular issues from theological norms may seem out of touch with secular ethical debates (Deane-Drummond et al. 2001:35–36). Virtue ethics, by focusing on the agent, rather than just the possible outcomes of specific ethi- cal dilemmas in isolation, encourages ongoing moral attention that serves not only to sustain human resilience in times when decision making is difficult, but also to challenge all parties involved to re-examine their attitudes. Virtue ethics is characterised by being agent centred, rather than act centred, putting empha- sis on goodness, rather than rights, duties or obliga- tions, even positively rejecting the idea that ethics can 66 Deane-Drummond: Wisdom with justice be codified in rules. Yet this does not mean that virtue ethics is not interested in particular actions, or for that matter the consequences of those actions. Rather, the fundamental ethical question of what I should do is expanded into related questions about who I am, who I should become and how I should get there (Keenan 1998: 84). THEOLOGICAL WISDOM What is meant by theological wisdom?3 Wisdom, by definition, is hard to define with any precision, as she appears in various guises in scriptural and traditional texts. Nonetheless, even the early 17th century natural scientists, such as John Ray, found the motif of wisdom expressive of the way they hoped to discover traces of God in the natural world (Ray 1977). Ray was reluctant to attribute more to wisdom than a trace or reflection of the mind of God in creation. Other theologians, writing from an Eastern Orthodox perspective, have devel- oped a Sophiology that places Wisdom integral to the being of God.4 It seems fair to suggest that scriptural texts point in this direction. In the Old Testament book of Proverbs, for example, Wisdom is personified as the one who works alongside God in the creation of the world.5 Wisdom, according to the book of Wisdom, is ‘intelli- gent, holy, unique, manifold, subtle, active, incisive, unsullied, lucid, invulnerable, benevolent, sharp, irre- sistible, beneficient, loving to man, steadfast, depend- able, unperturbed, almighty, all-surveying’ (Wisdom 7:22–23). It could even be said that some wisdom books, such as the book of Ecclesiastes, echo to some extent the approach adopted by contemporary philoso- phers advocating virtue ethics (Christianson 2002). Wisdom in the Old Testament is also something that is learnt in the human community, through experience in practical decision-making in family life, education and observation of the natural world. What are the possible ways to find wisdom? The book of Proverbs invites his readers to ‘Go to the ant, you sluggard, See its ways and be wise’ (Proverbs 6:7). The seeing is not so much simple observation of information about the ants, as perceiving the inner distinctive core of what it is to be an ant (Habel 2002). In other places in wisdom litera- ture the word ‘to discern’ (bin) is used, often following the act of seeing, to describe the process of becoming wise. Hence discernment is integral to what it means to gain wisdom. Discernment considers a range of options, but ultimately lights on ‘the way’, understood not just as the alternative between 2 paths, but also as the inner driving characteristic of something (Habel 2002). This, it seems to me, is particularly important as it locates discernment as that which correctly identifies the inner core of something, that itself is expressive of wisdom. Significantly, in the book of Job 28 the char- acteristic of finding wisdom also applies to God, as God ‘sees’ the different components of creation (Habel 2002). On this basis it is possible that Proverbs 8:22 means not that God created wisdom, but the more common understanding of the word qana, namely God acquired wisdom. This reinforces the suggestion that I have made elsewhere that an essential characteristic of God is that of wisdom (Deane-Drummond 2000: 131–137). Moreover, there appears to be a dialectical relationship between God and the world in the cre- ative process. God creates through wisdom, but God discovers wisdom in its turn in the created order. This does not preclude the primary focus of the Christian tradition on God relating to the world through over- flowing love. Rather, creation is in love, but through wisdom. This sapiential understanding of God’s rela- tionship to the world has common ground with some other religious traditions and serves to challenge the individualistic way we think about ourselves and in its place situate humanity in the wider cosmic community of life (Nasr 1996: 205). 6 The Christian tradition, nonetheless, develops this perennial philosophy in a way that is distinct, namely through the notion of the wisdom of the cross (Deane- Drummond 2000: 52–59). The cross is proclaimed as the ultimate expression of the wisdom of God (1. Cor. 1.8–2.5). This aspect of wisdom might come as some- thing of a shock, yet it serves as a reminder of the suf- fering and cruelty evident in the natural world and in human relationships. The wisdom of the cross announces the fact that such suffering is not outside the concern of God who is in Christ, rather the cruci- fied one takes on such suffering in solidarity with the earth. The savage loss of species could be said to be a loss in God, for it is a loss in abundance of relationships (Larkin 2002). Nonetheless, for the Christian tradition the cross is not the last word, for its consideration is coloured by hope in the resurrection. John’s Gospel 67 3 I have discussed this idea in detail previously in Deane- Drummond 2000 4 Sergii Bulgakov is a good example, though it should be noted that his views on wisdom have been criticised by other orthodox scholars, such as Vladimir Lossky (For discussion see Deane-Drummond 2000: 78– 92) 5 The developing interest in wisdom literature among Old Testament scholars bespeaks of a relative neglect of this tra- dition, see Deane-Drummond 2000: 15–22 6 Nasr criticises the West for its focus on environmental ethics; for him a religious understanding of the order of nature needs to have a higher priority. I suggest that a shift in un- derstanding of ordering is commensurate with a new ethical approach ESEP 2002, 65–74 speaks of the Logos acting in the world in terms that resemble very closely the way Wisdom is spoken about in the Old Testament (Deane-Drummond 2003). Hence Christ as Logos is identified with Wisdom or Sophia. Yet for John the cross is also the cross of Glory, for it points to a future in which all creation will be redeemed. The message of wisdom is, then, ultimately a hopeful one, even if it resists turning away from the challenge of creaturely suffering. A RECOVERY OF A WISDOM ETHIC While there are a variety of ways of thinking about wisdom from a Christian perspective, I have argued elsewhere that a wisdom ethic drawing on the works of Thomas Aquinas gives significant insights about the way to approach the natural world (Deane-Drummond 2000:99–107, 2002). Wisdom as theological wisdom needs to be set in the context of the 3 theological virtues of faith, hope and charity. (1 Cor. 13). Wisdom is learned, but it is also a gift from God. As gift it is given by grace, rather than through rigid adherence to the law, even though it is not separate from law. Aquinas describes the 7 gifts of the Holy Spirit as wisdom, understanding, counsel, fortitude, knowledge, piety and fear of the Lord.7 In as much as it can be learned, it can be shared by all those of good will, whether Chris- tian or not. In this sense it is aligned with the idea of natural law. Yet divine Wisdom also finds expression in the eternal or divine law, which for Christians is expressed in obedience to the demands of the Gospel (Eph. 1. 8–10). Hence a measure of whether an action is wise or not is in relationship to this divine law, a point made repeatedly by Aquinas in his Summa The- ologiae (Cessario 2001:58-59).8 For Aquinas wisdom is one of the 3 intellectual virtues of speculative reason, the others being understanding, or grasping first prin- ciples and scientia, which denotes the comprehension of the causes of things and the relationship between them. In other words wisdom is the understanding of the fundamental causes of everything and their rela- tionship to everything else. In Aquinas wisdom is expressed theologically, for God is the ultimate cause of all that exists in virtue of the fact that God is creator. Human wisdom is a virtue directed towards the Wis- dom of God, for while wisdom can be learned it cannot be grasped or used for human aggrandisement (Proverbs 16). In the fullest sense human wisdom is only possible through the gift of the Holy Spirit by the grace of God. The Christian vocation includes develop- ing the virtue of wisdom, seeking her through obedi- ence to God’s covenant laws as well as acquiring her through education and family life. Wisdom is closely related to one of the intellectual virtues of practical reason, namely prudence, also termed practical wisdom. Practical wisdom is particu- larly significant for ethics, since it sets the way individ- ual virtues must be expressed in particular circum- stances. Developing prudence is not just about one’s inner attitude, though it includes this, but it is also about how this attitude is expressed in action.9 For example, practical wisdom comes into play in discern- ing what is the most appropriate way of acting in given circumstances. Virtuous behaviour may, in some cir- cumstances, be related to the means of attaining a par- ticular goal. For example, genetically engineering seed so that it is sterile in order to force farmers to buy new seed every year could be seen as an inappropriate means in order to attain the goal of maximum profits. The goal itself may also be challenged where it eclipses other goals such as respect for the needs of the local community. In this case a form of ‘prudence’ would have led to the decision that sterile seed is the best way of attaining the goal, but because the goal is faulty, this leads to what Aquinas describes as ‘sham prudence’. Indeed, for the biblical writers discernment and wisdom are intimately linked with the fear of the Lord (Proverbs 1.7, 2.5, 9.10 etc.). Hence, forms of dis- cernment that act against the needs of the community amount to folly. Perhaps more accurately we could say that the goal is a partial good, for it benefits relatively few people. Hence, a virtue ethic orientated around wisdom includes the idea of consequences, but it is in relationship to orientation towards the Good, under- stood in terms of that which is in accordance with covenant law. Aquinas also used the term ‘incomplete prudence’ to indicate that the good is narrowed to par- ticular individuals. These distorted forms of practical wisdom are worth bearing in mind, since from the per- spective of, for example, a biotechnology company an action could look like it is entirely prudent. However, once the wider needs of the community are taken into account, such formulation of practical wisdom is shown to be incomplete. In this scenario practical wisdom 68 7 The traditional formulation takes its bearings from the virtues possessed by the coming Messiah, as described by Isaiah 11:1–2, and taken up in early Christian traditions as corresponding to the gifts of the Spirit. (Cessario 2001: 205 –12) 8 In the light of this it might seem surprising that some moral philosophers have tended to abstract the idea of natural law from Aquinas, and ignored its link with covenant relation- ships. For discussion see Deane-Drummond 2002 9 Mary Midgley has criticised the effectiveness of prudence for motivating environmental decision-making. However, her understanding of prudence is one that relates simply to rational causes and individual self-interest, rather than be- ing situated in a broader theological understanding of wis- dom in the manner I am suggesting here (Midgley 2001:188) Deane-Drummond: Wisdom with justice relates strongly to justice, which I will discuss further below. However, virtues are more subtle in that expressing a particular virtue cannot necessarily always be described through means and ends type of analysis. What would count as behaving virtuously in the con- text of the practice of science and technology? While the goals of environmental decision-making and the means of attaining such goals may come under scrutiny through prudential considerations, the humil- ity to accept that the public may have important insights into social issues, the courage to challenge developments in those cases where the opinion of local farming communities have not been taken into account, actions such as these are not readily analysed simply in terms of means and ends. Practical wisdom includes a number of characteris- tics that are worth pondering in the present context. Aquinas draws on 5 areas related to knowing, namely memory, reason, understanding, aptness to being taught and ingenuity (Aquinas 1974: 55).10 Clearly rea- son, understanding and ingenuity all come into play in developing scientific methods that are sensitive to environmental concerns. Yet these characteristics alone are not sufficient for practical wisdom, since it includes memory as well. The ability to remember is associated with appreciation of history and tradition. The memory is used in a selective way in devising new technologies. Historically biotechnology has emerged as one more example of the way humankind engages with the natural world. However, it cannot simply be isolated from the social context of the culture of mod- ern industrial farming (Northcott 2002). While it may not be possible to return to earlier idealised communi- ties, in the way that Northcott seems to suggest, a deeper memory of what it means for humanity to be in relationship with the land would shift what is envis- aged in terms of practical wisdom. Aquinas identifies 3 areas of practical wisdom related to doing, namely foresight, circumspection and caution, or avoiding obstacles (Aquinas 1974: 55–57). 11 Foresight means the ability to be free from particular biases and to discern how far the intended aim matches the overall goal of human life understood as ultimate goodness. Where these goals are narrowly portrayed in terms of the particular products of tech- nology, then foresight is distorted. For example, does the introduction of vital vitamins to rice and other sta- ple crops grown in the poorer nations of the world even begin to solve the problem of nutrition in these nations? A technological fix can only be a temporary and even partial solution; for it ignores the fact that world hunger is more often than not the result of eco- nomic and social problems.12 Even expecting multina- tional companies to solve the world food crisis is a fail- ure of foresight, for it assumes that they will behave altruistically rather than be driven by market forces (Stewart 2002). Circumspection is the ability to attend to circumstances, and involves a clear perception of reality. For example, the possible ecological damage associated with genetically modified crops has not so far been adequately researched, since ‘we do not have an adequate ecological understanding of the complex interactions engendered by releasing GMOs even into semi-natural ecosystems’ (Walton 2000: 15).13 Finally, prudence also expresses caution, or avoiding obsta- cles. There are numerous examples in genetic technol- ogy where there are clear risks involved either to human health or the environment. Where these risks are exaggerated, this amounts to a distortion of practi- cal wisdom. For example, the research published by Dr Arpad Pusztai claiming that a modified lectin gene causes adverse effects in rats was not subjected to nor- mal peer review and scrutiny prior to publication (Deane-Drummond 2001: 65). Despite this, campaign- ers and the media have used his work to make irre- sponsible claims that genetic modification causes seri- ous intestinal infection in rats, when in fact his research simply describes the structure of the small intestine (Dixon 2001:275). The precautionary principle is commonly adopted by committees adjudicating on whether or not to approve particular developments in GM research and associ- 69 10 While Aquinas takes this list from Aristotle, biblical wisdom also includes similar ideas of memory and aptness to being taught (Proverbs 3:1), reason and understanding (Proverbs 2:5, 18:15) and ingenuity (Proverbs 8:30) 12 Correcting one vitamin deficiency alone is likely to be of limited benefit because of the interaction between different vitamins and minerals needed for good health. While the researchers involved were in all probability well aware of this limitation, it is worth asking if the funding spent so far on such a development is really appropriate, given its lim- ited value. Shiva has suggested that red rice growing natu- rally has about ten times the concentration of vitamin A compared with the ‘golden rice’ modified by genetic engi- neering. (Shiva 2002). Public consultation is critical if such developments are not going to be perceived as yet another form of neo-colonialism, however good the intentions. The virtue of foresight can serve to encourage such a wider per- ception, rather than limiting the consideration to one of iso- lated problem solving 13 David Walton suggests, that if the funding was supported by the state then there might be greater public acceptance that ‘objectives were really feeding the hungry and not greater dividends, and that the control and oversight mech- anisms were robust enough to ensure that health and the environment would be protected as far as possible’, Walton 2000:15 11 These ideas are also found in instructions to those who wish to acquire wisdom in Proverbs, for circumspection, see Proverbs 14:8, for foresight and caution see Proverbs 14:16, 22:3 ESEP 2002, 65–74 ated environmental decisions. In this scenario we are left with the alternatives to adopt or reject the precau- tionary principle, along with difficulties of its defini- tion. Instead, I suggest that precaution needs to be just one factor set in a much wider frame of practical wis- dom, including the various elements indicated above. The lack of trust of governments on the part of the pub- lic is suggestive of alternative ways of framing deci- sion-making that takes this suspicion into account (Deane-Drummond et al. 2001:23 –24). Wisdom, as that which delves behind the attitudes of those making the decisions, is one possible step in the rebuilding of rela- tionships that is so vitally needed. THE SIGNIFICANCE OF JUSTICE AS VIRTUE I indicated earlier that virtue of justice is an appro- priate companion to prudence and wisdom in framing appropriate ethical action. The ancient sages were well aware of the link between justice and wisdom, indeed Proverbs personifies Lady Wisdom as one who ‘By me monarchs rule and princes issue just laws; by me rulers govern and the great impose justice on the world’ (Proverbs 8.16–17). In the monarchical society of the time, kingship, wisdom and justice were inter- twined. A more appropriate framework for today is kinship, rather than kingship, but this shift need not deny the basic principle of linking justice and wisdom. Virtue ethicists have tended to associate justice with Kantian ethics, but for Aquinas justice is also a virtue to be acquired, alongside prudence or practical wis- dom.14 Indeed when justice is defined in association with rights, it no longer makes logical sense to speak of justice towards future generations that is the premise of much environmental concern (Beckerman & Pasek 2001:11–45). This means that additional ethical resources are required in order to elucidate obliga- tions, and Beckerman & Pasek are driven to hint at the possibility of virtue theory making a contribution in this respect. However it is not filled out in any detail and they seem to assume that justice is not a virtue (Beckerman & Pasek 2001:24–25). Of course, unlike the other virtues, justice also has an objective basis through particular acts that could be characterised as just or not. In this sense justice moves away from virtue ethics sensus strictus in terms of agents and attitudes towards a more deontological position.15 In a similar way I indicated earlier that consequences are also taken into account in making prudential choices. This means that those following Kantian views can take into account some of the advantages gained through virtue ethics, so I suggest that it is possible to incorporate ideas about what counts as justice without losing the emphasis on the importance of the virtues. In a just order, each is given his or her due. This once again raises the priority of consideration of the needs of the poor as well as consideration of non-human creatures and the wider environment. Beckerman & Pasek pre- dict that there will be continuing economic growth and this will have a trickle down effect on alleviation of basic environmental problems and poverty, though basic human rights remain untouched by economic trends (2001:89–106). Yet their assumption that acute problems associated with environment and poverty will become progressively ameliorated amounts to eco- nomic reductionism based on economic forecasts. In addition, they seem to assume that the demands of the environment and those of the poor are in some sense in competition for the same economic resources, while recognising that they do at times intersect. Clearly, the means of deciding which environmental problem takes priority over which particular demand from a human community is critical, but this is not discussed. It is one of the reasons why I suggest that justice needs to be aligned with practical wisdom, understood as discern- ment: once justice is considered to be a virtue it no longer has to be associated so closely with the lan- guage of rights. The human virtue of justice, under- stood in terms of human obligations, can take into account the importance of the non-human species as part of the overall ecological community. What are the duties in relation to the ‘others’ in the community of life? Certainly, there may be legally binding actions that have to be undertaken, that are more based on particular objective rules, but also morally binding ones as well that are more closely aligned with attitudes of the agents. Even within the moral sphere it is possible to distinguish that which is dishonourable as opposed to that which is unseemly. The distinction between these various forms of justice as virtue can be illustrated as follows. Ten thousand hectares of genetically engineered cotton have been found growing in India in the Western state of Gujarat (Jayaraman 2001: 555). The cotton had been geneti- cally engineered to resist the bollworm using a gene from Bacillus thuringiensis. This gene (Bt) acts like an insecticide in the plants, and they are no longer 70 14 Onora O’Neill combines a Kantian approach with virtue ethics, see O’Neill 1996 15 It could be argued that wisdom also, as a theological cate- gory, moves away from virtue ethics in the manner under- stood by most philosophers. However, my intention is not to simply imitate virtue ethics, but to draw on these insights and incorporate them into a theocentric ethic of wisdom. Such a theocentric ethic is less alienating compared with other deontological theological positions, as it resonates with the language of virtues and orientates discussion around agents first, prior to consideration of particular theo- logical principles Deane-Drummond: Wisdom with justice infected. The farmers purchased their seed from Navb- harat, a small company which originally purchased seed from Maharashtra Hybrid Seeds Company, Mahyco. Monsato have a 26 % stake in the latter com- pany and the seed is freely available for purchase in the USA. The row exploded because Monsanto discov- ered Bt cotton on farms on the Western state of Gujarat and they had not been paid for the patents. Navbharat could argue that it lacked the technology to detect transgenic strains. From a legal perspective the action of Navbharat is against the law, breaking the legal requirement to pay dividends for patents on particular ‘inventions’, in this case GM cotton. It is not clear if Monsato had been granted an Indian patent on Bt cot- ton as the work with Mahyco was still at the field trial stage. Mahyco had spent US$8 million on preparing to commercialise Bt cotton for the Indian market. In terms of business ethics Mahyco/Monsato did have their par- ticular ‘rights’ violated according to patent law. It is also worth asking how far the Indian regulatory system is able to ensure that the patent can be carried out in terms of monitoring the seed. Perhaps the Indian authorities were imprudent in granting a patent in the first place. From the perspective of justice in the widest sense it is possible to ask whether the multinational giant Monsanto is morally justified in making such demands for patent payments where it is doubtful if India would ever have the resources for adequate monitoring. The practice of Western companies indulging in ‘gene piracy’ (i.e. the lifting of genetic resources from poorer nations and then imposing a patent on them), as well as the introduction of particular genetic traits such as ‘terminator genes’, serve to break down the trust between larger companies and our neighbours in the Southern nations of the world (Bruce & Horrocks 2002: 132–134).16 Both Monsanto’s attitude and their action could be said to be dishonourable in making demands for payments for patents from nations that can ill afford to do so. In addition, the imposition of patent law implies that frameworks adequate for an industrialised Western nation cannot be applied in a crude way to that of a poorer ‘developing’ community. It raises wider questions about the whole system of patenting as applied on an international level. Moreover what would be the social consequences for subsistent farm- ers growing traditional crops if agricultural practice shifted significantly towards commercial GMOs? The motivation of Monsanto in developing GM cotton for the Indian market was clearly commercial. If the offi- cials on either side behaved in such as way as to express hostility or anger, then such an attitude could be said to be unseemly. Justice is violated in this case because it serves to break down relationships in a com- munity. All acts of virtue relate in one sense or another to justice, hence Aquinas refers to justice as the ‘most perfect virtue’. 17 Developing cash crops specifically for use in the Indian subcontinent could be said to be an example of ecological injustice. The chairman of an Indian department of biotechnology committee has asked whether ‘this is a foretaste of a frightening situ- ation where transgenics will be out of control and all over the place’. 18 Yet the ‘solution’ to this biotechno- logical problem is to press for Rs100 million to be spent on national laboratories to monitor GMOs. Given the reality of the shortage of funds for other work, is this a just use of resources? The above example suggests that an act of justice can be judged, as it were, from the outside in an objec- tive way. This makes justice different from the other virtues such as temperance or fortitude. Acts of justice are not necessarily affected by particular dispositions towards another; hence it is possible to act justly while not having an inner disposition towards justice. It may be that the Indian company mistakenly mixed up the seed used, but while this would be a legal injustice according to patent law, it would not render the com- pany unjust. However, the ideal of justice as virtue requires both an inner assent to justice as well as an external just action. Justice also reflects obligations to the community, hence in Aquinas’s scheme it is ranked higher than other virtues such as temperance or forti- tude that relate simply to inner dispositions. While justice as virtue is the starting point for effec- tive environmental decision-making, consideration of wider concerns of justice locates the virtue in the con- text of a particular way of thinking in an objective sense about just relationships. Aquinas divided the just ordering in community life to firstly that between indi- viduals, or commutative justice; secondly to that between the whole and the individual or distributive justice; and thirdly that between the individual and social whole or legal justice (Pieper 1966:70 –74). These distinctions follow from the fact that the kind of legal protection afforded by the state is different in kind to that which is due between individuals. The philosopher Josef Pieper criticises individualism in not taking sufficient account of the reality of the social whole in making just decisions (Pieper 1966:70–74). On the other hand, there is an opposite danger in col- lectivism, where no one individual enters a relation- ship in their own right. In this case no individual is given any right, and hence no due. The idea of justice 71 16 Vandana Shiva has called this kind of action ‘piracy’. See Shiva 1998, 2001 17 I am drawing on the somewhat neglected work of the Ro- man Catholic philosopher, Josef Pieper (1966) 18 Cited in Jayaraman 2001 ESEP 2002, 65–74 collapses. Some forms of deep ecology and Gaian thinking seem to lean far too heavily in this direction. Of course Aquinas’ scheme fails to take into account the corporate nature of contemporary existence in so far as today, legally speaking, multinational companies have rights. Hence particular companies have particu- lar responsibilities to act according to the law. Commutative justice is what is owed to a stranger and follows what is due according to particular con- tracts. For all intents and purposes commutative justice could be said to apply to biotechnological companies in relation to individuals and their claims for particular demands for what is due in their case. The relationship between parties needs to be one of mutual respect, rather than hostility, so that the task of commutative justice is: ‘to bring solace and order into the conflict of contending interests which by their nature are legitimate opposites and not easily reconcilable, to impose on them, as it were, a posterior order, is the office and task of commutative justice’ (Pieper 1966:79). In the case of GMOs the task of commutative justice would be to ensure that no damage exists to someone or their property as a result of the release of GMOs. However, where accidents happen, such as in the case of accidental contamination of organic farms during field trials of GMOs, then compensation would be required since some recompense needs to be made. Of course this presupposes that it is possible for GMO field trials to take place without any risk of contamina- tion. Given the close proximity of different farming practices in countries such as the UK, this may not be feasible. In this scenario, it might be possible to argue for ‘organic-free zones’ as well as ‘GM free zones’. The just person needs to recognise the wrong committed, admit to the injustice and endeavour to eradicate it. The problem in the case of organic farming is that both organic and non-organic farmers claim an equal right to practice farming according to particular principles, though an assessment of risk to organic farmers would seem to be prudent prior to approval of field trials. The case of multinationals also crosses into a second area of justice, namely distributive justice, since this describes the relationship between those who have power and those who are in some sense ‘delivered’ to this power. Since biotechnology is governed largely by the work of multinationals plus in some cases central government, the responsibility for just action becomes one of distributive justice. The difference is that whereas in the classic understanding of distributive justice, what belongs to an individual is a share in what belongs to everyone, for multinationals, apart from its relationship to its own employees or stake holders, the individual has no share or part in its activities, except in so far as the flourishing of the company boosts the overall economy of the state as a whole. Those who are guardians of the common weal calcu- late what is due to the individual in the case of distrib- utive justice. For state rendered compensation, partic- ular subjects of particular grievances are taken into account in a way that is not true of commutative jus- tice. Yet where those who are responsible do not exer- cise their powers justly, then injustice reigns. Where the law of the state restrains multinationals to act responsibly towards individuals and the environment, then one can expect some measure of justice to ensue. However, what happens in those situations where state law is less regulated such as the relative lack of regu- lations on the safe use of chemicals, fertilisers and also genetically modified crops in the poorer nations of the world? According to a recent report ‘developing coun- tries have less well developed regulatory structures and expertise to manage the introduction of GM crops appropriately’ (Nuffield Council on Bioethics 1999: 136). In this case justice relies on being exercised by the multinational companies towards strangers, in this case those living in such nations. The parties to the global convention on biodiversity (CBD) are trying to adopt a Biosafety Protocol. While this may act like ‘a first line of defence’ it relies on members being part of this wider global community. In these instances, inter- national bodies also contribute to the working out of justice. CONCLUSIONS In addition to social and political considerations, I have argued that in order to uncover the reasons behind difficulties in environmental decision making we need to explore human attitudes and motivation. One attitude of particular significance is that of wis- dom, for not only does it link with practical reason through prudence, but also from a theological perspec- tive it joins with an understanding of the relationship between God, humanity and the world. In other words wisdom invites a theocentric perspective on ethics that does not exclude secular ethical considerations, but encompasses and critiques different secular alterna- tives. Given that I have argued for a recovery of Aquinas’ way of approaching ethics, his views on prac- tical wisdom and justice as virtues are also of particu- lar importance. Prudence is the first of the cardinal virtues and serves to shape the way they develop. In other words, there can be no justice without prudence. Justice is situated in the context of right relationships between God and the created world understood in terms of covenant. The nature of the relationships themselves can be described theologically in terms of 72 Deane-Drummond: Wisdom with justice wisdom. How might this work out in practical decision- making? I suggest that those who are responsible for making decisions have a responsibility to examine closely the attitudes and motivation of all contesting parties. In terms of raising environmental awareness and concern, wisdom reminds us of the importance of the created order, the need to consider the beauty and intricacy of creation, and hence is aligned to other virtues such as wonder and humility. A virtue ethic ori- entated on wisdom challenges the sufficiency of conse- quential approaches, while including the prudential discernment of consequences as integral to what it means to have virtue. For Christian believers such scrutiny of attitudes becomes part and parcel of Chris- tian discipleship, since such decisions are consistent with what it means to inaugurate the reign of God and express God’s wisdom. The Christian vision includes one of kinship with creatures, so that all creatures are not simply for instrumental human use, but are given respect as those that embody, to some degree, the wis- dom of God. In discussing the merits or otherwise of biotechno- logical change, justice between individuals and corpo- rations is not simply definable in terms of breaking the law such as that covering patents, because there are moral aspects of justice that make particular attitudes and actions dishonourable. Yet justice requires pru- dential consideration of the alternatives before a claim can be made. In other words, the ability to see reality clearly — which is the province of practical wisdom - leads to actions that affect human relationships with each other — which is the province of justice. This paper has attempted to delineate some of the ways in which wisdom and justice as virtues could facilitate environmental decision-making. I have argued that wisdom is integral to an understanding of who God is and thus needs to be reflected in the way humanity relates to each other and to the natural world. The search for wisdom is always incomplete, for it involves the shared search of the wider community of the pub- lic including theologians and scientists. I suggest that it is in and through such collaboration that respect for God and for each other develops. Perhaps we can say that this developing respect is the beginning of wis- dom (Proverbs 1:1–7). LITERATURE CITED Aquinas T (1974) Summa Theologiae 2a2ae, Vol 36, Pru- dence, Qu. 48 Parts of Prudence, translated by T Gilby. Blackfriars, London Bauckham R (2000) Stewardship and relationship. In: Berry RJ (ed) The care of Creation. IVP, Leicester, p 99 –106 Bauckham R (2002) Voicing Creation’s praise. Ecotheology 7.1:45 – 59 Beckerman W, Pasek J (2001) Justice, posterity and the envi- ronment. Oxford University Press, Oxford. Berry RJ (ed) (2000) The care of Creation: focusing concern and action. IVP, Leicester: BMA (1999) The impact of genetic modification on agricul- ture, food and health: an interim statement. British Med- ical Association, London Bruce D (2001) How far should we take the precautionary principle? Paper delivered to the British Ecology Society and the Linnean Society, April 26th 2001, Burlington House, London Bruce D, Horrocks D (eds) (2001) Modifying Creation? GM crops and foods: a Christian perspective. Evangelical Alliance Policy Commission, London Cessario R (2001) Introduction to moral theology. The Catholic University of America Press, Washington, DC Christianson E (2002) The ethics of narrative wisdom: a test case. In: Brown W (ed) The character of Scripture: moral formation, identity, and ethics in the Bible. Eerdmans, New York (in press) Crisp R, Slote M (1998) Virtue ethics. Oxford University Press, Oxford Deane-Drummond C (2000) Creation through wisdom: theol- ogy and the new biology. T & T Clark, Edinburgh Deane-Drummond C (2001) Biology and theology today: exploring the boundaries. SCM Press, London Deane-Drummond C (2002) Aquinas, wisdom ethics and the new genetics. In: Deane-Drummond C, Szerszynski B (eds) Re-ordering nature: theology, society and the new genetics. T & T Clark/Continuum, Edinburgh (in press) Deane-Drummond C (2003 The Logos as Wisdom: a starting point for a Sophianic theology of Creation. In: Clayton P, Peacocke A (eds) In whom we live and move and have our being: reflections on panentheism in a scientific age. Eerdmans, New York (in press) Deane-Drummond C, Szerszynski B, Grove-White R (2001) Genetically modified theology. Studies in Christian Ethics (14):25– 41 Dixon B (2001) Transgenic ills and otherwise: Review of Redesigning Life? In: Toker B (ed) The worldwide chal- lenge to genetic engineering, Nature 412:275 Jayaraman K.S (2001) Illicit cotton sparks corporate fury. Nature 413:555 Habel, N (2002) The Book of Job: Suffering and cognition in context, Paper delivered to the colloquium of the Royal Netherlands Academy of Arts and Sciences, April 22 –23 2002 Hursthouse R (1999) On virtue ethics. Oxford University Press, Oxford Huxham M, Sumner D (eds) (2000) Science and environmen- tal decision making. Prentice Hall/Pearson Education, Edinburgh Johnson E (1992) She who is: the mystery of god in feminist theological Discourse. Crossroad, New York Keenan J (1998) Virtue Ethics. In: Hoose B (ed) Christian ethics: an introduction. Cassell, London, p 84 –94 Larkin L (2002) Face-to-face with Limobius mixtus, Ecotheol- ogy, 7.1:30 – 44 Lash S, Bronislaw S, Wynne B (1996) Risk, environment and modernity: towards a new ecology. Sage, London Merritt JQ, Jones PC (2000) Science and environmental deci- sion-making: The social context. In: Huxham M, Sumner D (eds) Science and environmental decision making. Prentice Hall/Pearson Education, Edinburgh, p 63-93 Midgley M (2001) Science and poetry. Routledge, London Nasr S (1996) Religion and the order of nature. Oxford Uni- versity Press, Oxford 73 ESEP 2002, 65–74 Northcott M (2002) Behold I have set the land before you. (Deut. 1.8): Christian Ethics, GM foods and the culture of modern farming. In: Deane-Drummond C, Szerszynski B (eds) Re-ordering nature: theology, society and the new genetics. T & T Clark/Continuum, Edinburgh (in press) Nuffield Council on Bioethics (1999) Genetically modified crops: the ethical and social issues. Nuffield, London O’Neill O (1996) Towards justice and virtue: a constructive account of practical reasoning. Cambridge University Press, Cambridge Pieper J (1966). The four cardinal virtues. University of Notre Dame Press, Notre Dame Ray J (1691/1977) The wisdom of God manifested in the works of creation. Arno Press, New York Shiva V (1998). Biopiracy. Green Books, London Shiva V (2001) Stolen Harvest: The hijacking of the global food supply. Zed Books, London Shiva V (2002) Opening plenary. Workshop on life on a threatened planet: genetic controversy and environmental ethics, June 4, 2002, Centre for Theology and the Natural Sciences, University of Berkeley, California, USA Stewart J (2002) Reordering means and ends: Ellul and the New Genetics. In: Deane-Drummond C, Szerszynski B (eds) Re-ordering nature: theology, society and the new genetics. T & T Clark/Continuum, Edinburgh (in press) Walton D (2000) Genetically modified futures? Brit Ecol Soc Bull 31(2):14 –16 74 Editorial responsibility: R.J. (Sam) Berry, London, United Kingdom Submitted: September 4, 2002; Accepted: September 7, 2002 Proofs received from author(s): September 23, 2002 Published on the web: September 26, 2002 
work_6jekflb7tne2tjb6etuv2rfz4m	----	[PDF] Shared and Configural Justice: A Social Network Model of Justice in Teams | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.5465/AMR.2005.17293715 Corpus ID: 37800739Shared and Configural Justice: A Social Network Model of Justice in Teams @article{Roberson2005SharedAC, title={Shared and Configural Justice: A Social Network Model of Justice in Teams}, author={Quinetta Roberson and J. Colquitt}, journal={Academy of Management Review}, year={2005}, volume={30}, pages={595-607} } Quinetta Roberson, J. Colquitt Published 2005 Sociology Academy of Management Review We propose a model of justice in teams that articulates the social influence processes through which shared perceptions of justice emerge and that explores the subsequent effects on team effectiveness outcomes. We also consider barriers to the emergence of shared team justice and introduce configural forms of justice that may result. Theoretical and practical contributions of the model for understanding the meaning and operation of justice at the team level of analysis are discussed.  View via Publisher media.terry.uga.edu Save to Library Create Alert Cite Launch Research Feed Share This Paper 191 CitationsHighly Influential Citations 4 Background Citations 79 Methods Citations 5 Results Citations 4 View All Figures from this paper figure 1 figure 2 191 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Justice in Self-Managing Teams: The Role of Social Networks in the Emergence of Procedural Justice Climates Quinetta Roberson, Ian O. Williamson Sociology 2012 68 Save Alert Research Feed Justice in teams : The activation and role of sensemaking in the emergence of justice climates Quinetta Roberson Psychology 2006 123 Save Alert Research Feed Examining JusticE from a social nEtwork PErsPEctivE Dan Brass Political Science 2008 7 Save Alert Research Feed A Multi-Level Analysis of Organizational Justice Climate, Structure, and Employee Mental Health† C. Spell, Todd Arnold Psychology 2007 148 Save Alert Research Feed Ethics, Values, and Organizational Justice: Individuals, Organizations, and Beyond Marshall Schminke, A. Arnaud, R. Taylor Sociology 2015 32 Save Alert Research Feed The Joint Effects of Justice Climate, Group Moral Identity, and Corporate Social Responsibility on the Prosocial and Deviant Behaviors of Groups Meghan A. Thornton, D. Rupp Psychology 2016 25 Save Alert Research Feed Chapter 10 The fairness of difference: How team composition affects the emergence of justice climates Quinetta Roberson, Ian O. Williamson Political Science 2010 1 Save Alert Research Feed Chapter 9 From justice events to justice climate: A multi-level temporal model of information aggregation and judgment D. Rupp, E. Paddock Political Science 2010 45 Save Alert Research Feed An employee-centered model of organizational justice and social responsibility: D. Rupp Psychology 2011 196 Save Alert Research Feed An employee-centered model of organizational justice and social responsibility Deborah E. Rupp 2011 2 View 2 excerpts, cites background Save Alert Research Feed ... 1 2 3 4 5 ... References SHOWING 1-10 OF 88 REFERENCES SORT BYRelevance Most Influenced Papers Recency A Case for Procedural Justice Climate: Development and Test of a Multilevel Model Stefanie E. Naumann, Nathan Bennett Psychology 2000 566 View 2 excerpts, references background Save Alert Research Feed Justice at the millennium: a meta-analytic review of 25 years of organizational justice research. J. Colquitt, D. E. Conlon, M. J. Wesson, C. O. Porter, K. Ng Psychology, Medicine The Journal of applied psychology 2001 4,523 PDF View 2 excerpts, references background Save Alert Research Feed JUSTICE IN TEAMS: ANTECEDENTS AND CONSEQUENCES OF PROCEDURAL JUSTICE CLIMATE J. Colquitt, R. Noe, C. L. Jackson Psychology 2002 613 View 1 excerpt Save Alert Research Feed A Multilevel Analysis of Procedural Justice Context K. W. Mossholder, Nathan Bennett, C. Martin Psychology 1998 280 Save Alert Research Feed Understanding Procedural Justice and Its Impact on Business Organizations M. A. Konovsky Psychology 2000 742 View 1 excerpt, references background Save Alert Research Feed RETALIATION IN THE WORKPLACE: THE ROLES OF DISTRIBUTIVE, PROCEDURAL, AND INTERACTIONAL JUSTICE D. Skarlicki, R. Folger Psychology 1997 1,906 PDF View 1 excerpt, references background Save Alert Research Feed Building Commitment, Attachment, and Trust in Strategic Decision-Making Teams: The Role of Procedural Justice M. Korsgaard, D. M. Schweiger, H. Sapienza Psychology 1995 952 View 1 excerpt, references background Save Alert Research Feed Understanding why the justice of group procedures matters: A test of the psychological dynamics of the group-value model. T. Tyler, P. Degoey, H. Smith Psychology 1996 766 Save Alert Research Feed Collective restraint in social dilemmas: Procedural justice and social identification effects on support for authorities. T. Tyler, P. Degoey Psychology 1995 493 View 1 excerpt, references background Save Alert Research Feed The Social Psychology of Procedural Justice E. Lind, T. Tyler Political Science 1988 5,207 View 2 excerpts, references background Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Figures 191 Citations 88 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_6l2trl7k65h2tdmmgmgpj26mgq	----	1 23 Ethical Theory and Moral Practice An International Forum ISSN 1386-2820 Volume 15 Number 3 Ethic Theory Moral Prac (2012) 15:369-386 DOI 10.1007/s10677-011-9300-0 Burdened Societies and Transitional Justice Lisa L. Fuller 1 23 Your article is protected by copyright and all rights are held exclusively by Springer Science+Business Media B.V.. This e-offprint is for personal use only and shall not be self- archived in electronic repositories. If you wish to self-archive your work, please use the accepted author’s version for posting to your own website or your institution’s repository. You may further deposit the accepted author’s version on a funder’s repository at a funder’s request, provided it is not made publicly available until 12 months after publication. Burdened Societies and Transitional Justice Lisa L. Fuller Accepted: 12 June 2011 /Published online: 30 June 2011 # Springer Science+Business Media B.V. 2011 Abstract Following John Rawls, nonideal theory is typically divided into: (1) “partial- compliance theory” and (2) “transitional theory." The former is concerned with those circumstances in which individuals and political regimes do not fully comply with the requirements of justice, such as when people break the law or some individuals do not do their fair share within a distributive scheme. The latter is concerned with circumstances in which background institutions may be unjust or may not exist at all. This paper focuses on issues arising in transitional theory. In particular, I am concerned with what Rawls’ has called “burdened societies," that is, those societies that find themselves in unfavorable conditions, such that their historical, social or economic circumstances make it difficult to establish just institutions. The paper investigates exactly how such burdened societies should proceed towards a more just condition in an acceptable fashion. Rawls himself tells us very little, except to suggest that societies in this condition should look for policies and courses of action that are morally permissible, politically possible and likely to be effective. In this paper I first try to anticipate what a Rawlsian might say about the best way for burdened societies to handle transitional problems and so move towards the ideal of justice. Next, I construct a model of transitional justice for burdened societies. Ultimately, I argue for a model of transitional justice that makes use of a nonideal version of Rawls’ notion of the worst-off representative person. Keywords Burdened societies . Transitional theory. Nonideal theory. Development . Human rights 1 Introduction John Rawls famously divides political philosophy into ideal and nonideal theory. Ideal theory “assumes strict compliance and works out the principles that characterize a well- ordered society under favorable circumstances,” while nonideal theory “is worked out after Ethic Theory Moral Prac (2012) 15:369–386 DOI 10.1007/s10677-011-9300-0 L. L. Fuller (*) Department of Philosophy, University at Albany (SUNY), 1400 Washington Ave., Albany, NY 12222, USA e-mail: lfuller@albany.edu Author's personal copy a conception of [ideal] justice has been chosen,” and “asks how this long-term goal might be achieved, or worked toward, usually in gradual steps” (Rawls (1999a) p. 216, hereafter “TOJ”; Rawls (1999b) p. 89, hereafter “LP”.) He further divides nonideal theory into two kinds: (1) “partial-compliance theory” and (2) “transitional theory” (Rawls LP, pp. 5, 90). Partial-compliance theory is concerned with those circumstances in which individuals and political regimes do not fully comply with the requirements of (domestic or international) justice, such as when people break the law or when states engage in wars of aggression. Transitional theory is concerned with circumstances in which background institutions are unjust or do not exist at all, due to the natural limitations of agents, historical contingencies, or unfavorable conditions such as extreme poverty (Rawls TOJ, p. 216; LP p. 90). This paper focuses on issues arising in transitional theory. In particular, I am concerned with what Rawls’ has called “burdened societies,” that is, those generally peaceable societies that “lack the political and cultural traditions, the human capital and know-how, and often, the material and technological resources needed to be well-ordered” (Rawls LP, p. 106). Burdened societies find themselves in “historical, social or economic circumstances” that make it “difficult if not impossible” to establish just institutions.1 The purpose of this paper is to investigate how such burdened societies can reasonably proceed towards a more just condition. When facing problems in nonideal theory, Rawls suggests that we must look for “policies and courses of action that are morally permissible and politically possible as well as likely to be effective [emphasis added]” (Rawls LP, p. 89). However, he offers little insight into how societies might go about meeting these requirements. This is not surprising, since his general approach does not depart sufficiently from the ideal to make these issues especially salient. I intend to “take up where he left off” so to speak, that is, to construct a model of transitional justice for burdened societies. The paper has four main sections. First, I outline the “terrain” and methodology appropriate to nonideal theory as I conceive it. Next, I explain how burdened societies fit into Rawls’ overall project, and how they ought to be understood. Third, I try to anticipate what a Rawlsian might say about the best way for them to handle transitional problems and so move towards the ideal of justice. Finally, I argue for a model of transitional justice that makes use of a nonideal version of Rawls’ notion of the worst-off representative person. 2 Notes on Non-ideal Theory Recent work in nonideal theory contains persuasive arguments for expanding its scope beyond the original definition introduced by Rawls. In addition, much of this work has specified in some detail both the subject matter and methods suitable to nonideal theorizing. Rather than giving an exhaustive overview of these developments, in this section I simply aim to explain those features of nonideal theory that will be relevant to my later discussion. On the traditional picture, nonideal theory presupposes ideal theory. According to Rawls, “until the ideal is identified … nonideal theory lacks an objective, an aim, by reference to which its queries can be answered” (Rawls LP, p. 90). Further, existing arrangements are to be judged in light of our understanding of what is ideally just, and “held to be unjust to the extent that they depart from [the ideal] without sufficient reason” (Rawls TOJ, p. 216). Ideal 1 Rawls, LP, p. 5. I leave aside cases of total impossibility, since if there are no possible reforms that a burdened society could implement that would lead to a more just condition, then I have nothing to discuss. However, given the ability of societies to change, especially with the input and assistance of other societies, it seems likely that these cases will be very few. 370 L.L. Fuller Author's personal copy John Simmons points out that in Law of Peoples Rawls claims that ideal theory has two “parts” or “domains.” The first part of ideal theory “is an account of justice appropriate to liberal democratic societies,” that is, principles for a perfectly just society as laid out in a Theory of Justice. The other part “extends the same ideas to the international community, deriving principles for a ‘society of peoples’ … that can bring about and make stable (‘well-order’) a just international ‘society’” (Simmons (2010), p. 10). Simmons identifies two corresponding parts of nonideal theory—one addressing failures of domestic institutions to live up to the ideal of justice, and the other addressing failures of societies to live up to the requirements of ideal international justice. Finally, Simmons, like others, notes “that there is third part of ideal theory [only briefly alluded to by Rawls] plainly requiring a corresponding third kind of nonideal theory.” 5 This third part of ideal theory will specify a set of ideal (moral) principles to govern individual conduct, and will have its counterpart in nonideal theory that will specify the requirements of individual conduct in nonideal conditions. In each “domain” the nonideal theorist will be confronted both by problems that arise from partial compliance and problems concerning the transition from a less-just to a more-just condition. Some further clarification is warranted with respect to transitional theory in particular. Perhaps most important is Gopal Sreenivasan’s observation that transitional justice, “as it emerges on the second branch of Rawls’ division, means something quite different from what it means in the political science literature burgeoning under the same name” (Sreenivasan (forthcoming)). Basically, issues of “transitional justice” or “transitional theory” in the context of nonideal theory are distinct from discussions of the aftermath of regime change that often go by the same name.6 As I understand it, the main areas of concern within transitional theory are fourfold: (1) costs (2) unfavorable conditions (3) feasibility and (4) path-dependence. I take them up in turn. 2.1 Colin Farrelly rightly observes that in the nonideal world, protecting even the most basic negative rights costs money. This means that trade-offs between these and other primary goods will need to be made. Sreenivasan notes that beyond the costs of merely maintaining the various agencies required to administer services in a just society—such as courts, police, environmental protection, social services, national defense, etc.—there will also be one-time start-up costs associated with making the 2 The grievousness of an injustice is said to be a matter of the extent to which a given institution deviates from perfect justice. It is conceivable that a given reform my make a society more just right now, but will not be consistent with perfect justice-or may even impede its realization. Rawls, TOJ, p. 216. 3 For instance, Sen (2009) criticizes this approach in great detail. Sreenivasan (2007) also suggests an alternative conception of the relationship between ideal and nonideal theory. 4 It is not my intention to present an unorthodox interpretation of Rawls. Instead, I try to work within established interpretations of Rawls’ work as articulated by Simmons (2010) and Moellendorf (1996), among others. Any errors in this regard are purely my own. 5 See Simmons (2010), p. 11, and also Phillips (1985), p. 553. 6 Therefore, questions of retributive and restorative justice that are appropriate to this different notion will not be considered here. Burdened Societies and Transitional Justice 371 theory, then, specifies the end-point or long-term goal to be achieved. The job of nonideal theory is to work toward the ultimate goal of achieving perfect (domestic or international) justice by identifying and proposing solutions to existing injustices, beginning with those that are “most grievous,”—keeping in mind that no single reform should ever prevent us from reaching the end goal.2 This picture has been criticized, but I will not dispute it here.3 Instead, the traditional model will form the background for my discussion. For the sake of argument, I will also assume that a just society is one that approximates Rawls’ conception of justice as fairness.4 Author's personal copy transition from a society without the required institutions to one that has them.7 These are in addition to the personal cost to individuals of bringing their behavior, attitudes and expectations into line with what is required by the new institutions, when they have been socialized under vastly different conditions. Transitional theorists must attempt to assess the costs of various alternative sets of improvements in terms of their efficiency, effectiveness and also in terms of the size and distribution of burdens that they impose, both over time and across various affected groups. 2.2 Since ideal theory assumes reasonably “favorable” or “fortunate” conditions, we should expect that nonideal theory will take into account various types of human misfortune. These misfortunes are the types of occurrence which make it difficult for a given society to achieve justice. Unfavorable conditions can be historical, economic, or social, and we can understand them as largely “inevitable” and “unfortunate” rather than as coming about as a result of deliberate or “clearly avoidable” acts or policies (Simmons (2010), p.15.) Examples of unfavorable economic conditions might be extreme poverty (perhaps due to environmental disasters or lack of development), lack of natural resources, lack of technology or an unworkably low number of working-age citizens (perhaps caused by disease). Social conditions that might be considered unfavorable are certain cultural or social attitudes or norms that make more just conditions undesirable to much of the population (for instance, racism, sexism, ethnic tensions or prejudices, adaptive preferences, a culture of corruption and bribery, or lack of political will). Examples of unfavorable historical conditions might be: deep social or political divides that make cooperative and coordinated reforms very unlikely, or the negative after-effects of colonialism or war. While the precise combination of difficulties will be different for each society, and so no “one-size-fits-all” theoretical solution is possible, there is nevertheless a role for the nonideal theorist to play in developing principles by which we might better understand the most pervasive of these problems, and evaluate proposals for overcoming them. 2.3 When we theorize about the political feasibility of particular reforms we are essentially concerned with the obstacles that stand in the way of realizing a given ideal of justice. While non-compliance and unfavorable conditions are clearly related to feasibility, the focus here is on certain kinds of obstacles. Pablo Gilabert describes these obstacles as depending “not only on general facts about human psychology and social organization, but also on the specific ways these operate in different cultural and institutional settings” (Gilabert (2008), pp. 415). So, concerns about feasibility are, in large part, concerns about those obstacles to realizing justice that arise from human nature generally, as well as specific social contexts. Gilabert notes that arguments about feasibility are highly uncertain and imprecise. He also observes that what is feasible in a given society is “a moving target” since [t]here are moments in which political agents (including, in particular, inspired leaders) reshape and correct perceptions of what is politically possible by pursuing ambitious projects which turn out to be realizable despite initial general dismissal (Gilabert (2008), pp. 416–417). Some reforms may be infeasible due to the kinds of unfavorable historical or social conditions mentioned earlier, or they may arise from brute facts about human nature, such as the desire for power and wealth, or instances of irrationality. Worries about feasibility—when they are plausible—function as reasons why a given society may 7 See Farrelly (2007), p. 850, and also Sreenivasan (forthcoming). 372 L.L. Fuller Author's personal copy not be required to pursue a given course of reform toward a more just society. They act as a kind of excusing condition vis-à-vis certain desirable reforms. However, a plausible argument that a certain reform is infeasible must walk a difficult line, since treating too many elements of the status quo as fixed results in what Gilabert calls “conservative narrowness” while taking too few elements to be fixed results in recommendations that are mere fantasies. 2.4 The term “path dependence” is sometimes used in reference to problems associated with “how to get there from here”, that is, the route a society should take from where it is now to a situation where it approximates the relevant ideal of justice. Simmons notes that if we understand nonideal theory as fundamentally oriented toward achieving a particular end-point, we can see that the best path might in fact lead us to endorse a set of policies or actions that are less just than the status quo, in order to better facilitate arriving at the correct end-point. His basic argument is that we may need “to take one step back in order to take two steps forward,” and that this would be in line with Rawls’ understanding of the role of nonideal theory (Simmons (2010), p. 23). Upon reflection, we can see that not only is Simmons correct that the route to a perfectly just society is not necessarily linear; it is also likely that there are multiple routes that could be taken to the same end-point. Different routes will vary according to their costs, their general moral permissibility, the length of time they will take to implement, and the likelihood of their being realized (rather than thwarted mid-way). I take it to be a central task of nonideal theory to try to imagine and evaluate these routes. Such an evaluation should take account not merely of the efficiency and certainty of a given set of policies in arriving at the end-point, but also the processes that would be utilized to arrive there. As Ingrid Robeyns points out, not all processes are created equal. We might prefer processes that “are respectful and democratic” for instance, over those that are not (Robeyns (2008) p. 350). 3 Burdened Societies Having outlined the key issues facing transitional theory more generally, I’ll now briefly outline Rawls’ concept of a burdened society. Rawls’ general objective in Law of Peoples is to specify an ideal conception of international justice, that is, rules that specify the proper conduct of domestically just states with respect to one another. He generates these rules through a version of the “original position” in which representatives of domestically just peoples come together to deliberate about fair and reasonable rules to regulate their interactions behind a “veil of ignorance.”8 The result of these deliberations, he claims, would yield eight principles of international justice—the details of which need not detain us here—except to note that the sixth and eighth principles require that “Peoples are to honor human rights,” and already well-ordered peoples “have a duty to assist other peoples living under unfavorable conditions that prevent their having a just and decent political and social regime” (Rawls LP, p. 37). Rawls also emphasizes that the “aim of the Law of Peoples will be achieved when all societies have been able to establish either a liberal or a decent regime, however unlikely 8 In this version of the original position, “rational representatives” of peoples are “guided by appropriate reasons,” “situated symmetrically,” and do not know “the size of the territory, or the population, or the relative strength of the people … who they represent… the extent of their natural resources, or the level of their economic development.” Rawls, LP, pp. 32–33. Burdened Societies and Transitional Justice 373 Author's personal copy that may be” (Rawls LP, p. 5). As noted above, for the purposes of this paper, I take liberal societies to be those which approximate Rawls’ model of justice as fairness. By contrast, “decent peoples” are considered well-ordered even though they depart from the ideal model of a liberal society. Decent societies are organized around a particular (religious or secular) conception of the good, and place “duties and obligations on [their] members on the basis of this conception” (Moellendorf (1996) p. 144). John Tasioulas nicely characterizes their additional characteristics as follows: A decent society “has no aggressive aims in foreign policy and respects the political independence of other societies,” “it has a ‘common good idea of justice’ that secures the human rights of all its members, though not necessarily as extensively or as equally as they would be in a liberal society; its legal system imposes bona fide moral duties, beyond those arising from human rights, on all persons within its territory,” and “it affords its members a level of political participation that, although not democratic, suffices to underwrite meaningful collective political self-determination” (Tasioulas (2005), Note 6, p. 15). For simplicity I will assume that decent societies roughly resemble the example Rawls discusses, that is, I will assume that they are “decent consultation hierarchies.”9 Importantly, a decent society is only required to fulfill a minimal schedule of human rights, which includes an entitlement to the basic means of subsistence and physical security, a right to personal property, a right to “sufficient liberty of conscience to ensure freedom of religion and thought” and a right to formal equality understood as the requirement that like cases be treated alike (Rawls LP, p. 65). This minimal schedule does not include fully equal freedom of religion, freedom of speech, or the right to democratic participation. Burdened societies must take steps towards becoming (at least) decent societies, where this is possible. However, they are not required to proceed unaided. In the final section of Law of Peoples, Rawls explains that well-ordered societies have a duty to assist burdened societies so that they may become either liberal or decent. This duty is not an open-ended or ongoing duty of distributive justice. It is merely a duty to assist burdened societies up to the point where they become well-ordered. Thus, the duty has a “cut-off point” after which assistance may be discontinued. Rawls gives some general guidelines that should inform the way the duty of assistance is carried out. First he notes that, The levels of wealth and welfare among societies may vary, and presumably do so; but adjusting those levels is not the object of the duty of assistance. Only burdened societies need help. Furthermore, not all such societies are poor, any more than all well-ordered societies are wealthy. A society with few natural resources and little wealth can be well-ordered if its political traditions, law, property and class structure with their underlying religious and moral beliefs and culture are such as to sustain a liberal or decent society (Rawls LP, p. 106). Next he notes that when carrying out the duty of assistance, well-ordered societies should realize that burdened societies really need help changing their “political and social cultures” rather than simply help amassing more funds (Rawls, LP, p. 108). He cites Amartya Sen’s work on famines as evidence that lack of access to the means subsistence usually results from a failure of political and social institutions rather than mere lack of food or funds. While Rawls asserts that “money is often essential” he also maintains that merely 9 Technically not all liberal societies must endorse justice as fairness, and not all decent peoples will necessarily be decent consultation hierarchies. On Rawls’ account, these are each merely one of the possibilities within each category. (I thank Jon Mandle for bringing this point to my attention). 374 L.L. Fuller Author's personal copy “throwing funds” at the problem is “usually undesirable”, and that “there is no society anywhere in the world—except marginal cases—with resources so scarce that it could not, were it reasonably and rationally organized and governed, become well-ordered (Rawls, LP, pp. 108–109, 110, 108). Finally, well-ordered societies must not act paternalistically in carrying out their duty of assistance, since the goal is that burdened societies will become equals with other well-ordered societies and be able to freely manage their own affairs.10 Rawls locates his discussion of burdened societies within nonideal theory. However, it has been observed by Laura Valentini that Rawls only partially “enters” the nonideal world here. He gives up the assumption of favorable conditions but retains the assumption that there are some reasonably well-ordered societies in existence and that they will (at least sometimes) comply with their duties of assistance. He also seems to overlook the fact that the societies meant to be providing assistance might be implicated in worsening the condition of burdened societies in various ways, such as trading under an unjust international scheme of rules (Valentini (2009), p. 348). I agree with Valentini that failing to bring in these types of real-world considerations “distorts the reality of contemporary international relations,” (Valentini (2009), p. 348). Therefore, I will now attempt to describe the situation of burdened societies in a manner that reflects, at least to some extent, their characteristics and political position in the context of current international relations. It is my view that we will likely make more progress identifying satisfactory transitional principles if we at least try to describe burdened societies in a way that takes account of the kinds of injustices that commonly occur both within and between societies. Basically, in order to develop an account of transitional justice, we need to have some sense of what burdened societies look like in real life. Accordingly, for my purposes here burdened societies are to be understood as having (at least some of) the following sorts of difficulties and characteristics: & They are not aggressive toward other societies, and their governments do not deliberately violate or disregard the human rights of their people. Nevertheless, they do not presently have the ability to fulfill the human rights specified as necessary for becoming even a decent society. & Their economy, for various reasons having to do with technological expertise, lack of education, unfair international rules or agreements, etc., is not as strong as it could be. That is, they make some money but not enough to simply create government entitlements to fulfill the human rights that remain unfulfilled. & A good number of their citizens are very poor-they live at or below the $2-a-day international poverty line.11 Members of the same group are often illiterate and have little formal education. & The society is highly stratified, since there are also very wealthy, educated and powerful individuals within it. (I take this to be true of almost all societies). & Some (but not all) broadly liberal societies provide burdened societies with either bilateral, multilateral or NGO aid, which takes various forms: technical expertise on finance, governance and other policy issues, food, medical and educational programs, etc. However, these programs are only weakly regulated, and the terms are largely 10 Rawls, LP, p. 111. Also note that the use of force as part of an effort to assist burdened societies is ruled out since the societies providing aid are well-ordered and so do not act aggressively towards other societies. 11 The World Bank estimates that 2,561.5 million people lived below the $2 a day poverty line in 2005; As such, it is not an unreasonable assumption that most burdened societies would have a substantial percentage of people living at or below this line. See World Bank, “Prospects for the Global Economy” (2009) at http:// siteresources.worldbank.org/INTGEP2009/Resources/10363_WebPDF-01Chapter1-w47.pdf . Burdened Societies and Transitional Justice 375 Author's personal copy http://siteresources.worldbank.org/INTGEP2009/Resources/10363_WebPDF-01Chapter1-w47.pdf http://siteresources.worldbank.org/INTGEP2009/Resources/10363_WebPDF-01Chapter1-w47.pdf dictated by the donors. Here we are assuming that only some percentage of well-ordered societies will comply with the duty to assist burdened societies. This is one of the unfavorable conditions in which they find themselves. & Their society has its share of historically disadvantaged groups and so will have to contend with some (if not all of) sexism, racism, homophobia and discrimination against certain ethnicities or members of certain religions. & They may also have to contend with their members’ adaptive preferences, and/or corruption among civil servants, police officers and other people in a position to wield power over others. & They may have weak bargaining power in the international arena. & As in Rawls, they may not already have in place a legal structure guaranteeing the full and equal civil and political liberties that are in place in most liberal democracies. They may be proto-democracies (that is, they officially have the form of democratic government but their elections and other practices are not up to par). Alternatively, they could be proto-decent-consultation-hierarchies (in which they have a political system based on a particular conception of the good but that is also somewhat tainted by considerations of personal interest, say, among elites and the military). Here then, is a significantly more detailed picture of burdened societies than the one given by Rawls. What we now want to know is how such a society should approach the task of making itself more just. We shall suppose for the sake of argument that a particular society accepts that it must take steps toward becoming either liberal or decent (as set out by ideal theory). What should this society—including its government—do now? Is there anything general we can say about the way it ought to proceed? It is to these questions that I now turn.12 4 What Would Rawls(ians) Say? Rawls himself says relatively little on the subject of how a society should handle the transition from a less-just to a more-just condition. Much of what he does say appears in Theory of Justice, and so presupposes that the ideal to be reached is a liberal democratic society rather than merely a decent society. As we have seen, however, some burdened societies may only aim to become decent given their particular comprehensive doctrines. These considerations lead me to divide this section into two distinct parts. First, I will do my best to give a broadly Rawlsian account of transitional justice where the goal is to become a perfectly just liberal democratic society. Next, I attempt the same task where the goal is to become a decent society. In both cases I assume that the society begins as a burdened society, and so it has, roughly, the characteristics and difficulties described in the previous section.13 12 I do not mean to suggest that these questions are ones Rawls either did, or should have, addressed. They are not his questions, since he was mainly concerned with outlining a duty of assistance on the part of well- ordered societies. However, note that the answers to these questions must be part of a complete transitional theory, especially given that the duty of assistance is meant to be non-paternalistic and so its content must be in large part concretely determined by burdened societies themselves. (Many thanks to Steve Vanderheiden for this last observation). 13 Of course, transitions from a less-just to a more-just condition will be necessary for societies that are not “burdened” but are still unjust. Whether a society is burdened or not depends on the extent of the unfavorable circumstances in which it finds itself, particularly economically. Societies that are not burdened, but still have some injustices to correct, should be understood to be unjust societies in favorable conditions. 376 L.L. Fuller Author's personal copy 4.1 Transitioning to a Liberal Democratic Society The Rawlsian model of justice as fairness specifies that a perfectly just liberal democratic society is one where the basic structure is organized in conformity with the following two principles: 1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system for all [the Liberty Principle]. 2. Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged … [the Difference Principle] and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.14 The first principle is lexically prior to the second, and fair equality of opportunity is lexically prior to the difference principle. Further, for Rawls the “ranking of the principles of justice in ideal theory reflects back and guides the application of these principles to nonideal situations. It identifies which restrictions need to be dealt with first” (Rawls TOJ, p. 267). Clearly he thinks that guaranteeing the basic liberties should be the first priority of unjust societies. Reforms that restrict basic liberties are permissible, but only for the sake of liberty, which, on Simmons view, means that “restrictions on liberty are acceptable only if they are part of a process aimed at achieving the fullest possible societal justice” (Simmons (2010), p. 15). For instance, liberties such as free speech or association can be limited or made unequal if this is needed for the general order of society and the security of citizens, provided that these are temporary measures, and are aimed at the end of perfect justice. On Simmons’ interpretation, such temporary measures “do not really count as injustices” so long as they are “motivated by and directed toward” the correct end (Simmons (2010), p. 16). Thus, the priority of liberty is the main principle of transitional justice that Rawls spells out in Theory of Justice. However, Rawls also notes that “in the more extreme and tangled instances of nonideal theory… [the] priority of rules will no doubt fail; and indeed, we may be able to find no satisfactory answer at all” (Rawls TOJ, p. 267). Simmons comments that for those unlucky societies where social conditions are such that the basic liberties cannot be established, Rawls favors a more piecemeal or “relaxed” approach to transitional issues. Simmons observes, In this kind of case—Rawls appears to be thinking, primarily at least, of cases involving severe societal poverty—“one can concede their [i.e. rights] limitations,” but only where this limitation is “necessary to prepare the way for a free society by “raising the level of civilization” … In this case, Rawls suggests, society should be governed primarily by the general conception of justice, which lacks the lexically ordered principles of ideal theory, until it becomes reasonable, as a result of “improvement in economic well-being” to be guided by the two separate principles of ideal theory in their serial order. The general conception dictates that over the long run lesser liberties for all must benefit all, while unequal liberties must benefit those with lesser liberties (Simmons (2010) pp. 13–14). Rawls also allows that in such dire conditions, policies which violate fair equality of opportunity or depart from a system of equal basic liberties, “have the right form when they 14 Rawls, TOJ, p. 266. The basic liberties Rawls lists as “important” are the right to vote and hold office, freedom of speech and assembly, the right to bodily integrity and freedom from psychological oppression, freedom from arbitrary arrest and seizure, freedom of conscience and thought, and the right to hold personal property. Rawls, TOJ, p. 53. Burdened Societies and Transitional Justice 377 Author's personal copy claim … that the opportunities of the least favored sectors of the community would be still more limited if these inequalities were removed” (Rawls TOJ, p. 265). Some inequalities can be tolerated in very unfavorable conditions, provided that it makes sense to leave them in place from the perspective of the worst-off. Now, we might well think that on Rawls’ account burdened societies are extreme cases in which the priority of the liberty principle does not apply, and/or societies in which the basic liberties are not realizable. The problem with conceiving of burdened societies on this more “relaxed” model is that, as we have seen, Rawls thinks that virtually all existing societies have enough resources such that they can become well-ordered, and so must realize the most central liberties first where this is feasible (Rawls TOJ, pp. 217–218). Basically, while in Theory of Justice he admits the conceptual possibility of a society that could not effectively establish basic rights, in Law of Peoples he seems to suggest that there is no real society that is in so dire a condition. Of course, whether or not any society is sufficiently impoverished that it cannot effectively establish the basic rights is an empirical question. From a theoretical perspective then, the more “relaxed” approach remains an option for societies in this predicament. So it looks like burdened societies still must assign lexical priority to the basic liberties, at least when this is not completely infeasible. Presumably, where this is completely infeasible in a given set of circumstances, all possible “lateral moves” should be pursued that would put a burdened society in a position to apply the priority-of-liberty rule. This would mean that where a society can move from one unjust condition to another that is equally unjust but that opens up feasible reforms that would bring them closer to realizing the basic liberties, then they should do so. This is because the priority-of-liberty rule effectively establishes the “grievousness” of any particular injustice, and so the urgency with which a society should respond.15 Beyond what can be extrapolated from Rawls emphasis on the priority of the basic liberties, we are left with his three further requirements: that transitional policies and courses of action must be (i) morally permissible, (ii) politically possible, and (iii) effective. We are unfortunately left wondering both how we are to interpret each requirement, and how we are to weigh them against one another, since Rawls does not tell us. Of the three requirements, moral permissibility seems the most problematic to interpret. Simmons provides three plausible understandings: a. Policies are morally permissible when they do not require or condone clearly immoral acts by public officials in order to be instituted. b. Policies are permissible when they do not require a more grievous injustice to be instituted in order to remedy a less grievous one. c. Policies are permissible when they do not impose excessive costs or burdens on individual citizens in order to be instituted, as in the case where people suffer substantial losses because they have organized their affairs around the previous (less just) set of institutions and expectations (Simmons (2010), p. 21). It seems to me that a broadly Rawlsian account might endorse any and perhaps all of these understandings depending on the circumstances, and I will adopt these requirements as part of my own approach. It also seems that if we combine Rawls’ emphasis on the priority of liberty with the guidelines for assistance to burdened societies, we can infer that 15 By lexically ordering the principles, Rawls establishes that violations of the first principle are more grievous than violations of fair equality of opportunity or the difference principle, since the priority is based on the importance of liberties to deliberators in the original position. 378 L.L. Fuller Author's personal copy burdened societies will accept aid that will help them guarantee basic liberties, except when the assistance is paternalistic in nature, since this can undermine the point of the assistance. The difficulty here is that in a genuinely nonideal world, much assistance is likely to be paternalistic in nature, or at least have some paternalistic conditions attached to it. Thus, it looks like there is a tension between the requirement that a burdened society work to become more just domestically and the requirements of international justice. Farrelly argues that there are deep difficulties with a model that assigns lexical priority to the liberty principle, and I tend to agree with him. His main argument is that Rawls fails to take the fact of scarcity seriously. He notes that even in a reasonably well-off society, guaranteeing basic liberties could turn out to be “a never-ending aim” since it is possible for a society to allocate all their wealth to making streets and borders secure, ensuring food and drugs are safe, protecting citizens from police brutality, etc. (Farrelly (2007), p. 852ff). In essence, Farrelly observes that trade-offs will be necessary in every society, and so the lexical priority of basic liberties over opportunities and other social and economic entitlements is unhelpful. He also questions Rawls’ contention that trade-offs between liberties and social and economic advantages are impermissible even when the advantages go to the same individuals whose liberties are restricted. It certainly seems plausible that citizens in burdened societies might sometimes choose to have fewer civil liberties in return for more economic advantages, if trade-offs must be made. And there is no distributive difficulty here when it is the same individuals who bear the burdens and obtain the benefits. The problem here is that people may prefer to guarantee fewer liberties, or leave them less secure, in order to allocate funds to other areas, even when total funds are sufficient to guarantee all the basic liberties but not much else in addition. For many burdened societies, scarcity is likely to be a much larger concern than for societies in more favorable conditions. This means that it is more likely that there will be situations in which guaranteeing civil liberties leaves very few resources left over to institute the difference principle and fair equality of opportunity. As such, opting for the lexical priority of the liberty principle seems to unfairly disadvantage those people most likely to desire trade-offs in favor of more economic advantages, namely, the very poorest in society.16 A more flexible approach to both the kind of protections and benefits that will be prioritized as well as who will receive them seems desirable, given that there is no choice but to make difficult trade-offs. As such, assigning lexical priority to basic liberties does not seem like a viable overall strategy for burdened societies—given their unfavorable conditions—even if the society in question did aspire to become a liberal democracy. 4.2 Transitioning to a Decent Society As we have seen, some societies may not aspire to become liberal, but instead may merely aim to become decent, such that they may be admitted into the Society of Peoples. Since those in a decent society do not embrace a liberal conception of justice, but instead organize their society on the basis of a particular comprehensive doctrine and a “common good idea of justice,” they are not required to institute the full range of basic liberties. Hence, they also are not required to proceed towards their goal by prioritizing these liberties. Instead, they 16 To be fair, Rawls allows that “the first principle covering the equal basic rights and liberties may easily be preceded by a lexically prior principle requiring that citizens’ basic needs be met, at least insofar as their being met is necessary for citizens to understand and to be able to fruitfully exercise those rights” (Rawls (1996), p. 7). Rawls is not here recommending that people prioritize the protection of civil liberties over their very survival. Burdened Societies and Transitional Justice 379 Author's personal copy must work towards a situation in which they can guarantee the fulfillment of a minimal list of human rights (rights to subsistence and security, freedom from slavery, serfdom and forced occupation, freedom of worship, formal legal equality and the right to personal property), and are subject to the three requirements of moral permissibility, political possibility, and effectiveness (Rawls LP, p. 65). They must accept assistance in this effort, (when this assistance is not paternalistic), especially in changing their political and social culture, since Rawls claims that “the causes of the wealth of a people and the forms it takes lie in their political culture and the religious, philosophical and moral traditions that support the basic structure of their political and social institutions, as well as the industriousness and cooperative talents of its members” (Rawls LP, p. 108). The specific elements of the political and social culture he describes as crucial to a society’s ability to become both wealthier and more decent are as follows: the political culture and civic society of the country, it members’ probity and industriousness, their talent for cooperation, their capacity for innovation, and their population policy. Rawls admits that there is “no easy recipe” for providing assistance that will help a burdened society make the required changes, and so perhaps this is why he does not attempt to prescribe which human rights should rank highest in terms of priority. He also does not indicate how burdened societies should go about realizing their aims, although he observes approvingly that educating women has been shown to be a good, non-coercive way to institute population control (Rawls LP, p. 110). Rawls also agrees with Henry Shue that subsistence rights are basic, in the sense that the “sensible and rational exercise of all liberties … as well as the intelligent use of property, always implies having general all-purpose economic means” (Rawls LP, Note 1, p. 65). We might infer from this that guaranteeing subsistence rights should be the top priority for societies aspiring to become decent, which seems like a reasonable recommendation for burdened societies. This general approach to becoming a decent society can be summed up as follows: Starting with subsistence rights, a burdened society should implement effective policies in morally permissible ways that are ultimately aimed at fulfilling a minimal schedule of human rights for its people. It also should accept non-paternalistic assistance in this effort from well-ordered societies. This approach looks more promising for burdened societies than the former one. However, it may be Rawls’ position that beyond this point we simply have to employ our intuitions and arguments in reference to the concrete situation of each real society; Perhaps he would assert that there is nothing more that we can say, in general, about how burdened societies should make the transition to decent or liberal societies. I disagree. In the next section, I attempt to modify and flesh out this second approach in more detail. My hope is that this modified approach will provide resources for both prescribing and evaluating the transitional efforts of actual societies approximating the condition of burdened societies. A central advantage of the approach is that it will be able to provide some direction to the well-ordered societies carrying out their duties of assistance with regard to which societies they ought to support. Where not all burdened societies can be assisted (or at least not to the same degree), my account provides a guideline for identifying those societies that are not only moving in the right direction, but also doing so in the right way, and so are most worthy of outside assistance. 5 Transitional Justice for Burdened Societies: A Proposal The approach I sketch out here is arguably Rawlsian “in spirit” since Rawls’ notion of the “worst-off representative person” is key to the structure of the model. Before I can describe 380 L.L. Fuller Author's personal copy my approach in detail however, I need to explain how I think this notion should be understood in a nonideal context, and why. A difficulty for both accounts of transitional justice discussed above and also for many accounts of human rights is that they are too neat. No doubt for conceptual and explanatory purposes, they treat rights as distinct entities and assess injustice on the basis of the extent to which a society fails to fulfill each particular one. Even when it is recognized that guaranteeing a right entails both “negative” and “positive” duties (such as setting up social institutions) this kind of approach leads us to think of rights as separate from one another in an artificial and misleading way. 17 This merely conceptual separation, in turn, causes us to think in terms of fulfilling human rights by first completely fulfilling the most morally important right (or set of rights), and then the next most important, and then the next, and so on. The problem with this is that injustice is not typically experienced and embodied as a set of distinct rights violations or lack of rights fulfillment, each one having little influence on the others. Instead, a victim of injustice is usually subject to a confluence of factors that produce a very particular condition of vulnerability. It is often observed that when human rights are fulfilled they are mutually reinforcing, and so it stands to reason that injustices are too. It is also not news that the way a black woman experiences poverty in a racist and sexist society is not the same as the way a white man experiences it. Nevertheless, I think the significance of these observations for a theory of transitional justice has not been properly appreciated. Paul Farmer suggests that insofar as we are concerned with alleviating injustice, we need to “identify the forces conspiring to promote suffering, with the understanding that these are differentially weighted in different settings” (Farmer (2010), p. 344). He furthers asserts that if we can identify these forces, then “we stand a chance at discerning … the forces that put some at risk for human rights abuses, while others are shielded from risk” ” (Farmer (2010), p. 344). The notion of multiple, intersecting “vectors” of injustice is illuminating. The forces, or vectors that he specifically mentions are: race or ethnicity, gender, poverty, immigration status (such as refugees, illegal aliens or stateless people), and sexual orientation.18 He notes that being subject to more than one such vector increases a person’s overall vulnerability, and those people who are not subject to them have certain characteristics that serve a protective function. For instance, being white can protect a young male from being regularly stopped and searched (for largely opaque or spurious reasons) by the police in most US cities. Even if a white man is identically placed with respect to other characteristics (such as income level) his whiteness serves to protect him from this particular sort of injustice. Farmer argues that no single factor can fully capture the level of vulnerability of a particular person. Poverty, for instance, might cancel out many of the protective effects of characteristics such as being of the dominant race, religion or sexual orientation in your society, but these factors are still relevant to where you are located within the social hierarchy. So how are these vectors of injustice relevant to issues of transitional justice? This understanding of how injustice manifests itself suggests that we need to alter the way we think about the worst-off person in a burdened society. What we need is a nonideal account of the “worst-off representative person.” First, we should recall that the society in question 17 In his classic book Basic Rights: Subsistence, Affluence and US Foreign Policy (1980) Henry Shue argues persuasively that the distinction between negative and positive rights is neither sharp nor significant. 18 Clearly there are vectors other than these. Also, “vector” is my terminology. Farmer prefers the term “axis”. He also cites some material from liberation theology in this connection, but it should be understood that I am not invoking that tradition here. See Farmer (2010), pp. 337–341. Burdened Societies and Transitional Justice 381 Author's personal copy is already highly stratified, and so there are people highly placed in the social hierarchy whose human rights are already fulfilled due to the protective characteristics they possess, such as great wealth, political influence, a good education, etc. Next, rather than understanding the worst-off representative person—as Rawls does in Theory of Justice— as someone whose basic rights are, in large part, already guaranteed but who must authorize any departures from equality in the social and economic realms, instead we should understand the worst-off person as the person who is living at the intersection of the most numerous/weightiest vectors of injustice in her society. This is the person (or group of people) whose unfulfilled rights should structure efforts to make the society more just. By identifying this representative person, we identify the problems that should be prioritized, since these people are suffering the most from injustice. And in a society where trade-offs must be made, policies should be organized with a view to eliminating the difficulties that typically threaten the lives and livelihoods of the worst-off people. In particular, policies should be organized such that the common threats and difficulties that distinguish them from the next-worst-off group should be the first problems that are tackled in the context of very limited resources. My suggestion here is that transitional justice requires burdened societies to prioritize a group of people and their urgent, concrete vulnerabilities, rather than their “rights” in some abstract and comprehensive sense. Clearly, much social scientific work will be needed in order for the relevant vectors in any particular society to be correctly identified and weighted. But once we see that groups of people within each burdened society can be ranked from the worst-off to the best-off on the basis of how they fare with respect to the vectors, then we can see whose lives are the most marred by adverse events that occur due to the mutually- reinforcing multiple injustices that they suffer. And we can propose solutions to their problems that take account of the fact that multiple rights violations are experienced by people as a single condition—a condition in which they are exposed to various harms and setbacks for a host of related reasons. Consider the following example: “B” grows up in a rural area, where most people engage in subsistence farming for a living, but the yields are not adequate to support everyone in his family. Once he is a teenager he moves to the city to find work and to relieve his family of the burden of providing for him. However, since he belongs to a minority group that is not universally accepted by employers of a different ethnicity, and because has no formal education, he is only able to secure a very low-paying job. This means he must live in a shantytown or slum outside the city center, where he does not have to pay rent. But since he is, legally-speaking, a squatter on the land where he lives, he is subject to repeated harassment and abuse by the police.19 This, in turn, causes him to miss work sometimes and to be unwell. He is then not always able to make enough money to purchase food that can provide adequate nutrition, which makes him worse-off still… Assume for the sake of argument that B is part of the worst-off group in his society. We can see that there are many ways in which his life can be made more secure from physical abuse and injury, and his ability to provide for his own subsistence can also be improved (by for example, making his living arrangements legal). We can also see that solutions to those problems that are specific to people in the worst-off group are not going to require that the society institute a comprehensive system of protections against assault, hunger, sickness etc., since many people in his society are already protected from these threats anyhow. Solutions to B’s specific set of vulnerabilities should be tailored to the risks that 19 Many of the global poor rank ending police brutality and harassment very highly on a list of improvements they would like to see in their lives. See Narayan et al. (2000), pp. 35–36 and 27. 382 L.L. Fuller Author's personal copy those in his group actually face. This means that these solutions will not necessarily require fully guaranteed rights in the sense set out by Shue, in which a right is only guaranteed when the relevant agents have fulfill the following three kinds of corresponding duties: (1) the duties to avoid depriving someone of their right, (2) duties to protect from deprivation, and (3) duties to aid those who have been deprived of the exercise or object of their right (Shue (1980), p. 52). Instead, sometimes a given source of vulnerability can be most effectively, and/or most feasibly be eliminated or substantially diminished by instituting a policy that does only one (or two) of the three. This is the correct strategy in terms of effectiveness because the way to genuinely improve the circumstances of the worst-off representative person is by taking a holistic approach, that is, by instituting policies that are aimed at the set of factors which make him worse-off than the next-worse-off representative person. Simply securing one right in full leaves this person open to it being sabotaged by the difficulties and adverse events correlated with other rights violations. For example, say a society-wide policy of improved policing and other measures are put in place to guarantee everyone’s security of the person, or freedom from physical assault. If someone cannot find work and must resort to illegal activities (prostitution, selling drugs, trafficking in stolen goods) in order to survive, then that person’s vulnerability to physical assault (from pimps, rivals, etc.) is simply “driven underground” rather than eliminated. This demonstrates why policy-makers should take a coordinated approach to making the worst-off group better off, which means doing what is necessary to bring the worst-off people up to the level of the next worst-off group. Of course, once this has been accomplished, it will be necessary to begin addressing the problems of that group, since its members are now the worst-off (and so on up through the social hierarchy). I should emphasize at this point that when I suggest that policies should address the common threats and difficulties experienced by the worst-off group of people, I do not mean that they should somehow be protected from all possible threats and vulnerabilities. Instead, I have in mind a notion similar to Shue’s notion of “standard threats,” which he defines as “ordinary and serious but remediable” (Shue (1980, p. 32). Protecting someone from “standard threats” according to Shue, is a matter of providing social guarantees (in the form of policies, legislation and social programs) that vastly reduces or eliminates their vulnerability to predictable difficulties that are susceptible to determinate (and not unreasonably costly) solutions. He rightly observes that no one is entitled to protection from “every conceivable threat,” or “ineradicable threats” such as untreatable serious illnesses, accidents, or death, since this would be impossible.20 What count as standard threats for any particular group will be determined by social scientific study, but these threats will no doubt show up in answer to questions such as: “What are the common causes of death in this group?” and “How do members of this group typically become deprived of the means of subsistence?” Having set out the basic framework, I can now comment on its justification. If we consider Rawls’ requirement that transitional reforms be morally permissible, we can see that prioritarian arguments give this approach a solid moral grounding. Dennis McKerlie characterizes prioritarianism as follows: [Prioritarianism] holds that, at least in general, badly off people have stronger claims than better off people. … It does not claim that as a general rule we can give the 20 Shue also notes that the “mixture of the analytic and the empirical in an element like standard threats is obviously difficult to characterize with any precision. …But which threats are pervasive, which are serious, and which can feasibly be resisted must be discovered from particular situations,” (Shue 1980 Note 22, p. 184). Burdened Societies and Transitional Justice 383 Author's personal copy 384 L.L. Fuller badly off larger benefits, it claims that benefits for them are morally more important than benefits for better off people. So this view can say that it is more important to give a smaller benefit to someone badly off than a larger benefit to someone better off (McKerlie (1994), pp. 25–26). Not only is it morally permissible on this view to help the worst-off, it is morally more important to do so. Provided that the reforms do not call for the unjustified use of coercive force for their implementation, it is plausible to think that addressing direct harms to the worst-off that result from injustice is a morally sound method by which to tackle injustice generally, since inevitably some criterion must be used to prioritize reforms. For those not persuaded by a prioritarian view, there is an alternative justification to consider. We can imagine a kind of nonideal “original position” in which all the facts about a real burdened society are known to the deliberators, but they remain ignorant of the characteristics they will have once they join the society. If asked—before being transformed into the selves they will be in society—which injustices they would choose to remedy if they could not remedy them all, a maximin strategy would suggest that they would choose the injustices that affect the worst-off people, since they could turn out to be those people. Even if the improved condition of those people is still not very good, they will probably prefer to minimize risk, since the risks to the worst-off people in a burdened society are very great, and they include many risks to survival itself. Finally, this model conforms to the requirements of moral permissibility introduced earlier, since it starts with the most grievous injustices—understood as the condition of injustice the worst-off experience as a result of the intersecting vectors to which they are subject. In addition, the holistic nature of the approach allows for the worst-off to be “lifted up” to the level of the next-worst-off and so there is no danger of one group being subject to a more grievous injustice in order to rectify another group’s unjust condition. Further, in this model the best-off members of society bear the greatest burden, in the sense that they will benefit the least from reforms and will wait the longest for reforms that benefit them to be instituted. This is as it should be, since members who are located near the bottom of the social hierarchy already bear the heavy burden of diminished welfare and liberty, relative to those at the top. By contrast, one might imagine a transitional process in which a burdened society becomes more just by first guaranteeing the rights it is easiest to guarantee, namely those of the middle and upper classes, after which they make slow incremental gains in securing some rights to the bottom economic quartile of society. Such a society, even if it were to ultimately become just or decent by such a process, would not have arrived there in a transitionally just manner, since it placed the burdens of transition on those who were already the most vulnerable. The general justification for my approach is further supported by additional arguments pertaining to feasibility, cost and path dependence. Clearly reforms need to be politically and practically feasible in order for them to be implemented. It wouldn’t make sense to require that a given society implement policies aimed at the difficulties of the worst-off, if these policies were genuinely impossible to implement at particular time. This situation could arise either because the reforms have no popular support or because political disagreement among factions has reached an impasse. However, it seems implausible that all available methods of addressing all the vulnerabilities of the worst-off group will be blocked by these kinds of circumstances. Certainly creativity will be vital for generating political agreement and garnering support for programs from citizens. And in cases where a given Author's personal copy problem cannot be addressed in the short-term, it must be considered an ongoing priority in the long term, and so should be addressed when better circumstances are in place. Moving on to cost issues, the model requires that funds be directed first towards those difficulties that distinguish members of the worst-off group from the next-worst-off. Clearly it makes the most sense to choose those that are also least costly to solve, since this is more efficient, but cheaper coercive measures should not be favored over non-coercive ones purely for this reason. Policies that do not seek to coerce members of the worst-off group are to be strongly preferred because they are already so vulnerable to those who are more powerful that it is unreasonable to subject them to more risk of abuse. In any case, policies that require immoral conduct (such as unjustified coercion) on the part of officials are already ruled out. The question everyone wants answered when discussing the start-up and maintenance costs of transitional policies and programs is “Where will all the money come from, when we are discussing a society that has a substantial group of very poor members?” This question often leads people to suggest that what is needed is a “growth-led” policy, in which growing the economy is made the priority, and transitional policies are put-off until a society is richer overall and so can afford to roll out large, expensive programs. This strategy typically also recommends de-regulating trade, labor standards, and offering other incentives in order to attract foreign investment. While there is some reason to think that it is not necessary to put-off reforms in order to first generate funds, even without resolving this controversy we can say that any foreign aid that a burdened society receives can be used in a manner consistent with the model. This would mean, however, that foreign aid which was offered with conditions that would cause additional difficulties for the worst-off group would have to be rejected or re-negotiated in order to accord with this notion of transitional justice. This is likely to be a “sticking point” for some well-ordered societies since they most likely do not wish simply to aid the burdened society but also to take advantage of the cheap labor or other conditions prevailing there in order to make money themselves. But such exploitative international practices would not help a given society to reach its goal of becoming decent, and so it is not morally permissible to accept such offers. Additional funding for reforms could come from taxation of wealthy members of the society, and from NGOs. This will require burdened societies to monitor NGOs and approve the content of the work they seek to do before they do it. This monitoring will itself be a cost, but it will also allow the government of a given society to serve a coordinating function for NGOs within its borders that is sorely lacking in the aid system overall. This lack of coordination is one reason that NGO aid has not historically been as effective as expected, and so taking a holistic approach to serving the worst-off may also create overall efficiency gains for NGO aid. Finally, a note on path dependence: Even someone well-disposed toward the general account I have put forward might wonder whether the path of reform it recommends will lead burdened societies towards either decency or liberal democracy in the long run. A critic might suggest that while my approach seems justifiable in the short-run, a piecemeal, bottom-up model of this kind is unlikely to result in anything approximating the standard of decency or the model of perfect justice. Instead, it might result in a society getting “stuck” in a second-, or third-, or fourth-best condition with no further routes for improvement. In response to this concern, I will first observe that such claims are highly speculative and imprecise. I have difficulty conceiving of what it would mean for someone to “know for sure” that a given path of reform could never lead to the chosen end-point (whatever it is). It is also difficult to understand how we could know that of the very many routes that could lead to the chosen end-point, that not even one would approximate the model I have Burdened Societies and Transitional Justice 385 Author's personal copy endorsed. But supposing that we could know this, I think my approach might be defended on the grounds that one of the reasons we care about justice is that we care about how well- off people are, and this approach puts the right people first. In addition, it matters very much how close we could come to the desired end-point while at the same time prioritizing the worst-off. If we could come reasonably close, then this might well be better all things considered than achieving perfect justice or decency at the expense of those whose lives are already collapsing under the weight of multiple injustices. 6 Conclusion I have attempted two distinct tasks: (i) to re-construct Rawls’ conception of transitional justice in both Theory of Justice and Law of Peoples, and (ii) to expand and modify the latter conception in order to apply it to burdened societies. I have also introduced the notion of multiple, intersecting “vectors” of injustice in order to generate an account of the worst- off representative person for nonideal theory. While this notion is no doubt relevant to all societies that are not perfectly just, it seems to me it is especially crucial for charting a defensible course towards a more just condition for those societies that must begin this process in unfavorable circumstances, such as extreme scarcity of resources, pervasive corruption, deeply rooted prejudice and discrimination, and severe social inequality. Acknowledgements I am grateful to audiences at both the North American Society for Social Philosophy Conference (July 2010) and the Rocky Mountain Ethics Congress (August 2010) for their excellent feedback. I would also like to thank Steve Vanderheiden, Helga Varden and Jon Mandle for their detailed and insightful comments on earlier drafts of this article. References Farmer P (2010) On suffering and structural violence: social and economic rights in the global era. In: Saussy H (ed) Partner to the poor: a Paul Farmer reader. University of California Press, Berkeley, pp 328–349 Farrelly C (2007) Justice in ideal theory: a refutation. Polit Stud 55:844–864 Gilabert P (2008) Global justice and poverty relief in nonideal circumstances. Soc Theor Pract 34:411–438 McKerlie D (1994) Equality and priority. Utilitas 6:25–42 Moellendorf D (1996) Constructing the law of peoples. Pac Phil Q 77:132–154 Narayan D et al (2000) Voices of the poor: crying out for change. Oxford University Press for The World Bank, New York Phillips M (1985) Reflections on the transition from ideal to non-ideal theory. Noûs 19:551–570 Rawls J (1996) Political liberalism. Columbia University Press, New York Rawls J (1999a) Theory of justice, Revised Edition. Harvard University Press, Cambridge Rawls J (1999b) Law of peoples. Harvard University Press, Cambridge Robeyns I (2008) Ideal theory in theory and practice. Soc Theor Pract 34:341–362 Sen A (2009) The idea of justice. Belknap, Cambridge Shue H (1980) Basic rights: subsistence, affluence and US foreign policy. Princeton University Press, Princeton Simmons AJ (2010) Ideal and nonideal theory. Phil Pub Affairs 38:5–36 Sreenivasan G (2007) Health and justice in our nonideal world. Polit Philos Econ 6:218–236 Sreenivasan G (forthcoming) What is non-ideal theory? In: Williams M, Elster J (eds) Transitional justice. New York University Press, New York. Tasioulas J (2005) Global justice without end? Metaphilosophy 36:3–29 Valentini L (2009) On the apparent paradox of ideal theory. J Polit Philos 17:332–355 386 L.L. Fuller Author's personal copy Burdened Societies and Transitional Justice Abstract Introduction Notes on Non-ideal Theory Burdened Societies What Would Rawls(ians) Say? Transitioning to a Liberal Democratic Society Transitioning to a Decent Society Transitional Justice for Burdened Societies: A Proposal Conclusion References 
work_6l53i65qvnf47ltk45xn5vrvfa	----	AMS Skip to main content Menu AMS Open Search Close Search Search the site: Main navigation (extended config) Academics+ Program Learning Outcomes Major Minor Current Course Offerings Academic Year Course Offering AMS Program+ Why be an AMS Major? Alumni People+ Faculty Lecturers Emeritus Faculty Staff Student+ Advising Emphasis Plan Senior Capstone Internship Prizes Transfer Students Letters of Recommendation Resources for Students AMS AT 50+ American Studies at UC Davis: Breaking Down Walls for 50 Years CAREN KAPLAN RETIREMENT SYMPOSIUM         Welcome! Founded during the 1968-69 school year, American Studies Department at UC Davis stands apart as the only department of its kind in the University of California system. In its 50 + years on campus it has been dedicated to creating an interdisciplinary space for students to connect their personal curiosities and concerns to broader public issues, histories, and materials.  What is American Studies? When you hear the phrase "American Studies," you might think of classrooms decked out in red, white, and blue; classes that feel just like your 10th grade U.S. history class; and images of Uncle Sam and Captain America. If you walk through our wing on the second floor of Hart Hall, you'll see that's not the case. The American Studies Department at Davis (AMS at UCD) looks at American culture as a compilation of things that can be questioned and analyzed. And it uses many lenses to understand the complicated, messy, and diverse lives people live in both in the United States and in an interconnected world. As an interdisciplinary department, AMS at UCD pulls from several disciplines (history, literature, environmental science, food science, sociology, and more) to explore phenomena in and related to U.S. culture. The faculty study food, prisons, the environment, artificial sweeteners, music, militarized culture, and much more. Each of them asks questions and teaches classes to help all of us make sense of the world we live in. So, in American Studies classes at Davis, you'll find folks asking questions about drones, thinking about the boom of diversity in comics, studying the California rodeo, analyzing the role of gossip in specific communities, wondering what needs to happen to save our planet, how to tie social science justice and academic research, and more.  Why study American Studies at Davis?  AMS at UCD has spent the last 50+ years grappling with questions of American-ness. The department isn't afraid to shy away from the personal and the political. You'll find that many of our faculty study topics that are near and dear to their hearts. AMS at UCD is a place for rigorous study and "making sense" of what's important to you. It's a place to ask big (and sometimes hard and scary) questions to better understand the world. American Studies Association Statement on BLM & Rebellion of 2020 Asian American Studies Association Statement on Atlanta Why be an American Studies Major? Our alumni are now lawyers, teachers, social workers, urban planners, marketing professionals, software engineers, filmmakers, professors, professional writers (and comedians) and non-profit staff and leaders. If this appeals to you, you might fit well in our community. If you have questions or curiosities about the diverse cultures that make up the U.S., AMS at UCD might be for you. If you want individualized attention, a major that lets you explore multiple disciplines, and the chance to study topics that are important to you, take a class with us or reach out to our major advisor and our undergraduate faculty advisor.  Contact Us Visit our advising office at 1203 Hart Hall (First floor). Closed due to COVID-19. Email general inquiries to ams-advising@ucdavis.edu. To contact individual faculty, see faculty listing. Call the American Studies office at 530-752-6429. Social Media Links Main Office 1203 Hart Hall (First floor) University of California, Davis  One Shields Avenue  Davis, CA 95616  Contact Us Visit our advising office at 1203 Hart Hall (First floor).  Email general inquiries to ams-advising@ucdavis.edu. To contact individual faculty, see faculty listing. Call the American Studies office at 530-752-6429. Join our Facebook group for news and announcements. Admin Links Login Webmaster UC Davis College of Letters and Science | Social Sciences and Humanities Building | 530-752-0394 University of California, Davis, One Shields Avenue, Davis, CA 95616 | 530-752-1011 Questions or comments? Privacy & Accessibility Principles of Community University of California Sitemap Last update: March 22, 2021 Copyright © The Regents of the University of California, Davis campus. All rights reserved. This site is officially grown in SiteFarm. 
work_6l74bfvwkbg3llgqdjpfjcthdu	----	CULTURE AND SOCIETY After Madoff: Waiting for Justice Lionel S. Lewis Published online: 27 January 2011 # Springer Science+Business Media, LLC 2011 This essay examines how Madoff’s victims adapted to their suddenly diminished financial security, status, and self image after learning that they had been swindled. The primary foci are: (1) What they were thinking and feeling about their changed circumstances and (2) How they were coping with them. To best answer these and other questions, during the summer of 2010—approximately a year after Madoff was incarcerated—letters and e-mails were sent to all but seven of the initial list of 167 victims asking for up-to-date descriptions of family, financial, and health challenges they had encountered, had overcome, and were still facing. Some victims, when it seemed appropri- ate, also were asked to comment on the activities of other victims whom they knew, had read about, or in other ways had heard about since Madoff was arrested. Forty-two individuals or couples responded favorably to the request to participate in this phase of the study, and an additional eight responded but declined to provide addi- tional information beyond what had already been gathered. Moreover, 14 of the 42 were interviewed, seven one time, four twice, and three thrice. Thirteen of the 167, along with 16 other individuals, contributed a brief memoir to a volume of essays, letters, and poems put together in 2010 by a group of Madoff victims and family members, and what the thirteen wrote was utilized to supplement information previously provided by them or otherwise collected for their files. As an interpretive framework, Erving Goffman’s observations about the social processes that come into play for placating those who have suffered a loss, who have been cheated or who may feel cheated or in other ways disappointed, are used. “On Cooling the Mark Out” In one of his highly original essays, “On Cooling the Mark Out,” Erving Goffman first turns his attention to crime and its victims, particularly those taken in by a “confidence man” (or woman or gang) and by their need to adjust to their loss—to the realization that they had actually been deceived and cheated. Of particular relevance, Goffman notes that “the con [the swindle] differs from politer forms of financial deceit in important ways. The con is practiced on private persons by talented actors who methodically and regularly build up informal social relationships just for the purpose of abusing them; white-collar crime is practiced on organizations by persons who learn to abuse positions of trust which they once filled faithfully. The one exploits poise; the other position.” It is immediately apparent why Goffman’s insights prove especially valuable in framing and understanding the information provided by Madoff’s victims about what they thought, felt, and did in the aftermath of experiencing their loss and disappointment. Since loss and disappointment are part of the human condition, the true significance of Goffman’s essay is, of course, that the themes he explores go far beyond those who have been cheated in a confidence game. His insights help further our understanding of those who have a grievance about any loss and disappointment. This would include those victimized because of their actions or because of the actions of others who also may have been taken in. Goffman contends that the con is “a good racket in the United States only because most Americans are willing, nay eager, to make easy money, and will engage in action that is L. S. Lewis (*) 17 Morningside Lane, Williamsville, NY 14221, USA e-mail: soclsl@buffalo.edu Soc (2011) 48:159–173 DOI 10.1007/s12115-010-9412-5 less than legal in order to do so. The typical play has typical phases. The potential sucker is first spotted and one member…arranges to make social contact with him. The confidence of the mark is won, and he is given an opportunity to invest his money in a gambling venture which he understands to be fixed in his favor. The venture, of course, is fixed, but not in his favor. The mark is permitted to win some money and then persuaded to invest more. There is an ‘accident’ or ‘mistake’ and the mark losses his total investment.” The Robert Redford-Paul Newman movie The Sting (inspired by real-life events) with all of these elements—the quest for easy money, the bait with the promise of a sure win, the ruse to gain trust, and the loss of everything due to a misunderstanding— portrays perfectly how a con works. Madoff’s Ponzi scheme, since it began sometime after the 1973 release of The Sting, might be looked at as life imitating art. Although as inventive, complex, and typical, it proved far less entertaining. Goffman also notes that sometimes a mark is not prepared to accept a loss, and may feel moved to complain to authorities. In order to avoid such adverse publicity, an additional phase “is sometimes added at the end of the play. It is called cooling the mark out.” Although the reaction of anyone who has been swindled is unpredictable, con men depend on their “grift sense” to tell them roughly what an individual’s reaction will be. Will he cry or complain? Will she do something ridiculous? Maurer has written that “some marks are tough and can cause plenty of trouble if they get out of hand. Some are well-bred and take their medicine like men. Laughing marks are usually considered the most dangerous…. Some marks are mean, grasping, and cunning.” “It is easy for the layman to understand,” Maurer adds, “why some marks blow up when they realize that they have been trimmed [cheated]. If these marks are not properly cooled out, they may get the mob into serious trouble….” At the same time, “many of them [marks], realizing or suspecting that they have been swindled, immediately cause trouble, and all the ingenuity and persuasiveness of the inside man is required to prevent serious repercussions; sometimes all that fails and the con men are indicted. But not very often, considering the large number of marks who are beaten.” To minimize repercussions, it is obviously worthwhile to make an effort to cool the mark out. However, besides the short court trial, where a handful of victims were briefly permitted to crush Madoff verbally and to listen to the sentencing judge do the same, this element was missing in the months following his arrest, when his victims were most unsettled. There was little to keep the anger of Madoff’s victims, the marks, “within manageable and sensible proportions.” In short, there was insufficient consolation and very obviously this exacerbated an already unacceptable situation. It would not have surprised Goffman that very few of Madoff’s victims were willing to accept their loss. Almost immediately, a number were busy challenging individuals and institutions which they believed were not sufficiently engaged in working on their behalf to overturn the damage caused by Madoff, and which fell short of adopting their world-view. As time passed, more joined their efforts. The majority who became active in pressing their case stayed active; in the first year the involvement of only a few flagged. From the beginning, the victims’ situation was untenable given that a number of those who had invested with Madoff were convinced that: (1) They were privy to inside information (Hadn’t a bridge partner or someone in their golf foursome told them their investment was a sure thing?); (2) They were entitled—a view that the successful careers of so many of them made plausible and readily acceptable; (3) They were smart, a belief so many middle class American hold about themselves; (4) They could not lose (after all, their cousin’s niece was building quite a nest egg with Madoff, and she was not yet 40 years old.); (5) They were deserving. In fact, an incredibly large number described themselves as “frugal” and “hard-working,” an assessment sometimes, but not always, borne out by their biographies: We lived simply, in an apartment while putting money aside to purchase a future home. Since I was not an earner, I contributed by taking on responsibilities that would have cost money. So I did all the housework, cleaning and polishing, washing and ironing, hem- ming and altering plus I gave up personal expenses like beauty parlors and bought only inexpensive clothing. We drove used cars, camping was the way we vacationed. I set up a tiny section of our bedroom for a studio and snatched little bits of time to paint. Also my sense of community responsibility, inherited from my parents, was always with me. School issues became a major concern and soon I became president of a very large, active PTA. I called a conference where we determined the books in elementary schools did not reflect the diversity of our city. As a result the books were rewritten. And we achieved that goal. That was just one of the many worthy projects to which I gave time. (Client #28) We didn’t live with millions of dollars. We lived with people like ourselves—middle class people who worked damned hard to earn a buck. (Client #123C) It is hardly surprising that some dropped their usual defenses which had heretofore protected them and their families from being victimized in matters small and large. As a result, all lost a significant amount of their savings; a 160 Soc (2011) 48:159–173 number reported they were left penniless or, as they saw it, nearly penniless. On top of this, they had no protection from media-fueled second guessing and ridicule from friends, acquaintances, and strangers. A few, but only a few, began to see what those who had not suffered a loss at the hands of Madoff saw, namely, that perhaps they were not as shrewd or smart as they had thought, but simply marks in a very large, long-running, and, for them, invisible con game. The situation was continually made much worse by the probing media, or from media which mindlessly echoed their self serving and sometimes erroneous claims while drowning out voices that might otherwise have helped cool them out. In fact, a small number seemed to be vying to see how often they could be interviewed by a television or newspaper reporter. (See Appendix for an example of a joint television interview of nine victims, seven of whom were from the initial list of 167, covering myriad issues.) They did not have, as they had convinced themselves, an inside track on safely and profitably invest- ing. Some, if not all, self images surely suffered. The absolute necessity that they be consoled, that they be “cooled out,” was immediately evident, but it rarely happened. After the swindle in The Sting, the mark is quickly hustled out of the fake betting parlor by a police officer, being told that it is better to lose a substantial amount of money than to become fodder to the press or even to become implicated in a double homicide. However, for Madoff’s victims there was no social mechanism, no representative of the law or government to perform this function. Some government agency might have done so, but none did. On the contrary, the staff of the SEC, which may have served this function, had with each passing week revealed how hapless and dysfunctional it had become. Moreover, the trustee who represented Madoff’s estate and the SIPC made a number of decisions with which most victims vehemently disagreed. On top of that, the courts supported the trustee’s interpretation of the law and his actions. Finally, the government sometimes seemed to go out of its way to wrong victims. Client #23 reports, for example: “We filed a claim with the IRS for a refund due to a theft loss and received a refund of $30,000 for a 5-year period which was great, but then they decided to audit us for the theft loss and said they want the money back until they can determine if the Madoff claims are truly a theft loss…. So we are working that out now…. The IRS believes that the money still exists (per our IRS agent information) and given that they are contesting most of the refund claims, we are told.” Goffman reminds us that it is a mistake in a con game to account for the greatness of anger by the greatness of financial loss: “In many cases, especially in America, the mark’s image of himself is built up on the belief that he is a pretty shrewd person when it comes to making deals and that he is not the sort of person who is taken in by anything. The mark’s readiness to participate in a sure thing is based on more than avarice; it is based on a feeling that he will now be able to prove to himself that he is the kind of person who can ‘turn a fast buck’.” At best, their loss and disappointment only proved to Madoff’s victims that they were no wiser than they were decades earlier, that they had not been taught or learned a great deal over the years. “Why should I suffer any loss?” Client #31A asked. “It might not seem like a lot, and I can earn it all and more back in less than 2 years, but it was mine and not Madoff’s to buy another house with.” Client #86 concurred: “It’s not the money, which is no big thing, but the principal (sic). It [the loss] isn’t going to make us change how and where we live, but I still intend to get every dollar back no matter how long it takes.” It is hardly surprising that not only were there few if any victims of Madoff who would share Goffman’s (or a career con man like “Yellow Kid” Weil’s) conclusion that some of them might have been a little too eager to make money and that was why in the end they lost it. Instead, many victims became infuriated at even the suggestion that they may have done anything which had contributed to their financial losses. When it was suggested to Client #97B that the victims not only did not want to take any responsibility for their financial losses, but believed in their complete innocence, he indignantly wrote: “You are completely clueless as to why we feel the way we do, and in many cases your description of the victims is so completely wrong and demonstrates your ignorance and misperceptions of the history of Madoff.” He, not unexpectedly, refused to participate further in the study. Actually, there were many as deeply hurt and suspicious after the loss of all or a large percentage of their economic security. (Client #97B, whose investment in the Ponzi scheme was largely from his professional earnings, “lost $3 million to Madoff.”) After such a searing experience, it is surprising that any were willing to participate in the study or be interviewed, although one journalist reported that “once word got out that I was going to write an article about the Madoff mess, my cell phone never stopped ringing. Victims I hardly knew wanted to tell their stories, vent their anger, get revenge.” Challenging the SIPC Even in light of the many bruised egos and small amount of help from government sources, the degree of suspicion about the motives of the public face of the federal government, the SIPC and the trustee, seemed excessive. In the expression of anger here nothing was out of bounds. Soc (2011) 48:159–173 161 In spite of the amount of time they spent, the economic and psychological costs incurred, and the complete lack of success in their efforts, the victims assaulted the trustee at every turn. The crux of the feud with the SIPC and the trustee was a disagreement about the meaning and interpretation of the Securities Investor Protection Act (SIPA) of 1970 (and its 1978 amendments). First, Madoff’s victims believed that they had insurance against losses. However, a court decision in 1975 ruled that the SIPC is not an insurer, nor does it guarantee that customers will recover their invest- ments which may have diminished as a result of, among other things, market fluctuations or broker-dealer fraud. This was the trustee’s position. Second, most of Madoff’s victims—those who invested directly with him and those who invested indirectly with him through a feeder fund— held that they were entitled to SIPC benefits. However, court decisions have held that Congress intended SIPA to protect only those who entrusted property directly to a broker, specifically. The only type of investor who qualified as a customer of a broker-dealer was an investor who paid cash directly to a broker-dealer. Indeed, one court decision pushes this definition further, stating that individuals who unwittingly invested in a Ponzi scheme by issuing checks payable to anyone other than to the failed broker, were not customers within the meaning of the SIPA. This was the trustee’s position. In a court filing, the SIPC held that to be truly a Madoff customer, an investor must have had a securities account with him or had cash or securities with him with the reasonable expectation that an account would be set up, and must have entrusted cash or securities for the purpose of investing in securities. This could only be “ascertainable from the books and records” of Madoff. Third, Madoff’s victims argued that their net equity was what they had invested with him. However, the courts interpreted net equity to mean total value of cash and securities “less total value of cash and securities” the customer owed to the broker. Thus, according to the courts, net equity can be easily determined by calculating what would have been owed the customer if securities had been liquidated. The reasoning was that because for Madoff’s victims there were no securities to be liquidated, accounts were valued according to what was invested minus what was withdrawn. This was the trustee’s position. Fourth, some Madoff victims believed they were entitled to interest on their investments. However, the courts ruled that the SIPA does not authorize the payment of interest on customer accounts. In fact, when a brokerage firm was operating a Ponzi scheme this did not include supposed interest that customers were to receive on their investments; rather, customers were entitled, subject to statutory limits, to only the return of their principal as reduced by any amount which they had received from brokerage, whether as interest, return of principal, or any other payment. This was the trustee’s position. Fifth—and what was surely the most contentious issue as far as the victims were concerned—was how the total amount of their investment should be determined. A large majority of the victims (at least those who expressed their view on the matter) believed that the value of their account could be found in the November 2008 statement from Madoff, the last one they received before his arrest. Yet, this was contrary to a 2004 court case, which held that claims of purchasers of bogus securities were required to be valued at the amount they initially paid for them, and could not include any artificial interest or dividend reinvestments reflected in fictitious account statements that may have been received. This was the trustee’s position. A number of victims who were not initially convinced that they had been wronged by the government’s take on one or more of these points of disagreement were shortly convinced otherwise by other victims—often by means of online websites (online communities, online networks, online social support groups), which mushroomed and thrived. Attorneys also were instrumental in persuading victims that the most effective way of forcing the trustee to reverse a position, that is, of “getting the complete justice they deserved,” was going on the attack not only against the trustee, but also his staff, and the SIPC. Among other things, they initiated lawsuits, complained to their elected representatives and the media, and wrote e-mails and letters. Victims also were urged to challenge the courts, which interpreted the law in the same way as the trustee. This was not an easy matter; yet they persisted. In their dispute with the trustee, the victims often spoke about fairness, principles, equity, justice, and the like. But it was quite evident that they were less moved by these concepts than by the wish to get as much of their investments returned to them as possible, and they expected—some demanded—prompt action. At bottom, many disputes were about money and little else: “I think the way we have been treated by everyone shows that most people today lack compassion…. I would think,” Client #72 argued, “every- one would agree that as a country we would all be better off if more of us practiced the ‘Golden Rule’…. That’s really what this country is about…. Yes, Congress and the president should see that we get all of our money back plus interest.” And again: “Does anyone not agree that we have been hurt by unfair treatment? And why is it that only those who play by the rules end up being hurt? ... I would hope that you would understand that if fair play wins out, our IRA and the IRAs of others will be fully restored…. Who wouldn’t want [their] money back?” The SIPA and the courts had given the trustee broad and nearly unassailable power, and it was clear it would not be easy to convince him to return any more to the victims than 162 Soc (2011) 48:159–173 he believed the law, as he interpreted it, said they had coming. He was unyielding, and not much interested in what he saw as peripheral issues. His firmness only incensed victims, who believed that he was unnecessarily unyielding. They were convinced that the questions they were raising were truly relevant and worth considering. They felt he too often ignored them. Not everyone, of course, was disappointed at the govern- ment’s response to their plight. When, for example, one of the nine individuals (Client #86) selected to denounce Madoff at his sentencing trial in June received his $500,000 check from the SIPC four months after he had submitted his claim, he was elated. Although Madoff had stolen $5 million from him and the government payment was only 10% of that amount, he understood that by law it was the maximum the government would reimburse any account and he considered himself “well off by any reasonable standard and for that I am grateful.” The money would be of immediate use to pay off the first mortgage on his home. He seemed particularly pleased that he was among the first claimants the SIPC paid. (A few other victims groused that his claim was readily settled because he had political connections. This unsubstantiated accusation found its way into the media.) He promptly returned his questionnaire and optimistically wrote: “Since I lost almost $5,000,000 by investing directly with Madoff and indirectly through two feeder funds and because the overall economy has experienced an extremely severe recession, naturally my financial situation has deteriorated. I still consider myself well off financially and certainly have no reason to complain when so many millions of people cannot find jobs…. I immediately [as he had averred he would] paid off the mortgage on our home. We also received considerable tax refunds from the federal government, but not from [the state in which he resides], which refuses to refund the taxes we paid on fictitious income.” It is noteworthy that at the time he received the $500,000 from the SIPC, 99 percent of the nearly 9,000 Madoff investor claims at that point had not even been approved. Nonetheless, few of Madoff’s victims would be as pleased by the SIPC’s action. And Client #101 understood that her “situation [was] probably a little different from” that of most of Madoff’s victims. She was younger than most and had two young children. A few months before Madoff was arrested, she was diagnosed with thyroid cancer and had a thyroidectomy, and after that she discovered that her husband was having an affair with her best friend. Still, after “losing all my money” she found employment and with the help from other friends and relatives, but none from the government, she reported that her “life is much better now than it was before the Madoff fiasco actually.” She concluded that she got “pleasure from [her] work…, [and that] I’m actually a very lucky person.” Both Clients #86 and 101 were clearly part of a tiny minority. More typically, an individual who had written a succinct and compelling victim impact statement (Client #143) promptly became the co-principal in a lawsuit against the trustee, claiming that he had treated her unfairly in adjudicating her claim. After an unfavorable court decision, she brought another action, but again she was unsuccessful. Her attorney, who herself had invested with Madoff, did not cool her out. On the contrary, she urged her not to back down, to continue to seek redress in the courts. The attorney, in fact, had written the court earlier demanding that victims “must be given a seat at the table. To date, we have not been given that opportunity…in the bankruptcy proceedings….” She went on to remind the court that “people in their 90’s are being put into nursing homes for the first time in their lives because their children can no longer afford to maintain them in private homes. People in their 70’s and 80’s, who retired with the assurance of a steady income from their Madoff accounts, are being forced to sell their houses in a depressed market in order to have money to buy food.…” She asked that the government become more active in finding the stolen funds, and that the court “appoint a committee of investors [to help] assure restitution to Madoff’s victims.” Given the rawness of the attorney’s emotions, it is hardly surprising that this client and any of her other clients were not prepared to accept their losses. Whatever the challenge, the trustee remained unmoved, and was certainly not prepared, himself, to cool victims out. Three irreversible decisions by the trustee, the SIPC, and its attorneys were centermost to this and to other victims’ bitterness. First, the trustee and the SIPC would not budge from the decision to pay its full $500,000 insurance obligation only on the amount investors actually invested with Madoff, less any withdrawals they may have made (that is, net investment), ignoring years of phantom profits on which taxes had been paid. The SIPC did not see the tax issue of some victims as a problem it needed to solve. Second, the trustee was determined to recover the money that investors may have withdrawn from their accounts that was in excess of their investment with Madoff. He had set in motion a plan to promptly move ahead on this matter. This was called a “clawback.” Third, he continued to insist that only funds directly invested with Madoff, and not those invested in feeder funds, were covered by SIPC. According to the aforementioned lawyer’s 2009 con- gressional testimony—and math—at about the time she was writing the court, these procedures established by the SIPC “would reduce the total Madoff claims from $64.8 billion to approximately $21 billion and…reduce the number of customers entitled to SIPC insurance from approximately 4,904 account holders to 2,335 account holders.” She also contended that the SIPC proposal that individuals “pay back to the bankruptcy estate all funds withdrawn within Soc (2011) 48:159–173 163 the past 6 years up to the amount of the negative net investment” was grossly unfair. What she and some of her clients actually wanted was to replace the trustee after he had denied “prompt replacement of up to $500,000 of … securities as reflected on their November 30, 2008 statement received from Madoff.” They were convinced that getting the court to remove the trustee was a first and necessary step that needed to be taken if they were to have any success in their efforts to be made financially whole. The trustee and the SIPC had argued in court that returning the amount clients found in their November 2008 statements was completely “imprac- ticable,” as the statements reflected non-existent invest- ments and were, of course, complete fabrications. Much to the annoyance of Madoff’s victims, the attorney for the SIPC told the judge that “no one in their right mind” would use financial statements that were simply fabricated by Madoff as a basis for calculating assets: “The last customer statement, being a concoction of a fraudster, is not something on which you can rely” in calculating net equity. (When victims later learned that in just one four-month period this attorney submitted a bill to the court for $837,457.50, having worked 1,015.10 hours at $825 an hour, they could only be described as absolutely rabid.) The SIPC held firm that of the 15,870 claims that had been filed at that point only 2,336 were truly valid, as they were the only ones that had a net loss. This also further infuriated a number of Madoff’s victims. The SIPC was holding fast to the trustee’s method for compensating investors: “cash in/cash out.” In effect, with this decision, the trustee had reduced the SIPC’s liabilities from more than $7 billion (certainly not $64.8 billion) to approximate- ly $1.2 billion. (All of these numbers were constantly changing, and will continue to change before all matters are fully resolved over the years. At a later date, with more than 15,000 claims filed, the Madoff trustee Website valued the total number of “allowed claims” at roughly $5.2 billion.) The condescension and firmness on all matters by the SIPC legal team completely enraged the Madoff victims, who repeatedly challenged the trustee but with no success. They were prepared for a long and bitter fight, and this is exactly what they were in the midst of. The bankruptcy judge, although expressing sympathy for the defrauded investors, concurred with the SIPC trustee, writing “the account statements are entirely fictitious, do not reflect actual securities positions that could be liquidat- ed, and therefore cannot be relied upon to determine net equity.” He concluded that because securities were never “ordered, paid for, or acquired…the only verifiable amounts that are manifest from the books and records are the cash deposits and withdrawals.” The Madoff victims were not deterred. For her part, the attorney for the Madoff investors argued that the trustee’s actions were “solely to enrich SIPC at the expense of SIPC’s insureds.” She expressed the seemingly overlarge concern that “aside from the devastation Picard [the trustee] has caused to thousands of customers, he has created a serious threat to the national economy because he is single-handedly destroying investor confidence in the capital markets.” She was one of the first to suggest that at bottom the trustee was more interested in saving the SIPC money than in helping the victims recover their money. He was more concerned with minimizing the losses of brokers and bankers than those of investors. One victim referred to him as a “stooge.” Another victim described him as a “thief,” and “no better than a hired assassin.” Another victim called him a “pimp.” Another victim simply wondered why he was so calloused, so determined to use them as “pawns.” As this very much involved lawyer saw it, what the trustee had done was much more than unlawful; it was a “violation of the public trust.” In fact, however, the public was becoming less sure of this assessment. To the decreasing number of the public still paying attention, the tactics of the victims were beginning to look “desperate” and “greedy.” (Although his victims had largely lost interest in Madoff after he was found guilty and imprisoned, the public, fascinated by the grandness of his Ponzi scheme, was still very much interested in every detail of his life in prison fed to them by the media. Like Princess Diana, O.J. Simpson, Natalee Holloway, or Nelson Mandela, Madoff had become a bona fide celebrity.) In the eyes of many of Madoff’s investors, the effect of the totality of the SIPC’s decisions was to victimize them yet once again. This became an idée fixe. The Trustee Very quickly, and not surprisingly, the trustee became the primary target of the victims’ considerable and continually growing anger. His actions had done little to cool them out. At the same time, the trustee soon became the only face of the government. The widespread view in government circles was that those whose money had been stolen by Madoff were surely unfortunate, but not deserving of extraordinary help, not deserving of a government rescue, or, as some elected representatives and those in the media put it, “a bailout.” The trustee apparently also held this view. As they continued to question and pummel the trustee on every point, as they continued to press their case, the victims came to be seen more and more by outsiders as simply greedy. The reservoir of sympathy for them had begun to evaporate more and more rapidly. At this point, at least publicly, the trustee appeared to be very much concerned about the plight of the victims, yet there was absolutely no hope of his adopting any points they were so keen in making, let alone their world-view. As he saw it, his responsibility was straightforward: His job 164 Soc (2011) 48:159–173 was to collect as many of the assets that Madoff had not spent or that had not inexplicably vanished and distribute them fairly to those whose money had been lost in the Ponzi scheme. He continued to argue that his “cash in/cash out approach to calculating ‘net equity’ is the only one consistent with SIPA [law], bankruptcy law, principles of equity, and common sense.” The trustee was aware that there would be many challenges to the method being used to determine claims. In fact, by March 31, 2010, over 2,600 objections had been filed with the Bankruptcy Court. Some victims continued to insist that the cash in/cash out approach was arbitrary and unfair, that the value of a claim should be based on their November 30, 2008 statement; some still wanted interest paid on their investment; some believed that they were entitled to an immediate payment of $500,000; some argued that indirect investors, not only direct investors, should be covered by the SIPC; some contended that each name on a joint account should be eligible for an SIPC payment. The trustee was besieged on all sides. Not once did he waver. Regardless of their lack of success in court against the trustee, some victims were undeterred in their efforts to thwart his efforts to move ahead. At times the court grew impatient with their unwillingness to accept the fact that they had been swindled, and to quit contesting each step in the process of collecting and redistributing what Madoff had accumulated. When, for example, after losing a decision, a plaintiff filed again, “raising virtually the identical issues,” the exasperated judge concluded that the entire exercise was “bordering on [the] frivolous.” The trustee found most allegations against him to be “spurious,” but was decidedly bothered by the fierce ad hominem attacks against him and the SIPC staff. He seemed truly surprised by how many were suspicious of every action he took. By tying him up in legal minutiae, the victims were slowing his work of cleaning up the mess Madoff had left behind. Of course, the longer he was required to stay on the job, the more he earned as trustee. What he was doing may at times have hurt him personally, but it was surely lucrative, thanks in part to the victims’ activism. At times, Madoff’s victims were uncharacteristically quiet when the trustee resolved a complicated matter. They were silent, for example, when in late August 2010 he convinced the judge overseeing Madoff’s business affairs to ask the Supreme Court of Gibraltar to transfer $73.1 million to him to use to compensate those who had lost money in Madoff’s Ponzi scheme. And Suing the Trustee On the other hand, about a week after this trustee success, a number of victims joined two lawsuits challenging a nearly $34 million bill for work the trustee and his firm had performed in the previous quarter, from February 1, 2010 through May 31, 2010. In the first suit, the plaintiffs reminded the court that “this equates to $5,010 in daily compensation, including all weekends and holidays, for the trustee, and $283,179.45 in daily compensation for [his law firm], again including all weekends and holidays…. These figures are excessive by any measure and should not be approved….” The core of one suit was that “investors have no ability to evaluate the efficiency or professionalism of the work” because “detailed billing reports” were not filed. The contention was that these eye-popping fees “come directly from SIPC—from the very money that is necessary to pay investors the $500,000 in SIPC insurance to which they are entitled under SIPA.” The second suit alleged that “the trustee has failed to disclose material information,” information “vital for customers to know and yet it has been concealed from customers and the public”; and that “the trustee and [his law firm] have a conflict of interest” in that the trustee and his law firm “are far from ‘disinterested’”: as a result of which “they are barred from receiving any compensation under established precedents and principles of professional conduct.” In a 47-page response, the attorney for the trustee not unexpectedly restated that “the trustee and his counsel continued to work diligently on behalf of customers” and Madoff’s estate. He also repeated that “no administrative costs…will be paid out of any recoveries obtained by the trustee for the benefit” of Madoff’s clients. The filing also summarized the trustee’s professional background and services. The trustee was still proceeding very deliberately. (As of August 13, 2010, the trustee had determined 13,286 customer claims, of which 2,188 were allowed, and had committed to pay approximately $715 million in funds advanced to him by the SIPC. The allowed claims totaled over $5.5 billion.) Only weeks earlier the trustee had issued a report detailing his activities, and here he was compelled again to make the case that his efforts were unflagging. He attempted to quiet his critics by pointing out that he had gathered and organized approximately seven thousand boxes of paper documents, identified approximately 8.3 million pages of documents to scan, was working to assess the contents of more than 4,000 reels of microfilm and 87 transfile boxes of microfiche. He had also accumulated and stored 1.4 million e-mails. Yet at this point, his staff was still able to review 12,249 claims, of which 2,011 were allowed for a total of $5.3 billion, and he had committed to pay $668 million in cash advances from the SIPC. For the most part, he denied the other 10,238 claims either because those accounts had withdrawn more money than had been deposited or the claim was filed by someone who was not a Soc (2011) 48:159–173 165 direct investor with Madoff. At the same time, the trustee had recovered $1.5 billion and had filed fourteen avoidance actions seeking to recover more than $14.8 billion in principal and fictitious profits from various feeder funds, Madoff family members and friends, and related parties. He had also issued subpoenas to more than 600 parties and received approximately 6 million documents. If nothing else, his office was extremely busy, and was kept busier by the constant assaults on it by Madoff’s victims. Victims held him up with legal maneuvers, and then wondered why his work did not progress more rapidly and why it had become so costly. Nearly 16 months after Madoff’s arrest, only 1,769 accounts out of 16,314 claims had been fully or partially satisfied. Of the claims, 4,273 were under review and 7,865 were denied, for which no objections were filed. These figures were at the core of the agitation of many of Madoff’s victims and their supporters, family, friends, attorneys, and journalists who had a public forum: The Securities Investor Protection Corp., (SIPC) whose logo brokerage firms pay to print on their statements to gin up a sense of security among retail customers, has not paid back the bulk of Madoff investors, although the agency was set up under the Nixon administration for the express purpose of protecting Americans who tangle with Wall Street. In a strangely twisted view, SIPC is actually proud to have not helped investors who are victims of Wall Street fraud, including Madoff investors. Is the SIPC logo on your brokerage statement? Probably. Don’t expect any money back, even when it’s been stolen from you outright. A number of victims joined in the outcry. Client #97A confessed to being overwhelmed by “rage against [the] injustice” she confronted at the hands of SIPC: None of the victims are “winners.” We are all losers. The only winners in the debacle are [the trustee] and his law firm who have been making over a million dollars a week for over a year now. To imply that any of us are winners is disgusting…. We feel it’s immoral to again victimize people who lost their life savings by demanding back money they withdrew in good faith and which they believed was theirs. Elderly people are being tortured by the threat of clawbacks, fearing the little they have left and their homes will be taken from them. Mr. Madoff isn’t deciding who is entitled to restitu- tion. Mr. Picard [the trustee] and Mr. Harbeck [also from SIPC] are. They have used that absurd statement to deflect attention from their failure to adhere to SIPA legislation. They are not working for the victims. Their goal is to limit SIPC’s financial exposure and hence that of the securities industry. They claim that by using their calculations more victims will be helped. This is simply not true…. Their claim that SIPC is not insurance is a smoke screen. SIPC…might not have the word “insurance” in its name as FDIC…does…. SIPC is insurance. The only ones they are being “fair and equitable” to is [sic] the securities industry that pays their salaries. A relative, Client #97(B), added: While our “job” was to get the message out that Madoff was now irrelevant to us, and why SIPC, perverting the laws, was relevant to everyone. If SIPC could do this to us, they could do it to anyone…. The real tragedy was that the SIPC agency created by Congress to protect investors had instead turned against investors in favor of the securities industry it was beholden to…. SIPC has shown that they will not honor their statutory commitments. In an essay in the same volume, Client #123 wrote: But at 9,000 claims, poor old SIPC realized it would be out of money and probably existence if it honored its promises. SIPC’s definitions about responsibility were quickly rewritten. Investors who, by SIPC’s stated position, had a reasonable expectation to believe securities they were told were purchased on their behalf actually existed, were no longer entitled to have those securities restored to them nor the equivalent value of those securities in cash if the securities were no longer available…. The law firm denying those claims, in the meantime, is billing SIPC close to a million dollars a week, money that’s coming right out of the pot to reimburse investors. Client #125 had as many suspicions, referring to “the sham of SIPC.” Now the skirmish had escalated into a battle. The trustee, and, in effect, the SIPC were not simply being challenged and harassed by Madoff’s victims; they were being taken to court by them. There was the indignity of precisely describing all of the services rendered, of providing “a more detailed synopsis” task by task. The trustee even complained publicly that he and his attorneys had to spend time fighting repeated legal challenges by a handful of victims who “purport to represent a class of those similarly situated.” Moreover, the trustee’s attorney faced the additional indignity of submitting an affidavit certifying that the application for compensation “complies with guidelines for fee application” under bankruptcy law, and even that in seeking reimbursement for services purchased 166 Soc (2011) 48:159–173 or contracted from a third party it requested money “only for the amount billed.” Less than 2 weeks after the two lawsuits were filed against the trustee, the bankruptcy judge awarded him the fees he had requested. This was the third time the judge had rejected victims’ objections in approving legal fees requested by the trustee. The effects of the actions on the part of Madoff’s victims on making the trustee’s work less lucrative may have been insignificant; however, they surely made it less pleasant, forcing him to publicly defend himself, his ethics and competence, and entreat the court for his money. Suing the SEC Six weeks after the SEC issued its self critical report, two of the victims of Madoff’s Ponzi scheme—a disabled, retired single mother and a physician approaching retirement— filed a lawsuit against the federal government accusing the SEC of negligence for failing to protect investors. The suit asked for monetary damages “arising from the serial, gross negligence … [during the SEC’s] multiple investigations and examinations.” Instead, by its implied clean bills of health or seal of approval, the SEC “caused Madoff’s scheme to continue, perpetuate, and expand in billions in losses by investors.” The two plaintiffs argued that Madoff could have and should have readily been stopped. The premise of the lawsuit was that the SEC was responsible to Madoff’s investors as it is reasonable to expect that they would rely on the SEC to remove risk if it had information that he was engaged in illegal activity. Although it was Madoff’s dishonesty that was responsible for their losses, the SEC’s actions and inactions, the plaintiffs contended, were a substantial factor in bringing about their injuries. It had not “carried out its functions with even a minimum of reasonable care,” and it showed a “wanton” indifference to public safety. The SEC had an obligation to examine and investigate “potential wrongdo- ing within the context of defined policies and routine common sense practices.” However, in spite of multiple complaints and investigations, as well as the several reviews or inquiries, it had failed to do so. The SEC, the plaintiffs further argued, disregarded its policy that all relevant information from complaints be vetted. This was due to at least one of the following: negligence, incompetence, inexperience, inattentiveness, or laziness. Moreover, it was acknowledged that policies and practices in place for “case opening and closing memoran- da, investigation planning memoranda, and communica- tions between SEC offices and teams” were “routinely disregarded.” Of particular relevance, in its inquiries the SEC failed not only to confirm Madoff’s claimed trading activities, it disregarded pertinent information because of inter-office rivalries, and although it caught Madoff repeatedly in contradictions and inconsistencies, failed to validate or ask him to validate his claims. For example, during the course of one investigation, SEC staff members knew that what he told them about his management of hedge funds and overseas accounts; the reason customer statements were so vague about trading details; and that he did not use e-mail to communicate with clients were all untrue, but they nonetheless continued to rely on his oral representations. He was most obviously lying when he first claimed large scale option trading that was patently non- existent and later when he reported that he had stopped using such options. These assertions were purported to be central to his claim of why his investment strategy was consistently successful. The SEC did not appear bothered by the barrage of Madoff’s untruths, perhaps assuming such behavior was generally expected from the financial organ- izations it monitored. Or it might have been that some of the time its staff members were simply not paying attention. The government attorneys responded that the SEC’s failure to curtail Madoff’s fraud was due to “discretionary judgments” and as a consequence shielded from liability. Quite simply, this means that even if one were to characterize the investigative work of the SEC as incom- petent or negligent, the government cannot be sued, unless it agrees to be sued, “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” The government’s defense was that the law gives it blanket immunity when the judgments of its officials are in question. A Touch of Greed and Fragile Egos As Goffman reminds us, before any con is initiated, one is most likely to find evidence of greed and after any con is executed one is more likely to find a plenitude of bruised egos. With the Madoff Ponzi scheme both greed and bruised egos were much in evidence. First, in an effort to maximize the annual return on their savings, when pressed on the question, some individuals acknowledged investing a larger percentage of their wealth or too much of it with Madoff than proved to be prudent. More tellingly, some took out an additional mortgage on their home so that they could invest more money in their Madoff account. The contention of victim after victim was that a consistent return of between 8 and 12 percent is what one would expect from any investment, and that they did not find the returns offered by Madoff exceptional. However, if they truly believed this, it is unlikely that any of them would have cashed in all or most of their other investments and borrowed on their homes to increase the Soc (2011) 48:159–173 167 amount in their Madoff account. Yet: (1) One victim (Client #42A) lost his condominium valued at over $1 million because he could no longer afford to make the mortgage, insurance, and maintenance payments. A few years earlier, he had borrowed against it in order to increase the total in his account with Madoff. He blamed his plight on inaction by the government. “Why shouldn’t we be fully reimbursed by a government program?” he wondered. “It should be like Social Security and Medicare.” (2) A second victim (Client #126) was no less inclined to blame the government for her decision to completely trust Madoff: “Upon my retirement, I cashed my pension, 401K, and additional salary that I received. I added all of this to my Madoff IRA.” As she too saw it, the government was making the situation a great deal worse: “Only a morally bankrupt society would keep taxes collected as a result of a criminal activity.” (3) A third victim (Client #147) was simply following what she believed were more knowledgeable relatives: “Slowly in 2003 and the early part of 2004, I liquidated all my holdings from Vanguard and transferred all of it over to Bernie’s able hands…. By 2004 I was fully invested with Madoff. I did have a small amount of bonds that I did not add to the pile of monies transferred. In the spring of 2003, I had decided to renovate my small but comfortable Florida condo that was completely paid for; the advice given me by the sage uncle and another financial advisor was to take a ‘little extra’ out in a loan and move it over to Bernie. ‘Don’t tie your money up in bricks and stone; have it out there working for you. You’ll earn more with Bernie than the bank will charge you in interest.’ So, I did just that and started making monthly mortgage payments. I now only owned part of my Florida home, and had also obtained a mortgage to purchase my Pennsylvania home. When it came time for a new car, my advice was not to take a large sum out of my investments with Bernard Madoff, but to get a loan, and make monthly statements. My rate on the bank loan will be less than the money I can earn with Madoff…. When each of my bonds matured, the advice I received was to either live on the money or ‘slide it over to Bernard Madoff.’” (4) Another victim, who had borrowed to invest with Madoff, asserted that he should be able to write off his bad debt. “Everyone cheats,” he complained, “and I’m just not going to be left holding the bag, whatever it takes.” (5) Client #69A detailed her roller coaster ride: “We lived short of our income for 34 years!! Just to be sure everything went into our investments. We did very well with our real estate and sold it all to roll it in to our accounts, then we sold our family home and rolled it in; my husband’s pension was rolled in as well as both of our IRAs; I was in a bad car accident and left with many injuries; I rolled my entire settlement into it also. Approximately 7 years ago, our investor decided to stop the annuity investing and other types that he did so we could ‘play with the big boys.’ He only wanted to make more money for all his retired clients.” (6) Like a number of others, Client #131, a retired businessman, claimed that he was simply following the advice of his accountant: “For many years I had all my investments with Merrill Lynch. I was getting a nice return on my money and was able to retire and live a comfortable life.” Apparently this was not enough, as “my accountant suggested I should diversify and recommended me to Madoff, telling me of his great returns on investments…. Eventually, because of his high rate of return I moved all of my money to an IRA account with Madoff.” For many of Madoff’s former clients the bruised egos and inevitable sadness were more evident than the greed. This was hardly unexpected. In fact, according to Goffman, the anger of the victims of a con has less to do with greed than with bruised egos. The fact that so few bruised egos had begun to heal a year and a half after Madoff’s arrest adds credence to Goffman’s conclusion. The material from the questionnaires and interviews indicates that four other factors often also fostered anger and sadness. First, the greater the proportion of their wealth individ- uals lost in the Ponzi scheme, the less likely their anger was to dissipate. With their material life in ruins, those who lost all or most of their money saw their future as bleak. The months and years ahead held little promise and there was little incentive to let go of anger and replace it with new plans or hope. These victims were not eagerly or optimis- tically looking forward to rebuilding their lives, but were more likely to be still focused on December 11, 2008, venting their anger publicly, hiring attorneys and listening to their advice, and blaming the government for their losses. It is hardly surprising that the greater the reduced circum- stances, the greater the anger and sadness. “I’ll never get over Madoff,” Client #55 assured me. “He’s wrecked my life. There’s no money left and no hope. I have nothing. I doubt if I’ll ever be happy again.” She added that one of her friends, someone who had lived close by, felt the same, and still had many sleepless nights and had become addicted to prescription medicines: “We were sure we were making careful decisions. I just don’t know how everything turned out so badly. It’s not easy to face each day with any confidence.” Second, the more individuals relied on other victims for information and emotional support, the angrier and sadder they were. To some, this might seem counter intuitive, but an examination of messages shared on the internet, where so many individuals went for information and support, suggests why this occurred. Although much necessary and useful information and good advice were shared on the internet, there was also a surfeit of misinformation and of 168 Soc (2011) 48:159–173 hostile interpretations of what had occurred, was occurring, and would occur, so that a poisonous atmosphere was pervasive. Unsubstantiated assertions were thrown about not only with little regard to their validity, but with little regard to their consequences. Rumors, speculation, and untruths, of course, did little to enhance understanding and dampen the still very raw passions of those in great pain. Too often, exchanges on the internet not only did nothing to cool the mark out, but instead caused a great deal of additional and unnecessary emotional turmoil. “I’ve heard more than one time,” client after client began a sentence before stating some outlandish claim: “The government doesn’t want to return our money, it wants to use it to fund a secret research project,” or “Madoff could only have done this with help from the highest levels of government.” Third, the more shabbily individuals believed they were treated by the government, the angrier or sadder, or angrier and sadder, they were. This was the case not only for those who actually appeared badly treated, ignored, or given the bureaucratic runaround. And it also included those who believed they were being treated badly because a decision or outcome proved to be unfavorable to their interests. It was relatively easy to convince the Ponzi scheme victims that government officials were not only uncaring, but set against them, determined to harm them even more. In a number of cases auditors for the Internal Revenue Service appeared to be decidedly unhelpful. Some elected officials gave the appearance of carefully listening to the entreaties of victims, but there is little evidence that they followed through with much action. Client #50’s experience is fairly typical: “As for the government, there has been no help whatsoever. I have written many letters to senators and congressmen and women. A very few answered with a standard form letter which really tells me a lot. I’m convinced most don’t care one iota. Most didn’t even have the decency to reply or acknowledge in any way.” Fourth, the greater the number of other setbacks, for example, health problems, family problems, or other financial problems—in addition to their financial losses due to investing with Madoff—the angrier and sadder they remained. It is obviously more difficult to bounce back from simply losing one’s savings in Madoff’s Ponzi scheme than from losing one’s savings and losing one’s spouse to alcoholism or divorce in a very short period of time. There is no way, of course, to know what the roots of the anger and sadness of Madoff’s victims were. All that can be said is that they were very apparent, and were not in the least dissipated by activism—writing letters or essays, broadcasting grievances, suing or the like. In a number of instances, in fact, activism appeared to enhance anger and sadness. Some might conclude that given the facts and the harm caused by Madoff’s Ponzi scheme, the levels of anger and sadness were not at all inappropriate, while others might disagree. It is important that while some caught up in Madoff’s Ponzi scheme appeared to be angry, angry and sad, or sad; others did not appear to be the least bit emotionally affected, not angry or not sad. It can be said, however, that anger had become an acceptable tenet of their world, very pervasive. As Goffman and any practiced con man surely would have concluded, there would have been less anger, grief, pain, or sadness if there had been someone, some mechanism or institution to cool the marks out. The sample of quotations from the forty-two files shed light on a great deal more than anger, grief, pain, sadness, or the general state of mind of these Madoff victims a year after he was sentenced to prison, but, more importantly, they shed light on how they were coping with their losses, financial and otherwise, as they waited for justice. The first point to be made here, however, is that some, almost one in five of the 42 respondents, expressed the belief that although their financial loss was a great personal disappointment that resulted in disrupting their lives significantly, they were reasonably pleased with how their lives had gotten back on track. Client #102: “My family and I were very fortunate insofar as we received our original stakes back from SIPC and, also, our capital gains taxes from the IRS. Moreover, we did not, by any means, have all our eggs in one basket (diversification!!!). There was, of course, shock initially and a certain amount of uncertainty until everything was worked out, which took a little more than a year…. The internet and, in particular, a private victims’ website, were invaluable in keeping up with developments, getting information, and sorting things out in my own mind…. Finally, I believe that [the trustee’s] definition of net equity is absolutely correct, as is his interpretation of SIPA. Thus, I harbor no anger and no grievance against him or anyone else. I blame myself (but only a bit) for being a gullible victim and for not being as smart as [the whistleblower] Harry Markopolos….” Another victim whose distress was substantially and relatively quickly eased was Client #131, whose congres- sional testimony, excerpted in a previous essay, details his losses. “At first,” he writes, “the realities of my finances were too much to bear. I was completely wiped out. Absolutely devastated financially; left with no money and few assets. Even after appearing before Congress I had no idea how bad my situation was and how much worse it would get…. To say it was difficult for my wife…and me would be an understatement. We were both in a terrible state of depression, and both undergoing psychological counseling. I have to say there was more than one time I thought about suicide.” However, Client #131’s life turned around fairly rapidly. Friends raised $50,000 to help pay the mortgage of his Soc (2011) 48:159–173 169 home; his son and daughter-in-law gave him $25,000; his sister, brother-in-law, sister-in-law, and nephews gave him more money; and his daughter and son-in-law bought him a house. In spite of the fact that his life is clearly materially better, he has not been entirely cooled out. Even after his financial recovery, he was still publicly blaming the SEC for what had occurred: “I could not believe the government would let a thing like this happen.” A second important point is that a considerable amount of grief or pain that the victims had initially felt had dissipated for many, but not for all. Client #106, who initially “almost killed himself,” who “barely made it through each day [because] I was so depressed and frightened,” would only go as far as to say that he was “not comfortable” answering questions such as whether the practice of his “old meditation techniques… from having another panic attack” had worked or were working. On the other hand, the outcome for Client #93, who described the weeks following Madoff’s arrest as a period marked by “a terrible depression—I did not drive a car for 3 weeks…. I contemplated suicide often and was put on heavy anti-depression medicine”—was clearly better. After a brief period, he wrote, “I was finally not suicidal and decided to do what I could to try to reinvent my life.” Client #131 admitted that he and his wife “both were in a terrible state of depression, and both undergoing psychological counseling,” and added, “I have to say there was more than one time I thought about suicide.” However, with the passage of time and with considerable financial help from family and friends, he and his wife “are the two happiest people in the world.” A word of caution: It is important not to exaggerate the victims’ greed. They entrusted their money to professional financial advisers, their decisions were supported by family and friends, and government oversight completely failed. It was a perfect storm. Many Americans expect the govern- ment to make them whole after a natural disaster. Many Americans expect the government to help them find new employment after they have lost their jobs in an economic downturn. It is hardly surprising that Madoff’s victims would expect government help. The investors most involved in efforts to recover what they had lost, particularly those using the media and the courts to press their case, were in almost every instance those most unwilling to acknowledge that they had been victimized. They were those who most behaved like victims—believing that those who had not shared their fate were not only uncaring and lacked empathy—but had the most difficulty coming to terms with the fact that they had, indeed, been victimized. They needed comfort; they had little need for understanding. They turned to others who also needed comfort. They professed their goodness—their penchant for hard work, their frugality, and their generosity. They were the first to turn on the government and to belittle government officials. They often claimed that those who were making efforts to assist them were not expending enough effort on their behalf. They most likely listened to the advice of attorneys regardless of how questionable it appeared to be. When asked about this assessment, one activist (Client #146) unhesitatingly shot back: “Sure I’m bitter. You would be too. And I’ll continue to be even if every cent is returned. I shouldn’t have had to beg for it. It’s mine, after all. How would you feel? Someone should have come to me; that would have been fairer.” Client #66, while expressing no bitterness, wondered why “everyone took so much enjoyment in piling on…. Before this happened I would do everything for anyone even before looking at my own needs.” And she asked: “I wonder where everybody is today?” Client #128(C) wrote: “I had felt very depressed for many, many months. It was hard to accept such losses. I felt that I had lost my identity, along with my self-respect. People judge you by what material things you have in your possession, your lifestyle, your money, and that is how they determine your status in the world. I felt crushed and anonymous, as if I had become transparent, and just didn’t count anymore.” His wife (Client #124(C)) wrote to the court about her “fear and anxiety,” “major depression” daily, and, elsewhere, about how she “thought that suicide was the only answer to stopping the pain.” Although their distrust of others did not appear to be greater than that of victims who were more likely to accept their new circumstances, they were generally more unfor- giving. They were clearly among the most rigid of the victims, but there is no way of ascertaining if this was characteristic of them before they had lost their savings to Madoff. A number were very self involved. It would seem their victimization had not only unsettled them financially, but it had badly bruised self images. Absence of Government Assistance Most victims not only did not receive concrete help from the government, but they could not even get government representatives to respond to their questions or appeals. Writing to the court in 2009, Client #126(C) seemed inconsolable: “It is our money he [Madoff] is using to continue to benefit himself. I am broke—robbed by the Madoff gang.” A year later only the focus, not the extent of her anger, had changed: “I spend hours each week on the phone with legislators in an attempt to recover the major source of monies available to me—taxes paid for two decades of fraudulent 1099 income.” Additional Setbacks Along with multiplying financial problems, a number of victims report health problems overwhelming them or their 170 Soc (2011) 48:159–173 spouse or both. There is no way, of course, of generally ascertaining how much their being victims of Madoff’s Ponzi scheme contributed to acute or chronic health problems, but in some cases a connection seems very obvious. Client #23: “Oh that [“your health”] is a big one…. You sure you want to ask?... Well I am at the age of a woman’s change and my body was already going through a lot and then with the added stress it went into a tailspin…. I was diagnosed with melanoma 9 months later and 13 months later had a severe reaction to environmental toxins (immune system down) and basically had to live in a bubble for 6 months and try to heal (which I am, yeah….) and then after 15 months [of pain] in my lower back that had me in bed for 2 months…. So now I am 1 month into a fairly healed body and have a whole new appreciation and lust for life…. I realized I was holding so much stress inside of me and emotions that it really almost took me out…. I had always dealt with challenges and life traumas before so I was damned if I was going to be a victim…. I had to be a survivor…. My husband was awesome but he became really sick about 6 months ago due to the stress…. He was just always there for me listening to me cry, listening to my anger [to] help and encourage me to go back to my old job…. He always offered to help with whatever needed to be done but it took its toll.” Client #50: “My health is very poor and has been going downhill with worry, frustration, and fear as I will pay for my last few months of surgeries, medical expenses, and chemo therapy, which I am about to start. I tell myself, though I’m certainly not ready to do so, that it would be easier if I just died. At least then I could leave something to my two remaining sons, of which we had five…. The last 2 years I have been unable to pay for this [an insurance policy] and I will probably have to give it up, losing all those years of very high premiums, leaving them with nothing but my home, which is modest and which I can no longer afford to keep up as it should be and always was. Is it any wonder my health has declined?” Client #69(A): “Our home went into foreclosure. My husband began drinking heavily and we are now in the process of getting divorced…. After losing everything I ended up breaking everything in my ankle and leg while hunting because we need meat for the winter. The following winter my husband fell off a ladder breaking his back while trying to remove large icicles off the edge of our roof because we couldn’t afford snow removal any longer for the valleys of our roof. My fibromyalgia and chronic fatigue syndrome increased immensely and now I have developed neuropathy in my hands and feet and have a lot of pain from my bionic ankle. I can’t get the medical help I really need due to [the] shortage of money. Some of the drugs I was on are not covered by Medicare and too expensive for me. My ex-husband is quite ill but continues to plow through working.” In answer to the question, “have things turned out better, about the same, or worse…?” she responded: “Worse because of the divorce after 36 years. I’m living on $2,000 per month and am disabled. I can’t afford the medications I need. If there is any recovery I’m told our portion would be $80,000 in 3–5 years. But we have so many attorneys working on it as a group that I’m sure they’ll end up with it all. By then I’ll be 70 and probably will have passed on. I can barely afford my little pet…. Both of us didn’t have our annual exam this year. We spent it on existing medical bills.” Client #125(C) writing on behalf of her elderly parents, both children of immigrants, told of their myriad illnesses, including heart disease, diabetes, kidney dis- ease, hip fractures, and hypertension, all made worse “by the stress induced by the loss of all their money.” Since Madoff’s arrest her father suffered a heart attack and a stroke and her mother is being treated for depression, while both “parents are scared and nervous every single day.” The daughter’s observation, that because of Madoff her parent’s “lives have become circumscribed,” is clearly an understatement. Client #88: “My life was shattered in 2008, first with the loss of my dear sister and her husband in October. My loyal canine companion …died. Then on December 11, 2008, I received a call…about my retirement money. I can hardly explain how this affected me, rage, depression, fighting with my husband…. My mental health was at a breakdown, I could not leave the house, I cried constantly. I had to be under a doctor’s care. I never felt as violated as I did that day when the call came. Then I was hearing that it would be years before this could be sorted out, hiring a lawyer, costly, useless…. I was completely obsessed with all things Madoff, writing letters, calling people who I thought might be able to assist me. [I spent much time] writing to [the judge], filing my forms with [the trustee], along with filing forms for hardship and SIPC assistance. Each reply I received did not offer up much consolation. Then in February 2009 I felt a lump in my right breast [and] I was diagnosed in March 2009 as Stage 2 then upgraded to Stage 3 breast cancer. Through 2009 I underwent chemo, went bald, felt near death, underwent a right breast mastectomy along with regular and oral radiation from March 2009 until now [late July 2010]. I am still looking at more surgery. My financial situation has been a nightmare…. I lost an investment property at no profit because of the economic climate. ([It] nearly was foreclosed on.) No one in the banking industry wanted to help out with a hardship loan situation. There was no one to help us, we felt abandoned by our government and still do. I have received no help from my government despite folders full of letters to the Soc (2011) 48:159–173 171 president, senators, congressmen and women…. I would like to have an official e-mail to where my experiences are headed. I failed also to tell you that my husband who is 72 has ESLS (end stage liver disease). I am 63 with breast cancer. We want our money back…. We all suffered and still do suffer under the Madoff fraud.” It should be added that some months earlier Client #88 had written: “The devastation that Bernard Madoff has brought into my life has erased all thoughts of man being inherently good.” The Greeks taught us that when we believe we are better than our fates a bitter ending is inevitable. The Madoff drama had a one-man Greek chorus, Harry Markopolos, warning all who would listen that there was not going to be a happy ending. Appendix: Nine Victims Speak on TV after Madoff Sentencing “What did you feel when he said, ‘I’m sorry for what I did?’” “I didn’t believe it.” “I think he’s sorry he got caught.” “I didn’t believe it when he said he was sorry.” “I didn’t believe it, because he has to say he’s sorry.” “When he stood up and put his hands behind his back and got handcuffed, I felt about 5 seconds of joy.” “[X], when you heard that he was remanded, that his bail was revoked, did that give you any sense of satisfaction that he would not go back to that penthouse on the Upper East Side and that he was going straight to jail?” “It’s not going to make me any wealthier how he gets punished, but in thinking about the situation, I think that he thinks he’s getting away with murder if he’s the only one who’s gonna go to jail in his family.” “We are in our own jails right now because of his actions.” “So that he’s in jail on one hand is, yes, he belongs there, but we need to try to help ourselves get out of our jail now.” “We’re just at the very beginning of untangling the legal, financial, and taxation web that he’s left behind.” “Can you tell us how your life has changed since December 11th [2008]?” “December 11th, the same day he turned himself in, we had sent in a check to buy a condo in an active-retirement community, and then the news broke.” “Now we’re worrying about having to pay the bills, from never thinking twice about it—if we wanted something, we could get it.” “My family members are in dire straits.” “My aunt and uncle in South Florida are in their 80s.” “They’re quite ill.” “They have been turned down for food stamps because their Social Security is too high.” “We no longer spend any discretionary expenses.” “That’s gone.” “But the bills keep coming in.” “And now I have to sell—we have to sell—our apartment in this market.” “I have no income coming in.” “I’ve had to move in with a parent.” “My apartment is up for sale in Florida and, as you know, at 52 years old, to have to move back….” “You all have told me—or the majority—you believe there is a misconception out there about the Madoff victims. Tell our viewers what that misconception is.” “The perception is that they’re just wealthy, greedy people.” “It’s not true.” “We’ve got professional people—doctors, lawyers, bankers—and we also have blue collar workers.” “Plumbers.” “Exactly, those unions.” “And we’ve got, you know, interior decorators.” “We’ve got people who are self-employed.” “We’ve got a lot of teachers, people who just had their life savings.” “Not huge amounts, but it was theirs.” “Is there a lesson here that you’d like to share with anyone?” “Basically, your question is: What could we have done differently?” “And you look back, and you say you really can’t.” “I looked at the SIPC stamp on the reports.” “My parents had been in it for 20 years.” “I mean, most times when there’s a fraud, everybody knows; it comes out fairly quickly.” “The money—the guy disappears; he runs away.” “That wasn’t the case here.” “This was long-standing, supposedly a successful firm blessed by the SEC.” “Do you blame [the SEC] most?” “Absolutely.” “Yes.” “Absolutely.” “This is what they’re commissioned to do, and how do [you] expect them to find any fraud if they cannot find the biggest, most blatant fraud that there is?”“If he was sitting where I am right now, what would you say to Mr. Madoff?” “What happened?” “How did you think that you were gonna keep doing this, and did you ever stop to think about the ramifications and what you’ve done to so many thousands of people?” This exchange fairly accurately captures the thinking of most Madoff victims in the months following his sentencing. Most striking is how decisive they were in apportioning blame 172 Soc (2011) 48:159–173 to others, and how certain they were that nothing they might have done would have prevented them from being harmed so gravely by Madoff. Their attention had quickly turned from themselves, and, in fact, from Madoff, to the government which had abetted him, which made his crime possible. They had granted themselves sufficient moral authority and had positioned themselves to ask that the government take extraordinary steps to make them whole. While their campaign was gaining focus and momentum, the public was growing indifferent, having steadily lost interest in the matter once Madoff was in prison. Lionel S. Lewis (A.B., Washington University; M.A., Cornell University; Ph.D., Yale University) is professor emeritus of sociology, SUNY/Buffalo. He is the author of 5 books and the author or co- author of 130 research articles, essays, and reviews, a number published in SOCIETY. This article is the fourth and final one in a planned series on the Madoff Ponzi scheme. Soc (2011) 48:159–173 173 After Madoff: Waiting for Justice “On Cooling the Mark Out” Challenging the SIPC The Trustee And Suing the Trustee Suing the SEC A Touch of Greed and Fragile Egos Absence of Government Assistance Additional Setbacks Appendix: Nine Victims Speak on TV after Madoff Sentencing << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated v2 300% \050ECI\051) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /DetectCurves 0.0000 /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /Warning /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 1.30 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /Warning /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 1.30 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 600 /MonoImageMinResolutionPolicy /Warning /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /Description << /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e5c4f5e55663e793a3001901a8fc775355b5090ae4ef653d190014ee553ca901a8fc756e072797f5153d15e03300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc87a25e55986f793a3001901a904e96fb5b5090f54ef650b390014ee553ca57287db2969b7db28def4e0a767c5e03300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /DAN <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> /ESP <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> /FRA <FEFF005500740069006c006900730065007a00200063006500730020006f007000740069006f006e00730020006100660069006e00200064006500200063007200e900650072002000640065007300200064006f00630075006d0065006e00740073002000410064006f006200650020005000440046002000640065007300740069006e00e90073002000e000200049006e007400650072006e00650074002c002000e0002000ea007400720065002000610066006600690063006800e90073002000e00020006c002700e9006300720061006e002000650074002000e0002000ea00740072006500200065006e0076006f007900e9007300200070006100720020006d006500730073006100670065007200690065002e0020004c0065007300200064006f00630075006d0065006e00740073002000500044004600200063007200e900e90073002000700065007500760065006e0074002000ea0074007200650020006f007500760065007200740073002000640061006e00730020004100630072006f006200610074002c002000610069006e00730069002000710075002700410064006f00620065002000520065006100640065007200200035002e0030002000650074002000760065007200730069006f006e007300200075006c007400e90072006900650075007200650073002e> /ITA <FEFF005500740069006c0069007a007a006100720065002000710075006500730074006500200069006d0070006f007300740061007a0069006f006e00690020007000650072002000630072006500610072006500200064006f00630075006d0065006e00740069002000410064006f00620065002000500044004600200070006900f9002000610064006100740074006900200070006500720020006c0061002000760069007300750061006c0069007a007a0061007a0069006f006e0065002000730075002000730063006800650072006d006f002c0020006c006100200070006f00730074006100200065006c0065007400740072006f006e0069006300610020006500200049006e007400650072006e00650074002e0020004900200064006f00630075006d0065006e007400690020005000440046002000630072006500610074006900200070006f00730073006f006e006f0020006500730073006500720065002000610070006500720074006900200063006f006e0020004100630072006f00620061007400200065002000410064006f00620065002000520065006100640065007200200035002e003000200065002000760065007200730069006f006e006900200073007500630063006500730073006900760065002e> /JPN <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> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020d654ba740020d45cc2dc002c0020c804c7900020ba54c77c002c0020c778d130b137c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor weergave op een beeldscherm, e-mail en internet. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /PTB <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> /SUO <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> /SVE <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> /ENU (Use these settings to create Adobe PDF documents best suited for on-screen display, e-mail, and the Internet. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) /DEU <FEFF004a006f0062006f007000740069006f006e007300200066006f00720020004100630072006f006200610074002000440069007300740069006c006c0065007200200037000d00500072006f006400750063006500730020005000440046002000660069006c0065007300200077006800690063006800200061007200650020007500730065006400200066006f00720020006f006e006c0069006e0065002e000d0028006300290020003200300031003000200053007000720069006e006700650072002d005600650072006c0061006700200047006d006200480020> >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToRGB /DestinationProfileName (sRGB IEC61966-2.1) /DestinationProfileSelector /UseName /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles true /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /NA /PreserveEditing false /UntaggedCMYKHandling /UseDocumentProfile /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [595.276 841.890] >> setpagedevice 
work_6ookup224rajje5yhnu4jdhnee	----	Durham Research Online Deposited in DRO: 06 August 2015 Version of attached �le: Accepted Version Peer-review status of attached �le: Peer-reviewed Citation for published item: Linarelli, John (2017) 'Luck, justice and systemic �nancial risk.', Journal of applied philosophy., 34 (3). pp. 331-352. Further information on publisher's website: https://doi.org/10.1111/japp.12148 Publisher's copyright statement: This is the accepted version of the following article: Linarelli, J. (2017), Luck, Justice and Systemic Financial Risk. Journal of Applied Philosophy, 34(3): 331-352, which has been published in �nal form at https://doi.org/10.1111/japp.12148. This article may be used for non-commercial purposes in accordance With Wiley Terms and Conditions for self-archiving. Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro�t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 https://dro.dur.ac.uk https://www.dur.ac.uk https://doi.org/10.1111/japp.12148 http://dro.dur.ac.uk/15942/ https://dro.dur.ac.uk/policies/usepolicy.pdf https://dro.dur.ac.uk Luck, Justice and Systemic Financial Risk John Linarelli Durham University * Risk in a globalised, interdependent and de-territorialised world has a ubiquitous quality. Consider the complex chains of individual consumer and financial transactions widely attributed with bringing about the 2008-09 economic crisis (the so-called Great Recession), the effects of which remain with us to this day. The Great Recession brought attention to a tragedy of the commons in financial markets, in which market participants, from the first-time home buyer, to the most sophisticated market actors on Wall Street, in the City of London and in other major financial centres, acted in ways beneficial to each of them individually, but when those actions combined together the result was catastrophic. The Great Recession was a man-made disaster with features all too similar to other man-made disasters such as climate change or depletion of natural resources. 1 At least two kinds of risk are at play in complex chains of transactions in financial markets: ordinary market risk and systemic risk. Ordinary market risk is risk that one assumes for oneself when one transacts in a market. For example, if I buy a house, I assume the risk that the value of the house will decline. I also assume the benefit of a rise in the price of the house. Systemic risk is different. My transaction does not impose a risk on me, or at least not only on me, but also on others. The World Economic Forum has identified systemic financial risk as a major global concern in * My sincerest thanks to Orkun Akseli, Carl Cranor, Rita de la Feria, William Lucy, and Pietro Maffettone for their helpful comments. If I have left anyone out of this list, my apologies. My sincerest thanks also to two anonymous referees for their valuable and constructive comments, from which this article has benefitted substantially. All errors are mine. 1 The result is even similar to natural disasters, which in some cases, while not preventable, are foreseeable and precautions to mitigate risk ex ante are reasonable. 2 its 2014 report, Global Risks 2014. 2 That report defines systemic risk as: the risk of ‘breakdowns in an entire system, as opposed to breakdowns in individual parts and components’. Systemic risks are characterized by: – modest tipping points combining indirectly to produce large failures – risk-sharing or contagion, as one loss triggers a chain of others – ’hysteresis,’ or systems being unable to recover equilibrium after a shock. 3 Using this definition, in the actions leading to the Great Recession, market or institutional failure did not only affect the market participants in their own transactions. That would be market risk. Rather, the financial loss spread like a contagion, triggering a chain of catastrophic shocks to the financial markets, leading to a global economic crisis of catastrophic proportions. Such collective harm cases beg for an institutional response. No single action of any one market participant will be sufficient to mitigate systemic risk. Systemic risk mitigation requires substantial coordination, ex ante regulation by authorities, and assurances that regulation will be effective. The law can be designed to either prevent harm from occurring, to provide compensation or other remedy ex post in the event harm occurs, or both. It is in large part a problem relating to the structure of a society, about how institutions shape or limit the range of individual actions. Two moral questions are relevant in these contexts. First, does a person have a 2 World Economic Forum, Global Risks 2014 (9 th ed.). 3 Ibid., p. 12. The Report quotes G.G. Kaufman & K. E Scott, ‘What is Systemic Risk, and Do Bank Regulators Retard or Contribute to It?, Independent Review 7 (2003), pp. 371-391, 371. In an early important article on systemic risk and global financial crises, Steven Schwarcz defined systemic risk in the context of a failure of financial markets as follows: [T]he risk that (i) an economic shock such as market or institutional failure triggers (through a panic or otherwise) either (X) the failure of a chain of markets or institutions or (Y) a chain of significant losses to financial institutions, (ii) resulting in increases in the cost of capital or decreases in its availability, often evidenced by substantial financial-market-price volatility. Steven L. Schwarz, ‘Systemic Risk,’ Georgetown Law Journal 97 (2008), pp. 193-249, 204. See also Viral V. Acharya, Lasse Pederson, Thomas Philippon & Mathew Richardson, ‘Regulating Systemic Risk,’ in Viral V. Acharya & M. Richardson eds., Restoring Financial Stability: How to Repair a Failed System (Hoboken: Wiley): 283-303; Olivier de Bandt & Philip Hartmann, ‘Systemic Risk: A Survey,’ European Central Bank Working Paper 35 (Nov. 2000). 3 moral duty to avoid loss or harm (or risk of loss or harm) to others if her financial transactions contribute in some way, however small, to the loss or harm? In such cases the actions of a person, on her own, cause no harm or loss, but when taken together with the actions of others, causes harm or loss, sometimes substantial harm or loss. I do not mean loss or harm relating to the bargaining power of persons in a contractual privity relationship, such as between debtor and creditor. Rather, I mean loss or harm to third persons not party to any contract with the parties to the transaction. As we shall see, the answer to this question does not proceed along the lines of a simple generalisation around the idea of ‘what if everyone did that’? Second, how should society distribute the risk of loss associated with economic crises? The distribution to which I refer is not distribution within an exchange or transaction, for that would take us back into the debtor-creditor relationship, but risk across persons who may or may not be party to particular exchanges or transactions. The answer to the first question may be relevant to the second but not in all cases or in all approaches to answering these questions. The questions are related to the extent that we want to distribute risks on the basis of some concept of moral responsibility. For the second question, what is relevant is distribution of burdens and benefits through regulation by the state. 4 The primary aim of egalitarian theory is to mitigate or eliminate risk to persons in a way that complies with suitable principles of fair distribution. When we look at the collective nature of these risks, we ask how we might distribute the risk, or at least distribute the burdens of a regulatory regime 4 To be clear, loss or harm cannot be neatly separated from risk of loss or harm. See Claire Finkelstein, ‘Is Risk A Harm,’ University of Pennsylvania Law Review 151 (2003), pp. 963-1001. Risk of loss or harm is simply loss or harm discounted by the probability of the risk-causing event occurring. For example, if a 50% chance of a $100,000 loss exists, then the risk exposure to a rational, risk neutral person is $50,000. In other words, a rational, risk neutral person would buy $50,000 of insurance, if available at an acceptable cost, to cover the potential loss. When we talk about who bears a risk we ask who bears the cost of a risk-causing activity, or in our focus here, on the cost or burdens of taking measures to prevent harm or loss from occurring. 4 designed to avoid or mitigate the risk. A number of ways to distribute the burdens of risk present themselves to us. We could distribute on the basis of a consequentialist account of economic externalities and a requirement that people bear the full social costs for their activities. We could distribute using a contractualist standard of reasonable rejection, such as on the basis of a Rawlsian-type difference principle. As I show below, luck egalitarianism offers promise in working through these issues if we are interested in considerations of both equality and responsibility. These two questions can be understood from interactional and institutional standpoints. For interactional morality, the focus is on individual action. It places demands directly on persons. 5 Another approach is institutional. 6 It takes the morality of communities, or what is usually known as political morality, to be primary. Finance is a human activity, a set of social practices made possible by institutions. These actions, social practices, and institutions have consequences for persons who engage in financial transactions as well for the general population, which includes many who do not engage in financial transactions or engage in transactions with no consequences by themselves. We therefore have to ask what moral obligations institutions ‘deliver’ for us as a community. The second approach takes into account that institutions have great influence on the sorts of risk that might arise in financial markets and how these risks are distributed. Massively complex financial markets, which connect strangers in webs of transactions that can span the globe and cross 5 These concepts are from Thomas Pogge, ‘Cosmopolitanism and Sovereignty,’ Ethics 103(1) (1992), pp. 48-75; Thomas Pogge, John Rawls: His Life and Theory of Justice (Oxford University Press, 2007), pp. 31-34. 6 See Carl F. Cranor, ‘Collective and Individual Duties to Address Global Warming,’ in David M. Driesen, Economic Thought and U.S. Climate Change Policy (MIT Press, 2010), pp. 155-169; Carl F. Cranor, ‘Collective and Individual Duties to Protect the Environment,’ Journal of Applied Philosophy 2 (1985), pp. 243-259. 5 borders with the stroke of a keyboard, cannot exist without institutions. This is a work of moral and political philosophy. My aim here is to articulate the moral concepts that we might want to use either to inform the promulgation of law regulating financial markets or to justify that law from a moral point of view. The moral theories applied below cannot tell us, however, which approaches to financial regulation might be effective in an economic sense, as that is a question of economic policy, not philosophy. An egalitarian asks, of the menu of available economic policies, which is fair or just in a distributional sense? This is not to suggest that egalitarian and other moral concerns have to give way to economic ones or that economics is overriding. In fact a society might accept some levels of cost and inefficiency to obtain a relatively fairer result in law and public policy. We also need to be clear that the discussion proceeds from the assumption that societies are in a position to maintain adequate credit markets and financial institutions for the supply of mortgage credit to homeowners, in economic conditions, including employment conditions and consumption patterns, in which home ownership is economically feasible. This paper does not deal with problems of extreme poverty associated with the lack of functioning credit and other market institutions. Having stated this qualification, the systemic risk flowing from risky financial activities can have serious adverse affects on countries lacking such institutions as well as their populaces. It is also important to clarify that the discussion to follow is directed at the home mortgage market, the collapse of which in specific countries is widely understood to have been a primary contagion for the Great Recession. 6 1. Moral Responsibility of Individual Agents What moral responsibility might an individual agent have in cases in which the agent’s financial decisions are unlikely to cause financial harm or loss to others on their own but when accumulated with the decisions of many others risks substantial financial harm? Preliminarily, I want to rule out the discussion of financial crises for single agents, with no implications of external effects on others, except possibly for persons with which our single agent might have some sort of contractual privity. In such cases, moral responsibility may be relevant, if it is true that failure to pay one’s debts through one’s own fault has moral relevance, though it might not be so easy to distinguish individual circumstances from structural causes for a person’s financial problems. 7 This paper is not about these cases. Rather, the focus here is on financial crises for states and societies, which, given the economic interdependence of states, spill over to be international in effect. The focus in this part of the paper is on interactional morality, on the moral responsibility of persons in these cases. From the standpoint of individual agency, three conditions are relevant, which we can specify as freedom-relevant, practical and epistemic. 8 The freedom-relevant condition captures the idea that a person can be morally responsible only if she acts freely. It deals with the question of alternate possibilities. The basic intuition is that we cannot be morally responsible unless we could do otherwise. This may be false, if compatibilists are right. A ‘metaphysics free’ version of free agency can be posed here, focusing on the intrusion of institutions and social structure on agency. Intervention by these socially constructed forces might take away from the 7 See Iris Marion Young, Responsibility for Justice (Oxford University Press, 2011). As explained in the section to follow, a focus on desert rather than on choice can help to deal with when so-called bad brute luck should be neutralized in debt contracts. 8 I adapt the ‘freedom-relevant’ language and concept from John Martin Fischer and Mark Ravizza eds., Perspectives on Moral Responsibility (Cornell University Press, 1993), p. 8. For a full account on the epistemic condition, see George Sher, Who Knew: Responsibility Without Awareness (Oxford University Press, 2009). 7 voluntariness of an act and might prevent an agent from being attributively responsible and hence affect the blameworthiness of an act. 9 Or, they might alter the determination of which principles it is reasonable to reject and therefore affect substantive responsibility, or what an agent owes as moral duties to others. 10 These considerations have special relevance in the case of contributory harm of the sort we are talking about here, where chains of events might combine to result in harm to many people. It just might be true, as an empirical matter, that institutions, if sufficiently pervasive, restrict freedom in such a way as to relieve a person of moral responsibility. 11 The practical condition deals with the question whether a person’s actions make a difference. Why do we care about the agent’s actions or failure to act? The practical condition is strictly necessary for a consequentialist argument to be successful. Consequentialism condemns an act only if it makes a difference. In the case of mass financial harm of the sort under consideration here, an agent’s act on its own likely does make a difference, but the difference may be negligible, or, in Derek Parfit’s terminology, imperceptible. Parfit argues that it is a mistake to claim that if some act produces imperceptible effects, then it cannot be wrong, because the sum of imperceptible effects adds up to perceptible effects. The contribution of a single person matters. 12 But the sort of generalisation arguments that consequentalists employ in these kinds of mass harm cases cannot lead to the conclusion that no one 9 I use here Scanlon’s distinction between attributive and substantive responsibility. T.M. Scanlon, What We Owe to Each Other (Harvard University Press, 1998), pp. 248-294. 10 These concepts are from Scanlon, n. 9. 11 A contractualist might base the freedom-relevant condition on Scanlon’s Causal Thesis. Ibid., pp. 261-276. 12 Derek Parfit, Reasons and Persons (Oxford University Press, 1984). Parfit’s more recent work is Kantian in approach. Derek Parfit, On What Matters (Oxford University Press, 2011), Vol. 1, pp. 301- 320. See also Shelly Kagan, ‘Do I Make a Difference?,’ Philosophy and Public Affairs 39(2) (2011), pp. 105-141. 8 should take action that could result in harm collectively when many do it. 13 There may be some threshold at which some people doing the particular act might too low a number to trigger the feared harm, or it may actually be desirable if those persons so act. A potential weakness for consequentialism to operate in these complex financial cases is the need for substantial information available to persons to know which of them can act. It is less demanding on persons if institutions do the allocating of permissible actions for them. For contractualists (and other deontologists), bad consequences are not dispositive to the outcome of moral deliberation or appraisal, but are still relevant. The main concern in a contractualist account is not whether some moral principle prohibits acts that contribute imperceptible differences to bad consequences but that it might place unreasonably disproportionate burdens on a person to avoid contributing to harm to others. The focus of contractualist argument is not on consequences alone or primarily but on why it is wrong to act or not to act in the face of consequences. The epistemic condition relates to the knowledge of the agent deliberating on action. What if an agent neither knows nor should have known that their act causes or contributes to harm? There are a number of elements in a full account of the epistemic condition. For example, George Sher’s ‘full epistemic condition’ or FEC for moral responsibility specifies a number of conditions for praise or blameworthiness. 14 Two 13 Questions about generalisation became prominent in the work of Marcus Singer, with the publication in 1961 of his Generalization in Ethics - An Essay in the Logic of Ethics, with the Rudiments of a System of Moral Philosophy (Knopf, 1961). The above is influenced by Edna Ullman-Margalit’s critique of Singer. Edna Ullman Margalit, ‘The Generalization Argument: Where Does the Obligation Lie?,’ The Journal of Philosophy 73 (15) (1976), pp. 511-522, p. 513. 14 Sher’s FEC is as follows: When someone performs an act in a way that satisfies the voluntariness condition, and when he also satisfies any other conditions for responsibility that are independent of the epistemic condition, he is responsible for his act's morally or prudentially relevant feature if, but only if, he either (1) is consciously aware that the act has that feature (i.e., is wrong or foolish or right or prudent) when he performs it; or else 9 of these conditions very roughly comprise what in the law might be understood as a negligence standard: knew or should have known. If a person knows or should know that their actions harm others, then the epistemic condition is satisfied for declaring their actions to be wrong. Sher also argues for moral wrongness when some act ‘falls below some applicable standard,’ and ‘is caused by the interaction of some combination of his constitutive attitudes, dispositions, and traits’. 15 This latter standard captures the idea of greed in a financial context: a greedy person has the wrong constitutive attitudes and is morally responsible for the financial harm she causes or contributes to, even if she does not know, nor ought to have known, of the harm. This distinction is important, for example, to distinguish home lenders who enter into a subprime mortgage to be able to afford a decent home for their family and those who do so because they have been irresponsible about credit. Using the three conditions, we can test out alternative moral principles using well- accepted constructivist methods. Start with a simple contributory harm principle: Principle CH: It is wrong to act in ways that contribute to harm to another person. What does it mean to contribute to harm to others? The contribution feature in Principle CH assists in compliance with the practical condition. Implicit in Principle CH is that an imperceptible difference has moral significance, but we know that an imperceptible difference on its own is not a significant problem for either consequentialist or contractualists. The main concern about Principle CH, at least to a (2) is unaware that the act is wrong or foolish despite having evidence for its wrongness or foolishness his failure to recognize which (a) falls below some applicable standard, and (b) is caused by the interaction of some combination of his constitutive attitudes, dispositions, and traits; or else (3) is unaware that the act is right or prudent despite having made enough cognitive contact with the evidence for its rightness or prudence to enable him to perform the act on that basis. Sher, n. 8, p. 143. Sher calls FEC ‘complicated and unlovely’ Ibid., p. 144. 15 Ibid., p. 143. 10 contractualist, is not whether it prohibits acts contributing an imperceptible difference to bad consequences but that it might place unreasonably disproportionate burdens on a person to avoid contributing to harm to others. 16 This is, in contrast, not a problem for consequentialists. The disproportionate burdens problem relates not to the practical condition but to the freedom-relevant condition. Principle CH lacks constraints of reasonableness, core to contractualism. Principle CH is too demanding to be contractualist though it may work as a consequentialist principle. Finally, Principle CH does not address the epistemic condition. Consider the following modification: Principle CH1: It is wrong to act in ways that contribute to harm to another person (or n persons) if an agent’s refraining from acting would not place disproportionate burdens on the agent. Notions of reasonableness and separateness of persons come into Principle CH2. They are essential requirements in contractualism and serve to implement the freedom- relevant condition. These concepts give us some latitude to lessen the demands of generalisation arguments. The problem with these principles so far, however, is they do not address the epistemic condition. What if an agent does not know nor could have known of the effects of her actions when combined with the actions of numerous others? Agents are unlikely to be morally responsible for outcomes about which they could not have reasonably known. Our reactive attitude in such cases will not be to condemn such acts. Moreover, there might be cases in which a person does not know or could not have known of the risks associated with their actions, yet we still might hold them morally responsible if we can point to some failure to meet an accepted standard of behaviour of the person 16 Moreover, the focus of Principle CH is on wrongness and not undesirability as there may be many things which are undesirable but which do not involve morality. It may be undesirable to eat with one’s hands rather than with cutlery or chopsticks but it is not a moral problem if many people engage in sloppy eating. 11 which would merit moral responsibility. 17 An agent likely has reason to reject attempts to make her morally responsible for actions she had no way of knowing would result in the harm they cause or which are not the result of failures to comply with well-accepted standards of behaviour relating to financial risk. The epistemic condition suggests a further modification of our principle: Principle CH2: It is wrong to act in ways that contribute to harm to another person (or n persons) if (1a) the agent knew or should have known that her actions would contribute to the harm or (1b) the agent’s actions fail to meet some applicable standard of behaviour resulting from a combination of constitutive attitudes, dispositions, and traits; and (2) the agent’s refraining from acting would not place disproportionate burdens on her own freedom of action. Principle CH2 meets all three of our conditions. The harm contribution principle embedded within it meets the practical condition. The epistemic principles embedded in 1a and 1b meet the epistemic condition. The disproportionate burdens requirement in 2 brings Principle CH2 into compliance with the freedom-relevant condition. The ‘some applicable standard’ language in 1b is from Sher’s notion of ‘some standard of rationality or reasonableness’, which he argues are canonically expressed in tort and criminal law. 18 With Principle CH2 in hand, we can now begin to get more specific about financial harm contexts. In such contexts, not all of the participants in the collective action that is causing the harm are doing the same thing. Actors in a financial crisis situation are differentiated, in a way that makes a difference to moral responsibility. 17 I am not convinced the applicable standard element, found in 1b of Principle CH2, is needed if we have a properly objective and expansive ‘should have known’ element, but I will take Sher’s approach as stipulated for our purposes. As we will see below, it helps us to clothe the ‘greedy homeowner’ with moral responsibility despite their lack of awareness of the harm their risky action produces. 18 Sher, n. 8, p. 80. 12 Some of the relevant agents are unsophisticated consumers. Others are sophisticated financial institutions. The actions of some make a very significant difference to the crisis. Others are simply first time homebuyers working hard to buy a decent house for their family. Many individual actions by themselves may have been legally permissible and in fact encouraged by government policy, such as by mortgage securitisation, which the US federal government subsidised for many years, partly to encourage individual home ownership by those least able to afford it, though also to support the market for securities produced from mortgage securitisation, so-called mortgage-backed securities. 19 To put some details in the analysis, assume a five-person society comprised of ‘citizen’, ‘lender’, ‘consumer borrower’, and ‘market professional’. We can further divide ‘market professional’ into sophisticates and non-sophisticates. The lender lends mortgage loans to the consumer borrower. An example of a market professional who is also a sophisticate is a financial institution such as a bank, a loan originator or an institution responsible for securitising mortgages, such as a ‘packager’ of loans. 20 An example of a market professional who is probably not a sophisticate is a residential real estate agent. The financial institution could produce and trade in financial products that come from the debt contracts between borrower and lender. An example of such a product is mortgage-backed securities. The citizen is a representative third party who suffers harm from the financial activities of the others. The citizen has no moral responsibility but will suffer great harm and will not be discussed further in this part of the paper. What is the moral responsibility of these archetypes in our idealised society? 19 See Afit Mian & Amir Sufi, House of Debt (University of Chicago Press, 2014), pp. 95-105. 20 Use of ‘person’, ‘agent,’ or ‘actor,’ in this paper refers to natural or legal persons as the context warrants. 13 Much of what I am about to say is tentative because it depends on empirical considerations and is therefore outside of the scope of moral philosophy. But we can draw basic conclusions. Start with the single consumer borrower. An example might be a first time homebuyer who took out a subprime mortgage. The adverse effects of the subprime mortgage market on financial markets in the most recent financial crisis are well understood. It may be privately beneficial for the homebuyer to enter a mortgage that pushes to the limits of affordability, such as a risky subprime mortgage. It may also be necessary. The borrower may need to buy the house to get her children into a decent school because her government fails to provide equality of opportunity in education. She may need to get on the home buying ladder to leave an oppressive rental market or because her government fails to provide decent social housing. Or, she may simply want to buy better accommodation. Other alternatives are that she has poor credit because of bad choices, or is living beyond her means. Regardless of the reasons why a borrower enters into a risky mortgage, when many people enter into similarly risky mortgages, the result can be disastrous. Let’s apply Principle CH2 to our consumer borrower. Two problems seem apparent, and they stem from the epistemic condition. First, if we understand Principle CH2 to reflect consequentialist insights, how does an agent know if they are in the category of agents who should not take the action resulting in the imperceptible difference? Certainly there will be some level of risky mortgages that will be acceptable or even beneficial. There may be some optimal number of risky mortgages posing low risks to the financial system yet benefit poor recipients greatly. Second, how shall our individual agent weigh or compare good and bad consequences? If she is required to aggregate for bad consequences for the financial system, should she not 14 also be required to aggregate for good consequences? It is likely that the consumer borrower cannot meet the knew or should have known standard in Principle CH2. There may however be a ‘greedy homeowner’ category if particular constitutive attitudes make a consumer borrower profligate or risk friendly. If our consumer borrower does not fall into this category a further impediment to holding her morally responsible, which comes from Principle CH2’s contractualist features, is that refraining from entering into a mortgage transaction may place disproportionate burdens on the consumer borrower’s freedom of action if she is a first time home buyer trying to enter the property ladder, a parent trying to make a decent life for her family in an unjust society with inadequate social housing, and so on. The bottom line is that there will be many contexts in which the consumer borrower is not morally responsible for mass financial harm. The lender situation is different. Here we likely have a situation in which Principle CH2 imposes moral responsibility. The actions of lenders in many cases are likely to make a significant difference. They have likely significantly contributed to harm. Some of the more sophisticated market participants knew or should have known that their risky activities would be the cause of significant financial harm. If they were greedy or in pursuit of extraordinary profits, their particular constitutive attitudes provide the necessary element to comply with the epistemic condition in Principle CH2, regardless of whether they knew or should have known of the risks.. It is doubtful that lenders suffer disproportionate burdens if they refrain from actions that lead to systemic financial harm. With the existence of established capital markets in the form of stock exchanges, the lender’s shareholders have the option to move their financial holdings to other investments to produce similar returns but which would not contribute to systemic financial risk. Moral responsibility seems clear in 15 many lender cases. Consider the sophisticated market professional. Here is a stylised example. ‘Financial institution’ securitizes home mortgages. They use structured finance to pool loans and create securities from loan pools, rated and classified by default risk. They know that some of the mortgages they acquire were created as a result of subprime lending and that this subprime lending dramatically increases the risk of default by borrowers on loans. They know that securitization facilitates subprime lending and the benefits from it. They also know that they are not the only enterprise in the securitization business and that there is a cascading risk from creating securities from subprime loans that goes beyond the risk of default by borrowers. 21 Principle CH2 seems to clearly place moral responsibility on this sophisticated market professional to refrain from contributing to systemic financial risk. This financial institution contributes to systemic risk and the harm that follows and knows or should know that it is doing so. They and their shareholders plausibly have alternative investment strategies and so could reasonably refrain from contributing to this risk. That they may make less of a return on investment in these alternative investment strategies may be true, but their focus only on maximising their own gain regardless of the consequences is unreasonable and suggests a set of constitutive attitudes that would violate Principle CH2. What about unsophisticated market professional? Consider the following example. ‘Real estate agent’ works hard to assist first time homebuyers in buying houses. She is the sole wage earner for her family. She does not work on the financing side of the industry. She is aware that some of her clients enter into subprime 21 I use the subprime mortgage example only to provide concreteness to the case study. The availability of subprime mortgages has been severely restricted since the Great Recession. 16 mortgages, but she is not involved in setting up these mortgages. She could try to refer her clients to more conservative mortgage brokers but her firm requires her to use a particular broker and if she violated this policy, she could lose her job. Even if she could refer her clients to other mortgage brokers, there is the possibility that this will reduce her own income substantially, and she feels that she should be able to rely on the buyer’s own choices in the matter. Real estate agent is aware that the above financial institution is securitizing many of these risky loans and the risky loans of others. She thinks that one day the bubble will indeed burst. It is unclear whether Principle CH2 imposes moral responsibility on the real estate agent. The conduct of the Real Estate Agent likely only meets the epistemic conditions of Principle CH2. She knows there is a problem and her discontinuing her actions might be the right result if we focus solely on a consequentialist account of imperceptible difference, but under our Principle CH2 requiring that she act might violate the freedom relevant condition – it may place disproportionate burdens on her freedom of action. It would benefit society if she stopped working in her line of business but it may be difficult for us (society) to ask her to do so as a matter of individual choice, unless we give her other options. Here we see that institutions may be needed to solve this collective action problem. To conclude, this first part of the paper is moral philosophy about the actions of individual agents when faced with financial decision making. Does a person have a moral duty to avoid a particular financial transaction or set of financial transactions that might contribute in some way, however slight, to harm to others who may not be parties to the transaction or set of transactions? The answer is, it depends. To get this question to be tractable, I developed a five-person idealised society comprised of citizen, consumer borrower, lender, and two different kinds of market professionals, 17 depending on the level of their sophistication about finance. I then evaluated the conduct of these agents using a moral principle that I worked out of the conditions in which persons might be morally responsible for their individual actions in mass or collective financial harm cases. Consumer borrowers are unlikely to have moral duties to avoid financial transactions unless they have some special knowledge of the effects of their acts on others or if they fail to meet some applicable standard of conduct, such as when they are risk friendly profligate spenders. The lender is morally responsible in most cases and will owe duties to avoid financial systemic risk in their lending activities. The market professional cases are unclear and depend primarily on the level of knowledge of the market professional and their ability to do otherwise without disproportionate burdens on their livelihood. The citizen is an innocent bystander and has no moral duties in the contexts of individual or interactional morality. But our idealized citizen may have a role in promoting institutions to deal with the problems of collective financial harm. The analysis so far does not deal with the role of institutions. On the role of institutions, Ullman Margalit has argued that the generalisation argument is a derivative obligation imposed on individuals, with the primary obligation on the relevant community to impose these obligations on individual agents. 22 According to Ullman-Margalit, the relevant community has the primary obligation to ‘see to it’ that an appropriate number of community members do not do the putatively risky or harmful action in question. Obligations on agents will flow not from interactional morality, or at least not only from interactional morality, but from the authority of the community to command agents to act or refrain from acting in particular ways. 22 Ullman-Margalit, n. 13, pp. 517-520. 18 2. The Distribution of Systemic Financial Risk Societies can and do allocate financial risk in a number of ways, either by accident, design, or a combination of both. Actual policy prescriptions in banking and finance areas rely primary on concerns about macroeconomics and stability in national economies and the global economy. 23 Distributional considerations rarely enter the mix and when they do, they do so haphazardly. My aim here is to fill that gap by offering a way to morally justify the distribution of systemic financial risk. As explained below, I develop an approach relying on resource-based luck egalitarianism to allocate systemic financial risk. In addition to morally justifiable legal principles at work in the distribution of systemic financial risk, we also want the rules to be rational and efficacious. In a wide reflective equilibrium, we should inquire about non-moral considerations, such as the economic effects of legal rules. Economics is influential in real-world institutional design and it provides tools for understanding how public policy designed around principles of political morality might actually operate in a society. In economic terms, systemic financial risk is an externality. It contributes to other externalities in the housing market, such as foreclosure or repossession externalities. 24 Financial crises create a classic market failure problem. If firms and individuals act in their own interest when they make decisions involving financial risk, they take only their own costs and benefits into account. More accurately, they take into account only costs they personally bear and benefits they directly receive. Iwan Anabtawi and 23 With the possible exception of the UK government, governments rarely if ever rely even on cost- benefit analysis to assess the effects of financial regulation. John C. Coates IV, ‘Cost Benefit Analysis of Financial Regulation: Case Studies and Implications’, Yale Law Journal 124 (2015), pp. 882-1345. 24 ‘Foreclosure’ is US terminology whilst ‘repossession is UK terminology. I rely on UK terminology in this paper. 19 Steven Schwarcz describes this as asymmetry in the distribution of gains and losses associated with financial decisions. 25 Financial decisions have undesirable spill-over effects, or what economists call negative externalities. Firms and individuals often do not bear the full social costs for their financial activities. A classic example of these externalities was the effect of subprime lending in the United States and elsewhere on the global economy, leading to the Great Recession. 26 Though some disagreement amongst economists persists about the causes of the Great Recession, some consensus has emerged. The financial crisis leading to the Great Recession was in substantial part triggered by a significant weakening of underwriting standards by lenders. This process began in late 2004 and continued on into early 2007. With the demand for ever-increasing returns from investors, participants in global financial markets (originators, underwriters, asset managers, credit rating agencies and investors) became complacent about risk. When real estate prices began to fall in the United States, defaults on subprime mortgages, many with adjustable rates triggering to higher rates, became substantial. These events led to a substantial decline in consumption by households. When credit rating agencies began to downgrade securitisation products, the market began to unravel. The result was spill-overs with dramatic consequences resulting in the worst economic crises in recorded history. The spread of loss was like a contagion, spreading from a few real estate markets in California and Florida across the globe. The single participants in these global webs of transactions each privately benefited in particular transactions but the combination of their actions lead to a collapse of the global economy. To bring egalitarianism to the discussion, let’s postulate two simple and highly 25 Iwan Anabrtawi & Steven Scharwz, ‘Regulating Systemic Risk: Towards an Analytical Framework, Notre Dame Law Review 86 (2011), pp. 1349-1412. 26 What follows is from The President’s Working Group on Financial Markets, Policy Statement on Financial Market Developments (March 2008). 20 stylized cases, one called ‘easy credit,’ reflecting what might be conditions before a financial crisis, and ‘tight credit’, reflecting what might be conditions after a financial crisis, when government increases regulation, ostensibly to decrease systemic risk. These states of affairs are simply placeholders for any government policy with the effect of making home mortgages more or less affordable to borrowers. As in the prior section, assume a five-person society comprised of ‘lender’, ‘borrower’, ‘market professional’ and ‘citizen’. The focus will be on lender, borrower and citizen, as the effects on them will be most important and effects on market professionals will be overlapping with and deriving from the effects on these primary actors. In addition the distributional implications favouring the lender over the borrower can be significant. 27 I will go step-by-step through the problem from the standpoint of a prominent version of luck egalitarianism, known as resource-based luck egalitarianism, the main proponents of which are Ronald Dworkin and Eric Rakowski, though Dworkin did not consider himself a luck egalitarian. 28 I will use Dworkin’s concept of an auction for the division of resources at the initial stages of society, his concept of hypothetical insurance to deal with inequalities, and his distinction between brute and option luck. A resource-based approach to luck egalitarianism allows us to avoid the propensity of welfare egalitarianism to compensate those who deliberately cultivate expensive tastes and even those not responsible for their expensive tastes and have so-called bad price luck. 29 In a resource-based account, we can avoid catering to people with 27 Mian & Sufi, n. 19, pp. 19-20. 28 Ronald Dworkin, ‘Equality of Resources’ in Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2000), pp. 65-119; Ronald Dworkin, ‘Equality, Luck & Hierarchy’, Philosophy and Public Affairs 31(2003), pp. 190-198; Eric Rakowski, Equal Justice (Oxford University Press, 1991). Of course, there are many who offer a resource-based account of egalitarianism. The emphasis here is on responsibility-sensitive accounts characterized as luck egalitarian. 29 As set forth in Dworkin, n. 28; G.A. Cohen, ‘Expensive Tastes Rides Again’, in Justine Burley ed., 21 expensive tastes in homes, or more generally, to people who seek substantial increases in their well-being from risky uses of credit. Government intervention is an admittedly crude instrument for managing people’s tastes and preferences and we may not care so much about catering to people’s expensive tastes, even if those tastes are not subject to the control of the people who have them. We are, rather, concerned about more serious effects of systemic financial risk on basic levels of need for housing and credit. 30 Private home ownership is a resource. As Dworkin argues in the first paragraph of ‘Equality of Resources’, the paper said to have begun modern-day accounts of luck egalitarianism, ‘equality of resources is a matter of equality in whatever resources are owned privately by individuals’. 31 Dworkin goes on to explain that private ownership ‘is not a single, unique relationship between a person and a material resource, but an open-textured relationship many aspects of which must be fixed politically’.’ 32 So, Dworkin concludes, ‘the question of what division of resources is an equal division must to some degree include the question of what powers someone who is assigned a resource thereby gains, and that in turn must include the further question of his right to veto whatever changes in those powers might be threatened through politics’. 33 Rakowski argues similarly, assuming that the resources available for division would be held privately and limiting his argument to those resources ‘that are placed in Dworkin and His Critics (Blackwell, 2004), pp. 3-29; Richard Arneson, ‘Equality and Equal Opportunity for Welfare,’ Philosophical Studies 56 (1989), pp. 77-93; John Roemer, Theories of Distributive Justice (Harvard University Press, 1996). 30 A welfare-based proponent might respond by arguing for an objective rather than subjective measure of welfare, through the development of some sort of objective list of acceptable levels of credit or home ownership. Whilst an objective welfare account might well be amenable to development, it adds unnecessary complexity when it comes to developing actual heuristics to guide public policy, and risks of dissolving into a resource based account at the level of public policy. 31 Dworkin, n. 28, p. 65. 32 Ibid. 33 Ibid. 22 individuals’ hands.’ 34 As we will discover below, when we enquire into the economic incidents of private home ownership financed by mortgage credit, we can disaggregate private ownership into a number of other resources. Let’s take a look at the private ownership rights of our archetypal agents in our simplified four-person model. We need to identify what could plausibly be identified as resources to be distributed to and from the various agents. From this position of identification of resources, we can then decide how to distribute these resources using a luck egalitarian framework. We will also need to understand the risks associated with these resource allocations and how to distribute these risks in a luck egalitarian framework, if these risks have the potential to change significant features or the values of these resources. The typical mortgage contract allocates rights and responsibilities to lender and borrower. In the usual arrangement found in countries maintaining substantial owner- occupied residential patterns financed by credit, 35 the borrower is a homeowner, residing in the home. The borrower is the debtor in a relationship of secured credit with a financial institution serving as the creditor. The resources the borrower receives are home ownership and credit. If the mortgage has a fixed interest rate, the borrower enjoys the benefits of that fixed rate and the resulting certainty of fixed payments over the life of the mortgage. If the mortgage interest rate is adjustable, the borrower benefits from downward interest rate adjustments but bears the risk of upward adjustments. A significant expected benefit of real property ownership is that the borrower gets to keep, or effectively ‘owns’, the market appreciation in the value of the property, though they also bear the full risk of market declines in property values. 34 Rakowski, n. 28, p. 66. 35 See Dan Andrews & Aida Caldera Sanchez, Drivers of Homeownership Rates in Selected OECD Countries (OECD, 2011); Jon Palmer, ‘Brits buy homes, the Germans rent – which of us has got it right?’, The Guardian, 19 March 2011. 23 The lender’s resources include those of the typical secured creditor, including return on investment in home loans in the form of interest on funds lent. For adjustable rate mortgages, the lender benefits from interest rate increases but these have to be offset by increased costs of funds from depositors caused by general interest rate increases in the economy. Our model has simplified matters but we could add the resource that a typical lender does not lend its own funds but the funds of its depositors if it is a deposit institution such as a commercial bank. A lending resource that a bank has is leverage. Leverage ratios are a longstanding area of bank regulation. Finally, a lender is a creditor with a fixed claim on the asset securing the debt, which means that it can repossess the house serving as the security for the mortgage in the event of the borrower’s default on the mortgage. The citizen, a simplification for a typical person outside of the borrower-lender relationship, has the potential to enjoy economic stability as a result of the mitigation of systemic financial risk. Economic stability may be seen as a public good in an economic sense. 36 The citizen also benefits from the spread of private home ownership, to the extent that it benefits the community, as the social science evidence indicated. 37 Turning to the risks associated with the resources to be allocated, the lender has a fixed claim on the borrower and her asset during the duration of the mortgage, though some sharing of risk occurs on adjustable rate mortgages. It is fair to say that the 36 On the public good of financial stability, see Charles Wyplosz, ‘International Financial Stability’, in Inge Kaul, Isabelle Grunberg & Marc A. Stern eds., Global Public Goods: International Cooperation in the 21 st Century (United Nations Development Programme, 1999), pp. 152-189; Mads Andenas & Iris H. Y. Chiu, ‘Financial Stability and Legal Integration in Financial Regulation, European Law Review 38 (2013), pp. 335-359. The distinction between financial and economic stability is discussed below. 37 The literature is substantial. See, e.g., Edward Glaeser & Denise DiPasquale, ‘Incentives & Social Capital: Are Homeowners Better Citizens?’, Journal of Urban Economics 45 (1999), pp. 354-384; Sidney Verba, Kay Lehman Schlozman, & Henry Brady, Voice and Equality: Civic Volunteerism in American Politics (Harvard University Press, 1995). 24 lender has a fairly fixed income stream regardless of the value of the asset or the state of the economy. A mortgage is a debt contract, and these tend to be inflexible. The borrower benefits from market appreciation of the value of the house but also bears the risk of the decline in its value. The borrower bears the risk of default, which includes repossession and ultimate loss of home, for any number of reasons, either from her own actions or from a general downturn in the economy in which the borrower is put under the stress of reduced income or loss of employment. The lender does bear some systemic risk associated with serial repossessions, as they are in the business of lending and not home sales and generally disfavour having to deal with large inventories of repossessed houses in distressed markets. The citizen suffers from the effects of systemic risk and repossession externalities, and this is so regardless of her position in the housing market. The effects of systemic risk and repossession externalities on the citizen are both specific and general. The effects on the citizen are specific in a territorial or local sense. A citizen in a local context (such as in a housing estate) in which there have been substantial numbers of repossessions will likely suffer substantial loss as their net worth and means to promote their lives and to support their families decreases. If their net worth is low or negative to begin with, the harm can be catastrophic. The effects on the citizen are general in that national and even global economic declines contribute significant harm to the citizen, particularly if the citizen is of limited economic means. Now that we have identified the relevant resources and the risks associated with those resources, the next step is to decide how to distribute them in responsibility- sensitive ways. Assume that the initial stages of Dworkin’s island auction have occurred. Once the auction meeting Dworkin’s envy test has concluded, inequalities will still have to be dealt with as society progresses through subsequent market 25 exchanges and relationships. Dworkin developed the notion of hypothetical insurance to determine which inequalities would be justifiable. 38 The hypothetical insurance procedure is designed to be ambition sensitive but not endowment sensitive, which means that differences in people’s ambitions might result in unobjectionable inequalities but that inequalities from endowments such as disabilities, native talents, or accidents of birth should be neutralised. The hypothetical insurance model can be adapted for the situation here. For Dworkin, insurance ‘provides a link between brute and option luck, because the decision to buy or reject catastrophe insurance is a calculated gamble.’ 39 We do the same thing here, analogizing home mortgage defaults of the serial nature at issue here to be a catastrophe, albeit of an economic kind. The question becomes: how to neutralise bad brute luck in mortgage transactions and systemically? In a hypothetical decision making process about whether to buy insurance, which kinds of bad brute luck would it be rational for the borrower and the citizen to reject? The notion of insurance is a tempering device to get persons behind a veil of ignorance to assess what their insurance needs might rationally be in the mortgage market. We want to assess what a rational person would be willing to pay in insurance premiums ex ante to avoid risk in that market. In this process, we also will assess what a hypothetical insurer would be willing to underwrite. Of course, we need to take into account that our insurer is hypothetical and that in actual practice there may be no insurer willing to underwrite the risks we deal with here. Dworkin’s distinction between brute luck and option luck tells us a great deal about the distribution of systemic financial risk. The distinction between ordinary 38 The terminology of emerging inequalities is from Alexander Brown, Ronald Dworkin’s Theory of Equality: Domestic and Global Perspectives (Palgrave Macmillan 2009), pp. 58-63. 39 Ibid, p. 59. 26 market risk and systemic risk aligns closely with Dworkin’s distinction between option luck and brute luck. According to Dworkin, ordinary market risk is not morally arbitrary, in the sense that people who make market decisions, ‘take a gamble’ and are subject to option luck. 40 In this account, making a market decision is a choice. The harm associated with systemic financial risk, in contrast, seems a clear case of bad brute luck. Systemic financial risk has the potential to harm someone even if they had nothing to do with the transactions causing the harm. Exposure to systemic financial risk is an unfortunate circumstance having nothing to do with choosing but with being a participant in a market economy. In the context of the global financial crisis, a person like our citizen was out of the market entirely, without any mortgage, not involved in financial markets in any way, and yet losses cascading systemically through the financial system and the economy as a result of the actions of others caused her substantial loss of resources. But the distinction between brute and option luck, reflecting a distinction between choice and circumstances, might not be easy to make in many cases. 41 The elusiveness of the distinction can be handled in two ways. First, as explained below hypothetical insurance rules out insuring against expensive tastes. Second and alternatively, Richard Arneson offers a solution to this problem by asking us to distinguish between choice and desert catering luck egalitarianism. 42 Choice is essential but background facts also need to be considered. Here, we may give some latitude to borrowers with particular characteristics. Principle CH2 reflects the notion of desert. Assume two borrowers enter into identical risky mortgages they can barely 40 Dworkin explains that ‘option luck is a matter of how deliberate and calculated gambles turn out – whether someone gains or loses through accepting an isolated risk her or she should have anticipated and might have declined’. Dworkin, n. 28, p. 73. 41 Dworkin so acknowledges. Ronald Dworkin, ‘Justice, Insurance, and Luck’, in Dworkin, n. 28, pp. 320-350, 324. 42 Richard J. Arneson, ‘Luck Egalitarianism Interpreted and Defended’, Philosophical Topics 32 (2004), pp. 1-20. 27 afford. We might want to neutralise the bad luck of a borrower who is a first time home buyer, has been prudent with her finances, is in need of a decent home for her family with good schools, is in no position to know of the imperceptible effects of her risky mortgage on others, and may have a limited understanding of the effects of a risky mortgage on herself. 43 On the other hand, a profligate big spender with expensive tastes who pushes herself to the limits of affordability so that she can have a house she can conspicuously show off to her friends and colleagues will be less deserving of relief. We can, however, keep our account parsimonious and rely on the hypothetical insurance procedure to deal with this particular problem. With the above established we are now in a position to assess the risks our agents want to insure and whether a prudent insurer in our hypothetical world would provide the insurance at a premium our agents would be prepared to accept. 44 Let’s start with the borrower. Assume the borrower does not know her personal traits, whether she is the profligate big spender or first time home buyer, whether her actions will contribute to systemic financial risk, whether she will be adversely affected by systemic financial risk, whether she is rich or poor, or whether she has expensive tastes and bad price luck. In these hypothetical conditions, the borrower would want to insure against risk of loss of adequate housing resulting from adverse economic conditions or the terms and conditions of the mortgage contract. Adequacy of housing can be assessed relative to the society in which the borrower lives. 45 The borrower would want to insure against catastrophic loss of housing as a result of significant economic crises. The Borrower would not, however, insure to have significant 43 See Brown, n. 38, p. 59 on investment luck. 44 For a somewhat similar discussion about dangerous activities, natural disasters, business losses and business profits, See Rakowski, n. 28, pp. 79-87. 45 It is common in egalitarian theory to measure rights and opportunities in terms relative to the society in question. See, e.g, Norman Daniels, Just Health Care (Cambridge University Press, 1985), p. 53, in which Daniels argues that health care is a social good that is necessary for societies to provide to maintain normal species functioning at an opportunity range determined by one’s society. 28 housing wealth relative to other society members, or against extravagant tastes in housing. Very few people in a society acquire significant housing wealth or have extravagant tastes, and so the probability of a person being in these categories outside of the veil of ignorance is low. Alternatively stated, the risk of being not wealthy is very high and so the premiums to insure against it would be prohibitive. 46 Short of outright loss of home, the borrower would likely find it problematic to bear all or a significant proportion of the risk of loss from severe declines in home values. It is plausible to believe that she would want insurance coverage similar to natural disaster insurance. If a borrower were to lose a home or if the home were significantly damaged as a result of fire or a tornado, the borrower would likely have insurance to cover such losses. 47 In fact natural disaster insurance is usually required as a condition in a mortgage contract. Finally, the borrower behind a veil of ignorance might also find it problematic if others, such as the lender or its constituencies, such as the lender’s shareholders and depositors, 48 were to benefit from her bad brute luck. 49 Our borrower would probably not want the lender to benefit from the borrower’s default on a mortgage, resulting in borrower’s loss of her home. In addition, such a structure of the debt contract would produce poor incentives for the lender and hold the borrower hostage to the acts of predatory lenders. The borrower would want the lender to share in the downsides the borrower faces in the housing market. In short, no good brute luck from bad brute luck. As for the lender, there is substantial evidence that financial institutions have for 46 See Rakowski, n. 28, pp. 122. 47 Miaf & Sufi, n. 19, pp. 17-18. 48 As the U.S. Supreme Court has stated: ‘The relationship of bank and depositor is that of debtor and creditor, founded on contract.’ Bank ov Marin v. England, 385 U.S. 99 (1966). 49 Carl Knight, ‘Benefiting from Injustice and Brute Luck’, Social Theory and Practice 39 (2010), pp. 581-598. 29 many years pre- and post-Great Recession sought and obtained de facto insurance in the form of regulatory capture. 50 Regulatory capture occurs when a government regulator, ostensibly acting in the public interest, furthers the interests of firms being regulated rather than the beneficiaries of the regulation. Applying the regulatory capture insight to financial institutions, the argument would be that financial institutions effectively buy insurance in the form of protective regulation. 51 A possible example of regulatory capture is the ‘banks are different’ rationale that regulators have offered for subsidizing large banks instead of homeowners. 52 There may be sound economic reasons for protecting the payment system that banks provide for the economy, which would include deposit protection, a longstanding form of banking regulation going back to the early 20 th century. 53 But in the application of egalitarian theory to financial regulation post-Great Recession, the interests of lenders and their shareholders and non-depository creditors are entirely instrumental. Financial activity is not an end in itself but an instrument for producing economic well-being in a market oriented economy. If relatively more well-being could be produced by other forms of economic organisation that do not involve financial institutions, then financial institutions would lose the justification for their existence and it would be 50 The classic explanation of regulatory capture is in George Stigler, ‘The Theory of Economic Regulation’, in George Stigler ed., Chicago Studies in Political Economy (University of Chicago Press, 1988), pp. 209-233. 51 A vast literature exists on regulatory capture in the financial industry. See, e.g., Bank of England, ‘Regulators, Financial Industry and the Problem of Regulatory Capture, in Making Good Financial Regulation: Towards a Policy Response to Regulatory Capture (2012); Warwick Commission on International Financial Reform: In Praise of Unlevel Playing Fields, (2009, Ch. 5; Stefano Pagliari ed., Making Good Financial Regulation: Towards a Policy Response to Regulatory Capture (ICFR, 2012); James Kwak, ‘Cultural Capture and the Financial Crisis’, in Daniel Carpenter & David A. Moss, Preventing Regulatory Capture: Special Interest Influence and How to Limit It (Cambridge University Press, 2014), pp. 71-98; Lawrence G. Baxter, ‘”Capture” in Financial Regulation: Can We Channel it Toward the Common Good?’, Cornell Journal of Law and Public Policy 21 (2011), pp. 175-200; 52 Compare Marco Becht, Patrick Bolton & Alisa Röell, ‘Why Bank Governance is Different,’ Oxford Review of Economic Policy 27 (2011), pp. 437-463; Huberto John H. Boyd & Mark Gertler, ‘The Role of Large Banks in the Recent U.S. Banking Crisis’, Federal Reserve Bank of Minneapolis Quarterly Review (1994), pp. 319–68; Huberto M. Ennis & H.S. Malek, ‘Bank Risk of Failure and the Too-Big- To Fail Policy’, Federal Reserve Bank of Richmond Economic Quarterly 91 (2005), pp. 21-43. 53 Mufi & Sian, n. 19, pp. 119-134. 30 entirely appropriate to liquidate them all and prohibit their activities. 54 The point here is that we do not have to determine what sorts of insurance a lender might want or need in our hypothetical insurance market. At least in egalitarian theory as it is applied here, their interests are subordinate to those of others. The citizen is interested in the public good of economic stability and, if we accept the principal tenets of egalitarian theory, some form of distributive justice in the allocation of resources essential for pursuing one’s life projects. 55 The citizen is an archetype for the average person in a society or the average member of a social contract. Whilst much has been written about distributive justice, the public good of economic stability needs justification. The notion of a public good is from economics. A public good has two essential features: it is non-excludable and non-rivalrous, which means that persons cannot be effectively excluded from use of the good and use by one person does not reduce the availability of the good to others. 56 To insure that the public good of economic stability continues unabated, systemic financial risk and repossession externalities, which we can classify as public bads, need to be mitigated or eliminated. The citizen would want to insure against these public bads. To do this, we would want to monetize the relevant externalities to the extent feasible. The idea would be to give our citizen a right to stability in her economic affairs. The right then could then become a resource to be insured (or traded). Our archetypal 54 Shareholders can invest in other companies. A basic tenet of the efficient capital markets hypothesis in finance is that shareholders do not invest in firms because they ‘like’ a firm. Buying stock is not like buying shoes. Shareholders buy stock because of the particular risk and rate of return for the particular asset class that the stock happens to fall within. If an investment in a bank is no longer profitable compared to other investments, a rational shareholder will sell her bank shares and buy shares in the relatively more profitable investment. Hence the phrase, ‘seen one stock seen em all.’ The efficient capital markets hypothesis has come under some attack in the finance literature but its basic tenets remain true. See Eugene F. Fama, ‘Random Walks in Stock Market Prices’, Financial Analysts Journal, Sept./Oct. 1965; Richard A. Beasley & Stewart C. Myers, Principles of Corporate Finance (McGraw Hill, 2013). 55 The citizen does not care about financial stability per se. Financial stability is simply a route to economic stability. 56 Richard Cornes & Todd Sandler, The Theory of Externalities, Public Goods, and Club Goods (Cambridge University Press, 1996). 31 lender could be required to compensate the citizen for the risk of economic instability. The compensation could be hypothetical in the sense that the lender could be regulated in such a way that alters the distribution of burdens and benefits on lender and citizen, as well as on the borrower and others. We know that in actual capital markets, excessive volatility in asset prices is not actually priced into the market and not something that can be covered by actual insurance. 57 But in our hypothetical insurance market, a rational citizen behind the veil of ignorance would likely want to insure economic stability but minimize restrictions on borrowing by deserving borrowers in need of adequate housing. The citizen would want decent levels of adequate housing to be covered because the citizen does not know her position in the housing market and would want to insure a basic minimum for herself. Minimally adequate housing is a resource that is essential for a decent life. As well, the citizen would want others to have adequate housing, given the substantial benefits to society of people living stable lives in homes they own. The citizen would likely insure its right to stability to the point of reasonable economic prosperity and to avoid severe economic declines and volatility in the housing market. It would likely insure to reduce the risks of the public bads to some reasonably acceptable level, subject to the proviso that no vulnerable group would bear disproportionate burdens. The final step is to transform the results of the hypothetical insurance process into government policy. Recall Dworkin’s point that rights to resources are ‘fixed politically’. 58 As explained above, the borrower would insure against loss of adequate housing, risky crisis-prone economic conditions, disproportionate risk bearing on its mortgage, and undeserved benefits to others from its bad brute luck in home ownership. The citizen would look to minimize the public bads of economic 57 Wyplosz, n. 33, p. 157. 58 Dworkin, n. 28, p. 65. 32 instability from severe decline in home values and other economic shocks. Any number of policy recommendations could flow from these results, but one overriding result seems to be that borrowers and other vulnerable groups should not bear disproportionate burdens when policies are designed to mitigate or eliminate systemic financial risk and the externalities of economic crises. I call this the priority of risk assignment principle. It can be stated in shorthand as follows: Law and public policy to prevent or mitigate the effects of economic crises, when those crises relate to volatility in the financial system, should be designed to avoid imposing unreasonable burdens on persons who, as a result of bad brute luck, have not acted in ways to deserve the imposition of those burdens upon them. It is doubtful that governments have applied something like a priority of risk assignment principle when devising law and policy to mitigate or eliminate the risks under consideration here. Policies developed in early efforts to stabilise economies were morally problematic at best. 59 They included massive subsidizing of banks that were considered ‘too big to fail’ and little if any relief for borrowers. In fact many borrowers were made worse off because of the severe tightening of credit for borrowers least able to afford mortgages. 60 This is a policy of reverse-prioritarianism, based on a priority for the better off. Policies that came later are not much better. As an example, consider the UK’s Mortgage Market Review (MMR), which imposed obligations on lenders to assess the 59 This is not sound economic policy, though it is the one that was selected by the U.S. government and other governments. See Mian & Sufi, n. 19, 119-134. 60 See Emilios Avgouleas, Governance of Global Financial Markets: The Law, the Economics, the Politics (Cambridge University Press, 2012); Kathleen Kahle & Rene M. Stulz, ‘Access to Capital, Investment, and the Financial Crisis’, Journal of Financial Economics 110 (2010), pp. 280-299; Atif Mian, Amir Sufi, & Francesco Trebbi, ‘The Political Economy of the U.S. Mortgage Default Crisis’, American Economic Review 100 (2010), pp. 67-98; Pietro Veronesi & Luigi Zingales, ‘Paulson’s Gift’, Journal of Financial Economics 97 (2010), pp. 339-368; Stephen G. Checchetti, ‘Crisis and Responses: The Federal Reserve in the Early Stages of the Financial Crisis’, Journal of Economic Perspectives 23 (2009), pp. 51-75. 33 affordability of mortgages as a condition for mortgage approval. 61 The US Dodd Frank Act imposes similar ‘ability to pay’ obligations. 62 Imposing affordability requirements may reduce repossession externalities but at a substantial cost to a fair distribution of risk. The lenders will simply pass on the costs of prevention embedded in the affordability requirement to borrowers. Banks will do this by increasing rates of interest to compensate for risk, their traditional method for dealing with increased borrower risk, though they may not need to resort to this with strict affordability requirements. It is unlikely that they would go so far as to use the risky mortgage terms and conditions found in subprime mortgaging, such as balloon payments, or even interest only mortgages on an extensive basis, as these methods (quite rightly) are now very tightly restricted. Regrettably, they will reduce their costs by reducing the pool of potential borrowers. The costs they are limiting are the costs of lending in the form of risk of liability for lending to those unable to afford mortgages. The affordability requirements attempt to internalise the costs of the public bads onto banks, but banks will simply shift these costs onto consumers least able to afford loans and in need of such loans in many cases. Our deserving first time, young families, and lower income homebuyers will be unable to enter the housing market. With the decline in home ownership comes reduction in the benefits of home ownership to communities and the elimination of largest single source of wealth for individuals in societies with significant private home ownership. 63 The affordability 61 Mortgage Market Review (Conduct of Business) Instrument 2012, 27 Sept. 2012; Mortgage Market Review Feedback on CP11/31 and final rules (0ct. 2012). The Financial Conduct Authority is preparing to implement the EU Mortgage Credit Directive, 2014/17/EU, 4 Feb. 2014. 62 John Pottow, ‘Ability to Pay’, Berkeley Business Law Journal 8 (2011), pp. 175-208. 63 Karl E. Case, John M. Quigley, & Robert J. Shiller Jr., ‘Comparing Wealth Effects: The Stock Market versus the Housing Market’, Advances in Macroeconomics 5 (2005). Compare Charles Calomiris, Stanley D. Longhofer & William Miles, ‘The (Mythical?) Housing Wealth Effect’, NBER Working Paper No. 15075, June 2009. The relationship of housing and wealth to inequality is substantial. Research in the UK tends to focus on geographical and intergenerational inequality between regions. The Mortgage Market Review Equality Impact Assessment states tbat ‘no concerns were identified’ for racial equality. Mortgage Market Review, Feedback on CP11/31 and final rules 34 rules have only recently been promulgated and empirical studies will soon be needed to assess impact. Bank balance sheets should however improve, with fewer but higher quality mortgage loans on the books. Affordability policies by themselves are problematic but they may be coupled with other policies to decrease burdens on vulnerable populations. Governments could, for example, combine affordability requirements with assistance to particular groups of persons who have traditionally experienced difficulties in meeting affordability requirements, such as first time homebuyers. The UK government has, for example, put in place a ‘Help to Buy’ loan scheme to provide £9.7 billion to help eligible applicants into home ownership, as well as subsidies to the construction sector. 64 It is too early to assess the effectiveness of these schemes. Critics argue that help to buy programmes cause the very risk they try to alleviate, in particular systemic risk flowing from upward volatility in house prices, or so-called housing bubbles. These concerns are likely to be exaggerated because help to buy does not exist in isolation but is combined with restrictions on mortgage lending such as affordability requirements and with subsidies to the construction sector to build new homes. They also account for a fraction of the housing market. It is beyond egalitarian theory, however, to critically assess these economic effects. A way around these criticisms would be to fundamentally alter the terms of the mortgage contract. A mortgage is debt and with debt comes an inflexible set of fixed claims of creditors on debtors. Debt is conceptually oppositional to insurance at its root. Atif Mian and Amir Sufi argue that ‘debt is the anti-insurance. Instead of helping to share the risks associated with home ownership, it concentrates the risks on those (Oct. 2012, at A5:5. Substantial US research shows a link between housing and wealth inequality and race and ethnicity. See e.g., Lauren J. Krivo & Robert L. Kaufman, ‘The Relationship of Housing and Wealth Inequality to Race and Ethnicity, Demography 41 (2004), pp. 585-608. 64 http://www.helptobuy.org.uk 35 least able to afford it’. 65 By this they refer to what happens when house prices experience a steep decline in an economic crisis. As explained above, the mortgage contract places all risk of housing value declines on the borrower, the person usually most deserving of help and least deserving of shouldering all of this risk. As Mian and Sufi explain: When house prices in the aggregate collapse by 20 percent, the losses are concentrated on the borrowers in the economy. Given that borrowers already had low net worth before the crash (which is why they needed to borrow), the concentration of losses on them devastates their financial condition. They already had very little net worth – now they have even less. 66 The situation they describe differs fundamentally from the way that insurance operates. In an insurance context, the losses would be ‘covered’ in the sense that the insurance would compensate the borrower for the loss. In the hypothetical insurance market worked out above, the borrower would want to be insured against the catastrophic loss associated with the loss of her home as a result of an economic crisis. In contrast to the loss that the borrower incurs in the face of steep declines in housing values, the lender suffers significantly less. As Mian and Sufi explain, using the concept of ‘savers’ to represent the claims underlying those of the Lender: In contrast [to the substantial losses borrowers incur in a collapse of housing prices], the savers, who typically have a lot of financial assets and little mortgage debt, experience a much less severe decline in their net worth when house prices fall. This is because they ultimately own – through their deposits, bonds, and equity holdings – the senior claims on houses in the economy. 67 Mian and Sufi advocate a ‘shared responsibility mortgage’ or SRM, a hybrid concept with features of both debt and equity. 68 While the UK mortgage market is 65 Mian & Sufi, n. 19, p. 30. 66 Ibid., p. 19. 67 Ibid. 68 Ibid., pp. 171-174. 36 overwhelmingly in adjustable rate mortgages, which soften the blow to borrowers in economic declines, because interest rates decline as well in such periods, an SRM goes further. An SRM would be linked to a local house price index. If house prices rise or remain the same as when the mortgage was entered, the monthly mortgage payment stays the same as does the mortgage amortization schedule. If the house price index falls below the level it was when the borrower entered into the mortgage, the monthly mortgage payment reduces but the mortgage amortization schedule remains the same. This results in an automatic but temporary reduction of the mortgage principal. It is temporary because house prices tend to increase the longer the time period in which they are considered. So, when the local house price index increases, the mortgage payment and principal will revert to its initial state. To eliminate or reduce the possibility that the lender will increase mortgage interest rates to compensate for its risk in sharing the downside potential of the housing market, the SRM could give the lender, say, a five percent share of the capital gain when the home is sold or refinanced. The SRM is just one policy proposal that seems to comply with the luck egalitarian requirements set forth in the priority of risk assignment principle. Others are possible. It is beyond our scope here to exhaustively identify these options, but rather to elucidate why such options are necessary to achieve just results in the markets for mortgage credit. Conclusion This paper deals with one of the most complex areas of human interaction. What makes systemic financial risk even more difficult to take on in philosophy is that the workings of financial markets tend to be fully understood only by a relatively small number of specialists in economics, finance, and law. Financial markets are, however, 37 totally of our doing. We create them. Our social practices and our actions determine who gets what, who loses, and who gains. I have made what I consider to be an early first step in seeking to understand how persons should act when they are part of large groups of people making financial choices beneficial to each of them individually but substantially harmful to many others. In addition, we want to know how to distribute the systemic financial risk associated with these individual actions. To date, the overwhelming focus of inquiry has been in economics and finance, disciplines that have not traditionally focused on egalitarian concerns. I have attempted to steer this debate towards a discussion of the distributive implications of law and policy, looking to luck egalitarian theory to provide some tentative answers, with a focus on the paradigmatic transaction, that of buying a home with a mortgage that many individuals, often vulnerable, have to deal with if they are to pursue their life projects. Luck egalitarianism, I contend, offers substantial promise in helping societies reach consensus on how to allocate the burdens and benefits of financial regulation designed to mitigate or eliminate systemic financial risk. 
work_6poanjsjbjesnc4m3uutnjadxi	----	title Edinburgh Research Explorer Justice and Home Affairs Citation for published version: Walker, N & Newman, K 1998, 'Justice and Home Affairs', International and Comparative Law Quarterly, vol. 47, pp. 231-38. https://doi.org/10.1017/S0020589300061650 Digital Object Identifier (DOI): 10.1017/S0020589300061650 Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Published In: International and Comparative Law Quarterly Publisher Rights Statement: ©Walker, N., & Newman, K. (1998). Justice and Home Affairs. International and Comparative Law Quarterly, 47, 231-38doi: 10.1017/S0020589300061650 General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1017/S0020589300061650 https://doi.org/10.1017/S0020589300061650 https://www.research.ed.ac.uk/portal/en/publications/justice-and-home-affairs(935a0ff5-e54f-4791-b852-afe761a93f6c).html http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 JANUARY 1998] Current Developments: EC Law 231 also extends the Vlassopoulou recognition of qualifications4' (and not just pro- fessional experience as now) to those falling under these directives. Another case, Aranitis,'* has recently given rise to a most significant judgment on mutual recognition.65 Georgios Aranitis held a Greek diploma, "Ptichiouchos Geologjkos", which is awarded after four years of university studies in geology. He had worked as a geologist in Greece for over a decade. He then moved to Berlin where he wished to carry on working as a geologist. The local employment office in Berlin classified him as an "unskilled assistant". He challenged this classification, relying on the general directive on mutual recognition of professional qualifi- cations. The Arbtitsamt allowed him a literal translation of his Greek title, but refused to allow him to use the equivalent German qualification Diplom-Geo- loge.** The main distinction between the Greek and German qualification was the requirement in Germany of a dissertation." The profession of geologist was not considered to be regulated in Germany and the German authorities thus con- sidered that Aranitis was unable to rely on the mutual recognition directive. The Court agreed, observing that "whether or not a profession is regulated depends on the legal situation in the host member State and not on the conditions prevailing on the employment market in that member State".** But the Court went on to indicate" that Aranitis should, nevertheless, be able to rely on the Vlassopoulou jurisprudence which it extended to cover qualifications for unregulated occu- pations which could help holders gain employment. Thus, should an element of knowledge or ability not be attested to in Aranitis's Greek qualification the Ger- man authorities could refuse such recognition unless his practical or other aca- demic experience compensated for the deficit. It seems that the general case law has been extended to require competent authorities to assess the equivalence of the academic qualifications and, if missing elements are found, then experience, knowledge and ability subsequently acquired should be taken into account Con- fusion over qualifications could be averted by a tag indicating the qualification of origin. JULIAN LONBAY* II. JUSTICE AND H O M E A F F A IRS T H E addition of "Justice and Home Affairs" (JHA) to the list of subjects covered in Current Developments reflects the growing significance of this area of 63. See Lonbay (1992) 41I.C.L.Q. 212,215. 64. Case C-164/94 Georgios Aranitis v. Land Berlin [19%] E.C.R. 1-135. 65. The following analysis follows that used in J. Lonbay, "The Mutual Recognition of Professional Qualifications in the E C , in Hodgin et aL, Professional Liability: Law and Insurance (19%) Chap.l. 66. As Advocate General Leger stated, the Directive should not be used to "turn truth upside down by allowing persons who do not possess a certain diploma to make use of a diploma which they do not have": supra n.64, at para.45. 67. Report of the bearing: Sitzungsberichi, pp.2-3.1 am grateful to Alex Bosch for trans- lating this for me. 68. Supra n.64, at para23. 69. Idem, parasJO-32. * Director of the Institute of European Law, University of Birmingham. http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 232 International and Comparative Law Quarterly [VOL. 47 European law and policy within the overall Treaty framework. In this introduc- tory note, a brief account is given of the history of co-operation between EU mem- ber States in JHA matters, culminating in the significant changes announced in the Treaty of Amsterdam in October 1997. It is a historical record which is marked by discontinuity and institutional complexity, full justice to which would require detailed analysis.1 Here we confine ourselves instead to a broad-brush approach, seeking to highlight the main themes which have characterised JHA co-operation. In future notes particular areas and issues of current interest will be examined more closely. A. Before Maastricht Prior to the conclusion of the Treaty on European Union (TEU) at Maastricht in 1992 there was no formal recognition of JHA within the EC Treaty framework. Areas such as policing, criminal justice and immigration tended to be viewed as far removed from the economic core of Community activity. Further, as home affairs were traditionally regarded as closely bound up with the security and sovereignty of the nation State, the possibility of encroachment by a supranational organis- ation such as the European Community was jealously guarded against3 Yet as economic integration encouraged closer social and cultural ties across the Com- munity, the member States increasingly came to view modest co-operation in a number of JHA matters as mutually beneficial. Because of national sensibilities, however, such co-operation could only take place in the shadow of the Treaties. This informal activity may be seen as a series of discrete policy-making threads which, from the mid-1980s onwards, began to be woven together to form a coher- ent pattern.3 Two important early initiatives were provided by the Trevi and Schengen sys- tems. From 1975 onwards, Trevi served as an intergovernmental forum for mem- ber States to develop common measures, first in respect of counter-terrorism and latterly concerning drugs, organised crime, police training and technology and a range of other policing matters.4 Schengen was established with a wider remit but initially was restricted to a smaller group of States. The initial Schengen Agree- ment of 19853 paved the way for abolition of border controls between France, Germany and the Benelux countries. A more detailed Implementation Agree- ment of 1 990' established a number of related law-enforcement measures includ- 1. See e.g. R. Biebcr and J. Monar (Eds), Justice and Home Affairs in the European Union (1995); D . Cullen, J. Monar and P. Myers (Eds), Co-operation in Justice and Home Affairs: An Evaluation of the Third Pillar in Practice (1996); M. Anderson, M. den Boer, P. Cullen, W. C Gilmore, C D . Raab and N. Walker, Policing The European Union: Theory, Law and Practice (1995). 2. See N. Walker, "Policing the European Union: The Politics of Transition", in O. Marenin (Ed.), Policing Change, Changing Police (1996). 3. For a more detailed analysis, see J. Benyon, L. Turnbull, A. Willis, R. Woodward and A. Beck, Police Co-operation in Europe: An Investigation (1993). 4. Idem, pp.152-167. 5. A text in English is reproduced as an annex to H. Schemers et al (eds). Free Move- ment of Persons in Europe (1995), pp.547-551. 6. Idem, pp-552-605. http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 JANUARY 1998] Current Developments: EC Law 233 ing a computerised information system (Schengen Information System) and police co-operation. More broadly, it made provision for the development of com- mon policies on asylum and illegal immigration. Of the many other early developments in JHA co-operation, two stand out. First, there is immigration and the related matters of asylum and visa policy and practice. In the 1970s and 1980s there was a running dispute between the Com- mission and the member States over the competence of the Community to pro- ceed by supranational means, in particular by means of directives and decisions, as opposed to the more informal, State-centred method of intergovernmental co- operation. On the whole, the latter view prevailed, a position reinforced by the establishment in 1986 of the Ad Hoc Group on Immigration. Progress within the framework of the Community was also largely frustrated in the area of judicial co-operation in matters of criminal law. The work of the EC member States was consistently overshadowed by that of the larger regional organisation—the Council of Europe, which generated a substantial body of inter- national criminal legislation in the post-war years.7 A bold plan by Giscard D'Es- taing in the late 1970s to develop a common "European Judicial Space" across the Community ultimately foundered on its own excessive ambition, and criminal law and procedure duly remained outside EC competence. One casualty of this failure was a more modest intergovernmental steering group—the European Political Co-operation (EPC) Judicial Co-operation Working Group (JCWG)—although it was eventually reconstituted in the mid-1980s. Renewed impetus was given to the activities of a number of these agencies with the development in 1985 of the Commission's "1992" single market programme. If its deadline was to be honoured, co-ordination would be required over a wide range of matters, including the strand of single market policy most closely associ- ated with JHA—the free movement of persons. As the vehicle of an integrationist inner core of member States which wished to accelerate progress in this area, the Schengen system was a direct result of the 1992 initiative. Within the Community itself, the Co-ordinators Group on the Free Movement of Persons was established in 1988 to oversee the measures necessary to implement the 1992 programme in this area.' The Co-ordinators Group set out its manifesto in the "Palma Document",' which sought to justify the expansion of Community interest into new areas by arguing that the effective functioning of the Community post-1992 demanded that the member States adopt a number of compensatory measures in response to the anticipated loss of national security consequential upon the abolition of internal frontier controls. These should include new measures to tackle international ter- rorism, drug-trafficking and other illegal trade, improved police and judicial co- operation, and—in pursuit of a strengthened external frontier in lieu of internal controls—the development of a common visa and of uniform asylum policies. 7. See Anderson a al, op. cti. supra n.l, at cfaap.7. 8. Idem, chap.4. 9. Reproduced as App.5 to the Report of the House of Lords Select Committee on the European Communities, "1992; Border Controls of People"; Session 1988-89,22nd Report ( H X . Papers 90). http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 234 International and Comparative Law Quarterly [VOL. 47 As well as providing more ambitious terms of reference for existing bodies such as Trevi and the JCWG, the Palma Document and the political climate which sur- rounded it also stimulated the development of new forms of co-operation. These included, most notably, the Mutual Assistance Group 1992 (MAG 92), which ad- dressed the implications of free movement for European customs agencies, and the European Committee to Combat Drugs (CELAD), established in 1990 to develop and co-ordinate preventive and repressive anti-drugs strategies among member States. B. The Third Pillar The Treaty on European Union (TEU) accorded formal recognition to this bur- geoning area of activity by providing a separate title on co-operation in Justice and Home Affairs. This quickly became know as the third pillar, in recognition of the fact that the Treaty structure now encompassed not only the central (or first) pillar of European Community law, but also two flanking pillars dealing with Common Foreign and Security Policy (second pillar) and JHA respectively. The third pillar sought to integrate the various areas of JHA co-operation and the various levels of personnel through an elaborate structure, spanning five lev- els. At the apex is the Justice and Home Affairs Council, which comprises minis- ters from the member States and which acts as the supreme policy-making body. Situated immediately below the JHA Council is COREPER, where permanent representatives from the member States negotiate and agree agendas on behalf of JHA ministers. Below these two familiar Community organs lies the K4 Com- mittee, which is the direct institutional successor to the Co-ordinators Group. The K4 Committee has in turn generated a network of sub-groups which provide the fourth and fifth levels of the hierarchy. Three comitis directeurs (CDs) report to K4. CD I is concerned with immigration and asylum, absorbing the functions of the pre-Maastricht Ad Hoc Group on Immigration. CD II is concerned with police and customs co-operation, replacing Trevi and extending the MAG initiative. CD III is concerned with judicial co-operation of a criminal and civil nature, taking over the work of the JCWG. Finally, each steering group has a number of sub- committees, or working groups, which have emerged gradually since the basic framework was put in place. These working groups presently number around 20, ranging from general flagship concerns, such as terrorism, police co-operation and external frontiers, to more detailed policy areas such as false travel documents and the international enforcement of driving disqualifications.10 These structural arrangements are a peculiar hybrid, reflecting continuing ambivalence about the appropriate degree of international control over internal security matters. They are not "pure intergovernmental co-operation"," since Community institutions are involved at a number of points; but neither are they part of EC law in the same way as the first pillar, since the Community continues to lack direct legislative competence in JHA matters and, more generally, the bal- ance of influence between Community institutions and members States in the pol- icy process continues to favour the latter. 10. For more detailed analysis see Anderson etaL,op.dL supra n.l, at chap.2. 11. D. O'Keefe, -Recasting the Third Pillar" (1995) 32 CMJ.R. 893,902. http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 JANUARY 1998] Current Developments: EC Law 235 In the absence of any direct legislative competence, the Council nevertheless has various types of decision-making authority under the third pillar, namely joint positions, joint actions and conventions.12 While the development of such instru- ments is an important advance, doubts remain over their efficacy. Joint positions and joint actions mirror the position under the second pillar (Foreign and Security Policy), but are less obviously suited to a domain which by its nature requires "legislative action rather than external posture"." Further, they are subject to the requirement of Council unanimity, thereby ensuring that progress can be made only at the pace of the most reluctant member State. Third pillar conventions occupy the firmer legal ground of classical public international law, but they require not only unanimity within the Council but also ratification by all member States in accordance with their domestic constitutional requirements. Such a "double-lock" procedure represents a formidable obstacle. Finally, thepassarelle provision, which allows a transfer of competence from third to first pillar in respect of the majority of JHA matters, offers opportunities for effective EU enactments, but it too is guarded by the double-lock.14 A similarly mixed picture emerges from an examination of the relevant institu- tional competences. The Commission "shall be fully associated with" the work of the third pillar. Yet in contrast to its role under the first pillar, the Commission does not enjoy exclusive power of initiative. Instead, it shares this right with the member States in most areas and, as regards judicial co-operation in criminal mat- ters, customs co-operation and police co-operation, it has no right of initiative whatsoever.15 The European Parliament is consulted on "principal aspects of [JHA] activities", yet, while it may also ask questions of the Council and make recommendations to it,16 the Parliament lacks the significant role in the law-mak- ing process and in the monitoring of executive power which it has gradually acquired under the first pillar. As for the Court of Justice, it has no inherent juris- diction under the third pillar, but it may be given powers under specific third pillar conventions to interpret their provisions and rule on disputes." So far, however, the vesting of jurisdiction in the Court under particular conventions has proved deeply controversial and has led to delays in their ratification and implementation.w While it marks a qualitative shift from the informality of the pre-Maastricht era, the third pillar has tended to attract two kinds of criticism. On the one hand, it has been criticised as ineffectual; as an unduly complex and cumbersome framework 12. Art.KJ(2) TEU. 13. J. Monar. "European Union—Justice and Home Affaire A Balance Sheet and an Agenda for Reform", in G. Edwards and A. Pijpers (Eds), The Politics of European Treaty Reform: The 1996 Intergovernmental Conference and Beyond (1997), pp326-339, at p330. 14. ATLK.9TEU. 15. ArtK.4(2) TEU. 16. ATLK.6TEU. 17. ArtJC3{2) TEU. 18. The most controversial example to date has been the Europol Convention (1995) O J. C316. After its conclusion in July 1995. ratification and implementation were delayed pend- ing an agreement on the role of the ECJ. When the matter was finally resolved in the form of a Protocol to the European Convention in July 1996, it effectively took the form of an agree- ment to differ, with each high contracting party retaining the option to accept the jurisdiction of the ECJ to interpret the Convention by means of a declaration to that effect. http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 236 International and Comparative Law Quarterly [ V O L . 4 7 whose early record suggests that it will be unable to deliver significant results. In particular, it is claimed that progress on the conclusion and ratification of conven- tions—the highest legal instrument under the third pillar—has been slow and uneven; and as regards other less formal decision-making mechanisms, although joint actions have become increasingly popular, joint positions have been almost entirely neglected, and there has been a tendency to fall back instead upon classi- cal non-binding measures of intergovernmental action such as resolutions, state- ments and conclusions." On the other hand, the third pillar has also been criticised as being unduly authoritarian in its policy orientation. On this view, it has demon- strated an excessive concern with repressive instruments of security and order. Arguably, these two criticisms have a common root in the continuing preoccu- pation of member States with the retention of sovereignty in JH A matters. If the third pillar is cumbersome and slow, it is at least in part because the reluctance to move towards taking decisions by majority votes leads to progress within the third pillar being determined by the most cautious member State. Equally, if the third pillar is unduly committed to a narrow security perspective, it is because sover- eignty concerns continue to militate against the full involvement of supranational institutions, like the Parliament and the Court of Justice, no matter how well placed they may be to check and monitor third pillar activities and safeguard indi- vidual freedoms.2" C. "Maastricht II"—The Amsterdam Treaty These criticisms gained momentum during the period leading up to the 1996 Inter- Governmental Conference (IGC), with all the European institutions, including the normally sceptical Council, admitting that there was a case for greater involve- ment of EC institutions to improve effectiveness and accountability.21 These con- cerns were crystallised in the Reflection Group report of December 1995 which served as the agenda for the IGC, and ultimately, in the Treaty of Amsterdam itself. The Treaty, when ratified, will undoubtedly signal a new step towards the inte- gration of JHA matters within the mainstream of European law. However, because of continuing disagreement between member States as to the speed and direction of JHA activity, the legislative strategy chosen to bring about this further integration is marked by complexity and qualification. Under the umbrella of a new chapter on the so-called "area of freedom, security and justice"22 are to be found both a new EC Treaty Title on visas, asylum, immigration and other policies related to free movement of persons23 and a revised and streamlined Title VI of the TEU covering police and customs co-operation and judicial co-operation in crimi- 19. See e.g. Monar, op. at supra n.13: B. Meyring, "Intergovernmentalism and Supra- nationality: Two Stereotypes for a Complex Reality" (1997) E.l_Rev. 221. 20. See e.g. D. Bigo, "The European Internal Security Field", in M. Anderson and M. den Boer (Eds), Policing Across National Boundaries (1994), pp.161-173; M. Spencer, Stales of Injustice: A Guide to Human Rights and Civil Liberties in the European Union (1995). 21. See Monar, op. at. supra n.13. 22. The present note refers only briefly to the relevant provisions of the new Treaty. A more detailed analysis of these provisions in so far as they relate to the free movement of persons will be provided in a subsequent note by Julian Lombay. 23. New Title Ilia, Art73i-q. http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 JANUARY 1998] Current Developments: EC Law 237 nal matters. Accordingly, JHA matters no longer have a single Treaty source, but now straddle the first and third pillars. Superimposed upon this dual structure is the incorporation of the entire Schengen acquis.1* This represents a significant pol- itical victory for the Schengen system and its expanding membership, which now includes all EU member States except the United Kingdom and Ireland, together with Norway and Iceland as associate members. In turn, this new JHA system will allow for flexibility and a wide variety of involvement by member States. The United Kingdom and Ireland are allowed to maintain their existing border controls,23 and need take no part in the adoption by the Council of measures pursuant to the new EC Title on free movement, asylum and immigration.26 Equally, they may opt out of those existing or new parts of the Schengen acquis which fall within the third pillar.27 Denmark is not required to adopt those parts of the Schengen acquis which are determined to be part of the new EC Title, although it has no such exemption in respect of those part of the Schengen acquis which fall within the third pillar.28 There are also flexible arrange- ments for Iceland and Norway, which are to be involved in the deliberations of the JHA Council and be bound by its decisions, but only in matters, under either first or third pillar, which form part of the Schengen acquis." Finally, in addition to these particular provisions, the new third pillar strengthens the facility in the Maastricht Treaty for any number of member States to "establish closer co-oper- ation" on any matter.* Arguably, the new arrangements go some way to increasing both the efficiency and the accountability of JHA co-operation. Matters which were previously located within the third pillar or within Schengen have been transferred to the first pillar, so that majority voting and parliamentary and judicial supervision associ- ated with the latter will now be available. Even within the streamlined third pillar, there is some strengthening of the role of the EC institutions. The consultative role of the Parliament is clarified-" in respect of conventions and two other new policy instruments under the draft Treaty—"framework decisions" made "for the pur- pose of approximation of the laws and regulations of the Member States" and other non-legislative "decisions";32 the power of the Commission to initiate decision-taking is extended to all third pillar matters;" and for the first time gen- eral provision is made for the jurisdiction of the Court (a) to give preliminary rulings on the interpretation of conventions and on the validity and interpretation 24. Protocol Integrating the Schengen Acquis Into the Framework of the European Union. 25. Protocol on the Application of Certain Aspects of Article 7a of the Treaty Estab- lishing the European Community to the United Kingdom and to Ireland. 26. Protocol on the Position of the United Kingdom and Ireland. 27. Protocol, supra n.24, Arts.4-5. 28. Protocol on the Position of Denmark. 29. Protocol, supra n.24, Art.6. 30. The further development of this provision under the Amsterdam Treaty, replacing the existing Art.K.7 with new Arts. 12, IS and 16 TEU, allows member States to make use of Community mechanisms, institutions and procedures in the furtherance of co-operation. 31. N e w A r t K l l T E U . 32. Under the new Treaty, joint actions and joint positions are both abolished, to be replaced by framework decisions, decisions, and common positions; see new Art.K.6 TEU. 33. NewArLK6TEU. http://journals.cambridge.org http://journals.cambridge.orgDownloaded: 20 Dec 2013 IP address: 129.215.19.194 238 International and Comparative Law Quarterly [VOL. 47 of measures implementing them, and also of the new decisions and framework decisions (albeit this jurisdiction does not apply in respect of any member State until it has made a declaration accepting it); (b) to review the legality of framework decisions and decisions in actions brought by a member State or the Commission; and (c) to rule on disputes between member States or between member States and the Commission on the application of the various policy instruments.*4 Whatever progress there has been, however, has been at the cost of uniformity. In the words of one commentator, the new institutional landscape is "frighteningly indeterminate",13 and this may cause problems which outweigh the benefits of par- tial transfer to the first pillar and strengthening of the residual third pillar. The benefits of a co-ordinated approach across member States and the various JHA policy sectors (which was one of the main arguments for the introduction of the third pillar at Maastricht) are endangered by the introduction of variable geometry within the Treaty framework. The membership of JHA Council and its supporting bureaucracy and operations will be constituted differently for different tasks with no guarantee that its various strategic agendas or policy initiatives will be mutually complementary. Even within particular policy fields, the right of indi- vidual member States to refuse the jurisdiction of the Court suggests that tensions and conflict over the terms of co-operation may emerge. Further, increased insti- tutional complexity may make the already intricate system of JHA co-operation even less transparent and less easily understood by the European public, and so less amenable to genuine democratic involvement and accountability. Of course, this is not to deny that some variable geometry was required at Amsterdam if member States ideologically divided over the acceptable limits of further integration were to avail themselves of mechanisms for deepening their commitment to joint action wherever the will existed. Neither should the possi- bility be dismissed that measures currently taken by the integrationist core will set a standard to which all member States will aspire in due course. In the shorter term, however, as regards the likelihood of its increasing co-operative efficiency and democratic responsiveness in JHA matters, "one step forward and two steps backward" would appear to be the verdict on the new Treaty. NEIL WALKER* 34. N e w A r t K . 7 T E U . 35. Professor Dierdre Curtin, in a lecture to the Annual Congress of the Academy on European Law in Trier, 20 June 1997; quoted in Statewatch, VoL7, N o 3 (May-June, 1997), p.18. • Professor of Legal and Constitutional Theory, University of Aberdeen. http://journals.cambridge.org 
work_6qoe2jzbmjcjfkmj4hdi6bpany	----	Distributive Justice and CEO Compensation econstor Make Your Publications Visible. A Service of zbw Leibniz-Informationszentrum Wirtschaft Leibniz Information Centre for Economics Jasso, Guillermina; Meyersson Milgrom, Eva M. Working Paper Distributive justice and CEO compensation IZA Discussion Papers, No. 3236 Provided in Cooperation with: IZA – Institute of Labor Economics Suggested Citation: Jasso, Guillermina; Meyersson Milgrom, Eva M. (2007) : Distributive justice and CEO compensation, IZA Discussion Papers, No. 3236, Institute for the Study of Labor (IZA), Bonn This Version is available at: http://hdl.handle.net/10419/35019 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in EconStor may be saved and copied for your personal and scholarly purposes. You are not to copy documents for public or commercial purposes, to exhibit the documents publicly, to make them publicly available on the internet, or to distribute or otherwise use the documents in public. If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. www.econstor.eu IZA DP No. 3236 Distributive Justice and CEO Compensation Guillermina Jasso Eva M. Meyersson Milgrom D I S C U S S I O N P A P E R S E R I E S Forschungsinstitut zur Zukunft der Arbeit Institute for the Study of Labor December 2007 Distributive Justice and CEO Compensation Guillermina Jasso New York University and IZA Eva M. Meyersson Milgrom Stanford University Discussion Paper No. 3236 December 2007 IZA P.O. Box 7240 53072 Bonn Germany Phone: +49-228-3894-0 Fax: +49-228-3894-180 E-mail: iza@iza.org Any opinions expressed here are those of the author(s) and not those of the institute. Research disseminated by IZA may include views on policy, but the institute itself takes no institutional policy positions. The Institute for the Study of Labor (IZA) in Bonn is a local and virtual international research center and a place of communication between science, politics and business. IZA is an independent nonprofit company supported by Deutsche Post World Net. The center is associated with the University of Bonn and offers a stimulating research environment through its research networks, research support, and visitors and doctoral programs. IZA engages in (i) original and internationally competitive research in all fields of labor economics, (ii) development of policy concepts, and (iii) dissemination of research results and concepts to the interested public. IZA Discussion Papers often represent preliminary work and are circulated to encourage discussion. Citation of such a paper should account for its provisional character. A revised version may be available directly from the author. mailto:iza@iza.org IZA Discussion Paper No. 3236 December 2007 ABSTRACT Distributive Justice and CEO Compensation* This paper develops a framework for studying individuals’ ideas about what constitutes just compensation for chief executive officers (CEOs) and reports estimates of just CEO pay and the principles guiding ideas of justice. The sample consists of students pursuing a Master of Business Administration (MBA) degree in Sweden and the United States. The framework, based on justice theory and making use of Rossi’s factorial survey method, enables assessment of ideas of fairness in CEO compensation, including (1) the just CEO compensation, in the eyes of each observer; (2) the principles of microjustice – observers’ ideas about “who should get what” based on characteristics of CEOs and their firms; and (3) principles of macrojustice – ideas about the just level and dispersion in compensation across all CEOs. Our estimates yield the following main results: First, there is broad agreement on the median just CEO compensation but substantial inter-individual variation in the principles of microjustice and the other principles of macrojustice. Second, there is remarkable similarity in the distributions of the principles of microjustice and macrojustice across the MBA groups. Other important results include a pervasive gender attentiveness among MBA students and tolerance for large variability in CEO pay. JEL Classification: D31, D6, D8, G30, I3, J16, J31, J33, M14, M52 Keywords: justice theory, fairness, CEO compensation, factorial survey method, MBA students, gender, inequality, Gini coefficient, Atkinson measure, Theil’s inequality measures Corresponding author: Guillermina Jasso Department of Sociology New York University 295 Lafayette Street, 4th Floor New York, NY 10012-9605 USA E-mail: gj1@nyu.edu * Authors listed in alphabetical order. Earlier versions of portions of this paper were presented at the Harvard-MIT Economic Sociology Workshop, Sloan School of Management, 2001; the Sociology Department Colloquium, Stanford University, 2003; the Management Colloquium, City University of Hong Kong, 2004; Symposium on Human Capital and Labour Markets, Zhejiang University, Hangzhou, China, 2004; the annual meeting of the Society for the Advancement of Socio-Economics, Washington, DC, 2004; the annual meeting of the American Sociological Association, San Francisco, California, 2004; the Economics Department at Stockholm University, 2005; and the biennial meeting of the International Society for Justice Research, Berlin, Germany, 2006. We are grateful to participants at those meetings and to colleagues at IZA for many valuable comments and suggestions. We also gratefully acknowledge the intellectual and financial support of the Bechtel Foundation, New York University, the Sloan School of Management at MIT, the Stockholm Institute of Business, and Stanford University. This paper is forthcoming in Acta Sociologica. mailto:gj1@nyu.edu 1 1. INTRODUCTION Recent increases in inequality in many countries of the world appear due to the increasing concentration of wealth at the top; and the increasing concentration of wealth at the top is in turn widely attributed to a new phenomenon in economic life, namely, very high-earning salaried workers, in particular, chief executive officers (Atkinson and Piketty 2006; Piketty and Saez 2006; Roine and Waldenström 2006). Wealth and inequality awaken justice concerns. Substantial gaps between what people think is just and what they see around them generate judgments of injustice, setting in motion a train of negative consequences for individual and society (Bok 1993). Of course, ideas of justice may differ across individuals and across societies and their subgroups. Elites constitute one potentially important segment of the population, not only because of their decisionmaking activities but also because they may share a global common culture. Students pursuing a Master of Business Administration (MBA) degree are a special group of interest. The MBA students of today are the future CEOs, board members, entrepreneurs, and investors. Thus, their ideas about what is fair compensation, their views of the relevant factors in setting CEO compensation, and their tolerance or intolerance of inequality provide an important glimpse into the societal conversation on matters of compensation and inequality in the years to come. Moreover, to the extent that students come from all over the world, variability within university may reflect the diversity of their origins; across universities and countries, commonality may reflect the emerging global common culture while variability may reflect persistent distinctive ideas of justice and tolerance for inequality (Bok 1993; Kelley and Evans 1993; Master 2002; Söderström et al. 2003; Svallfors 1997; Wegener 1991). In this paper we focus on CEO compensation as viewed by MBA students at two universities, one in Sweden, the other in the United States, asking three main questions: First, what are MBA students’ ideas about fairness in CEO compensation – including not only ideas of the just amounts of pay but also ideas about the just returns to personal and firm characteristics (microjustice) and about the just level and dispersion in CEO pay (macrojustice)? Second, do The words “justice” and “fairness” and their cognates are used interchangeably.1 2 MBA students within a university have a common view about what constitutes just CEO pay, just returns, and just level and dispersion? Third, are these ideas of justice similar across the two universities?1 To address these questions, we develop a framework which is based on justice theory and makes use of Rossi’s factorial survey method, building on early studies of the justice of earnings (Jasso and Rossi 1977) and of elites (Berk and Rossi 1977; Jasso 1988). The framework links observers’ ideas of justice, principles of microjustice, and principles of macrojustice, enabling estimation of these observer-specific quantities and assessment of the mix of agreements and disagreements across respondents. The paper is organized as follows: In Section 2 we describe the framework and its theoretical and empirical background. The method used in the present study is developed in Section 3. Section 4 reports the results. A short discussion concludes the paper. 2. JUSTICE JUDGMENTS OF CEO COMPENSATION: THEORETICAL AND EMPIRICAL BACKGROUND The work reported in this paper builds on and contributes to two research traditions, the first focused on large questions of increasing income inequality and attendant dynamics and the second on fairness concerns. Both converge on executive compensation and elites. The fairness literature suggests that two distinct kinds of principles operate to produce ideas of the just reward: (1) principles of microjustice – ideas about “who should get what” -- and (2) principles of macrojustice – ideas about what the overall distribution should look like (Arts et al. 1991; Berger et al. 1972; Brickman et al. 1981; Jasso 1983). That literature also suggests that ideas of justice are “in the eyes of the beholder” (Walster et al. 1976:4) and thus shaped by the observer’s own characteristics, social location, and societal characteristics (Kelley and Evans 1993; Svallfors 1997; Verwiebe and Wegener 2000). Both literatures highlight the income domain Succinct summary of the larger inequality framework is found in Piketty and Saez2 (2006) and of the justice framework in Jasso and Wegener (1997) and Jasso (1999, 2007). 3 (1) (Arts et al. 1991; Atkinson and Piketty 2006; Bok 1993; Jasso and Rossi 1977; Kelley and Evans 1993; Piketty and Saez 2006).2 2.1. Justice Justice theory identifies four main elements in justice processes. First, individuals and societies form ideas of justice; in the distributive-retributive domain these are ideas about what constitutes the just reward for specified rewardees, who can be self or other. Second, these ideas of justice may be used to help shape actual situations; for example, ideas of the just reward may play a part in salary decisions. Third, individuals judge the justice or injustice of actual situations, generating the justice evaluation; for example, they may judge that one person is overpaid and another underpaid and/or that the pay structure in a firm has unjustly too much inequality. Fourth, the justice evaluations become important determinants of further behaviors, such as lobbying for policies or candidates. This paper is chiefly concerned with ideas of the just reward for CEOs. However, the method used to estimate the just reward is an indirect method that utilizes the justice evaluation function. Accordingly, we provide a brief background not only on the just reward but also on the justice evaluation and their associated functions. Just Reward Function and the Principles of Microjustice. The just reward is the observer’s idea of the just reward for a particular rewardee. It can be expressed as a function of characteristics of the rewardee and the rewardee’s situation. This representation of the just reward function is owed to Berger, Zelditch, Anderson, and Cohen (1972), as shown in Jasso (1983), and is thus called the BZAC function. Of course, observers may disagree as to which worker/situational characteristics are relevant for just earnings or about the worth of such characteristics. Accordingly, we write a general just reward function: where C denotes the just reward and X denotes a vector of rewardee and situational 4 (2) characteristics. To illustrate, in the earnings realm, C represents just earnings, and the X vector contains both worker characteristics and situational characteristics, such as geographic region and industrial sector; some of the characteristics in the X vector may be salient to some observers and ignored by others. The parameters of the BZAC just reward function (e.g., intercept and slope coefficients) represent just rates of return – for example, just rate of return to schooling and just rate of return to experience, as well as a just gender multiplier, and so on. Following Brickman et al. (1981), these quantities, which guide determination of the just reward in the observer’s head, are collectively called the principles of microjustice. Just Reward Distribution and the Principles of Macrojustice. When an observer forms ideas about the just reward for a set of rewardees, these ideas are also guided by distributional considerations, and these considerations are visible in the distribution formed by the set of just rewards. Following Brickman et al. (1981), parameters of the observer-specific just reward distribution – such as its mean and inequality – are called the principles of macrojustice. Justice Evaluation Function. The justice evaluation is the observer’s assessment that a rewardee (self or other) is fairly or unfairly rewarded and, if unfairly rewarded, whether underrewarded or overrewarded, and to what degree. The justice evaluation, denoted J, arises from the comparison between an actual reward and a just reward. It is usually specified as the logarithm of the ratio of the actual reward, denoted A, to the just reward, denoted, as before, C (Jasso 1978, 1999, 2006): where denotes the signature constant. The sign of is called the framing coefficient, because it embodies the observer’s framing of the reward as a good or as a bad (negative for a bad, positive for a good); and the absolute value of is called the expressiveness coefficient, because it transforms the observer’s experience of justice into the expression thereof. The log-ratio form For fuller discussion of properties of the justice evaluation function, see Jasso (2007).3 In the behavioral model in (3), the justice evaluation function appears in its theoretical4 form, i.e., without an error term. Below it will be transformed into an empirically estimable form, including an error term. 5 (3) of the justice evaluation function has many appealing properties, and has been shown to be the only functional form which simultaneously satisfies two important conditions, scale invariance and additivity (Jasso 1990).3 Note that the justice evaluation serves to link the twin pillars of the justice literature: ideas of justice and reactions to injustice. Ideas of justice, as seen in equation (2), are one of the two arguments of the justice evaluation function; and reactions to injustice are the consequences of the justice evaluation. Thus, the justice evaluation connects the two foundational themes in the study of justice. Two-Equation Model. The method we use for estimating the just rewards is based on a design in which each observer judges the justice or injustice of the actual reward associated with each rewardee in a set of rewardees (Jasso and Rossi 1977; Jasso 1990, 2007). Thus, the underlying model is a two-equation model consisting of the justice evaluation function and the just reward function (here written for a single observer): where the justice evaluation, actual reward, just reward, and reward-relevant characteristics are denoted by lower-case letters, r indexes the rewardee, ð denotes the parameters of the just reward function, and is a classical error distributed independently with zero mean and constant variance (within the respondent-specific equation).4 As will be described in section 3.2, estimation of the observer-specific justice evaluation equation (the first equation in expression (3)), in which the just rewards are unobserved, yields an estimate of the signature constant , which is then used to calculate the true observer- 6 specific/rewardee-specific just reward . These estimated just rewards become the dependent variable in the observer-specific just reward equation (the second equation in expression (3)), which in turn yields estimates of the observer-specific principles of microjustice. Concomitantly, calculation of the mean and inequality measures in the observer-specific just reward distribution yields estimates of the observer-specific principles of macrojustice. 2.2. Justice of CEO Compensation People make justice judgments about a wide variety of rewardees, including self and others, the latter both known and unknown to them. It is a commonplace – and much expressed in private conversations, letters to the editor of newspapers and periodicals, radio talk shows, and, now, web logs – that this or that athlete is overpaid and this or that actor is underpaid, etc. CEOs are among the rewardees the justice of whose rewards is much evaluated. Several themes are discernible in public discussion of CEO compensation. First, the levels of CEO compensation are perceived as high; for example, the median CEO compensation in 2001 was $7.1 million, and the distribution is highly positively skewed (Söderström et al. 2003). Second, compensation differentials – say, between a nurse and a CEO – appear to many to be disproportionate. Third, CEO compensation increased dramatically in the last two decades of the twentieth century – for example, in the United States averaging 9% per year in the period 1980–1998 and outpacing not only compensation increases for rank and file workers but also the pay growth of 3.7% per year among the wealthiest Americans (Hall and Liebman 1998; Piketty and Saez 2006). Fourth, CEOs appear to have lost the trust of the general population; the prevailing image is that of a CEO negotiating large compensation packages while fraudulently and criminally misrepresenting corporate performance for personal gain (Meyer 2003). Fifth, the system of corporate governance, in particular the set of checks and balances, has become a focus of criticism. Of course, not all justice evaluations conclude with a verdict of overreward. For example, Crystal’s (2002) analysis of executive compensation in companies with 2001 revenue of $8 billion or more concluded that three of the CEOs are underpaid – including Warren Buffet Because the target CEOs in our study are newly hired as a CEO, we do not explicitly5 examine performance pay sensitivity, as is typical in the research literature (e.g., Murphy 1999). 7 of Berkshire Hathaway, whose business acumen is matched by his sense of ethics and fair play. The scholarly literature on the justice of CEO compensation is anchored by two pioneering data collection efforts – the International Social Survey Programme (ISSP) and the International Justice Research Project (ISJP) – which have obtained information concerning what respondents regard as the just pay for “chairman of a large national corporation” and “chairman of a large company,” respectively (Jasso 2007). However, these data do not lend themselves to estimating just pay for a broader range of CEOs – such as CEOs of small firms or multinational corporations. Moreover, they do not permit nuanced judgments that take into account personal characteristics of the CEO such as age or gender or other firm characteristics such as industry – that is, they do not permit estimation of just reward functions and the principles of microjustice. Accordingly, we use the factorial-survey justice design developed by Jasso and Rossi (1977) in order to achieve greater specificity. We specify a just compensation function that parallels the actual compensation functions discussed in the literature. The just compensation function includes characteristics of CEOs and of their firms which figure in both the actual compensation literature and in justice discussions, such characteristics as the age, gender, schooling, and experience of the CEO and the size and location of the firm (Baker and Hall 2004; Boxman et al. 1991; Conyon and Murphy 2000; Meyersson 1994; Murphy 1999; O’Reilly and O’Neill 2003; Rosen 1992). In the first application of the framework developed in this paper, we focus on CEOs newly hired as a CEO.5 2.3. MBA Students and the Justice of CEO Compensation MBA students occupy a crossroads in the justice and CEO landscape. Like their fellows from high school and in common with the broader population, they judge the justice of CEO compensation. But unlike the broader population, they may have aspirations to become a CEO or take on other positions within the corporate world. And they have taken a significant step in the direction of casting their lot with business. Discerning their ideas of justice about CEO 8 compensation provides a glimpse into the mindset of future entrepreneurs, CEOs, and board members. Note that to the extent that MBA students are drawn from around the world, they represent an international elite and thus their views may reflect both their national origins and their common global culture. 3. METHOD: FACTORIAL SURVEY ANALYSIS AND JUSTICE JUDGMENTS OF CEO COMPENSATION To learn what MBA students regard as just compensation for CEOs and to estimate the justice principles guiding their judgments, we use Rossi’s factorial survey method (Rossi 1979; Rossi and Anderson 1982; Rossi and Berk 1985; Jasso 2006), which has proved especially useful in studies of distributive justice, making it possible to obtain justice judgments about large sets of richly described fictitious rewardees (Berk and Rossi 1977; Jasso and Rossi 1977; Jasso 2007). The general factorial survey method provides several avenues for obtaining respondents’ ideas of the just reward, including a direct method and (two versions of) an indirect method (Jasso 2007). The research reported here used the one-reward-per-rewardee version of the indirect method, in which a hypothetical actual reward is randomly attached to each rewardee, and respondents assess the fairness or unfairness of the actual rewards. The indirect method yields estimates of the just reward that are uncontaminated by socialization, rhetorical, political-correctness, or other disclosure mechanisms. Briefly, we presented to respondents a set of 40 hypothetical CEOs, described in terms of own and firm characteristics, including a random compensation amount, and we asked the respondents to rate the justice or relative injustice of the hypothetical earnings. We used the obtained justice evaluations to estimate for each respondent the amount he or she thinks just for each of the hypothetical CEOs (the method involves a two-step procedure, described below). Next we used the estimated just compensation amounts to estimate for each respondent the principles of microjustice and macrojustice guiding his/her judgments. 9 3.1. Data Collection in the Factorial Survey Analysis of CEO Compensation The design of the data collection has three main ingredients: a sample of respondents, a population of hypothetical CEOs (the “vignettes”) from which random samples are drawn and randomly assigned to respondents, and a rating task. 3.1.1. Vignette Samples Vignette Characteristics. The vignettes include CEO and firm characteristics, plus a hypothetical amount of total direct compensation proposed for the CEO’s first year as CEO of this firm. Total direct compensation consists of base salary, bonus, restricted stock and long- term incentives -- everything except stock option grants. MBA students would be familiar with these components of executive compensation. Levels/values of vignette characteristics. Table 1 presents the vignette characteristics, together with their levels and values. As shown, age varies from 20 years to 70 years, schooling from completion of sixth grade to a doctoral degree, CEO compensation from fifty thousand to sixty million dollars. Of course, the real world is sufficiently diverse that most of the values in the vignettes have real-world counterparts. For example, in 2004, excluding those CEOs who at their request received total compensation of one dollar, CEO compensation in the top 500 U.S. companies ranged from $ 82,000 to $ 230,554,000 (www.forbes.com). – Table 1 about here – Firm headquarters is specified as being in one of three locations -- the United States, Europe, and Asia. The vignettes describe the CEO’s firm as being in one of four major industries – manufacturing, finance and insurance, information, and wholesale trade. Population of vignettes and drawing vignette samples. To obtain the random samples of vignettes to present to respondents, we followed these procedures: First, we fully crossed all characteristics except sex. The number of possible vignettes (Cartesian product) is: 11 × 15 × 16 × 3 × 4 × 27 × 27 = 23,094,720. Second, we eliminated logically impossible combinations, following the specifications given in the note to Table 1; for example, age and experience as a CEO could not yield a CEO who became a CEO before age 16. Third, we drew http://www.forbes.com). 10 two random samples, each of size 20 (called Decks 1 and 2). Fourth, each of the two random samples was used to generate two mirror-image samples with respect to sex, one describing men, the other women (e.g., Deck 1 gives rise to two decks, the all-female Deck 1a and the all-male Deck 1b). Finally, two superdecks of size 40 were constructed by taking the male version of one sample and the female version of the other sample, and vice-versa (e.g., Deck 1a and Deck 2b form one superdeck). Thus, each respondent received a pack with 40 vignettes. Though the 20 male and 20 female CEOs in each respondent’s pack are not mirror images of each other, across all respondents the male and female CEOs are indeed mirror images of each other. 3.1.2. Rating Task The respondent was asked to rate the justice or injustice of the hypothetical salary randomly attached to each CEO. The rating task used a number-matching technique developed by S. S. Stevens (1975), which gives respondents maximal freedom to map the subjective justice continuum onto numbers. The number zero is used to represent perfect justice, negative numbers to represent unjust underpayment, and positive numbers to represent unjust overpayment. The usual protocol for factorial survey studies was followed (Jasso 2006, 2007). The instructions were read aloud, examples provided, questions answered. The instructions, besides describing the justice evaluation rating task, highlight the randomness of the attached hypothetical actual earnings and, to activate the full real-number line, make explicit mention of fractions and decimals; as well, to preserve independence of the ratings, the instructions say that respondents may change any of their ratings. Facsimiles of the instructions and of a vignette appear in Jasso (2006:412, 415). The rating provided by the respondent for each rewardee is the justice evaluation described above (equation (2)) and produced by a comparison of the actual reward included in the vignette with the respondent’s own idea of the just reward for the particular rewardee. 3.1.3. Respondent Samples We selected two samples of MBA students, one from a Swedish institution, the other 11 (4) (5) (6) from a U.S. institution. The two institutions have similar curriculums, and the courses have similar content. Both institutions have a diverse student body drawing both from different domestic ethnicities and different origin countries. The proportion women is low to moderate in the two institutions, approximately 14% in the Swedish institution and 26% in the U.S. institution. In both institutions, we conducted the survey in the largest core course. 3.2. Estimating the Just CEO Compensation As noted, we use the one-reward-per-rewardee version of the indirect method to estimate the amount of compensation that each respondent regards as just for each fictitious CEO. The first step is to estimate the justice evaluation equation in the two-equation model (expression (3)), written, as before, for a single respondent: To begin, we transform the theoretical justice evaluation equation in (4), which has no error and in which the true just reward is unobserved, into an estimable empirical form, re-writing it as a simple regression equation with a stochastic term , where obeys the classical assumptions. Because the respondent’s ideas of the just reward for each fictitious rewardee are unobserved, they are absorbed into the regression intercept , which can be shown, by properties of linear regression, to amalgamate all the unobserved true just rewards: This means that great care must be exercised in the estimation of (5) to guard against omitted- variables bias, which would arise if there is a correlation between the actual rewards and the unobserved just rewards. The steps taken to guard against such error are, first, ensure that the correlation of the actual reward and the reward-relevant characteristics (the CEO and firm characteristics) is zero in the vignette population, and, second, make clear to the respondents that the actual reward is random, stating this explicitly (“Each CEO has been randomly assigned a hypothetical total compensation for the first year.”). 12 (7) Accordingly, estimation, for each respondent separately, of the empirical justice evaluation function in (5) yields an estimate of the signature constant , from which the framing and expressiveness coefficients are immediately obtained. Because in the factorial survey the descriptions of the rewardees are designed by the investigator and the actual reward is uncorrelated with the reward-relevant characteristics, the regressor is fixed in the statistical sense and uncorrelated with the error, and, hence, the estimate of the signature constant has the desirable properties of unbiasedness and consistency. To estimate the true just reward, we re-arrange the terms in the justice evaluation equation in expression (4), obtaining the formula for estimating the true just reward: where denotes the exponential function. Accordingly, when the justice evaluation equation is combined with the factorial survey design developed by Jasso and Rossi (1977), the factorial survey justice design provides the actual reward, the justice evaluation is obtained from the respondent, and the signature constant is estimated via statistical estimation of the equation (as shown above), leaving only one unknown – the just reward – which is easily solved for. The just rewards obtained by this method, being nonlinear transformations of an unbiased and consistent estimate -- of the signature constant -- lose unbiasedness but, by Slutsky's theorem, remain consistent. Thus, estimates obtained by the one-reward-per-rewardee version of the indirect method have the desirable properties that they are free of disclosure bias and that they are consistent but the undesirable property that they are biased. To mitigate bias and achieve the benefits of consistency, sample size is important. Though more research is needed to gauge optimal sample sizes, an initial rule is that vignettes number at least forty. 3.3. Estimating the Principles of Microjustice and Macrojustice: Just Reward Functions and Just Reward Distributions To estimate the respondent-specific just reward functions, we regress, separately for each respondent, the natural logarithm of just CEO compensation (estimated via formula (7)) on the CEO and firm characteristics. The obtained estimates, or transformations thereof, constitute The three models are labeled as in Johnston and DiNardo (1997:129-130).6 13 estimates of the respondent-specific principles of microjustice. To illustrate, the coefficient of schooling provides an estimate of the just earnings return to investment in an additional year of schooling. Age and experience are each represented by a quadratic form (i.e., by two regressors, such as age and age-squared), so that the just return to age or to experience is estimated by the two coefficients jointly. The exponential of the coefficient of the binary sex variable, measures the gender multiplier; women are coded “1" and thus the multiplier is applied to the earnings of females, so that subtracting one yields the tax (if negative) or bonus (if positive) on women's earnings, relative to the earnings of comparable men, in percentage points. The gender multiplier has a natural interpretation as the ratio of female to male earnings; a gender multiplier of .8 would indicate the view that the just earnings for a woman is 80% of the just earnings for a comparable man. To test homogeneity of the respondent-specific just reward equations, we estimate three models and perform three tests contrasting them. Model I specifies a pooled equation in which6 all respondents have the same intercept and the same slopes. Model II retains common slopes but allows each respondent to have a unique intercept. Model III is the set of respondent-specific equations in which each respondent has both a unique intercept and unique slopes. Test 1 contrasts Model I with Model II. Test 2 contrasts Model II with Model III. Test 3 contrasts Model I with Model III. The observer-specific just rewards form the just reward distribution. To estimate the principles of macrojustice, we calculate, for each respondent-specific distribution, the mean, median, and four measures of inequality. 4. RESULTS 4.1. Preliminaries Of the 47 respondents in the Swedish study, 45 provided numerical nonconstant ratings, Factorial survey justice studies since the earliest days have found evidence of7 “contrarian” individuals, e.g., persons who regard earnings as a bad or time in prison as a good – exemplifying the old adage that one person’s meat is another’s poison. Deleting contrarians removes one source of variability, producing more conservative homogeneity tests. 14 and of these, 43 provided information on gender (27 males and 16 females). Twenty-six of the 27 men and 13 of the 16 women rated all 40 vignettes; only 6 vignettes were left unrated, and the fewest number rated was 38. Estimation of the justice evaluation equations indicated that one male and one female each regarded earnings as a bad. These two respondents were dropped,7 leaving a usable Swedish sample of 26 males and 15 females. In the U.S. sample, all 36 respondents provided numerical nonconstant ratings as well as gender information (30 males and 6 females). However, there are too few female respondents to constitute a female sample. Moreover, one of the men rated fewer than 30 vignettes and was eliminated, leaving a usable U.S. male sample of size 29. Twenty-four of the 29 men rated all 40 vignettes; one each rated 31, 34, and 35 vignettes, and 2 rated 39 vignettes. Accordingly, the data to be analyzed include three subsamples and enable a contrast between male MBA students in Sweden and in the United States and a second contrast between male and female MBA students in Sweden. 4.2. Estimates of Just CEO Compensation Using the procedure described above, we estimated for each respondent the amount of compensation he/she thought just for each of the CEOs. The estimates are arrayed in a just reward matrix. To illustrate, Table 2 reports a portion of the just earnings matrix, showing the just earnings amounts for a quarter of the vignettes, namely ten each from two mirror-image decks. Our focus in this paper is on the rows of the matrix – namely, the respondent-specific just reward distributions to which we return in section 4.4 below. Of course, the rewardee-specific just reward distributions in the columns can also be usefully investigated – Table 2 about here -- 4.3. Principles of Microjustice We begin by estimating the respondent-specific just reward equations. For each 15 respondent, the forty logged just earnings amounts are regressed on the CEO and firm characteristics. Next, we carry out the homogeneity tests described in section 3.3, separately within each of the three samples. In all three samples, all three tests reject homogeneity at very high levels of statistical significance (beyond the .0001 level). We conclude that in forming their ideas of just compensation respondents differ in the weights they attach to CEO and firm characteristics. As a brief illustration, consider the results for the Swedish male sample (Table 3); corresponding tables for the other two samples are available from the authors. The value of R- squared in the Model I equation, which constrains all respondents to have the same intercept and the same slopes, is a meager .113. Model II, which allows respondents to have unique intercepts, attains a value of R-squared of .346, or triple that in Model I. Model III, which permits respondents to have their own intercepts and slopes, reaches an R-squared of .591, which almost doubles that in Model II and is over 5 times that in Model I. – Table 3 about here – Thus, the homogeneity tests yield the first important result: MBA students, even within country and within gender, do not agree with each other on the just bases for CEO compensation. As will be discussed, this may reflect the students’ international origins and/or their independence of mind. To assess the extent of agreements and disagreements, we examine the respondent- specific equation estimates. For each respondent, we have estimates of twelve coefficients, one intercept, and one value of R-squared. The thirteen parameter estimates satisfy the conditions for unbiasedness. We summarize the results in two ways. First, we present in panel A of Table 4 summary characteristics of all the coefficients plus R-squared. Second, we present graphs of the sample-specific quantile functions associated with several of the measures. The quantile function plots the value of a variable on its cumulative relative frequency, so that it is visually evident what proportion of respondents have values smaller than the plotted values. These plots permit immediate assessment of interrespondent disagreements and of similarity or dissimilarity Such a common Weltanschauung should not be too surprising, given that MBA8 students the world over have a similar curriculum. Moreover, asked about their major sources of business information, MBA students at both institutions mentioned the same three periodicals: The Wall Street Journal, The Financial Times, and The Economist. Further, both institutions draw students from all over the world. In the graph, the upper extreme values are interpolated for the Swedish women and the9 U.S. men. 16 of the distributions across the three samples. – Table 4 about here -- Before discussing the estimates of the respondent-specific just CEO compensation equations, we inspect their values of R-squared (panel A of Table 4 and Figure 1). As shown, the values of R-squared range from .142 to .726. The means and medians in all three samples hover between .44 and .49. These are substantial magnitudes, indicating that, although the respondents may disagree with each other on the importance associated with particular CEO and firm characteristics, they have coherent and orderly views concerning the effects of CEO and firm characteristics on just CEO compensation. As well, the values of R-squared indicate that the particular set of CEO and firm characteristics included in the vignettes are indeed relevant to the just pay for CEOs, in the respondents’ eyes. – Figure 1 about here – Figure 1 tells an additional story. Notice how close together the three sample-specific distributions lie. Although there is considerable variability within sample, the three samples are very similar. These results suggest a common Weltanschauung among MBA students in both the Swedish and the U.S. institutions.8 The effect of CEO gender on just compensation is represented by the gender multiplier (Table 4, panel B, and Figure 2, panel A). As shown, the medians are in the range .84-.94, indicating that the median respondent regards as just an amount for women that is 84% to 94% that of otherwise identical male CEOs. Again, the three distributions are very similar to each other, parting company only at the extremes, especially the upper extreme.9 – Figure 2 about here – The quintessential example of entrepreneurial college dropouts is Bill Gates, founder10 of Microsoft. Another well-known example is Michael Dell, founder of Dell Computer (Dell 2003). The plots omit a total of three values (from the graphs but not from the underlying11 distributions) – one each at the bottom and top in the Swedish male sample, and one at the top in the Swedish female sample. 17 The respondent-specific estimates for the just rate of return to schooling (Table 4, panels A and B, Figure 2, panel B) indicate not only the large individual differences already expected but also somewhat less similarity across the three samples, especially in the bottom half of the distributions. The median just rate of return to schooling is substantially higher among the Swedish men (9.5%) than among the Swedish women and U.S. men (5.5% and 5.3%, respectively). Swedish women also have the bottom third of the distribution with lower just returns than U.S. men. These results echo currents in the compensation literature, including the glory stories of entrepreneurial college dropouts, the view of schooling as a credentialing device, and the notion that schooling may be consumption as well as investment.10 The parabolas representing operation of experience as a CEO are concave downwards in a majority of each sample (65%, 73%, and 59%, respectively, among Swedish men, Swedish women, and U.S. men). For these subsets, we show the quantile function of the sample-specific distributions of the years of experience at which just compensation peaks (Figure 2, panel C). 11 Thus, these respondents judge as just a starting compensation for newly-hired CEOs that notices previous experience as a CEO but that peaks at a median experience of 6-9 years. The firm location variables give rise to six possible orderings. The two orderings in which the United States is thought to provide larger just compensation characterize a plurality of respondents in all three samples, although the two orderings in which Asia has the larger coefficient is a strong contender among the U.S. male sample. Among the two Swedish samples, the two orderings with Asia at the top characterize the fewest number of respondents. These results suggest that in forming ideas of just compensation for CEOs, our respondents take into account the location of the firm headquarters but they disagree concerning which locations make As suggested by inspection of the graphs and tabulated figures, there is one omitted12 value at the bottom of the range (among the U.S. men) and several at the top (one among Swedish men, three among Swedish women, and four among U.S. men). 18 high earnings more appropriate. The firm industry variables give rise to 24 possible orderings. All but one of the 24 possible orderings were used by at least one respondent. In each sample, the largest number of respondents associated with a single ordering are 4, 5, and 3 among Swedish men, Swedish women, and U.S. men, respectively. The estimates for the effect of firm capitalization on just CEO compensation (Table 4, panel A, and Figure 2, panel D) show the now familiar pattern associated with the effects of quantitative characteristics – variability across individuals, similarity across samples. The12 medians lie in the range .14-.26. Thus, on average, respondents regard as just a CEO compensation that increases by approximately .20% for a 1% increase in firm capitalization. In the vocabulary of economics, the estimated elasticity of CEO just compensation with respect to firm capitalization is in the range of .14 to .26 – a range consistent with Rosen’s (1992) estimated range of .20 to .30. Interestingly, the estimates in the two men’s samples are even more similar to Rosen’s estimates – a mean and median of the estimated elasticities of .23-.24 and .18-.26, respectively. 4.4. Principles of Macrojustice Table 4 reports in panel C summary characteristics for the median and for the four inequality measures calculated on the respondent-specific just reward distributions. Graphs of the sample-specific quantile functions associated with the median and with the inequality measures are presented in Figures 3 and 4. – Figures 3 and 4 about here – The plots for the medians of the respondent-specific just reward distributions (Figure 3) indicate interrespondent similarity over most of the region. Moreover, the three plots are very similar, indicating similarity across the three samples. This pattern differs from the pattern 19 observed in the principles of microjustice of within-sample variability combined with cross- sample similarity; here we observe similarity both within and across samples. The graphs of the inequality measures (Table 4), however, display the same pattern as the principles of microjustice – great variability across respondents, great similarity across samples. Substantively, respondents regard as fair very high levels of inequality in CEO compensation. Most of the minimums are quite high – for example, the smallest values of the Gini index among Swedish men and women are .46 and .50, respectively, values higher than in the broader U.S. income distribution. The means and medians are in the range of .76-.78. At the upper extremes of the distributions, the magnitudes approach unity, the theoretical upper limit of the Gini index. In the MLD, however, there is some dissimilarity across the three samples, albeit confined to the top half of the distribution. Swedish women appear tolerant of greater inequality (higher MLD). In sum, the levels of inequality in CEO compensation that respondents regard as just are quite high. 5. SUMMARY AND DISCUSSION In this paper we developed a framework for studying individuals’ ideas about what constitutes just compensation for chief executive officers (CEOs), and we reported the results of the first application of the framework, assessing MBA students’ ideas about just CEO pay, focusing on three samples: Swedish men, Swedish women, and U.S. men. Our main results are: First, we obtained estimates of each respondent’s ideas of the just pay for each of 40 fictitious CEOs, of each respondent’s just reward equation and the principles of microjustice, and of each respondent’s just reward distribution and the principles of macrojustice. These results make it possible to construct characterizations of respondents and CEOs, for example, that one respondent regards as just a return to schooling of 10 percent and another a return to schooling of 20 percent, that one respondent regards as just a Gini of .5 and another a Gini of .982, and so on. Second, within each of the three samples, there is substantial 20 inter-individual variation in the principles of microjustice; that is, in forming ideas of just CEO pay, people differ in the weights they place on CEO and firm characteristics. Third, there is remarkable similarity in the distributions of the principles of microjustice across the three samples. Fourth, within each sample, there is broad agreement on the median just CEO compensation but substantial inter-individual variation in the inequality subset of the principles of macrojustice; that is, people differ in their tolerance for inequality. Fifth, there is remarkable similarity in the distributions of the principles of macrojustice across the three samples. The estimates of the principles of justice provide an array of useful and suggestive results. For example, the distributions of observer-specific elasticity of just CEO compensation with respect to firm capitalization have medians in the range of .14-.26 – similar to the range of .20-.35 found by Rosen (1992). Further, the median respondents regard as just an amount of pay for women CEOs that is 84% to 94% that of otherwise identical male CEOs. With respect to variability in just CEO compensation, estimates of the principles of macrojustice indicate that the MBA students regard as just rather high levels of inequality in CEO compensation (e.g., median Gini index values of .76-.78), possibly dulling the senses to economic inequality in the larger population, where a Gini of .50 would be considered too high by most observers. The findings of substantial inter-respondent differences on the principles of justice and of remarkable similarity in the distributions of principles of justice across the three samples jointly provide evidence for the existence of a global business culture, but one which, consistent with ideals of risk, innovation, and individualism, and possibly diverse origins, accommodates wide individual differences. Of course, the similarity we found between MBA students in Sweden and the United States may not extend to the general populations of the two countries. It is important to monitor views of CEO pay both inside and outside the business world, for a global business culture at odds with the general population would be a source of political tension both within and between national cultures. The findings on the effects of CEO gender on ideas of just pay suggest substantial gender attentiveness on the part of MBA students. The factorial survey method makes it possible to 21 retrieve ideas of fairness that respondents might otherwise be reluctant to express. Whether gender attentiveness among MBA students persists, increases, or diminishes is a question for future research. Recent studies carried out in college samples in the United States (e.g., Jasso and Webster 1999) indicate that gender attentiveness is shifting. While U.S. college students increasingly assign equal just pay to otherwise identical male and female workers, they are not completely blind to gender, for the mechanisms by which they generate ideas of just earnings remain gender-attentive (for example, noticing gender in assigning just base pay or just returns to schooling). It will be important to monitor such shifts among MBA students. The factorial survey design is uniquely suited for this purpose. There are several important directions for future research. We highlight three. Methodologically, an important task is to systematically contrast direct and indirect methods for measuring just pay, in order to understand the precise nature of the differences between them, to calibrate results across studies, and to help in research design. A second methodological task, building on Jasso (2006:4003-4007), is to examine sensitivity of indirect methods to alternate specifications of the justice evaluation function, assessing, for example, families of functions that share major properties with the logarithmic-ratio function. Substantively, an important question for future research is to document ideas of just CEO pay among the general population as well as among other special target samples, such as workers, union members, regulators, legislators, business school faculty, faculty and students in other disciplines, and CEOs themselves, doing so not only in Sweden and the United States but also in additional countries around the world and repeating such studies periodically. Whether the world as a whole is becoming more similar in its views, whether, alternatively, pockets of the world’s population are becoming internally more similar but polarized vis-a-vis each other – these are vital questions for social, economic, and political development and for the well-being of the world’s people. 22 REFERENCES Arts, Wil, Piet Hermkens, and Peter van Wijck. 1991. “Income and the Idea of Justice: Principles, Judgments, and Their Framing.” Journal of Economic Psychology 12:121- 140. Atkinson, Anthony B., and Thomas Piketty. 2006. Top Incomes Over the Twentieth Century. Oxford: Oxford University Press. Baker, George P., and Brian J. Hall. 2004. “CEO Incentives and Firm Size.” Journal of Labor Economics 22:767-798 Berger, Joseph, Morris Zelditch, Bo Anderson, and Bernard P. Cohen. 1972. "Structural Aspects of Distributive Justice: A Status-Value Formulation." Pp. 119-246 in Joseph Berger, Morris Zelditch, and Bo Anderson (eds.), Sociological Theories in Progress, Volume 2. Boston: Houghton Mifflin. Berk, Richard A., and Peter H. Rossi. 1977. Prison Reform and State Elites . Cambridge, MA: Ballinger. Bok, Derek. 1993. The Cost of Talent: How Executives and Professionals Are Paid and How It Affects America. New York: Free Press. Boxman, Ed A. W., Paul M. De Graaf, and Hendrik D. Flap. 1991. “The Impact of Social and Human Capital on the Income Attainment of Dutch Managers.” Social Networks 13:51- 73. Brickman, Philip, R. Folger, E. Goode, and Y. Schul. 1981. “Micro and Macro Justice.” Pp. 173-202 in M. J. Lerner and S. C. Lerner (eds.), The Justice Motive in Social Behavior. New York: Plenum. Conyon, Martin, and Kevin Murphy. 2000. “The Prince and the Pauper? CEO Pay in the United States and the United Kingdom.” The Economic Journal 110:640-671. Crystal, Graef. 2002. “No Accounting for CEO Pay Gap.” www.bloomberg.com . Dell, Michael S. (with Patricia R. Olsen). 2003. “More Fun Than School.” The New York Times, Business Section, 9 March 2003. http://www.bloomberg.com 23 Hall, Brian J., and Jeffrey B. Liebman. 1998. “Are CEOs Really Paid Like Bureaucrats?” Quarterly Journal of Economics 113:653-691. Jasso, Guillermina. 1978. "On the Justice of Earnings: A New Specification of the Justice Evaluation Function." American Journal of Sociology 83:1398-1419. ______. 1983. "Fairness of Individual Rewards and Fairness of the Reward Distribution: Specifying the Inconsistency between the Micro and Macro Principles of Justice." Social Psychology Quarterly 46:185-199. ______. 1988. "Whom Shall We Welcome? Elite Judgments of the Criteria for the Selection of Immigrants." American Sociological Review 53:919-932. ______. 1990. "Methods for the Theoretical and Empirical Analysis of Comparison Processes." Sociological Methodology 20:369-419. ______. 2006. “Factorial Survey Methods for Studying Beliefs and Judgments.” Sociological Methods and Research 34:334-423. ______. 2007. “Studying Justice: Measurement, Estimation, and Analysis of the Actual Reward and the Just Reward.” Pp. 225-253 in Kjell Törnblom and Riel Vermunt (eds.), Distributive and Procedural Justice: Research and Social Applications. London, UK: Ashgate. Manuscript available as IZA Discussion Paper No. 2592 at www.iza.org. ______, and Peter H. Rossi. 1977. "Distributive Justice and Earned Income." American Sociological Review 42:639-651. ______, and Murray Webster, Jr. 1999. "Assessing the Gender Gap in Just Earnings and Its Underlying Mechanisms." Social Psychology Quarterly 62:367-380. ______, and Bernd Wegener. 1997. "Methods for Empirical Justice Analysis: Part I. Framework, Models, and Quantities." Social Justice Research 10:393-430. Johnston, Jack, and John DiNardo. 1997. Econometric Methods. Fourth edition. New York, NY: McGraw-Hill. Kelley, Jonathan, and M. D. R. Evans. 1993. “The Legitimation of Inequality: Occupational Earnings in Nine Countries.” American Journal of Sociology 99:75-125. http://www.iza.org. 24 Master, Melissa. 2002. “How Much Should A CEO Make?” Across the Board (November/December). Website of The Conference Board (www.conference-board.org ). McGeehan, Patrick. 2003. “Executive Pay: A Special Report.” The New York Times, 6 April 2003. Meyer, Pearl. 2003. “From Halos to Horns: Demonizing the American CEO.” Paper available at www.execpay.com . Meyersson, Eva M. 1994. Kompensations Kontrakt I Börsnoterade Företag. Stockholm, Sweden: Almqvist & Wiksell International. Murphy, Kevin J. 1999. “Executive Compensation.” Handbook of Labor Economics 3B:2485- 2562. O’Reilly III, Charles A., and Olivia A. O’Neill. 2003. “Women’s Careers: The Impact of Sex and Gender Identity on Career Attainment.” Unpublished paper. Piketty, Thomas, and Emmanuel Saez. 2006. “The Evolution of Top Incomes: A Historical and International Perspective.” American Economic Review 96:200-205. Roine, Jesper, and Daniel Waldenström. 2006. “The Evolution of Top Incomes in an Egalitarian Society: Sweden 1903-2004.” IFN Working Paper Number 667. Rosen, Sherwin. 1992. “Contracts and the Market for Executives.” Pp. 181-211 in Lars Wein and Hans Wijkander (eds.), Contract Economics. Cambridge, MA, and Oxford, UK: Blackwell. Rossi, Peter H. 1979. "Vignette Analysis: Uncovering the Normative Structure of Complex Judgments." Pp. 176-186 in Qualitative and Quantitative Social Research: Papers in Honor of Paul F. Lazarsfeld, edited by Robert K. Merton, James S. Coleman, and Peter H. Rossi. New York: Free Press. _____, and Andy B. Anderson. 1982. "The Factorial Survey Approach: an Introduction." Pp. 15-67 in Measuring Social Judgments: the Factorial Survey Approach, edited by Peter H. Rossi and Steven L. Nock. Beverly Hills: Sage. http://www.conference-board.org http://www.execpay.com 25 Söderström, Hans Tson, Erik Berglöf, Bengt Holmström, Peter Högfeldt, and Eva M. Meyersson Milgrom. 2003. Corporate Governance and Structural Change: European Challenges. Stockholm, Sweden: SNS Förlag. Stevens, S. S. 1975. Psychophysics: an Introduction to Its Perceptual, Neural, and Social Prospects. Edited by Geraldine Stevens. New York: Wiley. Svallfors, Stefan. 1997. “Worlds of Welfare and Attitudes to Redistribution: A Comparison of Eight Western Nations.” European Sociological Review 13:283-304. Verwiebe, Roland, and Bernd Wegener. 2000. “Social Inequality and the Perceived Income Justice Gap.” Social Justice Research 13:123-149. Wall Street Journal. 2003. “Special Report: Executive Pay.” April 14, 2003. Walster, Elaine, Ellen Berscheid, and G. William Walster. 1976. “New Directions in Equity Research.” Pp. 1-42 in Leonard Berkowitz and Elaine Walster (eds.), Equity Theory: Toward a General Theory of Social Interaction. New York: Academic. Wegener, Bernd. 1991. “Relative Deprivation and Social Mobility: Structural Constraints on Distributive Justice Judgements.” European Sociological Review 7:3-18. Table 1. Characteristics of the Fictitious CEOs Described in the Vignettes 1. Age Eleven levels, in increments of five years, from 20 to 70 years. 2. Sex (1) Male (2) Female 3. Years of Schooling Completed Fifteen levels, in increments of one year, from completion of sixth grade to a doctoral degree. 4. Years as CEO Sixteen levels, in increments of one year, from 0 to 15 years. 5. Firm Headquarters (1) United States (2) Europe (3) Asia 6. Industry of This Firm (1) Manufacturing (2) Finance and insurance (3) Information (4) Wholesale trade 7. Size of Firm – Capitalization Twenty-seven levels, from $50 million to $600 billion. [50m, 75m, 100m, 125m, 150m, 175m, 200m, 250m, 500m, 600m, 700m, 800m, 900m, 1b, 5b, 10b, 15b, 20b, 25b, 50b, 75b, 100b, 200b, 300b, 400b, 500b, 600b] 8. CEO Total Compensation (salary, signing bonus, value of restricted stock, savings and thrift plans, and other benefits, but excluding options) Twenty-seven levels, from $50 thousand to $600 million. [50t, 75t, 100t, 125t, 150t, 175t, 200t, 250t, 500t, 600t, 700t, 800t, 900t, 1m, 5m, 10m, 15m, 20m, 25m, 50m, 75m, 100m, 200m, 300m, 400m, 500m, 600m] Note: The population of fictitious CEOs (called "vignettes") consists of all the logically possible combinations of characteristics. Logically impossible combinations are deleted. These are defined as meeting one of the following conditions: (i) age minus schooling LT 5; (ii) age minus years as CEO LT 16; and (iii) capitalization/compensation LT 10. Random samples are drawn from the adjusted population for presentation to respondents. Table 2. Estimated CEO Just Earnings Matrix: Just Earnings (in Thousands of 2001$) for CEOs, as Judged by MBA Students, Sweden 2001 ----------------------------------------------------------------------------------------------------- Resp | CEO ID, Deck 1a ID | 1 2 3 4 5 6 7 8 9 10 ----------+------------------------------------------------------------------------------------------ 1 | 1000 151523 18142 151523 175 11010 1783 19756 2469 390 2 | 701 295 2349 63 222 1179 839 8516 1064 1863 5 | 134 2785 449 1246 175 999 160 629 223 175 7 | 104 2177 13 106 175 200 376 376 962 372 9 | 537 1378 551 2567 401 5513 1211 11841 2241 3921 11 | 2643 69 1872 483 175 731 800 103202 100 463 15 | 1000 193 25 141 350 951 800 1599 283 350 17 | 455 27385 120941 1170 36 22643 8512 199209 484 95846 19 | 323 155 273 478 175 619 800 7652 956 541 21 | 1000 3312 2277 549 175 13249 15992 8785 331 1056 23 | 104 123 273 1182 175 776 638 12037 22639 275 25 | 1000 90335 256 115 154 1606 985 1213 230 216 27 | 9344 4365 2676 4365 1635 17461 18273 18273 8730 6250 29 | 1000 234 2476 11018 3819 432 171 37736 22036 1767 32 | 1000 75 16724 75 175 299 1196 44569 5571 1306 34 | 1000 2697 9 2697 579 2189 5876 43154 149 389 37 | 414 292 734 1703 504 1167 1620 9456 203 354 39 | 10579 1359 574 1359 175 2116 800 34851 11192 175 40 | 6 279 144 89 56 200 254 1419 3117 56 42 | 3003 144 297 1665 471 1359 289 505 43 | 7 994 171 135 39 200 295 295 100 175 ----------------------------------------------------------------------------------------------------- Resp | CEO ID, Deck 1b ID | 1 2 3 4 5 6 7 8 9 10 ----------+------------------------------------------------------------------------------------------ 3 | 202 30275 2263 248 35 992 800 5922 100 390 4 | 44 3174 140 398 175 2677 6374 143339 1339 830 10 | 1589 905 35389 529433 40516 418334 2.82e+10 12899 1.43e+27 557 12 | 312 1646 237 16905 1128 2054 250 8217 100 1797 14 | 149 335 215 129 16 77 18 309 100 175 16 | 261 191 48 50 146 200 511 800 100 274 18 | 290 24313 7254 93 8 20710 431 1485 470 3859 20 | 558 925 13949 925 98 11881 1434 1434 1849 1008 22 | 62147 18239 7683 18239 1027 3820 800 8470 36478 1853 24 | .102 50 25000 50 175 200 800 800 100 175 26 | 42969 1 163877 1 1 1311 800 225332 184634 7520 28 | 3 1382 395 174 76 303 152 800 100 76 30 | 270 356 3508 2539 337 200 800 1539 2639 648 31 | 1000 1712 730 50 5993 6849 800 800 17 1024 33 | 4 777 310 259 175 48278 800 193111 1554 175 35 | 782 134 622 317 210 370 432 2740 2171 175 36 | 1000 33665 37 353 336 134660 800 538639 175 38 | 400 230 257 575 175 5743 800 77879 2116 322 44 | 62 803 97 803 175 9749 800 206264 1606 2810 45 | 2 50 2178 1944 95 200 70 236 100 593 ----------------------------------------------------------------------------------------------------- Notes: Each respondent rated two twenty-vignette decks, either Deck 1a and Deck 2b or Deck 1b and Deck 2a. The ten CEOs shown are from Decks 1a and 1b (see text). CEOs with the same ID number are identical across these decks except for sex; the CEOs in Deck 1a are women and those in Deck 1b are men. Table 3. Summary of Estimated CEO Just Earnings Functions and Hypothesis Tests: Male MBA Students, Sweden 2001, 26 Respondents and 1039 Ratings Model/Test F-ratio (df) Model I: Common intercept and common slopes (13 parameters) 0.113 10.85 (12, 1026) Model II: Differential intercepts and common slopes (38 parameters) 0.346 14.32 (37, 1001) Model III: Differential intercepts and differential slopes (338 parameters) 0.591 3.00 (337, 701) Test of differential intercepts, conditional on common slopes: Model I vs. Model II 14.30 (25, 1001) Test of differential slopes, conditional on differential intercepts: Model II vs. Model III 1.40 (300, 701) Test of differential just earnings functions: Model I vs. Model III 2.52 (325, 701) Table 4. Summary Characteristics of Respondents’ Model III Equations and Selected Principles of Microjustice and Macrojustice: MBA Students, Sweden (2001) and the United States (2002) Swedish Men Swedish Women U.S. Men Mean S.D. Median Mean S.D. Median Mean S.D. Median A. Respondents’ Model III Equations Gender (1 = female) -.128 .806 -.0642 .0256 1.55 -.119 -.0249 1.39 -.180 Age .157 .177 .167 .0285 .602 .190 .209 .266 .149 Age-squared -.00154 .00175 -.00172 -.000372 .00564 -.00200 -.00208 .00271 -.00139 Years of schooling .0777 .0745 .0947 .0354 .118 .0549 .0528 .0878 .0528 Years as CEO .145 .234 .173 .426 .689 .271 .0355 .518 .0835 Years as CEO - squared -.00628 .0166 -.00737 -.0224 .0478 -.0132 -.00154 .0338 -.00559 Firm in Europe -.151 .740 -.134 -.416 .602 -.539 -.0547 .661 -.0668 Firm in Asia -.37 .839 -.220 -.428 1.18 -.519 .0179 1.15 -.0470 Firm in finance/insurance .119 .690 .0190 .869 .917 .998 -.146 1.34 -.0132 Firm in information -.00650 1.005 .0130 .640 1.16 .682 .235 .777 .174 Firm in wholesale trade -.182 .804 -.228 .665 1.70 -.00462 .251 1.02 .0534 Firm capitalization (log mil) .229 .203 .263 .382 .738 .138 .239 .280 .182 Constant -.856 4.45 -.749 .175 11.8 1.12 -1.34 6.57 .414 , just reward equation .491 .139 .466 .481 .140 .476 .440 .135 .436 B. Principles of Microjustice Just rate of return to school. .0777 .0745 .0947 .0354 .118 .0549 .0528 .0878 .0528 Just male base wage (2001K$) 27.0 60.6 .478 3.05 70.5 298.0 1.51 Just gender multiplier 1.15 .82 .938 9.01 31.3 .888 2.69 6.56 .835 C. Principles of Macrojustice Just median CEO pay (2 0 0 1 K $ ) 1270.39 1891.8 959.503 22871.2 83600.2 715.026 1738.23 2921.5 858.862 Just Gini’s ratio .735 .175 .757 .776 .171 .783 .783 .173 .764 Just Theil’s ratio 1.42 1.02 1.13 1.61 1.06 1.31 1.68 1.03 1.23 Just Atkinson’s ratio .68 .229 .727 .753 .209 .744 .761 .220 .778 Just MLD 1.86 1.92 1.30 4.95 10.6 1.36 3.22 4.74 1.51 Figure 2. Respondent-Specific Principles of Microjustice Figure 4. Respondent-Specific Principles of Macrojustice: Just Inequality ceo-text-2007-12-01-IZA.pdf ceo-tabs&figs-2007-12-13-port.pdf 
work_6su655zcibcbppdkdqyrhrxtxi	----	Resilience and Environmental Justice: Potential Linkages Procedia Economics and Finance 18 ( 2014 ) 416 – 424 2212-5671 © 2014 The Authors. Published by Elsevier B.V. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/). Selection and/or peer-reviewed under responsibility of the Centre for Disaster Resilience, School of the Built Environment, University of Salford. doi: 10.1016/S2212-5671(14)00958-7 ScienceDirect Available online at www.sciencedirect.com 4th International Conference on Building Resilience, Building Resilience 2014, 8-10 September 2014, Salford Quays, United kingdom Resilience and Environmental Justice: Potential linkages Vicente Sandovala,c*, Claudia Gonzalez-Muzziob, Cristian Albornozc aThe Bartlett Development Planning Unit, University College London, WC1H 9EZ London, United Kingdom bAmbito Consultores Ltda., Santiago, Chile cResearch Center on Vulnerability and Disasters (CIVDES), University of Chile, Santiago, Chile. Abstract In May 2008, the remote city of Chaiten in Chile was evacuated due to the risk of a volcano eruption. Few days later, severe floods drove to the destruction of the almost entire city. In the months following the disaster, the Government developed projects that failed to relocate the city to a safer location as well as strategies to support the affected population aimed to improve community resilience. Contradictory institutional policies as well as the unforeseen effects of implemented bond schemes have resulted in a highly segregated and environmentally unjust city where public policiesʼ outputs are unevenly distributed. Thus, this paper addresses how some related processes of increasing resilience may impact negatively upon environmental justice, hence exploring a potential inverse relationship between resilience and environmental justice. Five years on, nearly half of the population have returned to Chaiten despite the refusal of the authorities. While northern Chaiten concentrates most of the population and investment, 160 families living in the southern Chaiten bear the lack of potable water and other basic services, and are more vulnerable to future disaster impacts. Split in two due to both geography and policies, Chaiten faces now two realities. © 2014 The Authors. Published by Elsevier B.V. Selection and/or peer-reviewed under responsibility of the Huddersfield Centre for Disaster Resilience, University of Huddersfield. Keywords: Community resilience; Environmental justice; Post-disaster policies; Vulnerability; Chaiten * Corresponding author. Tel.: +44 (20) 7679 1111; fax: +44 (0)20 679 1112. E-mail address: vicente.sandoval.11@ucl.ac.uk © 2014 The Authors. Published by Elsevier B.V. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/). Selection and/or peer-reviewed under responsibility of the Centre for Disaster Resilience, School of the Built Environment, University of Salford. http://crossmark.crossref.org/dialog/?doi=10.1016/S2212-5671(14)00958-7&domain=pdf 417 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 1. Introduction This paper covers the collaborative work of consulting projects, previous studies and observations conducted by authors from 2011. Likewise, it compasses several community focus groups, interviews to authorities and local leaders undertaken between March and July 2013. Besides, an extensive archival and literature review led the observation and analysis processes. This paper focuses on discussing the case of Chaiten and the potential linkages on the co-production of resilience and environmental justice. On the one hand, environmental justice is understood here as the uneven distribution of risks, but also to access to goods and services such as clean water, energy, healthcare and education as well as an appropriate urban environment, including green-spaces (Walker and Bulkeley, 2006). On the other hand, resilience is understood here as follows: “[T]he ability of a social system to respond and recover from disasters and include those inherent conditions that allow the system to absorb impacts and cope with an event, as well as post-event, adaptive processes that facilitate the ability of the social system to re-organize, change, and learn in response to a threat” (Cutter et al., 2008). Based on the case of Chaiten, the discussion is centered on how did the social system – i.e. community and authorities at different levels– react to disaster and cope with disaster effects; how did the different stakeholders organize, adapt and learn from the event and whether or not community is better prepared for future events. In terms of the relationship between resilience and environmental justice, it is argued that post-disaster actions taken by both the authorities and community aimed to increase resilience may have negatively impacted on environmental justice. Hence, this paper explores a potential inverse relationship between resilience and environmental justice (Schilderman and Lyons, 2010). Likewise, this paper argues that erratic policies have led to uneven distribution of risks and limited access to basic needs and services among the population of Chaiten. Finally, this paper illustrates how inequities that did not exist before Chaiten volcano have erupted. Accordingly, it asserts that Chaiten population or Chaiteninos are nowadays more vulnerable to disasters than before 2008. 2. Chaiten post-disaster context In May 2008, the Chaiten volcano, located in Los Lagos Region at southern Chile, erupted and caused the evacuation of Chaitenʼs entire population (De la Barrera et al., 2011) and some other localities of Palena Province– (around 8,000 inhabitants). The population was evacuated mainly to surrounding cities such as Puerto Montt and Castro, all located more than 100 km away by sea. Several days after the evacuation, lahars combined with rain caused a massive flood that left Chaiten devastated and uninhabitable (Lara, 2009). The city split in two due to the Blanco River changed its course creating a new riverbed and river mouth (see Figure 1). Economic losses were estimated in US$12 millions for insured public buildings only (Lara, 2009), and still there is no estimation of the total cost of the disaster. About US$129 millions were spent during the first year and more than US$3 million were used to rebuild public infrastructure (Presidencia de la Republica 2009). The disaster not only affected Chaiten, the capital of the Province of Palena, but also the entire province –18,971 inhabitants (INE 2002)–. Provincial Government had to move temporarily to Futaleufú city –another city in the Province–. Likewise, the Municipality of Chaiten governed virtually from Puerto Montt until 2011 when the provincial and municipal governments were reinstalled in Chaiten. Three reports commissioned by the Chilean Government (Moreno and Lara, 2008, Moreno et al., 2008, SERNAGEOMIN, 2009) designated Chaiten as highly prone to new eruptions and seismic activity. Accordingly, in February 2009, the Ministry of the Interior announced by media that “Unfortunately, Chaiten is dead” (La Nación, 2009). This announcement implied that neither reconstruction of Chaiten nor further investment of any kind would take place in the current location. Consequently, alternative plans based on the displacement of Chaiten to safer areas were considered. By end-2009, Santa Barbara was chosen as location of the New Chaiten. A Master Plan was developed by the Ministry of Housing and Urbanism (MINVU) and the first planned city in Chile during the 21st century would be built in three stages, the first one to be completed by end-2012 (MINVU 2010). 418 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 Fig. 1. Map of Chaiten and the Blanco River pre- and post-2008 river course (Based on INFRACON S.A., 2012). However, in February the same year, a massive earthquake struck the southern-central area of Chile killing around 500 people, affecting other two million, and causing around US$30 billions in losses (EM-DAT, 2013). Therefore, plans for the New Chaiten were not a priority anymore (Ramirez, 2010). Despite the political shift from a left-wing government to a right-wing government in 2010, President Pinera stated that Chaiten should be relocated confirming the decision of the prior administration. Contradictorily, by end- 2010, the northern sector of Chaiten was declared inhabitable again. This drastic change, the Government stated, was based on a technical study (Municipalidad de Chaitén, 2011) but it was also as response to the demand of more than 500 people who had informally returned to the city and resisted any attempt of eviction and relocation (Rojas, 2013). According to local people: “It was a tremendous struggle against Governmentʼs intentions for relocating us definitively [...] We stayed firm and strong because Chaiten has always been our land, we did not want to live anywhere else” (anonymous local leader, 2013, personal communication). Chaiten was then divided not only by the new course of the Blanco River but also, and more importantly, by a political status that only considered livable the northern sector of Chaiten. However, according to local authorities, by 2013 more than 160 families informally inhabited the southern sector. Those families still live in a precarious situation; lack of access to basic services such as potable water, electricity or sewage as well as to health, social care and education. Although there are not official records on the total population of Chaiten, authorities assert that by 2013 around 2500 people inhabited the city, including those in the southern sector. 3. Promoting resilience from the State: Setting the unequal distribution of risk and urban services Although Chaiten is located near several active volcanoes, people were no aware of volcanic hazards (INFRACON S.A., 2012). When the eruption occurred, there was no evacuation plan. However, in 24 hours 4,101 people were evacuated by sea –by both Navy and private ships–, and in few days, more than 8,000 people were forced to evacuate the area (Presidencia de la Republica 2009). On 2nd May 2008, the area was declared as “Catastrophe Zone” (Gobierno Regional de Los Lagos - GORE, 2008). This measure had one-year application extensible for the same period. In Chaiten, it was in force until May 2010. During that period, several resources were allocated to support the displaced population by a total of US$ 78,5 million (Presidencia de la Republica 2009). Emblematic measures included monthly bonds –up to US$1,000 per family– for more than 3,200 families during the first year and about 1,800 families the second year; compensation 419 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 bonds for farmers; grants for children education; housing subsidies of around US$ 20,000 for 2,235 families; subsidies to entrepreneurship and psychological support; among others (Gobierno Regional de Los Lagos - GORE, 2009, Gobierno Regional de Los Lagos - GORE, 2010, Presidencia de la Republica 2009). In addition, the special Act so-called “Chaiten Law” allowed the State to purchase properties paying for them their market price prior the eruption. Once approved, the State bought 889 properties for a total of US$30 million (El Mercurio, 2013), that represented more than 75% of the housing stock. About 70 housing units were rented by inhabitants in the northern sector. Others, who did not sell their properties, re-occupied their own houses. About 50 properties were assigned to Public offices to function and, nowadays, the State is offering to sell back 112 properties, mainly to their previous owners (El Mercurio, 2013). However, in the southern sector there is no permission to rent or buy back properties, thus the occupied houses are illegally inhabited (Rojas, 2013). Besides supporting the displaced population, the Government commissioned technical studies to assess the feasibility of rebuilding or relocating Chaiten. The conclusion was to relocate Chaiten to the near town of Santa Barbara, located 10 km north from Chaiten (Pontificia Universidad Católica de Chile PUC et al., 2009). The Master Plan for the New Chaiten (MINVU 2010) had an implementation cost evaluated in US$300 million (Silva, 2010). Although some public infrastructure was built in Santa Barbara for aeronautical services, police and other Public offices, no other action was implemented. By May 2010, the regional authorities decided to discard the New Chaiten because of its cost and the refusal of local population (Municipalidad de Chaitén, 2011). As evidence of lack of coordination, days after that announcement, President Pinera amended the regional intendant’s declaration and insisted that the New Chaiten would be built (El Mercurio en Internet, 2010). Ironically, in December 2010 the northern sector of Chaiten was definitively declared inhabitable (Municipalidad de Chaitén, 2011). In order to take the decision of inhabit Chaiten again, the Government commissioned another study, which concluded that local population could live near volcanic ash because its effects could be mitigated by cleaning and planting the area (CIMM T&S Consultores, 2010). In addition, the volcanic activity was decreasing and some areas were not at risk from new floods and lahars (Intendencia Región de Los Lagos, 2010) (see Figure 2). Thus, by declaring Chaiten inhabitable, the relocation project was aborted and hence the responsibility of deciding to live in a place at risk was transferred to local people. The Government valued the insistence of Chaiteninos to live in Chaiten: Fig. 2. Analysis of exposed areas and their categorization (Based on CIMM T&S Consultores, 2010, Municipalidad de Chaitén, 2011) 420 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 “The Government has the conviction that cities have to born and grow by normal evolutionary processes, supported by the local population and not under the desire and majoritarian support of the State [...]. Santa Barbara would be today a venture financed and directed exclusively by the State, without evidence of support from a substantial group of local population to accompany such entrepreneurship of relocation. Moreover, the present inhabitants of Chaiten, in an firm and courageous attitude, have assumed based on their freedom and responsibility, the decision of inhabiting their land and stay in there, which this Government values and recognizes as the spirit that must animate the decisions of territorial settling in the region.” (Intendencia Región de Los Lagos, 2010). By examining the State responses, this paper discusses that, although these responses aimed to promote resilience and lower levels of risk, actions taken have been the main cause of exacerbating vulnerability and triggering unequal distributions of risk, resilience, and environmental and social justice. 4. Community responses, reacting to the State Erratic communication about the causes of seismic activity in the area preceding the eruption and potential risks to the population can be exemplified in a meeting between representatives of Chaiten population and the Regional Government few days before the eruption; “[T]he situation about tremors was so unclear and confuse that the conversation turned to the effects of drought in the region” (anonymous local leader, 2013, personal communication). Despite this, most of the population accepted the evacuation –without resistance– immediately when the authorities decided it. Both authorities and people considered the evacuation of the city as an appropriate preventive measure when pondering the risk of eruption. However, evacuees were guided with no predefined order to disperse cities in the region. In some cases, families were parted because women and children were evacuated first. Furthermore, the existing social organization was disarticulated and no interlocutors were able to represent the dispersed population or establish communication with regional and local authorities (Mardones et al., 2011). To face uncertainty, Chaiteninos configured a collective force named “Children and friends of Chaiten” in order to communicate to authorities their needs as well as their intention to return to the city. Due to the low impact they had on media, some of them decided to occupy Chaiten despite the existing ban. Some media agencies named them “The Rebels” (Rojas, 2013). Living in the abandoned city meant they had to manage to get potable water from a little stream they connected to water pipes, while energy was obtained from a diesel generator. People organized themselves to clean the streets and to repair their houses. They also redefined their previous livelihoods into subsistence strategies to face the scarcity of goods and products available in the city, with no commerce or jobs available. The Rebels –an emergent group as stated in Quarantelli (2004)– became the voice of the dispersed population. Communication between Chaiteninos was possible due to a radio programme called “Chaiten Here” emitted from the city. Despite the difficulties, the first settlers adapted to the new situation while encourage other Chaiteninos to return. The Rebels perceived that the “exiled people” were under pressure to stay in their hosting cities by the psychologists provided by the Government in order to support them in the relocation process. Psychologists were instructed to tell people that “Chaiten was dead and they could never inhabit there again”. Both the Rebels and other Chaiteninos referred that situation as “brain washing” promoted by the authorities in an effort to elude facing the demands of the population (anonymous local leader, 2013, personal communication) (Rojas, 2013). In 2010, when the decision of relocating the city was still in course, authorities argued that it was essential to establish a dialogue with the community to make this project come true (Cifuentes, 2009). However, the community considered the initiative came too late and claimed that the new city was only in the imagination of planners and public authorities. People living in Chaiten also argued that they were not considered during the participation meetings held regarding the relocation project. However, MINVU (2010) asserts that 460 displaced people living in 14 localities participated during the planning process (Chaiten was not in the list). By end-2010, basic services were restored in the northern sector of Chaiten, the local and provincial Government returned to the city and a new investment Plan was announced to improve public infrastructure (Municipalidad de Chaitén, 2011). The first settler of the South returned in 2010 to her own house –she did not sell it through “Chaiten Law”–, and currently near 160 families occupy houses in the sector, claiming that there is no housing stock available in the North. During the last two years, those families have invested in repairing houses while no public services are 421 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 available. South residents have organized to get water and electricity, prorating the cost (around US$60/month per family). However, no organization exists to satisfy other needs such as transport, healthcare and education as well as to secure livelihoods. Furthermore, people describe the South sector as a “post-war” environment surrounded by demolished buildings and debris accumulation (see Figure 3). Many people in the South walk every day to the centre, where things are coming back to normal while they still demand for a bridge which connects again North and South. In both sectors of Chaiten, social organizations have emerged mainly to secure access to basic services. In the case of northern Chaiten, there are territorial organizations such as the neighbourhoods committees "Chaiten Alive" and "Pillan". In the South, organizations that stand out are rather functional because residents still have not secured their basic needs. According to some neighbours, the level of participation (in terms of Wilson, 2012) has fallen since northern organizations have obtained solutions to their claims. The same happens regarding risk perception as it has decay over time and less attention is paid to disaster risk reduction measures (Wisner et al., 2004), such as future evacuation plans. Chaiteninos mention that they do not trust in authorities anymore. They feel that Chaiten city could have been saved from floods if both people and authorities would have stayed during the eruption. “We would not evacuate again and future floods could be mitigated reinforcing the riverbed of the Blanco River” (anonymous local leader, 2013, personal communication). Although some mitigation measures were taken to protect the North edge of the new riverbed from floods and erosion, there are no studies about the South as none public investment in the area is permitted. In contrast to this, INFRACON (2012) asserts that despite mitigation measures may decrease the damage of frequent floods, the effects of an intense volcanic event as well as extreme floods could be catastrophic for the entire city. As the city is located in a highly exposed area, it is not clear how vulnerability may be reduced by mitigation measures. Although there are many Chaiteninos still in “exile”, not all of them will return to Chaiten as some have effectively integrated into other locations. Fig. 3 Part of demolished housing units in southern Chaiten 5. Beyond the volcano, unforeseen outcomes on resilience and environmental justice In Chaiten, political decisions taken and policies’ effects have dramatically eroded people’s ability to learn from and adapt to disasters. In that sense, an example is provided by unforeseen effects resulting from the monthly social 422 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 benefit named Bono Emergencia Chaiten and the one-off housing subsidy delivered by MINVU. During the two years of the emergency benefits, according to some local officers, people turned literally “crazy” due to the amount of money. “Prior to 2008, people used to live with so much less [...] when they received ʻthatʼ amount of money many people wasted it in holidays, travelling and expensive clothing” (anonymous public employee, 2013, personal communication). When benefits ran out, the bulk of people found themselves without savings, with debts and some with psychological problems (Paz, 2011, Sáez, 2009). In other words, while on the one hand benefits brought help and support for affected people during the crisis, on the other hand, benefits eroded community resilience by disarticulating people’s livelihoods and producing dependency on Government support, thus threatening people’s ability to react from and recover from disasters (Schilderman and Lyons, 2010) The same logic applies to other circumstances where both community and local authorities’ actions –and inactions– exacerbated the unequal distribution of environmental risks –mainly related to floods and to volcanic hazards–, vulnerability and resilience. The divided city of Chaiten not only resulted as consequence of nature but it was accentuated by policies and responses. For instance, the institutional incapacity –i.e. at municipal and regional level– for managing and promoting resilience revealed how governance centralization may limit community and local authorities’ actions. For one year since the disaster, the Government created and maintained a special authority, the Presidential Delegate, which aimed to support displaced families but also competed with regional and local authorities on the rehabilitation of Chaiten (Allard, 2010). The tension created by this special authority affected people’s trust in authorities as much as erratic decisions of declaring Chaiten “dead” and then “alive” again. The same inconsistent attitude also feeds people’s hopes for seeing South sector declared inhabitable again, perpetuating uncertainty among the population. The community’s demand for a bridge that connect North and South as well as flooding protection for the southern edge of the riverbed remains unattended as volcanic hazard provides an excuse. Ironically, Municipality, the Regional Government and recently the National Government have shown signs on the change of the South’s political status (Jara and Baeza, 2012) by investing in the area –i.e. an approved street lighting project for 2013 and a playground already implemented–. While the environmental injustice in Chaiten can be expressed through the way in which the southern sector is disproportionally more exposed than the North, the resilience of Chaiten population –as a whole– has been and is being eroded by political decisions. As mentioned above, only marginal attempts for promoting resilience within people in the South have been implemented by the Government. “Chaiten population are poorer than 2008 and less self-organized than 2010” (anonymous high municipal officer, 2013, personal communication). Inversely, as Schilderman and Lyons point out (2010), the environmental injustice of the spatial distribution of risk may also be shaped by decisions taken to increase the resilience of the city. For instance, while Regional government started demolition works of housing units in the South in order to avoid more occupations in the area –and thus reducing the number of people exposed to hazards–, all new housing projects in the North were abruptly ended (Baeza, 2013). General and specific political forces may shape the way in which processes of environmental justice and resilience interact within the Chaiten post-disaster context. As presented throughout this paper, political actions should not be considered as mere underlying factors of disasters (Pelling, 2006, Wisner et al., 2004) but determinants for defining the exposure to and ability to recover from hazardous events. As explored above, community responses to policies and decisions taken in a post-disaster context have resulted in resisting actions to and erosion-of-trust in authorities and in the public sector. 423 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 6. References Allard, P., 2010. ‘Fables of Reconstruction: Chaitén, After the Volcano’, Revista Harvard Review of Latina America, 9 (2), 36-38. Baeza, A., 2013. A cinco años de la erupción del volcán Chaitén: los logros y los proyectos de una ciudad que estuvo cerca de desaparecer [press release], 23 Apr, available: http://goo.gl/ocp47P [accessed 22 Aug 2013]. Cifuentes, C., 2009. Delegada presidencial inicia proceso informativo por reubicación de Chaitén [press release], 25 Feb, available: http://www.latercera.com/contenido/680_104618_9.shtml [accessed 19 Aug 2013]. CIMM T&S Consultores, 2010. Estudio de contaminación de cenizas y suelos en la ciudad de chaitén y propuesta de medidas de mitigación y restauración, Santiago de Chile: SEREMI Salud Región de Los Lagos. Cutter, S. L., Barnes, L., Berry, M., Burton, C., Evans, E., Tate, E. and Webb, J., 2008. ‘A place-based model for understanding community resilience to natural disasters’, Global Environmental Change, 18 (4), 598-606. De la Barrera, F., Reyes-Paecke, S. and Meza, L., 2011. ‘Landscape analysis for rapid ecological assessment of relocation alternatives for a devastated city’, Revista Chilena De Historia Natural, 84 (2), 181-194. El Mercurio, 2013. Chaitén, a cinco años de dura erupción [press release], 29 Apr, available: http://goo.gl/IVRuPD [accessed 21 Aug 2013]. El Mercurio en Internet, 2010. Piñera corrige al intendente de Los Lagos y asegura que Nueva Chaitén se emplazará en Santa Bárbara [press release], 27 May, available: http://goo.gl/IemHg5 [accessed 21 Aug 2013]. EM-DAT, 2013. 'Chile Country Profile' [online], available: http://www.emdat.be/result-country-profile Gobierno Regional de Los Lagos – GORE, 2008. Decreto Supremo Nº 588 del 02 de Mayo de 2008 que Señala como afectada por la catástrofe a la Provincia de Palena, Puerto Montt: Ministerio del Interior. Gobierno Regional de Los Lagos – GORE, 2009. Criterios en el Proceso de Asignación del Bono de desplazamiento víctimas del Volcán Chaitén, Puerto Montt: Ministerio del Interior. Gobierno Regional de Los Lagos – GORE, 2010. Criterios en el Proceso de Asignación del Bono de desplazamiento víctimas del Volcan Chiatén 2010, Puerto Montt: Ministerio del Interior. INFRACON S.A., 2012. Estudio de riesgo de sismos, volcanismo, remoción en masa, inundación por desborde de cauces y canales y maremotos para ocho localidades de la comuna de Chaitén, Informe Final, Santiago de Chile: SUBDERE. Instituto Nacional de Estadísticas de Chile INE, 2002. Censo, Santiago de Chile: INE. Intendencia Región de Los Lagos, 2010. 'Informó el intendente Montes: Declaración sobre habitabilidad de Chaitén', Gobierno de Chile [online], available: http://www.intendencialoslagos.gov.cl/n154_10-12-2010.html [accessed 21 Aug 2013]. Jara, A. and Baeza, M., 2012. 'Alcalde defiende gestión de atender a familias que viven en Chaitén Sur pese a no estar habilitado', BioBioChile.cl [online], available: http://rbb.cl/2p16 [accessed 03 Aug 2013]. La Nación, 2009. Edmundo Pérez Yoma: "Chaitén desgraciadamente ha muerto" [press release], 20 Feb, available: http://goo.gl/kt66ob [accessed 1 Aug 2013]. Lara, L. E., 2009. ‘The 2008 eruption of the Chaitén Volcano, Chile : A preliminary report’, Andean geology, 36, 125-129. Mardones, R., Rueda, S. and Guzmán, M., 2011. ‘Tejiendo vínculos: una mirada a la organización “renacer de Chaitén” de la tercera edad en un contexto de posdesastre’, Cuadernos de Crisis y Emergencias, 2 (10), 19-40. Ministerio de Vivienda y Urbanismo MINVU, 2010. Plan Maestro Ciudad de Chaitén: Informe Final, Santiago de Chile: MINVU. Moreno, H. and Lara, L., 2008. Peligros volcánicos potenciales del volcán Chaitén, Región de Los Lagos, Santiago de Chile: SERNAGEOMIN. Moreno, H., Lara, L., Arenas, M. and Derch, P., 2008. Evaluación preliminar de los peligros geológicos en la ciudad de Chaitén, Provincia de Palena, región de Los Lagos, Santiago de Chile: SERNAGEOMIN. Municipalidad de Chaitén, 2011. Reconstrucción de Chaitén, Santiago de Chile: Gobierno Regional de Los Lagos. Paz, V., 2011. Deudas, miedo y abandono, la otra cara del Chaitén [press release], 11 Jan, available: http://goo.gl/3i2l9A [accessed 11 Mar 2012]. Pelling, M., 2006. Natural disasters as catalysts of political action, ISP/NSC briefing paper, 06 (01), 4-6. Pontificia Universidad Católica de Chile PUC, Observatorio de Ciudades PUC, Universidad Austral de Chile and ARUP, 2009. Consultoría para el desarrollo de lineamientos estratégicos de reconstrucción / relocalización y Plan Maestro conceptual post-desastre Chaitén, Santiago de Chile: PUC. Presidencia de la República de Chile, 2009. Cuenta Pública de la Delegada Presidencial Paula Narváez en Chaitén, Santiago de Chile: Gobierno de Chile. Quarantelli, E. L., 2004. 'Emergent behaviors and groups in the crisis time periods of disasters', Preliminary Paper - University of Delaware, Disaster Research Center working paper, No. 206, 1-8. Ramirez, N., 2010. Alcalde de Chaitén: ¡En Talcahuano sabrán que nosotros llevamos dos años sin agua! [press release], 10 May, available: http://goo.gl/YpKn02 [accessed 11 Mar 2012]. 424 Vicente Sandoval et al. / Procedia Economics and Finance 18 ( 2014 ) 416 – 424 Rojas, J., 2013. La reconquista de Chaitén [press release], 23 Jul, available: http://www.theclinic.cl/2013/07/23/la-reconquista-de-chaiten/ [accessed 30 Jul 2013]. Sáez, M. E., 2009. 'Chaitén: ¿Por qué resistimos? Un testimonio de las familias que permanecen en Chaitén', Part 1 of 11 [Ethnographic documentary], available: http://goo.gl/aBNXAW [30 Apr 2012]. Schilderman, T. and Lyons, M., 2010. ‘Resilient dwellings or resilient people? Towards people-centred reconstruction’, Environmental Hazards, 10 (3-4), 218-231. SERNAGEOMIN, 2009. Erupción del Volcán Chaitén: Informes técnicos Mayo 2008-Marzo de 2009, Santiago de Chile: SERNAGEOMIN. Silva, S., 2010. 'Piñera asegura que Chaitén será reubicado en localidad de Santa Bárbara', Radio Universidad de Chile [online], available: http://goo.gl/aCzJmn [accessed 20 Jul 2013]. Walker, G. P. and Bulkeley, H., 2006. ‘Geographies of Environmental Justice’, Geoforum, 37 (5), 655-659. Wilson, G. A., 2012. ‘Community resilience, policy corridors and the policy challenge’, Land Use Policy, 31 (0), 298-310. Wisner, B., Blaikie, P., Cannon, T. and Davis, I., 2004. At risk : natural hazards, people's vulnerability, and disasters, 2nd ed., London ; New York: Routledge. 
work_6tgd6mmkunfvtensx2zee6dote	----	UCL Judicial Institute - UCL – University College London Close UCL Home Prospective students Current students Staff Give UCL Judicial Institute Home Home About People Events Research Publications Contact Us UCL Home UCL Judicial Institute Home About People Events Research Publications Contact Us Home About People Events Research Publications Contact Us UCL Home UCL Judicial Institute UCL Judicial Institute The UCL Judicial Institute is the UK's first and only centre of excellence devoted to research, teaching and policy engagement about the judiciary Groundbreaking  Carrying out groundbreaking research, teaching and policy development to promote understanding of the judiciary and a fair and effective judicial system Research  Conducting cutting-edge and interdisciplinary research on the judiciary that has a high policy impact     Teaching Pioneering teaching in judicial studies that brings students in direct contact with judges and policy-makers Professional development  Creating new professional development programmes about judges and the judicial process for lawyers in practice Public debate  Serving as a public forum to address key issues facing judges and courts worldwide International Conducting comparative judicial research and serving on international organisations devoted to understanding and improving the judicial process Judges Groundbreaking research about and with judges exploring judicial decision-making, appointments, education and the judicial process Juries  Landmark research on the jury system in this country by the UCLJury Project, examining the fairness of the jury system and working exclusively with real jurors at court Tribunals  Path-breaking empirical research on perceptions of tribunals and the fairness of tribunal decision-making Judicial diversity  Leading on research and policy development on how to achieve a more representative judiciary Future justice  Addressing the legal, social and technological challenges facing  judges and courts in the 21st century Civil justice  World-renowned expertise on the civil justice system and the public use of the legal system Contact us Email: judicialinstitute@ucl.ac.uk Tel: 020 3108 8485 Address: UCL Faculty of Laws Bentham House 4-8 Endsleigh Gardens London WC1H 0EG Find us on Google Maps Watch Purple Haze: Professor C Thomas give Inaugural Lecture (YouTube) Download Dominic Grieve's speech on "Why Conservatives Need the ECHR" [pdf]  CPD Course Programme "Understanding Judging" [pdf]  36th F A Mann Lecture by Professor Dame Hazel Genn [pdf]    UCL facilities About UCL Faculties and departments Library Museums and Collections UCL Bloomsbury Theatre UCL Shop UCL locations Maps and buildings UCL and London UCL Global Connect with UCL Alumni Businesses Media Relations Jobs Support us University College London, Gower Street, London, WC1E 6BT Tel: +44 (0) 20 7679 2000 Copyright © 2021 UCL Disclaimer Freedom of Information Accessibility Privacy and Cookies Slavery statement Contact Us 
work_6uoaqa6pxza3tfmjem2mzzcpvu	----	Lifestyle, responsibility and justice E Feiring Correspondence to: E Feiring, Postdoctoral research fellow, Department of Political Science, University of Oslo, PO Box 1097 Blindern, N-0317 Oslo, Norway; eli.feiring@stv.uio.no Received 7 September 2006 Revised 30 November 2006 Accepted 6 December 2006 Unhealthy lifestyle contributes significantly to the burden of disease. Scarce medical resources that could alternatively be spent on interventions to prevent or cure sufferings for which no one is to blame, are spent on prevention or treatment of (the risk of) disease that could be avoided through individual lifestyle changes. This may encourage policy makers and health care professionals to opt for a criterion of individual responsibility for medical suffering when setting priorities. The following article asks whether responsibility-based reasoning should be accepted as relevant for fair and legitimate healthcare rationing. The luck- egalitarian argument that inequalities in health expectancies that derive from unchosen features of people’s circumstances are unjust and should be compensated, while inequalities that reflect perso- nal choices of lifestyle may not, is discussed. It seems that while a backward-looking interpreta- tion of individual responsibility cannot be relevant as a criterion of priority setting, a forward-looking conception of responsibility may be approved. Within all modern societies healthcare autho- rities are facing difficult priority setting problems. Various criteria for rationing medical intervention have been proposed due to scarcity of resources. Until now, individual responsibility for medical suffering has been given little attention in the public or in academic debate. This is about to change. As Alexander Cappelen and Ole Norheim have pointed out in a recent article in this journal, unhealthy lifestyle contributes increasingly to the burden of disease. A better understanding of the responsibility argument is important for the assessment of policies aimed at meeting this challenge.1 In this article the following question is addressed: should responsibility-based arguments be accepted as relevant to meeting healthcare rationing fairly and legitimately? I will argue that while a backward-looking conception of individual responsibility should not be endorsed, a forward- looking notion of responsibility may be approved. RESPONSIBILITY AND JUST ALLOCATION OF HEALTHCARE There are both empirical and theoretical reasons for why it is time to ask whether people in developed countries should be held responsible for their health and if so, how a criterion of responsibility should be applied as a limit-setting device when deciding whether or not a particular medical intervention should be part of public healthcare and how to set priorities among patients. As reported by the World Health Organization (WHO), most of the risk factors contributing to the burden of disease can be attributed to unhealthy lifestyle.2 Thus, one of the major challenges for healthcare authorities in liberal-democratic welfare states seems to be the fact that scarce resources are spent on treatment of medical sufferings that, at least to some degree, could be avoided through individual lifestyle changes. Theoretically, there has been a shift in the general ideal of equality of opportunity from the traditional ideal of equality of condition to an ideal of equality that incorporates responsibility by compensating individuals for unequal circum- stances while holding them responsible for their choices. The view that egalitarianism is based on a concern with a choice-oriented view of responsi- bility may be labelled luck-egalitarianism.3 Although this view is expressed somewhat differ- ently among scholars, the core ideas are as follows.4–6 The concern of distributive justice is ‘‘to eliminate so far as possible the impact on people’s lives of bad luck that falls on them through no fault or choice of their own’’.7 Inequalities generated by the individual’s volun- tary choices are, however, acceptable and do not give rise to redistributive claims on others. Nobody is required to mitigate the effects of these choices. The principle of responsibility implies that society ought to distribute goods and burdens in a way that is luck-neutralising and choice-sensi- tive. When applied on issues of just allocation of healthcare, the principle suggests that inequalities in health expectancies that stem from differences in lifestyle that reflect personal priorities are justified, and might not be compensated. A back- ward-looking interpretation of individual responsi- bility for (high risk of) deviations from normal functioning would imply that people should be held responsible for their medical condition in virtue of their prior conduct. It is, however, not obvious exactly what this means. The answer to this question is highly important when deciding whether there are good reasons to accept a back- ward-looking conception of individual responsibil- ity when making decisions on priority setting within healthcare. THE CASE OF OBESITY Consider the case of obesity. As reported by the WHO, obesity (body mass index.30) has become an epidemic and leads to increased risks of coronary heart disease, stroke, type 2 diabetes, osteoarthritis, and several cancers.2 The increased incidence of obesity cannot be blamed on either environment or genetics alone. Increase in caloric intake and decrease in physical activity are primarily responsible for it, although genetic back- ground, maternal weight, and socioeconomic sta- tus are important.8 Both prevention and treatment of obesity are necessary means to reduce risk of severe disease Law, ethics and medicine J Med Ethics 2008;34:33–36. doi:10.1136/jme.2006.019067 33 o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 0 0 6 .0 1 9 0 6 7 o n 2 1 D e ce m b e r 2 0 0 7 . D o w n lo a d e d fro m http://jme.bmj.com/ and premature death.9 For many, losing weight is difficult. It is shown that fewer than five percent of people who attempt diet and exercise recommendations succeed.10 Psychological inter- vention is often necessary to help obese patients initiate and maintain behaviour change.11–12 Alternatives are pharmacologic therapy for obesity, and surgery. SHOULD LIFESTYLE CHOICES AFFECT PRIORITY SETTING? Now, let us assume that we live in a developed country with a universal coverage healthcare system with no supplementary tier that is purchased by those who are best off in society. There is no private healthcare insurance available. Trivially, the assumptions of scarcity and opportunity costs apply. Public healthcare resources are scarce and time and technology invested to provide a given medical intervention always have an alternative usage within (and without) the public healthcare system. We are engaged in the deliberation on whether a particular intervention i1 to treat obesity for the purpose of reducing risk r1 of severe disease x should be part of public healthcare, and whether information on lifestyle and body mass index should be given weight (if at all) when setting priorities among patients waiting for a particular medical intervention i2 to treat a severe disease x (associated with lifestyle-induced risk r1 as well as non-lifestyle induced risks r2, r3…). The following arguments are put forward. First, if obesity is rightly attributed to individual lifestyle choices, i1 should not be covered within the public healthcare system. Second, i2 should be allocated according to a priority-rule that assigns longer waiting time to patients suffering from x as a result of individual lifestyle choices (contributing to r1), than for patients suffering from x as a result of factors not within their control (contributing to r2, r3...). The luck-egalitarian mode of reasoning may explain the intuitions behind these arguments. If lifestyle preferences are formed under conditions of justice and circumstantial differ- ences in opportunity to choose a healthy lifestyle are neutralised through preventive means, then outcomes that are suitably related to one’s choices (option luck) need not be compensated. The individual may be asked to bear the costs of engaging in risky behaviour.13 Although it is difficult to avoid risk altogether, she may be held responsible for not choosing the least risky prospect.14 Differences in people’s access to treatment should be allowed when they are due to differences in lifestyle choices. It seems, however, that it would not be reasonable to hold people wholly responsible for outcomes that reflect option luck in these matters. Obesity may not adequately explain why some get a (face a high risk of) severe disease x and others do not, because (high risk of) disease is an outcome partly determined by occurrence of events we cannot reasonably avoid the possibility of (brute luck). It may, then, be wrong to deny any claims on society to provide an intervention i1 to treat obesity for the purpose of reducing risk r1 of severe disease x. Nevertheless, these claims would be weak and may be overridden by competing claims when allocating healthcare resources. Accordingly, the obese patient suffering from x should not be held wholly responsible for her situation at the sick bed and be denied treatment. Assigning longer waiting time for treatment to obese patients than to their normal-weight counterparts may be one way of holding people partly responsible for their lifestyle choices. To sum up: If the individual can reasonably be held responsible for (high risk of) deviations from normal functioning due to obesity, she has weak claims on society to provide specialized medical intervention within a limited healthcare budget. DISCUSSION: INDIVIDUAL RESPONSIBILITY REJECTED? Do we have sufficient reason to accept limit-setting according to this line of argumentation as fair and legitimate? I think the answer is no. In general, the luck-egalitarian position has been criticised for a number of reasons that I cannot pursue in any depth here.3 15–21 Let me briefly make four points. First, it appears to be a flaw to ground the idea of egalitarianism on the distinction between choices and circum- stances. As Samuel Scheffler has pointed out, this distributive formula must be part of a larger normative theory.20 Unless the category of choice is explained as distinctive in a way that makes it a privileged indicator of the fairness or unfairness of an outcome, it is difficult to understand why it should have such a fundamental importance as it has within luck-egalitarianism. Second, the choice-circumstances dichotomy seems implausible, because choices may better be thought of as simultaneously autonomous and socialised.17 20 21 It is hard to identify any action that is not partly determined by circumstance under- stood as the social contexts in which the individual finds herself or her traits of character (included the ability to choose). It is not obvious, then, what it means that someone may reasonably be held responsible for her actions. Third, although people may be held responsible for their choices in the sense of being open to moral criticism for negligence or high-risk behaviour, this does not imply that they are not entitled to any assistance.3 15 20 Issues of what people are to be held responsible for should be distinguished from issues of how deserving they are. In Susan Hurley’s words, responsibility cannot play a pattering role.18 Fourth, luck-egalitarianism may promote the wrong ‘‘ethos of equality’’.16 As Elizabeth Anderson has forcefully put the argument:3 (T)he social process of distinguishing responsible from irresponsible, deserving from non-deserving citizens is inher- ently disrespectful and unfair to all members of society (…). (T)aking the imperative of justice to be undoing the effects of all brute bad luck inherently erases the line between what is the legitimate concern of society and what should be left to individual discretion. Healthcare is a special good When considering the backward-looking concept of individual responsibility within the healthcare context, I think there are reasons external to the luck-egalitarian position that may explain why it is so important to pay attention to these critical points. The core of the argument is that healthcare is a special good and should not be allocated to eliminate the impact of bad brute luck or to ensure that everyone gets what they morally deserve. As Norman Daniels has pointed out, what makes healthcare special is its role in establishing fair equality of opportunity.22 23 The proper aim of healthcare allocation is to contribute to protect (age-relative) opportunity for participa- tion in society on a roughly equal footing. Disability and disease reduce the range of opportunities to exert citizenship that people would otherwise enjoy. The idea of equal citizenship is part of the liberal-contractual notion of society as a fair system of cooperation among free and equal people. Equality is an ideal that governs the terms of cooperation, and is not solely a distributive notion.20 Law, ethics and medicine 34 J Med Ethics 2008;34:33–36. doi:10.1136/jme.2006.019067 o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 0 0 6 .0 1 9 0 6 7 o n 2 1 D e ce m b e r 2 0 0 7 . D o w n lo a d e d fro m http://jme.bmj.com/ The implication of this argument is that healthcare allocation must be defended and criticised in terms of consideration that others, free and equal, have reasons to accept, given the fact of reasonable pluralism and on the assumption that those others are themselves committed to provide suitable justification.24 Citizens are entitled to make claims on one another by virtue of their status as citizens. This means that one needs to find reasons for just allocation that are compelling to all - accordingly motivated - regardless of their diverse commit- ments, natural attributes or social starting-points. Rejecting the backward-looking conception of individual responsibility In my view, the luck-egalitarian underpinnings of the back- ward-looking responsibility conception fail to appreciate this concern. It is simply not reasonable that the distinction between choices and circumstances have fundamental impor- tance for questions of how to ration scarce healthcare resources as in the case of obesity. The explanation is that the ‘‘irresponsible’’ minority can hardly assure itself that the preferences of the ‘‘responsible’’ majority rests on the kind of reason that even the minority must acknowledge as appro- priate. Let me give two examples (that resemble the criticism against luck-egalitarianism made as point two and four described above). The backward-looking responsibility conception tells us to find a way to split compensation between people according to which extent they can be held properly responsible for their choices. The diversion requires an explanation of what is to count as choice and what is to count as circumstance that must be acceptable to all. In the literature, there is vast disagreement on where to draw the line.20 What appears to be difficult in ideal theory is even more so in the context of healthcare where social and economic inequalities are very important in determining health expectancies. Obesity is not evenly distributed across the population. As Brian Barry has pointed out, poverty, class and income are key-determinates of obesity and weight-related disease.25 It may not, then, be reasonable to hold that lifestyle choices are informed and deliberate in the way that ought to be conditions for personal responsibility. Likewise, the decision on how to classify persons according to moral desert must be acceptable to all. There are at least two reasons why this requirement may be difficult to meet. To put focus on the distinction between choice and circumstances may encourage the state to view its disadvantaged citizens with distrust, as potential cheaters.16 26 The obese patient may have to prove she suffers from an involuntary disadvantage and answer questions about her own life as well as her family background that may be intrusive. One example is that she may be asked to submit to genetic testing, which may reveal information she (and her relatives) prefers to remain in ignorance of. Further, the majority may be encouraged to make moralised judgments in order to classify persons according to the degree of irresponsibility of their choices of food and activity. Moral categories may then be used in a simplistic way which ignores the complexity of the situation.20 A forward-looking conception of individual responsibility Would it be altogether wrong to consider individual responsi- bility when allocating scarce healthcare resources? Let us assume a deliberation process identical to the one described above. Remember the liberal-contractualist argument that the minority ought to assure itself that the preferences of the majority rest on the kind of reason that even the minority must acknowledge appropriate. This could mean to give priority to the worst off but only if significant health benefit is expected and treatment is cost-effective. Then the concept of medical need is interpreted according to both the pre-allocative and the expected post-allocative level of health.27 Even if this middle range priority position is indeterminate, I find it compelling. The reason is that it incorporates the concern for the most vulnerable without sacrificing greater health benefits to others.28 Giving priority to the most urgent cases without concern with efficacious use of limited resources may avoid abandonment of critically ill patients (which is likely to happen if maximising health benefit is all that matters) but only to the expense of the opportunities of health improvements of others. Accordingly, the consideration of individual responsibility would not be relevant when deciding whether or not i1 should be part of public healthcare. If obesity is (rightly) regarded as a significant predictor of severe illness and premature death and treatment is scientifically proven to be effective and cost- effective, treatment of obesity should be provided within public healthcare. But when we ask if an obese patient suffering from x should accept a longer wait than a normal-weight person to get access to elective medical intervention i2, I think the notion of individual responsibility may come into play. To see how, we must return to the criteria of priority setting. Severely ill patients who are likely to respond well to treatment (within given resource constraints) should, under the specified understanding of medical need, be given priority over patients less likely to benefit. Several factors may reduce expected benefit of treatment. While the individual has little or no power to influence some of these factors, she may be in a position to improve others. Factors attributed to lifestyle are among the latter. If the obese patient suffering from x does not change her lifestyle, then expected benefit from intervention i2 decreases and the patient will be given lower priority on the waiting list. TM Scanlon has argued that it seems that when a person has had an opportunity to avoid a certain outcome by choosing appropriately, this fact weakens her grounds for rejecting a principle that would make her bear the burden of that result. What matters is the value of the opportunity to choose that the person is presented with.15 I suggest that the obese patient suffering from x should be asked to sign a contract of frequent medical follow-ups to help her lose weight (in the same token as smokers with chronic obstructive lung disease should be asked to get medical advice on how to quit smoking and alcohol abusers with liver disease on how to stop drinking). If the patient refuses, then she cannot reasonably complain to be given lower priority on the waiting list. The point is not, then, to assess whether or not it would have been obtainable for one in the patient’s circumstances to make greater effort to get a healthy lifestyle in the past. She may or may not have had less opportunity than others not to make bad choices. Rather, the point is that when resources are limited we owe it each other to do what we can to make medical treatment efficacious. A priority scheme which includes the specified notion of responsibility may have unintended secondary consequences.27 Priority should be given according to the criteria of severity of disease and expected benefit of treatment. By giving lower priority to patients who are not expected to respond well to treatment due to continuous unhealthy lifestyle, the scheme Law, ethics and medicine J Med Ethics 2008;34:33–36. doi:10.1136/jme.2006.019067 35 o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 0 0 6 .0 1 9 0 6 7 o n 2 1 D e ce m b e r 2 0 0 7 . D o w n lo a d e d fro m http://jme.bmj.com/ may also have the secondary effect of systematically giving patients from low social status-groups low priority because unhealthy lifestyle is associated with low social status. But this would be the case only if patients from low social status groups tend to refuse to sign the contract more often than others. We might say that the patient refuses to sign the contract because she does not really know what she is doing and that an unwillingness to comply should not be given weight when setting priorities. But this argument treats the patient as a less than an autonomous being. Given that respect for the autonomous choices of patients runs deep in modern health- care, there are strong reasons to value the claim that competent and well-informed individuals are the best interpreters of their own interest and that they should be free to make choices others would regard as non-beneficial to them.29 Of course, the contract may be broken and the priority decision may repeat itself, or the patient may not maintain her behaviour changes. These facts do not imply that further treatment (if necessary) should be denied. But others may simply have stronger claims on assistance. Thus, the forward- looking concept of responsibility described here is rather thin. It explains why responsibility-oriented arguments may be justified in a priority-setting context but it does not support the conclusion that people should be held substantively responsible for previous choices. Would this interpretation of the responsibility principle reproduce the problems rendering luck-egalitarian approaches unjust? I think not. First, rather than serve as a basis for just priority setting, the interpretation of the principle of responsi- bility is derived from a specific understanding of how to distribute healthcare. Second, we do not have to rely on a choice-circumstance binary to specify which inequalities are acceptable and which are not. Third, the fact that the individual’s medical need can be traced down to bad lifestyle does not imply that she should be denied healthcare. And fourth, I do not think it disrespectful to ask the individual to do what she can to change an unhealthy lifestyle to make treatment efficacious. Some may argue that it is unfair to add a burden upon those in medical need by asking them to sign a contract of medical follow-ups. The very question may even hurt the patient’s feelings, because one implicitly explains the disease with a reference to lifestyle. I do not, however, find these arguments strong enough to abandon individual respon- sibility-based arguments when estimating expected benefit of treatment. When deciding on the terms on which we want to live with one another, it is reasonable to expect people to make do with their fair shares. These are difficult issues, and I cannot discuss them further here. I have, however, provided a case for the claim that a forward-looking conception of individual responsibility may be approved. CONCLUDING REMARKS The liberal-contractual proposal for how to design deliberation to which persons are entitled to hold one another accountable about healthcare rationing puts constraints on the set of considerations that should be placed on the table when we ask how to allocate healthcare resources. As Norman Daniels has pointed out, what is important is to protect fair opportunity to participate in society and exert citizenship by meeting people’s medical needs within resource constraints.30 The question of justice within healthcare does not, then, concern the neutralisation of luck. Responsibility-based argu- ments may come into play, but only in a forward-looking version. Acknowledgements: Earlier drafts of this article have been presented at the workshop on Equality of Opportunity, ECPR Joint Sessions, Granada 2005, and at the workshop on Priority Setting in Global Health, University of Bergen, 2005. Thanks to all the participants. The article also benefited from comments of several friends and colleagues, among them Alexander Cappelen, Robert Huseby, Raino Malnes, and Ole Fr. Norheim. Thanks to Pierre Boitte and especially to Bob Brecher. Funding: The work for this article was made possible by a postdoctoral research grant from the Research Council of Norway. Competing interests: None declared. REFERENCES 1. Cappelen A, Norheim OF. Responsibility in health care - a liberal egalitarian approach. J Med Ethics 2005;31:476–80. 2. World Health Organization. The world health report: reducing risks, promoting healthy life. Geneva: WHO, 2002. 3. Anderson ES. What Is the Point of Equality? Ethics 1999;109:287–337. 4. Arneson R. Equality of Opportunity for Welfare. Philosophical Studies 1989;56:77– 93. 5. Cohen GA. On the Currency of Egalitarian Justice. Ethics 1989;99:906–44. 6. Roemer J. Equality of opportunity. Cambridge, MA: Harvard University Press, 1998. 7. Arneson R. Luck Egalitarianism and Prioritarianism. Ethics 2000;110:339–49. Cf. Temkin L. Inequality. New York: Oxford University Press, 1993. 8. Miller J, Rosenbloom A, Silverstein J. Childhood Obesity. J Clin Endocrinol Metab 2004;89:4211–18. 9. Mello MM, Studdert DM, Brennan T. Obesity – The New Frontier of Public Health Law. N Engl J Med 2006;354:2601–10. 10. Miller WC. How effective are traditional dietary and exercise interventions for weight loss? Med Sci Sports Exerc 1999;31:1129–34. 11. Wing RR, Tate DF, Gorin AA, et al. A Self-Regulation Program for Maintenance of Weight Loss. N Engl J Med 2006;335:1563–71. 12. Takeharu K, Atsushi K, Hisamichi A. Obesity and Public Health Law. N Engl J Med 2006;354:1283. 13. Vallentyne P. Brute Luck, Option Luck, and Equality of Initial Opportunities. Ethics 2002;112:529–57. 14. Sandbu M. On Dworkin’s brute-luck-option-luck distinction and the consistency of brute-luck egalitarianism. Politics, philosophy & economics 2004;3:283–312. 15. Scanlon TM. What We Owe to Each Other. Cambridge MA: Harvard University Press, 1998. 16. Wolf J. Fairness, Respect, and the Egalitarian Ethos. Philosophy & Public Affairs 1998;27:97–122. 17. Mason A. Equality, personal responsibility and gender socialization. Proceedings of the Aristotelian Society 2000;100:227–46. 18. Hurley S. Roemer on Responsibility and Equality. Law and Philosophy 2002;21:39– 64. 19. Scheffler S. What is Egalitarianism? Philosophy & Public Affairs 2003;31:5–39. 20. Scheffler S. Choice, circumstance, and the value of equality. Politics, philosophy & economics 2005;4:5–28. 21. Phillips A. ‘‘Really’’ Equal: Opportunities and Autonomy. The Journal of Political Philosophy 2006;14:18–32. 22. Rawls J. Justice as Fairness. A restatement. Cambridge, Mass: Harvard University Press, 2001. 23. Daniels N. Just Health Care. Cambridge: Cambridge University Press,1985. 24. Cohen J. Democracy and Liberty. In: Elster J (ed).Deliberative Democracy. Cambridge: Cambridge University Press, 1998. 25. Barry B. Why Social Justice Matters. Cambridge, UK: Polity Press, 2005. 26. Kymlicka W. Contemporary Political Philosophy. An Introduction. Oxford: Oxford University Press, 2002. 27. Elster J. Local Justice. How Institutions Allocate Scarce Goods and Necessary Burdens.New York: Russel Sage Foundations, 1992. 28. Daniels N, Sabin JE. Setting Limits Fairly: Can We Learn to Share Medical Resources? New York: Oxford University Press, 2002. 29. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. New York: Oxford University Press, 1994. 30. Daniels N. Justice, Health, and Healthcare. The American Journal of Bioethics 2001;1:2–16. Law, ethics and medicine 36 J Med Ethics 2008;34:33–36. doi:10.1136/jme.2006.019067 o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 0 0 6 .0 1 9 0 6 7 o n 2 1 D e ce m b e r 2 0 0 7 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_6wjrvbztezdc7iui2ojyr2di5i	----	Middlesex University Research Repository An open access repository of Middlesex University research http://eprints.mdx.ac.uk Ruggiero, Vincenzo ORCID: https://orcid.org/0000-0002-4090-849X (2011) An abolitionist view of restorative justice. International Journal of Law, Crime and Justice, 39 (2) . pp. 100-110. ISSN 1756-0616 [Article] (doi:10.1016/j.ijlcj.2011.03.001) This version is available at: http://eprints.mdx.ac.uk/7831/ Copyright: Middlesex University Research Repository makes the University’s research available electronically. Copyright and moral rights to this work are retained by the author and/or other copyright owners unless otherwise stated. The work is supplied on the understanding that any use for commercial gain is strictly forbidden. A copy may be downloaded for personal, non-commercial, research or study without prior permission and without charge. Works, including theses and research projects, may not be reproduced in any format or medium, or extensive quotations taken from them, or their content changed in any way, without first obtaining permission in writing from the copyright holder(s). They may not be sold or exploited commercially in any format or medium without the prior written permission of the copyright holder(s). Full bibliographic details must be given when referring to, or quoting from full items including the author’s name, the title of the work, publication details where relevant (place, publisher, date), pag- ination, and for theses or dissertations the awarding institution, the degree type awarded, and the date of the award. If you believe that any material held in the repository infringes copyright law, please contact the Repository Team at Middlesex University via the following email address: eprints@mdx.ac.uk The item will be removed from the repository while any claim is being investigated. See also repository copyright: re-use policy: http://eprints.mdx.ac.uk/policies.html#copy http://eprints.mdx.ac.uk http://eprints.mdx.ac.uk/7831/ mailto:eprints@mdx.ac.uk http://eprints.mdx.ac.uk/policies.html#copy 1 An Abolitionist View of Restorative Justice Vincenzo Ruggiero Professor of Sociology, Middlesex University, London Abstract: Penal abolitionism is known for its unconventional analysis of crime, the law and punishment. Some critical views of restorative justice emerge when the alternatives to imprisonment advocated by abolitionists are examined. This paper discusses such views, highlighting their critique of professionalism and their emphasis on community conflict regulation. Keywords: abolitionism; restorative justice; professionalism; conflict regulation. Penal abolitionism is not merely a decarceration programme, but also an approach, a perspective, a methodology, and most of all a way of seeing. There is clearly an abolitionist element in the proposition that the state centralised administration of penal justice should be replaced by decentralised forms of autonomous conflict regulation. But in a general, concise, formulation it can be suggested that abolitionists advocate new ways of dealing with undesirable behaviour, and in doing so they situate themselves in an original position within the debate around restorative justice. If this is perhaps the major practical outcome, in terms of policy, with which abolitionist analysis can be associated, the specific components of their view on 2 restorative justice need to be spelled out. This is the task of the present paper (Bianchi, 1984, 1986, 1994; Christie, 1977, 1982, 1986a, 1986b, 1986c, 1993, 1996, 2004; Hulsman, 1982, 1986, 1991; Mathiesen, 1974, 1990, 2008; Ruggiero, 2010). Restitutive Sanctions Durkheim (1960: 111) associates restitutive sanctions to specific forms of social solidarity. What distinguishes such sanctions is that they are not expiatory, but consist, as he puts it, of means for reinstating the past. The social relationships regulated by the practice of restitution are quite different from those addressed by the repressive practices of the law. The former ‘unite the thing to the person’, while the latter ‘link persons among themselves’. Durkheim notes, in other words, that reconciliation may re-establish the relationships of individuals with their property rather than those with society at large. The image of society underpinning reconciliation and restitution is one of ‘an immense constellation where each star moves in its orbit without concern for the movements of neighbouring stars’. In such constellation solidarity does not make its components act together and contributes very little to ‘the unity of the social body’ (ibid: 116-117). Restitutive sanctions, therefore, do not ‘attach different parts of society to one another’; on the contrary, they clearly mark the barriers separating the different parts, doing nothing to create positive social links: ‘this is not a true solidarity’ (ibid: 119). Durkheim expresses views that echo some of the contemporary controversial concepts found in the debate around restorative justice. Restorative justice may be essentially defined as a process bringing the actors and communities affected by a problematic situation back into the condition in which the 3 problem arose. This model of justice implies that the parties involved decide how to deal with a conflict and how to neutralise its collective impact (Marshall, 1996). Restorative justice presents itself as an international network or movement, giving the impression that its tenets are diametrically opposed to those inspiring conventional retributive justice (Casey, 1999; Pollard, 2000; McLaughlin et al, 2003). Against such claim abolitionists are not alone in maintaining a critical stance (Williams, 2005). Participatory Disputes According to Hulsman (1991: 32), if we want to make progress in the efforts to create alternatives to custody, we have to abandon the cultural and social organisation of criminal justice. ‘Criminal justice is perpetrator-oriented, based on blame-allocation and on a last-judgement view on the world’. It therefore does not provide us with the necessary information relating to disputes, nor does it transform contexts in a way that emancipatory manners of dealing with disputes can be identified. First, an abolitionist approach is oriented towards those directly involved, namely persons or groups who directly experience unpleasant events, an approach leading to the discovery of the resources which could be mobilised to deal with such events and situations. Second, abolitionism must radically critique the idea that the extremely diverse situations currently criminalised possess something in common. The label ‘crime’ is attached to all kinds of different problems, which should be tackled by a variety of preventive measures. ‘To use punishment on all of them is comparable to treating all kinds of illness with leeches’ (Wright, 2008: 242). Each problem or event is characterised by its own contours and features, and information about these is a precondition for different understandings of the acts observed and the practical responses to them. On 4 the other hand, in order to design effective strategies of abolition and to project workable alternatives, Hulsman (1991: 35) intimates that ‘we need to agree on what we are opposing’. What we face now, in most societies, is a state-run organisation possessing the monopoly to define criminal behaviour, to prosecute that behaviour and to keep chosen individuals in confinement. This organisation, which is intended to protect society from those individuals, in reality, fails to accomplish what it promises. There are several procedures that can be used in dealing with trouble. Dumping is one of then, when the issue that gives rise to a disagreement is simply ignored and the relationship with the disagreeing person continues. Exit is another, an option that consists of withdrawing from the unpleasant situation and terminating the relationship with the other party. Then there may be negotiation, when the two parties attempt to settle the matter by identifying the rules that should govern their relationship. Mediation is yet another option, which involves the participation of a third party asked to help find an agreement. With arbitration, instead, the parties appoint a third actor and agree in advance to accept her judgement. With adjudication, finally, a third authority intervenes whether or not the two parties require so (Nader and Todd, 1978; Hulsman, 1986). Among these procedures abolitionists opt for those in which participants in conflicts are not constrained by the requirements of organisations or professionals. Flexibility, in this respect, is desirable, as it allows common meanings to emerge while giving the parties a possibility to learn about each other. Hulsman argues that flexibility is exactly what is lacking in conventional criminal justice, because situations are dealt with in highly formalised contexts, where definitions of issues and responses to them are limited, and it is unlikely that they correspond to those the parties involved would 5 elaborate. In brief, in his view, ‘trouble’ is to be turned into a participatory dispute by those experiencing it. Crime itself is a participatory dispute, and in abolitionist thought has to be defined in terms of tort. According to Bianchi (1986: 116), abolitionist purposes do not require that an entirely new system of rules be devised. ‘We already have one, waiting to be applied and adapted’. Lawyers and jurists, in this sense, are natural allies of the abolitionists, since they are capable, and hopefully willing, ‘to develop new concepts of tort which would be suitable for the regulation of crime conflicts, and rules for the settlement of disputes arising from what we used to call crime’. Bianchi appeals to psychologists, psychiatrists and social workers, calling for their skills to be adapted and rewritten in ways fit for conflict-regulation. ‘The new system would no longer be called criminal law but reparative law’, and would engage offenders in discussions around the harm caused and how it can be repaired (ibid). Offenders would be debtors: ‘Guilt and culpability should be replaced by debt, liability and responsibility’ (Bianchi, 1994: xi). It is among the contentions of abolitionists that an entirely different system of crime control, including restorative forms of justice, necessitates entirely new linguistic terms, in order to prevent conventional reasoning from creeping in. To make a new system of conflict resolution stand out against the conventional punitive system, Bianchi introduces one such term, eunomic. This adjective is opposed to anomic and alienating which denote the nature of the official criminal justice system, and which frustrate the main participants in a conflict; the new system would be mainly composed of a set of integrative rules offering opportunities to all participants (Bianchi, 1994). This argument takes inspiration from Roman Law, whose eunomic nature is epitomised by the central role played in it by restitution. The very Latin word 6 poena (from which both pain and punishment derive) refers less to the type or intensity of the punishment to be inflicted than to the obligation to compensate the victim. Before its modern translation into physical pain, poena alludes to the penalty to be paid directly to the injured party, rather than to the vengeful sufferance inflicted by the state. Even the original meaning of the Latin verb punire is ‘see to it that the duty of poena be fulfilled’, for an offender could usually buy off revengeful punishment by settling the compensation. Knowledge, Proximity and Dialogue If the official criminal justice system lacks libido sciendi, a passion for knowledge, the alternatives to punishment devised by abolitionism are designed with the purpose of producing that knowledge and collate information about actors involved in conflicts. Consequently, the forms of restorative justice criticised by abolitionism are those which, physically and metaphorically, are distant from the settings where conflicts take place. Professionalism attracts particularly vehement criticism. The enormous expansion in the number of professionals trained for dealing with other people’s behavioural problems has created a range of functionaries, ‘most of them working in bureaucracies, from nine to four, with short encounters with clients’. Such professionals will not experience the consequences of their decisions; after work ‘they will drive home to the suburbs, to partners and children and dogs’ (Christie, 1982: 67-68). Their power consists of their alleged capacity to respond to conflicts, reduce their effects and prevent future conflicts from erupting. In order to control that power, Christie argues, those wielding it are to be made vulnerable, a task that can be achieved if they are denied the specificity of their qualifications and the peculiarity of 7 their status, and ultimately if they are required to live emotionally and physically in proximity to the situations with which they deal. Professionals who do not share the settings of conflicts seem to be convinced that all conflicts are to be solved or managed. Abolitionism talks about conflict-handling, or ‘conflict participation’, regarded as more promising, in concrete social interactions, than solutions. ‘Conflicts are not necessarily a bad thing. They can also be seen as something of value, a commodity not to be wasted. Conflicts are not in abundance in a modern society: they are a scarcity. They are in danger of being lost, or often stolen. The victim in a criminal case is a sort of double loser: first vis-à-vis the offender, secondly vis-à-vis the state. He is excluded from any participation in his own conflict.’ (ibid: 93). This appreciation of conflict reminds one of Simmel’s (1950) argument that attraction and repulsion are the core elements of socialisation, and that degrees of both contribute to processes of unification. Abolitionism translates this argument into a description of crime as a communicative act, expressive conduct, ‘a clumsy attempt to say something’. Hence the suggestion that crime should ‘become a starting point for a real dialogue, and not for an equally clumsy answer in the form of a spoonful of pain’ (Christie, 1982: 11). Existing systems, with their professional division of roles, hamper dialogue, allowing for many acts to be perceived as crime. Alternative systems, therefore, should be arranged so that the same acts are more easily seen as expressions of conflicting interests. ‘To reduce man-inflicted pain, one should encourage the construction of the latter type of systems’ (ibid). 8 Dialogue encouraged by proximity is a key strategy suggested by abolitionists with a view to producing knowledge about problematic situations. In this respect, it is worthwhile to follow Christie’s argument in a clarifying example. Let us imagine a computer deciding on guilt and delivering sentences. If correctly programmed, the computer will reach infallible decisions. ‘After guilt was decided, nobody would need to attend before the judge to listen to his decisions if they themselves had some mini- computers at their disposal. This means that chance is taken away from court- decisions’ (Christie, 1982: 54). There is, however, another possibility, namely the re- programming of the computer, a circumstance which would show how imperfect the decision-making technology may be. What are the variables that would be given priority weight? And most importantly, who would decide exactly what input is to be inserted into the system? The following are some possibilities: ‘The UN in the General Assembly; the UN in the Crime Committee; regional bodies such as the European Council or the Union of the Arab States; national parliaments; regional authorities; a random sample of the population questioned through the telephone or personal interviews; a sample from the municipality of the victim or the offender; a totality of those close to the victim or the offender; or decisions could be made by the victim and the offender in cooperation’ (Christie, 1982: 55-56) Proceeding from top to bottom, the various actors listed above, all hypothetically able to provide input to our sentencing computer, possess increasing familiarity and proximity with the parties involved in the conflict. With the last option, however, we are faced with the maximum degree of proximity, and it is with this option that our 9 computer would become totally redundant, as the parties concerned could talk directly to each other. Knowledge acquired by professionals differs from that informing interactions in lived experience, in the subterranean pattern of information shared within communities. It is plausible to assume that the quantity and nature of information held by members of a group will make sweeping concepts such as ‘crime’ needless to that group. This will be determined less by the size of the group than by the intensity of the common history the group shares. Small societies with little shared history and limited mutual knowledge and information about members will express demands for behaviour uniformity. For example, ‘dormitory towns’ will tend to turn the lack of interactions among its inhabitants and the absence of a common history among them into simplistic definitions of the others and their actions. It is against such aggregations of strangers that powerful, distant, institutions deliver pain. ‘Intentional infliction of pain is easier the further away the recipient is from the delivery-man’ (ibid: 83). Victims It has been suggested that restorative justice, by encouraging encounters between parties involved in conflict, benefits the victim’s mental health by reducing post- traumatic stress symptoms (Strang, 2002; Braithwaite, 2007). Abolitionism holds a different view on the subject matter: victims can be victimised by conventional victimology itself. In other words, they can become the victims of the stereotypes imposed upon them. These stereotypes relate to their alleged incapacity to defend themselves, but also to their inability to define themselves as victims, the condition of 10 victim being granted by others despite them. Subsequently, those victimised by conventional victimology are regarded and treated as objects of tutelage, as ‘judicial goods’ who are required not to interfere with the situation in which they act. They are requested to entrust their inviolability to external agencies which are normally structured to reproduce principles of dependency and delegation, rather than principles of autonomy. While conventional victimology and conventional restorative justice, therefore, may use victims’ participation as a tool for the strengthening of the penal system, resulting in ‘increased fear of crime, daily demands for stiffer sentences, and a steep increase in levels of criminological nonsense’ (Carlen, 1996: 53), abolitionism combines victims’ participation with non-penal measures, informality, negotiation and community involvement. Compensation as devised by abolitionists, for example, is not based on abstract variables such as judicial truth, guilt or dangerousness, but on the responsibilities of the offenders, the victims, the community as a whole, and on their respective needs. In this exercise of justice there are no winning or losing contestants, as all are involved in a healing process aimed at satisfying the basic requirement for collective wellbeing and safety. The solution proposed by Christie (1982: 84-85) is that ‘those given the task of handling the conflict are not given power’, but play a mediatory role, like ‘the dwarf at the royal court’ who was so powerless and ‘small that he was unusually well suited as a go-between’; or as a child who can at times take on a similar role in a family conflict. In brief, such figures should act as independent third parties and would be ‘asked to help, but not given authority to enforce, and with no possibility of personal gain related to the outcome of the conflict’ (ibid). Restorative justice in the abolitionist perspective is not aimed at ‘restoring’ the situation preceding the conflict, but at clarifying values during the course of its exercise: ‘The clarification of values is 11 accomplished in the process itself. Attention is moved away from the end-result to the process’ (ibid: 94). We must concede that abolitionism occupies a highly original position within the influential victims’ movement which developed since the 1970s. While victims of crime have long lamented the failure of the criminal justice system to keep them informed, and campaigns have targeted the arbitrary distinction between deserving and undeserving victims, institutional responses have been confined to the provision of governmentally centralised compensation schemes. In this way, victims become increasingly characterised as users, clients or consumers; and in some circumstances they are even given the privilege to attend the execution of those who victimised them (Rock, 2004; Williams, 2005). Abolitionists reject such consumerist logic, regarding it as an aspect of ‘industrialised justice’ in which distant authorities keep playing a key role in responding to problems. The participatory model they advocate puts institutional agencies out of the limelight, in their reparatory as well as their adjudicative functions. On the other hand, the victims’ movement has also been concerned with forms of conflict resolution that, initially tailored for the needs of the victims, in practice have turned out to be mainly designed for the welfare of offenders. In this way, the discovery of the victims, in reality, is alleged to have provided a good pretext for reformers to espouse increasingly lenient treatment for victimisers. A ‘good deal for offenders’ is therefore assumed to be the outcome of victim-focused justice, ‘a back door to the introduction of more humane treatment of offenders in a predominantly retributive system’ (Williams, 2005: 60). This controversial point leads us to another aspect of the debate around restorative justice, namely the extent to which this model of justice is victim-led or offender-led. It is the task of abolitionists to supersede this distinction. 12 Making Amends One of the controversies surrounding restorative justice centres on the reluctance of victims to participate in schemes which they suspect are geared to the interests of other parties rather than their own. Once they realise that an offender-approach is predominant, they comfortably return to the view that the only agency able to deal with offenders is the police force. Abolitionists outflank this controversy by embracing a different informal justice philosophy and practice. For Hulsman (1982), for example, the offender-victim dichotomy should be superseded by a view of crime as ‘natural disaster’, namely an event that requires solidarity mobilisation for those affected and efforts to prevent similar events from reoccurring. Natural disasters, though in a smaller scale, are likened to ‘trouble’, defined as situations in which people do not share a sense of how life is and should be structured, and where the lack of common perceptions results in conflict over ways of thinking, feeling and acting (Pfohl, 1981). In order to minimise conflicts, individuals may attempt to prevent trouble, through ‘rituals of primary ordering’, thus thwarting events which deviate from the order they see governing their lives. Or they can enact ‘rituals of reordering’, when they manage to cope with trouble and come to terms with the fact that conflicts are part of life (Hulsman, 1986). The controversy about offender-led or victim-led restorative justice is also examined against the background of other considerations. For example, it is stressed that some ‘alternative’ justice practices extend rather than reduce the prevailing justice system. In an overview offered by Shonholtz (1986) an echo is found of abolitionist critique of professionalism: agency-mediation implies specific 13 institutional actors such as prosecutors or the police applying specific mediation programmes and procedures. This model is built around the power and interests of institutional agencies: case referrals are generally coerced, while disputant participation is often involuntary. In other words, the parties would not attend the mediation session without the agency’s pressure. ‘Since most, if not all, of these referrals represent matters that the justice agency would not pursue formally, the agency-mediation programme presents the classic “widening the net” phenomenon so often criticised by criminologists’ (ibid: 229). In brief, agency-mediation programmes are promoted not because they handle criminal referrals, but precisely because those referrals are not seen as legitimate criminal cases. Such programmes represent a direct extension of the justice system into the non-criminal, or civil, arenas, and stem from the recognition that traditional sources of social control (the family, the church, the neighbourhood) are declining: the state enters non-state areas. ‘There is no attempt by the state to improve the ability or capacity of communities to manage their own conflicts through non-state mechanisms…. Thus the intention of agency-mediation programmes is to provide another layer of state-sponsored social control beyond the direct application of traditional justice theory or practice’ (ibid: 230). On the contrary, mediation promoted by community boards, as advocated by abolitionists, follows a voluntary referral model and is characterised by a community- centred rationale. The model urges the commitment of social resources and the revival of collective responsibility. It aims less at the suppression of conflict than at its early expression and potential resolution. It links the justice process to community forums 14 led by the residents’ need to organise local conflict-resolution mechanisms. It sees the development and maintenance of community justice forums as a democratic right and responsibility of citizens. Moreover, this model relies on residents trained in value- building, communication, and conciliation skills; panel sessions are open so that all are given the opportunity to develop such skills. Although institutional (or agency) mediation may help dilute the crime control system and act as a stimulant to local neighbourhoods, in the abolitionist perspective it may also lead to unwanted developments. For example, it may paradoxically revitalise the penal system, turning into ‘swift punishment without formalities’. It may increase control through the incorporation of a treatment ideology: punishment ends up becoming acceptable when disguised behind the notion of treatment (Christie, 1996). Or simply, it may weaken social competence, transferring problems to official actors. Individuals are de-skilled and made dependent upon external, state-funded or state-licensed entities. This brings to light another moot point within the restorative justice debate. Most programmes controlled by the state are regarded as suitable for co-option into the criminal justice status quo, with the community concerned taking on a subservient role. State intervention exacerbates the role of institutions as dumping ground for ‘people suffering from a wide range of human miseries’, it transfers to professionals the community ownership of miseries and problems (McKnight, 1995). In this way, ‘the criminal justice system compensates for the failings of economic, political, or social systems, which consequently deters the reform of these systems by removing people from open society who are its products’ (Elliott, 2009: 156). The community, thus, becomes an amorphous ideal, an acquiescent aggregation of citizens perfectly aligned with state agencies (Pavlich, 2005). Restorative justice focused on 15 community development, instead, ‘is less concerned with meeting the needs of institutions than it is with meeting the needs of the people involved in, and affected by, conflicts’ (Elliott, 2009: 164). Conflicts, therefore, should be seen as opportunities for establishing dialogue and seeking solutions, in a process leading to wider relationships and wider mutual knowledge. By placing the conflict within the skills and competency of trained community people, many of whom former disputants, mediation enacted by community forums or boards is able to place responsibility for the expression and resolution of the conflict on the disputants. ‘Moreover, the forum is the community’s statement of its capacity and confidence to accept responsibility for handling conflicts at the neighbourhood level. The voluntary resolution of conflict between disputants is advanced as a positive value… Voluntary resolutions are, first and foremost, a positive statement between the disputants about themselves, each other, and the situation’ (Shonholtz, 1986: 233-4). Shaming and Peace When abolitionists support voluntary resolution of conflict, they implicitly distance themselves from to the logic of reintegrative shaming, an ambivalent notion that raises enthusiasm and criticism in equal measure. According to Braithwaite (1989), shaming is more effective than conventional punishment in that it is not administered by a specific agency or institution, but involves the participation of a whole community. For the conscience-building effects of shaming to be produced, in fact, community-wide mobilisation is necessary. Children may learn about the evil of 16 murder and theft in an abstract manner, ‘but the shaming of the local offender known personally to children in the neighbourhood is especially important, because the wrongdoing and the shaming are so vivid as to have a lasting impression’ (ibid: 77). Regarded as akin to Etzioni’s (2001) communitarianism, this position has been the target of criticism for its implying a ‘monochrome society’ in which people identify one another with what they have in common rather than with what divides them. In such a society the loss of shared social and legal boundaries amounts to the decline of the policing force expressed by shame (Massaro, 1997). The revival of shaming punishment ‘as a way of expressing and reinforcing shared moral values’ is therefore recommended (Nussbaum, 2004: 175). Like the branding of the criminals in previous epochs, the shaming of offenders might take the form of a sign worn on their property, clothes or face. ‘I am a thief’ printed on a teenager’s T-shirt could be one example of shaming, although its integrative function remains to be proven. There are, however, different ways of applying the concept of communitarianism to criminal justice issues. In a theory of social order expressed by Cordella (1996), for example, conformity is determined by three distinct ‘unity patterns’ related to as many types of operational moralities. An ‘atomistic unity pattern’ guides individualism and opportunistic calculus, whereby those who conform do so for fear of retaliation. An ‘organic unity pattern’, which echoes Durkheimian categories, is enacted when individuals develop feelings of reciprocity due to the role and social rewards they enjoy in relation to similarly satisfied individuals. Finally, a ‘personal unity pattern’, which results from disinterested care for others and is engendered ‘by a common life and personal morality that is conciliatory with social harmony the primary goals’ (Richards, 2009: 115). While one may concur that the prevailing pattern in contemporary societies is the ‘atomistic unity pattern’, disagreement arises 17 as to the tools which may favour a shift from this to the other patterns. Can institutional shaming contribute to such shift, or is communitarian shaming better equipped for the task? The evangelical enthusiasm with which shaming in general has been received prompts a qualifying distinction. We have reintegrative shaming and disintegrative shaming or stigmatisation. The former expresses collective disapproval, which may range from ‘mild rebuke to degradation ceremonies’ followed by ‘gestures of reacceptance into the community of law-abiding citizens’. The deviant is thus decertified or de-labelled. In contrast, disintegrative shaming divides the community by creating a class of outcasts, whose only source of respect will be other similarly ‘shamed’ individuals and groups. ‘Much effort is directed at labelling deviance, while little attention is paid to de-labelling, to signifying forgiveness and reintegration, to ensuring that the deviance label is applied to the behaviour rather than the person, and that this is done under the assumption that the disapproved behaviour is transient, performed by an essentially good person’ (Braithwaite, 1989: 55). There is no space for either integrative or disintegrative shaming in abolitionist analysis. Integration, rather, is achieved through communal means with the involvement of actors who are devoid of the power to shame and do not supinely lend themselves to be shamed. For example, in his support of community boards, Hulsman (1982) stresses the importance of the training of local residents in conflict resolution. Local mediators, in his view, should listen to the parties separately, and prepare a resolution of compromise on the basis of what they have heard. This is then submitted 18 to those concerned in the conflict and amended until it is eventually accepted by all. Mediators, or conciliators, according to this model, are not required to resolve conflicts, rather, they are trained to help people acknowledge by themselves the nature of their conflicts, learn to listen to and understand one another. Community boards have also a hidden merit: because any given person should not be allowed to sit on one such board for longer than two years, slowly the situation will be reached where most local residents have been mediators or conciliators. With time, the whole community will become more ‘conciliatory’. Conclusion It is hard to establish to what extent abolitionist ideas have contributed to the increasing interest in non-penal measures. The timid and desultory processes of decarceration and decriminalisation that we have witnessed over the last decades may include abolitionist elements, particularly when accompanied by non institutional mediation, direct discussion between parties, and restitution or reparation of the damage caused. This, according to Christie (1986b: 104), may have reduced the state monopoly in inflicting pain, helped circulate ‘a set of ideas intended to reduce suffering, and increased positive responses and basic trust in ordinary human beings’. However, abolitionists share the view, recorded above, that non penal measures run the risk of being co-opted back by institutional actors; for example, mediation boards may become bureaucratised and ‘board-administrators might be temped to take on cases of shoplifting: they are mostly easy to handle and look good in the statistics’. Even compensation may turn into life-long debt for some offenders, while board members themselves may quite conventionally ‘share the common indignation when 19 children and young people misbehave’. Moreover, some offenders may find compensation more daunting than a traditional suspended sentence. Finally, boards may be ‘under the Ministry of Justice, a ministry accustomed to thinking in categories of utility and efficiency’ (Christie, 1996:198). In this paper the view of abolitionists on restorative justice has been presented, and their emphasis on community, rather than agency, conflict resolution has been discussed. Some forms of restorative justice, in the abolitionist critique, may discourage voluntary or lay members from joining mediation or reparation boards, because they may be viewed as mere ministerial emanations aimed at turning the initial community-led motivation of members into a profession. Returning to Durkheim’s concerns highlighted at the beginning, abolitionists seem aware that non-penal measures based on reparation and compensation may instil respect for the rules of the market rather than for other human beings. This, however, happens when abolitionist elements become institutionalised in official professional set ups. In such cases, members of mediation boards are converted into civil servants. The danger of institutionalisation, therefore, may be averted if the principles of ‘industrialised justice’ (as Christie calls it) are rejected, and a peaceful reactivation of community dynamics is pursued through participation. This would imply a fourfold solidarity: ‘for the people being sentenced, for their victims, for the community as a whole, and for those who guarantee the functioning of the penal system, who would feel happily liberated if they could stop working for the survival of such a machinery’ (Hulsman, 1986: 123). Durkheim’s observation that restitution ‘is not true solidarity’, because it restores relationships between individuals and things rather than between individuals, certainly applies to the model of ‘industrialised justice’, where organic solidarity is based on abstract division of labour, distance between roles and 20 anonymity of crowds. Professionalism exacerbates all of this, hampering the development of mutual dependence among individuals, whose experience of conflict is translated into agency routine. Response to crime, all too often, remains the remit of ‘experts in conflict’ rather than the arena for discussion among those experiencing it. Experts, inevitably, feel that they have to bring salvation and that their profession consists of a ‘fight’; consequently they may be led to acquire skills suitable for ‘humanitarian wars’. By contrast, We should turn to experts on how to create peace. For criminologists in particular, peace researchers are probably some of the most valuable potential models, providing categories, methods, insights and organisational principles of great relevance’ (Christie, 1986c: 53). References Bianchi, H. (1984), ‘L’imagination prisonnière. L’agonie romantique de Gianbattista Piranesi: une des clefs pour mieux comprendre le surgissement de la Grande Incarcération’, Déviance et Société, VIII : 225-231. Bianchi, H. (1986), ‘Abolition: Assensus and Sanctuary’, in Bianchi, H. and van Swaaningen, R. (eds), Abolitionism: Towards a Non-Repressive Approach to Crime, Amsterdam: Free University Press. Bianchi, H. (1991), ‘Abolitionism in the Past, Present and Future’, in Lasocik, Z., Platek, M. and Rzeplinska, I. (eds), Abolitionism in History: On Another Way of Thinking, Warsaw: Institute of Social Prevention and Resocialisation, University of Warsaw. Bianchi, H. (1994), Justice as Sanctuary: Toward a New System of Crime Control, Bloomington and Indianapolis: Indiana University Press. Braithwaite, J. (1989), Crime, Shame and Reintegration, Cambridge: Cambridge University Press. Braithwaite, J. (2007), ‘Encourage Restorative Justice’, Criminology & Public Policy, 6 (4): 689-696. 21 Carlen, P. (1996), Jigsaw: A Political Criminology of Youth Homelessness, Buckingham: Open University Press. Casey, C. (1999), ‘Restoring the Faith’, Policing Today, March: 36-38. Christie, N. (1977), ‘Conflicts as Property’, The British Journal of Criminology, 17: 1-15. Christie, N. (1982), Limits to Pain, Oxford: Martin Robertson. Christie, N. (1986a), ‘Crime Control as Drama’, Journal of Law and Society, 13 (1): 1-8. Christie, N. (1986b), ‘Images of Man in Modern Penal Law’, Contemporary Crises, 10 (1): 95-106. Christie, N. (1986c), ‘Suitable Enemies’, in Bianchi, H. and van Swaaningen, R. (eds), Abolitionism: Towards a Non-Repressive Approach to Crime, Amsterdam: Free University Press. Christie, N. (1993), Crime Control as Industry: Towards Gulags, Western Style?, London: Routledge. Christie, N. (1996), ‘The Global Village, The Australian and New Zealand Journal of Criminology, 29: 195-199. Christie, N. (2004), A Suitable Amount of Crime, London and New York: Routledge. Durkheim, E. (1960), The Division of Labour in Society, Glencoe: The Free Press. Elliott, L. (2009), ‘A Geometry of Its Own: Restorative Justice, Relationships and Community in Democracy, in Ross, J.I. (ed), Cutting the Edge: Current Perspectives in Radical/Critical Criminology and Criminal Justice (Second Edition), Brunswick: Transaction. Etzioni, A. (2001), The Monochrome Society, Princeton: Princeton University Press. Hulsman, L. (1982), Peines perdues: le système pénal en question, Paris: Le Centurion (interview with J. Bernat de Célis). Hulsman, L. (1986), ‘Critical Criminology and the Concept of Crime’, Contemporary Crises, 10 (1): 63-80. Hulsman, L. (1991), ‘Alternatives to Criminal Justice: Decriminalization and Depenalization’, in Lasocik, Z., Platek, M. and Rzeplinska, I. (eds), Abolitionism in History: On Another Way of Thinking, Warsaw: Institute of Social Prevention and Resocialization. 22 Marshall, T. (1996), ‘The Evolution of Restorative Justice in Britain’, European Journal of Criminal Policy and Research, 4 (4): 21-43. Massaro, T. (1997), ‘Shame, Culture and American Criminal Law’, Michigan Law Review, 89: 1880-1942. Mathiesen, T. (1974), The Politics of Abolition: Essays in Political Action Theory, London: Martin Robertson. Mathiesen, T. (1990), Prison on Trial, London: Sage. Mathiesen, T. (2008), ‘The Abolitionist Stance’, plenary paper at the XII International Conference on Penal Abolition, Kings College, London, 23 July. McKnight, J. (1995), The Careless Society: Community and its Counterfeits, New York: Basic Books. McLaughlin, E., Fergusson, R., Hughes, G. and Westmarland, L. (eds) (2003), Restorative Justice: Critical Issues, London: Sage. Nader, L. and Todd, H.F. (eds) (1978), The Disputing Process: Law in Ten Societies, New York: Columbia University Press. Nussbaum, M. (2004), Hiding from Humanity: Disgust, Shame, and the Law, Princeton and Oxford: Princeton University Press. Pavlich, G. (2005), Governing Paradoxes of Restorative Justice, Portland: Glass House Press. Pfhol, S.J. (1981), ‘Labelling Criminals’, in Ross, H.L. (ed), Law and Deviance, Beverly Hills: Sage. Pollard, C. (2000), ‘Victims and the Criminal Justice System: A New Vision’, Criminal Law Review, 46: 5-17. Rock, P. (2004), Constructing Victims’ Rights: The Home Office, New Labour and Victims, Oxford: Oxford University Press. Ruggiero, V. (2010), Penal Abolitionism, Oxford: Oxford University Press. Shonholtz, R. (1986), ‘New Justice Theories and Practice’, in Bianchi, H. and van Swaaningen, R. (eds), Abolitionism: Towards a Non-Repressive Approach to Crime, Amsterdam: Free University Press. Simmel, G. (1950), The Sociology of Georg Simmel, New York: The Free Press. Strang, H. (2002), Repair or Revenge: Victims and Restorative Justice, Oxford: Oxford University Press. 23 Williams, B. (2005), Victims of Crime and Community Justice, London and Philadelphia: Jessica Kingsley. Wright, M. (2008), Making Good: Prisons, Punishment and Beyond (Second Edition), Hampshire: Waterside Press. 
work_6yaothgfyvexdp5dlw773h6zem	----	S P E C I A L P A P E R DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association 291 Social justice and the medical librarian* Elaine Russo Martin, FMLA See end of article for author’s affiliation. This lecture discusses social justice and the role that medical librarians can play in a democratic society. Social justice needs to be central to the mission of medical librarianship and a core value of the profession. Medical librarians must develop a new professional orientation: one that focuses on cultural awareness or cultural consciousness that goes beyond ourselves and our collections to that which focuses on the users of our libraries. We must develop a commitment to addressing the issues of societal, relevant health information. Using examples from medical education, this lecture makes the case for social justice librarianship. This lecture also presents a pathway for social justice medical librarianship, identifies fundamental roles and activities in these areas, and offers strategies for individual librarians, the Medical Library Association, and library schools for developing social justice education and outcomes. The lecture advocates for an understanding of and connection to social justice responsibilities for the medical library profession and ends with a call to go beyond understanding to action. The lecture emphasizes the lack of diversity in our profession and the importance of diversity and inclusion for achieving social justice. The lecture presents specific examples from some medical libraries to extend the social justice mindset and to direct outreach, collections, archives, and special collection services to expose previously hidden voices. If medical librarians are to remain relevant in the future, we must act to address the lack of diversity in our profession and use our information resources, spaces, and expertise to solve the relevant societal issues of today. INTRODUCTION I am truly honored to have been selected as the 2018 Janet Doe lecturer. Like the many Doe lecturers before me, being selected brings a host of mixed emotions, varying from amazement, joy, pleasure, and ultimately panic from the weight of the responsibility. The Janet Doe Lecture is an extensive examination of a topic related to health sciences librarianship. The topic is open ended, as long as the subject is under the very broad theme of philosophy or history. Like most of the Doe lecturers before me, I too am not a philosopher nor a historian. My career as a medical librarian has been a journey both literally and figuratively. I have worked on both coasts and in the middle of the country, deliberately relocating to accept more advanced leadership positions. I have outreach experience in three Regional Medical Library network offices: the Pacific Northwest, the Greater Midwest Region, and the New England * The Janet Doe Lecture on the history or philosophy of medical librarianship, presented at MLA ’18, the 118th Annual Meeting Medical Library Association, Inc.; Atlanta, GA; May 18–23, 2018. Julia Sollenberger, AHIP, FMLA, the 2017 Janet Doe lecturer, gave the introduction. Region (in these last two, I led those programs). A defining moment in my career was the opportunity I had to work outside the United States, specifically in Liberia. I started my library career as a library technician in a state medical society library and continued working in different support staff positions while attending library school part-time with the support of the Medical Library Association (MLA) Scholarship. My first professional job out of library school was as a reference/user education librarian, followed by administrative positions as a public services department head, an assistant director, then an associate director, and finally, a library director. The libraries in which I worked were in both private and public academic health sciences centers with a variety of health professional schools and affiliated hospitals. Because of this breadth of experience, the kinds of projects I have worked on, and the diversity of the communities in which I have worked, the 2 9 2 R u s s o M a r t i n DOI: dx.doi.org/10.5195/jmla.2019.712 Journal of the Medical Library Association 107 (3) July 2019 jmla.mlanet.org topic for this lecture came naturally to me. I did not, like many previous Doe lecturers, experience a long and agonizing road for a search for my topic. For me, it was quite the opposite. In fact, the topic chose me and seemed a natural fit. I fleetingly thought about and quickly dismissed discussing the work I have done and continue to do in promoting research data management as a fundamental new role for medical librarians or my project in public health information access and outreach, specifically my approach to providing real- time access to the literature for the public health workforce who have no affiliation with academic medical libraries. But I must confess my choice of topic comes from contemporary concerns about what is going on in our society today and is influenced by movements such as #BlackLivesMatter, #Metoo, #Enough, #Resistance, #NeverAgain, and #MarchforOurLives, and the proliferation of accepted terms such as “fake news” or “alternative facts.” When I started exploring social justice as my topic, I had some initial doubts as to whether or not I should go forward. I acknowledge that some librarians might feel uncomfortable with the topic and what is to follow. However, given what has gone on to threaten our country’s democratic values and principles, I am more convinced than ever that I had to discuss “Social Justice and the Medical Librarian.” I think most of us would agree that democracy in any country depends on an informed electorate with equal access to quality information, knowledge, and education. Therefore, by definition, the library profession is an integral part of democracy. Specifically, what we medical librarians do—making evidence-based health information available to those who need it in order to help patients, families, and caregivers make better patient-care decisions— connects us to democratic principles and ideals of equal access to information and health care. As Louis Brandeis, a former Supreme Court associate justice and “militant crusader for social justice,” asked and answered, “What are American ideals? They are the development of the individual for his own good and the common good; the development of the individual through liberty; and the attainment of the common good though democracy and social justice” [1]. In the United States, we have the means for such democratic ideals, but we have not lived up to the potential [2]. American democracy is in danger because of an increasingly ill-informed public who are easily manipulated with sound bites and Twitter rants that lead to the infringement on the rights of the poor, the disenfranchised, the underserved, immigrants, people of color, women, and the lesbian, gay, bisexual, trans, and queer (LGBTQ) community. With the continuing closures of hospital libraries and relentless budget cuts experienced by many academic medical libraries since 2008, coupled with the proliferation of many alternative options for accessing information, the need for medical librarians is being questioned, and our sheer numbers, ranks, and status are diminishing. If medical librarians are to survive as a distinct profession, then we must consider who we are as individuals, embrace our place as medical professionals in a democratic society, stand up for human rights and social justice, and assert our social responsibility. Few Doe lecturers have touched upon the roles of medical librarians in a democratic society. Henry Lemkau Jr., FMLA, in his 2007 Doe lecture, said, “Our lives are informed and given purpose by the influences that surround us,” and he discussed our profession “in the context of the social and cultural worlds in which we function” [3]. I suggest that this discussion has never been more important than it is today, given the times in which we live (mass deportations, children separated from their families at the border, no sustained solution for the Dreamers, and a government shutdown over the border wall). I would add to the discussion the context of the users, not just the professions, whom we serve. The importance of human values in medical librarianship was first highlighted by Martha Jane Zachert in her 1978 Doe lecture [4]. Previous to her, Doe lecturers defined the values of medical librarianship in terms of collection-building, self- image, organization and retrieval methods, and technological savvy. David Bishop’s definition of diversity, for example, only focused on specialization in the field of librarianship and did not touch on diversity with respect to populations [5]. But it was Zachert who wrote of developing new values for the medical library profession “related to man’s cognitive life and social, as well as to social and cultural institutions and the process of social change.” She identified professionalism as one of our most “enduring values...perhaps the keynote of our value system” [4]. In my view, professionalism goes beyond the tasks we do or what we call S o c i a l j u s t i c e a n d t h e m e d i c a l l i b r a r i a n 2 9 3 DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association ourselves, but rather embodies who we are and what we stand for [5]. For the most part, Doe lecturers have shied away from discussing politics and its effect on their topics or the medical library profession. Estelle Brodman was an exception with a somewhat lengthy discussion of the effect of Hitler’s Nazis, the Vietnam War, racism, and the perils of the “pursuit of power” over the “pursuit of excellence” [6]. The 1989 Doe lecture by Rachael K. Anderson, AHIP, FMLA, was the first to explore the factors that have influenced who has been able to enter our profession, with a particular focus on racial and gender discrimination [7]. Gerald Oppenheimer, in 1988, was most adamant about our profession looking outward and “concentrating on values…which are directed outward to the society in which we live and work” [8]. He went on to describe the debate in MLA between those who felt we should leave human rights to others and those who felt the association should take a more active role in democratic ideals. You may think given the title of my talk that it is also a political talk. Promoting equality and democratic ideals is not partisan. Rather, it is a talk about values and what Barack Obama named democracy with a small “d” [9]. It is a talk about social justice in our everyday work. It is a talk about how we can be relevant to the people we serve by providing information that improves everyone’s health, not just the privileged few. It is a talk about professionalism, and how we can incorporate and promote social justice into our profession, how we can become agents of societal change, and how we practice as medical librarians in the context of the times in which we live. DEFINING SOCIAL JUSTICE —Of all the forms of inequality, injustice in health care is the most shocking and inhumane. Martin Luther King [10] What do I mean then by social justice in the context of health care and medicine? While social justice and diversity are linked, social justice goes beyond representation. A term hard to define, social justice in medicine is: the open acknowledgement of the dignity and autonomy of and delivery of high-quality medical care, to all members of society, regardless of gender, race, ethnicity, religion, sexual orientation, language, geography, origin, or socioeconomic background. [11] It is the idea that health care employees work toward eliminating racial and ethnic disparities in health care [11]. The 2002 Institute of Medicine report, Unequal Treatment, first detailed a systematic examination of racial and ethnic disparities in health care. It clearly indicated that US racial and ethnic minorities were less likely to receive even routine medical procedures and more likely to experience a lower quality of health services, and called out the social responsibility of physicians toward their patients [12]. Social justice is not just an admirable idea. Social justice is a responsibility of the health care team to provide health services for every person, no matter where they live, what they do, or what lifestyles they lead. The case for social justice medical librarianship comes from our roots in the health professions and medical education. I hope this talk challenges our preconceived notions of the role librarians should play in social justice and suggests some specific actions. There is a growing recognition amongst the health professions and medical educators that there is disparity in the health care delivered to ethnic, racial, gender, and other minority populations [13]. These disparities lead to patient dissatisfaction, noncompliance with treatment, and poorer health outcomes. Diseases such as tuberculosis and HIV are social diseases. There is recognition that the impact of societal and economic factors on the individual needs to be considered just as much as the bacteria of the disease itself [14]. There needs to be a broader awareness of the barriers to accessing health services among underrepresented groups. There also needs to be a comprehensive strategy in addressing them [12]. The Liaison Committee on Medical Education (LCME) standard 7.6 is one concrete step [15]. All medical schools in the United States and Canada must address the issues of social justice, cultural competency, diversity, and inclusion along with the need for medical students “to recognize and appropriately address gender and cultural biases in health care delivery” as part of the medical school accreditation process. Specifically, medical students must demonstrate an understanding of how culturally diverse perspectives of health and illness affect a person’s response to symptoms, disease, and 2 9 4 R u s s o M a r t i n DOI: dx.doi.org/10.5195/jmla.2019.712 Journal of the Medical Library Association 107 (3) July 2019 jmla.mlanet.org treatment. The LCME standards also require students to understand how gender and cultural biases affect health care delivery [16]. Medical education is not alone: these themes are reflected in transforming the education of future nurses, public health workers, and other members of the health care team. If medical librarians are to maintain our status as members of the health professional team, then we, too, must take up the call. I would even go so far to say that future survival as a profession depends on it. Rudolf Virchow, who is considered the father of social medicine, wrote in 1848, “Medicine is a social science, and politics nothing but medicine on a grand scale” [17]. Despite this, just like medical librarianship, the medical profession has been slow to respond to society’s issues. The medical professions’ late response to the HIV/AIDS pandemic and its effect on the LGBTQ community is only one example. Yet as evidenced by the LCME accreditation standards and the increased number of journal articles in Academic Medicine over the last decade, there seems to be a greater awareness among medical educators that teaching social justice to medical trainees and medical school faculty needs to be essential to educating future health professionals. SOCIAL JUSTICE AND MEDICAL SCHOOL CURRICULUM There are examples of medical schools incorporating social justice into their curricular offerings: • Through problem-based learning methods, medical students and faculty at the University of Hawaii have developed the Social Justice Curriculum Project, consisting of self-directed learning, action, and self-reflection [18]. • The University of California Davis Health System offers faculty development training on how to conduct interracial dialogue on race, racism, oppression, and privilege [19]. • In memory of Freddie Gray, faculty at Northeastern Ohio University have designed a curriculum to help trainees and faculty understand unequal access to health care and how physicians can work toward eliminating the injustices contributing to inappropriate care [20]. • The Human Rights and Social Justice Scholars Program at the Icahn School of Medicine at Mount Sinai is a preclinical training program in social medicine that incorporates service learning experiences with lectures, mentorship, research projects, policy and advocacy projects, and a seminar series [18, 21]. • The Harvard Medical School hosts the “Equity and Social Justice” series of lectures and dialogues focusing on history and context, culture and environment, health disparities, and leadership and skills development. Other medical schools are going beyond the LCME guidelines and are beginning to also provide advocacy training to address social determinants of health. The LEADS Curriculum at the University of Colorado School of Medicine, the Scholarly Concentration in Advocacy and Activism at the Brown University Warren Alpert Medical School, and the Health Justice Scholar Track at Georgetown University School of Medicine are early examples that focus on empowering medical students to design and execute advocacy projects for social change. I am fully aware of the criticisms of social justice and social justice education. Some may think it too politically liberal, or too politically correct, or too leftist or activist. Some may feel that they cannot express their conservative views in these settings. The goal of social justice is not to have us conform to one way of thinking but rather to give everyone the opportunity to be engaged, thoughtful community members who think critically about issues affecting the community. This is the tradition of a liberal education without having politically liberal connotations. It is where students, educators, and librarians recognize the complexity of the world and our interconnectedness. It is an opportunity for us all to reflect and think critically about these issues, develop tolerance for ambiguity, appreciate diversity, and respect the different views of others [22]. THE CASE FOR SOCIAL JUSTICE AND THE MEDICAL LIBRARIAN Like medicine, medical librarianship is not only an information science, but a human science. It is the search, retrieval, evaluation, and application of information to meet human needs to help health professionals, students, and patients make informed decisions about their health. Currently, much of what we do in medical libraries still focuses on developing vast libraries of print or online collections, enhancing informatics technology-based S o c i a l j u s t i c e a n d t h e m e d i c a l l i b r a r i a n 2 9 5 DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association skills, and developing evidence-based best practices for delivering reference, education, or other services. While performing activities such as developing data science plans, digitizing special collections, and conducting systematic reviews are important, they need to be done in a social justice context. Through a social justice lens, we would need to introduce more humanistic approaches to our work: refocusing our attention from serving ourselves and what is more efficient or effective for us to do in our libraries and shifting our focus outward. We need to focus on learning what our users want from us, learning how individual users experience the library, and tailoring our services and approach to their individual needs and experience. Social justice librarianship involves developing a personal and professional approach in which the practice of medical librarianship puts the user’s interests and needs front and center. Like medicine, we have been slow to recognize what our social responsibility to those we serve is and that there is no one size fits all to the services we provide. This lecture critically discusses this concept of social justice and proposes that medical librarians must go beyond the traditional approaches to thinking about their work and must develop a deeper understanding of and connection with the social responsibilities of the health professions and people we serve. Medical librarians must develop a new professional orientation—one that fosters a critical awareness or critical consciousness of going beyond the self to others and a commitment to addressing the issues of societal relevant health information. This new professional orientation or identity places information science in a social and cultural context. It is coupled with a recognition of societal injustices with respect to access to health care and health information and a search for appropriate action. I will suggest a framework for medical librarianship social justice, identify the fundamental roles and activities in these areas, and suggest strategies for individual librarians as well as MLA, the Association of Academic Health Sciences Libraries (AAHSL), and schools of library and information sciences (LIS) for developing education and outcomes. It is my hope that, through this lecture, you will gain an understanding of and connection to the social responsibilities of medical librarianship, develop an individual approach to reflective professional practice, and be inspired to action. THE SOCIAL JUSTICE EDUCATION DEBATE While there is more agreement today that health professionals need to be trained in cultural competence, multiculturalism, and social justice, there is a debate regarding the curriculum and the accompanying teaching methods. In academic medicine, proponents of critical consciousness theory view it as a way to help refocus the current methods of health professional education. Medical education focuses on developing procedurally competent physicians. Adding social justice to health education brings physician training back to its original mission of developing socially conscious health providers who focus on the patient-doctor relationship and to “inform an appropriate crucial pedagogy for fostering compassionate, humanistic, socially conscious health professionals who act as agents of change” [23]. The early efforts in social justice medical education curricula stress developing competencies in multiculturalism. These efforts use the categorical approach where attitudes, beliefs, and behaviors of specific cultures and groups are defined, outlined, taught, and memorized. While acquiring multicultural competence implies learning about multiple and diverse cultures, it is limiting. It often leads to oversimplifying and stereotyping certain groups. This is an unintended outcome. This realization has led to new teaching methodologies that focus on developing a set of skills to assess individually what factors might affect a patient’s care or developing critical consciousness [11]. Medical educator Delese Wear cautions that it is not enough to be culturally competent and, in fact, multicultural competency–based education can become “a medical education paradigm in which the notion of ‘novelty’ replaces that of ‘equality’ in approaches to treating patients” [20]. Kumagai argues that a competency-based approach to social justice education is not appropriate, as linear modes of learning may help the student accumulate knowledge but not necessarily understanding. He argues for new ways of thinking about how students learn or know. Teaching social justice to support professionalism calls for new content and new teaching methods [24]. 2 9 6 R u s s o M a r t i n DOI: dx.doi.org/10.5195/jmla.2019.712 Journal of the Medical Library Association 107 (3) July 2019 jmla.mlanet.org The concept of the medical professional who practices actively in the world involves a paradigm shift away from passive learning of new knowledge and skills to more active learning. It requires developing a new professional identity with a reflective orientation to the understanding of self, professional self, others, and the world. It has its roots in “Critical Conscious Theory,” a term proposed by Brazilian activist and theorist Paulo Freire in his 1970 work, Pedagogy of the Oppressed. Critical consciousness goes beyond critical thinking. It is the “ability to intervene in reality in order to change it.” The link from education to democracy is implicit in Freire’s work. Learners act as subjects in the creation of democracy in education through telling and listening to experiences. Consciousness is a sense of one’s personal and collective identity, an in- depth understanding of the world, and a penchant for action against oppression [25]. Friere saw the act of dialogue as an act of proclaimed equality: dialogue, curiosity, creativity, and critical consciousness actively seek to intervene and change society. He observed the educational system in Brazil, which focused on spoon-feeding or banking and depositing knowledge to the masses, as oppressive. He advocated for more active learning and questioning as a way of freeing the individual. He felt that learners needed to connect to their own personal, cognitive, and emotional experience; to engage with others through dialogue; and to emancipate themselves and others through praxis (applying theory to action). This capacity to connect with one’s position in society and engage in dialogue about inequities depends upon critical consciousness—a reflective reading of the world. From consciousness, learners could act as agents of change. Social justice education is actively learning by doing. Friere’s theory of critical consciousness has been applied to educational change in various disciplines, most recently, medical education: A Friere critical teacher is a problem-poser who asks thought provoking questions and encourages students to ask their own questions…students experience education as something they do, not as something done to them…educators…are challenged to de-privilege their own power and authority and become informed, experienced and knowledgeable facilitators of student learning rather than depositors of information into the mental vaults of learners. [26] Students are both teachers and learners and vice versa. Kumagai expands on Friere’s work as applied to teaching social justice in a medical context. He calls on the teachings of German philosopher Jürgen Habermas and his framework for knowing and communicating. Teaching social justice requires another type of learning, by which individuals (and, indeed, groups and societies as a whole) formulate new ways of understanding reality, of interacting with others, and of perceiving their own identities. Habermas identifies three primary ways in which we generate knowledge. The first is “Work” or instrumental action—knowledge based upon empirical investigation and governed by technical rules. Scientific research is an example of this domain. In librarianship, this may equate to technical work in maintaining systems and collections. The second is “Practical Knowledge.” This domain identifies human social interaction or “Communicative Action.” It is defined by “building consensus or standards” in order to determine appropriate action. Legal and social sciences belong to the “Practical.” In medical librarianship, “Practical” is the way we help develop clinical practice. The last is “Emancipatory,” or “self- knowledge” or “Self-reflection.” This involves: interest in the way one’s history and biography has expressed itself in how one sees oneself, one’s roles and social expectations…Insights gained through critical self- awareness are emancipatory. Knowledge is gained by self- emancipation through reflection leading to a transformed consciousness or changed perspective. [27, 28] For medical librarians, this can include approaching the reference interview from the user’s perspective and having a greater awareness of our own biases prior to providing canned searches or information packets. The medical librarian needs to have empathy for the individual asking the reference question and treat every question as an individual need. Habermas’s framework of knowing is important to consider as we think about a social justice framework for medical librarianship. Although medical training, appropriately so, must focus on developing technical skills and consensus-driven understanding of best clinical practice, not all education to prepare health professionals to work in society arises from these ways of knowing. Implicit in the efforts to introduce more humanistic care into medicine and to address S o c i a l j u s t i c e a n d t h e m e d i c a l l i b r a r i a n 2 9 7 DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association topics as social justice and human values into professional training is a requirement that a new way of knowing does not involve just knowing facts and figures. It involves the personal and professional orientation toward self and others—a way of being in the world—in which the practice of medicine has the patient’s interests at the forefront. This way of being cannot be taught through traditional lecture or classroom settings but must be acquired through reflection, dialogue, and experience [28]. This type of education engages learners and teachers in the exploration of self and others through the use of narratives, reflective writings, comics, art, theater, and film. The emphasis is to engage in reflective interaction with a play, film, or essay; with a patient; and with each other in opportunities to grapple with moments of uncertainty and discomfort, and to go ultimately beyond discussion to action in the world. Medical libraries, schools of LIS, and our medical library associations need to emulate the efforts from our health professional colleagues when it comes to social justice education. We need to introduce more of these ways of learning and concepts into our formal and informal curriculum for medical librarians. DIVERSITY IN LIBRARIANSHIP Let me now turn to diversity in our profession. Though not the same as social justice, diversity is important for achieving it. While the library community considers diversity to be a core value, the library sector has fallen short, despite ongoing initiatives that focus on the recruiting minority librarians. What do we mean when we say diversity, and why does diversity matter? Diversity matters because we want our libraries to be reflective of the diverse communities in which we work and the users we serve. A recent McKinsey analysis of 366 global public companies found that those companies with greater ethnic diversity are 35% more likely to outperform their peers: “Diversity matters because it is an opportunity to be innovative, to leverage gifts and talents of all our people” [29]. For at least the last two decades, many academic libraries have established diversity committees, residency programs, and fellowship opportunities for minorities in order to increase representation in the workforce. In recent years, some academic librarians have worked toward understanding this issue and have spoken out about the shortcomings of efforts to diversify the profession and advocate for social justice [30]. Professional associations have grappled with the issue of diversity and initiated efforts to increase the representative numbers of library employees of color in librarianship. Library organizations have implemented programs toward effecting change in the racial and ethnic makeup of the profession. In 1997, the American Library Association (ALA) began the Spectrum Scholarship Program meant to address ethnic under- representation in the library community. More recently, the Association of Research Libraries began providing a number of diversity initiatives surrounding recruitment and career development of underrepresented ethnic groups, including the “Initiative to Recruit a Diverse Workforce” and the “Leadership and Early Career Development Program,” among others. The Association of College and Research Libraries has in recent years formed a Diversity Alliance. MLA has had a Scholarship for Minority Students and recently formed the Diversity and Inclusion Task Force; AAHSL has acted similarly. Despite these efforts, librarianship remains a primarily white female profession. The Ithaca S+R report, funded by the Andrew Mellon Foundation, called the “Inclusion, Diversity, and Equity Survey,” is the most recent attempt to measure representational diversity in libraries and documents the lack of racial and ethnic diversity in the profession. It found that over 75% of employees at academic research libraries were white. And as positions become increasingly senior, they also become increasingly white [31]. The report also found that library leaders or administrators are 89% white and non-Hispanic. It also noted that many non-white staff members work in roles such as technical services, processing, and so on, which are being phased out of libraries as they move from print to electronic collections. One of the study’s coauthors Roger Schonfeld wonders whether “There is in fact a risk that libraries will become not more diverse in the future but potentially less diverse in the future if action isn’t taken” [31]. The report gives credence to minority staff who have faced barriers to advancement. These issues become even more pronounced as the national population has grown markedly more diverse. The US population (2013 figures) is 62% 2 9 8 R u s s o M a r t i n DOI: dx.doi.org/10.5195/jmla.2019.712 Journal of the Medical Library Association 107 (3) July 2019 jmla.mlanet.org white, with a projection for 2060 that white people will make up only 40% of the population [32]. Using the ALA Diversity Counts data and comparing it to the US Census data for 2013 and US Census projections for 2060, it is clear that we are far from reflecting our country’s diversity. However, diversity has a much broader definition than race and ethnic representation and encompasses combatting discrimination based on age, sex, sexual orientation, gender identity, gender expression, religious background, language, or disability. The ALA Diversity Counts data go beyond highlighting the disparity for race and ethnicity. We lack other forms of diversity in libraries as well, though demographic data for areas other than race and ethnicity are less well defined or tracked. The Diversity Counts authors highlight the low employment of librarians with disabilities, given the increase between 1990 and 2000 of people self-identifying as having 1 or more disabilities. While 19% of 21–64 year olds self-identified as having a disability on the 2000 US Census, the percentage of credentialed librarians was 4% [32]. The recent Association of American Medical Colleges (AAMC) report called “Learners and Disabilities” is similarly discouraging. Only 2.5% of 1,500 medical students self-identified as having disabilities and needing accommodations [33]. The report highlights the barriers that medical students with disabilities experience in their training. Going back to librarians, the Diversity Counts report states, “Credentialed librarians are predominately women, ages 45–54, and white. They are not limited by disability and work full-time” [32, 34]. This lack of diversity in libraries in regard to race, ethnicity, disability, and other factors distance the very communities we seek to serve. And it suggests a proportionally less diverse library workforce on the horizon [34]. We need to ask ourselves why diversity does not happen despite libraries making diversity a priority. Why are these efforts not making any meaningful difference? Why are we bringing people from underrepresented groups into our libraries at the same rate they are leaving the profession [34]? What are the barriers to diversifying employees? When asked this question in the Ithaka survey, library directors recognize there is a problem but identify the problem as something they cannot control. They blame external factors, such as lack of a talent pool or geographical location, rather than internal factors such as unconscious bias in the interview process. [31]. In addition, they identify their libraries as more inclusive than the library community as a whole, whether or not that is the case [31]. Yet, we know that in comparing the percentage of racial and ethnic subgroups in the US population, the distribution in library assistant positions is more or less proportional, whereas the distribution in professional librarian positions is not, the latter skewing heavily to an overrepresentation of white people. Diversity Counts confirms this discrepancy [35]. One strategy may be to look internally for higher education and promotional opportunities for library assistants in our own libraries. Perhaps looking in our libraries and not outside the environment is where the problem really lies. When I was at the University of Illinois at Chicago, for example, the university librarian, Sharon Hogan, sponsored a program for underrepresented minority library assistants to attend the master’s of library and information science (MLIS) program at the University of Illinois Urbana-Champaign. Selected employees went to school on weekends (tuition free), the library provided transportation, and upon graduation, students/employees were guaranteed a paid professional position in the library system. It should be easier today to implement programs like this, especially since there are so many online LIS degree programs available. Eligible employees could be given educational leave to complete coursework, allowed to use work computers, and receive tuition benefits. Common library hiring processes and practices also contribute to the lack of diversity. We need to examine the criteria for job descriptions, recruitment processes, and hiring practices to open up the pipeline for underrepresented groups to enter the profession and provide opportunities for advancement. While we discuss and say we encourage the recruitment of library workers from diverse backgrounds, our application requirements are not designed to celebrate the experiences of diverse applicants. We need to reframe application requirements, materials, and interview questions in ways that make sense for a variety of applicants’ experiences [36]. S o c i a l j u s t i c e a n d t h e m e d i c a l l i b r a r i a n 2 9 9 DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association SOCIAL JUSTICE IN MEDICAL LIBRARIANSHIP In earlier portions of this talk, I discussed how medical educators and health professional students have incorporated social justice, through critical consciousness, into their work and studies. I have also discussed how our profession has been challenged in achieving success in diversity despite our efforts. Though social justice has not been the focal point for the medical library profession, there are examples in which individual medical librarians have been active in what I would call social justice outreach. One such example is the response of some of our members to the appearance of HIV/AIDS in the early 1980s, a disease that was social and stigmatized the populations it affected. While only a handful of articles about this new disease appeared in peer-reviewed journals in the early 1980s and the disease was never recognized until after the Ronald Reagan presidency, new and different sources of information were developing to fill the void. Gay and community-based organizations primarily in New York and San Francisco, where effects of the disease were most felt, were collecting and distributing information about treatment and prevention; often with the help of medical librarians working with these organizations. The first MLA presentation on this topic, “The AIDS Information Crisis: Confluence of the Roles of Information Creator, Seeker, and Provider,” by David Ginn, which was delivered at the 1987 annual meeting in Portland, Oregon, chronicled the information phenomenon in the gay and community-based organizations and called for the AIDS information gap to be addressed by our profession [37]. At the same time, M. Kent Mayfield, MLA headquarters continuing education program leader, enlisted Ginn and Richard Stevens, AIDS director of the Health Council of South Florida, to develop an AIDS information course outlining the new and expanding types of information that existed in the community setting. In the meantime, Gerald J. Perry, AHIP, FMLA, and Jeffrey T. Huber were publishing important books on AIDS information resources and terminology. Perry later went on to form the LGBT Health Sciences Librarians Special Interest Group (SIG) in MLA. In 1994, the National Library of Medicine (NLM) developed a special funding mechanism for HIV/AIDS community-based information access, in which some of us have partnered over the last twenty plus years, bringing information retrieval, skills development, computer acquisition, and Internet access to this affected community. There are numerous other projects funded by NLM in which medical librarians partnered with community-based organizations to enhance the health information literacy of underserved populations. As they are too numerous to name them all, I will highlight a few I am most familiar with. Projects included partnerships with mental health patients and providers. E-mental health programs, coordinated through the Countway Library with partners at the Massachusetts Department of Mental Health and the Dartmouth College and Harvard University Medical Schools, were designed to enhance the health information literacy of seriously ill mental health patients and their families, focusing on co-occurring disease. Persons with serious mental illness have high mortality rates, tend be smokers, experience obesity, and present with multiple physical health concerns. This project focused on information related to physical as well as mental health resources. Another project I worked on while in Worcester addressed the opioid crisis. We worked with the city’s first alternative high school for addicted teens. Medical librarians worked with students, their parents, and their teachers to create a resource room with Internet, computer, and pamphlet materials and sponsored speakers who focused on options for recovery, addiction counseling, and the decriminalization of addiction. When NLM broadened its attention to serving consumers in addition to health professionals, its funding for health information outreach to minorities, underserved, and vulnerable populations through the National Network of Libraries of Medicine (NNLM) has been and continues to be a critical vehicle for social justice librarianship. Medical librarians partnered with public libraries to provide consumer health collections and access to MedlinePlus, computers, and Internet connections as well as training for public librarians. In 2002, for example, medical librarians from the Yale University Harvey Cushing/John Hay Whitney Medical Library partnered with the New Haven Free Public Library to develop a Consumer Health Information Center with collection and information services for the city’s public library users who are traditionally from minority and economically disadvantaged groups. Then Library Director Regina Kenny 3 0 0 R u s s o M a r t i n DOI: dx.doi.org/10.5195/jmla.2019.712 Journal of the Medical Library Association 107 (3) July 2019 jmla.mlanet.org Marone received a recognition award from the city for her leadership in this project. Another example is the SPIRAL project from Tufts University Hirsch Health Sciences Library. SPIRAL stands for “Selected Patient Information Resources in Asian Languages.” Partnering with the Chinatown community in Boston, Tufts University health sciences librarians and community health center providers developed a free online website with patient health information resources in languages such as Chinese, Vietnamese, Cambodian, Korean, Thai, and Japanese. Medical librarians working in international librarianship in conjunction with health care providers to expand medical education curricular and accompanying library resources in countries such as Liberia speak to our profession’s commitment to improving health through equal access to information in a global society. The societal impacts of diseases such as Ebola on a country like Liberia are major, threatening the peace process, causing psychological distress, and resulting in numerous losses of life for the citizenry and health care providers, causing a breakdown of the health care and educational systems. Cultural considerations such as burial practices and wide distrust of traditional healers as well as a lack of basic infrastructure (regular electricity, limited Internet access) hindered efforts in the beginning to control the disease. In a country like Liberia, which was recovering from decades of civil war and whose people experienced years where educational institutions could not operate, basic library services such as print textbooks, a manual check-out system, and copy cataloging served the medical school faculty and students well. The Ebola outbreak resulted in the closing of the medical school, but post-outbreak that basic library was continuing to function when the medical school reopened, and luckily, all the staff we worked with survived the crises, though some of the students had died. The Countway Library of Medicine, Harvard Medical School, is extending the social justice mindset beyond direct outreach services to incorporating a public history perspective to its medical archives and special collections. The project uses a pubic history perspective to apply history to real-world problems. The project, “Equal Access: Stories of Diversity and Inclusion at Harvard Medical School,” focuses on collecting resources that fill in the gaps in the history of medical education. The project includes oral histories and papers from students and faculty who are underrepresented in medicine, including the first women and African American students and faculty. The intention is to use these collections to create a “dialogical” with collaboration and input from the community whose collections are being archived and personal stories recorded in order to more fully interpret and understand the issues surrounding barriers to accessing medical education and why this history is important. The success of these and similar projects depends not on just going into the community and making resources available. All these outreach projects involve getting to know the community and its cultures, developing an equal partnership with the community, showing respect for cultural norms and practices, and then tailoring services to these. Medical librarians’ obligation in providing consumer health information services to the public is a relatively recent phenomenon. MLA’s recognition of the Consumer and Patient Health Information Section, the subsequent Consumer Health Information Specialization, and most recent announcement of nominations for the newly endowed MLA Consumer Health Librarian of the Year Award have cemented what was once regarded as a controversial new role into accepted practice. CALL TO ACTION —A man dies when he refuses to stand up for that which is right. A man dies when he refuses to stand up for justice. A man dies when he refuses to take a stand for that which is true. Martin Luther King [38] If medical librarians are to remain relevant in the future, I believe we must deal with the lack of diversity in our profession, actively create our future using humanistic approaches, and use our information resources, spaces, and expertise to solve relevant issues of today. These include addressing the social and racial injustices in health care. We can use our library spaces to encourage critical consciousness conversations about the hard issues such as racism, sexism, gun violence, health disparities, climate change, and other societal issues affecting the health of the nation. Our libraries can be the community centers where these conversations, open dialogue, and civil debate should be encouraged and can occur. In S o c i a l j u s t i c e a n d t h e m e d i c a l l i b r a r i a n 3 0 1 DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association addition, we can provide the quality information and data to help participants in these conversations critically evaluate and sift out the fake news from the real news. It is our responsibility to provide access to accurate, trusted information as well as the tools and skills to critically evaluate that information in ways that promote diversity, equity, inclusion, and social justice. In addition, we need to collect, preserve, and make available information by, for, and about marginalized communities and fill in the gaps in the history of medical education. In 1962, British librarian Douglas John Foskett wrote The Creed of a Librarian: No Politics, No Religion, No Morals, in which he argued “the librarian ought virtually vanish as an individual person, except in so far as his personality sheds light on the working of the library” [39]. I disagree with Foskett. In my opinion, the notion of library neutrality is a myth. Our buying decisions, resources, budgets, and even locations are not neutral. We contribute to certain kinds of inequalities through our acquisitions decisions, our cataloging practices, our classification schemes, our controlled vocabularies, our use of commercial search engines, and even where we are located in our hospitals or academic campuses. We regularly practice self-censorship in book selection by primarily buying from corporate vendors. Neutrality is “a code word for the existing system. It has nothing to do with anything but agreeing to what is and will always be…Neutrality is just following the crowd” [40]. A neutral stance does not care about human rights violations. Neutrality does not account for social and economic inequalities. The notion that the medical library is a social institution that serves as a community center for its users is not neutral. Medical librarians cannot be neutral and be trusted advocates for their communities, especially the underserved. I believe that medical librarians can be forces for social good. This is crucial to our future and to the health of our local communities and a sustainable global community. What can medical librarians do? We need to move beyond awareness to action. We must address the whiteness of our profession and develop real strategies for doing so [36]. We must acknowledge that our libraries have never been and are not neutral. We must bring our libraries closer to the communities we serve. We need to confront the societal responsibilities of LIS and develop curricula that emphasize preparing future librarians for leadership roles in activism, community service and engagement, rights, and justice. We need to shift our focus to the people and communities we serve and de-emphasize collections. Medical librarians in partnership with medical educators can and should provide students with opportunities, resources, and spaces that encourage open dialogue on social issues, broaden their horizons, encourage empathy for patients, and use these experiences to make a difference. Medical librarians should embrace a humanistic approach to professional practice, one that embraces the whole person, not just the physician scientist, and supports curricular efforts that expand the humanities in medicine. We need to offer services, programs, and resources that reflect the diversity of the communities we serve and provide outreach to and advocacy for and with underserved communities in our local communities. We need to support open access publishing and advocate for policies that increase access to information for all [30]. Medical librarians, our professional associations, and LIS schools can take specific actions to promote social justice. We can offer open dialogues and discussions on social justice topics at our library conferences. We can develop hiring practices that recognize a variety of experiences, application formats, and interview styles to encourage diverse applicants to apply. We can commit to opening the pipeline into medical librarianship through innovative pathways for library assistants to attain the MLIS. We can make concerted efforts to hire staff from diverse backgrounds that reflect US census data. We must develop a welcoming and inclusive environment for all employees and library users in our workplaces. We must welcome all comers into our library conferences. We must develop an approach to professional practice that considers user needs and experiences first and offer library services, resources, and programs that reflect the needs of our users, especially those who may be marginalized. We can adopt a public history perspective to building special collections and archives, filling in the gaps. We can adopt and enforce practices and policies that show respect for ALL library users, even when these may be inconvenient for us. We must implement outreach and advocacy programs in equal partnership with underserved populations, respecting cultural norms, in order to increase access to health information throughout the world. In the LIS schools or 3 0 2 R u s s o M a r t i n DOI: dx.doi.org/10.5195/jmla.2019.712 Journal of the Medical Library Association 107 (3) July 2019 jmla.mlanet.org programs, we need to add courses into the curriculum that focus on diversity and social justice topics; and we need to increase the number of LIS faculty from diverse backgrounds. CONCLUSION —Injustice everywhere is a threat to justice everywhere. Martin Luther King [41] Librarian of Congress Archibald MacLeish said, “Librarians must become active not passive agents of the democratic process” [42]. Social justice and social responsibility are core values of the medical profession. Medical librarians have been an untapped resource for this important work. Diversity, inclusion, and social justice are the defining issues for the present and future of the medical library profession. Positive outcomes from this work will be cementing the relevance of the medical librarian as a member of the health care team. Medical librarians who practice their profession through a social justice lens have the potential to have a meaningful impact on transforming the health of the public, especially the marginalized. Medical librarians are no strangers to change and evolving roles. We have learned new technologies and adapted them into our library workflows. We have moved from a focus on print to electronic resources. We have added online searching, expert searching, systematic reviews, and in-person and online teaching to our portfolios. We work outside the library as informationists and are embedded into research or clinical teams. We have learned how to write data management plans and teach researchers and graduate students how to use electronic lab notebooks. Social justice medical librarianship is one more change in the evolution of our profession. We can do this. We must do this. The future of our profession depends on it. REFERENCES 1. Brandeis LD. Social Welfare History Project: True Americanism—address of Louis D. Brandeis (1915) [Internet]. Virginia Commonwealth University [cited 20 Mar 2019]. <http://socialwelfare.library.vcu.edu/uncategorized/true- americanism-address-louis-d-brandeis-1915/>. 2. Gorman M. Our enduring values: librarianship in the 21st century. Chicago, IL: American Library Association; 2000. 3. Lemkau HL Jr. Constants, context, and change: the pursuit of purpose. J Med Libr Assoc. 2008 Jan;96(1):12–9. DOI: http://dx.doi.org/10.3163/1536-5050.96.1.12. 4. Zachert MJ. Books and other endangered species: an inquiry into the values of medical librarianship. Bull Med Libr Assoc. 1978 Oct;66(4):381–9. 5. Bishop D. On the uses of diversity. Bull Med Libr Assoc. 1976 Oct;64(4):349–55. 6. Brodman E. The pursuit of excellence. Bull Med Libr Assoc. 1971 Oct;59(4):549–54. 7. Anderson RK. Reinventing the medical librarian. Bull Med Libr Assoc. 1989 Oct;77(4):323–31. 8. Oppenheimer GJ. Domus or polis? the location of values. Bull Med Libr Assoc. 1988 Oct;76(4):306–16. 9. Klein A. Obama calls for ‘democracy with a small d.’ Washington, DC: World Net Daily [Internet]. 19 Sep 2012 [cited 20 Mar 2019]. <https://www.wnd.com/2012/09/obama-calls-for- democracy-with-a-small-d/>. 10. O’Toole G. Of all the forms of inequality, injustice in health is the most shocking and inhuman [Internet]. Quote Investigator [22 Oct 2015; cited 25 Mar 2019]. <https://quoteinvestigator.com/2015/10/22/mlk- health/>. 11. Kumagai AK, Lypson ML. Beyond cultural competence: critical consciousness, social justice, and multicultural education. Acad Med. 2009 Jun;84(6):782–7. 12. Betancourt JR. Eliminating racial and ethnic disparities in health care: what is the role of academic medicine? Acad Med. 2006 Sep;81(9):788–92. 13. American College of Physicians. Racial and ethnic disparities in health care. Philadelphia, PA: The College; 2003. 14. Farmer P. Social scientists and the new tuberculosis. Soc Sci Med. 1997 Feb;44(3):347–58. 15. Liaison Committee on Medical Education. Functions and structure of a medical school: standards for accreditation of medical education programs leading to the MD degree [Internet]. Association of American Medical Colleges and the American Medical Association; 2017 [cited 1 Apr 2109]. <http://www.lcme.org/publications/#Standards>. 16. Schiff T, Rieth K. Projects in medical education: “Social Justice in Medicine” a rationale for an elective program as part of the medical education curriculum at John A. Burns School of Medicine. Hawaii J Med Public Health. 2012 Apr;71(4 suppl 1):64–7. 17. Taylor R, Rieger A. Medicine as social science: Rudolf Virchow on the typhus epidemic in Upper Silesia. Int J Health Serv. 1985;15(4):547–59. 18. Ambrose AJ, Andaya JM, Yamada S, Maskarinec GG. Social justice in medical education: strengths and challenges of a student-driven social justice curriculum. Hawaii J Med Public Health. 2014 Aug;73(8):244–50. 19. Acosta D, Ackerman-Barger K. Breaking the silence: time to talk about race and racism. Acad Med. 2017 Mar;92(3):285– 8. S o c i a l j u s t i c e a n d t h e m e d i c a l l i b r a r i a n 3 0 3 DOI: dx.doi.org/10.5195/jmla.2019.712 jmla.mlanet.org 107 (3) July 2019 Journal of the Medical Library Association 20. Wear D, Zarconi J, Aultman JM, Chyatte MR, Kumagai AK. Remembering Freddie Gray: medical education for social justice. Acad Med. 2017 Mar;92(3):312–7. 21. Bakshi S, James A, Hennelly MO, Karani R, Palermo AG, Jakubowski A, Ciccariello C, Atkinson H. The Human Rights and Social Justice Scholars Program: a collaborative model for preclinical training in social medicine. Ann Glob Health. 2015 Mar–Apr;81(2):290–7. 22. Megivern LE. Political, not partisan: service-learning as social justice education. Vermont Connect. 2010 Jan;31(8):61–71. 23. Halman M, Baker L, Ng S. Using critical consciousness to inform health professions education: a literature review. Perspect Med Educ. 2017 Feb;6(1):12–20. 24. Kumagai AK. From competencies to human interests: ways of knowing and understanding in medical education. Acad Med. 2014 Jul;89(7):978–83. 25. Freire P. Pedagogy of the oppressed. 30th anniversary ed. New York, NY: Continuum; 2000. 26. DasGupta S, Fornari A, Geer K, Hahn L, Kumar V, Lee HJ, Rubin S, Gold M. Medical education for social justice: Paulo Freire revisited. J Med Humanit. 2006 Winter;27(4):245–51. 27. McCarthy TA. The critical theory of Jürgen Habermas. 1st MIT Press paperback ed. Cambridge: MIT Press; 1981. 28. Terry PR. Habermas and education: knowledge, communication, discourse. Curric Studies. 1997 Dec 20;5(3):269–79. 29. Tulshyan R. Why diversity matters [Internet]. Burlington, NC: Diversity Woman [cited 20 Mar 2019]. <http://www.diversitywoman.com/why-diversity- matters/>. 30. Bourg C. Diversity, inclusion, social justice and libraries: proposing a framework. Feral Libr [Internet]. [18 Apr 2016; cited 20 Mar 2019]. <https://chrisbourg.wordpress.com/2016/04/16/diversit y-inclusion-social-justice-and-libraries-proposing-a- framework/>. 31. Schonfeld RC, Sweeney L. Inclusion, diversity, and equity: members of the Association of Research Libraries: employee demographics and director perspectives [Internet]. Ithaka S+R; 2017 [cited 1 Apr 2019]. <https://sr.ithaka.org/publications/inclusion-diversity- and-equity-arl/>. 32. American Library Association. Diversity counts [Internet]. Chicago, IL: The Association [cited 20 Mar 2019]. <http://www.ala.org/aboutala/offices/diversity/diversit ycounts/divcounts>. 33. Meeks LM, Jain NR. Accessibility, inclusion, and action in medical education: lived experiences of learners and physicians with disabilities. Washington, DC: Association of American Medical Colleges; 2018. 34. Vinopal J. The quest for diversity in library staffing: from awareness to action. Libr Lead Pipe [Internet]. 13 Jan 2016 [cited 20 Mar 2019]. <http://www.inthelibrarywiththeleadpipe.org/2016/quest -for-diversity/>. 35. Lance KC. Racial and ethnic diversity of U.S. library workers. Am Libr. 2005 May:41–3. (Available from: <https://www.lrs.org/documents/workforce/Racial_and _Ethnic.pdf>. [cited 1 Apr 2019].) 36. Hathcock A. White librarianship in blackface: diversity initiatives in LIS. Libr Lead Pipe [Internet]. 7 Oct 2015 [cited 20 Mar 2019]. <http://www.inthelibrarywiththeleadpipe.org/2015/lis- diversity/>. 37. Ginn DS. The AIDS information crisis: confluence of the roles of information creator, seeker, and provider. Bull Med Libr Assoc. 1987 Oct; 75(4): 333–41. 38. Emery D. Did Martin Luther King say ‘our lives begin to end the day we become silent’? [Internet]. Snopes Media Group [16 Jan 2017; cited Mar 25 2019]. <https://www.snopes.com/fact-check/mlk-our-lives- begin-to-end/>. 39. Foskett DJ. The creed of a librarian—no politics, no religion, no morals. London, UK: Library Association; 1962. 40. Horton M, Freire P, Bell B, Gaventa J, Peters JM, eds. We make the road by walking: conversations on education and social change. Philadelphia, PA: Temple University Press; 1990. 41. King ML Jr. Letter from Birmingham jail. Liberation. 1963;8(4):10–6. 42. MacLeish A. The librarian and the democratic process. ALA Bulletin. 1940 Jun:388. AUTHOR’S AFFILIATION Elaine Russo Martin, FMLA, elaine_martin@hms.harvard.edu, Director of Library Services, Countway Library, Harvard Medical School, Boston, MA Received March 2019; accepted March 2019 Articles in this journal are licensed under a Creative Commons Attribution 4.0 International License. This journal is published by the University Library System of the University of Pittsburgh as part of its D-Scribe Digital Publishing Program and is cosponsored by the University of Pittsburgh Press. ISSN 1558-9439 (Online) Elaine Russo Martin, FMLA See end of article for author’s affiliation. This lecture discusses social justice and the role that medical librarians can play in a democratic society. Social justice needs to be central to the mission of medical librarianship and a core value of the profession. Medical librarians must develop a new professional orientation: one that focuses on cultural awareness or cultural consciousness that goes beyond ourselves and our collections to that which focuses on the users of our libraries. We must develop a commitment to addressing the issues of societal, relevant health information. Using examples from medical education, this lecture makes the case for social justice librarianship. This lecture also presents a pathway for social justice medical librarianship, identifies fundamental roles and activities in these areas, and offers strategies for individual librarians, the Medical Library Association, and library schools for developing social justice education and outcomes. The lecture advocates for an understanding of and connection to social justice responsibilities for the medical library profession and ends with a call to go beyond understanding to action. The lecture emphasizes the lack of diversity in our profession and the importance of diversity and inclusion for achieving social justice. The lecture presents specific examples from some medical libraries to extend the social justice mindset and to direct outreach, collections, archives, and special collection services to expose previously hidden voices. If medical librarians are to remain relevant in the future, we must act to address the lack of diversity in our profession and use our information resources, spaces, and expertise to solve the relevant societal issues of today. INTRODUCTION DEFINING SOCIAL JUSTICE SOCIAL JUSTICE AND MEDICAL SCHOOL CURRICULUM THE CASE FOR SOCIAL JUSTICE AND THE MEDICAL LIBRARIAN THE SOCIAL JUSTICE EDUCATION DEBATE DIVERSITY IN LIBRARIANSHIP SOCIAL JUSTICE IN MEDICAL LIBRARIANSHIP CALL TO ACTION CONCLUSION References Author’s Affiliation Elaine Russo Martin, FMLA, elaine_martin@hms.harvard.edu, Director of Library Services, Countway Library, Harvard Medical School, Boston, MA Received March 2019; accepted March 2019 
work_6ye3a4zyrvaa3ggevr46bquduu	----	1719 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 НОВАЯ НАУЧНАЯ ПАРАДИГМА Феномен ноосФеры: эволюционный подход и глобальное измерение а.д. Урсул DOI: 10.7256/1999-2793.2014.12.13053 Введение В первой� половйне прошлого века россйй� скйй� уче- ный� академйк В.И. Вернадскйй� й два французскйх ученых – П. Тей� яр де Шарден й Э. Леруа выдвйну- лй йдею становленйя сферы разума – ноосферы в качестве главного направленйя дальней� шего раз- вйтйя человечества, которое должно рацйоналй- зйровать цйвйлйзацйонный� процесс, обеспечйть выжйванйе цйвйлйзацйй. В.И. Вернадскйй� предсказал, что научная мысль обрете� т «планетный� » (глобальный� ) харак- тер. И конкретные очертанйя этого предсказанйя мы вйдйм как в ныне пройсходящйх глобальных процессах в мйре й йх осмысленйй, так й в пред- вйденйй й йсследованйй будущйх соцйальных й соцйопрйродных эволюцйонных процессов. В.И. Вернадскйй� сей� час вйдйтся в качестве велй- кого мыслйтеля глобальной� эпохй, которая в пер- спектйве становйтся также эпохой� ноосферы1. 1 См.: Ильин И.В., Урсул А.Д. В.И. Вернадский – основопо- ложник глобальных исследований // Вестник Московского университета. Серия XXVII. Глобалистика и геополити- Аннотация. В статье выстраивается единая эволюционно-информационная концепция становления ноосферы не только как планетарного феномена, но и как необходимого этапа вселенского процесса самоорганизации ма- терии. Сфера разума представляется автором как ещё не существующее, а гипотетическое будущее состоя- ние общества и его взаимодействия с природой, в котором приоритетное место будет занимать глобальный общечеловеческий интеллект, направляющий социоприродную эволюцию в безопасно-поступательном на- правлении. Раскрывается процесс перехода человечества к устойчивому развитию, информационная сущность феномена ноосферы и становления её главного ядра – коллективного ноосферного интеллекта. Отмечается, что учение о ноосфере в трудах В.И. Вернадского развивалось на концептуальной основе, в которой глобализм и идеи становления ноосферы оказались соединенными в целостную форму мировоззрения. Ноосферогенез рас- сматривается в работе как основное средство и форма выживания человечества и как главная цель всего со- временного и будущего цивилизационного развития, включая переход к глобальной устойчивости, созидание информационной цивилизации, глобализацию и другие позитивные процессы глобального развития. Автор так- же анализирует новые мегатенденции ноосферогенеза в области науки, образования, культуры, управления с учетом достижений современных научных исследований и прогнозирования перспектив дальнейшей эволюции мировой цивилизации. В работе используются эволюционный (в особенности универсально-эволюционный) под- ход и методы глобальных исследований, а также информационный подход и критерий развития. Показано так- же, что в рамках исследования будущего ноосферно-футурологический подход может кардинальным образом изменить и традиционные подходы и способы исследования, ориентируя научный поиск в области прошлого и настоящего в сторону осознания и прогнозирования будущего. Высказывается мнение, что человечество уже начинает превращаться в единую, целостную цивилизацию ноосферы, сопровождаемую формированием прин- ципиально нового безопасного социоприродного коэволюционного способа взаимодействия. Также речь идёт о том, что социальная и социоприродная эволюция создает возможности становления сферы разума не только в биосфере. Ноосферогенез как будущий глобальный процесс выступает как необходимый этап глобальной эво- люции в мироздании, которая будет реализоваться в социоприродной и социокультурной формах вначале на Земле, а затем и в пространствах Вселенной. Ключевые слова: глобальное, глобальная эволюция, информация, информационный критерий, культура, ноосфера, ноосферогенез, ноосферный интеллект, цефализация, эволюционный подход. Философия и культура 12(84) • 2014 1720 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 Концепцйй сферы разума, йлй ноосферы, ко- торые былй предложены йх основоположнйкамй, существенно разлйчалйсь между собой� . Однако все онй ймелй некоторое общее содержанйе й йс- следовательскую орйентацйю – веру в сйлу разума (не только человеческого) й представленйе йнтел- лекта в его разлйчных формах в качестве главного двйжущего механйзма последующей� уже «целесо- образно-разумной� » эволюцйй. Хотя термйн «но- осфера» не употреблялся К.Э. Цйолковскйм, тем не менее, он также говорйл о ролй разума во Все- ленной� , полагая, что мысль оказывается не только геологйческйм фактором (о чем пйсал В.И. Вернад- скйй� ), но й станет решающйм фактором в эволю- цйй космоса. Идея об усйленйй ролй разума в развйтйй об- щества не является достоянйем лйшь конца трйд- цатых годов XX века, когда французскйй� ученый� й фйлософ Э. Леруа, а затем его соотечественнйк П. Тей� яр де Шарден й В.И. Вернадскйй� сталй йс- пользовать понятйе «ноосфера». Прйчем В.И. Вер- надскйй� прйзнавал прйорйтет упомянутых свойх коллег во введенйй тепмйна «ноосфера». Так, во фрагменте «Несколько слов о ноосфере» он отме- чает: «Прйняв установленную мною бйогехймйче- скую основу бйосферы за йсходное, французскйй� математйк й фйлософ бергсонйанец Е. Ле-Руа в свойх лекцйях в Коллеж де Франс в Парйже ввел в 1927 г. понятйе «ноосферы» как современной� стадйй, геологйческй пережйваемой� бйосферой� . Он подчеркйвал прй этом, что он прйшел к тако- му представленйю вместе со свойм другом, круп- ней� шйм геологом й палеонтологом Тельяром де- Шарденом, работающйм теперь в Кйтае»2. Не стойт жестко прйвязывать ноосферные йдей, концепцйй й двйженйя к термйну «ноосфера», ймея также в вйду, что этй йдей й теченйя с самого начала своего генезйса является международнымй, теперь даже глобальнымй. Роль й место разумного начала в соцйальной� деятельностй определяет ста- новленйе ноосферной� йдей, начйная с антйчностй, а тем более, когда сталй прйменяться такйе термйны как «царство разума» (просветйтелй), «мйр разума» (мондйалйсты), йнформацйонное общество, обще- ка. 2013. № 1; Урсул А.Д. Мыслитель глобальной эпохи (К 150-летию со дня рождения В.И. Вернадского) // NB: Фило- софские исследования. 2013. № 9. С. 1-63. (URL: http://e- notabene.ru/fr/article_805.html). 2 Вернадский В.И. Научная мысль как планетное явление. М., 1991. С. 241. ство знанйя йлй же более прйнятый� в Россйй тер- мйн «ноосфера». Поэтому «ноосферное двйженйе» оказывается более шйрокйм, чем те йсследованйя, которые йспользуют ставшйй� уже традйцйонным термйн «ноосфера». В настоящей� работе далее развйваются осно- вополагающйе йдей В.И. Вернадского о ноосфере, но вместе с тем йде� т определенное расшйренйе концептуального вйденйя феномена ноосферы до глобальных й эволюцйонно-космйческйх масшта- бов. Речь будет йдтй не только о том, что бйосфера создает возможностй становленйя сферы разума, но й о том, что появленйе ноосферы обусловлено глобальной� эволюцйей� во Вселенной� . Обсуждают- ся также новые мегатенденцйй становленйя сфе- ры разума как ноосферогенеза, йлй ноосферного развйтйя с учетом достйженйй� современной� наукй й прогнозйрованйя перспектйв дальней� шего раз- вйтйя глобальных й космйческйх процессов. Работа носйт концептуальный� характер, по- скольку раскрывается й аргументйруется ранее высказанная автором йдея о том, что становленйе ноосферы выступает в качестве необходймого зве- на глобально-унйверсальной� эволюцйй как все- ленского процесса самоорганйзацйй в мйрозданйй. Прй этом выявляется важная роль йнформацйон- ных процессов, факторов й крйтерйев развйтйя, прйчем не только на соцйальном этапе эволюцйй, но й в более шйроком – глобально-эволюцйонном ракурсе. Становленйе ноосферы представляется не только как нейзбежный� этап на путй планетар- ного развйтйя, но й как продолженйя глобальной� эволюцйй, ее� основной� траекторйй – так называ- емой� супермагйстралй, характерйзующей� ся ро- стом сложностй й накопленйем йнформацйонного содержанйя все� более высокйх структур й сйстем в ходе йх самоорганйзацйй. Ноосферный� этап гло- бальной� эволюцйй наступает, когда в цйвйлйзацйй появляется не только огромное йнформацйонное содержанйе, но й появляется новое качество йн- формацйонно-йнтеллектуальных процессов, осо- бенно появленйя свой� ства опереженйя глобально- коллектйвным йнтеллектом своего бытйя. Основные йдей этой� работы сложйлйсь под влйянйем осмысленйя существенного «взрыва» йсследованйй� творчества В.И. Вернадского в связй с празднованйем в прошлом году 150-летйя со дня его рожденйя, который� шйроко отмечался в науч- ных й другйх юбйлей� ных меропрйятйях в нашей� стране. В этйх йсследованйях й меропрйятйях прй- 1721 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма лйчйе точкй зренйя В.И. Вернадского от его уже упомянутых коллег. Такое пространственное й вместе с тем – со- цйопрйродное расшйренйе расшйренйе сферы разума за пределы соцйума ймеет теоретйко-ме- тодологйческйе основанйя: ведь огранйченйе сфе- ры разума только обществом вовсе не означает, это последнее веде� т себя разумно по отношенйю к прйроде. И это демонстрйрует современная гло- бально-экологйческая сйтуацйя, которая стре- мйтельно ухудшается в современной� моделй не- устой� чйвого развйтйя6. Сей� час же цйвйлйзацйя, формально состоящая йз более, чем двух сотен суверенных государств, й 7 млрд. автономных йн- дйвйдов, судорожно «цепляясь» за старую модель развйтйя, неуклонно двйжется к своему трагйче- скому фйналу – глобальной� соцйально-экологйче- ской� катастрофе – й в этом трагйческое протйво- речйе неустой� чйвого развйтйя. Последнее десятйлетйе прошлого века внесло важные корректйвы в понйманйе процесса ста- новленйя ноосферы. Ноосфера – не просто сфера распространенйя человека разумного разумного (даже найменованйе которого Homo sapiens сей� час стало подвергаться серьезным сомненйям й дйс- куссйям7). Ноосфера, как полагал В.И. Вернадскйй� , представляется как «новое геологйческое явленйе на нашей� планете. В ней� впервые человек стано- вйтся крупней� шей� геологйческой� сйлой� . Он может й должен перестрайвать свойм трудом й мыслью область своей� жйзнью, перестрайвать коренным образом по сравненйю с тем, что было раньше. Пе- ред нйм открываются все� более й более шйрокйе творческйе возможностй»8. Здесь ученый� рассма- трйвает ноосферогенез как продолженйе геологй- ческой� эволюцйй, в которой� крупней� шей� геологй- ческой� сйлой� выступает уже не только бйота, но й человечество. Однако вряд лй ймеет смысл называть ноос- ферой� прошлую йлй современную соцйосферу, где самым совершенным тйпом разума обладает лйшь отдельный� нормальный� йндйвйд. Это будет лйшь 6 См.: GEO-5. Глобальная экологическая перспектива. Ре- зюме для политиков. Найроби: ЮНЕП, 2012. 7 См.: Прозоров Л.Л. Было ли учение Вернадского о ноос- фере? // Пространство и время. 2012. № 4. Универсальная и глобальная история (эволюция Вселенной, Земли, жизни, общества). Волгоград, 2012. С. 677. 8 Вернадский В.И. Научная мысль как планетное явление. М., 1991. С. 241. нял участйе й автор, обнаружйвшйй� новые черты й особенностй творческого наследйя ученого как в областй его ученйя о ноосфере, так й установйв- шйй� прйорйтетность й глобальную направлен- ность многйх его научных йсследованйй� 3. Пространственно-временные контуры становления сферы разума Важной� особенностью ноосферной� йдей В.И. Вер- надского является выясненйе ролй разума не толь- ко в жйзнй общества, но через него в эволюцйй бйосферы (особенно геологйческой� й бйосферной� эволюцйй). В прйнцйпе йдея ноосферогенеза как становленйя сферы разума отлйчается от йдей ноогенеза (которая была предложена П. Тей� яром де Шарденом4) тем, что в первом случае ноогенез рассматрйвается совместно с трансформацйямй окружающей� его среды. Это напомйнает йдею бйо- сферы (теорйя которой� была существенно развй- та Вернадскйм5), когда бйота включается в сферу взаймодей� ствующего с ней� косного вещества. И такая йдея оказывается в эволюцйонном плане бо- лее адекватной� , поскольку развйтйе соцйума, тем более прогрессйвное, в сйлу сйнергетйческйх со- ображенйй� следует рассматрйвать как соразвйтйе, желательно, как коэволюцйю сйстемы совместно с прйродной� средой� , за счет которой� оно пройсходйт. Тем самым речь должна йдтй йменно о ноос- ферогенезе, а не о ноогенезе, как об этом пйшет в своей� кнйге «Феномен человека» П. Тей� яр де Шарден, уделяя внйманйе в основном развйтйю сознанйя, процессу йнтеллектуалйзацйй матерйй в ходе эволюцйй. Ноосферогенез – более шйрокое й адекватное понятйе, чем ноогенез, поскольку он касается не только духовно-йнтеллектуальной� составляющей� ноосферы, но й матерйальной� , не только культурно-йнформацйонной� , но й веще- ственно-энергетйческой� – й это существенное от- 3 См.: Ильин И.В., Урсул А.Д. В.И. Вернадский – основопо- ложник глобальных исследований // Вестник Московского университета. Серия XXVII: Глобалистика и геополитика. 2013. № 1; Они же. Глобальные исследования и эволюци- онный подход. М.: МГУ, 2013; Ильин И.В., Урсул А.Д., Ур- сул Т.А. Глобалистика и глобальные исследования. Гло- бальная революция в науке. Saarbrucken, Germany. Dictus Publishing. 2014; Урсул А.Д. Феномен ноосферы: Глобальная эволюция и ноосферогенез. М., 2014. 4 См.: Тейяр де Шарден П. Феномен человека. M., 1987. 5 См.: Вернадский В.И. Биосфера и ноосфера. М., 2004. Философия и культура 12(84) • 2014 1722 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 значйтельная часть бйосферы, в то время когда остальная часть будет сохраняться, что требует пе- реход к устой� чйвому развйтйю (УР). Планетарный� характер становленйя сферы разума (прйнцйп ноо- глобалйзма) определяется не только глобалйзацй- ей� й бйосферно-экологйческймй соображенйямй, а фактйческй всемй основнымй составляющймй сй- стемы глобальной� деятельностй как глобального развйтйя. Однако смысл понятйя «глобальный� » может существенно меняться в завйсймостй от тйпа гло- бальных йсследованйй� . Счйтать же, что во всей� науке следует употреблять термйн «глобальный� » в одном й том же смысле было бы просто нере- алйстйчным. Омонймйя й полйсемйя термйнов является обычным феноменом как обыденного, так й научного языка й она отнюдь не уменьшает- ся с развйтйем наукй, она характерна й для всего спектра современных глобальных йсследованйй� . Казалось бы, глобальнымй процессамй можно на- зывать процессы, пройсходящйе в пределах нашей� планеты, обнаружйвающйе определенную «гло- бальную целостность», лйбо стремящйеся к ней� . В этом смысле глобальные процессы – это не просто процессы, пройсходящйе на Земле, а общеплане- тарные процессы, т.е. охватывающйе всю планету в целом. Однако важно обратйть внйманйе на суще- ствующую «дйхотомйю», лйнгвйстйческую двус- мысленность термйна «глобальный� ». Термйн «глобальный� » этймологйческй пройсходйт не йз одного, а йз двух языков – латйнского («globus» – шар) й французского (global – всеобщйй� , взятый� в целом). И в современной� науке термйн «гло- бальный� » употребляется в основном в этйх двух «пространственных» смыслах: 1) глобальный� как планетарный� , относящйй� ся к земному шару й 2) глобальный� как всеохватывающйй� , унйверсаль- ный� , всеобщйй� , взятый� в целом, й в этом смыс- ле уже распространяется на все мйрозданйе, йлй на всю Вселенную. Соответственно, глобальные процессы могут мыслйться в этйх двух основных значенйях: 1) глобальные процессы как в целом развертывающйеся на земном шаре, т.е. общепла- нетарные процессы, 2) глобальные процессы как процессы, охватывающйе все мйрозданйе, по край� - ней� мере, ту его часть, которая относйтся к вйдй- мой� , йлй вещественной� Вселенной� . Однако есть й еще� одйн смысл термйна «гло- бальный� », который� означает, что данный� про- цесс (объект) обладает какой� -то всеобщей� со- простое перейменованйе соцйосферы в ноосферу, которое нйкак не йзменяет степень разумностй всего человечества, которое по-прежнему будет стремйться к своей� экологйческой� , ядерной� йлй йной� форме стйхйй� но-коллектйвного, как теперь уже ясно, глобального самоубйй� ства. Важно сфор- мйровать прйнцйпйально новый� – не только йндй- вйдуальный� , но й качественно более высокйй� , уже общечеловеческйй� – глобально-ноосферный� йн- теллект, способный� вывестй цйвйлйзацйю йз крй- зйса, предотвратйть возможные планетарные й космйческйе катастрофы. Грозящйе человечеству опасностй й угрозы, особенно глобально-космйче- ского характера, заставляют развйваться челове- ческому йнтеллекту, прйнймать коллектйвные й глобальные формы существованйя й функцйонй- рованйя. Ноосфера (от греч. νό� ός – «разум» й σφαῖρα – «шар») вйдйтся как гйпотетйческое будущее состо- янйе (й вместе с тем дальней� шйй� глобальный� про- цесс) общества й его взаймодей� ствйя с прйродой� , в котором прйорйтетное место будет занймать кол- лектйвный� общечеловеческйй� разум, йменуемый� ноосферным йнтеллектом, направляющйй� эволю- цйю цйвйлйзацйй в прогрессйвно-поступательном й безопасном направленйй (о че� м подробнее пой� - дет речь дальше). Ныне ймеющйй� ся, но трудно определймый� со- вокупный� йнтеллект всего человечества гораздо менее эффектйвен йндйвйдуального йнтеллекта, еслй йметь в вйду здорового нормального чело- века, а не больного лйбо девйантного йндйвйда, стремящегося к суйцйду. Помймо прочего, это свя- зано с отсутствйем необходймых взаймосвязей� между частямй мйрового соцйума (которые йме- ются на уровне йндйвйда), й которые появляются в процессе глобалйзацйй. Вот почему «коллектй- вйзацйя» разума вплоть до обретенйя йм нового качества й целостностй в процессе будущего ноос- ферогенеза преследует цель распространйть более рацйональное (эффектйвное) поведенйе на всю человеческую цйвйлйзацйю й ее взаймодей� ствйе с прйродой� : «лучшее понйманйе й переход от по- нйманйя к дей� ствйю – йменно такую цйвйлйзацйю мы охарактерйзовалй бы как более разумную»9. Характерной� чертой� будущей� ноосферы ока- жется ее глобальный� характер, даже в том случае, еслй в сферу разума будет превращаться лйшь не- 9 Вайцзеккер Э., Ловинс Э., Ловинс Л. Фактор четыре. За- трат – половина, отдача – двойная. М., 2000. С. 353. 1723 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма бйосфера й существующая на ней� соцйосфера бу- дут превращаться в сферу разума, но й внеземное пространство й небесные тела. Именно так по мере становленйя ноосферы й освоенйя космоса будет формйроваться космоноосфера, поэтому й в сйлу этого, пусть й весьма отдаленного этапа ноосферо- генеза, не только бйосфера будет превращаться в ноосферу. Однако, опять-такй важно подчеркнуть, что ноосферное будущее мыслйтся чаще всего в его глобально-планетарной� форме: соцйальная ступень эволюцйй, выходя в космос, будет в пер- вую очередь йскать й освайвать планеты, подоб- ные нашей� Земле, где й предполагается ее� про- странственно-темпоральное продолженйе. Пространственное расшйренйе соцйаль- ной� ступенй вызвано, прежде всего, тем, что ее сущность ймеет прйнцйпйально культурно-йн- формацйонный� характер, отлйчающйй� ся от йн- формацйонно-содержательных характерйстйк бйологйческой� ступенй налйчйем особой� надын- дйвйдуальной� й внелйчностной� сйстемы средств генерацйй, накопленйя, храненйя й преобразова- нйя йнформацйй, необходймой� для органйзацйй соцйальной� деятельностй, т.е. культуры (на чем далее я еще� остановлюсь). Именно этот прейму- щественно внеорганйзменный� , экзогенно-йнфор- мацйонный� характер формйрованйя человеческой� культуры й вызывает расшйренйе сферы челове- ческой� деятельностй вначале на планете, а затем й в космосе. Расшйренйе планетарных масштабов деятель- ностй человека в глобальном йзмеренйй должно быть связано с ее значймостью для человечества в целом, т.е. чем больше масштабы человеческой� деятельностй, тем больше эта деятельность долж- на способствовать выжйванйю й устой� чйвому раз- вйтйю цйвйлйзацйй в целом. Последующйе этапы ноосферогенеза предполагают решенйе новых как глобальных проблем, так й космйческйх по мере продвйженйя эволюцйонного процесса во внезем- ные пространства. Понйманйе того, что представляет собой� ноос- фера, завйсйт прежде всего от обнаруженйя начала ее появленйя (как, впрочем, й наоборот): сйтуацйя здесь аналогйчна с понйманйем глобалйзацйй, где начало этого глобального процесса прямо завйсйт от определенйя его понятйя. Ноосферу в современ- ной� лйтературе представляют в двух основных темпоральных варйантах: как уже существующую сферу распространенйя й обйтанйя человека раз- умного й как гйпотетйческое будущее состоянйе держательной� характерйстйкой� , свой� ством йлй параметром, которому подчйняются абсолютно все существующйе процессы й объекты. Напрймер, все объекты вещественного фрагмента Вселенной� обладают тяготенйем йлй пространством с тремя йзмеренйямй. Илй все людй, населяющйе планету, даже еслй онй еще� не объедйнены в некую гло- бально-целостную сйстему, подчйняются в своем развйтйй какйм-то общйм соцйальным законо- мерностям. Можно сказать, что общйе закономер- ностй, которые свой� ственны всем без йсключенйя йндйвйдам й йх сообществам (соцйумам) также являются йх глобальнымй характерйстйкамй в том смысле, что онй прйсущй всему соцйальному двйженйю й развйтйю. Сравнйвая этй значенйя термйна «глобаль- ный� » (пространственные й всеобще-содержатель- ный� ), можно догадаться, что этот качественно-со- держательный� смысл термйна оказывается более глубокйм й всеохватывающйм. Ведь еслй какйе- лйбо соцйальные процессы еще не обрелй своей� глобальной� целостностй, напрймер, в простран- ственном аспекте, то онй йзначально, по самой� сво- ей� прйроде обладают темй йлй йнымй всеобще-це- лостнымй содержательнымй свой� ствамй, которые в этом случае оказываются атрйбутйвнымй обще- человеческймй характерйстйкамй й параметрамй. Ясно, что атрйбутйвно-содержательный� , ка- чественный� крйтерйй� глобальностй оказывает- ся более «сйльным» й существенным, чем «про- странственно-колйчественные», одйн йз которых на нашей� планете совпадает с географйческйм крйтерйем. Онтологйческй «качественно-атрйбу- тйвная глобальность» относйтся к содержательно- сущностной� стороне объекта йлй процесса, к его прйроде й качественной� определенностй, прйсуща йм йзначально й всегда (по край� ней� мере, с тех пор как онй появйлйсь). В этом смысле глобальность как атрйбут какого-лйбо матерйального процесса йлй предмета – это его внутренняя, «экзйстенцй- альная» глобальность, тогда как «колйчественый� » крйтерйй� в дальней� шем проявляется как про- странственное расшйренйе этого содержательно- качественного крйтерйя. Глобальность того йлй йного процесса в пространственном смысле суще- ствует не всегда, й об этом красноречйво свйде- тельствуют йсследованйя процесса глобалйзацйй, как й не существующйй� пока феномен ноосферы. Можно, следуя К.Э. Цйолковскому, вйдеть ноосферогенез й в космйческой� перспектйве, в каком-то смысле говорйть о том, что не только Философия и культура 12(84) • 2014 1724 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 а прйверженцамй старой� моделй развйтйя фактйче- скй йгнорйруется лйбо даже отрйцается. Роль формйрованйя целей� дальней� шего УР человечества была осознана на недавнем саммйте Рйо+20, подтвердйвшего прйверженность курсу на устой� чйвое развйтйе й на обеспеченйе постро- енйя экономйческй, соцйально й экологйческй устой� чйвого будущего для нашей� планеты й для нынешнйх й будущйх поколенйй� . В йюне 2012 г. Конференцйя ООН по УР (Рйо+20) опять в Рйо-де- Жаней� ро прйняла решенйе о формулйрованйй но- вых целей� развйтйя цйвйлйзацйй (вместо завер- шающйхся Целей� развйтйя тысячелетйя в 2015 г.) для прйданйя деятельностй в областй устой� чйво- го развйтйя целенаправленного й последователь- ного характера. Такой� комплекс целей� в областй УР, отвечающего нормам международного права й опйрающегося на уже прйнятые обязательства й все предшествующйе документы ООН, способство- вал бы более полному осуществленйю решенйй� всех основных встреч на высшем уровне по эконо- мйческой� , соцйальной� й экологйческой� проблема- тйке УР, включая положенйя йтогового документа саммйта Рйо+2012. Исследованйе будущего УР й другйх глобаль- ных процессов в мйре в значйтельной� степенй об- условйлй й процесс футурйзацйй наукй, образова- нйя, управленйя й человеческой� деятельностй в целом. Дело в том, что расшйренйе сферы деятель- ностй на глобальные масштабы влече� т за собой� футурйзацйю, т.е. усйленйе внйманйя к будущему. Одной� йз самых кардйнальных трансформацйй� мй- рового развйтйя будет его футурйзацйя как про- цесс поворота наукй, йнформацйонных процессов й значйтельной� частй человеческой� деятельностй к будущему, й прежде всего речь йдет о включенйй фактора будущего в процесс духовно-йнтеллекту- ального освоенйя мйра й тем самым – процесс но- осферогенеза. Акцент научных (особенно глобальных) йссле- дованйй� на будущем не случаен: глобальная ката- строфа (лйбо череда регйональных катаклйзмов), которая может наступйть уже в XXI в., не даст шан- сов человечеству лйквйдйровать ее последствйя, как это делается сей� час, когда наступают локаль- ные катастрофы й чрезвычай� ные сйтуацйй, а за- тем устраняются йх последствйя. Глобальную (й 12 См.: Итоговый документ Конференции ООН по устойчи- вому развитию «Будущее, которого мы хотим» (URL: http:// www.un.org/ru/sustainablefuture). (й вместе с тем дальней� шйй� развертывающйй� - ся глобальный� процесс) всего человечества й его взаймодей� ствйя с прйродой� . Именно в этйх двух варйантах мыслйлй ноосферу не только Э. Леруа й Тей� яр де Шарден, но й В.И. Вернадскйй� (зачастую отдавая предпочтенйе ее� существованйю в насто- ящее время). Уче� ный� полагал, что становленйе ноосферы – это естественно-йсторйческйй� , нейз- бежный� эволюцйонный� геологйческйй� процесс, появляющйй� ся стйхйй� но как все предшествующйе разлйчные этапы геологйческой� эволюцйй й фор- мацйй в йсторйй человечества. Однако предложенное В.И. Вернадскйм расшй- ренйе чйсто «соцйального» представленйя сферы разума до «соцйопрйродного» понйманйя этого феномена вносйт важные корректйвы в вйденйе процесса ноосферогенеза. Ноосфера оказывается не просто сферой� распространенйя человека. Ученый� рассматрйвает ноосферогенез не только как чйсто соцйальные йлй только духовно-йнтеллектуальные трансформацйй, но й как продолженйе бйосферно- геологйческой� эволюцйй, в которой� крупней� шей� геологйческой� сйлой� выступает человечество. Человеческая йсторйя благодаря созйданйю ноосферы не станет огранйчйваться только про- шлым, настоящйм й весьма огранйченным буду- щйм. Найболее гуманной� перспектйвой� выглядйт продолженйе человеческого бытйя на неогранй- ченно длйтельные времена в будущее, как об этом мечтал К.Э. Цйолковскйй� 10. В.И. Вернадскйй� также весьма оптймйстйчно относйлся к будущему чело- вечества в ноосферной� форме его развйтйя, пола- гая, что: «будущее человека всегда большей� частью создае� тся йм самйм»11. И оба ученых предложйлй свой способы й формы продленйя существованйя человечества в будущее. А прйнятая в конце прошлого века стратегйя устой� чйвого развйтйя (УР), которая направлена на решенйе соцйопрйродных глобальных проблем пе- рехода к ноосфере, – это фактйческй переход от стй- хйй� но-антропофобной� нынешней� формы развйтйя к более гуманной� й управляемой� форме, которая может йсключйть йз будущей� йсторйй цйвйлйза- цйй ее трагйческйй� фйнал. Как вйдйм, рассмотре- нйе проблем перехода к УР существенно повышает йнтерес к проблеме будущего, которому в современ- ной� академйческой� науке уделяется мало внйманйя, 10 См.: Циолковский К.Э. Космическая философия. М., 2001. 11 Вернадский В.И. Открытия и судьбы. М., 1993. С. 484. 1725 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма Еслй глобальные процессы й прежде всего гло- балйзацйя воспрйнймаются как пространственное расшйренйе по земному шару й сйстемное объ- едйненйе, обретенйе целостностй человечества в процессе образованйя связей� между фрагментамй мйрового соцйума, то переход к УР, скорее всего, вйдйтся как глобальный� процесс продолженйя су- ществованйя цйвйлйзацйй во временй. Тем самым речь йдет об оптймйзацйй й реалйзацйй прйнцйпа темпоральной� целостностй существованйя й даль- ней� шего развйтйя цйвйлйзацйй. Глобальное развйтйе через УР ноосферной� орйентацйй предстает как едйный� пространствен- но-временной� процесс дальней� шего безопасного существованйя й сохраненйя эволюцйонно-гене- тйческой� целостностй человеческого рода. Прй- орйтетным выступает обеспеченйе безопасностй развертыванйя глобальных цйвйлйзацйонных процессов в прогрессйвно-поступательном на- правленйй, что гарантйрует возможность й спо- собность человечества к самосохраненйю й даль- ней� шей� эволюцйонной� самоорганйзацйй прй дей� ствйй угроз, опасностей� , крйзйсов й прочйх негатйвных воздей� ствйй� планетарного й космйче- ского масштаба14. Информационная траектория глобальной эволюции и процесс цефализации Информацйя й йнформацйонные процессы, по- вйдймому, йграют гораздо более существенную роль в эволюцйонных процессах в мйрозданйй, чем это представляется в настоящее время. За по- следнйе десятйлетйя развйтйя наук й научных направленйй� об йнформацйй оказалось, что кате- горйя йнформацйй может претендовать на роль концептуального лйдера всей� когнйтйвной� сйсте- мы цйвйлйзацйй. Но не только цйвйлйзацйй, но й всего мйрозданйя15. 14 См.: Урсул А.Д., Урсул Т.А., Иванов А.В. Проблема без- опасности в перспективе устойчивого развития. М.: Универ- ситетская книга, 2014; Ильин И.В., Урсул А.Д., Калюжная Д.Е. Устойчивое развитие и безопасность. Глобальное измерение. Saarbrucken: LAMBERT Academic Publishing, 2014. 15 См.: Информационный подход в междисциплинарной перспективе (круглый стол) // Вопросы философии. 2010. № 2; Информация и научное мировоззрение. Новая миссия школьной библиотеки в XXI веке. М., 2013; Ллойд С. Про- граммируя Вселенную: Квантовый компьютер и будущее науки / Пер. с англ. М.: Альпина нон-фикшн, 2013; Гуре- вич И.М. О физической информатике: Предпосылки и ос- прежде всего антропоэкологйческую, как й ядер- ную) катастрофу можно лйшь предотвратйть опе- режающймй дей� ствйямй всего человечества. Именно поэтому в науку й образованйе, многйе другйе сферы деятельностй необходймо вводйть знанйя й понйманйе необходймостй предотвраще- нйя катастроф й уменйя антйкрйзйсного управле- нйя, с тем, чтобы не допустйть вознйкновенйя не- обратймых катаклйзмов, губйтельных для всего человечества. От устраненйя последствйй� необхо- дймо переходйть к предотвращенйю катастроф й к другйм упреждающйм дей� ствйям, что фактйческй й предлагает мйровому сообществу концепцйя УР. Пессймйстйческая перспектйва продолженйя не- устой� чйвого развйтйя цйвйлйзацйй как раз й по- требовала его йзмененйя с целью реалйзацйй по- степенно осознаваемой� опережающей� потребностй в дальней� шем существованйя человеческого рода й даже обретенйя йм «ноосферного бессмертйя». Сей� час ноосфера в нашйх оптймйстйческйх представленйях вйдйтся как йдеал цйвйлйзацйй будущего, воплощая й сйстематйзйруя многйе по- зйтйвные характерйстйкй человечества, й пока лйшена какйх-лйбо отрйцательных черт. Между тем, этй последнйе всегда прйсутствуют прй реа- лйзацйй любых проектов, тем более глобальных, опыта целенаправленной� реалйзацйй которых у человечества еще� не было. И вместе с тем такую йдеальную модель ноосферы все� же необходймо создавать, чтобы на этой� основе более уверенно двйгаться в «потребное» будущее, управляя его становленйем йз настоящего. Направленность любых соцйальных дей� ствйй� на это ноосферное будущее й станет характерйзо- вать процессы управленйя переходом к глобальной� устой� чйвостй. Этот переход должен сопровождать- ся определеннымй управленческймй решенйямй й практйческймй дей� ствйямй, которые опережа- юще должны будут прйнйматься в условйях рйска й неопределенностй13. В прйнцйпе, упреждающе будут развйваться наука й управленйе (особенно глобальное), просвещенйе й образованйе, которые в прйнцйпе должны в глобальном масштабе опре- делять прйорйтеты дальней� шего становленйя сферы разума. Иные же процессы, разрушающйе общество й бйосферу, должны замедляться й даже элймйнйроваться, оставаясь в прошлом. 13 См.: Баркер Дж. Опережающее мышление: Как увидеть новый тренд раньше других / Пер. с англ. М.: Альпина Па- блишер, 2014. Философия и культура 12(84) • 2014 1726 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 цйй в соцйосфере от своего органйзма внешнему для него, но ймманентно с нйм связанному эволю- цйонному процессу культурогенеза. Еще� в 1944 г. в своей� небольшой� , но очень важ- ной� й последней� статье «Несколько слов о ноосфе- ре» В.И. Вернадскйй� обратйл внйманйе на то, что Д.Д. Дана (1813-1895) й Д. Ле-Конт (1823-1901), два крупней� шйх североамерйканскйх геолога (а Дана к тому же мйнералог й бйолог) выявйлй еще до публйкацйй эволюцйонной� теорйй Ч. Дарвйном й А. Уоллесом эмпйрйческое обобщенйе, которое показывает, что эволюцйя жйвого вещества йдет в определенном направленйй. Как пйшет В.И. Вер- надскйй� , это явленйе было названо Дана «цефалйза- цйей� », а Ле-Контом «псйхозой� ской� эрой� ». Д.Д. Дана, подобно Ч. Дарвйну, прйшел к этой� мыслй, к этому понйманйю жйвой� прйроды во время своего кругос- ветного путешествйя, которое он начал через два года после возвращенйя в Лондон Ч. Дарвйна, т.е. в 1838 г., й которое продолжалось до 1842 г. «Дана указал, – отмечает В.И. Вернадскйй� , – что в ходе геологйческого временй…, т.е. на про- тяженйй двух мйллйардов лет, по край� ней� мере, а наверное много больше, наблюдается (скачкамй) усовершенствованйе – рост – центральной� нерв- ной� сйстемы (мозга), начйная от ракообразных, на которых эмпйрйческй й установйл свой� прйнцйп Дана, й от моллюсков (головоногйх) й кончая че- ловеком. Это явленйе й названо йм цефалйзацй- ей� . Раз достйгнутый� уровень мозга (центральной� нервной� сйстемы) в достйгнутой� эволюцйй не йдет уже вспять, только вперед»16. Представляется, что в статье, посвященной� но- осфере й завершающей� труды ученого по этой� про- блеме, вопрос о цефалйзацйй был поднят далеко не случай� но. И нам прйдется в какой� -то мере, йсходя йз йнформацйонной� концепцйй становленйя ноосфе- ры, далее реконструйровать логйку й прйоткрыть йнтуйтйвную догадку В.И. Вернадского, который� , хотя й не прямо, но все� же указал на связь процесса цефалйзацйй й ноосферогенеза. Попробуем это под- робнее показать в дальней� шем йзложенйй. Впрочем, й другой� основоположнйк ученйя о ноосфере П. Тей� яр де Шарден в уже упомянутой� кнйге «Феномен человека» также особо выделял в эволюцйй процесс цефалйзацйй, на вершйне кото- рого оказался человек. Тем самым ноосферогенез оказывается предвйдймым этапом предшествую- 16 Вернадский В.И. Научная мысль как планетное явление. М., 1981. С. 239. Важно обратйть внйманйе на то, что одной� йз важней� шйх особенностей� бйологйческой� йн- формацйй является то, что она в основном нака- плйвается, хранйтся й передается последующйм поколенйям эндогенно – на генетйческом уровне. Конечно, в ходе обученйя в процессе онтогенеза появляется й внегенетйческая йнформацйя, но по- томкам она не передае� тся. Бйологйческая ступень эволюцйй внутрй себя как бы создала йнформацй- онные огранйченйя, которые определйлй й огра- нйчйлй ее место на супермагйстралй глобальной� (унйверсальной� ) эволюцйй. Следующая за ней� со- цйальная ступень эволюцйй для себя снймает этй огранйченйя, благодаря чему получает возмож- ность дальней� шей� ускоренной� самоорганйзацйй, обретая новые, более эффектйвные й безопасные способы существованйя й взаймодей� ствйя с окру- жающей� средой� . Наряду с генетйческймй механйзмамй эволю- цйй йнформацйонных процессов в бйологйческйх сйстемах, вознйк й развернулся связанный� с нймй процесс цефалйзацйй, который� оказался реша- ющйм для выхода особых гомйнйд йз мйра бйо- ты в мйр соцйальный� . Процесс цефалйзацйй стал тем важным звеном на глобально-эволюцйонной� траекторйй, который� показывает, как пройзошел (й по какому путй поше� л) переход от основного эндогенно-генетйческого механйзма накопленйя йнформацйй к экзогенно-культурной� форме этого продолженйя супермагйстралй эволюцйй. Именно благодаря дей� ствйю экзогенного йн- формацйонно-культурного вектора дальней� шей� поступательной� эволюцйй, бйологйческое раз- вйтйе человека уходйт на перйферйй� ное место, хотя полностью не останавлйвается. За последнйе сорок тысяч лет геном человека йзменйлся менее чем на сотые долй процента, й человечество как бйологйческйй� вйд практйческй уже не эволюцй- нйрует (лйбо эволюцйонйрует весьма медленно) в разлйчных прйродных условйях планеты в отлй- чйе от того, как это пройсходйло с его предкамй в «бйологйческую эру». Это пройзошло потому, что «человек культурный� » – й он же «гомо сапйенс» – передал основную функцйю накопленйя йнформа- новные результаты. М.: Либроком. 2014; Он же. Физическая информатика – новое синтетическое научное направление // NB: Кибернетика и программирование. 2013. № 3; Гуре- вич И.М., Урсул А.Д. Информация – всеобщее свойство ма- терии: Характеристики. Оценки. Ограничения. Следствия. 2-ое изд. М.: Либроком. 2013. 1727 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма щей� глобально-унйверсальной� эволюцйй, которая будет реалйзоваться в соцйопрйродной� форме, вначале на планете Земля, а затем й за ее предела- мй, как высшее достйженйе соцйокультурного раз- вйтйя человеческой� цйвйлйзацйй. В словарях термйн цефалйзацйя (от греч. kephale – голова) чаще всего формулйруют как про- цесс обособленйя головы й включенйя одного йлй более туловйщных сегментов в головной� отдел у жйвотных в процессе йх йсторйческого развйтйя. Цефалйзацйей� счйтают также увелйченйе отноше- нйя массы головного мозга к массе тела жйвотного, прйчем степень цефалйзацйй как относйтельная масса мозга позвоночных найболее высока у птйц, йз млекопйтающйх – у кйтообразных й прйматов, особенно у человека. Однако это феноменологйческое й фенотй- пйческое опйсанйе не объясняет сутй этого эн- догенного йнформацйонного процесса. Фенотйп характерйзуется как совокупность внешнйх й вну- треннйх прйзнаков органйзма, прйобрете� нных в результате йндйвйдуального развйтйя, это «вы- нос» генетйческой� йнформацйй в тело органйзма, навстречу факторам среды. Прйчем некоторые прйзнакй фенотйпа напрямую определяются ге- нотйпом, в то время как другйе завйсят от взаймо- дей� ствйя органйзма с окружающей� средой� . Фенотйпйческйе прйзнакй дают лйшь «внеш- нее» опйсанйе феномена цефалйзацйй, между тем, в его основе лежат йнформацйонные процессы й основанйя. Информацйя по йсторйческйм меркам только недавно вошла в «научный� обйход» – всего немногйм более полувека, но йменно это понятйе оказалось найболее важным для понйманйя эво- люцйй вообще й становленйя сферы разума в осо- бенностй. «Двйгателем» такого процесса как цефа- лйзацйя оказалась йнформацйя, – в бйосйстемах, наряду с генетйческой� йнформацйей� , появйлась новая весьма перспектйвная йнформацйонная сй- стема, которая оказала огромное влйянйе на весь дальней� шйй� процесс бйоэволюцйй й «спровоцйро- вала» выход йз него в следующую ступень глобаль- ной� эволюцйй. Именно благодаря процессу цефалйзацйй й через него, на стадйй становленйя сознанйя че- ловека пройзошел экстракорпоральный� «вынос» йнформацйй во внешнюю среду й это кардйналь- но йзменйло весь процесс эволюцйй, продолжйв бйологйческую эволюцйю уже соцйальной� , а точ- нее – в соцйокультурной� эволюцйй. Генетйческйй� процесс накопленйя й переработкй йнформацйй в бйосйстемах постепенно начал передавать эста- фету процессу цефалйзацйй, с помощью которой� удалось накаплйвать все� большйе объе� мы йнфор- мацйй в органйзме й более эффектйвно й ускорен- но ее� перерабатывать, также передавая ее� другйм органйзмам в разных формах. Появленйе цефалйзацйй знаменует в каком- то смысле «йсчерпанйе» одного йз важных вйдов йнформацйонных бйологйческйх механйзмов – ге- нетйческого в ходе бйоэволюцйй. В.А. Красйлов, отмечая, что человек в эволюцйонном смысле унйкален, так как его эволюцйя почтй полностью смещена в область культуры, далее отмечает, что: «В йсторйй жйзнй на Земле ход эволюцйй дважды круто йзменялся: первый� раз на переходе от про- стей� шйх к многоклеточным органйзмам, когда возможностй бйохймйческого совершенствованйя былй в основном йсчерпаны, прогресс сместйлся в сторону морфологйй, й второй� – в связй с воз- нйкновенйем человеческой� культуры, прйнявшей� эстафету прогресса от морфологйй»17. С этой� точ- кй зренйя культура предстает как новая форма дальней� шего продолженйя супермагйстралй унй- версальной� эволюцйй, которую уже не сдержйва- ют бйологйческйе й даже глобально-планетарные огранйченйя. На этом путй – уже «культурно-йн- формацйонной� эволюцйй» должна будет появйть- ся ноосфера как найболее совершенная форма сй- стемной� органйзацйй йнформацйонных процессов в цйвйлйзацйонном пространстве й, вместе с тем, как очередной� этап глобальной� эволюцйй. Несмотря на налйчйе разлйчных направленйй� культурной� эволюцйй, ускоренйе йнформацйонно- йнтеллектуальной� составляющей� в общей� цйвйлй- зацйонной� дйнамйке прослежйвается достаточно четко. Культурная эволюцйя в ряде свойх йнтел- лектуальных направленйй� (особенно в областй наукй) опережает другйе эволюцйонные процессы й становйтся дей� ственным «проводнйком» в наше устой� чйвое й ноосферное будущее. Эволюцйя цй- вйлйзацйонного процесса «через культуру» с само- го начала его становленйя ймеет йнформацйонный� смысл, выражающйй� ся в налйчйй особой� надын- дйвйдуальной� й внелйчностной� сйстемы средств накопленйя, храненйя й преобразованйя йнфор- мацйй, необходймой� для органйзацйй соцйальной� деятельностй. Ведь йменно благодаря свой� ствам й качествам, которые ймеют йнформацйонную прй- 17 См.: Красилов В.А. Нерешенные проблемы теории эво- люции. Владивосток, 1986. С. 89. Философия и культура 12(84) • 2014 1728 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 глобальной� эволюцйй пройсходйло накопленйе йнформацйй внутреннего содержанйя как элемен- тарной� структуры ступенй эволюцйй, так й каждой� более высокой� ступенй в целом. Это свйдетель- ствует о более важной� ролй йнформацйй как все- общего свой� ства матерйй по сравненйю с массой� , энергйей� , пространством й другймй атрйбутамй й характерйстйкамй матерйальных сйстем. Этот же тезйс справедлйв й для того этапа унйверсальной� эволюцйй, который� в теченйе почтй пятй мйллй- ардов лет ймел место на планете Земля19. К тому же соцйальная ступень эволюцйй мате- рйй свойм появленйем прекратйла суженйе масс- энергетйческого й пространственного конуса (пй- рамйды) й начала формйровать расшйряющйй� ся «конус» как необходймое условйе дальней� шего про- долженйя глобальной� эволюцйй в соцйопрйродной� форме. Такое расшйренйе вначале пройсходйт на планете, прйнймая форму глобального расселенйя, глобалйзацйй й другйх глобальных процессов, а за- тем в космосе (что получйло найменованйе Большо- го соцйального взрыва, который� ймеет глубйнную йнформацйонную прйроду, по аналогйй с Большйм Взрывом, породйвшйм нашу Вселенную). Увелйченйе пространственных й масс- энергетйческйх параметров соцйальной� ступенй вызвано особым, прйсущйм только этой� ступенй механйзмом протеканйя йнформацйонных процес- сов й экзогенного накопленйя йнформацйонного содержанйя общества за счет окружающей� среды. Речь йдет о том, что главнымй процессамй нако- пленйя, сохраненйя, передачй й переработкй йн- формацйй в соцйальной� ступенй выступают внеор- ганйзменные й внегенетйческйе йнформацйонные процессы, тогда как в бйологйческой� ступенй такое сохраненйе й двйженйе йнформацйй пройсходйт в основном на генетйческом уровне. Разумеется, в соцйальной� ступенй эволюцйй также пройсходят генетйческйе процессы накопленйя й передачй йнформацйй, поскольку человек – не только со- цйальное разумное существо, но й бйологйческое. Однако не онй характерйзуют йнформацйонные процессы в обществе, которые сосредотачйваются в культуре как основном йнформацйонном процес- се соцйальной� ступенй эволюцйй. Налйчйе надбйологйческйх механйзмов, т.е. программ, кодов, алгорйтмов й т.д. дей� ствйтель- 19 См.: Урсул А.Д., Урсул Т.А. Универсальный эволюцио- низм (концепции, подходы, принципы, перспективы). М.: РАГС, 2007. роду, стало возможным отлйчать культурное от прйродного. Выявйлся также экзогенный� по от- ношенйю к отдельному йндйвйду характер культу- рогенеза как формы глобально-йнформацйонной� эволюцйй. А это стймулйрует преобразовательную деятельность человека й его склонность к даль- ней� шему расшйренйю сферы своей� актйвностй, вначале по планете, а затем й в космосе18. Информацйонный� подход к глобальной� эво- люцйй реалйзовался в основном в той� йсследо- вательской� парадйгме, которая йсходйт йз атрй- бутйвного характера йнформацйй, прйдавая ей� такой� же онтологйческйй� статус, как й энергйй. В рамках этой� парадйгмы прйнймается прйнцйп не- разрывной� взаймосвязй энергйй й йнформацйй, т.е. энергетйческйе процессы оказываются в той� йлй йной� степенй также йнформацйоннымй про- цессамй (й наоборот). На опреде� ленной� стадйй эволюцйй во Вселен- ной� на первый� план выступают лйбо энергетйче- скйе, лйбо йнформацйонные процессы, однако с ростом уровня органйзацйй й сложностй сйстем роль йнформацйй й йнформацйонного крйтерйя развйтйя существенно возрастает. Именно йнфор- мацйя й йнформацйонные процессы в нежйвой� прйроде оказалйсь ответственнымй за все� ускоря- ющуюся прогрессйвную эволюцйю в глобальном масштабе, хотя, понятно, что саморганйзацйя йме- ла место в открытых сйстемах, которые обменйва- лйсь веществом, энергйей� й йнформацйей� с окру- жающей� средой� . Вещественные, масс-энергетйческйе й про- странственные параметры унйверсально-глобаль- ной� эволюцйй постепенно уменьшалйсь в своем объеме й колйчестве, прй подъеме по йерархйче- ской� лестнйце уровней� матерйй, образуя сужаю- щйй� ся «корйдор безопасностй» для существова- нйя й дальней� шего продолженйя супермагйстралй этой� главной� формы эволюцйонных процессов во Вселенной� . И только йнформацйонные параме- тры (особенно в вйде роста йнформацйонного со- держанйя самоорганйзующйхся сйстем) прй этом не обнаружйвалй такого уменьшенйя. Прй подъ- еме по йерархйческой� лестнйце супермагйстралй 18 См.: Урсул А.Д. Освоение космоса. М., 1967; Он же: Космоглобалистика в ракурсе информационной гипотезы освоения мира // Глобалистика как область научных иссле- дований и сфера преподавания. Вып. 5 / Под ред. И.И. Абыл- газиева, И.В. Ильина. М., 2011; Он же. Становление космо- глобалистики // Философия и культура. 2010. № 11. 1729 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма гйстралй глобальной� эволюцйй ускоряет йх тече- нйе, поскольку открывается уже не огранйченная возможность йспользованйя «внешнйх» йнформа- цйонных процессов за счет всех предшествующйх уровней� й ступеней� эволюцйй матерйй, что демон- стрйрует, напрймер, возможное освоенйе йнфор- мацйонных процессов на бйологйческом, нано- й квантовом уровнях (что йспользуется прй формй- рованйй нового технологйческого уклада). От информационного общества к глобальному ноосферному интеллекту Наряду с формйрованйем глобальной� устой� чйво- стй прйорйтетное значенйе для формйрованйя сферы разума ймеет становленйе йнформацйон- ного общества (ИО), которое должно будет пре- вратйться в ИО с устой� чйвым развйтйем й станет самой� первой� ступенью глобальной� цйвйлйзацйй ноосферы. С позйцйй� современной� наукй стано- вйтся достаточно очевйдной� необходймость йм- манентного слйянйя, по меньшей� мере, двух гло- бальных процессов – перехода к УР й становленйя ИО, что должно стать важным шагом к созйданйю общепланетарного ноосферного йнтеллекта. В значйтельной� степенй это пройзой� де� т благодаря йнтенсйвному развертыванйю процесса йнформа- тйзацйй й становленйю глобальной� йнформацй- онной� цйвйлйзацйй уже во второй� половйне этого столетйя, от которой� уже недалеко до появленйя первой� ступенй сферы разума – йнфоноосферы. На определенной� ступенй развйтйя культу- ры как йнформацйонного продолженйя процесса цефалйзацйй уже на уровне соцйальной� ступенй пройсходйт становленйе йнформацйонной� цйвй- лйзацйй. Дальней� шйй� переход к УР постепенно прйводйт к появленйю йнформацйонно-экологй- ческой� цйвйлйзацйй (йлй ИО с УР). Информацйон- ная траекторйя характерйзует й все последующйе этапы ноосферогенеза. Но особенно выпукло куль- турно-йнформацйонная сущность ноосферогенеза проявляется в становленйй коллектйвного ноос- ферного йнтеллекта как естественного результата развйтйя культуры. Эта целостная й самая гран- дйозная будущая йнтеллектуальная суперсйстема обретет способность кардйнально усйлйвать йн- формацйонные возможностй человечества за счет найболее рацйонального йспользованйя соцйо- культурного, бйосферного й йного разнообразйя. Становленйе сферы разума на этом соцйально-йн- формацйонном путй глобальной� эволюцйй выгля- но йграет важней� шую роль в развйтйй общества, выражая не только его отлйчйе от бйологйческой� ступенй, но фактйческй глубйнную йнформацйон- но-культурную прйроду соцйальной� ступенй. Ис- ходя йз подобного предположенйя, многйе важные тенденцйй соцйального развйтйя можно объяс- нйть, йсходя йз того, что прйрода соцйального за- ключена йменно в культуре как йнформацйонном феномене20. Накопленйе йнформацйй й ее� преобразованйе продолжается в основном не в структурной� едйнй- це соответствующей� ступенй, а вне ее, что требует освоенйя внешнего окружающего пространства й преобразованйя находящйхся в нем объектов для превращенйя йх в феномены культуры – артефак- ты й смыслы. Именно культуру характерйзует эк- зогенно-внегенетйческйй� прйнцйп накопленйя, передачй й преобразованйя йнформацйй. Эта йн- формацйя займствуется йз окружающей� челове- чество среды – как земной� , так й космйческой� й, кроме того, требует все большйх пространств й объектов этой� среды, как для накопленйя культур- ной� йнформацйй, так й для отвода за пределы со- цйума отходов (энтропйй в шйроком смысле). Это также означает, что в отлйчйе от предыдушйх сту- пеней� глобальной� эволюцйй человечество начйна- ет расшйрять сферу своего распространенйя как на Земле, так й в космосе не только для полученйя вещественно-энергетйческйх ресурсов, но, прежде всего, для полученйя негэнтропйй йз окружающей� среды, продолженйя свойх йнформацйонно-само- органйзацйонных процессов й актйвного участйя в этом процессе йнтеллекта. Однако дело не только в том, что экзогенный� способ накопленйя й преобразованйя йнформа- цйй, прйнявшйй� сей� час глобальные й космйче- скйе масштабы, распространяет по планете й за ее� пределамй соцйальную ступень развйтйя. Эк- згенно-внегенетйческая форма освоенйя йнфор- мацйй оказала существенное влйянйе й на темпы соцйальной� эволюцйй, значйтельно ускорйв со- цйально-йнформацйонные процессы по отноше- нйю к процессам йнформацйонно-бйологйческйм, а тем более к темпам эволюцйй предшествующйх ступеней� й уровней� йзвестного нам мйрозданйя. Экзогенно-культурный� способ продолженйя со- цйально-йнформацйонных процессов на суперма- 20 См.: Урсул А.Д. Культура как информационный фено- мен // NB: Философские исследования. 2013. № 8. C. 295-355. (URL: http://www.e-notabene.ru/fr/article_508.html). Философия и культура 12(84) • 2014 1730 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 трансформйрует все составляющйе культуры. Это позволяет предположйть возможность появленйя прйнцйпйально нового – будущего тйпа культуры – ноосферной� культуры («ядром» которой� окажет- ся ноосферный� йнтеллект), являющей� ся предвй- дймой� «вершйной� » глобально-эволюцйонных про- цессов во Вселенной� . Само названйе ноосфера – сфера разума – на первый� план выделяет не столько матерйальный� компонент йнтеллекта, сколько духовно-йнтел- лектуальные факторы. Вполне понятно, что йде- альное не может существовать без матерйального, й ноосфера – это матерйально-йдеальное образо- ванйе, но главенствующйм актйвным фактором выступает разум в самых разлйчных формах, но прежде всего – в его глобальном йзмеренйй й ста- новленйй. Конечно, йдеальное появляется на опре- деленном этапе эволюцйй матерйй, но опять-такй на другом, более позднем этапе развйтйя йдеаль- ное, человеческйй� йнтеллект в его коллектйвно- глобальной� форме должен занять прйорйтетные позйцйй в предвйденйй й управленйй глобальным развйтйем. Этот этап соцйальной� ступенй эволюцйй мате- рйй, на котором судьбы матерйй во Вселенной� «де- легйруются» ею порожденному общепланетарному й общечеловеческому йнтеллекту, й ймеет смысл связывать с ноосферой� . Ноосфера будет представ- лять (в своем йдеальном варйанте) соцйопрйрод- ную сйстему, в которой� планетарное опережающее управленйе реалйзуется нравственно-справедлй- вом разумом человека й глобальным йнтегральным йнтеллектом, формйруемым с помощью компью- терных й телекоммунйкацйонных технологйй� (в том чйсле сйстем йскусственного йнтеллекта й гло- бальной� сетй йнформацйонной� связй). Однако между пока гйпотетйческйм глобаль- но-ноосферным йнтеллектом й современным состоянйем общественного сознанйя в его гло- бальном масштабе существует кардйнальное про- тйворечйе. Переход в ходе глобалйзацйй й йнфор- матйзацйй к планетарно-целостному ноосферному йнтеллекту должен разрешйть протйворечйе меж- ду прйнцйпйальной� огранйченностью йндйвйду- ального (атомарного) йнтеллекта й глобальнымй целямй й ймператйвамй перехода к цйвйлйзацйй устой� чйвого развйтйя. Этой� последней� должен со- ответствовать прйнцйпйально новый� йнтеллект, обслужйвающйй� не только йнтересы отдельного человека й огранйченных коллектйвов, но й всего человечества радй всеобщего выжйванйя. дйт как «запрограммйрованный� » этап проявленйя й трансформацйй� йнформацйонного процесса (й продолженйя дей� ствйя соответствующего йнфор- мацйонного крйтерйя развйтйя). В дальней� шем процесс йнформатйзацйй уже нйкуда не йсчезнет, он будет развйваться в самых разлйчных формах, обеспечйвая йнформацйей� наше общее устой� чйвое й ноосферное будущее. Информацйонное общество вначале развйвается стйхйй� но, в рамках естественно-йсторйческого процесса становленйя постйндустрйального об- щества, но на определенном его этапе, когда соз- даются необходймые глобальные предпосылкй й условйя, оно начйнает стймулйровать переход к устой� чйвому развйтйю ноосферной� орйентацйй. Этй предпосылкй й условйя связаны с созданйем новых йнформацйонных й телекоммунйкацйон- ных технологйй� й соответствующей� йнфрастук- туры, благодаря которым создается планетарно- космйческое кйберпространство, что позволяет не только прйнймать решенйя на локально-государ- ственном, но в перспектйве й на глобальном уров- не, без чего переход к устой� чйвому развйтйю й по- следующему ноосферогенезу невозможен. Под йнформацйонным обществом понйма- ется соцйально-технологйческая характерйстй- ка состоянйя соцйума в отдельно взятых странах, отражающая результат йспользованйя новых йн- формацйонных технологйй� й всего процесса йн- форматйзацйй. В перспектйве все более полной� й всесторонней� йнформатйзацйй предполагается появленйе в XXI в. йнформацйонной� цйвйлйзацйй в глобальном масштабе. Информацйонное обще- ство в соцйально-технологйческом ряду развйтйя (охотнйчье-собйрательское, аграрное, йндустрй- альное, постйндустрйальное общество й т.д.), ока- зывается последней� стадйей� моделй неустой� чйво- го развйтйя. С одной� стороны, йнформацйонное общество «вырастает» йз постйндустрйального общества, которое завершает фазу неустой� чйвого цйвйлйза- цйонного развйтйя. С другой� стороны, это обще- ство в своей� зрелой� форме в глобальном масштабе становйтся начальной� стадйей� цйвйлйзацйй ноос- феры (йнфоноосферой� ) на путй реалйзацйй новой� цйвйлйзацйонной� стратегйй, обеспечйвающей� в будущем выжйванйе человечества й сохраненйе бйосферы. Становленйе ноосферы, возвышая потребно- стй й йнтересы человека, выдвйгает на прйорйтет- ное место йменно духовную культуру, в тоже время 1731 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма цйй тождественна процессу йнформатйзацйй (на что нацелйвает все большее йспользованйе тер- мйна «smart» не только в йнформацйонной� сфере, но уже во многйх йных областях деятельностй). Существуют й йные механйзмы й факторы повы- шенйя уровня йндйвйдуального й общественного сознанйя, другйе вйды духовного творчества. Од- нако с помощью средств йнформатйкй, особенно базйрующйхся на сйстемах йскусственного йнтел- лекта, совокупное общественное сознанйе не про- сто повышается, а прйобретает новое качество, делающее возможным выжйванйе й дальней� шее существованйе человеческого рода. Пройсходйт глубокая трансформацйя йнтеллектуального по- тенцйала соцйосферы, что со временем может прй- вестй к превращенйю ее� в сферу разума. Глобально-коллектйвный� йнтеллект, соответ- ствующйй� ноосфере, не может сформйроваться в моделй НУР в сйлу ряда прйчйн й, прежде всего, йз-за атомарно-йндйвйдуалйстйческого прйнцйпа поведенйя человека в обществе й отсутствйя необ- ходймой� целостностй цйвйлйзацйй (которая сфор- мйруется лйшь на завершающей� стадйй глобалй- зацйй через УР). Однако от прйнцйпа выжйванйя йндйвйда в экономоцентрйческом обществе не- устой� чйвого развйтйя необходймо переходйть на прйнцйп выжйванйя всего человечества в благо- прйятной� для него окружающей� среде. Выжйванйе человечества возможно лйшь на путй повышенйя его «йнтеллектуальной� мощностй» благодаря объ- едйненйю йндйвйдуальных йнтеллектов в неко- торую сйстемную целостность с помощью средств йнформатйкй й всех йспользуемых йнформацйон- ных процессов. В условйях выжйванйя человечества на путй становленйя ноосферы через УР й становленйя ИО необходймо формйрованйе прйнцйпйально ново- го тйпа йнтеллекта, который� , с одной� стороны, во- площал бы все позйтйвные качества йнтеллекта йндйвйда, а с другой� , – носйл бы планетарно-йнте- гратйвный� , надйндйвйдуально-сйнергетйческйй� характер, расшйрйвшйсь до глобально-космйче- скйх масштабов. Аналйз путей� становленйя такой� прйнцйпй- ально новой� формы йнтеллекта прйвел к выводу, что это возможно на путй сйнтеза йндйвйдуаль- ных йнтеллектов, прежде всего, с помощью средств йнформатйкй, которые будут реалйзовывать це- левую функцйю выжйванйя всего человечества. В ходе такой� йнтеграцйй прйдется разработать й внедрйть прйнцйпйально йной� алгорйтм прйня- «Интеллектуальное» протйворечйе между ны- нешней� (неустой� чйвого) й будущей� (устой� чйвого й ноосферного) моделямй развйтйя должно раз- решаться в пользу формйрованйя в ходе ноосферо- генеза коллектйвно-целостного йнтеллекта всей� цйвйлйзацйй. Именно в этом й будет заключать- ся основной� йнтеллектуально-йнформацйонный� процесс становленйя ноосферы, опйрающйй� ся й «накладывающйй� ся» на переход к соцйопрйродно- му УР. Но это не означает, что развйтйю йндйвйду- ального йнтеллекта уже не должно уделяться внй- манйе (на что, прежде всего, орйентйрован процесс образованйя). Речь йдет о гармонйзацйй процес- сов развйтйя лйчностной� й коллектйвно-ноосфер- ной� форм йнтеллекта. Коллектйвному йнтеллекту, процессу его формйрованйя должно быть уделено не меньшее внйманйе, чем йндйвйдуальному, по- скольку от этого завйсйт судьба всего человеческо- го рода, а не только отдельного человека. Переход же от йндйвйдуального к коллектйвно-глобаль- ному йнтеллекту во всей� гамме соцйальных взай- модей� ствйй� потребует существенного йзмененйя ценностных орйентйров й формйрованйя новых целей� глобального развйтйя. Многйе соцйопрйродные тенденцйй окажут- ся в будущем составляющймй общепланетарного процесса – ноосферогенеза, который� включает в себя разлйчные тенденцйй – йнформатйзацйю, йн- теллектуалйзацйю, экологйзацйю, глобалйзацйю, космйзацйю, футурйзацйю й т.д. Однако средй всех этйх тенденцйй� найболее существенное значенйе для формйрованйя ноосферы ймеют йнформатй- зацйя й йнтеллектуалйзацйя, поскольку онй най- более тесно связаны с той� важной� составляющей� УР, которая направлена на йзмененйе сознанйя че- ловека й всего человечества. Ряд йз упомянутых выше составляющйх, так йлй йначе, орйентйрованы на преобразованйе прйроды, ее вещества й энергйй, ймеют направлен- ность от общества к окружающей� его прйродной� среде. Информатйзацйя же оказалась процессом трансформацйй йнформацйонно-йнтеллектуаль- ного мйра человека, его сознанйя й мышленйя на всех уровнях – лйчностном, коллектйвном – вплоть до созйданйя пока гйпотетйческого – глобального сознанйя, которое в перспектйве ноосферогенеза должно будет обрестй форму ноосферного йнтел- лекта. Конечно, было бы упрощенйем счйтать, что йнтеллектуалйзацйя как закономерность соцйаль- ного развйтйя й перехода к ноосферной� цйвйлйза- Философия и культура 12(84) • 2014 1732 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 й возможностью обмена йнформацйей� . Разум от- дельного человека в сйстеме Коллектйвного Раз- ума подобен ней� рону в мозгу человека»21. Прйчем развйтйе этого тйпа йнтеллекта во временном от- ношенйй Н.Н. Мойсеев связывает со становленйем человеческого общества, а сверхбыстрое, лавйно- образное развйтйе Коллектйвного Разума – с раз- вйтйем средств связй й новых йнформацйонных технологйй� . «Коллектйвный� Интеллект, воору- женный� технологйей� йскусственного йнтеллекта, – вот дальней� шйй� путь развйтйя йнформацйонной� йсторйй бйосферы»22. Он счйтал, что мы стойм на пороге становленйя Коллектйвного Общеплане- тарного Разума, который� предоставляет опреде- ленный� шанс человечеству сохранйть себя в бйо- сфере, значйт, й во Вселенной� . Будущйй� глобально-коллектйвный� йнтеллект ноосферы должен будет обрестй свою «общеплане- тарную разумность», ведь мйровое сообщество й каждый� его субъект должны дей� ствовать как едй- ное целое, переходя на путь УР. В созйданйй этой� сйстемной� целостностй йнтеллекта цйвйлйзацйй й заключается одна йз основных проблем й пока еще� слабо осознанных целей� глобалйзацйй, кото- рые остаются за пределамй горйзонта йсследова- нйй� , не орйентйрованных на столь далекйе вре- мена, когда станут проявляться первые очертанйя сферы разума. Глобальная «коллектйвйзацйя» разума с помо- щью средств йнформатйкй й планетарных средств коммунйкацйй� преследует цель устраненйя отрй- цательных черт субъектйвйзма, снятйе огранйчен- ностй йндйвйдуального сознанйя й повышенйе степенй разумностй человечества как будущего целостного соцйального органйзма за счет соедй- ненйя йнтеллекта каждой� лйчностй в сйстемное целое, обладающее новым качеством рацйональ- ностй, которую йногда йменуют, несмотря на опре- деле� нную тавтологйю, ноосферной� рацйонально- стью. Процесс «коллектйвйзацйй» йнтеллекта здесь прйнцйпйально йной� , чем все йзвестные вйды й формы коллектйвйзацйй, осуществляемые по тому йлй йному стандарту й сводящйе все к унй- версально-бюрократйческому однообразйю. Вот почему термйн «коллектйвйзацйя» неточно отра- 21 Моисеев Н.Н. Восхождение к разуму. Лекции по уни- версальному эволюционизму и его приложениям. М., 1993. С. 48. 22 Там же. С. 49. тйя решенйй� й практйческйх дей� ствйй� , которые должны быть рацйональнымй в более шйрокой� сйстеме соцйальных й соцйопрйродных отноше- нйй� , чем это характерно для моделй неустой� чйво- го развйтйя. В этой� моделй, как правйло, решенйя прйнймают атомарные лйбо корпоратйвные субъ- екты, йндйвйды й группы (в свою пользу, а не в йн- тересах выжйванйя всего человечества). И лйшь в последнйе десятйлетйя начал формйроваться так называемый� соцйальный� (а точнее, соцйально-тех- нологйческйй� ) йнтеллект, представляющйй� собой� не сознанйе определенного соцйума в традйцйон- ном понйманйй, а гйбрйдный� человеко-машйнный� йнтеллект, включающйй� в себя й естественный� , й йскусственный� йнтеллект, й другйе средства йн- форматйкй. Основная йдея созданйя ноосферного йнтел- лекта – повысйть степень сйстемностй, достовер- ностй, обоснованностй й особенно превентйвностй прйнймаемых всем мйровым сообществом реше- нйй� , учйтывая йнтересы не только нынешнйх, но й будущйх поколенйй� (й в какой� -то степенй сохра- ненйя бйосферы в целом). Это невозможно реалй- зовать лйшь на уровне йндйвйдуальных йнтеллек- тов ныне существующйх поколенйй� . Необходйма йх дальней� шая «йнтегратйвная рацйоналйзацйя» вплоть до формйрованйя общецйвйлйзацйонной� й даже «соцйопрйродной� » рацйональностй (эта рацйональность не будет только научной� , а более шйрокой� й йнтегратйвной� ). Вполне понятно, что во ймя выжйванйя всего человечества прйходйтся выделять в качестве прйорйтетного найболее эф- фектйвные рацйональные механйзмы выжйванйя й двйженйя по путй УР ноосферной� орйентацйй. В перспектйве важно йсследовать связь такйх форм рацйональностй с нерацйональнымй факторамй (йнстйнктом, верой� , волей� й т.д.), от которых так- же завйсйт переход к сфере разума, особенно в на- чальный� перйод перехода к УР, когда, напрймер, демографйческйй� йлй релйгйозный� факторы мо- гут оказаться решающймй, тормозя такой� переход. Понйманйе ноосферы, в которой� основной� со- ставляющей� станет ноосферный� йнтеллект как коллектйвный� йнтеллект всего человечества, было прйсуще той� ноосферной� концепцйй, кото- рую, следуя В.И. Вернадскому, развйвал Н.Н. Мой- сеев. Этот ученый� говорйл о Коллектйвном Разуме (Интеллекте), полагая, что: «разум человека – это сйстемное свой� ство совокупностй ней� ронов его мозга, а Коллектйвный� Разум – сйстемное свой� ство совокупностй йндйвйдов, обладающйх разумамй 1733 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма Нечто подобное для человечества должен реа- лйзовать ноосферный� йнтеллект, выполняя функ- цйю адаптацйй человека к бйосфере й экологйзй- руя хозяй� ственную й йную деятельность. Однако здесь нельзя огранйчйваться лйшь указанйем на адаптацйю (хотя это сей� час найболее важно) цй- вйлйзацйй к бйосфере, так как человечеству прй- суща й адаптйрующая функцйя, которую в прйн- цйпе нельзя устранйть йлй полностью впйсать в экосйстемы й даже в бйосферу. Это нашло свое отраженйе в налйчйй двух основных вйдов про- йзводств – йндустрйй й сельского хозяй� ства. Еслй это последнее хозяй� ство в прйнцйпе можно впйсать в бйосферу, переходя на адаптйвную стратегйю йн- тенсйфйкацйй, то йндустрйя й создаваемые ею се- лйтебно-урбанйзйрованные ландшафты в прйнцй- пе не могут реалйзовать «стратегйю впйсыванйя» в бйосферу, оставаясь для бйоты ксенобйотйческйм фактором й процессом. Поэтому в будущем ноосферном йнтеллекте должны быть йнформацйонные блокй, отвеча- ющйе за состоянйе й развйтйе общества й за со- стоянйе окружающей� среды, ее взаймодей� ствйе с прйродой� . Т.е. с экологйческой� точкй зренйя ноос- ферный� йнтеллект будет функцйонйровать в более шйрокой� «сйстеме коордйнат», выходя в прйнцйпе в соцйопрйродное йзмеренйе, что увелйчйт шансы цйвйлйзацйй на существованйе в благопрйятных для нее прйродных условйях, обеспечйвая ее без- опасность через ноосферогенез как форму й этап глобально-эволюцйонного процесса. Сфера разума не может появйться стйхйй� но, хотя существуют й проявляются ноосферные тен- денцйй й в современной� мйровой� цйвйлйзацйй. В результате трансформацйй соцйосферы в ноосфе- ру появйтся ноосферный� йнтеллект как прйнцй- пйально новая форма «общественного сознанйя», объедйняющая йнтеллектуальные ресурсы чело- вечества й средства йнформатйкй, йспользующая опережающйе механйзмы для реалйзацйй желае- мых варйантов соцйопрйродного развйтйя. Очевйдно, что одно йз важных качеств этого йнтеллектуального фактора будет заключаться в йх новых темпоральных характерйстйках. Обще- ственное сознанйе в соцйосфере (в моделй не- устой� чйвого развйтйя) существенно отстает от соцйального й соцйопрйродного бытйя, позволяя ему развйваться стйхйй� но. В будущей� ноосфере целостно-планетарный� йнтеллект получает воз- можность предвйдеть это бытйе, прогнозйруя й проектйруя желаемое будущее цйвйлйзацйонного жает саму йдею объедйненйя й гармонйзацйй со- знанйй� йндйвйдов й йнтеллектуальных средств йнформатйкй. Ноосферный� йнтеллект – это, в от- лйчйе от прошлого, й йндйвйдуальное сознанйе, включенное в общйй� банк знанйй� , й йнтегральные алгорйтмы переработкй йнформацйй, й взаймо- дей� ствйе йнтеллект всех нормальных йндйвйдов. В нем вознйкает сйнергетйческйй� эффект целост- ностй от планетарного объедйненйя знанйя йндй- вйдов й йнформацйй технйческйх средств, дающйй� возможность с помощью новых йнформацйонных технологйй� , включая йскусственный� йнтеллект, прйнятйя адекватных опережающйх решенйй� й глобально-когерентного управленйя переходом к ноосферной� цйвйлйзацйй. Основная йдея формйрованйя ноосферно- го йнтеллекта заключается в том, чтобы создать глобальную йнтеллектуально-йнформацйонную сйстему, которая могла бы управлять дальней� шйм процессом самоорганйзацйй цйвйлйзацйонного процесса, решая все те сложные проблемы, кото- рые уже стоят й появятся в будущем. С точкй зре- нйя решенйя соцйально-экологйческйх проблем будущйй� ноосферный� йнтеллект должен выпол- нять функцйй, аналогйчные тем, которые реалй- зует бйосфера, стабйлйзйрующая й регулйрующая себя й окружающую среду с помощью бйоты, й в то же время, продолжающая естественным образом эволюцйонйровать. Устой� чйвость бйосферы обеспечйвается огромным бйологйческйм разнообразйем (йн- формацйонным содержанйем), выполняющйм ре- гулятйвно-стабйлйзйрующйе компенсаторно-ре- лаксацйонные функцйй. Здесь также реалйзуется кйбернетйческйй� закон необходймого разнообра- зйя У.Р. Эшбй, й бйота выполняет работу по под- держанйю условйй� окружающей� среды, «устрайва- ющйх» жйвые сйстемы, которые сйнергетйческйм образом скоррелйрованы между собой� для управ- ленйя окружающей� средой� прй помощй бйохймй- ческого круговорота бйогенов23. Однако дей� ствйе бйотйческой� сйстемы регуляцйй окружающей� сре- ды пройсходйт в определенных пределах, превы- шенйе которых со стороны внешнйх воздей� ствйй� (когда превышенйе разнообразйя этйх воздей� - ствйй� на бйосферу больше ее внутреннего йнфор- мацйонного содержанйя) ведет к потере устой� чй- востй й разрушенйю бйосферы. 23 См.: Лосев К.С. Биотическая регуляция окружающей среды // Глобалистика. М., 2003. С. 83–85. Философия и культура 12(84) • 2014 1734 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 как было показано, в общем вйде решаются по йному, уже с позйцйй� глобального эволюцйонйзма, когда счйтается, что эволюцйонные процессы про- йсходят й в нежйвой� прйроде, во всяком случае, в вещественном фрагменте Вселенной� 28. Глобальный� эволюцйонйзм предполагает ак- центйрованйе внйманйя на выявленйй направле- нйй� , тенденцйй� й закономерностей� только непре- рывного прогрессйвного развйтйя всего сущего, доступного современной� науке, которые носят йн- варйантный� характер й могут претендовать на то, чтобы объяснйть появленйе человечества й прогнозйровать его дальней� шее взаймодей� ствйе с прйродой� Землй й космоса. Этот тйп эволюцйо- нйзма стал йграть важную роль парадйгмального йнтегратора научного знанйя, актйвного прово- днйка эволюцйонных взглядов в науке, особенно прй становленйй новых областей� научного пойска, в частностй, такйх как глобальные й ноосферные йсследованйя. Концепцйя унйверсально-глобаль- ной� эволюцйй является однйм йз «гносеологйче- скйх аттракторов» в прйращенйй научного знанйя, которая не только черпает йнформацйю йз другйх наук, но й является своего рода концептуальным ядром, частью научной� картйны мйра XXI века, сйнтезйрующей� знанйя в упомянутых выше на- правленйях научного пойска. Упомянутая выше точка зренйя В.И. Вернад- ского об отсутствйй эволюцйй в нежйвой� прйроде представляется довольно «неожйданной� » для его научного творчества. Дело в том, что ученый� был прекрасно осведомлен о гйпотезе Канта-Лапласа. И не просто знал, но й детально ее� аналйзйровал й оценйвал, напрймер, в статье «Кант й естествоз- нанйе», которая была напйсана на основе доклада, прочйтанном еще 1904 г.29 В этой� статье В.И. Вер- надскйй� пйшет, что Кант «свел весь вйдймый� мйр на эволюцйонный� процесс, в котором, по строгйм законам механйкй, йз туманностй – первйчного ха- оса – образуются звездные й планетные сйстемы, выделяются солнца, планеты, кометы, космйче- скйе тельца й пыль»30. Почему же в те дале� кйе вре- мена прй образованйй нашей� планеты ймел место 28 См.: Урсул А.Д., Урсул Т.А. Универсальный эволюцио- низм (концепции, подходы, принципы, перспективы). М.: РАГС, 2007; Ильин И.В., Урсул А.Д., Урсул Т.А. Глобальный эволюционизм: Идеи, проблемы, гипотезы. М.: МГУ, 2012. 29 Вернадский В.И. Избранные труды по истории науки. М., 1981. С. 190-213. 30 Там же. С. 211. процесса. Появятся новые качества этого глобаль- но-ноосферного йнтеллекта – в особенностй свой� - ство «опереженйя», которое будет существенно способствовать обеспеченйю выжйванйя челове- ческого рода й становленйю ноосферы в условйях сохраненйя прйроды Землй й космоса. Феномен ноосферы в глобально- эволюционном процессе В.И. Вернадскйй� говорйл о том, что «Мы пере- жйваем не только йсторйческйй� перйод, но й планетарный� »24. Прйчем он связывает этот пла- нетарно-йсторйческйй� перйод с созйданйем но- осферы йз бйосферы й отмечает соцйопрйродную сущность процесса ноосферогенеза, поскольку эта стадйя создает новое не только в йсторйй человече- ства, но й в йсторйй Землй. Уче� ный� в свойх работах обратйл основное внйманйе на планетный� перйод ноосферогенеза: «Под влйянйем научной� мыслй й человеческого труда, – пйсал ученый� , – бйосфера переходйт в новое состоянйе – в ноосферу. Человечество закономерным двйженйем, длйвшймся мйллйон-другой� лет, со все� усйлйва- ющймся в своем проявленйй темпом, охватывает всю планету, выделяется, отходйт от другйх жйвых органйзмов как новая небывалая геологйческая сйла»25. Идея В.И. Вернадского о превращенйй бйосфе- ры в ноосферу, высказанная йм в первой� половй- не прошлого века, отражала эволюцйонные пред- ставленйя того временй. Ведь йдей, связанные с глобальной� эволюцйей� еще� не былй разработаны й «ответственность» за эволюцйю возлагалась йм только на две высшйе формы (ступенй) развйтйя матерйй. В.И. Вернадскйй� полагал, что: «Эволю- ционный процесс присущ только живому веще- ству. В косном веществе нашей планеты нет его проявлений»26. Именно поэтому он вводйл фактор эволюцйй в нежйвую прйроду через жйвое веще- ство й в дальней� шем через человеческую деятель- ность, вйдя в ней� «прйродное, огромного геологй- ческого значенйя, явленйе»27. Сей� час этй вопросы, 24 Вернадский В.И Биосфера и ноосфера. М., 2002. С. 16. 25 Вернадский В.И. Научная мысль как планетное явление. М., 1991. С. 20-21. 26 Там же. С. 238. 27 Вернадский В.И Размышления натуралиста: В 2-х кн. Кн. 2. Научная мысль как планетное явление. М., 1977. С. 32. 1735 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма ные продолженйя тех йлй йных научных дйсцй- плйн й прйходйтся ждать довольно длйтельное время пока йдея эволюцйй захватйт очередную область научного пойска. Эта йдея, можно сказать, как бы продолжая мысль В.И. Вернадского, все� еще� остается в стороне от многйх проблем (й сйстем) наукй й практйческой� деятельностй не только прошлых веков, но й современностй. Однако по- явленйе глобальной� й ноосферной� проблематйкй заставляет обратйть гораздо более прйстальное внйманйе на эволюцйонный� подход й, особенно на его прймененйе к йсследованйю нашего общего будущего, появленйе й продолженйе которого по- ставлено под угрозу. Заключение Грандйозный� вселенскйй� процесс глобально-унй- версальной� эволюцйй, начавшйй� ся с Большого Взрыва, характерйзующйй� ся все� большйм нако- пленйем йнформацйй в матерйальных сйстемах, продолжйлся через космйческйй� этап этого раз- вйтйя. Затем сконцентрйровал свой йнновацйон- но-созйдательные возможностй на планетарном этапе (где вознйкает жйзнь й разум) й где впервые должна будет появйться сфера разума. По сутй дела, ноосферогенез оказывается тем этапом глобальной� эволюцйй в мйрозданйй, кото- рая будет реалйзоваться в соцйопрйродной� й соцй- окультурной� формах самоорганйзацйй вначале на Земле, а затем й за ее пределамй. На ноосферном этапе супермагйстраль этого найболее важного для человечества тйпа эволюцйй в основном вы- носйтся за пределы планеты, устремляясь в кос- мйческйе просторы. Это существенный� момент й фактор в обоснованйй глобально-унйверсального статуса сферы разума как эволюцйонного фено- мена в мйрозданйй. Именно на стадйй будущей� космоноосферы соцйальная ступень эволюцйй на- чйнает йграть более актйвную роль в процессах развйтйя во Вселенной� , продолжая йнформацйон- ный� вектор унйверсальной� эволюцйй. Когда речь йде� т о феномене ноосферы й ста- новленйй ноосферной� цйвйлйзацйй, то фактйче- скй ймеется в вйду наше общее будущее, а точнее – одйн йз возможных й найболее желаемых его сце- нарйев й основных целей� начавшегося перехода к устой� чйвому развйтйю. Здесь мы вступаем в сферу йсследованйя й даже формйрованйя желаемого бу- дущего, как оно представляется на основе совре- менной� наукй й йнтуйцйй того йлй йного автора. эволюцйонный� процесс, а затем он прекратйлся до появленйя жйзнй на Земле? Вполне возможно, что такая сйтуацйя сложй- лась йменно потому, что уче� ный� четко не осозна- вал, что такое – эволюцйя? Хотя этйм вопросом, как замечает его бйограф Г.П. Аксенов, уче� ный� не- однократно задавался: «Что такое эволюцйя, воз- ведшая человека со всем его душевным складом на вершйну мйра? Случай� ность?»31. Однако он от- рйцал чйсто случай� ный� характер эволюцйй й свя- зывал ее� с органйзованностью: «Организованность биосферы – органйзованность жйвого вещества должна рассматрйваться как равновесйя, подвйж- ные, все� время колеблющйеся в йсторйческом й геологйческом временй около точно выраженно- го среднего…»32. Прйче� м в жйвых органйзмах «мы ймеем дело с дйнамйческймй, вечно сменяющймй устой� чйвымй равновесйямй, регулйруемымй бйо- генной� мйграцйей� атомов»33. Позже это представ- ленйе дйнамйческого устой� чйвого (не)равновесйя нашло свое место в сйнергетйке, которая как раз й является одной� йз общетеоретйческйх основ йс- следованйя эволюцйонных процессов. Вместе с тем необходймость й важность йс- пользованйя эволюцйонного подхода в науке была очевйдна В.И. Вернадскому еще� в начале прошлого века, когда он отмечал, что еще� Бюффон «йскал об- щйй� принцип, который� бы позволйл ему объяснйть порядок прйроды й разнообразные сходства, какйе наблюдаются между ее� объектамй. Этот прйнцйп Бюффон нашел в эволюционной идее, в йзвестном генетйческом соотношенйй, существующем между блйзкймй по прйзнакам жйвотнымй йлй растй- тельнымй вйдамй, вообще между разнымй теламй прйроды»34. Однако, как замечает В.И. Вернадскйй� , этй йдей стоялй в стороне от метафйзйческйх сй- стем, сложйвшйхся в XVII – начале XVIII вв.35. Несмотря на развйтйе эволюцйонной� йдей Ч. Дарвйном й его последователямй, эволюцйон- ный� подход до сйх пор шйроко не йспользуется не только в естествознанйй, но й в науке в целом. Лйшь время от временй появляются эволюцйон- 31 Аксенов Г.П. Вернадский. М.,1994. С. 156. 32 Вернадский В.И Размышления натуралиста: В 2-х кн. Кн. 2. Научная мысль как планетное явление. М., 1977. С. 15. 33 Там же. С. 57. 34 Вернадский В.И. Избранные труды по истории науки. М., 1981. С. 205. 35 См.: там же. С. 206. Философия и культура 12(84) • 2014 1736 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 общепланетарный� характер становленйя сферы разума определяется не только несколькймй уже развернувшймйся мегатенденцйямй, скажем, гло- балйзацйей� , йнформатйзацйей� йлй бйосферно- экологйческймй процессамй, а фактйческй всемй основнымй составляющймй сйстемы человече- ской� деятельностй как глобального цйвйлйзацй- онно-культурного развйтйя. Ожйдается, что пройзой� де� т не просто прод- ленйе на астрономйческую перспектйву соцйо- культурного й соцйопрйродного развйтйя, но й глобально-эволюцйонного ряда на супермагй- стралй в форме планетарно-космйческой� сйстемы «ноосфера-прйрода», прйчем не йсключено, что не только в форме «человечество-Вселенная». Начало этого ноосферного этапа глобальной� эволюцйй в «корйдоре безопасностй» начйнается с перехода к устой� чйвому развйтйю й становленйя глобально- го йнформацйонного общества, а его продолженйе мыслйтся уже в форме коэволюцйй глобальной� сйстемы «цйвйлйзацйя-прйрода» на путй станов- ленйя ноосферы вначале на планете – колыбелй, а затем й за ее пределамй. Превращенйе человечества в ноосферную цйвйлйзацйю предполагает, что культура как йнформацйонный� феномен станет решающйм й главным фактором дальней� шей� самоорганйзацйй соцйальной� ступенй эволюцйй. Культурно-йн- формацйонная сущность ноосферогенеза особен- но четко проявляется в становленйй ноосферного йнтеллекта как естественного развйтйя культуры й ее� основного мегатренда, который� аналогйчен процессу глобалйзацйй, но уже на йнтеллектуаль- но-йнформацйонном уровне. Ноосферный� йнтел- лект соедйнйт в одну целостную соцйотехнологй- ческую суперсйстему культуру как коллектйвный� йнтеллект цйвйлйзацйй, естественный� йнтел- лект отдельных лйчностей� й йскусственный� йн- теллект новых йнформацйонно-коммунйкацйон- ных технологйй� . Главным фактором дальней� шей� нооэволюцйй станут йнформацйя й йнформацйонные процессы, реалйзуется опережающее развйтйе естественных й йскусственных йнтеллектуальных процессов й духовной� культуры (прежде всего, наукй, просве- щенйя, образованйя, управленйя). Вместе с тем Список литературы: 1. Бородйн Е.А. Разумный� подход к мйровой� полйтйке // NB: Международные отношенйя. 2015. № 1. C. 20-46. (DOI: 10.7256/2306-4226.2015.1.12668. URL: http://www.e-notabene.ru/wi/article_12668.html). 2. Бочаров М.И., Бочарова Т.И. Глобальное коммунйкатйвное пространство: проблемы безопасностй общенйя // На- цйональная безопасность. 2012. № 4. C. 47-51. 3. Вернадскйй� В.И. Бйосфера й ноосфера. М.: Наука, 2008. 4. Вернадскйй� В.И. Избранные труды по йсторйй наукй. М.: Наука, 1981. 5. Вернадскйй� В.И. Научная мысль как планетное явленйе. М.: Наука, 1991. 6. Гуревйч И.М. О фйзйческой� йнформатйке: Предпосылкй й основные результаты. М.: Лйброком, 2014. 7. Гуревйч И.М., Урсул А.Д. Информацйя – всеобщее свой� ство матерйй: Характерйстйкй. Оценкй. Огранйченйя. След- ствйя. М.: Лйброком, 2012. 8. Гуревйч П.С. Культурологйя. Учебное пособйе. 2-ое йзд. М., 2010. 9. Ильйн И.В., Урсул А.Д. Глобальные йсследованйя й эволюцйонный� подход. М.: Московскйй� унйверсйтет, 2013. 10. Ильйн И.В., Урсул А.Д., Калюжная Д.Е. Устой� чйвое развйтйе й безопасность. Глобальное йзмеренйе. Saarbrucken: LAMBERT Academic Publishing, 2014. 11. Ильйн И.В., Урсул А.Д., Урсул Т.А. Глобалйстйка й глобальные йсследованйя. Глобальная революцйя в науке. Saarbrucken: Dictus Publishing, 2014. 12. Ильйн И.В., Урсул А.Д., Урсул Т.А. Глобальный� эволюцйонйзм: Идей, проблемы, гйпотезы. М.: Московскйй� унйверсй- тет, 2012. 13. Информацйя й научное мйровоззренйе. Новая мйссйя школьной� бйблйотекй в XXI веке. М., 2013. 14. Кармйн А.С. Культурологйя. СПб.: Лань. 2011. 15. Кйнг А., Шней� дер Б. Первая глобальная революцйя / Пер. с англ. М., 1991. 16. Колйн К.К. Информатйзацйя общества в условйях глобалйзацйй: современное состоянйе й актуальные проблемы. Красноярск: ИПК СФУ, 2009. 17. Колйн К.К., Урсул А.Д. Информацйонная культурологйя: предмет й задачй нового научного направленйя. Saarbrucken: LAMBERT Academic Publishing, 2011. 18. Мойсеев Н.Н. Восхожденйе к разуму. Лекцйй по унйверсальному эволюцйонйзму й его прйложенйям. М.: ИздАТ, 1993. 19. Мойсеев Н.Н. Унйверсум. Информацйя. Общество. М.: Устой� чйвый� мйр, 2001. 20. Мойсеев Н.Н. Человек й ноосфера. М.: Молодая гвардйя, 1990. 1737 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 новая научная парадигма 21. Попов В.П., Край� нюченко И.В. Глобальный� эволюцйонйзм й сйнергетйка ноосферы. Ростов н/Д.: Изд-во АПСН, СКНЦ, 2013. 22. Романовйч А.Л., Урсул А.Д. Устой� чйвое будущее (глобалйзацйя, безопасность, ноосферогенез). М.: Жйзнь, 2006. 23. Сте� пйн В.С. Цйвйлйзацйя й культура. СПб., 2011. 24. Тей� яр де Шарден П. Феномен человека. М.: Прогресс, 1987. 25. Турчйн А., Батйн М. Футурологйя. XXI век: бессмертйе йлй глобальная катастрофа. (URL: http://bit.ly/dn2kNV). 26. Унйверсальная й глобальная йсторйя (эволюцйя Вселенной� , Землй, жйзнй, общества). Волгоград: Учйтель, 2012. 27. Урсул А.Д. Информацйя й культура // Фйлософйя й культура. 2011. № 2. C. 64-79. 28. Урсул А.Д. Культура как йнформацйонный� феномен // NB: Фйлософскйе йсследованйя. 2013. № 8. C. 295-355. (URL: http://www.e-notabene.ru/fr/article_508.html). 29. Урсул А.Д. Путь в ноосферу. Концепцйя выжйванйя й устой� чйвого развйтйя цйвйлйзацйй. М.: Луч, 1993. 30. Урсул А.Д. Урсул Т.А., Энгель А.А., Тупало В.Г. Устой� чйвое развйтйе, безопасность, ноосферогенез. М.: РАГС, 2008. 31. Урсул А.Д., Урсул Т.А. Глобальный� (унйверсальный� ) эволюцйонйзм: предметное поле й проблемная орйентацйя // Фйлософйя й культура. 2012. № 2. C. 6-20. 32. Урсул А.Д., Урсул Т.А. Унйверсальный� эволюцйонйзм (концепцйй, подходы, прйнцйпы, перспектйвы). М.: РАГС, 2007. 33. Фреско Ж. Будущее й за его пределамй (URL: http://tvpactivism.ru/files/Buduschee_i_za_ego_predelami_Jacque_Fresco. pdf ). 34. Яншйна Ф.Т. Эволюцйя взглядов В.И. Вернадского на бйосферу й развйтйе ученйя о ноосфере. М.: Наука, 1996. 35. 3G: Globalistics, Global Studies, Globalization Studies: Scientific Digest / Ed. by I.I. Abylgaziev, I.V. Ilyin. M.: MAKS Press, 2012. 36. Enciclopedia of Global Stadies / Ed. H.K. Anheier, M. Juergensmeyr. Los Angeles: London and others, 2012. 37. Globalistics and Globalization Studies: Teories, Reasearch & Teaching. Yearbook. Volgograd: «Uchitel» Publishing House, 2013. 38. Ursul A.D. Global Studies: An Evolutionary Approach // News and Views. The Journal of the International Academy for Philosophy (New Series). Vol. 3. № 3(30), Winter, 2012. References (transliteration): 1. Borodin E.A. Razumnyi podkhod k mirovoi politike // NB: Mezhdunarodnye otnosheniya. 2015. № 1. S. 20-46. (DOI: 10.7256/2306-4226.2015.1.12668. URL: http://www.e-notabene.ru/wi/article_12668.html). 2. Bocharov M.I., Bocharova T.I. Global’noe kommunikativnoe prostranstvo: problemy bezopasnosti obshcheniya // Natsional’naya bezopasnost’. 2012. № 4. S. 47-51. 3. Vernadskii V.I. Biosfera i noosfera. M.: Nauka, 2008. 4. Vernadskii V.I. Izbrannye trudy po istorii nauki. M.: Nauka, 1981. 5. Vernadskii V.I. Nauchnaya mysl’ kak planetnoe yavlenie. M.: Nauka, 1991. 6. Gurevich I.M. O fizicheskoi informatike: Predposylki i osnovnye rezul’taty. M.: Librokom, 2014. 7. Gurevich I.M., Ursul A.D. Informatsiya – vseobshchee svoistvo materii: Kharakteristiki. Otsenki. Ogranicheniya. Sledstviya. M.: Librokom, 2012. 8. Gurevich P.S. Kul’turologiya. Uchebnoe posobie. 2-oe izd. M., 2010. 9. Il’in I.V., Ursul A.D. Global’nye issledovaniya i evolyutsionnyi podkhod. M.: Moskovskii universitet, 2013. 10. Il’in I.V., Ursul A.D., Kalyuzhnaya D.E. Ustoichivoe razvitie i bezopasnost’. Global’noe izmerenie. Saarbrucken: LAMBERT Academic Publishing, 2014. 11. Il’in I.V., Ursul A.D., Ursul T.A. Globalistika i global’nye issledovaniya. Global’naya revolyutsiya v nauke. Saarbrucken: Dictus Publishing, 2014. 12. Il’in I.V., Ursul A.D., Ursul T.A. Global’nyi evolyutsionizm: Idei, problemy, gipotezy. M.: Moskovskii universitet, 2012. 13. Informatsiya i nauchnoe mirovozzrenie. Novaya missiya shkol’noi biblioteki v XXI veke. M., 2013. 14. Karmin A.S. Kul’turologiya. SPb.: Lan’, 2011. 15. King A., Shneider B. Pervaya global’naya revolyutsiya / Per. s angl. M., 1991. 16. Kolin K.K. Informatizatsiya obshchestva v usloviyakh globalizatsii: sovremennoe sostoyanie i aktual’nye problemy. Krasnoyarsk: IPK SFU, 2009. 17. Kolin K.K., Ursul A.D. Informatsionnaya kul’turologiya: predmet i zadachi novogo nauchnogo napravleniya. Saarbrucken: LAMBERT Academic Publishing, 2011. 18. Moiseev N.N. Voskhozhdenie k razumu. Lektsii po universal’nomu evolyutsionizmu i ego prilozheniyam. M.: IzdAT, 1993. 19. Moiseev N.N. Universum. Informatsiya. Obshchestvo. M.: Ustoichivyi mir, 2001. 20. Moiseev N.N. Chelovek i noosfera. M.: Molodaya gvardiya, 1990. 21. Popov V.P., Krainyuchenko I.V. Global’nyi evolyutsionizm i sinergetika noosfery. Rostov n/D.: Izd-vo APSN, SKNTs, 2013. 22. Romanovich A.L., Ursul A.D. Ustoichivoe budushchee (globalizatsiya, bezopasnost’, noosferogenez). M.: Zhizn’, 2006. 23. Stepin V.S. Tsivilizatsiya i kul’tura. SPb., 2011. 24. Teiyar de Sharden P. Fenomen cheloveka. M.: Progress, 1987. Философия и культура 12(84) • 2014 1738 При цитировании этой статьи ссылка на doi обязательна © N O TA B E N E (О О О « Н Б -М ед иа ») w w w .n bp ub lis h. co m DOI: 10.7256/1999-2793.2014.12.13053 25. Turchin A., Batin M. Futurologiya. XXI vek: bessmertie ili global’naya katastrofa. (URL: http://bit.ly/dn2kNV). 26. Universal’naya i global’naya istoriya (evolyutsiya Vselennoi, Zemli, zhizni, obshchestva). Volgograd: Uchitel’, 2012. 27. Ursul A.D. Informatsiya i kul’tura // Filosofiya i kul’tura. 2011. № 2. S. 64-79. 28. Ursul A.D. Kul’tura kak informatsionnyi fenomen // NB: Filosofskie issledovaniya. 2013. № 8. S. 295-355. (DOI: 10.7256/2306- 0174.2013.8.508. URL: http://www.e-notabene.ru/fr/article_508.html). 29. Ursul A.D. Put’ v noosferu. Kontseptsiya vyzhivaniya i ustoichivogo razvitiya tsivilizatsii. M.: Luch, 1993. 30. Ursul A.D. Ursul T.A., Engel’ A.A., Tupalo V.G. Ustoichivoe razvitie, bezopasnost’, noosferogenez. M.: RAGS, 2008. 31. Ursul A.D., Ursul T.A. Global’nyi (universal’nyi) evolyutsionizm: predmetnoe pole i problemnaya orientatsiya // Filosofiya i kul’tura. 2012. № 2. S. 6-20. 32. Ursul A.D., Ursul T.A. Universal’nyi evolyutsionizm (kontseptsii, podkhody, printsipy, perspektivy). M.: RAGS, 2007. 33. Fresko Zh. Budushchee i za ego predelami. (URL: http://tvpactivism.ru/files/Buduschee_i_za_ego_predelami_Jacque_ Fresco.pdf ). 34. Yanshina F.T. Evolyutsiya vzglyadov V.I. Vernadskogo na biosferu i razvitie ucheniya o noosfere. M.: Nauka, 1996. 35. 3G: Globalistics, Global Studies, Globalization Studies: Scientific Digest / Ed. by I.I. Abylgaziev, I.V. Ilyin. M.: MAKS Press, 2012. 36. Enciclopedia of Global Stadies / Ed. H.K. Anheier, M. Juergensmeyr. Los Angeles: London and others, 2012. 37. Globalistics and Globalization Studies: Teories, Reasearch & Teaching. Yearbook. Volgograd: «Uchitel» Publishing House, 2013. 38. Ursul A.D. Global Studies: An Evolutionary Approach // News and Views. The Journal of the International Academy for Philosophy (New Series). Vol. 3. № 3(30), Winter, 2012. 
work_6zo3ybkdqjc4zkmjevoezpcckq	----	Durham Research Online Deposited in DRO: 05 June 2017 Version of attached �le: Accepted Version Peer-review status of attached �le: Peer-reviewed Citation for published item: Brooks, Thom (2017) 'Punitive restoration and restorative justice.', Criminal justice ethics., 36 (2). pp. 122-140. Further information on publisher's website: https://doi.org/10.1080/0731129X.2017.1358930 Publisher's copyright statement: This is an Accepted Manuscript of an article published by Taylor Francis Group in Criminal Justice Ethics on 13 October 2017 available online at: http://www.tandfonline.com/10.1080/0731129X.2017.1358930 Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro�t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 https://dro.dur.ac.uk https://www.dur.ac.uk https://doi.org/10.1080/0731129X.2017.1358930 http://dro.dur.ac.uk/21956/ https://dro.dur.ac.uk/policies/usepolicy.pdf https://dro.dur.ac.uk 1 Punitive Restoration and Restorative Justice Thom Brooks Durham Law School, Durham University, Durham, UK Abstract. Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles not least their relatively limited applicability, flexibility and public support. Punitive restoration is a new and distinctive idea about restorative justice modelled on an important principle of stakeholding which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence demonstrating how restorative practices can be embedded deeper within the criminal justice system. Key words: Crime Reduction, Public Confidence, Punishment, Punitive Restoration, Restorative Justice, Stakeholding Introduction How can we create less reoffending with greater public confidence? These twin goals have proven elusive for criminal justice policymakers. While crime rates remain relatively low historically, sentencing decisions are increasing criticised by the public for being overly lenient and providing insufficient deterrence. Policymakers face two challenges. First, measures that reduce reoffending do not always satisfy public demands for tougher sentencing. Secondly, more onerous punishments can make reoffending more likely and so prove counterproductive. Restorative justice approaches are a promising alternative to traditional sentencing practices. Studies have found that restorative justice can produce up to 25% less reoffending with much higher participant satisfaction – all at much reduced costs. These approaches have 2 the potential to achieve the elusive twin goals. It is hardly surprising that restorative justice is increasingly popular across the political divide in Britain. Nonetheless, there are several obstacles that threaten to limit their wider use. The diversity of restorative approaches ranging from in-school rehabilitative programmes to victim-offender mediation that can make it difficult to identify any one model for implementation. Restorative justice is usually restricted to less serious offences that may constrain its application to more types of offending. This constraint is a product of limited confidence in the use of restoration for more serious crimes because imprisonment is always ruled out. Finally, there is disagreement about what is “restored” through any specific restorative approach. I will argue that the twin goals of achieving less reoffending with greater public confidence can be achieved through a distinctive restorative approach that I will call punitive restoration overcoming the many obstacles facing most other restorative approaches. The next section begins by explaining the appeal of restorative justice. The following section discusses the obstacles restorative justice approaches face and the problems that arise. I then turn to explaining how my alternative approach of punitive restoration can improve on other restorative approaches. This final section concludes by specifying what punitive restoration might entail in practice. The Diversity of Restorative Justice The term “restorative justice” refers to a range of approaches and not any single practice. 1 It is more an orientation than a practice favouring the informal over the formal aiming at providing victims and offenders alike with a voice. Furthermore, “there is no agreement on the actual nature of the transformation sought by the restorative justice movement.” 2 3 Different views abound about what is “restored” and even the desired goals of restorative justice. This can make it difficult to discuss because of the wide diversity of restorative approaches. 3 Restorative justice approaches are applied in schools, 4 prison interventions 5 and South Africa’s Truth and Reconciliation Commission. 6 Restorative justice approaches are also found in applications that are the focus of this essay: restorative justice as an alternative to traditional sentencing, including victim-offender mediation and restorative conferencing as practiced in England and Wales. 7 The golden thread—or “conceptual umbrella”—uniting all of these diverse approaches to restorative justice is their focus on bringing closure to a conflict through informal, but not unstructured, deliberation with the aim of enabling both understanding and healing. 8 Perhaps the best known working definition of restorative justice approaches is by T. F. Marshall: “Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.” 9 Marshall’s focus on the process of restorative justice approaches illuminates one distinctive difference from models of traditional sentencing. Judges and magistrates determine the sentencing outcomes for convicted offenders from their courtroom benches following a set of formal procedures. A growing concern in recent years is that these procedures exacerbate victim displacement, stated eloquently by John Gardner: we seem to have lost sight of the origins of the criminal law as a response to the activities of victims, together with their families, associates and supporters. The blood feud, the vendetta, the duel, the revenge, the lynching for the elimination of these 4 modes of retaliation, more than anything else, the criminal law as we know it today came into existence. 10 The challenge is to discover some process whereby the victim can play a more substantive role in criminal justice without returning to the many problems that led to victim displacement. Restorative justice approaches, such a victim-offender mediation and restorative conferencing, suggest such a process – and they provide us with an alternative to the traditional, formal procedures for sentencing. Restorative approaches endorse a more informal means to secure outcomes located away from courtrooms led by a trained facilitator instead of a judge or magistrate. Facilitators conduct meetings that require the offender to admit guilt beforehand. Offenders are permitted a legal representative although they are not normally present and offenders are expected to engage directly with others present. Both mediation and conferences begins by the facilitator clarifying the parameters and purposes of the meeting with guidance available from the Restorative Justice Council. 11 The victim is then provided an opportunity to speak next and address the offender to explain the impact of the offender’s crime on her. Restorative conferences next permit any members of the victim’s support network, such as their friends and family, as well as select members of the local community, to discuss how the offender’s crime impacted on them. The offender speaks last and expected to account for his crimes, typically including an apology to the victim. These meetings conclude by participants confirming a contract that the offender is asked to agree. If the offender does not or if he fails to honour its terms in full, then the next step can include a transfer to having the alleged offence considered in the courtroom where potential outcomes can be more punitive. 12 5 Restorative approaches are more than a process, but aim to provide real benefits. The first is that mediation and conferences lead to “restorative contracts” agreed by all parties, including offenders, in about every restorative meeting: studies have found contracts agreed in up to 98% of cases. 13 The second benefit is the contracts agreed improve the reduction of reoffending by offenders. These contracts can better target the specific needs of offenders because of the greater flexibility of the more informal process of restorative meetings. Standard outcomes include requirements that offenders attend treatment to overcome their substance abuse or problems with anger management, training is provided to improve employability and general life skills, some compensation to the victim is agreed and there is often some element of community sentencing included. This improved targeting of offender needs has been found to contribute to up to 25 per cent less reoffending than alternatives. 14 Restorative approaches are found to improve our ability to address problems associated with victim displacement. Nils Christie argues: The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own case. It is the [state] that comes into the spotlight, not the victim. It is the [state] that describes the losses, not the victim. 15 Restorative justice approaches address these problems in a potentially fruitful way. Victims report high satisfaction with restorative approaches, especially participation in restorative conferencing—and this is true for all participants, including offenders. 16 While victims regularly report feelings of alienation for cases heard in courtrooms, restorative meetings outside the courts provide a more informal and less intimidating context where victims are 6 encouraged to vocalise their experience of crime and its personal effects in an attempt to find closure in a safe and constructive environment. This higher satisfaction for all participants is a product of the dialogue brought about through restorative meetings whereby each participant has opportunities to engage with others to better understand the wider context of a particular crime and its effects on others aimed at bringing closure. Victims gain some insight into crimes committed against them and offenders benefit from greater knowledge about the consequences of their actions. Finally, restorative approaches are much less expensive than traditional sentencing. One study found restorative approaches saved £9 for every £1 spent. 17 Restorative justice is not one practice, but a broad tent encompassing a wide diversity of practices. This article focuses on restorative justice approaches that are an alternative to sentencing. These approaches demonstrate significant promise as restorative meetings might achieve the benefits of improved victim satisfaction through greater participation opportunities, less reoffending through better targeting of offender needs and promotion of constructive engagement at much reduced costs. Restorative justice may be an important first step towards meeting the twin challenges of improving public confidence while reducing reoffending. The Problems with Restorative Approaches Restorative justice approaches suffer from several problems. This section identifies the more significant problems and the first—the fact of the diversity of restorative practices—has already been stated above. Perhaps what most restorative approaches have in common is in what they are not: they are not held in a courtroom, they do not follow formal procedures of traditional courtroom practices, they do not exclude victims from participation and so on. 18 7 The fact of restorative justice’s diversity of practices leads to the problem that to speak of ‘restorative justice’ is to discuss not any one single approach. This plurality of practices extends to the forms they can take from mediation to conferencing, but also to differences in dynamics in how these practices are delivered. The informality of restorative meetings is a key to its strength – making it easier to target offender needs – but also a weakness as some part of its success depends on the specific dynamics from the particular participants involved. While facilitators are trained to minimise such differences, they can and do exist. 19 A second problem is the limited application of restorative justice approaches. Generally, these are restricted to less serious crimes by young offenders and only rarely used for adults. 20 Restorative justice approaches are limited to a relatively modest set of offenders and crimes and so may be considered an incomplete view of punishment that does not cover all or even most types of offenders or crimes. 21 Perhaps the reason for this limited applicability is a third, related problem of limited confidence which may prevent restorative justice approaches being considered for more serious crimes. There is a concern the public may view these approaches as a “soft” option for more serious offences. So even if restorative approaches were proved to be more effective at reducing reoffending, the problem they would have is that they might be politically unpalatable. There are many recent examples of criminal justice policies receiving popular support that undermined crime reduction efforts. The most prominent illustration is probably California’s so-called “Three Strikes and You’re Out” law requiring offenders convicted of a third eligible criminal offence face a minimum of 25 years imprisonment. 22 Studies confirm this law led to an explosion in the prison population and its associated cuts with only a negligible deterrent effect of no more than two per cent. 23 Populist proposals like “Three 8 Strikes and You’re Out” indicate the public’s willingness to support more punitive penal policies mistakenly believing they will lead to improved crime reduction and at less cost – neither of which came true. 24 Restorative justice’s problems of limited application and limited application are connected to a fourth problem, namely, that restorative alternatives to traditional sentencing are constrained by their limited available options. Restorative justice approaches considered here do not include so-called “hard treatment” options like imprisonment nor suspended sentences as a part of their available options for a restorative contract. Indeed, some claim restorative justice approaches do not offer us a view about punishment because hard treatment is not an option for contracts agreed at restorative meetings. 25 The reason for excluding hard treatment as an option is that its use is thought to be counterproductive to reducing reoffending. Imprisonment is too often not the start of a person’s longstanding social-economic and legal problems, but their confirmation—where bad situations can become much worse. Common risk factors for reoffending including economic insecurity, employment insecurity, financial insecurity and housing insecurity to name only a few. 26 These can often become exacerbated through even brief time spent in prison. Some research suggests the prison may even be “criminogenic” because it may contribute to a greater likelihood an imprisoned offender reoffends on release. 27 While imprisonment can often make crime reduction more difficult, imprisonment is not always counterproductive to this purpose. The problem here is not that the prison is used, but how it is used – and how it can and should be improved. Restorative justice highlights the many attractions of an alternative criminal justice process where prison is not an available option. These approaches show that another model is possible—sometimes even preferable. For most proponents of restorative justice, its opposition to imprisonment is viewed as a 9 strength of its “abolitionist” position. 28 Restorative approaches provide a promising process that might help us curtail the use of prison to ensure it is a last resort. The reason for limiting options for restorative approaches to exclude the use of prison is connected to a final problem: the lack of clarity these approaches offer about what is “restored” through a specific restorative approach. Strictly speaking, restorative justice approaches reject the use of prison because it is held imprisonment is a barrier to “restoration.” 29 This is a contestable empirical claim that mistakes how we find many prisons with how prisons should be found while raising new questions about what is meant by restoration. Restorative justice approaches claim they enable a “restoration” of the damaged relationship between an offender and the wider community. But which community and who are the relevant members? Many argue this claim “remains shrouded in mystery.” 30 For example, Andrew Ashworth says: If the broad aim is to restore the ‘communities affected by the crime’, as well as the victim and the victim’s family, this will usually mean a geographical community; but where an offence targets a victim because of race, religion, sexual orientation, etc., that will point to a different community that needs to be restored. 31 There are two concerns here. The first is the problem of identifying the appropriate community to be restored and the second is the problem of selecting persons from that community to participate in a restorative meeting. The first problem of identifying the appropriate community affected by a crime is significant. Restorative justice requires a restoration of the members within that community, but we each identify with multiple and sometimes overlapping communities and so it is unclear how we should choose between 10 them. These communities are rarely static and our identities are not created in a vacuum suggesting that even if we could identify “the community” this may be of limited practical benefit for the purposes of achieving restorative justice. 32 A further problem concerns the idea of “restoration” itself. Restorative justice aims at a restoration of an offender with the wider community. This is built on a view that there is a wrong to be made right and an injustice between affected persons requiring closure. If this is the case, then it is unclear why restorative justice requires a criminal offence where there may be injustices requiring repair. For example, restoration may bring benefits to individuals and communities despite no crime has taken place. There may be a need for providing support to overcome addictions or enable greater financial independence – yet this support might only be available to “restore” those affected should there have been a crime. Short of offending, individuals may lack access to support they need benefiting themselves and their community. Another example is the case of restorative approaches used in schools for children to resolve conflicts and promote healing. If this is our goal, then crimes can be incidental to whether restoration is required. Restorative justice approaches bring several potential benefits that include higher victim satisfaction, more effective crime reduction and at lower costs. These benefits are not without their own costs. Restorative justice approaches are difficult to pinpoint and provide anything but broad comparisons given their diversity. They have limited applicability, limited public confidence, operate with limited options by excluding prison and subject to a serious problem concerning what is “restored” and by which community. 33 Restorative justice approaches may be worth defending, but we require a new approach to yield the potential benefits while avoiding these obstacles. Otherwise, restorative justice approaches might remain an underutilised resource at the margins of mainstream 11 criminal justice policy. This situation might change if there is a new formulation of restorative justice that could address these challenges. The Punitive Restoration Alternative This section presents and defends a particular approach to achieving restorative justice in a novel way: the idea of punitive restoration. 34 Punitive restoration offers a distinctive view about restorative justice. It is a single practice taking the form of a conference setting where the victim, the offender, their support networks and some local community members are represented. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed, or threatened, by criminal offences. 35 This is accomplished through recognition of the crime as a public wrong leading to a contractual arrangement agreed by stakeholders. Punitive restoration is punitive because it extends the available options for a restorative contract to achieve restoration and this may include forms of hard treatment, such as drug and alcohol treatment in custody, suspended sentences or brief imprisonment. These claims will now be defended. Restorative justice approaches lack clarity about what is to be restored and how it should be achieved. Andrew von Hirsch and Andrew Ashworth argue that restorative justice “suffers from unduly sweeping definition of aims and insufficient specifications of limits” with a conceptually incoherent model. 36 In fact, its claim to bring restoration to a community may be criticised because restorative approaches do not insist on community involvement and the overwhelming majority of restorative meetings are victim-offender mediations where the community is excluded. Punitive restoration operates with a more specific understanding about restoration. 37 The model of punitive restoration is a conference meeting, not unlike restorative conferencing. This is justified on grounds of an important principle of stakeholding: that 12 those who have a stake in penal outcomes should have a say in decisions about them. 38 Stakeholding has direct relevance for sentencing policy. Stakeholders are those individuals with a stake in penal outcomes. These persons include victims, if any, their support networks and the local community. Each marks himself or herself out as a potential stakeholder in virtue of his or her relative stake. This view of restoration endorses the primary working definition from Marshall that is used by most proponents of restorative justice considered above and restated here: “Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.” 39 Restorative justice has often been understood as a process that brings “stakeholders” together. 40 Its distinctive form as punitive restoration better guarantees this understanding by promoting the conference meeting and not victim-offender mediation. Relevant stakeholders become more easily identifiable as persons immediately involved or connected with a criminal offence. This does not require all such persons to participate, but rather that opportunities exist for persons beyond the victim and offender to take part. Similarly, there must be opportunities for members of the general public to take part. This working idea of a conference setting is without any specific recommendation on capping the number of persons included although feasibility may render groups of ten or more impractical. The key idea is that if restoration is worth achieving, then it should not be a private affair between only the victim and offender: crimes are public wrongs that affect all members of the community, including the support networks of victims and offenders whose voices are regularly left out. 41 These individuals have a stake in the outcome that should not be silenced. Restorative conferencing demonstrates this model is achievable and successful: participant satisfaction is higher in this setting than in mediation. 42 We should take the idea of 13 stakeholding central to restorative justice approaches more seriously and ensure that any restoration of offenders with their community is enabled through including the community— as this is too often not the case. So one benefit of punitive restoration is its specifying the restorative process. Restoration is aimed at stakeholders through a conference setting. Furthermore, we should recall that our focus is on alternatives to sentencing: punitive restoration is conceived an alternative to the formal procedures of the criminal trial and sentencing guidelines. Punitive restoration can then overcome an important obstacle—the diversity of restorative approaches. It can do this because our speaking of “punitive restoration” is linked with a particular, informal use of restorative justice. We can then better compare the dynamics and outcomes from punitive restoration given the more specified content. When referring to “punitive restoration,” we know which restorative practice we are talking about. Another benefit is that punitive restoration can better address the issue of community than alternative restorative approaches. This is because punitive restoration endorses the principle of stakeholding where those who have a stake should have a say. 43 There is no need to consider the more difficult task of discerning which type of community is most relevant for “restoration,” but rather focus on identifying the primary stakeholders and engage them. It should be noted that orthodox restorative justice approaches typically require both victims and offenders to participate. An additional benefit of punitive restoration over these approaches is only punitive restoration can address situations of so-called “victimless” crimes or where a victim is either unable, or unwilling, to participate. Those offences most often considered “victimless,” such as possession of illegal drugs, might normally be unavailable to a restorative approach and the potential benefits it can offer. While there may be no specific victim, crimes are public wrongs where the public have a stake in how criminal offences are managed no matter their degree of seriousness. Punitive restoration’s principle of 14 stakeholding better helps us identify persons to participate in conference meetings and expand their applicability to a wider range of offences than alternative restorative approaches. The public’s having a say on penal outcomes is subject to several safeguards as found in current restorative justice practices that punitive restoration builds upon. 44 Offenders have a right to legal representation throughout. Participation by everyone from offender to victim and community members is voluntary. The public can contribute already to penal outcomes through serving on a jury or submitting a victim impact statement so having a voice on sentencing is not unknown. 45 Flexibility is constrained by national guidelines providing necessary discretion but all outcomes must be overseen by a trained facilitator and agreed to by the offender to be confirmed. 46 Further problems for restorative justice approaches concern their limited applicability to less serious offences, the limited confidence the public may have in restorative approaches because they may be viewed as too soft an option and their limited available options by excluding any use of hard treatment. Punitive restoration takes these obstacles together. It enables wider applicability by increasing the kind and range of available options. Punitive restoration does not assume that restoration must never require the use of hard treatment. While incarceration may often make successful crime reduction efforts more difficult, it is also clear that prisons can, and should, be transformed to improve their disappointing results. 47 For example, restorative contracts regularly include an obligation on offenders to undertake treatment for any drug or alcohol abuse and to participate in programmes designed to develop their employability and life skills. 48 There is no reason to accept these activities could never be delivered successfully within a prison or some other secure facility for particular offenders. Perhaps hard treatment should be used sparingly because its use can be counterproductive: this is still not grounds for avoiding custodial sentences altogether. It is a 15 realistic possibility that prisons may prove the best environment for some offenders in specific cases. 49 Prisons might also be reorganized so that prison officers could become Personal Support Officers if provided suitable training. Such a reform would make better use of prison resources: these officers have most frequent contact with imprisoned offenders and this relationship could be harnessed to produce an improved system of pastoral support. 50 Prisons can and should be transformed so incarceration does not undermine offender rehabilitation. Short-term imprisonment is associated with high rates of reoffending. This is a significant problem because most offenders receive short-term sentences of less than 12 months and about 60% will reoffend within weeks of their release. 51 Most offenders receiving short-term imprisonment do not receive any rehabilitative treatment. This is a major contributing factor to the likelihood these offenders will reoffend when released from prison. This problem may be overcome through providing effective treatment. Brief intensive interventions have been employed to address problems associated with drugs and offending were found to benefit from “significant gains in knowledge, attitudes and psychosocial functioning.” 52 These sessions were corrections-based treatment of moderate (30 outpatient group sessions three days per week) or high intensity (six month residential treatment) has been found to yield cost savings of 1.8 to 5.7 the cost of their implementation. 53 These policies suggest prisons can be reformed to better support offender rehabilitation and improve post-release crime reduction efforts without sacrificing cost-effectiveness. Reforms like these have important relevance for punitive restoration. This is because offenders who have committed more serious, even violent, crimes may require more punitive outcomes than currently available to restorative justice approaches. For example, in England and Wales, the currently available restorative practices reject all uses of hard treatment including the imposition or its threat in contracts agreed at restorative meetings. If these contracts are not agreed or satisfied in full, the offender may have his case transferred for 16 consideration by a magistrate where hard treatment can become a possible outcome. Despite having admitted guilt in a restorative setting and apologised to the victim, the offender is permitted to plead not guilty where his or her failure to honour a restorative contract cannot be raised at trial. This current practice fails to fully respect the integrity of the restorative process as neither apologies nor promises are supported by any available sanction. Punitive restoration might permit the inclusion of a suspended sentence for noncompliance of a contract within the contractual agreement—this would be made clear to offenders upfront. 54 This option would extend the flexibility of punitive restoration to more varieties of offence-types and offenders bypassing the need for a trial in cases of noncompliance and further reducing potential sentencing costs. Nor should this be problematic: offenders receiving a suspended sentence in a punitive restoration conference meeting would retain access to legal representation throughout, must confirm any guilt without coercion and agree all terms presented to him or her at the conclusion of this meeting for committing offences where the alternative—through the traditional formal procedures of the courtroom—would include options that are at least as punitive. Note that one major difference is that only with punitive restoration would the possibility of hard treatment be an issue that must be agreed by the offender prior to its use. Let us consider two further instances where punitive restoration might justify some form of hard treatment. One is the idea of prison as a form of cooling off. Recall that imprisonment is often not the beginning of an offender’s socio-economic and legal difficulties, but rather their confirmation after an extended escalation. Imprisonment is characteristically disruptive. A consequence is that this can end already fragile support networks and render an individual’s road to sustainable prosperity tenuous. This is a significant problem for most offenders – but not for all. Perhaps for only a small, yet important minority the disruption from strongly negative support networks or difficult 17 personal circumstances can provide an opportunity for offenders to take a break where they might become open to personal transformation possible only through a prison-like environment. And this could be readily knowable as offenders are assessed by probation officers prior to any sentencing decision anyway to ensure any allocated prison place is suitable for any offender to be considered for hard treatment. 55 A second form of hard treatment that punitive restoration might incorporate is the idea of less time in prison with more intensity. This addresses on the fact most offenders serve short-term sentences without receiving any rehabilitative treatment. These treatments are costly and so prison wardens normally reserve expensive rehabilitative programmes for offenders serving more than one year in prison: this permits sufficient time for these programmes to be effective. However, these programmes are rarely intensive and—as already noted above—such high intensity programmes have been found to be effective at reducing drug and alcohol abuse, for example. 56 More such programmes would increase costs, but these might be accounted for by reducing the overall time spent in prison made possible by intensive rehabilitation programmes: the savings from the reduced time spent in prison overall could contribute to the increased costs of ensuring all inmates have access to the appropriate intensive rehabilitative programmes. Further savings might accrue through less reoffending on release if the programmes are successful. Punitive restoration might be objected to on the grounds that hard treatment, even for a few days, is a major curtailment of individual liberty which requires special safeguards only the formal procedures of the courtroom could satisfy. The problem with this objection is that only a relatively few cases are brought to trial. 57 Thus, the vast majority of cases are never heard in court and so victims and others affected by a crime are not permitted opportunities to gain a better understanding of why crimes occurred or receive an apology from their 18 offenders. It is hardly surprising to recall the widespread dissatisfaction many victims have with the traditional sentencing model. Punitive restoration is a concrete approach that can overcome this problem by providing greater opportunities for restorative meetings where victims express much higher satisfaction. 58 Restoration might not be for everybody. Restorative justice—as an alternative to traditional sentencing—is typically only available to offenders with little to no past criminal record. Punitive restoration attempts to create a space whereby more offenders can be brought into a restorative approach. While more punitive options can enable restoration and expand potential applicability, it is not argued that punitive restoration is appropriate for all crimes, including the most serious violent offences. If it was used, it might undermine its goal of winning over public confidence. Social reality matters and punitive restoration must “restore”—strong public opposition to its use could damage its ability to provide some form of restoration. Moreover, punitive restoration requires a time commitment. Not all victims or offenders will want to take part. Community members may not wish to participate. If punitive restoration is to work, then its conference format requires stakeholders to come together. It is my contention that since restorative conferences are shown to create more strongly positive experiences for victims and offenders than alternatives that their wider use could extend these experiences for more people. Over time punitive restoration might become more regularly practiced as the public becomes more supportive both through positive experiences and results. 59 Punitive restoration might also be objected to for a lack of any stated purpose beyond its endorsing the principle of stakeholding: this may help identify relevant participants, but which penal purpose should inform their sentencing outcomes? Punitive restoration is more than an improvement over alternative approaches to restorative justice, but a concrete 19 realization of a compelling perspective on penal purposes in practice. Punishment is often justified in reference to a justifying aim or purpose, such as retribution, deterrence or rehabilitation. Philosophers disagree about which among these is most preferable despite general agreement that hybrid combinations of two or more purposes often suffer from inconsistency. 60 This is illustrated well in Britain by s142 of the Criminal Justice Act 2003 which states that punishment must satisfy at least one of five penal purposes. This claim is restated in more recent sentencing guidelines. 61 However, there has been no attempt to claim how two or more such purposes can be brought together in a coherent, unified account. This “penal pluralism” may be legally possible, but its practicality remains questionable. 62 Punitive restoration is one form that a unified theory of punishment might take. This is because it is able to bring together multiple penal purposes within a coherent, unified framework. 63 For example, desert is satisfied because offenders must admit guilt without coercion prior to participation in a conference meeting. The penal goals of crime reduction, including the protection of the public, and enabling offender rehabilitation are achieved through targeting stakeholder needs arising from the meeting. The satisfaction of these goals is confirmed through the high satisfaction all participants report which suggests a general unanimity that the appropriate set of contractual stipulations have been agreed by all and the improvements in reducing reoffending suggest success in crime reduction and treatment consistent with deterrence and rehabilitation. 64 The argument here is not that any such unified theory is best or preferable to alternative theories. Instead, it is claimed punitive restoration is an example of how multiple penal principles might be addressed within a coherent, unified account. 65 Conclusion 20 Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public, such as California’s “Three Strikes and You’re Out” law, are counterproductive to improving crime reduction. How to achieve more crime reduction without sacrificing public confidence? Restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals. Studies have found these approaches to yield significant improvements in combatting recidivism and greater satisfaction by participating victims at much reduced costs. Yet, restorative justice approaches suffer from several serious obstacles. These problems include the diversity of restorative approaches making it difficult to speak of any single approach leading to difficulties in making comparisons. Other problems include the limited applicability of restorative approaches to primarily youth offenders for less serious crimes, the limited flexibility of outcomes to exclude the possibility of imprisonment, the limited public confidence stemming from concerns restorative approaches are a soft option and a larger question about what is “restored” through restorative justice. Punitive restoration is a new and distinctive idea about restorative justice. It is modelled on an important principle of stakeholding which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration brings relevant stakeholders together, including victims, offenders and members from the local community, to consider together the appropriate penal outcomes. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. This is accomplished through recognition of the crime as a public wrong leading to a contractual arrangement agreed by stakeholders. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice 21 approaches, such as the option of some form of hard treatment. This expansion of options within a restorative framework overcomes the many obstacles that limit the application, flexibility and public confidence of restorative alternatives. 66 Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence. This approach further demonstrates how restorative practices can be embedded deeper within the criminal justice system: by making restorative practices potentially more punitive we also may render the system less punitive overall. 67 Punitive restoration is an idea whose time has now come. 68 BIBLIOGRAPHY Ashworth, Andrew. “Sentencing.” In The Oxford Handbook of Criminology edited by Mike Maguire, Rod Morgan and Robert Reiner, 819—60. Oxford: Oxford University Press, 1994. Ashworth, Andrew. “Responsibilities, Rights and Restorative Justice,” British Journal of Criminology 42 (2002): 578—595. Ashworth, Andrew. Sentencing and Criminal Justice, 5 th ed. Cambridge: Cambridge University Press, 2010. Ashworth, Andrew and Mike Redmayne. The Criminal Process, 3 rd ed. Oxford: Oxford University Press, 2005. Braithwaite, John. Restorative Justice and Responsive Regulation. Oxford: Oxford University Press, 2002. Braithwaite, John. “Setting Standards for Restorative Justice,” British Journal of Criminology 42 (2002): 563—77. Brooks, Thom. “The Right to Trial by Jury,” Journal of Applied Philosophy 21 (2004): 197— 212. Brooks, Thom. “Punishment: Political, Not Moral,” New Criminal Law Review 14 (2011): 427—38. Brooks, Thom. “Hegel and the Unified Theory of Punishment.” In Hegel’s Philosophy of Right edited by Thom Brooks, 103—23. Oxford: Blackwell, 2012. Brooks, Thom, ed. Hegel’s Philosophy of Right. Oxford: Blackwell, 2012. 22 Brooks, Thom. Punishment. New York: Routledge, 2012. Brooks, Thom. “On F. H. Bradley’s ‘Some Remarks on Punishment’,” Ethics 125 (2014): 223—5. Brooks, Thom. “Stakeholder Sentencing.” In Popular Punishment: On the Normative Significance of Public Opinion for Penal Theory edited by Jesper Ryberg and Julian Roberts, 183—203. Oxford: Oxford University Press, 2014. Brooks, Thom. “Criminal Harms.” In Law and Legal Theory edited by Thom Brooks, 149— 61. Boston: Brill, 2014. Brooks, Thom, ed. Law and Legal Theory. Boston: Brill, 2014. Brooks, Thom. “Punitive Restoration: Rehabilitating Restorative Justice,” Raisons Politiques (2015): 65—81. Brooks, Thom. “Justice as Stakeholding.” In Theorizing Justice: Critical Insights and Future Directions edited by Krushil Watene and Jay Drydyk, 111—27. New York: Rowman and Littlefield, 2016. Brooks, Thom. “Punitive Restoration: Giving the Public a Say on Sentencing.” In Democratic Theory and Mass Incarceration edited by Albert Dzur, Ian Loader and Richard Sparks, 140—61. Oxford: Oxford University Press, 2016. Brooks, Thom. “In Defence of Punishment and the Unified Theory of Punishment: A Reply,” Criminal Law and Philosophy 10 (2016): 629—38. Brown v. Plata, 563 U.S. (2011). Chapman, Jenny and Jacqui Smith. “Cutting Crime and Building Confidence.” In The Purple Book: A Progressive Future for Labour edited by Robert Philpott, 215—30. London: Biteback, 2011. Christie, Nils. “Conflicts as Property.” In Principled Sentencing: Readings on Theory and Policy edited by Andrew von Hirsch and Andrew Ashworth, 312—6. Oxford: Hart, 1998. Cullen, Francis T., Bonnie S. Fischer and Brandon K. Applegate, “Public Opinion about Punishment and Corrections,” Crime and Justice 37 (2000): 1—79. Cunneen, Chris and Carolyn Hoyle. Debating Restorative Justice. Oxford, Hart, 2010. Daly, Kathleen. “Mind the Gap: Restorative Justice in Theory and Practice.” In Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? edited by Andrew von Hirsch, Julian V. Roberts, Anthony Bottoms, Kent Roach and Mara Schiff, 219—36. Oxford: Hart, 2003. 23 Daly, Marilyn, Craig T. Love, Donald S. Shepard, Cheryl B. Peterson, Karen L. White and Frank B. Hall. “Cost-Effectiveness of Connecticut’s In-Prison Substance Abuse Treatment,” Journal of Offender Rehabilitation 39 (2004): 69—92. Dignan, James. “Juvenile Justice, Criminal Courts and Restorative Justice.” In Handbook of Restorative Justice edited by Gerry Johnstone and Daniel W. Van Ness, 269—91. New York: Routledge, 2007. Durlauf, Steven N. and Daniel S. Nagin. “Imprisonment and Crime: Can Both Be Reduced?” Criminology and Public Policy 10 (2011): 13—54. Gardner, John. “Crime: In Proportion and in Perspective.” In Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch edited by Andrew Ashworth and Martin Wasik, 31—52. Oxford: Clarendon, 1998. Joe, George W., Kevin Knight, D. Dwayne Simpson, Patrick M. Flynn, Janis T. Morey, Norma G. Bartholomew, Michele Staton Tindall, William M. Burdon, Elizabeth A. Hall, Steve S. Martin and Daniel J. O’Connell. “An Evaluation of Six Brief Interventions That Target Drug-Related Problems in Correctional Populations,” Journal of Offender Rehabilitation 51 (2012): 9—33. Johnstone, Gerry and Daniel W. Van Ness. “The Meaning of Restorative Justice.” In Handbook of Restorative Justice edited by Gerry Johnstone and Daniel W. Van Ness, 5—23. New York: Routledge, 2007. Liebling, Alison. Prisons and Their Moral Performance: A Study of Values, Quality and Prison Life. Oxford: Clarendon, 2006. Lippke, Richard L. Rethinking Imprisonment. Oxford: Oxford University Press, 2007. Llewellyn, Jennifer J. and Robert Howse. “Institutions for Restorative Justice: The South African Truth and Reconciliation Commission,” The University of Toronto Law Journal 49 (2009): 355—88. Marshall, T. F. Restorative Justice: An Overview, Home Office Occasional Paper. London: Home Office, 1999. Morrison, Brenda. “Schools and Restorative Justice.” In Handbook of Restorative Justice edited by Gerry Johnstone and Daniel W. Van Ness, 325—50. New York: Routledge, 2007. Parekh, Bhikhu. A New Politics of Identity: Political Principles for an Interdependent World. Basingstoke: Palgrave Macmillan, 2008. Perez, Deanna M. and Wesley G. Jennings. “Treatment Behind Bars: The Effectiveness of Prison-Based Therapy for Sex Offenders,” Journal of Crime and Justice 35 (2012): 435—50. Restorative Justice Council. What Does the Ministry of Justice RJ Research Tell Us? London: Restorative Justice Council, 2011. Roche, Declan. Accountability in Restorative Justice. Oxford: Clarendon, 2003. 24 Shapland, Joanna, Anne Atkinson, Helen Atkinson, Becca Chapman, E. Colledge, James Dignan, Marie Howes, Jennifer Johnstone, Gwen Robinson and Angela Sorsby. Restorative Justice in Practice: The Second Report from the Evaluation of Three Schemes. Centre for Criminological Research, University of Sheffield, 2006. Shapland, Joanna, Anne Atkinson, Helen Atkinson, Becca Chapman, James Dignan, Marie Howes, Jennifer Johnstone, Gwen Robinson and Angela Sorsby. Restorative Justice: The Views of Victims and Offenders. London: Ministry of Justice, 2007. Shapland, Joanna, Anne Atkinson, Helen Atkinson, James Dignan, Lucy Edwards, Jeremy Hibbert, Marie Howes, Jennifer Johnstone, Gwen Robinson and Angela Sorsby. Does Restorative Justice Affect Reconviction? The Fourth Report from the Evaluation of Three Schemes. London: Ministry of Justice, 2008. Shapland, Joanna, Gwen Robinson and Angela Sorsby. Restorative Justice in Practice: Evaluating What Works for Victims and Offenders. New York: Routledge, 2011. Tonry, Michael. “Less Imprisonment is No Doubt a Good Thing: More Policing is Not,” Criminology and Public Policy 10 (2011): 137—52. Towl, Graham J. “Drug-Misuse Intervention Work.” I Psychological Research in Prisons edited by Graham J. Towl. Oxford: Blackwell, 2006. Van Ness, Daniel W. “Prisons and Restorative Justice.” In Handbook of Restorative Justice edited by Gerry Johnstone and Daniel W. Van Ness, 312—24. New York: Routledge, 2007. Von Hirsch, Andrew and Andrew Ashworth. Proportionate Sentencing: Exploring the Principles. Oxford: Oxford University Press, 2005. Williams, Monica. “Beyond the Retributive Public: Governance and Public Opinion on Penal Policy,” Journal of Crime and Justice 35 (2011): 93—113 Zemring, Franklin E., Gordon Hawkins and Sam Kamin. Punishment and Democracy: Three Strikes and You’re Out in California. Oxford: Oxford University Press, 2001. 1 See Braithwaite, Restorative Justice and Responsive Regulation and Brooks, Punishment, 64—85. 2 Johnstone and Van Ness, “The Meaning of Restorative Justice.” 3 See Shapland, Robinson and Sorsby, Restorative Justice in Practice, 4 (“The restorative justice agenda . . . encompasses a very broad range of practices and approaches, such that a definitive definition has proven elusive”). See also Cunneen and Hoyle, Debating Restorative Justice. 4 See Morrison, “Schools and Restorative Justice.” 5 See van Ness, “Prisons and Restorative Justice.” 6 See Llewellyn and Howse, “Institutions for Restorative Justice.” 7 The focus is on restorative approaches that serve as an alternative to traditional sentencing in England and Wales, such as victim-offender mediation and restorative conferencing. This specification is important. There is a need to provide a more definitive and less contested model of restorative practices. The focus on one – admittedly significant – part of restorative practices is intended to help identify this new model, in part, by its distinctive form of application for England and Wales. This new model, punitive restoration, is discussed in this context, but it is not suggested that it cannot have a wider applicability to other jurisdictions. 8 Shapland, Robinson, Sorsby, Restorative Justice in Practice, 4. 25 9 Marshall, Restorative Justice. 10 Gardner, “Crime: In Proportion and in Perspective,” 31. 11 See Restorative Justice Council, “Best Practice.” 12 Offenders admitting guilt to a criminal offence for the purposes of engaging in victim-offender mediation or restorative conferencing and who either do not agree a restorative contract or fail to honour its terms in full need not admit guilt for this offence if the case is transferred to either a magistrates’ court or the Crown Court. This would appear to undermine the sincerity of the earlier admittance and it might be preferable to end this anomaly given that any admittance of guilt remains free of coercion and legal representation for offenders continues to be available although this policy suggestion is not considered further here. 13 See Shapland, et. al., Restorative Justice in Practice: The Second Report and Shapland, et. al., Restorative Justice: The Views of Victims, 27. 14 See Shapland, et. al., Does Restorative Justice Affect Reconviction? The Fourth Report and Restorative Justice Council, What Does the Ministry of Justice RJ Research Tell Us?. 15 Christie, “Conflicts as Property,” 314. 16 See Shapland, et al, Does Restorative Justice Affect Reconviction? 25-26. 17 See Shapland et al, Restorative Justice in Practice: The Second Report and Restorative Justice Council (n13). 18 I use restorative approaches and restorative practices interchangeably. 19 See Roche, Accountability in Restorative Justice. 20 See Brooks, Punishment, 173—188 and Dignan, “Juvenile Justice, Criminal Courts and Restorative Justice.” 21 See Brooks, Punishment, 67—68. 22 See Cullen, Fischer and Applegate, “Public Opinion about Punishment and Corrections,” and Zemring, Hawkins and Kamin, Punishment and Democracy. 23 See Durlauf and Nagin, “Imprisonment and Crime,” 28 and Brown v. Plata, 563 U.S. (2011). 24 See Williams, “Beyond the Retributive Public.” 25 See Ashworth, “Sentencing,” 822. 26 See Brooks, Punishment, 179—187. 27 See Durlauf and Nagin, “Imprisonment and Crime,” 14, 21-23. See also Lippke, Rethinking Imprisonment and Tonry, “Less Imprisonment is No Doubt a Good Thing,” 138, 140-41. 28 Braithwaite, Restorative Justice and Responsive Regulation. 29 Ibid. 30 Ashworth, Sentencing and Criminal Justice, 94. See Braithwaite, “Setting Standards for Restorative Justice.” 31 Ashworth, “Responsibilities, Rights and Restorative Justice,” 583. 32 See Parekh, A New Politics of Identity, 1, 21—26. 33 There is a further concern that there is a gap between the rhetoric of restorative justice approaches and their practical achievements that will not be considered here. See Kathleen Daly, “Mind the Gap: Restorative Justice in Theory and Practice.” 34 See Brooks, Punishment, 123, 132, 136, 142-43, 147-48 and Brooks, “Stakeholder Sentencing.” 35 Criminal offences infringe, or threaten the infringement, of rights. For example, theft is a violation of an individual’s right to property. Attempted offences are instances where the violation of rights is threatened. An attempted robbery is an instance where my rights to property and self are in jeopardy. Punishment as a restoration of rights recognises offences, including attempts, as the infringements, or threatened infringements, of rights that they are and it seeks to render their maintenance and future protection more secure by acknowledging just deserts and addressing underlying causes to rehabilitate if necessary and deter where possible. See Brooks, “Criminal Harms.” 36 See von Hirsch and Ashworth, Proportionate Sentencing, 110—111. 37 See Brooks, “Punitive Restoration: Rehabilitating Restorative Justice.” 38 See Brooks, “Justice as Stakeholding.” 39 Marshall, Restorative Justice. 40 See Braithwaite, Restorative Justice and Responsive Regulation, 11, 50, 55. 41 One study found that restorative conferences often include friends and family of the victim and of the offender, respectively, in 73% and 78% of cases examined. Parents were far more likely to attend restorative conferences (50% of offenders and 23% of victims) than partners (3% of offenders and 5% of victims). Shapland et al, Restorative Justice in Practice: The Second Report, 20. 42 See Shapland et al, Restorative Justice in Practice: The Second Report, 20. 43 See Brooks, “Punitive Restoration: Giving the Public a Say on Sentencing.” 44 See Restorative Justice Council, “Standards and Quality,” url: https://www.restorativejustice.org.uk/standards-and-quality. 45 An objection to this argument might be that the people rarely express their voices in the criminal justice system. With over 90% of trials in the US and UK never going to trial, victims rarely get much opportunity to 26 speak. It might be objected that making their voices heard more regularly is problematic because they should be heard no more than they are already. However, it should be countered that the minority of cases where their voices are heard – in both the jury box or witness stand – are the most serious cases. If the public’s voice matters for the most serious criminal cases, then it could be argued their voice should be heard in less serious cases as well. See Brooks, “The Right to Trial by Jury.” 46 See Restorative Justice Council, “Standards and Quality,” url: https://www.restorativejustice.org.uk/standards-and-quality. 47 See Liebling, Prisons and Their Moral Performance. 48 See Brooks, Punishment, 66-67, 73-75. On prison-based programmes designed to improve tackling drug and alcohol abuse, see Towl, “Drug-Misuse Intervention Work.” 49 See Perez and Jennings, “Treatment Behind Bars.” 50 See Chapman and Smith, “Cutting Crime and Building Confidence,” 215, 228. 51 See Ministry of Justice website. 52 See Joe, et. al., “An Evaluation of Six Brief Interventions.” 53 See Daly, et. al., “Cost-Effectiveness of Connecticut’s In-Prison Substance Abuse Treatment.” 54 The fact that a restorative contract might include hard treatment for any breach of contract need not mean offenders would be very unlikely to agree to such a contract. This is especially true for when failure to agree a contract would entail hard treatment anyway. 55 It is not suggested that probation officers always get this correct and no one has a crystal ball providing perfect predictions of the future. Yet officers may be able to ascertain where offenders are subjected to a strongly negative support network that could warrant a disruption as offered by punitive restoration, such as a cooling off period. 56 See Joe et. al., “An Evaluation of Six Brief Interventions” and Daly et. al., “Cost-Effectiveness of Connecticut’s In-Prison Substance Abuse Treatment.” 57 See Ashworth and Redmayne, The Criminal Process, 6—7. 58 It might be objected that some victims may see the opportunity to confront offenders as a chance to lavish anger and hostility. This is not what happens most often in practice. Yet even if it were so, the conference setting gives victims a voice but not the only say—and any contract (punitive or otherwise) must be acceptable by the offender to have any effect. Furthermore, contracts are not constructed in some anything goes fashion. There are guidelines to ensure that flexibility is restrained to ensure some consistency. 59 This is why it is claimed that if we want to find an approach that reduces crime more and increases public confidence then punitive restoration is a possibility we should consider because of its likely results and by the positive experiences by participants. Yet this is not about grafting punitive restoration onto an already criminogenic criminal justice system—it is the aim to help launch a shift towards more, not less, restorative justice within the criminal justice system thereby reducing the system’s criminogenic features. 60 See Brooks, Punishment, 89—100. 61 For example, see Sentencing Council, “Download a guideline,” url: http://www.sentencingcouncil.org.uk/publications/?type=publications&s=&cat=definitive- guideline&topic=&year. 62 On penal pluralism, see Brooks, “On F. H. Bradley’s ‘Some Remarks on Punishment” and Brooks, “In Defence of Punishment and the Unified Theory of Punishment.” 63 A unified theory of punishment may be constructed in different ways. The construction favoured here is to view crime as a harm to individual rights and punishment as “a response” to crime with the purpose of protecting and maintaining individual rights. This model rejects the view that penalties and hard treatment have different justificatory foundations, but rather they share a common justificatory source: the protection and maintenance of rights. The model of a unified theory can then better address the fact that penal outcomes are often multidimensional and include both financial and punitive elements. See Brooks, Punishment, 123—48 for a defence of the unified theory of punishment. 64 If satisfied, these conditions may be consistent with the idea of “empirical desert.” See Robinson, “Competing Conceptions of Modern Desert.” 65 See Brooks, “Punishment: Political, Not Moral” and Brooks, “Hegel and the Unified Theory of Punishment.” It is not argued here that other approaches could not also be consistent with a unified theory of punishment — only that punitive restoration is one illustration of it. 66 While it is suggested that expanding penal options would extend the applicability of punitive restoration, I am silent on how far this might extend. Yet whatever limits there might be and crimes that cannot be incorporated into a restorative framework for whatever reason, the claim is that more would be incorporated and not that all would or must be incorporated. 67 It has been suggested to me that this argument for punitive restoration is akin to a Trojan Horse strategy: restorative justice is dressed up in something more punitive, but if let through the thick impenetrable walls of the 27 criminal justice system there is a swift appearance of less punitiveness overall. This characterisation aptly captures a part of my strategy except that my aim in making criminal justice less punitive is not intended to be a surprise, but an achievement. I am grateful to Albert Dzur for this view. 68 Earlier versions of this paper were presented to the annual Howard League for Penal Reform conference at Keble College, Oxford; the Political Theory Workshop at Sciences Po-Paris; the Political Theory Colloquium at Harvard University’s JFK School of Government; the School of Social Sciences, Law and Business at Teesside University; the School of Public Policy at University College London; a Punishment and Prisons conference at Bowling Green State University and the City University of Hong Kong. I have benefited from comments from an anonymous referee for this journal and from Jacob Abolafia, Hilary Benn, Chris Bennett, Nick Bowes, Frances Crook, Albert Dzur, Douglas Husak, Sadiq Khan, Rick Lippke, Matt Matravers, Martha Nussbaum, Nicky Padfield, Bhikhu Parekh, Avia Pasternack, Andrei Poama, Harvey Redgrave, Julian Roberts, Paul Robinson, Michael Rosen, Avital Simhony, Astrid von Busekist and Albert Weale. 
work_6zx5mybaxjbv3bvrdyb534tixm	----	Global Justice Index Report Vol.:(0123456789) Chinese Political Science Review (2020) 5:253–331 https://doi.org/10.1007/s41111-020-00148-z 1 3 O R I G I N A L A R T I C L E Global Justice Index Report Yanfeng Gu1 · Xuan Qin1 · Zhongyuan Wang1 · Chunman Zhang1 · Sujian Guo1 Received: 3 April 2020 / Accepted: 17 April 2020 / Published online: 4 June 2020 © The Author(s) 2020, Corrected publication 2020 Abstract The Global Justice Index is a multiyear research project conducted at the Fudan-IAS to conceptualize and measure each country’s contribution to achieve greater global justice. In this study, we intend to provide our first-year achievements with the rank- ing of nation states at the global level from 2010 to 2017. This study comprises four main sections. In the introduction, we discuss the development of the conceptual framework and evaluative principles to justify our selection of dimensions and indica- tors for measurement. Next, in the section of methodology, we discuss the production, normalization, and aggregation of the raw data and the generation of the final results. The following section is the main findings, and we present the results through various visualization tools and provide regional comparisons for further analysis. In the last section, we discuss the applications and limitations of the index, and its potential fur- ther research trajectories. Keywords Global Justice Index · Indicators · Measurements · Methods · Country’s global ranking 1 Introduction The Global Justice Index is a multiyear research project conducted at the Fudan-IAS to conceptualize and measure each country’s contribution to achieve greater global justice. In this study, we intend to provide our first-year achievements with the ranking of nation states at the global level from 2010 to 2017. This study comprises four main sections. In the introduction, we discuss the development of the conceptual framework to justify our selection of dimensions and indicators for measurement. Next, in the section of methodology, we discuss the production, normalization, and aggregation of the raw data and the generation of the final results. The following section is the main findings, and we present the results through various visualization tools and provide * Sujian Guo sguo@fudan.edu.cn 1 Fudan Institute for Advanced Study in Social Sciences, Fudan University, Shanghai, China http://orcid.org/0000-0002-2846-0303 http://crossmark.crossref.org/dialog/?doi=10.1007/s41111-020-00148-z&domain=pdf 254 Chinese Political Science Review (2020) 5:253–331 1 3 regional comparisons for further analysis. In the last section, we discuss the applica- tions and limitations of the index, and its potential further research trajectories. Global justice is a broad concept composed of multilevel and multidimensional aspects belonging to both normative and empirical realities. A coherent, integrated theoretical framework that covers the normative basis and various empirical dimen- sions is, therefore, necessary to address some of the basic and important questions under study. Our study began with the conceptualization of global justice and was completed based on a theoretical paper on “Conceptualizing and Measuring Global Justice: Theories, Concepts, Principles and Indicators,” coauthored by the project leader, Sujian Guo, et  al., published in Fudan Journal of the Humanities and Social Sciences (Vol. 12, No. 4, 2019). The paper  discusses theories, concepts, evaluative principles, and methodologies related to the study of global justice. In the paper above, we attempt to clarify how to conceptualize global justice, how indicators can be selected and theoretically justified, and how those indicators can be conceptually consistent with the concept of global justice. Through the syn- thesis of multiple theories and intellectual traditions in various cultural and political contexts, we conceptualize global justice from three main approaches—rights-based, goods-based, and virtue-based—to develop a theoretical framework with a norma- tive basis for the following measurement. Rights-based conceptualization focuses on the basic principles, rules, and sources of legitimacy of justice (Universal Declaration of Human Rights 1948; Rawls 1971, 1999). Goods-based conceptualization concen- trates on the material and institutional supports that the governments or institutions are obliged to provide (Arneson 1989; Freeman 2006; Nussbaum 2006, 2011; Richard- son 2006). And virtue-based conceptualization regards justice as a virtue that an indi- vidual is willing to pursue rather than a regulation an individual is forced to comply with Mo (2003). The relationship between the three approaches of conceptualization is interdependent rather than separate, which indicates three interrelated components of a holistic whole. Additionally, the three approaches are complementary rather than competing, with the rights-based conceptualization forming the basic structure as the “bones”, the goods-based conceptualization providing substantial material supports as the “muscles”, and the virtue-based conceptualization emphasizing personal motiva- tion and internalized willingness as the “heart” (Guo et al. 2019). Based on the aforementioned theoretical framework, we propose two evaluative prin- ciples to further bridge the gap between theories and practice to determine and justify our selection of issue areas for evaluation. We call the two principles Common but Dif- ferentiated and Respective Capabilities (CBDR-RC) and Cosmopolitan but Due-diligent Responsibilities (CDDR). CBDR-RC addresses the issues “for which no single nation state can be held directly accountable or responsible, matters that can only be tackled through the globally concerted efforts of all stakeholders” (Guo et al. 2019). For exam- ple, it is the responsibility of all to protect the climate system and ecological balance, and environmental protection is a task that cannot be handled by one country on its own. The principle of CBDR-RC, first adopted by the United Nations Framework Convention on Climate Change and reaffirmed in the Rio Declaration on Environment and Develop- ment, combines normative legitimacy and historical rationality. Although it was a princi- ple that first aimed to determine the responsibilities of each country for climate change, it 255 1 3 Chinese Political Science Review (2020) 5:253–331 has been expanded to the other global justice areas such as combating transnational crime and global peacekeeping. The second principle, CDDR, addresses that “all-nation-states are morally obligated to provide cosmopolitan aid, in which context the least advantaged will have a due-dili- gent responsibility” (Guo et al. 2019). This principle is based on the concept of “mutual accountability” proposed in the Paris Declaration on Aid Effectiveness, adopted in 2005 at the Second High-Level Forum on Aid Effectiveness to promote a better cooperation between different actors in aid and development. This principle views such obligations as part of domestic affairs, such as anti-poverty and education policy, in the context of which the nation states are expected to provide material and institutional assistance to their citi- zenry within their territories. According to the principles of CBDR-RC and CDDR, we determine two clusters of global justice issue areas for practical measurement. Those issue areas that follow the principle of CBDR-RC are (1) climate change (global warming), (2) peacekeeping, (3) humanitarian aid, (4) terrorism and armed conflicts, and (5) cross-national criminal police cooperation, and those belonging to the principle of CDDR are (6) anti-poverty, (7) education, (8) public health, and (9) the protection of women and children. In the fol- lowing sections, we present the more practical part of operationalization and measure- ment to assess the performance and contribution of each nation state to promote justice at the global level. 2 Methodology: Construction of the Global Justice Index In this study, we classify our data into four levels: indicators, dimensions, categories, and issues. The first and the bottom levels of our data provide the information on indicators, which is our raw data. The second level is named dimensions, which usually comprises several related indicators. The third level is categories and comprises several related dimensions. And the last level is the issue index, usually calculated based on two catego- ries: contribution and performance. The global justice index is calculated as follows. 2.1 First Step: Convert Indicator Indices To ensure comparability between indicators, we use the following two formulas to con- vert the raw data into comparable indicators: (1)iiij = actual valueij − min (actual value.j) max (actual value.j) − min (actual value.j) + 1 (2)iiij = max (actual value.j) − actual valueij max (actual value.j) − min (actual value.j) + 1 i ∈ {1, 2, ⋯ 192}, j ∈ {2010, 2011, ⋯ 2017}, 256 Chinese Political Science Review (2020) 5:253–331 1 3 where actual valueij indicates the actual value of an indicator in country i in year j. min (actual value.j) is the minimum value of an indicator among all countries in year j, and max (actual value.j) is the maximum value of an indicator among all countries in year j. If an indicator positively relates to global justice, the first formula is used to convert the raw data; if not, the second formula is used. 2.2 Second Step: Population‑Based Weighting Consciously, countries with various populations should make different efforts to raise the welfare of their people to the same level. If one compares with the efforts that countries make to raise the welfare of their people; therefore, we weight indicators based on popu- lation size. Proceed as follows: First, calculate the weighted average of an indicator as per the following formula: iimj is the weighted average of an indicator. iiij is the actual value of an indicator in country i in year j. populationij is the population size of country i in year j. Second, calculate the weight of each country on an indicator as follows: ssij is the weight of country i in year j. Third, calculate the score for an indicator in country i in year j as follows: where IIij is the score of an indicator in country i in year j. We use IIij to further cal- culate the dimension global justice. 2.3 Third Step: Calculate the Scores of Both Dimension Indices and Category Indices For each variable, we calculate the score of the variable index as follows: where VIij is the score of the variable index. Similarly, we use VIij to further calculate the score of dimension indices as follows: (3)iimj = ∑ iiij × populationij ∑ populationij . (4)ssij = (iiij − iim) × populationij. (5)IIij = ssij − min (ss.j) max (ss.j) − min (ss.j) + 1 , (6)VIij = n √ ∏ k IIijk, (7)DIij = n √ ∏ k VIijk. 257 1 3 Chinese Political Science Review (2020) 5:253–331 2.4 Fourth Step: Calculate the Score of the Issue Index We use DIij to further calculate the score of each issue in county i in year j as follows: 2.5 Last Step: Calculate Global Justice Index We use the following formula to calculate the score of the global justice index in coun- try i in year j: where GJij is the score of global justice in country i and year j. ISIijk is the score of issue k in country i in year j. 3 Findings In this section, we will report the results of the measurement and country ranking in the identified nine issue areas related to global justice based on available data sources. We will present dimensions, variables, indicators, and data sources, and evaluate and rank the countries in terms of performance and contribution. We then present the results through various visualization tools and provide regional comparisons for fur- ther analysis. 3.1 Issue 1: Climate Change This report studies countries’ efforts to promote global justice from the perspectives of climate change, peacekeeping, and other issues. Climate change and peacekeeping are issues for which no single actor can be held directly accountable or responsible. They are issue areas that can only be addressed through the globally concerted efforts of all stakeholders. Global warming is a real, disastrous phenomenon, with many destructive effects. Scientists have concluded that human influence is most likely the dominant cause of the observed warming since the mid-twentieth century. If all countries remain passive about climate change, the situation will worsen, with dramatic consequences globally. Alternately, if countries cooperate and coordinate to combat global warming, the negative impacts of climate change on this plane would be significantly alleviated. (8)ISIij = n √ ∏ k DIijk. (9)GJij = 9 √ ∏ k ISIijk, 258 Chinese Political Science Review (2020) 5:253–331 1 3 3.1.1 Dimensions and Indicators Today, countries attempt to resolve climate change problems by, for example, reducing CO2 emission, planting more trees, and supporting clean and renewable energy. Thus, our dimensions of climate change include CO2 emission, energy use, forestry, and electricity (Table  1). We have selected more than ten indicators derived from four dimensions. In the energy use dimension, our indicators include energy use per capita, energy use per 1000 dollars of gross domestic product, and fossil fuel energy consumption. In the CO2 emission dimension, four indicators are used: CO2 emissions from gas, liquid, solid, and fuel consumption per capita and CO2 intensity per capita. The forestry dimension has two indicators. The electric- ity dimension has four indicators: electricity production from hydroelectric sources, oil, gas and coal sources, renewable sources, and nuclear sources. These data are all available for 195 countries from the World Bank. However, the time span is from 2000 to 2014 (2010–2014 is more important for our research purpose). We under- stand that these four dimensions and the indicators selected for this study may be not the most ideal, but they can to a large extent measure countries’ efforts to solve climate change problems. 3.1.2 Results In this section, we present the ranking results of the countries’ contributions to global justice from a climate change perspective (Table 2). Table 2 shows 5 years of results from 2010 to 2014 in 195 countries. Table  2 shows the countries’ climate-change ranking from 2010 to 2014. Due to the missing value problem, some countries (e.g., Afghanistan, Zambia, Zimba- bwe, and Monaco) do not have full data for the year 2014. However, 116 coun- tries in Table 2 have full data. In general, we observe that developed countries have performed relatively better than developing countries in terms of promoting global justice from a climate change perspective. In most cases, countries’ rankings have been stable from 2010 to 2014. Figure  1 shows that the top ten countries in 2014 are Sweden, Brazil, Gabon, Finland, Paraguay, Costa Rica, Congo, Democratic Republic of the Congo, Cam- bodia, and Cameroon. Sweden and Finland are developed countries and the remain- ing eight countries are developing countries. Brazil, Costa Rica, and Paraguay are South American countries. Cambodia is an Asian country. Gabon, Democratic Republic of the Congo, Cameroon, and Congo are African countries. China ranks 87th in 2014, and the United States ranks 73rd in 2014. This finding implies that the two largest economies must make more contributions despite the progress achieved prior to 2014. 259 1 3 Chinese Political Science Review (2020) 5:253–331 Ta bl e 1 D at a on c lim at e ch an ge C at eg or y D im en si on In di ca to r D at a so ur ce C ov er ag e Pe rf or m an ce E ne rg y us e E ne rg y us e (k g of o il eq ui va le nt p er c ap ita ) E ne rg y us e (k g of o il eq ui va le nt ) p er $ 10 00 G D P (c on st an t 2 01 1P PP ) Fo ss il fu el e ne rg y co ns um pt io n (% o f t ot al ) W or ld B an k 19 5 (2 01 0– 20 14 ) C O 2 em is si on C O 2 em is si on s fr om g as fu el c on su m pt io n (k t) p er c ap ita C O 2 em is si on s fr om li qu id fu el c on su m pt io n (k t) p er c ap ita C O 2 em is si on s fr om s ol id fu el c on su m pt io n (k t) p er c ap ita C O 2 in te ns ity (k g pe r k g of o il eq ui va le nt e ne rg y us e) p er c ap ita W or ld B an k Fo re st ry Fo re st a re a (% o f l an d ar ea ) Fo re st a re a (k m 2 ) W or ld B an k E le ct ri ci ty E le ct ri ci ty p ro du ct io n fr om h yd ro el ec tr ic s ou rc es (% o f t ot al ) E le ct ri ci ty p ro du ct io n fr om o il, g as a nd c oa l s ou rc es (% o f t ot al ) E le ct ri ci ty p ro du ct io n fr om re ne w ab le s ou rc es , e xc lu di ng h yd ro el ec tr ic (% o f to ta l) E le ct ri ci ty p ro du ct io n fr om n uc le ar s ou rc es (% o f t ot al ) W or ld B an k 260 Chinese Political Science Review (2020) 5:253–331 1 3 Table 2 Country ranking in the climate change aspect of promoting global justice Country 2010 2011 2012 2013 2014 Sweden 2 2 2 2 1 Brazil 3 3 3 3 2 Gabon 8 9 5 4 3 Finland 15 12 8 7 4 Paraguay 5 7 6 5 5 Costa Rica 6 8 7 8 6 Congo 9 6 9 9 7 Democratic Republic of the Congo 7 4 10 10 8 Cambodia 29 26 15 11 9 Cameroon 11 10 11 12 10 United Republic of Tanzania 10 14 16 16 11 Nepal 12 13 13 14 12 Myanmar 4 5 4 6 13 France 20 17 17 17 14 Slovenia 26 24 24 23 15 Mozambique 16 11 12 13 16 Suriname 18 19 20 18 17 Switzerland 22 21 21 21 18 Guatemala 13 16 14 15 19 Ghana 17 18 19 20 20 Angola 14 15 18 19 21 Estonia 24 22 22 24 22 Colombia 23 20 23 26 23 Slovakia 34 32 31 29 24 Montenegro 21 27 25 22 25 Kenya 31 29 32 35 26 Austria 41 40 34 33 27 Albania 30 28 26 27 28 Peru 19 23 27 28 29 Latvia 40 39 28 31 30 Panama 32 35 30 32 31 Ethiopia 48 33 35 36 32 Honduras 27 25 29 30 33 Nicaragua 42 46 38 34 34 Sri Lanka 25 30 37 25 35 Norway 50 38 36 44 36 Spain 46 48 44 37 37 Uruguay 38 51 60 47 38 New Zealand 37 36 41 41 39 Cote d’Ivoire 35 34 40 45 40 Portugal 47 50 52 43 41 Georgia 28 41 45 39 42 261 1 3 Chinese Political Science Review (2020) 5:253–331 Table 2 (continued) Country 2010 2011 2012 2013 2014 Romania 53 58 57 48 43 Croatia 59 64 59 53 44 Hungary 60 60 55 52 45 Tajikistan 36 37 42 40 46 Indonesia 45 44 47 46 47 Senegal 44 43 43 50 48 Ecuador 49 47 46 55 49 El Salvador 39 45 48 49 50 Bulgaria 58 62 53 51 51 Namibia 54 52 50 56 52 Canada 64 61 54 58 53 Togo 77 53 51 57 54 Lithuania 76 71 69 61 55 Czechia 69 68 64 63 56 Philippines 56 55 56 59 57 Republic of Korea 62 59 62 66 58 Belgium 72 63 63 62 59 Bolivia (Plurinational State of) 52 54 58 60 60 Nigeria 55 56 61 64 61 Russian Federation 65 65 65 65 62 Germany 63 66 66 68 63 Italy 82 81 73 69 64 Denmark 86 80 71 74 65 Benin 66 67 67 67 66 Bosnia and Herzegovina 73 85 81 76 67 Chile 75 73 70 71 68 Japan 43 57 68 70 69 Republic of North Macedonia 68 75 79 73 70 Dominican Republic 78 76 74 75 71 India 70 70 72 72 72 United States of America 85 82 76 77 73 Malaysia 80 79 77 82 74 Pakistan 79 77 78 78 75 Serbia 87 91 86 88 76 Greece 90 92 90 83 77 Mexico 83 84 83 84 78 Kyrgyzstan 74 74 82 79 79 Armenia 61 72 80 80 80 Niger 81 83 84 85 81 United Kingdom of Great Britain and Northern Ireland 99 94 92 86 82 Haiti 71 78 75 81 83 262 Chinese Political Science Review (2020) 5:253–331 1 3 Table 2 (continued) Country 2010 2011 2012 2013 2014 Ukraine 96 89 91 89 84 Thailand 88 86 85 87 85 Jamaica 91 90 87 90 86 China 94 95 93 92 87 Mauritius 84 88 89 91 88 Poland 98 98 96 96 89 Bangladesh 92 93 95 95 90 Botswana 89 87 88 93 91 Turkey 93 96 94 94 92 Argentina 97 97 97 97 93 Ireland 103 102 100 100 94 Morocco 95 99 98 98 95 Belarus 100 100 99 99 96 Iceland 101 101 101 101 97 Cyprus 111 112 105 103 98 Australia 108 108 108 107 99 Netherlands 107 106 102 108 100 Brunei Darussalam 114 110 102 101 Tunisia 104 104 103 106 102 Iraq 106 107 107 109 103 Singapore 112 110 104 110 104 Republic of Moldova 110 109 111 104 105 Azerbaijan 102 103 109 111 106 Lebanon 105 105 106 105 107 Israel 115 116 116 114 108 South Africa 113 111 112 112 109 Egypt 109 113 113 113 110 Mongolia 117 118 115 116 111 Jordan 116 117 117 118 112 Luxembourg 126 127 124 121 113 Algeria 118 119 118 120 114 Iran (Islamic Republic of) 119 120 119 119 115 Kazakhstan 122 123 122 123 116 Libya 121 122 121 122 117 Malta 123 124 123 124 118 United Arab Emirates 126 126 126 119 Saudi Arabia 124 125 125 125 120 Oman 125 128 127 121 Kuwait 129 127 128 122 Bahrain 130 123 Trinidad and Tobago 127 131 128 129 124 Qatar 130 125 263 1 3 Chinese Political Science Review (2020) 5:253–331 3.2 Issue 2: Peacekeeping Similar to climate change, peacekeeping has no single actor that can be held directly accountable or responsible. UN peacekeeping is an attempt, after peace has been negotiated or imposed by internal and external players, to address the causes of current hostility and to build local capacity for conflict resolution. A global effort is required to maintain international peace and security. All countries—big and small, developed and developing—can participate and make contributions. Table 2 (continued) Country 2010 2011 2012 2013 2014 Eritrea 67 69 Uzbekistan 120 121 120 117 Venezuela (Bolivarian Republic of) 57 49 49 54 Viet Nam 51 42 39 42 Yemen 114 115 114 115 Zambia 1 1 1 1 Zimbabwe 33 31 33 38 Fig. 1 2014 index ranking of climate change on a world map 264 Chinese Political Science Review (2020) 5:253–331 1 3 3.3 Dimensions and Indicators To measure a country’s effort to promote global justice by contributing to UN peace- keeping, our dimensions include personnel contribution and financial contribution (Table 2). The personnel contribution dimension is measured by the troops and police contribution indicator. The financial contribution dimension is measured by the finan- cial donation contribution. Our data source is the United Nations peacekeeping official website and International Peace Institute. Approximately 120 countries are studied in this research. The time span for our study is from 2010 to 2017 (Table 3). 3.3.1 Results In this section, we present the ranking result of countries’ contributions to global jus- tice from the peacekeeping perspective (Table 4). Table 4 shows countries’ ranking in UN peacekeeping from 2010 to 2017. In gen- eral, Bangladesh, Ethiopia, India, Nepal, Pakistan, Rwanda, the United States, and China have made tremendous contributions to UN peacekeeping; among these coun- tries, China and the United States are UN security council members. Although India is not a UN security council member, it is a regional and rising power. Bangladesh is a small country, but is a top five country in its contributions to UN peacekeeping. Based on these data, countries’ willingness is more important than capacity in terms of deter- mining how much contribution one country attempts to make toward peacekeeping (Fig. 2). In 2017, the top five countries are the United States, Ethiopia, India, Bangladesh, and Pakistan. The United States provided most funding to UN peacekeeping, and Ethiopia provided most troops and police for UN peacekeeping activities. Most of the developed countries are among the top 100, and some developing countries, especially those in Africa, did not contribute much. 3.4 Issue 3: Humanitarian Aid Humanitarian aid is short-term assistance, including material and logistic assistance, delivered to individuals in need. Usually, humanitarian aid is provided in response to natural disasters and emergencies. In these cases, providing help to save lives, reduce Table 3 Data on peacekeeping Category Dimension Indicator Data source Coverage Contribution Personnel contribution Troops and police UN Peacekeeping Website International Peace Institute 129 (2010–2017) Financial contribution Donation UN Peacekeeping Website International Peace Institute 120 (2010–2017) 265 1 3 Chinese Political Science Review (2020) 5:253–331 Table 4 Country ranking in the peacekeeping aspect of promoting global justice Country 2010 2011 2012 2013 2014 2015 2016 2017 United States of America 1 1 1 1 1 1 1 1 Ethiopia 19 15 5 5 5 3 2 2 India 4 4 4 4 3 5 3 3 Bangladesh 3 2 2 2 2 2 5 4 Pakistan 2 3 3 3 4 4 4 5 China 11 12 7 9 8 7 6 6 Rwanda 13 13 8 7 6 6 7 7 Nepal 9 9 11 8 7 8 8 8 Senegal 20 21 19 16 13 11 9 9 Egypt 6 7 10 14 15 20 14 10 Japan 7 6 9 10 10 9 10 11 France 8 8 12 12 11 10 13 12 Indonesia 23 23 23 23 26 15 15 13 Ghana 14 17 14 13 12 12 11 14 Germany 16 16 16 17 17 16 19 15 Burkina Faso 34 30 32 27 22 19 12 16 United Kingdom of Great Britain and Northern Ireland 15 14 17 18 18 17 20 17 United Republic of Tanzania 32 27 26 21 19 22 18 18 Italy 10 11 15 15 14 14 17 19 Morocco 24 24 24 24 21 21 22 20 Nigeria 5 5 6 6 9 13 16 21 Spain 18 18 22 25 28 27 28 22 Chad 89 89 88 40 33 34 26 23 Togo 38 41 40 28 27 25 23 24 South Africa 22 22 21 20 20 23 24 25 Russian Federation 28 32 29 32 34 35 30 26 Republic of Korea 25 25 25 29 30 31 31 27 Uruguay 17 20 20 19 24 29 27 28 Niger 45 38 30 26 25 24 21 29 Brazil 21 19 18 22 23 28 25 30 Cameroon 76 76 72 80 29 18 32 31 Zambia 37 45 63 70 75 50 39 32 Mauritania 157 158 138 136 93 74 40 33 Mongolia 50 80 45 35 36 39 38 34 Canada 26 26 28 33 79 86 36 35 Benin 27 33 34 30 31 30 29 36 Malawi 68 42 35 41 40 40 37 37 Guinea 86 87 90 73 67 46 42 38 Jordan 12 10 13 11 16 26 33 39 Malaysia 30 29 27 34 37 41 43 40 Burundi 88 79 77 69 47 32 35 41 Cambodia 80 61 57 52 43 42 44 42 266 Chinese Political Science Review (2020) 5:253–331 1 3 Table 4 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Netherlands 39 40 42 46 35 33 41 43 Australia 36 35 39 39 42 44 46 44 Fiji 60 59 58 48 41 45 47 45 Ireland 52 48 43 45 49 52 52 46 Sweden 46 49 52 54 53 47 48 47 Uganda 66 88 94 93 96 100 49 48 Sri Lanka 29 28 31 31 32 43 51 49 Argentina 33 31 33 36 38 48 55 50 Congo 145 153 153 156 58 38 45 51 Gabon 143 142 144 143 69 53 56 52 Ukraine 53 56 46 43 44 49 50 53 Finland 59 62 59 51 46 51 54 54 Austria 40 39 38 42 50 54 57 55 Switzerland 47 50 54 55 55 57 60 56 Gambia 51 52 50 53 54 61 61 57 Norway 49 55 56 57 56 56 59 58 Portugal 44 47 53 71 73 71 77 59 Serbia 94 91 82 72 66 60 62 60 Saudi Arabia 64 65 68 68 74 73 66 61 Peru 54 54 49 50 51 62 58 62 Belgium 41 44 47 49 52 59 63 63 Denmark 48 51 62 62 63 63 67 64 Tunisia 58 95 92 67 76 69 65 65 Kenya 35 36 37 37 39 36 34 66 Chile 43 43 44 47 48 55 53 67 El Salvador 79 82 83 79 83 72 69 68 Slovakia 62 64 66 64 68 67 71 69 Guatemala 57 57 60 58 59 64 68 70 Greece 56 58 61 59 64 65 72 71 Turkey 42 46 41 44 60 66 70 72 United Arab Emirates 71 70 67 66 71 70 74 73 Djibouti 98 96 95 74 72 75 75 74 Cote d’Ivoire 69 68 69 60 62 76 124 75 Israel 67 69 71 76 78 78 78 76 Singapore 70 71 73 78 82 84 79 77 Paraguay 83 66 65 63 70 77 76 78 Yemen 63 60 55 56 61 58 64 79 Mexico 65 67 75 77 81 81 83 80 Hungary 73 73 74 75 77 79 81 81 Czechia 90 84 76 81 84 85 82 82 Romania 78 81 80 83 86 82 80 83 Sierra Leone 61 53 51 65 80 89 88 84 267 1 3 Chinese Political Science Review (2020) 5:253–331 Table 4 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Zimbabwe 75 75 85 82 89 92 85 85 Philippines 31 34 36 38 45 68 73 86 New Zealand 74 74 79 85 87 90 86 87 Poland 77 78 78 84 85 87 87 88 Kuwait 84 83 84 88 91 93 89 89 Qatar 93 93 87 90 94 94 91 90 Liberia 157 158 155 103 97 97 95 91 Estonia 111 108 108 108 110 98 94 92 Mali 81 77 81 87 90 88 90 93 Bolivia (Plurinational State of) 55 63 64 61 65 83 107 94 Colombia 95 99 98 97 101 107 96 95 Namibia 87 86 89 94 88 91 92 96 Slovenia 92 90 91 95 98 96 98 97 Bosnia and Herzegovina 101 100 96 92 95 99 99 98 Thailand 82 37 48 96 99 80 97 99 Bhutan 158 159 162 163 149 112 103 100 Brunei Darussalam 105 97 99 99 105 102 102 101 Honduras 115 113 112 113 100 95 93 102 Armenia 151 150 140 142 125 103 101 103 Venezuela (Bolivarian Republic of) 102 104 97 98 103 101 104 104 Oman 114 112 100 100 106 106 106 105 Iran (Islamic Republic of) 106 106 103 104 109 110 105 106 Madagascar 91 92 93 89 102 108 100 107 Croatia 72 72 70 91 104 104 108 108 Kyrgyzstan 104 107 105 101 107 111 110 109 Luxembourg 96 98 102 102 108 109 109 110 Samoa 112 117 110 112 112 116 113 111 Kazakhstan 118 120 116 121 124 115 111 112 Cyprus 107 105 106 107 111 113 112 113 Algeria 116 110 111 110 114 118 115 114 Dominican Republic 129 127 132 130 131 136 132 115 Lithuania 119 116 119 117 116 121 120 116 Cuba 125 124 128 127 133 131 131 117 Bahrain 113 111 113 114 118 119 116 118 Ecuador 85 85 86 86 92 105 114 119 Libya 99 101 109 111 115 114 117 120 Viet Nam 132 133 133 133 136 127 121 121 Belarus 129 125 120 116 122 124 122 122 Latvia 126 126 127 126 132 130 126 123 Republic of Moldova 121 118 118 115 119 120 118 124 Democratic Republic of the Congo 109 102 104 109 57 37 84 125 Bulgaria 124 122 121 122 126 126 127 126 268 Chinese Political Science Review (2020) 5:253–331 1 3 Table 4 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Iraq 139 138 129 128 134 132 123 127 Iceland 108 109 115 118 121 123 125 128 Montenegro 128 123 122 123 127 133 129 129 Costa Rica 131 132 136 135 141 140 137 130 Malta 122 119 124 124 129 128 128 131 Solomon Islands 157 158 161 163 166 164 141 132 Central African Republic 100 94 101 106 117 135 163 133 Trinidad and Tobago 120 115 117 119 123 125 130 134 Bahamas 123 121 125 125 130 129 131 135 Azerbaijan 144 141 134 134 140 138 134 136 Papua New Guinea 154 151 143 138 150 143 129 137 Monaco 144 141 130 129 135 134 136 138 Lebanon 132 133 133 133 138 137 138 139 Georgia 150 149 151 154 157 154 135 140 Panama 138 137 139 140 146 147 139 141 Andorra 130 131 134 134 140 138 140 142 Myanmar 153 153 153 156 159 146 133 143 Turkmenistan 134 134 145 144 151 149 143 144 Syrian Arab Republic 136 135 137 137 144 142 144 145 Uzbekistan 148 147 147 147 154 153 145 146 Republic of North Macedonia 140 139 141 141 148 148 146 147 Guinea-Bissau 127 129 161 151 147 151 147 148 San Marino 144 141 147 147 154 153 149 149 Barbados 137 136 146 146 153 152 150 150 Botswana 141 140 123 145 152 150 150 150 Jamaica 103 103 107 120 113 117 142 151 Mauritius 146 146 148 149 156 155 151 152 Albania 97 130 150 152 142 141 153 153 Suriname 153 153 154 157 160 158 154 154 Cabo Verde 156 157 160 162 163 161 162 155 Mozambique 135 144 142 150 155 162 148 156 Angola 151 150 153 156 159 157 155 157 Democratic People’s Republic of Korea 149 148 152 155 158 156 155 157 Equatorial Guinea 152 152 153 156 159 157 155 157 Sudan 151 150 153 156 159 157 155 157 Timor-Leste 157 154 126 139 137 139 152 158 Nicaragua 153 153 156 158 161 159 156 159 Tajikistan 117 114 114 105 120 159 156 159 Afghanistan 154 155 157 159 162 160 158 160 Antigua and Barbuda 152 152 154 157 160 158 158 160 Vanuatu 110 158 161 148 128 122 119 161 Eswatini 153 153 156 158 161 159 160 162 269 1 3 Chinese Political Science Review (2020) 5:253–331 suffering, and maintain human dignity is a vital aspect of the global justice agenda. As a result, we include this humanitarian aid in our global justice index and measure each country’s efforts to provide humanitarian aid by evaluating their financial contribution to global humanitarian affairs. 3.4.1 Indicators We use ten indicators to measure each country’s efforts toward humanitarian aid. These ten indicators are food, health, water, emergency response, early recovery, coordination, education, protection, agriculture, and others, and indicate the sectors that receive the humanitarian donation of each country. The last indicator, “others,” denotes the part of the donation without a designated use. We count the humanitar- ian donation from each country to UN departments, nongovernmental organizations, and other relevant organizations such as the World Food Program, the World Health Table 4 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Guyana 156 157 160 162 165 163 160 162 Maldives 157 158 160 162 165 163 160 162 Haiti 155 156 159 161 164 162 161 163 Lao People’s Democratic Republic 157 158 160 162 165 163 161 163 Saint Kitts and Nevis 156 157 159 161 163 161 161 163 South Sudan 158 159 158 160 163 161 161 163 Belize 156 157 160 162 165 163 162 164 Dominica 156 157 160 162 165 163 162 164 Grenada 133 128 149 153 145 144 159 164 Marshall Islands 156 157 160 162 165 163 162 164 Micronesia (Federated States of) 156 157 160 162 165 163 162 164 Nauru 156 157 160 162 165 163 162 164 Palau 142 143 135 132 143 163 162 164 Saint Lucia 156 157 160 162 165 163 162 164 Saint Vincent and the Grenadines 156 157 160 162 165 163 162 164 Seychelles 152 152 159 161 164 162 162 164 Tonga 156 157 160 162 165 163 162 164 Comoros 157 158 161 163 166 164 163 165 Eritrea 157 158 161 163 166 164 163 165 Kiribati 157 158 161 163 166 164 163 165 Lesotho 147 145 131 131 139 145 157 165 Sao Tome and Principe 157 158 161 163 166 164 163 165 Somalia 157 158 161 163 166 164 163 165 Tuvalu 157 158 161 163 166 164 163 165 270 Chinese Political Science Review (2020) 5:253–331 1 3 Organization (WHO), and the International Federation of Red Cross and Red Crescent Societies. Data are obtained from the Financial Tracking Service database, managed by the UN Office for the Coordination of Humanitarian Affairs. It “aims to present a complete picture of all international humanitarian funding flows”, such that it “sup- ports the transparency and accountability of the humanitarian system and facilitates resource mobilization”1 (Table 5). Fig. 2 2017 index ranking of peacekeeping on a world map Table 5 Data on humanitarian aid Issue area Indicator Source Coverage Humanitarian aid Food Financial Tracking Service 181 (2010–2017) Health Water Emergency Response Early Recovery Coordination Education Protection Agriculture Other 1 Please check https ://fts.unoch a.org/conte nt/about -fts-1 for more information about FTS. https://fts.unocha.org/content/about-fts-1 271 1 3 Chinese Political Science Review (2020) 5:253–331 3.4.2 Results Data of the past 10 years show that the US has always been the nation who contributes the most. The traditional liberal democracies, such as Britain, Germany, Canada, The Netherlands, France, and Australia, have a dominantly high proportion of being one of the top 20 contributors. Kuwait and Saudi Arabia, high-income economies with the world’s largest oil reserves, have been in the top 20 contributors as well. China is the nation who contributes the most in Asia and ranks 16 in 2017, followed by Japan, Rus- sia, and India, who have been among the top 50 contributors in the past 10 years. Afri- can and Central Asian countries with poor economies rank relatively low (Table 6). This regional difference is more obvious on a map. Figure  3 presents a map of the humanitarian assistance contribution from each country in 2017. A darker color denotes a higher rank. On the map, the countries in East Europe, North America, and Australia are covered with a darker color and contributed the most, and countries in Africa, Central Asia, and Southeast Asia are covered with a relatively lighter color. 3.5 Issue 4: Terrorism and Armed Conflicts Terrorism and armed conflicts are major challenges to global justice. The efforts by global partners to combat terrorist violence and conflict threats are a significant aspect of the global justice agenda. Global justice can improve if nation states increase their efforts to manage cross-national conflicts and domestic terrorist threats. In the past decade, the number of violent conflicts and terrorist attacks worldwide has increased. Thus, the international community and individual countries have a duty to prioritize conflict management and terrorism governance on their agenda and act to resolve the problems identified. 3.5.1 Dimensions and Indicators Using data from highly respected sources, our project measures each country’s influ- ence on global justice in the issue area of terrorism and armed conflicts by focusing on two categories: performance and contribution. Performance refers to the extent to which a country is involved in armed conflicts and terrorism attacks. This category is measured using five thematic indictors: (1) number of conflicts, (2) number of wars, (3) number of conflict deaths, (4) number of terrorism events, and (5) number of deaths from terrorism events. By contribution, it means how much a country has done to reduce armed violence and to improve global peace. This category is measured on the basis of two thematic indicators: (1) number of agreements and (2) achievements of agreements. Data on armed conflicts are collected and recoded from the UCDP Armed Conflict Dataset and UCDP Battle-related Deaths Dataset. Data on peace agreements are based on the UCDP Peace-agreement Dataset. Data on terrorism are from the Global Terror- ism Database (GTD). Because these data sources are widely used and respected, we adopt the concepts of “conflict” and “terrorism” defined in the datasets. Admittedly, 272 Chinese Political Science Review (2020) 5:253–331 1 3 Table 6 Country ranking in the humanitarian aspect of promoting global justice Country 2010 2011 2012 2013 2014 2015 2016 2017 America 1 1 1 1 1 1 1 1 United Kingdom 2 2 2 2 2 2 3 3 Netherlands 7 6 6 8 7 5 6 8 Germany 5 3 3 4 3 4 2 2 Italy 12 14 18 16 11 12 11 7 Canada 6 5 4 5 5 6 5 5 Saudi Arabia 14 15 8 11 6 8 8 9 Kuwait 22 20 20 3 4 3 4 4 Spain 4 4 13 13 16 15 19 17 Ireland 16 16 15 14 15 16 15 15 France 9 9 10 15 8 10 7 6 Finland 15 13 12 10 10 13 13 14 Belgium 10 8 7 6 14 7 9 12 Afghanistan 36 85 82 68 89 75 82 73 Australia 8 10 11 9 12 14 14 13 Switzerland 13 11 9 7 9 9 12 10 Sweden 17 17 17 17 18 17 18 19 Norway 21 23 19 18 22 21 17 23 Denmark 23 25 24 19 20 19 20 21 New Zealand 32 24 27 26 27 26 26 24 Nepal 31 22 94 79 89 25 82 73 Greece 44 32 46 38 40 67 37 47 Luxembourg 27 29 22 21 24 23 23 26 United Arab Emirates 24 19 29 22 19 11 10 18 Turkey 11 12 23 24 25 28 29 22 Austria 26 28 26 23 28 24 21 20 Venezuela 105 36 94 79 17 84 82 73 China 20 18 21 29 23 22 24 16 Tajikistan 39 31 60 79 89 84 82 73 Azerbaijan 19 27 25 33 31 20 82 36 Thailand 47 72 84 60 55 35 73 53 Slovakia 49 105 43 41 60 45 33 35 Brazil 18 21 14 31 26 27 30 31 Romania 66 53 42 39 50 38 45 52 Estonia 42 37 35 28 32 30 25 27 Singapore 85 75 72 62 61 60 62 55 Poland 43 34 31 30 39 34 28 25 Japan 33 33 30 27 35 31 27 32 India 30 30 39 36 36 36 48 50 Belarus 34 40 33 32 42 33 32 38 Russian Federation 51 43 36 34 44 42 43 42 Bulgaria 62 55 41 37 56 43 38 39 273 1 3 Chinese Political Science Review (2020) 5:253–331 Table 6 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Portugal 45 57 45 40 38 39 47 51 Kenya 57 48 40 48 89 84 82 66 Slovenia 53 41 56 44 59 46 44 41 Malaysia 61 69 70 79 48 49 65 45 Lithuania 55 58 59 50 52 37 34 44 Kyrgyzstan 67 54 94 79 89 84 82 73 Latvia 81 52 54 45 47 48 57 73 Morocco 41 88 44 65 37 41 82 73 South Africa 68 50 47 49 49 51 54 46 Brunei Darussalam 99 73 63 79 53 84 82 73 Israel 98 78 69 79 43 84 82 73 Kazakhstan 59 56 76 61 64 54 61 64 Iraq 103 68 94 58 89 74 82 73 Czechia 73 62 50 43 57 44 48 49 Samoa 130 63 94 79 89 84 82 73 Monaco 79 67 64 54 63 55 58 73 Argentina 88 66 51 46 58 84 51 33 Malawi 130 105 37 79 89 40 82 73 Mozambique 112 105 52 69 89 84 82 73 Qatar 83 45 28 25 29 29 31 30 Malta 69 39 62 52 51 53 40 40 Tonga 130 60 94 79 89 84 82 73 Uzbekistan 89 71 94 79 89 84 82 73 Botswana 80 70 66 79 71 84 69 57 Philippines 97 44 34 35 45 71 60 29 Namibia 123 47 94 73 54 84 82 73 Ecuador 130 80 94 79 33 84 68 73 Cyprus 70 51 53 57 70 61 72 57 Sri Lanka 118 96 48 70 68 84 82 65 Andorra 72 65 65 53 65 63 66 59 Burkina Faso 102 105 94 79 89 84 82 73 Peru 60 105 79 59 77 71 77 61 Mauritius 86 105 81 79 83 58 82 73 Ghana 25 105 61 79 89 84 82 73 Republic of Korea 105 82 73 63 69 65 67 60 Montenegro 91 42 68 55 66 84 75 73 Croatia 77 61 57 51 62 68 70 73 Tunisia 37 105 94 79 89 84 82 73 Egypt 46 79 74 79 89 84 39 73 San Marino 92 76 77 79 78 76 82 68 Senegal 93 105 94 79 89 84 82 73 Mexico 50 64 55 56 46 64 42 56 274 Chinese Political Science Review (2020) 5:253–331 1 3 Table 6 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Guatemala 130 105 94 79 89 84 82 73 Bosnia and Herzegovina 74 105 94 79 89 84 82 54 Hungary 110 90 78 64 75 69 64 63 Iceland 122 92 88 67 80 70 76 62 Pakistan 111 49 32 66 30 18 22 28 Nicaragua 130 94 94 79 89 84 82 73 Gabon 109 105 94 79 89 84 82 73 Trinidad and Tobago 76 105 94 79 80 62 82 73 Cambodia 124 105 94 79 89 84 82 73 Antigua and Barbuda 94 105 94 79 89 59 82 73 Bangladesh 56 87 75 79 89 50 79 34 United Republic of Tanzania 130 105 85 79 89 84 82 73 Algeria 52 38 94 42 83 84 59 66 Indonesia 116 95 86 71 83 84 82 73 Bhutan 125 97 90 79 89 52 82 69 Albania 130 100 82 79 89 84 82 73 Chile 126 97 91 75 82 76 80 69 Guyana 90 88 94 77 79 84 82 73 Laos 130 101 94 79 89 84 82 73 Mongolia 126 86 94 79 89 84 82 73 Viet Nam 126 101 94 79 89 84 82 73 Angola 130 46 94 79 89 84 82 73 Armenia 121 105 87 79 83 84 82 73 Bahamas 107 105 94 79 89 84 82 73 Bahrain 29 105 94 20 21 56 82 73 Barbados 130 105 94 79 89 84 82 73 Belize 130 105 94 79 89 84 82 73 Benin 107 105 94 79 89 84 82 73 Bolivia 130 105 94 79 34 84 82 73 Burundi 101 105 94 79 89 84 82 73 Cameroon 130 105 94 79 89 73 82 73 Central African Republic 100 105 94 79 41 84 63 73 Chad 96 92 94 79 89 47 82 73 Colombia 95 105 91 72 87 80 82 73 Comoros 130 105 94 79 89 84 82 73 Congo 87 74 94 79 89 84 82 73 Costa Rica 130 105 94 79 89 84 82 73 Cuba 40 105 38 79 89 84 82 73 Côte d’Ivoire 130 101 71 79 89 80 82 69 Democratic Republic of the Congo 65 83 67 79 74 84 52 73 Dominica 130 105 94 79 89 84 56 73 Dominican Republic 130 105 94 79 89 84 82 73 275 1 3 Chinese Political Science Review (2020) 5:253–331 Table 6 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 El Salvador 130 105 94 79 89 84 82 73 Equatorial Guinea 113 105 94 79 89 84 82 73 Ethiopia 130 26 94 79 89 84 35 37 Fiji 130 105 94 79 89 84 82 73 Gambia 63 105 94 79 89 84 82 73 Georgia 64 59 94 47 67 57 50 73 Grenada 84 105 94 79 89 84 82 73 Guinea 130 105 94 79 89 84 82 73 Guinea-Bissau 130 105 94 79 89 84 82 73 Haiti 130 105 94 79 89 84 82 73 Honduras 130 105 94 79 89 84 82 73 Iran 117 105 94 79 89 78 82 73 Jamaica 130 105 94 79 89 84 82 73 Jordan 130 105 94 79 89 32 82 73 Lebanon 130 105 94 79 89 84 82 73 Lesotho 130 105 94 79 89 84 36 73 Liberia 35 105 94 79 89 84 82 11 Libya 130 105 94 79 89 84 82 73 Madagascar 114 105 94 79 89 84 41 73 Maldives 130 81 94 79 89 84 82 73 Mali 130 105 94 79 76 84 82 73 Marshall Islands 130 105 94 79 89 84 82 73 Mauritania 130 105 94 79 89 84 82 73 Micronesia 130 105 94 79 89 84 82 73 Myanmar 126 91 91 77 88 80 80 69 Nauru 130 105 94 79 89 84 53 73 Niger 130 105 94 79 89 84 55 43 Nigeria 78 84 94 79 72 66 78 48 Oman 28 105 16 12 13 84 82 73 Palau 130 105 94 79 89 84 82 73 Panama 103 105 94 79 89 84 82 73 Papua New Guinea 130 105 94 79 89 84 46 73 Paraguay 130 105 94 79 89 84 82 73 Republic of Moldova 71 77 80 79 89 84 82 73 Rwanda 130 105 94 79 89 84 82 73 Sao Tome and Principe 130 105 94 79 89 84 82 73 Serbia 114 101 94 75 89 80 71 73 Seychelles 130 105 94 79 89 84 82 73 Sierra Leone 119 105 94 79 89 84 74 73 Solomon Islands 130 105 94 79 89 84 82 73 Saint Kitts and Nevis 130 105 94 79 89 84 82 73 Saint Lucia 75 97 94 79 89 84 82 73 276 Chinese Political Science Review (2020) 5:253–331 1 3 the current methods of measurement and index construction in this issue area are imperfect; for example, several countries experienced sharp ups and downs in certain years, which call for a closer assessment of the methodological process. Based on the starting point of this project, we are open to insights and suggestions from all sides to further improve our ongoing research (Table 7). All the indicators are calculated in an accumulated count. For example, an observa- tion in the UCDP Armed Conflict Dataset indicates that there was a conflict between Table 6 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Saint Vincent and the Grenadines 82 105 94 79 89 84 82 73 Sudan 3 7 94 79 89 84 82 73 Suriname 54 105 94 79 89 84 82 73 Timor-Leste 38 35 94 79 89 84 82 73 Togo 130 105 94 79 89 84 82 73 Turkmenistan 48 105 94 79 89 84 82 73 Tuvalu 130 105 94 79 89 84 82 73 Uganda 120 105 94 79 89 84 82 73 Ukraine 58 105 58 79 89 84 82 73 Uruguay 130 105 88 73 72 79 82 73 Yemen 130 105 94 79 89 84 82 73 Zambia 130 105 49 79 89 84 82 73 Zimbabwe 130 105 5 79 89 84 16 73 Fig. 3 2017 index ranking of humanitarian aid on a world map 277 1 3 Chinese Political Science Review (2020) 5:253–331 Ta bl e 7 D at a on te rr or is m a nd a rm ed c on fli ct s C at eg or y D im en si on In di ca to r D at a so ur ce C ov er ag e Pe rf or m an ce Te rr or is m a nd c on fli ct s N um be r o f c on fli ct s U C D P A rm ed C on fli ct D at as et ; U C D P B at tle -r el at ed D ea th s D at as et 19 2 (2 01 0– 20 17 ) N um be r o f w ar s N um be r o f c on fli ct d ea th s N um be r o f t er ro ri sm e ve nt s N um be r o f d ea th s fr om te rr or is m e ve nt s C on tr ib ut io n C on fli ct a gr ee m en t N um be r o f a gr ee m en ts G T D A ch ie ve m en ts o f a gr ee m en ts 278 Chinese Political Science Review (2020) 5:253–331 1 3 Afghanistan, Pakistan, and the United States in 2016 that reached the scale of the war (more than 1000 deaths). According to UCDP Battle-related Deaths Dataset, the esti- mate of the number of deaths caused by this conflict in 2016 was 2141. Thus, for these three countries, the number of conflicts and the number of wars all increased by 1 in 2016, and the total number of deaths involved in the conflict (number of conflict deaths) increased by 2141 in 2016. The indicator of agreements is measured according to the specific content of an agreement. More specifically, the UCDP Peace-agreement Dataset includes a series of variables that define the characteristics of an agreement (Table 8). Because countries with different population sizes experience different levels of governance challenges in managing conflicts and terrorism, the following indicators are weighted by population size in the corresponding year: (1) number of conflicts, (2) number of wars, (3) num- ber of conflict deaths, (4) number of terrorism events, and (5) number of deaths from terrorism events. The function to measure “achievements of agreements” is as follows: 3.5.2 Results Using index construction methods (see the methodological section), this sub-index ranks 192 countries from 2010 to 2017 according to their level of performance of and contribution to global justice (Table 9). The results demonstrate that the problems of conflicts, tensions, and terrorist threats remain alarming from 2010 to 2017, creating a substantial challenge to global jus- tice. According to the rank in 2017, China becomes the number one country and has the best performance best in controlling conflicts and terrorism and participating in peace agreements. China is followed by Japan, Brazil, Vietnam, the Republic of Korea, Uzbekistan, and Poland. Countries in Europe and North America are ranked Achievements of agreements = mil_prov + pol_prov + terr_prov + justice_prov + outlin + pko + (3 − pa_type)∕2. Table 8 Variable code Indicator Value Meaning mil_prov 0–1 Whether a military agreement is reached pol_prov 0–1 Whether a political agreement is reached terr_prov 0–1 Whether an agreement on the territory is reached justice_prov 0–1 Whether a judicial agreement is reached outlin 0–1 Whether a negotiation agenda is set pko 0–1 Whether the agreement specify peace keeping measures pa_type 1, 2, 3 Agreement quality: 1 = all, 2 = partial, 3 = preliminary 279 1 3 Chinese Political Science Review (2020) 5:253–331 Table 9 Country ranking in the terrorism and conflict aspect of promoting global justice Country 2010 2011 2012 2013 2014 2015 2016 2017 China 5 2 6 6 11 5 1 1 Japan 7 4 8 7 6 12 4 2 Brazil 6 3 7 9 5 6 2 3 Viet Nam 9 5 9 8 4 4 3 4 South Korea 29 28 29 24 29 8 6 5 Uzbekistan 17 12 12 12 10 14 7 6 Poland 42 35 37 28 37 7 13 7 Madagascar 26 27 26 27 19 23 23 8 North Korea 23 18 16 14 14 13 10 9 Argentina 33 10 17 15 9 10 8 10 Indonesia 8 21 30 21 17 15 9 11 Kazakhstan 28 78 62 49 16 18 49 12 Morocco 15 42 11 11 8 17 17 13 Guatemala 32 30 44 70 21 21 18 14 Cote d’Ivoire 27 23 19 20 15 24 14 15 Tanzania 14 8 10 30 36 45 12 16 Italy 54 36 48 33 39 16 26 17 Malawi 34 29 28 23 18 20 15 18 Romania 72 63 63 58 62 29 21 19 Mexico 13 6 33 26 7 25 5 20 Ghana 22 17 36 22 31 31 29 21 Cuba 39 38 39 29 30 32 27 22 Bolivia 46 45 55 31 32 35 28 23 Haiti 47 46 41 32 33 36 55 24 Spain 40 31 35 38 41 9 11 25 Cambodia 35 37 31 45 27 39 24 26 Malaysia 52 51 60 76 72 37 70 27 Zambia 38 32 32 25 22 22 19 28 Senegal 62 94 108 68 57 51 25 29 Belarus 75 85 72 35 35 40 32 30 Netherlands 82 77 69 65 94 86 83 31 Bangladesh 36 22 22 90 78 121 67 32 Ecuador 31 39 38 40 20 30 33 33 Angola 41 19 15 13 13 11 16 34 Germany 10 25 13 10 24 83 64 35 Guinea 45 43 40 62 38 65 42 36 America 20 9 14 16 23 34 38 37 Benin 51 50 46 43 42 48 34 38 Bulgaria 104 108 117 109 102 71 54 39 Zimbabwe 56 49 34 54 34 27 22 40 Dominican 49 48 43 46 44 38 30 41 Peru 16 13 58 60 56 56 31 42 280 Chinese Political Science Review (2020) 5:253–331 1 3 Table 9 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Portugal 91 97 84 84 86 49 36 43 Nicaragua 74 65 64 55 80 52 43 44 Rwanda 108 72 101 94 54 44 40 45 Hungary 96 90 88 87 92 46 46 46 Kyrgyzstan 77 66 66 61 51 55 45 47 Canada 58 40 53 47 66 53 44 48 Honduras 57 68 49 73 48 41 47 49 Russian 127 112 106 102 55 50 68 50 Turkmenistan 79 71 67 64 76 58 50 51 Algeria 143 79 107 105 63 68 37 52 Singapore 119 116 115 111 53 59 51 53 Ethiopia 19 15 27 19 12 33 80 54 Iran 85 47 21 41 25 72 57 55 Slovakia 114 111 114 110 109 60 52 56 Uganda 99 16 54 18 85 54 86 57 Switzerland 61 81 52 67 40 61 56 58 Serbia 78 58 83 48 45 47 41 59 Congo 83 75 73 89 61 63 143 60 Costa Rica 80 73 71 66 59 64 59 61 Togo 64 60 61 63 52 66 48 62 Tajikistan 84 55 96 52 60 95 61 63 New Zealand 124 122 119 115 118 67 73 64 Lao 68 62 70 51 47 76 87 65 Oman 97 88 79 75 64 69 62 66 United Arab Emirates 105 96 91 97 116 100 100 67 Australia 66 59 59 53 90 93 72 68 South Africa 11 7 23 37 50 19 63 69 Croatia 125 123 121 123 117 70 65 70 Austria 102 100 95 99 97 57 69 71 Panama 88 82 76 74 65 75 78 72 El Salvador 70 107 109 107 104 73 58 73 Kuwait 98 101 82 78 67 127 113 74 Czechia 92 92 85 95 100 80 53 75 Mozambique 24 20 24 100 87 62 129 76 Azerbaijan 100 93 93 93 101 43 60 77 Venezuela 18 14 18 17 28 26 39 78 Eritrea 1 131 80 79 69 78 79 79 Denmark 121 110 112 112 128 119 114 80 Moldova 89 84 94 77 70 79 85 81 Chile 71 67 42 59 83 28 88 82 Uruguay 93 87 81 81 73 81 90 83 India 87 74 68 71 68 77 76 84 281 1 3 Chinese Political Science Review (2020) 5:253–331 Table 9 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 France 37 44 99 50 58 101 81 85 Tunisia 43 76 74 130 123 133 125 86 Mongolia 140 141 134 129 129 87 77 87 Georgia 152 143 135 127 127 91 109 88 Norway 123 157 116 114 114 84 66 89 Mauritania 109 115 78 86 77 92 75 90 Liberia 86 80 87 82 82 90 71 91 Namibia 107 102 103 101 89 97 89 92 Finland 115 113 113 113 111 115 91 93 Botswana 111 105 104 103 93 98 94 94 Papua New Guinea 63 57 56 44 43 42 35 95 Bosnia and Herzegovina 132 133 124 124 131 126 74 96 Albania 138 139 131 132 135 112 103 97 Lesotho 110 106 105 104 95 105 96 98 Sierra Leone 65 61 86 72 74 85 84 99 Slovenia 151 150 144 142 140 99 97 100 Belgium 90 86 89 85 110 96 119 101 Lithuania 135 137 130 126 130 88 92 102 Jamaica 101 95 90 91 91 89 82 103 Ukraine 48 41 57 39 2 3 104 104 Armenia 139 140 137 131 132 114 123 105 Republic of North Macedonia 150 148 150 141 146 123 95 106 Chad 55 34 47 57 71 156 93 107 Gambia 113 109 110 106 96 106 101 108 Trinidad and Tobago 136 124 120 138 106 118 112 109 Paraguay 94 99 97 120 121 132 124 110 Qatar 112 103 102 98 84 107 116 111 Sri Lanka 53 24 50 80 79 74 20 112 Mauritius 126 125 122 117 108 110 115 113 Equatorial Guinea 137 135 128 122 113 113 118 114 United Kingdom 103 89 92 118 105 104 106 115 Timor-Leste 130 128 123 119 112 111 117 116 Saudi Arabia 21 33 51 36 81 141 144 117 Cyprus 129 127 136 158 143 139 131 118 Sweden 106 98 98 96 103 131 110 119 Guinea-Bissau 122 117 125 116 107 116 111 120 Jordan 117 64 75 69 119 108 127 121 Eswatini 131 130 126 121 115 117 120 122 Burkina Faso 30 26 25 34 26 82 102 123 Latvia 148 149 145 143 142 109 99 124 Niger 76 54 45 88 75 162 133 125 Kenya 73 104 127 125 133 124 108 126 282 Chinese Political Science Review (2020) 5:253–331 1 3 Table 9 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Thailand 153 145 147 155 145 134 142 127 Colombia 142 126 139 137 141 128 121 128 Turkey 67 91 138 92 99 147 163 129 Burundi 149 132 100 83 88 168 164 130 Fiji 141 142 133 128 122 122 126 131 Gabon 120 114 111 108 98 102 98 132 Sudan 4 134 1 3 151 142 145 133 Estonia 158 160 154 152 154 136 122 134 Myanmar 59 11 65 56 49 94 107 135 Comoros 146 147 142 134 126 129 128 136 Guyana 144 146 141 133 125 130 139 137 Democratic Republic of the Congo 95 69 4 4 120 125 132 138 Israel 128 161 159 145 174 150 153 139 Ireland 134 136 158 153 153 145 130 140 Greece 156 118 129 149 124 120 138 141 Solomon Islands 155 152 146 144 134 135 135 142 Montenegro 168 168 166 167 163 144 134 143 Lebanon 118 129 140 174 175 161 157 144 Luxembourg 172 172 169 166 164 137 136 145 Suriname 154 153 148 146 137 138 140 146 Egypt 12 53 77 140 136 157 147 147 Pakistan 159 163 164 165 160 155 148 148 Cabo Verde 157 155 149 148 139 140 141 149 Nigeria 81 119 151 147 162 163 151 150 Bhutan 147 154 143 135 138 143 137 151 Brunei 161 158 155 151 144 146 152 152 Cameroon 60 52 20 42 157 166 146 153 Djibouti 2 144 153 139 150 151 149 154 Bahamas 163 162 156 157 148 148 155 155 Belize 164 164 157 160 149 149 156 156 Philippines 133 121 132 154 147 152 154 157 Iceland 180 179 179 173 176 153 159 158 Nepal 116 120 118 136 46 103 105 159 Barbados 166 165 161 156 155 158 161 160 Vanuatu 167 167 163 159 156 159 162 161 Maldives 162 159 160 161 169 160 158 162 Malta 160 156 152 150 152 154 150 163 Mali 44 70 3 2 3 2 160 164 Sao Tome and Principe 170 170 167 162 158 164 166 165 Samoa 169 169 165 163 159 165 167 166 Saint Lucia 171 171 168 164 161 167 168 167 Yemen 165 166 171 168 178 181 178 168 283 1 3 Chinese Political Science Review (2020) 5:253–331 in the middle, for example, Germany is ranked 35th and the United States is ranked 37th. The reason for these two rankings is mainly because European countries and the United States have participated in international peace affairs, but have been involved in international and regional conflicts. Tuvalu and Nauru remain the two countries with the least impact on global justice in the issue area of terrorism and armed conflicts, a position it has held since 2014. Other countries on the bottom include Syria, Somalia, Afghanistan, Iraq, Palau, and Nauru. Although the ranks fluctuated during the obser- vation period, we observe that the 10-year trend is relatively stable and reflects the general situation on the ground. Figure 4, a world map of the 2017 index ranking, reveals that countries in the Mid- dle East and North Africa (the MENA region), Central Africa, and South Asia must do more to decrease conflicts and terrorist threats. Most countries in East Asia and South- east Asia contribute to global justice in a sense that they made progress in govern- ing conflicts and terrorism (except for the Philippines). Many countries in Europe and North America have room to improve in managing terrorism and reducing involve- ment in global or regional conflicts. Table 9 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Bahrain 145 138 176 181 177 170 165 169 South Sudan 50 56 2 1 1 1 170 170 Kiribati 178 177 174 171 165 171 171 171 Micronesia 179 178 175 172 168 174 173 172 Grenada 175 176 173 170 166 172 172 173 Saint Vincent and the Grenadines 174 175 172 169 167 173 174 174 Tonga 177 189 189 188 187 175 175 175 Seychelles 181 181 178 176 171 177 176 176 Antigua and Barbuda 182 180 177 175 170 176 177 177 Andorra 183 182 180 177 172 178 179 178 Dominica 184 183 181 179 173 179 180 179 Libya 69 83 162 184 189 188 188 180 Marshall Islands 185 184 183 182 179 180 181 181 Central African 3 1 5 5 182 169 169 182 Syrian 25 151 170 178 181 186 185 183 Saint Kitts and Nevis 186 185 184 183 180 182 182 184 Monaco 188 187 186 185 183 184 183 185 Somalia 173 173 182 180 186 183 184 186 San Marino 189 188 188 187 184 185 186 187 Afghanistan 176 174 187 186 185 187 187 188 Iraq 187 186 185 189 191 189 190 189 Palau 190 190 190 190 188 190 189 190 Nauru 192 192 192 192 190 191 191 191 Tuvalu 191 191 191 191 192 192 192 192 284 Chinese Political Science Review (2020) 5:253–331 1 3 3.6 Issue 5: Cross‑National Criminal Police Cooperation Transnational crimes are crimes that involve more than one country in their plan- ning and organization and are always accompanied by effects across national borders. Transnational crimes, because of their suggested cross-national harm on citizens, pose serious challenges to global justice. As a result, fighting transnational crimes has been a major domain of global cooperation to improve global justice. We involved this issue into our global justice index and measure each country’s contributions to fighting transnational crimes, by evaluating their financial contribution to Interpol and their promises to the relevant UN conventions. 3.6.1 Dimensions and Indicators We used two major categories to measure transnational criminal cooperation, and each comprises several indicators. The first category is the financial contribution to Interpol (the International Criminal Police Organization). Because transnational crime involves more than one country, an international organization with a well-established commu- nication system is necessary to connect all of the countries, which is what Interpol does. Interpol is the biggest organization worldwide that provides technical and opera- tional supports to combat transnational crime.2 Financial donations to Interpol reflect the determination and contribution of a country to cross-national criminal coopera- tion. Thus, in addition, we measure the ratification status of each country to the UN Fig. 4 2017 index ranking of conflicts and terrorism on a world map 2 Please check https ://www.inter pol.int/en for more information about Interpol. https://www.interpol.int/en 285 1 3 Chinese Political Science Review (2020) 5:253–331 treaties in regards to transnational crime cooperation. These treaties include the United Nations Convention against Transnational Organized Crime and its three supplement- ing protocols.3 Ratification of the treaties denotes compliance with the related require- ments and the promise to offer relevant assistance. As a result, the ratification status of each country also shows their contribution to the cross-national criminal cooperation (Table 10). Data for the past 8 years show that the US has always been the highest contributor. Traditional liberal democracies, such as Germany, Italy, France, Britain, the Nether- lands, Canada, Spain, and Belgium, have almost dominated the top ten lists. Countries in Latin America with serious problems of transnational crimes, such as Brazil and Mexico, have made substantial contributions to combat transnational crime and are within the top 15 contributors. China is the top contributor in Asia and ranks 10th in 2007. Additionally, China has been one of the top 20 contributors for the past 8 years. Increases in ranking are observed in Japan in 2017 and in the Republic of Korea in 2015, which is after they began to ratify the UN treaties that they had not signed (Table 11). The map shows each county’s contribution in 2017. The darker color denotes a higher rank. We observe that countries in North America, South America, Europe, and Australia made relatively greater contributions compared with nations in Africa and Southeast Asia. In Africa, Algeria, Libya, and South Africa contributed relatively more than did the other countries (Fig. 5). 3.7 Issue 6: Anti‑poverty The problem of global poverty constitutes a substantial challenge to maintaining global justice. A widespread concern is that the world becomes increasingly unjust when economic growth is not equitably distributed, and in the past decade, the gap widened between the rich and poor. According to estimates from the Work Bank, at least 10% of the world’s population lives on less than US$1.90 a day. Poverty allevia- tion is of substantial importance to improving global justice. Although global poverty rates have been largely decreased over the past decades, the performance of reducing poverty has been uneven in different regions and countries. Hence, this anti-poverty index helps to evaluate individual countries’ efforts and performance in poverty reduc- tion, as a means to improve global justice. 3.7.1 Dimensions and Indicators Based on the goods-based conception of global justice and the principle of CDDR (as elaborated in our concept paper), we assume that efforts to combat global poverty 3 These three protocols include the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; Protocol against the Smuggling of Migrants by Land, Sea and Air; and Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. 286 Chinese Political Science Review (2020) 5:253–331 1 3 Ta bl e 10 D at a on c ro ss -n at io na l c ri m in al p ol ic e co op er at io n Is su e ar ea C at eg or y In di ca to r So ur ce C ov er ag e C ro ss -n at io na l C ri m in al P ol ic e C oo pe ra tio n Pe rf or m an ce (t re at y ra tifi - ca tio n) U ni te d N at io ns C on ve nt io n ag ai ns t T ra ns na tio na l O rg an - iz ed C ri m e (2 00 0) U ni te d N at io ns O ffi ce on D ru gs a nd C ri m e (U N O D C ) 18 4 (2 01 0– 20 17 ) Pr ot oc ol to P re ve nt , S up pr es s an d Pu ni sh T ra ffi ck in g in Pe rs on s, E sp ec ia lly W om en a nd C hi ld re n, s up pl em en t- in g th e U ni te d N at io ns C on ve nt io n ag ai ns t T ra ns na tio na l O rg an iz ed C ri m e (2 00 3) Pr ot oc ol a ga in st th e Sm ug gl in g of M ig ra nt s by L an d, S ea an d A ir, s up pl em en tin g th e U ni te d N at io ns C on ve nt io n ag ai ns t T ra ns na tio na l O rg an iz ed C ri m e (2 00 4) Pr ot oc ol a ga in st th e Il lic it M an uf ac tu ri ng o f a nd T ra f- fic ki ng in F ir ea rm s, T he ir P ar ts a nd C om po ne nt s an d A m m un iti on , s up pl em en tin g th e U ni te d N at io ns C on - ve nt io n ag ai ns t T ra ns na tio na l O rg an iz ed C ri m e (2 00 5) C on tr ib ut io n D on at io n to In te rp ol In te rp ol 287 1 3 Chinese Political Science Review (2020) 5:253–331 Table 11 Country ranking in the cross-national criminal police cooperation Country 2010 2011 2012 2013 2014 2015 2016 2017 United States of America 1 1 1 1 1 1 1 1 Germany 2 2 2 2 2 2 2 3 Italy 3 3 3 3 3 3 3 5 France 4 4 4 4 4 4 4 4 United Kingdom 5 5 5 5 5 5 5 6 Netherlands 6 6 7 8 8 8 8 11 Canada 7 8 8 7 7 7 7 8 Spain 8 6 6 6 6 6 6 7 Belgium 9 10 11 11 11 13 15 16 Switzerland 10 11 9 9 9 10 12 14 Sweden 11 9 10 10 10 11 14 15 Australia 12 12 12 14 14 16 16 17 Brazil 13 13 14 15 15 14 10 9 Austria 14 15 17 12 13 15 17 18 Mexico 15 14 13 13 12 12 11 13 Norway 16 16 15 16 16 18 18 21 Denmark 17 17 16 17 17 19 20 24 Poland 18 20 20 20 20 20 19 22 China 19 19 18 18 18 17 13 10 Argentina 20 21 22 23 23 26 26 28 Saudi Arabia 21 23 21 21 21 21 22 23 Turkey 22 24 24 24 25 24 21 20 Russian Federation 23 26 27 27 28 25 23 19 Finland 24 18 19 19 19 22 24 25 Slovakia 25 28 28 29 31 33 34 36 South Africa 26 29 29 28 29 30 31 32 Chile 27 31 31 31 32 34 33 34 Kuwait 28 32 32 33 34 35 35 35 Libya 29 33 33 34 35 36 37 38 Peru 30 34 34 36 37 39 39 40 Slovenia 31 35 35 35 36 38 40 41 Algeria 32 36 36 37 38 39 38 39 Oman 33 37 37 38 39 41 41 42 Romania 34 38 38 39 40 37 36 37 Uruguay 35 39 39 45 46 48 49 50 Croatia 36 40 40 41 42 42 42 43 Nigeria 36 41 40 42 43 44 45 46 Cyprus 38 42 42 44 45 47 48 51 Dominican Republic 39 43 43 46 47 50 52 53 Kazakhstan 40 44 44 47 48 46 43 44 Lithuania 40 44 44 47 48 62 47 48 Belarus 40 44 44 47 48 50 51 52 288 Chinese Political Science Review (2020) 5:253–331 1 3 Table 11 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Bulgaria 40 44 44 47 48 52 52 53 Latvia 40 44 44 47 48 52 52 53 Trinidad and Tobago 40 44 44 47 48 54 55 56 Lebanon 40 44 44 47 48 54 55 58 Serbia 40 44 44 47 48 54 55 59 Estonia 40 44 44 47 48 54 55 59 Azerbaijan 40 44 44 47 48 54 55 59 Costa Rica 40 44 44 47 48 60 61 62 Tunisia 40 44 44 47 48 60 61 63 Honduras 40 44 44 47 48 62 63 64 Zambia 40 44 44 47 48 62 63 64 Montenegro 40 44 44 47 48 62 63 64 Mongolia 40 44 44 47 48 62 63 64 Nicaragua 40 44 44 47 48 62 63 64 Laos 40 44 44 47 48 62 63 64 Burkina Faso 40 44 44 47 48 62 63 64 Saint Vincent and the Grenadines 40 44 44 47 48 62 63 64 Republic of Moldova 40 44 44 47 48 62 63 64 Senegal 40 44 44 47 48 62 63 64 Paraguay 40 44 44 47 48 62 63 64 Kenya 40 44 44 47 48 62 63 64 Guyana 40 44 44 47 48 62 63 64 Panama 40 44 44 47 48 62 63 64 Cambodia 40 44 44 47 48 62 63 64 Liberia 40 44 44 47 48 62 63 64 Madagascar 40 44 44 47 48 62 63 64 Rwanda 40 44 44 47 48 62 63 64 Mali 40 44 44 47 48 62 63 64 Jamaica 40 44 44 47 48 62 63 64 Mauritius 40 44 44 47 48 62 63 64 El Salvador 40 44 44 47 48 62 63 64 Guatemala 40 44 44 47 48 62 63 64 Central African Republic 40 44 44 47 48 62 63 64 Albania 40 44 44 47 48 62 63 64 Sao Tome and Principe 40 44 44 47 48 62 63 64 Malawi 40 44 44 47 48 62 63 64 Turkmenistan 40 44 44 47 48 62 63 64 Antigua and Barbuda 40 44 44 47 48 62 63 64 Bahamas 40 44 44 47 48 62 63 64 Mauritania 40 44 44 47 48 62 63 64 Saint Kitts and Nevis 40 44 44 47 48 62 63 64 Benin 40 44 44 47 48 62 63 64 289 1 3 Chinese Political Science Review (2020) 5:253–331 Table 11 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Democratic Republic of the Congo 40 44 44 47 48 62 63 64 Bosnia and Herzegovina 40 44 44 47 48 62 63 64 United Republic of Tanzania 40 44 44 47 48 62 63 64 Mozambique 40 44 44 47 48 62 63 64 Lesotho 40 44 44 47 48 62 63 64 Grenada 40 44 44 47 48 62 63 64 Portugal 91 25 25 25 26 28 28 29 New Zealand 92 96 101 108 112 113 113 116 Hungary 93 30 30 30 30 31 32 33 Venezuela 94 97 103 32 33 32 30 31 Indonesia 95 98 104 110 114 114 114 117 Egypt 96 99 105 111 115 116 116 119 Philippines 97 100 106 112 116 117 117 119 Ukraine 98 102 108 42 44 43 43 45 Iraq 99 103 109 47 48 49 49 49 Ecuador 99 103 109 47 48 54 55 56 Togo 99 103 44 47 48 62 63 64 Armenia 99 103 44 47 48 62 63 64 Bahrain 99 103 109 114 118 119 119 122 Niger 99 103 109 114 118 120 120 123 Gambia 99 103 109 114 118 120 120 123 Namibia 99 103 109 114 118 120 120 123 Tajikistan 99 103 109 114 118 120 120 123 Cameroon 99 103 109 114 118 120 120 123 Gabon 99 103 109 114 118 120 120 123 Botswana 99 103 109 114 118 120 120 123 Malta 99 103 109 114 118 120 120 123 Georgia 99 103 109 114 118 120 120 123 Timor-Leste 99 103 109 114 118 120 120 123 Belize 99 103 109 114 118 120 120 123 Djibouti 99 103 109 114 118 120 120 123 Kyrgyzstan 99 103 109 114 118 120 120 123 Monaco 99 103 109 114 118 120 120 123 Myanmar 99 103 109 114 118 120 120 123 San Marino 99 103 109 114 118 120 120 123 Guinea 99 103 109 114 118 120 120 123 Suriname 99 103 109 114 118 120 120 123 Seychelles 99 103 109 114 118 120 120 123 Ireland 123 127 133 137 140 141 141 144 Israel 124 128 134 138 141 142 142 146 Luxembourg 125 130 102 109 113 115 115 118 United Arab Emirates 126 129 135 139 142 144 143 145 290 Chinese Political Science Review (2020) 5:253–331 1 3 Table 11 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Malaysia 127 131 136 141 144 145 145 148 Iceland 128 133 138 143 146 149 149 152 Colombia 129 132 137 142 145 147 147 150 Qatar 130 134 139 144 147 148 148 151 Morocco 131 101 107 113 117 118 118 121 Cuba 132 135 140 40 41 45 46 47 Guinea-Bissau 133 136 141 114 118 120 120 123 Uzbekistan 133 136 141 145 148 151 151 154 Equatorial Guinea 133 136 141 145 148 151 151 154 Jordan 133 136 141 145 148 151 151 154 Bolivia 133 136 141 145 148 151 151 154 Uganda 133 136 141 145 148 151 151 154 Chad 133 136 141 145 148 151 151 154 Japan 140 145 151 156 162 176 176 2 Singapore 141 144 150 155 161 143 144 147 Pakistan 142 146 152 157 163 164 165 167 Ethiopia 143 147 44 47 48 62 63 64 Afghanistan 143 147 153 158 148 151 151 123 Zimbabwe 143 147 153 145 148 151 151 154 Sudan 143 147 153 158 148 151 151 154 Sri Lanka 143 147 153 158 164 151 151 154 Comoros 143 147 153 158 164 166 166 168 Congo 143 147 153 158 164 166 166 168 Brunei Darussalam 143 147 153 158 164 166 166 168 Yemen 143 147 153 158 164 166 166 168 Micronesia 152 143 149 154 160 163 164 166 Republic of Korea 153 160 165 171 176 9 9 12 Czechia 154 161 166 107 24 27 29 30 Greece 155 22 23 22 22 23 25 26 India 156 27 26 26 27 29 27 27 Thailand 157 162 167 140 143 146 146 149 Iran (Islamic Republic of) 158 163 168 172 177 177 177 178 Haiti 159 44 44 47 48 62 63 64 Burundi 159 164 44 47 48 62 63 64 Nauru 159 164 44 47 48 62 63 64 Dominica 159 164 169 47 48 62 63 64 Ghana 159 164 109 114 48 62 63 64 Angola 159 164 169 158 48 62 63 64 Barbados 159 164 169 173 48 62 63 64 Sierra Leone 159 164 169 173 48 62 63 64 Côte d’Ivoire 159 164 109 114 118 120 120 64 Fiji 159 164 169 173 178 178 178 64 291 1 3 Chinese Political Science Review (2020) 5:253–331 should respect the action of individual countries involved in improving the living conditions for the least advantaged within their respective jurisdictions. Therefore, to assess the contributions made by each country to global poverty eradication, we Table 11 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Viet Nam 159 164 141 145 148 150 150 153 Saint Lucia 159 164 169 145 148 151 151 154 Eritrea 159 164 169 173 148 151 151 154 Maldives 159 164 169 158 164 165 151 154 Marshall Islands 159 147 153 158 164 166 166 168 Bangladesh 159 147 153 158 164 166 166 168 Andorra 159 147 153 158 164 166 166 168 Nepal 159 147 153 158 164 166 166 168 Tonga 159 164 169 173 164 166 166 168 Bhutan 159 164 169 173 178 178 178 179 Papua New Guinea 159 164 169 173 178 178 178 179 Samoa 180 164 169 173 164 166 166 168 South Sudan 180 181 169 173 178 178 178 179 Solomon Islands 180 181 182 182 182 182 182 182 Palau 180 181 182 182 182 182 182 182 Tuvalu 180 181 182 182 182 182 182 182 Fig. 5 2017 index ranking of cross-national criminal police cooperation on a world map 292 Chinese Political Science Review (2020) 5:253–331 1 3 measure their progress in poverty reduction by focusing on three thematic indictors: (1) Gini index, (2) poverty gap, and (3) poverty rate.4 The World Bank is the main source of global information on extreme poverty. However, the global poverty data provided by the World Bank are primarily for devel- oping countries. Moreover, the data of developing countries suffer severe problems of missing values, with data appearing in certain years and missing in other years. Later in this report, we explain the imputation methods which we used to compensate for missing data of this type. To include more observation cases of developed countries, we supplement the World Bank poverty data with related information from the OECD Income Distribution Database. However, substantial challenges remain, because the two datasets use different statistical benchmarks and scales to measure the three indi- cators we use. To make the data comparable, we calculate the ranking score by meas- uring the extent to which the country’s performance in reducing poverty in a given year has improved compared with the year before. The data sources available limited our ability to rank all nation states (Table 12). 3.7.2 Results Due to data limitations, this sub-index currently has ranked 60–82 countries over the period of 2010–2017 (Table 13). The results reveal that except for the countries with missing data, the largest improvements in poverty relief were in developing countries, for example, Thailand and Argentina. There are a few clear patterns in the data. No country managed to improve on all three indicator domains—Gini index, poverty gap, and poverty rate. Moreover, the progress made by individual countries is unstable. Because this sub- index is calculated by measuring the improvement in poverty reduction performance compared with the last observation year, we easily understand that there are very rare cases that can make continuous rapid progress over 1 decade (Fig. 6). A world map of the 2017 index ranking of poverty relief demonstrates that coun- tries in Latin America made significant progress in addressing poverty problems com- pared with their performance in 2016. The countries of the Organisation for Economic Table 12 Data on anti-poverty Category Indicator Data source Coverage Performance Gini Index World Bank; OECD Income Distribution Database 60–82 (2010–2017) Poverty gap Poverty rate 4 Individual countries’ international commitment to reduce global poverty in other poor countries and regions is assessed by “humanitarian aid” in our project. Notably, many other aspects and indicators can be used to measure global poverty (e.g., living conditions). We excluded them from our measurement because of the severe problems in data quality and richness. We also provide statistical evidence that the omission of these indictors does not significantly affect the assessment and ranking. 293 1 3 Chinese Political Science Review (2020) 5:253–331 Table 13 Country ranking in anti-poverty aspect of promoting global justice Country 2010 2011 2012 2013 2014 2015 2016 2017 Ukraine 2 15 18 5 48 64 3 1 Kazakhstan 6 2 5 4 53 58 60 2 Argentina 5 6 32 33 47 7 56 3 Republic of Moldova 7 4 17 6 3 37 19 4 Uruguay 8 7 31 70 5 36 4 5 Paraguay 22 33 4 11 56 17 43 6 Romania 60 81 74 76 29 13 18 7 El Salvador 20 42 12 13 40 12 39 8 Dominican Republic 19 51 49 27 11 9 5 9 Thailand 9 2 55 2 17 2 59 10 Armenia 46 54 8 69 26 15 17 11 Cyprus 2 NA NA NA 34 1 NA 12 Bolivia (Plurinational State of) 34 10 68 19 20 41 53 13 Estonia 63 78 9 77 7 4 32 14 Ecuador 11 16 24 17 9 57 28 15 Indonesia 13 21 19 21 14 16 8 16 Colombia 14 19 34 26 16 19 30 17 Lithuania 16 63 72 47 61 56 52 18 Spain 43 69 47 80 33 45 25 19 Luxembourg 32 65 71 66 57 53 48 20 Mexico 10 31 51 63 63 10 58 21 Hungary 52 72 77 30 58 44 20 22 Canada 36 75 36 48 45 30 26 23 Republic of Korea 18 59 70 37 59 55 37 24 Switzerland 49 56 29 34 60 20 51 25 Ireland 55 35 53 18 64 18 50 26 Israel 53 34 61 60 36 46 12 27 Brazil 23 60 35 56 15 59 6 28 Denmark 26 66 42 68 31 31 42 29 Latvia 15 73 66 59 54 34 41 30 Czechia 33 49 22 74 46 49 27 31 Austria 28 67 60 29 27 52 44 32 Costa Rica 31 37 23 72 28 48 7 33 Belgium 38 61 62 44 22 51 23 34 Germany 27 39 25 67 51 50 45 35 Italy 57 41 58 58 38 54 11 36 Greece 59 79 67 38 52 29 9 37 Portugal 24 74 75 61 24 24 24 38 Panama 54 11 76 15 55 6 29 39 Sweden 51 48 16 75 21 32 46 40 United Kingdom of Great Britain and Northern Ireland 44 62 56 51 41 38 35 41 Serbia 65 5 79 78 10 5 61 42 294 Chinese Political Science Review (2020) 5:253–331 1 3 Co-operation and Development (OECD) in North America and Europe show very slight improvements in reducing poverty, because these countries have largely elimi- nated extreme poverty and suffer from ceiling effects. Russia has much more room for improvement in its anti-poverty efforts. Due to data limitations (especially the missing data), we could not obtain a reliable ranking for many countries in Asia and Africa. However, it is worth noting that China’s poverty alleviation campaign in recent years has borne outstanding results. However, as data sources differ in statistical criteria, the results were not duly represented on the index, which greatly undermined its rankings. Our poverty index is based on three key indicators: Gini coefficient, poverty gap, and poverty rate. Unfortunately, because of differences in statistical methods and criteria, we have not found well-testified data related to China to replace or complement World Bank’s data for the indicators mentioned above. 1. Gini coefficient Gini coefficient is a widely used indicator for measuring the income disparity in a country or region. “Gini coefficient is calculated with income data by household Table 13 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Netherlands 35 58 64 62 44 40 40 43 Montenegro 25 82 81 35 3 62 54 44 Slovakia 47 64 57 65 30 27 36 45 Peru 12 25 15 25 18 22 16 46 Slovenia 50 68 21 71 32 43 15 47 Kyrgyzstan 62 14 80 73 4 61 2 48 Iceland 39 29 54 31 62 21 21 49 United States of America 45 55 59 57 37 25 49 50 Norway 40 70 63 50 43 35 34 51 Turkey 37 23 41 36 25 33 31 52 Finland 48 50 52 53 39 26 22 53 France 41 44 65 40 42 42 33 54 Russian Federation 30 8 48 10 49 23 55 55 Georgia 58 30 6 12 8 11 38 56 Poland 29 57 73 64 35 28 13 57 Honduras 56 80 78 24 19 39 14 58 Belarus 4 18 2 3 6 63 10 59 Malta 3 71 14 2 3 NA 1 60 Iran (Islamic Republic of) NA NA NA NA 66 60 47 NA Croatia 61 17 69 54 50 8 NA NA China NA 46 45 14 23 14 NA NA Republic of North Macedonia 42 27 13 16 12 47 NA NA Bulgaria 64 77 33 42 13 NA NA NA Djibouti NA NA NA 79 NA NA NA NA Mongolia NA 9 3 NA NA NA NA NA New Zealand NA NA 39 NA NA NA NA NA Pakistan NA 40 NA NA NA NA NA NA 295 1 3 Chinese Political Science Review (2020) 5:253–331 or group. It varies with the source and criteria of the basic income data used. For instance, whether the income standards are testified, whether the general income standards or the disposable income standards should be used, whether the income data include in-kind benefits from government, or whether annual CPIs or regional price differences are taken into account, all these have an effect on the coefficient and its changes. One must pay attention to the comparability of basic data when making inter- national or temporal comparisons of Gini coefficients.”5 The Chinese National Bureau of Statistics has released China’s Gini coefficients from 2003 to 2016, which range from 0.45 to 0.5. They were calculated based on data from a sample survey of urban and rural household income and expenditure around the country,6 whereas the Gini coefficients released by the World Bank were calcu- lated based on data from surveys carried out by national governments and estimates Fig. 6 2017 index ranking of poverty reduction on a world map 5 WANG, Pingping. A Few Issues Regarding the Calculation of Gini Coefficients on China’s Resident Income. (http://www.stats .gov.cn/ztjc/ztfx/grdd/20130 2/t2013 0201_59099 .html). 6 As of December 2012, the national survey of urban and rural household income and expenditure had a sample size of 140,000 households—74,000 rural from 896 countries, randomly sampled through a strat- ified and multi-phase process, and 66,000 urban from 476 cities and counties, randomly sampled through a stratified and two-phase process. At the end of 2012, the National Bureau of Statistics established a new and unified household survey system and a uniform income index system, and selected a consistent survey sample. Since December 1, 2012, the 400,000 sampled households across the country have been surveyed pursuant to the new survey system. Please see WANG, Pingping: A Few Issues Regarding the Calculation of Gini Coefficients on China’s Resident Income. http://www.stats.gov.cn/ztjc/ztfx/grdd/201302/t20130201_59099.html 296 Chinese Political Science Review (2020) 5:253–331 1 3 made by agencies under the World Bank.7 The two adopt different statistical methods and samples. From the above line chart, we can see that China’s Gini coefficients calculated by the National Bureau of Statistics are even higher than those of the World Bank. There- fore, they cannot be directly used to replace the latter’s statistics. To ensure that the poverty data are comparable across countries, we chose to use the Gini coefficients calculated by the World Bank. 2. Poverty gap Apart from the Gini coefficients, a lot of data on China’s poverty gap in recent years are also missing. Available data are particularly lacking in the calculation of each country’s poverty alleviation index. Poverty gap refers to the average income shortfall in proportion to the poverty line of poor families,8 and it is used to measure the depth of poverty in a country. The uni- versally accepted criteria are the following: poverty gap at $1.90 a day (2011 PPP) (% population); poverty gap at $3.20 a day (2011 PPP) (% of population); and poverty gap at $5.50 a day (2011 PPP) (% of population). It means that different poverty lines (e.g., US$1.9 per day, US$3.2 per day, US$5.5 per day, etc.) are defined on the basis of the international purchasing power parity (PPP) of 2011 to measure the size of impover- ished population and poverty gap.9 Chinese authorities adopt the average disposable income of urban residents, rural residents, and others as criteria. So far, we have not found any shared criterion between them and the World Bank. According to the Working Plan for Archiving Pov- erty Alleviation and Development Records published by the State Council’s Leading 9 Purchasing Power Parity (PPP), as a currency converter, is used as a solution to the issue of currency differences in cross-national comparisons, corrected for differences in price level. PPP estimates cur- rently used by the World Bank are based on the 2011 round of International Comparison Program, which is by far the most extensive international statistical survey involving the largest number of countries. 7 See: https ://datab ank.world bank.org/metad atagl ossar y/gende r-stati stics /serie s/SI.POV.GINI. 8 Please see: “Millennium Development Goal Indicators.” United Nations. 2008. https://databank.worldbank.org/metadataglossary/gender-statistics/series/SI.POV.GINI 297 1 3 Chinese Political Science Review (2020) 5:253–331 Group Office of Poverty Alleviation and Development in April 2014, during China’s “targeted poverty alleviation” campaign, “the national rural poverty line—RMB 2736 yuan, the per capita net income of rural residents in 2013 (2300 yuan in constant prices in 2010)—shall be adopted as the identification standard for the impoverished population.”10 The standard is adjusted every year in accordance with variations in CPI, cost-of-living index, etc., and it is much different from the statistical methods and criteria used by the World Bank and relevant UN organizations.11 For this reason, it is not suitable for direct cross-national comparisons, and is thus not included in the calculation of our index. 3. Poverty rate We faced the same issue in the poverty rate calculation. World Bank’s poverty headcount ratios are calculated based on the poverty lines determined on the basis of the PPP in 2011 (e.g., US$1.9 per day, US$3.2 per day, US$5.5 per day, etc.): poverty headcount ratio at $1.90 a day (2011 PPP) (% of population); poverty headcount ratio at $3.20 a day (2011 PPP) (% of population); poverty headcount ratio at $5.50 a day (2011 PPP) (% of population). In its targeted poverty alleviation campaign, the Chinese government adopted “pov- erty incidence” as a major evaluation criterion. [Poverty incidence = number of indi- viduals in poverty ÷ total headcount × 100%]. This rate is based on the poverty line of RMB 2300 yuan (per capita net income), which makes it rather different from World Bank’s statistical methods and criteria, and not suitable as a direct alternative to them. To ensure a plausible and operable comparative analysis of poverty data across dif- ferent countries, including that on China, we chose one single data source—the World Bank. The downside of this choice is that not all the data of every country in every year are represented by the resulting rankings, as many years’ numbers are missing and the data of recent years are not updated in a timely manner. We believe that the issue will be resolved when new data are released in succession, and we keep improv- ing our calculation methods. There is no doubt that “targeted poverty alleviation” and China’s other agendas for enhancing global justice have borne remarkable results. In the future, our project will be dedicated to the collection of country-specific data and exploration of conversion methods of different poverty lines to improve the compara- bility of China’s poverty alleviation data with its international counterparts and extend the coverage of the Global Justice-Anti-poverty Index to more countries and years. 3.8 Issue 7: Education Education is essential for global justice. The  Convention on the Rights of the Child and the  International Covenant on Economic, Social and Cultural Rights  explicitly 10 At the Central Working Conference on Poverty Alleviation and Development in Beijing on November 29, 2011, Wen Jiabao, then Premier of the State Council, announced that the central government would adopt the average net income of rural residents—RMB 2300 yuan—as the new national poverty relief standard. 11 Many research institutes and media agencies believe that the poverty line currently adopted by China is higher than that of the World Bank. 298 Chinese Political Science Review (2020) 5:253–331 1 3 highlight states’ obligations to take measures toward realizing the right to education, to which the principle of CDDR applies (as elaborated in our concept paper). There is an international consensus as to the protection of rights to education. To improve global justice, steps must be taken by nation states to realize the basic human right of receiving education, using the maximum available resources. 3.8.1 Dimensions and Indicators Based on internationally recognized components of the right to education, this pro- ject measures each country’s influence on global justice in education by focusing on two categories: performance and contribution. We first focus on individual countries’ performance on basic education, by measuring the extent to which an individual’s educational right is adequately protected. Drawing on the literature, this category is measured along three thematic indicators: (1) school enrollment ratio, (2) children out of school, (3) pupil–teacher ratio. For the category of contribution, we assess the gov- ernment’s effort to improve its basic education nationwide by measuring government expenditure on education per capital while determining if a state is fulfilling its basic obligation.  The World Bank is the main source of global information on education (Table 14). 3.8.2 Results Using index construction methods (see the methodological section), this sub-index ranks 76–105 countries from 2010 to 2017 (Table 15). The data indicate that most countries take the necessary measures to protect chil- dren’s educational rights. The OECD countries including Sweden, Finland, the United Kingdom, Germany, France, and Ireland do particularly well in this domain. East Asian countries emphasis on education has been well documented, China and the Republic of Korea score relatively strongly in this issue area. Some rich countries in the Middle East and the Gulf Region such as Qatar and Israel have also invested heavily in education. Except for the countries with missing data, developing countries, including Pakistan, Tanzania, Niger, Mali, Guinea, and Senegal, are at the bottom. This finding largely occurs, because these countries either have insufficient educa- tional resources or are experiencing political instability. Although the country ranking fluctuates slightly, the general pattern is stable over the observation decade. On a world map (Fig. 7), the 2017 index ranking of countries in the domain of edu- cation illustrates that the Nordic countries including Sweden and Finland maintain their good score and are closely followed by other Western European countries such as the United Kingdom, Germany, and France. Notably, Eastern European countries, namely, Cyprus, Slovenia, Poland, and Hungary are also doing well compared with many other countries and regions in the world. Some disparities exist in the implementation of the right to education in Latin America, with Argentina ranked 18th and Uruguay at 46th. Countries in Western Africa and South Asia are in a concerning situation of fulfilling the mandates that the state actively create the conditions necessary for individuals’ enjoyment 299 1 3 Chinese Political Science Review (2020) 5:253–331 Ta bl e 14 D at a on e du ca tio n C at eg or y D im en si on In di ca to r D at a so ur ce C ov er ag e Pe rf or m an ce E nr ol lm en t r at io Sc ho ol e nr ol lm en t r at io , p ri m ar y (% n et ) W or ld B an k 76 –1 05 (2 01 0– 20 17 ) C om pl et io n ra te s C hi ld re n ou t o f s ch oo l ( % o f p ri m ar y sc ho ol a ge ) Te ac he rs Pu pi l– te ac he r r at io , p ri m ar y C on tr ib ut io n G ov er nm en t e xp en di tu re o n ed uc at io n G ov er nm en t e xp en di tu re o n ed uc at io n pe r c ap ita l 300 Chinese Political Science Review (2020) 5:253–331 1 3 Table 15 Country ranking in education aspect of promoting global justice Country 2010 2011 2012 2013 2014 2015 2016 2017 Sweden 1 2 1 2 5 4 4 1 Finland 3 4 6 5 8 5 5 2 China 4 1 3 7 4 6 3 3 New Zealand NA NA NA 9 13 10 6 4 United Kingdom of Great Britain and Northern Ireland 7 10 10 12 12 8 7 5 Israel 10 13 14 15 17 14 10 6 Germany 8 9 11 13 15 12 8 7 France 6 8 12 14 16 13 9 8 Ireland 5 6 9 11 14 11 12 9 Qatar 2 5 8 6 11 9 11 10 Cyprus 9 11 13 17 19 16 16 11 Republic of Korea 16 18 19 20 22 15 17 12 Spain 12 16 16 21 23 19 19 13 Slovenia 14 17 20 22 25 20 21 14 Portugal 15 19 22 23 26 21 22 15 Oman NA NA NA NA NA NA NA 16 Estonia 19 22 26 25 27 23 24 17 Argentina 25 25 28 28 32 24 26 18 Latvia 27 30 24 24 30 26 29 19 Chile 28 35 33 33 38 28 30 20 Cuba 20 23 23 35 40 30 31 21 Barbados 17 21 25 27 29 22 27 22 Brazil 18 20 21 26 28 27 28 23 Poland 21 26 29 30 31 29 32 24 Hungary 23 31 35 40 39 33 34 25 Lithuania 22 27 31 31 33 31 33 26 Russian Federation 29 24 27 29 35 37 39 27 Bahrain NA 36 34 38 41 32 35 28 Malaysia 30 29 30 34 37 35 36 29 Mauritius 39 44 45 46 44 39 40 30 Croatia 26 33 38 37 43 38 41 31 Mexico 24 28 36 39 36 34 37 32 Saint Lucia NA NA 49 45 47 42 38 33 Saint Vincent and the Grenadines 36 52 40 56 83 40 42 34 Maldives 37 54 53 50 53 41 43 35 Belize 38 49 47 53 50 45 44 36 Romania 40 50 56 63 59 51 47 37 Peru 50 55 59 57 54 50 46 38 Eswatini 45 46 48 55 58 56 51 39 Bulgaria 42 47 54 47 57 55 52 40 Belarus 35 45 43 43 45 48 50 41 Kazakhstan 43 40 41 42 46 47 54 42 301 1 3 Chinese Political Science Review (2020) 5:253–331 Table 15 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Colombia 34 39 44 44 49 52 55 43 Tunisia 41 43 50 52 52 49 48 44 Bolivia (Plurinational State of) NA 62 64 66 62 59 56 45 Uruguay 48 32 69 36 87 44 94 46 Serbia 44 42 51 51 55 57 53 47 Bhutan 65 68 70 71 70 61 58 48 Ukraine 53 53 46 49 63 64 66 49 Iran (Islamic Republic of) 32 38 39 54 51 58 45 50 Indonesia 33 37 42 67 85 75 79 51 Lebanon 61 64 63 62 66 63 62 52 Republic of Moldova 52 56 61 59 65 67 65 53 Cabo Verde 51 57 62 65 68 68 61 54 Georgia 63 69 71 74 73 78 64 55 Albania 58 63 66 69 67 70 63 56 Mongolia 59 60 58 60 64 66 59 57 Uzbekistan NA NA NA 68 61 60 57 58 Sri Lanka 69 73 77 81 76 77 60 59 Lesotho 57 58 67 70 71 72 71 60 El Salvador NA 65 NA 72 72 71 67 61 Djibouti 70 66 75 73 78 73 73 62 Honduras NA NA NA 75 74 74 69 63 Lao People’s Democratic Republic 74 78 81 83 81 81 74 64 Nicaragua 67 75 76 78 77 80 70 65 Guatemala 64 71 74 79 79 79 77 66 Sao Tome and Principe NA 70 73 76 82 84 75 67 Kyrgyzstan 71 74 72 77 80 83 76 68 Philippines 78 85 93 88 75 76 72 69 Azerbaijan 56 61 65 61 60 65 68 70 Myanmar NA 88 NA NA NA NA NA 71 Tajikistan 72 77 78 86 84 85 80 72 Nepal 68 76 79 85 88 86 78 73 Ghana NA 81 88 80 86 82 84 74 Mauritania 76 82 86 89 90 90 89 75 Benin 73 79 82 87 89 87 81 76 Togo 77 80 85 92 91 88 85 77 Senegal 81 87 87 91 95 89 93 78 Gambia 80 84 83 93 92 93 87 79 Cameroon NA 86 90 NA 94 NA 86 80 Burundi 75 NA NA NA NA 97 97 81 Cote d’Ivoire 92 92 96 99 98 96 91 82 Cambodia 79 83 89 94 93 92 90 83 Rwanda NA NA NA NA NA NA 88 84 302 Chinese Political Science Review (2020) 5:253–331 1 3 Table 15 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Guinea 87 90 92 95 97 95 96 85 Burkina Faso 91 95 97 100 99 99 98 86 Mali 90 93 95 101 100 100 100 87 Niger 93 97 98 102 101 101 101 88 Bangladesh 84 NA NA NA NA NA NA 89 United Republic of Tanzania 88 98 100 103 102 103 102 90 Pakistan 95 101 102 105 105 105 103 91 Norway NA NA NA 1 1 1 1 NA Switzerland NA NA 4 3 6 NA 2 NA Malta NA 15 17 16 18 18 13 NA Japan NA NA NA 18 20 NA 14 NA Singapore NA NA NA NA NA NA 15 NA Italy 11 14 15 19 21 17 18 NA Brunei Darussalam NA NA 18 NA 24 NA 20 NA Grenada NA NA NA NA NA NA 23 NA Costa Rica NA 34 32 32 34 25 25 NA Fiji 55 59 60 64 56 62 49 NA India 96 100 NA 104 103 104 82 NA Sierra Leone NA NA 84 90 NA 91 83 NA Central African Republic 85 89 91 NA NA NA 92 NA Liberia NA NA NA NA 96 94 95 NA Chad 89 94 NA 96 NA 98 99 NA Iceland NA 3 5 4 7 2 NA NA Luxembourg NA NA 2 NA 3 3 NA NA Belgium NA NA NA NA 10 7 NA NA Turkey NA NA 37 41 42 36 NA NA Micronesia NA NA NA NA NA 43 NA NA Ecuador 46 51 52 48 48 46 NA NA South Africa NA NA NA NA NA 53 NA NA Dominica NA NA NA NA NA 54 NA NA Vanuatu NA NA NA NA NA 69 NA NA South Sudan NA 96 NA NA NA 102 NA NA Denmark NA NA NA NA 2 NA NA NA United States of America NA 7 7 8 9 NA NA NA Namibia 31 NA NA NA 69 NA NA NA Saudi Arabia 49 12 99 10 104 NA NA NA Viet Nam 47 41 55 58 NA NA NA NA Zimbabwe NA NA 80 82 NA NA NA NA Comoros NA NA NA 84 NA NA NA NA Mozambique NA NA 94 97 NA NA NA NA Uganda 86 91 NA 98 NA NA NA NA Paraguay NA NA 57 NA NA NA NA NA 303 1 3 Chinese Political Science Review (2020) 5:253–331 of education. As shown in this index, significant worldwide disparities are observed in guaranteeing basic access to education, with developed countries substantially outper- forming developing countries. According to UN treaties, if individual countries do not have the resources to fulfill this obligation, “the international community has a clear obli- gation to assist”. Education is linked to another issue area covered by this project, human- itarian aid, which we discuss in another section of this report. Table 15 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Guyana 62 67 68 NA NA NA NA NA Kenya NA NA 101 NA NA NA NA NA Panama NA 48 NA NA NA NA NA NA Timor-Leste 66 72 NA NA NA NA NA NA Ethiopia 94 99 NA NA NA NA NA NA San Marino 13 NA NA NA NA NA NA NA Congo 54 NA NA NA NA NA NA NA Solomon Islands 60 NA NA NA NA NA NA NA Guinea-Bissau 82 NA NA NA NA NA NA NA Angola 83 NA NA NA NA NA NA NA Fig. 7 2017 index ranking of education on a world map 304 Chinese Political Science Review (2020) 5:253–331 1 3 3.9 Issue 8: Public Health Health is primarily viewed by many as a domestic issue. The connections can be unclear between public health as a domestic public good and public health as a country’ contribu- tion to the global public good. The rational is that when one country progresses in public health, the country improves the whole world’s public health. Notably, the global commu- nity, especially the United Nations, has taken many measures (e.g., sustainable development goals) to solve public health problems to promote an equal, just, and prosperous world. 3.9.1 Dimensions and Indicators Although public health has normally been considered a national public good, its deficit constitutes inequality at the global level, and its improvement has positive implications for global justice. In measuring public health, we first focus on health-related perfor- mance by measuring the protection of an individual’s right to health and then focus on a government’s effort to improve its health system. The dimensions we use include life expectancy, health infrastructure, key diseases, and governmental expenditure (Table 16). These data are from the WHO and covers 195 countries from 2010 to 2017. In this study, a major challenge is the missing value problem. Thus, data quality is unsatisfactory. Many countries, especially developing countries, have incomplete public health data. 3.9.2 Results In this section, we present the ranking result of countries’ contributions to global justice from the public health perspective (Table 17). The Table 17 shows 9 years of results— from 2010 to 2017—in 195 countries. Table 17 shows that China, Finland, France, Sweden, the United Kingdom, Germany, and Norway have consistently performed the best in of global justice from a public health perspective. India and some African countries do not perform well in this regard and have much more to do to catch up. The general trend is that countries tend to do better when their economy is more developed. Thus, developing countries still have a many improve- ments to make in public health (Fig. 8). In 2017, Sweden, Finland, China, New Zealand, and the United Kingdom are the top five countries in promoting global justice from a public health perspective. China is the only developing country among the top five nations. 3.10 Issue 9: Protection of Women and Children Protection of women and children is essential for global justice. Each country’s con- tribution (e.g., finical contribution) to women and children is difficult to distinguish from other issues such as public health, education, and poverty. Thus, we focus on the performance dimension, because it is measurable. Additionally, the protection issue concerns gender inequality and children’s situations. First, we use the ratio of health, demography, economic status, and political empowerment between male and female to measure gender inequality from the perspective of gender-based gaps in resources 305 1 3 Chinese Political Science Review (2020) 5:253–331 Ta bl e 16 D at a on p ub lic h ea lth C at eg or y D im en si on In di ca to rs D at a so ur ce C ov er ag e Pe rf or m an ce L ife e xp ec ta nc y L ife e xp ec ta nc y at b ir th (y ea rs ), bo th s ex es W H O 16 9– 17 8 (2 01 0– 20 17 ) L ife e xp ec ta nc y at a ge 6 0 (y ea rs ), bo th s ex es In fa nt m or ta lit y ra te (p ro ba bi lit y of d yi ng b et w ee n bi rt h an d ag e 1 pe r 1 00 0 liv e bi rt hs ), bo th se xe s N eo na ta l m or ta lit y ra te (p er 1 00 0 liv e bi rt hs ), bo th s ex es U nd er fi ve m or ta lit y ra te (p ro ba bi lit y of d yi ng b y ag e 5 pe r 1 00 0 liv e bi rt hs ), bo th s ex es A du lt m or ta lit y ra te (p ro ba bi lit y of d yi ng b et w ee n 15 a nd 6 0  ye ar s pe r 1 00 0 po pu la tio n) , b ot h se xe s H ea lth in fr as tr uc tu re Po pu la tio n us in g at le as t b as ic d ri nk in g- w at er s er vi ce s (% ), to ta l Po pu la tio n us in g at le as t b as ic s an ita tio n se rv ic es (% ), to ta l Po pu la tio n pr ac tic in g op en d ef ec at io n (% ), to ta l K ey d is ea se s Tr ea tm en t s uc ce ss ra te : n ew T B c as es Tu be rc ul os is e ff ec tiv e tr ea tm en t c ov er ag e (% ) R ai se d bl oo d pr es su re (S B P ≥ 1 40 o r D B P ≥ 9 0) (a ge -s ta nd ar di ze d es tim at e) 1 8  ye ar s, b ot h se xe s R ai se d fa st in g bl oo d gl uc os e (≥ 7 .0  m m ol /L o r o n m ed ic at io n) (a ge -s ta nd ar di ze d es tim at e) 18  y ea rs , b ot h se xe s In ci de nc e of tu be rc ul os is (p er 1 00 ,0 00 p op ul at io n pe r y ea r) , b ot h se xe s C on tr ib ut io n E xp en di tu re O ut -o f- po ck et e xp en di tu re a s a pe rc en ta ge o f t ot al e xp en di tu re o n he al th O ut -o f- po ck et e xp en di tu re (O O P) p er c ap ita in U S$ C ur re nt h ea lth e xp en di tu re (C H E ) p er c ap ita in U S$ D om es tic g en er al g ov er nm en t h ea lth e xp en di tu re (G G H E -D ) p er c ap ita in U S$ D om es tic p ri va te h ea lth e xp en di tu re (P V T- D ) p er c ap ita in U S$ 306 Chinese Political Science Review (2020) 5:253–331 1 3 Table 17 Country ranking in the public health aspect of promoting global justice Country 2010 2011 2012 2013 2014 2015 2016 2017 China 8 6 5 4 3 4 1 1 United States of America 4 4 4 5 4 3 2 2 Sweden 13 5 6 3 5 5 3 3 Germany 7 9 10 9 8 6 5 4 Austria 12 12 13 12 12 12 6 5 Belgium 10 11 12 11 11 10 8 6 Denmark 5 8 9 8 7 7 7 7 Singapore 22 21 19 21 21 18 12 8 United Kingdom of Great Britain and Northern Ireland 21 20 20 17 14 9 10 9 Republic of Korea 24 24 23 23 23 19 14 10 Italy 15 15 15 18 19 17 13 11 Iceland 18 17 17 19 15 11 11 12 Luxembourg 3 7 7 6 6 8 9 13 Cyprus 23 22 22 24 25 25 20 14 Venezuela (Bolivarian Republic of) 31 35 31 32 29 26 21 15 Spain 19 19 21 22 22 21 18 16 Australia 9 10 8 10 10 27 17 17 Norway 2 2 2 2 2 2 4 18 Azerbaijan 32 31 30 29 28 28 24 19 Malta 27 27 26 27 26 24 22 20 Netherlands 16 16 16 16 18 16 16 21 New Zealand 25 25 24 25 24 22 19 22 Canada 11 13 11 14 16 13 15 23 Mexico 29 29 28 30 31 30 26 24 Russian Federation 39 36 34 33 32 32 27 25 Georgia 33 32 33 34 36 36 30 26 Sudan 70 66 48 48 45 40 36 27 Cambodia 62 56 38 37 34 35 34 28 France 17 18 18 20 20 20 23 29 Iran (Islamic Republic of) 30 30 32 42 40 37 35 30 Yemen 42 42 45 41 37 49 29 31 Grenada 40 39 43 44 43 39 37 32 Bangladesh 65 63 56 52 49 51 41 33 Bahamas 35 40 37 45 47 34 33 34 Morocco 46 45 47 46 44 47 38 35 Trinidad and Tobago 51 44 36 40 38 33 32 36 Bulgaria 52 46 50 43 42 44 39 37 Portugal 26 26 29 31 30 31 28 38 Argentina 87 83 70 60 59 48 43 39 Ecuador 48 52 40 51 39 38 42 40 Saint Lucia 38 33 44 35 57 42 40 41 Armenia 53 76 46 47 48 45 46 42 307 1 3 Chinese Political Science Review (2020) 5:253–331 Table 17 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Sierra Leone 57 54 54 61 60 55 48 43 Mauritius 55 55 52 53 46 50 45 44 Barbados 44 43 42 49 50 46 44 45 Tajikistan 43 53 53 55 51 52 50 46 Paraguay 45 47 55 58 54 54 49 47 Chile 41 37 39 38 41 41 47 48 Guatemala 54 48 49 57 56 58 52 49 Albania 56 59 57 62 53 56 54 50 Egypt 47 50 51 54 55 59 53 51 Brazil 34 34 35 39 35 43 51 52 Serbia 66 64 67 63 65 63 56 53 Montenegro 73 73 82 67 64 61 55 54 Ukraine 80 72 73 70 68 64 58 55 Honduras 74 67 66 77 79 70 61 56 Japan 6 3 3 7 9 23 31 57 Philippines 75 69 69 71 77 85 67 58 Malaysia 93 81 84 79 76 78 59 59 Sri Lanka 79 74 72 89 87 73 66 60 Kazakhstan 69 68 59 50 58 60 57 61 Lebanon 37 38 62 66 69 62 64 62 Guinea-Bissau 108 86 89 90 80 84 70 63 Uzbekistan 83 82 77 78 85 76 69 64 Afghanistan 68 57 71 69 75 79 63 65 Hungary 58 58 61 65 67 67 65 66 Turkmenistan 89 95 94 95 84 81 72 67 Lithuania 71 70 60 59 52 57 60 68 Djibouti 105 101 107 102 117 101 80 69 Finland 14 14 14 13 13 14 25 70 Republic of Moldova 78 90 78 87 95 86 78 71 Mongolia 103 105 87 82 91 88 77 72 Bahrain 119 123 81 76 74 66 62 73 Nepal 106 111 99 86 90 91 76 74 Cameroon 61 106 65 64 62 74 74 75 Costa Rica 92 88 86 83 83 69 71 76 Panama 107 100 104 100 96 80 75 77 Tunisia 94 92 90 88 86 87 82 78 Viet Nam 64 60 83 81 78 83 81 79 Belarus 137 122 137 97 93 100 85 80 Latvia 36 41 41 36 33 53 68 81 United Arab Emirates 67 71 79 72 66 68 73 82 Estonia 88 96 92 80 71 75 79 83 Algeria 113 108 116 117 113 106 95 84 308 Chinese Political Science Review (2020) 5:253–331 1 3 Table 17 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Nicaragua 124 119 98 93 105 98 91 85 Comoros 117 77 100 84 89 94 86 86 Togo 95 80 96 108 97 96 89 87 Mauritania 81 87 97 110 98 89 84 88 Mali 86 99 105 96 109 97 93 89 Central African Republic 110 102 102 104 100 102 94 90 Republic of North Macedonia 82 94 101 114 88 92 90 91 Lao People’s Democratic Republic 112 78 80 113 115 112 102 92 Antigua and Barbuda 101 109 111 112 108 109 96 93 Guyana 125 124 121 92 102 107 103 94 Peru 85 85 88 99 114 104 100 95 Uruguay 104 103 95 85 92 93 88 96 Slovakia 50 51 58 56 63 65 83 97 Czechia 63 65 76 73 73 82 87 98 Maldives 91 97 114 107 103 90 97 99 Saudi Arabia 111 114 112 111 101 95 101 100 Cote d’Ivoire 84 84 103 109 107 108 104 101 Slovenia 49 61 74 75 72 77 92 102 Haiti 140 148 142 131 128 120 109 103 Guinea 97 91 85 91 110 110 106 104 Turkey 126 116 118 116 111 113 107 105 Kyrgyzstan 114 117 117 115 104 99 99 106 El Salvador 109 110 113 120 119 114 114 107 Iraq 135 134 106 106 99 118 111 108 Kuwait 98 98 93 98 94 105 105 109 Jamaica 115 107 126 126 122 115 130 110 Indonesia 129 127 129 130 129 122 110 111 Bosnia and Herzegovina 102 104 108 101 106 111 108 112 Senegal 122 121 119 118 120 119 113 113 Qatar 77 93 110 103 82 72 98 114 Liberia 144 133 134 129 132 116 112 115 Uganda 155 152 131 143 138 129 121 116 Romania 123 125 127 123 124 121 116 117 Burkina Faso 141 118 124 135 126 127 120 118 Benin 120 126 120 119 118 123 117 119 Zambia 138 129 132 139 141 135 124 120 Colombia 128 128 133 134 131 130 122 121 Rwanda 143 142 139 142 142 132 125 122 Madagascar 127 135 125 144 121 136 118 123 Fiji 150 145 144 147 143 134 126 124 Chad 96 113 115 121 127 125 119 125 Belize 132 131 130 128 134 128 127 126 309 1 3 Chinese Political Science Review (2020) 5:253–331 Table 17 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Bolivia (Plurinational State of) 133 137 135 133 137 133 128 127 Cabo Verde 134 138 138 136 144 137 129 128 Myanmar 59 49 91 94 112 117 123 129 Niger 76 79 75 124 136 139 132 130 Bhutan 163 162 140 141 139 138 133 131 Dominican Republic 100 112 122 122 130 131 131 132 Saint Vincent and the Grenadines 146 147 64 146 61 164 115 133 Cuba 151 150 154 151 148 140 135 134 Equatorial Guinea 145 143 148 138 133 143 137 135 Suriname 154 154 152 154 151 146 143 136 Thailand 142 146 145 145 145 144 138 137 Jordan 130 132 136 132 135 141 136 138 Eswatini 156 155 159 159 159 151 140 139 Croatia 90 115 123 125 125 126 134 140 Congo 118 139 151 149 153 149 142 141 Kenya 116 136 155 153 156 152 146 142 Ghana 161 163 147 157 147 145 139 143 Lesotho 157 158 156 156 155 148 141 144 Namibia 160 159 160 160 161 157 147 145 Tonga 158 157 158 158 158 153 144 146 Oman 149 151 149 152 149 147 145 147 United Republic of Tanzania 159 160 170 169 168 160 152 148 Papua New Guinea 167 168 166 168 166 161 153 149 Burundi 148 149 153 155 152 156 149 150 Angola 153 156 157 162 154 158 151 151 Pakistan 136 140 146 148 150 155 150 152 Gambia 152 153 150 150 157 154 148 153 Vanuatu 170 169 168 166 170 166 158 154 Seychelles 165 164 164 164 163 159 155 155 Solomon Islands 173 171 172 173 172 168 160 156 Botswana 168 167 165 171 167 165 157 157 Samoa 164 165 163 165 165 163 156 158 Gabon 147 130 143 140 140 150 154 159 Malawi 171 173 171 172 171 167 161 160 Sao Tome and Principe 131 144 161 163 160 162 159 161 South Africa 172 172 173 174 173 170 162 162 Timor-Leste 166 166 167 167 164 169 163 163 Kiribati 174 174 175 176 174 171 164 164 Ethiopia 175 175 174 175 175 173 165 165 Mozambique 176 176 176 177 176 174 166 166 Democratic Republic of the Congo 169 170 169 170 169 172 167 167 Nigeria 177 177 177 178 177 175 168 168 310 Chinese Political Science Review (2020) 5:253–331 1 3 and opportunities in countries. Second, we focus on the gender difference of children’s situations from the perspective of poverty, health, and education. 3.10.1 Dimensions and Indicators Table 18 reports the indicators used in protection of women and children. We use two data sources. The information on children’s health and demography is from the WHO, and the remainders are from the World Bank. Table 17 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 India 178 178 178 179 178 176 169 169 Switzerland 1 1 1 1 1 1 NA NA Ireland NA NA NA 15 17 15 NA NA Greece 20 23 25 28 27 29 NA NA Poland NA NA NA 74 70 71 NA NA Libya 99 89 109 105 116 103 NA NA Zimbabwe 121 120 128 127 123 124 NA NA Brunei Darussalam 139 141 141 137 146 142 NA NA South Sudan NA NA 63 68 81 NA NA NA Micronesia (Federated States of) 162 161 162 161 162 NA NA NA Israel 28 28 27 26 NA NA NA NA Syrian Arab Republic 60 62 68 NA NA NA NA NA Eritrea 72 75 NA NA NA NA NA NA Fig. 8 2017 index ranking of public health on a world map 311 1 3 Chinese Political Science Review (2020) 5:253–331 Ta bl e 18 D at a on th e pr ot ec tio n of w om en a nd c hi ld re n C at eg or y D im en si on s In di ca to rs D at a so ur ce C ov er ag e Pe rf or m an ce (w om en ) H ea lth a nd d em og ra ph y L ife e xp ec ta nc y at b ir th , r at io fe m al e to m al e (y ea rs ) W or ld B an k 15 5– 15 9 (2 01 0– 20 17 ) M at er na l m or ta lit y ra tio fe m al e to m al e (m od el ed e st im at e, p er 10 0, 00 0 liv e bi rt hs ) N um be r o f u nd er fi ve d ea th o f t ho us an ds , f em al e Se x ra tio a t b ir th (m al e to fe m al e bi rt hs ) E co no m ic s ta tu s U ne m pl oy m en t, fe m al e (% o f f em al e la bo r f or ce ) V ul ne ra bl e em pl oy m en t, ra tio fe m al e to m al e W ag e an d sa la ri ed w or ke rs , r at io fe m al e to m al e Po lit ic al s ta tu s Pr op or tio n of s ea ts h el d by w om en in n at io na l p ar lia m en ts (% ) Pe rf or m an ce (c hi ld re n) C hi ld re n he al th a nd d em og ra ph y N um be r o f d ea th s pe r 1 00 0 + (i nc lu de 1 3 in di ca to rs ) W H O Pr ev al en ce o f t hi nn es s am on g ch ild re n an d ad ol es ce nt s, B M I < − 2 st an da rd d ev ia tio ns b el ow th e m ed ia n (c ru de e st im at e) (% ) C hi ld re n ed uc at io n (t he e du ca tio na l di ff er en ce b et w ee n m al es a nd fe m al es ) Sc ho ol e nr ol lm en t, pr im ar y (g ro ss ), ge nd er p ar ity in de x (G PI ) W or ld B an k 312 Chinese Political Science Review (2020) 5:253–331 1 3 3.10.2 Results The ranking results of countries’ contributions to global justice from the perspective of protection of women and children during 2010–2017 are presented in Table 19. Our robust result during 2010–2017 in Table 19 shows that countries such as China, the United States, Russia, Mexico, Germany, and other North European countries are at the top levels for protection of women and children, which suggests that these coun- tries do well in protecting their women and children. However, most African countries (e.g., Nigeria, Congo, Egypt, and Kenya) and South Asian countries (e.g., Pakistan, Indonesia, and Afghanistan) display low levels. The following map displays the results of the protection of women and children in 2017. The higher the ranking in the protection of women and children, and vice versa. As the map shows, generally, the countries in the south and west and the countries in Africa rank lower, whereas China, the North American countries, and European coun- tries rank high (Fig. 9). Protection of women and children focuses on gender inequality. As introduced in the methodology section, we use a population-based weighed score of indices to con- struct the score of this issue in the perspective of global justice. Thus, the highest score does not mean the top level of protection of women and children. For instance, China ranks first of all countries in this protection of women and children in 2017. However, this finding does not mean that China performs the best of all countries; by contrast, the finding means that China has made a sufficient number women and children far better off than the world average. 3.11 Global Justice Index: Our Main Results This study has the limitation of the dilemma of missing values. For instance, for cli- mate change, most notably, the data on carbon emission are unavailable after 2014. Another limitation is that, for anti-poverty, the data for many countries were unavail- able. Thus, we provide a global justice index that excludes anti-poverty (Table 20) and climate change (Table  21), respectively. Next, we provide a global justice index that excludes anti-poverty and climate change (Table 22). Finally, we provide a global jus- tice index of all nine issues (Table 23). In Table 20, the United States, the United Kingdom, Germany, China, and France rank as the top five in the global justice index that excludes anti-poverty. Other devel- oped countries such as Switzerland, Sweden, Italy, Canada, and Finland also perform well in the global justice index. Developing countries, by contrast, do not perform well in general. China is an exception, because this largest developing country ranks fourth in the index. Brazil’s ranking is approximately 15th, which is the second-highest coun- try in the developing world. The results in Table 20 imply that the more developed a country’s economy, the higher its ranking in the global justice index. Figure  10 also presents the index of global justice (except for anti-poverty) in 2014. In Table  21, the United States, the United Kingdom, Germany, Italy, France, and other developed countries perform well in the global justice index except for climate change. The United States ranks the highest in the index. Among developing countries, 313 1 3 Chinese Political Science Review (2020) 5:253–331 Table 19 Country ranking in protection of women and children Country 2010 2011 2012 2013 2014 2015 2016 2017 China 1 1 1 1 1 1 1 1 United States of America 2 2 2 2 2 2 2 2 Russian Federation 3 3 3 3 3 5 5 3 Mexico 7 6 5 5 5 3 3 4 Germany 5 4 4 4 4 4 4 5 United Kingdom of Great Britain and Northern Ireland 6 7 7 8 7 6 6 6 France 8 8 6 7 8 8 8 7 Italy 9 9 8 9 10 9 9 8 Spain 10 12 12 14 13 12 11 9 Argentina 11 10 10 11 11 11 10 10 Poland 16 15 15 16 15 14 12 11 Republic of Korea 12 11 9 12 12 13 13 12 Canada 14 14 13 15 14 15 15 13 Ukraine 19 19 17 20 16 16 16 14 Australia 17 17 16 17 19 18 18 15 Viet Nam 23 22 11 22 20 17 17 16 Brazil 139 140 20 10 9 10 14 17 Thailand 15 13 14 13 17 33 19 18 Netherlands 18 18 19 19 21 20 20 19 Saudi Arabia 60 54 45 24 29 23 27 20 Philippines 13 16 18 18 18 19 21 21 Sweden 26 24 23 23 22 21 22 22 Kazakhstan 31 30 26 27 25 22 26 23 Cuba 24 21 21 21 24 25 25 24 Belgium 27 25 24 25 23 24 24 25 Romania 35 41 38 35 35 31 31 26 Belarus 28 26 25 26 26 26 23 27 Syrian Arab Republic 70 37 35 28 28 28 29 28 Colombia 58 108 110 62 27 27 28 29 Czechia 29 28 28 31 30 29 32 30 Portugal 42 33 39 40 34 30 30 31 Israel 41 40 40 39 42 34 34 32 Dominican Republic 109 62 63 46 45 54 40 33 Austria 34 32 34 33 33 32 33 34 Finland 38 35 36 34 39 37 35 35 Norway 36 36 37 36 40 39 36 36 Denmark 37 38 42 41 43 41 37 37 Switzerland 39 39 41 42 41 40 39 38 Bulgaria 44 44 44 43 50 45 46 39 Peru 25 29 43 67 55 46 38 40 Serbia 52 55 49 52 46 44 45 41 Ireland 47 49 50 50 54 52 47 42 314 Chinese Political Science Review (2020) 5:253–331 1 3 Table 19 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Venezuela 40 27 27 30 31 38 61 43 Hungary 43 43 48 44 44 43 44 44 Chile 49 51 56 49 49 48 52 45 Tunisia 55 64 60 54 47 50 51 46 New Zealand 45 45 47 45 52 51 49 47 Slovakia 50 50 52 51 56 57 53 48 Bolivia 105 105 105 109 58 53 48 49 Malaysia 22 20 22 29 32 42 50 50 Costa Rica 46 47 51 48 57 58 54 51 Kyrgyzstan 51 53 57 57 59 60 57 52 Senegal 72 46 29 56 53 47 59 53 Lebanon 104 81 76 60 63 64 60 54 Ecuador 30 31 31 38 36 36 43 55 Kuwait 57 59 58 55 62 62 56 56 Uzbekistan 33 34 33 37 38 56 58 57 Republic of Moldova 54 56 59 58 60 59 62 58 Nicaragua 61 48 53 59 61 61 64 59 Lithuania 56 61 62 61 64 63 63 60 Tajikistan 59 63 67 63 65 65 65 61 Croatia 53 57 66 64 66 69 67 62 Slovenia 62 58 68 65 68 66 66 63 Rwanda 32 42 46 53 51 49 55 64 Uruguay 67 68 73 69 69 70 69 65 Panama 78 66 74 73 67 67 68 66 Greece 48 52 61 71 71 71 75 67 Qatar 64 69 69 66 70 73 71 68 Mongolia 77 74 72 70 74 74 72 69 Estonia 65 67 71 72 76 75 73 70 Latvia 66 65 70 68 73 72 70 71 Trinidad and Tobago 69 70 75 74 77 76 77 72 Albania 96 82 94 93 88 84 81 73 Georgia 73 76 85 81 81 78 76 74 Republic of North Macedonia 74 77 79 77 79 77 79 75 El Salvador 99 88 81 88 75 68 78 76 Cyprus 68 72 78 76 80 82 80 77 Mauritius 71 71 77 75 78 79 82 78 Iceland 75 78 82 82 86 83 83 79 Malta 80 79 86 83 85 85 85 80 Bahrain 79 73 80 78 83 81 84 81 Montenegro 83 80 83 84 87 87 87 82 Luxembourg 76 75 84 85 84 86 86 83 Suriname 86 84 89 87 90 88 89 84 315 1 3 Chinese Political Science Review (2020) 5:253–331 Table 19 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Armenia 101 101 102 105 105 102 98 85 Barbados 84 83 87 86 89 89 90 86 Saint Vincent and the Grenadines 90 89 91 90 91 90 92 87 Samoa 88 87 92 92 92 91 91 88 Tonga 89 90 93 91 93 92 93 89 Brunei Darussalam NA NA NA NA NA NA 94 90 Cabo Verde 97 94 99 99 100 98 96 91 Belize 95 96 97 96 99 97 100 92 Vanuatu 91 91 95 94 95 95 97 93 Fiji 85 85 88 89 94 93 95 94 Sao Tome and Principe 93 93 96 95 97 96 99 95 Sri Lanka 81 104 65 79 82 100 104 96 Solomon Islands 94 95 98 97 102 101 101 97 Guyana 87 86 90 98 98 99 102 98 Maldives 98 99 101 102 103 104 105 99 Timor-Leste 100 100 100 101 101 103 103 100 Bhutan 92 98 103 103 106 105 106 101 Paraguay 106 103 107 80 104 94 107 102 Comoros 103 109 104 106 108 106 109 103 Djibouti 111 106 108 107 109 108 110 104 Honduras 63 60 64 100 96 80 108 105 Equatorial Guinea 108 107 109 108 110 110 111 106 Botswana 113 111 112 110 111 112 113 107 Azerbaijan 102 97 111 114 112 116 117 108 Oman 110 102 106 104 107 107 114 109 Eswatini 119 116 116 113 114 113 115 110 Namibia 114 112 115 116 115 111 112 111 Lesotho 115 114 114 112 113 114 116 112 Gambia 112 110 113 115 116 115 118 113 Cambodia 121 119 121 121 117 109 119 114 Congo 126 123 118 120 121 121 122 115 Lao People’s Democratic Republic 124 118 120 119 122 122 121 116 Mauritania 116 115 117 118 119 119 120 117 Algeria 136 131 55 47 48 55 74 118 Burundi 122 122 123 122 123 123 124 119 Guatemala 117 92 119 117 118 120 125 120 Nepal 21 23 30 111 120 117 123 121 Togo 127 126 126 123 125 124 127 122 Madagascar 128 127 125 126 126 126 128 123 Central African Republic 132 132 132 125 128 128 131 124 Malawi 125 125 124 127 130 129 132 125 Papua New Guinea 130 128 127 129 127 131 129 126 316 Chinese Political Science Review (2020) 5:253–331 1 3 Table 19 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Uganda 107 117 122 128 129 127 130 127 Sierra Leone NA 130 129 130 NA 133 133 128 Zambia 129 129 130 131 134 136 134 129 Turkey 141 135 133 134 131 130 136 130 United Republic of Tanzania 120 120 131 137 133 132 135 131 Benin 131 134 135 132 135 137 138 132 Iran 145 145 142 139 132 134 139 133 Morocco 137 133 134 133 136 138 140 134 Myanmar 133 137 136 136 139 135 137 135 Burkina Faso 138 138 140 138 137 140 143 136 Guinea 135 136 137 135 138 139 142 137 South Africa 142 141 139 142 140 142 141 138 Niger 143 142 141 140 141 143 144 139 Ghana 134 139 138 141 142 141 145 140 India 155 155 152 150 152 153 150 141 Mozambique 140 143 143 147 145 145 146 142 Cameroon 146 147 146 143 143 144 147 143 Bangladesh 20 NA NA NA NA NA NA 144 Chad 147 146 145 146 146 147 148 145 Mali 144 144 144 144 144 146 149 146 Ethiopia 151 150 149 152 151 151 151 147 Yemen 150 149 148 149 148 150 152 148 Kenya 148 148 147 148 147 149 153 149 Afghanistan 152 151 150 151 149 152 154 150 Indonesia 4 5 54 145 150 154 156 151 Egypt 153 153 151 153 153 156 155 152 Democratic Republic of the Congo 154 154 153 154 154 155 157 153 Pakistan 156 156 155 155 155 157 158 154 Nigeria 157 157 154 156 156 158 159 155 Japan NA NA NA 6 6 7 7 NA United Arab Emirates NA NA 32 32 37 35 41 NA Bahamas 82 NA NA NA NA NA 88 NA Liberia NA 124 NA NA 124 125 126 NA Democratic People’s Republic of Korea NA NA NA NA NA 118 NA NA Angola 149 152 NA NA NA 148 NA NA Turkmenistan NA NA NA NA 72 NA NA NA Zimbabwe NA NA 128 124 NA NA NA NA Eritrea 123 121 NA NA NA NA NA NA Gabon NA 113 NA NA NA NA NA NA Guinea-Bissau 118 NA NA NA NA NA NA NA 317 1 3 Chinese Political Science Review (2020) 5:253–331 China, Slovenia, and Mexico’s rankings are notable. China ranks fourth in the years of 2011, 2012, 2014, and 2015. However, the problem is that we only have ranking results of approximately 40 countries from 2010 through 2017. Figure 11 also shows the index of global justice (except for climate change) in 2017. Table  22 shows the results of the global justice index without considering climate change and anti-poverty from 2010 to 2017. This table presents approximately 100 coun- tries’ ranking results. Once again, the United States, Germany, the United Kingdom, China, and France rank as the top five in the global justice index that excludes climate change and anti-poverty. China performs best in the developing world, followed by Rwanda, another developing country, in 2017. Other developing countries such as Bangladesh, Brazil, Nepal, and Cyprus rank in the top 20, as well. Figure 12 also shows the index of global justice (except for climate change and anti-poverty) in 2017. Table  23 presents the global justice index with nine issues areas covered. The United States, the United Kingdom, Germany, China, and France rank as the top five in the global justice index. China is the highest ranking developing country and the United States performs best in the index. Other developed countries that rank among the top 20 include Switzerland, Norway, Sweden, Italy, Finland, Canada, Denmark, Belgium, Spain, Ireland, and Luxembourg. In the developing world, Brazil, Russia, Mexico, Slovenia, and Costa Rica have also done well in the index. We compare Tables  20, 21, 22, and 23, and observe that most countries’ rankings are consistent in these tables. For example, the United States always ranks first in these results. Similarly, China consistently ranks among the top of the developing countries. This Fig. 9 2017 index ranking of protection of women and children on a world map 318 Chinese Political Science Review (2020) 5:253–331 1 3 Table 20 Global Justice Index (except for anti-poverty) Country 2010 2011 2012 2013 2014 United States of America 1 1 1 1 1 United Kingdom of Great Brit- ain and Northern Ireland 3 3 3 2 2 Germany 2 2 2 3 3 China 7 5 5 5 4 France 4 4 4 4 5 Switzerland NA NA 6 6 6 Norway NA NA NA 7 7 Sweden 9 9 7 8 8 Italy 5 7 9 10 9 Finland 10 10 10 11 10 Canada 8 8 8 9 11 Denmark NA NA NA NA 12 Spain 6 6 11 12 13 Belgium NA NA NA NA 14 Japan NA NA NA 14 15 Brazil 12 12 12 15 16 Australia 11 11 13 13 17 Nepal 64 13 15 17 18 New Zealand NA NA NA 16 19 Ukraine 52 59 57 55 20 Luxembourg NA NA 14 NA 21 Ghana NA 73 18 23 22 Russian Federation 14 14 16 19 23 Ireland NA NA NA 18 24 Senegal 19 20 21 25 25 Portugal 13 15 17 24 26 Uruguay 15 16 23 20 27 India 68 40 NA 21 28 Iceland NA 22 19 22 29 Mexico 18 19 22 28 30 Slovenia 16 18 20 27 31 United Republic of Tanzania 26 28 39 32 32 Cambodia 33 33 32 33 33 Costa Rica NA 21 24 29 34 Cameroon NA 45 46 NA 35 Estonia 21 25 29 34 36 Togo 49 51 42 41 37 Latvia 25 29 26 30 38 Argentina 23 23 27 31 39 Chile 28 30 33 35 40 Guatemala 22 24 30 36 41 Hungary 32 32 35 40 42 319 1 3 Chinese Political Science Review (2020) 5:253–331 Table 20 (continued) Country 2010 2011 2012 2013 2014 Peru 24 26 34 39 43 Cyprus 20 27 31 37 44 Indonesia 17 17 25 38 45 Ecuador 41 44 44 47 46 Lithuania 40 41 40 43 47 Benin 37 48 48 48 48 Albania 29 35 38 45 49 Poland NA NA NA 44 50 Bulgaria 36 43 43 46 51 Honduras NA NA NA 51 52 Malaysia 39 38 37 49 53 Sri Lanka 38 42 50 50 54 Croatia 30 46 49 53 55 Nicaragua 45 56 51 56 56 Romania 42 53 55 59 57 Philippines 31 36 41 54 58 Georgia 35 47 52 57 59 Serbia 48 58 59 64 60 Niger 57 62 61 65 61 Turkey NA NA 45 52 62 El Salvador NA 50 NA 61 63 Tajikistan 43 49 53 60 64 Pakistan 27 37 63 58 65 Colombia 44 55 56 63 66 Mauritius 46 57 60 67 67 Malta NA 60 62 62 68 Mongolia 62 70 69 69 69 Belarus 59 65 68 70 70 Azerbaijan 50 61 65 72 71 Bolivia (Plurinational State of) NA 63 66 73 72 Namibia 51 NA NA NA 73 Kyrgyzstan 55 64 70 74 74 Tunisia 54 67 71 76 75 Republic of Moldova 61 68 73 77 76 Kazakhstan 63 69 74 78 77 Saudi Arabia 56 34 67 26 78 Lebanon 58 66 72 79 79 Qatar NA NA NA 75 80 Republic of Korea 65 71 75 80 81 Bahrain NA 72 NA NA 82 Iran (Islamic Republic of) 69 75 76 82 83 Israel 34 52 47 42 NA Viet Nam 66 74 54 66 NA 320 Chinese Political Science Review (2020) 5:253–331 1 3 comparison implies that our results are robust and scientific. Figure 13 also shows the index of global justice in 2014. 4 Conclusion This paper focuses on a measurement and operationalization of global justice that identifies, evaluates, and assesses the performance of nation states in conducting pro- jects and endeavors to promote justice at the global level. First, we briefly introduced our conceptualization of global justice and our development of the theoretical frame- work, which provides a basis for the subsequent measurement. Through the synthesis of three approaches—rights-based, goods-based, and virtue-based—embedded in the historical discussion of global justice, we proposed the principles of CBDR-RC and CDDR to further determine nine issue areas of crucial importance: climate change, peacekeeping, humanitarian aid, counter-terrorism, cross-national criminal police cooperation, anti-poverty, education, public health, and the protection of women and children. By collecting, processing, and normalizing the data, we generate ranks for each issue area and aggregate them to create the final index. Through various visu- alization tools, we provide a visual exhibition of the performance and contribution of each nation state in the areas of global justice, the regional comparisons, and the trends of change over time. Our result shows that the United States, the United Kingdom, Germany, China, and France rank as the top five in the global justice index. The United States undoubtedly ranks first in the index. China ranks the highest among developing countries. In gen- eral, developed countries have performed better than their counterparts in the develop- ing world. This finding implies that the more developed and wealthier a country, the higher its ranking. The contribution of this paper can be summarized as follows: (1) the global justice index is the first attempt to measure the performance and contribution of nation states to enhance justice at the global level; (2) the index presents a rich, comprehensive Table 20 (continued) Country 2010 2011 2012 2013 2014 Mozambique NA NA 64 68 NA Zimbabwe NA NA 36 71 NA Uzbekistan NA NA NA 81 NA Paraguay NA NA 28 NA NA Kenya NA NA 58 NA NA Myanmar NA 31 NA NA NA Panama NA 39 NA NA NA Ethiopia 60 54 NA NA NA Congo 47 NA NA NA NA Bangladesh 53 NA NA NA NA Angola 67 NA NA NA NA 321 1 3 Chinese Political Science Review (2020) 5:253–331 Table 21 Global Justice Index (except for climate change) Country 2010 2011 2012 2013 2014 2015 2016 2017 United States of America 1 1 1 1 1 1 1 1 Germany 3 3 3 3 3 3 2 2 United Kingdom of Great Britain and Northern Ireland 2 2 2 2 2 2 3 3 France 4 5 5 4 5 5 4 4 Sweden 8 9 9 10 9 8 8 5 Canada 7 8 8 7 10 10 6 6 Finland 9 10 11 12 12 13 11 7 Republic of Korea 34 43 46 43 46 15 10 8 Spain 6 7 10 11 13 14 9 9 Russian Federation 15 18 15 29 21 20 14 10 Brazil 11 11 13 13 19 17 15 11 Portugal 16 12 16 19 24 21 18 12 Mexico 19 14 17 17 20 22 12 13 Slovenia 17 16 27 21 29 25 24 14 Cyprus 36 NA NA NA 23 48 NA 15 Belarus 35 35 45 48 47 19 33 16 Indonesia 23 20 24 34 34 35 19 17 Latvia 25 22 22 25 28 31 22 18 Honduras NA NA NA 38 39 37 32 19 Serbia 10 38 23 24 43 45 13 20 Hungary 21 19 21 31 27 30 23 21 Peru 28 30 35 36 35 36 26 22 Georgia 24 32 42 41 45 43 28 23 Estonia 12 21 36 23 41 39 21 24 Lithuania 26 26 28 28 25 24 20 25 Argentina 30 28 18 20 22 32 17 26 Kyrgyzstan 20 41 33 35 50 33 37 27 Uruguay 27 27 20 15 38 23 25 28 Romania 22 23 31 30 36 40 30 29 El Salvador NA 31 NA 40 37 42 27 30 Colombia 31 40 44 39 48 46 35 31 Bolivia (Plurinational State of) NA 44 40 42 44 41 34 32 Republic of Moldova 33 42 38 45 52 38 31 33 Kazakhstan 32 45 39 46 30 28 16 34 Ukraine 37 34 34 44 17 11 36 35 Italy 5 6 6 9 8 7 5 NA Norway NA NA NA 6 7 6 7 NA Costa Rica NA 29 30 26 32 29 29 NA Iran (Islamic Republic of) NA NA NA NA 49 47 38 NA Malta NA 15 26 47 51 NA 39 NA China NA 4 4 5 4 4 NA NA Belgium NA NA NA NA 14 9 NA NA 322 Chinese Political Science Review (2020) 5:253–331 1 3 picture of global justice that offers a guide to global justice for individuals who want to observe annual achievement and changes over time; (3) the index is a barometer for the international community to implement and monitor global justice in different issue areas, enabling international organizations and policymakers to target resources and design policies more effectively; and (4) the index can be used as an analytical tool to compare relevant global justice issues across nations and included as a dependent vari- able or independent variable in causal analysis. Notably, this study has several limitations: (1) based on the previous theoretical research, we used nine issues to measure global justice. We excluded refugees and other issues which might have also been highly related to global justice for various reasons. (2) Because no theoretical research has provided the weight of the nine issues to global justice, we, in practice, assume that the nine issues equally con- tribute to global justice. How to weight the nine issues is a subject for further theo- retical research. (3) Due to data limitations, we did not include all countries in this study. For some issues, such as poverty, climate change, and education, the prob- lem of missing values is more serious. Thus, in further research, we will continue to collect data to overcome this problem. (4) The results of this study only apply to comparisons between countries in each year because of the various numbers of countries each year. Regarding our conclusion, a comparison of the global justice index across years is inappropriate. Table 21 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Luxembourg NA NA 12 NA 15 12 NA NA Iceland NA 13 14 16 18 16 NA NA Ireland NA NA NA 14 16 18 NA NA Poland NA NA NA 22 26 26 NA NA Ecuador 29 36 37 37 40 27 NA NA Turkey NA NA 25 27 31 34 NA NA Croatia 18 33 29 33 33 44 NA NA Switzerland NA NA 7 8 6 NA NA NA Denmark NA NA NA NA 11 NA NA NA Bulgaria 13 24 32 32 42 NA NA NA Israel 14 17 19 18 NA NA NA NA Paraguay NA NA 41 NA NA NA NA NA Mongolia NA 39 43 NA NA NA NA NA Pakistan NA 25 NA NA NA NA NA NA Panama NA 37 NA NA NA NA NA NA 323 1 3 Chinese Political Science Review (2020) 5:253–331 Table 22 Global Justice Index (except for of both climate change and anti-poverty) Country 2010 2011 2012 2013 2014 2015 2016 2017 United States of America 1 1 1 1 1 1 1 1 Germany 3 3 3 3 3 3 2 2 United Kingdom of Great Britain and Northern Ireland 2 2 2 2 2 2 3 3 China 6 4 4 4 4 4 4 4 France 4 5 5 5 5 5 5 5 Sweden 10 10 9 10 9 8 9 6 Canada 8 8 8 8 10 9 7 7 Australia 9 9 10 11 12 12 10 8 Spain 7 7 11 13 16 14 11 9 Finland 11 11 12 12 13 11 14 10 Republic of Korea 81 89 90 97 97 15 13 11 Rwanda NA NA NA NA NA NA 12 12 Bangladesh 55 NA NA NA NA NA NA 13 New Zealand NA NA NA 19 22 18 21 14 Russian Federation 14 13 15 20 24 21 20 15 Brazil 12 12 14 17 18 19 17 16 Nepal 82 21 21 23 23 20 18 17 Cyprus 13 16 17 26 29 23 25 18 Senegal 24 26 25 30 26 24 19 19 Argentina 18 20 18 25 28 26 26 20 Mexico 16 17 19 27 25 22 22 21 Portugal 15 18 20 29 31 28 30 22 Ghana NA 90 29 33 30 30 24 23 Burkina Faso 57 49 58 48 38 36 23 24 Indonesia 21 22 27 41 54 40 29 25 Chile 25 27 26 32 36 33 32 26 Slovenia 22 28 30 35 39 35 39 27 Qatar 17 23 22 24 32 25 37 28 Uruguay 20 19 24 22 34 32 33 29 Estonia 29 37 38 44 45 41 42 30 Togo 52 57 51 42 35 38 31 31 Hungary 31 30 35 43 47 44 44 32 Malaysia 28 31 31 38 44 48 41 33 Barbados 83 91 91 98 46 39 45 34 Mongolia 44 61 42 39 41 46 36 35 Latvia 27 32 34 36 42 43 48 36 United Republic of Tanzania 54 56 73 47 40 52 34 37 Cambodia 51 50 49 56 48 45 35 38 Ukraine 48 47 41 40 19 29 40 39 Lithuania 32 35 36 45 50 47 50 40 Mauritius 40 46 54 60 58 53 52 41 Oman NA NA NA NA NA NA NA 42 324 Chinese Political Science Review (2020) 5:253–331 1 3 Table 22 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Mauritania 58 66 74 79 79 77 43 43 Serbia 41 45 52 58 60 55 49 44 Cuba 60 72 77 66 71 60 61 45 Bulgaria 38 41 50 57 63 58 56 46 Peru 36 38 43 55 62 59 51 47 Azerbaijan 30 34 39 53 53 51 53 48 Benin 35 42 46 46 49 50 38 49 Tunisia 37 52 57 65 68 61 57 50 Kazakhstan 42 44 44 51 61 57 59 51 Guatemala 39 39 48 61 64 62 58 52 Belarus 53 59 64 64 67 66 62 53 Romania 47 58 65 70 72 67 64 54 Cameroon NA 84 83 NA 51 NA 55 55 Albania 45 53 59 67 69 68 60 56 Lebanon 43 51 61 76 84 73 68 57 Honduras NA NA NA 69 73 70 65 58 Croatia 33 43 55 63 70 64 74 59 Republic of Moldova 50 60 60 68 75 72 71 60 Georgia 56 62 67 71 76 78 72 61 El Salvador NA 63 NA 73 77 75 69 62 Bahrain NA 69 72 74 83 69 73 63 Guinea 74 82 85 83 88 83 66 64 Burundi 89 NA NA NA NA 71 63 65 Nicaragua 61 70 70 72 78 79 75 66 Niger 66 68 62 62 56 63 47 67 Sri Lanka 62 65 69 75 74 74 76 68 Lao People’s Democratic Republic 63 64 71 78 81 81 78 69 Philippines 34 36 47 59 66 80 77 70 Tajikistan 59 67 76 77 80 82 79 71 Saint Vincent and the Grenadines 67 80 63 84 82 87 80 72 Belize 71 81 81 86 90 84 84 73 Lesotho 69 76 80 82 87 89 83 74 Kyrgyzstan 70 77 79 81 85 86 82 75 Maldives 87 94 95 93 96 94 87 76 Colombia 72 83 86 88 93 91 90 77 Uzbekistan NA NA NA 85 89 90 85 78 Pakistan 23 29 68 52 65 65 54 79 Bolivia NA 85 87 90 92 92 91 80 Mali 65 75 37 49 52 56 88 81 Gambia 73 79 82 87 91 93 89 82 Myanmar NA 74 NA NA NA NA NA 83 Sao Tome and Principe NA 78 88 91 94 95 92 84 325 1 3 Chinese Political Science Review (2020) 5:253–331 Table 22 (continued) Country 2010 2011 2012 2013 2014 2015 2016 2017 Iran (Islamic Republic of) 84 92 92 99 99 96 94 85 Bhutan 90 96 96 102 100 98 95 86 Italy 5 6 7 9 7 7 6 NA Norway NA NA NA 6 6 6 8 NA India 86 33 NA 21 27 27 15 NA Japan NA NA NA 14 15 NA 16 NA Singapore NA NA NA NA NA NA 27 NA Malta NA 25 28 31 33 31 28 NA Costa Rica NA 40 40 50 57 42 46 NA Sierra Leone NA NA 93 101 NA 76 67 NA Chad 77 88 NA 89 NA 88 70 NA Liberia NA NA NA NA 86 85 81 NA Central African Republic 46 48 66 NA NA NA 86 NA Fiji 88 95 94 100 98 97 93 NA Belgium NA NA NA NA 14 10 NA NA Luxembourg NA NA 13 NA 17 13 NA NA Iceland NA 15 16 18 21 16 NA NA Ireland NA NA NA 15 20 17 NA NA Poland NA NA NA 34 37 34 NA NA South Africa NA NA NA NA NA 37 NA NA Turkey NA NA 32 37 43 49 NA NA Ecuador 49 54 56 54 55 54 NA NA Switzerland NA NA 6 7 8 NA NA NA Denmark NA NA NA NA 11 NA NA NA Saudi Arabia 26 14 33 16 59 NA NA NA Namibia 68 NA NA NA 95 NA NA NA Israel 19 24 23 28 NA NA NA NA Viet Nam 85 93 78 80 NA NA NA NA Zimbabwe NA NA 53 92 NA NA NA NA Comoros NA NA NA 94 NA NA NA NA Uganda 78 87 NA 95 NA NA NA NA Mozambique NA NA 89 96 NA NA NA NA Paraguay NA NA 45 NA NA NA NA NA Guyana 64 71 75 NA NA NA NA NA Kenya NA NA 84 NA NA NA NA NA Panama NA 55 NA NA NA NA NA NA Ethiopia 80 73 NA NA NA NA NA NA Timor-Leste 76 86 NA NA NA NA NA NA Guinea-Bissau 75 NA NA NA NA NA NA NA Congo 79 NA NA NA NA NA NA NA Solomon Islands 91 NA NA NA NA NA NA NA Angola 92 NA NA NA NA NA NA NA 326 Chinese Political Science Review (2020) 5:253–331 1 3 Table 23 Global Justice Index (all nine issues) Country 2010 2011 2012 2013 2014 United States of America 1 1 1 1 1 United Kingdom of Great Brit- ain and Northern Ireland 2 2 3 2 2 Germany 3 3 2 3 3 China NA 5 5 9 4 France 4 4 4 4 5 Switzerland NA NA 6 7 6 Norway NA NA NA 6 7 Sweden 8 9 7 5 8 Italy 5 8 9 10 9 Finland 9 10 10 12 10 Canada 7 7 8 8 11 Denmark NA NA NA NA 12 Spain 6 6 11 11 13 Belgium NA NA NA NA 14 Brazil 10 11 12 13 15 Ireland NA NA NA 17 16 Luxembourg NA NA 13 NA 17 Ukraine 37 37 38 44 18 Russian Federation 15 20 14 31 19 Mexico 24 15 17 20 20 Iceland NA 21 16 21 21 Slovenia 14 13 19 16 22 Portugal 16 12 15 15 23 Latvia 25 18 18 22 24 Costa Rica NA 17 22 19 25 Argentina 31 32 23 23 26 Hungary 21 19 21 29 27 Lithuania 28 26 26 28 28 Cyprus 36 NA NA NA 29 Poland NA NA NA 25 30 Croatia 17 33 29 33 31 Peru 27 25 27 30 32 Estonia 11 14 25 18 33 Uruguay 26 24 20 14 34 Indonesia 18 16 24 34 35 Romania 20 22 33 27 36 Honduras NA NA NA 36 37 El Salvador NA 28 NA 41 38 Turkey NA NA 32 35 39 Ecuador 30 34 35 38 40 Bulgaria 13 23 34 32 41 Colombia 29 35 36 39 42 327 1 3 Chinese Political Science Review (2020) 5:253–331 Table 23 (continued) Country 2010 2011 2012 2013 2014 Georgia 19 31 39 40 43 Serbia 12 41 28 24 44 Bolivia (Plurinational State of) NA 42 40 42 45 Kazakhstan 34 45 44 46 46 Republic of Korea 32 40 43 43 47 Belarus 35 38 46 47 48 Kyrgyzstan 23 39 37 37 49 Iran (Islamic Republic of) NA NA NA NA 50 Malta NA 29 41 48 51 Republic of Moldova 33 44 42 45 52 Israel 22 30 31 26 NA Paraguay NA NA 30 NA NA Mongolia NA 43 45 NA NA Pakistan NA 27 NA NA NA Panama NA 36 NA NA NA Fig. 10 2014 index ranking of global justice (except for anti-poverty) on a world map 328 Chinese Political Science Review (2020) 5:253–331 1 3 Fig. 11 2017 index ranking of global justice (except for climate change) on a world map Fig. 12 2017 index ranking of global justice (except for both climate change and poverty) on a world map 329 1 3 Chinese Political Science Review (2020) 5:253–331 Acknowledgements The Fudan IAS acknowledges the generous support which it has received from institu- tions such as the Fudan University School of International Relations and Public Affairs, the Shanghai “Gao Feng” Disciplinary Supporting Funds, Global Policy, Rutgers University, as well as useful comments and suggestions on this report from the following individuals: Arthur Boutellis (International Peace Institute), Daniel Callies (UC San Diego), Jean Marc Coicaud (Rutgers University), Selda Dagistanli (Western Sydney University), Marco Dugato (Università Cattolica del Sacro Cuore), Sakiko Fukuda-Parr (The New School, New York), Yannick Glemarec (Executive Director, UN Green Climate Fund), Carlos Manuel Gradin Lago (UNU-WIDER, United Nations University World Institute for Development), Terry Lynn Karl (Stanford University), Milorad Kovacevic (Chief of Statistics, UN Human Development Report Office), Jane Mans- bridge (Harvard University), and Philippe Schmitter (European University Institute). We are also grateful for helpful advice, comments, and suggestions from Yannick Glemarec, Executive Director, UN Green Cli- mate Fund, and Milorad Kovacevic, Chief of Statistics, UN Human Development Report Office. This is a group project of Fudan IAS. All members of the group named as authors contributed equally to the study and ranked alphabetically. We want to thank our research assistants for their time and important contribu- tions in data collection and aggregation: Jingpu Chen, Xinyu Dai, Ziheng Guo, Xiaoyuan Li, Yawen Lin, Muye Nanshan, Zhenyu Wang, Xiaolan Xia, and Yuqing Zhang. We also thank Xi Lin for his coordination throughout the project, as well as other Fudan IAS fellows, Su Gu, Qingping Liu, and Guodong Sun, for their active participation in and valuable contributions to our ongoing interactive discussions from their dif- ferent perspectives, expertise, and knowledge. Finally, we also owe our thanks to the three anonymous peer reviewers for their valuable comments and constructive criticism. All errors remain ours. Compliance with ethical standards Conflict of interest On behalf of all authors, the corresponding author states that there is no conflict of inter- est. Authors have no financial or personal relationship with a third party whose interests could be positively or negatively influenced by the article’s content. Fig. 13 2014 index ranking of global justice on a world map 330 Chinese Political Science Review (2020) 5:253–331 1 3 Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Com- mons licence, and indicate if changes were made.The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creat iveco mmons .org/licen ses/by/4.0/ References Arneson, R. 1989. Equality and Equal Opportunity for Welfare. Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition, Springer 56 (1): 77–93. Freeman, S. 2006. Book Review—Frontiers of Justice: The Capabilities Approach versus Contractarianism. Texas Law Review 85 (2): 385–430. Guo, S., et  al. 2019. Conceptualizing and Measuring Global Justice: Theories, Concepts, Principles and Indicators. Fudan Journal of the Humanities and Social Sciences 12 (4): 511–546. Mo, D. 2003. Mozi: Basic Writings. Translated by B. Watson. New York: Columbia University Press. Nussbaum, M. 2006. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge: Harvard University Press. Nussbaum, M. 2011. Capabilities, Entitlements, Rights: Supplementation and Critique. Journal of Human Development and Capabilities 12 (1): 23–37. Rawls, J. 1971. A Theory of Justice. Cambridge: The Belknap Press of Harvard University Press. Rawls, J. 1999. The Law of Peoples. Cambridge: Harvard University Press. Richardson, H.S. 2006. Rawlsian Social-Contract Theory and the Severely Disabled. The Journal of Ethics. Springer 10 (4): 419–462. Universal Declaration of Human Rights (1948). http://www.un.org/en/unive rsal-decla ratio n-human -right s/ index .html. Yanfeng Gu (Ph.D. in Social Sciences) is a lecturer and research fellow at the Fudan Institute for Advanced Study in Social Sciences (IAS-Fudan). He received his Ph.D. degree in social sciences at the Hong Kong University of Science and Technology. His primary fields are development economics, economic history, political economy, public administration, and social policy. His research interests include market integration, culture, social trust, and migration. His work has appeared in Chinese Sociological Review, Journal of Chi- nese Political Science, Sociological Study (in Chinese), and other leading journals in area studies. Xuan Qin (Ph.D. degree in political science) is a lecturer and research fellow at the Fudan Institute for Advanced Study in Social Sciences (IAS-Fudan). She received her Ph.D. from the Nanyang Technologi- cal University (NTU Singapore). She is also a research assistant in the program of Participedia, which is developed by Archon Fung (Kennedy School of Government, Harvard University) and Mark E. Warren (Department of Political Science, University of British Columbia). Her current research interests include democratic theory, statistical analysis, and data visualization. She has published several articles in SSCI and CSSCI journals. She currently serves as an editor for the Chinese Political Science Review. Zhongyuan Wang (Ph.D. in Political Science and China Studies) is a lecturer and research fellow at the Fudan Institute for Advanced Study in Social Sciences (IAS-Fudan). He received his doctoral degree from Leiden University (The Netherlands) and was a lecturer in the Program of International Studies at Leiden University. His research interests include comparative political institutions, election studies, political rep- resentation, local politics and governance, European politics, and governmental big data. His work has appeared in European Political Science, China Information, and the Journal of Contemporary China. He currently serves as an editor for the Journal of Chinese Political Science. http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ http://www.un.org/en/universal-declaration-human-rights/index.html http://www.un.org/en/universal-declaration-human-rights/index.html 331 1 3 Chinese Political Science Review (2020) 5:253–331 Chunman Zhang (Ph.D. degree in political science) is a senior lecturer and research fellow at the Fudan Institute for Advanced Study in Social Sciences (IAS-Fudan). He received his doctoral degree from the Johns Hopkins University. His research interests are comparative politics, party politics, environmental gov- ernance, and international relations. He has published over 25 academic papers in both English and Chinese leading journals, such as Environmental Politics, Land Use Policy, Journal of Chinese Political Science, and many other top CSSCI journals. He serves as an editor for Journal of Chinese Political Science. Sujian Guo (Ph.D. degree in political science), an honorary professor of the Fudan Institute for Advanced Study in Social Sciences; Principal Investigator of Fudan IAS Global Justice Index, Professor of Political Science and Director of the Center for US–China Policy Studies at San Francisco State University; former president of Association of Chinese Political Studies; Editor-in-Chief of the Journal of Chinese Political Science, the Journal of Chinese Governance, the Fudan Journal of the Humanities and Social Sciences, and the Chinese Political Science Review; Editor-in-Chief of Rowman & Littlefield-Lexington’s book series “Challenges Facing Chinese Political Development,” and Editor-in-Chief of Shanghai People’s Press book series of “China in Transition.” His research areas include comparative politics and Chinese politics, com- parative political economy, Sino-US relations, sustainable energy and environment, democratic transition, and economic transition. He has published more than 60 academic articles, and authored and edited over 35 books, including Palgrave Handbook on Local Governance in Contemporary China, Governance in Tran- sitional China; Political Science and Chinese Political Studies—The State of Field, The Political Economy of China’s Great Transformation; Global Sustainable Energy Competitiveness Report; Democratic Transi- tions: Modes and Outcomes; Chinese Politics and Government: Power, Ideology and Organization; The Political Economy of Asian Transition from Communism; Post-Mao China, among others. Global Justice Index Report Abstract 1 Introduction 2 Methodology: Construction of the Global Justice Index 2.1 First Step: Convert Indicator Indices 2.2 Second Step: Population-Based Weighting 2.3 Third Step: Calculate the Scores of Both Dimension Indices and Category Indices 2.4 Fourth Step: Calculate the Score of the Issue Index 2.5 Last Step: Calculate Global Justice Index 3 Findings 3.1 Issue 1: Climate Change 3.1.1 Dimensions and Indicators 3.1.2 Results 3.2 Issue 2: Peacekeeping 3.3 Dimensions and Indicators 3.3.1 Results 3.4 Issue 3: Humanitarian Aid 3.4.1 Indicators 3.4.2 Results 3.5 Issue 4: Terrorism and Armed Conflicts 3.5.1 Dimensions and Indicators 3.5.2 Results 3.6 Issue 5: Cross-National Criminal Police Cooperation 3.6.1 Dimensions and Indicators 3.7 Issue 6: Anti-poverty 3.7.1 Dimensions and Indicators 3.7.2 Results 3.8 Issue 7: Education 3.8.1 Dimensions and Indicators 3.8.2 Results 3.9 Issue 8: Public Health 3.9.1 Dimensions and Indicators 3.9.2 Results 3.10 Issue 9: Protection of Women and Children 3.10.1 Dimensions and Indicators 3.10.2 Results 3.11 Global Justice Index: Our Main Results 4 Conclusion Acknowledgements References 
work_73kq3wa55bhivcdjpk4blat2le	----	398 398..399 A Swedish national database study concluded that mortality risks were highest in those untreated with antipsychotics. 4 However, this conclusion maybe an oversimplification and we suggest ‘untreated’ here describes being poorly engaged, lacking care and support rather than simply ‘untreated with antipsychotics’; indeed, ‘treated with antipsychotics’ could be a proxy for well engaged, supported and receiving a range of inter- ventions comparable to those recommended by NICE. Another anomaly was the study’s reported average age of 36 years for its FEP subgroup, much older than usually reported.5 Thus the study may have missed substantial numbers of younger people, a particularly vulnerable group for antipsychotic-induced weight gain and metabolic disturbance, limiting its applicability to more typically aged FEP populations.6 Nevertheless the finding that lower mortality correlated with low and moderate antipsychotic dosing supports the importance of good prescribing. Our simple collective view in providing this editorial as general practitioner, nurse and psychiatrist together, is that health inequality could be reduced by healthcare systems collaboratively embracing a more preventive approach in relation to the physical health of this vulnerable group from the earliest opportunity. 1 Mitchell AJ, De Hert M. Promotion of physical health in persons with schizophrenia: can we prevent cardiometabolic problems before they begin? Acta Psychiatr Scand 2015; 132: 83–5. 2 Barnes TR. Evidence-based guidelines for the pharmacological treatment of schizophrenia: recommendations from the British Association for Psychopharmacology. J Psychopharmacol 2011; 25: 567–620. 3 Dixon LB, Stroup ST. Medications for first-episode psychosis: making a good start. Am J Psychiatry 2015; 172: 209–11. 4 Tiihonen J, Mittendorfer-Rutz E, Torniainen M, Alexanderson K, Tanskanen A. Mortality and cumulative exposure to antipsychotics, antidepressants, and benzodiazepines in patients with schizophrenia: an observational follow-up study. Am J Psychiatry 7 Dec 2015 (doi: 10.1176/appi.ajp.2015.15050618). 5 Kirkbride JB, Fearon P, Morgan C, Dazzan P, Morgan K, Tarrant J, et al. Heterogeneity in incidence rates of schizophrenia and other psychotic syndromes: findings from the 3-center AeSOP study. Arch Gen Psychiatry 2006; 63: 250–8. 6 Correll CU, Manu P, Olshanskiy V, Napolitano B, Kane JM, Malhotra AK. Cardiometabolic risk of second-generation antipsychotic medications during first-time use in children and adolescents. JAMA 2009; 302: 1765–73. David Shiers, MBChB, MRCGP, MRCP(UK), School of Psychological Sciences, University of Manchester, Manchester M13 9PL, UK. Email: david.shiers@ doctors.org.uk; Jonathan Campion, MBBS, MRCPsych, South London and Maudsley NHS Foundation Trust, and Faculty of Brain Sciences, University College London, London; Tim Bradshaw, RMN, PhD, School of Nursing, Midwifery and Social Work, University of Manchester, Manchester, UK doi: 10.1192/bjp.208.4.398a ‘Lethal discrimination’, ideology and social justice Perhaps the journal risks accusations of hyperbole by adopting the slogan of ‘lethal discrimination’ in relation to the shockingly high standardised mortality ratios (SMRs) of people with severe mental illness (SMI). Other serious illnesses (cancer, etc.) have high SMRs but to suggest that this is due to lethal discrimination would attract criticism. Taggart & Bailey1 are right to draw attention to the high SMRs in people with SMI. This is consistent with accepted tenets of moral philosophy, particularly liberal political philosophy. Central to this are principles that citizens enjoy maximum liberty (subject to respect for the liberty of others) and, second, that social arrangements permit social inequality only to the degree that this improves the well-being of the least advantaged.2 People with SMI are among the most disadvantaged. Table 1 of the editorial indicates that those with SMI in contact with services fare better in the USA than in the UK. This will not surprise those who have expressed dismay about developments in mental health services in the UK. 3 However, the important question is whether the way US mental health services are funded, commissioned and managed may be better. Psychiatrists need to remain open minded about what systems deliver best results, if we are to achieve our aims effectively.4 International comparisons are notoriously difficult to make. A host of health and social indicators however suggest worse outcomes in more unequal societies. Because the USA is a more unequal society, Table 1 is counterintuitive. Perhaps Table 1 is misleading. Taggart & Bailey do not tell us whether the US data include outcomes of individuals with SMI receiving care in prison. In the past 40 years the proportion of people with SMI who are compulsorily detained in the USA has remained the same. However, whereas 40 years ago 75% were in mental hospitals and 25% in penal institutions, now the proportions are 5% and 95% respectively.5 Table 1 will have validity only if the outcomes of imprisoned individuals with SMI are included. Should further research confirm US superiority, another issue might arise: does more restrictive treatment (in prison) achieve better outcomes? If so, psychiatrists will have to face deeply uncomfortable questions. Could it be that enhanced incarceration leads to lesser freedom but a lower SMR? Would lower a SMR be the effect of more intensive psychopharmacological treatment or is there less psychopharmacological intervention in prison and the higher UK SMR is due to more psychopharmacological treatment in the community? What kind of societies lead to best outcomes for people with SMI? Health outcomes do not depend only on healthcare. To participate constructively in debate and action aimed at reducing SMRs in those with SMI, psychiatrists need to become familiar with the complex issues addressed by political philosophy2 as well as public mental health. They also need to be aware that although they may master evidence and political ethical reasoning, social ideology will sometimes prevail as to what happens on the ground.6 Perhaps it is anxiety secondary to this that impelled invention of the concept of lethal discrimination in people with SMI. Declaration of interest G.I. is an NHS consultant psychiatrist, and Chairman and Director, London International Practice Ltd. 1 Taggart H, Bailey S. Ending lethal discrimination against people with serious mental illness. Br J Psychiatry 2015; 207: 469–70. 2 Ikkos G. Fairness, liberty and psychiatry. Int Psychiatry 2009; 6: 46–8. 3 St John-Smith P, McQueen D, Michael A, Ikkos G, Denman C, Maier M, et al. The trouble with NHS psychiatry in England. Psychiatr Bull 2009; 33: 219–25. 4 Ikkos G, Sugarman P, Bouras N. Mental health services commissioning and provision: lessons from the UK? Psychiatriki 2015; 26: 181–7. 5 Bark N. Prisoner mental health in the USA. Int Psychiatry 2014; 11: 53–5. 6 Bouras N, Ikkos G. Ideology and psychiatry. Psychiatriki 2013; 24: 17–27. George Ikkos, Consultant Psychiatrist in Liaison Psychiatry, Royal National Orthopaedic Hospital NHS Trust, Stanmore, Middlesex, UK. Email: george.ikkos@ nhs.net doi: 10.1192/bjp.208.4.399 399 Correspondence Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:36, subject to the Cambridge Core terms of use. https://www.cambridge.org/core 
work_74aduhcbyvfddirxeybd24h3ka	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221741191 Params is empty 221741191 exception Params is empty 2021/04/06-03:20:40 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221741191 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:40 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_74jcjm5y5ze47h6b6fbwd7jlmu	----	\\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 1 16-OCT-07 12:55 ENCOURAGE RESTORATIVE JUSTICE JOHN BRAITHWAITE Australian National University At the 2000 United Nations (U.N.) Congress on the Prevention of Crime and Treatment of Offenders, many were surprised that a resolution for all nations to encourage restorative justice passed unanimously. Restorative justice comprises the idea that because crime hurts, justice should heal, and especially heal relationships. It is a process in which all stakeholders have an opportunity to discuss the hurts of a crime, how they might be repaired, how recurrence might be prevented, and how other needs of stakeholders can be met. Even the societies with the highest imprisonment rates in the world—the United States, Russia, and South Africa—and most executions—China—have been sites of important innovations in restorative justice. Although most societies have many small programs (perhaps even thousands now in the United States; Bazemore and Schiff (2005) were able to list 773 programs for juveniles alone), and tens of thousands in China (Wong, 1999), mostly the support is rhetorical, not extending to the mainstreaming of restorative justice evident in New Zealand, Norway, and much of the German-speaking world. A surprisingly universal experience is that restorative justice has not proved politically unpopular. As Frank Cullen points out with rehabilitation (2007, this issue), politicians can be punitive in many respects but still support restorative justice because it makes sense to citizens, and because 80% to 99% of people report good experiences with it, whether they are victims, offenders, supporters, or attending police officers (Braithwaite, 2002; Poulson, 2003). Politicians are unafraid to vote for it at the U.N. and at home because when demands for law and order run amok, they can always say they do not mean for restorative justice to be used in “that” kind of case. Since leaders of all religions have tended to be supportive of restorative justice, seeing it as creating spaces where spiritual experience flourishes, the conservative side of politics at least learns to live with restorative justice. RESTORE A BIT OF DEMOCRACY One reason restorative justice is popular is that it hands a little piece of power back to the ordinary people. We have become such mass democra- cies that face-to-face meetings on important questions of governance only include the elite. Not only are New England town meetings a democratic form that is hard to translate to a mass society, but also most citizens do not want to participate in community meetings. Most citizens do want to VOLUME 6 NUMBER 4 2007 PP 689–696 R \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 2 16-OCT-07 12:55 690 BRAITHWAITE attend restorative justice conferences, however, when asked by a victim or offender to come along to support them. There is something humbling and ennobling about being asked to help someone in trouble; people tend to be honored to be chosen as a supporter. The personal touch makes it a little opportunity to salvage some democratic participation, and the evi- dence indicates that most people relish being able to participate (Braithwaite, 2002:45–55,130–134). The procedural justice findings, more- over, show this feature of “process control” by ordinary citizens engenders a sense of fairness (Tyler, 1990). The Western social science literature on procedural justice, trust build- ing through democratic engagement, and the contribution of restorative justice to all of this has bigger implications in societies recovering from violent conflict than for the West itself. The empirical experience of peace building has been that although democratic elections, national reconcilia- tion, and forgiveness are fundamental ingredients of sustainable peace, they cannot be rushed. The recent mistakes in places like East Timor have been giving postconflict societies an election quickly, and then getting out. We know now that electoral outcomes that do not share power and leave one faction totally in control will exclude ethnic minorities and are not conducive to sustainable peace. Nor do elections work where warlords bribe village heads to get their entire village to vote for their man. Another thing we have learned is that although the time is taken to get electoral institutions to take root, control over most criminal justice can be taken away from hated central police institutions, with their torture cham- bers and secret dossiers, and returned to villages. There are always surviv- als of traditional restorative justice practices in villages. These practices have their human rights worries, even if they are less than the abuses of the wartime state. Ali Wardak (2004) has shown how traditional male- dominated village justice might be balanced by an internationally funded female-dominated new central Human Rights Commission to educate vil- lage elders about involving women and respecting a new order of human rights. Although warlords blocked Wardak’s ideas in his homeland Afghanistan, other postconflict areas such as Bougainville have observed what locals regard as a meaningful form of democratic participation restored through local control over (restorative) criminal justice (Howley, 2002). Restorative justice then becomes much more than a better way of managing crime; it becomes a way to help village societies become more rights-respecting and to learn to become democratic. RESTORE VICTIMS When victims have an opportunity to actually participate in restorative justice, they benefit much more consistently (compared to controls) than \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 3 16-OCT-07 12:55 CRIMINOLOGY & PUBLIC POLICY 691 do offenders (Sherman and Strang, 2007:62–65). Yet victims who want restorative justice are demoralized when it fails to happen or when the offender refuses to attend the meeting (Strang, 2002). Angel (2005) found in an experiment that restorative justice benefits the victim’s mental health by reducing post-traumatic stress symptoms. Victims emerge from restora- tive justice with reduced fear and anger, increased forgiveness, and feel more satisfied. The victim has a stronger sense that his or her rights are respected and that justice was done compared to controls (Strang, 2002; Braithwaite, 2002:45–53). DELIVER COMMITMENT TO DO WHAT WORKS Criminology is making progress on what works. But justice systems are not good at motivating people to do what works. Police know that the best predictor of being a victim of burglary is having recently been burglarized (Pease, 1998:v). Getting burglary victims to act preventively on this is the hard part. Routinely, people are imprisoned because this seems politically safer than cheaper, more effective interventions. Restorative circles can invite experts to present the evidence to lay stakeholders. This can over- come the propensity to do the safe punitive thing in favor of effective pre- vention or rehabilitation. If the victim and other stakeholders in an assault sign an agreement for anger management and compensation (rather than imprisonment), then it can become politically safe for the system to fill fewer prison cells. A small number of restorative programs that steer high- end minority offenders away from prison has shown that restorative justice can motivate a politics of evidence-based, emotionally intelligent justice (Sherman, 2003) to supplant incarcerative justice (Bonta et al., 1998). A Canadian Ministry of Justice meta-analysis of evaluations of restora- tive justice with credible control groups was encouraging on many fronts (Latimer et al., 2001). Its biggest effect was that the implementation of agreements was 33% higher in restorative justice cases than in controls. We should not be surprised that a court order is less likely to be complied with than an agreement consensually signed by an offender, his mother, his girlfriend, and his victim even if the court order can be legally enforced by another court order! Family and close friends are more powerful regu- lators of behavior than are the police and the courts. So the largest promise of restorative justice is not that it is more directly effective than alternatives such as court or plea bargains. It is that evi- dence-based restorative justice is a superior delivery vehicle for interven- tions that work when compared with traditional criminal justice. As criminology discovers more ways of reducing crime at lower cost in dollars and injustice, restorative justice can deliver the bottom-up commitment to realize implementation. \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 4 16-OCT-07 12:55 692 BRAITHWAITE REDUCE CRIME DIRECTLY That said, the evidence has progressively become stronger that restora- tive justice in itself is directly effective in reducing criminal reoffense. Moreover, restorative justice is a learning tradition. In an update and tightening of the methodological criteria of the Latimer et al. (2001) meta- analysis, Bonta et al (2006) found the recidivism effect was notably higher for second generation post-1997 restorative justice programs. All meta- analyses suggest significant but only modest direct effects in reducing reof- fending. This result is what most restorative justice theorists predicted. Why would you expect the direct effects of interventions of an hour or two to be large? Actually, the most recent review by Sherman and Strang (2007) suggests that we were wrong in that the modest positive result over- all combines some very large positive effects, especially with violence, zero effects, and occasional negative effects when compared with controls. We do not yet understand the drivers of these big variations in success and failure. It is also with violence that we get some surprisingly huge healing effects. In the Canberra RISE experiments, 45% of court case victims wanted to harm their offenders, compared with 9% for victims who went to a restorative justice conference (Sherman and Strang, 2007:63). For property offenses, this difference more than halved. Restorative justice delivers more apologies to victims, and apologies they view as sincere, than do court cases. This difference is also particularly strong with vio- lence cases. Again, because it is with violence that we find the biggest effects, I suspect evidence-based criminology has a major contribution to make to how we can be more effective in peace building after war. INCREASE JUSTICE Criminology was born with too myopic a concern with preventing crime. Some healthy developments have balanced that in recent decades. The rise of victimology has helped us prioritize better recovery for victims. Most nations have moral equivalents to Rodney King, O.J. Simpson, Klan kill- ing and cover-up, the Japanese internment camps of World War II, and the contemporary diaspora of internment camps for Muslims alleged to be ter- rorists. Therefore, all nations’ justice systems should be evaluated in terms of how successful they are in affecting reconciliation within and between communities after cases that question discrimination and respect for rights. The restoration of a sense of justice and reintegration of communi- ties thus stands beside reintegration of victims and offenders as outcomes that should concern criminologists. The social psychology of procedural justice is another recent tradition that adds a set of facets—consistency, \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 5 16-OCT-07 12:55 CRIMINOLOGY & PUBLIC POLICY 693 decision accuracy, correctability, process control, impartiality, and ethical- ity (Lind and Tyler, 1988)—in terms of which the “justice” in “justice sys- tems” is evaluated. The criminological community working on restorative justice, commu- nity justice, and cognate innovations deserves credit for being theoretically serious, nondogmatic, and plural. This effort has led them to be evidence- based and remarkably assiduous in a short space of years in generating a large body of outcome evaluation that explores the entire range of dimen- sions mentioned above. Moreover, so far restorative justice has fared well against these tests (for a now out-of-date survey, see Braithwaite, 2002). The restorative justice research tradition has advanced criminology’s nor- mative conversation on how justice should be defined, and its explanatory conversation on what responses to crime do best in promoting justice for victims, offenders, families of offenders, and other stakeholders. Justice can be conceived in a republican way (Braithwaite and Pettit, 1990). The evidence suggests what is good for republican justice is good for crime control and for democracy (when democracy is conceived in a civic republican way as contestatory and deliberative democracy, as opposed to the rule of opinion polls (Pettit (1997)). This combination of normative and empirical conclusions runs against the intuitions of many who view justice, rights, and democracy as obstacles to crime control. Yet the restorative justice literature is increasingly compelling that we can get less crime through more justice and more democracy. One of the shocking things about law school debate on justice is the assumption that justice ordered is justice delivered. Criminologists from many jurisdictions have always known that one half or one third of all fines that are imposed are never collected (Sherman and Strang, 2007). Here is where the superior implementation certainty of restorative justice increases the consistency of justice as delivered. In addition, the Sherman and Strang (2007:4) review concludes that diverting cases to restorative justice at least doubles (and can quadruple) the proportion of offenses that actually go to justice. Just-deserts advocates of formal prosecution rather than of restorative justice ignore the realities of absconding, loss of files, and no shows of witnesses, which means surprisingly often the prosecution never happens. Attrition can even be a primary reality of prosecutorial justice in experiments (Sherman and Strang, 2007:82). Perhaps this is because some are allowed to abscond because they are innocent. Yet randomization should deliver equal numbers of innocents in control and experimental groups. Another important finding in this respect is Daly et al. (2005): that there is more “charging down” of sexual assaults that are prosecuted than sexual assaults that go to restorative justice conferences. The latter has particularly important implications for justice as victim vin- dication (see also McAlinden, 2007). \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 6 16-OCT-07 12:55 694 BRAITHWAITE NO PANACEA The evidence suggests that all justice interventions, including restorative justice, frequently fail with terrible consequences. If it is right that restora- tive justice is the best delivery vehicle for other interventions that work, then it can be applied to interventions that can repair the harm done by bad restorative justice itself. Moreover, responsive regulatory theory (Braithwaite, 2002) argues that restorative justice should be a presump- tively preferred option at the base of a regulatory pyramid. Such respon- sive justice pyramids cover the weaknesses of one strategy with the strengths of other strategies higher up the pyramid, including more deter- rent and incapacitative options. REFERENCES Angel, Caroline 2005 Crime victims meet their offenders: Testing the impact of restorative justice conferences on victims’ post-traumatic stress symptoms. Doctoral Dissertation. University of Pennsylvania. Bazemore, Gordon and Mara Schiff 2005 Juvenile Justice Reform and Restorative Justice. Portland, Ore.: Willan Publishing. Bonta, James, Jennifer Rooney, and Suzanne Wallace-Capretta 1998 Restorative Justice: An Evaluation of the Restorative Resolutions Project. Ottawa, Canada: Solicitor General Canada. Bonta, James, Rebecca Jesseman, Tanya Rugge, and Robert Cormier 2006 Restorative Justice and Recidivism: Promises Made, Promises Kept? In D. Sullivan and L. Tifft (eds.), Handbook of Restorative Justice: A Global Perspective. London: Routledge. Braithwaite, John 2002 Restorative Justice and Responsive Regulation. New York: Oxford University Press. Braithwaite, John and Philip Pettit 1990 Not Just Deserts: A Republican Theory of Criminal Justice. Oxford, U.K.: Oxford University Press. Cullen, Francis T. 2007 Make rehabilitation corrections’ guiding paradigm. Criminology & Public Policy. This issue. Daly, Kathleen, Brigitte Bouhours, Sarah Curtis-Fawley, Leanne Weber, and Rita Scholl 2005 South Australia Juvenile Justice and Criminal Justice (SAJJ-CJ) Technical Report No. 3: Sexual Assault Archival Study (SASS), An archival Study of Sexual Offence Cases Disposed of in Youth Court and by Conference and Formal Caution, 2d edition, revised and expanded. Brisbane, Queensland, Australia: School of Criminology and Criminal Justice, Griffith University. Available online; http://www.griffith.edu.au/school/ccj/ kdaly.html. \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 7 16-OCT-07 12:55 CRIMINOLOGY & PUBLIC POLICY 695 Howley, Patrick 2002 Breaking Spears and Mending Hearts. Sydney, Australia: Federation Press. Latimer, Jeff, Craig Dowden, and Danielle Muise 2001 The Effectiveness of Restorative Justice Practices: A Meta-Analysis. Ottawa, Canada: Department of Justice, Canada. Lind, E. Allan and Tom R. Tyler 1988 The Social Psychology of Procedural Justice. New York: Plenum Press. McAlinden, Anne-Marie 2007 The Shaming of Sexual Offenders: Risk, Retribution and Reintegration. Portland, Ore.: Hart Publishing. Pease, Ken 1998 Repeat Victimisation: Taking Stock. Police Research Group Crime Detection and Prevention Series Paper 90. London: Home Office. Pettit, Philip 1997 Republicanism. Oxford, U.K.: Clarendon Press. Poulson, Barton 2003 A third voice: A review of empirical research on the psychological outcomes of restorative justice. Utah Law Review 1:167–204. Sherman, Lawrence 2003 Reason for emotion: Reinventing justice with theories, innovations, and research. The American Society of Criminology, 2002 Presidential Address. Criminology 41:1–38. Sherman, Lawrence and Heather Strang 2007 Restorative Justice: The Evidence. London: The Smith Institute. Strang, Heather 2002 Repair or Revenge: Victims and Restorative Justice. Oxford, U.K.: Oxford University Press. Tyler, Tom 1990 Why People Obey the Law. New Haven, Conn.: Yale University Press. Wardak, Ali 2004 Building a post-war justice system in Afghanistan. Crime, Law and Social Change 41:319–341. Wong, Dennis 1999 Delinquency control and juvenile justice in China. Australian and New Zealand Journal of Criminology 32:27–41. John Braithwaite is a professor in the Regulatory Institutions Network, Australian National University. Regulatory, criminological, and peace-building theory are his abid- ing interests. His empirical work connects each of these realms of theory to domains usually occupied by the other two. His contributions to criminology have been on restorative justice, republican normative theory, and reintegrative shaming. These con- tributions have most recently been systematized and revised in E. Ahmed, N. Harris, J. \\server05\productn\C\CPP\6-4\CPP402.txt unknown Seq: 8 16-OCT-07 12:55 696 BRAITHWAITE Braithwaite, and V. Braithwaite, Shame Management Through Reintegration (Cam- bridge, 2001) and J. Braithwaite, Restorative Justice and Responsive Regulation (Oxford, 2002). 
work_75nrkubfpfdknfowe4757xebfi	----	Beyond Transitional Justice? JOURNAL FÜR ENTWICKLUNGSPOLITIK herausgegeben vom Mattersburger Kreis für Entwicklungspolitik an den österreichischen Universitäten vol. XXVII 3–2011 Beyond Transitional Justice Schwerpunktredaktion: Stefan Khittel Inhaltsverzeichnis 4 Stefan Khittel, Jan Pospisil Beyond Transitional Justice? 21 Sandra Rubli Knowing the Truth – What For? The Contested Politics of Transitional Justice in Burundi 43 Susanne Schmeidl The Quest for Transitional Justice in Afghanistan: Exploring the Untapped Potential of Customary Justice 64 Katja Seidel Practising Justice in Argentina: Social Condemnation, Legal Punishment, and the Local Articulations of Genocide 88 Christian Wlaschütz Transitional Justice in Colombia: Does it Contribute to Reconciliation? 109 Book Review 111 Editor of the Special Issue and Authors 114 Impressum  Stefan Khittel, Jan Pospisil Journal für Entwicklungspolitik XXVII 3-2011, S. 4-20 STEFAN KHITTEL, JAN POSPISIL Beyond Transitional Justice? 1. Introduction During the last decade, the term ‘transitional justice’ has become a kind of buzzword. It is extensively used within the UN system as well as within many International NGOs and national governments to describe a wide range of measures of how to deal with a violent past. Interestingly, the concept of transitional justice was coined and elaborated mainly outside the academic context. While closely linked to academic debates, many features of the concept are actually a result of developments in the field and on the political level. Moreover, during the last 20 years the meaning of transi- tional justice has been broadened, something made explicit by the Kofi Annan Report The rule of law and transitional justice in conflict and post-con- flict societies from 2004, where not only a variety of judicial, but also non- judicial mechanisms are proposed (Annan 2004). Hence, one of the first questions that arises is precisely whether there are any normative, institu- tional, psychosocial or social strategies that are not covered by the notion of transitional justice. One major problem of such an inclusive definition of transitional justice – not the least for academics – is that its analytical value is quite limited. This amorphous notion might be seen more as a proxy for an ambiguous and messy compilation of almost any measure, method or other approach of coping with massive violence in a country. If this is so, why bother using the concept at all? The answer, in short, is that such an influential concept employed by powerful organisations becomes itself – irony aside – a battlefield where meanings are constructed, imposed or sanctioned. Thus, looking at what the debates on transitional justice are and, even more importantly, at what lies beyond, becomes not only a formidable academic Beyond Transitional Justice? task but also necessarily an exercise in analysing political power. This latter assertion is exactly the opposite of what some proponents of transitional justice would espouse. With this volume we want to present a small but hopefully mean- ingful contribution to the discussion on transitional justice. Each contri- bution is based on extended periods of fieldwork and/or direct involvement in the processes – and problems – of transitional justice at the local level. Although the charge of a certain eclecticism can be levelled against this volume, nevertheless, the geographical range of the examples is fairly wide. More importantly, the topical coverage is broad. What is most important though, is that there is a common leitmotif linking the articles: namely, the question of what lies beyond the notion of transitional justice and how that can elucidate the processes of transitional justice. 2. The two histories of transitional justice Before discussing the main assumptions, approaches and contradic- tions inherent to transitional justice, it is certainly helpful to look at the history of the concept. The first major question that arises in this regard is probably that of how old the concept might really be. As with many other concepts from the multilateral or bilateral security and development policy context, transitional justice, much like other concepts such as Good Governance or Sustainability, seems to have been always there. Going by age, transitional justice can be considered as a young adult. The first explicit mention of the term dates back some 20 years, to the early to mid 1990s. While this seems to be a quite long time-span, espe- cially given the dynamics of the international policy discourse, it has to be taken into account that transitional justice at that time had a very different meaning compared to nowadays. In fact, it might even be advis- able to speak about two histories of transitional justice; histories that, on the one hand, share some important similarities, but, on the other, deal with different contexts and challenges. The 1990s history of transitional justice is intrinsically linked not only to the fall of the Iron Curtain and the democratisation processes in Eastern Europe, but also to the end of military dictatorships in Latin America and  Stefan Khittel, Jan Pospisil Asia. During the 1980s, the US policy apparatus developed the concept of ‘democracy promotion’ as one of its main approaches in foreign affairs (cf. Robinson 1996: 73ff ) The democratic transitions in Argentine and Chile became the first test cases on the American continent and, via instru- ments like truth commissions, also the first occasions when the demo- cratic transition became linked to the concept of transitional justice (cf. Stotzky 1993: 187ff ). Of course, the Nuremberg Trials, which held accountable leading figures from Nazi Germany after their defeat in World War II, served as the key background against which these new processes unfolded (cf. Teitel 2002: 373). Mainly relevant in that regard was, as Thomas Carothers (2002) has called it, the ‘transition paradigm’: the process of (re-)democ- ratisation in the sense of the denazification (historically) or demilitarisa- tion (in Latin America) of domestic politics through the instruments of the judiciary. It was in the early 1990s that these processes of transitional justice in Latin America were linked to the transition processes in Eastern Europe. Neil Kritz (1995: xxix) for example recalls a conference in Salzburg, Austria, in March 1992, where politicians, journalists and other members of the civil society from Latin America (e.g. Uruguay, Argentine) and Eastern Europe (Hungary, Bulgaria, Lithuania, Czechoslovakia) met to discuss how “to cope with the legacy of that ousted system” (ibid.). It was one of the first occasions when contemporary problems of tran- sitional justice – who is to be seen as a victim, or what to do with the mass of ‘little’ perpetrators – were addressed and systematically discussed. Addi- tionally, questions about the financing and the internationalisation of such processes came into play. It is not by chance that the publication of Kritz’s three volumes on Transitional Justice from 1995, based on research results from a multi-year project on transition processes at the US Institute for Peace, was the first occasion when the term was explicitly mentioned in the scientific discourse in a more prominent way. While the focus on democratic transitions in Latin America and Eastern Europe was rather straightforward, the inclusion of the then-rele- vant case of Ethiopia (after the fall of the Mengistu-regime, cf. Kritz 1995: xxxvi) already offered a case were such a transition was not so clear-cut. At first, in the heyday of the democracy promotion paradigm, cases like Ethi- Beyond Transitional Justice? opia were understood in the context of democratic transition. As Carothers critically points out, by the end of the 1990s nearly 100 countries world- wide were defined within the transition label by US policy actors – what Carothers sees as a sign that “the transition paradigm has outlived its usefulness” (Carothers 2002: 6). In foreign policy terms, particularly regarding the United States, Carothers’ statement might be right or wrong – it proved to be irrelevant in any case, since the promotion of democracy, with the primary test cases of Afghanistan and Iraq and a renewed focus on this since the onset of the Obama presidency, with its focus on ‘fragile democracies’, has remained a highly relevant raison d’être for international (military as well as civilian) interventions from the early 2000s until now. Nevertheless, the de-linking of the concept from the democratic tran- sition context was the start of the second history of transitional justice. In that regard, the genocide in Rwanda acted as the main watershed, since it confronted the concept with unforeseen and in fact unimaginable chal- lenges. It was not primarily the number of victims and the inconceivable cruelties of the event, rather, it was the high number of perpetrators (tens of thousands of people, a significant part of the post-genocide population in the country), together with a completely depleted political and in fact non-existent juridical system that caused the difficulties. While Nuremberg also played an important part as a historical prece- dent in this case (although not mainly in terms of denazification, but more because of its way of dealing with the crime of genocide), it was obvious that the sheer number not only of murders, but especially of immediate perpetrators of acts of concrete violence, called for new approaches in dealing with the potential judicial consequences. At that point, transitional justice comes into play as a process not (or at least not only) for dealing with the judicial consequences of a process of democratisation, but mainly as a way of elaborating and linking the various avenues in the post-conflict transition from war to peace, with its main focus on perpetrators of mass violence in often internal and asymmetric civil wars on the periphery. This shift had two important consequences for the concept: firstly, it was opened to other forms or systems of justice that promised at least the possibility of dealing with the huge number of perpe- trators (and the complex intertwining between perpetration and victim-  Stefan Khittel, Jan Pospisil hood in many situations) in a more pragmatic way. In particular, it was Rwanda and the remarkable success of the so called Gacaca courts which paved the way for the integration of Traditional Justice mechanisms into the realm of transitional justice. Secondly, the question of financing and internationalisation came back on the agenda since from Rwanda onwards the main focal points of Traditional Justice were moved from comparably rich regions of soon- to-be EU-members in Eastern Europe and the more successful economies in South America to poor countries in so-called underdeveloped regions, often devastated by long periods of warfare or violent conflict. Conse- quently, transitional justice became one of the main sectors of interna- tional development cooperation with such countries, alongside related challenges like Disarmament, Reintegration, Security Sector Reform and wider measures in the context of ‘Rule of Law’. Transitional justice’s inclu- sion as part of the donor agenda has had important consequences for its content, approaches and vision, as we will show in the discussion of some of its main contradictions below, and as some of the papers will demon- strate with specific case studies. Today’s most relevant definition of transitional justice was delivered by UN’s Secretary General Kofi Annan in his report The rule of law and transitional justice in conflict and post-conflict societies in 2004. Here, transi- tional justice is explicitly placed in the context of peace and state building interventions in a post-conflict setting. Its aim therefore is to deal with the “legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (Annan 2004: paragraph 8). The measures and methods proposed clearly demonstrate the evolution of the concept beyond the democratic transition context; thus, not only judicial, but also “non-judicial mechanisms” are to be included, “with differing levels of international involvement (or none at all) and individual pros- ecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof ” (ibid.). Annan’s overview indeed highlights all relevant focal points of contem- porary discussions of transitional justice as a concept and the implications it already has, should have or should not have. In particular, there are three critical challenges and contradictions – also shown by the contribu- tions in this volume – that demand further discussion: the relationship of Beyond Transitional Justice? justice, truth seeking and peace building; the, as Annan has called it, level of international involvement, in particular in its relation to traditional justice, but also in regard to the current rise of international criminal law; and the question of reparation, especially in its relation to the question of victimhood, personal as well as structural. 3. What about truth? And justice? And peace? From the 1970s on, but mainly during the 1980s and 1990s, especially in Latin America, the so-called truth commissions were all the rage in transitional democracies. Today, they number more than 40. In hindsight, one safely assumes with the Annan Report that truth commissions could now be considered part of a transitional justice programme. The simple fact stated there is that “[i]t is now generally recognized, for example, that truth commissions can positively complement criminal tribunals, as the examples of Argentina, Peru, Timor-Leste and Sierra Leone suggest” (Annan 2004: paragraph 26). However, this was not always the case, as truth commissions were held to be only second best options as compared to actual prosecutions (cf. Kaiser-Whande/Schell-Faucon 2008: 11). Nevertheless, since Uganda 1974 truth commissions have had a respectable career as tools in reconcilia- tion processes, engaging closely with society. These truth commissions are working more on the level of reparative and restorative justice than on the level of (penal) retribution. Surprisingly, and in spite of being heralded as a self-evident tool for overcoming civil strife or mass atrocities, there has not been much empir- ical evidence of the importance of truth-commissions for furthering the peace processes (cf. Fletcher et al. 2009). Mendeloff elaborates 17 assump- tions inherent in the reasoning of defenders of institutional truth telling and truth seeking (Mendeloff 2004: 364). Coincidentally, it can be argued that these claims sum up most assumptions of liberal peacebuilding. For convenience broken down into three groups (Psychological, Identity, and Institutional and Normative assumptions), they constitute the core claims of any truth-seeking, truth-telling mechanism. After dismantling or dismissing all of them, Mendeloff concludes that there might still be  Stefan Khittel, Jan Pospisil some value for peacebuilding in truth commissions, although such value is likely to be overestimated. It is then hardly astonishing that when examining handbooks dealing with peace or conflict resolution, the term transitional justice hardly shows up. Neither the Handbook of Peace and Conflict Studies (Webel/Galtung 2007) nor the Handbook of Conflict Analysis and Resolution (Sandole et al. 2009) contain a chapter on transitional justice, but what is even more signif- icant, is that not even the indexes of these books give any reference to this concept. The only exception is The SAGE Handbook of Conflict Resolution that features one single article on Peace vs. Justice – and Beyond (Albin 2009), where the concept of transitional justice makes it into a short chapter. 4. Levels of justice – levels of involvement Since its first use – in fact dating back to the Nuremberg trials – tran- sitional justice has been characterised by a sometimes complex interplay of different levels. This is not least due to one of the main rationales behind transitional justice: that it comes, or has to come into, play if or when the national systems of justice are overwhelmed by the scale of violations (cf. Simpson 2008: 74). It was also after Nuremburg, but at the latest during the emergence of the international ad-hoc-tribunals in the 1980s that such powerlessness was not only interpreted in a quantitative way, but also qual- itatively, in the sense that a national justice system might not be willing to prosecute mass scale perpetrators, mainly for political reasons. Following this line of argument, international involvement seems to be a logical step. Such a step could and should assist the national and the local levels in multiple ways, like offering neutral localities where courts and tribunals could be established, by bringing in neutral judges as well as legal expertise, or by offering financial assistance, thus significantly lowering the national costs of any process of transitional justice. Such technical support seems to be rather self-evident and unanimously supported and it would probably be perceived that way if it limited itself to only this technical dimension. However, like most other forms of tech- nical support on an international level, such self-limitation remains a delu- sion. We have to take into account here that most processes of transitional Beyond Transitional Justice? justice in the past two decades have taken place in so-called development countries, thus placing international support for such processes within a donor-recipient-relationship. It particularly because of this relationship that the interplay between the various levels – the local, the national, the inter- national – becomes not only complex, but also complicated. Furthermore, there is a truly global dimension to this internationa- li sa tion of transitional justice, connected to what Ruti G. Teitel (2002: 360) has called a new “humanitarian regime” against the background of a “global rule of law” that “both enables and restrains power in today’s political circumstances in order to manage new conditions of political disorder through the rubric of law” (ibid.: 371). Such management, along with the transformation of the international order since the end of the Cold War, now no longer stops at state borders but instead demonstrates a “heightened enforcement of the expanded norms, which are directed beyond states to persons and peoples” (ibid.: 363). Transitional justice thus becomes an integral part of a ‘global rule of law’ regime that is transforming the much older global regime of Human Rights into a more concrete, interventionist endeavour. Consequently, this new global rule of law regime goes along with the creation of various levels of international institutions that “range from the international courts to nongovernmental organizations” (ibid.: 363). These new groups of actors are designed to constitute and execute a global regime, but – and this is their most important feature regarding transitional justice – they are executing it in most cases not on a global level, but rather negotiate and implement it on the local and national levels. Such transformed implementation of a global regime on a local level by international institutions, partly on their own, partly via the funding and guiding of local and national institutions, carries various risks. Of these, the main problem might be what we call the ‘double simplification’ of internationally implemented processes of transitional justice. The first process of simplification is mainly due to the international/ local divide and the inevitable particular interests of the respective institu- tions. For example, the intervention of the International Criminal Court (ICC) in Uganda – the case against the leadership of the Lord’s Resistance Army (LR A) – became a highly contested issue since it interfered with regional attempts to start a peace process between the Ugandan Govern-  Stefan Khittel, Jan Pospisil ment and the LRA. As a consequence, various concerns and criticisms of the court were raised (cf. Allen 2006: 96ff ). Such local criticism soon became an international problem and a serious concern for the court, since it was its first high profile case and was initially regarded as quite uncontroversial. Therefore, stepping back was not an option, and Chief Prosecutor Moreno- Ocampo got engaged in a highly political debate, not only about the crimes of the LRA, but also about their (according to him, non-existent) political agenda and the prospects of peace talks. Besides the obvious problem that the Chief Prosecutor had now become practically associated with the ICC as a whole in the public debate in Uganda, Moreno-Ocampo was in no way, either through his position or his exper- tise, able and/or qualified to seriously comment on such issues. His political interventions hence proved to be counterproductive, not only for the situa- tion on the ground, but also for the ICC itself –because of the simplifying and, for the informed public, sometimes embarrassing statements but also because of the fact that, against this background, the potential war crimes of the Ugandan government in their fight against the LRA (but also in the course of their interventions in the DRC) became neglected in the juridical debate. Later, the court tried to correct this mistake with extensive outreach programs to the communities in Northern Uganda. Secondly, the specific discourse of criminal law was also designed to present a simple rationale. What is a general feature of criminal law, and of the main arguments of criminal law experts in their calls for the self- restraint of the discipline, takes on a special flavour when combined with the global rule of law regime and the complexity of conflict or post-con- flict situations. “The discourse of global criminal law that informs ICC interventions embodies a specific epistemology that interprets situations of violence through certain categories – namely, the criminal, the victim, and the transcendent judge” (Branch 2007: 190). Obviously, the room for manoeuvre in terms of political negotiation processes turns out to be rather slim when applying such categories to the various actors. This not always proves to be detrimental though, given that groups accused of such crimes might indeed change their behaviour in order to get back to (or at least increase their chances of ) negotiations. Nevertheless, such a strict criminal-victim divide is of course unable to deal comprehensively with processes of mass violence. The re-disco- Beyond Transitional Justice? vering of the local in the context of peace-building in the mid 1990s (cf. Mac Ginty 2008: 140) offered a potentially rewarding road to follow by including traditional methods of justice and reconciliation in processes of transitional justice. The above-mentioned Gacaca courts in Rwanda proved to be remarkably successful in this regard, thus leading to the increased popularity of traditional justice, particularly within the donor community. Nevertheless, the problems of simplification also remain significant in that regard, as Tim Allen (2006: 138ff ) showed in the case of the perceptions of traditional justice methods (the so called Mato Oput in Northern Uganda, cf. also Buckley-Zistel 2010: 113) and the attempts of achieving an interna- tional criminal prosecution of the LRA leadership. The perceptions and also the expectations of the people living in the area were mixed and showed no clear preferences whatsoever. Nevertheless, traditional justice at times was offered as the panacea of transitional justice by sections of the donor and NGO community, a phenomenon that Roger Mac Ginty (2008: 142) has explained by referring to a certain shared interest of the actors involved: “At a superficial level, this ‘popularity’ may reflect a prosaic and mutually beneficial relationship between local and international actors: the former may be motivated by a desire to secure any resources and kudos the latter can offer, while the latter may regard traditional and indigenous actors as a means of achieving donor- driven conditions on local participation and acceptance.” Such aspects show that the various levels of transitional justice are in no way coherent or complementary from the outset. Any international involve- ment leads to severe problems, on the ground as well as on the structural level, while on the other hand the local level in most cases is simply unable to deal with the challenges that accompany any post-conflict-situation. Hence, conclusions are difficult to draw, and the call for self-restraint, in particular in the case of international actors, might be the only option possible. Any process of transitional justice will consist of negotiations between different groups of actors, acting on different levels. A pragmatic approach seems to be the best way to move forward in that regard, notwithstanding the fact that such a “pragmatic approach (often embedded in negotiated processes) is testing the boundaries of how much justice is enough to satisfy the obliga- tions of international law” (Simpson 2008: 79).  Stefan Khittel, Jan Pospisil 5. Reparation and victimhood A central theme running through all forms of transitional justice is the reparation for victims of mass atrocities, war crimes, and human rights violations in general. These reparations are awarded in varying modes, but these modes share one condition: they are given to victims. Victimhood is thus ontologised. It is also elevated onto a moral pedestal. The construction of victimhood, especially beyond the individual case, becomes a political power game, both on the side of national and international actors. Interestingly, there have been changes in perspective during the last decades. Meister (2002) illustrates this by analysing a major change in the definition of a perpetrator and a victim for the period of the Cold War and after. During the Cold War many revolutionary groups resorted to violence as the only promising means of gaining political power and deemed this choice of method as just, as a “weapon of the weak” (ibid.: 92). After the transition to democracy and especially after 9/11 all political violence is called terrorist and terrorism becomes a bad thing in itself and has to be prosecuted. The ‘good terrorist’ has irrevocably become an oxymoron. The victim in the 21st century has to be an innocent victim. While individualising guilt has grown into a major concern for inter- national courts dealing with violent pasts, such as the ICTY and the ICC (cf. Leebaw 2008), victimhood has become a lump category for all who have lost their lives, families, homes. Unsurprisingly, the problems that arise from both lumping together all sorts of victims and at the same time insisting on the innocence of these victims can turn into a mission that is hardly manageable. Not only is the line between the perpetrator and victim in many cases a thin one – forcibly recruited child soldiers are a prime example – but the changing political climate may change the perspec- tive on a violent conflict (see above) and thus alter the meaning of perpe- trator and victim completely. Additionally, the category of gender has only recently received closer attention (cf. Buckley-Zistel/Oettler 2011). Moreover, there can be parallel processes of reparation that possibly overlap in intricate ways. To give just one example that is also included in this collection of articles, though from another point of view, let us consider Colombia. In that country, many laws for the reparation of victims have been passed, the most inclusive just recently (in June 2011, cf. Wlaschütz Beyond Transitional Justice? this issue). However, these reparations deal with the injustices of the last two decades at most. Nevertheless, there has been a parallel effort for the reparation for African Colombians to compensate for their historic enslave- ment (cf. Mosquera 2007). Because of the historical nature of slavery there can be no penal component to this process, but reparative justice meas- ures are heatedly discussed. Unfortunately, for the defenders of reparative measures, the categories get fuzzy. One obvious reason is the historical distance and the fact that no direct survivors of slavery are still alive. The demographic process has lead to complicated identities and the question of who is African Colombian is far from banal. Indeed, it is the locus of academic as well as political disputes (cf. Arocha 2005). The portion of African Colombians varies from around one per cent to up to fifty per cent. Even if these two numbers are extremes, they illustrate well the difficulty of reaching a workable definition of ‘Africanness’ for an eventual reparation. To complicate matters even more, the historical claims of African Colombians also compete with the historical claims of the indigenous populations. The land issue in particular is a thorny one, and this despite the existing regulations that try to do justice to the rural populace of both sides; consequently, two collective identities are pitted against each other in the name of victimhood and the various claims this entails. As Díaz (2010: 300ff ) rightly points out, African Colombians have suffered disproportionately from the violent civil conflict of the last decades. They have been made a priority for sped up reparation by national courts precisely because of their historical subjugation. Claudia Mosquera (2007) takes the same line when she argues that African Colombians have to receive reparations both for being ‘rescued’ from enslavement and having been ‘forcibly displaced’ during the war. The challenging diffi- culties of defining who is African Colombian aside, a central problem is that African Colombians also acted on the side of the perpetrators. This is patently clear in the case of the ongoing armed conflict, but it is also true for the historical example. Sergio Mosquera (1997) shows that, although Africans freed themselves by various means such as buying their freedom from their master or running away, when free some resorted to the use of slave labour themselves.  Stefan Khittel, Jan Pospisil 6. Preview of papers The four articles compiled in this issue deal with the phenomenon of transitional justice from different angles. Though some problems such as the contested political nature of all cases come up more than once, the focus of each text is different, just as each country has a particular history of violent conflict. Another issue surfacing in every text is truth: truth as an indispensable ingredient to reach justice and at the same time its role at the centre of political dispute. The papers also have in common a perspec- tive that extends beyond transitional justice in the normative sense. This new perspective is precisely how this notion – which has degenerated into a buzzword – can reclaim analytical meaning and may once again be a valuable concept and tool for dealing with atrocities. Sandra Rubli’s article, empirically based on her research in Burundi, proceeds to tell the intricate history of conflict in Burundi and the deal- ings with the violent past there. The case of Burundi could make a neat example of transitional justice were it not for the controversies surrounding this process. Truth is not a neutral matter when political parties compete for power, especially if these parties are all involved in one way or another with past violence. The notion is that whoever wins the power over truth wins political power or, conversely, whoever holds political power avoids dealing with certain aspects of truth about the past in order not to endanger their position. Any international intervention can then be perceived as meddling with national or local politics and will be challenged in one way or another. Even an internationally brokered accord like the Arusha Peace and Reconciliation Agreement that was signed by parties of the earlier conflict in Burundi has not been implemented, except for minor measures. This might be due to the fact that not all parties concerned were included in the process and thus were reluctant to accede to the Agreement. On the other hand, all parties see different opportunities in the workings of transitional justice and try to influence the process to their advantage. The conclusion is, that in order to ensure that transitional justice can work reasonably well, one has to understand the concerns, motivations, interests and intentions of all the parties (in the broad sense) involved. Otherwise, such a process is doomed to fail. Beyond Transitional Justice? The contribution written by Susanne Schmeidl sheds light on the case of customary justice in Afghanistan. Despite the fact that Afghanistan features prominently in many academic and political analyses and that the opera- tion of transitional justice there is at the centre of attention of the UN, the rigour of the political situation has dealt harsh blows to many core aspects of transitional justice as laid out by the UN system. Instead of truth for everybody, reparation for the victims and punishment for the wrongdoers, amnesty laws without accompanying mechanisms to reveal the truth have been passed by the national government in order to gain political leverage. Earlier attempts to establish justice and reconciliation also failed miserably because of the meddling of local politicians. It may seem an ironic twist when Schmeidl then advocates locally based customary justice practices as a new approach for transitional justice. She argues that customary justice institutions have shown persistence and acces- sibility and so she, instead, focuses on restorative, not retributive, justice. The latter may also be interpreted as a lack of effective enforcement of legal decisions by customary law institutions, but nonetheless this does not equate to impunity. The perpetrators usually have to ask the victims’ fami- lies for forgiveness and in many cases have to pay ‘blood-money’. However, customary law is not a panacea. There are problems, for instance the fact that the community cohesion must be strong enough in order to resist tensions arising from the processes and judgments. Another problem is the gender bias within traditional institutions. Women tend to be excluded or discrimi- nated against. Finally, the cases may be too many for the traditional system to handle, especially because some of the institutions have already other obligations they must cope with. Schmeidl concludes positively, arguing that such a view, beyond the beaten track of transitional justice practices that have not met with impressive success, might offer new directions of how to overcome a difficult impasse. Katja Seidel describes local practices of justice in Argentina, one of the classic examples of a democracy in transition. Within a few years after the end of the dictatorship, the country had a tribunal and also a Truth Commis- sion that dealt with the horrors of the military dictatorship. A legal frame- work that effectively barred attorneys from prosecuting the perpetrators of human rights violations was set up not much later. Despite the fact that the law made it difficult for the national legal system to act against perpetra-  Stefan Khittel, Jan Pospisil tors, a local practice called ‘escrache’ developed into an instrument of estab- lishing justice. This exercise is not backed by the state but is anchored in local community practices that not only ‘pillory’ the culprit but also bring about a consolidation of the community. Again, truth in this context is broken down to very specific individuals, local contexts and histories. The National Commission has no more authority in this particular form of action. Quite from the opposite side on the spectrum of legal systems comes an initiative that seeks to establish the atrocities committed during the era of the military dictatorship as genocide. From this it could follow that national legal provisions that protect perpetrators from further prosecu- tion could be undermined by International Law. Here again, local interests enter the political arena and a transitional justice process that had appar- ently ended is re-opened and re-negotiated. The contestation in the Argen- tinean case comes thus from both the local and the international level. Finally, Christian Wlaschütz’s article is on Colombia. Despite the fact that both countries are located on the same continent, the cases of Argen- tina and Colombia are quite divergent. Contrary to Argentina, the conflict in Colombia is still ongoing and agreements between parties have only been partial until now. This feature hardly makes it a role model for transitional justice. There has never been a truth commission or a practice comparable to ‘escrache’ but rather court hearings for the penitent wrongdoers so that they can receive a remission or reduction of a prison sentence. The word ‘genocide’ has not been frequently used for the Colombian case and would probably not fit the complex history of armed conflict in that country. The problem that Wlaschütz poses himself is whether transitional justice can contribute anything to a process of reconciliation between victims and perpetrators. His contention is that there is already enough truth around; in other words, it is well known who committed which crimes. However, there is also a lack of political will at the higher echelons of national politics to acknowledge crimes against humanity, mistakes, or even blunders by the official armed forces. The author, in general, detects a certain deficiency in the application of measures against perpetrators. Ironically, the most severe punishments against the political leaders of the paramilitary forces have been imposed on them by the US legal system, albeit for drug crimes barely related to the grave crimes against humanity which are of concern in the Colombian processes. Beyond Transitional Justice? The cases of Burundi and Colombia also show the difficulties of complex, multiparty peace processes after at least partial agreements have been reached. Argentina and Afghanistan are starting to open an expressly local perspective for transitional justice while at the same time being firmly embedded in the international context. Then there is the ethnic dimension of the population in Burundi as well as in Afghanistan. These intersecting themes open another aspect for possible comparisons and debates among scholars of transitional justice, something that cannot be explored here but which seems a promising option. References Albin, Cecilia (2009): Peace vs. Justice – and Beyond. In: Bercovitch, Jacob/ Kremenyuk, Víctor/Zartmann, I. William (eds.): The SAGE Handbook of Conflict Resolution. London: Sage, 580-594. Allen, Tim (2006): Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books. Annan, Kofi (2004): The rule of law and transitional justice in conflict and post- conflict societies. Report of the Secretary-General, S/2004/616. New York: United Nations. Arocha, Jaime (2005): Afro-Colombia en los años post-Durban. In: Palimpsesto 5, 26-41. Branch, Adam (2007): Uganda’s Civil War and the Politics of ICC Intervention. In: Ethics and International Affairs 21 (2), 179-198. Buckley-Zistel, Susanne (2010): Globale Rechtsprechung, lokale Konflikt. Der Inter- nationale Strafgerichtshof als friedensstiftende Maßnahme in Uganda? In: Bonacker, Torsten/Daxner, Michael/Free, Jan H./Zürcher, Christoph (eds.): Interventionskulturen. Zur Soziologie der Interventionsgesellschaften. Wies- baden: VS Verlag, 101-118. Buckley-Zistel, Susanne/Oettler, Anika (2011): Was bedeutet Transitional Justice? In: Buckley-Zistel, Susanne/Kater, Thomas (eds.): Nach Krieg, Gewalt und Repression: Vom schwierigen Umgang mit der Vergangenheit. Baden-Baden: Nomos, 21-37. Carothers, Thomas (2002): The End of the Transition Paradigm. In: Journal of Democracy, 13 (1), 5-21. Díaz Gómez, Catalina (2010): Elementos para un programa administrativo de reparaciones colectivas en Colombia. In: Díaz Gómez, Catalina (ed.): Tareas Pendientes: Propuestas para la formulación de políticas públicas de reparación en Colombia. Bogotá: ICTJ, 269-317.  Stefan Khittel, Jan Pospisil Fletcher, Laurel E./Weinstein, Harvey M./Rowen, James (2009): Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective. In: Human Rights Quarterly 31 (1), 163-220. Kayser-Whande, Undine/Schell-Faucon, Stephanie (2008): Transitional Justice and Civilian Conflict Transformation: Current Research, Future Questions. CCS Working Papers No. 10. Marburg: CCS. Kritz, Neil J. (ed., 1995): Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Vol. I. Washington, DC: USIP. Leebaw, Bronwyn Anne (2008): The Irreconcilable Goals of Transitional Justice. In: Human Rights Quarterly 30 (1), 95-118. Mac Ginty, Roger (2008): Indigenous Peace-Making Versus the Liberal Peace. In: Cooperation and Conflict 43 (2), 139-163. Meister, Robert (2002): Human Rights and the Politics of Victimhood. In: Ethics and International Affairs 16, 91-108. Mendeloff, David (2004): Truth-Seeking, Truth-Telling, and Postconflict Peace- building: Curb the Enthusiasm? In: International Studies Review 6 (3), 355-380. Mosquera Mosquera, Sergio (1997): Afrocitareños esclaizadores y esclavizados. typo- script. Mosquera Rosero-Labbé, Claudia (2007): Reparaciones para negros, afrocolombi- anos y raizales como rescatados de la Trata Negrera Transatlántica y desterrados de la guerra en Colombia. In: Mosquera Rosero-Labbé, Claudia/Barcelos, Luis Claudio (eds.): Afro-reparaciones: Memorias de la Esclavitud y Justicia Repara- tiva para negros, afrocolombianos y raizales. Bogotá: CES, 213-276. Robinson, William I. (1996): Promoting Polyarchy. Globalization, US Intervention, and Hegemony. Cambridge: Cambridge University Press. Sandole, Dennis J.D./Byrne, Sean/Sandole-Staroste, Ingrid/Senehi, Jessica (eds., 2009): Handbook of Conflict Analysis and Resolution. London/New York: Routledge. Simpson, Grame (2008): One Among Many: The ICC as a Tool of Justice During Transition. In: Waddell, Nicholas/Clark, Phil (eds.): Courting Conflict? Justice, Peace and the ICC in Africa. London: Royal African Society, 73-80. Stotzky, Irwin P. (ed., 1993): Transition to Democracy in Latin America: The Role of the Judiciary. Boulder: Westview Press. Teitel, Ruti G. (2002): Humanity’s Law: Rule of Law for the New Global Politics. In: Cornell International Law Journal 35 (2), 355-387. Webel, Charles/Galtung, Johan (eds., 2007): Handbook of Peace and Conflict Studies. London/New York: Routledge. 
work_766fm2tvz5ed3ot224qvessv3i	----	УДК: 347.513 М. В. ЖУШМАН, канд. юрид. наук, Національний університет «Юридична академія України імені Ярослава Мудрого», м. Харків ПРИНЦИПИ ЦИВІЛЬНОГО СУДОЧИНСТВА ТА ПРАВОСУДДЯ Проаналізовано основні принципи цивільного процесуального права (судочинства та правосуддя), їх вплив та значення у здійсненні правосуддя та судочинства. Ключові слова: Цивільний процесуальний кодекс, Господарський кодекс, Конституційний Суд, Цивільний кодекс, Кодекс цивільного судочинства, Суд Європейського Союзу, Європейський Союз. На сучасному етапі розвитку суспільства постала необхідність перегляду та вдосконалення значної кількості існуючих уявлень про правові та наукові категорії. Це тим більш актуально, що розбудова в Україні демократичної, соціальної та правової держави потребує проведення конструктивного аналізу досягнень і прорахунків загальнотеоретичної юридичної науки та її подальшого розвитку на зовсім іншій, більш досконалій методологічній основі. Зрозуміло, що діяльність науковців-правників з удосконалення юридичної науки та запровадження досягнень у цій сфері повинна починатись з аналізу основоположних джерел, керівних ідей усього права, тобто з принципів права України взагалі й окремих його галузей зокрема. З цього загального правила не є винятком і цивільне процесуальне право. Принципи цивільного процесуального права формуються, що цілком зрозуміло, не ізольовано, а під впливом загальних принципів усієї правової системи держави. Проблема принципів цивільного процесуального права й досі носить суперечливий характер. Дискусія навколо даної основоположної правової категорії триває вже декілька десятиліть. Ці та інші проблеми й обумовили тематику статті. Ураховуючи актуальність проблеми, не є дивним, що питання принципів цивільного процесуального права і на сьогодні викликає незмінний інтерес вчених-практиків, які займались чи займаються їх дослідженням. Значний 2 внесок у дослідження принципів права, в тому числі й цивільного процесуального, зробили українські вчені України С. С. Алексєєв, В. С. Андрушко, В. Ф. Воронов, О. Ф. Гранін, В. М. Горшеньов, А. С. Довгерт, Н. Б. Зейдер, І. М. Ільїнська, В. В. Комаров, А. М. Колодій, Т. М. Нешатаєва, П. М. Рабінович, М. Й. Штефан, Н. О. Чечина, а також російські науковці В. Б. Авер’янов, С. Н. Абрамова, Г. Є. Абова, В. С. Букіна, О. В. Гетманцев, М. В. Гурвіч, В. О. Котюк, К. С. Юдельсон та ін. Усі вони досліджували такі важливі питання, як сутність та поняття принципів права, виявлення їх змісту, співвідношення з іншими правовими категоріями, їх класифікація та інші проблеми, що однак не завершилося формуванням однозначних концептуальних поглядів на це правове явище. Тому виникає нагальна потреба у розробці нових концептуальних підходів до таких важливих питань, як основні ознаки, поняття і зокрема принципи цивільного процесуального права судочинства і правосуддя, їх класифікації та формування системи. Автор ставить за мету розглянути підходи та найважливіші точки зору вчених щодо принципів судочинства та правосуддя, цивільного процесуального права, їх класифікації та системи в загальній системі права України, а також на основі їх узагальнення та аналізу викласти власне бачення даної проблеми, співвідношення принципів судочинства та правосуддя. Незважаючи на пильну увагу з боку вчених до таких категорій, як принципи права (принципи міжнародного права, окремих галузей права, в тому числі й цивільного процесуального), в науці існують різні їх трактування. Наприклад, в енциклопедичних виданнях термін «принцип» (латин. – principium) визначається як «те, що лежить в основі певної теорії, вчення, науки, світогляду тощо» [3, с. 452]. Принципи права визначаються як основні, загальні (керівні) ідеї, положення, що є основою права, визначають сутність, зміст, призначення і спрямованість правового регулювання суспільних відносин. Правові принципи є тією основою, що характеризує процес зародження, формування, 3 функціонування та розвитку (вдосконалення) права та є вагомими положеннями, на які право повинно спиратись в усіх його проявах (правотворче, правозастосовне, правоохоронне) [9, с. 252]. У міжнародному праві проблема принципів права і кожної його галузі, в тому числі й цивільної процесуальної, обумовлюється тим, що принципи відбивають основу, її суть, характер і риси. У міжнародному праві загальновизнаною є дія принципу верховенства права, який закраплений у низці міжнародних нормативно-правових актів як загального (Загальна декларація прав людини), так і регіонального рівнів (Статут Ради Європи, європейська Конвенція про захист прав людини, Африканська хартія прав людини та народів). Відповідно до ст. 8 Конституції в Україні також закріплений, визнається і діє принцип верховенства права. Основний Закон України має найвищу юридичну силу. Закони та інші нормативно-правові акти приймаються на основі Конституції України й повинні відповідати їй [8, с. 135]. Норми Конституції України є нормами прямої дії. Звернення до суду для захисту конституційних прав і свобод людини і громадянина безпосередньо на підставі Конституції України гарантується. Стаття 55 Конституції України регламентує, що права і свободи людини і громадянина захищаються судом. Здійснення правосуддя виключно судами є одним із основоположних принципів цивільного судочинства. Принципи є найбільш узагальненою категорією права України й окремих його галузей нарівні з такими, як предмет і метод, правовідносини тощо. Тому інтенсивні дослідження принципів права, в тому числі й цивільного процесуального знаходяться в центрі уваги вчених. Дослідження цієї проблеми ускладнюється і тим, що в процесуальній літературі та судовій практиці питання про поняття і зміст принципів вирішується по-різному. Одні автори під принципами права розуміють загальні керівні положення, на думку інших принципи цивільного процесуального права – керівні основи цивільного процесу [14, с. 30]. 4 Так, С. С. Алексєєв під принципами права має на увазі виражені в праві вихідні нормативно-правової засади, що характеризують його зміст, основи, закріплені в ньому основи суспільного життя [1, с. 98, 99]. О. С. Комаров розглядає принципи права як основні ідеї, організаційні характерні ознаки правотворчості [6, с. 237]. Г. А. Свердлик під правовими принципами розуміє керівні положення, його основні засади, які відбивають об’єктивні закономірності, тенденції та потреби суспільства, що обумовлюють сутність усієї системи, галузі чи інституту права і мають в силу їх правового закріплення загальнообов’язкове значення [11, с. 17]. Аналогічної думки дотримується і Є. А. Суханов [13, с. 24]. Правові принципи, зазначає В. М. Семенов, це такі його якісні особливості, що складають ідейно-політичні основи, виражають його класову спрямованість, конкретний соціальний тип, специфічні властивості права. Саме за принципами право однієї суспільно-економічної формації відрізняється від права іншої формації [12, с. 30]. Значний внесок у дослідження даної проблеми зробила й українська юридична наука. На думку О. А. Пушкіна, принципи права – основоположні ідеї (основи, положення), у відповідності з якими здійснюється регулювання суспільних відносин [11, с. 10]. У спеціальній монографічній праці «Принципи права України» А. М. Колодій робить висновок, що «…принципи права – це такі відправні ідеї існування права, які виражають найважливіші закономірності і підвалини даного типу держави і права, є однопорядковими із сутністю права і становлять його головні риси, відзначаються універсальністю, вищою імперативністю і загальною значимістю, відповідають об’єктивній необхідності побудови і зміцнення певного суспільного ладу» [4, с. 98-99]. В юридичній літературі висловлено й інші точки зору на визначення принципів права. Проте, незважаючи на існування великої кількості різноманітних, інколи навіть протилежних поглядів щодо сутності, поняття системи, структури класифікації характеристики принципів права, більшість правників дотримуються позиції, що принципи права – це керівні положення права, його основні засади, основоположні ідеї, які виражають об’єктивні закономірності, 5 тенденції та потреби суспільства, що визначають сутність всієї системи, галузі чи інституту права, які мають в силу їх правового закріплення загальнообов’язкове значення. На нашу думку, найбільш повне й аргументоване визначення поняття принципів цивільного процесуального права наведено в підручнику «Курс цивільного процесуального права» за редакцією професора В. В. Комарова [8]. Принципи цивільного процесуального права, вказується в ньому, – це виражені в нормах цивільного процесуального права незаперечні за своєю природою вимоги до суду та учасників цивільного процесу, які конкретизують його зміст та визначають порядок здійснення правосуддя в цивільних справах. Свою конкретизацію і спеціалізацію загально-правові принципи знаходять у галузях права, кожна з яких залежно від свого предмета й метода характеризується власним набором принципів юридичного опосередкування даної сфери суспільних відносин. Система права України за внутрішньої єдності водночас залежно від предмета та методу, які, безсумнівно, вносять специфіку і до системи принципів, надаючи їм галузеву спрямованість і окрасу, поділяється на галузі. Слід погодитись з В. М. Семеновим, який зазначає, що галузеві принципи конкретизують відносно галузі права загально-правові принципи [12, с. 5–7]. При цьому необхідно враховувати, що особливістю принципів права є те, що вони не розрізненні, а перебувають у чіткій системі та субординації, відбивають не тільки властивості правової системи в цілому, а й визначають, з урахуванням предмета та методу певної галузі, місце кожного з принципів у житті суспільства. Особливо це виявляється в принципах судочинства та правосуддя. Загально-правові принципи та принципи міжнародного права, що мають загальний характер, більш конкретно втілюються в принципах кожної галузі (див. [9]). Основні принципи права отримують також специфічну модифікацію у галузях права і сферах правоутворення, правореалізації та правоохорони. Отже, враховуючи характер принципів за їх сферою впливу на певну групу (групи) суспільних відносин, вони поділяються на загально-правові, 6 оскільки поширюються на право взагалі та галузеві відносини, врегульовані правом певної його галузі, наприклад, цивільного процесу. Подібної точки зору дотримується також О. В. Шутенко та ін. [17; 12, с. 22; 13, с. 9]. На думку С. С. Алексєєва, принципи галузі права (галузеві) слід розмежовувати й залежно від певних її інститутів, на які вони впливають, галузеві принципи можна поділяти і на принципи правових інститутів [1]. Проте В. А. Кройтор дотримується протилежної думки, згідно з якою група принципів окремих правових інститутів або стадій процесу існувати не може, оскільки порушується єдність системи принципів цивільного процесуального права [7, с. 18]. У свою чергу В. А. Андрушко зазначає: «Принципи цивільного процесуального права поширюють свою дію на всю галузь права, складовими якої саме і є процесуальні інститути та норми» [2, с. 25]. Російський процесуаліст Н. О. Чечина стверджує: «…єдина система принципів процесуального права в цілому виключає можливість існування відокремлених принципів для окремих стадій процесуальної діяльності або окремо взятого інституту. Той чи інший принцип повинен мати визначальне значення і знаходити найбільший прояв в одній із стадій діяльності або в окремих інститутах, але загальне його значення визначається взаємодією з іншими принципами, впливом їх на діяльність суду в цілому» [15, с. 80]. Важливо підкреслити, що до загальноправових принципів права слід віднести, в першу чергу, ті положення-принципи, які прямо сформульовані у вказаних раніше європейських Декларації, Конвенції, Статуті та Конституції України. Застосування цивільного процесуального законодавства має здійснюватися у межах Конституції як фундаментального нормативного акта в правовій системі, а теоретичні моделі та наукові концепції, які виконують інтерпретаційну функцію, повинні мати конституційне обґрунтування. При цьому принципове значення має науковий аналіз конституційних підстав правосуддя і судочинства. Як справедливо вказує В. В. Комаров, конституційні принципи цивільного правосуддя і судочинства – це певні доктринальні положення, які 7 мають інтерпретаційне значення наукових парадигм, і які визначають, з одного боку, сферу конституційно-правового регулювання судової влади і правосуддя, а з іншого є передумовами, конституційними складовими режиму цивільного судочинства [6, с. 193]. У законодавстві та юридичній літературі правосуддя і судочинство нерідко ототожнюються, досить часто вживаються як синоніми, проте це не можна визнати обґрунтованим. Вірно, на нашу думку, на помилковість такого твердження вказує В. В. Комаров: «Судова юрисдикція, особливе повноваження органів судової влади, тому в цивільному судочинстві не всі і не всякі процесуальні дії судді (суду) є діями по здійсненню правосуддя» [5, с. 193]. Наприклад, навряд чи можна віднести до правосуддя дії судді, який запропонував позивачу виправити помилку, допущену ним при сплаті судового збору чи усунути помилки в позовній заяві, які не впливають на вирішення справи по суті, фіксування судового процесу тощо – це, безумовно, відноситься до судочинства. Правосуддя повинно розглядатися як здійснення права і свобод суб’єктів права через низку судових процедур, які притаманні саме судочинству. Функцію здійснення правосуддя держава покладає виключно на суди. Вони є органами судової влади, яка, згідно зі ст. 6 Конституції України, діє незалежно від законодавчої і виконавчої влади. Інші органи держаної влади та посадові особи, не дивлячись на те, що мають право впливу на суб’єктивні права та обов’язки суб’єктів відносин, позбавлені права перебирати на себе функцію і повноваження, які є компетенцією органів правосуддя. Виключно суди виконують примусові повноваження державної влади, які знайшли закріплення в Конституції, ЦПК та в іншому цивільному процесуальному законодавстві. Призначенням судів є також здійснення захисту гарантованих Конституцією кожному прав і свобод (ст. 55). Роль суду в цьому значно підвищено новим положенням про те, що компетенцію суду поширено на всі правовідносини, що виникають у державі. Відповідно до цього основний 8 загальноправовий принцип знайшов своє закріплення в ст. 124 Конституції, яка регламентує: «Правосуддя в Україні здійснюється виключно судами». Водночас зазначається, що «судочинство здійснюється Конституційним судом України та судами загальної юрисдикції». Отже, застосування термінів «правосуддя» і «судочинство» в різному їх значенні в одній і тій же статті дає підстави для висновку, що правосуддя і судочинство є відмінними як щодо термінології їх вживання, так і за своїм змістом та значенням. Діяльність зі здійснення судочинства, окрім судді, виконують й інші працівники суду та учасники цивільного процесу, зокрема секретар судового засідання, судовий розпорядник та ін., наприклад, підготовка судових викликів і повідомлень, перевірка наявності та з’ясування причин відсутності осіб, яких було викликано до суду, забезпечення фіксування судового засідання технічними засобами, оформлення матеріалів та іншої судової документації (статті 48, 49 ЦПК України). Не викликає сумніву, що від якості та своєчасності дій секретаря, розпорядника, експерта та інших учасників судового процесу залежить належне здійснення судового процесу і, врешті-решт, здійснення суддею правосуддя, прийняття ним обґрунтованого і законного рішення. Принципи (основні засади) судочинства викладено в ст. 129 Конституції України, ЦПК, КАСУ та Законі України «Про судоустрій і статус суддів». Сформульована в ч. 1 ст. 129 конституційна норма про те, що судді при здійсненні правосуддя незалежні й підкоряються лише закону, має важливе значення як загальний принцип судочинства і правосуддя. Зміст вказаної норми свідчить про те, що і принципи судочинства, і принципи правосуддя спрямовані на досягнення єдиної цілі і мети – захист прав і свобод людини і громадянина. Виражені в них вимоги до суду та учасників цивільного процесу, концептуалізують їх зміст і основну спрямованість та визначальний порядок здійснення правосуддя в цивільних справах. Принципи судочинства і правосуддя є взаємообумовленими, взаємопов’язаними й характеризуються відсутністю в них протистояння. Наприклад, як для судочинства, так і для здійснення правосуддя 9 необхідне дотримання принципу законності. Без забезпечення рівності всіх учасників судового процесу перед законом і судом, змагальності сторін щодо свободи в наданні ними суду своїх доказів і в доведенні перед судом їх переконливості, рішення чи постанова суду як акт правосуддя не можуть бути законними й обґрунтованими. Це дає підстави дійти висновку, що принципи судочинства та правосуддя є комплексними, взаємообумовлюючими та взаємозалежними. Це такі основоположні ідеї, доктринальні положення, наукові парадигми, які є віссю діяльності суду щодо здійснення судочинства і правосуддя. З цього приводу В. В. Комаров цілком слушно зауважує, що судова юрисдикція – це особливе повноваження органів судової влади, тому в цивільному судочинстві не всі і не всякі процесуальні дії судді (суду) є діями по здійсненню правосуддя. Правосуддя в цивільних справах стосовно цивільного процесу має субстанціальний характер, і в категоріальному аспекті вони співвідносяться як сутність і явище. Отже, судочинство (цивільний процес) є забезпечувальним відносно правосуддя. Без судочинства здійснення правосуддя неможливе. З урахуванням вище сказаного, судочинство – це правовий цивільно-процесуальний механізм правосуддя. Усе це дозволяє дійти висновку, що дослідження принципів цивільного процесуального права є необхідним процесом і потребує постійної уваги. Водночас дана діяльність має бути концептуально, змістовно та термінологічно узгоджена із загальними правовими ідеями, висновками та правовими прогнозами, а також мораллю. Список літератури: 1. Алексеев С. С. Общая теория права / С. С. Алексеев. – М. : Юрид. лит., 1981. – Т. І. – 510 с. 2. Андрушко А. В. Принцип диспозитивності цивільного процесуального права в Україні : монографія / А. В. Андрушко. – Х., 2006. – 180 с. 3. Енциклопедичний словник / за заг ред. д-ра філол. наук, проф. В. В. Дубінського. – Х. : Клуб сімейного дозвілля, 2010. – 606 с. 4. Колодій А. М. Принципи права України : монографія / А. М. Колодій. – К. : Юрінком Інтер, 1998. – 208 с. 5. Комаров В. В. Теоретичні та практичні проблеми реалізації Конституції України / 10 В. В. Комаров // Зб. тез доп. та наук. повід. учасн. Всеукр. наук.-практ. конф. (29-30 червня 2006 р.). – Х., 2006. – С. 191–196. 6. Комаров С. А. Общая теория права / С. А. Комаров. – М. : Юрид. лит., 1999. – 535 с. 7. Кройтор В. А. Система принципів цивільного процесуального права / В. А. Кройтор // Вісник ХНУВС. – Х., 2008. – С. 15–22. 8. Курс цивільного процесу : підручник / за ред. В. В. Комарова. – Х. : Право, 2011. – 1351 с. 9. Мала енциклопедія теорії держави і права / за заг. ред. Ю. Л. Бошицького. – К. : Вид-во Європейського ун-ту, 2010. – 366 с. 10. Пушкін А. А. Гражданское право : ученик / А. А. Пушкін. – К. : Вища шк., 1977. – Т. І. – 456 с. 11. Свердлык Г. А. Принципы советского гражданского права / Г. А. Свердлык. – Красноярск, 1985. – 480 с. 12. Семенов В. М. Понятие и система принципов советского гражданского процессуального права / В. М. Семенов // Сб. учен. тр. – Свердловск, 1964. – Вып. 2. – С. 179–239. 13. Суханов Е. А. Гражданское право / Е. А. Суханов. – М. : БЕК, 1994. – Т. І. – 376 с. 14. Цивільне процесуальне право України : підручник / за ред. В. В. Комарова – Х. : Право, 1999. – 590 с. 15. Чечина Н. А. Принципы советского гражданского процессуального права / Н. А. Чечина // Правоведение. – 1960. – № 3. – С. 78–83. 16. Шутенко О. В. Проблеми диспозитивності в цивільному судочинстві : автореф. дис. … канд. юрид. наук / О. В. Шутенко. – Х., 2003. – 19 с. Жушман М. В. Принципы гражданского судопроизводства и правосудия. Рассмотрены и исследованы основные принципы гражданского процессуального права (судопроизводства и правосудия), их влияние и значение в осуществлении правосудия и судопроизводства. Ключевые слова: ГПК – Гражданско-процессуальный кодекс, ХК – Хозяйственный кодекс, ГК – Гражданский кодекс, КС – Конституционный Суд, КАСУ – Кодекс административного судопроизводства Украины, Суд ЕС – Суд Европейского Союза, ЕС – Европейский Союз. Zhushman M. V. Principles of civil procedure and justice. The basic principles of civil procedural law (proceedings in civil causes and justice), their influence and importance in the administration of justice and judicial proceedings were examined and studied Key words: CCP – Code of Civil Procedure, EC – The Economic Code, CC – the Civil Code, The CC – The Constitutional Court, CALP – he Code of Administrative Legal Procedure of Ukraine, The ECJ – Court of the European Union, the EU – the European Union. 
work_77d7oz7b25cbjalenh4jgitovi	----	Bharati Law Review, Oct. – Dec., 2014 88     RESTORATIVE JUSTICE: THE NEW PARADIGM IN THE PROVINCE OF JUSTICE IN INDIA? Dr. Puranjoy Ghosh∗ The ‘thoughts’ about justice are so divergent and equivocal that any attempt to design the panacea within the rubric of justice would be a perfect disharmony. The scholastic experiments so far being continued to achieve the utilitarianism in the province of justice are being concluded to the adage, ‘every justice brings an injustice’. Hence, the intellectual bickering on diverse perspectives with the changing needs of the society make the evolutionary process to achieve justice dynamic. The present paper delves into the provinces or doctrines or ideas or concepts of ‘restorative justice’ not to figure out the flaws in the same rather to make a journey over the assumptions of restorative justice in criminal justice administration, particularly in India. The attempt of restorative justice, precisely, apart from the perpetrators and victims, is to accommodate within the fold of the legal frameworks to redress the harm or injury caused to the communities and with the view of reforming and reintegrating contributory role from the ends of communities in upholding social justice as well. Telling incidents about restorative justice inspires more liberalization of civil liberties in the framework of administration of justice while variegated growing concern about public-order and safety irritates the comparison for effective administration between such liberalized approach and pragmatic approach. Again, the attempt to establish peaceful relations among the members of the communities, social control, to ensure equality and cultural expectations or even to reduce recidivism have been mobilizing the disproportionate socio- economic or socio-cultural or even socio-political factors, like communal politics, casteism, etc., and perpetuate conflicts among different communities in any multicultural country like India. Part – I Introduction In the long history of the study of administration of criminal justice the question of attainability has typically been a central part of the inquiry. Indeed, the question of whether particular goals are achievable by specified means or by any means is an elementary and                                                              ∗ Assistant Professor, School of Law, KIIT University, Bhubaneswar, Odisha, India. Bharati Law Review, Oct. – Dec., 2014 89     unavoidable question about any concept or idea or theory of justice. Human being, a composite of impulsion and reason reflects upon his conduct and observe disharmonies, correlates means and ends. Acceptance or adaptation of a particular principle of conduct in directing one’s activities may be called as following of ‘norm’: an abstract pattern to set limits for behaviour in the society. The operative norm is one that is not merely entertained in the mind but is considered worthy of following in actual behaviour, thus, one feels that one ought to conform to it. Hence, every society within the fold of its system permits its members some freedom to pursue self- interested goals within the permissible limits. Many transactions, while quite legitimate, involve more or less latent conflicts of interests, and there must be mechanisms for counteracting such elements of conflict with some emphasis on solidarity or on interests that transcend the conflict. Society is an aggregation of individual selves and basic social commitments of the members are to stay away of others’ way. Any members being a free-willing agent of one’s self while engages oneself to trespass on the preserves of other(s) the question of ‘justice’ comes to the fore. And again, cry for ‘justice’ does not arise until the collective expectations of ‘demand-supply’ is severely imbalanced. Inherently some members of the human society are not inclined towards the maintenance of social norms or orders and coercive force of punishment to maintain social norms and institutionalized order is but the effective alternative. The formulation of the doctrine of ‘justice’ and subsuming the total philosophy of life and ideals of socio-political or socio-economic existence under ‘justice’ is a peculiar characteristic and aspect of the purpose of law. The debate about ‘what is justice’ started in Greek thought, is still burning issue without any precise definition. Thought about ‘justice’ invokes diverse elements, like, social, political, economic, logical, psychological, and consequently any method or ideas or concepts emphasize one or some of them by ignoring other or others accomplished with the honest mischief of being insufficient or incomplete in its approach. The composite appearance of ‘justice’ has made it to be beyond any prefix. More than that it may be one’s own ideological construction, or intellectual preference or critical reflection or emotional reaction but its appeal to human beings is so great that no legal theory can ignore it without the risk of being incomplete and inadequate. Though ‘justice’ is not amenable to logical and scientific approach as there is no unanimity about its settled content and meaning, yet it is a sort of ‘demand notice’ which the members of civil society direct against the established legal frameworks, social orders and political institutions and agencies. And again, the homogeneity Bharati Law Review, Oct. – Dec., 2014 90     as well as heterogeneity of the bundle of demands of the members of the society necessitates streamlining of most predominant and efficacious legal framework. In brief, it is theory of expectation, the net result of human desires and demands–the ends or values of law which are assessed by objective determination in the light of the practical working of law. By ‘restorative justice’ meant one comprehensive mechanism within the fold of regular legal framework to accelerate the speedy disposal of the legal issues aiming at to achieve social peace and order as well as least grievances in processual justice. Hence, it is one ancillary mechanism to dispel the social belief of ‘injustice’ to the victim, offender as well as the community. The provinces enfolded within the processes of restorative justice are: i. the ‘want’ of the survivors/victims from the existing system of justice; ii. responsiveness of the prevalent system of justice to the identified needs; iii. possibility of removal of the aberrations caused in the interpersonal relationship between the survivor/victim and offender through such restorative process; iv. experience perceived by the community at large in such reparation process; and v. impact on reformative process of justice as well. In short, providing the scope of restorative justice means introduction another subsidiary procedural mechanism in the legal framework of the country for, in order to make the restorative process of justice functional besides the fold of existing legal framework in India would require a different set of operating agents who are to play dual role like, to act as community service and social counseling also as being the members of ‘reparation body’ of the society to provide ‘justice’. The chief purpose of restorative justice is to restore peace and harmonious co-existence of conflicting interests in the society. In addition to it, it also promotes the concerned community to take effective observatory role in rehabilitation of the offender to the mainstream of the society. In such process what is deemed to have been changing is the pro-functional importance of the community/communities and to an extent the majority and minority role of the divided groups within the fold of that local community or between different communities. Any society is composed of heterogeneous communities and in any community various categories of members like adult-children, men-women, literate-illiterate, rich- poor, powerful-improvised, etc., and again cultural diversity in India also makes the differences in the choices, habits, values, social Bharati Law Review, Oct. – Dec., 2014 91     stigma, cultures, etc, from one local community to other. Hence, to characterize a uniform social design applicable uniformly irrespective of cultural diversity would accentuate the intricacies in devising such reparation process. The efficiency and effectiveness of the traditional and customary systems of administration of justice was based on the cultures, religion, practices, consensus, aspirations, of the diverse communities of the society. In a dispute situation, familiarity with other members of one’s society helps to smoothen the edges for more cooperative and acceptable resolution of the dispute.1 Ultimately close kinship, friendly, good neighbourly relationships would enable to promote peace, unity, harmony and progress of the society and by restorative process these social control techniques are tend to achieve with systemic perfection. Intrusion of difference of opinions would evolve in that, that whatever rules and standard-norms are being set by the state in choosing the operative agents for constituting the local community group to ensure restorative process, an in-depth analysis in a case where victim-offender both lead hand-to-mouth standard of living or whatsoever social parameters as stated above would hardly involve any safe resolution of the social relationships in such reintegration conference of the harms so caused due to one or more of such factors. Again, some other significant aspects, to be taken into account while devising such restorative process are: the presence of the key participants in such negotiation process to restore–because regard to be had about the privacies of the parties to such restorative process leading to determine about the presence of member(s) of the concerned localities or presence of the social activists or say from the ends of the state administration police or judges etc., are also significant. Part – II Indigenous and Pre-British Legal System in India “In a world of responsive law, ……… law’s power does not stem from tradition or its formal pedigree alone, but also from its persuasiveness as good public policy. In a world of responsive law, legal institutions–courts, regulatory agencies, alternative dispute resolution bodies, police departments–are periodically studied and redesigned to improve their ability to fulfill public expectations.”2                                                              1 NANSO OKAFO, INTERDISCIPLINARY RESEARCH SERIES IN ETHNIC, GENDER AND CLASS RELATIONS: RECONSTRUCTING JUSTICE IN A POST COLONY 9-10 (Ashgate Publishing Ltd. 2009). 2 Robert A. Kagan, Introduction to PHILIPPE NONET’S & PHILIP SELZNICK, TOWARD RESPONSIVE LAW: LAW AND SOCIETY IN TRANSITION xxiv–xxv (Transaction Publishers 2001). Bharati Law Review, Oct. – Dec., 2014 92     By restorative justice what is being promoted is the responsive law. Traditions, customs, indigenous principles of laws are sensibly and unpretentiously inculcate the indigenous essence of law and legal system and if any legal framework is made on such responses would undeniably accentuate the laws more efficacious and effective due to its inherent acquired aspirations in the process of law. In any country the utility and relevancy of law is tested and perceived through social internalization and cultural evolution of the populace in the societies. The choices of the communities to follow or continue to follow some habits would interpret the values in such practices of such communities and such components of social lives would form the compatibility and tradition in setting social norms, and adherence to such practices would set the legal tradition of the society to regulate the individual relations within on different facets of livelihood of members of these communities as well. The chequered history of evolution of the present legal system in India would clearly purport that the except in few areas of family laws the traditional components and system of dispute resolution has almost been amputated rather gradually customized with the rules of common law principles by precedents and analogy. Thus in a country of multicultural complex societies like ours the living sources of governing rules of human relationships in the communities, the traditional consensual conciliatory character of dispute resolution have been swept from today’s adversarial character of official rules. The disintegrated political approaches of the rulers, however, encouraged several invaders to invade this country and to introduce their preferred dispute resolution systems for better administration and governance of the relations of their subjects resulting in loss of authoritative uniform social norms to evolve. The colonial economy tempted the colonial administrators to articulate and regulate the characters and practices of indigenous dispute resolution process by passing regulations to that effect.3 Extension of judicial control in the better governance the colonial administration thus, limited legal administration and concept of limited jurisdiction and with the passage of time the traditional legal practices and sources of law became the flexible legal process.4 Mostly the political features of a country influences in shaping the socio-economic, cultural and legal dimensions and developments of the country.5 Thus, local practices in different local communities those having stronghold on its members and desired effect in governing the                                                              3 LAUREN A. BENTON, LAW AND COLONIAL CULTURES (Cambridge University Press 2001). 4 Id. 5 MC LEOD, JOHN, HISTORY OF INDIA (Greenwood Press, Westport, CT, USA 2002). Bharati Law Review, Oct. – Dec., 2014 93     individual relationship within those communities in the country at times boil down the established legal-norms and systems, e.g., different traditional tribunals, say, kangaroo courts or say Khap Panchayats and inspires the debate of popular legality of official rules. For instance, the incident of January 20146 in West Bengal about the decision of rape in Salishi Sabha [say Kangaroo Court] where participation in community framework was self-styled for restorative process but the decision has undermined the public confidence in such restorative process of justice. Again, the incident of April 3, 20147 the decision of such community led victim housewife to commit suicide setting herself ablaze as the victim was prevented from a filing a police complaint about the rape wherein the reason substantiated by such sabha was that the rapist has apologized to victim. Fact that, the survivor’s family has been enjoying sufferance of deep psychological pressures of being ostracized as the decision of such Salishi Sabha has been defied by complaining to the police. On both counts the incidents are of tribal communities to who the kangaroo court is supreme. The points may be argued that they are not educated and don’t understand the normal system of law but the reflection of influential members of such community bodies in deliberative democracy and people’s choice on justice makes the difference about values of justice.                                                              6 A tribal woman, aged around 20 years, was allegedly gang-raped at Subalpur village under Labhpur police station area on January 21 by the accused as punishment for having an affair with a man from another community [commonly known as Labhpur incident]. 7 TIMES OF INDIA, Apr. 3, 2014 (Malda): A mother of three committed suicide on Wednesday after a kangaroo court questioned her character and let off the rapist lightly. The woman could not accept the humiliation. “She did not sleep all night and set herself on fire at dawn,” said her husband. She died in hospital late on Wednesday. Her children were at home on Monday when neighbour, Nabin Mandal, 21, allegedly barged in and raped her. The woman's husband was incensed and attacked Nabin but was held back by villagers who suggested they convene a village court to ‘settle the issue’. A kangaroo court was held that evening. The woman and her tormenter were brought face to face, intensifying her trauma. The sabha ‘decided’ that Nabin would apologize to her by touching her feet and that in ‘future such cases’ the rapist would have to pay Rs 25,000 to the survivor. The woman and her husband were shocked. They refused to accept the verdict. “How can a rapist be absolved of such a crime by touching the victim’s feet? We protested even in the meeting. It has only brought more humiliation to my wife. They used vulgar language and questioned my wife’s character,” said the husband. Social Welfare Minister Sabitri Mitra, who is also the local MLA, was quick to blame the Opposition. “We got to know that CPM and Congress men were present in the kangaroo court and connived to deny justice to the victim,” she said. District CPM Secretary Ambar Mitra rubbished the allegation and said: “When will the government learn not to see political colour and ensure justice for rape victims?” Malda SP said they hope to arrest the main accused soon. Bharati Law Review, Oct. – Dec., 2014 94     The pro-functional approach of these local communities for settling disputes outside the existing legal systems highly influence the members of those communities and fewer cases are brought forth in official justice rendering system. In numerous cases, for example, where fatwas are issued by different boards established under the tutelage of All India Muslim Personal Law Board or similar agencies in different localities of Union of India for the purpose of resolving the disputes alternatively, within the members of the communities in conformity with the religious mandates issues have been raised in a recent Public Interest Litigation (PIL) like, issuing of such fatwas are illegal, illegitimate and unconstitutional; resolving of the disputes in such alternative fashion strives to establish a parallel judicial system etc. Union of India has pleaded on it appearance to such PIL that these kind of boards act like arbitrator, mediator, negotiator, or conciliator in the matter of family disputes or civil disputes and not in criminal matters and categorized these as alternative dispute resolution mechanism for expeditious, amicable and inexpensive settlement of disputes outside the court. Meanwhile All India Muslim Personal Law Board has stated it to be an informal justice delivery system. The Supreme Court of India8 viewed the status of fatwas from the perspective of objective requirements of a valid law and efficacy thereof and declared those fatwas as not legally binding as they are not made by competent authority like legislature. The court further observed that: “They are not part of the corpus juris of the state” but “an opinion, only an expert is expected to give.”9 The oddity in the observation is that the court has opined again that: “However, as the fatwa gets strength from the religion; it causes serious psychological impact on the person intending not to abide by that.”10 Thus, the Supreme Court has felt the pulse of the psychological impact and the ordeal thereof likely to be enjoyed by the parties to such disputes in the event of such fatwas by such types of local boards or agencies in the respective local communities but the Supreme Court has not taken venture to recommend some mandatory guidelines which are to be complied with by such responsible local bodies or agencies for advancing the restorative justice in such alternative dispute resolution mechanism. Predominantly, these types of fatwas are closely linked to the traditional practices evolved in due course of                                                              8 Decision in Writ Petition (Civil) No. 386 of 2005; Vishwa Lochan Madan v. Union of India & Ors., passed on July 7, 2014 in the Bench of Hon’ble Justice Mr. Chandramauli Kr. Prasad and Hon’ble Justice Pinaki Chandra Ghose, available at judis.nic.in/supremecourt/imgs1.aspx?filename=41747. 9 Id. at 12. 10 Id. at 13. Bharati Law Review, Oct. – Dec., 2014 95     times are like, non-cooperation and social ostracize from the communities, etc. In a restorative process of justice system such an alternative body or agency is required to be constituted for the reparation process but how far such bodies or agencies would satisfy the perceived goal in effectuating the restorative justice system is subject to repeated inquiries and evaluations as well. The underlying possessive character of such operating agents in capturing such power-steering in the guise of rendering restorative process within such local community would be to take a control on it and again may adversely affect the noble pursuits of justice and harmonious order in such restorative process. Alternative Dispute Resolution (ADR) system for rendering justice in India has been set up on the bedrock of subsidizing the operational extent of prescribed official rules for downsizing the delay in disposal of disputes. For example, for the realization of debts due of the banks the process of negotiation and mediation what are being encouraged in Lok Adalat is to pay the lesser amount and thus the disputes are being disposed of earmarking ‘realised on full satisfaction’, thus creating the loss of social wealth by those who are abusing the process of law of the land. The progressive move towards liberalism of the human civilization expands the ambit of basic needs and thus placing pressure upon the administrative machineries of the State to address varied unlimited demands for allocating the resources in a consistent manner. Increasing population causes increased-demands within the limited pool of resources. Thus, on the one hand the dilution of social wealth and on the other increasing pressure of demands developing the consistent pressure to find out the balancing legal mechanism and legal framework as well to harmonize and facilitate the balance of conflicting interests or say the competing interests in the society. Similar opportunities of concessions are being enlarged in criminal proceedings of the country as well by introducing Plea Bargaining. The existence of Section 320 of the Code of Criminal Procedure, 1973 (Cr.P.C.) has earmarked the petty offences by furnishing a list of those offences what are compoundable and the introduction of Plea Bargaining in 2005 has created another segment by the strength what concession may be pleaded [or bargained?] before the court to absolve the rigour of the penalty. This mutual pre-trial negotiations or say deal between the victim and offenders through their agents [read Advocates] requires judicial endorsement. Restorative process is an additional procedural edition of legal system by enlarging the opportunities to the members of local community members in whose communities such offence/offences have been committed to Bharati Law Review, Oct. – Dec., 2014 96     effectuate such mutual pre-trial deal. Democratization of norms should be the be-all and end-all in the framework of such community participatory model of administration of justice and certainly to achieve the desired objects of speedy disposal of disputes as well as utilitarian approach in the administration of justice. But in reality it works out differently due to imperfect accountability of the cultural dimensions of such members of the localities or communities. By abusing the process of such legal provisions there is the erosion of social faith in adjudication of criminal proceedings. For example, the terrorists’ activities at Mumbai in 9/11, 2008 evaporated the confidence of the foreigners concerning the ‘Public Peace’ and ‘Law and Order’ in India–the primary tasks of the official machinery to maintain and loss of what affected the tourism industry of the country. Therefore, the loss of public confidence in the official rules of a country affects the country in developing the social wealth as well as the values in the official norms. Restoration process could not provide the restorative touch in case of certain offences like, the ordeal passed by a rape victim [children and women both inclusive], the child-labour, terrorism [both waged by militia and state sponsored], political vendetta, scam those erode the public and social wealth substantially etc., rather to follow the compensatory mechanism in affording the remedial appendages. What is well settled is that the relevancy of psychology on making the differences in socio-cultural dimensions of different communities of the societies has been well established in the context of i) their naïve metaphysical systems at a deep level; ii) their tacit epistemologies; and iii) even the nature of their cognitive processes– the ways by which they know the world.11 Alike other attempts for crystallizing a universal psychology12 Restorative process is one of such attempt, directed to promote the social relationship and people’s choices that are in consonance and consistence of the fundamental principles of justice of the country. Problems underlies in the growing understanding of diverse opinions and values in shaping and giving effect to such fundamental principles in a country inhabited by multicultural diverse communities, say for example, the futility in                                                              11 R.E. Nisbett, K. Peng, I. Choi, & A. Noenzayan, Culture and Systems of Thought: Holistic Versus Analytic Cognition, 108 (2) PSYCHOLOGICAL REVIEW 291–310 (2001). 12 INDIGENOUS PSYCHOLOGIES: RESEARCH AND EXPERIENCE IN CULTURAL CONTEXT (U. Kim & J.W. Berry eds., Sage Publication, New Delhi 1993); U. Kim & Y.S. Park, Integrated Analysis of Indigenous Psychologies: Comments and Extensions of Ideas Presented by Shams, Jackson, Hewang & Kashima, ASIAN JOURNAL OF SOCIAL PSYCHOLOGY 8, 75–95 (2005); Psychology in India Revisited–Developments in the Discipline, 3 APPLIED SOCIAL AND ORGANIZATIONAL PSYCHOLOGY (J. Pandey ed., Sage, New Delhi 2004). Bharati Law Review, Oct. – Dec., 2014 97     giving the concrete shape of Uniform Civil Code even after achieving independence after long 66 years. The official rules and norms are not the organic growth of the society, it has not fully evolved out of spontaneous urge of the societies rather emphasis is given to officiate the rules introduced by British and the inhabitants are grown acclimatized with those official norms. Basically, the systemic structural frameworks so far characterized in any community around the globe to develop human-behaviours’ regulatory mechanism have perceived the demands of the members of the community on the grounds of commonalities and greater values. Scrutinizing the values of greater interests through rationalized self- interest of human being in the society the regulatory agencies and its frameworks coordinated the limitations and consequences in case of breach of those. Hedonism in human behavioural patterns in society is no exception but increasing frequency of such behaviours in almost every walk of life stultify the values, both social and moral, and affects the legal system to confine the human behaviours and conducts in more efficient ways. The efficiency of law cannot only be achieved on its mere compliance rather the more it would uphold the values the more it becomes responsive to the society and secures the efficacy in the society. Every member of the society is the stakeholder of the legal system of the society and preservation of such values, be it in law, legal systems or in human behaviours, would enhance the maximum in paying allegiance to such responsive law and legal system of the country. Consultation with local stakeholders to instill confidence in public mindset about the social values of the public services tendered by the Public Bodies United Kingdom has come up with the Public Services (Social Value) Act, 2012. This attempt has enveloped the aspirations of the exponential stakeholders of the society by dint of appreciating people’s perception for efficient performance of the public bodies in the long run in furtherance of administration of justice in democratic state. In our country in the guise of reformation and to curb down the ill-practices several committees like bodies are given a shape to preserve social values of the official rules and norms to make those more responsive to the citizens and ultimately ends in promoting more corruptions and mismanagement of social wealth. The transition shift of justice system, in particular in criminal administration of justice, from pragmatic rigourous legal system, e.g., infliction of injuries to the wrongdoer or to develop the fear-psychosis for achieving deterrence effect to more responsive legal system, i.e., to enquire into the detailed particulars of the social facts and causes, directing or tend to direct the behaviours of the wrongdoers to the pattern of wrongdoing and to comprehend the purpose of ends of law Bharati Law Review, Oct. – Dec., 2014 98     ‘restorative justice’ is one of such dimensions in the chapter of administration of justice. But this is one additional procedural framework introduced and conscious effort of speedy disposal of disputes how far would be successful is significant and important. For example, at one point of time breathable ‘air’ had been considered to be available at a zero price and it was known as to be a free good. With the advancement of civilization good, quality, breathable air is not free and recent trends of the judiciary from ‘Polluters Pay’ principle to the prevention of eco-sensitive environment and ecology–denotes the economic value of ‘free air’.13 Recently, the National Green Tribunal (Principal Bench)14 has observed: “……[R]ight to life includes the right to a decent environment. The right to a clean environment is a guaranteed fundamental right. The courts could even impose exemplary damages against the polluter. Proper and healthy environment enables people to enjoy a quality of life which is the essence of the right guaranteed under Article 21. The right to have congenial environment for human existence is the right to life. The state has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment.” Deprivation of the elementary needs of a human being viz., food, water, health, education, job-opportunities, etc., in a welfare democratic state having welfare economy equates the unequal                                                              13 WILLIAM BOYES & MICHAEL MELVIN, TEXTBOOK OF ECONOMICS 7 (Biztantra, An Imprint of Dreamtech Press 6th ed. 2005). In fact, breathable air is becoming a luxury in many places. Consider the Opus Hotel in Vancouver, British Columbia. It is the first North American hotel to offer hand-held oxygen dispensers in every room. These oxygen canisters are small enough to fit into a purse or briefcase and hold enough air for twelve minutes of breathing time. Breathing oxygen is said to increase energy, improve cognitive performance, and reduce the effects of handovers. Opus charges $9.40 for the use of the canisters. 14 Judgment dated Feb. 6, 2014, (Swatanter Kumar, J.) in Court of its Own Motion v. State of H.P. & Ors., Application No. 237 (THC)/2013, CWPIL No. 15 of 2010, ¶ 15; Court of its Own Motion v. Union of India, JT 2012 Vol. 12 S.C. 503: The right to life is a right to live with dignity, safety and in a clean environment. Again in M/s Sterlite Industries Ltd. v. Tamil Nadu Pollution Control Board, 2013, Vol. I All India NGT Reporter, p. 368 it is held: “Article 21 of the Constitution of India which provides that no person shall be deprived of his right to life or personal liberty, except according to the procedure established by law, is interpreted by the Indian courts to include in this right to life, the right to clean and decent environment. Right to decent environment, as envisaged under Article 21 of the Constitution of India also gives, by necessary implication, the right against environmental degradation. It is in the form of right to protect the environment, as by protecting environment alone can we provide a decent and clean environment to the citizenry. Right to clean environment is a guaranteed fundamental right”. Bharati Law Review, Oct. – Dec., 2014 99     treatment to the common citizenry has been well established. So, the scission between the demands for the basic needs and the supply through the interstices of government agencies encourages the miscarriage of justice and enervate the human resources of the country as well. Fact that human life is composed of innumerable independent variables and dependent variable however, conglomeration of such homogeneous and heterogeneous demands musters towards the common choices in the society looking forward for the fulfillment of those. The interval between social choice and to the choice of the peoples’ representatives, steer the state machineries thus not only squandering the social wealth rather promoting scarcity of the resources and the appreciation of social costs of living thereof day by day. Good governance creates long-term values. Social and geo-political culture as well as the values play vital role in terms of sustainable development of a nation. The perceived consolidated democratic structure in India still hovers around the transition phase resulting in dwindling to collate the settled principles in macro- economic management of the natural resources, public administration and adequacy in institutionalized framework for better governance and its impact on the legal framework is no exception. Weal of the people is the social choice in a ‘welfare state’. Hence, in the event of improper distribution or restraint to equitable access to the elementary conditions of human life to its citizens squarely points out the disharmonious arrangements in distributive approaches of apparatus of the public agencies, committed to promote and cater out ‘justice–social, economic and political’. Distribution of both the benefits as well as burdens to the members for harmonizing the conflicting interests of the society peacefully entreats efficient performance of the legal mechanism of the country. “By ‘equitable’ I do not necessarily mean ethical or moral, but that which a given society considers to be appropriate to the need, status, and contribution of its various members. Appropriateness is shaped in part by principle and in part by precedent. It expresses what is reasonable and customary in a given distributive situation. To deviate from a rule that is founded on both reason and precedent would violate the stakeholders’ legitimate expectations, and this would be inequitable.”15 The close proximate relation between the good governance and economic performance for sustaining growth of the society is well established and becomes the growing understanding. The fast changing sustaining policies of the country have the impetus upon                                                              15 H. PEYTON YOUNG, EQUITY: IN THEORY AND PRACTICE 3 (Princeton University Press 1994). Bharati Law Review, Oct. – Dec., 2014 100     the distribution of the chances of lives of its citizens and such changes for who and what degree of sustainability are befitting to the needs of the mass myriad become the play-grounds of those trustees of the society who are battling to upkeep their status on a regular intervals. The transactions of development confined in the papers and the focus of the same in reality are one perfect illusion to the mass myriad. Hence, the noble approach ‘to encourage the peaceful expression of conflict, to promote tolerance and inclusiveness, build respect for diversity and promote responsible community practices.’16                                                              16 HANDBOOK ON RESTORATIVE JUSTICE PROGRAMMES 11 (Criminal Justice Handbook Series, United Nations, New York 2006, Sales No. E.06.V.15). 
work_7alkqks3ujbefil3aci4h4dpki	----	Climate justice, commons, and degrowth Contents lists available at ScienceDirect Ecological Economics journal homepage: www.elsevier.com/locate/ecolecon Analysis Climate justice, commons, and degrowth Patricia E. (Ellie) Perkins Faculty of Environmental Studies, York University, Toronto, Ontario M3J 1P3, Canada A B S T R A C T Economic inequality reduces the political space for addressing climate change, by producing fear-based populism. Only when the safety, social status, and livelihoods of all members of society are assured will voluntary, democratic decisions be possible to reverse climate change and fairly mitigate its effects. Socio-environmental and climate justice, commoning, and decolonization are pre-conditions for participatory, responsible governance that both signals and assists the development of equitable socio-political systems. Degrowth movements, when they explicitly prioritize equity, can help to focus activism for climate justice and sustainable live- lihoods. This paper overviews the theoretical grounding for these arguments, drawing from the work of ecofeminist and Indigenous writers. Indigenous (and also ecofeminist) praxis is grounded in activists' leadership for commoning and resistance to extraction, the fossil fuel economy, and commodified property rights. These movements are building a politics of decolonization, respect, solidarity, and hope rather than xenophobia and despair. “The world is in the midst of a change in thinking about economic and social policy in general, and environmental policy in particular. Climate change is showing that the world depends upon a common pool resource, the atmosphere. Other common pool resources, such as fresh water and forests, are also important. Simply put, the world is discovering that people depend upon these common pool resources more than they be- lieved… How should people organize themselves when they depend upon a common pool resource? We need to study examples of peoples who have developed complex and productive systems using a common pool resource as the fundamental source of wealth.” – Ronald L. Trosper, Resilience, Reciprocity and Ecological Economics: Northwest Coast Sustainability (2009:4) 1. Introduction Climate change is an equity challenge. That is to say, it is a life-or- death challenge to human wisdom as evidenced in socio-political in- stitution-building.1 While there are large differences among countries (indicating that policies and institutions do matter), growing economic inequality within many countries since the 1980s – the same time period when climate change has become entrenched – has allowed a small elite, 1% of the global population, to become responsible for decisions about 82% of the world's wealth, including resource extraction, globalized production, investment, and energy production and use (Roser and Ortiz-Ospina, 2016; Oxfam, 2018). Meanwhile global income inequality is very high; half of humanity cannot afford basic food, shelter, education and healthcare (World Health Organization and World Bank, 2017; Roser, 2016). Even within most “emerging” and “rich” countries, a large seg- ment of the population feels disempowered and disrespected, to the point where populist leaders are elected, promising to restore dignity to the masses (Norrlof, 2018; Graves and Valpy, 2018a, 2018b). We are told that “over-consumption” is Anthropocene, inevitable, part of greedy human nature which “we” must struggle to get under control; we are told that sacrifices are necessary. Meanwhile factories close, carbon emissions and regressive taxes rise, economic inequality and insecurity deepen, workers riot in the streets, racism and fascism threaten. Economic growth nearly always heightens inequities, since in the absence of countervailing policies and institutions, wealth begets more wealth and political power in a positive-feedback cycle.2 The tendency under capitalism, state socialism, and colonialism for the powerful to keep coming out better off, and for exploitation of less-powerful people and of nature to accelerate, is the prime driver of climate change (Klein, 2014; Douthwaite, 1999; Korten, 2006; Latouche, 2003; Latouche, 2012; Wu, 2018; Whyte, 2018a). There are not enough negative feed- backs on this tendency of centralized colonial economies to keep https://doi.org/10.1016/j.ecolecon.2019.02.005 Received 28 February 2018; Received in revised form 7 February 2019; Accepted 7 February 2019 E-mail address: esperk@yorku.ca. 1 As Ostrom stated in her 2009 Nobel Economics lecture, “A core goal of public policy should be to facilitate the development of institutions that bring out the best in humans.” 2 This doesn't necessarily imply that degrowth on the contrary reduces inequities. Ecological Economics 160 (2019) 183–190 Available online 05 March 2019 0921-8009/ © 2019 Elsevier B.V. All rights reserved. T http://www.sciencedirect.com/science/journal/09218009 https://www.elsevier.com/locate/ecolecon https://doi.org/10.1016/j.ecolecon.2019.02.005 https://doi.org/10.1016/j.ecolecon.2019.02.005 mailto:esperk@yorku.ca https://doi.org/10.1016/j.ecolecon.2019.02.005 http://crossmark.crossref.org/dialog/?doi=10.1016/j.ecolecon.2019.02.005&domain=pdf growing, at the expense of “nature,” Indigenous land sovereignty, and marginalized people, for them to be either socially, politically, or eco- logically sustainable (see Thesis 2 in the Introduction to this issue).3 However, ecological destruction is not required by human nature – quite the contrary. There are many examples of human societies which have lived within ecosystem relationships for thousands of years. Common-pool resources, and other types of commons,4 have sustained human economies throughout human history. Collective governance systems that prevent privatization and thus maintain livelihoods for entire communities are increasingly recognized by climate justice ac- tivists and scholars as key to equitably meeting the challenges of cli- mate change. Indigenous scholars and activists critique private property in the context of settler colonialism, describing social-political-eco- nomic systems with sophisticated forms of property rights that have maintained human societies for thousands of years in a variety of en- vironments (Trosper, 2009; Borrows, 2010). Governance institutions which are central in these systems include those protecting reciprocal ecological relationships that foster collective continuance (Whyte, 2018b), contingent proprietorship and leadership (Trosper, 2009), ceremonial sharing, and social reciprocity demonstrated through po- tlatches and other rituals (Trosper, 2009; Atleo, 2011). While they have survived, all of these collective governance institutions have been threatened and nearly destroyed by colonialism. Ecofeminist theorists describe how the rise of capitalism and colo- nialism led to destruction of previously-existing commons, undermined women's rights, and produced widespread social inequity and margin- alization (Federici, 2014, 2018; Mies, 1986/1999; Mies and Bennholdt- Thomsen, 2001). These global and local histories underlie economic, environmental and climate injustice today. In the context of climate change, through a wide range of movements and initiatives – many led by Indigenous people and/or by women – they are beginning to be acknowledged and redressed. This paper's argument is that equity, decolonization, and activism are central to building political institutions to reduce carbon emissions and material throughput in human economies, so that humans can again flourish within reciprocal relationships with the rest of life. Climate justice is not only important in its own right, for moral/ethical reasons, but is also key to the politics of addressing climate change. The degrowth movement, which provides a catalyst for activism because it highlights the problems of and solutions to material throughput and over-consumption in rich countries, sometimes under- emphasizes equity and the unfair impacts of shrinking GDP on parti- cular people and geographic areas. However, with equity foremost, degrowth helps to redefine activist goals, because as (re)commoning takes place, growth itself is less relevant than provisioning – which happens both within and outside of the measured/recognized market, economy, and governance structures (Dengler and Seebacher, 2018). Degrowth thus helps blur old categories and ideals, and focus on new, more relevant ones in times of climate crisis. The sections of this paper, which take up each of these points, are meant as an overview and entry point into huge literatures on all of the issues mentioned. Following a section on ecofeminism, commons, cli- mate justice, and degrowth, in the next section Indigenous leadership and literatures on climate justice and commons are discussed briefly. The conclusion returns to the political role of equity in addressing cli- mate change, and to the synergies between ecofeminist and Indigenous analyses. 2. Ecofeminism, commons, climate justice, and degrowth The call of ecofeminists5 for recognition of collective, unpaid, taken- for-granted foundational contributions of “nature” and “women's work” to socio-economic processes, and the patriarchal exploitation involved, highlights the importance of redistribution and common, shared pro- visioning in human societies (Mellor, 1997a; Mies, 1986/1999; Salleh, 2009). As Carol Rose pointed out decades ago, commons of many kinds are ‘hidden in plain sight.’ Commons such as oceans and watersheds, the Earth's atmosphere, the internet, and languages, are ubiquitous (Hess, 2008); they remain foundational supports for societies and economies, just like unpaid work and ‘nature;’ and they also act as flywheels, maintaining and undergirding otherwise-unsustainable economic sys- tems. Unpaid work and the vital economic role of ecological systems are all much larger than the economy that non-Indigenous people have learned to ‘see’ (Gibson-Graham, 2006; Williams, 2005; Fournier, 2013, UNDP, 2015). The ‘first enclosure’ of the commons in 16th-century Europe and its colonies was fundamental to both the establishment of capitalism and the deepening of patriarchy (Federici, 2014:68–75). Women, who “suffered most when the land was lost and the village community fell apart” (Ibid. 73), actively fought to protect the commons; “women holding pitchforks and scythes resisted the fencing of the land or the draining of the fens when their livelihood was threatened” (Ibid.). The European enclosures led to social crisis, misogyny and violence against women, reducing their employment options and confining them to the home and unpaid reproductive work. In this transition from feudalism to capitalism, “women suffered a unique process of social degradation that was fundamental to the accumulation of capital and has remained so ever since” (Ibid. 75). Meanwhile, in the colonies, where European conquests imposed the same exploitative systems, women's resistance to enclosures preserved traditional commons-based religions and cultural practices. In Latin America, women “directed or counseled all the great anti-colonial revolts” (Ibid., 232, quoting De Leon, 1985, vol. 1:76). Commons are still more prevalent and more important in assuring people's livelihoods globally than many may realize. “Worldwide the International Land Alliance estimates that there are an estimated 2 billion people whose lives revolve around subsistence commons of forest, fisheries, arable land, water and wild game” (Bollier and Weston, 2014:1). Those dependent on commons are often the most margin- alized. Mutual aid, utopian communities, and grassroots collaborative economic initiatives have allowed Black Americans to persevere in 3 In traditional justice terminology, climate justice involves the principles of distributional and procedural justice (fairness in how material goods are dis- tributed among people, and in political access by all people), as well as inter- generational justice (meaning that current human consumption doesn't endanger the welfare of future generations). Carrying equity principles a bit further re- quires including interspecies justice (human respect for other species' welfare and continued existence/non-extinction) and intersectional justice (measures to counteract multifaceted vulnerability and marginalization). Restorative justice implies reshaping human institutions not only for redress but also so that so- ciety can self-correct, reinvigorate itself, and prevent inequitable outcomes from occurring. Distributional justice involves material equity; all the other types of justice mentioned above go beyond the material to extend equity principles into dynamic realms of governance, time, race, class, gender and more-than-human species (see Thesis 1 and Thesis 3 in the Introduction to this Special Issue). 4 Following Turner and Brownhill (2001), in this paper the word ‘commons’ means organized ways of providing the essentials of life to all. Examples include language, health care, regulated clean air and water, universal education, open environmental spaces and forests, nutritious food, adequate shelter, and equi- table political governance. Charlotte Hess, another commons researcher, uses this definition: “A commons is a resource shared by a group where the resource is vulnerable to enclosure, overuse and social dilemmas. Unlike a public good, it requires management and protection in order to sustain it” (Hess, 2008:37). 5 There are many variants of ecofeminism, but all critique the undervaluation and exploitation of women and nature (Plumwood, 1993; Warren, 2000; Gaard and Gruen, 1993, Gaard, 2011, Merchant, 1980, Mellor, 1997a; Salleh, 1997; Mies and Shiva, 2014). Feminist theory in general emphasizes justice, respect for diversity and pluralism, critiques of power and wealth concentration, and the central importance of biological/ecological processes (Spencer et al., 2018). P.E.E. Perkins Ecological Economics 160 (2019) 183–190 184 “finding alternative economic strategies to promote economic stability and economic independence in the face of fierce competition, racial discrimination, and White supremacist violence and sabotage” while building leadership and community stability (Gordon Nembhard, 2014:27). Institutional economists such as Douglass North “have long con- tended that property rights lie at the core of the economic growth that has dominated the last 300 years of world history” (Evans, 2005:86), which is to say that the ‘first enclosure’ of the commons made possible the exponential growth of agrarian and then industrial capitalist economies. The gendered marginalization and misery noted above was a direct result of the economic growth which depended on commodi- fying and privatizing formerly-communal land. But as long ago as the fourth century BC, “state-defined property was individual, male, and private – a relation which individuals held with the State, not with each other. Collective or communal tenure was, in contrast, described by Plato as ‘natural;’ its relations were controlled by, and internal to, a self- defining community…. By the 20th century… (w)hether ideology was communist, socialist, nationalist, or capitalist, a dominant shared strategy… was that community-based tenure (or customary tenure as usually known) must be extinguished in the interests of progress” (Wily, 2018:2). Traditional common-pool resources and common property have a formal or informal system of property rights, and enforced governance that effectively allows those with shared access to protect the commons from outsiders. Common property allocates certain rights to members of a group: access, extraction, management, exclusion, and/or alienation rights (Hess, 2008:34). “New commons” include a wide range of types of connections between groups of humans and natural resources, goods, property, or cultural assets: “The new commons literature focuses on collective action, voluntary associations, and collaboration. While property rights and the nature of the good may still be important, there is a growing emphasis on questions of governance, participatory pro- cesses, and trust; and there is a groundswell of interest in shared values and moral responsibility” (Hess, 2008:37). Even traditional commons such as communally-held land are surprisingly resilient, widespread, and growing in places – due in some cases to the progress of Indigenous peoples in gaining recognition for their communal land rights (Wily, 2018). Neoclassical economists have begun to investigate the reasons why communal tenure can be more efficient than private property: “When the output produced with the asset is a public good, then communal property rights (joint ownership) may sometimes be op- timal” (Besley and Ghatak, 2010:4552). In the face of climate change, movements in the Global South and North, largely led by women, are resisting ongoing enclosures for ex- traction and fossil fuel industries and, in the process, reclaiming com- mons. “To the extent that the capitalist energy system is seized and redirected towards commoning, actors within it have reduced dan- gerous emissions and elaborated an alternative system premised on sustainable energy…. This ‘actually existing’ movement of commoners is the result of the exploited taking over some of the organizations of capital and using them to (a) undermine profit and at the same time (b) negotiate and construct means for satisfying universal needs” (Brownhill and Turner, 2008:16; see also Akbulut, 2017). For example, La Via Campesina's Declaration at the 2015 International Forum for Agroecology stated, “Collective rights and ac- cess to the commons are a fundamental pillar of agroecology. We share access to territories that are the home to many different peer groups, and we have sophisticated customary systems for regulating access and avoiding conflicts that we want to preserve and to strengthen” (Giacomini, 2016:98). La Via Campesina also notes, “As savers of seed and living libraries of knowledge about local biodiversity and food systems, women are often more closely connected to the commons than men” (Ibid). Necessary steps in the process of re-commoning include “defending and reclaiming of public space, and opposition to further privatization of common resources and spaces; … (localized) production, exchange, and consumption; … decentralization; reciprocity (instead of) me- chanical mass solidarity; … policy from below, as a living process, in- stead of policy from above; … (and) manifold ways of realizing a community and a multiplicity of communities” (Mies and Bennholdt- Thomsen, 2001:1021–1022). In principle, degrowth and commoning movements seem like nat- ural allies. They arise in opposition to crushing centralization and globalization, income and power concentration, and destruction of local communities; they are fundamentally democratic and relationship- based; their stance is critical of “sustainable development,” counter- hegemonic, and anti-capitalist. But in my view, topics such as women, gender, intersectionality, Indigenous peoples, colonialism, and im- plications for the marginalized remain underexplored in degrowth analysis (Deschner and Hurst, 2018). There are exceptions, and a few authors call for venues or discussions or shared political platforms to bring together different perspectives (e.g. Martinez-Alier et al., 2010:1746, Martinez-Alier, 2012; Bonaiuti, 2012; Asara et al., 2015). (Re)commoning opens an ethical, political, and currently relevant means to motivate and cushion degrowth, broaden its appeal, and emphasize its practical/livelihood applications, in recognition of the tremendous potential that degrowth has to negatively affect margin- alized people whose precarious lifeways imply minimal ability to handle shocks and disruption (D'Alisa et al., 2014). What steps might this entail? The degrowth movement has not (yet?) seriously considered or addressed the long-standing feminist and ecofeminist literatures regarding the extent to which the measured/ growth economy depends upon unpaid work, mostly done by women, and unpaid ecological services. Many degrowth authors seem blind to the effects of patriarchy, gender violence, colonialism, and wage dis- crimination in forcing certain members of humanity, and “nature” (c.f. Francis Bacon – see Merchant, 2008), to continue providing other members of humanity the means to support their well-being. Degrowth theorist Takis Fotopoulos points out that degrowth ad- dresses the ecological crisis while essentially ignoring the political, social, economic, and class crises (Fotopoulos, 2007:5). This is a pro- blem, he says: “The crucial issue today is how we may create a new society where institutionalized domination of human being over human being and the consequent idea of dominating nature are ruled out” (2007:8). Fotopoulos shows how both socialist and capitalist growth depend fundamentally on income concentration – both materially and environmentally – since industrialization depends on privatization of the means of production and division of labour; it is simply not possible for the benefits of increased production to be universalized because this would endanger the conditions of income disparity required by profit maximization. “Progress, in the sense of improvements in welfare through economic growth, has a necessarily non-universal character. Therefore, the moment of truth for the present social system will come, when it will be universally acknowledged that the very existence of the present wasteful consumption standards depends on the fact that only a small proportion of the world population, now or in the future, are able to enjoy them” (2007:14–15). He thus provides the reason why de- growth cannot prioritize redistribution OR gender equity without what he calls a “cultural revolution,” the “transformation of existing in- stitutions” – but this must be accomplished without alienating “the lower social groups (including the lower middle class), which would particularly have to pay the price for the adoption of the measures involved” if they are carried out within the market system by inter- nalizing externalities (2007: 18). “Progress,” as Maria Mies noted in 1986, depends not just on global income inequality but on patriarchy, and on disguising women's eco- nomic interests even from themselves. For society to vote democrati- cally for degrowth, these fundamental characteristics of prevailing economic systems would need to be maintained. Fotopoulos hints at the extensive changes which would be necessary to bring this exploitation to light when he says, “To my mind, it is only through a transitional P.E.E. Perkins Ecological Economics 160 (2019) 183–190 185 strategy aiming to create new democratic political and economic in- stitutions and, through paideia, which would aim to make hegemonic the corresponding values, that we could realistically hope to create the conditions for the emergence of an economy and society not based on economic growth: a real ecological democracy, as an integral part of an Inclusive Democracy” (2007:19). The word paideia, meaning “child- rearing and education,” gives away the deep ecofeminist content of his remarks: child-rearing and education, currently taken for granted, not worthy of comment, and done largely for free almost exclusively by women, are the key to transforming society so that people can generally see that growth is not the point; ongoing livelihood and quality of life for all is. What will induce the emergent “new forms of economic and social organization” (Bonaiuti, 2012) to be good from an ecofeminist per- spective – that is, equitable for women and all marginalized ‘others’, and for more-than-human life/“nature”? The answer to this question is the crux of climate-crisis-driven system change. From the standpoint of equity/redistribution and ecological bal- ance, degrowth thus can seem a rather tangential tactic. Because some degrowth theorists focus mainly on reducing humans' energy use and material throughput, the degrowth movement they envision can seem somewhat conflicted and unclear about its equity implications. Degrowth activists generally maintain that they want degrowth with equity, but the movement itself to date largely lacks participation and input from marginalized workers from either the global North or the global South, who might be able to represent and integrate those con- cerns – if indeed this is possible (see Thesis 4 in the Introduction to this issue). Other degrowth proponents define their goals in terms of re- organizing the social metabolism towards socially-determined aims, once growth itself is decentred as a societal indicator of progress (Kallis and March, 2014). Turner et al., 2012 article in a special issue of Capitalism Nature Socialism on degrowth, substitute ‘de-alienation’ in Marxian terms as a better focus than degrowth, since this incorporates both justice AND ecology. Justice, because all workers share the alienation which flows from over-consumption and overwork, and this shared burden provides a basis for political action, and for economic restructuring with equity. Ecology, because commons are an age-old solution evolved by humans to meet the challenges of joint sustenance, risk, and long-term en- vironmental equilibrium. In terms of social justice, given the ever-present reality that eco- nomic contraction (or changes of any kind) tend to impact most gravely on people who are already marginalized, most degrowth theorists specify that attention to justice is crucial in bringing about degrowth, and they try to include voices from the margins in arguing for the de- growth agenda. Part of this strategy includes pointing out that growth too hurts the poor, due to its ecological, climate change, and neoliberal social impacts. Martinez-Alier, a central figure in the degrowth move- ment, argues in his book The Environmentalism of the Poor (2002) that strategies used by poor people worldwide to minimize or buffer the environmental consequences of economic growth, which fall heavily on them and endanger their more sustainable livelihoods, effectively shrink the size of the measured, growth-focused economy. Nonetheless, from an ecofeminist and equity-driven perspective, it seems dangerous to advocate degrowth without very clear and specific corollary measures to negate the tendency of the powerful to come out better-off. Traditional income redistribution mechanisms usually rely at least theoretically on growth, so that the least well-off can gradually be al- located a proportionally larger share of economic returns without others having to receive absolutely less. In practice, growth is usually accompanied by increases in both economic and political inequity, and worsening income distribution (Piketty, 2014; Wilkinson and Pickett, 2009). But what mechanism can address historically-based material inequities, both within and among countries and regions, as well as globally? Without growth as the engine, in reality as well as in theory, what can drive progressive North-South redistribution? Economic lo- calization and decentralization can lead to greater equity in specific cases (Kaufman, 2012; Gibson-Graham, 2006; Rowan, 2019) but the post-colonial/decolonizing global distribution questions remain (Dengler and Seebacher, 2018, 2019; Lang, 2017; Paulsen, 2017). This remains an under-developed area of degrowth theory. Since degrowth involves substituting social benefits which are not derived from material throughput in the economy for economic benefits which are materially-dependent, it is centrally concerned with issues like unpaid work, caring, community as differentiated from individual welfare, and other such matters which feminist economists have studied for decades. Ecofeminists, in particular, have long considered these is- sues (Mellor, 1997b, Mellor, 1992, Kuiper and Perkins, 2005, Shiva, 1988, Mies and Shiva and Mies, 1993). Undervalued economic factors include women's work (and indeed all under- and unpaid work), as well as non-monetized services and material inputs from ‘nature’ and colonial theft which are incorporated into the economic sphere virtually for free. Whenever they are esti- mated – e.g. Costanza et al. (1997, 2014), Pietilä (1997); D'Alisa and Cattaneo (2013); UNDP (2015) – these unpaid or ‘free’ services and goods generally dwarf the measured economy in value, yet they are usually not central to policy deliberations and they are often ignored entirely. Women's work and “nature” are crucial and irreplaceable foundations of the measured economy. Maria Mies has shown how capitalism was founded and continues to depend for its existence on the unpaid and underpaid work of women; Mary Mellor and Ariel Salleh and many other theorists have traced the material links between wo- men's work and what economists call “ecosystem services”; these issues of underpayment and inequality based in social injustice and environ- mental depredation, and the predictable ways in which they create economic winners and losers, are grounded in colonialism, patriarchy, under-development, and race and class discrimination both within countries and globally. Just as the ‘jobs vs. environment’ conflicts of 20 years ago are being superseded via ‘green jobs’ and ‘green community development’ movements which recognize the importance of safe green sustainable jobs for all workers, as the climate crisis intensifies ‘degrowth vs. re- distribution’ conflicts will need to be overcome through ‘de-alienation via commoning,’ which lays the groundwork for all members of society to be supported, simply, first and foremost, so that growth becomes irrelevant (Macgregor, 2014). This focus on participatory commons governance decenters both growth and degrowth as goals: Degrowth is mostly a means to an end, which is a just, peaceful quality of life for all. In comparison with current realities, income redistribution is more central than degrowth per se as a step in a good direction. More progressive wealth taxation policy including inheritance taxes and ceilings that favour wealth dis- tribution; crackdowns on tax havens and tax flight; and anti-corruption policies in general are examples of ways to advocate and move towards this goal even within capitalism and current political structures, by building political will for transparency and redistribution. More fun- damental reconstruction of commons in the Western/European domi- nated world, however, will involve deep restructuring of economic systems, livelihoods, rights, and culture (Fuente Carrasco et al., 2019; Whyte, 2017a, 2017b, 2018a). Colonialism, as noted above, violently suppressed and continues to undermine Indigenous socio-economic institutions that exemplify commons governance for securing sustainable livelihoods. Is it possible for ecofeminist, degrowth, and Indigenous activists to become allies in re-commoning? Says Indigenous writer Lindsay Nixon: “Indigenous feminists know that mainstream feminism predominantly represents white settler feminists who, more often than not, choose to ignore the ongoing processes of colonialism from which they actually benefit…. Ecofeminism that appropriates Indigenous environmental P.E.E. Perkins Ecological Economics 160 (2019) 183–190 186 knowledges often fails to fully represent what environmental justice means to Indigenous communities. What is often ignored within these analyses is how neocolonial state violence, compounded by exposure to environmental contaminants, is embodied in very specific ways for Indigenous women and Two-Spirit peoples…. Indigenous peoples have again and again described how solutions to the effects of environmental contamination need to extend far beyond the return of land…. If eco- feminists truly want to engage with Indigenous feminism to legitimize their own movements, they must first engage with their own positionality and privilege as settlers: a positionality on which the continuation of settler-colonialism and the ongoing genocide of Indigenous peoples are prefaced. Furthermore, Indigenous peoples don't need saviour feminists defining what strategies must be used to address environmental con- tamination within Indigenous communities…. What Indigenous feminists want from eco-feminists is simple: Sit down, be quiet, and listen” (Nixon, 2015) This call to listen respectfully is consistent with an empirical, evi- dence-based approach to sustainable livelihoods, as pointed out by Ronald Trosper in the quotation that heads this paper (Trosper, 2009:4). 3. Indigenous commons, climate justice, and degrowth Sustainable ecological practices, communal wealth-sharing, and institutions that preserve long-term quality of life are apparent in many Indigenous governance systems. In Canada and elsewhere, Indigenous leadership, especially by young women, is generating a new impetus for settler-allies to learn about and act on these lifeways and the history and pernicious legacies of colonialism. International legal scholar Shawkat Alam notes, “Collective rights are often affiliated with Indigenous people, as they are defined as rights held by groups…. However, it has been argued that the ‘recognition of collectivities and collective rights is one of the most contested in in- ternational law and politics’. Indeed… this concept of collective rights can be seen to conflict with Western ideas of individual freedom and liberty…. Collective rights have been seen to foster tolerance, and di- versity of culture and knowledge. To this end, many Indigenous peoples view the recognition of their cultural rights as ‘of paramount im- portance’ or ‘as a token of respect towards their identity and commu- nities as well as the only way for their survival and development’” (Alam, 2012:588; Xanthaki, 2007:13). Indigenous legal scholar John Borrows has demonstrated the extent to which First Nations governance traditions have provided a founda- tion for current Canadian law, as part of a living, resilient legal system which ‘works’ in the modern world (Borrows, 2010). Carol Rose, in a very thorough 1986 study, demonstrated that the legal status of com- mons is well-represented, understood and respected in modern Western legal traditions, and in fact that there are so many types and advantages of collective property rights that their benefits remain unambiguous; “the commons was not tragic, but comedic, in the sense of a story with a happy outcome” (Rose, 1986:723). The Iroquois or Haudenosaunee confederacy among the Seneca, Cayuga, Onondaga, Oneida, Mohawk, and Tuscarora peoples was “probably the greatest Indigenous polity north of the Rio Grande in the two centuries before Columbus and definitely the greatest in the two centuries after” (Mann, 2005:330). The Haudenosaunee ‘Great Law of Peace,’ with its 117 codicils setting out ways of achieving political balance, requiring subsidiarity, and setting checks on authority, has been cited as the direct inspiration for the U.S. Constitution (Ibid.:333). However, while they adopted Haudenosaunee protections for liberty and individual rights going far beyond European standards of the time, the U.S. constitutional ‘framers’ failed to incorporate Haudenosaunee traditions of communal property ownership (Ibid.: 333–336). Arguably, they thus missed out on a crucial piece of the overall system's tradi- tional, well-evolved constraints on individual wealth-accumulation and, thus, political power – given the U.S. colonial governance system's lack of negative feedbacks on wealth accumulation, unlike Indigenous governance systems. Indigenous histories document a diversity of ways of organizing society to prioritize resilience, interdependence, and ecological re- lationships (Trosper, 2009; Leroy, 2016). Indigenous traditions of hospitality, sharing, potlatch (or giving away material wealth to de- monstrate moral and community standing), humility, and reverence for the earth and all its creatures and life systems are central to locally- appropriate commons governance processes. First Nations also had nested governance institutions which seem to correspond with what Elinor Ostrom has cited as successful ‘polycentric’ ways to govern large- scale commons (Ostrom, 2009a, 2010, 2014). The active suppression of the potlatch by the Canadian government between 1884 and 1951, on penalty of 2 to 6 month jail terms, shows the extent to which gift-giving, generosity, and moral community re- lationships were inimical to the selfishness and violence of colonial capitalist expansionism. During the potlatch, guests are named and given gifts with the words, “you are recognized.” In The Principles of Tsawalk: An Indigenous Approach to Global Crisis, E. Richard Atleo (Umeek) says, “Over time it was learned that gift giving and recognition promoted balance and harmony between beings, that (this) obeyed what might be called the laws of the positive side of polarity…. When two neighbouring nations shared the same resources, whether cedar, salmon, or human, then it was obvious to the ancient Nuu-chah-nulth that to neglect the act of recognition would open the way to conflict, while to observe the act of recognition, through what I refer to as ‘mutual concern,’ would open the way to balance and harmony.” (Atleo, 2011, pp. 80–81) Indigenous forms of resource management prior to colonization included burning forests to create grasslands for common hunting grounds and areas where food plants and medicinal herbs could be harvested by visitors of many nations (First Story, 2016; Frost, 2019; Turner et al., 2000); Shasta and Hupa management of salmon fisheries through a combination of ritual, ceremony, taboos, respect for elders, and astute observation of the fish over many years (Berkes and Folke, 2002:126–127); Cree oral history to transmit knowledge of long-term cycles in caribou herd fluctuations (Ibid.:140); and Nishinaabeg myths and stories to convey knowledge about interrelated natural phenomena, along with human dependence and humility (Simpson, 2011:18). All these practices depend upon shared cultures, resource use by groups for the benefit of the whole collectivity, and limitations not just on in- dividual consumption and wealth accumulation but on overall human consumption when necessary to preserve the natural resource – in other words, effective and sustainable commons governance. Balanced gender roles and social domains (e.g. Haudenosaunee women were clan heads; they chose the male sachems or chiefs) were and are the norm in many Indigenous societies (Mann, 2005:372–373). Indigenous women, as those responsible for water and life-transmission, lead the most powerful grassroots environmental movements in Canada today (Perkins, 2017; Temper, 2018b). Indigenous chief and activist Arthur Manuel and R.M. Derrickson comment in their book Unsettling Canada: A National Wake-Up Call that women have long held leading roles in Indigenous activism on land, rights and the environment, and the majority of young Indigenous activists today are women (Manuel and Derrickson, 2015:211). Indigenous authors have pointed out that, besides gendered economic and social roles in a patriarchal society, cultural factors also lead Indigenous women to assert their voices and leadership on matters related to water, health, education and liveli- hoods (Gorecki, 2014; Nixon, 2015; Awadalia et al., 2015; Ellis, 2015; Whyte, 2014a). The links between exploitation of land, resources, and women are clear: “…Indigenous women activists and academics have shown how the foundation of contemporary capitalism was contingent on industrial P.E.E. Perkins Ecological Economics 160 (2019) 183–190 187 resource extraction of Indigenous people's land, which was also si- multaneously fully reliant on disempowering any positive ethic towards nature and women. This was achieved by installing European forms of gender relations and dismantling women's power, aided by the appro- priation of Indigenous women's bodies. Residential schools were per- haps the strongest tools in reinscribing balanced gender relations of North American Indigenous matrilocal societies into the unequal ones of patriarchal models imposed by European colonizers and settlers…. (T)he centrality of resisting the colonization of Mother Earth, Terra Madre, and Pachamama is paramount” (Gorecki, 2014).6 As noted by climate justice activists, it is those on the front lines of climate change – both extreme weather events and extraction – who are most aware of its impacts and most knowledgeable about how they should be addressed; this puts women at the forefront of climate justice struggles (Beuchler and Hanson, 2015:228). Indigenous women, facing multiple health and livelihood crises, are leading powerful movements to address this issue at its source (Whyte, 2014a; Whyte, 2017a, 2017b; Green, 2017; Temper, 2018a). Commoning, or reclaiming/rebuilding Indigenous governance sys- tems, requires decolonization. Dene activist Glen Coulthard, in his book Red Skin White Masks, discusses the hope and the promise of commons: “What must be recognized by those inclined to advocate a blanket ‘return to the commons’ as a redistributive counterstrategy to the neoliberal state's new round of enclosures, is that, in liberal settler states such as Canada, the ‘commons’ not only belong to somebody – the First Peoples of this land – they also deeply inform and sustain Indigenous modes of thought and behaviour that harbour profound insights into the main- tenance of relationships within and between human beings and the nat- ural world built on principles of reciprocity, nonexploitation and re- spectful coexistence. By ignoring or downplaying the injustice of colonial dispossession, critical theory and left political strategy not only risks becoming complicit in the very structures and processes of domination that it ought to oppose, but it also risks overlooking what could prove to be invaluable glimpses into the ethical practices and preconditions re- quired for the construction of a more just and sustainable world order” (Coulthard, 2014:12) Justice-oriented economic transformation requires non-Indigenous people to undertake significant and ongoing education about the da- mage and legacies of colonialism in order to begin to build economic institutions that respect the contributions and rights of women and Indigenous peoples, both individually and collectively (Davis, 2010; Tuck, 2017; Fortier, 2017; Davis and Todd, 2016; Whyte, 2016). In- digenous governance systems underscore how foundational justice is for long-lived and ecologically-sustainable commons. However, de- growth theorists and activists have yet to engage much with this, or with Indigenous activists and approaches in North America; the Eur- opean degrowth movement even less so. Global commoning movements grounded in Indigenous lifeways, including Buen Vivir, Pachakuti, and Sumak Kawsay in Latin America, Ecological Swaraj in India, Gross National Happiness in Bhutan, Ubuntu in Africa, and Maori “Economy of Mana” in New Zealand, have many parallels with degrowth, especially their insistence on transformative reorganization of society to recenter harmony among humans and with the more-than-human world, as some degrowth writers point out (Kothari et al., 2014; Garcia, 2012; Gudynas, 2015; Thomson, 2010; Della Valle, 2017; Meynen, 2016; Hoeft, 2018; Martinez-Alier, 2012; Latouche, 2007; Escobar, 2015; Foster, 2011; Verma, 2017). 4. Conclusion: equity, commons, and climate justice Women's movements, and especially Indigenous women's move- ments, revive and underscore the importance of participatory democ- racy and local responsibility for preventing the commodification of water, mineral resources, forests, fisheries, information, collective transportation, and other widely shared systems that are vitally im- portant for most communities' livelihoods and for human flourishing (Bollier and Weston, 2013; Murota and Takeshita, 2013; Shimada, 2010; Dyer-Witheford, 2011; Cochrane, 2014; Hess and Ostrom, 2007; Great Lakes Commons, 2013). The toxic effects of fossil fuel and other extraction, and industrial production more generally – water and air pollution, ecosystem impacts on fish, wildlife, soils, agriculture, etc., trampling on local governance processes, Indigenous land rights, and the health of the most vulnerable – first and most clearly demonstrate the deathly problematic nature of the economic system that produces climate change. The impacts of fossil fuel consumption – greenhouse gas emissions leading to extreme weather events, weather variability, etc. – while global in their im- plications, are longer-incubating but also crucially important in per- petuating climate change. In both production and consumption, roles and impacts are gendered (Cohen, 2017) and environmental injustices abound. Climate justice includes both production and consumption related activism. This paper presents an alternative, deeper argument regarding a way forward in times of worsening inequality and climate chaos: that humans have proven themselves to be capable of building socio-cultural systems which secure a respected place for all members of society and provide for their livelihoods, material needs and emotional welfare through commons, protected by collective social governance institu- tions. Despite centuries of colonialism, imperialism, and capitalist growth, such commons continue to sustain and supplement the liveli- hoods of most people in the world. Led by the marginalized, who are well aware of this, commoning is a mode of social activism which al- lows people to relink with the means to collectively control production themselves, outside of the market and independent of capital (Fournier, 2013). Commoning implies addressing all forms of justice: distributional, procedural, intergenerational, intersectional, interspecies, restorative. It also requires understanding the deep colonial roots of growth itself, in order to actively “unsettle” the collaborative process of redressing wrongs, building respect and humility, and envisioning a resilient, sustainable future. Relationships between settler ecofeminists, Indigenous women activists, and global climate justice movements re- quire settlers to commit to ongoing self-education, respect, and soli- darity in working towards decolonization. Equity-oriented degrowth, climate justice, and commoning are thus potentially mutually reinforcing, and offer a politically viable path to- wards energy transition and a post-capitalist future. The first step along this path is to dismantle colonialism, restore stolen land to its Indigenous caretakers in reconciliation, and (re)build the social respect, relationships and fundamental human values that can link all members of society together, without fear or xenophobia, for shared and re- sponsible commons governance. References Akbulut, B., 2017. Carework as Commons: Toward a Feminist Degrowth Agenda. Resilience (February 2). http://www.resilience.org/stories/2017-02-02/carework- as-commons-towards-a-feminist-degrowth-agenda/. Alam, S., 2012. Collective indigenous rights and the environment. In: Alam, S., Bhuiyan, J.H., Chowdhury, T.M., Techera, E.J. (Eds.), Routledge Handbook of International Environmental Law. Routledge, New York, pp. 585–602. Asara, V., Otero, I., Demaria, F., Corbera, Ed, 2015. Socially sustainable edgrowth as a social-ecological transformation: repoliticizing sustainability. Sustain. Sci. 10 (3), 375–384. Atleo, E.R. (Emeek), 2011. Principles of Tsawalk: An Indigenous Approach to Global Crisis. UBC Press, Vancouver. 6 Canada's ongoing crisis of more than 1200 Missing and Murdered Indigenous Women and Girls since 1980 shows that the deadly connections among capitalism, colonialism, resource extraction, ecological destruction, patriarchy, gendered violence, and racism continue (Kirkup, 2016; Inter- American Commission on Human Rights, 2014; Narine, 2015; Women's Earth Alliance and Native Youth Sexual Health Network, 2016; Green, 2017). P.E.E. Perkins Ecological Economics 160 (2019) 183–190 188 http://www.resilience.org/stories/2017-02-02/carework-as-commons-towards-a-feminist-degrowth-agenda/ http://www.resilience.org/stories/2017-02-02/carework-as-commons-towards-a-feminist-degrowth-agenda/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0010 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0010 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0010 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0015 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0015 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0015 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0020 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0020 Awadalia, C., Coutinho-Sledge, P., Criscitiello, A., Gorecki, J., Sapra, S., 2015. Climate Change and Feminist Environmentalisms: Closing Remarks. FeministWire (May 1). http://www.thefeministwire.com/2015/05/climate-change-and-feminist- environmentalisms-closing-remarks/. Berkes, F., Folke, C., 2002. Back to the future: ecosystem dynamics and local knowledge. In: Gunderson, L.H., Holling, C.S. (Eds.), Panarchy: Understanding Transformations in Human and Natural Systems. Island Press, Washington, DC/Covelo, CA/London, UK, pp. 121–146. Besley, T., Ghatak, M., 2010. Property rights and economic development. In: Rodrik, D., Rosenzweig, M. (Eds.), Handbook of Development Economics. vol. 5. pp. 4535–4595. ch. 68. http://eprints.lse.ac.uk/25428/1/property_rights_and_ economic_development.pdf. Beuchler, S., Hanson, A., 2015. A Political Ecology of Women, Water, and Global Environmental Change. Routledge, New York/London. Bollier, D., Weston, B., 2013. Green Governance: Ecological Survival, Human Rights, and the Law of the Commons. Cambridge University Press, Cambridge. Bollier, D., Weston, B., 2014. The Commons as a Growing Global Movement. CSRwire Talkback (Jan. 31). http://www.csrwire.com/blog/posts/1203-the-commons-as-a- growing-global-movement. Bonaiuti, M., 2012. Degrowth: tools for a complex analysis of the multidimensional crisis. Capital. Nat. Social. 23 (1), 30–50. Borrows, J., 2010. Canada's Indigenous Constitution. University of Toronto Press, Toronto. Brownhill, L., Turner, T., 2008. Commoners against Climate Change. Europe Solidaire sans Frontières. http://www.europe-solidaire.org/spip.php?article9416. Cochrane, Regina, 2014. Climate change, Buen Vivir, and the dialectic of enlightenment: toward a feminist critical philosophy of climate justice. Hypatia 29 (3), 577–598. Cohen, M.G., 2017. Climate Change and Gender in Rich Countries: Work, Public Policy and Action. Routledge, London/New York. Costanza, R., et al., 1997. The value of the world's ecosystem services and natural capital. Nature 387, 253–260. Costanza, R., de Groot, R., Sutton, P., van der Ploeg, S., Anderson, S.J., Kubiszewski, I., Farber, S., Turner, R.K., 2014. Changes in the global value of ecosystem services. Glob. Environ. Chang. 26, 152–158. Coulthard, G.S., 2014. Red Skin White Masks: Rejecting the Colonial Politics of Recognition. University of Minnesota Press, Minneapolis. D'Alisa, G., Cattaneo, C., 2013. Household work and energy consumption: a degrowth perspective. Catalonia's case study. J. Clean. Prod. 38, 71–79. D'Alisa, G., Demaria, F., Kallis, G., 2014. Degrowth: A Vocabulary for a New Era. Routledge, London/New York. Davis, L. (Ed.), 2010. Alliances: Re/Envisioning Indigenous-non-Indigenous Relationships. University of Toronto Press, Toronto. Davis, H., Todd, Z., 2016. On the importance of a date, or decolonizing the Anthropocene. ACME Int. J. Crit. Geogr. 16 (4), 761–780. De Leon, A.G., 1985. Resistencia y Utopia. vols. 1 and 2 Ediciones Era, México, DF. Della Valle, P., 2017. Indigenous degrowth and global capitalism: exploring notions of development in New Zealand literature. In: Ramsey-Kurtz, H., Kennedy, M. (Eds.), Uncommon Wealths in Postcolonial Fiction. Brill, Leiden, pp. 207–225. Dengler, C., Seebacher, L.M., 2018. Growth Pessimism, but Degrowth Optimism. Social Europe (17 December). https://www.socialeurope.eu/growth-pessimism-but- degrowth-optimism. Dengler, C., Seebacher, L.M., 2019. What about the global south? Proposal for a feminist decolonial degrowth approach. Ecol. Econ (in this issue). Deschner, C., Hurst, E., 2018. Decolonisation and Degrowth. Degrowth blog (February 1). https://www.degrowth.info/en/2018/02/decolonisation-and-degrowth/. Douthwaite, R., 1999. The Growth Illusion. Lilliput Press, Dublin. Dyer-Witheford, N., 2011. Nintendo capitalism: enclosures and insurgencies, virtual and terrestrial. Can. J. Dev. Stud. 22 (4), 965–996. Ellis, C., 2015. Solidarity for Feminist Climate Justice. Feminist Wire (April 27). http:// www.thefeministwire.com/2015/04/solidarity-for-feminist-climate-justice/. Escobar, A., 2015. Degrowth, post-development, and transitions: a preliminary con- versation. Sustain. Sci. 10 (3), 451–462. Evans, P., 2005. The new commons vs. the second enclosure movement: comments on an emerging agenda for development research. Stud. Comp. Int. Dev. 40 (2), 85–94. Federici, S., 2014. Caliban and the Witch: Women, the Body, and Primitive Accumulation. Autonomedia, Brooklyn, NY. Federici, S., 2018. Re-Enchanting the World: Feminism and the Politics of the Commons. Kairos/PM Press, Oakland, CA. First Story, 2016. Black Oak Savannah. https://www.highparknature.org/wiki/wiki.php? n=History.IndigenousHistory. Fortier, C., 2017. Unsettling the Commons: Social Movements Within, Against, and Beyond Settler Colonialism. Arbeiter Ring Publications, Winnipeg. Foster, J.B., 2011. Capitalism and degrowth: an impossibility theorem. Mon. Rev. 62, 8. https://monthlyreview.org/2011/01/01/capitalism-and-degrowth-an-impossibility- theorem/. Fotopoulos, T., 2007. Is degrowth compatible with a market economy? Int. J. Incl. Democr. 3 (1), 1–16. Fournier, V., 2013. Commoning: on the social organization of the commons. Management 16, 433–453. https://www.cairn.info/revue-management-2013-4-page-433.htm. Frost, K., 2019. First nations sovereignty, environmental justice, and degrowth in British Columbia, Canada. Ecol. Econ (in this issue). Fuente Carrasco, M.E., Barkin, D., Hernández Mecinas, E., Tapia, R.C., Mendoza Díaz, M.M., 2019. Governance from below and environmental justice: community water management from the perspective of social metabolism. Ecol. Econ (in this issue). Gaard, G., 2011. Ecofeminism revisited: rejecting essentialism and replacing species in a material feminist environmentalism. Fem. Form. 23 (2), 26–53. Gaard, G., Gruen, L., 1993. Ecofeminism: toward global justice and planetary health. Soc. Nat. 2, 1–35. Garcia, E., 2012. Degrowth and buen vivir (living well): a critical comparison. In: Presented at the 3rd International Conference on Degrowth, Venice, September 19–23, . https://www.degrowth.info/wp-content/uploads/2017/01/WS_20_FP_ GARCIA.pdf. Giacomini, T., 2016. Ecofeminism and system change: women on the frontlines of the struggle against fossil capitalism and for the solar commons. Can. Woman Stud. 31 (1–2), 95–101. Gibson-Graham, J.K., 2006. A Post-Capitalist Politics. University of Minnesota Press, Minneapolis, MN. Gordon Nembhard, J., 2014. Collective Courage: A History of African American Cooperative Economic Thought and Practice. Pennsylvania State University Press, University Park, PA. Gorecki, J., 2014. ‘No Climate Justice Without Gender Justice’: Women at the Forefront of the People's Climate March. The Feminist Wire (September 29). http://www. thefeministwire.com/2014/09/climate-justice-without-gender-justice-women- forefront-peoples-climate-march/. Graves, F., Valpy, M., 2018a. Ford's Win Exposes the Angry Blind Spot of Canadian Democracy. The Globe and Mail (June 8). https://www.theglobeandmail.com/ opinion/article-fords-win-exposes-the-angry-blind-spot-of-canadian-democracy/. Graves, Frank, Valpy, Michael, 2018b. Canada is a tinderbox for populism. In: The 2019 Election Could Spark it. Macleans (December 3). https://www.macleans.ca/politics/ canada-is-a-tinderbox-for-populism-the-2019-election-could-spark-it/?utm_ medium=organic&utm_source=Facebook&fbclid= IwAR2eR8wEwAOQbCMcs5f8CQ51RjGSaNcJYZOQPA7D9xCE4t9NepknkI2rdeQ. Great Lakes Commons, 2013. http://greatlakescommonsmap.org/main. Green, Joyce, 2017. Making Space for Indigenous Feminism, 2nd ed. Fernwood Publishing, Halifax/Winnipeg. Gudynas, E., 2015. Buen Vivir. In: D'Alisa, G., Demaria, F., Kallis, G. (Eds.), Degrowth a Vocabulary for a New Era. Routledge, London/New York, pp. 201–204. Hess, C., 2008. Mapping the New Commons. Syracuse University Library, Syracuse, NY. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356835. Hess, C., Ostrom, E., 2007. Understanding Knowledge as Commons: From Theory to Practice. MIT Press, Cambridge, MA. Hoeft, T., 2018. Towards the Pluriverse: How to Connect Degrowth and Ubuntu. In: Lund University Thesis HEKM51 20181, . https://lup.lub.lu.se/student-papers/search/ publication/8945696. Inter-American Commission on Human Rights, 2014. Missing and Murdered Indigenous Women in British Columbia, Canada. Organization of American States, Washington, DC. http://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en. pdf. Kallis, G., March, H., 2014. Imaginaries of hope: the utopianism of degrowth. Ann. Assoc. Am. Geogr. 105 (2), 360–368. Kaufman, C., 2012. Getting Past Capitalism: History, Vision, Hope. Lexington Books, Lanham, MD. Kirkup, K., 2016. Carolyn Bennett Says There Are More than 1,200 Missing or Murdered Indigenous Women. Huffington Post (16 February). Klein, N., 2014. This Changes Everything: Capitalism vs. the Climate. Simon and Schuster, New York. Korten, D., 2006. The Great Turning: From Empire to Earth Community. Berrett-Koehler Publishers, Oakland, CA. Kothari, A., Demaria, F., Acosta, A., 2014. Buen Vivir, degrowth and ecological Swaraj: alternatives to sustainable development and the green economy. Development 57 (3–4), 362–375. Kuiper, E., Perkins, E., 2005. Introduction: exploring feminist ecological economics. Fem. Econ. 11 (3), 107–108. Lang, M., 2017. Degrowth: Unsuited for the Global South? Alternautas blog. http://www. alternautas.net/blog/2017/7/17/degrowth-unsuited-for-the-global-south. Latouche, S., 2003. Would the West Actually Be Happier With Less? The World Downscaled. Le Monde Diplomatique (December 12, 2003). Latouche, S., 2007. Degrowth Economics. Le Monde Diplomatique (July 3, 2007). Latouche, S., 2012. Can the left escape economism? Capital. Nat. Social. 23 (1), 74–78. Leroy, J.P., 2016. Mercado ou Bens Comuns? O papel dos povos indígenas, comunidades tradicionais e setores do campesinato diante da crise ambiental. FASE, Rio de Janeiro. http://fase.org.br/wp-content/uploads/2016/10/FASE_Mercado-ou-Bens-Comuns- JPL-PDF.pdf. Macgregor, S., 2014. Only resist: feminist ecological citizenship and the post-politics of climate change. Hypatia 29 (3), 617–633. Mann, C.C., 2005. 1491: New Revelations of the Americas Before Columbus. Alfred A. Knopf, New York. Manuel, A., Derrickson, R.M., 2015. Unsettling Canada: A National Wake-Up Call. Between the Lines, Toronto. Martinez-Alier, J., 2012. Environmental justice and economic degrowth: an alliance be- tween two movements. Capital. Nat. Social. 23 (1), 51–73. Martinez-Alier, J., Pascual, U., Vivien, F., Zaccai, E., 2010. Sustainable de-growth: mapping the context, criticisms and future prospects of an emergent paradigm. Ecol. Econ. 69, 1741–1747. Mellor, M., 1992. Breaking the Boundaries: Towards a Feminist Green Socialism. Virago Press, London. Mellor, M., 1997a. Feminism and Ecology. NYU Press, New York. Mellor, M., 1997b. Feminism and Ecology. Polity Press, Cambridge, UK. Merchant, C., 1980. The Death of Nature: Women, Ecology and the Scientific Revolution. Merchant, C., 2008. ‘The violence of impediments’: Francis Bacon and the origins of experimentation. Isis 99, 731–760. Meynen, N., 2016. Why the Degrowth Debate Is Growing. Ejolt blog (September 5). P.E.E. Perkins Ecological Economics 160 (2019) 183–190 189 http://www.thefeministwire.com/2015/05/climate-change-and-feminist-environmentalisms-closing-remarks/ http://www.thefeministwire.com/2015/05/climate-change-and-feminist-environmentalisms-closing-remarks/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0030 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0030 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0030 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0030 http://eprints.lse.ac.uk/25428/1/property_rights_and_economic_development.pdf http://eprints.lse.ac.uk/25428/1/property_rights_and_economic_development.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0040 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0040 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0045 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0045 http://www.csrwire.com/blog/posts/1203-the-commons-as-a-growing-global-movement http://www.csrwire.com/blog/posts/1203-the-commons-as-a-growing-global-movement http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0055 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0055 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0060 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0060 http://www.europe-solidaire.org/spip.php?article9416 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0070 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0070 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0075 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0075 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0085 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0085 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0090 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0090 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0090 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0095 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0095 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0100 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0100 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0105 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0105 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0110 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0110 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0115 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0115 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0120 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0125 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0125 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0125 https://www.socialeurope.eu/growth-pessimism-but-degrowth-optimism https://www.socialeurope.eu/growth-pessimism-but-degrowth-optimism http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0130 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0130 https://www.degrowth.info/en/2018/02/decolonisation-and-degrowth/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf8000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0145 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0145 http://www.thefeministwire.com/2015/04/solidarity-for-feminist-climate-justice/ http://www.thefeministwire.com/2015/04/solidarity-for-feminist-climate-justice/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0155 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0155 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0160 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0160 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0165 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0165 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0170 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0170 https://www.highparknature.org/wiki/wiki.php?n=History.IndigenousHistory https://www.highparknature.org/wiki/wiki.php?n=History.IndigenousHistory http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0180 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0180 https://monthlyreview.org/2011/01/01/capitalism-and-degrowth-an-impossibility-theorem/ https://monthlyreview.org/2011/01/01/capitalism-and-degrowth-an-impossibility-theorem/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0190 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0190 https://www.cairn.info/revue-management-2013-4-page-433.htm http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0200 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0200 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0205 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0205 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0205 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0210 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0210 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0215 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0215 https://www.degrowth.info/wp-content/uploads/2017/01/WS_20_FP_GARCIA.pdf https://www.degrowth.info/wp-content/uploads/2017/01/WS_20_FP_GARCIA.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0230 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0230 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0230 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0235 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0235 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0240 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0240 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0240 http://www.thefeministwire.com/2014/09/climate-justice-without-gender-justice-women-forefront-peoples-climate-march/ http://www.thefeministwire.com/2014/09/climate-justice-without-gender-justice-women-forefront-peoples-climate-march/ http://www.thefeministwire.com/2014/09/climate-justice-without-gender-justice-women-forefront-peoples-climate-march/ https://www.theglobeandmail.com/opinion/article-fords-win-exposes-the-angry-blind-spot-of-canadian-democracy/ https://www.theglobeandmail.com/opinion/article-fords-win-exposes-the-angry-blind-spot-of-canadian-democracy/ https://www.macleans.ca/politics/canada-is-a-tinderbox-for-populism-the-2019-election-could-spark-it/?utm_medium=organic&utm_source=Facebook&fbclid=IwAR2eR8wEwAOQbCMcs5f8CQ51RjGSaNcJYZOQPA7D9xCE4t9NepknkI2rdeQ https://www.macleans.ca/politics/canada-is-a-tinderbox-for-populism-the-2019-election-could-spark-it/?utm_medium=organic&utm_source=Facebook&fbclid=IwAR2eR8wEwAOQbCMcs5f8CQ51RjGSaNcJYZOQPA7D9xCE4t9NepknkI2rdeQ https://www.macleans.ca/politics/canada-is-a-tinderbox-for-populism-the-2019-election-could-spark-it/?utm_medium=organic&utm_source=Facebook&fbclid=IwAR2eR8wEwAOQbCMcs5f8CQ51RjGSaNcJYZOQPA7D9xCE4t9NepknkI2rdeQ https://www.macleans.ca/politics/canada-is-a-tinderbox-for-populism-the-2019-election-could-spark-it/?utm_medium=organic&utm_source=Facebook&fbclid=IwAR2eR8wEwAOQbCMcs5f8CQ51RjGSaNcJYZOQPA7D9xCE4t9NepknkI2rdeQ http://greatlakescommonsmap.org/main http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0265 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0265 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0270 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0270 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356835 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0280 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0280 https://lup.lub.lu.se/student-papers/search/publication/8945696 https://lup.lub.lu.se/student-papers/search/publication/8945696 http://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en.pdf http://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0290 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0290 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0295 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0295 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0300 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0300 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf9000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf9000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0305 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0305 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0310 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0310 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0310 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0315 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0315 http://www.alternautas.net/blog/2017/7/17/degrowth-unsuited-for-the-global-south http://www.alternautas.net/blog/2017/7/17/degrowth-unsuited-for-the-global-south http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0325 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0325 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0330 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0335 http://fase.org.br/wp-content/uploads/2016/10/FASE_Mercado-ou-Bens-Comuns-JPL-PDF.pdf http://fase.org.br/wp-content/uploads/2016/10/FASE_Mercado-ou-Bens-Comuns-JPL-PDF.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0350 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0350 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0355 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0355 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0360 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0360 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0370 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0370 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0375 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0375 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0375 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0380 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0380 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0385 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf3000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0390 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0395 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0395 http://www.ejolt.org/2016/09/degrowth-debate-growing/. Mies, M., 1986/1999. Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour. Zed Books, London. Mies, M., Bennholdt-Thomsen, V., 2001. Defending, reclaiming and reinventing the commons. Can. J. Dev. Stud. 22 (4), 998–1023. Mies, M., Shiva, V. (Eds.), 2014. Ecofeminism, 2nd ed. Zed Books, London. Murota, T., Takeshita, K., 2013. Local Commons and Democratic Environmental Governance. United Nations University Press, Tokyo/New York/Paris. Narine, S., 2015. Violence against aboriginal women not an aboriginal-only issue. Windspeaker 23 (1). http://www.ammsa.com/publications/alberta-sweetgrass/ violence-against-aboriginal-women-not-aboriginal-only-issue. Nixon, L., 2015. Ecofeminist Appropriations of Indigenous Feminisms and Environmental Violence. Feminist Wire (April 30). http://www.thefeministwire.com/2015/04/eco- feminist-appropriations-of-indigenous-feminisms-and-environmental-violence/. Norrlof, Carla, 2018. Donald Trump Wants to Rewrite the Liberal Playbook that Has Kept America on Top for Decades. London School of Economics US Centre blog (February 21). Ostrom, E., 2009a. A polycentric approach for coping with climate change. In: Background Paper to the 2010 World Development Report. The World Bank, Washington DC. http://www10.iadb.org/intal/intalcdi/PE/2009/04268.pdf. Ostrom, E., 2010. Polycentric systems for coping with collective action and global en- vironmental change. Glob. Environ. Chang. 20, 550–557. Ostrom, E., 2014. A polycentric approach for coping with climate change. Ann. Econ. Financ. 15 (1), 97–134. Oxfam, 2018. Reward Work, Not Wealth. Briefing Paper (January). http://www.oxfam. org. Paulsen, S., 2017. Degrowth: culture, power and change. J. Polit. Ecol. 24 (1), 425–441. Perkins, P.E., 2017. Canadian indigenous female leadership and political agency on cli- mate change. In: Cohen, M.G. (Ed.), Climate Change and Gender in Rich Countries: Work, Public Policy and Action. Routledge, London, pp. 282–296. Pietilä, H., 1997. The triangle of the human economy: household – cultivation – industrial production. An attempt at making visible the human economy in toto. Ecol. Econ. 20, 113–127. Piketty, T., 2014. Capital in the Twenty-First Century. Harvard University Press, Cambridge, MA. Plumwood, V., 1993. Feminism and the Mastery of Nature. Routledge, London. Rose, C., 1986. The comedy of the commons: custom, commerce, and inherently public property. Univ. Chicago Law Rev. 53 (3), 711–772. Roser, Max, 2016. Global Economic Inequality. Our World in Data. https:// ourworldindata.org/global-economic-inequality. Roser, Max, Ortiz-Ospina, E., 2016. Income Inequality. Our World in Data. https:// ourworldindata.org/income-inequality. Rowan, C., 2019. The new rural reconstruction movement: a Chinese grass-roots move- ment for environmental sustainability and social justice. Ecol. Econ (in this issue). Salleh, A., 1997. Ecofeminism as Politics: Nature, Marx, and the Postmodern. Zed Books, London. Salleh, A. (Ed.), 2009. Eco-sufficiency and Global Justice: Women Write Political Ecology. Pluto Press, New York. Shimada, D., 2010. How can societies create common access to nature? In: The Roots and Development Process of the Bruce Trail, a Canadian Case Study. York University Faculty of Environmental Studies, Toronto (Post-doctoral research paper). http:// iasc2011.fes.org.in/papers/docs/356/submission/original/356.pdf. Shiva, V., 1988. Staying Alive: Women, Ecology, and Development. Zed Books, London. Shiva, V., Mies, M., 1993. Ecofeminism: Women, Culture, Nature. Zed Books, London. Simpson, L., 2011. Dancing on Our Turtle's Back: Stories of Nishnaabeg Re-creation, Resurgence and a New Emergence. ARP Books, Winnipeg. Spencer, P., Perkins, P.E., Erickson, J.D., 2018. Re-establishing justice as a pillar of ecological economics through feminist perspectives. Ecol. Econ. 152, 191–198. Temper, Leah, 2018a. Blocking pipelines, unsettling environmental justice: from rights of nature to responsibility to territory. Local Environ. https://doi.org/10.1080/ 13549839.2018.1536698. Temper, Leah, 2018b. Canadian clan faces gas pipelines injunction. Ecologist. https:// theecologist.org/2018/dec/06/canadian-clan-faces-oil-pipelines-injunction (6 December). Thomson, B., 2010. Pachakuti: Indigenous perspectives, edgrowth and ecosocialism. In: Climate & Capitalism, October 6. https://climateandcapitalism.com/2010/10/06/ pachakuti-indigenous-perspectives-degrowth-and-ecosocialism/. Trosper, R., 2009. Resilience, Reciprocity, and Ecological Economics: Northwest Coast Sustainability. Routledge, London/New York. Tuck, E., 2017. Can Reconciliation Take (Up) Place? ACME Lecture, Toronto. https:// www.youtube.com/playlist?list=PLRdtnJa5iycDPQ4YyfwV5YLFpo7wB_fr0. Turner, T.E., Brownhill, L.S., 2001. Gender, feminism and the civil commons: women and the anti-corporate, anti-war movement for globalization from below. Can. J. Dev. Stud. 22 (4), 805–818. Turner, N.J., Ignace, M., Ignace, R., 2000. Traditional ecological knowledge and wisdom of aboriginal peoples in British Columbia. Ecol. Appl. 10 (5), 1275–1287. Turner, T., Brownhill, L., Kaara, W., 2012. Degrowth? How about some de-alienation? Capital. Nat. Social. 23 (1), 93–104. UNDP, 2015. Imbalances in paid and unpaid work. In: United Nations Development Program, Human Development Report 2015, pp. 107–130. chapter 4. http://hdr. undp.org/sites/default/files/2015_human_development_report_0.pdf. Verma, R., 2017. Gross national happiness: meaning, measure and degrowth in a living development alternative. J. Polit. Ecol. 24 (1), 477–490. Warren, K., 2000. Ecofeminist Philosophy: A Western Perspective on What It Is and Why It Matters, Rowman & Littlefield; Lanham, MD. Whyte, K.P., 2014a. Indigenous women, climate change impacts, and collective action. Hypatia 29 (3), 599–616. Whyte, K.P., 2016. Indigenous Experience, Environmental Justice and Settler Colonialism. In: Bannon, B. (Ed.), In Nature and Experience: Phenomenology and the Environment. Rowman & Littlefield, Lanham, MD, pp. 157–174. Whyte, K.P., 2017a. Is it colonial déja vu? Indigenous peoples and climate injustice. In: Adamson, J., Davis, M. (Eds.), Humanities for the Environment: Integrating Knowledges, Forging New Constellations of Practice. Earthscan Publications, London/New York, pp. 88–104. Whyte, K.P., 2017b. Indigenous climate change studies: indigenizing futures, decolo- nizing the Anthropocene. Engl. Lang. Notes 55 (1–2), 153–162. Whyte, K.P., 2018a. Way beyond the lifeboat: an indigenous allegory of climate justice. In: Munshi, D., Bhavnani, K., Foran, J., Kurian, P. (Eds.), Climate Futures: Reimagining Global Climate Justice. University of California Press, Berkeley. Whyte, K.P., 2018b. Sovereignty, justice and indigenous peoples: an essay on settler co- lonialism and collective continuance. In: Barnhill, A., Doggett, T., Egan, A. (Eds.), Oxford Handbook of Food Ethics, pp. 345–366. Williams, C., 2005. A Commodified World? Mapping the Limits of Capitalism. Zed Books, London. Wilkinson, R., Pickett, K., 2009. The Spirit Level: Why Equality Is Better for Everyone. Penguin, London/New York, London/New York. Wily, Liz Alden, 2018. Collective land ownership in the 21st century: overview of global trends. Land 7 (68), 1–26. Women's Earth Alliance and Native Youth Sexual Health Network, 2016. Violence on the land, violence on our bodies: building an indigenous response to environmental violence. http://landbodydefense.org/uploads/files/VLVBReportToolkit2016.pdf. World Health Organization and World Bank, 2017. Tracking Universal Health Coverage: 2017 Global Monitoring Report. Wu, F., 2018. China: climate justice without a social movement? In: Munshi, D., Bhavnani, K., Foran, J., Kurian, P. (Eds.), Climate Futures: Reimagining Global Climate Justice. University of California Press, Berkeley. Xanthaki, A., 2007. Indigenous Rights and United Nations Standards: Self-determination, Culture and Land. Cambridge University Press, Cambridge. P.E.E. Perkins Ecological Economics 160 (2019) 183–190 190 http://www.ejolt.org/2016/09/degrowth-debate-growing/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0405 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0405 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0410 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0410 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0415 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0420 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0420 http://www.ammsa.com/publications/alberta-sweetgrass/violence-against-aboriginal-women-not-aboriginal-only-issue http://www.ammsa.com/publications/alberta-sweetgrass/violence-against-aboriginal-women-not-aboriginal-only-issue http://www.thefeministwire.com/2015/04/eco-feminist-appropriations-of-indigenous-feminisms-and-environmental-violence/ http://www.thefeministwire.com/2015/04/eco-feminist-appropriations-of-indigenous-feminisms-and-environmental-violence/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0435 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0435 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0435 http://www10.iadb.org/intal/intalcdi/PE/2009/04268.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0455 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0455 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0460 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0460 http://www.oxfam.org http://www.oxfam.org http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0470 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0475 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0475 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0475 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0480 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0480 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0480 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0485 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0485 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0490 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0495 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0495 https://ourworldindata.org/global-economic-inequality https://ourworldindata.org/global-economic-inequality https://ourworldindata.org/income-inequality https://ourworldindata.org/income-inequality http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0510 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0510 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0515 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0515 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0520 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0520 http://iasc2011.fes.org.in/papers/docs/356/submission/original/356.pdf http://iasc2011.fes.org.in/papers/docs/356/submission/original/356.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0530 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0535 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0540 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0540 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0545 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0545 https://doi.org/10.1080/13549839.2018.1536698 https://doi.org/10.1080/13549839.2018.1536698 https://theecologist.org/2018/dec/06/canadian-clan-faces-oil-pipelines-injunction https://theecologist.org/2018/dec/06/canadian-clan-faces-oil-pipelines-injunction https://climateandcapitalism.com/2010/10/06/pachakuti-indigenous-perspectives-degrowth-and-ecosocialism/ https://climateandcapitalism.com/2010/10/06/pachakuti-indigenous-perspectives-degrowth-and-ecosocialism/ http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0565 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0565 https://www.youtube.com/playlist?list=PLRdtnJa5iycDPQ4YyfwV5YLFpo7wB_fr0 https://www.youtube.com/playlist?list=PLRdtnJa5iycDPQ4YyfwV5YLFpo7wB_fr0 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0575 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0575 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0575 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0580 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0580 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0585 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0585 http://hdr.undp.org/sites/default/files/2015_human_development_report_0.pdf http://hdr.undp.org/sites/default/files/2015_human_development_report_0.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0595 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0595 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf7000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf7000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0600 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0600 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf1000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf1000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf1000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0610 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0610 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0610 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0610 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0615 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0615 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0620 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0620 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0620 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0625 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0625 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0625 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf4000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf4000 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0630 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0630 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0635 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0635 http://landbodydefense.org/uploads/files/VLVBReportToolkit2016.pdf http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0650 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0650 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0655 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0655 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0655 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0660 http://refhub.elsevier.com/S0921-8009(18)30302-1/rf0660 Climate justice, commons, and degrowth Introduction Ecofeminism, commons, climate justice, and degrowth Indigenous commons, climate justice, and degrowth Conclusion: equity, commons, and climate justice References 
work_7ei5m6rinjbz7i6f3ipra6hbsi	----	doi:10.1016/j.ijsu.2005.10.010 International Journal of Surgery (2005) 3, 233e234 www.int-journal-surgery.com EDITORIAL Distributive justice, starfish and natural disasters What does the earthquake in Kashmir have to do with the mammographic screening for early breast cancer? The link is tortuous but never the less very relevant for the readers of this journal. Last night I was giving a lecture to the PhD students at the Ludwig Institute of Cancer Research in London. In it I described the great advances that we are making in the medical treatment of breast cancer and the decreasing importance of the role of the surgeon in this disease. I then went on to expound on my thesis concerning the timing of the appear- ance of metastases in relation to the act of surgery and its link to the biological responses of the healing process.1 Indirectly this is also related to the controversy whipped up by the paper from Retsky and his colleagues published in the last issue of the Int. J. Surgery.2 They suggested that the increase in the short-term mortality from screening women under the age of 50 was related to these mechanisms [see editorials and corre- spondence in this issue]. Even if you reject that as implausable, taking the most optimistic assess- ments from the screening advocates you still have to screen about 1600 women for 10 years to save one life!3 At the end of my talk a bright young student asked me if as a result of these data whether I could see a time when surgery would no longer be a part of breast cancer management and if so how would I spend my time. After a moment’s hesita- tion I replied that yes I look forward to that day but by then I would be fully retired from clinical practice! After another moment’s hesitation I went on to say that there are many traditional areas in the surgical treatment of chronic disease when surgeons will enjoy less and less of a role yet at the same time we will always need surgeons for trauma on the roads, and for the results of natural disasters and global terrorism. 1743-9191/$ - see front matter ª 2005 Surgical Associates Ltd. Pu doi:10.1016/j.ijsu.2005.10.010 Justice This then leads me into a consideration of the ethical imperative of justice in health care. What do we mean by justice? The shorter Oxford English dictionary defines justice as: ‘‘The quality of being (morally) just or righteous’’ Lord Chief Justice Devlin provided a more useful definition e‘‘We can use the word to mean social justice and then we say that the law is just if it conforms to some social principle, such that all men are equal; that is justice in rem.’’4 Note the distinction between the law and justice. However, as far as the practice of medicine is concerned Tom Beauchamp makes it clear that our primary concern is distributive justice. ‘‘The principle of justice is really many principles about the distribution of benefits and burdens e to cite one example, an egalitarian theory of justice implies that if there is a departure from equality of distribution of health care benefit and burdens, such a departure must serve the common good and enhance the position of those who are least advantaged in society.’’5 It can therefore be judged that the principle of justice will often be in conflict with the principle of autonomy. In fact most of the toughest ethical dilemmas we face result from the quite appropri- ate tension between the ethical principles of justice and autonomy. The parable of the starfish My late brother, Professor David Baum, was a pae- diatrician of great distinction who died in office as blished by Elsevier Ltd. All rights reserved. http://www.int-journal-surgery.com 234 Editorial President of the Royal College of Paediatrics and Child Health. He had a massive myocardial in- farction whilst leading a charity bike ride to raise money for the children in the camps of Kosovo. He was committed to equality of global health care for children in the name of justice. He was fond of quoting the parable of the starfish: One can sympathize with the old man when faced with the enormity of the task and also with boy whose action saves one life. As surgeons we have the dual responsibility to care for the individual and to oversee the just distribution of scarce resources in our clinics, our hospital, our health district, our nation and the under-privileged of the third world. I anticipate your cry: ‘‘We are practical men Professor how on earth are we to achieve these goals?’’ For a start whenever we are prioritizing our waiting lists we are exercising the principle of justice. We must resist the politician waiting list initiatives and insist clinical need comes before political expediency. In the inevitable wrangle over hospital resources, always remember your freedom to carry out as many varicose veins as you damn well like may mean another old lady waits another year for a hip replacement. However, taking a global perspective is even more daunting. The best way we can discharge this responsibility as surgeons is to encourage and reward our junior colleagues for taking leave of absence to work in the third world. This will increase the number of doctors in the host country and provide better experience than a 40-h week in a teaching hospital! In addition as a consultant, why not take a sabbatical and save some starfish from the sun. I know many who have done so and the reward is in the smiles of those who have lived life without hope or expectation of reaching adulthood. I passionately believe that when we consider the An old man walking the beach at dawn noticed a boy picking up a starfish and throwing it into the sea. When asked why the boy explained that the stranded starfish would die if left to lie in the morning sun. ‘‘But there are millions of starfish on the beach’’. Said the old man. ‘‘How can your efforts make a difference?’’ The boy picked up another starfish. ‘‘It makes a difference to this one,’’ he said. ethics of distributive justice, as surgeons we must accept a global perspective. Over the last two weeks the number of deaths in the Kashmiri disaster has risen to 80,000. Many of these deaths were preventable had there been adequate surgi- cal support on the ground. Yet here we are debating the value of mammographic screening for the under 50s, that ties up millions of dollars of resources and thousands of surgical man hours chasing up microscopic foci of borderline pathol- ogy with procedures that might even do harm in the short term. What kind of world do we live in when the poor of the third world die in their tens of thousands from natural disasters such as floods and earthquakes whilst the oh so precious women- folk of the richest countries of the world consume huge medical resources in chasing up phantoms? As I was watching the news bulletins about the earthquake and the Tsunami, I was moved to tears and feelings of guilt. On both occasions I stretched out my hand from the comfort of my arm chair and phoned up the number for donations that appeared on the screen at the end of the broad- casts, pledging £60.00 (90 euros, $100). I soon found out that I couldn’t buy peace of mind or salve my conscience so cheap. If you feel the same as me, please write a letter and let us know how you think the surgeons in the developed world might organize themselves to help the overworked and under resourced surgeons of the developing world. References 1. Baum M, Chaplain M, Anderson A, Douek M, Vaidya JS. Does breast cancer exist in a state of chaos? Eur J Cancer 1999; 35:886e91. 2. Retsky M, Demicheli R, Hrushesky WJM. Does surgery induce angiogenesis in breast cancer? Indirect evidence from relapse pattern and mammography paradox. Int J Surg 2005;3:179e87. 3. Rembold CM. Number needed to screen: development of a statistic for disease screening. Br Med J 1998;317: 307e12. 4. The judge, Patrick Devlin. Oxford: Oxford University Press; 1981. 5. Beauchamp TL. The four-principles approach. In: Gillon Raanan, editor. Principles of health care ethics. Chi- chester, New York, Brisbane, Toronto, Singapore: John Wiley and Sons; 1994. Michael Baum University College London, Portland Hospital, 212-214 Great Portland Street, London W1W 5QN, UK Tel.: þ44 2073908447; fax: þ44 2073908448. E-mail address: michael@mbaum.freeserve.co.uk mailto:michael@mbaum.freeserve.co.uk Distributive justice, starfish and natural disasters Justice The parable of the starfish References 
work_7eww7rihnbeojjwfdyc6s7626m	----	King’s Research Portal DOI: 10.1177/1474885116664191 Document Version Peer reviewed version Link to publication record in King's Research Portal Citation for published version (APA): Tebble, A. J. (2020). On the circumstances of justice. EUROPEAN JOURNAL OF POLITICAL THEORY, 19(1), 3-25. https://doi.org/10.1177/1474885116664191 Citing this paper Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination, volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are again advised to check the publisher's website for any subsequent corrections. General rights Copyright and moral rights for the publications made accessible in the Research Portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognize and abide by the legal requirements associated with these rights. •Users may download and print one copy of any publication from the Research Portal for the purpose of private study or research. •You may not further distribute the material or use it for any profit-making activity or commercial gain •You may freely distribute the URL identifying the publication in the Research Portal Take down policy If you believe that this document breaches copyright please contact librarypure@kcl.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1177/1474885116664191 https://kclpure.kcl.ac.uk/portal/en/publications/on-the-circumstances-of-justice(093564e6-7f4a-4c44-9508-1fa5fb03a368).html https://doi.org/10.1177/1474885116664191 1 On the Circumstances of Justice This is the final accepted version of the article published by SAGE Publishing in The European Journal of Political Theory on September 5, 2016 as doi:10.1177/1474885116664191 An epistemic account of the circumstances of justice allows one to make three important claims about the Humean and Rawlsian ‘standard account’ of those circumstances. First, and contrary to Hume, the possibility and necessity of justice are rooted not in limited beneficence or confined generosity, but in the epistemic insight that the knowledge relevant to deciding what to do with the fruits of social cooperation is for a variety of reasons uncentralisable. Second, and regardless of whether Rawlsian ethical disagreement is more persuasive as a circumstance of justice than Humean confined generosity, it does not explain the possibility and necessity of justice, for the uncentralisability of social knowledge would be decisive even under conditions of unanimity. Finally, the epistemic account not only shows what the circumstances of justice are but, contra Cohen’s critique of the standard account, also provides at least some guidance as to what justice itself may be. Adam James Tebble, Department of Political Economy, King’s College Londoni 1. Introduction The idea of the circumstances of justice, or those facts that explain both the possibility and necessity of justice, has a long pedigree in political philosophy and makes an appearance in many of the works familiar to the student of the discipline. Most notable here is an account of those circumstances often attributed to David Hume which, as Peter Vanderschraaf (2006:344, n.7) and others have commented, is almost unanimously accepted by contemporary political philosophers. To be sure, there is some debate as to whether Hume should be considered the undisputed father of the notion of the circumstances of justice. As Vanderschraaf (2006:344, n.7) has also noted, aspects of Hume’s account are foreshadowed in both Plato and Aristotle, as well as in St. Thomas Aquinas and Hobbes, 2 although unlike the Scot none of these thinkers made self-conscious reference to the idea of the circumstances of justice per se in their respective discussions. Interesting and insightful as these earlier contributions are, it will not be our objective to discuss them at length here. Rather, we will be concerned to question the persuasiveness of the modern, or standard, account of the circumstances of justice, understood as that attributed to Hume and subsequently developed by John Rawls.ii To this end I will defend a substantial revision of the standard account as part of a wider argument that questions whether Hume’s and Rawls’s respective characterisations of the circumstances of justice do the explanatory work expected of them. In the section that follows, and in acknowledging the significant differences with regard to theoretical aims and objectives that exist between them, I will set out both the account of the circumstances of justice attributed to Hume and Rawls’s development of that account, via his discussion of confined generosity and ethical disagreement as circumstances of justice in A Theory of Justice. Subsequent to this, I will lay the groundwork for my revision of the standard account by examining G. A. Cohen and Michael Sandel’s discussions of Rawls on ethical disagreement. In the case of Cohen, we will see that disagreement militates against the significance of a circumstance that both Hume and Rawls include in their accounts: moderate scarcity. Moreover, in the case of Sandel, and whilst failing to dislodge it as a circumstance of justice, we will see that there emerges a significant problem with Rawlsian disagreement that necessitates a major revision of the standard account. Building upon this, I will defend an alternative account of the circumstances of justice that emerges from a consideration of what authors working in the epistemic tradition of liberalism call society’s knowledge problem. Central here will be the claim that the standard account errs in positing either confined generosity or the propensity to disagree as explanations of the possibility and necessity of justice. Rather, it is the altogether different need to coordinate human knowledge with regard to the ends of life and the means 3 to pursue them that accounts for the possibility and necessity of justice. I will conclude my argument by considering how, if at all, our epistemic revision of the standard account may respond to some possible objections. Among these will be Cohen’s critique of the standard account as containing hidden ideological commitments. In responding to Cohen, I will claim that the circumstances of justice do not only offer guidance with respect to the conceptual question of the conditions that make justice possible and necessary, but also with respect to the question of what justice substantively requires. 2. The standard account Hume, moderate scarcity and confined generosity Traditionally understood, the circumstances of justice are those facts that explain both the possibility and necessity of justice. In the modern era what is called the standard account of those circumstances is associated with Hume and Rawls, although as we will presently see that their respective aims when discussing them are quite different It is commonly held that Hume (1751[1995]:188, 1740[1978]:486-9, 494-5) identifies two circumstances that explain the possibility, or origin, of rules of justice governing property and of (typically contractual) promise-keeping, and of how the necessity, or obligatory nature, of the artificial virtue of obeying those rules may be made intelligible to us: moderate scarcity of resources and our limited beneficence, or confined generosity.iii With respect to moderate scarcity, the possibility of rules of justice and the necessity of obeying them is established counterfactually. If we lived in a world of material abundance - let us call this world Cornucopia - there would be no need for such rules, or for a requirement for us to act justly even when our immediate interests suggest we should not, as each would have more than enough with which to make do (Hume, 1751[1995]:183-4). Hume makes this point about the relationship of moderate scarcity to justice still clearer by inviting us to assume the other extreme and imagine ourselves in a state of aggravated material scarcity. Here, and in contrast to it being unnecessary in a world of abundance, there would be no possibility of our acting justly for this virtue would be 4 ‘suspended’ and supplanted by the imperatives of ‘necessity and self-preservation’ (Hume, 1751[1995]:186). To be sure, and as both Jonathan Harrison and Cohen (2008:332, 334) point out, Hume may be understood to read the scope of justice somewhat narrowly in this respect, for his claim about abundance only shows that there would be no need for rules governing property, the keeping of promises and the virtue of our following them.iv These, however, do not exhaust all the rules that we would typically consider to be rules of justice. If, for example, under conditions of material abundance people ‘were sometimes malevolent’ society would still ‘need some rules of justice to protect each of its members from the others’, a point which we will see presently is amplified by the notion of Rawlsian disagreement (Harrison, 1981:264). Hume adopts a similar approach to establish the importance of our confined generosity, or limited beneficence as a second circumstance of justice. Were we wholly beneficent and miraculously unconfined in our generosity, he claims, we would have no need for rules of justice or for acting justly when personal interests and the limits of our affections suggest otherwise as we would always have the interests and needs of our fellows in mind. ‘[I]f everyone had the same affection and tender regard for everyone as for himself,’ Hume (1740[1978]:495) writes in the Treatise, ‘justice and injustice would be equally unknown among mankind’. Similarly, he (1740[1978]:494-5) claims that if we ‘[e]ncrease to a sufficient degree the benevolence of men ... you render justice useless, by supplying its place with much nobler virtues’. At the other extreme, and similarly to aggravated scarcity in the case of the first circumstance, were we wholly if not malevolently self-interested justice would be impossible, premised as it is upon virtuous behaviour when interests conflict, rather than upon a state of perpetual warfare like that to be found in a Hobbesian state of nature, or what Hume describes in the Enquiry (1751[1995]:187) as ‘the society of ruffians’. Rawls’s angels: from limited beneficence to ethical disagreement How, then, does Rawls fit into the standard account? As has already been noted, despite being associated with one another in the literature, there are significant differences between the approaches 5 of Hume and Rawls. First, the author of A Theory of Justice conceives of justice as something we may predicate of rules, institutions and schemes of social cooperation - or what he also calls ‘practices’(Rawls, 1999a:112. See also Rawls, 1999b:45-8; 1999c:190). Thus, in contrast to Hume, for whom we have seen justice is the artificial virtue of our following rules governing property and the keeping of promises, for Rawls justice is the virtue that makes these rules just. ‘Justice’, he (1999a:3) famously notes in A Theory of Justice, ‘is the first virtue of social institutions as truth is of systems of thought’. Moreover, and again in contrast to his predecessor, Rawls is not concerned with the circumstances of justice as either those conditions that explain the origin of rules of justice, or with how, despite its factitiousness, the virtue of following them may nonetheless be made intelligible to us. Rather he is concerned with the conditions which make it possible to characterise the rules that set the terms of social cooperation as just. We may say, then, that the Humean questions of the circumstances that explain the origin of rules of justice and which make the virtue of acting justly intelligible are different to Rawls’s question regarding the circumstances which make it possible and necessary to predicate justice of those rules. Rawls (1999a:109-10) also distinguishes himself from his Scottish predecessor by introducing a distinction between objective and subjective circumstances of justice, with the former being facts about the world and the latter facts about our ethical existence.v With respect to the first, objective, circumstance Rawls follows Hume in citing moderate material scarcity, although now as an explanation for why the terms of social cooperation can and need to be just, rather than of the origin of justice or of the virtue of our being just. ‘[A]lthough social cooperation is productive and mutually advantageous (one person’s or group’s gain need not be another’s loss)’, Rawls (1999e:256. See also Rawls, 1999d:234) notes, ‘natural resources and the state of technology are such that the fruits of joint efforts fall short of the claims that people make.’ Thus, just as in the bountiful conditions of Cornucopia there would be no need for rules of justice, so there would be no possibility of them under conditions of aggravated scarcity. ‘Natural and other resources’, he (1999a:110) writes, ‘are not so abundant that schemes of cooperation are superfluous,’ yet at the same time ‘nor are conditions so harsh that fruitful ventures must inevitably break down’.vi 6 In contrast to their agreement with regard to the first circumstance, in the case of the second, subjective, circumstance of justice, Rawls can be taken as disagreeing with Hume to the extent that it is supposed to show how it is possible and necessary to characterise the rules that set the terms of social cooperation as just. Our confined generosity, that is, does not explain the necessity of rules of justice. It is, rather, the notion of ethical disagreement that does this work. ‘[P]ersons and associations,’ Rawls claims in ‘Kantian Constructivism and Moral Theory’ (1999f:323. See also Rawls, 1999e:256, 1999d:234) ‘have contrary conceptions of the good as well as of how to realize them, and these differences set them at odds, and lead them to make conflicting claims on their institutions.’ Rawls (1999a:129) is happy, of course, to concede Hume’s point that ‘in an association of saints agreeing on a common ideal ... disputes about justice would not occur. Each would work selflessly for one end as determined by their common religion, and reference to this end ... would settle every question of right.’ The question, however, is whether such a community of ‘perfectly selfless angels’ has ever, or indeed, could ever exist, and matters are made hopelessly complicated in this regard when we pause to consider the situation of a modern pluralistic society (Vanderschraaf, 2006:3300. ‘[B]enevolence,’ Rawls (1999a:166) famously writes, ‘is at sea as long as its many loves are in opposition in the persons of its many objects.’ Similarly, he (1999a:112) comments insightfully that ‘[t]he spiritual ideals of saints and heroes can be as irreconcilably opposed as any other interests.’ Vanderschraaf (2006:330) makes this point lucidly by invoking, following C D Broad, the example of the survivors of a shipwreck. If all the survivors were such perfectly selfless angels, Vanderschraaf writes, ‘then each will be tempted to leave all of what little food they have for the others.’ Yet, doing this will result in all of them dying of hunger despite their express altruistic intentions. Because of this danger, the angelic survivors agree instead to divide the food so that each has something to eat. ‘What is necessary for justice,’ Vanderschraaf (2006:330) concludes, ‘is not moderate selfishness, but a moderate conflict of interests,’ regardless of whether the interests in question are ‘completely selfish, utterly selfless, or somewhere in between’.vii To be sure, it could be objected that, despite his own intentions, Rawls is talking past Hume and that the standard account is little more than a figment of the modern imagination. Indeed, given 7 that in seeking to explain the origin of rules of justice and the obligatory nature of just behaviour Hume is doing something altogether different to Rawls, what is called the standard account is more accurately described as Rawls’s development of his own reading of Hume, rather than of what Hume himself postulates.viii We will return to this matter in section 4, where we will see that Rawls’s are not the only grounds upon which we may reject the explanatory power of limited beneficence. For now, however, we may note on Rawls’s behalf that, were we concerned to set out the circumstances that show how the terms of social cooperation both can and need to be just, we ought not resort to Humean confined generosity to do so. Rather, the relevant subjective circumstance of justice is the fact of ethical disagreement about ends. Taken together, then, we see how the objective and subjective circumstances make justice possible and necessary insofar as it responds to the problem of the allocation of limited resources to people who, following Rawls’s development of Hume, disagree. In our imperfect world we require some way of adjudicating what should be done with the fruits of social cooperation and this is what justice achieves. 3. Ethical disagreement and the standard account Cohen, disagreement and moderate scarcity There are a diversity of responses to the standard account which, whilst certainly interesting in their own right, will not be engaged with in great detail here.ix Two responses that are relevant to our assessment of the explanatory adequacy of the standard account, however, are those of G. A. Cohen and Michael Sandel. As was suggested earlier, Cohen’s discussion of Rawlsian ethical disagreement is significant insofar as it may be read to prompt a further development of the standard account beyond that often considered to have been achieved by Rawls. Here, ethical disagreement is not just significant for the explanatory standing of Humean confined generosity, but also for the moderate material scarcity that both Hume and Rawls agree is indispensable to their respective accounts. Sandel’s discussion of Rawls’s view is also significant in this developmental respect insofar it enables us to clarify the conceptual terrain upon which an alternative epistemic account that calls into question the significance of either limited beneficence or ethical disagreement may be established. Finally, 8 Cohen’s discussion is significant in a second respect insofar as it highlights the issue of the relationship between the question of what the circumstances are in which justice is both possible and necessary and the normative question of our identifying what justice is. Leaving this discussion to the penultimate section of this paper, and discussion of Sandel’s contribution to the next section, let us commence with an analysis of Cohen’s discussion of the relationship between ethical disagreement and moderate resource scarcity. In addition to what Rawls has to say about its impact upon the standing of confined generosity, for Cohen ethical disagreement also shows why moderate resource scarcity cannot qualify as a circumstance of justice. Adopting a similar line of argument to Harrison in his discussion of Hume on moderate scarcity and malevolence, Cohen claims that Rawls’s shift from confined generosity to ethical disagreement with regard to the subjective circumstance of justice also reveals the difficulty presented by the objective circumstance of moderate scarcity to be moot. The problem here is that the example of material abundance, to which appeal is made counterfactually to establish moderate scarcity as a circumstance of justice, fails in this regard (Cohen, 2008:331, n. 88). Even under the bountiful conditions in Cornucopia, and contrary to the claim that it shows how justice would be unnecessary, there would still be conflicts of interest and hence a need for rules of justice, once it is recognised that, in addition to being capable of having what Cohen (2008:333) calls ‘spiteful motivations’, people also have different conceptions of the good that may require that we do different things with resources. This is not to say, of course, that Rawls either fails to see or ignores this point. ‘Although moderate scarcity may possibly be overcome or largely mitigated,’ he (Rawls, 1999f:326, 329) writes, ‘justice as fairness assumes that deep and pervasive differences of religious, philosophical, and ethical doctrine remain.’ The important point in this connection, however, is whether from the standpoint of a persuasive explanation of the possibility and necessity of justice, the overcoming of moderate scarcity matters. It appears that Rawls's point about mitigation is that it shows moderate scarcity to be merely a less important circumstance of justice than disagreement. But, we may concur with Cohen that it does more than this. The mitigation of 9 moderate scarcity having no impact upon ethical disagreement shows that moderate scarcity is of no explanatory import at all. Indeed, the problem of moderate scarcity’s explanatory irrelevance is deeper than Cohen recognizes. For not only may different conceptions of the good require that we do different things with resources. They may require that we refrain from doing things that other conceptions enjoin. It is plausible, for instance, that in Cornucopia one conception of the good - let us call it conception A - requires that we build place of worship x, and is indifferent to the construction of place of worship y that is required by conception B. It is also the case, however, that in Cornucopia conception B requires that only place of worship y be built, to the exclusion of x, and that another conception, conception C, is doctrinally committed to forbidding the construction of any places of worship at all. In such circumstances, it is evident that no amount of material abundance in Cornucopia would obviate the need for rules of justice to decide such conflicts peacefully. It follows, therefore, that if we would still need justice even under conditions of abundance it cannot be the case that the less demanding assumption of moderate material scarcity explains our need for it. Rawlsian disagreement, therefore, has an effect upon the standard account beyond that which both Rawls and Cohen expect. Not only is it decisive with respect to the explanatory power of confined generosity, the fact of disagreement about the ends of life is also decisive with respect to moderate material scarcity. To be sure moderate scarcity does make more vivid Rawls’s deeper, ethical explanation for the necessity of justice and of why it needs to assume its ‘peculiar’ and ‘special’ role as the first virtue of social institutions (Rawls, 1999d:234, 1999e:256). Making an explanation more vivid, however, is not the same thing as giving that explanation, and insofar as it incorporates moderate scarcity into its explanation of the possibility and necessity of justice Rawls’s development of the standard account is therefore to be rejected. Sandel, disagreement and the inverse proportionality thesis Having seen how the explanatory standing of both moderate scarcity and of confined generosity as circumstances of justice is undermined by ethical disagreement, it remains to consider whether this 10 Rawlsian reformulation of the second, subjective, circumstance of justice provides an explanation that is satisfactory. Doing so is doubly significant for we will presently see that it is out of this discussion that the need to articulate an alternative conception of the circumstances of justice becomes apparent. A useful starting point here is Sandel’s (1982:28-47, 168-72) critique of the underlying epistemic commitments of Rawls’s account and of how it undermines Rawls’s claim that justice is the first virtue of social institutions. As we have just seen, and as Sandel also tells us, it is the separateness of persons, where our diverse conceptions of the good and associated wants and desires are different that explains the possibility and necessity of justice. Yet, Sandel also wants to claim that it is not just the fact that our ends differ and that we consequently disagree either about whom we should act benevolently towards, or what doing so requires, that accounts for the need for justice. The consequences of Rawls ‘taking seriously the distinction between persons,’ Sandel (1982:171) claims, ‘are not directly moral but more decisively epistemological’ insofar as they highlight how our conceptions are largely inscrutable and opaque to others. ‘What the bounds between persons confine,’ he (1982:171) claims, ‘is less the reach of our sentiments ... than the reach of our understanding, of our cognitive access to others’. To be sure, in the case of more intimate relationships, such as those to be found within the family and amongst friends, one may have at least some knowledge of the conceptions, needs, wants and desires of others (although, as we will see presently, St. Thomas Aquinas gives us reason to be sceptical about even this much). This notwithstanding, it is what Sandel (1982:172) calls this ‘epistemic deficit’ between subjects that accounts in Rawls for the possibility, necessity and the ultimate priority or ‘pre-eminence’, of justice. ‘[W]here for Hume we need justice because we do not love each other well enough,’ he (1982:172) writes, ‘for Rawls we need justice because we cannot know each other well enough for even love to serve alone.’ Sandel, of course, is at pains to reject this view that he attributes to Rawls when claiming that considerations of fraternity and of community demonstrate that the circumstance of ethical disagreement, upon which the primacy of the virtue of justice depends, need not hold. Given, that is, a high level of fraternal feeling and benevolence of the type to be found in friendship, within the 11 family, or in community, there would be no conflict over moderately scarce resources. Moreover, ethical disagreement is only significant as a circumstance of justice if we additionally assume that we are largely inscrutable or opaque to one another. But why should we accept the Rawlsian picture of opacity, asks Sandel? A way of making Sandel’s claim clear here is to ask whether the society of angels that Rawls describes as one where there would be no need for justice could ever obtain. Clearly Rawls and other liberals think not. Yet, for Sandel, and even if the benevolence and familiarity that a society of angels could supply were not a realistic option, it may be supplied by the bonds of community. Indeed, when the constitutive bonds of community are taken into consideration, it is not at all clear that we are opaque to one another in the manner he claims Rawls believes gives justice its priority. ‘[I]n so far as our constitutive self-understandings comprehend a wider subject than the individual alone, whether a family or tribe or city or class or nation or people,’ writes Sandel (1982:172), to this extent they define a community in the constitutive sense. And what marks such a community is not merely a spirit of benevolence, or the prevalence of communitarian values, or even certain ‘shared final ends’ alone, but a common vocabulary of discourse and a background of implicit practices and understandings within which the opacity of the participants is reduced if never finally dissolved. Thus, for Sandel (1982:31) because ties of community overcome the epistemic deficit inherent in the notion of the separateness of persons, and upon which Rawls founds not just the possibility and necessity but the priority of justice, ‘justice is the first virtue of social institutions not absolutely, as truth is to theories, but only conditionally, as physical courage is to a war zone’. There is for Sandel, a relationship of ‘inverse proportionality’ (Badhwar, 1993:258) between relations of community and relations of justice, where the extent to which the former are extant is the extent to which the latter are surplus to requirements. We need not be detained by the question of whether Sandel’s reading of Rawls on the separateness of persons is a persuasive one. More important for the purposes of assessing Rawls’s 12 claim about disagreement is an assessment of whether Sandel’s claim about inverse proportionality is true. Answering this depends upon which of the two senses in which the inverse proportionality thesis may hold one considers. The ethical version of the inverse proportionality thesis holds that ‘[i]n so far as mutual benevolence and enlarged affections could be cultivated more widely, the need for ‘the cautious, jealous virtue of justice’ would diminish in proportion, and mankind would be better for it’ (Sandel, 1982:169). By contrast, the epistemic version of the inverse proportionality thesis, the one that denies what Sandel (1982:172) calls the ‘epistemic deficit’, holds that ‘[i]n so far as justice depends for its pre-eminence on the separateness or boundedness or persons in the cognitive sense, its priority would diminish as that opacity faded and this community deepened’. As we have already seen, one reason to doubt the truth of the ethical reading of the inverse proportionality thesis is that benevolent people may still disagree about intermediate ends even if they do agree about ultimate ends. Rawls, for example, claims in establishing the explanatory importance of disagreement, that even benevolently or altruistically-motivated individuals may disagree about what to do with resources, a point which Simon Caney (1991:512, n.8) notes is also to be found in Kant. Similarly, for Aquinas even in an association of saints there may still be disagreement about what action is required and in this connection we may recall Rawls’s rejection of confined generosity. Of course, for Sandel friendship or community in its highest form obviates the need for justice because it involves the pursuit of goals known and shared by all. Yet, for Aquinas even under such circumstances, and even if this were an appropriate way to understand either friendship or community, justice would nevertheless be required. As Schwartz Porzecanski (2004:39. See also Schwartz Porzecanski, (2007:124-7) highlights in his reading of Aquinas, ‘[s]ince two or more courses of action may legitimately be seen as instantiating the common goal, reference to the common goal alone is not sufficient in solving disputes.’ Aquinas’s point is echoed by Badhwar (1993:9). Even if we assume shared final ends they would not aid us in making decisions about the intermediate ends that are subordinate to them. Thus, writing with respect to the example of a family who agree on final ends, but who at the same time have to make decisions about how they will be pursued she (Badhwar, 1993:10) concludes that ‘[r]eference to a common good will not ... settle every question of 13 right’. Similarly, Caney (1991:512) contends that the claim about benevolence presupposes that ‘there will only be need for reference to a set of rights if people are selfish.’ Yet, citing the examples of a highly benevolent religious community where there is dispute over the position of women with respect to office-holding, and the problem of altruists’ dilemmas, even under conditions of benevolence, individuals still need rights because they may ‘still disagree about who should have what’ (Caney, 1991:512).x Thus, contrary to Sandel’s claim about community, even if there is a goal that everyone knows and shares, it does not follow that there is no need to accommodate conflicting interests and aims. There is a more profound reason for rejecting Sandel’s inverse proportionality thesis in its ethical guise and thus side with Rawls on disagreement. Even if Sandel were right that relationships of benevolence obviate the need to demand that our rights be respected or that justice be meted, it does not follow for at least two reasons that we should not have such rights, especially when the reasons why people act benevolently may be morally troubling. Citing the contrasting examples of an altruistic office worker who performs all the undesirable tasks in full knowledge that he has as equal a right to more pleasurable duties as his colleagues, and of the housewife who alone does all the chores but who never questions whether this is fair or just, ‘[u]nanimity and benevolence,’ Caney (1991:512) writes, ‘are often generated in non-autonomous ways’. Susan Moller Okin makes a similar point in critiquing Sandel’s Humean claim that because love can do the work of justice within domestic settings, the family is not marked by the circumstances of justice. Citing the practice of couverture, she shows that even if relationships of love provide guidance for resolving many if not most conflicts of interest within such settings, it does not follow that they ought to resolve them all and that there is therefore no need for relationships of justice in them. ‘[E]ven if wives never had occasion to ask for their just share of the family property, due to the generosity and spontaneous affection of their husbands,’ she (1989:30-1) writes, ‘we would be unable to assess the families in which they lived from a moral point of view unless we knew whether, if they did ask for it, they would be considered entitled to it.’ 14 For Caney, such examples are instructive insofar as they make clear what Rawls has to say about disagreement and the priority of justice, and why Sandel’s discussion of community ties and the inverse proportionality thesis fails to grasp it. Rawls’s claim about the priority of justice does not commit one to the view that it must be invoked on all occasions, but rather that it needs to be available when we do need to call upon it. Even if relationships among families, friends and communities are usually benevolent, that is, it does not follow that justice is unnecessary. Thus, for Caney Sandel confuses the issue of whether we may on occasion waive our rights with that of whether we require them. Individuals, that is, may waive their rights when benevolence reigns, but that is not the same as their not requiring them, or that their background institutions need not be just. Personal relations need not always be marked by justice - indeed, it would be odd and oppressively dull if they were - but our institutions, such as a regime of rights and liberties upon which we may make claims upon one another about the fruits of social cooperation, including in usually benevolent intimate personal settings, do need to be marked by them. 4. The circumstances of justice: an epistemic view From the terms of social cooperation to the terms of social coordination Given our agreement with Rawls on the implications of ethical disagreement for confined generosity, and with Cohen on its implications for moderate scarcity, and granted that the ethical variant of Sandel’s inverse proportionality thesis fails to dislodge it, it looks as if ethical disagreement, and with it at least part of the standard account, remains unvanquished. Having vindicated Rawls’s position with regard to the ethical inverse proportionality thesis, therefore, we turn now to the question of the persuasiveness of Sandel’s argument in its epistemic guise. Doing so is important not just because it enables us to assess Sandel’s critique of Rawls on disagreement further but because, crucially for present purposes, it brings to light a problem that leads us to ultimately part company with Rawls and build an alternative, epistemic, conception of the circumstances of justice. 15 We may assess the epistemic variant of the inverse proportionality thesis in two distinct ways, the first of which is to assess the degree to which it holds true in the case of close, or what we may call face-to-face, social ties. One reason to reject Sandel’s argument as grounds for his claim that close social ties may do the work that Rawls claims justice ought is because even in the case of relationships within families and between friends the problem of interpersonal inscrutability or opaqueness, and of the epistemic deficit that is attendant to it, still remains. As was hinted at in our discussion of the ethical variant of the inverse proportionality thesis, Aquinas claims that justice is still needed between friends, for even friends do not have direct knowledge of one another’s motives or desires. ‘There is no unmediated access to the heart, not only because what occurs in the heart is hidden by the body - the imperfect vehicle of expression of the heart - but also because of the fact that “the will shuts up its secrets” [voluntas claudens sua secreta]’ (Schwartz Porzecanski, 2007:126). To assume that friendship is solvent of the epistemic opacity upon which the need for justice is founded would be to assume too much. As Aquinas (2014:I.qu.57a.4c) puts it in the Summa, ‘all that is in the will, and all things that depend only on the will, are known by God alone’. Moreover, and to the extent that mutual inscrutability may not be overcome by close social ties, Sandel is wrong to extend his argument to the case of inscrutability within communities where these too are solely marked by race-to-face relations. If we assume, reasonably, that a face-to-face community is no more and no less than a complex of face-to-face relationships, then Aquinas’s problem would also hold. It is at this juncture where we not only encounter a second set of reasons to reject Sandel’s epistemic variant of the inverse proportionality thesis, his critique of disagreement and with it the priority of justice. Most significantly, in assessing Sandel’s epistemic argument we may also uncover a different but more telling set of reasons to reject the significance of both Humean confined generosity and Rawlsian disagreement themselves as circumstances of justice. First, even if we had reason to doubt Aquinas’s view of the moral epistemology of relationships in face-to-face communities and agree with Sandel that there is no epistemic deficit in them, Sandel is nevertheless wrong to claim that the epistemic deficit does not exist in all forms of community and that justice is therefore ill-suited as a model for social cooperation. That is, even if we were to part with Aquinas 16 and accept Sandel’s claim that there is no epistemic deficit in face-to-face communal settings, he is wrong in the case of modern complex societies. Caney’s (1991:512) objection that ‘[m]odern societies are not analogous to such close-knit groups and thus the circumstances of justice do obtain’ becomes salient here, for it is not only the basis upon which he makes a claim about Sandel’s political naïveté; that it is unrealistic of Sandel to think that societies are not marked by conflict. Caney (1991:512) also claims that the examples of benevolent, conflict-free relationships Sandel cites are importantly limited with respect to modern societies insofar they are conspicuous by their absence relative to the sum total of all relationships to be found within them. To be sure, Caney’s point here is a different one to Aquinas’s with respect to the inscrutability or opaqueness of the soul. The problem is not that the innermost thoughts and motivations of even those closest to us are unknowable or knowable only to God, although the personal disappointments and betrayals that punctuate our lives may attest to this being the case. Rather, it is the inscrutability that accompanies social distancing in complex, or what Hume (1740[1978]:487) calls ‘large’ societies, that is decisive in this respect. Sandel’s friendship/family model is for Carey unpersuasive and cannot serve as an alternative form of social bonding and mutual knowing that exposes the contingency rather than the priority of justice not just because it naïvely assumes away the problem of conflict. It fails to fulfil this role because it is blind to the fact that, in the overwhelming majority of circumstances, we do not and cannot know either what our fellows want, need or require, the relative intensity with which they do so, nor which bundles of resources and production processes are most appropriate for meeting them. Given that the intimate face-to-face nature of the relationships to be found among friends, within the family and within community cannot therefore serve as a model of relations in large or complex societies, it would be ‘implausible,’ and not just naïve Caney (1991:512) suggests, ‘to think that political society could be conceived along these lines’. The persuasiveness of Caney’s response to Sandel notwithstanding, defenders of ethical disagreement should not take too much comfort from his argument. The point he makes about the epistemology of social scale is not only noteworthy because of what it rejects in Sandel’s discussion. It gains an additional significance in drawing our attention to an altogether different problem, 17 overlooked in the epistemic musings of Sandel, that undermines the explanatory power of ethical disagreement as a circumstance of justice and with it the persuasiveness of the standard account as developed by Rawls. In contrast to the standard account, what we may call the epistemic approach to the circumstances of justice that Caney’s observation anticipates is not concerned with the implications our ethical lives may have for how the subjective circumstance should be understood. It is concerned, rather, with the implications of the subjectivity of human knowledge and of social complexity. A useful starting point to build upon Caney’s observation and construct an alternative account of the circumstances of justice is the thought of one of the best known defenders of the epistemic variety of liberalism, Friedrich Hayek. Of course, despite being familiar with the work of both Hume and Rawls, Hayek never wrote about the circumstances of justice. Indeed, whilst certainly familiar with Hume’s discussion, he never used the term in his written work (Hayek, 1976a: 112–113, 1967b: 350). Nevertheless, Hayek’s approach gains entry into our discussion via his core insight that the knowledge of the circumstances relevant to the direction of cooperative efforts, including the division of its fruits - that is, the knowledge of the diversity of human needs and wants, their relative value and the most appropriate means of satisfying them - is never given in its entirety to any single individual. The first reason Hayek gives for this is because it is knowledge that is subjectively held by different people acting under different circumstances. We can imagine a state of affairs, for instance where Paul believes, as he has always done, that desired good x is best made with resource p, whilst his friend Peter has recently discovered that resource q is far better for this purpose. In contrast to both of them, however, Peter’s neighbours Penny and Patricia believe that resources shouldn’t be used for making something as devoid of value as x, but should be employed instead to satisfy the far more pressing need for good y. Precisely, then, because deciding what is of value and of how what is of value should be produced is dependent upon the beliefs of different individuals, for Hayek the question of how cooperative efforts are to be directed cannot be assumed to be resolvable upon the basis of objectively-given knowledge. 18 Hayek’s claim about the subjectivity of knowledge gains its full significance, however, when we recall the distinction between face-to-face and complex social relations from our discussion of Sandel. Under face-to-face conditions the subjectivity of knowledge presents no real problem for successful social cooperation, for each either already knows, or can without great cost come to know, the needs and wants of all the rest, how best to satisfy them and of how to act accordingly (Tebble, 2016: 28–29). For epistemic liberals, however, matters are quite different when we participate in cooperative schemes that extend beyond the ken of face-to-face social formations. In such complex societies the knowledge relevant to successful social cooperation is not only the subjectively held knowledge of different individuals, but the subjectively held knowledge of different individuals who, in the overwhelming majority of cases, are not in direct contact with one another, with the consequence that it is never given in the way that would make social cooperation as relatively costless as it is in face-to-face settings. To be sure, there is a sense in which this knowledge can be said to be given, as it is after all contained within society when viewed as a single collectivity. The important point, however, is that its dispersal among what we may call mutually ignorant individuals means that each has access to a different part of the sum, and therefore does not know what all the rest know, even though this would be relevant to ensuring that cooperative efforts are directed successfully (Tebble, 2016: 30–32). It is not only spatial distancing that accounts for the cognitive separateness and epistemic deficit prevalent in modern societies or, what theorists working in the epistemic tradition of liberalism call society’s knowledge problem. The question is not just that of who is in possession of the knowledge relevant to successful social cooperation, or of the distance between them, but also of the kind of knowledge this knowledge is that is decisive. Thus, related to its dispersal, and again showing why it defies centralization, are the facts that as subjective knowledge this knowledge is often circumstantial and fleeting. Unlike our scientific knowledge, for example, this knowledge is knowledge of specific circumstances that may only be of temporary duration, but which are nonetheless relevant to our decisions. Fourth, and perhaps most significantly for Hayek (1948a, 1948b, the subjectively-held knowledge of mutually-ignorant individuals is also often tacit in nature, 19 embodied in different traditions and practices whose action-guiding significance to the decisions of others is only ever communicated when acted upon by those who possess it. That is, it is knowledge that its possessors do not realize that they have, let alone that somebody else may know they have and could therefore make use of independently of them. Finally, recent work in the epistemic liberal tradition has shown how the knowledge problem is also significant because the circumstances to which agents must respond if their plans are to be successful are a continually changing result of their own past decisions and those of their fellows. In this connection we may note the contribution of complex adaptive systems theory and conceive the economy of a modern society as a complex adaptive system (Tebble, 2016:31-33). Of particular significance in this respect are two features that complex adaptive systems manifest. First, and as the above suggests, in contrast to complex physical systems that also display hallmark features of complexity such as self-organisation or, following Hayek, spontaneous order, complex adaptive systems are affected by the intentional agency of the elements that feature in them.xi Moreover, and related to this, complex adaptive systems are characterised by the phenomenon called parallel processing where individual agents respond to their circumstances simultaneously, although unbeknownst to one another. The result of these behaviours is that the overall economic context to which agents respond and with regard to which they must make decisions, in turn becomes the future context which they have helped to shape precisely as a result of their prior adaptive responses. In the complex economic adaptive order of a large-scale society, therefore, and regardless of whether one’s primary interests are one’s own or those of others, the circumstances that each must take into account in order to satisfy them are in a constant state of effervescent change brought about by the mutually affecting simultaneous adaptive responses of each to the activities of all the rest. It is not the case, therefore, that the knowledge problem is a one-off coordination problem that, at some point and with the requisite will and effort, may be solved. Rather, precisely because mutually ignorant agents simultaneously impact upon one another’s circumstances, and with this the chances of their respective plans being successful, the knowledge problem and associated need for mutual coordination are not 20 only ever-present with respect to a continually changing environment, but indeed intensify as the cooperative space expands to include more and more mutually impacting agents. The knowledge problem as a circumstance of justice These insights amount to an epistemic liberal variant of Sandel’s notion of the cognitive separateness of persons. Agents engaged in social cooperation are opaque to one another not only for the reasons that Sandel suggests are implicit in Rawls’s account, but because of the insuperable spatio-temporal distancing that exists between them. Thus, in addition to the inscrutability of the human soul, cognitive separateness and its attendant epistemic deficit arise from social complexity and it is in this sense that we are physically, and not only spiritually or ethically, distant from one another. Moreover, and again in contrast to the concerns of Sandel, it is the epistemic deficit manifested in society’s knowledge problem that assumes central importance with regard to the circumstances of justice. Similarly to the counterfactual reasoning that we have seen Hume and Rawls engage in with respect to the establishment of moderate scarcity, confined generosity and ethical disagreement, we may adopt a similar approach to establish the significance of the knowledge problem. In circumstances of what we may call aggravated solipsism - where each only ever has knowledge of their own needs and where knowledge of the preferences of others and the means to satisfy them is permanently absent - knowledge coordinating rules of justice would be impossible because coordination itself would be impossible. Similarly, were we to find ourselves bestowed with the power of omniscience, the rules of justice that enable the selfish, the moderately selfish and the wholly beneficent to coordinate their activities would, like coordination itself, be unnecessary. ‘[I]n a society of omniscient persons,’ Hayek (1982:II.39) claims, ‘there would be no room for a conception of justice: every action would have to be judged as a means to bringing about known effects, and omniscience would presumably include knowledge of the relative importance of the different effects.’ Most significantly, it is in this connection that we may claim that the knowledge problem deals a fatal blow to the explanatory potency of the two principal contributions to the standard account. Of course, in making such a claim it is important not to misrepresent Hume, for we have 21 seen that it is open to question whether he conceives of the purpose of his contribution in the way that Rawls and subsequent writers on the standard account think. It may well be the case, therefore, that we ought not resort to the notion of confined generosity to explain how the terms of social cooperation both can and need to be just, but this is not something that Hume is concerned to do in the first place. Yet, even if we accept that his purposes are quite different to Rawls’s, and in so doing go so far as to eschew all notion of there being a unified standard account, there is still an important epistemic case to be made against Hume’s view on its own terms. The origin of rules of justice requiring respect for property rights and the keeping of promises, that is, is not explained by the steady growth of small-scale societies gradually undermining the natural bonds of sympathy that would otherwise obviate the need for them, as Hume seeks to show in the Treatise (Clayton Hubin, 1979:4-5). Rather, our revision of the circumstances of justice explains the origin of such rules on the epistemic grounds that, without them, the gradual expansion of the terms of social cooperation would render the communication to each of the consequences of the actions of all the rest - so that evermore disparate plans may be realised in conformity with otherwise unknowable underlying conditions - increasingly fraught. Similarly, with respect to the virtue of our obeying rules of justice, even if there were complete altruism rather than confined generosity the knowledge problem would nevertheless necessitate just behaviour so that uncentralisable but nonetheless relevant knowledge of ever- changing resource needs and availabilities could be coordinated under complex conditions. It is not, therefore, as Hume seeks to show in the Enquiry, that without an account of moderate scarcity and confined generosity it would not be possible to explain why, despite being artificial, the virtue justice is nonetheless obligatory (Clayton Hubin, 1979:5). Rather, and regardless of whether we imagine ourselves to be wholly or partially beneficent, in Humean large societies that extend beyond the ken of the face-to-face group - where each knows of the needs of all the rest and of the appropriate means to satisfy them - we are obliged to act justly because we are never in a position to know all that we would need to know in order to attend adequately not only to our own needs, but to those of our overwhelmingly unseen fellows. Thus, as Harrison (1981:266) makes clear, even in a society where 22 everybody had ‘tenderness for every man’ there would still be a need for rules of justice (including rules governing exchange) and the need to clearly delineate proprietary boundaries to prevent ‘disorganisation’. ‘It follows,’ he (1981:266) concludes, ‘that Hume is mistaken when he remarks that if benevolence were strong enough to be a motive to obey rules of justice, such rules would be unnecessary.’ Indeed, as Hayek (1982:II.83) claims in his discussion of justice, under complex circumstances there is still ‘no possibility for the individual to know what he would have to do to secure a just remuneration of his fellows’, even if he were morally motivated to do so. In addition to the doubt cast upon Hume’s explanation, our epistemic revision of the standard account shows the weaknesses of Rawls’s account with regard to the justice of schemes of social cooperation. Even if there were Rawlsian unanimity about ends, the knowledge problem would nevertheless reveal the necessity of just schemes of social cooperation. ‘All the possible differences in men's moral attitudes amount to little,’ Hayek (1948c:14) writes, so far as their significance for social organization is concerned, compared with the fact that all man's mind can effectively comprehend are the facts of the narrow circle of which he is the center; that, whether he is completely selfish or the most perfect altruist, the human needs for which he can effectively care are an almost negligible fraction of the needs of all members of society. Even if we were to agree upon ends, therefore, we would still be faced with the problem of not knowing all that we would need to know in order to ensure that the decisions of each dovetailed with those of all the rest so as to make their realisation likely. Even if it obviates the need to include moderate scarcity and confined generosity in the standard account, then, ethical disagreement is not as decisive a circumstance of justice as the knowledge problem. It is not only, therefore, that were everybody to have ‘tenderness for every man’ there would still be a need for rules of justice so as to prevent disorganisation (Harrison, 1981:266). ‘[T]he possibility of justice,’ Hayek (1982:I.13) concludes, ‘rests on [the] necessary limitation of our factual knowledge, and that insight into the 23 nature of justice is therefore denied to all those constructivists who habitually argue on the assumption of omniscience.’ It is, then, the objective fact of our permanently limited knowledge - whereby each of us is only ever in possession of but a tiny fraction of all the knowledge necessary for rational economic decisions to be made - rather than the (moderate) scarcity of resources, our reluctance to agree, or the truncated nature of our affections that explains our need for justice. To be sure, the point at issue in this regard is not to be found in any divergence with either Hume or Rawls’s respective characterisations of the hearts of men. Rather, it is the fact that, unlike either limited beneficence or disagreement, the circumstance that explains the possibility and necessity of justice is objective. Regardless of whether we imagine ourselves to be wholly or only partially beneficent, or in agreement about ends or not, the facts of the subjectivity of knowledge and of social complexity mean that, in either case, we would still not be in any position to know all that we would need to know in order to attend to the needs of our overwhelmingly unseen fellows in complex societies. Rather than drawing philosophical attention to the need for setting the just terms of social cooperation, therefore, the knowledge problem highlights the need for setting the just terms of social coordination. 5. Objections Rawls, knowledge and reasonable disagreement There are at least two objections that those keen to defend Rawls may raise at this point. The first is that, regardless of what it may tell us about the standing of disagreement, the epistemic account tells us nothing new. After all Rawls (1999a:110) does mention that, along with other shortcomings of ‘knowledge, thought and judgment’ the subjective circumstances of justice are characterised by the ‘incompleteness’ of our knowledge. Yet, given that we have argued that the knowledge problem with which epistemic liberals are concerned is an objective rather than subjective circumstance, it seems that the likelihood of Rawls meaning this in the same sense epistemic liberals do is remote to say the least. Moreover, and regardless of whether it is the same as the problem identified by epistemic liberals, it is also clear that for Rawls the incompleteness of knowledge is relevant only insofar as it 24 helps to explain what is for him the more important point of our ethical disagreement. ‘Some of these defects,’ he (1999a:110) writes, ‘spring from moral faults, from selfishness and negligence; but to a large degree, they are simply a part of man’s natural situation’. We do not need to deny the veracity of this claim about our natural situation, however, in order to sustain the argument about the knowledge problem as the primary circumstance of justice. If our claim about the knowledge relevant to successful social cooperation is of greater significance than the truncated nature of human affection or our propensity to disagree about the ends of life is true then the question of whether the incompleteness of knowledge is also rooted in humanity’s fallen moral standing is moot. Another important objection to the argument set out here is that it rests upon a mischaracterization of Rawls’s position. Particularly when discussing public reason and the burdens of judgment in later work, Rawls (1993[2005]:54-8, 66, 217, (2001[2003]:35-6, 83) is after all concerned to emphasize not disagreement but reasonable disagreement about justice. Here, and regardless of how impartial or altruistic people may be, they will continue to disagree in their religious, philosophical and moral judgments. Disagreements in these matters are therefore inevitable even among rational and reasonable people and this is known by the parties in the Original Position. It is because of this, moreover, that we are expected to forsake appeals to religious and other claims over which reasonable persons can be assumed to disagree when considering the requirements of justice, and instead appeal only to ideas that are held to be part of a liberal democratic political culture and as such may be assumed to be acceptable to all as both reasonable and rational (Rawls, 1993[2005]:217. Rawls’s notion of reasonable disagreement has of course attracted much critical attention in the literature and space will not permit us to enter into its merits here.xii What is significant for the assessment of the persuasiveness of our argument, however, is the place that reasonable disagreement occupies on the spectrum of possible positions that one may adopt regarding the subjective circumstance of justice. We will recall that the discussion thus far has been conducted within the context of an assessment of how differing degrees of disagreement impact upon the possibility and necessity of justice. Here we have claimed, with Rawls, that intractable disagreement renders justice impossible but that, as we have just seen and following Cohen, unanimity fails to make 25 justice unnecessary. Importantly, however, accepting this also shows why reasonable disagreement does not undermine the force of the epistemic argument. Precisely, because reasonable disagreement occupies a position somewhere between disagreement and unanimity - it is a stronger assumption than mere disagreement, but a weaker one than unanimity - it provides no reason to withdraw the claim about the significance of the knowledge problem for the second circumstance of justice. If it is accepted that reasonable agreement is merely a qualified form of ethical unanimity, and that unanimity does not undermine our claim about the knowledge problem, then reasonable disagreement is no more a circumstance of justice than its stronger, unqualified, relative. Cohen, ideology and the nature of justice In contrast to those above that defenders of Rawls may seek to raise, Cohen’s discussion leads to an altogether different and broader objection to the standard account of which the epistemic revision defended here is one version. Here the focus is not upon the alleged failure of the circumstances of justice to adequately ground justice but, as was mentioned in passing in section 3, upon the question of what justice is. That is, for Cohen the question of the circumstances that make justice both possible and necessary is entirely different to the question of what justice is. It is the elision of these two questions in discussion of the circumstances of justice, however, that in his view reveals the standard account to be ideologically loaded, insofar as it serves to obscure liberalism’s unadmitted individualist and capitalist commitments (Cohen, 2008:331). Hume’s discussion, Cohen explains, assumes a pre- given substantive account of justice itself as the artificial virtue of observing rules of property and of promising. But this is to put the matter back to front, for all that the circumstances tell us is that this kind of justice is either impossible or unnecessary under conditions of aggravated scarcity and extreme selfishness or material abundance and extreme beneficence respectively. Cohen makes his point via an analogy with the notion of craftsmanship. In order to know in which circumstances craftsmanship would be possible, he explains, we would first need to know what constituted craftsmanship. Cohen’s answer to this is that craftsmanship would be possible under conditions of limited abundance and limited talent. ‘But all of that’, he (2008:332) tells us, ‘follows from what 26 craftsmanship is and has no bearing on what it is.’ On this reading, therefore, the standard account of the circumstances of justice is more honestly described as the liberal account.xiii Beyond what it may tell us about t Hume’s account, much of the persuasiveness of Cohen’s argument depends upon how strongly we interpret the first part of his phrase ‘no bearing’. That the circumstances of justice have no bearing whatsoever upon the question of justice is an overstatement and, regardless of the unadmitted ethical commitments of Hume and Rawls, the epistemic view can give us some guidance as to why this is so. Firstly, the fact that no individual is in a position to authoritatively claim what an optimal outcome for society ought to be nor, even if this were known, what its achievement would practically require, suggests that justice must be concerned with offering an account of how the knowledge relevant to deciding these questions may be communicated across society. That is, justice must secure not a predetermined division of the fruits of social cooperation, but rather a procedure for the ongoing determination, under irrevocable conditions of moderate scarcity and the knowledge problem, of what that division should be. Against this view Cohen could claim that, similarly to the problem of defining what justice is in advance, the epistemic approach also fails because it too relies upon a controversial ethical assumption from the outset. That is, it is only because epistemic liberals already believe that private interests ought to be pursued that the knowledge problem, and the need to coordinate in spite of it, can be posited as significant. Such a response, however, is inadequate. As our discussion of face-to-face and complex coordination in the previous section suggested, even the successful pursuit of collective rather than private interests in a complex society would be confronted with the knowledge problem, because it would still be unclear what each would need to do, from within the confines of circumstances known only to them, to coordinate activities so that those interests could be satisfied (Tebble, 2016:28-33). The significance of the knowledge problem as a circumstance of justice and the consequent need for a procedural account of justice therefore, are not premised upon an unadmitted, undefended ethical individualism. They are premised upon the knowledge coordination problem presented by the subjectivity of knowledge and of social scale. Importantly, and to press the counter-objection still further, if this much is granted the epistemic account offers even more than the minimal guidance 27 above, for it not only suggests an account of procedural justice, but of pure procedural justice in the sense specified by Rawls. Here, and unlike a perfect conception such as the equal division of a cake guaranteed by the awarding of the allocational task to a person who may eat only the last portion, or an imperfect conception (such as a trial that seeks to discover criminal culpability), there is no external criterion for what constitutes a just outcome, other than conformity with the procedure itself (Rawls, 1999a:73-78). Moreover, we may also be more specific than Cohen suggests with regard, if not to the question of whether the circumstances of justice aid us in identifying what procedures are appropriate, then at least with regard to which are not. Minimally, and if the epistemic circumstances of justice are taken seriously, tyranny and oligarchy do not look promising as procedures for making just decisions about the fruits of social cooperation on account of their assuming that the all knowledge relevant to doing so is accessible to either one or a few. In fact, however, our revision of the standard account is able to provide more than negative guidance, for there is good reason to believe that democratic theory may provide a plausible candidate theory of pure procedural justice in addition to the market proceduralism that epistemic liberals may favour.xiv 6. Conclusion An epistemic reading of the circumstances of justice makes clear the shortcomings of the standard account. First, with respect to Hume’s contribution, the epistemic reading has shown that it is not our limited beneficence that, along with moderate scarcity, explains either the origin of rules of justice or the virtue of obeying them. Indeed, to the extent that it suggests we disagree with Hume in this regard, the epistemic reading of the circumstances of justice concurs with Rawls that it is ethical disagreement that does more powerful explanatory work in this respect. Importantly, however, we have concurred with Cohen that the more important place that Rawslian disagreement occupies in the explanatory order also obviates the need to include moderate scarcity, as both Hume and Rawls do. Most significantly, however, and beyond any claims we may wish to make about the standing of moderate scarcity and confined generosity as circumstances of justice, our epistemic reading also shows that, contra Rawls, the fact of our propensity to disagree about the ends of life, reasonably or 28 otherwise, does not explain why justice is both possible and necessary. Rather, it is the knowledge problem resultant form the fact of the subjectivity of human knowledge and of modern complex conditions found in what Hume calls large societies that explains this need. Even if we were entirely altruistic and in unanimous agreement about what to with the fruits of social cooperation, we would still need rules of justice to offer us a means of making adequate decisions in this respect. Finally, it has been claimed that the epistemic revision of the standard account not only tells us why justice is both possible and necessary. Contra Cohen, it offers at least some guidance as to what justice is, to the extent that different candidate conceptions make the coordination of otherwise inaccessible knowledge in large societies possible. There are, of course, many such conceptions that could qualify as plausible theories of justice in this regard. Which is most suitable, and whether the epistemic circumstances of justice may tell us why, however, are questions which we must leave for another occasion. 29 Bibliography Aquinas (2014) Summa Theologiae. Oxford: Oxford University Press Badhwar NK (1993) The Circumstances of Justice: Pluralism, Community, and Friendship. Journal of Political Philosophy 1(3): 250-276 Broad CD (1930) Five Types of Ethical Theory. Oxford: Clarendon Press Caney S (1991) Sandel’s Critique of the Primacy of Justice: A Liberal Rejoinder. British Journal of Political Science 21(4): 511-521 Clayton Hubin D (1979) The Scope of Justice. Philosophy and Public Affairs 9: 3-24 Cohen GA (2008) Rescuing justice and equality. Harvard, Ma.: Harvard University Press Harrison J (1981) Hume’s Theory of Justice. Oxford: Clarendon Press Hart HLA (1994) The Concept of Law (2nd ed.). Oxford: Oxford University Press Hayek FA (1948a) Economics and Knowledge. In: Hayek FA Individualism and Economic Order, Chicago: University of Chicago Press, pp. 33-56 Hayek FA(1948b) The Use of Knowledge in Society. In: Hayek FA Individualism and Economic Order, pp. 77-91 Hayek FA (1948c) Individualism: true and false. In: Hayek, F. A., Individualism and Economic Order, pp. 1-32 Hayek FA (1960) The Constitution of Liberty. London: Routledge and Kegan Paul Hayek FA (1967a) The Legal and Political Philosophy of David Hume. In: Hayek, F. A. Studies in Philosophy, Politics and Economics. London: Routledge and Kegan Paul, pp. 106-121 Hayek FA (1967b) Freedom and coercion: some comments on a critique by Mr. Ronald Hamowy. In: Hayek FA Studies in Philosophy, Politics and Economics. London: Routledge and Kegan Paul, pp. pp. 348-350 Hayek FA (1982) Law, Legislation and Liberty. 3 vols. London: Routledge Hope S (2010) ‘The Circumstances of Justice’. Hume Studies 36(2): 125-148 Hume D (1740[1978]) A Treatise of Human Nature. Oxford; Oxford University Press 30 Hume D (1751[1995]) An Enquiry Concerning the Principles of Morals. Oxford: Oxford University Press Landemore H (2012) Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many. Princeton: Princeton University Press Lister A (2005) Hume and Rawls on the Circumstances and Priority of Justice. History of Political Thought 26(4): 664-695 Lucas J (1989) On Justice. Oxford: Clarendon Press Okin SM (1989) Justice, Gender and the Family. New York: Basic Books Parfit D (1986) Reasons and Persons. Oxford: Oxford University Press Rawls J (1999a) A Theory of Justice (revised ed). Cambridge: Harvard University Press Rawls J (1999b) Justice as fairness. In: Rawls J Collected Papers. Harvard, Ma.: Harvard University Press, pp. 47-72 Rawls J (1999c) Justice as reciprocity. In: Rawls J Collected Papers. Harvard, Ma.: Harvard University Press, pp. 190-224 Rawls J (1999d) Reply to Alexander and Musgrave. In: Rawls J Collected Papers, Harvard, Ma.: Harvard University Press, pp. 232-253 Rawls J (1999e) A Kantian conception of equality. In: Rawls J Collected Papers. Harvard, Ma.: Harvard University Press, pp. 254-266 Rawls J (1999f) Kantian constructivism in moral theory. In: Rawls J Collected Papers. Harvard, Ma.: Harvard University Press, pp. 303-58 Rawls J (2001[2003]) Justice as Fairness: a restatement. Harvard, Belknap Press Rawls J (1993[2005]) Political Liberalism. New York: Columbia University Press Sandel M (1982) Liberalism and the Limits of Justice. Oxford: Oxford University Press Schwartz Porzecanski D (2004) Friendship and the Circumstances of Justice according to Aquinas, The Review of Politics 66(1): 35-54 Schwartz Porzecanski D (2007) Aquinas on friendship. Oxford: Oxford University Press 31 Sobel C (1972) The need for coercion. In: Pennock, J. and Chapman, J. (eds) NOMOS, vol. xiv: Coercion, Chicago, Atherton Press, pp. 148-177 Tebble, A. J., Epistemic liberalism: a defence, London, Routledge, 2016 Vanderschraaf, P. (2006) The circumstances of justice. Politics, Philosophy & Economics 5(3): 321- 351 Waldon, J., (1999) Law and Disagreement. Oxford: Oxford University Press i I would like to thank Robin Douglass and the two anonymous reviewers at EJPT for their extremely helpful comments on earlier drafts of this paper. ii H. L. A. Hart’s account of the five ‘elementary truths concerning human beings, their natural environment and aims’ that provide the basis of the ‘minimum content of natural law’(1994:1293), it has been claimed, bears much resemblance to the standard account. iii A third condition that Hume sets out - although it is not one that all commentators think is essential to his account - is that of our rough equality of moral powers. On this see Hume (1995:§152). iv See also Hope (2010:128-330) and Vanderschraaf (2006:329-30) who highlight the limited property rights and promise-keeping scope of Hume’s account. v For a discussion of this distinction insofar as it relates to Sandel’s critique of Rawls’ account of the circumstances of justice, see Caney (1991:515-16). vi Similarly, and along with a few other objective conditions, Rawls also follows Hume in claiming that we are roughly similar in our physical and mental powers. vii See also Badhwar (1993:7). viii On the relationship between Rawls and Hume on the circumstances of justice, see Lister (2005:664-695). ix With respect to Hume we may note the discussions of Broad and Vanderschraaf. Broad (2009:94-9) is concerned with his objection to Hume’s wider moral theory and not to the cogency of his account of the circumstances of justice per se. Arguing from a game theoretic perspective, Vanderschraaf (2006) claims that Hume’s three conditions are neither necessary nor sufficient for justice because moderate scarcity, confined generosity and rough equality of human powers also obtain in Hobbes’ state of nature where, crucially, there is no justice. 32 x On altruists’ dilemmas see Lucas (1989:49-50); Parfit (1986); Sobel (1972:148-177). xi For a discussion of complex systems in nature see Hayek (1982:I, 39-40). xii For an insightful discussion see Waldron (1999), chapter 7. xiii But see Hope (2010) who defends Hume against Cohen’s critique by distinguishing between the circumstances and the criteria of justice. xiv Hélène Landemore’s defence of democratic rule on epistemic grounds being the most recent example. On this see Landemore (2012). Badhwar NK (1993) The Circumstances of Justice: Pluralism, Community, and Friendship. Journal of Political Philosophy 1(3): 250-276 
work_7izrekubs5agxbhvyw7m6cxabe	----	PII: S0022-5223(99)70414-9 For physicians, medical malpractice also means they must maintain costly liability insurance that is out of proportion to that of any other profession. This egre- gious expense is primarily needed to protect against unjustified claims resulting from recognized complica- tions of treating difficult illnesses. The root of the prob- lem is the legal morass that includes an overabundance of attorneys looking for any opportunity to make a buck and an out-of-control civil justice system that allows the pursuit of unmerited allegations. The pinnacle of the absurd is reached if a case ends up in civil court. Here, juries who are not prepared to make judgments about scientifically and technically complex issues are sub- jected to days of theater in which the attorney with the best acting skills is likely to prevail. This occasionally culminates in an overinflated multi-million dollar award, much of which is granted for noneconomic loss- es such as pain, suffering, and loss of consortium. Finally, defensive medicine, a by-product of the threat of malpractice liability, wastes valuable resources to ensure one’s backside is covered. The cost of this prac- tice may be substantial. Patients’ perspective. Patients’ views of the medical liability system differ considerably from those of the physician. What if a patient is injured while undergoing medical treatment and the injury was the result of a mis- take? In such a case, a malpractice claim may be the only way the patient can recoup damages for the injury. I t would be difficult to find anyone who is satisfiedwith the current system of resolving medical liability disputes. In approaching this subject, I have first tried to look at the issues from the perspective of each of the major constituents. Perspectives on medical liability Physicians’ perspective. Physicians take an allegation of malpractice as a personal affront to their profession- alism. It is an attack on their character and dedication, as well as their skill. A claim becomes an emotionally exhausting event for many doctors, and they may end up obsessed with defending their honor. At the extreme, competent doctors have decided to “hang it up” rather than continue their practice in an environment that would allow such an unfair event to occur. 211 From the Department of Cardiothoracic Surgery, University of Southern California School of Medicine, Los Angeles, Calif. Read at the Twenty-fourth Annual Meeting of The Western Thoracic Surgical Association, Whistler, British Columbia, June 24-27, 1998. Received for publication Oct 12, 1998; accepted for publication Oct 13, 1998. Address for reprints: Winfield J. Wells, MD, Department of Cardio- thoracic Surgery, Childrens Hospital Los Angeles, 4650 Sunset Blvd, MS 66, Los Angeles, CA 90027. J Thorac Cardiovasc Surg 1999;117:211-9 Copyright © 1999 by Mosby, Inc. 0022-5223/99 $8.00 + 0 12/6/95153 The Journal of THORACIC AND CARDIOVASCULAR SURGERY PRESIDENTIAL ADDRESS AND JUSTICE FOR WHOM? Winfield J. Wells, MD Volume 117 Number 2 February 1999 Funds may be needed to aid in the patient’s recovery or, in the case of a permanent disability, for long-term care. There is also the issue of lost earnings. Most patients who file a malpractice claim are angry and want to see their doctors punished for the uncaring, incompetent, and potentially dangerous individuals that they are. By suing, they may prevent the same thing from happening to others. The system is a way of getting bad doctors out in the open to be judged and “found out.” While not an enjoyable process, somebody has to do it because the medical profession does a very poor job of policing itself. There is a widely held perception that physicians will not say anything negative about other physicians, particularly if there are potential liability issues involved. This “code of silence” necessitates the need for clever attorneys who can find the truth. The legal perspective. Attorneys and the civil justice system look at medical malpractice in the same way they do any other situation in which a person is injured. That person may be entitled to damages. Why should the health care system be treated differently from oth- ers? Society had established rules and a method for deciding whether there is fault and how much payment should be made if a person is injured as a result of neg- ligence. The civil justice system may be imperfect, but no one has put forward an alternative that “the people” believe would be more fair. The legal perspective might also propose that the malpractice system helps to curtail bad care by high- lighting incompetence. The threat of liability helps keep physicians and the system on its toes, and danger- ous practice is quickly corrected. Attorneys could point out that contrary to what physi- cians and the health care industry might lead the public to believe, the number of malpractice claims is not exces- sive. In fact, many more people are entitled to compensa- tion than ever receive it. The primary platform for this argument comes from two widely quoted reports from the Harvard School of Public Health1,2 that looked at malpractice claims and adverse events due to negligence. These retrospective reviews of randomly selected records of hospitalized patients from the state of New York ini- tially screened more than 30,000 charts, and nearly 8000 were referred to a physician panel for review. From these charts 1100 adverse events were identified. These repre- sented injuries resulting from the patient’s medical care rather than from the primary illness. Among these adverse events, 280 were deemed to be due to negligence. By extrapolation, the authors concluded that about 1% of hospitalized patients had an adverse event resulting from negligence. During the same time period, the number of claims generated per hospital discharge was calculated to be 0.13%. Among the 280 study cases in which negli- gence was suspected, only 8 claims were actually filed (2.8% of potential claims). Not surprisingly, the authors of this study concluded that medical malpractice litiga- tion infrequently compensated patients injured by negli- gence and rarely identified and held providers account- able for substandard care. Overview of medical malpractice involving cardiothoracic surgeons Little information exists on the number of malprac- tice claims filed against cardiothoracic surgeons, the nature and outcome of such cases, and the costs involved. While I was serving as chair of medical-legal affairs for The Society of Thoracic Surgeons (STS), our committee established a relationship with the Physician Insurers Association of America (PIAA). PIAA is a trade association of physician-owned and -operated medical malpractice insurance companies that has been collecting data on malpractice claims since 1985. The PIAA membership includes more than 60 carriers rep- resenting about 240,000 private practicing physicians in the United States and almost 500,000 practitioners abroad. There are currently more than 140,000 closed claims from the United States in the ongoing database, of which 3800 are attributed to cardiothoracic sur- geons. The analysis described in this section comes from a review of these 3800 cases. The PIAA research department estimates that the data-sharing project cap- tures approximately 25% of the claims against privately practicing physicians in the United States. Malpractice claims against cardiothoracic sur- geons. Cardiothoracic surgeons account for about 3% of the malpractice claims in the PIAA closed case file. They are responsible for a relatively smaller percent- age, 2.2%, of all indemnity payments. 212 Wells The Journal of Thoracic and Cardiovascular Surgery February 1999 Fig 1. Natural history of malpractice claims against cardio- thoracic surgeons, based on approximately 3800 closed claims in the PIAA database (1985-1997). Natural history of malpractice claims against car- diothoracic surgeons. The outcome of the 3800 closed claims against cardiothoracic surgeons documented in the PIAA database between 1985 and 1997 has been reviewed. For the purposes of this analysis, there are three potential outcomes: (1) A claim is abandoned, withdrawn, or dismissed (subsequently to be labeled as dismissed); (2) the claim is settled before a verdict at trial; or (3) the claim is resolved by a jury verdict. A few cases were resolved by arbitration, but the numbers were too small for a meaningful analysis. Using the three criteria for outcome, 70% of the claims analyzed were dismissed, 23% were settled, and only 7% were resolved by a verdict at trial (Fig 1). Further, the percentage of claims that were resolved with compensation to the plaintiff over the period 1985-1997 showed no significant trend in either direc- tion over time, with approximately 25% requiring pay- ment. This outcome is similar to the results for the overall universe of all subspecialties covered by the PIAA data wherein 68% of claims are dismissed. Expenditures associated with various outcomes of claims against cardiothoracic surgeons. In general, the expenditures related to a claim have been separated into the dollars spent on managing the defense (ie, attorneys’ fees, fees for expert reviews, fees for deposi- tions) and, if applicable, the dollars paid in indemnity. The expenditures for each of the three potential out- comes have been separately studied, and the trend in costs over a 10-year time period comparing the years The Journal of Thoracic and Cardiovascular Surgery Volume 117, Number 2 Wells 213 Fig 2. Claims that are withdrawn or dismissed (70% of all cases). Average and median expense for defense (in 1998 dollars). Fig 3. Claims that are settled (23% of all cases). Total costs: expense for defense plus indemnity (all in 1998 dollars). 1985-1987 to the years 1995-1997 have been calculat- ed. All expenditures have been converted to 1998 dol- lars by means of a coefficient based on the rate of infla- tion as measured by the Consumers Price Index. Expenditures for claims that are dismissed (Fig 2). Although 70% of claims filed against cardiothoracic surgeons are eventually abandoned, withdrawn, or dis- missed, there are still significant expenses incurred for defense. Among 644 claims that were dismissed in the time period 1995-1997, the average cost per claim was $10,664 and the median cost was $3733. Among 544 claims from 1985-1987, the average was $5860 and the median $2394. All costs have been converted to 1998 dollars. Thus, over a 10-year time period, the average cost to defend a claim that is eventually dismissed has risen 82% and the median cost, 56%. These figures do not account for the substantial time that the accused surgeon often spends on his or her own defense. Expenditures for claims that are settled without a jury verdict (Fig 3). For cases that are settled there are two sources of cost: the expense of defending the claim and the indemnity payment for damages. Although the indemnity portion makes up 85% of the total expendi- ture, the cost of defense for these claims is much high- er than for claims that are dismissed. Among 181 claims that were settled in the period 1995-1997, the average defense cost was $31,742 and the median was $19,081. The total cost of these claims was much higher, with the average among the 181 cases being $242,790, while the median was $119,970. The difference between the aver- age and median costs suggests a skew toward several claims with very high indemnity payments. 214 Wells The Journal of Thoracic and Cardiovascular Surgery February 1999 Fig 4. A comparison of expense for defense between cases that are dismissed, settled, or tried. Average and medi- an for 1995-1997 (all in 1998 dollars). Fig 5. Indemnity payments. Cases settled versus plaintiff verdict (all in 1998 dollars). When these 1995-1997 figures are compared with the costs from 206 cases settled between 1985-1987, a sig- nificant increase in cost is apparent (even after account- ing for inflation). Average costs increased 42% overall, with average defense expenses going up 98% and aver- age indemnity payments increasing 38%. The same analysis for median costs showed an 81% increase overall and 70% and 83% rises for defense and indem- nity payments, respectively. Expenditures for claims that result in a jury ver- dict. This analysis has two arms with one related to cases in which there is a verdict for the defense and the other, those in which the plaintiff prevails. Among the 264 cases resolved at trial between 1985 and 1997, 86% resulted in a defense verdict and in 14% the plain- tiff was awarded damages. As might be expected, the cost of defending a claim that goes to trial is consider- ably higher than for cases that are settled. The average is about twice as much and the median about three times the cost. Whether the case is defended or lost at trial, the cost for the defense is about the same. The average and median costs for defense for claims that are dismissed, settled, and resolved at trial in the peri- od 1995-1997 are compared in Fig 4. The high costs of trial suggest the reason that insurance companies are often anxious to settle claims quickly for a figure that approaches the “cost of defense.” This may be the case even if there is no evidence of practice that is below the standard. Although convenient and seemingly good business practice for the carrier, such settlements may encourage plaintiff’s attorneys to pursue cases involv- ing a maloccurrence, even if no negligence is apparent, in hopes of a quick pay day. Insurance companies con- front a major dilemma in positioning themselves with such “nuisance suits,” and some have elected to defend when expert review suggests no breach of the standard The Journal of Thoracic and Cardiovascular Surgery Volume 117, Number 2 Wells 215 Fig 6. Conditions leading to claims against cardiothoracic surgeons with the percentage of each category where indemnity was paid, and the average payment in dollars. CAD, Coronary artery disease. Fig 7. WTSA malpractice survey: type of coverage. Table I. Claims involving cardiothoracic surgeons by misadventure (1985-1997) Misadventure Percent paid Average (n = 3560) Percent to close indemnity Improper performance 36 28 $174,571 No misadventure 25 6 $197,458 Error in diagnosis 11 27 $161,073 Failure to monitor care 7 30 $181,869 Foreign body 5 45 $30,294 Not indicated 4 31 $164,596 Failure to diagnose 4 28 $182,309 complications Delay in performance 3 32 $212,209 Not performed 3 35 $183,090 Medication error 2 37 $267,612 of care. Although initially more costly, this strategy may be more cost effective in the long run. Finally, there is the matter of indemnity payments for cases that result in a jury verdict for the plaintiff. The number of cases available for analysis is relatively small (n = 37) and the range of awards is large, making it dif- ficult to assess whether there has been a significant upward trend in damages over the period 1985-1997. However, when compared with indemnity payments for cases that are settled, damages awarded by a jury are two to three times higher (Fig 5). There may well have been an attempt to settle these cases, but at a value deemed inadequate by the plaintiff. It should be remembered that the plaintiff’s attorney does take a significant risk when going to trial, since according to the analysis of PIAA data, the chance of prevailing is only about 15%. Cardiothoracic surgery versus other subspecial- ties: Indemnity payments. Overall experience from 1985 to 1997 shows that the average indemnity expen- diture per file requiring payment was $162,584 for car- diothoracic surgery claims. Of the 27 specialties recog- nized by PIAA, cardiothoracic surgery ranked ninth, with specialties like neurosurgery, obstetrics-gynecolo- gy, cardiology, and anesthesia being higher. As an example, the average expenditure per paid file for neu- rosurgery was about $235,000. Conditions that result in claims against cardiotho- racic surgeons. The PIAA database has grouped claims into general categories by type of disease. Not surprisingly, the majority of cardiothoracic surgery claims, 54%, are related to coronary artery disease, which has been arbitrarily subdivided into coronary atherosclerosis, acute infarction, and chronic ischemia. Aortic aneurysm and peripheral vascular problems comprise other higher incidence conditions. Fig 6 sum- marizes the information on the conditions that most often lead to claims, including data on the percentage of such claims requiring indemnity payment and the average indemnity paid. Type of misadventure resulting in claims against cardiothoracic surgeons. The Data Sharing Project has also arbitrarily catalogued the nature of the prob- lems resulting in claims against our specialty. As might be expected, the most common alleged misadventure was “improper performance of a procedure,” which accounted for 35% of closed claims. It is notable that in 25% the insurer could identify “no misadventure,” yet a few of these cases had to be settled anyway. Table I tabulates the relative incidence of misadventures and 216 Wells The Journal of Thoracic and Cardiovascular Surgery February 1999 Fig 8. WTSA malpractice survey: frequency of suits/years in practice. Fig 9. WTSA malpractice survey: malpractice claims by type of care. reports the percentage of such claims requiring indem- nity payment, as well as the average cost. Malpractice experience among members of The Western Thoracic Surgical Association (WTSA) With the idea of obtaining a “snapshot” of medical malpractice in the western part of the United States and Canada, we have surveyed members of the WTSA to learn of their experience. Of 384 active and senior members surveyed, 173 responded (45%). There was proportionate representation from each of the states included in the WTSA’s region, although a large num- ber of the respondents were from California where the majority of our members practice. The median respondent to our survey has been in practice between 20 and 29 years. Although the type of malpractice coverage spanned the options (as depicted in Fig 7), a significant number, 28%, were insured through the institution or university where they were employed. This is probably an aberration of the acade- mic skew common to several of our societies. The median cost of malpractice coverage for all respon- dents was between $20,000 and $25,000, which reflects the relatively high proportion of respondents in academic practice and the fact that the majority were from California, where tort reform has helped reduce premiums. More than 75% of those responding to our survey had been sued, and the average number of suits per sur- geon was two. When we compared the average number of suits with the number of decades in practice (Fig 8), we found no significant difference except that among those practicing for 40 years or more, the incidence was lower. We were unsure whether these more senior respondents had practiced, at least in part, in a “kinder” era, or whether they had just forgotten some of their earlier experience. Fig 9 shows the incidence of mal- practice claims by type of operation and is roughly pro- portional to the incidence of cases done in our subspe- cialty. A further breakdown of claims generated by spe- cific types of patients in the general thoracic and car- diovascular categories is seen in Fig 10. When the outcomes of cases from this WTSA survey are compared with those reported by the PIAA, which has a more national scope, the results are less favor- able. One half of cases reported in the WTSA survey were dismissed or abandoned, whereas in the PIAA experience 70% had that outcome. Only 7% of PIAA cases went to trial, as compared with 17% in the WTSA experience. It is difficult to know whether this means that plaintiff’s attorneys in the WTSA region are more discriminating in selecting cases or more effec- tive in their pursuit. The WTSA survey also showed that among 149 cases that were dismissed, only about one third involved sig- nificant discovery, suggesting the overall cost for these claims should have been relatively low. Likewise, in 40% of the cases that were settled, the settlement cost was less than $30,000, which has traditionally been a threshold for getting rid of nuisance cases that might otherwise involve significant defense costs. These find- ings are shown in Fig 11. Finally, although the number of cases lost at trial was small (n = 19), only 5 (~25%) involved payment of more then $250,000. This may be a reflection of the Medical Injury Compensation Reform Act (MICRA) tort reform legislation, which has been in place in California since 1976. Among other provisions, MICRA limits noneconomic damages (eg, those for pain, suffering, and loss of consortium) to a maximum of $250,000. The expert witness issue A surprisingly large number of respondents to the WTSA survey had served as an expert witness. It could be argued that the responses were biased toward those interested in medical-legal issues, but the fact remains The Journal of Thoracic and Cardiovascular Surgery Volume 117, Number 2 Wells 217 Fig 10. WTSA malpractice survey: malpractice claims by type of care. CABG, Coronary artery bypass grafting. that the percentage was high. In an effort to keep the survey short, we did not get information on how fre- quently opinions had been given for the defense versus the plaintiff. Whereas physicians who read cases for the defense draw little attention from their colleagues, case review for a plaintiff’s attorney triggers animosity from one’s peers. This became acutely apparent to me when, as chair of medical-legal affairs for the STS, our commit- tee attempted to establish a national registry of cardio- thoracic surgery experts. We elicited an amazingly large response from STS members who were willing to have their names made available. A preliminary reg- istry, which was regionalized and categorized by area of expertise (ie, general thoracic, adult cardiac, con- genital), was formed. From the outset the committee believed it was critical that the registry be open to any attorney, whether representing the defense or the plain- tiff. The individual registry experts would determine the acceptability of cases, as well as the fee schedule. When the proposal to implement the registry was put before the STS Council, a small but vocal group defeat- ed the proposal by arguing that allowing plaintiff’s attor- neys access to registry experts would in essence “aid the enemy.” This seemed a shortsighted and unfortunate out- come, because there is no doubt in my mind that there is more benefit than risk in reviewing cases for the plaintiff. This opinion is based on several observations: 1. Plaintiff ’s attorneys have a difficult time obtaining qualified experts in cardiothoracic surgery. Because of the stigmata associated with working for the plaintiff, there is often difficulty in finding a reputable, experi- enced, unbiased surgeon to review a matter. Instead, the plaintiff often ends up with a “hired gun” who finds a way to support even the weakest argument for practice below the standard. That is, after all, in the best inter- est of a professional witness. It is likely that such an expert encourages the continuation of a legal action that might otherwise have been turned down had the plaintiff’s attorney had the benefit of a reputable opin- ion. This phenomenon may also account for the low percentage of plaintiff’s verdicts at trial. 2. An experienced plaintiff ’s attorney does not want to pursue a case without merit. If a reputable unbiased expert reviews a case and finds practice that meets the standard, the vast majority of skilled plaintiff’s attor- neys will drop the matter. We know that a very high percentage of malpractice cases are dismissed, aban- doned, or withdrawn, and it is highly probable that such cases might not have been filed had the plaintiff had access to a reliable expert. It must be conceded that not all attorneys representing the plaintiff are capable and experienced, but as a rule the capable attorneys get the major cases. 3. If a case is below the standard it should be settled quickly. There is the perception that physicians con- spire to protect each other under a “code of silence” even if practice is substandard. This is clearly unac- ceptable, and we as surgeons must not provide the ammunition for such an argument by denying plaintiffs access to experts in our subspecialty. In the majority of instances in which a case is reviewed by a reputable, experienced, unbiased expert and care below the stan- dard is found, settlement discussions begin rapidly. This is as it should be. Valuable resources should not be wasted because the plaintiff cannot find a qualified sur- geon to consider a case. 4. Credibility. Finally, it is difficult to accept a med- 218 Wells The Journal of Thoracic and Cardiovascular Surgery February 1999 Fig 11. WTSA malpractice survey: outcome of malpractice claims. ical expert as unbiased if he or she has only read cases for the defense. In sworn testimony all experts will be asked about their history regarding cases reviewed for the defense versus the plaintiff. A reasonable balance is required to be viewed as impartial. In summary, those involved in medical-legal review should consider plaintiffs’ cases. This will help to build the credibility of our profession and on balance be ben- eficial to our colleagues. Avoiding malpractice suits. In closing, I would like to reflect on the issue of avoiding malpractice suits. The message, like most things that are true, is one that you have heard repeatedly: develop a close, caring rela- tionship with your patients. Patients do not sue physi- cians if they trust them, believe that they care, and believe that everything possible has been done in their best interest. Physicians who have avoided lawsuits are not necessarily the most technically gifted, diagnosti- cally astute, or even the most respected among their peers. They are instead the ones who take the extra time to listen and who organize their practice to show respect for their patients’ time and dignity. The mani- festations of such a practice have been articulated by a group of experienced, suit-free physicians from Texas who made the following suggestions3: 1. Listen patiently. 2. Respect the patient’s dignity and privacy. 3. Return phone calls promptly. 4. Be polite. 5. Be on time. 6. Have the patient join in decision making. 7. Keep patients’ expectations in line with reality (prepare them for all eventualities). 8. Be honest about a misadventure (never cover up or try to blame others). 9. Avoid high-risk situations such as cases you are not fully equipped to handle or cases in which there is a personality clash with a patient or family. 10. Treat the patient as you would like to be treated. We would all be well served to remember and follow this sage advice. I gratefully acknowledge the contribution of Ms Lori Bartholomew in collecting and analyzing data from the PIAA database. R E F E R E N C E S 1. Weiler PC, Hiatt HH, Newhouse JP, Johnson WG, Brennan TA, Leape LL. A measure of malpractice: medical injury, malpractice litigation, and patient compensation. Cambridge [MA], London, United Kingdom. Harvard University Press; 1993. 2. Localio AR, Lowthers AG, Brennan TA, Laird NM, Herbert LE, Weiler PC, et al. Relations between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III. N Engl J Med 1991;325:245-51. 3. Rosenfield H. Silent violence, sudden death: the hidden epidem- ic of medical malpractice. A consumer guide to the medical mal- practice epidemic. Washington [DC]. Essential Books; 1994. The Journal of Thoracic and Cardiovascular Surgery Volume 117, Number 2 Wells 219 
work_7kd2kdtn2za5bkugnopgwakmgu	----	FEMINIST THEORY, CRIME, AND JUSTICE* FEMINIST THEORY, CRIME, AND JUSTICE* SALLY S. SIMPSON University of Maryland Feminist research has expanded beyond its origins in Women’s Studies to influence the more traditionally bounded academic disciplines. Crimi- nology has not been immune to these excursions. This paper presents an overview of feminist theory/methods and its applications within select areas of crime and justice studies. Points of intra-theoretical divergence as well as directions for future feminist contributions are noted. “WHY CAN’T A WOMAN BE MORE LIKE A MAN?” One is tempted to respond to Henry Higgins’s familiar lament with a cyni- cal observation: criminological theory assumes a woman is like a man. As many feminist-criminologists have noted (early critics include Heidensohn, 1968; Klein, 1973; and Smart, 1976), most middle-range and macro theories of crime generously assume that what is true for the gander is true for the goose (see also Harris, 1977). As tempting as this simple assertion might be, however, a closer inspection reveals a more complicated picture. Some feminist critics (Daly and Chesney-Lind, 1988) suggest that criminol- ogy, like other social sciences, is androcentric, that is, study of crime and the justice process is shaped by male experiences and understandings of the social world. Such studiedrealities form the core of “general” theories of crime/ deviance without taking female experience, as crime participant or victim, into account: [Men] create the world from their own point of view, which then becomes the truth to be described . . . Power to create the world from one’s point of view is power in its male form (MacKinnon, 1982:23). Not all criminological research has ignored women, but all too often, pre- 1970s research on female offenders and victims of crime fell prey to unreflect- ing sexism and, in its more extreme form, misogyny. Females who deviated from expected roles were viewed as morally corrupt, hysterical, diseased, manipulative, and devious (Glueck and Glueck, 1934). Law-violating and -conforming behaviors were believed to stem from the same etiological source-the female nature (Edwards, 1985; Klein, 1973).1 A woman, it * My thanks to Kathleen Daly, Nicole Hahn Rafter, and N . Craig Smith for their insightful comments on a draft of this paper. I was assisted in my revisions by the criticisms of three anonymous reviewers. All of the above are to be commended for their assistance, but none is responsible for the ideas and arguments contained herein. 1. This is not to suggest that biological reductionism is absent in studiedtheories of male criminality. Such explanations of male crime abound (e.g., Wilson and Herrnstein, 1985). However, with the demise of phrenology, social factors replaced biology as key CRIMINOLOGY VOLUME 27 NUMBER 4 1989 605 606 SIMPSON seemed-whether good or bad-could never be like a man. These observations are not new, but they reflect a different voice, a feminist voice, that has been added to the criminological discourse. The purpose of this review essay is to introduce feminist criminology and its intellectual par- ent, feminism, to the uninitiated reader. It would be presumptuous to suggest that all relevant studies and arguments about gender and crime are included here. Such an extensive review is more appropriate for a book, and depend- ing on the topic, it has likely already been done and done well (e.g., Eaton, 1986; Freedman, 1981; Heidensohn, 1985; Mann, 1984; Naffine, 1988; Smart, 1976). Instead, illustrative examples of different types of feminist thinking are presented to show how feminism has reframed our points of reference, underlying assumptions, and understandings about crime, victimization, and the justice process. To achieve these aims, the paper is organized into three sections. First, the perspectives and methods that constitute feminist analysis are sorted and dif- ferentiated. Second, three areas of criminological study (the female offender, female victim, and criminal justice processing) are discussed because they are key areas in which feminist approaches have been incorporated. Third, direc- tions for further integration are suggested. FEMINISM: PERSPECTIVES AND METHODS Feminism is best understood as both a world view and a social movement that encompasses assumptions and beliefs about the origins and consequences of gendered social organization as well as strategic directions and actions for social change. As such, feminism is both analytical and empirical. In its incipient form, feminist research almost exclusively focused on women-as a way of placing women at the center of inquiry and building a base of knowl- edge. As it has matured, feminism has become more encompassing, taking into account the gendered understanding of all aspects of human culture and relationships (Stacey and Thorne, 1985:305). It would be a mistake, however, to think of feminism as a single theory. Feminism has expanded into a diverse set of perspectives and agendas, each based on different definitions of the “problem,” competing conceptions of the origins and mechanisms of gender inequality/oppression, and divergent strat- egies for its eradication. Collectively, these perspectives share a concern with identifying and representing women’s interests, interests judged to be insuffi- ciently represented and accommodated within the mainstream (Oakley, 1981:335). etiological forces. These explanations have not been seriously challenged. Conversely, until the feminist critique of the 197Os, biogenic/psychogenic models of female crime went, for the most part, unchallenged. FEMINIST THEORY, CRIME, A N D JUSTICE 607 LIBERAL FEMINISM Liberal feminism was conceived within a liberal-bourgeois tradition that called for women’s equality of opportunity and freedom of choice (Eisenstein, 1981). For the most part, liberal feminists see gender inequality2 emerging from the creation of separate and distinct spheres of influence and traditional attitudes about the appropriate role of men and women in society (Pateman, 1987). Such attitudes are reinforced by discrimination against women in edu- cation, the work place, politics, and other public arenas. Liberals do not believe the system to be inherently unequal; discrimination is not systemic. Rather, men and women can work together to “andro- gynize” gender roles (i.e., blend male and female traits and characteristics; Bem, 1974) and eliminate outdated policies and practices that discriminate against women. Affirmative action, the equal rights amendment, and other equal opportunity laws/policies are advocated as redistributive measures until a meritocratic gender restructuring of society occurs. SOCIALIST FEMINISM For socialists, gender oppression is an obvious feature of capitalist societies. Depending on whether one is a socialist woman (Marxist-feminist) or a socialist-feminist, however, the weight that one gives to capitalism as a neces- sary and/or sufficient cause of that oppression will vary (Eisenstein, 1979). If one is the former, gender (and race) oppression is seen as secondary to and reflective of class oppression. Socialist-feminists attempt a synthesis between two systems of domination, class and patriarchy (male supremacy). Both relations of production and reproduction are structured by capitalist patriarchy (Beauvoir, 1960; Hart- mann, 1979; Mitchell, 197 1). Gender. difference, as a defining characteristic of power and privilege in a capitalist society can only be attacked by con- structing a completely different society, one that is free of gender and class stratification (Oakley, 1981). RADICAL FEMINISM The origins of patriarchy, and the subordination of women therein, are seen by radical feminists to rest in male aggression and control of women’s sexuality. Men are inherently more aggressive than women, who, because of Phillips (1987) argues that the choice of terms describing gender relations imply particular views of what the problem is. So, inequality (a term favored by liberals and some women of color) suggests that women deserve what men and/or whites are granted. Oppression (socialists and women of color) implies a complex combination of forces (ideo- logical, political, and economic) that keep woman in her place. Subordination is a term favored by radical feminists and some women of color who identify the holder of power as the culprit (men and whites respectively). 2. 608 SIMPSON their relative size disadvantages and dependency on men during child-bearing years, are easy to dominate and control. The arguments of radical feminists (e.g., Atkinson, 1974; Barry, 1979; Firestone, 1970; Rich, 1980) bring sexual- ity to the analytical fore. The “personal” is “political” (Millett, 1971). Sex not gender is the crucial analytical category; male domination, not class, is the fundamental origin of female subordination. Radical feminists’ political and social agendas encompass lesbian separatism (Atkinson, 1984) and tech- nological control of reproduction (Firestone, 1970). WOMEN OF COLOR In her eloquent “Ain’t I a woman” speech, Sojourner Truth (1851) informed white suffragists of their myopia about race by highlighting how as a black woman her experience was different from theirs. Joseph and Lewis (1981) remind us that Truth’s commentary is no less relevant today. Many women of color see the women’s liberation movement as hopelessly white and middle class, immune to their concerns. As Hooks (1987:62) observed, Most people in the United States think of feminism . . . as a movement that aims to make women the social equals of men. . . . Since men are not equals in white supremacist, capitalist, patriarchal class structure, which men do women want to be equal to? The alternative frameworks developed by women of color heighten femi- nism’s sensitivity to the complex interplay of gender, class, and race oppres- sion. Patriarchy permeates the lives of minority women, but it does not take the same form that it does for whites (Brittan and Maynard, 1984). Though these contributions may not have coalesced yet into a coherent theoretical framework (at least according to Jagger and Rothenberg, 1984), radical (Lorde, 1988), socialist (Mullins, 1986), and Marxist (Davis, 1981) women of color have provided possible points of integration with theories of race oppression (e.g., Joseph, 1981a, 1981b; Wellman, 1977). In sum, feminist theory is not one perspective; it is a cacophony of com- ment and criticism “concerned with demystifying masculine knowledge as objective knowledge” (Brittan and Maynard, 1984:2 10) and offering insights from a women’s perspective. FEMINIST METHODS The male epistemological stance, which corresponds to the world it cre- ates, is objectivity; the ostensibly uninvolved stance, the view from a dis- tance and from no particular perspective, apparently transparent to its reality. It does not comprehend its own perspectivity, does not recognize what it sees as subject like itself, or that the way it apprehends its world is a form of its subjection and presupposes it (MacKinnon (1982:23-24). Concern over the nonobjective consequences of so-called objective normal FEMINIST THEORY, CRIME, AND JUSTICE 609 science (Kuhn, 1970) has led some feminists to challenge the scientific enter- prise. Keller (1982) arranges these challenges on a political spectrum from slightly left of center (liberal feminists) to the more radical left. The liberal critique takes an equal employment opportunity approach by observing the relative absence of women from the scientific community. This view “in no way conflicts either with traditional conceptions of science or with current liberal, egalitarian politics” (p. 114). From this point, however, the criticisms become increasingly fundamental to the way knowledge is produced; they range from charges of bias in select- ing research topics and interpreting results to rejecting rationality and objec- tivity as purely male products. More radical feminists have adopted a methodological strategy that is in direct opposition to the scientific method. In order to “see” women’s existence (which has been invisible to objective scientific methods) “feminist women must deliberately and courageously inte- grate . . . their own experiences of oppression and discrimination . . . into the research process” (Miles, 1983: 12 1). Feminist methods are necessarily subjec- tivist, transdisciplinary, nonhierarchical, and empowering. Where one falls along Keller’s feminist-political spectrum will determine one’s choice of methods (i.e., quantitative versus qualitative) and whether one sees methods and theory as interrelated as opposed to separate and distinct. Thus, methods used by feminists are more diverse than typically credited (for examples, see Jayarate, 1983; Reinhartz, 1983; Stacey and Thorne, 1985). Together, the above theoretical and methodological points form a feminist perspective. All have been incorporated into criminology, but some have had a greater impact than others. The goal in the next section is to identify the ways in which these approaches and methods have changed the way criminol- ogists address the problems of crime and justice. INCORPORATING THE FRAMEWORKS T H E FEMALE OFFENDER The stirrings of feminist criminology are nearly two decades old. Heiden- sohn (1968: 17 l), in a “pre-feminist” paper, bemoaned the state of knowledge about female deviance and called for a “crash programme of research which telescopes decades of comparable studies of males.” Later, Klein (1973) and Smart (1976) were to bring explicitly feminist perspectives to their critiques of extant theoretical and empirical work on the female offender. Klein, a Marxist-feminist, noted the absence of economic and other social explana- tions for female crime. Smart, working within more of a radical feminist per- spective, stressed the linkages among sexist theory, patriarchy, and sexism in practice-specifically identifying the relationship between stereotypical assumptions about the causes of female crime and how female offenders are controlled and treated. 610 SIMPSON Both Klein and Smart set an agenda for a new feminist criminology, but their more radical approaches were derailed by the publication of Simon’s Women and Crime and F. Adler’s Sisters in Crime (1975). Claiming that a “new” female offender was emerging (white collar and/or male like), Simon and Adler generated tremendous interest in female crime (a clear aim of incipient feminism). But, tying the female offender’s emergence to women’s liberation brought about a “moral panic” (Smart, 1976), which was viewed by some as a blacklash to the women’s movement.3 In Chesney-Lind’s (1980:29) words, it represented “another in a century long series of symbolic attempts to keep women subordinate to men by threatening those who aspire for equal- ity with the images of the witch, the bitch, and the whore.”4 As with many social problems of our day, female crime became interesting only when it transcended the expected boundaries of class, race, and gender. As a “quasi-theory,” the liberation-crime relationship had great appeal for nonfeminist crimino1ogists.s But tests of the thesis were less than supportive. In fact most discredited it (Austin, 1982; Giordano et al., 1981), and others found evidence of a link between female crime and economic marginalization (Datesman and Scarpitti, 1980; Gora, 1982; Mukherjee and Fitzgerald, 198 1; Steffensmeier, 1978, 1981; Steffensmeier and Cobb, 1981). The new female offender identified by Simon and Adler was more myth than reality (Steffen- smeier, 1978). These conclusions did not differ substantially from Klein’s (1973), yet they came years after her original critique-a fact that dramati- cally illustrates the marginality of feminist criminology at the time. Yet, sub- sequent research on the causes of female crime has clearly buttressed the economic/class perspectives of Marxist/socialist feminists as well as the 3. The links between women’s liberation and changing patterns of female criminality were made before. Bishop (1931) complained that women’s liberation during the 1920s had three negative results: ( I ) more women were turning criminal; (2) a “better” class of women were becoming criminal more often; and (3) women were becoming sexually crimi- nal at a younger age (cited in Rasche, 1974). T o be fair, both Simon and Adler had more to offer than mere speculation about the “dark side” of women’s liberation. Simon’s research documents the basic inequities between male and female correctional facilities and treatments. By attributing these differ- ences to male chivalry toward women, she takes a liberal feminist approach to the problem of gender and justice, an approach that heavily influenced later works in this area. Adler’s work, while more impressionistic than Simon’s, attempted to explain differences in crime rates between white and black females. Although her interpretations gave rise to more systematic examinations of intra-gender race differences in crime that are highly critical of her interpretations and methods, the issues she raised are of primary importance to most feminist criminologists today. A research focus on gender alone does not qualify one as a feminist just as a focus on class does not make one a marxist. Rather, as part of their endeavor, feminist criminol- ogists must seriously consider the nature of gender relations and the peculiar brand of oppression that patriarchal relations bring (Leonard, 1982). 4. 5 . FEMINIST THEORY, CRIME, A N D JUSTICE 61 1 “opportunity” perspectives of the liberal feminists (Ageton, 1983; Box, 1983; Box and Hale, 1984; Elliott and Ageton, 1980; Giordano et al., 1981). In retrospect, feminist criminology both gained and lost from the narrow focus on liberation and crime. On the plus side, we gained a better insight into the historical (Mukherjee and Fitzgerald, 198 1) and cross-cultural (F. Adler, 1981; Plenska, 1980) patterns of female crime. But because the libera- tion thesis was so limited, it diverted attention from the material and struc- tural forces that shape women’s lives and experiences. It is in these areas that women of color and socialist and radical feminist criminologists are more apt to focus etiological attention (Hagan et al., 1985, 1987; Lewis, 1981; Miller, 1985; Rafter and Natalizia, 1981; Wilson, 1985). WOMEN VICTIMS: T H E RADICAL FEMINIST CRITIQUE Liberal feminism has dominated studies of the female offender, but the same is not true of victimology (Daly and Chesney-Lind, 1988). Shifting away from analyses that blame the victim for her victimization (Amir, 1967),6 radical feminists have constructed alternative interpretations of offender-victim relationships and victim experiences of criminal justice (Chapman and Gates, 1978; Klein, 1981; Wood, 1981). Brownmiller’s (1975) historical and cross-cultural study of rape brought a radical feminist perspective to the center of public consciousness. Building on the argument that rape is not a crime of sex but rather an act of power and dominance (Greer, 1970), Brownmiller concluded that rape is a tool in the arsenal of all men to control all women. Radical feminists have reframed the ways in which rape is commonly understood in our society. Rather than a crime of sex, it is more apt to be viewed as one of male power, control, and domination. Brownmiller’s work, coupled with that of other radical feminists (e.g., Griffin, 1979; Riger and Gordon, 1981), opened a floodgate of inquiry into rape and other types of victimizations that are “uniquely feminine” (Wilson, 1985:4), such as pornog- raphy (Dworkin, 1981), battering (Dobash and Dobash, 1979; Martin, 1976; Straus et al., 1980), incest (Finkelhor, 1979; Moyer, 1985; Stanko, 1985) and sexual harassment (MacKinnon, 1979; Stanko, 1985). Guiding much of this research is the radical feminist critique of official conceptions and definitions of violence, which are viewed as male centered and incapable of incorporating the full range of female experiences of violence (i.e., from intimidation and coercion to physical violence and death). A woman-centered definition of violence is one that portrays violence as a form 6 . Precipitous behavior has ranged from dressing provacatively, saying no to sex while “meaning” yes, “nagging” a spouse, Lolita-like seductiveness on the part of the vic- tim, and so on. 612 SIMPSON of social domination rather than a random and/or noninstrumental form of expression (Hanmer, 1981:32). Radical feminists have dominated but not monopolized feminist perspec- tives in this area. Socialist feminists, liberals, and women of color have also participated in the dialogue. Gordon’s (1988) research of family violence is implicitly critical of some radical feminists’ overly deterministic conception of patriarchy. Such an image, she argues, denies agency to women and can- not incorporate “the chronic conflict, unpredictability, and ambivalent emo- tions that have characterized relations between the sexes” (xi-xii). In another historical study, Tomes (1 978) links variations in spousal abuse to changes in the economic position of the working class generally and the male’s position within the family specifically. As the working class improved its economic position and males cemented greater power within their families, the official incidence of working-class battering decreased. Based on her findings, Tomes argues that feminists may need to reconcep- tualize the relationship among male power, female economic dependency, and battering. Dependency is not necessarily tied to greater abuse; in fact, the opposite may be true. A wife’s economic independence may exert a greater challenge to male authority within the family, thus creating a climate in which husbands resort to battering as a means to reestablish their control. Studies that find great variety in the cross-cultural prevalence and inci- dence of rape and battering (e.g., Pagelow, 1981; Sanday, 1981) have forced feminists to examine patriarchal relations across different societal and situa- tional arrangements (e.g., Wilson, 1985). If female victimization is a function of changing the needs of a capitalist/patriarchal system, then male domina- tion and its relationship to female victimization need not be viewed as inevita- ble or immutable. Around the themes of rape and control of sexuality, patriarchy and racism marry and divorce in intricate ways (Davis, 1981). In the United States, white racism and fear gave rise to mythological constructions of black sexual- ity. Black males are perceived as sexual threats and have been hunted and hanged for their “rape potential.” For black victims of rape, the justice pro- cess is not simply gendered-it is racially gendered. Data indicate that black- on-black rapes are not taken as seriously by authorities as those that involve white victims (Kleck, 1981; LaFree, 1980). Such findings have led one prom- inent black scholar (Joseph, 1981b:27) to comment, “It must be considered an impossibility for white men to rape Black women in the eyes of justice and in the minds of many. Black women apparently are considered as something other than ‘women.’ ” GENDER AND JUSTICE PROCESSING A final area to be discussed in this literature review is gendered justice. FEMINIST THEORY, CRIME, A N D JUSTICE 613 Comedian Richard Pryor once called attention to discrimination in the U.S. criminal justice system by defining justice as “just us.” His concern with differential sentencing practices is one shared by feminists who primarily study the conditions under which criminal justice is gendered and with what consequences. Although liberal approaches typically dominate the gender- and-justice research, other feminist perspectives are gaining ground-spe- cially in research on courts and corrections. There are many stages in the criminal justice system at which gender may have an impact on decision making. The findings of some of the better- known studies of several strategic points in the decision-making process are summarized below. POLICE Arguments about whether and how justice is gendered must begin with police behavior. That police decisions to arrest can be influenced by extrale- gal factors such as the demeanor of the offender (Black, 1980), has been established. It is less clear how gender, either alone or in conjunction with other characteristics, may consciously or inadvertently influence police behavior. In the liberal “equal treatment” tradition, Moyer and White (1981) test police bias in response decisions under “probable” responses to hypothetical situations. Neither gender nor race had an effect on police behavior once crime type, especially as it interacts with demeanor of the offender, was con- trolled. On the other hand, Freyerhern’s (1981) comparison of juvenile male and female probabilities of transition from self-report incident to police con- tact and arrest, finds males to be more likely to incur police contact and arrest than females. Both of these studies are methodologically problematic, how- ever. Moyer and White cannot generalize their findings to real police encounters and Freyerhern (198 1 :90) does not calculate transition probabili- ties across individual offense categories, nor does he include status offenses. Avoiding some of these methodological traps but still working within a lib- eral tradition, Visher (1983) finds the interaction between race and gender to be a key factor influencing arrest decision. Visher finds police chivalry only toward white females once “legal” factors are controlled. She hypothesizes that black females are treated more harshly than their white counterparts because they are less apt to display expected (i.e., traditional) gender behav- iors and characteristics when they encounter a mostly white and male police force. Race and gender are also found to interact through victim characteristics (Smith et al.. 1984). An analysis of 272 police-citizen encounters, in which both a suspected offender and victim were present, revealed that white female victims received more preferential treatment from police than black female 614 SIMPSON victims. Thus, although chivalry may be alive and well for white women, it appears to be dead (if it ever existed) for blacks. COURTS Police contact is not the only point in justice processing at which discrimi- nation can occur. Women have been found to receive more lenient treatment in the early stages of court processing (i.e., bail, release on own recognizance, and/or cash alternatives to bail; I. Nagel, 1983) and further into the process, e.g., conviction and sentencing (Bernstein et al., 1977; S. Nagel and Weitz- man, 1972; Simon, 1975). Other studies find no gender bias when controlling for crime seriousness and prior record (Farrington and Morris, 1983) or little effect from extralegal factors when legal factors and bench bias are controlled (I. Nagel, 1983). Variation in sentencing may be related to so-called counter- type offenses, that is, women are treated more harshly when processed for nontraditional female crimes, like assault (Bernstein et al., 1977; S. Nagel and Weitzman, 1972), or when they violate female sexual norms (Chesney-Lind, 1973; Schlossman and Wallach, 1978). Given variable-specification problems, however, some of these findings are potentially spurious. Once again, race may confound these effects. Spohn et al. (1982) address the issue of paternalism in sentencing, especially for black women. Control- ling for prior record and attorney type, they found that black women are incarcerated significantly less often than black men, but about as often as white men. They conclude that the apparently lenient treatment of black women is not due to paternalism in their favor but rather to the racial dis- crimination against black vis-a-vis white men. Studies of court processing are not entirely dominated by liberal perspec- tives. More critical perspectives emphasize social power and patriarchal con- trol as the primary mechanisms through which justice is gendered (Kruttschnitt, 1982, 1984). Eaton (1986:35) argues that magistrate courts in Great Britain (the lower courts) reinforce the dominant imagery of justice (i.e., courts are ostensibly fair and just) while they maintain the status quo: “It is in these courts that the formal rules of society-the laws-are endorsed; it is here, too, that the informal, unwritten rules regulating social relations [e.g., gender, class, and race] are re-enacted.’’ When are females apt to be subjected to formal mechanisms of control? When other, more informal, constraints are lacking or disrupted. Kruttschnitt (1982, 1984) suggests that sentencing outcomes are affected by a woman’s social status and/or her respectability. Differential sentencing among women is tied to the degree to which women are subjected to formal versus informal social control in their everyday lives. Daly (1987a, 1989b) and Eaton (1986, 1987) offer convincing evidence that the most important factor determining sentence outcome, once prior record FEMINIST THEORY, CRIME, A N D JUSTICE 615 and offense seriousness are controlled, is marital and/or familial status.’ Marital status.has been found to matter for women (married receive more lenient sentences) but not for men (Farrington and Morris, 1983; I. Nagel, 1981) or to be as important for both (Daly, 1987a, 1987b). Pretrial release and sentencing are seen to be both “familied” and “gendered.” They are familied in that court decisions regarding the removal of men and women from families “elicit different concerns from the court” (Daly 1987a:154). They are gendered in that women’s care of others and male economic support for families represent “different types of dependencies in family life” (p. 154). Men and women without family responsibilities are treated similarly, but more harshly than familied men and women. Women with families, however, are treated with the greatest degree of leniency due to “the differing social costs arising from separating them from their families” (Daly, 1987b3287). The economic role played by familied men can, more eas- ily, be covered by state entitlement programs, but it is putatively more diffi- cult to replace the functional role of familied women. Judges rationalize such sentencing disparities as necessary for keeping families together (Daly, 1989b). As these latter studies suggest, much of the observed gender bias in processing may not be a case of overt discrimination for or against women relative to men. Instead, judicial decisions may be influenced by broader soci- etal concerns about protecting nuclear families (Daly, 1989b) and the differ- ing roles and responsibilities contained therein (Eaton, 1986). It is not clear that such forms of justice are overtly paternalistic, nor are they necessarily racist. Rather, in a society that stratifies other rights and privileges by gen- der, race, and class, “equality” in sentencing may not be just (Daly, 1989a). Eaton (1986: 10-1 1) takes a somewhat different view of familied justice. In her opinion, the courts reflect the needs and interests of patriarchy and capi- talism, in which attendant inequities are reproduced. “Family-based” justice is a visible manifestation of the patriarchal and capitalist need to maintain and protect the nuclear family-within which gender and productive/repro- ductive relations first emerge. CORRECTIONS As it became clear that, compared with males, female prisoners were treated differently (in some cases more leniently and in others more harshly), liberal feminist perspectives came to dominate research questions and policy considerations (see, Haft, 1980; Heide, 1974; Simon, 1975). The linkages between female incarceration and male control of female sex- uality are developed by radical feminists (Chesney-Lind, 1973; Smart, 1976). Rasche (1 974), for example, describes how prostitutes with venereal disease These effects appear to be strongest for black defendants (Daly, 1989a). 7. 616 SIMPSON were prosecuted and institutionalized, with the “cure” as a condition of release. Nondiseased prostitutes were less likely to go to jail or prison. Cer- tain prison practices, such as checking for evidence of a hymen during forced physical examinations and vaginal contraband searches, have been used as techniques to control the sexuality of youthful offenders and to humiliate and degrade female inmates (Burkhart, 1973; Chesney-Lind, 1986). Socialist feminists emphasize how prison tenure and treatment vary by class and race (Freedman, 1981; French, 1977, 1978; Lewis, 1981; Rafter, 1985). In her historical accounting of the development of women’s prisons, Rafter (1985155) observes how race determined whether and where a woman was sent to prison. Comparison of incarceration rates and in-prison treatment of black women and white women demonstrates that partiality was extended mainly to whites. Chivalry filtered them out of the prison system, help- ing to create the even greater racial imbalances among female than male prisoner populations. And partiality toward whites contributed to the development of a bifurcated system, one track custodial and predomi- nantly black, the other reformatory and reserved mainly for whites. The bifurcated system of women’s corrections emerges in part from two competing images of female nature. In one view, women are seen as fragile and immature creatures, more childlike than adult. Consequently, the female offender is perceived as a “fallen woman,” in need of guidance but not a true danger to society (Rasche, 1974). The reformatory is perfectly suited to such an offender. Primarily staffed by reform-minded middle-class women, reformatory training programs emphasized skills that would turn the white, working-class misdemeanants into proper (and class-appropriate) women, that is, good servants or wives (Rafter, 1985:82). In custodial prisons, however, a different archetype dominated. Women’s “dark side,” their inherent evil and immorality (Smart, 1976) shaped prison philosophy. Here, the predominantly black felons (who were perceived as more masculine, more self-centered, volatile, and dangerous) were treated like men-only, given the conditions of their incarceration (i.e., fewness of numbers and at the mercy of violent male offenders), their equality was tanta- mount to brutal treatment and often death (Rafter, 1985:181). The degree to which prisons function as something other than just places of punishment and/or treatment is a popular theme in neo-Marxist literature. Extending this interpretation to women, Marxist-feminists (e.g., Wilson, 1985; Hartz-Karp, 1981) argue that prisons, like other institutions of social control (e.g., mental health facilities), retool deviant women for gender- appropriate roles in capitalist patriarchal societies: If deviant women are more frequently assigned to the mental health sys- tem for social control than to the criminal justice system, it is perhaps FEMINIST THEORY, CRIME, A N D JUSTICE 617 because of the superior ability of the mental health system to “re-tool” worn-out or rebellious domestic workers. (Wilson, 1985: 18) Societal control of female deviance serves the needs of capital. When those needs change, so too will the mechanisms and directions of social control.8 In this vein, Carlen (1983) demonstrates how “down, out and disordered” women in Scotland are disciplined through medical and judicial apparatuses. Most of the imprisoned are poor women; many have histories of alcohol and drug abuse, and a large number come from violent homes. These life exper- iences combine, setting into motion a cycle of deviance, imprisonment, and patriarchal and class discipline that is tenacious and defeating: Being seen as neither wholly mad nor wholly bad, [women] are treated to a disciplinary regime where they are actually infantalised at the same time as attempts are made to make them feel guilty about their double, triple, quadruple, or even quintuple refusal of family, work, gender, health, and reason (Carlen, 1983:209). WHERE TO GO FROM HERE? In 1976, Carol Smart suggested a number of topics for feminist research.9 A decade later, feminist criminology has amassed a considerable body of knowledge in most of these areas-so much so in fact that feminists now are more self-critical-especially in the areas of policy and legislative changes (see Daly and Chesney-Lind, 1988). This is a positive step. It suggests not only that a feminist voice is being heard, but that it is loud enough to produce disagreement and intellectual exchange. Nonetheless, certain areas in crimi- nology either have been underexposed or are resistant to feminist concerns. Thus, some new directions for feminist criminology are discussed below.10 RACE AND CRIME Poorly conceived offender self-report surveys provided criminologists with the empirical justification to ignore the race-crime relationship, and the pre- vailing political climate reinforced our myopia. There is enormous risk in ignoring that relationship, however. First, based on more sophisticated crime Cloward and Piven (1979) and Box (1983) assert that female deviance is handled by the medical community, in part, because women are more likely to direct their deviance inward (i.e., they privatize it into self-destructive behaviors, like depression and suicide). Such behavior is conceptualized as sickness (like “hysteria” earlier) and is thus subject to the formal control of the psychiatric community. The relevant topics are the female offender and the attitudes of criminal justice personnel toward her; criminal justice processing; gender and corrections; and the structure and purpose of law. To suggest that feminists need to identify areas “appropriate” for feminist critique implies that knowledge, as currently constructed, is selectively androcentric. I would argue that criminology as a whole, like other academic disciplines, needs a feminist “overhaul.” 8. 9. 10. 618 SIMPSON measures (e.g., National Youth Survey, National Crime Survey, cohort stud- ies), it is clear that the race-crime relationship is an essential one. Second, and not unlike the gender-crime relationship, such reticence leaves the inter- pretive door open to less critical perspectives. Feminist criminologists have great potential in this area, but the data are sparse and problematic and the analytic contributions few. Too often we rely on quantitative studies that dichotomize race into white and black, or the nonwhite category is broadened to include groups other than blacks (see, e.g., Tracy et al., in press). In the former instance, other ethnichacia1 groups are ignored; in the latter, such inclusive categorizations assume etiological and historical/cultural invariance between groups. Clearly, one of the first places for feminists to start is to target women of color for greater research. Available data indicate that there are significant differences between black and white female crime rates (Ageton, 1983; Chilton and Datesman, 1987; Hindelang, 1981; Laub and McDermott, 1985; Mann, 1987; Young, 1980). Simpson (1988), Miller (1985), and Lewis (1981) argue that the unique structural and cultural positioning of black women pro- duces complex cultural typescripts that exert push-pull pressures for crime, pressures that may not exist for white women. Miller’s (1985: 177-178) ethnography of lower-class deviant networks describes how certain types of male and female criminality (e.g., hustling, pimping, and other instrumental crimes) are interdependent in minority com- munities. Female crime also appears to have a group-directed and -enacted dimension (see Young, 1980). The collective nature of such minority offend- ing may stem from the fact that it emerges, in part, from the integrated and extended domestic networks of underclass blacks (Miller, 1985) and from joint participation in gang activities (Campbell, 1984). These observations do not imply, however, that patriarchy is absent from these communities. Male dominance and control are reproduced within interpersonal relationships (not necessarily familial) and embodied in infor- mal organizations, like gangs (Campbell, 1984) and state social service agen- cies. Some female offending can be interpreted as challenging patriarchal control and asserting independence (Campbell, 1984: 135); much can be attributed to both economic necessity and the pull and excitement of street life (Campbell, 1984; Miller, 1985). Female participation in violent crime may stem from abusive relationships between men and women (Browne, 1987; Mann, 1987) and/or the frustration, alienation, and anger that are asso- ciated with racial and class oppression (Simpson, 1988). Research by Hill and Suva1 (1988) suggests that the causes of crime may differ for black and white women, which raises questions about whether cur- rent theories of female crime, including feminist perspectives, are white- female centered. Given the paucity of data on how gender structures rela- tionships within minority communities and families, it is impossible to say. FEMINIST THEORY, CRIME, AND JUSTICE 619 More quantitative research is needed on minority groups other than blacks (e.g., Chicanos and other Hispanics, Asians, Native Americans) to establish a better knowledge base, but qualitative studies that probe culture and subjec- tive differences between women of color and whites are also essential (Mul- lins, 1986). Feminist criminologists are guilty of the “add race and stir” shortsightedness that pervades feminist thinking. We would do well t o heed Spelman’s (1988:166) reminder of how to understand and approach differ- ences among women: If we assume there are differences among women, but at the same time they are all the same as women, and if we assume the woman part is what we know from looking a t the case of white middle-class women, then we appear to be talking only about white middle-class women. This is how white middle-class privilege is maintained even as we purport to recognize the importance of women’s differences. ELITE CRIME In 1977, Harris admonished criminologists for their failure to use “the sex variable” as the empirical building block for all theories of criminal deviance. Apparently (though not surprisingly) this was interpreted to apply only to street crime. The entire area of white-collar, corporate, and organizational crime has not been examined from a feminist perspective. Officially, women are underrepresented in white-collar crime data although recent Bureau of Justice Sfatistics (1987) data suggest that women have made inroads into this formerly male domain. Similar claims are made regarding female penetration of the upper reaches of organized crime (Simpson, 1987). Yet, Daly (1988) finds neither the crime types nor the offenders themselves to be particularly elite. Much of our information on female participation in organized crime is anecdotal, derived from the nonsystematic observations of male crime partici- pants. Consequently, there has been little systematic research on women’s penetration of and mobility within illicit markets. The official data on corpo- rate and other white-collar offending are equally problematic (see Reiss and Biderman, 1980). Given that both the data and interpretation/theory in these areas are suspect, feminist researchers must first develop an empirical base with which to answer the following types of questions. Is elite crime a male domain (Steffensmeier, 1983)? What are the motivations and character- istics of women who do participate (Daly, 1988; Zietz, 1981)? How are they similar and different from male offenders (P. Adler, 1985; Block, 1977; Simp- son, 1987)? What explains the official increase in female participation in white-collar offenses? At this point, feminists have barely scratched the surface of the elite crime 620 SIMPSON area. Daly (1988) is providing some direction, but much more needs to be done. DETERRENCE Gender confounds the anticipated relationship between objective sanction risks and criminal activity, that is, given that female sanction risks are low, women should have high rates of law breaking. Yet, as virtually all measures of crime document, the exact opposite is true. This empirical relationship has left deterrence theorists scrambling to make sense of the inconsistency. Richards and Tittle (1 98 1 : 183-1 85) argue that there are at least five lines of reasoning that would predict that women perceive higher levels of risk than do men. Using measures derived from these hypotheses, they find two vari- ables, stakes in conformity and perceptions of visibility, to be highly associ- ated with gender differences in perceived chances of arrest: Women may think that legal sanction is relatively certain because they are more likely to think of themselves as subject to surveillance and gen- eral social sanctions than are men. Their greater relative stakes in con- formity may make deviance more threatening for them, and lead to high sanction risk estimates (p. 196). The social control literature, in general, characterizes female conformity in a stereotypical manner. Conforming females are seen as passive, compliant, and dependent. Instead, Naffine (1988: 13 1) suggests that the conforming women be seen as “involved and engrossed in conventional life. But . . . also actively concerned about the effects of her behavior on her loved ones, partic- ularly emotionally and financially dependent children.” (Naffine is especially critical of Hagan et al., 1979, 1985, 1987.) Naffine’s image of conformity is partially influenced by Gilligan’s (1982) work in moral development theory. Gilligan’s research discovers that men and women use “a different voice” when they talk about moral responsibility. If the moral calculus of reasoning about crime is different between men and women, Gilligan may have identified a new way of conceptualizing gender differences in (1) perceived threat of sanction and (2) male-female crime rates. According to her theory, men often make moral decisions based on an “ethic of justice,” while women employ a model of decision making based on an “ethic of care.” The former is a more abstract model, expressed as a set of principles defining rights and rules (e.g., Kohlberg, 1981). In the latter, deci- sions are governed by “a psychological logic of relationships, which contrasts with the formal logic of fairness that informs the justice approach” (Gilligan, 1 9 82:73). A woman’s decision to violate the law will depend on her definition of the moral domain (i.e., how will my act affect those around me, those who count FEMINIST THEORY, CRIME, A N D JUSTICE 62 1 on me). It is not surprising that in some deterrence studies (Finley and Gras- mick, 1985) women score significantly higher than men on measures of inter- nalized guilt. Because women are responsible for the care of relationships, any act that may result in their removal from that role is apt to produce a tremendous sense of guilt. Guilt may be negated if the needs of the family (for food or other valued items) outweigh the “immorality” of breaking the law to obtain them or if others are available to take on the responsibilities of care. Gilligan’s theory can be used to explain why most women do not violate the law and why they score higher on most measures of deterrence. It can also explain class and race differences in female crime rates. Lower-class and minority women are more apt to find themselves in situations that require a renegotiation of the moral domain and, given their kinship networks, they have a greater chance of finding care substitutes (Miller, 1985). Not surpris- ingly, Finley and Grasmick (1985) report that blacks score lower on certainty and severity of guilt than their white counterparts. Some critics suggest that Gilligan’s findings are biased (she interviewed mostly middle-class students) or that they may be a function of subordinate female social position, not real differences in ethical philosophies (Tronto, n.d.). These are important criticisms that must be addressed before we pro- ceed too enthusiastically. Gilligan’s conceptualization of differences in gen- der-based moral reasoning, however, are an important contribution and warrant further research. CONCLUSION Feminist criminology has changed dramatically since Klein (1 973) and Smart (1976) first called attention to it. Replicating the same political and analytical development as the broader feminist movement, feminist contribu- tions to the study of crime and justice began with more liberal approaches and have recently been giving way to more radical critiques. Liberal feminist dominance rests, in part, in ideological coherence-these approaches corre- spond closely with the ideas and beliefs embodied in most capitalist democra- cies. Thus, liberalism in any form is less threatening and more acceptable than a feminism that questions white, male, and/or capitalist privilege. 1 1 Additionally, liberal feminists speak in the same voice as a majority of social scientists, that is, they are rational, objective, and (typically) quantitative. Consequently, their data and interpretations carry more weight within the scientific community and among their peers. 11. Stacey and Thorne (1985:308) argue that more radical feminist thinking has been marginalized-ghettoized within Marxist sociology, which ensures that feminist thinking has less of a chance to influence mainstream sociological paradigms and research. 622 SIMPSON Though 1iberaVquantitative approaches offer important insights into gen- der as a “variable” problem (Stacey and Thorne, 1985), criminologists need to be more ecumenical in studying gendered society. If we emphasize qualita- tive (e.g., Campbell, 1984; Carlen, 1986; Eaton, 1986; Miller, 1985), historical (Gordon, 1988; Freedman, 1981; Rafter, 1985), and subjectivist (Stacey and Thorne, 1985) approaches in addition to quantitative, the detail and texture of how crime and justice are gendered will lead to richer theory and better criminology. There are areas in criminology into which feminists have only marginally ventured or in which their contributions have been of little consequence. In their review of feminist criminology, Daly and Chesney-Lind (1988512-5 13) discuss the problems that feminists have had building and developing theories of female crime. It is not coincidental that the areas targeted for further research in this paper (e.g., race and crime, elite crime, and deterrence) all focus on this problematic area. Until we can better deal with the empirical complexities of criminal offending, it will be too easy for our critics to dismiss feminist contributions to the study of crime as facile, rhetorical, and/or atheoretical. REFERENCES Adler, Freda 1975 Sisters in Crime: The Rise of the New Female Criminal. New York: 1981 McGraw-Hill. The Incidence of Female Criminality in the Contemporary World. New York: New York University Press. Wheeling and Dealing: An Ethnography of an Upper-Level Drug Dealing and Smuggling Community. New York: Columbia University Press. The dynamics of female delinquency, 1976-1980. Criminology 2 1:555-584. Victim precipitated forcible rape. Journal of Criminal Law, Criminology, and Police Science 58:493-502. Adler, Patricia 1985 Ageton, Suzanne S. Amir, Menachem 1983 1967 Atkinson, Ti-Grace 1974 Radical Feminism and Love. I n Amazon Odyssey. New York: Links Books. Women’s liberation and increases in minor, major, and occupational offenses. Criminology 20:407430. Austin, Roy L. 1982 Barry, Kathleen Beauvoir, Simone de 1979 Female Sexual Slavery. New York: Avon Books. 1960 The Second Sex. London: Four Square Books. FEMINIST THEORY, CRIME, A N D JUSTICE 623 Bem, Sandra 1974 The measurement of psychological androgyny. Journal of Consulting and Clinical Psychology 42:155-162. Charge reduction: An intermediary stage in the process of labelling criminal defendants. Social Forces 56:362-384. Bernstein, Ilene Nagel, Edward Kick, Jan Leung, and Barbara Schulz 1977 Bishop, Cecil Black, Donald 1931 Women and Crime. London: Chato and Windus Press. 1980 On the Manners and Customs of the Police. New York: Academic Press. Block, Alan 1977 Aw! Your mother’s in the mafia: Women criminals in progressive New York. Contemporary Crises 15-22, Box, Steven Box, Steven and Chris Hale 1983 Power, Crime, and Mystification. London: Tavistock. 1984 Liberation/emancipation, economic marginalization, or less chivalry: The relevance of three theoretical arguments to female crime patterns in England and Wales, 195 1-1980. Criminology 22:473497. Sexism, Racism and Oppression. Oxford: Basil Blackwell. Brittan, Arthur and Mary Maynard Browne, Angela Brownmiller, Susan 1984 1987 When Battered Women Kill. New York: Free Press. 1975 Against Our Will: Men, Women, and Rape. New York: Simon & Schuster. Burkhart, Kathryn Watterson Bureau of Justice Statistics 1973 Women in Prison. Garden City, N.Y.: Doubleday. 1987 Special Report: White-collar Crime. Washington, D.C.: U.S. Department of Justice. Campbell, Anne 1984 The Girls in the Gang: A Report from New York City. Oxford: Basil Blackwell. Women’s Imprisonment: A Study in Social Contol. London: Routledge & Kegan Paul. Carlen, Pat 1983 Chapman, Jane Roberts and Margaret Gates (eds.) Chesney-Lind, Meda 1978 The Victimization of Women. Beverly Hills, Calif.: Sage. 1973 1980 Judicial enforcement of the female sex role. Issues in Criminology 8:51-69. Rediscovering Lilith: Misogyny and the “new” female criminal. In Curt Taylor Griffiths and Margot Nance (eds.), The Female Offender. Criminol- ogy Research Centre. Burnaby, B.C.: Simon Fraser University. Women and crime: The female offender. Signs 12:78-96. 1986 624 SIMPSON Chilton, Roland and Susan K. Datesman 1987 Gender, race, and crime: An analysis of urban arrest trends, 1960-1980. Gender and Society 1:152-171. Cloward, Richard A. and Frances Fox Piven 1979 Hidden protest: The channeling of female innovation and resistance. Signs 4:651-669. Daly, Kathleen 1987a 1987b 1988 Discrimination in the criminal courts: Family, gender and the problem of equal treatment. Social Forces 66:152-175. Structure and practice of familial-based justice in a criminal court. Law and Society Review 21:267-290. Gender and varieties of white-collar crime. Revised version of a paper presented at the annual meeting of the American Society of Criminology, Atlanta. Neither conflict nor labeling nor paternalism will suffice: Intersections of race, ethnicity, gender, and family in criminal court decisions. Crime and Delinquency 35:136-168. Rethinking judicial paternalism: Gender, work-family relations, and sentenc- ing. Gender and Society 3:9-36. Feminism and criminology. Justice Quarterly 5: 497-538. 1980 Women, Crime, and Justice. New York: Oxford University Press. 1989a 1989b Daly, Kathleen and Meda Chesney-Lind. 1988 Datesman, Susan K. and Frank R. Scarpitti (eds.) Davis, Angela 1981 Women, Race, and Class. New York: Random House. Dobash, R. Emerson and Russell Dobash 1979 Violence Against Wives: A Case Against the Patriarchy. New York: Free Press. Dworkin, Andrea 1981 Pornography: Men Possessing Women. New York: Perigee Books. Eaton, Mary 1986 Justice for Women? Family, Court, and Social Control. Philadelphia: Open 1987 University Press. The question of bail: Magistrates’ responses to applications for bail on behalf of men and women defendants. I n Pat Carlen and Anne Worrall (eds.), Gender, Crime and Justice. Philadelphia: Open University Press. Women on Trial: A Study of the Female Suspect, Defendant, and Offender in the Criminal Law and Criminal Justice System. Manchester, N.H.: Manchester University Press. Edwards, Susan M. 1985 Eisenstein, Zillah 1979 1981 The Radical Future of Liberal Feminism. New York: Monthly Review Capitalist Patriarchy and the Case for Socialist Feminism. New York: Monthly Review Press. Press. FEMINIST THEORY, CRIME, A N D JUSTICE 625 Elliott, Delbert and Suzanne S. Ageton 1980 Reconciling race and class differences in self-reported and official estimates of delinquency. American Sociological Review 45:95-110. Sex, sentencing and reconviction. British Journal of Criminology Farrington, David and Allison Morris 1983 23~229-248. Finkelhor, David Finley, Nancy J. and Harold G. Grasmick Firestone, Shulamith Bantam. Their Sisters’ Keepers: Women’s Prison Reform in America, 1830-1930. Ann Arbor: University of Michigan Press. An assessment of the black female prisoner in the South. Signs 3:483488. The incarcerated black female: The case of social double jeopardy. Journal of Black Studies 8:321-335. Gender differences in delinquency quantity and quality. In Lee H. Bowker (ed.), Women and Crime in America. New York: Macmillan. In a Different Voice: Psychological Theory and Women’s Development. Cambridge, Mass.: Harvard University Press. The economics of female criminality: An analysis of police blotters 1890-1975. In Lee H. Bowker (ed.), Women and Crime in America. New York: Macmillian. Five Hundred Delinquent Women. New York: Alfred A. Knopf. The New Female Criminal: Empirical Reality or Social Myth? New York: Praeger. Heroes of Their Own Lives: The Politics and History of Family Violence. New York: Penguin. 1979 Sexually Victimized Children. New York: Free Press. 1985 1970 The Dialectic of Sex: The Case for Feminist Revolution. New York: Gender roles and social control. Sociological Spectrum 5:3 17-330. Freedman, Estelle 1981 French, Laurence 1977 1978 Freyerhern, William 1981 Gilligan, Carol 1982 Giordano, Peggy, Sandra Kerbel, and Sandra Dudley 1981 Glueck, Sheldon and Eleanor Glueck Gora, Joann Gennaro 1934 1982 Gordon, Linda 1988 Greer, Germaine Griffin, Susan Haft, Marilyn G. 1970 The Female Eunuch. New York: McGraw-Hill. 1979 Rape: The Power of Consciousness. San Francisco: Harper & Row. Women in prison: Discriminary practices and some legal solutions. In Susan Datesman and Frank R. Scarpitti (eds.), Women, Crime, and Justice. New York: Oxford University Press. 1980 SIMPSON Hagan, John, A.R. Gillis, and John Simpson 1985 The class structure of gender and delinquency: Toward a power control theory of common delinquent behavior. American Journal of Sociology 90:1151-1l78. Hagan, John, John Simpson, and A.R. Gillis The sexual stratification of social control: A gender-based perspective on crime and delinquency. British Journal of Sociology 30:25-38. Class in the household: A power-control theory of gender and delinquency. American Journal of Sociology 92:788-816. Violence and the Social Control of Women. Feminist Issues 1 : 2 9 4 6 . 1979 1987 Hanmer, Jalna Harris, Anthony R. 1981 1977 Sex and theories of deviance: Toward a functional theory of deviant type- scripts. American Sociological Review 42:3-16. The unhappy marriage of Marxism and feminism: Toward a more progressive union. Capital and Class (Summer): 1-1 3. Women in constraints. In S.K. Mukherjee and Jocelynne A. Scutt (eds.), Women and Crime. Sydney: Australian Institute of Criminology with Allen and Unwin. Hartman, Heida 1979 Hartz-Karp, Janette 1981 Heide, Wilma Scott 1974 Feminism and the “fallen woman”. Criminal Justice and Behavior 1~369-373. Heidensohn, Frances 1968 1985 Women and Crime. London: Macmillan. The deviance of women: A critique and an enquiry. British Journal of Sociology 19:160-175. Hill, Gary D. and Elizabeth M. Suva1 1988 Women, race, and crime. A revised version of a paper presented at the annual meeting of the American Society of Criminology, Chicago. Hindelang, Michael 1981 Variations in sex-race-age-specific incidence rates of offending. American Sociological Review 46:461-474. Feminism: A movement to end sexist oppression. In Anne Phillips (ed.), Feminism and Equality. Oxford: Basil Blackwell. The value of quantitative methodology for feminist research. In Gloria Bowles and Renate Duelli Klein (eds.), Theories of Women’s Studies. Boston: Routledge & Kegan Paul. The incompatible menage a trois: Marxism, feminism, and racism. In Lydia Sargent (ed.), Women and Revolution. Boston: South End Press. White promotion, black survival. In Gloria I. Joseph and Jill Lewis (eds.), Common Differences: Conflicts in Black and White Feminist Perspectives. Boston: South End Press. Hooks, Bell 1987 Jayarate, Toby Epstein 1983 Joseph, Gloria I. 1981a 1981b FEMINIST THEORY, CRIME, AND JUSTICE 627 Joseph, Gloria I. and Jill Lewis (eds.) Common Differences: Conflicts in Black and White Feminist Perspectives. Boston: South End Press. 198 1 Keller, Evelyn Fox 1982 Feminism and science. In Nannerl 0. Keohane, Michele Z. Rosaldo, and Barbara C. Gelpi (eds.), Feminist Theory. Chicago: University of Chicago Press. Klein, Dorie 1973 1981 The etiology of female crime: A review of the literature. Issues in Criminology 8:3-29. Violence against women: Some considerations regarding its causes and its elimination. Crime and Delinquency 27:64-80. The Philosophy of Moral Development. San Francisco: Harper & Row. 1982 Respectable women and the law. The Sociological Quarterly 23:221-234. 1984 Kohlberg, Lawrence Kruttschnitt, Candace 1981 Sex and criminal court dispositions: The unresolved controversy. Journal of Research in Crime and Delinquency 21 :213-232. Kuhn, Thomas 1970 The Structure of Scientific Revolutions. 2nd ed. Chicago: University of Chicago Press. Laub, John and M. Joan McDermott An analysis of serious crime by young black women. Criminology 23:81-98. Black women offenders and criminal justice: Some theoretical considera- tions. In Marguerite Warren (ed.), Comparing Female and Male Offenders. Beverly Hills, Calif.: Sage. 1985 Lewis, Diane 198 1 MacKinnon, Catherine A. 1979 The Sexual Harassment of Working Women. New Haven: Yale University Press. 1982 Feminism, Marxism, method, and the state: An agenda for theory. In Nannerl 0. Keohane, Michele Z. Rosaldo, and Barbara C. Gelpi (eds.), Feminist Theory, Chicago: University of Chicago Press. Female Crime and Delinquency. Tuscaloosa: University of Alabama Press. Black female homicide in the United States. Paper presented at the Conference on Black Homicide and Public Health, Baltimore. Mann, Coramae Richey 1984 1987 Martin, Del Miles, Maria 1976 Battered Wives. New York: Pocket Books/Simon & Schuster. 1983 Toward a methodology for feminist research. In Gloria Bowles and Renate Duelli Klein (eds.), Theories of Women’s Studies. Boston: Routledge & Kegan Paul. Street Woman. Philadelphia: Temple University Press. Miller, Eleanor M. 1985 628 SIMPSON Millett, Kate Mitchell, Juliet 197 1 Sexual Politics. London: Rupert Hart-Davis. 1971 Woman’s Estate. New York: Random House. Moyer, Imogene L. 1985 The Changing Roles of Women in the Criminal Justice System: Offenders, Victims, and Professionals. Prospect Heights, Ill.: Waveland Press. Police processing of female offenders. I n Lee H. Bowker (ed.), Women and Crime in America. New York: Macmillan. Moyer, Imogene L. and Garland F. White 1981 Mukherjee, S.K. and R.W. Fitzgerald 1981 The myth of rising female crime. In S.K. Mukherjee and Jocelynne A. Scutt (eds.), Women and Crime. Sydney: Australian Institute of Criminology with Allen and Unwin. Mukherjee, S.K. and Jocelynne A. Scutt (eds.) 1981 Women and Crime. Sydney: Australian Institute of Criminology with Allen and Unwin. Naffine, Ngaire 1988 Female Crime: The Construction of Women in Criminology. Boston: Allen and Unwin. Nagel, Ilene H. 1981 Sex differences in the processing of criminal defendants. In A. Morris and L. Gelsthorpe (eds.), Women and Crime. Cambridge: Cambridge Institute of Criminology. The legal/extra-legal controversy: Judicial decisions in pretrial release. Law and Society Review 17:481-515. Double standard of American justice. Society 9:18-25, 62-63. 1983 Nagel, Stuart and Lenore J. Weitzman Oakley, Ann Pagelow, Mildred 1972 1981 Subject Women. New York: Pantheon. 1981 Sex roles, power, and woman battering. In Lee H. Bowker (ed.), Women and Crime in America. New York: Macmillan. Pateman, Carol 1987 Feminist critiques of the public/private dichotomy. In Anne Phillips (ed.), Feminism and Equality. Oxford: Basil Blackwell. 1987 Feminism and Equality. Oxford: Basil Blackwell. Phillips, Anne (ed.) Plenska, Danuta 1980 Women’s criminality in Poland. In Curt Taylor Griffiths and Margot Nance (eds.), The Female Offender. Criminology Research Centre. Burnaby, B.C.: Simon Fraser University. Rafter, Nicole Hahn 1985 Partial Justice: Women in State Prisons, 1800-1935. Boston: Northeastern University Press. FEMINIST THEORY, CRIME, AND JUSTICE 629 Rafter, Nicole Hahn and Elena Natalizaia 198 1 Marxist feminist: Implications for criminal justice. Crime and Delinquency 27:81-98. Rasche, Christine 1974 The female offender as an object of criminological research. Criminal Justice and Behavior 1:301-320. Experimental analysis: A contribution to feminist research. In Gloria Bowles and Renate Duelli Klein (eds.), Theories of Women’s Studies. Boston: Routledge & Kegan Paul. Reinhartz, Shulamit 1983 Reiss, Albert J., Jr. and Albert P. Biderman 1980 Data Sources on White-collar Law-Breaking. National Institute of Justice. Washington, D.C.: U.S. Department of Justice. Compulsory heterosexual and lesbian existence. Signs 5:63 1-660. Gender and perceived chances of arrest. Social Forces 59:1182-I 199. The fear of rape: A study in social control. Journal of Social Issues Rich, Adrienne Richards, Pamela and Charles R. Tittle Riger, Stephanie and Margaret T. Gordon 1980 1981 1981 37:71-92. Sanday, Peggy Reeves 1981 The socio-cultural context of rape: A cross-cultural study. The Journal of Social Issues 37:5-27. The crime of precocious sexuality: Female juvenile delinquency in the progressive era. Harvard Educational Review 48:65-94. Women in elite deviance: A grounded theory. Paper presented at the annual meeting of the American Society of Criminology, Montreal. Caste, class, and crime: Violence and the disenfranchised black female. Revised version of a paper presented at the annual meeting of the American Society of Criminology, Chicago. Schlossman, Steven and Stephanie Wallach 1978 Simpson, Sally S. 1987 1988 Simon, Rita Smart, Carol 1975 Women and Crime. Lexington, Mass.: D.C. Heath. 1976 Women, Crime and Criminology: A Feminist Critique. London: Routledge & Kegan Paul. Equity and discretionary justice: The influence of race on police arrest decisions. Journal of Criminal Law and Criminology 75:234-249. 1988 Inessential Woman: Problems of Exclusion in Feminist Thought. Boston: Smith, Douglas, Christy Visher, and Laura Davidson 1984 Spelman, Elizabeth V. Beacon. The effect of race on sentencing: A re-examination of an unsettled question. Law and Society Review 16:71-88. Spohn, Cassia, John Gruhl, and Susan Welch 1982 630 SIMPSON Stacey, Judith and Barrie Thorne Stanko, Elizabeth A. 1985 The missing feminist revolution in sociology. Social Problems 32:301-3 16. 1985 Intimate Intrusions: Women’s Experience of Male Violence. London: Routledge & Kegan Paul. Crime and the contemporary woman: An analysis of changing levels of female property crime, 1960-75. Social Forces 57:566584. Patterns of female property crime, 1960-1975: A postscript. In Lee H. Bowker (ed.), Women and Crime in America. New York: Macmillan. Organization properties and sex-segregation in the underworld: Building a sociological theory of sex differences in crime. Social Forces 61:1010-1043. Sex differences in urban arrest patterns, 1934-79. Social Problems 29:37-50. Behind Closed Doors: Violence in the American Family. Garden City, N.Y.: Anchor/Doubleday. A “torrent of abuse”: Crimes of violence between working-class men and women in London, 1840-1875. Journal of Social History 11:328-345. Steffensmeier, Darrell J. 1978 1981 1983 Steffensmeier, Darrell J. and Michael J. Cobb Straus, Murray A., Richard J. Gelles, and Suzanne K. Steinmetz 1981 1980 Tomes, Nancy 1978 Tracy, Paul E., Marvin E. Wolfgang, and Robert M. Figlio Tronto, Joan C. In press Delinquent Careers in Two Birth Cohorts. New York: Plenum Publishing. n.d. “Women’s morality”: Beyond gender difference to a theory of care. Unpublished paper, Hunter College of the City University of New York. Cited in Gloria I. Joseph and Jill Lewis (eds.), Common Differences: Conflicts in Black and White Feminist Perspectives. Boston: South End Press. Truth, Sojourner 1851 Visher, Christy 1983 Gender, police arrest decisions, and notions of chivalry. Criminology 2 15-28, Wellman, David 1977 Portraits of White Racism. New York: Cambridge University Press. Wilson, James Q. and Richard J. Herrnstein Wilson, Nanci Koser 1985 Crime and Human Nature. New York: Simon & Schuster. 1985 Witches, hookers, and others: Societal response to women criminals and victims. Paper presented at the annual meeting of the American Society of Criminology, San Diego. The victim in a forcible rape case: A feminist view. In Lee H. Bowker (ed.), Women and Crime in America. New York: Macmillan. Wood, Pamela 1981 Young, Vernetta D. 1980 Women, race, and crime. Criminology 18:2&34. FEMINIST THEORY, CRIME, A N D JUSTICE 63 1 Zietz, Dorothy 1981 Women Who Embezzle or Defraud: A Study of Convicted Felons. New York: Praeger. Sally S. Simpson is an Assistant Professor of Criminal Justice and Criminology at the University of Maryland, College Park. In addition to her interest in issues of gender and crime, she is currently involved in studies of organizational change and its effects on the ethical dimensions of decision-making. 
work_7li5lt5dp5ab7f7nfjg3ywg4ti	----	1 "This is the author's accepted manuscript. The final published version of this work (the version of record) is published by Taylor and Francis in Annals of the Association of American Geographers 2nd January 2018. This work is made available online in accordance with the publisher's policies. Please refer to any applicable terms of use of the publisher." Spatializing climate justice: Justice claim-making and carbon-pricing controversies in Australia Ian Bailey School of Geography, Earth and Environmental Sciences, Plymouth University Abstract: Recent years have seen significant academic attention to conceptualizing climate justice and how its ideas might be mobilized in political debates on climate policy. This article contributes to these debates by advancing two arguments. The first concerns the need for greater examination of how climate justice co-exists and competes with more established political and justice considerations during the negotiation of climate policies. I argue that distinguishing analytically between normative interpretations of climate justice and justice claims made by parties affected by climate change or by mitigation or adaptation policies provides fertile ground for deepening understanding of the multivalent and relational nature of climate justice and confronting challenges to its incorporation into climate responses. The second argument concerns the importance of exploring of how proponents and opponents of climate action strive to develop “spatial anchors” for justice claims to increase their legitimacy in policy debates. Based on analysis of carbon pricing controversies 2 in Australia, the article illustrates how supporters of carbon pricing initiatives stressed international justice issues, while opponents mobilized multi-scalar and multivalent international, national, regional and local justice narratives to gain traction for their arguments. The article concludes by calling for further investigation of the multi-valence of climate justice and of how climate justice might be spatially represented to advance its leverage in political debates on climate policy. Keywords: climate justice, justice claims, carbon pricing, spatial representation, Australia Introduction Justice has formed a major theme in debates on climate change ever since climate issues first began to gain sustained political attention in the 1980s (Meyer and Roser 2010; Bulkeley et al. 2013; Bulkeley, Edwards and Fuller 2014). Over this period, substantial scholarly and political attention has been directed towards conceptualizing the forms of rights, responsibilities, procedures, and distributional outcomes that just responses to climate change might entail and how these might be applied to different issues and social and spatial settings (Backman and Page 2008; Parks and Roberts 2008; Vanderheiden 2008; Roberts and Parks 2009; Bulkeley et al. 2013). These endeavors have led to appreciable progress in understanding the ethical implications and dilemmas raised by climate justice (Shue 1993; Klinsky and Dowlatabati 2009; Klinsky 2015). However, progress towards integrating justice into climate-related decision-making 3 remains faltering. Deeper interrogation of how climate justice is constructed and contested during practical initiatives to mitigate and adapt to climate impacts--where the cross-cutting challenges of climate change for existing political, economic, and social systems are often painfully and acrimoniously manifested--thus remains a priority if climate justice is to progress beyond being an admirable but largely abstract concept (Greer 2014). So far, efforts by climate-justice scholars to address this challenge have been directed mainly at developing normative proposals on how to integrate climate justice into political decision- making through ideas such as contraction and convergence and ecological debt repayment (Gardiner 2006; Page 2008; Roberts and Parks 2009; Gardiner 2011). In contrast, detailed empirical studies of how climate justice contends with other, often more established, justice considerations during the negotiation and implementation of climate policies remain relatively scarce. Without greater understanding of the practical relationship between climate justice and climate policy, however, progress in integrating climate justice into political decision-making on climate issues is likely to remain stymied. This article responds to this agenda by examining how justice is constructed and expressed within debates on national climate policy. National climate politics has been a relatively underexplored area of climate-justice scholarship compared with the international, sub- national and city scales (e.g. Parks and Roberts 2008; Peet and Harrison 2012; Bulkeley et al. 2013; Bulkeley, Edwards and Fuller 2014). However, the importance of nation states to climate policy-making and the mediation of climate justice trade-offs suggests that the national politics of climate justice merit more sustained attention. Two main arguments are proposed. The first concerns a need for deeper examination of how climate justice co-exists and competes with more established political and justice considerations within climate 4 policy. Preoccupation with conceptualizing or applying climate justice principles risks treating climate justice as somehow removed from other political and justice interests. Allied to this is the importance of developing clearer analytical distinctions between normative interpretations of climate justice (its “rightful” role in climate policy) and justice claims, where individuals or groups use justice arguments sincerely or tactically to gain recognition for their interests (Backman and Page 2008; Klinsky 2015). When examining real-world climate politics, climate-justice scholarship must remain alert to the multiple climate and non-climate justice claims mobilized to gain approval for standpoints that might not enjoy support unless attached to some form of justice claim. As such, the first strand of enquiry focuses on how competing multivalent justice claims, articulating diverse values and preferences, shape debates on climate policy (Fraser 2001; Klinsky 2015). The second argument concerns the need for further exploration of the tactics used by different actors to gain political legitimacy for their justice claims. Such tactics might include mobilizing widely-accepted discourses, such as stressing technological innovation or carbon markets over lifestyle constraints (Dryzek 2013), utilization of the media (Gavin 2009), or the personalization of issues by identifying climate-related victims and perpetrators (DiFrancesco and Young 2011). Another tactic of keen interest to geographers is the attachment of socio-spatial representations to justice claims--the linking of justice claims to particular groups located in specific places--to enhance the status of claims in debates on climate action (Walker 2009; Klinsky 2015). For instance, corporations might influence climate policy to a degree by highlighting effects on competitiveness but may boost their influence further by aligning their interests with accepted national concerns about economic growth, or with more geographically-rooted issues, such as risks to employment in regions 5 that depend on the sector if emissions constraints are imposed. Such spatial anchoring of justice narratives provides a powerful technique for personalizing justice claims and making them more relevant and urgent by affiliating them with politicians’ electoral incentives, especially if they are taken up by media outlets and erode public support for climate action (Harrison and Sundstrom 2010). These themes of multivalent justice claims and their socio-spatial anchoring are explored by examining recent debates on carbon pricing in Australia, where claims about national regional and local socio-economic injustices have been defining features of industry, political and public opposition to carbon pricing. Among the prominent claims have been the injustices of introducing carbon pricing in a minor contributor to global emissions like Australia without action by industrializing countries, and discourses stressing the unfairness of imposing carbon pricing on resource-dependent regions in rural Australia, and on households across the country. These socio-spatial injustice claims overshadowed government arguments about Australia’s responsibility to contribute to global mitigation efforts and representations of climate change as a “great moral challenge” (Rudd 2008), and led ultimately to the repeal of carbon pricing in Australia in 2014. Understanding how such socio-spatial justice claims are mobilized and influence climate policy forms a key but largely overlooked dimension of research on justice claim-making in climate politics. The following section considers how climate justice has been articulated, exploring how climate-related rights, responsibilities, distributional equity, and procedural fairness interact and are underpinned by the recognition of justice claims. Within this discussion, emphasis is placed on distinctions between normative views of climate justice and justice claims 6 recognized within debates on climate change, and how claims may be advanced through socio-spatial representations that connect issues and interests to identifiable places and people. The third section outlines the history of carbon pricing in Australia before the fourth section examines how politicians, industry and the media used international, national, regional, and local justice anchorings justice to arouse support or opposition to carbon pricing. The final section explores theoretical and policy implications for understandings of climate justice. Climate justice in context Over the last two decades, scholars across a range of disciplines have explored the principles of climate justice and the justice dilemmas embedded in decision-making on climate policy (Shue 1993; Gardiner 2006; Page 2008; Klinsky and Dowlatabadi 2009; Bulkeley, Edwards and Fuller 2014). While no single justice framework for dividing burdens has emerged (Klinsky, Dowlatabadi and McDaniels 2012), broad agreement exists on the core goals of achieving fairer distributions in rights and responsibilities related to the causes and effects of climate change, spanning mitigation, adaptation, and loss and damages for climate-related harms (Page 2008; Bulkeley et al. 2013). These, however, raise complex questions about temporal, social, and spatial unevenness in greenhouse-gas emissions and vulnerability to the effects of climate change (Hornborg 1998; Gardiner 2006; 2011), while further questions surround procedures for addressing grievances and ensuring representation both for groups affected by climate change and those impacted by climate policies (Lind and Tyler 1988; Shue 1993; Kuehn 2005). MacCoun (2005) and Gross (2007) argue that procedural justice is particularly important where uncertainty exists on what 7 constitutes fair aggregate or distributive outcomes to encourage participation by all relevant parties and open debate on the ethical dimensions of climate decision-making1. While rights, responsibilities, representation, and fair procedures provide the conceptual foundations for specifying more detailed justice principles--such as causal responsibility, preferential treatment based on need, and equity of burdens or effort (Singer 2002; Klinsky and Dowlatabadi 2009)—Bulkeley, Edwards and Fuller (2014, 33) also stress the need for investigation of the contexts in which framings of justice are created. Rather than just analysing principles by which climate justice might operate, they call for sustained empirical examination of the political economies, power relations, and opportunity structures influencing how climate justice is conceived, applied and contested. Central to this, they maintain, is recognition, both for groups as rightful stakeholders entitled to be represented in discussions, and for certain arguments to be considered as justifiable (also Gardiner 2006; Grasso 2010; Schlosberg 2012). As Schlosberg (2004) emphasizes, if legitimate groups or concerns are marginalized by those making executive decisions, procedural fairness, and achieving fair outcomes can be critically compromised. Bulkeley, Edwards and Fuller (2014) conceptualize recognition as forming the critical underpinning of climate rights, responsibilities because of its central role in determining which issues and groups are considered or sidelined in justice debates. They additionally use the metaphor of a prism to emphasize interconnections between the different facets of climate justice and how ideas refract as solutions to justice issues are debated. For instance, recognition of certain rights creates typically creates new responsibilities for other actors that may require new forms of recognition and procedural mechanisms to accommodate 8 redistributions of resources (Shue 1993). In most instances, these interactions require negotiation, leading to modified demands and procedures to find acceptable solutions (Page 2008; Parks and Roberts 2008). This multivalent view of climate justice emphasizing recognition as critical to achieving fair outcomes simultaneously draws attention to distinctions between judgements about what rights, responsibilities, distributions, and procedures should be recognized and those that are accepted in climate debates. Importantly, this shifts the analytical lens from examining recognition chiefly in terms of the ethical and empirical strength of claims towards the capability of individuals and groups to place their values and interests on agendas (Gavin 2009; Walker and Day 2012). Two key considerations arise from this. The first concerns the importance of distinguishing between Rawlsian justice principles and justice claims, where groups seek support for their interests or preferences by framing them as justice concerns (Klinsky 2015). Both entail constructions of distributional and procedural fairness, but focusing on justice claims foregrounds the political reality that responses to climate issues usually impact other interests that enjoy some societal acceptance. These competing claims can take non-commensurable forms and be challenging to adjudicate on ethical grounds (Fiske and Tetlock 1997). Rawls (1972, 340) himself observed that there are often no obvious rules for prioritizing between competing obligations, and doubted “whether a systematic solution formulating useful and practical rules is possible”. Many authors have, nevertheless, explored ethically-defensible ways to address justice dilemmas on climate action. Notable examples include: contraction and convergence that apportions responsibilities through differentiating between luxury and subsistence 9 emissions (Shue 1993; 1999); repayment of ecological debts from developed countries to developing countries caused by financially and ecologically unequal trade relations (Roberts and Parks 2009); fault-based and ability-to-pay approaches (Shue 1993); and distributive justice based on equitable burdens or effort (Heyward 2007; Klinsky and Dowlatabadi 2009). Scrutiny of these approaches is beyond the scope of this article. However, all focus on integrating distributive justice into existing political and economic systems rather than empirically examining how power relations within these systems influence how climate justice competes with other justice considerations to shape climate policy. As such, they maintain a normative rather than an explanatory approach to analyzing political deliberations on the ethics of climate action. The second consideration accordingly focuses on the politics of arbitrating between justice claims. Traditional realist perspectives often downplay the role of justice and emphasize self-interested bargaining and power and resource differentials as determinants of political bargaining within and between nations (Okereke 2010). In national policy contexts, political economy perspectives typically stress access to politicians and officials, finance, media campaigns, and public support as key political resources used by non-government actors to influence decision-makers’ incentives (Pralle 2009; Harrison and Sundstrom 2010). More constructivist writers argue, however, that climate policy outcomes cannot be understood solely through the lenses of power and material interests, and stress the devices used to promote standpoints, including the use of discourses to construct interpretations of the nature of environmental problems and the consequences of different policy solutions (Dryzek 2013). Although not the only discursive framing used to steer the normative context of decision-making on climate change (e.g. ideas of ecological modernization), 10 justice narratives hold particular potency because of their links with instinctive societal values concerning fair or unfair treatment (Walker and Bulkeley 2006). While climate justice can be constructed to appeal to many ethical concerns, the main focus in this article is the use of socio-spatial representations to increase the authenticity of justice claims and their connections with other societal priorities. This affiliation of justice claims to identifiable peoples and places resonates with Opotow's theory of moral exclusion, that claims often receive less weight when interpreted as distant, non-essential, and competing with existing deep-core values and preferences (Klinsky, Dowlatabadi and McDaniels 2012). Pinpointing climate victims and perpetrators--such as floodplain populations in Bangladesh and large U.S. fossil-fuel companies--are obvious examples of spatialized justice arguments in climate advocacy. However, drawing boundaries that distance climate impacts and attribution temporally or spatially but invoke immediacy and proximity in the adverse effects of climate policy can equally generate senses of injustice around policies. Industry groups may also counteract being judged as undeserving claimants by projecting their interests as justice considerations affecting more worthy plaintiffs, such as communities and regions that depend on the sector, while giving the justice claim greater geographical rootedness (Hafer and Olson 2003). Further socio-spatial anchoring of justice claims may invoke justice failings by others. Classic usages of such narratives include: uneven historical contributions to current greenhouse-gas concentrations by the global North and South (Shue 1993); rapid emissions growth among industrializing countries; and the incapacity of low-lying island states to mitigate climate change relative to their vulnerability (Meyer and Roser 2010). Such comparisons can again 11 have multiple motivations, but many countries have portrayed climate change as a collective-action problem to stress the unfairness of accepting excessive mitigation burdens (Bulkeley and Newell 2010). Similarly, corporations and governments may advocate level playing fields in the global economy to defend weak climate measures, whilst unequal burden sharing between rural and urban areas may be cited in debates on siting renewable- energy technologies (Cowell, Bristow and Munday 2011). Multivalence and the socio-spatial anchoring of justice claims thus form critical themes in debates on climate justice. The first is underscored by the reality that, howsoever conceived, climate justice is obliged to compete with other ideas and interests that often incorporate some justice claim, making trade-offs integral to climate decision-making (Klinsky, Dowlatabadi and McDaniels 2012). Similarly, whilst justice claims can utilize multiple framings, the use of socio-spatial representations holds significant potential for legitimating ideas and interests and moving beyond generic principles to situated understandings (Hillman 2006). With this in mind, the following sections summarize the research strategy and the recent history of carbon pricing in Australia before considering how multivalent and spatialized justice claims have influenced policy debates. Research Strategy The first phase of research was conducted in 2010 and analyzed the political arguments and tactics used to debate Australia’s first proposed carbon pricing mechanism, the Carbon Pollution Reduction Scheme (CPRS). The second took place in 2015 and focused on debates on the introduction and repeal of the Clean Energy Future Act Carbon Pricing Mechanism (CPM). Each phase involved analysis of official documents, media reporting and 12 independent commentaries on carbon pricing (550 and 183 documents in phases one and two respectively), and was complemented by semi-structured interviews with politicians, government officials, and industry, academia, non-government organization, and consultancy representatives involved in developing or analyzing the CPRS and/or CPM. Thirty-one interviews were conducted in phase one, with a further twenty interviews in phase two. A summary of the respondent profile is given in Table 1. Texts and interview transcripts were subjected to qualitative content analysis, avoiding affixing pre-conceived categories to the arguments mobilized during the carbon-pricing debates; instead categories emerged inductively from the data (Hsieh and Shannon 2005). Categories were then grouped iteratively into related ideas, drawing on recurring themes in accounts and texts to produce researcher descriptions of the main themes arising from the research (Flowerdew and Martin 2005). Although the research explored the broader arguments and tactics used to debate carbon pricing in Australia, justice emerged as a prominent theme, illustrated by frequent uses of terms such as fairness, inequity, and distribution. Numerous references to international, national, regional, and local issues within these arguments in turn prompted further investigation of how justice was discursively and spatially represented carbon pricing opponents and supporters. Carbon pricing in Australia Australia was an early signatory to the Kyoto Protocol but has struggled to take decisive action to reduce its greenhouse-gas emissions. Most analysts attribute this to the political influence of its major extractive and energy-intensive industries and strong political 13 competition between the Labor Party, Liberal-National Coalition and the Greens on whether and/or in what form to introduce carbon pricing (Pearse 2009; Burgmann and Baer 2012; Christoff 2013; Crowley 2013; Rootes 2014). Under Kyoto, Australia committed to restricting its emissions growth to eight percent above 1990 levels by 2008-2012, but in 2002 the Coalition led by John Howard followed the U.S. in refusing to ratify the Protocol, arguing that it was against Australia’s national interest (Crowley 2007; Lawrence 2009). Throughout the 1990s and 2000s, Australian climate policy instead consisted mainly of voluntary measures that avoided binding emissions targets and sanctions, and it was only in 2007 that Howard commissioned a prime ministerial task force to investigate emissions trading in response to pressure from Labor, which was campaigning for carbon pricing in the 2007 federal election campaign (Rootes 2008). Following a landslide victory, Labor’s new prime minister, Kevin Rudd, made Kyoto ratification his government’s first official act and began preparing a national emissions trading scheme, the Carbon Pollution Reduction Scheme (CPRS), drawing on recommendations made in the first Garnaut Review commissioned by Rudd to study the effects of climate change on Australia and policy options to reduce Australia’s emissions (Garnaut 2008). However, the CPRS model was heavily criticized by the Coalition and industry as damaging to Australia’s energy-intensive trade-exposed industries (EITEIs) without comparable measures by trading partners in Asia and North America, and by the Greens for over-generous compensation to EITEIs. After the CPRS was rejected by the Senate in August 2009, Rudd sought support for the legislation from the Coalition leader, Malcolm Turnbull, who supported carbon pricing but sought greater assistance for EITEIs. 14 However, following Turnbull’s ousting by carbon-pricing opponent Tony Abbott in December 2009, the CPRS again failed in the Senate and was shelved in 2010 (Bailey et al. 2012; Burgmann and Baer 2012; Crowley 2013). Following the CPRS’s failure and other policy debacles, Rudd was replaced by his deputy, Julia Gillard, in June 2010. Gillard wanted to secure her own mandate and called an election for August 2010. Although carbon pricing remained on the government’s agenda, Gillard sought to counteract Coalition successes on the CPRS by promising there would be “no carbon tax under a government I lead”. The 2010 election led to a hung parliament, with the government relying on independents for a majority in the House of Representatives. Additionally, the Greens held the balance of power in the Senate, giving the minority government an unexpected opportunity to introduce carbon pricing by renegotiating with the Greens (Crowley 2013). The Clean Energy Act was adopted in November 2011 despite continued Coalition opposition, creating the Carbon Pricing Mechanism (CPM), an emissions trading scheme covering 300 of Australia’s largest polluters. To secure the Greens’ support, Gillard introduced an initial fixed price of AUS$23 per tonne of carbon (approximately $23.30, December 2011 exchange rate) between 2012 and 2015 before it moved towards flexible pricing by 2018 (Caripis et al. 2011)2. The fixed price was also intended to give industry certainty about their financial exposure but was portrayed as a thinly-disguised tax that betrayed Gillard’s pre-election promises. The Clean Energy Act incorporated further measures to ease burdens on industry and households: a Jobs and Competitiveness Program giving EITEIs free allowances; an Energy Security Fund to help energy generators move 15 towards low-carbon energy; a Clean Technology Program to promote energy-efficient technologies; and a Clean Energy Household Assistance Package of payments, increased income tax thresholds, and tax benefits for low- and middle-income families (Australian Government 2011). However, EITEIs continued to attack the CPM for damaging competitiveness, while Tony Abbott made a “blood oath” to repeal the carbon tax if elected (Gratton and Wroe 2011). Despite Gillard’s replacement as prime minister by her predecessor, Kevin Rudd, in June 2013 and attempts to regain business and voter confidence by announcing that flexible pricing would be introduced a year earlier than planned, the Coalition won the September 2013 election, and in July 2014, Abbott repealed the CPM after securing the support of the Palmer United Party3 in the Senate (Rootes 2014). Justice Claims in Carbon-Pricing Policy in Australia Most accounts of Australian climate policy stress structural features of its political economy (the country’s fossil-fuel dependence) and the industry lobbying power as explanations for Australia’s difficulties in adopting more ambitious mitigation policies (Crowley 2007; Pearse 2009; Rootes 2011; 2014). Although important, these factors provide limited insight on how non-government actors influenced policy, for instance, how industry gained political support for commercial arguments by making them resonate with public or opposition-party concerns. Christoff (2013, 349) provides some insight on this by examining how scientific, ethical, economic, technological, political/legal, and everyday life discourses contribute to the constitution of national climate discourse complexes that “frame and discipline climate debate and the articulation of a national climate policy regime”. Christoff argues that 16 domination of Australia’s climate discourse complex by economic narratives has diminished the influence of scientific, ethical, and other discourses4 on carbon pricing. However, this still underemphasizes limits on the traction of economic pleading and focuses on aggregate patterns in Australian national climate politics rather than the multiple discourses--including ethical discourses about fair treatment to legitimate commercial arguments--that shape broader discourse complexes, empowering or disempowering actors within national climate-policy debates. Before analysing how different justice claims were mobilized and spatialized in debates on carbon pricing in Australia, two points should be stressed. First, the analysis seeks to understand how multivalent socio-spatial constructions of justice have shaped Australian debates on carbon pricing, and so avoids value judgements about the claims made. The second concerns the implicit and often unconscious nature of many justice claims. Arguments about the CPRS and CPM frequently contained justice overtones, such as stressing effects on vulnerable groups, but did not employ justice terminology explicitly or in a premeditated way (Klinsky 2015). Alternatively, some actors invoked justice arguments tactically by projecting their political or commercial interests as justice concerns for other parties to elicit greater sympathy without revealing the preferences and judgements upon which the viewpoints in question were based (Howarth 2009; Dryzek 2013). The core argument within this section is that most opponents of carbon pricing saw the CPRS and CPM as genuinely unjust and/or contrary to their commercial or political interests, but appreciated the fundamental arguments for climate action or the untenability of directly challenging government framings of just climate responses by Australia. Opposition 17 consequently centered on highlighting alternative sets of rights, responsibilities, distributive, or procedural issues. Although many such framings drew on older economic discourses about short-term economic security and its allied welfare benefits (Christoff 2013), they propagated multivalent definitions of what fair rights, responsibilities, distributions, and procedures meant within Australia climate policy to contest mainstream government interpretations. A key device in developing these alternative justice framings was to stress the effects of carbon pricing across a range of recognizable spatial jurisdictions within Australia, from the national to the local, to broaden the range and credibility of injustices employed to oppose carbon pricing and to characterize identifiable victims in order to press for recognition of their rights. International and national justice framings Fairness in the distribution of mitigation responsibilities between Australia and other countries has formed a critical theme throughout Australian debates on carbon pricing. The Howard government’s dominant narrative centered on drawing normative distinctions between imposing burdens on Australia and the climate responsibilities of other countries. This was expressed forcibly when Howard announced that Australia would not ratify the Kyoto Protocol without comparable commitments by major developing countries because he was not prepared to “be party to something that destroys jobs and destroys the competitiveness of Australian industry” (The Age 2003). Such statements earned Howard the reputation of presiding over a decade of neglect on climate change by hawking justice interpretations that pitched global climate justice against national economic concerns and externalized accountability for his government’s reliance on voluntary mitigation (Crowley 2007). 18 The Labor government took a starkly different standpoint. Kevin Rudd repeatedly described climate change as: “the greatest moral, economic and social challenge of our time”, arguing that an affluent country like Australia had an ethical duty to reduce emissions for well-being of other countries threatened by climate change (Rudd 2008). Similarly, the Garnaut Review stressed that the: “problems of unmitigated climate change will be for all humanity” (Garnaut 2008, 592) while also emphasizing the benefits to Australia’s national interest to take action to counter climate risks to the country and to lead in the international marketplace of initiatives to decarbonize the global economy. However, Garnaut did also seek to address distributive issues within Australia by arguing, among other things, for trans-national sectoral agreements for iron and steel, aluminum, chemicals, cement, and paper and pulp to overcome industry relocation and carbon leakage caused by the unequal application of carbon pricing in other countries producing emissions-intensive internationally-traded goods (Garnaut 2008). Despite such efforts, the CPRS and CPM debates steered towards a more multivalent view of distributive justice, emphasizing short-term economic and social impacts, that diluted the traction of global burden-sharing arguments. Although there was broad support from an early stage for global action to counteract fairness concerns, the CPRS’ ambitious design (covering 75 percent of Australian emissions and all six Kyoto greenhouse gases compared with 45 percent coverage of carbon only in Europe) fueled impressions that “Australia was way out in front of other countries” (senior official). International distributive concerns were also fed by early reassurances from the government that “no Australian would be 19 worse off under the CPRS”. One official argued that this created “unrealistic expectations that hardened industry opposition when the CPRS legislation was released”. Further attempts were made to calm competitiveness concerns during the CPM debate when in 2011 the Gillard government instructed the Productivity Commission to assess the burdens of climate policy in other key economies, although it only analyzed energy generation and transport, and only covered competitive pressures affecting EITEIs indirectly (Productivity Commission 2011). Further, the CPM was introduced with the initial fixed price of AUS$23 ($23.30) per tonne of CO2-equivalent--at the time at parity with the EU carbon price--to broker a deal with the Greens, and to give certainty about industry’s liabilities until the market matured. However, any conciliatory effect from these measures foundered when the EU price collapsed in late 2011. One government official recalled being: “inundated with questions about why Australian companies were paying $23 per tonne and European companies were paying $23 per tonne”. Another dimension of international-national injustice narratives was the futility of carbon pricing because of Australia’s relatively modest contribution to global emissions. In his autobiography as opposition leader, Tony Abbott argued that Australia only accounted for one percent of global carbon emissions and that China’s annual increase in emissions could match Australia’s entire carbon output5. According to this logic, action by Australia without agreements by industrializing nations would damage industry but make limited difference to global emissions (Abbott 2009). Extending international comparisons beyond competitiveness (and resonating with Garnaut’s warnings about carbon leakage) shifted the debate further from Australia’s contribution to international environmental and social 20 climate justice towards one focused “almost entirely on domestic economic justice” (industry). Furthermore, framing Australia’s actions as futile diverted attention from ethical responsibilities Australia might have to reduce emissions and, instead, emphasized only the sacrificial elements of carbon pricing. Industry groups used further tactics to portray carbon pricing as an unjust contest between Australian and other national interests. These included a further spin on economic arguments stressing the contribution of resource-intensive sectors to Australia’s resilience to the 2008-2010 global recession and arguments that “what was good for coal was good for Australia” (official). Similarly, a 2013 Australian Industry Group report avoided contravening broader climate-justice concerns by not opposing carbon pricing outright while still promoting justice arguments about securing a fair deal for Australia. The report expressed support for market-based approaches but raised concerns about the CPM compared with carbon prices in other countries during challenging local and global economic conditions (Australian Industry Group 2013). Industry interviewees also recalled frustration at government negotiators comparing climate policies at a national level. As one industry representative argued: This approach was no good for understanding competitive pressures. A facility in one Chinese province may not face a carbon price despite there being a regional or national carbon price because there is a lot of shielding and discrepancy between the national and competitive level. Blanket approaches don’t work. Equally, imposing annual standard reductions in free 21 allowances to EITEIs cannot reflect real-life situations and is not responsive to market shifts. In response, industry associations submitted studies of pressures at the competitive gate comparing the climate policy burdens faced by individual competitor installations to add further dimensions to arguments that Australian companies were being treated unfairly at the international scale (industry). Regional justice and local mining communities While spatial binaries between national and global concerns were a recurring theme in justice claim-making by carbon-pricing opponents, the CPRS and CPM also prompted strident debates on regional justice that led to further targeting and broadening of the justice arguments used to oppose carbon pricing. Much of this focused on securing fair treatment for resource-dependent states like Western Australia and Queensland and mining communities across the country. Among the tactics used was to pinpoint specific regional effects. During the CPM debate, Barnaby Joyce, then Shadow Minister for Regional Australia, Regional Development and Local Government lambasted the government’s treatment of regional Australia: New South Wales [NSW] Treasury figures show that the carbon tax will lead to 31,000 lost jobs in NSW but over 26,000 of these would be in regional Australia, including 18,500 in the Hunter, 7,000 in the Illawarra and 1,000 jobs in the central West… If [the minister] wants to continue his ‘embrace the 22 challenge’ tour of regional Australia he needs to come clean [about] how they are meant to embrace the challenge of fewer employment opportunities… A carbon tax will clearly hurt regional Australia the worst. (Australian Conservative 2011) Industry lobbying also focused attention on specific communities by spotlighting issues facing individual facilities, including Northern power station in South Australia and the Portland and Kurri Kurri aluminum smelters in Victoria and New South Wales (industry and regulator). Although there was no suggestion this tactic was used cynically, it contributed to the diversity of justice arguments used by personalizing the impacts of carbon pricing to generate “victims and villains” stories. Because of regional concentrations in coal mining, the coal sector was particularly active in staking regional injustice claims (official), while regulators recalled energy companies threatening power failures in major cities because: “the carbon price would trigger a huge asset write-off on coal-based assets and a number of generators could go bankrupt”. The latter example offers an interesting demonstration of the growing multivalence of justice claim-making brought about by drawing “innocent bystanders” into the carbon- pricing debate through the idea that it would negatively affect every aspect of people’s lives in cities like Melbourne that rely on coal-fired electricity. Interviewees argued that portrayals of the government failing to protect coal-mining regions and power supplies did not reflect the intensity of consultations with industry or the sophisticated measures introduced to address distributive issues (see Behm (2015) for an insider account of consultations on the CPM). One academic nevertheless noted that a belief among officials 23 that a market instrument would automatically resolve distributive problems caused them to underestimate subnational issues. A senior ex-official and government advisor further recalled that, following consultations, the government often: “thanked associations then closed the door to focus on policy development”. This led to industry feeling marginalized from final decision-making because of the government’s preoccupation with gaining support from key political partners. As one consultant put it: “there was the odd brown-bag discussion, but the government didn’t see business as critical in getting the legislation through”… and this “aggravated industry anger towards the CPM where distributive issues remained unresolved”. In contrast, a senior negotiator argued that: “whatever we did, some sectors always tabled further demands and used Tony Abbott’s attacks on carbon pricing opportunistically to gain leverage”. One crucial feature enabling regional justice arguments to feature so prominently was that, unlike the EU ETS negotiations, the CPRS and CPM debates took place in the full media and political glare. One consultant argued that because that industry: “felt disenfranchised from decision-making, they used the media to present their issues as general voter concerns and to lobby individual electorates”. This tactic again proved potent because it played on longstanding resentment about the neglect of mining and other resource-dependent towns in regional Australia by political elites in Canberra, Sydney, and Melbourne (Botterill 2006; see Peet and Harrison 2012 for similar portrayals of urban-rural political dynamics in British Columbia). In this case, legacies of neglect found two expressions: uneven impacts of carbon pricing on regional households that experience higher car dependence, longer travel distances and more extreme climates; and direct challenges to livelihoods from the possible contraction or closure of major employers in the resources sector. The Australian 24 newspaper provided inflammatory reporting of this issue in a 2011 study for the Australian Coal Association (ACIL Tasman 2011): Explosive economic modelling warns that the carbon tax could force eight black coalmines to close, costing nearly 3000 jobs in regional NSW and more than 1100 jobs in Queensland in its first three years… Independent modelling commissioned by the Australian Coal Association warns that early mine closures could reach 18 within nine years… ACIL Tasman estimates that between 22,700 and 31,020 man-years of jobs will be forgone… Mr Hillman [executive director of the ACA] said: “These are real jobs, supporting real families in regional Australia”. (The Australian 2011, emphasis added). Bacon and Nash (2012) note that media coverage of the carbon-pricing debate exhibited journalistic endorsement across all newspapers of the national and regional economic benefits of coal mining and electricity generation but marked differences in reporting of the sectors’ climate impacts, a perception illustrated by coverage of impacts on marginal electorates, such as Townsville in Queensland, where mining provides around one-third of employment (Speck 2010). Contrasting assessments by the Climate Institute (2011) and other pro-carbon pricing groups, meanwhile, contributed to public perceptions of injustice surrounding the CPRS and CPM from alternative directions, as offering unjust compensation to EITEIs (academic). The characterization of issues and groups were recalled by one regulator involved in media communications: 25 When the CPM came out, it was terrible. We were forced into being very defensive; the media was taking a tabloid approach on cost and the idea that the prime minister lied about not introducing a carbon tax. There were also constant comparisons with actions elsewhere, this myth that Australia was leading the world and it was very difficult to cut through these arguments. But, if we didn’t engage with the media, the CPM would be even attacked even more, but however we tried, we had ‘shock jocks’ [populist radio commentators] and other press on our backs. One issue that struggled to command political attention because of such reporting, despite repeated efforts, was the justice implications of Australia’s vulnerability to climate impacts. The 2008 and 2011 Garnaut Reviews both placed strong emphasis on regional and national climate impacts to strengthen the case for carbon pricing, while Bureau of Meteorology reports routinely stressed threats to water availability, infrastructure, energy systems, urban areas, and terrestrial and marine ecosystems, including the Great Barrier Reef (Cleugh et al. 2011). Although this characterized climate change as an issue worthy of attention and certain areas as under threat, it did not translate into robust public support for carbon pricing (Pietsch and McAllister 2010), not least because of disputing by industry and opposition leaders of links between individual events and climate trends (senior official). As Prime Minister, Tony Abbott characterized reports linking the 2013 Sydney bushfires to climate change as “hogwash”, claiming Australia had always experienced fires and floods (The Guardian 2013a), a view supported by environment minister Greg Hunt (consultant). 26 Such questioning of links between extreme events and climate change and the framing of carbon pricing as conflicting with national and local economic justice arguably compounded the domination of Australia’s climate discourse complex by economic discursive fields that emphasized resource-led short-term growth (Christoff 2013), and forced the Garnaut Review team and other carbon-pricing proponents into defending carbon pricing on these grounds rather than the longer-term economic and social implications of climate change (consultant). Shifting the debate into this economic terrain, meanwhile, further enabled carbon-pricing opponents to emphasize distributive justice by fashioning geographically personalized non-climate justice narratives (Kurz, Augoustinos and Crabb 2010). Justice for households A final arena of justice claim-making in Australian carbon-pricing debates concerned implications for households. John Howard again set the tone for this discussion in 2006 by contrasting equivocal acceptance of climate science with emphasizing a broad range of non- climate justice concerns: the “enormous burden to be carried by consumers through much higher electricity prices, higher petrol prices, falls in GDP, of too dramatic an imposition of what you might call an anti-greenhouse policy.” (Australian Broadcasting Corporation 2006). The characterization of carbon pricing as a multi-pronged injustice against working Australians was intensified by Abbott, who branded the CPRS “a great big tax on everything” and declared the 2013 election a referendum on the carbon tax (academic). As was noted earlier, the political capital gained by these attacks forced Julia Gillard to assert during the 2010 election campaign that there would be: “No carbon tax under a government I lead”, though she maintained throughout that she would introduce carbon pricing (Rootes 2014). 27 In fact, the Gillard government worked energetically to address the CPM’s impact on households. One senior official described how the department was instructed: to track every form of household category to analyze the effects of different carbon prices and their translation into electricity prices, and to scour every element of the tax system to identify where and how households could be assisted so the CPM did not create a financial burden. One independent expert described the Household Assistance Package’s treatment of equity as “outstanding” and “a wonderful analysis”. The official nevertheless conceded that: the package failed because the government decided not to link it to the CPM because the CPM was so unpopular and instead presented the package as a tax gift. It was a political decision to benefit the minority government, but in hindsight the government missed the opportunity to steer public debate towards climate change and the basic reason for carbon pricing. In addition to damage inflicted by Gillard’s decision to introduce an initial fixed price on carbon of AUD $23 per tonne caused by the collapse of EU carbon prices, officials and regulators also recalled several unrelated issues becoming conflated within the growing and increasingly multi-issue narrative of injustice surrounding the CPM. These included the global financial crisis and increases in electricity prices caused by overinvestment in energy infrastructure. Neither was connected to the CPM but coincidences in timing enabled anti- carbon tax campaigners to stir up further unfairness narratives. In addition to Abbott’s 28 sloganeering on the “tax on everything” and Gillard’s carbon tax “lie”, regulators noted provocative remarks by Barnaby Joyce that the Australian Sunday roast would cost AUD$100 (US$101, December 2011), and pledges by the Palmer United Party, a key partner in repealing the CPM in 2014, to refund the tax that it claimed was destroying Australian families (Palmer United Party 2013). Although justice claim-making on behalf of households might be categorized as a social rather than a spatial issue, it has distinctive spatial implications under Australia’s compulsory preferential voting system. This requires voters in each electorate to rank candidates in preference order; if no candidate gains over 50 percent of first preferences, the candidate with the fewest votes is excluded and their votes are reallocated to second preferences until someone achieves a majority. Supporters argue that the system represents all citizens’ views, but opponents argue that it forces voters to support non- preferred candidates and increases safe electorates because voters often rank their non- preferred major party low in their preferences (Evans 2006; Fowler 2013). It also encourages parties to court popularity across a range of issues to maximize preferences gained from eliminations rather than taking a strong stand on individual issues. Compulsory voting also incentivizes targeting of voters with limited interest in politics in marginal electorates rather than the majority whose voting behaviour is guaranteed. The 2013 election saw focused campaigning in the Western Sydney, Melbourne, and Brisbane suburbs, often accompanied by locally-directed expenditure pledges (The Guardian 2013b). Although the government sought to defuse Abbott's attacks by announcing the early introduction of flexible pricing, Abbott claimed this merely replaced an unjust fixed tax with an unfair variable one (Rootes 2014). 29 In summary, developing multiple lines of justice argumentation, especially focusing on the short-term economic and social costs of climate action, and the spatialization of these claims towards discrete socio-spatial scales and locations proved a highly effective weapon in undermining carbon pricing in Australia despite assessments that the impacts of the CPM were substantially mitigated by industry and householder assistance (Meng, Siriwardana and McNeill 2013). In particular, pitching injustice claims about carbon pricing within specified national, regional and local boundaries enabled CPM opponents to reach multiple audiences, influence how issues and groups were characterized, and outmaneuver government attempts to frame carbon pricing as a general global-justice and national- conscience issue. Interestingly, claims about injustices created by the CPM appeared to gain greater political traction than tangible measures to address distributive issues. Most assessments suggest the government provided innovative measures to ameliorate the CPM’s effects on households and regionally concentrated industries. However, its unwillingness to stress links between the household package and climate action underscores the importance of messaging framing and claim-making within debates on climate policy. The government’s failure to generate momentum behind the distributional impacts of climate change on Australia can be again attributed chiefly to the Coalition’s capacity to dispute links between individual events and human impacts in order to recharacterize which issues and groups deserved and did not warrant recognition. Additionally, casting doubt on Australia’s ability to make a difference to global emissions proved useful in magnifying the injustice of imposing burdens on Australian regions and households, whilst simultaneously projecting justice responsibilities towards other countries where action deficits could be identified within the international climate negotiations. 30 Conclusions Australia has witnessed a highly adversarial debate on carbon pricing over the last decade (Rootes 2011; 2014). Although the extent to which this has extended beyond parliamentary and business circles into the media and public debate makes Australia an extreme case, even compared with the U.S., it illustrates many difficulties that can encircle national debates on the justice dimensions of climate policy. Australia’s stalling in introducing decisive policies to reduce its greenhouse-gas emissions is commonly attributed to its fossil- fuel dependency, the lobbying power of resource-intensive industries, and self-interested politics (Pearse 2010; Rootes 2011; Crowley 2013). However, these interpretive lenses provide only a partial insight on how such national and commercial interests gain political traction in the face of scientific, international, and ethical pressure for climate action. Justice perspectives do not hold a monopoly on explanations for the introduction or failure of policies. However, most climate debates involve some discussion of rights, responsibilities, and distributions. As such, critical analysis of justice narratives provides instructive comparative lessons on how perceptions of fairness influence climate agenda setting (Klinsky 2015). This article has advanced two main arguments. The first concerns the need for sustained attention to how climate justice interacts with other forms of justice claim within climate politics. Whilst conceptualizing the principles and parameters of climate justice and how it might be integrated into international negotiations and individual climate initiatives is vital for clarifying the rights, responsibilities, distributions, and procedures affected by climate change, scholars must also engage actively with alternative justice discourses surrounding 31 this topic to help understand and shape trade-offs between climate and non-climate justice claims in climate policy (Christoff 2013). In Australia, the interweaving of multiple justice arguments around climate impacts and the economic and social impacts of carbon pricing was an important contributor to the repeal of the CPM and underscores the reality that different voices appeal to diverse ethical bases and audiences to influence what are accepted as legitimate or unjust responses to climate change (Walker and Shove 2007). Recent work conceptualizing climate justice has stressed its multivalent and evolving character and that: “the politics and practices of… climate change interventions are constantly engaging with and refracting the idea of justice,” (Bulkeley, Edwards and Fuller 2014, 31). However, the Australian case suggests the need to consider two overlapping but distinctive circuits of refraction. The first concerns how climate justice responsibilities, distributions, and procedures interact internally to produce new understandings of the concept and its implications. The second concerns how each component of climate justice interacts with other justice claims, such as freedom of choice and economic livelihoods. In the Australian carbon-pricing debates, few actors openly contested rights of protection from climate impacts, but many still opposed carbon pricing on alternative justice grounds. This more multivalent view of how justice is framed in climate politics accentuates the need to understand each element of justice as a complex of climate and non-climate justice considerations, each with its own dilemmas and trade-offs in how justice principles and claims are prioritized, rather than viewing each solely in terms of climate rights, responsibilities, distributions and procedures (Rawls 1972; Klinsky, Dowlatabadi and McDaniels 2012). Although this further complicates analysis of climate justice by incorporating non-climate justice considerations alongside climate justice, it also creates 32 productive spaces to explore more deeply how conflicts between different sets of rights, responsibilities, distributions, and procedures are mediated during the negotiation of climate initiatives. This emphasis on climate justice claim-making also foregrounds important distinctions between normative ideas about what claims should be recognized and claimants’ capacity to gain recognition for themselves and their arguments (Schlosberg 2004). While all protagonists in the Australian carbon-pricing debate sought to maintain the moral high ground by employing justice-related argumentation, gaining political traction was often determined as much by proficiency in securing recognition as by the substance of arguments (Christoff 2013). In this case, broadening the range of issues deemed to merit consideration and populist sentiments about unfair taxation6 on households and trade- exposed industries gained greater media exposure and recognition than practical packages to address distributive issues. In addition to underscoring the importance of recognition in climate justice debates, such instances raise questions about ensuring procedural fairness where gaining recognition is determined by capabilities rather than normative arguments (Gross 2007). The second argument concerns the attachment of socio-spatial representations to justice claims as a device to enhance recognition by aligning arguments with identifiable places and peoples. Routledge (2011, 384) argues that climate activists might use such spatial framings to draw out “translocal climate justice solidarities” between peoples experiencing climate injustices. However, the Australian carbon-pricing experiences equally illustrated the spatialization of justice claims as a framing device to highlight genuine concerns about 33 regional impacts and to pursue commercial or political interests “in the shadow” of fairness claims (Boykoff 2008). Both sides in the debate used socio-spatial justice representations to strengthen their arguments. However, carbon-pricing opponents proved more skillful in generating spatially- and socially-recognizable discourses about distributional impacts on households and communities in regional Australia, and in constructing selective portrayals of national interests vis-à-vis those of other nations. In contrast, carbon-pricing advocates relied on responsibilities-based representations of Australia’s international duty to reduce emissions, and failed to engage in sustained communication about regional climate impacts in Australia. Beyond conceptual contributions, the findings hold important practical implications for research on the justice dimensions of climate policy. In particular, they highlight questions about how to mediate climate and alternative justice claims. An obvious first step is greater engagement with the multivalent and relational nature of climate justice vis-à-vis more established justice matrices. Allied to this is careful unpacking of the discourses and tactics used to promote both climate and alternative justice claims, to understand--and where necessary challenge--the processes through which different justice claims gain recognition (Bulkeley, Edwards and Fuller 2014). A second priority is further examination of how the justice arguments favoring climate action might be spatialized more effectively. Evidence from Australia suggests that framings of climate change as a long-term, international issue often fail to persuade key audiences compared with more localized and economically-focused narratives. One more spatially nuanced framing gaining momentum in Australia highlights energy justice as a way of 34 connecting global climate concerns to multi-scalar concerns about the financial, environmental, and health implications of energy production. Pearse (2015) describes how activists have shifted attention from carbon pricing towards new coal power projects in Victoria, Queensland, and Western Australia, using community campaigns to stress the protection of local landscapes and communities from blanket mining alongside broader climate themes. Parallel campaigns by Beyond Zero Emissions have involved nationwide tours promoting and large- and small-scale renewable-energy projects with local communities and decision-makers aimed at achieving 100 percent renewable energy across the electricity grid (Pearse 2015). Other spatially-focused justice narratives might target geographically-specific climate-related threats, for instance to water availability for agricultural communities in Australia’s Murray-Darling Basin, or widely-publicized threats to the Great Barrier Reef from the expansion of the Abbot Point deepwater port for coal exports (Bettini 2013). A further option is more spatialized portrayals of the justice co- benefits of climate action, such as improved health and transportation systems, to connect them compellingly to specific places and personal priorities (Chapman 2015). These are just a few options for giving climate justice greater geographical rootedness in climate policy, but there are doubtless many others. Either way, deeper embedding of climate justice into political decision-making remains a critical challenge, and further exploration of the multivalence and socio-spatial dimensions of justice claim-making remains an important frontier for research on climate justice. 35 Notes 1 However, Skitka, Winquist and Hutchinson (2003) argue that if a group is convinced that outcomes are moral or immoral, procedural fairness may be less important than outcomes due to the strength of a priori convictions. 2 The main obstacle to negotiations was that the Greens regarded the government’s target to reduce emissions to 5 percent below 2000 levels by 2020 as under-ambitious. Raising the target was problematic, however, because it was supported by the Coalition and industry. A compromise was reached whereby the Greens supported an initial fixed price of $23 to create incentives for emissions reduction in return for agreement that Australia’s emissions targets would be reviewed by the independent Climate Change Authority. 3 Formed by Clive Palmer, in 2013 with an agenda to repeal the CPM and restore Australia’s economic prosperity. 4 Economics is, of course, a form of ethical argumentation with its own normative compasses for deciding justifiable courses of action. However, the distinction Christoff draws is between: (i) ethical discourses centered on climate ethics and the normative appropriateness of different mitigation and adaptation solutions; and (ii) economic discourses about efficiency, welfare, development, and modernization, ranging from older economic discourses supporting resource-centered growth that entail weak valuations of nature and higher future discounting and bias cost-benefit calculations towards short-term economic security, employment, investment and welfare, to newer economic discourses that incorporate the future costs of climate change. Christoff’s ethical and economic discourses thus both contain normative standpoints but contest what matters when judging 36 the justice of different approaches to cost-sharing the burdens of climate impacts, mitigation and adaptation. I am grateful to one anonymous referee for this point. 5 Australia’s emissions are estimated to be 1.4 percent of the global total, but this figure excludes emissions from coal exports because these are attributed to countries where greenhouse gases are emitted for energy generation under Kyoto accounting rules. 6 As Peet and Harrison (2012) note, the term tax often invokes negative feelings among voters, while even revenue-neutral taxes is contentious either because voters disbelieve that environmental taxes can accomplish anything without imposing penalties. 37 References Abbott, T. 2009. Battlelines. Carlton, VIC: Melbourne University Press. ACIL Tasman. 2011. Impact of carbon price on black coal mining: Updated analysis of alternative carbon price scenarios. Brisbane: ACIL Tasman, https://www.qrc.org.au/_dbase_upl/ACIL%20Tasman%20report%202,%2030.9.11.pdf (last accessed 12 December 2014]. Australian Broadcasting Corporation. 2006. John Howard interview: Energy. http://www.abc.net.au/4corners/content/2006/s1738726.htm (last accessed 20 May 2015). Australian Conservative. 2011. Carbon tax to hit regional Australia the hardest. http://australianconservative.com/2011/08/carbon-tax-to-hit-regional-australia-the- hardest/ (last accessed 20 May 2015). Australian Government. 2011. Securing a clean energy future: The Australian Government's climate change plan. Commonwealth of Australia: Canberra. Australian Industry Group. 2013. Ai Group survey: Business pricing responses to Australia’s carbon tax, the first six months. http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.Con tentDeliveryServlet/LIVE_CONTENT/Publications/Reports/2013/Economics/Carbon_price_i mpacts_Jan_2013.pdf (last accessed 2 October 2015). Bacon, W. and C. Nash. 2012. Playing the media game. Journalism Studies 13 (2): 243–58. https://www.qrc.org.au/_dbase_upl/ACIL%20Tasman%20report%202,%2030.9.11.pdf http://www.abc.net.au/4corners/content/2006/s1738726.htm http://australianconservative.com/2011/08/carbon-tax-to-hit-regional-australia-the-hardest/ http://australianconservative.com/2011/08/carbon-tax-to-hit-regional-australia-the-hardest/ http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Publications/Reports/2013/Economics/Carbon_price_impacts_Jan_2013.pdf http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Publications/Reports/2013/Economics/Carbon_price_impacts_Jan_2013.pdf http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Publications/Reports/2013/Economics/Carbon_price_impacts_Jan_2013.pdf 38 Bailey, I., I. MacGill, R. Passey and H. Compston. 2012. The fall (and rise) of carbon pricing in Australia: A political strategy analysis of the carbon pollution reduction scheme. Environmental Politics 21 (5): 691–711. Beckman, L. and E. Page. 2008. Perspectives on justice, democracy and global climate change. Environmental Politics 17 (4): 527–35. Behm, A. 2015, No Minister: So you want to be a chief of staff? Melbourne: Melbourne University Press. Botterill, L. 2006. Soap operas, cenotaphs and sacred cows: countrymindedness and rural policy debate. Public Policy 1 (1): 23–36. Boykoff, M. 2008. The cultural politics of climate change discourse in UK tabloids. Political Geography 27 (5): 549–69. Büchs, M., N. Bardsley and S. Duwe. 2011. Who bears the brunt? Distributional effects of climate change mitigation policies. Critical Social Policy 31 (2): 285–307. Bulkeley, H. and P. Newell. 2010. Governing climate change. Abingdon: Routledge. Bulkeley, H., J. Carmin, V. Castán Broto, G. Edwards and S. Fuller. 2013. Climate justice and global cities: Mapping the emerging discourses. Global Environmental Change 23 (5): 914– 25. Bulkeley, H., G. Edwards and S. Fuller. 2014. Contesting climate justice in the city: Examining politics and practice in urban climate change experiments. Global Environmental Change 25: 31-40. 39 Burgmann, V. and H. A. Baer. 2012. Climate politics and the climate movement in Australia. Melbourne: Melbourne University Press. Caripis, L., J. Peel, L. Godden and R. Keenan. 2011. Australia's carbon pricing mechanism. Climate Law 2 (4): 583–603. Chapman, R. 2015. Time of useful consciousness: acting urgently on climate change. Wellington: Bridget Williams Books. Christoff, P. 2013. Climate discourse complexes, national climate regimes and Australian climate policy. Australian Journal of Politics and History 59 (3): 349–67. Cleugh, H., M. Stafford Smith, M. Battaglia and P. Graham. 2011. Climate change. Collongwood, VIA: CSIRO Publishing. Climate Institute. 2011. Jobs growth in a low pollution economy. http://www.climateinstitute.org.au/verve/_resources/tci_joblosses_mythbuster_august201 1.pdf (last accessed 12 December 2014). Cowell, R., G. Bristow and M. Munday. 2011. Acceptance, acceptability and environmental justice: The role of community benefits in wind energy development. Journal of Environmental Planning and Management 54 (4): 539–57. Crowley, K. 2007. Is Australia faking it? The Kyoto Protocol and the greenhouse policy challenge. Global Environmental Politics 7 (4): 118–39. ———. 2013. Pricing carbon: The politics of climate policy in Australia. Wiley Interdisciplinary Reviews: Climate Change 4 (6): 603–13. http://www.climateinstitute.org.au/verve/_resources/tci_joblosses_mythbuster_august2011.pdf http://www.climateinstitute.org.au/verve/_resources/tci_joblosses_mythbuster_august2011.pdf 40 DiFrancesco, D. A. and N. Young. 2011. Seeing climate change: The visual construction of global warming in Canadian national print media. Cultural Geographies 18 (4): 517–36. Dryzek, J. 2013. The Politics of the Earth: Environmental discourses (third edition). Oxford: Oxford University Press. Evans, T. 2006. Compulsory voting in Australia. Australian Electoral Commission. http://emailfooter.aec.gov.au/About_AEC/Publications/voting/files/compulsory-voting.pdf (last accessed 26 May 2015). Fiske, A. P. and P. Tetlock. 1997. Taboo trade-offs: Reactions to transactions that transgress the spheres of justice. Political Psychology 18 (2): 255–97. Flowerdew, R. and Martin, D. 2005. Methods in Human Geography: A Guide for Students doing a Research Project. Abingdon: Routledge. Fowler, A. 2013. Electoral and policy consequences of voter turnout: Evidence from compulsory voting in Australia. Quarterly Journal of Political Science 8 (2): 159–82. Fraser, N. 2001. Recognition with ethics? Theory, Culture and Society 18 (2-3): 21–42. Gardiner, S.M. 2006. A perfect moral storm: climate change, intergenerational ethics and the problem of moral corruption. Environmental Values 15 (3): 397–413. ———. 2011. A Perfect Moral Storm: The ethical tragedy of climate change. Oxford: Oxford University Press. Garnaut, R. 2008. The Garnaut Climate Change Review: Final report. Cambridge, UK: Cambridge University Press. http://emailfooter.aec.gov.au/About_AEC/Publications/voting/files/compulsory-voting.pdf 41 Garnaut, R. 2011. The Garnaut Review 2011: Australia in the global response to climate change. Cambridge, UK: Cambridge University Press. Gavin, N. 2009. Addressing climate change: A media perspective. Environmental Politics 18 (5): 765–80. Grasso, M. 2010. An ethical approach to climate adaptation finance. Global Environmental Change 20 (1): 74–81. Gratton, M. and M. Wroe. 2011. Abbott's blood oath to repeal carbon tax. Sydney Morning Herald 13 October 2011 http://www.smh.com.au/national/abbotts-blood-oath-to-repeal- carbon-tax-20111012-1ll80.html (last accessed 3 June 2014). Greer, A. 2014. Towards climate justice? A critical reflection on legal subjectivity and climate injustice: Warning signals, patterned hierarchies, directions for future law and policy. Journal of Human Rights and the Environment 5 (0): 103–33. Gross, C. 2007. Community perspectives of wind energy in Australia: The application of a justice and community fairness framework to increase social acceptance. Energy Policy 35 (5): 2727–36. Giljum, S. and N. Eisenmenger. 2004. North-south trade and the distribution of environmental goods and burdens. A biophysical perspective. Journal of Environment and Development 13 (1): 73–100. Hafer, C. and J. Olson. 2003. An analysis of empirical research on the scope of justice. Personality and Social Psychology Review 7 (4): 311–23. http://www.smh.com.au/national/abbotts-blood-oath-to-repeal-carbon-tax-20111012-1ll80.html http://www.smh.com.au/national/abbotts-blood-oath-to-repeal-carbon-tax-20111012-1ll80.html 42 Heyward, M. 2007. Equity and international climate change negotiations: a matter of perspective. Climate Policy 7 (6): 518–34. Harrison, K. and L. M. Sundstrom. 2010. Conclusion: The comparative politics of climate change. In Global commons, domestic decisions: The comparative politics of climate change, eds K. Harrison and L. M. Sundstrom, 261–90. Cambridge, MA: MIT Press. Hillman, M. 2006. Situated justice in environmental decision-making: Lessons from river management in Southeastern Australia. Geoforum 37 (5): 695–707. Hornborg, A. 1998. Towards an ecological theory of unequal exchange: articulating world system theory and ecological economics. Ecological Economics 25 (1): 127-136. Howarth, D. 2009. Power, discourse and policy: Articulating a hegemonic approach to critical policy studies. Critical Policy Studies 3 (3-4): 309–35. Hsieh, H.F. and Shannon, S.E. 2005. Three approaches to qualitative content analysis. Qualitative Health Research 15 (9): 1277–88. Klinsky, S. 2015. Justice and boundary setting in greenhouse gas cap and trade policy: A case study of the Western Climate Initiative. Annals of the Association of American Geographers 105 (1): 105-22. Klinsky, S. and H. Dowlatabadi. 2009. Conceptualizations of justice in climate policy. Climate Policy 9 (1): 88-108. Klinsky, S., H. Dowlatabadi and T. McDaniels. 2012. Comparing public rationales for justice trade-offs in mitigation and adaptation climate policy dilemmas. Global Environmental Change 22 (4): 862–76. 43 Kuehn, R. 2000. A taxonomy of environmental justice. Environmental Law Reporter 30 (9): 10681–703. Kurz, T., M. Augoustinos and S. Crabb. 2010. Contesting the ‘national interest’ and maintaining ‘our lifestyle’: A discursive analysis of political rhetoric around climate change. British Journal of Social Psychology 49 (3): 601–25. Lawrence, P. 2009. Australian climate policy and the Asia Pacific Partnership on Clean Development and Climate (APP). From Howard to Rudd: Continuity or change? International Environmental Agreements 9 (3): 281–99. Lind, A. and T. Tyler. 1988. The social psychology of procedural justice. New York: Plenum Press. MacCoun, R. 2005. Voice, control and belonging: The double-edged sword of procedural fairness. Annual Review of Law and Social Science 1 (1): 171–201. Meng, S., M. Siriwardana and J. McNeill. 2013. The environmental and economic impact of the carbon tax in Australia. Environmental and Resource Economics 54 (3): 313–32. Meyer, L. and D. Roser. 2010. Climate justice and historical emissions. Critical Review of International Social and Political Philosophy 13 (1): 229–53. Okereke, C. 2010. Climate justice and the international regime. Wiley Interdisciplinary Reviews: Climate Change 1 (3): 462–74. Page, E. 2008. Distributing the burdens of climate change. Environmental Politics 17 (4): 556–75. 44 Palmer United Party. 2013. National Policy. http://palmerunited.com/wp- content/uploads/2013/07/Palmer-United-Party-National-Policy-16MAY2013.pdf (last accessed 20 May 2015). Parks, B. and J. T. Roberts. 2008. Inequality and the global climate regime: Breaking the north-south impasse. Cambridge Review of International Affairs 21 (4): 621–48. Pearse, G. 2009. Quarry vision: coal, climate change and the end of the resources boom. Quarterly Essay 33: 1–140. Pearse, R. 2015. The political economy of carbon pricing in Australia: Contestation, the state and governance failure. Unpublished PhD thesis, University of New South Wales. Peet, C. and Harrison, K. 2012. Historical legacies and policy reform: Diverse regional reactions to British Columbia’s carbon tax. BC Studies 173 (Spring 2012): 97–122. Pietsch, J. and McAllister, I. 2010. ‘A diabolical challenge’: Public opinion and climate change policy in Australia. Environmental Politics 19 (2): 217–36. Pralle, S. 2009. Agenda-setting and climate change. Environmental Politics 18 (5): 781–99. Productivity Commission. 2011. Carbon emission policies in key economies. Melbourne: Productivity Commission. http://www.pc.gov.au/__data/assets/pdf_file/0003/109830/carbon-prices.pdf (last accessed 1 October 2015). Rawls, J. 1972. A theory of justice. Oxford: Oxford University Press. http://palmerunited.com/wp-content/uploads/2013/07/Palmer-United-Party-National-Policy-16MAY2013.pdf http://palmerunited.com/wp-content/uploads/2013/07/Palmer-United-Party-National-Policy-16MAY2013.pdf http://www.pc.gov.au/__data/assets/pdf_file/0003/109830/carbon-prices.pdf 45 Roberts, T. and B.C. Parks. 2009. Ecologically unequal exchange, ecological debt, and climate justice: the history and implications of three related ideas for a new social movement. International Journal of Comparative Sociology 50 (3-4): 385–409. Rootes, C. 2011. Denied, deferred, triumphant? Climate change, carbon trading and the Greens in the Australian federal election of 21 August 2010. Environmental Politics 20 (3): 410–17. ———. 2014. A referendum on the carbon tax? The 2013 Australian election, the Greens, and the environment. Environmental Politics 23 (1): 166–73. Routledge, P. 2011. Translocal climate justice solidarities. In The Oxford handbook of climate change and society, ed. J. Dryzek, R. Norgaard and D. Schlosberg, 384–98. Oxford: Oxford University Press. Rudd, K. 2008. Building a better world together: Speech at Kyoto University 9 June 2008. http://pmtranscripts.dpmc.gov.au/release/transcript-15955 (last accessed 2 October 2015). Schlosberg, D. 2004. Reconceiving environmental justice: Global movements and political theories. Environmental Politics 13 (3): 517–40. ———. 2012. Climate justice and capabilities: A framework for adaptation policy. Ethics and International Affairs 26 (4): 445–61. Shue, H. 1993. Subsistence emissions and luxury emissions. Law and Policy 15 (1): 39–59. ———. 1999. Global environment and international inequality. International Affairs 75 (3): 531–45. http://pmtranscripts.dpmc.gov.au/release/transcript-15955 46 Singer, P. 2002. One world: the ethics of globalization. New Haven, CT: Yale University Press. Speck, D. 2010. A hot topic? Climate change mitigation policies, politics, and the media in Australia. Human Ecology Review 17 (2): 125–34. Skitka, L., J. Winquist and S. Hutchinson. 2003. Are outcome fairness and outcome favourability distinguishable psychological constructs? A meta-analytic review. Social Justice Research 16 (4): 309–41. The Age. 2003. I won't ratify Kyoto Protocol: PM. 2 December 2003, http://www.theage.com.au/articles/2003/12/02/1070127416251.html (last accessed 5 December 2014). The Australian. 2011. Carbon tax ‘will cost 4000 coal jobs’. http://www.theaustralian.com.au/national-affairs/carbon-tax-will-cost-4000-coal- jobs/story-fn59niix-1226074538742 (last accessed 12 December 2014). The Guardian. 2013a. Missing logic of Australian prime minister's denial of climate change link to bushfires. http://www.theguardian.com/environment/planet- oz/2013/oct/29/climate-change-bushfires-smoking-denial-tony-abbott (last accessed 12 December 2014). The Guardian. 2013b. Campaign watch: 2013 Australian election interactive map. http://www.theguardian.com/world/datablog/interactive/2013/aug/19/australian-election- campaign-map (last accessed 12 December 2014). Vanderheiden, S. 2008. Atmospheric justice: A political theory of climate change. Oxford: Oxford University Press. http://www.theage.com.au/articles/2003/12/02/1070127416251.html http://www.theaustralian.com.au/national-affairs/carbon-tax-will-cost-4000-coal-jobs/story-fn59niix-1226074538742 http://www.theaustralian.com.au/national-affairs/carbon-tax-will-cost-4000-coal-jobs/story-fn59niix-1226074538742 http://www.theguardian.com/environment/planet-oz/2013/oct/29/climate-change-bushfires-smoking-denial-tony-abbott http://www.theguardian.com/environment/planet-oz/2013/oct/29/climate-change-bushfires-smoking-denial-tony-abbott http://www.theguardian.com/world/datablog/interactive/2013/aug/19/australian-election-campaign-map http://www.theguardian.com/world/datablog/interactive/2013/aug/19/australian-election-campaign-map 47 Walker, G. 2009. Beyond distribution and proximity: Exploring the multiple spatialities of environmental justice. Antipode 41 (4): 614–36. Walker, G. and H. Bulkeley. 2006. Geographies of environmental justice. Geoforum 37 (5): 655–659. Walker, G. and R. Day. 2012. Fuel poverty as injustice: Integrating distribution, recognition and procedure in the struggle for affordable warmth. Energy Policy 49: 69–75. Walker, G. and E. Shove. 2007. Ambivalence, sustainability and the governance of socio- technical transitions. Journal of Environmental Policy and Planning 9 (3): 213–25. IAN BAILEY is Professor in the School of Geography, Earth and Environmental Sciences at Plymouth University, Plymouth, UK. E-mail: ian.bailey@plymouth.ac.uk. His research interests include climate and energy politics and the social dimensions of sustainability. 48 
work_7obswvpptvaj5f4jlitzgggn6u	----	086730_TRE_47-70.qxd [ 4 7 ] TRE. . Theory and Research in Education Copyright © 2008, sage publications, www.sagepublications.com vol 6(1) 47–70 ISSN 1477-8785 DOI: 10.1177/1477878507086730 Educational justice and the gifted m i c h a e l s . m e r r y Beloit College,Wisconsin, USA a b s t r a c t This article examines two basic questions: first, what constitutes a gifted person, and secondly, is there justification in making special educational provision for gifted children, where special provision involves spending more on their education than on the education of ‘normal’ children? I consider a hypothetical case for allocating extra resources for the gifted, and argue that gifted children are generally denied educational justice if they fail to receive an education that adequately challenges them. I further argue that an adequately challenging education is essential to human flourishing, but that most children can be adequately challenged in schools in ways that promote flourishing without doing so at the expense of other children. k e y w o r d s adequate challenge, fair equality of opportunity, flourishing, giftedness W i t h t h e p a s s a g e o f the Elementary and Secondary Education Act (ESEA) in 1965, the needs of various minority children in the United States became the subject of federal policy.Title I legislation aimed to close the achieve- ment gap between high and low achieving children,‘especially the achievement gaps between the minority and non-minority students, and between disadvan- taged children and their more advantaged peers’ (ESEA, Sec. 1001.3). Some years later, the Rehabilitation Act (1973) and the Education for All Handicapped Children Act (PL 94–142, 1975) were passed to provide educational opportu- nities for children with disabilities and special needs.This legislation effectively required the inclusion – to one degree or another into regular classroom instruction – of children with special needs whose parents wished to avail themselves of the public schools. Assessment and accountability procedures were also prescribed.1 Eventually this legislation would be ratified as the Individuals with Disabilities Education Act (IDEA).As an entitlement program, schools receiving federal funds under IDEA are responsible for actively seeking out children who may benefit from the services that said legislation addresses. 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 47 The relevance of these developments is to highlight an important backdrop to the demand for equitable education for children whose parents consider them to be ‘gifted’. In the last 30 years or so, a growing number of mostly white, middle-class parents have expressed outrage at the failure of public schools to adequately challenge their children. Gifted children, the argument runs, are underserved, are being ‘held back’, and are being asked to pull others up without being challenged themselves. Anecdote after anecdote is served up suggesting that gifted children suffer ennui, frustration and often disaffec- tion with their schooling as a result of not being sufficiently challenged. Some parents also complain that they are forced to pay for private education or tutoring in order to challenge their children with exceptional abilities or talents. Many of these parents have demanded that states and/or the federal government appropriate funds for separate gifted and talented programming as a matter of equity and equal opportunity. However, despite vociferous demands for special accommodation and programming, special provisions for so-called gifted children have largely fallen on deaf ears.2 Individual states may address the matter separately,3 and in certain instances court decisions have required that some programs for gifted children be provided.Vexed that more than 140 per cent extra is spent on special education services than on ‘enrichment’ services for quick learners, a small but committed core of parents continue to push for special legislation and funding for Talented and Gifted programming (Cloud, 2007; Davidson and Davidson, 2004).4 Vocal critics argue that giftedness labeling and programming in public schools is elitist and operates according to doubtful psychometric assessment tools which generally privilege a select few at the expense of the majority. Making the debate possibly more contentious is the belief many have that the number of truly exceptional children who are likely to require extraordinary educational provision is rather small – unlike the population of children deemed to have ‘special needs’.5 Yet I argue that, while only a small number of truly exceptional children are likely to require extraordinary educational provision, to not adequately challenge these children, who hail from all ethnic groups and social classes, is unequivocally to fail them. This article addresses two important questions. 1. What constitutes a gifted person? 2. Are we justified in making special educational provision for gifted children, where special provision involves spending more on their education than on the education of ‘normal’ children? Taking the first item, I will attempt to define the notion of giftedness, noting its inherent complexity and contested nature. I will briefly consider a multi- factorial concept of intelligence and suggest that notwithstanding its advantages Theory and Research in Education 6(1) [ 4 8 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 48 it cannot supply a theoretical foundation for gifted education and may actually serve to undermine it.This is because intelligence or ability too broadly defined renders gifted education either trivial or useless.Though advocates of ‘multiple intelligence’ will locate giftedness in various domains (e.g. intuitive, intraper- sonal, affective), I will concern myself with its cognitive aspects in this article. As a corollary to the first question, I will then examine the difficulties in deter- mining who is gifted, noting cultural, environmental and institutional barriers. Then, taking the second question, I will consider a hypothetical case for allocating extra resources for the gifted, considering various political and educa- tional arguments. I will turn my attention to Rawls’ second axiom of justice, focusing in particular on Fair Equality of Opportunity (FEO), which requires not only ‘that public offices and social positions be open in the formal sense, but that all should have a fair chance to attain them’ (Rawls, 2001: 43). That is, persons with similar native endowments (talent and ability), and the initiative or motivation to put those talents to effective use, ought to have more or less the same opportunities to do so irrespective of their family and social class origins. Notwithstanding its philosophical appeal, I will show that FEO can not justify differential educational provision for those who have more talent than others. Leaving Rawls aside, then, I will introduce a principle of adequate educational challenge.Thus, in response to my second question, my central claim is this: All children, including the gifted, deserve to be adequately challenged as a matter of fairness, even though the specification of what is adequate will continue to be somewhat elusive. I argue that gifted children are generally denied educational justice if they fail to receive an education that adequately challenges them. I also argue that an adequately challenging education is essential to human flourishing. I will further argue that most children can be adequately challenged in schools in ways that promote flourishing without doing so at the expense of other children. Justice demands that classroom instruction – and educational opportunities generally – should not be arranged in such a way as to unduly advantage children whose abilities arguably surpass those of their classmates. Rather, educational opportunities must be structured so as to benefit all learners irrespective of socio-economic background, parental and teacher recom- mendation, or test scores. w h at c o n s t i t u t e s a g i f t e d p e r s o n ? Giftedness is one of those terms that would seem to defy precise description. Yet how we conceive of giftedness is hugely significant because this will inform not only our understanding of who gifted learners are, but moreover Merry: Educational justice and the gifted [ 4 9 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 49 how we ought to design and foster educational opportunities. Experts use a number of criteria when discussing gifted individuals.These criteria include a tendency to ask probing questions, signs of astute analysis, or the ability to synthesize complex information (Heller et al., 2005). Others speak of being goal- driven, possessing greater metacognition, a faster pace of learning, greater flexibility in problem-solving skills, and a penchant for complexity and challenge (Callahan and Miller, 2005). Other factors are also germane, such as intrinsic motivation and sustained attention or task commitment, but it remains unclear just how other these are to be factored in. Matters become increasingly complex when we include learning styles, creativity, memory capacity, strategies for coping with stress, and good old-fashioned practice and hard work.What is clear is that a lot of information is needed to properly evaluate what a child’s abilities or gifts are and how they might best be cultivated.Yet given the fact that ‘giftedness may be elusive in its manner and context of manifestation’ (VanTassel-Baska, 2005a: 364), some have suggested that we broaden the possibilities for identifying unusually talented individuals. One way to do that is to consider a multifactorial concept of intelligence. A multifactorial concept of intelligence takes a more expansive view of things, effectively abrogating the popular notion that only a few individuals possess unique talents or unusually high ability. On such an understanding, all but the most incapacitated and irresolute possess (and possibly excel at) one or more types of intelligence and are capable of cultivating other intelligences over time that have been undernourished or in which, for the time being, they are lacking in proficiency. Thus individuals with developed spatial or interpersonal intel- ligences are not as likely to demonstrate mathematical or analytical aptitude.Yet where competency may be lacking in one form of intelligence, its advocates answer that this can be corrected by providing adequate learning opportunities and an appropriate level of challenge. According to Howard Gardner: [T]he ‘smarter’ the environment and the more powerful the interventions and the avail- able resources, the more proficient people will become, and the less important will be their particular genetic inheritance. (Gardner, 1999: 88) On this understanding ‘giftedness’ appears not to be a state of being for most children; it is something more akin to a process. Thus, given the right set of conditions and opportunities, many more children than at present would certainly be considered ‘gifted’; indeed, most children might be ‘gifted’ in at least one area. In fact this is the direction in which such theories can be extrapolated.Yet the problem with appropriating a multifactorial formulation of intelligence is that by expanding the definition of giftedness or ability to encompass all but the most incorrigibly untalented and mentally challenged, the notion of ‘gifted- ness’ becomes rather devoid of content.6 Indeed, for giftedness to apply in some broad sense to all children except the most severely disabled is to dilute Theory and Research in Education 6(1) [ 5 0 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 50 the significance of giftedness that its advocates insist make it remarkable in the first place. Further, while it is desirable that schools expand the notion of gift- edness to include those whose abilities and talents fall outside the time-honored categories of math, science and language arts, it does not follow that the gifted in these or any other subject or activity are deserving of special or separate instruction. Rather, it throws down a challenge to provide good teaching and effective instruction to all children irrespective of how well they perform on evaluative instruments whose purpose is to assess abilities according to a set of criteria on which there is little agreement. So the problem of achieving consensus on the precise meaning of gifted- ness continues to dog the field, and the difficulties are compounded by those who interchange terms like ‘genius’ or ‘prodigy’ with ‘gifted’ (Davidson and Davidson, 2004). In light of these difficulties, some argue that we ought to do away with the gifted label altogether: [Defining] giftedness is a matter of values and policy, not empirical research.And in many, if not most, states, definitions are not mandated.The result is that local educators are free, indeed required, to choose, or write, a definition of giftedness for their program for gifted students, one that, to a large extent, determines who will and who will not be gifted. In other words, giftedness in the schools is something we confer, not something we discover. It is a matter of educational policy, not a matter of scientific diagnosis. It is a social con- struction, not a fact of nature. (Borland, 2005: 8) Others, however, continue to employ definitions – albeit with great caution – even as they admit that the entire enterprise is ‘nebulous and fraught with difficulty. The highly able child is someone who has significantly greater aptitude for some aspect of intellectual learning than would be considered typical for their age and background. (Winstanley, 2003: 35) Now, clearly this broad definition does little to allay the vagueness problem, and, given the difficulties in arriving at a definition on which all can agree, I shall simply note here the contentiousness of the terminology in question.Yet, while the difficulty in defining the gifted child can be messy business, prac- tical demands require that we use some definition to refer to those children whose unusual aptitude sets them apart from their peers. Throughout I will use ‘gifted’ to refer to children with unusual abilities. ‘Unusual abilities’ on its own is terribly imprecise, of course, and unhelpful without further qualification. For example, a great many individuals possess some unusual talent or ability that few others do. Most of these ‘talents’ are physical eccentricities – often showcased on late-night television – and are generally quite useless aside from their (limited) amusement value. So possessing unusual abilities may mean little more than having atypical characteristics or abilities, and there is nothing noteworthy in the gifted sense about this. Merry: Educational justice and the gifted [ 5 1 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 51 Further, not all gifted children are recognized as such, and this may prevent them from being correctly identified in the first place. Indeed, some may demonstrate decidedly anti-social behavior and unremarkable test results. In other cases, however, children possess abilities simply not valued in the culture or society they inhabit. Either way, only appropriately varied diagnostics and monitoring can determine whether a child is simply ‘quirky’ or exceptional. Though some will doubtless prefer that we appreciate the various ways in which giftedness manifests itself (e.g. intuitively, affectively), by unusual abil- ities I have in mind those who possess extraordinary cognitive capacities well beyond what is considered ‘average’ for one’s age or background. Thus, like Winstanley, I will limit my use of giftedness here to its cognitive sense. w h o a r e t h e g i f t e d ? The common understanding of giftedness among its advocates assumes that gifted children have, innately, some learning capacity (parsed out in a variety of forms) that other children do not. Yet, aside from the conceptual diffi- culties, there are also a number of empirical realities that create difficulties for identifying gifted persons. First, some cultures will discourage any form of recognition of individual talent, preferring instead to emphasize communal values and group efforts. Second, children with unusual abilities often have their talents and intelligence obscured by several factors.There may be learning disabilities of various kinds (e.g. dyslexia) or sensory impairment (e.g. hearing loss). Some gifted children may also suffer from various chemical imbalances (e.g. hyperactive thyroid) or dwell in unstable home environments, thus affecting their academic performance. Further, a child’s elder siblings may not have been model students, thus leading many teachers to expect less of them. Other criticisms point to the fact that tests used to measure intelligence are able to tell us little about how the mind works or what a child’s aptitude or learning potential actually is. Individuals who score well on tests may be highly intelligent or they may simply be proficient at taking tests. Finally, because of the ways that tracking and ability grouping in public schools actually work, ‘gifted’ labeling frequently maps along both racial and social class lines.Whites and Asians are twice as likely as Latinos or African Americans to be labeled ‘gifted’ even with comparable test scores (Borland and Wright, 1994; Ford and Harris, 1999; Gordon and Birdglall, 2005; Moore et al., 2005). There may be a variety of reasons for this, including the learning opportunities that some parents provide their children at home or outside of the home/school. Be that as it may, parents and teachers routinely make certain assumptions about children – particularly of a certain social class background – and their putative abilities.What is more, these assumptions quickly become labels, and these labels usually stick. Theory and Research in Education 6(1) [ 5 2 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 52 Laura Purdy writes that not only are there problems with identifying appropriate participants in special programs, there is the problem of ‘snobbery among the chosen, together with the lack of self-confidence among those not chosen [and] such labels may be artificial and self-fulfilling prophecies based on inadequate criteria’ (2007: 318). In light of this worrying trend, there are good reasons to question whether most children who are designated ‘gifted learners’ in schools are truly deserving of the label. (Similarly, our skepticism is justified as it concerns the assignment of ‘learning disabilities’ to children from various minority groups (Harry and Klingner , 2006; Losen and Orfield, 2002).) The manner in which social class bears upon gifted labeling is particularly telling. Consider the social conditions that facilitate the cultivation of talents and the level of interest and effort that are likely to accrue given (a) the right learning conditions to foster those talents including appropriate role models and expectations; and (b) a set of opportunities and incentives that value and reward certain talents. Take, for example, a child whose latent proficiency lies in composing music, yet she has non-musical parents and attends a school that has no budget for a music program. Were she to have musically talented parents or were this music program to exist, she might have the conditions under which her untapped talents might flourish. Moreover, if she is lucky enough to have her hidden talents recognized and valued by her parents and teachers, she would have at her disposal a strong incentive to continue developing her talents in ways that open doors of opportunity not available to her in the absence of such parents or programs. The issue here is certainly whether or not a child’s talents and/or gifts are recognized and valued, but also whether the opportunities and conditions exist for those uncultivated talents and gifts to emerge and to blossom in the first place. Of course opportunities and incentives are no guarantee of interest, inten- tion or effort; nor are opportunities a substitute for actual aptitude or talent. And while cultivating talent entails more than merely finding out what one is good at, opportunities continue to correspond closely to social class and the sorts of preferences and tastes social class affords.Thus a privileged child lacking in the dexterity or motivation required for, say, gymnastics may adapt her preferences, provided she has both the requisite guidance and resources, and pursue other, culturally valued, pursuits. Even in the absence of motivation or talent, a socially privileged child may turn her attention to other activities which may or may not satisfy culturally established criteria for valued pursuits. Moreover, given the range of choices available to a socially privileged child, the likelihood that she will experience personal satisfaction and possibly even material success resulting from her pursuits remains quite high. Now of course social class will mean different things in different contexts and the level of well-being one experiences will vary greatly depending on a variety Merry: Educational justice and the gifted [ 5 3 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 53 of things, including the availability and/or quality of education, communal life, housing, nourishment, medical care, etc. at one’s disposal. (By well-being I mean an individual’s capacity to engage in intrinsically worthwhile activities, where these are not entirely determined by individual preferences.)7Yet in industrialized societies, which are where discussions of giftedness routinely take place, middle- class parents are far more likely to have comparable educational attainment, to share similar educational aspirations for their children, and to have the means for procuring them. For socially privileged persons these conditions are highly conducive to interaction with others similarly educated and well-informed. Research shows that peer effects on learning can be as significant as the quality of instruction a child receives (Swift, 2003). Children who socialize with others whose interests have been shaped and molded by well-educated parents are far more likely to adopt similar interests and to cultivate the skills necessary both for meaningful learning and material success. Why is this important? Its importance lies in the positional outcomes various educational opportunities bestow. Most poor parents also have high aspir- ations for their children but they are far more likely to have leveled aspirations owing to (a) their lower social-class standing that has undoubtedly resulted in part from access to inferior education; (b) the lack of material means that denies advantages more affluent parents take for granted; and (c) their encoun- ters with discriminatory behavior in the school, marketplace and society generally. Thus, socially privileged parents may avail themselves of structured daycare services, pre-schooling and extracurricular activities that are largely unavailable to those without comparable networking skills or disposable income. Research also shows that the amount and quality of adult–child inter- action is hugely different, on average, between social classes (Lareau, 2002; Ogbu, 2003; Rothstein, 2004). Opportunities to learn both inside and outside of the home only further that advantage. In short, in the absence of egalitarian intervention, the positional goods that increase the social capital (e.g. knowledge attainment, job readiness and satisfaction) for one group of children will unavoidably diminish the social capital of less advantaged children.8 Given the endless number of opportunities to cultivate abilities and talents that more privileged children typically enjoy, many educational philosophers and policy makers have argued that more ought to be done to challenge all children irrespective of who they are, whether through compensatory means such as Head Start, or simply with higher expectations, role modeling and nurture. Even so, the question of what schools ought to do for the gifted looms large. For all of the advantages that children of socially privileged parents enjoy – including greater access to gifted education programs, magnet and private schools – the fact remains that some children possess exceptional abilities regardless of the income bracket into which they were born. Theory and Research in Education 6(1) [ 5 4 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 54 None of this settles the question of what the gifted need or deserve. The definitional quandary does not remove the need to address the learning needs of gifted children. If unchallenged in school, the gifted may simply disengage (as similarly happens with slower learners whose contributions are seldom valued) or languish from boredom, thus affecting their motivation to learn and their general academic performance. In what follows I will argue that a rather strong case can be made for channeling extra resources into the education of the gifted – thus increasing their learning opportunities – on the understanding that doing so is likely to benefit others. a h y p o t h e t i c a l a r g u m e n t f o r e x t r a p r o v i s i o n In a society eager to recruit the best and brightest engineers, doctors, researchers, architects and solicitors,9 the case for funding and providing a more rigorous curriculum for the most able seems especially strong. Indeed, to many it will seem obvious that societies work against their own best interests when, say, advances in science and medicine stall due to the unwillingness of govern- ment to invest in the talents of the gifted. Because we do not wish to needlessly squander the talents of the best and brightest, failing to cultivate the raw material of talent or intelligence such children embody constitutes a form of neglect. (I will return to this.) Once we accept that investing in the best talents is not only fair and good for those individuals but also likely accrues benefits (what economists refer to as ‘externalities’) to significant numbers of others besides, it remains for us only to identify who the gifted are and determine what specifically can be done to maximize the benefits. Where schools are concerned, learning opportunities need only be provided and arranged so as to foster outcomes that are good for the gifted and optimal for society. Consequently, ‘adequate challenge’ for some learners may require additional educational resources. But this is too quick. First of all, prima facie these arguments are conse- quentialist, and consequentialism will swiftly run into conflict with the requirements of educational justice. Educational justice requires that the State provide basic educational opportunities to all children irrespective of social- class background or ability, knowing that opportunities are normally contin- gent on the enabling effects education typically affords. One may call these instrumental benefits because education supplies individuals with the means to meet the various minimal demands that citizenship requires (including basic literacy and financial savvy) and also to enhance one’s sense of well- being. Thus, with a sufficient amount and quality of education one may take up meaningful vocational pursuits and forms of leisure as well as the relation- ships that derive from these. More broadly, education also supplies intrinsic Merry: Educational justice and the gifted [ 5 5 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 55 benefits, which roughly translate as that which enhances human flourishing. Concerning what is just, Amy Gutmann observes that: A good case can be made for the use of education above the minimum to compensate less gifted and less motivated children for their undeserved disadvantages. Another good case can be made for using educational resources above the threshold to develop new skills and interests in all children, which might be useful to society as well as satisfying to citizens in the future. (Gutmann, 1999:135) Especially given that children with disabilities already struggle to keep up with their more able peers, learning opportunities that appear to favor the already advantaged require further justification. Some children will require more resources for the supplementary services necessary for even the possibility of attaining a normal life, and arguably this should take priority. Concerning how best to educate the gifted, I have hinted at a number of problems with a special provisions approach, not the least of which is that it promotes the sort of elitism and special treatment with which gifted program- ming (often in the form of ‘flexible’ or homogeneous grouping) has rightly or wrongly come to be identified. Further, given the way in which schools have often tended to reproduce social classes and respond to the demands of more privileged and educated parents, a special provisions approach, uncritically applied, will likely favor those whose abilities suggest social privilege rather than exceptional ability.10 Lastly, the manner in which separate instruction occurs tends to advance the interests of a few at the expense of those who are arguably just as capable of benefiting from more challenging instruction, including many underperforming gifted children. These responses can be answered, up to a point. First, I have little doubt that unreserved approval could be won for the allocation of extra resources to the education of the gifted if it could be shown that the additional resources would make ‘an appropriate contribution to the good of others by training and educating their native endowments and putting them to work [within] a fair system of social cooperation’ (Rawls, 2001: 68). In principle, policy makers could design incentives that encourage individuals with greater endowments or motivation to seize enhanced learning opportunities in such a way as to greatly benefit others, especially those less well off.11 Consider the way in which Rawls’ second axiom of justice speaks to this: Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of oppor- tunity; and second, they are to be to the greatest benefit of the least-advantaged mem- bers of society. (Rawls, 2001: 42–3) (The first part of this axism,) Fair Equality of Opportunity (FEO) and (the second part of this axism,) Difference Principle (DP) should not be run together.12 Yet, allocations of additional resources to gifted students might in Theory and Research in Education 6(1) [ 5 6 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 56 principle satisfy both parts of this axiom. FEO is satisfied because individuals with similar levels of talent and motivation are to be given the opportunities necessary to exploit their talents in competitions that determine who gets the best social positions.The DP is also satisfied, for it tolerates inequalities so long as over time the benefits to the least advantaged are as great as possible. The DP expresses the idea of reciprocity, and its intent is to regulate the tension between efficiency and (in)equality among free and equal citizens, so that ‘those who gain more are to do so on terms acceptable to those who gain less, and in particular to those who gain the least’ (Rawls, 2001: 123). Indeed, reasonable investments in the talents and abilities of some allow for what Rawls calls ‘mutually beneficial complementarities,’ which may – and, with the reciprocity constraint, ought to – enhance the quality of life of others possessing fewer talents. For example, persons with certain talents in medicine may contribute both to the field of medicine generally (comprising many specialties) as well as to the broader society in need of medical services. And it is not an injustice to permit some to excel in certain pursuits while leaving excellence in different pursuits to others. It is only an injustice when opportunities and their rewards are provided for some at the expense of others. Rawls further explains how reciprocity frames the moral responsibility of the more fortunate: [T]he better endowed (who have a more fortunate place in the distribution of native endowments they do not morally deserve) are encouraged to acquire still further bene- fits – they are already benefited by their fortunate place in that distribution – on condi- tion that they train their native endowments and use them in ways that contribute to the good of the less endowed (whose less fortunate place in the distribution they also do not morally deserve). Reciprocity is a moral idea situated between impartiality, which is altru- istic, on the one side and mutual advantage on the other. (Rawls, 2001: 76–7) So the DP supplies a reciprocal basis for aiding the highly abled, and its primary justification is to secure justice for those less abled. Put another way, higher compensation earned by the better endowed would be predicated on developing and using the talents in labor that will benefit the worst off. Indeed, higher compensation becomes the incentive to develop and use the talents of the more able in a specific way, and how the economy is shaped (e.g. through labor and taxation law) ought to ensure that higher compensation for the more talented benefits the worst off. (This is the thinking behind state incentives designed to pay the most experienced teachers higher salaries if they will agree to teach for an extended period in its most underperforming schools.) Reciprocity, on Rawls’ theory, is the basis for our responsibility to others in a system built on fair terms of cooperation. Others deserve consid- eration not on the basis of whether or not they possess certain abilities but rather because they share in common the moral qualities of being human. These qualities include physical and psychological integrity and a capacity for Merry: Educational justice and the gifted [ 5 7 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 57 sympathy and mutual respect. A number of problems attend the DP vis-a-vis the disabled, which I shall not discuss here.13 While FEO and the DP thus appear to be a promising foundation for special educational provision for the gifted, insuperable difficulties remain. First, opportunities – such as special educational opportunities for the gifted – generally can not be justified on the basis of morally irrelevant factors, such as native endowments, i.e. those one does not morally deserve. So the gifted do not deserve special educational accommodations in the moral sense of being entitled to or having earned special treatment by virtue of their native endow- ments. Further, opportunities for the more able and talented are bound by the moral constraints of reciprocity, and failures of reciprocity in existing societies would undermine the apparent Rawlsian basis for special educational provision for the gifted. In existing societies, it is unclear how gifted education and rewards for the more talented would reliably lead to benefits for the less advan- taged. So while FEO and the DP go some distance in correcting the defects of formal equality of opportunity – careers open to talents – and do not prohibit properly structured differential provision, FEO nevertheless not only fails to supply us with the justification required for additional resources (if and when they are needed) in order to adequately challenge gifted children, it also fails in my view to support an argument for gifted education. DP may permit the investment of additional resources in the education of gifted students in some circumstances, but does not require it. In the circumstances of justice in which it would be permitted, the consequentialist considerations noted above might recommend it, but in the unjust circumstances of existing societies those consequentialist considerations would not be sufficient to overcome the prima facie injustice of favoring those already favored in the lottery of talents. w h at a r e t h e g i f t e d o w e d ? The question before us invites both empirical and philosophical responses. Empirically, owing to a number of contingencies that will need to be worked out in specific school districts, there is no definitive answer to this question, though I will later discuss a number of specific strategies which teachers and school districts may employ.Yet, philosophically, ethically, it does seem to me that we can say the following: the gifted are owed what all children are owed, namely, a quality education that adequately challenges them. Defining both adequate and challenge is itself difficult, but we can say this: to be adequately challenged is to be presented with tasks that demand substantial growth in ability, understanding and the ability to flourish, together with the resources and encouragement necessary to succeed in those tasks. Remember that flourishing entails the capacity to freely act upon one’s choices and live them from the inside. Adequate educational Theory and Research in Education 6(1) [ 5 8 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 58 challenges ought to stimulate a broader range of personal interests (not to the exclusion of communal interests); these supply persons with the sorts of intrinsic benefits that enable critically informed choices and the capacity to identify with a way of life from the inside. Flourishing in this sense is closely related to at least a weak form of autonomy: those who are adequately challenged are more likely to explore and reflect upon the merits of various options and pursuits, and are in that sense autonomous and more likely to lead flourishing lives. Less abstractly, an education that fails to challenge has implications for motiv- ation and learning. Gifted children who lack motivation or interest in school because they are only given educational opportunities challenging enough for ‘average’ learners are less likely to flourish because flourishing is linked to the eagerness to learn. Hence, educational attainment or success in school is directly tied to the level of motivation children experience vis-a-vis the sorts of educational tasks and projects they are given. Now, of course, it may be that some children are so constituted that the knowledge, understanding, skills and virtues that educators aim to impart come rather easily to them, and, even in the absence of a challenging educa- tion, flourish all the same. Neither flourishing nor autonomy is necessarily undermined in the absence of challenge.Yet the ease with which some learners master new challenges misses the point. Merely because some individuals possess the knowledge and skills they need, or manage to do rather well in life despite being seldom challenged in school is no reason to abdicate the respon- sibility to challenge all students. Gifted children, like all children, deserve an education that challenges them. Of course, how to determine what constitutes an adequate challenge and in what ways these challenges are best executed must be decided on a case-by-case basis. So the gifted are at least as deserving of an education that challenges them as more average learners, or learners with disabilities. An education that fails to challenge the gifted – or worse, which facilitates boredom – is no education at all because the main benefit that schools allegedly provide is learning, and to fail to supply this benefit is to vitiate the justification needed for a school’s paternalistic control. Put another way, to be remiss in one’s responsibility to supply an education that adequately challenges children is to show neglect both to the individuals themselves and potentially to others. It is a form of neglect to the gifted because, as I have stressed, an education that fails to adequately challenge may undermine one’s well-being, i.e. one’s ability to flourish, and it is potentially a form of neglect of the well-being of others inasmuch as the absence of cultivated talents and abilities may also be injurious to the well- being of others. Investing additional resources so that the gifted may be adequately challenged, then, is no injustice except when doing so constitutes a form of neglect of others. Nevertheless, the difficulties in determining what Merry: Educational justice and the gifted [ 5 9 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 59 constitutes an ‘adequate challenge’ will remain unresolved because the means for ascertaining what counts as ‘adequate’ are inescapably contestable.14 Objections In much of the foregoing discussion I have been considering whether special educational provision is justified for gifted children where this involves additional expense.Though adequate challenges for the gifted do not, in many instances, require additional expense (a point I return to), I take up the subject of additional expense both because advocates for gifted education assume this to be necessary, and also because some – albeit rare – cases of exceptional children may warrant it. As I see it, there are at least two reasonably strong objections to increasing monetary allocations that aim to enhance learning opportunities for the gifted. These are: (1) the return on the investment may be too low, and (2) a scarcity of resources precludes dispensing additional resources to learners who suffer no manifest social disadvantages. The first objection says that the investment of additional resources in a gifted student may not yield needed talents or the benefits such talent might lead to. Policy makers (and others) have no way of knowing (a) whether the extra investment will translate into goods or services that benefit the talented individuals in question, or other, less talented, persons, but also (b) whether the gifted would nevertheless achieve the various breakthroughs in human endeavor, even in the absence of special provision. Thus the question arises: if there is not a high probability that education to improve the learning outcomes of the gifted will lead to skills and intelligence that, say, advance new technologies that aid humankind, is the allocation of scarce resources for gifted education defensible? Empirically speaking, it seems reasonable to say that public support for funding gifted programming will likely falter if the allocation of resources shows no obvious benefits.15 The most basic difficulty with this objection is that I argue children deserve an education that adequately challenges them, and a conception of what children deserve is not undermined by the observation that what they deserve does not always produce the benefits hoped for. Another difficulty with this objection is its unreasonably high expectations. Most gifted children cannot reasonably be expected to contribute great things to society, and tying educa- tional provisions to guaranteed, or even probable, outcomes would be worrying for more than the gifted. Indeed, if outcomes must correspond directly with the resources allocated, then we will have a difficult time justifying not only extra provisions for the disabled, but also a free public education to all.16 I trust that additional provision for persons with disabilities needs no further defense here.Yet reasons for a free public education to everyone are also easy Theory and Research in Education 6(1) [ 6 0 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 60 to locate: the public has an interest in developing the capacity for deliberative and responsible citizenship, as well as expanding opportunities to make informed decisions, including the capacity to select meaningful work and be economically self-reliant. None of these is trivial.Yet with the possible excep- tion of the economic benefits of education – which is demonstrable but in any event is not its principle justification – none of these requires that high school graduates contribute to society in a particular way beyond perhaps minimal civic compliance (e.g. operating within the confines of the law). In a free society, individuals must be allowed to desist from exercising their talents or abilities because, however we may lament the misapplication or neglect of talent and ability, legitimate arrangements in a free society cannot abide compulsion to exercise them. The second objection, that a scarcity of resources precludes dispensing additional resources to learners who suffer no manifest social disadvantages, derives from real-world limitations and budgetary constraints. In a world with limited resources there is often a triage effect in which the administrators of funds must decide whose needs are more pressing. Across the United States, budget deficits have resulted in reduced funding for many educational programs, including music, art, athletics and ‘enrichment’ programming. Conversely, funding for children with disabilities has either increased or remained stagnant. Against this background, advocates for gifted education sometimes argue that the gifted qualify as students with special needs and are therefore deserving of an education that sufficiently challenges them. With IDEA legislation in the background, the demand here is for equity in the form of equality of resources with accompanying pleas for flexible (homogeneous) grouping, adaptive pacing, or supported opportunities to develop the interests of the gifted (Tomlinson 2005;VanTassel-Baska 2005b).Yet the parallels of children with disabilities to gifted children is fraught with difficulties. As previously mentioned, IDEA provided children with physical or cognitive disabilities access to a free education for the first time in American history.The legislation places the burden on the State to fund and provide educational services where previously the burden had fallen almost entirely on parents and their limited resources. Educational services for children with disabilities was a signif- icant advance over what was previously an almost complete absence of educational provision for these children – a flagrant example of discrimination. Yet the justification for educational services for children with disabilities surpasses basic Fourteenth Amendment rights and protections. Some children, owing to the cognitive or physical challenges they face, require infinitely more resources in order to even approach the same opportunities others enjoy.A child who is hard of hearing, for instance, depending on the severity of her condition, will require additional staff, supplemental services such as speech therapy, FM systems, and Merry: Educational justice and the gifted [ 6 1 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 61 curricular accommodations simply in order for her to glimpse a range of oppor- tunities that come easily to those without hearing loss. So the conflation of the educational needs of the gifted with those of students with disabilities is morally objectionable. Two additional factors must be examined. First, resources for those with disabilities can not be limitless. Reasons may be provided for capping allow- able expenses that a school district is able to spend given the other exigencies with which it must contend. In other words, a school district will not be justified in allocating resources for children with disabilities that are unduly dispro- portionate to what is spent on other students. By ‘unduly disproportionate’ I mean such as would compromise the quality of learning of ‘average’ learners or those who are gifted. Further, for some children with disabilities, enhancing their learning opportunities and thus their quality of life still may be insuf- ficient to surmount the limitations the disability imposes. The severity of the disability may simply disallow significant quality of life improvement. Spending decisions will need to be made on a case-by-case basis using an agreed set of criteria. Second, it is certainly true to say that the gifted face obstacles that lessen their chances of receiving an education that fully develops their potential.Yet given the usually diminished range of capabilities children with physical or cognitive disabilities endure, appeals to maximizing educational opportunities for the gifted (or anyone else) will have little weight.This is because resources are limited and because the cost of maximizing specific types of educational goods for some will likely lead to the neglect of other goods and services (Scheffler, 1985; Gutmann, 1999). Unless gifted children suffer from manifest social disadvantages (and many do), it is far from obvious that children who already possess extraordinary intel- lectual gifts deserve additional resources in order to enhance their learning out- comes when justice may require prioritizing those with learning impediments. However, I have argued that prioritizing any group at the expense of others will conflict with the requirements of educational justice. Of course, justice does not require that educational provisions are equal, only that they are equitable. Provided that all children are receiving an education that adequately challenges them, equitable educational provisions must allow for inequalities that result from the exercise of talents by differently abled and motivated persons. However, given the huge inequities that plague all liberal societies – and some more than others – justice requires that when extra provisions are made to enhance the learning opportunities of highly able persons (and these provisions need not be limited to schools) the justification for doing so must be compelling indeed. I am arguing that the need to adequately challenge all children in the education they receive may be that justification, even as we note that doing so may be expensive. (However, as I shall note in the next section, many of the Theory and Research in Education 6(1) [ 6 2 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 62 gifted can be adequately challenged in ways that require no additional expense.) Of course, state policies and services that aim to abolish endemic inequities such as child poverty would go a much greater distance in achieving justice. For many, poverty – and its correlates like poor health – impair even the will to learn let alone the capacities to be educationally developed. Nevertheless, no amount of justice will remove the differences in motivation and talent that distinguish persons from one another. Ideally, gains that result from providing the exceptionally able with adequate challenge should also redound to others, and perhaps especially those whose environmental conditions have precluded access to similar opportunities, or whose physical or cognitive endowments have been shortchanged in the natural lottery. However, I have shown that many obstacles may foil such favorable out- comes, not the least of which is that gifted persons may abstain from exercising their talents and gifts in ways that benefit others. p r a c t i c a l c o n c e r n s When cases come to light which suggest unusually high ability in more than one area, it will need to be determined how best to organize learning opportun- ities to serve these students. In some instances, a case may need to be made for altogether separate and advanced instruction.This may take the form of college coursework, independent study, private tutoring or home-schooling, even at the State’s expense. In many cases schools simply will not have the trained staff or resources to adequately challenge exceptionally abled children. Yet given the difficulties in defining giftedness that I discussed earlier in this article, determining which children qualify in each subject will remain contested territory. I have focused on a fairly broad interpretation of cognitive ability in part because far more difficult cases involve diagnosing unusual affective or intuitive ability. A clear case might be a nine-year-old who demonstrates advanced mathematical ability in trigonometry, for instance. Whatever the case, the difficulties do not disappear once unusual ability is ascertained. It will remain to be seen whether further investment of energies ought to be given to developing other, as yet unrealized, areas of ability, and it will also need to be determined whether the school possesses the resources to adequately challenge such a pupil or whether recommending services beyond what the school can provide is appropriate. It is important to remember that we are likely talking about an extremely small per- centage of children who are of school age. Most evidence suggests that the vast majority of children currently enjoying high ability homogeneous grouping or gifted and talented programming in American public schools do not qualify for the simple reason that most of these children are not so much gifted as they are socially privileged (Borland, 2005; Ford and Harris, 1999). Merry: Educational justice and the gifted [ 6 3 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 63 Separate and/or advanced instruction for the few whose extraordinary abil- ities surpass their peers by many years will not remove the temptation for socially privileged parents to apply pressure to school administrators to allow their child to participate. Many of these will be parents who are already accus- tomed to having their way with school administrators and believe that their children are more special than ‘other people’s children’. To avoid the inevitable demands wealthier and more educated parents will make, clear rules will need to be drawn up, multiple diagnostic systems will need to be in place, and State oversight will need to ensure that fair procedures are consistently applied. In order to optimize the prospect of children interacting with others of varying abilities, preferences, perspectives and the like, a number of researchers have made compelling arguments for well-planned heterogeneous grouping, as well as curricular choice and multi-age classrooms which allow teachers more flexibility in scaffolding learning opportunities less in accordance with grade-level expectations and more closely allied to individual interests. There is no point in denying that some children learn faster than others or possess a knowledge base that exceeds those of their peers. But homogeneous grouping and separate provisions for faster learners is a poor way of addressing differences among students.17 The effects for children who are grouped low include all of the problems associated with stigmatization and disadvantage: lower self-image, alienation from learning and from school, and resentment towards classmates who advance in school at their expense (Davies et al., 2003; Ireson and Hallam, 2005; Lucas, 1999). The answer to these challenges is not that quick learners should be punished or ‘held back’ so that the learning opportunities of slower learners are ensured. Rather, where it is used, class- room grouping must be equitably structured to benefit all learners. Of course, adequately challenging all learners is easier said than done. In all areas, including education, this requires more than simply removing the formal barriers of discrimination. For starters it will require that school adminis- trators and teachers become better attuned to the learning needs of the stu- dents they teach. This may include more culturally relevant curricula and teaching methods, but also more effective and consistent efforts to connect with the students’ parents.18 And it will most certainly require adequately challenging all children irrespective of their socialization, personality, or set of preferences. Adequate challenges may take several forms, including: cluster grouping/ ‘enriched learning’ in specific subjects; extracurricular programs; alternative scheduling patterns; mentorships; combined classes; self-paced instruction; concept- or problem-based learning; non-graded classrooms; grade skipping or acceleration; grade telescoping (i.e. time compression of junior/senior high school curriculum); and early college entrance (Renzulli, 2005;VanTassel-Baska, 2005b). Theory and Research in Education 6(1) [ 6 4 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 64 Some (Purdy, 2007) have argued that accelerated learning opportunities simply make good economic sense, while others (Clark, 2005) suggest that leveling or flexible grouping (combined with multilevel reading selections and opportunities for in-depth research and group projects) better serves all students. However, typically these recommendations are made available only to children deemed to be ‘gifted’. Yet, with the possible exception of grade telescoping, grade skipping and early college enrollment, all children can benefit from the differentiated instruction proposals above.That several of these require a departure from the status quo is no reason to sidestep the responsibility to pursue them. Good teachers look for ways to expand opportunities for student self-selection; know how to exploit mentorships; maintain high expectations; use a variety of resources and instructional strategies; and employ continuous and varied assess- ment tools. Most of these involve no additional expenditure. c o n c l u s i o n s In this article I have specifically examined two questions. First, in asking what constitutes a gifted person I have cast doubt on whether giftedness as it is presently conceptualized is sufficient justification for maintaining high ability grouping or separate gifted instruction. I have also examined whether children with unusual abilities can be compared with those with disabilities and have found the comparison wanting. Second, I have examined whether gifted children are owed additional educational provisions as a matter of justice. I have shown that the gifted may be adequately challenged in schools without additional expense but that some cases clearly warrant alternative solutions that may incur additional cost. Above all, I have argued that gifted children deserve to be adequately challenged as much as anyone else – so long as those challenges do not compromise the education of other children – because, to a significant degree, their ability to flourish hinges on it.Therefore, whether teachers facilitate adequate educational challenges for all children is a matter of paramount ethical importance. When denied an education that challenges them, all children, including the gifted, suffer neglect. I have conceded that determining whether a child has been adequately challenged is indeterminate partly because its meaning must be decided upon in different times and places according to the availability of resources, the complexity and specificity of needs, and the political will to address those needs. I have also pointed out that various incentives, methods and programs may be used to adequately challenge students; further, meaningful assessments will need to be developed to indicate with some degree of reliability whether students have demonstrated significant growth. Where reliable diagnostics determine actual cases of exceptionality, staff will need to determine whether that student can realistically be well served in the public school or whether she is better served Merry: Educational justice and the gifted [ 6 5 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 65 elsewhere. Either way, justice will require that such a student is adequately challenged even as we must concede that what is meant precisely by ‘adequately challenged’ remains, for the moment, an unsettled matter. Gifted or not, no child deserves merely the educational minimum;19 rather, each child deserves to be educated in ways that stimulate and provoke critical thinking and creativity regardless of parental input, teacher recommendation and test scores. Yet, currently, more needs to be done to distinguish the truly gifted from the socially privileged. Ending grouping practices and programming that favor the children of the socially privileged will require administrative back- bone, instructional differentiation, and generally more planning and effort – there’s no getting around that.Yet, if teachers are attuned to the needs of their students, classroom instruction can be arranged so that learning opportunities are enhanced (though not maximized) for all children and not just a lucky few. And what is education for in the first place, if not to foster the intellectual and developmental growth of all children according to their individual needs? a c k n o w l e d g e m e n t s I am grateful to Eamonn Callan, Randall Curren, Doret de Ruyter, Michael Hand and Charles Howell for their useful feedback, and also to Bill New and Matt Tedesco for comments on an earlier draft. n o t e s 1. In 1990, the Americans with Disabilities Act was passed, moving the protection of persons with disabilities further into the public sphere. Exceptions remained in the private sphere.Thus private schools are not held to the requirements of the legislation. In 1997, the Act was reinstated with a few more provisions. 2. Trends in the United Kingdom appear to be moving in the opposite direction. The British schools minister Lord Adonis announced recently that the bright- est 5 per cent of pupils are to have their names entered into a national register. All secondary schools in the United Kingdom will receive letters encouraging teachers to recommend the names of pupils they wish to be entered into a database for gifted and talented so that their progress can be tracked as they move through school. Children are to be selected according to both academic test results as well as abilities in music, drama, dance and sport. Though the stated aim of the British government is to widen access for pupils from poorer backgrounds, the outcry against the initiative by teachers’ unions and education theorists suggests that a national register will give middle-class parents even more reason to pressure their children to succeed on high stakes exams, as well as pressure school officials to select their children. See Cassidy (2006). 3. In fact, more than 30 states have legislation providing special programming for gifted learners. 4. Of course, parents of the gifted do not usually object to special services being provided for children of poor families; they merely ask that the schools their Theory and Research in Education 6(1) [ 6 6 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 66 children attend provide the kinds of differentiated instruction that will suffi- ciently challenge them. 5. This is a bold and controversial claim for which there is no conclusive proof.The basis for my claim is threefold: (1) the available (albeit conflicting) studies which suggest that truly exceptional children are quite rare; (2) my experience as a teacher, researcher and a staff member in four separate schools districts of varying size; finally, (3) my professional experience with socially privileged undergradu- ates, many of whom have undeservedly received the gifted label in high schools. In fact, there are no reliable statistics available suggesting what percentage of the population is exceptionally able. However, a fairly significant percentage of chil- dren manage to enjoy the gifted label in American schools. Davidson and Davidson (2004:18) write:‘As many as one in six American students between the ages of four and eighteen – some 10 million young people – receive this label [gifted] for scoring one standard deviation or more above the norm on intelli- gence tests.’ Incidentally, this is consistent with the figures emanating from the United Kingdom, where a recent report from Wales indicated that 27 per cent of school children were assessed as ‘having more academic ability’. See Isaac (2006). Even so, of the 62 million school-age children in the United States, only 62 thou- sand have IQs over 145, a fairly small number. See Cloud (2007). 6. Gardner himself rejects the association of multiple intelligences with claims for gifted education (1999: 89), though this has not prevented gifted advocates from appropriating his theory. 7. T. M. Scanlon (1995: 112–13) notes that well-being relates to ‘an idea of the quality of a life for the person who lives it that is broader than material and social conditions, at least potentially broader than experiential quality, differ- ent from worthiness or value, and narrower than choiceworthiness all things considered.’ John White (2007) adds that well-being is desire dependent, cul- turally specific and circumscribed by a loose collection of people. Further, the ‘most authoritative voices on what constitutes our well-being are among those with a wide acquaintance with all sorts of goods’ (White, 2007: 23). 8. Naturally, parental involvement varies considerably. While stereotypes seldom allow for it, the fact remains that many poor parents invest immeasurably in their child’s education while many a wealthy parent is indisposed and uninterested. 9. Each of these vocations implies a significant amount of social prestige. Many others not mentioned here are unquestionably complex roles requiring unusual ability.The skills many short-order cooks and administrative assistants possess seem to me to be illustrative examples. 10. I am not interested to settle here whether it is justifiable for wealthy parents to ensure certain advantages for their children. Compelling arguments tug in opposite directions concerning what the proper bounds of parental advocacy entail. See the discussions in Swift (2003) and Archard and Macleod (2002). My interest here is merely to point out the manner in which some parents provide advantages for their children that potentially harm other children. 11. This may take a variety of forms, including a progressive tax code carefully designed to benefit the less-advantaged. Merry: Educational justice and the gifted [ 6 7 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 67 12. Rawls’ formulation requires both that the Liberty Principle (i.e. the first prin- ciple of justice) as well as the principle of equality of opportunity be lexically prior to the DP. The Liberty Principle states that ‘each person has the same indefeasible claim to a fully adequate scheme of equal liberties, which scheme is compatible with the same scheme of liberties for all’ (Rawls, 2001: 42). Lexical priority means that the conditions for the former must first be satis- fied before opportunities are to be arranged that benefit the least advantaged. This means that the least advantaged are not to be prioritized if and when liberty is infringed upon, such as when some persons with disabilities argue that medical intervention is an affront to their autonomy. Indeed, many persons with disabilities exercise their basic liberty in refusing corrective measures (e.g. cochlear implants).Therefore, left on its own the DP is hamstrung, for Rawls’ second axiom of justice clearly allows for inequalities that result from the exercise of talents owned by differently abled and motivated persons. 13. For example, Rawls’ theory assumes that all persons operating within a system of fair cooperation operate ‘within the normal range’ of functioning, and the moral powers on which this system is based are described entirely in cog- nitive terms, thus seeming to exclude those with severe mental impairments. For a recent critique of Rawls on exactly this point, see Nussbaum (2006). 14. Asking children whether they feel adequately challenged will prove as unre- liable as administering tests that some will interpret to mean that high scorers are not being challenged enough. 15. With little difficulty one could catalogue a long list of tragic Western artists and intellectuals whose talents and abilities did little more than facilitate egoistic and fruitless pursuits while bringing untold suffering onto others whose lives they shared. 16. Due to the inequitable effects of funding schemes, local control, racist lega- cies and the vagaries of personal circumstance, equality of opportunity remains an unrealized ideal, but its promise nonetheless is embedded in the justification for its provision in the first place. 17. Most studies – inside and outside the United States – suggest that homoge- neous ability grouping benefits high end learners. See Desbottes and Nicholls (n.d.); Gamoran (1986, 1992); Ireson and Hallam (2005). Other studies produce conflicting results.Whatever the level of perceived ability, many believe that the pace of instruction, matched to students of like perceived ability, may provide opportunities to accelerate or reinforce the necessary skills students need to acquire. Nevertheless, critics contend that grouping greatly disad- vantages students lacking in the skills other children bring to school by virtue of their social class background. 18. Clearly smaller districts with a low mobility rate will have an easier time with this. 19. Nevertheless, the current emphasis on ‘proficiency’ in the US under the No Child Left Behind Act (2002) accords well with the Supreme Court senti- ment that the State is not required to provide an ideal education but merely a basic education. Hence, the allocation of resources to move students beyond proficiency is simply not on the table. Theory and Research in Education 6(1) [ 6 8 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 68 r e f e r e n c e s Archard, D. and Macleod, C., eds (2002) The Moral and Political Status of Children. Oxford: Oxford University Press. Borland, J. H. (2005) ‘Gifted education without gifted children: The case for no conception of giftedness’, in R. Sternberg and J. Davidson (eds), Conceptions of Giftedness, pp. 1–19. New York: Cambridge University Press. Borland, J. H. and Wright, L. (1994) ‘Identifying and educating poor and underrep- resented gifted students’, in K. A. Heller, F. J. Monks, R. J. Sternberg and R. F. Subotnik (eds), International Handbook of Research and Development of Giftedness and Talent, pp. 164–171. London: Pergamon Press. Callahan, C. M. and Miller, E. M. (2005) ‘A child-responsive model of giftedness’, in R. Sternberg and J. Davidson (eds), Conceptions of Giftedness, pp. 38–51. New York: Cambridge University Press. Cassidy, S. (2006) ‘Do bright children need to be taught separately, and is it good for them?’, The Independent (12 July): 31. Clark, L. (2005) ‘Gifted and growing’. Educational Leadership 63(3): 56–60. Cloud, J. (2007) Failing our geniuses. Time (27 August): 41–6. Davidson, J. and Davidson, B. (2004) Genius Denied: How to Stop Wasting our Brightest Young Minds. New York: Simon & Schuster. Davies, J., Hallan, S. and Ireson, J. (2003) ‘Ability groupings in the primary school: Issues arising from practice’, Research Papers in Education 18(1): 45–60. Desbottes, A. and Nicholls, T. (n.d.) ‘What is the impact of cross-phase, cross- curricular learning on gifted and talented pupils?’, Education Review 18(1): 79–84. Ford, D.Y. and Harris, J. J. (1999) Multicultural Gifted Education. New York:Teachers College Press. Gamoran, A. (1986) ‘Instructional and institutional effects of ability grouping’, Sociology of Education 59: 185–98. Gamoran, A. (1992) ‘Is ability grouping equitable?’, Education Leadership 58(7):11–17. Gardner, H. (1999) Intelligence Reframed. New York: Basic Books. Gordon, E. W. and Bridglall, B. L. (2005) ‘Nurturing talent in gifted students of color’, in R. Sternberg and J. Davidson (eds), Conceptions of Giftedness., pp. 120–146. New York: Cambridge University Press. Gutmann, A. (1999) Democratic Education, 2nd edn. Princeton: Princeton University Press. Harry, B. and Klingner J. (2006) Why Are There so many Minority Students in Special Education? Understanding Race and Disability. New York:Teachers College Press. Heller, K. A., Perleth, C. and Lim, T.K. (2005) ‘The Munich model of giftedness designed to identify and promote gifted students’, in R. Sternberg and J. Davidson (eds), Conceptions of Giftedness, pp. 147–170. New York: Cambridge University Press. Ireson, J. and Hallam, S. (2005) ‘Pupils’ liking for school: Ability grouping, self- concept and perceptions of teaching’, British Journal of Educational Psychology 75: 297–311. Isaac, J. (2006) ‘A talent for doing best for the gifted’, The Times Educational Supplement Cymru (7 July): 5. Lareau, A. (2002) ‘Invisible inequality: social class and childrearing in black fami- lies and white families’, American Sociological Review 67(5): 747–76. Merry: Educational justice and the gifted [ 6 9 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 69 Losen, D. J. and Orfield, G. (2002) Racial Inequity in Special Education. Cambridge, MA: Harvard Education Press. Lucas, S. (1999) Tracking Inequality: Stratification and Mobility in American High Schools. New York:Teachers College Press. Moore, J., Ford, D. and Milner, H. R. (2005) ‘Underachievement among gifted stu- dents of color: implications for educators’, Theory into Practice 44(2): 167–77. Nussbaum, M. (2006) Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge, MA: Harvard University Press. Ogbu, J. (2003) Black American Students in an Affluent Suburb: A Study of Academic Disengagement. Mahwah, NJ: Lawrence Erlbaum Associates. Purdy, L, (2007) ‘Educating gifted children’, in R. Curren (ed.), Philosophy of Education: An Anthology, pp. 314–19. Oxford: Blackwell. Rawls, J. (2001) Justice as Fairness: A Restatement. Cambridge, MA: Harvard University Press. Renzulli, J (2005) ‘Applying gifted education pedagogy to total talent develop- ment for all students’, Theory into Practice 44(2): 80–9. Rothstein, R. (2004) Class and Schools: Using Social, Economic, and Educational Reform to Close the Black-White Achievement Gap. New York:Teachers College Press. Scanlon, T. M. (1995) What We Owe Each Other. Cambridge, MA: Harvard University Press. Scheffler, I. (1985) Of Human Potential: An Essay in the Philosophy of Education. Boston: Routledge and Kegan Paul. Swift, A. (2003) How not to be a Hypocrite: School Choice for the Morally-Perplexed Parent. London: Routledge. Tomlinson, C. A. (2005) ‘Quality curriculum and instruction for highly able stu- dents’, Theory into Practice 44(2): 160–6. VanTassel-Baska, J. (2005a) ‘Domain-specific giftedness’, in R. Sternberg and J. Davidson (eds), Conceptions of Giftedness, pp. 358–376. New York: Cambridge University Press. VanTassel-Baska, J. (2005b) ‘Gifted programs and services: What are the non- negotiables?’, Theory into Practice 44(2): 90–97. White, J. (2007) ‘Well-being and education: issues of culture and authority’, Journal of Philosophy of Education 41(1): 17–28. Winstanley, C. (2003) Too Clever by Half: A Fair Deal for Gifted Children. Stoke on Trent:Trentham Books. b i o g r a p h i c a l n o t e m i c h a e l s . m e r r y is visiting professor in educational studies at Beloit College and is the author of many articles in the philosophy of education. He is also the author of Culture, Identity and Islamic Schooling: a philosophical approach. [email: merrym@beloit.edu] Theory and Research in Education 6(1) [ 7 0 ] 086730_TRE_47-70.qxd 2/26/08 10:23 AM Page 70 
work_7oqukvc7wbfz7jcfpw6dbqqdnq	----	1 Running head: SEQUENCING JUSTICE SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS Robyn L. Holder and Kathleen Daly Griffith University, Australia Authors’ Note Correspondence concerning this article should be addressed to Robyn Holder, Griffith Criminology Institute, Griffith University, Mt Gravatt Campus, 176 Messines Ridge Road, Mt Gravatt, Queensland 4122, Australia. Phone: +61 (0) 7 3735 3440 Fax: +61 (0) 7 3735 6812 E- mail: r.holder@griffith.edu.au This is a pre-publication version. The published article is available in The British Journal of Criminology, azx046, https://doi.org/10.1093/bjc/azx046 (published online, 28 September 2017) and see https://academic.oup.com/bjc/issue © Robyn Holder and Kathleen Daly 20 July 2017 mailto:r.holder@griffith.edu.au https://doi.org/10.1093/bjc/azx046 https://academic.oup.com/bjc/issue 2 SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS Abstract What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. This article foregrounds the ways in which ‘justice’ matters to victims and how a desire for justice may change over time. We find that victims have multiple justice goals, which are ordered and unfold through the criminal justice process. The goals are directed towards three domains of victim, offender and community; and are influenced by both personal and public interests. Accountability is a threshold goal from which others—punishment, deterrence, rehabilitation or another—may be contemplated. From the perspective of victims, achieving justice is sequencing these goals through hybrid processes with differing degrees of victim participation. Keywords Justice goals, justice interests, longitudinal design, domestic violence 3 SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS Funding This work was supported by an ANU Miscellaneous Scholarship; a Regulatory Institutions PhD Scholarship; the Audrey Fagan Post Graduate Scholarship; and an Australian Research Council Discovery Grant [grant number DP130103775]. Acknowledgements We are indebted to the women who shared their experiences and to the Domestic Violence Crisis Service, Canberra, for helping make this possible. The first author would also like to thank Peter Grabosky for his guidance and support. 4 SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. Yet women’s preferences are often analysed and understood as competing choices, that is, between a substantive outcome or procedural justice, between conventional or restorative justice, and between private or public justice amongst others (for review, see Daly and Stubbs 2006). The key problem is that evidence on this question is gathered at a single point in time. The desires for justice are more complex, in part, because they unfold over time and in different socio-legal contexts. To understand ‘what women want’ from criminal justice is better captured with a prospective longitudinal design. This article presents interviews with women on three occasions after their victimization by a male partner or ex-partner, and at different points in the criminal justice process.1 It finds that the women have multiple justice goals and prefer to realize them through hybrid processes—a phenomenon we term ‘sequencing justice’. We build on Gromet and Darley’s (2009: 2, 4) insight that people have a ‘full range of justice concerns’ and ‘the ultimate goal of achieving justice’ is reached by the progressive realization of sub-goals. Their laboratory research concluded that achieving justice was not accomplished by punishment of the offender alone (2009: 29), but that people were equally concerned with other objectives. In ‘real world’ research on female victims of domestic violence, studies have provided snapshots of women’s experiences of police (Hirschel and Hutchison 2003; Hoyle and Sanders 2000), prosecution (Hare 2006), and courts (Bell et al. 2011), and their attitudes towards and satisfaction with criminal justice overall (Barata 2007; Erez and Belknap 5 1998; Fleury 2002; Smith 2001). However, no study to date has sought to determine women’s expectations of and goals for justice from the beginning to the end of the criminal justice process. Some have interviewed women on two occasions: a US study identified women’s concerns with how their case was handled in court (Bell et al. 2011), and a Scottish study explored how women engaged the justice system to constrain a violent partner (Lewis et al. 2000). Other US studies have interviewed women on three occasions (Fleury-Steiner et al. 2006; McFarlane et al. 2000). However, all these studies were retrospective.2 To date, none has used a prospective design,3 which reports women’s views and goals as their case moves through a legal process. Our study is the first to do so. It draws on the routines of criminal justice in an Australian jurisdiction—from reporting to police, to prosecution and through to the criminal court. At each stage in the process, women were asked what they wanted, why their goals were important, and what their preferred processes were to achieve the goals. Their responses were grounded in a multi-dimensional understanding of justice. Women, violence and justice Justice is a complex idea with many different associations (Sen 2009). It is a philosophical and juridical concept and a core social value. Dispensing justice is a primary function of legal institutions. There has been a tendency by researchers, policy makers and activists to assume the aspirations for justice of victims of domestic violence. An early and primary concern critiqued the state’s reluctance to enforce the norms of criminal law when confronted with domestic 6 violence (Dobash and Dobash 1992). Yet it soon became apparent that criminal justice was not always experienced by women as a benevolent force for good (Snider 1998). Searches for better or more effective ‘alternatives’ argued that the ‘conflict’ between private persons did not belong to the state in the first place (Christie 1977; Mills 1999) and that stronger (or more punitive) criminal justice responses created a dead-end for all concerned (Zehr 1990). The idea of diversion and restorative justice appeared to offer a radical departure (Strang 2002). An emphasis on responding to the harm of victimization was shared by those interested in therapeutic jurisprudence (Wemmers 2008), and reinforced by the conceptual framing of victim viewpoints and preferences as ‘needs’ (Herman 2005). The literature debating these approaches in response to gendered violence has become vast (Daly and Stubbs 2006), but in the process, the meanings of justice for victims became lost in searches for responses that were least harmful to them. Contemporary criminal justice has long been acknowledged as unsupportive of victims, but there is little evidence that healing and restoration are what domestic violence victims seek from state justice (Hare 2006). In their interactions with justice authorities, women victimized by domestic violence are similar to victims of other crimes in desiring to be treated with courtesy and fairness (Van Camp and Wemmers 2013). In addition, domestic violence victims generally initiate police intervention (Felson et al. 2005; Holder 2007). Focusing on women’s agency in initiating the involvement of authorities invites attention to their ‘active negotiation and strategic resistance both with their partners and with a range of helping agencies’ (Lewis et al. 2000: 180). In this light, women are making ‘justice claims’ (Daly and Stubbs 2006: 19-22). But, claims for what? The waves of debate return to the question of what justice women seek when they mobilize the law following domestic violence. 7 A number of scholars suggest that perhaps ‘justice’ is not viewed in a singular manner. As one of us says elsewhere, there are ‘intermingled’ aspirations for justice that may be meaningful in different ways and at different times (Daly 2000; see also Sen 2009). Part of the problem in knowing what justice women seek is methodological. Most studies ask women for their retrospective opinions (Herman 2005). Others enquire at different levels of analysis. For example, in some studies, women may be asked what justice they sought in their particular case (McGillivray and Comaskey 1999), whereas other studies ask women their general opinion about reform options for justice responses to domestic violence (Nancarrow 2006; Rubin 2010). Part of the problem is also conceptual. Some studies prioritize offender desistance as the objective of criminal justice (Visher et al. 2008) and others emphasize victim concerns (Barata 2007; Hare 2006). The array of justice practices, different experiences of victimization and diverse data collection problems have generated a rich, but confusing scholarship. In recognising the different ways that justice is understood and its institutions are experienced, researchers and advocates now acknowledge that, as agents, female victims of domestic violence are not limited to identities as ‘female’ or ‘victim’ alone. Rather, women are situated in differing and overlapping ways in social and political spaces, and with multiple relationships to authorities. From this perspective, we suggest that women making claims on public authorities for justice hold and project ‘interests’ in justice (Holder 2013/2018). The term conveys a broader and less personal justice lens than the term ‘needs’. It assumes that victims not only have a relationship with a violent person, but are also in a relation to state authorities. This is not to deny that victims of violence have needs, especially for safety and recovery (Minaker 2001). It is to say that when engaging public justice and looking through a broad justice frame, 8 additional aspirations and concerns are engaged, and as a consequence, multifaceted viewpoints emerge. In responding to these challenges, this study does not attempt to define a ‘successful’ intervention for women as victims of domestic violence or identify what makes them safer or more satisfied (Holder 2015). Nor does it delineate the contours of a particular model of justice. Rather, it provides a unique empirical exploration of women’s preferences—as justice sub-goals (Gromet and Darley 2009)—at the beginning of the regular criminal process and again at its later stages, and the meanings they bring to the idea of justice. A longitudinal prospective study The study’s methods are described more fully elsewhere (Holder 2013/2018, 2016) but in brief, women were interviewed on three occasions following their violent victimization by a male partner or ex-partner. The women, aged over 18 years, were a purposive sample invited to participate in the research through their contact with a domestic violence service. Data collection occurred over four years, from 2009 to 2013. The Time 1 interview took place after the police decided to charge the assailant with a criminal offence. This interview asked each woman why she had turned to the law, with what motivations and expectations, and what she wanted the court to decide. These court options were not hypothetical, but drawn from the study jurisdiction’s sentencing legislation. Women were also asked why they wanted those objectives, what they hoped to achieve, and what type of process they would prefer in order to attain those objectives. The Time 2 interview took place after the case had finished in court. Each woman was asked what she then thought about the decisions and outcomes made by the prosecution and by 9 the court, and why she held that view. Each was then asked again about the type of process she would have liked. The time between the first and second interviews varied. The shortest time was two months and the longest was 24 months. The wait time for the second interview depended on when each individual case was finalized at court. The Time 3 interview was conducted six to eight months after the case had finished in court. Each woman was asked what she now thought about justice, in particular, whether justice was done and why.4 The longitudinal design facilitated real time attention to women’s different engagements with and judgements of law enforcement, prosecution, and court as distinct criminal justice entities. Longitudinal prospective studies are infrequent, in part, because they are difficult to carry out with both recruitment and retention problems (Plano Clark et al. 2014). These were mitigated by the first author’s long-standing relationships with justice and community agencies in the study jurisdiction.5 Nonetheless, sample attrition occurred. The study began with 27 participants at Time 1, which reduced to 21 at Time 2, and 14 at Time 3 (52% of the original number). Our analysis of attrition finds no substantial differences (that is, 10 percentage points or more)6 for those interviewed in Times 1 and 2 on socio-economic variables and those measuring personal agency, orientations to trust in institutions and in the law, relationship type and longevity, frequency or escalation of violence, or desires to continue the relationship. However, when moving from Time 1 to Time 2 and 3, an increasing share of women initiated the report to the police (67% to 76% and 86%) and a decreasing share wanted the police to make an arrest (from 44% to 33% and 21%). Differences were evident in the socio-economic profile for those at Time 3, compared to those interviewed once or twice. The Time 3 group was more likely to be tertiary educated and working in a white-collar occupation,7 a profile consistent with retention in longitudinal studies of women’s health (Young et al. 2006). In addition, the Time 3 group was in 10 a shorter-term relationship with the assailant (less than five years); they were less likely to want the court to sentence the offender to community service or to receive a written apology. However, for all three groups, there was consistency in their sentence priority for treatment outcomes. Our primary focus in this article is on those interviewed twice because it permits us to compare the same group of women over time. However, we shall also present selected findings from the Time 3 interview because they offer reflections on ‘the idea of justice’ more broadly. The demographic profile of the 21 women interviewed reflects that of the study jurisdiction, a generally affluent and educated population. The city hosts both federal and state government bureaucracies and four universities. Most women (67%) were in paid employment, full or part-time; and 38% of those employed were in white collar jobs. Equal proportions (48%) earned under AUD $45,000 and between AUD $45,000 and $100,000.8 Nearly all were Australian born (86%) although none was an Indigenous Australian, 43% had a university degree, and most (67%) had children living at home. The 21 participants were unusual in that all the assailants were arrested and their cases proceeded to criminal court; of these, all but two were prosecuted.9 Most domestic violence is not reported to authorities in Australia (Cox 2016), a finding similar to that for the United Kingdom (UK) (Walby and Allen 2004), the United States (Felson et al 2005), and Canada (Johnson 2006). When it is, police diversion of domestic violence to ‘out of court resolution’ may be more widespread than previously thought. For example, every police force in the UK except Scotland was found to divert domestic violence cases away from formal criminal justice resolution, despite a uniform police policy advising against it (Westmarland et al 2017). However, Garner and Maxwell’s (2009) review of a number of countries find that 34% of 11 reported offences proceed to prosecution, and when assailants are arrested, 59% proceed to prosecution, albeit with considerable jurisdictional variation. At the time of the incident that prompted police involvement, 52% of the women were in a relationship of five years or more standing. A majority (57%) were in a relationship with a husband or de facto who was the assailant. For 48% of the women this was the first time that they had sought help from police, but 29% had a protection order in place at the time of the incident. A majority (62%) said their situation was worsening. Before this most recent occasion of reported abuse, all but three of the 21 women had been abused previously by the assailant, with 43% (of N=18) saying that the abuse had happened ‘quite a few’ or ‘many’ times before. The experiences and accounts of the women are presented moving from the Time 1 to Time 3 interview. The first section describes 21 women’s general expectations of criminal justice at Time 1, and their specific aims and reasons in calling for police assistance. It describes their prospective preferences on the goals they sought from prosecution and the court and through what process. The next gives women’s retrospective assessments of the decisions actually reached by prosecution and court personnel at Time 2. The third section presents the women’s reflections about six to eight months after the case was finalized in court, with an analysis of 14 cases at Time 3. Time 1: Police Intervention Mobilizing law and accountability Turning to the law after domestic violence is not an obvious choice for many victims. However, like other research (Felson et al 2005; Holder 2007), most women initiated the call to police.10 All of them agreed with the statement that police viewed what happened to them as serious and 12 most felt that ‘the community’ shared this standpoint. Many expressed a sense of social support in calling police and drew on public discourse that ‘domestic violence is a crime’. Indeed, the study jurisdiction has pro-arrest and pro-prosecution policies, which may have influenced women’s views and decisions (Novisky and Peralta 2015). For example, Aimee11 said she ‘knew [it] was illegal, a crime. It was obvious to me … I just knew that this was not on and that the best way of dealing with it was to go to the police’. The women’s most common aims for police intervention were stopping the violence and a desire to be safe. Others wanted to get help for themselves or simply ‘to get out of there’. These are self-regarding motivations. In addition, the women said it was for the offender that they called police. Ursula wanted her husband ‘to get help’. Teresa said that she wanted her ex- partner ‘to know he was doing the wrong thing’. This type of language depicts offender-related objectives. Women were also motivated to protect others: their children, significant others and the public. With respect to children, Cathy expressed concern that ‘it happened in front of [our son] and I was hit in the stomach and was afraid for the baby. I was not having [our son] grow up thinking it’s okay’.12 Olivia was ‘fearful for the other person’ she was now involved with. In all three timeframes the women spoke in different ways about a trilogy of justice interests: for themselves, the offender and their community of others.13 Although most women had initiated the call to police, seven wanted an arrest made, five did not, and the rest were unsure or wanted other actions taken. Despite a degree of ambivalence, only five women said that they subsequently asked that charges arising from the incident be dropped. One did so because she felt her husband was mentally unwell, another because she felt shared culpability for the incident, another because she felt the arrest was sufficient to produce 13 changes in behaviour, and two because they were emotionally attached to and concerned for the violent person. Structuring their reasoning were strong views that the abuse was wrong. They used different expressions to say the violence was unacceptable and should not be swept ‘under the rug’. The violent person ‘needs to wake up’ and should ‘not get away with it’. They felt the ‘truth’ should be known; that the violent person ‘should know better, know what’s right and wrong’. On these points of wrongfulness, women asked that the violent person ‘accept responsibility’ and ‘be accountable for [his] actions’. These words comprised the elements of accountability, a hope that women repeated in their first interview and which grew in later interviews. Offender accountability served as a bridging concept from the situational drive to call the police to stop the violence and women’s contemplation of the justice process that lay ahead. Prospective justice goals All but two women expected that the justice system would be fair, an expectation that was also found in two US studies (Barata 2007; Bell et al. 2011). Women’s specific thinking about outcomes was probed in several ways. Looking ahead to the court process, they were asked what decision they would like the magistrate or judge to make, what sentence outcome they would prefer, and what principles of justice they thought were important to apply to their case. With 17 relevant sentence options in the jurisdiction’s legislation and nine possible justice principles, the interview kept definitions as simple as possible. For example, the principle of punishment was described as doing ‘something to punish/discipline/penalize/chastise the person’, and the principle of restoration was doing ‘something to recognize the harm caused and to help restore all parties’. 14 Of the 21 women, most (76%, N=16) wanted the court to render a guilty finding, and its meaning was simple: ‘he did it’, said Holly. The reason for her preference was ‘he’ll just keep doing it and think he can get away with it’. Two said they were neither in favour nor against a guilty finding. For the three women who did not want a guilty finding, all indicated that they wanted their relationship with the violent person to continue and they made mitigating comment on his behalf. Roslyn’s partner had previously been convicted of assaulting her. She shared a small business with him and wanted her relationship with him to continue. Although she had not wanted an arrest or guilty finding, she hoped to see, at some point, ‘an admission of responsibility for his actions’. Of the five who said that they had not wanted the violent person arrested, most said that they favoured a guilty finding. After stating a preference for a guilty finding, the women indicated the sentence outcome they favoured. They could choose more than one option as ‘essential, the highest priority’. Preferences clustered strongly for sentence outcomes that were rehabilitative of the offender, protective of the victim and the community, and which drew on the authority of the court. Least favoured was the imposition of a fine or for the violent person to perform a service for the victim. Then, when asked to specify their first and second priority out of these sentence preferences, women’s views sharpened. Of primary importance was that the violent person had some type of treatment: for drugs and alcohol, violence rehabilitation or mental health. Next was to have a custodial sentence of some type imposed: weekend detention, a suspended sentence or full-time custody. Finally, the women were asked to indicate which justice principle out of nine choices they would like a magistrate or judge to apply to their case. Their answers clustered strongly on the principle of rehabilitation (76% said it was of ‘utmost importance’), and then on principles of 15 victim protection and specific deterrence of the offender. While 29% of women said the principle of restorative justice was of ‘utmost importance’, most rejected the option of apology, whether made in person or in writing. More women (48%) thought that an apology was ‘undesirable and would make matters worse’ than those who thought it was essential (19%). In giving reasons for their preferences, women joined their thinking to the justice trilogy of victim, offender and their community of others. Their comments reiterated a desire for accountability and for recognition of the wrongfulness of the perpetrator’s behaviour, and unfolded in two ways. Polly’s comments are illustrative. First and for herself, Polly wanted to be safe—a self-regarding objective. Then, she went on to emphasize what ‘he’ needs and her goal for other ‘human beings’—the two other objects in the justice trilogy. She said, He definitely needs to be taught that it is absolutely wrong to hurt another human being. When he has paid his price, then there needs to be something in place so he never does it again; and there needs to be things available to help him and to help him be a better person. [Emphasis added] Polly also emphasized different consequences to the perpetrator for the violent behaviour. Her reasons combined concepts of censure (taught that it is absolutely wrong), punishment (paying a price), deterrence (he never does it again), and rehabilitation (things to help him). Nearly all women in the study voiced their multiple justice goals in this manner: specifying the object and giving the reason. Their goals were multi-directional, and their reasoning reflected different dimensions to justice. Polly’s comments above also reveal an ordering of her multiple goals. They are sequenced in that one follows the other: first censure, then punishment, then deterrence and then rehabilitation. 16 Prospective process preferences At Time 1, women were also asked through what criminal justice steps they could envisage achieving their multiple goals. They were provided with eight possible resolution pathways (in both visual and written format and as shown in Table 1) to a justice process that lay ahead of them. Different types of participatory activity in the pathways included giving a victim impact statement (VIS) and being part of a restorative opportunity.14 The latter was described as an occasion, with a trained facilitator, to discuss with the violent person what happened and what should happen next. Two groups emerged in the analysis. Four women (19%) preferred an informal justice process. They wanted the violent person to make an admission to the police, but then wished to see the case diverted from the criminal court process. They did not indicate an interest in the court making a guilty finding. These women wanted their relationship with the violent person to continue, and the reasons they gave for diversion focused on relationship repair. However, at times, their preference was qualified: ‘if he hadn’t hit rock bottom and bounced back, I might have a different opinion’, one said. A second group of 17 women (81%) preferred a formal justice process. Their first preference was for the case to be decided in court with a guilty finding. In this group, one woman wanted her relationship with the violent person to continue, five were unsure or thought ‘maybe not’, and 10 ‘definitely’ did not want the relationship to continue. After a court finding, this group split into two sub-groups with respect to pathways. One quarter wanted no or minimal participation by them as victim. They wanted the system to ‘deal with it’ or felt that more involvement from them would ‘make matters worse’. However, most wanted some participatory involvement, identifying varied sequence configurations. 17 TABLE 1: Women’s preferred justice process, n=21 at the Time 1 interview Process options Number In fo rm al ju st ic e pr ef er en ce s Diversion (19%, n=4) Admission, divert and mediate 3 Admission, restorative opportunity, no formal sentence 1 Fo rm al ju st ic e pr ef er en ce s No/minimal participation (24%, n=5) Finding and sentence 5 Participation, no restorative opportunity (24%, n=5) Finding, victim impact statement (VIS) and sentence 5 Participation and restorative opportunities (33%, n=7) Finding, restorative opportunity, no sentence 0 Finding, restorative opportunity, court hears agreement, sentence 3 Finding, sentence, restorative opportunity 1 Finding, VIS, sentence, restorative opportunity 3 18 The court’s guilty finding was an essential first step for those in the formal justice preference group. Women said that this decision made the perpetrator’s culpability clear. They also felt that, after this occurred, they as victims could then deliver information to the court about what to do next and the offender may be more strongly influenced by the court’s sentencing decision. Quinn, for example, said, ‘the fact that I don’t have to be around him and that it’s done by someone who is seen to be “the law” so it sends the message to him that what he’s done is not acceptable’. Eight of those who preferred a formal process felt it was also important for the court and the violent person to hear about the impact of the offence on them through a VIS. Janelle said this was ‘because I can tell him what [the abuse] has done and how it has made me feel. I couldn’t face him without being in the court because we’d just yell at each other’. However, reflection on the possibility of a VIS was not simply about conveying the harm done. Nada, for example, said that the Magistrate really needs to hear from the victim to make a proper decision. There is a lot lost between what happens and reading something off a paper. If they can read a VIS and ask questions, it would be good. They need to hear the whole history. The women viewed the VIS as being potentially influential on the decision-maker. Alice said, ‘I think what level of impact it [the offence] has made on my life now and at the time should be dealt with accordingly, which should aid their sentence’. Comments such as these show that the women wanted to see dialogue as not only flowing between victim and offender, but also triangulating with an authoritative decision-maker. 19 Seven women in the formal justice group preferred a participatory mix, including a restorative opportunity, after the authoritative finding. The reasons for this configuration tended to combine concerns for the violent person as well as for themselves. Karla, for example, said the following: [My ex-partner’s] actively taking responsibility for his actions and being part of deciding what should happen in front of me would be quite healing for me. At the moment he has nothing but hatred and blame for me and I’d like that responsibility to shift. The feeling of his consent to the sentence feels important. The judge can impose it but he can still not own it. Karla’s comment shows an interaction between her private (interpersonal) interests and her desire to see these ratified in a public forum or by a public authority—what we term her public interests. She wanted her ex-partner to face her and take responsibility for his behaviour in private, and at the same time, she believed that his accepting responsibility would deepen when he was sentenced for the wrongful behaviour in the public forum of the court. Preferences for a process that combined private interests and public authority often came in a flow of reasoning. Olivia described achieving her goals as stepping one to the other by using the terms ‘and’, ‘also’, and ‘and then’. In response to the question, ‘What is it about these particular [resolution] processes or steps that is most attractive to you?’, she said: He’s been found guilty and then the chance to come together to talk about the impacts on me, but also to work together about how to make things different in the future. Also for me to highlight the services that could help. These could be agreed and then come back to the court. Both [of us are] able to be heard and be heard at the sentence where our ideas are taken into account at sentence. Both [of us] have a chance to influence the 20 sentence. But if you can’t, then the judge would make the final sentence. [Emphasis added] Here plainly we see the language of sequence. Not long after the actual incident and looking ahead, the women at Time 1 envisaged their multiple goals for justice beginning first with an accountability threshold and then moving through varied process steps. Time 2: After Prosecution and Court Thus far, we have presented women’s prospective thinking, that is, what they wanted from decision-makers in the future and through what decision-making pathway. What did they think at their second interview after the case had finished? On this occasion, which was between two to four weeks after the court case finished, women were asked what they had wanted from the prosecutor and from the court, and their perspective on the decisions actually made, that is, their retrospective reflections. Retrospective reflections on justice goals At Time 2, two more women indicated that they had asked for the charges to be dropped, raising the number from five to seven. The reasons the seven women gave were varied. Three had reconciled or were concerned about the possibility of a gaol sentence, and two mentioned the length of time involved in the process. A further two discussed direct pressures placed on them. Polly, for example, had her tyres slashed after the police charged her ex-partner with assaulting her. She also said, ‘I definitely didn’t want to testify. I was frightened what would happen from people he knows. I thought there’d be retaliation. I didn’t think the system would protect me’. When asked what they had ‘mainly’ wanted the prosecutor to do, 16 (76%) indicated preferences for prosecuting all or some of the charges.15 The women repeated strongly their 21 concern for accountability as a primary driver. For example, when explaining why she wanted the charges to proceed, Karla said, ‘because he did the action and if he suffered the consequences, maybe he won’t do it again. It was a serious thing he did’. The women gave similar reasons for the case proceeding as they did in their first interview: they wanted acknowledgement for themselves, some meaningful consequence for the violent person, and protection for others. Then, asked whether they remained in favour or against the court finding the violent person guilty or not guilty, 18 women (two more than at Time 1) preferred a guilty finding. For the two who changed their minds, both had wanted the relationship to continue at Time 1 and still did so at Time 2. Asked why she now preferred the guilty finding, Aimee said ‘because he was guilty. He accepts that’. Roslyn now wanted her partner ‘to be accountable for what he did because I [don’t] want to be afraid in my own home. If I’m not true to myself, if I give up on my strong sense, then that’s not good. It’s being true to my values’. These comments give a sense of the weight that the public authority of criminal justice loaned the women. At this point in the study, all but two cases had been resolved by way of a guilty plea (91%). If outcome favourability is, in part, ‘personally beneficial’, in that a personal goal(s) is achieved (Krehbiel and Cropanzano 2000: 340–341), then, given their desire for offender accountability, the women were vindicated by the offender’s guilty plea and the court’s finding. In addition, they continued to prefer treatment-oriented court outcomes from the first to the second interview. The reasons they gave were overwhelmingly offender-focused, citing the need for measures to stop the violence, to change other harmful behaviours, and for the offender to realize the wrongfulness of his conduct. The actual sentence was known at this stage, with most men sentenced to court orders or bonds ‘to be of good behaviour’ (N=13) with eight of these 22 additionally subject to probation supervision. Next in frequency was some form of custody (actual, deferred or suspended, N=5). For the remaining three, one received community service and two cases received some treatment (violence rehabilitation or drug/alcohol programs) as part of the sentence. Thus, most women received the desired guilty finding but not their preferred sentence. As an example, Teresa said at Time 1 that she preferred the court to sentence her ex- partner with a violence rehabilitation order and an order to keep away from her. However, he received a 12-month bond to be of good behaviour and no probation supervision. Reflecting on the court outcomes at her second interview, Teresa said that she ‘wasn’t sure what to expect, but I just wanted him to understand and get the message from the highest authority that what he was doing was wrong, that he had to stop’. The blend of both personal interests (that he ‘understand’) and the call to ‘the highest’ public authority is evident in her comment. Retrospective reflection on participatory opportunities At this second interview, conducted just after the court case had concluded, the women were asked if they would have liked a ‘restorative opportunity’ had it been offered. Compared to the first interview in which eight said they would have taken the opportunity, more said they would do so at Time 2 (N=13, 62%): eight said ‘definitely’ they would have, and five said ‘maybe’. Four (19%) were unsure, and four would not have done so. Of the 13 who said they would or might have taken up this opportunity, most did not want to continue the relationship with the man. Analysing the 13 women further, seven said that they would have preferred a restorative opportunity before a finding. Of this group, three had expressed a preference for diversion at the first interview. As one of these, Yvette explained that ‘it would make a better understanding for all involved and it might give another idea other than prosecuting—maybe counselling’. Six saw 23 the restorative opportunity coming after the finding, or what Miller and Iovanni (2012: 24) term a ‘postconviction dialogue’. Holly had not wanted any restorative opportunity at her first interview. She now thought she was ‘safer’ for a dialogue to be offered after the court finding, after her ex-partner’s violent behaviour was constrained and within the confines of public authority. In describing the potential of a restorative opportunity, the 13 women often spoke of their desire to convey something to the violent person. This included a discussion of the harm to them, the consequences to others, the wrongfulness of the assault, and the desire for a different person or different relationship. None mentioned an apology. Genevieve said she would ‘have liked to have gotten him to admit what he was doing was wrong or to see if he could even admit this’. Imogene thought a restorative opportunity could enable her ‘to say “ok this is what you did and these are the consequences to me and your son” and to try to get him to understand that there are consequences to others’. In general, the women with some interest in a restorative opportunity saw the potential of the meeting to contribute to the offender’s accepting responsibility for his behaviour and its consequences to him and to her as a victim. For a few women, the potential of a restorative opportunity was to get some answers. Xenia had ‘niggling questions unanswered’. Roslyn, Teresa and Polly ‘wanted to know why’. Polly said, ‘it ate away [at me]. It was really because it was just so aggressive.’ For the eight women who were unsure or not interested in a restorative opportunity, half did not want the relationship with the violent person to continue and half were unsure. These women generally wished to keep or extend the distance between themselves and the violent person. Nada said, ‘I think I needed to be as removed as possible from the situation. He was in such a bad state that anything I would have done would have inflamed [him]’. For some, concern 24 about their safety underlay their caution about a possible restorative interaction. For example, Winona said she wasn’t sure ‘because I don’t really have anything to say to him and maybe I’d be a bit scared he would lash out at me again’. Others commented that the violent person would not have been genuine in a restorative interaction or would have been manipulative, blaming or threatening. Lorraine was unsure about a restorative opportunity. Talking about her ex-partner, she said, ‘he’s very good at putting on a front, especially when it comes to guilt. He’s a very good actor’. Birgit felt ‘it wouldn’t have made any difference. We spoke on the phone, and he was blaming me for [his] being in [custody]. Even after three weeks he was blaming me. He’s just got to take responsibility’. Thus, compared to those who saw potential for a restorative opportunity with an offender, the eight who were unsure or saw no potential were sizing up concerns for their own safety and the men’s readiness to engage in the process in a constructive and respectful manner, and his readiness to accept responsibility. Time 3: Six Months after the Court Case Finished The Time 3 interviews were conducted six to eight months after the case had finished at court. Recall that compared to the 21 women interviewed twice, the 14 interviewed at Time 3 were of somewhat higher socio-economic status, more likely to have been in a shorter-term relationship with the assailant, and increasingly composed of those who had called the police themselves, but did not want the man arrested. Only two of those who had initially preferred an informal justice process remained at Time 3. Despite sample attrition, the benefits of understanding the views of those at Time 3 outweigh the drawbacks. Specifically, they provide a longer-term reflection of the women’s experiences with the criminal justice process and what, if any, subsequent violence had occurred. 25 When asked if they had felt involved enough with their case during the criminal justice process: 50% said they were, 29% said that they were not and 21% were unsure. The women were also asked about the ‘outcome decisions’ made by ‘the justice system’; that is, they were asked to give a global reflection about all the decisions not just the sentence, and about the system as a whole and not any specific part. Most (64%) agreed the decisions reached had been fair. Their answers to other items were more ambivalent. When asked if the decisions were ‘deserved’ by them as a victim, a third each said yes, no or unsure; and equal proportions agreed (43%) and disagreed (43%) that the justice system decisions were what they ‘wanted’. These are not overwhelmingly positive evaluations of criminal justice. Nonetheless, the women’s original motivation in calling for police assistance was largely achieved: 57% said there had been no further violence since the case was finalized in court. Over two thirds (79%) said they felt safe, and 64% agreed with the statement that ‘justice system intervention has had an impact in stopping the violence against me’. However, when asked if they felt that justice had been done, 57% agreed. Like their views in Time 2, their reflections on the nature of justice done tended to focus on the offender and how the justice responses did or did not facilitate accountability and change. Repeated in many women’s comments (with emphases added here) were hopes for the offender to think about what he had done and to realize a different way to be. Birgit’s ex-partner had received eight months’ gaol time although she had preferred treatment for his alcohol use. Even so, of his time in gaol, she hoped ‘he's had time to think and realize that his behaviour has to stop’. Janelle had preferred a custodial sentence for her ex-partner although this did not occur. She wanted it to have been ‘long enough for him to realize he did wrong’. She went on to say ‘when you're on a 26 good behaviour bond, you live your life normally. When you are in gaol, you have to sit and think about what you've done’. Not only did the women want the offender to think about and acknowledge the wrongfulness of the behaviour, they wanted that realization to turn outwards to others. As an example, Finoula had separated from her ex-partner, but she hoped that the conviction had ‘planted a seed in his mind not to do this to anyone else’. Holly’s ex-partner had been convicted and received a deferred sentence. She did not think that justice had been done in her case, and she referred to herself and her daughter in explaining why. She said, ‘justice would be him in a rehab and not being able to contact us’. Svetlana drew on wider community debate to say that ‘if the government is on such a stance about violence against women, [my ex] should have gotten some more. It wasn’t his first time and it [the sentence] needs to get harder as it goes along’. Others were less certain about having achieved victim-related justice goals. Half of the women disagreed with a statement that ‘my interests as a victim of violence were looked after by the justice system’. Ursula had successfully petitioned the prosecution not to proceed with the charges against her husband. Ultimately, however, she came to regret this decision and to believe that justice had not been done. While she remained married and living with him, she observed that ‘he got the outcome for him, but I haven’t. I’m no safer than I was then’. The period of time that had elapsed from the original incident and the Time 3 interview (about a year) had enabled her to speak more directly to her own interests. She said she would have liked to be able to say to her husband, if he had threatened her again, ‘don’t forget there’s an order [of the court]’. Olivia didn’t ‘feel any safer’ despite her ex-partner’s conviction. She still slept ‘with the phone and keys and with the door locked’. She had wanted ‘help’ for her ex-partner but did not feel that she ‘as an individual matter[ed]’. She went on to say that ‘victims need to know more and to know 27 why. They need better explanations … a very strong support network including information about the court system’. On the other hand, Aimee agreed that justice had been done, but at the same time noted the difficulties she faced as a victim in the process. She said her partner ‘was made to realize the seriousness of his actions’ and that the criminal justice consequences ‘all had a deep and lasting impact on him’. But, she wryly observed, ‘you’re just dragged along in all this’. These comments reveal a vulnerability felt by victims that is more diffuse than that experienced solely in relation to the offender. Ursula’s remark that she ‘needed someone just for me [in the justice process]’ recognized her aloneness and irrelevance in a system not designed with victims’ interests in mind. ‘They all listen, but you are no further ahead’, she said. Discussion Previous research suggests that between 21% to 35% of women who experience physical violence from a partner or ex-partner seek the intervention of criminal justice authorities (Cox 2016; Felson et al 2005; Johnson 2006; Walby and Allen 2004). The women in this study did so because they wanted an end to the violence, and they drew on the authority of the police and courts to help reach this goal. Most achieved this goal and felt safer. However, this was not their only objective. Their claims for justice related to their connection with the violent person and their sense of obligation to others, in addition to themselves as victims. It was for this trilogy of interests that women sought justice. In their view, justice was due to all (Swift 2014). For most women, justice entailed both procedural and substantive elements. Their reasoning for pursuing justice was instrumental (that is, to stop the violence or change the offending behaviour) and ethical (that is, to protect others or reinforce desirable community values). It interwove private and public interests. The women were nearly unanimous in naming 28 accountability of the offender (private interest) as a motivation for mobilizing the law, and that the law hold him to account (public interest).16 Not long after police attended the incident and before the case had reached court, most women further sought accountability through a guilty finding and composite sentences that addressed their different goals. While the incident had emotional impacts, only one of the 21 women mentioned ‘healing’ as an objective and none spontaneously mentioned an interest in the offender’s apologising to them. Asked prospectively before the case went to court, a high share of women said that they preferred to reach their goals in a process that relied on the court’s guilty finding and then they would consider other participatory steps such as a VIS or a restorative opportunity. It was after guilt had been established, and thus in the shadow of the court’s conviction, that more women at their second interview indicated a retrospective willingness to consider a restorative opportunity. They saw it as an occasion for the violent person to ‘realize’ what he had done, its effects and its wrongfulness. Over time, the women were consistent in seeking a conviction and consistent in other sub-goals of rehabilitation, victim protection, and drawing on the authority of the court to deter future offending. These rested on women’s view that the behaviour was wrong, that the violent person was culpable, and that the intention behind the behaviour needed to be stopped. The language women used and the reasons they gave for the justice they desired did not so much change as unfold and deepen over the course of three interviews. Making sense of justice and sequencing It is this process of unfolding and deepening that a prospective longitudinal methodology can reveal. Research on what ‘justice’ women claim after domestic violence is often divided into opposing or entirely separate options. These are then studied at a single point in time, commonly 29 retrospectively. Such approaches have obscured the fact that victims have varied preferences and concerns, described by Gromet and Darley as ‘justice goals’, towards the ‘ultimate goal of achieving justice’ (2009: 2). The authors argue that a process of ‘controlled reasoning’ can generate consideration of multiple goals and multiple targets of those goals (2009: 29). Women’s goals and targets were revealed when they were provided with more than one opportunity to speak about their case over time. They spoke expansively by depicting a conception of justice that was layered and multi-directional. What may initially seem to be contradictory or even changeable thinking is instead sequenced thinking about different targets of an overarching goal of justice, and of the interests with which they are concerned: self, offender, others. Taken together, these interests, sub-goals and reasons constitute what Sen calls ‘plural grounding’ for justice (2009: 2). Moreover, interviewing women at the different focal points of police, prosecution and court finalization showed the contingency embedded within their judgements about justice (Skitka et al. 2010). Sub-goals for justice, from the court’s guilty finding to various combinations of sentence, are articulated one after the other as a sequence, and may be reached in a sequence. Thus, for example, the court’s guilty finding was a crucial marker of accountability that was distinct from sanctions that came with sentencing. Accountability is both a threshold goal and a reference point in the justice process. Moreover, our study shows that the process creates a kind of sequenced architecture in which justice and its sub-goals may be progressively articulated by women and progressively achieved. These spaces and opportunities create the possibility for what Stubbs (2012) has called ‘a hybrid approach’ to justice for victims of domestic violence. Whereas she emphasises the ‘conditions’ needed for restorative justice to be ‘safe and effective’ for gendered violence (2012: 213), we emphasise hybridity of 30 conventional and innovative processes in which women may be involved. Contemporary criminal justice remains antithetical to this degree of victim participation and articulation. Yet women’s interest in participating in different ways and at different occasions with different intents was precisely because a publicly sanctioned criminal justice system had the authority and means to facilitate and deliver (if only incompletely) their multiple goals. If we use the idea of ‘the sequencing of justice goals’, we are able to see that one set of justice principles or terms need not be privileged over another, nor that one must happen before the other. Elsewhere, one of us has observed that the youth justice conferencing process can permit time for participants to express multiple justice principles, not just one. As a consequence, ‘retributive, restorative, and rehabilitative principles and terms are intermingled, or they may shift in emphasis, depending on the conference phase’ (Daly 2000). Our study shows the same for victims of domestic violence in a conventional criminal justice process. Here, however, the time frame is not a 60-minute conference, but a substantially longer time and multiple occasions as a case moves through a criminal process and six to eight months after it concludes. By taking this longer view, we are able to see the idea of justice from a victim’s perspective as a sequenced activity comprising distinct layers, not as it is often portrayed, as a oppositional dichotomy. ‘Repair or revenge’ (Strang 2002), ‘restorative or retributive’ (Zehr 1990), rehabilitation or punishment, among other examples, have promulgated a misleading and distorted understanding of the justice many victims, including those affected by domestic violence, seek in the aftermath of crime. 31 References BARATA, P. (2007), ‘Abused Women’s Perspectives on the Criminal Justice System’s Response to Domestic Violence’, Psychology of Women Quarterly, 31/2: 202-215. BELL, N., PEREZ, S., GOODMAN, L. and DUTTON, M. (2011), ‘Battered Women’s Perceptions of Civil and Criminal Court Helpfulness: The Role of Court Outcome and Process’, Violence Against Women, 17/1: 71-88. BOYKIN, D., LONDON, M. and ORCUTT, H. (2016), ‘Examining Minority Attrition Among Women in Longitudinal Trauma Research’, Journal of Traumatic Stress, 29: 26-32. CHRISTIE, N. (1977), ‘Conflicts as Property’, The British Journal of Criminology, 17/1: 1-15. COX, P. (2016), Violence Against Women: Additional Analysis of the Australian Bureau of Statistics' Personal Safety Survey, 2012, ANROWS Horizons: 01.01/2016 Rev. ed. Sydney: ANROWS. DALY, K. (2000), ‘Revisiting the Relationship between Retributive and Restorative Justice’. In H. Strang and J. Braithwaite eds, Restorative Justice: From Philosophy to Practice, 33-54. Ashgate. DALY, K. and STUBBS, J. (2006), ‘Feminist Engagement with Restorative Justice’, Theoretical Criminology, Special Issue on Gender, Race, and Restorative Justice, 10/1: 9-28. DOBASH, R. E. and DOBASH, R.P. (1992), Women, Violence and Social Change. Routledge. EREZ, E. and BELKNAP, J. (1998), ‘In Their Own Words: Battered Women's Assessment of the Criminal Processing System's Responses’, Violence and Victims, 13/3: 251-268. FELSON, R., ACKERMAN, J. and GALLAGHER, C. (2005), ‘Police Intervention and the Repeat of Domestic Assault’, Criminology, 43/3: 563-588. 32 FLEURY, R. (2002), ‘Missing Voices: Patterns of Battered Women’s Satisfaction with the Criminal Justice System’, Violence Against Women, 8/2: 181-205. FLEURY-STEINER, R., BYBEE, D., SULLIVAN, C., BELKNAP, J. and MELTON, H. (2006), ‘Contextual Factors Impacting Battered Women’s Intentions to Reuse the Criminal Legal System’, Journal of Community Psychology, 34/3: 327-342. FORD, D. (1991). ‘Prosecution as a Victim Power Resource: A Note on Empowering Women in Violent Conjugal Relationships’, Law and Society Review, 25/2: 313-334. GROMET, D. and DARLEY, J. (2009), ‘Punishment and Beyond: Achieving Justice Through the Satisfaction of Multiple Goals’, Law and Society Review, 43/1: 1-38. HARE, S. (2006), ‘What do Battered Women Want? Victims’ Opinions on Prosecution’, Violence and Victims, 21/5: 611-628. HERMAN, J. (2005), ‘Justice from The Victim’s Perspective’, Violence Against Women, 11/5: 571-602. HIRSCHEL, D. and HUTCHISON, I. (2003), ‘The Voices of Domestic Violence Victims: Predictors of Victim Preference for Arrest and the Relationship Between Preference for Arrest and Re-Victimization’, Crime & Delinquency, 49/2: 313-336. HOLDER, R. (2007), ‘Police and Domestic Violence: An Analysis of Domestic Violence Incidents Attended By Police in the ACT and Subsequent Actions’, Research Paper 4, August. Sydney: Australian Domestic and Family Violence Clearinghouse. HOLDER, R. (2013/2018), Just Interests: Victims, Citizens and the Potential for Justice. PhD thesis. Canberra: The Australian National University. Revised for 2018 publication by Edward Elgar. 33 HOLDER, R. (2015), ‘Satisfied? Exploring Victims’ Justice Judgements’. In D. Wilson and S. Ross eds, Crime, Victims and Policy: International Contexts, Local Experiences, 184-213. Palgrave. HOLDER, R. (2016), ‘Untangling the Meanings of Justice: A Longitudinal Mixed Methods Study’, Journal of Mixed Methods Research, Online version, 1-17, DOI: 10.1177/1558689816653308 HOLDER, R. and CARUANA, J. (2006), Criminal Justice Intervention in Family Violence in the ACT, November. Canberra: Victims of Crime Coordinator. HOYLE, C. and SANDERS, A. (2000), ‘Police Response to Domestic Violence: From Victim Choice to Victim Empowerment’, British Journal of Criminology, 40: 14-36. JOHNSON, H. (2006). Measuring Violence Against Women: Statistical Trends 2006. Ottawa: Minister of Industry. KREHBIEL, P. and CROPANZANO, R. (2000), ‘Procedural Justice, Outcome Favourability and Emotion’, Social Justice Research, 13/4: 339-360. LEWIS, R., DOBASH, R. P., DOBASH, R. E., and CAVANAGH, K. (2000), ‘Protection, Prevention, Rehabilitation or Justice? Women's Use of the Law to Challenge Domestic Violence’, International Review of Victimology, 7/1-3: 179-205. MCFARLANE, J., WILLSON, P., LEMMEY, D. & MALECHA, A. (2000), ‘Women Filing Assault Charges on an Intimate Partner’, Violence Against Women, 6/4: 396-408. McGILLIVRAY, A. and COMASKEY, B. (1999), Black Eyes All of the Time: Intimate Violence, Aboriginal Women, And the Justice System. University of Toronto Press. 34 MILLER, S. and IOVANNI, L. (2013), ‘Using Restorative Justice for Gendered Violence: Success with a Postconviction Model’, Feminist Criminology, 20/10: 1-22. MILLS, L. (1999), ‘Killing Her Softly: Intimate Abuse and the Violence of State Intervention’, Harvard Law Review, 113/2: 550-613. MINAKER, J. (2001), ‘Evaluating Criminal Justice Responses to Intimate Abuse Through the Lens of Women’s Needs’, Canadian Journal of Women and the Law, 13: 74-106. NANCARROW, H. (2006), ‘In Search Of Justice for Domestic and Family Violence: Indigenous and Non-Indigenous Australian Women’s Perspectives’, Theoretical Criminology, 10/1: 87- 106. NOVISKY, M. and PERALTA, R. (2015), ‘When Women Tell: Intimate Partner Violence and the Factors Related to Police Notification’, Violence Against Women, 21/1: 65-86. PLANO CLARK, V., ANDERSON, N., WERTZ, J., ZHOU, Y., SCHUMACHER, K. and MIASKOWSKI, C. (2014), ‘Conceptualizing Longitudinal Mixed Methods Designs: a Methodological Review of Health Sciences Research’, Journal of Mixed Methods Research, Online version, 1-23, DOI: 10.1177/1558689814543563 RUBIN, P. (2010), ‘A Community of One’s Own? When Women Speak to Power About Restorative Justice’. In J. Ptacek, ed, Restorative Justice and Violence Against Women, 79- 104. Oxford University Press. SEN, A. (2009), The Idea of Justice, The Belknap Press of Harvard University Press. SKITKA, L., ARAMOVICH, N., LYTLE, B. and SARGIS, E. (2010), ‘Knitting Together an Elephant: An Integrative Approach to Understanding the Psychology of Justice Reasoning’. 35 In R. Bobocel, A. Kay, M. Zanna, and J. Olson, eds, The Psychology of Justice and Legitimacy: The Ontario Symposium (Volume 11), 1-26. Psychology Press. SMITH, A. (2001), ‘Domestic Violence Laws: The Voices of Battered Women’, Violence and Victims, 16/1: 91-111. SNIDER, L. (1998), ‘Towards Safer Societies: Punishment, Masculinities and Violence Against Women’, British Journal of Criminology, 38/1: 1-39. STRANG, H. (2002), Repair or Revenge: Victims and Restorative Justice. Clarendon Press. STUBBS, J. (2012), ‘Justice for Gendered Violence: What does Restorative Justice Offer?' In J. Bolitho, J. Bruce and G. Mason, eds, Restorative Justice: Adults and Emerging Practice, 194-213. Sydney Institute of Criminology. SWIFT, A. (2014), Political Philosophy: A Beginners’ Guide for Students and Politicians, 2nd edition, Polity Press. VAN CAMP, T. and WEMMERS, J. (2013), ‘Victim Satisfaction with Restorative Justice More than Simply Procedural Justice’, International Review of Victimology, 19/2: 117-143. VISHER, C., HARRELL, A., NEWMARK, L. and YAHNER, J. (2008), ‘Reducing Intimate Partner Violence: An Evaluation of a Comprehensive Justice System-Community Collaboration’, Criminology and Public Policy, 7/4: 495-523. WALBY, S. and ALLEN, J. (2004), Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey, Home Office Research Study 276, Home Office. WEMMERS, J. (2008), ‘Victim Participation and Therapeutic Jurisprudence’, Victims and Offenders, 3/2-3: 165-191. 36 WESTMARLAND, N., JOHNSON, K. and McGLYNN, C. (2017), ‘Under the Radar: The Widespread Use of “Out Of Court Resolutions” in Policing Domestic Violence and Abuse in the United Kingdom’, British Journal of Criminology, 1-16, doi:10.1093/bjc/azx004 YOUNG, A., POWERS, J. and BELL, S. (2006), ‘Attrition in Longitudinal Studies: Who Do You Lose?’, Australian and New Zealand Journal of Public Health, 30/4: 353-361. ZEHR, H. (1990), Changing Lenses: A New Focus for Criminal Justice. Herald Press. 37 1 In this study, domestic violence is defined as intimate partner violence, in which a woman was victimised by a male partner or ex-partner. 2 McFarlane et al. (2000) interviewed women at Time 1 when they intended to file assault charges. The article discusses retrospective findings at Time 2. 3 Ford (1991) used a limited prospective design in a study of 25 women who initially sought prosecution; he subsequently interviewed 13 to determine why they had ‘dropped charges’ before the case went to court. 4 The average time for each interview at all three interview points was 65 minutes. 5 From 1994 to 2011, the first author worked as a statutory victim advocate in the study jurisdiction and led a coordinated community and criminal justice response to domestic violence (Holder and Caruana 2006). 6 With small sample sizes and non-independent samples, we did not carry out tests of statistical significance, but instead identified when differences were 10 percentage points or greater on the variables. 7 They were also more likely to speak another language at home in addition to English, a measure often associated with increased attrition of ‘minorities’ (Boykin et al. 2016). For this sample, however, bilingualism was associated with having a tertiary education. 8 One woman earned between $100,000 and $250,000. The 2011 average gross individual income of a full-time employee in Australia was $53,000 (approximately GBP 34,000 or USD 54,000, using the 2011 average exchange rate). 9 In these two cases the prosecution had offered no evidence and the charges were dismissed in court. For both, the women made strong representations to prosecution to drop the charges: one 38 because she believed her husband was mentally unwell and the other because of particular circumstances that led to the violence. 10 Sixteen (76%) of those interviewed twice said that they had initiated the call to police themselves. Of the five who did not, two said that they supported the report being made, two were unsure and one did not want the report made. 11 All names used are pseudonyms. 12 Although 14 of the 21 women had children living with them at the time of the incident, just four of the 14 (29%) mentioned children in their reasons for calling the police. 13 Gromet and Darley call these three ‘justice targets’ (2006: 2). 14 In the study jurisdiction, there were a number of legislated paths for the resolution of a criminal offence. At the time of the study, one of these was a restorative conference for youth matters (if the alleged offender made an admission or was convicted) but not for adults and not for domestic violence. Despite this, pre-admission or conviction options for a restorative encounter were put to the study participants. They were advised that these options were not actually available to them and that they were being asked in order to gain some idea of the degree of interest. 15 There is a surface inconsistency between seven women saying they had asked for charges to be dropped and 16 saying they wanted all or some of the charges prosecuted. However, the first is a response to an open question about an action undertaken ‘at any time’ during the prosecution process. The second derives from closed response options that focused narrowly on ‘when the prosecution was dealing with your case’. 16 Public interest is defined as that which is of common concern to the general populace. It is often separated from a private interest. Women’s comments showed private and public interest as 39 interweaving and mutually defining. The example of offender accountability shows private interest for it and public interest that it is secured as being two sides of the same coin. Likewise, for individuals to live free of violence is an objective that is a private and a public interest. SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS SEQUENCING JUSTICE: A LONGITUDINAL STUDY OF JUSTICE GOALS OF DOMESTIC VIOLENCE VICTIMS Women, violence and justice A longitudinal prospective study Time 1: Police Intervention Prospective process preferences Time 2: After Prosecution and Court Time 3: Six Months after the Court Case Finished Discussion Making sense of justice and sequencing References 
work_7t5kp5jyybaqvkadiouxxmoxsa	----	Virtual Mentor Virtual Mentor American Medical Association Journal of Ethics July 2011, Volume 13, Number 7: 448-453. CONLEY ESSAY CONTEST 2010 Winning Essay Social (Networking) Justice Russell J. Coletti Emily, a medical school candidate, had high grades and MCAT scores and extensive volunteer experience. The committee members who interviewed her reported that Emily had spoken movingly about her desire to become a primary care physician in a rural setting. The committee’s student member, Jason, looked up Emily on Facebook to see whether they had any friends in common. There he found a link to a blog post that attributed rising rates of contagious disease and unemployment to illegal immigrants. Emily had added: “I couldn’t agree more. People whose mothers just happened to sneak over the border at the right time are called ‘citizens’ when they’re just driving down wages, straining our infrastructure, and taking jobs that rightly belong to honest, hardworking taxpayers. Why should we take care of them?” Emily’s Facebook post revealed a side of her that Jason knew the admissions committee hadn’t seen, and he wondered what he should do with this information. Response Just when access to information at a moment’s notice seems like old news, a growing trend in the virtual world is the ability to share personal experiences and ideas with one’s friends and family anywhere. Social networking sites like Facebook and Twitter have allowed insight into an individual’s life like never before, but in what situations is such insight appropriate? In the case of medical school hopeful Emily, online social networking activities should not be considered during the selection process for her admittance. In order to narrow the applicant pool, medical schools have adopted a three-stage process: screening, interviewing, and selection [1]. Because there are a limited number of positions in the entering class, it can be said that admission represents a limited good to be disbursed at the admission committee’s will. Given this arrangement, one can see that justice becomes an important part of the selection process. In his book Beginning Bioethics, Aaron Ridley defines justice as “giving people what is fair, due, or owed to them” [2], in other words giving people what they deserve. Applying this idea to the admissions process, if the committee determines that an applicant deserves admission, then the committee ought to grant it. The information the committee uses to determine whether the applicant’s academic achievements and character are deserving of admission is that which the Virtual Mentor, July 2011—Vol 13 www.virtualmentor.org 448 applicant submits in the first two stages of the process: screening and interviewing. The end of the interview stage marks the point in the process after which the applicant cannot defend, expand upon, or put into context any information that the committee considers. Equally important is the fact that the applicant has only knowingly submitted information up to that point and has thus been in control of its content. This is not unlike a trial proceeding, in which a jury (analogous to the admission committee) decides on a defendant’s deservingness of acquittal (or conviction) based upon information presented during the case. In this arena where, ideally, justice is preserved, the jury is only to consider the information presented formally in court, where the defendant has the opportunity to counter or defend the information presented. Indeed there have been cases in which jurors have used social networking sites, among other Internet resources, to convey or discover information not deemed admissible by the judge, which resulted in mistrials. For instance, in a Florida case where the defendant was accused of selling prescription drugs illegally over the Internet, 8 weeks of proceedings unraveled into a mistrial when several of the jurors conducted online research about the case [3]. Clearly, consulting resources beyond the confines of the proper pathways has been deemed unfair in the legal system, as the information no longer can be properly scrutinized, particularly by the party to whom the information pertains. Proper, fair pathways also exist in the selection process for medical school. According to the Liaison Committee on Medical Education, which sets accreditation standards for all U.S. medical schools, an institution “must develop criteria, policies, and procedures for selection…that are readily available to…applicants” [4]. Furthermore, the Association of American Medical Colleges dictates that an institution develop “clear, consistent criteria and processes” [1] for selection. Thus, a just process guarantees the applicants both transparency and consistency in the admission guidelines. Indeed there are now actually two criteria for justice within the selection process: (i) that those to whom admission is due ultimately receive it, and (ii) that all applicants receive what they are owed from the onset (transparency and consistency). Since it appears that Jason took it upon himself to consult Facebook for his own reasons (common friends, likes, and dislikes), and he is left “wondering what to do with the information,” it is unlikely that this is an official committee procedure, so Jason’s activities would not have been disclosed to the applicants. He thus violates the transparency requirement of the process. Furthermore it appears that Jason was able to glean the extra (not gathered from the first two stages) information only about applicants who used Facebook and had an open account. Jason’s method is therefore inconsistent, unlike the screening and interviewing stages, which all applicants undergo. Thus, if the committee were to consider Emily’s social networking activities, then the selection process would be neither transparent nor consistent, making it unjust because all applicants would not be receiving what they are owed from the onset. Were the committee to use this type of inconsistent information, www.virtualmentor.org Virtual Mentor, July 2011—Vol 13 449 which may be out of context (remember that at this point applicants cannot defend or explain this information), then it could be argued that determining which applicants actually deserve admission becomes obscured, potentially preventing deserving applicants from being admitted while undeserving applicants receive admission. In this way the process would meet neither justice criterion. Those who support use of social networking media in the selection process may say that the process is already unjust, as it is nearly impossible to know absolutely who does and does not deserve admission. Furthermore, if committees officially made social networking investigation part of their process, it would allow them access to more material with which to make a more informed decision. It can also be argued that, given the limited spots, not every applicant who deserves admission receives it, so the selection process is also unjust in this way. In response, I assert that, while there are inherent limitations on how much information the committee can gather in the first two stages due to finite interview time and class sizes, those limitations are consistent and institutionally enforced. For instance, all applicants are limited to the same number of characters in writing their personal statements, and all interviews last generally the same amount of time. Conversely, social networking sites are virtually limitless, and the amount and content of information is determined only by the user. If the committee were to disclose its utilization of Facebook, which it would be required to do if it made such sites an official part of the selection process, then an applicant would be free to alter and add information as he or she saw fit, in effect undermining the candid quality of Facebook that would have been attractive to the committee in the first place. In addition, some candidates may not have social networking accounts, making the process inconsistent, unless the committee required such accounts at the onset. Certain information fields would then need to be specified as mandatory, and the social networking account would become just another element in the formal application to be submitted during the screening stage. Although it is unfortunate that not all deserving applicants gain admission, I argue that it is not the committee’s job to grant admission to every deserving applicant; rather, they must ensure to the best of their ability that available space is filled only with deserving applicants—that it is as just a selection process as possible. A more pressing argument may be that future patients’ care is at stake if Emily harbors biases that may influence her ability to fulfill a physician’s responsibility to all patients. As a result, this argument goes, Jason has an obligation to inform the committee, even at the risk of making the selection process unjust. Here it is important to look more closely at Emily’s comments, which, when the “tone of disgust” is removed, essentially state her opinion against noncitizens who have illegally immigrated and are placing an apparent economic strain on American society. She is not necessarily morally opposed to immigrants or immigration in general. While immigrants (documented and undocumented) do not cost a disproportionate amount of money to treat, their treatment is more likely to be classified as uncompensated care [5], which, one could argue, can cause an economic Virtual Mentor, July 2011—Vol 13 www.virtualmentor.org 450 strain. It’s possible that Emily may decide in the future not to provide uncompensated care, meaning that patients who do not have health insurance will not receive her care. This may even include American citizens without insurance, since many fit this profile, although the percentage of uninsured is lower among citizens than non-citizens. In reality this is not unlike what is currently happening in health care; some physicians have decided not to provide services to the uninsured or even to patients who do have a particular level of insurance [6]. Another illustration of the fact that physicians can deny care is the legal protection they have in refusing to participate in abortions if they are religiously or morally opposed to doing so [7]. In fact no physician, simply because he or she is a physician, is required by any oath or law to treat all persons; physicians are traditionally held to the principle of nonmaleficence, but not necessarily that of beneficence. After all, Hippocratic writings say “help or at least do no harm” [8], indicating that above all physicians should not harm patients. Whether physicians are morally obligated to help all others is still debated among philosophers and ethicists. Any policies requiring physicians to treat all patients would most likely be contractually enforced by the individual practice or institution by which the physician is employed, and such requirements are not universal. While arguments can be made that patients should receive care regardless of their circumstances, whether or not such universal mandates should be placed upon physicians as a result is beyond the scope of this discussion. So although the physicians whose ranks Emily desires to join do treat a significant number of documented and undocumented immigrants, they are not universally required to do so. Therefore to deny Emily admission based upon her apparent bias is to impose upon her a requirement as a potential future physician that physicians are not currently subject to. Such imposition would be unfair unless all physicians had the same requirement, and, because it is not the admission committee’s place to impose requirements on current doctors, it should not consider her comments as detracting from her future ability to be a physician. Because the potential outcome of Emily’s bias would not prevent her from fulfilling the responsibilities of a current physician, Jason has no obligation to inform the committee, especially when doing so would cause the process to become unjust. Nevertheless, Emily’s comments do sound rather crass, most likely because she expressed her opinions in an unprofessional way. Indeed, unprofessional content posted on social networking sites is not uncommon, with 60 percent of medical schools reporting similar activities among their students [9]. However, professionalism has been identified, together with ethics and communication skills, as a competency that graduates of medical education must meet and that academic medical institutions must incorporate into their teaching [4]. While Emily did display unprofessional behavior in her comments, denying her admission would be undermining the recognized ability of medical students and graduates to grow into professional, respectful physicians as well as the medical institution’s ability to help its students become sensitive to and aware of cultural differences. Moreover, through www.virtualmentor.org Virtual Mentor, July 2011—Vol 13 451 lessons and personal experiences throughout medical training, it is perfectly reasonable to believe that Emily can learn to conduct herself appropriately in the future and even overturn her present bias. Emily’s responsibility is merely to be cautious of what she posts online; her medical training should subsequently prepare her to meet the professionalism standards of a physician. In summary, it would be unjust for the admission committee to consider social networking activities during the selection process because such practices would violate the principles of transparency (the application process does not state that networking activities are considered by the committee) and consistency (not all applicants post on social networks), while potentially denying deserving applicants due admission. Furthermore, use of such information may lead committees to impose upon applicants standards that are not imposed upon practicing physicians or professional values that the medical curriculum has a responsibility to cultivate in future physicians. References 1. Association of American Medical Colleges. Roadmap to Diversity: Integrating Holistic Review Practices into Medical School Admission Processes. Washington, DC: Association of American Medical Colleges; 2010. 2. Ridley A. Allocation and health care policy. In: Beginning Bioethics. New York: Bedford/St. Martin’s; 1997: 244-245. 3. Schwartz J. As jurors turn to Web, mistrials are popping up. New York Times. March 17, 2009. http://www.nytimes.com/2009/03/18/us/18juries.html?pagewanted=1&_r=1. Accessed July 28, 2010. 4. Liaison Committee on Medical Education (LCM). Functions and structure of a medical school: standards for accreditation of medical education programs leading to the MD degree. http://www.lcme.org/functions2010jun.pdf. Accessed July 28, 2010. 5. Stimpson JP, Wilson FA, Eschbach K. Trends in health care spending for immigrants in the United States. Health Aff (Millwood). 2010;29(3):544-550. 6. Sack K. As Medicaid payments shrink, patients are abandoned. New York Times. March 15, 2010. http://www.nytimes.com/2010/03/16/health/policy/16medicaid.html. Accessed July 29, 2010. 7. Sterilization or abortion. 42 USC sec 300a—7. http://www.law.cornell.edu/uscode/42/usc_sec_42_00000300---a007-.html. Accessed July 25, 2010. 8. Munson R. Major moral principles. In: Intervention and Reflection: Basic Issues in Medical Ethics. 7th ed. Belmont, MA: Thomson-Wadsworth; 2003. 9. Dolan PL. Social media behavior could threaten your reputation. American medical Association. http://www.ama- assn.org/amednews/2009/10/12/bil21012.htm. Accessed July 29, 2010. Virtual Mentor, July 2011—Vol 13 www.virtualmentor.org 452 Russell J. Coletti is a third-year student at the University of North Carolina School of Medicine in Chapel Hill. Related in VM Social Roles and Semi-Public Spaces on the Internet—The Case of Jason and Emily, July 2011 Jason’s Journal—Thoughts of an Ethically Conflicted Medical Student, July 2011 AMA Code of Medical Ethics’ Opinions on Confidentiality of Patient Information, July 2011 Anonymous Physician Blogging, July 2011 The viewpoints expressed on this site are those of the authors and do not necessarily reflect the views and policies of the AMA. Copyright 2011 American Medical Association. All rights reserved. www.virtualmentor.org Virtual Mentor, July 2011—Vol 13 453 http://virtualmentor.ama-assn.org/2011/07/conl2-1107.html http://virtualmentor.ama-assn.org/2011/07/conl3-1107.html http://virtualmentor.ama-assn.org/2011/07/coet1-1107.html http://virtualmentor.ama-assn.org/2011/07/ccas3-1107.html 
work_7ttu7inglzcpbb3cg5pogteide	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221728940 Params is empty 221728940 exception Params is empty 2021/04/06-03:20:25 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221728940 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:25 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_7tukn3e4dvasllrx72go7jfuka	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221744513 Params is empty 221744513 exception Params is empty 2021/04/06-03:20:44 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221744513 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:44 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_7wqsnggpgbb4fgd256t2zzumiy	----	3_2001-UHE_UAB-16-05-2001.PDF 3/2001-UHE/UAB-16/05/2001 1 Chapter of the book: Ageyman, J. et al., Just Sustainabilities: Development in an Unequal World, Earthscan (forthcoming) Environmental Conflicts, Environmental Justice, and Valuation J. Martinez-Alier Universitat Autonoma de Barcelona [A]ABSTRACT In this article some historical and contemporary environmental conflicts are described. The international environmental liability of mining corporations is discussed. Comparisons are made with conflicts in the United States and in South Africa which fall under the rubric of the Environmental Justice movement. Such conflicts are fought out in many languages, and the economic valuation of damages is only one of such languages. Who has the power to impose particular languages of valuation? Who rules over the ways and means of simplifying complexity, deciding that some points of view are out of order? Who has power to determine which is the bottom-line in an environmental discussion? Key words: Ecological Distribution Conflicts/ Environmentalism of the Poor/ Environmental Justice/ Environmental Liability/ Copper mining/ Gold mining/ Ecological economics/ Valuation [A]INTRODUCTION There is a new tide in global environmentalism that arises from social conflicts on environmental entitlements, on the burdens of pollution, on the sharing of uncertain environmental risks, on the loss of access to natural resources and environmental services. Many such ecological distribution conflicts, whether they take place inside or outside markets, whether they are local or global, come about because economic growth means an increased use of the environment. In such ecological distribution conflicts, the poor are often at the side of resource conservation and a clean environment even when they themselves do not claim to be environmentalists. The claims to environmental resources and services of others who are differentially empowered and endowed, can be contested by arguing inside a single standard of value or across plural values. In this article, valuation of damages is discussed and also international environmental liability. The relations between ecological distribution conflicts and economic valuation are as follows. First, the pattern of 3/2001-UHE/UAB-16/05/2001 2 prices in the economy will depend on the concrete outcomes to ecological distribution conflicts. Second, ecological distribution conflicts (which often arise outside the market) are not fought only through demands for monetary compensation established in actual or fictitious market places. They may be fought out in other arenas. When the study of an ecological distribution conflict reveals a clash of incommensurable values, then this helps to develop an Ecological Economics which moves beyond the obsession of “taking nature into account” in money terms, and which is able therefore to cope with value pluralism. [A]ENVIRONMENTALISM AVANT-LA-LETTRE: COPPER MINING IN JAPAN I have chosen copper mining as a starting point, for two reasons. First, it provides historical examples. By looking at historical cases of environmental conflict which were not yet represented in the language of environmentalism, we can then interpret as environmental conflicts, instances of social conflict today where the actors are still reluctant to call themselves environmentalists (Guha, 1989). Second, by comparing historical with contemporary conflicts on copper mining, I make the point that copper has not become obsolete (despite aluminum and optic fiber). On the contrary, the frontier for the extraction of copper reaches new territories, and this is a good point to make against the believers in the “dematerialization” of the New Economy. Environmentalists in Japan remember Ashio as the site of Japan’s first major industrial pollution disaster. This was a large copper mine not far from Tokyo owned by the Fukurawa corporation, which witnessed a major workers’ riot against working conditions in 1907. Japanese social historians have debated whether the riot was “spontaneous” or organized by ancient brotherhoods. There were also already some “direct action” socialists in Japan at the time. While, as we shall see, in Rio Tinto in Andalusia in 1888 there was a common front between miners and peasants against pollution, this does not seem to have been so at Ashio, where tens of thousands of peasants along the Watarase river fought during decades against pollution from heavy metals which damaged not only crops but also human health. They also fought against the building of a large sediment basin to store the polluted waters, which implied the destruction of the village of Yanaka in 1907 including its cemetery and sacred shrines. “The mine’s refinery belched clouds containing sulfuric acid that withered the surrounding forests, and the waste water ... ran off into the Watarase River, reducing rice yields of the farmers who irrigated fields with this water... Thousands of farming families... protested many times. They petitioned the national authorities and clashed with the police. Eventually their leader, Tanaka Shozo, created a great stir by directly petitioning the emperor for relief...As environmental destruction reemerged in the 1960s as a major social issue, and popular concern with the impact of pollution intensified, so Ashio’s legacy as “the birthplace of pollution in Japan” has endured... At that time copper played a major role in the Japanese economy, ranking second to silk among Japan’s exports” (Nimura, 1997: 20-21, also Strong, 1977). Ashio was not 3/2001-UHE/UAB-16/05/2001 3 unique in the world, and Fukurawa’s own publicity remarked that Butte in Montana was a fearful place to live: “The smelting process has utterly destroyed the beauty of the landscape, evil gaseous smoke has killed all plant-life for miles round about; the streams are putrid with effluent, and the town itself seems buried under monstrous heaps of slag” (Strong, 1977: 67). Such were then the realities of copper mining in America. Ashio in comparison was not so bad except that, unlike Montana, there were thousands of unhappy peasants downstream.1 Fukurawa had bought the Ashio mines in 1877. In 1888 he made a deal for the supply to a French syndicate of 19,000 tons of copper over two and a half years, the target was met in full, three thousand miners were working then at Ashio, their number was to increase later to fifteen thousand. The contract with Fukurawa was signed on behalf of the French syndicate by the manager of Jardine Matheson, a firm founded by Sir James Matheson of the Lews, who was an uncle of Hugh Matheson, the founder of the Rio Tinto company (Strong, 1977: 67). Fukurawa procastinated for decades on anti- pollution measures, profiting from the novelty and uncertainty of the chemical pollution in question, and from the closeness between government and business in Japan. In cost-benefit language, it was argued: “Suppose for the sake of the argument that copper effluent were responsible for the damage to farmlands on either side of the Watarase - the public benefits that accrue to the country from the Ashio mine far outweigh any losses suffered in the affected areas. The damage can in any case be adequately taken care of by compensation” (article in the Tokio Nichi Nichi Shinbun of 10 Febr. 1892, in Strong, 1977: 74). In today’s parlance, a Pareto improvement means, in the strict sense, that a change such as a new mining project improves somebody’s situation, and does not worsen anybody’s situation. In this sense, Ashio did not fulfil the criterion. However, a Pareto improvement in a wider sense allows for compensation under the so-called Kaldor-Hicks rule, so that those better off can (potentially) compensate those worse off, and still a net gain be achieved. This was Fukurawa’s claim. Tanaka Shozo (1841-1913), the son of a peasant headman of a village in the polluted area, the leader of the anti-pollution struggles, could not yet have known about cost-benefit analysis and welfare economics. He became in the 1890s a member of the Diet in Tokyo famous for this fervent speeches, he was a man with deep religious feelings, the retrospective father figure of Japanese environmentalism - born therefore more in a tradition of pro-peasant environmental justice (and also of care for the urban ecology and concern for forest protection and the water cycle, Tamanoi et al. 1994) than wilderness preservation, although within a national context of industrialism and militarism which put environmentalism on the defensive. Today Japan is of course a big importer of copper through active transnational companies like Mitsubishi. Pollution from copper mining and smelting play still a big role in the ecological economies of some exporting countries. If world copper extraction was in 1900 of the order of 400,000 tons per year, one hundred years later it is of the order of 10 million tons, an increase by a factor of 25 (compared 3/2001-UHE/UAB-16/05/2001 4 to a fourfold increase in the human population, from 1.5 to 6 billion people between 1900 and 2000). Over 60 percent of copper production comes from such new mined ores, the rest from recycling, hence the relentless expansion of the copper frontier. The cheaper the cost of fresh extraction, the less recycling there is. Ashio was certainly not the only case of Japanese early popular environmentalism. Thus, when “the Nikko company built its copper refinery on the tip of the Saganoseki peninsula (in Oita Prefecture) in 1917, local farmers objected strenuosly. They feared that the acrid smoke from the refinery would blight the mountains and ruin the mulberry trees, on which their silk industry depended. Ignoring them the town officials agreed to the refinery. The farmers felt betrayed. The angry farmers swarmed into town and cut through the village leader’s house pillars, a tactic (uchikowashi) drawn straight from the Tokugawa period... The police brutally suppressed this protest, beating and arresting 100 participants. Nikko built the mill, and it operates to this day” (Broadbent, 1998: 138). [A]ONE HUNDRED YEARS OF POLLUTION IN PERU The Environmentalism of the Poor, and the Environmental Justice movement, are global cross-cultural movements, in all countries including the United States. (Guha, 2000). Work by several authors in the Central Sierra of Peru 25 years ago explained the successful defense of the communities both against expanding haciendas (Mallon, 1983). Indian shepherds’ and peasants’ resisted the “modernization” of the haciendas. Modern hacienda owners wanted to throw them out, and also their non-pedigreed sheep. The communities also had to struggle on another related front, against mining companies, and they still do. The Cerro de Pasco Copper Corporation polluted pasture lands in the 1920s and 1930s. Mines were not new to the Peruvian highlands. Huancavelica had supplied mercury to Potosi already in the 16th century. Silver had been mined in colonial and postcolonial times. Towards 1900, there was a world boom in copper, lead and zinc mining because of the proliferation of electrical instruments, tools, machines, armaments, railroads. Domestic capitalist miners were making small fortunes. In 1901 the Peruvian government changed the mining code, allowing private property of mining deposits (instead of state property and a regime of administrative concessions) (Dore, 2000:13-15). The Cerro de Pasco Corporation, from New York, bought many of the deposits, and started a large scale underground mining operation. The Cerro de Pasco company built roads, railroads, dams, hydroelectric plants, mining camps, at 4000 m. above sea level. It first built several small smelters, and then in 1922 a big smelter and refinery at La Oroya, the effects of which became a cause celebre. “The new smelter polluted the region’s air, soil and rivers with arsenic, sulphuric acid and iron-zinc residues” (Dore, 2000:14). The pastures withered, people became ill. There was a legal case brought against the company by peasant communities, and by old and new hacienda owners (some of whom were already at the time trying to modernize sheep raising), up to 120 km away. The mining company was forced by the court to buy the lands it had polluted, 3/2001-UHE/UAB-16/05/2001 5 as a form of indemnity. When in later years the mining operations and La Oroya smelter became less pollutant (at least with respect to the air, because of the scrubbers, if not with respect to the rivers), the property of all this land became a valuable asset for the company, which then started a large sheep ranching business, getting into border conflicts with surrounding communities. The enormous ranch (of about 300,000 ha) was expropriated in 1970 by the Land Reform, but still exists as the SAIS Tupac Amaru, owned by surrounding communities, one of the few large-scale sheep ranches in Peru which has not been taken over and split up into individual peasant communities. In the early 1900s, the Cerro de Pasco Corporation initially had difficulties in recruiting skilled labor. It resorted the enganche, a form of debt peonage. As Elizabeth Dore points out (Dore, 2000: 15), the large scale pollution caused by La Oroya smelter contributed to solving the labor shortage, because agricultural yields decreased in the small plots where agriculture is practiced at such altitude, and animals died. Peasant labor became available. This was another blessing in disguise. Mining in Peru was long dominated by the Cerro de Pasco Copper Corporation, but in the 1950s and 1960s, and increasingly until today, the main extraction of copper moved southward, towards Cuajone and Toquepala. These are large open-pit mines near Ilo, an extension of the rich deposits of Chuquicamata and other mines in northern Chile. The Southern Peru Copper Corporation owned by Asarco and Newmont Gold has subjected the city of Ilo, in southern Peru, of 60,000 inhabitants in the late 1990s, to water and air pollution for thirty years. The smelter was built in 1969, 15 km north of Ilo, it spewed daily almost two thousand tons of sulfur dioxide, while tailings and slag were discharged without treatment on land, and also on the ocean where, it was claimed, “several kilometres of coastline are totally black” (Ivonne Yanez, in the ELAN website, 4 October 1996). The actors are this time speaking on both sides an explicitly environmental language (Diaz Palacios, 1988, Balvin 1995). The Southern Peru Copper Corporation is Peru’s major single exporter. The conflict is more urban than it was in the central Sierra, and two appeals to international courts have been made. The local authorities presented a successful complaint in 1992 to the (unofficial) International Water Tribunal in the Netherlands in 1992, obtaining its moral support. A class-action suit was initiated at the District Court for the Southern District of Texas, Corpus Christi Division, in September 1995 but is was dismissed after the Peruvian state typically asked for the case to be brought back to Peru. The plaintiffs, on behalf of people from Ilo, most of them children with respiratory illnesses, complained that the pollution from sulfur dioxide had not appreciably decreased in the last years, despite the construction of a sulfuric acid plant (which recuperates sulfur dioxide). The federal court judge decided on 22 January 1996 against admitting the case into the U.S. judicial system on grounds of forum non conveniens. [A]THE STORY OF RIO TINTO AND OTHER STORIES 3/2001-UHE/UAB-16/05/2001 6 It was in Huelva, in the southern Spanish region of Andalusia in the 1880s, years before the words environment and ecology became common social coinage, that the first big environmental conflict associated with the name of Rio Tinto took place (Amery, 1974, Ferrero, 1994). The old royal mines of Rio Tinto were bought in 1873 by British and German interests, under Hugh Matheson, first chairman of the Rio Tinto Company. A new railway to the harbor of Huelva was immediately built, which was kindly made also available to local passengers on week-days (not on local holidays or Queen Victoria’s birthday). A very large open-pit mining operation was launched. Eighty years later, in 1954, the mines were sold back to new Spanish owners, the original Rio Tinto company keeping one-third interest. This British company Rio Tinto (renamed Rio Tinto Zinc) went on to become a worldwide mining and polluting giant (Moody, 1992) - its name, its business origins, its archive in London, all point to Andalusia, where a massacre by the Army on the 4th February 1888 of local farmers and peasants, and syndicalist miners, was the culmination of years of protests against sulfur dioxide pollution. Historians still debate the number of deaths caused when the Pavia Regiment opened fire against a large demonstration in the plaza of the village of Rio Tinto: “The company could not find out, and in any case soon decided it was better to play down the seriousness of the whole affair and gave up its attempts to discover the number of casualties, though Rio Tinto tradition puts the total number of dead at between one and two hundred” (Amery, 1974:207, also Ferrero, 1993: 83 ff.) . Historians also debate whether the miners complained only against the fact that excessive pollution prevented them from working on some days (days of manta, i.e. blanket) and therefore from earning full wages on those days, or whether they complained against pollution per se because of damage to their own and their families’ health. The company was taking out a large quantity of copper pyrites, employing some ten thousand miners. The idea was to sell the copper for export, and also as a by-product the sulfur in the pyrites (used for manufacturing fertilizers). The amount of ore extracted was so large, that in order to obtain the copper quickly, a lot of the sulfur was not recuperated but was thrown into the air as sulfur dioxide when roasting the ore in teleras in a process of open-air calcination, previous to smelting the concentrate. “The sulphurous fumes from the calcining grounds were a major cause of discontent. They produced an environment that everyone resented, for the pall of smoke which frequently hung over the area destroyed much of the vegetation and produced constant gloom and dirt” (Amery, 1974:192). Large and small farmers, though the company was paying monetary compensation to them, managed to convince some of the councils from small surroundings villages to forbid open-air calcination in their own municipal territories. The company successfully intrigued (through members of the Spanish Parliament in its pay) to segregate Rio Tinto as a municipal territory of its own (being part of the territory of Zalamea, a larger town), on the reasonable argument that population in the mining area had increased very much. The company was keen to have local municipal officers favorable to her. On the 4th February 1888, the immediate causes for the strike had been the complaint against the non-payment of full wages in manta days, and the demand for the abolition of piece-work and for the end of the deduction of one 3/2001-UHE/UAB-16/05/2001 7 peseta weekly from the wage bill to cover expenses of the medical fund. Maximiliano Tornet, the miners’ syndicalist leader, an anarchist who had been deported from Cuba back to Spain some years earlier, had managed to make an alliance with the peasants and farmers (and some landowners and local politicians) who had constituted the Huelva Anti-Smoke League. When the Army arrived in the plaza full of striking miners and peasants and peasant families from the region damaged by sulfur dioxide, an argument was going on inside the Rio Tinto town-hall on whether open-air teleras should be prohibited by municipal decree not only in surrounding villages but also in Rio Tinto itself. In terms of today’s language of environmental management, the local stakeholders (syndicalists, local politicians, peasants and farmers) did not achieve successful conflict resolution, let alone problem resolution. Had the municipality publicly announced a decree against open-air calcination, the tension in the plaza would have diminished, the strike would have been called off. Other stakeholders, that is, the Rio Tinto company and the civil governor in the capital of the province, were in the meantime mobilizing other resources, namely, arranging for troops to be brought into action. It is not known for sure who first shouted “fire”, perhaps a civilian from a window (Amery, 1974:205), but the soldiers understood the shout as an order to start shooting into the crowd.2 The popular interpretation of this episode in terms of environmentalism became unexpectedly relevant one hundred years later, as the village of Nerva, exactly in this region, struggled in the 1990s against the regional authorities over the siting of a large hazardous waste dump (precisely in a disused mine), local environmentalists and village officials explicitly appealing to the living memory of that “year of shots” of 1888 (Garcia Rey, 1997), fifty years before the Civil War of 1936-39, when the miners of Rio Tinto were massacred again, this time for non-ecological reasons. Meanwhile, sceptics on the thesis of popular environmentalism point out that, in 1888, the workers were more worried about wages that about pollution, and that the peasants and farmers were manipulated by local politicians who wanted to make money from the Rio Tinto company or who had their own disagreements with other politicians at national level on the treatment given to the British company - so conspicuously British that it sported an Anglican church and a cricket team.3 “Retrospective” environmentalism related to mining and air pollution is becoming a staple of social history in many countries. Not only air pollution, also water pollution (as in the Watarase river in Japan, and in Ilo, Peru) is important. It is present in other types of mining, for instance pollution by mercury, the azogue which the Spaniards employed in Potosi and also in Mexico to amalgamate with silver, and which today is used in Amazonian rivers to amalgamate with gold. Mercury was the origin of famous diseases in Japan from the 1950s onwards (though the consumption of fish), the best- known non-radioactive pollution episodes in the post-1945 history of Japan. Extraction of copper has been increasing at about 1.5 per cent per year still in the 1990s. If prices go down it is because of oversupply and not because of lack of 3/2001-UHE/UAB-16/05/2001 8 demand. I had planned already to include the following contemporary conflict, which now looks to me even more significant. In the late 1990s, in the region of Intag (Cotocachi, province of Imbabura) in northern Ecuador, Mitsubishi was defeated by a local non-governmental organization, Decoin, with help from Ecuadorian and international groups, in its plans to start mining for copper. I know this case first-hand, because of my relation with Accion Ecologica (Quito) which helped Decoin. The idea was to relocate one hundred families to make way for open-cast mining, bringing in thousand of miners in order to extract a large reserve of copper. This is a beautiful and fragile area of cloud forest and agriculture, with a mestizo population. Rio Tinto had already shown interest, but its previous incursions in Ecuador (at Salinas in Bolivar, at Molleturo in Azuay) ended in retreats. A Mitsubishi subsidiary, Bishi Metals, started in the early 1990s some preliminary work in Intag. After many meetings with the authorities, on May 12, 1997, a large gathering of members of affected communities resorted to direct action. Most of the company’s goods were inventoried and removed from the area (and later given back to the company), and the remaining equipment was burnt with no damage to persons. The government of Ecuador reacted by bringing a court case for terrorism (a rare event in Ecuador) against two community leaders and the leader of Decoin but the case was dismissed by the courts one year later. Attempts to bring in Codelco to mine (the Chilean national copper company) were also defeated, when Accion Ecologica from Quito sent one activist, Ivonne Ramos, to downtown Santiago to demonstrate with support from Chilean environmentalists on the occasion of a state visit of the president of Ecuador, and she was arrested. The publicity convinced Codelco to withdraw. Accion Ecologica also organized a visit by women belonging to the Intag communities, to copper mining areas in Peru, like Cerro de Pasco, La Oroya and Ilo. The women did their own interviews in those areas, and came back to Intag with their own impressions, carrying sad miners’ music and lyrics which became an immediate hit in Intag. These triumphant local women still deny to this day that they are environmentalists, or, God forbid, ecofeminists.4 Today there are several initiatives for alternative forms of development in Intag, one of them being the export of “organic” coffee to Japan arranged through environmental networks first contacted in the fight against Mitsubishi. But the copper ore is still there, underground, and the world demand for copper (despite calls for the “dematerialization” of the economy) keeps increasing. [A]BOUGAINVILLE AND WEST PAPUA Copper mining is more successful elsewhere, though not without conflicts. In the island of Bougainville, the Rio Tinto Zinc company got into trouble because of local opposition despite the agreement the company had made with the government of Papua New Guinea, which has sovereignty over Bougainville, in order to exploit the site of what was described as the most profitable copper and gold mine in the world. Back in 1974, it was reported that “the natives of Bougainville have stopped throwing geologists into the sea even since the company [Rio Tinto Zinc] declared itself willing to compensate them for the land it had taken with cash and other material services”. 3/2001-UHE/UAB-16/05/2001 9 However, it was also reported that monetary compensation was not enough: “The village communities affected gave the highest importance to land as the source of their material standard of life. Land was also the basis of their feelings of security, and the focus of most of their religious attention. Despite continuing compensation payments and rental fees, local resentment over the taking of the land remains high, and there is strong opposition to any expansion of mining in Bougainville, whether by the existing company, the government, or anyone else” (Mezger,1980:195). Finally, the tiny island of 160,000 inhabitant erupted into a secessionist war at the end of the 1980s. We notice here the use of languages such as sacredness, and national independence. We notice also that the language of monetary compensation was brought into play. Not far from Bougainville, the copper extraction frontier reached West Papua under Indonesia’s sovereignty, thirty years ago at a copper and gold mine called Grasberg owned by Freeport McMoRan from New Orleans, a company run by a colorful CEO, Jim Bob Moffet.5 Rio Tinto has a participation in this mine. The plans are in 2000 to mine daily 300,000 tons of ore, of which 98 per cent would be dumped into the rivers as tailings. The “ecological rucksack” of this operation includes of course not only the discarded tailings but also the overburden, that is all the materials removed before reaching the ore. The total copper content to be finally recovered would be nearly 30 million tons of copper, three years of world production, which would come into the market at a rate which would make of Grasberg the supplier of nearly ten per cent of world copper every year. This open cast mine is at high altitude, next to a glacier. The deposit originally formed the core of a 4,100 m. mountain, and the bottom of the open pit now lies at the 3,100 m. level. The current expansion would mean an annual extraction of ore that would allow an annual output of 900,000 tons of copper, and of 2.75 million ounces of gold.6 Water pollution in the Ajkwa river has been up to now the major environmental complaint, and acid drainage will be an increasing problem. The ecology of the island is particularly sensitive, and the scale of operations is enormous. In 1977, at the initial stages of operation, some Amungme rebelled, and destroyed the slurry pipeline carrying copper concentrate to the coast. Reprisals by the Indonesian army were terrible. Many complaints against Freeport McMoRan led to an initially unsuccessful class-action suit in New Orleans in April 1996 by Tom Beanal and other members of the Amungme tribe. Tom Beanal declared (at a speech at Loyola University, New Orleans, 23 May 1996): “These companies have taken over and occupied our land...Even the sacred mountains we think of as our mother have been arbitrarily torn up, and they have not felt the least bit guilty... Our environment has been ruined, and out forests and rivers polluted by waste... We have not been silent. We protest and are angry. But we have been arrested, beaten and put into containers: we have been tortured and even killed”. Tom Beanal was reported to have gotten some money from the company for his own NGO, an attempt at a classic procedure for conflict resolution, but the legal case made some progress in the Louisiana courts in March 1998 on the issue of whether U.S. courts could have jurisdiction. The best-known representative of the Amungme is now Yosepha Alomang, subjected to detention in horrible conditions in 1994, and who was 3/2001-UHE/UAB-16/05/2001 10 prevented from leaving the country in 1998 when she wanted to attend a Rio Tinto’s shareholders’ meeting in London.7 Some Freeport’s shareholders have been publicly concerned about the liabilities incurred by the company in Indonesia. Henry Kissinger is a director of Freeport. The company was deeply involved with the Suharto regime, having given shares in the company to relatives and associates of the ex- President. Freeport is also the biggest source of tax revenue for Indonesia. Which line will the new Indonesian government, and also the separatist movement in West Papua (Organisasi Papua Merdeka, OPM), take towards plans by Freeport (and Rio Tinto) to expand the extraction of copper and gold ore? The OPM has staged ceremonies raising the Papuan flag in the last thirty years, answered violently by the Indonesia Army and by Freeport’s security forces (one famous instance took place on Christmas Day of 1994 at Tembagapura, a locality near the Grasberg mine). Will claims for an ecological debt to be paid by Freeport McMoRan be made not through a private class-action suit brought by indigenous tribes but as a result of an Indonesian governmental action, an international replica of a Superfund case in the United States? Attempts to obtain indemnities for international externalities caused by TNCs outside their legal country of residence are interesting ingredients in the calculation of the many environmental liabilities which the North owes to the South, the sum of which would amount to a large ecological debt. The Indonesian state had an authoritarian regime (or less politely, it was a capitalist dictatorship) from the mid-1960s until the end of the 1990s. The circumstances in West Papua (or Irian Jaya, this being at the time the official Indonesian name) with both a very rich mine and a separatist movement, provided reasons for a heavy military presence. It would be a cruel joke to say that a suitable environmental policy (implementing the “polluter pays principle”) would have allowed externalities to be internalized into the price of exported copper and gold. Environmental economists forget to include the distribution of political power in their analysis. Some of them even believe in their touching innocence that environmental damages arise because of “missing markets”. In fact, externalities should be seen in general not as “market failures” but as “cost-shifting successes” (Martinez-Alier and O’Connor, 1996, 1999). The language of indigenous territorial rights (whose official acceptance would be a novelty in Indonesia), and even the stronger language of a separate national Papuan identity (which is historically relevant, since West Papua was annexed by Indonesia after the departure of the Dutch), may be used nowadays after the end of the dictatorship in order to fight the human and environmental disaster caused by the world’s largest gold mine and the third-largest copper mine. Freeport McMoRan is building in 2000 with Mitsubishi a large smelter at Gresik in Java, for export of copper to Japan. Freeport McMoRan also happens to own in Huelva, Spain, the firm Atlantic Copper which is the successor of the copper smelting and refining operation of the Spanish Rio Tinto company formed after 1954, and 3/2001-UHE/UAB-16/05/2001 11 where copper concentrate from Grasberg is taken. It is all as a large family. In international purely political conflicts without real substance, such as a dispute between states over a strip of useless territory, by reaching a peace agreement and drawing a new frontier, both the conflict and the problem disappear. Sometimes, as in the last twenty years for the threat by CFC to the ozone layer, or for transboundary sulfur dioxide emissions in Europe, agreements are reached which lead to regimes that solve both the conflict and the problem. Instead, in many other environmental cases, solving the conflict is not equivalent to solving the problem. In order to advance towards problem-resolution, what is then needed is not conflict-resolution, but conflict-exacerbation. [A]A FEW GOLD MINING CONFLICTS Gold is sometimes produced together with other metals, such as copper, but is often the primary objective in mining enterprise. Gold mining is similar in a sense to shrimp farming, or to the extraction of tropical wood like mahogany. Its demand is directly driven by consumption. About 80 per cent of all gold that is dug out of the ground ends up as jewelry. Now, however, is consumption the real driver of the economy? Are not changes of techniques the real drivers of capitalism, and are they not introduced in production, rather than consumption, because of the pressures of competition and profits? Moreover, could not enough consumption to maintain production levels be secured already by the incomes gained in relatively dematerialized activities - a Seattle economy without Boeing? Interesting but premature questions, because the economy is not dematerializing and because consumption has a life of its own, it is not determined by the necessity to sell production. The economy is driven by the profit-rate. It also driven by conspicuous consumption or the wish to obtain positional goods. Hence the use of increased incomes in order to buy more and more gold, a habit of the human species in which the East and the West truly meet. The price of gold makes it still profitable to open new mines. Gold lasts a very long time but the existing stock of gold in the world, counting also the central banks’ reserves, does not seem to satisfy humankind’s desires, and there is pressure to open new mines not to substitute for gold which is lost but to accumulate new stocks. Why do not the central banks sell the gold they have? Some religions forbid consumption of shrimps or pork or beef or other types of food. Is there any religion that forbids the mining and accumulation of gold? Gold mining is particularly destructive, both when it is small-scale (as the garimpeiros in Brazil) and when it is large-scale by corporations such as Placer Dome, Newmont, or Freeport or Rio Tinto or Anglo- American. Gold leaves behind enormous “ecological rucksacks”, and also pollution from mercury or cyanide. The participants at a Peoples’ Gold Summit in San Juan Ridge, California, which was 3/2001-UHE/UAB-16/05/2001 12 held on June 2-8, 1999, asked for a moratorium on the exploration for gold. The manifesto coming out of this meeting begins: “Life, land, clean water and clean air are more precious than gold. All people depend on nature for life. The right to life is a guaranteed human right. It is, therefore, our responsibility to protect all of nature for present and future generations. Large-scale gold mining violently uproots and destroys the spiritual, cultural, political, social and economic lives of peoples as well as entire ecosystems. Historic and current destruction created by gold mining is greater than any value generated.8 Commercial gold mining projects are mainly on indigenous lands. By violating their land rights mining companies are denying the right to life of those indigenous peoples, whose relationship to land is central to their spiritual identity and survival. We need to support the self-determination of indigenous peoples and the recovery, demarcation and legal recognition of campesinos, tribal and indigenous peoples’ lands... Large-scale and small-scale, toxic chemical-dependent gold mining damages landscapes, habitats, biodiversity, human health and water resources. Water especially is contaminated by cyanide, acid mine drainage, heavy metals and mercury from gold mining. Additionally, the hydrological cycle is changed and water sources are grossly depleted by pumping water from aquifers”. There is no space here to describe in detail the conflict in Peru, at the time of writing, between the Yanacocha mine in Cajamarca (where Atahualpa met Pizarro) and local communities that belong to the Federacion de Rondas Campesinas. The gold mine is owned by Newmont, and also by a local company, with a 5% share belonging to the International Finance Corporation of the World Bank. In Venezuela, under the government that preceded President Hugo Chavez, Decree 1850 of 1997 tried to open up the forest reserve area of Imataca of three million ha to gold mining. A movement arose which comprised the sparse local indigenous Pemon population, some environmental groups such as Amigransa (the friends of the Gran Sabana), some anthropologists and sociologists, and some members of Parliament. They all used different languages (from Indian demonstrations in the streets of Caracas to legal appeals to the Supreme Court) in the service of the same cause. They managed for the time being to stop mining in Imataca. The environmental commission of the Chamber of Deputies of Venezuela appealed to the Supreme Court against Decree 1850, quoting a figure between US$ 7 thousand and 23 thousand per hectare for the restoration of the vegetable cover affected by oil exploitation, a useful if moderate figure in order to calculate the large environmental liabilities that gold mining, with its toxic effects and large ecological rucksacks, implies.9 [A]ENVIRONMENTAL JUSTICE “Environmental Justice” is not an expression taken, as one would expect, from philosophy or ethics but from environmental sociology and from the study of race relations. In the United States it has come to mean since the late 1980s and early 1990s an organized movement against “environmental racism, i.e. the disproportionate allocation of toxic waste to Latino or African-American communities. It is also relevant for Indian reservations in the United States, 3/2001-UHE/UAB-16/05/2001 13 particularly in the context of uranium mining and nuclear waste. Indeed, “environmental justice” could subsume historic conflicts on sulfur dioxide, the Chipko and Chico Mendes cases, the current conflicts on the use of carbon sinks, the conflicts on oustees from dams, the fight for the preservation of rainforests or mangroves for livelihood, and many other cases around the world which sometimes have to do with “racism” and sometimes not. The Environmental Justice movement in the United States (Bullard, 1990,1993, Pulido, 1991, 1996, Bryant and Mohai, 1992, Bryant, 1995, Sachs, 1995, Gottlieb, 1993, Szasz, 1994, Schwab, 1994, Westra and Wenz, 1995, Dorsey, 1997, Faber, 1998, DiChiro, 1998, Camacho, 1998, Taylor, 2000) is quite different from the two previous environmentalisms in this country, namely, the efficient and sustainable use of natural resources (in the tradition of Gifford Pinchot), and the cult of wilderness (in the tradition of John Muir). As a self-conscious movement, Environmental Justice fights against the alleged disproportionate dumping of toxic waste or exposure to different sorts of environmental risk in areas of predominantly African-American, or Hispanic or Native-American populations. The language employed is not that of uncompensated externalities but rather the language of race discrimination, which is politically powerful in the United States because of the long Civil Rights struggle. In fact, the organized Environmental Justice movement is not an outgrowth of previous currents of environmentalism but rather an outgrowth of the Civil Rights movement. Thus, in the Third World, the main socio-environmental question was in the 1980s whether an indigenous, independent Environmentalism of the Poor existed, a question first theorized in India and, later, in Latin America and Africa, because of episodes of defense of common property resources against the State or the Market (Martinez-Alier and Guha, 1997, 1999). Meanwhile, in the United States the question was whether the buoyant mainstream environmental movement would deign to consider the existence of “environmental racism”, whether it could accept and work with “minorities” which were mainly concerned with urban pollution. There are many cases of local environmental activism in the United States by “citizen- workers groups” (Gould et al., 1996) outside the organized Environmental Justice movement, some with one-hundred years’ roots in the many struggles for health and safety in mines and factories, perhaps also in complaints against pesticides in Southern cotton fields, and certainly in the struggle against toxic waste at Love Canal in upstate New York led by Lois Gibbs (Gibbs, 1981, 1995) who also later led a nation-wide “toxics-struggles” movement showing that poor communities would not tolerate any longer being dumping grounds (Hofrichter, 1993). In the “official” Environmental Justice movement are included celebrated episodes of collective action against incinerators (because of the uncertain risk of dioxins), particularly in Los Angeles, led by women. Also in the 1980s, other environmental conflicts gave rise to groups such as People for Community Recovery in South Chicago (Altgeld Gardens), led by Hazel Johnson, and the West Harlem Environmental Action (WHEACT) in New York, led by Vernice Miller. In 1989, the South-West Network for Economic 3/2001-UHE/UAB-16/05/2001 14 and Environmental Justice (SNEEJ), led by Richard Moore, was founded, with its main seat in Albuquerque, New Mexico, out of grievances felt by Mexican and Native American populations. In October 1991 the First National People of Color Environmental Leadership Summit took place in Washington D.C., the Principles of Environmental Justice were proclaimed, and the movement for Environmental Justice became well known. President Clinton’s Executive Order 12,898 of 1994 on Environmental Justice was a triumph for this movement. It directed all federal agencies (though not corporations or private citizens) to act in such a way that disproportionate burdens of pollution do not fall on low income and minority populations in all territories and possessions of the United States. Thus, both poverty and race were taken into account, and nothing was said about impacts outside the United States. Happy the country where “low-income” people are regarded as a minority (alongside or overlapping with racial “minorities”)! The insistence on “environmental racism” is sometimes surprising to analysts from outside the United States. In fact, some foreign academics refuse to acknowledge the racial angle, and have boldly stated that: “If one were asked to date the beginning of the environmental justice movement in the United States, then 2 August 1978 might be the place to start. This was the day when the CBS and ABC news networks first carried news of the effect of toxic waste on the health of the people of a place called Love Canal” (Dobson, 1998:18). However, the Love Canal people, led by Lois Gibbs, were not people of color, they were white, as such categories are understood in the U.S., and therefore were subject only to metaphorical, not real “environmental racism”. Other non-U.S. academics agree with the interpretation that Environmental Justice is in the U.S. a movement against “environmental racism”. I also agree. Thus, the seminal moment (Low and Gleeson, 1998: 108) was in 1982 in Warren County, North Carolina. Of course, one could also argue that the world environmental justice movement started long ago at a hundred dates and places all over the world. For instance, in Andalusia in 1888, when miners and peasants at Rio Tinto were massacred by the army. Or when Tanaka Shozo threw himself in front of the Emperor’s carriage with a petition in his hand. Or, in the United States, not in North Carolina but in the struggles against mining corporations in Wisconsin conducted by alliances of Indian tribes and environmentalists in the 1970s and 1980s (Gedick, 1993), and in many other struggles of resistance by Native Americans, from Canada to Tierra del Fuego. Which will be the worldwide First of May or Eighth of March of Environmental Justice and the Environmentalism of the Poor? Chico Mendes’ assassination day, Ken Saro-Wiwa’s, or perhaps the day the Rainbow Warrior was sunk by the French secret services in New Zealand, and its Portuguese cook died? Or when Karunamoi Sardar died defending her village in Horinkhola, Khulna, Bangladesh, on 7 November 1990?10 The self-conscious Environmental Justice movement in the United States of the 1980s and 1990s shifted the whole discussion about environmentalism in the United States away from preservation and conservation of Nature towards social justice. It 3/2001-UHE/UAB-16/05/2001 15 destroyed also the NIMBY image of grassroots environmental protests by turning them into NIABY protests (not in anyone’s backyard). Also, it expanded the circle of people involved in environmental policy by practicing “post-normal science” in the “popular epidemiology” movement. In the United States, the legislation against racism (such as Title VI of the Federal Civil Rights Act of 1964) forbids discrimination based on race. However, in order to establish the existence of racism, it is not sufficient to prove that environmental impact is different (for instance, that lead in children’s blood level is different according to racial background). It must also be shown that there an explicit intention to cause harm to a minority group. The uncertainties of environmental risk (for instance, dioxin), and the statistical difficulties in separating racial and economic factors in toxic waste location decisions, have given rise to a rich practice of “popular epidemiology” (Novotny, 1998). It might be difficult to prove that race more than poverty correlates with toxic waste, but if this is convincingly shown, then the chances of redress are high. Lay persons gather scientific data and other information, and they also process the results offered by official experts in order to challenge them in cases involving toxic pollution, a clear case of “extended peer review”. By emphasizing “racism”, the movement for Environmental Justice also emphasizes incommensurableness of values. This is its greatest achievement. If I pollute a poor neighborhood, by applying the polluter pays principle (PPP), I may compensate the damage. This is more easily written than done, because, how much is human health worth? In which scale of value? Nevertheless, the PPP implies that a worsening ecological distribution is in principle compensated by an improving economic distribution. The objective is of course to make pollution expensive enough so that its level will decrease by a change in technology or by a lower level of polluting production. Whatever the objective, the principle implies a single scale of value. Now, the same problem phrased in terms of “environmental racism” becomes a different problem. I can inflict damage to human dignity by using a racial insult or by racial discrimination. Paying a fine does not entitle me to repeat such conduct. There is no real compensation. Money and human dignity are not commensurate. Bullard, who is both an academic and an activist, realizes the potential of the Environmental Justice movement beyond “minority” populations, and asserted in 1994: “Grassroots groups, after decades of struggle, have grown to become the core of the multi-issue, multi-racial, and multi-regional environmental justice movement. Diverse community-based groups have begun to organize and link their struggles to issues of civil and human rights, land rights and sovereignty, cultural survival, racial and social justice, and sustainable development... Whether in urban ghettos and barrios, rural “poverty pockets”, Native American reservations, or communities in the Third World, grassroots groups are demanding an end to unjust and non-sustainable environmental and development policies...”.11 Notice then the clear awareness that environmental justice is functional to sustainability, and that it concerns poor people everywhere, including indeed Third World communities, that is, billions of people. 3/2001-UHE/UAB-16/05/2001 16 Low-income “people of color” are a minority in the U.S. but they are certainly a majority in the world at large. There are some ecological distribution conflicts in the world (the European conflicts on nuclear risks as expressed at famous fights in Gorleben or Creys-Malville, or again the European conflict against U.S. “hormone beef” and transgenic crops, or the current conflict on the Three Gorges dam in China, for instance), for the analysis and resolution of which, the metaphor of “environmental racism” is not useful. On the other hand, we could retrospectively apply “environmental racism” to one of the many forms of racism that the Spaniards showed in America, by imposing a terrible load of mercury poisoning to indigenous workers in silver mines (Dore, 1999). Environmental racism is often a useful language for conflicts which have been fought up to now under the banner of indigenous territorial rights. Activists and lawyers in the class action suit against Texaco from Ecuador, blamed Texaco in advertisements in U.S. newspapers in 1999 for “environmental racism”. Profiting from the publicity against Texaco because of a court case for internal racism against black employees in the United States (settled out of court in 1997 for US$ 176 million), sympathizers for the Ecuadorian plaintiffs placed an advertisement in the New York Times (23 Sept. 1999) which stated: “The lawsuit alleges that in Ecuador, Texaco dumped the poisonous water produced by oil drilling directly onto the ground, in nearby rivers, and in streams and ponds. The company knowingly destroyed the surrounding environment and endangered the lives of the indigenous people who had lived and fished there for years. These are people of color, people for whose health and well-being Texaco shows only a cavalier disregards... It’s time that Texaco learns that devaluing the lives and well-being of people because of the color of their skin is no longer acceptable for any American company”. Notice that this language, so effective in the United States, was not used when the case started in 1993, and it would be problematic though not impossible to apply it to Texaco’s successor, Petroecuador, which has used similar technology damaging not only indigenous people but also average mestizo Ecuadorian settlers. Perhaps “internal colonialism” (Adeola, 2000) could be used against Petroecuador, as against the Nigerian authorities, while “racism” could be reserved for Texaco (or Shell, in Nigeria). [A]INTERNATIONAL ENVIRONMENTAL LIABILITIES Environmental conflicts in South Africa are often phrased in the language of environmental justice (Bond, 2000). Thus, a conflict in the late 1990s which continues at the time of writing places environmentalists and local populations against a project near Port Elizabeth for the development of an industrial zone, a new harbor, and a smelter of zinc for export, owned by Billinton, a British firm which would guzzle up electricity and water at cheap rates while poor people cannot get the small amounts of water and electricity they desperately need, or in any case must pay increasing rates under current economic policies . The Billinton project has costs in terms of tourists’ revenues because of the threats to a proposed national elephant park extension nearby, 3/2001-UHE/UAB-16/05/2001 17 to beaches, estuaries, islands and whales (Bond, 2000:47). There are also costs in terms of the displacement of people from the village of Coega. This point was emphasized in a letter sent by the Southern Africa Environment Project to Peter Mendelson, the British Secretary of State for Trade and Industry: “We are writing on behalf of those who have historically lacked the capacity to assert their rights and protect their own interests but who now seek to be heard and to call to the attention of the international community the injustice that is now about to be inflicted upon them”. The life of the people of Coega was already full of memories of displacements under the racist regime of apartheid. Although Billinton could no longer profit from the lack of voice of the people under apartheid, now -it was alleged- it sought “to take advantage of the region’s desperate need for employment to enable construction of a highly polluting facility that would never be allowed adjacent to a major population centre in the U.K. or any other European country”.12 A small improvement in the economic situation of the people would be obtained at high social and environmental cost, because of displacement of people, and also because of increased levels of sulfur dioxide, heavy metals, dust, liquid effluents. An appeal was made to British Minister to take into account OECD’s guidelines for multinational enterprises which include a chapter on environmental protection since 1991, but which are no more than recommendations which the authorities cannot enforce directly. The Minister was asked in any case to exercise his influence upon Billinton informally. The environmental impacts which the apartheid regime left behind are now surfacing. There are large liabilities to be faced. Best known is the asbestos scandal, which includes international litigation initiated by victims of asbestosis against British companies, particularly Cape. Nearly 2000 persons asked for compensation because of personal damages as a result of Cape’s negligence in supervising, producing and distributing asbestos products. The lawyers argue that Cape was aware of the dangers of asbestos at least from 1931 onwards, when Britain asbestos regulations were introduced. Nevertheless production continued in South Africa with the same low safety standards until the late 1970s. Medical researchers have found that 80 per cent of Penge’s black miners (in Northern Province) who died between 1959 and 1964 had asbestosis. The average age of the victims was 43. Cape operated a mill for 34 years in Prieska, Northern Cape, where 13 per cent of workers’ deaths were attributed to mesothelioma, a very painful asbestos related cancer. Asbestos levels in this mill in 1948 were almost 30 times the maximum UK limit. There are other cases in South Africa of asbestos contamination, by companies such as Msauli and GEFCO, at locations such as Mafefe, Pomfret, Barberton, Badplass (Felix, in Cock and Koch, 1991). Contaminated abandoned mines and asbestos dumps must nowadays be rehabilitated by the post-apartheid South African governments. Simultaneously, court cases were started against Cape in the U.K., and the House of Lords (in its judicial capacity) ruled for a while (until July 1999, when the judgement was reversed) that such cases could be heard in London rather than in South Africa. It seemed that British companies 3/2001-UHE/UAB-16/05/2001 18 could be sued in British courts. Against GATT-WTO doctrine, the asbestos court case and similar ones, if successful, would show that international regulation is required not only about the safety and quality of the final products but also on the process of production and its side-effects. When regulation failed or was non-existent, and when effective protest was impossible because of political repression, there are then retrospective liabilities to be faced. The courts will perhaps institute little by little a sort of international Superfund obligations for the transnational companies. True, the South African apartheid state was blind to damage to black workers. The asbestos and mining companies most probably fulfilled internal South African laws as regards safety, wages, and taxes. Nevertheless, they should be held accountable for the “externalities” that they left behind. Given the chance, workers and their families would have complained, not so much because they were environmentalists but because their health was threatened. The law firm which represents the asbestosis victims (Leigh, Day) also brought actions in London for damages to workers at Thor Chemicals in KwaZulu-Natal on behalf of victims of poisoning by mercury, and on behalf of cancer victims from Rio Tinto’s Rossing uranium mine in Namibia.13 In April 1990 massive concentrations of mercury had been detected in the Umgeweni River near the Thor Chemicals’ Cato Ridge plant. This was reported in the national and international press. Thor Chemicals imported mercury waste into South Africa, partly supplied by Cyanamid, an American company. South African environmental groups, mainly Earthlife under Chris Albertyn’s leadership, allied themselves with the Chemical Workers Industrial Union, the local African residents under their chief, and also white farmers from the Tala Valley who had already endured a bad experience of pesticide spraying from the neighboring sugar industry. A true “rainbow” alliance, which also incorporated U.S. activists against the Cyanamid plant in question, complained against such “garbage imperialism” or “toxic colonialism” by asking: “Why did Thor, a British company, decide to build the world’s larget toxic mercury recycling plant on the borders of KwaZulu in a fairly remote part of South Africa? Why not build it closer to the sources of the waste mercury in the United States or in Europe?” (Crompton and Erwin, in Cock and Koch eds., 1991:82-84). Actually, “the practice of exporting hazardous wastes for disposal in developing countries has been described as environmental injustice or environmental racism on a global scale”. (Lipman, 1998). The Basel Convention of 1989 forbids the export of hazardous waste from rich countries except for recovery of raw materials or for recycling. It was complemented on 25 March 1994 by a full ban negotiated at a meeting in Geneva on all exports of hazardous waste from the 24 rich industrialized countries of the OECD. The agreement was reached over the opposition of the richest countries, which received from Greenpeace, in this context, the name of the Sinister Seven. Some defections inside the European Union (Denmark, and later Italy) helped an alliance among China, Eastern European countries, and in general all southern poor countries in order to close in theory the “recycling” loophole of the initial 1989 convention though which ninety per cent of the waste was flowing. Thus, pending 3/2001-UHE/UAB-16/05/2001 19 ratification and domestic implementation of this agreement, and assuming also that Article 11 of the Basel Convention (which allows for bilateral or multilateral hazardous waste exporting agreements provided they comply with “environmentally sound management”) is not abused, then a sad chapter of industrialization would be closed. Rich countries would not be able to exploit the weaker regulations of poorer countries to avoid their own responsibility for minimizing waste. Clearly, the issue is far from over. The pressure for the export of toxic waste still increases, although the Basel Convention has had a positive effect. This is the context in which in November 1998 it was announced that nearly 3,000 tons of Taiwanese toxic waste from the group Formosa Plastics had been dumped in a field in the port of Sihanoukville in Cambodia. Taiwan is not a party to the Basel Convention. The waste was scavenged by poor villagers, many of whom later complained of sickness; one died quickly. (Human Rights Watch, 1999). The logic of Lawrence Summers’ Principle still remains compelling.14 The perception of risk changes with time, sometimes because scientific research produces clear results, sometimes because, on the contrary, scientific uncertainties cannot be dispelled, and a feeling of danger creeps in. Then, the question is asked: Who is responsible for cleaning up the (newly perceived) mess, or for paying indemnities or making reparations? How to assign environmental liabilities, granting that restoration may be impossible when irreversible damages or deaths are involved? Thus, the “Superfund” legislation in the United States is supposed to achieve the cleaning up of hazardous waste sites (chemical dumps, mine tailings...), which are called “orphaned” when no existing corporation or private citizen or public body is responsible. In this exceptional case, the burden of proof lies rather with polluting companies than with the polluted citizens or with the regulatory agency. Companies have to prove against EPA’ allegations that no risk of damage exists from the waste they have abandoned. Nuclear waste is excluded however from the Superfund legislation, which arose in the late 1970s (at the end of President Carter’s administration). Its official name is Comprehensive Environmental Response Compensation and Liability Act (CERCLA). As in Europe after the Seveso alarm (dioxin release from a chemical firm near Milan), in the United States after the Love Canal scandal near Niagara Falls in upper state New York, there was a feeling that something should be done to remedy damage done, and to make future damage costly by imposing strict norms of private or public liability. Superfund may also be interpreted as a government response to the first stirrings of the environmental justice movement. Cleaning up operations under Superfund are financed by special charges on the oil and chemical industries, when the sites are “orphaned”. When the companies are identified and still active, they have to pay for the cleaning up. The EPA must not act in an “arbitrary and capricious” manner but it has no obligation to prove that there is actual damage, only that there is a risk of damage. Critics of Superfund point out that the costs are too high compared to benefits, including administrative costs, and that the communities near the waste sites cleaned up do not always benefit economically because the improved environmental situation is 3/2001-UHE/UAB-16/05/2001 20 countered by the adverse environmental image. Notice that there is no international Superfund to which appeal can be made, should common-law judicial actions against Texaco, FreeportMacMoRan, Dow Chemical, Cape or the Southern Peru Copper Corporation fail. After listing a number of cases in the United States in which indemnities have been paid by corporations, such as the Exxon Valdez, a Venezuelan journalist asked himself in January 2000: “Being Venezuela a country dominated by the oil and mining industries, the question is, which is the pasivo ambiental (i.e. environmental liability) of all this oil and mining activity in our country?”15 It is fascinating to watch the diffusion of the term pasivo ambiental in a mining and oil extraction context in Latin America as one writes this article. Hector Sejenovich, from Buenos Aires, was perhaps the first economist to use this term when he calculated the environmental liabilities from oil extraction in the province of Neuquen, Argentina. The Argentinian Minister for the Environment Oscar Massei was quoted on 6 February 200 ( journal Rio Negro, on line) as saying that regional incentives to oil companies in Neuquen may not include flexibilization of environmental standards. The government, he added ominously, had in its possession the study made for UNDP which evaluated the pasivos ambientales from oil exploitation in Neuquen at one billion dollars. In Peru, a new law project was submitted to Congress in 1999 (project n. 786) creating an National Environmental Fund - as sort of internal GEF as a congressman put it. The Fund would finance environmental research, it would improve and restore the environment, and would promote ecological agriculture. Its economic resources would come mainly from a percentage of the revenue from the privatization of state enterprises. After complaining about the environmental deterioration in the last decades because of mining and fisheries, after commenting on increasing desertification and deforestation in the country, congressman Alfonso Cerrate quoted the case of the privatization of CENTROMIN (the State firm which was the successor to the Cerro de Pasco Copper Corporation), which was not successful. The environmental problems of Centromin must have been a factor in the lack of buyers at the auction. The question was, “who will pay for the ecological debt? Who will assume the environmental liability (pasivo ambiental) accumulated throughout the years by CENTROMIN and other state firms?” In Chile, new legislation on liabilities after closing mines was being discussed in 1999 and 2000. The Sociedad Nacional de Mineria was aware that environmental standards should improve, that there was a danger of being internationally accused of ecological dumping, and it was in favor of applying international environmental standards adapted of course to national realities. En el tema del pasivo ambiental, it added, discussions were proceeding but the general feeling in the industry was that the State should assume such environmental liabilities.16 The Bolivian vice-minister of Mines, Adan Zamora, referring to the pollution in the river Pilcomayo (that flows down from Potosi towards Tarija and eventually Argentina), increased by the bursting of a 3/2001-UHE/UAB-16/05/2001 21 tailings dyke at Porco belonging to Comsur, had said in 1998: la nueva politica estatal minero-metalurgica tiene como responsabilidad remediar los pasivos ambientales originados en la actividad minera del pasado (Presencia, 16 June 1998). In fact, environmental liabilities in Potosi reach back to the 16th century. [A]CONCLUSIONS Driven by consumption, the throughput of energy and materials in the world economy has never been so large as today. Paradoxically, increases in eco-efficiency lead sometimes to increased demands of material and energy, because their costs diminish (the Jevons effect). Externalities will not decrease but on the contrary, increase because the growth of the world economy. We are certainly not in a “post-material” age. Externalities (i.e. cost-shifting) must be seen as part and parcel of the economy, which is necessarily open to the entry of resources and to the exit of residues. The appropriation of resources and the production of waste result in ecological distribution conflicts, which give rise to a worldwide Environmental Justice movement which in fact started many years ago. The Environmentalism of the Poor and the movement for Environmental Justice (local and global), grown from the complaints against the appropriation of communal environmental resources and against the disproportionate burdens of pollution, may help to move society and economy in the direction of ecological sustainability. Activists of the U.S. Environmental Justice movement have emphasized the links between the increasing globalization of the economy and environmental degradation of habitats for many of the world’s peoples: “In many places where Black, minority, poor or Indigenous peoples live, oil, timber and minerals are extracted in such a way as to devastate eco-systems and destroy their culture and livelihood. Waste from both high- and low-tech industries, much of it toxic, has polluted groundwater, soil and the atmosphere. Environmental degradation such as this, and its concomitant impact on human wealth and welfare, is increasingly seen as violation of human rights”. As mining, logging, oil drilling and waste-disposal projects push into further corners of the planet, people all over the world are seeing their basic rights compromised, losing their livelihoods, cultures and even their lives. “Environmental devastation globally and what we call “environmental racism” in the United States, are violations of human rights and they occur for similar reasons”.17 The management and resolution of such ecological distribution conflicts requires cooperation between business, international organizations, NGO networks, local groups, governments. Can this cooperation be based on common values and on common languages? We argue that this is not always the case, that whenever there are unresolved ecological conflicts, there is likely to be not only a discrepancy but incommensurability in valuation (Faucheux and O’Connor, 1998, Funtowicz and Ravetz, 1994, Martinez-Alier, Munda and O’Neill, 1998, 1999, Martinez-Alier and O’Connor, 1996, 1999, O’Connor and Spash, 1999). Environmental conflicts are 3/2001-UHE/UAB-16/05/2001 22 expressed as conflicts on valuation, either inside one single standard of valuation, or across plural values. In other words, “semiotic resistance” (O’Connor, 1993; Escobar, 1996:61) to environmental abuse may be expressed in many languages. To see in statements about human rights, indigenous rights, sacredness, culture, livelihood, a lack of understanding or an a priori refusal of the techniques of economic valuation in actual or fictitious markets, indicates a failure to grasp the existence of value pluralism. Different interests can be defended either by insisting on the discrepancies of valuation inside the same standard of value, or by resorting to non-equivalent descriptions of reality, i.e. to different value standards. Should legislation require dispersed minerals to be concentrated again to their previous state and the dispersed overburden to be restored, this would indeed change the pattern of prices in the economy. Beyond economic values, choices on the use of “natural capital” involve decisions about which interests and forms of life will be sustained, which will be sacrificed or abandoned. A common language of valuation is not available for such decisions. For instance, it can be stated that while humans have different economic values they all have the same value in the scale of human dignity. When we say that someone or something is “very valuable” or “not very valuable”, this is an elliptical statement (which requires the further question, in which standard of valuation? (O’Neill, 1993). For policy, what is needed is not cost-benefit analysis but rather a non-compensatory multi-criteria approach able to accommodate a plurality of incommensurable values (Munda, 1995, Martinez-Alier, Munda and O’Neill, 1998, 1999). While conventional economics looks at environmental impacts in terms of externalities which should be internalized into the price system, one can see externalities (following Kapp) not as market failures but as cost-shifting successes which nevertheless might give rise to environmental movements (Leff. 1986,O’Connor, 1988). Such movements will legitimately employ a variety of vocabularies and strategies of resistance, and they cannot be gagged by cost-benefit analysis or by the cost-effectiveness approach. In conclusion, conflicts on the access to natural resources or on the exposure to environmental burdens and risks, may be expressed: : Inside one single standard of valuation. How should the externalities caused by a firm be valued in money terms, when demanding compensation in a court case? How could an argument for conservation of a natural space be made or contested, in terms of the number and biological value of the species it contains, or in terms of its net primary production? An appeal to the particular experts is here appropriate. : Through a value standard contest or dispute, that is a class in the standards of value to be applied, as when losses of biodiversity, or in cultural patrimony, or damage to human livelihoods, or infringements on human rights, are compared in non- 3/2001-UHE/UAB-16/05/2001 23 commensurable terms to economic gains from a new dam or from a mining project or from oil extraction. There is a clash in standards of valuation when the languages of environmental justice, or indigenous territorial rights, or environmental security, are deployed against monetary valuation of environmental risks and burdens. Non- compensatory multi-criteria decision aids or participatory methods of conflict resolution are more appropriate for this second, common type of situation, than the mere appeal to the disciplinary experts. (O’Connor and Spash, 1999:5). Thus, ecological distribution conflicts are sometimes expressed as discrepancies of valuation inside one single standard of value (as when there is a disputed claim for monetary compensation for an environmental liability), but they often lead to multi- criteria disputes (or dialogues) which rest on different standards of valuation. Which is “the price of oil”?- asked Human Rights Watch in a report on the Niger Delta. Todo necio/ confunde valor y precio - agreed long ago Antonio Machado. ENDNOTES 1 Butte has been known as the “richest hill on Earth” in Montana local lore and history, an honor which belongs not to Butte’s copper but to Potosi’s Cerro Rico’s silver. Butte recently “has earned the more dubious distinction of being the Environmental Protection Agency’s geographically largest “Superfund” cleanup site, a legacy of mining history” (Finn, 1998: 250, fn. 8). Butte used to belong to the Anaconda Company, which bought from Guggenheim the Chuquicamata mine in Chile, possibly the largest copper mine on earth. No Superfund for Chuquicamata, nor for Potosi. 2 Ferrero (1993:214) lists the articles of the Criminal Code which were infringed. There were no judicial pursuits in Spain or in Britain. 3 Skeptics also point out correctly that in Aznalcollar, a village inside the polluted area of 1888, the miners of Bolliden clamored in 1999 for “their” mine to reopen, against middle-class environmentalists from Seville and Madrid. Bolliden is a Swedish- Canadian company whose tailings dike broke down in 1998 contaminating with heavy metals ten thousand hectares of irrigated agriculture (where cultivation has been discontinued), and threatening the Doñana national park in the delta of the Guadalquivir. 4 Accion Ecologica (Quito) and Observatorio Latinoamericano de Conflictos Ambientales (Santiago de Chile), A los mineros: ni un paso atras en Junin-Intag, Quito, 1999. (On the wayno music, p.66). 5 Much of the documentation on this case comes from the files from the Permanent People’s Tribunal on Global Corporations and Human Wrongs organized by the Lelio Basso Foundation at the School of Law, University of Warwick, Coventry, 22-25 March 2000. See also Eyal Press, “Freeport-McMoRan at Home and Abroad”, The Nation, July 31-August 7, 1995, and Robert Bryce (from the newspaper Austin Chronicle), “Spinning Gold”, Mother Jones, Sept.- Oct. 1996.. 3/2001-UHE/UAB-16/05/2001 24 6 Mining Journal (London), vol. 329, n. 8448, 26 Sept. 1997. 7 Survival for Tribal Peoples (London), Media Briefing May 1998, “Rio Tinto critic gagged”. 8 I would myself frame the issue in terms of incommensurableness of values rather than the value being larger or smaller. 9 The Economist, 12 July 1997, p. 30. El Universal (Caracas), 3 August 1997, p. 1-12. 10 “Horinkhola and the surrounding villages have been declared a “Shrimp-Free Zone”, and every November 7, thousands of landless peasants gather here in a show of solidarity with this community’s resistance against the shrimp industry” (Ahmed, 1997:15). 11 R. Bullard, Directory. People of Color Environmental Groups 1994-1995, Environmental Justice Resource Center, Clark Atlanta University, Georgia. My underlining. 12 Available at www.saep.org, letter from Norton Tennille and Boyce W. Papu to Peter Mandelson, 7 September 1998. 13 Ronnie Morris, “UK court demolishes double standards”, Business Report, 4 March 1999, and subsequent information downloaded from www.saep.org. A UN report stated in 1990 that the Rossing uranium mine in Namibia was “a theft under the law and must be accounted for when Namibia becomes independent”. 14 Internal World Bank memo, as reported in The Economist, 8 February 1992, under the title “Let them eat pollution”. This has become a favorite text for the Environmental Justice movement. 15 Orlando Ochoa Teran, Quinto Dia, 18 January 2000, relayed by J.C.Centeno through the Environment in Latin America discussion list (ELAN at CSF). Some of us have been struggling for years to introduce the equivalent expression deuda ecologica. 16 Danilo Torres Ferrari, Los avances de la normativa sobre Cierre de Faenas Mineras, Boletin Minero (Chile), 1122, June 1999. 17 Deborah Robinson, International Possibilities Unlimited, Washington DC, “Environmental Devastation and Home & Abroad: The Importance of Understanding the Link”, 1999, www.preamble.org/environmental_justice REFERENCES Adeola, F O (2000) ‘Cross-National Environmental Injustice and Human Rights’, American Behavioral Scientist, 43(4), pp686-706 Agarwal, A and Narain, S (1991) Global warming: a case of environmental colonialism, Centre for Science and Environment, Delhi Ahmed, F (1997) In Defence of Land and Livelihood. Coastal Communities and the Shrimp Industry in Asia, Consumers’ Association of Penang, CUSO, InterPares, Sierra Club of Canada, Ottawa and Penang Amery, D (1974) Not on Queen Victoria’s birthday. The story of the Rio Tinto mines, 3/2001-UHE/UAB-16/05/2001 25 Collins, London Anderson, M R (1996) ‘The conquest of smoke: legislation and pollution in colonial Calcutta’ in Arnold, D and Guha, R (eds) Nature, Culture and Imperialism: Essays on the Environmental History of South Asia, Oxford U.P., Delhi, pp293-335 Arnold, D and Guha, R (eds) (1996) Nature, Culture and Imperialism: Essays on the Environmental History of South Asia, Oxford U.P., Delhi Balvin, D, Tejada Huaman, J and Lozada Coastro, H (1995) Agua, mineria y contaminacion. El caso Southern Peru, Labor, Ilo Barham, B, Bunker, S G and O’Hearn, D (1994) States, Firms and Raw Materials. The World Economy and Ecology of Aluminum, Univ. of Wisconsin Press, Madison Baviskar, A (1995) In the belly of the river: tribal conflict over development in the Narmada valley, Oxford U.P., Delhi Beckenbach, F (1996) ‘Ecological and economic distribution as elements of the evolution of modern societies’, Journal of Income Distribution, 6(2), pp163-91 Beinart, W and Coates, P (1995) Environment and History. The taming of Nature in the USA and South Africa, Routledge, London and New York Bond, P (2000) ‘Economic growth, ecological modernization or environmental justice? Conflicting discourses in post-apartheid South Africa’, Capitalism, Nature, Socialism, 11(1), pp33-61 Broadbent, J (1998) Environmental politics in Japan: networks of power and protest, Cambridge U.P., New York Brosius, J P (1999) ‘Comments to A. Escobar, After Nature: steps to an anti- essentialist political ecology’, Current Anthropology, 40(1) de Bruyn S M and Opschoor J B (1997) ‘Developments in the throughput-income relationship: theoretical and empirical observations’, Ecological Economics 20, pp255-68 Bryant, B and Mohai, P (eds) Race and the incidence of environmental hazards, Westview, Boulder Bryant, B (ed) (1995) Environmental Justice. Issues, Policies and Solutions, Island Press, Washington DC 3/2001-UHE/UAB-16/05/2001 26 Bryant, R and Bailey, S (eds) (1997) Third World Political Ecology, Routledge, London Bullard, R (1990) Dumping in Dixie: race, class and environmental quality, Westview, Boulder Bullard, R (1993) Confronting environmental racism. Voices from the grassroots, South End Press, Boston Bunker S (1996) ‘Raw materials and the global economy: oversights and distortions in industrial ecology’, Society and Natural Resources, 9, pp419-29 Camacho, D E (ed) Environmental Injustices, Political Struggles. Race, Class and the Environment, Duke University Press, Durham and London Carrere, R and Lohman, L (1996) Pulping the South. Industrial tree plantations and the world paper economy, Zed, London Cleveland, C and Ruth, M (1998) ‘Indicators of dematerialization and the materials intensity of use’, Journal of Industrial Ecology, 2, pp15-50 Cock, J and Koch, E (eds) (1991) Going Green: People, Politics and the Environment in South Africa, Oxford U.P., Cape Town Costanza, R (ed) (1991) Ecological economics: the science and management of sustainability. Columbia Univ Press, New York Dembo, D, Morehouse, W and Wykle, L (1990) Abuse of Power. Social Performance of Multinational Corporations: the Case of Union Carbide, New Horizons Press, New York Diaz Palacios, J (1988) El Peru y su medio ambiente. Southern Peru Copper Corporation: una compleja agresion ambiental en el sur del pais, IDMA, Lima DiChiro, G (1998), ‘Nature as Community. The Convergence of Environmental and Social Justice’ in Goldman, M (ed) Privatizing Nature: political struggles for the global commons, Pluto, London Dobson, A (1998) Justice and the environment. Conceptions of environmental sustainability and dimensions of social justice. Oxford U.P, Oxford Dore, E (2000) ‘Environment and Society: Long-term Trends in Latin American Mining’, Environment and History, 6, pp1-29 (previous version in Spanish in Ecologia Politica, 7, 1994) 3/2001-UHE/UAB-16/05/2001 27 Dorsey, M (1997) ‘El movimiento por la Justicia Ambiental en EE.UU. Una breve historia’, Ecologia Politica, 14, pp23-32 Downs, A (1972), ‘Up and Down with Ecology: the issue-attention cycle’, Public Interest, 28 Summer Draisma, T (1997) Mining and ecological degradation in Zambia: who bears the brunt when privatization clashes with Rio 1992?, Environmental Justice and Global Ethics Conference, Melbourne, October (revised version, August 1998) Dryzeck, J S (1994) ‘Ecology and discursive democracy: beyond liberal capitalism and the administrative state’ in O’Connor, M (ed) Is capitalism sustainable?, Guildford, New York Ekins, P, Max-Neef, M (eds) (1992) Real-life economics. Understanding wealth creation, Routledge, London Epstein, B (2000) ‘Grassroots environmentalism and strategies for social change’, New Social Movements Network, updated 28 February. 2000, http://www.interweb- tech.com/nsmnet/docs/epstein.htm Erickson, J D and Chapman, D (1993) ‘Sovereignty for Sale. Nuclear waste in Indian country’, Akwe:kon Journal, Fall, pp3-10. Erickson, J D, Chapman, D and Johny, R E (1994) ‘Monitored retrievable storage of spent nuclear fuel in Indian country: liability, sovereignty, and socioeconomics’, American Indian Law Review, University of Oklahoma College of Law, pp73-103 Escobar, A (1996) ‘Constructing Nature. Elements for a post-structural political ecology’ in Peet, R and Watts, M (eds) Liberation ecologies, Routledge, London Faber, D (ed) (1998) The struggle for ecological democracy. The Environmental Justice movement in the United States, Guildford, New York Faucheux, S and O’Connor, M (eds) (1998) Valuation for Sustainable Development. Methods and Policy Indicators, Edgar Elgar, Cheltenham Ferrero Blanco, M D (1994) Capitalismo minero y resistencia rural en el suroeste andaluz. Rio Tinto 1873-1900, Diputacion Provincial, Huelva Finn, J L (1998) Tracing the veins. Of copper, culture and community from Butte to Chuquicamata, University of California Press, Berkeley 3/2001-UHE/UAB-16/05/2001 28 Friedman, J and Rangan, H (eds) (1993) In Defense of Livelihood. Comparative Studies in Environmental Action, UNRISD, Kumarian Press, Hartford CT Funtowicz, S and Ravetz, J (1991) ‘A new scientific methodology for global environmental issues’ in Costanza, R (ed) Ecological economics: the science and management of sustainability. Columbia Univ Press, New York Funtowicz, S and Ravetz, J (1994) ‘The worth of a songbird: ecological economics as a post-normal science’, Ecological Economics, 10(3), pp189-96 Gadgil, M and Guha, R (1995) Ecology and equity. The use and abuse of nature in contemporary India, Routledge, London Garcia Rey, J (1996) ‘Nerva: No al vertedero. Historia de un pueblo en lucha’, Ecologia Politica, 13 Gedicks, A (1993) The new resource wars. Native and environmental struggles against multinational corporations, South End Press, Boston Ghai, D and Vivian, J M (eds) (1992) Grassroots environmental action. People’s participation in sustainable development, Routledge, London Gibbs, L M (1981) Love Canal: my story, State University of New York Press, Albany Gibbs, L M (1995) Dying from dioxin: a citizen’s guide to reclaiming our health and rebuilding democracy, South End Press, Boston Goldman, M (ed) (1998) Privatizing Nature: political struggles for the global commons, Pluto, London Gottlieb, R (1993) Forcing the spring: the transformation of the American environmental movement, Island Press, Washington DC Gould, K A, Schnaiberg, A and Weinberg, A (1996) Local environmental struggles. Citizen activism in the treadmill of production, Cambridge U.P., New York Greenpeace (1988) International Trade in Toxic Waste, Greenpeace, Brussels Greenpeace (1994) The database of known hazardous waste exports from OECD to non-OECD countries, 1989-94, Greenpeace, Washington DC Guha, R (1989) The unquiet woods: ecological change and peasant resistance in the Himalaya, University of California Press, Berkeley (revised edition 1999) 3/2001-UHE/UAB-16/05/2001 29 Guha, R and Martinez-Alier, J (1997) Varieties of environmentalism. Essays North and South, Earthscan, London Guha, R and Martinez-Alier, J (1999) ‘Political Ecology, the Environmentalism of the Poor, and the Global Movement for Environmental Justice’, Kurswechsel (Vienna), Heft 3, pp27-40 Hays, S (1959) Conservation and the Gospel of Efficiency. The Progressive Conservation Movement 1898-1929, Harvard U.P., Cambridge Hays, S (1998) Explorations in Environmental History, University of Pittsburgh Press, Pittsburgh Hecht, S and Cockburn, A (1990) The fate of the forest: developers, destroyers and defenders of the Amazon, Penguin, London Hofrichter, R (ed) (1993) Toxic Struggles. The Theory and Practice of Environmental Justice, New Society Publishers, Philadelphia Hornborg, A (1998) ‘Toward an ecological theory of unequal exchange: articulating world system theory and ecological economics’, Ecological Economics, 25(1), pp127- 136 Human Rights Watch (1999) The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities Human Rights Watch (1999) Toxic Justice: Human Rights, Justice and Toxic Waste in Cambodia Jackson, T and Marks, N (1999) ‘Consumption, sustainable welfare, and human needs - with reference to UK expenditure patterns between 1954 and 1994’, Ecological Economics, 28, pp421-441 Keil, R et al. (eds) (1998) Political ecology. Global and local, Routledge, London Kuletz, V (1998) The tainted desert. Environmental and social ruin in the American West, Routledge, New York Kurien, J (1992) ‘Ruining the commons and responses of the commoners: coastal overfishing and fishworkers’ actions in Kerala state, India’ in Ghai, D and Vivian, J M (eds) Grassroots environmental action. People’s participation in sustainable development, Routledge, London, pp221-258 Leff, E (1995) Green Production. Toward an environmental rationality, Guilford, 3/2001-UHE/UAB-16/05/2001 30 New York Lipman, Z (1998) ‘Trade in hazardous waste: environmental justice versus economic growth’, Conference on Environmental Justice, Melbourne, http//www.spartan.unimelb.edu.au/envjust/papers Lohman, L (1991) ‘Peasants, Plantations and Pulp: the Politics of Eucalyptus in Thailand’, Bulletin of Concerned Asian Scholars, 23(4) Lohman, L (1996) ‘Freedom to plant. Indonesia and Thailand in a globalizing pulp and paper industry’ in Parnwell, M J G and Bryant, R L (eds) Environmental Change in South-East Asia. People, Politics and Sustainable Development, Routledge, London and New York Low, N and Gleeson, B (1998) Justice, Society and Nature. An exploration of political ecology, Routledge, London and New York Mallon, F (1983) The defense of community in Peru’s Central Highlands, Princeton U.P., Princeton Martinez-Alier, J (1991) ‘Ecology and the poor: a neglected issue in Latin American history’, Journal of Latin American Studies, 23(3), pp621-640 Martinez-Alier J and Hershberg, E (1992) ‘Environmentalism and the poor’, Items, 46(1) March, Social Sciences Research Council, New York Martinez-Alier, J (1995) ‘Political ecology, distributional conflicts, and economic incommensurability’, New Left Review, 211 Martinez-Alier J and O’Connor, M (1996) ‘Ecological and economic distribution conflicts’ in Costanza, R, Segura, O and Martinez-Alier, J (eds) Getting down to earth: practical applications of ecological economics, ISEE, Island Press, Washington DC Martinez-Alier J and O’Connor, M (1999) ‘Distributional issues: an overview’ in Van den Bergh, J (ed). Handbook of Environmental and Resource Economics, Edward Elgar, Cheltenham, chapter 25 Martinez-Alier, J, Munda, G and O’Neill, J (1998) ‘Weak comparability of values as a foundation for ecological economics’, Ecological Economics, 26, pp277-286 Martinez-Alier, J, Munda, G and O’Neill, J (1999) ‘Commensurability and compensability in ecological economics’ in O’Connor, M and Spash, C (eds) Valuation and the environment. Theory, methods and practice. Edward Elgar, 3/2001-UHE/UAB-16/05/2001 31 Cheltenham McCully, P (1996) Silenced rivers. The ecology and politics of large dams, Zed, London McDonald, D (ed) (2000) Environmental Justice in South Africa, James Currey, London McNeill, J R (2000) Something new under the sun. An environmental history of the twentieth-century world, Norton, New York Mezger, D (1980) Copper in the world economy, Heineman, London Mikesell, R F (1988) The global copper industry, Croom Helm, London Mol, A (1995) The refinement of production: ecological modernization theory and the chemical industry, Van Arkel, Utrecht Mol, A (1997) ‘Ecological modernization: industrial transformation and environmental reform’ in Redclift, M and Woodgate, G (eds) The International Handbook of Environmental Sociology, Edward Elgar, Cheltenham Morehouse, W and Subramanian, M A (1986) The Bhopal Tragedy. What really happened and what it means for American workers and communities at risk, A preliminary report for the Citizens Commission on Bhopal, Council on International and Public Affairs, New York Moody, R (1992) The Gulliver File. Mines, people, and land: a global battleground, Minewatch-WISE-Pluto Press, London Munda, G (1995) Multicriteria evaluation in a fuzzy environment. Theory and applications in ecological economics, Physika Verlag, Heidelberg Naredo, J M and Valero, A (1999) Desarrollo economico y deterioro ecologico, Argentaria-Visor, Madrid Nimura, K (1997) The Ashio Riot of 1907. A Social History of Mining in Japan, Duke U.P., Durham and London Norgaard, R B. (1990) ‘Economic indicators of resource scarcity. A critical essay’, Journal of Environmental Economics and Management, 19, pp19-25 Novotny, P (1998) ‘Popular epidemiology and the struggle for community health in the environmental justice movement’ in Faber, D (ed) The struggle for ecological 3/2001-UHE/UAB-16/05/2001 32 democracy. The Environmental Justice movement in the United States, Guildford, New York, chapter 5 O’Connor, J (1988) ‘Introduction’, Capitalism, Nature, Socialism, 1 O’Connor, M (1993) ‘On the misadventures of capitalist nature’, Capitalism, Nature, Socialism, vol 4 (3), pp7-40 O’Connor, M (ed) (1996) ‘Ecological Distribution’, special issue of the Journal of Income Distribution, 6(2) O’Connor, M and Spash, C (eds) (1999) Valuation and the environment. Theory, methods and practice, Edward Elgar, Cheltenham O’Neill, J (1993) Ecology, policy and politics, Routledge, London Opschoor, J B (1995) ‘Ecospace and the fall and rise of throughput intensity’, Ecological Economics, 15(2), pp137-140 Painter, M and Durham, W (eds) (1995) The social causes of environmental destruction in Latin America, University of Michigan Press, Ann Arbor Parikh, J K (1995) ‘Joint Implementation and the North and South Cooperation for Climate Change’, International Environmental Affairs. A Journal for Research and Policy, 7(1), pp22-41 Peet, R and Watts, M (eds) (1996) Liberation ecologies, Routledge, London Princen, T (1999) ‘Consumption and environment: some conceptual issues’, Ecological Economics, 3, pp347-363 Pulido, L (1996) Environmentalism and economic justice: two Chicano struggles in the Southwest, University of Arizona Press, Tucson Robleto, M L and Marcelo, W (1992) Deuda ecologica, Instituto de Ecologia Politica, Santiago, Chile Rocheleau, D. et al. (eds) (1995) Feminist political ecology, Routledge, London Sachs, A (1995) Eco-justice: linking human rights and the environment, Worldwatch Inst., Washington DC Saro-Wiwa, K (1995) A month and a day: a detention diary, Penguin, London 3/2001-UHE/UAB-16/05/2001 33 Schnaiberg, A et al. (1986) Distributional conflicts in environmental resource policy, Edward Elgar, Aldershot Schwab, J (1994) Deeper shades of green: the rise of blue-collar and minority of environmentalism in America, Sierra Club Books, San Francisco Shabecoff, P (2000) Earth Rising. American Environmentalism in the 21st Century, Island Press, Washington D.C. Strong, K (1977) Ox against the Storm. A biography of Tanaka Shozo: Japan’s conservationist pioneer, Paul Norbury, Tenterden, Kent Stroup, R L (1997) ‘Superfund: the shortcut that failed’ in Anderson, T L (ed) Breaking the environmental policy gridlock, Hoover Institution Press, Stanford Szasz, A (1994) Ecopopulism: toxic waste and the movement for environmental justice, University of Minnesota Press, Minneapolis Tamanoi, Y, Tsuchida, A and Murota, T (1984) ‘Towards an entropic theory of economy and ecology - beyond the mechanistic equilibrium approach’, Economie apliquee, 37, pp279-94 Taylor, B R (ed) (1995) Ecological resistance movements. The global emergence of radical and popular environmentalism, SUNY Press, Albany Taylor, D (2000) ‘The Rise of the Environmental Justice Paradigm’, American Behavioral Scientist, 43(4) January Wapner, P (1996) Environmental activism and world civic politics, State University of New York Press, Albany Wargo, J (1996) Our Children’s Toxic Legacy. How Science and Law fail to protect us from Pesticides, Yale University Press, New Haven and London Von Weizsäcker, E, Lovins, A B and Lovins, L H (1997) Factor Four: doubling wealth, halving resource use (the new report to the Club of Rome), Earthscan, London Wenz, P (1988) Environmental Justice, State University of New York, Albany Westra, L and Wenz, P (1995) Faces of environmental racism: confronting issues of global justice, Rowman and Littlefield, Lanham MD World Resources Institute, Wuppertal Institut et al. (1997) Resources Flow: the material basis of industrial economies, World Resources Institute, Washington DC 3/2001-UHE/UAB-16/05/2001 34 
work_7xesbovpavfvlcyfvkwzlbloty	----	No Job Name E D I T O R I A L : E C O N O M I C L I B E R A L I S M A N D S O C I A L J U S T I C E ecaf_1965 2..5 John Meadowcroft and Gerard Casey Introduction Economic liberalism and social justice have a somewhat paradoxical relationship: economic liberals tend to be extremely critical of the notion of social justice, yet economic liberalism has enabled the realisation of many of the goals of those who advocate social justice. The liberal institutions of free markets, the rule of law and secure private property rights have been the most successful mechanisms for the eradication of poverty and the empowerment of individual men and women that have ever been discovered. By contrast, attempts to deliberately achieve social justice have led to the immiserisation and disempowerment of many millions of people. Social justice as an intellectual error The classical liberal or libertarian critique of social or distributive justice begins by highlighting the fact that the very idea of social or distributive justice implies a deliberate allocation of resources. It implies that someone or some group has deliberately decided what income and wealth each individual or family should receive and that outcome can then be evaluated as either just or unjust. In the words of Nozick (1974, p. 149): ‘Hearing the term “distribution”, most people presume that some thing or mechanism uses some principle or criterion to give out a supply of things’, and that, ‘Into this process of distributing shares some error may have crept’. Hence, the concept of social justice would seem to demand that a faulty distribution of resources is corrected by deliberate intervention. The error of this analysis, however, is that in a market economy, ‘we are not in the position of children who have been given portions of pie by someone who now makes last minute adjustments to rectify careless cutting’ (Nozick, 1974, p. 149). The resources that would be reallocated in the name of social justice are not manna from heaven that could be divided in any number of ways between any number of people (although if such resources really were manna from heaven then some deliberative process for fairly distributing them would surely be appropriate). In reality, the resources that exist in a market economy are holdings that particular individuals are entitled to possess as a result of their actions in the creation of wealth and the exchange of goods and services. Hence, in the memorable words of Anthony de Jasay, one of the contributors to this symposium, social or distributive justice involves ‘slicing the cake nobody baked’ (de Jasay, 2002, p. 186). For classical liberals, then, the notion of social justice is first and foremost an intellectual error – a misunderstanding of how the world works. Indeed, Hayek (1976, pp. 62–63) argued that the demand for social or distributive justice is an example of anthropomorphism, the attribution of conscious intelligence to self-ordering, spontaneous processes that are in fact beyond conscious control. Social justice contra individual liberty Not only is the notion of social justice fundamentally flawed, classical liberals argue that attempts to realise social justice inevitably infringe people’s basic rights and destroy the wealth that is to be redistributed. The incompatibility of social justice and rights, or material equality and liberty, was famously illustrated by Nozick’s (1974, pp. 160–164) account of the wealth acquired by the basketball player Wilt Chamberlain in a fictional scenario. Taking as a starting point a distribution of resources that is considered just (which can be any distribution that the reader happens to prefer), Nozick supposes that the basketball player Wilt Chamberlain signs a contract in which each spectator who watches him play pays a special fee of 25 cents directly to Chamberlain (in addition to the standard ticket price). The fans are happy to pay the extra fee – watching Chamberlain play is worth more to them than 25 cents. Economic liberalism and social justice © 2010 The Authors. Journal compilation © Institute of Economic Affairs 2010. Published by Blackwell Publishing, Oxford Supposing that one million people come through the turnstiles during the course of a season, Chamberlain acquires additional personal wealth of $250,000. As a consequence of many small and seemingly inconsequential exchanges, then, one individual has amassed a sizeable personal fortune and a new distribution of resources has emerged. Nozick (1974, pp. 161–164) argues that this new distribution of resources must be considered just because it meets the criteria of ‘justice in acquisition’ and ‘justice in transfer’. The theoretical starting point of Nozick’s example was a distribution of resources that was considered just and from that point people voluntarily transferred their justly-held resources to Chamberlain in return for a service (watching him play) that they considered more valuable than the 25 cents each paid. In neither case can an injustice be said to have occurred, therefore the outcome of the transactions described must logically be considered just. Nozick’s example of Wilt Chamberlain’s acquisition of wealth illustrates how ‘liberty upsets patterns [of distribution]’ and inevitably produces inequalities (Nozick, 1974, p. 160; see also Hayek, 1960, p. 85). Where people are allowed to make free choices as to how they use their resources, deviations from any preferred pattern of distribution will inevitably arise. Any attempt to achieve a ‘just’ distribution of income and wealth must encounter the problem that countless transactions like those engaged in by Chamberlain and the basketball fans will take place and upset the ‘just’ distribution. Hence, the only way for social justice to be achieved is to forbid what Nozick calls ‘capitalist acts between consenting adults’ (Nozick, 1974, p. 163). In other words, social or distributive justice can only be attained where people are forbidden from producing and consuming, buying and selling, as they wish. For this reason, social justice and the basic rights inherent to a free society are judged to be incompatible. Social justice contra wealth creation Attempts to create a ‘just’ distribution of resources not only infringe people’s liberties, they also destroy the wealth that is to be deliberately distributed. Redistributing resources from those who engage in productive activity to those who do not engage in productive activity removes the incentives to wealth creation and the efficient use of resources. As Buchanan (1997, p. 360) has written, ‘Persons will care for, maintain and direct the use of productive resources properly only if there is a reciprocal relationship between effort expended and reward anticipated’. Actions that distort the relationship between effort and reward remove the incentive to undertake such efforts that might bring individual reward and contribute value to the wider society. Furthermore, the deliberate redistribution of resources distorts the information that is communicated by price signals in a market economy. As has been set out many times (for example Hayek, 1948; Mises, 1951), in a market economy prices provide knowledge of the relative costs and benefits of different courses of action. Without market prices it is impossible to arrive at an accurate relative valuation of the many millions of different goods and services that may be provided, and the many millions of different factors of production that may be used to create those goods and services. Such a monumental feat is beyond the comprehension of any single mind, group of minds working together, or even a super-computer, because the relevant knowledge is not only highly complex but is also inherently subjective, dispersed throughout the economy and frequently tacit. When prices are distorted by the deliberate allocation of income and wealth to particular individuals or groups, prices no longer correspond to people’s relative valuations of different goods and services and this prevents price signals from performing this essential co-ordinating function. Consequently, an economy in which price signals bear little relation to the relative values that people attach to different goods and services will be unable to efficiently allocate resources between different uses and over time the population will become relatively impoverished (Hayek, 1976, Ch. 3; Meadowcroft, 2005, Chs. 2 and 3). These are the underlying reasons why socialist and social democratic economies tend to be less efficient than market economies and therefore why attempts to achieve social justice tend to impoverish and disempower the very people such policies are intended to help. Hence, if our aim is to ameliorate poverty and empower the least advantaged then a market economy is the most effective mechanism for so doing. Social justice and economic liberalism These are the issues engaged with by the authors of the articles in this symposium. In the first article, Anthony de Jasay addresses the theoretical foundations of liberal justice and its corruption by supposedly liberal thinkers. Jasay draws a distinction between rules that emerge spontaneously because they are to people’s mutual advantage and laws that are deliberately imposed on society by those with political authority. Liberal justice is rooted in this first system of conventions that are ascertainable facts of history and anthropology, rather than government-made laws that by definition must have dubious lineage and therefore questionable legitimacy. Unfortunately, Jasay argues, this liberal order of rules and conventions has been undermined by many of its principal defenders. In particular, Jasay argues that Mill’s (1859) harm principle, Rawls’ theory of justice (1971) and Locke’s theory of property (1689) have all opened the way for the enemies of liberty to undermine the theoretical foundations of genuinely liberal justice, so that today people are deemed to be free to act only if their actions can be shown not to harm others (and almost any act can be judged to harm others), only if their actions can be shown to be within their explicitly stated rights (and such rights have been rendered meaningless by the extension of the notion of rights to include all manner of entitlements) and only if they utilise property the acquisition of which can be shown to have left enough and as good for others (and where resources are finite an individual’s possession of property can never leave enough and as good for others). Jasay argues that the institutionalisation of these erroneous ‘liberal’ ideas of justice in the modern democratic state centred upon government-made law has led to the emasculation of individual liberty in contemporary societies: there are almost 3iea e c o n o m i c a f f a i r s m a r c h 2 0 1 0 © 2010 The Authors. Journal compilation © Institute of Economic Affairs 2010. Published by Blackwell Publishing, Oxford no limits to the scope of collective choice and no means for the individual to protect their own private space from invasion by the state. Nevertheless, Jasay does offer some hope for a revival of liberal justice based upon conventions and rules given that contemporary democratic states were founded upon such rules and conventions; a restoration of freedom may still be possible if we are able to dig back to these foundations. Any liberal theory of justice that aspires to be comprehensive must engage with the question of restitution. Where it can be shown that property has been acquired illegitimately, perhaps over many generations, or many generations ago, then the long-term economic consequences of such wrongs must be addressed if the distribution of income and wealth in a given society is to be considered just. This is the challenge addressed by Karol Boudreaux of the Mercatus Center at George Mason University in her contribution to this symposium. Boudreaux’s article analyses restitution and economic liberalism in South Africa, a country with a long history of legislation that discriminated against the black majority of the population. Boudreaux examines the empirical example of the land reform legislation introduced in South Africa after the transition from apartheid in 1994. This legislation was in part a response to calls for greater social justice. Boudreaux cites evidence that suggests that the land reform legislation has had little impact in righting the wrongs of the past, largely because only the wealthy and well-connected have the necessary resources (broadly defined) to navigate the judicial process. By contrast, the operation of market forces has had a much more dramatic impact, leading to the diversification of land ownership patterns, encouraging economic growth and promoting rural economic development. As has been the experience in other places and at other times, it is market mechanisms, not government diktat, that are able to realise the goals of widespread empowerment and poverty alleviation. In the third article of the symposium, Thomas E. Woods Jr. of the Ludwig von Mises Institute focuses on two misconceptions that he believes have added significantly to the confusion surrounding the relationship of economics and morality. Advocates of social justice often take economics to task for failing to give ethics free play in their discipline. Moreover, it is often implied that by following their prescriptions, we could bring about a world in which there need not to be any trade-offs between various human demands, claiming, in effect, that we could have a world without scarcity. Woods argues that the first misconception involves a serious theoretical misunderstanding of the relation between the various sciences. Economics as a science, which is the study of the market and its operations, has no moral dimension, anymore than chemistry or physics as sciences have moral dimensions. This is not to say, as social justice proponents often appear to claim, that such a view of economics commits us to the thesis that the marketplace has no moral dimension. Of course it does. But the marketplace is one thing; the scientific study of the marketplace is another. The second misconception arises, Woods contends, from a failure on the part of some social justice advocates to grasp the fundamental economic point that we live in a world where scarcity is the norm. Even should every other resource be freely available, as mortal beings our time is an inherently scarce resource. An increase in the overall wealth of society, however desirable that may be, cannot be achieved just by wishing for it. The world doesn’t operate according to the laws of magic, and real wealth is a product of work applied to natural resources in the most productive manner. Sometimes, the proponents of social justice give the impression that all manner of things would be well if only we had a just system of distribution. But this is an example of the Garden-of-Eden fallacy which regards the world as a paradise in which all that we need or want is freely available. The burden of William Luckey’s article is to provide some suggestions for the construction of an authentic and authoritative body of Catholic doctrine on social and economic matters. He begins by criticising a certain approach to Church and Papal documents which is both selective and textually naïve and, more significantly, which attributes an authoritative status to those documents that they do not, as a whole, possess. Luckey is also critical of the attempt to collect and thematise the Social Teaching of the Church, as exemplified by the compilation of the Compendium of the Social Doctrine of the Church. As he points out, social teachings are not, just as such, a matter of the discernment of Revelation, but a prudential matter of applying ethical principles to concrete social and economic questions. While Catholics accept that the Church has authority in matters of faith and morals, it doesn’t follow from this that its prudential judgments are similarly authoritative nor, indeed, that the Church has any particular competence in technical or scientific matters. The elements of authentic Catholic social teaching should be based upon foundational Catholic moral theology and an adequate philosophical anthropology. Without a proper understanding of the human person, no social teaching can be developed. Man is a creature possessing reason and free will, albeit that his intellect is darkened and his will weakened. Human freedom has as its consequence the acceptance by man of his responsibility for his choices, including his economic choices and while respecting man’s freedom, the Church has a duty to give him moral guidance. Luckey contends that the implications of the Second Vatican Council’s Decree on Religious Freedom, Dignitatis Humanae, have not yet been adequately analysed and that this can be extended theologically to defend a free economy. Luckey concludes with a brief analysis of the latest Social Encyclical, Benedict XVI’s Caritas in Veritate, and claims that Pope Benedict’s thinking on these matters can be traced to a latter-day defender of the Romantic School of Economics. The final article in this symposium by Elaine Sternberg examines a recent argument for redistribution in the name of social justice. This argument, set out by Gar Alperovitz and Lew Daly in their recent book Unjust Deserts (2008), claims that since innovation depends far more on accumulated knowledge than on any single individual’s contribution, most of the resulting wealth is deserved equally by all members of society. It is an argument that implicitly invokes Nozick’s entitlement theory of justice but argues that because wealth creation depends in some sense on the contributions of 4 e c o n o m i c l i b e r a l i s m a n d s o c i a l j u s t i c e © 2010 The Authors. Journal compilation © Institute of Economic Affairs 2010. Published by Blackwell Publishing, Oxford countless people over untraceable time to the accumulated store of knowledge from which innovators then draw, such innovators cannot claim an entitlement to the wealth that is thereby created. In her article, Sternberg sets out Alperovitz’s and Daly’s argument and then exposes its fallacies and errors. First, Sternberg argues, Alperovitz and Daly apply the concept of distributive justice to a realm where such a concept does not logically apply. As noted above in this introduction, the distribution of income and wealth that exists in a market economy is not the result of a deliberate allocation by a central planner but is the result of the spontaneous operation of economic forces and hence cannot be properly considered either just or unjust. Second, Sternberg shows that Alperovitz’s and Daly’s claim that people have no right to that (for example, wealth) which they have not deliberately created is an unsubstantiated and ultimately dangerous claim which logically gives individuals no right over their own bodies (which they have not deliberately created) as well as their income and wealth. Third, Sternberg shows that Alperovitz and Daly have failed to properly take into account the role of individual freedom, individual achievement and free markets in the process of wealth creation that has benefited mankind during the last two centuries. Conclusion The articles in this symposium show that the outcomes produced by a free-market economy cannot logically be considered just or unjust, in the same way that the operation of any natural forces, such as weather patterns or the spread of a virus, are similarly neither just nor unjust. Rather, justice can only ever be procedural, concerning the neutral application of rules and/or conventions that establish the rule of law and protect private property rights (including people’s right to a property in their own person). Paradoxically, perhaps, it is nevertheless the operation of free markets within the context of the rule of law and the protection of private property rights that create the conditions for wealth creation on a societal scale that enables the alleviation of poverty and the empowerment of the poorest members of society. In this way, the goals of those who advocate social justice are more likely to be achieved via the free market than via any deliberate intervention. References Alperovitz, G. and L. Daly (2008) Unjust Deserts: How the Rich Are Taking Our Common Inheritance and Why We Should Take It Back; Wealth and Inequality in the Knowledge Economy, New York: The New Press. Buchanan, J. M. (1997 [2001]) ‘Reform without Romance: First Principles in Political Economy’, in Volume 19 of the Collected Works of James Buchanan: Ideas, Persons, and Events, Indianapolis: Liberty Fund. Hayek, F. A. (1948) ‘The Use of Knowledge in Society’, in Individualism and Economic Order, Chicago: University of Chicago Press. Hayek, F. A. (1960) The Constitution of Liberty, London: Routledge. Hayek, F. A. (1976) The Mirage of Social Justice, London: Routledge. Jasay, A. de (2002) Justice and Its Surroundings, Indianapolis: Liberty Fund. Locke, J. (1689 [1993]) Two Treatises on Government, Cambridge: Cambridge University Press. Meadowcroft, J. (2005) The Ethics of the Market, Basingstoke: Palgrave. Mill, J. S. (1859 [1985]) On Liberty, London: Penguin Classics. Mises, L. von (1951 [1981]) Socialism, trans. J., Kahane, Indianapolis: Liberty Fund. Nozick, R. (1974) Anarchy, State, and Utopia, Oxford: Blackwell. Rawls, J. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press. John Meadowcroft is a Lecturer in Public Policy at King’s College London (john.meadowcroft@kcl.ac.uk). Gerard Casey is Associate Professor of Philosophy at University College Dublin (gerard.casey@ucd.ie). 5iea e c o n o m i c a f f a i r s m a r c h 2 0 1 0 © 2010 The Authors. Journal compilation © Institute of Economic Affairs 2010. Published by Blackwell Publishing, Oxford 
work_7y6s67igvrbxjigaelfsgvkqfq	----	COVID-19 and justice J Med Ethics October 2020 Vol 46 No 10 639 COVID-19 and justice John McMillan, Editor in Chief John Rawls begins a Theory of Justice with the observation that 'Justice is the first virtue of social institutions, as truth is of systems of thought… Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override'1 (p.3). The COVID-19 pandemic has resulted in lock- downs, the restriction of liberties, debate about the right to refuse medical treatment and many other changes to the everyday behaviour of persons. The justice issues it raises are diverse, profound and will demand our attention for some time. How we can respect the Rawlsian commit- ment to the inviolability of each person, when the welfare of societies as a whole is under threat goes to the heart of some of the difficult ethical issues we face and are discussed in this issue of the Journal of Medical Ethics. The debate about ICU triage and COVID-19 is quite well developed and this journal has published several articles that explore aspects of this issue and how different places approach it.2–5 Newdick et al add to the legal analysis of triage deci- sions and criticise the calls for respecting a narrow conception of a legal right to treatment and more detailed national guidelines for how triage decisions should be made.6 They consider scoring systems for clin- ical frailty, organ failure assessment, and raise some doubts about the fairness of their application to COVID-19 triage situ- ations. Their argument seems to highlight instances of what is called the McNamara fallacy. US Secretary of Defense Robert McNamara used enemy body counts as a measure of military success during the Vietnam war. So, the fallacy occurs when we rely solely on considerations that appear to be quantifiable, to the neglect of vital qualitative, difficult to measure or contestable features.6 Newdick et al point to variation in assessment, subtlety in condition and other factors as reasons why it is misleading to present scoring systems as ‘objective’ tests for triage. In doing so they draw a distinction between procedural and outcome consistency, which is important, and hints at distinc- tions Rawls drew between the different forms of procedural fairness. While we might hope to come up with a triage protocol that is procedurally fair and arrives at a fair outcome (what Rawls calls perfect procedural justice, p. 85) there is little prospect of that. As they observe, reasonable people can disagree about the outcomes we should aim for in allo- cating health resources and ICU triage for COVID-19 is no exception. Instead, we should work toward a transparent and fair process, what Rawls would describe as imperfect procedural justice (p. 85). His example of this is a criminal trial where we adopt processes that we have reason to believe are our best chance of determining guilt, but which do not guarantee the truth of a verdict, and this is a reason why they must be transparent and consistent (p. 85). Their proposal is to triage patients into three broad categories: high, medium and low priority, with the thought that a range of considerations could feed into that evaluation by an appropriately constituted clinical group. Ballantyne et al question another issue that is central to the debate about COVID-19 triage.4 They describe how utility measures such as QALYs, lives saved seem to be in tension with equity. Their central point is that ICU for COVID-19 can be futile, and that is a reason for questioning how much weight should be given to equality of access to ICU for COVID-19. They claim that there is little point admitting someone to ICU when ICU is not in their best interests. Instead, the scope of equity should encom- pass preventing 'remediable differences among social, economic demographic or geographic groups' and for COVID-19 that means looking beyond access to ICU. Their central argument can be summarised as follows. 1. Maximising utility can entrench exist- ing health inequalities. 2. The majority of those ventilated for COVID-19 in ICU will die. 3. Admitting frailer or comorbid patients to ICU is likely to do more harm than good to these groups. 4. Therefore, better access to ICU is un- likely to promote health equity for these groups. 5. Equity for those with health inequal- ities related to COVID-19 should broadened to include all the services a system might provide. Brown et al argue in favour of COVID-19 immunity passports and the following summarises one of the key argu- ments in their article.7 1. COVID-19 immunity passports are a way of demonstrating low personal and social risk. 2. Those who are at low personal risk and low social risk from COVID-19 should be permitted more freedoms. 3. Permitting those with immunity pass- ports greater freedoms discriminates against those who do not have pass- ports. 4. Low personal and social risk and pre- serving health system capacity are rel- evant reasons to discriminate between those who have immunity and those who do not. Brown et al then consider a number of potential problems with immunity pass- ports, many of which are justice issues. Resentment by those who do not hold an immunity passport along with a loss of social cohesion, which is vital for responding to COVID-19, are possible downsides. There is also the potential to advantage those who are immune, economically, and it could perpetuate existing inequalities. A significant objection, which is a problem for the justice of many policies, is free riding. Some might create fraudulent immunity passports and it might even incentivise intentional exposure to the virus. Brown et al suggest that disin- centives and punishment are potential solu- tions and they are in good company as the Rawlsian solution to free riding is for 'law and government to correct the necessary corrections.' (p. 268) Elves and Herring focus on a set of ethical principles intended to guide those making policy and individual level deci- sions about adult social care delivery impacted by the pandemic.8 They criticize the British government’s framework for being silent about what to do in the face of conflict between principles. They suggest the dominant values in the framework are based on autonomy and individualism and argue that there are good reasons for not making autonomy paramount in policy about COVID-19. These include that infor- mation about COVID-19 is incomplete, so no one can be that informed on decisions about their health. The second is one that highlights the importance of viewing our present ethical challenges via the lens of justice or other ethical concepts such as community or solidarity that enable us to Concise argument doi:10.1136/medethics-2020-106877 o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /m e d e th ics-2 0 2 0 -1 0 6 8 7 7 o n 2 3 S e p te m b e r 2 0 2 0 . D o w n lo a d e d fro m http://jme.bmj.com http://www.instituteofmedicalethics.org http://crossmark.crossref.org/dialog/?doi=10.1136/medethics-2020-106877&domain=pdf&date_stamp=2020-09-15 http://jme.bmj.com/ 640 J Med Ethics October 2020 Vol 46 No 10 Concise argument frame collective obligations and interests. They observe that COVID-19 has demon- strated how health and how we live our lives are linked: that what an individual does can have profound impact on the health of many others. Their view is that appeals to self- determination ring hollow for COVID-19 and their proposed remedy is one that pushes us to reflect on what the liberal commitment to the inviolability of each person means. They explain Dworkin’s account of 'associative obligations' which occur within a group when they acknowl- edge special rights and responsibilities to each other. These obligations are a way of giving weight to community considerations, without collapsing into full- blown utilitari- anism and while still respecting the inviola- bility of persons. The COVID-19 pandemic is pushing ethical deliberation in new directions and many of them turn on approaching medical ethics with a greater emphasis on justice and related ethical concepts. Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not- for- profit sectors. Competing interests None declared. Patient consent for publication Not required. Provenance and peer review Commissioned; internally peer reviewed. This article is made freely available for use in accordance with BMJ’s website terms and conditions for the duration of the covid-19 pandemic or until otherwise determined by BMJ. You may use, download and print the article for any lawful, non- commercial purpose (including text and data mining) provided that all copyright notices and trade marks are retained. © Author(s) (or their employer(s)) 2020. No commercial re- use. See rights and permissions. Published by BMJ. REFERENCES 1 Rawls J. A theory of justice. Oxford University Press: Oxford, 1972. 2 Solnica A, Barski L, Jotkowitz A. Allocation of scarce resources during the COVID-19 pandemic: a Jewish ethical perspective. J Med Ethics 2020;46(7):444–6. 3 Herreros B, Gella P, Real de Asua D. Triage during the COVID-19 epidemic in Spain: better and worse ethical arguments. J Med Ethics 2020;46(7):455–8. 4 Ballantyne A, Rogers WA, Entwistle V, et al. Revisiting the equity debate in COVID-19: ICU is no panacea. J Med Ethics 2020;46:641–5. 5 Liddell K, Skopek JM, Palmer S, et al. Who gets the ventilator? Important legal rights in a pandemic. J Med Ethics 2020;46(7):421–6. 6 O’Mahony S. Medicine and the McNamara fallacy. J R Coll Physicians Edinb 2018;47(3):281–7. 7 Brown RCH, Savulescu J, Williams B, et al. Passport to freedom? immunity passports for COVID-19. J Med Ethics 2020;46:652–9. 8 Elves CB, Herring J. Ethical framework for adult social care in COVID-19. J Med Ethics 2020;46:662–7. o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /m e d e th ics-2 0 2 0 -1 0 6 8 7 7 o n 2 3 S e p te m b e r 2 0 2 0 . D o w n lo a d e d fro m http://dx.doi.org/10.1136/medethics-2020-106242 http://dx.doi.org/10.1136/medethics-2020-106352 http://dx.doi.org/10.1136/medethics-2020-106460 http://dx.doi.org/10.1136/medethics-2020-106460 http://dx.doi.org/10.1136/medethics-2020-106332 http://dx.doi.org/10.1136/medethics-2020-106332 http://dx.doi.org/10.4997/JRCPE.2017.315 http://dx.doi.org/10.4997/JRCPE.2017.315 http://dx.doi.org/10.1136/medethics-2020-106365 http://dx.doi.org/10.1136/medethics-2020-106365 http://dx.doi.org/10.1136/medethics-2020-106513 http://jme.bmj.com/ COVID-19 and justice References 
work_a3zlvs7akjd3lh5y6ddmkftmpm	----	&#x201D;Social justice in a changing world&#x201C; Conference at the Graduate School of Social Sciences, University of Bremen, March 10&#x2013;12, 2005 alle Interessenten, bis zum 08. Oktober 2004 Vorschläge für eigene Beiträge einzureichen. Die einseitigen Abstracts sollten per Mail an Jörg Hagenah hagenah@wiso.uni-koeln.de ge- schickt werden. Dabei können Vorschläge zu fol- genden Themenschwerpunkten eingereicht wer- den: Bedeutung der Media-Analyse: Potenziale für wissenschaftliche Sekundäranalysen; Medien- nutzung im Wandel der Zeit; Spezifische Formen der Mediennutzung; Sozialer Wandel und Ent- wicklungen des Konsum-/Freizeitverhaltens; Me- thodische Aspekte bei Sekundäranalysen. Geplant ist zudem ein offener Themenblock. Außerdem können Personen, die einen schnellen, intensiven Einblick in die Potenziale von Sekun- däranalysen mit den ma-Daten gewinnen wollen, als Zuhörer am Workshop teilnehmen. Der Ausrichter der Veranstaltung ist das Me- dienwissenschaftliche Lehr- und Forschungszen- trum der Wirtschafts- und Sozialwissenschaftli- chen Fakultät der Universität zu Köln. Veranstal- ter ist der Geschäftsführende Direktor des Zen- trums Prof. Dr. Heiner Meulemann mit seinen Mitarbeitern Dr. Jörg Hagenah und Haluk Akinci. Ausführlichere und aktualisierte Informatio- nen zum Workshop sind auf der Homepage des MLFZ zu finden: „http://www.wiso.uni-koeln.de/medien/“. ∗ “Social Justice in a Changing World” Conference at the Graduate School of Social Sciences, University of Bremen, March 10–12, 2005 A growing number of experts in economics, po- litical science and sociology believe that the free- dom of action of the nation-state in coping with issues of distributive justice is waning. Current processes of economic privatisation and globaliza- tion shift power over distribution from the state toward ‘capital’ and markets. What are the impli- cations for social justice? The conference will ex- plore the risks and options of privatised markets and transnational regimes for social justice on different levels. On the individual level, we expe- rience an increasing mismatch of individual life course risks like unemployment, poverty or mari- tal separation and state protection, and the emer- gence of new forms of social inequality. In this conference, we may address the distributional outcomes and developments of different social groups. Who are the winners and losers in times of globalization? What kind of social justice do people expect? On the domestic level, we witness the disintegration of the collective bargaining process, the scaling back of social insurance and the resulting bourgeoning of mixed and private forms of social provision. Does distributive jus- tice continue to be a central goal of welfare state activity? What could be the features of a new so- cial contract? On the international level, trade is the main area in which regulatory processes oc- cur. Transnational regimes increasingly constrain the environmental, agricultural, health and food safety rules of democratic constitutional states, and thus affect the fundamental welfare of citi- zens. How can social rights and distributive jus- tice be guaranteed in the international legal framework? What role do non-governmental ac- tors play in the regulatory processes? Can the rec- ognition of social rights open avenues towards ensuring the legitimacy of transnational gover- nance? The conference will consist of plenary ses- sions as well as of thematic panels for which we invite abstract submissions. The abstract deadline is November 30, 2004. The conference venue will be the Atlantic Hotel Bremen close to the campus of the University of Bremen. For more information on registration, panels, accommoda- tion etc. please visit the conference website: “www.gsss.uni-bremen.de/socialjustice”. ∗ „Medien – Identität – Identifikationen“ Tagung der Sektion Jugendsoziologie und der Sektion Medien- und Kommunikationssoziologie der DGS vom 25.–26.2.2005 an der Hochschule für Film und Fernsehen Potsdam-Babelsberg Die Aufgabe der Identitätsausbildung erfolgt im Wesentlichen durch die aktive, reflektierte Aus- einandersetzung des Individuums mit gesell- schaftlichen Erwartungen, kulturellen Kontexten und Traditionen. Dringlich ist die Identitätsar- beit insbesondere in der sensiblen Phase der Ado- leszenz. Ging man früher davon aus, dass sich Identität primär in personalen Interaktionen ent- wickelt, muss man zu Beginn des 21. Jahrhun- derts mediale Interaktionen einbeziehen. Den Medien kann geradezu eine „Schlüsselrolle in der Strukturierung von zeitgenössischer Identität“ (Douglas Kellner) attestiert werden. Die Beschäf- tigung mit dem Anderen und sich selbst findet nicht nur in interpersonalen Kontexten und in 602 Nachrichten und Mitteilungen 
work_a4g4x555wfe5xgkxfqw45k52oa	----	pme02659_prn 330..333 Preventive Medicine 49 (2009) 330–333 Contents lists available at ScienceDirect Preventive Medicine journal homepage: www.elsevier.com/locate/ypmed Commentary “Pushing” physical activity, and justice Robert García a, America Bracho b, Patricia Cantero b, Beth A. Glenn c,⁎ a The City Project, Los Angeles, CA, USA b Latino Health Access, 1701 N. Main Street, Suite 200, Santa Ana, CA, USA c School of Public Health, and Jonsson Comprehensive Cancer Center, University of California, Los Angeles, 650 Charles Young Dr. South, Room A2-125, CHS, Los Angeles, CA 90095-6900, USA 0091-7435/$ – see front matter © 2009 Elsevier Inc. A doi:10.1016/j.ypmed.2009.07.016 ⁎ Corresponding author. Fax: +1 310 206 3566. E-mail address: bglenn@ucla.edu (B.A. Glenn). a b s t r a c t Objective. There has been an increasing realization of the need for environmental interventions to a r t i c l e i n f o Available online 29 July 2009 Keywords: Physical activity Obesity Fitness Racial or ethnic minority African American Black Latino Hispanic Disparities Civil rights Justice Built environment Education Law increase physical activity levels in the population. Although promising, the impact of these strategies in reducing obesity-related disparities will be limited by the presence of inequities in the distribution of activity-related resources in the community. Advocacy efforts are critically needed to ensure that all communities benefit from environmental strategies being implemented. Method and results. This paper describes two activist community-based organizations in Southern California, The City Project and Latino Health Access, and their successful efforts to mandate equitable access to public resources critical for reducing obesity-related disparities. Conclusion. Principles for equitable development of public land are also presented as well as lessons learned that can inform future advocacy efforts. © 2009 Elsevier Inc. All rights reserved. Introduction Increasing the availability of safe-space for physical activity (Babey et al., 2008), opportunities to engage in physical activity during the school day (Cawley et al., 2007), and access to and use of public trans- portation (Lachapelle and Frank, 2009) are environmental strategies that have been found to be related to increased physical activity levels. Low-income, ethnic minority families are less likely to have access to parks or other space for physical activity (Estabrooks et al., 2003), less likely to engage in physical activity during leisure time (Brown et al., 2005) and are more dependent on public transportation (Mather, 2009).Evidence isaccumulatingthat promotingmass transit use may be a promising strategy to increase physical activity levels (Lachapelle and Frank, 2009). However, low-income and minority communities, those most likely to need public transit and who may be more likely to benefit from its use from a physical activity standpoint often have poorest access to these resources. Thus, these environmental change approaches hold the promise of being particularly beneficial for socioeconomically marginalized groups. Therefore, we propose that efforts should be made to mandate the equitable distribution of public resources that will ultimately increase physical activity levels in the population. The purpose of this article is to propose steps that may be neces- sary to bring about population-wide increases in physical activity ll rights reserved. level and ultimately to reduce obesity-related disparities. California, the only “majority minority” state in the continental U.S. and a leader in health promotion, is host to a number of activist community-based organizations engaged in grassroots advocacy. Case studies of two such agencies, The City Project and Latino Health Access, are included to illustrate how these organizations have spearheaded efforts to mandate equitable access to public resources critical for reducing obesity-related disparities. Finally, we put forth principles of equitable development to guide others in their efforts to advocate for the health of their respective communities. Steps in public health advocacy First, there is a need to bring people together through coalition building and a shared vision based on diverse values. Grassroots engagement is a necessity, and may require the development of coalitions with broad agendas and working across multiple issues as has been noted by others (Tajik and Minkler, 2007). The composition and nature of the coalition that are likely to be successful will depend on the timeline for achieving the goal, characteristics of the affected community and the health topic of concern among other factors. Second, sophisticated analytic approaches and broad frameworks are needed when conducting research to understand the relationship between obesity and its multiple environmental determinants including the implications of laws and public policies as well as the built environment (Sacks et al., 2009). Health Impact Assessments can 331R. García et al. / Preventive Medicine 49 (2009) 330–333 be valuable tools in assessing both the intentional and unintentional effects of public policies and programs (Dannenberg et al., 2008). Community-based participatory research (CPBR) approaches should be used to ensure that results are meaningful to the community and provide the foundation for future advocacy efforts (Tajik and Minkler, 2007). CBPR methods can be used to systematically study the process of advocacy (e.g., assessing quality and nature of partnerships and coalitions) as well as the outcomes of advocacy efforts (e.g., im- provements in perceived and objective health). Evaluation of health outcomes is particularly important in ensuring that programs and policies that improve health are sustained. Third, strategic media campaigns can focus attention on the need for systemic change and increase your likelihood of success (Tajik and Minkler, 2007). Taking advantage of traditional media and new social media (including GIS mapping, blogs, flickr, YouTube, and podcasts) can lead to increased visibility and support for your cause. Fourth, taking advantage of available policy and legal advocacy resources outside the courts may be effective in persuading public officials to take action. For example, the Robert Wood Johnson Foundation-funded National Policy and Legal Action Network (NPLAN) provides legal and policy analyses as a national resource to policymakers and advocacy groups seeking to change physical activity and nutrition environments to address childhood obesity. Finally, access to justice through the courts is available as a last resort if all else fails in the context of an overall campaign (García and White, 2006). Lessons learned from tobacco litigation in the U.S. may have application to other areas, and indeed, many grassroots advocates “cut their teeth” on public health tobacco control efforts. The following case studies illustrate efforts undertaken by The City Project and Latino Health Access to ensure equitable access to public resources relevant to physical activity in Southern California. Case studies The City Project The City Project, located in Los Angeles, California, is a non-profit policy and legal problem solving organization whose work includes specific strategies to build healthy, livable communities for all, and principles for equitable development to achieve systemic change and real choice. In Los Angeles County, children of color and those living in poverty have the highest levels of obesity. These children also have the least access to parks, to schools with at least 5 acres of playing field, and to mass transit (García and White, 2006). Thus, the City Project has engaged in a number of initiatives that have laid the groundwork for reducing obesity disparities in the county and throughout California. Creation of safe-space for physical activity Activists and attorneys worked with the community through policy and legal advocacy to help create the forty-acre Rio de Los Angeles State Park on a former rail yard in one of the most park- starved communities in the region and stop a commercial project there. This is part of a broader campaign in what is now known as the Urban Park Movement to revitalize the 52-mile Los Angeles River (which was lined with concrete as flood control measure in the 1930s) with parks, schools, affordable housing, local green jobs, and multi-use green spaces that help clean the air and water and promote climate justice. The parks and school fields should provide places for physical activity to alleviate obesity and promote physical and mental health of the people (García and White, 2006). Ensuring opportunities for PA during school for low-income and minority children More than half of the public school districts in California do not enforce physical education requirements (California Center for Public Health Advocacy, 2006). In response, The City Project is working with the United Teachers of Los Angeles (the teachers' union) and others to enforce the physical education laws in the Los Angeles Unified School District, the second largest in the nation with more than 700,000 students—91% are children of color and 74% are low income. The teachers' union launched a physical education campaign to build public support among teachers, parents, students and the public. The City Project filed an administrative (Williams) complaint under civil rights and education laws. The board of education passed a resolu- tion to enforce the physical education and civil rights laws. Teachers, lawyers, and school officials are working together to draft a far- reaching plan to implement the resolution, enforce the law, and resolve the complaint. Each of these elements is based, in part, on evidence from studies investigating public school physical education inequities commissioned by The California Endowment (García and Fenwick, 2009). Increasing access to public transportation In 1994, lawyers and organizers working together filed a historic civil rights and environmental justice lawsuit against the Los Angeles County Metropolitan Transportation Agency (MTA) on the grounds that it operated separate and unequal bus and rail systems that discriminated against the working poor with little or no access to a car. MTA agreed to settle the case in 1996 and invested over $2 billion to improve transit throughout the county and keep fares low over the next ten years (García and Rubin, 2004). Latino Health Access Latino Health Access (LHA) is a non-profit public health organiza- tion founded in 1993. It assists in improving the quality of life of underserved Latino residents in Orange County, California. The majority of the services (66%) are provided to residents of Santa Ana, one of the poorest and densest cities in the state. LHA was one of the early innovators in the development of the Promotor (Community Health Worker) model of community outreach and health education. One of the focuses of LHA's work is creating an environmental change to support responsible personal and family food choices and physical activity participation. For example, as one of six Healthy Eating Active Communities sites in California, LHA engages the community, city officials, the Orange County Health Care Agency, and the Santa Ana Unified School District in discussions on wellness policies, often involving their youth Promotores in door-to-door outreach, hosting town hall meetings and forums, and testifying before school boards and city councils. LHA has been focused, for the past six years, on addressing the inequity in park distribution in Santa Ana. They partnered with Trust for Public Land to conduct a feasibility study demonstrating that Santa Ana has roughly 1 acre of park land per 1120 residents compared with 7.9 acres per 1000 residents for other large California communities (Fig. 1). As shown in Fig. 1, the darkest areas on the map surrounding the 92701 zip code represent the highest park poor area in Santa Ana with only 0.5 acres of land per 1000 residents (Trust for Public Land, 2005). They organized residents to identify a vacant lot central to the 92701 zip code. The identified parcels had three owners, the city, a community redevelopment agency and a private market. Advocacy efforts included: (1) prominent media engagement—an exposé feature article in La Opinión, a leading Spanish-speaking newspaper; (2) collecting and disseminating local surveillance data, where the overweight rate was 85% among children and youth living in a large condominium complex adjacent to the park construction site; and (3) leveraging resources—space for health promotion activities at the condominium complex home to an estimated 1000 residents. The market donated and transferred the ownership of their parcel to LHA at no cost. LHA negotiated a 40-year leasing agreement with the city 4 th St F a ir v ie w R d 1st St Chapm an Ave E l l i s A ve Ja m bo r e e R d 1st St B ri st o l S t M ain St T u st in S t B r i st o l S t M ichelson D r T h e C it y D r Gar den Gr ove Blvd H a rv ar d A ve La V eta Ave G ra n d A v e F a ir v ie w S t M a i n S t 1st St F a ir v ie w S t Talber t Ave San t a An a Blv d Bar r anca Pky M acar thur Blvd T u st in A v e H a rb o r B lv d 17th St G r a n d A v e Alton Pky Adam s Ave G ra n d A v e H a rb o r B lv d M acar thur Blvd F a ir v ie w S t 1st St Euclid S t E u cl id S t T o w n A nd Cou ntr y Rd D yer R d G la ss e l l S t R ed H i l l Ave W ar ner Ave M em or y Ln Chapm an Ave Baker St Edinger A ve 5th St H a rb o r B lv d M ac ar th u r B lv d W estm i n ster Ave B ri st o l S t W ar n er Ave W ar n er Ave Edi n ger Ave 17th St M a in S t P a rk e r S t 55 22 55 55 57 73 5 405 Colonel W.C. Eldridge Park Friendship Park Jerome Mabury Park Birch Park Logan ParkFrench Park Angels Park Sasser Park Prentice Park Windsor Park Edna park Centennial Regional Santa Ana Memorial Madison Park Delhi Park Adams Park Campesino Park Spurgeon Park El Salvador Park Lowell Park Heritage Park Santa Anita Park Bomo Koral Park Sandpointe Park Carl Thorton Park Lillie King Park River View Park Griset Park Santiago Park Sarah May Downie Fisher Park Portola Park Cabrillo Park Rosita Park Morrison Park Park Deficit Analysis Special thanks to the following data providers: Thomas Brothers, ESRI, and the CA Department of Education Map created by The Trust for Public Land on October 3, 2006 Created in ESRI ArcMap 9.1® Map Projection: NAD 1983 State Plane California VI FIPS 0406 Feet TPL, Trust for Public Land, and The Trust for Public Land logo are trademarks of The Trust for Public Land. Copyright © 2006 The Trust for Public Land. www.tpl.org Information on this map is provided for purposes of discussion and visualization only. Legend Number of Park Acres per 1,000 Kids 0.195 - 1.000 1.001 - 3.000 3.001 - 5.000 5.001 - 7.000 7.001 - 9.121 City of Santa Ana Parks and Open Space Waterbodies Transportation Interstate Highway Major Road Local Road Railroads This map shows the results of The Trust for Public Land’s Park Deficit Model. The park deficit model calculates how many acres of park or open space exist per 1,000 children under the age of 18 within city council districts. It then identifies those districts where there is an insufficient amount of parkland. Santa Ana, California 0 0.5 10.25 Mile Fig. 1. Park deficit analysis. 332 R. García et al. / Preventive Medicine 49 (2009) 330–333 333R. García et al. / Preventive Medicine 49 (2009) 330–333 for the remaining parcels at a cost of $2 per year, for a combined open space of 0.5 acres. In conjunction with a local hospital, LHA secured the pro bono services of two Southern California-based firms to build a safe, environmentally conscious and LEED-certified community center and park. The park will feature a basketball half-court, toddler playground, adolescent jungle gym, and walking path. Security features include wrought iron gates surrounding the park area, safety night lighting, and rest points for elderly users. These features and amenities were included to increase physical activity opportunities for children and their families, and promote community mobilization for a healthy community. Discussion These case studies illustrate how advocacy efforts have resulted in increased access to public resources related to physical activity in several Southern California communities. Given the current inequities in access to public resources in poor and ethnic minority commu- nities, continued advocacy efforts are vital. With regard to the development and use of public lands, we have proposed ten principles to guide policy makers, which we summarize here (See full text of principles in García and White, 2006). The process of decision-making regarding investment of public monies in the built environment need to be transparent and fair and guided by a comprehensive vision for promoting the health of the entire community. Policy-makers should prioritize projects that can meet multiple community needs as well as promote community health such as establishing public parks within the campuses of new and remodeled schools that can provide safe-space for physical activity and potentially remove pollutants from the water and mitigate runoff. Resources should first be allocated to low-income and ethnic minority communities in order to overcome the legacy of inequities in access to high quality public parks and schools. Standards for measuring equity must be established for agencies in order to track progress in building healthy and livable communities for all. Increased attention should be paid to ensuring that recipients of public funds comply with federal and state laws designed to achieve equal access to all public resources including Title VI of the Civil Rights Act of 1964 (i.e., prohibits discrimination on basis of race, color, or national origin for programs and activities conducted with federal funding) and parallel state laws. Finally, the community needs to be engaged and empowered to take part in all aspects of infrastructure decision-making and prepared to engage in advocacy efforts if the outcome of the decision-making process is not satisfactory. Given the agenda of the new federal administration and availability of stimulus funds, many transportation infrastructure projects are underway. These projects must focus attention on ensuring that the low-income and ethnic minority communities benefit at least equally, and efforts should be made to redress past inequities. The subgroups most likely to benefit from increased access are low-income men and women living in resource-poor commu- nities. They have likely devoted their scarce resources to car ownership given the significant obstacles faced in accessing reliable public transport. Individuals in these same communities likely have little leisure time to spend in physical activity and reduced access to recreational facilities, parks or walking trails. Existing educational laws (i.e., “No Child Left Behind” and similar state laws) developed to primarily improve standard academic metrics should be amended to mandate the inclusion of physical education in federal monitoring and accountability. These efforts are likely to have the most benefit for low-income and ethnic minority populations for whom the childhood obesity epidemic is most severe and opportunities for physical activity outside of school are limited. Integration of physical activity into the school day is a prime example of a “push” strategy designed to make the healthy choice easier and unhealthy choice (i.e., remaining inactive) more difficult. Such strategies rely less on individual motivation and choice and thus may be more successful in engaging populations who typically do not participate in physical activity and who may be more likely to benefit (Yancey et al., 2007). Realization of the severity of the obesity and chronic disease epidemics and failure of individually focused interventions has led to heightened interest in implementing environmental interventions to increase physical activity. Although promising, the impact of these strategies in ultimately reducing the obesity epidemic will be limited by the presence of continued inequities in the distribution of physical activity-related resources in the community. Advocacy efforts are critically needed to ensure that all communities benefit equally from infrastructure projects designed to build healthy communities, effective public schools and safe and reliable transportation. Without continued advocacy efforts, the environmental strategies being implemented to increase physical activity levels in the population will lead to a widening versus narrowing of the gap between the health status of the wealthy and poor in this country. Conflict of interest statement The authors declare that there are no conflicts of interest. Acknowledgments The preparation of this paper was funded in part through a grant from the Centers for Disease Control and Prevention (CDC) and the National Cancer Institute (NCI) cooperative agreement for the Cancer Prevention and Control Research Networks (CPCRN) 1-U48- DP000056. References Babey, S., Hastert, T., Yu, H., Brown, E.R., 2008. Physical activity among adolescents when do parks matter? Am. J. Prev. Med. 34 (4), 345–348. Brown, E.R., Babey, S.H., Hastert, T.A., Diamant, A.L., 2005. Half of California adults walk less than one hour each week. Health Policy Res. Brief (PB2005-9), 1–8. California Center for Public Health Advocacy, 2006. Dropping the ball: California schools fail to meet physical education mandates. Available at http://www. publichealthadvocacy.org/droppingtheball.html. Accessed November 1 2008. Cawley, J., Meyerhoefer, C., Newhouse, D., 2007. The impact of state physical education requirements on youth physical activity and overweight. Health Econ. 16, 1287–1301. Dannenberg, A.L., Bhatia, R., Cole, B.L., Heaton, S.K., Feldman, J.D., Rutt, C.D., 2008. Use of health impact assessment in the U.S.: 27 case studies, 1999–2007. Am. J. Prev. Med. 34 (3), 241–256. Estabrooks, P.A., Lee, R.E., Gyurcsik, N.C., 2003. Resources for physical activity participation: does availability and accessibility differ by neighborhood socio- economic status? Ann. Behav. Med. 25 (2), 100–104. García, R., Fenwick, C., 2009. Social Science, equal justice, and public health policy: lessons from Los Angeles. J. Public Health Policy 30, S26–S32. García, R., Rubin, T., 2004. Cross Road Blues: transportation justice and the MTA consent decree. In: Lucas, K. (Ed.), Running on Empty, pp. 221–256. García, R., White, A., 2006. Healthy parks, schools, and communities: mapping green access and equity for the Los Angeles Region. The City Project Policy Report 8–9. Available at www.cityprojectca.org/ourwork/mappinggreenaccess/documents/ Healthy_Parks_Schools_Communities_textonly.pdf, accessed 31 October 2008. Lachapelle, U., Frank, L., 2009. Transit and health: mode of transport, employer- sponsored public transit pass programs, and physical activity. J. Public Health Policy 30 (SI), S73–S94. Mather, M. 2009. Most U.S. workers still driving alone. Population Reference Bureau. Accessed at http://www.prb.org/Articles/2008/commuting.aspx?p=1. Sacks, G., Swinburn, B., Lawrence, M., 2009. Obesity policy action framework and analysis grids for a comprehensive policy approach to reducing obesity. Obes. Rev. 10, 76–86. Tajik, M., Minkler, M., 2007. Environmental justice research and action: a case study in political economy and community-academic collaboration. Int. Q. Community Health Educ. 26 (3), 213–231. Trust for Public Land, 2005. City of Santa Ana Feasibility Study. Yancey, A.K., Fielding, J.E., Flores, G.R., Sallis, J.F., McCarthy, W.J., Breslow, L., 2007. Creating a robust public health infrastructure for physical activity promotion. Am. J. Prev. Med. 32, 68–78. 
work_a5o2l7z7b5dxnb76korflw7iju	----	Poetic Justice: Corruption in Lambton County, Canada West, 1854-1858 Copyright © The Ontario Historical Society, 2013 Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 22:20 Ontario History Poetic Justice Corruption in Lambton County, Canada West, 1854-1858 Gregory Stott Volume 105, numéro 2, fall 2013 URI : https://id.erudit.org/iderudit/1050732ar DOI : https://doi.org/10.7202/1050732ar Aller au sommaire du numéro Éditeur(s) The Ontario Historical Society ISSN 0030-2953 (imprimé) 2371-4654 (numérique) Découvrir la revue Citer cet article Stott, G. (2013). Poetic Justice: Corruption in Lambton County, Canada West, 1854-1858. Ontario History, 105(2), 160–182. https://doi.org/10.7202/1050732ar Résumé de l'article A partir de 1855, Robert McBride (1811-1895), commerçant et receveur des postes dans le comté de Lambton, poète, Orangiste, et conservateur modéré, s’est considéré comme victime d’une conspiration organisée par des politiciens réformateurs intrigants et leurs amis. Dans ses livres de poésie, particulièrement ses Poems Sentimental & Satirical On Many Subjects Connected with Canada, se basant sur son expérience personnelle, il a décrit les agissements coupables des juges, de la classe des spéculateurs terriens, et autres personnes liées au mouvement réformiste du Haut-Canada, qui, d’après lui, sapaient et corrompaient les bases britanniques de la province. Les poèmes de McBride, et autres documents concernant ses difficultés légales, nous aident à comprendre les liens compliqués qui existaient parmi les administrateurs coloniaux au niveau local dans le Haut-Canada des années 1850. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/onhistory/ https://id.erudit.org/iderudit/1050732ar https://doi.org/10.7202/1050732ar https://www.erudit.org/fr/revues/onhistory/2013-v105-n2-onhistory03917/ https://www.erudit.org/fr/revues/onhistory/ �60 ONTARIO HISTORY On 2 January 1856 the Court of General Quarterly Sessions and the Lambton County Court met at the Sarnia courthouse before his Honour Judge Charles Robinson, as- sisted by W.E. Wright, Alfred Fisher, and Froome Talfourd. The fifth case brought before the County Court was an action of Tort against Port Franks’ merchant and postmaster Robert McBride by Wid- der merchant Robert Rae.2 While the case of “Rae verses Mc- Bride” received a modicum of coverage in the local press, like many other simi- lar cases, it quickly faded from the public consciousness. It did not, however, fade from the memory of the defendant who remained convinced that he was a victim not only of a miscarriage of justice, but also of a deliberate conspiracy. However dubious the claims may seem to subse- quent investigators, McBride believed that his downfall had been orchestrated by various representatives of the colo- nial government and administration in the Province of Canada. For McBride these apparent transgressions were ex- tremely personal, and yet, he felt, they were symptomatic of a pervasive cancer that was undermining Upper Canadian society. McBride also believed that these outrages were subverting the founda- tion of British values upon which he felt the colony and its society had been built. This was leading to the colony’s degradation and was forcing many of its “best sons” to find greener pastures in the United States. The Act of Union of 1841 had been foisted upon an unhappy and unwilling colonial population still grap- pling and reeling from the effects of two separate rebellions against the established Poetic Justice Corruption in Lambton County, Cana da West, 1854-18581 by Gregory Stott Ontario History / Volume CV, No. 2 / Autumn 2013 1 A much earlier version of this paper was presented in the History Department Seminar Series at Nipissing University on 8 October 2008. Special thanks to members of Nipissing’s Department of His- tory for their help and input and also to Michelle Vosburgh of Brock University, Sandra Barber of Univer- sity College of the North, Beth McAuley of Toronto, and the paper’s anonymous reviewers. 2 Sarnia Observer, 10 January 1856. Charles Robinson was born in Ireland in about 1817. Local ‘In- dian Agent’ Froome Talfourd was a native of England, born in 1809, while Sarnia’s postmaster Alfred Fish- er was born in England in about 1820. Canada Census, 1861, Sarnia Town. For a detailed examination of Upper Canada’s legal system in the first half of the nineteenth century see David Murray. Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791-1849 (Toronto: University of Toronto, 2002). inside pages autumn 2013.indd 160 2018-03-03 10:38:10 PM �6�corruption in lambton county, �854-58 authorities. While the rebellions had gained little support, at least in Upper Canada, the Union of the Canadas, which linked the predominantly Francophone- Catholic Lower Canada with the more generally Anglophone- Protestant Upper Canada, had just as little in the way of sup- port. It was a difficult union that stumbled along through sectar- ian, representational, economic, and political squabbles. The troubles facing this union would ultimately have much to do in initiating discussions that result- ed in Confederation in 1867.3 The colony’s internal dif- ficulties and problems aside, commentators at the time and many historians since have fre- quently lauded the fact that by the end of the 1840s the Union of the Canadas had managed to achieve entrenched responsible government, which in practice and spirit matched the full po- tential and rights of the colo- nists under what was ostensibly a British constitution and for the most part laid aside the di- visive issues of race and religion to create a particularly Canadian democracy. It seemed to put behind the colonies the old corruptions and abus- es of the apparently notorious “Fam- ily Compact” of the pre-rebellion period when cronyism had a stranglehold on pa- tronage and power.4However, McBride Abstract Beginning in 1855 Lambton County merchant, post- master, poet, Orangeman and moderate conservative Robert McBride (1811-1895) saw himself as a victim of a conspiracy launched by scheming Reform-minded politicians and their cronies. In books of poetry, particu- larly his hefty Poems Sentimental & Satirical On Many Subjects Connected with Canada, and drawing on his own experiences, he outlined the malfeasance of the ju- diciary, the ‘land jobbing’ class, and others associated with the Reform movement in Canada West who, he claimed, were undermining and corrupting the British foundations of the province. McBride’s poetry and other contemporary documentation about his legal travails help us understand the complex connections that existed among colonial administrators at the local level in Can- ada West in the 1850s. Résumé: A partir de 1855, Robert McBride (1811- 1895), commerçant et receveur des postes dans le comté de Lambton, poète, Orangiste, et conservateur modéré, s’est considéré comme victime d’une conspiration organ- isée par des politiciens réformateurs intrigants et leurs amis. Dans ses livres de poésie, particulièrement ses Po- ems Sentimental & Satirical On Many Subjects Con- nected with Canada, se basant sur son expérience person- nelle, il a décrit les agissements coupables des juges, de la classe des spéculateurs terriens, et autres personnes liées au mouvement réformiste du Haut-Canada, qui, d’après lui, sapaient et corrompaient les bases britanniques de la province. Les poèmes de McBride, et autres documents concernant ses difficultés légales, nous aident à compren- dre les liens compliqués qui existaient parmi les adminis- trateurs coloniaux au niveau local dans le Haut-Canada des années 1850. 3 J.M.S. Careless. The Union of the Canadas: The Growth of Canadian Institutions 1841-1857 (To- ronto: McClelland and Stewart, 1967), 222-23. S.J.R. Noel. Patrons, Clients, Brokers: Ontario Society and Politics, 1791-1896 (Toronto: University of Toronto Press, 1990), 130-33. 4 John Edwin Hodgetts. Pioneer Public Service: An Administrative History of the United Canadas, inside pages autumn 2013.indd 161 2018-03-03 10:38:11 PM �62 ONTARIO HISTORY felt differently. In fact he believed that if anything the situation had grown worse under the new order and he felt that his own experiences and observations proved this point. Far from promoting the inter- ests of the colonists, the Union, in his opionion, had seriously jeopardized the rights and values of what he saw as the core British nature of the predominantly Prot- estant Upper Canada or Canada West and threat- ened the underpinnings of its society. In the preface to his hefty volume of po- etry, Poems Sentimental & Satirical On Many Subjects Connected with Canada, in which he recounted his troubles and outlined the problems facing Canada West, McBride noted that the haemorrhaging of peo- ple had two causes “It is the land jobbing craft and the land jobbing craft; these are the principal actors. I have watched them for over thirty years. Previous to the union with the French, they were harmless; since then, they have got power they never had before, and have grown into monster leeches. These have pro- duced a boil, into which, if a probe was sent to the bottom, the pus that would 1841-1867 (Toronto: University of Toronto Press, 1955), 20, 46-47, 162-63; Noel, Patrons, Clients, and Brokers, 155-56. Certainly there was much anxiety over the control that the Reformers had over patronage under Robert Baldwin and Louis LaFontaine and the manner in which it was dispensed caused anger both within the ranks of the Reform movement as well as within the ranks of the more conservative opposition. John Clarke. Land, Power, and Economics on the Frontier of Upper Canada (Montreal: McGill-Queen’s University Press, 2001), 449-55; John Ralston Saul. Extraordinary Canadians: Louis-Hippolyte LaFon- taine & Robert Baldwin (Toronto: Penguin, 2010), 5-6. Robert McBride’s Poems Satirical and Sentimenal, published in 1869, was his way of striking out at his many adversaries. inside pages autumn 2013.indd 162 2018-03-03 10:38:11 PM �63 come forth would astonish the people.”5 In a society where so much of the politi- cal culture was built on what S.J.R. Noel outlined as “clientalism” which he iden- tified as highlighting the important pat- tern of the useful connections between patrons and clients, there was much emphasis placed upon deference to so- cial and political betters.6 However, Mc- Bride was not alone complaining about the persistence of corruption within the Canadas which played a major role in unseating the administration of Francis Hincks in 1854.7 Corruption in the land distribution process was the core of McBride’s medi- cal metaphors. It was issues over land that had led to the emergence of a new and powerful “land jobbing” class that victim- ized all who crossed it. McBride had ob- served these people at work when he lived along the Grand River and found it again upon his arrival in Lambton County. In his great tomes of poetry, McBride—arch Tory and Orangeman—linked together the Canada Land Company, the judici- ary, and, overarching them all, the great Reform-minded politicians and their supporters. It was this last group who, through compromising their principles with the French-Catholic “other” and advancing their own policies and cronies, had, despite their claims, victimized Up- per Canadians and stunted the growth of the colony. As McBride further claimed, “If there was a good doctor that would begin and purify the blood first, he might then make a cure.”8 Poetry as a form of political activism was not unique to McBride, as American poets like Walt Whitman and William Davis Gallagher used poetry as a means of voicing political ideals and concerns. Even in Canada poems had been used 5 Robert McBride, “To the Reader,”Poems Sentimental & Satirical On Many Subjects Connected with Canada, Including A Complete Exposure of Our County Court, and Division Court System, in Several Theat- rical Acts & Dialogues, Showing How the People Have Been, and Are Now Victimized. All Tending to Prove on the Part of those Indicated, a Complete Conspiracy set up by them for the Purpose of Enslaving the people of this Country. Also a Dissertation on the Doings of the Canada Company’s Land, Jobbing, and other Matters (London, Ontario: Dawson Brothers, 1869), 3. On the issue of land and government land policies during the nineteenth century, see Michelle Vosburgh, “The Crown Lands Department: The Government and the Settlers of McNab Township, Canada West,” Ontario History 100:1 (Spring 2008); 80-100; Michelle Vosburgh, “Bending the Rules: Inspectors and Surveyors and Upper Canada’s Land Policies,” Ontario History 94:2 (November 2002); 148-64. Evidence of what McBride most decried about speculators and ‘land jobbing’ is amply described in David Shanahan, “Tory Bureaucrat as Victim: The Removal of Samuel Jarvis, 1842-47,” in Ontario History 95:1 (Spring 2003): 38-64. Kenneth C. Dewar’s study of Charles Clarke examines a prolific writer who would have been a political opponent of McBride. The study, how- ever, has much to say about a mid-nineteenth-century Canadian political writing. Kenneth C. Dewar. Charles Clarke: Pen and Ink Warrior (Montreal: McGill-Queen’s University Press, 2002); xiii-xv, 47-70, 270-73. 6 S.J.R. Noel, 14-17. 7 Globe, 22 March 1855; Ibid., 14 May 1855; A Doubly Disappointed Settler, “More Land Jobbing!,” Globe, 6 July 1857; “Opinions of the Press: The Next Election,” copied from the Haldimand Independent in Globe, 10 November 1857. 8 McBride, “To the Reader,”Poems Sentimental & Satirical, 3; David Shanahan, “Tory Bureaucrat”, 45-47. corruption in lambton county, �854-58 inside pages autumn 2013.indd 163 2018-03-03 10:38:11 PM �64 ONTARIO HISTORY by French-Canadian nationalists in the lead up to the Rebellion of 1837-38.9 With their essential focus on his experi- ences, McBride’s poems provide a unique insight into aspects of the judicial sys- tem and the way land issues and courts were experienced by one individual. The poems penned by McBride are certainly not impartial and are far from accurate transcripts of the proceedings—which, if they existed, have not survived. They are largely based upon the memory of the writer, but, while he uses the alter ego “John Merchant,” the dates and pro- cedures to which he refers are consistent with those found in other more official records of the proceedings against him. McBride took much poetic license and imagined many of the exchanges based upon his own suppositions and possible paranoia. McBride’s writings cannot re- construct the actual trial transcripts, or properly evaluate his claims of injustice, but they do provide a fascinating and im- portant glimpse into perceived wrongs and the motivations for his political ac- tivism. Whatever fame or notoriety Robert McBride gained during his lifetime, it was probably quite local in its scope and extent. For the most part he appears to have laboured in relative obscurity, and while his work may have gained the at- tention of some in the 1860s and 1870s, it was almost certainly forgotten until pe- riodically dredged up by local antiquar- ians and journalists and occasionally his- torians. His published works, amounting to one hefty and two considerably lighter volumes of poetry, probably had a lim- ited shelf-life.10 A native of Ardstraw in the parish of Urblereagh in County Tyrone, Ireland, McBride was a product of his time and place. Born in late 1811 or early 1812 the self-styled “Canadian Orange Minstrel” had been well educated, later demon- strating his breadth of knowledge of Irish and British history, a competent grasp of the English language, and a devotion to the ideals of the British constitution.11 It is clear that, like many of his contem- poraries, McBride did not view Canada as much other than an extension of his native British Isles.12 The influence of his Orangeism had a huge role to play in 9 Jason Frank, “Aesthetic Democracy: Walt Whitman and the Poetry of the People,” Review of Poli- tics 69:3 (2007), 402-430; Terry A. Barnhart, “The Partisan: William Davis Gallagher and the Cause of Western Literature,” Ohio History 115 (2008), 101-120; Muriel Farley Dominguez, “Politics and Poetics: A Study of Nineteenth-Century Nationalist Verse in French Canada,” Nineteenth Century French Studies 21:1-2, (1992-1993), 168-79. 10 Arthur Ford, “Over the Weekend,” Sarnia Observer, 23 December 1946; Greg Stott. “Yon Sand- Beaten Shore”: The Story of Port Franks, Ontario (Arkona, Ontario: G. Stott Publishing, 1998), 11-23; Greg Stott, “‘The Chicago of the Dominion’?: The Development of Port Franks, Ontario.” Ontario His- tory 45 (Spring 2003), 22-37; Christina Burr, “‘Oil Mania’: Colonial Land Policy, Land Speculation, and Settlement in Enniskillen Township, 1830s-1860s,” Histoire sociale/ Social History 38:76 (2005), 305. 11 McBride, “Dreams and Reminiscences: Written March 1858,” Poems Sentimental & Satirical, 239, 242-43. 12.McBride, “Epistle to Mr. Davis,” and “Epistle From Davis,” Poems Satirical & Sentimental, 11-19. Catherine L. Albanese, “On the Matter of Spirit: Andrew Jackson Davis and the Marriage of God and Na- inside pages autumn 2013.indd 164 2018-03-03 10:38:11 PM �65corruption in lambton county, �854-58 his decision making. While the diversity of the Orange Order’s membership in British North America little resembled the greater homogeneity of the organi- zation in the British Isles, and seemed to be largely removed from the original conflicts in Ireland, the presence of a huge Francophone-Catholic popula- tion and the increasing influx of dispos- sessed Irish Catholic immigrants in the 1840s in the colonies gave the Order a particular resonance for many Protestant Canadians. Indeed, it was the antipathy toward Catholicism that provided even greater unity than the issue of loyalty to the Crown. McBride’s many references to the triumph of the Protestant religion in the struggles in Ireland and his espousal of the Protestant cause in Canada were clearly illustrated in his many poems celebrating the Order. He equated Ro- man Catholicism with backwardness and viewed adherents to the Roman Catholic Church—whether by design or ture,” Journal of the American Academy of Religion 60 (Spring 1992); 1-17. David Gagan, “George Taylor Denison,” Dictionary of Canadian Biography, vol. 10 (Toronto: University of Toronto Press, 1972), 224- 25; David Gagan. The Denison Family of Toronto 1792-1925 (Toronto: University of Toronto, 1973), 32- 43; David Mills. The Idea of Loyalty in Upper Canada, 1784-1850 (Montreal: McGill-Queen’s University Press, 1988), 58-59; J.M. Bumsted, “The Consolidation of British North America, 1783-1860,” Canada and the British Empire, ed. Philip Buckner (Oxford: Oxford University Press, 2008), 43. inside pages autumn 2013.indd 165 2018-03-03 10:38:11 PM �66 ONTARIO HISTORY default—as enemies of British freedoms and the well-being of Canada.13 Following his father’s death, McBride “secured the position of Seal Master or inspector of linens, in the Strabane Lin- en Hall, which position he held for six years.” At that juncture he resigned and immigrated to Canada sometime in the 1830s. According to later documenta- tion, upon arriving in the Upper Canada he settled in Hamilton, “entering into the grocery business,” before moving on to Oneida Township in nearby Haldi- mand County.14 By the early 1840s he was married to a woman whose name is unknown. Two sons were born of the un- ion, James in1841, and William in 1844. It was shortly thereafter that McBride’s wife died.15 He then married an Upper Canadian woman named Mary who was twenty years his junior; their daughter Elizabeth, was born in 1850. However, his second wife and young daughter died sometime during the early 1850s. Of these tragedies McBride made no men- tion in his writings.16 Early in 1851 McBride bore witness to what he saw as an outrage against a group of “persecuted people who have been shamefully abused by our Canadian Government.” This group of settlers had been squatters along the Grand River on lands dubiously transferred from the con- trol of the Six Nations Confederacy. This situation arose during a period of inter- necine disputes and rivalries between con- flicting political and bureaucratic institu- tions that had pitted Reformers against traditional Tories and helped to ensure the downfall of Indian Agent Samuel P. Jarvis. Changes in administration and reinterpretations of laws and agreements under the aegis of the Reformers and Governor General Lord Elgin had led to the forcible dispossession of the squatters. Whatever the legalities, McBride’s sense of justice was badly shaken when these people, who had “been encouraged to settle on these lands by a former Govern- ment,” were dispossessed of their homes and evicted. Given their experiences, many of these settlers either dispersed to the United States or sought refuge in the western parts of Canada West on Canada Company lands.17 Given his background, education and proclivities, this incident inflamed McBride’s anger over the steady loss of Canadians to the United States.18 As an Orangeman, McBride also saw a clear conspiracy of Catholics attempting 13 Scott W. See. Riots in New Brunswick: Orange Nativism and Social Violence in the 1840s (Toronto: University of Toronto, 1993); 71-76; Mills, The Idea of Loyalty in Upper Canada, 1784-1850, 85-87. Rob- ert McBride, “Come to Our Standard; Or Unions is Strength to Our Protestant Cause,” The Canadian Orange Minstrel (London, C.W.: London Free Press, 1860); 3-4. 14 Petrolia Advertiser, 21 November 1895. 15 McBride, “Obituaries: Written by the Author after the Death and Burial of his Eldest Son, who died at Oil Springs June 13th, 1862, Aged 20 Years 6 Months and 23 Days,” Poems Sentimental & Satiri- cal, 273. 16 McBride, “Moral” Poems Sentimental & Satirical, 276. 17 McBride, “A Dissertation On the Doings of the Canada Company’s Land Jobbing and Other Mat- ters,” Poems Sentimental & Satirical, 281; F.J.Cheshire Information for the Public Account of the Proceedings inside pages autumn 2013.indd 166 2018-03-03 10:38:11 PM �67corruption in lambton county, �854-58 to undermine the “true” British charac- ter of Canadian society, and this appar- ently “sinister” influence was directly un- dermining land tenure and the rights of Protestant settlers.19 While McBride railed against the fate of his friends and neighbours, he was not himself directly caught up in the dis- possession. He was, however, interested in looking for greener pastures, although he was determined to remain on British soil. McBride felt that the security of the Oneida and Tuscarora Township squat- ters had been guaranteed by the more conservative-minded regime of Metcalfe and his chief advisor William Henry Draper. The about-face with regard to these “persecuted people” was made un- der the aegis of the reform-minded Lord Elgin and the co-premiers Robert Bald- win and Louis-Hippolyte Lafontaine. While the politics and sectarian conflicts of his youth would heavily influence his subsequent writings and philosophies, McBride found that many of these con- cerns melded well with the new political situations that he found in his adopted land. McBride and other Orangemen of Loyalist and British background found ready applications of their politics and beliefs in the colony. Through his own observations and experiences, McBride came to equate upheaval, dislocation and injustice with the zeal and corruption at the root of the Reform movement.20 Whether or not McBride was part of the “moderate Toryism” that emerged in Upper Canada during the polarizing de- bates of the 1820s and 1830s, he seems to have harboured little faith in many Reform-minded politicians. As David Mills argued, Upper Canadians had be- come less swayed by the ideolog y of loy- alty than with its more practical political realities. There had been considerable disquiet about the extremism employed by traditional Tory authorities on the is- sue of loyalty, which equated reformist attitudes with disloyalty, American re- publicanism, and social chaos.21 McBride and Doings of the Government Commissioners Against the Unfortunate Settlers Upon the Indian Lands in the Townships of Tuscarora and Oneida, in the Years of our Lord 1846 and 1847 (Hamilton: Gazette Of- fice, 1847), 3-11. The crux of the issue was the fact that the Six Nations Confederacy whose lands flanked the Grand River had given so-called Brant Leases or Indian Deeds of land to various settlers from outside of the Confederacy, namely, people of non-First Nations background. Colonial authorities increasingly viewed these transactions as illegal for they maintained that the Crown alone protected and administered the rights of Upper Canada’s First Nations peoples. See John S. Hagopian, “Joseph Brant vs. Peter Russell: A Re-examination of the Six Nations’ Land Transactions in the Grand River Valley,” Histoire Sociale/Social History 30:60 (1997), 300-333 and Shanahan, “Tory Bureaucrat as Victim: The Removal of Samuel Jarvis, 1842-47,” 38-64. From the perspective of the settlers the new administration seemed to renege upon earlier promises and set up a board of commissioners to investigate the situation [D. Fraser to John S. Pakington, 28 May 1852, in Return to an Address of the Honourable The House of Commons dated 16 August 1853, 3]. 18 McBride, “Imprisonment for Debt Illustrated,” The Canadian Orange Minstrel (1860), 5 19 Robert McBride, “ON THE MURDER OF JAMES CAMPBELL BY THE ONEIDA PAPISTS, JULY 12, 1851. TUNE – “OUR COUNTRY ’S SAVIOUR.” The Canadian Orange Minstrel (1860), 12-13. 20 See, Riots in New Brunswick: Orange Nativism and Social Violence in the 1840s, 75. 21 Mills, The Idea of Loyalty in Upper Canada, 1785-1850, 71. inside pages autumn 2013.indd 167 2018-03-03 10:38:11 PM �68 ONTARIO HISTORY himself felt antipathy toward prominent Catholic politicians and held the Act of Union as the cause of the steady migra- tion to the United States. In a note ac- companying his poem “The Canadian Serpent” he argued that “Previous to our union with the French, very few Canadi- ans left the country, since then there has been a combination so unjust as to cause them to leave in thousands.” It was, from McBride’s perspective, a deliberate policy of Lower Canadian politicians and their associates to ensure that their population remained the larger part of the union.22 McBride suggested that many af- fected by the land seizures along the Grand River had been encouraged by promotional literature from the Canada Company to take up lands in Bosanquet Township on Lake Huron in the south- ern reaches of the Huron Tract. Having corresponded with company officials in Toronto, McBride was provided with a prospectus for the creation of a new town at the mouth of the Ausable River to be called Port Franks. McBride and at least two other parties from his neigh- bourhood attempted to secure land in the region, only to discover that Canada Company officials in the district capital of Goderich professed to know nothing of the plan. A flurry of confused corre- spondence and hastily issued disclaimers were sent. However, the Canada Com- pany now had to face the ire of McBride and other potential settlers who threat- ened legal action for being misled and for redressing possible costs. Indeed, Mc- Bride had already disposed of his Oneida property. Facing legal unpleasantness, Company officials immediately retracted their previous disavowals and dispatched surveyors to lay out the town plot of Port Franks. On 17 November 1851, Mc- Bride secured deeds for five one-quarter acre lots, although he would not relocate to Port Franks until early in 1854.23 By the time of his arrival, a small settlement of a few dozen squatting fishermen and lumbermen had grown up around a tav- ern started by Levi Stephens.24 According to his later musings, Mc- Bride’s difficulties began almost at once. While he was busy erecting his new busi- 22 McBride, “The Canadian Serpent,” Poems Sentimental & Satirical, 229-233. McBride, “ON THE TRAP FOR UPPER CANADA, AS SEEN BY PROTESTANT GEORGE AND PAPIST McGEE, JOINING HANDS,” The Canadian Orange Minstrel (1860), 5-6. See David A. Wilson, Thomas D’Arcy McGee: Volume I: Passion, Reason, and Politics, 1825-1857 (Montreal: McGill-Queen’s University Press, 2008), 32-35. 23 McBride, “A Dissertation On the Doings of the Canada Land Company’s Land Jobbing and Other Matters,” Poems Satirical & Sentimental 281-286. Circumstantial evidence suggests that his wife and daughter died during this period. Tina Loo has argued that in the scattered and isolated gold rush settle- ments of mid-nineteenth-century British Columbia the law and legal structures were used as a means of es- tablishing economic and social order. They were employed to provide for the orderly construction of civil society, ensuring property rights and cementing potentially disparate elements of colonial society together. Tina Loo. Making Law, Order, and Authority in British Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994), 71-72, 92; 24 Stott, “‘The Chicago of the Dominion’”, 22-26; Bosanquet Township Assessments 1852 and 1853, Lambton Room Archives, Lambton County Library Headquarters, Wyoming, Ontario. inside pages autumn 2013.indd 168 2018-03-03 10:38:11 PM �69corruption in lambton county, �854-58 ness and home at Port Franks and secur- ing a post office for the community, of which he was to be postmaster, he again ran into difficulties with the Canada Company. Writing “to the Company for several parties who wanted to buy build- ing lots,” he was frustrated to receive no response. He learned that when the township council had written to Com- pany officials for lists of sold lots for the purposes of taxation, they had been in- formed “that there was no town there, nor likely never [sic] would be.”25 All further attempts to seek clarification on the mat- ter failed.26 McBride was then advised by unnamed parties to take legal action for having been lured “into the wilderness, under false pretences of a town being where the existence of which was denied by themselves.”27 Although he pursued legal action he was apparently the victim of an unscrupulous or incompetent law- yer. McBride insinuated that his suit— and by inference any suit—against the Canada Company was useless “because money can bribe and do anything with too many of the lawyers we have at the present day.”28 Whether he was aware of it or not similar complaints surrounded other Canada Company lands in How- ick Township were “land jobbing” duped other settlers while other commentators exposed politicians having “engaged in land jobbing and other practices unwor- thy of statesmen”.29 McBride’s land prob- lems were still unresolved when he was overtaken by other legal woes.30 In 1854 McBride secured the po- sition of postmaster at Port Franks through the aegis of Postmaster Gen- eral Malcolm Cameron. As McBride poetically explained he was informed by Cameron’s cronies that as, “you are one [who] receives the bounty;/ So you will use, without objection,/ Your voice, and vote at our election.”31 However, given that McBride’s political proclivities were better aligned with Cameron’s oppo- nent, George Brown, and the fact that he objected to having his vote bought, he 25 McBride, “Dissertation,” Poems Satirical & Sentimental, 288. 26 Bosanquet Township Minutes, 6 March 1854, 27 November 1855, and 16 April 1856. 27 McBride, “Dissertation,” Poems Satirical & Sentimental, 289. 28 Ibid. 29 A Doubly Disappointed Settler, “More Land Jobbing!,” Globe, 6 July 1857; “Opinions of the Press: The Next Election,” copied from the Haldimand Independent in Globe, 10 November 1857. The situa- tion in Howick was not dissimilar to that faced by McBride at Port Franks. The settler was issued with a receipt by John Clarke, the Crown Land Agent at Goderich—the same man McBride had dealings with in 1851—but when he went to make his second payment he “was refused on the ground that the land had been sold to other parties!” A commission of inquiry established that there had been a mistake. However, it was later explained “that the second instalment cannot be taken from me or my friends, as the lots were sold to other parties in April, 1854, just four months prior to the Government public sale in Goderich, at which our purchase was made, and instalments paid.” The aggrieved settler demanded to know whether “our land granting department will be placed in a state of efficiency, and disappointed settlers cease to be driven to seek lands where they at least receive straightforward and honourable treatment—in the United States?” 30 Sarnia Observer, 26 April 1855. 31 McBride, “County Court,” Act 1, Scene 1, Poems Satirical & Sentimental, 19. inside pages autumn 2013.indd 169 2018-03-03 10:38:11 PM �70 ONTARIO HISTORY publically refused to cast his vote for his benefactor, whatever his perceived debt. In his essay “Dissertation” he chose a nar- rative voice to further explain that: About this time there had been an election in this County [Lambton], and one of the Bailiffs being anxious to secure the return of his man, and seeing and knowing that the writer had a good many bills due him over the country; this Bailiff wanted to get them out of his hands for collection, which would have been a good thing before an elec- tion, but the Bailiff was told that he was not in the habit of suing unless he could not help it, and would give no bills. This Bailiff then asked him for his vote for his friend, and threatened him if he would not vote as he wanted him (this is the whipping-in season), that he would suffer. The reason he said was, because his friend had great interest in the country. He then told the Bailiff that the very threat would cause him to vote for his opponent, if he even thought he was no better than the other. But just as sure as the Bailiff threatened, and immediately after the election the trouble began, but so long as an old gentleman, “who was then judge,” sat on the bench, they could do him little harm. This Judge was one of the old appointments, but he was soon exchanged for another.32 While Upper Canadian elections frequently included discord, threats and even violence, campaigns in Lambton and neighbouring Huron counties had been particularly contentious affairs, es- pecially in the early 1850s when a seri- ous split in the Reform camp emerged.33 32 McBride, “Dissertation,” Poems Satirical & Sentimental, 289-90. 33 John Garner. The Franchise and Politics in British North America, 1755-1867 (Toronto: University of Toronto Press, 1969), 198-99, 200-209. The Hon. Malcolm Campbell, the target of much of McBride’s wrath. Credit: Topley Studio, Library and Archives Canada. PA 025476. inside pages autumn 2013.indd 170 2018-03-03 10:38:12 PM �7�corruption in lambton county, �854-58 While McBride had been angered by the about-face shown in the Grand River land issue by the Reform ministry of Baldwin and Lafontaine, he, like many of the government’s detractors, must have been heartened by the fracturing of the old-Reform alliances. In part this fissure was sparked by Toronto’s George Brown who was fearful of the new ministry un- der Francis Hincks and Augstin-Norbert Morin, which was positioning itself as an administration of government and church in an attempt to cement support with Roman Catholic reformers in Low- er Canada. Having alienated Brown and his influential Globe, Hincks had turned to Malcolm Cameron, who, though an independent, had campaigned against Brown, Alexander Mackenzie, and the Central Reform Association of Lamb- ton. Cameron had pointed them out as anti-Catholic and as sowers of discord. Brown, in turn, had denounced Cam- eron as a “political-turncoat” and referred to him as a “Coon”—a name that would remain attached to Cameron and would find ready acceptance by McBride in his future wrangles and writings.34 McBride probably knew of Cameron before he arrived in Lambton County, given the latter’s prominence in provin- cial politics and the role he had played in toppling chief superintendent Jarvis. Whatever feelings he harboured toward Cameron, McBride acknowledged the fact that he owed his appointment as postmaster of Port Franks to Cameron who had been postmaster general until the fall of the Hincks’ ministry late in 1854.35 It was certainly no secret that, in order to secure voters, “Mr. Cameron and all the satellites of Government within reach are traversing the county day and night... [p]romises of office are freely made, new post offices are being erected at every corner.”36 Cameron’s use of public office for political or pecuni- ary gain was well known, and in 1853 he had secured the services of a well-known Conservative commentator to conduct a survey of the Ottawa River valley ostensi- bly for settlement purposes, but in an area 34 Margaret Coleman, “Malcolm Cameron,” Dictionary of Canadian Biography, vol 10 (Toronto: University of Toronto, 1972), 124-29; J.M.S. Careless. Brown of the Globe: Vol. One: The Voice of Upper Canada, 1818-1859 (Toronto: Macmillan Co. of Canada, 1959), 137-41; A.J. Johnston. Lambton County Names and Places: Revised Edition (Sarnia: Lambton County Council, 1942), 37. 35 McBride, Poems Satirical & Sentimental, 19. Cameron was Post Master General of the Canadas as late as 1 September 1854, a full month after McBride took up his post and opened the first post office at Port Franks. A year after he left that office, Cameron’s influence was still being felt when he requested that his successor, Robert Spence, fill a vacancy at the Dundas post office with a man he recommended. In reporting the matter to W.H. Griffin, Spence noted that while “Cameron asks me to appoint John to the letter carrier—I am so fond of C. that I would like to meet his wishes—as I do in most things he asks me—Cameron is a good judge of Character... the great misfortune with John is that he is entirely destitute of Education and not brain enough to remember two messages at one time.” Robert Spence, PMG, to W.H. Griffin, post office appointments, 4 August 1855. Post Office Department, Department Circular, Quebec 1 September 1854, “Reconstruction of the Inspector’s Office Districts, into the London, Toronto, Kingston, and Montreal Divisions”, Malcolm Cameron, Postmaster General. Library and Archives Cana- da, Post Office Fonds, RG 3, Vol. 1007, Folder 7, 1851-58. 36 Globe, 20 July 1854. inside pages autumn 2013.indd 171 2018-03-03 10:38:12 PM �72 ONTARIO HISTORY where Cameron’s associates had timber interests.37 Cameron’s shady dealings led to damaging accusations by his political opponents.38 Whether McBride was will- ing to admit to it, this appointment came with an expectation of future support. Cameron would expect that his patron- age would not go unrewarded. McBride’s failure, and indeed his vehement refusal to reciprocate along with his support for Cameron’s political opponent George Brown—whose anti-Catholic attitudes accorded more closely with McBride’s— in the 1854 contest would make things difficult.39 From McBride’s perspective, his troubles increased infinitely after he, in good faith, purchased a fishing boat from one Abraham Goister, a transaction that, while witnessed, curiously was not docu- mented with a receipt. According to the stylized testimony developed by Mc- Bride, the boat was sold “About the very first of May” in 1855.40 While little is known about Goister with any certainty, it is clear that by the summer of 1855 he was in serious financial difficulties and ultimately forced to sell most of his prop- erty and holdings at a bailiff ’s sale. As the Sarnia Observer—a paper patronized by Cameron—reported, the Scottish-born Widder merchant Robert Rae claimed to have purchased the same boat at the bailiff ’s sale.41 According to McBride, he was served with a “Summons and Ac- count” on 20 September 1855.42 As his alter ego, John Merchant, ranted in the poetic recounting of the events: “These rascals all, I knew them well!/ See how they work their magic spell; I bought that boat, and paid the cash,/ How dare they send me here such trash;/ I must be off and get subpoeneas [sic],/... With time and money I’ll secure them.”43 On 1 November 1855, the Lambton County Court issued a Summons of Trover—a suit alleging the wrongful or fraudulent alienation of property—against Robert McBride who duly appeared with his lawyer William Vidal.44 Robert Rae had already established himself, at least in McBride’s eyes, as a chief adversary both as a competing, and apparently indebted, businessman and a political hopeful in the nearby village of Widder.45 In 1856 Rae launched his 37 Globe, “Mr. Turner’s Appointment,” 12 March 1853. 38 Coleman, “Malcom Cameron,” 127. 39 S.J.R. Noel. Patrons, Clients, Brokers, 13-14, 179, 182-83; Shanahan, 47-49. 40 Sarnia Observer 10 January 1856; McBride, Poems Satirical & Sentimental, 35; Bosanquet Town- ship Minutes, 15 April 1856. 41 Sarnia Observer, 10 January 1856 and 3 July 1856. 42 McBride, Poems Satirical & Sentimental, 23. 43 Ibid. 44 Archives of Ontario, RG 22-2766-0-1, Lambton County, Count Court Appearance Book, 1853- 1860, 1878, 18. Robert Rae Plaintiff vs. Robert McBride. 45 Sarnia Observer, 3 July 1856. Rae appears to have at least hinted that McBride’s role in this matter may have been to simply prevent him from receiving the monies that were due to him, suggesting, as Mc- Bride himself would assert, personal or political antipathy. inside pages autumn 2013.indd 172 2018-03-03 10:38:12 PM �73corruption in lambton county, �854-58 political career by running for a seat on Bosanquet Township council. That same July he secured the appointment as Wid- der’s postmaster, a community that had become an important centre of trade and commerce.46 Unlike McBride, Rae’s sup- port for Cameron was unwavering. Upon being questioned by the judge about the veracity of the claim made against him, “John Merchant” responded emphati- cally, “No! He owes me a large amount./ I’ll show my books, and then you’ll see/ How his account and mine agree:/ I owe him not, nor never did/ Go in his debt— the fates forbid!”47 Rae’s counsel Joshua Adams—who would be immortalized by McBride as “Mr. Positive”—had been born near Perth where his father had been warden of the Bathurst District. The younger Adams had attended the District Gram- mar School before studying law and had practised in his native town from 1848 to 1851. He then sojourned for a few years in the lumber business before moving to Sarnia in 1855, where he resumed the law practice which included the manage- ment of none other than the Honour- able Malcolm Cameron’s businesses and interests.48 Thus, there was a double con- nection to Cameron that would be given great scrutiny by McBride, for he believed that Cameron was the chief architect of his difficulties and persecutions. Al- though he would vehemently condemn Cameron, McBride never implicitly or explicitly admitted any debt or gratitude he might owe for having been awarded the office of Port Franks’ postmaster. McBride was represented by one of Lambton County’s most well-connected lawyers, William Penrose Vidal. The son of a captain in the Royal Navy who had become Sarnia’s first collector of customs, Vidal had accompanied his family to Up- per Canada in 1834. His elder brother, Alexander, became a provincial land surveyor and in 1853 had been named an agent for the Bank of Upper Canada. Part of Sarnia’s elite, the Vidals remained prominently connected to the local Tory and later Conservative establishment.49 On 2 January 1856 the case of “Rae verses McBride” was the fifth of seven cases put before the justices. As the Sar- nia Observer reported: Action of Tort, brought to recover the value of a fishing boat, claimed by the Plaintiff, as having been purchased by him at a Bailiff ’s sale, as then being the property of a person of the name Goister; but which was claimed by the Defendant as having been purchased by him from said Goister, some time previously, the Bailiff ’s sale having been made on an execution against him as the reputed owner of the boat, at the instance of the plaintiff, but retained by the Deft., on the plea of a previous sale made by Goister to him.50 Writing of his experiences in the format 46 Commemorative Biographical Record of the County of Lambton, Ontario (Toronto: J.H. Beers, 1906); 36-38. 47 McBride, Poems Satirical & Sentimental, 24. 48 Commemorative Biographical Record of the County of Lambton, Ontario, 384-85. 49 Ibid., 1-2. 50 Sarnia Observer, 10 January 1856. inside pages autumn 2013.indd 173 2018-03-03 10:38:12 PM �74 ONTARIO HISTORY of a play, McBride remained unswerving in his assertions that “This boat, I bought her long ago,/ And worked her with my men, I’ll show,/ That I possession long had got,/ And paid her price down on the spot.” While in his published work he generally refrained from naming his accusers directly, he allowed himself at least one exception when he made note of the fact that Goister “who sold this boat away,/ Was put in Court by Rip and Rae [author’s emphasis]”.51 At least in hindsight, from McBride’s perspective, it seemed that everyone as- sembled in the courtroom was against him. Just as the case of “Rae verses Mc- Bride” was to be taken up, there was a call made for the court to adjourn for lunch. However, according to McBride’s account, as the members of the jury left the courtroom, he received intelligence that there was a deliberate “plan to get a packed jury.” When six of the twelve jurors failed to return after lunch, Mc- Bride, in poetic form, alleged that Judge Robinson (to whom McBride applied the pseudonym of Blunderbrains) sum- moned six replacements; one of whom was a cousin of the bailiff, another was “a willing imp,” another was a relation to one of Rae’s principal supporters, and a fourth was simply described as having “the thick lip.”52 Adams brought forward several witnesses who spoke on behalf of Rae and claimed that the sale of the boat had been a deliberate fraud. The bailiff was vehement that when he went to seize the boat from McBride’s wharf that the merchant had threatened his life and come after him with various weapons. These were claims that Adams played up and McBride vociferously denied. In response to all of these allegations and witnesses, however, McBride’s lawyer Vidal—to whom he later referred to as “Mr. Simple”—called upon Goister to take the stand. In McBride’s rendition, Goister was adamant that “I sold that boat I truly say,/ About the very first of May;/ Defendant paid me every cent,/ I sold the boat and don’t repent.” When Vidal asked Goister how the payment had been made Goister responded that McBride had “paid in goods and note of hand” and that there was a witness to this transaction and that the note had since been passed to another merchant. How- ever, when Adams commenced the cross- examination, he confronted Goister with the allegation that “I think I’ve heard some others tell/ That you had said you did not sell?” To this Goister (identified simply as “F. Owner” in McBride’s dra- matic rendering ) said, “I never told such words as that/ To John or Than, the lying brat;/ I was paid down, without a doubt,/ Thirty pounds, or thereabout.”53 Adams then called upon the alleged witness to 51 McBride, “John Merchant’s Vision of the Great Beast of Lambton,” Scene VIII, Poems Satirical & Sentimental, 30. 52 McBride, “County and Division Court Taxes,” Poems Satirical & Sentimental, 31-33. McBride’s charge of jury-rigging came during a decade when reform of the institution in Canada West had sought to do away with earlier excesses and corruption. R. Blake Brown, A Trying Question: The Jury in Nineteenth- Century Canada (Toronto: University of Toronto Press, 2009), 8-9, 133-44, 157-58. 53 McBride, Poems Satirical & Sentimental, 35-36. inside pages autumn 2013.indd 174 2018-03-03 10:38:12 PM �75corruption in lambton county, �854-58 the transaction, a man that McBride cryp- tically called ‘Harrow Fib’ whose stylized testimony explained, “That note I never saw nor drew,/ Nor was there such a note in view./ If such a note has ever been/ By me the like was never seen;/ I do deny all knowledge of it,/ And swearing false I do not covet./ The note was false if such there was,/ To cheat the plaintiff by the laws;/ For me I have no more to say,/ But that I’m clear from Rip and Rae,/ I was no partner with them there,/ Nor have I in this case a share.”54 Adams produced other rebuttal wit- nesses—“Captain Buck” and “Mr. De- ist”—who backed up Harrow Fib’s testi- mony.55 McBride’s later writings make it abundantly clear that he had little faith in his legal counsel. If McBride’s poetic ren- dering of the trial is to be believed, then it seems that Vidal gave up on a vigorous defence and resorted to making apolo- gies for his client. As McBride told it, in his dramatic retelling of events in his fi- nal summations to the jury, Vidal or “Mr. Simple” explained, “I’m sorry gents, that I must show/ How my poor client little know [sic],/ And sorry, too, that he has spoken/ Such reckless things as here be- token;/ That he’s a man of shallow wit,/ And cannot things in order put;/ Such cannot live up to the fashion,/ But this I hope will be a caution/ To every man who hears his case,/ I speak it here be- fore his face;/ I’m sorry for him, bear in mind,/ I hope you’ll use him very kind;/ He has done wrong without his knowl- edge,/ And like yourselves, ne’er got to college;/ I’m sorry for him, and distrest,/ My very heart sinks in my breast;/ What can I do but plead his case,/ You jurymen all know your place.”56 If the essence of the proceedings was accurately recounted by McBride, then the outcome was a foregone conclusion. Outside observers may have shared some of McBride’s scepticism about the proc- ess, for the more objective Sarnia Ob- server reported that “[t]he evidence was very contradictory, but the jury returned a verdict for the Plaintiff for £20.”57 McBride’s portrayal of the county judiciary was highly unflattering, not- ing that “they have their cloaks like to a raven/ Standing in courts your money cravin’;/ They’ll cock their nose, and wag their jaw,/ An point their fingers to the law.” He further cautioned, “If you’re a stranger, sir, beware,/ And of their trover acts take care.”58 In particular, McBride saved his most biting criticism for the well-connected Judge Charles Robinson who had been appointed to the bench on 30 September 1853.59 Despite being a rel- atively recent emigrant from Dublin, Ire- land, Robinson had quickly established 54 Ibid., 36. 55 Ibid., 37. 56 Ibid., 37-38. 57 Sarnia Observer, 10 January 1856. 58 McBride, “Dialogue Between The Client and the Lambton Ghost On Going From Court,”Poems Satirical & Sentimental, 41. 59 Appendix to the Fourteenth Volume of the Journals of the Legislative Assembly of the Province Canada . . . 15th February to the 1stt July 1856 19 Victoria Appendix (No. 64), 185. inside pages autumn 2013.indd 175 2018-03-03 10:38:12 PM �76 ONTARIO HISTORY his legal credentials and been appointed to the bench in Perth County before be- ing permitted to switch his posting with Judge Read Burrett of Sarnia. His rise to prominence was helped in no small part by his connections to Upper Cana- da’s chancellor, William Hume Blake, whose sons, Edward and Samuel, were apparently Robinson’s nephews.60 In his satirical recounting of his trial, McBride referred to Robinson or “Judge Blun- derbrains” in a scathing footnote “This family of Blunderbrains are very numer- ous. There are many of that name now presiding over our County and Division Courts, because we hear of them being in many parts of Canada, if reports are true. They have got many relatives also in ac- tive business whose names are Catchpoll and Cheatim, they are all connected, and are the great grand-children of one great father, whose name was Persecution, but who changed his name on coming to this country, many years ago.”61 Similarly, McBride charged that there was a con- certed effort upon the part of the offic- ers of the court to slander and defame his character, given that he was “a stranger”. It was a deft move, however, for McBride acknowledged that the tactic drew “the people’s attention away from seeing the wrong inflicted.”62 Unwilling to accept the verdict, Mc- Bride appealed his conviction by apply- ing for a new trial which was granted for 1 July 1856. McBride maintained “that he had a bona fide interest in the boat.” Both sides of the case appear to have spent more time and resources in preparing for their second showdown because of a total of eighteen witnesses were called to testify, eight for Rae and ten for McBride. As in the early trial, it was noted that “[t]he evidence adduced on the trial was exceedingly contradic- tory—making it very difficult to arrive at a satisfactory conclusion as to whom the boat ‘properly’ belonged.” As the Sarnia Observer assessed “[T]he turning point of the case seemed to be,—Was the sale of the boat made by Goister to McBride bona fide, and for good consideration, and not merely for the purpose of pre- venting the present plaintiff from receiv- ing the amount of his claim against Go- ister.”63 Unfortunately for McBride, the jury “appeared to be of the opinion that the sale was fraudulent in its nature.”64 While the second verdict was clearly a blow to McBride, he was not about to concede defeat. Indeed, he immediately began a campaign to prove that his oppo- nents had conspired against him and that many of the witnesses had perjured them- selves in court. McBride imagined what might have transpired once word of his intended challenge reached Robinson, Adams, and Vidal. He was confident that 60 Sarnia Observer, 20 February 1901; Donald Swainson, “William Hume Blake,” Dictionary of Ca- nadian Biography, vol. 9 (Toronto: University of Toronto, 1976), 55-59; J. Rordans, Upper Canada Law Directory for 1858 (Toronto: J. Rordans, 1858), 104. 61 McBride, “County and Division Court Taxes,” Satirical & Sentimental, 23. 62 Ibid., 26. 63 Sarnia Observer, 3 July 1856. 64 Ibid. inside pages autumn 2013.indd 176 2018-03-03 10:38:12 PM �77corruption in lambton county, �854-58 his collection of materials would cause a scandal and prove that perjury and cor- ruption had reigned against him in the court. Accordingly, at least his poems al- leged, there was then a concerted effort to give his “name a bad report” in the hopes that it would stop him from pro- ceeding further. McBride seems to have viewed his own erstwhile counsel to be the lesser of the three conspirators, mo- tivated more by a fear that his colleagues might be exposed for immoral and even illegal activity. McBride surmised that his counsel was troubled by his client’s apparent thirst for vengeance and felt merely that “Respected men should not be mark’d,/ In open Court with shame;/ When hidden malice, mean and dark,/ Is all that gives them blame.”65 Whether McBride had any evidence whatsoever or merely gave vent to his wild imaginings, he explained in metre how Robinson had approached Queen’s Counsel to explain that McBride was simply a troublemaker who was badger- ing the court and, having lost, was merely attempting to undermine the prestige of the judiciary. This, from McBride’s per- spective, explained why, upon presenting his case and evidence of perjury to the Queen’s Counsel, he was informed that he would need to wait until the last day of the assizes to present the matter be- fore a magistrate he called “Doctor An- gler,” which may have been a thinly veiled pseudonym for Alfred Fisher. Upon ap- pearing before the magistrate with eleven witnesses who were willing to swear on his behalf, McBride presented his case and related documents and explained that the legal nightmare in which had become embroiled had “bled my pockets till they’ll bleed no more.” To his horror, however, the magistrate, was unsympa- thetic and disputed McBride’s allega- tions of conspiracy and corruption as “All bosh!” McBride then suggested that his persecutors had managed to sway the magistrate who then violently lashed out at the complainant and his allegations and threatened to fine him for contempt and categorically refused to hear any more, either from McBride or from his witnesses.66 Having exhausted both his legal and fiscal options, McBride found himself nearly penniless. The bailiff descended upon his property seizing the goods in his store as well as his home to meet the demands of the verdict as well as all other legal costs. From McBride’s perspective, however, the forces that were against him conspired to inflict one final blow by concocting another bogus claim that would finish him off once and for all. Ap- parently at the urging of his enemies in Sarnia, a Division Court Clerk—whom McBride called “James Needy”—was dis- patched on a round trip of some thirty- four miles to secure from Robert Rae a sworn affidavit on 27 December 1856 which attested to McBride’s duplicity in asserting that he “hath parted with his property, or made some secret or fraudu- 65 McBride, “Dialogue II”, Poems Satirical & Sentimental, 52. 66 McBride, “Dialogue V”, Poems Satirical & Sentimental, 61. inside pages autumn 2013.indd 177 2018-03-03 10:38:12 PM �78 ONTARIO HISTORY lent conveyance thereof, in order to pre- vent its being taken in execution.”67 The court now assessed that McBride was ow- ing £41, 4, 9.68 Faced with these allega- tions, a mounting debt and with no more resources to fight them, McBride was per- suaded by his counsel, the same William Vidal or Mr. Simple, to concede defeat. McBride reluctantly reported to Sarnia on 17 January 1857 to be incarcerated in the debtor’s ward of the Lambton Coun- ty Jail. According to McBride, he was met by none other than Malcolm Cameron himself who personally conducted him into his new quarters and condescend- ingly recounted how “The Lord provides for those in need;/ To sit and take their ease.”69 Then in what must have been ut- terly the product of McBride’s imagina- tion, Cameron returned to debrief the co-conspirators and “thank you for un- wearied zeal,/ In working out my plan;/ We’ll fix him how, he’s fast in jail,/ This most insulting man.” Cameron then al- legedly pressured the jailor to do his best to break McBride’s spirit by feeding him substandard food. McBride, however, held out, refusing the paltry offerings un- til the third day. On that day he informed the jailor that “he never would eat what he brought him. After this he was used like a human being.”70 McBride was incarcerated, separated from his children, and left with few real options. However, his attorney, William Vidal, informed him that he could apply for relief under the Insolvent Debtors Act. By the provisions of this Act, Mc- Bride would have to surrender “up all his property into the hands of parties whom the law styled trustees.” Having done this he would then publish notices in the Canada Gazette and the local Sarnia Ob- server and write personally to his credi- tors advising him of this decision. Mc- Bride was reluctant to do so, but seeing little alternative, he followed the advice. On 18 January 1857 McBride made the necessary appeals and put forward his claims.71 Forced to give up his books, records, and “Bills Receivable,” McBride found himself once more at the mercy of the court. It was McBride’s contention that the monies owed to him, of which he claimed to have kept a careful record, amounted to “nearly double the amount of the unjust debt and law costs included.” However, although he had provided Vi- dal with money to pay for the notices in the Observer and the Gazette, the notice was printed in the latter only twice and not the required three times. Therefore, when McBride appeared before the court again to plead his case and be freed, be- cause the third notice had not been pub- lished, “the Judge would not proceed,” and McBride was again remanded until the case could be heard in another three weeks. The reason for this delay, McBride 67 McBride, Poems Satirical & Sentimental, 69. 68AO, RG 22-2766-0-1 Lambton County, County Court Appearance Book, 1853-1860, 1878, 18. 69 McBride, Poems Satirical & Sentimental, 71. 70 Ibid., 72; Sarnia Observer, 9 April 1857. 71 Sarnia Observer, 22 January 1857. inside pages autumn 2013.indd 178 2018-03-03 10:38:12 PM �79corruption in lambton county, �854-58 alleged, was that even then in the Legis- lative Assembly the Hon. John Hillyard Cameron (no relation to McBride’s nem- esis Malcolm Cameron) had introduced a bill to abolish the provisions that per- mitted debtors to go through the proc- ess and regain their freedom. The bill, McBride charged, was pushed “through with all the power with which [Mal- colm Cameron’s]... brethren of the long robe were able to help him.”72 Echoing McBride’s own claims one of the bill’s chief critics was Lambton’s representa- tive George Brown who charged “that a certain number of persons had been al- lowed to get the full benefit of this Act. Others had taken the same pains but the judges had heard some cases and post- poned others, perhaps for some personal reason.”73 Passed as it was on 31 March 1857 and taking immediate and retro- active effect, the Act quashed McBride’s hope for rapid release. However, the new legislation did allow that any debtor who had attempted to gain freedom under the provisions of the old bill would be per- mitted to have his books and properties returned to him from the trustees. Mc- Bride reported that despite this right and his own attempts to see it done the judge never acted and McBride never received his records back. As a result, he had no records of the monies owed to him and no legal means of seeing that they were collected. There only remained the debt and costs over which he had been con- victed.74 As McBride explained, as a result of the new Act, there were some 600 debtors incarcerated in the prisons of Upper Canada with no legal recourse to gain their freedom, other than by pay- ing their original debt. He argued that fear of this “lawfully acknowledged rob- bery” resulted in thousands fleeing to the United States with negative results, “This injured the creditors more than anything else, because the property left behind them was eaten up by lawyers, sheriffs, and bailiffs. But then these unfortunate debtors did right when the laws of their own country would not protect them. If they could have stopped at home, they would have saved their creditors a great deal, but putting their property into the best shape to pay them.”75 In this allegation McBride saw the Canada Company in full complicity, by encouraging immigration yet holding debts and failure to pay as a threat over the poor settlers of the Huron District who, to save themselves from incarcera- tion, were “forc’d to fly from Huron.”76 72 McBride, Poems Satirical & Sentimental, 85-87. 73 “Insolvent Debtors Act,” Globe, 7 March 1857. 74 Appendix to the Fifteenth Volume of the Journals of the Legislative Assembly of the Province of Canada 20 Victoria Appendix 44, 1857, No. 11. Charles Robinson submitted the names of Robert McBride and David Buchanan of Sarnia. Interestingly enough while Buchanan’s debt was listed at £3,675 it was further noted that his “Assets assumed at £2,925.” However, while McBride’s debt was listed at £218 there was no listing of his assets. Sarnia Observer, 26 March 1857. Donald Swainson, “John Hillyard Cameron,” Dic- tionary of Canadian Biography, vol. 10 (Toronto: University of Toronto Press, 1972), 118-24. 75 McBride, “Huron Frog Pond,” Poems Satirical & Sentimental, 88. 76 McBride, “Canada Company’s Walking Beam,” Poems Satirical & Sentimental, 92. inside pages autumn 2013.indd 179 2018-03-03 10:38:12 PM �80 ONTARIO HISTORY In this way he tied the issue of “land jobbing” in the Canada Company lands with those of land speculators and land policies that had displaced the settlers in Haldimand. It was, from McBride’s per- spective, an officially sponsored outrage that was controlled by a small but pow- erful elite that dominated in the areas of politics, land speculation, and the judici- ary, something other critics also seemed to assert.77 McBride would languish in prison until March 1858. At this point he was something of a broken man who had no other recourse than to sign a certificate of surrender of all of his property to cover not only the original penalties and costs found against him but also for the weekly allowance that had to be paid for his up- keep while in prison. With no records in his name and now no property, Mc- Bride left Sarnia a free but penniless man on 31 March 1858.78 McBride’s experi- ences coloured his perceptions of the world around him and appear to have left him scarred by a deep-seated suspicion of most people, counselling his sons to “Keep your father’s house and home,/ Be not led off to stray and roam/ Where words, sweet sounding, strike the ear;/ Such sweet-lipp’d scoundrels, keep them clear . . .”79 Upon his release from prison, Mc- Bride found employment as a school teacher in Warwick Township, and began his forays into publishing and honing his poetry.80 Like hundreds of others across the province, McBride was captivated by the news of the petroleum boom in the heart of Lambton County at Oil Springs. While the first strike had occurred back in 1858, the first major oil boom began in early 1862. McBride and his sons left Warwick for the oil fields to set up shop along with many other artisans, pro- fessionals, and entrepreneurs. Finding themselves in the centre of a haphaz- ard community of some 1,600 persons amidst a scene of horrendous ecological degradation, the McBride family would soon face another tragedy.81 It was inevi- table that squalid living conditions would engender disease and, by the end of June 1862, one witness explained, “There has been a great deal of Typhoid Fever here whilst I was home. Several have Died.”82 The same correspondent later explained “I think the water is the great cause of it, it is so bad & then there is so much veg- etable matter decomposing in the Woods 77 “Insolvent Debtors Act,” Globe, 7 March 1857; A Doubly Disappointed Settler, “More Land Job- bing!,” Globe, 6 July 1857; “Opinions of the Press: The Next Election,” copied from the Haldimand Inde- pendent in Globe, 10 November 1857. 78 AO, RG 22-2766-0-1 Lambton County, County Court Appearance Book, 1853-1860, 1878, 18. 79McBride, “Lines on the Death of Dog Prince, and his Advice to His Young Masters,” Poems Satirical & Sentimental, 190. 80 Petrolia Advertiser, 21 November 1895; Canada Manuscript Census, 1861, Canada West, Lambton County, Warwick Township, Div. 2, page 8; McBride, Orange Minstrel (1860), cover page. 81 Burr, “‘Oil Mania’: Colonial Land Policy, Land Speculation, and Settlement in Enniskillen Town- ship, 1830s-1860s,” 272. 82 E.W. Watkins, letter of 27 June 1862, to his wife. Archives Western University, Letters of E.W. Wat- inside pages autumn 2013.indd 180 2018-03-03 10:38:12 PM �8�corruption in lambton county, �854-58 around us.”83 Whatever the circumstanc- es, McBride’s eldest son John died in June 1862 at the age of 20. Tragedy would also beset his surviving son, William. He was engaged to marry a local woman who died unexpectedly on a visit with her family in Oakville. The elder McBride recorded both tragic tales in two poems he included in his magnum opus Poems Satirica1 & Sentimental which appeared in 1869. Inconsolable, William never married.84 As of 1870 McBride had stopped publishing his volumes of poetry. How- ever, the following year, in contrast to his apparently more staid and less pedantic neighbours, he informed the census taker for Oil Springs that his occupation was “Poet Writing Poems & Songs on the Evil & good transpiring in Canada.”85 But by then, he had begun to move onto other things. The boom that Oil Springs had enjoyed petered out just as quickly as it had started. The village was left a mere shadow of its former self. Villagers, however, continued to foster hopes and schemes that would see it reemerge from the economic doldrums. McBride’s name was associated with various business dealings that pertained to Oil Springs, such as the Dresden and Oil Springs Railway, and the equally elusive Huron and Erie Railway. Early in 1878, McBride was elected as chaplain of the Lambton Orange Lodge No. 6 in Petrolia.86 Early in 1891, a correspondent to The Cana- dian Bee Journal made note of a recent visit to the McBrides’ oil fields and com- mented at being “astonished to find on the premises about 60 colonies of bees” in the best order. It was his son William McBride, though, who was the real genius behind the honey business and who had sold over fifty dollars in honey the previ- ous year.87 For the most part, the last two decades of Robert McBride’s life remain obscure. Poet, arch-Orangeman, polemi- cist, poet, entrepreneur, debtor, zealot, school teacher, and one time inspector of linens, died on 7 November 1895 at Oil Springs. He was 84. His son duly report- ed the death to local authorities. There had been no attending physician and the cause of death was attributed to “old age.” He is presumably buried in Oil Springs, but his grave is not marked.88 kins to his wife, 1861-1867, M 268. 83 Ibid., letter of 12 September 1862. 84 McBride, “Obituaries,” Poems Satirical & Sentimental, 273 and “William and Susan,” Poems Satiri- cal & Sentimental, 225-26. 85 Canada, 1871 Manuscript Census, Oil Springs, 21. R. McBride. The Canadian Orange Minstrel! For 1870: Written for the Purpose of Keeping in Remembrance the Dark Doings and Designs of Popery in this Country (Toronto: P.H. Stewart, 1870), ii. McBride, “Dissertation,” Poems Satirical & Sentimental, 293- 94. 86 Petrolia Advertiser, 9 October 1874, 19 February 1875, and 11 January 1878. 87 The Canadian Bee Journal, vol. 7, no. 1, 1 April 1891, 472. 88 Ontario Vital Records, Schedule of Deaths, 1895, Oil Springs, 008734, “Robert McBride”. Wil- liam McBride immigrated to the United States in 1907 and ended up in Detroit Michigan. Canada Bor- der Crossings: From Canada to U.S., 1907, Port Huron, 29; 1910 United States Federal Census, Michi- gan, Wayne Co., Detroit City, 1st Ward, 6945. inside pages autumn 2013.indd 181 2018-03-03 10:38:12 PM �82 ONTARIO HISTORY To what extent McBride’s trials and tribulations were due to a conspiracy to punish and silence “[t]his most insulting man” is difficult to say with any certainty. From his own point of view, he was the hapless victim of greedy politicians and a corrupt judiciary that closed ranks when threatened with exposure. Whether he was willing to admit to it, however prin- cipled he believed his stance to have been, the campaign allegedly launched against him had much to do with his dogged refusal to work within the predominant system of quid pro quo that was part and parcel of the political and economic mechanisms of Canada West. His failure to support Malcolm Cameron’s election after having been awarded the position of postmaster did not seal his fate, but it certainly contributed to it. The evidence of McBride’s case that is found in surviv- ing newspapers and court records and the corroboration, albeit one-sided and strongly partisan, provided by his poems gives us a unique glimpse into the inter- actions of the legal system of Lambton County and Canada West as a whole. The poems and their supplementary no- tations as well as McBride’s more prosaic commentaries suggest something about the complex interconnectedness of the political, legal, and land systems. While the claims McBride made are difficult to judge from a distance of 150 years, they do make it clear that personal and politi- cal connections continued to matter. In the end, the poems shed light on the lone figure of McBride himself, an immigrant who was fully engaged in the political process while attempting, in his own way, to improve the lot of his adopted prov- ince. inside pages autumn 2013.indd 182 2018-03-03 10:38:12 PM 
work_a6dwf2h5bramvbd3igg2vsudk4	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221738716 Params is empty 221738716 exception Params is empty 2021/04/06-03:20:37 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221738716 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:37 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_a7kgzsyrgvfd7grqlwalff752a	----	Distributive justice with and without culture This is a repository copy of Distributive justice with and without culture. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/99075/ Version: Accepted Version Article: Jackson, William Anthony orcid.org/0000-0001-5194-7307 (2015) Distributive justice with and without culture. Journal of Cultural Economy. pp. 673-688. ISSN 1753-0369 https://doi.org/10.1080/17530350.2015.1054414 eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Unless indicated otherwise, fulltext items are protected by copyright with all rights reserved. The copyright exception in section 29 of the Copyright, Designs and Patents Act 1988 allows the making of a single copy solely for the purpose of non-commercial research or private study within the limits of fair dealing. The publisher or other rights-holder may allow further reproduction and re-use of this version - refer to the White Rose Research Online record for this item. Where records identify the publisher as the copyright holder, users can verify any specific terms of use on the publisher’s website. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ DISTRIBUTIVE JUSTICE WITH AND WITHOUT CULTURE William A. Jackson Department of Economics and Related Studies, University of York, York YO10 5DD, UK Email: william.jackson@york.ac.uk Abstract Academic treatments of distributive justice normally adopt a static approach centred on resource allocation among a set of individual agents. The resulting models, expressed in mathematical language, make no allowance for culture, as they never engage with the society’s way of life or the moulding of individuals within society. This paper compares the static approach to distributive justice with a cultural one, arguing that a case for redistribution should rest upon its cultural effects in assisting well-being and social cohesion. Unless we recognise culture, we can have little understanding of why inequalities matter, where they come from, and how they might be reduced. Redistribution may be motivated by universal value judgements taken from external sources, but it also entails internal cultural changes that refashion social relations through cumulative causation. In practical terms, it has to penetrate beyond reallocating resource endowments to bring revised attitudes in a society less tolerant of unequal outcomes. Egalitarian reforms will flourish only if they generate and reflect an egalitarian culture. Keywords: Culture, distributive justice, inequality, egalitarianism, cumulative causation, welfare state mailto:william.jackson@york.ac.uk - 1 - Introduction Equity and equality are much discussed in the academic literature on distributive justice, but from a narrow perspective. Analysis revolves around allocating resources among a set of individual agents: egalitarians would choose a more even allocation over a less even one. To simplify things, inequality is often condensed to one dimension (usually income or wealth) and equitable distribution becomes a cake-dividing puzzle, as if an outside observer could decide on fair shares. The simplified framework facilitates mathematical modelling at the expense of putting distribution within its social and historical context. Omitted from the allocative view of equality is any mention of culture defined as either a way of life or process. Culture as a way of life refers to everyday activities, attitudes and beliefs. Exclusive stress on resource allocation neglects the non-material elements of a way of life, along with the social consequences of inequality. Culture as a process links the individual and social levels to document how the social environment shapes human beings – it deals with what economists would call preference formation. Static models of redistribution assume fixed preferences from the outset with no effort to explain their origin or social background. Important issues are brushed aside: the roots of inequality, how it is perpetuated, how it channels people’s lives, why we care about it, and how we might reduce it. The cultural vacuum shrinks egalitarianism down to an abstract assignment of resources among an atomistic population of individual units. A wider view of equality would recognise culture by looking at a way of life rather than resource allocation and asking how unequal societies come forth. History, cumulative causation and belief systems could then claim their due place in the discussion. If we argue that equality transforms society by fostering social solidarity and communal values, then we make a cultural case for it, where it becomes both cause and effect of changing attitudes. Preferences cannot then be fixed, as the desire for equality turns on how it changes them for the better. Distributive justice branches out beyond an allocation problem. - 2 - Culture as a way of life includes attitudes to inequality held by the general public. A cultural approach should acknowledge everyday notions of justice and injustice that have little to do with academic theories but appear regularly in conversation, opinion polls, voting behaviour and the media. The public may commend inequalities, keep silent about them (thereby tacitly accepting the status quo) or criticise them as being unfair. Much disapproval of inequality is voiced by members of the poor against other poor people thought to have secured small but unjustified advantages; it can be heard in the language of ‘scrounging’, ‘free-riding’, ‘getting something for nothing’, ‘workers versus shirkers’ and ‘strivers versus skivers’. Similar disapproval could be directed against the rich, especially those with inherited wealth and unearned incomes, although the complaints tend to be rarer and more muted. Popular sentiments about inequality yield an informal, bottom-up brand of distributive justice that stands beside the top-down, academic brand. The present paper examines the significance of culture for distributive justice, formal or informal. It begins by looking in further detail at the static, culture-free approach, before moving on to alternative, culturally based arguments and locating them within a different theoretical framework. The last two sections consider the practical implications of a culturally sensitive viewpoint and draw general conclusions. Distributive justice without culture Academic debates on distributive justice are apt to treat it as a topic in analytical philosophy – the aim is to find logical decision rules to allocate resources optimally among individual agents typically modelled as rational utility maximisers with fixed preferences (Roemer, 1996; Sen, 1997; Moulin, 2003). The individualistic method addresses inequalities among individuals but pays less attention to social classes, structures or institutions, which are secondary and noticed only if they impinge on distribution at the individual level. Since analysis takes place inside a single period, redistribution would have to be a one-shot - 3 - reallocation of resource endowments. Nothing is said about how the current allocation emerged, why it has persisted or how it might evolve: assessment is hemmed within a timeless, artificial realm. Value judgements in the Benthamite, utilitarian tradition would select individual utilities as the yardstick of welfare and maximise the sum of utilities over the whole population to achieve the highest possible total. This may not be egalitarian, for it values total utility regardless of distribution and awards priority to agents who produce the most utility from given resources (Sen, 1997, Chapter 1). Equality would be optimal only if everybody had the same utility function with diminishing marginal utility; otherwise the optimum is unequal and may endorse discrimination against the sick, disabled, elderly, etc. A greater degree of egalitarianism requires a concave objective function that values even distributions of utility above uneven ones – the more concave, the more egalitarian (Moulin, 2003, Chapter 3). Judgements are made first about the utility distribution and then, through utilities, about the distribution of incomes and other resources. As with individual preferences, the origin of egalitarian values passes unremarked and we are not told why we should want equality or how we could attain it. Distributive justice based solely on utilities (‘welfarism’) has obvious drawbacks: utility is poorly defined and not directly observable, may be an unreliable indicator of well-being, and may not represent rational behaviour. Critics of welfarism from within the static perspective have proposed adding non-utility information into welfare assessments so as to supplement or replace utility: Sen’s capability approach, for example, replaces utility with the capability to function and participate in social activities (Sen, 1993). Non-utility information offsets the pre-eminence of utilities and creates space for social determinants of personal capabilities. The capability approach is essentially individualistic, however, and says little about culture, social structures or ways of life (Jackson, 2005; Dean, 2009; Sayer, 2012). In order to get further away from welfarism, one needs a deeper account of culture and social context. The static perspective follows the linear sequence in Figure 1. At the starting point comes distributional information on incomes, goods and other resources. Under welfarism, this must filter through individual preferences before social welfare can be assessed, introducing - 4 - utilities as another stage in the sequence. Any case for redistribution comes from basic value judgements about the distribution of utilities. The external source of the values leads to a fact/value split in which a ‘positive’ analysis of resource allocation is transmuted into a ‘normative’ blueprint for redistribution when values are appended. Both individual preferences and basic value judgements stay fixed and distinct from each other, without interaction or historical development. In non-welfarist variants of the static perspective, non-utility information can enter directly into welfare assessments that reach beyond utilities alone (Sen, 1982, Part IV). The ethics remain individualistic, because value judgements still rest on individuals, as against social structures, classes or other groups. Adherence to the linear sequence gives the literature on distributive justice a strong family resemblance, even though it is portrayed as a series of welfarist and non-welfarist alternatives. Figure 1: Static distributive justice Positive Normative Basic value judgements Income, Individual utilities Social welfare Egalitarianism goods, etc. Non-utility information Figure 1 lends itself to mathematical expression but cannot readily accommodate culture as a way of life or process. Ethics are separated from the past and future to be collapsed into a - 5 - technical problem of maximising an objective function for an anonymous bunch of individuals at a single, unspecified time. The individualistic method and dearth of social structures mirrors how orthodox economic theory has become desocialised (Jackson, 2013). Social influences on the individual are at best implicit, playing no overt part in the analysis, and ethics must hinge on individual welfare. Culture as a process, whereby individual preferences are formed within society, would swap the linearity of Figure 1 for circularity that permits backward causation from the social to the individual. A cultural outlook demands an alternative vision awake to the social formation of preferences and values. Cultural arguments for equality Disquiet about static, ahistorical theorising has long been voiced, dating back to the onset of utilitarianism and classical economics in the early nineteenth century. Criticism came from writers in the Romantic tradition who focused on the neglect of history and culture in economic theorising (Ryan, 1981; Löwy, 1987; Löwy and Sayre, 2001; Connell, 2001; Jackson, 2009, Chapter 3). They saw economists as promulgating mechanistic theories that erased the human life from economics and condoned the harsh social conditions bred by early capitalism. Many of these critics were prominent literary authors and commentators (including Edmund Burke, William Blake, Samuel Taylor Coleridge, William Cobbett, Thomas Carlyle, Charles Dickens, Elizabeth Gaskell, John Ruskin and Matthew Arnold), but they stood outside the economics profession and had little sway over the practice of economics. Few of them are regarded as egalitarians – their ideal was often to have benevolent, paternalistic leadership rather than equality. The cultural critiques do not preclude a case for equality, though, and can be turned in that direction. An early statement of the cultural arguments for equality was made by Matthew Arnold in his 1878 essay Equality (Arnold, 1986). Equality, for Arnold, is to be valued not as an abstract principle or natural right but for its contribution to social cohesion and the - 6 - complexion of everyday life. A society marked by extreme inequalities of income, wealth and status loses the shared interests and experiences needed to forge common values and friendship among all individuals and groups. Social divisions are institutionalised into a permanent hierarchy with adverse effects on both rich and poor. The rich, enjoying inherited fortunes, are spoiled from birth, relieved of any constructive social purpose, flattered and pampered by ingrained deference, and subject to the temptations proffered by idleness and lavish material wealth. The poor face difficulties of subsistence, lack the material and social advantages possessed by their fellow citizens, find themselves at the bottom of the hierarchy, and become excluded from full participation in society. Social divisions when established are taken for granted in what Arnold termed a ‘religion of inequality’. Beliefs supportive of the status quo enter the national culture, thus legitimising the social order and suppressing debate over reforms. The questions raised by Arnold were discussed at length by R.H. Tawney in his classic book Equality, first published in 1931 (Tawney, 1964). As an economic historian he was attuned to cultural thought, having stressed how cultural and religious values guided capitalist economic development (Tawney, 1920, 1926). Inequality, in Tawney’s view, can never just be about uneven distribution of resources or asymmetries among specialised economic functions: these are at the core of inequality but far from the whole picture. Enquiry must extend beyond the material dimension to embrace the social structure of a society, as well as its beliefs and values. An unequal society is unequal not only in its resource allocation but in its social roles, personal relationships and attitudes – various dimensions are entwined to make up a generalised hierarchy reproduced across generations. The dominant values justify inequality and confirm it as the natural order, so the only route to greater equality is to challenge them and loosen their grip. If they endure, then progress towards equality will be modest at best and prone to counter-attack. Within economics, the role of culture in preserving inequalities has been emphasised by institutionalist writers (Galbraith, 1992; Stanfield, 1995; Dugger, 1996; Zafirovski, 2000; Brinkman and Brinkman, 2005; Streeck, 2011). Pivotal here are the ‘enabling myths’ that rationalise disparities in income and status, asserting that people receive their due rewards and should be happy with inequality (Dugger, 1998, 2000). Privileged elites supposedly - 7 - deserve their good fortune through their superior abilities, skills, intellect and knowledge. The poor merit their lowly status because they lack the talents, enterprise and application essential for success: they are the culprits of their own misfortune in a fair world. Lower social classes will be more likely to go along with the status quo if they can be persuaded to defer to the upper classes and try to emulate them. Spread throughout a society, these attitudes ratify a hierarchical way of life. The privileged rest at ease, sure that their conspicuous wealth and consumption will be accepted and even admired by the mass of people below – what Thorstein Veblen termed the ‘leisure class’ lives at a standard miles above the average without having to work and without having its idleness queried (Veblen, 1899). Hierarchies built into social attitudes cannot be dismantled at a stroke by redistributive measures; as products of culture they can be removed only through cultural change. Egalitarianism has to take us from a culture of enabling myths to one that cherishes equality and rejects social divisions. Outside economics, the cultural aspects of inequality have been highlighted by recent social theory, with the work of Pierre Bourdieu as the exemplar (Swartz, 1977, 1997, Chapter 8; Savage, 2000, Chapter 5; Crompton, 2008, Chapter 6). For Bourdieu, inequalities in culture sustain and legitimise inequalities in income or wealth: economic capital is accompanied by other kinds of capital (social, cultural, symbolic) that have parallel inequalities (Bourdieu, 2002). Privileged social classes are sanctioned by property ownership but cement their status through their cultural milieu, which gives access to the arts and plenty of free time for artistic connoisseurship. Cultural inequalities can be replicated by informal means, even when education is formally open and meritocratic (Bourdieu and Passeron, 1990). Teaching people about the arts would disseminate knowledge but would not tear down the cultural walls between classes. Unequal distribution of cultural capital finds an outlet in consumer tastes that take on a layered quality delineated by social hierarchies (Bourdieu, 1984). Bourdieu’s work on consumption has affinities with Veblen’s institutional economics, exploring the class divisions in consumer behaviour and the inducements for ordinary people to covet the lifestyle of the rich (Campbell, 1995; Rosenbaum, 1999; Bögenhold, 2001; Trigg, 2001; Shipman, 2004). Consumption acquires symbolic value over and above any value in fulfilling material needs, so theories dwelling on the material - 8 - dimension will be blinkered. A true understanding of inequality must deal with its numerous interrelated dimensions and how it has been socially constructed. Common features of the cultural arguments The writers who have discussed inequality from a cultural viewpoint belong to no single movement and advocate no single theory; they are scattered across academic disciplines, some standing outside academia, and cannot be categorised as a school of thought. They nonetheless share ideas that distinguish them from the egalitarianism put forward in static notions of distributive justice. Without wanting to play down the differences, one can summarise common features: Multidimensionality - Cultural arguments for equality apply to a society’s way of life, not the allocation of incomes and other resources. Several dimensions are involved, so it is impossible to reduce inequalities to a single, measurable scale. Welfare assessment must go beyond selecting the ‘right’ dimension (utility, income, goods, etc.). Social structures - Appraising social structures is fundamental to a cultural approach. Egalitarian arguments make little sense if they overlook how individuals are socialised into a hierarchical, structured way of life (culture as a process). Ideology - Unequal arrangements are defended by an ideology that depicts them as inevitable and banishes more equal alternatives (enabling myths, a religion of inequality). The ideology purports to be self-evident and impervious to serious criticism, a distillation of eternal realities. Preference formation - Beliefs that encourage acquiescence in an unequal society will change individual behaviour. Preferences should not be viewed as fixed, and the origin of - 9 - beliefs should be considered. A population brought up to abide by inequalities will actively participate in their reproduction. Adverse effects on the individual - Long-standing inequalities harm all individuals, both rich and poor, and damage their social relationships. The rich become selfish, arrogant and complacent in the assurance that their advantages are warranted, as are the disadvantages of those beneath them. The poor become segregated, listless, resigned to their fate but perhaps envious of their superiors and aspiring to join the rich. Adverse effects on society - Inequality yields a less cohesive and harmonious society. Lower classes, excluded from participation in social activities, will feel alienated. Upper classes, facing the resentment of the poor, will retreat into their own social circles and stay as far from the poor as they can. Instead of being cohesive, society will fragment into separate, sometimes antagonistic groups. Power and authority - Culture as a way of life incorporates the asymmetrical power and authority that maintain inequalities and block attempts at reform. Reallocating resources is necessary but insufficient for greater equality, which depends on recasting institutions and reducing tolerance of big disparities in economic and social power. Internalised values - From a cultural perspective, egalitarian values cannot merely be tacked on to an otherwise value-free analysis. Values that influence behaviour will have to be internalised into the culture. A quest for equality must emerge through cultural change, even if it is not unique to the society and originates in universal value judgements. Cumulative causation - Cultural changes occur in historical time, subject to cumulative causation. Whenever inequalities are established, they will increase through economies of scale, competitive advantage, concentrated power and property inheritance. Egalitarianism must seek to reverse the cumulative trends, creating a virtuous circle of greater equality. Outcomes not opportunities - Arguments for equality of opportunity are too weak to generate an egalitarian culture. Under equal opportunities, people have the same life chances - 10 - but may ‘choose’ unequal outcomes that are deemed acceptable. A thoroughgoing egalitarianism should have a desire for equal outcomes at the forefront of social attitudes. Distributive justice with culture The cultural arguments for equality see it as more than a trait of a population of individuals, given that it changes people’s behaviour and aids their relationships. If we are to acknowledge how preferences are formed and how values persist within the ongoing social context, we need a non-reductionist social theory that encompasses agency-structure interaction: individual agents can then be shaped within society and social structures produced and reproduced through individual agency (see, for example, Bourdieu, 1977 and Giddens, 1984). Similar social theories are set out by critical realist writers, who avoid reductionism and pay heed to culture and agency-structure interaction when making assumptions about the nature of reality (Bhaskar, 1979; Archer, 1995, 1996; Lawson, 1997, Part III). A non-reductionist stance implies that Figure 1 must be inadequate, as it omits social structures and imposes fixed individual preferences as the arbitrary basis for value judgements. Once social structures are a level of analysis in their own right, coeval with the individual level, methodological individualism is ruled out. Values may not be concerned only with individual states but with personal relationships, group interests and social cohesion. Egalitarianism becomes a circular process of cultivating and preserving values woven into the fabric of society. Figure 2 shows the resulting theoretical framework. At the heart lies the interplay of agency and structure augmented by egalitarian values, such that the wish for equality impresses upon current behaviour and institutions: agency upholds egalitarian values, while social structures embody egalitarian reforms. Basic value judgements may still enter from outside as the catalyst for the internal forces driving egalitarianism. Practical benefits - 11 - emanate on the right of Figure 2 in a more cohesive, less divided society and a more even distribution of incomes, capabilities and other outcomes. Figure 2: Cultural versions of distributive justice Egalitarian reforms Social structures Social cohesion Basic value judgements Individual incomes, Egalitarian values Individual agents capabilities, etc. Unlike the linear sequence of Figure 1, egalitarianism in Figure 2 is a self-reinforcing process occurring in historical time. The case for equality, if it is to have practical success, must be absorbed into values and reproduced through cultural transmission. As soon as the relevant values enter the culture, the positive/normative barrier breaks down, with basic value judgements no longer inserted at a late stage into a positive analysis. Values bearing on social conditions must be present within the society and not limited to a hypothetical assessor. Internalisation of values stops short of moral relativism that abandons universal principles and treats each society as morally unique. From a relativistic angle, societies differ in their values with no presumption in favour of equality – Figure 2 could be adapted to inegalitarian values and reforms. Unequal societies have their enabling myths that justify inequality and - 12 - spread the associated values as widely as possible among the public. A generic case for equality has to include cross-cultural values external to the societies under consideration. Many of the cultural arguments summarised above are global and proclaim the benefits of greater equality at any time or place. They appeal to culture but keep away from relativism that might be neutral towards distribution. Absolute arguments for equality are supported by the recent empirical literature that examines the effects of inequality on health and well-being (Hagerty, 2000; O’Connell, 2004; Neckerman and Torche, 2007; Phelan, Link and Tehranifar, 2010; Wilkinson and Pickett, 2010; Oishi, Kesebir and Diener, 2011; Cooper, McCausland and Theodossiou, 2013, 2015). The main finding is that more equal societies fare better on a range of welfare criteria, irrespective of local variations in culture and institutions. Basic value judgements making a universal case for equality can be introduced from outside a society, as in Figure 2, and then call forth an egalitarian culture within the society. External in origin, they must percolate through the culture before they can influence behaviour. Being circular, Figure 2 has no starting or finishing point. Nor does its circularity go in one direction – this can vary according to how we interpret things. Suppose, for example, that we begin with individual agents at the lower right-hand side of Figure 2. In the agency-structure relation the initial causal thrust is upward and causality seems anti-clockwise: individual agents reproduce social structures, which preserve egalitarian reforms, which help to sustain egalitarian values, which impact upon individual agency and preferences. Causality comes full circle and starts all over again. Suppose, on the other hand, that we begin with social structures at the upper right-hand side of Figure 2. Now the initial causal thrust is downward and causality seems clockwise: social structures mould individual agents, who have egalitarian values, which promote egalitarian reforms, which alter social structures. Causality again comes full circle but this time in the opposite direction. The complex, two-way interaction means that motion can be perceived as going either way: an individualistic interpretation suggests anti-clockwise motion, a structural interpretation clockwise. Figure 2 entails neither individualistic nor structural reductionism, and the two circular motions are equivalent. - 13 - The ethics in Figure 2, thanks to their avoidance of individualistic reductionism, are not confined to comparisons among individuals. In a circular process of cultural reproduction we cannot pick out fixed individual preferences as the foundation for allocative decisions. Basic value judgements enter into the circular causality that determines the society’s way of life. Without an individualistic benchmark, egalitarian values are released from the obligation to boil everything down to the individual level and can embrace factors other than individual welfare. Judgements can be made directly about social structures and relationships: ethics can evaluate social hierarchies, power, work organisation and family arrangements. Individual welfare loses its monopoly on how social outcomes are judged, and appraisal of structural context comes into play. Neither individual nor structural levels have ethical sovereignty. Figure 2 does not compel us to choose among income, utility and other dimensions, an issue that preoccupies much of the standard literature on distributive justice. The urge to have one dimension comes from the desire to quantify welfare on a single scale. A cultural approach deals with a society’s way of life that comprises various dimensions, none of which has supremacy – electing to operate on a single one would be misguided. Material resources are not exhaustive in the assessment of welfare. Social justice should venture beyond distribution of material resources to take in cultural matters such as social inclusiveness, status differences and recognition of minority groups (Fraser, 1995, 2003; Sayer, 2005; Lister, 2007). Multiple strands of inequality can exist in themselves without being weighted and combined into an overall welfare score. It remains useful to measure inequalities in income, wealth, etc., and empirical studies retain their importance, though immeasurable dimensions of inequality should also be given due attention. The theory in Figure 2 is stratified, with at least two levels of analysis – individual agents and social structures – that are irreducible to each other. Inequalities pertain not only to persons but to impersonal roles and positions within firms, government, the media and other institutions. Power concentrated among a few owners or managers will determine the working environment and have repercussions for society. A thoroughgoing egalitarianism must be alert to roles and positions as well as personal circumstances – the two are bound together, and sole emphasis on the personal level will be futile in curtailing inequality. - 14 - Structured relations among social classes and other groupings lead to asymmetries of property ownership, social/cultural capital and power. If huge inequalities are embedded in social structures, then the chances of greater equality at the personal level are minimal. Egalitarianism has to stretch across many levels of analysis and include structural inequalities within its remit. Practical implications Although analyses of distributive justice are frequently ahistorical, the likelihood is that we are discussing a modern capitalist economy defined by private ownership of capital and ubiquitous markets for labour and finance. Capitalism exists in several varieties, but they all approve of private capital accumulation as the vehicle for economic development. Simultaneously with the amassing of private capital comes the rise in private property incomes and wealth, with burgeoning inequality when wage incomes lag behind. A capitalist economy, left unchecked, sponsors income and wealth gaps that get ever bigger and do not converge on a balanced equilibrium (Wade, 2004; Rigney, 2010, Chapter 3; Piketty, 2014). The gaps become institutionalised and justified by the culture, in the inegalitarian counterpart of Figure 2. While the poor lose out, they are encouraged to be satisfied with any real income gains from economic growth or ambitions to join the rich. Inegalitarian attitudes do seem to have thrived lately, for the ballooning inequalities in developed countries have been accepted by the general public and not met with widespread opposition (Horton and Bamfield, 2009; Kelly and Enns, 2010; Unwin, 2013, Chapter 3; Shildrick and McDonald, 2013). Whether or not the public actually support inequality, they have been willing to comply with trends that benefit the rich and hurt the poor. The lack of visible concern gives the impression that the rich somehow deserve their rewards, even though the reasons for this are seldom clarified (Rowlingson and Connor, 2011; Sachweh, 2012). In a culture accustomed to income and wealth accumulation, perceptions of inequality - 15 - will be dulled or biased and people may underestimate its extent (Norton and Ariely, 2011; Cruces, Perez-Truglia and Tetaz, 2013). Any push towards progressive redistribution will happen only when attitudes swing back to egalitarianism. Pursuit of equality within a capitalist economy is possible but faces an uphill task. The role of the state will be crucial if ambiguous. As Karl Polanyi pointed out, the state created capitalism (contrary to libertarian doctrines about spontaneous markets) and introduced welfare measures afterwards in order to soften its sharp edges – state planning gazed first and foremost on markets rather than social policies (Polanyi, 1944). Radical and Marxian writers have been sceptical of state activity under capitalism and viewed the welfare state as a palliative that makes concessions to workers’ interests but serves to legitimise the economic system (Gough, 1979; Mishra, 1981, Chapter 5; Offe, 1984; Pierson, 2006, Chapter 2). Less sceptical were R.H. Tawney and Richard Titmuss, who saw the welfare state as a motor of social and cultural change with genuine transformative capacity (Reisman, 1982, Part II, 2001; Alcock et al., 2001, Part 3; Deacon, 2002, Chapter 1). Given the political will and democratic mandate, the state could implement a ‘strategy of equality’, in other words a comprehensive programme of measures designed to curb disparities of income and wealth (Tawney, 1964, Chapter IV). Components of such a strategy would include welfare benefits, progressive taxation, socialised health care and education, subsidised public utilities, full employment policies, new types of property ownership, and reforms to the organisation of work. As it unfolded, the strategy would gather momentum through the cumulative causation in Figure 2, which would halt and reverse the inegalitarian tendencies of laissez-faire capitalism. Recent income trends in developed countries hint at both the feasibility of redistributive measures and the obstacles to them. Empirical evidence divides into two contrasting periods: from the 1940s to the 1970s the personal income distribution became more equal and inequality measures fell, whereas from the 1980s onwards the inequality measures have risen as personal incomes have become more unequal (Caminada and Goudswaard, 2001; Alderson and Nielsen, 2002; Brandolini and Smeeding, 2009; McCall and Percheski, 2010; Atkinson, Piketty and Saez, 2011). Factor incomes display a similar pattern, with a rising wage share of national income until the 1970s, followed by a falling wage share ever since (Kristal, 2010; - 16 - Wolff, 2010). The earlier trend towards equality coincided with expansion of the welfare state during the post-war decades and high employment guaranteed by Keynesianism. It demonstrated that, despite the capitalist environment, egalitarian policies can succeed. The reversal of trend coincided with the turn to neo-liberalism from the 1980s, which brought welfare retrenchment, withdrawal of progressive taxation, privatisation of public services and utilities, deregulation of finance, deflationary macroeconomic policies, and rejection of the Keynesian commitment to full employment (Glyn, 2006; Irvin, 2008). Neo-liberalism has restored the inegalitarian counterpart of Figure 2, supplanting egalitarian values and reforms with inegalitarian ones. Even the financial crisis prompted only marginal adjustments rather than a search for alternatives, and the surrounding culture stays intact (Allon and Redden, 2012; Glynos, Klimecki and Willmott, 2012). Conventional wisdom is comfortable with enormous personal incomes, coupled with individualistic attitudes that spurn social cohesion and collective identity. Attempts to regain the path of greater equality would have to slow down and reverse cumulative changes propelling the economy in the other direction. Cumulative causation is self-reinforcing and never ends of its own accord – to stop it requires some outside agency or event to intrude and disturb the circle (Skott, 1994; Berger, 2009; Pluta, 2010). A renewed trend towards equality will come about only through dedicated government policies, a prospect that seems distant in today’s political climate but might ultimately be provoked by the widening gulf between rich and poor. Part of a new strategy of equality would be to revive the welfare measures and progressive taxation weakened under neo-liberalism. Tawney was aware that these policies on their own are insufficient for an egalitarian redrawing of society – they are vital to any strategy of equality but fail to tackle the causes of inequality in the private sector (Martin, 1982; Elliott and Clark, 1989). Stalwart egalitarianism cannot afford to ignore a private sector that authorises vast discrepancies in income and status: it would have to open out control of industry, give employees more clout over their working lives, and redress gross imbalances of power. Marketisation and commodification would have to be resisted, leaving room for decommodification that bolsters non-market sectors of the economy (Williams, 2005, Part III; Vail, 2010). In the long-term vision of Tawney and Titmuss, the gradual spread of an egalitarian culture could underpin evolutionary transformation towards a more cooperative, less competitive society. At the - 17 - moment this vision appears over-optimistic, but it still offers the best hope for attaining greater equality within a capitalist economy. Conclusion Static concepts of distributive justice, which dominate the academic literature on the subject, are hampered by their neglect of culture. When expressed in mathematical models, distribution becomes a timeless allocation problem, as if an omniscient ethical advisor could step up and reallocate resources to ensure fair shares. Such ahistorical, non-cultural theory has little truck with the social consequences of inequality and, indeed, says nothing about why we might be egalitarians. The result is a sterile exercise in meeting an objective that could quite as easily be inegalitarian. It remains unclear how the chosen resource allocation could be reached, especially if it differs dramatically from the current one. The political ramifications of reassigning property rights are sidestepped, and the cultural aspects of inequality are absent from the theoretical models. Belying its apparently rigorous treatment, distributive justice shrivels into a one-dimensional mode adopted chiefly for analytical convenience. Greater equality will occur only with a shift away from the ideology of laissez-faire capitalism, which tolerates and even celebrates inequalities. Other belief systems, less tolerant of inequality, can be found in social democracy, socialism, communism, Marxism and so forth. Egalitarianism in a capitalist economy could be carried out through progressive redistributive measures and social policies but would need a switch from neo-liberalism back to the social democratic values that held sway during the mid-twentieth century. Stronger forms of egalitarianism that query the unequal property ownership under capitalism could not be brought to fruition in a capitalist economy. Marxian views, for example, would dismiss private ownership of the means of production as being inherently exploitative and argue for non-capitalist alternatives with different property relations based on socialist or communist - 18 - guidelines. These political matters lie beyond the scope of the present paper, but they illustrate the importance of culture and belief systems for enacting social change. A cultural approach to distributive justice has two major advantages worth reiterating. The first is that it can supply a proper rationale for egalitarianism by pondering the cultural effects of inequality. Arguments for equality must explain why a more equal society is better than a less equal one, and the case has to invoke culture as a process – equality is desirable because it can improve the well-being and behaviour of every member of society and strengthen social relationships. People who are equal have more in common with each other and develop greater social harmony than they would if divided by large income and other gaps. These arguments are impossible in a static model where individual preferences are fixed and the case for equality relies on external value judgements: a reshuffle of resource endowments would leave people unchanged, the only gain being a higher score on an objective function, whatever that may mean. If culture goes unmentioned, then the grounds for egalitarianism will be hazy. The second advantage is that a cultural approach can address the cultural transmission of inequality. Social divisions must have had historical origins – inequalities in income are tied to inequalities in social position and bound up with beliefs and attitudes. Long-standing disparities in income, status and power have been applauded by a culture of inequality and are perpetuated through that culture. With cumulative causation, a society that welcomes inequalities will watch them grow as wealth becomes concentrated. Egalitarian reform is not just about changing resource endowments but about reversing the social and cultural pressures towards inequality. An absolute appeal for distributive justice can be introduced from outside but, if it is to change things, must have some purchase on the culture. Equality would not then be imposed against the grain by central government but would permeate the cultural atmosphere at all levels and among all organisations: social symmetries would be preserved through reproduction of existing arrangements. No longer an external goal, equality would be internalised as the norm. Egalitarianism can prevail only if it becomes enshrined in social attitudes and gets passed on to future generations as a culture of equality. - 19 - REFERENCES ALCOCK, P., GLENNERSTER, H., OAKLEY, A. & SINFIELD, A. (eds) (2001) Welfare and Wellbeing: Richard Titmuss’s Contribution to Social Policy, Bristol, Policy Press. ALDERSON, A.S. & NIELSEN, F. (2002) ‘Globalization and the great U-turn: income inequality trends in 16 OECD countries’, American Journal of Sociology, vol. 107, no. 5, pp. 1244-1299. ALLON, F. & REDDEN, G. (2012) ‘The global financial crisis and the culture of continual growth’, Journal of Cultural Economy, vol. 5, no. 4, pp. 375-390. ARCHER, M.S. (1995) Realist Social Theory: The Morphogenetic Approach, Cambridge, Cambridge University Press. ARCHER, M.S. (1996) Culture and Agency: The Place of Culture in Social Theory, revised edition, Cambridge, Cambridge University Press. ARNOLD, M. (1986) ‘Equality’, in Matthew Arnold: A Critical Edition of the Major Works, eds M. ALLOTT & R.H. SUPER, Oxford: Oxford University Press, pp. 432-455. ATKINSON, A.B., PIKETTY, T. & SAEZ, E. (2011) ‘Top incomes in the long run of history’, Journal of Economic Literature, vol. 49, no. 1, pp. 3-71. BERGER, S. (ed) (2009) The Foundations of Non-Equilibrium Economics: The Principle of Circular and Cumulative Causation, London, Routledge. BHASKAR, R. (1979) The Possibility of Naturalism: A Philosophic Critique of the Contemporary Human Sciences, Brighton, Harvester Press. BÖGENHOLD, D. (2001) ‘Social inequality and the sociology of life style: material and cultural aspects of social stratification’, American Journal of Economics and Sociology, vol. 60, no. 4, pp. 829-847. BOURDIEU, P. (1977) Outline of a Theory of Practice, Cambridge, Cambridge University Press. BOURDIEU, P. (1984) Distinction: A Social Critique of the Judgement of Taste, London, Routledge and Kegan Paul. BOURDIEU, P. (2002) ‘The forms of capital’, in Readings in Economic Sociology, ed N.W. BIGGART, Oxford: Blackwell, pp. 280-291. - 20 - BOURDIEU, P. & PASSERON, J.-C. (1990) Reproduction in Education, Society and Culture, 2nd edn, London, Sage. BRANDOLINI, A. & SMEEDING, T.M. (2009) ‘Income inequality in richer and OECD countries’, in The Oxford Handbook of Economic Inequality, eds SALVERDA, W., NOLAN, B. & SMEEDING, T.M., Oxford: Oxford University Press, pp. 71-100. BRINKMAN, R.L & BRINKMAN, J.E. (2005) ‘Cultural lag: a relevant framework for social justice’, International Journal of Social Economics, vol. 32, no. 3, pp. 228-248. CAMINADA, K. & GOUDSWAARD, K. (2001) ‘International trends in income inequality and social policy’, International Tax and Public Finance, vol. 8, no. 4, pp. 395-415. CAMPBELL, C. (1995) ‘The sociology of consumption’, in Acknowledging Consumption: A Review of New Studies, ed D. MILLER, London: Routledge, pp. 95-124. CONNELL, P. (2001) Romanticism, Economics, and the Question of ‘Culture’, Oxford, Oxford University Press. COOPER, D., McCAUSLAND, W.D. & THEODOSSIOU, I. (2013) ‘Income inequality and wellbeing: the plight of the poor and the curse of permanent inequality’, Journal of Economic Issues, vol. 47, no. 4, pp. 939-957. COOPER, D., McCAUSLAND, W.D. & THEODOSSIOU, I. (2015) ‘Is unemployment and low income harmful to health? Evidence from Britain’, Review of Social Economy, vol. 73, no. 1, pp. 34-60. CROMPTON, R. (2008) Class and Stratification, 3rd edn, Cambridge, Polity Press. CRUCES, G., PEREZ-TRUGLIA, R. & TETAZ, M. (2013) ‘Biased perceptions of income distribution and preferences for redistribution: evidence from a survey experiment’, Journal of Public Economics, no. 98, pp. 100-112. DEACON, A. (2002) Perspectives on Welfare: Ideas, Ideologies and Policy Debates, Buckingham, Open University Press. DEAN, H. (2009) ‘Critiquing capabilities: the distractions of a beguiling concept’, Critical Social Policy, vol. 29, no. 2, pp. 261-278. DUGGER, W.M. (ed) (1996) Inequality: Radical Institutionalist Views on Race, Gender, Class, and Nation, Westport, CT, Greenwood Press. DUGGER, W.M. (1998) ‘Against inequality’, Journal of Economic Issues, vol. 32, no.2, pp. 286-303. - 21 - DUGGER, W.M. (2000) ‘Deception and inequality: the enabling myth concept’, in Capitalism, Socialism, and Radical Political Economy, ed R. POLLIN, Cheltenham: Edward Elgar, pp. 66-80. ELLIOTT, J.E. & CLARK, B.S. (1989) ‘Richard Henry Tawney on the democratic economy’, International Journal of Social Economics, vo. 16, no. 3, pp. 44-58. FRASER, N. (1995) ‘From redistribution to recognition? Dilemmas of justice in a “post-socialist” age’, New Left Review, vol. 212, pp. 68-93. FRASER, N. (2003) ‘Social justice in the age of identity politics: redistribution, recognition, and participation’, in Redistribution or Recognition? A Political-Philosophical Exchange, eds N. FRASER & A. HONNETH, London: Verso, pp. 7-109. GALBRAITH, J.K. (1992) The Culture of Contentment, Boston, Houghton Mifflin. GIDDENS, A. (1984) The Constitution of Society: Outline of the Theory of Structuration, Cambridge, Polity Press. GLYN, A. (2006) Capitalism Unleashed: Finance, Globalization, and Welfare, Oxford, Oxford University Press. GLYNOS, J., KLIMECKI, R. & WILLMOTT, H. (2012) ‘Cooling out the marks: the ideology and politics of the financial crisis’, Journal of Cultural Economy, vol. 5, no. 3, pp. 297-320. GOUGH, I. (1979) The Political Economy of the Welfare State, London, Macmillan. HAGERTY, M. R. (2000) ‘Social comparisons of income in one’s community: evidence from national surveys of income and happiness’, Journal of Personality and Social Psychology, vol. 78, no. 4, pp. 764-771. HORTON, T. & BAMFIELD, L. (2009) Understanding Attitudes to Tackling Inequality, York, Joseph Rowntree Foundation. IRVIN, G. (2008) Super Rich: The Rise of Inequality in Britain and the United States, Cambridge, Polity Press. JACKSON, W.A. (2005) ‘Capabilities, culture and social structure’, Review of Social Economy, vol. 63, no. 1, pp. 101-124. JACKSON, W.A. (2009) Economics, Culture and Social Theory, Cheltenham, Edward Elgar. JACKSON, W.A. (2013) ‘The desocialising of economic theory’, International Journal of Social Economics, vol. 40, no. 9, pp. 809-825. - 22 - KELLY, N.J. & ENNS, P.K. (2010) ‘Inequality and the dynamics of public opinion: the self-reinforcing link between economic inequality and mass preferences’, American Journal of Political Science, vol. 54, no. 4, pp. 855-870. KRISTAL, T. (2010) ‘Good times, bad times: postwar labor’s share of national income in capitalist democracies’, American Sociological Review, vol. 75, no. 5, pp. 729-763. LAWSON, T. (1997) Economics and Reality, London, Routledge. LISTER, R. (2007) ‘Social justice: meanings and politics’, Benefits, vol. 15, no. 2, pp. 113-125. LÖWY, M. (1987) ‘The Romantic and the Marxist critique of modern civilization’, Theory and Society, vol. 16, no. 6, pp. 891-904. LÖWY, M. & SAYRE, R. (2001) Romanticism against the Tide of Modernity, Durham, NC, Duke University Press. MARTIN, D.A. (1982) ‘R.H. Tawney as political economist’, Journal of Economic Issues, vol. 16, no. 2, pp. 535-543. McCALL, L. & PERCHESKI, C. (2010) ‘Income inequality: new trends and research directions’, Annual Review of Sociology, vol. 36, pp. 329-347. MISHRA, R. (1981) Society and Social Policy: Theoretical Perspectives on Welfare, London, Macmillan. MOULIN, H.J. (2003) Fair Division and Collective Welfare, Cambridge, MA, MIT Press. NECKERMAN, K.M. & TORCHE, F. (2007) ‘Inequality: causes and consequences’, Annual Review of Sociology, vol. 33, pp. 335-357. NORTON, M.I. & ARIELY, D. (2011) ‘Building a better America – one wealth quintile at a time’, Perspectives on Psychological Science, vol. 6, no. 1, pp. 9-12. O’CONNELL, M. (2004) ‘Fairly satisfied: economic equality, wealth and satisfaction’, Journal of Economic Psychology, vol. 25, no. 3, pp. 297-305. OFFE, C. (1984) Contradictions of the Welfare State, London, Hutchinson. OISHI, S., KESEBIR, S. & DIENER, E. (2011) ‘Income inequality and happiness’, Psychological Science, vol. 22, no. 9, pp. 1095-1100. PHELAN, J.C., LINK, B.G. & TEHRANIFAR, P. (2010) ‘Social conditions as fundamental causes of health inequalities: theory, evidence, and policy implications’, Journal of Health and Social Behavior, vol. 51(S), pp. S28-S40. - 23 - PIERSON, C. (2006) Beyond the Welfare State? The New Political Economy of Welfare, 3rd edn, Cambridge, Polity Press. PIKETTY, T. (2014) Capital in the Twenty-First Century, Cambridge, MA, Harvard University Press. PLUTA, J.E. (2010) ‘Evolutionary alternatives to equilibrium economics: some suggested applications’, American Journal of Economics and Sociology, vol. 69, no. 4, pp. 1155-1177. POLANYI, K. (1944) The Great Transformation: The Political and Economic Origins of Our Time, New York, Farrar and Rinehart. REISMAN, D.A. (1982) State and Welfare: Tawney, Galbraith and Adam Smith, London, Macmillan. REISMAN, D.A. (2001) Richard Titmuss: Welfare and Society, 2nd edn, Basingstoke, Palgrave. RIGNEY, D. (2010) The Matthew Effect: How Advantage Begets Further Advantage, New York, Columbia University Press. ROEMER, J.E. (1996) Theories of Distributive Justice, Cambridge, MA, Harvard University Press. ROSENBAUM, E.F. (1999) ‘Against naïve materialism: culture, consumption and the causes of inequality’, Cambridge Journal of Economics, vol. 23, no. 3, pp. 317-336. ROWLINGSON, K. & CONNOR, S. (2011) ‘The “deserving rich”? Inequality, morality and social policy’, Journal of Social Policy, vol. 40, no. 3, pp. 437-452. RYAN, C.C. (1981) ‘The fiends of commerce: Romantic and Marxist criticisms of classical political economy’, History of Political Economy, vol. 13, no. 1, pp. 80-94. SACHWEH, P. (2012) ‘The moral economy of inequality: popular views on income differentiation, poverty and wealth’, Socio-Economic Review, vol. 10, no. 3, pp. 419-445. SAVAGE, M. (2000), Class Analysis and Social Transformation, Buckingham, Open University Press. SAYER, A. (2005) ‘Class, moral worth and recognition’, Sociology, vol. 39, no. 5, 947-963. SAYER, A. (2012) ‘Capabilities, contributive injustice and unequal divisions of labour’, Journal of Human Development and Capabilities, vol. 13, no. 4, pp. 580-596. SEN, A.K. (1982) Choice, Welfare and Measurement, Oxford, Basil Blackwell. - 24 - SEN, A.K. (1993) ‘Capability and well-being’, in The Quality of Life, eds M.C. NUSSBAUM & A.K. SEN, Oxford: Oxford University Press, pp. 30-53. SEN, A.K. (1997) On Economic Inequality, 2nd edn, Oxford, Oxford University Press. SHILDRICK, T. & MACDONALD, R. (2013) ‘Poverty talk: how people experiencing poverty deny their poverty and why they blame the “poor”’, The Sociological Review, vol. 61, no. 2, pp. 285-303. SHIPMAN, A. (2004) ‘Lauding the leisure class: symbolic content and conspicuous consumption’, Review of Social Economy, vol. 62, no. 3, pp. 277-289. SKOTT, P. (1994) ‘Cumulative causation’, in The Elgar Companion to Institutional and Evolutionary Economics, eds G.M. HODGSON, W.J. SAMUELS & M.R. TOOL, Cheltenham: Edward Elgar, pp. 119-124. STANFIELD, J.R. (1995) Economics, Power and Culture: Essays in the Development of Radical Institutionalism, London, Macmillan. STREECK, W. (2011) ‘Taking capitalism seriously: towards an institutionalist approach to contemporary political economy’, Socio-Economic Review, vol. 9, no. 1, pp. 137-167. SWARTZ, D. (1977) ‘Pierre Bourdieu: the cultural transmission of social inequality’, Harvard Educational Review, vol. 47, no. 4, pp. 545-555. SWARTZ, D. (1997) Culture and Power: The Sociology of Pierre Bourdieu, Chicago, University of Chicago Press. TAWNEY, R.H. (1920) The Acquisitive Society, New York, Harcourt, Brace and Howe. TAWNEY, R.H. (1926) Religion and the Rise of Capitalism, London, Murray. TAWNEY, R.H. (1964) Equality, London, George Allen and Unwin. TRIGG, A.B. (2001) ‘Veblen, Bourdieu, and conspicuous consumption’, Journal of Economic Issues, vol. 35, no. 1, pp. 99-115. UNWIN, J. (2013) Why Fight Poverty?, London, London Publishing Partnership. VAIL, J. (2010) ‘Decommodification and egalitarian political economy’, Politics and Society, vol. 38, no. 3, pp. 310-346. VEBLEN, T. (1899) The Theory of the Leisure Class: An Economic Study of Institutions, New York, Macmillan. WADE, R.H. (2004) ‘On the causes of increasing world poverty and inequality, or why the Matthew effect prevails’, New Political Economy, vol. 9, no. 2, pp. 163-188. - 25 - WILKINSON, R.G. & PICKETT, K.E. (2010) The Spirit Level: Why Equality is Better for Everyone, London, Penguin. WILLIAMS, C.C. (2005) A Commodified World? Mapping the Limits of Capitalism, London, Zed Books. WOLFF, E.N. (2010) ‘Rising profitability and the middle class squeeze’, Science and Society, vol. 74, no. 3, pp. 429-449. ZAFIROVSKI, M.Z. (2000) ‘Economic distribution as a social process’, Social Science Journal, vol. 37, no. 3, pp. 423-443. 
work_ac4uep5fd5cvjbkpscuoumcqdu	----	© Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 743 Narrative practices in restorative justice Judit Hajdu Abstract This paper gives a description of methodologies, practices and principles of narrative practices and an overview of restorative practices as a foundation for a suggested combination of the two approaches in dealing with criminal incidents. It notes similarities between the two approaches, including the importance of stories, involvement of communities and individuals in their own conflicts, rejection of blame, searching the broader social landscape for explanation and influence and acknowledging and accepting contradictory stories. The author sees the two movements as coming from different directions but occupying overlapping territories and identifies — two areas where combined use of the two approaches could be beneficial — at the interface between restorative justice and the courts and in the role of communities in restorative justice practice. It concludes with an invitation to practitioners to test the ideas for cross-fertilisation outlined in the article and to develop programmes that draw from both sets of practices for the benefit of victims, offenders and communities. Introduction I had been practising Narrative Therapy for families and couples and doing divorce mediations for a few years when I started working with prisoners and first encountered restorative practices. I was immediately struck by similarities between narrative methods and restorative practices and was sure I would see a great deal of liaison between them. To my surprise, I have encountered few instances of inclination to consider co-operation among narrative practitioners, http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 744 and almost none in the field of restorative justice. As I started my training in restorative practices, I often felt an urge to include the well-structured scaffoldings of questions and interviews so characteristic of narrative practices into our exercises, and found they fitted in well even though they were not familiar to my tutors. I was encouraged to explore the possibilities of utilising a synthesis of restorative and narrative practices in criminal cases. The acceptance and use of restorative and narrative practices have been gaining ground over the past few decades and the principles and methodologies of each method are becoming well-established. In primary and secondary schools, as well as in higher education, the two approaches have been usefully blended (Winslade and Kecskemeti, 2016; Winslade and Williams, 2012; Kecskemeti, 2013; Kecskemeti, et al., 2013; Ganem and Duncan, 2017; Walgrave, 2011) and it is my belief that the two practices could gain considerably from a more extensive alliance in other areas, especially criminal justice. Narrative practices — some history and areas of use Narrative therapy was developed by David Epston of New Zealand and Michael White of Australia in the 1980s (White and Epston, 1992; Denborough, 2008; Denborough et al., 2008). Their collaboration was rooted in anthropology, family therapy and Eriksonian hypnotherapy and created not only a new approach but a new paradigm in psychotherapy and, ultimately, in mediation and collective practices. Narrative approaches, as will be discussed in more detail later, have always viewed individuals in relation to their social environment. Narrative practitioners work extensively with communities that endure hardship or have experienced trauma and in a close collaboration with them they have designed collective narrative practices that have been used effectively all over the world — for example, among prisoners, refugees, war survivors and other trauma victims (Denborough, 2008; Denborough et al., 2008). Mediation has also been developed http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 745 in narrative practices to influence family counselling, divorce mediation and conflict resolution in health and educational settings (Winslade and Monk, 2000). The narrative metaphor Breaking away from the prevailing psychotherapy practices, narrative therapy does not assume an underlying dysfunction that defines the behaviour of people, but is concerned with the meaning-making processes, the way people organise events of their lives into stories and the way, in turn, these same stories determine their actions (White and Epston, 1990). When people come to therapy they are usually not content with their stories. They do not want to continue to live their lives in line with them. Their problems are overwhelming and control their lives. They live problem-saturated stories. The task of the narrative practitioner is to sharpen their ears to alternative stories, events that do not fit the dominant storyline, the ones that had not been strung together into stories and could contradict the self-defining ones. These events are called unique outcomes, actions on the part of the client that can be starting points in weaving alternative stories to live by (White and Epston, 1990). These unique actions are the occasions, so often brushed aside as exception not worthy of attention, when, for example, Anger could not drive a father into verbal and physical aggression against his son upon hearing bad news from school, or when Fear could not coerce the son into cheating or running away. These alternative stories are fragile at the beginning and are constantly in danger of being defeated by dominant ones, so every effort should be made to “thicken” the thin stories (Morgan, 2000) by giving minute details of the scene, the smell, the colours and feelings. Telling and re-telling the stories make them sturdier, while writing them down also contributes to a thick storyline. The aim, however, is not to simply replace the dominant, problem- saturated stories with the desirable alternative ones, but instead to widen the landscape to encourage a rainbow of possible stories in place of the narrow http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 746 perspective created by the problem. A multi-storied perspective opens space for negotiating a number of possible outcomes that were previously unthinkable. Deconstructing discourses White’s philosophy was influenced by feminist authors and by the writings of Michel Foucault (Payne, 2006). He was intrigued by the ethics of power and the way it manifests itself in social discourses, in the taken-for-granted truths of institutions, religions, professions, clubs, neighbours and family members in all the strata of our lives. In any culture or society some stories have more power, more weight, than others. These cultural stories or discourses demarcate the lives and accepted behaviour of citizens, who perceive them as ‘facts’ or ‘reality’ (Freedman & Combs, 2002). These norms and narratives can be in contradiction. The masculine narrative of real-men-do-all-they-can-for-their-loved-ones can be in serious conflict with society’s demand to respect property. So many men have been incarcerated for taking up crime to provide for their families, especially in dire situations like serious health problems. Cultural discourses within smaller communities could also generate personal dilemmas. For example, the strict prison code of NTA (Never Trust Anyone) is against the strong desire and need to belong to somebody and have friendships to sustain integrity in hardship. Our lives are full of these dilemmas and discrepancies. Consider the traditional religious beliefs versus the demands of a modern woman or the dilemma between cultural integration and maintaining a homogeneous family unit. Assisting clients to identify and describe these many dominant narratives (voices) is one of the main tasks of the practitioner. Only by doing so can she or he select the ones worthy of attention in any setting (Winslade & Monk, 2000). Once the discourse becomes evident, it is possible to deconstruct, analyse and reconsider the nature and impact of this narrative. http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 747 Deconstructing the dominant social discourses is the first step to liberate oneself from their power. Historically, psychology, and especially psychotherapy, have been complicit in maintaining and even strengthening these discourses. Narrative practices question them first by acknowledging their presence and second by purposefully seeking out and reflecting on marginalised or alternative narratives. In practice, it means that practitioners acknowledge that they cannot be completely neutral in their dealings and that the client knows more about their own life (White, 1995). Discourses affect individual lives as well as professional beliefs. It is, for instance, a strong social narrative of the mediation profession that people are driven by their needs and the clash of these needs result in conflicts. Thus, according to the problem-solving approach in mediation, therapists must be “neutral” and “impartial” to negotiate between these needs (Winslade, et al., 1998). Winslade and Monk, mediators whose practices are informed by narrative ideas, criticise both the problem-solving approach of mediation practices and the need for — not to mention the possibility of — neutrality and impartiality on the part of practitioners. Winslade and Monk have developed a new conflict paradigm (Winslade & Monk, 2000). They have moved towards a notion that conflicts are embedded within differences of social discourses. According to a social constructionist view, there is no single true version of an event, only different perspectives. People make meaning of the world according to their experiences, which inevitably vary, and these meanings form the stories they tell about any event. These distinct stories, and the meanings given to them, are unique and therefore unavoidably create the potential for conflict (Winslade & Monk, 2000). This shift in perspective liberates the conflicting parties from their fixation on the problem itself, thus providing the opportunity for understanding the larger social context. The process of deconstructing their respective narratives helps them to reconsider how they view themselves and the other (Winslade & Monk, 2000). For example, once a divorced father realises that acting as the ‘traditional http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 748 head of the family’ is not the only or best way to pass on his values to his son, he can see himself engaging in a meaningful relationship with his child. As a result, time spent together can become more significant to each of them. This shift may in turn change his relationship with his ex-partner. Externalisation Since the 18th century the notion of internalised problems has become the norm; we refer to people as bad-tempered, shy, weak, or aggressive as a complete description of their personalities and behaviours. The person becomes an object, a mere container of problems. These problems are difficult to solve and require the knowledge and skills of an expert. The problem-solving process will be long and the outcome hard to predict (White, 1995). Narrative therapy, however, rejects the attempt to locate the problem within the person. Michael White’s most-quoted maxim is “The person is not the problem, the problem is the problem” (White, 1988/9; White & Epston, 1990). Adhering to this maxim, the therapeutic conversation is conducted in a way that problems get externalised, personified and talked about as if from a distance. Externalising conversations has a unique language in which problems to be objectified are used in their noun form instead of as adjectives. Narrative practitioners talk about “the anger” rather than “angry” to personify the problems and so give them intentions and power of their own. Problems can be talked of as vicious, evil or just mischievous, detached from the disputing parties, almost like creatures that make people’s lives difficult. Naming the problem is a process that tempers their impact on the people and reduces the intensity of the conflict. In fact, this could be the first agreement in addressing a conflict, bringing a measure of unity without the threat of having to give up positions. Having established a common name for the disagreement, there is an opportunity to explore its history and its effects on the relationship http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 749 between the parties. Practitioners can ask questions about what the problem or conflict destroys, hinders, makes difficult or even what it makes possible (Winslade & Monk, 2000). Talking, for instance, about jealousy, as a monster that destroys intimacy, ruins the best moments, and brings about anger and desperation, makes it easier to talk about its effects without accusation and the consequent defensiveness. Also, jealousy not only affects the person one is jealous about, but the jealous person as well. It might whisper irrational things into her or his ear or distract the person at work. By inviting jealousy into the therapy room, it is easier to face it together, help overcome its toxic effect, and see the other person and the relationship without its devastating control. It should be noted, however, that, externalisation is not merely a technique, it is an attitude, a way of looking at the world. The aim is to see the problem separate from and not as defining the person. Working with a family with a history of abuse, for instance, the therapist might inquire about the “reign of aggression”, the “debilitating power of fear” or the “deceiving nature of silence”. Conducting the therapeutic conversation with this mindset, parties come to understand the effect a problem might have on others and determine how to confront and resolve the problem (Freeman, et al., 1997). Let me give you a short excerpt from a family consultation: Father (about his young adult son, who is in trouble for vandalism): I can understand him. I was like him. It runs in the family. When I was his age I smashed and broke and saw no God no Human. Like an animal. Like a man. Practitioner: You mean, it was difficult to control your anger? F: It was no anger. It was like a wild beast. But sure, it was difficult to control. It’s in me. I am that beast… Less so now. P: How is that? How can you control that wild beast more these days? F: Dunno. I suppose I got older, wiser … maybe tired … and suppose, I just can’t. Not with the little one (his grandson) around. I’ve got to look after him. Can’t let him down. http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 750 P: So, you think it might be love or responsibility that could put the rein on that wild beast. F: Those for sure. Mother: (turning to her son) I could see no wild beast in your eyes. Son: Maybe you don’t, but I feel it… The practitioner could have chosen to initiate a conversation about the story or narrative of what it is to be a man because that is part of how the father understands his son. Instead, she chose to externalise the idea of anger. She initiated a name to encourage the christening and carried on with the externalising language. It struck a chord with the son, who could feel understood, but still responsible. It opened up the possibility of considering the skills and knowledges that could help him control his own beast. Much later, having externalised the notions of anger, responsibility and tenderness, it was easier to discuss the social expectations (narrative) of masculinity. Collective narrative practices Narrative therapy has also turned away from the practice of isolating people with problems. Recognising that problems are embedded in the culture, a narrative approach involves members of the relevant communities to support the process. In collective practices, it is paramount “to listen for both individual and collective speech patterns” (Denborough, 2008 p23): whenever there is trauma there is always a social issue. Practitioners therefore respond to both the individual and the collective issues. In their view, attending to a greater social problem often plays a considerable part in healing the individual (Denborough, 2008). For instance, in the comment: “When I was a kid, I was never much regarded as a human being in my family. I was a girl and fathers, of course, want boys” it is possible to detect the personal story of the speaker’s role in her family as well as the collective, the social discourse, of ‘boys being more valuable’ than http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 751 girls. Bringing the collective into focus can be genuinely empowering (Denborough, 2008). Narrative practices, although part of a therapy tradition, demonstrate the extraordinary potential of engaging the community — the collective — in addressing an individual problem. This — the community — is the very place where restorative practices take their roots. Restorative practices — some history In ancient times, the practice of victims and offenders settling their disputes with help from their community was widespread. Crime was not considered an act against society. These cultures acknowledged that the participants — victims, offenders, their families and their immediate communities — were all affected by the crime and therefore must be involved in restitution. This is not to say that there were no rules to compensate for wrongdoings, but the aim of these rules was to reclaim an atmosphere of peace, wholeness and companionship in the community. Codes of Hammurabi, Roman Law, German tribal laws or the traditions of indigenous people of North America, New Zealand and Australia were all similar in that they were less punitive than restorative (Van Ness & Strong, 2010). As kingdoms replaced tribal cultures, rulers took the place of victims; crimes were committed against the ‘crown’. Punishment was meted out by the ruler and restitution or fines were paid to the state. The real victims were left out of the process. Although the failures of the system became apparent and prison reformers tried repentance, work treatment, training, psychological and mental treatments of the offenders, the victims were never again thought worthy of including (Van Ness & Strong, 2010). It was not until the 1960s and ’70s that victim rights groups began to mobilise. Nils Christie, a Norwegian criminologist, considered criminal acts as conflicts and thus unavoidable elements of society. He argued that these http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 752 behaviours should be cherished, their solutions should not be monopolised by institutions, but rather be given back to the parties in conflict (Christie, 1977), an idea that is compatible with the perception of conflict as “the almost inevitable by-product of diversity” (Winslade & Monk, 2000, p. 41). Winslade and Monk also want to give back the conflict to the participants by encouraging them to name it, make meaning of it, realise and deconstruct the social discourses giving the conflict its strength. Christie (1977) called for the de-institutionalising of criminology; not unlike narrative theorists urging practitioners to step aside as experts and encourage individuals and communities to take responsibility for addressing problems. He described his vision of a victim-oriented criminal system that takes its format after neighbourhood courts, a system where response to crime is decided by those who are most closely affected by it and governed by the values of the community. Soon research and experiments resulted in the introduction of interventions premised on the understanding of “crime as a wound within the community and recognise(s) that justice requires not just accountability but also healing” (Umbreit & Armour, 2011). Restorative Justice as it evolved is not a scheme or a set of techniques but – much the same as Narrative practices – a world view, a perspective on human contact and especially conflict (Umbreit & Armour, 2011). It is a dynamic and often controversial domain of beliefs and practices trying to find its way between being part of the system of law and justice and a social movement (Walgrave, 2011). Restorative justice programmes The three principal restorative justice initiatives are victim-offender mediation (VOM), conferencing and circles. The four essential values of all restorative justice programmes are: • Inclusion — making sure that all affected parties are included (victims, offenders, their respective families and the larger community). http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 753 • Encounter — a face-to-face meeting of the participants in a secure environment (when and where it is feasible); • Amends — the offender taking responsibility for harm done and for restitution or compensation; and • Reintegration — providing an opportunity for those responsible for causing harm to return to the community (Van Ness & Strong, 2010). VOMs are guided face-to-face meetings between victims and offenders — and maybe the support persons of both parties — in a safe setting after thorough preparation by the facilitator. The name is somewhat misleading as the aim of the encounter is not — as is true in most mediation interventions — to come to a consensus acceptable by both parties. Instead, the process provides an opportunity for reconciliation, where victims gain confidence over their vulnerability and find a measure of acceptance and peace, and offenders realise the full effect of their behaviour and accept responsibility for the impact of their actions. An ideal outcome of VOM is not necessarily compensation or restitution but psychological changes in the victim and the offender in relation to the criminal act. The story of the crime can be re-authored by the participants to create a narrative that is coherent and reflects their new perspectives on the events of the crime. Family conferencing was first introduced in New Zealand to save young offenders from prison and is now widely used in several countries. The principal goal of this process is to preventing the criminalisation of vulnerable youth. The offender’s extended family, together with other willing community members, are invited to discuss and determine how to share tasks and responsibilities that address the offender’s behaviour, pooling their resources. Experts are not part of the conference but can be asked to provide answers to questions from group members to assist the group in making decisions. Circles are facilitated discussions about harm or conflicts concerning a community. They can be held after sentencing to aid reconciliation (peace-making http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 754 circles) or in place of sentencing (sentencing circles). In recognition of traditional methods, some judicial decisions in Canada have been transferred to traditional first nation communities (Bradshaw & Roseborough, 2005). A possible synergy Narrative and restorative practices share common principles as well as some history: • importance of stories; • rejecting the expert position of professionals; • significance of communities; • inviting communities and individuals to own their conflicts and stories; • relying on the wisdom of traditional cultures in problem-solving; • rejecting blaming the individual and searching the broader social landscape for explanation and influence; • acknowledging the simultaneous existence of contradictory stories and accepting them; and • seeing conflict as essential, something that can have value. Restorative justice aims for justice that entails healing, while narrative therapy “has the capacity to channel the energy arising from individual troubles and shape it into productive social action” (McLeod, 2006, p. 207). Thus, combining the two movements, that come from two directions and occupy overlapping territories could intensify their effect. There are two areas where use of a combination of restorative and narrative practices could be beneficial to both approaches. http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 755 1) Interface between restorative justice and the criminal justice system Most restorative justice programmes take place within the court context. Thus, it is no surprise that it has been strongly influenced by the values and practices of the legal system, leaving little room for alternative outcomes apart from apology, disclosure and amends. Offenders’ stories are often labelled “comfort stories” by practitioners, meaning they are formed to make excuses to ameliorate responsibility (Booth, 2018), while victims’ stories are also often limited to satisfy social beliefs about victimhood (Pemberton et all, 2018). Jenkins (2009), who combines restorative and narrative ideas in his work with men who have abused, encourages practitioners to challenge the initial, often one-sided, self-deprecatory or self-important abusive self-narratives of the offenders and listen for signs of ethical qualities which they can use as openings to develop a fuller, multi-storied narrative less governed by the often-confining social discourses of masculinity (Jenkins, 2006). The danger of accepting culturally constructed narratives — those deemed consistent with the norms of the legal system — as the only truth about a person, applies to victims’ stories as well. Narratives of offenders and victims are connected by the stories of crime, but the meanings of crime differ considerably for victims, offenders and the legal system (Decraemer, 2014). Complying with norms of criminal justice can result in one-sided storylines that emphasise vulnerability and guilt, leaving little room for self-definition or strength. It is the responsibility of the practitioner to find the unique outcomes that can lead to alternative stories and provide space for therapeutic change (White, 2007). Whether offenders and victims can share their stories, and when, should be decided by the practitioner in consultation with all affected parties. Victim- offender mediation commonly starts with thorough preparation performed in alternating separate meetings with the victim(s) and the offender(s). The aim of the preparatory phase is to build trust with the mediator and the process, http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 756 decrease anxiety and prepare the participants to see, hear or simply be in the presence of the other (Mercer & Madsen, 2015). Narrative techniques could be considered in this preparatory phase. As part of the narrative process, the participants could discuss and negotiate the meaning of experiences such as pain, loss, and violence. In the process of deconstructing these terms, the victim and offender can revise the isolating discourses and thereby assert a measure of control over their stories. With thorough preparation, there is every possibility that it can turn out to be a life-changing event. 2) The role of communities in restorative justice practice In restorative justice, community members play a variety of roles, including the active and direct involvement of immediate family members of victims and offenders, concerned community members at peace-making circles, and the dedicated work of volunteers (Rossner & Bruce, 2016). I argue that restorative justice as a movement, as well as a form of practice, could benefit largely from the tested and proven methods of collective narrative practices. One of their many advantages is that they rely on the strengths, traditions and cultural norms of the communities themselves. The underlining principle of collective practices is the importance of telling and re-telling of life-stories — the narratives that create the ever-changing identities of persons. Re-authoring culturally defined stories needs audiences, stories need to be told and heard and then they can be profoundly life-changing (White, 2007). The first narrative technique that used audiences to absorb and respond to stories is outsider witness practice, which is rooted in the work of American anthropologist Barbara Myerhoff: “Definitional ceremonies deal with the problems of invisibility and marginality; they are strategies that provide opportunities for being seen and in one’s own terms, garnering witnesses to one’s worth, vitality, and being.” (Myerhoff 1982, p.267) http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 757 Outsider witness practices build on the power of acknowledgment. The highly-structured ritual is divided into three stages: 1. Telling of the life-story by the person the ceremony is organised for; 2. Reflection in response to this story by the witnesses — by answering specific questions; and 3. Reflection by the person the ceremony is organised for, on how his or her story influenced the witnesses. Outsider witnessing is a widely-used technique not just in community work but in therapy or mediation and it could be a powerful tool in the hands of restorative practitioners in the aftermath of harm done to the community. Other collective practices can be used, such as sharing stories of knowledge and achievements between communities, the ‘tree of life’ technique that uses the metaphor of the tree to find and build on the roots and strength of communities experiencing hardship, the ‘collective timelines’ technique to highlight shared sentiments between people of very different backgrounds, and the power of song- writing and music. These methods have been developed in a variety of cases and used when crime or incarceration affected a community (Denborough, 2008). Conclusion This article identified many similarities in the underlining principles of narrative and restorative practices and suggested ways of combining the two practices in criminal cases. Narrative techniques and methodologies that could be used within the framework of restorative justice include externalisation, spotting unique outcomes to weave alternative stories, re-authoring stories to gain multi-storied identities, and a great variety of collective narrative practices that could enhance the effectiveness of restorative justice. Narrative practitioners on the other hand http://jmaca.maynoothuniversity.ie/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 758 could venture more in the territory of restorative practices — especially in criminal cases in judicial settings. Greater awareness of the similarities between the two approaches is needed and could be achieved, in part at least, through conference and journal contributions from both sides. I urge restorative and narrative practitioners to test the ideas for cross-fertilisation outlined in this article and to develop programmes drawing on both sets of practices for the benefit of victims, offenders and communities. References Booth, M. (2018) in a blog of the film Injustice (http://www.injustice- film.com/2018/06/23/michaela-booth-on-victims-and-redemption/) Bradshaw, W. & Roseborough, D. (2005) Restorative justice dialogue: The Impact of Mediation and Conferencing on Juvenile Recidivism, Federal Probation, 69(2), p. 15–21. Available at: http://ir.stthomas.edu/ssw_pub/24 (Accessed: 15 May 2018) Christie, N. (1977) Conflicts as property, The British Journal of Criminology, 17(1): 1-15. Decraemer, K. (2014) Working with (Young) Offenders, Conference notes, Third Europe+ Conference of Narrative Therapy and Community Work, Iasi, Romania Denborough, D. (2008) Collective Narrative Practice – Responding to Individuals, Groups and Communities who have Experienced Trauma, Adelaide: Dulwich Centre Publications. Denborough, D., J. Freedman, and C. White (2008) Strengthening resistance: The use of narrative practices in working with genocide survivors, Adelaide: Dulwich Centre Foundation. Freedman, J., and G. Combs (2002) Narrative therapy with couples ... and a whole lot more! Adelaide, S. Aust.: Dulwich Centre Publications. Freeman, J. C, D. Epston, D. Lobovits (1997) Playful Approaches to Serious Problems: Narrative Therapy with Children and Their Families, New York: W.W. Norton. http://jmaca.maynoothuniversity.ie/ http://www.injustice-film.com/2018/06/23/michaela-booth-on-victims-and-redemption/) http://www.injustice-film.com/2018/06/23/michaela-booth-on-victims-and-redemption/) http://ir.stthomas.edu/ssw_pub/24 http://www.narrativetherapylibrary.com/strengthening-resistance-the-use-of-narrative-practices-in-responding-to-genocide-survivors.html http://www.narrativetherapylibrary.com/strengthening-resistance-the-use-of-narrative-practices-in-responding-to-genocide-survivors.html © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 759 Ganem P., D. Duncan (2017) Integrative Restorative Justice Narrative Mediation circle Approach: Students’ Perspective of their MSW Program Experience, Available at: https://csus- dspace.calstate.edu/bitstream/handle/10211.3/189850/GanemDuncanRJNMcThesi s.pdf?sequence=1 Jenkins, A. (2006) Shame, Realisation and Restitution: The Ethics of Restorative Practice, Australian and New Zealand Journal of Family Therapy, 27(3), p. 153– 162. Jenkins, A. (2009) Becoming Ethical: A Parallel, Political Journey with Men who have Abused, Dorset: Russel House Publishing. Kecskemeti, M. (2013) Competent Students and Caring teachers: is a Good Pedagogy Always the Best Pedagogy? Teachers and Curriculum, Vol.13: 93-98. Kecskemeti, M., K. Kaveney, S. Gray, W. Drewery (2013), A Deconstructive Approach to Class Meetings: Managing Conflict and Building Communities, Narrative and Conflict: Explorations in Theory and Practice 1(1): 30- 51. McLeod, J. (2006) Narrative thinking and the emergence of postpsychological therapies, Narrative Inquiry. 16(2006) pp. 201-210. Mercer, V., K. Sten Madsen, M. Keenan and E. Zinsstag (2015) Sexual Violence and Restorative Justice: A Practice Guide, Leuven Institute of Criminology. [online] Available at: http://www.euforumrj.org/wp-content/uploads/2015/09/Doing- Restorative-justice-in-cases-of-sexual-violence_practice-guide_Sept2015-1.pdf (Accessed: 15 May 2018) Morgan, A. (2000) What is Narrative Therapy? An Easy-to-read Introduction, Adelaide, S. Australia: Dulwich Centre Publications. Myerhoff, B (1980) Number Our Days, New York: Simon and Schuster. Myerhoff, B. (1982) ‘Life history among the elderly: Performance, visibility, and remembering’ in Ruby J. (ed.) A crack in the mirror: Reflexive perspective in anthropology, Philadelphia: University of Pennsylvania Press. Payne, M (2006) Narrative Therapy, Sage Publications. Pemberton, A., P.GM. Aarten, E. Mulder (2018) Stories as property: Narrative ownership as a key concept in victims’ experiences with criminal justice, Criminology and Criminal Justice [online]. Available at: http://jmaca.maynoothuniversity.ie/ https://csus-dspace.calstate.edu/bitstream/handle/10211.3/189850/GanemDuncanRJNMcThesis.pdf?sequence=1 https://csus-dspace.calstate.edu/bitstream/handle/10211.3/189850/GanemDuncanRJNMcThesis.pdf?sequence=1 https://csus-dspace.calstate.edu/bitstream/handle/10211.3/189850/GanemDuncanRJNMcThesis.pdf?sequence=1 http://www.euforumrj.org/wp-content/uploads/2015/09/Doing-restorative-justice-in-cases-of-sexual-violence_practice-guide_Sept2015-1.pdf http://www.euforumrj.org/wp-content/uploads/2015/09/Doing-restorative-justice-in-cases-of-sexual-violence_practice-guide_Sept2015-1.pdf © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 760 http://journals.sagepub.com/doi/10.1177/1748895818778320 (Accessed: 15 May 2018) Rossner, M and Bruce, J. (2016) Community participation in restorative justice: rituals, reintegration, and quasi-professionalization, Victims & Offenders, 11(1) pp. 1-19. [online] Available at: http://eprints.lse.ac.uk/65067/ (Accessed: 15 May 2018) Umbreit, M., M. P. Armour (2011) Restorative Justice Dialogue: An Essential Guide for Research and Practice, New York: Springer Publishing Company. Van Ness D.W., K. H. Strong (2010) Restoring Justice: An Introduction to Restorative Justice, Routledge. Walgrave, L. (2011) Investigating the Potentials of Restorative Justice Practice, Journal of Law & Policy 36 [online]. Available at: https://openscholarship.wustl.edu/law_journal_law_policy/vol36/iss1/6/ (Accessed: 15 May 2018) White, M. (1988/9) The externalizing of the problem and the re-authoring of lives and relationships in White M. (ed.) Selected Papers, Adelaide, Australia: Dulwich Centre Publications. White, M., D. Epston (1990) Narrative Means to Therapeutic Ends, New York: Norton. White, M., D. Epston (1992) Experience, contradiction, narrative and imagination: Selected papers of David Epston and Michael White 1989-1991, Adelaide: Dulwich Centre Publications. White, M. (1995) Re-authoring lives, Adelaide: Dulwich Centre Publications. White, M. (2007) Maps of Narrative Practice, New York: Norton. Winslade, J., M. Kecskemeti (2016) Better Classroom Relationships, New Zealand: NZCERPRESS. Winslade, J., G. Monk, A. Cotter (1998) A Narrative Approach to the Practice of Mediation, Negotiation Journal, 14(1), pp. 21-41 Winslade, J., G. Monk (2000) Narrative Mediation: A New Approach to Conflict Resolution, San Francisco: Jossey-Bass. Winslade, J., M. Williams (2012) Safe and Peaceful Schools: Addressing Conflict and Eliminating Violence, Corwin. http://jmaca.maynoothuniversity.ie/ http://journals.sagepub.com/doi/10.1177/1748895818778320 http://eprints.lse.ac.uk/65067/ https://openscholarship.wustl.edu/law_journal_law_policy/vol36/iss1/6/ © Journal of Mediation and Applied Conflict Analysis, 2019, Vol. 6, No. 1 http://jmaca.maynoothuniversity.ie Page | 761 Judit Hajdu has been working as a psychologist with children, adults, couples and families for 15 years. She has been secretary to the Hungarian Family Therapy Association and has worked as psychologist and restorative practitioner at prisons. She was the initiator of prison radio in Hungary. At present, she studies criminology at the University of Glasgow. http://jmaca.maynoothuniversity.ie/ Narrative practices in restorative justice Judit Hajdu Narrative therapy was developed by David Epston of New Zealand and Michael White of Australia in the 1980s (White and Epston, 1992; Denborough, 2008; Denborough et al., 2008). Their collaboration was rooted in anthropology, family therapy and Eriksoni... The narrative metaphor Deconstructing discourses Externalisation Collective narrative practices Restorative practices — some history Restorative justice programmes A possible synergy Narrative and restorative practices share common principles as well as some history:  importance of stories;  rejecting the expert position of professionals;  significance of communities;  inviting communities and individuals to own their conflicts and stories;  relying on the wisdom of traditional cultures in problem-solving;  rejecting blaming the individual and searching the broader social landscape for explanation and influence;  acknowledging the simultaneous existence of contradictory stories and accepting them; and  seeing conflict as essential, something that can have value. Restorative justice aims for justice that entails healing, while narrative therapy “has the capacity to channel the energy arising from individual troubles and shape it into productive social action” (McLeod, 2006, p. 207). Thus, combining the two mov... There are two areas where use of a combination of restorative and narrative practices could be beneficial to both approaches. 1) Interface between restorative justice and the criminal justice system Most restorative justice programmes take place within the court context. Thus, it is no surprise that it has been strongly influenced by the values and practices of the legal system, leaving little room for alternative outcomes apart from apology, dis... Jenkins (2009), who combines restorative and narrative ideas in his work with men who have abused, encourages practitioners to challenge the initial, often one-sided, self-deprecatory or self-important abusive self-narratives of the offenders and list... The danger of accepting culturally constructed narratives — those deemed consistent with the norms of the legal system — as the only truth about a person, applies to victims’ stories as well. Narratives of offenders and victims are connected by the st... 2) The role of communities in restorative justice practice References Booth, M. (2018) in a blog of the film Injustice (38TUhttp://www.injustice-film.com/2018/06/23/michaela-booth-on-victims-and-redemption/)U38T White, M. (2007) Maps of Narrative Practice, New York: Norton. 
work_acjxmlbwafbylkf3smmsqtxiau	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_aegpcuw3uvfvvak4xwmj7iazo4	----	Layout 1 HumanitiesCMAJ Partner to the Poor: A Paul Farmer Reader Paul Farmer Haun Saussy, Editor University of California Press; 2010. D r. Paul Farmer is an inspiration. A physician specializing in infectious disease as well as an anthropologist, he was one of the cofounders of Partners In Health in 1987 and has devoted his career to helping the poor gain access to medical services and treatment in Haiti, Rwanda, Peru, Mex- ico, Russia and elsewhere. He is the author of many influential books and essays addressing the impact of what he has termed “structural violence” (the embodiment of poverty and entrenched inequalities as violence) on the health of populations against whom it is directed, as well as a history of Haiti. He was the subject of Tracy Kidder’s bestselling biography Mountains beyond Mountains. Partner to the Poor is a compilation of essays and talks given by Farmer from 1988–2009. They are fascinating, thought-provoking and, despite the fact that some are over 20 years old, relevant to anyone interested in global health and issues related to its disparities. The book’s four sections address the inter- sections of anthropology and medicine at different points: culture, history, ethics, human rights; gender, racial and political inequalities; and access to health care and/or its denial. A prime example of the latter, dis- cussed multiple times throughout the book, is the rapid spread of AIDS in Haiti and Africa during the 1980s and 1990s, and the various approaches sug- gested for halting it. Many opposed sup- plying affordable retroviral medications to some of the hardest hit (and poorest) parts of the world because it was not cost-effective and because of concern that there was insufficient infrastructure in those places to ensure the necessary adherence to prevent the emergence of resistant strains of HIV. Those organiza- tions preferred to focus their efforts on prevention rather than on treatment. Farmer disagreed with this approach, which, in his opinion, ignored the real reasons for the spread of AIDS, namely the socio-economic forces that had led to the collapse of traditional agrarian soci- eties, as well as entrenched poverty and gender inequality, which were all beyond the abilities of any of the organizations to resolve quickly. Farmer and Partners In Health successfully demonstrated that it was possible to achieve real progress in the fight against AIDS when combining prevention with treatment. (Farmer notes that those models that focused only on prevention ultimately proved completely ineffective.) Farmer also argues that properly framing the conversations on how to improve global health and defining their context is critical to understanding the challenges involved in doing so and being able to overcome them. When people defend a reluctance to introduce antiretroviral medication to rural Haiti and Africa because of the cost, he advo- cates using that as the “beginning of a conversation … [rather than] the end of one.” Costs can be brought down, after all, and effectiveness improved. He wonders how one can seriously frame questioning the use of medications not yet approved for use in children by the US Food and Drug Administration to treat multi−drug resistant tuberculosis, which causes 500 000 new cases annu- ally, as an “ethical challenge.” He points out that this is in fact a litigious, not an ethical concern, and that it does not begin to consider the priorities of those so desperately in need of treatment. Similarly, he refers to “the near invisibility of the poor” when describ- ing the reaction to a talk given at Har- vard University by a Rwandan pediatri- cian who was presenting the inroads Partners In Health had made in treating cancer patients in Rwanda. After con- cluding his talk, the pediatrician found himself “upbraided repeatedly about ethical concerns regarding the delivery of cancer care by people not trained in oncology,” despite the fact that there were no oncologists in the Rwandan countryside and that the real alternative was simply to provide no care at all. Farmer concludes one of the essays by writing that “we have no more excuses for ignoring the growing inequality that has left hundreds of mil- lions of people without any hope of surviving preventable and treatable ill- nesses.” This uncompromising commit- ment to social justice, as well as the dedication and steadfast resolve to improve the lives of others are clearly evident throughout the book and his work at large. It is precisely these qual- ities that have made him an inspiration to so many across the world. Dennis Rosen MD Division of Respiratory Diseases Children’s Hospital Boston Harvard Medical School Boston, USA CMAJ • DECEMBER 14, 2010 • 182(18) © 2010 Canadian Medical Association or its licensors E871 Books An uncompromising commitment to social justice D O I: 10 .1 50 3/ cm aj .1 00 82 4 U n iv e rs it y o f C a li fo rn ia P re ss 
work_aekcwabconag3an3dvhiignvcq	----	Transitional justice and its discontents. This is a repository copy of Transitional justice and its discontents.. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/87535/ Version: Accepted Version Article: McCargo, D (2015) Transitional justice and its discontents. Journal of Democracy, 26 (2). 5 - 20 (16). ISSN 1045-5736 https://doi.org/10.1353/jod.2015.0022 eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Unless indicated otherwise, fulltext items are protected by copyright with all rights reserved. The copyright exception in section 29 of the Copyright, Designs and Patents Act 1988 allows the making of a single copy solely for the purpose of non-commercial research or private study within the limits of fair dealing. The publisher or other rights-holder may allow further reproduction and re-use of this version - refer to the White Rose Research Online record for this item. Where records identify the publisher as the copyright holder, users can verify any specific terms of use on the publisher’s website. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ 1 Transitional Justice and Its Discontents Duncan McCargo Journal of Democracy, April 2015 Duncan McCargo teaches political science at Columbia University and the University of Leeds. His latest book is Mapping National Anxieties: Thailand’s Southern Conflict (2012). He recently completed a Leverhulme Trust Major Research Fellowship on politics and justice. At a military base outside Phnom Penh, two elderly defendants have been refusing since October 2014 to cooperate in the second stage of their trial for presiding over mass killings during the 1975–79 Khmer Rouge regime. A third defendant died in early 2013, a few months after a fourth was ruled unfit to be tried. So far only one case at the Tribunal has run its full course, that of a former torture center chief who is currently serving a life sentence. Cambodia’s authoritarian government (it has long been rated Not Free by Freedom House) is blocking any further arrests, and the US$200 million that the international community has spent so far on a flawed “hybrid” tribunal (it is considered both Cambodian and international) will probably result in just three convictions. Next door in Thailand, the Truth for Reconciliation Commission that was set up to investigate the deaths of 92 people during April and May 2010 demonstrations has failed to offer any strong criticism of the military officers who ordered most of the killings. Instead, the commission has blamed armed elements within protest ranks for precipitating the violence. The Royal Thai Army, its longstanding impunity unchecked, went on to stage yet another coup (Thailand’s twelfth since 1932) in May 2014. Over the past two decades, “transitional justice”—a catch-all phrase that refers both to truth commissions such as the one in Thailand and special courts with criminal-sentencing powers such as the one in Cambodia—has become a vast global industry that employs tens of 2 thousands of people. Kathryn Sikkink lists transitional human-rights prosecutions relating to 48 countries, mainly since the mid-1990s, along with 28 truth commissions.1 Much of the funding for these activities comes via the United Nations, or as donations from Western countries and Japan. In 2014, the UN spent more than $200 million on the Rwandan and former Yugoslavia tribunals alone. Like any such industry, the transitional-justice enterprise has promoters who make optimistic claims about what it is and what it can accomplish.2 Two key milestones mark the rise of transitional justice. The first was the 1995 establishment of South Africa’s postapartheid Truth and Reconciliation Commission (TRC), and the second was the creation in 2002 of the International Criminal Court (ICC), with its headquarters at The Hague. These two institutions have served as oft-imitated models, while the principles and ideals that they are meant to embody have been widely praised and exported. The ICC symbolizes the idea that those responsible for genocide, war crimes, or other crimes against humanity should face trial, not simply in normal domestic courts—which often are too limited in capacity or too politicized to act against political elites or senior security officials—but in specially created international tribunals. By trying these defendants outside ordinary courts and under the highest international standards of justice, such tribunals are meant to exert a potent moral authority that will deter current and future leaders from engaging in terrible criminal acts. These tribunals’ warmest supporters also claim that the principles thus demonstrated can help to improve local judicial systems while also laying some of the groundwork for transitions toward more open and democratic political orders. The South African TRC captured the notion that a transition to democracy must often confront “unfinished business”: histories of human-rights abuses, crimes committed by former regimes, and violent incidents that have gone uninvestigated, sometimes for decades. In many 3 cases, pressing criminal charges against perpetrators (who may also be victims) proves impractical or undesirable. Truth commissions offer a less adversarial means of righting wrongs. Documents and other evidence are collected, witnesses are interviewed, reports are published— but legal immunity is often given, and generally nobody goes to jail. This nonpunitive, quasi- judicial process aims to heal emotional wounds and promote comity between old enemies. The current vogue for transitional justice seems, on its face, eminently reasonable and indeed laudable. Those who have committed atrocities or crimes against humanity deserve to be tried and (if convicted) punished, by an international tribunal if necessary. Societies torn by violence should have a chance to remember, reflect, and pursue reconciliation. The rise of transitional justice has given rise to a huge industry of lawyers, UN staff, NGO activists, consultants, and fellow-traveling academics who are busy setting up tribunals and truth commissions around the world. And always, of course, all is done in close collaboration with local “partners.” A main argument of the industry is that it helps to create “justice cascades” through which norms of fair trials and accountability begin to take hold in national and local contexts. Accountability is an important concept. As Ricardo Blaug argues, it has two core components. The first is scrutiny (who can be made to explain their actions?), and the second is sanction (what consequences will they face?).3 While truth commissions emphasize scrutiny, trials emphasize sanction. Evaluating the success of accountability involves establishing criteria for the effectiveness of transitional-justice initiatives. Much depends on the aims that the mechanisms are meant to serve. These aims may not always be obvious: They could include punishing criminality, asserting morality, creating an “expressive” example, resolving conflicts, aiding political “transitions,” achieving “closure,” enhancing “transparency” and community 4 cohesion, or crafting historical memory. Some of these aims may contradict one another. In some cases, for instance, transitional-justice mechanisms may end up preventing scrutiny—key actors may never testify, commission reports may become exercises in evasion—or they may even obstruct rather than promote the imposition of effective sanctions. Transitional justice, whether brought by tribunal or truth commission, would be great if it worked. Likewise, if its results were unproven but fairly harmless, there would be little to worry about. Money has often been wasted on much worse things. But what if transitional justice all too often proves counterproductive? What if it raises unrealistic hopes, stirs up fears and hatreds, hijacks transition processes, and even strengthens corrupt elites? If the transitional-justice industry spawns new nightmares instead of banishing old ones, then the tribunals and commissions have gone too far. Another oft-heard term in the transitional-justice world is “holistic approach.” The idea is that criminal prosecutions, truth commissions, reparations, gender justice, security-sector reform, and efforts to memorialize victims should often be deployed together. Nevertheless, the syncretism involved in such complementarity is analytically quite confused. Throwing in, for example, promoting more enlightened gender policies and cutting the number of army generals serves to blur the legalistic character of transitional justice—since these are policy measures that can be undertaken by any society. Tribunals on Trial The idea of charging people with crimes against humanity in international courts goes back to the tribunals convened by the victors at the end of the Second World War. As was 5 recognized at the time, it implied no sympathy for the Nazis to point out that the retrospective legal basis on which they were tried was extremely problematic. Radhabinod Pal, the dissenting Indian judge at the Tokyo war-crimes trials (1946–48), condemned that process as a “victor’s charter.”4 Although Pal was moved by his personal hostility to Western imperialism, his closely reasoned dissent became a landmark in international law, making the case for an “even justice”5 grounded in an international “impartial court” with universal jurisdiction. Pal praised moves dating back to a 1920 meeting at The Hague to create an International Court of Criminal Justice, hailing it as a “wise solution to the problem.” By excluding from the dock Allied leaders themselves (who might have been arraigned for the mass bombing of civilians) as well as Emperor Hirohito and his relatives (who were exempted from prosecution by wary occupation authorities), the Tokyo Tribunal proved highly selective in its choice of targets. Telford Taylor, one of the U.S. Nuremberg prosecutors, saw the dangers of selectivity and called upon the United States and other leading nations to create a “permanent international penal jurisdiction” in order to avoid the German perception that Nuremberg “was for Germans only.”6 Does the ICC, which was finally brought into being by the Rome Statute of 2002, fulfill Pal’s hope for “even justice,” or does it continue the Nuremburg tradition of “expressive” trials—procedures legal in form, but with questionable legal bases, that are held for “higher” emotional or moral reasons? And do “expressive” trials not drift perilously close to becoming show trials? Is the ICC supporting international norms and values, or has it come to serve mainly the interests of Western powers? How far is the broader rise of international tribunals, symbolized by the ICC, helping to promote liberal notions of justice? And is there a risk that the proliferation of such tribunals could perversely end up undermining the promotion of justice? 6 Housed at The Hague, the ICC currently has 122 state parties, while a further 31 countries have signed the Rome Statute without ratifying it. A novel feature of the Rome Statute is that the ICC can act without the authorization of the UN Security Council or any particular state; rather, the ICC is deemed to create a parallel form of jurisdiction which is said to “complement” that of the nation-state. To date, the ICC has acted with regard to eight “situations,” opening 21 cases and indicting 36 people. Of those, it has so far convicted just two, while spending a growing budget that in 2009 alone added up to almost $118 million, all of it contributed by the court’s “state parties.” Although preliminary proceedings have begun in cases from Afghanistan, Colombia, Georgia, Honduras, Ukraine, and Venezuela, all those indicted so far have been African, as have been both of those convicted (they are from the Democratic Republic of Congo). This record has caused the African Union to threaten mass withdrawal from the Rome Statute, and to demand that serving heads of state be exempted from ICC indictment while in office. Two major ICC debacles stand out. The first was its ineffectual 2008 indictment of Sudan’s President Omar al-Bashir for crimes against humanity in relation to Darfur. A defiant Bashir retains his post and travels the region with no fear of arrest. The second was the December 2014 decision by the court’s chief prosecutor to drop a case against Kenyan president Uhuru Kenyatta for fomenting 2007 postelection ethnic violence. Kenya, an ICC state party, had covertly sabotaged the investigation.7 The ICC’s limits in dealing with sitting heads of state and ongoing conflicts are painfully clear, and raise the question of how a transitional-justice model can work when there has been no real transition. China, India, Israel, Russia, and the United States are all nonparties to the ICC, and the Arab states (except Jordan) have stayed out as well. The United States, critics charge, prefers 7 special UN-sponsored tribunals, such as those that the Security Council set up to deal with Rwanda and the former Yugoslavia, to the more freewheeling ICC. Although the United States has refused to ratify the Rome Statute, since 2005 it has shifted from an adversarial position and begun working as an ally of the ICC, leading detractors to charge that the court has become “an instrument in the toolkit of major powers responding to instability and violence in weaker states.”8 Thus has an institution founded to pursue impartial justice become a means of managing political problems under the rubric of impartial justice’s moral authority. If this is how the flagship project of “transitional justice” operates, then we might wonder if the adjective—which refers to the political project of promoting certain kinds of regimes over others—outweighs the noun. The ICC’s recent travails underline Victor Peskin’s idea that courtroom trials run parallel with—and may be overshadowed by—“virtual trials,” which are in fact political struggles between the international community and the states where war crimes took place, as well as factional fights within those states. Virtual trials often loom large because international tribunals so frequently represent attempts to lay a scrim of morally superior judicial ritual atop stubborn, messy political realities. Simply put, international tribunals have been created to solve political problems that lie well beyond their capacity to fix. What is needed instead is not more tribunals, but rather more scope for creative political fixes of the sort that legal experts are unlikely ever to generate. Peskin concludes that tribunals (often meaning their chief prosecutors) have sometimes been able to win greater cooperation from targeted states through the use of strategies “ranging from shaming to negotiation.”9 In other words, a tribunal’s ability to deliver justice hinges on how politically skilled its leadership is. If chief prosecutors closet themselves with piles of 8 documents, their courts are likely to fail. Peskin argues that such prosecutors must be good at conciliation and deal-making, even if this risks the appearance of “an exercise that has more to do with politics than with law.”10 In the end, tribunals and truth commissions are quasi-legal processes that have as their goal a stable and fair political settlement. Former International Criminal Tribunal for Rwanda legal advisor Kingsley Chiedu Moghala’s extensive research leads him to argue that “using international war crimes trials as a frontline approach to preventing or deterring genocide is a failing policy.”11 Since all supranational transitional justice arrangements are essentially political, they lack the legitimacy to effect real change. Replacing Politics with Legalism In addition to the paucity of evidence that transitional-justice solutions are effective, there is the problem that the entire transitional-justice edifice—whether in its tribunal or its truth- commission form—rests on dubious claims of moral superiority that are used to trump all criticism of transitional justice’s underlying ideological project, which is to replace politics with legalism.12 The matter was set forth most clearly a half-century ago in a seminal book by the political theorist Judith N. Shklar.13 A Harvard academic who as a child fled to North America from her native Latvia in order to escape the Nazis, Shklar was deeply skeptical about the ethical underpinnings of the Nuremburg trials. She became convinced that those who sought to emphasize the priority of justice over politics were quietly subscribing to an ideology—almost always kept implicit—that she called “legalism.” Advocates of legalism liked to insist that the pursuit of justice was somehow suprapolitical and even beyond criticism. Contending that legalism does not stop at merely separating law from politics Shklar charged that legalism looks down on politics 14 9 The divorce of law from politics is, to be sure, designed to prevent arbitrariness, and that is why there is so little argument about its necessity. However, ideologically legalism does not stop there. Politics is regarded as not only something apart from law, but as inferior to law. Law aims at justice, while politics looks only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideology. Justice is thus not the policy of legalism, it is treated as a policy superior to and unlike any other.15 Shklar set out to make a countercase for the indispensability of politics. Only by engaging in the give-and-take of sharing and competing for power, she insisted, can a society thrash out its conflicts and disagreements. Political problems need political solutions. Yet once the “crimes against humanity” designation is applied, such solutions are displaced by legalistic steps that invoke the rhetoric of “justice” while failing to solve the irreducibly political problems that troubled societies continue to face. In a 1986 preface to the second edition of her book, Shklar noted that the original edition had “offended virtually all of the lawyers who read it” by treating legalism as a political ideology. Most of them much preferred to assume that legal ideas and institutions are “highly discrete practices” immune from politics. Although the questioning of such assumptions has become more common since Shklar’s time, the problem of regarding law as morally superior to mere politics persists—and is particularly acute in the world of transitional justice. Shklar observed that legalism reveals itself most clearly “at the margins of normality,” as in the Nuremburg and Tokyo tribunals, and noted with some apparent satisfaction: “There have been many wars since then and endless crimes against humanity, but there has been no repetition of the trials that followed the Second World War.”16 Shklar saw Nuremburg as a broadly successful intervention, but largely because the tribunal formed part of a clear and well-crafted political project, and was hence far more than a 10 legalistic exercise. She seemed to view the lack of new international tribunals up to 1986 as betokening a grasp of their shortcomings and hence vindicating her arguments. She died in 1992, before the vogue for transitional justice that came on the heels of the South African Truth and Reconciliation Commission, and would later produce the ICC. What would Shklar have made of this vogue? Her 1986 preface includes an important defense of something she calls “tribunality.” By this, she means that law is an extension of politics, rather than a moral high ground towering somewhere above political life. Tribunality, says Shklar, is “inherent in functioning assemblies, bureaucracies, mediators of all kinds and extends even down to parents as they try to be fair in distributing rewards and penalties’.17 Shklar’s support for the creative legalism found at Nuremburg, which can be justified ‘as an act of legalistic statesmanship and on the basis of its immediate effects on German politics’ (170) offers the lineaments of a blueprint for tribunality: the use of power to promote fairness, which may be done through courts, or through more overtly political institutions. Tribunality is an extension of politics, rather than a moral high ground floating somewhere above the earthly realm; war crimes trials proved worthwhile in the case of the Nazis precisely because of the existing legalistic tradition of German jurisprudence.”18 Law and politics thus form part of what we might term (after Shklar) the “tribunality continuum.” This means that complex political problems can best be addressed by the considered use of tribunality, rather than by merely legalistic solutions. Nuremburg, in her view, showed how tribunality can use power to promote fairness. Yet Shklar warned that international courts can work only in certain cultural and geopolitical circumstances. The Nazi war-crimes trials proved worthwhile precisely because of the existing tradition of German jurisprudence. The Tokyo trials, by contrast, “achieved nothing 11 whatever.” In short, “one could justify the Nuremburg trials only on political grounds, and the Tokyo ones not at all.”19 While the U.S. occupation of Japan achieved much success despite the Tokyo tribunals’ failure, this success was not juridical. It was political. A defeated aggressor was brought back into the family of nations, with new-minted or remodeled institutions that remain largely unchanged seven decades later. The Constitution of 1947, written by General Douglas MacArthur’s staff, has yet to be amended. In large measure, the enduring character of the occupation-era reforms reflects the Japanese people’s sense that they are relatively fair. The transitional-justice industry does not, as a rule, pay much attention to the messy particularities of history. Instead, it seeks to generalize an approach that is only likely to work under tightly circumscribed conditions. Moral grounds, never political ones, are used to justify all transitional-justice interventions. What should be done in cases such as Cambodia or Rwanda, where tens of thousands of perpetrators may have killed hundreds of thousands of victims? Are criminal proceedings a useful response to such terrible events? Would convicting some perpetrators amount to a form of justice? Does such justice serve the purposes of “transition”? Does it support moves toward a more open and liberal-democratic political order? The logical conclusion from Shklar’s analysis is that the world needs less transitional justice, and more use of judicious tribunality. In order to right wrongs, to punish the cruel, and to secure some tentative gains for liberalism—albeit Shklar’s ever-watchful “liberalism of fear”— real politics and not some putatively suprapolitical legalism must openly take center-stage. As the case of Cambodia illustrates, the notion of transitional justice is based on an implicit moral hierarchy, with “justice” at the top, politics below, and security measures at the bottom. 12 This might be summarized as “Justice: Try Khmer Rouge leaders. Politics: Craft a democratic polity. Security: Remove Khmer Rouge from power.” Note that the last item on the list must be the first to happen on the ground. The Khmer Rouge were toppled from power in January 1979, but this has not become an action imbued with much prestige or importance. That is mostly because it was carried out by the army of communist Vietnam, an adversary of the United States and the pro-Western regional grouping, ASEAN. The recrafting of the Cambodian polity by the UN Transitional Authority in Cambodia (or UNTAC, 1992–93), based upon a long process of peace talks, has by contrast been seen as an important moral mission of the international community and a prototype for UN-brokered political transitions since. Yet simply installing some form of elected government in Cambodia was insufficient to complete this moral project: At least partly because of Western guilt at having failed to act against the murderous Khmer Rouge regime in the 1970s, there were persistent demands for an international tribunal to prosecute its leading figures. I am not suggesting that those responsible for mass murder should go unpunished, but only noting that the pressing of criminal charges in such a situation will inevitably run into moral, political, and practical problems. Up to two-million people were killed in Cambodia between April 1975 and January 1979– almost a quarter of the country’s population.20 The number of perpetrators was huge as well, and some perpetrators had become victims. The first trial was that of Khaing Guek Eav (better known as Duch), the commandant of the S-21 detention and interrogation center. This former school became the place where Khmer Rouge cadres were locked up once the paranoid movement began to turn on its own. Many of the thousands who were held in unspeakable conditions, tortured, and executed at S-21 had themselves taken part in the torture or execution of others. Indeed, many guards at S-21 met the 13 same fate as those whom they had interrogated. The distinction between victims and perpetrators was not just blurred, it was often nonexistent. Much of the motivation for the Khmer Rouge tribunal is political. There is collective international regret that UNTAC came and went without loosening the authoritarian grip of Prime Minister Hun Sen and his Cambodian People’s Party (CPP), which has been in power since 1979. The tribunal represents an implicit attempt to destabilize Hun Sen and promote regime change, in keeping with the longstanding Western desire for a “noncommunist opposition” that can transform Cambodia for the better.21 The problem with this game is that two can play. While donors to the Extraordinary Chambers in the Courts of Cambodia (ECCC) may privately hope to delegitimize Hun Sen by taking on Cambodia’s “culture of impunity,” the premier and his aides skillfully point to the trials to highlight their own pet themes. They love to dwell on how their government freed Cambodians from the killing fields, and has since rebuilt the country “from scratch.” If the source of Cambodia’s problems lies in the Khmer Rouge past, they are in effect saying, then the solution to them lies with Hun Sen and the CPP. If, as looks extremely probable, Hun Sen’s government will be able to bar any suspects beyond the original five from being indicted, then liberal ideals of global justice will have taken a hard hit. The Khmer Rouge tribunal may then stand exposed as a high-water mark, showing where the real-world effectiveness (if not the lingering popularity) of the transitional-justice trend began to recede. Some of the tribunal’s problems have been procedural and technical, but the basic shortcoming has been the inability of the UN and major donors such as Japan, Australia, the United States and Germany to resist the CPP regime’s endless game-playing. In truth, a fully Cambodian court with UN technical support would have been a more viable option – albeit more transparently under Hun Sen’s control .22 The ECCC has been termed a ‘black 14 sheep’ among UN-backed tribunals,23 but that does not let “hybrid” justice off the hook: The problems of the Cambodian case, like others at the “margins of normality,” are simply more visible than those elsewhere. Prosecuting Heads of State Take the more straightforward case of an elected leader who apparently abuses her authority. In an electoral democracy, should the voters decide her fate at the next ballot? Or should she face impeachment and formal removal from office by a constitutional, political process? Or street protests and demands for resignation? Or should she be hauled up on domestic criminal charges, and possibly sentenced to jail? In the twenty-first century, recourse to judicial measures to address all manner of abuses of power has become a kneejerk reaction, one which testifies to the inexorable rise of legalism. Ellen Lutz and Caitlin Reiger cite Shklar’s criticism of political trials as legal proceedings in which powerful actors seek to eliminate their political enemies, but then argue that such cases are now in the minority.24 They distinguish, in effect, between “bad” political trials, in which politics gains the upper hand over justice, and “good” political trials, which reflect a desire for public accountability. But the distinction may not always be so clear. But the distinction is not as straightforward as this narrative suggests. Lutz takes as her starting point a campaign to pursue former Philippine dictator Ferdinand Marcos through the courts on corruption charges. Yet parallel campaigns to indict another Philippine president, Joseph Estrada, were hijacked by his political opponents: In countries where corruption is ubiquitous, just about anyone who has ever held public office can be hit with corruption charges. Under such conditions, too much legalism may bring not greater order, but deadlock or even chaos. However superficially attractive it may seem, criminalizing political leaders for their bad behavior or questionable decisions risks devaluing or undermining the political process. This tendency has assumed an extreme form in Thailand, where no fewer than three prime ministers 15 were judicially ousted between 2008 and 2014, spawning strife, instability, and a military coup. Samak Sundaravej, was thrown out in 2008 on a technicality for having hosted a televised cooking show—an example of legalism gone mad. There are times when invoking judicial mechanisms in order to bring down a controversial figure or resolve a political contention may backfire and rouse rather than settle passions. Truth Commissions Although the transitional-justice industry is best known for the ICC and other criminal tribunals, the exponential growth of truth commissions has been a parallel development over the past two decades. A classic truth commission belongs to the time after a transition away from authoritarianism has occurred, when a more open political order is being built. The task is to investigate (but not prosecute) the misdeeds of the old, unfree regime. Truth commissions typically seek to make an accurate public record of the past, to give victims some sense of acknowledgment and “closure,” to “name and shame” (but not jail or fine) perpetrators, to promote society-wide reflection and reconciliation, and to suggest partial remedies such as reparations for documented victims.25 In some cases, truth commissions are a second-best recourse for those cases where there are too many perpetrators to try, or where putting former regime officials in the dock might be too explosive. But increasingly, such commissions are promoted as morally desirable projects in their own right, unrelated to questions of criminal prosecution. Much as the shadow of Nuremburg looms over the ICC and other hybrid courts, the South African TRC is the model for truth commissions. It had various quasi-judicial features 16 including extensive witness hearings, and it was empowered to issue amnesties. Most of the scholarly attention paid to truth commissions has gone to what Patricia Hayner terms “strong” versions of them (her use of “strong” versus “weak,” we should note, allows her to avoid harder discussions about “successful” versus “failed”). In the strong category she places not only the South African TRC, but commissions in Guatemala, Morocco, Peru, and Timor Leste.26 Strong commissions typically combine a potent sense of purpose with extensive public engagement, and come up with well-crafted recommendations that are broadly well-received. Hayner has offered a checklist of desirable features for strong commissions, including a wide mandate, investigative powers, a term of two to three years, a sizeable budget, and a staff numbering at least a hundred people.27 Other assets for commissions include a sharply defined time period to examine, considerable public buy-in, sympathetic media coverage, strong domestic and international political support, and lack of national-government interference. Of the more than forty truth commissions that have been created to date, only a small share have met Hayner’s technical criteria for strength. But we need to work with a much broader set of accountability criteria: To what extent did these commissions bring about genuine forms of scrutiny? How far did they lay the groundwork for appropriate sanctions? Most commissions are flawed, many are weak, and some border on outright dysfunction. The prospect of finding fault with an enterprise that holds up as its guiding ideals such universally praised concepts as justice, truth, and reconciliation does not appear to be an appetizing one in many eyes. Hence the stealthy mushrooming of second- and third-rate truth commissions has drawn remarkably little critical scrutiny. For the sake of argument, let us assume (even if we doubt this to be the case) that the rare “strong” commissions are relatively unproblematic. We must still ask: Is there any evidence that 17 weak commissions do any good? Could some of them actually prove harmful, by stirring up dark memories, exacerbating conflicts, destabilizing regimes, or even generating fresh rounds of violence? In short, can one say that any truth commission is always better than no truth commission? A brief discussion of two failed Thai inquiries may help to illustrate some of the problems faced by truth commissions. In 2005, the Thai government established a National Reconciliation Commission (NRC) to examine the resurgence of separatist violence in the country’s Muslim-majority southern provinces. It was chaired by distinguished former prime minister Anand Panyarachun.28 After commissioning an impressive series of research projects, the NRC put out in mid-2006 a 132-page final report that contained many airy references to justice, but no serious discussion of either the perpetrators of violence or the underlying questions of governance and representation facing the country. This anodyne document swiftly sank without a trace while the premier who had commissioned it, Thaksin Shinawatra, was ousted in a September 2006 military coup. In the 2011 edition of her standard book on truth commissions, Hayner does not even mention the NRC. Like many such bodies, Thailand’s NRC was not intended simply to promote truth or reconciliation. Rather, it was a political project initially designed to deflect attention from Thaksin’s botched handling of the southern conflict. Soon enough, however, the commission’s proceedings became a focus for opposition to the Thaksin government led by a group of liberal royalists, and so helped create the conditions for the coup. The southern conflict was not a transitional-justice problem; it was a political problem, in need of a political solution. Much the same was true of the Thai Truth for Reconciliation Commission mentioned at the outset of this essay. By far the greatest number of those killed in the 2010 violence had been 18 pro-Thaksin civilian protestors shot by the military, but the commission’s report blamed mainly the demonstrators.29 Leading commission members were known allies of the anti-Thaksin movement, and their report studiously avoided talking about the longstanding policy of impunity for state officials that allows the Royal Thai Army to be so free in its use of force. This unwillingness to criticize the military helped to create the conditions for yet another coup, this time in May 2014. As window-dressing, the commission even invited Hayner and other transitional-justice luminaries to visit Bangkok. The commission deployed the rhetoric of transitional justice despite a patent lack of the powers, resources, or political support that a strong truth commission requires. These two Thai cases illustrate a disturbing trend: the rise of half-baked truth commissions that “talk the talk” of transitional justice to disguise serious shortcomings. For more than a century, commissions of inquiry have investigated matters of grave public concern without overdoing claims regarding justice and truth. Outstanding examples in the English- speaking world include the two inquiries into the sinking of the Titanic, the Warren Commission, and the Franks Commission on the Falklands War. All had their shortcomings, but at least none came cloaked in the specious moralism of many recent transitional-justice exercises. For the most part, we need more (and better) public inquiries, and fewer truth commissions. Transitional Justice and History In Postwar, his magisterial survey of Europe since 1945, Tony Judt argues that institutional efforts to expose past injustices (such as the construction of Holocaust memorials and museums) proved less important than the fostering of regular historical inquiry. Such history can contribute to disenchantment and disruption, and as Judt warned, “it is not always politically 19 prudent to wield the past as a moral cudgel with which to beat and berate a people for its past sins.” Yet even bearing this in mind, he still believed that the historian’s “rigorous investigation and interrogation” of the past remained of central importance.30 The relationship between transitional justice and history is a complex one. The Khmer Rouge tribunal, for example, cannot function without research and evidence provided by professional historians. Yet international tribunals are concerned with securing legal outcomes and not with exploring messy historical debates. As such, they may easily become moral cudgels of exactly the kind that Judt warns against. Catalyzing public discussion about the Khmer Rouge period was arguably one of the Cambodia tribunal’s greatest contributions, but was “only tangentially related to its mandate.”31 Would funding and disseminating high-quality historical studies of the Khmer Rouge era have accomplished more than holding trials? The 1983–84 Argentinian National Commission on Disappeared People (CONADEP), which pre-dated the South African TRC, was too much like a classic presidential commission of “the great and the good” to satisfy most transitional-justice specialists. Yet in under a year CONADEP produced the Nunca Más (Never Again) report, which became a best-seller and has shaped subsequent historical memories and understandings of the thousands of “disappearances” and other rights violations committed by the military dictatorship that ruled Argentina from 1976 to 1983. CONADEP’s successes were based on strong political will and widespread popular support, while Nunca Más was crafted by Commission president Ernesto Sabato, a brilliant novelist, who included poignant verbatim quotations from witness statements on virtually every page.32 The recent flounderings of the ICC, the manifest shortcomings of the Khmer Rouge tribunal and other ad hoc international or hybrid courts, the proliferation of mixed-quality truth 20 commissions—all illustrate the failures of global legalism and undermine the claims to moral superiority that underpin the transitional-justice industry. It is time to curb our well-intentioned celebratory impulses and recognize that, just as earlier waves of democratic transitions are now faltering, so has transitional justice passed its peak. Redressing matters will involve acknowledging that transitional justice is ultimately politics in the guise of legalism, and that the problems of postconflict and posttransition societies are essentially political ones. It is time to desist from the impulse to laud every transitional- justice initiative and instead carefully assess what seems viable, realistic, and unlikely to do further harm . Law does not exist on a higher moral plane above politics, but is simply part of a continuum of solutions. Let us instead dust off Shklar’s too-long-neglected idea that representative assemblies (including parliamentary committees) or even benevolent bureaucracies can perform much of the work that transitional justice assigns to trial chambers and truth commissions: justice can best be achieved through the appropriate use of political power to promote fairness, what Shklar terms tribunality Solutions to complex political problems need to be more creative, sometimes deploying legal mechanisms, but never in purely legalistic ways. By and large, the international community should get out of the business of putting people on trial. Let fact-finding go forward, by all means, but do not lard it with overreaching talk of “truth and reconciliation.” Above all, we need good historical research into deadly conflicts, in accessible formats, widely disseminated and debated in the very places where the violence has taken place. The goals of accounting for the past and of preventing future mass violence are shared by all: the only question is how best to pursue these noble ideas. NOTES 21 The author gratefully acknowledges funding for this project from a Leverhulme Trust Major Research Fellowship, 2011–14, F00 122BC. He also thanks Ricardo Blaug for his invaluable comments. 1 Kathryn Sikkink, The Justice Cascade (New York: Norton, 2011), 266–70. Sikkink’s figure for the number of truth commissions is rather conservative; Hayner names forty (pp. 256-64), and even her list is arguably not complete. 2 See, for example, Kathryn Sikkink’s claims that “a world without any accountability for major episodes of human rights violations is receding,” Justice Cascade, 262; or Geoffrey Robertson’s assertion that “war crimes jurisprudence has an epic quality which is beginning to be to be cited in national courts around the world,” in his Crimes Against Humanity: The Struggle for Global Justice (New York: New Press, 2006), xxxii. 3 See Ricardo Blaug, “Direct Accountability at the End” in Stuart White and Daniel Leighton, Building a Citizen Society: The Politics of Republican Democracy (London: Lawrence and Wishart, 2008), 101–11. 4 Radhabinod Pal, Crimes in International Relations (Calcutta: University of Calcutta, 1955), 195–229 and 403. 5 Timothy Brook , “The Tokyo Judgment and the Rape of Nanking,” Journal of Asian Studies 60 (2001): 696. 6 Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No. 10, (Washington DC: US Government Printing Office, 1949), 112. 7 For a discussion see Karen J. Alter, “The Trials and Tribulations of Prosecuting Heads of States: Kenyatta and the ICC,” www.washingtonpost.com/blogs/monkey-cage/wp/2014/12/19/the-trials-and- tribulations-of-prosecuting-heads-of-states-kenyatta-and-the-icc. 8 David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (New York: Oxford University Press 2014), 187. 9 Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (New York: Cambridge University Press, 2008), 236–37. 10 Peskin, International Justice, 243. 11 Kingsley Chiedu Moghala, Global Justice: The Politics of War Crimes Trials, (Stanford CA: Stanford University Press, 2008), 178. 12 These are closely linked to what Kent terms the “celebratory impulse.” See Lia Kent, The Dynamics of Transitional Justice: International Models and Local Realities in East Timor (Abingdon: Routledge 2012), 205–6. 13 Judith N. Shklar, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1964; 2nd ed. with new preface, 1986). http://leeds.summon.serialssolutions.com/2.0.0/link/0/eLvHCXMwY2AwNtIz0EUrE9LMUtJSTFPT0oyBHWijNAPzVHPQfXaJFgZGycACEbSVONjHJMTJJCjMNIgHUZ65CTEwpeaJMji4uYY4e-giNiPEF0AOY4gHHY9cWJqfEg_sXsaXggbo4oFldLyvZ6iBYTz4-BEzYBfJWIyBBdidTpVgUDBONjc2MjROSjW2BLVWkixSU82A7XLQITbmpknmlpIMlmRbAwDs00jE http://leeds.summon.serialssolutions.com/2.0.0/link/0/eLvHCXMwY2AwNtIz0EUrE9LMUtJSTFPT0oyBHWijNAPzVHPQfXaJFgZGycACEbSVONjHJMTJJCjMNIgHUZ65CTEwpeaJMji4uYY4e-giNiPEF0AOY4gHHY9cWJqfEg_sXsaXggbo4oFldLyvZ6iBYTz4-BEzYBfJWIyBBdidTpVgUDBONjc2MjROSjW2BLVWkixSU82A7XLQITbmpknmlpIMlmRbAwDs00jE 22 14 Shklar, Legalism, 111. 15 Judith N. Shklar, Legalism (Cambridge MA: Harvard 1964), 111 (second edition with new preface, Harvard 1986). 16 Shklar, Legalism, 1986, xiii. 17 Shklar, Legalism,1986, viii–xi 18 Shklar, Legalism, viii–xi 19 Cited in Andreas Hess, The Political Theory of Judith N. Shklar, Exile from Exile (New York: Palgrave-Macmillan, 2014), 69. 20 For a detailed discussion of this contentious question, see Bruce Sharp, “Counting Hell”, 2008, www.mekong.net/cambodia/deaths.htm. 21 See John D. Ciorciari, “History and Politics Behind the Khmer Rouge Trials,” in John D. Ciorciari and Anne Heindel, eds., On Trial: The Khmer Rouge Accountability Process (Phnom Penh: DC-CAM, 2009), 20–21; and the discussion in Duncan McCargo, “Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribunal,” International Affairs 87 (2011): 613–27. 22 For an argument along these lines, see John D. Ciorciari and Anne Heindel, Hybrid Justice, The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor MI: University of Michigan Press, 2014), 274–77. 23 Ciorciari and Heindel, Hybrid Justice, 10. 24 Ellen L. Lutz, and Caitlin Reiger, “Introduction” in Ellen L. Lutz and Caitlin Reiger, eds., Prosecuting Heads of State (New York: Cambridge University Press, 2009), 10-11. 25 See Ernesto Verdeja, Unchopping a Tree: Reconciliation in the Aftermath of Political Violence (Philadelphia: Temple University Press 2009), 112–13. 26 Patricia Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York: Routledge, 2011) 27–44. 27 Hayner, Unspeakable Truths, 285–86. 28 See Duncan McCargo, “Thailand’s National Reconciliation Commission: A Flawed Response to the Southern Conflict,” Global Change, Peace and Security 22 (February 2010): 75–91. 29 Duncan McCargo and Naruemon Thabchumpon, “Wreck/Conciliation: The Politics of Truth Commissions in Thailand,” Journal of East Asian Studies 14 (2014): 377–404. 30 Tony Judt, Postwar: A History of Europe Since 1945 (New York: Penguin, 2005), 830. 31 Ciorciari and Heindel, Hybrid Justice, 258. 32 The whole book may be read online at www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_000.htm. For an excellent 23 discussion, see Emilio Crenzel, Memory of the Argentina Disappearances: The Political History of Nunca Más (New York: Routledge 2012). 
work_afkq2zf2mfdfba4banuelymesi	----	eap1200011a Okasha, S. (2012). Social justice, genomic justice, and the veil of ignorance: Harsanyi meets Mendel. Economics and Philosophy, 28(1), 43-71. https://doi.org/10.1017/S0266267112000119 Publisher's PDF, also known as Version of record Link to published version (if available): 10.1017/S0266267112000119 Link to publication record in Explore Bristol Research PDF-document Copyright Cambridge University Press. University of Bristol - Explore Bristol Research General rights This document is made available in accordance with publisher policies. Please cite only the published version using the reference above. Full terms of use are available: http://www.bristol.ac.uk/red/research-policy/pure/user-guides/ebr-terms/ https://doi.org/10.1017/S0266267112000119 https://doi.org/10.1017/S0266267112000119 https://research-information.bris.ac.uk/en/publications/170a0970-2b62-4e96-bc1b-b23c3760fe88 https://research-information.bris.ac.uk/en/publications/170a0970-2b62-4e96-bc1b-b23c3760fe88 Economics and Philosophy, 28 (2012) 43–71 Copyright C© Cambridge University Press doi:10.1017/S0266267112000119 SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE: HARSANYI MEETS MENDEL SAMIR OKASHA University of Bristol, UK samir.okasha@bristol.ac.uk John Harsanyi and John Rawls both used the veil of ignorance thought experiment to study the problem of choosing between alternative social arrangements. With his ‘impartial observer theorem’, Harsanyi tried to show that the veil of ignorance argument leads inevitably to utilitarianism, an argument criticized by Sen, Weymark and others. A quite different use of the veil-of-ignorance concept is found in evolutionary biology. In the cell- division process called meiosis, in which sexually reproducing organisms produce gametes, the chromosome number is halved; when meiosis is fair, each gene has only a fifty percent chance of making it into any gamete. This creates a Mendelian veil of ignorance, which has the effect of aligning the interests of all the genes in an organism. This paper shows how Harsanyi’s version of the veil-of-ignorance argument can shed light on Mendelian genetics. There turns out to be an intriguing biological analogue of the impartial observer theorem that is immune from the Sen/Weymark objections to Harsanyi’s original. 1. INTRODUCTION In A Theory of Justice, Rawls (1971) invoked the device of an ‘original position’ to study the problem of social justice. He imagined someone Acknowledgements: Thanks to Ken Binmore, Cedric Paternotte, Jonathan Grose, Ellen Clarke and Johannes Martens for discussion. Thanks to an anonymous referee for Economics and Philosophy, and to the editor, for detailed comments. Thanks also to audiences at Oxford, Vienna and Bristol where versions of this material were presented. Financial support from the UK Arts and Humanities Research Council and from the European Research Council is gratefully acknowledged. 43 44 SAMIR OKASHA forced to choose between alternative social arrangements from behind a ‘veil of ignorance’, i.e. without knowing which member of society she will become. Rawls maintained, controversially, that the rational agent would choose the social alternative which maximized the prospects of the least well-off member of society - the maximin principle. As is well known, Rawls was not the first to use a veil of ignorance argument to think about social justice. In two famous papers, Harsanyi (1953, 1955) imagined a ‘sympathetic, impartial observer’, again tasked with choosing between social alternatives from behind a veil; a still earlier version of the idea was sketched by Vickrey (1945). By contrast with Rawls, Harsanyi argued that the veil-of-ignorance thought experiment leads inevitably to utilitarianism, an argument that has come to be called the ‘impartial observer theorem’. Harsanyi arrived at this conclusion by assuming that the impartial observer has an equal chance of becoming any individual, and chooses between social alternatives in accordance with expected utility maximization. Most recent commentators regard Harsanyi’s treatment of the veil of ignorance as superior to Rawls, given Rawls’s largely unmotivated rejection of orthodox decision theory. But even so, controversy surrounds the impartial observer theorem. A number of authors, notably Sen (1976, 1977, 1986), Weymark (1991), Roemer (1998) and Mongin (2001), have argued that Harsanyi’s theorem does not constitute a good argument for classical utilitarianism, for reasons explained below. There is a large and well-known literature on this issue. What is much less well-known is that the veil-of-ignorance concept has also surfaced in evolutionary biology, in a context quite remote from the traditional Rawls/Harsanyi debate. During meiosis – the cell- division process by which sexually reproducing organisms make gametes – the chromosome number is halved: only one of each chromosome pair is passed to each gamete. Most of the time meiosis is ‘fair’, so that any particular gene has a 50% chance of making it into any gamete – a fact known as Mendel’s law of segregation. The law has profound evolutionary consequences, as it equalizes the interests of all the genes in the organism, ensuring they work for the common good; see section 5. Indeed fair meiosis, or Mendelian segregation, is arguably a prerequisite for the very existence of cohesive organisms such as ourselves. That fair meiosis serves to equalize genes’ interests was first emphasized by Leigh (1971), and is now an accepted biological principle. But it is only recently that the intriguing analogy between fair meiosis and the veil of ignorance has come to light. In both, randomization is used to deprive self-interested agents (genes and individuals) of information about their identity, forcing them to adopt an impartial perspective. This analogy is noted in passing by the biologists Haig and Bergstrom (1995) and Frank (2003), who cite both Rawls and Harsanyi, but the only SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 45 extended discussion of which I am aware is in a semi-popular book by Mark Ridley (2000), who mentions only Rawls.1 The aim of this paper is to consider in detail whether the traditional veil-of-ignorance concept can be used to understand Mendelian genetics. Can the Harsanyi/Rawls thought experiment shed light on the actual process of fair meiosis? I suggest that it can, and in particular that there is an interesting biological analogue of the impartial observer theorem. This may sound like a rather unlikely project, so it is worth briefly explaining the motivation for it, which is three-fold. Firstly, there are many interesting parallels between economics and evolutionary biology, arising because the concept of utility in the former plays a similar role to the concept of fitness in the latter. The importing of game-theoretic concepts into biology is the best known illustration of this role-isomorphism, but is not the only one. The current project also trades on the utility/fitness connection, and is in part an attempt to better understand the elusive relation between these two concepts. Secondly, there is plenty still to say about how the veil-of-ignorance idea applies to genetics. Ridley’s discussion, though illuminating, is compromised by his considering only Rawls’s version of the veil of ignorance. Since Harsanyi arguably had the more coherent version, his is the better place to look for a link with Mendelian genetics. Additionally, Ridley’s treatment contains a subtle confusion between proximate and ultimate explanations, as I argue below, and ends up locating the link in the wrong place. Thirdly, my project fits naturally with a philosophically exciting way of thinking about Darwinian evolution, which treats genes as if they were rational agents trying to maximize a utility function. This approach, aptly dubbed the ‘heuristic of personification’ by Sober (1998), permeates mod- ern evolutionary thinking and is of undoubted value for some purposes. But doubts over its legitimacy have often been raised.2 By modelling genes as individuals behind a veil of ignorance, I hope to illustrate both the power and the limitations of the personification heuristic. The structure of this paper is as follows. Section 2 expounds Harsanyi’s version of the veil-of-ignorance argument. Section 3 outlines the now-standard objections to the argument due to Sen (1986) and 1 Skyrms (1996) discusses what he calls the ‘Darwinian veil of ignorance’ in his work on the evolution of the social contract, but his use of this notion is unrelated to the one explored here, as it has nothing in particular to do with Mendelian genetics. The same is true of Binmore’s (2006) attempt to locate the Rawls/Harsanyi ‘original position’ in an evolutionary context. 2 Personifying genes as an aid to evolutionary reasoning was employed extensively by Dawkins in The Selfish Gene (1976), though the roots of the idea are found in W.D. Hamilton’s papers from the 1960s (1964). Haig (1997) presents a sophisticated defence of the heuristic, and Godfrey-Smith (2009) a sophisticated critique. 46 SAMIR OKASHA Weymark (1991). Section 4 provides some biological background on Mendelian genetics. Section 5 considers the evolutionary function of fair meiosis, and its implications. Section 6 explores two different ways of modelling fair meiosis in Harsanyi’s framework. Section 7 examines paral- lels, conceptual and formal, between Harsanyi’s impartial observer argu- ment and our evolutionary analogue. It is argued that the Sen/Weymark critique of Harsanyi’s argument does not apply to the evolutionary ana- logue. Section 8 compares my analysis with Ridley’s. Section 9 concludes. 2. HARSANYI’S IMPARTIAL OBSERVER ARGUMENT Harsanyi’s own formulation of the impartial observer argument is rather elliptical, so I draw on the careful reconstructions by Weymark (1991) and Mongin (2001). The context is a standard social choice setting. There is a finite set of social alternatives S, which could for example be alternative distributions of resources among society’s members. There is a finite set of individuals I . Each individual has a (weak) preference order over the alternatives in S. The preference order of the i th individual will be denoted Ri ; so ‘x Ri y’ means that the i th individual weakly prefers social alternative x to y. Harsanyi assumes further that each individual has a preference order over the set of lotteries whose prizes are the members of S, i.e. the set of probability distributions over S, denoted �S. These lotteries will be called simple lotteries (to be contrasted with the extended lotteries below). Thus for example if S = {x, y, z} then one simple lottery is < P (x) = 14 , P (y) = 1 2 , P (z) = 14 >. Obviously, any alternative x in S can be identified with the simple lottery that gives x probability 1 of occurring. The point of consid- ering preferences over lotteries is to license the introduction of cardinal utility. Each individual’s preferences over �S are assumed to satisfy the von Neumann–Morgenstern (vNM) axioms, hence can be represented by an expectational utility function unique up to affine transformation. Harsanyi then imagines a hypothetical ‘impartial observer’ who is sympathetic to the interests of the members of society, and is able to imagine himself in the role of any member. The observer can evaluate ‘extended alternatives’ of the form ‘being individual 2 in social alternative x’. An extended alternative is thus an ordered pair of an individual and a social alternative; the set of all extended alternatives is I × S. The observer is assumed to have a preference order over this set; thus he can make judgements such as ‘I would prefer to be individual 2 in alternative x than individual 3 in alternative y’. Harsanyi next considers the set of lotteries over the extended alterna- tives, or the ‘extended lotteries’3, denoted �(I × S). He assumes that the 3 This terminology comes from Weymark (1991). SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 47 impartial observer has a preference order over the extended lotteries that satisfies the expected utility axioms, so is representable by a vNM utility function. We let Ro denote the observer’s preference order over �(I × S), and let uo denote a particular vNM utility representation of Ro . One subset of the extended lotteries is of particular significance: the impartial extended lotteries in which the observer has an equal chance of becoming any member of society.4 Thus if there are n individuals in set I , the lottery < P (x, i ) = 1n for all i > is the impartial extended lottery in which social alternative x definitely occurs and the observer has an equal chance of becoming any individual. (The corresponding simple lottery is < P (x) = 1 >, i.e. alternative x for certain.) Harsanyi assumes that the probability that the observer becomes any given individual is independent of the probability that any particular social alternative occurs. This means that for every simple lottery there is a unique impartial extended lottery that corresponds to it, i.e. which yields the same marginal probabilities for the social alternatives as the simple lottery. A simple example may help illustrate. Suppose there are two social alternatives x and y, and two individuals. So S = {x, y}, and I = {1, 2}. There are four extended alternatives: {(1, x), (1, y), (2, x), (2, y)}. Consider the simple lottery L 1 in which x occurs with probability 2/3 and y with 1/3, i.e. L 1 = < P (x) = 23 , P (y) = 13 >. The impartial extended lottery E1 that corresponds to L 1 is then: < P (1, x) = 13 , P (1, y) = 16 , P (2, x) = 1 3 , P (2, y) = 16 >. Note that E1 gives the observer equal chances of becoming either person, and gives alternatives x and y the same probability of occurrence as does L 1. Also, E1 makes the probability that the observer is a given person independent of the probability that a given social alternative occurs. Since the impartial observer is sympathetic to the interests of society’s members, Harsanyi proposes a link between the preferences of the observer when he is imagining himself to be a given individual, and the preferences of that individual himself. The observer’s ordering of extended lotteries in which he is definitely individual i should coincide with individual i ’s ordering of the corresponding simple lotteries. This is Harsanyi’s principle of acceptance. The underlying idea is that each individual’s personal preferences are sovereign, so when the observer imagines himself in the shoes of a given individual he thereby imagines himself to have that individual’s personal preferences. From the observer’s preference ordering over the impartial extended lotteries, Harsanyi then derives a social preference over the simple lotteries, and thus over the social alternatives themselves. He simply 4 Giving the observer an equal chance of becoming any individual is Harsanyi’s way of modelling the observer’s epistemic position from behind the veil of ignorance. Harsanyi is invoking the classical principle of indifference at this juncture, as Mongin (2001) notes. 48 SAMIR OKASHA postulates that society’s preference between simple lotteries derives from the observer’s preference between the corresponding impartial extended lotteries. Consider two simple lotteries L 1 and L 2 and the corresponding impartial lotteries E1 and E2. Harsanyi says that L 1 is socially preferable to L 2 if and only if the impartial observer would prefer E1 to E2. Since any social alternative is itself a (degenerate) simple lottery, this yields a way of ordering the social alternatives. Clearly, Harsanyi’s extraction of a social preference from the observer’s extended preferences rests on an ethical judgement. Harsanyi thinks that society should choose between alternatives (or lotteries) according to how a sympathetic observer, with an equal chance of becoming any individual, would choose between them. Intuitively this captures our concept of social justice quite well, but its ethical standing could obviously be questioned. The ingredients are now in place for Harsanyi to derive his utilitarian conclusion. Suppose R is the social preference order on the simple lotteries, defined via the observer’s extended preference order Ro . Since Ro satisfies the vNM axioms, so does R. Thus R can be represented by a vNM utility function u, which we may call the ‘social utility function’. Harsanyi then shows that the social utility function can be expressed as the average of all the individual’s utility functions. So society follows an average utilitarian rule: it ranks simple lotteries (and thus alternatives) according to the average utility that they bring to members of society. This is the impartial observer theorem. More precisely, what Harsanyi shows is this. There exist individual vNM utility functions u1, ..., un, one for each member of society, which represent the individuals’ preference orders R1, . . . , Rn; and the social utility function u which is the average of these n individual utility functions, i.e. u(x) = 1n ∑ ui (x) for all x ∈ S, represents the social preference order R, when R is defined via the observer’s extended preference Ro on the corresponding impartial lotteries.5 How do we find the particular individual utility functions for which this is true? They are implicitly defined by the particular choice of vNM utility function uo to represent the observer’s extended preference ordering. Suppose that y ∈ �(I x S) is an extended lottery in which the observer is individual i for certain. Let x be the corresponding simple lottery. Then set ui (x) = uo (y), i.e. individual i ’s utility for the simple lottery x equals the observer’s utility for the extended lottery y.6 Relative to the individual utility functions u1, ..., un defined this way, the social utility function u is given by the average utilitarian rule. 5 This is a verbal paraphrase of theorem 9 in Weymark (1991). 6 Since the principle of acceptance is satisfied, the function ui defined by this procedure represents individual i ’s preference order. SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 49 To summarize, Harsanyi’s impartial observer theorem tries to derive a utilitarian conclusion from three ingredients. These are: (i) the assumption that all individuals, including the observer, are expected utility maximizers; (ii) the principle of acceptance; and (iii) the ethical postulate that society’s choice should be determined by what the impartial observer would choose from behind the veil. The difference between Harsanyi and Rawls stems chiefly from the latter’s rejection of (i). 3. THE SEN/WEYMARK CRITIQUE OF HARSANYI Though formally straightforward, the philosophical significance of the impartial observer theorem is a matter of ongoing controversy; see Mongin (2001) for a recent assessment. Sen (1986) argued that Harsanyi’s theorem does not in fact establish a utilitarian conclusion, in the ordinary sense of utilitarianism, but is merely a representation theorem for social preferences. This criticism was endorsed and further developed by Weymark (1991). The essence of the Sen/Weymark critique is that there is an irreconcilable tension in Harsanyi’s argument. On the one hand he needs to assume that utility is fully interpersonally comparable, i.e. both utility levels and differences can be compared across individuals. (Difference comparability is needed for utilitarianism to be a well-defined doctrine, and level comparability is needed for the impartial observer to be able to make his judgements of extended preference.) On the other hand he assumes that ‘utility’ means utility in the sense of von Neumann and Morgenstern, i.e. a numerical representation of a preference relation over lotteries. Preferences are primary, on the standard vNM picture, and utility derived. This is inherently problematic. One problem is that the vNM theory does not itself tell us how to make the required interpersonal comparisons; but there is a deeper problem. As Weymark stresses, if utility is merely a representation of preference, there is no particular reason to restrict attention to vNM utility functions (i.e. ones that are linear in the probabilities, or expectational). The vNM theorem tells us that if an individual’s preference relation over lotteries satisfies certain axioms, then it ca n be represented by an expectational utility function, but it can equally well be represented by many other utility functions which are not expectational.7 However it is essential to Harsanyi’s theorem that only vNM utility functions are used to represent preferences; without this, 7 If u is a vNM utility representation of a given preference relation R over lotteries, and f (u) is any increasing transformation of u, affine or not, then f (u) will also represent R. On the orthodox view, the reason for employing vNM utility functions, rather than any other, is simply mathematical convenience; as Arrow (1951) said, their merit is ‘stating the laws of rational behaviour in a particularly convenient way’ (p. 10). 50 SAMIR OKASHA the utilitarian conclusion does not go through. But Harsanyi offers no justification for only considering vNM utility functions; he appears to think, wrongly, that their use is mandated rather than merely permitted by the von Neumann–Morgenstern expected utility theorem. Weymark concludes from this that for Harsanyi’s argument to succeed, it must operate with a non-preference based concept of utility. For example, utility could be construed as some kind of mental or hedonic state, à la classical utilitarianism, whose relationship to preferences would then be an empirical matter. (Indeed Harsanyi at times seems to have such a concept in mind.) If such a notion of utility is granted, and certain assumptions about it are made, then Harsanyi’s argument may be salvageable. The assumptions are that utility is real-valued, cardinally measurable, fully interpersonally comparable, and expectational, i.e. the utility of a lottery is its expected utility. This is the basis for a version of Harsanyi’s theorem proposed by Weymark (1991) (his theorem 10). To avoid confusion Weymark talks about well-being rather than utility, and makes the above assumptions about well-being. As in Harsanyi’s original, there is a set of social alternatives, and a set of lotteries over them. Each individual has a well- being function over the lotteries. The impartial observer has a well-being function over the extended alternatives, and the extended lotteries. The ‘principle of welfare identity’ says that the observer’s well-being from an extended alternative in which she is person i for certain equals person i ’s well-being in that alternative; this is the analogue of Harsanyi’s principle of acceptance. Society’s well-being, in any simple lottery, is postulated to equal the observer’s well-being in the corresponding impartial extended lottery, analogously to Harsanyi’s original. Given all this, it is easily shown that society’s well-being, in any social alternative, is the average well- being of the individuals in society; so average utilitarianism is true.8 Weymark’s version of the theorem could be simplified, in that it is not actually necessary to assume that individuals’ well-being functions are defined on lotteries, as well as alternatives. (The same is not true of the observer’s well-being function, obviously.) Even if individual well- being is only defined for the social alternatives themselves, a utilitarian conclusion can still be derived.9 8 The utilitarian conclusion follows very simply when utility or well-being is taken as primitive in the impartial observer model. The fact that the observer’s well-being function is expectational, and satisfies the principle of welfare identity, directly implies that the well-being the observer derives from an impartial extended lottery equals the average individual well-being in the corresponding simple lottery. As Mongin (2001) observes, this is less a ‘theorem’ than a routine application of decision theory. 9 A utilitarian conclusion for the social alternatives themselves, that is. To derive a utilitarian conclusion for the lotteries, as well as the alternatives, requires that the individual well-being functions are defined over lotteries (and are expectational). SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 51 Weymark argues that his version of the impartial observer theorem, though free from the conceptual problems that plague Harsanyi’s original, rests on assumptions that are hard to defend. That well-being is cardinal and interpersonally comparable is controversial enough; but it is the assumption that it is expectational that Weymark finds especially problematic. Why should it be true that the well-being the observer gets from a lottery equals the expected well-being derived from the prizes, i.e. social alternatives? In the context of Harsanyi’s original argument this question does not arise, since vNM utility is by definition expectational; but the question is pressing for any non-preference based concept of utility, or well-being.10 In section 5, I offer a biological interpretation of Harsanyi’s impartial observer theorem, using Weymark’s version. It turns out that in a biological setting, the assumptions about well-being or utility that are needed to make the theorem work are readily defensible. 4. BIOLOGICAL PRELIMINARIES To explain how the veil-of-ignorance concept applies to Mendelian genetics, some biological preliminaries are necessary. The vast majority of sexually reproducing species are diploid, meaning that their cells contain two copies of each chromosome, one paternal and one maternal. The two copies need not be genetically identical; each gene has a number of variants, or alleles11, and the allele at a given slot on the paternal chromosome may differ from the one at the corresponding slot on the maternal chromosome. These chromosomal slots are known as loci. If the two alleles at a given locus are the same, the organism is homozygotic at that locus, otherwise it is heterozygotic. The genotype of an organism is a specification of the alleles it contains at one or more loci. So if A and a are two alleles at a given locus, there are three possible genotypes at that locus: the homozygotes AA and aa, and the heterozygote Aa. In order to reproduce sexually, diploid organisms produce gametes (e.g. sperm or egg cells) which are haploid, i.e. contain only one of each chromosome pair. Two haploid gametes then fuse to form a diploid zygote, and a new organism is born. Gametes are formed via a cell- division process called meiosis, which reduces the chromosome number by half. So only one member of each chromosome pair ends up in a given gamete. Meiosis proceeds in a number of distinct stages; see Figure 1. Firstly, every chromosome is copied, resulting in a cell that contains two copies 10 Risse (2002) and Broome (1991) have tried to argue, in a related context, that well-being is ‘inherently’ expectational, but it is debatable whether their argument succeeds. 11 In some contexts, biologists use the terms ‘gene’ and ‘allele’ more-or-less interchangeably, a practice that is followed here where there is no risk of confusion. 52 SAMIR OKASHA FIGURE 1. Crossing Over of each maternal and each paternal chromosome. (In Figure 1, which depicts meiosis for a single chromosome pair, this doubling has happened before the diagram starts.) Next a process called ‘crossing over’ occurs, in which the paternal and maternal chromosomes can swap portions of their genetic material. The paternal and maternal chromosomes in each pair line up alongside each other, break at the same point, exchange parts and then join up. Finally, two rounds of cell division take place, resulting in four haploid gametes each containing one of every chromosome pair. So from a single diploid cell, four haploid gametes are ultimately produced. SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 53 Crossing-over means that a chromosome in a gamete will usually not be a perfect copy of either member of the chromosome pair from which it came. This results in a ‘shuffling’ of genes between parent and daughter chromosomes. If two genes are located at distant ends of a parental chromosome, they may easily be broken up by crossing-over, so will not tend to be transmitted together. But if the genes are located close together on a chromosome, they are likely to be transmitted to a gamete as a unit. Such genes, and the loci they occupy, are said to be ‘linked’. Most of the time meiosis is fair, i.e. each member of a chromosome pair has an equal chance of making it into any gamete. So an Aa heterozyote will produce A gametes and a gametes in equal proportion (on average). This is Mendel’s law of segregation, or Mendel’s first law. But the law has exceptions. In many species, rogue genes have been discovered which can cheat Mendel’s law and get into more than their fair share of gametes. This is known as ‘meiotic drive’ or ‘segregation distortion’; the genes in question are called segregation-distorters. If the A allele is a segregation-distorter, then more than half of the gametes produced by the Aa heretozygote will be A gametes. Segregation-distorters only have evolutionary consequences when they are in heterozygotes. Suppose there are two alleles A and a at a locus, and the A allele is able to distort segregation in its favour. This means that the ratio of A to a gametes produced by an Aa heterozygote will exceed 1:1, so the A allele will increase in frequency in the gene pool, ceteris paribus. By contrast an AA homozygote only produces A gametes anyway (mutation aside), so it makes no difference whether segregation is Mendelian or not. A segregation-distorter allele enjoys an inherent selective advantage over non-distorters at the same locus. If the A allele distorts segregation in its favour and there are no counterbalancing selective pressures, it will sweep to fixation in the population. It is not known how often this has happened in natural populations, since it is very difficult to detect. In other cases the distorter allele does not become fixed, but is maintained in the population at an intermediate frequency. This happens when the distorter allele has negative effects on organismic fitness, which offsets its segregation advantage. Thus suppose that the A allele distorts segregation in its favour, but that organisms with the AA genotype suffer a fitness disadvantage compared to Aa and a a organisms. Then for a range of parameter values, the population will evolve to a stable equilibrium in which both alleles are present. When this happens, segregation-distorters can be detected empirically. Segregation distortion involves a special sort of natural selection, known as ‘intra-genomic selection’, which takes place between the alleles within a single organism. In the example above, the A allele is selected over the a allele within Aa heterozygotes, since it gets into more than 54 SAMIR OKASHA half the gametes. But this is countered by selection at a higher level, i.e. selection between organisms. AA organisms are less fit than Aa and a a , so their total production of gametes is lower. Thus there are two opposing selective forces at work, operating at different hierarchical levels. In effect, the A allele in a heterozygote profits at the expense of its host organism – it reduces the total number of gametes the organism produces, but takes a disproportionate share of the pie for itself. The above examples assume that a segregation-distorter is a gene at a single locus. This is in principle possible, but empirically most cases of segregation-distortion involve two genes at tightly linked loci, working in concert (cf. Lyttle (1991)). In the fruit fly Drosophila melanogaster, an allele at the ‘toxin’ locus, denoted Sd, produces a product that inactivates any gametes that do not produce antidote. Whether a gamete produces antidote depends on which allele it has at a second locus; the Rs p+ allele does not produce antidote, while the Rs p allele does. Since the two loci are tightly linked, the Sd/Rs p pair constitutes an effective system for meiotic drive. An Sd/Rs p chromosome will produce toxin that destroys gametes not containing the Rs p allele; due to linkage, such gametes will not contain the Sd allele either. So both the Sd and Rs p alleles will achieve greater than fifty percent representation in the successful gametes of their host organism, by destroying gametes containing rival alleles. 5. FAIR MENDELIAN SEGREGATION: EVOLUTIONARY CONSIDERATIONS Segregation distortion is the exception not the rule; most of the time meiosis is fair. Since fair meiosis involves complex molecular machinery, it seems probable that it is an evolved feature of organisms, so has a Darwinian explanation. This prompts the question: what is the benefit of fair meiosis? Why would natural selection have favoured it? This question is deceptively simple; we need to ask: ‘benefit for whom?’ An individual gene clearly benefits if it can distort segregation in its favour – that way it will bequeath more copies to subsequent generations. Imagine again two alleles at a locus, A and a . Clearly, the A allele would prefer a segregation scheme of 4:1 in favour of A, for example, over fair 1:1 segregation. Conversely, allele a would prefer segregation to be biased in its favour. So neither allele at the locus in question benefits from fair meiosis per se; both would do better if segregation were biased to their advantage. What about the organism as a whole? Does the whole organism benefit from fair meiosis? The answer is ‘yes’, in many circumstances. The reason is that a distorter will often have harmful effects on its host organism. Ordinarily a gene which harms its host organism will harm its own reproductive interests, so will be selected against. But this is not true SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 55 if the gene is a segregation-distorter. A distorter gene may spread by natural selection even if it harms its host organism – which implies a conflict of interest between gene and organism. To see this point, suppose allele a is initially fixed at a locus, and then allele A arises by mutation. Allele A has two effects: it distorts segregation in its favour, and it reduces the fitness of its host organism. For concreteness, suppose the fitness scheme is: w(a a ) = 10, w( Aa ) = 9, w( AA) = 8, where these are the numbers of successful gametes produced by an organism of the genotype in question. Suppose that of the 9 successful gametes produced by an Aa heterozygote, 6 are A and 3 are a , on average. Thus the Aa genotype produces fewer successful gametes than the a a genotype, but a disproportionate number of these are A. So despite imposing a fitness cost on its host organism, the mutant A allele is favoured by natural selection when rare. The population evolves to a stable equilibrium where both alleles are present.12 This illustrates how segregation distortion can lead to a conflict of interest between a gene and its host organism. Of course a distorter might not harm its host organism; it could be phenotypically neutral, or even beneficial. In these cases the distorter will quickly sweep to fixation in the population, since its segregation advantage is not offset by any negative effects on organismic fitness. But when distorters are maintained in the population in a polymorphic equilibrium, as empirically is often found, then they must be harming their hosts. The conflict of interest between a distorter allele and its host organism can equally be thought of as a conflict between the distorter allele and the genes at other (unlinked13) loci within the organism. If allele A distorts segregation at its own locus, a gene at an unlinked locus is not directly affected. However if the A allele also reduces organismic fitness, as many distorters do, then genes at other loci suffer. They pay the cost of the reduction in fitness but gain no compensating segregation advantage, so end up bequeathing fewer copies to the next generation. Genes at other loci thus benefit if they can somehow prevent the A allele from distorting segregation, so will be under selection to do so. This is the basis for the explanation of fair meiosis developed by Eshel (1985), who showed that ‘modifier’ genes at unlinked loci, that have the effect of restoring fair meiosis at the locus undergoing drive, will be 12 Presuming mating is random, equilibrium is attained when the population-wide frequencies of the A and a alleles are approximately 0.45 and 0.55 respectively. With these frequencies, the marginal fitnesses of the A and a alleles are equal so there is no further evolutionary change. 13 The qualification ‘unlinked’ is crucial. At any linked locus, there will be selection for genes which increase allele A’s segregation distortion, as they will become preferentially associated with A and will thus gain from the distortion. 56 SAMIR OKASHA favoured by natural selection.14 So a tug-of-war will ensue: the A allele will try to bias segregation in its favour, but alleles at all other unlinked loci in the genome will try to restore meiotic fairness. Since there are many such loci in the genome, they are likely to win the war. The predicted outcome is thus a restoration of fair meiosis. Thus there is a putative evolutionary explanation for why fair meiosis is the rule. This explanation is widely accepted among biologists. The underlying idea in Eshel’s explanation was vividly expressed by Leigh (1977), who spoke of a ‘parliament of genes’ trying to prevent ‘cabals of a few conspiring for their own “selfish profit” at the expense of the “commonwealth”’ (p. 4543). Leigh’s point was that the bulk of the genes in the genome gain nothing from one of their member distorting segregation at its own locus, and potentially stand to lose a lot, given that distorters often reduce organismic fitness; therefore the genes have a collective interest in enforcing fair meiotic division. A different (though equivalent) perspective is that fair meiosis acts to equalize the interests of all the genes in the organism. If meiosis is constrained to be fair, then the only way a gene can benefit itself is to boost the fitness (total gametic output) of the whole organism, which benefits all other genes too. By contrast, if a gene can break Mendel’s law then it can benefit despite harming its host organism, as we have seen. So fair meiosis acts as a unifying force, preventing internal conflict and leading the organism to behave as a single, cohesive entity. The fact of meiotic drive, and the evolutionary pressures it gives rise to, remind us that the unity of the individual organism cannot be taken for granted. We naturally regard an individual organism as a cohesive entity, with a unity of purpose, i.e. all its parts work for the common good. This is often justified, but organismic unity is an evolutionary achievement, and is possible only to the extent that meiotic drive (and other forms of intra-genomic conflict) are kept in check (cf. Ridley 2000). An organism in a sexual species is a temporary coalition of genes whose interests do not necessarily overlap, as they are not all transmitted together. Fair meiosis works to align the genes’ interests, ensuring they work for the common good. If the parliament of genes could not enforce Mendel’s law, harmful genes could spread and organismic integrity would be undermined. How exactly is fair meiosis enforced? The biochemical details are not well understood, but Haig and Grafen (1991) suggest one possible mechanism. Recall that empirically, most cases of segregation distortion involve a pair of genes at tightly linked loci acting in concert – such as the toxin/antidote Sd/Rs p system in Drosophila described above. Given this fact, any way of ‘unlinking’ the two loci, e.g. by increasing the rate 14 A modifier gene is one which affects the phenotypic expression of some other gene in an organism. SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 57 of crossing over, will tend to restore fair meiosis. The Sd/Rsp system relies critically on the fact that a gamete containing the Sd allele is also likely to contain Rs p, and thus to be immune from the toxin. But if the linkage is broken, then the Sd’s segregation advantage disappears – for then, the toxin it produces will be as likely to kill a gamete containing a copy of itself as of its rival allele. Destroying linkage thus prevents genes like Sd and Rs p from forming a selfish cabal at the expense of the rest of the genome. Thus one way to prevent meiotic drive, Haig and Grafen argue, is to destroy linkage, i.e. to force the genes in question to assort independently. Genes on other chromosomes that can achieve this result will be selectively favoured. More could be said about the evolution of fair meiosis, but the essential points have been made.15 In a sexual species, there is a potential conflict between any individual gene and its host organism. A gene that distorts segregation in its favour can spread despite reducing its host’s fitness. This harms genes at unlinked loci, who are thus under selection to restore fair meiosis if they can. One effect of fair meiosis is to equalize the interests of all the genes, thus ensuring they work for the common good. One way of achieving this is to destroy linkage, given that segregation distortion typically involves linked genes working in concert. 6. MENDELIAN SEGREGATION AND THE VEIL OF IGNORANCE Finally we are in a position to relate Mendelian genetics to the veil of ignorance. The basis for the analogy is fairly clear. When meiosis is fair, then any given allele does not ‘know’ whether it will be transmitted to a particular gamete – the chance that it will is fifty percent. So the allele is behind a veil of ignorance with regard to its presence in each gamete, which ensures that its interests are aligned with its host organism, i.e. it will seek to maximize the organism’s gametic output. Furthermore, an allele that is transmitted to a gamete does not ‘know’ which other alleles (at unlinked loci) are also in the gamete. By forcing genes behind a veil of ignorance, fair meiosis thus randomizes away the information that alleles would need to profit at the expense of their host, or to form selfish cabals with genes at other loci. This analogy may seem limited since it says nothing about choice from behind the veil, a notion central to the Harsanyi/Rawls argument. But in fact the notion of choice (or preference) is implicit in talk of a gene’s ‘interests’ – which is itself short-hand for talking about what natural selection would favour. This permits the analogy to be elaborated as follows. The alleles in an organism correspond to the individuals 15 Crow (1991) is a useful review of work on this topic up to 1991; Úbeda and Haig (2005) discuss some recent developments. 58 SAMIR OKASHA in society, in Harsanyi’s model. The social alternatives are alternative ‘gametic outputs’, i.e. specifications of how many successful gametes the organism leaves and which alleles they contain. Each allele has a ‘preference order’ over the alternatives, determined by how many copies of itself are left in each alternative. The organism itself also has a preference order over the alternatives (analogous to the social preference in Harsanyi’s model), determined by the total gametic output, or organismic fitness, in each alternative. To illustrate, consider a single locus with two alleles A and a . Suppose that for an Aa heterozygote, there are four biologically possible output levels – leaving 0, 1, 2 or 3 successful gametes. All segregation schemes are considered possible. Thus the set of social alternatives S is: {0, A, a , AA, Aa , a A, a a , AAA, AAa , Aa A, Aa a , a AA, a Aa , a a A, a a a } where ‘ AAa ’, for example, means that the organism leaves three successful gametes, the first two of which contain A and the third a . (Note that the order in which the gametes are produced matters, so AAa and Aa A are different alternatives.) The A allele prefers alternative x to y iff it leaves more copies in x than y; thus the A allele prefers alternative AAa to a a a , for example. The a allele has the converse preference. The organism itself is indifferent between AAa and a a a , since its fitness is the same in each (see Table 1). All alleles at unlinked loci (not modelled here) have the same preference order as the organism; they have no interest per se in whether meiosis is fair at the A/a locus.16 Note also that the A allele prefers Aa to a a a , despite total gametic output being greater in the latter. This illustrates the fact that the A allele, if permitted to choose, could easily harm the interests of the whole organism. It bears emphasis that talk of ‘interests’, ‘choice’ and ‘preference’ in this and other evolutionary contexts is fully legitimate, as it can be cashed out precisely and non-metaphorically in terms of natural selection. In saying that the A allele ‘prefers’ alternative Aa to a a a , we mean that if the A allele could exert causal influence over which of these alternatives obtained, natural selection would lead it to bring about the Aa alternative. Similarly, in saying that the organism is indifferent between AAa and a a a we mean that selection would have no tendency to favour an organism producing one rather than the other of these gametic outputs. A related point is that the ‘preference order’ of each allele (and the organism) is not primitive, but rather derives from its fitness in each alternative. It is because allele A has a fitness of two in alternative AAa and a fitness 16 Note that this does not conflict with the standard argument, expounded in section 5, that selection at the organism level (or at unlinked loci) will tend to restore fair meiosis. That argument presumes that the segregation-distorter alleles will have a negative effect on organismic fitness, but this is not being assumed at this juncture. SO C IA L JU ST IC E, G EN O M IC JU ST IC E A N D T H E V EIL O F IG N O R A N C E 5 9 Rank A’s preference a’s preference Organism’s preference 1. AAA a a a AAA, AAa , Aa A, a AA, Aa a , a Aa , a a A, a a a 2. AA, AAa , Aa A, a AA a a , Aa a , a Aa , a a A AA, Aa , a A, a a 3. A, Aa , a A, Aa a , a Aa , a a A a , Aa , a A, AAa , Aa A, a AA A, a 4. a a a , a a , a , 0 AAA, AA, A, 0 0 TABLE 1. Preference orders over gametic outputs 60 SAMIR OKASHA of zero in alternative a a a that it prefers the former to the latter. So the preference ordering is induced by the fitness function. This is the converse of the usual situation in decision theory, where preferences are primitive and their numerical representations derived. The significance of this will become clear. Since the A and a alleles have different preference orders over the social alternatives, and the organism itself has a different preference order again, there is considerable scope for internal conflict – selection will tend to disrupt the integrity of the organism. It is here that fair meiosis comes into play; as we have seen, it has the effect of aligning the interests of all parties. To represent this in the Harsanyi framework, we first need to introduce lotteries over the set S, i.e. probability distributions over possible gametic outputs. This permits two types of randomness or uncertainty to be modelled: about how many successful gametes the organism produces, and about which genes they contain. The former arises because survival and reproduction are stochastic – two organisms of identical genotype won’t necessarily enjoy the same reproductive success. Though important in many evolutionary models, this factor is not especially relevant here. The latter arises because of the meiotic process, and is our prime concern. Suppose that meiosis is fair, and that the organism definitely leaves two successful gametes (so there is no uncertainty of the first type.) This picks out a unique lottery over S, which has P ( AA) = P ( Aa ) = P (a A) = P (a a ) = 14 and zero probability for every other alternative. This is because with fair meiosis, any gamete has an equal chance of receiving the A or a allele, with independence across gametes. Clearly, any given alternative to fair meiosis, e.g. 3:1 in favour of A, also picks out a unique lottery, once the total number of successful gametes has been specified. What about preference over lotteries? How do we make sense of the idea that allele A prefers one lottery to another? The natural way is to assume that an allele evaluates lotteries by the criterion of expected fitness, and so would prefer, i.e. be selected to bring about, the lottery in which its expected fitness is highest; similarly for the organism. Thus allele A’s evaluation of the lottery described above, in which two successful gametes are produced and meiosis is fair, equals 1 4 (2) + 1 4 (1) + 1 4 (1) + 1 4 (0) = 1. Similarly, the organism’s evaluation of this lottery equals 1 4 (2) + 1 4 (2) + 1 4 (2) + 1 4 (2) = 2. Modulo this assumption, it is straightforward to derive a preference order for each allele, and for the organism, over the entire lottery set. SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 61 Importantly, there is a real biological rationale for assuming that lotteries are evaluated by expected fitness, namely that this is the evaluation that natural selection will make. When the fitness of an organism (or genotype) is a random quantity, it is well-known that natural selection will select for maximization of expected fitness, given two conditions. These are: (i) that the population is very large, and (ii) the randomness is independent across organisms. Condition (i) is standard in evolutionary theory. To understand condition (ii), suppose an organism of a given genotype leaves 1 or 3 offspring with equi-probability. If each organism of the genotype faces an independent 50:50 gamble on 1 or 3 offspring, e.g. a separate coin is flipped for each, then condition (ii) is satisfied. But if the risk is correlated, e.g. a single coin flip decides whether a ll organisms of the genotype leave 1 or a ll leave 3, then condition (ii) is violated.17 In some contexts, assuming independence across organisms (or ‘uncorrelated risk’) would be unjustified. For example, if an organism’s fitness varies randomly because of the weather, the independence assumption would clearly be wrong, since the weather affects many organisms. But in the present context, where our interest is the random variation in an organism’s gametic output due to meiosis, the assumption is fully justified. Suppose again that an organism of genotype Aa definitely leaves two successful gametes and that meiosis is fair, so P ( AA) = P ( Aa ) = P (a A) = P (a a ) = 14 . Clearly, this probability distribution is independent across all Aa organisms, given how meiosis works. Knowing that one Aa organism produced AA, for example, tells us nothing about the output of any other. More precisely, if we consider lotteries in which total gametic output is certain, so the uncertainty pertains only to the distribution of the output, then the independence assumption is justified. Expected fitness is thus the right criterion by which an allele, or an organism, should evaluate such lotteries. We can now use our Harsanyi-style framework to give precise expression to the idea that fair meiosis equalizes the interests of the A and a alleles, thus preventing conflict. The two alleles have different preference orders over the set S, and thus also over the lottery set �S, as we have seen. But consider the subset of lotteries that are meiotically fair, i.e. which are compatible with each allele having an equal chance of entering any gamete. The A and a alleles will evaluate the meiotically fair lotteries identically, and thus have identical preference orderings over them. To see this, consider again the lottery in which meiosis is fair, and the organism definitely leaves two successful gametes, i.e. < P ( AA) = P ( Aa ) = P (a A) = P (a a ) = 1 4 >. The A allele’s evaluation of this is 1 4 (2) + 14 (1) + 14 (1) + 14 (0) = 1, which 17 These two extremes – independence across gametes and perfect correlation – are the opposite ends of a spectrum. Intermediate degrees of correlation are also possible. 62 SAMIR OKASHA is the same as the a allele’s evaluation. The same will be true of any meiotically fair lottery. Note also that the A and a allele’s preference ordering over the subset of meiotically fair lotteries will coincide with that of the organism – so lotteries will be ranked according to average (or total) gametic output, i.e. in a ‘utilitarian’ way. To illustrate, compare the meiotically fair lotteries in which the organism definitely leaves one and two successful gametes respectively, i.e. < P ( A) = P (a ) = 12 > and < P ( AA) = P ( Aa ) = P (a A) = P (a a ) = 14 >. The organism obviously prefers the latter, as its fitness is twice as high as in the former. Each allele’s expected fitness is also twice as high in the latter lottery, so its interests are aligned perfectly with the organism’s. Therefore if meiosis is constrained to be fair, the only way that an allele can boost its expected representation in the next generation is by boosting the organism’s total gametic output. This shows that two standard pieces of biological wisdom about fair meiosis are neatly captured by casting the issue in a Harsanyi-style framework. That fair meiosis aligns the interests of competing alleles, with each other and with the host organism, is reflected in the fact that their preference orders coincide over the subset of lotteries that are meiotically fair. The device of fair meiosis, therefore, is the organism’s solution to the social contract problem. This is interesting, and vindicates the idea of treating the alleles in an organism as individuals in a society, with potentially divergent interests. But it does not quite forge a logical link with Harsanyi’s own argument. Recall that Harsanyi uses the device of a hypothetical impartial observer to construct a social ordering of a ll lotteries (and thus alternatives) – which turns out to be the utilitarian ordering. We have represented fair meiosis, however, as effecting a restriction on the set of lotteries to the ‘meiotically fair’ ones; on this subset, each allele’s ordering is the utilitarian ordering. There is a similarity here to Harsanyi’s argument, but not a exact parallel. Indicative of this is that the notion of an extended lottery, central to Harsanyi’s argument, played no role in our representation of fair meiosis. Is it possible to forge a more direct link? It turns out that it is. 7. AN EXPLICIT LINK BETWEEN FAIR MEIOSIS AND THE IMPARTIAL OBSERVER THEOREM Harsanyi introduces extended lotteries in order to model the notion of impartiality, or justice. He needs to do this since his social alternatives are purely abstract. But in our biological application the alternatives have internal structure – an alternative specifies how many resources (gametes) go to each individual. This permits the notion of impartiality SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 63 to be modelled more simply, without the need for extended lotteries, via symmetry considerations. Call a lottery over gametic outputs symmetric if it is invariant under permutation of alleles. Thus for example, the lottery < P ( AAA) = P (a a a ) = 12 > is symmetric, since if every ‘A’ is swapped to an ‘ a ’ we end up with exactly the same lottery. Note that if a lottery is symmetric, the expected number of A and a alleles it yields is the same, so the two alleles will evaluate it identically. From an individual allele’s point of view, symmetry has an obvious epistemic interpretation. Symmetric lotteries are ones in which the allele is deprived of knowledge about its own identity. For the A allele, the lottery < P ( AAA) = P (a a a ) = 12 > corresponds to certain knowledge that its host organism will produce three identical successful gametes, but ignorance about who it will be – the lucky or the unlucky one. This interpretation suggests a natural link with Harsanyi’s notion of an impartial extended lottery. Note that all meiotically fair lotteries are symmetric though not vice- versa. Meiotically fair lotteries are ones in which each allele has a given chance of entering any gamete, with independence across gametes. So the lottery < P ( AAA) = P (a a a ) = 12 > is not meiotically fair, since although each allele has an equal chance of being found in (for example) the second successful gamete, independence across gametes is not satisfied – the allele found in the second successful gamete will definitely be found in the first and third. So in meiotically fair lotteries, each allele is deprived of knowledge of its own identity, and also of conditional knowledge of its own identity given any information about the organism’s gametic output. So we have: meiotically fair lotteries ⊂ symmetric lotteries ⊂ all lotteries. To each alternative in S, there is exactly one meiotically fair lottery which gives that alternative non-zero probability, and which definitely yields the same total number of gametes as that alternative. Call this the meiotically fair lottery that corresponds to the alternative. Thus to the alternative Aa , for example, there corresponds the meiotically fair lottery < P ( AA) = P ( Aa ) = P (a A) = P (a a ) = 14 >; note that this lottery also corresponds to alternatives AA, a A and a a . More generally, the set S can be partitioned into equivalence classes of alternatives with the same corresponding meiotically fair lotteries. These can be regarded as ‘information sets’, i.e. alternatives which neither allele can tell apart, under the supposition that meiosis will be fair. We can then derive an evaluation, and thus an ordering, of the alternatives in S for a given allele ‘from behind the meiotic veil’. Ordinarily, the A allele evaluates an alternative by how many copies it leaves in that alternative. But with fair meiosis in place, the allele can’t discriminate between alternatives in the same information set; and thus is forced to substitute their evaluation of the corresponding meiotically 64 SAMIR OKASHA Alterna�ves S Lo�eries S Meio�cally fair lo�eries Extended alterna�ves I x S Extended lo�eries � � (I x S) Impar�al extended lo�eries FIGURE 2. Two ways of representing impartiality fair lottery. Thus the A allele’s ‘veiled’ evaluation of alternative Aa , for example, equals their evaluation of the lottery < P ( AA) = P ( Aa ) = P (a A) = P (a a ) = 14 >, which equals 1; allele a ’s ‘veiled’ evaluation is the same. This evaluation then induces a veiled ordering of the alternatives, from best to worst. Now recall Harsanyi’s approach. To each alternative Harsanyi associates a unique impartial extended lottery. Let us apply this to our genetic example, where the alternatives are gametic outputs. Thus for example, Harsanyi’s procedure associates to alternative Aa the lottery < P ( Aa , A) = P ( Aa , a ) = 12 >; this can be read ‘alternative Aa for certain, with equal probability of being person A or person a ’. Harsanyi then derives a social ordering of the alternatives, by postulating that it equals the observer’s ordering of the corresponding impartial extended lotteries. An explicit link between the two ways of modelling impartiality is now possible. For each alternative in S, there corresponds to it a unique impartial extended lottery, and a unique meiotically fair lottery (Figure 2). We can then order the alternatives in S two ways: by how the observer would order the corresponding impartial extended lotteries, or by how one of the alleles would order the corresponding meiotically fair lotteries. But these two give exactly the same result – the average utilitarian ordering. To see this, compare the two alternatives Aa and a a . The impartial observer, to evaluate these, would compare the lotteries < P ( Aa , A) = P ( Aa , a ) = 12 SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 65 >, and < P (a a , A) = P (a a , a ) = 12 >. Assuming the principle of welfare identity, and that the observer’s valuation function is expectational, the former is evaluated as 12 (1) + 12 (1) = 1, the latter as 12 (0) + 12 (2) = 1. So the observer deems the alternatives equally good. Now consider how the A allele (or the a allele) would evaluate Aa and a a from behind the meiotic veil. Since both alternatives are in the same information set, the A allele would evaluate them both as 14 (2) + 14 (1) + 14 (1) + 14 (0) = 1. So both ways of ordering yield the result that Aa and a a are as good as each other. This result generalizes easily, yielding: Proposition 1: Let S be the set of alternative gametic outputs. Let R be the ordering of S given by the impartial observer’s ordering of the corresponding impartial alternative lotteries (assuming the principle of welfare identity, and that the observer’s valuation function is expectational). Let R′ be the ordering of S given by any allele’s ordering of the corresponding meiotically fair lottery. Then, R = R′. Proof: see Appendix Proposition 1 shows that the link between Harsanyi’s way of modelling social justice, via the device of an impartial observer, and the natural way of modelling genomic justice, via a restriction on the set of lotteries to the meiotically fair ones, is actually quite intimate. In reality, the two amount to the same thing: they capture the notion of impartiality in different, but equivalent, ways. The main difference is the greater generality of Harsanyi’s approach, since it does not require that the social alternatives have structure. A second, minor difference is that Harsanyi’s way of deriving a social ordering of the alternatives derives from a more general ordering of the lotteries; while the ‘meiotically fair’ lottery approach yields a direct ordering of the alternatives. But this difference is more real than apparent. On the meiotically fair approach, it would be straightforward to extend the ‘social’ ordering to the full lottery set �S, if we wished, simply by stipulating that a lottery’s valuation is its expected valuation. Importantly, proposition 1 could be strengthened by considering symmetric lotteries rather than meiotically fair lotteries. To each alternative in S, there corresponds a set of symmetric lotteries each of which definitely yields the same total number of gametes as that alternative, but only one of which is meiotically fair. However, an allele will evaluate all of these symmetric lotteries identically, by the average utilitarian rule. Therefore, proposition 1 would be true if for ‘meiotically fair’ lottery we substituted any member of the class of symmetric lotteries that correspond to the alternative in question. That is, restricting the permissible lotteries to the meiotically fair ones is a way, but not the 66 SAMIR OKASHA only way, of forcing alleles to substitute the organism’s interest for their own. This last observation raises an important question. We have been assuming, with biological orthodoxy, that the function of fair meiosis is to unify the interests of the genes in an organism. But fair meiosis, which amounts to flipping a separate fair coin for each gamete that is produced, is not the only way to achieve this task. Instead, an Aa heterozygote could flip one coin for all the gametes to be produced, i.e. they all get allele A or all get allele a , with equal probability. If two successful gametes are definitely produced, the resulting lottery is < P ( AA) = P (a a ) = 12 > – which is symmetric though not meiotically fair. A veil of ignorance of this type would also lead alleles to evaluate lotteries by average gametic output. Why did evolution not solve the problem of conflicting interests this way? I do not know the answer to this question. It may be that using a separate coin flip for each gamete is the simplest way to implement symmetry, or there may be an underlying evolutionary reason why the allocation of genes to gametes should be independent across gametes, i.e. some adaptive advantage to this independence. Whatever the answer, this question highlights the fact that not all aspects of diploid genetics can be accounted for by the parallel between Harsanyi’s veil of ignorance and its Mendelian counterpart. This is not really surprising; if anything it is surprising that the parallel extends as far as it does. What exactly is the upshot of proposition 1? It shows, in a precise manner, that the way fair meiosis leads alleles to align their interest with the whole organism is identical to the way that the veil of ignorance leads Harsanyi’s impartial observer to align her interests with those of society as a whole – where the latter are defined by the average utilitarian rule. Of course the veil of ignorance is a mere thought experiment for Harsanyi and Rawls, so it is remarkable that the underlying principle behind it – that randomization can serve to align the interests of competing agents – finds an embodiment in real biological systems. Note also that the biological instantiation of the principle corresponds better to Harsanyi’s than to Rawls’s version of the argument, in that the former’s utilitarian conclusion clearly holds in the biological case. From behind the meiotic veil, an allele will use the average utilitarian rule to evaluate alternatives, given standard biological assumptions. In a sense, our biological version of the impartial observer theorem is actually superior to Harsanyi’s original. Recall the Sen/Weymark challenge to Harsanyi: to justify properly his assumption that utility (well-being) is both expectational and inter-personally comparable. This challenge is straightforward to meet in the biological case, where utility is replaced by fitness, and the genes in the organism are the individuals in society. Fitness is trivially (fully) comparable across genes (and SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 67 organisms); indeed the whole point of the fitness concept is to permit comparisons between biological units (genes, genotypes and organisms). A gene’s fitness, as understood here, is simply the number of copies left in the next generation, and an organism’s fitness means its total gametic contribution to the next generation. So inter-personal comparability is unproblematic in the biological case. Moreover, the assumption that the valuation function is expectational, which is crucial to Harsanyi’s theorem, has a real biological rationale, as noted earlier. For when risk is uncorrelated, the ‘right’ way for a gene (or an organism) to evaluate a lottery is to use the expected value of that lottery – in that this is the evaluation that matters to natural selection. With uncorrelated risk, a gene which codes for lottery L 1 will be selected over one which codes for L 2 if and only if the expected number of copies it leaves in L 1 is greater than in L 2. So the ‘expectational’ nature of the valuation function, for which Harsanyi offered no good argument, admits of a genuine rationale in our biological application of the theorem. There is a certain irony in this. At first blush, the idea of applying Harsanyi’s theorem to Mendelian genetics may seem implausible, a rather strained analogy. But closer examination reveals that the connection is quite intimate – the principle that Harsanyi discovered really is instantiated in genetic systems. Moreover in the genetic case, the Sen/Weymark criticism cuts no ice. Sen and Weymark were no doubt right that Harsanyi’s theorem does not amount to a ‘proof’ of classical utilitarianism, but Harsanyi’s underlying point – that the veil of ignorance leads to a utilitarian evaluation rule given certain assumptions – was of course correct. The problem was that the assumptions in question were ones that Harsanyi could not justify. But in the biological case the corresponding assumptions can be justified, and the analogue of utilitarianism – that organisms, and their constituent genes, should try to maximize total gametic output – actually holds true. 8. COMPARISON WITH RIDLEY’S ANALYSIS In his book Mendel’s Demon, the biologist Mark Ridley (2000) provides an extended discussion of how the veil-of-ignorance concept applies to ge- netics. My analysis differs from Ridley’s in two main ways. Firstly, Ridley focuses exclusively on Rawls’s rather than Harsanyi’s version of the veil- of-ignorance argument. However Harsanyi’s version is more relevant for the parallel with genetics, both because it is formally elaborated, which allows the parallel to be made precise, and because his decision-theoretic assumptions make good sense in a biological context. Indicative of this is that Harsanyi’s utilitarian conclusion holds true in biological systems with fair meiosis, while Rawls’s maximin conclusion does not. 68 SAMIR OKASHA Secondly, Ridley’s view of how the veil-of-ignorance concept applies to genetics is different from our own. Recall from section 4 that two sorts of randomization occur in genetics. Firstly, one of each chromosome pair is allocated at random to a gamete, when meiosis is fair. Secondly, crossing over breaks up linkage, which means that whether an allele at one chromosomal locus gets in to a particular gamete is independent of whether an allele at another locus does. As a result, selfish cabals that subvert the group’s interests cannot form. This helps keep meiosis fair, given that empirically, successful distortion of segregation requires genes at two loci to work in concert (as in the Sd/Rs p system in Dr oso phi la mela noga ster ). So the second sort of randomization helps stabilize the first. In our analysis, it is the first sort of randomization that occupies centre-stage, for it is here that the link with the Harsanyi/Rawls argument is strongest. Just as the veil of ignorance leads Harsanyi’s impartial observer to choose the option that maximizes society’s total welfare, so the Mendelian veil of ignorance (i.e. fair meiosis) leads genes to choose the option that maximizes their organism’s total gametic output, thus equalizing their individual interests with that of the collective. However, Ridley’s emphasis is on the second sort of randomization, i.e. the genetic recombination caused by crossing over. It is here that he thinks the analogy with Rawls’s argument works best (p. 200). But this seems questionable. The main effect of recombination is to deprive genes of information about the identity of genes at other loci, which prevents selfish cabals forming, as Ridley emphasizes. This is an important point, but it has no clear counterpart in the Rawls/Harsanyi argument. The latter involves a single individual – the impartial observer – uncertain about which member of society he will become. The uncertainty does not concern the characteristics of other members of society – or at least, any such uncertainty is strictly irrelevant to the decision problem that the impartial observer faces. So the second sort of randomization, at least in so far as its cabal-stopping consequences are what matters, has no parallel in the Harsanyi/Rawls story.18 My disagreement with Ridley over how the veil-of-ignorance concept applies to genetics is related to the difference between proximate and ultimate explanations. Ridley emphasizes that recombination prevents 18 To be fair to Ridley, he also discusses another consequence of crossing over, to which this criticism does not apply. Following Haig and Grafen (1991), he argues that meoisis is designed to prevent the spread of ‘sister killer’ genes, which gain a transmission advantage by causing their host gamete to kill its sister gamete after meiotic cell division. Crossing over frustrates such sister killer genes, as it means that a putative sister killer doesn’t ‘know’ whether a copy of itself will be found in the sister gamete or not, so is just as likely to harm as to help itself. This consequence of crossing over is distinct from its cabal-stopping consequences. Thanks to an anonymous referee for this observation. SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 69 selfish cabals forming, and thus deprives genes of the information they would need to cheat Mendel’s first law. This helps keep meiosis fair, given empirical facts about how systems of segregation-distortion actually work. So the second sort of randomization is part of the proximate mechanism by which fair meiosis is maintained. But this says nothing about why fair meiosis is adaptively advantageous in the first place. The first sort of randomization, by contrast, addresses this ultimate question. By equalizing the chances that each allele at a locus will enter a given gamete, the interests of genes are aligned, with each other and with the whole organism. Selection at the organism level will therefore tend to produce fair meiosis. The contrast between the two types of randomization, therefore, is in part a contrast between a particular mechanism by which fair meiosis is in fact stabilized, and the evolutionary consequences that follow from meiosis being fair, however this fairness is achieved. It makes sense that a biological version of the Harsanyi/Rawls argument should have an ultimate orientation. For the Harsanyi/Rawls argument involves the notion of utility, or welfare, applied to both individuals and whole societies. The biological analogue is the notion of fitness, which also applies to both individual genes and whole organisms. But the notion of fitness is the paradigmatically ultimate notion; questions of fitness concern evolutionary consequences, not proximate mechanisms. Despite these criticisms, Ridley’s treatment is insightful and provided the inspiration for the foregoing analysis. Ridley concludes his discussion by saying that ‘Rawls’s mechanism in a way applies more powerfully to genes than it does to human beings’ (p. 200). If ‘Rawls’ is replaced with ‘Harsanyi’, then I think this conclusion is exactly right. As we have seen, the impartial observer argument as applied to humans is in fact fraught with difficulty. The assumptions that Harsanyi uses in his theorem are difficult to justify in the rational choice context that he was operating in. In the biological context, by contrast, the assumptions are straightforward to justify, and the utilitarian conclusion actually holds true. Individual genes do in fact act to maximize their organism’s gametic output, as a result of the fairness of meiosis, so they behave like utilitarian agents. 9. CONCLUSION This paper has explored a parallel between the veil-of-ignorance concept in social ethics and in evolutionary genetics. I have argued that the parallel is a genuine one that runs deep and has real explanatory power. In particular, there is an intriguing biological analogue of Harsanyi’s impartial observer argument that is free from the difficulties that plague Harsanyi’s original. The principle that Harsanyi discovered is actually instantiated in the genetic systems of sexually reproducing organisms, 70 SAMIR OKASHA and ensures that their constituent genes work for the good of the whole organism. The parallel I have developed derives from the fact that utility and fitness play isomorphic roles in rational choice theory and evolutionary theory respectively. This role-isomorphism has been noted before by many authors, particularly in relation to decision-making in strategic contexts, but has only rarely been applied in relation to social choice.19 However there is no good reason for this, since the basic premise of social choice – the existence of individuals in a society with divergent interests – is directly applicable to many biological systems. Future work will be needed to tell whether this conceptual link can be fruitfully exploited. REFERENCES Arrow, K. 1951. Social Choice and Individual Values. New York: Wiley. Binmore, K. 2006. Natural Justice. Oxford: Oxford University Press. Broome, J. 1991. Weighing Goods. Oxford: Blackwell. Conradt, L. and C. List 2009. Group decisions in humans and animals: a survey. Philosophical Transactions of the Royal Society B 364: 719–742. Crow, J.F. 1991. Why is Mendelian segregation so exact? Bioessays 13: 305–312. Dawkins, R. 1976. The Selfish Gene. Oxford: Oxford University Press. Eshel, I. 1985. Evolutionary genetic stability of Mendelian segregation and the role of free recombination in the chromosomal system. American Naturalist 125: 412–420. Frank, S.A. 2003. Repression of competition and the evolution of cooperation. Evolution 57: 693–705. Godfrey-Smith, P. 2009. Darwinian Populations and Natural Selection. Oxford: Oxford University Press. Haig, D. 1997. The social gene. In Behavioural Ecology, 4th edition, eds. J.R. Krebs and N.B. Davies, 284–304. Oxford: Blackwell. Haig, D. and C.T. Bergstrom 1995. Multiple mating, sperm competition and meiotic drive. Journal of Evolutionary Biology 8: 265–282. Haig, D. and A. Grafen 1991. Genetic scrambling as a defense against meiotic drive. Journal of Theoretical Biology 153: 531–558. Hamilton, W.D. 1964. The genetical evolution of social behaviour, i and ii. Journal of Theoretical Biology 7: 1–52. Harsanyi, J.C. 1953. Cardinal utility in welfare economics and in the theory of risk-taking. Journal of Political Economy 61: 434–435. Harsanyi, J.C. 1955. Cardinal welfare, individualistic ethics, and interpersonal comparisons of utility. Journal of Political Economy 63: 309–321. Leigh, E.G. jr. 1971. Adaptation and Diversity. San Francisco: Freeman Cooper. Leigh, E.G. jr. 1977. How does selection reconcile individual advantage with the good of the group? Proceedings of the National Academy of the Sciences USA 74: 4542–4546. List, C. 2004. Democracy in animal groups: a political science perspective. Trends in Ecology and Evolution 19: 168–9. Lyttle, T.W. 1991. Segregation distorters. Annual Review of Genetics 25: 511–557. 19 Okasha (2009) explores conceptual connections between social choice theory and the theory of multi-level selection, which deals with natural selection in a hierarchical world. Other applications of social choice-theoretic ideas to the biological realm include Conradt and List (2009) and List (2004), which focus on group decision making. SOCIAL JUSTICE, GENOMIC JUSTICE AND THE VEIL OF IGNORANCE 71 Mongin, P. 2001. The impartial observer theorem of social ethics. Economics and Philosophy 17: 147–149. Okasha, S. 2009. Individuals, groups, fitness and utility: multi-level selection meets social choice theory. Biology and Philosophy 24: 561–584. Rawls, J. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Ridley, M. 2000. Mendel’s Demon: Gene Justice and the Complexity of Life. London: Weidenfeld and Nicholson. Risse, M. 2002. Harsanyi’s ‘utilitarian theorem’ and utilitarianism. Noûs 36: 550–577. Roemer, J.E. 1998. Theories of Distributive Justice. Cambridge, MA: Harvard University Press. Sen, A.K. 1976. Welfare inequalities and Rawlsian axiomatics. Theory and Decision 7: 243–262. Sen, A.K. 1977. Non-linear social welfare functions: a reply to Professor Harsanyi. In Foundational Problems in the Special Sciences, eds. R. Butts and J. Hintikka, 297–302. Dordrecht: Reidel. Sen, A.K. 1986. Social choice theory. In Handbook of Mathematical Economics III, eds. M.D. Intriligator and K.J. Arrow, 1073–1181. Amsterdam: North Holland. Skyrms, B. 1996. Evolution of the Social Contract. Cambridge: Cambridge University Press. Sober, E. 1998. Three differences between evolution and deliberation. In Modelling Rationality, Morality and Evolution, ed. P. Danielson, 408–422. Oxford: Oxford University Press. Úbeda, F. and D. Haig 2005. On the evolutionary stability of Mendelian Segregation. Genetics 170: 1345–1357. Vickrey, W.S. 1945. Measuring marginal utility by reaction to risk. Econometrica 13: 319–333. Weymark, J. 1991. A reconsideration of the Harsanyi–Sen debate on utilitarianism. In Interpersonal Comparisons of Well-being, eds. J. Elster and J.E. Roemer, 225–320. Cambridge: Cambridge University Press. A. PROOF OF PROPOSITION 1 S is the set of alternative gametic outputs. So each x ∈ S is a finite sequence of As and a s, e.g. Aa Aa a AAa . Let Nx be the total number of gametes produced in alternative x. Let Ax be the total number of A gametes produced in alternative x. Let x′ be the impartial extended lottery that corresponds to x. So x′ ≡ < P (x, A) = P (x, a ) = 12 >. Let x′′ be the meiotically fair lottery that corresponds to x. Let Vo be the impartial observer’s valuation function. Let VA be the A allele’s valuation function. Let Va be the a allele’s valuation function. We wish to show that Vo (x′) = VA(x′′). Consider the impartial extended lottery x′ ≡ < P (x, A) = P (x, a ) = 12 >. By the principle of welfare identity, and the fact that Vo (x′) is expectational, we have: Vo (x′) = 12 VA(x) + 12 Va (x). But VA(x) = Ax and Va (x) = Nx − Ax . Therefore Vo (x′) = 1 2 Nx . Next, consider the meiotically fair lottery x′′. x′′ is an equiprobable lottery over 2 Nx alternatives in S. In each of these alternatives, the number of A alleles ranges from 0 to Nx . The proportion of alternatives in which there are exactly z A alleles is: 1 2Nx (Nx z ) . So VA(x′′) = 12Nx . ∑Nx z=0 z. (Nx z ) = 12 Nx . Therefore Vo (x′) = VA(x′′) = 12 Nx . That is, for any alternative x ∈ S, the impartial observer’s valuation of the corresponding impartial extended lottery x′ equals the A allele’s valuation of the corresponding meiotically fair lottery x′′. QE D 
work_ajprvlvltbdl7oj3lid5durnti	----	Critical Race Theory An Introduction Richard Delgado and Jean Stefancic Foreword by Angela Harris NEW YORK UNIVERSITY PRESS New York and London II Contents Acknowledgments Foreword by Angela Harris Introduction A. What Is Critical Race Theory? B. Early Origins C. Relationship to Other Movements D. Principal Figures E. Spin-off Movements F. Basic Tenets of Critical Race Theory G. How Much Racism Is There in the World? H. Organization of This Book Questions and Continents for Chapter I Suggested Readings Hallmark Critical Race Theory Thèmes A. Interest Convergence, Material Determinism, and Racial Realism B. Revisionist History C. Critique of Liberalism D. Structural Determinism 1. Tools of Thought and the Dilemma of Law Reform 1 2 3 4 5 6 6 9 11 13 14 15 16 20 21 25 26 XI xii I Contents III IV 2. The Empathie Fallacy Classroom Exercise 3. Serving Two Masters 4. Race Remédies Law as a Homeostatic Device Questions and Continents for Chapter II Suggested Readings Légal Storytelling and Narrative Analysis A. Opening a Window onto Ignored or Alternative Realities B. Counterstorytelling C. Cure for Silencing D. Storytelling in Court E. Storytelling on the Défensive Questions and Conintents for Chapter III Suggested Readings Looking Inward A. Intersectionaliry B. Essentialism and Anti-Essentialism C. Nationalism versus Assimilation Classroom Exercise Questions and Comments for Chapter IV Suggested Readings Power and the Shape of Knowledge A. The Black-White Binary B. Critical White Studies Classroom Exercise C. Other Developments: Latino and Asian Critical Thoughr, Critical Race Feminism, Queer-Crit Theory Questions and Comments for Chapter V Suggested Readings 27 29 30 31 33 34 37 39 42 43 45 46 47 48 51 51 56 59 63 64 65 67 67 74 80 81 84 85 VI VII VIII Contents Critiques and Responses to Criticism Classroom Exercise Questions and Comments for Chapter VI Suggested Readings Critical Race Theory Today A. The 1990s B. Capitalism on the Rampage 1. Unmasking Color Blindness 2. Race, Class, Welfare, and Poverty 3. Globalization C. Power D. Identity Classroom Exercise Questions and Comments for Chapter VII Suggested Readings Conclusion A. The Future B. A Critical Race Agenda for the New Century C. Likely Responses to Critical Race Theory 1. Critical Race Theory Becomes the New Civil Rights Orthodoxy 2. Critical Race Theory Marginalized and Ignored 3. Critical Race Theory Analyzed, but Rejected 4. Partial Incorporation Classroom Exercise Questions and Comments for Chapter VIII Suggested Readings Glossary of Ternis Index About the Authors 1 xiii 87 95 97 98 101 101 102 103 107 111 113 120 121 123 125 129 129 131 133 133 134 134 135 135 137 138 141 157 167 
work_am65pdhfqrckdd2y5favifcb5i	----	[PDF] Engineering and Social Justice | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.2200/S00117ED1V01Y200805ETS007 Corpus ID: 12253774Engineering and Social Justice @inproceedings{Riley2008EngineeringAS, title={Engineering and Social Justice}, author={D. Riley}, booktitle={Engineering and Social Justice}, year={2008} } D. Riley Published in Engineering and Social… 2008 Sociology, Computer Science Abstract The profession of engineering in the United States has historically served the status quo, feeding an ever-expanding materialistic and militaristic culture, remaining relatively unresponsive to public concerns, and without significant pressure for change from within. This book calls upon engineers to cultivate a passion for social justice and peace and to develop the skill and knowledge set needed to take practical action for change within the profession. Because many engineers do not… Expand View via Publisher trincoll.edu Save to Library Create Alert Cite Launch Research Feed Share This Paper 216 CitationsHighly Influential Citations 23 Background Citations 102 Methods Citations 11 Results Citations 2 View All Figures and Topics from this paper figure 2.1 figure 2.2 Persistence (computer science) Microsoft Outlook for Mac Social engineering (security) 216 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Social Justice and the Engineering Profession: Challenging Engineering Education to Move Beyond the Technical R. Nasser, M. Romanowski Political Science 2016 5 Save Alert Research Feed Educating Engineers Under a Social Justice Perspective P. Jiménez, J. Pascual, A. Mejía Sociology, Computer Science Int. J. Eng. Pedagog. 2020 Highly Influenced PDF View 6 excerpts, cites background Save Alert Research Feed Engineering, Social Justice, and Peace: Strategies for Educational and Professional Reform Dean Nieusma Political Science 2013 12 Save Alert Research Feed Engineering Design and Social Justice: A Systematized Literature Review Morgan M. Hynes, Cristian Eduardo Vargas-Ordóñez Sociology 2020 PDF Save Alert Research Feed Canons against Cannons? Social Justice and the Engineering Ethics Imagi- nary D. Riley, Y. Lambrinidou Political Science 2015 22 PDF Save Alert Research Feed Engineering, Social Justice and Peace : A Revolution of the Heart G. Catalano, C. Baillie Political Science 2006 10 PDF View 1 excerpt, cites methods Save Alert Research Feed Social Justice in Control Systems Engineering K. Johnson, Jon A. Leydens, Barbara M. Moskal, D. Silva, Justin Stephen Fantasky Economics 2015 6 PDF Save Alert Research Feed Engineering and Social Justice: How to help students cross the threshold Jens Kabo, Richard J. F. Day, C. Baillie Sociology 2009 8 View 3 excerpts, cites background Save Alert Research Feed Social Justice: A Missing, Unelaborated Dimension in Humanitarian Engineering and Learning Through Service Jon A. Leydens, J. Lucena Engineering 2014 32 PDF Save Alert Research Feed Towards a pedagogical model of social justice in engineering education P. Jiménez, J. Pascual, A. Mejía Computer Science, Sociology ICSIE 2019 1 Highly Influenced View 8 excerpts, cites background and methods Save Alert Research Feed ... 1 2 3 4 5 ... References SHOWING 1-10 OF 110 REFERENCES SORT BYRelevance Most Influenced Papers Recency Engineers within a Local and Global Society C. Baillie Computer Science, Sociology Engineers within a Local and Global Society 2006 41 Save Alert Research Feed Engineering Ethics: Peace, Justice, and the Earth G. Catalano Computer Science, Engineering Engineering Ethics: Peace, Justice, and the Earth 2006 50 Highly Influential View 7 excerpts, references background Save Alert Research Feed Justice and the Politics of Difference I. M. Young Political Science 1990 6,148 View 2 excerpts, references background Save Alert Research Feed Witnessing and Testifying: Black Women, Religion and Civil Rights R. Ross Sociology 2003 44 Save Alert Research Feed A theology of liberation: history, politics, and salvation G. Gutiérrez Sociology 1973 698 Save Alert Research Feed Church, Charism and Power: Liberation Theology and the Institutional Church L. Boff Art 1985 79 Save Alert Research Feed Sexism and God-talk : toward a feminist theology : with a new introduction R. Ruether Sociology 1993 337 Highly Influential View 10 excerpts, references background Save Alert Research Feed A Black Theology of Liberation James H. Cone Philosophy 1970 306 View 3 excerpts, references background Save Alert Research Feed Theatre of the Oppressed A. Boal Art 1979 1,248 Highly Influential View 9 excerpts, references background and methods Save Alert Research Feed Defending the Nation J. Krige Political Science 2007 15 Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Figures and Topics 216 Citations 110 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_as2aqif6ljbxdphr6b7zyplqgm	----	Physical education, privatisation and social justice Browse Explore more content JEBD Privatisation editorial Intro.pdf (288.88 kB) Physical education, privatisation and social justice CiteDownload (288.88 kB)ShareEmbed journal contribution posted on 04.03.2015, 13:35 by John Evans, Brian Davies Physical education, privatisation and social justice Categories Medical and Health Sciences not elsewhere classified Keywords untagged History School Sport, Exercise and Health Sciences Published in Sport, Education and Society Volume 20 Issue 1 Pages 1 - 9 Citation EVANS, J. and DAVIES, B., 2015. Physical education, privatisation and social justice. Sport, Education and Society, 20 (1), pp. 1 - 9. Publisher © Taylor & Francis Version SMUR (Submitted Manuscript Under Review) Publisher statement This work is made available according to the conditions of the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) licence. Full details of this licence are available at: https://creativecommons.org/licenses/by-nc-nd/4.0/ Publication date 2015 Notes This is a Submitted Manuscript of an editorial article published in Sport, Education and Society on 26 Sep 2014, available online: http://www.tandfonline.com/10.1080/13573322.2014.942624 DOI https://doi.org/10.1080/13573322.2014.942624 ISSN 1357-3322 eISSN 1470-1243 Publisher version http://dx.doi.org/10.1080/13573322.2014.942624 Language en Administrator link https://repository.lboro.ac.uk/account/articles/9619184 Licence CC BY-NC-ND 4.0 Exports Select an optionRefWorksBibTeXRef. managerEndnoteDataCiteNLMDC Categories Medical and Health Sciences not elsewhere classified Keywords untagged Licence CC BY-NC-ND 4.0 Exports Select an optionRefWorksBibTeXRef. managerEndnoteDataCiteNLMDC Hide footerAboutFeaturesToolsBlogAmbassadorsContactFAQPrivacy PolicyCookie PolicyT&CsAccessibility StatementDisclaimerSitemap figshare. credit for all your research. 
work_ashvy6u3j5h7bn4w2bpxbccoii	----	LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Volume 7, Issue 1 2012 Article 13 Asian Journal of Comparative Law LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Md. Saiful Karim, Southern Cross University Okechukwu Benjamin Vincents Mia Mahmudur Rahim, Macquarie University Recommended Citation: Karim, Md. Saiful; Vincents, Okechukwu Benjamin; and Rahim, Mia Mahmudur (2012) "LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE," Asian Journal of Comparative Law: Vol. 7: Iss. 1, Article 13. DOI: 10.1515/1932-0205.1344 ©2012 De Gruyter. All rights reserved. Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Md. Saiful Karim, Okechukwu Benjamin Vincents, and Mia Mahmudur Rahim Abstract This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies. KEYWORDS: Environmental legal activism, law and social movements, right to a decent environment, PIL, locus standi, Bangladesh Author Notes: Md. Saiful Karim, Associate Lecturer, School of Law and Justice, Southern Cross University, Lismore, Australia. He wishes to thank Professor Abdullah-Al-Faroque for his valuable comments on an earlier draft (saiful24bd@yahoo.com). Dr. Okechukwu Benjamin Vincents, Barrister and Solicitor, Law Society of Upper Canada. Special thanks to Prof. Chris Hilson for his useful suggestions on social movements. Mia Mahmudur Rahim, PhD , Macquarie Law School, Macquarie University. Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM I. INTRODUCTION Public interest litigation (PIL) denotes litigation initiated for the protection of public interest. In this type of litigation, the aggrieved party need not be the party in the court of law; this type of litigation can be introduced by the court itself or by any member of the public. This is an example of legal activism, by which society can claim redress for an act that is not directly safeguarded by the Constitution and where the State has failed to redress it. 1 In A. B. S. K. Songh (Railway) v. Union of India, 2 the Supreme Court of India provides the cultural orientation of PIL in this region. In this case, the court clearly mentions that the current jurisprudence of this region 3 is not an individualistic Anglo-Indian model; it is broad-based and people-oriented. It has toned down the confusion regarding the locus standi, as it mentions that “the narrow concept[s] of ‘cause of action’ and ‘person aggrieved’ and ‘individual litigation’ are becoming obsolescent”. PIL took its form after the seminal judgment of the Supreme Court of India in S. P. Gupta v. Union of India. 4 Until 1994, Bangladesh had no reported PIL decided by the Supreme Court. The Bangladesh Environmental Lawyers Association (BELA) 5 brought an environmental issue in the form of a PIL before this court for the first time in this country. Dr. Mohiuddin Farooque v. Bangladesh & Others 6 was the first case of 1 Tsun Hang Tey, “Public interest Litigation in Malaysia: Executive Control and Careful Negotiation of the Frontiers of Judicial Review” in Po Jen Yap & Holning Lau, eds., Public interest Litigation in Asia (London: Routledge, 2010); Vipon Kititasnasorchai & Panat Tasneeyanond, “Thai Environmental Law” (2000) 4 S.J.I.C.L. 1; Surya Deva, “Public interest Litigation in India: a Quest to Achieve the Impossible?” in Po Jen Yap & Holning Lau, eds., Public interest litigation in Asia (London: Routledge, 2010). 2 A.I.R. SC. 298,317 (1981). 3 The Indo-Pak Sub Continent including Bangladesh and Nepal. 4 In this case, the court provides the framework of this type of litigation as follows: “[W]here a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without any authority of law…and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court of relief, any member of the public can maintain an application for an appropriate direction, order or writ”. For details, see AIR S.C. 149 (1982) at 188. 5 Established in 1992, BELA is the best known Bangladeshi NGO working with the broad objective of promoting environmental justice and contributing to the development of sound environmental jurisprudence. BELA is a member of IUCN–the World Conservation Union, Environmental Law Alliance Worldwide and the South Asian Watch on Trade, Economics and Environment. In 2003 it received the Global 500 Role of Honors of the United Nations. For details, see online: <http://www.belabangla.org/bela/index.php?option=com_content&view= article&id=48:introducing-bela& catid=40:belabangla> (last accessed 17 November 2011). 6 Writ Petition No. 891 of 1994. Dr. Mohiuddin Farooque was the founder of BELA. 1 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM this nature in this country. Thus, the determination of locus standi of the petitioner was the vital substantive issue to be settled. 7 In this case, the legality of an experimental structural project of the huge Flood Action Plan of Bangladesh was challenged. The High Court Division of the Supreme Court of Bangladesh 8 initially rejected the petition of this case on the grounds that the petitioner had no standing. The petitioner had preferred an appeal to the Appellate Division of the Supreme Court of Bangladesh. The Division decided the issues of locus standi in PIL. In July 1996, the Appellate Division gave its decision, in which Mustafa Kamal, J. observed: In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association, as distinguished from a local component of a foreign organisation, espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102. Since 1994, BELA, Bangladesh Legal Aid and Services Trust (BLAST), Ain o Salish Kendra (ASK), and numerous lawyers have undertaken a large number of cases that have contributed to the development of PIL in this country. To date, the PILs in this country have been due to various environmental problems; amongst these, the relief sought against pollution caused by companies is prominent. This is mainly because the environmental regulation framework and this country’s governmental agencies are either inefficient, biased, or do not have adequate strategies to tackle environmental degradation by business operations. In Bangladesh, the human right to a decent environment has been established as a fundamental right. The judicial activism that made this possible is a direct outcome of the activism of the environmental lawyers. In most of the cases, it is those lawyers that initiated the arguments that the courts took up in reaching the favourable decisions. The judges themselves have even voiced 7 Writ Petition No. 998 of 1994. 8 The Supreme Court of Bangladesh is the highest court of this country. This court is divided into two Divisions: The Appellate Division and the High Court Division. Both these divisions sit in Dhaka. The High Court Division has some original jurisdiction and it is the appellate authority of the subordinate courts. It decides all writ petitions. Against the decision of this Division, an aggrieved person can go to the Appellate Division. The decision of this Division is final. These Divisions are safeguarded by the Constitution and they provide clarification of any issues related to the constitutional provisions. For details, see Articles 94–113 of the Constitution of the Peoples’ Republic of Bangladesh. 2 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM appreciation of the efforts of the environmental lawyers on more than one occasion.9 However, the successes of this activism via environmental PIL still have significant problems beyond the limitations of PIL. This activism in Bangladesh often develops “policy evolution fora” for a particular national issue and influences executive governance through judicial governance in sectors highlighted by groups of public interest litigants. Along with an insufficient impact on a substantive change into the social movement, this type of overlapping in the major organs of the state illustrates some dissatisfaction with judicial process. Government efforts to control environmental legal activist organisations under NGO regulations comprise another obstacle for this activism. This hinders the entrance of other organisations into the legal activism arena. 10 Additionally, ongoing limitations in resources are continually a major bottleneck, even for well- established organisations. For instance, these organisations are in extreme shortage of legal and scientific literature on the environment. Research and publication from the social movement organisations are insufficient. Moreover, there is a dearth of supporting quality research from academia. These factors have compelled the environmental lawyers to carryout research by themselves. Nevertheless, it is very difficult for the lawyers to conduct extensive research in light of time constraints and limited funds. To compound matters, each time the environmental lawyers refer to in-house research in arguments, their positions carry less weight because the researcher himself is a party to the dispute. Sometimes, environmental organisations appear helpless in their fight against wealthy and influential parties, since litigation in Common Law courts involves a great amount of resources. Threats of death and other forms of harm are common against human rights defenders or environmental activists of developing countries, and Bangladesh is no exception. 11 Moreover, the social change motion set by the judicial activism in this country, in most cases, is less than participatory, which has (arguably) led to unrealistic solutions. There are some limitations of this activism, with respect to 9 Dr. Mohiuddin Farooque v. Bangladesh and Others, 55 DLR (HCD) 69 (2003) (hereinafter Industrial Pollution Case) at [62]; Dr. Mohiuddin Farooque v. Bangladesh and Others, 50 DLR (HCD) 84 (1998) at [83] (hereinafter FAP 20 Judgment on Merit). 10 Asian Centre for Human Rights, “Bangladesh's Offer: Become GONGOs or Be Ready for Government Takeover”, online: <http://www.achrweb.org/Review/2004/0704.htm> (last accessed 28 January 2009); Shah A.M.S. Kibria, “Farewell to the NGOs: Their Days in Bangladesh are Over?” The Daily Star (6 February 2004). 11 Amnesty International, “Bangladesh: Human Rights Defenders Under Attack”, online: <http://www. amnesty.org/en/library/asset/ASA13/004/2005/en/dom-ASA130042005en.pdf> (last accessed 28 January 2009). 3 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM access, effectiveness, and sustainability. These shortcomings need to be explored and addressed if the true promise of this activism is to be unleashed. Given this, the aim of the present paper is to discuss the evolution of environmental legal activists in Bangladesh – to highlight the achievements and note the challenges. In having this discussion, various analytical approaches may be adopted. However, the paper will lean on some law and social movement theories to put the Bangladesh environmental movement in perspective and explicate the adopted strategies. 12 This approach has the added advantage of providing some basis for making recommendations useful not only for Bangladeshi activists but also for other organisations that are similarly situated. The aspect of social movement theories that is the main concern in this paper is litigation as a movement strategy – particularly legal mobilisation, which helps illuminate the reasons for the choice of litigation as a movement strategy. To help locate environmental civil society organisations in Bangladesh within the social movement discourse, the remainder of the present section briefly discusses social movements generally. However, it also discusses the role of law in social movements and highlights the features of legal mobilisation theory of major concern in the context of the present study. The second section of the paper discusses the achievements of the Bangladesh environmental legal activists, particularly regarding the recognition of the right to a decent environment, the standing of some civil society organisations, and the progressive development of environmental jurisprudence in Bangladesh. The third section proceeds based on legal mobilisation and other social movement theories to discuss the choice of litigation in Bangladesh and the possible reasons for the successes seen in the achievements outlined in the second section. Section four discusses the limits of litigation, particularly PIL as a movement strategy. Section five summarises the findings of the analysis and offers predictions of future developments, opportunities, and challenges for environmental activism in relation to PIL. A. Social Movements The aim of this part is not to provide a template for determining whether or not the civil society organisations engaged in environmental legal activism in Bangladesh qualify as social movement organisations. Instead, it is to map an 12 Key questions answered by social movement theorists include “why movements originate when they do, how they attract and maintain support, how they present issues and formulate strategies and tactics, how they structure organizations, how they change cultures, why they generate opposition and sometimes decline, and how and why they succeed or fail in their objectives”, S. Staggenborg, Social Movements (Don Mills, Ont.: Oxford University Press, 2008) at 2. 4 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM overview of some of the views adopted by scholars on the meaning of the term. 13 As McCann noted, “considerable disagreement and uncertainty exist regarding just how the very concept of ‘social movement’ itself should be defined.” 14 Hence, the overriding considerations here are whether the activities of the organisations in focus can be explicated by reference to social movement theories and whether reference to such theories can provide useful insight, particularly regarding lessons learned from prior studies. According to Charles Tilly in Social Movements, a distinctive way of pursuing public politics began to take shape in western countries during the late 18th century, which has since spread and come to be known as social movements. Such movements combined three elements: 1) campaigns of collective claims on target authorities; 15 2) an array of claim-making performances, including special purpose associations, public meetings, media statements, and demonstrations (social movement repertoire); and 3) public representations of the causes’ worthiness, unity, number of members, and commitment. 16 In Tilly’s view, social movement campaigns involve interactions between at least three parties: “a group of self-designated claimants, some object(s) of claims, and a public of some kind.” 17 He treated the concept as a distinctive form of contentious politics. It is contentious because social movements involve collective making of claims that would conflict with someone else’s interests if realised. It is also politics, because governments of some sort figure somehow in the claim-making as either claimants, objects of the claim, allies of the objects, or monitors of the contention. 18 In Contentious Politics, Charles Tilly and Sidney Tarrow added social movement bases – the organisations, networks, traditions, and solidarities that sustain social movement activities – as a fourth element to the three elements mentioned above, and proffered a definition of social movements. 19 They defined it as “a sustained campaign of claim making, using repeated performances that 13 There are different definitions of social movements, and some of these do not even consider litigation as a social movement tactic/strategy. Given this, this article confined it within the established thoughts of social movement and judicial activism, and do not attempt to made any comparative study with the different definitions of social movement and judicial activism. 14 M. McCann, “How Does Law Matter for Social Movements” in B. Garth & A. Sarat, eds., How Does Law Matter (Evanston, IL: Northwestern University Press, 1998) at 77. 15 C. Tilly, Social Movements, 1768-2004 (Boulder: Paradigm Publishers, 2004) at 4. For Tilly, authorities include government officials, property owners, religious functionaries and other whose action or inaction significantly affect the welfare of many people. 16 Ibid. at 7. 17 Ibid. at 4; “A campaign always links at least three parties: a group of self-designated claimants, some object(s) of claims, and a public of some kind…Not the solo actions of claimants, object(s), or public, but interactions among the three, constitute a social movement. (emphasis added)”. 18 Ibid. at 3. 19 C. Tilly & S. Tarrow, Contentious Politics (Boulder: Paradigm Publishers, 2007) at 8. 5 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM advertise the claim, based on organisations, networks, traditions, and solidarities that sustain these activities.” 20 This, as is to be expected, is not the only characterisation of “social movements”: many other theorists adopt descriptions that do not distinguish as strictly as Tilly’s does. Suzanne Staggenborg, for example, identified several theorists who argue that movement activity occurs in a wide range of venues and through a variety of forms of collective action. Among these, McCarthy and Zald, define social movements as “a set of opinions and beliefs in a population which represents preferences for changing some elements of the social structure and/or reward distribution of a society.” 21 While this definition more easily explains most civil society organisations that would benefit from social movement theories, one of the problems with its non-restrictive general view is that it fails to adequately differentiate social movements from minority political parties, interest groups, and other forms of collective action for purposes of analysis. This is an important point because, to put it in Tilly’s words, expansion of the term to include all sorts of popular collective action may “badly handicap any effort to describe and explain how social movements actually work”. 22 Beyond this handicap, Tilly saw little harm in such a broadening of the term in casual political discussion. 23 Notwithstanding, many theorists have sought ways to distinguish social movements from other forms of collective action. For example, McCann outlined four ingredients to delimit social movements and differentiate them from political parties and interest groups for the purpose of the introduction to his Law and Social Movements. Only three of those are necessary for our purposes here: 1) “Social movements aim for a broader scope of social and political transformation than do more conventional political activities.” 24 This means that, although social movements may press for tangible short-term goals, they are inspired by more radical visions of a different and better society. 25 2) Although social movements employ a wide range of tactics (as do parties and interest groups), social movements would tend to rely more on communicative strategies of information disclosure as well as disruptive tactics such as protests, strikes, and marches that halt or upset ongoing practices. These are sometimes combined with conventional methods, such as litigation. The emphasis here is on “disruptive”. Litigation here 20 Ibid. 21 See S. Staggenborg, Social Movements, supra note 12 at 6–7. 22 C. Tilly, Social Movements, 1768-2004, supra note 15 at 7. 23 Ibid. 24 M. McCann, “Introduction” in M. McCann, ed., Law and Social Movements (Burlington: Ashgate, 2006) at xiv. 25 Ibid. 6 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM serves as a platform for “rebellion” against existing structures of relations. 26 3) “Social movements tend to develop from core constituencies of non-elites whose social positions reflect relatively low degrees of wealth, prestige, or political clout.” 27 This does not mean that social movements and the elite do not mix, because “movements may find leadership or alliance among elites and powerful organisations”. 28 In sum, theorists like Tilly have favoured a narrowly delimited concept of social movement, while others like McCarthy and Zald prefer a less restrictive description, and yet others like McCann proffer a way to distinguish movements from other forms of collective action when a less restrictive definition is utilised. McCann went on to discuss legal mobilisation by social reform movements. 29 In doing so, he addressed Rosenberg’s perspective, which is a much stronger critic of judicial activism for social movement. 30 While Rosenberg questions whether judicial activism can bring about social change at all, McCann tempers the doubts by raising his argument that this activism may not do so directly, but that the symbolic and strategic values behind this activism can. 31 He built this argument on Scheingold’s perspective on the politics of rights. 32 McCann explored some theories that are deemed useful for our purposes here. Among these, legal mobilisation is one of the theories that explore the relationship between law and social movement – a brief discussion of this relationship is important to help frame the present paper. 26 Ibid. See also K. J. Fitzgerald & J. Kathleen, “Radical Social Movement Organizations: A Theoretical Model” (2000) 41(4) The Sociological Quarterly 573–592. 27 Ibid. 28 Ibid. 29 M. McCann, “Legal Mobilization and Social Reform Movements” in M. McCann, ed., Law and Social Movements (Burlington: Ashgate, 2006) at 3–32. 30 Regarding Rosengber’s perspective, see G. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991) at xii+425; G. Rosenberg, “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann” (1993) 17 Law & Soc. Inquiry 761-778; for a critique of Rosenberg’s arguments, see M. Feeley, “Hollow Hopes, Flypaper, and Metaphors” 17 Law & Soc. Inquiry 745-760. 31 McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: Chicago University Press Ltd, 1994); M. McCann, “Reform Litigation on Trial” (1992) 4 Law & Social Movements 715–747. 32 Scheingold argues that law surfaces, at least in part, as a “myth of rights.” The myth of rights refers to the widespread assumption that 1) “litigation can evoke a declaration of rights from courts,” 2) “that it can, further, be used to assure the realization of these rights,” and 3) “that realization is tantamount to meaningful change”. In this way, the myth of rights expresses an elemental faith in the promises of constitutional government, a “faith in the political efficacy and ethical sufficiency of law as a principle of government.” For details, see S. Scheingold, The politics of Rights: Lawyers, Public Policy, and Political Change (Ann Arbor: University of Michigan Press, 2004). 7 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM 1. Law and Social Movements In Law and Social Movements, McCann noted that social scientists have paid considerable attention to the role of law, litigation, and lawyers in social movements, and that consensus on these issues has generally mirrored changes in the larger political culture. 33 “Most studies in the late 1950s and 1960s, for example, provided a generally optimistic view, emphasizing the growing accessibility of courts to long-marginalized groups such as racial minorities and the poor”. 34 Conversely, publications on the topic, prior to 2006, have presented a more pessimistic view of the utility of litigation for advancing progressive social change in a capitalist society. 35 One body of literature, mostly from the Critical Legal Studies movement, has critically analysed the ideological biases of prevailing public and private law doctrines, which tend to support the status quo power relations. 36 Another body of literature focused on the institutional limitations and trade-offs inherent in social movement litigation. These studies point out that the neediest citizens lack the resources to undertake litigation, while those who can afford it find out that it is limiting, costly, and can fragment movement-building efforts, discourage people from popular mobilisation strategies, and lead to an emphasis of judicial victory over genuine social change. 37 Nevertheless, in his search for a balanced perspective on this issue, McCann has been led to reconsider the insights of “legal mobilisation” theory. “This approach fully acknowledges that litigation alone rarely advances significant social change, but at the same time it recognizes that legal rights advocacy can in some circumstances provide a useful resource for social movement building and strategic political action.” 38 The legal mobilisation approach urged by McCann sees laws as identifiable traditions of symbolic practice. Quoting Marc Galanter, 39 McCann notes that law should be analysed more as a system of cultural and symbolic meanings instead of as a set of operative controls. Law affects people primarily through communicative symbols – threats, promises, models, persuasion, legitimacy, stigma, etc. 40 “Evaluation of how Reform litigation and other institutional activities matter thus require accounting for the variable ways that 33 Ibid. at 3. 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. at 4. 38 Ibid. 39 M. Galanter, “Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society” (1983) 31 UCLAL Rev. 4 at 127. 40 Ibid. 8 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM differently situated groups interpret and act on those signals sent by officials over time.” 41 Since the content and relative power of legal meaning vary among differently and unequally situated citizens, legal norms, conventions and tactical manoeuvers also vary in significance over time. It also follows that discursive strategies and institutional ploys become more significant for some types of struggles than for others. This leads to a further assumption that “law…can at once both empower and disempower variously situated social groups in different types of relations.” 42 Since law, from this viewpoint, can perpetuate status quo power relations (though it can equally provide sources of opposition and change within particular institutional terrains), the more important challenge is to “determine how and to what degree groups can work within and through these legal traditions to advance their causes.” 43 In this regard, in a social movement approach, there are two levels in which legal power can be relevant to action: 1) in shaping the overall “structure of opportunities” available to movements, and 2) in the various legal resources available to groups in their struggles. 44 As will be seen below, it is also especially regarding “opportunities” and “resource mobilisation” 45 that the kind of legal mobilisation theory advocated by McCann has been the most useful in analysing the legal activism by the environmental social movement in Bangladesh. In this paper, “environmental legal activism” refers to the effort of some members of the lawyers’ community to ensure sound environmental and ecological order by applying the legal mechanism as a tool. This includes undertaking legal action against originators of environmental pollution. The conducting of research, awareness creation, and other forms of legal assistance and advocacy are also countenanced by the term. Environmental PIL aims to 41 M. McCann, supra note 14 at 81. 42 Ibid. at 82. 43 Ibid. 44 Ibid. 45 It would be worth describing the nexus amongst “right litigation”, opportunities and resource mobilisation. Litigations for rights arose due to two sets of reasons – changes to political opportunity and the involvement of certain types of people in the political movement, specially lawyers. Political opportunity (including the justice delivery system) structure is a concept under a social movement theory known as “political process model”. In this process, resource mobilisation is a vital component. In the political process model, resource mobilisation is also called “mobilising structures” that refers to the ability of the social actors like human and organisation. This is an extended version of the thoughts of resource mobilisation within the political process model. In this article, when we refer to “structural opportunity” we usually mean this version of resource mobilisation. For details of these types of resource mobilisation, see S. M. Buechlers, Social Movement Theory: A Sociology of Knowledge Analysis in Social Movements in Advanced Capitalism: The Political Economy and Cultural Construction of Social Activism (New York: Oxford University Press, 1999); D. Adams, Political Process and the Development of Black Insurgency 1930-1970 (Chicago: Chicago University Press, 1999). 9 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM ensure access to justice for all members of the society, particularly members of the marginalised segment of the society. Therefore, legal activism comprehends the entire range of manoeuvres envisaged by legal mobilisation theories, including litigation. Litigation has historically been an important component of the repertoire of claim-making strategies available to environmental movements around the world. While parts of the present paper establish that litigation has been effectively employed in Bangladesh, legal mobilisation theories form the primary basis for explicating the choice of litigation by the movement organisations and the reasons for the successes. However, other related theories that deal with the rise and fall of social movements also help to buttress the limitations of litigation and the need to highlight other activist roles such as legislative and policy advocacy. Nevertheless, legal activism is not to be confused with judicial activism, which relates to the activism of judges, although, as will be seen below, the receptiveness of the judiciary to novel environmental claims is vital to the effectiveness of litigation as a social movement strategy. Furthermore, for the purposes of this paper, the view has been adopted that “environmental justice” can be achieved through “the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” 46 Perhaps the concept is best understood by drawing attention to “environmental injustice”: Environmental injustice occurs whenever some individual or group bears disproportionate environmental risks, like those of hazardous waste dumps, or has unequal access to environmental goods, like clean air, or has less opportunity to participate in environmental decision-making. In every nation of the world poor people and minorities face greater environmental risks, have less access to environmental goods, and have less ability to control the environmental insults imposed on them. 47 Therefore, legal activism for the prevention of environmental injustice is another way of describing the focus of this paper. The next step is to show how the foregoing theories apply to the movement in Bangladesh. 46 EPA (USA), “Environmental Justice”, online: <http://www.epa.gov/environmentaljustice/ index.html> (last accessed 27 April 2009). 47 K. Shrader-Frechette, Environmental Justice: Creating Equality, Reclaiming Democracy (Oxford: Oxford University Press, 2002) at 3. 10 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM B. The Environmental Social Movement in Bangladesh The campaigns for environmental protection in Bangladesh, although varied and multifaceted, are sufficiently interlinked and sustained to meet most characterisations of “social movement”. They have even displayed all of the elements in Tilly’s restrictive characterisation of the term: collective claims, claim-making performances, and public representations of worthiness etc. The strong participants in these campaigns include, but are not limited to, the Bangladesh Centre for Advanced Studies (BCAS), the Bangladesh Poribesh Andolon (BAPA), and BELA. Since 1986, BCAS has been involved in research and publication on environmental issues. It seeks to address sustainable development through (a) environment-development integration, (b) good governance and people’s participation, (c) poverty alleviation and sustainable livelihoods, and (d) economic growth and public-private partnership. It has produced a number of publications that have influenced national environmental policymaking. 48 BCAS’s contribution to environmental conservation is recognised within and outside Bangladesh. 49 BAPA seeks to build a nationwide civic movement aimed at stopping and reversing environmental degradation in Bangladesh. It favours social mobilisation, policy advocacy, and conservation, and has organised conferences, adopted resolutions, and been involved in awareness campaigns through its publications, protests, and other activities. 50 BAPA’s contribution to the environmental movement is also acclaimed by a number of authors. 51 However, regarding environmental legal activism in Bangladesh, the oldest and most prominent of these organisations is BELA. In Tilly’s characterisation, it is the claims for a better environment, which brings these organisations together, that constitute the social movement, and not the organisations themselves. 52 Nevertheless, BELA and others engaged in litigation 48 See BCEAS, “BCAS website”, online: <http://www.bcas.net/AboutBCAS/About_Index.html> (last accessed 17 April 2009). 49 UNEP, “Climate Change Links 2008 Champions of the Earth Award Winners”, online: <http://www.unep.org/documents.multilingual/default.asp?documentid=525andarticleid=5738andl =en> (last accessed 25 June 2009). 50 See BAPA, “BAPA website”, online: <http://www.bapa.org.bd/Default.aspx > (last accessed 27 May 2009). 51 See D. A. Ahsan et al., “The Relationship of National and International Environmental NGOs in Bangladesh and Their Role in Wetland Conservation” (2009) 3 International Journal of Environmental Research 23 at 31; and N. Islam, “Broader Significance of the Environmental Movement in Bangladesh”, online: <http://www.ben-center.org/BEN/BAPA/ nazrulislam.oct20.htm> (last accessed 10 January 2009). 52 Tilly, supra note 15 at 6: (“Analysts often confuse a movement’s collective action with the organizations and networks that support the action or even consider the organizations and networks to constitute the movement…rather than the networks in which they engage”). 11 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM represent an important component of the campaigns: the litigation facet thereof. Whereas Tilly, did not countenance litigation as a social movement performance, legal mobilisation theorists like McCann do. C. Environmental Legal Activism in Bangladesh The majority of environmental protection achieved through legal activism discussed below is related to the activities of BELA. However, after the landmark judgment in the FAP-20 case (discussed below) – in which standing was allowed for environmental civil society organisations if certain conditions are present – some other human rights and legal aid organisations, including, BAPA, Bangladesh Legal Aid and Services Trust (BLAST), and Ain o Salish Kendra (ASK) began to participate in filing PILs for environmental protection. BLAST, ASK, and BELA have worked together to file a number of PILs for environmental protection. For example, both BELA and BLAST moved separate writ petitions for prevention of Vehicular Pollution in Dhaka City. 53 Additionally, BELA provides legal assistance to several other environmental organisations in filing writ petitions, some cases filed under the name of BELA were made on behalf of other environmental civil society organisations. 54 Since BELA is the only environmental civil society organisation in Bangladesh that has environmental legal advocacy as its reason for existence, it is not surprising that it has filed and won many more environmental cases than any of the others has. 55 This is why its activities and processes feature most prominently in the present analysis. Nevertheless, the road to the litigation championed by these organisations has been rife with obstacles. Bangladesh is gifted with an unparalleled natural panorama. The country is affluent in terms of natural resources and hardworking people. However, it is deficient in terms of sustainable and sound management of these environmental 53 Dr. Mohiuddin Farooque v. Bangladesh and Others, 55 DLR (HCD) 613 (2003) (hereinafter Dhaka City Vehicular Pollution Case). 54 Some of these cases are: Nijera Kori v. Bangladesh and others, Writ Petition no. 7248 of 2003 (Illegal Shrimp Cultivation); Bangladesh Environmental Lawyers Association (BELA) and Global Village, Rangamati v. Bangladesh and others, Writ Petition No. 2459 of 2004 (Construction of a Community Centre in the Sole Municipal Park of Rangamati town); Bangladesh Environmental Lawyers Association (BELA) and Thengamara Mohila Sabuj Sangha (TMSS) v. Bangladesh and others, Writ Petition No. 4244/04 (Illegal Sand Extraction from River Korota); Nijera Kori and others v. Bangladesh and others, Writ Petition No. 5194 of 2004 (Illegal Shrimp Cultivation and Settlement of Land in favour of Landless People). See BELA, “List of Public Interest Litigation”, online: <http://www.belabangla.org/html/pil.htm> (last accessed 30 January 2009). 55 BELA’s website lists 62 cases it has filed, about 43 of which have had some sort of decision. Most of the decided cases had positive outcome: online: <http://www.belabangla.org/ html/pil.htm> (last accessed 29 June 2009); none of the other organisations surveyed had anything close to these numbers on environmental issues. 12 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM resources. 56 Historically, the law and institutions dealing with natural resources in Bangladesh were “use” oriented; they are geared towards extracting maximum economic benefit. Sometimes, this approach forecloses the interest of future generations. 57 Like other South Asian common law counterparts, the legal system of Bangladesh features an adversarial legal system of “formal procedural justice dominated by litigants of equal status engaged in adversarial processes, and provides binding, win-lose remedies”. 58 One present day result of this system is that its adversarial nature is not always attractive, and its time-consuming, expensive nature means that the civil courts are not easily accessible to those who are most affected by environmental degradation. Additionally, the emerging principles of international environmental law have been very slow in finding their way into the jurisprudence of Bangladesh’s civil courts. Given the foregoing barriers in the legal system, litigation ought not to have been a viable option for environmental protection in Bangladesh. Nevertheless, some legal practitioners considered it possible to champion environmental justice through the courts. Against this backdrop, this paper now explores the contribution of legal activism in advancing the course of the overall social movement for ensuring environmental justice in Bangladesh. The barriers that existed in the legal system help explain why the legal activists did not choose well-travelled paths in civil procedure such as the traditional writ of summons, instead using writ petitions in procedures that may be described as PIL. In Bangladesh, a civil suit starts with the presentation of a plaint (writ of summons) by the plaintiff. However, there is no scope for PIL under the Civil Procedure Code, although there is scope for class action, representative action, and action in public nuisance. Notwithstanding, as will be seen below, Article 102 of the Constitution seems to provide such a scope and has been leveraged as such through writ petitions. 59 However, this does not explain why litigation was thought desirable in the first place. The paper leans on law and social movement theories to discuss the reasons for the PIL being used, the possible reasons for the measure of success achieved so far, and the limits of PIL as a social movement strategy. First, 56 See UNEP and ESCAP, Coastal Environmental Management Plan for Bangladesh Vol. One: Summary (Bangkok: UN, 1987). 57 M. Farooque, “Regulatory Framework and Some Examples of Environmental Contamination in Bangladesh” in BELA, ed., Selected Writings of Mohiuddin Farooque (Dhaka: BELA, 2004) at 20. 58 H. E. Chodosh et al., “Indian Civil Justice System Reform: Limitation and Preservation of the Adversarial Process” (1997-1998) 30 New York University Journal of International Law and Politics 1 at 1-4. 59 For a more detailed outline of the procedural rights in the courts of Bangladesh, see J. Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh (The Hague: Kluwer Law International, 2004) at 191–193; 289–292. 13 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM however, the section below will review some of the achievements of the legal activists before discussing the reasons and limits of the litigation strategy to help illustrate the broader discussion. II. THE ACHIEVEMENTS OF THE LEGAL ACTIVISTS The present section discusses a number of the cases that established the right to a decent environment in Bangladesh, granted standing to civil society organisations, and introduced some emerging international law principles into the county’s jurisprudence. However, these cases are discussed in a way that highlights the role of the activists; the arguments they proffered are highlighted, where possible. Although the emphasis here is not on the judicial activism of the judges, there are instances where the arguments of the activists stopped and the judges went a little further in some of the cases. The section is not meant to be exhaustive. 60 A. Recognition of the Right to a Decent Environment The recognition of the right to a decent environment as a fundamental right is viewed by some as the first important step towards ensuring environmental justice for all. The legal activists in Bangladesh share this view and have sought to establish this right in Bangladesh. Although there is no specific provision in the Constitution of Bangladesh on the fundamental right to a decent environment, Articles 31 and 32 of the Constitution do guarantee the right to life. The activists broadly interpreted this right to life to include the right to a decent environment. In this regard, a series of writ petitions filed by BELA engendered some positive development. The question of the broader meaning of the right to life was raised for the first time in the case of Dr. Mohiuddin Farooque v. Bangladesh and others (Radiated Milk Case). 61 In that case, part of several consignments of skimmed milk imported by Respondent No. 6, Danish Condensed Milk Bangladesh Limited, was found, after several tests, to contain radiation levels above the minimum approved level of 95 Bq per kilogram. The petitioner, the then Secretary General of BELA, submitted to the court in a public interest Writ 60 For a more elaborate discussion of environmental PIL in Bangladesh, see ibid.; For the literature on the PIL in general in Bangladesh, see N. Ahmed, Public Interest Litigation in Bangladesh: Constitutional Issues and Remedies (Dhaka: BLAST, 1999); R. Haque, Judicial Activism in Bangladesh: A Golden Mean Approach (Newcastle upon Tyne: Cambridge Scholars Publishing, 2011); W. Mesnki, “Public Interest Litigation: Deliverance From all Evils” (2002) 6 Bangladesh Journal of Law 1-9; J. Cooper, “Public Interest Law Revisited” (2000) 2 (1) Bangladesh Journal of Law 1-25. 61 Dr. Mohiuddin Farooque v. Bangladesh and Others, 48 DLR (HCD) 438 (1996) (hereinafter Radiated Milk Case). 14 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM Petition that the consumption of food items containing radiation levels above the approved limit is a threat to the life of the people of Bangladesh, including himself. He cited Article 18 (1) of the Constitution, which requires the State to take measures to raise the level of nutrition and improve public health. He also cited Article 21 (2) of the Constitution, which enjoins public officers to strive to serve the people and noted that the activities of government officers in dealing with the consignment in question have threatened the life of the people. He thus contended that the officers in question had violated Articles 31 (right to the protection of the law) and 32 (right to life and personal liberty) of the Constitution in not compelling the importer to send back the tainted milk. 62 Kazi Ebadul Hoque, J., agreed with the petitioner and thus agreed to the extended meaning of the right to life. Thus, the right to life was construed as including a right to a decent environment. This interpretation has had far reaching effects, most notably on the question of the locus standi of environmental activists. In Dr. Mohiuddin Farooque v. Bangladesh and others (the FAP-20 Case), 63 the relationship between the right to a decent environment and locus standi came out clearly. The case was an appeal of the decision of a High Court Division of the Supreme Court (hereinafter, High Court Division) summarily rejecting a writ petition filed by the then Secretary General of BELA. 64 The Petition was brought under Article 102 of the Bangladesh Constitution; 65 however, the trial court rejected it on the grounds that the appellant is not “any person aggrieved” within the meaning of that provision. On appeal, Dr. Faroque argued, inter alia, that those whose fundamental rights are being violated need not themselves invoke the jurisdiction under Article 102 (1); others espousing their cause may do so provided the persons aggrieved do not object. He noted, “the appellant is espousing the cause of violation of Fundamental Rights of a large segment of the population in respect of their right to life, property, and vocation”. 66 In the lead judgment, Mustafa Kamal, J., agreed. He found that Article 102 (1) is “a mechanism for the enforcement of Fundamental Rights which can be enjoyed by an individual alone insofar as his individual rights are concerned, but 62 Ibid. at [4]. 63 Dr. Mohiuddin Farooque v. Bangladesh and Others, 49 DLR (AD) 1 (1997) (hereinafter FAP 20 Case). 64 From the Judgment and Order dated 18-8-94 passed by the High Court Division in Writ Petition No. 998 of 1994. 65 The Constitution of the People’s Republic of Bangladesh (As Modified up to 17 May 2004), Article 102 (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution. 66 FAP 20 Case, supra note 63 at [25]. 15 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM which can also be shared by an individual in common with others when the rights pervade and extend to the entire population and territory.” 67 Having noted this finding, the next important question, for our purposes, is whether the protection of the environment amounts to the protection of a fundamental right. On this, His Lordship noted that the petition is concerned with an environmental issue but that there is no specific fundamental right in the constitution dealing with the environment. 68 However, he skirted the question of whether the fundamental right to life encompasses the right to a decent environment, choosing instead to rely on the averment of the appellant in making the connection between the environment and fundamental rights. However, in his concurring judgment, B. B. Roy Choudhury, J., did not shy away from making a direct connection between environmental protection and fundamental rights. This has helped the appellant getting locus standi to maintain the writ petition on their behalf. His Lordship noted that the protection and preservation of environment, ecological balance, freedom from pollution of air and water, and sanitation, without which life can hardly be enjoyed, are within the ambit of the constitution of this country. 69 In another writ petition filed by BELA to stop pollution from some ultra hazardous industries, A.B.M. Khairul Hoque J. shared the same view. He mentions that life means a “qualitative life among others, free from environmental hazards.” 70 In that case, BELA brought the action as a “person aggrieved” under Article 102 of the Constitution, with the right to life as the fundamental right that has been breached. 71 It maintained that although the Government by its own survey identified factories and industrial units that created ecological imbalance due to discharge of various industrial wastes into the air and water bodies, it has failed to implement the decision taken in the light of the survey. This, BELA contended, violated the Government’s statutory duties. 72 The court agreed. In another case, filed in connection with the failure of the government to seal tube-wells that were contaminated with arsenic, the Appellate Division of the Supreme Court recognised the connection between environmental pollution and the violation of the right to life, as well as the need to improve the natural and man-made environment with a view to protecting this right. In this case, Md 67 Ibid. at [44]. 68 Ibid. at [55]. 69 Ibid. at [102]. 70 Industrial Pollution Case, supra note 9 at [53]. 71 Ibid. at [13] and [14]. 72 Ibid. at [18]. 16 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM Tafazzul Islam, J., citing the decision of the Indian Supreme Court in the Virender Gaur v. State of Haryana, 73 observed that: [H]ygienic environment is an integral facet of right to healthy life, and it will be impossible to live with human dignity without a humane and healthy environmental protection. Therefore, it has now become a matter of grave concern for human existence. Promoting environment protection implies maintenance of environment as a whole comprising the man-made and natural environment. Therefore, there is a constitutional imperative of the State government and the municipalities not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect, and improve both the man-made and the natural environment. 74 Therefore, beginning with the radiated milk case, legal activism has facilitated the recognition of the human right to a decent environment in Bangladesh. The Supreme Court interpreted the fundamental right to life liberally to include the right to a decent environment by accepting the views of activist lawyers. While the reading of the right to life to include decent environment is hardly a novel construction, having been used in India before now, for example, it is not an incontrovertible approach. Nonetheless, it may be considered vital to environmental protection in a jurisdiction like Bangladesh. 1. The Complexities of Recognising the Right to a Decent Environment by Extending the Ambit of Right to Life Some commentators have highlighted the difficulties inherent in the postulation of a substantive right to a decent environment. For example, Boyle highlighted some of the objections to this approach. He notes that “definitional problems are inherent in any attempt to postulate environmental rights in qualitative terms.” 75 The terms satisfactory, decent, viable, or healthy environment may be incapable of substantive definition. The approach by the courts of Bangladesh has not only upheld such a right, but did so by reading the right into an existing right. Regarding the correct ambit of “right to life”, the overall scheme of international human rights law may not be said to have countenanced this interpretation. Most of the instruments have separate provisions for 73 [2] SCC 577 (1995) at [7]. 74 Rabia Bhuiyan, MP v Ministry of LGRD and others, 59 DLR (AD) 176 (2007) at [25]. 75 A. Boyle, “The Role of International Human Rights Law in the Protection of the Environment” in A. Boyle & M. Anderson, eds., Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996) at 50. 17 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM health/standard of living/environment and the right to life. 76 For the Covenants, the right of everyone to the highest attainable standard of physical and mental health through, inter alia, the improvement of all aspects of environmental and industrial hygiene is found in the International Covenant on Economic Social and Cultural Rights(ICESCR), Article 12 (2) (a). 77 The right to life is found in the International Covenant on Civil and Political Rights (ICCPR), Article 6. The United Nations negotiations by which these rights are provided for under separate instruments have implementation consequences. ICCPR rights are slated for immediate implementation, while ICESCR rights are intended to be implemented progressively in keeping with available resources. 78 Both Covenants were adopted at the same time, and different rights were assigned to each according to how the member States agreed they were to be implemented. Furthermore, in interpreting the right to life in Article 6 of the ICCPR, the Human Rights Committee (HRC) did not countenance environmental protection, speaking instead of killings, deprivation of life, and wars. 79 Nevertheless, it would be quite difficult to argue that the judicial decisions requiring the sealing of tube wells contaminated with arsenic and preventing the distribution of milk tainted with unacceptable levels of radiation, as seen in the above cases, does not protect the right to life. However, when it comes to the discharge of various industrial wastes into the air and water bodies, as also seen in one of the above cases, it becomes questionable as to whether the right to be protected from such pollution quite reaches the threshold of a non-derogable right. According to the HRC, the right to life is “the supreme right from which no derogation is permitted even in times of public emergency.” 80 This is more so given that there may be real technical and/or financial constraints to the enforcement of adequate pollution standards. In short, the reinterpretation of the right to life to include the right to a decent environment will not always be a perfect fit; it would sometimes lead to open-ended obligations that would inordinately stretch state resources, particularly in a developing country like Bangladesh. However, for the purposes of the present paper, it must be ascertained whether it was necessary to couch the claim for a decent environment 76 See e.g., UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III): provides for the right to life under Article 3 and the right to a standard of living adequate for health and wellbeing in Article 25. 77 International Covenant on Economic Social and Cultural Rights, 1966 (ICESCR), 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), Art. 12. 78 See Arts. 2 ICCPR, 1966 and ICESCR, 1966. 79 CCPR, CCPR General Comment No. 6 The Right to Life, 30 April 1982, online: <http://www.unhchr. ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3> (last accessed 28 April 2009). 80 Ibid., para. 1. 18 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM in the language of rights and, if so, whether the right to life was the only viable option. Bangladesh is a party to most of the major international environmental conventions. 81 However, the country is very slow in enacting domestic laws to implement the treaties. Accordingly, the presence of a social movement for environmental justice is not surprising. It is equally unsurprising that the activists chose to frame their claims in the language of rights, because traditionally, the language of rights have proved effective in rallying people to social movement causes around the world. According to McCann, an acknowledged manifestation of legal mobilisation in reform politics is its contribution to movement building. This building process is made up of two related aspects: the development of an agenda of rights-based claims, and mass constituent activation and organisation based on the rights claims. 82 Citing Elizabeth Schneider, McCann noted that agenda building around particular rights claims can emerge in a number of ways, including by exploiting the conflict between settled rights claims and practices that violate those rights, by exploiting contradictions within discursive logics of rights, or by developing logical extensions or new applications of already settled rights claims. 83 The extent of the contribution of the establishment of the right to a decent environment to the building of the environmental movement in Bangladesh, and some of the conditions that would have informed litigation as a movement strategy are explored below. However, at this juncture, it suffices to posit that the activists actually developed their rights-based claim by insisting on a logical extension to the right to life. Given the difficulties associated with a substantive right to a decent environment and the shortcoming of retrofitting the right to life to accommodate environmental claims, did the activists have options other than extending the meaning of the right to life? As will be seen below, the standing of the activists to bring environmental claims on behalf of people who are unable to represent themselves was contingent on there having been a breach of a fundamental right. Part III of the Constitution of Bangladesh does not contain any environmental rights; thus, the right to life would seem to be the only option with a chance of success, particularly in light of the successful extension of its ambit to include environmental claims in India. 84 Therefore, it would seem that the 81 Department of Environment, List of Environment Related International Conventions, Protocols, Treaties Signed/Ratified by Bangladesh, online: <http://www.doe-bd.org/agreement.html> (last accessed 28 April 2009). 82 M. McCann, supra note 29 at 10. 83 Ibid. at 10–11. 84 See generally; Damodhar Rao v. Municipal Corporation, Hyderabad (AIR 1987 AP 170); L. K. Koolwal v. State of Rajasthan (AIR 1988 Raj 2); V. Lakshmipathy v. State of Karnataka (AIR 1992 Kant 57); Chetriya Pardushan Mukti Sangarsh Samiti v. State of UP (AIR 1990 SC 2060); 19 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM activists had few options if they were to pursue a litigation strategy. Whether or not the status quo should be maintained in this regard is a different question altogether. Without doubt, it would be more desirable for any jurisdiction to develop laws, policies, and an enforcement climate that upheld wholesome environmental protection beyond court-mediated settlements. In light of this, litigation as a movement strategy will also be explored below. 85 First, however, the following subsection will discuss how the activists achieved locus standi and sought to incorporate emerging international environmental principles into the jurisprudence of Bangladeshi courts. B. Locus Standi As is the case in many other jurisdictions, one of the initial problems encountered by the environmental legal activists was that of locus standi. The surmounting of this problem represents one of the strongest contributions of the environmental legal activists to the cause of environmental justice in Bangladesh. In the FAP-20 Case 86 discussed above, the Appellate Division of the Supreme Court paved the way for locus standi for environmental activists and other civil society organisations. It interpreted the constitutional term, “person aggrieved”, to allow BELA, represented by Dr. Mohiuddin Farooque, to file a writ petition under Article 102 of the Constitution on behalf of the people affected by a government flood mitigation pilot project. The project is known as the Compartmentalisation Pilot Project (CPP) under the Flood Action Plan (FAP) Number 20. As noted above, the High Court Division summarily rejected BELA’s Writ Petition as it was of the opinion that neither Dr. Farooque nor BELA was directly affected by the project and, consequently, did not constitute a “person aggrieved”, under Article 102 of the Constitution. The restrictive interpretation of this constitutional provision by the High Court Division was overturned on appeal by the Appellate Division of the Supreme Court, granting standing to Dr. Farooque. On this issue, Mostafa Kamal, J., held that: [I]nterpreting the word ‘any person aggrieved’ meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be a stand taken against the Constitution. 87 Subhash Kumar v. State of Bihar (AIR 1991 SC 420); Virendra Gaur v. State of Haryana 2 SCC 577 (1995). 85 According to McCann, “Legally constituted ways of doing carry with them their own limitations, biases, and burdensome baggage.” McCann, supra note 29 at 6. 86 FAP 20 Case, supra note 63. 87 FAP 20 Case, supra note 63at [47]. 20 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM B.B. Roy Choudhury, J., went further, and held that: The expression ‘person aggrieved’ means not only any person who is personally aggrieved but also one whose heart bleeds for his less fortunate fellow beings for a wrong done by the Government or a local authority in not fulfilling its constitutional or statuary obligations. 88 BELA’s achievement in moving the courts to grant standing to an environmental civil society organisation for the first time is particularly significant considering the history of standing in Bangladeshi courts prior to the decision. Perhaps the first case in which the question of locus standi was addressed in Bangladesh is Kazi Moklesur Rahman v. Bangladesh and another. 89 In that case, the petitioner challenged the Delhi Treaty on the grounds that its terms involved the cession of part of the territory of Bangladesh. Although the writ petition was summarily dismissed by both the High Court Division and the Supreme Court on appeal, the Supreme Court observed that the appellant had the competency to claim a hearing. 90 The Supreme Court found that the fact that the appellant was not a resident of the region of Bangladesh affected by the treaty did not preclude his competency to bring the claim. This competency is based on the threat to the appellant’s fundamental freedom of movement in the entire territory of Bangladesh. The court referred to this as a constitutional issue of grave importance. 91 This liberal view notwithstanding, this case gives no authority for standing for a person whose own fundamental right has not been infringed, such as an environmental civil society organisation not claiming redress on its own behalf. Moreover, some other locus standi cases involving associations of persons that came after this case did not meet with success. In Bangladesh Sangbad Patra Parishad, 92 it was found that the petitioner could not maintain the petition in a representative capacity. This ruling was cited with approval in Dada Match Workers Union, 93 where it was held that a trade union cannot maintain an application under Article 102 of the Constitution asking relief for its members. The court observed that the petitioner was not espousing the cause of a downtrodden and deprived section of the society that cannot afford to enforce its fundamental rights. 88 Ibid. at [97]. 89 26 DLR (SC) 44 (1974). 90 Ibid. at [17] and [18]. 91 Ibid. at [18]. 92 Bangladesh Sangbadpatra Parishad (BSP) v Bangladesh 43 DLR (AD) 126 (1991) at [12]. 93 Dada Match Workers Union v Bangladesh 29 DLR (HCD) 188 (1977). 21 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM Nevertheless, in Retired Government Employees, 94 the High Court Division held that the petitioner was a “person aggrieved” within the meaning of Article 102 (1) and (2) of the Constitution. It found that the association had an interest in ventilating the common grievances of all its members. Again, this ruling is no authority for standing for a person whose own fundamental right has not been infringed. However, in the FAP 20 Case, just such a petitioner was granted standing, not least because BELA declined to let the extant legal position deter it from pursuing environmental justice. The fact that BELA was championing the cause of the downtrodden and the seriousness of the fundamental right to life, which encompasses the right to a decent environment, informed the court’s decision in that case. The judgment not only opened the door to writ petitions for safeguarding environmental rights, but also for ensuring all other fundamental rights. C. Progressive Development of Environmental Jurisprudence Law informs societal actions and cultures such that judicial pronouncements seem to be one way to introduce internationally recognised environmental principles into the national discourse in a jurisdiction where official endorsement and application is slow. A survey of decided cases in Bangladesh reveals that the activists shared this view, because one of the consequences of the sort of legal activism discussed in the foregoing paragraphs is the development of the environmental jurisprudence of Bangladesh, including, in particular, the recognition of emerging international environmental laws and norms in the domestic arena. The international environmental law norms that the activists have sought to implement in Bangladesh include Intergenerational Equity, the Polluter Pays Principle, and the Precautionary Principle. 95 These they sought to highlight through PIL as well as legislative advocacy; however, the response from the judiciary has been mixed at best. The Bangladesh Supreme Court mentioned intergenerational equity on some occasions but has generally not been supportive of the principle, though there are signs that this attitude is changing. However, the High Court Division adopted a slightly different view in a recently decided case filed by BAPA. In Bangladesh Paribesh Andolon and another v Bangladesh and others, Imman Ali, J., observed that the “right to have open space, parks, waterbodies, etc. are rights accruing to Nature and the Environment, which it is 94 Bangladesh Retired Government Employees Welfare Association v Bangladesh 46 DLR (HCD) 426 (1994) at [21]. 95 On implementation of these international environmental law principles in Bangladesh, see generally, Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh, supra note 59, at 333–73. 22 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM the bounden duty of the State to preserve for the sake of future generations. [emphasis added]” 96 This case equally heralded a new direction for environmental jurisprudence in Bangladesh. A group of environmental activists challenged the legality of construction of residences for the Speaker and Deputy Speaker within the National Assembly Area through alteration of the original plan of the National Assembly Complex. The complex is recognised as a masterpiece: the work of a globally renowned architect, Louis Isadore Kahn, which is regarded as one of the best monuments of International Architectural Modernism. The court prohibited any kind of change in the original plan of the complex.97 It directed the government to consider declaring the complex a National Heritage Site and to apply to UNESCO to declare it a World Heritage Site in order to protect it from further defacement. 98 This judgement could result in the application of the terms of the World Cultural and Natural Heritage Convention 99 in Bangladesh, and perhaps pave the way for its implementation in the country. The Supreme Court also indirectly recognised the “Precautionary Principle” when it recognised the rights of potential consumers in the Radiated Milk Case. 100 Additionally, in one of the more recent cases filed by BELA, the Supreme Court directed government authorities to make necessary rules and regulations so that no hazardous ships can enter the territorial waters of Bangladesh for breaking purposes. It reasoned that the breaking of ships with hazardous substances may cause significant harm to the coastal and marine environment of the country. 101 This, indeed, is a tacit precautionary approach to environmental protection. Furthermore, in one of the writ petition cases now pending for further hearing in the High Court Division, government authorities were directed to undertake investigation to identify and measure the areas within a pristine island, Sonadia, where shrimp cultivation/forest clearing is taking place or has taken place. The government is also to list those who are involved in such cultivation/clearing and the enabling arrangements; assess, in monetary terms, the loss of forest resources for such individual shrimp cultivation/forest clearing; and 96 Bangladesh Paribesh Andolon and another v Bangladesh and others 58 DLR (HCD) 441 (2006) at [28]. 97 Ibid. at [29]. 98 Ibid. at [34]. 99 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972, 23 November 1972, 1037 UNTS 151 (entered into force 15 December 1975). 100 Radiated Milk Case, supra note 61. See Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh, supra note 59, at 357–58. 101 Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 3916 of 2006, judgment delivered on 6 July 2006, unreported (hereinafter MT Alfaship Case) at 4. 23 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM submit a report to the court within two months. 102 The activists’ hope is that the court will apply the polluter pays principle. In yet another Writ Petition, also related to commercial shrimp cultivation, the High Court Division issued a Rule Nisi, calling upon the respondents to show cause as to why they should not be directed to compensate the affected people for the loss suffered by them due to the flow of saline water over their lands. 103 The activists also hope that the Supreme Court would consider these pending cases from a different viewpoint by positively responding to their arguments and, thereby, play an instrumental role in implementing emerging international environmental law norms in Bangladesh. While intergenerational equity, the precautionary principle, and the polluter pays principle may not be said to have become firmly established legal norms in Bangladesh, these dicta represent important strides in the right direction. III. WHY LITIGATION This part of the paper considers not only why litigation was considered viable in Bangladesh but also why it was successful. The theories considered apply by implication to other countries that bear certain similarities to Bangladesh. Some legal mobilisation theorists take the view that it is the direct effect (i.e., the short- term remedial reliefs) of formal legal action that motivates the choice of litigation as a strategy. 104 However, McCann urges an approach to legal mobilisation that also considers the indirect effects of official legal action on social struggles. These may include “catalysing movement building efforts, generating public support for new rights claims, or providing pressure to supplement other political tactics.” 105 In addition to the agenda development already discussed above (section II(A)(1)), forms of constituent activation discussed by McCann include publicity, rights consciousness, and political identity. 106 In Bangladesh, some of the cases discussed above attracted extensive media attention, most of which was positive. Therefore, it is not surprising that environmental questions have gained increased prominence in the national discourse. While it is difficult to measure the overall effect of the cases on mass constituent activation and the growth of the environmental movements, signs of these are available. BELA, for one, has grown from a few activists to a staff of nearly 60 people in six different offices around the country. The publicity 102 Bangladesh Environmental Lawyers Association (BELA) v. Ministry of Land and others, Writ Petition no. 4286 of 2003. 103 Gaurang Proshad Roy and Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 5732 of 2005. 104 M. McCann, supra note 29 at 8. 105 Ibid. 106 Ibid. at 11–15. 24 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM spawned by the successful cases and the various awards bestowed on BELA and its leaders 107 have arguably added a layer of legitimacy to the environmental cause. The high success rate of the litigations also adds some persuasiveness or pressure to supplement other political tactics. Thus, legal activism yields not only direct results in terms of court ordered reliefs, but also indirect effects that support other movement strategies. Given the networking amongst the social movement organisation in Bangladesh, it is believed that these effects are felt to varying degrees in other organisations that are not directly involved in litigation. The foregoing throws some light on the advantages of litigation as a social movement strategy; however, it fails to fully answer the questions of why the activists considered litigation an option in the first place and why it has had the measure of success explained above. Some social movement scholars have developed theories that help outline the conditions that inform the choice of litigation from a social movement’s repertoire of actions. McCann outlined two of these theories: resource mobilisation and structural opportunities. 108 A. Resource Mobilisation According to McCann, scholars have a wide range of approaches to resource mobilisation, but they tend to elevate two types of concerns. “One is the focus on a pre-existing core of activist leaders who serve as the primary ‘agents of rights mobilisation’”. 109 Here, an existing core of activists may use litigation to mobilise a mass constituency. A second category of resources “includes various pre- existing organisational ties among mobilizable constituencies.” 110 Here, the theory is that organisations that are able to network with others on whom they can depend for resources such as personnel and money are more likely than previously unaffiliated persons to succeed in rights-oriented actions. The professional and educational backgrounds of social movement organisation participants form part of the resources available to an organisation, according to Hilson. Of interest to present purposes, he notes, “litigation is also only likely to be adopted as a strategy where an individual within an SMO [Social Movement Organisation] or its network has direct experience of the law.” 111 These theories are certainly borne out by the legal mobilisation story of Bangladesh. BELA was established in 1992 with Dr. Mohiuddin Farooque (1954– 107 In 2003, BELA became a laureate of the UNEP Global 500 Role of Honour, See UNEP, Adult Award Winner in 2003, online: <http://www.global500.org/ViewLaureate.asp?ID=724> (last accessed 9 May 2009. 108 McCann, supra note 29 at 18. 109 Ibid. 110 Ibid. 111 C. Hilson, “New Social Movements: the Role of Legal Opportunity” (2002) 9 Journal of European Public Policy 238 at 240–241. 25 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM 1997) as its founder and executive director and a group of young lawyers as founding members. The first petition by a national NGO with environmental protection consequences was filed by BELA in 1994. 112 From the very beginning, BELA has been a member of the Coalition of Environmental NGOs (CEN) in Bangladesh. 113 CEN is a loose coalition of environmental NGOs involving both lawyer- and non-lawyer-led NGOs. While CEN may not be said to be very active, it is likely that just the sense of belonging to such an umbrella organisation would, at the very least, act as moral support for emerging organisations. It is also likely that, at inception, BELA had encouragement and ideas from fellow members. In any case, it is clear that BELA was funded by pre-existing organisations. The Asia Foundation, for example, intimates that it had a meeting with Dr. Farooque in the spring of 1993 in which the details of its first grant to BELA was shaped. 114 This was before BELA filed its first petition. 115 In sum, the availability of resources is part of the reason that litigation was chosen in Bangladesh, and it played no small role in its relative success. B. Structural Opportunity In McCann’s view, structural opportunities pertain to changes in social relations experienced over time by particular groups of citizens. These could be changes related to economic depression, work roles, or new forms of state control that bring new forms of hardship and oppression. Such changes may also unsettle expectations and open new vistas of perceived opportunity or sense of entitlement. One shortcoming in this view is that it relies heavily on some of the “classical theories of the 1960s and early 1970s [which] emphasized the role of discontent or grievances in explaining the emergence of social movements”. 116 Some theorists have deemphasised this view. McCarthy and Zald, for example, pointed to some empirical work that casts doubt on the assumption of a close link 112 Dr. Mohiuddin Farooque v. Election Commission and others, Writ Petition No. 186/1994 (Nuisance during Election Campaign) 113 BELA also relates with international alliances like IUCN-the World Conservation Union, Friends of the Earth International and Environmental Law Alliance Worldwide (E-LAW). 114 K. McQuay & S. Kabir, “Reflecting on Rizwana Hasan’s Goldman environmental Prize”, online: <http://asiafoundation.org/in-asia/2009/04/22/reflecting-on-rizwana-hasans-goldman- environmental-prize/> (last accessed 1 May 2009). 115 To date, BELA has received financial assistance from a number of organisations including the Government of Bangladesh, Canadian International Development Agency, United Nations Development Programme and Manusher Jonno Foundation. 116 Hilson, “New Social Movements: the Role of Legal Opportunity”, supra note 111, at 240. 26 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM between preexisting discontent and generalised beliefs in the rise of social movement phenomena. 117 Without doubt, legal mobilisation could be precipitated by previously unexploited opportunity that has always been there. In this regard, a more general theory of political opportunity is more suitable to analysing the choice of litigation in Bangladesh. The approach taken by Chris Hilson in discussing “political opportunity” is particularly helpful for our purposes. Hilson drew attention to the structural and contingent components of opportunity. Structural opportunity refers to the structural openness or “closedness” of a political system, while contingent opportunity refers to the contingent receptiveness of political elites to collective action. 118 In this respect, attention must be paid to not only the openness in terms of access to the administration but also to the political receptivity to the claims being made. Hilson further noted that “litigation or protest may arise from lack of success in conventional political arena[s]”; access, though necessary, is not sufficient for success, as political elites must also be receptive to the claims being made and be willing to change policy accordingly. 119 In the Bangladesh experience, BELA cites environmental degradation through “faulty policy priorities and approaches and of course poor governance that also accounts for non-implementation of environmental laws” 120 as the backdrop for its emergence as a legal advocacy group. As noted above, some environmental protection NGOs, such as BCAS, preceded BELA; nevertheless, BELA still claimed faulty policy priorities and approaches at its inception. This indicates a measure of lack of success of the environmental movement in the conventional political arena. Furthermore, Hilson demonstrated a distinction between the broader political opportunity and the narrower legal opportunity, which theorists are wont to subsume under political opportunity. Legal opportunity relates to opportunities in court-based litigation strategy. The structural side of legal opportunity refers to the more stable features of a system, such as access to justice and standing, while the key contingent feature is judicial receptivity to policy arguments. 121 Contingent legal opportunity perhaps accounts for the actual courtroom successes of the legal activists in Bangladesh, as seen in the cases discussed above. It touches on the judicial activism of the Bangladeshi bench and the receptiveness of the judges to the claims of the activists. This helps account for not only the initial 117 J. McCarthy & M. Zald, “Resource Mobilization and Social Movement: A Partial Theory” in J. Goodwin & J. Jasper, eds., Social Movements (London: Routledge, 2007) at 33. 118 Hilson, “New Social Movements: the Role of Legal Opportunity”, supra note 111, at 242. 119 Ibid. 120 The Access Imitative, BELA, online: <http://www.accessinitiative.org/partner/bela> (last accessed 4 November 2012). 121 Hilson, “New Social Movements: the Role of Legal Opportunity”, supra note 111, at 243. 27 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM choice and success of the litigation strategy, but also for its continued employment in the movement. Judicial activism is one of those terms that defy easy definition, and this paper is not well positioned to explore the concept in any extensive manner. However, placing reliance on parts of the multidimensional model proffered by Cohen and Kremnitzer, it is not difficult to see that the major decisions that the Bangladesh legal activists would consider successful involved some judicial activism. Cohen and Kremnitzer had three visions of judicial activism, one of which hinges on the traditional vision of the judiciary. Although this vision does not fully address the various ways in which courts can impact upon society, it suffices for the purposes of the present paper. Under this approach, “activist courts are activist when they change the law, overstep their role of dispute resolution, and decide on policy and other broad social questions.” 122 Cohen and Kremnitzer discussed twelve parameters against which particular decisions may be measured to determine the level of activism of a court. Some of these indicate a measure of activism in the cases discussed above. For example, the second of the parameters concerns interpretation and holds that a court that interprets a legal text in possible contradiction with assumed original intent or its linguistic meaning is more activist than one that sticks to the original meaning. 123 As noted above, the meaning the courts assigned to the “right to life” is not one that is countenanced in the scheme of international human rights law. It is also unlikely that the framers of the Constitution had that meaning in mind. According to the fifth parameter, courts that are ready to jump threshold hurdles such as standing are generally more activist. 124 This, again, is exactly the line the courts chose to tow in response to the arguments of the legal activists on standing for environmental civil society organisations in Bangladesh. Finally, according to the ninth parameter, a court that extensively relies on foreign arrangements that are not binding in the domestic sphere would be more activists than one that does not. On the face of the cases discussed above the courts overtly relied on the outcome in the Indian courts only in a few of the cases. However, there is no gainsaying the fact that Indian jurisprudence influenced the receptiveness of the Bangladeshi judges to the environmental claims of the activists on the right to life and standing, not least because of the similarity in the outcomes. All these amount to ripe legal opportunity; an activist judiciary that is amenable to particular rights claims is always a legal opportunity for any social movement that champions such claims. This explains the continued use of litigation by the environmental social movement in Bangladesh. 122 M. Cohen & M. Kremnitzer, “Judicial Activism: A Multidimensional Model” (2005) 18 Can. J.L. & Jur. 333 at 336. 123 Ibid. at 341. 124 Ibid. at 342. 28 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM The foregoing notwithstanding, the use of litigation as a social movement strategy has limitations, and it is to these we turn in the following section. IV. THE LIMITS OF LITIGATION AS A MOVEMENT STRATEGY A. To PIL or Not to PIL So far, the paper has discussed the use of PIL as a social movement strategy in Bangladesh and considered the reason for the choice of litigation and why it has been successful. However, the choice of litigation as a movement strategy does seem to bring limitations. As noted above, McCann acknowledged that “litigation alone rarely advances significant social change.” 125 However, he also recognised that legal rights advocacy can, in some circumstances, provide a useful resource for social movement building, as has been demonstrated above. Regarding the use of litigation in environmental activism, some commentators have highlighted the shortcomings of PIL in particular, especially in India. 126 According to Rajamani, “[a]lthough the Court has done and continues to do exemplary work, the exercise of public interest environmental jurisdiction raises concerns with respect to access, participation, effectiveness and sustainability, concerns which need to be explored and addressed if the true promise of public interest jurisdiction is to be unleashed.” 127 In their article, The Delhi Pollution Case: the Supreme Court of India and the Limits of Judicial Power, Armin Rosencranz and Michael Jackson noted that The Supreme Court ruling to mandate the conversion of the Delhi bus fleet to CNG in M.C. Mehta v Union of India 128 was a well-informed and logical decision. Notwithstanding, they pointed to some disadvantages of the strong stance taken by the court in that case, and concluded that “the Court's action [mandating the conversion of the Delhi bus fleet to CNG] seems likely to impede capacity building in the pollution control agencies, and thereby to compromise the development of sustained environmental management in India.” 129 125 McCann, supra note 29 at 4. 126 See A. Rosencranz & M. Jackson, “The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power” (2003) 28 Colum. J. Envtl. L. 223. (Demonstrates with the Delhi Pollution case how litigation would not always provide long term environmental protection); L. Rajamani, “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability” (2007) 19 J. Envtl. L. 293. (Highlights the limitations and other concerns that arise from the exercise of public interest environmental jurisdiction in Indian courts). 127 Rajamani, “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability”, supra note 126 at 295–296. 128 S.C. Writ Pet. (Civil), M.C. Mehta v Union of India (1985) (No. 13029/1985). 129 A. Rosencranz & M. Jackson, “The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power”, supra note 126 at 253–254. 29 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM According to G.L. Peiris, “PIL represents a daring, and in some respects unique, response to a problem of unparalleled proportions. The character and degree of the challenge are related to societal conditions in the subcontinent, which pose the danger of significant alienation of a large section of the community from the values infusing the legal system.” However, the vigour and novelty of this judicial initiative have led to intractable dilemmas regarding the relationship between the judiciary and other organs of government. At the centre of the problem is the political accountability of the courts and, perhaps, the practicality of their leadership roles in the formulation and implementation of broad social policy. 130 In the body of this piece, Peiris referred to several heterodox features of PIL, including the tendency of the courts to get embroiled in the most controversial and divisive of policy issues; 131 detailed administrative adjudication; and fact-finding mechanisms including the appointment of committees of experts bestowed with extensive powers of discovery. 132 Some of these concerns are quite instructive and are briefly considered below regarding Bangladesh. A full consideration of the concerns is not possible in the present paper, so only brief comments are offered. Nevertheless, it should be noted from the outset that the paper considers that although a considerable amount of flexibility attaches to PIL in most developing-country jurisdictions, PIL as a procedure of litigation should not be viewed as insuperably problematic, nor should explored solutions include the abrogation of the procedure. This is particularly so when the entire gamut of PIL jurisdiction is considered, especially the human rights jurisdiction. Commentary on the exercise of PIL jurisdiction in India, for example, ranges from opposition to appreciation of the role of the court in achieving social justice. 133 Hence, the criticism outlined above notwithstanding, there is no shortage of extenuation commentaries on the exercise of PIL jurisdiction in India. For example, on the relegation of locus standi rules to allow PIL, Peiris observed that “[at] the core of the concern consistently shown by Indian courts for fostering PIL in the conditions of contemporary life in the subcontinent, is candid recognition that, in the absence of innovative mechanisms of this nature, substantive rights central to human dignity cannot but assume an illusory character in the eyes of large sections of the population.” 134 On the question of direct judicial involvement in controversial policy issues, including the 130 G.L. Peiris, “Public Interest Litigation in the Indian Subcontinent: Current Dimensions” (1991) 40 International and Comparative Law Quarterly 66 at 89. 131 Ibid. at 72. 132 Ibid. at 75–80. 133 Madhav Khosla, “Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate” (2009) 32 Hastings Int’l & Comp. L. Rev. 55 at 55–56. 134 Peiris, supra note 130 at 70. 30 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM preservation of the environment, the author explored the problem, noted some redeeming features, and opined that “[on] the whole, then, the assessment of priorities by Indian courts is empirical and shows sensitivity to contextual factors.” 135 On the question of fact-finding committees/commissions, Vijayashri Sripati noted that most of the petitioners in PIL cases were public-spirited individuals or organisations who, due to limited resources, found it onerous to establish or prove violations of rights by states. This was the impetus of the courts in forming the commissions to aid the litigants in the expensive task of fact finding. 136 In Bangladesh, PIL for environmental justice is principally a procedure engendered by the interplay of Articles102 and 32 of the Constitution. This makes PIL primarily a fundamental rights enforcement procedure, whereby certain stringent procedural hurdles are relaxed. Although barriers are somewhat more relaxed in PIL procedures, one is not to suppose that there are no other barriers to entry to the effect that frivolous actions would ensue. As seen in the FAP 20 Case, representation of those who cannot represent themselves would seem to be a pre-requisite. 137 Although standing has been gained for environmental civil society organisations, in his concurring judgment in the FAP-20 Case, Latifur Rahman, J., noted, “that any application filed by an individual, group of individuals, associations and social activists must be carefully scrutinized by the court itself to see as to whether the petitioner has got sufficient and genuine interest in the proceeding to focus a public wrong or public injury.” 138 The test of “sufficient and genuine interest”, therefore, still subsists in Bangladesh, notwithstanding the granting of standing to social groups. 139 Furthermore, from our discussion of resource mobilisation above, it is clear that not every organisation would be able to employ PIL as a movement strategy. In the light of the current enforcement climate for environmental laws and policies in Bangladesh, to argue against PIL in broad terms and recommend further procedural restriction of access to the courts would seem difficult to support. Nevertheless, some of the questions raised on the manner in which the courts have chosen to exercise their powers in PIL cases deserve further discussion as they relate to Bangladesh. In particular, the questions of access, participation, 135 Ibid. at 75. 136 Vijayashri Sripati, “Human Rights in India-Fifty Years after Independence” (1997) 26 Denver Journal of International Law and Policy 93 at 121. 137 FAP 20 Case, supra note 63, at [97]; Dada Match Workers Union, supra note 93. 138 FAP 20 Case, supra note 63 at [86]. 139 See also Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh, supra note 59, at 292: “As the Constitution [of Bangladesh] suggested the ‘aggrieved person’ test, the court is hesitant to ignore this test altogether. Rather, they have interpreted it within the framework of the ‘aggrieved person’ test with all the flavour of the ‘sufficient interest’ test.” 31 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM effectiveness and sustainability pointed out by Rajamani, and Armin Rosencranz and Michael Jackson, are pertinent. 1. Effectiveness Regarding effectiveness, Rajamani notes that “[a]lthough the Court’s environmental commitment is seldom challenged, its ability to devise effective solutions to the problems under consideration is often called into question.” 140 In the first place, given the other issues raised in that paper (such as sustainability) perhaps the courts should not go as far as devising solutions rather than reaching decisions that point administrators in the right direction. However, if the issue is whether the decisions have been effective in protecting the environment, one would have to consider the short term direct effects and reliefs in the decisions, and the long term indirect effects of the decisions. In Bangladesh, regarding the short-term reliefs and their implementation, the environmental legal activists have had mixed results. In some instances, they were successful in not only eliciting favourable court decisions, but also in securing positive responses from the government in the implementation of the judicial decisions. A good example is the Dhaka City Vehicular Pollution Case. 141 Dhaka, the capital of Bangladesh, is one of the most polluted cities in the world. Many vehicles in Dhaka city used leaded petroleum and contributed to the emission of lead-laced gases. To save the city dwellers from air pollution, BELA filed a writ petition for necessary direction to control vehicular air pollution in Dhaka City. In that case, the Supreme Court directed the government to, inter alia, phase out all existing two stroke three-wheeler vehicles, which were the most polluting vehicles, from Dhaka City by December, 2002. Although this was a difficult task, the government implemented the court direction. However, the implementation of this decision did not occasion the type of hardship and top- heavy court-mediated oversight discussed by Rajamani regarding the Delhi Vehicular pollution cases. “The government gave the three-wheeler owners many incentives and options and pushed them to the wall to accept these. For the most part, drivers were rehabilitated in some way or the other.” 142 However, this successful implementation outcome has not been replicated across the board. In many other cases, the decisions have not been properly implemented. Some of the projects that were successfully challenged by the activists were ultimately executed by the government. Some of these projects 140 Rajamani, “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability”, supra note 126, at 309. 141 Dhaka City Vehicular Pollution Case, supra note 53 at 36. 142 “Air Pollution”, The Daily Star (24 April 2009). 32 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM have engendered serious environmental harm. For example, the FAP-20 project referred to above was ultimately improperly executed in defiance of the judgment. In the judgment on merit in the FAP 20 Case, A.K. Badrul Huq, J., observed that “in implementing the project the respondents cannot with impunity violate the provisions of law. We are of the view that the FAP-20 project work should be executed in compliance with the requirements of law.” 143 Unfortunately, government authorities have not followed the relevant principles of the applicable laws. They violated the directions of the court in the judgment. The worst part of the execution of the project is that no compensation has been paid to the people affected by it. As a result, BELA filed another writ petition against different government authorities to assess the compensation for the “Project Affected People”. 144 In this writ petition, the High Court Division issued a Rule Nisi, calling upon several government authorities. 145 However, any compensation for the said Project Affected People is yet to be realised. This goes to show that although the legal activists have been successful in achieving the recognition of the human right to a healthy environment, the real fruits of this jurisprudential development are not always easily translated into reality in the lives of the people. The vulnerabilities of judicial activism have been magnified with the recent deadlock in the relocation of the leather goods and processing industry in an effort to stop massive environmental pollution. The leather-processing industry is one of the oldest industries in Bangladesh. It is mainly located on the banks of the Buriganga, one of the main rivers at the heart of the capital city of this country. Bangladesh has more than 200 leather goods and processing companies, and at least 178 of these are located in 50 acres of land on the banks of the Buriganga. 146 They process hides into finished leather using acids and chromium, producing roughly 20 million square metres of leather and leather goods each year. They account for an average of 1.5 per cent of the total exports of this country over the last three years. 147 The most important feature of this industry is the fact that it is the main water polluter in this country. None of the companies within this industry has an effluent management plant, and most of their 30,000 workers work in chemical- filled environments without the required protective equipment. It is notoriously 143 FAP 20 Judgment on Merit, supra note 9. 144 Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 1691 of 2001(hereinafter PAP Case). 145 BELA, “List of Public Interest Litigation”, online: <http://www.belabangla.org/ html/pil.htm>(last accessed 30 January 2009). 146 Satadal Sarkar, “When Will the Waste Flow in the Buriganga Stop?” The Prothom Alo (Dhaka) (10 November 2010). 147 Product-Wise and Region-Wise exports, the Ministry of Commerce of the Government of Bangladesh, online: <http://www. epb.gov.bd/?NoParameter&theme=default&Script=e xporttrend#Region> (last accessed 14 February 2011). 33 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM the most significant water polluter in Bangladesh: the leather industry alone pollutes 26 per cent of the total river water of Bangladesh. 148 People living near these tanneries are “exposed to higher morbidity and mortality compared to people living two to three kilometres away”. 149 A recent report shows that the leather goods and processing plants of different companies (particularly on the banks of the Buriganga) have dumped approximately 3,000 tons of liquid waste in the Buriganga. In effect, they have turned this river into a toxic dump by indiscriminately discharging their waste into it. 150 Given these circumstances, the government has decided to shift these manufacturing units to a 200-acre industrial zone near the capital city. Bangladesh Small and Cottage Industries Corporation (BSCIC) has developed this zone for these units at a cost of US$66.42 million, and has almost finalised the process for establishing a central effluent plant in this zone, at a cost of US$61.42 million. Nonetheless, this relocation is at a crossroads. In 2003, the High Court Division finally provided a guideline, which is mandatory for all residents of this country according to the constitution of Bangladesh, to facilitate the relocation. However, the industry owners and government authorities have failed to begin the move. 151 The court has repeatedly provided more time, but the relocation has not advanced. 152 This regulatory deadlock syndrome can be traced back to the notification of August 7, 1986, when the Ministry of Local Government, Rural Development and Cooperatives identified 903 industrial units of 14 sectors as polluters. It directed the Department of Environment, the Ministry of Environment and Forests and the Ministry of Industries to ensure appropriate pollution control measures were undertaken by these industries within three years. The notification also obliged these authorities to ensure that no new industry could be established without pollution-fighting devices. However, between 1986 and 1994, they failed to ensure that these industries undertook any suitable pollution control measures. In 1994, BELA filed a writ petition before the High Court Division of the Supreme Court of Bangladesh seeking relief against the indiscriminate pollution 148 Mohammad Golam Rasul, Faisal Islam & Mohammad Masud Kamal Khan, “Environmental Pollution Generated from Process industries in Bangladesh” (2006) 28(1) International Journal of Environment and Pollution 144. 149 A.K. Enamul Haque, “Human Health and Human Welfare Costs of Environmental Pollution from the Tanning Industry in Dhaka – An Environmental Impact Study” in Moinul islam Sharif & Khandaker Mainuddin, Country Case Study on Environmental Requirements for Leather and Footwear Export from Bangladesh (Dhaka: Bangladesh Centre for Advanced Studies, 2003) at 10. 150 Sharif & Mainuddin, ibid. at 9; for details and the source of this information, see Sarkar, “When Will the Waste Flow in the Buriganga Stop?”, supra note 146. 151 Anisur Rahman Khan, “Tanneries Relocation Move Hits Roadblock” The Independent (Dhaka) (21 July 2010). 152 Ibid.; Satadal Sarkar, “When Will the Waste Flow in the Buriganga Stop?”, supra note 146. 34 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM of air, water, soil and the environment by 903 industrial units. These units included tanneries; paper, pulp, and sugar mills; distilleries; as well as the iron and steel, fertiliser, insecticide and pesticide, chemical, cement, pharmaceutical, textile, rubber and plastic, tyre and tube and jute industries. 153 It was pled that, though the air and water of the major rivers of this country were being severely affected by these 903 units, the government organisations responsible had failed to tackle this damage to the ecological system. The petitioner, moreover, informed the court that the number of polluting units had risen to 1,176, according to the list prepared by the Department of Environment. In the first instance, the court issued a Rule Nisi to the respondents, including the Ministry of Local Government, Rural Development and Cooperatives, Ministry of Environment and Forest, Ministry of Industries and Department of Environment to show cause as to why they should not be directed to implement the decisions of the Government. After hearing all the parties, the Rule was made absolute. On July 15, 2001, the court directed the Director General of the Department of Environment to implement the decision to mitigate the pollution by the original 903 units within six months from the date of the judgment. The court directed to “report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court.” 154 To ensure the implementation of the court’s directions, it was further held that “it will be imperative on the part of the Director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995.” 155 Of these 903 industrial units, most are leather goods and processing companies. Of the 178 tanneries situated on the bank of Buriganga, 158 have been red-listed by the Department of Environment. 156 None of these companies has any kind of effluent plant, which has virtually transformed the Buriganga into a pool of septic water. 157 According to the environmental laws of Bangladesh, this situation is intolerable. BELA brought this issue before the High Court Division of the Supreme Court of Bangladesh and claimed directions for relocating these units from the bank of the Buriganga. 158 The court issued a Rule Nisi on March 3, 153 Industrial Pollution Case, supra note 9. 154 Ibid. A synopsis of this case is available at Bangladesh Environmental Lawyers association, “List of Selected Public interest Litigation (PIL) of BELA”, online: <http://www.belabangla.org/ pdf/pil.pdf> (last accessed 22 October 2011). 155 Ibid. 156 A.K. Enamul Haque, “Human Health and Human Welfare Costs of Environmental Pollution from the Tanning Industry in Dhaka—An Environmental Impact Study”, supra note 149 at 9, 10. 157 Anisur Rahman Khan, “Tanneries Relocation Move Hits Roadblock” The Independent (Dhaka) (21 July 2010). 158 Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and Others, Writ Petition No. 1430 of 2003. 35 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM 2003, and called upon the seven government agencies and two tannery associations as respondents. The court summoned the Secretaries of the Ministries of Industries and Commerce and Environment and Forest; the Director General and the Director of the Department of Environment; a member of the Planning Commission; and the chairmen of RAJUK (the capital city development authority), BSCIC, and the Tanners Association. They were asked to show cause as to why they should not be directed to relocate the tanneries from the city to a suitable location, as contemplated in the Master Plan prepared under the Town Improvement Act 1953, within 18 months from the date of judgment. The court directed them to ensure that adequate pollution-fighting devices were developed in the new location or site as required under the Environment Conservation Act 1995 and the Factories Act 1965. They were also directed to notify the court regarding the process of the relocation of the tanneries and submit a report in this regard to the court within six months. This petition is still pending before the court. While failing to treat these tanneries according to the provisions mentioned in the Act and other related laws, the government is trying to relocate them to a well-planned leather industry zone near the city; an industrial zone has been developed with adequate industrial plots for them. Many of them have obtained their plots in the new industrial zone where the construction of an effluent plant is underway. Nonetheless, the tanneries are not interested in moving from the banks of the Buriganga. They maintain that they will not consider relocating until the government (a) pays them $155.57 million as compensation, (b) discharges them from the debt they owe to the commercial banks, (c) provides them loans at a low interest rate, and (d) ensures that the government will bear the cost of maintaining the effluent plant. In 2006, a committee, formed by the secretaries of the government ministries concerned, suggested the government pay $33.60 million to the tanneries as compensation. 159 Both parties are standing their ground with respect to their remaining demands. The PIL filed by BELA is still pending before the court. According to Article 112 of the Constitution of Bangladesh, all executive and judicial agencies are obliged to carry out the directions of the High Court Division of the Supreme Court of Bangladesh. Unfortunately, these respondents have not been able to carry out the court’s directions; they have sought more time from the court, and the court has allowed them time for the ends of justice. Meanwhile, the Buriganga has been becoming increasingly toxic, and the government is losing its investment in preparing a modern leather industrial zone. At this time, the respondents have extended their time to carry out the court’s directions, and nobody knows when they will reach a concrete solution. 159 Abul Hasnat & Suvongkor Kormokar, “Leather Industry Passing a Critical Situation” The Prothom Alo (5 November 2011). 36 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM Long-term indirect effects of court decisions are more difficult to measure. However, the recognition, publicity, and impetus that these decisions have given to the legal activists as intimated above are all part of the indirect effect; they amount to political capital that could supplement other movement strategies outside the courts. Beyond these, there are other signs of long-term effectiveness of decided cases, even in cases with adverse short-term outcomes. For example, in BELA v. Bangladesh (Modhumoti Model Town Case), 160 the petitioner challenged the legality of a land development project that interfered with natural drainage by making changes to the flood flow/sub-flood flow zones near Dhaka City contrary to the Dhaka Metropolitan Master Plan. However, the court ruled that although the project is illegal, the interest of the third party purchasers of plots of land in Modhumoti Model Town should be protected as they are bona fide purchasers for value without notice. 161 In the short run, this was not the complete positive outcome that BELA hoped for. However, in 2008, the government announced that it was going to amend rules to stop unplanned urbanisation across the country. The first rule for private housing projects that resulted from the Modhumoti Model Town Case only applied to the Rajdhani Unnayan Kartripakkha (Rajuk) areas. 162 2. Sustainability According to Rajamani, in India, the phenomenon of endless judicial oversight in public interest cases is not sustainable for several reasons. It takes up the time of the court and hampers the functioning of the judicial system. The courts are able to cope with the time constraints in part by appointing committees whose ad hoc nature may lead to inconsistencies and possible inequities. Furthermore, such lengthy court oversight leads to reactive instead of proactive administration. It also creates an unhealthy and tension-ridden relationship of dependence and places tremendous strain on government resources. 163 As noted above, in the context of the Delhi Pollution Case, Rosencranz and Jackson pointed out the likelihood of the strong stance of the Supreme Court leading to impediment of capacity building in the pollution control agencies and compromise of the development of sustained environmental management in India. 164 160 Bangladesh Environment Lawyers Association (BELA) v. Bangladesh, Represented by the Secretary, Ministry of Housing and Public Works and others, Writ Petition No. 4604 of 2004 (Judgment on 27 July 2005, unreported) (Modhumoti Model Town Case). 161 Ibid. 162 “Amended Rules Soon to Stop Unplanned Urbanisation” The Daily Star (21 July 2008). 163 Rajamani, “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability”, supra note 126, at 315–316. 164 A. Rosencranz & M. Jackson, “The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power”, supra note 126. 37 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM The foregoing concerns are increasingly applicable to Bangladesh, where the Supreme Court has a tendency to follow its Indian counterpart in environmental cases. Lawyers in Bangladesh frequently refer to Indian judgments, and the judges also cite Indian cases in their judgments, as is evident in some of the cases discussed in this paper. Recently, like the Indian Supreme Court, Bangladeshi courts have started maintaining lengthy oversight of the implementation of their decisions. For example, in BELA v. Bangladesh (MT Enterprise Case), the Supreme Court issued the following order: The Government is directed to set up a High Level Technical Committee comprising representatives from Ministry/Department of Shipping, the Ministry/Department of Environment, Ministry of Labour and Manpower; Retired Naval officers; Academicians/Experts in the field of Marine Engineering and Marine Biology; Specialist in the field of Environment, Science and Ecology, [and] Hazardous Waste Management; and relevant NGOs, such as BELA. 165 Similarly, in Rabia Bhuiyan, MP v. Ministry of LGRD and others, the Appellate Division of the Supreme Court maintained lengthy oversight of its decision requiring, inter alia, a yearly report on steps taken to implement the relevant policy. 166 In adopting this measure, the court relied on two decisions of the Supreme Court of India. These were MC Mehta v. Union of India 167 (the Delhi Pollution Case), where the court required the submission of regular reports by a committee it set up, and the ruling of the High Court Division in the Dhaka City Vehicular Pollution Case, 168 where the court deemed the case pending for the purpose of monitoring and required six-monthly reports. In short, few will doubt that litigation does not yield long-term social change. Notwithstanding, some social movement theories indicate that there is a danger of the continued employment of litigation even after it has outlived its usefulness as a strategy or when other strategies would be more effective. The transformation of social movement organisation may take place in several ways, including by “organisational maintenance”. In this phenomenon, “the primary activity of the organization becomes the maintenance of membership, funds, and other requirements of organizational existence.” 169 The danger of this sort of 165 Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh, Represented by the Secretary, Ministry of Shipping and others (Unreported, order dated 05 March 2009 and 17 March 2009), online: <http://www.elaw.org/node/3747> (last accessed 9 May 2009) at [9]. 166 Rabia Bhuiyan, MP v. Ministry of LGRD and others, 55 DLR (AD) 184 (2007) at [29]. 167 6 SCC 12 1999 at [2.4]. 168 Dhaka City Vehicular Pollution Case, supra note 53 at [15]. 169 M. Zald & R. Ash, “Social Movement Organizations: Growth, Decay and Change” in J. Goodwin and J. Jasper, eds., Social Movements, supra note 117 at 76. 38 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM transformation is all too real when an organisation such as BELA becomes defined by success in high profile cases with the attendant recognition and publicity. In such cases, the temptation to maintain the status quo is high. The word of caution here is that organisational maintenance should not be allowed to supplant the original environmental pursuits. 3. Access and Participation Rajamani also argued that there is a tremendous scope for value preferences in PILs because of the characteristic procedural flexibility, collaborative approach, judicially supervised interim orders, and the forward-looking reliefs. The courts are thus perceived as middle class intellectuals that are more receptive to others of their ilk. This perception, argues Rajamani, is in itself deeply restrictive for participation. Furthermore, litigation cost factors contrive to alienate the poor from the portals of the courts, such that PILs are filed on behalf of the poor and not by them. 170 Room for biases and value preferences characteristic of whatever echelon of the society the judges belong to would seem to be inevitable, with the procedural flexibility that continues to be a feature of PILs in India. There are also signs that Bangladeshi courts are not immune to this charge. In reading some of the judgements cited in this paper, one could not but notice some instances in which the judges seem not to be particularly fettered by extant limitations of the law. For example, in the decision of the Appellate Division to maintain administrative oversight of its ruling in Rabia Bhuiyan, MP v. Ministry of LGRD and others, there was no analysis by the court to provide some basis in law for such a novel role for the courts. The court chose instead to place reliance on the fact that the Indian Supreme Court had done the same thing. In the same vein, the courts are likely to be flexible in other aspects of their exercise of PIL jurisdiction, such that the scope for discretion is enlarged. The degree to which the blame for this shortcoming should be apportioned between the judges, who reach the decisions, and the legal activists, who frame the claims, is difficult to determine without further research. However, both can play a role in attenuating this feature of PIL in Bangladesh. The judges can self- restrain, while the activists should, in framing their claims, bear in mind that there is much to be gained from the continued objectivity of the judiciary. Perhaps the activists in Bangladesh have an opportunity to play a role here because there are fewer organisations engaged in PIL and some of the organisations have initiated educational programs that include environmental training for judges. Having said this, in seeking to reform this area of law, regard 170 Ibid. at 302–303. 39 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM must also be paid to some of the plausible raison d'être of the flexibility that attaches to PIL, as adumbrated in some of the extenuation commentaries above. Care must also be taken to not overemphasise this limitation, because different forms of biases and value preferences are equally true of the judiciary in most countries on various issues, whether or not the environment is in issue, and whether or not the courts countenance PILs. Furthermore, for Bangladesh, anybody familiar with the state of the poor would agree that there are real obstacles to the poor representing themselves. The poor have neither the financial resources nor the technical knowhow for self- representation. Indeed, understanding the issues at stake in some environmental matters would usually be an uphill task for the general populace. One can only imagine the difficulty that would be involved in explaining the health issues in the Radiated Milk Case to the underprivileged. Most of the poor would ordinarily view the tainted product as affordable milk. The same is true regarding the ship breaking and shrimp cultivation cases; many would understandably see the impugned activities as sources of income and nothing more because the dangers and adverse effects are not immediately apparent. These limitations leave representative litigation as one of the few viable options. Having said this, it is equally true that it is a failure of Bangladeshi environmental legal activism that poor people seem to have a minimal role in the decision-making process. A recent incident buttresses this point. On February 22, 2010, newspaper reports indicated that workers of shipbreaking yards “staged a protest against a new national import policy that requires all vessels destined for recycling in Chittagong to carry a pre-cleaning certificate.” 171 This policy is a direct result of the MT Enterprise Case referred to above. 172 However, there is an allegation that this kind of protests is fake and mostly carried out by people hired by the shipbreaking industry owners. 173 Notwithstanding, whereas this protest demonstrates that segments of the society were unhappy with the decision, it would be naive to conclude that this is the sole or predominant view on the matter, because there are other views. In a video clip on a webpage in the website of the Goldman Prize, the Chief Executive of BELA contends that ship breaking is a trade of hazardous waste in disguise, since the ships are not pre-cleaned before being sent to Bangladesh and as such release toxic wastes into the coastal area. She informed that they received reports 171 Liz McCarthy, “Bangladesh Shipbreaking Protest Slammed as Fake” Lloyed's List, online: <http://www.shipbreakingbd.info/newspaper_news/Lloyed_List_23_02_10.html> (last accessed 17 December 2010). 172 Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh, Represented by the Secretary, Ministry of Shipping and others, supra note 165. 173 McCarthy, supra note 171. 40 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM of deaths in the shipbreaking yards at least once a month. 174 She also notes, “[this] is polluting the coastal environment, affecting the fishermen, killing so many labourers so on that ground we move against this very hazardous operation of the industry.” 175 The clip also featured a young woman who had lost her husband in a ship-breaking yard accident, and another man who claims to have been disabled due to an accident sustained in one of the yards. BELA selects the cases it files from hundreds that are reported to it with requests for redress. 176 Hence, although the underprivileged would in some instances be adversely affected by some of the decisions, it is still a segment of that same constituency that seems to animate BELA’s litigation activities, and the same may be said for at least some of the cases filed by the other legal activist organisations. Using the shipbreaking cases as an example, the question then is how to balance the right to life of the workers and the health of the people in the coastal area against the right of all the workers in the ship breaking and ancillary industries to a means of livelihood. Perhaps a balance could be struck if litigation is used sparingly as a last resort, and even then with extensive consultation with the stakeholders and assessment of the impact of the anticipated reliefs on the less privileged. Imaginative reliefs could then be sought with emphasis on how to reduce the negative impact of possible rulings on those dependent on the impugned industry or activity. Perhaps the courts could also encourage out-of- court settlements with a view to encouraging the leaders in each industry to contribute to phased implementation and the rehabilitation of those who would be affected. The possibility of an adverse ruling should encourage all to negotiate a settlement outside the courts. The main justification of PIL in Bangladesh is, for the most part, that the poor and underprivileged are unable to represent themselves. With appropriate 174 The Goldman Environmental Prize, “Syeda Rizwana Hasan”, online: <http://goldmanprize.org/2009/asia> (last accessed 28 June 2009). 175 Ibid. 176 There are no official statistics regarding human casualties in these yards. The figures relating to these casualties are dependent on regular local media releases complied by local NGOs. According to these sources, 500 people died over the last fifteen years, with 200 deaths occurring in the last five years. In both cases, these deaths amount to between 1,000–1,200 over the last three decades, assuming that the annual loss of life of shipbreaking workers is more or less the same in each year. However, these figures do not cover the deaths of workers who die as a result of chronic diseases due to exposure to toxic substances. For details, Erdem Vardar et al., “End of Life Ships: The Human Cost of Breaking Ships” (December 2005). This report can be found online at <http://www/fidh.org/IMG/pdf/shipbreaking2005a.pdf> (last accessed 14 November 2011). For a detailed discussion on the PIL related with labour regulation of this industry, see Md. Saiful Karim, “Violation of Labour Rights in the Ship-Breaking Yards of Bangladesh: Legal Norms and Reality” (2009) 25(4) Int’l J. Comp. Lab. L. & Ind. Rel. 379. 41 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM environmental enlightenment, even where the poor are unable to access the courts, other forms of action, such as protest, would be viable. 177 In sum, PILs do have limitations. Environmental PILs have had mixed results in Bangladesh in practical terms. The picture of a handful of activists continuing indefinitely to represent the poor and defend the environmental causes is not a pretty one. 178 The attendant lengthy judicial oversight of PIL-engendered decisions is certainly unsustainable. Perhaps these facts are not lost on the activists. The chief executive of BELA, for example, is reported to have reflected that “some of the most significant achievements in environmental law and policy reform have resulted from the patient dialogue and relationship building that she and her colleagues at BELA have advocated.” 179 Given credit to the civil society groups and the courts for developing an awareness and legal activism in environmental regulation in Bangladesh, a core question is whether the judiciary could be an engine of social change. Rosenberg doubts the feasibility of such a role. He has developed court types – a dynamic court model and a constrained court model – and tests the impact of these courts by examining social policies and practices before and after a number of apex courts’ decisions often regarded as important sources of social change. He finds that the courts decisions have had no or virtually no significant independent direct or indirect effect on social change. He argued that special change depends on other factors like political efforts wholly separate from the court system. 180 Rajamani also assessed the impact of the leading PILs on the social changes in India. He finds that the legal activism has been able to provide some “chemotherapy for the carcinogenic body politic” 181 and exemplary work. 177 Marc Galanter has explained the theoretical issues related with such dilemma. For details see M. Galanter, “Why the ‘haves’ come out ahead: Speculations on the limits of legal change” (1974) 9 Law & Soc’y Rev. 95-160; See also Shahnaz Huda, Protecting the Common Good: Successes in Public Interest Litigation (Dhaka: Asia Foundation, 2002). 178 For instance, in the last few years, Human Rights and Peace for Bangladesh, an NGO, alone has filed more than 50 PILs. In these PILs, this NGO along with its president Advocate Mr. Monjil Murshed, has sought judicial direction for multifarious issues ranging from the issues related with the evacuation of markets from car parks, police action for protecting minorities, publication of investigation report of a murder case, illegal encroachment of rivers and so on. We tried to get details of this NGO’s PIL profile, but did not get in its website. The website does not even provide details of its contact. The link of its website is <http://hrpb.org/index.php>. 179 McQuay & Kabir, “Reflecting on Rizwana Hasan’s Goldman environmental Prize”, supra note 114. 180 G. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991) at xii+425; G. Rosenberg, “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann” (1993) 17 Law & Soc. Inquiry 761-778; for a critique of Rosenberg’s arguments, see M. Feeley, “Hollow Hopes, Flypaper, and Metaphors” 17 Law & Social Inquiry 745-760. 181 U. Baxi, “Preface” in S.P. Sathe, ed., Judicial Activism in India (New Delhi: Oxford University Press, 2002). 42 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM However, he raises concerns over the exercise of public interest environmental jurisdiction with respect to access, participation, effectiveness, and sustainability. 182 The discussion above also shows that legal activism in Bangladesh often developed “policy evolution fora” for a particular national issue and gets into the executive governance with judicial governance in sectors highlighted by a group of public interest litigants. 183 Along with an insufficient impact on a substantive change into the social movement, this type of overlapping in the major organs of the State reveal some dissatisfaction with the judicial process. The social change motion set by the judicial activism in this country, in most cases, is less than participatory; therefore, arguably, this has led to unrealistic solutions. Some stakeholders have already raised their voices against this activism, claiming that the solutions provided from the court system are, in most cases, ineffective and unsustainable. In PIL, the court can focus more on the development of some principles to solve a particular issue, and it should not get heavily involved in regulating the organisations of the government. It should, rather, boost the notion of “new governance”, where the governance is less reliant on state-dictated preferences and more on public-private collaboration, flexibility, and pragmatism. 184 Legal activism can push the political system to take the agents related to social change onto the board. To put this pressure on the political system and to bring other agents of social change into the governance system, courts can use PIL as a forum. V. CONCLUDING REMARKS The aim of PIL is to provide the opportunity for any member of the society to use the judicial activism to obtain redress for any activities detrimental to public welfare. It is a means by which the apex court can deal with public rights and liabilities within the constitutional framework and can direct the government agencies to address any issue ruled to be against the public interest. In a society where poverty and corruption are prevalent and corporate society has a strong 182 L. Rajamani, “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability”,supra note 126 at 296. 183 It would be worth mentioning the latest reported PIL at this point. In a leave to appeal against High Court Division order in Writ Petition No. 3503 on 2009, the Appellate Division of the Supreme Court of Bangladesh has put the maxim “Salus Papuli Suprema lex” in the imperative, that is, “Salus Papuli suprema lex esto” – let the safety of the people be the supreme law. The impact of this notion taken by the apex court would be many. One of those effects would be the use of PIL as a means of getting personal redress. For details, see 62 DLR(AD) 2010, at 428–435. 184 Bradley Karkkainen, “New Governance In Legal Thought And In The World: Some Splitting As Antidote To Overzealous Lumping” (2004) 89 Minn. L. Rev. 471. 43 Karim et al.: LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Published by De Gruyter, 2012 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM influence on political society, PIL could be an effective way through which the judicial activism can insist that public and private organisations are more accountable, especially against the backdrop of the legislatures’ apathy and the lack of political will in the executive branches. 185 However, its potential to create a strong peoples’ movement to reach their goal using PIL is not sufficient. Nevertheless, using PIL as a means, the outlook of legal activism creating a much more constructive role of society in general and informed groups in particular is rosy. It is likely that the organisations currently engaged in litigation would continue to file cases. However, the danger is that this is likely to continue even when short term remedial reliefs would be the only benefit as returns on long term movement-building benefits begin to diminish. The legal activists may find themselves increasingly engaged in organisational maintenance. Litigation, being reactive, would then be incapable of contributing to the desirable goal of sustainable environmental justice. Since litigation is already yielding movement- building benefits, this paper recommends that these be relied upon incrementally in the deployment of more sustainable strategies, such as education, lobbying, and other forms of participation in policy development. This calls for greater focus on strategies other than those presently adopted. However, this may necessitate the formation of new organisations with greater expertise in the new forms of political strategy. To be successful, the new entrants would have to form strong partnerships with the legal activists that have already gained reputation, prestige, and other forms of political capital. Therefore, the long-term success of the environmental social movement in Bangladesh may depend on the readiness of the established organisations to encourage and support new organisations with new strategies. The focus of this paper on the activities of social movement organisations should however not belie the fact that the implementation of environmental laws and policies remains, primarily, the responsibility of States. 185 P. Hassan & A. Azfar, “Securing Environmental Rights Through Public Interest Litigation In South Asia” (2003) 22 Va. Envtl. L.J. 215 at 246; For more details see R. Barnett, “The Civil Liberties Movement In India: New Approaches To The State And Social Change” (1987) 27(3) Asian Survey 371–392; A.K. Thiruvengadam, “In Pursuit of ‘The Common Illumination of Our House’: Trans-Judicial Influence and the Origins of PIL Jurisprudence In South Asia” (2008) 2 Indian Journal Of Constitution Law 67–103. 44 Asian Journal of Comparative Law, Vol. 7 [2012], Iss. 1, Art. 13 Brought to you by | Queensland University of Technology Authenticated | 131.181.251.20 Download Date | 7/26/13 4:10 AM Asian Journal of Comparative Law LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE Abstract 
work_aswfatcz3ferlfxbu6726mcjfa	----	[PDF] Quantitative Literacy for Social Justice | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1080/10665680601079894 Corpus ID: 42980338Quantitative Literacy for Social Justice @article{Wiest2007QuantitativeLF, title={Quantitative Literacy for Social Justice}, author={Lynda R. Wiest and H. Higgins and J. Frost}, journal={Equity & Excellence in Education}, year={2007}, volume={40}, pages={47 - 55} } Lynda R. Wiest, H. Higgins, J. Frost Published 2007 Sociology Equity & Excellence in Education In this article, we argue that many adults lack the “numeracy” needed to function in a maximally effective manner in their vocational, civic, and personal lives. We believe schools need to foster skills in quantitative literacy (QL), an inclination and ability to make reasoned decisions using general world knowledge and fundamental mathematics in authentic everyday circumstances. We explain how schools might begin to make inroads in preparing more quantitatively literate students and how this… Expand View on Taylor & Francis commons.hostos.cuny.edu Save to Library Create Alert Cite Launch Research Feed Share This Paper 29 CitationsHighly Influential Citations 2 Background Citations 10 View All 29 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Rethinking the Numerate Citizen: Quantitative Literacy and Public Issues – Reply A. Erickson Sociology 2016 8 PDF Save Alert Research Feed Crossing the great divide: Teacher candidates, mathematics, and social justice Barbara Garii, Aina K. Appova Sociology 2013 13 Save Alert Research Feed The Contribution of Course Materials to a Social Justice Agenda: Lessons from a Quantitative Literacy Course for Undergraduate Social Science Students Duncan Mhakure, J. Jaftha, Sheena Rughubar-Reddy Sociology 2014 1 PDF Save Alert Research Feed Teaching Practical Numeracy Through Social Justice Pedagogy: Case Study of Abu Dhabi Women's College M. Tanko Engineering 2012 7 Save Alert Research Feed Pre-service teachers’ awareness of interdisciplinary connections: Mathematics, financial literacy, and social justice issues M. Tanase, Thomas A. Lucey Mathematics, Political Science 2017 2 View 2 excerpts, cites background Save Alert Research Feed There is Nothing “BASIC” about Numeracy in Higher Education - A Case Study from an Accounting Programme S. Rathilal Computer Science 2015 View 2 excerpts, cites background Save Alert Research Feed How participatory action research as pedagogy helped transform the identities of students enrolled in a developmental mathematics classroom G. Moreno, David Rutledge 2020 Save Alert Research Feed Preparing Preservice Elementary Teachers to Teach About Financial Literacy: Towards a Broader Conception Thomas A. Lucey Political Science 2016 7 Save Alert Research Feed Keeping It Real: Information Literacy, Numeracy, and Economic Data Diego Méndez-Carbajo, C. Jefferson, Katrina Stierholz, California State University-Northridge Computer Science 2019 3 PDF Save Alert Research Feed Assessing Numeracy in the Upper Elementary and Middle School Years Carol Ann Gittens Psychology 2015 1 Highly Influenced PDF View 4 excerpts, cites background Save Alert Research Feed ... 1 2 3 ... References SHOWING 1-10 OF 45 REFERENCES SORT BYRelevance Most Influenced Papers Recency Numeracy: The New Literacy for a Data-Drenched Society. L. Steen Psychology 1999 140 PDF View 3 excerpts, references background Save Alert Research Feed Reading And Writing The World With Mathematics: Toward a Pedagogy for Social Justice E. Gutstein Mathematics, Political Science 2005 460 Save Alert Research Feed Why Numbers Count: Quantitative Literacy For Tomorrow's America L. Steen Psychology 1998 172 View 2 excerpts, references background Save Alert Research Feed Making Mathematics Work for All Children: Issues of Standards, Testing, and Equity A. Schoenfeld Sociology 2002 396 View 1 excerpt, references background Save Alert Research Feed Quantitative Literacy for the Next Generation Z. Usiskin Political Science 2001 14 PDF View 1 excerpt, references background Save Alert Research Feed When Do Girls Prefer Football to Fashion? An analysis of female underachievement in relation to ‘realistic’ mathematic contexts J. Boaler Psychology 1994 128 Save Alert Research Feed Radical Equations : Math Literacy and Civil Rights N. Koblitz 2002 377 PDF Save Alert Research Feed The Democratization of Mathematics A. Carnevale, Donna M. Desrochers 2004 16 Highly Influential View 4 excerpts, references background Save Alert Research Feed Critical Social Numeracy D. Lake Sociology 2002 6 View 1 excerpt, references background Save Alert Research Feed 미국 NCTM의 Principles and Standards for School Mathematics에 나타난 수학과 교수,학습의 이론 최영한, 김미월 Psychology 2002 2,665 Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract 29 Citations 45 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_ay4po53ouzeitbdpvracubt6em	----	Giddens | What is Graphic Justice? | The Comics Grid: Journal of Comics Scholarship Home News Search Articlesarrow_drop_down Submissionsarrow_drop_down Aboutarrow_drop_down Login Register Home News Search Articlesarrow_drop_down Submissionsarrow_drop_down Aboutarrow_drop_down Login Register menu Articles Collections Volumes Submissions Author Guidelines Start Submission About Become a Reviewer Research Integrity Editorial Team Articles Collections Volumes Submissions Author Guidelines Start Submission About Become a Reviewer Research Integrity Editorial Team Note What is Graphic Justice? Note What is Graphic Justice? Abstract This article reproduces a poster presented at the Socio-Legal Studies ­Association annual conference, 5–7 April 2016 at Lancaster University, UK. The poster outlines the emerging study of the legal and jurisprudential dimensions of comics. Seeking to answer the question ‘what is graphic justice?’, the poster highlights the variety of potential topics, questions, concerns, issues, and intersections that the crossover between law and comics might encounter. A transcript of the poster’s text is provided for easier reuse, as well as a list of references and suggested readings. Keywords graphic justice, justice, legal studies, law, poster How to Cite Giddens T., (2016) “What is Graphic Justice?”, The Comics Grid: Journal of Comics Scholarship 6(0). p.14. doi: https://doi.org/10.16995/cg.98 861 Views 76 Downloads The poster reproduced here (Figure 1) was presented at the Socio-Legal Studies Association annual conference, 5–7 April 2016 at Lancaster University1. This poster outlines the emerging study of the legal and jurisprudential dimensions of comics. Figure 1 “What is Graphic Justice?”. Seeking to answer the question ‘what is graphic justice?’, the poster highlights the variety of potential topics, questions, concerns, issues, and intersections that the crossover between law and comics might encounter. The poster also seeks to employ the comics form in its articulation of the vast potential of this under-explored area of legal and comics study. Methodology The poster was created primarily through manual illustration, with images scanned into GIMP 2 where they were digitally coloured, formatted and arranged, with digital text and graphics added. The reproduction here has been slightly amended (inclusion of author and Alliance details) from that originally presented at the conference. As the poster is an image file, a transcript of the poster’s text is provided below to enhance discoverability and reuse. Transcript Comic books, graphic novels, bandes dessinée, manga—whatever the chosen term, the comics medium remains under-researched in the legal academy. Aimed at rectifying this, the Graphic Justice Research Alliance is a multi-disciplinary research network exploring the crossover between law and justice and comics of all kinds. The intersection is an expansive and open one, and this poster indicates some key areas of critical insight and investigation in an attempt to begin to develop an answer to the question, ‘what is graphic justice?’ For more information on the Graphic Justice Research Alliance: Visit graphicjustice.blogspot.com | Follow @LexComica Representation of Law: Examples of law can be seen often in comics, and the visual depiction of judgment here indicates the sensory dimensions of law and justice. It is provocative in its suggestion of the towering (and divine?) power of law over the lives of its subjects. Object of Regulation: Comics arguably have a distinct multi-modality, with their unique blending of text, image, sequentiality, and graphic layout. Often with multiple creators, and with a history steeped in freedom of speech controversies due to their assumed ‘juvenility’, comics are complex objects of regulation traversing multiple areas of law. Legal Aesthetics: Law is always more than its texts. The visual image is here embedded within the text itself. Just like the multi-modal nature of comics in general, this example is symbolic of the aesthetic and visual dimensions of law and justice that comics can help us critically navigate. Sequentiality: A key dimension of comics form, the sequential images here invoke the narrative dimensions of law and legal processes. The emotive presentation of the subject under judgment further highlights the human aspects of legality—an important example of one of the many critical resources that comics bring to law. Visuality of Text: The written word is always visual in its appearance. Comics often manipulate the presentation of text in their articulation of meaning. Here we have provocatively strong, solid lettering—clear and powerful, indicative of law’s ideal of the presumed ‘plain texts’ that enable justice. Foundations of Justice: The arrangement of the text here might indicate that research is the foundation of justice; law should be informed, not instinctive. As a research alliance, this implies community and society may also be part of what grounds justice. Notes Socio-Legal Studies Association Annual Conference 2016, http://www.lancaster.ac.uk/law/slsa2016/ (Accessed 30 November 2016). [^] Competing Interests An outline proposal for this poster was peer reviewed before its acceptance for presentation at the SLSA 2016. The author is a section editor of The Comics Grid: Journal of Comics Scholarship and leads the Graphic Justice Research Alliance. This note was handled by another editor and underwent a standard triple-copyediting process. References J Bainbridge, (2007).  ‘This Is the Authority. This Planet Is under Our Protection’: An Exegesis of Superheroes’ Interrogations of Law.  Law, Culture and the Humanities 3 (3) : 455. DOI: http://dx.doi.org/10.1177/1743872107081431 N Curtis, (2016).  Sovereignty and Superheroes. Manchester: Manchester University Press, DOI: http://dx.doi.org/10.7228/manchester/9780719085048.001.0001 T Giddens, (2012).  Comics, Law, and Aesthetics: Towards the Use of Graphic Fiction in Legal Studies.  Law and Humanities 6 (1) : 85. DOI: http://dx.doi.org/10.5235/175214812800745672 T Giddens, (2015).  Graphic Justice: Intersections of Comics and Law. London: Routledge. P Goodrich, (1995).  Oedipus Lex: Psychoanalysis, History, Law. Berkeley: California University Press. T Groensteen, (2007).  The System of Comics. Jackson: University Press of Mississippi, DOI: http://dx.doi.org/10.14325/mississippi/9781617038044.001.0001 WP MacNeil, (2007).  Lex Populi: The Jurisprudence of Popular Culture. Stanford: Stanford University Press. H Miodrag, (2013).  Comics and Language: Reimagining Critical Discourse on the Form. Jackson: University Press of Mississippi. WJT Mitchell, (1986).  Iconology: Image, Text, Ideology. Chicago: University of Chicago Press. A Nyberg, (1998).  Seal of Approval: The History of the Comics Code. Jackson: University Press of Mississippi. N D Phillips, S Strobl, (2013).  Comic Book Crime: Truth, Justice, and the American Way. New York: New York University Press. L G Romero, I Dahlman, (2012).  Justice Framed: Law in Comics and Graphic Novels.  Law Text Culture 16 (special issue, open access). Available at: http://ro.uow.edu.au/ltc/vol16/iss1/. Share Authors Thomas Giddens (St Mary's University, Twickenham) Download Download XML Download PDF Issues Volume 6 • 2016 Graphic Justice Dates Submitted 2016-11-01 Published 2016-12-15 Licence Creative Commons Attribution 4.0 Peer Review This article has been peer reviewed. File Checksums (MD5) XML: bf13adb3df6fb36a9757e93f53669489 PDF: 54573afa11416a82471d7b5bd9179822 Table of Contents Non Specialist Summary This article has no summary Close | 2048-0792 | Published by Open Library of Humanities | Privacy Policy | 
work_ay64kbu3yjhypasjk4qowlvlfe	----	Knight, C., and Albertsen, A. (2015) Rawlsian justice and palliative care. Bioethics, 29(8), pp. 536-542. (doi:10.1111/bioe.12156) This is the author’s final accepted version. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://eprints.gla.ac.uk/103791/ Deposited on: 8 June 2015 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk http://dx.doi.org/10.1111/bioe.12156 http://eprints.gla.ac.uk/103791/ http://eprints.gla.ac.uk/103791/ http://eprints.gla.ac.uk/ http://eprints.gla.ac.uk/ 1 RAWLSIAN JUSTICE AND PALLIATIVE CARE* Carl Knight1 and Andreas Albertsen2 ABSTRACT Palliative care serves both as an integrated part of treatment and as a last effort to care for those we cannot cure. The extent to which palliative care should be provided and our reasons for doing so have been curiously overlooked in the debate about distributive justice in health and health care. We argue that one prominent approach, the Rawlsian approach developed by Norman Daniels, is unable to provide such reasons and such care. This is because of a central feature in Daniels’ account, namely that care should be provided to restore people’s opportunities. Daniels view is both unable to provide pain relief to those who need it as a supplement to treatment and without justice-based reasons to provide palliative care to those whose opportunities cannot be restored. We conclude that this makes Daniels’ framework much less attractive. I. INTRODUCTION Arguably the most prominent theory of distributive justice is that developed by John Rawls. His concern is with the distribution of primary goods, understood as ‘things which it is supposed a man wants whatever else he wants’.3 Rawls is specifically focused on ‘the chief primary goods at the disposition of society’, which are ‘rights, liberties, and * This article is, as of early 2015, in press with Bioethics. The ‘Early View’ online version is available at http://onlinelibrary.wiley.com/doi/10.1111/bioe.12156/abstract. Funding: British Academy (grant number pf100118). 1 Department of Politics, University of Glasgow, Glasgow, UK; Department of Politics, University of Johannesburg, Auckland Park, South Africa. 2 Department of Political Science and Government, Aarhus University, School of Business and Social Sciences, Aarhus, Denmark 3 John Rawls. 1971. A Theory of Justice. Cambridge, Mass.: Belknap Press, 1971): 92. http://onlinelibrary.wiley.com/doi/10.1111/bioe.12156/abstract 2 opportunities, and income and wealth’ and ‘the social bases of self-respect’.4 The focus on social primary goods prompted critiques pointing out that this is unfair towards people who are disadvantaged in their natural characteristics.5 This critique is especially relevant in the area of health and healthcare, which Rawls says little about.6 In his introduction to Political Liberalism he suggest that ‘[b]asic health care assured all citizens’ is an ‘institution required for … stability’.7 But given that political stability is consistent with low levels of health care coverage, this is hardly an adequate reason to supply it. Elsewhere Rawls leaves decisions over the provision of healthcare to the legislative stage.8 Though acknowledging such shortfalls in Rawls’ work, Norman Daniels maintained that ‘[p]roperly extended, Rawls’ theory captures just the structure of our responses [to inequalities in capabilities sets] in a plausible way’.9 This article sets out to consider this extension in the context of the pain relieving practices known as palliative care. This is an increasingly important aspect of contemporary health care.10 4 Ibid: 62, 178. 5 K. J. Arrow. Some Ordinalist-Utilitarian Notes on Rawls’s Theory of Justice by John Rawls. The Journal of Philosophy 1973; 70: 254; W. Kymlicka. 1990. Contemporary Political Philosophy: An Introduction. Oxford: Oxford University Press: 71–73; A. Sen. 1987. Equality of What?. In Liberty, Equality, and Law: Selected Tanner Lectures on Human Values, S. McMurrin, ed. Cambridge: Cambridge University Press: 157–62. This move may also be due in part to Rawls’ failure to resolve the problem of commensurating social primary goods in an index: K. J. Arrow. Op. Cit.; R. J. Arneson. Primary Goods Reconsidered. 1990. Noûs 24, no. 3: 429–54; J. Roemer. 1996. Theories of Distributive Justice. Cambridge Mass: Harvard University Press: chap. 5. We are not concerned with this problem here. 6 Rawls often assumes away this discussion, asserting ‘that while citizens do not have equal capacities, they do have, at least to the essential minimum degree, the moral, intellectual and physical capacities that enable them to be fully co-operating members of society’ John Rawls. 1999. Collected Papers. Cambridge, Mass: Harvard University Press: 183. See also: Ibid: 259; John Rawls. 2011. Justice as Fairness: A Restatement. Cambridge, Mass: Harvard University Press: 58, 60, 170. 7 John Rawls. 1996. Political Liberalism. New York: Columbia University Press: lviii–lix. 8 Ibid: 184; Rawls, Justice as Fairness: 173–176. 9 Norman Daniels. Equality of What: Welfare, Resources, or Capabilities?. 1990. Philosophy and Phenomenological Research; 50: 283. 10 R. Sean Morrison et al., The Growth of Palliative Care Programs in United States Hospitals. Journal of Palliative Medicine 2005; 8: 1127–34; Udo SchüKlenk et al., End-of-Life Decision-Making in Canada: The Report by the Royal Society of Canada Expert Panel on End-of-Life Decision-Making: End-of-Life Decision-Making in Canada. Bioethics 2011; 25: 1–73; Jan Stjernswärd, Sophie M. Colleau, and Vittorio Ventafridda. The World 3 WHO defines palliative care as: ‘an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering’.11 The importance of palliative care is acknowledged in a wide variety of situations.12 But despite growing importance for medical practice, little theoretical work has been done to integrate the idea into work on distributive justice in health and healthcare. Addressing this very issue, the article brings an important practical aspect into the discussion of the most prominent theory of distributive justice in medical ethics. It does so by first presenting Daniels’ now famous account of Rawlsian justice in health and healthcare. Afterwards it raises two criticism of this position in relation to palliative care. One is that Daniels’ account is indifferent toward the pain associated with treatment and unable to prefer the less painful of two equally effective treatments. The other is that when little or nothing can be done in terms of treatment, Daniels view doesn´t give us good reason to relieve people’s pain. In both discussions several proposals for maintaining Daniels view are discussed, including a recent argument for the viability of Daniels’ account in relation to palliative care.13 We also consider responses suggested by the wider Rawlsian literature. Finding none of these persuasive, we conclude that on account of its inability to provide convincing answers in relation to this important topic, the Rawlsian enterprise loses much of its appeal in a health context. Health Organization Cancer Pain and Palliative Care Program Past, Present, and Future. Journal of Pain and Symptom Management 1996; 12: 65–72. 11 WHO, “Definition of Palliative” (WHO Geneva, 2009), http://www.who.int/cancer/palliative/definition/en. 12 C. Blinderman. Palliative Care, Public Health and Justice: Setting Priorities in Resource Poor Countries. Developing World Bioethics 2009; 9: 106; K. W. Carroll et al., Influences on Decision Making Identified by Parents of Children Receiving Pediatric Palliative Care. AJOB Primary Research 2012; 3: 1–7; S. J. Goodlin et al., Consensus Statement: Palliative and Supportive Care in Advanced Heart Failure. Journal of Cardiac Failure 2004; 10: 200–209; C. Sepúlveda et al., Palliative Care. Journal of Pain and Symptom Management 2002; 24: 91–96; Stjernswärd, Colleau, and Ventafridda, op. cit. 13 Blinderman, op. cit note 12. 4 II: DANIELS’ EXTENSION OF THE RAWLSIAN ACCOUNT Daniels’ account is the most developed Rawlsian position in relation to health and healthcare. Furthermore, Rawls endorses this view on several occasions.14 Thus, Daniels’ account is the natural starting point for a discussion of Rawlsian justice in palliative care. Daniels admits that ‘Rawls’s index of primary goods seems to be too truncated once we drop the assumption that all people are normal. People with equal indices will not have equally good life prospects if they have different health-care needs’.15 To cater for this shortfall Daniels extends Rawls’ theory by including the institutions protecting people’s health among society’s basic institutions aimed at providing fair equality of opportunity.16 To see why, we must consider Daniels’ view on health. Daniels understands health deficits as deviations from normal functioning. Normal functioning for an individual is ‘the subset of the normal range their skills and talents make it reasonable for them to pursue’. 17 Health needs are defined objectively as ‘those things we need in order to maintain, restore or provide functional equivalents (where possible) to normal species functioning (for the appropriate reference class by gender and age)’.18 Daniels then ‘emphasize[s] a relationship between normal functioning and opportunity, one of the primary social goods’.19 If health deficits impede people’s opportunities then the institutions tasked with providing such opportunities should also restore people to 14 Rawls, Justice as Fairness, 175 n58; John Rawls. 2005. Political Liberalism. New York: Columbia University Press: 184. 15 N. Daniels. 1985. Just Health Care. New York: Cambridge University Press: 43; Norman Daniels. 2008. Just Health : Meeting Health Needs Fairly. New York: Cambridge University Press: 56. 16 Daniels, Just Health Care: 45; Daniels, Just Health: 57. For critiques of this application of Rawls, see F. M. Kamm. Health and Equality of Opportunity. The American Journal of Bioethics 2001: 1: 17–19. 17 Daniels, Just Health Care: 108. 18 Ibid., 32; Daniels, Just Health: 42. 19 Daniels. Equality of What: Welfare, Resources, or Capabilities?: 280. See also Daniels, Just Health Care: 34; N.Daniels. Justice, Health, and Healthcare. The American Journal of Bioethics 2001; 1: 3; Daniels, Just Health, 46. 5 normal functioning. Thus, according to Daniels, the prominence and importance of health arises through its impact on people’s opportunities.20 The relation between health and opportunities does not rely on the specification of health as normal functioning (as long as health deficits reduce opportunities). So even though much criticism of Daniels revolves around the plausibility of his view on health, this article does not dwell on that discussion.21 The above formulations are more or less consistently expressed throughout Daniels’ work. The most important recent development has been Daniels’ effort to underscore how health is influenced by social determinants outside what is traditionally understood as health care 22 and to develop a procedural answer23 on how to distribute resources when reasonable persons could disagree over whom to give priority to in a world of scarce resources. 24 We now turn to how Daniels’ extension of the Rawlsian approach fares in relation to palliative care. III. RAWLSIAN PALLIATIVE CARE The starting point for the discussion of Daniels’ view is that it has a clear focus on opportunities rather than wellbeing. Intuitively and certainly in relation to palliative care the impact of health on our life-plans and opportunities might be considered as a strange reason to provide care. Wouldn’t wellbeing on some dimension provide a more sensible rationale?25 Rawlsians, however, do not have this individualistic conception of the aim of society. For them, the restoration of normal functioning is a compelling 20 Daniels, Justice, Health, and Healthcare: 3,4. 21 For such discussion see N. Holtug. Equality and the Treatment-Enhancement Distinction. Bioethics 2011; 25: 137–44; E. Krag. Health as Normal Function: A Weak Link in Daniels’s Theory of Just Health Distribution. Bioethics 2013. doi:10.1111/bioe.12007; M. Lanoix. From Normal Species Functioning to Capabilities, Is It Enough?. The American Journal of Bioethics 2013; 13: 20–21. 22 Daniels, Justice, Health, and Healthcare: 2; Daniels, Just Health: 12, 17, 42. 23 N. Daniels. Rationing Fairly: Programmatic Considerations. Bioethics 1993; 7: 224–33; Daniels, Just Health. 24 While the former is widely accepted as an important development, the later has been criticized; see A. Friedman. Beyond Accountability for Reasonableness. Bioethics 2008; 22: 101–12; M. B. Mahowald. Why Retreat to Procedural Justice?. The American Journal of Bioethics 2001; 1: 25–26. 25 G. Sreenivasan. Opportunity Is Not the Key. The American Journal of Bioethics 2001; 1: 1b–2b. 6 rationale for compensation because, and only because, it is a means to the social and political objectives of securing people’s opportunities.26 The next subsections examine different problems which this raises for Daniels’ account. The first relates to the role of pain relief in treatment and the second to the rationale for providing pain relief for those who cannot be cured. Reducing pain in treatment In the delivery of medical treatment the role of pain relief differs. Sometimes treatment is painful and could thus be supplemented by medicaments or other initiatives to relieve pain. In other cases only some forms of available treatment are painful and pain might be one reason for preferring one treatment over another. It is interesting whether Daniels’ account, with its focus on opportunities, is able to justify taking the relief of pain into account. To see why we may doubt this, consider first a person for whom the available treatment is painful. If the treatment is able to effectively restore the person’s normal functioning, it is hard to see how an account justifying treatment based on its ability to restore normal functioning can argue that pain relief should be supplied as well (or at least that it should be provided free of charge). Aspirin, Codeine, Ibuprofen, Morphine, and Paracetamol, analgesics included on the WHO Model List of Essential Medicines, would not be provided in any such cases, however bad the pain.27 Or consider a situation where we can choose between two treatments, which are equally effective in restoring opportunities. They differ, however, in how painful they are to undergo. Suppose, for instance, that an invasive procedure has the same quality of outcome as an 26 Daniels, Equality of What: Welfare, Resources, or Capabilities?,: 284–285. 27 For the complete list, see WHO, “WHO Model List of Essential Medicines,” 2013, http://apps.who.int/iris/bitstream/10665/93142/1/EML_18_eng.pdf?ua=1. 7 alternative non-invasive procedure, with the exception that the former will bring severe post-surgery pain while the latter is painless. Daniels’ account is, in principle, indifferent as to whether that treatment is carried out in a painless or agonizing manner. Since both of these criticisms would surely reflect badly on Daniels’ account, we will discuss three possible answers to them. The first reply to be considered doubts the relevance of wellbeing in a healthcare context. Briefly considering the idea that wellbeing or welfare is a more plausible rationale than preserving opportunities, Daniels dismisses the idea, writing that ‘much health care affects quality of life in other ways, so the benefit of reducing pain and suffering is not general enough for our purposes’.28 But this reply addresses the claim that health care is provided solely to ease pain and suffering. However, that is not the present claim, which is rather that pain and suffering are (at the very least) factors among others to be taken into account when assigning healthcare. Furthermore, Daniels states that ‘some suffering, for example, some emotional suffering, though a cause for concern, does not obviously become a concern of justice’ (Daniels 1981, 169). But our claim leaves open the question of whether justice is concerned with all (human) suffering. We merely need to show some cases where pain and suffering are a matter of justice. The amount of avoidable pain the state chooses to inflict when administering medical treatment is very much a matter of justice. Some suffering may not be a matter of justice, but that is not simply because it falls into the category of suffering. Other considerations are needed to support that conclusion. We may think that Daniels’ example of emotional suffering would often not be a matter of justice because it is impermissible for the state to interfere with citizens’ private lives by, for instance, compensating jilted lovers. But the state is not acting outside its jurisdiction when it 28 N. Daniels. Health-Care Needs and Distributive Justice. Philosophy & Public Affairs 1981; 10: 169. 8 provides less painful rather than more painful treatment. Thus, these answers from Daniels are inadequate to uphold the view that pain and wellbeing are not a concern in these matters. Another type of answer available to Daniels would be to concede the importance of wellbeing, but claim that his account is compatible with taking pain reduction into account. Let’s examine some possible arguments for such compatibility. The first compatibility claim could be to submit that relieving pain is, in practice, often necessary for doctors in order to perform a given treatment. But this does not provide a reason to prefer the least painful treatment under the stipulation that we are choosing between equally efficient treatments. Furthermore, it is bizarre to say that the only reason doctors should ever prescribe painkillers is to make their job easier, rather than to ease pain itself, so this argument for relieving pain is not satisfactory. It could also be submitted, drawing on Rawls, that we should prevent pain to secure the ‘social bases of self-respect.’ This, however, also seems inadequate. In some cases persons may receive unnecessarily discomforting treatment from the state without feeling disrespected. Many patients do not have a full understanding of the treatments available for their condition, so they would not know that they had received a more painful than necessary treatment. If, for all they know, the state has done as well as it can for them, why would they feel disrespected? Moreover, even if they do know that there are less painful treatments available, it will probably also be known that the state consistently refuses to accept pain reduction as one of its goals, and is merely acting on its stated principle. Again, in such circumstances patients may well feel greatly discomforted but not disrespected. It could be further countered that in such cases, regardless of patients’ subjective feeling of being respected, an objective state of 9 disrespect is present.29 However, it seems highly doubtful that one could draw from Daniels’ work an objective notion of disrespect that arose specifically in cases of avoidable pain given Daniels’ rejection of wellbeing as a measure of justice in healthcare. Thus, the second argument for the compatibility of Rawlsian justice with pain relief also fails. A final reply to the criticism is suggested by Blinderman. He argues that eliminating pain should be considered a part of protecting opportunities. On this account the issue has so far been discussed from the wrong perspective. Daniels need not argue that wellbeing or relief of pain is unimportant in the context of health care and he need not claim that protecting opportunities is compatible with the different concern of pain relief. Instead protecting opportunities includes providing the relief of pain. To illustrate why this is so Blinderman provides the following example of how this can be: As patients progress towards death their opportunities become profoundly limited. Nonetheless, we must acknowledge that one goal of palliative care is to preserve this limited opportunity range. Terminally ill patients may hope to communicate meaningfully with loved ones, reflect on their lives and finish a variety of projects. Such opportunities would be incompatible with pain and suffering. 30 For that reason he argues that Daniels’ account is very able to give us good reason to supply palliative care. He notes, however, one important limitation to that view: situations where we cannot bring people back to normal functioning.31 As this is 29 A referee suggested this response. 30 Blinderman, Palliative Care, Public Health and Justice: Setting Priorities in Resource Poor Countries: 107. 31 Ibid. 10 discussed in the next section, we can set that aside in order to assess whether Blinderman’s argument is plausible in the important context in which he offers it. The first thing that should be granted to the argument above is that since functioning is age-specific we can reasonably acknowledge that the palliative care in the example can be supplied by Daniels. This is so because it restores functioning in the relevant sense and can thus firmly be justified by the Rawlsian approach to health proposed by Daniels. We will not argue that it is stretching the concept of protecting opportunities. But we do argue that it is far from self-evident from the provided example that Daniels’ account can, in general, recommend palliative care. The reason for this is that in the example palliative care is the very thing restoring functioning and protecting opportunities. Surely, then, it can be incorporated into Daniels’ framework. But what happens when protecting opportunities and relieving pain come apart? Suppose a patient already has the ability to communicate with family and reflect on her life, but also suffers from severe pain. We can provide morphine, which will slightly reduce their overall ability to communicate and reflect, but will significantly reduce the pain.32 If the patient prefers to receive the morphine, we should surely provide it. But Daniels’ account cannot say this, as the morphine does nothing in terms of restoring opportunity – indeed, it slightly reduces opportunity through reducing the ability to communicate and reflect. The fundamental problem – the tension between the objectives of alleviating pain and protecting opportunities - resurfaces. Reducing pain - beyond treatment 32 See S. K Kamboj et al., The Effects of Immediate-Release Morphine on Cognitive Functioning in Patients Receiving Chronic Opioid Therapy in Palliative Care. Pain 2005; 117: 388–95. 11 Aside from whether Daniels’ account is able to provide palliative care as an integrated part of treatment, another important complication springs from the focus on restoring opportunities. There seem to be cases where the Rawlsian rationale developed by Daniels suggests care should not be provided at all.33 The thrust of the critique presented here is that if we allocate healthcare solely to restore ‘normal functioning’ in order to protect opportunities, many kinds of important palliative care initiatives should not be undertaken at all as they do not serve this purpose. On the face of it the Rawlsian idea of restoring people to the norm leaves those who cannot be so restored – who, we may hypothesise, are often the most ill – without any medical assistance.34 Consider Daniels’ statement that ‘if we can minimize the impact of the deficit on opportunities we have an obligation to do so…’.35 The critique is then straightforwardly to ask what we owe people when we cannot minimize the health impact on opportunities. When we are concerned with health deficits (or deviations from normal functioning) because of their impact on people’s opportunities, why should we then provide care for those whose opportunities we cannot bring back or improve? There is a fairly obvious response to this second problem. Daniels observes that ‘not all treatments are cures, and some institutions and services are needed to maintain persons in a way that is as close as possible to the idealization’,36 where idealization refers to normal functioning. Daniels labels such institutions a ‘third layer of institutions’, adding them to the layers aimed at preventing or curing disease. But this response is in clear tension with the objective of restoring normal functioning, as part of 33 Segall argues that this is also the case where measures outside the traditional health care setting do a better job of protecting opportunities and in cases where people of old age don’t have any life-plans left to pursue: Shlomi Segall. 2010. Health, Luck, and Justice. Princeton, NJ: Princeton: 32–36; 93. 34 A point which Blinderman concedes Blinderman, Palliative Care, Public Health and Justice: Setting Priorities in Resource Poor Countries: 107. 35 Daniels, Just Health: 148. 36 Daniels, Just Health Care: 48. 12 the activities of this ‘third layer of institutions’ will be to restore minor functionings which make it no easier to create or pursue life plans. For instance, pain relief may sometimes be neutral (or worse) regarding cognitive performance. Resources are thus allocated to activities with little or no influence on people’s opportunities in the Rawlsian sense. This problem is exacerbated when we consider what Daniels calls the fourth layer of institutions, which ‘involves health care and related social services for those who can in no way be brought closer to the idealization’.37 This seems to be where palliative care for those who cannot be cured is located. But here the tension between a justice-based rationale of restoring or protecting opportunities and the provision of care for those we cannot help in such a way is apparent. For if a patient is beyond the point at which we can bring them closer to normal functioning, it is clear that the objective of restoring normal functioning to protect opportunities cannot provide the rationale for their treatment. It is, then, very hard to see how Daniels can maintain that ‘all these institutions and services are needed if fair equality of opportunity is to be guaranteed’.38 None of the fourth layer activities will enable people to construct and act upon life plans. Freedom and opportunity in the Rawlsian senses will not in any way be expanded by the activities undertaken here. It would, as Daniels seems to agree, reflect badly on the Rawlsian theory of justice in health if such services cannot be provided in the name of justice. This would in effect leave Daniels’ account without the ability to justify palliative care. Stopping short of accepting that people whose opportunities we cannot improve should not be aided, two possibilities are seemingly open to the Rawlsian. One is to 37 Ibid. 38 Ibid.; Daniels, Just Health: 62. 13 present other reasons of justice for providing the care under discussion; the other is to point to values outside the scope of distributive justice able to secure the provision of such care. Considering the first possibility, wellbeing or welfare would be suitable candidates for this. But as should be clear from the earlier discussion this amounts to invoking non-Rawlsian reasons, and furthermore, to invoking reasons Daniels elsewhere considers not to be the right reasons for providing care. This approach raises a rather delicate question: if we prefer to go with provisions based on welfare rather than those based on opportunities when they differ in their recommendations, then why not use welfare from the outset? Thus this line of defence from the Rawlsian increases rather than decreases the extent to which we doubt that opportunities are the right focus. But perhaps Daniels and other Rawlsians need not introduce other justice values and furthermore need not to be embarrassed that their theory cannot justify the provision of palliative care to those whose opportunities we cannot improve. For as Daniels writes, ‘by the time we get to the fourth layer moral virtues other than justice become prominent’,39 or similarly, that ‘[t]hese services raise serious issues, for example about compassion and beneficence, that go beyond justice’.40 Although the word is not used, this appears to be a gesture towards charity. But non-restorative treatment cannot be left to the contingencies of charity. Some cases at least are unambiguously matters of justice and Daniels perhaps agrees when he asserts that ‘we owe people health care and related social services even when they cannot be brought closer to idealization’.41 While Daniels could say that those matters are of no concern to justice, 39 Daniels, Just Health Care: 48. 40 Daniels, Just Health: 62. 41 Ibid. 14 his hesitation to do so reveals that he does not consider this an attractive solution. We concur. The strength of the objections examined here and in the previous section, and the importance of the lack of suitable replies in Daniels’ framework can be illustrated by an example where they come together. Consider the case of cancer patients, often associated with palliative care. When the cancer is thought treatable, treatment will be provided in the most efficient way, regardless of how painful that may be. If the cancer turns terminal, any morphine publicly provided for instrumental reasons – to make medical procedures easier to perform – will be switched off, and the patient left in agony, if he cannot afford to pay for continued treatment and no charitable individual or organisation comes forward. Such cases show that, contrary to Daniels’ claim, it is simply not true in the context of the important areas of palliative care that an appropriate extension of Rawlsian theory accommodates egalitarian intuitions. The justificatory structure of Rawlsian justice, either orthodox or extended as Daniels proposes, leaves it indifferent to some kinds of overwhelmingly compelling medical need. IV. RAWLSIAN ALTERNATIVES Having considered Daniels’ account and found it unable to justify palliative care in a satisfying manner it might be worthwhile to consider alternative replies which could be used to address this discussion from a broader Rawlsian framework. The Rawlsian might, firstly, suggest that our claims have failed to account for the extent to which their favoured redistributive theory provides everyone with sufficient goods to secure their basic needs without the need for special provision. In particular, Rawls’ difference principle allocates income and wealth to the greatest benefit of the 15 least advantage. Under such an egalitarian distribution it could be thought sheer hyperbole to talk of cancer patients without morphine, especially given the fact that Rawlsian justice will compensate persons who do not receive the expected social primary goods owing to illnesses or accidents.42 Views along similar lines are also expressed by Daniels.43 We do not think this response is sound. It is simply not the case that Rawlsian redistribution provides for all the needs that it should. Certain medical treatments that may significantly decrease the amount of pain suffered by a patient may be beyond the means of some such persons even after redistribution. The Rawlsian compensation only provides for the loss of social primary goods, primarily income, and is insensitive to the cost of individual health care needs. The cost of an individual’s palliative care, even in an otherwise egalitarian society, may exceed the income they have lost due to illness. In that case the compensation they receive will be insufficient to meet their health care need. Even where the necessary treatments and aids are within the buying power of those who need them, it is simply unfair that the provision of such things should come out of their share of goods, leaving them with less money to spend on other things. Why, the egalitarian asks, should the ill have less money to spend on food, accommodation and other essential needs just because they are ill and want to be free of pain? In this regard more subjective ‘luck egalitarian’ distributive theories such as equality of resources, equality of opportunity for welfare and equality of access to advantage seem to be preferable, on account of their ability to take into account disadvantaging natural characteristics.44 42 Rawls, Justice as Fairness: 172–173. 43 N. Daniels, B. P Kennedy, and I. Kawachi. Why Justice Is Good for Our Health: The Social Determinants of Health Inequalities. Daedalus 1999; 128: 215–51; Daniels, Just Health: 94. 44 R. J. Arneson. Equality and Equal Opportunity for Welfare. Philosophical Studies 1989; 56: 77 – 93; G. A. Cohen. On the Currency of Egalitarian Justice. Ethics 1989; 99: 906–44; N. Eyal and A. Voorhoeve. Inequalities 16 A second Rawlsian response, like the first, aims to provide for palliative care through the difference principle. It differs from the first by adding health care to the list of social primary goods to be distributed by that principle, on the basis that health is something you want, whatever else you want.45 This seems a clear improvement on the standard Rawlsian theory as it provides a principled basis for providing palliative care where it does not further opportunity restoration. Yet it still falls short of what is required. Even if the list of primary goods relevant to justice were lengthened in this way, many of the inegalitarian effects of Rawlsian theory regarding health and healthcare would remain. As Allen Buchanan points out, Rawls proposes that principles are selected from behind a ‘veil of ignorance’ that would ‘preclude a solution to the problem of weighting health care against other primary goods because the answer will depend upon facts about the particular conditions of the society in which the notions in question are to be applied’ (Buchanan 1984: 61). Thus, the theory cannot guarantee any significant level of support for healthcare that does not restore opportunity as the decision regarding the weightings of particular primary goods would be left to politics to decide.46 This response does at least give palliative care representation within Rawlsian theory, but this may well amount to little in practice. The final Rawlsian response accepts that on the test of accounting for natural variations Rawlsian justice fails. But rather than adjust the theory, as the second in HIV Care: Chances Versus Outcomes. The American Journal of Bioethics 2011: 11: 42–44; Albertsen, A., and C. Knight. A Framework for Luck Egalitarianism in Health and Healthcare. Journal of Medical Ethics, February 6, 2014. doi:10.1136/medethics-2013-101666; Segall, op. cit. 45 Daniels writes that being in good health is not necessarily good for all of our goals, N. Daniels. Health-Care Needs and Distributive Justice. Philosophy & Public Affairs 1981;10: 154. Daniels remains sceptical towards such a strategy, mainly because it would allow for an inegalitarian distribution of healthcare: Daniels, Just Health Care, 43; Daniels, Just Health, 56.. On this point Rawls and Daniels disagree, for Rawls lists health as a natural primary good: Rawls, A Theory of Justice: 62. 46 A. E. Buchanan. The Right to a Decent Minimum of Health Care. Philosophy & Public Affairs 1984; 13: 62; R. M. Green. Access to Healthcare: Going Beyond Fair Equality of Opportunity. American Journal of Bioethics 2001; 1: 22–23. 17 response suggested, the third response insists that this shows the test to be incompatible with the Rawlsian requirement that theories of justice should be neutral between conceptions of the good. In other words, palliative care is not provided because to do so would prioritize some conceptions of the good (specifically, those that place some value on pain relief) over others. We have two comments on this response. First, were it true that palliative care was incompatible with the neutrality requirement, that would suggest nothing more than that this requirement is incompatible with egalitarianism. Second, we do not think it is true. Ronald Dworkin’s theory of equality of resources, for instance, acknowledges the neutrality requirement whilst being sensitive to natural variations.47 Furthermore, we can get further towards equality using primary goods than Rawls and Daniels manage. Allow us to return to the example of terminal cancer patients. The Rawlsian denies them their morphine on two dubious grounds: that absence of pain is not a primary social good, and they are the only things that get distributed; and that they are beyond any recovery to full membership of society. But is the benefit of being free of intense pain really only a conception of the good-relative benefit? Perhaps there are some flagellants who do not view this as a benefit; nonetheless, we feel confident that we could find as many, if not more, persons whose ends are not served by their possessing primary social goods such as wealth and power.48 We are inclined, then, to believe that absence of pain is at least as conception neutral as Rawls’ social primary goods. V. CONCLUSION 47 See R. Dworkin. 2000. Sovereign Virtue : The Theory and Practice of Equality. Cambridge Mass: Harvard Univ. Press. 48 See A. Schwartz. Moral Neutrality and Primary Goods. Ethics 1973; 83: 294–307; M. Teitelman. The Limits of Individualism. Journal of Philosophy 1972; 64, no. 18: 545–56. 18 In relation to the increasingly important topic of palliative care, it must be concluded that the Rawlsian project, as extended by Daniels, does not provide sound answers. Its inability to recommend the less painful treatment and its willingness to leave those who cannot be cured to the contingencies of charity is unacceptable. We believe this implication reflects badly on the enterprise of applying Rawlsian justice to health and health care. Those looking for a normative account of health care that accommodates palliative care should look elsewhere. 
work_ayyun2isvjge7lubtjjcboc7nm	----	Durham Research Online Deposited in DRO: 22 May 2008 Version of attached file: Published Version Peer-review status of attached file: Peer-reviewed Citation for published item: Beever, A. (2004) ’Aristotle on equity, law and justice.’, Legal theory., 10 (1). pp. 33-50. Further information on publisher’s website: http://dx.doi.org/10.1017/S1352325204000163 Publisher’s copyright statement: 2004 Cambridge University Press Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-profit purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 — Fax : +44 (0)191 334 2971 http://dro.dur.ac.uk CORE Metadata, citation and similar papers at core.ac.uk Provided by Durham Research Online https://core.ac.uk/display/66089?utm_source=pdf&utm_medium=banner&utm_campaign=pdf-decoration-v1 http://www.dur.ac.uk http://dx.doi.org/10.1017/S1352325204000163 http://dro.dur.ac.uk/3245/ http://dro.dur.ac.uk/policies/usepolicy.pdf http://dro.dur.ac.uk Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-profit purposes provided that : a full bibliographic reference is made to the original source a link is made to the metadata record in DRO the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 http://dro.dur.ac.uk Durham Research Online Deposited in DRO: 22 May 2008. Version of attached file: Published. Peer-review status of attached file: Peer-reviewed. Citation for published item: Beever, A. (2004) 'Aristotle on equity, law and justice.' , Legal theory., 10 (1), pp. 33- 50. Further information on publisher’s website: http://dx.doi.org/10.1017/S1352325204000163 Legal Theory, 10 (2004), 33–50. Printed in the United States of America Published by Cambridge University Press 0361-6843/04 $12.00 + 00 ARISTOTLE ON EQUITY, LAW, AND JUSTICE* Allan Beever University of Auckland I. INTRODUCTION In a famous passage in his Ethics, Aristotle considers the nature of equity and its relation to justice.1 His conclusion seems to be that equity’s role is to prevent the law from adhering too rigidly to its own rules and principles when those rules and principles produce injustice. Hence equity permits judges to depart from legal principle in order to promote justice. In this ar- ticle, however, I argue that this conclusion is problematic as it is inconsistent with other claims Aristotle makes, both in his short discussion of equity in the Ethics and elsewhere. Accordingly, I suggest a reinterpretation of Aris- totle’s view that explains more satisfactorily the connection between law, in its various senses, and justice. II. FORMS AND KINDS OF JUSTICE For Aristotle, “justice” has both a particular and a general meaning. In its general sense, it is a synonym for virtue; the just man being the virtuous or good man. Conversely, in its more particular sense, the only sense with which we are interested here, justice is concerned with only part of virtue: giving persons their due. Aristotle maintains that particular justice has two forms: distributive and corrective.2 He also describes a kind of justice—legal justice—and identifies equity in relation to both legal justice and particular justice. * I would like to thank John Gardner and the anonymous reviewer for Legal Theory. 1. ARISTOTLE, ETHICS, 198–200 [1137a32–1138a3] (J.A.K. Thomson, trans., 1976). See also Aristotle, Rhetoric, in ARISTOTLE: THE COMPLETE WORKS 2152, 2188 [1374a25–b23] (Jonathan Barnes ed., 1984). I adopt Thompson’s translation of the Ethics for the most part because it is most friendly to the view I argue against. 2. The translation is often “commutative justice” or “rectificatory justice.” I choose to adopt “corrective justice” as that is the term most familiar to lawyers. In the following, I ignore the problem that it is unclear whether criminal law belongs to distributive or corrective justice on this schema. 33 34 ALLAN BEEVER In order to understand the relationship of these concepts, it is necessary to comprehend the distinction between forms or species of justice3 and what I refer to as kinds or types of justice. There are many kinds of justice. Aristotle focuses on legal justice and political justice, but there are many others: justice within the family,4 between academic colleagues, and so on. Justice comes in kinds because the content of justice varies with respect to different activities.5 Justice in the home is different from justice amongst one’s colleagues. Nevertheless, all kinds of justice are species of the overar- ching particular justice—I refer to this here as “absolute justice.” Hence one action may be just from the perspective of one kind of justice, unjust from the perspective of another, but absolutely just or unjust. Imagine that I have a son and a daughter and that my daughter is one of my students. If I spend much time on all of my students then, as a matter of distributive academic justice (if we can speak of such), I may be obliged to spend time with my daughter that means that I cannot spend an equal amount of time with my son. But this may be said to be inconsistent with distributive parental justice. Nevertheless, it will be possible to say that some action—likely to be some sort of compromise—is absolutely distributively just. On the other hand, the forms of justice correspond to general methods of evaluating justice: either in terms of the overall spread of “honour or money or such other assets as are divisible among members of the community” (dis- tributive justice) or in terms of rectifying “the conditions of a transaction” (corrective justice).6 Hence there are only two forms of justice. At least in theory, there are some actions to which neither form of justice applies: those that do not distribute honor, money, or other relevant assets and do not involve gains and losses in transactions. Other actions involve one form of justice, and some involve both. With respect to that last set of actions, distributive and corrective justice may come into conflict. For instance, an action may be correctively unjust but distributively just (stealing from the rich to give to the poor?) or vice versa. In such circumstances, it is impossible to say that the action is just or unjust overall. There is no overall form of justice that captures both distributive and corrective justice. Hence, while such an action may be good or bad overall—because, say, the distributive justice is more important than the corrective injustice—we cannot say that it is absolutely just or unjust. Accordingly, there are two forms of absolute justice: absolute distributive justice and absolute corrective justice. In cases in which only one type of jus- tice is relevant, this presents no difficulty. However, in cases involving both forms of justice, the conflict between distributive and corrective justice is im- portant and, as discussed below, relates to Aristotle’s doctrine of equity. For the sake of simplicity and clarity, I postpone that discussion for the moment 3. ARISTOTLE, NICOMACHEAN ETHICS, 70 [1130b30–131a1] (Terence Irwin, trans., 1999). 4. ARISTOTLE, ETHICS, supra note 1, at 189 [1134b10–13]. 5. Id. 6. Id. at 176–177 [1130b30–1131a1]. Aristotle on Equity, Law, and Justice 35 and assume that the cases under investigation involve actions that are relevant either to distributive justice or to corrective justice but not to both. III. JUSTICE AND EQUITY One consequence of the above is that legal justice is not absolute justice (distributive or corrective) but is the kind of justice appropriate to the activity of doing law, in a sense to be elucidated below. In consequence, Aristotle maintains that legal justice exhibits certain deficiencies from the perspective of absolute justice. One reason for this is that “all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms.”7 The latter claim is a product of Aristotle’s view that in ethics “we must be satisfied with a broad outline of the truth; that is, in arguing about what is for the most part so from premises which are for the most part true we must be content to draw conclusions that are similarly qualified.”8 We may summarize this by saying that for Aristotle, ethical truth is too complex to be captured by any finite consistent set of principles. Hence a system that insisted on the observation of principles could not realize justice. Here, then, we can see why Aristotle would hold that legal justice cannot perfectly map onto absolute justice. As “all law is universal”—that is, as all law is expressed in terms of universal principles—it is guaranteed to generate unjust results in some cases. Equity fills the gap between legal justice and absolute justice. The content of equity consists of those judgments required to reconcile the former with the latter. Say that legal justice dictates that A is bound to do X but it is (all things considered) unjust to require A to do X. Legal justice is that part of morality that dictates that A is to do X; absolute justice is the part that permits A not to do X; and equity is the part that acts on legal justice to restrict its operation so that A does not in fact have to do X. Equity, then, is not justice itself but the part of morality that corrects the deficiencies of legal justice. [W]hen the law states a general rule, and a case arises under this that is ex- ceptional, then it is right, where the legislator owing to the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself would have given if he had been present there, and as he would have enacted if he had been aware of the circumstances.9 In a recent exploration of this view, John Gardner maintains that this implies an essential separation between law and justice. Because law must be expressed too generally to map onto absolute justice, “the fact that they ought to be just . . . tells against legal systems being too true to their ruly 7. Id. at 199 [1137b14–17] (reference omitted). 8. Id. at 64 [1094b20–23]. 9. Id. at 199 [1137b20–24]. 36 ALLAN BEEVER natures.”10 He insists that equity permits judges to depart from law in order to realize justice: equity is justice’s rebellion against law.11 In the following, I refer to this as “the doctrine of equitable discretion.” The notion is that Aristotle argues that judges have the authority to depart from legal justice and from legal rules on the basis of equity. According to Gardner, there- fore, Aristotle does not accept the view of legal formalists that “grotesquely self-congratulatory doctrine that law, so long as it remains true to its own distinctive form, cannot but be just.”12 IV. PROBLEMS A. Legal Justice The claim that equity permits judges to depart from legal justice in order to realize absolute justice makes the interpretation of legal justice problematic. What is legal justice? The intuitive answer is that it is the justice enforced in courts of law. But, given the doctrine of equitable discretion, courts of law do not enforce legal justice. Rather, due to the operation of equity, the courts implement absolute justice. What, then, is legal justice? One answer is provided by translating these issues into the language of the common law. According to this view, legal justice is the justice applicable to the common law, equity is the justice applicable to Equity,13 and absolute justice is the result of the combination of common law and Equity. But this solution trades inappropriately on the peculiar meanings of the words “law” and “Equity” in the common law. For common lawyers, “law” and “common law” have two relevant meanings. Speaking roughly, the terms relate either to the decisions of courts minus the application of Equity or simply to the decisions of courts. One might say that law equals law plus Equity. But these distinctions were of no significance in ancient Greece. For Aristotle, “law” cannot refer to what we call law-as-in-law-minus-Equity; rather, it must refer to what we call law-as-in-law-plus-Equity. The conclusion must be that legal justice is not the justice that the law enforces; but without explanation, that is a curious position. A second answer to our question is that legal justice is synonymous with the positive law or perhaps with a coherent account of the positive law. On 10. John Gardner, The Virtue of Justice and the Character of Law, 53 CURRENT LEGAL PROBS. 1, 18 (2000). 11. Id. at 16. At least, this must be Gardner’s argument if it is to connect with the views he intends to attack. For instance, though he rejects Weinrib’s formalism, that theory does not apply to issues such as law reform outside the courtroom. See, e.g., ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 70, 210–211 (1995). For similar interpretations of Aristotle to Gardner’s, see, e.g., Larry A. DiMatteo, The History of Natural Law Theory: Transforming Embedded Influences into a Fuller Understanding of Modern Contract Law, 60 U. PITT. L. REV. 839 (1999); Richard W. Wright, The Principles of Justice, 75 NOTRE DAME L. REV. 1859 (2000); Emily Sherwin, Restitution and Equity: An Analysis of The Principle of Unjust Enrichment, 79 TEXAS L. REV. 2083 (2001). 12. Gardner, supra note 10, at 12. Gardner’s chief target here is Ernest Weinrib. 13. For clarity I capitalize “Equity” when referring to the area of Anglo-American law. Aristotle on Equity, Law, and Justice 37 this view we might say, in the language of the modern common law, that legal justice equates with precedent or with extant legal principle, and the role of equity is to reform the law—through judicial overruling, legislation, and so on—so that legal justice (the positive law) better reflects absolute justice. On this interpretation, it is easy to see why Gardner would regard legal formalism as “grotesquely self-congratulatory.”14 If the form of the law cor- responds to legal justice, and legal justice is identified with the positive law, then the formalist claims that the positive law must be just whatever it is. Clearly, Gardner is right that this is not Aristotle’s view. However, the idea that legal justice equates with the positive law does not sit well with Aristotle’s discussion. For Aristotle, the various kinds of justice are not merely descriptions of beliefs about justice or conventional accounts of virtue. Rather, the kinds of justice are parts of virtue. Accordingly, unless we have good reason to do otherwise, “legal justice” should be read as referring to the way that the law should be, not necessarily to the way that it is. Legal justice is the justice that the law should instantiate. Moreover, it is impossible to understand Aristotle’s claim that legal justice dictates that law be expressed in general terms15 on the reading that legal justice equates with the positive law. Aristotle maintains that, when the law is too general to capture absolute justice, “the law is none the less right; because the error lies not in the law nor in the legislator, but in the nature of the case.”16 But if legal justice was synonymous with the positive law, then surely it would follow that legal justice is at least occasionally inappropriately general. Consequently, the exploration of legal justice must be read as an examination of the natural law and not merely a reflection of the positive law of some society.17 This demonstrates that even were Gardner right to identify the form of the law with legal justice, in an important sense “so long as it remains true to its own distinctive form [the law] cannot but be just.”18 On Gardner’s reading, the law’s form is legal justice, which is a kind of justice according to Aristotle, though it is to some extent deficient.19 More important, if the doctrine of equitable discretion were correct, then it would be unintuitive to regard the form of the law as corresponding to legal justice. For a legal formalist, the law’s form dictates how judges should decide cases.20 Hence, accepting the doctrine of equitable discretion, the 14. Gardner, supra note 10, at 12. 15. Supra note 1, at 199 [1137b20–24]. 16. Id. at 199 [1137b15–20]. 17. Cf. Tony Burns, Aristotle and Natural Law, 19 HIST. POL. THOUGHT 142, 162–166 (1998) (exploring Aristotle’s natural law theory). 18. Gardner, supra note 10, at 12. 19. It may appear incoherent to argue that a kind of justice can be deficient: If it is deficient, then it is not justice. However, it must be recalled that legal justice, like political justice, is the justice relevant to some kind of activity. In Aristotle’s view, the justice relevant to some types of activity may be appropriate to that activity but to some extent inconsistent with absolute justice. See infra, text accompanying notes 43–59, 67. 20. Weinrib, supra note 11, at ch. 2. 38 ALLAN BEEVER form of the law could relate only to legal justice plus equity and not to legal justice alone. On this approach, legal formalism does not appear at all “grotesquely self-congratulatory”;21 ironically, it appears to match Gardner’s own view.22 The above leads to a third answer to our question as to the nature of legal justice. Perhaps the idea is that legal rules should be generated according to legal justice. However, as no rules of any kind can perfectly capture absolute justice, courts are permitted to depart from legal rules when they are incon- sistent with legal justice. This seems to be Gardner’s view in arguing that “the fact that they ought to be just . . . tells against legal systems being too true to their ruly natures.”23 On its face, this asserts that it is in the nature of the law to depart from its own nature. However, Gardner should be taken to mean that courts should not be bound by legal rules, even if those rules equate to justice as closely as it is possible for rules to do. On this view, legal rules are generalizations true for the most part24 and hence are not binding on judges. However, while these “rules” may serve to remind judges of salient moral considerations and may give an appearance of predictability to the law, as they are in no way binding, it seems odd to describe them as legal rules. Moreover, on this view, legal justice is the kind of justice that underlies legal “rules.” But legal rules do not oblige courts of law and hence do not capture the justice that the law actually enforces. Though this is not incoherent, one would have thought that legal justice was more important and had more to do with the decisions of courts than that. I conclude that the interpretation under examination cannot readily ex- plain the nature of legal justice. B. Law and Arbitration The second problem with the notion that Aristotle argues in favor of eq- uitable discretion is the following. Almost immediately after the quotation above, thought to assert that judges may depart from law on the basis of equity,25 Aristotle goes on to say that “[t]his in fact is also the reason why everything is not regulated by law: it is because there are some cases that no law can be framed to cover, so that they require special ordinance.”26 If Aristotle argues for the doctrine of equitable discretion, then it is hard to know what to make of this. Aristotle appears to claim that some areas of human life are ill suited to regulation by law because they are so complex that justice with respect to them cannot be captured by universal principles. 21. Gardner, supra note 10, at 12. 22. Id. at 18. 23. Id. 24. Cf. John McDowell, Virtue and Reason, 62 MONIST 331, 336 (1979) (exploring the nature of moral “rules” in Aristotle’s thought). 25. See supra, text accompanying note 9. 26. Supra note 1, at 200 [1137b28–29]. Aristotle on Equity, Law, and Justice 39 But this is meant to be true of all areas of human life. Moreover, if equity is capable of remedying the law’s inflexibility, then what is the problem? If equity permits judges to depart from legal justice when it is inconsistent with absolute justice, then it should follow that no area of human life is too complex to be regulated by law with a larger or smaller dose of equity.27 However, perhaps Aristotle meant to argue that some areas of human life are so complex that it is impossible to fashion laws with respect to them that approximate justice even for the most part. For an unstated reason, this may be said to lead to the conclusion that law should not regulate in these areas. Hence the suggestion is that Aristotle’s considered position is that it may be appropriate for law to regulate those areas of human life in which justice is capable of being closely approximated by general principle— though general principle will never completely capture justice in any area of life—while law must refrain from regulating those areas of life in which general principle cannot even approximate justice. However, it is worth remembering that this is not what Aristotle actually says. Moreover, it is not clear that the reply succeeds. Rather, the correct conclusion seems to be that in complex areas of life it is equity rather than law that should do most of the actual governing. Hence Aristotle’s conclusion that these areas require governance by “special ordinance” does not follow, as the judicial enforcement of equity is supposed to be de rigueur. For this reason, this reading cannot make sense of Aristotle’s distinction between legal decision-making and arbitration. An “arbitrator goes by the equity of a case, a judge by the law, and arbitration was invented with the express purpose of securing full power for equity.”28 But according to the doctrine of equitable discretion, this is no less true in law. On this view, a judge too goes by the equity of the case: equity trumps. For Aristotle, the distinction between judging and arbitrating involves a difference in kind, but on the view expressed here it is at most a difference in degree. C. Law Is General Principle The above discussion also begs the following question—our third problem: If courts are permitted to depart from legal rules when they conflict with absolute justice, why does Aristotle insist that the law be expressed in terms of general rules? Of course it is possible to invent reasons—for example, to give 27. Of course, there may be reasons other than complexity why the law should not regulate in certain areas: privacy, liberty, etc. This is of no relevance to this argument and is in any event not mentioned by Aristotle. 28. Aristotle,Rhetoric, supra note 1, at 2188 [1374a18–1374b23]. J.A.K. Thompson suggests that when Aristotle refers to judges, he intends arbitrators. ARISTOTLE, ETHICS, supra note 1, at 180, note 2. However, this is mistaken. In contemporary Athens, judges were jurors repre- sentative of the citizenry as a whole, whose role was to enforce law. Arbitration was a separate matter. For instance, in private cases, arbitration was an alternative dispute resolution mecha- nism available to parties who could agree on an arbitrator. RUSS VERSTEEG, LAW IN THE ANCIENT WORLD 203–204, 214–216 (2002). 40 ALLAN BEEVER the law a veneer of predictability—but these arguments are not Aristotle’s. Moreover, in the Politics Aristotle insists: it is impossible that all things should be precisely set down in writing; for enactments must be universal, but actions are concerned with particulars. Hence we infer that sometimes and in certain cases laws should be changed; but when we look at the matter from another point of view, great caution would seem to be required. For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left . . . .29 This caution is in tension with the notion that judges are free to depart from legal rules whenever they generate injustice. First, if the legislator must not alter legislation, even when there is a small advantage in doing so, why is it appropriate for judges routinely to depart from law on the basis of equity? Second, it is not clear why small changes in the law are required at all. If judges may depart from law on the basis of equity, then small, perhaps even large, alterations to the law may effectively be made by judges. Further: The advocates of kingship maintain that the laws speak only in general terms, and cannot provide for circumstances; and that for any science to abide by written rules is absurd . . . . Hence it is clear that a government acting according to written laws is plainly not the best. Yet surely the ruler cannot dispense with the general principle which exists in law . . . .30 Although Aristotle is not expressing his own view as to the desirability of kingship in this passage—Aristotle appears prepared to accept kingship if it is clear that the king is significantly superior in virtue and wisdom to the citizens31—it is clear that Aristotle is of the view that if a society opts for the rule of law rather than the rule of man, then rulers must utilize general principle. But if that is true of the rulers, then surely it must also be true of judges. Moreover, given Aristotle’s supposed attachment to equitable discretion, his claim that the law must be expressed in terms of legal rules seems inco- herent. According to the doctrine of equitable discretion, the law in fact is not capable of being expressed in terms of general rules.32 Certainly, legal rules are capable of being so expressed, but these are mere guidelines, rules of thumb, rather than rules proper. The conclusion seems therefore to be, 29. ARISTOTLE, THE POLITICS AND THE CONSTITUTION OF ATHENS, 49 [1269a10–16] (B. Jowett, trans., 1996) (hereinafter “POLITICS”). 30. Id. at 85–86 [1286a10–16]. 31. Id. at 87 [1286b9–21]. But see ETHICS, supra note 1, at 188 [1134a35–1134b3] (arguing that the rule of law is to be preferred). 32. Remembering that we are not entitled to help ourselves to the jurisdictional distinction between law and Equity. Aristotle on Equity, Law, and Justice 41 despite Aristotle’s explicit claims to the contrary, that law is not capable of being expressed in general principles. D. The Equitable Man Finally, the doctrine of equitable discretion seems inconsistent with Aris- totle’s description of the equitable man. The equitable man “is one who chooses and does equitable acts, and is not unduly insistent upon his rights, but accepts less than his share, although he has the law on his side.”33 The equitable man is one who does not always stand on his rights. But what are his rights? The answer seems to be his entitlements according to legal justice. But that answer is unsatisfactory. If courts enforce absolute justice rather than legal justice, then there is no right to legal justice. The answer implausibly implies that one has a legal right to something that a court will not and should not enforce. Moreover, Aristotle claims that the equitable man has law on his side, rather than on the side of justice. But again, this seems to make sense only if we anachronistically rely on a jurisdictional distinction between law and Equity. We have seen, then, that there are serious problems with the idea that Aris- totle accepts the doctrine of equitable discretion. His view of the relation- ship between equity, justice, and law must be more complex and nuanced than suggested. In the following section, I propose an alternative reading of Aristotle’s view designed to avoid the problems encountered above. V. SOLUTIONS A. Legal Justice If legal justice is not the justice that should motivate judges, then what is it? Despite the tendency of common lawyers to read Aristotle otherwise,34 I submit that his answer is clear: legal justice is the kind of justice appropriate to legislation.35 For Aristotle, then, legal justice applies not to judges but to legislators; it is not a judicial justice but a legislative justice. Hence Aristotle says that equity is: the sort of justice which goes beyond the written law. Its existence partly is and partly is not intended by legislators; not intended, where they have noticed no defect in the law; intended, where they find themselves unable to define things exactly, and are obliged to legislate universally where matters hold only for the most part; or where it is not easy to be complete owing to the endless 33. ETHICS, supra note 1, at 200 [1137b35–1138a3]. 34. See supra note 11. 35. See also John E. Pattantyus, Aristotle’s Doctrine of Equity, 51 MODERN SCHOOLMAN 213, 217 (1974). 42 ALLAN BEEVER possible cases presented, such as the kinds and sizes of weapons that may be used to inflict wounds—a lifetime would be too short to make out a complete list of these. If, then, a precise statement is impossible and yet legislation is necessary, the law must be expressed in wide terms; and so, if a man has no more than a finger-ring on his hand when he lifts it to strike or actually strikes another man, he is guilty of a criminal act according to the written words of the law; but he is innocent really, and it is equity that declares him to be so.36 And when he discusses the role of equity in remedying this error, he main- tains that: when the law states a general rule, and a case arises under this that is ex- ceptional, then it is right, where the legislator owing to the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself would have given if he had been present there, and as he would have enacted if he had been aware of the circumstances.37 The claim, then, is not that law in general—including our common law (here meaning common law as opposed to statute law)—corresponds to legal justice from which judges may depart. Rather, the notion is that leg- islators should be motivated by legal justice, although it is understood that legislation will be overly general: in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is none the less right; because the error lies not in the law nor in the legislator, but in the nature of the case . . . .38 Because of this understanding, judges are permitted to depart from a lit- eral interpretation of legislation when it is clear that such would produce a result that the legislators would not have intended.39 There are two relevant circumstances. First, the legislators may have passed legislation that would produce a result that they would not have intended if interpreted literally in circumstances that they did not consider. Here, Aristotle argues that judges may interpret the legislation more flexibly to reflect the intentions the leg- islators would have had had they turned their minds to such circumstances. Second, the legislators may have known that in a certain circumstances the legislation interpreted literally would work injustice, but may have been 36. Rhetoric, supra note 1, at 2188 [1374a18–1374b23]. 37. ETHICS, supra note 1, at 199 [1137b20–24]. 38. Id. at 199 [1137b15–18]. 39. Cf. ZIVILGESETZBUCH art. 1 (Switzerland). “In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.” The content of legal justice is discussed infra notes 49, 55. Aristotle on Equity, Law, and Justice 43 unable to frame the legislation to avoid this. In such circumstances, Aristo- tle maintains that judges may realize the actual intentions of the legislators rather than their intentions as literally expressed in the legislation. The role of equity in law, then, is to realize the intentions of the legislator not cap- tured by the general principles expressed in the legislation. As we would say, equity directs attention to the spirit rather than to the letter of the law. Note that this does not mean that judges have the power to interpret statutes in the light of absolute justice. Aristotle’s claim is only that judges may attempt to realize the intent of the legislator, given that that intent will not and cannot be captured in the form that legislation must take. This, then, is far from the view that equity is justice’s rebellion against law. B. Law Is General Principle That equity in law is a principle of statutory interpretation also explains Aris- totle’s endorsement for societies governed by the rule of law of the claim that “surely the ruler cannot dispense with the general principle which exists in law.”40 This is not an assertion of a moral principle—an assertion com- pletely unsupported by argument—but rather the following practical point. If a society is governed by more than one person, then a decision-making procedure must be found for determining the decisions that are to govern the society. The content of these decisions cannot be discovered merely by asking any one individual. Hence the decisions must be expressed in some ob- jective manner. In practice, this means that decisions must be expressed in legislation, and legislation must be expressed in terms of general principles, there being no other way of writing it. Seeing that Aristotle’s discussion of equity in law is focused on legislation allows us to solve two of our problems: the meaning of legal justice and the need for law, meaning legislation, to be expressed in terms of general principle. Two problems remain. These are understanding the equitable man and the claim that some areas of life must be governed by arbitration rather than by law. These are solved by shifting our attention away from law. C. The Equitable Man To whom is Aristotle’s discussion of equity directed? The usual answer is that it is directed at the judge: Aristotle is concerned to elucidate appropriate ju- dicial decision-making. No doubt this is one of Aristotle’s aims, as discussed earlier in this section. However, it is not his sole objective. Recall that Aris- totle’s discussion of equity occurs in the context of a examination of virtue. The goal of the Ethics is not to provide a theory of law or of politics (at least as we understand the latter term), but to present an account of how citizens 40. POLITICS, supra note 29, at 86 [1286a15–16]. 44 ALLAN BEEVER should live their lives. The focus, then, is not solely on the role of equity in law but also on its place in ordinary life. In particular, the discussion is concerned with the role equity plays in making a person just. This becomes more apparent if we turn from J.A.K. Thompson’s translation of Aristotle’s passage on the equitable man to Terence Irwin’s. “It is also evident from this who the decent person is; for he is the one who decides on and does such actions, not an exact stickler for justice in the bad way, but taking less than he might even though he has the law on his side.”41 First, note that Irwin chooses the term “decency” rather than “equity,” making clear that the focus is not on judges in courtrooms but on citizens in their daily lives. It is also clear that the equitable or decent man is one who accepts less than the law will give him. This does not mean that he takes less than legislation would have given him were it not for the principles of statutory interpretation (i.e., equity in law). It means what it says: the equitable man is one who sometimes declines to enforce his legal rights. In order to see why this would be, it is necessary to examine further Aristotle’s view of the connection between justice and law. i. Distributive Justice and the Law As indicated above, Aristotle distinguishes between distributive justice and corrective justice. Unsurprisingly, he argues that the content of the former is essentially political. This is because distributive justice relies on a conception of equality that is politically controversial.42 Thus: Everyone agrees that justice in distribution must be in accordance with merit in some sense, but they do not all mean the same kind of merit: the democratic view is that the criterion is free birth; the oligarchic that it is wealth or good family; the aristocratic that it is excellence.43 Accordingly, Aristotle is unable to elucidate the content of distributive justice in the Ethics. That task must await a full exploration of political justice in the Politics. In Aristotle’s view, the aim of politics is to produce virtue and thereby happiness in citizens.44 However, Aristotle recognizes that people disagree as to the content of virtue and happiness; hence people disagree as to the ap- propriate content of politics. Aristotle describes this dispute as conflict over the constitution45 and characterizes the dispute as related to distributive 41. NICOMACHEAN ETHICS, supra note 3, at 84 [1137b35–1138a3]. The interpretation I offer in the following does not rely specifically on this translation, though this translation is more suggestive than others. 42. ETHICS, supra note 1, at 177–178 [1131a20–25]. 43. Id. at 178 [1131a25–29]. 44. POLITICS, supra note 29, at 13 [1252b29–30]. Compare TERENCE IRWIN, ARISTOTLE’S FIRST PRINCIPLES 425 (1988) (arguing that Aristotle’s theory is ambiguous as to whether politics aims for the good of society as a whole or for the good of each individual). 45. The remainder of POLITICS deals with how the constitution is best implemented in practice. Aristotle on Equity, Law, and Justice 45 justice.46 In the Politics, Aristotle elucidates and defends his conception of the best constitution. Nevertheless, Aristotle insists that “the best is often unattainable, and therefore the true legislator and statesman ought to be acquainted, not only with that which is best in the abstract, but also with that which is best relatively to circumstances.”47 Hence, although ideally all states should adopt the best constitution, Aristotle recognizes that this is impractical and that in practice states should adopt the best constitutions they are able to adopt.48 Aristotle also insists that the laws of the state that relate to distributive justice should reflect the constitution as it is rather than an ideal constitution. “[T]he laws are, and ought to be, framed with a view to the constitution.”49 This means that a society’s laws may not and in fact are unlikely to capture absolute distributive justice. Accordingly, with respect to these laws, the eq- uitable man is the one who declines to enforce in his favor the laws that instantiate the constitution’s conception of distributive justice when such enforcement would conflict with distributive justice as it is in fact. For instance, imagine that a state with an oligarchic constitution passes a law that generates an obligation in the poor to serve the wealthy. Assume also that democracy, rather than oligarchy, is consistent with absolute distributive justice. Hence, while the law in question is compatible with the constitution, it is inconsistent with absolute distributive justice. In such circumstances, an equitable wealthy man would decline to enforce that law in his favor. He would do so because, while he recognizes that the law is in accordance with the conception of distributive justice captured in the constitution, he also recognizes that the law is incompatible with absolute distributive justice. Hence he takes “less than he might even though he has law on his side.”50 It is important to note that it does not follow that a judge is permitted to refuse to enforce that law. To do so would be to undermine the notion that a state is governed in accordance with its constitution. Were the equitable man to find himself a judge, he would be obliged to enforce the law.51 ii. Corrective Justice and the Law As indicated above, Aristotle is unable to give an account of the content of distributive justice in the Ethics as he recognizes that that form of justice is inescapably political. On the other hand, Aristotle does provide an account 46. POLITICS supra note 29, at 73 [1280a7–22]; Francisco L. Lisi, The Concept of Law in Aristotle’s Politics, in 16 PROC. BOSTON AREA COLLOQUIUM ANCIENT PHIL., 29, 40–41 (John J. Cleary & Gary M. Gurtler, eds., 2001). 47. POLITICS, supra note 29, at 92 [1288b25–28]. 48. Id. at 92–93 [1288b34–1289a25]. 49. Id. at 92 [1289a13–15]. The constitution, then, determines the content of distributive legal justice. 50. NICOMACHEAN ETHICS, supra note 3, at 84 [1138a2–3]. 51. Similar points have led some to conclude that Aristotle was a legal positivist; see, e.g., Hans Kelsen, Aristotle’s Doctrine of Justice, in WHAT IS JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE: COLLECTED ESSAYS 110, 125–136 (2000). For discussion, see Burns, supra note 17, at 162–166. 46 ALLAN BEEVER of the content of corrective justice in the Ethics. He is able to do so be- cause the concept of equality operative in corrective justice is not politically controversial.52 Hence, for example, “it makes no difference whether a good man has defrauded a bad one or vice versa, nor whether a good man or a bad one has committed adultery; all that the law considers is the difference caused by the injury.”53 Therefore the focus of corrective justice “is restricted and retrospective; it does not consider either the common good, or even the principles of distributive justice, but considers only the harm that has been done and the means of restoring the status quo ante.”54 Accordingly, for Aris- totle, the content of corrective justice is apolitical and does not depend on the constitution.55 Now, Aristotle clearly believes that some areas of law appropriately in- stantiate corrective justice.56 As the content of corrective justice does not depend on politics or on the nature of the constitution, legal justice with respect to those laws that instantiate corrective justice is coextensive with absolute corrective justice. Hence in this area the equitable man cannot be one who declines to enforce his legal rights because he recognizes that they do not correspond to justice in fact. Here, then, an alternative explanation of the equitable man is required. One must recall that corrective justice is only part of justice. Accordingly, the areas of law governed by corrective justice may conflict with distributive justice. Moreover, modern experience has taught us that this conflict will occur frequently. A good example of this clash between the forms of justice can be observed in the decision of the House of Lords in Bolton v. Stone.57 Members of the defendant cricket club were playing against a visiting team when one of the visitors drove the ball out of the ground and onto an adjacent little-used road. The ball struck and injured the plaintiff. The court estimated that a ball was driven out of the ground on average once every five years. The House of Lords ruled that as the chance of injury was so low, the defendant was not negligent. However, the cricket club had paid damages to the plaintiff after it had been found liable in negligence by the Court of Appeal, and the club made no effort to recover those damages after the decision of the House of Lords. This is sometimes taken as evidence that the common law is out of step with justice.58 For Aristotle, this conclusion is simplistic. The common law may be entirely consistent with absolute corrective justice and 52. ETHICS, supra note 1, at 180 [1132a5–6]. 53. Id. at 180 [1132a1–6] (emphasis added). 54. Irwin, supra note 44, at 429. 55. Hence the content of corrective legal justice is absolute corrective justice itself. Note that this does not imply that whether corrective justice or distributive justice should be implemented in any one case is an apolitical question. See Weinrib, supra note 11, at 70, 210–211. 56. ETHICS, supra note 1, at 179–186 [1131b25–1134a15]. 57. 1951 App. Cas. 850 (H.L. 1951). 58. See, e.g., HAROLD LUNTZ & DAVID HAMBLY, TORTS: CASES AND COMMENTARY 196–197 (4th ed., 1995). Aristotle on Equity, Law, and Justice 47 hence with the kind of justice appropriate in this area of the law. However, corrective justice is not all there is to justice, and hence the cricket club may have been acting equitably in not standing on its legal rights and allowing the plaintiff to retain the damages originally paid. Here, then, we may say that the defendant was right (as a matter of distributive justice) to allow the plaintiff to retain the money and the House of Lords was right (as a matter of corrective justice) to find for the defendant and hence allow the defendant (also as a matter of corrective justice) to insist on the return of that money. With respect to this area of law, then, the equitable man is the one guided by justice as a whole rather than by corrective justice alone. As there is no form of justice that stands above distributive justice and corrective justice, the equitable man must judge as to which should rule when those forms of justice come into conflict. In some cases, the equitable man will be prepared to accept less than his share according to law because he recognizes that the law enforces only a part of justice.59 D. Law and Arbitration The above also enables us to resolve our final outstanding problem: the need for arbitration. In Aristotle’s view, law is unfit to govern some areas of human life because justice with respect to those areas cannot be approximated either by general principle, and hence by legislation, or by corrective justice. These are the areas in which distributive justice is most appropriate but cannot be approximated in legislation. In these areas, judges should be replaced by arbitrators who are to rely on their sense of absolute justice. In conclusion, then, equity plays two distinct roles. In law, it enables judges to implement the intent of legislation rather than its literal meaning. Out- side law, it requires citizens to question whether their legal rights are abso- lutely just. It bears little resemblance to Equity in the common law and has nothing to do with rebellion against law. VI. PUBLIC AND PRIVATE LAW The above suggests, though it does not necessarily imply, a neat distinction between public and private law. On this view, private law is based on cor- rective justice, which is independent of distributive justice and politics, and hence could operate outside specific legislation.60 On the other hand, public 59. See also Pattantyus, supra note 35, at 215–216. This argument also applies to the law based on distributive justice. That is, sometimes the equitable man would decline to enforce in his favor a law that correctly instantiates distributive justice, because that law is inconsistent with corrective justice. This follows because there is no relationship of priority between corrective and distributive justice. See infra, text accompanying note 67. 60. ETHICS,supra note 17, at 179–186 [1131b25–1134a15]. 48 ALLAN BEEVER law would be designed to reflect the nature of the constitution and would correspond to the conception of distributive justice captured in the constitu- tion. This would rely predominantly, or perhaps exclusively, on legislation.61 As I now show, an argument for this view is at least latent in Aristotle’s theory. In the Politics, though arguing that aristocracy—the rule of the virtuous— is the ideal form of government, Aristotle also insists that it is unlikely to be realizable in practice.62 This is because aristocracy depends on the abil- ity to determine and promote to power the truly virtuous and because it supposes that there will be agreement on such. Because this is unrealistic, Aristotle settles for polity, a combination of democracy and oligarchy in which decision-making is distributed (unequally) through the citizenry. But if that is so, then it cannot be appropriate for judges to decide matters of distributive justice. Issues of distributive justice are political questions rightly to be decided by political bodies, not by aristocratic judges. In this sense, in court equity is “a mute divinity who cannot be heard.”63 On this view, then, because of its inherently political nature, distributive justice is not an appropriate subject for the courtroom unless embedded in legislation. That argument, however, would not apply to corrective justice, as that form of justice does not rest on political controversial views.64 Accordingly, the judicial enforcement of corrective justice would not amount to judicial aristocracy. VII. ARISTOTLE’S FORMALISM Whether or not the model enunciated in the previous section of this article would have been accepted by Aristotle, the distinction between the kind of law designed to reflect distributive justice and the kind of law based on corrective justice is important in assessing whether Aristotle accepted a version of legal formalism. Clearly Aristotle holds no formalist theory with respect to the creation of law based on distributive justice. Distributive justice possesses a form, but that form generates specific content only in conjunction with a conception of virtue and happiness. But there are many such conceptions, and it is the task of politics to choose between them. However, this does not justify Gardner’s claim that Aristotle rejects the notion “that law, so long as it remains true to its own distinctive form, can- not but be just.”65 This is because, on Aristotle’s view, the kind of law that relates to distributive justice (public law?) should reflect the conception of distributive justice captured in the constitution. Hence, though the form of distributive justice itself cannot generate specific content, in conjunction 61. Burns, supra note 51, at 163; Kelsen, supra note 51, at 133. 62. POLITICS, supra note 29, at bk. IV. 63. Immanuel Kant, The Metaphysics of Morals, in PRACTICAL PHILOSOPHY 353, 391 [6:234] (Mary Gregor, ed., 1996). 64. See supra, text accompanying notes 53–54. 65. Gardner, supra note 10, at 12. Aristotle on Equity, Law, and Justice 49 with a constitution it does do so. In a democratic society, the form of this area of the law will be the form of democratic distributive justice. Hence, in such a society, if the law relevant to distributive justice remains true to its form—namely, democratic distributive justice—then it cannot but be just. Certainly this does not mean that the law is absolutely just, as the democratic conception of distributive justice may be false. Nevertheless, Aristotle insists that this area of the law should reflect the constitution—“the laws are, and ought to be, framed with a view to the constitution”66—and hence even if the constitution is itself unjust, the law is just in the appropriate sense if it re- flects the constitution. In other words, for Aristotle, the appropriate (ideal) perspective from which to evaluate the justice of those laws relevant to dis- tributive justice is not absolute distributive justice but the conception of distributive justice as captured in the constitution. Accordingly, Aristotle’s position at this point is recognizably formalist. On the other hand, Aristotle holds that the appropriate perspective from which to evaluate the justice of the constitution is absolute distributive justice. Unsurprisingly, Aristotle is not a political formalist. I turn now to the area of law governed by corrective justice (private law?). The form of this law is corrective justice, and that form of justice in itself generates specific content. Now, the form of this law is not justice in total but it is a part of justice. Hence in this area too, if the law remains true to its form then it cannot but be just. But is this not a merely Pyrrhic victory? If an area of law instantiates only corrective justice or only distributive justice, then it is not coextensive with justice as a whole. It is, therefore, not really just. However, it is important to remember that distributive and corrective justice are both forms of justice. Aristotle does not argue that there is any priority between the two forms.67 It is not that distributive justice is real justice while corrective justice is only a pale approximation, or vice versa. Nor is the view that there is a higher form of justice of which corrective and distributive justice are elements. Rather, corrective justice and distributive justice are the two forms of justice. Corrective justice, then, is a part of justice, but it is not a partial justice. Hence if the law instantiates corrective justice, then it really is just—not just in all senses of the term “justice,” but nevertheless really just. Similarly, a law that accurately captures distributive justice is genuinely just, though it is unlikely to be consistent with corrective justice and hence is not just in all senses of that term. Note that it is no part of Aristotle’s view—and no part of the view of any modern legal formalist—that the positive law that exists or has existed at any point in time is necessarily just.68 Rather, the claim is that the positive law is to be judged from the perspective of a particular form of justice—corrective 66. POLITICS supra note 29, at 92 [1289a13–15]. 67. See supra note 59. 68. Weinrib, supra note 11, at 195, note 57. 50 ALLAN BEEVER justice or the conception of distributive justice found in the constitution— and hence that a form of justice can be said to underlie the positive law. There is nothing self-congratulatory about this position. It is the view that it is the task of the law—and hence the task of those whose responsibility it is to shape the positive law—to actualize corrective justice or the concep- tion of distributive justice found in the constitution. This is, of course, quite consistent with the view that the positive law in many places fails to instan- tiate these types of justice and is therefore objectionable. The position is self-congratulatory only if “law” and “the form of the law” are anachronisti- cally equated with “positive law.” The criticism, then, involves a positivistic caricature of legal formalism and distorts our understanding of Aristotle’s views. 
work_azregy5nf5ettkvvovcvllmxqa	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221728657 Params is empty 221728657 exception Params is empty 2021/04/06-03:20:25 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221728657 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:25 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_b2cnsvxec5fzxnzzw5e4c2e7xy	----	PROPERTY AND TRANSITIONAL JUSTICE 65 PROPERTY AND TRANSITIONAL JUSTICE Bernadette Atuahene * Transitional justice is the study of the mechanisms employed by communities, states, and the international community to promote social reconstruction by addressing the legacy of systematic human rights abuses and authoritarianism. The transitional justice literature discussing how states can address past civil and political rights violations through truth commissions and international and domestic prosecutions is well-developed compared to the transitional justice literature concerning the redress of past property rights violations. Nevertheless, history is ripe with examples of states and private actors that have systematically and unjustly taken real property from one group and given it to another. The goal of this Article is to further an important conversation about how transitional states can address these past property rights violations to promote social reconstruction. I discuss the strengths and weaknesses of a state’s three main options: (1) maintaining the present property status quo, (2) fully or partially returning to a prior property status quo, or (3) creating a new property status quo altogether. I argue that a state should decide which option to choose through an inclusive public dialogue in which participants are well-informed rather than through a process involving only elites, which, despite being less time-consuming and less costly, would be inadequate in the long run. INTRODUCTION ........................................................................................................................ 66 I. THE HYPOTHETICAL NATION OF NAIKU ....................................................................... 69 II. OPTIONS AVAILABLE TO THE NATION OF NAIKU ......................................................... 73 A. Option One: Maintaining the Present Property Status Quo ............................... 73 B. Option Two: Fully or Partially Returning to a Prior Property Status Quo ......... 74 1. Return to T1 or T2 .......................................................................................... 81 2. Return to T3 .................................................................................................... 83 C. Option Three: Creating a New Property Status Quo ........................................... 84 1. Tax and Transfer ............................................................................................. 84 2. Land Redistribution......................................................................................... 86 * Assistant Professor, Chicago-Kent College of Law, and Faculty Fellow, American Bar Foundation. J.D. 2002, Yale Law School; M.P.A. 2002, Harvard University, John F. Kennedy School of Government; B.A. 1997, University of California, Los Angeles. I would like to thank Cathy Baker, Charlton Copeland, Ewurama Ewusi-Mensah, Sarah Harding, and Carlton Waterhouse, as well as my colleagues who offered valuable feedback when I presented this Article at the Chicago-Kent Faculty Workshop, the 2010 Law and Society Annual Conference, and the Workshop on the Role of Law in Developing Transition Countries at University of Wisconsin, Madison. Stephanie Crawford, Geetu Naik, Matthew Savin, and Shannon Smith provided exceptional research and library assistance, for which I am very grateful. 66 58 UCLA LAW REVIEW DISCOURSE 65 (2010) III. THE PROCESS OF CHOOSING FROM THE AVAILABLE OPTIONS .................................... 89 CONCLUSION............................................................................................................................ 93 INTRODUCTION History is rife with examples of state and private actors systematically confiscating property from one group without consent and without paying just compensation and then transferring that property to another group. I call these actions property dispossession or property theft.1 In some cases, dispos- sessed populations have made resounding cries for reparations during the transitions from the offending regimes to the new political orders.2 During Communism, for example, several Eastern European governments took property from the aristocracy and Nazi sympathizers to distribute it to their peasant popu- lations.3 After the fall of these governments, pre-Communist owners in the Czech Republic, Estonia, Germany, Hungary, Latvia, Lithuania, and Slovakia demanded reparations.4 To placate these constituencies, the transitional gov- ernments had to determine how to address the property dispossession that had occurred during Communism.5 1. It is a violation of human rights to confiscate property without consent and compensation. See Universal Declaration of Human Rights, G.A. Res. 217A, at 74, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) (“No one shall be arbitrarily deprived of his property.”). 2. See infra notes 3–12 and accompanying text for several examples. See also Mark Everingham, Agricultural Property Rights and Political Change in Nicaragua, 43 LATIN AM. POL. & SOC’Y 61 (2001); George Meszaros, Taking the Land Into Their Hands: The Landless Workers’ Movement and the Brazilian State, 27 J.L. & SOC’Y 517 (2000) (describing how the Landless Workers’ Movement used direct action techniques to demand implementation of land reform policies in Brazil). 3. See Rainer Frank, Privatization in Eastern Germany: A Comprehensive Study, 27 VAND. J. TRANSNAT’L L. 809, 812–13 (1994) (noting that from 1945 to 1949, the Soviet Military Administration of Germany confiscated all property holdings that exceeded 250 acres and initiated land reform to benefit “the general good of the working class”); see also Richard W. Crowder, Comment, Restitution in the Czech Republic: Problems and Prague-Nosis, 5 IND. INT’L. & COMP. L. REV. 237, 238 (1994) (noting that from 1945 to 1948, the Czechoslovak government confiscated the land belonging to those “who had collaborated or sympathized with the Nazis during the Second World War”). 4. See Nicolás J. Gutiérrez, Jr., Righting Old Wrongs: A Survey of Restitution Schemes for Possible Application to a Democratic Cuba, 4 U. MIAMI Y.B. INT’L L. 111 (1995) (reviewing restitution programs in the Baltic Republics, Bulgaria, Czech Republic, East Germany, Hungary, Nicaragua, Poland, Romania, and Slovakia); Mariana Karadjova, Property Restitution in Eastern Europe: Domestic and International Human Rights Law Responses, 29 REV. CENT. & E. EUR. L. 325 (2004) (presenting an overview of Eastern European restitution programs). 5. Not all post-Communist countries opted to return to a prior property status quo. See Frances H. Foster, Restitution of Expropriated Property: Post-Soviet Lessons for Cuba, 34 COLUM. J. TRANSNAT’L L. 621, 625–26 (1996) (noting that Russian land reform laws have “prohibited the ‘return of land plots to former owners and their heirs’” and that Tajikistan has enacted similar laws). Property and Transitional Justice 67 Similarly, beginning in 1652, Europeans arrived in southern Africa, estab- lished economic and political dominance, and brutally took ownership of vast swaths of land from the African majority.6 In the 1980s and 1990s, Zimbabwe, South Africa, and Namibia transitioned from white minority rule to majority rule.7 One of the greatest challenges faced by these new African governments was how to help the African population reclaim their stolen land.8 Similar events have taken place in the Middle East. Saddam Hussein’s rise to power culminated in 1979 when he was named president of Iraq. Over the course of his dictatorship, he subjected Kurds to severe discrimination— including unjust confiscation of their property.9 In 2003, American troops ousted Hussein, setting the groundwork for Iraq’s tumultuous political transi- tion in which the Kurds gained significant political power.10 For the Kurds, addressing past property dispossession was a political priority, but choosing the manner in which to proceed proved challenging. Another example of property dispossession is the Rwandan genocide of 1994, in which significant amounts of property were stolen or unwillingly aban- doned by citizens fleeing ethnic violence. In fact, one impetus behind the mass killings was the desire of many Hutus to confiscate Tutsi property.11 When the 6. Alois Mlambo, The Ambiguities of Independence, Zimbabwe 1980–1990, in UNFINISHED BUSINESS: THE LAND CRISIS IN SOUTHERN AFRICA 57, 64 (Margaret C. Lee & Karen Colvard eds., 2003). 7. Id. at 57, 65; Justine Hunter, Introduction to WHO SHOULD OWN THE LAND? ANALYSES AND VIEWS ON LAND REFORM AND THE LAND QUESTION IN NAMIBIA AND SOUTHERN AFRICA 1–6 (Justine Hunter ed., 2004); Cherryl Walker, The Limits to Land Reform: Rethinking “The Land Question”, 31 J. S. AFR. STUD. 805, 805–24 (2005). 8. See Mlambo, supra note 6, at 87, 411. 9. See JOHN FAWCETT & VICTOR TANNER, THE BROOKINGS INSTITUTION—SAIS PROJECT ON INTERNAL DISPLACEMENT, THE INTERNALLY DISPLACED PEOPLE OF IRAQ 10 (2002), available at http://www.brookings.edu/~/media/Files/rc/papers/2002/10iraq_fawcett/iraqreport.pdf (explaining that the al-Anfal operation, which began in 1988, was based on the message that “the regime and its soldiers had a nigh-religious right to take Kurdish property and lives”). 10. See QUIL LAWRENCE, INVISIBLE NATION: HOW THE KURDS’ QUEST FOR STATEHOOD IS SHAPING IRAQ AND THE MIDDLE EAST 235–36 (2008); Edward Wong, Back From Exile, Kurds Demand Political Power and Reparations for Seized Property, N.Y. TIMES, Jan. 19, 2004, at A9 (noting that the Kurds, recently back from exile, strongly demanded political rights and reparations from the transi- tional government). 11. See MAHMOOD MAMDANI, WHEN VICTIMS BECOME KILLERS: COLONIALISM, NATIVISM, AND THE GENOCIDE IN RWANDA 193 (2001) (noting that a pattern emerged in which “[p]refects and burgomasters organized Hutu militants who identified and targeted Tutsi ‘collaborators,’ took over the land of those who were killed or fled, and redistributed it to militants”); GÉRARD PRUNIER, THE RWANDA CRISIS 1959–1994: HISTORY OF A GENOCIDE 248 (1995) (noting that while the desire to acquire Tutsi land was not the primary motivation behind the 1994 mass killings, there was “an element of material interest in the killings . . . . Villagers also probably had a vague hope that if things settled down after the massacres they could obtain pieces of land belonging to the victims, a strong lure in such a land- starved country as Rwanda”); Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis 68 58 UCLA LAW REVIEW DISCOURSE 65 (2010) genocidal killing abated, Paul Kagame seized the reins of power and began the political transition. President Kagame—like many other leaders in times of transition—was forced to ask the recurrent transitional justice question: What can our government do about past property dispossession?12 Transitional justice is the study of those mechanisms employed by communities, states, and the international community to promote social reconstruction by addressing the legacy of systematic human rights abuses and authoritarianism. There is a well-developed transitional justice literature discussing how states can deal with past violations of civil and political rights such as incarceration, murder, sexual abuse, and torture.13 There has also been healthy discussion about the value of truth commissions and international and domestic prosecutions concerning these violations.14 Despite the important experiences of nations in Eastern Europe and Southern Africa, Iraq, and Rwanda that I have discussed, the transitional justice literature on how to address past property rights violations is significantly less developed.15 in Rwanda, 75 N.Y.U. L. REV. 1221, 1249–250 (2000) (noting that some Hutu “pillaged, stole, ransacked, and appropriated property from homes in which Tutsi had been killed or from which they had fled”). 12. PRUNIER, supra note 11, at 332 (noting that post-genocide, the Rwandan government struggled with “property grabbing by the former refugees now coming back from Uganda and Burundi”). 13. See, e.g., 1 TRANSITIONAL JUSTICE: HOW EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz ed., 1995); Kuk Cho, Transitional Justice in Korea: Legally Coping With Past Wrongs After Democratization, 16 PAC. RIM L. & POL’Y J. 579 (2007); Omar Encarnación, Reconciliation After Democratization: Coping With the Past in Spain, 123 POL. SCI. Q. 435 (2008); Saira Mohamed, A Neglected Option: The Contributions of State Responsibility for Genocide to Transitional Justice, 80 U. COLO. L. REV. 329 (2009); Binaifer Nowrojee, Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone’s Rape Victims, 18 HARV. HUM. RTS. J. 85 (2005); Chandra Lekha Sriram, Revolutions in Accountability: New Approaches to Past Abuses, 19 AM. U. INT’L L. REV. 301 (2003). 14. See CHARLES VILLA-VICENCIO & WILHELM VERWOERD, LOOKING BACK REACHING FORWARD: REFLECTIONS ON THE TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA (2000); RICHARD A. WILSON, THE POLITICS OF TRUTH AND RECONCILIATION IN SOUTH AFRICA: LEGITIMIZING THE POST-APARTHEID STATE (2001); Daniel J. Hendy, Is a Truth Commission the Solution to Restoring Peace in Post-Conflict Iraq?, 20 OHIO ST. J. ON DISP. RESOL. 527 (2005); Richard John Galvin, The Case for a Japanese Truth Commission Covering World War II Era Japanese War Crimes, 11 TUL. J. INT’L & COMP. L. 59 (2003); Stephan Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions, 59 LAW & CONTEMP. PROBS. 81 (1996); Margaret Popkin, The Salvadoran Truth Commission and the Search for Justice, 15 CRIM. L.F. 105 (2004); Michael P. Scharf, The Case for a Permanent International Truth Commission, 7 DUKE J. COMP. & INT’L L. 375 (1997); Peter A. Schey, Dinah L. Shelton & Naomi Roht-Arriaza, Addressing Human Rights Abuses: Truth Commissions and the Value of Amnesty, 19 WHITTIER L. REV. 325 (1997); Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 AM. J. INT’L L. 952 (2001). 15. For a few examples of transitional justice literature about past property rights viola- tions, see RETURNING HOME: HOUSING AND PROPERTY RESTITUTION RIGHTS OF REFUGEES AND DISPLACED PERSONS 3 (Scott Leckie ed., 2003); Bernadette Atuahene, From Reparation to Restoration: Moving Beyond Restoring Property Rights to Restoring Political and Economic Visibility, 60 SMU L. REV. 1419 (2007) [hereinafter Atuahene, From Reparation to Restoration]; Bernadette Atuahene, Property Rights and the Demands of Transformation, 31 MICH. J. INT’L. L. 765 (2010); Bernadette Atuahene, Things Property and Transitional Justice 69 In this Article, I explore the effects of past property theft on the current property status quo. The property status quo or property distribution is the existing distribution of property among various racial, ethnic, or religious groups in a society. This status quo is important because property ownership structures group relations. When one group owns a disproportionate amount of property, the resulting asymmetries in social status and economic power can leave weaker groups open to various forms of subordination, which can foster deep resentment that undermines social reconstruction.16 When transitional states have the political will to address past property theft and promote social reconstruction, the enduring question is: How can a transitional state accomplish these goals? The answer to the question is complex and highly contextual. Thus, in Part I, to isolate the key issues that many countries face, I discuss a hypothetical transitional state called Naiku with a historical record that accentuates the challenges at hand. In Part II, I discuss Naiku’s three main options: (1) maintaining the present property status quo, (2) fully or partially returning to a prior property status quo, or (3) creating a new property status quo. In Part III, I argue that when a transitional state is determining the most advantageous option, its decisionmaking process is cru- cial. A state should decide which option to pursue through an inclusive public dialogue with well-informed participants rather than through a less time- consuming, less costly process involving only elites. I. THE HYPOTHETICAL NATION OF NAIKU I have created the hypothetical African state of Naiku to illustrate my argument regarding the redress of past property theft. Three events in Naiku’s history radically transformed the country’s property allocation, and each one led to a new property status quo. The country is now on the cusp of its fourth potentially transformative event. Fall Apart: The Illegitimacy of Property Rights in the Context of Past Property Theft, 51 ARIZ. L. REV. 829 (2009) [hereinafter Atuahene, Things Fall Apart]; Scott Leckie, Housing and Property Issues for Refugees and Internally Displaced Persons in the Context of Return: Key Considerations for UNHCR Policy and Practice, REFUGEE SURV. Q., Iss. 3, 2000, at 5. 16. See Daron Acemoglu & James A. Robinson, A Theory of Political Transitions, 91 AM. ECON. REV. 938, 957 (2001) (finding that high levels of inequality between groups in society lead to political instability); Ruth Hall, A Political Economy of Land Reform in South Africa, 31 REV. AFR. POL. ECON. 213, 214 (2004) (noting the World Bank’s contention that redistributing the land in South Africa was necessary to avert social and political instability); Jaime Crook, Comment, Promoting Peace and Economic Security in Rwanda Through Fair and Equitable Land Rights, 94 CAL. L. REV. 1487, 1490 (2006) (arguing that the Rwandan government must further promote equitable land access through land reform to promote peace and stability). 70 58 UCLA LAW REVIEW DISCOURSE 65 (2010) I. Archeologists have confirmed that the people of the small kingdom of Alim were the first modern humans to occupy the region now known as the country of Naiku. The Alim were farmers who tilled the fertile land. No one owned land, but custom dictated that all had rights to use it according to their needs. Following a sudden boom in the popula- tion of the neighboring nation of Alieu, coupled with a severe drought, the people of Alieu ventured out of their occupied territory in 1810 and conquered the Naiku region, bringing the concept of communal land ownership with them. The Alieu murdered the Alim leadership but incor- porated the Alim people into the Alieu nation as full citizens with equal rights. Under the Alieu property system, the chief formally owned and controlled all land and gave members of the nation use rights according to each family’s needs. In the new Alieu nation, the people of Alim and Alieu lived side-by-side peacefully and intermarried often. II. One hundred years later in 1910, the British arrived, vanquished the nation of Alieu, declared Naiku a colony, and claimed sovereignty over Naiku’s land. They immediately evicted the natives from 90 percent of the land, divided that land into deeded lots, transferred the lots to British settlers and several members of the Alieu nation who cooperated with the British government, and created a land registry to maintain a record of ownership.17 The British settlers were economically and politically dominant from this point on. III. In 1996, the warriors of Alieu united under the leadership of General Abdeena, ousted the British, and won independence for their people. Ab- deena was initially highly respected and hailed as the country’s redeemer, but quickly became unpopular because she ruled with a heavy hand and failed to redistribute land as promised. Instead, without paying just com- pensation and without consent, she expropriated all the deeded lots 17. This situation is similar to that in southern Africa. See Johan van Tooyen & Bongiwe Njobe- Mbuli, Access to Land: Selecting the Beneficiaries, in AGRICULTURAL LAND REFORM IN SOUTH AFRICA: POLICIES, MARKETS AND MECHANISMS 461 (van Zyl et al. eds., 1996) (“Land distribution in South Africa is highly skewed. Approximately 87 percent of agricultural land is held by almost 67,000 white farmers and accommodates a total population of 5.3 million. The remaining 71 percent of the popula- tion, which is predominantly black, live on 13 percent of the land in high density areas—the former homelands.”). The same is true in Namibia and was true in Zimbabwe prior to its tumultuous land reform program in 2002. See Uazuva Kaumbi, Namibia: The Land is Ours!, NEW AFR. Feb. 2004, at 28 (“[L]ess than 10% of the people own more than 80% of the commercial farmland as a result of colonial theft.”); J.S. Juana, A Quantitative Analysis of Zimbabwe’s Land Reform Policy: An Application of Zimbabwe SAM Multipliers, 45 AGREKON 294, 294 (2006) (“During the colonial era, land was distributed on racial lines, with approximately 4,660 large-scale predominantly white commercial farmers owning about 14.8 million hectares and about 6 million black smallholder farmers owning about 16.4 million hectares in mainly low agricultural potential areas.”). Property and Transitional Justice 71 distributed by the British in years prior and transferred over 65 percent of these lots to herself, her family, and her political cronies.18 IV. In 2009, Abdeena was deposed in a bloodless coup, and soon thereafter a new government took power in Naiku’s first democratic election. Layla was elected president, in large part, based on her promise to transform the property distribution. This political transition placed Naiku on the cusp of the fourth event with the potential to drastically transform its property status quo. Most citizens—both black and white—agreed that the present property distribution was unjust because General Abdeena’s corrupt allo- cations of property were patently unfair. But, the corrupt transfers of land made by the general were complicated by the fact that, by 2009, the owners had sold 20 percent of the deeded lots to innocent third parties at market prices. CHRONOLOGY OF LAND OWNERSHIP T1 (pre-1810) T2 (1810) T3 (1910) T4 (1996) T5 (2009) Alim Alim & Alieu British settlers Independence under General Abdeena Democracy under Layla 1st transformation 2nd transformation 3rd transformation 4th transformation? The vast majority of Naiku’s citizens agree that the state must do something about the multiple layers of land dispossession, so there is tre- mendous political will to transform present property arrangements. Today the population of Naiku is as follows: The Alim and Alieu (who are black) constitute about 80 percent of the population, while the offspring of British settlers (who are white) constitute about 10 percent. An additional 10 percent of the population falls under the category of “other” by either claiming both British and African ancestry or some other ancestry altogether. The economi- cally dominant descendants of the British settlers, backed by the British government, are demanding a return to T3—the property distribution that was 18. General Abdeena’s controversial redistribution of property is similar to what happened in Zimbabwe as a result of its fast-track program. See CRAIG RICHARDSON, THE COLLAPSE OF ZIMBABWE IN THE WAKE OF THE 2000–2003 LAND REFORMS (2004); Neil H. Thomas, Land Reform in Zimbabwe, 24 THIRD WORLD Q. 691, 700–02 (2003); INTERNATIONAL MONETARY FUND COUNTRY REPORT NO. 05/359, ZIMBABWE: SELECTED ISSUES AND STATISTICAL APPENDIX 13 (2005) (noting that the lack of transparency has made it difficult to determine who benefited from the land reform by presently residing on confiscated farms). 72 58 UCLA LAW REVIEW DISCOURSE 65 (2010) in place just before independence in 1996.19 Meanwhile, the people of Alim and Alieu—now politically powerful—are demanding a return to T2, the pre- colonial property distribution, or to start anew. A small faction, which traces its ancestry directly back to the Alim, is demanding a return to T1 when the Alim people were the sole inhabitants of Naiku. In the midst of these varied demands and stark uncertainty, one thing is definite: To consolidate the politi- cal transition, Layla’s government must create an efficient yet fair resolution to the multiple layers of land dispossession that have occurred in Naiku. T5 is a crossroads for Naiku because the nation has the opportunity to rec- oncile its past in order to secure its future. There are some constraints, however. A government’s freedom to imagine alternatives is bound by the extant but unwritten rules that transitional states (especially resource-deprived transitional states) must follow to gain acceptance into the new globalized economy. If transitional states do not comply with these rules, they will likely experience a decrease in the bilateral, multilateral, and private sector funding necessary for economic development.20 At least one nonnegotiable rule for acceptance in the globalized economy is the commitment to protecting private property rights and promoting free-market democracy. Naiku’s newly elected government is aware of this requirement but remains determined to create a property distri- bution that the vast majority of its citizens view as legitimate. There are, however, problems with each of Naiku’s past property status quos. General Abdeena’s 1996 land transfers to herself, her family, and her political cronies at T4 was unquestionably unjust; given the short span of time that has passed since then, this injustice still dominates the society’s collective memory. The violent British acquisition of Naiku and the transfer of deeded plots to British settlers and their supporters at T3 were equally illegitimate. Although these events occurred a century ago, the resulting unequal, racially skewed property distribution lasted until 1996 and has been the source of much anger and outrage among the African majority. Consequently, the injustice is fresh in the nation’s collective memory and has proven to be an explosive issue in current Naiku politics. The kingdom of Alim’s defeat, the massacre of its leaders, and expropriation of its land at T2 were similarly unjust. As a result of the lapse of time between the present and T2 (about two hundred years), 19. See, e.g., Cheryl Harris, Whiteness as Property, 106 HARV. L. REV. 1710, 1730 (1993) (arguing that in societies structured around principles of white superiority and racial subordination, white privilege can become a quintessential expectation of that society). 20. See Tony Killick, Conditionality and IMF Flexibility, in THE IMF, WORLD BANK AND POLICY REFORM 253 (Alberto Paloni & Maurizio Zanardi eds., 2006) (noting that the International Monetary Fund imposes conditions to ensure that member states use funds for policies that are consistent with the IMF’s objectives). Property and Transitional Justice 73 these are the only events of dispossession that play a nominal role in the nation’s collective memory and are not politically divisive. Given the complicated history of dispossession and its effects on the present state of affairs, Naiku must carefully decide its path at T5. II. OPTIONS AVAILABLE TO THE NATION OF NAIKU The state’s role in determining ownership patterns is especially pronounced in nations like Naiku where there have been multiple layers of property dispos- session that have created multiple potentially legitimate claims to the same plots of land. In transitional states, the government’s decision to address or ignore past property theft determines who will be considered the legitimate owner of each plot. Naiku’s government has three possible courses of action at T5: (1) maintaining the present property status quo, (2) fully or partially returning to a prior property status quo, or (3) creating a new property status quo altogether. A. Option One: Maintaining the Present Property Status Quo If Layla’s government chooses to maintain the present property status quo, it will look forward and not address the multiple layers of past land dispos- session in Naiku. Instead, her government will rely on the market to place resources in the hands of those who will use them most efficiently. From an efficiency standpoint, who initially owns the property is irrelevant because the properties will end up in the hands of those who value them most highly, if transaction costs are low.21 Thus, following the examples of Namibia, South Africa, and Zimbabwe in their transitions to democracy, Naiku can allow current trade and investment to continue unencumbered by giving current landowners clear title to their property despite how it was acquired.22 Maintaining the present property status quo ensures that investment and trade are not attenuated by protecting existing investment-backed expec- tations, including the expectation that innocent third parties who bought property during T4 at market rates will retain rights to that property without fear of expropriation. This option also requires the least bureaucratic interven- tion, consequently making it the least vulnerable to government failure, which “arises when government has created inefficiencies because it should not have 21. See RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY 6 (2001) (“The ‘Coase Theorem’ holds that where market transaction costs are zero, the law’s initial assignment of rights is irrelevant to efficiency, since if the assignment is inefficient the parties will rectify it by a corrective transaction.”). 22. A.J. Van Der Walt, The Constitutional Property Clause: Striking a Balance Between Guarantee and Limitation, in PROPERTY AND THE CONSTITUTION 109, 111–12 (Janet McLean ed., 1999). 74 58 UCLA LAW REVIEW DISCOURSE 65 (2010) intervened in the first place or when it could have solved a given problem or set of problems more efficiently.”23 One central flaw is that maintaining the present status quo legally legitimizes a patently unfair land distribution. Before General Abdeena was deposed, she titled a vast amount of land to herself, her family, and her political cronies; consequently, the vast majority of citizens view present-day ownership patterns as illegitimate. Most importantly, this commonly held view of the cur- rent property distribution has engendered a great amount of societal resentment and anger. Layla’s government must ensure that this discontent is channeled in an orderly manner through existing social, legal, and political institutions; oth- erwise, the country risks economic-based political turmoil.24 Even if maintaining the current status quo is the most economically efficient option, Layla’s gov- ernment should choose a different option to avoid economic-based political turmoil.25 B. Option Two: Fully or Partially Returning to a Prior Property Status Quo The second option Naiku has at T5 is to fully or partially return to a prior property status quo by taking the present property distribution as a starting point and using its powers of eminent domain to make land available for return to past owners.26 If significant time has passed, and the state can no longer identify the beneficiaries of past unjust transfers, then it must provide the funds to purchase property from its general coffers. If, however, the beneficiaries of past unjust transfers are readily identifiable, the state can require them to fully or partially finance the return of property.27 23. CLIFFORD WINSTON, GOVERNMENT FAILURE VERSUS MARKET FAILURE: MICROECONOMICS POLICY RESEARCH AND GOVERNMENT PERFORMANCE 2–3 (2006). 24. For a detailed discussion of disobedience resulting from past property theft, see Atuahene, Things Fall Apart, supra note 15. 25. See Mark J. Roe, Essay, Backlash, 98 COLUM. L. REV. 217, 217 (1998) (“Voters may see market arrangements as unfair, leading them to lash back and disrupt otherwise efficient arrangements. To quell this backlash, inefficient legal structures may arise and survive, despite the fact that they could not withstand a normal efficiency critique. The prospect of backlash—or of strategically tempering otherwise efficient rules and institutions to finesse away a more destructive backlash—complicates a law and economics inquiry.”). 26. This is the decision that the South African transitional government made. See Matthew Chaskalson, Stumbling Towards Section 28: Negotiations Over the Protection of Property Rights in the Interim Constitution, 11 S. AFR. J. HUM. RTS. 222, 229–38 (1995) (providing an insider’s view of the pre-liberation negotiation that led to the constitutional property clause, which protected existing property rights). 27. This is what happened in the Netherlands after World War II. See Wouter Veraart, ‘Reasonableness’ or Strict Law? The Postwar Restitution of Property Rights in the Netherlands and in France (1945–1952), in YAD VASHEM—THE INTERNATIONAL CONFERENCE ON CONFRONTING HISTORY: THE HISTORICAL COMMISSIONS OF INQUIRY (2002) (on file with UCLA Law Review) (noting that the strict restitution law in France made it easier for former owners of property to get their land Property and Transitional Justice 75 To implement this option, Naiku can use two types of redistributive programs: reparations or restoration. Reparations programs are designed to vindicate past property rights.28 In a reparations program, if property was confis- cated unjustly, then the dispossessed have a window of time to file claims. These claims are vetted through a judicial or administrative process to determine whether compensation is warranted. A defining feature of reparations programs is that the beneficiaries do not have a great deal of choice in what they receive; they usually receive either land restitution or money as compensation. Restoration is also a specific type of redistributive program designed to vindicate a past property right.29 As with reparations, the state determines the process for accepting, validating, and paying restoration claims, but resto- ration is distinct from reparations on two counts. The first point of distinction concerns who is eligible to become a beneficiary. In a restoration program, beneficiaries must be subject to property-induced invisibility in order to qualify. As I have previously argued,30 in certain situations, dispossession involves more than the confiscation of property; it involves the removal of an individual or community from the social contract. I call this property-induced invisibility and use the work of John Locke, Carole Pateman, and Charles Mills to provide a clear definition.31 Property-induced invisibility is defined as: the widespread or systematic confiscation or destruction of real property with no payment of just compensation executed such that dehumani- zation occurs; the act is perpetrated by the state or other prevailing power structure(s), and adversely affects powerless people or people made powerless by the act such that they are effectively left economically vulnerable and dependent on the state to satisfy their basic needs. 32 For example, if a colonial government impoverished my father by confiscating his property during T3 and subjected him to property-induced invisibility, he would qualify for compensation. But, if my father has passed away and my siblings and I have become well-off, then we would not qualify for compensation back because the judge was obliged to acknowledge the nullity of any transaction of property performed after the original owner had lost his right to dispose of it, meaning that all the transactions performed by so- called administrators were null and void and had to be undone). Southern Africa does not have this luxury because the identity of wrongdoers is not as clear as it was in the Netherlands due to the passage of time between the wrongful act and rectification. 28. See generally Emma Coleman Jordan, The Non-Monetary Value of Reparations Rhetoric, 6 AFR.- AM. L. & POL’Y REP. 21 (2004) (discussing the importance of reparations for black Americans and potential challenges to reparations). 29. See Atuahene, From Reparation to Restoration, supra note 15. 30. Id. 31. Id. 32. Id. 76 58 UCLA LAW REVIEW DISCOURSE 65 (2010) from the state because we do not meet the last condition of restoration: We are not economically vulnerable and dependent on the state to meet our basic needs. In contrast, under the reparations paradigm, the current financial position of the dispossessed person or her descendants is irrelevant, so my siblings and I would qualify for compensation despite our elevated socioeconomic standing. The second point of distinction between reparations and restoration programs is what the beneficiaries receive. When the confiscation of a commu- nity’s or individual’s property causes property-induced invisibility, the state’s objective should not be simply to compensate them for the stolen property; the need is more profound. The state’s objectives should be to bring them into the social contract, to restore their visibility, and to affirm their humanity. A state can accomplish these objectives by giving the dispossessed a choice.33 It is important to allow those subject to property-induced invisibility to partici- pate in determining their compensation in order to give them control over the terms of their reentry into the body politic and affirm their humanity. The choices may include: the return of the confiscated property; the grant of alternative property if the original property is no longer available; financial compensation; or a variety of in-kind benefits, such as subsidized credit, free higher education or vocational training for two generations, or urban housing rights. 34 In contrast, the focal point of a reparations program is not providing the victim with a choice. Regardless of whether a state implements a reparations or a restoration program, to return to a prior property status quo, it must surmount six potential roadblocks. The first hurdle involves identification of program beneficiaries. When those who were originally dispossessed have died, it can be difficult to identify who should receive compensation in their stead. Some may argue that once the dispossessed person dies, his or her claims die as well. Others argue that a debt is not extinguished upon death. Instead, the debt is owed to the deceased’s estate; and so should be the case with debts arising from dispossession. If individuals of Alim and Alieu descent successfully prove that their ancestors were dispossessed during T3, then the heirs of the dispossessed should receive compensation. But, identifying heirs can be extraordinarily diffi- cult when a significant amount of time has passed between the event of 33. Id. at 1447–50 & n.102. 34. Unrestricted cash grants will not necessarily be the best form of compensation in the group context. See, e.g., Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 391 (1987) (noting that appropriate reparations might include “[m]oney for education, housing, medical care, food, job training, cultural preservation, recreation and other pressing needs of victim communities [that] will raise the standard of living of victim groups, promoting their survival and participation”). Property and Transitional Justice 77 dispossession and the moment of compensation. With each generation, the number of heirs increases exponentially, and the state will require complicated family trees to identify them. If the Alim and Alieu community is intact, however, it can make a community claim for compensation.35 This approach is more akin to a living victim making a claim because the community transcends the lives of its indi- vidual members and endures through time. The compensation would go to the collective for the betterment of all its members.36 All people of African descent whose ancestors were born in Naiku are part of the Alieu nation that existed at T2. Due to frequent intermarriage, a return to T1 (when the Alim were the sole occupants of the land) would be almost impossible because the Alim are no longer a distinct community. The second challenge to implementing a reparations or restoration program is obtaining verifiable proof of prior ownership or occupation. Produc- ing a deed or other official written document would be the simplest way to prove ownership or occupation, but there were no deeds in Naiku until the advent of the Europeans at T3. Nevertheless, if the nation of Naiku desires to restore rights in existence prior to T3, it can accept diverse forms of evi- dence to prove that an individual or community had a right to a particular plot of land, as South Africa did in its land restitution program.37 South Africa relied upon a variety of forms of evidence, including documents in the national archives, physical evidence such as graves or ruins that indicated occupation, and oral evidence such as testimony concerning ownership or occupation from the claimant verified against testimony from other occupants or their descen- dants who lived nearby.38 But, despite a state’s willingness to use diverse forms of evidence, the undeniable reality is that verifying who owned or occupied 35. Mark Everingham & Crystal Jannecke, Land Restitution and Democratic Citizenship in South Africa, 32 J. S. AFR. STUD. 545, 548 (2006) (describing the political role of claimant communities in South Africa); Lewis P. Hinchman & Sandra K. Hinchman, Australia’s Judicial Revolution: Aboriginal Land Rights and the Transformation of Liberalism, 31 POLITY 23, 23–51 (1998) (describing the progressive acceptance of aboriginal land claims on behalf of a community). Adrien K. Wing, Communitarianism v. Individualism: Constitutionalism in Namibia and South Africa, 11 WIS. INT’L L.J. 295, 299 (1993) (emphasizing the importance of communitarianism in both South Africa and Namibia). 36. The extensive litigation involving the U.S. cigarette industry is a testament to the fact that uncertainty over the exact identity of victims and their heirs is not an insurmountable barrier. Courts used “[s]tatistical, pro rata distribution of damages” to cure “the problem of indeterminate defendants and indeterminate [victims].” Kaimipono David Wenger, Causation and Attenuation in the Slavery Reparations Debate, 40 U.S.F. L. REV. 279, 313 (2006). 37. Interview With Daniel Jacobs, Assistant Dir., Comm’n on the Restitution of Land Rights (Mar. 15, 2008). 38. Id. 78 58 UCLA LAW REVIEW DISCOURSE 65 (2010) land becomes more difficult as time passes because, for instance, people who can provide oral evidence to confirm ownership eventually die. The third hurdle in fully or partially returning to a prior status quo is acknowledging people who never owned anything in the past. Before the state makes a decision to reinstitute a prior property status quo, there must be a national consensus that the previous arrangement was significantly more legitimate than the present one. This consensus will be informed by a nation’s memory of the past as kept alive through historical texts, oral traditions, and popular culture. Nevertheless, even if there is a consensus, the prior status quo had various imperfections and those imperfections will be restored. Con- sequently, restoring a past property status quo can serve to resurrect a former aristocracy and to exclude those who never owned property in the past. Option three, which I discuss in the following Subpart, addresses this concern directly through a full-scale redistribution of wealth. In the alternative, to address the needs of people who are currently poor and have never owned property in the past, a state can implement a restoration or reparations program in concert with significant redistribution effected through the tax and transfer system, as demonstrated in South Africa.39 The fourth challenge to returning to a prior property status quo is the uncertainty that results from using eminent domain. When returning property to prior owners, the state should use eminent domain and pay existing owners just compensation. The determination of just compensation should use the fair market value as the starting point but must also take into consideration factors such as the conditions of acquisition, acquisition price, and any state subsi- dies from which the owner benefited.40 Using eminent domain to restructure 39. STEPHEN GELB, EDGE INST., INEQUALITY IN SOUTH AFRICA: NATURE, CAUSES AND RESPONSES 55 (2003), available at http://www.sarpn.org/documents/d0000671/P686-Gelb_Inequality _in_SA.pdf (describing South Africa’s social service spending). 40. The fifth hurdle in fully or partially returning to a prior property status quo or creating a new property status quo altogether is this involves government-led redistributive efforts that are highly suscepti- ble to government corruption, inefficiency and ineptitude. See supra note 23 and accompanying text. As it stands, transitional states characteristically have weak administrative institutions that are particularly sus- ceptible to corruption, bureaucratic inefficiency, and lack of transparency. The South African Constitution provides that “the amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including: (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.” S. AFR. CONST. 1996 § 25; see also Ex Parte Former Highland Residents; In Re Ash and Others v. Dep’t of Land Affairs 2000 (2) All SA 26 (LCC) (S. Afr.) (stating that for determining just and equitable compensation, equitable balance required by the constitution will in most cases be best achieved by first determining the market value of the property and then subtracting from or adding to the amount of the market value, as other relevant circumstances may require). Property and Transitional Justice 79 property rights promotes fairness to all groups, including nonindigenous people who immigrated to Naiku in the last one hundred years and at no point bene- fited from any unjust past land transfers. The downside of using eminent domain is that it can cause uncertainty and dampen investment. Jahangir Saleh notes that “[u]ncertainty of expropriation affects the uncertainty of returns and tends to discourage investment for risk-averse decision makers.”41 This uncer- tainty begins when the redistributive program is announced (or when the public believes that it has a high probability of being implemented) and ends when the new owners of the land are determined.42 Once the uncertainty ends, trade and investment are no longer affected unless the government does not make a credible promise that the transformation is a one-time ordeal.43 The sixth and most formidable hurdle in returning to a prior property status quo is answering the question: How far back? That is, a reparations or restoration program rectifies property rights violations that occurred during a specific time period, and the state must determine the eligible time period. This is a daunting question for nations like Naiku that have experienced multiple layers of property dispossession. Should Naiku’s program compensate people for property rights violations that occurred from 1910 to 2009 (includ- ing only T3 and T4) or from 1996 to 2009 (including only T4)? Or should the state include all violations that have occurred since 1810 (the period encom- passing T2, T3, and T4)? Numerous countries have dealt with these hard questions. In 1994, after the fall of apartheid in South Africa, the new political dispensation contended with apartheid-era land theft by enacting the Land Restitution Act, which instructs the state to compensate individuals and communities for a “right in land or portion of land dispossessed after 19 June 1913 as a result of past 41. Jahangir Saleh, Property Rights Institutions and Investment 7 (World Bank Policy Research, Working Paper No. 3311, 2004); see also Stein Holden & Hailu Yohannes, Land Redistribution, Tenure Insecurity, and Intensity of Production: A Study of Farm Households in Southern Ethiopia, 78 LAND ECON. 573, 575 (2002) (finding an inverse relationship between the willingness of farmers to invest in long-term improvements on their land and the perception of insecurity based on land reform in flux in Ethiopia). 42. Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 HARV. L. REV. 761, 785 (2004) (“If all claims are immediately recognized and announced to the world, then both losers and winners will know the extent of their existing property rights, and they will invest and trade accordingly.”). 43. Id. (“As this description suggests, the amount of uncertainty {in investment} is a decision variable. A state can reduce uncertainty by requiring that all claims be filed within six months, as Czechoslovakia did, and by using expedited procedures . . . . If all claims are immediately recognized and announced to the world, then both losers and winners will know the extent of their existing property rights, and they will invest and trade accordingly.”). 80 58 UCLA LAW REVIEW DISCOURSE 65 (2010) racially discriminatory laws or practices.”44 Similarly, in the Balkans prior to the NATO bombing of the region in 1999, thousands of Kosovo Albanians were forced to flee their homes due to a Serbian-led ethnic-cleansing campaign.45 The interim U.N.-led civilian administration (the United Nations Mission in Kosovo or UNMIK) enacted a reparations program that gave any person who was dispossessed of a property right as a result of discrimination between March 23, 1989, and March 24, 1999 a right to restitution in kind or compensation.46 In Germany, the government enacted the Law on Settlement of Open Property Questions in September of 1990, which permits return of property that was expropriated by the East German government after 1949 as well as property expropriated by the Nazis between January 30, 1933, and May 8, 1945.47 In 1991, the Hungarian government enacted the First Compensation Law for owners subject to Communist-era expropriations;48 and in 1992, the gov- ernment passed the Second Compensation Law, which mandates compensation for Jews dispossessed by Nazi Germany and ethnic Germans expelled from Hungary in the wake of the Nazi retreat.49 Australia’s reparations program— instituted by the Aboriginal Land Rights (Northern Territory) Act of 1976—set aside a twenty-year period (1976–1996) during which the state allowed abo- riginal people to make a collective property claim to crown land that had been stolen from them during conquest.50 Like many countries before it, Naiku must also decide which property violations it will rectify. It can return to the property status quo that existed 44. Restitution of Land Rights Act 22 of 1994, as amended by Act 48 of 2003, § 2(1) (S. Afr.); see also S. AFR. CONST. 1996 § 25(7) (“A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.”). 45. NOAM CHOMSKY, ROGUE STATES: THE RULE OF FORCE IN WORLD AFFAIRS 34 (2000) (describing the situation in Kosovo prior to the NATO bombings). 46. On Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission, U.N. MIK Reg. No. 2000/60, § 2.2 (Oct. 31, 2000). 47. See Jessica Heslop & Joel Roberto, Property Rights in the Unified Germany: A Constitutional, Comparative, and International Legal Analysis, 11 B.U. INT’L. L.J. 243, 257 (1993). 48. See generally ISTVAN POGANY, EUROPE AND CHANGE: RIGHTING WRONGS IN EASTERN EUROPE 155–65 (1997) (describing property restitution and compensation schemes in Hungary). 49. See Gutiérrez, supra note 4, at 130–34. 50. If an aboriginal group was able to prove traditional ownership, it was entitled to receive an inalienable freehold title held by a corporate land trust. See Hinchman & Hinchman, supra note 35, at 23, 36–37 (stating how the Aboriginal Land Rights (Northern Territory) Act, 1976 (Austl.) was a radical departure from Milirrpum v. Nabalco Pty. Ltd. (1971), 17 F.L.R 141, which required an economic attachment to the land in order to make a property claim. Also, most claims were exceedingly difficult to establish, and by the end of the twenty-year period, aboriginal people possessed 43 percent of the northern territory (where 15 percent of the Australian aboriginal population lived)). Property and Transitional Justice 81 at T1, T2, or T3, each of which has its own specific virtues and vices, which I review below. 1. Return to T1 or T2 The most compelling argument for returning to T1 is the principle of first possession: first in time, first in right.51 The Alim are the first known human inhabitants of the land and are the only group in present-day Naiku to have an indisputable claim to just acquisition. But, an addendum to the first-in-time principle is Locke’s labor theory, which posits that being first to occupy is not sufficient to constitute ownership because land ownership results only when labor is mixed with the land.52 Under Locke’s labor theory, the Alim owned, and thus only have a potential claim to, lands that were under cultivation or being used in other productive ways. Similarly, the virtue of returning to T2 is that at T2, both the Alim and Alieu occupied the land on an equitable basis because the chief distributed land fairly according to each family’s needs. There are, however, specific obstacles to returning to T1. It has been about two hundred years since the Alim exclusively inhabited Naiku in T1 and just less than one hundred years since the Alieu nation ruled in T2. Due to consistent intermarriage, the two communities are no longer distinct, so returning to T1 is logistically impossible. But, since the Alieu community endures, a community claim is appropriate, and all present members would bene- fit from the compensation distributed by Layla’s government. In contrast, with individual or family claims (or claims of an extinct community), the original claimants are deceased, so the beneficiaries are their heirs, who are potentially numerous and difficult to locate. Consequently, given the significant passage of time, a return to T2 is logistically possible only because the Alieu nation is a surviving, functional entity that can identify its members and distribute com- pensation for the betterment of all. Even if a return to T1 were logistically possible, it is not clear whether it would be a morally appropriate solution. Jeremy Waldron’s supersession thesis argues that circumstances change such that what was rightfully owned at one 51. See, e.g., JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 3 (5th ed. 2002) (discussing acquisition of property by first possession or “[f]irst come, first served.”). See generally Lawrence Berger, An Analysis of the Doctrine That “First in Time Is First in Right”, 64 NEB. L. REV. 349 (1985) (discussing first possession as the dominant method of establishing property rights and its continued relevance, and examining cases in which first possession is the dominant rule). 52. See JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 18 (C.B. Macpherson ed., Hackett Publishing 1980) (1690). 82 58 UCLA LAW REVIEW DISCOURSE 65 (2010) point may not be rightfully owned at a later time.53 He reasons, for example, that if someone steals another person’s car, this is a continuing injustice, so compensation provided for the car is not meant to rectify something that hap- pened in the past, but rather to address a present ongoing injustice.54 Waldron tempers his claim by acknowledging that various circumstances erode even continuing entitlements. Consider, for instance, two communities— M and O. Each community has its own water source; thus, M has a moral right to exclude O from using M’s water source, and O has a moral right to exclude M from use of O’s water source. But if a drought dries up M’s water source, then O no longer has a moral right to exclude M because the exclusion could lead to mass suffering and death in the M community. Even if M invaded O’s waterhole by force prior to the drought, once M’s water source has dried up, M has a moral right to continue using O’s well because it is immoral to deprive someone of something necessary for her survival. Consequently, the initial injus- tice perpetrated against O (that is, the invasion) is superseded by circumstance (the drought).55 In the case of Naiku, the Alim owned land at T1, a time of plenty. At T2, drought and population explosion caused land scarcity—the impetus behind the Alieu nation’s attack on the Alim in 1810. Thus, according to the supersession thesis, subsequent circumstances superseded and morally justified the Alieu’s use of Alim lands. According to the supersession thesis, returning to the property status quo at T1 and making the Alim the exclu- sive beneficiaries of the reparations or restoration program would therefore be morally unjust. Returning to T2 also has it problems, namely evolving land ownership systems. In Naiku, land was not owned individually in fee simple until T3 when the British arrived, divided the land, and deeded each plot. Under the Alieu nation at T2, the chief owned all the land and parceled it out to his subjects according to their needs. The system introduced by the British, however, persists today, so a return to T2 would be problematic because a 53. Jeremy Waldron, Settlement, Return, and the Supersession Thesis, 5 THEORETICAL INQUIRIES L. 237, 245 (2004) (“[I]n certain sequences of circumstances, dispossession may not continue to count as an injustice even though the events that led to it undoubtedly were an injustice. And if the dispos- session does not continue to count as an injustice, then reversion cannot be conceived as an appropriate remedy.”). 54. See id. at 246 (“Justice may make reference to the past, through principles of desert and Lockean entitlement; but its primary focus is on the present—present-day people, present-day resources— and on the circumstances of the present inasmuch as they affect who should get what.”). 55. See Jeremy Waldron, Superseding Historic Injustice, 103 ETHICS 4, 23 (1992) (“If, for example, P acquires an oasis in conditions of plenty, she acquires (i) a right to use it freely and exclude others from its use so long as water remains plentiful in the territory, and (ii) a duty to share it with others on some fair basis if ever water becomes scarce. The right that is (permanently) acquired. . . is thus circumstantially sensitive in the actions it licenses.”). Property and Transitional Justice 83 different land ownership structure existed then. One way to reconcile the dif- ferent land ownership systems would be to treat occupancy rights at T2 as ownership rights in fee simple for purposes of the restoration or reparations program.56 This is what the South African state did in its reparations efforts, for example. 2. Return to T3 A return to T3 is the most logistically feasible option if the state intends to compensate individuals rather than groups. When the British arrived in 1910, they introduced a property system based on written deeds and a land registry system. Therefore, determining who owned which parcel of land after T3 would not be nearly as challenging as returning to the period before British conquest. Also, since British settlers were dispossessed in 1996, concerns about identifying who should receive compensation are attenuated because most owners are still alive; if they are not, it will be simpler to track down their heirs than the heirs of those who passed away one hundred or more years ago. The primary downside of returning to T3 is the unfairness of the extant property distribution. T3 marked the advent of colonialism, which forced Africans into economic and political subordination. Returning to T3 would ignore the injustices of colonialism, cement the consequent illegitimate eco- nomic gains accrued by whites, and likely erect a permanent color hierarchy in Naiku. Most importantly, the African majority could resist (if not violently rebel against) a return to T3 because that property status quo was unfair and illegitimate. Leonid Polishchuk argues that “if private property rights are not sufficiently broadly recognized in the society as legitimate and fair, it makes the property rights regime unstable. This instability precludes efficient relocation of assets, and as a result expected efficiency gains of private ownership fail to materialize.”57 If Naiku wants its system of private property to thrive, the option of returning to T3 is not feasible. 56. See South Africa Extension of Security of Tenure Act 62 of 1997 (S. Afr.) (providing that the right in land “may have been established by occupation of the land for a substantial period. It is not limited to a right recognized by law. It is not limited to ownership rights, and it may include certain long-term tenancy rights and other occupational rights”); DEP’T OF LAND AFFAIRS, S. AFR., WHITE PAPER ON SOUTH AFRICAN LAND POLICY (1998). 57. Leonid Polishchuk, Distribution of Assets and Credibility of Property Rights (Mar. 2, 2009) (unpublished manuscript on file with author). 84 58 UCLA LAW REVIEW DISCOURSE 65 (2010) C. Option Three: Creating a New Property Status Quo If implemented correctly, creating a new property status quo has the poten- tial to level the playing field, to equalize wealth, and to promote stability.58 The state can implement wealth redistribution through the tax and transfer system or by redistributing real property through land equalization, a concept that I develop in this Subpart. 1. Tax and Transfer Louis Kaplow and Steven Shavell argue that “redistribution through legal rules offers no advantage over redistribution through the income tax system and typically is less efficient.”59 Through the tax and transfer system, the government can broadly reallocate wealth from more financially astute citizens to those with greater financial vulnerability. Redistribution through taxation could include wealth in the form of real, personal, and intangible property, which would allow Naiku to move beyond the narrow problem of land dispossession and to address the larger problem of asset inequality. This is a particularly attractive remedy for nations that have moved from an agrarian-based economy, in which 58. There is a vast body of literature confirming that land reform can increase economic growth and decrease the potential for instability. See SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES (2006); RUSSELL KING, LAND REFORM: A WORLD SURVEY (1977); ROY L. PROSTERMAN & JEFFREY M. RIEDINGER, LAND REFORM AND DEMOCRATIC DEVELOPMENT (1987); Daron Acemoglu et al., Reversal of Fortune: Geography and Institutions in the Making of the Modern World Income Distribution, 117 Q.J. ECON. 1231 (2002); Daron Acemoglu et al., The Colonial Origins of Comparative Development: An Empirical Investigation, 91 AM. ECON. REV. 1369 (2001); Timothy Besley & Robin Burgess, Land Reform, Poverty Reduction, and Growth: Evidence From India, 115 Q.J. ECON. 389 (2000); Klaus Deininger & Lyn Squire, New Ways of Looking at Old Issues, 57 J. DEV. ECON. 259, 287 (1998); Edmundo Flores, Issues of Land Reform, 78 J. POL. ECON. 890 (1970); Herschel I. Grossman, Production, Appropriation, and Land Reform, 84 AM. ECON. REV. 705 (1994); T. David Mason, “Take Two Acres and Call Me in the Morning”: Is Land Reform a Prescription for Peasant Unrest?, 60 J. POL. 199 (1998); Karl Ove Moene, Poverty and Landownership, 82 AM. ECON. REV. 52 (1992); Edward N. Muller et al., Land Inequality and Political Violence, 83 AM. POL. SCI. REV. 577 (1989); Bruce M. Russett, Inequality and Instability: The Relation of Land Tenure to Politics, 16 WORLD POL. 442, 453 (1964) (arguing that land reform and stability in underdeveloped countries is a necessary component, though not a guarantee, of political stability); Klaus Deininger & Pedro Olinto, Asset Distribution, Inequality, and Growth (World Bank Policy Research Working Paper No. 2375, 2000); Klaus Deininger & Songqing Jin, Land Rental Markets as an Alternative to Government Reallocation?: Equity and Efficiency Considerations in the Chinese Land Tenure System 22 (World Bank Policy Research Working Paper No. 2930, 2002); Klaus Deininger, Songqing Jin & Hari K. Nagarajan, Land Reforms, Poverty Reduction, and Economic Growth: Evidence From India 1 (World Bank Policy Research Working Paper No. 4448, 2007). 59. Louis Kaplow & Steven Shavell, Why the Legal System Is Less Efficient Than the Income Tax in Redistributing Income, 23 J. LEGAL STUD. 667, 667 (1994). Property and Transitional Justice 85 access to land is vital, to an industry- or services-based economy, in which access to land is less important.60 Taxation is not a perfect solution, however. First, many transitional states have weak tax bureaucracies that are not effectively able to collect taxes and to transfer them to beneficiaries in the form of cash payments or social pro- grams.61 Second, higher taxation gives the wealthy an incentive to transfer wealth outside of the country and can dampen the incentives to create wealth domestically.62 Third, while a reparations or restoration program mandates a one-time asset transfer to beneficiaries, tax and transfer programs redistribute wealth gradually, leaving beneficiaries vulnerable to changing political winds over time.63 Layla’s government has an incentive to announce a substantial tax and transfer program to quell present discontent concerning land inequality. But, while her political administration may be genuinely committed to cor- recting past wrongs using redistributive programs, future administrations may neglect such programs or cancel them altogether.64 This is the problem of time inconsistency: A present promise of future performance will not necessarily be honored. Time inconsistency is more likely to be a problem when beneficiaries constitute a politically powerless group because they cannot use the political system to influence future administrations to continue tax and transfer programs. But, problems associated with time incon- sistency can even affect politically powerful groups like the Alieu in certain instances. For example, in some countries, international economic organiza- tions, such as the International Monetary Fund, pressure local politicians to drastically reduce government spending in order to balance the country’s budgets and thereby increase their capacity to repay international loans.65 This coercion reduces the amount of funds available for use in the state’s redis- tributive programs. 60. W.W. ROSTOW, THE STAGES OF ECONOMIC GROWTH: A NON-COMMUNIST MANIFESTO (3d ed. 1990) (describing the five stages of economic development). 61. See Richard M. Bird & Eric M. Zolt, Redistribution Via Taxation: The Limited Role of the Personal Income Tax in Developing Countries, 52 UCLA L. REV. 1627 (2005). 62. Id. at 1669. 63. Robin Broadway, Nicolas Marceau & Maurice Marchand, Investment in Education and the Time Inconsistency of Redistributive Tax Policy, 63 ECONOMICA 171, 186–87 (1996) (describing the effects of time inconsistency in redistributive tax policy on education and wealth disparity). 64. See Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 NYU ANN. SURV. AM. L. 497, 554 (2003) (discussing the decline in support for affirmative action policies because, with the passage of time, these policies are no longer viewed as a form of reparations for slavery). For further discussion about why affirmative action policies have suffered from time inconsistency, see, for example, BARBARA R. BERGMANN, IN DEFENSE OF AFFIRMATIVE ACTION 8 (1996). 65. See James H. Weaver, What Is Structural Adjustment?, in STRUCTURAL ADJUSTMENT: RETROSPECT AND PROSPECT 8 (Daniel M. Schydlowsky ed., 1995) (“Virtually all IMF agreements have an expenditure reducing component.”). 86 58 UCLA LAW REVIEW DISCOURSE 65 (2010) A fourth problem with taxation is that tax and transfer programs will not be sufficient in certain states because the novel attributes of land make its actual transfer essential. In his empirical evaluation of public opinion related to land in South Africa, James Gibson found that “70% . . . of African respondents . . . agreed that ‘Land is special: Having land is more important than having money.’”66 Land is special because it often has an unquantifiable cultural value that derives from the key role it plays in individual and group identity. Communities are often spiritually and emotionally tied to the land where their ancestors are buried.67 As a result, although a group or individual may have been dispossessed long ago, dispossessed owners can still have a deep cultural connection to particular parcels of land that does not erode with the passage of time. Land is also unique because it is a highly visible sign of wealth; as a result, perceptions about inequality may not shift without the significant transfer of real property.68 Additionally, land is special because it is the basis of sovereignty. If an oppressed indigenous majority does not reclaim land that was unjustly dispossessed by its colonizers, political independence can ring hollow.69 Finally, in some societies, land is the most important means of production, making access to land the primary way to counteract poverty and marginalization.70 Therefore, while some states can address inequality resulting from past land theft through tax and transfer programs, others require land redistribution. 2. Land Redistribution At T5, the government of Naiku can choose not to pursue a reparations or restoration program and thus dispense with the work of identifying who owned or occupied particular land parcels and the work of locating their heirs. Naiku’s government can instead implement a program to redistribute real property that is not focused on vindicating past rights in land. The objective of land redistribution in Naiku would be to provide greater access to land based 66. See JAMES L. GIBSON, OVERCOMING HISTORICAL INJUSTICES: LAND RECONCILIATION IN SOUTH AFRICA 40 (2009). 67. Waldron, supra note 55, at 4, 19–20 (qualifying his theory that property rights may fade with time by noting that property rights may not fade when the dispossessed entity is a tribe or community and the land taken is important to that group’s sense of identity). 68. See generally Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988) (discussing the importance we place on property and clear property rules, given the significance of property ownership as a signal of our economic and social standing). 69. See Kaumbi, supra note 17, at 28. 70. Moene, supra note 58, at 52, 53, 61 (“The amount of land relative to the population and the demand for labor in urban areas are shown to influence strongly the economic and social impact of land redistribution.”). Property and Transitional Justice 87 on an individual’s current socioeconomic status or membership in a previously disadvantaged group. For example, in the redistributive prong of South Africa’s land reform strategy—the Land Redistribution for Agricultural Development (LRAD) program—a citizen can qualify for a state grant to purchase land if he or she is an adult from a previously disadvantaged group who intends to engage in full-time farming and can contribute a minimum of R5,000 ($665) towards the acquisition.71 To secure land for redistribution, the state can either rely on willing sellers to whom the state pays a mutually agreed-upon price, or in the alternative, it can rely on eminent domain. In the latter case, the state determines the amount of just compensation given the circumstances, and the landowner has the right to appeal to the courts if she thinks the amount is inadequate. Land equalization is a specialized type of land redistribution program that is best suited for societies in which land is a key economic commodity and in which historical injustice has led to multiple ownership claims to the vast majority of the nation’s land parcels. It is a way for a society to wipe the land ownership slate clean and start over. Land equalization places individuals and corporations on equal footing without heeding the Marxist call to abolish all private property. The difference between land equalization and taxation is that the former focuses on the redistribution of land rather than all wealth. In addition, land equalization mitigates time inconsistency concerns by delivering benefits to individuals and communities in a shorter timeframe. The most important dif- ference between land equalization and land redistribution is their respective moral starting points. The starting point for land equalization is that everyone is entitled only to his or her fair share of land. Under land redistribution, the state assumes current owners are entitled to their current land holdings, so to acquire their land, the state must wait for current owners to willingly sell their land, or the state can invoke eminent domain and pay the current owners just compensation. A system of land equalization in Naiku might look like this: Every citizen who reaches the age of eighteen by a certain date will be allocated a certain number of points, and each point is worth a certain amount of money. The primary caretakers for people under the age of eighteen will qualify for a set amount of additional points per dependent. The government and corporations 71. MINISTRY FOR AGRIC. & LAND AFFAIRS, S. AFR., LAND REDISTRIBUTION FOR AGRICULTURAL DEVELOPMENT: A SUB-PROGRAMME OF THE LAND REDISTRIBUTION PROGRAMME (2000), available at http://www.sarpn.org.za/documents/e0000008/20010604SibandaAppendix.pdf. The dollar figures were calculated using an exchange rate of 7.5 to 1. 88 58 UCLA LAW REVIEW DISCOURSE 65 (2010) will also receive predetermined amounts of points. Through a participatory process involving government, civil society, and international experts, Naiku will devise a system by which each parcel of land, both publicly and privately owned, will be assigned a certain number of points based on its value. This determination will account for factors such as the price paid, fair market value, existing improvements, circumstances of acquisition, and the strategic impor- tance of the land. These factors will ensure that land acquired in good faith is treated differently than land that was transferred under dubious circumstances. Imagine that Naiku decides to allocate 100 points to each citizen. If X presently owns land worth 150 points, then she has two choices. She can either pay for the 50 points that she holds in excess of her 100 point alloca- tion or relinquish her title to land worth 50 points in order to bring her land worth down to 100. In either case, to increase accountability, the money or land would be deposited into an internationally monitored land redistribution account. A corporation should receive points based on its contribution to soci- ety (determined by the number of people it formally employs, the amount of money invested in society, etc.); unlike individuals, corporations could not receive money from the redistribution account but would be required to pay into it.72 In contrast, if Y owns land worth 25 points, she can take a cash or an in- kind payment worth 75 points, acquire land worth 75 points, or receive some combination of both from the redistribution account in order to raise her point total to the allocated 100. In-kind payments are crucial to land equalization because the process of choosing from a wide array of viable options makes citizens active agents in the process of transformation.73 All in-kind payment options would have predetermined point allocations and could include things like specialized vocational training, higher education for two generations, priority in an existing housing program, and access to subsidized credit.74 The list of in-kind payments would have to be tailored to the abilities of the gov- ernment and the needs of its people.75 The land equalization process would unfold in two rounds. The purpose of the first round would be to build up the redistribution account. Private citi- zens who own property in excess of 100 points would decide whether to place land or money into the redistribution account, and the government and corpo- rations would place land in excess of their predetermined allocation of points 72. The tradeoff is that this may reduce a corporation’s ability to create jobs. 73. See Atuahene, From Reparation to Restoration, supra note 15, at 1447–50 (arguing that choice plays a large role in making people active agents and restoring their visibility). 74. Id. at 1448–49. 75. Id. at 1448–50. Property and Transitional Justice 89 into the account as well. In the second round of the process, the state would distribute land, money, and in-kind payments to those with less than 100 points. A national lottery would determine the order in which people spent their points. After the initial allocation of property rights through the point system, there would be no restraints on alienation, so people would then be free to trade at will. Land equalization’s main strength is its potential to reorder the property status quo and to level the playing field.76 It is not designed to restore a prior status quo, so those who have never owned land are not excluded from the redistributive program as they are in restoration or reparations programs. A shortcoming shared by both land equalization and land redistribution programs is that wealth accumulated as a result of past land theft can be transferred to non-land-based investments such as securities, thereby achieving land ownership equity, but not asset equity.77 Consequently, the state should implement tax and transfer programs alongside land equalization and redistribution programs. III. THE PROCESS OF CHOOSING FROM THE AVAILABLE OPTIONS I have discussed the options available to Naiku and other states that have the political will to address past property theft. In this Part, I will argue that the process a state uses to choose between the available options is vitally important. More specifically, I argue that when choosing between options, the state should use a highly participatory process involving a broad swath of the pol- ity because this will increase the perceived and actual legitimacy of the resulting property status quo. As it stands now, groups of elites often decide how states address past theft. For example, in South Africa’s Land Restitution Program, both the decision to compensate only those who were dispossessed of a right in land after 1913, as well as the process the state would use to compensate citizens, were made primarily with the involvement of political parties and experts with limited direct consultation of average citizens.78 Likewise, in Kosovo, the decision to provide restitution in-kind or compensation only to persons dispossessed 76. The strengths of land equalization are discussed in Part II.B, supra. 77. The downsides of land equalization are enumerated in Part II.B, supra. 78. See Restitution of Land Rights Act 22 of 1994, as amended by Act 48 of 2003, §§ 2(1)(b), 2(3), 4 (S. Afr.); Heinz Klug, Participating in the Design: Constitution-Making in South Africa, 3 REV. CONST. STUD. 18, 20 (1996). 90 58 UCLA LAW REVIEW DISCOURSE 65 (2010) between March 23, 1989, and March 24, 1999, was made by international actors, with limited involvement of average citizens. 79 States that limit the participation of average citizens in their decisionmak- ing processes fail to avail themselves of several advantages of broad participation. First, because one primary purpose of addressing past theft is to increase the legitimacy of the state and present property arrangements, curtailing public participation in the process can place the perceived legitimacy of the program at risk. The evidence shows that people are likely to believe that the outcome of a legal process is legitimate even if it is unfavorable to them, as long as the process involved fair procedures and was conducted by the appropriate authori- ties;80 Tom Tyler and others have proven that “the opportunity to express one’s opinions and arguments, the chance to tell one’s own side of the story, is a potent factor in enhancing the experience of procedural justice, even when the opportunity for expression really accomplishes nothing outside the proce- dural relationship.”81 Second, true participation results in the devolution of power to average citi- zens and hence serves as a check on the power of traditional decisionmakers. For example, if the process is transparent and highly participatory, it is more difficult for program administrators to perform corrupt acts because people have been allowed behind the closed doors and are actively watching. Third, a public conversation can help to ground citizens’ expectations in reality. Some transitional states cannot afford to give everyone compensation, so the public conversation can provide people with information about exactly what resources are available and what programs the state can offer given its limited resources. Fourth, direct citizen participation introduces a unique perspective not available when the decisionmaking process is dominated by elites. A broadly representative group of people is better suited than elites to know the 79. See On Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission, U.N. MIK Reg. No. 2000/60, § 3 (Oct. 31, 2000). 80. See Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, 25 ADVANCES EXPERIMENTAL SOC. PSYCHOL. 115, 149, 162–64 (1992). See generally JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS (1975); TOM R. TYLER, WHY PEOPLE OBEY THE LAW (2006). 81. Id.; see also Robert Folger, Distributive and Procedural Justice: Combined Impact of “Voice” and Improvement on Experienced Inequality, 35 J. PERSONALITY & SOC. PSYCHOL. 108 (1977) (describing an experiment involving distribution of monetary rewards by a manager and finding that, on a measure of procedural fairness, “voice workers” (workers who expressed opinions on fairness) expressed more satisfaction with the allocation process than “mute workers” (workers who gave no statements of their opinions)); Stephen LaTour, Determinants of Participant and Observer Satisfaction With Adversary and Inquisitorial Modes of Adjudication, 36 J. PERSONALITY & SOC. PSYCHOL. 1531 (1978) (finding that the satisfaction with an adjudicative procedure was impacted by procedural fairness and the opportunity for presentation of all relevant information to the decisionmaker). Property and Transitional Justice 91 population’s preferences. Lastly, democracy is strengthened when people partici- pate in deciding issues that directly affect them.82 When states decide to address past theft through an inclusive, highly participatory process, they must be ready to navigate around several poten- tial pitfalls. First, the process can become time-consuming given the number of people who should be involved and the challenges of synthesizing the information received. But, by investing time in participatory procedures on the front end, the state can receive the dividends in the form of increased legitimacy at the back end. 83 Second, meaningful public participation requires significant resources that many cash-strapped transitional states cannot provide. Thus, it is crucial for states to involve civil society and international organi- zations in managing the process, which can reduce state expenditures and increase transparency. A third potential drawback of a highly participatory process is the difficulty of facilitating a conversation that adequately balances participation and deliberation precisely because participation has the potential to undermine deliberation. A common solution to the deliberation- participation paradox is for the organizing entity to choose community representatives.84 But, there is no guarantee that the people the entity chooses will be accountable to, or representative of, the larger public. Fourth, a public conversation about past property theft could serve to inflame extant divisions and ethnic- or religious-based hatred lurking just below the surface. But, it is not necessarily bad that talking about past injus- tices has the potential to cause latent animosities to boil up to the surface, so long as the conversation leads to a solution that will assuage the ethnic rancor moving forward. Fifth, the very concern a public conversation is intended to address—a lack of legitimacy—may prevent people from participating in the decisionmaking process. If people are discontent because of an illegitimate property distribution, this could result in apathy and disengagement rather than a determination to find a solution. Lastly, and most problematically, even if a state manages to facilitate a meaningful public conversation, there is no guar- antee that the output of the conversation will affect the ultimate decision. The entire process can devolve into a propaganda campaign designed to give the illusion of power sharing when in actuality the state is carrying on with 82. See CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 31 (1970). 83. Id. at 60–61 (citing the Port Townsend Terminal case and the time and money the gov- ernment lost by only consulting organized groups and excluding others). For a discussion about participatory procedures, see Atuahene, Things Fall Apart, supra note 15, at 829, 859–65. 84. Bruce W. McClendon & J.A. Lewis, Goals for Corpus Christi: Citizen Participation in Planning, 74 NAT’L CIVIC REV. 72 (1985). 92 58 UCLA LAW REVIEW DISCOURSE 65 (2010) business as usual, and the decisions are being made by those in power with no regard for what average citizens desire.85 While the importance of involving the public in the political deci- sionmaking process is largely undisputed in the literature,86 the level of control the public should have in the decisionmaking process is a very controversial matter. At the very basic level of participation, power holders aim to educate the public about options, rights, and responsibilities, but information flows in one direction.87 This is not true participation. A moderate participation level involves token participation from certain stakeholders who are informed or consulted, but the present power holders are not forced or inclined to truly integrate the knowledge and suggestions of these participants.88 Alterna- tively, a few handpicked citizens who are not accountable to their communities may be invited to join a decisionmaking body. In both situations, the commu- nity has no true opportunity to decide. A high participation level is achieved when participants exercise a significant amount of control over both the process and outcome;89 this is the type of public participation envisioned in this Article. To achieve a high participation level, a state must use a bottom-up approach for defining the relevant public groups, which may include stakeholders such as political parties, bureaucrats, community organizations, average citizens, and experts.90 To ensure significant buy-in, the state must include both organized groups and citizens not affiliated with particular groups.91 The end goal is to make the final decision about how to address past property violations in collaboration with a diverse, representative group of citizens. 85. Cheryl Simrell King, Kathryn M. Feltey & Bridget O’Neill Susel, The Question of Participation: Toward Authentic Public Participation in Public Administration, 58 PUBLIC ADMIN. REV. 317, 322 (1998) (using focus groups in northeast Ohio—comprised of administrators and citizens—to examine the perceived effectiveness of attempts to incorporate public participation in administrative decisionmaking). 86. See Ortwin Renn et al., Public Participation in Decision Making: A Three-Step Procedure, 26 POL’Y SCI. 189 (1993). 87. See Sherry R. Arnstein, A Ladder of Citizen Participation, 35 J. AM. PLANNING ASS’N 216, 217–18 (1969). 88. Id. at 217, 219–20. 89. Id. at 217, 221–23. 90. See JOHN CLAYTON THOMAS, PUBLIC PARTICIPATION IN PUBLIC DECISIONS: NEW SKILLS AND STRATEGIES FOR PUBLIC MANAGERS 61–62 (1995) (noting how the state must not choose to engage only certain groups while excluding others with contrary views). 91. Before inviting organized groups, however, the state must explore how democratic each group is and whom each one represents. See Walter A. Rosenbaum, The Paradoxes of Public Participation, 8 ADMIN. & SOC’Y 355, 372 (1976) (“An almost universal finding in participation studies is that groups or individuals active in such programs (1) represent organized interests likely to have been previously active in agency affairs, (2) include a large component of spokesmen for other government agencies, (3) represent a rather limited range of potential publics affected by programs, and (4) tend toward the well-educated, affluent middle- to upper-class individuals.”). Property and Transitional Justice 93 CONCLUSION One of the most important issues facing transitional states is what they should do about past property violations. There is, however, a paucity of scholarship that explores the options a transitional state has. I examined the potential courses of action for a hypothetical country called Naiku in order to highlight the challenges many transitional states confront. Countries like Naiku, with the political will to address past land theft, have three options: (1) maintaining the present property status quo, (2) fully or partially returning to a prior property status quo, or (3) creating a new property status quo alto- gether. The main conclusion of this Article is that no matter which option a transitional state chooses, its decisionmaking process is crucial. Ensuring legiti- macy and lasting results requires a well-informed, inclusive public dialogue rather than a less time-consuming, less costly process involving only elites. For example, a state may decide to maintain the current property status quo because it does not have the bureaucratic capacity to redistribute property. While this is an important decision, what is more important is the participa- tory nature of the decisionmaking process. If the property status quo has been sullied by asset-based inequalities resulting, in large part, from past land dispossession, then a top-down decision not to reorder property arrangements can result in widespread resentment and feelings of injustice. In contrast, if the decision is a result of a highly inclusive, public dialogue, studies show that the population will likely perceive it as just.92 In sum, this Article aims to further the literature about how transitional states can deal with past property violations. While I created the nation of Naiku to streamline the discussion, the problems that Naiku faces are very real and deserve further intellectual inquiry. 92. Tyler & Lind, supra note 80, at 162–64. 
work_b46pij2zrnbc5pl5ydp4srgdye	----	Untimely Resnais: <italic>Muriel</italic>'s Disarticulations of Justice Untimely Resnais: Muriel’s Disarticulations of Justice Laura McMahon, Gonville and Caius College, University of Cambridge (lcm31@cam.ac.uk) Abstract: Alain Resnais’s 1963 film Muriel ou le temps d’un retour (Muriel, or the Time of Return) has been read in terms of a failure to engage with the historical and political issues surrounding the Algerian War – a failure viewed by Susan Sontag as a consequence of Resnais’s favouring of aesthetics over politics. This essay reconsiders Muriel beyond the terms of this perceived privileging of aesthetic abstraction over political engagement, and looks at ways in which the spatio-temporal organization of the film is bound to forms of political critique. Drawing on Jacques Derrida’s thinking of justice and Gilles Deleuze’s emphasis on the topological dimensions of Resnais’s cinema, I argue that Muriel’s differential, interruptive configurations of history and place carve out a time and space for justice that refuses ontologization, reanimating encrypted traces of Algeria’s traumatic history of decolonization and resisting the mournful memory-work of the French nationalist account. Keywords: Resnais; Derrida; Deleuze; deconstruction; justice; mourning In a current global political context haunted by the spectre of the ‘ non-person ’ – a context which includes illegal yet state-sanctioned acts of war, imprisonment, torture and rendition flights – revisiting Alain Resnais’s 1963 Muriel ou le temps d’un retour (Muriel, or the Time of Return), a film which has at its absent centre a woman tortured by the Film-Philosophy 20 (2016): 219–234 DOI: 10.3366/film.2016.0012 f Laura McMahon. The online version of this article is published as Open Access under the terms of the Creative Commons Attribution-NonCommercial Licence (http://www.creativecommons.org/licenses/by-nc/3.0/) which permits non-commercial use, distribution and reproduction provided the original work is cited. For commercial re-use, please refer to our website at: www.euppublishing.com/customer-services/ authors/permissions. www.euppublishing.com/loi/film 219 French during the Algerian War of Independence (1954–62), may appear timely. Indeed, the timeliness of various acts of revisiting and return is precisely what is at stake in Muriel, as indicated by the title of the film itself. Yet, Resnais’s film has often been judged untimely in its failure to engage directly with the immediate events of the Algerian War (Muriel was released just a year after the end of the conflict. See, for example, Boudjedra 1971, p. 27; see also Gauch 2001, pp. 47–57). For some critics, this failure crystallizes in the film’s refusal to represent Muriel – absent from image and sound, Muriel is neither seen nor heard; we know nothing of her life beyond the event of her torture; we never witness events from Muriel’s point of view. Nor does the film appear to engage with the military and political realities of the Algerian War itself (in contrast to, say, Gillo Pontecorvo’s The Battle of Algiers [La Bataille d’Alger], released in 1966, three years after Muriel). Though censorship in France at the time of Muriel’s release limited representation of the Algerian War (evidenced most clearly by the ban upon Jean-Luc Godard’s Le Petit Soldat [1960]), it has also been suggested that such restrictions were perhaps not obstructive enough to warrant the degree of narrative ellipsis adopted by Resnais’s film (Stora, 1998, p. 41; quoted in Gauch, 2001, p. 48n4). Thus while Muriel foregrounds reflections on questions of memory, testimony and forgetting, Muriel’s absent-present position within the film becomes indicative of what Suzanne Gauch calls the ‘ disappearing text ’ of the war (2001, p. 53). 1 On this reading, a failure to give a voice and image to Muriel is understood as part of the film’s broader failure to engage with the historical and political issues surrounding the conflict in Algeria (viewed, as in Susan Sontag’s reading of the film, as a consequence of Resnais’s favouring of aesthetics over politics [1963, pp. 23–7]). In this essay, I wish to reconsider Muriel beyond the terms of this perceived privileging of aesthetic abstraction over political engagement, and to look at ways in which the spatio-temporal organization of the film is bound to forms of political critique. 2 Specifically, I argue that the film’s differential, interruptive configurations of history and place can be read as carving out 1. For an important discussion of French cinema, including Muriel, as ‘ so often fantasized as empty of Algerians ’, see Austin, 2007 (p. 182). 2. Here my argument is indebted to the recuperation of the political impetus of Muriel proposed by Leo Bersani and Ulysse Dutoit, 1993, pp. 181–208. To their reading I add in particular a focus on the differential dynamics of justice. Since writing this essay in 2011, I have encountered further very useful discussions of the political dimensions of Muriel, including Max Silverman’s reading of the film’s ‘ palimpsestic structure ’ of ‘ concentrationary memory ’ (Silverman, 2013), and Maria Flood’s analysis via Butler’s reflections on ‘ grievability ’ (Flood, forthcoming). Film-Philosophy 20 (2016) 220 a time and space for justice, through a perpetual revisiting and reanimation of historical and testimonial traces. Though my primary focus here is on justice rather than mourning, the two issues are deeply interlocked, as Jacques Derrida suggests in Specters of Marx: to render justice is to resist any terminable work of mourning, to refuse to ontologize death (1994, p. 97). Here an opening to justice might be understood as what Ranjana Khanna, drawing on Derrida in her discussion of Algerian history, gender and representation, calls a form of ‘ critical melancholia ’, which brings into focus ‘ the inassimilable, the barely incorporated, and the melancholic traces that in turn cause damage to the force field of mournful national history that fails to introject them ’ (2008, p. xvii). 3 In resonance with Khanna’s diagnosis of ‘ barely incorporated ’ histories, which she herself links to a call for justice, Muriel is a film in which melancholic traces of the inassimilable surface at critical moments to fissure the protective epistemological screens of (imperial) memory. The fictional crises of Muriel – the event of torture and the failures and fault-lines of memory that the film explores – are indicative of a wider historical reality – of French atrocities in Algeria and of collective amnesia surrounding these acts – that is melancholically resistant to memorialization, in that it perpetually calls into question the mournful memory-work of the nation-state. 4 As I turn to focus on issues of justice in Muriel, I seek to bear in mind Khanna’s linking of justice to the ‘ melancholic remainder[s] ’ of Algeria’s traumatic history of decolonization (2008, p. 15), to the encrypted traces that a French nationalist account fails to introject. What would it mean for Muriel – a film – to render justice? This would be a notion of justice understood not in a judicial or legal sense but rather in terms that conjoin the aesthetic to both the political and the ethical. In considering a mode of justice rendered by Resnais’s film, I follow Derrida’s thinking of justice as incommensurable, as interruptive of the present, as always to come. In contrast to the timeliness of a return to Muriel suggested above, justice for Derrida can only ever be untimely, for justice operates beyond ontology – it is that which is addressed to those no longer 3. Khanna argues fruitfully for the ways in which Derrida’s Algerian heritage shapes his thinking of deconstructive justice (2008, pp. 31–67). Derrida’s thought thus intersects with Muriel via a range of interwoven concerns. 4. As Khanna notes, collective amnesia in the aftermath of the Algerian War was encouraged and sanctioned by French amnesty laws, first introduced through the Evian Accords of 1962. This highlights ‘ the very particularity of the Algerian situation […] in terms of the forms of exception, marginalization, erasure, and amnesia that characterize it […] ’ (2008, p. 3, p. 8). Muriel’s Disarticulations of Justice 221 or not yet present (hence the centrality of the spectre and the ‘ hauntological ’ in his reflections on justice [Derrida, 1994, p. 97]). Justice is thus anachronistic, incalculable, out of joint (a phrase which Derrida borrows from Hamlet) (Derrida,1994, p. 18). Such a notion of justice would appear apposite for a consideration of Muriel – not only does the film circulate around the untimely absence of its eponymous subject, but, in its irrational cuts and interruptive editing, it also deploys discontinuous forms of temporality, configuring time itself as out of joint. 5 It is not only time that is out of joint in Muriel but space as well. As the film cuts erratically between various locations, space becomes dislocated, disjunctive and incalculable. This spatio-temporal discontinuity appears to exemplify the association between ‘ non-chronological time ’ and ‘ non-localizable relations ’ proposed by Gilles Deleuze in his reading of Resnais (2005, p. 119). 6 Yet Deleuze goes on to suggest that space is not the main concern of Resnais’s cinema: ‘ The image no longer has space and movement as its primary characteristics but topology and time ’ (2005, p. 121). Though space and movement remain central to my consideration of Muriel, I aim to take up Deleuze’s focus on topology in connection with my discussion of time. Topology emphasises both the shifting dimensions of objects under conversion and underlying properties of interconnectedness, offering a fertile framework for considering the spatialization of processes of memory, encryption and association (Colman, 2011, pp. 163–178). In what follows, I thus focus on the event of Muriel’s torture – and, by extension, questions of ethical and political responsibility – as configured both hauntologically and topologically by the film. In this sense, the topological emphasis of Deleuze’s account of Resnais’s cinema adds to the hauntological contours of Derrida’s thinking of justice, and vice versa. 7 Therein may lie the possibility of viewing Muriel in terms of an incommensurable justice addressed to a being (or beings) no longer or not yet present – a justice which, in dialogue with the durational and cartographic dynamics of cinema, is (dis)articulated here not only temporally but spatially too. Though the Algerian War figures as a latent presence in earlier films by Resnais, such as Night and Fog (Nuit et brouillard, 1955), Hiroshima mon amour (1959) and Last Year at Marienbad (L’Année dernière à 5. On untimely cinema in general, see Jodi Brooks and Therese Davis (Eds.), 2012. This edited issue includes a discussion of untimeliness in Resnais’s Last Year at Marienbad, which draws principally on Badiou’s thinking of the event (Ling, 2012). 6. For a Deleuzian reading of time and untimeliness in Resnais, see Boljkovac, 2013. 7. On broader connections between Deleuze and Derrida, see Patton and Protevi (Eds.), 2003. Film-Philosophy 20 (2016) 222 Marienbad, 1961), Muriel constitutes his most explicit (albeit indirect) engagement with the conflict (Wilson, 2006, pp. 88–89). The film is set in Boulogne-sur-mer in France, focusing on the lives of Bernard ( Jean-Baptiste Thierrée), who has recently returned from fighting in the Algerian War, and his stepmother Hélène (Delphine Seyrig). Hélène has invited her former lover Alphonse (Jean-Pierre Kérien) to visit; he has brought with him his current lover Françoise (Nita Klein), under the pretence that she is his niece. Alphonse’s visit allows for an exchange of conflicting memories with Hélène relating to a love affair that they had just before the outbreak of World War II. As Alphonse reminisces about the past, he pretends that he has spent time living and working in Algeria. The space of Hélène’s apartment thus provides the locus for a reanimation of memories of Algeria and of World War II, both imagined and real. The film situates these domestic dramas of recollection in relation to shots of the city either in ruins or rebuilt, recalling the large-scale destruction and reconstruction that took place in Boulogne during and after World War II. The city thus bears the traces of its own traumatic history, the background against which the memories of the various characters will be revisited and recast, as the film explores le temps d’un retour of its title. ‘ Muriel ’ is the name given to an Algerian woman whom Bernard apparently witnessed being tortured to death by French soldiers during the Algerian war – an event that he claims not only to have seen but to have taken part in. While pretending to Hélène that Muriel is the name of his fiancée, Bernard spends his time attempting to document the event of Muriel’s torture, assembling old journal entries and photographs, filming around Boulogne and viewing home movie footage from Algeria. Yet Bernard’s efforts to archive the event reveal only the failure of such an undertaking: as he throws his camera into the sea, the film gestures self-reflexively to the unbridgeable gap between truth and representation. As Robert – a fellow ex-soldier and now a member of the OAS (Organisation de l’armée secrète) – who was also complicit in the torture of Muriel, remarks to Bernard: ‘ You want to tell the story of Muriel? Muriel is something which can’t be told. ’ This resistance to retelling is foregrounded in the scene in which Bernard’s tape is switched on by Françoise, playing back a cacophony of male laughter which we may infer to be the sounds of Muriel’s torture. But Bernard rushes to rip the tape out of the machine, silencing the disturbing sounds. He goes on to shoot Robert dead – an act that hovers problematically between a form of retribution for Muriel, a disavowal of his own responsibility, and a further violent silencing of the past. In its disjointed narrative arc, the film arguably risks allowing Bernard’s failed documentation of the torture of Muriel to figure as symptomatic of a Muriel’s Disarticulations of Justice 223 psychological (rather than political) crisis of guilt and memory, thus relegating Muriel, and the Algerian War, to a symbolic function divorced from historical referentiality. As Gauch puts it: ‘ Bernard’s co-option and erasure of Muriel’s battered body in the tale of his personal torment repeats a violence that the film just begins to acknowledge ’ (2001, p. 51). Muriel’s aesthetics of fragmentation and ellipsis further threatens to obscure the truth of Muriel’s suffering, and, by extension, the historical real of atrocities committed by the French during the Algerian War. Indeed, Gauch suggests that it is the very ambiguity of Muriel’s place – and of Algeria – in the film that facilitates this stylized aesthetics of disjunction (2001, p. 51). The criticism here is that by enabling a particular aesthetics, Muriel disables a certain politics. Yet what I wish to suggest, through further examination of the film’s hesitations over forms of historical remembrance, is that Muriel’s aesthetics of discontinuity plays a key role in its politics and ethics of engagement. Spectral Returns In probing the limits of filmic representation, Muriel raises fundamental issues of memory, testimony and knowledge, asking questions about what it is possible to see, hear, remember and know, in ways that recall Jacques Rancière’s notion of the ‘ distribution of the sensible ’ (Rancière, 2006). Through Bernard’s attempts to accumulate what he refers to at one point as ‘ preuves ’ – the term resonates in its double meaning in French as both ‘ proof ’ and ‘ film rushes ’ – Muriel self-reflexively explores specific links between evidence, testimony and film. In so doing, the film raises doubts, as Emma Wilson suggests, about ‘ the possibilities of testifying, of bringing grief and guilt into the open ’ (2006, p. 91). Muriel gestures to cinema’s impotence in the face of any such efforts of recuperation. The fragility of audio and visual forms of evidence is emphasized – both in Bernard’s discarding of the tape and in a filmic image (possibly of Algeria) that we see melting when projected in Bernard’s studio. The vulnerability and ephemerality of these testimonial media – of tape and of celluloid – furnish a form of self-referential comment on the limits of representation, the mutability of ‘ proof ’ and the instability of acts of memorialization. As such, the film moves from an avowed emphasis on the stabilizing certainties of ‘ evidence ’ towards the differential dimensions of the trace. In an early scene, Hélène chastises Bernard for leaving a coffee pot on one of her antique tables, asking how she will sell it if it has a scratch; a close-up shows Bernard’s hand brushing the surface of the table, but a slight residue remains. As a concern with physical marks on objects anticipates an engagement with the psychical traces of culpable acts, Muriel redistributes the sensible, signalling a Film-Philosophy 20 (2016) 224 surfeit of testimonial remainders that will surface to unsettle the film’s epistemological frames. Such an engagement with the uncertainties of memorialization points to Muriel’s hauntological reconfiguring of time. This is exemplified not only by the film’s interruptive, non-linear editing (for example, as Celia Britton notes, the abrupt insert of daytime shots of Boulogne within a scene set at night [Britton 1990, 37]) but also by particular moments in which the link between image and sound becomes disjointed; as Britton observes: ‘ the dialogue from one shot is carried over to the next, where it acts as a jarring background to an entirely different image ’ (Britton 1990, 37). This desynchronized structure also occurs in reverse, for example, when we hear a conversation between Hélène and Alphonse over images of Bernard and Françoise in the street outside the flat, before the film shows Hélène and Alphonse in conversation. Image and sound seem further at odds when apparently banal moments are punctuated by a strident musical score (Gauch, 2001, p. 50), as though the film itself were out of synch. Such formal disarticulations and deferrals appear to give cinematic body to Derrida’s configuration of the spectral as ‘ outside of any synchrony ’ (1994, p. 7). Here image and sound are rendered out of joint, as the film enacts a perpetual interruption of the present moment, elaborating a non-synchronic structure that ushers in a surfacing of ‘ melancholic remainders ’. The mise-en-scène further emphasises this anachronistic dimension through the eclectic mixture of antiques in Hélène’s apartment. As the film shifts from a register of ontology to hauntology, the present is held in suspension, opening to a perpetual revisiting and reshaping of certain memories (Derrida, 1994, p. 7). 8 This hauntological reconfiguring of time comes to the fore in the scene in which Bernard recounts the torture of Muriel while watching what appears to be an extract of his own home movie footage of Algeria. Through the conceit of the film-within-the-film, Muriel reminds us once more of the instability of ‘ proof ’, as images here are not what they seem. The grainy footage of French soldiers in Algeria – relaxed, laughing and apparently at ease with the locals – is undercut by the visceral violence of Bernard’s commentary. At stake here is not so much an aesthetics of juxtaposition as one of interrelatedness – as Leo Bersani and Ulysse Dutoit suggest, the sequence invites us to draw (delayed) connections between image and sound, for example, between the soldier diving and Bernard’s description of Muriel looking ‘ as if she had been left under water ’ (1993, 8. On amnesia, repetition and deferral in Muriel, see Croombs 2010. Muriel’s Disarticulations of Justice 225 p. 196). 9 What the sequence brings into focus is a logic of inextricability that binds the visible scenes of military life on-screen to the invisible scene of torture off-screen. Bernard claims to have been unaffected by the torture of Muriel at the time: after viewing her corpse, he slept well. Yet the apparent indifference of his account is undermined not only by the distress in his voice but by one detail in particular: ‘ Muriel’s eyes were not closed. ’ Echoing the same words in Bernard’s diary (glimpsed when Alphonse rifles through his papers), this phrase recalls an earlier detail of Bernard’s description of Muriel during her torture: ‘ She stared straight at me. Why me? ’ This memory also resonates, by inversion, through Bernard’s anxious commands to his girlfriend Marie-Do not to close her eyes – a form of ghostly, differential repetition that is exacerbated by Bernard’s references to Muriel as his girlfriend. 10 Singling him out during the event and perpetually returning to call him to account in its aftermath, Muriel’s gaze haunts Bernard, ceaselessly reminding him of his complicity in the crime of her torture (Gauch, 2001, p. 51, p. 55). This spectral gaze, the gaze of another who is no longer present, places Bernard’s time – and the time of the film itself – out of joint, holding Bernard to account. Yet such a gaze is one which cannot be returned; it is ‘ without any possible symmetry, without reciprocity ’, signalling an infinite demand (Derrida and Stiegler, 2002, pp. 120–1). An incalculable responsibility is thus posed here in excess of Bernard’s capacity to respond. And Muriel’s gaze figures a calling to account not only of Bernard, but also, by extension, of France, a nation haunted by the unsettled spectre of Algeria and by a demand for justice resisting ontologization, restlessly refusing to be attached to any one time or place. 11 Yet the risk of abstraction remains: consigning Muriel’s experience – and Algeria, by extension – to the realm of the spectral may still be viewed as politically disabling. In an analysis of Muriel alongside films such as Chris Marker’s La Jetée (1962) and Claude Chabrol’s Le Boucher (The Butcher, 1970), Emily Tomlinson draws on Derrida’s thinking of spectrality in order to address French cinema’s ‘ hauntological ’ engagement with Algeria. Critical of a tendency in these films to decontextualize the events of the Algerian War, Tomlinson contends that, through a series of metaphorical operations, such films ‘ appropriate 9. Bersani and Dutoit argue that this sequence circumscribes a call to responsibility that extends to the viewer, implicating us in this uneasy proximity between the ordinary and the unimaginable (1993, p. 196). 10. On differential repetition in Muriel, see Bersani and Dutoit 1993, p. 199. 11. On Muriel’s dynamic of ‘ ghostly return ’, see Hill 1992, p. 797. Film-Philosophy 20 (2016) 226 the pain of torture ’ via a ‘ generalized ‘ hauntology ’ ’ whereby ‘ the spectre of colonial brutality is no longer perceptible as such ’ (2002, pp. 46–7). Tomlinson argues persuasively that Muriel’s spectral operations abstract from historical specificity. Yet I wish to suggest here that while the film invokes this hauntological register, it remains attentive to traces of the historical real; indeed, this very attentiveness takes place through a hauntological engagement with the disjointedness of testimonial recognition and historical remembrance. As Gauch suggests, Resnais’s choice of the story of an Algerian woman tortured by the French displays an awareness of contemporaneous journalistic and testimonial accounts of the Algerian War (2001, pp. 54–5). Gauch cites the cases of Djamila Bouhired and Djamila Boupacha, who were both tortured and raped by French soldiers. Such cases gained considerable public attention in France at the time: Simone de Beauvoir was instrumental in seeking justice for Boupacha; she then co-authored a book about Boupacha’s experience, which appeared in 1962, the same year as the making of Muriel (Halimi and de Beauvoir, 1962). The film engages with the details of torture in ways that suggest familiarity (on the part of both Resnais and the scriptwriter, Jean Cayrol) with such testimonies. Bernard’s disturbing account of the state of Muriel’s corpse (‘ it was as if she had been left under water ’; ‘ With blood all over her body and in her hair … burns on her chest ’) implies torture by water and possibly electricity too – methods that were commonly used during the Algerian War. The film also suggests a conscious engagement with the particular gendered dimension of such atrocities. Marnia Lazreg’s study of practices of torture deployed by the French during the Algerian War has emphasized that Algerian women were routinely raped by French soldiers, to the extent that ‘ [a]lthough rape could take place without torture, torture seldom took place without rape ’ (2008, p. 160). Though Bernard’s account makes no explicit reference to rape, it notes at one point that Muriel’s clothes were torn off. Elsewhere in the film, Bernard’s perverse references to Muriel as his fiancée suggest ways in which she is configured erotically in his memory and imagination, intimating again the sexual dimension of her torture. 12 It may be that considerations of censorship influenced Resnais’s decision to allow the suggestion of Muriel’s rape to remain ambiguous. It may be that this indirect approach indicates a potential failure of the film’s responsibility. Yet, it is also possible to read the film’s resistance to the ontologization of the event as opening a time and space in which ‘ melancholic remainders ’ may be called forth, 12. See Britton 1990, p. 46, and O’Brien 2000, p. 60. Muriel’s Disarticulations of Justice 227 allowing that which has been historically encrypted to surface through the deferrals and dislocations within Bernard’s testimony and within the film itself. In evocation of the slippages and displacements of testimonial detail, Muriel operates not only critically but also hauntologically, in attentiveness to a historical real that ghosts the frame – implicitly invoked yet never fully present. In this sense, the film’s spectral operations, though resistant to ontology, may be seen to elaborate a form of (anachronistic) justice to the historical real. What Muriel gives us to understand is that the encryption of the events of the Algerian War in France’s collective memory exhibits a deep-rooted structure of spectrality that is played out here. Through images of Boulogne, suspended between ruins and reconstruction, the film implicitly positions the collective guilt attached to Algeria as haunted by other painful memories – explicitly of World War II, implicitly of Vichy. 13 Through Hélène’s and Alphonse’s conflicting reconstructions of their love affair, the film articulates, as Naomi Greene suggests, ‘ the climate of self-serving half-truths, of deliberate amnesia, that, in the early 1960s, characterized French memories of the Vichy era ’ (1999, p. 46). By bringing into focus a chain of amnesiac operations, Muriel ensures that its indirect engagement with French atrocities in Algeria is inseparable from its implicit invocation of a collaborationist past. And although the film foregrounds recent events in Algeria, it intimates the ways in which these events are necessarily haunted by a history of colonial violence. When Françoise tells Bernard that she has been acting in a film about a war in 1830 in which ‘ everyone died ’, this is followed by a shot of the deserted dining table; no further elaboration is given, but the date references the French invasion of Algiers and the beginning of imperial expansion into Algeria. The scene appears to bear out Tomlinson’s suggestion that the Algerian War was always already ‘ a spectral conflict ’, inextricably bound to past atrocities, to the irrepressible logic of the revenant (Tomlinson, 2002). Links between French collaboration and colonialism are emphasized further during the dinner at the restaurant, in which anecdotes and gastronomical reflections sit alongside fleeting references to deportation, Indochina and Algeria (including Alphonse’s racist comment about Arabs). Françoise’s tale of live lobsters cooked in boiling water is preceded by Roland de Smoke’s story of a subsiding house (‘ It’s new, it’s empty, and we’re waiting for it to fall down ’). Together, these seemingly disparate remarks gesture to histories of 13. Cayrol’s own experience of betrayal as a member of the Resistance and internment in a camp during World War II arguably informs such connections here. Film-Philosophy 20 (2016) 228 violence enshrouded by a modernized France. In its summoning of so many revenants of a colonialist and collaborationist past, Muriel foregrounds an inescapable logic of differential repetition that gestures beyond the fictions of its amnesiac crises towards the traumatic real of historical recurrence. Thus Muriel resists any restoratively mournful reconstruction of the past – in Deleuzian terms, it refuses to actualize the past in a ‘ recollection-image ’ (Deleuze, 2005, p. 119). Rather it elaborates what Deleuze describes, with reference to Resnais, as ‘ paradoxical hypnotic and hallucinatory sheets [of time] whose property is to be at once a past and always to come ’ (2005, p. 119). This ‘ always to come ’ is as important to Deleuze’s reading of Resnais as it is to Derrida’s conception of justice. 14 For Deleuze, Resnais’s cinema ‘ prevents the past from being debased into recollection ’ (2005, p. 120); similarly, for Derrida, justice takes place through a resistance to any petrification of the past, by way of a perpetual opening to that which is ‘ to come ’ (1994, p. 65). This opening to a justice-to-come is akin to what Derrida has called midmourning (1987, p. 355), a hauntological suspension of the introjective and incorporative dimensions of mourning – what Alessia Ricciardi describes as an ‘ ethically and politically energized space ’, ‘ a domain of remembrance in which the subject is perpetually re-exposed to history rather than removed from it ’ (2003, p. 34). The dislocated rhythm of midmourning and differential repetition that Muriel elaborates ensures a ceaseless reanimation of the subject’s relation to historical time. In configuring temporally immediate events as saturated by untimely correspondences, Muriel proposes a hauntological model of eventhood, whereby the present is always already haunted by the past and by so many possible future returns. Topological conversions Muriel gestures to the traces of atrocity in terms that are not only hauntological but topological too. As Marie-Do’s view through a kaleidoscope fills the screen, multiplying images of Bernard, the film reflexively signals its aesthetics of topological transformation – a pattern of morphing and redistribution visualized in space. As we have seen, Deleuze points to the topological aspects of Resnais’s cinema – a cartographical tracing of realms of being, which might be read in Muriel as an implicit mapping of the shifting psychical and political co-ordinates of torture. In The Body in Pain, Elaine Scarry argues that torture itself is a 14. In his broader reflections on the time-image, Deleuze, like Derrida, invokes Hamlet: ‘ Time is out of joint ’ (2005, p. 39). Muriel’s Disarticulations of Justice 229 process of conversion: transforming suffering into the spectacle of power, it maximizes the perceptual world of the torturer, while aggressively reducing that of the prisoner (1985, pp. 27–38). Scarry elaborates the interrogative encounter between torturer and prisoner in topological terms: ‘ It is only the prisoner’s steadily shrinking ground that wins for the torturer his swelling sense of territory. The question and the answer are a prolonged comparative display, an unfurling of world maps ’ (1985, p. 36). Torture enacts a topology of contraction and expansion, a violent recasting of territories of being, which can be linked, I suggest, to the ‘ contracting/expanding tendencies ’ of Muriel’s organisation of space (Kite, 2009, p. 12). Drawing on Scarry in her reading of Muriel, Wilson suggests persuasively that the connection between the psychological effects of torture and the rest of the film may be viewed as one of ‘ inflection and contamination ’, rather than one of direct representation (2006, p. 100). Deleuze’s cartographical framing of Resnais allows for the dynamic of ‘ inflection and contamination ’ identified by Wilson here to be considered further via a particular emphasis on the political dimensions of Muriel’s territorial redistributions of the event of torture. Through a relational mapping of perceptual space, Muriel elaborates a topology of contraction and expansion that brings the continuously shifting contours of remembrance, amnesia and the historical real into view. Topological effects in Muriel signal a connection between ‘ the steadily shrinking ground ’ of the torture victim and the expansive ground of colonial, sovereign space. Through the disjunctive mapping of zones of Boulogne, enhanced by rapid, disconnective editing, the film is regularly set free from legible co-ordinates of location, with the effect that on-screen space appears to expand. For Claude Ollier, the film elaborates ‘ a kind of spiral or circle opening further and further out so that the whole film seems to be basically centrifugal with everything projected to the outside ’ (quoted in Britton, 1990, pp. 39–40); 15 similarly, Bersani and Dutoit suggest, ‘ Muriel is a wholly centrifugal film ’ that is ‘ constantly rushing away from a narrative centre never firmly established in the first place ’ (1993, p. 191). Bersani and Dutoit cite the scene in which a stranger asks a local woman for directions, having failed to recognize that he is in the city centre. (It is presumably with this scene in mind that Deleuze suggests that in Muriel, ‘ the new Boulogne has no centre ’ [2005, p. 112]). As the stranger’s confusion becomes indicative of the way in which legible space is disrupted in Muriel, a sense of place becomes dispersed through 15. Britton also addresses the centrifugal force of the film, linking this to the motif of the kaleidoscope (Britton 1990, 40). Film-Philosophy 20 (2016) 230 an apparently increasing extension of urban territory. This is the ever-expanding ground of the sovereign – the centrifugal unfurling of French metropolitan space, invoked by the film in order to map the perceptual and political co-ordinates of colonial power and its inverse. In contrast to the ‘ steadily shrinking ground ’ of Muriel, ever to remain hidden from view, the main characters (particularly Robert and Bernard, the perpetrators of Muriel’s torture) freely negotiate their way around the space of the city. 16 These topological effects of contrast and morphing are compounded by the mapping of space in Hélène’s apartment. Though at times the apartment appears to be configured in claustrophobic terms, it is a space which allows for what Scarry calls ‘ outward unfolding ’ (1985, p. 39) – Hélène moves sometimes frenetically to and fro inside the apartment yet she also moves freely out of the apartment (for example, on her multiple trips to the casino). The apartment is a place of experiential extension, bearing out what Scarry describes as ‘ the central, overwhelming characteristic of the domestic ’: that ‘ its protective, narrowing act is the location of the human being’s most expansive potential ’ (1985, p. 40). In the context of torture, however, ‘ the world is reduced to a single room or set of rooms ’ (Scarry 1985, 40). The topology of torture is such that the physical and perceptual space of the prisoner contracts. In Bernard’s account of Muriel’s torture, she is placed in the centre of the room, under the beam of Robert’s torch, so that the officers can ‘ get a better look ’; surrounded, she falls from a chair, her arm twisted. Such is the centripetally deforming force of torture – what Scarry calls the ‘ unmaking ’ of the world – a collapse of the world, a vertiginous folding inwards. Thus through a system of subterranean correspondences, Muriel weaves connections between what we see and what is excluded from view. A recurrent focus on goods in shop windows gestures to the accelerated rise of consumerism in France during the period of the Algerian War – a culture of mass commodification further signalled in the film by snippets of speech that parody advertising slogans (such as Alphonse’s claim that ‘ [s]ome people cope with stains better than others – I’m one of them ’, followed by a grin). In the apparent disconnection between these motifs of consumerism and the event of Muriel’s torture, the film appears to bear out what Kristin Ross has shown to be an ideological delineation of 16. Having watched Bernard’s film, Vieux Jean asks where Robert is now. Bernard says: ‘ He walks around Boulogne, like everyone else. ’ To which Vieux Jean replies: ‘ But so do you! ’ Muriel’s Disarticulations of Justice 231 narratives of Algeria’s ‘ dirty war ’ and decolonization from discourses of sanitized modernization in France in the 1950s and 1960s (Ross, 1995). 17 Yet the over-determined meanings at stake in Alphonse’s claim about stain removal – in particular the invocation of culpability and disavowal – are indicative of a topology insisting on links between the realms of metropolitan consumerism and colonialist subjugation. As B. Kite suggests of Bernard’s investigations around Boulogne: ‘ perhaps he films café patrons, shop windows, the sliding building that recurs throughout Muriel as a minor motif to indicate that these signs of consumer comfort are historically predicated on the ‘ not-here ’ of a colonial economy, on blood and exploitation ’ (2009, p. 19). As Muriel’s cartographical disjunctions and consumerist visions become indicative of the relation of metropolitan space to its largely unacknowledged outside, the film enacts a series of topological conversions, revealing the fatal interdependence of the realms of the torturer and the prisoner, and of the coloniser and the colonised. Here the spectral contours of Muriel’s topology become apparent. For, as Gauch contends, ‘ the film refuses to localize the crime ’ (2001, p. 55); it refuses to limit the event of Muriel’s death to any one particular place, thereby resisting what Derrida calls ‘ ontopology ’ (1994, p. 82). As such, Muriel elaborates what Derrida refers to as a ‘ topology of mourning ’, whereby mourning is understood as ‘ without reliable limit ’, that is, without ontologization in terms of either time or space (1994, p. 97). Thus, read hauntologically and topologically, a different picture of Muriel emerges. As the film gestures perpetually to a moment beyond the present and to a place beyond that which is on-screen – ‘ not now ’ and ‘ not here ’ – both time and space are rendered out of joint. Tracing events which refuse to be brought fully to representation, suspended as they are in an ethically and politically animated realm of ‘ midmourning ’, the film engenders a series of melancholic remainders that, as Khanna suggests, rupture the ‘ force field ’ of an officially mournful history. What Khanna calls ‘ critical melancholia ’ emerges in Muriel through a hauntological configuration of time and a topological shaping of space. Here the time and space of colonial sovereignty is revealed as intimately and fatally bound to the ‘ not now ’ and ‘ not here ’ of the history and location of subjugated others. By intimating such interrelatedness in spectral and 17. Revealing one particularly disturbing bleed between the realms of decolonisation and modernisation, Ross notes that the new electrical appliances featuring in French kitchens during that period doubled up as instruments of torture used by the French during the Algerian War (1995, p. 113). Croombs draws on Ross’s study in one of his readings of Muriel (Croombs 2010b). Film-Philosophy 20 (2016) 232 topological terms, le temps du retour of Resnais’s film disarticulates an untimely, incalculable form of justice. Through this hauntopological reading, Muriel can be retrieved, to a certain extent, from criticisms of its lack of political engagement. Yet the film’s politics remains framed from the position of metropolitan France, both as a work by a French filmmaker and in the bias of its setting. The reverberations of a colonial history can be deconstructed from within, as Muriel intimates, by opening dominant imperial epistemologies to a surfeit of melancholic traces; yet for justice to be rendered – disjunctively, incommensurably – beyond these epistemologies, it remains vital to revisit and envisage further times and spaces through which the voices and images of Algeria might resonate (see Austin 2012). BIBLIOGRAPHY Austin, Guy (2007). Representing the Algerian War in Algerian cinema: Le vent des Aurès. French Studies, 61 (2), 182–195. Austin, Guy (2012). Algerian national cinema. Manchester: Manchester University Press. Bersani, Leo and Dutoit, Ulysse (1993). Arts of impoverishment: Beckett, Rothko, Resnais. Cambridge, MA; London: Harvard University Press. Boljkovac, Nadine (2013). Untimely affects: Gilles Deleuze and the ethics of cinema. Edinburgh: Edinburgh University Press. Boudjedra, Rachid (1971). Naissance du cinéma algérien, Paris: François Maspéro. Britton, Celia (1990). Broken images in Resnais’s Muriel. French Cultural Studies, 1 (1), 37–46. Brooks, Jodie and Davis, Therese (2012). Untimely cinema: Cinema out of time. Screening the Past, 35, http://www.screeningthepast.com/issue-35/ Colman, Felicity (2011). Topology. In Deleuze and cinema: The film concepts (pp. 163–178). New York and Oxford: Berg. Croombs, Matthew (2010a). Algeria deferred: The logic of trauma in Muriel and Caché. Scope, 16. http://www.nottingham.ac.uk/scope/documents/2010/february-2010/ croombs.pdf Croombs, Matthew (2010b). Algeria deferred: The logic of trauma in Muriel and Caché. Paper delivered at the Society for Media and Cinema Studies Conference, Los Angeles, 21 March 2010. Deleuze, Gilles (2005). Cinema 2: The time-image. (Hugh Tomlinson & Robert Galeta, Trans.). London: Continuum. Derrida, Jacques (1987). The post card: from Socrates to Freud and beyond. (Alan Bass, Trans., with an introduction and additional notes). Chicago: University of Chicago Press. Derrida, Jacques (1994). Specters of Marx: The state of the debt, the work of mourning, and the New International. (Peggy Kamuf, Trans., with an introduction by Bernd Magnus & Stephen Cullenberg). New York; London: Routledge. Derrida, Jacques and Stiegler, Bernard (2002). Echographies of television: Filmed interviews. (Jennifer Bajorek, Trans.). Cambridge: Polity Press. Flood, Maria (forthcoming). France, Algeria and the Moving Image: Screening Histories of Violence (1962–2010). Oxford: Legenda. Gauch, Suzanne (2001). Muriel, or the disappearing text of the Algerian War. L’Esprit Créateur, 41 (4), 47–57. Muriel’s Disarticulations of Justice 233 http://www.euppublishing.com/action/showLinks?crossref=10.3366%2Fedinburgh%2F9780748646449.001.0001 http://www.euppublishing.com/action/showLinks?crossref=10.1177%2F095715589000100104 http://www.euppublishing.com/action/showLinks?crossref=10.1093%2Ffs%2Fknm064&isi=000247824900004 http://www.euppublishing.com/action/showLinks?crossref=10.1353%2Fesp.2010.0037 http://www.euppublishing.com/action/showLinks?crossref=10.1353%2Fesp.2010.0037 Greene, Naomi (1999). Landscapes of loss: The national past in postwar French cinema. Princeton, N.J.: Princeton University Press. Halimi, Gisèle, and de Beauvoir, Simone (1962). Djamila Boupacha. Paris: Gallimard. Hill, Leslie (1992). Filming ghosts: French cinema and the Algerian War. Modern Fiction Studies, 38 (3), 787–804. Khanna, Ranjana (2008). Algeria cuts: Women and representation, 1830 to the present. Stanford: Stanford University Press. Kite, B. (2009). Everything is just like you. Muriel DVD booklet (The Masters of Cinema Series, Argos Films), 5–23. Lazreg, Marnia (2008). Torture and the twilight of empire: from Algiers to Baghdad. Princeton, N. J.; Princeton University Press. Ling, Alex (2012). Parentheses in time: L’Année dernière à Marienbad (1961) as amorous event. Screening the Past, 35, http://www.screeningthepast.com/2012/08/parentheses-in- time-l’annee-derniere-a-marienbad-1961-as-amorous-event/ O’Brien, Alyssa (2000). Manipulating visual pleasure in Muriel. Quarterly Review of Film and Video, 17 (1), 49–61. Patton, Paul and Protevi, John (Eds.). (2003). Between Deleuze and Derrida. London: Continuum. Rancière, Jacques (2006). The politics of aesthetics: The distribution of the sensible, trans. Gabriel Rockhill. London: Continuum, 2006. Ricciardi, Alessia (2003). The ends of mourning: Psychoanalysis, literature, film. Stanford: Stanford University Press. Ross, Kristin (1995). Fast cars, clean bodies: Decolonization and the reordering of French culture. Cambridge, MA; London; MIT Press. Scarry, Elaine (1985). The body in pain: The making and unmaking of the world. Oxford: Oxford University Press. Silverman, Max (2013). Palimpsestic memory: The Holocaust and colonialism in French and Francophone fiction and film. New York and Oxford: Berghahn. Sontag, Susan (1963). Muriel ou le temps d’un retour. Film Quarterly, 17 (2), 23–7. Stora, Benjamin (1998). La gangrène et l’oubli. Paris: La Découverte. Tomlinson, Emily (2002). Torture, fiction, and the repetition of Horror: Ghost writing the past in Algeria and Argentina. PhD dissertation, University of Cambridge. Wilson, Emma (2006). Alain Resnais. Manchester: Manchester University Press. FILMOGRAPHY Chabrol, Claude (1970) Le Boucher (The Butcher). France/Italy. Godard, Jean-Luc (1960) Le Petit Soldat. France. Marker, Chris (1962) La Jetée. France. Pontecorvo, Gillo (1966) La Bataille d’Alger (The Battle of Algiers). Italy/Algeria. Resnais, Alain (1955) Nuit et brouillard (Night and Fog). France. Resnais, Alain (1959) Hiroshima mon amour. France/Japan. Resnais, Alain (1961) L’Année dernière à Marienbad (Last Year at Marienbad). France/Italy. Resnais, Alain (1963) Muriel ou le temps d’un retour (Muriel, or the Time of Return). France/ Italy. Film-Philosophy 20 (2016) 234 http://www.euppublishing.com/action/showLinks?crossref=10.1515%2F9781400823048 http://www.euppublishing.com/action/showLinks?crossref=10.1515%2F9781400883813 http://www.euppublishing.com/action/showLinks?crossref=10.1353%2Fmfs.0.0407&isi=A1992LQ61600013 http://www.euppublishing.com/action/showLinks?crossref=10.1353%2Fmfs.0.0407&isi=A1992LQ61600013 http://www.euppublishing.com/action/showLinks?crossref=10.1080%2F10509200009361479 http://www.euppublishing.com/action/showLinks?crossref=10.1080%2F10509200009361479 http://www.euppublishing.com/action/showLinks?crossref=10.1525%2Ffq.1963.17.2.04a00100 
work_b4oinzqicbbppbskfgxxorwps4	----	None 
work_b4r4jcf72rbahlamzswhe2jmoq	----	Abstract: In this study, Hume’s theory of justice is examined critically with respect to morality, politics, and society. In addition to that, Hume’s account of justice is questioned owing to the free rider problem. First, the relationship between morality and justice is investigated. Although Hume takes sympathy seriously in his early works, he does not take sympathy to be a sure foundation in his later works. Then, circumstances of justice are explained to find exact place and necessity of the virtue of justice. With the way of decon- struction, Hume shows the cases that the virtue of justice is needed. Justice is largely concerned with the environment and dispositions of persons. Next, the artificial character of justice will be explained. Then, Hume’s laws of justice will be given and assessed: stability of property, exchange of property by agreement, and performance of promises. It is argued that Hume’s laws of justice mostly relate to economic justice. The chief drive that causes individuals to act justly is disciplined self-interest. Self-interest should be organized for public utility. Laws of justice are created by human conventions. The primary sources of the investigation are: Hume’s A Treatise of Human Nature, [1739] 1978; An Enquiry Concerning the Principles of Morals, [1751] 1998 and Political Essays, 1994. Keywords: Hume, ethics, politics, economics; society, the rules of justice, the free rider problem. Öz: Bu çalışmada, David Hume’un adalet kuramı ahlak, siyaset ve toplum açısından eleştirel bir şekilde incelenmiştir. Bunlara ek olarak Hume’un adalet anlayışı bedavacılık sorunu sayesinde sorgulanmıştır. İlk olarak ahlak ve adalet arasındaki ilişki tahkik edilmiştir. Erken çalışmalarında Hume duygudaşlığı ciddiye alsa da sonraki çalışmalarında onu sağlam bir temel olarak görmez. Ardından adalet erdeminin tam yerini ve gerekliliğini belirlemek için adalet koşulları açıklanmıştır. Yapıbozum yoluyla Hume, adalet erdeminin gerekli olduğu durumları göstermektedir. Adalet büyük oranda insanların çevresiyle ve eğilimleriyle iliş- kilidir. Sonra, adaletin yapay yapısı açıklanacaktır. Sonra, Hume’un adalet yasaları verilecek ve değerlendi- rilecektir: mülkiyetin istikrarı, sözleşme yoluyla mülkiyet alışverişi ve ahde vefa. Hume’un adalet yasalarının ekseriyetle iktisâdî adaletle ilgili olduğu tartışılmıştır. Bireylerin adil davranmalarını sağlayan temel saik kontrol edilmiş kişisel çıkardır. Kişisel çıkar kamu yararına hizmet edecek şekilde düzenlenmelidir. Adalet yasaları insani uzlaşımlar sayesinde oluşturulmuştur. Araştırmanın başlıca kaynakları David Hume’un şu eserleridir: İnsan Doğası Üzerine Bir İnceleme, [1739] 1978; Ahlakın İlkeleri İle İlgili Bir Araştırma, [1751] 1998 ve Siyasi Denemeler, 1994. Anahtar Kelimeler: Hume, adalet kuralları, etik, siyaset, toplum, iktisat, bedavacılık sorunu. Research Assistant, Kırklareli University. enes.eryilmaz@klu.edu.tr © İlmi Etüdler Derneği DOI: 10.12658/M0279 insan & toplum, 2019, 9(1), 1-27. insanvetoplum.org Başvuru: 04.07.2018 Revize: 07.08.2018 Kabul: 10.08.2018 Online Basım: 30.11.2018 Enes Eryılmaz David Hume’s Account of Justice the journal of humanity and society insan toplum This study is the developed version of my thesis’s fourth chapter, see Eryılmaz, 2011. I sincerely thank Ahmet Zahid Demirciler, Halil Turan, Tacettin Turgay, and the anonymous reviewers for their constructive criticisms and valuable comments. insan & toplum 2 Introduction The problematic in Hume’s account of justice emerges when we test its capacity to overcome the free rider problem. The free rider problem occurs when the matter is about collective goods. The problem is roughly as follows: there are collective goods (e.g. public services such as streetlights) that everyone utilizes. Since everyone takes advantage of streetlights, everyone should contribute to the cost of this ser- vice. Otherwise streetlights would shut down for financial reasons. However, since persons utilize streetlights collectively, we cannot measure and invoice the cost one by one like domestic electric consumption. The free rider utilizes streetlights but does not contribute to the cost. The free rider thus thinks that everyone except me should contribute to the cost of streetlights. If I don’t pay, nothing happens to streetlights. So, she takes a free ride. Since the good is a collective one, the free rider cannot be found.1 A. T. Nuyen applies to the free rider problem in order to understand Hume’s account of justice in the article titled, “Hume’s Justice as a Collective Good” (Nuy- en, 1986). Nuyen considers that Hume sees and solves the problem with the no- tion of sympathy and moral education. However, it is known that Hume himself observes sympathy to be a slender basis so that he abandones it in his later works (Hume, 1998; Selby-Bigge, 1975, p. xxi; MacIntyre, 1984, p. 49). Thus, in this pa- per Hume’s account of justice will be examined from the point of view of the free rider. This investigation will show that Hume fails to overcome the free rider prob- lem in his account of justice. Neither sympathy nor public utility can convince the free rider. There is a serious gap in the foundation of justice. The free rider would not feel responsible to obey Hume’s laws of justice. Hume and Nuyen is so naïve with respect to the free rider problem. Justice and Morality Since the writing style of David Hume is not analogous to analytical, academic, and formalistic techniques of contemporary scholars, understanding his theses is a chal- lenging work. Perhaps, this is the fundamental reason of debates on his ideas relat- ed with epistemology, ethics, politics, and religion. The notion of justice is a typical indicator of this ambiguity in the philosophy of Hume. The first problem is whether 1 For the free rider problem in detail, see Hardin, 2013. Enes Eryılmaz, David Hume’s Account of Justice 3 justice is a moral issue or not. Some scholars claim that in Hume’s conception, jus- tice is not autonomous when ethics is considered, i.e. justice is a prudential issue. Others maintain that obeying the rules of justice is a moral subject. On the other hand, there is one more viewpoint that defends Humean conception of justice both as a moral and a prudential issue. The problem is not concerned with ethics in small communities, but as the population increases justice becomes a moral issue. Hume examines genealogy of justice in Book III of A Treatise of Human Nature.2 He starts his investigation with the question: “Why [do] we annex the idea of virtue to justice, and of vice to injustice” (Hume, 1978, p. 498). Hume inspects the source of justice in a hypothetical condition which is similar to the conception of state of nature: After men have found by experience, that their selfishness and confin’d generosity, acting at their liberty, totally incapacitate them for society; and at the same time have observ’d, that society is necessary to the satisfaction of those very passions, they are naturally induc’d to lay themselves under the restraint of such rules, as may render their commer- ce more safe and commodious. To the imposition then, and observance of these rules, both in general, and in every particular instance, they are at first induc’d only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible. But when society has become numerous, and has encreas’d to a tribe or nation, this interest is more remote; nor do men so readily perceive, that disorder and confusion follow upon every breach of these rules, as in a more narrow and contracted society. But tho’ in our own actions we may frequently lose sight of that interest, which we have in maintaining order, and may follow a lesser and more present interest, we never fail to observe the prejudice we receive, either mediately or immediately, from the injustice of others; as not being in that case either blinded by passion, or byass’d by any contrary temptation. Nay when the injustice is so distant from us, as no way to affect our interest, it still displeases us; because we consider it as prejudicial to human society, and pernicious to every one that approaches the person guilty of it (Hume, 1978, pp. 498-499). In the first stage of a society, in a small community, if a merchant is not loyal to his promises, he could not do business with other individuals. However, in a country or a nation state, cheaters can easily find new customers. Free riders take part at that point. In a small community they could not free ride, because they get caught. But in a large society they can vanish without a trace. They can sustain their interests in the short term, but in the long-term knaves would fail. This “natural myopia” (Yellin, 2000, p. 378) puts obstacles in the way of private and public inter- est. Interest thus is not sufficient to motivate just actions in large societies.3 Here 2 Hereafter this book will be abbreviated as Treatise. 3 Of course, in our global world motivating persons to be just is much more difficult. Certainly, global insan & toplum 4 Humean sympathy takes the role; by sympathy the road to morality is prepared in the case of justice. People communicate their feelings thanks to sympathy, so no one can remain insensitive to injustice. David Hume explicates source of the moral- ity of just actions in the level of state: We partake of their uneasiness by sympathy; and as every thing, which gives uneasiness in human actions, upon the general survey, is call’d Vice, and whatever produces satis- faction, in the same manner, is denominated Virtue; this is the reason why the sense of moral good and evil follows upon justice and injustice. And though this sense, in the present case, be deriv’d only from contemplating the actions of others, yet we fail not to extend it even to our own actions. The general rule reaches beyond those instances, from which it arose; while at the same time we naturally sympathize with others in the sen- timents they entertain of us. Thus self-interest is the original motive to the establishment of justice: but a sympathy with public interest is the source of the moral approbation, which attends that virtue (Hume, 1978, pp. 499-500).4 For this reason, the status of virtue is assigned to justice and vice to injustice. Approval of public interest by sympathy is the starting place of justice in morality. Injustice is destructive to public interest. It is harmful to the interests of human beings indirectly. Therefore, the moral basis of justice is clear. Hume asserts that since justice is beneficial to humanity, the notion turns out to be an ethical virtue: “no virtue is more esteemed than justice, and no vice more detested than injustice; nor are there any qualities, which go farther to the fixing the character, either as amiable or odious” (Hume, 1978, p. 577). Hence, for Hume, justice grounds itself on public interest with the support of sympathy. In this way, people obey the laws of justice even if they do not have direct interests. Next, Hume relates sympathy to the public good. Moral approbation of justice and disapproval of injustice is possi- ble in this approach: [s]ince there is a very strong sentiment of morals, which in all nations, and all ages, has attended them, we must allow, that the reflecting on the tendency of characters and mental qualities, is sufficient to give us the sentiments of approbation and blame. Now as the means to an end can only be agreeable, where the end is agreeable; and as the good of society, where our own interest is not concern’d, or that of our friends, pleases only by sympathy: It follows, that sympathy is the source of the esteem, which we pay to all the artificial virtues (Hume, 1978, p. 577). justice need better justifications to be reached, because one cannot mention a society of nations. With the help of communication across the world, borders are very loose now. There should be a system of global ethic for individuals in a cosmopolitan world; see Küng, 1998. 4 For a summary of Humean sympathy see Cohon, 2010. Enes Eryılmaz, David Hume’s Account of Justice 5 Hence, the artificial virtue justice is possible thanks to the Humean sympathy. The conception of justice is obviously in accordance with Hume’s moral thought. Moreover, it can be said that “[u]nlike many contemporary political theorists, Da- vid Hume sought to ground his political philosophy on epistemological and mor- al foundations” (Church, 2007, p. 169). Likewise, Gilles Deleuze locates Hume’s conception of justice under ethics as well: “[u]nder the name of belief, we have a practise of the understanding, and under the form of social organization and justice, a theory of morality” (Deleuze, 1991, p. 32). Knud Haakonssen identifies Humean principles of justice with his normative rules too: “the basic rules of justice pertaining to property and contract come to be accepted as moral rules” (Haakons- sen, 1993, pp. 190-191).5 David Gauthier also confirms the relation of justice and morality in Hume’s ethical and political thought: “[a]rrangements may be expected to be useful to each person; therefore they are just. These arrangements may also be expected to have beneficial consequences; therefore they receive moral approval, and justice is a virtue” (Gauthier, 1979, p. 18). Sharon Krause formulates this idea as follows: “[w]hen we contemplate justice through the lens of sympathy, the moral sentiment of approbation arises in us” (Krause, 2004, p. 641).6 To understand Hume’s position on the relation of justice and ethics clearly, it is helpful to describe “first period”7 with the role of prudence and “second stage”, namely large society, with morality. In a small society, justice is more related with prudence because interests of individuals are present, and they can see their inter- ests. If they do not abide by the laws of justice and working together, they would in- stantly face the consequences. For instance: “[t]wo neighbours may agree to drain a meadow, which they possess in common; because ‘tis easy for them to know each others mind; and each must perceive, that the immediate consequence of his fail- ing in his part, is the abandoning the whole project” (Hume, 1978, p. 538). Neighbors accordingly comply with the rules that manage society. When the population is low, “prudence will be a sufficient motive to induce proper co-oper- ation. In the case of a collective good such as national defense, which affects the whole nation, prudence alone is not sufficient” (Nuyen, 1986, p. 51). Nuyen seeks to explicate the relation of prudence and morals in terms of justice: 5 Furthermore, Haakonssen argues that Hume was influenced from the eighteenth-century moral thouu- ght which is highly theological and teleological; see Haakonssen, 1993, pp. 190-191. 6 Krause also elaborates his understanding of Hume’s view of justice with emphasizing public interest: “[s] ympathy takes us beyond self-interest by communicating to us the pleasures and pains of others, thereby engaging our interest in broader concerns and ultimately in the common good” (Krause, 2004, p. 641). 7 The small community is examined in the beginning of this article. insan & toplum 6 An individual does not see that his or her refusal to pay will undermine national se- curity. A free rider believes that not too many people have the same idea. Prudence, therefore, tends to induce us to take a free ride. If we do pay our fair share in this case, the motive that induces us to do so is not prudence, but something like the sense of fa- irness based on the realisation that by not paying we are hurting others who are willing to pay. It is a sense of fair play based on an empathy we have for others (Nuyen, 1986, pp. 51-52). That is to say, sympathy is required in large societies to realize and reinforce the rules of justice. Because of this factual and historical experience, i.e., transition to a large society, just persons pass “from a narrow prudential perspective, that gave us a natural obligation to adjust our passions and concur in a scheme of conduct, to a moral point of view” (Taylor, 1998, p. 20). For this reason, the principles of justice constitute an ethical matter in nation states. Nuyen thinks that Hume solves the free rider problem by appeal to sympathy, but why does a free rider sympathize with others? If she has a fair or moral perspective, she would not free ride anyway. If she does not view others fairly and ethically, she would free ride altogether. It seems like sympathy is not a satisfactory concept to overcome the free rider problem. After that Hume reckons justice among artificial moral duties in the Political Essays: The second kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation, when we consider the necessities of human society, and the impossibility of supporting it, if these duties were neglected. It is thus justice or regard to the property of others, fidelity or the observance of promises, become obligatory, and acquire an authority over mankind (“Of the Origi- nal Contract,” 1994, p. 196). Unlike other passages, in this passage he highlights justice as a moral duty de- pending on the sense of obligation. Haakonssen interprets justice in line with duty and obligation as well.8 Yet the concept of moral duty or the sense of obligation does not make sense for the free rider. She thinks that it does not make any differ- ence if she would not obey the rules of justice, because everyone except she obeys 8 “In a social group where just behaviour is generally approved as good because it produces social utii- lity, people who in a particular case lack any motive for justice … will tend to have a motive supplied. Because everyone generally approves of just behaviour as if it sprang from a separate laudable motive, people lacking such a motive will feel morally deficient as compared with their surroundings and will come to disapprove of or hate themselves on that account. In this they will be reinforced by the disap- proval of their fellows. This self-loathing becomes the motive or the will by which people act justly as a matter of obligation” (Haakonssen, 1993, p. 191). Enes Eryılmaz, David Hume’s Account of Justice 7 the rules of justice. Although she is obligated to do his part in principle, it does not matter in practice. Public order is stable and economic system works adequately as long as free riders are in the minority. Moral duty and the sense of obligation is not a sufficient reason to force free riders to act justly. In the conclusion of the Treatise, Hume, however, stresses sympathy with public interest in the source of the morality of justice again: We may observe, that all the circumstances requisite for its [sympathy’s] operation are found in most of the virtues; which have, for the most part, a tendency to the good of society, or to that of the person possess’d of them. If we compare all these circumstan- ces, we shall not doubt, that sympathy is the chief source of moral distinctions; especi- ally when we reflect, that no objection can be rais’d against this hypothesis in one case, which will not extend to all cases. Justice is certainly approv’d of for no other reason, than because it has a tendency to the public good: And the public good is indifferent to us, except so far as sympathy interests us in it. We may presume the like with regard to all the other virtues, which have a like tendency to the public good. They must derive all their merit from our sympathy with those, who reap any advantage from them: As the virtues, which have a tendency to the good of the person possess’d of them, derive their merit from our sympathy with him (Hume, 1978, p. 618). However, Hume gives up employing the notion of sympathy in his later work, An Enquiry Concerning the Principles of Morals (1751).9 In this passage of the Treatise (1739), this is the last usage of sympathy as the source of morals. Selby-Bigge un- derlines this change: “[t]he psychology of sympathy which occupies so much space in Bk. II, and on which so much depends in Bk. III of the Treatise, is almost entirely ignored in the [second] Enquiry” (Selby-Bigge, 1975, p. xxi). So, Hume does not see sympathy in the foundation of morality of just actions in the second Enquiry. Alasdair MacIntyre too discerns this abandonment. MacIntyre says that Hume in- vented the concept of sympathy to justify the rules of justice, but since sympathy is a “philosophical fiction” (1984: 49) it could not provide good reasons for people to obey the laws of justice.10 In Whose Justice? Which Rationality? MacIntyre rejects 9 Hereafter this book will be abbreviated as second Enquiry. 10 “In the Treatise Hume posed the question why, if such rules as those of justice and of promise-keeping were to be kept because and only because they served our long-term interests, we should not be justi- fied in breaking them whenever they did not serve our interests and the breach would have no further ill consequences. In the course of formulating this question he denies explicitly that any innate spring of altruism or sympathy for others could supply the defects of an argument from interest and utility. But in the Enquiry he feels compelled to invoke just such a spring. Whence this change? It is clear that Hume’s invocation of sympathy is an invention intended to bridge the gap between any set of rea- sons which could support unconditional adherence to general and unconditional rules and any set of insan & toplum 8 sympathy as a satisfactory motivation: “the sympathy which we do indeed feel for particular others on occasion will not furnish a motive for a regard for the rules of justice whomsoever they may protect” (MacIntyre, 1988, p. 307). Additionally, MacIntyre refuses interest as a justification of principles of justice: “neither inter- est nor sympathy seems able to explain why each one of us should approve of the rules of justice or of the administration of those rules by government” (1988, p. 306). Both Hume and Nuyen thus fail to overcome the free rider problem, because neither the concept of sympathy nor public good can persuade free riders. These arguments could not provide firm justification or motive in order to compel free riders to obey the laws of justice. They act only from self-interest and do not think about the rest. After leaving behind the principle of sympathy in the Treatise, Hume focuses on the principle of utility to supply ethical basis of the concept of justice in the second Enquiry. He preferred public interest in the Treatise to ground the morality of justice, but in the second Enquiry Hume employs the notion of utility. David Miller draws an attention to this nuance: “Hume uses ‘the public interest’ in the Treatise and ‘utility’ in the Enquiry with, so far as one can tell, an identical mean- ing. No doubt this reflects changing intellectual fashions” (Miller, 1976, p. 161). Miller argues that Hume modified his ideas on justice and public interest in his second Enquiry. Miller criticizes Hume for interrupting relations with justice and ethics: Hume “justified the existence of rules of justice in terms of their utility, and refused to see justice as an independent moral value” (1976, p. 170). It seems that Miller is right in condemning opinions of Hume in this topic, because the measure of justice becomes utility. The source of justice loses its moral autonomy. The value of justice is determined by public utility now. This interpretation can be inferred evidently from the beginning part of section three of the second Enquiry: Justice is useful to society, and consequently that part of its merit, at least, must arise from that consideration, it would be a superfluous undertaking to prove. That public utility is the sole origin of justice, and that reflections on the beneficial consequences of this virtue are the sole foundation of its merit; this proposition, being more curious and important, will better deserve our examination and enquiry (Hume, 1998, p. 13). reasons for action or judgment which could derive from our particular, fluctuating, circumstance-gov- erned desires emotions and interests. Later on Adam Smith was to invoke sympathy for precisely the same purpose. But the gap of course is logically unbridgable, and ‘sympathy’ as used by Hume and Smith is the name of a philosophical fiction” (MacIntyre, 1984, p. 49). Enes Eryılmaz, David Hume’s Account of Justice 9 Finally, it is apparent that Hume sees public utility as the foundation of the value of justice. He puts off the principle of sympathy to ground just actions. In his later work, Hume gives emphasis to public utility for the virtue of justice. Yet public utility could not solve the problem of free rider either. The free rider utilizes from the beneficial consequences of the rules of justice, but she herself does not obey the rules. How will Hume or Nuyen convince the free rider? Why should she act ac- cording to the rules of justice? Since everyone except she obeys the rules of justice, social and economic life goes on. There is not a total defect in the system and public order is preserved. Which motive will force the free rider to comply with the laws of justice? The public utility argument could not persuade the free rider too. Circumstances of Justice To delineate the concept of justice then Hume presents some hypothetical condi- tions. In a sense, he offers thought experiments. In this way, Hume shows where and when we need justice. Throughout his investigation, he has recourse to nega- tive arguments in locating the notion of justice. Hume demonstrates where and when people do not and should not take into consideration the laws of justice. The essential requirements of justice then become visible. For Hume, therefore, it should first be understood where the laws of justice do not work. There are some conditions, communities, and beings for which the rules of justice become useless. Hume enumerates these exceptional states in the third section of the second Enqui- ry. To Hume, we do not need the idea of justice in these cases: 1. Unlimited abundance of needs 2. Extensive benevolence of man 3. Shortage of all basic needs 4. Perfect greed and malice of a society 5. State of emergency and war 6. Punishment of criminals 7. A class of rational creatures with mental and physical disabilities 8. Animals These cases show where justice becomes useless. Counter situations thus indi- cate required states of justice. So, these circumstances lead to the virtue of justice. Hume goes on to say that “there are some virtues, that produce pleasure and appro- bation by means of an artifice or contrivance, which arises from the circumstances and necessity of mankind. Of this kind I assert justice to be” (Hume, 1978, p. 477). Now, let us try to see these conditions of justice one by one. insan & toplum 10 The first imaginary situation is a place where there is a profusion of every type of needs and facilities. Anybody can obtain whatever she or he wants in large quan- tities. There is no need to argue and fight for any object in this prosperous state. Hume describes this condition as follows: Let us suppose that nature has bestowed on the human race such profuse abundance of all external conveniencies, that, without any uncertainty in the event, without any care or industry on our part, every individual finds himself fully provided with whatever his most voracious appetites can want, or luxurious imagination wish or desire. His natural beauty, we shall suppose, surpasses all acquired ornaments: The perpetual clemency of the seasons renders useless all clothes or covering: The raw herbage affords him the most delicious fare; the clear fountain, the richest beverage. No laborious occupation required: no tillage: no navigation. Music, poetry, and contemplation form his sole bu- siness: conversation, mirth, and friendship his sole amusement (Hume, 1998, p. 13). Hume concludes that the virtue of justice would be pointless in such a state. Since dispute and aggression will not occur in a satisfactory state, people do not require justice and equity: “in such a happy state, every other social virtue would flourish, and receive tenfold increase; but the cautious, jealous virtue of justice would never once have been dreamed of ” (Hume, 1998, p. 13; italics mine). In this circumstance, unlimited abundance of needs annihilates the jealous virtue of justice. Hume draws a relation between the virtue of justice and jealousy: we dis- cover that in this happy state there would be no jealousy. Given that in the perfect “welfare state” there is nothing to quarrel for, it is impossible to be jealous. So, if there is no jealousy, there is no disagreement. If there is no disagreement, there is no need for the virtue of justice. Hume contends that jealousy of advantage is an assumption of justice: “if nature supplied abundantly all our wants and desires, that the jealousy of interest, which justice supposes, could no longer have place” (1978, p. 494). Jealous virtue of justice therefore presumes jealousy of benefit. We cannot conceive of justice unless there is some jealousy of interest. Since extreme abundance does not permit jealousy of others’ objects and possessions, justice becomes entirely impractical. Hume supports his ideas at that point by means of questions, such as “[f]or what purpose make a partition of goods, where every one has already more than enough? Why give rise to property, where there cannot pos- sibly be any injury?” (Hume, 1978, p. 13). Why should anyone insist on mine and thine? The rules of justice and property would be unnecessary in this ideal state. Hume concludes that: “justice, in that case, being totally USELESS, would be an idle ceremonial, and could never possibly have place in the catalogue of virtues” (Hume, 1998, p. 13). Enes Eryılmaz, David Hume’s Account of Justice 11 The second thought experiment of Hume is an ideal fraternity where human beings are extremely benevolent to each other.11 Man considers interests of others rather than their subjective good. In case of extensive generosity justice becomes useless: “[e]ncrease to a sufficient degree the benevolence of men, or the bounty of nature, and you render justice useless, by supplying its place with much nobler vir- tues, and more valuable blessings” (Hume, 1978, pp. 494-495). For instance, when a son asks for a considerable amount of money from his father, the father gives the required amount and does not make a written agreement. The rules of justice are not necessary between a father and a son. Hypothetically, this is a family relation between the members of the society which is extremely benevolent: Why raise land-marks between my neighbour’s field and mine, when my heart has made no division between our interests; but shares all his joys and sorrows with the same force and vivacity as if originally my own? Every man, upon this supposition, being a second self to another, would trust all his interests to the discretion of every man; without jealousy, without partition, without distinction. And the whole human race would form only one family; where all would lie in common, and be used freely, without regard to property; but cautiously too, with as entire regard to the necessities of each individual, as if our own interests were most intimately concerned (Hume, 1998, p. 14). In such a state, each person is a supernatural being. Individuals treat each other as if they live in a big family; nobody is “other,” or “alien.” The principle of humanity is endorsed by the entire community. As they are close friends, they do not distinguish their commodities and facilities; “a cordial affection renders all things common among friends” (Hume, 1978, p. 495).12 They use their goods with others without hesitation. Likewise, “married people in particular mutually lose their property, and are unacquainted with the mine and thine, which are so necessary” (Hume, 1978, p. 495). Until couples are divorced, their properties and goods are considered together. Hume generalizes these specific cases and says that “if every one had the same affection and tender regard for every one as for himself; justice and injustice would be equally unknown among mankind” (Hume, 1978, p. 495). 11 It is apparent that circumstances and dispositions are very significant in the prerequisites of justice. There is a parallel between the conditions of justice and human beings. Hume also emphasizes situa- tions and tempers in the actions of men. 12 This idea reminds Aristotle’s famous statement in Nicomachean Ethics: “when people are friends, they have no need of justice” (Aristotle, 2011, Book 8, 1155a27). insan & toplum 12 In the following two conditions, David Hume conceives of opposite situations and imagines a place where there is a shortage of all vital requirements: a severe scarcity of basic needs. Again, the laws of justice are in limbo for a period when cir- cumstances become normal. In this state, “[g]rievous shortage would wreck laws of justice;” (Hardin, 2007, p. 141) similarly the rules of justice would be suspended in a disaster too. Catastrophic disasters demand emergency operations and the virtue of justice can be an obstacle in a state of necessity. Hume describes this atmosphere as follows: Suppose a society to fall into such want of all common necessaries, that the utmost fru- gality and industry cannot preserve the greater number from perishing, and the whole from extreme misery; it will readily, I believe, be admitted, that the strict laws of justice are suspended, in such a pressing emergence, and give place to the stronger motives of necessity and self-preservation. Is it any crime, after a shipwreck, to seize whatever means or instrument of safety one can lay hold of, without regard to former limitations of pro- perty? Or if a city besieged were perishing with hunger; can we imagine, that men will see any means of preservation before them, and lose their lives, from a scrupulous regard to what, in other situations, would be the rules of equity and justice? (Hume, 1998, p. 15). Obviously, people will try to survive in that condition. Since, “[t]he USE and TENDENCY of that virtue is to procure happiness and security, by preserving or- der in society,” (Hume, 1998, p. 15) justice can be ignored in excessive famine and wants. Prudence takes the role; the common people does not consider the princi- ples of justice in such a situation. For example, a hopeless person about to die of hunger should not be punished because of stealing something to eat. In the same way, “[t]he public, even in less urgent necessities, opens granaries, without the consent of proprietors; as justly supposing, that the authority of magistracy may, consistent with equity, extend so far…” (Hume, 1998, p. 15). Thus, the virtue of justice is of no use again. In the fourth hypothetical state, Hume imagines a society which is governed by perfect greed and malice. This is the state of nature as described by Thomas Hobbes in Leviathan (1994),13 but I think it is best portrayed in William Golding’s novel Lord of the Flies (1962). David Hume gives a picture of this savage condition in the second Enquiry: 13 Hume also refuses to see Thomas Hobbes as the first philosopher who conceives of the state of nature and argues that it can be found in the works of Cicero and Plato as well. For the details see second Enquiry (Hume, 1998, p. 17). Enes Eryılmaz, David Hume’s Account of Justice 13 Suppose likewise, that it should be a virtuous man’s fate to fall into the society of ruffi- ans, remote from the protection of laws and government; what conduct must he emb- race in that melancholy situation? He sees such a desperate rapaciousness prevail; such a disregard to equity, such contempt of order, such stupid blindness to future consequ- ences, as must immediately have the most tragical conclusion, and must terminate in destruction to the greater number, and in a total dissolution of society to the rest. He, meanwhile, can have no other expedient than to arm himself, to whomever the sword he seizes, or the buckler, may belong: To make provision of all means of defence and security (Hume, 1998, pp. 15-16). A man has no choice in those terms. From Hume’s point of view, behaving in accordance with the society is so natural. When the public is barbarous, you become brutal as well. When a state wage war with an uncivilized community “who observed no rules even of war, the former must also suspend their observance of them, where they no longer serve to any purpose; and must render every action or rencounter as bloody and pernicious as possible to the first aggressors” (Hume, 1998, p. 16). One suspends principles of justice and humanity in this situation. Hence, in this state of affairs, a man’s “particular regard to justice being no longer of use to his own safety or that of others, he must consult the dictates of self-preservation alone, without concern for those who no longer merit his care and attention” (Hume, 1998, p. 16). Consequently, the state of necessity trumps the laws of justice and equity. In Hume’s view, the fifth set of condition is the state of war and emergency. In those circumstances, the virtue of justice is adjourned until the end of warfare or emergency. First, Hume asserts that state of war dictates exceptional laws: “the rage and violence of public war; what is it but a suspension of justice among the warring parties, who perceive, that this virtue is now no longer of any use or advantage to them?” (Hume, 1998, p. 16). To Hume, an administration should defer the rules of justice in case of war. Second, a state of emergency causes interruption of justice as well. Hume argues that “the rules of justice may be dispensed with in cases of urgent necessity” (“Of Passive Obedience,” 1994, p. 203). Hume justifies suspension of the laws of justice in necessary situations. He grounds his argument in public utility: As the obligation to justice is founded entirely on the interests of society, which requ- ire mutual abstinence from property, in order to preserve peace among mankind; it is evident, that, when the execution of justice would be attained with very pernicious consequences, that virtue must be suspended, and give place to public utility, in such extraordinary and such pressing emergencies. The maxim, fiat Justitia & ruat Coelum, let justice be performed, though the universe be destroyed, it apparently false, and by sacrificing the end to the means, shews a preposterous idea of the subordination of duties (“Of Passive Obedience,” 1994, p. 202). insan & toplum 14 Hume employs one more exception in the adherence of the laws of justice: a state of emergency and necessity makes exceptions to justice.14 Hume gives this privilege to the sovereign state for the sake of raison d’etat: “[a]ll politicians will allow, and most philosophers, that REASONS of STATE may, in particular emer- gencies, dispense with the rules of justice, and invalidate any treaty or alliance, where the strict observance of it would be prejudicial” (Hume, 1998, p. 29). Fur- ther, Hume supports this authoritarian supremacy with the delay of the laws of justice in his ideal commonwealth: “[t]he protector, the two secretaries, the coun- cil of state, with any five or more that the senate appoints, are possessed, on ex- traordinary emergencies, of dictatorial power for six months” (“Idea of a Perfect Commonwealth,” 1994, p. 227). However, the problem is once the ruler seizes this supreme power, why should she leave this position and its prerogatives? One can easily prolong this period; as a matter of fact, states of exceptions are usually ex- tended arbitrarily in history. So, shelving laws of justice is an ambiguous and open practice.15 Hume’s sixth exception concerns punishment of public criminals. He recom- mends that persons who harm public order should be penalized according to their “own laws.” For Hume, this is the best way to discipline public criminals. Hence, the laws of justice may be forgotten once again. He explains the postponement of justice in the second Enquiry: When any man, even in political society, renders himself by his crimes, obnoxious to the public, he is punished by the laws in his goods and person; that is, the ordinary rules of justice are, with regard to him, suspended for a moment, and it becomes equitable to inflict on him, for the benefit of society, what otherwise he could not suffer without wrong or injury (Hume, 1998, p. 16). Public utility justifies this exception once more. Rules of justice happen to be futile again to maintain the order of society. The seventh thought experiment is about an imaginary class of rational crea- tures who have mental and physical disabilities. A vulnerable group of people should be treated with the principle of humanity rather than the principle of justice. It 14 Hume’s ideas on the state of emergency and necessity run through the minds Giorgio Agamben’s state of exception if the laws of justice are considered as law. Agamben, however, rejects “suspension of law” in the state of exception. For Agamben’s state of exception see Agamben, 2005, pp. 1-4. 15 For instance, “from a juridical standpoint the entire Third Reich can be considered a state of exception that lasted twelve years” (Agamben, 2005, p. 2). Enes Eryılmaz, David Hume’s Account of Justice 15 seems that these helpless people may be taken as psychologically ill or handicapped in need of nursing. To Hume, benevolence precedes justice in such a situation: Were there a species of creatures intermingled with men, which, though rational, were possessed of such inferior strength, both of body and mind, that they were incapable of all resistance, and could never, upon the highest provocation, make us feel the effects of their resentment; the necessary consequence, I think, is that we should be bound by the laws of humanity to give gentle usage to these creatures, but should not, properly speaking, lie under any restraint of justice with regard to them, nor could they possess any right or property, exclusive of such arbitrary lords (Hume, 1998, p. 18). In that condition, suspension of rules of justice may be acceptable, but Hume holds this inequality as good: “[o]ur intercourse with them could not be called so- ciety, which supposes a degree of equality; but absolute command on the one side, and servile obedience on the other” (Hume, 1998, p. 18). These independent per- sons control themselves if they wish, but they do not cross the line because of tenderness and benevolence. Therefore, “as no inconvenience ever results from the exercise of a power, so firmly established in nature, the restraints of justice and property, being totally useless, would never have place in so unequal a confederacy” (Hume, 1998, p. 18). Rules of justice suspended in this case as well. Finally, Hume says that relations of human beings with a class of rational crea- tures who have psychological and bodily disabilities (the former group) bear the same resemblance to their relations with animals: mankind has superiority over animals (Hume, 1998, p. 18).16 Rules of justice do not work before the animals too. Man behaves towards animals in accordance with benevolence and compassion. For Hume, the laws of justice cannot be employed for animals. Hence, in certain conditions compliance with the rules of justice become worthless, in others it is against public utility, and in some cases, it is at odds with the principle of humanity. In his investigation, Hume first establishes where justice is futile and pernicious in the circumstances and says that justice is necessary ex- cept these conditions. Hume discusses the subject in a similar way in the Treatise: 16 Meanwhile, Hume, having made an analogy between helpless people and animals, he also observes the relations of power between the American Indians and the “civilized Europeans” in the same fashion. He confesses that Europeans suspended principles of justice and humanity in America: “[t]he great su- periority of civilized EUROPEANS above barbarous INDIANS, tempted us to imagine ourselves on the same footing with regard to them, and made us throw off all restraints of justice, and even of humanity, in our treatment of them” (Hume, 1998, p. 18). insan & toplum 16 ‘tis evident, that the only cause, why the extensive generosity of man, and the perfect abundance of every thing, wou’d destroy the very idea of justice, is because they render it useless; and that, on the other hand, his confin’d benevolence, and his necessitous condition, give rise to that virtue, only by making it requisite to the publick interest, and to that of every individual. (Hume, 1978, p. 496). If extensive generosity of men does not permit the rise of justice, then limited generosity can provide it. If extreme abundance and shortage makes justice point- less, then some degree of requirements makes justice possible. Hume’s negative approach to the laws of justice is apparent in the second Enquiry as well: Thus, the rules of equity or justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that UTILITY, which re- sults to the public from their strict and regular observance. Reverse, in any considerable circumstance, the condition of men: Produce extreme abundance or extreme necessity: Implant in the human breast perfect moderation and humanity, or perfect rapacious- ness and malice: By rendering justice totally useless, you thereby totally destroy its es- sence, and suspend its obligation upon mankind. (Hume, 1998, p. 16). Although Hume has a negative attitude in his analysis, he nevertheless wishes a society which is compatible with the rules of justice. He aspires to find the exact place of the idea of justice, and he follows the principle of utility in this pursuit. Besides, Hume’s arguments about conditions of justice point out that the vir- tue of justice should be considered in its background. A just person comes into existence in a community. For Hume, the moral subject is in conformity with the society and circumstances. There is no tension between the society and the individ- ual. If there are circumstances to be just, one can behave justly; if not, one does not act justly. There is no distinction between the empirical and the intelligible realm in Hume’s theory of justice. The “moral subject” adheres to the community in which she exists. Circumstantial and empirical environment is notoriously important in the observance of the rules of justice. So, if one lives in a society that is not just, then one acts unjustly too. If one lives in a group of people who are just because of their interests and public utility, then one becomes a just individual too. The reverse is not true. If a society is constituted by immoral persons, you do not have to be just. Circumstances and human beings are therefore very significant in de- termining justice. To Hardin, Hume “shows that we cannot sensibly have a theory of justice that is not contingent on human nature and the conditions that humans face in their world” (Hardin, 2007, p. 140). So, it appears that there is no idea of justice regardless of interests in Hume. Unlike Plato, there is not a world of ideas Enes Eryılmaz, David Hume’s Account of Justice 17 in which justice exists. In Hume’s view, the virtue of justice is in the sensible world and it is related with the human condition. Despite John Rawls’ entire approval of Hume’s circumstances of justice,17 the Humean conception of justice is unlike the Rawlsian; because the Rawlsian theory of justice is abstract and ideal, whereas Hume’s notion of justice is concerned with normal conditions. Hardin draws our attention to this point: “Hume demonstrates that any notion of justice we might be committed to cannot simply be abstract or inferred entirely from reason or ideal- ized circumstances” (2007, p. 140). It is obvious that Hume’s anti-rationalistic atti- tude can be seen in his conception of justice. Hardin underlines this point: “Hume’s empiricism and naturalism (and by his lights his Newtonian stance) on these fac- tors are forcefully represented by his discussion of the empirical circumstances of justice” (2007, p. 139). Dependence of justice on human and social conditions evi- dently indicates Hume’s empirical methodology.18 Artificial Virtue of Justice Hume seeks out motivations behind actions in determining virtue and vice; so, in Part II of Book III of the Treatise, he inspects motives behind just actions. Hume cannot find any natural motive behind just actions. Accordingly, he concludes that “the sense of justice and injustice is not derived from nature, but arises artificial- ly, though necessarily from education, and human conventions” (Hume, 1978, p. 483). Conditions and necessities of nature compel men to establish rules of jus- tice. Hence, convention and education foster the sense of justice. For Hume, we need justice because of the troubles in human nature and society, such as self-love, limited generosity, and scarcity of goods (Hume, 1978, p. 495). These deficiencies cannot be removed by natural ways. Hume emphasizes this fact in the Treatise: In vain shou’d we expect to find, in uncultivated nature, a remedy to this inconvenience; or hope for any inartificial principle of the human mind, which might controul those partial affections, and make us overcome the temptations arising from our circumstan- ces (Hume, 1978, p. 488). 17 “Now this constellation of conditions I shall refer to as the circumstances of justice. Hume’s account of them is especially perspicuous and the preceding summary adds nothing essential to his much fuller discussion” (Rawls, 1999, p. 110). 18 This conclusion forces us to see Alasdair MacIntyre as right concerning the is/ought question and juss- tice: “Hume himself derives “ought” from “is” in his account of justice” (MacIntyre, 1959, p. 459). insan & toplum 18 Hence, to Hume, human conventions and artifices19 can bring relief to these problems. What does human convention mean? What is the characteristic of a con- vention? Is it a contract, a treaty or a promise? Hume mentions the following ideas regarding these questions: This convention is not of the nature of a promise: For even promises themselves, as we shall see afterwards, arise from human conventions. It is only a general sense of com- mon interest; which sense all the members of the society express to one another, and which induces them to regulate their conduct by certain rules. I observe, that it will be for my interest to leave another in the possession of his goods, provided he will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. When this common sense of interest is mutually expressed, and is known to both, it produces a suitable resolution and behaviour. And this may properly enou- gh be call’d a convention or agreement betwixt us, tho’ without the interposition of a promise; since the actions of each of us have a reference to those of the other, and are perform’d upon the supposition, that something is to be perform’d on the other part (Hume, 1978, p. 490). So, convention is neither a compact20 nor a promise. Convention is a sensation of public interest that arranges actions of people. In the second Enquiry, Hume re- lates human conventions with “public utility” (Hume, 1998, p. 98).21 In the Treatise he explains conventions by referring to values of gold and silver: “[i]n like manner do gold and silver become the common measures of exchange, and are esteemed sufficient payment for what is of a hundred times their value” (Hume, 1978, p. 490). The same is true for the money we use: if individuals did not accept money as a measure of value and use it as everyone does, it would be a piece of paper. Human convention adds value to money. Let us now consider Hume’s distinction between natural and artificial virtues. The difference between natural and artificial virtues becomes visible when the con- 19 To Hume, artifice means that “the rules of justice were invented by human beings in the course of their natural history and thus cannot be considered original, or as innate principles made known to men by nature’s Author” (Lecaldano, 2008, p. 258). 20 Macnabb underlines this view in Hume: “The principles of justice are, indeed, founded on artifices, and are therefore not “natural laws”. But they are not founded on any contract, since the keeping of contracts is itself one of the principles of justice. They are founded on customary conventions which command our approbation because of their utility” (Macnabb, 1991, p. 171). 21 “[I]f by convention be meant a sense of common interest; which sense each man feels in his own breast, which he remarks in his fellows, and which carries him, in concurrence with others, into a general plan or system of actions, which tends to public utility; it must be owned, that, in this sense, justice arises from human conventions” (Hume, 1998, p. 98). Enes Eryılmaz, David Hume’s Account of Justice 19 sequences are considered. For instance, benevolence is a natural virtue and justice an artificial one; Hume associates benevolence with a wall, and justice with a vault: The happiness and prosperity of mankind, arising from the social virtue of benevolence and its subdivisions, may be compared to a wall, built by many hands, which still rises by each stone that is heaped upon it, and receives increase proportional to the diligence and care of each workman. The same happiness, raised by the social virtue of justice and its subdivisions, may be compared to the building of a vault, where each individual stone would, of itself, fall to the ground; nor is the whole fabric supported but by the mutual assistance and combination of its corresponding parts (Hume, 1998, p. 97). This striking illustration shows the distinction between justice and benevo- lence clearly, or the one between artificial virtues and natural virtues. Therefore, if a just society is dreamed of, all human beings should obey the laws of justice completely. This is also the ground of inflexible laws that Hume advocates. In- flexible laws can be secured when every single person sticks to them. When the social virtue of justice is endorsed in this manner, it can be satisfied; otherwise the vault would be demolished. In artificial virtues, all people should comply with plans and rules of conduct. This is the critical point in the distinction between natural and artificial virtues. Hume confirms and elaborates this distinction in the Treatise: The only difference betwixt the natural virtues and justice lies in this, that the good, which results from the former, arises from every single act, and is the object of some natural passion: Whereas a single act of justice, consider’d in itself, may often be cont- rary to the public good; and ‘tis only the concurrence of mankind, in a general scheme or system of action, which is advantageous. When I relieve persons in distress, my natural humanity is my motive; and so far as my succour extends, so far have I promoted the happiness of my fellow-creatures. But if we examine all the questions, that come before any tribunal of justice, we shall find, that, considering each case apart, it wou’d as often be an instance of humanity to decide contrary to the laws of justice as conformable them (Hume, 1978, p. 579). General rules of justice (artificial virtues) thus should not be examined sepa- rately. The important thing is “[t]he whole scheme … of law and justice is advanta- geous to the society; and it was with a view to this advantage, that men, by their voluntary conventions, established it” (Hume, 1978, p. 579). However, in large so- cieties free riders can elude their responsibilities ingeniously. They do not destroy the entire system. Free riders pursue their interests without abolishing the system of laws directly. Of course, if every citizen acts like that, the system collapses. In practice, governments seek to prevent free riders with penalties, but Hume does insan & toplum 20 not refer to legal or financial sanctions (Nuyen, 1986, p. 53). So, how will he deter free riders and make them respect the laws of justice? Since justice is an artficial virtue, there is not any natural motive that forces people to abide by the laws. So how will Hume bridge the gap morally? Why should free riders obey the rules of justice? Why should they leave this advantaged position? Unfortunately, Hume could not answer this questions. He just mentions benefits of justice, but he could not find a solid moral basis for just actions. Hume expresses that artificial virtues should be performed by all, but he could not explain how it is possible. In addition to that Hume speaks of law and justice together. He says that both are beneficial to the public. Since law and justice are compatible in Hume’s political thought, we can say that justice can be achieved and preserved by law. Then, the laws of justice are needed for ordering human conduct in the society. The Laws of Justice In Hume’s works, we encounter concepts such as “rules of justice” (Hume, 1978, p. 480), “laws of nature” (Hume, 1978, p. 520), “laws of society” (Hume, 1978, p. 491), “fundamental laws of nature” (Hume, 1978, p. 526), “fundamental rules of justice” (Hume, 1978, p. 567), “rules of justice and equity” (Hume, 1978, p. 505), “laws of equity and justice” (Hume, 1998, p. 28), “laws of justice” (Hume, 1978, p. 491), and “laws of justice and of property” (Hume, 1998, p. 23). In fact, these con- ceptualizations refer to same principles, which are as follows: 1. Stability of property; 2. Transfer of property by consent; 3. Fulfilment of promises (Hume, 1978, p. 526). Hume elucidates the first law of nature as follows: “man’s property is suppos’d to be fenc’d against every mortal, in every possible case” (Hume, 1978, p. 483). Hume sees the right to property as an absolute right. He subsequently draws a parallel between property and justice: After this convention, concerning abstinence from the possessions of others, is enter’d into, and every one has acquir’d a stability in his possessions, there immediately arise the ideas of justice and injustice; as also those of property, right, and obligation. The lat- ter are altogether unintelligible without first understanding the former. Our property is, nothing but those goods, whose constant possession is established by the laws of society; that is, by the laws of justice (Hume, 1978, pp. 490-491). Enes Eryılmaz, David Hume’s Account of Justice 21 Humean rules of justice are very much related with the rules of property. This is also apparent from his frequent use of these notions together. For instance, in the second Enquiry Hume says that “the ultimate point … is the interest and hap- piness of human society. Where this enters not into consideration, nothing can appear more whimsical, unnatural, and even superstitious, than all or most of the laws of justice and of property” (Hume, 1998, p. 23; emphasis added). In his Political Essays, Hume admits that “private justice, or the abstinence from the properties of others, is a most cardinal virtue” (“Of the Original Contract,” 1994, p. 197). In the second Enquiry, he uses justice and property interchangeably (Hume, 1998, p. 19). It is evident that Humean laws of justice are in line with the rules of property.22 As John Rawls observes, “Hume’s principles of justice are, in effect, largely principles for the regulation of economic production and competition between the members of civil society, as they pursue their economic interests” (Rawls, 2007, pp. 178- 179). Hence, Hume’s rules of justice are mostly principles of economic activities; because the rules of justice derive from the rules of property, and these rules seek to regulate economic transactions. For Hume, since all the three rules of justice is related to property and economics, the laws of justice are the laws of finance and commerce (Wennerlind, 2002). Self-love At first sight, self-interest seems to be in contrast with the laws of justice; however, for Hume, self-love is the original motive for the rules of justice. To underline this nuance, let us first consider rough and brutal self-interest. In the Treatise, Hume states that “self-love, when it acts at its liberty, instead of engaging us to honest 22 David Gauthier confirms this interpretation; he says that in Hume’s view “property is determined by a system of rules for the possession and use of objects, so that my property is what, in accordance with rules, I possess and use, and my exclusive property, what I alone possess and use. Justice, then, is the virtue determined by such a system, so that just behaviour consists in adherence to the rules governing the possession and use of objects” (Gauthier, 1979, pp. 4-5). Furthermore, Alasdair Mac- Intyre observes Humean conception of justice as rules of property as well: “[t]he problem of justice was according to Hume centrally a problem about the rules of property and their enforcement, and as I have already suggested, it was property conceived of in one highly particular way” (MacIntyre, 1988, p. 307). Similarly, Charles Cottle understands Hume’s notion of justice in accordance with the notion of prop- erty; “because Hume’s conception of property depends upon the laws which regulate it, one who wishes to hold, acquire, transfer, or even respect property must abide by such rules of justice. For Hume it is definitionally impossible to violate the rules of justice and still respect property rights. Semantically, the rules of justice and property are inseparable” (Cottle, 1979, p. 460). A. T. Nuyen thinks so as well: “Justice, for Hume, is observation of the rules designed to promote the stability of property.… Justice, for Hume, has to do only with material possessions.” (Nuyen, 1986, p. 43). insan & toplum 22 actions, is the source of all injustice and violence; nor can a man ever correct those vices, without correcting and restraining the natural movements of that appetite” (Hume, 1978, p. 480). Hence, self-interest should be controlled; otherwise it is im- possible to satisfy the desires of self-love. No one can be satisfied in his or her interests. At that point, persons should control their self-love just because of their self-interest.23 The obstacle of self-love is thus transformed to become the first or- igin of justice. Hume contends that “the mutual shocks, in society, and the oppo- sitions of interest and self-love have constrained mankind to establish the laws of justice, in order to preserve the advantages of mutual assistance and protection” (Hume, 1998, p. 67). Hence, for Hume, the motivation of the laws of justice comes from the domestication of self-love: We have already shewn, that men invented the three fundamental laws of nature, when they observed the necessity of society to their mutual subsistance, and found, that it was impossible to maintain any correspondence together, without some restraint on their natural appetites. The same self-love, therefore, which renders men so incommo- dious to each other, taking a new and more convenient direction, produces the rules of justice, and is the first motive of their observance (Hume, 1978, p. 543). Self-interest so tamed becomes the first origin of justice. For Hume, therefore, individuals obey the laws of justice. In other words, “artificially-redirected interest naturally obliges us and serves as the original motive to justice” (Taylor, 1998, p. 19) or “enlightened self-interest” (Krause, 2004, p. 639) motivates us to obey the laws of justice. It may be argued that Hume denies self-love as a foundation of morality. In- deed, Hume rejects selfishness as a basis in ethics, but he acknowledges the role of self-interest in politics. This distinction is observed by Jeffrey Church. He argues that “[a]lthough Hume began his moral philosophy with a critique of the selfish system, he returns to the selfish hypothesis in his political philosophy” (Church, 2007, p. 174). As I have noted above, this can be seen in Hume’s arguments on justice. In this question, Hume stands between Hutcheson and Mandeville. Hume is not in agreement with Hutcheson with respect to the self-interest: “[u]nlike his predecessor Hutcheson, who thoroughly repudiated the selfish system, Hume re- mained ambivalent about it, accepting its institutional solutions while rejecting its 23 A relation could be drawn between this remark of Hume and Game Theory. John Nash introduced this original approach to Game Theory. In zero sum games, one’s profit is others’ deficit, but in non-zero sum games all sides of the competition can win. Everyone can satisfy their interests. This can be also named as restriction of self-love in Hume. Nash formulates this idea in economic terms. See Nash, 1950. Enes Eryılmaz, David Hume’s Account of Justice 23 moral assumptions” (Church, 2007, p. 179). Hume “seems to accept Mandeville’s system in the end” (Church, 2007, p. 174), but only in the political realm. However, MacIntyre claims that grounding the rules of justice on self-love is unsatisfactory: “the kind of connection between the passions and adherence to a rule or princi- ple, which the Humean account requires, cannot be established by way of any con- ception of self-interest” (MacIntyre, 1988, p. 307). To Sharon Krause, Hume’s ap- proach to justice is related with interests; “defining justice as narrowly as he does, Hume means to force a change in our orientation to justice, to make us feel for justice from the standpoint of our interests rather than our ideals” (Krause, 2004, p. 639). Idealistic discourses thus leave their place to egoistic discourses in the the- ory of justice. However, Hume’s approach could not remedy the free rider problem. The free rider does not control and redirect her self-love. Hume suggests that she should restrict her self-love for the sake of self-love. This argument looks like a vicious circle. The cunning free rider satisfies her self-love anyway. Why would she limit her self-love? Hume needs another reason to curb self-love and to arrive at the rules of justice. Self-love is not a sure foundation in ethics as well as in politics. Self-love could not serve just and moral actions. The Origin of the State In his philosophical and political texts, Hume prefers the notion of government rather than state, but this does not mean that he refers to a different apparatus. In general, Hume implies state when he uses the term government. In fact, the term government was not employed as we understand and perceive it now. To- day, as a rule the government is responsible for executive and legislative powers. However, in Hume’s theory, the term government includes judicial power as well (Dees, 2008, p. 396). To be brief, in Hume, the term government has a larger sense than its contemporary meaning. Therefore, we can use government and state inter- changeably in our investigation of the rules of justice. An anarchist can ask why we need a state. Cannot we live without government? Hume would consider this question as important to some extent. Considering American clans, he argues that the state is superfluous in small societies (Hume, 1978, p. 540); but in a large and developed society an authority is necessary to guarantee the laws of justice. Hence, people “establish government, as a new in- vention to attain their ends, and preserve the old, or procure new advantages, by a more strict execution of justice” (Hume, 1978, p. 543). Thanks to the state, the public will obey the laws of justice. Thus, “the principal object of government is to insan & toplum 24 constrain men to observe the laws of nature” (Hume, 1978, p. 543). Therefore, gov- ernments, parliaments, soldiers, officers are all needed for the sake of justice. On Hume’s view, therefore mankind needs an institution like the state: MAN, born in a family, is compelled to maintain society, from necessity, from natural inclination, and from habit. The same creature, in his farther progress, is engaged to establish political society, in order to administer justice; without which there can be no peace among them, nor safety, nor mutual intercourse. We are, therefore, to look upon all the vast apparatus of our government, as having ultimately no other object or purpose but the distribution of justice, or, in other words, the support of the twelve judges. Kings and parliaments, fleets and armies, officers of the court and revenue, am- bassadors, ministers, and privy-counsellors, are all subordinate in their end to this part of administration (“Of the Origin of Government,” 1994, p. 20). The artificial virtue of justice thus stands above all these organizations and in- dividuals. Political society functions as a controller and guardian. States are means to the ends of a just society; they guarantee the adherence to the rules of justice. Since human nature is inclined to self-interest, the government hinders people crossing the line. In the Political Essays, Hume underlines the purpose of state: All men are sensible of the necessity of justice to maintain peace and order; and all men are sensible of the necessity of peace and order for the maintenance of society. Yet, notwithstanding this strong and obvious necessity, such is the frailty or perverseness of our nature! It is impossible to keep men, faithfully and unerringly, in the paths of justice (“Of the Origin of Government,” 1994, p. 20). In Hume’s political thought, therefore, it can be said that states are just “useful tools” (Dees, 2008, p. 404). Governments should support the laws of justice for the well-being of the society. Conclusion In this paper, Hume’s theory of justice is examined in terms of its foundations, circumstances, and characteristics. Hume analyses justice by referring to sympathy first; but in his later works he leaves sympathy for the sake of public utility. He con- siders sympathy as a weak foundation for the virtue of justice. Then he emphasizes public utility for the moral approbation of justice. For Hume, the sense of justice does not originate from reason. His understanding of justice is not idealistic, abso- lute, and abstract; it is empirical and down-to-earth because he is concerned with interests rather than transcendental ideas. However, in Hume’s view, justice is a Enes Eryılmaz, David Hume’s Account of Justice 25 moral issue in large and refined societies. Obeying the laws of justice is a moral duty; hence, moral persons act in accordance with the principle of public utility. On the one hand, Hume could not overcome the free rider problem. Neither sym- pathy nor public utility could not supply the required ground work for justice. Free riders and sensible knaves can benefit from exceptions without violating general rules. Hume could not offer a remedy for free riders. Although Hume is a realist in politics, he seems like a Pollyanna in ethics. Hume’s account of justice could not provide a solution to the free rider problem that any theory of justice must deal with. On the other hand, Hume argues that justice is an artificial virtue and at the same time he contends that it is a moral duty and derives from a sense of obligation. But since justice does not involve a natural motive in human nature, a sense of obligation could not lead to justice. Although Hume adopts an empirical and anti-rationalist methodology, he appeals to rationalist solutions as well (Slote & LeBar, 2016). At the end of the day, Hume’s account of justice contains a set of gaps and contradictions. Therefore, he could not develop a complete well-grounded theory of justice (Reidy, 1993). For Hume, the virtue of justice becomes redundant in some situations, such as in states of perfect abundance, scarcity, war, and emergency. Similarly, when one is faced with perfectly generous, or extremely cruel and voracious persons, or when one is dealing with a class of rational creatures with mental and corporal disabili- ties, or with animals, or in the punishment of unlawful people, the virtue of justice would be pointless. In all other cases, the artificial virtue of justice plays an import- ant role. Circumstances and dispositions of men are thus highly important in the requirements of justice. This observation points to another resemblance between his theory of morality and justice, and helps us to see his experimental method of reasoning. As it is shown, Hume‘s empirical methodology is clear in his arguments concerning the circumstances of justice; but in the foundation of justice he implies rationalist concepts. To Hume, justice is an artificial virtue, it does not stem from nature, and it has not got a natural motive in human nature. The chief drive that causes individuals to act justly is disciplined self-interest. Self-love should be organized for needs of the public. Laws of justice are created by people thanks to the conventions. Civil society requires the rules of justice to institute and maintain order. With the rules of justice, the security and stability of the community is guaranteed. Unlike benef- icence or charity, justice necessitates participation of all people. The laws of justice should be followed by everybody; this is how a just society becomes possible. In insan & toplum 26 this way, well-being and maintenance of the society might be possible. If the virtue of justice is undermined, civil society collapses. Justice is a sine qua non for the hu- manity. Otherwise, brutality and anarchy overwhelm mankind. The laws of justice are mainly related to economic justice. In Hume’s political theory, the concept of justice chiefly concerns principles of economic activities; because he views the rules of justice from the lens of property. The laws of justice are: stability of property, exchange of property by consent, and performance of promises. The laws of justice are directly associated with the laws of property and exchange. Hume identifies the concept of justice with the rise of the first rule, i.e. stability of property. The other rules of justice too are concerned with property, trade, and contracts. Hume’s laws of justice are thus all about economics. References Agamben, G. (2005). State of exception (K. Attell, Trans.). Chicago: University of Chicago Press. Aristotle. (2011). Aristotle’s nicomachean ethics (R. C. Bartlett & S. D. Collins, Trans.). Chicago and London: The University of Chicago Press. Church, J. (2007). Selfish and moral politics: David Hume on stability and cohesion in the modern state. The Journal of Politics, 69(1), 169-181. Cohon, R. (2010). Hume’s moral philosophy. (Fall Edition). In E. N. Zalta (Ed.), The stanford encyclopedia of philosophy. Retrieved from https://plato.stanford.edu/archives/fall2010/entries/hume-moral/ Cottle, C. E. (1979). Justice as artificial virtue in Hume’s treatise. Journal of the History of Ideas, 40, 457-466. Dees, R. H. (2008). “One of the finest and most subtile inventions”: Hume on government. In E. S. Radcliffe (Ed.), A companion to Hume (pp. 388-405). Oxford: Blackwell Publishing. Deleuze, G. (1991). Empiricism and subjectivity: An essay on Hume’s theory of human nature (C. V. Boundas, Trans.). New York: Columbia University Press. Eryılmaz, E. (2011). Politics, law, and morality: David Hume on justice. Unpublished master’s thesis, Middle East Tech- nical University, Ankara. Gauthier, D. (1979). David Hume, contractarian. The Philosophical Review, 88(1), 3-38. Golding, W. (1962). Lord of the flies. London: Faber & Faber. Haakonssen, K. (1993). The structure of Hume’s political theory. In D. F. Norton (Ed.), The Cambridge companion to Hume (pp. 182-201). Cambridge : Cambridge University Press. Hardin, R. (2007). David Hume: Moral and political theorist. Oxford: Oxford University Press. Hardin, R. (2013) The free rider problem. In E. N. Zalta (Ed.), The Stanford encyclopedia of philosophy (Spring 2013 Ed.). Retrieved from https://plato.stanford.edu/archives/spr2013/entries/free-rider/ Hobbes, T. (1994). Leviathan. E. Curley (Ed.). Indianapolis: Hackett Publishing Company. Hume, D. (1978). A treatise of Human nature. Oxford: Oxford University Press. Hume, D. (1994). Political essays. Cambridge: Cambridge University Press. Hume, D. (1998). An enquiry concerning the principles of morals. Oxford: Oxford University Press. Krause, S. R. (2004). Hume and the (false) Luster of justice. Political Theory, 32(5), 628-655. Enes Eryılmaz, David Hume’s Account of Justice 27 Küng, H. (1998). A global ethic for global politics and economics. Oxford: Oxford University Press. Lecaldano, E. (2008). Hume’s theory of justice, or artificial virtue. In E. S. Radcliffe (Ed.), A companion to Hume (pp. 257-272). Oxford: Blackwell Publishing. MacIntyre, A. (1959). Hume on “Is” and “Ought”. The Philosophical Review, 68(4), 451-468. MacIntyre, A. (1984). After virtue: A study in moral theory. Notre Dame: University of Notre Dame Press. MacIntyre, A. (1988). Whose justice? Which rationality? Notre Dame: University of Notre Dame Press. Macnabb, D. G. (1991). David Hume: His theory of knowledge and morality. Aldershot, England: Gregg Revivals. Miller, D. (1976). Social justice. Oxford: Clarendon Press. Morwood, J. (1998). A dictionary of Latin words and phrases. Oxford: Oxford University Press. Nash, J. F. (1950). The bargaining problem. Econometrica, 18(2), 155-162. Nuyen, A. T. (1986). Hume’s justice as a collective good. Hume Studies, 12(1), 39-56. Rawls, J. (1999). A theory of justice (Rev. ed.). Cambridge, Mass.: Harvard University Press. Rawls, J. (2007). Lectures on the history of political philosophy. S. Freeman (Ed.). Cambridge, Mass.: Harvard University Press. Reidy, D. A. (1993). Does Hume have a theory of justice? Auslegung: A Journal of Philosophy, 19(1), 63-74. Selby-Bigge, L. A. (1975). Editor’s introduction. In D. Hume (Ed.), Enquiries concerning human understanding and concerning the principles of morals (p. xxi). Oxford: Clarendon Press. Slote, M., & LeBar, M. (2016). Justice as a virtue. In E. N. Zalta (Ed.), The Stanford encyclopedia of philosophy (Spring 2016 Ed.). Retrieved from https://plato.stanford.edu/entries/justice-virtue/ Taylor, J. (1998). Justice and the foundations of social morality in Hume’s treatise. Hume Studies, 24(1), 5-30. Wennerlind, C. (2002). David Hume’s political philosophy: A theory of commercial modernization. Hume Studies, 28(2), 247-270. Yellin, M. E. (2000). Indirect utility, justice, and equality in the political thought of David Hume. Critical Review, 14(4), 375-389. 
work_bbmjruecbrcfnfpc3v5ypzxsti	----	Microsoft Word - Gilabert--Justice and Beneficence (CRISPP).doc   1   “Justice and Beneficence” [Penultimate version; forthcoming in a special issue of Critical Review of International Social and Political Philosophy] Pablo Gilabert Philosophy Department, Concordia University, Montreal, Canada What is a duty of justice? And how is it different from a duty of beneficence? We need a clear account of the contrast. Unfortunately, there is no consensus in the philosophical literature as to how to characterize it. Different articulations of it have been provided, but it is hard to identify a common core that is invariant across them. In this paper, I propose an account of how to understand duties of justice, explain how it contrasts with several proposals as to how to distinguish justice and beneficence, respond to some objections and suggest further elaborations of it. The conceptual exploration pursued in this paper has practical stakes. A central aim is to propose and defend a capacious concept of justice that makes a direct discussion of important demands of justice (domestic and global) possible. Duties of justice can be positive besides negative, they can be imperfect as well as perfect, they can range over personal besides institutional contexts, they can include multiple associative reasons such us non-domination, non- exploitation and reciprocity, and they can even go beyond existing national, political, and economic associative frameworks to embrace strictly universal humanist concerns. We should reject ideological abridgments of the concept of justice that render these possibilities, and the important human interests and claims they may foster, invisible. 1. Introduction It is common to assume that there is an important distinction between justice and beneficence (or charity, humanitarianism—I treat them as equivalent here). This distinction between duties to others seems important, for example, when we think about our distributive responsibilities. Some believe that certain duties to help the needy or the relatively poor are duties of justice, whereas others claim that they are only duties of beneficence. Some believe that some of those duties are duties of justice in domestic, but not in global contexts. But what is a duty of justice? And how is it different from a duty of beneficence? We need a clear account of the contrast. Unfortunately, there is no consensus in the philosophical literature as to how to characterize it. Different articulations of it have been provided, but it is hard to identify a common core that is invariant across them. In this paper, I propose an account of how to understand duties of justice (section 2), explain how it contrasts with several proposals as to how to distinguish justice and beneficence   2   (section 3), and respond to some objections and suggest further elaborations of it (section 4). My focus will largely be on distributive justice (i.e. on the just apportioning of access to material goods and conditions affecting subsistence or well-being, including for example housing, health care, education, alimentation, opportunities for productive and meaningful work, income and wealth, instruments of production, and natural resources). The conceptual exploration pursued in this paper has practical stakes. A central aim is to propose and defend a capacious concept of justice that makes a direct discussion of important demands of justice (domestic and global) possible. Duties of justice can be positive besides negative, they can be imperfect as well as perfect, they can range over personal besides institutional contexts, they can include multiple associative reasons such as non-domination, non- exploitation and reciprocity, and they can even go beyond existing national, political, and economic associative frameworks to embrace strictly universal humanist concerns. We should reject ideological abridgments of the concept of justice that render these possibilities, and the important human interests and claims they may foster, invisible. 2. A proposal for how to understand duties of justice Let me start by presenting my view about how to understand duties of justice. I suggest that we conceive of them as follows: Duties of justice are duties to preserve or promote people’s access to important conditions or goods to which they are entitled and whose fulfillment is prima facie enforceable. This enforcement is all things considered justifiable if it is necessary for or strongly contributes to securing the required preservation or promotion and can be feasibly introduced without imposing unreasonable costs.   3   There are different ways to develop this concept into a more specific conception of justice.1 That development would involve providing substantive accounts answering questions such as the following: What conditions or goods are important enough to give rise to rights and duties of justice?2 What duties of preservation or promotion are reasonable to accept? What makes a proposed form of enforcement necessary for or strongly contributory to the fulfillment of a right? What considerations bear on the appraisal of the feasibility and reasonable costs of the enforcement of a duty? What areas of social life are amenable to demands of justice (i.e. what is justice’s site)? What are the criteria for identifying duty-bearers and right-holders (i.e. what is justice’s scope)? Different conceptions of justice can differ in their answers to these questions while sharing the concept as characterized above. They can agree on the role of justice in identifying prima facie enforceable duties to secure people’s rights even if they disagree about what makes duties fit for that role. I will explain these points further in section 3. But before proceeding let me say something about the status of my discussion. The account of the concept of duties of justice just provided is neither a stipulation nor an elucidation, but something in between these that we can call a deliberative interpretive proposal. A deliberative interpretive proposal shares with elucidation the interpretive interest in relating the account of a concept to the practices in which that concept may be used. But it differs from elucidation (and gets closer to stipulation) in that its core aim is deliberative rather than descriptive: it does not merely report what some agents in fact think, but makes a suggestion as to what they are to think. The aim is to propose an understanding of justice that relates to certain practices in which elements of the concept may be already in use, or where the concept may be relevant, while offering an articulation of the concept that may improve on the current concept or its understanding and thus help ameliorate the practice itself.   4   In proposing and defending the deliberative interpretive proposal mentioned, it is helpful to proceed by considering some reasonable desiderata, or adequacy conditions, for an account of duties of justice. What do we want to achieve by identifying some duties as duties of justice? What theoretical and practical work would a distinction between such duties and duties of beneficence do for us? The following are some of the desiderata I think worth recognizing (I do not claim that this list is exhaustive): (a) Capturing the stringency of justice. Justice involves demands that are very strong and that normally override competing considerations. An account of justice should pick out this feature. (b) Enabling rather than suppressing substantive debates. We should not propose an understanding of the concept of justice that is so narrow that it renders important substantive debates about duties of justice irrelevant. We want to engage intelligently in those debates and to reach a considered view about what position to support. Eliminating options by definitional fiat impoverishes our practical reasoning. (c) Determinateness. Our understanding of justice should be tolerably determinate. Ideally, we should identify necessary and sufficient conditions for the application of the concept of justice. Failing that, we should at least identify typical features holding for an important range of cases.3 (d) Capturing the critical role of justice. Conceptions of justice have a practical role in criticizing social practices and institutions. We should be suspicious of accounts of justice that do not help us make sense of challenges to the status quo. (e) Illuminating practices. Our account of the concept of justice should help us clarify the stakes of important practical questions.   5   3. How the proposed account relates to several proposals as to how to distinguish justice from beneficence The following are the main contrasts that have been proposed to identify the specificity of duties of justice: I. Due. Duties of justice, unlike duties of beneficence, are concerned with giving people their due. II. Negative / Positive. Duties of justice are negative, whereas duties of beneficence are positive (the former demand that we avoid depriving others of access to certain important conditions or goods, while the latter demand that we provide them with such an access or protect them when they already have it). III. Perfect / Imperfect. Duties of justice are perfect, whereas duties of beneficence are imperfect (the former are, and the latter are not, such that it is always clear who owes what to whom in what circumstances). IV. Enforceability. Duties of justice are justifiably enforceable, whereas duties of beneficence are not. V. Rights. Duties of justice have correlative rights, whereas duties of beneficence do not. VI. Institutional / Personal. Duties of justice are institutional, whereas duties of beneficence are interpersonal. VII. Associative / Non-associative. Duties of justice are always associative (they hold only amongst those who share a certain associative framework—such as a system of economic cooperation, a state, etc.), whereas duties of beneficence (sometimes) are not.4 The understanding of justice I proposed in section 2 combines some elements of contrasts I, IV, and V (although, as it will become clear, it does not collapse into any of them). On this understanding, duties of justice range over what is due to people. Just distribution is a response to   6   people’s rights to what is distributed. And distribution warrants enforcement. Such enforcement is seen as only prima facie warranted, however. Enforcement imposes constraints on the freedom of agents and involves burdens for them, and such costs must themselves be justifiable as feasible and reasonable. Hence, a duty could be a duty of justice even if a specific implementation of it is not justifiably enforceable, all things considered, in certain circumstances (either because in the circumstances such an enforcement is not feasible or because it imposes costs that are unreasonable given other, stronger, conflicting demands of justice). But since a pro tanto ground for action persists, agents may have to find alternative (feasible, reasonable) ways to honor it, or change the circumstances so that some form of honoring the ground becomes practicable. Consider, for example, the duty to help eradicate severe poverty. Access to basic nutrition, housing, education, and medical care constitute urgent interests that give rise to rights. The fulfillment of the correlative negative duty not to deprive others of access to basic necessities is clearly worthy of enforcement. So arguably is a positive duty to help others gain and maintain such an access. Now, the latter duty is clearly feasible at reasonable cost in most contemporary societies. It could be argued that this is not the case in extremely poor societies where corruption and lack of economic dynamism are rampant. If this is true, agents in poor societies still have a duty to improve their political institutions and bolster their economic development so that more poverty can be eliminated. And the members of wealthier societies have duties to facilitate, and of course also not to block, such improvement. They may have to stop using international institutions (such as the International Monetary Fund or the World Trade Organization) as tools for dominating and exploiting poorer societies, and help turn them into tools for expanding the opportunities of the poor to escape penury. I will defend the proposed view of duties of justice by explaining how it relates to the seven contrasts mentioned. In doing this, I will draw on the five desiderata listed in section 2. I will   7   argue that my proposed account satisfies the desiderata, that it does not neatly coincide with any of the traditional contrasts, and that none of the contrasts fulfills all the desiderata. The text in this section partly draws on, but systematically revises and expands, the discussion on the contrast between justice and humanitarianism presented in section 1.6 of my book From Global Poverty to Global Equality.5 (i) Capturing the stringency of justice A common intuition is that duties of justice are particularly stringent moral demands. Many agree with the view that, as Adam Swift puts it, “[p]olitical philosophy … is a very specific subset of moral philosophy, and one where the stakes are particularly high. It’s not just about what people ought to do, it’s about what people are morally permitted, and sometimes morally required, to make each other do”.6 The account I suggested captures this by saying that duties of justice are prima facie enforceable. However, it might be objected that my account does not fully capture the stringency of justice because it qualifies enforceability by reference to “reasonable costs” to duty bearers. This might seem to render duties of justice less stringent than their contrast with beneficence intuitively involves. On a construal of contrast IV (Enforceability), we would be problematically blurring the distinction between justice and beneficence if we allow duties of justice to turn out to be not enforceable given computation of costs. It would be better to deem such duties demands of beneficence, which are typically less stringent, and not necessarily enforceable. To illustrate this objection, consider two scenarios. Both include duties whose fulfillment involves severe costs to the duty-bearer (such as their inability to pay for housing). The content of the duties in the two cases differs as follows. In the first, Federico pays back a loan to his creditor. In the second, Gillian helps several destitute people by giving them a considerable amount of money. According to the objection I am considering, it seems intuitively correct to   8   subject the second duty, but not the first, to a “reasonable costs” qualification, and this difference is one of the things we want to mark by calling the first a duty of justice and the second a duty of beneficence. The duty of beneficence to help the needy can be limited if its fulfillment involves the severe impoverishment of the duty-bearer, but this caveat does not apply to the duty of justice to pay back a loan. The objection that taking demands of justice to be sensitive to costs would deprive them of their characteristic stringency (as opposed to the lesser stringency of beneficence) is mistaken. First, it seems reasonable that demands of justice be sensitive to costs. This is because justice should attend to the claims of everyone, including duty-bearers besides right-holders.7 Thus, we can reasonably reject the judgment that Federico should sell his home and liquidate all his assets and run to risk it all in a casino tonight even if doing this offers the only opportunity for him to raise enough money to make the payments that are due tomorrow. There may be extenuating circumstances such that someone’s debt payments may be justifiably lowered, or delayed, or cancelled. For example, they may cater for a sufficientarian norm of justice that no one should fall into destitution. Second, even if Gillian is permitted to refrain from giving so much money, she may still have some stringent and demanding duties toward the destitute. Consider the view that it is not wrong to tax people like Gillian to help the destitute. We think that the level of taxation should be determined not only by considering the potential beneficiaries of policies funded by taxation, but also by attending to the situation of those who would be taxed. This point, like the previous one, suggests that duties of justice and sensitivity to costs can legitimately be coupled. Third, we can see some duties of justice as weightier than other duties without having to say that the latter are not duties of justice. There can be demands that outweigh, or even constrain, others, while being all demands of justice. It is of course often difficult to determine the precise   9   relations among different demands of justice, but we can recognize the general point that a plurality of them warranting prima facie enforcement exists. We can then envisage appropriate articulations in particular exercises. A clear and familiar example is Rawls’s “lexical ordering” of his two principles of justice. The first principle protecting equal civil and political liberties constrains the second principle promoting economic justice, and the part of the second principle concerning fair equality of opportunity constrains the other part (the “Difference Principle”) demanding the maximization of income for the worst-off.8 There is a common view according to which duties of justice normally have logical priority over duties of beneficence because the former, unlike the latter, are constitutive of an account of what is rightfully owned.9 Beneficence focuses on what people should do with what is theirs, assuming an account of what belongs to whom. Now, the account proposed here agrees with this view. Some positive duties to help others can be the counterpart of their positive entitlements. We can then justify the claim that rich people like Warren Buffett should be taxed to fund public education for children from destitute families by saying that the destitute children are entitled to the part of the rich’s pre-tax income that could be used to support them. (ii) Enabling rather than suppressing substantive debates A common temptation that should be resisted is to define disputed terms in ways that make some substantive claims couched in such terms impossible. This maneuver or shortcut does not solve substantive problems. The positions rendered definitionally impossible will simply reassert themselves through challenges to the definitions proposed, or by disputing the weight in our overall reasoning of the claims using the terms as defined. Consider contrast II (Negative / Positive). On this contrast, no thing is a duty of justice unless it is a negative duty or a derivative of it. Thus, there is a negative duty of justice not to deprive others of the means of survival. There is no positive duty of justice to provide them with such   10   means (unless such provision is a form of compensation for previous deprivations, or the counterpart of a promise or a contract whose violation would flout a negative duty). Now, this view of justice as based on negative duties should be seen as a substantive conception of justice, not as a claim about the concept of justice. If the latter were asserted, this would beg the question against those who say that people like Warren Buffett have positive duties of justice to contribute to the subsistence of the destitute. If those who think that there are underived positive duties of justice were told that they are thinking about duties of beneficence rather than justice, they will contest the definition of the former as unduly narrow. Alternatively, they will say that duties of justice do not have the primacy often claimed for them (so that an alleged negative duty of justice not to tax Warren Buffett to help the destitute would be outweighed by a positive duty of beneficence to make him help them, even if this involves taxing Buffett). Hence it is better to keep the definition of justice broad enough to make room for substantive debate. Thus, a libertarian view of all fundamental duties of justice as negative should be seen as a substantive theory of justice, not simply as a definition of the concept of justice.10 A defense of it through a definitional maneuver would be a Pyrrhic victory. Does what I have just said warrant the rejection of contrast II? A defender of this contrast could reply that we should accept it because of its fit with the first desideratum concerning the stringency of justice. This is because a negative duty regarding a certain object is normally weightier than a positive duty regarding the same object. Stealing food from the hungry is worse than refraining from giving them food. But this rebuttal is unsatisfactory. First, it does not ground a general claim of supremacy of negative over positive duties (which seems necessary for contrast II to hold). A negative duty regarding a certain object may have less moral weight than another positive duty regarding another object when the two conflict in practice. My duty not to deprive you of access to an object you own without your consent may have less weight than my   11   duty to save someone’s life. This is so, for example, when I can only take a mortally wounded person to the hospital by taking your car. Second, some negative duties may be weightier than positive duties with the same object without this entailing that the former are, and the latter are not, duties of justice. Even if they have unequal weight, both duties may be sufficiently weighty to be duties of justice. Thus, the duty to help secure educational opportunities for destitute children may have less weight than the duty to refrain from prohibiting destitute children from attending school, but it may be weighty enough to justify taxing Warren Buffett to fund its implementation. The account I have proposed is broad enough to enable the substantive discussion that contrast II represses. Similar considerations apply regarding contrasts IV and VI. Consider contrast IV (Enforceability). The problem with this contrast is that justifiable enforceability is neither sufficient nor necessary for something to be a duty of justice. Some contributions could be justifiably enforced without being duties of justice. For example, Allen Buchanan has argued that some forms of enforcement can be seen as securing the provision of certain collective goods that do not respond to correlative rights. Buchanan’s discussion of this thesis may be problematic, as the collective goods he mentions—clean air, energy conservation, national defense—may in fact be the objects of rights.11 But we can imagine cases in which rights are not involved. An example might be the promotion of certain cultural practices of the kind Rawls discusses when he identifies the tasks of a hypothetical “exchange branch” of the state in a well-ordered society.12 An instance of this is public funding for opera houses. Another example might be some forms of renewed assistance to people who repeatedly and blamably squander the resources they receive.13 Justifiable coercion is also not a necessary condition for justice. Sometimes coercive enforcement of certain demands may be all things considered unreasonable. An example of debate over this issue concerns the introduction of “speech codes” that impose penalties on agents performing   12   speech acts that carry clearly racist or sexist content. Some argue that although people have a duty of justice not to speak to others in racist or sexist ways, it would be overall a bad idea to have the state patrol linguistic practice. This position might be mistaken, but it is not conceptually incoherent. What explains the wide support for contrast IV? It seems to me that at least part of this support depends on the important intuition that demands of justice are strong enough for their enforcement to warrant serious consideration because of the involvement of rights claims. The reference to rights establishes a strong, stringent ground for proposals of enforcement that is lacking in cases of beneficence. But my proposed account captures this point while avoiding the pitfalls of IV by seeing enforceability as being only prima facie and conditional upon considerations of feasibility and reasonable costs. Proposals of enforcement can be rejected when they involve unreasonable costs, or when they would not really help fulfill a relevant duty. The point just made also affects some versions of contrast VI (Institutional / Personal) that see justice as only ranging over coercive institutions. As G. A. Cohen has argued, some duties of justice that constitute the ethos or moral culture of a just society may inform choices by individuals that are beyond the purview of coercive legal structures.14 A society without a racist culture would in one respect be more just than a society with a racist culture even if the coercive institutions of both societies were the same. An institutionalist about justice could reply that the importance of an ethos for justice can be accounted for while insisting that only institutions populate the primary focus of demands of justice. This is because institutions have significant cultural effects and can thus help shape a society’s ethos.15 This true and important point is not however sufficient to justify an exclusive primary focus on institutions. One reason for this is that the relation between a society’s institutions and its culture is one of reciprocal rather than unidirectional influence. A certain   13   cultural environment may be necessary for certain institutions to arise in the first place. This point is crucial when we address the (relatively underexplored) issue of the accessibility of just institutions besides the (often explored) issue of their stability. The latter can to a large extent be accounted for by considering how just institutions shape political culture by socializing people in certain ways. But the former cannot readily be accounted for in this way. An important part of the struggle for justice in unjust societies is the generation of a sufficiently strong political will supporting reform, and this often involves an ideological battle in civil society through which political actors succeed in shaping practical attitudes of large sectors of society before new, just institutions formalizing the spirit of those attitudes are introduced. A striking example of this is the long cultural struggle by feminists before legal frameworks implementing nondiscrimination were established.16 Furthermore, it is worth noting that some demands of justice are directly rather than indirectly focused on people’s informal attitudes and choices in their interactions with each other. Daily, informal interactions in which persons address each other with respect are part of what a just society consists in. Even if institutions were enough to shape such attitudes (something I find unlikely to be true17), their role would be partly instrumental, and thus not wholly constitutive of the primary focus of justice, as holders of contrast VI seem to assume. (iii) Determinateness We want a concept of justice that is tolerably determinate. A difficulty with contrast I (Due) in this respect is that it does not fully capture the fact that duties of justice are different from other moral demands. The characterization of justice as giving people their due is too broad. On this account, most moral duties could be seen as a duty of justice, as most actions that are moral duties (rather than, say, something that would be praiseworthy but not wrong not to do), could be construed as delivering what is due, or owed, to someone. Consider the duties to fulfill the following promises: to call you on Wednesday to go to the cinema and to pay back the money   14   you loaned me at the agreed upon time. Both duties involve my giving you what is due to you. But the first, unlike the second, does not strike us as a good candidate for a duty of justice. As I said in section 2, my proposal partly absorbs contrast V (Rights) because it sees duties of justice as responding to correlative rights. However, my proposal does not simply collapse into this contrast. One reason is that, as we saw, it also refers to prima facie enforceability. Doing this makes the concept of justice more determinate. Not every right warrants demands of justice. Some moral rights (such as your right that your friend show up at the cinema at the agreed upon time) may not be even prima facie justifiably enforceable. On the other hand, we should not be too strict about determinateness because this may lead to overlooking important moral issues. Consider for example a version of contrast III (and a view of contrast V that is tied to it), according to which someone’s right to an object is only linked to duties of justice on the part of someone else if those duties are perfect (if they are duties to do certain clearly specified things to preserve or promote access to that object by the right-holder). This seems to me to be an unduly narrow account of rights that impoverishes our thinking about them. It overlooks the possibility that we can identify rights with different levels of precision, so that some rights may correlate to both perfect and imperfect duties.18 Take for example a right to health care. Governments have perfect duties not to arbitrarily deprive any resident of access to existing public heath care programs. They may not, for example, discriminate on the basis of political opinion, race, ethnicity, or gender. But surely governments also have a duty to create some needed health care programs that do not yet exist. This duty is imperfect because it is indeterminate as to what programs of the many that are possible should be chosen (when not all can be feasibly and readily introduced at reasonable cost). It can be made more determinate at the level of policy. But its more general and imperfect (and thus somewhat indeterminate) form is itself significant. It is one of the reasonable counterparts of a constitution that includes social   15   rights, and citizens and courts could press governments to acknowledge it and take steps to fulfill it in some of the many ways possible.19 Thus, the distinction between perfect and imperfect duties does not provide a model for the distinction between justice and beneficence. As we saw, there can be duties of justice that are imperfect. As an additional and important example, consider the duty to contribute to institutional change in an unjust society. This is one of the “natural duties of justice” for individuals mentioned by Rawls in A Theory of Justice.20 It is clearly imperfect because it does not by itself specify what, and how much, any person should do to fight injustice.21 Furthermore, there may be duties of beneficence that are perfect. An example could be a duty to help certain people escape circumstances of severe deprivation when they can only do so with our help, they are the only ones who need our help, we can help at reasonable cost, and the deprivation they face is the result of their repeatedly squandering resources previously received (perhaps in fulfillment of duties of sufficientarian or egalitarian justice). (iv) Capturing the critical role of justice A fourth desideratum in accounting for duties of justice is that we avoid automatic deference to the status quo. A critical and dynamic attitude toward our current circumstances is among the crucial things we expect the standpoint of justice to help us achieve. An important case in this respect is the ability to support dynamic duties to expand current feasible sets of political action so that certain just distributions that are infeasible (or have very low feasibility) in the present become feasible (or more feasible) in the future.22 This helps notice a further problem with contrast III (Perfect / Imperfect). For example, it would be a mistake to say that there is not a duty of justice to help eradicate global poverty because it is currently unclear who should do what for whom, or because we currently do not have international institutions scheduling and enforcing specific forms of contribution securing the eradication of poverty for all. Currently imperfect   16   duties can, and often should, be made perfect through the generation of new forms of collective action and institutional structures articulating specific provisions.23 It is not unreasonable to see the introduction of such articulation as a demand of justice. But its ground may be the importance of the pre-existing imperfect duty of justice to eradicate poverty that such articulation would help specify and implement. It would have been a worrisome capitulation to the status quo to deny the existence of these demands before the construction of welfare states in domestic contexts. A similar mistake at the global level could and arguably should be avoided. The identification of perfect duties and the existence of institutional mechanisms are extremely important. They can foster efficiency by coordinating the action of many agents, they can help identify a fair allocation of responsibilities given agents’ diverse needs, abilities, and associative relations, and they can cement motivation to comply for those who are not sufficiently morally motivated and for those who need assurance that others will also do their share. Thus, we do need to focus extensively on institutional structures when we develop a conception of justice. (Of course, their coercive nature besides their far-reaching influence also makes their justifiability an important concern.24) But this does not entail that there could be no duties of justice that are not already institutionally specified. This point obviously affects some versions of contrast VI (Institutional / Personal) in addition to contrast III (Perfect / Imperfect). We have already identified several reasons for rejecting the reduction of duties of justice to institutionally articulated duties. Another reason that relates to the desiderata of avoiding question-begging views and the critical role of justice is the following. It is not a conceptual impossibility to think of a just society that has no robust, or coercive, institutional structure. An example might be an anarchist society securing liberty and equality for all through arrangements that are thoroughly voluntary.25 Although such a society is hardly achievable, its characterization as just is not a conceptual mistake. Furthermore, a picture of it may work as an ideal with the   17   help of which other, more feasible social structures can be evaluated and compared. Some may turn out to be preferable if they approximate the ideal more closely than others. (v) Illuminating practices A further desideratum for an understanding of justice is that it should help us make sense of problems in current political practices. For example, an understanding of distributive justice as ranging over enforceable rights is in tune with the modern emergence of the view that duties to eradicate severe poverty and reduce inequality are among the key responsibilities of states.26 This desideratum should also apply to the current debate on global justice, in which we can identify two important shifts. They involve the emergence of discussions over whether responsibilities of justice can rely on associative relations different from co-membership of a state and on humanist claims concerning important interests of human beings regardless of associative ties. Both shifts involve a departure from a narrow construal of justice which, as a variant of contrast VI (Institutional / Personal), holds that two persons can have duties of distributive justice toward each other only if they are both subject to state institutions that act coercively and in their name.27 The first shift involves the view that two persons may share duties of distributive justice if they are intertwined in associative frameworks that are less comprehensive than a state but are still morally consequential.28 A typical example concerns relations of deep economic interdependence. Their existence may give rise to duties to avoid exploitation of members of poorer societies (for example through unfair bargaining mechanisms in international institutions such as the World Trade Organization, or through humiliating labor conditions in sweatshops run by multinational corporations in relatively poor countries). The previous shift is compatible with contrast VII (Associative / Non-associative), but demands a wider view of the kinds of associative facts that give rise to concerns of distributive justice. The second shift is more radical, and challenges it. According to this contrast distributive   18   justice is confined to duties arising among co-members of already existing associations (economic, political, national, etc.). On this contrast, a humanist view of justice according to which some duties of justice correlate to rights that protect interests that human beings as such have is a category mistake. But such a humanist view is an important strand in the contemporary theory and practice of global justice. Universal sufficientarian claims against severe poverty are a central part of human rights discourse. And some philosophers are starting to argue that some egalitarian demands regarding some goods (such as health care, education, and work opportunities) can also take non-associativist forms. If we recognize that all human persons are ultimate units of equal moral concern and respect for everyone, then we might entertain the thought that we have duties to help others access important advantages even if due to the natural lottery they were born outside of our associative networks.29 This view has practical significance for debates about the strength and content of global duties of aid, and about the extent to which borders should be open to immigrants. The desideratum of illuminating current political practice would be flouted if we work with a concept of justice that does not help us grasp these shifts as expressing valid moves in the debate about what justice demands. The desiderata concerning the critical and dynamic role of considerations of justice and concerning the need to avoid begging important substantive questions should also make us suspicious of an understanding of justice based on contrast VII. Eliminating humanist conceptions through a definitional maneuver would be philosophically unsatisfactory. It would also uncritically defer to the status quo, which includes on the part of many the belief that they do not have duties of justice tracking rights of human beings who are not already co-members in some parochial association. To reach a considered view about what is the just way to approach the ongoing process of globalization, we need to be able to raise and   19   assess diverse associativist and humanist proposals. And to enable that discussion, we need a capacious concept of justice like the one I proposed. 4. Objections and elaborations I conclude by considering some possible objections to, and elaborations of, the account of duties of justice presented above. (1) A first worry is that the reference to “important conditions or goods” in the characterization of duties and rights of justice may not be necessary. Imagine a contract between Juan and Peter in which Peter commits to giving Juan a massage for a fee. Juan is entitled to Peter’s massage, and perhaps Peter can be said to have a duty of justice to honor the contract. But the good involved is not important. In response, we can make two points. First, we can consider specific rights and duties as cases of wider principles. In the example discussed, we can consider the importance of making and honoring contracts. Having access to successful practices of this kind is clearly an important good. Alternatively, it could be that some instances of a practice are relatively unimportant (as in the example above) while others are quite important (as in, say, transfers of real estate or full- time job contracts). We can then simply distinguish subsets of contract rights and duties, and say that only those ranging over sufficiently important goods give rise to rights and duties of justice. (The standard of “sufficient importance”, of course, is a matter of substantive conception, not of concept.) (2) Another worry targets the component of “prima facie enforceability” in the account of duties of justice proposed. The general difficulty concerns the explanatory significance of this component when contrasted with the other component referring to rights. It seems that in the order of explanation, something is a duty of justice because it protects or promotes the fulfillment   20   of an important right, and a duty is enforceable because it is a duty of justice. It does not seem true to say that something is a duty of justice because it is (inter alia) enforceable. In response, I agree that referring to rights is explanatorily more important than referring to prima facie enforceability (this is why I said, in section 2, that enforcement is justifiable when— inter alia—it is necessary or strongly contributory to the fulfillment of rights). But I think that both are explanatory significant. Prima facie enforceability is a dependent, but relevant component. This is because intuitively duties of justice involve, prima facie, justifiable limitations on people’s liberty to act. What the worry just mentioned forces me to acknowledge is that there is an explanatory structure within the account of justice such that the importance of the relevant rights determines (together with other considerations such as feasibility and reasonable costs) the justifiability of the enforcement of the duties to protect or promote their fulfillment. (3) The previous point helps me to address another worry, and to entertain a reformulation of the account proposed. The worry is that the account of justice proposed may force us to exclude imperfect duties from the domain of justice because they may be unenforceable even prima facie. If Gillian has an imperfect duty to help the destitute, she has discretion as to whom to help and how to do it. Given this discretion, we have no clear target for enforcement.30 A first response is that enforcement may still be possible when the duty-bearer has discretion. One way to do this is to demand that the agent show periodically, at defined times, that they have chosen some of the possible ways to fulfill their imperfect duty or face penalties. The agent still operates with a disjunctive set of possible ways to help (for example, they can help A or B or C…). But they can be asked to show that they have chosen at least one of the items in the disjunction. There is also the option, considered above, of “perfecting” the imperfect duty through institutional specification by for example demanding that Gillian pay taxes, which are in turn   21   used to fund specific policies of aid for certain individuals. But important as it is, this solution is partial, as there will still be some additional duties that remain imperfect. The choice by officials of relevant policies to assist the destitute may itself involve some discretion. This point has been overlooked by proponents of the strategy of “perfecting duties.” Here the imperfection is eliminated at one level but at the cost of generating it at another. Thus, this strategy cannot yield the elimination of imperfect duties. This circumstance is not, however, a source of despair if we reject contrast III, as I recommend in this paper. There may be other cases in which certain duties are unenforceable because they are simply not the kind of thing that can be enforced and are, thus, not even prima facie candidates for enforcement. This might hold in the case of certain psychological and cultural traits and dispositions that are not directly under the voluntary control of agents (such as a spirited concern for the plight of the worse off, and a readiness to participate in democratic politics when there is no legal articulation of the relevant duties). But these phenomena can still be shaped, indirectly and over the long-term, by agents. We can increase the presence of such traits and dispositions through education, material incentives, and other mechanisms. And we can be under prima facie enforceable duties to support the use of those mechanisms. For example, we may have duties to publicly fund educational opportunities, democratize access to the mass media, and much else that affects people’s knowledge and attitudes. This is another case of application of the idea of dynamic duties (see 3.iv above). A more radical response to the current worry would be to revise the account of duties of justice by relativizing the enforceability clause even further. In addition to seeing it as explanatorily dependent on the clause referring to important rights, we can see prima facie enforceability as typically, but not always or necessarily a feature of duties of justice. This could be a case in which strict analysis in terms of sufficient and necessary conditions breaks down,   22   and we rest content with identifying a set of typical features of a concept. On this weaker approach to conceptual inquiry, the characterizing features need not all hold in every case. Another possibility is to see enforceability as marking a species within the genus of justice (as pertaining, for example, to something that could be called “political” or “institutional justice”). (4) A further worry is that the acceptance of imperfect duties of justice is incompatible with the view that duties of justice correlate with rights. Some could argue that only duties that are clearly directed to specifiable claimants can correlate with rights. If Gillian can fulfill her duty to help some within a set of three persons, none of those persons has a claim against Gillian that they specifically be helped by her. This challenge can be answered in many ways. Some were already mentioned (when referring to mechanisms for “perfecting” duties). But the issue of directedness can also be tackled by noticing that Gillian’s imperfect duty is in principle directed to all of the three potential beneficiaries. Each has a claim that they be considered as a potential beneficiary. None would be wronged by Gillian if another potential beneficiary is chosen in their stead (as Gillian is permitted to choose), but they would be wronged if they were not so considered, and, of course, if none of them were helped. If the relevant duty is primarily based on the importance to the destitute of avoiding their penury (rather than, say, on the sense of elevation that Gillian would get from helping) then the duty already has a direction toward right-holders. Notice that this directedness should orient not only immediate responses in the present, but also strategies of action for the future. Besides having the normal duty to help some of the destitute now, Gillian, together with others, may have a dynamic duty to foster social arrangements under which all (or more) of the destitute get the help they need. Another possible response is to adopt a narrow view of rights as bounded up with perfect duties but to relax their characterization. We could do what was suggested above when referring   23   to enforceability, and see claimability (narrowly conceived) as a typical, but not always necessary, feature of justice. 31 Still another response is to drop acceptance of imperfect duties as duties of justice. This would simplify the discussion in (3) and (4) because there would be no need to contest or revise the reference to any of the components of the account of duties of justice proposed. However, my current state of reflective equilibrium says that we should avoid the dramatic surgery involved in this suggestion. It would require, implausibly, that we omit from the set of duties of justice some that seem to be among their paradigmatic cases (such as the duty to contribute to the reform of unjust societies and to support just ones). (5) Another potential worry is that my account of justice is too beneficiary-centered. This impression might arise because rights are said to be based on the importance of certain conditions or goods to right-holders. This seems to omit consideration of the perspective of duty-bearers. But the interest of a putative right-holder in certain conditions or goods is not sufficient for grounding a right to it; we also need to show that the agents with the putative correlative duties of protection or promotion in fact ought to acknowledge such duties. I agree that the perspective of duty-bearers is important in determining whether there is a right. Such a perspective is already taken into account when we see the enforceability of the implementation of demands of justice as depending on their feasibility and reasonable cost (which partly concern the duty-bearers’ ability to do what is demanded without shouldering unacceptable burdens). I now suggest that such concerns of feasibility and reasonable cost can also be seen to apply to the determination of the existence of the duties themselves. We can bring the perspective of duty-bearers further into focus when developing a conception of rights. In my own view, we can proceed on the basis of the following schema: If A (a right- holder) has a right to O (a certain object involving an important condition or good) against B (a   24   duty-bearer), then there are feasible and reasonable demands on B that they respect or promote, in some significant ways to be specified, A’s access to O. The specification of what B owes to A regarding O tracks the moral importance of A’s interest in O, the feasible ways for B to respect or promote A’s access to O, and the subset of such feasible forms of respect and promotion that do not involve morally unacceptable burdens on B or others (given the importance of their own interests) and on A (given the importance of other interests of A besides that concerning access to O). The specification and justification of A’s right is coterminous with the specification and justification of B’s (and other duty-bearers’) duties. No right is justified only by considering what would benefit A. Even if access to O would greatly benefit A, A does not have a right to O against B if B cannot feasibly affect A’s access to O, or could only do it in advantageous ways to A by incurring unreasonable costs. As we identify B’s duties to A, we can also factor in additional moral considerations such as responsibility and fairness. Sometimes the fact that A’s lack of access to O has resulted from blamable voluntary choices by A may diminish B’s obligations; sometimes B’s obligation may be more stringent if A’s lack of access to O is the result of what B has blamably done; and sometimes the computation of the extent of sacrifice B can reasonably incur in supporting A has to include what other agents C can and should do. The kind of holistic assessment just mentioned would also help capture the multiple considerations that can go into the identification and justification of rights and duties of justice. These may depend on associative concerns (such as those regarding justification of coercion, reciprocity in economic cooperation, equity in relations of production and political decision- making so that exploitation and domination are avoided). My rejection of a definitional reduction of the concept of justice to associative responsibilities does not deny that justice includes them. Its point is to prevent a definitional suppression of other responsibilities of justice that are not associative (as arguably at least some human rights based ones are).   25   Rights of justice, as I acknowledged, cannot simply be articulated by reference to the demand side (the interests of right-holders). We also need to illuminate the perspective of duty-bearers. But we do not need to assume as a conceptual matter the substantive view that the demand side can never, as it were, outstrip the general negative duties and special associative responsibilities of suppliers. A substantive view of justice as responding positively (within the limits of what is reasonably feasible) to the important interests of outsiders is a lively option that must be taken into account and engaged in normative argument. There are views of justice as reduced to duties not to take goods away from others, or as only recognizing frameworks of cooperation in which every participant “breaks even” (never giving more than they receive), or as deepening mutual service (when it goes beyond strict equivalence) only when it happens among people already wrapped in the flag of a particular nation, state, or common economic venture. But these views are just some candidates among others. They have to face the alternatives rather than outsource the concerns those alternatives articulate to the realm of beneficence. What would be lost if such concerns are indeed outsourced to the realm of beneficence? What would be lost, I think, is the opportunity to see how those concerns may affect the content, existence, and weight of the negative and associative duties that we already accept. Expanding the circle of justice forces us to seek more perspicuous, integrated, and practically lucid pictures of what we owe to each other.32 We should take everyone’s important interests to heart before deciding whether we can permissibly see some of them as giving rise only to weaker or supplementary calls on our charity. (6) How significant is the discussion about the distinction between justice and beneficence? Why should we care about what does and what does not belong to justice?33 Perhaps we could do all the theoretical work we need to do if we drop reference to justice and beneficence and simply talk about the different reasonable moral demands we can make on each other: some negative, some   26   positive; some grounded in rights, some not; some institutionally articulated, some interpersonal; some associative, some general; etcetera. We could simply identify these different demands, their mutual constraints, and their relative weight in different domains of application. What is crucial, it might be said, is that we have a clear picture of the different duties that capture what we owe to each other, their content, relation, and weight. Whether we call them duties of justice or beneficence is immaterial. On reflection, I think that we should keep referring to justice (construed as I suggest) as different from beneficence for four reasons. A first reason is pragmatic. The invocation of the distinction between justice and beneficence is pervasive in moral and political theory and practice. A call for dropping the terms “justice” and “beneficence” is not likely to succeed. Furthermore, it is common to say that demands of justice are more important than, or have priority over, demands of beneficence. If we want to make sure that certain important demands (such as those that are positive, and go beyond state-based associative reasons) are not downplayed or made to wait, it is wise to construe them as part of justice. It could be replied that if the distinction between justice and beneficence, with its in-built hierarchy, is bound to remain, it is also likely to fail to include the capacious view of justice that I recommend. Is not that view arbitrary in any case? The answer (and this is my second point) is that the construal I offered is not arbitrary. As I said at the outset, it is not a mere elucidation, and so it is not meant to simply report current usage. But no view that merely reports current usage will be satisfactory because there is no thoroughly agreed upon usage anyway. So we need a constructive proposal. The proposal I offer, on the other hand, is not a mere stipulation. It builds upon ideas of rights and enforceability, which are in fact quite central to the actual practice of moral and political debate (even if it construes them in a specific way).   27   Third, my proposal about how to construe justice meets the five reasonable desiderata. It helps us identify stringent demands, enables us to engage in important substantive debates, is tolerably determinate, helps us fulfill the critical role of considerations of justice, and makes it possible to clarify the stakes in important contemporary debates about justice (especially about global justice). A concept of justice with those virtues is worth using. Finally, although capacious, my account of justice does not swallow all putative demands of beneficence.34 Some of those demands are in fact absorbed by justice (as is the case with easy rescues attending to urgent needs35), but others remain beyond justice (as is the case with some ways of benefitting others that cannot plausibly be construed as responding to prima facie entitlements). My account enables the grasp of the wealth of reasons of justice, but it also honors the widespread intuition that there are some ways of making the life of others better that are not demanded by justice. We do need a separate conceptual domain for beneficence. (7) Another worry about my account of duties of justice is that it fails to capture the relational nature of justice and the active dimension of persons. The account seems to be non-relational but instead focused on end-states and it seems to see those states as befalling persons in a passive way. The account, it might be said, is fixated on the issue of what some person A gets. But it should, instead, focus on how another person B treats A, on what kinds of relations exist between A and B, and on what A and B have done to each other. Access to goods is an important, but subordinate dimension. Justice should range over persons as related and active agents, not over persons as isolated and passive recipients. Otherwise, we cannot capture the difference between B’s duties toward A if the disadvantage experienced by A is the result of a natural disaster and when it is the result of relations of economic or political exploitation or domination imposed by B. B’s action to help improve A’s condition is, in the first case, a matter of charity, whereas in the second it is a matter of justice proper.36 Besides illuminating the involvement of B, we must   28   also consider the agency of A and ponder whether A deserves B’s support, and what kind of support is fitting if A is to function as an independent person. This worry captures two important intuitions, but does not debunk my broad account of justice. The intuitions are that it matters for justice how circumstances of advantage and disadvantage result from social relations, and that it also matters that people see themselves and each other in those relations as active agents with power and responsibility. But those intuitions can be captured without surrendering the approach proposed. If B helps A to overcome the penury resulting from a natural disaster, B could be adopting a certain relational stance toward A, one in which the penury of another human being may trigger an obligation of support. We should construe the idea of a relational stance capaciously. It may include associative concerns about non-exploitation and non-domination, and general negative duties to avoid undue harm. But it may also involve a general commitment not to let fellow human beings down when they are stuck in penury. Some forms of moral solidarity might be duties of justice (while others, of course, might be duties of beneficence: for example, we may have a duty of justice to help provide clothes to the destitute, but we might have only a duty of beneficence to give them their favorite clothes37). In such cases, when we consider others’ states of disadvantage we do not only ask “Have I done that to them?” or “Was it my fault?” We also ask “May I allow that to go on?” or “May I let that happen to them?” Injustice may be done to others through indifference. Several issues of agency are of course important. Resources for support do not normally materialize without being the result of productive efforts by some agents (thus the reference to fairness to duty-bearers mentioned in 4(5) above). And those helped are not to be seen as mere passive receptacles of beneficial stuff, but as agents who could be participants in their own amelioration38 (and sometimes morally responsible for bringing about their own disadvantage). But we can, and on some substantive views of justice we should, also pay attention to the   29   significance of need and mutual dependency. A radical ideal of independence is arguably infeasible and undesirable. It is part of what persons are that they need the support of others to avoid the bad and the wrong and to pursue the good and the right. We can, and arguably we should, relate to each other so as to respond to that vulnerability with solidarity. Persons are not merely passive recipients, but they are passive to an important extent. They should not have to feel humiliated if they are helped, and they should not have to feel guilt when they help others. We can capture these points by acknowledging (multiply qualified) general rights and duties of justice of mutual support. (8) I conclude these reflections by considering briefly one of the hardest issues in the discussion about the idea of justice: How do we identify the difference between a concept and a conception? Is this difference sharp or porous? A view I find worth entertaining is that this difference is in fact not tight. We can see the concept of justice as marking a territory of debate that is valuable to identify and explore. But the boundaries of that territory depend on our substantive interest in areas of it, and in our concern for engaging each other in its examination even if we disagree about the content of the important areas. On this view, our conceptual commitments are partly driven by our substantive normative beliefs. The former are meant to help us articulate, voice, and assess the latter. But why include in a concept the possibility of a conception one considers false? Because (inter alia) one has a quite general, substantive commitment to engage other human beings in argument about what we owe to each other. To do this, we need conceptual tools that allow us to work (and also quarrel) together. I realize that this picture of the debate about concept and conceptions of justice may assume a humanist cosmopolitan commitment to the framing importance of equal respect and concern for all human persons. But if one cannot fully disengage concept from conception at some point, this seems a point worth resting at.   30   Acknowledgments For helpful comments or conversations I thank referees, Arash Abizadeh, Elizabeth Ashford, Charles Beitz, Rainer Forst, Francisco Garcia Gibson, Mariano Garreta-Leclercq, Waheed Hussain, Carl Knight, Rahul Kumar, Barbara Herman, Louis-Philippe Hodgson, Alistair Macleod, Julio Montero, Mark Nelson, Henry Richardson, Andrea Sangiovanni, Peter Singer, Laura Valentini, Alex Voorhoeve, and participants in colloquia at the Centro de Investigaciones Filosoficas (Buenos Aires), Princeton University Center for Human Values, Queen’s University, University of Montreal, and Glasgow University. My research was supported by a grant from the Social Sciences and Humanities Research Council of Canada. Note on contributor A native of Argentina, Pablo Gilabert is an Associate Professor in the Department of Philosophy at Concordia University (Montreal, Canada). He has been an HLA Hart Visiting Fellow at the University of Oxford, a DAAD Fellow at the University of Frankfurt, a Visiting Fellow at the Australian National University, and a Laurance S. Rockefeller Visiting Faculty Fellow in the Center for Human Values at Princeton University. His papers appeared in journals such as The Journal of Political Philosophy, Political Theory, The Philosophical Quarterly, Philosophy and Phenomenological Research, Philosophical Studies, Political Studies and Ethical Theory and Moral Practice. He is the author of From Global Poverty to Global Equality. A Philosophical Exploration (Oxford: Oxford University Press, 2012).   31   References Ashford, Elizabeth, 2007. The duties imposed by the human right to basic necessities. In: T. Pogge, ed., Freedom from poverty as a human right. Oxford: Oxford University Press, 183-218. Beitz, Charles, 2009. The idea of human rights. Oxford: Oxford University Press. Buchanan, Allen, 1987. Justice and charity. Ethics, 97, 558-575. Buchanan, Allen, 2004. Justice, legitimacy, and self-determination. Oxford: Oxford University Press. Caney, Simon, 2011. Humanity, associations, and global justice. Monist, 94, 506-534. Cohen, Gerald, 2008. Rescuing justice and equality. Cambridge, MA: Harvard University Press. Cohen, Joshua, 2002. Taking people as they are? Philosophy and Public Affairs, 30, 363-386. Cohen, Joshua and Sabel, Charles, 2006. Extra republicam nulla justitia? Philosophy and public affairs, 34, 147-175. Fleischacker, Samuel, 2004. A short history of distributive justice. Cambridge, MA: Harvard University Press. Forst, Rainer, 2012. The right to justification. New York: Columbia University Press. Gauri, Varun, and Brinks, Daniel, 2012. Human rights as demands for communicative action. Journal of political philosophy, 29, 407-431. Gilabert, Pablo, 2009. The feasibility of basic socioeconomic human rights. A conceptual exploration. Philosophical quarterly, 59, 559-581. Gilabert, Pablo, 2010. Kant and the claims of the poor. Philosophy and phenomenological research, 81, 382-418. Gilabert, Pablo, 2011a. Humanist and political perspectives on human rights. Political theory, 39, 439-467. Gilabert, Pablo, 2011b. Feasibility and socialism. Journal of political philosophy, 19, 52-63.   32   Gilabert, Pablo, 2012. From global poverty to global equality. Oxford: Oxford University Press. Gilabert, Pablo, 2013. The capability approach and the debate between humanist and political perspectives on human rights. A critical survey. Human rights review, 14, 299-325. Gilabert, Pablo, 2015. The socialist principle ‘from each according to their abilities, to each according to their needs’. Journal of social philosophy, 46, 197-225. Gramsci, Antonio, 2000. The Antonio Gramsci reader, ed. D. Forgacs. New York: NYU Press. Kagan, Shelly, 1998. Normative ethics. Boulder, CO: Westview Press. Hart, HLA, 1994. The concept of law, 2nd. ed. Oxford: Oxford University Press. Miller, David, 1999. Principles of social justice. Cambridge, MA: Harvard University Press. Miller, David, 2007. National responsibility and global justice. Oxford: Oxford University Press. Miller, Richard, 2010. Globalizing justice. Oxford: Oxford University Press. Nagel, Thomas, 2005. The problem of global justice. Philosophy and public affairs, 33, 113-147. Narveson, Jan, 1988. The libertarian idea. Philadelphia, PA: Temple University Press. Nozick, Robert, 1974. Anarchy, state and utopia. New York: Basic Books Nozick, Robert, 1981. Philosophical explanations. Cambridge, MA: Harvard University Press. Nussbaum, Martha, 2000. Duties of justice, duties of material aid: Cicero’s problematic legacy. Journal of political philosophy, 8, 176-206. O’Neill, Onora, 1996. Toward justice and virtue. Cambridge: Cambridge University Press. Pogge, Thomas, 2008. World poverty and human rights, 2nd. ed. Cambridge: Polity. Rawls, John, 1999a. A theory of justice, rev. ed. Cambridge, MA: Harvard University Press. Rawls, John, 1999b. The law of peoples. Cambridge, MA: Harvard University Press. Sangiovanni, Andrea, 2007. Global justice, reciprocity, and the state. Philosophy and public affairs, 35, 2-39.   33   Sen, Amartya, 2004. Elements of a theory of human rights. Philosophy and public affairs, 32, 315-356. Sen, Amartya, 2009. The idea of justice. Cambridge, MA: Harvard University Press. Shue, Henry, 1988. Mediating duties. Ethics, 98, 687-704. Singer, Peter, 1972. Famine, affluence, and morality. Philosophy and public affairs, 1, 229-243. Swift, Adam, 2006. Political philosophy, 2nd. ed. Cambridge: Polity. Tan, Kok-Chor, 2004. Justice without borders. Cambridge: Cambridge University Press. Van Parijs, Philippe, 2007. International distributive justice. In: R. Goodin, P. Pettit, T. Pogge eds., A companion to contemporary political philosophy, 2nd .ed. Oxford: Blackwell, 638-652. Waldron, Jeremy, 1993. Liberal rights. Cambridge: Cambridge University Press. Wiggins, David, 2006. Ethics. Cambridge, MA: Harvard University Press. Wittgenstein, Ludwig, 2009. Philosophical investigations, 4rd. ed. Oxford: Wiley-Blackwell.                                                                                                                 1 For the distinction between concept and conception see Rawls (1999a, p. 5) and Hart (1994, pp. 160, 246). 2 The phrases “conditions and goods,” “entitlements,” “rights,” and “duties,” are broad enough to allow for whatever a conception takes to be the distributively relevant (e.g. they allow comparative considerations about the standing of persons in relation to others). 3 Some such features (even if they do not all apply in every case) may mark the “family resemblance” amongst duties of justice. On “family resemblance” see Wittgenstein (2009, sects. 65-7). The use of this approach might make a proposal less open to challenge via counterexamples. The latter can be seen as identifying borderline cases that lie beyond the core of the concept. For deployments of this strategy see section 4. 4 For the point that justice concerns giving each person their due, see Wiggins (2006, Lecture 10) and Cohen (2008, p. 7). For elucidation and critical discussion of contrasts II through V, see Buchanan (1987). For a presentation of contrasts IV and V see Miller (2007, pp. 248-9). See also Miller (1999, p.76): “One test of the distinction between justice and humanity is whether those in need are regarded as having enforceable claims to the resources that will meet their needs, and correspondingly whether potential donors are regarded as being under enforceable obligations to provide those resources.” An example of contrast VI appears in Tan (2004, p.21). Tan actually focuses on the related question of the distinction between “justice” and “ethics,” claiming (on the basis of an interpretation of Rawls’s theory of justice) that the former has an “institutional focus” while the latter has an “interactional focus.” Tan distinguishes his view from Pogge’s view, according to which an “institutional approach not only has an institutional focus, but it also has an institutional basis or justification,” and he does not “share the justificatory claim in Pogge’s approach that we have duties of justice only in so far as we are causally via our institutions responsible for injustices” (Ibid.). For Pogge’s view, see his (2008). Rawls (1999b, pp. 195ff.) contrasts distributive justice and humanitarian assistance. Contrast VII is embraced by the majority of philosophers in the current debate on global justice (although the normatively relevant forms of association are characterized in different ways—see notes 27-28 below). For challenges to it see, however, Caney (2011) and Gilabert (2012, chs. 5-6). My discussion focuses on contemporay debates. For historical explorations, see Fleischacker (2004); and Nussbaum ((2000). 5 Gilabert (2012, pp. 11-8). This paper differs from that earlier text in the following ways: an account of deliberative interpretive proposals is advanced, the characterization of justice is changed to include reference to access to goods   34                                                                                                                                                                                                                                                                                                                                                                           and conditions rather than merely to advantages, the list of desiderata is explicitly stated and is expanded to include determinateness and illumination of practices, the contrast Associative / Non-associative is added, the arguments defending the proposed characterization of justice are rephrased to make them sharper and additional arguments are advanced. The final section of this paper takes the discussion further by addressing possible challenges and by providing further elaborations of the proposed characterization of justice. Finally, this paper does not endorse a deflationary conclusion about the importance of the distinction between justice and beneficence. 6 Swift (2006, p. 6). 7 Nozick (1981, pp. 498-504). As Francisco Garcia Gibson pointed out to me, considerations about costs to agents may affect duties of justice in different ways (e.g. by impacting their content, weight, or enforceability). 8 Rawls (1999, pp. 266-7). 9 See, e.g., Van Parijs (2007, p. 641). 10 For the libertarian view, see Nozick (1974) and Narveson (1988). 11 Buchanan (1987, pp. 562-9). 12 Rawls (1999a, pp. 249-51, 291-2). 13 Miller (2007, p. 249). 14 Cohen (2008, ch. 3). See also Sen (2009, pp. x-xi, 10, 67-9, 75-86). 15 See Cohen (2002). See also Rawls, (1999a, sect. 41). 16 Another instructive example is Gramsci’s view that socialist transformations in Western democratic societies are only likely to succeed if socialist activists manage to make their values and demands hegemonic within the sphere of civil society before they find realization through state action. See Gramsci’s discussion on the phenonemon of hegemony within civil society in Gramsci (2000, pp. 195, 205-6, 211-2, 249, 306-7, 333-4, 345). 17 A similar skepticism might partly explain why it is a good thing that the Convention for the Elimination of all Forms of Discrimination Against Women ranges over “the political, economic, social, cultural, civil or any other field” (Article 1). Part of the difficulty of this discussion turns on how to handle the distinction between what contitutes and what causes justice. See Cohen (2008, pp. 377-81). 18 I agree with Waldron (1993, pp. 25, 212) that rights generate “waves of duties” of many kinds. 19 On the role of courts in getting the political process to acknowledge and specify rigths see Gauri & Brinks (2012). 20 Rawls (1999a, pp. 99, 293-4). 21 The natural duty of justice has another part that concerns the obligation to support existing just schemes. A critic might say that this part connects only to perfect obligations. But this would be a mistake. One aspect of the duty to support just schemes, the obligation to obey just laws, is a perfect duty. But the members of a just scheme have a wider, imperfect obligation to actively engage in activities that help keep the just arrangements alive, such as voting (when it is not legally mandatory), participating in political parties, public debates, etc. 22 For elucidation and exploration of the category of “dynamic duties,” see Gilabert (2009; 2011b). 23 Shue (1988); Gilabert (2010). 24 Furthermore, institutional structures sometimes create certain roles, and thus give rise to specific interests and responsibilities (Leif Wenar, “Justice and Charity. Rawls, Roles, and Rights”—Talk delivered in the wokshop “Justice and Beneficence.” Princeton University, 9 November 2012). 25 These arrangements would include certain conventions (including those of language). These are of course, in one sense of the term, “institutional facts.” But I am here focusing on more formalized institutions whose rules are shaped and applied in a way that involves top-down command, without requiring the direct consent and control on the part of (at least some of) their subjects when they are applied. 26 For a historical study of the emergence of this idea, from Babeuf to Rawls (and their surrounding political contexts), see Fleischacker (2004, ch. 3). See also Miller (1999, ch. 1). Miller suggests that socialist challenges to capitalism played an important role in the emergence of the contemporary idea of “social justice” (p. 3). On socialist justice, see Gilabert (2015). 27 Nagel (2005). 28 Cohen & Sabel (2006); Sangiovanni (2007); Miller (2010). 29 Just as we can recognize agent-neutral besides agent-relative duties in the case of human rights, we can acknowledge both kinds of duties in the case of some egalitarian claims. See Buchanan (2004); Caney (2011); Gilabert (2012). For a different, “practical” characterization of human rights that does not rely on a humanist approach see Beitz (2009). Gilabert (2011a; 2013) argue that the insights in such a view can, and should, be combined with the humanist approach.   35                                                                                                                                                                                                                                                                                                                                                                           30 The problem of the imperfection of duties in fact involves many possibilities depending on what aspect of a duty we focus on. The difficulties may be to identify the duties’ corresponding (a) agents, (b) acts or omissions, (c) beneficiaries, or (d) circumstances of application. 31 For other discussions on claimability see the specific proposal by O’Neill (1996), and the criticisms to it by Sen, (2004) and Ashford (2007). 32 This does not involve obliterating the distinctions between different kinds of duties of justice (negative and positive, general and associative, and the different varieties of each). They can and should all be articulated. The key point is that their mutual relations become an explicit and necessary target of discussion. 33 Cohen (2008, pp. 289-90 n.14) reports Joseph Raz’s puzzlement on this score. Some authors claim that the reference to justice does not add anything fundamental to a full account of moral duties, and that it is in fact wholly derivative. See Kagan (1998, pp. 176-7) and Buchanan (1987, pp. 574-5). 34 It also does not obliterate (and in fact invites the grasp of) different reasons of justice. See note 32 (and surrounding text). 35 Thus, Peter Singer construes the positive duty to help reduce global poverty as a matter of beneficence (on the basis of the famous analogy with the duty to rescue a child drowning in a shallow pond). See Singer (1972). But we can construe this positive duty as a demand of justice. We could then preempt the common reaction (for example by officials of governments of wealthy nations) that attending to this duty must wait until other, more stringent demands of justice have been taken care of first. 36 Forst (2012, p. 4). 37 I owe this example to Peter Singer (who does not, however, support my account of the distinction between justice and beneficence). 38 I think that this should include recognizing a right to participate in the political regulation of practices of production and distribution. For this important point see Forst (2012,p. 4). 
work_be7dyhrxy5dgplp3kindr5exda	----	Microsoft Word - Jenkins (2017) Setting energy justice apart from the crowd.docx Setting energy justice apart from the crowd: lessons from  environmental and climate justice Article (Accepted Version) http://sro.sussex.ac.uk Jenkins, Kirsten (2018) Setting energy justice apart from the crowd: lessons from environmental and climate justice. Energy Research and Social Science, 39. pp. 117-121. ISSN 2214-6296 This version is available from Sussex Research Online: http://sro.sussex.ac.uk/id/eprint/71448/ This document is made available in accordance with publisher policies and may differ from the published version or from the version of record. If you wish to cite this item you are advised to consult the publisher’s version. Please see the URL above for details on accessing the published version. Copyright and reuse: Sussex Research Online is a digital repository of the research output of the University. Copyright and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable, the material made available in SRO has been checked for eligibility before being made available. Copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. http://sro.sussex.ac.uk/ 1 “Setting energy justice apart from the crowd: Lessons from environmental and climate justice” Abstract The continuation and exacerbation of many environmental failures illustrate that environmental and climate justice’s influence on decision-making is not being systematically effective, giving rise to a renewed emphasis on finding new, more focused, justice models. This includes the energy justice concept, which has received ready and growing success. Yet for energy justice, a key question keeps arising: what does it add that environmental and climate justice cannot? To answer this question this perspective outlines the origins, successes and failures of the environmental and climate justice concepts, with a view to both distinguishing the energy justice field, and providing cautionary tales for it. It then outlines three points of departure, which it argues increases the opportunity of success for the energy justice concept: (1) “bounding out”, (2) non-anti-establishment pasts and (3) methodological strength. This paper exists to stimulate debate. Key Words: energy justice; environmental justice; climate justice; equity Highlights • We need to distinguish environmental, climate and energy justice contributions • The environmental justice agenda has had limited pervasive impact beyond the grassroots level • Climate justice is too late and too complicated to tackle • The energy justice concept provides a more focused means to tackle injustices with environmental and climate knock-ons 2 1 Introduction In terms of academic airtime, the energy justice concept has achieved rapid success. Although its roots extend further back, since its first use as a policy-oriented term by McCauley et al. in 2013 energy justice scholarship has emerged with regards to whole-systems, energy policy-making, consumption and mobility as prominent themes amongst myriad others (Jenkins et al. 2017a). Aiding the rapid development of this literature, there have been two special issues with “energy justice” in their title, one in Energy Policy (Jenkins et al. 2017a) and one in Energy Research & Social Science (Simcock and Mullen 2016). Yet despite this apparent success key questions continue to emerge within the academic conference circuit: how is the debate on energy justice substantively different from environmental and climate justice? Is it the same thing labelled in a different way? Is the “energy only” focus reductionary? And what can it deliver that environmental and climate justice failed to? As one of innumerate examples from the literature, does the application of the energy justice concept to climate issues by Sovacool et al. (2016) illustrate overlap, or demonstrate something more productive? This perspective paper makes a first step towards answering these questions. The paper begins by outlining origins, successes and failures of the environmental and climate justice concepts, with a view to both distinguishing the energy justice field, and providing cautionary tales for it. It then outlines three points of departure, which it argues increase the opportunity of success for the energy justice concept: (1) “bounding out”, (2) non-anti-establishment pasts and (3) methodological strength. This paper exists to stimulate debate. 2 Successes and failures of the environmental and climate justice movements The following paragraphs introduce the environmental and climate justice literatures and begin to build the case for energy justice as a more manageable approach with beneficial environmental and climate knock-ons. 2.1 Environmental justice Environmental justice is commonly defined as the distribution of environmental hazards and access to all natural resources; it includes equal protection from burdens, meaningful involvement in decisions, and fair treatment in access to benefits (see Sovacool and Dworkin 2015; Hofrichter 1993; Schlosberg 1999; Cole 3 and Foster 2000). The environmental justice movement emerged in 1970s North America as a response to the unequal distribution of environmental ills – pollution and waste facilities, for example – alongside the risks associated with them, which tended to be inequitably borne by poor black/minority ethnic Americans (Davies 2006; Williams 1999). Thus it manifests as a concern for “fair treatment and meaningful involvement of all people regardless of race, colour, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies” (Bass 1998: 83). Through a focus on alerting, educating and mobilising the public to the unequal distribution and environmental risks and benefits, and also on ensuring the meaningful participation of affected communities in decision-making, it represents distributive and procedural justice concerns (Evans and Phelan 2016). Initially, environmental justice complaints focused on local, activism-led, community-oriented means of ensuring the just distribution of toxic burdens; a distributionally-based form of environmental justice inquiry that could be operationalised and measured on a local scale (Holifield et al. 2009). Since its inception, however, many authors have noted that the concept of environmental justice has grown both substantively and theoretically (Bevc et al. 2007; Pulido 1996; Walker 2009; Schlosberg 2013). Williams (1999) illustrates, for example, that federal governments established policies to protect against future inequity in environmental decisions, recognising not just local, but also national impacts of noxious facilities. Thus the geographical scale of application within the Unites States changed. In this regard, Agyeman and Evans (2004) identify two inter-related dimensions of this form of environmental justice: (1) a local, activist level using it as a vocabulary for mobilisation, action, and political opportunity, and (2) a government level that sees environmental justice as a policy principle, stating that no public action will disproportionately disadvantage any particular social group. Further, in their review of environmental justice literature Reed and George (2011) state that whilst much research is still framed around the distribution of hazards and risk, the scope of what these risks are perceived to be has grown too. In the years following their analysis this is increasingly the case. Indeed, within the literature topics of concern range from prominent debates on toxic waste, air pollution and landfill sites, to new technology, ecological restoration, transport, health, energy, housing, access to food and forest management, amongst others (Sze and London 4 2008; Schlosberg 2013; Liu 2000; Walker 2009). Yet despite this, Hess and Ribeiro (2016) identify that energy has yet to become a major concern for environmental justice, and that injustices along the global supply chain have not yet been tackled satisfactorily. Holifield et al. (2009) also highlight a shift within the movement towards a more multi-faceted understanding of the concept, where environmental justice is increasingly used in coalition with other theories and agendas, including the capabilities approach, social movement theories, assemblages, and actor network theory. In this regard the environmental justice agenda has gradually expanded from a social movement to a policy vocabulary, and a research field in its own right (Bulkeley et al. 2013; Agyeman 2014; Walker and Bulkeley 2006). On the grounds of this expanding scope, some see the literature as flourishing, expanding, and deepening. They do so as apparent recognition of a growing international scholarship, with many instances of engagement through both activism and policy processes (although the successes of these are challenging to verify) (Chakraborty 2017). The expanding scope of environmental justice interpretations and applications are also understood by some as necessary, given that justice is an inherently complex and contested concept which will inevitably be taken to mean different things in different settings, cultures, and political arenas. Conscious of this positivity, it is therefore problematic to determine whether the environmental justice concept or movement is either a “success” or a “failure”, despite the following negative critiques. With this in mind, this paper does not prescribe a positive or negative outcome or suggest an abandonment of environmental justice work. Instead, it argues that this growth limits the material impact of environmental justice claims. Notwithstanding the widespread uptake of the topic within academia, the environmental justice agenda is widely criticised for its failure to have a pervasive impact beyond the grassroots level – the result, perhaps, of increasing diffusion of its meaning and application, and a lack of a strong conceptual core. As an illustration, Bickerstaff and Agyeman (2009) note the limited uptake of the environmental justice concept in the UK, where the environmental justice movement does not utilize the vocabulary of mobilising minority and low-income groups, and, in their words, is yet to make any significant impact on policy and decision-making. Reed and George (2011) demonstrate that despite some overseas proliferation, on the whole 5 environmental justice research remains US-centric. Heffron et al. (2015: 175) later reinforce this critique by stating that environmental justice faces two problems: (1) that the definitions are too broad and (2) that this has resulted in difficulty of translation into economics and therefore, policy formation. This perspective identifies that energy justice faces (at least) two major weaknesses. Firstly, whilst the concept has been used as a mobilizing tool, it lacks defined and recognised content—a structure or approach that can be readily applied at a range of scales in a systematic manner. Secondly, because of the way the concept has been used, it has not achieved much environmental protection or conservation. Instead, the main motivation of the movement has been the affect on less affluent areas—a concern for people, not their environment. The result, arguably, is a floundering concept, with little benefit beyond the grassroots level. 2.2 Climate justice The evolution of the climate justice concept and movement sits alongside the methodological and theoretical growth of environmental justice. Climate justice first evolved from climate change activism, where a focus on the grassroots environmental justice movement combined with concern for global climate change. The concept, or movement, began gathering pace in the 1990s, with a focus primarily on: assisting those affected by climate change; sharing the burdens and benefits of climate change; mitigation and adaptation; and reducing CO2 emissions (Lyster 2015). Goodman (2009: 509) thus describes the role of climate justice as an “interpretative frame” for the climate crisis, and a concept that addresses the “triple inequity” of mitigation, responsibility and vulnerability by (1) asking who benefits from CO2 emissions and how should they bear the burden for mitigation, (2) recognising the vast divergence in capabilities to respond to global climate change, and (3) addressing the issue of adaptation, the burdens of which are unequally focused on the world’s poor. Bulkeley et al. (2013: 915) summarise the agenda as the mobilisation of justice with respect to climate policy, and state that the concept has “provided a means through which to bring concerns for the outcomes and processes of climate policy into the same frame of analysis”. They go on to state that in contrast to the origins of environmental justice in local struggles, arguments or debates about climate justice appear predominantly at the international level (see also Lahn 2017 and Ciplet 6 and Roberts 2017). Heffron et al. (2015) point to the perceived failure of the international Kyoto Protocol for example, which triggered climate protests and calls for climate justice. The climate justice framework has, however, also been applied to nation states and cities, demonstrating national, local and international applicability (e.g. Ambrey et al. 2017, Bulkeley et al. 2013 or Zhang et al. 2017). In addition, although climate justice has predominantly concerned itself with issues of justice among and between existing and future humans (Palmer 2011), work such as that of Schneider and Lane (2006) on “inter-species equity” conceptualises its impact more widely (Sovacool et al. 2017). The challenge that climate justice is a struggling concept is, to some scholars, not going to be a welcome one. As with environmental justice, counter arguments may come as the defence that the concept is understood and used in different ways due to different understandings and manifestations of (in)justice—a perhaps understandable diversity. Moreover, some may assert that the relatively limited application of climate change policy hides its successful application in a local setting or on a smaller scale, where it may hold more promise. Indeed, you could claim that without climate justice arguments being mobilised in international and local forums, progress would have been even more phlegmatic and even more inequitable. Yet, despite this positivity, a number of authors have increasingly begun to reflect on the failures of the climate justice literature (Schlosberg and Collins 2014; Heyward and Roser 2016). The climate crisis is an all-enveloping one. Is climate justice scholarship coming too late and is it too complicated to tackle? How do we define the right to sustainable development, deal with currently untapped oil and gas reserves and the rights to them, and contend with the unequal distribution of wealth, and therefore the unequal potential to successfully adapt? No answers are on the horizon, and the multiple possibilities for change are confusing. If we consider the target to keep global average temperatures well below 2- degrees above pre-industrial levels, the mitigation of climate change is certainly already a failure (Rogelj et al. 2016). Despite some countries taking positive action, major global contributors have yet to sanction climate change agreements. At the end of March 2017, 141 of 197 member countries had ratified the Paris Accord that was adopted in 2015 (Marquardt 2017). The United Nations Framework Convention on Climate Change now puts this total at 168 (UNFCCC 2017). The United States, one 7 of the largest global CO2 producers, shows a recent and potentially extremely damaging trend in climate change policy with a proposed move to withdraw from the agreement (that said, its national policies may nevertheless still result in significant CO2 reductions). This limited success of the climate justice movement is well documented through negotiations at the UNFCCC COP meetings (see Goodman 2009 for a comprehensive history) as well as the continued steady increase in CO2 emissions (Rogelj et al. 2016). Climate justice presents what Goodman (2009) describes as a “proactive ideological agenda”, arguing, in some cases, for the need to curtail global growth rates in order to get runaway climate change under control. The questions of “responsibility” this raises (who does what and for whose benefit?) are contentious for two main reasons. First, continued inadequacy of action is increasing the potential for profound loss from climate impacts. Secondly, the increasing urgency of increasing emissions and the shifting locus of emissions has put pressure on countries already facing continued human development challenges (Klinsky 2015). The result is that few are taking responsibility on a large enough scale and that as an outcome adaptive resilience is becoming more critical. There is also a role for climate justice through legal cases. Abate (2016) describes the evolution of “atmospheric trust litigation” (ATL) in the United States (US), where ATL targets government entities and uses a “public trust” doctrine to challenge the government’s environmental stewardship responsibilities. The headline case in the US is “Kelsey Cascadia Rose Juliana et al. v. United States of America et al.” (2016), where a group of plaintiffs filed action against the US, the then President, Barack Obama and several executive agencies for their failure to phase out fossil fuel exploitation and avert environmental catastrophe. Recently, a 9-year old girl in India has filed a lawsuit against the Indian government for failing to take action on climate change. In the end, however, these discussions have neither achieved internal coherence on the purpose and form of the climate justice concept, nor achieved climate justice for any particular individuals or groups. Moreover, where positive examples do occur, they remain small scale and too disparate to face larger, immediate climate challenges and risks. Thus, this perspective argues that a bright future for fast, successful climate justice action is clouding over, and a more manageable framing of the challenge is required. 8 3 Energy justice: Three explanations for difference The continuation and exacerbation of many environmental failures illustrate that environmental and climate justice’s influence on decision-making is not effective enough. These failures have manifested as an increasing drive to find new, more focused, justice models, including those centered on energy issues. One result is the energy justice concept. Against the background of the environmental and climate justice literatures and sharing the same basic philosophy, energy justice aims ‘to provide all individuals, across all areas, with safe, affordable and sustainable energy’ (McCauley et al. 2013: 1). It does so with a framework informed by the environmental justice movement, including attention to the core tenets of distributional justice, procedural justice and justice as recognition. As identified by Sovacool and Dworkin (2015), this means that energy justice exists as a conceptual tool for uniting usually distinct justice concerns, an analytical tool for energy researchers seeking to understand how values are embedded in energy systems or resolve their neglect and, importantly, a decision-making tool that can help energy planners make more considered energy choices. It is necessary, at this stage, to acknowledge the scope of the concept. Evidently, the focus of environmental, climate and energy justice are different. Energy justice is concerned with energy systems, whereas climate justice and environmental justice extend beyond this, including both energy and non-energy sources of (in)justice. Whilst energy justice can, in some cases, capture non-energy impacts of projects such as local biodiversity impacts of new facilities (Goldthau and Sovacool 2012), this is undoubtedly on a smaller scale. Thus, the argument here is not that that energy justice is a superior alternative to environmental and climate justice, but instead, that it is a more strategically impactful one. Heffron and McCauley (2017: 663) state that “energy justice has the opportunity to avoid the pitfalls of environmental and climate justice scholarship and build a more solid and lasting foundation to its core meaning and value”. Further, Hernández (2016: 152) adds “as both a social and environmental issue, the intersection of energy and poverty presents untapped and timely possibilities for seeking justice and equity for those sacrificed and sacrificing vis-à-vis energy”. As it is specifically focused on energy issues, the energy justice frame possesses more traction (by several metrics) than the other approaches. It is a rapidly applicable 9 approach that can make more meaningful progress. By building the argument that energy justice is a tighter and more manageable justice framing that already comes with a clear, definable content, this article now asks why the resultant energy justice concept is better placed to do this. 3.1 “Bounding out” So far, this perspective has argued that one of the challenges and therefore potential failings of the environmental and climate justice movement is their breadth and lack of clearly defined content. The expanding scope of environmental justice displays a diffusion of meaning, and the concept is not readily applied globally. Climate justice considers the rights of every global individual both now and in the future, for both known and unforeseen injustices. In both cases the result is concepts too discursively diverse to tackle. Energy justice on the other hand, provides a means of focusing our efforts, with beneficial environmental and climate justice knock-ons. Bickerstaff et al. (2013: 2), identify that the energy justice concept “provides a way of ‘bounding’ and separating out energy concerns from the wider range of topics addressed within both environmental and climate justice campaigning”. Energy justice does this by focusing on each stage of the whole energy system, encompassing resource mining through to waste management and energy consumption (Jenkins et al. 2014, 2016). Thus, it provides a combination of the social science account of energy (policy) with its natural science counterpart (systems) (Jenkins et al. 2014; Jenkins et al. 2016). This is a positive. Such an approach makes justice and equity questions understandable to people by breaking them into smaller chunks. At each stage of the energy system – resource mining or energy production, for example – energy justice can engage with local, regional and national justice questions. If each systems component is combined with its fellows, energy justice then provides a global lens through which to assess our energy infrastructure. Whilst it is easy to turn ones eyes from insurmountable, diffuse challenges such as climate justice, an energy systems justice focus brings them closer and makes them more understandable. After that, the challenge becomes one of how we discuss, negotiate and implement what will likely be transnational energy justice claims. 10 3.2 Non-activist past Although only in passing, Heffron et al. (2015) and Jenkins et al. (2016) allude to the strength of energy justice because of its “non-activist past”, which gives it a clearly defined content and approach. While referenced in principle during the environmental justice movement by non-academics, and having emerged indirectly from decades of activist campaigning for environmental and climate justice, energy justice has principally been developed as an academic concept. Indeed, apart from one larger network in the United States (The Energy Justice Network: www.energyjustice.net) and more recently, the UK-based group Global Justice Now (www.globaljustice.org.uk), it is not a term that is frequently and explicitly used in activist discourse. This lack of an anti-establishment past opens the door for significant contributions to mainstream policy-making (Jenkins et al. 2016). Energy justice does so by overcoming what may be identified as the “naïve” approaches of environmental and climate justice – the presumption that society would support their ideals (Heffron and McCauley 2017) – focusing instead on embedding justice in policy. This “top-down” methodology offers the potential for a refined “practice” framework rather than disparate grassroots call, although it is also acknowledged that top-down approaches present their own pitfalls. This statement comes with the primary caveat that we must not negate the importance of activism entirely. It seems dangerous and somewhat technocratic to make the assumption that change takes place most effectively or entirely without it. Indeed, some may highlight circumstances and case studies when policy actors have only paid attention to questions justice when society and broader political processes have demanded it. Further, the idea of justice as recognition is particularly rooted in the idea of those who are discriminated against, de-valued and stigmatized—groups most easily identified as those making claims and those that must be revealed in policy-decision making. Nonetheless, the presence of a strong policy-oriented focus provides opportunity for more rapid, systematic implementation. In tandem, activist discourses retain the important role of assessing and directing energy policy (Jenkins et al. 2017b). 3.3 Methodological approach As documented by Jenkins et al. (2017a), a number of different approaches have emerged to exploring the social dimensions of energy supply and use (see Day 11 and Walker 2013; Day et al. 2016). Heffron et al. (2015) sought to quantify energy justice, for example. A recent special issue in the journal Energy Policy delivered papers oriented towards energy justice scholarship as normative, change-driven and policy focused, questioning which methods are needed for assessing the prevalence of injustices and remediating them. The papers within delivered approaches to energy justice that incorporated the novel, practice-oriented approaches of participatory energy budgeting (Capaccioli et al. 2017), odds ratio analysis (Liljenfeldt and Pettersson 2017), economizing energy justice through electricity equity tariffs (Palavicino and Ureta 2017) and policy assessments (Healy and Barry 2017), alongside qualitative approaches using semi-structured interviews (Jenkins et al. 2017b) – thus gaining insight from across the academic disciplines. The outcome is an early set of tools that can take energy justice past academic discourse to practical action. Using the framework of Miller et al. (2015), the result is an energy justice concept that can be implemented throughout (1) the practices and techniques through which potential energy futures are envisioned, analysed, modelled where required, and evaluated, (2) the forums and methods for deliberating, debating, and making energy choices, and (3) the institutions for fashioning, operating, and regulating new energy systems. Of course, the claim that energy justice can be implemented through a variety of techniques, methods and institutional arrangements has limitations. Due to the recent emergence of the concept, there is little empirical evidence of its traction on energy decision-making. Instead, this evaluation is made on the basis of the early existence of these approaches and their early application to date as well as political interest in the topic area. Additionally, it is necessary to recognise that even with ‘clean cut’, well-planned tools, energy justice is likely to encounter contested, tricky and political dilemmas and resistances. As above, this institutionalised view of decision-making processes and change is subject to assessment from both activist groups and wider society. Nonetheless, the presence of and growing literature around these approaches shows intention not just to discuss, but to apply justice concepts. 4 Conclusions This paper concludes, in part, that energy justice provides a lens through which we can begin to tackle related environmental and climate justice issues more 12 effectively. Outlining the contribution of energy justice beyond this broad claim, this paper has established that there are (at least) three distinguishing aspects of energy justice, which set the concept and movement apart from the environmental and climate justice scholarship and aid its potential success. Energy justice is (1) more targeted in its topic of concern and systems focus, and therefore has increased potential for policy uptake, (2) unlike environmental and climate justice, is not the outcome of anti-establishment social movements, and (3) is backed by a strong methodological tradition which shows a range of both academic and policy-relevant applications. Each of these factors increases its potential for widespread applications. By implication, there should be a continued and fervent increase in energy justice scholarship and application. Yet, recognising the limitations of this piece, we also require more reflexivity across the disciplines. Outside of the statements made in this paper, there have been few attempts to distinguish this scholarship and to understand and translate lessons across the concepts (Heffron and McCauley 2017). Whilst they are united by a concern for justice, they are segregated into academic silos. Thus, this paper closes with a call for both conceptual and empirical accounts of contrast and corroboration. The result, it is hoped, will be refined and practically applicable concepts ready to face the complex challenges of justice in an ever-changing environmental, energy and climate landscape. References Abate RS (2016) ‘Climate justice: case studies in global and regional governance challenges’, Faculty Books and Book Contributions 34: 543-570 Agyeman J (2014) ‘Global environmental justice or Le droit au monde?’, Geoforum 54: 236- 238 Agyeman J and Evans B (2004) ‘’Just Sustainability’: The emerging discourse of environmental justice in Britain?’, The Geographical Journal 170(2): 115-164 Alvial-Palavicino C and Ureta S (2017) ‘Economizing justice: Turning equity claims into lower energy tariffs in Chile’, Energy Policy 105: 642-647 Ambrey C, Byrne J, Matthews T, Davison A, Portanger C and Lo A (2017) ‘Cultivating climate justice: Green infrastructure and suburban disadvantage in Australia’, Applied Geography 89: 52-60 Bass R (1998) ‘Evaluating environmental justice under the national environmental policy act’, Environmental Impact Assessment Review 18(1): 83-92 Bevc CA, Brent K M and Picou SJ (2007) ‘Environmental justice and toxic exposure: towards a spatial model of physical health and psychological well-being’, Social Science Research 36(1): 48–67 13 Bickerstaff K and Agyeman J (2009) ‘Assembling Justice Spaces: The Scalar Politics of Environmental Justice in North-east England’, Antipode 41(4): 781-806 Bickerstaff K, Walker G and Bulkeley H (2013) ‘Energy justice in a changing climate: social equity and low-carbon energy, Zed Books, London Bulkeley H, Carmin J, Broto VC, Edwards GAS, and Fuller S (2013) ‘Climate justice and global cities: mapping the emerging discourses’, Global Environmental Change 23(5): 914-925 Capaccioli A, Poderi G, Bettega M and D’Andrea (2017) ‘Exploring participatory energy budgeting as a policy instrument to foster energy justice’, Energy Policy 107: 621-630 Chakraborty J (2017) ‘Focus on environmental justice: new directions in international research’, Environmental Research Letters 12(3): 1-4. Ciplet D. and Roberts JT (2017) Climate change and the transition to neoliberal environmental governance’, Global Environmental Change 46: 148-156 Cole LW and Foster SR (2000) ‘From the ground up: environmental racism and the rise of the environmental justice movement’, New York University Press Davies A (2006) ‘Environmental justice as subtext or omission: examining discourses of anti- incineration campaigns in Ireland’, Geoforum 37: 708-724 Day R and Walker G (2013) ‘Household energy vulnerability as “assemblage”’ in Bickerstaff K, Walker G, and Bulkeley H (2013) ‘Energy justice in a changing climate: social equity and low-carbon energy’, Zed Books, London (Chapter 1) Day R, Walker G and Simcock N (2016) ‘Conceptualising energy use and energy poverty using a capabilities framework’, Energy Policy 93: 255-264 Evans G and Phelan L (2016) ‘Transition to a post-carbon society: Linking environmental justice and just transitions’, Energy Policy 99: 329-339 Goldthau A and Sovacool KB (2012) ‘The Uniqueness of the Energy Security, Justice, and Governance Problem’, Energy Policy 41: 232-240 Goodman J (2009) ‘From Global Justice to Climate Justice? Justice Ecologism in an Era of Global Warming’, New Political Science 31(4): 499-514 Healy N and Barry J (2017) ‘Politicizing energy justice and energy systems transition: Fossil fuel divestment and a “just transition”’, Energy Policy 108: 451-459 Heffron R and McCauley D (2017) ‘The concept of energy justice across the disciplines’, Energy Policy 105: 658-667 Heffron RJ, McCauley D and Sovacool BK (2015) ‘Resolving society’s energy trilemma through the energy justice metric’, Energy Policy 87: 168-176 Hernánde D (2015) ‘Sacrifice along the energy continuum: A call for energy justice’, Environmental Justice 8(4): 151-156 Hess CEE and Ribeiro WC (2016) ‘Energy and environmental justice: Closing the gap’, Environmental Justice 9(5): 153-158 Heyward and Roser (Eds.) 2016 ‘Climate justice in a non-ideal world’, Oxford University Press Hofrichter R (Ed.) (1993) ‘Toxic Struggles: The Theory and Practice of Environmental Justice’, New Society, Philadelphia Holifield R, Porter M and Walker G (2009) ‘Introduction Spaces of Environmental Justice: Frameworks for Critical Engagement’, Antipode 41(4): 591-612 Jenkins K, McCauley D and Forman A (2017a) ‘Energy justice: a policy approach’, Energy Policy 105: 631-634 Jenkins K, McCauley D, and Warren CR (2017b) ‘Attributing responsibility for energy justice: A case study of the Hinkley Point Nuclear Complex’, Energy Policy 108: 836-843 14 Jenkins K, McCauley D, Heffron R J, Stephan H and Rehner R (2016) ‘Energy justice: A conceptual review’, Energy Research and Social Science 11: 174-182 Jenkins K, McCauley D, Heffron RJ and Stephan H (2014) 'Energy justice, a whole systems approach', Queen's Political Review 29(2): 74-87 Kelsey Cascadia Rose Juliana et al., (Plaintiffs) v. United States of America et al. (Defendants) (2016) Case 6:15-cv-01517-TC Document 83 Klinsky S (2015) ‘Transitional justice in the climate context? Discussion paper”, Climate Strategies: 1-11 Lahn B (2017) ‘In the light of equity and science: scientific expertise and climate justice after Paris’, International Environmental Agreements: Politics, Law and Economics 1-15. Liljenfeldt J and Pettersson O (2017) ‘Distributional justice in Swedish wind power development – An odds ration analysis of windmill localization and local residents’ socio-economic characteristics’, Energy Policy 105: 648-657 Liu F (2000) ‘Environmental Justice Analysis: Theories, Methods and Practice’, CRC Press Textbook Lyster R (2015) ‘Climate Justice and Disaster Law’. Cambridge University Press, Cambridge, UK Marquardt J (2017) ‘Conceptualizing power in multi-level climate governance’, Journal of Cleaner Production 154: 167-175 McCauley D, Heffron R, Stephan H and Jenkins K (2013) 'Advancing Energy Justice: The Triumvirate of Tenets', International Energy Law Review 32(3): 107-110 Miller CA, Richter J and Jason O’Leary (2015) ‘Socio-energy systems design: A policy framework for energy transitions’, Energy Research and Social Science 6: 29-40 Palmer C (2011) ‘Does Nature Matter? The Place of the Nonhuman in the Ethics of Climate Change. The Ethics of Global Climate Change’, Cambridge University Press, Cambridge, UK, 272–291 Pulido L (1996) ‘A critical review of the methodology of environmental racism research’, Antipode 28(2): 142-159 Reed GM and George C (2011) ‘Where in the world is environmental justice?’, Progress in Human Geography 35(6): 835-842 Rogelj J, den Elzen M, Hohne N, Fransen T, Fekete H, Winkler H, Schaeffer R, Sha F, Riahi K and Meinshausen M (2016) ‘Paris Agreement climate proposals need to boost to keep warming well below 2 °C’, Nature Perspectives 534: 631-639 Schlosberg D (1999) ‘Environmental justice and the new pluralism: the challenge of difference for Environmentalism’, Oxford University Press world’, UCT Press, South Africa Schlosberg D (2013) ‘Theorising Environmental Justice: The Expanding Sphere of a Discourse’, Environmental Politics 22(1): 37-55 Schlosberg D and Collins LB (2014) ‘From environmental to climate justice: climate change and the discourse of environmental justice’, WIREs Climate Change 5(3): 359-374 Schneider SH and Lane J (2006) ‘Dangers and thresholds in climate change and the implications for justice. Fairness in adaptation to climate change’. MIT Press, Cambridge, MA, 23–51 Simcock N and Mullen C (2016) ‘Energy demand for everyday mobility and domestic life: Exploring the justice implications’, Energy Research and Social Science 18: 1-6 Sovacool BK and Dworkin MH (2015) ‘Energy Justice: Conceptual Insights and 15 Practical Applications’, Applied Energy 142: 435-444 Sovacool BK, Burke M, Baker L, Kotikalapudi CK, and Wlokas H (2017) ‘New conceptual frameworks for energy justice”, Energy Policy 105: 677-691 Sovacool BK, Heffron RJ, McCauley D and Goldthau A (2016) ‘Energy decisions reframed as justice and ethical concerns’, Nature Energy 1: 1-6 Sze J and London JK (2008) ‘Environmental Justice at a Crossroads’, Sociology Compass 2(4): 1331-1354 UNFCCC (2017) ‘Paris Agreement – Status of Ratification’, United Nations Framework Convention of Climate Change. Available online. Accessed on 6th June 2017 http://unfccc.int/paris_agreement/items/9444.php Walker G (2009) ‘Beyond Distribution and Proximity: Exploring the Multiple Spatialities of Environmental Justice’, Antipode 41(4): 614-636 Walker G and Bulkeley H (2006) ‘Geographies of Environmental Justice’, Geoforum 37: 655-659 Williams WR (1999) ‘Environmental injustice in America and its politics of scale’, Political Geography 18: 49-73 Zhang Y, Chao Q, Zheng Q and Huang L (2017) ‘The withdrawal of the U.S. from the Paris Agreement and its impact on global climate change governance’, Advances in Climate Change Research. In Press 
work_beohta2ozzbtrnzj4vnsiqdvxy	----	Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 © Author(s) 2020. This work is distributed under the Creative Commons Attribution 4.0 License. su p p o rt e d b y S pecialE dition S O C IA L G E O G R A P H Y Between divine and social justice: emerging climate-justice narratives in Latin American socio-environmental struggles Celia Ruiz-de-Oña Plaza Centre for Multidisciplinary Research on Chiapas and the Southern Border (CIMSUR), National Autonomous University of Mexico (UNAM), San Cristóbal de Las Casas, Chiapas, Mexico Correspondence: Celia Ruiz-de-Oña Plaza (celiardo@unam.mx) Received: 30 December 2019 – Revised: 9 August 2020 – Accepted: 12 October 2020 – Published: 2 December 2020 Abstract. This exploratory study traces the emergence of climate justice claims linked to narratives of Latin American social movements for the defence of life and territory. I argue that in post-colonial settings, religious and historical injustices and socio-cultural factors act as constitutive elements of environmental and climate justice understandings which are grounded in territories immersed in neo-extractivism conflicts. Environmen- tal and climate justice conceptualizations have overlooked the religious fact present in many Latin American socio-environmental movements. As a result, the intertwined notions of divine justice and social justice are unacknowledged. To illustrate this claim, I examine socio-environmental and climate justice claims in a cross- border region between Guatemala and Chiapas. This region has a common ethnic background but divergent historical trajectories across the border. Diverse nuances and intensities adopted by environmental and climate justice practices and narratives on both sides of the border are examined. The case study reveals the importance of religion as a force for collective action and as a channel for the promotion of place-based notions of climate justice. The text calls for the examination of the religious factor, in its multiple expressions, in the theories of climate and environmental justice. 1 Introduction Socio-environmental struggles in Latin America are, in many cases, sustained by a formal religious faith or by adaptations of ancestral world views (Lorentzen and Salvador, 2006). However, as Kirmani (2008) has noted, the religious ele- ment is often omitted when studying social movements. The same is true of the environmental-justice literature. In con- trast, the link between religion and climate change – and more broadly, between religion and environmentalism – is increasingly addressed in the environmental-humanities field (Jenkins, 2017) as well as in media and religious studies (Bergmann, 2009; Gottlieb, 2010). Thus, the diverse litera- ture that does address the religious element confirms that, religion as a social institution plays a key role in instigat- ing collective action and issuing justice claims based upon a spiritual and sacred notion of nature (Haluza-DeLay, 2014). That literature also examines the different approaches taken by diverse faiths when confronting environmental devasta- tion and climate change. Among the elements problematized in that literature are religious dogma, structure, organiza- tion, and conceptions of deity and human nature (Gerten and Bergmann, 2011; Veldman et al., 2013). However, this body of research is not connected, at present, to the environmental and climate-justice conceptualizations. Meanwhile, in the social and political sphere, claims for climate justice are increasingly shaped by dogmas of the faiths that serve social movements as channels of dissemina- tion and sources of motivation. A notable example of those dogmas is liberation theology, of Catholic orientation (Bel- ing and Vanhulst, 2019). Recent research into the influence of such dogmas appears to have been triggered by the debate surrounding the papal encyclical Laudato si’ (published in 2015), which calls emphatically for stronger action against climate change. It prompts for a more integrative view of climate justice: one that moves away from carbon issues Published by Copernicus Publications for the Geographisch-Ethnographische Gesellschaft Zürich & Association Suisse de Géographie. 404 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America (Honty, 2011) and effectively links climate to cultural and symbolic factors (including those that derive from religion). However, local congregations of different faiths can vary markedly in how they view climate-justice issues and act upon them in the light of their respective religious declara- tions. For example, does their understanding of those decla- rations impel them to action, or not? What is the relevance of their faiths to the configuration of placed-based notions of environmental and climate justice? What different expres- sions do those notions take, and what are the determining factors for this differentiation? In what way are environmen- tal and climate issues being linked in specific territories? And what narratives are the people building? Exploring these questions can contribute to broadening and diversifying the notions of environmental and climate justice. To illustrate this, I examine socio-environmental and climate justice claims in a cross-border region between Guatemala and Chiapas: the southwestern segment of the 1000 km border strip, in the Mam ethnic territories bordering the Tacaná volcano area (see Fig. 1). This region has a com- mon ethnic background but divergent historical trajectories across the border. Religion occupies a central role as an orga- nizing institution in social life, as well as in resistance strug- gles. There are several religious faiths present on both sides of the border (see Fig. 1). However, not all of them lead to environmental anti-capitalist activism. Those involved with liberation theology are configuring demands for environmen- tal justice which are conceived as struggles for the defence of territory and for the right to political autonomy of indigenous peoples. Within this framework, a place-based notion of en- vironmental justice is constructed, one that is anchored in socio-environmental conflicts and rooted in cultural ways of understanding the territory. In recent times, mentions of climate change in connection with the impacts of neo-extractivism are increasingly com- mon in the narratives of socio-environmental movements op- erating in this cross-border region. The article looks at two socio-environmental movements: the Movement for the De- fence of Life and Territory (MODEVITE), on the Mexican side (Table 1), and the Maya Mam, Te Txe Chman council, on the Guatemalan side (Table 2). I hypothesize that the religious – primarily, but not exclu- sively, liberation theology – is driving the emergence of cli- mate justice narratives in these socio-environmental move- ments, hand in hand with the encyclical Laudato si’. From here, incipient claims of climate justice linked to territory, culture, and politics are arising. The case of this cross-border region illustrates this process. On both sides of the border, the churches spread and generate awareness of climate jus- tice. However, divergent historical trajectories and the un- equal presence and action of the nation state give rise to prac- tices and narratives of religion and climate change of varying intensity across the border. In this light, the objective of this paper is to highlight the need to update and complement the literature’s present no- tions of environmental and climate justice, specifically by including elements such as religious motifs as fundamen- tal elements of future justice conceptualizations. The role of those elements might be demonstrated by treating instances where they support and interact with historical and social- justice claims in territories with a colonial legacy (Álvarez and Coolsaet, 2018). I conclude by noting that this region’s contingent particularities provide an opportunity to broaden and enrich the conceptualizations found in the literature. 2 Social movements as socio-environmental struggles in Latin American contexts: the eco-territorial turn Throughout Latin America, protests are surging in response to the social and environmental impacts of infrastructure mega-projects, the expansion of non-traditional agricultural exports, and extractive industries such as mining or hydro- electricity. In this context, impacts of climate change are in- tensifying. They are also interacting with the effects of this wave of neo-extractivism. Quite often, the resulting social mobilizations become transnational via a diverse network of 70 organizations, ranging from traditional campesino unions and indigenous groups to urban environmentalists. As the need arises, organizations in that network create ad hoc fronts to support specific struggles. At the heart of the overarching social unrest lies an ac- tive and visceral rejection of the necropolitics and necroe- conomics of the current capitalism phase (Mbembe, 2003). Sometimes known collectively as the “politics of death”, this politico-economic subjugation is particularly intense in Latin America, where it is implemented by right-wing and left- wing governments alike (Botero and Galeano, 2017). Ac- cording to African scholar Achille Mbembe, the politics of death result in human rights violations (Bastos and de León, 2014; Navarro, 2013; Sosa and Camey-Huz, 2015), as well as ecological devastation and the exclusion of entire popula- tions that are considered superfluous to the production sys- tem (Mbembe, 2003). Social movements are responding to this context by recon- figuring themselves under the banner of socio-environmental struggles. These movements call for political autonomy, rad- ical democracy, the right to be consulted, and the right to de- cide the destinies of their own territories. A common narra- tive unifies socio-environmental struggles of many forms and tendencies under the banner of the defence of life and terri- tory. The critical axis of this narrative is constructed against hegemonic territorialities that neglect other forms of being, in favour of a new relationship between the non-human and the human world. That relationship includes the emergence of new ontologies of being more than human (de la Cadena, 2010; Escobar, 2014), along with other rationalities not based on the neoliberal rationale. Also included is the articulation of a range of actors across different scales of collective ac- Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America 405 Table 1. Characteristics of the Movement for the Defence of Life and Territory (MODEVITE): Chiapas. Origin Consolidated during the year 2011, MODEVITE is a coalition of groups that form a social movement based on the liberation theology of Pueblo Creyente (Believing People) of the diocese of San Cristóbal. Composition and location Members belong to three ethnic groups – Tseltal, Tsotsil, and Cho‘l peoples – in 13 municipalities in the Lacan- don Jungle and the highlands of Chiapas. MODEVITE has a strong presence among the Catholic Comunidades de Base Eclesiales (base communities of Catholic groups that are part of the parish churches) located at the southern border with Guatemala, among a population that in the past had indigenous ancestry. Subsequently, the Mexican state’s long-term process of acculturation caused the loss of indigenous identities. Context of emergence Communities invaded by gangs involved in illegal migration, prostitution, drug trafficking, and radical violence, particularly against women. Mode of operation and religious affiliation Catholic faith aligned with liberation theology in the preferential option for the poor. The parish churches affiliated with MODEVITE act as nodes of an extensive territorial network that operates through different working committees. The underlying and unifying task of the committees is to understand their shared reality through the study and reinterpretation of the Bible from an indigenous and subaltern perspective. Problems attended MODEVITE focuses on a mix of local social problems caused by the above-mentioned context of violence: the struggle against mining and transnational energy companies and the rejection of traditional political forces allied with paramilitary bodies. Justice claims MODEVITE focuses on issues such as violence, instability, ungovernability, and alcoholism, along with threats to the territories from mining, oil production, hydroelectric installations, and infrastructure mega-projects that damage sacred sites, “mother earth”, and the communities. Collective action Political action against political parties and corruption, and to promote community governments in each of the 11 municipalities as an exercise of their right to self-determination (MODEVITE, Final Communiqué of the Pilgrimage, 2016). MODEVITE seeks to establish a new political arena based on a radical democratic exercise. Human–nature relationships Action aimed at the recovery and rebuilding of a sense of belonging to nature and a collective unity based on a newly redefined indigenous identity. Source: prepared by the author based on dispatches, news, and posts from https://modevite.wordpress.com/2019/08/21/comunicados/ (last access: 15 August 2020) and https://sipaz.wordpress.com/2019/08/21/chiapas-megaperegrinacion-del-movimiento-en-defensa-de-la-vida-y-del-territorio-modevite-en-tuxtla-gutierrez/ (last access: 15 August 2020). tion. Regarding science, this new relationship would promote alternatives to the dominant narratives of scientificism. In summary, this relationship calls for a new language of val- orization that would both supersede the coloniality of knowl- edge (Mignolo and Escobar, 2013) and create new meanings that amplify the dimensions of life instead of reducing it to a narrow productivity rationale. That rationale emphasizes the politics of racialization, as well as the collective transgen- erational psychological and subjective marks of submission still operating in post-colonial contexts (Álvarez and Cool- saet, 2018). In territories where the colonial legacy left an im- print of a sense of subjugation, psychological processes can- not be detached from the structural: both are relevant to un- derstanding how socio-environmental struggles emerge and unfold. Coloniality anchors a racial ideology in the psycho- logical structure of the oppressed peoples who have been tar- gets of domination strategies in Latin America (Grosfoguel, 2011). Therefore, the transformation of objective conditions is, by itself, as insufficient as the transformation of only the subjective sphere (Álvarez and Coolsaet 2018). The innovative collective action described above has been labelled the “eco-territorial turn” – a term coined by a group of Latin American socio-environmental thinkers (Alimonda, 2011; Leff, 2014; Svampa, 2019). The territory is understood as the result of the interaction of its environmental, mate- rial, social, cultural, and symbolic dimensions. Of these, the spiritual/religious dimension is often highlighted in territo- ries with an indigenous presence (Paz-Salinas, 2017). These characteristics give specificity to the notion of environmental justice in Latin America. There is, however, a key element that is often overlooked in the literature on the defence of life and territories: the religious sentiment that underlies a significant portion of the struggles, especially in territories of predominant indigenous and campesino identity. 3 Theoretical and methodological remarks Because scholarship in the field of environmental justice was built predominantly upon studies of western environmen- tal conflicts, it falls short of grasping the Latin American specificities detailed in the previous section. For that reason, critical scholars call for decolonizing environmental-justice studies (Álvarez and Coolsaet, 2018). According to these thinkers, the uncritical use of western conceptualizations to https://doi.org/10.5194/gh-75-403-2020 Geogr. Helv., 75, 403–414, 2020 https://modevite.wordpress.com/2019/08/21/comunicados/ https://sipaz.wordpress.com/2019/08/21/chiapas-megaperegrinacion-del-movimiento-en-defensa-de-la-vida-y-del-territorio-modevite-en-tuxtla-gutierrez/ 406 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America Table 2. Characteristics of the Council of Maya Mam, Te Txe Chman, Guatemala, Department of San Marcos: Origin It was consolidated in 2009, as a sub-group of the regional organization the Council of the Mam People. Their principles of cohesion are based on the Mam ethnic identity. Context of emergence and religious adscription It was born in the context of the fight against the Marlin gold mine in San Miguel Ixtahuacán, and in other localities in the border Department of San Marcos. The fight was led by the Comunidades de Base (Base Communities) of liberation theology, led by Bishop Ramazzini. Structure and mode of operation It belongs to an extensive network of councils grouped by ethnicity and region, under the Major Council of Mayan Peoples, which operates in a decentralized manner at different levels (community, municipal, regional, and state levels). Along with its sister organizations, it has built an extensive and novel articulated political structure, with several branches that are under the umbrella body of the Council of Peoples of the West (CPO). Human–nature relationship It recovers and updates the ancestral leading figure of the indigenous authorities (considered to be the guardians of the common well-being) and other ancestral bodies of self-governance that according to the Council of Maya Mam have been in place since colonial times. Collective action Claims related to the right to self-determination or autonomy and its exercise over their territories. Promotion and practice of procedures for local consultation and collective decision. In 2005, in the Department of San Marcos, the Council of Maya Mam celebrated the first of 74 Consultas Comunitarias de Buena Fe (Community consultations of Good Faith) to register communities’ decisions on the presence of mining and other mega- projects. Justice claims Demand radical transformation of the Guatemalan state and the construction of a multinational state, not only in word, but also as de facto autonomy. These claims are expressed, for example, in the new constitution for the whole country, and in the council’s participation as a political party (Convergence) in two national elections. Political influence The Council of Peoples of the West has become one of the primary forms of political representation of indige- nous peoples. It has an agenda against the oppression of racist state politics and of questioning the forms of cap- ital accumulation implemented in the rural areas. It exhibits a strong capacity to act through legal and juridical procedures. It has developed a diverse and potent system of independent mass media, radio, web pages, jour- nals, and ceremonial celebration. However, it must confront a powerful counter-narrative disseminated through an equally potent mass media system, led by conservative and elite forces, that accuses human-rights defenders of being “terrorists”. Source: prepared by the author based on dispatches, news, and posts from https://www.prensacomunitaria.org/category/territorios/suroccidente/san-marcos/ (last access: 17 August 2020), https://cpo.org.gt/2019/?cat=43 (last access: 17 August 2020), https://cpo.org.gt/2019/?p=28 (last access: 17 August 2020), https://movimientom4.org/tag/consejo-del-pueblo-maya-cpo/ (last access: 17 August 2020), https://movimientom4.org/2016/10/declaracion-de-la-asamblea-nacional-del-consejo-del-pueblo-maya-cpo/ (last access: 17 August 2020) and http://consejodepueblosdeoccidente.blogspot.com/ (last access: 17 August 2020). analyse non-western environmental-justice conflicts can re- produce environmental injustices. In post-colonial settings, the environmental component has not been the decisive ar- gument for justice claims, despite its obvious relevance in structuring narratives of defence of life and territories. Previous studies, including recent environmental-justice scholarship conducted in Latin American scenarios (Car- ruthers, 2008; Hafner, 2018), have emphasized that environ- mental concerns cannot be detached from popular mobiliza- tions for social justice and equality (Carruthers, 2008:9, 12). Furthermore, recent scholars’ definitions of environmental justice have superseded earlier perspectives, which focused narrowly upon distributional aspects. The new definitions, which have become common in the literature, are more in- tegrative and inclusive and call for a more explicit conceptu- alization of how justice is understood (Pellow, 2017; Schlos- berg, 2009). To that end, Schlosberg argues for a broad, plu- ralist notion of justice that encompasses the human and the non-human world (Schlosberg, 2009:5). He also acknowl- edges the importance of having a multiplicity of justice no- tions that coexist at the individual and collective levels and which include not only distributional issues but also recogni- tion, participation, and functioning (Schlosberg, 2009:4). Hafner (2018) proposes an innovative framework, based on revealing local structures and elements of thought style, for analysing environmental justice in temporal and spatial contexts (Hafner, 2018:3). The proposed framework allows for the identification of local concerns and claims. Such an approach may enable researchers to understand which grounds local people invoke (or not) in their claims of justice. It can also reveal the importance of pre-conflict stages and why open conflict does or does not result (Hafner, 2018:2). Hafner’s emphasis on the epistemology of cognition, par- ticularly the visceral cognitive elements thereof, opens a new horizon of analysis: one that makes room for the in- terconnectedness of the rational and the emotional (Hafner, 2018:232). Hafner’s work is only one example of recent con- ceptual developments in environmental-justice theory that Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 https://www.prensacomunitaria.org/category/territorios/suroccidente/san-marcos/ https://cpo.org.gt/2019/?cat=43 https://cpo.org.gt/2019/?p=28 https://movimientom4.org/tag/consejo-del-pueblo-maya-cpo/ https://movimientom4.org/2016/10/declaracion-de-la-asamblea-nacional-del-consejo-del-pueblo-maya-cpo/ http://consejodepueblosdeoccidente.blogspot.com/ C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America 407 Figure 1. Location of the Maya Mam cross-border area in the southern section of the border of Chiapas and Guatemala. The map details the composition of the religious diversity of the municipalities on the Mexican side (there are no disaggregated data for the municipalities of San Marcos, Guatemala). Prepared by Yair Merlin. Source: INEGI, 2010. National Population and Housing Census 2010. National Institute of Statistics and Geography. Aguascalientes, Mexico. Consulted in July 2020. Available at https://www.inegi.org.mx/temas/religion/ (last access: 15 July 2020). would be particularly relevant when representing the com- plex Latin American socio-environmental struggles as a ma- joritarian expression of resistance. However, environmental- justice theory still needs to incorporate the religious dimen- sion that animates most of these struggles. In the work reported in the present article, I follow a nar- rative approach to analyse qualitative data under an interpre- tative paradigm. By using the term narrative, I follow Riess- man (2008) in meaning the elaboration of stories that func- tion as devices through which the actors position themselves and attribute specific ideas of “responsibility”, “guilt”, “vic- timization”, “urgency”, “disaster”, “the rational”, or “valid behaviours” in statements located temporarily and spatially. These statements can be oral, written, or graphic about a vital experience or conjunctural event (Arnold, 2018). During the personal or collective process of constructing the narrative, identity elements of a historical nature come into play (Tam- boukou, 2013) to promote mobilization for social change, or to invite audiences to enter the perspective of the story- teller (Elliott, 2005). Analytically, I follow Riessman in “[ex- amining] primarily what content a narrative communicates, rather than how a narrative is constructed [. . .] by examin- ing how stories of resistance generate collective action in so- cial movements” (Riessman, 2008:73). The narrative analy- sis that I present was based upon secondary sources obtained from dispatches, notices, political manifests, and alternative- press news that served communicative and political purposes. I also interviewed the Guatemala coordinator of the Global Catholic Climate Movement. The narrative threads identified in those documents and interviews allowed me to access the socio-environmental movements’ notions of environmental justice and to identify emergent climate-justice claims. Also included are observations about the transborder region of the Tacaná volcano during the municipal and presidential elec- toral campaign in the Guatemala municipality of Sibinal, in the Department of San Marcos. 4 Climate justice and the religion factor in socio-environmental struggles As in the case of environmental-justice conceptions, dom- inant conceptualizations of climate justice do not contem- https://doi.org/10.5194/gh-75-403-2020 Geogr. Helv., 75, 403–414, 2020 https://www.inegi.org.mx/temas/religion/ 408 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America plate the effect of religious feelings in calls for climate jus- tice. Instead, research has employed a philosophical and eth- ical perspective that focuses upon the just distribution of burdens and entitlements and upon the differentiation of re- sponsibilities in the realm of adaptation and mitigation (see Harris, 2019). In the international political arena, the United Nations Framework Convention on Climate Change (UN- FCCC) enunciated the principle of “shared but differentiated responsibilities”. That principle established the need to cre- ate specific funds to finance the adaptation efforts of devel- oping countries (Honty, 2011). Historical emissions of devel- oped countries have been at the centre of a polemic debate between developed and developing countries. Honty rightly points to the incontrovertible fact that climate change will take place in an unequal world. Present inequalities will, on the whole, grow as the impacts of climate change increase (Honty, 2011:19). In Latin America, calls for justice as recognition of his- torical responsibility, and not only as a fair distribution of burdens and costs, can be identified in arguments made by countries such as Bolivia. On this matter, Forsyth (2014) points out the need to reassess justice frameworks that are based upon distribution approaches. That reassessment would allow for a wider range of solutions. He also advocates Sen’s approach to justice as a means of moving beyond di- chotomies based upon distributional and procedural justice, and thereby initiating a more open and inclusive debate about risks and solutions. In general, the limited achievements of international cli- mate negotiations have left researchers with a sense of failure and mistrust. As a result, researchers now pay more attention to other sources of motivation for action. Among these, re- ligion seems to be gaining unusual strength in the realm of climate justice. 4.1 The religious and climatic elements in MODEVITE and the Council of Maya Mam narratives of struggle In liberation theology, and specifically in the encyclical Laudato si’, climate justice is considered an ethical imper- ative. The encyclical points directly to the need to base inter- national mitigation policies upon principles of climate justice (Kerber, 2010). It reacts against the mercantilist and instru- mental rationality of the present policies, from which the hu- man and ethical dimension is absent. Along somewhat sim- ilar lines, recent developments in Latin American liberation theology (see Boff, 2011) incorporate a renewed theology of creation, along with the Latin American ecofeminist perspec- tive and the development of an indigenous theology (Kerber, 2010). Laudato si’ integrates these developments to build a critique that attacks the pillars of the current economic system. The encyclical’s goal of radically transforming the paradigm of modern civilization entails a reconstruction of the human–nature link. The subtitle of the encyclical (“On Care for Our Common Home”) synthesizes the integration and belonging of the human in nature. The following in- sights about the encyclical’s bases and goals are offered by Efraín Bámaka, who is a certified animador (local promoter) of Laudato si’ and coordinator of the Guatemala chapter of the Catholic Climate Movement, as well as a researcher at the Universidad de San Carlos de Guatemala: (. . .) in paragraph 51 it is mentioned that “inequity does not only affect individuals but entire coun- tries” there it speaks and forces us to think about ethics of international relations, because there is a real ecological debt, and here what I want to mention (. . .) is particularly between the north and the south, related to trade imbalances, with con- sequences in the ecological field as well as the disproportionate use of natural resources histori- cally carried out by some countries. And then it comes to talk about exports, that is, it is a document that from a socio-political analysis, talks about and even goes beyond climate justice, which it does mention: we need a cultural revolution (EBL, Hue- huetenango, 30 June 2020). But how do social movements incorporate these tenets into the daily struggle for environmental and climate jus- tice in unique territories? In the borderlands of Chiapas and Guatemala, two key socio-environmental movements have been leading the fight for environmental justice in the con- text of confrontations with international mining exploitation. The first movement is the Council of Maya Mam Te Txe Chman, an ancestral governing body of the Maya Mam peo- ple of the San Marcos department, Guatemala (see Table 2). The second is the Movement for the Defence of Life and Territory (MODEVITE), a coalition of catholic indigenous organizations with a presence in some territories of Chiapas. Both movements draw upon liberation theology but incor- porate climate justice in a differentiated manner and with variable intensity throughout the borderlands. Those lands, which are part of the ancestral territories of the Mam Mayan ethnic group, extend over a portion of the cross-border area between Chiapas and Guatemala. The Tacaná volcano area, which straddles the border, is significant because of the con- trasting degrees of environmental conflict and struggle expe- rienced on the two sides. The shared colonial past of this region includes marginal- ization, exclusion, violence, and the imposition of the Catholic religion. Even today, half of the region’s inhabitants are professing Catholics. (See Fig. 1; no disaggregated data are available for Guatemala.) However, religious diversity is now evident in this region, as well as throughout Guatemala and Chiapas (which is Mexico’s most religiously diverse state). Protestant denominations of quite varied creeds have a significant presence, with evangelical and neo-Pentecostal religions predominating. The church of liberation theology is a prominent feature of the religious profile throughout this transboundary region. Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America 409 Both the Council of Maya Mam and MODEVITE (see Ta- bles 1 and 2 for descriptions) are community-oriented move- ments that use religion as a means of community develop- ment “to improve the well-being of a community, often in the face of a repressive government” (Kirmani, 2008:29). Kirmani remarks that although religious feelings are an important factor in mobilizing collective action (Kirmani, 2008:33), the acts of resistance and improvement of well- being are varied and are not restricted to the celebration of the faiths. A particularly relevant example is the improve- ment of agricultural systems from an agroecological perspec- tive. Nevertheless, for MODEVITE as well as the Council of Maya Mam every action, resistance, and confrontation rests upon a religious sentiment. MODEVITE provided a clear ex- ample of this through the communiqué that it read to the pub- lic during MODEVITE’s pilgrimage of 20 August 2019. In that communiqué, the sacred dimension of both the protest and its content is manifest. The communiqué alludes to the belonging of the Believing People to mother earth as the source of the people’s primary nourishment. The commu- niqué also invokes a timeless dimension that lives in the memory of the ancestors. The circular temporality expressed here is one of life and death in the continuous rebirth of na- ture. In contrast, the survival of capitalist production is con- ditioned by the constant growth conceived from a linear tem- porality. As the communiqué explained, we have gone out again to walk and to speak our word; we are of the original peoples with a face and a heart of our own, born of Mother Earth and corn, with a spiritual relationship woven into life and ter- ritory. In this way we remember the memory of our grandmothers and grandfathers: we are earth, we are fire, we are air, we are defenders and caretakers of Mother Earth (https://modevite.wordpress.com/ 2019/08/21/comunicados/, last access: 29 Decem- ber 2019). The religious adherence of the Mexican movement MOD- EVITE is exclusively to the Catholic faith based on liber- ation theology. In Guatemala, the Council of Maya Mam, too, emerged from the church of liberation theology. How- ever, the council now gives greater weight to the Mam ethnic identity than to religious affiliation. As a result, the coun- cil has greater religious diversity than MODEVITE. Some council members have no defined religion. Nevertheless, the council’s identification with the church of liberation theology remains strong, and some of the council’s most emblematic leaders are also community leaders in the ecclesial base com- munities (EBL, coordinator of the Guatemala Chapter of the Catholic Climate Movement and animator Laudato si’, Hue- huetenango, Guatemala, 30 June 2020). Ancient Maya Mam beliefs are an additional religious element in the council; the recovery and re-creation of those beliefs plays a vital role in the upper ranks of the council’s intellectuals (Consejo del Pueblo Maya, 2019:6–7). In both MODEVITE and the Maya Mam council, women play a vital and decisive role as drivers of collective ac- tion. Strong organizational ties based on ethnic and reli- gious adscription give way to an innovative mechanism of self-governance and self-representation in both movements. Each has a communal structure of authorities: “Consultas de Buena Fe” in the case of the council and the constitution of “plurinational community governmental bodies” in MODE- VITE (see Tables 1 and 2). The political strength of these structures has shown itself in socio-environmental struggles against mega-projects. 4.2 Climate-justice narratives emerging in MODEVITE and the Council of Maya Mam The two movements differ in the degrees to which they refer to the climate justice that was proclaimed in the encyclical Laudato si’. MODEVITE makes no specific mention of cli- mate change in the pronouncements and communiqués that it has issued in the context of its struggle. In contrast, the Council of Maya Mam, in association with its sister organi- zations, is gradually inserting allusions to climate change in its manifests and public statements. (See for example Prensa Comunitaria Km. 169.) The council’s sister organizations in- clude councils of various ethnic identities, as well as a range of social organizations fighting for the defence of life and ter- ritory. A prominent example is the peasant workers’ move- ment of San Marcos. References to climate change appear in the council’s communiqués that address the violent real- ity that confronts its members. The communiqués denounce extractive enterprises; condemn the mining companies’ ex- pulsions, land-grabbing, and environmental damage; demand the release of political prisoners; and seek justice for victims of murders and human-rights violations. The council also referred to climate change, albeit indi- rectly, when it joined several indigenous organizations in supporting the Food Sovereignty Network’s communiqué en- titled “Climate Change and Mega-crops also threaten our food sovereignty and the human right to food” (issued 21 September 2015). The communiqué’s narrative reveals how climate change, in the context of the struggle of socio- environmental movements in Guatemala, is linked to the ex- tractive industry and its impacts on social and environmen- tal issues. The narrative also relates the intensity of systemic violence in the border territories of San Marcos. Going far beyond the carbon accounting that is so prominent in inter- national politics, the communiqué alludes to the effects of climate change upon human rights and vital needs like food sovereignty. In short, the tone of the narrative that the com- muniqué constructs around the impacts of climate change is markedly condemnatory – a striking contrast to the logic by which international climate-mitigation policies operate. Moreover, the condemnation is accompanied by a demand for social justice, for respecting human rights, and for the https://doi.org/10.5194/gh-75-403-2020 Geogr. Helv., 75, 403–414, 2020 https://modevite.wordpress.com/2019/08/21/comunicados/ https://modevite.wordpress.com/2019/08/21/comunicados/ 410 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America protection of nature (which is always referred to as mother earth). The Council of Maya Mam works in partnership with organizations such as the nongovernmental organization (NGO) “Commission for Peace and Ecology” (in Spanish, the COPAE). COPAE is dedicated to conducting research on local realities, to training, and to dissemination of knowledge about sustainability, justice, environment, and ecology. CO- PAE’s outreach is a source of information for communiqués and public proclamations. Significantly, for our purposes, COPAE is also a source of information for the teachings car- ried out in ecclesial communities to which many grassroots members of the Council of Maya Mam belong. From the lo- cal parishes in alliance with COPAE, a path emerges for lo- cal understandings of the impacts of climate change and of how the configuration of those impacts is a question of jus- tice in terms of a north–south debt. These understandings are always balanced with the local communities’ most pressing matters: the idea was that we have elements for the strug- gle that emerged from the investigation, so per- haps that’s why you begin to notice certain words, certain discourses that are more formed or that epistemically go beyond mere experience and that even have in their language some epistemic no- tion, because they already speak to you about these questions as well (EBL, Huehuetenango, 30 June 2020). The channelling of Laudato si’ climate-justice proposals to the ecclesial grassroots communities is progressing gradu- ally, and according to the increasingly felt effects of climate change: (. . .) as a result of this question of the encyclical, the discourse on climate justice is present, but I feel that it is still a great absence, why? Look when you go to the border to these territories of San Marcos, because the people have been affected, the people talk to you about climate justice, even generational justice, but if you come to the central plateau, cli- mate change and the environment does not mean anything to the people, because they feel that it does not affect them; instead, the people of San Marcos are affected because the mine was there, where the gold was taken from their land, where the water was stolen from their land, so, those peo- ple have already taken a stand on that discourse (EBL, Huehuetenango, 30 June 2020). 4.3 Two countries, one ethnic origin: the ancestral territory of the Maya Mam between Chiapas (Mexico) and San Marcos (Guatemala) The region of study, which was once an ecological and cul- tural unity, is now divided by the international border that slices through the very peak of the Tacaná volcano. Differ- ent fates awaited the Maya Mam people who found them- selves living on opposite sides of this line, which was drawn through their ancestral highland territory (Toledo Pineda and Coraza de los Santos, 2019). The region provides contrast- ing scenarios concerning the presence and intensity of socio- environmental struggles. The contrasts reveal how specific types of state regimes shape socio-environmental struggles in a particularized manner. During the late 19th century, Mam people on both sides of the border were forced to work as peons in the system of fincas – coffee plantations owned by European and North American nationals. Later, the Mexican revolution and ensu- ing agrarian reform enabled descendants of Maya Mam pe- ons in Mexico to hold lands communally, as ejidos. Land for that purpose was granted in the 1930s, during the presidency of Lázaro Cárdenas (Hernández Castillo, 2012). This region was privileged during Mexico’s agrarian reform: most of the privately owned coffee lands were transferred to groups of landless peasants, who were primarily ethnic Mam people of Guatemalan nationality. In the Mexican part of the region of study, the long shadow of the revolution – agrarian reform, plus a state where paternalism still thrives – has produced state–campesino relationships quite different than in neigh- bouring Guatemala. Although the defence of life and territories motto is pro- claimed widely in communities on both sides of the border, the communities’ experiences with extractive industries in this region are quite different across the border. San Mar- cos in Guatemala is an emblematic territory in the strug- gle against mining companies – and especially against the Marlin gold mine. The struggle is led by prominent mem- bers of the liberation theology church, such as Bishop Ra- mazzini. In contrast, the presence of mining companies has not been so intense in the Mexican part of the Tacaná. Nev- ertheless, small conflicts have occurred, especially within the Tacaná Biosphere Reserve, where various interests have prospected for ore deposits and attempted to install a micro- hydroelectric plant. These conflicts caused an explosion of support for MODEVITE in 2015–2016 (field observations and informal conversations with communal authorities of the Chespal community in Tacaná, September 2016, April 2019). More generally, communities on the Mexican side work hand in hand with the ecclesial base communities and adhere to the justice claims of MODEVITE to fight against mega- infrastructure and energy projects. On the Guatemala side of the Tacaná volcano region, in the Department of San Marcos, the Council of Maya Mam has a strong presence throughout several municipalities. Socio- environmental struggles occur within an exacerbated context of repression and lack of democratic guarantees (Consejo del Pueblo Maya, 2014, 2019; Rivera, 2016). The oligarchi- cal state has never acceded to a redistribution of power and wealth, nor did it vanish after the 36-year civil war. Even now, in post-conflict times, the Guatemalan state remains Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America 411 Figure 2. MODEVITE placard on the southern border of Chia- pas, rejecting mining in the area: “No to mining, yes to life. We want beans and corn. Get the miners out of the country”. Ecclesial communities of the base. Municipality of Chicomuselo, border with Guatemala, 30 July 2017. Photograph taken by the author. a racialized discriminatory regime, as is made evident by the highly unequal distribution of land (Granovsky-Larsen, 2019). In these struggles, representatives of the church of the theology of liberation were vital to shaping the battle and or- ganizing the people via grassroots communities. As a result, the communities’ relations with the state have configured a different political arena for socio-environmental activism. A critical feature of the political context is the co-opting of movements by a network of historical and newly emerging economic elites of the state apparatus. In addition, illegal violence is used against human-rights defenders, independent judges, and anybody opposing the elites’ power (Aguilar-Støen and Bull, 2016). Food secu- rity and sovereignty are seriously jeopardized by extreme poverty, the highly uneven distribution of land, and the on- going 4-year drought in key agricultural areas of the country (Orgaz, 2019). In this context, the Council of Maya Mam struggles not only for the defence of water, land, and terri- tories, but also to build a new state: one that is “inclusive of all of the Guatemalan peoples, independently of ethnicity, re- ligion or political ideology, a state that acknowledges unity in the diversity” (25 March 2019, Meeting of the Conver- gence Party, the new political party emerging from the Con- sejo Mayor Mam and the Consejo de Pueblos de Occidente, Sibinal, Department of San Marcos). Returning to the Mexican side of the region, we see an intertwining of religious and patriotic sentiments in MOD- EVITE’s protest marches, which MODEVITE refers to as “pilgrimages” (a religious term). Patriotic symbols of Mex- ican iconography like the national flag fly over the marches alongside representations of the Virgin of Guadalupe. Other religious symbols appear as well, and some of the priests who participate wear indigenous motifs on their clothes. MODE- VITE questions the Mexican state but still considers it to be a reference point and a valid interlocutor. Even on MODE- VITE’s website, praise for Jesus is combined with that for Emiliano Zapata, an iconic figure of the Mexican revolution and the neo-Zapatism: “Viva Jesús! Viva Zapata!”. In stark contrast, the Council of Maya Mam sees nothing to exalt in Guatemala’s national past. The council identifies the Guatemalan state clearly as the critical source of oppres- sion against the Mam people and the main party responsible for the devastation of their territory. Thus, the transformation of the Guatemalan state in its historical and current confor- mation is the ultimate objective of the council’s struggle: there is a document called the Political Constitu- tion of the Mam People, and even I worked on that constitution. (. . .) we received a lot of criticism be- cause how is someone going to make a constitu- tion? Because there is only one constitution, that of the country. But no, they come and work and say this is our constitution. It’s a document from Octo- ber 2018. In the first chapter, first section, it says, “We stand at the side of all the struggles that seek a radical reorganization of the State of Guatemala” (. . .); when they refer to the State of Guatemala it is in small letters, and from there it is an interest- ing question, both in writing and in speech. In that sense, the Mam people see the State as their op- pressor (EBL, Huehuetenango, 30 June 2020). 5 Discussion and conclusions In local territories crisscrossed and lacerated by neo- extractivism, the religious feeling emanating from liberation theology provides a sense of strength, union, and transcen- dence that counterbalances the power wielded by the state in coalition with mining and agro-industrial empires. This is especially true for San Marcos, Guatemala, where the state still refuses to recognize the most basic rights of the majority of its population. Instead, the state’s policies of marginaliz- ing and slowly exterminating ethnic identities continue un- interrupted. Therefore, as indicated by the drafting of the above-mentioned political constitution of the Mam people, the Council of Maya Mam aspires to a fundamental transfor- mation of the country. In the new Guatemala, the Mam would have rights as a nation within the framework of a plurina- tional state governed by the rule of law. Meanwhile, the church of the poor of liberation theology and the narrative of “The Care of the Common House” are playing a leading role in defining a concept of climate jus- tice that matches the interests of local populations. Libera- tion theology provides a sense of justice anchored not only in the here and now, but also in the recognition of a circu- lar temporality that binds together past, present, and future generations. These aspects of liberation theology are evident https://doi.org/10.5194/gh-75-403-2020 Geogr. Helv., 75, 403–414, 2020 412 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America in efforts by the church of the poor of liberation theology to build and disseminate claims to social, environmental, and climate justice. The church incorporates Indian theology and a blend of ancestral knowledge and scientific research, while the church’s reticular organization reaches out to remote vil- lages and municipal capitals through parishes and their grass- roots groups. Recent international research on environmental justice has evolved towards understanding the integration of sensory, emotional, and instrumental motivations. However, the expe- rience of socio-environmental struggles in Latin America re- veals the need to pay attention to the religious dimension that is present in notions of environmental and climate justice. In the context of those struggles, the idea of environmental and climate justice goes beyond the dimensions of participation, distribution, functioning, and recognition: it rests on a sense of historical grievance and is supported by intense religious feeling. The intensities of these historical and religious sentiments are different on the two sides of the cross-border region of study because of divergent relations – past and present – with the respective figures of the state. The notion of climate justice has not been fully developed within the local bases of MODEVITE or in the Council of Maya Mam. However, that notion is increasingly incorporated in the council’s dec- larations, communiqués, news, and proclamations of strug- gle. From these communiqués, a notion of multi-scale cli- mate crisis emerges. On the one hand, the crisis is under- stood on a global scale as affecting the entire human broth- erhood as part of the planet, along with all our fellow in- habitants of the “common house”. At the same time, the crisis is local, with concrete and differential expressions in the territories affected by neo-extractivism and the impacts of climate change. This idea of climate justice cannot be conceived in isolation from the demands for social justice, which invoke the long history of grievances and violations of human rights against indigenous communities. Hence, the notions of environmental and climate justice cannot be un- derstood in a standardized way: they emerge from the ex- perience of struggle in territories crossed by a complex set of historical and present causes. A fundamental dimension in new environmental-justice reformulations is the realiza- tion that Latin American socio-environmental struggles are, in many cases, of an ontological nature (Blaser, 2009). That is, they are a fight both for life itself and to give life a new and deeper definition. These new formulations can serve very different contexts, in late modern societies as well as in loca- tions with a colonial past. How might definitions of environmental justice incorpo- rate the ontological nature of environmental struggles along with the intertwined structural and subjective dimensions? The environmental-justice field must explicitly consider the socially constructed nature of “environment” and “justice”. The meanings of these notions differ among cultures and political contexts because those meanings are mediated for the direct emotional, symbolic, and social experience and attachment to the territories from which they emerge (Nar- chi, 2015). Thus, the meaning of environment cannot be re- stricted to the narrow concept of a biophysical entity de- tached from the social sphere. Accordingly, a variety of ra- tionalities give rise to notions of justice and nature that are distinct, in different degrees, from westernized perspectives (Álvarez and Coolsaet 2018). The Laudato si’ aligns well with the suggested broaden- ings of perspectives and meanings: it advocates for integrat- ing the reformulation of the current techno-science of cli- mate policies with cordial, emotional, and visceral rationality (Boff, 2019:6). Thus, the encyclical is also in tune with Mbe- mbe’s critique and with Hafner’s proposal about the inclusion of the sensorial in the conceptualizations of environmental justice. The importance of such proposals is made clear by the concrete experiences (e.g. those presented here) of social movements that have strong components of indigenous and religious identity. Within the narratives of these movements, elements of modern and traditional combinations of rational- ities can configure environmental- and climate-justice claims that depart from idealized pictures of the noble savage. A further example of combining modern and traditional rationalities is seen in the indigenous movements’ struggles for the right to constitute their own authorities (rather than have them imposed by the state). That right, which plays a vital role in the Latin American context, is based on ances- tral imaginaries. However, the movements’ purpose in strug- gling for that right is to be able to redefine the desired type of modernity in their own terms. Thus, the movements are spaces for decision and collective action that constitute true references for the enunciation of place-based notions of en- vironmental and climate justice. Social and environmental climatic justice is strongly influenced here by the reflective and transforming practice of liberation theology (thinking– judging–acting). Within that practice, social movements find a source of legitimacy: justice with a transcendental dimen- sion, instead of one that is disjointed from social and envi- ronmental justice in the here and now. The multiplicity that is present in that dimension needs to be part of environmental- justice definitions. Being aware of that range of different meanings opens the possibility of a real dialogue. On the con- trary, taken-for-granted conversations conducted under the belief or supposition of a common understanding of uncriti- cally assumed concepts will sap the power and creativity that we need for a battle in which we, as humanity, have no way out. Data availability. The data from this research are largely of an ethnographic nature and are not publicly available for the following reasons: the field observations, informal conversations, and ethno- graphic records were entered into a largely undigitized field diary; they are part of broader ongoing research that addresses other is- sues, particularly related to coffee, and were recorded following Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America 413 ethical considerations of privacy and anonymity when requested; and the transcripts of interviews conducted and their recordings were made with the consent of the individuals interviewed to main- tain their privacy and in some cases may contain sensitive informa- tion that the interviewee requested not to be disclosed. For inter- views with the name of the interviewee visible, the transcript may be shared as long as permission is sought from both the intervie- wee and the researcher. Secondary data from websites and statistical censuses are of a public nature and accessible to anyone. Supplement. The supplement related to this article is available online at: https://doi.org/10.5194/gh-75-403-2020-supplement. Competing interests. The author declares that there is no con- flict of interest. Acknowledgements. My deepest thanks to the people of Sibi- nal, San Marcos, and Unión Juárez for sharing their lives and giv- ing us shelter and for their friendship. Special thanks to Efraín Bá- maca López, for sharing his knowledge, and to Yair Merlín Uribe for the realization of the religious distribution map and for the reli- gious tabulations. I am also grateful for the comments made by the three anonymous reviewers. Review statement. This paper was edited by Jonas Hein and re- viewed by three anonymous referees. References Aguilar-Støen, M. and Bull, B.: Protestas contra minería en Guatemala, Anuario de Estudios Centroamericanos, 42, 15–44, 2016. Alimonda, H. (Ed.): La naturaleza colonizada: ecología política y minería en América Latina, 1. ed., Ediciones CICCUS: CLACSO, Buenos Aires, 2011. Álvarez, L. and Coolsaet, B.: Decolonising Environ- mental Justice Studies: A Latin American Per- spective, Capitalism Nature Socialism, 31, 50–69, https://doi.org/10.1080/10455752.2018.1558272, 2018. Arnold, A.: Climate Change and Storytelling: Narratives and Cul- tural Meaning in Environmental Communication, Springer Na- ture, Switzerland, 2018. Bastos, S. and de León, Q.: Dinámicas de despojo y resistencia en Guatemala. Comunidades, Estado y empresas, Colibrí Zurdo, Serviprensa, Guatemala, C.A., 2014. Beling, A. E. and Vanhulst, J.: Desarrollo non sancto: la religión como actor emergente en el debate global sobre el futuro del planeta, 400 Siglo XXI Editores, Ciudad de México, Mexico, 2019. Bergmann, S.: Climate Change Changes Religion: Space, Spirit, Ritual, Technology – through a Theological Lens, Stu- dia Theologica, Nordic Journal of Theology, 63, 98–118, https://doi.org/10.1080/00393380903345057, 2009. Blaser, M.: Political ontology: Cultural Studies without “cultures”?, Cult. Stud., 23, 873896, https://doi.org/10.1080/09502380903208023, 2009. Boff, L.: Lo esencial del Evangelio, lo nuevo de la ecoteología: qué aporta el cristianismo a la humanidad en esta fase planetaria, Nueva Utopía, Madrid, Spain, 2011. Boff, L.: Prólogo, in Desarrollo Non Sancto. La religión como actor emergente en el debate global sobre el futuro del planeta, edited by: Beiling, A. E. and Vanhulst, J., Siglo XXI Editores, Ciudad de México, Mexico, 7–12, 2019. Botero, D. I. R. and Galeano, C. A. P.: Territories in Dis- pute: Tensions between “Extractivism”, Ethnic Rights, Local Governments and the 410 Environment in Bolivia, Colombia, Ecuador and Peru, in Alternative Pathways to Sustainable De- velopment: Lessons from Latin America, edited by: Carbon- nier, G., Campodónico, H., and Tezanos Vázquez, S., 269–290, Brill | Nijhoff, Leiden, the Netherlands, Boston, Massachusetts, USA, https://doi.org/10.1163/9789004351677_013, 2017. de la Cadena, M.: Indigenous Cosmopolitics in the An- des: cosmopolitics in the Andes: Conceptual Reflec- tions beyond “Politics”, Cult. Anthropol., 25, 334–370, https://doi.org/10.1111/j.1548-1360.2010.01061.x, 2010. Carruthers, D. V.: Popular environmentalism and social justice in Latin America., in Environmental justice in Latin America: prob- lems, promise, and practice, edited by: Carruthers, D. V., MIT Press, Cambridge, Massachusetts, USA, 2008. Consejo del Pueblo Maya: Un nuevo estado para Guatemala., Proyecto Política, CPO, Guatemala, available at: https://drive.google.com/file/d/ 0B31fnGLtBsbMLWR1ZkdrX3A0MWc/view?fbclid= IwAR1r3rebSoTp28Yn-5p1WAgS8o1n97Wzbrk0cOMmZr_ _MEpMmmhvbPbyuPU (last access: 2 April 2019), 2014. Consejo del Pueblo Maya: Articulación política del Pueblo Maya., CPO, Guatemala, available at: https://cpo.org.gt/2019/ conocenos/, last access: 12 April 2019. Elliott, J.: Using Narrative in Social Research: Qualitative and Quantitative Approaches, SAGE Publications Ltd., London, UK, 2005. Escobar, A.: Sentipensar-con-la-tierra. Nuevas lecturas sobre de- sarrollo, territorio y diferencia, Ediciones UNAULA, Medellín, Colombia, 184 pp., 2014. Forsyth, T.: Climate justice is not just ice, Geoforum, 54, 230–232, https://doi.org/10.1016/j.geoforum.2012.12.008, 2014. Gerten, D. and Bergmann, S. (Eds.): Religion in Environmental and Climate Change: Suffering, Values, Lifestyles, Continuum Inter- national Publishing Group, London, UK, New York, NY, USA, 2011. Gottlieb, R. S. (Ed.): The Oxford Handbook of Religion and Ecol- ogy, Oxford University Press, Oxford, USA, 2010. Granovsky-Larsen, S.: Dealing with Peace. The Guatemalan Campesino Movement and Post-Conflict Neoliberal State, Uni- versity of Toronto Press, Toronto Buffalo, London, Canada, 2019. Grosfoguel, R.: La descolonización del conocimiento: diálogo crítico entre la visión descolonial de Frantz Fanon y la so- ciología descolonial de Boaventura de Sousa Santos, Formas- Otras: Saber, nombrar, narrar, hacer, CIDOB, Barcelona, Spain, 97–108, 2011. https://doi.org/10.5194/gh-75-403-2020 Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020-supplement https://doi.org/10.1080/10455752.2018.1558272 https://doi.org/10.1080/00393380903345057 https://doi.org/10.1080/09502380903208023 https://doi.org/10.1163/9789004351677_013 https://doi.org/10.1111/j.1548-1360.2010.01061.x https://drive.google.com/file/d/0B31fnGLtBsbMLWR1ZkdrX3A0MWc/view?fbclid=IwAR1r3rebSoTp28Yn-5p1WAgS8o1n97Wzbrk0cOMmZr__MEpMmmhvbPbyuPU https://drive.google.com/file/d/0B31fnGLtBsbMLWR1ZkdrX3A0MWc/view?fbclid=IwAR1r3rebSoTp28Yn-5p1WAgS8o1n97Wzbrk0cOMmZr__MEpMmmhvbPbyuPU https://drive.google.com/file/d/0B31fnGLtBsbMLWR1ZkdrX3A0MWc/view?fbclid=IwAR1r3rebSoTp28Yn-5p1WAgS8o1n97Wzbrk0cOMmZr__MEpMmmhvbPbyuPU https://drive.google.com/file/d/0B31fnGLtBsbMLWR1ZkdrX3A0MWc/view?fbclid=IwAR1r3rebSoTp28Yn-5p1WAgS8o1n97Wzbrk0cOMmZr__MEpMmmhvbPbyuPU https://cpo.org.gt/2019/conocenos/ https://cpo.org.gt/2019/conocenos/ https://doi.org/10.1016/j.geoforum.2012.12.008 414 C. Ruiz-de-Oña Plaza: Between divine and social justice: emerging climate-justice narratives in Latin America Hafner, R.: Environmental Justice and Soy Agribusiness, in: Earth- scan food and agriculture, 1st ed., Routledge, Taylor & Fran- cis Group, London, New York, NY, INBN 978-0-8153-8535-6, 2018. Haluza-DeLay, R.: Religion and Climate Change: Varieties in Viewpoints and Practices, WIRES Clim. Change, 5, 261–279, https://doi.org/10.1002/wcc.268, 2014. Harris, P. G. (Ed.): A research agenda for climate justice, Edward Elgar Publishing, Northampton, UK, 2019. Hernández Castillo, R. A.: Sur profundo: identidades indígenas en la frontera Chiapas-Guatemala, Centro de Investigaciones y Es- tudios Superiores en Antropologia Social, México, 2012. Honty, G.: Cambio Climático: negociaciones y consecuencias para América Latina, Coscoroba/CLAES, Uruguay, 2011. Jenkins, W.: Feasts of the Anthropocene: Beyond Climate Change as Special Object in the Study of Religion, South Atlantic Quar- terly, 116, 69–81, https://doi.org/10.1215/00382876-3749326, 2017. Kerber, G.: Climate change and Southern theologies. A Latin American insight. (As alterações climáticas e as teologias do sul. Uma visão da América Latina, HORIZONTE) – Re- vista de Estudos de Teologia e Ciências da Religião, 45–55, https://doi.org/10.5752/P.2175-5841.2010v8n17p45, 2010. Kirmani, N.: The Relationships between Social Movements and Re- ligion in Processes of Social Change: A Preliminary Literature Review, Religions and Development Research Program, Inter- national Development Department, University of Birmingham, Department for International Development (DFID), UK, 2008. Leff, E.: La apuesta por la vida: imaginación sociológica e imagi- narios sociales en los territorios ambientales del sur, Siglo XXI Editores, México DF, Mexico, 2014. Lorentzen, L. A. and Salvador, L.-A.: Religion and Environmental Struggles in Latin America, in: The Oxford Handbook of Reli- gion and Ecology, edited by: Gottlieb, R. S., 510–534, Oxford University Press, Oxford, USA, 2006. Mbembe, A.: Necropolitics, Public Culture, 15, 11–40, 2003. Mignolo, W. D. and Escobar, A. (Eds.): Globalization and the Decolonial Option, 1st ed., Routledge, New York, NY, USA, Canada, 2013. Narchi, N. E.: Environmental Violence in Mexico: A Con- ceptual Introduction, Lat. Am. Perspect., 42, 5–18, https://doi.org/10.1177/0094582X15579909, 2015. Navarro, M. L.: Subjetividades políticas contra el despojo capital- ista de bienes naturales en México, Acta Sociol., 62, 135–153, https://doi.org/10.1016/S0186-6028(13)71002-8, 2013. Orgaz, C. J.: ¿Qué es el Corredor Seco y por qué está ligado a la po- breza extrema en casi toda Centroamérica?, available at: https: //www.bbc.com/mundo/noticias-america-latina-48186820 (last access: 16 May 2019), 15 May 2019. Paz-Salinas, M. F.: Luchas en defensa del territorio. Reflexiones desde los conflictos socio-ambientales en México, Acta Sociol., 73, 197–219, https://doi.org/10.1016/j.acso.2017.08.007, 2017. Pellow, D. N.: What is Critical Environmental Justice?, 1st ed., Polity, Cambridge, UK, Medford, MA, USA, 2017. Riessman, C. K.: Narrative Methods for the Human Sciences, SAGE Publications Ltd, London, UK, 2008. Rivera, N.: Comunicado a la comunidad nacional e internacional. Asamblea de Pueblos Te Txe Chman, San Marcos, Prensa Comunitaria Km. 169, available at: https://comunitariapress. wordpress.com/tag/mam/ (last access: 29 April 2019), 2016. Schlosberg, D.: Defining Environmental Justice: Theories, Move- ments, and Nature, 1st ed., Oxford University Press, USA, Ox- ford, 2009. Sosa, M. and Camey-Huz, L.: Guatemal: del despojo a la gestación de alternativas, Revista Geonordeste, XXVI, 328–343, 2015. Svampa, M.: Fronteras del neoextractivismo en América Latina Conflictos socioambientales, giro ecoterritorial y nuevas depen- dencias, Maria Sybilla Merian Center. Ed. Universitaria y UCR, FLACSO Ecuador, Germany, 2019. Tamboukou, M.: A Foucauldian approach to narratives, in: Doing Narrative Research, edited by: Andrews, M., Squire, C., and Tamboukou, M., 102–120, SAGE Publications, London, UK, Thousand Oaks, California, 2013. Toledo Pineda, M. A. C. and Coraza de los Santos, E.: Los mam de México y Guatemala: un pueblo binacional entre la autonomía y la heteronomía, Revista Pueblos Y Fronteras Digital, 14, 1–32, https://doi.org/10.22201/cimsur.18704115e.2019.v14.369, 2019. Veldman, R. G., Szasz, A., and Haluza-DeLay, R.: How the World’s Religions are Responding to Climate Change: Social Scientific Investigations, Routledge, New York, NY, USA, Canada, 2013. Geogr. Helv., 75, 403–414, 2020 https://doi.org/10.5194/gh-75-403-2020 https://doi.org/10.1002/wcc.268 https://doi.org/10.1215/00382876-3749326 https://doi.org/10.5752/P.2175-5841.2010v8n17p45 https://doi.org/10.1177/0094582X15579909 https://doi.org/10.1016/S0186-6028(13)71002-8 https://www.bbc.com/mundo/noticias-america-latina-48186820 https://www.bbc.com/mundo/noticias-america-latina-48186820 https://doi.org/10.1016/j.acso.2017.08.007 https://comunitariapress.wordpress.com/tag/mam/ https://comunitariapress.wordpress.com/tag/mam/ https://doi.org/10.22201/cimsur.18704115e.2019.v14.369 Abstract Introduction Social movements as socio-environmental struggles in Latin American contexts: the eco-territorial turn Theoretical and methodological remarks Climate justice and the religion factor in socio-environmental struggles The religious and climatic elements in MODEVITE and the Council of Maya Mam narratives of struggle Climate-justice narratives emerging in MODEVITE and the Council of Maya Mam Two countries, one ethnic origin: the ancestral territory of the Maya Mam between Chiapas (Mexico) and San Marcos (Guatemala) Discussion and conclusions Data availability Supplement Competing interests Acknowledgements Review statement References 
work_betwehdt6vdgvdacekormu4koq	----	EP328529_for web.qxd http://epx.sagepub.com/ Educational Policy http://epx.sagepub.com/content/23/1/216 The online version of this article can be found at: DOI: 10.1177/0895904808328529 2009 23: 216Educational Policy John S. Rogers and Veronica Terriquez ''More Justice'' : The Role of Organized Labor in Educational Reform Published by: http://www.sagepublications.com On behalf of: Politics of Education Association can be found at:Educational PolicyAdditional services and information for http://epx.sagepub.com/cgi/alertsEmail Alerts: http://epx.sagepub.com/subscriptionsSubscriptions: http://www.sagepub.com/journalsReprints.navReprints: http://www.sagepub.com/journalsPermissions.navPermissions: http://epx.sagepub.com/content/23/1/216.refs.htmlCitations: at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ http://epx.sagepub.com/content/23/1/216 http://www.sagepublications.com http://www.fsu.edu/~pea/ http://epx.sagepub.com/cgi/alerts http://epx.sagepub.com/subscriptions http://www.sagepub.com/journalsReprints.nav http://www.sagepub.com/journalsPermissions.nav http://epx.sagepub.com/content/23/1/216.refs.html http://epx.sagepub.com/ “More Justice” The Role of Organized Labor in Educational Reform John S. Rogers Veronica Terriquez University of California, Los Angeles This article explores the potential role of low-wage service sector unions in engaging in equity-minded school reform. The members of many such unions are parents of children attending poorly resourced public schools. In seeking to address the interests of their members, labor unions can draw upon resources, organizing strategies, and political relationships to contribute to grassroots campaigns for educational equity. Data gathered in Los Angeles from labor and civic leaders, as well as janitors belonging to the Service Employees International Union Local 1877, reveal possibilities for low-wage service sector unions to build alliances around educational reform issues and support their members’ individual capacities to advocate for their own children in schools. At the same time, low-wage service sector unions face challenges to participating in school reform efforts, including prioritizing education issues among other competing interests and identifying common ground with teachers’ unions. Keywords: labor, organizing; school reform; equity [When the] SEIUs, the HEREs of the world . . . get involved [in educa- tional reform] it sends a different message than your traditional bargaining units who simply are involved around the bread-and-butter issues of pay [and] health care and don’t ever . . . really talk about issues of educational equity and access. . . . [The service sector] unions have a different say because their kids attend the schools. Luis Sanchez, school board staff member Educational Policy Volume 23 Number 1 January 2009 216-241 © 2009 Corwin Press 10.1177/0895904808328529 http://epx.sagepub.com hosted at http://online.sagepub.com 216 Authors’ Note: Research for this article was supported by the University of California Labor and Employment Research Fund and the Institute for Research on Labor and Employment at the University of California, Los Angeles. The authors would like to thank Ramon Martinez and Rema Reynolds for research assistance on this article. at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Let’s say a [service union] local that had X number of members in a par- ticular school called a meeting of the union . . . [and used] that already existing network and . . . community of interests between those workers at a school. They could then work with the teachers and other workers at that school, as well as other parents. They could be a bulwark for organizing parents within that school. Joel Jordan, teacher union organizer The [service sector] unions are made up of [thousands of] people. So if you can put that number of people in the streets on an issue, then you can get somebody’s attention and . . . maintain that attention until [you] get what [you] want. Goldie Buchanon, parent organizer1 Low-wage service sector unions have rarely garnered the attention of educational officials, civic elites engaged in educational reform, or scholars of the politics of education. Yet there is some reason to believe that change is afoot. During the past 15 years, service sector unions in several cities have demonstrated a willingness and capacity to mount substantial political campaigns to enhance the position of workers and improve public services. Although, to date, they have not moved in force into education policy, low-wage service sector unions hold a distinct set of educational interests, maintain considerable political resources, and have the capacity to deploy innovative and potentially powerful tactics. This article draws on data collected in Los Angeles to explore the potential for these unions to become an advocacy force to reckon with in 21st century politics of education. Consider the case of the janitors union in Los Angeles, the Service Employees International Union (SEIU) Local 1877. The vast majority of the 8,000 members of SEIU Local 1877 are immigrants with relatively low levels of formal educational attainment. In a membership survey from 2006, more than nine in ten respondents reported they were born outside of the United States, mostly in Mexico, El Salvador, and Guatemala. Only one in four members indicated that they hold a high school degree. Most of these janitors are parents of students in Los Angeles schools. And like many low-wage workers in Los Angeles, members of Local 1877 view their children’s education as the key to long-term financial security for their families. In a survey conducted by the union, three in four janitors reported that they expect their children to graduate from college. These high aspirations are not matched by quality learning opportunities for the children of Local 1877. The relatively high levels of residential seg- regation among Local 1877 members mean that many janitors send their Rogers, Terriquez / Organized Labor and Educational Reform 217 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 218 Educational Policy children to a fairly small group of schools. Approximately half of Local 1877’s members live near 17 of Los Angeles County’s 180 comprehensive high schools.2 In Los Angeles County, as in many economically and racially segregated metropolitan areas, residential location is correlated with the resources available in local schools (Orfield & Eaton, 1996). The 17 high schools closest to Local 1877 members are highly segregated; Latino and African American students compose 90% or more of the popu- lation in 14 of the schools. In 15 of the 17 schools, more than half of the students are eligible for free or reduced-price lunch. Furthermore, these 17 schools provide notably less resources than other public schools in California. They are five times more likely than other schools in the state to experience severe shortages of qualified teachers. They are seven times more likely to be designated by the state as “critically overcrowded.” It is thus not surprising that these high schools have low graduation and college eligibility rates. For every 100 students who entered these 17 high schools in fall 2001, fewer than half graduated four years later and less than one in six graduated having completed the requirements for four-year colleges.3 This poor performance is not the exclusive domain of high schools. We estimate that more than two in three of the public schools attended by children of Local 1877 members have been designated by the state of California as Program Improvement Schools because of the schools’ fail- ure to meet adequate yearly progress as specified by the No Child Left Behind Act.4 Given the conditions and performance of public schools serving janitors’ families, it is not surprising that Local 1877 organizer Aida Cardenas calls educational reform “the civil rights issue . . . of our generation.” Cardenas’s claim is echoed by members of Local 1877. More than two in three members surveyed by the union strongly agreed with the statement “Local 1877 should become involved in improving the education system for members children.” Fewer than 5% of members disagreed, even though a number of members do not themselves have children. Furthermore, when asked to select the most important issue for the union to focus on (beyond wages, benefits, and work site concerns), Local 1877 members chose education reform above other critical issues such as immigration reform and access to affordable housing. The interest of members in educational reform is significant because Local 1877 (formerly part of Local 399) has a history of joining and winning polit- ical campaigns. In the late 1980s and 1990s, the so-called Justice for Janitors campaigns challenged both the building owners and contractors and the at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 219 conventional wisdom that immigrant workers in a decentralized, deunionizing industry could not be organized. These campaigns drew on new strategies of mass mobilization and coalition building with a variety of civic and religious groups. Local 1877 also deployed highly visible organizing tactics including public protests and marches, acts of civil disobedience (e.g., blocking traffic during Los Angeles rush hour), street theater, hunger strikes, and aggressive efforts to garner media attention. The janitors won union recognition, won improved wages and benefits, and garnered substantial political influence in the city at large (Milkman, 2006; Waldinger et al., 1998). Local 1877’s victory has been characterized as “the single most important organizing success story of the US labour movement in the late twentieth century” (Erickson, Fisk, Milkman, Mitchell, & Wong, 2002, p. 544). Yet for all of this potential, Local 1877 is only beginning to explore its role in educational reform in Los Angeles. With the notable exception of the teachers union, most sectors of organized labor have played little or no role in shaping Los Angeles educational policy and practice during the past two decades. The United Teachers of Los Angeles (or UTLA) has been the primary voice of labor on education policy issues. The only other union that consistently participates in educational policy discussions is the Associated Administrators of Los Angeles (AALA). However, AALA’s influence pales in comparison to that of UTLA. Some other unions, particularly those in the building and trades sector, have joined policy discussions about career and technical education that they see affecting workforce development. Finally, SEIU Local 99, representing classified staff in the Los Angeles Unified School District (LAUSD), has been a significant force in its own contract negotiations with the district. But it has yet to assert a formal role in discussions about educational practice. There are many reasons why educational reform has been the near exclu- sive domain of teachers unions. Many service sector unions defer educational questions to teachers unions as an acknowledgement of professional exper- tise. Local 1877 organizer Aida Cardenas explained the prevailing view has been “that’s their field, that’s their expertise, they’re the ones that know.” In addition, low-wage service sector unions generally have focused their energies on bread-and-butter concerns with salary, benefits, and working conditions or on other issues such as immigrant rights. In the remainder of this article, we explore the possibilities for service sector unions to become significant players in educational reform. We con- sider, as well, the potential significance of such a shift for organized labor, equity educational reform, and grassroots mobilization for social justice. at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ This article unfolds in four sections. The first section builds a case for why organized power is necessary to promote equity reform. The second section examines the potential role of organized labor in creating organized power for educational reform. This section draws on cross-national research on social justice unionism, focus groups with Los Angeles residents, and interviews with labor and civic leaders in Los Angeles to consider the rationale and possibilities for labor-community partnerships for educational justice. The third section returns to the story of Local 1877 in the form of a case study examining the emerging educational activism of individual members and the incipient efforts to forge coordinated action. The fourth section takes a more sober note, considering the challenges of engaging low-wage service sector unions in educational reform. We close with a few thoughts on the prospects for organized labor to surmount these challenges. Our study draws on qualitative and quantitative data collected between 2006 and 2008. We conducted 11 interviews with labor and civic leaders in Los Angeles about the role of service sector unions in educational reform. The labor leaders represented such diverse constituencies as teachers, carpen- ters, janitors, and school cafeteria workers. We also gathered individual interview data from Local 1877 staff and rank-and-file 1877 leaders and conducted 40 in-depth interviews with 1877 members on their labor union involvement, parental school participation, and interest in union sponsored educational programming. We use data from two focus groups with union members regarding Local 1877’s role in supporting the education of members and their children. Furthermore, we draw on field notes gathered from our participation in the union’s education-related meetings, observations of the union’s public actions, and participant observations of nine days of parent education workshops targeting Local 1877 members with children. We also report data from two different surveys with 1877 members. The first survey was administered by the union (with our technical assistance) between November 2006 and January 2007 to 386 members at various job sites and at the union hall. The purpose of this initial survey was to gauge member interest in school reform and various education-related program- ming. In summer 2007, we conducted a telephone survey of a random sample of union members with children.5 Our survey contains a sample of 378 respondents—221 women (58%) and 157 men (42%).6 Data collected from this second survey include information on members’ demographic background, labor union participation, involvement in the school of one randomly selected school-aged child, and other information. 220 Educational Policy at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 221 Why Equity Educational Reform Requires Organized Power In the past few years, we have joined our colleague Jeannie Oakes in arguing that the problems facing urban school systems such as Los Angeles cannot adequately be addressed through conventional reform strategies that deemphasize politics and advocacy and highlight organizational change and technical expertise (Oakes & Rogers, 2006, 2007; Oakes, Rogers, Blasi, & Lipton, in press; Rogers & Oakes, 2005).7 Such strategies are dominated by three flawed assumptions. The first holds that high-quality and equitable schools can be created by working exclusively within the educational system. The second is that inequalities are sustained by a lack of informa- tion about education opportunities or appropriate reform technologies. The third assumption, following from the first two, is that once policy makers and educators understand the problem and how to address it, they will act to improve and equalize schooling. All of these assumptions presume that poor and unequal schooling is at odds with deeply held values of opportunity and fairness. Rather than conflicting with our cultural values, inequality is endemic to the logic of our society and to the role schools play in it. At least three powerful cultural “logics” shape how people make sense of the schooling that society provides to various groups of students: the logic of scarcity, the logic of merit, and the logic of deficits. The logic of scarcity assumes that our society can afford only limited investments in public life and public education. Hence, the supply of “quality” schooling cannot keep pace with increased demands for more and better education that is needed for good jobs and middle-class lives. The logic of merit assumes that young people compete for scarce schooling advantages with their talents and effort in a context of equal opportunity and are rewarded with educational opportunities commensurate with the degree to which they deserve them. The logic of deficits presumes that low-income children, children of color, and their families are limited by cultural, situational, and individual deficits that schools cannot alter. That these children get fewer education and social advantages is a result of these deficits and not of structures within the educational system. Together, these three narratives make it difficult for Americans to see that inequality is the result of flawed policies and structures rather than attributes of individual children and their families. In other words, limited opportuni- ties, educational “winners” and “losers,” and unalterable deficits all make inequality seem sensible and normal to people across political and socioeco- nomic spectra. This normalization of the status quo eases public pressure for at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ equity reform. There is no need to challenge powerful vested interests or to leverage new resources (let alone redistribute existing resources) if prevailing outcomes are reasonable and inevitable. Parents and community members may express frustration with educational conditions, but not in a manner that prompts sustained political response. The logics of scarcity, merit, and deficit thus support a quiescent (though often dissatisfied) public. Altering the politics of education requires confronting these logics and energizing members of the public who are poorly served by existing schools. And this points to the importance of grassroots mobilizing to achieve more equitable schooling. Grassroots and activist organizations, seeking to build the power of low-income communities, engage students, parents, and community members in powerful actions aimed at exposing and disrupting schooling inequalities. These groups routinely target the prejudices and politics that sustain unequal schooling. Because grassroots “reformers” are also those who experience the broad range of social, economic, and political inequality, their centrality in reform forces the connections between education and broader social issues and struggles. Organized grassroots groups often use a repertoire of social movement actions—actions that persuade with the weight of their numbers, their capac- ity for material damage, and the garnering of sympathy and support by bear- ing witness (Della Porta & Diani, 1999). Actions based on the power of numbers include marches, rallies, petitions, letter writing, and mobilizing voters. Like democratic political processes, such actions attempt to persuade elites that there is large public support for or against a particular policy. Actions reflecting a theory of “material damage” include boycotts, strikes, blocking traffic, disrupting business, and, at the extreme end, damage to prop- erty. The theory here is that actions will be powerful and persuasive if they cause some noticeable impact on the economy or disrupt normal processes. Actions based on “bearing witness” include forms of civil disobedience such as hunger strikes, burning draft cards, refusal to pay taxes, and chaining one- self to a tree. These strategies seek “to demonstrate a strong commitment to an objective deemed vital for humanity’s future” by engaging in behaviors that involve personal risk or cost (Della Porta & Diani, 1999, p. 178). Together, these actions enable grassroots groups to leverage their size, networks of support, and moral standing to secure resources and forge empowered relationships with public officials. During the past decade, we have seen a significant growth in both grass- roots community organizing for educational reform and in studies of this emerging phenomena (Warren, in press). Scholars from the disciplines of sociology, political science, and education have examined struggles for 222 Educational Policy at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ educational justice as a strategy for equity educational reform and civic engagement (Noguera, Ginwright, & Cammarota, 2006; Orr, 2007; Warren, 2001). Much of this literature (e.g., Shirley, 2002) has focused on community- and/or faith-based organizations as the primary agents for building power and effecting policy changes. Aside from an occasional reference to teachers unions, little attention has been paid to the potential role of labor unions in grassroots campaigns for educational reform.8 The importance of organized labor has been a more salient theme in the literature on education and social movements. In her seminal book Radical Possibilities, Jean Anyon (2005) argued that, because the problems of urban schools are embedded in the political economy of cities, lasting and signif- icant changes in educational opportunity require radical changes outside of schools, which in turn demand broad-based social movements. Anyon envisioned an important role for progressive labor unions in building such a movement (p. 160). Jeannie Oakes and John Rogers (2006, p. 172; also see Oakes et al., in press) similarly argued that the best possibility for advancing educational justice lies in social movements that simultaneously address the need for quality schooling and the needs for decent paying jobs, access to health care and housing, and so on. Oakes and Rogers hypothe- sized that the renewed focus on organizing within sectors of the labor move- ment with a large presence of working mothers may create opportunities for movement activity that brings together organized labor and community- based organizations focused on educational reform. Social Justice Unionism, Organized Power, and Educational Reform Although scholars in the field of labor studies have not yet addressed the potential of service sector unions to participate in educational reform, they have written more generally about efforts of organized labor to forge coali- tions with community organizations to address the needs of working people. For example, Frege, Heery, and Turner (2003) documented an array of coalitions in Germany, Britain, and the United States “between trade unions and other nonlabor institutions in civil society, including commu- nity, faith, identity, advocacy, welfare and campaigning organizations.” Labor scholars term such coalition-based activity social movement union- ism to highlight the importance of collective mobilization to “wrest conces- sions from corporations and corporate-dominated governments” (Nissen, 2004, p. 67). Rogers, Terriquez / Organized Labor and Educational Reform 223 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 224 Educational Policy Social movement unionism has emerged against the backdrop of global- ization and neoliberal economics, which have combined in recent decades to erode the welfare state and shrink union membership. Union member- ship has declined from 35% of the U.S. workforce in the 1950s to less than 15% today (Fine, 2005, p. 153). During much of this period of decline, labor organizations adopted more conservative goals and tactics. They embraced top-down organizing campaigns with minimal participation from rank-and-file members, practiced nonconfrontational tactics, and, with few exceptions (e.g., in the public sector), did not engage in extensive efforts to organize new members (Milkman & Voss, 2004; Voss & Sherman, 2000). Faced with harsher conditions and declining power, some unions have responded to the crisis in labor by combining new organizing strategies with the radical tactics used in the 1930s when the U.S. labor movement was at its strongest. Unions, especially those representing workers in indus- tries that cannot be outsourced, have increasingly used massive street demonstrations, direct action, worker mobilizations, and sophisticated cam- paigns to garner more strength and power. Stepped up activism by unions was strongly supported by a turnover in leadership in the AFL-CIO in 1995. John Sweeney, the newly elected president, called for unions to use 30% of their resources for new organizing. Resulting changes have led to the revi- talization of segments of the labor movement, greater emphasis on the lead- ership development of rank-and-file workers in some unions, and increased visibility of worker mobilizations motivated by social justice, particularly in urban centers (Milkman & Voss, 2004; Voss & Sherman, 2000). This new, more militant unionism has looked to effect policy changes in nontraditional areas such as international labor standards and immigration to build its base and hence its power. These campaigns have prompted unions to seek partners outside of labor. Frege et al. (2003) explained, “As the agenda of interest representation extends beyond the immediate employ- ment relationship, unions almost inevitably become drawn into contact with preexisting campaigning and advocacy organizations.” Coalition building has the potential to revitalize unions and the broader labor movement in at least three ways. First, coalitions extend the power of unions beyond their existing membership. This potential to augment an existing base of support is critical in sectors with low union density. Second, coalitions between trade unions and community organizations around issues of public concern can foster union-friendly sentiment in the broader public. As Nissen (2004) argued, a “major task for organized labor in this country is to change the cultural climate so that union rights become a cause to which large percentages of the population are dedicated” (p. 68). Third, at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 225 participating in grassroots mobilizations generates political energy (confi- dence, commitment, and relationships) that organizers can leverage in future organizing campaigns. While acknowledging the challenges of building coalitions, labor scholars have tried to identify conditions that encourage unions to forge partnerships in the community. Tattersall and Reynolds (2007) pointed to the importance of building coalitions around a common purpose that can foster “interorga- nizational participation.” They argued that a common purpose is most effec- tive when it “is framed as a social vision for working people as a whole” (p. 79). Turner’s (2007) comparative analysis suggested that coalitions are more likely to arise in particular urban centers. Social justice unionism, he argued, emerges when key union leaders make strategic choices that take advantage of the “opportunity structure”—the institutional openings and social context (p. 4). New coalitional and grassroots strategies, for example, are particularly responsive to urban areas with sizeable service industries and a large immigrant workforce. What Can Service Sectors Unions Bring to Educational Reform? Low-wage service sector unions potentially can contribute to grassroots campaigns for educational reform through their resources, relationships, or knowledge and skills. Unions can leverage substantial resources to effect change. By pooling funds from large numbers of workers, labor unions can turn a relative weakness of low-wage workers into a relative strength. Tattersall and Reynolds’s (2007) international study of labor–community coalitions found that “out of all coalition partners, unions usually have the largest number of resources at their disposal; they usually have the largest number of members and the largest base of independent funds” (p. 78). In addition to their capacity to disperse and direct funds, many labor unions also bring a powerful communications infrastructure to campaign work. The Los Angeles School Board’s Luis Sanchez noted that unions like UNITE HERE and SEIU have “member to member capability where they can send out information to their membership, some that have 30,000 to 90,000 members. They can educate them about these issues.”9 Furthermore, by mobilizing a sizeable membership, unions can generate a prized political resource—high levels of participation in campaigns. Several Los Angeles labor and civic leaders noted the potential for unions to bring out large numbers of members to grassroots actions. UTLA’s Joel Jordan envisioned service sector unions underwriting the efforts of existing educational reform groups: at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 226 Educational Policy There are community-based organizations that help parents get organized, but they . . . don’t have the resources that many of these unions have, both in terms of staff and in terms of their overall resources. . . . So the unions could play a very valuable role. Along with activating resources, low-wage service sector unions can use their extensive social and political relationships to contribute to campaigns for educational reform. Tattersall and Reynolds (2007) argued that within social movement unionism, organized labor often draws on the social net- works of both members and unions to “enfranchise the coalition’s agenda” (p. 78). Union locals such as Local 1877, with long histories of working with community groups, are able to bring new partners into campaigns. Moreover, they can draw on existing networks with elected officials. According to SEIU’s Aida Cardenas, these networks create “political lever- age, political clout [that can] . . . help put issues on a platform or actually have some sort of decision-making power.” Low-wage service sector unions also contribute valuable knowledge and skills to their coalitional work. This contribution is noteworthy because it inverts the commonly held view that community groups provide the “brains” and unions the “muscle.” Indeed, the literature on union–commu- nity coalitions speaks of unions turning to community groups for expertise on policy issues but does not highlight the understanding that unions bring to these partnerships (Frege et al., 2003). Many service sector unions bring sophisticated understandings of organizing and campaign development that can be of great use to educational reform efforts. Aida Cardenas pointed out that at SEIU “we know how to build a base and we know . . . how to build a program and engage and give members ownership.” UTLA’s Alex Caputo- Pearl similarly argued that SEIU and UNITE HERE can teach education organizers about “tactics and approaches used in one-on-ones, leadership development, [and issues such as] how to deal with people’s fear.” Los Angeles Deputy Mayor Larry Frank was particularly expansive in his explanation of the special knowledge that unions such as SEIU and UNITE HERE bring to political work: These unions have the ability to implement something called a strategic cam- paign. This approach analyzes the political landscape, understands leverage, and can move a very large public campaign using multiple strategies. Their message and actual work is by design focused on a broad public benefit, instead of a narrow private interest. at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ UTLA member Alex Caputo-Pearl made a related point in acknowledging the ability of SEIU and UNITE HERE to integrate research into their cam- paigns. These unions are able to “identify what some broader trends are going to be in the economy and industry” and how these trends “might shape schooling.” Caputo-Pearl believed these and similar insights are “really critical” for future educational campaigns. Alongside the skills embodied in a union’s staff are the skills that activist unions instill in their membership. Unions that engage members in con- tentious political activity provide members with specific advocacy and organizing skills that they can apply to other contexts outside of a labor- related campaigns. For example, workers in unions learn how to exercise their rights, file grievances, organize strikes or other collective actions, and appeal to government officials. McAdam, Tarrow, and Tilly (2001) explain that experience with activism provides participants with scripts or reper- toires. In applying these repertoires to problems they face, individuals “do not simply invent an efficient new action or express whatever impulses they feel, but rework routines in response to current circumstances” (p. 138). Participation in labor unions can be an empowering experience that shapes individuals’ interests and values. Labor unions can provide workers opportu- nities to learn about their rights and how to exercise them individually or collectively in both the workplace and in other civic arenas. Moreover, as Anyon (2005) explained, experiences such as protesting, marching, and making political demands can shape an individual’s political identity and commitments. In particular, union members’ collective participation in mili- tant workplace activities can influence their political consciousness, attitudes, and values (Fantasia, 1989). Prior experience in labor organizations that engage workers in interest-based social and political activism thus may lend itself to future activism in the arena of educational politics. Why Service Sector Unions Have a Stake in Education Reform Traditionally, unions have represented the interests of workers at the workplace, seeking to secure decent wages, benefits, and work conditions. Local 1877’s Aida Cardenas noted that her union seeks “to stabilize your job, to make it full-time, to have health insurance, to have vacations, to have a livable wage.” She called these core conditions the “basics of bringing folks out of poverty.” During the past two decades, some unions have begun to define workers’ interests more broadly. Saira Soto, staff member at Local 721 representing public sector service workers, explained that SEIU looks Rogers, Terriquez / Organized Labor and Educational Reform 227 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ “at our members as a whole, because . . . at 5:00 they go home and belong to a community that is affected by low wage work [and] the lack of affordable housing.” Unions thus have an interest, reasoned UTLA’s Joel Jordan, “in improving the overall quality of life” of their members. Beyond the workplace, low-wage service workers’ lives are shaped by policies that determine both the short-term and long-term opportunities for their families. Issues such as access to decent affordable housing speak to workers’ present needs. Immigration reform has been a critical issue for many low-wage workers because it potentially addresses both immediate threats to their livelihood and future possibilities for economic mobility and political power (Wong & Munoz, 2004). Education primarily represents a long-term interest of low-wage service workers.10 Aida Cardenas argued that although successful union campaigns can provide low-wage service workers with marginal increases in income and benefits, they cannot move families into the middle class: “So now, we’re looking at how do we really look at the next step for the future for those families, which is their . . . children’s education.” Cardenas believed that Local 1877 members see a direct rela- tionship between these educational aspirations and their daily work. It is why they work so hard every night and fight for decent working condi- tions and being rewarded for their work, so that they can provide something for their kids and their kids to go onto college and get a degree and have a much better life than they’ve lived. It is important to consider the institutional interests of the unions along- side the interests of their members. Unions want to expand their member- ship and build their power and influence. Progressive unions also want to effect social change on behalf of their members. There is an iterative rela- tionship between these two sets of interests: Struggling for and achieving social change can help unions become more powerful. In his cross-national study of unions participating in coalitions, Lowell Turner (2007) found that “unions build on bases in society well beyond the workplace to gain public support and build new political power that can also feed back into work- place power” (p. 4). Turner’s conclusion resonates with the findings from a series of focus groups convened by the Institute for Industrial Relations of the University of California, Los Angeles (UCLA) in 2005 to explore the public’s attitudes toward labor. A random sample of eligible voters in Los Angeles County reported generally unfavorable views about organized labor. Most partici- pants in the focus groups—including union members themselves—viewed 228 Educational Policy at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 229 unions as acting in narrowly self-interested ways that often undermined public purposes, for example, by protecting “bad” workers from being fired. Although a sense of indifference or hostility to unions pervaded the focus groups, these attitudes changed when focus group facilitators shared specific examples of unions standing up for nonmember workers. The examples were most persuasive when there was an explanation given for why unions might be working on issues beyond the workplace; for example, union members are parents of children in public schools (UCLA, Institute of Industrial Relations, 2006). Los Angeles Deputy Mayor Larry Frank made a related argument about the interests of service sector unions in Los Angeles: There are two primary goals that unions must address to build their political power. The first is focused on getting back their moral authority and the sec- ond is their need to organize the unaffiliated workers. For the new labor movement, those two interests are interlinked in order to get the power to be meaningful in the public arena. They need union density to elevate their voice. And they need moral authority, which comes form a focus on public benefit, to build their base. For Aida Cardenas, these dual goals represent an “opportunity” for the union “to demonstrate leadership.” Cardenas believed that, by partnering with community organizations around issues like educational reform, SEIU establishes credibility and a base of good will. As SEIU takes on big social issues, it gains “visibility within the community” which can “help us orga- nize tomorrow.” Cardenas concluded, “If a union organizer from SEIU comes out selling a tour about organizing with SEIU, it helps. So I’m think- ing the full circle.” The Case of Local 1877 Turner (2007, p. 6) highlighted two factors that shape whether coalitions between unions and community groups emerge—(a) the opportunity structure set by a particular political, economic, and institutional context and (b) the agentive decisions of key union leaders and membership. Opportunity struc- ture refers to strategic openings created by shifts in who holds authority and legitimacy or who can leverage political resources. Such openings might be created by divisions among a city’s power brokers or rapid demographic change. Agency refers to the choice of leaders to take advantage of these new opportunities. Tattersall (2006) built on Turner’s work to argue that a union’s agency is shaped by its historic identity. She is worth quoting at length: at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Unions with a history of militancy, ideological radicalism or broad interest representation beyond wages and conditions may be more likely to engage in future collaboration. Ideologically progressive unions may find it easier to cultivate a common interest with community organizations if they are com- mitted to campaigning on issues beyond wages or conditions. Similarly, if union collaboration is a familiar tactic—part of a union’s “repertoire of contention”—then it is more likely to be used as a strategy in the future. Opportunity Structure for Union Engagement in Educational Reform Four strategic openings have emerged in recent years that create an envi- ronment conducive to union–community partnerships for educational reform in Los Angeles: (a) the election of union-friendly Latino leadership in City Hall and in the school district, (b) the rise of progressive leadership in the teachers union, (c) the power of the County Federation of Labor, and (d) the residential concentration of union members around particular public schools. A first element of Los Angeles’s opportunity structure is the emergence of city and school board officials with strong ties to the low-wage service sector unions. Antonio Villaraigosa, Los Angeles’s first Latino mayor in more than a century, has deep labor roots as a former UTLA labor orga- nizer. He was elected with a tidal wave of support from immigrant and service sector workers who remain core to his coalition. Monica Garcia, the school board president, has cultivated a strong relationship with several service sector locals. She aggressively sought out the endorsement of SEIU and subsequently championed a board resolution that provided health ben- efits to cafeteria workers represented by SEIU Local 99. Second, Los Angeles’s opportunity structure is shaped by the presence of a progressive teachers union. In 2005, an insurgent slate of candidates swept the key executive offices at UTLA. This group of leaders was elected to another three-year term in February 2008. Perhaps equally important, the progressive slate (“united action”) has scored victories at the local level as well, winning more than 80% of the seats of the regional leadership of the union, all of which are held by full-time classroom teachers (A. Caputo- Pearl, personal communication, February 24, 2008). A key initiative of the new UTLA leadership has been to initiate outreach to organizations in low- income communities of color. For more than a year, UTLA has convened meetings with 10 different community groups. As Caputo-Pearl noted, “The model is there to bring other unions in . . . who want to get really involved in educational reform discussions.” 230 Educational Policy at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 231 Third, the Los Angeles County Federation of Labor plays a major role in shaping opportunities for union activism and labor-community partner- ships in Los Angeles. Representing more than 345 affiliates and 800,000 workers, the “County Fed” is a major force in Los Angeles’s economy and political life (Frank & Wong, 2004, p. 156). Since the mid-1990s, the County Fed has convened different sectors of organized labor and brokered coalitions among labor and community organizations (Frank & Wong, 2004, p. 171). It has leveraged union power to advance the candidacy of several key elected officials and, in turn, been able to call on these officials to support labor friendly policies. As UTLA’s Alex Caputo-Pearl pointed out, the County Fed’s leadership is committed to building a “broader social movement for economic and social justice.” In addition to providing an infrastructure that supports social movement unionism, the County Fed is particularly responsive to those low-wage service sector unions that might consider becoming engaged in educational reform. Finally, the intense segregation of Los Angeles’s communities by race, immigrant status, and income creates residential concentrations of union members in areas around particular public schools. For example, Local 1877 members are residentially concentrated in a handful of predomi- nantly low-income Latino communities in Los Angeles County. Figure 1 shows the residential concentration of Local 1877 members in the Los Angeles Unified elementary school catchment areas. The map indicates that more than 50 Local 1877 members live within the attendance bound- aries of 11 Los Angeles Unified elementary schools, whereas between 25 and 49 union members live within the boundaries of about 26 elementary schools. Although not all Local 1877 members have children attending local elementary schools, such geographic concentration can potentially create opportunities for parents to join with fellow union members to advocate for school reform, especially given that many already have the skills useful for school-based problem solving and parent organizing. We emphasize potential participation because most members do not yet know whether other union members send their children to the same school as their own children. Local 1877 members are scattered across different work sites throughout Los Angeles County, and union functions provide limited opportunities for members to get to know each other as parents. Yet the opportunity for parents at the same school to collaborate with each other could be realized if the union made a concerted effort to help establish school-based networks of members. at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 232 Educational Policy Figure 1 Residential Concentration of Local 1877 Members in Los Angeles Unified School District (LAUSD) Elementary School Attendance Boundaries at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 233 Agency and Identity Since the early 1990s, SEIU Local 1877 has made headlines in Los Angeles for its successful Justice for Janitors campaigns. Throughout the years, the union has won higher wages, health care benefits, and other job protections for its largely Latino immigrant membership. Its highly visible organizing tactics include public protests and marches, acts of civil disobedi- ence (e.g., blocking traffic during the Los Angeles rush hour), street theater, hunger strikes, and aggressive efforts to garner media attention. The union’s organizing efforts have not been restricted to the five master contracts that it has negotiated within the past two decades on behalf of janitors. The union actively involves its members in immigrant rights’ demonstrations, election campaigns, and other political activities. Given the union’s past and historic efforts to engage members in its activist efforts, it is not surprising that many Local 1877 members have taken steps—on their own—to improve their children’s schools. Union members have participated in a range of school and community-based meetings focused on issues such as school overcrowding and substandard facilities. Individual Local 1877 members with children attending several different schools have reported collaborating with other parents to address student health and safety concerns at school sites. For example, when one parent found out that the drinking water at his child’s school contained lead, he initiated a successful campaign to force the school district to provide uncontaminated water. Participation in union-related activities provides many members with confidence and skills that enhance their participation in their children’s schools. Several union members report that their participation in union activism has boosted their confidence and their ability to speak up and defend themselves and others. These parents note that, in the past, they have felt uncomfortable speaking in public and confronting authority figures, including school personnel. Yet participation in union meetings, marches, trainings, and other activities has increased their assertiveness. For example, Lucia, a rank-and-file leader, stated, I was a very timid person, honestly, a very timid person. If I had to speak in public, I would turn red and would not know what to say. Getting involved in the [union] trainings has helped me become unafraid. . . . I believe that the union has played an important role in my life. I have learned a lot. It has given me confidence, it has helped me defend myself and speak to other people.11 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 234 Educational Policy Many Local 1877 members apply skills that they learn at the union to school-based advocacy and organizing efforts. One parent participated in the union’s contract negotiations and learned negotiating skills useful for advocating for more tutoring for her son and other children. The story of Francisco, a Guatemalan immigrant with a sixth grade education, offers an example of how union experience enhances parents’ school advocacy skills. Francisco arrived in Los Angeles in the late 1980s, obtained work as a jan- itor, and soon became involved in the Justice for Janitors campaigns. By the mid-1990s, he became a union steward and learned to help coworkers solve their grievances and mobilize them for union strikes and actions. As a shop steward, Francisco was required to keep track of workers’ phone numbers and the information that they needed to resolve their problems or obtain a large turnout for a rally. Now that he is no longer the shop steward at work, he performs a similar function for parents at his children’s schools. Yes, my book over there is where I have all the numbers. I can look for it right now and tell you with whom I have spoken to, all the numbers [I have called]. And I know, for example, the big district right now is at 333 Beaudry [Los Angeles Unified District Offices]. Well then, I call over there and they are the ones that are in charge of administration for all the schools. If they don’t help, you get in touch with Sacramento, and from Sacramento, they send an investi- gation and the whole thing gets bigger. Then the schools don’t like that, not even the district, because then other problems arise, and the problems get bigger.12 Possibilities for Joint Action Under the Union’s Leadership To date, Local 1877 members have engaged in educational advocacy primarily as individual parents rather than as members of their union. Yet Local 1877 members have a long history of working together as members of the same labor organization to address specific work site problems, fight for a fair contract, and campaign for other political causes (immigrant rights, election of a labor-friendly candidate, etc.). Recently, the union has begun to respond to members’ concerns about their children’s education. For example, the union has sponsored parent education workshops that provide members with additional information and skills to advocate for their children. At the request of membership, Local 1877 began hosting “Parent University” workshops to provide its immigrant workers a better under- standing of the California public school system and the roles parents can play to support their children through the schooling process. Workshops included topics such as parent rights, school governance structures, under- standing report cards and standardized tests, the college application process, at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, Terriquez / Organized Labor and Educational Reform 235 resource inequalities in public schools, and the California education budget. These workshops provide useful information for parent advocacy efforts. For example, after learning that she and other parents had a right to trans- lation at school events, one parent successfully advocated for interpreters at all parent meetings at her child’s school. Local 1877 used its most recent round of contract negotiations in spring 2008 to further support parental school involvement. Prior to negotiations, rank-and-file members expressed concern over conflicts that sometimes emerged between their work obligations and their desire to play a more active role at their children’s schools. Many members reported that they were not given permission to leave work to attend back-to-school nights, parent conferences, and other school events. One parent was not allowed to attend her daughter’s graduation. The members thus were interested to learn that an existing state law, the California Family–School Partnership Act, guarantees parents and guardians the right to take up to 40 hours off work each year to participate in activities at a child’s school or day care facility. Recognizing that the act provided no meaningful enforcement mechanism, Local 1877’s rank-and-file members and leaders reasoned that they could realize the law’s lofty rhetoric by making specific reference to it in their labor contract. As a result, the union was able to secure a contrac- tual commitment for janitors to be able to participate in their children’s schools in accordance with the Children Family–School Partnership Act. In addition, Local 1877 conducted a Parent University training for parents on the act and created a brochure that could be disseminated to members to facilitate parental school involvement. Local 1877 has directly and indirectly supported parents’ roles in edu- cation by using the union contract to create a fund for worker education. As a result of the most recent janitors’ contract signed in spring 2008, employ- ers must now contribute three cents per hour worked per employee to pro- vide workers with English classes at the union and at various job sites. This fund is also used for computer training and citizenship courses and may in the future be used for a GED program. Significantly, it supports the Parent University workshops. Challenges to Engaging Organized Labor in Educational Reform Thus far, we have told an optimistic story about the prospects for low- wage sector unions such as Local 1877 to become engaged in educational at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ reform. We have argued that these unions have a strong interest in promot- ing educational equity, that they stand to contribute substantially to such efforts, and that the political and institutional environment presents unique opportunities for them to become part of educational justice campaigns. In this section, we temper some of that optimism. We highlight ongoing com- petition for time and resources and then turn to the thorny problem of turf battles among unions. We close with a few thoughts on a way forward. A first challenge to engaging low-wage sector unions in educational reform is that these unions have many important demands on their atten- tion. Noting these multiple demands, Joel Jordan of UTLA argued that unions such as 1877 need to prioritize their goals. But, as Aida Cardenas suggested, this is no easy task. At 1877, we’re breaking through in new industries; we’re breaking through in sectors like security. We’re trying to fight through the airports, which is not an easy place especially after 9/11. We’re outreaching into other parts of the country. . . . The challenge is that we want to do a lot because there’s so much that needs to happen, so the challenge is keeping the focus; the chal- lenge is having the resources to do everything you want to do. A second, and related, challenge is that educational funding is often set in opposition to funds for other critical public services that affect low-wage workers. Union staffers such as Saira Soto face Solomonic choices about which policies to support. “There are too many things that need immediate attention so how do you push education over health care, how do you push health care over affordable housing, they are all extremely urgent and crit- ical issues.” The difficulty of these choices is compounded by state funding formulas that lock in funds for some services but not others and by the gen- eral public’s proclivity to support education spending before they support programs more directly targeted to address poverty. In times of budgetary retrenchment, it is thus difficult for low-wage service sector unions to com- mit to pursuing a narrow education agenda. The third challenge emerges from the fault lines separating teachers unions from low-wage service sector unions. In its crudest form, this sepa- ration emerges from class anxieties among teachers who worry about forg- ing alliances with low-wage workers. Hence, a delegate from the American Federation of Teachers shared his concerns about the new unionism with a New York Times reporter. “Don’t they realize if they really push this orga- nizing, the labor movement is going to wind up being a movement of straw- berry pickers and chicken pluckers?” (quoted in Early, 2004). 236 Educational Policy at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ But the divisions between teachers and other workers cannot simply be explained away as class bias. UTLA has been the preeminent—and often the sole—union voice on educational policy in Los Angeles for decades. UTLA officials feel that this historic role, alongside teachers’ professional expertise, should ensure a leadership role in any collaboration. Joel Jordan of UTLA noted that he expects other unions to coordinate any education work with UTLA. It would seem like a strange form of behavior [for 1877 to move unilaterally on educational issues]. It would seem that if those people who are really interested in school reform would want to . . . talk to the teachers union and also talk to teachers at schools. . . . If I was a local union outside of the teaching—outside of the teachers union, I would certainly—if I really was interested in pursuing reform and improvement in public education, the first place I would go to would be the teachers union and to the sister SEIU local that has members inside, who actually work with kids. These tensions over turf have been exacerbated by competing under- standings of the charter school movement. UTLA’s leadership worries that some charter schools do not ensure public accountability and equitable access to all students. More pointed, the leadership views charter schools that refuse union representation to their employees as a direct threat to UTLA’s power and to organized labor generally. Joel Jordan asserted that charter schools often take funds from districts and turn them over to nonunion operators, thereby harming both the teachers union and unions representing classified staff. Meanwhile, SEIU national director Andy Stern looked on charter schools as an expanding sector of the educational market that should be organized (Seewer, 2007). Alongside this difference in perspective is the political reality that Local 1877’s president Mike Garcia sits on the board of directors of Green Dot Schools, one of the major charter operators in Los Angeles. Teachers in Green Dot Schools are represented by the California Teachers Association rather than UTLA. Green Dot’s CEO Steve Barr and UTLA president A. J. Duffy sparred frequently in the media when Green Dot first sought to establish charter schools in areas traditionally served by the LAUSD (Lewis, 2006). These disputes most often centered on the question of whether Green Dot selectively recruited students, but the issue of union power was never far from the surface. The public rancor has given way in recent months to a less conflictual relationship, as UTLA has focused its attention on the problems with nonunionized charters (Blume, 2008; Dillon, 2007). Rogers, Terriquez / Organized Labor and Educational Reform 237 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 238 Educational Policy Prospects and Possibilities The likelihood of internecine battles within the house of labor thus seems to blunt the prospects for low-wage service sector unions to move forcefully into the field of educational reform. Deputy Mayor Larry Frank noted, “Ideally, labor is not at war with itself.” Is there a way forward? SEIU staff member Saira Soto pointed toward one helpful step. Service sector unions can begin to build bridges with the teachers union around issues of common concern. Union members whose children attend poorly resourced schools have an interest in attracting and retaining quality teachers. “Teachers should get paid more, [have] less students in a class. So there are a lot of places where we overlap in terms of what we want.” By entering into strategic alliances around such issues, low-wage service sector unions could begin to establish trust and a sense of goodwill that could lead to further partnerships. UTLA chapter chair Alex Caputo-Pearl suggested a different starting point for collaboration: focusing attention on a common enemy. “I think the biggest challenge [for] . . . unions, community organizations, or whomever is the . . . inertia and bureaucratic sort of groupthink.” He calls for a nuanced approach to charters. Although he opposes charters in principle, he under- stands that unionized charters can be used as a lever against district bureau- cracy so teachers, parents, and community groups have greater “freedom, support, resources, and time to figure out some things for themselves and not just be beholden to the next district memo.” Although there are still many issues that need to be sorted out, the poten- tial of low-wage service sector unions in educational reform represents a force to be reckoned with. This force has the capacity to build union mem- bership and enhance the moral standing of unions in the broader commu- nity. It can leverage more empowered relationships with education officials and significant new resources for poorly served schools. By connecting struggles for educational equity with other campaigns of low-income work- ers, it advances the possibility of broader social movements. Although this vision may seem millennialist, it is not new. “What does labor want?” asked Samuel Gompers in 1893. “We want more schoolhouses and less jails; more books and less arsenals; more learning and less vice; more leisure and less greed; more justice [italics added] and less revenge; in fact, more of the opportunities to cultivate our better natures”. Notes 1. Unless otherwise noted, the quotes in this article come from interviews or focus groups conducted between 2006 and 2008 with members and leaders of the Service Employee at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ International Local 1877 and Los Angeles labor and community leaders. We use pseudonyms for members of Local 1877. We identify all other labor, community, and civic leaders with their real names. 2. Data on the residential concentration of Local 1877 members come from 2006 zip code data provided by the union. 3. Our analysis of the conditions and outcomes in these 17 schools draws on the annual Education Opportunity Reports that we have coauthored with our colleagues at the Institute for Democracy, Education, and Access, University of California, Los Angeles. The reports define “severe shortages of qualified teachers,” “critically overcrowded schools,” and eligibility for four-year colleges. See http://www.edopp.org. 4. This estimate is based on a 2007 random sample survey of Local 1877 members. Data about the conditions and performance of these public schools are drawn from the California Basic Educational Data System. 5. The survey was funded by the University of California Labor Employment Research Fund. The Social Science Research Center at California State University, Fullerton conducted the telephone survey. 6. The sample excludes individuals for whom updated telephone information was missing from the union’s membership list in April 2007 when the sample was drawn. Of eligible study participants, 67% completed the phone survey. Local 1877’s represents approximately 8,000 janitors and other low-wage service workers. 7. This section draws on ongoing collaborative work with Jeannie Oakes. 8. There also has been some emerging organizing efforts that bring together progressive teachers unions with grassroots community organizing groups. The Center For Community Change in Washington, D.C., has played a key role in convening and documenting such part- nerships (Dingerson, 2007). 9. In 2004, UNITE (Union of Needletrades, Industrial and Textile Employees) merged with HERE (Hotel Employees and Restaurant Employees International Union) to form UNITE HERE. 10. Education can also be said to represent an immediate interest for low-wage workers in at least two ways. First, public schools provide a set of services that affect workers’ children in the here and now (their sense of self, health, and safety). Second, language classes, adult education, and community college courses can provide workers with knowledge and skills that can be used to advance their job status. 11. This quote is translated from the original Spanish. 12. See Note 11. References Anyon, J. (2005). Radical possibilities: Public policy, urban education and a new social move- ment. New York: Routledge. Blume, H. (2008, September 19). Teachers union chief comments on Green Dot and Locke High. Los Angeles Times. Retrieved September 19, 2008, from http://latimesblogs.latimes .com/thehomeroom/2008/09/teacher-union-c.html Della Porta, D., & Diani, M. (1999). Social movements: An introduction. Oxford, UK: Blackwell. Dillon, S. (2007, July 24). Maverick leads charge for charter schools. New York Times. Retrieved September 19, 2008, from http://www.nytimes.com/2007/07/24/education/24charter.html Rogers, Terriquez / Organized Labor and Educational Reform 239 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ 240 Educational Policy Dingerson, L. (2007). Organized teachers and parents: A powerful combination. Washington, DC: Center for Community Change. Retrieved September 1, 2008 at http://www.ccc- files.org/issues/education/partners/edu_secure/downloads/partnerhips_for_change_broch ure.pdf?page=descriptions. Early, S. (2004). Reutherism redux: What happens when poor workers’ unions wear the color purple? Labor Advocate Online. Retrieved February 5, 2008 from http://www.kclabor.org/ reutherism_redux .htm. Erickson, C. L., Fisk, C. L., Milkman, R., Mitchell, D. J. B., & Wong, K. (2002). Justice for janitors in Los Angeles: Lessons from three rounds of negotiations. British Journal of Industrial Relations, 40, 543-567. Fantasia, R. (1989). Cultures of solidarity: Consciousness, action, and contemporary American workers. Berkeley: University of California Press. Fine, J. (2005). Community unions and the revival of the American labor movement. Politics and Society, 33(1), 153-199. Frank, L., & Wong, K. (2004). Dynamic political mobilization: The Los Angeles County Federation of Labor. WorkingUSA: The Journal of Labor and Society, 8, 155-181. Frege, C., Heery, E., & Turner, L. (2003, January). Comparative coalition building and the revitalization of the labor movement. Paper presented at the Industrial Relations Research Association conference, Washington, DC. http://www.press.uillinois.edu/journals/irra/ proceedings2003/frege.html Gompers, S. (1893/1989). An address before the International Labor Congress in Chicago: What does labor want? In S. Kaufman and P. Albert (Series Eds.) The Samuel Gompers Papers: Volume 3. Unrest and Depression: 1891-94. (pp. 388-96) Chicago: University of Illinois Press. Lewis, J. (2006, December 7). The secret of his success. LA Weekly. Retrieved September 19, 2008, from http://www.laweekly.com/2006-12-07/news/the-secret-of-his-success/ McAdam, D., Tarrow, S., & Tilly, C. (2001). Dynamics of contention. New York: Cambridge University Press. Milkman, R. (2006). L.A. story: Immigrant workers and the future of the U.S. labor movement. New York: Russell Sage. Milkman, R. & K. Voss. (2004). Rebuilding labor: Organizing and organizers in the new union movements. Ithaca, NY: Cornell University Press. Nissen, B. (2004). The effectiveness and limits of labor-community coalitions: Evidence from South Florida. Labor Studies Journal, 29(1), 67-89. Noguera, P., Ginwright, S. E., & Cammarota, J. (2006). Beyond resistance! Youth activism and community change: New democratic possibilities for practice and policy for America’s youth. New York: Routledge. Oakes, J., & Rogers, J. (2006). Learning power: Organizing for education and justice. New York: Teachers College Press. Oakes, J. and Rogers, J. (2007). Radical change through radical democratic means: Organizing for equitable schools. Journal of Educational Change, 8, 193-206. Oakes, J., Rogers, J., Blasi, G., & Lipton, M. (in press). Grassroots organizing, social movements, and the right to high-quality education. Stanford Journal of Civil Rights and Civil Liberties. Orfield, G. & S. Eaton. (1996). Dismantling desegregation : The quiet reversal of Brown v. Board of Education. New York, NY: New Press. Orr, M. (2007). Community organizing and the changing ecology of civic engagement. In M. Orr (Ed.), Transforming the city: Community organizing and the challenge of political change (pp. 1-27). Lawrence: University Press of Kansas. at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ Rogers, J., & Oakes, J. (2005). John Dewey speaks to Brown: Research, democratic social movement strategies, and the struggle for education on equal terms. Teachers College Record, 107(9), 2178-2203. Seewer, J. (2007, April 15). Leader guides breakaway SEIU. San Mateo County Times. Retrieved November 1, 2008 from http://iw.newsbank.com/iw-search/we/InfoWeb?p_action=doc&p_ heme=aggdocs&p_topdoc=1&p_docnum=1&p_sort=YMD_date:D&p_product= AW N B & p _ d o c i d = 1 1 8 8 D 7 A 0 E 3 6 A 2 1 B 0 & p _ t e x t _ d i r e c t - 0 = d o c u m e n t _ i d = (%201188D7A0E36A21B0%20)&p_nbid=I61C61EVMTIyNjM4MTU5MS42MDgzNjQ6 MToxMDoxMjguOTcuMC4w Shirley, D. (2002). Valley interfaith and school reform: Organizing for power in south Texas. Austin: University of Texas Press. Tattersall, A. (2006). A little help from our friends: A framework for understanding when labor unions are likely to join long-term union-community coalitions. Union Ideas Network. Retrieved February 5, 2008 from http://uin.org.uk/dmdocuments/2006-10-16—23-35- tattersall%20a% 20little%20help%20from%20our%20friends%20distribute.pdf Tattersall, A., & Reynolds, D. (2007). The shifting power of labor-community coalitions: Identifying common elements of powerful coalitions in Australia and the U.S. WorkingUSA: The Journal of Labor and Society, 10(1), 77-102. Turner, L. (2007). An urban resurgence of social unionism. In L. Turner & D. Cornfield (Eds.), Labor in the new urban battlegrounds: Local solidarity in a global economy (pp. 1-20). Ithaca, NY: Cornel University Press. University of California, Los Angeles, Institute of Industrial Relations. (2006, February). Attitudes about labor unions: Los Angeles County residents. Los Angeles: Author. Voss, K., & Sherman, R. (2000). Breaking the iron law of oligarchy: Union revitalization in the American labor movement. American Journal of Sociology, 106, 303-349. Waldinger, R., Erickson, C. L., Milkman, R., Mitchell, D. J. B., Valenzuela, A., Wong, K., et al. (1998). Helots no more: A case study of the justice for janitors campaign in Los Angeles. In K. Bronfenbrenner, S. Friedman, R. W. Hurd, R. A. Oswald, & R. L. Seeber (Eds.), Organizing to win (pp. 102-119). Ithaca, NY: Cornell University Press. Warren, M. (2001). Dry bones rattling: Community building to revitalize American democ- racy. Princeton, NJ: Princeton University Press. Warren, M. (in press). Community organizing for educational reform. In M. Orr & J. Rogers (Eds.), Public engagement for public education. Palo Alto, CA: Stanford University Press. Wong, K., & Munoz, C. (2004). Don’t miss the bus: The immigrant workers’ freedom ride. New Labor Forum, 13(2), 61-66. John Rogers is an associate professor in UCLA’s Graduate School of Educationand Information Studies and the director of UCLA's Institute for Democracy, Education and Access (IDEA).Rogers also serves as the faculty co-director of UCLA's Principal Leadership Institute. He studies public engagement and community organizing as strategies for equity- focused school reform and democratic renewal. He draws extensively on the work of John Dewey to explore the meaning of, and possibilities for, democratic education today. Veronica Terriquez is a PhD candidate in the Department of Sociology at UCLA. Her research focuses on schooling inequalities, civic engagement in schools and labor unions, and immigrant integration. Rogers, Terriquez / Organized Labor and Educational Reform 241 at UNIV CALIFORNIA BERKELEY LIB on November 5, 2010epx.sagepub.comDownloaded from http://epx.sagepub.com/ << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize false /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true /ACaslon-Ornaments /AGaramond-BoldScaps /AGaramond-Italic /AGaramond-Regular /AGaramond-RomanScaps /AGaramond-Semibold /AGaramond-SemiboldItalic /AGar-Special /AkzidenzGroteskBE-Bold /AkzidenzGroteskBE-BoldIt /AkzidenzGroteskBE-It /AkzidenzGroteskBE-Light /AkzidenzGroteskBE-LightOsF /AkzidenzGroteskBE-Md /AkzidenzGroteskBE-MdIt /AkzidenzGroteskBE-Regular /AkzidenzGroteskBE-Super /AlbertusMT /AlbertusMT-Italic /AlbertusMT-Light /Aldine401BT-BoldA /Aldine401BT-BoldItalicA /Aldine401BT-ItalicA /Aldine401BT-RomanA /Aldine401BTSPL-RomanA /Aldine721BT-Bold /Aldine721BT-BoldItalic /Aldine721BT-Italic /Aldine721BT-Light /Aldine721BT-LightItalic /Aldine721BT-Roman /Aldus-Italic /Aldus-Roman /AlternateGothicNo2BT-Regular /Anna /AntiqueOlive-Bold /AntiqueOlive-Compact /AntiqueOlive-Italic /AntiqueOlive-Roman /Arcadia /Arcadia-A /Arkona-Medium /Arkona-Regular /AssemblyLightSSK /AvantGarde-Book /AvantGarde-BookOblique /AvantGarde-Demi /AvantGarde-DemiOblique /BakerSignetBT-Roman /BaskervilleBE-Italic /BaskervilleBE-Medium /BaskervilleBE-MediumItalic /BaskervilleBE-Regular /BaskervilleBook-Italic /BaskervilleBook-MedItalic /BaskervilleBook-Medium /BaskervilleBook-Regular /BaskervilleBT-Bold /BaskervilleBT-BoldItalic /BaskervilleBT-Italic /BaskervilleBT-Roman /BaskervilleMT /BaskervilleMT-Bold /BaskervilleMT-BoldItalic /BaskervilleMT-Italic /BaskervilleMT-SemiBold /BaskervilleMT-SemiBoldItalic /BaskervilleNo2BT-Bold /BaskervilleNo2BT-BoldItalic /BaskervilleNo2BT-Italic /BaskervilleNo2BT-Roman /Bauhaus-Bold /Bauhaus-Demi /Bauhaus-Heavy /BauhausITCbyBT-Bold /BauhausITCbyBT-Medium /Bauhaus-Light /Bauhaus-Medium /BellCentennial-Address /BellGothic-Black /BellGothic-Bold /Bell-GothicBoldItalicBT /BellGothicBT-Bold /BellGothicBT-Roman /BellGothic-Light /Bembo /Bembo-Bold /Bembo-BoldExpert /Bembo-BoldItalic /Bembo-BoldItalicExpert /Bembo-Expert /Bembo-ExtraBoldItalic /Bembo-Italic /Bembo-ItalicExpert /Bembo-Semibold /Bembo-SemiboldItalic /Berkeley-Black /Berkeley-BlackItalic /Berkeley-Bold /Berkeley-BoldItalic /Berkeley-Book /Berkeley-BookItalic /Berkeley-Italic /Berkeley-Medium /Berling-Bold /Berling-BoldItalic /Berling-Italic /Berling-Roman /BernhardModernBT-Bold /BernhardModernBT-BoldItalic /BernhardModernBT-Italic /BernhardModernBT-Roman /Bodoni /Bodoni-Bold /Bodoni-BoldItalic /Bodoni-Italic /Bodoni-Poster /Bodoni-PosterCompressed /Bookman-Demi /Bookman-DemiItalic /Bookman-Light /Bookman-LightItalic /Boton-Italic /Boton-Medium /Boton-MediumItalic /Boton-Regular /Boulevard /BremenBT-Black /BremenBT-Bold /CaflischScript-Bold /CaflischScript-Regular /Carta /Caslon224ITCbyBT-Bold /Caslon224ITCbyBT-BoldItalic /Caslon224ITCbyBT-Book /Caslon224ITCbyBT-BookItalic /Caslon540BT-Italic /Caslon540BT-Roman /CaslonBT-Bold /CaslonBT-BoldItalic /CaslonTwoTwentyFour-Black /CaslonTwoTwentyFour-BlackIt /CaslonTwoTwentyFour-Bold /CaslonTwoTwentyFour-BoldIt /CaslonTwoTwentyFour-Book /CaslonTwoTwentyFour-BookIt /CaslonTwoTwentyFour-Medium /CaslonTwoTwentyFour-MediumIt /CastleT-Bold /CastleT-Book /Caxton-Bold /Caxton-BoldItalic /Caxton-Book /Caxton-BookItalic /Caxton-Light /Caxton-LightItalic /CelestiaAntiqua-Ornaments /Centennial-BlackItalicOsF /Centennial-BlackOsF /Centennial-BoldItalicOsF /Centennial-BoldOsF /Centennial-ItalicOsF /Centennial-LightItalicOsF /Centennial-LightSC /Centennial-RomanSC /CenturyOldStyle-Bold /CenturyOldStyle-Italic /CenturyOldStyle-Regular /CheltenhamBT-Bold /CheltenhamBT-BoldItalic /CheltenhamBT-Italic /CheltenhamBT-Roman /Christiana-Bold /Christiana-BoldItalic /Christiana-Italic /Christiana-Medium /Christiana-MediumItalic /Christiana-Regular /Christiana-RegularExpert /Christiana-RegularSC /Clarendon /Clarendon-Bold /Clarendon-Light /ClassicalGaramondBT-Bold /ClassicalGaramondBT-BoldItalic /ClassicalGaramondBT-Italic /ClassicalGaramondBT-Roman /CMTI10 /CommonBullets /ConduitITC-Bold /ConduitITC-BoldItalic /ConduitITC-Light /ConduitITC-LightItalic /ConduitITC-Medium /ConduitITC-MediumItalic /CooperBlack /CooperBlack-Italic /CopperplateGothicBT-Bold /CopperplateGothicBT-BoldCond /CopperplateGothicBT-Heavy /CopperplateGothicBT-Roman /CopperplateGothicBT-RomanCond /Copperplate-ThirtyThreeBC /Copperplate-ThirtyTwoBC /Coronet-Regular /Courier /Courier-Bold /Courier-BoldOblique /Courier-Oblique /Critter /CS-Special-font /DextorD /DextorOutD /DidotLH-OrnamentsOne /DidotLH-OrnamentsTwo /DINEngschrift /DINEngschrift-Alternate /DINMittelschrift /DINMittelschrift-Alternate /DINNeuzeitGrotesk-BoldCond /DINNeuzeitGrotesk-Light /Dom-CasItalic /Dom-CasualBT /Ehrhard-Italic /Ehrhard-Regular /EhrhardSemi-Italic /EhrhardtMT /EhrhardtMT-Italic /EhrhardtMT-SemiBold /EhrhardtMT-SemiBoldItalic /EhrharSemi /ElectraLH-Bold /ElectraLH-BoldCursive /ElectraLH-Cursive /ElectraLH-Regular /EnglischeSchT-Bold /EnglischeSchT-Regu /ErasContour /ErasITCbyBT-Bold /ErasITCbyBT-Book /ErasITCbyBT-Demi /ErasITCbyBT-Light /ErasITCbyBT-Medium /ErasITCbyBT-Ultra /EUEX10 /EUFB10 /EUFB5 /EUFB7 /EUFM10 /EUFM5 /EUFM7 /EURB10 /EURB5 /EURB7 /EURM10 /EURM5 /EURM7 /EuropeanPi-Four /EuropeanPi-One /EuropeanPi-Three /EuropeanPi-Two /Eurostile /Eurostile-Bold /Eurostile-BoldExtendedTwo /Eurostile-ExtendedTwo /EUSB10 /EUSB5 /EUSB7 /EUSM10 /EUSM5 /EUSM7 /ExPonto-Regular /Fenice-Bold /Fenice-BoldOblique /FeniceITCbyBT-Bold /FeniceITCbyBT-BoldItalic /FeniceITCbyBT-Regular /FeniceITCbyBT-RegularItalic /Fenice-Light /Fenice-LightOblique /Fenice-Regular /Fenice-RegularOblique /Fenice-Ultra /Fenice-UltraOblique /FlashD-Ligh /Folio-Bold /Folio-BoldCondensed /Folio-ExtraBold /Folio-Light /Folio-Medium /FontanaNDEeOsF /FontanaNDEeOsF-Semibold /FormalScript421BT-Regular /Formata-Bold /Formata-MediumCondensed /FournierMT-Ornaments /FrakturBT-Regular /FranklinGothic-Book /FranklinGothic-BookItal /FranklinGothic-BookOblique /FranklinGothic-Condensed /FranklinGothic-Demi /FranklinGothic-DemiItal /FranklinGothic-DemiOblique /FranklinGothic-Heavy /FranklinGothic-HeavyItal /FranklinGothic-HeavyOblique /FranklinGothic-Medium /FranklinGothic-MediumItal /FranklinGothic-Roman /FrizQuadrataITCbyBT-Bold /FrizQuadrataITCbyBT-Roman /Frutiger-Black /Frutiger-BlackCn /Frutiger-BlackItalic /Frutiger-Bold /Frutiger-BoldCn /Frutiger-BoldItalic /Frutiger-Cn /Frutiger-ExtraBlackCn /Frutiger-Italic /Frutiger-Light /Frutiger-LightCn /Frutiger-LightItalic /Frutiger-Roman /Frutiger-UltraBlack /Futura /FuturaBlackBT-Regular /Futura-Bold /Futura-BoldOblique /Futura-Book /Futura-BookOblique /FuturaBT-Bold /FuturaBT-BoldCondensed /FuturaBT-BoldCondensedItalic /FuturaBT-BoldItalic /FuturaBT-Book /FuturaBT-BookItalic /FuturaBT-ExtraBlack /FuturaBT-ExtraBlackCondensed /FuturaBT-ExtraBlackCondItalic /FuturaBT-ExtraBlackItalic /FuturaBT-Heavy /FuturaBT-HeavyItalic /FuturaBT-Light /FuturaBT-LightCondensed /FuturaBT-LightItalic /FuturaBT-Medium /FuturaBT-MediumCondensed /FuturaBT-MediumItalic /Futura-ExtraBold /Futura-ExtraBoldOblique /Futura-Heavy /Futura-HeavyOblique /Futura-Light /Futura-LightOblique /Futura-Oblique /GalliardITCbyBT-Italic /GalliardITCbyBT-Roman /Garamond-Antiqua /Garamond-BoldCondensed /Garamond-BoldCondensedItalic /Garamond-BookCondensed /Garamond-BookCondensedItalic /Garamond-Halbfett /GaramondITCbyBT-Bold /GaramondITCbyBT-BoldCondensed /GaramondITCbyBT-BoldCondItalic /GaramondITCbyBT-BoldItalic /GaramondITCbyBT-BoldNarrow /GaramondITCbyBT-BoldNarrowItal /GaramondITCbyBT-Book /GaramondITCbyBT-BookCondensed /GaramondITCbyBT-BookCondItalic /GaramondITCbyBT-BookItalic /GaramondITCbyBT-Light /GaramondITCbyBT-LightCondensed /GaramondITCbyBT-LightCondItalic /GaramondITCbyBT-LightItalic /GaramondITCbyBT-LightNarrow /GaramondITCbyBT-LightNarrowItal /GaramondITCbyBT-Ultra /GaramondITCbyBT-UltraCondensed /GaramondITCbyBT-UltraCondItalic /GaramondITCbyBT-UltraItalic /Garamond-Kursiv /Garamond-KursivHalbfett /Garamond-LightCondensed /Garamond-LightCondensedItalic /GaramondThree /GaramondThree-Bold /GaramondThree-BoldItalic /GaramondThree-Italic /GaramondThreeSMSspl /GaramondThreespl /GaramondThreeSpl-Bold /GaramondThreeSpl-Italic /GarthGraphic /GarthGraphic-Black /GarthGraphic-Bold /GarthGraphic-BoldCondensed /GarthGraphic-BoldItalic /GarthGraphic-Condensed /GarthGraphic-ExtraBold /GarthGraphic-Italic /Geometric231BT-HeavyC /GeometricSlab712BT-BoldA /GeometricSlab712BT-ExtraBoldA /GeometricSlab712BT-LightA /GeometricSlab712BT-LightItalicA /GeometricSlab712BT-MediumA /GeometricSlab712BT-MediumItalA /Giddyup /Giddyup-Thangs /GillSans /GillSans-Bold /GillSans-BoldCondensed /GillSans-BoldItalic /GillSans-Condensed /GillSans-ExtraBold /GillSans-Italic /GillSans-Light /GillSans-LightItalic /GillSans-UltraBold /GillSans-UltraBoldCondensed /Gill-Special /Giovanni-Bold /Giovanni-BoldItalic /Giovanni-Book /Giovanni-BookItalic /Glypha /Glypha-Bold /Glypha-BoldOblique /Glypha-Oblique /Goudy /Goudy-Bold /Goudy-BoldItalic /Goudy-ExtraBold /Goudy-Italic /GoudyOldStyleBT-Bold /GoudyOldStyleBT-BoldItalic /GoudyOldStyleBT-ExtraBold /GoudyOldStyleBT-Italic /GoudyOldStyleBT-Roman /GoudySans-Bold /GoudySans-BoldItalic /GoudySansITCbyBT-Bold /GoudySansITCbyBT-BoldItalic /GoudySansITCbyBT-Medium /GoudySansITCbyBT-MediumItalic /GoudySans-Medium /GoudySans-MediumItalic /Granjon /Granjon-Bold /Granjon-BoldOsF /Granjon-Italic /Granjon-ItalicOsF /Granjon-SC /GreymantleMVB-Ornaments /Helvetica /Helvetica-Black /Helvetica-BlackOblique /Helvetica-Black-SemiBold /Helvetica-Bold /Helvetica-BoldOblique /Helvetica-Condensed /Helvetica-Condensed-Black /Helvetica-Condensed-BlackObl /Helvetica-Condensed-Bold /Helvetica-Condensed-BoldObl /Helvetica-Condensed-Light /Helvetica-Condensed-LightObl /Helvetica-Condensed-Oblique /Helvetica-Light /Helvetica-LightOblique /Helvetica-Narrow /Helvetica-Narrow-Bold /Helvetica-Narrow-BoldOblique /Helvetica-Narrow-Oblique /HelveticaNeue-BlackCond /HelveticaNeue-BlackCondObl /HelveticaNeue-Bold /HelveticaNeue-BoldCond /HelveticaNeue-BoldCondObl /HelveticaNeue-BoldExt /HelveticaNeue-BoldExtObl /HelveticaNeue-BoldItalic /HelveticaNeue-Condensed /HelveticaNeue-CondensedObl /HelveticaNeue-ExtBlackCond /HelveticaNeue-ExtBlackCondObl /HelveticaNeue-Extended /HelveticaNeue-ExtendedObl /HelveticaNeue-Heavy /HelveticaNeue-HeavyCond /HelveticaNeue-HeavyCondObl /HelveticaNeue-HeavyExt /HelveticaNeue-HeavyExtObl /HelveticaNeue-HeavyItalic /HelveticaNeue-Italic /HelveticaNeue-Light /HelveticaNeue-LightCond /HelveticaNeue-LightCondObl /HelveticaNeue-LightItalic /HelveticaNeueLTStd-Md /HelveticaNeueLTStd-MdIt /HelveticaNeue-Medium /HelveticaNeue-MediumCond /HelveticaNeue-MediumCondObl /HelveticaNeue-MediumExt /HelveticaNeue-MediumExtObl /HelveticaNeue-MediumItalic /HelveticaNeue-Roman /HelveticaNeue-ThinCond /HelveticaNeue-ThinCondObl /HelveticaNeue-UltraLigCond /HelveticaNeue-UltraLigCondObl /Helvetica-Oblique /HelvLight /Humanist521BT-Bold /Humanist521BT-BoldCondensed /Humanist521BT-BoldItalic /Humanist521BT-ExtraBold /Humanist521BT-Italic /Humanist521BT-Light /Humanist521BT-LightItalic /Humanist521BT-Roman /Humanist521BT-RomanCondensed /Humanist521BT-UltraBold /Humanist521BT-XtraBoldCondensed /Humanist777BT-BlackB /Humanist777BT-BlackItalicB /Humanist777BT-BoldB /Humanist777BT-BoldItalicB /Humanist777BT-ItalicB /Humanist777BT-LightB /Humanist777BT-LightItalicB /Humanist777BT-RomanB /ICMEX10 /ICMMI8 /ICMSY8 /ICMTT8 /ILASY8 /ILCMSS8 /ILCMSSB8 /ILCMSSI8 /Imago-Book /Imago-BookItalic /Imago-ExtraBold /Imago-ExtraBoldItalic /Imago-Medium /Imago-MediumItalic /Industria-Inline /Industria-InlineA /Industria-Solid /Industria-SolidA /Insignia /Insignia-A /IPAExtras /IPAHighLow /IPAKiel /IPAKielSeven /IPAsans /JoannaMT /JoannaMT-Bold /JoannaMT-BoldItalic /JoannaMT-Italic /KlangMT /Kuenstler480BT-Black /Kuenstler480BT-Bold /Kuenstler480BT-BoldItalic /Kuenstler480BT-Italic /Kuenstler480BT-Roman /KunstlerschreibschD-Bold /KunstlerschreibschD-Medi /Lapidary333BT-Black /Lapidary333BT-Bold /Lapidary333BT-BoldItalic /Lapidary333BT-Italic /Lapidary333BT-Roman /LASY10 /LASY5 /LASY6 /LASY7 /LASY8 /LASY9 /LASYB10 /LatinMT-Condensed /LCIRCLE10 /LCIRCLEW10 /LCMSS8 /LCMSSB8 /LCMSSI8 /LDecorationPi-One /LDecorationPi-Two /Leawood-Black /Leawood-BlackItalic /Leawood-Bold /Leawood-BoldItalic /Leawood-Book /Leawood-BookItalic /Leawood-Medium /Leawood-MediumItalic /LegacySans-Bold /LegacySans-BoldItalic /LegacySans-Book /LegacySans-BookItalic /LegacySans-Medium /LegacySans-MediumItalic /LegacySans-Ultra /LegacySerif-Bold /LegacySerif-BoldItalic /LegacySerif-Book /LegacySerif-BookItalic /LegacySerif-Medium /LegacySerif-MediumItalic /LegacySerif-Ultra /LetterGothic /LetterGothic-Bold /LetterGothic-BoldSlanted /LetterGothic-Slanted /Life-Bold /Life-Italic /Life-Roman /LINE10 /LINEW10 /Lithos-Black /Lithos-Regular /LOGO10 /LOGO8 /LOGO9 /LOGOBF10 /LOGOSL10 /LOMD-Normal /LubalinGraph-Book /LubalinGraph-BookOblique /LubalinGraph-Demi /LubalinGraph-DemiOblique /LucidaMath-Symbol /LydianBT-Bold /LydianBT-BoldItalic /LydianBT-Italic /LydianBT-Roman /LydianCursiveBT-Regular /Marigold /MathematicalPi-Five /MathematicalPi-Four /MathematicalPi-One /MathematicalPi-Six /MathematicalPi-Three /MathematicalPi-Two /Melior /Melior-Bold /Melior-BoldItalic /Melior-Italic /MercuriusCT-Black /MercuriusCT-BlackItalic /MercuriusCT-Light /MercuriusCT-LightItalic /MercuriusCT-Medium /MercuriusCT-MediumItalic /MercuriusMT-BoldScript /Meridien-Medium /Meridien-MediumItalic /Meridien-Roman /Minion-Black /Minion-Bold /Minion-BoldCondensed /Minion-BoldCondensedItalic /Minion-BoldItalic /Minion-Condensed /Minion-CondensedItalic /MinionExp-Italic /MinionExp-Semibold /MinionExp-SemiboldItalic /Minion-Italic /Minion-Ornaments /Minion-Regular /Minion-Semibold /Minion-SemiboldItalic /MonaLisa-Recut /MSAM10 /MSAM10A /MSAM5 /MSAM6 /MSAM7 /MSAM8 /MSAM9 /MSBM10 /MSBM10A /MSBM5 /MSBM6 /MSBM7 /MSBM8 /MSBM9 /MTEX /MTEXB /MTEXH /MTGU /MTGUB /MTMI /MTMIB /MTMIH /MTMS /MTMSB /MTMUB /MTMUH /MTSY /MTSYB /MTSYH /MTSYN /MusicalSymbols-Normal /Myriad-Bold /Myriad-BoldItalic /Myriad-CnBold /Myriad-CnBoldItalic /Myriad-CnItalic /Myriad-CnSemibold /Myriad-CnSemiboldItalic /Myriad-Condensed /Myriad-Italic /Myriad-Roman /Myriad-Sketch /Myriad-Tilt /NeuzeitS-Book ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 1200 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox false /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /CreateJDFFile false /SyntheticBoldness 1.000000 /Description << /FRA <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> /JPN <FEFF3053306e8a2d5b9a306f30019ad889e350cf5ea6753b50cf3092542b308000200050004400460020658766f830924f5c62103059308b3068304d306b4f7f75283057307e30593002537052376642306e753b8cea3092670059279650306b4fdd306430533068304c3067304d307e305930023053306e8a2d5b9a30674f5c62103057305f00200050004400460020658766f8306f0020004100630072006f0062006100740020304a30883073002000520065006100640065007200200035002e003000204ee5964d30678868793a3067304d307e30593002> /DEU <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> /PTB <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> /DAN <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> /NLD <FEFF004700650062007200750069006b002000640065007a006500200069006e007300740065006c006c0069006e00670065006e0020006f006d0020005000440046002d0064006f00630075006d0065006e00740065006e0020007400650020006d0061006b0065006e0020006d00650074002000650065006e00200068006f0067006500720065002000610066006200650065006c00640069006e00670073007200650073006f006c007500740069006500200076006f006f0072002000650065006e0020006200650074006500720065002000610066006400720075006b006b00770061006c00690074006500690074002e0020004400650020005000440046002d0064006f00630075006d0065006e00740065006e0020006b0075006e006e0065006e00200077006f007200640065006e002000670065006f00700065006e00640020006d006500740020004100630072006f00620061007400200065006e002000520065006100640065007200200035002e003000200065006e00200068006f006700650072002e> /ESP <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> /SUO <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> /ITA <FEFF00550073006100720065002000710075006500730074006500200069006d0070006f007300740061007a0069006f006e00690020007000650072002000630072006500610072006500200064006f00630075006d0065006e00740069002000500044004600200063006f006e00200075006e00610020007200690073006f006c0075007a0069006f006e00650020006d0061006700670069006f00720065002000700065007200200075006e00610020007100750061006c0069007400e00020006400690020007300740061006d007000610020006d00690067006c0069006f00720065002e0020004900200064006f00630075006d0065006e00740069002000500044004600200070006f00730073006f006e006f0020006500730073006500720065002000610070006500720074006900200063006f006e0020004100630072006f00620061007400200065002000520065006100640065007200200035002e003000200065002000760065007200730069006f006e006900200073007500630063006500730073006900760065002e> /NOR <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> /SVE <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> /ENU <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> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_bh2srh2ffvdh7e62p3dsutan6q	----	Efficiency of Justice and Economic Systems Procedia Economics and Finance 17 ( 2014 ) 104 – 112 2212-5671 © 2014 The Authors. Published by Elsevier B.V. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/). Selection and peer-review under responsibility of the Organizing Committee of IES 2013. doi: 10.1016/S2212-5671(14)00884-3 ScienceDirect Available online at www.sciencedirect.com Innovation and Society 2013 Conference, IES 2013 Efficiency of Justice and Economic Systems Marilene Lorizioa*, Antonia Rosa Gurrieria a Department of Law, University of Foggia, Largo Papa Giovanni Paolo II, 71100 Foggia, Italy Abstract The growth of an economy depends not only on economic factors, but also on institutions, the citizens' trust in them, by the sharing of values and expectations. The differences between public policies and institutions are often regarded as one of the key explanations of the wide differences in levels and growth rates of per capita across countries. Among the institutions that have the greatest impact on economic performance, the legal and judicial system plays a prominent role. Understanding how laws and regulations affect economic behaviour is fundamental in modern economies and the economy facilitates the identification of those that are, in each country system, the incentives to the litigation, the process of litigation itself and the costs, in order to verify the distributive impact of the different legal and judicial systems and what features they should have to encourage economic growth. The operation of a legal system may impact on many dimensions of development: equity, the optimal allocation of resources, and the increase in total factor productivity. Moreover, the role of the judicial system in determining its dysfunctions can affect economic growth. In fact, Italian economic growth has been and is definitely hampered by the length a s well as by the civil and criminal justice processes, which reduces legal certainty and confidence, increases the risk of economic activities and therefore reduces the propensity to invest. The Italian judicial system has many efficiency and organization problems, resulting in a lack of its credibility. These are very intricate, and are the product of a mixture of features that are very difficult to isolate. The aim of this work is to assess the ways in which the administration of justice in Italy influences the choices and behaviours of the two main economic actors - households and businesses - analysing if there is any (a) symmetry in their preferences. In fact, there are many factors that determine the failure of Italian justice, and among these also the users of the justice services produce a collapse in justice system when they take legal actions only for postponing a payment or avoiding an obligation. Thus, the source of the problem and its resolution could be identified in the distorted incentives generated by all of the rules connected with the process. © 2014 The Authors. Published by Elsevier B.V. Selection and peer-review under responsibility of the Organizing Committee of IES 2013. Keywords: K00- general; K410-litigation process a* Corresponding author. Tel.: +39-0881-582246; fax: +39-0881-582215. E-mail address: marilene.lorizio@unifg.it © 2014 The Authors. Published by Elsevier B.V. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/). Selection and peer-review under responsibility of the Organizing Committee of IES 2013. http://crossmark.crossref.org/dialog/?doi=10.1016/S2212-5671(14)00884-3&domain=pdf 105 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 Economic growth depends on economic factors, institutions and the level of trust citizens have in institutional powers. The differences between public policies and institutions can also explain the differences in per-capita growth level between Countries. Scully (1988) demonstrates that countries with a good level of institutions, in terms of stability and per capita measurement, grow faster than those with a low level of institutions. Economic performances are influenced by the legal and judicial system, capable of forming the rules of the game. Every society is governed by a set of rules that operate within a framework of formal legal institutions - tangible structures and codified norms - and informal ones, such as customs, habits, informal rules, moral codes, routine etc. Understanding how laws and regulations affect economic behaviour (choices) is fundamental in modern economies. Moreover, an economy facilitates the identification of those aspects that are, in each country system, the incentives to litigation, the process of litigation itself and the costs, in order to verify the distributive impact of the different legal and judicial systems and what features they should have in order to encourage economic growth. The importance of the rules and their relevance for the economic growth is also widely acknowledged in academic and institutional framework, and the role of judicial systems in determining economic performance has achieved ever more consideration in recent years. This is demonstrated by the research of many international organizations (World Bank, IMF). Numerous empirical analysis generally agree that quantitative and statistically significant effects of the "quality" of the right are the main indicators of economic performance of a country. Indeed, a legal system can affect different dimensions of the development process. These are equity, the optimal allocation of resources, and the increase in total factor productivity. In addition, some aspects of the legal system may influence the behaviour and choices of economic actors, determining the accumulation of physical and human capital (decisions relating to investment and training). Thus, the role of the judicial system in determining its dysfunctions can affect economic growth. It is hard to identify a structure of indicators of the quality and efficiency of justice. In this direction, the Cepej report highlights mainly the problem of the length of the processes. In fact, the excessive length of civil proceedings does not guarantee adequate protection of many contracts. Actually, Italian economic growth has been, and still is, definitely hampered - by purely economic intrinsic factors, - by the length of the civil and criminal justice processes, as well as by the processes themselves, which reduces legal certainty and confidence, increases the risk of economic activities and therefore reduces the propensity to invest. The quality of a judicial system can be estimated in numerous expressions: the length and the quality of the judgments, the efficient use of public resources, and the opportunity of access to justice for all citizens. Among the reasons of impediments of justice, the literature indicates the level of formality of procedures (Djankov et al., 2003), organizational structures, the method of work within the judicial offices (Zan, 2006) and the incentives of the parties engaged in service provision, especially judges and lawyers (Marchesi, 2003; Buscaglia and Dakolias, 1999). In literature, institutional interaction (new institutional economics) starts with Williamson (1975; 2000) who believes that transaction is only a bilateral relation. Only later does he connect transaction cost theory with relational contracts and fundamental transformation. After 1980, neoclassical theory moves from the monopolistic paradigm in favour of the liberalization of public utilities. At this stage we can assist in the development of the relations between public sector activities and private ones. Unfortunately, the binomial public-private relationship does not produce the expected results. The reintroduction (Menrad, 2004; North, 2005) of new institutional economics reveals that institutions are able to explain economic transformations and performances through a comparative analysis. The active actors in this process are entrepreneurs, employees and others, excluding the legislative figures. Personal maximization and limited rationality are at the base of the movement and institutional and contractual coordination are the mechanisms of the process. Thus, it is rather difficult to identify the factors that help justice to operate efficiently. In fact, the main problem is the lack of market benchmarks, which are able to determine the right-price of the services offered and the factors used. It is also difficult to identify good indicators of performance for the Justice Sector. In fact, the same factors are always considered both for performance indicators or inputs sector productivity. Thus, efficiency coincides with productivity, however this is not always true and is potentially dangerous. Certainly productivity and efficiency are interrelated, because both are related to the resources available to the sector, but at the same time they present very different characteristics. 106 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 However, the main problem concerns the criteria needed to measure them. An indicator of productivity could be the distribution of the resources of justice; a possible indicator of this is given by the percentage of positions for magistrates left vacant by district. An additional indicator may be the number of cases allotted per magistrate and the distribution of the judiciary resources for the persecution of various crimes. Currently, the allocation of resources in the sector is through rationing and queues, which are patently inefficient criteria. In general, allocation processes that do not use the price system are neither transparent nor efficient. Therefore, economic efficiency is the ability of the courts to make fair, predictable and timely decisions. All these attributes act as an incentive for investment, growth and technological progress. Shleifer and Vishny (1997) argue that the quality/efficiency of a judicial system could be estimated on the frequency with which people resort to it, instead of evaluating the alternative mechanisms for conflict resolution. In practice, the frequency of litigation is an indicator to the proper functioning - or not - of the justice sector and, indirectly, to its impact on the choices of economic agents. Many studies have shown that the inefficiency of justice in the South of Italy is produced by the supply side, and is detectable in a disproportionate number of judges rather than in the amount of processes that they are capable of defining. On the other hand, in the rest of the country, inefficiency is mainly influenced by the importance of the load of criminal cases that have not been disposed of in prior periods. We take the view that, in the south especially, the demand for justice coming from the territory exerts a considerable influence on the in/efficiency of justice; it is measured by the number of cases registered, and tied to the rate of litigation, so the inefficiency of Southern justice also takes place on the demand side and has a high social weighting. So, the operation of the civil justice system is negatively affected by high litigation, concentrated in certain subjects and geographical areas. Moreover, the multi-dimensionality of good-justice is underlined by the fact that it takes on the role of both the output of its production function - it is our intention to try to build on this in subsequent studies – and that of the input in the economic model that seeks to measure the social capital of a nation. Many studies on social capital show how an imperfect justice system translated into an (distorted) incentive can lead to irregular/illegal behaviours, slowing the formation of networks of mutual trust. Therefore the existence of negative reciprocal externalities between slow justice and inefficient economic system is hypothesized. The hypothesis is that the slow pace of justice will damage the efficiency of the economic system because it reduces the opportunities for the protection of the injured party, who sees the increase of the opportunity cost related to the expectation of the end of the process. At the same time, the guilty party instead sees an increase in the likelihood of a favourable transaction or even the relinquishment of protection by the same plaintiff. The duration of the process also provides useful information on the system of penalties in force, that impacts also on the accumulation of social capital. If the demand for justice is artificially expanded, the resulted uncertainty of protection implies partially hidden charges, but which are costly to the community. Therefore, the inefficiency of the civil justice translates into uncertainty, which is a powerful factor of friction in the functioning of an economy, as well as injustice. When this uncertainty produced by the inefficiency of justice is combined with a growing distrust in justice itself, it turns into a consistent friction factor in the functioning of the economy. In this respect, the Bank of Italy shows that the annual loss in gross national product attributable to the defects of our civil justice may come to a percentage point. In Italy, in fact, the slow pace of justice involves both social costs-i.e. a poor service to the community – and economic costs compared to the need for legal certainty of the economic system as a whole. These serious diseconomies are aggravated by direct costs to the public budget, because the State is obliged to ensure equitable relief in favour of those who have had to endure the unreasonable length of time for civil or criminal process. It has been also highlighted that its slow pace of justice represents one of the main constraints to foreign investment in Italy. In addition, the slow pace of justice accentuates regional disparities. In fact, in regions where there is a higher number of pending cases, the bank interest rates are higher, because of the connected uncertainty, thus determining difficulties in accessing credit. The credit crunch in turn leads to a contraction of private investments, a reduced economic growth and an increase in unemployment and crime. These elements do not create a favourable climate or a regulatory framework conducive to business activity. Therefore, the performances of the judicial system affect the results of commercial litigation, the certainty of property rights, the quality of legislation, and the development of criminal activities. In addition, an inefficient justice system leads to an increase in transaction costs related to the lack of mechanisms that ensure compliance with the legal rights and obligations. Finally, there was also a dearth of reliable information about the credibility and 107 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 reputation of the justice system of the country, or at least distorted information, incomplete and focused mainly on the problems of the sector, which certainly acts as a deterrent to decisions of investment by both domestic and foreign operators, producing negative effects on economic growth processes. Consequently, dysfunctional judicial systems may discourage saving, and increase capital flight, decreasing the amount of funds available to finance investment. Instead, well-functioning judicial systems promote growth and encourage a more rapid accumulation of factors of production. Above all, investment in both physical and human capital will be supported by secure property rights, well-functioning legal and judicial systems and political stability (Schmidt-Hebbel et al, 1996 and Alesina and Perotti 1994). Among all the institutions, the market most requires a reliable justice, well functioning. This is necessary because the market consists of a set of relationships, agreements, and connections among people, which are based on trust. In fact, the existence of a healthy justice system activates a process of self-respect that in turn feeds a greater efficiency; the reputation so conquered represents a further incentive to the respect of the contracts, thereby reducing a further distorting element of efficiency, given by the presence of incentives to opportunism. Generally speaking, the reduced competitiveness of our firms is due to fragility of our production system that makes it weak in front of the new competitive environment. These deficiencies depend on internal factors of a firm - such as the small size and limitations connected with familial management models - and on external factors. Such devices include a complex and uncertain regulatory framework, the excessive length of judicial procedures, the weight of bureaucracy and the inadequacy of a protection contracts’ system. A justice clogged and slowed down leads the economic system and firms to behave in an economically inefficient way, because the choices are intended to minimize the uncertainty represented by a process. The consequence is a reduction in competitiveness. The choices of firms pursue not only the criteria of economic efficiency, but they aim to avoid the consequences of a malfunction of the justice system (distortion of incentives). In this way the inefficiency of justice results in inefficiency in the choices of economic agents. In Italy, disincentives arising from the failure of justice in the economic system are numerous: contraction of start-ups (discouragement effect); the preference for the small size, which erodes the competitiveness of the national production system (dimensional effect); the tendency to the "loyalty of partnership" in trade relations (inefficiency in seizing the opportunities offered by a competitive system); frequent recourse to forms or business combinations in which the contract will be fulfilled by forms of punishment other than civil justice, such as reputation, sharing suppliers/information technologies, belonging to the same chain (management inefficiency); tendency of firms to integrate vertically and a system translate into an additional cost to the country's economy, which is identified in lower investment, the phenomena of freezing of capital, excessive use of the banking system. Summarizing, because contract and property rights are not appropriately enforced, firms may decide to not pursue a number of activities, to relinquish the opportunity to specialize and exploit economies of scale, to combine inputs inefficiently, not to allocate production in the most efficient way, keep resources unemployed etc. The selected period is 2003-2011. This choice is due both to the complete information about the involved variables, and to the idea to evaluate the crisis effects. In this stage we consider only two effects of justice’s length: discouragement effect and dimensional effect. In this section we use also the industrial dimensional class 20-49 because, analysing data, we notice some peculiarities in the dimensional dynamic of this category. For describing this phenomenon we compare the fixed base index numbers - with percentage base, of the following variables. Actually we are still studying this phenomenon, but in this work we offer some ideas about it. 108 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 Source: own elaborations on ISTAT, Justice Department and Bank of Italy Fig. 1: Trend among CPL, TF and F1 (observed and indexed data) 109 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 Source: own elaborations on ISTAT data Fig. 2: New procedures, Total number of firms and Firms 20-49 (observed and indexed data) 110 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 In figure 1 we observe the relation between civil processes’ length (CPL- average days, Bianco et al., 2007) and the total number of industrial firms (TF – number and indexed number) and the industrial dimensional class 20-49 (F1- number and indexed number). The variable CPL is growing with some exceptions connected with some reforms in civil justice. Both the other variables, TF and F1, are in line, and they register a very limited increasing for the period, the only exception is a small decrease in 2011, probably connected to the crisis. In figure 2 we evaluate, for the selected period, the trend among the new legal actions (LLA - indexed number), as an indicator of the length of justice, and TF and F1. Obviously, both TF and F1 present the same trend of figure 1. The variable LLA presents a trend quite in line with CPL. We explain this peculiarity because the less LLA, the higher speed in closing the existing proceedings. This work is a primary study of a wider project that analyses a wider range of variables in order to demonstrate the effects of an inefficient judicial system on an economic productive system. We are still collecting data from different sources. We know that there is a lack of good statistical information but we hope to statistically supporting our idea using more and interesting variables. The selected variables were ready-references. We calculated Pearson and Spearman coefficients, but the results were not totally significant. Therefore, we prefer only to describe the meaning of the work using few variables. With respect to the size of a firm, there are many ways in which the inefficiency of justice can affect the dimension of the business. Generally the performance of the judicial system may influence several features of firms’ performance like employment, investment, organizational paradigm, and contractual relationships with counterparts, all of which have an effect on firm size. According to the literature, an inefficient justice implies a smaller average size of firms. Kumar, Rajan and Zingales (1999), point out that in Western European countries, superior judicial systems are connected with significant average firm size. Moreover, Beck, Demirg-Kunt and Maksimovic (2006) analysing the largest industrial firms in 44 countries, demonstrate that firm size is positively related with institutional progress. The size of Italian firms is on average 40 % smaller than other European countries. The undersized firms are considered a disadvantage of the Italian productive system and the main source of the Italian low productivity and GDP growth. Furthermore, justice efficiency in Italy is very weak, according to the World Bank’s Doing Business report. This inefficiency is largely associated to the excessive length of judicial proceedings. Indeed, the excessive length of judicial proceedings decreases contract enforcement. Above all, an inefficient judicial system has an effect on investment choices by firms and in this way it influences firm size. In fact, imperfect contract enforcement amplifies the risks associated to the contracts and this can result in less investment and less growth occasions. Moreover, the performance of justice can determine the employment decisions of firms through its effects on the enforcement of employment legislation. In addition, to avoid the high transaction costs related to reduced enforceability of contracts, firms tend to vertically integrate. Finally, in response to the poor enforceability of contracts, firms are less disposed to interact with new partners and tend to intensify reliance on relational contracts. These relational contracts usually produce barriers to entry for new firms that are commonly smaller than incumbent ones, thus decreasing average firm size (Johnson et al., 2002). So, domestic enterprises need to avoid the uncertainties, the costs and times associated with any litigation, and therefore perform economically inefficient choices. Business decisions involve a reduced demand for justice, while non-entrepreneurs perform opposite choices. There is a sort of gap in the demand for justice by families (characterized by high litigation, resulting in the crowding of the courts) and companies (which have avoiding lawsuits among their primary objectives). Therefore, the uncertainty acts as an incentive on the two types of users (individuals and firms) in the opposite way: in fact, while it represents an unknown cost that it is best to avoid as much as possible for businesses, it is an input to opportunistic behaviour on the part of private enterprises, who rely on a long and not foreseeable time that characterizes its administration in order to postpone their contractual obligations. At the base of the choices, there is a common factor represented by the distrust of the proper administration of justice. In Italy, a considerable portion of the demand of justice is pathological because there is no request to the courts to resolve legal and uncertain difficulties, but to obtain economic advantages by exploiting the inefficiency of the system. Among the reasons that support this type of demand and determine incentives to engage in a process rather than executing own obligations, we have a positive differential between the market interest rate and the legal rate of 111 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 interest. Moreover, the legal rules for distributing the costs of the proceedings are not adequately penalizing for the loser person. The numerous recourses to the courts seem originated from a phenomenon known in literature as moral hazard: people are pushed to engage in hazardous activities when there is a high chance that the costs associated with a negative outcome from falling on society. Our attention has focused also on two interrelated aspects: i. the ways in which an inefficient justice system affects the functioning of the credit system and the relative cost (interest rate), as well as the effects that the increase in these costs exerts on the amount of domestic investment, thereby undermining the potential growth of the country; ii. the ways in which an ineffective justice system is a deterrent to foreign investment, thus compromising the territorial competitiveness of the country. A series of panel surveys on the functioning of justice in the Italian provinces (Felli et al, 2007), shows that credit is more rationed in Italian provinces with more ongoing or pending processes. This result is witnessed by some international studies that insert between the proxies of justice inefficiency, the amplitude of mortgage markets. The effect associated with this restriction is given by the increase in interest rates, and its result is widespread in geographic areas characterized by a slower justice, since the level of interest rates are also the result of competition among lenders. The interest rates are charged by the credit system incorporating "slow" justice and when the costs associated with legal proceedings necessary to enforce receivables grow, the conditions applied to mortgages are heavier. In fact, in decisions relating to the different loan conditions, banks seem to consider the probable costs to be faced in the event that the subsidized subject is in default. This widespread tendency produces a crowding out of private investments and the multiplier associated effects. This result is even more critical in a globalized context, where companies are multinational and tend to break away from the territory of reference and lose the direct connection with a specific ordering of the State. It implies the occurrence in time of opportunity to “choice” law. In this way, states are obliged to confront and compete also in economic terms, with respect to which, reference is made to the judgment delivered by the rating agencies on a range of economic/financial parameters, even in legal terms. The perception of market participants on the functionality of public administration, the effectiveness of legal instruments, and the timeliness of administrative and judicial decisions are of strategic importance. At present the benchmarks related to this competitive process between jurisdictions does not appear in our favour. The costs and timing of our justice system are high and uncertain, and the consequences are spread throughout the country. A further disincentive to foreign investment would seem to lie in the lack of political credibility of a country, as perceived by both the private sector and externals, as already documented in some reports of the World Bank (it is revealed that the countries with a high perception of credibility have high levels of investment and vice versa). Therefore, legal uncertainty − linked to the problems of efficiency of the justice system− and institutional uncertainty − linked to the credibility of national policies − end up making unstable rules of the game. Greater efficiency in the administration of justice can be obtained primarily by solving the problem in the stock of arrears to be disposed of. To this end, the actions to be taken should include measures of deflation procedures, adjustment of the workforce, and redefinition of the areas of territorial jurisdiction. Institutional reform also seems necessary, especially in civil trials, which eliminates the strong incentives that force stakeholders today into behaviours that induce the lengthening of the process. A way to discourage individuals from appeals to justice should be identified, even for less relevant cases, which aggravate the cost and promote further alternative forms of administration of justice. Perhaps the relative deterrence should be practiced also against lawyers who sponsor these types of disputes. In the light of the current economic crisis, the even higher costs - monetary, social and economic - referring to the justice sector and associated with a significant inefficiency of the same, make the need for reform ever more stringent in order to aim at making t he justice system efficient, rapid, reliable and accessible to all. Moreover, as in public services sectors, management also focuses on the standardization of certain production processes (ratings/processes/ discussions/hearings), ensuring the same quality of related services. In general, the three conditions necessary for a more efficient management of all public services - including justice - are represented by the measurement of performance, transparency and meritocracy. This involves adopting a particular perspective of the concept of “justice services” and accepts the hypothesis to estimate its comparative costs at the local level (benchmark). The delays and inefficiencies that characterize the justice system have been transformed from a right recognized, protected and 112 Marilene Lorizio and Antonia Rosa Gurrieri / Procedia Economics and Finance 17 ( 2014 ) 104 – 112 guaranteed to all citizens to an object of consumption of the same, for which the rates of litigation seem to grow in proportion to the time of justice. This circumstance has transformed the citizen from justice user to consumer of justice, aggravating the possibilities of governance of the system. Generally, legal reforms are not produced exogenously, expressing the interest of some groups in society. Therefore, it is necessary to identify which are the conditions that lead a country to carry out legal reform. These vary according to the composition of a society, the distribution of income and the need to protect the property rights. The justice reform must first restore to the sector its dignity as a public provision constitutionally protected and, above all, at the service of all citizens, defined as users and not as consumers of a good that cannot be traded on markets. Finally, any reform must be the result of a legal, healthy culture and of responsible ethics. The future sector will be self-critical, suitable to adapt and experiment (i.e. not resistant to change), prepared to proceed from a system designed to satisfy the producers of justice to one intended to benefit its users and thus act as a driving force for the economic progress, ethical and social development of the country. References Alesina, A., Perotti, R., 1994. The political economy of growth: a critical survey of the recent literature. The World Bank Economic Review, vol. 8, no. 3. Beck, T., Demirguc-Kunt, A., Maksimovic, V., 2006. The influence of financial and legal institutions on firm size, Journal of Banking & Finance, Elsevier, vol. 30(11), pages 2995-3015, November. Bianco, M., Giacomelli, S., Giorgiantonio, C., Palumbo, G, Szego, B., 2007. La durata (eccessiva) dei procedimenti civili in Italia: offerta, domanda o rito? Rivista di Politica Economica, vol. 97, serie III, fascicolo IX-X.). Buscaglia, E, Dakolias, M., 1999. Comparative International Study of Court Performance Indicators. The World Bank, Legal Department. Djankov, S., La Porta, R., Lopez de Silanes, F. e Shleifer, A., 2003. Courts, Quarterly Journal of Economics, 453-517. Felli, L., Tria, G., Londono-Bedoya, D., Solferino, N., 2007. The “Demand for Justice” in Italy: Civil Litigation and the Judicial System. In: Padovano F., Ricciuti R. (eds.), Italian Institutional Reforms. A Public Choice Perspective. New York: Springer, pp. 155-177. Johnson S., McMillan J., Woodruff C., 2002, Courts and Relational Contracts, Journalof Law, Economics and Organization, n. 1. Kumar, K., Rajan, R., Zingales, L., 1999. What Determines Firm Size, NBER, WorkingPaper, n. 7208. Marchesi, D., 2003. Litiganti, avvocati e magistrati: Diritto ed economia del processo civile. Il Mulino. Menard, C., 2004. The Economics of Hybrid Organizations. Journal of Institutional and Theoretical Economics 160, 345-370 North, D.C., 2005. Institutions and the Performance over Time, Dordrecht, Springer. Schmidt-Hebbel, K., Servén, L., Solimano, A., 1996. Saving and investment: paradigms, puzzles, policies. The World Bank Research Observer, vol. 11, no. 1. Scully, G. W., 1988. The institutional framework and economic development. Journal of Political Economy 96, no. 3. Shleifer, A,. Vishny, R.W., 1997. A Survey of Corporate Governance. The Journal of Finance 52, 2, 737-783. Williamson, O., 1975. Market and Hierarchies. Analysis and Antitrust Implications. New York , Free Press. Williamson, O. E., 2000. The New Institutional Economics: Taking Stock, Looking Ahead. Journal of Economic Literature 38, 595-613. Zan, S., 2006. Il sistema organizzativo della giustizia civile in Italia: caratteristiche e prospettive, Quaderni di giustizia e organizzazione, n. 1. 
work_bhne6equxnbdjirsg7lbkugzoa	----	© Koninklijke Brill NV, Leiden, 2013 DOI 10.1163/17455243-4681035 Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 brill.com/jmp JOURNAL OF MORAL PHILOSOPHY When Justice Demands Inequality John Thrasher* Department of Philosophy, University of Arizona jthrashe@email.arizona.edu Keith Hankins** Department of Philosophy, University of Arizona Department of Economics, Rutgers University Hankins@email.arizona.edu Abstract In Rescuing Justice and Equality G.A. Cohen argues that justice requires an uncompromising commitment to equality. Cohen also argues, however, that justice must be sensitive to other values, including a robust commitment to individual freedom and to the welfare of the community. We ask whether a commitment to these other values means that, despite Cohen’s commitment to equality, his view requires that we make room for inequality in the name of justice? We argue that even on Cohen’s version of egalitarianism equality, freedom, and welfare are not always compatible. Justice will require trade-offs between these values. Sometimes, equality will need to be sacrificed. This is a surprising result and to show it, we use two informal impossibility proofs drawn from examples in Rescuing Justice and Equality. Keywords G.A. Cohen; Egalitarianism; Impossibility Proof; John Rawls; Amartya Sen In Rescuing Justice and Equality, G.A. Cohen argues that justice requires an uncompromising commitment to equality.1 Cohen also argues, however, that justice must be sensitive to other values, including a genuine concern for individual freedom and the welfare of the community. Our question is * John Thrasher is currently a Ph.D. candidate in philosophy at the University of Arizona specializing in political philosophy and normative ethics. He has published papers on con- tractarianism, Epicurus, social evolution, and the virtue of justice. ** Keith Hankins is a Ph.D. candidate in philosophy at the University of Arizona and is currently pursuing graduate studies in economics at Rutgers University. He works in politi- cal philosophy, social choice theory, and game theory. 1 This work is the product of both authors equally. The ideas were conceived of and developed in conversations over a period of several months. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 2 DOI 10.1163/17455243-4681035 whether the sensitivity of justice to values other than equality entails that we must sometimes make room for inequality in the name of justice. One of Cohen’s central claims in Rescuing Justice and Equality is that there is no inherent tension between freedom, equality, and Pareto (wel- fare).2 All three values, Cohen argues, are co-achievable. The purported tension between them, what he calls the Trilemma Argument, relies on the premise that people are not driven by sufficiently egalitarian motives. Cohen is concerned to dissolve the trilemma because it threatens the tight connection between justice and egalitarianism. If equality can only be pur- chased at the price of either freedom or welfare, it seems less attractive. Cohen’s argument rests on the claim that our motivational sets are not fixed. If “people believe in equality,” there is no real trilemma and, accord- ingly, our reasons for licensing inequality in the name of justice lose their force. Cohen refers to this idea—that justice requires us to adopt an egali- tarian ethos—as the Ethical Solution, and he suggests that it is capable of dissolving any worries that the trilemma argument presents for his brand of egalitarianism. We argue that Cohen’s understanding of what justice requires leaves little room for the commitment to individual freedom that lies at the heart of liberalism which he claims to share (even if he disagrees with liberals about its implications). As such, refusing to temper the demands of equal- ity generates manifestly unjust consequences. Although Cohen’s claim that justice requires individuals to adopt an egalitarian ethos has received much attention,3 our argument departs from other discussions of Cohen insofar as our aim is to show that, even by his own lights, Cohen’s Ethical Solution is not successful. We discuss the Trilemma Argument in §1 and the Ethical Solution in §2. There we suggest that the Ethical Solution fails by developing an informal impossibility proof drawn from an example that Cohen uses to illustrate his argument. Cohen’s proposed resolution of the trilemma implies that for an individual to be free she must be able to make at least some choices in 2 Cohen’s use of “Pareto” sometimes obscures the fact that “Pareto” is not itself a value, but rather a principle that governs how we ought to evaluate different states that are meas- ured in terms of welfare, levels of preference satisfaction, or some other metric. The tension that Cohen is concerned with then is between freedom, equality, and ways of promoting welfare. 3 See especially Michael Titelbaum who agrees with Cohen that Rawls has good reasons to accept that justice requires individuals to adopt a certain ethos, but argues that such an ethos would not look like the one Cohen sketches. Michael G. Titelbaum, ‘What Would a Rawlsian Ethos of Justice Look Like?,’ Philosophy & Public Affairs, 36 (2008), pp. 289–322. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 3 accordance with her own beliefs and values. The idea that individuals must have space to live their own lives is further supported by his discussion of personal prerogatives and the role that appeals to these prerogatives play in justifying our practices. Each person, he argues, has “the right to be something other than an engine for the welfare of other people: we are not nothing but slaves to social justice.”4 In §3, we argue that Cohen’s discus- sion of prerogatives and his concern with dissolving the trilemma shows that costs to individual freedom are not easily borne—even for an egalitar- ian as uncompromising as Cohen. If the Ethical Solution fails then, as we argue it does, then Cohen cannot have all he wants and his criticism of lib- eralism loses much of its force. To show that the Ethical Solution does indeed fail, in §4 we develop a second impossibility proof which draws upon an example borrowed from Aristophanes. There we argue that because freedom, equality, and Pareto will not always be co-achievable, a genuine commitment to each necessarily requires making trade-offs. In §5, we conclude that a genuine commitment to respecting individual freedom means that inequalities will sometimes be justified in the name of justice. 1. The Trilemma Argument At the heart of Rescuing Justice and Equality is a claim that freedom, equal- ity, and welfare are co-achievable.5 Justice involves a commitment to all three values, but does not require trade-offs between them. Cohen uses a number of examples to support this claim. Each example compares various states of affairs, distinguished by how hard certain individuals decide to work or what occupations they decide to take up, and asks how they fare as measured against various metrics. Although Cohen does not himself utilize these tools, the structure of his examples makes them especially amenable to analysis using some of the tools of social choice theory.6 Utilizing these tools we can compare, as Cohen does, various states of affairs and ask whether they can be achieved consistently with a range of suitably 4 G.A. Cohen, Rescuing Justice and Equality (Harvard University Press, 2008), p. 10. 5 Cohen, Rescuing Justice and Equality, pp. 181–225. 6 We are largely following an approach derived from the application of social choice theory to ethics pioneered by Amartya Sen, but this basic approach does not require all of the assumptions of traditional social choice theory. For a similar axiomatic treatment of related issues, see: Michael Huemer, ‘Non-Egalitarianism,’ Philosophical Studies, 114 (2003), 147–171. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 4 DOI 10.1163/17455243-4681035 formalized ideals. This is helpful because it delivers a degree of precision that Cohen’s arguments (persuasive as they might be) otherwise lack. Ultimately, however, by developing an informal impossibility proof we will argue, contra Cohen, that freedom, equality, and Pareto, as metrics for eval- uating states of affairs cannot always be mutually satisfied. As a result, if justice is to incorporate each metric it must include a mechanism for bal- ancing them in cases where they conflict. Before we look at the proof itself, though, we first need to define the dif- ferent metrics in question and, because many critics are likely to object that the social choice approach we adopt is foreign to Cohen, say a few things to defend our approach. Although, as we suggested above, Cohen does not explicitly use the framework of social choice theory, his examples are set up in a way that mimics the structure of problems analyzed in the social choice literature and his analysis of these examples sometimes parallels the social choice approach we utilize. More importantly, Cohen discusses in detail Amartya Sen’s famous argument for the impossibility of Paretian liberalism.7 Sen, of course, explicitly utilizes the sort of social choice approach we adopt, and Cohen’s discussion of Sen clearly suggests that he takes Sen’s argument to bear on the thesis he wishes to defend.8 We take it, then, that Cohen has opened the door for the use of these tools in analyzing his own argument. Turning to the formalized metrics we will utilize, for welfare we use the notion of weak Pareto described by Sen and others. Following Sen, the weak Pareto condition states that “if every individual prefers an alternative x to another alternative y, then society must prefer x to y.”9 This is clearly the Pareto condition Cohen has in mind and it implies that for justice to be consistent with Pareto it cannot identify a state of affairs as just when there are alternative states available that are unanimously preferred to it.10 Moving on to freedom, in his discussion of the trilemma argument Cohen focuses on freedom of occupational choice. Freedom, he writes, requires “that people not be coerced into particular jobs, whether by direct state order or by something else that also deserves to be called coercive.”11 7 Cohen, Rescuing Justice and Equality, pp. 187–188. 8 Amartya Sen, ‘The Impossibility of a Paretian Liberal,’ The Journal of Political Economy, 78 (1970), 152–157. 9 Sen, ‘The Impossibility of a Paretian Liberal,’ p. 153. 10 Cohen writes: “The relevant Pareto requirement is the (weak) one that condemns pre- serving a state of affairs in which everyone can be made better off,” Cohen, Rescuing Justice and Equality, p. 184. 11 Cohen, Rescuing Justice and Equality, p. 184. Of course, Cohen is not interested only in freedom of occupational choice, he merely uses it to illustrate his argument, but if we can <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 5 Utilizing our approach, however, requires something more formal and so for our freedom metric we again borrow a metric from Sen, namely his notion of minimal liberalism.12 Following Sen, this condition states that for every individual A, there is at least one pair of alternatives {x, y} such that if A prefers x to y, society must prefer x to y, in the sense that it cannot coerce A into choosing y over x.13 While there is considerable debate about the definitions of freedom utilized by Sen, we think the notion captures what Cohen has in mind within the context of his example.14 For instance, although Cohen criticizes the conclusion that Sen draws from his proof, he does not argue that the minimal liberalism condition is an inadequate model of liberal rights.15 Further, a simple example illustrates that this condition is analogous to the basic conception of freedom of occupation Cohen sketches. If Roxanne prefers one job over another and both are offered to her, free- dom dictates that society cannot coerce her into choosing her less preferred job. It is in that sense that her decision about what job to take is decisive.16 The third value, equality, is the hardest to specify because Cohen’s dis- cussion of it is surprisingly unclear. Cohen writes that “egalitarians like [him] think that justice is served only if people’s access to desirable condi- tions of life is equal,” but he suggests that for the purposes of the trilemma Argument, “the relevant equality might be only that no one is substantially better off than others are with respect to both income and job satisfac- tion.”17 The challenge then is to specify what it would mean for access to the desirable conditions of life to be equal, or for some to be substantially better off than others. Fortunately, Cohen spends much of the book discuss- ing Rawls’ difference principle that lends itself well to formalization, and Cohen defends a particularly demanding interpretation of the difference show that there exists an unavoidable tension between this sort of freedom and equality, then our argument generalizes to freedom more broadly construed. 12 Sen, ‘The Impossibility of a Paretian Liberal,’ p. 154. 13 Note that the Freedom condition also requires that A be free to decide which pair of alternatives she is decisive over. This is necessary to ensure that the condition is substan- tive; otherwise, the condition could be trivially met by providing an individual with deci- siveness over two worthless alternatives. 14 For an overview of the debate on Sen’s argument of the impossibility of a Paretian liberalism and Sen’s responses to critics see: Amartya Sen, ‘Rights: Formulation and Consequences,’ in Rationality and Freedom (Cambridge: Harvard University Press, 2002), pp. 439–461. 15 See Cohen, Rescuing Justice and Equality, p. 187. 16 In the case where Roxanne is presented with multiple job offers, freedom requires that she be able to eliminate at least one from consideration, so that she cannot be forced to accept a job that she least prefers. 17 Cohen, Rescuing Justice and Equality, p. 184. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 6 DOI 10.1163/17455243-4681035 principle that is easier still to formalize.18 Following Cohen’s discussion of the difference principle, we assume that equality means maximizing, by their own lights, the condition of the least well off.19 On this definition, equality implies that given a pair of alternatives {x, y} if x maximizes the condition of the least well off, then x is more just than y. As a result, at least as a matter of justice, society ought to prefer x to y. While there is much more that can and should be said about equality, this definition provides us with the specificity required to analyze the trilemma argument and Cohen’s proposed solution to it. Before moving on it is also important to say something about the con- cept of preference we utilize. There is often some confusion about what it means to prefer one alternative to another, and indeed, Cohen is somewhat unclear about what he means by preference. In order to avoid confusion, then, we employ a technical sense of preference that is clearer than the ordinary notion. Although the ordinary notion of preference allows us to say that we can sometimes choose an act that we might not prefer to do (which perhaps because we are required to do by some type of duty), the technical sense of preference we employ subsumes all considerations that lead to action.20 This notion of preference is both essentially comparative and all things considered, so that to prefer something is to prefer it to some- thing else.21 18 The version of the difference principle that Cohen favors requires that we maximize the well-being (or primary goods available to) the worst off, that labor burden be included in the distributive metric, and that the demands of the difference principle extend to individu- als’ actions and decisions as opposed to being restricted to the structure of our major social institutions. See: Cohen, Rescuing Justice and Equality, Chapter 1, Part III and Chapter 2. 19 In utilizing this variant of the difference principle as our equality metric, however, we do not mean to be taking a stand on the question of whether the difference principle licenses inequalities to some that might be necessary as incentives to induce them to do work that redounds to the benefit of others. Further, we do not mean to be claiming that the difference principle is ultimately the best way of understanding what equality demands of us. Cohen clearly thought that equality was best understood as requiring that persons have “equal access to advantages.” For analyzing the trilemma argument, however, using the difference principle as a metric of equality is sufficient and does not contradict the spirit of Cohen’s argument. 20 One account, among many, of the technical sense of preference employed here is found in S.I. Benn and G.W. Mortimore, ‘Technical Models of Rational Choice,’ in Rationality and the Social Sciences, 1976, pp. 160–161. This is also the account of preference normally employed in the social choice literature. A good recent discussion can also be found in Daniel M. Hausman, Preferences, Value, Choice, and Welfare (Cambridge: Cambridge University Press, 2011), Chapters 1 & 2 . 21 There is considerable philosophical debate on the nature and grounding of prefer- ences as well as their relationship to psychological states such as beliefs and desires. On these questions, we remain silent. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 7 Having described the approach we will use, we can now turn our atten- tion to the primary example that Cohen uses to illustrate the trilemma. Cohen’s example involves a person that we call Epicurean Doctor, who enjoys gardening, but will work as a doctor if her wage is sufficiently high.22 Epicurean Doctor is willing to give up the pleasure and satisfaction she gets from gardening if she is paid $30,000 more dollars to be a doctor, but if offered the same wage for each job, say $20,000, she prefers to be a gardener. Whatever she chooses, Cohen stipulates, she is much better off than most other people are in her society, and further, doctoring imposes no hardships on her over and above the fact that she prefers gardening. Her society, however, needs doctors and so society would most prefer to pay Epicurean Doctor only $20,000 to work as a doctor, but would also prefer to have her work as a doctor at $50,000 than to have her spend her days gardening. Assuming nobody else cares whether Epicurean Doctor is able to pursue her passion for gardening, and (to simplify things) if society as a whole is responsible for directly paying doctors, then we have a divergence between Epicurean Doctor’s preferences and society’s preferences.23 As we suggested above, we can model justice as a social choice rule that ranks the three occupational choices that confront Epicurean Doctor given her preferences and everyone else’s which are represented in Table 1 below: 22 Cohen, Rescuing Justice and Equality, chap. 5 section 2. 23 In a forthcoming review of Rescuing Japa Pallikkathayil argues that it is unclear on what grounds Cohen is committed to caring about the absolute condition of the worst off (or anyone for that matter). As such it’s not clear how justice should constrain the choice of occupations with equal wages (or levels of welfare). For instance, Pallikkathayil argues that although Cohen sometimes suggests that a commitment to equality is enough to motivate the choice of, for example, more socially useful occupations, this seems like a mistake. See Japa Pallikkathayil, ‘Review of G.A. Cohen’s Rescuing Justice and Equality,’ Journal of Philosophy (Forthcoming). Table 1 Epicurean Doctor Everyone Else (a) Doctor at $50,000 (c) Doctor at $20,000 (b) Gardener at $20,000 (a) Doctor at $50,000 (c) Doctor at $20,000 (b) Gardener at $20,000 <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 8 DOI 10.1163/17455243-4681035 Epicurean Doctor has the preference ordering a > b > c, while Everyone Else has the preference ordering c > a > b. The question that the proponent of the trilemma argument forces us to ask is how justice responds to these divergent preferences, and in particular whether a social choice rule mod- eling justice can mutually satisfy the constraints presented by equality, freedom, and Pareto as we have defined them? Both Epicurean Doctor and Everyone Else prefer a to b, so according to Pareto b should not be chosen over a. However, option c is also on the Pareto frontier because there is no alternative that everyone prefers to c. We can say then that the Pareto principle is not decisive here because both a and c are compatible with it. Alternatively, if we appeal to freedom, per- haps claiming that Epicurean Doctor has a right to freedom of occupation, then we must make (some of) Epicurean Doctor’s preferences concerning her occupation decisive and a will be the likely winner.24 Appealing to equality, however, yields a different result. If we assume that alternative c (doctoring at $20,000) maximizes the condition of the least well off, then even though Epicurean Doctor ranks option c last, it is the option picked out by the equality metric.25 We summarize these outcomes in Table 2 below: 24 Strictly speaking freedom picks out either a or b depending upon which pair of alter- natives {a, c} or {b, c} Epicurean Doctor is decisive over. The important point is that freedom effectively rules out c and ultimately yields a as the social choice either directly (if Epicurean Doctor is decisive over a and c) or indirectly (if Epicurean Doctor is decisive over b and c, in which case freedom picks out b and Pareto leads us to a because a > b by everyone). Note that we can ignore the pair {a, b} because freedom allows Epicurean Doctor to decide which pair she is decisive over and because society prefers that she be a doctor at $50,000 (a) to gardening at $20,000 (b), so there is no need for her to exercise her decisiveness over that pair. Our earlier discussion of Sen’s minimal liberalism condition explains why it is neces- sary that Epicurean Doctor be allowed to decide which pair she is decisive over, namely that if our freedom condition is to be substantive, Epicurean Doctor must not only be decisive over at least one pair of alternatives, but she must be free (within some substantial range) to choose which pair of alternatives she should be decisive over. 25 We grant for the sake of argument that this is a reasonable assumption since society needs doctors and c involves the Epicurean Doctor, working for less money, thus leaving society with more money which it might then use to benefit the least well off in other ways. Table 2 Freedom a (or b) Equality c Pareto a or c <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 9 Referring to Table 2 we can see that freedom and Pareto are compatible since they each yield a as an eligible social choice. Pareto and equality are, similarly, compatible since they each leave c in the eligible set. Freedom and equality, however, do not yield compatible choices. If we appeal to equality, freedom is swamped. Everyone Else becomes decisive over the pairs {a, c} and {b, c} and is thus able to dictate both Epicurean Doctor’s job and salary. This result suggests that an uncompromising commitment to equality requires that we sacrifice freedom in cases where an individual’s preferences conflict with the interests of the least well off. Alternatively, if we appeal to freedom and allow (again, some of) Epicurean Doctor’s prefer- ences to be decisive, then the least well off will be worse off than they might otherwise be. This is the deep tension between the values that concern lib- erals versus the values that concern egalitarians. Because Cohen is con- cerned with showing that a commitment to equality does not require us to sacrifice freedom, we focus on the former result and in the next section we look at his proposed solution to this problem. 2. The Ethical Solution As Cohen recognizes, his example involving the Epicurean Doctor is analo- gous to Sen’s Prude/Lewd example from his argument for the impossibility of Paretian liberalism. Contra Sen, however, Cohen argues that it is a mis- take to think that minimal rights must conflict with Pareto or, carrying the point over to his own example, with equality. Cohen’s primary contention is that “liberalism does not require that you exercise the sovereignty it grants in accordance with your other-things-equal first preferences.”26 He also argues however that the notion of liberalism embodied in Sen’s “minimal liberalism” and captured by the freedom principle we have used, is not at all similar to the liberalism that he claims to share with Dworkin and Rawls.27 With respect to his second point, Cohen is simply mistaken. To be valu- able, freedom or liberal rights must give significant weight to protecting individuals from having the preferences of others imposed on them. Of course, an individual may decide not to exercise a right in a given case— Cohen is right about this much—but to be significant, that decision must presuppose the individual’s ability to exercise the right should she desire.28 26 Cohen, Rescuing Justice and Equality, p. 187. 27 Cohen, Rescuing Justice and Equality, p. 188. 28 It is true that elsewhere Cohen famously characterizes freedom in terms of ability, and in his example the Epicurean doctor is surely able to choose the occupation of her choice. Our <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 10 DOI 10.1163/17455243-4681035 To say that a minimally liberal set of rights conflicts with Pareto and equal- ity then is to say that if some individuals exercised their rights either Pareto or equality must be sacrificed. Indeed, this was the point of Sen’s original argument, namely that rights and social welfare will not always coincide, and it is only once we understand this point on a formal level that we are led to more substantive philosophical questions concerning which values justice requires us to be sensitive to and in what kinds of situations.29 Cohen is making a deeper point as well though, viz. that the demands of justice extend beyond those placed on the basic structure of society, and it is on this deeper point that his main line of argument against the problem posed by the trilemma rests.30 Cohen’s argument is that if the decisions we made in our individual lives were guided by a belief in equality, the tri- lemma dissolves. Justice, he argues, requires us to internalize certain values and once we do so, our preference for exercising our rights in ways that generate the sort of conflict the proponent of the trilemma worries about will vanish. Cohen refers to this as the Ethical Solution and motivates it with the following imaginary exchange: The trilemmist says: “We shouldn’t be egalitarians, because equality requires a sacrifice of either Pareto or freedom.” To which I reply: “That isn’t so, because, if we were egalitarians, we should be sacrificing neither.” And that reply isn’t trivial.31 Cohen’s argument is that once the Epicurean Doctor realizes the impor- tance of equality she would (or should) change her preferences. If she really cared about equality, freedom would not be an issue. point is simply that if freedom is to be substantively valuable, justice must carve out a range of choices, from which an individual is free to choose, consistent with the demands of justice. 29 Indeed, this point, and the larger point that the point of theorizing about justice is to provide practical guidance in alleviating suffering and solving disputes is the primary thesis of Sen’s recent book and has also been powerfully articulated by David Schmidtz. See Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009) and David Schmidtz, ‘When Justice Matters,’ Ethics, 117 (2007), pp. 433–459. 30 This is one of the main thrusts of Cohen’s book and is an issue about which there has been much debate. See: Cohen, Rescuing Justice and Equality, chap. 4; Liam B. Murphy, ‘Institutions and the Demands of Justice,’ Philosophy & Public Affairs, 27 (1998), 251–291; Thomas W. Pogge, ‘On the Site of Distributive Justice: Reflections on Cohen and Murphy,’ Philosophy & Public Affairs, 29 (2000), 137–169; A.J. Julius, ‘Basic Structure and the Value of Equality,’ Philosophy & Public Affairs, 31 (2003), 321–355; Thomas Porter, ‘The Division of Moral Labour and the Basic Structure Restriction,’ Politics, Philosophy & Economics, 8 (2009), 173–199; Kok-Chor Tan, Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality (Oxford University Press, USA, 2012). 31 Cohen, Rescuing Justice and Equality, p. 196. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 11 Of course, the Epicurean Doctor might simply respond that if Everyone Else really cared about freedom, they would leave her alone to pursue her preferred profession without interference. In either case, though, solving the problem this way merely sidesteps the serious philosophical questions concerning how social justice should accommodate competing values. Cohen’s argument is that in a truly just society, people’s preferences would align with equality and, hence, it would never conflict with the other two metrics. This amounts to saying that if the Epicurean Doctor cared about equality she would prefer to work as a doctor for $20,000 rather than gar- den or work as a doctor for a higher wage. Her preference ordering would change from a > b > c to c > a > b and since her preferences would now be the same as Everyone Else’s no trilemma would arise. We say this approach sidesteps the difficult philosophical issues at hand, because it is hard to see how it shows that the trilemma is not really a problem. In this case, justice free from conflict is merely the product of philosophical fiat. Cohen “solves” the trilemma argument by stipulating that it never arises.32 For his solution to be of general interest, Cohen needs to show that the preference profiles that give rise to the trilemma are inadmissible. Essentially, Cohen needs to show that we have good reason to reject the unrestricted domain condition that we implicitly assumed in the Epicurean Doctor example.33 Sen describes unrestricted domain as the condition that “every logically possible set of individual orderings is included in the domain of the collective choice rule.”34 In other words, no individuals or preference orderings should be excluded from the scope of the collective choice rule— in this case, the rule being used to model the requirements of justice. Of course, it is by no means obvious that justice must license the range of 32 Note that the problem is more dramatic still. For Cohen’s solution not only requires that individuals be motivated to pursue egalitarian policies, but the same egalitarian poli- cies; otherwise the problem of divergence of preferences will arise even assuming an egali- tarian ethos. Rawls in particular, whose animating concern was the problem posed by the fact of reasonable pluralism, would have been particularly attuned to this worry. 33 Cohen’s solution to the trilemma exploits the well-known fact in the social choice lit- erature that only certain preference profiles generate the paradoxes of social choice that the famous impossibility theorems threaten. Like Cohen here, many have attempted to defang the threat of various impossibility theorems by weakening the unrestricted domain assump- tion that Arrow’s impossibility theorem, among others, relies upon. Unfortunately, one of the most dispiriting lessons in social choice has been that many forms of impossibility are resil- ient in the face of a substantial degree of weakening of their axioms. Furthermore, the type of restriction that Cohen proposes is not trivial as he is essentially proposing restricting the domain of individual preferences so that they are identical to the set of social preferences. 34 Sen, ‘The Impossibility of the Paretian Liberal,’ p. 153. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 12 DOI 10.1163/17455243-4681035 preferences that the unrestricted domain condition allows, particularly if justice requires (as Cohen thinks it does) that individuals internalize a cer- tain ethos, and so Cohen’s strategy perhaps looks promising. In the next section, however, we will see that Cohen lacks the resources needed to restrict the domain of acceptable preferences to the extent required by his solution to the trilemma. 3. Vacations, Sick Days, and Prerogatives In his earlier work, Cohen argues in favor of a principle of symmetrical jus- tification for coercion.35 In Rescuing, however, his discussion of justifica- tion is framed first in terms of something he calls the interpersonal test,36 and later in terms of the idea of a personal prerogative first sketched by Samuel Scheffler and subsequently developed by David Estlund.37 Cohen begins the trilemma chapter trilemma with the observation that the demands of egalitarian justice must fall “within the constraint of a reason- able personal prerogative, deference to which informs the whole of the fol- lowing discussion”—only a moral rigorist, he argues, could deny a place for such a prerogative, and he affirms that he is not such a rigorist.38 Prerogatives are important because valuing the freedom of persons to pursue a conception of the good requires that they have considerable room within to make decisions about their life and prerogatives provide people with this space.39 Prerogatives protecting occupational choice are espe- cially important in this regard. No less important is being free to choose how to trade off time spent working with time spent with one’s friends and 35 G.A. Cohen, Self-ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995), pp. 56–57. 36 See Cohen, Rescuing Justice and Equality, chap. 1, Section  5. According to Cohen, as free and equal members of a moral community our relationships ought to be structured by a norm of comprehensive justification and a necessary condition of comprehensive justifi- cation is that arguments be capable of passing the interpersonal test, where this requires that an argument must be capable of providing justification under any and all dialogical conditions. In other words, an argument’s ability to provide justification must be indepen- dent of both who is presenting it and to whom it is being presented. 37 David Estlund, ‘Liberalism, Equality, and Fraternity in Cohen’s Critique of Rawls,’ Journal of Political Philosophy, 6 (1998), p. 99 and Samuel Scheffler, The Rejection of Consequentialism (New York: Oxford University Press, 1982). 38 Cohen writes “I do not wish to reject … what Samuel Scheffler has called an “agent- centered prerogative,” Cohen, Rescuing Justice and Equality, p. 61. 39 This point is especially clear in the case of love and relationships, which we discuss in section 5. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 13 family, or pursuing other interests and passions. Treating people as free then requires that individuals have the prerogative to make their own choices about how to live their lives even if this means that there will be some who do worse than they otherwise might. While Cohen accepts that there is a place for a modest personal preroga- tive within his view of justice, there are two ways of understanding such prerogatives. On one hand, prerogatives can be conceived of as “vacations” from the demands of justice. Vacations are justified departures from the requirements of justice that allow individuals a certain amount of space to freely pursue their own projects, regardless of how these pursuits relate to distributive justice.40 Conceived of in this way, prerogatives prevent justice from being all-encompassing. Alternatively, prerogatives can be thought of as “sick days.” Thought of this way, prerogatives are excuses for failing to live up to the demands of justice. However, just as it would perhaps be bet- ter if individuals didn’t have to take sick days from work, it would also be more just if people minimized the number of prerogatives taken to depart from the demands of justice. It sounds odd though to say that we should treat prerogatives just as we do sick days. This requires us to think that individuals’ pursuing their own projects is something to regret—a necessary evil. Acting in accordance with justice, on this model, is a kind of Stakhanovism.41 If this is Cohen’s view, he is in danger of repeating the mistake that Bernard Williams and Rawls attri- bute to utilitarianism: that it does not take the separateness of persons seri- ously, viewing people instead as mere nodes for the fulfillment of justice. To make the distinction we have drawn even starker, note that individu- als are often expected and even encouraged to take vacations from work, lest they allow their work to cause them to lose sight of the other important things in life. Although one’s occupation is often bound up with one’s iden- tity, and in many cases helps to give life meaning, what makes the freedom to choose one’s occupation important are the myriad values, interests, and larger-scale projects that individuals have which give them reasons to shape their identities in various ways. While these are issues that Cohen is sensitive to, unfortunately he does not fully appreciate the constraints they impose on a view like his. Although he accepts that justice must make room for a reasonable personal prerogative, he tells us little about what 40 For a more complete discussion of a view like this, see: David Estlund, ‘Liberalism, Equality, and Fraternity in Cohen’s Critique of Rawls,’ p. 99. 41 ‘Stakhanovism’ refers to the ideology of the Stakhanovite movement of the 1930s in the Soviet Union under Stalin. The movement was inspired by the example of Aleksei Stakhanov a miner who, in 1935, mined 14 times his quota of coal in one day. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 14 DOI 10.1163/17455243-4681035 falls within the scope of such a prerogative nor, as we have seen, does he tell us how such prerogatives mediate the demands of justice.42 This second point is particularly important, for if prerogatives are best conceived of along the vacation model as we have argued they should be, then it is hard to see how Cohen can constrain the domain of admissible preferences to the degree required to get his ethical solution off the ground. This is because the only way the ethical solution succeeds is if individuals could come to have such a strong egalitarian ethos that their occupational preferences coincide with what would best promote the needs of the least well off. As we will see in the next two sections though, even if individuals could come to adopt such an equality driven ethos, there are reasons to doubt whether they should. Before exploring this argument, though, it is important to first clarify why the ethical solution succeeds only if the domain of free choice is severely curtailed. The problem is that prerogatives license inequalities and we have good reason to concede that individuals have prerogatives within which they are free to act. Cohen admits as much. His disagreement with those like Estlund and Scheffler who have drawn attention to the inequality generating feature of prerogatives is directed solely at the amount of inequality that reasonable prerogatives license and the way in which they do so.43 Cohen accepts that prerogatives allow individuals to justifiably make choices that generate inequality, but contra Estlund he argues that the amount of inequality that is thus justified is not extensive. This is a debate about the extent of inequality that is justified, though, and not a debate about whether it is justified. Similarly, Cohen emphasizes that the prerogative justification provides a different sort of justification for inequality than the incentive argument that grounds the difference principle, but this too does little to cut against the claim that some inequalities will be justified because it only 42 In the introduction to Rescuing, for instance, Cohen points out that there are many forms of motivation lying on a spectrum that stretches from unrestrained market-maximiz- ing at one end to fully self-sacrificial restraint favoring the worst off at the other. He then argues that the first extreme is permitted by Rawls, something that he finds absurd, but he also argues that the second extreme isn’t required because requiring such self-sacrifice is “excluded by a legitimate personal prerogative.” Because individuals have their own lives to lead, Cohen suggests “they are therefore permitted to strike a balance between the claims of the difference principle and their own legitimate concerns.” The difficulty, on Cohen’s view, is that what constitutes an appropriate balance is a “vague matter.” Cohen, Rescuing Justice and Equality, pp. 10–11. 43 See Cohen, Rescuing Justice and Equality, pp. 387–389 Section  4 of the General Appendix, “Incentives and Prerogatives.” <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 15 speaks to the question of how those inequalities are justified.44 This is important because our argument has been directed at Cohen’s claim that equality, freedom, and Pareto are not in conflict. We have denied Cohen’s claim, and in doing so, what we have argued is that Cohen must license some inequality if he is to maintain his commitment to freedom. What we have not tried to say, however, is how much inequality he must make room for. 4. The Women of Athens In the “Ecclesiazusae,” Aristophanes depicts an Athens racked by war and deprivation, having been run into the ground by the men. In response, the women of the city take over the legislative assembly and, in an effort to save Athens from total ruin, their first act is to legislate absolute equality between all Athenians. Their leader Praxagora decrees that, “Mankind should possess in common the instruments of happiness. Henceforth pri- vate property comes to an end …”45 The plan, as Praxagora elaborates, is to “destroy [the old] morality”46 and supplant it with a new ethos, the hope being that by working together and owning all things in common Athenians could come to build a society on a foundation of equality. Praxagora is, like Cohen, ultimately concerned with equality of welfare, not equality of money and because one of the aspects of life that can con- tribute the most to happiness and welfare is love, she becomes concerned about the vast inequities of love that naturally exist. Recognizing that it is hard for the old, the ugly, and the awkward to compete with those younger, prettier, and smoother for the affections of potential lovers, the women outlaw marriage in the city and even go so far as to make it illegal for the young and pretty to have their turn at love without first allowing the older and uglier a chance.47 In one scene, a pretty young girl is waiting for her lover while an old woman stands close by. Eventually the young man arrives, seeking the 44 It is also worth noting that in his reply to critics Cohen eventually acknowledges, fol- lowing Estlund, that prerogatives could serve to legitimate certain deployments of the incentive argument, his argument with Estlund on that point being that there is simply no trace of such an argument to be found in Rawls’ work. 45 Aristophanes, ‘Ecclesiazusae,’ in The Complete Plays of Aristophanes, ed. by Moses Hadas, Bantam Classic (New York: Bantam Classics, 1981), p. 438. 46 Aristophanes, ‘Ecclesiazusae,’ p. 439. 47 Aristophanes, ‘Ecclesiazusae,’ p. 457. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 16 DOI 10.1163/17455243-4681035 young girl. The older woman, spying her chance, demands that the young man obey the new law. Horrified at what justice now requires of him, the young man tries to trick the old woman, but to no avail. She prevails and drags him off into her room. At just that moment, though, an older, uglier woman shows up to claim her right and the first woman is forced to give him over to her older and uglier competitor. Naturally, as the second old woman is taking the young man away a third appears, older and uglier still. As the third old woman says, “I’m older, and I’m uglier; consequently this boy belongs to me.”48 Given the multiplicity of women arranged in a hier- archy of unattractiveness, the young man will have to work his way down the line if he intends to ever be with his lover. While the young man has no interest in being with any of the old women, alas, his wishes are irrelevant. If he could do as he wished and be only with his beloved, the old women would be much worse off in relation to the young couple. From the point of view of justice, at least as instantiated by the women of Athens, this is unacceptable. If the young man wishes to pur- sue the girl, he does indeed “belong” to the oldest woman first, because her happiness and welfare overrule his freedom to choose his partners. There is a sense, then, in which the young man has become merely a means to the old women’s satisfaction. This case clearly illustrates what it is like for indi- viduals to be treated merely as material for the fulfillment of justice. What makes it particularly compelling though is that Cohen is clearly committed to thinking that it is inconsistent with justice to treat individuals in this way.49 As we did with the case of the Epicurean Doctor, we can formalize Aristophanes’ story. In the Aristophanes case, however, unlike the Epicu- rean Doctor case, we have many preference orderings rather than simply two. Furthermore, the preferences range over who may be with whom in a romantic situation and so the example is even starker than Cohen’s origi- nal case insofar as it involves action that is even more personal than occu- pational choice.50 48 Aristophanes, ‘Ecclesiazusae,’ p. 459. 49 Recall, for instance, Cohen’s claim from the introduction to Rescuing that individuals have the right to be something other than engines for the welfare of other people. 50 Aside from the already discussed prerogative, there is no reason in principle why Cohen should hold that the demands of justice should not apply to romantic choice, espe- cially if romantic partners are importantly related to welfare. We need not be committed to the claim that Cohen would have us all be egalitarians in romantic matters though. Rather, the point of the example is simply to illustrate the tension between freedom and equality and thus the need to invoke a prerogative or some other mechanism for resolving this tension. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 17 In order to simplify things, in what follows, we represent this situation as involving three persons, though the older and uglier women that enter later could easily be incorporated without changing the result. The Young Man prefers to be with the Young Woman and only the Young Woman. We can call this state of affairs, x. Nevertheless, if he cannot be with just the Young Woman, he is willing to be with the Old Woman first and then the Young Woman. He finds the prospect of being with the Old Woman objec- tionable, but he is willing to pay that price for love if he must. We call this state of affairs where the Young Man will be with the Old Woman first, and then the Young Woman, y. The worst state of affairs for the Young Man is to miss the opportunity to be with his beloved entirely. This state of affairs involves everyone leaving the scene without having any romantic involve- ment at all. We can call this state of affairs z. Thus, the Young Man’s prefer- ence ordering in this situation is: x > y > z. The Young Woman’s first preference is also to be with her lover, the Young Man, without any interference from the Old Woman, and so she pre- fers x to all other alternatives. The thought of her lover with the Old Woman angers her so much, however, that she would prefer z to y even though this means she would have to forgo the affection of her lover. The Young Woman’s preference ordering, then, is: x > z > y. Finally, the Old Woman prefers y to all other states of affairs, but would be so wrought with jealousy and envy if the Young Woman were able to have the Young Man to herself that she prefers z to x and so her preference ordering is: y > z > x.51 These orderings are represented in Table 3 below: 51 We assume for the sake of argument that the Old Woman’s preferences accurately track her welfare. As we will see in the next section, though, there are perhaps problems with making this assumption that in turn give us further reason to doubt the efficacy of Cohen’s proposed solution to the trilemma. Table 3 Young Man Young Woman Old Woman x x y y z z z y x As in the Epicurean Doctor case, we have a dilemma. We say dilemma, rather than trilemma here because in this situation, every alternative satis- fies the Pareto principle and so it cannot conflict with our other principles. There is no pair of alternatives such that one alternative is preferred to the other by everyone. Both the Young Man and the Young Woman prefer x to <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 18 DOI 10.1163/17455243-4681035 y while the Old Woman prefers y to x and similarly, the Young Man and Young Woman prefer x to z while the Old Woman prefers z to x.52 On the other hand, the Young Man and the Old Woman both prefer y to z, while the Young Woman prefers z to y. There is no way then to reconcile their respective preferences with both equality and the requirement that each individual be decisive over at least one pair.53 5. The Demands of Equality In the “Ecclesiazusae,” the women of Athens deem equality to be the unique collective choice rule consistent with justice. The result is comical. Their uncompromising commitment to equality threatens to undermine even their most basic freedoms. We should be worried then by the fact that Aristophanes’ dilemma parallels the trilemma argument, particularly since Cohen’s proposal that the trilemma can be dissolved if only we could embrace an ethos of equality is not offered in jest. In light of Aristophanes’ dilemma, we must ask whether Cohen’s ethical solution really allows us to express an uncompromising commitment to equality without becoming “slaves to social justice.” Let us assume, following Cohen’s suggestion, that the characters in our example borrowed from Aristophanes have become perfectly committed to equality so that the young couple’s preferences come to coincide with the Old Woman’s. Their respective preference orderings can then be repre- sented as follows: 52 To get this result we need not assume transitivity, only quasi-transitivity since we are only dealing with strict preference orderings without indifference. 53 Note that the primary problem presented by this particular set of preference profiles is that the Young Woman ranks y, the option required by equality, as her least preferred option. Table 4 Original Dilemma Cohen’s Revised Dilemma Young Man Young Woman Old Woman Young Man Young Woman Old Woman x x y y y y y z z z z z z y x x x x <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 19 Note that the proposed revision of the parties’ preferences does indeed solve the problem, but as with the Epicurean Doctor case, it is only able to do this by changing the circumstances. Earlier we charged Cohen with avoiding the problem rather than confronting it. The point we now wish to make, though, is that Cohen himself gives us reason to think that we should be hesitant to adopt such an ethos. First, however, we must consider what can be said in favor of adopting such an ethos. There is a similarity for instance between this example and Cohen’s occasional approval of “everyone doing his or her bit” in war- time England.54 On Cohen’s view, despite the hardships that accompanied “doing one’s bit,” a certain amount of fellow feeling and patriotism moti- vated people to do more than they might have otherwise done and this is to be celebrated. It does not follow, however, that since people were moti- vated by fellow feeling that their hardships were no longer hardships. Indeed it is precisely because everyone “did their bit” in the face of these hardships that that fact is to be celebrated. Similarly, the Young Man, despite his newly acquired egalitarian ethos, will still find the prospect of being with the older women objectionable, but he will see it as his duty as well and so will perform the task in spite of this. He may even get a warm feeling knowing that he has done his duty. The problem we face is that in this case equality is providing the wrong kind of reason for action. Cohen opens the door to this argument in the final section of “The Freedom Objection.” Here, Cohen makes an intriguing argument against prostitution. Prostitution is wrong, Cohen argues, for the same reason that rape is wrong, namely because “the wanted thing is yielded for the wrong reason.”55 Of course, some might argue with this characterization of rape. It may not be merely sex that the rapist is after. Rape is, at least some of the time, an exercise of power and domination and not just a sexual act. Cohen argues, however, that it would be wrong to view rape merely as a “species of assault.”56 To think of rape in that way would be to base one’s disapproval of it on a “breach of self-ownership” and would make one indifferent to prostitution to the extent that prostitution is (at least sometimes) an expression of self-ownership. Cohen’s argument here is far from uncontroversial, but rather than dis- pute Cohen’s assessment of rape and prostitution we want to consider how Cohen’s claim puts pressure on his proposed solution to the trilemma. 54 Cohen, Rescuing Justice and Equality, p. 219. 55 Cohen, Rescuing Justice and Equality, p. 224. 56 Cohen, Rescuing Justice and Equality, p. 224. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 20 DOI 10.1163/17455243-4681035 In our Aristophanes example, the Young Man has a duty to have sex with the Old Woman if he ever wants to be with his lover. Of course, he does not love or desire the Old Woman and so, although he may be motivated to engage with her, this can only be because he has embraced his egalitarian ethos so completely. The Young Man’s commitment to egalitarianism may be commendable, but, like the prostitute, he is yielding the “wanted thing” for the wrong reasons. While the Young Man is not being forced to yield his body to the Old Woman because he is motivated to do it, his commitment to equality or justice does not translate into love or desire for the Old Woman. It follows, then, that if we are to condemn prostitution and rape along the lines that Cohen suggests, we should also condemn this particu- lar act of “yielding” for the same reasons. This is bad news for Cohen’s ethical solution, for it shows that even if adopting an egalitarian ethos could dissolve the trilemma, by Cohen’s own lights we sometimes have overrid- ing reasons not to do so. Sometimes, it seems, there are inequalities that it would be unjust to change. Of course, the defender of Cohen could argue that what an appropriate egalitarian ethos really requires of the young couple is that they simply refrain from being with one another. Thus, the Young Man would not be compelled to yield himself to the Old Woman for the wrong reasons, but the Old Woman would now have no reason to envy the young couple’s abil- ity to find love. This, we think, goes too far. While it perhaps does not make the young couple mere engines for the welfare of the older and less attrac- tive, it does threaten to swallow up any space they might have in which to live their own lives. More reasonably, Cohen could argue that romantic choices should fall within the purview of a personal prerogative. We do not disagree. The problem is that if Cohen grants that choosing one’s romantic partner should fall within the scope of a reasonable prerogative, then that romantic choices are protected in this way simply serves as proof that the commitment to equality is not, in the end, uncompromising. At this point we must consider whether we have given due weight to Cohen’s sensitivity to the distinction between the relation of the personal and impersonal on one hand and the relationship between justice and the personal on the other.57 The worry as we understand it is that Cohen’s sen- sitivity to this distinction mitigates much of the criticism that we have lev- ied against him. We appreciate Cohen’s sensitivity to issues like this. We recognize, for instance, that Cohen would prefer us not to be egalitarians about everything, least of all sex and love. We struggle to see though how 57 We thank an anonymous referee for this journal for raising this point. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 21 this insulates him from the charges we have laid at his feet. One reason is that it is hard to see how Cohen can draw a non-arbitrary line between those choices that do and those that do not fall within the scope of justice. After all, one of the main theses Cohen defends is that “the personal is political” and thus that the demands of justice extend to the sorts of deci- sions individuals make in their everyday lives. Indeed his entire criticism of Rawls rests on this claim. More importantly, however, we believe that there is good reason to think that something like a prerogative does not in fact compete with justice. There is a deep tension running through Cohen’s thought, though, that makes it unclear whether he can hold this view. Cohen recognizes that because individuals have their own lives to lead, neither justice nor equality can be all that matters. On one way of understanding things, this is not problematic because justice is simply one value among many. Indeed, Cohen suggests that “there is some justice that cannot, and some that should not, be implemented institutionally, or indeed, as Shakespeare’s Portia knew, at all.”58 On this view, we must make room for inequality in light of individuals’ reasonable personal prerogatives, but this is not a requirement of justice. Rather, as we argued in §3, it is a (potentially regret- table) situation that arises because these prerogatives lie outside the scope of justice. As Cohen also argues, though, the label “justice” is significant and one reason it is significant is that “each person possesses an inviolability founded on justice.”59 As we see things, making room for a prerogative is one way of giving force to this powerful idea and the implication of this is not just that we must make room for inequality, but that these inequalities are sometimes licensed in the name of justice. This, however, is a conclu- sion that Cohen is hesitant to draw. There is one further problem for the prospects of Cohen’s ethical solu- tion that bears mention. Whatever one thinks of Cohen’s objection to pros- titution, it does suggest an important question, namely whether the merely physical “yielding” of the Young Man can truly satisfy the Old Woman in the right way. Although we earlier assumed for the sake of argument that the Old Woman’s preferences accurately tracked her welfare, there are good reasons for believing that the Young Man’s yielding to her would not in the end satisfy her. For an extremely lonely person, any human contact 58 Cohen, Rescuing Justice and Equality, p. 304. 59 Cohen, Rescuing Justice and Equality, p. 305. Here Cohen quotes Rawls approvingly, the idea being that appeals to justice give strength to individuals’ claims that they would otherwise lack. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) 22 DOI 10.1163/17455243-4681035 is often welcomed. Being with the Young Man might, very well then, be able to eliminate some of the negative effects of isolation and alleviate some of the Old Women’s loneliness. She would no doubt be aware, how- ever, that the Young Man did not love her or desire to be with her in any way except insofar as his sense of equality required it. Peter Railton, in a similar context, describes this type of situation as a kind of alienation.60 In his example, a husband performs all the duties that a loving husband would perform, but his reasons for acting the way that he does is his devotion to morality, not, strictly speaking, his dedication to his wife. As Railton suggests, “something seems wrong”—after all, one doesn’t only want to be treated as a means of discharging moral duties or as a means of increasing the amount of well-being in the world.61 Imagine a son telling his mother upon visiting her at her home that he is visiting her because she is old and lonely and morality requires that the lonely be vis- ited periodically. Or imagine a wife embracing her husband, not because she has any particular affection for him but rather because she knows that her husband’s well-being will improve if he is embraced. Surely, both of these situations, along with our example borrowed from Aristophanes seem perverse in the same way that Cohen thinks prostitution is perverse. Love and affection are given freely for reasons of love and affection, not for reasons of morality or equality. The problem, we have argued, is that however strong the Young Man’s commitment to equality is, that alone will not allow him to satisfy the demands of justice. In the trilemma case, Cohen argues that someone with an egalitarian ethos acts without coercion when they act in accordance with equality and so, freedom can be consistent with equality. The egalitar- ian ethos alone, however, will not achieve equality in the Aristophanes case because acting from an egalitarian ethos provides the wrong kind of reason to the Young Man. The Old Woman needs the Young Man to love or desire her for the right reasons, and an egalitarian ethos does not provide those reasons to the Young Man, no matter how committed he is to it. Reasons of equality are dictated by how closely they track distributive desiderata. Reasons of love, on the other hand, come from the deeply held desires that are directed at the object of love. To truly achieve equality in our example, we would need to change the desires of the Young Man, but 60 Peter Railton, ‘Alienation, Consequentialism, and the Demands of Morality,’ Philosophy and Public Affairs, 13 (1984), pp. 134–171, at pp. 135–137. 61 Railton, ‘Alienation, Consequentialism, and the Demands of Morality’, pp. 134–171, at p. 136. <UN><UN> J. Thrasher and K. Hankins / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681035 23 this might not be possible. Further, even if it were possible, as our discus- sion of personal prerogatives has suggested, it may not be desirable for, as Cohen himself affirms, justice to not be all encompassing in this way. We should not be slaves to social justice. Cohen may be right that justice does not license the degree of inequality that many others have supposed. He may also be right that justice requires us to adopt an egalitarian ethos. Our suggestion here is simply that even if we grant Cohen’s claim that adopting an egalitarian ethos may help to alle- viate the tension between co-realizing the values of freedom, equality, and Pareto, we need to do more to fully dissolve that tension. It is not only minds that need to be changed, but also hearts, and even that may not be enough. Finally, although we have levied a series of objections against Cohen’s proposed solution to the trilemma argument, it is worth noting that the failure of Cohen’s Ethical Solution does not present the sort of problem that Cohen supposes. While we might still lament inequality, if justice is about more than just equality, licensing inequalities in the name of justice need not be self-effacing. On the contrary, sometimes constraining the reach of justice serves as a way of respecting the separate worth and importance of individual lives.62 62 The authors would like to thank Jerry Gaus, Bill Glod, Guido Pincione, David Schmidtz, Kevin Vallier, Steven Wall, and an anonymous reviewer for helpful comments on earlier drafts. Special thanks to the participants in a seminar on egalitarianism at the University of Arizona, especially to Tom Christiano who organized and ran the seminar. His early interest in the project was extremely important. <UN><UN> When Justice Demands Inequality 
work_bjvudurxpbayfkeldq42wj6z2m	----	Neutrality, nature, and intergenerational justice Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=fenp20 Environmental Politics ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/fenp20 Neutrality, nature, and intergenerational justice Britta Clark To cite this article: Britta Clark (2020): Neutrality, nature, and intergenerational justice, Environmental Politics, DOI: 10.1080/09644016.2020.1779564 To link to this article: https://doi.org/10.1080/09644016.2020.1779564 Published online: 16 Jun 2020. Submit your article to this journal Article views: 16 View related articles View Crossmark data https://www.tandfonline.com/action/journalInformation?journalCode=fenp20 https://www.tandfonline.com/loi/fenp20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/09644016.2020.1779564 https://doi.org/10.1080/09644016.2020.1779564 https://www.tandfonline.com/action/authorSubmission?journalCode=fenp20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=fenp20&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/09644016.2020.1779564 https://www.tandfonline.com/doi/mlt/10.1080/09644016.2020.1779564 http://crossmark.crossref.org/dialog/?doi=10.1080/09644016.2020.1779564&domain=pdf&date_stamp=2020-06-16 http://crossmark.crossref.org/dialog/?doi=10.1080/09644016.2020.1779564&domain=pdf&date_stamp=2020-06-16 Neutrality, nature, and intergenerational justice Britta Clark Department of Philosophy, Harvard University, Cambridge, MA, USA ABSTRACT Suppose the present generation leaves future ones with a world depleted of all the natural resources required for many valuable human pursuits. Has the present generation acted unjustly? According to contemporary theories of liberal egalitarian intragenerational and intergenerational justice, the answer, it appears, is no. The explanation for this verdict lies in the liberal commitment to remaining neutral between different ways of life: many value-laden environ- mental sites and species are not an all-purpose means to any reasonable human end and so their existence is not directly relevant in an assessment of whether justice obtains. Against this view, I argue that a commitment to neutrality and its underlying justification – the idea that individuals should be equipped to live lives of their own design – in fact supports the opposite conclusion. If justice requires that citizens can pursue whatever way of life they do or might value, then it will also demand the continued existence of the natural resources necessary for those pursuits. KEYWORDS Intergenerational justice; neutrality; John Rawls; future generations; environmental justice Introduction Donald Trump has enacted more sweeping rollbacks of environmental regulation than any president in history. To take a few examples, in 2017 Trump signed bills to reduce the size of Bears Ears National Monument by 85% and the Grand-Staircase Escalante National Monument by 51% (Nordhaus 2018a). In that same year, he withdrew a rule requiring the maintenance of natural resources affected by federal projects and opened the Arctic National Wildlife Refuge to oil and natural gas development (Popovich et al. 2019). Put only somewhat apocalyptically, Trump’s envir- onmental agenda might just leave future people a barren and desolate world void of many of the natural places and species we value now. It is obvious to many that there is something deplorable about bequeath- ing this kind of earth to our children. Former President Obama, for instance, has lamented that ‘rising temperatures could mean no more glaciers in Glacier National Park, no more Joshua trees in Joshua Tree National CONTACT Britta Clark brittaclark@g.harvard.edu ENVIRONMENTAL POLITICS https://doi.org/10.1080/09644016.2020.1779564 © 2020 Informa UK Limited, trading as Taylor & Francis Group http://www.tandfonline.com https://crossmark.crossref.org/dialog/?doi=10.1080/09644016.2020.1779564&domain=pdf&date_stamp=2020-06-16 Park . . . that’s not the America I want to pass on to the next generation’ (Obama 2016). And philosophers often seem to agree. Brian Barry has declared that though future people ‘might learn to find satisfaction in totally artificial landscapes, walking on the astroturf amid the plastic trees while the electronic birds sing overhead . . . we cannot but believe that something horrible would have happened to human beings if they did not miss real grass, trees, and birds’ (Barry 1997, p. 50). Call the world Barry imagines – an earth depleted of what we now call ‘nature’1 – the ‘Horrible World’. But what, exactly, is so horrible about it? This is a big question, and below I will explore one aspect of it. I want to know whether dominant theories of liberal equality register the Horrible World as unjust. For today, I set aside the thought that the Horrible World is aesthetically bad or that the places destroyed were intrinsically valuable.2 To make some progress on this still ambitious inquiry, I proceed in three main sections. In the next section, I examine prominent theories of liberal justice between contemporaries, in particular the work of John Rawls. I argue that the liberal commitment to remaining neutral between conceptions of the good makes these theories unable to diagnose any injustice in the Horrible World. In the subsequent section, I turn to less well trodden territory and argue that Rawls’ view of intergenerational justice, as well as a recent pro- posal drawing on his work, likewise fail to reflect the Horrible World complaint. What, then, are we to make of any lingering suspicion that it is unjust to leave future people the Horrible World? In the final section I argue that neutrality does not in fact warrant the exclusion of natural resources from what future people are owed. In fact, the motivating thought behind neu- trality – that individuals should be equipped to lead lives of their own design – supports the claim that the present generation is obligated to preserve natural resources when those resources are required for the very possibility of a particular pursuit. And, though my argument is first pre- sented in terms of intergenerational justice, it turns out that the preservation of such spaces is also owed to presently coexisting people. I conclude, how- ever, by suggesting some reasons why, when it comes to long-term environ- mental damage, the distinction between intra and intergenerational justice remains salient. To start, let me explain three features of the Horrible World that will shape my discussion: • In the Horrible World, the environmental goods required for many of the projects and ways of life of presently living people no longer exist. I will assume for now that the existence of such environmental goods is indeed necessary for many valuable human pursuits: from recreational pastimes to indigenous spiritual practices to the particular ways of life of small island nations, many undertakings undeniably rely on the existence of lakes, beaches, rivers, and 2 B. CLARK plant and animal species. I am concerned below with both token features of the natural world – Bears Ears National Monument – and more general aspects of the environment such as ‘rivers.’ Following recent sustainability literature, I will often call these environmental goods Sociocultural Natural Capital, or SCNC.3 • In the Horrible World, humans have developed technology that allows them to satisfy, without the use of SCNC, all their basic biological needs. • In the Horrible World, citizens live under otherwise just institutions and have an adequate set of life options to choose from. You might imagine, for instance, that environmental destruction has made other opportunities and ways of life possible. Noting these three qualities of the Horrible World helps make my central question more precise. I am not asking whether future people have been treated unjustly if they are left an environment that provides them with meager life opportunities, or one so depleted that it would make sense to say that their rights have been violated.4 Rather, I want to know whether there is anything unjust about revoking from future people the option for them to participate in currently valuable human pursuits involving the natural world.5 SCNC and intragenerational justice I have cast this question and much of my forthcoming discussion in terms of intergenerational justice, which I am understanding here as justice between individuals that never coexist. And though we are often enjoined to preserve the environment ‘for future generations,’ it would be premature, I think, to continue to investigate the role of SCNC in our nascent theorizing of intergenerational justice without first examining more familiar intragenera- tional proposals. In this section, then, I ask the following: can a standard intragenerational Rawlsian view diagnose any injustice in the Horrible World? I will argue, with others who have come before me, that the answer is no.6 To make my case, we’ll have to step back and consider where SCNC best fits into Rawls’ theory. Rawls himself does not substantively address this. A natural place to look, though, is in Rawls’ answer to what has come to be known as the question of the ‘metric’ of justice. This metric is a description of the features of a representative individual’s situation that are to be assessed to determine whether persons like them have been treated justly. In other words, what, exactly, should we measure to compare different people’s circumstances? ENVIRONMENTAL POLITICS 3 Rawls’ answer to the metric question is influenced by his commitment to allowing individuals to form, revise, and pursue their conception of the good without external influence. This means that the relevant measure of distri- butive shares cannot be based on the satisfaction of an individual’s informed preferences or whether they have at their disposal the goods required for the most important human projects. For Rawls, determining if a person has been treated justly does not depend on whether they have what they actually want or even what they should want. Instead, justice requires that each individual have the resources to autonomously design their life, forming an ever- revisable view about what they want and pursuing whatever that happens to be on equal terms with others. This thought leads Rawls and other liberals to adopt a ‘neutral’ or ‘non- perfectionist’ answer to the metric question. To avoid privileging certain conceptions of the good, thereby constraining some individuals’ ability to pursue whatever projects they deem valuable, the measure of distributive shares must be some set of resources that are useful towards any justice- respecting pursuit. With this in mind, Rawls looks to specify a set of neutral primary goods that ‘normally have use whatever a person’s rational plan in life’ (Rawls 1971, p. 62). ‘Income and wealth,’ and ‘the social bases of self- respect,’ for instance, are paradigmatically neutral primary goods. If instead the metric of justice was some non-universally valuable good – basketballs, let’s say – we would be treating those that do not value basketball as having less of a claim to live a life of their own design. Importantly, though, Rawls does not aspire for the fair distribution of primary goods to have neutral consequences with regard to which ways of life fare best in a society (Rawls 1988, p. 260). Rather, the central thought is this: the metric of justice should be framed not in terms of the final goods that people value, but in terms of the principal means to pursue whatever it is that they do or might value. With this sketch of Rawls’ view in hand, it is clear that the neutrality constraint excludes SCNC from the metric of justice. Despite some envir- onmentalists’ intuitions to the contrary, rivers, lakes, and species are not the kinds of things that everyone has reason to want whatever else they want; SCNC is not an all-purpose means to the realization of one’s plan in life. In fact, many important projects may be best pursued by developing and despoiling such resources. On Rawls’ articulation of the metric of justice, though a just distribution of primary goods will make environmental pur- suits possible, we need not examine SCNC itself to determine if justice obtains. Rawls affirms this conclusion, noting that ‘the status of the natural world and our proper relation to it is not a constitutional essential or a basic question of justice’ (Rawls 1971, p. 246). This approach to SCNC is shared by other liberals. Ronald Dworkin, for instance, leaves SCNC outside the metric of justice for similar reasons of neutrality. He describes a potential dispute between developers looking to 4 B. CLARK construct a ‘useful dam’ and an environmental group advocating for the preservation of a species of snail darter, ultimately concluding that the debate is a matter of equally valid albeit conflicting preferences (Dworkin 1981, p. 202; cf. Miller 1999, p. 160). The debate should be resolved via some democratic mechanism, but whether the snail darter continues to exist is not itself a concern of justice. For these prominent theorists, it looks like including SCNC in the metric of justice would illegitimately import a specific conception of the good into a neutral space, equivalent to claiming that each is owed, as a matter of justice, a share of basketballs. I am sympathetic to this impulse: I do not wish for my argument to turn on the idea that the existence of SCNC is the kind of thing that individuals want regardless of what else they want, or the perfec- tionist claim that pursuits involving nature are superior. Indeed, even if this latter claim were true it would not entail that SCNC ought to be included in the metric of justice. Again, it is a crucial feature of the liberal view that what is most important is not that people take up activities conducive to flourish- ing, but that they are provided the resources to lead lives ‘from the inside’ (Kymlicka 2002, p. 216). What should be clear at this point is that on familiar liberal views, environmental protection is downstream from justice. As Rawls emphasizes, decisions regarding the preservation of SCNC are to be governed by ‘the benefit principle and not the principles of justice’ (1971, p. 250). But this might not be cause for concern: many theorists seem optimistic that a fair distribution of some all-purpose metric will enable citizens to effectively prevent something like the Horrible World. Perhaps, even, though SCNC is not itself a matter of justice, neutral state support can promote environ- mental preservation. Dworkin, for instance, notes that institutional incen- tives may be necessary in order to maintain establishments such as National Parks (Dworkin 1985, ch., p. 11), and Rawls similarly suggests that SCNC is a public good potentially warranting state funding (1971, p. 250). Of course, these provisions remain decidedly neutral – the liberal state cannot impose the protection of SCNC, and decisions regarding environmental preservation should be voted on ‘unanimously, or at least approximately so,’ (Rawls 1971, p. 250).7 Rawls and Dworkin do not discuss natural resources in much more depth elsewhere, and seem confident that the sort of neutral state support outlined above will be enough to preclude the Horrible World. I think this is unduly optimistic. To see this, consider a reasonably just society with a 100-acre forest, a forest that is required for many other important pursuits. What claims do present day people have with respect to this resource on the liberal view just outlined? Few are in support of the thought – pejoratively termed ‘absurdly strong sustainability’8 – that justice requires the forest to remain unchanged over time. Not every instance of environmental modification can plausibly be considered an injustice against ENVIRONMENTAL POLITICS 5 those for whom the resource is valuable. What the forest-valuers are owed on the Rawlsian account is the basic liberties ensuring that their preferences are registered in decisions regarding the forest and a fair share of primary goods to pursue a life involving it if they so choose. The just society, then, will permit some development and degradation of the forest. Even if the state offers neutral tax incentives for cultural institu- tions, there is no guarantee that citizens will choose to support environ- mental protection in light of other options, nor does it seem plausible that they will make large enough contributions to prevent every instance of environmental damage. Suppose, then, that in a super-majority or even unanimous vote like the one imagined by Rawls, the community agrees to cut down an acre of the forest for a basketball factory. The forest is now 99 acres. The next year, citizens vote to install a museum. The forest is now 98 acres. And so on. Eventually, the forest is 50 acres. We have yet to see an instance of injustice. But here is the problem: putatively just environmental modification is strikingly unidirectional. While each instance of benign damage is unlikely to be reversed, every instance of environmental preservation, conservation, or improvement remains subject to contestation. Once the forest is 50 acres, it will likely not return to its former size. It’s hard to see the basketball factory, a source of employment and income, being torn down to return the land to forest. In contrast, the forest-valuers who work to preserve it are always vulnerable to the demands of the basketball-valuers, the museum-valuers, and so on. As Elizabeth Ellis (2016) puts the problem, when it comes to environmental damage, ‘each win for the development side is permanent, while each win for the conservation side is temporary’ (507). In short, the idea here – one commonly evoked in environmental policy and sustainability discussions – is that many environmental damages are irreversible, at least over the timespan of a human life.9 The proposition that some environmental damages are irreversible will be important in what follows. And though I cannot offer a full defense of this contested claim here, let me outline two points in support. First, some instances of environmental modification are, at least at present, technologi- cally irreversible. Species extinction, the sea level rise that threatens historic beaches, soil erosion and desertification, ocean acidification, and the death of coral reefs are just the beginning of a lengthy list of changes that are unlikely to be reversible. Second, psychological factors contribute to the irreversibility of environmental decline. As individuals determine whether they are willing to pay for the preservation of SCNC, they will take as a baseline the condi- tions they have themselves encountered (Horowitz 2002, p. 252). In our forest example, for instance, those that only experience the forest at the diminished dimension of 50 acres will take 50 acres as their standard for environmental quality, and further as loss-averse creatures they will be far 6 B. CLARK more concerned with preventing additional losses to the size of the forest than they will be with a comparable improvement or return to past condi- tions (Kahneman and Tversky 1979). Moreover, even with increased defor- estation they will adapt to changing conditions and be unlikely to notice a decline in wellbeing (Raudsepp-Hearne et al. 2010). It seems plausible then, that these technological and psychological factors render some damages to SCNC irreversible. You would, of course, be right to notice that the claim of irreversibility seems to depend on a further claim of irreplaceability or incommensurability (Sunstein 2008, p. 15–17). That is, what makes irreversible damage to SCNC meaningfully irreversible is the fact that that SCNC has no substitutes. Though substitutability has generated extensive discussion, we can set much of it aside here: the debate tends to turn on whether human-made substitutes can generate the same amount of wellbeing as natural capital like SCNC. All that matters for my purposes, though, is that SCNC is a non-substitutable requirement for the very possi- bility of particular human pursuits. Though I will return to this thought, I will continue to assume for now that this is true. Some ways of life are impossible without the existence of particular resources; this is true regard- less of the amount of wellbeing provided by any alternative. What I hope to have established above is that a basic Rawlsian picture can neither directly include SCNC in the metric of justice nor preclude the Horrible World with additional institutional projections. Further, note that the generation that inherits that Horrible World will not have a legitimate claim to live in a world like ours. Though they are born into depleted circumstances, they can still have all their basic liberties protected, and primary goods can still be justly distributed. And nowhere does Rawls or Dworkin state, nor does it seem plausible, that persons have a claim to be able to pursue any imaginable human project. The future people in the Horrible World on the views just explored have no more of a claim to be able to live lives as snail darter enthusiasts or birders than we presently have a claim to live our lives as Samurai Warriors.10 Thus far, though, I’ve focused on justice between coexisting people. Given the long-term nature of environmental harms, it makes sense that this might not be the right place to look. Intuitively, if there is an injustice in the Horrible World, it is not between the individuals that inherit it, but between currently living people and our Horrible World descendants. Accordingly, I now turn to the less frequented conceptual territory of intergenerational justice. SCNC and intergenerational justice Do liberal theories of intergenerational justice provide additional conceptual resources that might impugn the Horrible World? It’s not entirely clear. ENVIRONMENTAL POLITICS 7 Rawls spent only a few pages discussing justice between non-contemporaries, and in general theories of intergenerational justice are less developed than their intragenerational counterparts. In this section I will argue that a plausible reading of Rawls’ intergenerational theory of just savings does not register the Horrible World as an injustice. Nor can more thorough proposals that – in the spirit of Rawls – conceive of intergenerational justice in terms of the all-purpose resource of ‘ecological space.’ Take note at the outset that I will be assuming that it is possible to stand in relations of justice with future people. Admittedly this assumption may be premature: attempts to defend our obligations to future people run into significant difficulties.11 But I take for granted that there is some currency of advantage that we can use to diagnose – by comparing the life prospects of people that never coexist – cases of distinctively intergenerational injustice. What, then, is the appropriate intergenerational metric? On Rawls’ view, intergenerational justice does not require that non-overlapping individuals holds a particular share of primary goods relative to each other; he rejects an intergenerational difference principle that would allow only those interge- nerational inequalities in primary goods that would benefit those in the worst-off generation (Rawls 1971, p. 255–58, Wall 2003, p. 79). Rather, once just intragenerational institutions are set up, our intergenerational duties are exhausted by the requirement to save sufficient material capital such that future people can maintain those just institutions – the so-called just savings principle (Rawls 1971, p. 284–88).12 Just savings is not particularly demanding. Intergenerational injustice only obtains if those in an earlier generation act such that later generations are no longer able to protect the basic liberties of its citizens, or if the economic institutions that regulate unjustifiable inequalities no longer func- tion. Once more, it’s hard to see how this sketch of Rawls’ intergenerational metric has the conceptual resources to mark any injustice in the Horrible World. Recall that though the Horrible World is horrible by the standards of some of today’s citizens, the Horrible World still has well-functioning and intragenerationally just – by Rawls’ standards – institutions. The citizens of the Horrible World can still pursue whatever versions of the good life have been made available via the destruction of the natural world. Though Rawls himself did not articulate a comprehensive theory of intergenerational justice, some theorists have proposed Rawlsian-inspired views that look to capture the intergenerational character of environmental concerns. Steve Vanderheiden (2009) and Tim Hayward (2006), for instance, rightly observe that, unlike Rawlsian primary goods, many natural resources are finite – or at least there is a finite amount that we can consume without disastrous consequences. Vanderheiden and Hayward call these zero-sum resources ‘ecological space,’ which they define loosely as ‘the amount of biologically productive land and water area required to produce the 8 B. CLARK resources consumed and to assimilate the wastes generated using prevailing technology’ (Hayward 2006, p. 359). The central thought is that intergenera- tional justice should register the fact that one generation’s use of ecological space entails the decline of another’s. Roughly, they propose that ‘each human being should be allocated a share of ecological space’ (Page 2007, p. 460), and that the project of intergenerational justice is incomplete with- out a principle for the intertemporal distribution of uniquely finite natural resources. The idea that ecological space is at least part of the evaluative standard of intergenerational justice shares the liberal commitment to neutrality. Ecological space is taken as a universally valuable resource the fair distribu- tion of which will secure even future people’s capacity to autonomously form and revise their conception of the good. As Vanderheiden puts it, the ‘allocation of ecological space defines the sphere in which persons can make the kind of autonomous choices that liberalism celebrates, within the constraints that it recognizes’ (259). However, despite the important recog- nition of zero-sum resources, ecological space does not capture any injustice in the Horrible World. Conceiving of environmental goods under the single heading of ‘ecological space’ obscures distinctions between the different roles played by such goods, failing to provide theoretical support for the thought that intergenerational justice might require that some specific resources – SCNC – should not be distributed for consumption. Moreover, the concern of theorists of ecological space is centered upon the role of such resources in the provision of basic needs – needs which are provided for in the Horrible World. Though there is more to explore here, the crucial point is this: one generation might use up only its fair share of ‘ecological’ space, while still destroying SCNC. Justice of ecological space is consistent with the Horrible World. So it looks like these two metrics of intergenerational justice do not diagnose the Horrible World as unjust. Where are we to go from here? A first option is to say that the Horrible World intuition is mistaken; the liberal environmentalist must admit that environmental preservation is not a matter of justice. A second option is to argue the SCNC should be included in our theories of intragenerational justice, a route taken up by many green political theorists and philosophers.13 However, these theorists tend not to finely distinguish between SCNC in its role supporting the possibility of certain human projects, and aspects of the environment – clean air and water, a habitable climate – which are more plausibly seen as all-purpose means to one’s ends (e.g., Caney 2010). On this approach, if SCNC is preserved, it seems like a happy consequence of a plausible obligation to maintain other more basic environmental services. Where a distinction is indeed drawn, decisions regarding non-universally valuable environmental goods are left to democratic mechanisms or deliberative procedures that ENVIRONMENTAL POLITICS 9 register only existing people’s preferences (e.g. Miller 1999). Even Marcel Wissenburg, who argues that ‘no goods shall be destroyed unless unavoid- able and unless they are replaced by perfectly identical goods’ (1999, p. 123) leaves a determination of what counts as ‘unavoidable’ to be a matter of existing individual tastes, and explicitly accepts that a ‘global Manhattan without the park,’ in which all SCNC is destroyed, does not necessarily constitute an injustice. Further, though some, including Brian Barry (1997) maintain that future people should be left with a set of ‘adequate options’ from which to design their lives, it is often conceded that it is difficult to offer a principled distinction between the options available in the Horrible World and the options we enjoy today. In sum, the claim that there is some injustice in bequeathing the Horrible World to our successors has not yet enjoyed a reasoned defense. Neutrality and SCNC In this final section, I try to make some progress by approaching the Horrible World intuition from the perspective of intergenerational justice. To do this, I will first defend an idea I’ve thus far assumed: certain human projects can be made impossible to pursue if the resources required for those projects are irreversibly destroyed. If this is right, then a commitment to remaining neutral between different conceptions of the good no longer justifies the exclusion of such resources from the metric of intergenera- tional justice. In fact, the neutralist should endorse the opposite conclusion. If the present generation is obligated to ensure that it is possible for future people to pursue any reasonable conception of the good, then the present generation is also obligated to ensure the continued existence of the resources required for such conceptions. However, though my proposal is most vivid in its intergenerational form, it turns out that the same argu- ment applies to the intragenerational case as well. Does this mean that the distinction is trivial? I will close this section by suggesting some reasons to think that it is not. First, let me review and make more precise exactly the challenge posed to liberals hoping to argue that bequeathing the Horrible World is an inter- generational injustice. We observed above that Rawlsian just savings and ecological space both excluded from the purview of justice resources that are not an all-purpose means to human ends and as a result could not diagnose any injustice in the Horrible World. Theorists seemed optimistic that a fair provision of neutral primary goods will prevent much objectionable irrever- sible environmental damage: citizens will be able to register their preferences for a world with SCNC, and if needed neutral state support can incentivize conservation alongside other public goods. This optimism was perhaps appropriate in earlier times when humankind’s influence was not drastic 10 B. CLARK enough to occasion irreversible environmental damage, but today, I argued, it is unfounded. Yet, an optimism that valuable opportunities will persist is also an impor- tant feature of the liberal view. Liberals celebrate that in the free marketplace of ideas facilitated by the basic liberties, some ways of life will be replaced with more valuable projects and activities. As Mill puts it, ‘the worth of different modes of life should be proved practically’ (Mill 1982, p. 53). The human pursuits that are feasible in a given historical moment are always and should always be in flux, lest people be confined to existing practices in objectionable ways. Conceptions of the good that are most popular in a society should evolve, and as noted a commitment to allowing individuals to lead lives of their own design does not require that each of the innumer- able possible human pursuits is always a popular or practical option. So if leaving the Horrible World is an injustice, it cannot be because those that live in it have been denied a maximally expansive set of options from which to choose. Of course, liberals can’t make the perfectionist claim that citizens in the Horrible World are owed SCNC on the basis of the objective superiority of SCNC-involving pursuits, nor, as I’ve emphasized, is it plau- sible that SCNC is an all-purpose means to whatever one’s ends happen to be. Is there any other principled reason to include SCNC in the metric of intergenerational justice? The challenge can be put like this: without recourse to the above arguments, do we have any reason to distinguish between the fact that today it’s not feasible to be a Samurai Warrior and in the Horrible World one cannot pursue projects involving SCNC? We have already seen a potential basis for making this distinction. Dworkin gives us a hint. The liberal, he says, is free to claim that ‘the conquest of unspoiled terrain by the consumer economy is self-fueling and irreversible, and that this process will make a way of life that has been desired and found satisfying in the past unavailable to future generations . . . this way of life will become unknown, so that the process is not neutral amongst competing ideas of the good life, but in fact destructive to the very possibility of some of these. ’ (Dworkin 1985, p. 202). Here, then, is the response to the challenge that I will explore: some human projects can be made impossible to pursue, and others can only be made less feasible. This is because some – but not all – pursuits necessitate the existence of certain physical features of the world. Thus far, I’ve assumed something like this last claim to be true. I will now clarify and defend this assumption. First, notice that some pursuits are by their very nature concerned with engaging with token places that were of value to one’s ancestors and will likely be of value to one’s progeny (Thompson 2009, Scheffler 2013). Existing members of the Zuni tribe, descendants of the inhabitants of the shrunken Bears Ears National Monument, wish to pursue ways of life that involve not simply canyons and mesas generally, but their particular ancestral homeland ENVIRONMENTAL POLITICS 11 (Nordhaus 2018b). If those token places are irreversibly destroyed, then conceptions of the good that are centered around those specific sites become impossible to pursue. It’s hard to imagine what it would look like to engage with one’s ancestral home if one’s ancestral home has been developed into an oil field. The second and more difficult claim to establish is that some pursuits that do not require such intergenerationally valuable token resources can likewise become impossible to pursue in the absence of certain SCNC. But this is plausible: in the Horrible World a litany of recreational, spiritual, and otherwise valuable human undertakings – birding, fishing, swimming, climbing, gardening – do not seem possible to pursue despite the fact that these projects are not concerned with specific token sites. Notice an impor- tant difference between making a pursuit impossible and making a pursuit less feasible or impractical. Though we find an individual who pursues life as a Samurai warrior odd, in a place like the Horrible World the pursuit of projects involving the natural world will be irrational–comparable to a contemporary individual whose conception of the good involves living with dinosaurs (Ott 2004, p. 144). The Samurai-fighting enthusiast will likely have little success, yet she can meaningfully pursue her admittedly strange idea of a good life. The resources required for Samurai-fighting cannot be irreversibly removed from existence, for there are many ways to construct the required swords and shields. The present generation cannot altogether preclude future individuals from pursuing that particular way of life. In contrast, when it comes to SCNC, this does not seem to be the case: it is simply not possible for the citizens of the Horrible World to pursue any activities involving the natural world with any chance of success. At this point you’re likely worried that this last claim is too strong. It’s not really impossible, you might object, to pursue birding in the absence of real birds; you might devote your life to de-extinction technologies or perhaps virtual birds will do the trick. Looking ahead, you might rightly be concerned that my view will end up being overdemanding: surely it is not a concern of justice if wealthy future people cannot ski in the Alps or raft down a pristine river. This is an important objection, and it sheds light on a larger question that I cannot address in full here. To know whether my view has these sorts of demanding implications, we need to know what counts as a ‘pursuit,’ ‘way of life,’ or ‘conception of the good.’ Further, we need an account of when natural resources are indeed necessary for the very possibility of pursuing a way of life. Though I will not investigate these questions here, I suspect that any plausible account will include both intergenerationally valuable token resources as well as some other general types of SCNC. Regardless of how one answers the above questions, I believe I have identified the right kind of distinction between conceptions of the good that require the existence of SCNC and those that do not. The former is 12 B. CLARK distinctive not because such projects are superior or because those resources are all-purpose means to one’s ends, but because projects requiring SCNC can be made not just impractical but impossible to pursue. The final step is to argue that this distinction can be wielded to show that the Horrible World is an injustice. Recall the motivation supporting liberal neutrality. A neutral metric of justice was important because it embodied the idea that justice should not privilege particular ways of life, but rather ensure that individuals can form a revisable conception of what they value as well as pursue whatever that ends up being. But we also saw above that the intergenerational metrics of just savings and ecological space were consistent with allowing some conceptions of the good to become not just impractical, but impossible. That is, these purport- edly neutral metrics of justice did exactly what they were designed to avoid: they dictated in advance the kinds of lives that future humans can possibly lead. Though individuals in the Horrible World can form and revise their values against a background of ample options, some options will be simply unavailable to them. And they won’t be unavailable in the sense that other undertakings have become more popular. Rather, they are impossible because the resources necessary for those pursuits no longer exist. Put otherwise, the threat to many conceptions of the good is only that humans may cease to value them, and they will become unpopular ways of life. But the threat to conceptions of the good requiring SCNC is distinctive: the resources required for these projects can be irreversibly destroyed, mak- ing these projects impossible to pursue. To be sure, many human under- takings will still fade out of fashion, becoming less feasible or desirable for future people. And for the most part this evolution is the product of humans reflecting on and deciding what is valuable, and teaching their children the same. Those children can form and revise their conceptions of the good in spite of this education, choosing if they wish to return to a way of life that was valued in the past, attempting to convince others to join them. In general the resources needed to do this are available to them. But in some cases, those resources can be irreversibly destroyed, rendering those projects not just impractical or unpopular, but impossible. My conclusion, then, is that a commitment to neutrality does not warrant the exclusion of SCNC from the metric of intergenerational justice. This is the deep truth behind Dworkin’s point: we ought not make particular ways of life permanently unavailable if we are genuinely committed to ensuring that future individuals can lead lives of their own design. An intergenerational metric that excludes SCNC prescribes, in a manner in deep tension with liberalism’s commitment to neutrality, the very sorts of lives that future citizens may be able to pursue. The supposed commitment to neutrality in existing theories of intergenerational justice is anything but, for it allows that the only lives future people can live are those that are still possible once we ENVIRONMENTAL POLITICS 13 have lived ours. When individuals in a future generation wonder whether they have been treated justly by us, I propose that part of the standard of assessment is that we have not made particular ways of life impossible for them to pursue. The fact that I have left fairly open what it means to make a conception of the good impossible to pursue means that my argument does not necessarily endorse as demanding of conservation policies as you might have thought. If ways of life are understood as wide and non-descript – like ‘being outside’ – then it will be virtually impossible for the present generation to fail in an obligation to keep this way of life around. In contrast, if ways of life are narrowly specified – ‘skiing on real snow at X resort’ – our present obligation to maintain the possibility of all such options would impose unreasonable demands. I suspect that the right view falls somewhere between these two extremes. At this point, though, it appears the distinction I have been making between intra and intergenerational justice is not doing all that much work, for the very same reasons that supporting the inclusion of SCNC in the metric of intergenerational justice supports the inclusion of SCNC in what is owed to existing people. If the Horrible World were to come to exist tomorrow, with pursuits involving snail darters, forests, and the like replaced by technological substitutes, existing people would find some ways of life impossible. This restriction, like the intergenerational case, is inconsistent with the liberal commitment to providing to each the required resources to go about pursuing whatever it is they happen to value. Those who already hold or come to form a conception of the good requiring the destroyed resources will find their conception of the good not only unpopular, but impossible, as will future people that might one day wish to pursue projects involving SCNC. However, I think we should keep the intra/intergenerational distinction in clear view. If I am right to think that acting justly towards future people requires not irreversibly restricting their ability to meaningfully pursue conceptions of the good, then the present generation has environmental obligations not easily identified solely in terms of what is owed to present people. First, in what has been called the problem of delayed harms, the present generation might act in ways that occasion irreversible damage to SCNC that will only be felt in the future. Currently living people, that is, could continue to pursue valuable projects over the course of their lifetime while at the same time setting in motion processes that will make these same projects impos- sible in the future. Climate change and extinction are particularly obvious examples of this: we are presently acting in ways that may not make some conceptions of the good impossible for ourselves, but will render those same projects impossible for our successors. Think, for instance, of a future 14 B. CLARK individual who forms a conception of the good involving living on the same Fijian island as their ancestors – an island that will soon be underwater due to anthropocentric climate change. The second reason that the distinction between intergenerational and intragenerational justice remains salient in the case of irreversible environ- mental damage relates to the kind of unanimous decision-making mentioned by Rawls. You might think that when it comes to the goods required for particular projects, an existing generation is within its rights to make that good unavailable for themselves. Acknowledging that not all human projects can be pursued at the same time, the present generation could unanimously vote to make some conceptions of the good impossible in order to more effectively pursue other valuable activities. For instance, we might unan- imously agree to stop funding space exploration in favor of building a new basketball court in every county in America. Similarly, you might think that the present generation could permissibly develop public lands through a unanimous vote. But, if the status of SCNC in the metric of a distinctively intergenerational account of justice is kept in mind, this latter option impermissible. While our successors could reverse the decision to focus on the sporting life instead of life on Mars, future generations cannot choose to continue to pursue those ways of life that have been rendered impossible by the imagined development. In short, recognizing that an obligation to ensure that no conception of the good becomes impossible to pursue is an obligation owed to everyone who will ever live and places more stringent demands and constraints on present action than an exclusive focus on obligations to presently existing people. Conclusion The practical upshot of all this is that environmental preservation and conservation can be justified in terms of the familiar obligation to enable all citizens to pursue whatever it is they do or might value. Though the liberal cannot, on neutral grounds, say that these ways of life are more valuable than the opportunities that might replace them, we can say, on neutral grounds, that no project should be made impossible to pursue. Though I do not fill in an account of when exactly a way of life is impossible, I have suggested there are indeed some conceptions of the good that cannot be pursued in the absence of physical features of the world – SCNC. If this is right, then it appears Rawls was wrong to say that ‘there is no more justification for using the state apparatus to compel some citizens to pay for unwanted benefits that others desire than there is to force them to reimburse others for their private expenses’ (1971, p. 250). In fact, the justification is that, without stricter environmental protection, ways of life that have previously been possible will become meaningless and unintelligible pursuits. ENVIRONMENTAL POLITICS 15 The even broader lesson here, I think, is that our our theorizing about intergenerational justice cannot avoid saying something about what sorts of lives future citizens should have the option to lead. It is an inevitable and benign fact about the development of human societies that the preferences and goals of any generation are deeply influenced by what the past genera- tion themselves valued and what sort of natural and built reality was sus- tained for them. Yet, we have an increasing ability to constrain, in unprecedented ways, the sorts of projects our progeny can pursue. If we are to stay true to a commitment to enabling humans to freely and auton- omously pursue whatever kind of life they find valuable, we must seriously consider our increasing capacity to determine what ways of life remain possible. Notes 1. I will remain neutral with regard to the question of what the term ‘nature’ should refer to. For my purposes, the colloquial thought that nature is all those physical features of the earth that are not of primarily human creation should suffice, but see Chapter 2 in Sakar (2012) for a summary of competing views. 2. Many have argued that there are justice-independent reasons to preserve environmental goods because, for instance, they are intrinsically valuable. See Scanlon (1998, p. 183) for a specific example or Brennan and Lo (2016) for a full survey. 3. See Chiesura and Rudolf (2003), and Satz et al. (2013) for examples. 4. See Brandstedt and Bergman (2013) for a thorough treatment of the rights- based approach to climate change. 5. My analysis could well be extended to other objects that are indispensable for presently living people’s projects: works of art, temples, or churches, for instance. Here, I focus on natural objects, but see Young (1989) for a somewhat similar discussion involving works of art. 6. For some who have come to the roughly similar conclusion that Rawlsians cannot easily accommodate environmental concerns, see Sagoff (2007) Miller and Wissenburg’s contributions in Dobson (1999), and Gardiner (2011). 7. See Brighouse (1995) for an argument that neutrality makes it even more difficult than Dworkin might have thought to justify even neutral state support for cultural projects. 8. See Solow (1974). 9. For instance, the famous ‘precautionary principle’ in the 1992 Rio Declaration demands that ‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation’. 10. Thanks to an anonymous reviewer for highlighting this example; it plays a central role in what follows. 11. For instance, I will not address the non-identity problem here. See Gosseries (2008) and Meyer (2016) for summaries of the various conceptual challenges posed by intergenerational relations. 16 B. CLARK 12. In fact, for Rawls intergenerational justice is a two-stage sequence. Before just institutions are set up, present individuals have an obligation to save to create them (1971, p. 255–258). I will focus on the second stage. 13. For a sampling, see the essays in Dobson (1999). Acknowledgments Many thanks to Elizabeth Ellis, Michael Lebuffe, Jacinta Ruru, and others at the University of Otago for their comments on the initial versions of this manuscript. I am indebted to the United States Fulbright Graduate Student Program for their generous support of a year of research in New Zealand, an experience that inspired this project. Later drafts benefited immensely from the incisive feedback of Lucas Stanczyk, Emilio Mora, Gina Schouten, and many fellow University of Otago and Harvard University graduate students. Thorough observations from three anon- ymous referees were also greatly appreciated. Disclosure statement No potential conflict of interest was reported by the author(s). Funding This work was supported by the Fulbright New Zealand. References Barry, B., 1997. Sustainability and intergenerational justice. Theoria, 44 (89), 43–64. doi:10.3167/004058197783593443 Brandstedt, E. and Bergman, A.K., 2013. Climate rights: feasible or not? Environmental Politics, 22(3), 394–409. doi:10.1080/09644016.2013.775723 Brennan, A. and Lo, Y., 2016. Environmental ethics. In: E.N. Zalta, ed. The Stanford Encyclopedia of philosophy. Stanford: The Metaphysics Research Lab. Brighouse, H., 1995. Neutrality, publicity, and state funding of the arts. Philosophy & Public Affairs, 35–63. 24 1 doi:10.1111/j.1088-4963.1995.tb00021.x Caney, S., 2010. Climate change, human rights, and moral thresholds. In: S.M. Gardiner, ed. Climate ethics: essential readings. Oxford: Oxford University Press, 163–177. Chiesura, A., and Rudolf D., 2003. Critical natural capital: a socio-cultural perspective. Ecological Economics, 44.2–3, 219–231. doi:10.1016/S0921-8009(02) 00275-6 Dobson, A., 1999. Fairness and futurity: essays on environmental sustainability and social justice. Oxford: Oxford University Press. Dworkin, R., 1981. What is equality? Part 1: equality of welfare. Philosophy & Public Affairs, 10, 185–246. Dworkin, R., 1985. A matter of principle. Oxford: Clarendon Press. Ellis, E., 2016. Democracy as constraint and possibility for environmental action. In: T. Gabrielson, C. Hall, J.M Meyer, and D. Schlosberg, eds. The Oxford handbook of environmental political theory. Oxford: Oxford University Press, 505–19. ENVIRONMENTAL POLITICS 17 https://doi.org/10.3167/004058197783593443 https://doi.org/10.1080/09644016.2013.775723 https://doi.org/10.1111/j.1088-4963.1995.tb00021.x https://doi.org/10.1016/S0921-8009(02)00275-6 https://doi.org/10.1016/S0921-8009(02)00275-6 Gardiner, S.M., 2011. Rawls and climate change: does Rawlsian political philosophy pass the global test? Critical Review of International Social and Political Philosophy, 14 (2), 125–151. doi:10.1080/13698230.2011.529705 Gosseries, A., 2008. Theories of intergenerational justice: a synopsis. S.A.P.I.EN.S. Surveys and Perspectives Integrating Environment and Society, 1 (1), 39–49 doi:10.5194/sapiens-1-39-2008 Hayward, T., 2006. Global justice and the distribution of natural resources. Political Studies, 54 (2), 349–369. doi:10.1111/j.1467-9248.2006.00606.x Horowitz, J.K., 2002. Preferences in the future. Environmental and Resource Economics, 21(3), 241–258. doi:10.1023/A:1014592629514 Kahneman, D. and Tversky, A., 1979. Prospect theory: an analysis of decision under risk. Econometrica, 47 (2), 263–292. doi:10.2307/1914185 Kymlicka, W., 2002. Contemporary political philosophy: an introduction. Oxford: Oxford University Press. Meyer, L., 2016. Intergenerational justice. In: E.N. Zalta, ed. The Stanford Encyclopedia of philosophy. Stanford: The Metaphysics Research Lab. Mill, J.S., 1982. On liberty. Harmondsworth: Penguin. Miller, D., 1999. Social justice and environmental goods. In: A. Dobson, ed. Fairness and futurity: essays on environmental sustainability and social justice. Oxford: Oxford University Press, 151–172. Nordhaus, H., 2018a. What Trump’s shrinking of national monuments actually means. In: National geographic, February 2nd. https://www.nationalgeographic. com/news/2017/12/trump-shrinks-bearsears-grand-staircase-escalante-national- monuments/ Nordhaus, H., 2018b. What the bears ears monument means to a native American. In: National geographic, October 18th. https://www.nationalgeographic.com/envir- onment/2018/10/bears-earsmonument-native-americans-photography/ Obama, B., 2016. Remarks by the president at sentinel bridge. In: National archives and records administration. National Archives and Records Administration. Ott, K., 2004. Essential components of future ethics. In: R. Döring and M. Rühs, eds. Ökonomische Rationalität und praktische Vernunft, Würzburg. Würzburg: Königshausen & Neumann, 83–108. Page, E.A., 2007. Intergenerational justice of what: welfare, resources or capabilities? Environmental Politics, 16 (3), 453–469. doi:10.1080/09644010701251698 Popovich, N., et al., 2019. 83 environmental rules being rolled back under Trump. The New York Times. Raudsepp-Hearne, C., et al., 2010. Untangling the environmentalist’s paradox: why is human well-being increasing as ecosystem services degrade? BioScience, 60 (8), 576–589. doi:10.1525/bio.2010.60.8.4 Rawls, J., 1971. A theory of justice. Cambridge: Harvard University Press. Rawls, J., 1988. The priority of right and ideas of the good. Philosophy & Public Affairs, 17, 251–276. Sagoff, M., 2007. The economy of the earth: philosophy, law, and the environment. Cambridge: Cambridge University Press. Sarkar, S., 2012. Environmental philosophy: from theory to practice. Hoboken: John Wiley & Sons. Satz, D., et al., 2013. The challenges of incorporating cultural ecosystem services into environmental assessment. Ambio, 42 (6), 675–684. doi:10.1007/s13280-013-0386-6 Scanlon, T., 1998. What we owe to each other. Cambridge: Harvard University Press. Scheffler, S., 2013. Death and the Afterlife. New York: Oxford University Press. 18 B. CLARK https://doi.org/10.1080/13698230.2011.529705 https://doi.org/10.5194/sapiens-1-39-2008 https://doi.org/10.1111/j.1467-9248.2006.00606.x https://doi.org/10.1023/A:1014592629514 https://doi.org/10.2307/1914185 https://doi.org/10.1080/09644010701251698 https://doi.org/10.1525/bio.2010.60.8.4 https://doi.org/10.1007/s13280-013-0386-6 Solow, R.M., 1974. Intergenerational equity and exhaustible resources. The Review of Economic Studies, 41, 29–45. doi:10.2307/2296370 Sunstein, C.R., 2008. Two conceptions of irreversible environmental harm. U of Chicago Law & Economics, Olin Working Paper, (407), 08–16. Thompson, J., 2009. Intergenerational justice: rights and responsibilities in an inter- generational polity. New York: Routledge. Vanderheiden, S., 2009. Allocating ecological space. Journal of Social Philosophy, 40 (2), 257–275. doi:10.1111/j.1467-9833.2009.01450.x Wall, S., 2003. Just savings and the difference principle. Philosophical Studies, 116 (1), 79–102. Wissenburg, M., 1999. An extension of the Rawlsian savings principle to liberal theories of justice in general. In: A. Dobson, ed.. Fairness and futurity: essays on environmental sustainability and social justice. Oxford: Oxford University Press, 173–198. Young, J.O., 1989. Destroying works of art. The Journal of Aesthetics and Art Criticism, 47 (4), 367–373. doi:10.2307/431136 ENVIRONMENTAL POLITICS 19 https://doi.org/10.2307/2296370 https://doi.org/10.1111/j.1467-9833.2009.01450.x https://doi.org/10.2307/431136 Abstract Introduction SCNC and intragenerational justice SCNC and intergenerational justice Neutrality and SCNC Conclusion Notes Acknowledgments Disclosure statement Funding References 
work_bjwbnyxnoneu7g6b53jbwl5kpm	----	PATRICK TOMLIN* DISTRIBUTIVE JUSTICE FOR AGGRESSORS (Accepted 27 December 2019) ABSTRACT. The individualist nature of much contemporary just war theory means that we often discuss cases with single attackers. But even if war is best understood in this individualist way, in war combatants often have to make decisions about how to distribute harms among a plurality of aggressors: they must decide whom and how many to harm, and how much to harm them. In this paper, I look at simultaneous multiple aggressor cases in which more than one distribution of harm among aggressors is available. I show how such cases pose deep questions concerning the nature, role, and scope of the necessity principle, and its relationship to both liability and narrow proportionality. I argue that a hitherto unrecognised measure – ‘narrow proportionality shortfall’ – and its dis- tribution is relevant in choosing how to distribute harms across aggressors. I then extend this analysis to show how this may help us with a puzzle concerning sequential attacks. I. INTRODUCTION The literature on the ethics of war and self-defence will often employ cases in which one attacker threatens one victim. There is much that we can learn from such cases. But war involves many people attacking many people, and so there are some questions, including those concerning distributing harms among culpable or responsible threats, that do not arise in these single-aggressor cases. Here I investigate cases involving more than one aggressor, focusing on cases of multiple simultaneous threats in which more than one distribution of harm is available. Our central question is this: How should we distribute harm among aggressors? * I am grateful to the Oxford War Group, the ELAC 2017 conference in Oslo, and Benjamin Matheson in particular, for useful comments and discussion. I am especially grateful to Helen Frowe, Kieran Oberman, Kim Ferzan and an anonymous referee for extensive written comments. Law and Philosophy (2020) 39: 351–379 � The Author(s). This article is an open access publication 2020 https://doi.org/10.1007/s10982-019-09373-3 http://crossmark.crossref.org/dialog/?doi=10.1007/s10982-019-09373-3&amp;domain=pdf The paper is an exploration of this topic. Several different issues will be investigated, and some new ideas floated. What draws these different issues and ideas together is that I try to show how con- sideration of this question about distributing harm among aggressors can raise deeper questions about, and help us to clarify our views concerning, the relationships between some key concepts. Most importantly, since it is usually thought to be the necessity principle’s job to compare our defensive options, this topic poses some important, and under-investigated, questions about the necessity principle. These include important questions about necessity’s rela- tionship to liability and narrow proportionality, and the scope of the necessity principle’s application, which is possibly a lot more expansive than has been traditionally thought. Having explored these issues through simultaneous-aggressor cases, I then show how the positions reached potentially have implications for a puzzle gener- ated by sequential threat cases. The article proceeds as follows. In Section II, I introduce some key concepts. In Section III, I introduce two key claims about lia- bility – that necessity is internal to liability, and that liability is a one- to-one relation. In Section IV, through considering multiple-aggres- sor cases, I seek to show that at least one of these claims is false. Sections V and VI investigate the scope of the necessity principle. Once we accept some seemingly uncontroversial claims about necessity’s role in distributing harms across attackers, it becomes very difficult to cordon off necessity from having radical implica- tions. Section VII concerns the relationship between narrow pro- portionality and necessity. I argue that necessity ought to take account of something I call ‘narrow proportionality shortfall’. This analysis is extended by Section VIII in which I argue that necessity must take account of distributive concerns, including the distribution of narrow proportionality shortfall. Section IX takes some key les- sons from simultaneous-aggressor cases and applies them to a puzzle concerning sequential aggressors. Section X concludes. II. LIABILITY, NARROW PROPORTIONALITY, AND NECESSITY: THE BASIC MODEL There are, broadly speaking, two categories of people we might subject to defensive harm: those who are innocent (at least with P. TOMLIN352 regard to the present situation) and those who are not. There are, of course, many finer distinctions we could make, and there are, of course, disputes about how and where to draw the line. Neverthe- less, the line is an important one – whether we are harming an innocent bystander or a liable party makes a big moral difference. In this paper, I focus on harms to culpable and responsible aggressors: people who pose an unjustified threat, and bear enough responsi- bility for that threat to be considered potentially liable to harm. Three key concepts will be referred to throughout – liability, narrow proportionality, and necessity. The paper is in part an investigation of the relationships between these concepts, particularly in contexts in which we face a plurality of potentially liable aggressors. When someone is responsible for an unjustified threat, they are standardly thought to have forfeited some of their rights against harm. This means that they are potentially liable to some defensive harm. When we are liable to harm, we have no complaint against it, and are not wronged by it. However, as Jonathan Quong puts it, ‘a person is never liable to defensive harm generally; rather, a person can only be liable to some particular proportionate level of defensive harm.’1 Narrow proportionality concerns the proportionality of harms with a liability justification. It sets a maximum limit to the harm that may be done to someone under that justification, and is based on a variety of factors, including the level of harm threatened and the aggressor’s level of responsibility.2 Narrow proportionality contrasts with wide proportionality, which concerns the proportionality of harms done to the innocent with a lesser-evil justification.3 Some people think that, at least in some contexts, when people forfeit their rights they forfeit their rights all the way up to the maximum set by narrow proportionality. For example, Kit Wellman distinguishes between strong and weak rights forfeiture, and en- dorses strong rights forfeiture in the context of punishment.4 According to this view, a criminal may be punished up to the nar- 1 Jonathan Quong, ‘Proportionality, Liability, and Defensive Harm,’ Philosophy & Public Affairs 43 (2015): 144–173, at pp. 144–145. 2 Jeff McMahan, Killing in War (Oxford: Oxford University Press, 2009), pp. 19–29; David Rodin, ‘Justifying Harm,’ Ethics 122 (2011): 74–110. Quong denies that responsibility is a factor (‘Proportion- ality, Liability, and Defensive Harm’). 3 McMahan, Killing in War, pp. 19–29. 4 Christopher Heath Wellman, ‘The Rights Forfeiture Theory of Punishment,’ Ethics 122 (2012): 371–393, at p. 375. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 353 rowly proportionate maximum, regardless of whether this punish- ment achieves some further good. However, most, perhaps all, philosophers working on self-defence and war believe in a principle of necessity. This means that they do not endorse strong forfeiture (in Wellman’s sense) in those defensive contexts. In their eyes, narrowly proportionate defensive harms can be impermissible, even when they do no harm to anyone but the responsible threat. In order to be permissible, defensive harm must also be necessary as part of the defensive action. The necessity principle applies most clearly in this kind of case: Imagine I can only fend off an attacker with 20 units of harm. This is narrowly pro- portionate, and it is thus permissible. But now imagine that a new option becomes available, and I can also fend off the attacker with only 10 units of harm. In that case, the 20-unit option includes unnecessary harm, and is thus impermissible. Since using the 20-unit option would involve more harm to the same person to achieve the same end, we can say that this is a case of gratuitous harm.5 Necessity and proportionality, as I understand them here, perform two distinct tasks. Options that would require excessive force given the threat faced are ruled out as disproportionate. Proportionality therefore compares our defensive options with allowing the threat to eventuate. Necessity selects from among our proportionate defen- sive options: Options that would require excessive force given our other proportionate defensive options are ruled out as unnecessary. Necessity therefore compares our defensive options with one an- other. The principle of necessity is not only a principle that limits lia- bility-justified harms. It also limits lesser-evil-justified harms. While I will focus on the relationship between liability and necessity here, it is worth remembering that our account of necessity must suitably limit harmful actions under both justifications. While there is widespread agreement on the requirements of necessity in cases of gratuitous harm, like the one above, there are nevertheless philosophical controversies concerning the principle. For example, there are more complex cases in which it is less easy to determine whether necessity applies and what it requires – the necessity principle is potentially a lot more complex than we might 5 I am grateful to Kim Ferzan and an anonymous referee here. P. TOMLIN354 think from cases of gratuitous harm, and, as we shall see, its rela- tionship to liability is also a matter of controversy.6 III. TWO CLAIMS ABOUT LIABILITY In this section I want to outline two claims about liability. In short form, they are as follows: Claim 1: Necessity is internal to liability Claim 2: Liability is a one-to-one relation I’ll explain each in turn. The first claim, that necessity is internal to liability, is essentially the claim that aggressors are wronged by unnecessary harms, since they are not liable to unnecessary harms. Crucially, this means that what harm one is liable to is in part a matter of what harm is necessary. Others believe that necessity is external to liability. That is, aggressors are liable to narrowly proportionate though unnecessary harms, but it is nevertheless impermissible to impose them. Therefore, while the defensive agent who imposes unnecessary harm acts impermissibly, she does not wrong her aggressor, and the unnecessary harm does not give rise to a complaint.7 The second claim is that liability is a ‘one-to-one relation.’ This is a claim that liability is only concerned with the attacker and their attack. For example, Jeff McMahan states that ‘Liability justifications appear to work by ‘‘pairwise comparisons’’ – that is, by considering each choice between harmings [that is, whether the attacker or the victim is harmed] on its own and determining which of the parties the unavoidable harm ought, as a matter of justice, to be imposed. (This is part of the explanation of why narrow proportionality does not take account of numbers).’8 David Rodin claims that ‘Liability is 6 Seth Lazar, ‘Necessity in Self-Defense and War,’ Philosophy & Public Affairs 40 (2012): 3–44; Jeff McMahan, ‘The Limits of Self-Defense’ in Christian Coons and Michael Weber, eds., The Ethics of Self- Defense (New York: Oxford University Press, 2016). 7 For overviews of these issues, see: Helen Frowe, Defensive Killing (Oxford: Oxford University Press, 2014), ch. 4; Joseph Bowen, ‘Necessity and Liability: On an Honour-Based Justification for Defensive Harming,’ Journal of Practical Ethics 4 (2016): 79–93. 8 Jeff McMahan, ‘Liability, Proportionality, and the Number of Aggressors,’ in Saba Bazargan and Samuel Rickless, eds., The Ethics of War (New York: Oxford University Press, 2017). DISTRIBUTIVE JUSTICE FOR AGGRESSORS 355 a localized comparison between persons in a situation of con- flict…values outside that relationship are irrelevant.’9 Here, then, is a commonly accepted claim about liability – it is a one-to-one relation. However, consideration of multiple aggressor cases should lead us, I will argue, to either reject this claim or to downgrade its importance. IV. NECESSITY AND LIABILITY Consider this simultaneous threat case: Case 1: Victim is attacked by two unconnected persons simultaneously, who both intend to kill her, and will do so unless she defends herself. Both are equally responsible. Repelling either attack will cause the other attacker to abandon their attack. Attacker 1 can be repelled with 10 units of harm. Attacker 2 can be repelled with 20 units of harm. Both amounts of harm would be narrowly proportionate. Proponents of strong rights-forfeiture would appear to be committed to the idea that it is permissible to harm Attacker 1, Attacker 2, or both. Since both have forfeited their rights, and there is no necessity condition, both are liable to be harmed up to the proportionate maximum. Most will not accept this conclusion. Most will argue that Victim may harm Attacker 1 and only Attacker 1. Why? Because this minimizes harm. Since the instruction to harm Attacker 1 is an instruction to minimize harm from within the proportionate options, it seems to be the necessity condition that requires Victim to harm Attacker 1 and not Attacker 2. This is not a case of gratuitous harm, since the two potential harms are to two different people. It is a case of how to distribute harm between two liable parties. But it seems that necessity nev- ertheless has something to say (and most would accept that it is necessity that applies here – after all, if necessity had nothing to say whenever harms might befall different persons, it would hardly apply at all in the context of war). Yet, if necessity does apply here, this case tells us something very important about necessity and its rela- tionship to liability. Recall that it is often thought that necessity is internal to liability (Claim 1), and that liability is a one-to-one relation (Claim 2). But if it 9 David Rodin, ‘Justifying Harm,’ p. 99. Rodin doesn’t here use the language of one-to-one rela- tionships, but I think it is a plausible way to read this claim, given his other work, especially on bloodless invasions. However, even if Rodin has a wider definition of ‘situation of conflict’ in mind, we will need an account of what is within and what is outside that situation – something which, as I will show, is tricky to provide. P. TOMLIN356 is necessity that tells us that we ought to harm Attacker 1 and not Attacker 2 in Case 1, then at least one of these two claims must be false. We have a trilemma, in that we cannot, I argue, endorse the claim that necessity tells us to harm Attacker 1, and Claim 1, and Claim 2. In Case 1, if our judgment that Attacker 1 ought to be harmed is based upon necessity, that judgment can only be reached by com- paring harms across attackers. The harm to Attacker 2 is unnecessary, and that level of harm is unnecessary due to the option of inflicting less harm on somebody else. Therefore, necessity is not simply about pairwise comparisons. Since necessity is not simply about pairwise comparisons, then if necessity, in part, determines what harm we’re liable to (i.e., if Claim 1 is true) then liability is not simply a one-to- one relation (i.e., Claim 2 is false). If, on the other hand, Claim 2 is true, and liability can only be established by pairwise comparisons between each Attacker and Victim, then Claim 1 must be rejected – necessity is not internal to liability. We could claim that Attackers 1 and 2 form a ‘unit’, and so this is a single attack, not two separate attacks. Therefore, liability is not quite a one-to-one relation, but it is still limited to those involved in the ‘situation of conflict’. In order to claim this, a defender of this view will need to give us an account of how to demark ‘situations of conflict’. But even if they were able to do so, the conjunction of Claims 1 and 2 would still be in trouble. Consider this case: Case 2: Attacker attacks Victim threatening to kill her. Victim can defend herself by killing Attacker, or scratching Bystander. It seems that necessity would require us to harm Bystander. All else equal we might think Victim is required to harm Attacker, or let herself be harmed, over harming Bystander. But all else is not equal here. Either Victim or Attacker will end up dead, or Victim can very mildly harm Bystander. Bystander is clearly not part of the ‘situation of conflict’ (she is, after all, a bystander) and yet necessity seems to be telling us that she must be harmed. So we again see that necessity looks across the various harmful options, singling one out. And again, not all of these harmful options will harm people involved in the attack. If necessity helps to determine liability, we must reject the claim that liability is a one-to-one relationship. If liability is a one-to- one relationship (or involves only those who are part of the situation DISTRIBUTIVE JUSTICE FOR AGGRESSORS 357 of conflict) we must deny that necessity helps to determine liability. We could keep Claims 1 and 2 by denying that it is necessity that tells us who to harm in Case 1 and Case 2. On this picture, necessity is more limited, focusing simply on what is necessary to stop this attack (or perhaps it is even more limited, and restricted to ruling out gratuitous harm only). We might then reason through Case 1 as follows. The 20-units harm to Attacker 2 is proportionate and nec- essary. The 10-units harm to Attacker 1 is also proportionate and necessary. And so both attackers are liable to those amounts of harm, since necessity and liability both, on this picture, concern this attacker and the threat that they pose. However, we might think, there is some further principle, external to liability, which states that, of the two necessary harms, one is to be chosen over another. This might be a more general ‘minimizing harm’ principle. One thing to note here is that by postulating two separate prin- ciples – necessity, which is internal to liability, and a minimizing harm principle, which adjudicates between harms to which persons are liable – this view proposes what seems to be a radical revision to defensive morality. The job that the minimizing harm principle is supposed to do is one that necessity has standardly been thought to do – i.e., selecting the minimally harmful option from among our proportionate defensive options. Perhaps they are parts of the same principle – in the way that McMahan has carefully and usefully distinguished between narrow and wide proportionality, perhaps there is a difference between narrow and wide necessity. Narrow necessity is internal to liability, while wide necessity adjudicates between harms to which persons are liable (and, perhaps, other harms too). Here is one potentially attractive entailment of this type of ‘split necessity’ view: since both Attacker 1 and Attacker 2 are liable, it allows us to say that if Victim chooses to harm Attacker 1, she acts impermissibly, but she does not wrong Attacker 1. On this view, you wrong someone when you do more harm than is necessary to them to stop their attack, but you do not wrong them when you fail to minimize harm more generally. However, this view, as currently stated, cannot save the con- junction of Claims 1 and 2. To see this, consider Case 1 again. The position explored above relies on each of the two Attackers being P. TOMLIN358 liable to harm. But, according to this new view, neither attacker is, in fact, liable to harm. If necessity is internal to liability, and liability is a one-to-one relation, then we must look only at the threat each At- tacker poses, and whether the harm to him is necessary to prevent it. On this measure, neither harm is narrowly necessary. There is a way to stop Attacker 1 without harming him at all – namely, harming Attacker 2 – and there is a way to stop Attacker 2 without harming him at all – namely, harming Attacker 1. Therefore, to harm either is to harm him more than is necessary. The view could be amended, however, to fix this problem.10 If narrow necessity rules out comparison with options that harm third parties, then both options in Case 1 are narrowly necessary. In considering whether it is narrowly necessary to harm Attacker 1, I cannot appeal to the fact that I could harm Attacker 2, since Attacker 2 is a third party insofar as the threat posed by Attacker 1 is con- cerned. This reformulated view, however, also has some concerning implications. First, consider a case in which I can either kill my Attacker or run away. Killing the Attacker would be impermissible and would wrong the Attacker, since it would be narrowly unnec- essary. But now imagine that my running away would very mildly harm a Bystander. I would still be morally required to run away, but now I would not wrong the Attacker by killing him. It seems odd to say that in both cases I am required not to kill the Attacker, but I only wrong him in one case. Second, now consider a case in which I could kill my Attacker, or mildly harm a Bystander, but that harming the Bystander would have enormous benefits (for example, it would save my life and five further lives). I would be required to harm the Bystander, but, on this view, would not wrong my Attacker if I chose to kill him, since killing him would be narrowly necessary. Now add an option to run away without harming anyone. According to the view under consideration, the addition of this impermissible option, an option I would be morally required to ignore, would make it the case that I now would wrong my Attacker if I chose to kill him, since killing him is now not narrowly necessary. A further general effect of separating necessity into narrow and wide necessity – with wide necessity operating external to liability – 10 I am grateful to an anonymous referee for comments here. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 359 is that, as with having an external necessity principle more generally, this limits the significance of liability: Showing someone is liable, and that nobody else will be harmed, is not enough to justify harming them. There are further worries with the idea that narrow necessity is internal to liability and that liability is a one-to-one relation. Consider this case with one attacker and two victims: Case 3: Attacker attacks Victim 1 and Victim 2. Individually, each attack would license self- defence up to the narrowly proportionate limit of 10 units of harm. Only shooting the Attacker in the legs, imposing 15 units of harm, will prevent Attacker from completing his attacks. Bystander must decide whether to impose 15 units of harm.11 Now, this case may seem unproblematic. Intuitively, we clearly ought to handle the case as follows. First, the narrowly proportion- ate limit for the combined attacks is 20 units. Second, the necessary force is fifteen units. Therefore, the Attacker is liable to 15 units of force. But recall that we are investigating the conjunction of the claims that necessity is internal to liability, and that liability is a one-to-one relation. The above, intuitive response relies on combining the attacks to establish liability. However, if Claims 1 and 2 are correct, then liability for each attack must be established independently (because liability is one-to-one) and we must establish whether the harm necessary to stop each attack is narrowly proportionate given the aim of stopping that attack (since narrow necessity is internal to liability). So, we first ask whether 15 units is necessary and proportionate for preventing Attack 1. It is necessary, but not proportionate. And so Attacker is not liable to that harm in order to prevent Attack 1. The same is true of Attack 2. And so he is not liable to that harm either. Since he is not liable to 15 units in order to prevent Attack 1, nor 15 units to prevent Attack 2, he is not liable to 15 units in order to prevent both attacks. To be clear, this counter-intuitive outcome is not generated by assuming that liabilities cannot be aggregated. If, for example, Bys- tander could prevent the attack by inflicting 10 units that would prevent Attack 1, and, separately, 10 units that would prevent Attack 2, this would be permissible, since both these harms would be 11 I came to realise this problem with the one-to-one conception of necessity through engaging with Kimberly Kessler Ferzan’s exploration of liability and desert, ‘Defense and Desert: When Reasons Don’t Share,’ San Diego Law Review 55 (2018): 265–290. Ferzan’s work in turn engages with Uwe Steinhoff’s work. P. TOMLIN360 necessary and proportionate to preventing the particular attack, and so Attacker would be liable to both. (For example, if Bystander could shoot Attacker in both arms, independently causing him to drop the guns that threatens each Victim.) The trouble comes because of the conjunction of Claims 1 and 2. If necessity were external to liability (i.e., if Claim 1 were rejected), we could do things in this way: Attacker is liable to 10 units for Attack 1, and 10 units for Attack 2. Therefore, he is liable overall to 20 units of harm. A separate prin- ciple, external to questions of liability, namely necessity, confirms that the necessary harm of 15 units falls below the total amount of harm to which he is liable. However, if we reject Claim 2, and instead seek to establish Attacker’s joint liability for both attacks, then Attacker is potentially liable to up to 2o units of harm (combined narrow proportionality) and actually liable to 15 units (the harm necessary to prevent both attacks). Liability is established by joining the two attacks together. Consider, again, what combining Claims 1 and 2 together seems to require of us.12 Since we must establish liability on a one-to-one basis, and since we must keep necessity internal to liability, then liability must be established on a one-to-one basis. Thus, we are forced to say that 15 units of harm is too much to impose in order to stop Attack 1 and so is disproportionate. And the same is true of imposing 15 units in order to stop Attack 2. However, two separate harms – of 10 units each – would be allowed if they independently stopped each attack. So, if Claims 1 and 2 are true, then we would be allowed to impose 20 units of harm on Attacker, but not 15. This is an odd result, for surely necessity should require us to inflict 15 units of harm over 20 units of harm in order to achieve the same end. Our consideration of the above cases reveals the following. First, necessity (or something like it) must surely consider various harmful options that spread across attacks. Second, it follows from this that one of the following is true: (1) liability is not a one-to-one relation, (2) that necessity is external to liability, or (3) necessity is not the only principle that helps us to adjudicate between proportionate defensive options. Third, if (2) or (3) is the case, then there are external limits on one-to-one liability which seek to limit harm across attacks. If this is true, the claim that liability is a one-to-one relation is 12 I am grateful to Helen Frowe for useful discussion here. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 361 less powerful than we initially might be tempted to think. For lia- bility is not, then, enough to grant us permission to harm, even if nobody who is not liable is in the frame. Although I have speculated here that what we call ‘necessity’ may actually be an amalgamation of concerns or principles, I will largely leave that speculation behind from this point on. Whatever we call it, we are morally required to minimize harms among liable attackers, and this goes beyond the instruction to avoid gratuitous harm. I want to investigate this requirement further, and will call it ‘necessity’ for ease. V. SEPARATE ATTACKS It is tempting to see narrow proportionality and necessity as two limits on defensive harm, with the main difference between them being that narrow proportionality is concerned with features of the threat (‘what you did was out of proportion given the threat I posed!’) while necessity is concerned with the comparative merits of the options available to the defensive agent (‘you didn’t need to do that, you could have done this!’). We now see, however, that, regardless of whether they are internal or external to liability, narrow proportionality and necessity appear to work quite differently in other ways. Narrow propor- tionality looks at the one-to-one relation between attacker and vic- tim (though it can be aggregated, as in Case 3), while necessity seeks to minimize harm across narrowly proportionate defensive options, sometimes directing us to harm one attacker rather than another (as in Case 1), or a bystander over an attacker (as in Case 2). Thus far we have considered cases in which the attacks were in some senses separate, giving rise to different one-to-one relations, but the defensive options were linked by producing the same effects. However, if we extend the analysis thus far, we get some potentially controversial results. Consider Cases 4 and 5. Case 4: Attacker 1 attacks Victim, threatening 100 units of harm. The attack can be prevented by inflicting 100 units of harm on Attacker 1. Attacker 2 also attacks Victim, also threatening 100 units of harm. The attack can be prevented by inflicting 50 units of harm on Attacker 2. Victim can only prevent one of the attacks. Case 5: Attacker 1 attacks Victim 1, threatening 100 units of harm. The attack can be prevented by inflicting 100 units of harm on Attacker 1. Attacker 2 attacks Victim 2, also threatening 100 units of harm. The attack can be prevented by inflicting 50 units of harm on Attacker 2. Neither victim can prevent the attack against herself or the other, but Bystander can prevent one. P. TOMLIN362 The analysis thus far suggests that the requirement to minimize harm stretches across attacks, and attackers. Thus, it would seem to instruct Victim in Case 4 to inflict 50 units of harm on Attacker 2. She is going to suffer 100 units of harm either way, and so the requirement to minimize harm states that she must inflict 50 units of harm rather than 100 units of harm in order to avoid an additional 100 units of harm to herself. Some may find this counter-intuitive. They may think both responses are both narrowly proportionate and necessary, and that Victim can choose as she wishes whom to harm. Both attackers have made themselves liable and may be harmed. But the problem with such a view is that it seems to rely on an account of necessity that was rejected in the previous cases. Cases 1–3 show that necessity, or something like it, gives us guidance that we ought to minimize harm across attackers. This expansive understanding of necessity seems even more controversial when the attacks are fully separate, as in Case 5. In this case, our analysis thus far suggests that Bystander ought to save Victim 2, since doing so minimizes harm and all else is equal. If we transport this expansive view of necessity to war, we will generate some very controversial conclusions. On this view of necessity, if we have two wars we might enter in defence of others, both of which will do the same amount of good, we would be required to enter the war which would do the least harm to culpable aggressors, even though both wars, considered independently, are necessary and proportionate. This is controversial. Especially since there is no principled reason to restrict our options to war. Scholars have noted a controversy about proportionality and what counter- factual is involved: When states decide to go to war, they need to compare ‘going to war’ with ‘not going to war’. How, several philosophers have asked, should we fill out ‘not going to war’? It could be a very demanding standard: A war might be proportionate only if the good it achieves compared with the very best options available to the state is worth the death and destruction involved.13 But 13 David Mellow, ‘Counterfactuals and the Proportionality Criterion,’ Ethics and International Affairs 20 (2006): 439–454; Thomas Hurka, ‘Proportionality and Necessity’ in Larry May and Emily Crookston eds., War: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2008); Kieran Ober- man, ‘War and Poverty,’ Philosophical Studies (forthcoming: https://link.springer.com/article/10.1007/ s11098-017-1012-4). DISTRIBUTIVE JUSTICE FOR AGGRESSORS 363 philosophers have been slower to notice that there is also a similar issue related to necessity.14 Necessity requires us to compare options, but how should we construct our option set? On the expansive view currently under discussion, a war might be necessary only if there is no other way to achieve a comparable level of good or prevention of harm without causing as much harm. Therefore, necessity demands that we should, for example, alleviate poverty over going to war. This may seem overly demanding. We can avoid these demanding entailments if we allow that necessity can apply across persons, but demand that it be restricted to a particular ‘situation’. If we can cordon necessity off in some way, we can say that necessity only applies to the choice between some options, and not to, for example, the choice between a war and alleviating poverty. We might then appeal to some independent ‘minimizing harm’ principle that advises us (or requires us) to minimize harm, but is not related to liability. This proposal is attractive. Indeed, some seem to think it is obviously the way to handle the cases discussed in this paper. I am attracted to this view, but, as I am going to explain, I think it is hard to get it to work. VI. LIMITING NECESSITY’S REACH? Necessity rules on which of our available options we should take. If we are to cordon off necessity, preventing it from applying to a choice between war and alleviating poverty but allowing it to apply to choices about whether to harm an attacker more or less, we must have a principled way of determining the scope of the options to which the necessity principle applies. I think a necessity principle with a limited scope intuitively offers us the best picture, but finding the right way to restrict necessity’s reach is difficult. That is what I want to show in this section. The idea of this section is to lay down a challenge to anyone who denies that necessity dictates that we ought to alleviate poverty rather than go to war: How do we restrict necessity’s reach? The most obvious way to try to delineate a ‘situation’ or set of options to which necessity applies is to do with the people involved. The clearest examples of the necessity principle being breached in- 14 A notable exception here is Kieran Oberman, ‘War and Poverty’; and ‘Killing and Rescuing,’ Philosophical Review 129 (2020). In these papers Oberman argues for a very expansive view of necessity. P. TOMLIN364 volve harming someone more than we need to. If individuals are wronged by being harmed unnecessarily, we might try to limit necessity’s reach by restricting its application to options that harm the same people. For example, we might try this principle: Limiting Principle 1: Necessity applies only to options which harm the same persons. This principle is obviously flawed. First, necessity would not apply in this case: Case 6: Attackers 1 and 2 attack Victim. They can be stopped by killing Attacker 1, or by killing both Attackers. According to Limiting Principle 1, killing both Attackers would not be condemned by the necessity principle, since the two options available harm different sets of people, and so the necessity principle would not apply across these two options. Here’s another principle: Limiting Principle 2: Necessity applies only to options in which some of the same persons will be harmed. This principle has four problems. First, necessity would not apply to the decision in Case 1. Second, this principle would render the jus in bello necessity condition next-to-toothless. Consider this case: Case 7: Platoon needs to capture an enemy base. If they attack from the south, they will need to kill one sentry, Sentry 1. If they attack from the north, they will need to kill Sentries 2-21. This is a clear case of where we would expect the jus in bello necessity principle to apply. According to Limiting Principle 2, it does not. So long as killing 20 enemy soldiers is proportionate, then Platoon should feel free to attack from the north or the south. We might try to set aside Case 7 by claiming that since the enemy soldiers all fight for the same army, this is a special case, and that necessity can apply to groups of people. But, first, this would fly in the face of much contemporary just war theory. And, second, we would no longer be able to compare harms to our own soldiers and civilians with harms to enemy soldiers and civilians. Third, the necessity condition would not apply to this case: Case 8: Country A is threated by Countries B and C. Defending A from either B or C will cause the other to back off. Country D can defeat B with a loss of 100 of B’s soldiers, or C with a loss of 10,000 of C’s soldiers. The third problem with Limiting Principle 2 is that necessity should clearly condemn killing when the same objective can be achieved DISTRIBUTIVE JUSTICE FOR AGGRESSORS 365 without killing anyone. Limiting Principle 2 only seems to apply to choices between options in which someone is going to be harmed. And if we extend it to options in which nobody will be harmed, the principle will then apply to the choice between killing in war and not killing and alleviating poverty. The fourth problem with Limiting Principle 2 is that it is open to what I will call ‘overlapping problems’. Since I discuss these in more depth below (concerning overlapping populations of who is to be saved), I will not detail these issues here. An alternative to focusing on the parties to be harmed is to limit necessity’s reach by focusing on the people to be saved. As Kieran Oberman observes, when we ask whether harm is necessary, it can only be necessary or unnecessary to achieving some goal.15 Since, in cases of both self-defence and other-defence, our goal is to save people, we might try limiting necessity by looking at options which save the same people. For example, in Case 1, Victim aims to save herself. How much harm, she might ask, is necessary to achieve this aim? Therefore, we might use this principle: Limiting Principle 3: Necessity applies only to options in which the same people are to be saved. This principle implies that if we could kill Ted to save 100 people, or kill nobody and save the same 100 plus Bill, necessity would not dictate that we choose the latter option, since the same people are not saved in both options. We could amend Limiting Principle 3 to avoid this implication if we allowed necessity to apply only to options in which at least the same people are saved (i.e., to options which save some core group and options Pareto superior to those). However, even under this revised reading, in a war context, necessity would have no bearing on this choice:16 Case 9: Country A aims to save Country B from Country C. This involves sending troops into Country B. A is confident it will win the war, but there will be civilian casualties. If A’s army enters B from the east, 1000 civilians from the eastern district will be killed. If A enters B from the west, 10,000 civilians from the western district will be killed. Here, since different people will be killed, different people will be saved. If A chooses to enter from the east, the 10,000 westerners who would be killed under the alternative plan will instead be saved. We could instead try this principle: 15 Oberman, ‘War and Poverty’; ‘Killing and Rescuing’. 16 For related discussion, see Oberman, ‘War and Poverty’, section 5. P. TOMLIN366 Limiting Principle 4: Necessity applies only to options in which some of the same people are saved. Here is my worry with this principle. Consider the following ‘overlap case’: Case 10: Aggressor attacks Victims 1, 2, 3 and 4. Option 1 saves Victims 1 and 2, at a cost of 10 units of harm to Aggressor. Option 2 saves Victims 2 and 3 at a cost of 100 units. Option 3 saves Victims 3 and 4 at a cost of 1000 units. Now, compared pairwise under Limiting Principle 4, necessity says we must choose Option 1 over Option 2, Option 2 over Option 3, but that we have a free choice between Options 1 and 3, since necessity doesn’t apply to that choice. So, necessity doesn’t necessarily tell us to do anything regarding the choice between Options 1, 2 and 3. Perhaps this is not a problem: Perhaps necessity is not an issue of pairwise comparisons, but of comparing a full range of options. Provided that Option 1 saves some of the same people as Option 2, and Option 2 saves some of the same people as Option 3, perhaps necessity applies to the choice between all three options. However, if we view necessity in that way, then two new worries arise. The first is that necessity faces a difficulty from the ‘principle of irrelevant alternatives’. According to Limiting Principle 4, provided there is a ‘chain’ of options in which at least some of the same people are saved in adjacent options, then necessity applies across the whole range of options. So, in Case 10, you should select Option 1, since 1>2>3. Let’s now remove Option 2. Removing Option 2 which you weren’t going to choose anyway, means that you now have a free choice between Options 1 and 3. More importantly, Limiting Principle 4 does not necessarily mean that necessity would not apply to a choice between war and allevi- ating poverty. Often a choice between a war and alleviating poverty will involve saving at least one person in common. But even if not, we simply need to be able to construct a ‘chain’ of options (however morally implausible some of them may be) and the options of war and alleviating poverty will then become subject to the necessity constraint. For example, imagine that we are deciding whether to militarily intervene in Country A or alleviate poverty in Country B. Provided we also have the (morally implausible) option of devoting all of our resources to saving only Lukas from Country A and only DISTRIBUTIVE JUSTICE FOR AGGRESSORS 367 Max from Country B, then necessity applies, according to Limiting Principle 4, to the choice between war and alleviating poverty. I don’t have any answers here. My intuitions tell me that, at least when it comes to harming the potentially liable, necessity is re- stricted to particular defensive situations. However, it is very hard to find a principled way of restricting necessity. VII. NECESSITY AND NARROW PROPORTIONALITY Necessity and narrow proportionality are usually thought of as independent tests. Narrow proportionality establishes upper limits on harm, necessity tells us to minimize harm. Our job as defensive agents is to check that they coincide: that the option which mini- mizes harm is below the threshold set by (aggregated) narrow pro- portionality. In this section, I want to argue that the relationship between narrow proportionality and necessity is potentially more complicated than this. I will argue that whether a harmful action can be deemed nec- essary involves looking at something I call ‘narrow proportionality shortfall’. If I am right, this shows two things. First, even if necessity is external to liability, the relationships between the various concepts remain complex. We cannot simply say that narrow proportionality sets an internal limit based on pairwise comparisons, whilst necessity sets a fully independent external limit that is concerned with aggregate harm, since narrow proportionality is an important con- cept in deciding the permissible distribution of harms across a plu- rality of responsible threats. Second, since necessity is sensitive to narrow proportionality, this shows that they are two distinct criteria. This is in contrast to some recent scholarship that has sought to show that necessity and proportionality are but two sides of the same coin.17 Consider this case: Case 11: Victim is attacked by two unconnected persons simultaneously. It is narrowly pro- portionate to impose 200 units of harm on Attacker 1, and 20 units of harm on Attacker 2. Repelling either attack will cause the other attacker to abandon their attack. Attacker 1 can be repelled with 21 units of harm. Attacker 2 can be repelled with 20 units of harm. In this case, it is more harmful to repel Attacker 1 than Attacker 2. 17 Lazar, ‘Necessity in Self-Defense and War,’ pp. 17–18; Thomas Hurka, ‘Proportionality in the Morality of War,’ Philosophy & Public Affairs 33 (2005): 34–66, at pp. 37–38. P. TOMLIN368 So, any view under which necessity merely requires us to minimize harm, or to minimize priority-weighted harm, would instruct Victim to harm Attacker 2. But, in my view, necessity instructs Victim to harm Attacker 1. Seth Lazar and Jeff McMahan argue that necessity does not demand that we minimize harm (all else equal) but rather that we minimize morally-weighted harm (all else equal). That is because when we must choose, for example, between a harm to an attacker and a slightly lesser harm to an innocent bystander, we should harm the attacker who has created the situation in which someone must be harmed.18 My claim here is that harms to culpable aggressors can also have different moral weightings. Narrow proportionality represents the maximum possible harm that can be justified under a liability justification for achieving some specific good. In Case 11, harming Attacker 1 involves inflicting roughly one-tenth of the harm to which he is potentially liable. Repelling Attacker 2 involves inflicting all of the harm to which he is potentially liable. Necessity should take account of this. Just as necessity should distinguish between harms done to the innocent and those done to the liable, so it should distinguish within harms done to the liable. It can do this if the moral weighting of harm takes account of what I call the ‘narrow proportionality shortfall’ – that is, how far short of the maximum potential liability, or narrowly pro- portionate limit, a harmful action is. In Case 11, the narrow pro- portionality shortfall of harming Attacker 1 with 21 units is 179. The narrow proportionality shortfall of harming Attacker 2 with 20 units is zero. This huge discrepancy in narrow proportionality shortfall explains why we should harm Attacker 1, even though this does more harm. Case 11 shows that necessity is concerned with narrow propor- tionality shortfall. There are several ways that we might incorporate this concern with narrow proportionality shortfall into a theory of necessity. Here are three. First is the extreme view, in which this concern for narrow proportionality shortfall is the only concern when considering harms to potentially liable parties. In other words, there is no concern with absolute levels of harm, and a concern only with narrow proportionality shortfall. According to this view, nar- row proportionality sets a baseline against which to measure harm. 18 Lazar, ‘Necessity in Self-Defense and War,’ p. 6; McMahan, ‘The Limits of Self-Defense’. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 369 Here is how this view would handle Case 11. Since Attacker 1 is potentially liable to 200 units of harm, the ‘baseline’ against which we measure harms to him becomes -200 units. Essentially, that means that we will prefer 200 units of harm to him over a single unit of harm to an innocent person (whose baseline remains at 0). Only once we have filled the full quota of harms to which you are potentially liable will we look at harming an innocent person. Since Attacker 2 is potentially liable to 20 units of harm, his baseline becomes -20 units. Therefore, any distribution of harm in which Attacker 1 has fewer than 180 units of harm is to be preferred to any distribution in which Attacker 2 is harmed at all, because only once Attacker 1 has received 180 units of harm will the two be on equal footing. I think this view has a compelling logic, though it is counter-intuitive. Should we prefer 180 units of harm to Attacker 1 over one unit of harm to Attacker 2? Second is the proportion view. In Case 11, 21 units of harm is roughly 10 percent of what Attacker 1 is potentially liable to, while 20 units of harm is 100 percent of what Attacker 2 is potentially liable to. We might think necessity dictates that we should prefer which- ever harm is a lesser proportion of the harm to which the Attacker is potentially liable. However, this again could generate cases in which we should prefer hundreds of units of harm to one potentially liable attacker over a single unit of harm to another. Third is the mixed view. On this view, the concerns outlined in either or both of the extreme view and the proportion view are coupled with a concern to minimize absolute levels of harm. I prefer this view. But the central point is that, whichever of these we choose, if we accept that narrow proportionality shortfall matters to necessity, then the following three things follow. First, this is further evidence that, if necessity is internal to liability, then liability is not a one-to-one relation – necessity (and thus liability) chooses which of the potentially liable persons we should harm, based on facts about other persons. Second, it shows that necessity and narrow propor- tionality are independent concepts, one of which informs the other. Third, it shows that a moral consideration (namely, necessity) prefers harms that are further away from narrow proportionality thresholds to those that are close to the maximum liability. If, all else equal, necessity demands that we maximize narrow proportionality short- P. TOMLIN370 fall, then it shows morality to be sensitive to how close harms get to the narrow proportionality threshold. This final point will become important when we consider sequential aggressor cases. VIII. NECESSITY AND DISTRIBUTION Thus far we have largely considered cases in which we must choose which of multiple simultaneous aggressors we ought to harm. However, sometimes we might also have choices of harming more than one aggressor, and different distributions of harm may be available. For example, consider this case: Case 12: Victim is attacked by Attacker 1 and Attacker 2. It will be narrowly proportionate to inflict 100 units of harm on either. Victim has three defensive options: 100 units of harm to Attacker 1; 100 units of harm to Attacker 2; and 51 units of harm to both. In my view, Victim ought to harm both with 51 units, even though this is more harm overall. This cannot be because we must minimize harm. It also cannot be because of maximizing narrow proportion- ality shortfall – the total narrow proportionality shortfall of harming one of the attackers is 100, the total narrow proportionality shortfall of harming both is 98. Most straightforwardly, this case shows that we should be con- cerned not only with harm, but with the distribution of harm. Before we delve into what this distributive concern is, if we accept that in Case 12 Victim ought to inflict 51 units of harm on both attackers, then we face a conceptual choice. One is to fold this distributive concern (whatever it may be) into necessity – allowing distributive concerns to affect the moral weighting of harm. Another is to introduce such concerns as an independent desideratum.19 The cost of this position, however, is that necessity is relegated from hard side-constraint to defeasible desideratum, since this independent distributive concern would allow us to depart from necessity’s rec- ommendations. Therefore, I think it makes more sense to fold this concern into necessity. So, some kind of distributive concern should be added to the moral weighting of harm. But this doesn’t show that we must be concerned with (say) an equal distribution of harm. This distributive concern might itself be sensitive to narrow proportionality shortfall. Consider the following case: 19 Lars Christie suggested this to me. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 371 Case 13: Victim is attacked by two unconnected persons simultaneously. It would be narrowly proportionate to harm Attacker 1 with 40 units of harm, and Attacker 2 with 20 units of harm. The following defensive options are available. Option A: Both attackers are harmed with 20 units of harm. Option B: Attacker 1 receives 30 units of harm, and Attacker 2 receives 10 units of harm. In this case, the total amount of harm (40 units) and the total narrow proportionality shortfall (20 units) remain constant between the two options. All that changes is the distribution of harm (in Option A 20- 20, in Option B 30-10), and the distribution of the narrow proportionality shortfall (in Option A 20-0, in Option B 10-10). My own view is that necessity requires Option B in this case. Were necessity focused on minimizing narrowly proportionate harm, we’d expect it to be indifferent between Options A and B. If necessity cared about minimizing harm and distributing that harm as equally as possible, we’d expect it to prefer Option A. Here are two views which would account for preferring Option B. Equality of Narrow Proportionality Shortfall: All else equal, fairness between attackers requires equalizing the distance from the narrowly proportionate limit of harm to which they are potentially liable. Shifted-Baseline Prioritarianism: Units of harm are not equally bad – they get worse the more harm there is. When someone is potentially liable to some harm, this shifts the ‘baseline’ against which we measure how bad the harm is. For example, the 201st unit of harm to somebody who is potentially liable to 200 units of harm should be considered of equal badness to the 21st unit of harm to someone who is liable to 20 units of harm, and to the first unit of harm to someone who is not liable to any harm. The first unit of harm to someone who is potentially liable to 20 units of harm equally weighted to the 181st unit to someone who is potentially liable to 200 units. The idea with Shifted-Baseline Prioritarianism is that harm gets progressively worse, as in standard prioritarianism,20 but narrowly proportionate harms are discounted.21 Importantly, though, not all units of narrowly proportionate harm are given the same discount: Those closest to the narrowly proportionate limit are given very little discount. Those further away are given progressively more and more discount. This position would give us the advantage of caring both about total harm, and about total narrow proportionality shortfall (the view that I found most attractive in the previous section) with one underlying explanation – we care about total morally weighted and priority-weighted harm, and the priority-weight- 20 Derek Parfit, Equality or Priority? (Kansas: University of Kansas, 1991). 21 This may, therefore, be a specification of Richard Arneson’s ‘Responsibility-Catering Prioritari- anism.’ Richard J. Arneson, ‘Luck Egalitarianism and Prioritarianism,’ Ethics 110 (2000): 339–349. P. TOMLIN372 ing baseline is shifted by narrow proportionality. I will not investigate further which of these two options we should endorse. It may be that which is preferable turns on deeper questions concerning distributive ethics that I cannot venture into here, although it may be that narrowly proportionate harms are sui generis, and we can, say, endorse prioritarianism within the limits of narrow proportionality while rejecting it outside. Similarly, we may endorse equality under normal circumstances, but find the idea of having to make sure we treat attackers fairly unpersuasive. Instead, I want to draw out several implications of the views suggested. It seems that both counsel that harms closer to the nar- row proportionality limit are, in some sense, something to be additionally wary of, or harder to justify. They are not the same as harms further from the narrow proportionality limit. In Equality of Narrow Proportionality Shortfall, this commitment manifests itself in a concern to fairly distribute the avoidance of these harms, rather than the harms themselves. In Shifted-Baseline Prioritarianism, this mani- fests itself in weighting harms closer to the limit more heavily than those further away. One implication of this concerns some cases that are, conceptu- ally and normatively, difficult. The most clear cases for the principle of necessity – both in terms of whether it applies as a principle, and in terms of what it recommends – are those in which the exact same good can be achieved by more or less harm to the same person (i.e., what we have called gratuitous harm cases). But there are also cases in which our options vary both in terms of how much harm and how much good we will do. For example, consider this case: Case 14: Attacker threatens Victim with 40 units of harm. Victim can prevent 39 units of harm by imposing 60 units of harm on Attacker, or she can prevent all 40 units by imposing 70 units of harm on Attacker. The narrow proportionality limit is 100 units. In some ways, choosing between these options is clearly an issue for the principle of necessity. Both options are narrowly proportionate, so we have a choice between narrowly proportionate options, and it is necessity’s job to select between such options. But in another way, it is more like a proportionality calculation. That is because, in essence, Victim’s decision is whether ten units of additional harm to DISTRIBUTIVE JUSTICE FOR AGGRESSORS 373 Attacker can be justified to prevent one unit of additional harm to herself.22 My point here is simply this. If we allow that narrowly propor- tionate harms are harder to justify the closer to the narrowly pro- portionate limit they get, this will impact on how we treat such cases: This isn’t a case of weighing one unit of harm to an innocent person against ten units of harm to an aggressor, which is how such cases are usually discussed. It is a case of weighing one unit of harm to an innocent (which may itself be priority-weighted) against ten units which range from 40 to 30 in terms of narrow proportionality shortfall. Keeping the unit of harm to the Victim constant, such a unit may justify ten units of harm to an additional aggressor who hasn’t yet been harmed, but may not justify ten units of additional harm to an aggressor who is already going to receive 60 units from a limit of 100. IX. SEQUENTIAL ATTACKS Thus far, I have focussed on simultaneous threat cases: cases in which a plurality of aggressors poses threats at the same time. In closing, I’d like to apply some of the lessons that we have drawn from simultaneous-threat cases to sequential-threat cases. There is an important puzzle concerning sequential-threat cases. According to Frances Kamm, there is no limit to the number of aggressors whom I could kill in order to save my own life. Since killing in order to fend off each attack, taken on its own, is necessary and narrowly proportionate, Kamm reasons that there can be no objection to the collection of defensive actions: ‘One compares the wrong to be avoided with what would have to be done to each wrongdoer one at a time, and if there is no violation of propor- tionality in any individual comparison then there is no violation tout court.’23 Yet many of us are deeply troubled by the idea that, provided we can kill one aggressor in order to achieve some goal, we can kill an infinite number of aggressors in order to achieve that goal. Is there some way to avoid this implication? There is, of course. Since the implication arises from the picture of self-defence and war that has 22 Lazar, ‘Necessity in Self-Defense and War’; McMahan, ‘The Limits of Self-Defense’. 23 F.M. Kamm, Ethics for Enemies (New York: Oxford University Press, 2011), pp. 133–134. P. TOMLIN374 emerged from both ancient and recent scholarship on this issue, we could rip up this picture and start again, making sure that the new picture doesn’t have the unpalatable implication that we can kill infinite aggressors. This is too hasty – this model serves us well in general, and so we should do all we can to preserve its core con- ceptual and normative commitments. Ripping it up would be to throw the baby out with the bathwater. Alternatively, we could stipulate that one cannot kill an infinite number of aggressors. But this response is ad hoc.24 To forewarn: I do not claim to solve this puzzle in what follows. But I do think that what we have learned about liability and necessity in simultaneous-attack cases might help us with this puzzle. First, it is important to understand that necessity applies across attacks and is a moral concern for minimizing harm not just within a one-to-one relationship but across such relationships. Several philosophers have suggested that there may be some countervailing reasons against harming those whom it would be individually nar- rowly proportionate to harm, but which derive from aggregation of narrowly proportionate harms. For example, David Rodin argues that wide proportionality is concerned with the way that harms to the liable add up, while Jeff McMahan proposes an additional form of proportionality – proportionality in the aggregate.25 McMahan’s proposal in particular may seem somewhat mysterious. In defence of the existence of proportionality in the aggregate, McMahan is unable to point toward much other than that it gets the intuitively right answers – in other words, it sails a little too close to the ad hoc response to the puzzle. What we have discovered in the present paper is perhaps partial evidence for the existence of something like proportionality in the aggregate – there are other elements of defensive morality that work in similar ways. They constrain harms and dictate choices of harms between multiple aggressors, even when each harm, were it the only option, would be proportionate, necessary, and permissible. Neces- sity reveals a concern for the comparative lessening of such harms. But wouldn’t it be odd if morality were keen to limit such harm 24 I am grateful to Victor Tadros for discussion which helped me to see these twin dangers. 25 McMahan, ‘Liability, Proportionality, and the Number of Aggressors’; Rodin, ‘Justifying Harm’. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 375 comparatively but not absolutely? If so, proportionality in the aggregate would seem to be on a somewhat firmer basis. Relatedly, McMahan in particular takes the apparent one-to-one nature of liability to be what generates the puzzle. But we now see that either liability is not one-to-one (if necessity is internal to lia- bility), or that liability is subject to external checks (if necessity is external to liability). Therefore, there are other parts of defensive morality that already operate in ways that are similar to propor- tionality in the aggregate. This makes McMahan’s response to Kamm’s puzzle less mysterious. Second, in addition to these general points about necessity, we have found a more direct link between necessity and narrow pro- portionality. Necessity takes account of narrow proportionality. It is concerned with maximizing narrow proportionality shortfall, and with its distribution. Here, I think there is potentially the beginnings of a justification and understanding of the way in which narrowly proportionate actions can add up to a disproportionate course of action. Necessity seems to prefer harms further away from the narrow proportionality threshold than those nearer to it. This sug- gests that harms close to the narrow proportionality threshold can be justified, but are worse, harder to justify, or to be avoided more, than those further away. My tentative view is that these observations can provide a firmer backing for the kinds of restrictions on harming responsible threats articulated by McMahan and Rodin. McMahan’s proportionality in the aggregate could, I think, be understood as the way in which narrow proportionality shortfall can aggregate. We have seen that necessity prefers harms that are a greater distance below the narrow proportionality line, even if those just under the line could be jus- tified in a single attacker case. If a series of harms are close to the line, then the same concerns that motivate necessity’s preference for harms further away from the line could motivate a concern with the aggregation of harms close to the line. The thought here is simple: Necessity is concerned with minimizing ‘only just’ proportionate harms. If there are differentiations within narrowly proportionate harms, such that we are concerned with how close to the line harms get, we might also be concerned with how these harms aggregate. P. TOMLIN376 In particular, the Shifted-Baseline Priority View would seem to lessen the gap between narrow and wide proportionality. It doesn’t eliminate the difference, but it does mean that the two kinds of proportionality are not as different as may first appear. What narrow proportionality does, on this view, is (differentially) discount harms to the potentially liable. These harms still count though – they’re not morally free shots – and so many harms that are right on the narrow proportionality threshold can aggregate just as harms to the innocent can aggregate. This view of narrow proportionality as a progressive discounting mechanism might therefore provide some backing for Rodin’s view. This also would explain why proportionality in the aggregate can differentiate between culpable and responsible threats. Responsible and culpable threats are both liable to be killed in order to save a life. However, we should differentiate between de facto limits to liability and de jure limits to liability. De facto, the limit will often be the same – killing is just about the worst thing you can do to a person, and both are liable to be killed. But culpable aggressors can be liable to far greater harms than those they threaten to impose on others – for example, it is proportionate to kill a culpable aggressor to avoid being paralyzed, even if one will have many good years as a para- lyzed person. Therefore, the de jure limit to avoid being killed by a culpable aggressor is far higher than death, and far higher than the de jure limit on a responsible threat. Therefore, when we kill many responsible threats, we impart many harms very close to the narrow proportionality threshold. This is not the case when we kill many culpable aggressors (if the good at stake is a person’s life). It may be that there is some limit to the number of culpable aggressors we can kill to save a single life (I think there is) but it will be far higher than the number of responsible threats. I won’t pretend that what I have said in this section is any more than a sketch of a defence of McMahan’s and Rodin’s responses to Kamm’s view. But thinking through simultaneous-aggressor cases, and what we learn about liability, necessity, and narrow propor- tionality from such cases, certainly makes Kamm’s logic seem less compelling. In particular, I would now reject the thought that lia- bility is simply a one-to-one relation, and Kamm’s view seem com- pelling in part because of that assumption. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 377 X. CONCLUDING THOUGHTS This paper has covered a lot of ground. The common thread throughout has been thinking about cases involving more than one attacker, and how we should distribute harms between those attackers. Consideration of these cases raise major issues in terms of how to understand the principle of necessity, its relationship to lia- bility and narrow proportionality, and its scope. In particular, I have argued for the following: 1. Necessity ought to tell us which of two potentially liable parties to harm. It follows from this that (a) necessity is either not internal to liability, or liability is not a one-to-one relation; and (b) if necessity is external to liability, then necessity, as an external principle, takes ac- count of the distribution of harms across attackers. 2. Necessity possibly has different components or concerns, or is possibly an amalgam of distinct principles (for example, avoiding gratuitous harm, minimizing morally-weighted harm, distributing morally- weighted harm). Some of these concerns or principles may be internal to liability (narrow necessity), some external (wide necessity). 3. Once we realise that necessity applies across individuals, it becomes very difficult to cordon off necessity so that it applies to the choice between some options and not others. We must either supply a principled way of restricting necessity’s scope, or accept that it has a far greater reach than traditionally supposed, not only directing us in how and whether we go to war to pursue some end, but whether we pursue that end or another. 4. Necessity should be sensitive to ‘narrow proportionality shortfall’ – that is, how closely the various harms one is deciding between are to the narrow proportionality threshold. 5. Necessity should take account of distributive concerns, including the distribution of narrow proportionality shortfall. I articulated two principles for doing so, Equality of Narrow Proportionality Shortfall and Shifted-Baseline Prioritarianism. 6. These findings may help us in thinking about sequential attacks. That (a) liability is not a one-to-one relation, or morality allows external checks on liable harms that seek to limit them, and (b) necessity cares about the distribution of harm and narrow proportionality shortfall, may provide some support for the idea of ‘proportionality in the P. TOMLIN378 aggregate’ in sequential-attacker cases, a notion which suggests that you cannot kill an infinite number of liable aggressors if your cause would allow you to kill one. OPEN ACCESS This article is licensed under a Creative Commons Attribution 4.0 Inter- national License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http:// creativecommons.org/licenses/by/4.0/. Department of Philosophy University of Warwick, Coventry, UK E-mail: patrick.tomlin@warwick.ac.uk Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. DISTRIBUTIVE JUSTICE FOR AGGRESSORS 379 http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ Distributive Justice for Aggressors Abstract Introduction Liability, Narrow Proportionality, and Necessity: the basic model Two Claims about Liability Necessity and Liability Separate Attacks Limiting Necessity’s Reach? Necessity and Narrow Proportionality Necessity and Distribution Sequential Attacks Concluding Thoughts Open Access 
work_bkfcda5vbjevjfijgk5dd35eju	----	BJGP Back pages-Master[1] Contents British Journal of General Practice, November 2009 871 Viewpoint BackPagesTHE 872 ESSAY Diagnostic safety-netting Susanna Almond, David Mant and Matthew Thompson 874 COMMENTARY Roger Neighbour 875 ESSAY Little Miss Why’s learning journey Tara George 876 Diagnostic delusions Mike Fitzpatrick 877 VIEWPOINT Role models, radicals, and reactionaries Keith Taylor 878 VIEWPOINT General practice at the margins: a student’s experience of homelessness Kirsty Duncan 879 VIEWPOINT A conferring Dermot Halpin 880 DIGEST Book review Iain Bamforth 882 Monsters Saul Miller GENES, GENDER, SPORT, AND JUSTICE In August the papers were full of Caster Semenya, the South African athlete who won the 800 metres at the world championships in Berlin, but who, because of her outstanding performance was to be tested to establish whether she was eligible to compete as a woman. In statements this was described as ‘a medical matter’.1 Presumably the suspicion is that Semenya has androgen insensitivity, or another metabolic anomaly which leads someone with XY chromosomes to have a female body. No doubt when the results are available it will again be headline news. The case raises questions about gender, but also about fairness in sport and the role of medicine in this. Firstly there is the wellbeing of the individual athlete. Whatever the situation, it must be very unpleasant to have a fundamental aspect of your identify dissected in public. Surely the system could better protect athletes’ feelings and medical confidentiality. If sexual chromosomes are crucial to eligibility in sports then perhaps participants should be required to produce evidence privately before competitions, rather than questions being raised in public post hoc. The division of humanity into male and female is fundamental in most societies. At birth we are defined by our gender and weight; other distinguishing characteristics come later. But few things are entirely black and white, and some people have ambiguous genitalia, or chromosomes and a body form which does not fit in the usual way; conditions often grouped together as ‘intersex’. As well as difficulties inseparable from some of these conditions, like infertility, these people often feel stigmatised and marginalised.2 Men and women compete separately in many sports. We take this for granted; yet in other areas of life — work, financial affairs, academic achievement — such separation would be seen as sexual discrimination or debated as affirmative action. Why do we treat sport differently? There are of course significant differences in physiological averages which mean that in some sports women would be marginalised if they had to compete against men. But if on the whole, justice and human flourishing are better served by this arrangement, how do we draw the line between the genders? What is more basic; our body form, our psychological self-image, or our chromosomes? And how can we avoid excluding those who straddle these divisions from sport? More fundamentally, what does fairness demand in relation to genetic inheritance in sport? Should we judge athletes on the basis of effort or performance? It’s not just genes carried on the XY chromosomes that affect performance; people with particular body types as a result of their genetic inheritance perform very differently in many sports. This, like androgen sensitivity, is not under their control. Why should we accept these differences but not chromosomal anomalies? We tend to treat conditions differently according to how complex their causes are and how well we understand them. If stronger muscles result from an anomaly we can describe and name, we might consider this unfair and exclude the athlete; if it comes from a fortuitous combination of many genes, not all well understood, we may not. Some would argue that distinctions between the treatment of dyslexia and poor literacy, between ADHD and bad behaviour, between psychopathy and evil, are similarly based on differences between what we now understand and what we do not yet understand, rather than on morally valid distinctions. If this is so then we need to be cautious, because medicine can be abused to support unjust practices and make unfair distinctions. Also we may find our moral judgements shifting as our understanding increases, because they are built on shifting sands — an ethical version of the ‘God of the Gaps’ problem. How to resolve these issues is not clear: I certainly don’t have the answers. But we do need to ask questions which go a lot deeper than what sort of chromosomes Caster Semenya has. Leaked reports, suggesting that Semenya has androgen insensitivity, or another metabolic anomaly which leads someone with XY chromosomes to have a female body form, led to further media debate. Peter D Toon REFERENCES 1. Hart S. Caster Semenya’s gender test results force IAAF to call in outside help. Telegraph 2009; 8 Sep: http://www.telegraph.co.uk/sport/othersports/athletics/6158424/ Caster-Semenyas-gender-test-results-force-IAAF-to-call-in- outside-help.html (accessed 5 Oct 2009). 2. National Examiner. IAAF responsible for prejudice athlete Caster Semenya facing. http://www.examiner.com/x-16496-Christian- Pop-Culture-Examiner~y2009m8d25-IAAF-responsible-for- prejudice-athlete-Caster-Semenya-faces (accessed 5 Oct 2009). DOI: 10.3399/bjgp09X472962 
work_bkywyshlfzgcldfxu2jtpwqclq	----	Tilburg University Understanding the market for justice Barendrecht, J.M. Publication date: 2009 Document Version Early version, also known as pre-print Link to publication Citation for published version (APA): Barendrecht, J. M. (2009). Understanding the market for justice. (TISCO Working Paper Series; Vol. 009/2009). Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO). http://ssrn.com/abstract=1416841 General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. apr. 2021 https://research.tilburguniversity.edu/en/publications/753479af-6d56-4cd0-8cb0-f43d27f27026 http://ssrn.com/abstract=1416841 ��� � TISCO WORKING PAPER SERIES ON CIVIL LAW AND CONFLICT RESOLUTION SYSTEMS Understanding the Market for Justice Maurits Barendrecht Tilburg University, Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO), International Victimology Institute Tilburg (Intervict), Tilburg Law and Economics Centre (Tilec); Hague Institute for the Internationalisation of Law (HiiL) j.m.barendrecht@uvt.nl TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 006/2009 June 9, 2009, Version: 1.0 & Tilburg University Legal Studies Working Paper No. 009/2009 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=1416841 ��� � Maurits Barendrecht1 Understanding the Market for Justice Abstract If justice is so dearly needed, why does it not emerge spontaneously? Socio-legal research shows how people shop for justice. They approach friends, advisers, lawyers, mediators, suppliers of legal information, local authorities, community leaders, priests, imams, arbiters, or judges in order to obtain redress in situations of conflict. From the perspective of clients, law is probably not so much a system of procedures in which they face barriers to access, but a variety of options on a market for justice services. In this paper, five types of justice services are distinguished. Whether these services are affordable for clients and sustainable to supply, depends on the costs of production and on the transaction costs of making them available. Investigating the sources of transaction costs for each of these justice services improves our understanding of the legal system. This perspective explains why ADR has hardly succeeded in attracting clients, lawyer services are unlikely to become a commodity, norms for distributive issues are often lacking, and courts have trouble to orient themselves on the needs of their customers. It also indicates which type of policies governments and civil society can consider if they wish to improve access to justice. 1 Helpful comments on an earlier version were provided by Martin Gramatikov, Machteld de Hoon, Jan Smits, Jin Ho Verdonschot, Ben Vollaard, and workshop participants at the Hague Institute for Internationalization of the Law (17 april 2008) and Amsterdam Centre for Law and Economics (18 april 2008). ��� � Table of Contents I.� SHOPPING FOR JUSTICE .................................................................................................................................3� II.� THE MARKET FOR JUSTICE ......................................................................................................................5� A.� ACCESS TO JUSTICE ..............................................................................................................................................5� B.� DEMAND: JUSTICE NEEDS ....................................................................................................................................5� C.� FORMAL AND INFORMAL SUPPLY.........................................................................................................................6� D.� ANALYZING THE MARKET FOR JUSTICE ...............................................................................................................7� III.� APPROACH.....................................................................................................................................................10� A.� FIVE DISPUTE RESOLUTION TASKS ....................................................................................................................10� B.� THE PERSPECTIVE OF TRANSACTION COSTS ......................................................................................................10� IV.� TRANSACTION COSTS ON JUSTICE MARKETS .................................................................................12� A.� SELLING SERVICES TO ENEMIES .........................................................................................................................12� 1.� Basic Technology...........................................................................................................................................12� 2.� Transaction Costs of Meeting........................................................................................................................13� 3.� Consequences: Advice, Patronage and Demand for Checks and Balances .................................................14� B.� THE MARKET FOR NEGOTIATION ASSISTANCE ..................................................................................................16� 1.� Basic Technology...........................................................................................................................................16� 2.� Conflict Management Expertise as Public Good and Experience Good ......................................................16� C.� SUPPLYING INFORMATION ABOUT FAIR SOLUTIONS ..........................................................................................17� 1.� Basic Technology...........................................................................................................................................17� 2.� Objective Criteria for Distributive Issues as a Public Good and Experience Good ....................................18� 3.� Consequences: Business Models for Selling Legal Information...................................................................19� D.� DELIVERING THE OPTION OF A NEUTRAL DECISION ..........................................................................................19� 1.� Basic Technology...........................................................................................................................................19� 2.� Buying a Neutral Intervention: A Troublesome Transaction........................................................................20� 3.� Consequences: Access to Neutrals is Unavailable or Unreliable ................................................................21� E.� MAKING ARRANGEMENTS EXPLICIT AND ENFORCEMENT .................................................................................22� 1.� Basic Technology...........................................................................................................................................22� 2.� Transaction Costs of Services that Stabilize Relationships ..........................................................................22� 3.� Consequences: Stabilization Difficult to Obtain for People with Limited Resources ..................................23� F.� COMPLEMENTARITIES ........................................................................................................................................24� 1.� Connectedness between Dispute Services .....................................................................................................24� 2.� Integrated Services ........................................................................................................................................24� V.� CONCLUSIONS ..................................................................................................................................................25� I. Shopping for Justice In Ndirande, a township near Blantyre, the second city of Malawi, men are dying of aids. Their wives know that they will not only lose their husband, but may also become victim to ‘property grabbing.’ The man’s family takes possession of the house and other valuable assets. The wife is sent away, sometimes back to the village where she was born. Quite common in African countries, this practice has some basis in customary laws. Exclusive inheritance through the male line prevents that land becomes divided in ever smaller portions, not sustainable as a farm. In Ndirande, however, women take action against this injustice. They ask advice from friends, try to convince the local leaders to intervene, look for legal aid, and in one case, a victim in Ndirande even succeeded in bringing the case before a formal court (Vossen and Knapen 2009). ��� � Ndirande’s women try what most people do if they need protection in relationships to other people: they shop for justice.2 Legal needs surveys (Genn and Beinart 1999; Johnsen 1999; Genn and Paterson 2001; Pleasence, Buck et al. 2004; Coumarelos, Wei et al. 2006; Currie 2007) and anthropological studies give an impression how they walk away from the conflict, talk, give in, and settle, but also ask help from the police, complain with local authorities, go to the press, organize themselves into groups who can put pressure on the powerful, or find their way to the myriads of priests, imams, commissions, councils, and informal courts that mediate disputes and coax parties into solutions. Once we see justice as a service delivered to people by their peers, the issue of access to justice can be analyzed in similar ways as access to other valuable goods. “Shopping for justice” does not sound too respectful, but it may be an appropriate term, because access is obtained through what economists would call transactions. People address other people and ask them for advice or to exert influence on the other party. Often the suppliers of justice services will expect something in return: a fee, recognition as a leader, or some other favor. Whether justice services will reach the client, first depends on the costs of production. The hours a friend, a lawyer or a judge invests in assisting the client, are one example of production costs. Legal norms have to be produced as well, because information has to be collected, agreement on the rules has to be reached, and norms have to be written down. In this paper, we will mainly focus on a second type of costs: transaction costs. As consumers, clients have to search for suitable justice services. Ideally, they would compare the expected costs (price) and effectiveness of interventions. This search process can be costly, because information about prices and the quality of justice services is hard to obtain. Once lawyers are hired, clients have to monitor them, so that they do what they promised. Even friends or judges will not automatically serve their clients well. Transaction costs are costs of making justice services work. Access to justice is often insufficient. In our terms, this means that no adequate justice services are available. If justice services are not affordable for clients or not sustainable to deliver for suppliers, the production costs may be too high in relation to the value added by the service, or the costs of concluding an adequate transaction may be prohibitive. In this paper, we assume that justice goods are not particularly costly to produce (although we acknowledge that there are some notable exceptions). We focus on the mechanisms by which justice services are delivered and investigate where transaction costs are located. We thus look for explanations why markets do not succeed to deliver justice to those who need it. That markets are not capable of delivering adequate justice will be unsurprising for most readers. They know justice is a matter for states. But what exactly is the source of these problems? This has hardly been investigated yet. Understanding the sources of transaction costs may help us to understand why some people have difficulties in obtaining access to justice. It may also point the way towards interventions that increase access to justice. Section II links the approach of this paper to the existing literature on access to justice and justice markets. In Section III, the approach is explained more in detail. Five types of justice services are distinguised, that each have their own characteristics. These services help disputants to (1) meet in order to seek a cooperative solution, (2) communicate and negotiate, (3) distribute gains and losses fairly, (4) decide on outcomes, and (5) stabilize their relationships. Then follows a brief introduction in transaction cost theory. Section IV investigates the sources of transaction costs associated with the 2 Rev. Alan Sharpton organized marches in shopping districts in order to protest against injustice under this name. We use shopping for justice as a description of the transactions that plaintiffs have to conclude if they want to obtain fair solutions for their conflicts. ��� � five types of services, as well as additional costs caused by the fact that these five dispute services have to work in concert. Section V concludes and takes a quick look at policy implications. II. The Market for Justice A. Access to Justice Whether people can actually obtain a fair and just solution for their conflicts, is known as the problem of access to justice. Access to justice is mostly studied from the point of view of the sociologist: descriptive and without a shared theoretical perspective. Implied in the term access to justice is a perspective of justice as a state of affairs – an organization with lawyers, courts and legislation – to which citizens have access. Many studies describe how people lack access, because they face “barriers to justice.” These studies suggest reforms that may increase access to justice. The literature distinguishes five waves of access to justice reforms: supplying legal aid, public interest litigation, alternative dispute resolution, opening up the market for legal services, and better regulation of the legal profession (Cappeletti and Garth 1978; Parker 1999). As yet, there is no overarching theory integrating these approaches, nor a clear link to the related topics of civil procedure reform (Tyler 1997; Zuckerman, Chiarloni et al. 1999; Bone 2008; Klement and Neeman 2009) and tort reform (Currie and MacLeod 2008). The practical impact of access to justice reform efforts seems to be limited (Rhode 2004). Alternative dispute resolution, for instance, is much hyped, but little used, and it hardly helps to cut the costs of litigation (Hensler 2002; Wissler 2004). Deregulation of the legal profession does not go much further than allowing lawyers to advertise their services or to work together in multidisciplinary practices. Recently, the attention has shifted to bottom up perspectives, particularly in the context of law and development. What can people do themselves to solve their legal problems? How can they be empowered to cope with disputes in their own environment? What do they need from the state? Mediation, with its methods to facilitate negotiation and problem solving between the parties, is one trigger for this. Another one is the growing consensus that top down legal reform, where laws and courts are implemented from above, is not very effective in establishing the rule of law. Most analysts of law and development therefore have started to look at bottom up processes for making the legal system more accessible (Jensen 2002; Carothers 2006). Departing from legal needs and empowering people to serve their own needs are the mantras of today (Golub 2003; Commission on Legal Empowerment of the Poor 2008). These bottom up approaches are by their nature more market-oriented, so they invite a more thorough analysis of the economy of processes for accessing the legal system (including informal justice systems). The search for lower cost and bottom-up solutions to the problem of access to justice is a venture we referred to as microjustice, This term was created because the mechanisms for delivering justice in an affordable and sustainable manner are likely to resemble the ways in which microcredit, microinsurance, and other microservices can be delivered to the poor (Barendrecht and Van Nispen 2008). Developing microjustice requires focusing on the most urgent justice needs (Barendrecht, Kamminga et al. 2008), the five essential tasks of a dispute system (Barendrecht 2008), the most effective ways to serve those needs through developing adequate justice services (usually by producing dispute resolution services locally (Barendrecht 2009)), and lowering the transaction costs of delivering these services (this paper). B. Demand: Justice Needs At the demand side, people are most active in trying to get access to justice in situations of conflict. Research suggests three types of relationships in which they are looking for dispute resolution services (Barendrecht 2008; Barendrecht, Kamminga et al. 2008). Personal security presents the most urgent category of problems. Threats may come from outside the community where a person ��� � lives: robbing, looting, maybe even supported by factions in governments. In these situations, people seek basic protection of their human rights. Such protection against violence, unlawful taking of property, and unlawful detention is needed in relationships with outsiders and with the state. The second type evolves from long term relationships with substantial specific investments, such as family, work, land use, neighbor, and business relationships. Institutional economists have identified the reasons behind this need for protection. In these relationships, parties have to cope with changes in circumstances, preferences, and abilities, which they cannot predict, so their contracts are incomplete. Adaptation to change through negotiation is a necessity, but this takes place in a situation of bilateral monopoly. The parties are dependent on each other, because they invested in the relationship, and cannot walk away from it without leaving these investments behind. Here, some type of dispute resolution is part of the governance structure needed to adapt to these changes, hence the term trilateral governance (Williamson 1987; Nooteboom 1992; Barendrecht 2008; Robson and Skaperdas 2008). Disputes in this category have private law as their basis, with doctrines such as unforeseen circumstances, mistake and impossibility to perform (Chakravarty, MacLeod et al. 2008). Examples of disputes that arise in this context are property conflicts within a community, inheritance issues, problems between landlord and tenant, divorce, neighbor conflict and termination of a long term cooperation in work or business. A third category of conflicts emerges from arms length relationships between buyers and sellers, or from obligations of the bureaucracy to its citizens. Here, the dispute resolution process typically begins as a complaint about conduct that falls short of what the plaintiff may expect. Legal dispute resolution in this area is largely a matter of investigating what the plaintiff could expect (interpretation of contracts and regulation), how the defendant contributed to these expectations by giving or withholding information (duties to inform, which can come from different legal sources), and whether the defendant delivered goods or behavior that live up to the legitimate expectations of the plaintiff. The way the defendant reacted to the initial problem and the ensuing communication is another point of attention. Fact-finding regarding quality of goods and finding proof regarding the actual behavior of the defendant may be necessary here as well. The dispute processes regarding these issues may fit in legal categories such as civil procedure, criminal procedure, or administrative procedure. Demand for justice services is not always related to an actual conflict. In order to prevent conflict, and to make relationships work, people may find it useful to make explicit what they can expect from each other in the future. They thus agree on rules of conduct and write contracts. They may also delineate property rights, for instance by registering them. Because these ‘stabilization-services’ are also needed after a conflict is resolved, we will consider them part of the services that are needed in settings of conflict (see Section IVE). C. Formal and Informal Supply Exploration of the supply side suggests that justice services do not always meet this demand. Lawyers have a reputation of being costly; courts of being slow and at times unpredictable. For most relationships and disputes between individuals, or with small businesses as the clients, the formal legal system is expensive to use in comparison to the value at stake (see the World Bank "Doing Business" reports and Zuckerman, Chiarloni et al. 1999). For the majority of people in developing economies, this is true in particular. Access to justice through police, lawyers and courts is outside their reach for protection of property, employment problems, family issues, neighborhood conflict and disputes regarding their businesses. According to the Commission on Legal Empowerment of the Poor, 4 billion people can only hope that some informal way of getting justice is around when a conflict arises (Commission on Legal Empowerment of the Poor 2008). However, justice services are not only provided by the formal system. They emerge spontaneously in family disputes, where brothers and sisters intervene, and mothers and fathers provide a back up. Rural communities and townships develop their informal justice systems (Wojkowska 2006). Even in ��� � refugee camps, where many tense people live together closely, informal dispute systems arise within weeks. A more realistic picture is thus that people seeking fair solutions look for justice wherever it is on offer. Employees contact people in the company who support them if they have a conflict with their immediate boss. If there is a formal complaint procedure, they may use it. A company mediation scheme, an external commission that hears employee complaints, or a court specializing in labor matters may also be available. One frequently used avenue is that disputants ask local leaders to intervene. In Bulgaria, for instance, around 30% of the respondents to a legal needs survey told they addressed the local authorities for conflicts with other citizens, although these may have no formal jurisdiction (Gramatikov 2008). In many countries majors of towns hear citizens with complaints about other people, and in developing economies local leaders are often the first avenue for redress (Commission on Legal Empowerment of the Poor 2008). From the perspective of plaintiffs that is understandable: these leaders are accessible at low cost, and their interventions may be quite effective. If they do not intervene in a satisfactory way, the shopping goes on. Even in the Netherlands, a country that scores high on every rule of law index, the police, social workers, trade unions, private dispute resolution commissions and consumer organizations deal with at least as big a share of disputes as lawyers and courts (Van Velthoven and Ter Voert 2004). To what extent these formal and informal dispute services fulfill the needs of their clients, is unsure, because they are hard to monitor and to assess. But there is abundant evidence that access to justice, either through the formal legal system or through these informal arrangements, is insufficient in many places and in many situations (Parker 1999; Anderson 2003; Rhode 2004; Commission on Legal Empowerment of the Poor 2008). Legal needs surveys show that even in developed countries around 45% of the people reporting a conflict with subtantial impact on their lives do not seek access to justice – “lumping it” in the jargon – or stop their attempts. Sometimes the problem goes away, or becomes less important over time, but often the expected costs and trouble of pursuing the matter are too high for them. About 45% of disputes make it into a settlement, but this is not always experienced as a fair outcome (Van Velthoven and Ter Voert 2004). Although bias in perception of fairness is one explanation for this, it is also likely that many people accept an unsatisfactory settlement because the costs of pursuing the matter would be too high. Many people addressing the formal justice system express dissatisfaction: they feel that lawyers and courts do not acknowledge what they find important, experience a loss of control, and complain about unexpected costs (Relis 2002). If the costs of production of justice would be high, this would explain why many people cannot satisfy their justice needs. However, in most disputes basic negotiation processes and third party interventions can provide reasonably fair solutions at low costs. A skilled mediator or lower court judge will be able to settle most family, employment, and neighbor disputes in a few hours. The technologies of providing justice are not prohibitively expensive (Barendrecht 2009). But there are some exceptions: inducing powerful people to cooperate can be quite costly. Inflicting punishment on perpetrators may have high costs as well (Barendrecht 2009). Another indication that justice services do not reach the clients by the virtuous operation of the market alone is of course that they are often delivered by the state. Providing legislation and court services are classical tasks of governments. D. Analyzing the Market for Justice If justice services are valuable, not inherently costly, but still difficult to deliver, and the state has an active role, this suggests that the market for justice has substantial imperfections. No comprehensive analysis of the market for justice exists as yet. But several strands of literature contribute to our understanding of the ways justice is obtained. This paper builds on these bodies of knowledge. � � � An intuitive approach would probably distinguish two basic forms of justice services. Plaintiffs either go to advisers: friends, lawyers, or others who assist them to handle the process. Or they go to persons who can influence the other party: village elders, religious authorities, and judges. Lawyers and courts fit these two categories, and indeed the way these services are delivered have been studied to some extent. The literature on the market for legal services rendered by lawyers tends to frame legal services as similar to other professional services. A transaction cost problem discussed in this context is the asymmetry of information between lawyer and client (Stephen 2006). Another issue derives from the way the customer can judge the value of legal servicec. Before the service has been provided the client is unable to judge whether what was supplied was appropriate, and even afterwards establishing the added value of the lawyer is problematic. The term credence good has been used to describe this situation. If clients cannot distinguish good legal services from mediocre or bad ones, the better value but high cost services can be driven out by the bad quality and lower cost services. This adverse selection problem, described by Akerlof as the market for lemons in relation to second hand cars, may be addressed by regulating entry to the market by setting quality standards (Akerlof 1970; Stephen 2006). Another problem is that of moral hazard, where the lawyer diagnoses the problem and advises a service that is profitable for him, but not adequate for the client (Stephen 2006). Regulation of the legal profession is usually self-regulation by the bar, so there is the possibility of regulation that is more in favor of the profession than of the consumer. The literature concludes that legal services are regulated too heavily, resulting in limited market entry and innovation, as well as costs that are higher than necessary (Stephen and Love 1999; Hadfield 2000; Baarsma, Felsö et al. 2008). Some analysts see commercial lawyers and other legal professionals as a closed shop, with a common interest to keep the law complex (Hadfield 2000; Hadfield 2008). Others are far more optimistic and believe that a trend towards commoditization of legal services and ever lower prices is inevitable (Susskind 2008). Access to courts is mainly been studied by researchers with a legal background, but the literature on the efficiency of court services is growing. The incentives on courts have been analyzed theoretically (Posner 1993; Cabrillo and Fitzpatrick 2008). Empirical studies have shown that judges mainly answer to higher courts, which they tend to depend on for their career perspectives (Schneider 2005). Another piece of helpful literature evaluates justice sector reform efforts in third world countries (López de Silanes 2002; Hammergren 2007). This line or research tends to conclude that inadequate incentives and unnecessarily complex procedures are the main causes of underperformance of courts (Botero, La Porta et al. 2003). Increased funding by itself is unlikely to lead to better performance. Incentive-oriented reforms that seek to increase accountability, competition, and choice seem to be the most effective in tackling the problem (López de Silanes 2002; Botero, La Porta et al. 2003). Evaluation and monitoring, as well as opening up the reform efforts and the dispute system itself to non-lawyers, is thought to be necessary as well (López de Silanes 2002; Hammergren 2007). Linking informal dispute systems to formal systems should take place through recognition of the procedures and results of informal systems, with targeted constraints, and if necessary improving them within the formal system (Buscaglia and Stephan 2005; Commission on Legal Empowerment of the Poor 2008). The usual analysis in terms of two types of services – lawyer-like and court-like – is incomplete, however. It ignores some important properties of justice markets that have to be integrated in the analysis. First, court services and the services of lawyers are usually rendered to two parties who interact in a conflict. The disputants negotiate in the shadow of a court intervention. An extensive literature on these settlement negotiations exists (Tullock 1980; Pinkley, Neale et al. 1994; Huang 2007; Korobkin and Doherty 2007; Daughety and Reinganum 2008). The resulting trilateral relationship between opponents and a third party complicates justice transactions with courts or other neutrals, as we will � � � see. In the relationship between the client and his lawyer, the interaction with the other party also makes life more difficult. For the client it is harder to monitor a lawyer than another professional services provider, because the amount of work the lawyer does depends on reactions of the opponent, which may be triggered by the lawyer himself. The literature shows how the parties may become trapped in an arms race, fuelled by the interests of the lawyers, and try to outspend each other in attempts to convince the court to give a decision in their favor (Tullock 1980; Daughety and Reinganum 2008). Secondly, the interaction between the parties is influenced by rules. Negotiations in disputes take place in the shadow of the law (Mnookin and Kornhauser 1978; Cooter, Marks et al. 1982). Norms and other objective criteria inform the parties about outcomes deemed to be fair, particularly for distributive issues. The supply of these norms to the clients can be seen as a transaction in itself. There is adequate academic literature about the thesis that common law systems are more likely to produce efficient norms than civil law, tending to conclude that both legal traditions will evolve towards a mixed system with courts and legislators as complementing producers of law (Djankov, La Porta et al. 2003; Gennaioli and Shleifer 2007; Ponzetto and Fernandez 2008). The broader question of how norms are produced has been studied less intensively (Posner and Rasmusen 1999), and seldom through the lens of the demand for norms by clients and supply by private parties or government agents (Hadfield 2004; Hadfield and Talley 2006; Barendrecht and Verdonschot 2008). Moreover, the delivery of information about these norms may be a problem in itself, as knowledge about useful norms may be accessible to the legal profession, but not by the clients who need the norms. Third, the existing literature on markets for legal services tends to ignore the costs of access to justice that are not related to hiring a lawyer. Economists usually assume that property rights and contract enforcement exist and are guaranteed by the state at no cost. Only a few of them have discussed the accessibility of property rights as a problem of supply and demand. Hernando de Soto famously investigated the costs and benefits of property rights registrations in Peru and other developing countries (De Soto 2000). Besides costs of lawyers and court fees, the costs of delay and the emotional costs of a dispute resolution procedure can be substantial. Another important category of costs is the time spent. Collecting information about the facts, documenting this information, travel, waiting, searching for expertise, settlement negotiations, and attending hearings by neutrals can be time consuming affairs (see Gramatikov 2008 for a review of the literature). Fourth, the usual analysis of legal services tends to consider them as one type of service (Stephen and Love 1999; Stephen 2006; Baarsma, Felsö et al. 2008; Susskind 2008). In this paper we break down services by lawyers, who often lead their clients through several steps in the dispute resolution process, into constituent parts: assistance with negotiation, informing about norms, helping to access courts, and supplying formats for relationships (contracts, property rights). As we will see, these services each have their own characteristics, with different sources of transaction costs. Finally, and most importantly, we will relax the implied assumption that a formal legal system with courts and laws is present. In a more realistic description of the context for dispute resolution, neutral dispute services can also be delivered by private parties, such as local leaders, arbiters, or mediators. Norms can be developed by legislators and courts, but also emerge as social norms, or be designed by private actors. Enforcement of judgments can take place through agents of the state, but also by providers of enforcement services such as bailiffs, or by the threat of exclusion from a community if a defendant does not comply (Dixit 2004; Greif 2006). Extending the literature on governance institutions (Dixit 2009), we will analyze the specific governance transactions people conclude if they want to be protected and the costs of these transactions. ���� � III. Approach A. Five Dispute Resolution Tasks Let us assume a plaintiff, who wants to be protected in a relationship to another person, the defendant, from which he is dependent. The plaintiff wants a change in the status quo in the direction of a fair and just outcome of the dispute – actually he probably would not mind doing slightly better than fair, but that does not change the analysis in any significant way. The defendant, who is satisfied with the situation as it is, does not immediately give in to the demands of the plaintiff. The defendant may want to change the status quo as well, and in this respect he has to be considered as a plaintiff. Plaintiffs try to communicate and negotiate with the defendant and to influence him. He asks suppliers of justice to assist him in these processes. From the literature on dispute system design (Ury, Brett et al. 1988; Costantino and Sickles Merchant 1996; Shariff 2003; Bingham 2008; Bordone 2008) and from the practice of formal (legal) and informal dispute systems, a model of five distinct disputkojl;ing tasks can be derived (see table 1). These are the necessary and sufficient elements of a dispute system (Barendrecht 2008). For each of the five elements of a dispute system, there are basic technologies for delivery. Services that support these tasks make use of these basic technologies and can be delivered to the plaintiff. Task Description Basic Technology for Justice services 1. Meet Centralized forum for information processing Make costs and benefits of participation for defendant higher than costs and benefits of fighting, appropriation, or avoiding 2. Talk Communication and negotiation Support integrative negotiation (interest based) 3. Share Distributing value fairly Supply information about fair shares (sharing rules, objective criteria) 4. Decide Decision making procedure Make option of a neutral decision available (at low cost) 5. Stabilize Transparency and compliance Supply tools to make arrangements explicit; Make costs and benefits of compliance higher than those of non- compliance Table 2 Necessary and Sufficient Elements of a Dispute System with Basic Technologies for Delivery (Barendrecht 2008). To start with, the plaintiff and the persons assisting him need to induce the defendant to cooperate. If the defendant can ignore the plaintiff, or fight his way out of the conflict, justice cannot be achieved. Next, the plaintiff and the defendant have to communicate and negotiate, looking for a solution that fits their interests in the best possible ways. Lawyers, mediators, or other helpers with negotiation skills can assist here. Besides trying to create value by finding a win-win solution, the parties usually have to bargain in order to distribute value. Legal rules and social norms can be supplied, thus helping the parties to settle these distributive issues. If they do not agree, a third party helps them to decide: a private adjudicator or a court. They also need settlement contracts, or other means to make the future arrangements explicit. Enforcement is a matter of making it attractive for the other party to live up to the outcome, and here again the plaintiff may be assisted by suppliers of justice services. These are the types of justice transactions plaintiffs need to close. We will consider transactions concluded with private parties, as well as the transactions that take place with persons or organizations that are part of the government: police, judges, or officials who register property rights and other instruments to make relationships transparent. It is not customary to see the relationship between the client and these persons as a contract, but the client certainly has a direct interest that these persons serve him well. For the client, the problem is again how he can find the right provider of the service, determine the most helpful service, and monitor the performance of these government agents. This is the perspective of transaction costs. B. The Perspective of Transaction Costs Transaction costs are the costs of undertaking a transaction. Transaction costs include search and information costs, as well as bargaining costs. Organizations involved in the transaction also make incur costs of setting up and running the organization. In addition, there are the monitoring and ���� � enforcement costs of implementing a transaction (Rao 2003). In the case of delivery of justice, transaction costs are likely to include the costs of searching for the right type of services, the costs of bargaining with lawyers, the costs of addressing courts, as well as the costs of monitoring courts, lawyers, and other suppliers of justice services. Moreover, transaction costs cover ‘the costs of running the economic system.’ These include the costs of arrangements that deal with externalities and other types of market failure (Williamson 1981; Rao 2003). The market for dispute resolution services, for instance, may have to cope with information asymmetry, because lawyers know more about the services to be delivered than their clients (Stephen and Love 1999; Baarsma, Felsö et al. 2008). If governments step in to perform certain tasks, they also generate costs, and their activities may influence the abilities of markets to perform these tasks efficiently. Moreover, government organizations, such as courts, have to be run as well, and may struggle to do so efficiently, for reasons that can be brought under the heading of government failure. The bottom line is that each way of organizing transactions, through the market or via governments, has its price (Williamson 1999). Gradually, governance structures will develop that minimize these costs (Dixit 2009). Five dimensions of transactions are often mentioned that strongly influence transaction costs (Milgrom and Roberts 1992). These are: 1. The specificity of the investments required. If a task is performed with the needs of one particular customer in mind, it may be that the investments cannot be made productive for other clients, so the supplier becomes dependent on this particular customer. Thus, a need for protection against early termination or renegotiation of contract terms arises. Legal services indeed tend to be specially made, fitting the circumstances of the individual case. 2. The frequency of similar transactions and the duration of them. Repeated interactions, or long term relationships, need less governance, because understandings can develop over time and the parties have incentives to take each others’ interests into account because they expect future gains from the relationship. Most clients of dispute services make use of them only once, though. 3. Uncertainty and complexity. Both of these elements make it more difficult to be explicit about what should be done to make the transaction happen. Interventions in disputes can be complex, legally, or in terms of conflict management techniques, and the reactions of the other party can cause a considerable amount of uncertainty. 4. Difficulty of performance measurement. Milgrom and Roberts describe the difficulties of assessing whether a divorce lawyer has done his job, as the client has little means of ascertain whether the negotiated deal is a good one, or whether another lawyer would have been able to negotiate a better deal (Milgrom and Roberts 1992). 5. Connectedness to other transactions. Software designers have to coordinate their efforts with those of the hardware producers on which the software will run, as well as with the suppliers of the operating systems. As we will see, the services of lawyers, mediators, courts and legislators are also connected in many ways. The transaction costs approach has more or less replaced the better known analysis, which uses the concept of market failure in order to establish where governments should step in. Since ideal markets do not exist, and governments may not be able to remedy market failure in a way that lowers aggregate transaction costs, the existence of market failure is not sufficient to warrant an intervention. Still, common categories of market failure can help to identify sources of transaction costs. Stiglitz, in his handbook of Economics of the Public Sector, mentions six categories of market failure (Stiglitz 2000): • Occurrence of imperfect competition from monopolies, cartels, or monopolistic competition • Public goods • Externalities (including network effects) ���� � • Incomplete markets (innovation, asymmetries of information, enforcement costs, adverse selection, complementary markets) • Information failures (asymmetric information, insufficient production of information because of its public good character) • Macro-economic distortions (unemployment, inflation, disequilibrium) Likewise, he distinguishes four reasons for government failure (Stiglitz 2000): • Limited information • Limited control over private market response • Limited control over bureaucracy (insufficient incentives) • Limitations imposed by the political process Transaction cost economics has not yet developed into a hard science. Measuring transaction costs is difficult. Empirical research generally confirms the central tenets of transaction cost economics, like the tendency towards governance structures with lower transaction costs, but it is not conducted on a large scale (David and Han 2004; Macher and Richman 2008). For a particular transaction, it is possible to establish the likely sources of transaction costs, however. The five dimensions of transactions that usually influence the level of transaction costs can be a basis for this assessment. Until now, the transaction costs perspective has not yet been systematically applied to transactions delivering justice. Husted and Folger have suggested that governance structures are in essence conflict resolution mechanisms, and that considerations regarding the fairness of outcomes, as well as interactional justice, influence the level of transaction costs (Husted and Folger 2004). This fits in the paradigm that third party governance structures are necessary in certain transactions, in particular where relation specific investments are high (Williamson 1981; Dixit 2009). Institutional economists compare governance structures and assume that they tend towards institutions with lower transaction costs, whereas property rights theorists look at the difficulties of delineating property rights in an efficient way (Kim and Mahoney 2005). Although some writers touched on the issue (Libecap 1989; Rapaczynski 1996; Kim and Mahoney 2005; Robson and Skaperdas 2008), the existing literature on transaction cost economics does hardly cover the (second order) problem of transacting with a third party who delivers governance to the two participants in the original transaction. In this paper, we look at these second order transactions that we refer to as justice transactions. IV. Transaction Costs on Justice Markets For each of the five justice services, we will now investigate the likely size and sources of transaction costs. These costs depend on the kind of transactions that are needed. So we first go back to the basic technology for delivering each of the dispute resolution services that the plaintiff needs and give examples of suppliers of these services. Then we identify the likely sources of transaction costs, and the way justice markets respond to these costs. A. Selling Services to Enemies 1. Basic Technology Coping with conflict cooperatively requires interaction between parties. The defendant has to come to the telephone, the negotiation table, or the court-room. Some form of centralized information processing is necessary (Shariff 2003). So the first thing that the plaintiff needs, is a meeting place where the defendant is present and willing to communicate about the conflict. The basic technology for letting the parties meet is simple. The costs and benefits of participation to cooperative dispute resolution for both parties have to be higher than those of alternatives ways to cope with the conflict. For the plaintiff, this task requires that he makes it more attractive for the ���� � defendant to meet him, than to ignore the conflict, or to fight him in whatever way and with whatever weapons. There are many ways to achieve this for the plaintiff, that can be offered as a service to him. For instance, a meeting place can be made attractive for the defendant by being close and safe. If the defendant predicts that the interaction that will take place will lead to creative solutions to the problems of the parties, the expected value of going to the meeting place will be higher for him. Task Best Practices for Dispute Services/Transactions Possible Providers of Services 1. Meet - Local meeting places or other channels of communication - Pre-mediation skills - Social norms to solve conflicts cooperatively - Enhance incentives that link to reputation of defendants to solve conflicts cooperatively - Option of default judgment - First line legal aid - Friends and advisers - Community leaders - Mediators - Courts Table 3 Best Practices for Facilitating the Dispute System Task of Meeting and Service Providers (adapted from Barendrecht 2009) In case both the defendant and the plaintiff want a change in the status quo, both have something to gain from the meeting, and it will be relatively easy to induce them to do so. Inducing the defendant to meet is more problematic if the defendant expects an outcome that will make him worse off. A defendant may fear that he has to pay a substantial amount of money as compensation, or even has to undergo some form of punishment. In such cases, the plaintiff will need more help from others to create a context in which the defendant will still have incentives to participate in a cooperative process. If the defendant cares for his reputation, it may help if the plaintiff can assemble a larger group of people who are important to the defendant. If the defendant has little to loose, the threat of punishment, or even forced cooperation, may be needed. Then the plaintiff needs help from the police, or another service that makes the defendant comply. 2. Transaction Costs of Meeting Interaction is needed for a fair solution of a conflict, but getting two disputants in one room is hard. Evidence of this transaction cost problem is everywhere around us. A husband and wife are not finding a way to talk about their deteriorating relationship, and eventually about their divorce. Before two companies and their lawyers meet to negotiate, many letters and telephone calls have to be exchanged. Even wars may start without any real attempt at negotiation, mediation, or arbitration (perhaps the best example being World War I, where Nicholas II the Tsar did not even suggest to meet his nephew Kaiser Wilhelm II in The Hague’s newly opened Peace Palace, although having an International Court of Justice to prevent war had been the Tsar’s idea). More generally, it is hard to agree about a way to deal with a conflict, even if both parties are likely to gain from cooperative dispute resolution. The technical term for this is an ex post dispute agreements, where the parties already in conflict agree to a specific procedure, or a particular person who will decide on their issues. Such agreements are rare (Shavell 1995; Barendrecht and De Vries 2006). Where a defendant is offered the option of mediation, rejection rates are high (Moore 2003). Mediation services are widely available all over the world, but the number of mediations actually taking place is very disappointing. In fact, very few registered mediators can make a living from it (Velikonja 2009). On a mediation summit in 2008 organized by the ABA in The Hague, one speaker estimated the size of the market for mediation in the US at $500 million, which is equal to the turnover of the 50th largest US law firm. Most mediation is court-annexed, and takes place late in the procedure, when most legal costs have already been spent (Stipanowich 2004). Arbitration institutes have similar trouble attracting sufficient clients. Once the employment conflict is there, binding arbitration is hardly ever agreed on. Difficulties of concluding ex post dispute agreements do not only occur if alternative dispute resolution is proposed. Most legal systems allow agreements over the way to conduct a legal procedure. Such ���� � agreements would be very effective tools to diminish legal costs, and to tailor the procedure to the needs of the litigants. But they hardly occur (Barendrecht and De Vries 2006). In actual litigation practice, agreements about the way to conduct court proceedings do not extend beyond very practical arrangements about logistics. What we basically see here, is a dispute about how a dispute should be dealt with. Continued unresolved conflict, or war, is usually a negative sum game and thus undesirable. Agreeing on a dispute resolution process is generally a Pareto improvement for both parties. However, the way the problem will be tackled is very likely to become an issue for bargaining itself. This second order negotiation problem seems to be difficult to solve, for reasons similar to the first order problem. The psychological barriers that impede the resolution of a conflict itself, are also likely to show up when the parties talk about the way to solve the conflict (Barendrecht and De Vries 2006). Reactive devaluation occurs when a disputant distrusts an opponent’s proposal regarding a suitable dispute resolution procedure (Ross 1995). Over-optimism may cause him to underestimate the impact of the dispute, or the value of his outside options. Loss aversion may cause a defendant to postpone participation in a cooperative procedure if he expects to be required to make concessions (Arrow 1995). At the initial stage of conflict resolution we are talking about, we have to add the effects of negative emotions. Angry, fearful or contemptuous parties are not very likely to make a calm and reasonable decision about the way to resolve a conflict in a cooperative manner (Allred 2005; Van Kleef, De Dreu et al. 2006). Another important category of market failure is probably the possibility that individuals have strategic reasons for not – yet – wanting to deal with the dispute in a cooperative way. While a plaintiff wants fast results, a defendant is better off in the status quo and does not mind a lengthier procedure. One party may fear extensive neutral fact-finding, while the other party expects to gain from the investigation. In essence, this is a bargaining problem where both parties can gain from concluding a transaction, but have to split the gains from trade. Bargaining theory and empirical research show that the risk of impasse is substantial, because the parties obtain better results if they are patient, make extreme offers, commit themselves to making no further offers, try to hide information from the other party, and make efforts to develop alternative ways to serve their interests (Muthoo 1999; Muthoo 2000; Carraro, Marchiori et al. 2006; Korobkin and Doherty 2007). As we have seen, there are also situations where cooperative dispute resolution is not in the interest of the defendant, because he is likely to be worse off. Then the plaintiff may have to rely on others to provide additional incentives on the defendant to cooperate. The costs of the transactions necessary to influence the other party can be quite high, if the defendant is a powerful person. Many people may have to team up before a big company changes an unjust policy. In order to confront a dictator, quite some people have to unite and spokesman have to be found, who take the risk of retaliation, as human rights lawyers know. From the perspective of the individual plaintiff, many transactions have to be coordinated with many people who agree to take some form of action. Having to align many connected transactions is a common source of transaction costs. 3. Consequences: Advice, Patronage and Demand for Checks and Balances The high transaction costs of ex post dispute resolution agreements have important consequences. Clients and justice providers face a difficulty that is uncommon in the economic system. Most goods and services are sold to one buyer, or to a group of persons with similar interests. A mediator, arbiter or judge, on the other hand, has two clients, who are likely not on speaking terms, and with interests that are poorly aligned. Because the two parties cannot easily choose a dispute resolution process together, it is unlikely that they will hire a neutral. Instead, they turn to services they can buy by themselves. Many people in a dispute seek unilateral advice. They go to a friend or a lawyer. For such a decision, the other party is not needed, so the ���� � transaction costs of buying this service are much lower than the costs of buying dispute services jointly with the other party. A lawyer certainly offers valuable services: coaching, advising on options and norms, help with negotiation and with addressing a neutral (Mnookin, Susskind et al. 1999; Mnookin, Peppet et al. 2000). But the presence of an agent may also create new transaction cost problems. Depending on how he is paid, he may have a perverse interest to complicate the dispute instead of helping to solve it. Moreover, if one party hires an adviser, the other tends to hire one too, thus diminishing the value of the lawyer for the first party. An arms race may result (Tullock 1980). Finally, there are now four people who need to be willing to meet and talk, so the coordination problem may become even more complicated to solve. The other common reaction of plaintiffs who want to solve a dispute but cannot find a way to meet the defendant is to address a person who can influence the defendant. Disputes create a market for neutrals that exert power over others. This demand for power is studied under various headings that have a negative connotation to them, such as patronage, clientilism and corruption. The basis is a very common phenomenon, however. People look for parents, bosses, clan leaders and government officials who can help them to get protect their interests in relationships with others (Dixit 2004; Dixit 2009). Asking the powerful for help can be seen as another transaction. The powerful person offers his interventions. The sources of power that shape these interventions are well known. By inflicting sanctions, by offering rewards and by using expert knowledge the powerful can help people to solve their disputes. If they have legitimacy, or act as an example (referent power), they can use this to influence the defendant (French and Raven 2001). For the powerful person the intervention is costly, and he is likely to ask something in return. He may want to be paid in cash, or get support for his causes. Rewards may also come in the form of being seen as a wise and just person, or from the satisfaction of being able to help people with settling their issues. Transactions involving the powerful in disputes are rather complicated in nature. The inputs from the sources of power are very context specific and so are the rewards for the powerful person. The efforts of the powerful person are difficult to monitor. Because power can be used in many ways, from benevolent to malicious, and the plaintiff has little control over the person he has asked to intervene, the outcome remains unsure. The demand for interventions by powerful people thus creates an additional demand for restraints on power. Checks and balances on power become needed. Complexity, high specificity and difficult monitoring all point in the direction of high transaction costs. So the high transaction costs of obtaining justice in the straightforward way of hiring a neutral, lead to extra demand for unilateral advice (lawyers) and to extra demand for interventions by powerful people who can influence others. These transactions in turn lead to very substantial transaction costs. Finally, some plaintiffs are unlikely to succeed in making defendants cooperate. Some defendants have much to loose from solving the disputes in a cooperative way, and some defendants are too powerful. Organizing pressure on these defendants requires extensive coordination between many persons. Even at this introductory stage, before the actual dispute resolution process begins, justice markets already face difficulties. So it is not surprising that the state has become active in the market for justice in order to stimulate cooperative dispute processes. For criminal acts governments provide prosecution services. In civil disputes, the defendant must appear in court in order to discuss the issues, otherwise he will be sanctioned with a default judgment. ���� � B. The Market for Negotiation Assistance 1. Basic Technology Once both parties reach a meeting place, the plaintiff needs to communicate and negotiate with the defendant. Through negotiations, they can try to find Pareto-optimal outcomes for the conflict. The basic technology for finding win-win solutions is one of integrative – or problemsolving – negotiations. Here, the following subprocesses are essential (Walton and McKersie 1965; Fisher, Ury et al. 1991; Lewicki, Saunders et al. 2006): First, the parties have to review and adjust relational conditions to create an environment that promotes communication and information-sharing. After reviewing and adjusting perceptions, the process should focus on interests: the needs, wishes and fears of the disputants. The disputants are advised to take a joint problem-solving approach to the dispute, be creative in developing a number of solutions, and choose a (win-win) solution that best fits the interests of both parties. Task Best Practices for Dispute Services/Transactions Possible Providers of Services 2. Talk - Negotiation assistance (integrative negotiations) - Communication, active listening, questioning techniques - Reframing and adjusting perceptions - Managing emotions and interaction - Improving relationship, recognition, apology, supply of coping skills - Standard format integrative negotiations (identify interests, issues, explore win-win solutions) - Advisers - Lawyers - Mediators (facilitative) - On-line facilities Table 4 Best Practices for Facilitating the Dispute System Task of Talking and Service Providers (adapted from Barendrecht 2009) The plaintiff can buy services that bring integrative negotiation to the table via the market. The skills and practices that support these processes are well described, and made accessible for practitioners (Moffitt, Bordone et al. 2005; Deutsch, Coleman et al. 2006; Oetzel and Ting-Toomey 2006). Facilitating problemsolving negotiations can be done by mediators (Wall, Stark et al. 2001; Moore 2003), by cooperative lawyers (Lande 2005; Lande 2008), or by online dispute resolution facilities (Katsh, Katsh et al. 2001; Braun, Brzostowski et al. 2006; Brett, Olekalns et al. 2007). If the parties learn these techniques, they can also apply them without assistance (Fisher, Ury et al. 1991; Ury 1991). 2. Conflict Management Expertise as Public Good and Experience Good Transactions in which the parties buy these services are relatively easy to close. Assuming the parties have solved the problem of meeting, and have found a way to coordinate their attempts to buy the type of services that can help to solve the dispute, buying conflict management expertise is not very different from buying engineering skills, software expertise, or management advice. The only fundamental problem suppliers of this expertise face, is that they basically sell information. Varian distinguishes three attributes of information goods that make them difficult to bring to the market (Varian 1998; Raban 2007), which also apply to information needed by those seeking access to justice (Commission on Legal Empowerment of the Poor 2008). Information is often a public good (Stiglitz 1999; Raban 2007). Once it is delivered, the buyer of the information cannot be stopped from using the information for other purposes, or even selling it to others. Because the seller of the information knows this, he has insufficient incentive to produce this information and bring it to the market. Although the value of information about integrative negotiation techniques can be high, it may thus not reach the consumers. Another problem is that people can only tell whether they want to obtain information after they have obtained it. Information is an experience good. Sellers of conflict management information thus have a hard time to convince their buyers to spend money on these goods before they actually get them (Varian 1998). Finally, information products often require a high upfront investment in production costs, whereas the marginal costs of producing and distributing extra copies is close to zero (Varian 1998) ���� � Information sellers have found various ways to cope with these problems, and these are used in the context of dispute resolution services as well. The experience good problem can be overcome by giving people previews of the information, by independent reviewing of the information, or by building reputations for delivering high value information (Varian 1998). Expertise can be sold successfully by packaging it with other services. The professional services literature distinguishes four basic forms of packaging: adding value to information for a specific client, improving client decision-making, enhancing client processes, or improving client skills (Dawson 2005). Professional services firms specializing in engineering, accounting, or medical expertise show how to do this. And legal services have followed. General dispute resolution knowledge can be customized and individualized in relation to the needs of the client. This product differentiation, or versioning (Shapiro and Varian 1998), diminishes the possibility to reuse or to resell it. A lawyer or another dispute resolution professional can also help the client to solve his individual dispute, improving the clients decision making. The client does not have to apply the information to his own problem. He gets tailor-made advice. A next possibility is to run the process for the client. Just as a management consultant can organize the process to form a corporate strategy for the client, a lawyer or a mediator can organize the negotiations for his client. The lawyer may even take the dispute resolution process out of the hands of the client completely, by bringing his case before the court. A fourth business model for selling information is to improve clients skills. This can be done by packaging large chunks of information together. A book, a course, or a website only accessible for members are examples of this model. Here the individualization is left to the clients, who should read the book, or find out for themselves how to apply the skills and best practices to their particular situation. Not every client is likely to be served in the same way by these four business models for selling information. Tailor made advice and services that run the process for the client are easily accessible, but expensive because they are usually provided on a one client to one expert basis. If the expert takes the dispute out of the hands of the client, this is likely to be a costly affair as well, and it is not certain that the client’s interests are served. Clients who cannot afford individualized services have to rely on general information packaged in books or brought to them in workshops or other forms of education. They have to do the individualization themselves, or hope that the information reaches them in other ways. So poor people, who cannot afford individualized professional services, and who may lack the skills to individualize useful general information, are less likely to be reached, a hypothesis that has been confirmed by empirical research (Buck, Pleasence et al. 2008). Commoditization, as it takes place in consumer goods markets, where economies of scale bring goods within reach of ever more consumers, has been predicted for legal services (Susskind 2008). But it is unlikely to occur in the market for dispute resolution services. Until sustainable business models are developed that can bring conflict resolution information to poor clients, dispute resolution skills and knowledge are bound to be a luxury good. C. Supplying Information about Fair Solutions 1. Basic Technology Disputes always include issues over value that has to be distributed. In case of divorce, assets must be divided and care for children allocated to each of the parents. Personal injury claims have to be settled by some amount of money. In many relationships. there is the problem of how to share the work that must be done and the revenues that come from the relationship. Settling distributive issues in conflicts is difficult, because the parties are dependent on each other. They can only settle with this one other party (a bilateral monopoly). The bargaining literature shows �� � � that they often get stuck (Muthoo 1999; Muthoo 2000; Carraro, Marchiori et al. 2006; Korobkin and Doherty 2007). The underlying dynamics are that a disputant does better in distributive issues if he has more patience, makes more extreme offers, commits himself more, has more attractive outside and inside options, and has more information. If both parties follow these strategies, negotiations are unlikely to succeed. This is known as bargaining failure. Moreover, this type of conduct is likely to fuel the negative emotions that are already present in a dispute and to increase the cognitive barriers to conflict resolution. Besides letting a neutral third party decide the issue, to which we turn in the next section, there is one basic technology for helping parties settle distributive issues in a fair way. Market prices, rules of thumb used in practice, social norms, or case law provide people with information about the way others dealt with similar problems (Fisher, Ury et al. 1991; Shell 2006). These “objective criteria” can help parties negotiating in a bilateral monopoly situation assess the fairness of outcomes, which is often difficult for them (Pillutla and Murnighan 2003; Husted and Folger 2004; Cialdini 2007). These objective criteria do not have to be binding legal norms. Information on how others actually settled distributive issues, or suggestions on how they might settle, are probably more effective than information on how they should settle (Barendrecht and Verdonschot 2008; Verdonschot 2009). Both types of information contribute to a shadow of the law, a neutral image of a just world, that makes it easier to settle differences (Mnookin and Kornhauser 1978; Cooter, Marks et al. 1982; Hacker 2008; Nisenbaum 2009; Ray 2009). Some authors have noted that objective criteria have a function in a dispute comparable to information about a market price in a standard economic transaction (Barendrecht and Verdonschot 2008). Knowing what the going rate for the good or service is on the market, helps both parties negotiate the price. Objective criteria give information about this going rate. This ‘pricing information’ is particularly helpful in the setting of disputes, where there is a bilateral monopoly, since the alternative of going to another buyer or seller for the disputed goods is not available (Yeazell 2008). Task Best Practices for Dispute Services/Transactions Possible Providers of Services 3. Share - Bargaining assistance (distributive negotiations) - Objective norms and criteria for most common issues in most common disputes - Make this information widely available in order to increase transparency - Advisers - Lawyers - Mediators (evaluative) - Legislators - Courts rendering precedents - Legal academics - Legal information providers (publishers) Table 5 Best Practices for Facilitating the Dispute System Task of Sharing Service Providers (adapted from Barendrecht 2009) 2. Objective Criteria for Distributive Issues as a Public Good and Experience Good There is likely to be a need for objective criteria and thus there should be a market for producing them. Unfortunately, objective criteria are again a type of information and we have seen that information may have characteristics that makes it difficult to sell. Producing meaningful information about the going rates of justice is costly. It requires extensive knowledge about the ways disputes of a certain type are settled or decided by neutrals. Outcomes of disputes tend to be individualized, taking many of the circumstances of the case into account. Discovering the patterns in decisions and translating them in useful rules of thumb is necessary. Once the rule is published, however, the marginal costs of letting another person use the information is close to zero, and it is very difficult to exclude people from using the information. Everyone is free to use and copy a norm for his private use. Thus, there is little commercial incentive to produce information about rules regarding suitable ways to deal with distributive issues (Posner and Rasmusen 1999; Parisi 2000). �� � � It is interesting to explore the parallel with information about prices on markets for consumer goods a little further. Price transparency is a condition for efficient markets, but it is not self evident that such information is produced, because it is costly to collect this information and display it. Stock markets, for instance, let buyers and sellers quote their prices, and thus contribute to the transparency of prices. Demonstrating that this information is valuable, stock markets try to protect pricing information through intellectual property rights and through contracts (Mulherin, Netter et al. 1991). Another reason why the ‘going rates’ of justice are not published, may be that a person who makes them transparent is likely to be criticized. He may be accused of being biased by interest groups from both sides. Repeat-players, or more generally those with more negotiating power, may also have an interest in keeping such going rates secret so that their opponents are unsure what a reasonable settlement is. Insurance companies, for example, tend not to publish the going rates for settlements in personal injury cases. This may induce some people to fight on, but the majority of plaintiffs are likely to accept a comparatively low settlement. 3. Consequences: Business Models for Selling Legal Information The scarcity of information about fair ways to settle distributive issues is a problem to which solutions have been found. The market for legal expertise developed in the same way as the one for communication and negotiation know how. Lawyers offer tailor made legal advice about the likely outcome of a dispute. They bundle this legal information with other services, such as helping parties to write a contract or to argue a case in court. People with knowledge about legal norms can also package the information in a book or a course, hoping the package will sell. Whether the market for legal information satisfies the need for objective criteria has not been researched to date. Some anecdotal evidence suggests that the market does not easily produce the type of information about the going rates of justice that disputants need. The market for legal information is a multi-billion market, but case law digests and handbooks are not accessible for lay people. Moreover, they tend not to give much guidance about the way people usually solve their most common disputes: divorce, termination of employment, conflicts between owners and users of land, water rights, or problems with suppliers of goods and services. Lawyers, judges, and repeat- players like insurance companies may know the going rates for settling such disputes, but they do not seem very eager to publish them. Some writers suggest that the legal profession has an interest in keeping the legal system complex and non-transparent, as this creates more demand for legal services (Hadfield 2000). There may be truth in this, but it is probably part of the more general truth that expertise is difficult to sell because information is a public good and an experience good. Lawyers, just like doctors, architects or IT giants have an interest to distribute their know how to one client at a time, and in a way that makes it difficult to resell the information. D. Delivering the Option of a Neutral Decision 1. Basic Technology The possibility to reach a final decision is an essential element of a dispute system. The basic technology for this is the option to address a neutral decision maker like a court. The need for a neutral decision may appear self-evident, but it is important to explore the different ways in which a plaintiff profits from this service (Lempert 1978). In Section A, we saw that the threat of a neutral intervention is an incentive for the defendant to meet and talk, particularly for those defendants who feel better off now, than they expect to be after a fair solution to the dispute. Once the communication and negotiation process takes off, the same incentives are needed to let the defendant make moves towards a fair and reasonable solution for the distributive issues. In a way, ���� � the neutral also supervises the negotiations, because both parties know that they can be brought to court to evaluate their points of view. Moreover, someone must make a decision if negotiations continue to fail, particularly if the parties do not reach agreement on the distributive issues ("bargaining failure" see Section C and Barendrecht 2008). “No deal” is a fully acceptable outcome if people are looking for partners to conclude arms length market transactions. But in a dispute, where there is a bilateral monopoly with very unattractive outside options, no deal usually equals injustice. The costs of access to neutral interventions such as courts (direct monetary costs, as well as time spent, costs of delay, and costs of stress and the like) are essential parameters of a dispute system. Table 6 lists some best practices for creating access to a neutral decision at low costs. High costs of access to courts are an often cited problem in dispute systems (Commission on Legal Empowerment of the Poor 2008). High litigation costs are not only problematic because they make the service of neutral intervention very expensive, they also dilute the other effects of access to a neutral decision maker (Barendrecht 2008). In order to avoid the negative effects of high litigation costs on the process and the outcome of settlement negotiations, the expected litigation costs should be small compared to the value at stake. An often mentioned criterion is that the sum of decision costs and error costs should be minimized (Tullock 1980; Shavell 2004; Cabrillo and Fitzpatrick 2008). Assuming that the probability of error is not very high, and the costs of error are not more than the value at stake, the litigation costs should be in the range of 10 to 15% of the value at stake, preferably less. Is this the type of neutral interventions that are available on the market for dispute resolution services? Task Best Practices for Dispute Services/Transactions Possible Providers of Services 4. Decide - Adjudication - Simple procedure (oral presentation, hearing, decision) - Limited fact-finding - Judicial/neutral case-management and information processing - Online formats for defining interests, distributive issues, possible solutions, decisions - Stimulate cooperative attitude - Procedural justice: voice, participation, trustworthiness, neutrality, interpersonal respect. - Discussion of possible objective criteria for outcome - Integration of decision making and settlement - Mild time pressure - Preliminary judgments in more difficult cases - More generally: minimize sum of decision costs and error costs - Persons with informal power - Courts - Arbitrators - Neutral fact-finders - State agencies Table 6 Best Practices for Facilitating the Dispute System Task of Deciding and Service Providers (adapted from Barendrecht 2009) 2. Buying a Neutral Intervention: A Troublesome Transaction There are many people who like to help others to solve their disputes, either as volunteers or for profit. Arbitration services are widely available. Experts who can solve distributive issues, such as valuation of property, determination of damages, or the amount of liability, can easily be found on the market. As we saw, the market for patronage provides a very natural recourse for a plaintiff who wants a defendant to make a move. Powerful people make a business of protecting others. Ideally, both parties contract with the same person who will then provide a neutral decision. But for this, the parties have to agree that this particular neutral is able to decide their dispute in a fair and just way. For the reasons discussed in Section A, this is difficult, and once the neutral is appointed, the same coordination problems subsist. During a dispute resolution procedure, the parties are unlikely to jointly agree on what exactly the neutral must do and on the costs of the services that they will buy from the neutral. Each decision on this influences the process, and the process influences the outcome, so the procedure becomes a strategic issue. The mindset of the disputants, who tend to distrust proposals from the other side, creates additional barriers. So the neutral does not receive ���� � guidance from his clients. His position is comparable to a builder of a home for a couple that disagrees about everything from the color of the tiles in the bathroom, to the number of stories the house should have, and even the budget for the project. The only thing on which they seem to agree, is that he should build a house. If we go back to the sources of transaction costs discussed in Section IIB, the setting described has many attributes that point into the direction of high transaction costs: 1. Once the parties have addressed a neutral, it is costly to switch to another adjudicator because that would mean that they would have to agree on opting out from the contract with the first neutral. Even if they would succeed in this agreement, the investments in informing the first neutral are partly wasted and they will have to inform the new neutral about their individual case (asset specificity). The parties are thus dependent on the neutral, who is unlikely to be fired. 2. The transaction between two parties and one neutral is typically a one time affair, so there is little discipline by the prospect of future interactions (low frequency). 3. Both parties expect the neutral to reign in the other party and to leave themselves room for manoeuvering, which makes the services of the neutral complex. Unexpected conduct of the other party causes much uncertainty and makes it very difficult to write a precise contract about what can be expected from the neutral (uncertainty and complexity). 4. Because both parties have different needs and expectations, it is difficult to measure and monitor performance of neutrals in dispute resolution processes, especially if there are no objective criteria against which the disputants can assess whether they obtained a fair solution. The difficulties of assessing the work of the neutral and the possibility of future interactions between one of the parties and the neutral create easy opportunities for corruption (difficult monitoring). 5. As we saw, low cost interventions by neutrals are very important as support for negotiations and to letting the parties come to the table in the first place. If there are no courts or other neutrals available, the market for other dispute resolution activities will deteriorate (connectedness with other transactions). 3. Consequences: Access to Neutrals is Unavailable or Unreliable For the plaintiff, concluding a transaction with a neutral for a procedure in which the defendant participates is thus extremely troublesome. Providers of dispute services have tried to find a solution for this by stimulating the parties to a relationship to choose a way to solve the dispute before they are in a situation of conflict. But this solution – an ex ante dispute resolution agreement – only works if the parties formalize their relationship in a contract (Shavell 1995; Eisenberg and Miller 2006; Sternlight 2007). That is unlikely to take place for many common relationships like marriage, informal employment, or informal tenure of land. For other sources of disputes – crimes by strangers, neighbour issues, or accidents resulting in personal injury – it is almost unthinkable that an agreement is reached before the conflict arises. So most plaintiffs have to rely on persons that have influence over the other party, but are not bound to any agreement with the plaintiff or the defendant about the way they will use this influence. They do not only have to think about ways the other party will be influenced, but also about strategies for keeping this person in check. The defendant faces a similar problem if the powerful person is intervening. Both parties will have to mobilize others to monitor the neutral and hope that he has sufficient interest in maintaining a reputation for neutral and helpful interventions in conflicts. This is an area in which the costs of market transactions apparently are so high, that governments have stepped in. They provide neutrals in the form of independent judges. This partly solves the problem of the plaintiff, but it remains to be seen whether this government agent has sufficient incentives to help the parties solve their disputes in a fair and low cost manner. Most commentators ���� � doubt whether the incentives on courts to provide adequate services to clients are sufficient (Messick 1999; Frynas 2001; López de Silanes 2002; Hammergren 2007; Cabrillo and Fitzpatrick 2008) . E. Making Arrangements Explicit and Enforcement 1. Basic Technology After the conflict has been resolved, the disputants need to find a new equilibrium. A property conflict, for instance, may be settled by allocating ownership to one of the parties, giving temporary rights of use to the other party, a payment, and/or a share in the proceeds if the property is sold with a profit within two years. These arrangements stabilize the relationship and make transparent what the parties can expect from each other in the future. Justice services can facilitate this stabilization process by offering ways to make arrangements explicit. Contracts, settlement agreements, and written judgments help to make explicit what parties can expect from each other in the future. Identity documents (birth certificates and other documents proving a person’s status) are useful tools for relationships between people who do not know each other in person. Property rights can be registered, so that they are transparent to everyone. These instruments are part of a broader technology of making the essentials of future relationships transparent. Relationships can be more fruitful if the parties know each others’ interests (needs, wishes and fears), exchange their expectations regarding the relationship, and have criteria for evaluating the relationship. They can also profit more from the relationship if their tasks and obligations are clear, they agree about allocation of possible gains and losses, and they have procedures to cope with differences. In this paper, the point of departure is a dispute, where two parties experience a conflict of interests that they cannot easily resolve. The outcome, then, is a set of tasks and understandings for the future. Making the essence of the relationship explicit can also happen at the moment the parties enter into the relationship, or at a later time during the transaction. By doing this, the parties may be able to prevent conflict, or can manage it more easily, because their ‘contract’ limits the possible points of contention. For stabilization to occur, the parties should also have sufficient reasons to live up to the outcomes that are agreed upon by the parties or imposed on them by the neutral. For the defendant in particular, compliance must be more attractive than non-compliance. The technology for enforcement is usually described in terms of monitoring performance and then by sanctions that are applied through reputation mechanisms (naming, shaming) or otherwise (fines, collective punishment like exclusion from future transactions). Nevertheless, the rewards from compliance in terms of future gains from relationships can be just as important. Table 7 suggests some ways to achieve compliance. Tasks Best Practices for Dispute Services/Transactions Possible Providers of Services 5. Stabilize - Standard negotiating, settlement, and decision documents (contracts/registrations) for most common disputes and issues; - Registrations, contracts, regulation (may be costly) - Informal compliance mechanisms (reputation, reciprocity, identification, authority) - Expected sanctions and rewards - Lawyers, mediators, notaries, other legal advisers - Community pressure - State agencies - Police - Bailiffs Table 7 Best Practices for Facilitating Dispute System Task of Stabilizing and Service Providers (adapted from Barendrecht 2009) 2. Transaction Costs of Services that Stabilize Relationships Creating stability can again be seen as a matter of transactions of the plaintiff and the defendant with people that help them to arrange it. Making the future relationship explicit can be done by a ���� � transaction with a registrar, lawyer, mediator, notary, or court. Again, it requires the cooperation of the two parties to hire this type of help, so this may be a first source of transaction costs. As lawyers involved in writing contracts know, the process of making relationships explicit can easily lead to renewed conflict. Disputes may flare up again during this stabilization phase, so it can be necessary to have a neutral available again. Getting access to a neutral a second time does not create new transaction costs problems, so we do not have to repeat the analysis of Section D. The second source of transaction costs should also be familiar at this point. Expert knowledge is required to make relationships transparent by registering property rights, writing contracts that settle a dispute, and formulating obligations for the future. Because of the public good character of this information, it may be that the market for assistance with writing judgments, (settlement) contracts and other ways to make expectations explicit does not reach the poor (see Sections B and C in relation to conflict management knowhow and objective criteria for settling distributive issues). The transactions necessary for creating enforcement are rather complicated. If the parties have difficulties monitoring how the other party lives up to the arrangement, a person can be hired to oversee enforcement. Sometimes the monitoring task can be performed by a group of people in the community, or by a dedicated organization such as a consumer organization. The transaction costs of organizing these groups can be quite substantial, because many people have to be convinced to participate. Taking collective action can be difficult because of free rider problems. In addition, it is usually not possible to buy all reasons for the defendant to live up to the agreement from one source. Such reasons can be provided by the plaintiff himself, who can withhold benefits from the settlement contract to the defendant, by members from the community, who can make the defendant suffer from a bad reputation, or by third parties who can apply sanctions. The literature on creating self-enforcing contracts and setting up private enforcement mechanisms is vast and gives a good impression of the transaction costs involved (MacLeod 2007; Chakravarty, MacLeod et al. 2008). Sanctions such as a fine or even exclusion from the community are costly to apply for those who have to administer it. Thus, a third party hired to perform the sanctioning task may try to renege on his obligation to apply the sanction. Trade organizations, for instance, will think twice before excluding one of their members, because of the additional conflict this may cause. A plaintiff will rely on the sanctioning system infrequently, so there are no repeated interactions between him and the ones imposing sanctions. Damage to reputation will only work if a number of people are interested hearing about the non-compliance and willing to withhold items from the defendant that are more important to him than the gains from non-compliance. Even consumer organizations are not always able to organize this. Complexity and connected transactions are thus also sources of transaction costs. 3. Consequences: Stabilization Difficult to Obtain for People with Limited Resources Justice markets have to cope with these transaction costs. Making future relationships explicit through contracts or other documentation can be standardized. But it is difficult to find a business model for these transactions, because they involve transfer of information. So legal service providers revert to the usual approaches to selling expertise (individualization and packaging) and people with limited resources have little access to these services, Providers of enforcement have to look for economies of scale in order to diminish transaction costs. They are likely to use a variety of strategies: influencing the reputation of the defendant, positive encouragement through the promise of future gains, and threats of imposing sanctions on the defendant. These services will not be easily accessible to the poor in their relations to the powerful and resource rich, because poor people will have more difficulties to find others who are both willing to support them and can exert influence over the defendant. ���� � F. Complementarities A dispute system is more than the sum of its parts. The five tasks a dispute system has to perform are linked. If one of the tasks is performed more efficiently, it often becomes easier to perform other tasks (Bendersky 2003). In this section, these linkages are analyzed as causes of extra transaction costs. 1. Connectedness between Dispute Services Whether it is worthwhile to meet in order to resolve a dispute cooperatively, depends on the expectations of both parties concerning the next four steps in a dispute resolution process. For a plaintiff, it is much more attractive to start a process if he knows that he will be able to use low cost/high quality services that help him to communicate and negotiate, and to get a fair share in the distributive issues. If the negotiations fail, the plaintiff will also need a third party to decide. Finally, both a negotiated outcome and a decision by this third party should be enforceable. Transaction cost economics identifies connectedness between different types of transactions as an important source of transaction costs (see Section IIB). Minimizing these costs is often the goal of governance structures such as alliances, networks of suppliers, and vertical integration in the supply chain (Dyer and Singh 1998). Services that help people to negotiate disputes (mediation, negotiation services by lawyers or others, education in dispute resolution skills) also have complementarities with other elements of the dispute system. Negotiated outcomes are more likely to be complied with than imposed outcomes (research about mediated settlements reports compliance rates as high as 90%), because the parties “own” the outcome. Thus better communication and negotiation services make compliance services easier to deliver. Publication of objective criteria for distributive issues is another service with complementarities. Objective criteria not only facilitate bargaining and reduce the probability of bargaining failure, but also enable clients to monitor whether their lawyers obtained good results for them in negotiations and whether neutrals make fair decisions. Buying corrupt judges, as well as less obvious ways to influence the outcome, will become more difficult and less effective. Such norms are also likely to make proceedings before a neutral adjudicator less complicated, because both the parties and the neutral can focus on the application of the criteria, which decreases litigation costs (Kaplow 1992). If social norms (objective criteria) about distributive issues are more transparent, non-compliance of outcomes based on these criteria is also more easily detectable. Reputation mechanisms and other informal sanctions are then easier to apply. Because of these complementarities, economists will predict that there less investment in the production of objective criteria than would be the case under perfect competition, the reason being that producers of objective criteria cannot profit from the gains that they cause on these adjacent markets. There are also strong links between the negotiation process and adjudication (Bendersky 2003). Without the option of a low cost neutral intervention, negotiations will take longer and be more costly, with a higher risk of impasse. Judges are dependent on the parties for defining the issues and for giving them information and can go on where the parties got stuck in the negotiations. Information exchanged in the negotiation process is similar to what is needed in litigation, which can lead to important cost savings. If the quality of the litigation process is high, delivering procedural justice to clients, enforcement becomes easier (Tyler 2007; Hollander-Blumoff and Tyler 2008). 2. Integrated Services These complementarities are well noted by the players on the market for justice. Commercial legal services providers often offer their clients more than one dispute resolution service. Integration of services into one firm is one possible answer to a problem of complementarities, because it ensures ���� � that both the connected services are delivered, and that clients obtain access to the added value of the combination. Most lawyers offer packages of services. They assist their clients in negotiations, give them legal information, and help them with accessing the neutral. When it comes to a final outcome in litigation, a lawyer is also likely to help his client with enforcing the outcome. Mediators also found out that integrated services are more profitable. Besides facilitating the negotiations between the clients with conflict management skills, many mediators also give their clients an evaluation of their legal positions (Wall, Stark et al. 2001). This evaluative mediation has effects very similar to a decision in summary proceedings by a common law court, or a decision in first instance in a civil law procedure. If one of the parties does not agree with the outcome imposed by this neutral, he can appeal at the next level of the court system. Even judges have found it profitable to go beyond adjudication. Both arbiters and courts now routinely offer their clients some help with negotiating a settlement, and have also diversified the way of adjudication. US courts deliver more settlements than decisions, and more summary judgements than verdicts after a trial (Hadfield 2004). By referring parties to court-annexed mediation, they even offer higher value services in relation to the settlement task. In some countries, adjudicators are also involved in enforcement of judgments (Kennett 2000; Henderson, Shah et al. 2004). In addition, courts have always been providers of objective criteria through their case law, albeit in a limited way. For clients, integration is not always beneficial. If lawyers give advice regarding settlement processes and ways to distribute value, this may be influenced by their personal interest to sell additional services as a litigator. There are doubts whether it is desirable that mediators, who facilitate integrative negotiations, should also advise about suitable solutions on distributive issues (evaluative mediation). The integration has not yet been complete, however. The market does not provide integrated dispute resolution services from letting parties meet, facilitating their negotiations, providing objective criteria, to deciding distributive issues and organizing compliance for them. Whether such integrated services are possible at all, remains to be seen (see Barendrecht 2009 for a description of a possible model). V. Conclusions So, what have we learned about the capabilities of markets to deliver justice? This paper analyzed how plaintiffs can be served on five markets that satisfy their demand for justice. A plaintiff may need (1) help with creating incentives for the defendant to meet and solve a conflict cooperatively, (2) assistance with integrative negotiations, (3) objective criteria for distributive issues, (4) low cost access to a neutral decision, and (5) help with stabilization of the relationship by making expectations explicit and by providing incentives on the defendant to live up to outcomes. A preliminary analysis of these five markets shows that each has its own sources of transaction costs. These transaction costs explain many characteristics of the market for justice. Table 8 summarizes the results. One conclusion from the analysis is that markets contribute more to solving disputes than we usually assume. Most disputes are managed without government intervention. The market can provide incentives on defendants to cooperate, negotiation assistance and norms that help to settle distributive issues. It can also provide neutrals, help people to make relationships explicit, and do much to organize enforcement. There is no single element of a dispute system that cannot be provided by the market. ���� � Tasks Basic technology Sources of Transaction Costs Market reactions 1. Meet Make costs and benefits of participation for defendant higher than costs and benefits of fighting, or avoiding 1. Difficulties of concluding ex post dispute resolution agreements: - Psychological barriers - Strategic barriers 2. Cooperation between many people needed to organize sufficient incentives on powerful defendants to cooperate 1. Little demand for mediation, arbitration, and other tailor made neutral dispute services 2. Unilateral advice where neutral services would be more efficient 3. Demand for patronage (help from people who can influence the defendant) 4. Demand for checks and balances 2.Talk Support integrative negotiation (interest based) Information about negotiation and conflict management is public good 1. Insufficient supply 2. Business models for delivering expertise: - individualized advice - coaching client through process - taking over process from client - packaging information 3. Problems with access for clients with limited resources 3. Share Supply information about fair shares (sharing rules, objective criteria) 1. Information about fair solutions is public good 2. Providers of fairness information face pressure/criticism from all sides 1. Insufficient supply 2. Business models for delivering expertise (see above) 3. Problems with access for clients with limited resources 4. Decide Make option of a neutral decision available (at low cost) 1. Difficulties of concluding ex post dispute resolution agreements: - Psychological barriers - Strategic barriers 2. Insufficient incentives on neutral to provide efficient processes and fair solutions because of: - dependence on neutral - low frequency of transactions - uncertainty and complexity - monitoring difficulties. 1. Access to neutrals on markets is unavailable or unreliable 2. States provide neutrals (effectiveness doubtful) 5. Stabilize Supply tools to make arrangements explicit; Make costs and benefits of compliance higher than those of non-compliance Information about contracting and making relationships transparent is public good Cooperation between many people needed to organize sufficient incentives on powerful defendants to cooperate 1. Insufficient supply 2. Business models for delivering expertise 3. Lack of enforcement, in particular against powerful defendants Supply Chain Approach Strengthen links between tasks Complementarities/connectedness between the five types of services Integrated business models for providing unilateral legal services, mediation and adjudication Table 8: Sources of Transaction Costs on Markets for Justice and Ways Markets Cope with Them It would be wrong, however, to conclude that markets can be left on their own to dispense justice. On the contrary, we encountered three major reasons why demand and supply for justice services do not meet in such a way that justice is universally accessible. First, buying justice services is difficult because two opponents are unlikely to agree on the kind of service they need. Disputants may experience psychological barriers that make it difficult to enter a cooperative procedure, and often also have strategic reasons for not agreeing on a procedure. These coordination problems persist during the dispute resolution process. When courts or other neutrals decide disputes, they thus experience insufficient incentives from their clients to supply high quality and low cost procedures. A second source of high transaction costs relates to dispute services that consist of providing expertise. Such information tends to be difficult to sell for a profit. It has a public good character, is an experience good, and the costs of production can be rather high compared. As a consequence, conflict management skills (integrative negotiation know how), objective criteria for settling ���� � distributive issues, and relationship formats (contracts) are delivered through business models that do not always reach the persons that need them most: those with limited resources. Third, justice transactions tend to have a higher value if other justice transactions are also available. Negotiation assistance and neutral decision making by courts, for instance, work better if objective criteria for settling distributive issues are available. The incentives for defendants to solve conflicts cooperatively and to live up to outcomes typically come from the joint effects of monitoring, the value of reputation, the threat of informal sanctions, internal motivation, and formal enforcement. Many people have to cooperate to make this happen. These complementarities, network-effects, or connected transactions require an integrated approach. There is much room for improvement of this analysis. Other break-downs in constituent parts may reflect the realities on justice markets in a better way. Our analysis departed from a conflict as the trigger to address justice services, and assumed that actions taken by plaintiffs seeking help in conflicts gradually create a legal system in a bottom-up manner. We only touched briefly how group interests and group processes are used to obtain access to justice. The demand for protection of interests and rights that may exist before a conflict materializes deserves further study as well. Finally, we concentrated on access to justice for plaintiffs, who want to achieve a change in the status quo, and not on the position of defendants. Taking other points of departure may disclose other types of essential services, other sources of transaction costs, and other ways to minimize them. But we were able to explain many characteristics of the market for justice. Legal services tend to be individualized, because this is the business model that can cope with the public good character of information. There is little commoditization. Thus, information about conflict management and about fair outcomes is difficult to access for defendants with limited resources. Justice also tends to be a luxury good because many people need to cooperate in order to reign in powerful defendants. Unilateral advice is much more common than jointly addressing a mediator or adjudicator, although that is generally an efficient way to solve a dispute. In this paper, we did not discuss the policy implications. These also depends on the likely transaction costs of government interventions. For the time being, our analysis suggests that governments should focus on ways to diminish the three major sources of transaction costs we discussed. They should help parties agree on an efficient procedure and coordinate their transactions with third parties; ensure that the going rates of justice and conflict management know how are available that markets fail to provide; and facilitate coordination between the many transactions that make justice happen in the real world. For instance in the life of a woman in Ndirande, who needs a place where she can safely discuss with the family of her deceased husband what should happen to the house and their other assets. She needs innovative services that bring essential information to her: guidance how to conduct these discussions and criteria for settling the issues in a fair manner. These services would not be free, but hopefullly they would be affordable for her. She needs some assistance to form a network of relationships that ensures cooperation from the family of her man. She needs tools to ensure the shadow of a neutral decision by someone she can trust. Justice will emerge spontaneously because people demand it. But some thoughtful policies that decrease the costs of shopping for justice may help. �� � � Literature Akerlof, G. A. (1970). "The market for" lemons": quality uncertainty and the market mechanism." The quarterly journal of economics: 488-500. Allred, K. G. (2005). Relationship Dynamics in Disputes: Replacing Contention with Cooperation. Handbook of Dispute Resolution. M. L. Moffitt and R. C. Bordone. New York, Jossey-Bass: 83-98. Anderson, M. R. (2003). Access to justice and legal process: making legal institutions responsive to poor people in LDCs, Institute of Development Studies at the University of Sussex. Arrow, K. J. (1995). Barriers to Conflict Resolution, WW Norton & Company. Baarsma, B., F. A. Felsö, et al. (2008). Regulation of the legal profession and access to law, Report commissioned by the International Association of Legal Expenses Insurance (RIAD), SEO Economic Research. Barendrecht, M. (2008). In Search of Microjustice: Five Basic Elements of a Dispute System. SSRN. Barendrecht, M. (2009). "Best Practices for an Affordable and Sustainable Dispute System: A Toolbox for Microjustice." SSRN. Barendrecht, M. and B. R. De Vries (2006). "Fitting the Forum to the Fuss with Sticky Defaults: Failure on the Market for Dispute Resolution Services? ." Cardozo Journal of Conflict Resolution 7(1). Barendrecht, M., P. Kamminga, et al. (2008). Priorities for the Justice System: Responding to the Most Urgent Legal Problems of Individuals, SSRN. Barendrecht, M. and P. Van Nispen (2008). Microjustice, SSRN. Barendrecht, M. and J. H. Verdonschot (2008). Objective Criteria: Facilitating Dispute Resolution by Information About Going Rates of Justice, SSRN. Bendersky, C. (2003). "Organizational dispute resolution systems: A complementarities model." The Academy of Management Review: 643-656. Bingham, L. B. (2008). "Designing Justice: Legal Institutions and Other Systems for Managing Conflict." Ohio St. J. on Disp. Resolution. Bone, R. G. (2008). "Making Effective Rules: The Need for Procedure Theory." Oklahoma Law Review 61. Bordone, R. C. (2008). Dispute System Design: An Introduction. Botero, J. C., R. La Porta, et al. (2003). The World Bank Research Observer 18(1): 61-88. Braun, P., J. Brzostowski, et al. (2006). "e-Negotiation systems and software agents: methods, models, and applications." Intelligent Decision-Making Support Systems: Foundation, Applications, and Challenges, Springer Verlag. Brett, J. M., M. Olekalns, et al. (2007). "Sticks and Stones: Language, Face, and Online Dispute Resolution." The Academy of Management Journal (AMJ) 50(1): 85-99. Buck, A., P. Pleasence, et al. (2008). "Do Citizens Know How to Deal with Legal Issues? Some Empirical Insights." Journal of Social Policy 37(04): 661-681. Buscaglia, E. and P. B. Stephan (2005). "An empirical assessment of the impact of formal versus informal dispute resolution on poverty: A governance-based approach." International Review of Law and Economics 25(1): 89-106. Cabrillo, F. and S. Fitzpatrick (2008). The Economics of Courts and Litigation. Cheltenham, UK, Edward Elgar. Cappeletti, M. and B. Garth (1978). "Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective." Buffalo Law Review 27(181). Carothers, T., Ed. (2006). Promoting the Rule of Law Abroad: In Search of Knowledge. Washington D.C., Carnegie Endowment for International Peace. Carraro, C., C. Marchiori, et al. (2006). "Advances in Negotiation Theory: Bargaining, Coalitions and Fairness." World. Chakravarty, S., W. B. MacLeod, et al. (2008). "Contracting in the Shadow of the Law." NBER Working Paper. Cialdini, R. B. (2007). "Descriptive Social Norms As Underappreciated Sources Of Social Control." Psychometrika Vol. 72(No. 2): 6. Commission on Legal Empowerment of the Poor (2008). Making the Law Work for Everyone. I. Commission on Legal Empowerment of the Poor (2008). Making the Law Work for Everyone. II Working Group Reports. Cooter, R., S. Marks, et al. (1982). "Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior " The Journal of Legal Studies 11(2): 225-251 �� � � Costantino, C. A. and C. Sickles Merchant (1996). Designing conflict management systems. San Francisco, Jossey-Bass. Currie, J. and W. B. MacLeod (2008). "First Do No Harm? Tort Reform and Birth Outcomes*." Quarterly Journal of Economics 123(2): 795-830. Daughety, A. F. and J. F. Reinganum (2008). Settlement. Discussion Paper prepared for inclusion in the Encyclopedia of Law and Economics (2nd Ed.), Vol. 10: Procedural Law and Economics, Ed. by Chris William Sanchirico to be published by Edward Elgar. David, R. J. and S. K. Han (2004). "A systematic assessment of the empirical support for transaction cost economics." Strategic Management Journal 25(1). Dawson, R. (2005). Developing knowledge-based client relationships: leadership in professional services, Butterworth-Heinemann. De Soto, H. (2000). The Mystery of Captal; Why Capitalism Triumphs in the West and Fails Everywhere Else. New York. Deutsch, M., P. T. Coleman, et al. (2006). The Handbook of Conflict Resolution: Theory and Practice. San Francisco. Dixit, A. (2009). "Governance Institutions and Economic Activity." American Economic Review 99(1): 5-24. Dixit, A. K. (2004). Lawlessness and Economics: Alternative Modes of Governance, Princeton University Press. Djankov, S., R. La Porta, et al. (2003). "Courts." Quarterly Journal of Economics(May). Dyer, J. H. and H. Singh (1998). "The relational view: Cooperative strategy and sources of interorganizational competitive advantage." Academy of management review: 660-679. Eisenberg, T. and G. P. Miller (2006). The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly-Held Companies' Contracts, SSRN. Fisher, R., W. Ury, et al. (1991). Getting to yes: negotiating agreement without giving in. New York, N.Y., Penguin Books. French, J. R. P. and B. Raven (2001). The bases of social power. The Negotiation Sourcebook. I. G. Asherman and S. V. Asherman. Amherst, Mass., HRD Press: 61-82. Frynas, J. G. (2001). "Problems of access to courts in Nigeria: Results of a survey of legal practitioners." Social & Legal Studies 10(3): 397-419. Gennaioli, N. and A. Shleifer (2007). "The evolution of common law." Journal of Political Economy 115(1): 43-68. Golub, S. (2003). Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative, Carnegie Endowment for International Peace. Gramatikov, M. (2008). A Framework for Measuring the Costs of Paths to Justice, SSRN. Gramatikov, M. (2008). Multiple Justiciable Events in Bulgaria. Reaching Further: New Approaches to the Delivery of Legal Services. L. S. R. Centre. London: 22. Greif, A. (2006). Institutions and the path to the modern economy: Lessons from medieval trade, Cambridge University Press. Hacker, D. (2008). "A legal field in action: the case of divorce arrangements in Israel." International Journal of Law in Context 4(01): 1-33. Hadfield, G. (2008). "Legal Barriers to Innovation." Regulation 31(3): 14-21. Hadfield, G. and E. Talley (2006). "On Public versus Private Provision of Corporate Law." JOURNAL OF LAW ECONOMICS AND ORGANIZATION 22(2): 414. Hadfield, G. K. (2000). "The Price of Law: How the Market for Lawyers Distorts the Justice System." Michigan Law Review 98(4): 953-1006. Hadfield, G. K. (2004). "Delivering Legality on the Internet: Developing Principles for the Private Provision of Commercial Law." Am Law Econ Rev 6(1): 154-184. Hadfield, G. K. (2004). "Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases." Journal of Empirical Legal Studies 1(3): 705-734. Hammergren, L. A. (2007). Envisioning Reform: Improving Judicial Performance in Latin America, Pennsylvania State University Press. Henderson, K., A. Shah, et al. (2004). "Regional Best Practices: Enforcement of Judgments: Lessons from Latin America." IFES, Rule of Law Paper Series, WashingtonDC. Hensler, D. R. (2002). "Suppose It's Not True: Challenging Mediation Ideology." Journal of Dispute Resolution. ���� � Hollander-Blumoff, R. and T. R. Tyler (2008). "Procedural Justice in Negotiation: Procedural Fairness, Outcome Acceptance, and Integrative Potential." Law & Social Inquiry 33(2): 473-500. Huang, K.-C. (2007). Does Dicovery Promote Settlement? - An Empirical Answer. 2007 Conference on Empirical Legal Studies. Husted, B. W. and R. Folger (2004). "Fairness and Transaction Costs: The Contribution of Organizational Justice Theory to an Integrative Model of Economic Organization." ORGANIZATION SCIENCE 15(6): 719-729. Jensen, E. G. (2002). The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers’ Responses. Beyond Common Knowledge: Empirical Approaches to the Rule of Law. . E. G. Jensen and T. C. Heller, Stanford University Press. Kaplow, L. (1992). "Rules versus standards: an economic analysis." Duke Law Journal: 557-629. Katsh, E. E., M. E. Katsh, et al. (2001). Online Dispute Resolution: Resolving Conflicts in Cyberspace. New York, John Wiley & Sons, Inc. . Kennett, W. A. (2000). Enforcement of judgments in Europe, Oxford University Press. Kim, J. and J. T. Mahoney (2005). "Property rights theory, transaction costs theory, and agency theory: an organizational economics approach to strategic management." Managerial and Decision Economics 26(4): 223-42. Klement, A. and Z. Neeman (2009). Civil Justice Reform: A Mechanism Design Framework, SSRN. Korobkin, R. B. and J. W. Doherty (2007). Who Wins in Settlement Negotiations?, SSRN. Lande, J. (2005). "The Promise and Perils of Collaborative Law." Dispute Resolution Magazine 12. Lande, J. (2008). "Developing Better Lawyers and Lawyering Practices: Introduction to the Symposium on Innovative Models of Lawyering." Journal of Dispute Resolution(1). Lempert, R. (1978). "More tales of two courts: Exploring changes in the dispute settlement function of trial courts." Law & Society Review 13: 91. Lewicki, R. J., D. M. Saunders, et al. (2006). Negotiation Boston, McGraw Hill/Irwin. Libecap, G. D. (1989). Contracting for Property Rights, Cambridge University Press. López de Silanes, F. (2002). "The politics of legal reform." Economía: 91-136. Macher, J. T. and B. D. Richman (2008). "Transaction cost economics: An assessment of empirical research in the social sciences." Business and Politics 10(1): 1-63. MacLeod, W. B. (2007). "Reputations, Relationships, and Contract Enforcement." Journal of Economic Literature 45(3): 595-628. Messick, R. (1999). Reducing Court Delays: Five lessons from the United States. PREM notes, The World Bank. Milgrom, P. R. and J. Roberts (1992). Economics, organization and management, Prentice-Hall Englewood Cliffs, NJ. Mnookin, R. H. and L. Kornhauser (1978). "Bargaining in the Shadow of the Law: The Case of Divorce." Yale Law Journal 88: 950. Mnookin, R. H., S. R. Peppet, et al. (2000). Beyond Winning, Negotiating Deals To Create Value In Deals And Disputes. Cambridge Mass., The Belknap Press of Harvard University Press. Mnookin, R. H., L. Susskind, et al. (1999). Negotiating on Behalf of Others, Sage Publications. Moffitt, M. L., R. C. Bordone, et al. (2005). The Handbook of Dispute Resolution, Jossey-Bass. Moore, C., W. (2003). The mediation process–Practical strategies for resolving conflict, . San Francisco, Jossey-Bass. Mulherin, J. H., J. M. Netter, et al. (1991). "Prices Are Property: The Organization of Financial Exchanges from a Transaction Cost Perspective." Journal of Law and Economics: 591-644. Muthoo, A. (1999). Bargaining Theory with Applications. Cambridge U.K., Cambridge University Press. Muthoo, A. (2000). "A Non-Technical Introduction to Bargaining Theory." World Economics 1(2): 145-166. Nisenbaum, S. (2009). Negotiation and the Shadow of Law. Handbook on Building Cultures of Peace. J. De Rivera: 245-257. Oetzel, J. G. and S. Ting-Toomey (2006). The SAGE handbook of conflict communication. Thousand Oaks, SAGE. Parisi, F. (2000). 9500 Spontaneous Emergence of Law: Customary Law. Encyclopedia of Law and Economics. B. Bouckaert and G. De Geest. Cheltenham, Edward Elgar. V The Economics of Crime and Litigation. Parker, C. (1999). Just lawyers, Oxford University Press. Pillutla, M. M. and J. K. Murnighan (2003). "Fairness in Bargaining." Social Justice Research,: 22. ���� � Pinkley, R. L., M. A. Neale, et al. (1994). "The impact of alternatives to settlement in dyadic negotiation." Organizational Behavior and Human Decision Processes 57: 97-116. Ponzetto, G. A. M. and P. A. Fernandez (2008). "Case law versus statute law: an evolutionary comparison." The Journal of Legal Studies 37(2): 379-430. Posner, R. A. (1993). "What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)." Supreme Court Economic Review: 1-41. Posner, R. A. and E. B. Rasmusen (1999). "Creating and Enforcing Norms, with Special Reference to Sanctions." International Review of Law and Economics 19: 14. Raban, D. R. (2007). "User-centered evaluation of information: a research challenge." Internet Research 17(3): 306-322. Rao, P. K. (2003). The Economics of Transaction Costs; Theory, Methods, and Applications. New York, Palgrave MacMillan. Rapaczynski, A. (1996). "The Roles of the State and the Market in Establishing Property Rights." The Journal of Economic Perspectives: 87-103. Ray, B. (2009). Extending the Shadow of the Law: Using Hybrid Mechanisms to Develop Constitutional Norms in Socioeconomic Rights Cases: 2. Relis, T. (2002). "Civil Litigation from Litigants' Perspectives: What We Know and What We Don't Know About the Litigation Experience of Individual Litigants." Studies in Law, Politics and Society 25: 151-212. Rhode, D. L. (2004). Access to Justice. New York, Oxford University Press. Robson, A. and S. Skaperdas (2008). "Costly enforcement of property rights and the Coase theorem." Economic Theory 36(1): 109-128. Ross, L. (1995). Reactive Devaluation in Negotiation and Conflict Resolution. New York, W.W. Norton. . Schneider, M. R. (2005). "Judicial Career Incentives and Court Performance: An Empirical Study of the German Labour Courts of Appeal." European Journal of Law and Economics 20(2): 127-144. Shapiro, C. and H. R. Varian (1998). "Versioning: The smart way to sell information." Harvard Business Review: 107. Shariff, K. Z. (2003). "Designing Institutions to Manage Conflict: Principles for the Problem Solving Organization." Harvard Negotiation Law Review. Shavell, S. (1995). "Alternative dispute resolution: An economic analysis." The Journal of Legal Studies: 1- 28. Shavell, S. (2004). Foundations of Economic Analysis of Law Cambridge, Mass., Harvard University Press. Shell, R. (2006). Bargaining for Advantage:Negotiation Strategies for Rational People. London, Penguin Books. Stephen, F. and J. Love (1999). Regulation of law firms. Encyclopedia of Law and Economics. G. De Geest and B. Bouckaert. London, Edgar Elgar: 987-1017. Stephen, F. H. (2006). An Economic Perspective on the Regulation of Legal Service Markets. Sternlight, J. R. (2007). "In Defense of Mandatory Arbitration (If Imposed on the Company)." Nevada Law Journal 8. Stiglitz, J. (2000). Handbook of Economics of the Public Sector. Stiglitz, J. E. (1999). "Knowledge as a global public good." Global public goods 1(9): 308-326. Stipanowich, T. J. (2004). "ADR and the “Vanishing Trial”: the growth and impact of “Alternative Dispute Resolution”." Journal of Empirical Legal Studies 1(3): 843-912. Susskind, R. (2008). The End of Lawyers? Rethinking the Nature of Legal Services. Oxford, Oxford University Press. Tullock, G. (1980). Trials on Trial: The Pure Theory of Legal Procedure. New York, Columbia University Press. Tyler, T. R. (1997). Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform. Civil Procedure Reform in Comparative Context, Florence, Italy, New York University. Tyler, T. R. (2007). Psychology and the Design of Legal Institutions. Nijmegen, Wolf Legal Publishers. Ury, W. (1991). Getting past no: negotiating with difficult people. New York, Bantam Books. Ury, W. L., J. M. Brett, et al. (1988). Getting disputes resolved: Designing systems to cut the costs of conflict. San Francisco, Jossey Bass. ���� � Van Kleef, G. A., C. K. W. De Dreu, et al. (2006). "Supplication and Appeasement in Conflict and Negotiation: The Interpersonal Effects of Disappointment, Worry, Guilt, and Regret." Journal of Personality and Social Psychology 91: 124-142. Van Velthoven, B. J. and M. Ter Voert (2004). Geschilbeslechtingsdelta 2003. Den Haag, WODC. Varian, H. R. (1998). Markets for information goods. Velikonja, U. (2009). "Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice." Albany Law Review 72. Verdonschot, J. H. (2009). Delivering Objective Criteria: Sources of Law and the Relative Value of Neutral Information for Dispute Resolution, SSRN. Vossen, M. and M. Knapen (2009). Township Blues: Legal needs of individuals in Ndirande, Blantyre. Tilburg, Wereld Podium/Panga Press. Wall, J. A., Jr., J. B. Stark, et al. (2001). "Mediation: A Current Review and Theory Development." Journal Of Conflict Resolution 45(3): 370-391. Walton, R. and R. McKersie (1965). A Behavioral Theory of Labor Negotiations. Beverly Hills, Sage Publications. Williamson, O. E. (1981). "The Economics of Organization: The Transaction Cost Approach." American Journal of Sociology 87(3): 548. Williamson, O. E. (1999). "Public and private bureaucracies: a transaction cost economics perspectives." J Law Econ Organ 15(1): 306-342. Wissler, R. L. (2004). "The effectiveness of court-connected dispute resolution in civil cases." Conflict Resolution Quarterly 22(1-2): 55-88. Wojkowska, E. (2006). Doing Justice: How informal justice systems can contribute. United Nations Development Programme, Oslo Governance Centre, The Democratic Governance Fellowship Programme. Yeazell, S. (2008). Transparency for Civil Settlements: NASDAQ for Lawsuits?, SSRN. Zuckerman, A. A. S., S. Chiarloni, et al. (1999). Civil justice in crisis: comparative perspectives of civil procedure, Oxford University Press. 
work_bsii5lg75felphsnik3eirzuma	----	1 Sovereign Wealth Funds and Global Justice Chris Armstrong, University of Southampton Forthcoming in Ethics and International Affairs Abstract: Dozens of countries have established Sovereign Wealth Funds (SWFs) in the last decade or so, in the majority of cases employing those Funds to manage the large revenues gained from selling resources such as oil and gas on a tide of rapidly rising commodity prices. These Funds have raised a series of ethical questions, including just how the money contained in such Funds should eventually be spent. This paper engages with that question, and specifically seeks to connect debates on SWFs with debates on global justice. Just how good are national claims to the great wealth contained in SWFs in the first place? Using the example of Norway’s very large SWF – derived from selling North-Sea petroleum – I show that national claims are at least sometimes very weak, with the implication that the wealth in many such Funds is ripe for redistribution in the interests of global justice. I conclude by offering some guidance for how the money contained in such Funds could best be spent, with the goal of advancing global justice. Keywords: Sovereign Wealth Funds – Natural Resources – Justice – Global Justice - Redistribution Introduction Dozens of countries have established Sovereign Wealth Funds in the last decade or so, in the majority of cases employing those Funds to manage the large revenues gained from selling resources such as oil and gas on a tide of rapidly rising commodity prices. Rather than using those revenues for day-to-day government expenditure, Sovereign Wealth Funds ring-fence them for longer-term investments or to smooth expenditure over time in the light of impending pension 2 crises. In building diverse portfolios on international stock and real estate markets, states also reduce their vulnerability to fluctuating exchange rates, volatile commodity prices, or the likely exhaustion of natural resource supplies in the decades to come. The existence and activities of such Funds (hereafter SWFs) has, though, prompted a number of ethical discussions: how should SWFs be organised, in order to ensure that their governance is at least minimally legitimate? 1 Should they avoid investing in ecologically-damaging or otherwise dubious industries overseas? When foreign SWFs provide much-needed sources of investment for countries such as the US, should this raise concerns about national security and political independence? 2 Though they have received far less attention to date, there are equally important questions about what these Funds are for – about how the money in SWFs should eventually be distributed, and to whom. Some Funds, as in the well-known Alaskan example, have been used to generate a (modest) Basic Income for all citizens. A few others are intended to ease shortfalls in pension entitlements. These cases, though, are rather exceptional. 3 Most SWFs, rather than ameliorating inequalities or subsidising the consumption of the poor, for example, are intended to finance unspecified future infrastructure projects, or, in some high-profile cases, to finance prestige projects for ruling families. 4 Even insofar as ethical debates have begun to touch on how the money in the Funds should be distributed, they have tended to ask how these assets should be distributed internally, to citizens of the countries which have established those Funds. Sovereign Wealth Funds are the creation of sovereigns, after all, and we might think that the first virtue of a sovereign is to treat the citizens he or she is responsible for equally. 5 What, though, of the claims of global justice? 6 The money in the bulk of these SWFs, as already indicated, is derived from selling natural resources (usually of the petrochemical variety). But the distribution of natural resources has frequently been thought to raise issues of global justice. Isn’t the distribution of natural resource wealth across the globe simply ‘arbitrary,’ from a moral point of view? Is it just that some communities should be so hugely advantaged simply because they have plentiful supplies of valuable resources? Would the proceeds of these Funds not be better used to attack global poverty, or to reduce global inequalities? 7 The many discussions of SWFs within the field of international political economy have not yet addressed their potential to help ameliorate global injustice. Theorists of global justice, for their part, have not yet turned their attention to the significance of SWFs as vehicles of natural resource wealth – wealth which might, from the point of view of justice, be vulnerable to calls for redistribution. This paper seeks to remedy that mutual neglect. In section 1 I provide a brief overview of one of the world’s very largest SWFs, established by the Norwegian government. There 3 are two reasons for focusing on the Norwegian case. First, Norway is one of the wealthiest countries in the world, and this fact accentuates the tension between pursuing goals of national and global justice. For a poorer country to maintain a SWF – and to use its proceeds to ease domestic poverty - might be less objectionable from the point of view of global justice. But Norway is a very rich country by anyone’s standards and the projects of domestic justice which its Fund is charged to advance are less obviously compatible with the demands of global justice. Second, Norway’s SWF is frequently held up as the world’s leading example of good practice in terms of both its transparency 8 and its ethical investment strategy. 9 It has even been criticised for placing too much emphasis on procedural justice and ethical investment at the expense of long-term performance. 10 If Norway’s SWF has moral faults, it is not on those grounds, but rather on grounds of global justice. All of these ethical achievements would be less impressive, I suggest, if Norwegians were not entitled to the revenues contained in their SWF in the first place. Should the money contained in this and similar SWFs be used to advance goals of global justice? In this paper I will suggest that it should. But before that, section 2 argues that the depiction of natural resource wealth as entirely ‘arbitrary’ or undeserved is a little too quick. Several arguments can be produced which might support the conclusion that local citizens are in fact entitled to the revenues contained in their SWF. These arguments need to be engaged with individually to establish whether they have any prospects of success. If one or more of them holds good, then using the proceeds from a SWF to benefit a state’s own citizens will be less objectionable than we might suppose. I show in section 2, however, that all these arguments fail in the Norwegian case, with the implication that the money contained in the Fund should, from the point of view of justice, be seen as vulnerable to global redistributive claims. Section 3, finally, examines the extent to which our argument should generalise to other SWFs, and offers some suggestions as to how the resources contained in many SWFs could best be used to serve global justice. 1. Norway’s Sovereign Wealth Fund The Government Pension Fund (Global) is a fund which collects various proceeds from Norwegian petroleum sales. Norway has large reserves offshore on the Norwegian Continental Shelf, the bulk of it in the North Sea. It currently produces approximately two million barrels of petroleum per day, the vast majority of it in the form of crude oil. In European terms, its production of both crude oil 4 and natural gas are only matched by Russia. 11 The Norwegian government claims ownership of all petroleum resources under its Continental Shelf, and the Fund therefore accrues revenues from taxing Norwegian oil companies, from selling exploration rights, and from the part-state-owned oil and gas company Statoil. The Pension Fund was established by the Norwegian government in 1990. By law, it is governed on behalf of Norway’s Ministry of Finance by Norges Bank Investment Management, a specialised division of the Norwegian Central Bank. Despite its title the Fund holds not pension funds, but, principally, general stocks bought with petroleum revenues – all of them in foreign currencies - with a smaller proportion of its assets comprised of overseas real estate holdings. The Fund is the second-largest SWF in the world, second only to the Abu Dhabi Investment Authority, which it is expected to outstrip in coming decades. As of the last quarter of 2012, its value was 3,723,000,000,000 Norwegian Krone, or 672 billion US dollars, and its size is expected to almost double by the end of this decade. 12 Its performance has not always been the best, precisely since its Council on Ethics holds to firm principles of accountability and ethical investing. 13 Nevertheless, it now holds a little over 1 percent of the total value of global equity markets. Successive Norwegian administrations have affirmed their intention to use the money contained in the Fund to save for the future, and to smooth out vulnerability to fluctuating commodity prices and foreign exchange rates. It is, moreover, feared that spending the revenues from petroleum sales as it came in would fuel rapid inflation, and result in an unfavourable exchange rate which would then damage other native industries. Levelling the expenditure of petroleum revenues over the long term should avoid such problems. A ‘fiscal rule’ dictates that no more than 4% of the returns on the Fund should be used for government expenditure in any given year. The Fund, as suggested in the Introduction to this paper, has been unusually vigilant in avoiding investment in companies associated with human rights abuses, companies which are involved in the arms trade, and which are associated with very harmful effects on the environment. 14 It has also shown a degree of interest, as befits a Fund which derives its wealth from fossil fuel production, in encouraging environmentally-friendly business practices. 15 But the Fund has also shown an unusually explicit concern with issues of distributive justice. Its declared concern is to ensure that future generations of Norwegians are able to enjoy the same very high standard of living as the Norwegians of the present. Although the final form of its expenditure has yet to be decided – and the details are the subject of on-going political debate – there is broad consensus that the priority should be insulating Norway’s ageing population from the looming pensions crisis facing many mature welfare states: hence the otherwise puzzling ‘Government Pension Fund’ element of its formal title. 5 But from the moral point of view, do the Norwegian people have a claim to its wealth? The idea that Norwegians in thirty or fifty years’ time ought to enjoy standards of living no worse than Norwegians presently do – that current generations should not fritter away the windfall of North Sea gas and oil - sounds like an admirable one. But it would, presumably, be considerably less admirable if Norwegians are presently enjoying a standard of living to which they are not fully entitled, or if this project of intergenerational justice is to be bankrolled using resource wealth to which Norwegians have weak or non-existent claims from the point of view of justice. In the next section I address just how strong or weak Norwegians’ entitlements to the money contained in their SWF might be. 2. Assessing Norwegian Claims over the Fund’s Natural Resource Wealth The argument that the distribution of natural resources is morally arbitrary is commonplace in the literature on global justice, but it is a little too quick. It tells us, in effect, that since no-one created natural resources (which is, for many, precisely why we define them as natural resources 16 ), and since no-one did anything to bring about their haphazard allocation across the globe, then no-one has any special claims on them. Our claims on them must, to the contrary, be symmetrical. But even if it is the case that particular communities have not created natural resources, this does not establish that communities have done nothing to generate special claims over them in the real world. Imagine we know that two communities began with equal shares of coal, but one community has frivolously burned its own share up. The current distribution between the two countries then begins to looks something other than purely arbitrary. Even if communities have not created their resources, they may have conserved or protected them, or indeed laboured over them in ways that have made them more valuable. Others, to the contrary, may have squandered, neglected or degraded theirs. Consider, alternatively, that a particular resource holds a special cultural or symbolic significance for a particular community (imagine, for instance, the great significance of Ayers Rock - or Uluru - for aboriginal Australians). Are theorists of justice too quick to treat natural resources as interchangeable goods to be distributed between us all, or should we accept that some agents have claims on particular resources? I suggest, in fact, that there are three reasons why we might believe that any given agent – which could in principle mean an individual or a community – has a special claim over particular natural resources. First, it might be the case that they have done something to significantly increase its value. In some cases we can say that a resource would not be the resource it is – or at least that 6 its economic value would be lower – unless a particular agent had acted on it by excavating it, refining it, or otherwise transforming it. When this is the case, it produces what we can call a special claim from improvement. Second, someone might have formed central life-plans or projects which are dependent upon secure and continuing access to a particular resource. Think of Hindus devoted to scattering the ashes of their dead on the water of the River Ganges, for example: for them, no other water can simply be substituted as a support for that project; it is that water which has special significance to them and which they desire continued access to. Where this is the case, it produces what we can call a special claim from attachment. Third – and this argument especially applies to collectives such as states or, potentially, indigenous communities – it might be the case that without control over a particular resource or set of resources a community would no longer be able to exercise effective self-determination. And if we have reason to value collective self-determination we will have reason, in turn, to allow at least some communities to control at least some of their resources. Any or all of these three arguments could potentially give us reason to reserve rights over particular resources for specific individuals or communities. Those reasons would then need to be balanced against – and might plausibly constrain - the broader claims of global justice which focus on the symmetrical general claims which all of us have on natural resources. The question that concerns us in this section, though, is whether any of them apply to the case of Norway’s SWF, such that they might over-ride any calls for global redistribution. Improvement Some nationalist theorists – including, most prominently, David Miller - have suggested that individual nations might deserve (at least some of) their resource wealth if they have, as a community, laboured over it and in so doing increased its value. 17 One obvious way of improving resources would be to change their properties so as to make them more useful for agriculture, industry or energy production. Raw materials might be smelted, or hardened, or purified and afterwards – because of their greater usefulness - command higher prices. To count as improvements, we expect any such activities to result in increases in market value. Thus since extracting or transporting resources can also lead to increases in economic value, such activities are plausible sources of special claims too. Perhaps this provides a basis on which Norway might have a claim over the money contained within its SWF. The market value of refined petroleum products such as gasoline and kerosene is notably higher than that of crude oil, for instance. And Norwegian companies refine much of its own crude oil before selling it on global markets. Even where 7 petroleum is sold in its unrefined state, Norwegian companies may have sunk considerable money into locating, extracting and transporting it. Surely this must generate a rather strong claim on the proceeds? There has been considerable debate, within the literature on global justice, on how such claims should be limited. For instance, is it just for agents to appropriate, improve and potentially sell on just whatever resources they can get their hands on? What about others who are less quick to appropriate? Or should we observe some kind of constraint or ‘proviso’ on appropriation? One view on this issue is that we ought not appropriate so many natural resources that we leave others unable to meet their basic needs. 18 Another would be that whenever we appropriate a greater than equal share, we owe others compensation. 19 But we do not, in fact, need to settle this thorny question, because it is less than certain that an outstanding claim from improvement exists in the first place in the Norwegian case. Consider just what a claim from improvement is a claim to. Though this is again contentious, the most persuasive answer, I would suggest, is that when an agent increases the market value of a resource they generate an entitlement to that increased value. If a quantity of crude oil is worth $10 but after I extract or transport or refine it is worth $15, then it is plausible to suggest that what I have earned a claim over is the additional $5 of value. Whereas I did nothing to create the original $10 of value, the increased value is in some important sense attributable to my actions. That, in any case, is the claim made by Miller, as well as by several contemporary scholars of Locke, and I suggest that it is a plausible one. 20 In a reasonably competitive market with multiple buyers and sellers, economic theory tells us we can assume that allowing me to retain $5 will see me recouping the marginal costs of production plus normal profits. The components of refined oil prices will represent crude oil prices (in practice comprising roughly two-thirds of total refined oil prices), plus the costs, including profits, of refining and transportation. Of course in reality there may be a third component of prices. In practice markets may be uncompetitive in the sense that a few sellers artificially restrict supply, driving up commodity prices and thereby gaining what economists call ‘scarcity rents’ in the process. Perhaps crude oil costs $10, total costs are $5, but sellers hold out for a price of $25, thereby achieving ‘rents’ of $10. World oil markets have frequently exhibited such behaviour. But economists and political philosophers have tended to agree that such scarcity rents are inefficient, unearned, and ideal targets for taxation. Recall, now, that the money diverted into the Norwegian Fund has two sources. In one case, revenue streams are gained when Norway sells exploration rights over its non-improved crude oil. In this scenario it is not easy to see how any improvement-based claim exists, because the Norwegian state or the Norwegian people have simply done nothing to improve that oil. They have simply sold 8 pieces of paper allowing others to improve and sell that oil. In practice, of course, doing so may lead Norway to incur costs which it would be reasonable for it to recoup: even allowing others to locate and extract oil might require Norway to undertake health and safety precautions, to minimise or absorb some environmental risks, and so on. But even if Norway was allowed to recoup those costs it would be left with a very large profit on a deal which it is hard to justify on the basis of improvement. On the other hand, large sums of money are also raised by taxing the very large profits currently made by Norwegian oil companies. But these very large profits are, essentially, scarcity rents. They represent the money left after the costs of exploration, extraction, transportation and, if applicable, refining. As such there is no good moral claim on them either. That is precisely why Norway has seen fit to tax such large and unearned profits and in so doing to share that wealth with the Norwegian people. But the question at stake in this paper is why it is the Norwegian people who should be the recipients of such revenues, as opposed to anyone else. The argument from improvement does not provide any answer to that question, although the remaining two arguments conceivably might. Attachment Sometimes access to natural resources is crucial to projects which are in turn deeply important to people, and indeed to the way in which they understand their own identities. If I consider myself a fisherman first and foremost but am deprived of access to fish, a project which is crucial to my life is disrupted and before long I will experience a kind of dissonance in believing myself to be a fisherman but not, in fact, fishing. If we have reasons of justice to take seriously the projects which people are most deeply invested in – and a number of accounts of justice will offer us reasons for taking them seriously – we have a reason to favour continuing access to natural resources that people are attached to. 21 It has been thought that this provides a further reason for granting resource rights to communities such as nations. On David Miller’s account, nations do not only labour physically over their resources, thereby increasing their economic value. They also incorporate them into their national projects, imaginations and histories, so that some particular resources come to be crucial props for communal identification and come to have, in that sense, great symbolic value to them in particular. Where this happens, we have a reason to allow such communities to continue to control the resources in question. 22 Crucially, we ought to consider such claims where the attachment is to a particular token of a resource – not to trees in general, for instance, but to these trees. Not to water in general, but to the water in this river. What we are looking to ground, in attachment-based accounts, are rights over particular rather than generic 9 resources, and to do so we need an argument about why particular rather than generic resources are necessary for an important project to come to fruition. Attachment-based claims are perfectly coherent, and good examples of attachment are available which give us reason to endorse granting resource rights to members of some communities. Such claims may not establish that people are entitled to more resources than others, but they may provide an answer to the question of which resources they are entitled to. Some communities are deeply attached to resources (or to the integrity of the land they are contained in), and sending outsiders in to mine these resources would rob them of something they value and disrupt or destroy projects to which they are deeply committed. Egalitarians therefore need a method for accommodating those attachments (a method which I provide elsewhere). 23 Might attachment provide a reason why Norwegians should be able to retain the assets contained in the Fund? That seems highly unlikely. It might well be that Norwegians are attached to the petroleum contained off their Western coast; we can afford to remain neutral on that. But the Fund is made up not of petroleum, but from the proceeds of selling petroleum to the highest bidder. If that petroleum was so non-substitutably important to Norwegians, we have to wonder why they did so. I suggest that other attachment-based accounts will be driven to the same conclusion. Avery Kolers has recently suggested, rather robustly, that there is a strong claim to control resources – indeed to disregard any countervailing claims of global justice – wherever those resources are not being treated as mere commodities. 24 But since Norway has already decided to extract, transform and sell its petroleum such an argument cannot begin. It is treating its petroleum as a mere commodity, a source of revenue alone. It is perfectly plausible, of course, that the Norwegian people have structured their plans and expectations around control over the money in the Fund (see section 3). Perhaps the Fund will allow Norwegians to more securely pursue projects to which they are broadly committed – in particular, the pursuit of a variety of (moderate) social democracy which avoids the excesses of the Anglo-American model, and which might in turn allow Norwegians to enjoy pursuits they are deeply attached to individually. But it is not clear that money is the kind of thing one can become attached to in the sense required to generate a special claim, as opposed to a general one. In supporting these Norwegian projects just any money would do, and not only this money. Many other communities, for that matter, would be very pleased to have such funds at their disposal. We still appear to lack a reason why Norwegians should be entitled to the money in the Fund, and not anyone else. 10 Self-determination Our third argument is rather different. It suggests that regardless of whether states have either improved or become attached to specific resources, we should grant them control over natural resources if we are committed to the idea of national self-determination. As Margaret Moore suggests, it is hard to see how any community could be properly self-determining if it didn’t have the authority to make decisions about how resources can or cannot be used, exploited and so on. 25 And international law does indeed grant individual states ‘permanent sovereignty’ over the natural resources contained within their territories on something like this basis. 26 Invoking self-determination cannot, of course, be a conversation-stopper. Presumably we will want to know just why self-determination is valuable, and if we are persuaded that it is valuable we will then want more detail on just how much control over how many resources it truly demands. Self-determination cannot, presumably, mean that communities can use their resources in just any way they please and to heck with the ecological consequences. Moreover if one community controlled all of the world’s resources whilst other communities went starving, a mere appeal to the value of self-determination would not be the end of the story. Why, then, is self-determination valuable, and how much does it truly demand by way of resource control? The best available defence of territorial rights on the part of individual nation-states is probably the ‘functionalist’ argument, which states that we should value self-determination because self-determining communities are able to protect the basic rights of their citizens. 27 If there were no political communities capable of preserving order and securing minimal services, our basic rights would be seriously threatened. But to deliver those minimal services, some measure of control over the natural resources within a state’s borders appears to be in order. It is hard to see how a state could secure the basic rights of its citizens, for instance, without access to freshwater. However, what is striking about this argument is that it demands relatively little in the way of resource control. It appears to demand control over resources whenever those are necessary to secure basic rights, but to have no particular implications for natural resources which are ‘surplus’ to this. Many nation- states – including Norway – are already very effective at securing the basic rights of their citizens, and clearly possess resource wealth above and beyond what is required to protect them. The functionalist argument gives us no particular reason to leave control over such resources with local states. Indeed, if what fundamentally matters – and what drives the concern with self- determination in the first place – is that people’s basic rights are secured, it may make sense to use such surpluses to help states which currently struggle to meet the basic rights of their citizens. 28 11 That might not be the end of the story from the point of view of self-determination, however. Even if control over a surplus of resources is not necessary for self-determining states to perform their core functions, the right to self-determination might still be violated if outsiders simply walked onto Norwegian territory in order to re-appropriate resources. Imagine a United Nations Natural Resources Taskforce descending on Norwegian territory with helicopters and siphoning off some of its oil for use in other parts of the world. Would we not say that Norway’s right to self-determination would be seriously disrupted by such incursions? Shouldn’t it be the decision of the Norwegians whether, when and under what conditions to make use of its oil? Is there any way in which Norway’s hand could be forced without seriously impairing its ability to make its own decisions, and even to protect its territorial integrity? Of course, the location of the petroleum in question many miles off the Norwegian coast might do something to alleviate concerns about territorial incursions. 29 But there will be cases in other states where the oil is buried under the ground, in which the worry would re-emerge. However we should not allow this concern to lead us to exaggerate the tension between self-determination and global justice. There are, after all, many ways of sharing the benefits arising from natural resources without actually removing those resources. When theorists of climate justice debate how much greenhouse gas each country should be able to emit, for instance, one of the things they are doing is dividing up rights to make use of carbon sinks, at least some of which – like the tropical rainforests – are contained within particular nation-states. Making use of those sinks does not require incursions onto the territory of those states. On the topic of oil, we could simply say that whenever it is that a country decides to raise money from its oil – whether by selling it or selling rights to it - it should then pay a global tax. Significantly, in the Norwegian SWF case what is at issue is not whether Norway or anyone else should extract or sell on its oil. Norway is already extracting and selling its oil on global commodity markets. The question is simply whether Norway should, as a matter of justice, then share the income derived from selling those resources. Since the basic rights of Norwegians are not at stake – and neither is its territorial integrity - concern for Norway’s self-determination as a community does not give us reasonable grounds for resisting the conclusion that it should share the money flowing into its Fund. The claim that the distribution of natural resource wealth is morally arbitrary, that great unearned advantages are enjoyed by many countries, and that there is nothing much, from the point of view of justice, to be said in favour of leaving resources where they are is too quick. It has become apparent in recent years that there are sometimes cases where leaving resources put makes moral 12 sense. But the Norwegian case does not appear to be one of them. On closer analysis, it actually represents a relatively straightforward case for advocates of redistribution in the interests of global justice. The three arguments considered in this section fail, in this case at least, to support local claims. In the absence of good arguments to the contrary we therefore have every reason, from the point of view of justice, to consider redistributing the financial resources contained in the Fund both plausible and desirable. 3. Sovereign Wealth Funds and Global Justice My goal in this paper has been to connect recent discussions of Sovereign Wealth Funds with debates on global justice. There are many potential targets for principles of global justice, and conceivably justice at the global level might best be served by a rather complex web of tax-and- spend schemes; according to various commentators these might include taxes on financial transactions, or environmental harms, or even political membership. 30 But the wealth contained in SWFs, I have suggested, bears examination in the same category. Theorists of global justice therefore ought to pay attention to their potential to fund progress towards global justice. At the same time, those interested in the role of SWFs in the contemporary economy should widen their discussions of the ethical implications of such Funds, and begin to debate their potential to deliver on projects of global, and not purely national, justice. The question remains, of course, of exactly which account of global justice we ought to favour. If we were to tax the wealth contained in at least some SWFs in the interests of global justice, say, should we target the revenues at eradicating severe poverty, as Thomas Pogge would have it? Pogge’s view has to date endorsed the taxation of natural resources at the point of extraction, but the argument I have presented in this paper suggests that supporters of Pogge’s view would do well to (also) examine the potential of SWFs to assist in poverty alleviation. Strikingly, the Norwegian Fund for instance contains roughly double the (annual) amount of money which Pogge reckons necessary to eradicate severe poverty worldwide. 31 My own view is that we should set our sights even higher, and try to minimise global inequalities. Taxing wealth derived from natural resource sales – including the money contained in many SWFs – offers one means of doing so. But a fuller defence of that view would be the subject of another paper. There is also a question about how widely the lessons drawn from the Norwegian case generalise. The same conclusions, I suggest, will follow for other wealthy countries with SWFs 13 derived from selling natural resource wealth. In the case of poor countries which happen to be resource-rich, global justice might recommend that we leave revenues where they are, if doing so proved to be an effective means of tackling serious poverty. But this is a large if, since many resource-rich but otherwise poor countries have proven very ineffective at using the proceeds of natural resource sales to seriously attack domestic poverty. That is one important lesson, for example, of Leif Wenar’s recent work on the international resource trade. 32 But Wenar’s suggestion is that we cease to trade with illegitimate regimes seeking to sell natural resources from under the noses of their citizens. His account is silent on the question of how the funds already gained from this morally repugnant trade should be governed or disbursed between citizens. This is a question on which we urgently need guidance. Most likely, even if we should favour the use of these particular SWFs to tackle domestic poverty, there is a strong argument for independent, transparent and accountable governance of such SWFs, accurate public reporting of resource revenues, and mission-statements aimed much more clearly at spreading the wealth derived from natural resources. As for the many natural resource-derived Funds which are managed on behalf of wealthier countries, there is a clear argument in favour of using some form of global taxation in order to better share their wealth. My goal is not to provide an account of how, institutionally, any such taxation scheme should be organized. But I will, briefly, indicate some ways in which the revenues which could be derived from such taxation might be best spent. There is considerable resistance from those currently tasked with managing SWFs to disbursing their assets to individual citizens, because of a fear that dividends will simply be ‘blown’ on short-term consumption rather than long- term investment, and we might expect resistance, as a result, to the idea that money should be spent by way of simple transfers to the global poor. 33 At the global level, we might also fear that money remitted to poorly-governed and imperfectly democratic countries would be mis-spent, exacerbating the ‘resource curse’ to which those countries are already often subject. This concern, of course, provides no objection to using those assets in the interests of global rather than domestic justice. If it is a valid concern it counsels, in both the domestic and the global case, in favour of using the money contained in SWFs to sustain longer-term investment programs. There are, in fact, a number of global infrastructure projects that could provide appropriate targets for such money. There is no particular reason why these should be projects connected with natural resources, and money could no doubt usefully be spent on developing educational infrastructure in developing countries, enhancing health-care provision or combatting tropical diseases or HIV. But there are also a number of projects more closely connected with natural resources that would seek to enhance local capacity, resource conservation and long-term economic development. Money could 14 be spent, for instance, on developing capacity to harness rainwater and hence to reduce dependence on unsustainable forms of irrigation in agriculture. It could be spent on developing (and spreading) green technologies to reduce the dependence of emerging economies on fossil fuel use. Or it could be spent on funding the protection of terrestrial carbon sinks such as rainforests. I have argued elsewhere that there is a pressing claim of global justice that the costs (including opportunity costs) of protecting rainforests should be shared between all of us and not borne solely by those who happen to have rainforests within their territories, and who are therefore asked to sacrifice their own economic development in the (broader) interests of the security of the climate. 34 If we believe that countries with rainforests should refrain from cutting them down (and we may well be right to demand this), we should nevertheless be prepared to investigate opportunities for spreading the costs of such sacrifices more fairly. Taxing natural resource-based SWFs would provide an excellent source for the major flows of revenue that would be required to make such ‘payments for protection.’ Finally, let us return briefly to the Norwegian case which has been discussed at length. Though I have singled out Norway’s Fund as an example of the kind of SWF that theorists of global justice would do well to devote more attention to, singling this Fund out should not be taken to mean, of course, that it would be fair to target Norway’s Fund to the exclusion of others. The point is not that we should simply raid Norway’s Fund to gain money with which to tackle global injustices, however pressing those goals might be. There are two reasons for being sceptical about that idea. First, we might believe that Norwegians would only be obliged to give away their money if they knew that others would be targeted in the same way. It is an issue of considerable controversy within normative theory whether agents have a duty to ‘take up the slack’ when it comes to justice – to take upon themselves, that is, additional duties to make up for the inaction of others. But certainly some are sceptical that such duties exist. 35 Second, we might consider that Norway has developed legitimate expectations to use the money contained in its Fund, given that up to now, of course, there has been no scheme in place for taxing SWFs. 36 Allowing Norwegians to keep the money in their Fund would again be controversial, because it will be a matter of dispute how heavily we should weigh any legitimate expectations against the goals of ameliorating crushing injustices elsewhere. As Henry George once provocatively argued, it is no straightforward thing to say to the poor of the world that, since the rich have become used to excluding them from the world’s resources, they should be allowed to continue to do so. The needs of the poor presumably also have some weight, unaccustomed as they are to having them satisfied. 37 15 I do not aim to resolve these debates, though, because as I said it is not my intention to claim that we should target Norway’s Fund alone. Still, even if it is not fair to single out particular countries, we can legitimately attempt to offer moral persuasion. It might not be fair to require Norway to give its money away in the absence of similar actions from others. But we might still agree that it would be desirable if they did, and we might also agree that it is perfectly legitimate for theorists of global justice to try to persuade them to place more emphasis on global, and not solely national, justice priorities. Here it is both welcome and worth noting that the Norwegian Fund, unusually among SWFs, has already made some tentative steps in the direction of global justice, in seeking to steer some investment towards green technologies and to encourage corporate ecological responsibility. It has encountered both praise and criticism for doing so, insofar as it has reached a shifting compromise between ‘ethical investment’ and maximising returns. But we might try to encourage the organizing council of the Fund to be more bold in funding such projects even where the expected returns are far from optimal. Even if schemes for taxing SWFs are unlikely to come to fruition in the near future, making a significant contribution towards the development of green technologies and subsidising their introduction in developing countries would be one way in which the activities of Norway’s Fund – or indeed any given Fund - could be made more compatible with goals of global justice. 1 See Ashby Monk, ‘Recasting the Sovereign Wealth Fund Debate: Trust, Legitimacy and Governance,’ New Political Economy 14.4 (2009): 451-68; Edwin Truman, ‘Sovereign Wealth Funds: the Need for More Accountability and Transparency,’ Peterson Institute Policy Brief (2009). 2 Amy Keller, ‘Sovereign Wealth Funds: Trustworthy Investors or Vehicles of Strategic Ambition?’ Georgetown Journal of Law and Public Policy 7.1 (2009): 333-72. 3 Angela Cummine, ‘Overcoming Dividend Skepticism: Why the World’s Sovereign Wealth Funds Are Not Paying Basic Income Dividends,’ Basic Income Studies 6.1 (2011): 1-17. 4 Witness, for instance, the 2011 acquisition of the Paris Saint-Germain football franchise by the Qatar Investment Authority. 5 Ronald Dworkin, Sovereign Virtue: the Theory and Practice of Equality (London: Harvard University Press, 2000). 16 6 There is considerable controversy, of course, about whether we owe duties of distributive to people outside of our own communities, and of what type. This paper is primarily targeted at those who believe we do have such duties. But for an overview of the relevant positions – defended both by those convinced that we have stringent duties of global justice, and those who are sceptical about their existence – see Chris Armstrong, Global Distributive Justice: An Introduction (Cambridge: Cambridge University Press, 2012). 7 Charles Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1979); Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity, 2002); Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012). Hillel Steiner also defends a global tax on natural resources, to be paid wherever anyone appropriates an above per capita equal share. Steiner, ‘Just Taxation and International Redistribution,’ in I. Shapiro and L. Brilmayer (eds) Global Justice (New York: New York University Press, 1999), pp. 171-91. 8 Mehmet Caner and Thomas Grennes, ‘Sovereign Wealth Funds: the Norwegian Experience,’ The World Economy 33.4 (2010): 597-614. 9 Kristin Halvorsen, ‘Norway's Sovereign Fund Sets an Ethical Example,’ Financial Times, 14 th February 2008; Simon Chesterman, ‘The Turn to Ethics: Disinvestment from Multinational Corporations for Human Rights Violations - The Case of Norway's Sovereign Wealth Fund,’ American University International Law Review 23.3 (2008): 577-616. 10 Gordon Clark and Ashby Monk, ‘The Norwegian Government Pension Fund: Ethics over Efficiency,’ Rotman International Journal of Pension Management 3.1 (2010): 14-19. 11 http://www.eia.gov/countries/cab.cfm?fips=NO (US Energy Information Administration, accessed 14 th February 2013). 12 According to the Norges Bank’s own calculations: see http://www.nbim.no/en/About- us/Government-Pension-Fund-Global/ 13 See the Council on Ethics website: http://www.regjeringen.no/en/sub/styrer-rad- utvalg/ethics_council.html?id=434879. 14 Chesterman, ‘The Turn to Ethics.’ 15 Danyel Reiche, Sovereign Wealth Funds as a New Instrument of Climate Protection Policy? Wuppertal Institute for Climate, Environment and Energy Working Paper 173e (2008). As Reiche notes, the Fund has not only dis-invested in companies with poor environmental records, but sought to exert pressure on companies campaigning against environmental protection legislation in countries like the US. Its leverage in this regard is attenuated by its policy of not holding more than 10% of the equity of any company. 16 Risse, On Global Justice. http://www.eia.gov/countries/cab.cfm?fips=NO http://www.nbim.no/en/About-us/Government-Pension-Fund-Global/ http://www.nbim.no/en/About-us/Government-Pension-Fund-Global/ http://www.regjeringen.no/en/sub/styrer-rad-utvalg/ethics_council.html?id=434879 http://www.regjeringen.no/en/sub/styrer-rad-utvalg/ethics_council.html?id=434879 17 17 David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), at 217-8. Miller’s argument here applies explicitly to rights over land, but he extends the argument to cover natural resources in his paper ‘Territorial Rights: Concept and Justification,’ Political Studies 60.2 (2011): 252-68. 18 Risse, On Global Justice. 19 Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994). 20 Miller, National Responsibility, p. 218. For a Lockean analysis, see e.g. Gopal Sreenivasan, The Limits of Lockean Rights in Property (Oxford: Oxford University Press, 1995). 21 Chris Armstrong, ‘Justice and Attachment to Natural Resources,’ Journal of Political Philosophy (2013, EarlyView). 22 Miller, National Responsibility, at pp. 218-9. 23 Armstrong, ‘Justice and Attachment.’ 24 Avery Kolers, ‘Justice, Territory and Natural Resources,’ Political Studies 60.2 (2012): 269-86. I critically examine Kolers’s account in ‘Resources, Rights and Global Justice: A Response to Kolers,’ Political Studies (2013, EarlyView). 25 Margaret Moore, ‘Natural Resources, Territorial Right and Global Distributive Justice,’ Political Theory 40.1 92012): 84-107, at 88. 26 Within the International Covenant on Civil and Political Rights, for instance, the clause on ‘permanent sovereignty’ over natural resources is contained within Article 1, which concerns self- determination. See http://www2.ohchr.org/english/law/ccpr.htm. 27 For a functionalist defence of territorial rights, see Anna Stilz, ‘Nations, States and Territory,’ Ethics 121.3 (2011): 572-601. 28 It may matter morally, of course, just why they struggle. On some accounts, if a community culpably failed to meet the basic rights of its citizens even after being given assistance from overseas, then the obligation to continue to provide such assistance might diminish. For two influential discussions of the grounds and limits of outsiders to help poor communities meet their citizens’ basic rights, see John Rawls, The Law of Peoples with ‘The Idea of Public Reason Revisited’ (Cambridge: Harvard University Press, 1999), and David Miller, National Responsibility, chapter 9. 29 See also Christopher Heath Wellman, ‘Political Legitimacy and Territorial Rights,’ unpublished ms, at p. 25. 30 For an overview of such proposals, see Chris Armstrong, ‘Proposals for Distributive Institutions,’ in D. Moellendorf and H. Widdows (eds) Acumen Handbook of Global Ethics (forthcoming 2014). 31 Pogge, World Poverty and Human Rights. 32 Leif Wenar, ‘Clean Trade in Natural Resources,’ Ethics & International Affairs 25.1 (2011): 27-39. http://www2.ohchr.org/english/law/ccpr.htm 18 33 Cummine, ‘Overcoming Dividend Skepticism,’ at 4-8. 34 Chris Armstrong, ‘Sharing the Costs of Rainforest Protection,’ unpublished manuscript. 35 For a sceptical view about duties to take up the slack, see David Miller, ‘Taking Up the Slack? Responsibility and Justice in Situations of Partial Compliance,’ in C. Knight and Z. Stemplowska (eds) Responsibility and Distributive Justice (Oxford: Oxford University Press, 2011), pp. 230-45. For a view that there can be such duties, see Zofia Stemplowska, ‘Doing More Than One’s Fair Share,’ unpublished manuscript. 36 A claim based on legitimate expectations might resemble an argument from attachment, but it would be different in form because - as I suggested in section 2 - attachment-based claims are claims to particular tokens or a resource, and not to fungible or substitutable goods like money. 37 Henry George, Progress and Poverty (London: The Henry George Foundation, 1932 [1881], at p. 259. 
work_buvuyxz5y5fbtd6y3frqvpqpme	----	Action heritage: research, communities, social justice Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rjhs20 Download by: [University of Sheffield] Date: 21 June 2017, At: 02:00 International Journal of Heritage Studies ISSN: 1352-7258 (Print) 1470-3610 (Online) Journal homepage: http://www.tandfonline.com/loi/rjhs20 Action heritage: research, communities, social justice Robert Johnston & Kimberley Marwood To cite this article: Robert Johnston & Kimberley Marwood (2017): Action heritage: research, communities, social justice, International Journal of Heritage Studies, DOI: 10.1080/13527258.2017.1339111 To link to this article: http://dx.doi.org/10.1080/13527258.2017.1339111 © 2017 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group Published online: 12 Jun 2017. Submit your article to this journal Article views: 68 View related articles View Crossmark data http://www.tandfonline.com/action/journalInformation?journalCode=rjhs20 http://www.tandfonline.com/loi/rjhs20 http://www.tandfonline.com/action/showCitFormats?doi=10.1080/13527258.2017.1339111 http://dx.doi.org/10.1080/13527258.2017.1339111 http://www.tandfonline.com/action/authorSubmission?journalCode=rjhs20&show=instructions http://www.tandfonline.com/action/authorSubmission?journalCode=rjhs20&show=instructions http://www.tandfonline.com/doi/mlt/10.1080/13527258.2017.1339111 http://www.tandfonline.com/doi/mlt/10.1080/13527258.2017.1339111 http://crossmark.crossref.org/dialog/?doi=10.1080/13527258.2017.1339111&domain=pdf&date_stamp=2017-06-12 http://crossmark.crossref.org/dialog/?doi=10.1080/13527258.2017.1339111&domain=pdf&date_stamp=2017-06-12 InternatIonal Journal of HerItage StudIeS, 2017 https://doi.org/10.1080/13527258.2017.1339111 Action heritage: research, communities, social justice Robert Johnstona and Kimberley Marwoodb adepartment of archaeology, university of Sheffield, Sheffield, uK; bacademic and learning Services, university of Sheffield, Sheffield, uK ABSTRACT Societies are unequal and unjust to varying degrees and heritage practitioners unavoidably work with, perpetuate and have the potential to change these inequalities. This article proposes a new framework for undertaking heritage research that can be applied widely and purposefully to achieve social justice, and which we refer to as action heritage. Our primary sources are semi-structured conversations we held with some of the participants in three heritage projects in South Yorkshire, UK: members of a hostel for homeless young people, a primary school, and a local history group. We examine ‘disruptions’ in the projects to understand the repositioning of the participants as researchers. The disruptions include introducing a scrapbook for personal stories in the homeless youth project and giving the school children opportunities to excavate alongside professional archaeologists. These disruptions reveal material and social inequalities through perceptible changes in how the projects were oriented and how the participants thought about the research. We draw on this empirical research and theorisations of social justice to develop a new framework for undertaking co-produced research. Action heritage is ‘undisciplinary’ research that privileges process over outcomes, and which achieves parity of participation between academic and community-based researchers through sustained recognition and redistribution. Introduction At the beginning of a heritage project in which one of us (KM) participated, a class of primary-age school children (10 and 11 years) were asked the question ‘Are you researchers?’ All said ‘no’. After a week spent finding out about the history of the place where they lived and the people who had lived there, the same class were again asked the question: ‘Are you researchers?’ Without hesitation, they enthusiastically replied ‘yes’. Our article is a consideration of this transformation and what it means to participate in heritage research and be recognised as a researcher. We will propose a new framework for undertaking heritage research, which we term action heritage. We develop an argument for action heritage using the example that opened this article, a school in Rotherham, UK, and two further community heritage projects in nearby Sheffield. All three were part of a wider project funded by the UK’s Arts and Humanities Research Council (AHRC) called Research for Community Heritage (RCH) (Vergunst et al. 2017). RCH was supported through the AHRC’s Connected Communities programme, which explores new © 2017 the author(s). Published by Informa uK limited, trading as taylor & francis group. this is an open access article distributed under the terms of the Creative Commons attribution license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. KEYWORDS Heritage; community; participatory research; inequality; recognition ARTICLE HISTORY received 20 March 2017 accepted 28 May 2017 CONTACT robert Johnston r.johnston@sheffield.ac.uk OPEN ACCESS http://creativecommons.org/licenses/by/4.0/ mailto: r.johnston@sheffield.ac.uk http://www.tandfonline.com http://crossmark.crossref.org/dialog/?doi=10.1080/13527258.2017.1339111&domain=pdf 2 R. JOHNSTON AND K. MARWOOD humanities-based approaches to deepening our understanding of communities (Facer and Enright 2016). For RCH, Connected Communities joined with the UK’s Heritage Lottery Fund (HLF) and encouraged community organisations to work with academics and develop year-long heritage projects. RCH at the University of Sheffield involved academic researchers from a wide range of disciplines (including archaeology, education, history, linguistics, literature and music) working closely with 14 community organisations. Through RCH, we aimed to work with organisations that had not previously engaged in heritage research, whether due to lack of capacity or a sense that it was ‘not for them’. By taking this approach, we were shifting the focus for collaborative research away from established heritage groups that were already confident and effective in gaining HLF funding and working alongside professional heritage organisations. These established organisations include local history and archaeology societies, and ‘friends of ’ groups that look after cherished places such as parks and cemeteries. By shifting our attention towards groups that had not previously engaged with heritage research, we found ourselves working with communities that were underrepresented in our university and in the community her- itage discourse in our region: for example, Muslim and Hindu women’s organisations, a mountain rescue team, a refugee support charity and a homeless hostel for young people. Alongside partnering with non-traditional heritage groups, we also sought inclusive ways of col- laborating during the research. We adopted a co-production research model that allowed multiple voices to be heard and respected as the research progressed, and that recognised and benefited from expertise across all the constituencies who participated in the research. Co-production has both a specific meaning for certain fields within the social sciences (e.g. the delivery of public services: Ostrom 1996) and is employed as a catch-all term for a wide spectrum of participatory and collabo- rative research models (Facer and Enright 2016, 82–89). Because of their wide variety of objectives (although all within the field of heritage), our projects followed the latter course and worked within a broad formulation of co-production rather than its more specific definition. Applying this method, we partnered with community groups from the inception of the projects, we addressed the barriers that we perceived were impeding participation from community organisations, and we created a wide variety of outputs for diverse audiences (such as videos, interpretation panels, booklets and music) rather than prioritising academic articles or conference presentations. At first inexperienced and naive, we gradually became more skilled though rarely comfortable in our attempts at co-production. An insight that emerged for us was that researching heritage shaped how we – both university and community participants – understood ourselves and our agency within the social relations of the project and with respect to wider society. The practices and processes of researching became a means of enfranchising participants, and of revealing and contesting inequal- ities within and beyond the projects. Through RCH, we personally began understanding research in new ways and subsequently sought to do research differently: ‘critical understanding leads to critical action’ (Freire 2002, 44). We use this article to explore the act of co-researching with three distinct communities and their involvement with RCH. We begin by tracing the links between heritage, social action and social justice. We then explore these links in conversation with our co-researchers from three projects. We conclude with a new framework for undertaking heritage research, called action heritage. Action heritage pri- oritises processes rather than outcomes, and aims to increase social justice by widening participation in research and challenging the inequalities in how we do research. Heritage as action, as socially active research As a discipline and practice heritage has changed fundamentally from its more traditional associations with rather narrow nationalistic, institutional, and bucolic manifestations of the past (Harrison 2013). While these manifestations of heritage still exist, and in certain places still predominate, the term ‘heritage’ has been appropriated in many more settings. Heritage is now acknowledged as a resource distributed across society, with working-class heritage, community heritage, Black and South Asian INTERNATIONAL JOURNAL OF HERITAGE STUDIES 3 heritage, amongst the more fragmented geographies of contemporary heritage discourse in the UK and internationally (Graham, Ashworth, and Tunbridge 2016). There is a further shift in thinking that interests us: heritage is no longer conceived as stable and uniform, and is instead ‘related to human action and agency, and as an instrument of cultural power’ (Harvey 2001, 327). Heritage is a process involving actions such as remembering, commemorating, communicating and passing on knowledge and memories. ‘Doing heritage’ does not simply refer to the preservation or celebration of the past, it also involves negotiating and making decisions about the past in the present (Heritage Decisions Research Team 2015). The inherited past is part of political, community and personal discourses in the present, and it is a structuring condition of our future. It is a ‘social and cultural process that mediates a sense of cultural, social and political change’ (Smith 2006, 84). In these terms, heritage can be both a condition of social action and a form of social action: if heritage can be a form of cultural capital and a way of connecting people with each other and the environment that surrounds them, the promotion of heritage or involvement in heritage can be considered to be a form of social action. (Harrison 2010, 245) It is a small step to move from recognising heritage as social action to specifically directing that action towards social justice (e.g. Byrne 2008; Newman and McLean 1998; Sandell and Nightingale 2013). Indeed, it has been argued that there is a moral imperative to address issues of economic and social inequality through heritage activities (Kiddey 2017; Smith, Shackel, and Campbell 2011, 1). For example, retrieving and celebrating working-class heritage is ‘intrinsically linked to projects of protest and social justice’ because of the historical suppression and erasure of these histories (Smith, Shackel, and Campbell 2011, 13). In an archaeological setting, the Colorado Coalfield War Project exhumed the class struggle of the Ludlow massacre to raise awareness of the present-day struggles of working families (McGuire 2008, 189). The massacre occurred in 1914, when the Colorado National Guard attacked a temporary encampment housing 1200 workers and their families who had been evicted from their company properties. The archaeological project used students’ participation in archaeology to teach them about the importance of labour rights, class relations, and their rights as workers. Such political activism is intrinsic to the application of various strands of participatory research in archae- ology, museums and heritage more widely (e.g. Atalay 2012; McGhee 2012). Participatory research involves community and institutional participants collaborating either equally on projects or with community participants taking the lead. Such research has particularly strong roots in postcolonial contexts where indigenous rights have come to the fore as a response to deep-rooted and stark struc- tural and value-based inequalities. Indigenous heritage offers case studies where the dissonant qualities of heritage are irrefutable and the inequalities in recognition and representation are easily visible. Outside these settings, in western Europe for example, the divisions between ‘experts’ and ‘communities’ remain valid even if the lessons learnt from indigenous heritage projects cannot be directly translated and applied (Smith and Waterton 2009, 141). By way of response, Laurajane Smith and Emma Waterton have worked together on a sub- tler theorisation of how social inequalities can be challenged through heritage policies and practices (Smith and Waterton 2009; Waterton and Smith 2010). They largely draw upon Nancy Fraser’s work and specifically her status model of recognition and its application to social justice (e.g. Fraser 2000, 2003; Lister 2008). Political theorists use recognition as a normative concept to mean the recognition of differences in identity and status between groups within society. Fraser argues that addressing inequal- ities through the recognition of collective identities alone can lead to the simplification and reification of those identities. For example, there are now many instances in the UK and internationally where working-class communities, once under-represented in established discourse, have been foregrounded in museums and at heritage sites. While a valuable rebalancing, defining working-class heritage can also homogenise complex identities, and reify and enhance divisions between communities. Rather than addressing inequalities, representing a specific working-class heritage can marginalise groups still further from mainstream discourse. Fraser proposes an alternative to this identity model of recogni- tion. In her status model she argues for recognition through parity of participation, which addresses 4 R. JOHNSTON AND K. MARWOOD inequalities by bringing subordinated groups and individuals into social life as peers or full partners in social interaction: ‘redressing misrecognition means replacing institutionalised value patterns that impede parity of participation with ones that enable or foster it’ (Fraser 2000, 115). Laurajane  Smith and Emma  Waterton, rightly we feel, present Fraser’s theory as a strong nor- mative framework for guiding policy and practice in the management of heritage and working with communities (Smith and Waterton 2009; Waterton and Smith 2010). This framework recognises and enables parities of participation between and within communities and seeks to redress inequalities in how decisions about heritage are made and how heritage is represented and communicated. By connecting heritage with social action, theorists can explain how people who have been historically and culturally excluded can engage with heritage as a way of building a sense of their shared identity in the present (Harrison 2010, 259). While we agree with this in principle, we also identify something missing from this formulation. Forging links with the past necessarily involves communities in a process of discovering, learning and producing new understandings about their past. Heritage for social action might involve the use of unofficial heritage activities or the challenging of existing heritage practices, but heritage researchers build their counter-narratives using oral histories, archaeological discoveries and historical archives. Despite the importance of the research underpinning representations of heritage, the term ‘research’ is rarely used in heritage studies literature. Perhaps this is because it carries exclusive associations with academic and institutionalised heritage discourse. For us, RCH was about a decentring, or dispersal, of research and the acknowledgement of ‘shared epistemologies’ (Pahl and Pool 2011) between com- munity and university-based researchers. We use the remainder of this article to consider the place of research within a selection of the projects completed during RCH. Our primary sources are semi-structured focus groups we held with some of the participants in three RCH projects in Sheffield and Rotherham: a homeless hostel for young people (Roundabout); a primary school, with children aged 10–11 (Portals to the Past); and a local history group, where many of the participants are middle-aged or retired (Heeley History Workshop). We selected the three projects to be broadly representative of the different constituencies and types of projects we worked with during RCH. We chose focus group interviewing as a method because we wanted to understand a range of different experiences that participants had of research within the pro- jects, and we judged that the interactions within the groups would result in strong, multi-dimensional responses (Krueger and Casey 2009, 19, 20). We also believe that the group conversation was a logical continuation of the collaborative culture that existed during the projects – it made sense to reflect collectively on co-produced research. Our aim during the conversations was to draw out participants’ experiences of undertaking heritage research as a collaboration between community organisations and universities. Specifically, we sought accounts of where agency to undertake research resided within the projects and how if at all this agency changed during the research. Each conversation lasted around one hour, and they took place in late 2013 (within 2–3 months of the completion of the RCH projects). They were recorded and transcribed, and the participants gave their consent following research ethics processes approved by the University of Sheffield. We began the conversations with a brief introduction and then followed three lines of discussion: (1) Who was doing research and what kind of research were they doing? (2) How, if at all, was heritage different as a framing device or as a theme within these projects compared with the organisation’s usual activities? (3) What changed because of the project? We chose these as guiding topics as they addressed the status of research, researchers and heritage in the projects – in only one case (Heeley History Project) did the community group have prior experience of undertaking research on their heritage. We kept the conversations informal and allowed the sessions to be led as much by the participants’ interests as our own. We analysed the transcriptions of the conversations with qualitative analysis software using a basic thematic approach, which allowed us to identify and compare the different ways in which the participants talked about their experiences of heritage and research. INTERNATIONAL JOURNAL OF HERITAGE STUDIES 5 Better than doing nothing Roundabout is a Sheffield-based youth charity. They maintain a hostel as an emergency or medi- um-term residency for young people who are homeless. During the HLF-funded project, one of us (KM), together with academic historians and literature specialists, helped the hostel’s residents to research the history of their hostel, which is a protected (Grade II Listed) building dating to the late 1700s. Together the team devised a series of activities that involved the young people finding out about the building, the people who lived there and the local area. The transient nature of the hostel’s residents (they normally stay for up to six weeks) meant that only a few young people participated in more than one activity. These activities included a heritage trail, trips to local heritage sites and research visits to the local studies library and the university (Figure 1). As most of the young people would not remain in the hostel to see the conclusion of the project, the research process itself was privileged above potential outputs. The primary aim was to introduce the young people to the places and practices of research rather than on achieving tangible outcomes. Our conversation with the team at Roundabout included a youth worker, the CEO, the hostel manager and the artist-facilitator employed to produce a film about the project. For Roundabout, who regularly organise activities for their residents, research formed another way to bring the young people into unfamiliar spaces, as Ben (BK), the charity’s CEO, noted: as an organisation we try and help people with their social skills and just doing things that they wouldn’t normally do, going to places they wouldn’t normally go to. the library was good, it took them to somewhere they hadn’t been before – it was personal, some people were researching their area and realised there was old pictures from their area and stuff and the university trip, again they went somewhere where they wouldn’t usually go and mix with people they wouldn’t usually mix with so they got a lot from that. (BK) It was not only the young people who, by researching, were doing ‘things they wouldn’t normally do’ and enabling access to ‘places they wouldn’t normally go’. The hostel staff and academic researchers were also on new ground: Figure 1. a visit to Sheffield local Studies library during the heritage project with roundabout youth housing charity. Source and image copyright: Justine gaubert. 6 R. JOHNSTON AND K. MARWOOD we all were researching, we weren’t trying to push the young people to do the majority of the research but it was sort of out of my comfort zone as well so definitely it was out of theirs […] I think altogether everybody contributed but the young people contributed massively as well, which was great. (RA – hostel youth worker) I had to go and learn those things as well – so that’s been for me, as a researcher, really valuable I think finding ways to do research differently but to communicate that with different people. (KM – academic researcher) These reflections draw out the discomfort that may come from working with people and in places with which we are unfamiliar: ‘because it was really intimidating for the young people, but equally I think the students were … it was out of their comfort zone’ (KM). Co-production does not necessarily start with an equality of access to resources, whether those be material or knowledge. Roundabout had clear expectations about where expertise lay, with the university providing ‘the technical stuff of where to search and how to search’, for instance, and in practice taking responsibility for devising the research activities. Using established measures of research outcomes, the project produced relatively little new knowl- edge about the hostel buildings and their former residents. We failed, for example, to locate the original deeds and owners and only found out basic details about former occupants from census data and trade directories. Yet our conversation barely touched on these aspects of the project. Instead, nearly a third of the discussion was spent considering individuals’ personal engagement with heritage and doing research: ‘this project it kind of surprised me in that a lot of the people who I thought would never get engaged did seem the most engaged’ (RA). going to that library, I don’t think any of them had gone to that library before, and certainly not into the local history bit, and you know, they might not go this year or the year after but in ten years’ time they might go and say, ‘I’m interested in my family’. (BK) By forging personal connections, the young people made the past relevant to their lives. Their research operated as a means of exploring ways to belong, placemaking and anchoring in a fluid community and was a means of drawing freshly discovered and deeply set strands back into their personal histories. The young people compiled a scrapbook to document their connections with the hostel and the heritage project. The scrapbook wove together evidence from the library and archives with the young people’s stories and their written reflections on experiences of the hostel: I think in the beginning the scrapbook talks about just the hostel and the history of the hostel and what we have found out but then further on it goes into the young people’s stories and messages, so hopefully they’ll just carry on doing that and then when people come in nearly two, three years’ time they’ll realise that there was other people in the same situation that have come from the same backgrounds as them … so hopefully it will keep evolving and getting added to. (RA) The focus on storytelling during the scrapbook sessions encouraged the young people to record their experiences using their own symbols, methods and art forms (Kindon, Pain, and Kesby 2007, 17): ‘food vouchers, cigarettes, life skills timetable … just examples of their life at the moment at Roundabout’ (RA). The participatory methods, introduced by the academics, foregrounded the links between personal experiences and the histories of the building and the community. It also provided a way to continue a reflective conversation between the young people around the theme of heritage and identity. This sense of narrative was less visible when different people took part in each of the participatory workshops. The scrapbook, on the other hand, enabled stories to unfold, to be physically layered, and to ‘speak’ to one another despite absences: they’ll have something long lasting in Roundabout other than just their file that we’ll put on the computer, they’ll have something that’s tangible, you know a letter or something that they produced in the scrapbook…I kind of made a joke to them that I would phone them up in ten years’ time and say ‘remember when you said you would be doing this by now, what are you doing?’ So it just makes them think about what they have got…their future, what they want (RA) This experience may reflect a positive impact on the participants’ well-being. In a study of the influ- ences of heritage on the well-being of hospital patients, Erica Ander and colleagues identified ‘per- sonal memories and recollections giving a renewed sense of identity’ as one explanation that patients gave for how heritage improved their well-being (Ander et al. 2013, 235). By engaging in research INTERNATIONAL JOURNAL OF HERITAGE STUDIES 7 and reflecting on their past and present circumstances, the participants constructed hopes for their futures. As Ray said, the project encouraged the young people to look at ‘the past and the present and where they are at in their lives’. A place of possibilities In Portals to the Past primary-age children (10–11  years) in Rawmarsh, Rotherham, explored the past by stepping through a portal built from timber by the project’s artist, Steve Pool (Figure 2). The portal acted like a time-machine. As they stepped through the portal, the children chose when and where in the past they wanted to research. Classroom sessions, led by academics from education and English literature, explored aspects of Rawmarsh’s history, including mining heritage through the texts of local author Arthur Eaglestone and Anglo-Saxon writing and culture. These activities were enhanced with a small archaeological excavation alongside play and improvisation outside in which the children devised their own short films to be screened in the classroom (see Pool 2013). The central premise of the project, designed in collaboration with Rotherham Youth Service, was to introduce children to the imaginative possibilities of history. Although academic researchers led the sessions, the facilitators invited the children to draw upon their existing knowledge of history and become researchers themselves. The portal, as described by Steve, was a ‘proposition’, a threshold that marked the boundary between past and present, fact and fiction: the portal grew from the idea that the past wasn’t fixed. The idea of history was kind of under question because we weren’t looking for reality we were looking for the idea of time travelling – you could travel to the future or you could travel to the past. (SP – artist and educator) Although prompted by academics and aided, in part, by classroom resources, the children were free to select their own period from history: it’s critical that they found their own area of enquiry and then researched it themselves and that doesn’t neces- sarily mean that they went in books it could mean that they asked each-other what it could feel like to go down the pit or what it would be like to be in the war or what it would feel like to win the World Cup, so it was a very personally-centred research process. (SP) Figure 2. School children from rawmarsh step through the ‘Portal to the Past’. Source and image copyright: Steve Pool. 8 R. JOHNSTON AND K. MARWOOD Kate Pahl, the academic lead on the project, explained why it was important that the children were co-researchers in the project. It made it possible for the children to appreciate the past as open, as a place of possibilities, as something creative in the present and for the future: the children were finding their own heritage and their own past. What came out was a very imaginative space of practice. Having watched children use the internet in the past it has the effect of closing down the ‘as if ’, the site of possibility. And my interest in the project has always been this idea of the past as almost like a ‘not yet’ future – it’s a real kind of challenge to this concept of what history is. (KP – university researcher) The research emerged as an interesting and evolving process, which countered some of the children’s perceptions of history as immutable: one of the things a child said about the [archaeological] dig was that they never knew what was going to come out of the dig and it’s almost like you never know what was going to happen next and because experts kept appearing there was an on-going surprise element and then they went to the archives at the end. It almost felt like it was making history a different proposition from the proposition of it being a fixed thing, through the doing of it through the week; it was like going through the portal rethought history. (KP) There was an important tension between the imaginative and open spaces that heritage offered and the authenticity of the experience and the agencies of the children. In terms of authenticity, the archaeo- logical excavation is a particularly important example. The project began with the idea of simulating an archaeological excavation in a sand pit. This changed when two trained archaeologists joined the project and suggested they undertook ‘real’ excavations in the school’s grounds. Kate recognised this as significant: the dig began and it was beautiful, the dig, the children absolutely loved it and I was really excited because actually the affordances of the dig as an actual dig suddenly swooped over them because there they were finding clay pipes, they were finding coal, they were finding all of this stuff that was just incredibly generative. (KP) This valuing of authenticity highlights that the experience of researching was transformed by greater equality in the roles that the children took on alongside the ‘experts’ and their access to the resources of knowledge and tools. Kate had doubts about whether the children could undertake the project, and particularly if they had the abilities to make the films. Yet, when challenged, the children responded positively and excitedly to the opportunities. This is one of the challenges of recognition, arguably, that it requires us to change our expectations or our assumptions about people. In recognising where knowledge and skills lie, we open the possibilities for empowerment: I think the week was a kind of playing with their agency being in a new space and it was definitely a different kind of experience, which I think everybody who was involved in that week would say was quite different. The portal idea was part of that difference – it’s the expansion of what you can do. You can go through a portal, you can be different, you can think differently, even with experts coming in. (KP) A social fellowship For our final conversation we visited the Heeley History Workshop, a local history group that meets weekly to discuss memories and stories relating to the parish of Heeley in Sheffield (Figure 3). Their project, Social Life in Heeley and Thereabouts, documented the recreational activities of people in Heeley during the twentieth century. They recovered memories of church life, Boys’ and Girls’ Brigades and street parties using photographs, documents and oral histories. Working with a filmmaker and photographer, the group produced a short film that communicated their findings and portrayed their research processes. The film revealed how shared histories combined with a passion for research cre- ates networks and friendships or what Lilian (LH), the group’s chairperson, refers to in the film as a ‘social fellowship’ (Thorpe 2013). Although some members use the local archives for their research, the participants mainly collect their material from the community, as Lilian described: it’s amazing when you are doing research you’ll find out something that links up with something, either that somebody else knew about or they were interested in and they got the chance to link with somebody else to get some more information and sometimes you can find almost that you are related to each other. (LH) INTERNATIONAL JOURNAL OF HERITAGE STUDIES 9 Lilian explained that participants return to the group for two reasons: ‘because they enjoy the social contact’ and ‘because they are interested in what we are finding and that they might have a link with more of the research that somebody might be doing’. This is a sentiment echoed by Sid who, in addition to attending to share his memories of Heeley, also ‘comes for the company’. The books the group pro- duces are a combination of anecdotes, personal stories and family photographs set alongside archival research conducted by group members in local libraries and archives. The group was motivated by an urge to document or retrieve something from the past that had been neglected or forgotten. They were lamenting the loss of social life in the area, particularly recreational activities that involved the community coming together in times of need or to celebrate Christian festivals. Lilian, for example, spoke about how in the past ‘a lot of people were more content that they are today, it wasn’t a materialistic world’. She described acts of neighbourliness as the ‘sort of thing that people look back to in the good old days’. Not knowing your neighbours and those in your own community can leave you ‘really isolated and lonely even if you are surrounded by people living in houses and that is so sad’. They are forging a new community by coming together to research and learn from each other about their own pasts and the area’s history. This community of researchers became manifest through the participants’ shared connections with Heeley, whether or not they lived in the parish, and most critically through their help for one another (sharing expertise): Some have become more interested in their family history because they have got help from other people. Jean, who has not been here today, she does a lot of work on family history and she’s done quite a lot for Janet whose grandparents and great, great grandparents lived here, she’s also done a lot on David’s family history research because he didn’t know a great deal about it. Sid has done quite a lot, not just on people in this group, but he’s done quite a lot for other people who visited the group and Roger’s done some of his own research and Jean’s done some of it. (LH) Through research they have established what Derek, a member of the group, described as ‘a social gathering’. Although they are different people, they have built a community founded on an interest Figure 3. a meeting of Heeley History Workshop. Source and image copyright: gemma thorpe. 10 R. JOHNSTON AND K. MARWOOD in and an attachment to place and in asking and answering questions about that place. Their social fellowship is both a means of researching heritage and a response to a decline in cooperative social life that the group recognises in present-day Heeley. They are countering a condition that Richard Sennett and others have also observed: ‘modern life is ‘de-skilling’ people in practising cooperation’ (Sennett 2012, 8). The process of co-production (working with academics, filmmakers and students) and experimenting with new methods, such as filmmaking, storytelling and recording oral histories, revealed that although they were seeking to document a time when a sense of community was central to the social life of working people, that process forged a new community or fellowship of researchers (see Wenger 1998). Disrupting misrecognition and maldistribution in heritage projects We began this article with an explanation of heritage as a resource in society that is contingent upon and conditions social action. Heritage is caught up in political and cultural discourses on multiple levels, and influences power relations and identities in the present and into the future. Societies are unequal and unjust to varying degrees and the agencies of heritage management unavoidably work with, perpetuate and have the potential to change these inequalities. It is widely argued that because of this there is a moral imperative to appreciate and address inequalities in access, participation and representation of marginalised groups within society during heritage practice (e.g. Byrne 2008; Newman and McLean 1998; Sandell and Nightingale 2013). While this principle might be relatively uncontentious, there is considerably more variation in and dispute about the best ways to democratise heritage, make it widely accessible and relevant, and part of a process for positive social change. We are particularly interested in the application of Nancy Fraser’s theorisation of social justice, in which she makes the case for accommodating both recognition and redistribution. Fraser’s work has received limited attention in heritage studies, although Laurajane Smith and Emma Waterton have employed it effectively to explain how parity of participation can foster ‘a heritage practice that identifies subordinate status within the management process and reconstitutes those groups so that they find an equitable position from which to interact fully, as peers’ (Smith and Waterton 2009, 81). Our approach is distinctive because we have sought to understand the ways that researching her- itage, as a practice, can plainly and self-consciously work towards social justice within and poten- tially beyond projects. We accept that our concern with community-based research aligns with Participatory Action Research (PAR) (Prasad 2014) and related community-based research models that are increasingly employed in archaeology, public history and museums (see chapters in Atalay et al. 2014; Facer and Enright 2016, 82–89). However, we would make a distinction between the prioritisation of achieving wider social change in PAR and the more diverse priorities within the community projects in which we were involved: for instance, documenting social life in Heeley and studying the archives and architectural history of a Georgian building. A second distinction to make is between the rather narrow disciplinary approaches that characterise public or community archaeology and public history when compared with the mélange of activity (as academics we might term it interdisciplinarity – though see below for an alternative term) that constitutes research within community heritage projects. We used three case studies from RCH to explore the influence of researching within heritage projects. The case studies offer a method for expanding and enriching our initial observation about the role that research might be playing within the projects. They served a heuristic process through which we devised a framework for undertaking future projects. We term this framework action herit- age and describe it in the following section. A key influence on the formation of this framework were ‘disruptions’ within each of the case studies. By disruption, we mean perceptible changes that took place in how the projects were oriented and how the participants (including ourselves) thought about the research. We think these disruptions reveal material and social inequalities within the projects. These disruptions share some characteristics and in other respects are specific to individual projects. INTERNATIONAL JOURNAL OF HERITAGE STUDIES 11 We will take a moment to review these disruptions and to relate them to the concepts of recognition and redistribution that are core to Fraser’s theory of social justice. Working with the young people staying at the Roundabout hostel, the disruption in the research process occurred when the residents began incorporating their personal stories into the scrapbook that the project used to document the research. The scrapbook emerged as a disruption during the conversation with the project team and in our reflections about the scrapbook workshop. The session and the scrapbook, as artefact, provoked greater participation and engagement from residents com- pared with the other activities. This represented a shift in the recognition of the residents and their stake in the project. We suggest there were two dependent actions that made recognition effective. The first was the emphasis in the scrapbook on personal histories rather than the building’s story, which made the research more directly relevant to the participants and made their contributions more direct and accessible. This was itself dependent upon a recognition of the residents’ stories as valid research within the project. The scrapbook also enabled a redistribution of a resource – the hostel’s archive – from Roundabout to the residents. Ray, the youth worker, commented on the way the scrapbook differed from the residents’ digital files held at the hostel by being ‘tangible’ and something the res- idents produced themselves. In discussing the experiences of care-leavers in Australia, Wilson and Golding (2016) proposed that the children should have greater participation in the creation of the official records of their time in state care. The scrapbook at Roundabout perhaps offers an example of how participation in the creation of archives might be enacted. This disruption illustrates how a shift in the project’s objectives (away from the building and towards the personal histories of the residents) increased parity in the roles and status of the participants within the project and changed the character of engagement. It was a relatively unproblematic refocusing in the Roundabout project because the outcomes of the archival researches were thin and the ‘standard’ research activities (e.g. library visits) were less successful in attracting interest from the young people. In Portals to the Past, the underlying idea of the project was disruptive in that it offered children an opportunity to be creative and imaginative with history: ‘we weren’t looking for reality’ (SP). The disruption, in the terms that we are using here and which came out most clearly in our discussion with the project team, was in certain respects the least creative part of the project: the archaeological excavation. It showed that even when there are strong principles of social justice and co-production at the core of a project, as there was in Portals to the Past, misrecognition and maldistribution can still exist within components or activities. The excavation was initially planned as a simulation, where the children excavated objects hidden within a sand pit. Yet the archaeologists decided to open real excavations in the school grounds. This changed the dynamic for all the participants, both the children and the academic researchers. The shift from simulated to real excavation marked a recognition of the children’s abilities to participate successfully in the research. We would also interpret it as a form of redistribution, because the children were given access to the archaeologists’ tools and taught to use them: trowels, sieves and trays for artefacts. The excavation was successful because it yoked these aspects together: recognition of the children’s capabilities to excavate, and redistributing the resources that make excavation possible alongside professional archaeologists. The real excavation did not remove distinctions between the adult professionals and the young researchers, but it did acknowledge where the inequalities lay and sought to ameliorate them. The Heeley History Workshop offered the least potential for disruption as the group is well-estab- lished and has spent many years researching Heeley and publishing books about its history. Much of the project’s expertise lay within the group, while the university brought academic researchers, students to help with digital recording, and a filmmaker. It was Gemma Thorpe’s film about the project that became the disruption (Thorpe 2013). Rather than documenting the outcomes of the group’s research – recreational activities in Heeley – she instead collected images and audio recordings of the group talking about the process of doing the research and reflecting on the character of the group itself. We remember feeling apprehensive when the film was shown for the first time, at a gathering to celebrate the end of the project. Yet the film was well-regarded and it stimulated a continuing discussion, which we took into our recorded conversation with the group, about the character of the social fellowship that 12 R. JOHNSTON AND K. MARWOOD emerges through participation in the research. We perceive this as an example of how recognition and redistribution works within a community organisation through research: recognising one another’s contributions and sharing knowledge and learning. This is not a smooth, unproblematic process. It brings out tensions between individuals, asymmetries in status and so forth. The point, though, is that the group perceives the fellowship as the normative state and one that is largely a consequence of the group’s purpose: researching Heeley’s heritage. These three disruptions are examples of how acts of recognition and redistribution can influence the parity of participation within heritage research projects. The case studies also illustrate the ways that researching is socially active and empowering: it personally connects the participants with the heritage that forms the focus of the projects (at Roundabout, the young people’s stories in the scrapbook became more important than the story of the hostel); researching opened up new (future) versions of the past for the children in Rotherham, and critically it was a heritage they controlled and created; and the local history group in Heeley found connections with one another, making and remaking their community in the present through their research into Heeley’s past. These reaffirm for us that the practices and processes of researching heritage are transformative and create diverse social and cultural capital (see Graham 2002). Action heritage We conclude by generalising from our analysis of the RCH projects to present a framework for co- produced heritage research, which we term action heritage. Action heritage privileges process (action) over outcomes and addresses social inequalities through a dispersed and redistributive model of research practice. We identify four vectors to the action heritage framework: undisciplinary research, active rather than activist, with parity of participation, which is sustainable and sustained (Figure 4). Figure 4. the action heritage framework. INTERNATIONAL JOURNAL OF HERITAGE STUDIES 13 Researching community heritage should be undisciplinary. As academic researchers within RCH, we were a multidisciplinary team comprising archaeologists, ethnographers, historians, linguists, literature specialists and musicologists. The project brought us to interdisciplinary spaces and into profitable collaborations with one another. Contrastingly, the community-based researchers under- stood but did not affiliate with the disciplinary differences we recognised as academics and which contributed to our identities during the project. They approached research questions and evidence without any prior disciplinary claims or boundaries. They were undisciplinary (‘indisciplinaire’), to use a category within the taxonomy that Ayuko Sedooka and colleagues recently published (2015, 375, 376). We would suggest that the term ‘heritage’ has a powerful role in recognising the validity of this undisciplinary position and enabling the variety of activity that constitutes research within community heritage projects. The second vector of our framework is the privileging of process over outcomes, which is to say emphasising the transformative experiences of researching over the impacts achieved from research results. This has been a prominent strand throughout this article, as we have sought to understand the ways that researching heritage, as a practice, can plainly and self-consciously work in more socially just ways. We accept that our framework aligns with PAR and related community-based research models. These models are founded on a commitment to working with members of communities that have traditionally been exploited or oppressed in efforts to bring about social change (Kindon, Pain, and Kesby 2007). They foreground the research process as a means of enabling social action: ‘gener- ating knowledge that is both valid and vital to the well-being of individuals, communities, and for the promotion of larger-scale democratic social change’ (Brydon-Miller, Greenwood, and Maguire 2003, 11). However, we would make a distinction between the prioritisation of achieving social change in PAR and the more diverse interests and priorities within the community projects in which we were involved. In the case of RCH, where the projects were funded for a maximum of 12 months, it would be unrealistic to judge the success of projects on whether they achieved wider, large-scale social change. Such ambitions take time. However, we could undertake research about heritage that ‘challenges unjust and undemocratic economic, social and political systems and practices’ (Brydon-Miller, Greenwood, and Maguire 2003, 11) within the research process. The third vector of our framework is the application of a dispersed and redistributive model of research practice. This model aspires to parity of participation in research by explicitly drawing on Nancy Fraser’s theories about recognition, redistribution and social justice. Social justice is achieved by enabling full participation through equality of status and access to resources. In the context of heritage research, this means surfacing and addressing inequalities between community-based and institutionally-based participants. This must involve recognising the expertise that lies within com- munities and ensuring that the resources for research are fairly distributed to enable more equal opportunities to participate. There are cases of universities and funders that, in parts or whole, accept and support these principles. There are many more examples where structures and policies perpet- uate inequalities through misrecognition and maldistribution. Coming from a university, our sense is that this is a challenge to universities and funding bodies to take responsibility for breaking down inequalities in who has opportunities to participate in research. Universities can achieve this in many tangible ways: for instance, by opening access to their research tools (such as libraries and archives) for community-based researchers, and bringing community-based expertise into research governance (Beebeejaun et al. 2015). Universities are amongst the institutions that should take responsibility for the fourth vector of action heritage: sustainable and sustained. The durations of the RCH projects we reviewed in this article were limited by funding and the consequent availability of staff in the partner organisations and the university. This made it difficult for us to achieve long-term legacies, although anecdotally we know there have been some (see Vergunst et al. 2017, 162–165). In the Roundabout project, for instance, the one participant who attended all the research sessions was also the person who the youth worker identified as most changed by the experience. Ours is not an isolated experience (e.g. Atalay 2012, 128–166). In their review of the Connected Communities programme, Facer and Enright (2016, 14 R. JOHNSTON AND K. MARWOOD 158) recommended to universities and funders that time is considered as ‘critical infrastructure’ for collaborative research: ‘time is to collaborative research what a supercomputer is to big data’. We have incorporated time into action heritage as our foundational vector: sustainable and sustained collaborations. We will finish by returning to the school in Rawmarsh that opened our article. Reflecting on the project, Kate Pahl said, ‘I do think there is something about the way [the children] did become experts and it did reposition them. I mean, I particularly remember this one kid talking about the miner’s strike and finding out how much he was earning and he said, “that’s shocking!”’. It is this repositioning of the participants as researchers that we believe was so powerful within RCH. Action heritage is our attempt to distill this repositioning into a framework that can be applied widely and purposefully to achieve social justice through sustained participation in research. Acknowledgements Research for Community Heritage comprised a wide network of researchers in both academic and community settings. For their contributions to the projects we discussed in this article, we would like to thank Ben Keegan and Ray Anderson of Roundabout, Trudie White, Justine Gaubert, Heeley History Workshop (particularly Lillian Haywood), Stephanie Liantzakis, Lousia Stokoe, Caroline Weston, Sarah Hollingdale, Gemma Thorpe, Karen Harvey, David Forrest, Kate Pahl, Steve Pool, Marcus Hurcombe, Hugh Escott, Christine Wallis, Rebecca Hearne and Sara Farey. The university-based researchers on our project were funded by the Arts and Humanities Research Council’s Connected Communities Programme (grants AH/J013498/1 and AH/K007769/1). The community-based researchers were supported by the Heritage Lottery Fund. We are also grateful for additional support from the University of Sheffield’s Arts Enterprise initi- ative. We have enjoyed and profited from opportunities to discuss our ideas with colleagues at a Connected Communities symposium on co-production and social justice organised by Keri Facer, Andrew Miles, Pat Thomson and Tom Wakeford, and research seminars in Aberdeen, Dublin and Durham. We also learnt a lot from colleagues and collaborators who read and gave us feedback on earlier drafts of this article: David Forrest, Helen Graham, Karen Harvey, Dawn Hadley, Jane Hodson, Jeff Oliver, Kate Pahl, Toby Pillatt, Jo Vergunst and this journal’s anonymous reviewers. Disclosure statement No potential conflict of interest was reported by the authors. Funding This work was supported by Arts and Humanities Research Council [grant number AH/J013498/1, grant number AH/ K007769/1]. Notes on contributors Robert Johnston is a Senior Lecturer in Landscape Archaeology in the Department of Archaeology, University of Sheffield. He researches and teaches in the fields of cultural landscapes, community heritage and later prehistoric archaeology. Kimberley Marwood is a Project Officer working on civic engagement and public value in the Projects and Development Team in Academic and Learning Services at the University of Sheffield. She researches art history and heritage using participatory research methods, including action research and co-production. References Ander, Erica, Linda Thomson, Guy Noble, Anne Lanceley, Usha Menon, and Helen Chatterjee. 2013. “Heritage, Health and Well-being: Assessing the Impact of a Heritage Focused Intervention on Health and Well-being.” International Journal of Heritage Studies 19 (3): 229–242. doi:10.1080/13527258.2011.651740. Atalay, Sonya. 2012. Community-based Archeology: Research with, by and for Indigenous and Local Communities. Berkeley: University of California Press. Atalay, Sonya, Lee Rains Claus, Randall H. McGuire, and John R. Welch, eds. 2014. Transforming Archaeology: Activist Practices and Prospects. Walnut Creek, CA: Left Coast Press. https://doi.org/10.1080/13527258.2011.651740 INTERNATIONAL JOURNAL OF HERITAGE STUDIES 15 Beebeejaun, Yasminah, Catherine Durose, James Rees, Jo Richardson, and Liz Richardson. 2015. “Public Value or Public Harm? Towards Co-production in Research with Communities.” Environment and Planning C 33 (3): 552–565. doi:10.1068/c12116. Brydon-Miller, Mary, Davydd Greenwood, and Patricia Maguire. 2003. “Why Action Research?” Action Research 1 (1): 9–28. doi:10.1177/14767503030011002. Byrne, Denis. 2008. “Heritage as Social Action.” In The Heritage Reader, edited by Graham Fairclough, Rodney Harrison, John Schofield and John H. Jameson Jr, 209–218. London: Routledge. Facer, Keri, and Bryony Enright. 2016. Creating Living Knowledge: The Connected Communities Programme, Community University Relationships and the Participatory Turn in the Production of Knowledge. Bristol: University of Bristol/ AHRC Connected Communities. Fraser, Nancy. 2000. “Rethinking Recognition.” New Left Review 3 (May–June): 107–120. Fraser, Nancy. 2003. “Social Justice in the Age of Identity Politics.” In Redistribution or Recognition? A Political- philosophical Exchange, edited by Nancy Fraser and Axel Honneth, 7–109. London: Verso. Freire, Paulo. 2002. Education for Critical Consciousness. New York: Continuum. Graham, Brian. 2002. “Heritage as Knowledge: Capital or Culture?” Urban Studies 39 (5–6): 1003–1017. doi:10.1080/00420980220128426. Graham, Brian, Greg Ashworth, and John Tunbridge. 2016. A Geography of Heritage: Power, Culture and Economy. London: Routledge. Harrison, Rodney. 2010. “Heritage as Social Action.” In Understanding Heritage in Practice, edited by Susie West, 240–276. Manchester, NH: Manchester University Press. Harrison, Rodney. 2013. Heritage: Critical Approaches. London: Routledge. Harvey, David C. 2001. “Heritage Pasts and Heritage Presents: Temporality, Meaning and the Scope of Heritage Studies.” International Journal of Heritage Studies. 7 (4): 319–338. doi:10.1080/13581650120105534. Heritage Decisions Research Team. 2015. How Should Heritage Decisions Be Made? Increasing Participation from Where You Are. http://pvac-sites.leeds.ac.uk/ccsmgh/files/2015/06/HD-book-final-A4-pages1.pdf. Kiddey, Rachael. 2017. “From the Ground up: Cultural Heritage Practices as Tools for Empowerment in the Homeless Heritage Project.” International Journal of Heritage Studies. Advance Online Publication. doi:10.1080/13527258.20 16.1274669. Kindon, Sara, Rachel Pain, and Mike Kesby. 2007. “Participatory Action Research: Origins, Approaches and Methods.” In Participatory Action Research Approaches and Methods: Connecting People, Participation and Place, edited by Sara Kindon, Rachel Pain and Mike Kesby, 9–18. London: Routledge. Krueger, Richard A., and Mary Anne Casey. 2009. Focus Groups: A Practical Guide for Applied Research. London: Sage. Lister, Ruth. 2008. “Recognition and Voice: The Challenge for Social Justice.” In Social Justice and Public Policy: Seeking Fairness in Diverse Societies, edited by Gary Craig, Tania Burchardt and David Gordon, 105–122. Bristol: The Policy Press. McGhee, Fred L. 2012. “Participatory Action Research and Archaeology.” In The Oxford Handbook of Public Archaeology, edited by Robin Skeates, Carol McDavid and John Carman, 213–229. Oxford: Oxford University Press. McGuire, Randall H. 2008. Archaeology as Political Action. Berkeley: University of California Press. Newman, Andrew, and Fiona McLean. 1998. “Heritage Builds Communities: The Application of Heritage Resources to the Problems of Social Exclusion.” International Journal of Heritage Studies 4 (3–4): 143–153. doi:10.1080/13527259808722232. Ostrom, Elinor. 1996. “Crossing the Great Divide: Coproduction, Synergy, and Development.” World Development 24 (6): 1073–1087. doi:10.1016/0305-750X(96)00023-X. Pahl, Kate, and Steve Pool. 2011. “Living Your Life Because It’s the Only Life You’ve Got.” Qualitative Research Journal 11 (2): 17–37. doi:10.3316/QRJ1102017. Pool, Steve. 2013. Portals to the past. http://www.youtube.com/watch?v=IWC41_D_w9o. Prasad, B. Devi. 2014. “Social Justice.” In The SAGE Encyclopedia of Action Research, edited by David Coghlan and Mary Brydon-Miller, 708–711. London: Sage. Sandell, Richard, and Eithne Nightingale, eds. 2013. Museums, Equality and Social Justice. London: Routledge. Sedooka, Ayuko, Gabriela Steffen, Theres Paulsen, and Frédéric Darbellay. 2015. “Paradoxe identitaire et interdisciplinarité: un regard sur les identités disciplinaires des chercheurs.” [The Paradox of Identity and Interdisciplinarity: A Study of the Disciplinary Identities of Researchers.] Natures Sciences Sociétés 23: 367–377. doi:10.1051/nss/2015056. Sennett, Richard. 2012. Together: The Rituals, Pleasures and Politics of Cooperation. London: Allen Lane. Smith, Laurajane. 2006. The Uses of Heritage. Abingdon: Routledge. Smith, Laurajane, and Emma Waterton. 2009. Heritage, Communities and Archaeology. London: Duckworth. Smith, Laurajane, Paul Shackel, and Gary Campbell. 2011. “Introduction: Class Still Matters.” In Heritage, Labour and the Working Classes, edited by Laurajane Smith, Paul Shackel and Gary Campbell, 1–16. Abingdon: Routledge. Thorpe, Gemma. 2013. Living Heritage. http://vimeo.com/68523096. Vergunst, Jo, Elizabeth Curtis, Oliver Davis, Helen Graham, Robert Johnston, and Colin Shepherd. 2017. “Material Legacies: Shaping Things and Places through Heritage.” In Valuing Interdisciplinary Collaborative Research: Beyond Impact, edited by Keri Facer and Kate Pahl, 153–171. Bristol: Policy Press. https://doi.org/10.1068/c12116 https://doi.org/10.1177/14767503030011002 https://doi.org/10.1080/00420980220128426 https://doi.org/10.1080/13581650120105534 http://pvac-sites.leeds.ac.uk/ccsmgh/files/2015/06/HD-book-final-A4-pages1.pdf https://doi.org/10.1080/13527258.2016.1274669 https://doi.org/10.1080/13527258.2016.1274669 https://doi.org/10.1080/13527259808722232 https://doi.org/10.1016/0305-750X(96)00023-X https://doi.org/10.3316/QRJ1102017 http://www.youtube.com/watch?v=IWC41_D_w9o https://doi.org/10.1051/nss/2015056 http://vimeo.com/68523096 16 R. JOHNSTON AND K. MARWOOD Waterton, Emma, and Laurajane Smith. 2010. “The Recognition and Misrecognition of Community Heritage.” International Journal of Heritage Studies 16 (1–2): 4–15. doi:10.1080/13527250903441671. Wenger, Etienne. 1998. Communities of Practice: Learning, Meaning, and Identity. Cambridge: Cambridge University Press. Wilson, Jacqueline Z., and Frank Golding. 2016. “Latent Scrutiny: Personal Archives as Perpetual Mementos of the Official Gaze.” Archival Science 16 (1): 93–109. doi:10.1007/s10502-015-9255-3. https://doi.org/10.1080/13527250903441671 https://doi.org/10.1007/s10502-015-9255-3 Abstract Introduction Heritage as action, as socially active research Better than doing nothing A place of possibilities A social fellowship Disrupting misrecognition and maldistribution in heritage projects Action heritage Acknowledgements Disclosure statement Funding Notes on contributors References 
work_bv2jgdm2rbhshlxyuqygifxe3i	----	Kelleher_BJHC_FINAL_accurate biblio 1 Beneficence, Justice, and Health Care1 J. Paul Kelleher Kennedy Institute of Ethics Journal 24(1) (March 2014) [Author’s note: The journal sent a pre-copy-edited version of this paper to the publisher, who then published it. The publisher blames the journal, and the journal refuses to pay the publisher’s fee to correct the mistakes. The copy before you now is the copy-edited version that (among other things) fixes some bibliographical inaccuracies.] ABSTRACT. This paper argues that societal duties of health promotion are underwritten (at least in large part) by a principle of beneficence. Further, this principle generates duties of justice that correlate with rights, not merely “imperfect” duties of charity or generosity. To support this argument, I draw on a useful distinction from bioethics and on a somewhat neglected approach to social obligation from political philosophy. The distinction is that between general and specific beneficence; and the approach from political philosophy has at times been called equality of concern. After clarifying the distinction and setting out the basis of the equality of concern view, I argue that the result is a justice-based principle of “specific” beneficence that should be reflected in a society’s health policy. I then draw on this account to criticize, refine, and extend some prominent health care policy proposals from the bioethics literature. Must societies actively promote their members’ health, rather than merely protecting them against the health-harming acts of others? This question can be broken down into two parts. The first part asks why health is important to individuals. Two leading answers are that health is important because of how it bears on individuals’ well-being (Broome 2002) and because of how it bears on their effective opportunities (i.e. what they can effectively do and be in life) (Sen 1980; Daniels 1981). I will assume that at least one of these views is correct, and in this paper I seek to address the second part of the opening question. The second part asks what (if any) 1 For comments and discussion on material included here, I would like to thank Dan Hausman, Gordon Hull, Win-chiat Lee, John C. Moskop, and participants at the 2013 Junior Scholars in Bioethics Workshop at Wake Forest University. 2 normative principles account for a society’s responsibilities to promote the health of its members, and what shape do those responsibilities take? Many bioethicists and political philosophers believe that it must be a principle of justice that provides the key link between the importance of health to individuals and the health- promoting responsibilities of society. But not everyone agrees. As Allen Buchanan has written, “The difficulty is that we may be much surer that someone ought not to lack a certain form of health care than we are about whether the ground of this judgment is a principle that structures our sense of justice or our sense of charity or beneficence or generosity” (1984, p. 57). And after struggling to find a sound principle of justice that guarantees a decent minimum of health care to all, Buchanan famously concludes that a decent minimum should be provided as a matter of law, but that the normative basis for this draws most heavily upon considerations of harm-prevention and prudence, and upon principles of enforceable beneficence and charity, rather than principles of justice. Buchanan concedes that individuals do not in general possess a moral right that their society actively promote their health, because individuals do not possess rights to beneficence. However, Buchanan insists that this is not cause for dismay, since it nicely explains why we find it so difficult to be precise about what a decent minimum should include. For in his view (and indeed in the view of many theorists), duties of beneficence are “imperfect” duties, which “by their very nature . . . are not precisely delineated” (p. 77) and which tolerate considerable leeway in deciding how and when to discharge them. In this paper I too will defend the view that societal duties of health promotion are underwritten (at least in large part) by a principle of beneficence. But I will argue that this principle is a principle of justice, and that the duties it generates correlate with rights. In support of this argument, I will draw on a useful distinction from bioethics and on a somewhat neglected 3 approach to social obligation from political philosophy. The distinction is that between general and specific beneficence; and the approach from political philosophy has at times been called equality of concern. After clarifying the distinction (section 1) and exploring the basis of the equality of concern view (sections 2 and 3), I argue that the result is a justice-based principle of “specific” beneficence that should be reflected in a society’s health-related public policy. In section 4 I discuss ways in which this view should shape health policy. Despite endorsing some concrete conclusions, my discussion in this final section is admittedly vague. But as I shall argue, Buchanan was incorrect to associate vagueness with charity and precision with justice. When it comes to justice in health care, sometimes vague principles are all that moral theory has to offer. Section 5 concludes. 1. GENERAL AND SPECIFIC BENEFICENCE I will understand beneficence as action that promotes another’s interests for its own sake, and not merely because another’s doing well is instrumentally useful for one’s own purposes. It is important to distinguish this conceptual understanding of beneficence from two further moral claims. The first is the claim that there is some duty (or duties) to be beneficent. This is a claim I shall argue for. The second moral claim is that duties of beneficence (if they exist) are always duties of generosity or charity, and never duties of justice. This is a claim I reject. Beauchamp and Childress draw a further distinction between general and specific beneficence. They write that specific beneficence “is directed at particular parties, such as children, friends, contractors, or patients. . . . By contrast, general beneficence is directed beyond special relationships to all persons” (2013, p. 205). This distinction is not uncontroversial. For instance, while Beauchamp and Childress draw heavily upon the moral framework of W. D. 4 Ross, some of Ross’s remarks suggest that he would bridle at the notion of “specific” beneficence. Ross claims that duties of beneficence are those that “rest on the mere fact that there are other beings in the world whose condition we can make better in respect of virtue, or of intelligence, or of pleasure” (1930, p. 21). This formulation clearly betokens Beauchamp’s and Childress’s notion of general beneficence. Ross further suggests that beneficence should be distinguished from moral requirements that derive from special relationships. He writes: In fact the theory of “ideal utilitarianism” . . . seems to simplify unduly our relations to our fellows. It says, in effect, that the only morally significant relation in which my neighbours stand to me is that of being possible beneficiaries by my action. They do stand in this relation to me, and this relation is morally significant. But they may also stand to me in the relation of promisee to promiser, of creditor to debtor, of wife to husband, of child to parent, of friend to friend, of fellow countryman to fellow countryman, and the like; and each of these relations is the foundation of a prima facie duty, which is more or less incumbent on me according to the circumstances of the case. (p. 19) When combined with Ross’s understanding of beneficence, this passage in effect claims that there is more to morality than beneficence, and that this further content relates to our past actions and our special relationships. This gives some support to the view that “specific” beneficence is a misnomer: for Ross, it seems as if beneficence is always general beneficence whose rationale rests on “the mere fact that there are other beings in the world whose condition we can make better.” Whatever might be called “specific beneficence” should, Ross suggests, be called something else. In Bioethics: A Systematic Approach, Gert, Culver, and Clouser (GCC) also reject the notion of specific beneficence. In response to Beauchamp and Childress, GCC write [Beauchamp and Childress] are clear that doctors, nurses, and others in the health care field have specific duties to their patients that are determined by their profession and by the practices of their specific institution. To lump these varied and detailed professional duties together with the misconceived “general duty of beneficence” and place them all under one principle of beneficence is to substitute a slogan for substance. (Gert, Culver, and Clouser 2006, p. 120) 5 GCC here press two objections to Beauchamp and Childress’s discussion of beneficence. First, GCC do not agree that general beneficence is a genuine moral obligation. In their view, it is better categorized as a moral ideal, which grants persons the “choice in deciding when to follow [it] and with regard to whom” (p. 115). Second, GCC hold that when there is a genuine duty to promote another’s interests, that duty will come from some more specific relationship (e.g. the doctor/patient relationship), and it should therefore not be classified as a form of beneficence at all. Thus in one respect GCC are closer to Ross than are Beauchamp and Childress, and in another respect GCC are farther from him. GCC are closer to Ross insofar as they distinguish sharply between the morality of beneficence and the morality of special relationships; but they are farther from Ross insofar as GCC refuse to speak of duties or obligations of beneficence at all. Since I intend to endorse justice-based duties of specific beneficence that have their basis in special relationships, I must reject the view, explicit in GCC and implicit in Ross, that the only genuine form of beneficence is general beneficence. To begin making my case, I note first that others in the Rossian tradition are quite willing to speak of duties of beneficence that arise out of special relationships. For example, the leading intuitionist philosopher in the Rossian tradition, Robert Audi, writes I begin by speculating with a notion of autonomy that might be considered broadly Kantian . . . , but also might be viewed as Rossian insofar as it takes duties to others to arise in specific relationships. . . . On the radical autonomy view, we do not have a duty of beneficence unless we autonomously incur it. We often do incur it, of course, and in at least two ways: explicitly, say by promising to do good deeds, and implicitly, by some other free undertaking or commitment. (2004 p. 95) For Audi, then, the notion of specific beneficence is not conceptually incoherent, since it is not incoherent to speak of a duty of beneficence arising out of a specific deed or relationship. Still, 6 even if Audi is correct that the notion is not incoherent, it is clearly a separate question whether it is theoretically useful to speak in terms of specific beneficence. In my view, there are indeed good theoretical reasons to retain and employ the concept of specific beneficence. For one thing, many special duties appear to require the cultivation and exercise of a disposition to promote another’s interests or good. Since “beneficence” is already a perfectly good term to characterize action of that sort, I see no reason to avoid it simply because the relevant duty has its basis in a special relationship. Second, we can easily give further texture to the distinction between duties of general beneficence and duties of specific beneficence by saying that only the latter correlate with claims. A child, for example, has a claim on the beneficence of her parent. By contrast, while it may be true that I would have genuine moral reasons to display beneficence toward each of a billion intelligent creatures discovered on Venus, GCC are arguably correct that none of them can invoke a corresponding claim against me.2 (This conclusion might not follow in certain well-defined cases of nearby rescue, but I lack the space to explore that possibility here.3) Thus, we can say that general beneficence is the beneficence I do or should display toward those who nevertheless do not have a claim to it, whereas specific beneficence is beneficence I do or should display toward those who do hold a claim to it. Moreover, once the idea of claims to beneficence is introduced, it is natural to allow that different special relationships generate claims of different strengths. For example: other things equal, a friend’s claim on my beneficence is arguably weaker than my child’s. If, as I believe, these conceptual distinctions are useful and plausible, they can be used to respond to GCC’s claim that “[t]o lump these varied and detailed professional duties together with the misconceived ‘general duty of beneficence’ and place them all under one principle of 2 The Venus example is Thomas Pogge’s (1999). 3 Beauchamp and Childress 2013 discusses rescue cases in more detail (see pp. 206–209). 7 beneficence is to substitute a slogan for substance.” GCC may be right that there is no “one principle of beneficence” that stands above a duty of general beneficence and duties of specific beneficence. But there does not need to be such a “master” principle of beneficence in order for there to be discrete and more narrowly tailored principles of beneficence. One of these can be a general principle of beneficence (which generates either an ideal or a duty), while others can be more specific, having their basis in special relationships. Of course, not all duties stemming from special relationships will be duties of beneficence. Some, for instance, will simply be duties of fidelity that stem from a promise to do this or that quite specific action. But other duties stemming from special relationships are clearly duties that impose less discriminating demands, demands that require one first to assess what is in another’s interests and then to pursue a course of action that substantially promotes those interests. The demands of parenthood are again a good example here. In these latter cases, I see no conceptual or theoretical impediment to calling these duties what they appear to be: duties of beneficence aimed at specific individuals. 2. SPECIFIC BENEFICENCE AND EQUALITY OF CONCERN I have defended Beauchamp and Childress’s distinction between general and specific beneficence, and I suggested that different duties of specific beneficence have their basis in different special relationships and correlate with claims of differing strengths. (I will say more about what it means in practice to have a claim to beneficence in section 4.) With these concepts and distinctions in hand, we can describe Buchanan’s position on rights to health care in slightly different terms from those he used. In Buchanan’s terms, his approach to justifying a legal right to a decent minimum of health care was pluralistic: it sought to combine (1) “arguments from special (as opposed to universal) rights to health care,” (2) arguments about harm-prevention and 8 prudence, and (3) arguments for enforceable general beneficence (Buchanan 1984, p. 66). I want now to argue that the first set of arguments—arguments from so-called “special rights”—suggest that justice generates at least some duties of specific beneficence. Buchanan gives three examples of what he has in mind when he speaks of “special” rights to health care. First is the right that certain individuals posses by virtue of being disadvantaged by historical injustices. Second is the right acquired when one has sustained unjust harm from specific third-parties, such as pollution harms inflicted by corporations. Third and finally, a strong moral case can be made for special rights to health care for those who have undergone exceptional sacrifices for the good of society as a whole—in particular those whose health has been adversely affected through military service. The most obvious candidates for such compensatory special rights are soldiers wounded in combat. (p. 67) Note here that Buchanan seems to accord special rights only to those soldiers “whose health has been adversely affected through military service.” In response it might be asked: why is special concern for soldiers not warranted by the mere fact that they stand ready to risk life and limb for the good of society? It strikes me that the commitment a solider makes to society does in fact warrant a broader concern for her than Buchanan admits. Accordingly, I believe we should say that the special relationship binding society and soldier grounds a social duty of specific beneficence toward the soldier.4 Moreover, soldiers can assert claims on the beneficence of the society they stand ready to defend. If that is right, then we should expand Buchanan’s pluralistic view so that it can also lean on enforceable duties of specific beneficence that correlate with claims. 4 Note, however, that the precise action required by duties of specific beneficence will depend partly upon background institutions and established expectations. As Dan Hausman has suggested to me, if there were a social norm that soldiers’ families were to use the soldiers’ combat pay to address injuries, then a demand for further public assistance may be unjustified. But such a social norm will itself be justified only if combat pay is set from the beginning at a level high enough to reflect the specific beneficence that society owes to the soldier. 9 Buchanan does not say explicitly whether he thinks a soldier’s special right to health care is a right grounded in justice. But his discussion points in that direction, for he strongly distinguishes between special rights and beneficence, and it is only the latter that he associates with charity and generosity (rather than justice). What, then, shall we say about the less discriminating duty of specific beneficence I have claimed is owed to all soldiers (and not just those who are wounded in combat)? Is it a duty of justice? This of course turns on what justice is, and that is a hard and contentious question. Nevertheless, many theorists accept John Stuart Mill’s view that “Justice implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right” (Mill [1861] 2006, p. 102 [chap. 5, para. 15]). If, therefore, a non-battled-tested soldier does in fact possess a claim on society’s beneficence, then the corresponding social duty is arguably one of justice. To be fair, Mill does say in his very next sentence that “No one has a moral right to our generosity or beneficence, because we are not morally bound to practise those virtues toward any given individual.” But by “beneficence” Mill here means “general beneficence,” and thus even if he is correct it does not follow that there are no rights to what we are now calling specific beneficence. Suppose we agree that each soldier has a justice-based claim to the specific beneficence of his or her larger society or political community. Might there be a further case for concluding that each member of society, whether a solider or not, has a similar claim? Buchanan apparently thought not, citing the “exceptional sacrifice” that only people like soldiers make. This skepticism about “scaling up” specific beneficence is, I suspect, shared by many other bioethicists and political philosophers who prefer to ground enforceable, society-wide obligations in quite different principles of distributive justice. There is, however, one line of argument from contemporary political philosophy that argues for such a scaling-up, and it is one 10 that I find attractive. This line of argument has not, however, been articulated in terms of obligatory specific beneficence toward others. Rather, it has been put in terms of a political community’s obligations of equal concern for members of society. A view along these lines has been separately defended by political philosophers Ronald Dworkin (in his later work) and Richard W. Miller. According to Dworkin, “[e]qual concern is the sovereign virtue of political community,” for “[n]o government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance” (2002, p. 1). Similarly, Miller claims that “Equal concern is the more appropriate standard [of social justice] because it better reflects the moral significance of democratic citizenship. For equal concern . . . expresses the proper valuing of the institutional loyalties on which a well-ordered democracy depends” (2002, p. 298). I will examine the arguments underlying these claims in more detail in the next section. But before I do so, I want to establish the tight conceptual connection between what Dworkin and Miller refer to as concern for others and what I have been calling specific beneficence. Miller makes this connection plain when he explains that the duties of concern he is arguing for are duties to show “special loyalty to [fellow citizens], displayed in special concern for their needs” (2010, p. 43; emphasis added). For Dworkin’s part, things are complicated by the fact that in his early writings, Dworkin often used the phrase “equal concern and respect” to refer to a highly abstract moral standard that virtually all political theorists, including libertarians, expect a just society to meet (see, e.g., Dworkin 1978, p. 180). But in later writings, Dworkin was clear that by equal concern, he no longer intends the abstract and largely formal notions of equal moral status or equal protection under the laws, but rather a more robust moral standard requiring the promotion of individuals’ substantive interests. For example, he writes: 11 Imagine that a family is about to buy a new house and wishes to buy the house with the largest aggregate bedroom space, measured in overall square feet, that it can afford. Does it show equal concern for its members if it buys the house with the largest average bedroom size even though one bedroom, which it knows will be occupied by the youngest child, is miserable dark and insufferably small? (2008, p. 102) Dworkin’s answer to this rhetorical question is clearly “no,” and he suggests that this way of thinking connects up with the proper way to think about social justice. For he asks, “Given the complex and dramatic impact of a political settlement [i.e. a given socio-economic institutional arrangement] on citizens’ individual resources, what choice of political settlement treats citizens with equal concern? What choice would the fair-minded parent of them all make, for example?” (2008, p. 99; emphasis added). Now of course many will object to Dworkin’s analogy between a just political community and a fair-minded parent; I too find the analogy problematic. But for our purposes here, what is relevant is that for Dworkin, the social obligation to display equal concern is akin to a parent’s obligation insofar as it is a substantive obligation to actively promote certain individuals’ interests and good. It is not, therefore, merely the formal ideal of treating like cases alike, for that formal ideal could be satisfied by a bedroom-allocation rule that says “The youngest child, whoever he or she happens to be, shall get whatever bedroom remains after all older members of the family have made their choice.” Suppose, then, that Dworkin’s and Miller’s so-called duties of concern are indeed properly interpreted as duties of specific beneficence toward fellow citizens. We now must ask where those duties come from. What justifies them? 3. JUSTIFYING EQUAL CONCERN Here is Dworkin’s main argument for why a duty of equal concern is at the heart of social justice: 12 We extract people’s money or property through taxes, and we put them in jail or even, in our country, kill them when they do not do what we command. We not only do all this but claim a right to do it: we expect our fellow citizens to treat our collective demands as creating not just threats but moral obligations, the demanding moral obligation to obey our law. No single individual has any such power over other individuals. Our government claims all of it. (2008, p. 95) A legitimate government must treat all those over whom it claims dominion not just with a measure of concern but with equal concern. (p. 97) Dworkin here grounds a political community’s duty to display equal concern toward its members in the coercively enforced commands issued by the community (or by its official agents). He claims that the community’s commands are illegitimate unless they are accompanied by the display of a robust and equal measure of concern for each member. Yet even if Dworkin is correct in this, so far he has stated only a necessary condition of legitimate coercion, not a sufficient condition. After all, it would surely be objectionable for one society to invade and conquer another, even if afterwards it displayed the same degree of positive concern for those it conquered as it displays for its own members. So what further condition gives a political community the right to issue coercively-backed commands in the first place? Dworkin imagines being asked a similar question by a laissez-faire libertarian. In response he says: Of course we can, if that is what the majority of us wish, create a minimalist government with few powers to do anything except maintain a police force and armies and raise only the taxes necessary to those limited powers. But . . . we would therefore have the responsibility of showing how our decision to create a minimal state, when we might have created a government with much greater powers to help our poorer fellow citizens, treats all of us with equal concern. (2008, p. 100) This still seems to beg the question. Dworkin claims that a minimalist government would fail to show adequate concern for its members, but he still does not explain where these robust duties of concern come from in the first place. The welfare state institutions that Dworkin wants to justify are required only if robust duties of concern already exist. But Dworkin has not given us reason 13 to think these duties exist prior to the existence of the robust political relationships that a welfare state introduces. This is a problem that Miller explicitly takes up in his own concern-based approach to social justice. Miller writes: Because of the dependence of political duties of concern for compatriots on the nature of their shared political life, I will concentrate on one special case, the exercise of the functions characteristic of government in modern developed countries. . . . Prior to investigating the moral consequences of this state activity, the modern state’s engagement in such functionings must be justified. . . . One can create a broad enough justification by exploiting a grain of truth in the argument from mutual benefit. In modern circumstances, every compatriot’s rational self-interest supports an extensive set of government tasks, shaping compatriots’ prospects of self-advancement in profoundly important ways. (Miller 2010, pp. 40–41) So whereas Dworkin moves from the idea of robust concern to the justification of more-than- minimal governmental functionings, Miller moves from the idea of more-than-minimal governmental functionings to the requirement of robust concern. And to get the argument off the ground, Miller claims that the more-than-minimal government functionings are initially justified by reference to the rational self-interest of those who will be constrained by the resulting coercively enforced arrangements. As he puts it: Libertarian defenders of capitalism say that they advocate the Nightwatchman State, implying that defense against burglars is the epitome of the state’s legitimate functioning. But this restriction would be the death of modern capitalism. Everyone in a modern capitalist economy has a vital interest in state involvement, often with prolific public funding, in a variety of unnightwatchmanlike functions. (p. 43) Part of what Miller refers to here is what the political scientist Nathan Kelly calls “market- conditioning” institutions (Kelly 2009, p. 18). These include the central bank’s role in setting the key price in the entire economy, the interest rate; the central bank’s role as lender of last resort; the state’s bestowal of limited liability to corporate entities; and government granted monopolies in the form of patents. Very few libertarians argue seriously for abolishing these particular 14 market-conditioning institutions. Yet neither it is plausible to claim that individuals have a natural right to these devices of government. (How plausible is the claim that there’s a natural right to twelve years of market exclusivity for an invented product, after which competitors are free to copy one’s idea without any compensation whatsoever?) Rather, what justifies these governmental functions is that they are immensely effective tools for promoting the common good, conceived of as individuals’ similar yet separate interests in a political stability and economic prosperity. In addition to the major market-conditioning functions of government, Miller highlights further “unnightwatchmanlike” choices that will typically be reflected in the public policy of a prosperous democratic state. For example, there will likely be policies that answer such questions as “Under what conditions is a contract to provide skilled services marred by inadequate information about competence on the part of the buyer?” and “Under what circumstances does someone’s assertion of exclusive control over land or raw materials give rise to a right, and how extensive, permanent and transferable are these rights?” (p. 41). All of these policy issues cited so far involve questions to which it is in the interest of everyone to have settled answers. Yet any answer specific enough for public policy will also be rejected by many. This leads to the move that distinguishes Miller’s argument from Dworkin’s. For when public policy does impose determinate answers on a wide range of policy questions, each citizen inevitably faces what John Rawls termed “strains of commitment” (1971, sect. 29). These are the reasonable and understandable psychological strains that attend living under laws and policies one disagrees with or finds otherwise burdensome. According to Miller, it is these common yet poignant strains—what he called the strains of “institutional loyalty”—that generate further duties of concern in the form of duties to value one another’s “loyalty to the [political] project by 15 showing special loyalty to [fellow participants], displayed in special concern for their needs” (2010, p. 43). Thus, for Miller, while a broad array of coercive policies can be justified by reference to members’ self-interest, further coercive policies—those expressing robust concern— are justified as the way responsible social cooperators acknowledge one another’s mutual loyalty to a demanding and coercively structured political project. I believe that this last argument for a political community’s duties of concern for its members is superior to Dworkin’s, and that it is compelling in its own right. Furthermore, the seeds of a view like this can be found in Beauchamp and Childress’s discussion of how some duties of specific beneficence have their basis in the value of reciprocity. They write, “Reciprocity is the act or practice of making an appropriate and often proportional return” (2001, p. 213). And in a prior edition of Principles, Beauchamp and Childress claimed that “[M]any obligations of beneficence are appropriately justified by implicit arrangements underlying the necessary give-and-take of social life” (2001, p. 174). Of course, we have already seen that Beauchamp and Childress prescind from characterizing duties of specific beneficence as duties of justice, whereas Dworkin and Miller explicitly cast their discussions in those terms. But apart from that difference, Dworkin’s and Miller’s accounts can, I think, be viewed as fleshing out a line of argument that already exists in the bioethics literature but that is not as fully developed there. At this point, it is necessary to address an important question triggered by Miller’s account and by Beauchamp and Childress’s description of reciprocity as the practice of making an “often proportional return.” The question asks whether, by tying duties of concern and specific beneficence to loyal cooperation, a view like Miller’s entails that those who contribute more should receive more than equal concern. After all, Miller’s is an approach on which what 16 one is owed (specific beneficence) is determined by what one does (give loyal and burdensome social cooperation). So shouldn’t more go to those who give more? I want to offer four replies to this important question. The first thing to note is that Miller’s account underscores two features of modern democratic societies, and only the second of these is tied to individuals’ social contributions. These two features again are: (1) the fact that a complex of rules governing social cooperation is coercively enforced by all upon all (this is the feature that Dworkin also highlights); and (2) the fact that life-long, coercively structured social cooperation inevitably brings poignant strains of commitment in its wake. The first feature focuses on the ways in which fellow citizens shape each other’s lives and prospects by supporting coercive laws and policies. A reasonable claim here is that in helping to coercively structure another’s life, one shows full respect for him only if coercion is accompanied by positive concern for how his life goes. Thus even if the premise referring to strains of commitment were removed, there would still be some basis for requiring specific beneficence toward those whose lives one helps to shape and structure. Second, when we turn to the distinctive element of Miller’s account that is tied to cooperation and contribution—the element concerning institutional loyalty and strains of commitment—one must be careful not to draw arbitrary distinctions between individuals’ levels of contribution. For example, the account is decidedly not equivalent to an economistic approach that assesses social productivity by looking at wages as the quantifiable measure of individuals’ economic contribution.5 That sort of approach ignores the pervasive reach of market- conditioning policies and the corresponding ways in which political stability and economic prosperity depend upon coercion, compliance, and cooperation at virtually all times and across 5 For a recent defense of such a view, see Mankiw 2009. For cogent critique, see Sen 1985, Schweickart 2002, and Freeman 2011. 17 virtually all spheres of life. It is arbitrary to single out just one sphere—market employment—as revealing one’s total social contribution. Yet once one seeks to take account of all relevant spheres in which individuals’ compliance and cooperation contribute to a well-functioning democratic society, it becomes difficult to claim that any one person’s overall contribution is greater than any other’s. For example, those who earn much less than others often face distinct strains of commitment just on that account. Further, even when it does seem clear that certain people contribute more than certain others, a third consideration dulls that observation’s moral force. For in most spheres of social life, one’s ability to contribute is profoundly affected by the circumstances one finds oneself in, and the circumstances one finds oneself in often reflect historical injustice. This observation is particularly relevant for prominent cases involving those who violate rather than comply with coercively imposed laws and those who occupy prominent and important social and economic roles. If, for example, past discrimination, dispossession, or social marginalization affects one’s abilities and willingness to participate in the morally important give-and-take of social and economic life, then it would be wrong (1) to hold the effects of that injustice against those who were adversely affected by it and (2) to praise the inordinate contributions of who were helped by it. If poverty begets disaffection (as it does) and if privilege begets social and economic capital (as it does), then a morally responsible political community will seek to calibrate the strength of its specific beneficence by attending both to social contribution and to potentially unjust background factors that render individuals differentially able to contribute in the first place. This conclusion suggests that a principle of specific beneficence must be combined with other principles of justice so that individuals are not held responsible for failing to make contributions when that failure is influenced by prior or ongoing injustice. These considerations 18 pull the account back in the direction of equal concern, for if past injustice shapes individuals’ contributions, then holding this against the victims of injustice is an unjust form of double jeopardy. The fourth and final response to the claim that unequal contributions call for unequal concern acknowledges that some human beings, in particular those with profound cognitive disabilities, are mostly unable to contribute to society even under the most favorable conditions. But to acknowledge this is not yet to concede that such individuals are owed nothing under justice. The equal concern account, like Buchanan’s own account of enforced general beneficence, purports to describe just one central source of enforceable societal obligation. As Buchanan stressed, there is good reason to seek to combine diverse sources of obligation to yield wider ranging demands. Whether other sources are available is a further question for moral theory that I cannot take up here. But it is nevertheless a mistake to reject a source of social obligation simply because it alone cannot achieve the full coverage that one might reasonably want. I conclude, then, that there is a good case to be made for the egalitarian aspect of the equal concern account of societal duties of specific beneficence. My goal in this section has been to explain how Dworkin’s and Miller’s views connect up with the idea of specific beneficence, and how one might go about “scaling up” duties of specific beneficence to the societal level. For my part, when I reflect upon the nature of the positive, health-related duties I intuitively believe I have to fellow citizens, they do strike me as duties of beneficence, duties to show active concern for their interests and good. But since there are people around the world who are much worse off than most of my fellow citizens, the duties I intuitively feel I have to my compatriots must be ones of specific beneficence that, if genuine, justify focusing at least some efforts at home rather 19 than abroad. This in turn calls for an explanation of why specific duties like this should exist in the first place. The line of argument I have set out grounds these duties in the ways in which I help to coercively shape the lives of my compatriots, and the ways in which I simultaneously benefit from their constrained cooperation and compliance. 4. FROM SPECIFIC BENEFICENCE TO HEALTH CARE POLICY When it comes to justifying a legal right to a decent minimum of health care, the equal concern approach offers distinct advantages over Buchanan’s general beneficence argument. Buchanan recognized that some might accept his argument’s theoretical foundation while still rejecting his domestically-focused conclusion. For if the argument is largely predicated upon an enforceable duty of general beneficence, why focus on “the needy who dwell within the borders of a particular nation-state” (1984, p. 76)? In response, Buchanan claimed that there are no principled reasons to focus at home rather than abroad. Rather, there are “pragmatic” reasons that justify “a practical concession to the difficulties of being beneficent in an imperfect world” (p. 76). By contrast, if within-border obligations are primarily underwritten by duties of specific beneficence, as the equal concern approach has it, then one would not have to rely so heavily on “pragmatic” reasons to give some deference to national needs. This would in turn strengthen the argument for a domestic decent minimum of health care. The existence of specific duties of beneficence toward compatriots would also strengthen a recent argument for U.S. health reform made by David DeGrazia. DeGrazia claims that “Americans care deeply about achieving universal coverage, sensibly containing costs, protecting patient freedom, and preserving high-quality care.” He adds that “There is more support for these goals, surely, than for any particular theory of justice” (2008, p. 32). DeGrazia 20 concludes that it is unwise to invoke theories of justice in support of health reform; one should instead simply invoke the four items on DeGrazia’s list of health care “goals.” But then what is to be said when one discovers—as one surely will—disagreement over DeGrazia’s first health care goal, that of achieving universal coverage? Here is DeGrazia’s answer: “Not to consider universal coverage a high priority verges on the misanthropic” (p. 32). Another way to say this, of course, is that not to consider universal coverage a high priority is to lack minimal beneficence. But now consider the (admittedly quite unrealistic) scenario in which a misanthrope is successfully shamed by DeGrazia’s charge of misanthropy and now wants to focus her newfound beneficence on more dire needs abroad. What can DeGrazia say to get this reformed person on board with the four U.S. health care goals? One thing he could say, if he accepts societal duties of specific beneficence, is that to neglect serious but less dire needs at home would amount to flouting distinctive duties to compatriots. Suppose I am right that the equal concern account successfully establishes societal duties of specific beneficence. And suppose that, given my initial assumption of the importance of health for well-being and opportunities, there is a strong presumption in favor of providing a decent minimum of health care to all. What then should the decent minimum include? Buchanan’s answer is that this question cannot be specified in detail prior to subjecting it to “some fair procedure for reaching a social decision” (1984, p. 78). That is roughly my answer too, but Buchanan claims that only his view “can warmly welcome the lack of a principled specification.” The equal concern view must, he suggests, “accept it begrudgingly as an embarrassing theoretical lacuna” (pp. 77–78). This is because on Buchanan’s view, citizens’ duties of beneficence are not duties of justice that correlate with rights, but are instead duties of charity that “are imperfect duties: by their very nature they are not precisely delineated” (p. 77). 21 Is Buchanan right that the demands of equal concern, if they are demands of justice, must be precisely specifiable? Earlier I quoted Mill who conceptually tied duties of justice to individuals’ correlative claims. If the connection with claims is a hallmark of duties of justice, then social duties of specific beneficence fit the bill, for on the equal concern account each individual does have a strong claim on the beneficence of the political community as a whole. I do however admit that there will be a good deal of indeterminacy when moving from foundational demands of equal concern to their practical implementation. I see no way around that. But this is not the theoretical embarrassment Buchanan suggests it is. To use an illustrative example of Robert Audi’s, justice in a democracy quite obviously demands periodic free elections, but justice is clearly not specific about the maximal time interval between them (p. 152). Given that justice must tolerate at least some vagueness, we need an argument before we should conclude that the equal concern view cannot follow Buchanan’s own tack and rely upon a conscientious social dialogue to issue in more specific conclusions. Still, perhaps one way to make at least some progress translating the equal concern rationale for specific beneficence into policy is to imagine free market arrangements and then to ask whether they strike us as adequately expressing the beneficence required by justice. If not, we can ask what change would remove the deficiency. Something akin to this procedure has been employed by theorists as diverse as Dworkin (1993) and the conservative legal theorist Charles Fried (1978). Dworkin and Fried each agree that free market arrangements might need correction with respect to the potentially unjust distribution of external resources (such as income and wealth). To address this, each asks his reader to assume that the distribution of external resources is perfectly just according to the reader’s own criterion of what justice 22 requires here. Dworkin and Fried then ask: would it then be just to simply let individuals choose their preferred level of insurance from the options that emerge in a free market for health insurance? Dworkin’s answer is that such an arrangement fails to show adequate concern for those who will be denied affordable insurance because of health risks they are either born with or acquire through no fault of their own (2002, pp. 342–343; 2008, p. 114). Fried foresaw such an objection, and wrote: there is nothing in the [free market] insurance proposal which assumes that expensive measures will not be available in the unlikely case that we need them: if the occasion of need is really very unlikely, then one ought to be able to purchase a very high level of protection for a small premium. If, on the other hand, the “need” is very likely to occur and very likely to be expensive—imagine some elaborate way to retard the effects of normal aging—then why should one complain if vast social resources are not made available for this purpose? (1978, p. 128) The problem here is that Fried ducks the question at issue. The question is not whether social resources should be made available for a Peter Pan drug that keeps people young, but rather whether those who already have, say, cancer or diabetes—those whose risk is 100 percent— should face higher (and often prohibitively high) insurance prices just on that account. This question cannot be answered by noting, plausibly, that public subsidies for the Peter Pan drug would not be required by any reasonable approach to social beneficence. Rather, it seems fairly clear that a political community does not show even minimal beneficence toward a cancer victim if it justifies not helping him by citing an alleged analogy between him and the Peter Pan drug- seeker. This supports the conclusion that free markets for insurance, even when corrected for unfair distributions of income, do not yet display due beneficence toward those who face high and costly health risks through no fault of their own. Some policy instruments—e.g. guaranteed issue, community rating, insurance mandates, and subsidies—will be required to ensure that 23 those who need health care the most are not turned away by insurance companies’ prices or policies.6 This line of argument connects the demands of specific beneficence to what Paul Menzel has recently called a Just Sharing Principle (JSP). A JSP requires at least some robust sharing of “the financial burdens of illness.” On Menzel’s version of the JSP, it requires that “[t]he financial burdens of medical misfortunes ought to be shared equally by the well and the ill alike, unless individuals can be reasonably expected to control these misfortunes by their own choices” (2012, p. 584). Menzel grounds his JSP in a more fundamental moral principle that he calls Equal Opportunity for Welfare (EOW), which says: “People should not be worse off [in terms of welfare] than others through no fault or voluntary choice of their own.” EOW is thus a luck egalitarian principle. There are many versions of luck egalitarianism, but their common thread is the claim that inequalities are pro tanto unjust, unless they can be shown to result from the responsible choices of individuals. (Pro tanto here indicates that the injustice can be outweighed by other moral factors; for example, a policy that widens unchosen inequalities may nevertheless be all-things-considered just if the increase in inequality is morally outweighed by significant improvements in the well-being of the worst off.) Luck egalitarianism, therefore, sees (pro tanto) injustice in inequalities that result from “bad brute luck,” but not in inequalities that can be traced to individuals’ responsible choices or gambles. This approach stands in contrast to the beneficence-based view I have been exploring. For example, while it may be clear that proper beneficence does not require the provision of a Peter Pan drug (especially when there are so many other pressing needs in the population), it is not as obvious that beneficence can justly be withheld whenever individuals are responsible for their own plight. Indeed, a leading luck 6 These are central coverage-related policy instruments in the Patient Protection and Affordable Care Act of 2010, but they are certainly not the only way to achieve affordable universal coverage. 24 egalitarian, Shlomi Segall, agrees that luck egalitarian principles like EOW can be unduly harsh on those who are nevertheless at fault for their serious health needs. Segall concludes that principles like EOW must therefore be supplemented by “a prior duty to meet basic needs, including medical needs” (2009, p. 75). Segall’s social duty to meet basic needs has all the hallmarks of a duty of beneficence, and his reliance on it shows that luck egalitarianism is not the only basis available to underwrite a Just Sharing Principle. Distinct beneficence-based moral principles can play that role as well. In fact, concerns about the “harshness” of luck egalitarianism suggest that beneficence-based principles might be better suited to play that role than is a thoroughly choice-sensitive principle like Menzel’s EOW.7 A beneficence-based approach to social obligation can also be used to criticize Menzel’s JSP on a different score. As I noted, Menzel’s JSP calls for equal sharing of the financial burdens of illness “by the well and the ill alike.” But why call on the well, rather than on the well-to-do, to share burdens with the ill? Suppose Steve Jobs had lacked insurance when he was very sick. In that case, should a healthy 35 year old making $15,000, $35,000, or even $55,000 per year be called upon to share the burdens of Steve Jobs’ illness? That is seemingly what would be required by a principle enjoining equal sharing between the well and the ill. Yet it seems more plausible, and more consistent with the demands of beneficence, to require sharing between the rich and the ill. We should indeed care about what happens to Steve Jobs—he has a claim on our beneficence too—but we must also be sensitive to the effects that a Just Sharing Principle would have on the interests of those who would be forced to help him. When the person needing help is rich enough to provide all available care for himself, it is unclear why any sharing at all is called 7 I lack the space to discuss the difficult question of when individuals’ responsibility for their own ill health lessens or eliminates others’ duties of beneficence toward them. For further discussion of the so- called harshness objection to luck egalitarianism, see Anderson 1999 and Voigt 2007. 25 for.8 Likewise, when those who are sick are also very poorly off in terms of income, it seems reasonable to finance social beneficence through progressive taxation (which falls more heavily on the rich) rather than through a mechanism that targets the resources of healthy people, regardless of their income. Finally, let me stress that even if duties of specific beneficence do in fact ground social rights to health care, it does not follow that doctors have duties of specific beneficence toward their patients. As I have been understanding them, duties of beneficence are duties to promote another’s interests or good or well-being, broadly construed. But physicians’ duties should arguably be construed more narrowly, as duties to promote patients’ health, rather than patients’ well-being. To use an example I owe to Daniel Hausman, my physician has a stronger duty to help me gain access to a $50 tetanus shot than she does to help me gain access to $50 in cash. This is so even if I strongly and quite reasonably prefer the cash instead. So it must be stressed that my argument seeks to account for the fundamental duties of social justice that call for health-promoting social institutions. These fundamental duties can be duties of (specific) beneficence even if there are reasons to construe the downstream duties of physicians more narrowly. In this section I have sought to tease out some policy implications of the beneficence- based view that emerged from sections 2 and 3. But I have also openly admitted that there is unavoidable vagueness both in the strength of morally required specific beneficence and in the proper manner of its display. Buchanan suggested that vagueness along these dimensions fits better with an approach that views the relevant moral principles as principles of charity rather than principles of justice. I do not agree. Sometimes the demands of justice are just as vague as 8 Since Menzel’s discussion is pitched at the level of moral principle, I am here ignoring strategic considerations such as those connected to the slogan, “A program for the poor is a poor program.” 26 the demands of charity, as was illustrated by Audi’s example of the interval between free democratic elections. Thus while I do believe that individuals have assertable moral claims to societal beneficence, I do not believe that individuals can assert moral claims to specific amounts of health-related resources. Nevertheless, some Just Sharing Principles are more consonant with the equal concern account of specific beneficence than others, and I have suggested that a reasonable version of such a principle would justify public policy to shape health insurance markets and would call more upon the wealthy than on the healthy to share others’ financial burdens of illness. 5. CONCLUSION In this paper I have drawn on a distinction from bioethics and on an approach to social obligation from political philosophy to support the conclusion that political communities are under justice-based obligations of specific beneficence toward their members. Since I am forced to concede that these obligations are not as precisely specifiable as one would like, I sought (in section 4) to tease out some lessons for health policy that nevertheless strike me as consonant with the account I have set out. In particular, I agreed with Dworkin and Segall that duties of beneficence (Dworkin calls them duties of concern, Segall cites “basic needs”) can underwrite a Just Sharing Principle justifying at least some government involvement in health insurance markets. There are, however, many options in between a regime that only slightly improves upon the free market and a regime that is prepared to provide Fried’s Peter Pan drug to anyone that wants it. Should I be embarrassed that I cannot say which regime in between these is most just? All I can say is that I have been as specific as I can see how to be at present. At any rate, I 27 believe it is useful to sketch, even in a rudimentary way, a framework for justice in health care that provides an alternative (or supplement) to views grounded in luck egalitarianism (Menzel, Segall), general beneficence (Buchanan), or the simple avoidance of misanthropy (DeGrazia). One need not be a misanthrope to ask why one must take an especially active interest in the interests of certain others. The equal concern approach to justice in health care provides an answer, and it is an answer I think worth exploring further. ACKNOWLEDGMENTS For comments and discussion on material included here, I would like to thank Dan Hausman, Gordon Hull, Win-chiat Lee, John C. Moskop, and participants at the 2013 Junior Scholars in Bioethics Workshop at Wake Forest University. REFERENCES Anderson, Elizabeth S. 1999. What Is the Point of Equality? Ethics 109 (2): 287–337. Audi, Robert. 2004. The Good in the Right: A Theory of Intuition and Intrinsic Value. Princeton, NJ: Princeton University Press. Beauchamp, Tom L., and James F. Childress. 2001. Principles of Biomedical Ethics, 5th ed. Oxford: Oxford University Press. ———. 2013. Principles of Biomedical Ethics, 7th ed. Oxford: Oxford University Press. Broome, John. 2002. Measuring the Burden of Disease by Aggregating Well-Being. In Summary Measures of Population Health: Concepts, Ethics, Measurement and Applications, edited by Christopher J. L. Murray, Joshua A. Salomon, Colin D. Mathers, and Alan D. Lopez, 91–113. Geneva: World Health Organization. 28 Buchanan, Allen E. 1984. The Right to a Decent Minimum of Health Care. Philosophy and Public Affairs 13 (1): 55–78. Daniels, Norman. 1981. Health Care Needs and Distributive Justice. Philosophy and Public Affairs 10 (2): 146–79. DeGrazia, David. 2003. Common Morality, Coherence, and the Principles of Biomedical Ethics. Kennedy Institute of Ethics Journal 13 (3): 219–30. ———. 2008. Single Payer Meets Managed Competition: The Case for Public Funding and Private Delivery. Hastings Center Report 38 (1): 23-33. Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge, MA: Harvard University Press. ———. 1993. Justice in the Distribution of Health Care. McGill Law Journal 38 (4): 883–98. ———. 2002. Sovereign Virtue. Cambridge, MA: Harvard University Press. ———. 2008. Is Democracy Possible Here? Princeton, NJ: Princeton University Press. Freeman, Samuel. 2011. Capitalism in the Classical and High Liberal Traditions. Social Philosophy and Policy 28 (2): 19–55. Fried, Charles. 1978. Right and Wrong. Cambridge, MA: Harvard University Press. Gert, Bernard, Charles M. Culver, and Danner K. Clouser. 2006. Bioethics: A Systematic Approach. Oxford: Oxford University Press. Kelly, Nathan J. 2009. The Politics of Income Inequality in the United States. Cambridge: Cambridge University Press. Mankiw, N. Gregory. 2010. Spreading the Wealth Around: Reflections on Joe the Plumber. Eastern Economic Journal 36: 285–98. Menzel, Paul T. 2011. The Cultural Moral Right to a Basic Minimum of Accessible Health Care. Kennedy Institute of Ethics Journal 21 (1): 79–119. 29 ———. 2012. Justice and Fairness: A Critical Element in US Health System Reform. The Journal of Law, Medicine & Ethics 40 (3): 582-597. Mill, John Stuart. (1861) 2006. Utilitarianism. In The Blackwell Guide to Mill’s Utilitarianism, edited by Henry R. West, 61–113. Oxford: Blackwell Publishing. Miller, Richard W. 2002. Too Much Inequality. Social Philosophy and Policy 19 (1): 275–313. ———. 2010. Globalizing Justice: The Ethics of Poverty and Power. Oxford: Oxford University Press. Pogge, Thomas. 1999. A Global Resources Dividend. In Ethics of Consumption: The Good Life, Ethics and Global Stewardship, edited by David Crocker and Toby Linden, 501–30. Totowa, NJ: Rowman and Littlefield. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Ross, W. D. 1930. The Right and the Good. Oxford: Oxford University Press. Segall, Shlomi. 2009. Health, Luck, and Justice. Princeton, NJ: Princeton University Press. Sen, Amartya. 1980. Equality of What? In The Tanner Lectures on Human Values, vol. 1, edited by Sterling M. McMurrin, 195–220. Cambridge: Cambridge University Press. ———. 1985. The Moral Standing of the Market. Social Philosophy and Policy 2 (2): 1–19. Schweickart, David. 2002. After Capitalism. Plymouth, UK: Rowman & Littlefield. Voigt, Kristin. 2007. The Harshness Objection: Is Luck Egalitarianism Too Harsh on the Victims of Option Luck? Ethical Theory and Moral Practice 10 (4): 389–407. 
work_bva57ur6cjhlbpbbymvzbzoj5m	----	Microsoft Word - AJCD-social justice.doc Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. A UNIVERSITY CAREER SERVICE AND SOCIAL JUSTICE PETER McILVEEN, BRADLEY EVERTON, & JOHN CLARKE University of Southern Queensland January 2005 For submission to: Australian Journal of Career Development Special Edition: Career Development and Higher Education in Australia Guest Editor: Dr Anna Lichtenberg Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. ABSTRACT This paper describes the social justice activities facilitated by a university careers service. The paper includes a discussion on the relationship between social justice and career development in higher education. Working examples of the activities provided by the career service focus upon the delivery of career-related services to students who are represented by the major equity groups identified within the Australian higher education sector. The importance of theoretically informed practice and collaboration between campus agencies is emphasised as a means of achieving social justice outcomes. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. Within the career development literature, social justice has been described as the actions that advance society and advocate for the equal access to resources for disempowered people (O’Brien, 2001). Career development and social justice are not historical strangers. Hartung and Blustein (2002) and O’Brien (2001) described how one of the founders of the discipline of career development, Frank Parsons, was committed to connecting career decision-making and social justice in his work in the early part of the 20th century. The connection has not been ignored - major contemporary texts on career development, counselling and education routinely make reference to the needs of ‘special groups’ (e.g., Herr, Cramer & Niles, 2004). Despite the clear impact that career development can have on influencing social mobility and change, Hartung and Blustein (2002) asserted that the discipline of career development was in need of a new paradigm that clearly recognised the unequal distribution of societal resources. In order to fully account for social justice issues, they suggested that counsellors should expand their practices beyond the focus of the individual. In this vein, Hansen (2003) and Herr (2003) argued that (in the American context) career counselling practice should interact with public policy. Careers industry standards vary throughout the world; however, most professional organisations make reference to the needs of all persons and emphasise the needs of those who are disadvantaged. For example, the International Association for Educational and Vocational Guidance (IAEVG) declared that: • Each person - regardless of gender, education, race, religion, age or occupational status - should have free and easy access to educational and vocational guidance so that their individual capabilities and skills can be identified and developed to enable them to undertake adequate education, vocational training and employment, to adapt to changing individual and Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. social life situations and to participate fully in the social and economic life of their community. • Special target groups, eg, persons with disabilities and social disadvantages, should be provided with career counselling that uses appropriate methods and counselling that take into account their particular needs and communication requirement (IAEVG, 2001). The United Nations Educational, Scientific and Cultural Organisation (UNESCO) (1998) produced a handbook on career counselling specific to higher education. In that handbook, UNESCO declares a number of assumptions, including: • People have the ability and opportunity to make career choices for their lives. The amount of freedom in choices is partially dependent upon the social, economic, and cultural context of individuals. • Opportunities and choices should be available for all people, regardless of sex, socio-economic class, religion, disability, sexual orientation, age, or cultural background (UNESCO, 1998, p. 4). These assumptions were established as key attitudes to be taken up by careers practitioners operating within the higher education sector. Within the Australian context, Hughes (1995) was critical of career development practices within the school sector and suggested that there was a risk of maintaining social structures with inherent features of inequalities. Patton and McMahon (1997, 1999) invigorated career development theory and practice within the Australian social justice and equity context. Their Systems Theory Framework (STF) has emphasised a confluence of social, economic and environmental factors that transcends the intrapsychic factors that have been the traditional foci of major theories and practices of career development. For example, Collett (1997) has used Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. the STF to explicate the problems of rurality and its impact upon the education of school children; and Sarra (1997) likewise for indigenous persons; and Taylor (1997) for the issue of socio-economic status and participation in higher education. As a result of the STF’s broader conceptualisation of career development, variables that induce or potentiate problems associated with social justice are readily accounted. AUSTRALIAN HIGHER EDUCATION In describing a set of preferred principles for a higher education system in Australia, the Commonwealth Minister for Education stated that: There must be equality of opportunity in higher education to allow individuals to fulfil their potential, regardless of their personal circumstances and backgrounds. There should be no systemic barriers to participation. There should be provision for the varying needs of students from different backgrounds (Nelson, 2002, p.2). Successive Commonwealth Governments have variously identified equity groups that represent individuals who fall into categories of social disadvantage. These equity- groups include: indigenous students; women studying in non-traditional areas; students with a disability; students from a rural or isolated region; students from language backgrounds other than English; and students from low socio-economic status backgrounds (Dawkins, 1990). The equity groups have been broadly studied and reported upon with respect to individuals’ entry into, and progress through the higher education system in Australia. Fortunately there has been some progress in improving access, retention, and progress for many groups (e.g., Abbott-Chapman, Hughes, & Wyld, 1991; Australian Education Council, 1991; Department of Education, Training & Youth Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. Affairs, 1999a; National Board of Employment, Education and Training, 1994; Nelson, 2002; Senate Standing Committee on Employment, Education and Training, 1990; Williams, Long, Carpenter & Hayden, 1993). The Commonwealth Government has required universities to respond to the needs of these equity groups through the development and implementation of Equity Plans and Indigenous Education Strategies (DETYA, 1999b; 1999c). Furthermore, the Government has monitored institutional performance as expressed through the performance of students in equity groups relative to the student population as a whole (Martin, 1994). UNIVERSITY OF SOUTHERN QUEENSLAND (USQ) USQ is a multi-campus, non-elite, community-focused regional university, which developed from a background as a College of Advanced Education with a heavy emphasis on employing flexible modes of study. With this background it is not surprising that USQ’s students come from a wide diversity of social, cultural and location backgrounds which include a high proportion of 'first generation' learners (i.e., students who are the first in their family to attend university), 'second chance' learners (i.e., students who come to university study for the first time as adults) and students from identified equity groups – particularly low SES students, students from rural and isolated areas and indigenous students. Learning and teaching represents the USQ’s core function. In this context, social justice at USQ is most clearly embodied in the provision of opportunities for access with success to relevant career paths for a diverse student constituency. All of USQ's social justice strategies emanate from this core theme. The development of linkages and networks with other educational providers serves as a basis for outreach, taster and articulation programs; access and transition strategies include recognition of Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. prior learning, scholarships programs, orientation and first-year programs; strategies promoting retention and progression centre on inclusive curriculum and assessment, and a wide range of student support services; and the successful transition into employment requires careers education that begins with the University's first contact with the student. Early exposure to careers education is seen as a key social justice strategy that operates at a number of levels. It is well established that students with a stronger career focus are more likely to persist in their studies - hence early careers advice has been used for many years in US higher education as a basis persistence strategy (Tinto, 1998). This effect is, in part, due to ensuring that students are pursuing a study route that is right for them – improving persistence through improving the fit between the student and the course of study. However, other factors also come into play. For example, by positioning students to gain a greater understanding of the value of the qualification which they are working towards, early careers education has been found to be particularly valuable for first generation and second chance learners who may otherwise be considered at high risk of dropping out, in part due to a tendency to doubt the value of a university education and/or their capacity to achieve it. Factors such as choosing the optimal course program are also critical for these groups. Careers education is also critical to improving the knowledge and confidence (and hence persistence) of particular disadvantaged groups who are prone to discrimination or particular hardship in the workforce, such as indigenous students, students from non-English speaking backgrounds and students with disabilities. Overall, careers education empowers disadvantaged students through improving their knowledge base and confidence, and ensuring that they are maximally positioned to know what career they want and how they need to go about securing it. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. By providing strategies that encourage a diverse range of students to persist and progress successfully in their studies, and through to employment, careers education provides a major plank in USQ's overall social justice strategy. These strategies are of particular relevance to high-risk groups, such as first generation learners, second chance learners and learners from identified equity groups. USQ CAREERS EMPLOYMENT & WELFARE USQ Careers Employment & Welfare (the Service) is a unit within the university’s Student Services. The Service provides individual career counselling, career education, campus employment services, financial services, and accommodation information. The two other units within Student Services are: Counselling & Health, which provides personal counselling, nursing, medical, and academic skills support; and International Student Support, which provides additional support for international students, such as arrival and departure, visa processing, cross-cultural counselling and education. Organisational change The provision of welfare support, however, has not been a traditional component of careers and employment services. The welfare support provided by Student Services focussed mainly upon providing accommodation, financial support and crisis counselling support, and was an odd bedfellow for the careers and employment activities. The integration of Welfare was crucial for the overall operation of the Service. Over the past three years the Service has reviewed its core mission and has transmuted the welfare support. Welfare is now integral to the mission of the overall Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. career development goals of the Service, and represents a set of service activities that have influence the careers and employment elements of the Service. This organisational revision was partly guided by application of the STF (Patton and McMahon, 1997, 1999), which provided the theoretical validation and conceptualisation of the nexus between social and economic disadvantage and the career development services within the university context. A previous position of Welfare Counsellor provided the services of accommodation support, financial support and crisis counselling. Through a process of consultation and realignment of service responsibilities, these activities were changed considerably. The position was retitled from Welfare Counsellor to Psychologist, Careers and Equity or Social Worker, Careers and Equity (depending upon the profession of the incumbent). The use of Careers and Equity was specifically included to signal the nexus between career development and the provision of services to alleviate disadvantage. The position description mandates the incumbent to provide counselling and educational programs that facilitate students’ progress in university studies and overcomes career barriers related to socio-economic background. The bulk of accommodation activities were reduced and devolved to the Administrative Officer. Crisis counselling was retained, but reduced in the number of allocated hours, and became a backup support for the other units of Student Services. Financial support consisted of the assessment of students’ needs and the provision of short-term loans. This activity was retained, but modified. The assessment process was changed to include more emphasis upon the relationship of a loan to a particular student’s career and educational plans. This required a more comprehensive analysis of the presenting problem and included psychosocial assessment with respect to Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. career, studies and their relationship to financial competence and hardship. The position also took on a significant role in the assessment and management of scholarships, which are discussed later in this paper. Providing support for casual employment was added into the position description. This entailed an educational perspective through which casual employment underpinned the acquisition of skills for students’ ultimate career and employment plans after university. Furthermore, responsibility for the provision of career education programs to students from the major equity groups was included in the position description. Moreover, these career education activities were to be integrated with the work of the Psychologist, Careers and Industry, the position primarily responsible for the bulk of work relating to career counselling and education. INTEGRATED SOCIAL JUSTICE ACTIVITIES What follows is a description of the service activities specific to the social justice agenda of the Service. The ethos, development and implementation of these activities were guided by the STF and the aims and principles of the IAEVG and UNESCO. Essentially, the Service is committed to the notion that university career services are powerful vehicles for social justice ideals and objectives (O’Brien, 2001). Rural school children and parents USQ is a major provider of higher education to regional Australians. Rural students’ transition into and through higher education is a significant issue with respect to failure and retention. The Service developed a career education program that has engaged rural high school students in an intensive, experiential process in which they Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. are immersed in university (McIlveen, Ford & Everton, in press). The residential experience included educational sessions on career exploration, the actual process of being a student at university (e.g., attending lectures, renting away from home), and the social experiences related to living in a city. The Service has also maintained a program of visiting rural schools within the Darling Downs region. These visits include career education sessions with senior school children during the day and with parents at night. The visits are specifically designed for first-generation families, who have not been exposed to higher education. Indigenous school children The University’s Kumbari Ngurpai Lag Higher Education Centre provides comprehensive academic support for indigenous students. Part of its brief involves the provision of preparatory courses to students. The Service collaborates with the Kumbari Ngurpai Lag in providing a career education workshop to high school children who are brought to campus to discover university (similar to the program for rural students mentioned previously). Students with disability The Service conducted an employment forum for university students with a disability. The forum was founded upon the notion that the employment-related knowledge and self-confidence of students with a disability could be enhanced by linking students, with one another, employers, employment agencies, State and Commonwealth Government agencies, and with key staff of the university’s careers service. The forum allowed for intensive networking and contained presentations on specific skills Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. and knowledge required for entry (and re-entry) into the workforce (e.g., disclosure of disability). Evaluation of the forum indicated its strengths in terms of content and process (McIlveen, Cameron, McLachlan & Gunn, in press). The Counselling and Health unit of Student Services, in collaboration with the Regional Disability Liaison Officer stationed at USQ, has established the Tertiary Taster Program for high school students with a disability. The Service contributes a career education seminar to this residential program. The students learn about their career options and are guided in selecting tertiary education courses. Females in non-traditional disciplines The university operates a successful program for high school girls that aims to immerse them in the career and educational possibilities of mathematics, science and technologies. The Service collaborates with this program and provides a career education seminar that focuses upon expanding the girls’ view of their career potential and futures. Gender issues are also sensitively considered within the scope of individual career counselling for women returning to the workforce or attempting to realign their career. Financial assistance and scholarships Students in general require considerable financial support and assistance in finding stable and manageable casual employment (Long & Hayden, 2001). To this end the Service manages a loan scheme that provides small, short-term, interest-free loans to student on behalf of the university, for the purchase of educational materials or emergency items (e.g., medicine). The Psychologist, Careers and Equity, administers these loans in conjunction with a review panel, consisting of the Service Manager and Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. the Manager of the Counselling and Health unit of Student Services. The assessment process for a loan requires standardized financial information and a demonstrated capacity to repay the loan. Moreover, the assessment interview takes a holistic view of a person’s circumstances, similar to the STF model, in order to determine the relevance of the financial support in context of the student’s overall career and educational status. The Psychologist is also responsible for guiding the student’s who take a loan on the process of better financial management, through individual and group-based education, and on securing part-time or casual employment for future needs. The Service manages eight undergraduate scholarships: the Commonwealth Learning Scholarships (Commonwealth Education Cost Scholarship and Commonwealth Accommodation Scholarship); Chancellor’s Scholarship; School- leaver Scholarship; Non-School Leaver Scholarship; Indigenous Student Scholarship; Distance Education Scholarship; and the Robin Yong Scholarship. The majority of these scholarships have financial hardship, personal hardship, or membership of an equity group as selection criteria. The assessment process is conducted by a panel, which is convened by the Manager of the Service. The Psychologist, Careers and Equity, takes a lead role in providing an expert opinion on the applicants’ situation as it relates to their needs and career and educational status. Tertiary Preparation Program USQ has been a leader in the provision of preparatory education for students who are unable to enter university via the standard pathway of high school and tertiary entrance score. The University’s Tertiary Preparation Program (TPP) has demonstrated its efficacy in properly preparing students for undergraduate studies Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. (Clarke, Bull & Clarke, 2004a, 2004b). An important feature of the TPP is a career educational module through which the individual studying the course completes a career assessment and develops educational pathways for their career success. This assignment work is completed under the instruction of the TPP Career Counsellor. The Service and the academic unit that offers TPP collaboratively manage the position of TPP Career Counsellor. Community career education Career education is not widely available in the regional communities of the University. The Service provides free career education seminars in collaborative arrangement with the University’s marketing and public relations unit. The content of the public seminars focuses upon the nature of university life, career information and assessment, and how to enter university. Although supported by the marketing department, the career education work is provided as a professional community service and without bias toward USQ. These seminars are focussed primarily upon non-school leavers and potential first-generation students who would not ordinarily consider higher education an option for their career. To support its work in assisting individuals who were unfamiliar with processes and occasional abstruse discourse of universities, the Service published a community education booklet, the Family Guide to USQ (Ford & McIlveen, 2003). This product was firmly directed at the parents of first-generation students. Its was produced through the support of key stakeholders (e.g., rural parents associations) that were able to specify which elements of higher education were in need of clarification for the new-comer. The booklet’s content ranges widely; from explaining the terminology of university, to possible career outcomes for particular programs, to the Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. pragmatics of renting and paying for textbooks. This Guide complements other supportive information available on-line and in print. Committees and organisational communication The Service has embarked on a strategy of internal liaison and consultation in order to assure its goals of providing career services to students from disadvantaged backgrounds. This is an ongoing activity that requires considerable attention within a dynamic organisation replete with competing and evolving priorities. The Manager of the Service sits on the Vice-Chancellor’s Committee on Student Support and Equity. This committee provides the organisational forum through which the needs of disadvantaged students can be presented and through which relevant policy or recommendations can be developed. This Committee also subsumes the Disability Advisory Sub-committee. This committee provides an avenue through which career development issues can be raised. The Service has relied heavily upon collaboration as a means of initiating and implementing social justice activities. This entails a commitment to working with other, sometimes disparate, organisational units. New and emerging activities The Service has commenced negotiations to develop an indigenous student mentorship program through which senior students will mentor first-year students and high school students. This program aims to provide significant role modelling to encourage indigenous students from a local high school to consider higher education and to encourage current university students who feel discouraged in their studies. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. Toowoomba, and the University, has welcomed refugees into the city. As a multicultural education centre, the University provides an important source of support for refugees. There are considerable cultural issues that need to be addressed to better facilitate these new Australians’ entry into the workforce; admission to a degree is not the only solution. They require support in learning and engaging with the discourse of career and employment within the Australian context. The Psychologist, Careers and Equity, commenced the first round of consultations with a pilot group of undergraduate students were holders of a humanitarian visa or were recently granted citizenship. The aim of the project is to enhance the students’ career development and their capacity to enter the workforce as graduates. The University has established a Pro-Vice Chancellor portfolio for social justice and regional engagement. The creation of this PVC role opens up considerable opportunities for the Service with respect to engaging with the University as a whole. It is envisaged the Service will actively pursue the aims of this portfolio in an attempt to bring about best practice in social justice and further collaborate with university agencies. DISCUSSION There is neither a comprehensive nor definitive guide for the implementation of social justice ideas or strategies within the career development sector of Australian higher education. Nevertheless, we contend that the practice of career development within higher education should reflect theory and that it should be used to revise existing practices and to implement new practices. This paper describes a limited range of proactive professional services that are driven by the idea of linking career development and social justice within higher education. An important feature of the Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. work presented here is its implicit relationship with the Systems Theory Framework and the aims and principles of the IAEVG (2001) and UNESCO (1998). There are of course limitations to the amount and quality of social change work that can be done, given the exigencies of a busy career service. The extent to which an organisation can introduce social change work is constrained by resources and attitude, rather than by standards or ideals, as these are readily available (e.g., DEST, 2004; IAEVG, 2001; UNESCO, 1998). In terms of resources, the examples presented here are generally cost-efficient and can be readily established within other university settings and so mitigate against the perennial issue of limited resources. Furthermore, it is our experience that collaboration with organisations that are not agents of social action can produce positive, cost-efficient outcomes. It is therefore imperative that that a university career service maintains links and networks with other internal and external agencies (e.g., employers) to develop a broad understanding of social justice issues within the community. Our example of working with university marketing and public relations staff is indicative of this point. Furthermore, we contend that it is the responsibility of the careers service to engage with university organisational dynamics to bring about social justice initiatives, rather than rely upon a top-down approach of waiting for direction and resources. Career development practitioners are powerful gatekeepers and channels into the higher education system. We therefore encourage career development practitioners to learn about the key issues of equity and disadvantage that have a significant impact upon the career potentials and outcomes of students. There is a variety of equity-related resources that are of value to career practitioners. We recommend the Commonwealth Department of Education, Science and Training (2004) website that contains resources pertaining to equity issues in higher education. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. This site contains links to crucial documents that guide and underpin Australian policies and practices pertaining to higher education. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. REFERENCES Australian Education Council. (1991). Young people’s participation in post- compulsory education & training. Canberra: Australian Government Publishing Service. Abbott-Chapman, J., Hughes, P., Wyld, C. (1991). Improving access of disadvantaged youth to higher education. Evaluations and Investigations Program. Department of Employment, Education and Training. Canberra: Australian Government Publishing Service. Clarke, J. A., Bull, D. D., & Clarke, J. R. (2004a). USQ's tertiary preparation program (TPP): more than 15 years of evolution in distance preparatory / bridging programs. Manuscript submitted for publication. Clarke, J. A., Bull, D. D., & Clarke, J. R. (2004b). Changes in the pedagogical and administrative approaches used in the USQ tertiary preparation program, 1989-2004. Manuscript submitted for publication. Collett, I. (1997). Implications of rural location on career development. . In W. Patton & M. McMahon (Eds.), Career development in practice. A systems theory perspective (pp. 71-82). Sydney: New Hobsons Press. Dawkins, J. (1990) A fair chance for all: Higher education that’s within everyone’s reach. Canberra: Department of Employment, Education and Training. Department of Education, Science and Training. (2004). Equity in higher education. Retrieved 25 February 2005 from http://www.dest.gov.au/highered/equity.htm. Department of Education, Training & Youth Affairs. (1999a). Equity in higher education. Occasional Paper Series, 99-A. Canberra: Commonwealth of Australia. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. Department of Education, Training and Youth Affairs (DETYA) (1999b). Higher education equity plans for the 1999-2001 triennium. Higher Education Division. Canberra: Author. Department of Education, Training and Youth Affairs (DETYA) (1999c). Higher education indigenous education strategies 1999-2001. Higher Education Division. Canberra: Author Ford, T., & McIlveen, P. (2003). Family guide to USQ. [Brochure]. Toowoomba: University of Southern Queensland. Hansen, S. S. (2003). Career counsellors as advocates and change agents for equality. Career Development Quarterly, 52, 43-53. Hartung, P. J., & Blustein, D. L. (2002). Reason, intuition, and social justice: Elaborating on Parsons’s career decision-making model. Journal of Counseling and Development, 80, 41-47. Herr, E. L. (2003). The future of career counselling as an instrument of public policy. Career Development Quarterly, 52, 8-17. Herr, E. L., Cramer, S. H., & Niles, S. G. (2004). Career guidance and counselling through the lifespan. Systematic approaches. 6th ed. Boston: Pearson. Hughes, C. (1995). Career education and educating for social justice. Australian Journal of Career Development, 4, 12-14. International Association for Educational and Vocational Guidance. (2001). The Paris 2001 IAEVG Declaration on Educational and Vocational Guidance. Retrieved 10 September 2004 from http://www.iaevg.org/iaevg/nav.cfm?lang=2&menu=1&submenu=1. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. Long, M., & Hayden, M. (2001). Paying their way. A survey of Australian undergraduate university student finances, 2000. Canberra: Australian Vice- Chancellors’ Committee. Martin, L. M. (1994). Equity and General Performance Indicators in Higher Education: Volume 1. Equity Indicators. Canberra: Australian Government Publishing Service. McIlveen, P., Cameron, M., McLachlan, D. & Gunn, J. (in press). The study-to-work transition of university students with a disability. Australian Journal of Rehabilitation Counselling. McIlveen, P. Ford, T., & Everton, B. (in press). Facilitating transition from rural schools to university. Australian Journal of Career Development. National Board of Employment Education and Training. (1994). Resource implications of the introduction of good strategies in higher education for disadvantaged students. Commissioned report No. 30. Canberra: Australian Government Publishing Service. Nelson, B. (2002). Higher education at the crossroads. Ministerial discussion paper. Canberra: Commonwealth of Australia. O’Brien, K. M. (2001). The legacy of Parsons: Career counsellors and vocational psychologists as agents of social change. Career Development Quarterly, 50, 66-76. Patton, W., & McMahon, M. (1997). The systems theory framework. In W. Patton & M. McMahon (Eds.), Career development in practice. A systems theory perspective (pp. 15-34). Sydney: New Hobsons Press. Patton, W., & McMahon, M. (1999). Career development and systems theory. A new relationship. Pacific Grove, CA: Brooks/Cole Publishing Company. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. Sarra, C. (1997). Systems theory and the aboriginal career decision maker. In W. Patton & M. McMahon (Eds.), Career development in practice. A systems theory perspective (pp. 47-57). Sydney: New Hobsons Press. Senate Standing Committee on Employment, Education and Training. (1990). Priorities for reform in higher education. Canberra: Australian Government Publishing Service. Taylor, R. (1977). Career development, socio-economic disadvantage and participation in higher education. In W. Patton & M. McMahon (Eds.), Career development in practice. A systems theory perspective (pp. 59-70). Sydney: New Hobsons Press. Tinto, V. (1998). Colleges as communities: Taking research on student persistence seriously. The Review of Higher Education, 21, 167-177. United Nations Educational, Scientific and Cultural Organisation. (1998). Handbook on career counselling. A practical manual for developing, implementing and assessing career counselling services in higher education settings. Paris: Author. Williams, T., Long, M., Carpenter, P., & Hayden, M. (1993). Entering higher education in the 1980s. Evaluations and Investigations Program. Department of Employment, Education and Training. Canberra: Australian Government Publishing Service. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. AUTHORS Peter McIlveen is a psychologist and Manager of the Careers Employment & Welfare unit at the USQ. Bradley Everton is the Psychologist, Careers and Equity at the USQ and has a brief to provide career counselling and education services to empower students from identified equity groups. John Clarke is Manager Planning & Quality and Executive Officer to the Vice- Chancellor at USQ. He has wide experience in equity research and policy development in the Australian higher education sector. Final and authorised version first published in the Australian Journal of Career Development in  Volume 14, number 2, published by the Australian Council for Educational Research.  Copyright © 2005 Australian Council for Educational Research. THEORY AND PRACTICE Why is Systems Theory Framework relevant to the issues of career development and social justice? Answer - The STF embeds the individual’s career development within broad social, economic and environmental factors and thus induces consideration of variables that impact upon a person’s position and resources within society. What are some of the main equity groups that require the attention of career practitioner working within Australian universities? Answer - Indigenous students; women studying in non-traditional areas; students with a disability; students from a rural or isolated region; students from language backgrounds other than English; and students from low socio-economic status backgrounds Which Commonwealth Department provides a valuable website containing information on equity resources? Answer – Department of Education, Science and Training. 
work_bwolw7wnynbeddmrtzz743mmcq	----	http://csp.sagepub.com/ Critical Social Policy http://csp.sagepub.com/content/31/2/241 The online version of this article can be found at: DOI: 10.1177/0261018310396032 2011 31: 241 originally published online 9 February 2011Critical Social Policy Karen Bell Environmental justice in Cuba Published by: http://www.sagepublications.com can be found at:Critical Social PolicyAdditional services and information for http://csp.sagepub.com/cgi/alertsEmail Alerts: http://csp.sagepub.com/subscriptionsSubscriptions: http://www.sagepub.com/journalsReprints.navReprints: http://www.sagepub.com/journalsPermissions.navPermissions: http://csp.sagepub.com/content/31/2/241.refs.htmlCitations: What is This? - Feb 9, 2011 OnlineFirst Version of Record - Apr 13, 2011Version of Record >> at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ http://csp.sagepub.com/content/31/2/241 http://www.sagepublications.com http://csp.sagepub.com/cgi/alerts http://csp.sagepub.com/subscriptions http://www.sagepub.com/journalsReprints.nav http://www.sagepub.com/journalsPermissions.nav http://csp.sagepub.com/content/31/2/241.refs.html http://csp.sagepub.com/content/31/2/241.full.pdf http://csp.sagepub.com/content/early/2011/02/08/0261018310396032.full.pdf http://online.sagepub.com/site/sphelp/vorhelp.xhtml http://csp.sagepub.com/ 241 © The Author(s), 2011. Reprints and permissions: http://www.sagepub.co.uk/journalsPermissions.nav Critical Social Policy, 0261-0183 101; Vol. 31(2): 241–265; 396032 10.1177/0261018310396032 http://csp.sagepub.com  K A R E N B E L L University of Bristol Environmental justice in Cuba Abstract ‘Environmental justice’ refers to the human right to a healthy and safe environment, a fair share of natural resources, access to environmental information and participation in environmental decision-making. Some analysts have argued that environmental justice is undermined by the political economy of capitalism. This paper builds on this analysis by evaluating the environmental justice situation in Cuba, a country where there is little capitalist influence. Evidence is based on participant obser- vation and interviews in Cuba, as well as secondary quantitative data. The research findings suggest that Cuba fares relatively well in terms of environmental justice, but still faces a number of challenges regarding the quality of its environment and some aspects of the environmental decision-making process. However, many of its ongoing problems can be attributed to global capitalist pressures. Key words: capitalism, causes, environment, equality, participation Most commentators agree that the term ‘environmental justice’ emerged in the 1980s, out of resistance to the siting of toxic facilities in black and other minority ethnic communities in the United States. A defining moment was the publication of research that showed that hazardous installations, such as toxic waste dumps, were often located in areas with higher percentages of ‘people of color’ (UCC, 1987). This study was followed by further investigations which confirmed that poor and minority ethnic communities in the US were dispropor- tionately exposed to environmental hazards (Bryant and Mohai, 1992; Adeola, 1994; Cutter, 1995) and received unequal protection under environmental law (Lavelle and Coyle, 1992). Thus, the term was originally applied to the socio-spatial distribution of pollution within national borders and, in particular, environmental racism in facility at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 242 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) siting. However, influenced by social movement discourse and recent literature (e.g. Pellow, 2007; Schlosberg, 2007), I am using the term in a broader and more radical way to include the overall quality of the environment (substantive environmental justice); the extent of envi- ronmental equalities (distributive environmental justice); and the fair- ness and inclusiveness of environmental decision-making (procedural environmental justice).1 At the same time, I am limiting the discussion to the current intra-national situation, rather than the inter-national or inter-generational dimensions. Policy responses to environmental injustice, in both the US and the UK, seem to have made little, if any, difference to the problem (Sustainable Development Commission, 2003; Bullard et al., 2007). It is unlikely that the issue can be solved until the causes are better understood, yet there has been relatively little academic attention given to researching the underlying factors (Walker and Eames, 2006). Debates about causes have tended to be around the following themes: discrimination (Bullard, 1983, 1994; Center, 1996; PinderHughes, 1996; Bullard et al., 2007); market efficiency (Been, 1994; Lambert and Boerner, 1997); industrialization (Beck, 1992, 1995, 1999; Schnaiberg and Gould, 2000); power inequalities (Boyce, 2001; Pastor et al., 2001; Berry, 2003); and the political economy of capitalism (Faber and O’Conner, 1993; Harvey, 1996; Pellow, 2007). The aim of this study was to build on this debate by focussing on the last, and most frequently overlooked of these, the political econ- omy of capitalism. The few authors that do explicitly focus on capital- ism allege that it fosters environmental injustice through producing intense ecological harm, as well as extensive social hierarchies, primar- ily those of race, class, gender and nation. This occurs, they maintain, as a direct result of capitalism’s need for infinite economic growth, requiring incessant production and consumption. These consumption patterns can only be maintained through appropriation and destruc- tion of the resources of the poorer nations and communities. In addi- tion, under capitalism, there is a need for short-term profit, in order for businesses to survive. This encourages cost cutting, putting pressure on corporations to choose the cheapest, rather than the most sustainable, process so that there is a clear and direct conflict between environmen- tal protection and corporate profits. Such economic ‘efficiency’ also cre- ates social inequality by depressing wages and fostering unemployment whilst, at the same time, profits accrue to shareholders. Inequality is further reinforced as benefits are distributed according to purchasing at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 243 power. Thus, it is claimed ‘The production of social inequalities by race, class, gender, and nation is not an aberration or the result of mar- ket failures. Rather, it is evidence of the normal, routine, functioning of capitalist economies’ (Pellow, 2007: 17). In order to contribute to this debate, it seemed useful to actually look at a non-capitalist state to see how it fares in terms of environ- mental justice (in its widest sense). Thus, I decided to look at a coun- try which, after 50 years of socialism, I believed would be minimally impacted by capitalism – Cuba. The country was also of particular interest as it had recently been identified as the only country in the world to have achieved sustainable development by the World Wildlife Fund (2006). Methodology Evaluating Cuba’s performance in terms of environmental justice was challenging as it was hindered by the extreme positions that most com- mentators seem to take.2 This is the result of the political context in which Cuba exists. Since the revolution in 1959, Cuba has been the recipient of relentless US efforts to overthrow the government. As well as an ongoing blockade,3 this has included proactive sponsorship of opposition groups; stated attempts to use academic work to destabi- lize the Cuban system; a crusade of disinformation; and a campaign of aggression, including sabotage, terrorism, an invasion, attempted assassinations of the leadership, biological attacks and hotel bombings (Saney, 2004; Kapcia, 2008). The situation amounts to an undeclared war and, consequently, many Cubans are reluctant to admit any failings which could be used as justification for further attacks. Thus, any claim of objectivity or neutrality when researching Cuba appears nonsensical since, whatever is said about the country, can be used as ammunition by one side or the other. To increase reliability, therefore, I employed a complex range of data gathering techniques including participant observations, docu- mentary analysis, literature reviews, semi-structured interviews and secondary quantitative material. The fieldwork took place over 15 weeks, between mid December, 2008, and the end of March, 2009. I was based in Havana but also trav- elled fairly extensively, visiting 19 other towns, cities and villages on the island. I interviewed a total of 68 people: those representing state at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 244 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) institutions (n = 21); those representing civil society organizations (n = 17); experts (n = 5); workers (n = 9); and residents (n = 16). Participant observation involved visiting areas, projects and commu- nities where there were potential environmental justice issues; taking part in activities that constitute the everyday lives of the people expe- riencing the environmental justice or injustice; and attending public meetings where environmental decisions were being made. The study was necessarily exploratory, as there do not appear to have been any previous studies specifically looking at environmental justice within Cuba. It was, therefore, broad in scope, so it is only possible to highlight some of the main findings here. These will be discussed with regard to substantive, distributional and procedural environmental justice. Substantive environmental justice in Cuba Historically, Cuba has suffered hundreds of years of environmental degradation as a result of intensive exploitation of minerals and other natural resources, lack of environmental legislation, exhaustive export commodity production, and poor agricultural practices (see Diaz- Briquets and Pérez-López, 2000; Houck, 2003; Maldonado, 2003; Whittle and Rey Santos, 2006). These problems seem to have begun under colonial rule, first by Spain and then by the United States, dur- ing which time the main concern was exploitation of natural resources (Fernández, 2002; Funes Monzote, 2008). Even after the 1959 revolu- tion, the degradation intensified when the country embraced the so- called ‘green revolution’, an era of intensive, industrialized agriculture and heavy use of chemical fertilizers and pesticides4 (Gonzalez, 2003). However, in 1992, after a landmark speech at the Rio Earth Sum- mit, the government initiated a series of reforms aimed at redressing past environmental harms and minimizing future degradation. This included establishing a new and powerful Ministry of Science, Technol- ogy, and Environment (CITMA); publishing the country’s first envi- ronmental programme – ‘The National Environmental Strategy’; and passing new framework environmental legislation, Law 81, ‘The Law of the Environment’. The new law established the basis of an enforce- ment system that includes emissions monitoring, inspections, civil and criminal penalties, as well as opportunities for private citizens to seek at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 245 justice regarding environmental violations through the courts. The most important general principles of Law 81, from an environmental justice perspective, are that it establishes: � the right to a healthy environment (Article 4(a)) � the precautionary principle5 � the right to environmental information (Article 4(e)) � the right to be consulted on environmental actions and decisions (Article 4(k)) � the necessity for community participation to achieve effective environ- mental decision-making (Article 4(m)) � the right to access to administrative and judicial bodies to demand com- pliance with the law (Article 4(l)). These legislative reforms were accompanied by practical measures which made a dramatic difference to Cuban daily life. For example, industrialized agriculture, featuring large-scale irrigation schemes and considerable inputs of chemicals, was rejected in favour of organic food production (Rosset and Benjamin, 1995; Levins, 2005). Cuba also moved away from a transportation system that was dependent on oil (Diaz-Briquets and Perez-Lopez, 1995) and turned to renewable energy sources and energy conservation (see Guevara-Stone, 2009). In addition, reforestation schemes were stepped up and systems were established to ensure managed protection of ecologically, socially, historically, and culturally important areas. It is frequently alleged (e.g. Kaufman, 1993; Diaz-Briquets and Perez-Lopez, 1993) that the environmental improvements made in the 1990s were not born of any genuine environmental commitment on the part of the government, but were rather an improvised emergency response to the ‘Special Period’. However, I do not believe this to be the case as Cuba could have chosen other options, such as IMF-style cuts to basic services, in response to the crisis. Moreover, the environmental changes were consistent with ongoing developments and debates in the country. For example, there were a number of environmental pro- grammes already in place, going back to the 1960s (Levins, 2005), and the pre-existing environmental law (Law 33, passed in 1981) had been widely considered to be pioneering for the region (Whittle and Rey Santos, 2006). The relative weight accorded to environmental concerns in Cuba in the first decades after the revolution, reflected the dominant thinking globally, though there were fierce debates between ecologists at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 246 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) and those who advocated ‘modernization’ (Levins, 2005). Levins argues that it is socialism that enabled the ecologists to win the debate in Cuba because ‘Nobody was pushing pesticides or mechanization to make a profit . . . Socialism made ecological choices more likely’ (2005: 14). Consequently, many people that I interviewed, or spoke to infor- mally, in Cuba said they were happy with their environment and proud of the country’s achievements in this respect. The most widely appreciated aspects included the provision of low-cost (or, sometimes, free) housing, food, public transport and utilities; successful energy efficiency programmes; care of the population during hurricanes;6 urban agriculture initiatives;7 improvement of public transport; and improvements in workplace safety. The ‘Revolución Energética’ (Energy Revolution), which began in 2006, is a particularly good example of an environmental policy, which also addresses environ- mental justice. This initiative endeavoured to save energy and use more sustainable sources. The programme included replacing house- hold appliances with more efficient and safer equipment, supplied free or at low cost to the entire population. Cuba’s transport policy is another example of a strategy which both improves the environ- ment and increases social justice. The number of private cars has been kept in check by the state’s car ownership policy where people cannot purchase cars just because they have the money to buy them. All cars are assigned according to the needs and responsibility that the person has and there is no encouragement to perceive cars as an individual item for consumption. There is now considerable investment in pub- lic transport (Taylor, 2009) and, in addition, planning policies have reduced the need for travel. Mixed-use developments are encouraged so that, where new housing is constructed, enough new facilities and jobs are provided locally. Furthermore, financial support enables people to exchange their job for one closer to their home, if they wish (Enoch et al., 2004; Taylor, 2009). However, as well as praising the successes and improvements, many people complained about certain aspects of the environment. These were in regard to inadequate sanitation; shortcomings in the water supply; river and air pollution; deficiencies in waste collection services; dam- aged streets; and inadequate and insufficient housing. This fits with a previous government survey that showed extensive soil erosion, defor- estation, inland and coastal water pollution, loss of biodiversity, and poor sanitation in cities and rural areas (CITMA, 1997). The ‘Special Period’ also increased some problems, including deforestation, illegal at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 247 hunting and fishing, the trade in wild species, habitat destruction and illegal dumping (CITMA, 1992, cited in Maal-Bared, 2006). Though some of this environmental harm has been committed by individuals, the most severe environmental destruction has resulted from major projects and industries owned by the state or international companies (Maal-Bared, 2006). This has usually been in relation to tourism and industrial production, in particular, there has been a report of serious pollution from the expanding nickel industry8 (Chavez, 2008). The environmental experts I spoke to in Cuba recognized that there was no cause for complacency and were keenly aware of the work to be done (e.g. interviews, Director of Environmental Policy, CITMA; Director of Centre for Environmental Studies, University of Havana). Although there were clearly serious problems in particular areas, if we compare Cuba with other countries, however, it does seem to be doing relatively well in terms of substantial environmental justice. As Table 1 shows, Cuba uses much less energy and emits less CO 2 and other air particulates than the average Latin American country or country of a similar income bracket. In addition, it has much better sanitation coverage than these countries and a similar level of improved water source coverage. So, though substantive environmental justice in Cuba was unsatisfactory, and even seriously deficient for some people, it seems to be comparatively good. Moreover, Cuba has to live with its own pollution because, unlike the developed capitalist countries, it is not exporting its waste to other parts of the world (see Pellow, 2007; Davis and Caldeira, 2010). Distributional environmental justice Cuba puts great emphasis on achieving social equality, and uses macro- economic and social policies based on universality and equitable access to achieve this (Rodríguez and Carrizo Moreno, 1987; Regueiro and Alonso, 2001, cited in Coyula and Hamberg, 2003). This includes measures to reduce wage inequality; keep prices for goods and services low; assure equal and affordable access to essential food and consumer goods through the ‘libreta’ ration system; and extend social security, welfare, sports and cultural activities to the entire population for free, or at very low cost. The introduction of these measures, in particular, the libreta (ration book) had the greatest benefit for the poor, while limiting the excesses of the rich, to some extent. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 248 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) However, inequality began to increase in the 1990s as a result of measures brought in to survive an economic crisis (Hamilton, 2002; Uriarte-Gaston, 2004; Mesa-Lago, 2006; Blue, 2007; Morris, 2008). The blockade had pushed Cuba towards an economic dependency on the Soviet Union and the Eastern European ‘Community for Eco- nomic Cooperation’ (COMECON). Consequently, after COMECON collapsed in 1989 and the US blockade tightened, the country faced an economic disaster, with its GDP falling by more than 48% (Diaz- Briquets and Perez-Lopez, 1995). In Cuba, this era was referred to as the ‘Special Period in Peacetime’, implying the need for measures Table 1 Comparison of environmental indicators Indicator Cuba Other UMICs* Other LACs** Energy use (kg of oil equivalent per capita) 944 2109 1243 Electric power consumption (kWh per capita) 1231 2957 1812 Electricity production from coal sources (% of total) 0.0 26.4 5.2 CO 2 emissions (metric tons per capita) 2.2 5.1 2.5 PM10, country level (micrograms per cubic meter)† 17 32 35 Improved water source (% of population with access) 91 94 91 Improved water source, rural (% of rural pop. with access) 78 82 73 Improved water source, urban (% of urban pop. with access) 95 98 97 Improved sanitation facilities (% of pop. with access) 98 82 78 Improved sanitation facilities, rural (% of rural population) 95 63 51 Improved sanitation facilities, urban (% of urban population) 99 89 86 *UMIC = Upper Middle Income Country; **LAC = Latin American Country. †Particulate matter concentrations refer to fine suspended particulates less than 10 microns in diameter (PM10) that are capable of penetrating deep into the respiratory tract and causing significant health damage. The estimates represent the average annual exposure level of the average urban resident (Pandey et al., 2006). Source: World Bank (2009) using most recent data (mainly 2007). at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 249 that would normally apply in wartime, in order to cushion the effect of the crisis on the population. A high standard of free universal health care and education was maintained (Barbeira et al., 2004) and social programmes to sustain public welfare were stepped up. However, because of its history of colonialism, Cuba was depend- ent on external trade and, therefore, needed to pursue hard currency in order to interact with the capitalist world. Following extensive consultation with the population, this led to the use of market-based policies which some have called concessions to capitalism or an attempt to ‘use capitalism to save socialism’ (Taylor, 2009: 4). These poli- cies included the development of tourism, legalization of the dol- lar, individual self-employment, joint ventures with foreign capital, intensifying exploitation of natural resources for export (especially nickel), and increasing the availability and promotion of consumer goods in order to capture dollars sent as remittances (Dello Buono, 1995; Mesa-Lago, 2005; Raby, 2006). In this context, inequality emerged between those who had access to dollars and those who did not, as well as between those who were employed in the informal sector and those who worked in the formal economy (Morris, 2008). The dollar-based sector of the economy cov- ers the tourist sector, foreign businesses in joint ventures, and some state enterprises that work in export markets (Hamilton, 2002). As in many countries, some of the variation in income inequality has a racial dimension (Blue, 2007). For example, the increase in self-employ- ment, implying access to resources that can be drawn on for the initial investment, discriminated against black people who were less likely to have relatives abroad able to supply these start-up funds (Blue, 2007). However, although income inequality increased, once the value of sub- sidized housing, utilities and food, as well as free services, is factored in, the actual inequalities are much lower. Distributional environmental injustice is built upon not only social inequality, but also residential segregation. In capitalist coun- tries, social-spatial segregation by race and class has been identified as a major factor contributing to environmental injustice (Bullard, 1995; Pulido, 1996; Martinez-Alier, 2003). The classic pattern of spatial segregation also existed in Cuba before the revolution, but most analysts consider that this has been greatly alleviated by the general programmes designed to reduce poverty, as outlined above, as well as a number of specific housing laws and policies (Coyula and Hamberg, 2003; Oliveras and, Núñez, 2004; Ramirez, 2005; Sawyer, at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 250 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) 2006; Taylor, 2009). These included the Law of Low Rents (1959) and the Law of Urban Reform (1960) which made housing affordable (or free) in any area of the city or country; as well as the redistribution of housing vacated by the wealthy who fled to the US (Taylor, 2009). Most importantly, the lack of a legal land or housing market, whilst allowing mobility through housing ‘swaps’, has largely prevented segregation according to income (Coyula and Hamberg, 2003). However, as Oliveras and, Núñez point out, though these policies have significantly mitigated against segregation, ‘four decades have proven insufficient’ to completely revert a 400 year old development pattern (2004: 21). Thus, although there are no areas officially recog- nized as poor,9 there are some districts where the population, though heterogeneous, is more likely to contain people on lower incomes (Ramirez, 2005). Even so, my fieldwork impressions were that there seemed to be a distinct lack of the separate communities based on income level, social status or race, that are so easily recognizable in capitalist countries. However, it was not possible to verify these findings quantitatively as socio-spatial data at a micro-level are not currently published in Cuba. At a provincial level, some difference in incomes can be seen between Cuba’s provinces, with the eastern provinces worse off than the west (ONE, 2008). Some of this difference seems to be a result of tourism, which is more developed in the western provinces, particularly Havana, allowing greater opportunities for these residents to acquire dollars (Mesa-Lago, 2002; Oliveras and Núñez, 2004). Distributional environmental injustice is built on inequality and social segregation, but defined by unequal access to healthy and safe environments. There was no qualitative evidence from this study of variations in environmental quality according to social category i.e. this was not a problem that I perceived or that was identified by inter- viewees. In terms of the quantitative evidence, the results were contra- dictory. When average provincial income levels were compared with variations in sanitation coverage, river pollution, and per-capita gov- ernmental spending on the environment, there was no apparent rela- tionship between lower income and a poorer environment. However, there did seem to be a weak relationship between low income and a lack of access to improved water supply. Thus, though there was evidence of social inequalities and a mini- mal level of segregation, according to income, there was very little evi- dence of a pattern of distributive environmental justice in Cuba. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 251 Procedural environmental justice in Cuba The final aspect of environmental justice to be discussed here is ‘pro- cedural environmental justice’. There is no accepted definition of this term, but in its widest sense, it can be said to include open, honest and inclusive environmental decision-making processes; consistent appli- cation of rules; access to environmental information; and control over environmental justice outcomes (see Bell, 2011). In the West, Cuba is generally portrayed as having few, if any, of these ingredients of procedural justice. It is alleged that there is mini- mal freedom of expression, access to information, democracy, or influ- ence over decision-making of any kind. The most recent Economist Intelligence Unit democracy index, for example, places Cuba 125th out of 144 countries (2008). Also, a recent report states that, in Cuba, people cannot collaborate with each other in a meaningful way against authorities because it would be dangerous and so complaints are limited to what is deemed to be ‘acceptable to the party, the establishment and the institutions of communism in Cuba’ (Freedom House, 2008: 9). However, many Cuba analysts contend that, though the country does not correspond to the capitalist brand of democracy, character- ized by multi-party elections, it exhibits an alternative model based on direct popular democracy, participatory decision-making, election of representative delegates, a vibrant civil society, accountable govern- ment, an emphasis on equality and a willingness to respond to demands for change (see, for example, Cole, 1998; Roman, 2003; Saney, 2004; Raby, 2006; Kapcia, 2008; Yaffe, 2009). There is not the space to debate these two vastly different views of Cuban society here, so I will focus only on the aspects of democracy that directly relate to environmental matters. There is a vast network of institutions and organizations that play a part in influencing environ- mental decisions in Cuba. As well as the legislative and executive bodies of government, the judiciary, the mass organizations, the Communist Party and environmental activist organizations, all participate. Pro- posals for serious reforms of general government policy are circulated widely and discussed extensively in local branches of mass organizations, schools, workplaces and universities, before being put to referendum or opinion channelled into National Assembly debates (Cole, 1998; Raby, 2006). The key to understanding the Cuban concept of democracy is the ‘mandat imperatif’ (or the ‘instructed delegate model’) as developed by Rousseau and the Paris Commune. In Cuba this is organized through at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 252 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) the system of Poder Popular (Popular Power). The central idea is that representatives should be truly accountable and responsive to their con- stituents, attempting to resolve all matters presented to them. When I asked people how they would try to change an environmental situation or make a complaint about the environment, they almost always said that they would do this by approaching their Poder Popular delegate. They generally had great faith in their delegate as a representative, find- ing them to be reliable, hard-working and trustworthy. This confidence may be a result of the accountability of the system, in that an ineffective delegate would quickly lose their job, as explained here: We meet with those that choose us four times a year. People are very demanding at these meetings. They can revoke us at any moment, and they do. We are not sacked by the National Assembly or anyone else, but by the people who elect us. They can do it whenever they want. They can say he’s not what we thought, we made a mistake and that’s it. (interview, Delegate, Poder Popular, Habana del Este) Thus, people generally felt that they had been able to make their opin- ion known about environmental concerns, though the matter was not necessarily resolved in their favour, especially if additional resources were required. Contrary to those who claim that workers in Cuba are not free to make demands because there is no ‘right to strike’, there is, in fact, no legislation covering strikes, to prohibit or allow them (Ludlam, 2009), though trade unions can close down the workplace if the conditions are such that an imminent workplace accident is fore- seen. Workers and union officials have exercised this right, for exam- ple, where there was not the necessary protective equipment (interview, Head of Social Labour, National Trade Union Council (CTC)). However, there are some limitations on the forms of resistance that Cubans are prepared to utilize. Street protest, for example, though not illegal, is not seen as an effective strategy, as explained by an environ- mental campaigner: It will not be efficient [to protest] and it can be manipulated by dis- sidents and outside sources, because there is a huge magnifying glass on Cuba and it can be misinterpreted . . . For us, it does not make sense to chain yourselves to trees and things like that . . . (interview, Environ- mental Educator, Antonio Nuñez Jímenez Foundation for Nature and Humanity (FANJ)) at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 253 In terms of access to information, according to the informal conversa- tions and interviews I carried out, people in Cuba had a number of ways that they found out about their local environment: through Poder Popular, the media, the mass organizations, informal contacts, CITMA, other relevant ministries, health and safety representatives at work, the internet, the library and even their local GPs.10 Though some envi- ronmental information is published in Cuba, the more detailed and specific information was not readily available, however. Even so, infor- mation could be obtained upon request, as indicated by this comment from an environmental activist: There are many factories upstream and a lot of the pollution from them goes into the rivers that pass through the protected area . . . In our pro- posal [to make improvements to the protected area] we have listed all the names of the pollutants . . . CITMA passed this information to us . . . they gave us all the information and also the permission to use the information in the presentations . . . The only thing that we really have in abundance in Cuba is knowledge. We don’t hide what we know, nor do the institu- tions. (interview, Representative, Abra del Rio, Environmental Project, Cojimar) In terms of control over outcomes, the fieldwork interviews and con- versations revealed numerous situations which demonstrated that the environmental decision-making processes worked well for citizens. For example, I was told about reductions in the amount of polluting emis- sions from production plants as a result of citizen or worker complaints in Guanabo, Matanzas, the Bay of Havana and Holguín (interviews, Protected Area Team, Habana del Este; Coordinator of the Network of Political Ecology in Latin America and the Caribbean; Director of Social Work, Holguín). I was also given examples of development proposals which had been abandoned or relocated as a result of public pressure, for example a dam in Baracoa (interview, Resident, Baracoa), and a micro-generator in Regla, Havana (interview, Coordinator of the Network of Political Ecology in Latin America and the Caribbean). However, there was also contradictory evidence, with numerous examples of a lack of citizen power. For example, leaking water pipes which had not been fixed despite local people complaining for more than 30 years (interview, Resident, San Miguel del Padrón); ongoing air pollution from a local hospital (interview, Resident, Cayo Hueso, Centro Habana); and oil exploration projects begun without prior at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 254 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) consultation (interview, Protected Area Team, Habana del Este). I was also told that the compulsory requirements to organize public hearings and other consultations were sometimes bypassed. An environmental NGO worker, for instance, said: When the electrical generation was decentralised all over the country, they tried to proceed very, very fast and sometimes they did not follow the protocol with the environmental impact assessment and the licence . . . It can be when there is an interest of the central Government things happen very fast and sometimes they push and jump some of the stages. Then after, when the problem happens, they realise they have to be cor- rective because they didn’t think enough of the environmental conse- quences. (interview, Environmental Educator, Antonio Nuñez Jímenez Foundation for Nature and Humanity (FANJ)) Another example of this concerns transgenic production. Despite the government commitment to the precautionary principle, GMOs (genetically modified organisms) have recently been released into the atmosphere for the first time in Cuba, without public consultation. In April 2010, scientists at the Center for Genetic Engineering and Biotechnology (CIGB) began ‘field tests’ with a corn transgenic. Field tests are probably an irreversible step because of the danger of cross-contamination through pollen drift11 and, therefore, not to be undertaken lightly. Agro-ecologists in Cuba are now opposing the cultivation of this crop and asking for a moratorium until there has been a public debate on the issue (interview, Agro-Ecologist, University of Matanzas). Thus, procedural environmental justice in Cuba was strong in terms of the network of organizations involved, the legislation and the participatory culture, but there were some deficiencies in terms of discouragement of protest, a lack of easily available information and inconsistencies, or omissions, with regard to consultation processes. Causes of environmental injustice in Cuba A number of factors seem to explain Cuba’s current environmental justice problems. To begin with, colonialism in Cuba permanently altered the island economically, environmentally and socially, orientat- ing the country toward primary export production, stifling indigenous at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 255 industry and tying Cuba to a dependency on external trade (Fernández, 2002; Funes Monzote, 2008; Kapcia, 2008).12 Secondly, the blockade (which could hit hard as a result of this dependency) has affected the country in terms of the availability and cost of technology, as well as a general shortage of resources. For exam- ple, problems with water supply have been linked to a shortage of replacement parts for the distribution network, originally built using US components (American Association for World Health, 1997).13 The resulting lack of resources has also reduced the capacity of CITMA to carry out monitoring, to replace and modify polluting facilities, and to adopt consistent standards, as explained by CITMA’s Director of the Environment: The new industry, since 1990, complies with international standards and norms . . . but the old industries, say, the cement factory in Camaguey, do emit pollution . . . The chimneys are very old . . . If we close the factory it will improve the environment. But the state can’t afford that. They don’t want to close the factory because it is a source of income and because it is the workplace. Every case is particular and there are many factors involved – political, economic, environmental – and they all have to be balanced . . . If you apply strict environmental standards today you would have a list where you would have to close sixty or seventy factories now but if you closed these factories it would be a problem for us. It is complicated. (interview, Director, Directorate of Environmental Policy, CITMA) In addition, the US blockade seems to have conditioned and limited Cuba’s possibilities to achieve procedural justice. Much of the restric- tions can be related to the fact that Cuba has had to operate in an international situation where the dominant world power is intent on its destruction (Lievesley, 2004; Kapcia, 2008). This has given Cuba a sense of siege, and justified a war footing and control of expression and political action (Kapcia, 2008). Kapcia states that it is possible to cor- relate the amount of control with ‘the level of threat posed or perceived’ (Kapcia, 2008: 133), so that moments of greater external pressure are associated with greater expectations for the population to conform. Thirdly, the economic crisis (which would almost certainly not have happened were it not for the context of both the blockade and the history of colonialism) led to the initiation of a number of poli- cies, generally associated with capitalism. These measures, especially tourism, self-employment and the intensive exploitation of natural at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 256 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) resources, have had a negative influence on Cuba’s environment and society. For example, consumerism has increased as certain foods and experiences enjoyed by tourists have come to symbolize the good life and people come to gain status and identity from material, rather than social, achievements (Taylor, 2009). This may be linked to increased inequality, as there is now mounting evidence that inequality drives higher consumerism (Wilkinson and Pickett, 2009). Conclusion Cuba’s environmental justice successes seemed to be linked to policies based on meeting basic needs, prioritizing equality of outcomes, inno- vative programmes, participatory democracy, re-localizing production and consumption, and sharing more. Thus, the study shows us the importance of a commitment to political and social equality, as well as a healthy environment, in order to achieve environmental justice. The causes of the injustices that occurred in Cuba seemed to be a result of a complex interplay between a range of factors, such as a his- tory of colonialism; a shortage of resources; the economic blockade; US political hostility; development patterns; industrialization; the need to acquire hard currency; as well as management issues and it is important not to be too simplistic about this. However, most of these factors seem to be underpinned by global capitalist pressures, impacting via colo- nialism, the blockade and the need for hard currency. Discrimination, market efficiency, industrialization and power inequalities can also be seen to influence the situation in Cuba, but generally are more problematic as a result of the context of capital- ism. For example, past discrimination against black people enables enduring inequalities in the new private enterprise context and mar- ket ‘efficiency’ means that Cuba intensively extracts nickel as required by global capitalism. Thus, it does seem that, even in Cuba, capital- ism seems to undermine its efforts to achieve social and environmental equality and well-being. This seems to reinforce the idea that capital- ism is a fundamental factor that should not be ignored in any analysis of environmental justice. However, socialism has also been associated with environmental problems. Though socialism has always contained an ecological per- spective (Burkett, 1999; Bellamy Foster, 2000, 2008), some develop- ments in socialist countries have, clearly, also been environmentally at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 257 damaging. The Soviet Union, for example, succumbed to an extreme version of the productivism, and its associated environmental destruc- tion, that characterized early twentieth-century modernity, in general (Bellamy Foster, 2008). As Cuba’s Director of the Environment empha- sized, any economic system, socialist, or otherwise, needs to be driven by an environmental ethos: It does not mean that, with socialism, the environment automatically improves. For example, what happened in Europe, with the countries of Eastern Europe, there were a thousand disasters. That is to say socialism creates a better opportunity but this opportunity has to be built upon and materialised but I think yes, that socialism is an advantage . . . But I emphasise, it is not automatic, you have to try to create a socialist system where the environmental agenda is driven well, otherwise you will still have environmental problems. Nothing is given, it has to be achieved. (interview, Director, Directorate of Environmental Policy, CITMA) However, the question that is being considered here is, not whether we need socialism, but whether we need an alternative to capitalism. Some argue that new or reformed types of capitalism are, or can be, less environmentally or socially damaging (e.g. Porritt, 2005). These, and several ecological economists and social justice analysts (e.g. Daly and Farley, 2004; Wilkinson and Pickett, 2009), do not urge the demo- lition and rebuilding of the whole economy, but rather advocate the reform and improvement of existing institutions. They propose poli- cies that can be carried out by governments such as improved regula- tion; environmental taxes and subsidies; high and low income limits; and workers’ co-operatives. However, though these policies may help, they may not be enough in themselves, because capitalism depends on economic growth which does not seem to be compatible with a healthy environment. As the Copenhagen Climate Summit in 2009 showed, capitalist economies tend to promote profitable environmental solu- tions such as carbon trading, agro-fuels and nuclear power, all of which will probably be devastating in terms of environmental justice. Thus, Copenhagen’s parallel conference, the ‘Klimaforum’, formulated a peo- ple’s declaration calling for ‘system change – not climate change!’ Whether or not we might wish to emulate some of Cuba’s environ- mental and social policies, the country is a living reminder that there are radically different ways that we could organize our world. As we in the West now struggle with our own ‘Special Period’, it may be time to at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 258 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) grasp the opportunities inherent in this situation and initiate the kind of radical transformation that will achieve social and environmental justice for all. Notes 1. A study that only considers distributional justice is severely limiting, since it implies that the solution to environmental injustice would be to share environmental burdens evenly (Heiman, 1996; Faber, 1998; Schlosberg, 2004; Walker and Bulkeley, 2006; Stanley, 2009). 2. In particular, the English language literature on Cuba is dominated by ‘Cubanologists’, academics who are engaged in an ideological struggle against Cuba (Rodríguez, 1983). 3. Following other authors, such as Lievesley (2004), I will be using the word ‘blockade’ rather than ‘embargo’ throughout this paper because the US does not just refuse to trade with Cuba but actively intervenes in Cuba’s relations with other countries. The US blockade began in 1963, but was reinforced in 1992 by the ‘Torricelli Law’ and, in 1996, by the ‘Helms-Burton Act’. The 1992 act prohibited foreign-based subsidiaries of US companies from trading with Cuba, travel to Cuba by US citizens, and family remittances to Cuba. Under the 1996 law, any non-US company that deals economically with Cuba can be sub- jected to legal action. The Obama administration has recently eased some of the travel and remittance restrictions on Cuban Americans (see Eckstein, 2009). 4. The projects within the green revolution spread technologies that had already existed, but had not been widely used outside of industrialized nations, including pesticides and synthetic fertilizers. In Cuba, as in much of the world, these practices resulted in extensive water pollution, soil erosion and loss of natural areas (Diaz-Briquets and Perez-Lopez, 1993; Gonzalez, 2003). 5. The Rio Declaration, where a globally accepted definition of the precau- tionary principle was developed, states: ‘. . . the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective mea- sures to prevent environmental degradation’ (UNEP, 1992: Principle 15). 6. Cuba had experienced three devastating hurricanes in 2008, the year pre- ceding my arrival, named Gustav, Ike and Paloma. The government had taken precautionary measures so that there was minimum loss of life. Only 7 people had died, whereas 700 were killed in the neighbouring island of Haiti. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 259 7. Many of the mini-dumps in Havana have been cleaned up in the last ten years as a result of the government policy to allow unused land to be leased rent- and tax-free to small farmers on a usufruct basis (interview, Worker, Organopónico, Centro Habana). 8. The Cuban nickel industry surpassed tourism as the country’s top foreign exchange earner in 2007. 9. Poverty is seen to be a structural problem of capitalist societies so that the sector of the population that are living on low incomes in Cuba is usually defined as a ‘. . . population at risk of not being able to meet some basic needs’ (Ferriol Muruaga, 1997: 370). 10. All Cuban GPs are trained in environmental issues and how health is affected by the environment. 11. Once released from the anthers into the atmosphere, pollen grains can travel as far as half a mile with a 15 mph wind in a couple of minutes (Nielsen, 2003). 12. This phenomenon is not unique to Cuba, as colonialism has created much ecological and social damage throughout the South (see, for example, Goldsmith, 1993). 13. Though the trading relationship with COMECON helped with resources and technology, since the loss of these economic partners, Cuba has not been able to replace much of the technology that was supplied through COMECON from the 1960s to the 1980s (interview, 28 January 2009; Dr Allan Pierra-Conde, Director, ISMM). References Adeola, F. (1994) ‘Environmental Hazards, Health, and Racial Inequity in Hazardous Waste Distribution’, Environment and Behavior 26: 99–126. American Association for World Health (1997) ‘The Denial of Food and Med- icine: The Impact of the US Embargo on Health and Nutrition in Cuba’. Barbeira, L., De Souza Briggs, X. and Uriarte, M. (2004) ‘The End of Egali-(2004) ‘The End of Egali-‘The End of Egali- tarianism? Economic Inequality and the Future of Social Policy in Cuba’, in J. I. Domínguez, O. E. Pérez Villanueva and L. Barberia (eds) The Cuban Economy at the Start of the Twenty-First Century. Cambridge, MA: Harvard University Press, David Rockefeller Center for Latin American Studies. Beck, U. (1992) Risk Society: Towards a New Modernity. London: SAGE. Beck, U. (1995) Ecological Politics in an Age of Risk. Cambridge: Polity Press. Beck, U. (1999) World Risk Society. Oxford: Polity Press. Been, V. (1994) ‘Locally Undesirable Land Uses in Minority Neighbourhoods: Disproportionate Siting or Market Dynamics?’, Yale Law Journal 103(6): 1383–422. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 260 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) Bellamy Foster, J. (2000) Marx’s Ecology. New York: Monthly Review Press. Bellamy Foster, J. (2008) Ecology and the Transition from Capitalism to Socialism. New York: Monthly Review Press. Bell, K. F. (2011) ‘Environmental Justice: Lessons from Cuba’, PhD thesis, School for Policy Studies, University of Bristol. Berry, G. R. (2003) ‘Organizing Against Multinational Corporate Power in Cancer Alley: The Activist Community as Primary Stakeholder’, Organi- zation and Environment 16(1): 3–33. Blue, S. A. (2007) ‘The Erosion of Racial Equality in the Context of Cuba’s Dual Economy’, Latin American Politics and Society 49(3): 35–68. Boyce, J. K. (2001) ‘Is Inequality Bad for the Environment and Bad for your Health?’ Different Takes 8. Amherst, MA: Population and Development Program at Hampshire College. Bryant, B. and Mohai, P. (eds) (1992) Race and the Incidence of Environmental Hazards: A Time for Discourse. Boulder, CO: Westview Press. Bullard, R. D. (1983) ‘Solid Waste Sites and the Black Houston Community’, Sociological Enquiry 53: 273–88. Bullard, R. D. (1994) Dumping in Dixie: Race, Class and Environmental Quality. Boulder, CO: Westview Press. Bullard, R. D. (1995) ‘Residential Segregation and Urban Quality of Life’, pp. 76–85 in B. Bryant (ed.) Environmental Justice: Issues, Policies and Solu- tions. Washington DC: Island Press. Bullard, R. D., Mohai, P., Saha, R. and Wright, B. (2007) Toxic Wastes and Race at Twenty: 1987–2007. Cleveland, OH: United Church of Christ, Justice and Witness Ministries. Burkett, P. (1999) Marx and Nature. New York: St. Martin’s Press. Center, J. (1996) ‘Waste Management and Risk Assessment: Environmental Discrimination through Regulation’, Urban Geography 17: 400–18. Chavez, J. C. (2008) ‘Nickel Industry Contaminating Cuban Coasts’, El Nuevo Herald 7 August [http://www.minesandcommunities.org/article. php?a=8768]. CITMA (Ministry of Science, Technology, and Environment) (1992) Refer- ring to the negative repercussions of the blockade in the development and environment field. La Habana, Cuba, Academia de Ciencias de Cuba. CITMA (Ministry of Science, Technology, and Environment) (1997) National Environmental Strategy. La Habana, Cuba. Cole, K. (1998) Cuba: From Revolution to Development. London: Pinter. Coyula, M. and Hamberg, J. (2003) ‘The Case of Havana, Cuba’, in Under- standing Slums: Case Studies for the Global Report: 2003. London: Develop- ment Planning Unit, University College London. [http://www.ucl.ac.uk/ dpu-projects/Global_Report/pdfs/Havana.pdf] Cutter, S. (1995) ‘Race, Class and Environmental Justice’, Progress in Human Geography 19: 107–18. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 261 Daly, H. E. and Farley, J. (2004) Ecological Economics: Principles and Applica- tions. Washington DC: Island Press. Davis, S. J. and Caldeira, K. (2010) ‘Consumption-based Accounting of CO 2 Emissions’, Proceedings of the National Academy of Sciences of the United States of America 107(12): 5687–92. Dello Buono, R. A. (1995) ‘An Introduction to Cuba in the Special Period’, in R. A. Dello Buono and J. Bell Lara (eds) Carta Cuba: Lessons from Cuba’s Special Period. Facultad Latino Americana de Ciencias Sociales Programa Cuba, Universidad de La Habana. Diaz-Briquets, S. and Perez-Lopez, J. F. (1993) ‘Water, Development, and Environment in Cuba: A First Look’, Cuba in Transition, vol. 3. Proceed- ings of the Third Annual Meeting of the Association for the Study of the Cuban Economy (ASCE), Florida International University, Miami, 12–14 August. Diaz-Briquets, S. and Perez-Lopez, J. F. (1995) ‘The Special Period and the Environment’, Cuba in Transition, vol. 5. Proceedings of the Fifth Annual Meeting of the Association for the Study of the Cuban Economy (ASCE), University of Miami, 10–12 August. Diaz-Briquets, S. and Perez-Lopez, J. F. (2000) Conquering Nature: The Envi- ronmental Legacy of Socialism in Cuba. Pittsburgh: University of Pittsburgh Press. Eckstein, S. (2009) ‘The Personal is Political: The Cuban Ethnic Electoral Policy Cycle’, Latin American Politics and Society 51(1): 119–48. Economist Intelligence Unit (2008) ‘Democracy Index 2008’. London: The Economist. Enoch, M., Warren, J. P., Valdés Rios, H. and Menoyo, E. H. (2004) ‘The Effect of Economic Restrictions on Transport Practices in Cuba’, Trans- port Policy 11(1): 67–76. Faber, D. (ed.) (1998) The Struggle for Ecological Democracy: Environmental Justice Movements in the United States. New York: Guilford Press. Faber, D. and O’Conner, J. (1993) ‘Capitalism and the Crisis of Environmen- talism’, pp. 12–25 in R. Hofrichter (ed.) Toxic Struggles: The Theory and Practice of Environmental Justice. Gabriola Island, BC: New Society Pub- lishers. Fernández, S. J. (2002) Encumbered Cuba: Capital Markets and Revolt, 1878– 1895. Gainesville: University Press of Florida. Ferriol Muruaga, A. (1997) ‘Política Social Cubana: Situación y Transforma- ciones’, Temas No. 11 (julio–septiembre). Freedom House (2008) Change in Cuba: How Citizens View their Country’s Future. Special Report. Washington DC: Freedom House. Funes Monzote, R. (2008) From Rainforest to Cane Field in Cuba: An Environ- mental History since 1492. Chapel Hill, NC: University of North Carolina Press. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 262 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) Goldsmith, E. (1993) ‘Development and Colonialism’, Ecoscript No. 35 (June). Gonzalez, C. (2003) ‘Seasons of Resistance: Sustainable Agriculture and Food Security in Cuba’, Tulane Environmental Law Journal 16 (Special Issue): 685–732. Guevara-Stone, L. (2009) ‘La Revolucion Energetica: Cuba’s Energy Revolution’, Renewable Energy World Magazine 12 [http://www.renewableenergyworld. com/rea/news/article/2009/04/la-revolucion-energetica-cubas-energy- revolution]. Hamilton, D. (2002) ‘Whither Cuban Socialism? The Changing Political Econ- omy of the Cuban Revolution’, Latin American Perspectives 29(3): 18–39. Harvey, D. (1996) Justice, Nature and the Geography of Difference. London: Blackwell. Heiman, M. K. (1996) ‘Race, Waste, and Class: New Perspectives on Envi- ronmental Justice’, Antipode 28(2): 111–21. Houck, O. A. (2003) ‘Thinking about Tomorrow: Cuba’s “Alternative Model” for Sustainable Development’, Tulane Environmental Law Journal 16: 521–32. Kapcia, A. (2008) Cuba in Revolution: A History since the Fifties. London: Reak- tion Books. Kaufman, H. (1993) ‘From Red to Green: Cuba Forced to Conserve Due to Economic Crisis’, Agriculture and Human Values 10(3): 31–4. Lambert, T. and Boerner, C. (1997) ‘Environmental Inequity: Economic Causes, Economic Solutions’, Yale Journal on Regulation 14(1): 195–234. Lavelle, M. and Coyle, M. (1992) ‘Unequal Protection: The Racial Divide in Environmental Law’, The National Law Journal S1–S2. Levins, R. (2005) ‘How Cuba is Going Ecological’, Capitalism Nature Socialism 16(3): 7–25. Lievesley, G. (2004) The Cuban Revolution: Past, Present and Future Perspectives. Basingstoke: Palgrave Macmillan. Ludlam, S. (2009) ‘Cuban Labour at 50: What About the Workers?’, Bulletin of Latin American Research 28(4): 542–57. Maal-Bared, R. (2006) ‘Comparing Environmental Issues in Cuba Before and After the Special Period: Balancing Sustainable Development and Sur- vival’, Environment International 32: 349–58. Maldonado, A. (2003) ‘Cuba’s Environment: Today and Tomorrow – An Action Plan’, Cuba in Transition Vol. 13. Papers and Proceedings of the Thirteenth Annual Meeting of the Association for the Study of the Cuban Economy (ASCE), Coral Gables, FL, 7–9 August. Martinez-Alier, J. (2003) The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation. Cheltenham: Edward Elgar. Mesa-Lago, C. (2002) ‘Growing Economic and Social Disparities in Cuba: Impact and Recommendations for Change’, Cuba Transition Project, University of Miami. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 263 Mesa-Lago, C. (2005) ‘The Cuban Economy Today: Salvation or Damnation’, Cuba Transition Project, University of Miami. Mesa-Lago, C. (2006) ‘Assessing Cuba’s Economy: Current and Future Capac- ity to Provide Social Justice’, presentation to Canadian Foundation for the Americas Ottawa, June. Morris, E. (2008) ‘Poverty and Inequality in Cuba Today: The Policy Chal- lenge’, presentation at the International Institute for the Study of Cuba, London Metropolitan University, October. Nielsen, B. (2003) ‘Sex in the Cornfield: Tassel Emergence & Pollen Shed’, Corny News Network [http://www.kingcorn.org/news/timeless/Tassels. html]. Oliveras, R. and Ricardo Núñez, R. (2004) ‘Urban Segregation in Havana: Policies, Instruments and Results’, Paper presented at the seminar ‘Pov- erty and Social Policy in Cuba: Addressing the Challenges of Social and Economic Change’. ONE (2008) Statistical Yearbook of Cuba. Havana: Office of National Statistics. [www.ONE.cu] Pandey, K. D., Wheeler, D., Ostro, B., Deichmann, U., Hamilton, K. and Bolt, K. (2006) Ambient Particulate Matter Concentrations in Residential and Pollution Hotspot Areas of World Cities: New Estimates Based on the Global Model of Ambient Particulates (GMAPS). Washington DC: The World Bank. Pastor, J. M., Sadd, J. L. and Hipp, J. (2001) ‘Which Came First? Toxic Facil- ities, Minority Move-in, and Environmental Justice’, Journal of Urban Affairs 23(1): 1–21. Pellow, D. N. (2007) Resisting Global Toxics: Transnational Movements for Envi- ronmental Justice. Cambridge, MA and London: MIT Press. PinderHughes, R. (1996) ‘The Impact of Race on Environmental Quality: An Empirical and Theoretical Discussion’, Sociological Perspectives 39(2): 231–48. Porritt, J. ([2005] 2007) Capitalism: As if the World Matters. London: Earth- scan. Pulido, L. (1996) ‘A Critical Review of the Methodology of Environmental Racism Research’, Antipode 28: 142–5. Raby, D. L. (2006) Democracy and Revolution. London: Pluto Press. Ramirez, R. (2005) ‘State and Civil Society in the Barrios of Havana, Cuba: The Case of Pogolotti’, Environment and Urbanization 17(1): 147–70. Regueiro, L. and Alonso, A. (2001) ‘La Experiencia Cubana en la Lucha Con- tra la Pobreza’, in Las Tres Caras de la Pobreza: República Dominicana, Puerto Rico y Cuba. Investigación sobre la Situación Social, Económica y Política de la Sub-región de Habla Hispana del Caribe. Consejo Mundial de Iglesias. Rodríguez, J. L. (1983) ‘La Llamada Cubanología y el Desarrollo Económico de Cuba’, Temas de Economia Mundial No. 7: 131–53. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 264 C R I T I C A L S O C I A L P O L I C Y 3 1 ( 2 ) Rodríguez, J. L. and Carrizo Moreno, G. (1987) Erradicación de la Pobreza en Cuba. Havana: Editorial de Ciencias Sociales. Roman, P. (2003) Peoples Power: Cuba’s Experience with Representative Govern- ment. Oxford: Rowman & Littlefield. Rosset, P. and Benjamin, M. (1995) The Greening of the Revolution: Cuba’s Experiment with Organic Agriculture. Sydney: Ocean Press. Saney, I. (2004) Cuba: A Revolution in Motion. London: Zed Books. Sawyer, M. Q. (2006) Racial Politics in Post-Revolutionary Cuba. Cambridge: Cambridge University Press. Schlosberg, D. (2004) ‘Reconceiving Environmental Justice: Global Move- ments and Political Theories’, Environmental Politics 13(3): 517–40. Schlosberg, D. (2007) Defining Environmental Justice: Theories, Movements, and Nature. New York: Oxford University Press. Schnaiberg, A. and Gould, K. (2000) Environment and Society: The Enduring Conflict. New York: St. Martin’s Press. Stanley, A. (2009) ‘Just Space or Spatial Justice? Difference, Discourse, and Environmental Justice’, Local Environment 14(10): 999–1014. Sustainable Development Commission (2003) Mainstreaming Sustainable Regen- eration: A Call to Action. London: Sustainable Development Commission. Taylor, J. H. L. (2009) Inside El Barrio: A Bottom-up View of Neighborhood Life in Castro’s Cuba. Sterling, VA: Kumarian Press. UCC (1987) Toxic Waste and Race in the United States: A National Report on the Racial and Socioeconomic Characteristics of Communities with Hazardous Waste Sites. New York: United Church of Christ, Commission for Racial Justice. UNEP (United Nations Environment Programme) (1992) ‘Rio Declaration on Environment and Development’. Uriarte-Gaston, M. (2004) ‘Social Policy Responses to Cuba’s Economic Crisis of the 1990s’, Cuban Studies 35: 105–36. Walker, G. and Bulkeley, H. (2006) ‘Geographies of Environmental Justice’, Geoforum 37(5): 655–9. Walker, G. and Eames, M. (2006) ‘Environmental Inequalities: Cross-Cutting Themes for the ESRC/NERC Transdisciplinary Seminar Series 2006–8’, discussion paper. Whittle, D. and Rey Santos, O. (2006) ‘Protecting Cuba’s Environment: Efforts to Design and Implement Effective Environmental Laws and Poli- cies in Cuba’, Cuban Studies 37: 73–103. Wilkinson, R. and Pickett, K. (2009) The Spirit Level: Why More Equal Societies Almost Always Do Better. London: Allen Lane. World Bank (2009) ‘Environmental Data by Country’. World Wildlife Fund (2006) ‘Living Planet Report’. Gland, Switzerland: WWF International. Yaffe, H. (2009) Che Guevara: The Economics of Revolution. London: Palgrave Macmillan. at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ B E L L — E N V I R O N M E N T A L J U S T I C E I N C U B A 265  Karen Bell has worked as a community development worker for over 20 years on issues of disability equality, anti-racism, community empowerment, environmental justice and economic regeneration. Since 2005, she has been engaged in community-based research projects on these topics and currently works part-time at the School for Policy Studies, University of Bristol. Address: School for Policy Studies, University of Bristol, 8 Priory Road, Bristol BS8 1TZ, UK. email: karen.bell@bristol.ac.uk  at EASTERN MICHIGAN UNIV on February 28, 2013csp.sagepub.comDownloaded from http://csp.sagepub.com/ 
work_bwsxiltwznhrhjwfqzpm6v4du4	----	Index action plan orders, 26 roY'usarial process. 13,70,93 alcohol problems, 25. 133, 134, 147 Alliance ofNon-govemmenw Organizations, 130 ancientwodd.l11 anti·social behaviour, 45 anti-social bebaviourorders, 164, 167 apologies,42, 86, 88, 135, 140, 143, 147 Argentina,S7 Australia: Aboriginal courts, 163 c~utioningcase.61 fIl.cilitators,70 &milygroup confc.rcncing, 113, 127, 137 incrcas.ing use of prison, 185 indigenous culturcs CIlStomaty law, 131 definition of crime.. 157-60 dispua: Iesolution, 115, 145 murder of wome~, 153 QlIetlt II Gj. 157-60 restorative justice, 29,81 introduction, 117 police and, 167,184 regulation, 184- victim traumas, 139 ),oungoffe:nders.147,148 b.u, 164,169,171,173 begging,45 Bdgiwn, 129 Bentham,Jeremy,35 Biden,] 0, 92 Bhgg,H,116,145,184 Blair, Tooy,34,36 bootca.mps, 170 Bottoms,A,112,119-20,166,174 BougainviUe.82 Braithwaite,]ohn, SO, 79, 111, 166, 110-1, 174,175 Buddhism, 111 bureaucr4C)',142 Canada: circles of support and accountability, 38-9, 163 sentencing circles. 113,117, 163 cautions, coodicionai cautions, 27-8 Chile, 87 Christie, NiLs, 9, 105 circle sentenciog,113, 117, 163 circles of support and accountability, 38--9, 90 civill2w systeIIUl, victims' role, 9 civil society, 19,36, 37,105,120,166,174, 175 dans, 112, 145 <:1"',54,112, 149, 164, 165,167,172, 175 co-existeocC!; JUcomplemc:nt:ary-approaeb~ coercion: coercion·oooseotstratcgies,l64 communities and, 177 neo-liberalismand, 169 offcnders,146-7 quali£icddefence, 57-60 state, 106 victims, 135 Coker,D,154,l64 colonialism, 153-4, 176 commonsense, 105--6,108-9, 122,131,161, 185 communication skills, 147--8 coatmUflitat:iaoism: civil liberties and, 35, 37-8, 40 eul.y tte2tises, 4 meming, 35-6 motalism, 121 New Labour, 34-5, 36, 37 reintegration, focus on, 121, 185 ri!;$tontive justice and, 34--40, 69 state and, 37-9 communities: absence of, 54-5 2ppropriate:panicipaots,I6-17,50-1 barriers, S5-6 chaos, 21-2 concept, 16 critique, 174-77 cultural attitudes, 157-60 dialogue, 40 emptiness, 22 engaging, ~7 190 Index communities (amI.): exclusionary communities, 61-2, 175 frngmaltedcommunitics, 91-5 G!tIJ!itlIdJtIji,19,119-22 heart of restorative! justice, 16-25 informaisanctions, 36-7 pi_SED, 17 pseudo-<ommunities, 20-1 social capital, 53, 54 soci2l construction, 175 stages of commuaity-building. 20-3 throtened by crimes, ~ true conununicies, ~3 community conkrCllces, 45-6 community payback,. 32 co=munity service, 14, 32 complementary approllchc..~: boundaries of proportiOt12lity. 60-9 ClISe for, 44-50 domestic violence, 80 facilitators, 69-71 faunewo<k.5~72. 95. 169 pyramid approaches, 48, 79 quali..fied defroce of cocrcion, 57--60 retributive/ restorative dichotomy, 40-4, 94,104-5 scope, 4 unexplored theories, 106 conditional cautions, 27--8 Confucianism, 111 consensus, 20, 40, 64, 69, 78. 155, 160, 177 Cook.K.149 corponte crimes, 11 courts lei crirninlll justice or;:rirne reporting. 134- aime victim surveys. 113,134 crimes: corpOnltt'- crimes, 11 cultural definition, 157-60 harms and, t 1-13, 137-8 l2.w, state and. 103, 162-7 POliCe.l1Ild criminalisation, 167-9 crimr=s ggainsthum1Ilicy,81-9. 118-80 criminal justice: class, race and gender. 41,133,164 complementary approaches sr6 comple- mentary approaches crimes against human1ty, 83-4 domestic violence and, 75-6,153 early :u:gume.nts against, 4 failllIe.122--3 formalism, 37 historical development, 8-9 meming,2-3 neo-liberal politics and, 125 Persephone mode~ 41 Portiamode~41 recent legislation authoriml3J1 approach to resoontive justice,146 hot criminological climate) 71-2 hypaactivity, 11, 26, 28-9 punitive trend, 128, 161, 166-7, 169-74, 182-3 US-UKc.onvergence,126 retributiVe/restorative dichotomy, 40-4, 94,104-5 treauncntofvictims, 141-5 truth and, 186-7 criminology ofhopc, 30-4 Crowley.Jim, 92-3 out",,, JU a/SOindjgenous cultures communities~d, 175 definition of crime and. 157-60 domestic violence and,153-4, 175-6 curfews, 164,170 customary law, 114, 131, 180 llily, Kathy, 103-4,111, 113,139, 169, 186 de2thpenaity,81, 115, 187 dcliberariveaccouotability. 63-5, 69, 90-1 Denmark, 129 dcteuence,Z, 116, 124,130, lG9, 173 devdopmcntof restorative justice: early arguments, 3-4, 186 globalisation, 102-3, 125-32 invented aaditiom.178-S0 myths of origin. 10>.--4, 109--17 over_intl <l.ted chi.rns, 94, 103 reasuns for rise. 118-25 search for legitimacy. 103-4 dialogue: oommunication skills lind, 148 community dialogue, 40 faciliuting, 52, 56, 59 murderers anu,74, 81 normative or moraliswg. 121 process, 7-8, 6(j restorative justice and, z., ]4, 74 domestic violenCe! rommunityand, 18,175-6 a:imin.at justice system and, 7~ 153 feminism and, 77. 118 minority women, 153 ofl'e:nder/victim ino!qruiliti@" 150-4 restorative justice :and, 75-81 laking seriously, 75--6 drug problems, 134, 147,166 dt.'e process, 10, 47, 70, 80, 83, 84, 94-5, 150, 183 Duff.And:.ony.42 ECOSOC,130 empowerment, 74, 77,132, 135, 136 Etzioni,Amitai, 35 evidence rules., 143 exciusionarypolicies, 31-.3. 61-2, 93, lOG exile, 115,116,145 facifuators: ~ptil;\td~. 69-71 identifying communities, 17-18 role, 7-8. 137-8 fiImilygroup conferences, 7,29,38,46, 110, 113,127,136-7 fumily justice centres, 76 fcardimatc, 31-2 feminism, 75-6, 77, 108, 118, 148--9, 151, 17H fines, 45, 122, 184- Fi!l.I!l.od,129 Fmnce,129 ga'{dtDCOutCS, IS, 82, 84-6, 1.31, 178-80 Gorland,D, 107, 123 g=lted communities, 55 Gares, Henry Louis, 92.-3 gender: criminal justice and, 41, 164 polic,,,,,d, 167 {estirution find, 112 I"e$toTlitive jllsricellnd. 148-9 viol.e.nce against women, 75-81,150-4 genocide, 82,83,84,89, 178-80 globalisation of.ttstorarlve justice, 102-3, 125-32 GoeJ,R. 153 g«i6ti,17,45,53,61 Guantlinanto Bay Detention Camp, 32 GuaternaI., 87 banns: crimes and, 11-13, 137-8 defining, 4 hate crime, 155-6 restorative justice processes and, 7 hare crimes, 68-9,155-6 Index 191 h~irrn8.41.73,74,83,89.102,109.110.114. 132,134,136 Hennan,j, 141-5, 152 Hinduism, 111 homelessrtess, 75, 133, 1.34, 163, 166, 173 homicide, 81, 153 homophobia. 18. 68-9. 155 human rightS Jee QUO due process commuaitarianism and, 35, 37-8, 40 complementary approaches, 95 gross abuses, 81-9 rights-ba~ed lI.pproach to restorative j1,lst- ice, 160 hybrid systeros, 15, 82, 85, 86 iOlmigrams, :,32, J3, 124, 176 incapacitation, 2, 31, 107, 124, 169, 170, 171, 173 incommensurability,157-60 indigenous cultures: colonialism and, 176 definition of crime, 157-60 disputeresolmion, 110-11, 113--17,145 invented traditions, 178--80 youths and restorative jllstice, 186 individualism, 40, 55 infonnal sanctions, 36-7 International Centre forTraositional Justice (let)), 178, 181 lntemational Criminal Court, 86 ictem:uional criminal bw, 84, 86 International Criminal Tribunal for Rwanda, 84,86 Intenllltional Crimi.nal TributULl for the Former Yugoslavia, 86 international humanitarian law, 86 Tntemet, 16 Inuit. 115 invented traditions. 178-80 Jones, Trevor, 126 just deserts principle, 60-1. 62, 103, 170, 183 Katstedt, Susanne, 43-4, 127 Kcyncsianism, 166 law,1'olc,162-7 law and order strategies, 34-5, 124, 125, 166-7 libeny,3H Lundy, P, 181-2 lynching, 62 192 Index MeCold., Paul, 1-2 McConville, Michael, 30 McGovl::tn,M,181-2 MljO!,Jolm,3S managerialism.119.120, 12B. 166. 169 Maoriculm.re.l10,117 marginaliSCd<:ommunlties, 70,165,166,172, 174-5 Marshall, Tony, 1,102 Marxism, 94 Megan's law, 31 memorials, 85, S6 mental illness, 134,147, 163, 174-5 minor oFfences: [estorative justice and, 5,26, 48, 72,172 victims aod,134 yomh offenders, U zero-tolerance policing anu, 168--9 misogyny. 156 mitigation evidence, 13 moral certainty, 122, 131,170,185 mocalism,121, 125, 185 Mugabc., Robed., 89 Muncie,J, 127 myths of origin, 103-4, 109-17 naming and shaming IU sbaming Navajo Nation. 114-15, 154 neighbour disputes. 45. 118. 125 rn:ighbouthood watch schemes.53,I23, 125 neo·liber.iliS[Il, 101, 12.,....5.127, 165,169, 173 noo-marxism,108 neutralisation techniques, 67~. 78 New Zealand: family group conferencing. 110, 127, 136-7 ~nous culblre, t 13 introduction of restorative justice, 116-17 serious offences, 73 youngoffi:nders, 29, 36 Newbum, Tun. 126 NgacinamanLaw, 157--60 non-citizens, .32 NouhtlQ.lrdand,29,182 Norway,129 Obo..., B_1., 91-2, 93 O'Connell, '1'_, 81 offendera JU d/so young offenders accounmbili ty, 7, 10, 21, 39, 52, 66,75, 119,121,170,173 acknowi<:dgm<:nt of offences, 44, 59 as victims, 134, 162-3 coercion, 146-7 dialogue with victims sn dialogue gender issues, 148-9 bbelJing, 133 neuttalisa.tion techniques, 67-8,78 offender-victim relationships lute crimcs • .6~9, 155--6 incommensurability, 157~.GO inc:qU2lities, 150-7 social inequality, 156--7 violence ag.riastwomcn, 75-81, 150-4 :;:eparation J84 reparation ~~ation,24-5,33,37,52 restorative jw:tice and, 132 critique, 146-9 focus on., 136 viewofaffendetS,121 shaming, 164 social conteJet, 12--13 stereotypes, 133-4 vicLim-ofbdCLbarric:n, 10--11 O'Malley, P,170, 183 Orientalism,116 othedng, 11,31-3,37, 107, 116 parenting orders, 164 parenbi.56-7 Pashukaois, E"'geny, 104 paternalism., 76,129 patriarchy,77,175-6 peace-making, 113,1 14, 154 physical punishm,m, 115-16 pilot studies, 28, 73-4.128.168 police: access to restorative justice and, 147, 167 as facilitators, 70 criminalisarion aod,167-9 de~nninationof guilt, 146--7 dome3tic violence wd, 75-6 increasedpo~-et$, 164., 167 public oroer offences and. 141 restorative justicemd, lOG, 167-8, 184 unaccountability, 167 zero-toletllJlcc.policing, 126,128, 16~9, 171 pollution, 1 t posocolanial..i:;m, t OS, 153, 176 postmodetnism, 108 poverty,11 powermequ;11ities, 108, 150-7, 177 Putt.),170 pte.modem penality, 111, 170 pre-sote societie$. 104, 110-11 , 117 prison: ·academia and, 33-4 es:ciusioIWY effect. 93 mass imprisonment, 107, 161, 164,16~7, 173,185 'prison works,' 28, 174 priwtisations,l26 reh2bilit:!.tion, 51 US and UK populations, 31 YOWlgoff"enders, 172-3 pri~tisttions,124, 126, 156, 165, 166 p,o-5oci,] behaviour, 25, 51, 52, 53, 56 probation officer.;, 51 probation services, 2. 3, 43, 71 PIOportiOtWity of punishme.nc ab:a.ndoning, 170 complementary appco3che.s Mel. 60-9 Uldigenous societies. 116 justomm,60-1,62, 103,170,183 reston.tive justice and. 50, 94, 183 retributive justic!:, 41 Rw=I2,84 public opinion., 62 punishmenc: pbilosophies,63 proportioo.ali.ty Itt proportionality of pun· ishmeot puaitive trend. 121:1, 161,166-7, 16,...74, 182-3 riskand, 171--4 pyWllid approaches~ 48, 79 qU2.lity of life offences, 45-6 Deism. 45, 92, 133, 15~, I64, 167,172, 175 recidivism, 49, 73,107,168 refcttalorders,27,129,146 relubilitation: p=digm. 2, 130 prison.,St ttStor.l.tive justice. 42-3, 113,169,170 .lUft £rom, 124 reintegration: ceremonies, 145 communita..c:WUsm, 121,185 complc01wtaryltpprollches,80 COc.cept, 50-1 d~th penalty and, 81 hannNl communiti~, 53-4 hybrid systel!1$, 86 .indigenous culrw:es and, 116, 145, 159 Index 193 objective, 2, 19 parents and, 56-7 po_odan pemlity, 170 pre.condjtions, 24, 89 procedures,27 reincegnuive shaming, 120,133,149 'llwnes V1ilI.c:y scheme, 39 re.tigiO\lS communities, 54 reparation: comp<lli.bi1ity,65 crimes 2f?inst humanity, 85, 86 domestic vioJence and, 151 gOfot"D"courts, 85 indigenous cultwes and, 116 morality Mel, 122 posanodcro potUlity, 170 pre-.&t2te socil!:ties, 111_1 2 proporoonau: reparation agreements, 60. 61,6~S restorative justice. 42 SA'l'RC,88 t::r:ansitional justice, 178 victim--onertt.ed,112 repara.uoo orders, ~ 146 repentance, 42 resoc.ialisation, 24-5. 33, 37,52 respect, testorttive jllstice and, 74, 75 responsibilisation.123-5, 165, 169, 173. 17<>-7 restitution m reparation restorative justice: communiarianism fttcomrnuniwiaoi.s.m complementary appfOJ.chcS IU comple~ mc:ntary approaches Core vt\lue5,40, 74,102 defitrltion, 1-2,102 development Judevclopmttlt of restOra· tivejusticc divctSion.122 divetsityof pmc:tices., 101-2 inclusiorwy emphasjs, 40 inte.mational business, 102-3,125-32 objectives, 6-7, 136, 169-70 pen>! policy framewoclt. 169-74 pre-(;oodirions, 89, 90-1 processes, 7-8 retributive/restOrative dichotomy I 40-4, 94,104-5 schobuship, 30-4,101 social movement, 183 theory v practice, 6, 26-40, 186 retribution: intemational justice, 8:>.-4 194 Index retribution (Cl)l1t.): just: desertS principle, 60--1, 62, 103,170, 183 paradigm. 3, 130 proportionality m proportionality of pun- ishmem rc:;toIlltivc justice and, 169-70 [etDbutive/tt:stOratlve dichotOmy. 40-4, 94,104-5 shift to, 124 Richards, K, 112-13, 122-3, 135 risk society, 32-3, 40, 107, 169, 171-4 Robben Island, 140 Rock,P,113 Rose,N,176 Rw.tnda: gd .. lJrpeourts. 15, 82, 84-6, 131, 178-80 public excl;UtiOns. 83 Sarah's law, 31 schoo~, 17,45,46-7,102-3 Scott Peck, Morgan.. 19-23 "ripC>, 133,138, 143, 148, 149,181,185 self-detc:nninatioD,117,118 sentencing $et QlIo prison cir.cle. sentencing, 163 COotcxtu:ill information, 43 clisproportionality,50 indetem:rinate sentences, 172 public opinion and, 62-3 pymmid :1ppt02ches. 48,79 re!>tonlcive justice:mel, 163 young offenders, 17 2-3 sentencing cizcles.ll.3. 117, 163 serious offences: crimes ag:alnsthumanity, 81-9, 178-80 domestic violenc::e, 75--81 homicide, 81 limits of restorative justice, 89-91 meaning. 72 restorative justice and, 49-50, 72-91, 172 ~tionaljustic~ 177-83 victim traumas, 138-41 sex offenders, 31, 38-9, 126,162,172 sc:xual violence, 81, 90--1, 138, 150, 152, 157-9 slwning. 31,115,120, 128, 133,145,149, 164,170-1 Shennan.La~enc~ lZ7 shuttlemediatiOD, 7.14. 59,61 sink estates, S6 socW capital, 53, 54 socilllconnectedness, 122, 131, 185 sochU engineering, S l-? social ineqwlity, 156-7 social justice. 11-12 social movements,11S,I86 social solidarity, 125, 177 South Afric:;a: apologi~, 140 TRC,82, 87-$, 102,178, 180-1 Spoin, 129 spo=r, 54 stakeholders,2, 8 sure! coercion, tOG commuaitarianism and, 37- 9 criminal justice and, 9 exdl.lsive deUnition of cmne, 103 Keynesianism,166 neo-liberalgovemance,l23-5 nightwatchman state, 166 pte-state: societies, 104, 110-11, 117 quasi-represenuti ... es, 185 rcguiation of restorative juscice, 106-7, 137--1!,165,184 .regulatory state, 166 u:prC!ltllLaUves, 7, 8, 137,138,185 role, 5, 162-7 state/civil society dichotomy, 105 stigmatisaaon, 32, 150, 152 sti~diuy magistr.l.lCS, 71 Stop and si!:U'Ch powcn, 167 Stubbs,J,156 T aoism, 111 TbJimcs Valley, 38-9, 70,127,136 ThatCher, Margaret,35 Timor Lesa=, 82, 182 TOnnics, Perdirwld, 19 transitionaljustic.e,15,82, 102, 177-83 truth,64, 83, 86, 109,112,117,179, 183--7 truth commissions, 15, 82, 178,180--2 Tsvangirai, Morgan, 89 Tutu, De:smond, 180 Umbte:it, Mark, 81 une:mployment, 11,165,172 United Nations, 30, 109, 115, 129-30 United StateS: crimi.o..a.ljustice, 126, 128 deolh p=>Ity, 81 dom~tic vio1ene<:, t 53 indigenonsculture:s, 113, 114-15. 154 Megan's law, 31 prison population, 31 racism, 92 rep:w.tion agreements, 61 restorative justice, 29, 81 sex offend~[S, 31 victims' rolc, 9,10 universalism,tO?, 109,131, 182, 185 Van Ness, Dan. 1-29 vandalism, 45 victim compensll.tloa orders, 14-15 victim impact statemcnts, 14-15, 43 victimsuppon services, 14-15 vktlms: 18th-cenwry England, 8 2S witne:lscs, 9. 143 civil law s~t'e[[1$, 9 closure, 59, 132 . coero.ao, 135 caaditioa.a1 cautions md, 27 crime victim surveys, 113,134 crimes ag.UI'lSl humanity and, 85-6 dialogue with offenders #r.dialogue empowenncu, 132. 135, 136, 142 healing II. healing ruslorical development of criInincl. justic~ 8--9 ideal victims, 132, 133-4 in"lU3lity,112 intemational criminal law Atld, 86 labelling. 133 offender-victim relationships hate crimes, 68.--9,155-6 inoommensunbility,157--60 inequalities, 15~7 socia1int:quality,15~7 violence~stwomen, 75-81,150-4 offende..rs as, 134,162-3 participation Jevels, 134-7 publiconi~toffcnecsand,140-1 radical feminism and, 77 reparation to 1« reparation rc;p.rqenLOl.tivc-'1, 18, 43. 141, 144, I SS ftstocative justice and usessmentofbene6c, 141-5 er:itiql.l~,132, 134--45 satisfaction., 132,144 ,haming.152, 159 stereotypeS. 133-4 stigma, 152 telling their stories, 142-3 traumas, 138-41 1l1dex 195 vengeful victims, 61-2, 66-7 victim-offender barricr:!l,10-11 victims' right move:me.nt, 112-13 viole:nce against women, 150-4 voluntarine:ss.57-9 Youth Offende:~P3..ncls Md,27 vittualcOtnmunities,16 vQIW)~riness, 57-60, 146--7 Wachtel, Ted,l-2 W::&ldman, E, 139, 140 Waluorf,L,179,181 WalkIate., S, 127 war c.rirn es, 82 "'hat woxks agenda.' 34, 127-8 Williams, N, t 45 Wright, M,136 x~ophobia, 175 Yolgt'lu people, 115, 145 young offenders: action plan orders, 26 apologies, 147 communication skills, 147--8 'rera.l youths,' 28, 56 indigenouscultw:eti,l86 minorv serious offenders, 172 Ne:wLabourpolicies, 127 New Zealand, 29,38 Northem Ixe1and, 29 parmts' rolein restorative justice., 56-7 . prison, 172-3 publicorderoffcnccs, 140-1 refe:nal orden, 27, 129, 146 rep:mtion orot:r::i, 26 resaciali.s2tion,52 lestorative justice and,S, 12~1 minority youths, 168 victims' reacdons, l44~5 victim participation, 136 whatwotks agenda, 127 ),Ou.U1 offcndq- p~m:h, 27, 129 yauch offe:nding teams, 26 youth res:o:a.tive disposals (YRDs), 2B YOllth SeMce Level Cue ~semcnt InventolY.171-2 Zeh<, How=!, 40. 41 zero-tolewu:e policing, 126, 128,1~9, 171 Zimbabwe:, 89-90 
work_bxmpwqnlm5bwrdd22wd6hzeklu	----	Science Magazine SIGNALING Controlling blood flow in the liver High blood pressure in the liver created by fibrosis causes serious clinical illness. Blood pressure is regulated by nitric oxide, but this is depleted if hepatic sinusoidal endothelial cells are damaged. The scaffold protein b-arrestin 2 (b-Arr2) regulates the activity of endo- thelial cell nitric oxide synthase (eNOS) in rodent liver. Liu et al. found that in rodents, b-Arr2, which serves several functions in G protein–coupled receptor signaling, helps to control eNOS at endothelin receptors. b-Arr2 promoted the association of another protein called GIT1 with eNOS, which activates eNOS. Apparently, b-Arr2 and other signaling components form a signalsome near the endothe- lin receptors, which regulates eNOS function. Disruption of this signaling contributes to the liver injury and portal hypertension that cause lethal liver disease in humans. —LBR Proc. Natl. Acad. Sci. U.S.A. 117, 11483 (2020). MIGRATION Should I stay or should I go? The global upheaval of seasonal bird migration is an astonishing phenomenon. The European blackcap is a species of small songbird that shows great varia- tion in wanderlust. Delmore et al. collected DNA-sequencing data from blackcaps across their breeding range to deter- mine the genetic basis for variations in migratory behavior. The impulse to migrate and the distance and direction of travel are encoded in small genomic regions. Polymorphisms were found in genes for transcription factors such as Clock, Npas2, and Bma1, which are associated with circadian rhythm. A few genes linked to traits as varied 1 2 0 2 12 JUNE 2020 • VOL 368 ISSUE 6496 sciencemag.org S C I E N C E R E S E A R C H | I N S C I E N C E J O U R NA L S Edited by Caroline Ash and Jesse Smith I N O T H E R J O U R NA L S being dependent on the size of the nanocube and electrically tunable, the results demonstrate a powerful platform with which to develop sensors in what has been a challenging wavelength regime where molecular finger- prints reside. —ISO Science, this issue p. 1219 MOLECULAR MACHINES Ten rings on one axle Rotaxanes consist of molecu- lar rings threaded on a central axle. Most approaches to their synthesis have focused on introducing a single ring per axle. Qiu et al. now report a system- atic approach to threading up to 10 adjacent rings consecutively. The axle’s end groups were con- structed to attract free-floating rings when reduced and then to push those rings toward the cen- ter upon oxidation. Products of each successive reduction-oxi- dation cycle were characterized by nuclear magnetic resonance spectroscopy and mass spec- trometry. —JSY Science, this issue p. 1247 INSECT LOCOMOTION Robot on a wire Studying the free flight of insects using artificial systems such as tethered flight or flight in confined environments can cause the insect to fly in an unnatural way. Pannequin et al. report a cable robot consist- ing of an open cage mounted with cameras, which they call “lab-on-cables.” The cable robot moves automatically with the flying insect by using reactive controllers to track the insect’s flight in natural conditions with limited disturbance. Using this system, the researchers were able to study Agrotis ipsilon moths flying freely at speeds of up to 3 meters per second. —MML Sci. Robot. 5, eabb2890 (2020). ICE SHEETS Taking stock of our losses Earth’s ice sheets are melting and sea levels are rising, so it behooves us to understand bet- ter which climate processes are responsible for how much of the mass loss. Smith et al. estimated grounded and floating ice mass change for the Greenland and Antarctic ice sheets from 2003 to 2019 using satellite laser altimetry data from NASA’s ICESat and ICESat-2 satellites. They show how changing ice flow, melting, and precipitation affect different regions of ice and estimate that grounded-ice loss averaged close to 320 gigatons per year over that period and contributed 14 millimeters to sea level rise. —HJS Science, this issue p. 1239 P H O T O S ( F R O M L E F T ): D O M IN IQ U E M A R T IN E Z ; S W A P A N B A N IK / A L A M Y S T O C K P H O T O A cable-driven robot capable of autonomous tracking of free- flying insects in three dimensions GENETICS Big cat genomics T he lion may be the king of beasts, but over the past ~14,000 years, their range has decreased substan- tially and many current populations are in decline. To understand the historical population genomics of lions, de Manuel et al. sequenced cave lion remains from ~30,000 years ago, several historic specimens from extinct populations over the past ~500 years, and samples from extant populations. From this, they were able to reconstruct relationships among lion populations over time. No evidence of gene flow between cave lions and recent lion populations was detected. Modern lion groups that diverged into northern and southern lineages show evidence of admixture, especially in extant central African populations. These data could be valuable not only because they indicate the relationships between modern and extinct populations but also because they reveal a historical level of inbreeding that could be rel- evant to conservation efforts. —LMZ Proc. Natl. Acad. Sci. U.S.A. 117, 10927 (2020). Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ responsiveness to civilian concerns. Wood et al. examined whether the introduction of a procedural justice training program for police officers in Chicago had an impact on encounters between police and civilians. It was found that fewer complaints were registered against officers who received the training, and trained officers were less likely to use force dur- ing civilian encounters. These findings have implications for designing scalable interventions that build police legitimacy. —TSR Proc. Natl. Acad. Sci. U.S.A. 117, 9815 (2020). MACHINE LEARNING Learning macro from micro Determining atomic structural correlations in condensed- phase systems is crucial for understanding material properties and their behavior single-stranded DNA that trans- ferred onto a gold nanoparticle bound inside the frame. On release, the particles could then undergo complementary strand binding with smaller gold nanoparticles to form clusters. By using different inks within the frame, gold particles of dif- ferent sizes could be assembled onto the central particle. The angles between the particles in these heterogeneous clusters could also be controlled through steric effects. —PDS ACS Nano. 10.1021/acsnano.0c00607 (2020). PSYCHOLOGY Procedural justice improves policing Research on procedural justice emphasizes the importance of treating people fairly regardless of the outcome they receive. Procedural justice strategies include increased transpar- ency, communication, and as hyperphagia and fat deposi- tion, learning and memory, and wing length also appear to be under strong selection to rapidly evolve new behaviors. The suite of blackcap migra- tory genes is distinctive, and it appears that there are many ways to genetically program migration in birds. —CA eLife 9, e54462 (2020). NANOMATERIALS Pattering nanoparticles with DNA origami Complementary DNA strands can be used to assemble nanoparticles through spe- cific connections, but creating multivalent directional connec- tions is still challenging. Xiong et al. used DNA origami—a two-dimensional open square and a three-dimensional tetra- hedron framework—to position DNA linkers on nanoparticles. These molecular stamping, or MOST, frames were “inked” with 12 JUNE 2020 • VOL 368 ISSUE 6496 1 2 0 3S C I E N C E sciencemag.org at the macroscale. It represents one of the central challenges in modern statistical mechan- ics because of the complex collective behavior emerging from microscopic many-body interactions. Using two classical condensed-phase models, a Lennard-Jones system and a hard-sphere fluid, Craven et al. show that machine learn- ing methods trained on a set of optimally short molecular dynamics simulations can predict radial distribution func- tions with increased accuracy by an order of magnitude or even greater compared with tra- ditional analytical approaches. The proposed methodology is general and could be applied more broadly across diverse condensed-phase systems. —YS J. Phys. Chem. Lett. 10.1021/ acs.jpclett.0c00627 (2020). NEUROSCIENCE Inositol-triphosphate receptors in axons Inositol-triphosphate (IP 3 ) receptors regulate the intracel- lular calcium concentration in the somatodendritic com- partment of central neurons. Whether axons also possess functional IP 3 receptors and what impact their activation might have are not known. Cerebellar Purkinje cells offer an ideal model because they contain a high level of IP 3 recep- tors. Using chromophore tags that release IP 3 when irradiated, Gomez et al. found that func- tional IP 3 receptors are present in the entire axon. Different axon regions displayed different IP 3 -producing pathways, and IP 3 receptor activation had differ- ent consequences depending on receptor localization. For instance, IP 3 receptor activation in synaptic terminals caused neurotransmitter release, and receptor activation in the axon initial segment blocked action potential firing. IP 3 receptor– linked signaling pathways may therefore be important in con- trolling axon functions. —PRS Proc. Natl. Acad. Sci. U.S.A. 117, 11097 (2020). Gir lions are a remnant population of a few hundred northern lions, mostly found in Africa, that are just surviving in India. Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ Procedural justice improves policing Tage S. Rai DOI: 10.1126/science.368.6496.1202-e (6496), 1202-1203.368Science ARTICLE TOOLS http://science.sciencemag.org/content/368/6496/1202.5 CONTENT RELATED file:/content/sci/368/6496/twil.full PERMISSIONS http://www.sciencemag.org/help/reprints-and-permissions Terms of ServiceUse of this article is subject to the is a registered trademark of AAAS.ScienceScience, 1200 New York Avenue NW, Washington, DC 20005. The title (print ISSN 0036-8075; online ISSN 1095-9203) is published by the American Association for the Advancement ofScience Science. No claim to original U.S. Government Works Copyright © 2020 The Authors, some rights reserved; exclusive licensee American Association for the Advancement of o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/content/368/6496/1202.5 http://www.sciencemag.org/help/reprints-and-permissions http://www.sciencemag.org/about/terms-service http://science.sciencemag.org/ 
work_bztzg73btrfp7hosyxz62dj4rm	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221738956 Params is empty 221738956 exception Params is empty 2021/04/06-03:20:37 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221738956 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:37 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_c422yiyhavdmvbun7qzztb4nwi	----	Newcastle University ePrints Walton A. Justice, Authority, and the World Order. Journal of Global Ethics 2009, 5(3), 215-230. Copyright: This is an Author's Accepted Manuscript of an article published in Journal of Global Ethics, December 2009, copyright Taylor & Francis, available online at: http://dx.doi.org/10.1080/17449620903403317 Always use the definitive version when citing. Further information on publisher website: http://www.tandfonline.com Date deposited: 11th October 2013 Version of file: Author final This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License ePrints – Newcastle University ePrints http://eprint.ncl.ac.uk javascript:ViewPublication(194585); http://dx.doi.org/10.1080/17449620903403317 http://www.tandfonline.com/ http://creativecommons.org/licenses/by-nc/3.0/deed.en_GB http://eprint.ncl.ac.uk/ A. Walton 1 RESEARCH ARTICLE Justice, Authority, and the World Order A. Walton 1 Department of Politics and International Studies, University of Warwick, Coventry, UK Abstract: This paper defends the pertinence of global justice in the contemporary world. It accepts, for the sake of argument, Nagel’s view that matters of justice arise only when political authority is asserted or exercised and, connectedly, his rejection of the cosmopolitan thesis. However, it challenges his conclusion that considerations of justice do not apply beyond the state. It argues that on any plausible account of the relationship between authority and justice international institutions, such as the World Trade Organisation, are now authoritative in the right way to justify their evaluation from the point of view of justice. Keywords: Justice, Authority, International Institutions, World Trade Organisation. Introduction Despite it often being said that we live in a global world, where borders are of decreasing significance, authors writing on matters of justice often still ‘assume that the basic structure is that of a closed society...self-contained and as having no relations with other societies’ (Rawls 2005, 12). This may be somewhat unfair. ‘Global justice’ is receiving an increasing attention in literature. Yet, it is also true that many are sceptical of this idea. In this paper I will challenge the views of a leading global justice sceptic, Thomas Nagel. The argument will be constructed as follows. First, I will introduce the global justice debate. Second, I will outline Nagel’s objection to the idea of global justice, which focuses on asserting an important place for authority in matters of justice. Third, without challenging Nagel’s overarching normative thesis I will argue that we should not accept his conclusion that there is no justice beyond the state because even if we accept the pivotal place he attributes to authority in matters of justice on any plausible understanding of the relationship there is now reason to think this has global application. In section four I address another dimension of the relationship between justice and authority: the idea that the realisation of the former requires an enforcement mechanism to provide assurance. I argue that even if this claim is valid it, for two reasons, does not follow that issues of justice do not have global application in the contemporary world. 1. Justice Throughout modern history the sovereign nation-state has been considered the primary, and often sole, site of justice and such thinking remained prevalent even amongst notable political theorists at the turn of the century (cf. Rawls 1999a; Rawls 1999b). This view takes a particular stance on two matters. First, there is the distinction between institutional and pre-institutional views of justice. The former holds that issues of justice arise only within certain types of associational schemes. The latter holds that justice is 1 Andrew Walton works at the Department of Politics and International Studies at the University of Warwick. Email: Andrew.J.Walton@warwick.ac.uk Journal of Global Ethics 2 a pre-institutional ideal which applies to all people in all places regardless of their institutional affiliations. Those that affirm the idea that justice applies only within states take an institutional approach. Second, there is the question of whether the institutional view of justice has application beyond the domestic level; whether, that is, global institutions qualify as ‘institutions’ such that they should be regulated by considerations of justice. Are they, in other words, the appropriate kind of institutions for issues of justice to arise? The state-based view answers “no” to this question. Given this typology, it is possible to challenge the state-based view in two ways. First, it could be argued that the institutional approach to justice favours its application at the global level because global affairs are relevantly institutional (cf. Pogge 1989; Beitz 1999). I shall return to this issue. It could also be challenged for holding that justice is an institutional virtue. Associational ties, it could be argued, are simply arbitrary features by which to structure justice. This is the view of many cosmopolitans (cf. Steiner 1994; Singer 2002; Caney 2005). Their challenge, in short, is that contingent facts (such as the geographical dominions of states) should not influence the life prospects of an individual because they are undeserved and therefore arbitrary from the moral point of view. The cosmopolitan thesis is certainly a forceful one. There have been a number of attempts to respond to it. Rawls gave his own reasons for refuting it (Rawls 1999b, 117-118). These, however, have been the subject of much criticism (cf. Martin 2006; Pogge 2006). The cosmopolitan claim has also been challenged by so-called ‘reciprocity’ accounts, which claim that justice applies only to schemes of cooperation of a certain sort and is therefore limited to the domestic realm where social interaction is of the right kind (cf. Sangiovanni 2007, 19-38). However, this will not suffice to defend the state-based view of justice for one of two reasons: either the definition of cooperation is relatively weak, in which case it is hard to deny that the relevant kinds of cooperation exist across borders, or the definition is relatively stringent (the approach adopted by Sangiovanni), in which case it becomes more difficult to believe that this is the only condition that initiates concerns of justice. Cooperation-based accounts of justice (especially of the reciprocity form) also face a more significant criticism (one that cosmopolitans are likely to endorses); namely, explaining why any concern is owed to those unable to contribute (such as the severely disabled). In addition, there have been other attempts to justify the traditional focus on the state as, at least, the historical focal point for considerations of justice, such as Julius’ assertion that different types of interpersonal co- option raise a requirement of justice (Julius 2006, 187-192). However, this too suffers from a major problem; namely, explaining why some types of co-option meet the criteria but others do not and, perhaps more importantly, why only co-option and not pure coercion require justification. 2. Justice and Authority This challenge to the idea of global justice is set forth by Thomas Nagel (2005). There are two parts to his position: a response to the cosmopolitan thesis and a claim that principles of justice do not apply to international institutions. He affirms, that is, the institutional approach to justice and the answer “no” to the question of whether this has application at the global level. In this section I will outline Nagel’s view. The challenge cosmopolitans establish for those that restrict the scope of justice to the state is this: if a domestic/international split in moral principles is to be affirmed its defender must show, as Caney puts it, ‘a reason can be given as to why the two contexts are morally disanalogous’ (Caney 2005, 66). Nagel attempts to meet this challenge by citing what he believes to be a distinctive feature: authority, by which he means, broadly, an entity that rules A. Walton 3 over a population (Nagel 2005, 120-121). Nagel suggests two reasons for thinking the existence of an authority is important. First, Nagel highlights what we may call Hobbes’ dilemma (Nagel 2005, 115-117). Hobbes argued that justice – a set of rules that served everyone’s self-interest if conformed to – was possible only with the assurance of widespread conformity. Such coordinated conduct of a large population can be achieved, Hobbes thought, only with a sovereign power. The point also extends to non-egoist theories of justice. All such conceptions rely on maintaining patterns of conduct and this, Nagel maintains, ‘requires the external incentive provided by the sovereign’ because it only needs a small number of defectors to unravel an entire system (Nagel 2005, 115-116). While domestic states do have such an actor, the lack of a global sovereign, the argument continues, renders global justice an illusion. I shall address the strength of this claim in section four. In this and the next section I shall focus on the second reason Nagel offers for supposing there is something unique about relations under authority (Nagel 2005, 126-130). He does not think, departing from Hobbes here, that the international sphere is a non-moral zone because he concedes that individuals have some human rights that do not depend on institutional relations. However, Nagel has a restricted view of the duties owed to others to whom we are not related through ties of authority: these consist of humanitarian duties and negative claims (such as the right to bodily integrity). By contrast, socio-economic rights and duties – the positive obligations of justice – are ‘fully associative’ (Nagel 2005, 127). They are ‘something we owe through our shared institutions only to those with whom we stand in a strong political relationship’ (Nagel 2005, 121). Why? It is due, Nagel thinks, to the particular involvement of citizen will in relation to authority. Authorities invoke our will by exercising power in our name and commanding our active cooperation in upholding the laws they prescribe. Of significance is the ‘complex fact – that we are both putative joint authors of the coercively imposed system, and subject to its norms’ (Nagel 2005, 128). That our will is invoked in this manner gives us a certain standing to ask for justification of the enforced rules. Moreover, it places us in a unique relationship with those with whom we share the position. As we are all equally subject to the parameters and requirements of the framework imposed in our collective name we are entitled to demand treatment as an equal. We are entitled to ask why the imposed framework places us in a particular social position and whether this displays consideration equivalent to that shown to our fellow citizens; otherwise our will has been co-opted to serve others. It is not, then, as cosmopolitan theorists assert, inequality per se that is objected to; it is imposed frameworks that generate inequalities which reflect unequal treatment. It is, in other words, the system of rights, rules, and distribution that invoke our collective will which requires legitimating in egalitarian form. The positive demands of justice this creates are an issue arising solely in the context of such authority because this puts ‘citizens...into a relation that they do not have with the rest of humanity, an institutional relation which must then be evaluated by the special standards of fairness and equality that fill out the content of justice’ (Nagel 2005, 120). In short, the cosmopolitan question is this: What makes the domestic realm morally distinct from the international? The second part of Nagel’s response has three components: a normative premise (N); a factual premise (F); and an ensuing conclusion (C). The argument is this: N: It is only an authority relation that raises the particular positive demands of socio- economic justice. F: Domestic institutions meet the criteria for issues of justice to arise – i.e. they are authorities in the relevant sense – but international ones do not. C: There is no justice beyond the state. Journal of Global Ethics 4 With other aims in this paper I do not have space to arbitrate between institutional and pre-institutional views of justice. For what it is worth, I believe some version of Nagel’s normative thesis is correct. In the dispute between the two positions on whether justice extends beyond the state though, it is sufficient to accept his normative position for the sake of argument because even on its own terms it fails to substantiate the negative conclusion. As I will now show, Nagel’s argument gains its purchase by remaining ambiguous in what he means by N. When his claim is disambiguated Nagel faces a dilemma: either he can maintain that justice does not apply at the global level by making implausible claims about the relationship between justice and authority or he can affirm a plausible account of this relationship but must then accept that it has application to international institutions. On any plausible understanding of N, that is, F is unsustainable and C, therefore, is not valid. 3. Justice, Authority, and the World Order 3.1. In essence, Nagel claims that because authority invokes the will of a governed population it is the initiator of concerns of justice. This, however, is an ambiguous claim and cannot be assessed without some further definition of what qualifies an actor as an authority in the relevant sense, or, perhaps more specifically, without more detail with respect to what constitutes invoking citizen will in the required way. There are, I think, three conceptions of authority Nagel might be advocating as the necessary condition for issues of justice to arise. First, it might be bodies with authorised power. Perhaps, that is, Nagel thinks that we must be, in a sense, co-authors of the rules that regulate society (at least indirectly by electing the government that devises them) for a collective framework to implicate citizen will in the appropriate sense. Second, Nagel could be referring to actors that assert the right to rule, bodies, that is, that claim they are justified in regulating citizens’ lives and that citizens, consequently, have a duty to obey them. The will is implicated insofar as citizens have reason to comply with its dictates. Third, it may be that authority is meant to imply any actor enforcing conformity with the law and rules. The rules established for the collective are of the collective insofar as they embody the non-voluntary framework in which citizens live their lives and which they must obey. By having no choice but to uphold and conform to them their will is procured. In this section I will argue that neither of the first two offers a plausible understanding of the connection between justice and authority but that while the third is more palatable employing it to defend N will not allow Nagel to maintain his conclusions on global justice because F is not sustainable on this definition. 3.2. Before I expand upon this argument it is worth pausing briefly to highlight the distinctive nature of the challenge I pose Nagel here. I am not the first author to criticise his views but, as a review of other critiques of his work will now show, the particular formulation of my critique is uniquely able to disarm his position because my view is sensitive to different possible interpretations of Nagel, while other criticisms are wedded to particular readings of his argument. There are several problems with the recent literature on Nagel, because his views are not always interpreted altogether charitably. A number of authors have characterised Nagel as suggesting that justice is initiated by coercion (cf. Caney 2008, 490; Pevnick 2008, 400). However, as will become clear in what follows (especially section 3.6.) and as noted by some others (cf. Sangiovanni 2007, 14-19), it is not obvious that Nagel equates authority with coercion, and a critique of his position is more forceful to the extent that it does not depend on such a disputed interpretation. A. Walton 5 Similarly, other critics who recognise the aforementioned ambiguity in Nagel’s position do not consider the alternative readings in a fair light. For example, although Julius (2006) and Sangiovanni (2007) note that Nagel could be interpreted as implying that justice arises in the context of an authority that makes some claim about the right to rule neither of them specify the authority relation in the sense that Nagel means it. Julius thinks it involves an equilibrium point between state claims of legitimacy and citizen acceptance of the law as having moral force (Julius 2006, 181). However, this conception of authority does not give a fundamental role to citizen acceptance. The only issue of relevance is how the authority sees itself. As such, Julius, who often focuses on the attitude of citizens (Julius 2006, 182, 186), misreads Nagel’s view. Sangiovanni’s interpretation is more promising but he argues that the claim right to rule is best interpreted as those institutions which establish non-voluntary rules (Sangiovanni 2007, 16-17). However, he dismisses too swiftly the idea that Nagel might be making the distinct claim that justice pertains to authorities that take a certain attitude to their citizens. Perhaps more importantly, other critics have neglected to highlight the ambiguity in Nagel’s claim about what constitutes an authority in the relevant sense. Paying attention to this ambiguity is crucial for disarming his position because any critique focused on a particular reading of Nagel (any, in fact, that considers a non-exhaustive list of the possible interpretations of Nagel’s account of authority) leaves Nagel easily able to escape by claiming he meant to imply an alternative conception of the justice-authority relation. 2 Those who interpret Nagel as offering a coercion-based account (cf. Caney 2008, 490; Pevnick 2008, 400) suffer this problem because Nagel can claim he meant to imply that justice is initiated by authorities that claim a right to rule or that are authorised by citizen consent. Those who claim that Nagel’s view can be cast as either a coercion-based account or one focused on authorities that claim a right to rule (cf. Julius 2006, 181; Abizadeh 351-352) suffer this problem because Nagel can claim he meant to imply authorities that are authorised by citizen consent. Given this difficulty, the most promising strategy for critique, therefore, is to distinguish the different possible interpretations of Nagel’s account of authority and show that each is either implausible as a conception of the conditions for justice to apply or fails to deliver the conclusion Nagel affirms because global institutions are authoritative in the appropriate sense. There are also a number of other ways my comments on Nagel depart from ideas offered in previous literature but these can be addressed in due course. With the major discrepancies in other accounts and the distinct nature of the challenge I pose Nagel highlighted I can now turn to formulating this argument in full. 3.3. Before addressing the conceptions of authority directly consider the following example: Pure Tyranny: The citizens of Country M live under the rule of a tyrant. The laws and policies that exist are those that he commanded. They are designed to keep the tyrant in power (censorship, no elections, the banning of political opposition, state- authorised torture and arbitrary arrest) and serve his interests at the expense of the people (serfdom, education for obedience to hierarchy, and lavish expenditures on monuments in his honour while the people starve). These are enforced by armed forces. 2 It should be noted here that not all the existing critiques of Nagel aim to provide a conclusive refutation of his view. Some, such as Sangiovanni (2007), criticise it primarily as a prelude to offering an alternative account of the conditions that initiate justice (and therefore restrict its application to the domestic sphere). This, of course, is merely a matter of having a different aim to that of this article but it does mean that conclusive refutation of Nagel has remained elusive. Journal of Global Ethics 6 Country M is unjust. Few, I think, will dispute that. There is certainly some form of authority so Nagel’s broad premise is upheld. Moreover, as we can acknowledge the existence of injustice it is clear the issue of justice is pertinent. Let us explore now which of the above conceptions can sustain this conclusion. 3.4. Some have thought that authority essentially amounts to authorised power. 3 Political institutions are unique, in part, because they employ coercion to enforce their laws but as coercion is typically deemed troublesome it is thought some special justification is required. One position on this is that the coercion of governments is unlike other forms because it is legitimised through citizen agreement. By collectively accepting an authority or a set of rules we give normative weight to the power to enforce. Our will is invoked in a very obvious way here and it may be this necessity for our authorisation that raises an egalitarian concern, possibly on the grounds that being entrusted with such power places a duty upon the authority to act responsibly, something that would entail fair treatment of each subject. Although this is the least emphasised connection between authority and justice Nagel seems to acknowledge there are suggestions it is what he deems of import. ‘Justice’, he states, ‘requires a collectively imposed social framework’ (Nagel 2005, 140) and when arguing present global institutions are not an appropriate site for justice his reasoning includes the thought that ‘they do not ask for the kind of authorization by individuals that carries with it a responsibility to treat all those individuals in some sense equally’ (Nagel 2005, 138). On this view Nagel’s argument would read as follows: N1: It is only citizen-authorised coercion that raises the particular positive demands of socio-economic justice. F1: Domestic institutions meet the criteria for issues of justice to arise – i.e. they are citizen-authorised coercive bodies – but international ones do not. C1: There is no justice beyond the state. This argument, however, is clearly false because neither premise is persuasive. F1 is not persuasive because even if it is correct in asserting that global institutions do not meet the criterion it is not correct in claiming that domestic governments do any better, at least not all of them. In order to be consistent, then, the conclusion would need to read that justice applies in some states but not others. This, however, does not defend a generic state-based view of justice and it does not align with our intuitions on where justice is at issue even in the domestic context. Nor does it align with our normative intuitions. The view would suggest that Country M is not a site in which we should be concerned with justice because citizens here have not authorised the tyrant’s power (they have not even had the opportunity to do so). This idea of invoking the will, in short, does not align with our intuitions concerning when issues of justice arise. 4 3 It is perhaps worth noting that this is a rather obscure view of authority. For a good review of its difficulties see J. Raz. 1990. Introduction. In Authority, ed. J. Raz, 1-19. (Oxford: Basil Blackwell). It is, nonetheless, one view of authority that has a clear connection to invoking citizen will so it is worth discussion here. 4 It is worth noting that the role of authorisation might have other functions in questions of justice. It might, for instance, be used to test whether a regime is just, for example by asking whether it is a regime to which individuals (á la Locke and Kant) (or possibly hypothetical individuals (á la Rawls)) could consent. We can, that is, state that the reason why the Tyrant’s regime is unjust is because citizens or hypothetical individuals could not consent to it. Such questions, however, do not pertain to the issue of what conditions initiate justice. Neither of these ideas, for reasons similar to those made about actual citizen authorisation, can offer plausible explanations of what initiates justice. A. Walton 7 3.5. The second conception is essentially that expressed by Raz and is the common idea of ‘authority over persons as centrally involving a right to rule, where that is understood as correlated with an obligation to obey on the part of those subject to the authority’ (Raz 1986, 23). The thought here is that an authority is an actor that claims its ‘utterances are themselves reasons for action’ (Raz 1986, 35) and that we should, we in fact have a duty to, adhere to them not because we will otherwise be forced to or because an authority adds extra weight to existing reasons for action but because they emanate from the particular source (Raz 1990). As such deferent alignment of our will is invoked it is necessary, for the demand to have any weight, that the authority can substantiate its claim to legitimacy and this can only be achieved by showing us equal treatment. 5 This is much closer to the idea Nagel seems to endorse. ‘Justice applies’, he says, ‘only to a form of organization that claims political legitimacy’, only to frameworks designed for citizens by an actor ‘aspiring to command their acceptance of its authority even when they disagree with the substance of its decisions’ (Nagel 2005, 140). The system’s ‘requirements claim our active cooperation’, and this differs from the manner in which our laws relate to outsiders because the latter are not ‘asked to accept and uphold those laws’ (Nagel 2005, 129- 130). On this view Nagel’s argument would read as follows: N2: It is only the existence of an actor claiming it has a right to govern the actions of citizens and, therefore, that citizens have a duty to comply with its dictates that raises the particular positive demands of socio-economic justice. F2: Domestic institutions meet the criteria for issues of justice to arise – i.e. they are actors that claim a right to rule and a duty of citizen compliance – but international ones do not. C2: There is no justice beyond the state. There are two problems with this argument. First, it is not clear that F2 is sustainable. Provided we separate the assertion of the right to govern from the ability to enforce, it might plausibly be suggested that the directives of the World Health Organisation or the International Labour Organisation involve a claim that the institution has the expertise to guide conduct and even that we have some form of duty to obey (particularly in the case of the latter). It certainly cannot be denied that the UN, especially in the instance of human rights, claims such authority. Perhaps more problematic is the evident falsity of N2, which can be seen by returning to the example set forth in 3.3. Here we are confident that concerns of justice are at issue. However, the ‘authority’ does not assert any right to rule or that the people have any putative duty to obey. He makes no claim that he is a legitimate guide for their actions and he makes no suggestion that because his guidance is legitimate citizens have an exclusionary reason to follow his dictates. Nagel considers a problem of this kind when he addresses the question of colonial rule (Nagel 2005, 129n14). He suggests that issues of justice do arise in such instances once we take ‘a broad interpretation of what it is for a society to be governed in the name of its members’ (Nagel 2005, 129n14). ‘If a colonial or occupying power claims political authority over a population, it purports not to rule by force alone’, Nagel continues, ‘it is providing and enforcing a system of law that those subject to it are expected to uphold as participants, and 5 It is worth noting that Raz does not endorse the conclusion that egalitarianism issues from the existence of authorities of this kind (on which see Raz 1986, 217–44). However, others do affirm the connection (see, for instance, Dworkin 2001, 1) and it is evident (based on quotes noted earlier in this paper) that if Nagel does mean to endorse this conception of authority then he does believe the demand for equal concern issues from it. Journal of Global Ethics 8 which is intended to serve their interests’ (Nagel 2005, 129n14). It is a little unclear to me what Nagel means here. 6 It could, I think, be one of two things. It could be the claim that colonial powers did make some assertion that they were the legitimate authority of colonised peoples. Simply stated this claim is empirically inaccurate at least in some instances. Alternatively, it could be that colonial powers can be thought to have purported to rule not by force alone if we relax the stringency of the idea. Perhaps, that is, colonial powers could be considered to have implicitly suggested that they were acting in the name of colonised peoples and this is sufficient. I still doubt this empirical claim because there are instances of colonial rule that do not meet it. Whatever the actual history though, the suggestion that justice relies in some way on this claim must still be false because we can imagine scenarios where no such claim is even implicitly made, such as Country M, but where we are sure justice is at issue. In essence, Nagel faces the following problem. He could formulate the suggestion as asserting that we relax the stringency so far that it includes all authorities that command conformity, in which case it amounts to no more than suggesting that questions of justice arise in the context of all non-voluntary institutions (the subject of the following subsection). Alternatively, he could make a distinct claim about some more stringent criteria associated with claiming a right to rule but however this is defined as different from the first possibility it will always leave space for some tyranny scenarios that do not meet it, in which case it will exclude instances where we are sure justice is at issue. Either, then, Nagel can assert N2 and maintain that issues of justice arise neither in the global order nor in (at least some instances of) tyranny or we can seek a view that accommodates the last of these and test its validity in the present international system. I will proceed on the assumption that most people will feel inclined towards the second of these options. 3.6. The final conception of the relationship between authority and justice I will discuss here is the contention that the latter is initiated by the unique demands made on citizen will by non-voluntary institutions. This is essentially the thought that what makes a political institution unique is that, to all intents and purposes, we have no choice but to obey it or even in whether we continue to live under its rule. Perhaps it is this special circumstance that Nagel thinks gives rise to issues of justice: because we are obliged to accept the rules of an authority and the social position they place us in, we are owed (equal) consideration in their design. Before assessing this view it is necessary to clarify a number of its components. First, the term non-voluntary here does not imply a situation in which individuals have literally no option to act otherwise but, rather, refers to a state of affairs in which one conforms because non-conformity is unreasonably costly. It follows Olsaretti’s suggestion that ‘a choice is voluntary if and only if it is not made because there is no acceptable alternative’ (Olsaretti 2004, 139). In the domestic context this is manifest in the fact that there are penalties for breaking the law and emigration is no more than a Hobson’s choice for most. This is not, as some might suggest, an attempt to employ a controversial thesis on what it means for state institutions to be non-voluntary. 7 It is the rationale Rawls relies upon (Rawls 2005, 136, 136n4) and it was the substance of Hume’s criticisms of Locke’ tacit consent thesis, in which the former points out that obedience to rules aboard a ship on which one did not choose to sail is not voluntary just because one is free to jump into the sea (Hume 1777, 485). Moreover, the alternative – that state institutions are non-voluntary in the sense that there is literally no alternative to conformity – is highly implausible because the possibilities of breaking the law and emigrating do exist (there is even a right to the latter). If justice only 6 I thank David Stevens for pushing me to think about Nagel’s assertion here in more depth. 7 I thank Ed Page for pushing me to respond to this challenge and highlighting that the idea of non-voluntariness here required more detail. A. Walton 9 arose in the literal absence of such possibilities it would only be at issue in extreme totalitarian states, if at all (given even the strictest regimes cannot actually stop people breaking the law). The view, then, is coherent only on the formulation that a non-voluntary system raises unique concerns because we have no reasonable alternative to conformity. 8 Second, it must be noted that this is not the claim made by some (cf. Blake 2001) that justice arises in the context of coercion. The view is similar and they are interesting for similar reasons: both involve certain types of impositions on people. However, they are distinct in what types of rules and regulation can be deemed concerns of justice. Coercion focuses on rules backed by the sanction of force. Non-voluntariness focuses on all rules that command conformity by establishing unreasonable alternatives to obedience. This includes but is not exhausted by coercion. The following points, therefore, apply to coercion-based accounts but are more extensive. There are a number of reasons for my focus on non- voluntariness. First, as I will show, Nagel’s choice of wording seems to suggest it is non- voluntariness he deems of relevance. Second, it is a more plausible idea about where justice is at issue. This is partly backed by the support for a broader interpretation from key authors, such as Rawls, who focused on ‘a public system of rules’ that was meant to include the non- coercive institution of the family (Rawls 1999a, 47 and 10 respectively) and Williams, who argues that Rawls’ intended focus was on all rules that could be made the property of public knowledge (Williams 1998, 233). It is also backed, following Williams’ observations, by the fact that only by interpreting the point in this manner can we properly address issues such as gender justice which is violated most through informal social sanctions (which are not coercive but are non-voluntary in the sense used here). Third, it is important to note the particular reason for thinking non-voluntariness raises a demand for equal treatment. As I note above, it is of concern because it involves a certain type of imposition on people. In particular, non-voluntary rules establish the framework and the distribution of rights and burdens under which individuals must live their lives. Because they are placed in a particular social position by these rules they are entitled to ask for justification and they are entitled to demand that they are treated equally. Otherwise a system has been imposed upon them that invokes their will for the benefit of others and this violates Kant’s famous maxim that people should not be treated as a means. This background justification for the normative significance of non-voluntary institutions is important because it is often overlooked, especially by those who focus only on the coercion-based understanding of the idea. Some attribute the significance of coercion to the manner in which it restricts an individual’s options. They then object to the claim that state coercion requires justification because this, unlike normal forms of coercion is actually a facilitator of options, justified by its positive consequences (cf. Pevnick 2008, 401-402). However, this misconstrues the significance of coercion. 9 It is not merely the fact that one’s option set is 8 It is sometimes objected to this cost-based understanding of voluntariness that an such conception faces a problematic dilemma: either accession to highly attractive offers (such as being paid a billion pounds to tie someone else’s shoelaces together) can be deemed non-voluntary because the alternatives are unreasonably costly (which seems to undermine the force of the term’s meaning) or the theory needs to set an objective baseline for what counts as an unacceptable alternative (a notoriously controversial task). For what it is worth I think a plausible account of the latter can be given. For the purposes here, however, I believe this is unnecessary. Even without a clear objective line we will be able to recognise circumstances in which we can agree the costs of alternatives are too high, situations in which the other options are unacceptable on any definition of unreasonable. As I think this is the case in what follows I will reserve further definition on this point. 9 Aside from the following criticism it is also worth noting that to think state coercion is justified by its positive consequences is not altogether plausible because it suffers the objection that if positive consequences are sufficient to justify coercion then almost any scheme of laws and redistribution can be considered just provided it improves on the state of nature. Journal of Global Ethics 10 affected by coercion that is of import. Rather, it is the concern that one’s life is structured in a particular way by the rules and this makes demands upon our will. We are asked to live with the social situation it places us in and uphold the laws even if we disagree with them. Because we are asked to bear this imposition we are entitled to demand equal justification. This is true regardless of the consequences of such imposition. The same mistake is made by Sangiovanni (2007, 13–14) with reference to non-voluntary rules. Sangiovanni thinks non- voluntary systems are necessary to preserve our autonomy and because of this beneficial consequence they do not require the same justification as coercion, but this is clearly false. If one has no reasonable exit option one must conform to rules and accept the social position in which they place her. In this sense, her will is still invoked by them and justification is still required. With these details clarified, we can now summarise Nagel’s argument on this view as follows: N3: It is only non-voluntary institutions that raise the particular positive demands of socio-economic justice. F3: Domestic institutions meet the criteria for issues of justice to arise – i.e. they are non-voluntary institutions – but international ones do not. C3: There is no justice beyond the state. This avoids the problems of aforementioned conceptions. In Country M the tyrant’s laws must be obeyed even though he is not authorised by the people and he does not claim a right to rule. We think his rules are unjust but the first step towards validating our opinion is verifying that matters of justice are at issue. The value of this conception is that it can achieve just that. N3, in other words, is plausible. Moreover, F3, under the specific definition of non-voluntariness adopted here, seems to correlate with some of Nagel’s assertions. Differentiating from minimum moral concerns, he states ‘political institutions are different because adherence to them is not voluntary’ and ‘[a]n institution that one has no choice about joining must offer terms of membership that meet a higher standard’ (Nagel 2005, 133). Arbitrary domestic inequalities and society’s laws are of special significance because we are bound ‘without being given a choice’ (Nagel 2005, 129). International institutions are different, Nagel continues, because, although they set forth rules, these agreements are just mutual self-interest bargains, controlled and financed by member states, attended by delegates representing separate states seeking to advance their own interests, and ‘mere economic interaction does not trigger the heightened standards of socioeconomic justice’ (Nagel 2005, 138). Nagel’s defence of F3, however, is unconvincing because there are international institutions, such as the World Trade Organisation (WTO), that are also non-voluntary. 10 This institution is attended by national delegates (amongst others) and its inception might 10 A similar point to this is acknowledged by Sangiovanni (2007, 18). However, Sangiovanni does very little beyond stating that the present international system is non-voluntary. While I agree with his point it will hardly suffice to refute Nagel’s thought that the present international system is voluntary. It merely begs the question. Here I will expand upon and prove the claim. It is also worth noting that as Sangiovanni says nothing to challenge the non-voluntariness conception normatively it is somewhat perplexing that he abandons it. To be sure, employing it does not allow him to draw his state-centric views about justice but this alone is no reason to discard the conception. If the view is normatively plausible then the conclusions that follow from it are those we should accept. Simply highlighting that as a view it leads to demands of global justice hardly qualifies as an objection to the view unless one assumes the conclusion that extra rempublicum nulla justitia. It is possible to deflect this criticism to a certain extent by providing a plausible alternative view that does restrict the scope of justice to the domestic realm. However, as noted above and as argued by Abizadeh (2008, 325-341, in particular 336-337), Sangiovanni fails to do even this. A. Walton 11 have relied on agreements between individual nations but it would be a mistake to think that it is now constituted by nothing more than a set of private contracts, established and easily revocable at state discretion. It now has a package of regulations and procedures that members must follow. To be sure, there is a formal right to withdraw but there is no genuine option to do so. The stigma associated with withdrawing and likely consequences for other areas of a state’s political and economic life would be far too high for us to consider this an ‘acceptable alternative’. This is evidenced by how much non-members are willing to sacrifice to join and by noting just how much relies on WTO membership in the present world. Given that members view each other as ‘most favoured nations’ any state that chooses to withdraw will lose its right to be treated non-discriminatorily which will mean not only an absolute decline in terms, and, therefore, gains, of trade but also a relative disadvantage, thus increasing the likelihood of losing trading agreements to others. Even aside from these direct costs, many, even the very wealthiest, have economies so ordered through WTO arrangements that this would cause structural chaos. Moreover, as it is so difficult to acquire International Monetary Fund and World Bank aid packages, or, for that matter, to gain much international credibility at all, without WTO affiliation a country can be confident of very little help with any troubles it faces. Its very existence, in other words, makes the option of being a non-member extremely costly; a point perhaps conclusively proven by the fact that despite continual complaints about WTO rules no state has ever even attempted to withdraw. It is hard to deny that membership is valuable and that there might be good reason to join voluntarily but this is true of many states. More importantly, the cost of non-membership is dramatic and if unacceptable costs are sufficient to deem domestic residence non-voluntary then inclusion in the world trade system qualifies too. In short, if what is important about authorities in matters of justice is that they establish non-voluntary frameworks then the condition is one that exists at the global level. There are three possible objections I can envisage to this. First, it could be suggested that I have exaggerated the non-voluntary nature of the WTO. That some states remain non- members shows, it could be argued, that the costs of being unattached are not sufficiently high to deem the option an unacceptable alternative. I do not think this objection succeeds, however, because the presence of non-conformers cannot substantiate this conclusion. In fact, they might be the exceptions that prove the rule. Let us examine this. To begin we can note that those that remain outside the system do suffer extreme consequences. North Korea is, for this as well as other reasons, in political exile while Turkmenistan’s economy is in dire straits (with unemployment and poverty figures both over 50%). These are costs which can surely be deemed excessive. If either country had succumbed to such pressures (or does so in the future) it would not be unreasonable to suggest that they had no genuine alternative. Even while they remain in dissent it would not be untenable to label their defiance as enduring costs greater than we would expect most to be able to bear. This would be sufficient then to maintain that those that remain in the system have no reasonable alternative to conformity and that their situation is non-voluntary in the relevant sense. There is nothing incoherent about this. There are people who violate laws and people who emigrate but this does not lead us to deem the state legal system is voluntary. Even when there is a full legal right of exit the idea still has application. Women within a legally gender neutral state who become housewives due to extreme social pressure are not usually thought to be acting voluntarily even if there are some who break the norm. For similar reasons, the existence of non-members should not lead us to think that alternatives to WTO membership are Journal of Global Ethics 12 reasonable or, accordingly, question the idea that it is a non-voluntary institution and a site of justice. 11 Second, it could be argued that although the WTO is a non-voluntary institution it is not analogous to the domestic state because it regulates only trade, whereas the latter establishes non-voluntary rules for many key areas of life. 12 This challenge, however, suffers a number of problems. If it is the thought that only trade is regulated in the international sphere then it ignores the plethora of global organisations that preside over at least as many areas of life as the domestic state. Alternatively then, it could be the thought that only trade is regulated by a non-voluntary institution and this is insufficient for issues of justice to arise. This idea would need supplementing by the (I think dubious) empirical claims that the WTO is the only non-voluntary international organisation and that it is an institution completely independent of others in the world order such that it should not be seen as the conformity- inducing branch of a broader scheme (because otherwise it would be hard to see the moral distinction between this and a government with an independent judiciary). However, let us set this problem aside and focus on the normative claim. This would appear to be the idea that the quantity of life-aspects regulated by an institution must be over a certain threshold for justice to be at issue, a concern perhaps motivated by the thought that institutions must have a significant impact for such matters to arise. This, however, is implausible, partly because it seems arbitrary, partly because the idea that the significance of impact must be beyond a certain level for it to raise moral concerns has been well refuted (Glover 1986), and partly because any qualification on the types of non-voluntary institutions that raise issues of justice will exclude scenarios in which we are certain justice is pertinent. If the Country M’s tyrant relinquished control over education would he thereby be excused the charge of injustice? Third, it is possible to suggest that the non-voluntariness of international institutions is not sufficient for issues of justice to arise between individuals worldwide because justice is only a concern between the individuals who are non-voluntarily implicated in the framework. For all that the WTO might be non-voluntary it is still only a structure for national representatives; it is not the collective framework of individuals. I am not sure how much this would show because even if the reasoning is valid it would still suggest there should be some concerns of justice within the ‘society of states’, which is more than Nagel wishes to accept. However, I do not think it can even achieve this much because we do not have any more genuine option to refuse conformity to the compacts agreed by our representatives than we do domestic laws. 13 Moreover, it is not merely that we are connected here through a third party. The laws passed down from the international system implicate us directly in a non- voluntary way. This is so in two respects. First, they are the product of a system which binds our governments who in turn bind us. That we have delegates interacting with the higher tier on our behalf does not sever the tie to our will because in this system these delegates merely become intermediaries through whom the rules are administered. There is, in other words, a transitive line of non-voluntary relationships between us and the global order: B (the state) is non-voluntarily bound by A (the global order); C (the individual) is non-voluntarily bound by B (the state); therefore C (the individual) is non-voluntarily bound by A (the global order). 11 One other possible consequence of acknowledging non-member states is that the argument above only suffices to show that there are concerns of justice between those involved in the WTO system and not those beyond. It might be necessary to accept this claim but it should be noted that even doing so will only restrict the scope of the claim to include fourteen less countries and two provinces. It should also be highlighted that this restriction would not apply to some of the other pillars of the international system, such as the UN. If we were to perceive the array of global institutions as one system (a basic structure with a number of parts) then there is no country that is not involved. 12 I thank Victor Tadros for bringing this concern to my attention. 13 This point I believe follows a line of reasoning similar to that of J. Cohen and C. Sabel. 2006. Extra Rempublicam Nulla Justitia? Philosophy and Public Affairs 34: 2: 147-175, pp. 166-168 A. Walton 13 Second, and perhaps more importantly, we are in one sense less free to extract ourselves from it. Given WTO laws pervade almost the entire planet, even if we could voluntarily leave our present country of residence we would be unlikely to escape them. We have almost literally no choice but to live under its rule. In short, if the arrangements bind us in the same non- voluntary way, both through the conformity of an authority which we must obey and directly, then they implicate our will by commanding conformity and they therefore raise issues of justice. Such then is Nagel’s dilemma. He can affirm N1 or N2 and face the charge that his understanding of the relationship between justice and authority is implausible. Alternatively he can accept the more plausible account given in N3 but he is then forced to accept that C3 is false because F3 is unsustainable. In other words, on any plausible reading of the relationship between authority and justice we must admit the latter applies at the global level. 4. Justice, Enforcement, and a Coercive World Order The point proffered in section three raises doubts over the second part of Nagel’s objection to global justice, but it may not be sufficient to refute his views for even with the engagement of citizen will it is possible the international system does not have other assets necessary for the issue to take hold. It may still remain hindered by Hobbes’ Dilemma. One could, that is, accept that the global order is unjust but argue, nonetheless, that without a sufficiently developed mechanism for guaranteeing obedience to the rules justice cannot be realised. This argument would read as follows: N4: Justice requires a method of collective enforcement to provide assurance of widespread conformity. F4: The domestic sovereign state can fulfil this role but present international institutions are not sufficiently powerful to do the same. C4: Global justice, even if a pertinent question, is a chimera. I am unsure whether N4 is sustainable. It is worth noting that states do not rely on coercive power alone to secure obedience and there are many examples of long-term cooperation achieved without force (consider the UK National Blood Service). As Caney notes, moreover, there are also alternative means of ensuring conformity (Caney 2005, 136- 139). On the other hand, it is certainly difficult to resist Hobbes’ thought because we have so often seen cooperation (especially in the name of justice) unravel due to the defection of only a few (consider the failures of the Kyoto Protocol). On many occasions no amount of noble motives on the part of some can bypass the obstinacy of others. This is what Ralph found in Lord of the Flies. However, we do not need to solve this puzzle because the above sequence fails regardless of N4’s validity. This is so for two reasons. First, even if we accept both the normative and factual premises C4 does not follow. This can be shown by simply stating a possible alternative conclusion, such as C4’: we should give our global institutions the power to enforce conformity. That there is no less logical consistency in N4-F4-C4’ shows that C4 is not a valid inference of the argument. If anything the latter seems the less obvious conclusion. Second, even aside from conceptual errors, the validity of the argument is questionable because F4 – the claim that there is no actor beyond the state with an enforcement mechanism – is empirically dubious. UN rules, for example, are backed by the legal recognition that sovereignty is violable if a state fails to meet its obligations. To be sure, the system is not perfect. The Security Council is renowned for its deficiencies and Journal of Global Ethics 14 there are numerous cases in which the system has failed to uphold the conventions. However, miscarriages of justice are not the same as there being no authority to enforce it. Not all domestic crimes are redressed (or even solved) but this does not imply the state should not be considered a coercive authority. In fact, that there was such outcry about the ineffectiveness of the Security Council in the delay over humanitarian intervention in, for instance, Rwanda, in part goes to show that the system is deemed to have some form of governance remit and is expected to enforce the rules. Perhaps this example will not convince some. Perhaps it will be argued that although the UN does have some enforcement criteria it does not have any enforcement capacity (its military forces are nothing more than assemblages of national armies at state discretion) and it can only “keep order” over weak states (not force powerful states to respect human rights (cf. Guantanamo Bay) or prevent unauthorised exercises of power (cf. the invasion of Iraq)). I am not convinced by these objections, not least because anomalies also arise in domestic states (such as riots or forms of political disobedience) and these do not raise doubt over the enduring capacity of the state system to enforce the law. Regardless, perhaps a more compelling example can be offered. On its gateway page it is stated that ‘the WTO’s procedure for resolving trade quarrels under the Dispute Settlement Understanding [(DSU)] is vital for enforcing the rules’ (WTO 2008). At this branch of the institution states can bring each other to account by filing reports against one another for not upholding WTO trade agreements. If the accused is found guilty it faces penalties for its transgressions. For example, the EC has faced heavy sanctions for its banana importation policy and its ban on hormone-fed beef (see WTO DS27 and WTO DS26 respectively). It has been widely used, seeing investigations of 181 disputes by July 2002, and it is worth noting that of the conclusions of these cases there has been ‘a successful implementation rate of 83%’ (Davey 2005, 46-47). This surely qualifies the WTO as a body with an enforcement mechanism. There are two objections I can envisage to this point. First, it might be claimed that this enforcement mechanism still remains a system implemented by the actions of states through interactional means of redress, not one involving higher powers. After all, the WTO notes that ‘ultimate responsibility for settling disputes...lies with member governments’ (WTO 2008). This poses little challenge though, because even if we accept that penalties within the system are enacted with one-to-one transactions it would not follow that they are not regulated by a higher authority. One could, in fact, imagine, in libertarian society for instance, a system of domestic law where the only major function of an arbitrating authority was to direct private actor disputes and recompense. Moreover, no matter how the WTO describes its operations it cannot be denied that final jurisdiction on disputes is the property of the institution’s panel. Second, one might claim that the DSU is merely a tool of the wealthy to enforce rulings on poorer states. I do not think this claim can be substantiated because although there are known complications with the DSU system for poorer states, some developing countries (notably India and Brazil) have made regular and effective use of it (Davey 2005, 40-45) and there have even been examples of David-Goliath type victories (cf. WTO DS285). Regardless, even if this objection could be substantiated it would only reinforce my argument: that injustice can be imposed upon some (the essential complaint) shows that the system has the capacity to enforce conformity, and, therefore, that it can do so fairly if so directed. In short, even accepting N4 we have good reason to doubt F4 and even accepting N4 and F4 we have good reason to doubt C4. We can only conclude, therefore, either that the world order has the capacities necessary to enforce justice or that we should enable it such. On neither account is there reason to believe that the idea of global justice lacks application. A. Walton 15 Conclusion Nagel argues that global justice is not pertinent in the present world because it is an issue only raised by a unique authority relation and possible only in the presence of an enforcement mechanism. The moral foundations of his view will be disputed by some. Such objection, however, may not even be necessary. In this paper I have shown that even if we accept his broad normative claim his conclusions are invalid because the two necessary conditions he cites for issues of justice to arise exist in the contemporary world order. We have, that is, a global system sufficiently developed to raise and (at least potentially) administer questions of justice even on an institutional conception. Acknowledgments I thank audiences at the Warwick Critical and International Studies Working Group and the Warwick Centre for Ethics, Law and Public Affairs for their comments on earlier drafts of this paper, and in particular Dominic Kelly, Victor Tadros and Edward Page for their inputs. I am especially grateful to Matthew Clayton for extensive feedback and discussion in the development of this paper. I also thank my two referees at the Journal of Global Ethics, David Stevens and Ronald Tinnevelt, for their suggestions and comments on how it needed improving. Reference List Abizadeh, A. 2007. Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice. Philosophy and Public Affairs 35: 4: 318-358. Beitz, C. 1999. Political Theory and International Relations. Princeton: Princeton University Press. Blake, M. 2001. Distributive Justice, State Coercion, and Autonomy. Philosophy and Public Affairs. 30: 3: 257-296. Caney, S. 2005. Justice Beyond Borders: A Global Political Theory. Oxford: Oxford University Press. Caney, S. 2008. Global Distributive Justice and the State. Political Studies 56: 3: 487-518. Cohen, J., and Sabel, C. 2006. Extra Rempublicam Nulla Justitia? Philosophy and Public Affairs 34: 2: 147-175. Davey, W.J. 2005. The WTO Dispute Settlement System: The First Ten Years. Journal of International Economic Law 8: 1: 17-50. Glover, J. 1986. ‘It Makes No Difference Whether or Not I Do It’. In Applied Ethics, ed. P. Singer, 125-144. Oxford: Oxford University Press. Hume, D. 1777. Essays: Moral, Political, and Literary. E.F. Miller, ed. Indianapolis: Liberty Fund, 1985. Journal of Global Ethics 16 Julius, A.J. 2006. Nagel’s Atlas. Philosophy and Public Affairs 34: 2: 176-192. Martin, R. 2006. Rawls on International Distributive Economic Justice: Taking a Closer Look. In Rawls’s Law of Peoples: A Realistic Utopia?, eds. R. Martin and D.A. Reidy, 226- 242. Oxford: Basil Blackwell. Nagel, T. 2005. The Problem of Global Justice. Philosophy and Public Affairs 33: 2: 113- 147. Olsaretti, S. 2004. Liberty, Desert and the Market: A Philosophical Study. Cambridge: Cambridge University Press. Pevnick, R. 2008. Political Coercion and the Scope of Distributive Justice. Political Studies 56: 2: 399-413. Pogge, T. 1989. Realizing Rawls. London/Ithaca: Cornell University Press. Pogge, T. 2006. Do Rawls’s Two Theories of Justice Fit Together? In Rawls’s Law of Peoples: A Realistic Utopia?, eds. R. Martin and D.A. Reidy, 206-225. Oxford: Basil Blackwell. Rawls, J. 1999a. A Theory of Justice (Revised Edition). Oxford: Oxford University Press. Rawls, J. 1999b. The Law of Peoples. Cambridge, Massachusetts: Harvard University Press. Rawls, J. 2005. Political Liberalism (Expanded Edition). New York: Columbia University Press. Raz, J. 1986. The Morality of Freedom. Oxford: Clarendon Press. Raz, J. 1990. Introduction. In Authority, ed. J. Raz, 1-19. Oxford: Basil Blackwell. Raz, J. 1990. Practical Reason and Norms. Princeton: Princeton University Press. Sangiovanni, A. 2007. Global Justice, Reciprocity, and the State. Philosophy and Public Affairs 35: 1: 3-39. Singer, P. 2002. One World: The Ethics of Globalization. New Haven: Yale University Press. Steiner, H. 1994. An Essay on Rights. Oxford: Blackwell. Williams, A. 1998. Incentives, Inequality and Publicity. Philosophy and Public Affairs 27: 3: 225-247. World Trade Organisation. 2008. Dispute Settlement. Available at http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm A. Walton 17 World Trade Organisation. Dispute DS26: European Communities – Measures Concerning Meat and Meat Products (Hormones). Available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm World Trade Organisation. Dispute DS27: European Communities – Regime for the Importation, Sale and Distribution of Bananas. Available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds27_e.htm World Trade Organisation. Dispute DS285: United States – Measures Affecting the Cross- Border Supply of Gambling and Betting Services. Available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds27_e.htm http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm 
work_c65pbgivdrfhzg7npqdqh77sku	----	Microsoft Word - 12A_teubner_uk.doc European Journal of Legal Studies Special Conference Issue: “Governance, Civil Society and Social Movements” Edited jointly by Michael Blecher, Giuseppe Bronzini, Jennifer Hendry, Christian Joerges and the EJLS Justice Under Global Capitalism? Gunther Teubner VOLUME 1 NUMBER 3 2008 P. 1-8 1 Justice Under Global Capitalism? Gunther Teubner * Double Diagnosis: Clash of Rationalities, Re-socialisation of Conflicts Globalised capitalism cannot be understood as being driven by economic processes alone. The alternative to conventional ideas of an economy-led form of globalisation is “polycentric globalisation”. The primary motor is an accelerated differentiation of society into autonomous social systems, each of which expands beyond territorial boundaries and constitutes itself globally. This process is not confined to markets alone but also encompasses science, culture, technology, health, the military, transport, tourism and sport, as well as, albeit in a clearly more restricted form, politics, law and welfare. 1 When describing the external relations between these global villages, the term “clash of cultures” is appropriate. Through their own operative closure, global functional systems are free to intensify their own rationality without regard to other social systems or, indeed, regard * Johann-Wolfgang von Goethe Universität, Frankfurt 1 Various social theories on legal globalisation make this point: on theories of global culture see, for example, J.W. Meyer, J. Boli, G.M. Thomas and F.O. Ramirez, “World Society and the Nation-State”, in American Journal of Sociology 103/144 (1997); on discourse analysis, see A. Schütz, “The Twilight of the Global Polis: On Losing Paradigms, Environing Systems, and Observing World Society”, in G. Teubner, ed., Global Law Without A State, 257ff; on global legal pluralism, see B. de Sousa Santos, Toward A ew Legal Common Sense: Law, Globalisation & Emancipation (London: Butterworths, LexisNexis, 2003) passim; on global civil society, see D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity, 1995), passim; on world society, see the contributions in M. Albert & L. Hilkermeier, eds., Observing International Relations. iklas Luhmann and World Politics (London, New York: Routledge, 2004) 2 for their natural or human environment. Ever since the pioneering analysis of Karl Marx, repeated proof has been provided as to the destructive potential of a globalised economic rationality. Max Weber deployed the concept of modern polytheism in his efforts to identify this potential within other areas of life, and to analyse the resulting (and threatening) rationality conflicts that can arise. In the meantime, the human and ecological risks posed by other highly specialised global systems, such as science and technology, have also become readily apparent to a far broader public. Similarly, and especially where the position of countries within the southern hemisphere is considered, it is clear that real dangers are posed less by the dynamics of international politics and more by economic, scientific and technological rationality spheres that instigate a “clash of rationalities”. In Niklas Luhmann’s central thesis, the underlying cause for post-modern risks is to be found within the rationality maximisation that different globally active functional systems are engaged in, which hides an enormous potential for endangering people, nature and society. 2 Problems raised by global finance markets, hedge funds, financial speculation, pharmaceutical patents, drugs trade, and reproductive cloning, for example, are caused by the fragmented and operationally closed functional systems of a global society in all their expansionist fervour. A reversal, or a turn towards the de-differentiation of society and a resurrection of old myths, is also excluded if the civilising achievements of this highly ambivalent development are to be retained: ‘[T]he sin of differentiation can never be undone. Paradise is lost.’ 3 In the eighties of the last century, Habermas diagnosed a conspicuous trend in the crisis of late capitalism: explosive social conflicts have been moved from the private markets to the welfare 2 N. Luhmann, Die Gesellschaft der Gesellschaft, (Frankfurt/M: Suhrkamp, 1997), at 1088 et seq. 3 N. Luhamnn, Die Wirtschaft der Gesellschaft (Frankfurt/M: Suhrkamp, 1994), at 344. 3 state institutions. 4 Today we can observe a reversal of this trend: explosive political conflicts that were formerly absorbed within the diverse regimes of the welfare state do not vanish after privatisation; rather, after the take-over by the market, these conflicting energies move back from welfare state institutions to private markets and re-emerge there in new forms. It is now the new private regimes of governance that have to cope with them, but they cannot be resolved by market mechanisms. As a result, privatised activities will be driven into a new politicisation. This re-politicisation is not necessarily limited to the establishment of public law regulatory agencies, however, but also entails the politicisation of private governance itself, its different modes of self-regulation and conflict resolution via private litigation. The sources of this conflict can be identified in those privatised activities that have to bear the clash of rationalities themselves, the structural tensions between their proper rationality and economic calculation – professionals as well as clients suffer from those tensions. Here, in the resistance of social practices to their new economic regime, is the source of all kinds of new quasi- political conflicts, which now take place within the “private” spheres. 5 A good indicator for this change is the growing intensity of political fights between regulatory agencies, consumer groups, regulated companies and their shareholders that we are presently witnessing, and the extent to which protest movements and other forms of civic resistance are switching their targets from political to economic institutions. There is also the strange alliance between civic 4 J. Habermas, Legitimation Crisis (Cambridge, UK: Polity, 1975) 5 For what these changes mean for private law, see G. Teubner, “In the Blind Spot: The Hybridization of Contracting” (2007) Theoretical Inquiries in Law 1/4/8, at 51-71; G. Teubner, “Global Private Regimes: Neo- spontaneous Law and Dual Constitution of Autonomous Sectors?” in K-H. Ladeur, ed., Public Governance in an Age of Globalisation (Aldershot: Ashgate, 2004); Gunther Teubner, “Contracting Worlds: Invoking Discourse Rights in Private Governance Regimes”, Social and Legal Studies 9 (2000) at 399-417 4 protest movements and mass media speaking up in the name of ethics against a comprehensive economisation of activities which damages their integrity. Social and Legal Counter-Movements Societal constitutionalism is not limited to a tendency within the law; rather, it designates a series of social counter-movements directed against the destructive aspects of functional differentiation. These counter-movements coerce expansive social systems to self-restriction. 6 In particular, fundamental rights are not just judicially protected rights of individuals against state power as lawyers usually see them, but are much broader social counter-institutions that, after long-term conflicts, emerge inside expansive social sub-systems and serve to restrict this expansion from within. Historically, basic rights have emerged in reaction to the emergence of autonomous spheres of action in modern society, especially in response to the matrix of autonomised politics. As soon as expansionist tendencies that threatened the integrity of other autonomous areas of society became evident in politics, turbulent social conflicts ensued. Expansionist tendencies have manifested themselves historically in very different constellations; in the past, mainly in politics but today, mainly in economics, science, technology and other sectors of society. If the core task of political basic rights was to protect the autonomy of spheres of action from political instrumentalisation, then the central task of 6 For details see, G. Teubner, “The Anonymous Matrix: Human Rights Violations by ‘Private’ Transnational Actors” in Modern Law Review 69 (2006) at 327-346; see also G. Verschraegen, “Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory” Journal of Law and Society 29 (2002) at 258-281; K-H. Ladeur, “Helmut Ridders Konzeption der Meinungs- und Pressefreiheit in der Demokratie” in Kritische Justiz 32 (1999) at 281-300; C. Graber and G. Teubner, “Art and Money: Constitutional Rights in the Private Sphere” Oxford Journal of Legal Studies 18 (1998) at 61-74 5 “social basic rights” has become to make it possible to safeguard so-called non-rational action logic against the matrix of the dominant social trends towards rationalisation. 7 Human rights, therefore, cannot be limited to the relation between State and individual, or the area of institutionalised politics, or even solely to phenomena of power in the broadest sense. Specific endangerment of physical and mental integrity by a communicative matrix comes not just from politics but, in principle, from all social sectors that have expansive tendencies. For the matrix of the economy, Marx clarified this particularly through such concepts as alienation, autonomy of capital, commodification of the world, exploitation of man by man. Today we see – most clearly in the writings of Foucault, Agamben, and Legendre – similar threats to human 7 This is the core idea of societal constitutionalism developed by D. Sciulli in his Theory of Societal Constitutionalism (Cambridge: Cambridge University Press, 1992) at 21 ff.; see also D. Sciulli, Corporate Power in Civil Society: An Application of Societal Constitutionalism (New York: New York University Press, 2001) at 131 ff. For an elaboration, G. Teubner, “Societal Constitutionalism: Alternatives to State-centred Constitutional theory?” in C. Joerges, I-J. Sand and G. Teubner, eds., Constitutionalism and Transnational Governance (Oxford: Hart, 2004), 3-28. For the related concept of constitutional pluralism beyond the nation state, see N. Walker, "The Idea of Constitutional Pluralism", 65 Modern Law Review 65 (2002) 317-359 and N. Walker, “Taking Constitutionalism Beyond the State”, RECON Online Working Papers (2007)1-18; C. Walter, “Constitutionalizing (Inter)national Governance: Possibilities for and Limits to the Development of an International Constitutional Law”, German Yearbook of International Law 44 (2001) 170-201; H. Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets, (Oxford: Hart, 2005), 161 ff.; For a parallel diagnosis in the “new economic constitutionalism”, see J. Tully, “The Imperialism of Modern Constitutional Democracy”, in N. Walker & M. Loughlin, eds., The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: OUP, 2007) 315-338 6 integrity from the matrices of the natural science, of psychology, the social sciences, technology, medicine, the press, radio, television, and telecommunications. 8 The human rights question in the strictest sense must today be seen as a response to the endangerment of individuals’ integrity of body and mind by a multiplicity of anonymous and globalised communicative processes. It now becomes clear how a new “equation” replaces the old “equation” of the horizontal effect. The old one was based on a relation between two private actors – private perpetrator and private victim of the infringement. Now, in the new equation, one side is no longer a private actor as the fundamental rights violator, but rather the anonymous matrix of an autonomised communicative medium. Similarly, the other side is no longer simply the compact individual – now on this side of the equation the fundamental rights have to be systematically divided into three dimensions: - Institutional rights protecting the autonomy of social discourses – the autonomy of art, of science, of religion – against their subjugation by the totalising tendencies of the communicative matrix. By protecting social discourses against the totalitarian tendencies of science, media or economy, fundamental rights take effect as “conflict of law rules” between partial rationalities in society. - Personal rights protecting the autonomy of communications, attributed not to institutions, but to the social artefacts called “persons”. - Human rights as negative bounds on societal communication, where the integrity of individuals’ body and mind is endangered by a communicative matrix that crosses boundaries. 8 G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998), 15 et seq.; M. Foucault, Discipline & Punish: The Birth of the Prison, (London: Penguin Books, 1991); P. Legendre, Leçons VIII. Le crime du caporal Lortie. Traité sur le père (Paris: Fayard, 1989) 7 However, even after such a reformulation of the human rights concept, the nagging question remains: can one discourse do justice to the other? This is a problem the dilemmas of which have been analysed by Lyotard, 9 but it is at least a problem within society, one Luhmann sought to respond to with the concept of justice as socially adequate complexity. 10 The situation is still more dramatic in terms of human rights in the strict sense, located as they are at the boundary between communication and the individual human being. All the groping attempts to juridify human rights cannot hide the fact that this is a strictly impossible project. How can society ever “do justice” to real people if people are not its parts but stand outside communication, if society cannot communicate with them but at most about them, indeed not even reach them but merely either irritate or destroy them? In the light of grossly inhuman social practices, the justice of human rights is a burning issue, but one which has no prospect of resolution. This has to be said in all rigour. If a positive concept of justice in the relation between communication and human beings is definitively impossible, then what is left, if we are not to succumb to post-structuralist quietism, is only second best. In the law, we have to accept that the problem of the integrity of body and mind can only be experienced through the inadequate sensors of irritation, reconstruction and re-entry. The deep dimension of conflicts between communication, on the one hand, and mind and body on the other, can at best be surmised by law. The only signpost left is legal prohibition, through which a self-limitation of communication seems possible, but even this prohibition can only describe the transcendence of the other allegorically. This 9 J-F Lyotard, The Differend: Phrases in Dispute (Manchester: Manchester Univ. Press, 1988), cif. 1 et seq. 10 N. Luhmann, Rechtssystem und Rechtsdogmatik (Stuttgart: Kohlhammer, 1974); N. Luhmann, Ausdifferenzierung des Rechts: Beiträge zur Rechtssoziologie und Rechtstheorie, (Frankfurt: Suhrkamp, 1981) 374 et seq. 8 programme of justice is ultimately doomed to fail, and cannot, with Derrida, just console itself that it is “to come, à venir”, 11 but it has to face up its being, in principle, impossible. The justice of human rights can, then, at best be formulated negatively. It is aimed at removing unjust situations, not creating just ones. It is only the counter-principle to communicative violations of body and soul, a protest against inhumanities of communication, without it ever being possible to say positively what the conditions of humanly just communication might be. 11 J. Derrida, “Force of Law: The Mystical Foundation of Authority”, Cardozo Law Review 11 (1990) 919 et seq., at 969. 
work_c7jpr6l5sbd7nk2kkiq7hfwzci	----	None 
work_c7spfsgo2nf3ncqs6bucnj6xcy	----	Justice Reinvestment: Vision and Practice CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Annual Review of Criminology Justice Reinvestment: Vision and Practice William J. Sabol and Miranda L. Baumann Andrew Young School of Policy Studies, Department of Criminal Justice and Criminology, Georgia State University, Atlanta, Georgia 30303, USA; email: wsabol@gsu.edu Annu. Rev. Criminol. 2020. 3:317–39 First published as a Review in Advance on October 7, 2019 The Annual Review of Criminology is online at criminol.annualreviews.org https://doi.org/10.1146/annurev-criminol-011419- 041407 Copyright © 2020 by Annual Reviews. All rights reserved Keywords reinvestment, community, corrections, cost efficiency, public safety, incarceration Abstract Justice reinvestment was introduced in the early 2000s as a means to respond to the massive growth in incarceration in the United States that had oc- curred during the past three decades by diverting offenders from prison and redirecting a portion of the associated corrections expenditures into com- munities to build their capacities to manage offenders locally. Over the next 17 years, the concept evolved into a Congressionally funded federal grant program that shifted the focus of reinvestment away from community rein- vestment and toward a state-agency practice improvement model that ulti- mately aimed to improve public safety. A distinct form of justice reinvest- ment, the Justice Reinvestment Initiative ( JRI), was the dominant practice of justice reinvestment in the United States. It was organized as a public– private partnership that engaged states in bipartisan efforts to enact leg- islative reforms and other policies to address sentencing and corrections practices and adopt high-performing evidence-based practices (EBPs) that would yield the desired public safety benefits. JRI contributed to legislative reforms and adoption of EBPs, especially in community supervision. The federal JRI effort has not yet provided peer-reviewed, published evidence that it has achieved its objectives. 317 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . mailto:wsabol@gsu.edu https://doi.org/10.1146/annurev-criminol-011419-041407 https://www.annualreviews.org/doi/full/10.1146/annurev-criminol-011419-041407 CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 INTRODUCTION When Susan Tucker and Eric Cadora introduced the concept of justice reinvestment in 2003 (Tucker & Cadora 2003), the prison population in the United States had increased from approxi- mately 200,000 persons in the early 1970s to 1.3 million persons. It would continue to rise to ap- proximately 1.6 million around 2007, before beginning a slow decline (Bronson & Carson 2019, Carson 2018). Calling this expansion of incarceration a costly national dependence on a penal policy that sacrificed rather than enhanced public safety, they proposed that public safety could be improved by reducing the size and costs of correctional populations, redirecting a portion of the cost savings toward investments in local communities, and “devolving accountability and re- sponsibility to the local level” (Tucker & Cadora 2003, p. 2). Under their model, locally directed investment in education, jobs, housing, healthcare, and other community amenities would en- hance or rebuild communities, thereby leading to less crime and less incarceration. Locally based supervision of offenders would improve the accountability of local justice agencies and offenders, lower costs, and facilitate offender integration into communities. Over the next 15 years, the concept of justice reinvestment evolved, obtained the support of private foundations, was adopted internationally, and resulted in more than $160 million in federal investment in the United States. It has been described as “the largest effort within the United States—and now in other Western nations—to reverse what many have lamented as the use of mass incarceration” (Austin & Coventry 2014, p. 127); presented as providing a viable solution to the problem of increasing corrections expenditures and “dissatisfaction with current returns on public safety investment[s]” (La Vigne et al. 2014, p. 7); and credited with widespread adoption of evidence-based corrections programs (Klingele 2015). The Justice Reinvestment Initiative, or JRI, a public–private partnership between the Bureau of Justice Assistance (BJA) and the Pew Charitable Trusts (Pew), was the main form of justice rein- vestment in the United States. It shifted the focus of reinvestment from individual communities to managing costs and legislating reforms that would improve the efficiency of criminal justice system operations as a means to reduce recidivism and improve public safety. At least 35 states participated in some form of justice reinvestment between 2007 and 2017 (Pew 2018), and many were pro- jected to have or were credited with having smaller prison populations than would have occurred in the absence of JRI reforms. Collectively, the states were projected to avert billions of dollars in corrections costs over periods as long as 11 years (Harvell et al. 2017, LaVigne et al. 2014). Nongovernmental entities such as the Council of State Governments (CSG) and Pew, who also provided technical assistance (TA) to JRI participants, and the Urban Institute, which was re- sponsible for assessing outcomes and impacts of JRI, have tracked and recorded many examples of JRI efforts in states and localities. Each has devoted space on their respective website [Council of State Governments (https://www.csg.org/), Pew (https://www.pewresearch.org/), Urban In- stitute (https://www.urban.org)] to justice reinvestment, with literally hundreds of articles, fact sheets, reports, and stories, mostly touting successful reinvestment efforts, sharing lessons learned, or otherwise promoting the value of JRI. However, independent reviews of justice reinvestment have been limited and largely critical. Two books (Brown et al. 2016, Fox et al. 2013) reviewed justice reinvestment in the United States, the United Kingdom, and Australia. Both argued that it was a major movement in criminal justice reform that could be used to reduce crime through investment in social justice (Fox et al. 2013), had the potential to create a new dialog about how to reduce incarceration and the racial disparities within it, and build community capacity (Brown et al. 2016). Both concluded that it had not yet achieved its goals. A special edition of Criminology & Public Policy devoted to mass incarceration included a proposal for justice reinvestment and a set of commentaries that generally were less 318 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://www.csg.org/ https://www.pewresearch.org/ https://www.urban.org CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 sanguine about its prospects than the books. Assessments of it within the broader contexts of the politics of mass incarceration (Gottschalk 2015), the economics of prison growth (Pfaff 2016), sentencing reform of the 2000s (O’Hear 2017), and community supervision practices (Klingele 2015) have pointed out some of its internal contradictions. Finally, despite its scope and the public attention given to justice reinvestment, it was not given a prominent place in either of two recently published volumes devoted to criminal justice reform. Neither Erik Luna’s four-volume Reforming Criminal Justice (Luna 2017a) nor Michael Tonry & Daniel Nagin’s Reinventing American Criminal Justice (Tonry & Nagin 2017) devoted a chapter to it, although several of the papers in Luna’s volumes gave it limited attention in their discussions of prison or supervision reform efforts. Our review distinguishes between the concepts of justice reinvestment, which allows for justice funds to be reallocated to non-justice domains, and the JRI, which characterized the US experi- ence. We describe the justice reinvestment concept as originally envisioned and how it evolved, particularly within the United States. We describe the transition from justice reinvestment to JRI, which represented a marked shift in the emphasis of reinvestment away from place- and community-based offender management to a state-level strategy that emphasized improving cor- rections departments’ practices through expanded use of evidence-based programming. This shift largely preserved the size and oversight function of the justice system, as reinvested dollars flowed from one sector of the justice system to another, as opposed to community-based, primary preven- tion efforts. Our review therefore focuses largely on the JRI experience and the extent to which it achieved its objectives. We conclude with observations about both justice reinvestment and JRI. ORIGINS AND EVOLUTION OF THE CONCEPT OF JUSTICE REINVESTMENT The theoretical basis for justice reinvestment comes from the community development literature, but it borrows insights from research on the collateral consequences of incarceration. Individual-, community-, and system-level characteristics were seen as inextricably linked causes of crime that necessitated multipronged reforms to address. First, justice reinvestment’s systems-level approach sought to ameliorate the impact of concentrated mass incarceration and coercive mobility—the forced removal and return of community residents through incarceration (Clear et al. 2003)—by reforming sentencing and revocation policies to reduce the use of prison (Austin et al. 2013, Clear 2011, Tucker & Cadora 2003). Second, justice reinvestment emphasized the importance of bol- stering family and community cohesion through the adoption of policies designed to revitalize distressed communities and increase the availability of preventive programs and educational and economic opportunities (Clear 2011, Tucker & Cadora 2003). Finally, justice reinvestment em- phasized assessment of offenders to address their individual treatment and programmatic needs while also managing their public safety risk (Clear 2011). This also exhibited itself in the concept of local community control and accountability for offenders. Tucker & Cadora (2003) viewed justice reinvestment as a means to reduce mass incarcera- tion and build capacity in communities affected by it. They located the causes of mass incarcera- tion in the tough sentencing and corrections policies of the 1980s and 1990s, such as the war on drugs, mandatory minimums, three-strike sentences, truth-in-sentencing, and diminution of ju- dicial discretion. Pointing to findings that a relatively small number of neighborhoods accounted for a disproportionately high number of prison admissions (Clear 2008, Clear et al. 2003, Kurgan 2013, Lynch & Sabol 2001, Sampson & Loeffler 2010), Tucker & Cadora dubbed as million-dollar blocks those areas associated with massive corrections expenditures that have also struggled with pervasive crime despite record-high levels of incarceration. And they asked if some portion of those costs might not be put to different uses that would strengthen communities. www.annualreviews.org • Justice Reinvestment 319 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Following the arguments of Clear et al. (2003), Tucker & Cadora argued that high rates of removal of residents to incarceration introduced coercive mobility, which diminished informal social control in communities that, in turn, led to more crime. Offenders’ opportunities for suc- cess were limited by high rates of reincarceration for technical violations while on parole, a dearth of training and treatment services available upon reentry, and the fragility of economic and social institutions in the neighborhoods to which they were returning. Opportunities for offender rein- tegration were exacerbated by the lack of programmatic, economic, and social support systems within the neighborhoods with high concentrations of crime and incarceration. Under justice reinvestment, some of the monies that would have gone to cover the costs of imprisonment would flow from the state to local communities to manage offenders locally and invest in community institutions. Localities would be accountable to the state for any person who reoffends and goes to state prison. Locally tailored solutions would include, for example, allocating parole officers to neighborhoods rather than dispersing their workloads; designing prisoner reen- try as a shared responsibility of governments, community institutions, families and friends, and the individual offender; and building communities through reinvestments targeted at improving local schools, housing, employment, and other objectives. Eight years after Tucker & Cadora, Todd Clear (2011) proposed a justice reinvestment model for a place-based, detailed voucher system that diverted cost savings from states’ corrections budgets to community-based organizations and employers on a per-offender, real-time basis. Approved organizations and employers who treated or employed diverted offenders in specific, high-incarceration communities would receive monthly subsidies so long as the offenders did not reoffend or become reincarcerated. Clear built local accountability into the model by eliminating the state subsidy for cases of supervised offenders reoffending for a new crime. To ensure emphasis on community revitalization and sustainability, the model required participating organizations to employ offenders and their families and provide key services, such as housing, educational or vocational training, and substance-abuse treatment. This original vision of justice reinvestment was met with a mixture of praise and skepticism. On one hand, the concept was characterized by the “elegance of the critique and solution” as an “aesthetically compelling idea” that gives “pleasure to the mind or senses,” and had properties of “harmony of form or color, excellence of artistry, truthfulness, and originality” that policy makers and art galleries seek to find (Maruna 2011,pp.661–62).It was described as an approach that would have broad appeal because it could provide “greater safety for citizens through redeploying some of the wasteful sums needlessly spent on imprisonment” (Allen 2011, p. 617). The National Re- search Council (NRC) offered that JRI could contribute to the neighborhood capacity building of the initial justice reinvestment efforts as part of an approach to “reduc[e] reliance on incar- ceration” (Travis et al. 2014, p. 353). Klingele (2015) expressed hopefulness that JRI’s pragmatic approach could continue to bring political partisans together in a way that would potentially lead to more reform. On the other hand, criticisms of the original concept of justice reinvestment pointed out that the concept was not fully developed and did not address important issues. First and foremost, justice reinvestment did not address the assumptions that sufficient funds could be diverted for community reinvestment and the mechanisms by which funding streams for community rein- vestment would be sustained if prison costs decreased were not articulated. Questioning whether the savings that could be extracted from corrections would be sufficient without first obtaining very large reductions in the size of prison populations, Austin (2011, Austin et al. 2013) called for sentencing reforms that would curb admissions for new crimes and shorten lengths of stay. Their justice reinvestment proposals included reclassifying certain crimes as misdemeanors, re- ducing arrests for drug offenses, expanding early release eligibility for most offenders, imposing 320 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 shorter terms for many crimes, and eliminating mandatory minimums and life sentences for most crimes. If implemented, these would lead to much smaller prison populations and possibly greater amounts for reinvestment. Their model also required local municipal and county officials to act in coalitions to press for reforms that would reduce the concentration of incarceration in their communities as well as share in the political risks of legislating the reforms that reduced reliance on incarceration. But even under the more radical approach preferred by Austin et al. (2013), it is not clear that there would be sufficient savings for community reinvestment. Kleiman (2011) estimated that if the prison population were halved and coupled with the necessary expansion of treatment services for offenders diverted to supervision, approximately $10 billion in savings on the $50 billion spent by states would occur. This amounted to approximately half of one percent of state expenditures, an amount that seems inadequate to address the community reinvestment needs. Furthermore, state legislatures appropriate funds, not averted costs or savings. It is therefore far from certain that state legislatures would appropriate the savings for local community reinvestment as opposed to other needs (Tonry 2011). Even under Clear’s voucher model, it is not clear where state prison departments would get funding to pay the vouchers if their prison populations were reduced. More likely, state legislatures would appropriate smaller amounts for state prison departments under such a scenario. Furthermore,the cost savings associated with reducing prison populations were generally over- stated (Gottschalk 2015, Pfaff 2016, Tonry 2011). Estimates of savings based on per-capita or av- erage costs per prisoner overstate the savings unless entire prisons are shut down. This is because most prison costs are fixed costs for personnel, operations, and amortization. These costs do not change without substantial reductions in the number of facilities and number of staff. The means by which states would implement reductions in force if significant prison population reductions occurred also were not addressed (Gottschalk 2015). Additionally, justice reinvestment advocates did not address the potential for increasing in- equities and disparities in resources, services, and the administration of justice that could arise from devolving authority to localities (Allen 2011). These pragmatic appeals to instrumental ar- guments about costs and benefits ignored the severity of sentencing in the United States (Maruna 2011, Mayer & Patti 2015, Tonry 2011). Early Justice Reinvestment Implementation Efforts Between 2004 and 2008, Connecticut, Kansas, Texas, Rhode Island, and Arizona initiated justice reinvestment efforts (Austin & Coventry 2014). With financial support from the Open Society Foundations and later Pew, and with the TA from nonprofit research and TA firms, including the JFA Institute, CSG, and other organizations, the original justice reinvestment strategy was orga- nized around three parts: working with state legislatures to analyze criminal justice populations to recommend ways to generate savings; engaging experts to steer investment opportunities; and organizing demand for neighborhood investment by affected communities (Austin et al. 2013). Fox et al. (2013) and Brown et al. (2016) describe several of these early efforts. Most led to a variety of policy reforms that targeted administrative practices such as reducing revocations for technical violations of parole and probation, reestablishing good-time credits to reduce lengths of stay in prison, and holding parole hearings at the earliest possible date. Connecticut, Kansas, and Texas also expanded their community-based treatment and supervision practices in an effort to increase the use of alternative sanctions and provide greater reentry services. In at least three states, some form of community reinvestment was attempted. Texas reallocated several million dollars from its reserves to expand its Nurse–Family Partnership program—an www.annualreviews.org • Justice Reinvestment 321 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 effort to reduce violence and improve the health and well-being of low-income families (Clement et al. 2011). Connecticut outlined a plan to reinvest correctional savings, along with private in- vestments and federal grants,to bolster employment opportunities in the state’s high-incarceration communities (CSG 2003). Eventually, Connecticut invested in transitional housing for returning inmates (Austin et al. 2013). In 2007, Kansas lawmakers proposed a New Communities Initiative pilot project to revitalize high-incarceration neighborhoods in Wichita that was not implemented because of budget cuts to the state’s corrections budget in the wake of the 2008 financial crisis. None of these early efforts resulted in or experienced sustained investments. International Justice Reinvestment Experiences The United Kingdom and Australia also took on justice reinvestment efforts. A detailed review of these is beyond the scope of this article and has been outlined elsewhere (e.g., Brown et al. 2016, Wong et al. 2014). In the United Kingdom, concerns about the growth in the size and costs of corrections led the House of Commons Justice Committee to question the financial sustainability of the system (Fox et al. 2013). Prison population growth was seen as the result of the justice system treating prison as a free commodity and not holding justice system actors accountable for the consequences of their decisions (Brown et al. 2016). As in the United States, the existence of high concentrations of offenders in certain areas sup- ported the idea that local solutions were necessary, and early thinking about justice reinvestment focused on how to enhance local control and provide support to communities. Local decision- makers were viewed as able to secure local support, coordinate resources, and work with offenders to integrate them into local programs that would also build capacity in local communities (Allen 2007, 2011). Local administration would also improve accountability and the administration of justice (Stern & Allen 2007, Wong et al. 2014). In practice, justice reinvestment as implemented in the United Kingdom has been described as narrow and focused on reducing individual reoffending and not on community reinvestment (Wong et al. 2014). It has been described as reflecting a choice by politicians to use the language of reinvestment to support a focus on reducing recidivism and costs, or “to make the ‘reinvestment’ a reality by capturing savings in the criminal justice system” (Brown et al. 2016, p. 61). A set of small-scale pilot projects were designed to divert offenders from custody or provide community- based, postrelease services for returning offenders. These were based on the delivery of a criminal justice services model rather than a community reinvestment model. However, the scale of the interventions was too small and the payments were insufficient to cover costs (Wong et al. 2014). In Australia, early interest in justice reinvestment among community groups and members of the federal government led to the commissioning of a Senate inquiry outlining the potential of jus- tice reinvestment to address the problem of overincarceration among the nation’s disadvantaged peoples (Brown et al. 2016). Despite widespread agreement that Aboriginal, Torres Strait Islander, and mentally or cognitively impaired peoples are disproportionately impacted by the Australian justice system and that a justice reinvestment program rooted in localism is well suited to address this disparity, plans for the development and implementation of a federally supported reform pro- gram have not come to fruition (Brown et al. 2016). Instead, the bulk of justice reinvestment in Australia has proceeded piecemeal in various communities through the efforts of local or regional grassroots organizations. Although these initiatives may be associated with concomitant reduc- tions in costs and increases in local social welfare indicators (KPMG 2018), few evaluations have been conducted. And, as evidence from the United Kingdom’s experience suggests, such small- scale programs may be limited in their capacity to produce substantial savings and change (Wong et al. 2014). 322 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 THE JUSTICE REINVESTMENT INITIATIVE JRI has been the dominant form of justice reinvestment practiced in the United States. It was distinct from justice reinvestment in several ways. First, its investment goal was justice system agencies and not community development. Second, although it promised that corrections costs would be saved by reducing imprisonment, its primary aim was to improve the efficiency of justice system operations and not large-scale reductions in incarceration. And third, it gave primacy to state-level agency stakeholders over community advocates. It was built on a model in which states secured support from key justice agency stakehold- ers; established bipartisan, interagency, or interbranch working groups of elected and appointed justice officials; used data to diagnose the sources of prison population growth; and enacted legis- lation or other evidence-based policy reforms to address the growth of correctional populations. JRI aimed to improve public safety while containing corrections costs (LaVigne et al. 2014). JRI’s public safety, cost-reduction, and cost-containment goals had broad bipartisan appeal. Cost con- tainment appealed to the political right. Reducing prison populations appealed to the political left. The emphasis on evidence-based practices appealed to those believing in the potential efficacy of government programs regardless of their political persuasion. JRI began in 2010 (LaVigne et al. 2014) with the first Congressional appropriation of $10 million for “activities related to comprehensive criminal justice reform and recidivism re- duction efforts by the States” (Pub. L. No. 111-117, 123 Stat. 3034, 2 U.S.C. § 661, p. 3,135). JRI was implemented as a public–private partnership between BJA and Pew, a rare if not unique orga- nizational arrangement within the Department of Justice. Between 2010 and 2017, Congress ap- propriated approximately $138 million for JRI (Harvell et al. 2017). In 2013 and 2016, BJA carved out JRI funds from other discretionary grant programs totaling approximately $33 million (OJP 2017). Prior to 2010, BJA also used funds from its discretionary grant programs to support JRI TA providers (OJP 2017). These sums suggest a BJA investment in JRI that exceeded $160 million. Justice Reinvestment Initiative Implementation JRI’s data-driven process (BJA 2010, 2013, 2015) involved seven steps (Davies et al. 2015, LaVigne et al. 2014, Welsh-Loveman & Harvell 2018) that fed back on themselves in a continuous cycle of reform: 1. Establish a bipartisan working group (inclusion criteria) 2. Analyze data and identify prison population drivers 3. Develop policy options 4. Codify and document changes 5. Implement policy changes 6. Reinvest savings 7. Measure outcomes BJA-funded TA providers worked with government officials to identify drivers of correctional population growth, evaluate the cost-effectiveness of state spending on corrections, and develop data-driven policy options to improve corrections management strategies, increase public safety, and improve offender accountability (BJA 2006, 2013). These Phase I activities included develop- ing bipartisan support for JRI efforts, building data infrastructures to track implementation and outcomes, demonstrating a willingness to implement evidence-based practices (EBPs) as part of JRI-reform efforts, and exhibiting the capacity to project what prison populations and corrections would be with and without the JRI reforms. Subsequently, states could become eligible for www.annualreviews.org • Justice Reinvestment 323 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Phase II grants for implementation. Phase II grant eligibility was based on a state’s readiness (i.e., having demonstrated a commitment to reform and the completion of Phase I activities), including memorializing criminal justice reforms in legislation or another mechanism and a willingness to implement JRI reforms (BJA 2013). TA providers assessed readiness and made recommendations to BJA regarding Phase II grants. BJA supported the work of an Oversight, Coordination, and Outcome Assessment (OCOA) to monitor, track, and report on JRI efforts, impacts, and outcomes. The OCOA was funded to accomplish multiple and potentially conflicting roles surrounding implementation and evaluation that included (BJA 2010, 2011, 2015): � Giving guidance to TA providers to ensure fidelity to the JRI model. � Reviewing TA provider recommendations about the readiness of states for JRI. � Making recommendations to BJA about relevant criminal justice research on ways to im- prove the effectiveness of JRI. � Providing guidance to BJA, TA providers, and the sites on performance measurement, data collection, and evaluation research. � Monitoring, tracking, and reporting on JRI efforts, impacts, and outcomes, including effects on prison population size, costs, investment in high-performing strategies, and improve- ments in public safety and reductions in recidivism. � Assessing which JRI strategies yielded the greatest impacts on public safety and producing a report on this. BJA funded the OCOA via a cooperative agreement mechanism that gave BJA a substantial role in the OCOA project, including the rights to review and approve OCOA activities.1 Justice Reinvestment Initiative’s Technical Assistance–Driven Model Led to a Shift in the Focus of Reinvestment JRI relied on TA providers to engage and enroll states, working with them to develop biparti- san stakeholder groups, engineer solutions that addressed prison population growth, and assess states’ readiness for JRI. The TA providers also made funding recommendations to BJA. The TA model resulted in a shift away from the focus on systemic and community factors tied to crimino- genic risk, as originally described by Tucker & Cadora (2003) and operationalized by Clear (2011). Rather, JRI’s reinvestment was put into state justice agencies, primarily community corrections, to improve their functioning. Whereas the community-reinvestment version of justice reinvestment was envisioned as a response to the problem of crime, JRI ultimately became a reform of criminal justice system processes practically designed to more effectively manage offenders. Brown et al. (2016, p. 115) note: As originally conceived in 2003, and as reimagined by Austin et al. in 2013, justice reinvestment has at its core not just decarceration, but community-driven local capacity building in the places most in need of positive change. In practice, however, we have seen that many of the cornerstone ideas of JR have been altered, reconceived or abandoned. The most significant of these shifts has been the move away from localized, place-based justice reinvestment, and the failure to reinvest savings in communities that produce large numbers of prisoners. Despite JRI’s broad, bipartisan political appeal, advocates of the original vision of community- based justice reinvestment argued that the system-level approach of JRI excluded the communities most affected by incarceration and did not address the problem of mass incarceration as originally 1The Urban Institute was selected as the OCOA through a competitive solicitation process. 324 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 envisioned (Austin et al. 2013). O’Hear (2017) argued that JRI’s focus on improving correctional efficiency was only tangentially related to the goal of reducing prison populations. These crit- icisms of JRI’s system-level approach concluded that the entities responsible for managing the large-scale correctional populations in the United States could not be counted on to reduce mass incarceration. Rather, as O’Hear suggested, JRI-empowered corrections officials would be more likely to use their enhanced capacities to respond to problems of chronic antisocial behavior with even more correctional control. These views coincide with those of other advocates of the original vision of justice reinvest- ment. For example, Vanita Gupta, eventually appointed as the Principal Deputy Assistant Attorney General to head the Civil Rights Division at the US Department of Justice, expressed similar con- cerns. She argued that by limiting the stakeholders primarily to state-level actors at the expense of local community stakeholders, JRI became a more conservative effort that limited the scope of reform so much that the JRI would not have an impact on mass incarceration (Brown et al. 2016). Ultimately, these advocates argued, this led JRI to become a conservative, status-quo-preserving reform effort (Austin et al. 2013). Ultimately, as we discuss later, JRI has not been shown to pro- duce reductions in prison populations. Hence, it is important to understand how JRI became a TA-driven and state-focused effort. We argue that two factors led to this. The first was federal funding priorities and the second was the expertise and experience of the entities that obtained funding through the competitive JRI grant programs. Dating back to and likely before the Government Performance Results Act of 1993 (Pub. L. 103-62, S.20), an evidence-based policy movement coincided with managerialism in the public sector and the belief that effective federal programs could be implemented indepen- dently of ideology and that federal performance could and should yield measurable benefits and results. By the mid-2000s, building on the work of Sherman and colleagues (Sherman et al. 2012) and the existence of “what works” clearinghouses, Laurie Robinson, the nominee for the Assistant Attorney General position for the Office of Justice Programs, described a role for federal funding to address crime that included developing and disseminating knowledge about what works and funding TA (COSSA 2010, Robinson 2017). Her testimony coincided with the evidence agenda promoted by the Office of Management and Budget (OMB). Beginning in the mid-2000s, OMB issued a series of memoranda to federal agencies in which it requested the agencies develop budget requests to strengthen the development and use of evidence, focus on a relatively small number of high-quality programs that would yield credible evidence of impacts, and direct larger shares of agency resources toward evidence-based practices (Burwell et al. 2013, Orszag 2009). As a federal programmatic, grant-making agency, BJA budget plans were subject to OMB review, and it had to align its objectives with OMB’s. Given the federal priority on evidence-based practices and the relative lack or absence of evidence about effective community-based justice reinvestment efforts coupled with knowledge of EBPs that focused on offenders’ risk and needs, federal funding priorities emphasized the evidence-based practices that helped to shift the focus of JRI toward the state-agency and TA-led models.2 Second,according to interviews conducted by Brown and colleagues,the focus on EBP was also associated with JRI’s move toward investments in criminal justice system improvements. This shift 2At CrimeSolutions.gov (https://crimesolutions.gov/TopicDetails.aspx?ID=35), the Justice Department’s “what works” clearinghouse for justice programs, there are no programs identified as evidence-based that mimic justice reinvestment into the community. By comparison, CrimeSolutions.gov identifies several reentry and community-corrections programs as evidence-based. These include intensive supervision, treatment for mentally ill inmates, reduced probation caseloads, and day treatment programs. www.annualreviews.org • Justice Reinvestment 325 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://crimesolutions.gov/TopicDetails.aspx?ID=35) CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 aligned with the expertise of the JRI TA providers that obtained the competitive grants that BJA provided for TA. Quoting TA providers, Brown et al. (2016) report that they believed that there was not a consensus regarding evidence-based methodologies for community development from justice-reinvested funds. By comparison, the criminogenic risk and needs literature (see James 2018 for a summary) provided guidance on EBPs. Furthermore, the EBP focus was consistent with JRI TA providers’ expertise in working with state agencies. The TA providers argued that a justice system focus for JRI better aligned with their skills and experience than a focus on com- munities (CSG 2013b). As Brown and colleagues report, one TA provider acknowledged “we’re not community redevelopment experts” (Brown et al. 2016, p. 95). Although JRI TA providers did not dispute the fact that disadvantaged communities had great needs, they also pointed to legitimate weaknesses in state corrections systems’ operations and argued that these problems needed to be addressed. These problems provided opportunities for change without needing to take a place-based approach to justice reinvestment. Thus, the combination of federal funding priorities, competitive grantmaking, and the experience and expertise of TA providers reinforced a state-agency model that reflected the expertise of the TA providers and addressed a reasonable need to improve agencies and the supervision that they provided. According to our argument, fed- eral funding priorities in combination with funded expertise combined to shift the focus of justice reinvestment toward corrections’ systems improvement. State Participation in the Justice Reinvestment Initiative Coincided with Widespread Legislative Sentencing Reforms Twenty-eight states participated in the JRI process between 2010 and 2016 (Harvell et al. 2017, LaVigne et al. 2014) and were included in the Urban Institute’s OCOA assessment reports.3 JRI states were defined as those involved in a time-limited JRI engagement that had previously en- gaged in criminal justice policymaking and intended to continue to do so after their JRI engage- ments end. This definition excluded California, which implemented justice reinvestment under Assembly Bill 109 following the US Supreme Court decision in Brown v. Plata (2011). That de- cision in 2011 ordered California to reduce the size of its prison population. AB 109 defined the purpose of justice reinvestment as “managing and allocating criminal justice populations more cost-effectively, generating savings that can be reinvested in evidence-based strategies that in- crease public safety while holding offenders accountable” (Petersilia 2014, p. 334). AB 109 aimed to support local community-based programs and EBPs. The Urban Institute’s reports on states’ JRI experiences describe what were identified as drivers of correctional population growth, the reform responses by the states, the adoption of EBPs, and estimates of impacts on prison populations and costs. Commonly reported prison popula- tion drivers among JRI states were parole and probation violations, with technical violations for drug and alcohol offenses identified as the primary cause of revocations in many states. Exist- ing sentencing practices and insufficient community corrections programs were also identified as drivers (Harvell et al. 2017, LaVigne et al. 2014). JRI practices varied among the states. Eighteen of the twenty-eight states that participated in JRI by 2016 adopted a variety of sentencing reforms, including changes to penalty classifications, mandatory and presumptive sentencing guidelines, sentencing enhancements, and alternative 3As Brown et al. (2016) and others point out, there were several, locally based justice reinvestment efforts, such as BJA’s funding for local jails (BJA 2008), and the Urban Institute produced a handbook for local practitioners on justice reinvestment (Parks et al. 2016). We exclude a discussion of these because they were few relative to the state JRI efforts and because of space limitations. 326 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 sentencing options. Twenty states implemented changes to their prison-release practices through practices such as expanded parole eligibility, use of good-time credits, and streamlined parole processes. Commonly enacted community corrections reforms included graduated sanctions, caps on the number of times a person can be revoked, and legislation to expand community-based supervision and treatment programs. JRI implementation occurred during a period of vigorous sentencing reform activity among the states. Between 2000 and 2016, every state in the United States passed legislation that had one or more elements of the types of legislative reforms that were documented as occurring under JRI. As cataloged in various state legislative tracking efforts by the National Conference of State Legislatures, the Sentencing Project, and the Vera Institute (Austin 2010; Brooke-Eisen & James 2012; Lawrence 2008; Mauer 2011; NCSL 2010, 2017; Porter 2017; Subramanian & Moreno 2014; Subramanian & Delany 2014), state legislative actions during this period addressed the use of EBPs and diversion programs and the possibility of requiring or encouraging the use of risk-assessment instruments, downgrading offenses (mostly property or drug), altering mandatory minimum sentences,expanding the use of specialty courts,adding alternatives to prison,increasing the use of good-time credits to shorten stays in prison, addressing parole revocation practices, and providing for programming to address returning prisoners. Although it is difficult to determine whether JRI caused the sentencing reform activity, the pace of legislative enactment appeared to increase during JRI. Our review of the dates that states enacted sentencing reforms indicates that the majority of the states that participated in JRI enacted JRI-type legislative reforms prior to their participation. One condition for JRI participation was evidence of sentencing and criminal justice reform, the passage of sentence legislation prior to participating in JRI could be viewed as evidence of a JRI impact on reform. The sentencing reforms of the 2000s,whether adopted before or during JRI,focused on making sentencing less severe, but according to the NRC and others, they did not substantially alter the major punitive laws passed during the 1980s and 1990s that increased certainty and severity of sentencing (Stemen & Rengifo 2011, 2012; Stoll & Raphael 2013; Tonry 2017; Travis et al. 2014). Rather, the NRC characterizes them as “relatively minor and target[ing] less serious offenses” (Travis et al. 2014, p. 74), even though the reforms rolled back some mandatory minimums (Luna 2017b). O’Hear (2017) echoes this conclusion and points out that reductions in sentencing for some offenses tended to be offset by increases for other offenses. JRI emphasized reserving prison space for persons who have committed serious or violent crimes or who pose a high public safety risk (BJA 2015, 2016). However, doing this means that large-scale reduction in prison populations could not occur, as more than half of state prisoners are incarcerated for violent crimes and most prisoners have long prior criminal histories. As a number of writers have pointed out, the key to reducing mass incarceration is reducing the number of persons held for violent offenses (Austin et al. 2013, Gottschalk 2015, O’Hear 2017, Pfaff 2017, Tonry 2017). Bureau of Justice Statistics (BJS) data show that between 2000 and 2016, the increase in violent offenders accounted for almost all the growth in prison populations, with habitual and weapons offenders accounting for the next largest share. The number of state prison inmates held for violent crimes increased by 95,000 persons and the share held for violent offenses increased to 54% from approximately 50%. The exclusion of violent offenders from JRI efforts was nearly codified in federal law. In 2010, two bills were introduced in the 111th Congress (S.2772 and H.R. 4080) that would have estab- lished a JRI grant program. The top priority for JRI implementation grant recipients under the bills was to “improve public safety and improve individual and system accountability while reduc- ing or maintaining criminal justice growth through policies which ensure that—violent offenders are incarcerated…”) [S. 2772; Sec. 4(b)(6)(A)(i)]. www.annualreviews.org • Justice Reinvestment 327 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Neither bill made it to the floor for a vote, but the introduction of S.2772 was met with strong support from JRI TA providers, including CSG, Pew, and the Urban Institute. These TA providers provided testimonies on behalf of the bills.CSG,for example,applauded the bills (CSG 2013a) and devoted a page on its website to track the legislation. If the bills had been enacted, they would have precluded federal JRI efforts from addressing violent offenders. Despite the bills’ exclusions of violent offenders, CSG and the other providers supported the bipartisan nature of the legislation, the support for JRI grant programs, and the manner in which the legislation built on CSG’s efforts in other states. Other than considering that prison was appropriate for them, JRI did not address violent offenders. Adoption of Evidence-Based Practices Under the Justice Reinvestment Initiative Was Widespread but Left Unanswered Questions About Their Impacts A second area in which JRI had success was in the widespread adoption of risk-based tools to manage populations and the use of risk-and-needs tools to provide treatment. Twenty-one of the twenty-eight states that participated in JRI required the creation and/or use of risk instruments in the areas of pretrial diversion, community supervision, and parole decisions. These instruments are meant to inform justice officials’ decision-making by identifying low-risk offenders (i.e., non- violent) who are least likely to recidivate and would, therefore, be appropriate candidates for early release or community supervision. Ten states’ legislative reforms included explicit requirements that certain programs, especially in the areas of community corrections, be considered evidence- based to receive funding. At least 24 of the JRI states implemented EBP in community correc- tions (Harvell et al. 2017). These were based largely on the criminogenic risk and needs model (Lowenkamp et al. 2006). Although there was widespread adoption of EBP under JRI, concerns have been raised about this. Leading researchers in EBP point out that widespread but shallow adoption of EBP in com- munity corrections “recognizes the data points but has been missing the person” (Lowenkamp et al. 2012, p. 11). They argued that unless therapeutic practices were implemented correctly, cor- rectional officers could focus too much on compliance with supervision requirements and lose their ability to motivate behavior change (Lowenkamp et al. 2012) or that treatment based on in- strumental rather than humanistic values was not legitimate (Harris et al. 2015, Whitehead et al. 2007). Other EBP researchers echoed the concern about rapid adoption of EBP in community corrections agencies. Taxman (2013) argued that community corrections agencies operated for decades in a culture of command and control that emphasized contacts, a focus on proscribed behaviors, and threats of violations. To effectively use EBPs, the agencies would have to change their cultures and move away from an enforcement and contact-driven model to a more holistic approach to engaging offenders. Otherwise, as Klingele (2015, p. 540) pointed out, the risk of adopting EBPs without the culture change and with “conscious attention to their limits” is that they can result in greater use of incarceration in response to proscribed behaviors. A second concern was that by measuring the adoption of EBPs as an indicator of success, JRI was measuring the wrong thing. Rather than counting and classifying various EBPs adopted in JRI states as the summary reports did (e.g., Harvell et al. 2017, LaVigne et al. 2013), Taxman and colleagues (Taxman et al.2014) argued that JRI performance measures for EBP should focus on the measures of offender needs, system-wide availability of EBPs that were responsive to these needs, and system-wide utilization of the EBPs. Taxman’s measures make sense if the goal is to assess the capacity of states to meet offender needs and to deliver services. These alternative performance measures have not been included in the state assessment reports. 328 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 The Justice Reinvestment Initiative Overstated the Potential Savings A major motivation for participating in JRI was its promise of lower-cost corrections systems. Clear (2011) and Pfaff (2016) describe this as using the fiscal crisis following the Great Recession as an opportunity for reform. The argument for lower-cost corrections was based on the 40-year low in crime rates coupled with all-time highs in prison populations and corrections spending. JRI advocates argued that prison populations could be safely reduced, thereby freeing up some of the corrections expenditures for other purposes, including funding community corrections. As described in one of the state assessment reports, state corrections expenditures consumed too large a proportion of states’ budgets, and during periods of state budget strain, “money spent on corrections draws resources away from investment in public services crucial to a state’s long-term prosperity, such as education and infrastructure” (LaVigne et al. 2014, p. 6). This popular argument about corrections expenditures appears in different forms, including the NRC report (Travis et al. 2014) and reports by the Vera Institute and the National Association of State Budget Officers (NASBO). These reports cite the increase in corrections expenditures over time and report a roughly $80 billion figure (in 2016) spent by states and counties on prisons and jails as indications that corrections expenditures are too high. All of these reports share a focus on the absolute amount of corrections spending but not the relatively small share of total state and local expenditures that is corrections spending. In relative terms, corrections expenditures amount to approximately 2% of all state and lo- cal expenditures (roughly $3.6 trillion in 2016). Gottschalk (2015), along with BJS (Kyckelhahn 2012), is among the few who pointed out that state and county corrections expenditures amount to small shares of total expenditures. Consequently, they cannot be a major source of strain on budgets and reducing them would not necessarily solve states’ budget problems. Our analysis of the Annual Survey of State Government Finance (US Census Bur. 2019) shows, for example, that although state spending on corrections increased over time,corrections spending as a share of total state expenditures did not exceed 3.2% annually from 1980 to 2015. State spending on corrections increased with the overall increase in state expenditures.Between 2000 and 2016,total state expen- ditures increased from $1.1 trillion to $2.2 trillion (in nominal dollars), but during these years, the corrections spending as a share of total state spending actually declined from 3% to 2.4%.4 Fur- thermore, Spelman (2009) points out that corrections spending grew at approximately the same rate as state expenditures for education, health and hospitals, highways, and other categories. Data from the NASBO corroborate the US Census Bureau data on corrections expenditures. NASBO’s reports also show that corrections expenditures declined as a share of total state ex- penditures, for example, from 3.7% of total state expenditures in 2000 to 3.1% in 2016 (NASBO 2002, 2017).5 Reductions in state corrections expenditures promised under JRI could not ease state budget pressures or markedly affect the share of state expenditures that went to other domains, as alleged. For example, between 2000 and 2015, education expenditures declined as a share of total state ex- penditures from 32% to 29%. During the same period, public welfare expenditures grew faster 4Results available from the authors upon request. 5In its state assessment report, the Urban Institute reports a larger share of state expenditures going to cor- rections than reported above. The reason is that Urban uses general fund expenditures as the denominator to calculate the share, whereas we and NASBO use total expenditures. Because corrections expenditures come from four sources—general fund, bonds, other state funds, and federal funds—excluding, as the Urban Insti- tute did, nongeneral fund expenditures from its denominator but including them in the numerator to calculate the corrections expenditures inflates that share (see NASBO 2002, 2017). www.annualreviews.org • Justice Reinvestment 329 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 than the overall growth in state expenditures,and their share increased from 22% to approximately 29% (or from approximately $239 billion to $609 billion). If the entirety of state corrections ex- penditures were reallocated to state education expenditures, the education share would still have declined over this time frame, from 35% to 31%. In fact, increases in public welfare expendi- tures, and not corrections expenditures, exerted the downward pressure on state investments in education. JRI advocates also missed or ignored four other important points about corrections expendi- tures. First, the estimates of cost savings under JRI were generally overstated because they were based on the average cost of an inmate and not the marginal cost (Tonry 2011, Gottschalk 2015). As approximately 75% of corrections spending goes to fixed costs (e.g., salaries, debt service) that do not change with small reductions in the size of prison populations, the marginal cost of an additional prison is approximately one-fifth the average costs (Pfaff 2016). Second, significant reductions in prison population size that led to prison closures would present challenges to states dealing with subsequent reductions in their workforce (Tonry 2011). These were not addressed in JRI strategies. Gottschalk (2015) points out that if reforms are justi- fied by reference to cost savings, the reforms will generate the savings only if they cut the size of correctional staff. Corrections budgets in many states are protected by public-sector unions, and reductions in force associated with much smaller prison populations would face opposition, if not from public-sector unions then from public-sector lobbying groups. But third, as Gottschalk (2015) also points out, it is not obvious that decarceration that does not lead to increases in crime is necessarily less expensive than prison. Rehabilitation programs that address offender needs related to substance abuse, mental health, housing, employment, and education are not cheap, especially if well-run. Finally, fiscal-based reforms such as JRI run the risk of leading to worse conditions in prisons. If state prison departments are under pressure to save money or to transfer it to other agencies before significant reductions in prison populations have occurred, this could lead to worse conditions for prison inmates. In sum, the pressure on state budgets arising from corrections expenditures was overstated and the efforts necessary to achieve significant reductions in corrections expenditures could lead to new problems for states. These were not presented as part of the case for JRI. The Justice Reinvestment Initiative Resulted in Several States Making Up-Front Investments According to the state assessment reports, JRI was associated with projected savings or averted costs, which were estimated as the difference between the projected future costs of corrections under business as usual and the projected costs under JRI. The difference is averted costs. Among the seventeen JRI states that participated between 2010 and 2013, total projected savings from JRI were reportedly $4.6 billion over five to eleven years. Individual state estimates of savings ranged from $7.7 to $875 million (LaVigne et al. 2014). For the 28 states that participated in JRI between 2010 and 2016, a total of $1.1 billion in savings or costs averted were attributed to JRI reforms (Harvell et al. 2017). The differences in estimated savings arise from initial comparisons of projected savings as compared to later comparisons with some actual changes under JRI. Reinvestment strategies varied considerably across states. According to Harvell et al. (2017), four states made up-front investments via new legislative appropriations before the realization of actual savings, another 12 states implemented both up-front investment and postreform rein- vestment strategies, and four states reinvested real savings. Only four states did neither. In to- tal, $193 million in up-front investments and $364 million in corrections savings reinvestments were made among JRI states that participated in reinvestment strategies (Welsh-Loveman & 330 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Harvell 2018). Most states’ investments focused on expanding community-based treatment pro- grams, postrelease services, and community supervision. A few states injected JRI-related funds into prison programs, victim services, diversion courts, law enforcement agencies, and pretrial diversion programs. None of the JRI states made investments in community revitalization or pri- mary prevention programs in high-incarceration neighborhoods or outside of the justice system. The fact that at least four states appropriated new monies for JRI through the up-front invest- ment mechanism suggests that under some circumstances, state legislatures can be persuaded to appropriate current dollars based on expectations of future cost savings. The fact that only a few states used the future cost savings argument to support requests for new expenditures suggests that the future cost savings argument did not have a strong appeal to state legislatures. However, the fact that it appealed to some state legislatures raises important questions about how and why it worked in some but not others. A study that considers whether there are lessons to be learned for state budgeting is merited. The Justice Reinvestment Initiative Did Not Demonstrate That It Contributed to Reductions in Prison Populations The JRI state assessment reports claimed that for 15 of the 18 states that participated in JRI by 2016 and for whom “sufficient time had passed to warrant analysis,” the prison population in 2015 was below what was projected without JRI reforms (Harvell et al. 2017, p. viii). Sufficient time was defined as at least two years of follow-up data since JRI legislative reforms were enacted (Harvell et al. 2017). This assessment was based on comparisons of the projected prison population under JRI reforms to the baseline projected populations that would have occurred had reforms not been implemented. This method allows the prison population to increase under JRI and be counted as a success as long as JRI-projected increases were less than baseline projected increases. The use of baseline forecasts of future prison populations conducted before a reform is imple- mented to generate the counterfactual future prison populations that would be obtained without the reforms has merit under certain conditions. The baseline forecasts should be accurate and have low error, and the length of the forecast period over which the comparisons are made should be reasonable. Assumptions about admissions and length of stay, the two determinants of the size of the prison population (Clear & Austin 2017), need to be assessed, along with the accuracy of the forecast models and the forecast error, particularly over the longer run. Of concern is the extent to which the population forecasts adequately assessed these factors. We could not find in the JRI state assessment reports (Harvell et al. 2017) any information indicating that such a critical review of the forecast models was done. We found no evidence that the reviews assessed assumptions, accuracy, or forecast error over the short or long run. Austin et al. (2013) raised questions about the accuracy of the JRI baseline forecast models. They argued that, in anticipation of participating in JRI, state forecast models used assumptions about admissions growth that were higher than during the period immediately prior to their JRI engagement. This would translate into larger baseline projections of prison populations that would, in turn, put less demand on JRI reforms to affect forecast and actual populations. Austin & Coventry (2014) provide examples of how baseline forecasts in some JRI states did not use all available information; if they had used them, smaller populations would have been forecast and reported JRI impacts may have vanished. The aforementioned absence of information about assessments of the reliability of prison population forecasts leads us to discount the JRI state as- sessment reports of reductions in prison populations. Comparisons of differences in prison population growth between JRI and non-JRI states have found negligible reductions in both but larger decreases in non-JRI states. Austin et al. (2013) and www.annualreviews.org • Justice Reinvestment 331 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Austin & Coventry (2014) looked at the early years of JRI and compared JRI and non-JRI states on prison population, admissions, and length of stay. The largest decreases in prison populations occurred in four non-JRI states (NY, NJ, MI, and CA). Reductions in admissions due to decreases in parole violators were larger in the non-JRI states, as were the very small changes in length of stay in either group.6 A criticism levied against the Austin work is that the selection into JRI was based in part on the assumption of a projected high rate of growth in prison population. In other words, the JRI states would start from a higher base and therefore reductions might be smaller. This claim is questionable. Prison population growth in the United States slowed in the early 2000s (Harrison & Beck 2003, 2004, 2005), and by the mid-2000s when JRI was implemented, prison population growth nationwide was approaching zero growth. Although rates of growth varied among the states, those selected into JRI in 2007 and 2008 (KS, NV, TX, AZ, CT, PA, RI) included a mixture of states with smaller and larger than average growth in prison populations as reported by the BJS (Sabol et al. 2007). The same conclusion applies to the states selected into JRI in 2010 and 2011 (MI, NH, SC, AL, AR, KY, LA, NC, OH) except that several of these JRI states reported decreases in their prison populations in the year or years prior to entry into JRI (West et al. 2010). Overall, in 18 of the 35 states that participated in JRI, declines in prison populations began before their year of entry into JRI. An alternative approach to identifying causal effects of JRI on prison populations was suggested by Rhodes and colleagues (W. Rhodes, G. Gaes, T. Rich, J. Edgerton, R. Kling, J. Luallen, unpub- lished report). Using administrative data on persons admitted into and released from state prisons, they adopted a difference-in-difference (DiD) framework to compare pre- and post-JRI popula- tion trends in the targeted and comparison populations within JRI states. They defined target and comparison groups based on the severity of sentence served, under the theory that effective sentence length incorporates decision makers’ assessments of offender severity and risk (Bushway & Smith 2007; Kuziemko 2007, 2014). The insight behind this approach is that if JRI diverted less serious or lower-risk offenders from prison as expected, their admissions rates would decline following JRI and decline more rapidly than those of their comparison group, the next highest risk category. Their preliminary results for five JRI states found JRI-led reductions in some states but not in others (W. Rhodes, G. Gaes, T. Rich, J. Edgerton, R. Kling, J. Luallen, unpublished report). The Rhodes’ example illustrates an approach not taken to assess impacts of JRI on prison populations. It addresses some of the concerns about selection into JRI by making comparisons within JRI states before and after implementation. It identifies a group (lower level offenders) that should be impacted by JRI reforms and compares changes for that group of offenders with groups that should not be affected by reforms to identify JRI impacts, such as more serious offenders. Finally, it presents a stronger design than the comparisons of actual to projected populations used in the state assessment reports. The Justice Reinvestment Initiative’s Evidence on Public Safety Impact We could find no peer-reviewed publications on the impacts of JRI on public safety. Several TA provider descriptive reports present information supporting the claim that “many JRI states have slowed prison growth, reduced overcrowding, and saved taxpayers’ money without sacrificing 6We updated the Austin et al. comparison between JRI and non-JRI states on prison population growth, extending the period covered through 2016. Our findings were similar to Austin’s: Both groups experienced relatively small decreases: California accounted for most of the decrease in non-JRI states, but when California was omitted the non-JRI states still had faster decreases, and several JRI states experienced decreases before participating in JRI. Analyses available upon request of the authors. 332 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 public safety and other states are projected to do so” (LaVigne 2014, p. 2). A core promise of JRI was that states could have smaller prison populations and improved public safety, or at least no decreases in public safety. According to BJA award documentation, one of the OCOA responsi- bilities was to measure the impacts of the JRI-led policy changes and “assess which JRI strategies yielded the greatest impact on public safety” (BJA 2011, p. 1). In the final state assessment re- port that was available at the time of this writing, public safety outcomes—specifically crime and recidivism rates—were defined as core system-level measures, but the report omitted any presen- tation of data on these measures (Harvell et al. 2017). The omission of any information about JRI’s impacts on public safety precludes any assessment of its benefits relative to costs. Admittedly, identifying JRI’s effects on public safety presents challenges. Given the varied na- ture of JRI implementation, the many reforms implemented at different times in different ways and the absence of detailed information about the EBPs, designs to measure impacts might require linked data on individuals that measure the interventions they receive and assess their outcomes. Furthermore, there may be a lag between the implementation of JRI and its impacts. However, several states had implemented JRI efforts as early as 2010. By the time of the most recent state assessment report in 2017, there were five to six years to observe impacts in early JRI adopters. This provides a sufficient length of time to conduct at least some preliminary analysis of JRI’s impacts on public safety. Furthermore, there are examples of models that could have been used to attempt to identify the impacts of JRI on public safety. The Bartos & Kurbin (2018) state-level panel with a synthetic control group design to estimate crime rates in the absence of a reform is one such model. Given the variety of approaches taken by states, it seems likely that state-specific assessments would be necessary. Because of the centrality of public safety to JRI, the absence of a public record of work done on this issue and the absence of evidence about JRI’s impacts on public safety are disappointing gaps in knowledge about what JRI may have accomplished and whether the federal investment paid off. CONCLUSIONS As practiced in the United States, justice reinvestment as originally conceived and the JRI have not achieved their goals. The original version of justice reinvestment did not achieve its objective of redirecting a portion of corrections expenditures toward community needs or in devolving accountability for offenders from the state to the local communities in which offenders resided. The JRI, which had success in enrolling states, accelerating the pace of legislative change, and adopting EBPs, did not demonstrate that it led to reductions in prison populations, cost savings, or improvements in public safety. An appeal of the community-oriented approach of the original justice reinvestment was its aim to rearrange the relationship between communities and corrections systems, as reflected by its em- phasis on devolving accountability for offenders to their local communities. At that level, it passes Western’s test for using criminal justice policy to address social problems by encouraging commu- nity membership and participation (Western 2018). But the community-oriented approach of the original justice reinvestment does not address funding and implementation challenges. It did not demonstrate that even relatively large reductions in prison populations would generate sufficient savings to address the reinvestment needs; that local communities had sufficient infrastructure to sustain alternatives to incarceration; that states would be willing to devolve authority to the very localities that they blamed for sending them so many prisoners in the first place; that state legisla- tures would use savings for local community reinvestment as opposed to other state-level budget needs; or that state legislatures would commit to appropriating funds to cover a future stream of www.annualreviews.org • Justice Reinvestment 333 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 projected savings, i.e., the future funds that would sustain community reinvestment, derived from the offenders diverted from prison. Even if local communities successfully supervised diverted of- fenders, the benefit of this would accrue to state prisons, which in turn would have to convince state legislatures to appropriate funds to cover the costs of prison populations that would have been obtained without the local justice reinvestment rather than their actual populations. Other- wise, the state support for justice reinvestment would not be sustained. Ultimately, the funding for community reinvestment needs to come from non-justice system sources. Practically, attempts to try justice reinvestment were short-lived, so we do not know if a model could have been designed to meet the funding and implementation challenges, although we doubt it.The JRI model supplanted the community-oriented justice reinvestment model and become the dominant form of justice reinvestment practiced in the United States. The JRI was implemented at a time when the federal government emphasized creating, dis- seminating, and using evidence to support its programs. Other than supporting the use of EBPs, JRI’s implementation did not align with the federal government’s evidence agenda. Rather than, say, fund a relatively small number of high-quality and proven programs (an OMB preference), JRI enrolled 28 states that implemented approximately as many untested and unproven vari- eties of reform. Or, rather than first demonstrate the efficacy of a few models and then funding them for broader implementation, JRI optioned for broad implementation of reforms without ev- idence that they would work. JRI’s elevation of enrollment over creating evidence leaves us with scant evidence of its effectiveness in achieving its goals, and no evidence that it improved public safety. JRI was associated with the adoption of sentencing reforms and with an acceleration of the pace of change, even if the reforms did not address the severity of the sentencing reforms of the 1990s. JRI helped to spread EBPs, especially in community supervision. The upside to the adoption of these reforms is that they have the potential to change the nature of community supervision. At the same time, the downside is that they have the potential to be implemented instrumentally and not in a humanistic manner, as their creators envisioned, unless the culture of community supervision agencies changes. At the time of this writing, federal support for JRI appears to be waning. BJA zeroed out JRI in its FY2019 budget and again in its FY2020 budget (OJP 2018, 2019). This suggests that federal support to assist agencies in the culture change necessary for safe, humane, and effective implementation of the EBP is likely dissipating. JRI’s bipartisan approach to reform also found room for political compromises that were crafted around improving the operation of justice agencies. By design, JRI could not achieve substantial reductions in prison populations or significant cost savings because it did not deal with violent offenders or those with long criminal histories (other than reserve prison space for them). These offenders make up the vast majority of prisoners. Achieving substantial reductions in the number of violent offenders in prison would have required JRI to address (reduce) the severity of sentencing and (increase) the use of alternatives to prison. These are not issues around which bipartisan compromise could have been easily forged within the confines of the program. Rather, JRI set a relatively low bar for reducing prison populations, oversold the potential cost savings, and ultimately did not deliver evidence that it was responsible for either. DISCLOSURE STATEMENT The authors are not aware of any affiliations, memberships, funding, or financial holdings that might be perceived as affecting the objectivity of this review. 334 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 LITERATURE CITED Allen R. 2007. From restorative prisons to justice reinvestment. See Allen & Stern 2007, pp. 5–8 Allen R. 2011. Justice reinvestment and the use of imprisonment. Criminol. Public Policy 10:617–27 Allen R, Stern V, eds. 2007.Justice Reinvestment–A New Approach to Crime and Justice. London: Int. Cent. Prison Stud. Austin A. 2010. Criminal justice trends: key legislative changes in sentencing policy, 2001–2010. Rep., Vera Inst. Justice, New York. https://storage.googleapis.com/vera-web-assets/downloads/Publications/ criminal-justice-trends-key-legislative-changes-in-sentencing-policy-2001-2010/legacy_ downloads/Sentencing-policy-trends-v1alt-v4.pdf Austin J. 2011. Making imprisonment unprofitable. Criminol. Public Policy 10:629–35 Austin J, Cadora E, Clear TR, Dansky K, Greene J, et al. 2013. Ending mass incarceration: charting a new justice reinvestment. Rep., Sentencing Proj., Washington, DC. https://www.sentencingproject.org/wp- content/uploads/2015/12/Ending-Mass-Incarceration-Charting-a-New-Justice-Reinvestment. pdf Austin J, Coventry G. 2014. A critical analysis of justice reinvestment in the United States and Australia. Vict. Offenders 9:126–48 Bartos BJ, Kubrin CE. 2018. Can we downsize our prisons and jails without compromising public safety? Findings from California’s Prop 47. Criminol. Public Policy 17:1–23 Bronson J, Carson AE. 2019. Prisoners in 2017. Bur. Justice Stat. Rep. NCJ 252156, US Dep. Justice, Washington, DC Brooke-Eisen L, James J. 2012. Reallocating justice resources: a review of 2011 state sentencing trends. Rep., Vera Inst. Justice, New York. https://storage.googleapis.com/vera-web-assets/downloads/Publications/ reallocating-justice-resources-a-review-of-2011-state-sentencing-trends/legacy_downloads/ reallocating-justice-resources.pdf Brown D, Cunneen C, Schwartz M, Stubbs J, Young C. 2016. Justice Reinvestment: Winding Back Imprisonment, Palgrave Studies in Prisons and Penology. Basingstoke, UK: Palgrave Macmillan Brown v. Plata, 563 U.S. 493 (2011) Bur. Justice Assist. (BJA). 2006. BJA’s prison population analyses: providing policymakers with data-driven anal- yses and options. Office Justice Program Grant 2006-RP-BX-K276, US Dep. Justice, Washington, DC. https://external.ojp.usdoj.gov/selector/awardDetail?awardNumber=2006-RP-BX-K276& fiscalYear=2006&applicationNumber=2006-F4814-KY-DD&programOffice=BJA&po=All Bur. Justice Assist. (BJA). 2008.Reducing jail populations, improving communities: a strategic approach for justice rein- vestmentat the local level.Office Justice Program Grant 2008-DD-BX-0684,US Dep.Justice,Washington, DC. https://external.ojp.usdoj.gov/selector/awardDetail?awardNumber=2008-DD-BX-0684& fiscalYear=2008&applicationNumber=2008-F5022-DC-MI&programOffice=BJA&po=BJA Bur. Justice Assist. (BJA). 2010. Criminal justice improvement and recidivism reduction through state, local, and tribal justice reinvestment: FY 2010 competitive grant announcement. Office Manag. Budg. Rep. 1121–0329, US Dep. Justice, Washington, DC. https://www.ncjrs.gov/pdffiles1/nij/sl001084.pdf Bur. Justice Assist. (BJA). 2011. Justice reinvestment initiative. Office Justice Program Grant 2010- RR-BX-K072, US Dep. Justice, Washington, DC. https://external.ojp.usdoj.gov/selector/ awardDetail?awardNumber=2010-RR-BX-K072&fiscalYear=2011&applicationNumber=2011- H6539-DC-TR&programOffice=BJA&po=BJA Bur. Justice Assist. (BJA). 2013. Criminal justice improvement and recidivism reduction through the state-level justice reinvestment initiative (JRI): FY 2013 competitive grant announcement. Office Manag. Budg. Rep. 1121– 0329, US. Dep. Justice, Washington, DC. https://www.bja.gov/Funding/13JRIsol.pdf Bur. Justice Assist. (BJA). 2015. Justice reinvestment initiative: maximizaing state reforms: FY 2015 competitive grant announcement. Office Manag. Budg. Rep. 112-0329, US. Dep. Justice, Washington, DC Bur. Justice Assist. (BJA). 2016. Justice reinvestment initiative: maximizing state reforms: FY 2016 competitive grant announcement. Office Manag. Budg. Rep. No. 1121–0329, US. Dep. Justice, Washington, DC. https:// www.bja.gov/funding/JRImaximizing.pdf www.annualreviews.org • Justice Reinvestment 335 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://storage.googleapis.com/vera-web-assets/downloads/Publications/criminal-justice-trends-key-legislative-changes-in-sentencing-policy-2001-2010/legacy_downloads/Sentencing-policy-trends-v1alt-v4.pdf https://www.sentencingproject.org/wp-content/uploads/2015/12/Ending-Mass-Incarceration-Charting-a-New-Justice-Reinvestment.pdf https://storage.googleapis.com/vera-web-assets/downloads/Publications/reallocating-justice-resources-a-review-of-2011-state-sentencing-trends/legacy_downloads/reallocating-justice-resources.pdf https://external.ojp.usdoj.gov/selector/awardDetail?awardNumber = 2006-RP-BX-K276&fiscalYear = 2006&applicationNumber = 2006-F4814-KY-DD&programOffice = BJA&po = All https://external.ojp.usdoj.gov/selector/awardDetail?awardNumber = 2008-DD-BX-0684&fiscalYear = 2008&applicationNumber = 2008-F5022-DC-MI&programOffice = BJA&po = BJA https://www.ncjrs.gov/pdffiles1/nij/sl001084.pdf https://external.ojp.usdoj.gov/selector/awardDetail?awardNumber = 2010-RR-BX-K072&fiscalYear = 2011&applicationNumber = 2011-H6539-DC-TR&programOffice = BJA&po = BJA https://www.bja.gov/Funding/13JRIsol.pdf https://www.bja.gov/funding/JRImaximizing.pdf CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Burwell SM. 2013. Memorandum to the heads of departments and agencies. Office Manag. Budg. Rep. M-13-17, US. Dep. Justice, Washington, DC Bushway S, Smith J. 2007. Sentencing using statistical treatment rules: what we don’t know can hurt us. J. Quantit. Criminol. 23:377–87 Carson EA. 2018. Prisoners in 2016. Bur. Justice Stat. Rep. NCJ 241149, US Dep. Justice, Washington, DC Clear TR. 2008. The effects of high imprisonment rates on communities. Crime Justice 37:97–132 Clear TR. 2011. A private-sector, incentives-based model for justice reinvestment. Criminology Public Policy 10:585–608 Clear TR, Austin J. 2017. Mass incarceration. In Reforming Criminal Justice: Punishment, Incarceration, and Release, Vol. 4, ed. E Luna, pp. 55–76. Phoenix: Ariz. State Univ. Clear TR, Rose DR, Waring E, Scully K. 2003. Coercive mobility and crime: a preliminary examination of concentrated incarceration and social disorganization. Justice Q. 20:33–64 Clement M, Schwarzfeld M, Thompson M. 2011. The national summit on justice reinvestment and public safety: addressing recidivism, crime, and corrections spending. Justice Cent. Rep., Counc. State Gov., Washington, DC. https://csgjusticecenter.org/jr/summit-report/ COSSA. 2010. AAG Robinson defends OJP budget to House Appropriations panel. Wash. Update 29:4–5 Counc. State Gov. (CSG). 2003. Building bridges: from conviction to employment. Justice Cent. Rep., Counc. State Gov., Washington, DC. https://csgjusticecenter.org/wp-content/uploads/2012/12/Building. Bridges.pdf Counc. State Gov. (CSG). 2013a. CSG Justice Center applauds U.S. House and Senate members’ in- troduction of the Justice and Mental Health Collaboration Act. CSG Justice Center News. https:// csgjusticecenter.org/cp/press-releases/csg-justice-center-applauds-u-s-house-and-senate- members-introduction-of-the-justice-and-mental-health-collaboration-act/ Counc. State Gov. (CSG). 2013b. Lessons from the states: reducing recidivism and curbing corrections costs through justice reinvestment. Justice Cent. Rep., Counc. State Gov., Washington, DC. https://csgjusticecenter. org/wp-content/uploads/2013/04/FINAL_State_Lessons_mbedit.pdf Davies E,Harvell S,Cramer L.2015.TheJusticeReinvestmentInitiative: thinking local for state justicereinvestment. Rep. 2000158, Urban Inst., Washington, DC Fox C, Albertson K, Wong K. 2013. Justice Reinvestment: Can the Criminal Justice System Deliver More for Less? London: Routledge Gottschalk M. 2015. Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton Univ. Press Harris GT, Lowenkamp CT, Hilton NZ. 2015. Evidence for risk estimate precision: implications for individ- ual risk communication. Behav. Sci. Law 33:111–27 Harrison PM, Beck AJ. 2003. Prisoners in 2002. Bur. Justice Stat. Rep. NCJ 200248, Office Justice Progr., Washington, DC Harrison PM, Beck AJ. 2004. Prisoners in 2003. Bur. Justice Stat. Rep. NCJ 205335, Office Justice Progr., Washington, DC Harrison PM, Beck AJ. 2005. Prisoners in 2004. Bur. Justice Stat. Rep. NCJ 210677, Office Justice Progr., Washington, DC Harvell S, Welsh-Loveman J, Love H, Durnan J, Eisenstat J, et al. 2017. Reforming sentencing and corrections policy: the experience of justice reinvestment initiative states. Rep., Urban Inst. Washington, DC. https:// www.urban.org/sites/default/files/publication/86691/reforming_sentencing_and_corrections_ policy_final.pdf James N. 2018. Risk and needs assessment in the federal prison system. Rep. R44087, Congressional Res. Serv., Washington, DC Kleiman MAR. 2011. Justice reinvestment in community supervision. Criminol. Public Policy 10:651–59 Klingele C. 2015. The promises and perils of evidence-based corrections. Notre Dame Law Rev. 91:537–84 KPMG. 2018. Maranguka justice reinvestment project: impact assessment. Rep., Just Reinvest NSW, Sydney, Aust. http://www.justreinvest.org.au/wp-content/uploads/2018/11/Maranguka-Justice- Reinvestment-Project-KPMG-Impact-Assessment-FINAL-REPORT.pdf Kurgan L. 2013. Close Up at a Distance: Mapping, Technology, and Politics. New York: Zone Books 336 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://csgjusticecenter.org/jr/summit-report/ https://csgjusticecenter.org/wp-content/uploads/2012/12/Building.Bridges.pdf https://csgjusticecenter.org/cp/press-releases/csg-justice-center-applauds-u-s-house-and-senate-members-introduction-of-the-justice-and-mental-health-collaboration-act/ https://csgjusticecenter.org/wp-content/uploads/2013/04/FINAL_State_Lessons_mbedit.pdf https://www.urban.org/sites/default/files/publication/86691/reforming_sentencing_and_corrections_policy_final.pdf http://www.justreinvest.org.au/wp-content/uploads/2018/11/Maranguka-Justice-Reinvestment-Project-KPMG-Impact-Assessment-FINAL-REPORT.pdf CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Kuziemko I. 2007. Going off parole: how the elimination of discretionary prison release affects the social costs of crime. Work. Pap. 13380, National Bureau of Economic Research, Harvard, MA. https://www.nber. org/papers/w13380.pdf Kuziemko I. 2014. How should inmates be released from prison: an assessment of parole versus fixed- sentencing regimes. Q. J. Econ. 128:371–424 Kyckelhahn T. 2012. State corrections expenditures, FY 1982-2010. Bur. Justice Stat. Rep. NCJ 239672, US Dep. Justice, Washington, DC LaVigne NG, Samuels J, Bieler S, Mayer D, Pacifici L, et al. 2013.The Justice Reinvestment Initiative: Experiences from the States, Washington, DC: Urban Inst. LaVigne NG. 2014. Lessons from the states: responsible prison reform. The Urban Institute. https://www.urban.org/sites/default/files/publication/23076/904631-Lessons-from-the- States-Responsible-Prison-Reform.PDF LaVigne NG, Bieler S, Cramer L, Ho H, Kotonias C, et al. 2014. Justice reinvestment initiative: state assess- ment report. Rep. 412994, Urban Inst., Washington, DC: https://www.urban.org/sites/default/files/ publication/22211/412994-Justice-Reinvestment-Initiative-State-Assessment-Report.PDF Lawrence A. 2008. State sentencing and corrections legislation: 2007 action, 2008 outlook. Rep., Natl. Conf. State Legis., Washington, DC. https://www.ncsl.org/print/cj/07sentencingreport.pdf Lowenkamp CT, Latessa EJ, Holsinger AM, 2006. The risk in action: What have we learned from 13,676 offenders and 97 correctional programs? Crime Delinquency. 52:77–93 Lowenkamp CT, Holsinger AM, Robinson CR, Cullen FT. 2012. When a person isn’t a data point: making evidence-based practice work. Fed. Probation. 76:11–20 Luna E, ed. 2017a. Reforming Criminal Justice: Punishment, Incarceration, and Release, Vol. 4. Phoenix, AZ: Ariz. State Univ. Luna E. 2017b. Mandatory minimums. See Luna 2017a, pp. 117–46 Lynch JP, Sabol WJ. 2001. Prisoner reentry in perspective. Rep., Urban Inst., Washington, DC. http:// webarchive.urban.org/UploadedPDF/410213_reentry.PDF Maruna S. 2011. Lessons for justice reinvestment from restorative justice and the justice model experience: some tips for an 8-year-old prodigy. Criminol. Public Policy 10:661–69 Mauer M. 2011. Sentencing reform: amid mass incarcerations—guarded optimism. Rep, Sentencing Proj, Washington, DC. https://www.sentencingproject.org/wp-content/uploads/2016/01/ABA- Sentencing-Reform-Amid-Mass-Incarcerations-Guarded-Optimism.pdf Mayer S, Patti FI. 2015. Beyond the numbers: toward a moral vision for criminal justice reform. Drake Law Rev. August:101–110 Natl. Assoc. State Budg. Office. (NASBO). 2002. State expenditure report 2001. Rep., NASBO, Washing- ton, DC. https://higherlogicdownload.s3.amazonaws.com/NASBO/9d2d2db1-c943-4f1b-b750- 0fca152d64c2/UploadedImages/SER%20Archive/nasbo2001exrep.pdf Natl. Assoc. State Budg. Office. (NASBO). 2017. State expenditure report: examining fiscal 2015–2017 state spending. Rep., NASBO, Washington, DC. https://higherlogicdownload.s3.amazonaws. com/NASBO/9d2d2db1-c943-4f1b-b750-0fca152d64c2/UploadedImages/SER%20Archive/ State_Expenditure_Report__Fiscal_2015-2017_-S.pdf Natl. Conf. State Legis. (NCSL). 2010. Significant state sentencing and corrections legislation 2007 and 2008. Rep., NCSL, Washington, DC. http://www.ncsl.org/research/civil-and-criminal-justice/ significant-state-sentencing-and-corrections-legis07.aspx Natl. Conf. State Legis. (NCSL). 2017. Statewide sentencing and corrections legislation. Rep., NCSL, Wash- ington, DC. http://www.ncsl.org/research/civil-and-criminal-justice/state-sentencing-and- corrections-legislation.aspx Office Justice Progr. (OJP). 2017. FY 2018 program summaries. Office Justice Progr. Rep., US. Dep. Justice, Washington, DC. https://ojp.gov/newsroom/pdfs/2018ojpprogramsummary.pdf Office Justice Progr. (OJP). 2018. FY 2019 performance budget. Office Justice Progr. Rep., US. Dep. Justice, Washington, DC. https://www.justice.gov/jmd/page/file/1034426/download Office Justice Progr. (OJP). 2019. FY 2020 performance budget. Office Justice Progr. Rep., US. Dep. Justice, Washington, DC. https://www.justice.gov/file/1144566/download www.annualreviews.org • Justice Reinvestment 337 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://www.nber.org/papers/w13380.pdf https://www.urban.org/sites/default/files/publication/23076/904631-Lessons-from-the-States-Responsible-Prison-Reform.PDF https://www.urban.org/sites/default/files/publication/22211/412994-Justice-Reinvestment-Initiative-State-Assessment-Report.PDF https://www.ncsl.org/print/cj/07sentencingreport.pdf http://webarchive.urban.org/UploadedPDF/410213_reentry.PDF https://www.sentencingproject.org/wp-content/uploads/2016/01/ABA-Sentencing-Reform-Amid-Mass-Incarcerations-Guarded-Optimism.pdf https://higherlogicdownload.s3.amazonaws.com/NASBO/9d2d2db1-c943-4f1b-b750-0fca152d64c2/UploadedImages/SER%20Archive/nasbo2001exrep.pdf https://higherlogicdownload.s3.amazonaws.com/NASBO/9d2d2db1-c943-4f1b-b750-0fca152d64c2/UploadedImages/SER%20Archive/State_Expenditure_Report__Fiscal_2015-2017_-S.pdf http://www.ncsl.org/research/civil-and-criminal-justice/significant-state-sentencing-and-corrections-legis07.aspx http://www.ncsl.org/research/civil-and-criminal-justice/state-sentencing-and-corrections-legislation.aspx https://ojp.gov/newsroom/pdfs/2018ojpprogramsummary.pdf https://www.justice.gov/jmd/page/file/1034426/download https://www.justice.gov/file/1144566/download CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 O’Hear M. 2017. The Failed Promise of Sentencing Reform. Santa Barbara, CA: Praeger Orszag PR. 2009. Memorandum to the heads of departments and agencies. Office Manag. Budg. Rep. M-10- 01, US Dep. Justice, Washington, DC. https://www.whitehouse.gov/wp-content/uploads/2018/ 10/m10-01.pdf Parks E, Cramer L, Flynn A, Love H, Ross C. 2016. Local justice reinvestment: strategies, outcomes, and keys to success. Rep. 2000903, Urban Inst., Washington, DC Petersilia J. 2014. California prison downsizing and its impact on local criminal justice systems. Harv. Law Policy Rev. 8:327–58 Pew. 2018. 35 states reform criminal justice policies through justice reinvestment: legislative action aims to increase public safety return on corrections spending. Rep., Pew Charit. Trusts, Washington, DC. https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2018/07/35-states-reform- criminal-justice-policies-through-justice-reinvestment Pfaff J. 2016. The complicated economics of prison reform. Mich. Law Rev. 114:951–81 Pfaff J. 2017. Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books Porter ND. 2017. State advances in criminal justice reform, 2016. Rep., Sentencing Proj., Washington, DC. https://www.sentencingproject.org/wp-content/uploads/2017/01/State-Advances-in-Criminal- Justice-Reform-2016-1.pdf Robinson L. 2017. Statement before the subcommittee on commerce, justice, science & related agencies, committee on appropriations. US House Represent., Washington, DC Sabol WJ, Couture H, Harrison PM. 2007. Prisoners in 2006. Bur. Justice Stat Rep. NCJ 219416, Office Justice Progr., Washington, DC. https://www.bjs.gov/content/pub/pdf/p06.pdf Sampson RJ, Loeffler C. 2010. Punishment’s place: the local concentration of mass incarceration. Daedalus 139:20–31 Sherman L, Farrington DP, Welsh BC, MacKenzie DL, eds. 2012.Evidence-Based Crime Prevention. New York: Routledge. Rev. ed. Spelman W. 2009. Cash, crime, and limited options: explaining the prison boom.Criminol.Public Policy 8:29–77 Stemen D, Rengifo AF. 2011. Policies and imprisonment: the impact of structured sentencing and determinate sentencing on state incarceration rates, 1978–2004. Justice Q. 28:174–201 Stemen D, Rengifo AF. 2012. Charting the evolution of structure and determinacy in state sentencing and corrections policies 1970–2010. Justice Res. Policy 14:1–46 Stern V, Allen R. 2007. Localism and criminal justice: suggestions for a new balance between national and local decision making. See Allen & Stern 2007, pp. 43–55 Stoll M, Raphael M. 2013. Why Are So Many Americans in Prison? New York: Russell Sage Subramanian R, Delany R. 2014. Playbook for change? States reconsider mandatory sentences. Rep., Vera Inst. Justice, New York. https://storage.googleapis.com/vera-web-assets/downloads/Publications/ playbook-for-change-states-reconsider-mandatory-sentences/legacy_downloads/mandatory- sentences-policy-report-v3.pdf Subramanian R, Moreno R. 2014. Drug war détente? A review of state-level drug law reform, 2009–2013. Rep., Vera Inst. Justice, New York. https://storage.googleapis.com/vera-web-assets/downloads/ Publications/drug-war-détente-a-review-of-state-level-drug-law-reform-2009-2013/legacy_ downloads/state-drug-law-reform-review-2009-2013-v5.pdf Taxman FS. 2013. 7 keys to “make EBPs stick”: lessons from the field. Fed. Probat. 76:76–85 Taxman FS, Pattavina A, Caudy M. 2014. Justice reinvestment in the United States: an empirical assessment of the potential impact of increased correctional programming on recidivism. Vict. Offenders 9:50–75 Tonry M. 2011. Making peace, not a desert: penal reform should be about values not justice reinvestment. Criminol. Public Policy 10:637–49 Tonry M. 2017. Community punishment. See Luna 2017a, pp. 187–204 Tonry M, Nagin DS, eds. 2017.Crime and Justice, Vol. 46: Reinventing American Criminal Justice. Chicago: Univ. Chicago Press Travis J, Western B, Stevens Redburn F. 2014. The Growth of Incarceration in the United States: Exploring Causes and Consequences. Washington, DC: Natl. Acad. Press 338 Sabol • Baumann A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://www.whitehouse.gov/wp-content/uploads/2018/10/m10-01.pdf https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2018/07/35-states-reform-criminal-justice-policies-through-justice-reinvestment https://www.sentencingproject.org/wp-content/uploads/2017/01/State-Advances-in-Criminal-Justice-Reform-2016-1.pdf https://www.bjs.gov/content/pub/pdf/p06.pdf https://storage.googleapis.com/vera-web-assets/downloads/Publications/playbook-for-change-states-reconsider-mandatory-sentences/legacy_downloads/mandatory-sentences-policy-report-v3.pdf https://storage.googleapis.com/vera-web-assets/downloads/Publications/drug-war-d�tente-a-review-of-state-level-drug-law-reform-2009-2013/legacy_downloads/state-drug-law-reform-review-2009-2013-v5.pdf CR03CH15_Sabol ARjats.cls December 3, 2019 16:39 Tucker S, Cadora E. 2003. Ideas for an open society: justice reinvestment. Rep., Open Soc. Found., New York. https://www.opensocietyfoundations.org/uploads/f44e9fba-e56c-4adf-b686-b0cc95de442a/ ideas_reinvestment.pdf US Census Bur. 2019. Annual survey of state government finances. Rep., US Census Bur., Washington, DC: United States Census Bureau. https://www.census.gov/programs-surveys/state.html Welsh-Loveman J, Harvell S. 2018. Justice reinvestment initiative data snapshot: unpacking reinvestment. Rep. 98361, Urban Inst., Washington, DC West HC, Sabol WJ, Greenman SJ. 2010. Prisoners in 2009. Bur. Justice Stat. Rep. NCJ 231675, Office Justice Progr., Washington, DC Western B. 2018. Homeward: Life in the Year after Prison. New York: Russell Sage Whitehead PR, Ward T, Collie RM. 2007. Time for a change: applying the good lives model of rehabilitation to a high-risk violent offender. Int. J. Offender Ther. Comp. Criminol. 51:578–98 Wong K, Fox C, Albertson K. 2014. Justice reinvestment in an “age of austerity”: developments in the United Kingdom. Vict. Offenders 9:76–99 www.annualreviews.org • Justice Reinvestment 339 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . https://www.opensocietyfoundations.org/uploads/f44e9fba-e56c-4adf-b686-b0cc95de442a/ideas_reinvestment.pdf https://www.census.gov/programs-surveys/state.html CR03_TOC ARI 1 November 2019 12:28 Annual Review of Criminology Volume 3, 2020 Contents The Discipline Engineer to Operations Research to Criminology: Quite a Trajectory Alfred Blumstein � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1 Control Theories Social Control Theory: The Legacy of Travis Hirschi’s Causes of Delinquency Barbara J. Costello and John H. Laub � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �21 Self-Control and Crime: Beyond Gottfredson & Hirschi’s Theory Callie H. Burt � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �43 Neighborhood and Spatial Processes Advances in Spatial Criminology: The Spatial Scale of Crime John R. Hipp and Seth A. Williams � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �75 Broken Windows, Informal Social Control, and Crime: Assessing Causality in Empirical Studies Charles C. Lanfear, Ross L. Matsueda, and Lindsey R. Beach � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �97 Gentrification, Land Use, and Crime John M. MacDonald and Robert J. Stokes � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 121 Contexts of Violence and Offending The Social Organization of Sexual Assault Shamus Khan, Joss Greene, Claude Ann Mellins, and Jennifer S. Hirsch � � � � � � � � � � � � � � � 139 Prison Culture, Management, and In-Prison Violence John Wooldredge � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 165 Learning from Criminals: Active Offender Research for Criminology Volkan Topalli, Timothy Dickinson, and Scott Jacques � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 189 Criminalization and Punishment Processes The Intergenerational Transmission of Criminal Justice Contact Christopher Wildeman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 217 A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . CR03_TOC ARI 1 November 2019 12:28 Wrongful Convictions Brandon L. Garrett � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 245 Mass Probation from Micro to Macro: Tracing the Expansion and Consequences of Community Supervision Michelle S. Phelps � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 261 Parole Release and Supervision: Critical Drivers of American Prison Policy Kevin R. Reitz and Edward E. Rhine � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 281 The Rise, Fall, and Afterlife of the Death Penalty in the United States Carol S. Steiker and Jordan M. Steiker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 299 Justice and Policing Justice Reinvestment: Vision and Practice William J. Sabol and Miranda L. Baumann � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 317 Conceptualizing Policing and Security: New Harmscapes, the Anthropocene, and Technology Cameron Holley, Tariro Mutongwizo, and Clifford Shearing � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341 Errata An online log of corrections to Annual Review of Criminology articles may be found at http://www.annualreviews.org/errata/criminol A nn u. R ev . C ri m in ol . 2 02 0. 3: 31 7- 33 9. D ow nl oa de d fr om w w w .a nn ua lr ev ie w s. or g A cc es s pr ov id ed b y C ar ne gi e M el lo n U ni ve rs it y on 0 4/ 05 /2 1. F or p er so na l us e on ly . 
work_cfkwynqts5cpjel7xsnmcnph64	----	Technology and Justice (George Grant) ©, 1989 Howard R. Woodhouse Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 22:20 Paideusis Technology and Justice (George Grant) Howard R. Woodhouse Volume 3, numéro 1, 1989 URI : https://id.erudit.org/iderudit/1073406ar DOI : https://doi.org/10.7202/1073406ar Aller au sommaire du numéro Éditeur(s) Canadian Philosophy of Education Society ISSN 0838-4517 (imprimé) 1916-0348 (numérique) Découvrir la revue Citer ce compte rendu Woodhouse, H. (1989). Compte rendu de [Technology and Justice (George Grant)]. Paideusis, 3(1), 18–19. https://doi.org/10.7202/1073406ar https://creativecommons.org/licenses/by/4.0/ https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/paideusis/ https://id.erudit.org/iderudit/1073406ar https://doi.org/10.7202/1073406ar https://www.erudit.org/fr/revues/paideusis/1989-v3-n1-paideusis05660/ https://www.erudit.org/fr/revues/paideusis/ Book Reviews George Grant, Technology and Justice (Anansi: Toronto, 1986). 135 pages. Paperback: $8.95 · George Grant's death in September, 1988 put an end to his reflections upon technology, modernity, and the exclusion of Platonism and even Chris- tianity from the modem world. As a Canadian philosopher, Grant raised fun- damental questions about these matters that are peculiarly our own. Neverthe- less, he did so in ways that evoke early traditions of Western thought whose language and ontology may seem quite alien to the modem reader. Technology and Justice, Grant's last book, is a collection of six essays on technology, faith and the multiversity, Nietzsche, research in the humanities, euthanasia, and abortion. They are all in a fundamental sense educational but it is upon 'Faith and the Multiversity' that I shall concentrate, since it is the book's central essay1 and most clearly concerned with formal education. The question that Grant asks is this: how is it possible for those who have faith to live in the multiversity where the dominant paradigm of knowledge, namely modem science, separates the process of knowing from that of loving? If, at the core of the modem university, there is a radical separation between intelligence and love, what meaning does Simone Weil's conception of faith as the experience of intelligence enlightened by love have (p. 38)? Clearly, the reductionist methods of science, its concern for objective knowledge, and in- strumentalist urge to dominate nature exclude the possibility of faith in Weil's sense. It is these aspects of science and their impact upon the university that leads Grant to refer to that institution as fundamentally divided, a multi-versity (p. 37).2 . Grant is deeply concerned about all of this because he takes Weil to have understood the foundations of faith most clearly. Like her, he believes the unity of intelligence/reason and love to underlie the most profound of human ex- periences and, in order to illustrate their fundamental unity, appeals to Plato's Republic, where the search for knowledge is identified wit,h the process of loving (pp. 72-73). Grant suggests two rays of hope that may prevent faith from being extin- guished from the multiversity. First, students and faculty may engage in reflec- tion that enables them to recall that the true, the good, and the beautiful are one. Unfortunately, such Platonic reflection is normally killed among students by the paradigm of modem science (p. 70). Second, western Christianity and modem science have both shared a desire to dominate the world. The arrogance of this position may be brought home to some in the multiversity who come to ap- preciate the emptiness at the core of modem science (p. 64 and pp. 76-77). Grant's hopes for a disenchantment with the paradigm of modem science and a turning towards faith appear forlorn. He was well aware of the power of the scientific paradigm but serious in his search for an alternative to the modem belief that human beings are distinctively free (pp. 74-75). He could not suc- cumb to the tenets of liberalism that we realise our freedom by making the world. as we want it, largely by means of modem science (pp. 57-61 and p. 65).3 18 Paideusis Was Grant correct to be so skeptical of modern thought? Two reasons suggest that he was not. First, there are .other kinds of reason than instrumental reason in the modem world. The work of the critical theorists, and particularly that of Jurgen Habermas, has shown that embedded in the Enlightenment project were also communicative and emancipatory reason based on shared norms and human needs that make possible non-instrumental views of human freedom. To the extent that the instrumental reason of modern science suppresses these shared norms and needs, it is to be criticised for hindering the advent of a more open and sharing society. Rather than turning back to Plato, the critical theorists articulate a critique of technology and science from within the assumptions of modemity.4 Second, a dialectical search for truth of this kind that poses human needs and their negation as the foundation of its critique surely has its roots in the Socratic method. Given the possibility of shared norms and expressed needs outside the paradigm of instrumental reason, the pursuit of truth need not be distinct from the search for the good and the beautiful. In this way the "modem experiment" is not as different from the Socratic enterprise as Grant supposes (p. 43), provided that it is not confined within instrumental reason. Grant was aware that he shared a common ground with those of us stand- ing within modernity but skeptical of technology and science, and particularly with those of us critical of U.S. imperialism. But he charted a different course that led him back to the Ancients in his quest for unity. His voice will be missed. Howard R. Woodhouse, University of Saskatchewan Notes 1 William Christian, ''Champion of Intellect in the Age of Technology'' The Globe and Mail, September 30, 1988. ' 2 George Grant, "The University Curriculum," Technology and Empire (Anansi Press, Toronto, 1969). ' 3 This was forcefully expressed in Grant's "In Defence of North America,'' ibid. 4 Jurgen Habermas, "Technology and Science as Ideology" Toward a Rational Society (Beacon Press, Boston, 1970). '. 3(1), (Fall)1989 19 
work_cgbbncg2wrakzfdn5khlb7auxq	----	[PDF] Race, conventional crime, and criminal justice: The declining importance of skin color | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1016/S0047-2352(99)00025-2 Corpus ID: 1641380Race, conventional crime, and criminal justice: The declining importance of skin color @article{DeLisi1999RaceCC, title={Race, conventional crime, and criminal justice: The declining importance of skin color}, author={M. DeLisi and Bob Regoli}, journal={Journal of Criminal Justice}, year={1999}, volume={27}, pages={549-557} } M. DeLisi, Bob Regoli Published 1999 Psychology Journal of Criminal Justice Blacks in the United States are arrested, prosecuted, convicted, and incarcerated in numbers disproportionate to their percentage of the population. One explanation is that racial discrimination against Blacks pervades the American system of criminal justice. This study examined the nature and extent of racial discrimination in the criminal justice system by evaluating five propositions using data from extant literature. Little evidence was found to support the allegation that the criminal… Expand View via Publisher soc.iastate.edu Save to Library Create Alert Cite Launch Research Feed Share This Paper 32 CitationsBackground Citations 11 Results Citations 1 View All 32 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency A comment on racial discrimination in prisons in England and Wales W. Chui Sociology 2001 Save Alert Research Feed Black Supporters of the No-Discrimination Thesis in Criminal Justice Shaun L. Gabbidon, Kareem L. Jordan, Everette B. Penn, George E. Higgins Sociology 2014 6 View 1 excerpt, cites background Save Alert Research Feed Race, Ethnicity, Crime and Criminal Justice in Canada S. Wortley, Akwasi Owusu-Bempah Political Science 2012 11 Save Alert Research Feed Black and white differences in the perception of justice. D. Wiley Psychology, Medicine Behavioral sciences & the law 2001 9 Save Alert Research Feed The Affordable Hypothesis: Punitive beliefs, violent beliefs, and race Matt DeLisi Psychology 2001 11 Save Alert Research Feed The imprisoned nonviolent drug offender: Specialized martyr or versatile career criminal? Matt DeLisi Psychology 2003 27 Save Alert Research Feed Does neighborhood crime matter? A multi-year survey study on perceptions of race, victimization, and public safety Wonhyuk Cho, A. Ho Psychology 2018 4 Save Alert Research Feed Criminal careers behind bars. M. DeLisi Medicine Behavioral sciences & the law 2003 106 Save Alert Research Feed Criminal Careers Behind Bars D. Cohen, Brame Dean 2003 PDF View 1 excerpt, cites results Save Alert Research Feed Perceptions of the Canadian criminal justice system among Nigerians: Evidence from a local Church in Winnipeg, Manitoba Temitope B. Oriola, Charles T. Adeyanju Sociology 2011 2 View 1 excerpt, cites background Save Alert Research Feed ... 1 2 3 4 ... References SHOWING 1-10 OF 92 REFERENCES SORT BYRelevance Most Influenced Papers Recency Race and criminal justice R. Reiner Sociology 1989 30 Save Alert Research Feed Racial Disparities in the Criminal Justice System: A Summary J. Petersilia Psychology 1985 100 View 2 excerpts, references background Save Alert Research Feed Racial Politics, Racial Disparities, and the War on Crime M. Tonry Psychology 1994 87 Save Alert Research Feed THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM William Wilbanks Brooks/Cole (a div. of Wadsworth Pub W. Wilbanks Political Science, Psychology 1986 260 View 2 excerpts, references background Save Alert Research Feed The Changing Forms of Racial/Ethnic Biases in Sentencing Marjorie S. Zatz Sociology 1987 258 View 2 excerpts, references background Save Alert Research Feed Juvenile Offenders: Prevalence, Offender Incidence, and Arrest Rates by Race D. Huizinga, D. Elliott Psychology 1987 136 View 1 excerpt, references background Save Alert Research Feed Race and Involvement in Common Law Personal Crimes. M. J. Hindelang Sociology 1978 399 Save Alert Research Feed Unequal Justice: A Question of Color C. Mann Sociology 1993 217 View 2 excerpts, references background Save Alert Research Feed Crime, Culture and Ethnicity T. Maden Psychology 1993 11 View 1 excerpt Save Alert Research Feed Race and imprisonment decisions in California. S. Klein, J. Petersilia, S. Turner Psychology, Medicine Science 1990 105 Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract 32 Citations 92 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_ch3xut42afb7jljyaruypynzmq	----	The Geography of Justice: Assessing Local Justice in Colombia’s Post-Conflict Phase Introduction Over the last ten years in Colombia, there has been an increasing interest in studying the role of institutions relating to both the country’s economic development and the construction of democracy. According to substantial literature on the subject, institu- tions have a central role in democracy-build- ing. However, various parties question the dimensions of this role and the way it relates to other variables such as violence, culture, and the market (Acemoglu & Robinson 2012; González, Bolívar, & Vásquez 2003; Gutiérrez 2010; López 2010; Rodríguez & Portes 2012; Romero 2003). This article analyzes the role of state insti- tutions at the local level in Colombia. The focus is not on exploring national security or political regime issues (although these top- ics are mentioned), but rather on the impli- cations stemming from state incapacity or even deficiency in terms of the population’s rights. The argument goes as follows: popula- tions who live in the peripheral areas of Colombia, where state institutions are weak or non-existent, are permanently vulnerable to violations because they are not served by institutions that uphold their rights. These are not exceptional cases of communities lost in the national geography, but rather are part of a widespread rights violation. According to calculations presented in The Right to a State (Garcia Villegas and Espinosa 2013), the State is not present in 60 per cent García-Villegas, M and Espinosa, J R 2015 The Geography of Justice: Assessing Local Justice in Colombia’s Post-Conflict Phase. Stability: International Journal of Security & Development, 4(1): 41, pp. 1–21, DOI: http://dx.doi.org/10.5334/sta.gc RESEARCH ARTICLE The Geography of Justice: Assessing Local Justice in Colombia’s Post-Conflict Phase Mauricio García-Villegas* and Jose Rafael Espinosa† This article combines descriptive empirical research with theoretical reflections to offer policy guidelines on what the role of local justice institutions in Colombia’s post-conflict phase should be. The article is divided into two parts. In the first, we present empirical evidence to illustrate the ways in which justice operates differently across the territory. In addition to illustrating these disparities, we also demonstrate the connection between these disparities and some phenomena relevant to understanding the Colombian conflict. Based on these findings, the second part of this article defines the state-building challenge confronted by the Colombian State during the post-conflict phase. Following this part, we propose a solution to this state-building challenge: the State must adopt a combination of efficacy and justice, and we provide guidelines on how a post-conflict justice system can operate to achieve that combination. * Professor at Universidad Nacional in Bogotá, Colombia; Fellow at Institute for Legal Studies at the University of Wisconsin-Madison; Founding Member of the Center for Law, Justice and Society-Dejusticia, Colombia mvillegas@wisc.edu † Associate Researcher at Center for Law, Justice and Society-Dejusticia; Graduate student at Harris School of Public Policy – University of Chicago, United States jespinosa@dejusticia.org stability http://dx.doi.org/10.5334/sta.gc mailto:mvillegas@wisc.edu mailto:jespinosa@dejusticia.org García-Villegas and Espinosa: The Geography of Justice Art. 41, page 2 of 21 of the national territory, an area that is inhab- ited by more than six million people. These people lack what Hannah Arendt called ‘the right to have rights’ – the right to live in a political community in which their rights are recognized and protected.1 The central state owes a historical debt to these people which must be paid and, from a constitutional point of view, represents a systematic and flagrant violation of citizen rights similar to (or possibly worse than) violations that the Constitutional Court’s jurisprudence defines as an ‘unconstitutional state of affairs.’ In The Right to a State we used the expres- sion ‘institutional apartheid’ to describe what is currently happening in broad areas of the national territory in which the State is unstable or non-existent. As a result, the population is affected by the fact that their rights are not recognized or protected. Although the situation does not correspond exactly to the origin of the word ‘apartheid,’ which is closely linked to the South African context, the book defends the idea that even though the situation in Colombia is differ- ent, the discriminatory effects are similar. Institutional abandonment of large portions of the country results in segregation of the people who live there. While in South Africa segregation was based on the prevalence of one race over another, in Colombia it is founded on the prevalence of some regions over others. In this article we answer the following question: given the current peace process between the Colombian Government and the guerrilla group, and given that eventual agreements from that process will effect an enormous institutional challenge in the peripheral regions of Colombia, how can the local state be strengthened in order to address that institutional apartheid? In addi- tion, what role does justice play in such an institutional strengthening plan? This article is divided into two parts. In the first, we present empirical evidence to illustrate the ways in which justice operates differently at the regional level. In addition to illustrating geographic disparities in that operation, we also demonstrate the con- nection between the disparity and some phenomena relevant to understanding the Colombian conflict. Based on these findings, the second part defines the state-building challenge confronted by the Colombian State. We defend the idea that in order to confront this challenge, the State must adopt a combination of efficacy and justice, and we provide guidelines on how a post-conflict justice system should operate. The performance of (formal) local justice In this first part, we present the results of an empirical investigation that demonstrates the disparate functioning of (formal) justice in the country. We constructed an indicator on local justice performance that evaluates both presence and efficacy of formal justice institutions. Presence This first section evaluates the presence of justice representatives in the Colombian regions. It is a formal measurement that takes into account the presence of justice representatives in the territory and gives an idea of the geographic distribution of judges in Colombia, but it does not judge the effi- cacy or efficiency of their presence. The following Map 1 shows the distribu- tion of judges in the Colombian territory in July 2012, taking into account the popula- tion and size of the municipality.2 In order to address the dispersion of the data, we grouped municipalities based on their differ- ences from the national average.3 In this case, the municipalities ‘without data’ are non- municipalized and their jurisdiction is the responsibility of neighboring municipalities. As this Map 1 shows, the presence of judges is concentrated in the center of the country, plus two small niches: in the north around Cartagena and Barranquilla, and in the south in Pasto and the surrounding area. The presence of justice representatives should not only be analyzed in terms of quantity, but also in terms of quality. The García-Villegas and Espinosa: The Geography of Justice Art. 41, page 3 of 21 Map 1: Presence of Judges. Source: Superior Judicial Council (Consejo Superior de la Judi- catura – CSJ), National Administrative Statistics Department (Departamento Administrativo Nacional de Estadistica - DANE), Agustin Codazzi Geography Institute (Instituto Geografico Agustin Codazzi– IGAC) (2012). García-Villegas and Espinosa: The Geography of Justice Art. 41, page 4 of 21 Colombian State created the justice career track to guarantee the quality of justice rep- resentatives. In theory, only the best judges occupy public positions and rarely is (e.g. in the case of temporary licenses) the office occupied by provisional judges. The justice career track mechanism also serves to guar- antee the judges’ independence with respect to political representatives and other judges. This political independence is due to the fact that provisional representatives are named directly by the magistrates of their respective hierarchical superior tribunal.4 The judicial career track – similar to many public policies – has had a different impact in the various regions. We constructed a database of the provisional nature of judicial offices in the country based on information collected from administrative courts of the sectional judicial councils.5 The following Map 2 illustrates how pro- visionality is distributed across the country. This map demonstrates two notewor- thy aspects of the way in which the justice career track operates in Colombia. First, the justice career track does not function in a great part of the territory. According to information provided by the sectional judicial councils, temporary judges occupy 31 per cent of justice posts.6 In regional terms, the percentage of all provisional judges is equal to or greater than 80 per cent in 425 municipalities (from a total of 1103). Second, the map shows that provi- sionality is not randomly distributed across the country. As in previous maps, provision- ality – associated as much with a lack of merit as with the risks of clientelism – tends to concentrate in peripheral municipalities. Efficacy Second, we measure the efficacy of the jus- tice system at the regional level, understood as the system’s capacity to reach expected objectives. We limit ourselves to the efficacy of the criminal system for two reasons: first, the efficacy of criminal justice (as opposed to civil justice, for example) is a good indicator of state capacity to confront other social actors who compete for the monopoly on the use of force (Garcia-Villegas 2008); sec- ond, the criminal system is the only process- ing system in Colombia to offer a modicum of trustworthy information about its own management.7 In addition, we are focusing on the justice system’s efficacy in sanctioning homicides that occurred in each municipality. There are three reasons why we focus exclusively on homicides. First, they are the most seri- ous crimes and as such should be prioritized in judicial processing. Second, homicides are the most registered of crimes (as it is more difficult for a homicide to go unnoticed than a scam, for example). Finally, by limiting our- selves to homicide, we dodge an objection that could be made about our indicator, that is, whether the desirable result of processing is always a sentence. For some crimes, such as stealing a carton of milk, this is a point of discussion in judicial and criminal policy debates, as well as in the philosophy of law. In the case of homicides, however, the attor- ney cannot avoid formulating a charge, nor the judge a sentence, because of the serious- ness of the crime. To measure the performance of justice, we have therefore constructed an ‘efficacy rate.’ This indicator measures the percentage of cases entered into the system for which a sen- tence is formulated. In addition, when evalu- ating the number of sentences compared to the total entries, it takes into account the magnitude of the justice demand in the municipality.8 It is necessary to make three methodo- logical clarifications before moving on to the results. First, of the total municipalities, those for which there is a lack of complete information (number of entries, formulation of charges, and formulation of sentences), or those whose information suggests that there was an error (e.g. more sentences than charges or entries) were excluded. This reduced the number of municipalities from 1103 to 848. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 5 of 21 Map 2: Provisional Nature of Justice Offices. Source: Sectional judicial councils (Consejos sec- cionales de la judicature) (2013). Authors’ own calculations. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 6 of 21 Second, due to the availability and quality of information, we limited ourselves exclu- sively to criminal processes under the accu- satory penal system (Law 906 of 2004). For each municipality, we added existing infor- mation from the system’s period of validity, and based the efficacy analysis on informa- tion for each municipality. 9 Third, we measured the level of efficacy in the sanction of homicides that took place in a determined municipality. This does not nec- essarily mean that the criminal process took place in that municipality. Instead, it means that we are not measuring justice that physi- cally operates there, but rather justice that is effectively applied there. This does not repre- sent a problem for the research. We are inter- ested more in measuring the extent to which the system fulfills its purpose in the territory than in physical institutional presence. Map 3 shows the spatial distribution of the efficacy indicator.10 As the map shows, ‘high’ and ‘very high’ efficacy tends to concentrate in the depart- ments of Huila, Casanare, Tolima, the cof- fee region, to a lesser extent in Antioquia, Cundinamarca, Boyacá, Santander, and a few municipalities in Bolivar and Atlántico. Meanwhile, ‘low’ and ‘very low’ efficacy is concentrated in Nariño, Putumayo, Casanare, Meta, Vichada, Chocó, southern Córdoba, Catatumbo, southern Bolívar, and La Guajira. The majority of municipalities with ‘low’ and ‘very low’ efficacy are in corridors that share various features including: i) presence of armed groups; ii) areas of illegal crops; iii) areas of input transport for the produc- tion of cocaine; iv) presence of illegal mining; and v) low quality of institutions. The most noteworthy trait of the map is that these fac- tors operate in a context of local-level judi- cial inefficacy, which allows these activities to continue at low criminal cost. These maps do not always allow for defini- tive conclusions to be made about the insti- tutional capacity in a municipality. There are situations in which the justice and munici- pal government indicators are very good, but a more detailed analysis of the context, the history, and the internal power relations of the municipality show that institutional power only appears strong. For example, the department of Casanare – an example of institutional seizure or ‘coopted reconfigu- ration of the State’ – seems to have strong justice indicators, but in reality, they are not as strong as might be expected (Garay, De León, & Salcedo, 2010; García Villegas & Revelo Rebolledo, 2010; Hellman, Jones, & Kaufmann, 2000). The performance of local justice Until now, this paper has examined how the justice system’s presence and efficacy in the prosecution of homicides are distributed. Based on this analysis, we constructed a global indicator of local justice performance, taking these two dimensions into account. The indicator is composed of two variables: presence of judges and an efficacy rate for each municipality. The indicator includes a scale from 0 to 100, where 100 corresponds to the highest score and 0 to the lowest. This score was obtained by weighting the qualifications from the two components of the index,11 assigning a weight of 60 per cent to efficacy and 40 per cent to presence. We made this methodological decision because we believe that even though presence is an important dimension of justice, in many municipalities this presence is more nominal than real – just because there is a judge in a munici- pality does not mean that he/she imparts justice. This was one of the conclusions of Judges without a State (García-Villegas 2008). In this sense, a municipality with fewer judges who are more effective would be preferable to one with more judges who are less effective. The different possible scores of the index are grouped into five categories, which cor- respond to the five levels of local justice per- formance (see Annex 1). The Table 1 shows how the municipalities at different levels of the index are distributed. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 7 of 21 Map 3: Efficacy. Source: AGO (Fiscalía General de la Nación). Authors’ own calculations. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 8 of 21 As Table 1 shows, the majority of munici- palities (356) are distributed in the medium level of local justice performance.12 The low- est category is comprised of 136 munici- palities, a number greater than that of the two highest categories put together: 97 municipalities are in the ‘high’ category while 20 are in the ‘very high’ category. The table also shows a noteworthy result: with respect to the national average, more than a third of the municipalities of the country (375 of 848) have ‘low’ or ‘very low’ levels of performance. The following Map 4 shows these munici- palities spatially distributed by category. This map highlights patterns seen in previous maps. The municipalities with ‘medium,’ ‘high,’ and ‘very high’ levels of performance are found mainly in the center of the country, and to a lesser extent in the Caribbean Coast, Valle del Cauca, and the departments of Meta and Casanare. On the other hand, the municipalities with ‘low’ or ‘very low’ levels of justice perfor- mance tend to be located in the peripher- ies, especially in the departments of Nariño, Chocó, Putumayo, Caquetá, and Vichada. In Córdoba, Magdalena, Atlántico, and Sucre the ‘low’ and ‘very low’ performance of jus- tice coincides with the most southern areas of the departments, which are characterized by difficult access, floods and challenging transport channels which isolate the munic- ipalities from regional centers. Different expressions of local justice performance in the territory Justice does not operate in isolation in a municipality. On the contrary, its perfor- mance is related to the context in which the everyday workings of the justice system take place. This section analyzes the relation- ships between the local justice performance indicator and various socio-economic and violence-related variables that we thought relevant. We are interested in identifying differences when comparing the justice indicator with these other variables in dif- ferent categories of the municipality. We can thereby observe that municipalities with a ‘low’ or ‘very low’ level of local justice per- formance present similar behavior in other institutional dimensions. The disparate per- formances of justice are related to the exist- ence of coca crops, forced displacement, presence of illegal armed groups, percentage of Afro-Colombians, and percentage of indig- enous people.13 Graph 1 illustrates the relationship between the average density of coca crops in a group of municipalities and local jus- tice performance.14 The difference in crops between the five categories of local justice performance (very high, high, etc.) is strik- ing. Municipalities catalogued with ‘low’ and ‘very low’ performances in terms of local justice have an average of twelve per cent and thirteen per cent crop density respec- tively (in other words, on average twelve to thirteen per cent of each square kilometer in these municipalities is dedicated to coca crops), while in other municipalities the density does not go above two per cent. The performance of justice is weak where the density of coca crops is greater. This does not necessarily mean that in municipalities with a very low justice per- formance there is more drug trafficking than in other municipalities. There are sim- ply more crops. The differences in forced displacement15 between different categories of justice are quite large, as seen in Graph 2. The Level Number of municipalities % Municipalities Very low 136 16% Low 239 28% Medium 356 42% High 97 11 % Very high 20 2 % Total 848 100 % Table 1: Municipalities by levels of local jus- tice performance. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 9 of 21 Map 4: Local justice performance. Source: SJC/AGO, own calculations. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 10 of 21 municipalities with very low local justice per- formances have more than double the rate of displacement when compared to those clas- sified in the other four categories. The statis- tical results allow us to conclude that a lower level of local justice performance implies a greater number of displaced people. The results found in relation to the coca crop dynamics and to displacement are convincing and reveal two facets of the Colombian armed conflict. On the one hand, the results allow for the identification of one of the illegal armed groups’ greatest eco- nomic sources, and on the other, they reflect the vulnerability of rights generated by the conflict. Tragically, local justice is weaker in areas with more coca crops and where dis- placement rates are greater. These trends gave notable results. In gen- eral, municipalities with ‘high’ and ‘very high’ levels of justice performance had a lesser presence of illegal armed groups. In Graph 1: Density of crops and levels of local justice performance. Source: SIMCI 2012; Authors’calculations. Graph 2: Average displacement rate by categories of local justice performance. Source: Vice President’s Office 2005–2011. Authors’ calculations. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 11 of 21 municipalities with very high justice per- formance rates there was no paramilitary or BACRIM (bandas criminales, former paralim- itary groups) presence from 2000 to 2012. The guerrilla presence comprised almost a quarter of the overall presence of illegal armed groups in municipalities of ‘medium’ justice performance rates and almost a fifth of the presence of illegal armed groups with ‘low’ or ‘very low’ performance rates. In terms of guerrilla presence, there is a clear negative relationship: the greater the local justice performance, the lower the num- ber of years of guerrilla presence. In terms of paramilitary and BACRIM presence, the result is different, because the municipali- ties with weaker justice rates are different from those municipalities who experienced the presence of these groups for a greater number of years. Except in municipalities with high levels of justice performance, the paramilitaries and the BACRIM were present no matter the institutional justice capac- ity. In general terms, whereas the guerrillas aim to fight against the State, the paramili- taries appropriate or strategically use the State (García Villegas & Revelo Rebolledo 2010; López 2010; Romero 2003; 2007). It is also worth noting that the BACRIM pres- ence is greater than that registered by the paramilitaries, which suggests that the demobilization process did not reduce, but rather increased, the presence levels of these groups in the municipalities, as illustrated in Table 2. These two results allow us to argue that the presence of the guerrilla tends to congre- gate in municipalities with weaker justice, while the paramilitaries or the BACRIM have a more homogenous presence in municipali- ties, regardless of their justice performance levels. This coincides with results shown in previous research (García-Villegas 2008). The bias in guerrilla presence and relative homogeneity in paramilitary and BACRIM presence allows us to address each group’s process of capturing institutions (or not). The guerrillas have skirted to the periphery of the country, where institutions are weaker, while the paramilitaries have managed to stay in important urban areas where they have used justice to achieve their military and eco- nomic objectives. In terms of ethnic composition, there are important differences between the five categories of the local justice index. Municipalities with ‘very low’ justice perfor- mance levels have greater levels of indig- enous and Afro-Colombian people. Graph 3 shows that municipalities located in the low- est justice category have an average of 16 per cent and thirteen per cent of Afro-Colombian and indigenous populations respectively, while in other justice categories the popula- tion does not rise above nine per cent and six per cent respectively. The municipalities with a very low level of justice performance have greater numbers of displaced people, greater hectare den- sity of coca crops, and a greater number of Category of justice Number of years with illegal groups presence 2000–2012 Guerrilla Paramilitaries (2000–2006) BACRIM (2007–2012) Very high 1.3 0 0 High 2.9 1.03 1.8 Medium 4.2 1.68 2.69 Low 5.3 1.66 2.3 Very low 5.1 1.4 2.3 Table 2: Presence of illegal armed groups broken down in years between 2000 and 2012. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 12 of 21 indigenous and Afro-Colombian people in their population. A similar phenomenon occurs in terms of the presence of the guer- rilla groups, which is found less often in municipalities with ‘high’ and ‘very high’ lev- els of justice performance. From Institutional Apartheid to the Constitutional State: Local Justice in the Post-Conflict Phase Political institutions in Latin America are embedded in a social and institutional context much different from the modern European state model, which the Latin American countries have inherited. This has, in part, resulted in the common dispar- ity between norms and social realities that has characterized Colombian institutional life since time immemorial. The existence of the modern state can be claimed when the fulfillment of three conditions or basic characteristics occurs: efficacy, legality, and legitimacy (Bobbio 2005). The State in Latin America has deficiencies in each one of these three characteristics. For example, state effi- cacy is not always attained legitimately and, on occasion, the legitimate state is incapable of presenting itself to powerful individuals and groups, be they legal or illegal. These situations are particularly common in certain spaces, generally (but not exclusively) located in the periphery of the national territory. Based on a constructivist, tiered, and prag- matic vision of known state institutions (García-Villegas 2014; Migdal 2011; Portes & Smith 2010; Rodríguez & Portes 2012), we will now try to respond to the following question: how can public policy address the enormous challenge of incorporating un- institutionalized areas of the country into the social rule of law? What path must be taken to respond to this challenge?16 This question is even more relevant today as Colombia faces a post-conflict phase in which opportunities to carry out historic reforms will present themselves, as a result of the eventual peace agreements. In effect, the draft agreements published until recently imply large-scale social, economic, and politi- cal development initiatives in the periphery of Colombia. In concrete terms, the agree- ments foresee large-scale rural reforms, an increase in political participation, and the elimination of drug trafficking. To apply these eventual agreements, however, there must exist local institutions with the capacity Graph 3: Percentage of Afro-Colombians and indigenous people by municipality by category of local justice performance. Source: Dane 2012. Authors’ calculations. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 13 of 21 to implement the public policy necessary to enforce the objectives of the agreements. The design of these institutions and public policies is still to be defined and will be the subject of intense debate in years to come. Discussions on the post-conflict phase often assume that these peripheral areas already have the institutional capacity to implement the agreements, which is not true. Until now, discussions on transitional jus- tice in Colombia have focused mainly on the dilemma between justice and peace. That is, how to resolve the tension between the need for accountability by those ultimately responsible for crimes, and the need to com- promise with these actors so that they aban- don weapons and enter politics. This debate, though fundamental, has been restricted to a limited definition of justice. It under- stands justice exclusively as the prosecution of those responsible or the guarantee of the rights of the victims, and ignores the need for justice dedicated to resolving daily con- flicts that present themselves in transitional areas. This is problematic because it ignores the objective of social peace, a post-conflict goal closely related to the success of the tran- sition. For the post-conflict phase, we have to think not only about the kind of justice we implement to deal with those respon- sible from all sides of the conflict, but also about which institutions will be required to consolidate peace in the regions through the resolution (formal and/or informal) of social conflicts. In order to respond to these questions, we first look at three features of the modern state that were mentioned at the beginning of The Right to the State: efficacy, legality, and legitimacy. Which path should we take, in institutional terms, to arrive at an efficient, legitimate, and legal state? Given that the legitimacy of the consti- tutional state is attained through legality and protection of citizen rights, here we propose the concept of ‘lega-timacy’ which involves and coordinates both purposes (legality and legitimacy). We assume that the constitutional state or, more precisely, the social rule of law, pursues two fundamen- tal or interdependent objectives: 1) efficacy, and 2) ‘lega-timacy.’17 Each of the two axes in the following graph (horizontal and vertical) represent the two objectives mentioned in a continuum from low to high. Based on these two axes, it is possible to compare and contrast the differ- ent scenarios featuring state institutions, as shown in the following graph. Types of Institutions The graph above demonstrates the wide range of possible scenarios, from extreme institutional weakness to extreme state authoritarianism, passing through the social rule of law (ROL), which possesses a type of contained strength. This graph also illus- trates how the vulnerability of many sectors of the population can originate not only in the excess of state power but also in its defi- cit. The constitutional state is therefore both an effective and a contained power. The ideal scenario is represented in the upper right, where there is a maximum of both variables. ROL is found there, with a greater degree of efficacy and legitimacy.18 At the other end of the spectrum – the lower left – we find the opposite of ROL – extremely weak institutions with little ‘lega-timacy.’ This area represents institu- tional apartheid (among other situations), García-Villegas and Espinosa: The Geography of Justice Art. 41, page 14 of 21 a situation characterized by vulnerability and discrimination against the population. Not all of what falls under this area of extreme instability can be characterized as institu- tional apartheid, due to the fact that not all institutional weakness implies a severe degree of discrimination. For example, in some isolated areas inhabited by indigenous communities, institutional incapacity is sup- planted by strong community cohesion. The two intermediate cases are explained in the following way: the first, in the upper left, combines a maximum of ‘lega-timacy’ with a minimum of efficacy. This situation is more theoretical than real, given that it is dif- ficult to conceive of a society under a nominal state (that has no power) and in which events occur in a legal and legitimate way (except perhaps something close to anarchism). In the far lower right we find authoritarian institutions in which a maximum exercise of power is combined with minimum ‘lega- timacy.’ This type of state maintains peace and imposes order within the territory, and is able to guarantee certain rights. However, it does so without legitimacy or legality. Many attempts to bring the State to the Colombian periphery have been reduced to the creation of this type of state. It should also be added that these are extreme cases and that, as the graph shows, it is possible to imagine intermediate cases (in fact, the Latin American and urban ver- sions of ROL, in general terms, could be cat- egorized as in the upper right square, but at a point close to the center of the graph). It is also important to acknowledge that it is not always easy to spatially identify each case. Here, we have said that institutional apart- heid is a common phenomenon in the geo- graphic periphery of the country. However, this phenomenon exists in the cities, in mar- ginalized neighborhoods and rural areas that we could call internal peripheries, where the social rule of law is relatively strong. In addition, it is important to note that institutional apartheid is not always apparent and easy to detect. There are cases in which legality, and some legitimacy, are found in regions where institutions have been cap- tured or coopted by armed or illegal actors. This is the case of the mafia-state, which not only adopts the appearance of legality, but also defends and operates with the law while distorting its meaning and using legality to favor illegality. It is even possible that in these cases, the population is overtaken. This is an example of a state outside of constitu- tional order, which nevertheless follows its judicial forms and routines. It also conceals institutional capture which results in domi- nation and oppression, perhaps worse than that of the authoritarian state. We therefore return to the question with which we began this final section. How can we transition from an institutional apartheid state to ROL? We have identified five paths, each one of them represented by a line that unites extreme institutional weakness to ROL. The first of them, path A (the gray continuous line) is defended by military regimes in Colombia and Latin America, and conceives of the con- stitutional challenge as a task that starts and ends with pacification of the territory, as the imposition of order without legitimacy. This path is not only unacceptable from an ethical and legal point of view (as it sacrifices the rights of one part of the population to improve the conditions of the rest), but also from an empirical point of view. Experience shows that there is no guarantee that this option will be successful. Indeed, the imposi- tion of force without human rights, democ- racy, or control instead seems to reproduce violence and institutional weakness in the Latin American context. The second path, B (in dotted gray), pro- poses to reach both objectives of ROL but based on sequential logic in which efficacy comes first. This path seeks to pacify the territory first (expelling or defeating the enemy) and then, only when this objec- tive has been achieved, concerns itself with the legality and legitimacy of the State. The National Territorial Consolidation Plan García-Villegas and Espinosa: The Geography of Justice Art. 41, page 15 of 21 adopted by the national government seems to have adopted this model (García Villegas & Espinosa Restrepo 2012; Palou 2011). Once pacification is achieved, a transition from military to civilian government is realized. The protection of the citizen is of the utmost importance in this transition. Finally, when this protection is consolidated, the third phase of stabilization begins and economic, social, and institutional development can be consolidated. Although path B is attractive from a mili- tary standpoint and in terms of creating order, it has been demonstrated as non- conducive – and even counterproductive – to the creation of ROL. In many cases, this first stage of military domination translates to serious human rights violations. The third path, C, originates in a logic contrary to the others. Instead of prioritiz- ing efficacy, this path emphasizes legitimacy. This path consists of introducing institu- tional reforms with evident legitimacy in social environments characterized by institu- tional crisis. The expectation is that popular support for the new institutions will result from these reforms, and combined with their intrinsic legitimacy, will serve to strengthen state institutions. This perspective inspired some of the institutional designs defined by the 1991 Constitution, in particular, those related to decentralization and citizen par- ticipation mechanisms (Gutiérrez 2010; Sánchez & Chacón 2006). This path is a type of ‘democratism’ according to which demo- cratic routines are enough to achieve social rule of law. This assumes that democratic legitimacy could remedy weaknesses in insti- tutional capacity through the passage of time and with the help of popular mobiliza- tion. However, after more than twenty years of implementing the Constitution, the limits and even dangers of this view have become evident. It is not only probable that ‘lega- timacy’ did not bring efficacy in these areas but that even worse, new democratic institu- tions were captured and corrupted by crimi- nal organizations (García Villegas & Revelo Rebolledo 2010; Gutiérrez 1996, 2010b; López 2010). It is worth noting the affirma- tion of Albert Hirschman (1977) according to whom, ‘not all good things come together.’ The fourth path, D (see the continuous line), supposes that it is possible to simulta- neously construct all three levels of the ROL building. This is the best path from the per- spective of constitutional axiology (García Villegas & Uprimny 1999). In practice, how- ever, the situation poses many difficulties. This path is feasible in territories in which the State is more nominal than effective and in which there is no competition from another armed actor. However, what hap- pens when the State finds itself in a territory occupied by an armed actor that imposes its law on inhabitants? In these cases, the first task of the State consists of gaining military control and monopoly on the use of force in the area. This is what the international litera- ture widely recommends: in the construction of the State, security must be prioritized, but with legality (Fukuyama 2004; Jensen 2008; Ottaway 2002; Rubin 2008). Opening mech- anisms of broadened political participation without consolidating a minimum of efficacy has translated to an increase in violence. The literature, however, falls short of indicating how to achieve this ideal combination of security and legality. How can this minimum of security be achieved within the constitu- tional framework? Perhaps the response to this question would be the creation of a fifth path, denoted as E. Path E would recognize the practical need for sequencing between the two objectives pursued (efficacy and legality / legitimacy), but would condition its success on the effec- tive presence of the justice system in this transition. We have stated previously that in Colombia, we must try to achieve three features of ROL at the same time. This is a normative ideal that should be maintained. However, in prac- tice, absolute concomitance is frequently a difficult goal to achieve. This is due to the fact that there is a conditionality on these García-Villegas and Espinosa: The Geography of Justice Art. 41, page 16 of 21 factors.19 Path E endeavors to respond to this difficulty. It demands that military action tar- geting the reduction of armed actors in the territory is accompanied by strong judicial control directed at the protection of funda- mental rights of those who live in the terri- tory in which the military operations take place. Some aspects of the other objective (‘lega-timacy’), such as broadened citizen participation, social investment, or the exer- cise of representative democracy, could be temporally different but always under the vigilance and control of the justice system. In this way, path E paves the way to a type of spatially and temporally exceptional state. In the literature on state-building in transi- tional contexts, state formation is always pre- sented as a process whose objective consists of creating an effective state that imposes itself on powerful actors who question its power. This means that in general, it collides with the objective of achieving an institu- tional framework characterized by legitimacy and legality. The National Consolidation Plan, formed some years ago in Colombia with the idea of bringing the State to periph- eral territories affected by the armed con- flict, seems to obey this supposition (García Villegas & Espinosa Restrepo 2012; Palou 2011). However, the collision between these two objectives is not inevitable. Our hypoth- esis is that the strengthening of local justice can serve as a bridge for the concomitant achievement of both purposes. Our hypothesis is supported by the fact that justice has the ability to ‘domesticate’ the force necessary for the State to impose itself on armed actors who operate in an area. In this process of the domestication of force, justice provides legitimacy to the State imperium. It is improbable that in this early stage, all expressions of the social rule of law are present. The defense of social rights or participatory democracy, for exam- ple, requires a degree of institutional devel- opment that it is not possible to achieve in those initial moments. However, nothing impedes justice from accompanying this first state intervention. This is not only possible but also limits the use of force and submits the coercive power of the State to the consti- tution and the law. Justice has strong links to the two sides of the tension that we have been analyzing – efficacy and ‘lega-timacy.’ On the one hand, it moderates the force of efficacy by sub- mitting the State’s need to impose itself on enemies to legal requirements. On the other hand, by avoiding the violation of human rights through the use of force, justice has a legitimizing effect on state action. This effect comes not only from the legality imposed by justice, but also from the democratic char- acter of judges and from the fact that they are defenders of the constitution and of law, which are essentially democratic normative parameters. In addition, the judge not only provides legitimacy to the state-building process, but also offers efficacy by contributing to the overcoming of social conflicts. When a con- flict must be mitigated, state intervention should target the pacification of social rela- tionships. In that sense, a justice system that manages to resolve daily conflicts (like neigh- borly issues, or property claims, etc.) also helps to construct the social fabric necessary for the State to operate normally. In a post- conflict phase, one of the first steps should be to establish successful conflict resolution mechanisms. To conclude, we would like to note (albeit tentatively, as this topic requires greater research and reflection) that local justice in the post-conflict phase needs at least four conditions to achieve its proposed objectives. First, justice-related public policy should adopt a regional focus. Colombia is a socially, culturally, and geographically complex coun- try, which requires a similarly area-specific approach to policy. Justice-related public policy should take local justice demands into account, as well as institutional capac- ity, cultural traditions, the legacy of con- flict, and geographic space. Regional studies must be conducted to identify these justice García-Villegas and Espinosa: The Geography of Justice Art. 41, page 17 of 21 demands (frequent conflicts, motivation to adopt different models, etc.) and, depending on these needs and contextual limitations (institutional, cultural, economic, etc.), spe- cific policy should be adopted in response to the demand. The ‘one size fits all’ approach should be replaced by a focus on multiple sizes and models that integrate Colombia’s regional diversity. Path E is therefore not an immobile path. By combining efficacy with ‘lega-timacy,’ the path can in some cases be closer to the axis of efficacy while in others be closer to that of ‘lega-timacy.’ Second, a regional focus on justice requires modifications to the center of jus- tice administration – the central state – in Bogota. Colombian justice is too inbred, and lacks technical competency and account- ability. The Judicial Council should be more plural, open, and managerial in order to be more democratic, accountable, and thereby more legitimate in the eyes of the citizenry. In addition, the evaluation and design of pol- icy should have its technical foundations in quantitative and qualitative data. Third, the abilities of judges who work in peripheral areas must be strengthened. Justice administration has traditionally sent judges with the least knowledge and expe- rience to the peripheral areas of the coun- try, particularly in conflict-ridden areas. However, the opposite should occur, as it is precisely those locations that need the most able judges who can contend with difficult problems. In addition to the creation of new offices and positions, a new incentive system must be established to stimulate qualified people to work in these regions. In addition, the justice system should employ managers, psychologists, sociologists, social workers, and others who are essential in identifying and addressing conflicts in an efficient and effective way. Fourthly, the term ‘justice system’ should be understood broadly. This is a corollary of the points above. The system’s institutional capacity must be strengthened (conditions 2 and 3) but with a regional focus (condition 1). This implies that it is possible to conceive of local justice institutions that are not exactly the same as those that operate in the capi- tal of the country. The debate between for- mal and informal justice could thereby be overcome by a harmonious collaboration between the two. The justice system should allow for justice standards and informal local procedures (giving equal responsibility to local leaders or conciliators) that are both democratic and efficient, to continue operat- ing and resolving conflicts. In these cases, the task will consist of coordinating standards and procedures with other state entities.20 We believe that a justice system that adopts these four principles can usefully serve as a hinge between two objectives that can be contradictory in conflict contexts: building peace and building the State. The challenge consists in creating innovative policies that brings the four principles together. We believe this to be possible only when a constructivist vision of the problem is adopted, and when there exists a fair medium between favoring all contexts and realities (and saying that the law should adapt to reality) and imposing an ideal vision of justice without reservations. Competing Interests The author declares that they have no com- peting interests. Funding Statement Part of this research was funded by The Kingdom of the Netherlands. Notes 1 Arendt had v ictims of totalitarian states in mind (1982). However, the vulner- ability that characterizes the absence of the right to have rights also occurs when there is no institutional presence or when institutions are captured by ille- gal actors. Dignity and other rights are at risk when the State is too strong or too weak – when it acquires totalitarian traits or when it loses its capacity to uphold rights. García-Villegas and Espinosa: The Geography of Justice Art. 41, page 18 of 21 2 To control for differences in population and extension of territory, we calcu- lated an indicator of presence by mak- ing the municipalities equal, assuming that all have 100,000 inhabitants and are 100km.2 We also focused on low- hierarchy judges who should be present in the entire territory no matter the size of the municipality. 3 We built categories based on the average, and on distances with respect to the aver- age in standard deviation units. 4 It is important to take into account the variable of institutional design. The mag- istrate election system favors the forma- tion of ‘roscas’ or chains of sycophantism in the judicial branch, in addition to a lack of accountability. Tribunal magis- trates are elected by magistrates in the high courts based on lists compiled by the Administrative Court of the Superior Council (whose members are elected, in turn, by the high courts). This ‘rosco- grama’ or sycophantic network is repro- duced at the local level due in part to the provisional nature of some offices. Given that tribunal magistrates directly name provisional judges, there is a higher risk of reproduction of the network in areas with high rates of provisionality. 5 We understand ‘provisional’ to be any judicial office that – for a variety of reasons – is not occupied by a repre- sentative assigned to the post by virtue of the judicial career track. We do not include decongestion offices because by definition, they tend to be occupied by provisional representatives and do not exist in all parts of the country. 6 If the number of decongestion offices is included, the statistic is even more alarm- ing, because the percentage of provi- sional justice posts at the national level increases to 39 per cent. 7 The first stage in this research consisted of compiling all statistical information available, and conducting the first inves- tigation of how different entities in the judicial branch collect and systematize information. Unfortunately, at the end of this first stage, we concluded that we could not use information from the Superior Judicial Council about entries and exits for different types of processes (admin- istrative, ordinary, criminal, disciplinary) because the data collection methods were not very trustworthy. We therefore chose to use information from the SPOA, the Attorney General’s Office’s information system which, although it has some weak- nesses, is the least problematic of all. 8 The formula we used was as follows: ( )i i i i Total sentences Total entries Total sentences Total entries - - . This equation provides a cluster of val- ues on a scale of −1 to 1 as results, in which −1 represents the municipalities where there was not even one sentence passed for all of the cases entered. 1 rep- resents the municipalities in which there were sentences for all of the entries, and 0 represents municipalities in which sen- tences were made for half of the entries. For more information about the con- struction of the indicator, see the work of Leopoldo Fergusson, Juan Fernando Vargas, and Mauricio Vela, from which we took the idea about formulation (Fergusson, Vargas & Vela 2013). 9 This allows us to control the fact that the criminal accusatory system has become valid gradually over the territory. 10 It is important to note that the categories we used to group the municipalities were constructed based on the results that the municipalities had in the indicator, not on the maximum results possible. In no municipality of Colombia were more than 40 per cent of entered cases sen- tenced between 2005 and 2011. 11 The formula we used was the following: ( ) ( ) 0.6 100,000 0.4 i i i i i i i Number of judges Total population i Total sentences Total entries Total sentences LJI Total entries Extension æ ö- - ÷ç ÷= ç ÷ç ÷çè ø æ ö´ ÷ç ÷ç ÷+ ç ÷ç ÷ç ÷÷çè ø García-Villegas and Espinosa: The Geography of Justice Art. 41, page 19 of 21 We normalized and redefined the pres- ence indicator on a scale from 0 to 100. The corrected efficacy indicator, which previously went from −1 to 1, was also recoded on a scale from 0 to 100. 12 This is of course due to the way we con- structed the indicator, which groups municipalities according to how different they are from the average. 13 The variables of coca crops and forced displacement show the municipal aver- age of each variable between 2005 and 2011, with the goal of making a homo- geneous comparison with the justice indicator. The source on coca crops is the registry conducted annually by the UNODC through the Integral Illegal Crop Monitoring System. The displacement data come from the journal of the Vice President’s Office and correspond to the number of displacements according to the municipality from which the person was expulsed. The presence of illegal groups comes from a database created by the CERAC (Restrepo, Spagat & Vargas 2006). The period of the variable is 2000 to 2012. For the presence of paramilitar- ies and BACRIM, two different periods were analyzed: for the paramilitaries, from 2000 to 2006 and for the BACRIM, from 2007 to 2012. The illegal mining data are the product of research by the People’s Ombudsman’s Office three years ago (2010). The data on indigenous and Afro-Colombian people come from the 2005 census created by the DANE. 14 To calculate the quantity of illegal crops in a municipality, values were taken from 2005 to 2011 and the average was found. Density corresponds to the relationship between cultivated hectares and coca per kilometer squared. A crop density value of 12 hectares per square kilometer means that in this area 12 per cent of each kilo- meter is used for coca cultivation. 15 The rate of displacement per 100,000 inhabitants in the period 2005–2011 was taken as a reference. 16 Balakrishnan Rajagopal (2008) has stron- gly criticized the discourse on ‘rule of law’ as a strategy for the construction of insti- tutions in the post-conflict phase. In gen- eral terms, he sustains that the discourse on ‘rule of law’ is seen as a technical, judicial, apolitical discourse that ends up being useful to escape the political dis- cussion. When people appeal to this dis- course, they hide contradictions between different public policy agendas, such as development and human rights agendas, or security and human rights, which can- not be resolved simply by invoking the ‘rule of law’ as a mantra. The discourse on the ‘rule of law’ hides commitments that should be made between these agendas in order to reach these valid goals. We believe that this criticism is true but does not necessarily imply that the discourse should be abandoned. Rather, it should be conceptualized and examined for specific tensions that could be found in its interior. We accept Rajagopal’s invi- tation to break down what we under- stand by ‘rule of law’ and accept – even if not completely – the tensions between efficacy, legitimacy, and legality in the Colombian case. 17 It is also worth noting that, analytically, legality and legitimacy are two different things. See Bobbio (2005) and Ost and van de Kerchove (2001). 18 Some Scandinavian countries are close to this case (Munck 2009). 19 It is possible to have an effective state (here we adopt a minimal, almost Hobbesian, concept of efficacy and as a result, we are not referring to administra- tive or governmental efficacy) that is nei- ther legitimate nor legal. There can also be a legal state with deficiencies in terms of legitimacy, but it is not possible to find a situation in which democracy and legality exist without an effective state. There can of course exist a lack of all ele- ments, as in areas dominated by armed actors who challenge the State, where García-Villegas and Espinosa: The Geography of Justice Art. 41, page 20 of 21 there is no democratization or protec- tion of rights. Someone could state that armed actors, when they impose order and security, are guaranteeing rights. However, we dismiss this possibility and sustain that law cannot be guaranteed by illegal means. 20 A recent report indicates that the FARC have begun to cede their guerrilla justice administration system to the community action boards (JAC by its Spanish acro- nym) of the areas where they have influ- ence (2015). It would be an error for the State to impose upon the JAC justice sys- tem without first evaluating its strengths and weaknesses, and considering ways to coordinate it with more formal justice procedures. References Acemoglu, D and Robinson, J 2012 Why Nations Fail. The Origins of Power, Prosper- ity and Poverty. New York: Crown Business. Bobbio, N 2005 Teoría general de la política. Madrid: Trotta. Fergusson, L, Vargas, J F and Vela, M 2013 Sunlight Disinfects? Free Media in Weak Democracies. Bogotá: Uniandes. Fukuyama, F 2004 State-building: Govern- ance and World Order in the 21st Century. Ithaca, NY: Cornell University Press. Garay, L J, De León, I and Salcedo, E 2010 Captura y Reconfiguración Cooptada del Estado en Guatemala, México y Colombia. Análisis conceptual de las memorias de la Primera Discusión Internacional sobre Captura y Reconfiguración Cooptada del Estado. Bogotá: Grupo Método. García-Villegas, M 2008 Jueces sin Estado. Bogotá: Siglo del Hombre – Dejusticia. García-Villegas, M 2014 La eficacia sim- bólica del derecho. Sociología política del campo jurídico en América Latina. Bogotá: Random House. García Villegas, M and Espinosa Restrepo, J R 2012 Incorporación institucional de la periferia en Colombia: descentralización, regalías y el Plan Nacional de Consoli- dación. Bogotá: Dejusticia. García Villegas, M and Revelo Rebolledo, J 2010 Estado alterado. Clientelismo, mafias y debilidad institucional en Colombia. Bogotá: Dejusticia. García Villegas, M and Uprimny, R 1999 El nudo gordiano de la justicia y de la guerra en Colombia. In Camacho, A & Buitrago, F L (Eds.), Armar la paz es desarmar la guerra. Bogota: IEPRI, CEREC, FESCOL, pp. 33–70. González, F, Bolívar, I and Vásquez, T 2003 Violencia política en Colombia. De la nación fragmentada a la construcción del Estado. Bogotá: CINEP. Gutiérrez, F 1996 Dilemas y paradojas de la transición participativa. Análisis Político, 29: 43–64. Gutiérrez, F 2010 Instituciones y territorio: la descentralización en Colombia. In 25 años de la descentralización en Colom- bia. Bogotá: Konrad Adenauer Stiftung, pp. 11–54. Hellman, J, Jones, G and Kaufmann, D 2000 Seize the State, Seize the Day: State Capture, Corruption and Influ- ence in Transition by Joel Hellman, Geraint Jones, Daniel Kaufmann. Wash- ington D.C.: The World Bank. Available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=240555 DOI: http:// dx.doi.org/10.1596/1813-9450-2444 Jensen, E G 2008 Justice and the Rule of Law. In: Call, C T & Wyeth, V (Eds.) Build- ing States to Build Peace. Boulder, CO: Lynne Rienner Publishers, pp. 119–142. López, C (ed.) 2010 Y refundaron la patria . . . De cómo mafiosos y políticos reconfiguraron el Estado colombiano. Bogotá: Corporación Nuevo Arcoiris, Congreso Visible, Dejusticia, Grupo Método y MOE. Migdal, J S 2011 El Estado en la sociedad. Una nueva definición del Estado. (Para superar el estrecho mundo del rigor). In Estados Fuertes, Estados débiles. México: FCE, pp. 15–66 Munck, G 2009 Mesuring Democracy. Bal- timore: The Johns Hopkins University Press. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=240555 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=240555 http://dx.doi.org/10.1596/1813-9450-2444 http://dx.doi.org/10.1596/1813-9450-2444 García-Villegas and Espinosa: The Geography of Justice Art. 41, page 21 of 21 Ost, F and Van de Kerchove, M 2001 Ele- mentos para una teoría crítica del derecho. Bogotá: Universidad Nacional-Facultad de Derecho, Ciencias Politicas y Sociales. Ottaway, M 2002 Nation Building. Foreign Policy, 132: 16–24. DOI: http://dx.doi. org/10.2307/3183443 Palou, J C 2011 Balance de la Política de Consolidación a partir del estudio de 4 regiones intervenidas. Presented at the La Política de Consolidación Territorial del Estado Colombiano: evolución, desafíos, obstáculos y potencialidades, Bogotá. Portes, A and Smith, L 2010 Institutions and National Development in Latin America: A comparative Study. Socio- Economic Review, 1: 1–37. DOI: http:// dx.doi.org/10.1093/ser/mwq018 Rajagopal, B 2008 Invoking the Rule of Law in Post-Conflict Rebuilding: A Criti- cal Examination. William & Mary Law Review, 49: 1347–1376. Restrepo, J, Spagat, M and Vargas, J F 2006 The Severity of the Colombian Conflict: Cross-Country Datasets versus New Micro-Data. Journal of Peace Research, 43(1): 99–115. DOI: http://dx.doi.org/ 10.1177/0022343306059924 Rodríguez, C and Portes, A 2012 Las institu- ciones en Colombia; un análisis soci- ológico. Bogotá: Ediciones Uniandes. Romero, M 2003 Paramilitares y autodefen- sas 1982–2003. Bogotá: IEPRI. Romero, M (ed.). 2007 La ruta de la expansión paramilitar y los acuerdos políticos. Bogotá: Cerec – Corporación Nuevo Arco Iris. Rubin, B R 2008 The Politics of Security in Postconflict Statebuilding. In: Call, C T & Wyeth, V (Eds.), Building States to Build Peace. Boulder, Co: Lynne Rienner Pub- lishers, pp. 25–48. Sánchez, F and Chacón, M 2006 Conflicto, Estado y descentralización: del progreso social a la disputa armada por el control local, 1974–2002. In Gutiérrez, F & Sánchez, G (Eds.), Nuestra guerra sin nombre. Trans- formaciones del conflicto en Colombia. Bogotá: Norma – IEPRI, pp. 347–404. How to cite this article: García-Villegas, M and Espinosa, J R 2015 The Geography of Justice: Assessing Local Justice in Colombia’s Post-Conflict Phase. Stability: International Journal of Security & Development, 4(1): 41, pp. 1–21, DOI: http://dx.doi.org/10.5334/sta.gc Published: 24 July 2015 Copyright: © 2015 The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 3.0 Unported License (CC-BY 3.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/3.0/. OPEN ACCESS Stability: International Journal of Security & Development is a peer-reviewed open access journal published by Ubiquity Press. http://dx.doi.org/10.2307/3183443 http://dx.doi.org/10.2307/3183443 http://dx.doi.org/10.1093/ser/mwq018 http://dx.doi.org/10.1093/ser/mwq018 http://dx.doi.org/10.1177/0022343306059924 http://dx.doi.org/10.1177/0022343306059924 http://dx.doi.org/10.5334/sta.gc http://creativecommons.org/licenses/by/3.0/ _GoBack 
work_chqejjomczc4thfbsghnp4dh4a	----	Egalitarian Justice and Expected Value Knight, C. (2013) Egalitarian justice and expected value. Ethical Theory and Moral Practice. ISSN 1386-2820 Copyright © 2013 Springer Science+Business Media Dordrecht A copy can be downloaded for personal non-commercial research or study, without prior permission or charge The content must not be changed in any way or reproduced in any format or medium without the formal permission of the copyright holder(s) When referring to this work, full bibliographic details must be given http://eprints.gla.ac.uk/76960/ Deposited on: 25 March 2013 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk http://eprints.gla.ac.uk/76960/ http://eprints.gla.ac.uk/ http://eprints.gla.ac.uk/ 1 Egalitarian Justice and Expected Value* Carl Knight, University of Glasgow and University of Johannesburg I. Introduction The traditional form of egalitarianism is outcome egalitarianism, which proposes to equalize individuals’ advantage levels. Writers such as Ronald Dworkin (1981), G. A. Cohen (1989), and Richard Arneson (1989) rejected such views, pointing out that they would require that advantages are equalized even if some individuals have gratuitously lowered their advantage levels below the average. They instead proposed brute-luck egalitarianism, which is often described as having two parts: first, like outcome egalitarianism, it says that the differential distributive effects of brute luck, which defines the outcome of risks which are not deliberately taken, are unjust; and second, unlike outcome egalitarianism, it says that the differential distributive effects of option luck, which defines the outcome of deliberate gambles, are not unjust. This description of brute-luck egalitarianism is something of an oversimplification. It also includes a third part: it says that, where responsible choice is unmediated by luck, its results are not unjust. This third part is related to the second (option luck) part, as both involve choice, but is importantly different from it. This difference comes out where one contrasts a losing gamble with a predictably destructive act. If I lose my house in a gamble, I have been a victim of bad option luck, and brute- * This article is forthcoming (as of February 2013) in Ethical Theory and Moral Practice. The original publication is available at www.springerlink.com. 2 luck egalitarianism as it is usually understood supposes I am due no compensation. But compensation is similarly unforthcoming should I destroy my house in such a way that its loss is not mediated by luck. The distinction between results which flow directly from choices, and those which arise from a combination of choice and luck, is unimportant to both brute-luck egalitarians and outcome egalitarians, but for opposite reasons. For the brute-luck egalitarian, inequalities which follow directly from choice and those which arise as a matter of option luck are similarly just; for the outcome egalitarian, such inequalities are similarly unjust. But a third egalitarian position takes this distinction as crucial. All-luck egalitarianism identifies brute-luck inequalities as unjust, as do all forms of egalitarianism.1 Its innovation is to treat distributions which follow directly from choice as not unjust, while treating distributions which follow from differential option luck as unjust. 1 The term ‘all-luck egalitarianism’ is from Shlomi Segall (2010, ch. 3). Richard Arneson (2007; 1999, 490-91) has endorsed one form of all-luck egalitarianism and criticized another. John Roemer (1996, 276- 78; 1998, ch. 8) also appears to endorse a version of the view, apparently assuming, for instance, that an equal opportunity principle will pool risks among smokers. However, Roemer’s settled position leaves it up to society to decide which factors should be treated as potentially compensation-entitling, and hence he is best interpreted as agnostic on option luck. Larry Temkin (2011) and Alexander Cappelen and Ole Frithjof Norheim (2005) defend all-luck egalitarianism, though the latter do so without distinguishing it from the more common brute-luck egalitarianism. Peter Vallentyne (2002, 539-40) refers to the view as ‘equality of luck’. Interestingly, Kasper Lippert-Rasmussen (2005, 259) mentions a responsibility-insensitive form of all-luck egalitarianism. The argument of the present article leaves it open whether corrections for the results of option luck are due regardless of individuals’ responsibility for them, or because individuals cannot be held responsible for them. 3 To see the intuitive appeal of the view, consider again the difference between losing a house as a matter of option luck and losing it as the result of a predictably destructive act. Option luck is not present only in classic, casino-style gambles. Any kind of investment that might go up or go down is exposed to option luck and is thus a gamble in the relevant, extended sense. Many would feel compensation more appropriate for someone who lost their house as the result of an investment that was impaired by deteriorating market conditions, than for someone who lost their house by covering it in flammable liquid and throwing a lit match into it.2 All-luck egalitarianism responds to that difference of intuition. The main internal problem for all-luck egalitarianism is how to respond to cases of option luck. Where distributions have resulted from brute luck or directly follow from choices, all-luck egalitarianism has a simple solution – the brute luck is eliminated entirely, and the direct results of choice are allowed to stand. But where there is a responsible choice but with results that have been mediated by option luck, no simple solution of this sort is available. To undo the combined results of the choice and attendant luck altogether would fail to recognize the important role of choice, carrying the position too close to outcome egalitarianism. But equally, to allow the combined results of choice 2 It has been suggested to me that this case implicitly appeals to differences in intentionality between the house burner and the investor. But even where intentionality is constant, bad option luck appears to call for correction in a way that more straightforward results of choice do not. For instance, there seems a stronger case for (state) assistance to someone who has put their money in a savings account at a long-established bank that has unexpectedly collapsed, than there is for assistance to someone who has the same profit- making intention, but who has followed a strategy that is bound to fail (e.g. buying many lottery tickets and ‘reinvesting’ all winnings in more lottery tickets). 4 and luck to stand gives too much influence to luck, and indeed makes the position indistinguishable from brute-luck egalitarianism. This problem is pressing because, in practice, there are no or virtually no cases of acts wholly unmediated by luck.3 Even if I cover my house in flammable liquid, light a match, and throw it in, there is still something short of a 100 per cent chance of burning the house down: there is a small chance of the match extinguishing mid air, for instance. What drives all-luck egalitarianism is the thought that there is nevertheless an important difference between this case, and that in which I unluckily lose my house due to market conditions. The house burning case, though not a pure case of unmediated choice, is very close to one - perhaps there was a 99 per cent chance that my actions would result in the loss of the house. By contrast, making the investment might have only a one per cent chance of resulting in the loss of the house, in which case luck is very prominent in the outcome. What all-luck egalitarianism must do, then, is provide some account that puts these cases near opposite ends of a spectrum which runs from pure choice (implying zero compensation) to pure chance (implying full compensation). To capture this importantly scalar quality of all-luck egalitarianism, we can clarify that it treats distributions which follow from differential option luck as unjust, to the extent that they follow from differential option luck. But how can we measure the extent to which distributions follow from differential option luck? The most promising solution is to say that a distribution follows from differential option luck insofar as it is characterized by the unexpectedly good or bad outcomes of choice. Insofar as we are all-luck egalitarians, our aim is then to provide individuals with 3 I thank an anonymous referee for this point. 5 the expected value of their choices (Temkin 2011, 65). This accommodates the intuitive difference between house burning and investing on account of the fact that the former has a much lower expected value. Though this solution has appeal, it faces several questions which have, to date, not received much attention. First, should risks be pooled among gamblers alone, so only winning gamblers compensate losing gamblers with the expected value of their gambles, or should the entire community pool risks? Second, which kind of probabilities (for instance, objective or subjective) should be used to calculate expected values and thus fair shares? Finally, what should be done where resources are so scarce that gamblers cannot be provided with the expected value of their gambles? In this article I present a version of all-luck egalitarianism that provides a plausible account of these issues. Cast in this light, all-luck egalitarianism provides a valuable perspective on egalitarian justice. As this last claim suggests, an important limitation of the argument is that it focuses only on egalitarian justice, which is concerned with distributing benefits and burdens in such a way that equality is achieved in some substantive sense.4 Egalitarian justice contrasts with any parts of morality which are not matters of justice (for example, supererogation), any parts of justice which are not matters of distributive justice (for example, prohibition of physical attack), and any parts of distributive justice which are non-egalitarian (for example, promotion of overall advantage). My argument is then narrow in the sense that I claim only to show what is required in the name of equality. For that reason, I will simply disregard the common objection to all-luck egalitarianism 4 This was also the focus of the seminal presentations of brute-luck egalitarianism by Arneson (1989, 77) and Cohen (1989, 907, 909-11). For a specification of substantive equality see Knight 2009a. 6 that undoing the effects of option-luck inequalities would be deleterious of overall advantage levels (Segall 2010, 52-3; Barry 2008, 138 n. 7; Dworkin 2011, 358; Anderson 2008, 247-48). If there is more to distributive justice than equality, it may sometimes be all-things-considered just to allow option-luck inequalities to stand for the sake of increases in overall advantage, but that consideration has no place in an argument about the nature of equality. And my argument is narrower still, in that I focus on trying to work out the most plausible form of all-luck egalitarianism. While I suggest some attractions of this view, I do not engage in the sustained criticism of rival egalitarian views that would be required to establish all-luck egalitarianism as the all-things- considered most plausible version of egalitarianism. In what follows, the three aforementioned questions for all-luck egalitarianism are considered in turn. Section II argues that winning gamblers and non-gamblers alike should provide losing gamblers with the expected value of their gambles, and that more generally, risks should be pooled throughout the community. Section III argues that the appropriate sort of probabilities for assessing expected value are neither objective nor subjective, but rather the probabilities gamblers would be warranted to expect (except where they non-culpably lack the capacity to expect what is warranted). Section IV argues that, where there are insufficient societal resources to provide individuals with expected values, each individual’s entitlement is reduced by the same percentage as the overall shortfall. I then, in Section V, consider the objection that this form of all-luck egalitarianism allows risk-takers to impose externalities on non-risk-takers, and suggest that this objection actually points to a strength of the view. Section VI concludes. 7 II. Pooling All-luck egalitarianism is sometimes presented as requiring that ‘individuals who make the same choices should also have the same outcomes’ (Cappelen and Norheim 2005, 478). On this view, risks are pooled among those who make identical choices. While this serves to distinguish the view from brute-luck egalitarianism, it is evidently insufficiently determinate as a full statement of the view. Some fuller account of who indemnifies who is required. Writers who propose compensation for bad option luck without falling back on outcome egalitarianism have generally focused on expected value. Kasper Lippert- Rasmussen (2001) has claimed that, where gamblers would prefer the expected value of a gamble to facing the gamble itself, and thus are in his terms ‘quasi-gamblers’, there is a stronger case for redistribution from winning to losing gamblers. While taxation as a means of ‘ensuring that winners and losers alike end up with expected values of their gambles’ would disadvantage ‘gamblers proper’ (those who prefer the gamble over its expected value), similar taxation would improve the ex ante prospects of quasi-gamblers (Lippert-Rasmussen 2001, 555). A similar weight on the distinction between quasi- gambles and gambles proper is suggested by Marc Fleurbaey (2001), who explicitly suggests that quasi-gamblers are due the expected values of their gambles.5 And Nicholas 5 In later work Fleurbaey (2011, 86; see also Fleurbaey 2008) favours an ‘egalitarian-equivalent’ criterion, which, ‘[f]or any individual, ask[s] what level of external treatment (e.g. transfers) would maintain her current level of outcome if she had a reference (say, average) level of circumstance characteristics. Then give priority, in the sense of the maximin criterion, to those individuals with the least favourable level of external treatment in this counterfactual computation’. Whether this view compensates for bad quasi- 8 Barry (2008, 145-46) writes that, ‘to apply luck egalitarianism, we must calculate the impact of luck on each risk taker and act to ensure that the benefits and burdens associated with this luck are shared equally amongst them all’, subject to the condition ‘that redistribution should only occur when risk takers would prefer to share out the wins and losses associated with risk taking (via this redistributive scheme), than to let luck run its course’. All-luck egalitarianism as it is standardly understood pools risks among gamblers in this way, but drops Barry’s (and, perhaps implicitly, Lippert-Rasmussen’s and Fleurbaey’s) condition that the pooling occurs only among quasi-gamblers. In other words, all-luck egalitarianism extends the treatment Barry proposes for quasi-gambles to all forms of option luck – quasi-gambles and gambles proper alike. It seeks to give losing gamblers the expected values of their gambles, at the expense of winning gamblers. For instance, Shlomi Segall (2010, 45-6) suggests that all-luck egalitarianism ‘requires pooling the costs of medical treatment among those who make similar gambles with their health’. The view that risks should be pooled among gamblers in some way faces the grouping problem – that of deciding which groups of gamblers should share each other’s risks. The assumption seems to be that similar gambles should be pooled. But there is no apparent non-arbitrary way of grouping gamblers as sufficiently similar. As a referee commented, ‘[s]hould the skiers be bundled together with the mountaineers and the divers, or not? The farmers with the biotech startups?’. gambles or bad option luck generally will depend on whether they are classified as responsibility characteristics or circumstance characteristics. 9 Even if this problem could be overcome, it is not clear that pooling risks among gamblers alone is justified. It seems natural in the two categories of risk-taking on which the literature has focused to date.6 In the first category, the payoffs of each risk-taker are independent of those of other risk-takers. For instance, whether one smoker develops cancer is (usually) unaffected by whether other smokers develop cancer. In the second category, the payoffs of each risk taker are inversely correlated with those of other risk takers. For instance, casino gamblers can often only win to the extent that other casino gamblers lose. What these two categories of risk taking have in common is that the average payoff corresponds to the expected payoff (in the case of independent risks, this result is obtained for large numbers, as where we consider every smoker in a country). It follows that, in these cases, risk takers as a group are not unlucky. Thus, it seems obvious that if losing gamblers are due compensation, it should be at the expense of winning gamblers, as winning gamblers are, in these cases, necessarily lucky - they are the lucky members of a not unlucky group. Pooling among gamblers alone seems less appealing, however, when we consider a neglected third category of risk taking. Here the payoffs of each risk taker are positively correlated with those of other risk takers. Sometimes similar gambles, or even gambles in general, may all turn out very badly (or very well). Bookmakers generally benefit, and punters generally lose out, when football (soccer) matches are drawn. In the wider economy adverse weather conditions may result in crop failure, or currency movements may leave exporters without a market for their products. In such circumstances, compensating the losers of a losing group at the expense of the ‘winners’ of a losing 6 I owe this point to an anonymous referee. 10 group – transferring assets from the least unlucky farmers to the most unlucky farmers, say – is not enough to satisfy egalitarian justice. All members of the group have been disadvantaged relative to another group, that of non-risk-takers. Now it might be argued that this disadvantaging is through the fault or choice of risk-takers. After all, they have chosen to expose themselves to risk. But it does not seem to me that this is a coherent answer for the all-luck egalitarian. After all, they are, unlike brute-luck egalitarians, committed to saying that bad option luck is not a fair basis on which persons might be disadvantaged. If a person cannot fairly be disadvantaged relative to another because one has bad option luck and the other has good option luck, it is hard to see how a person might fairly be disadvantaged relative to another because one has bad option luck and the other has no option luck. Indeed, as Lippert-Rasmussen (2001, 562) notes, egalitarians ‘want to be able to tell whether an inequality between two persons is a matter of differential option luck’. If risks are pooled among gamblers alone, inequalities between gamblers and non-gamblers may well be due to option luck, which all-luck egalitarians should find objectionable. Given the possibility of positively-correlated risks, it seems plausible that compensation for losing gamblers should in principle be available not only from winning gamblers, but from non-gamblers as well. This also solves the grouping problem as it obviates the need to identify some smaller part of the general population as appropriately subject to pooling. I therefore construe all-luck egalitarianism as requiring pooling of risk not just amongst those subject to option luck, and insofar as they are subject to option luck, as would be the case if I simply extended Barry’s treatment of quasi-gambles to all option luck. Rather, risk is to be pooled amongst the community as a whole. Assuming 11 background equality, each individual is, provisionally, due the expected outcome of their choices, be they choices to expose oneself to option luck or choices to avoid option luck.7 Of course, as with individual gamblers, gamblers as a group will only be compensated insofar as they have actually suffered bad luck: if gamblers made choices with a low expected value there will typically be no unfairness in them being worse off than non- gamblers. Furthermore, when risk takers as a whole have good luck, they are required to transfer assets to non-risk takers. As the proposed view attempts to deliver expected values to individuals, it will try to minimize access to choices which create exposure to option luck, which breaks the link between individual holdings and expected values. On this construal, egalitarianism will recommend that gambling and similar practices be directly prohibited and/or have their option luck effects undone ex post. III. Probabilities The next task is to clarify the suggestion that all-luck egalitarianism responds to expected value.8 The expected value of a gamble is found by multiplying the (prudential or moral) value of each possible outcome by the probability of it occurring, and summing the results. The difficult question is which probabilities all-luck egalitarianism should use when assessing the expected value of a gamble. 7 I say ‘provisionally’ as this formula must be adjusted for cases of incapacity and scarcity; see below. 8 For discussion of the difficulty of combining accounts of expected value with non-compensation for option luck see Lippert-Rasmussen 2001, 566-70. 12 Basing judgments on subjective probabilities – the odds as actually assessed by the gambler – would be manifestly unfair, amounting as it would to rewarding over- confidence and penalizing under-confidence, characteristics which are not typically chosen by their bearers. But it would equally be unfair to base distributions on objective probabilities, as individuals might very well be ignorant of the odds through no fault or choice of their own.9 This is especially so considering that option luck encompasses not just gambles-proper with expected outcomes that are easily obtainable by mathematical means but also complicated quasi-gambles such as career choices. Essentially the same objection applies to a third possibility suggested by Lippert-Rasmussen (2001, 566) – that of responding to ideal subjective probabilities, which are what agents’ subjective probabilities would be under conditions of increased rationality and/or information. Individuals no more have access to ideal subjective probabilities than they do objective probabilities, and this may, again, be through no fault or choice of their own. We can, of course, avoid the problems with expected value by solely engaging in ex ante activities (in particular preventing gambles).10 But such a strategy would not minimize the influence of luck on distributions as some gambles would occur both prior to and under any prohibitionist regime. Some ex post activity (redistribution) will be required, and this needs to give a role to probabilities. My suggestion here is that all-luck egalitarianism refers to warranted probabilities adjusted for non-culpable incapacity. The core idea is that individuals 9 This unfairness may arise even where individuals are similarly ignorant; under such conditions they may understandably make different choices arbitrarily (see Vallentyne 2002, 536). 10 This point was made by Shlomi Segall (private communication). 13 should receive the outcomes they are warranted in expecting from the choices they make.11 An assessment of probabilities is warranted if, overall, the evidence available to the individual points towards that assessment.12 This is not to say that the individual actually does make that assessment of probabilities, nor need it be the case that that assessment of probabilities is factually correct. Warranted probabilities thus differ from both subjective probabilities and objective probabilities, while having some of the intuitive appeal of both. By making our egalitarianism respond to warranted probabilities we can take into account the epistemic limitations that the agent faces, as subjective probabilities promise, while insulating justice from epistemically indefensible beliefs, as objective probabilities promise.13 Of the previously mentioned probabilities, ideal subjective probabilities are the closest to warranted probabilities, but they differ in that warranted probabilities disregard any information not actually available to the agent, as seems fitting given that the agent may not be culpable for the missing information. Nevertheless, responding to unadulterated warranted probabilities may be troubling to the luck egalitarian. Some individuals may be incapable of assessing evidence appropriately. Some such individuals’ incapacities may have arisen from their choices, and they may have been warranted in expecting the incapacity and (on this prior occasion) capable of recognizing the warrant, in which case any resulting disadvantage 11 In some cases, two or more expectations may be (equally) warranted. In such cases it seems acceptable to use the mean expectation for distributive purposes. For simplicity I set aside cases of multiple warrant. 12 This formulation, and much else in this paragraph, draws on Robertson 2011. 13 The exact specification of when belief in a probability is warranted is not a task of a theory of justice. Just as luck egalitarians typically leave responsibility as a problem to be solved by metaphysicians, so I believe they should leave warrant as a problem to be solved by epistemologists. 14 appears unproblematic from a luck egalitarian perspective. But others may not have brought about their incapacity. For instance, they may have received a low standard of schooling, or they may have a lower than average natural intelligence (though not so low that they can be considered incapable of choice). It seems clear that the luck egalitarian can not allow individuals to be (dis)advantaged on account of brute luck differences in how they assess evidence.14 The all-luck egalitarian will, on my interpretation, have similar concerns about incapacities which are the upshot of bad option luck. For these reasons the core idea should be constrained thus: individuals receive the warranted probabilities of their choices except insofar as individuals’ inabilities to recognize which beliefs about probabilities are warranted have arisen through no fault or choice of their own. An inability has arisen through no fault or choice of its bearer insofar as it is (1) a matter of brute bad luck for the bearer and/or (2) the upshot of the bearer’s choice that the bearer was either (a) not warranted to expect or (b) warranted to expect but incapable of recognizing the warrant.15 Insofar as individuals are non-culpably 14 For an attempt to defuse the distributive effects of variations in individuals’ initial dispositions see Vallentyne 2008. 15 Hence one type of non-culpable incapacity is non-culpable on account of the fact that its bearer made a choice while non-culpably incapacitated, and that incapacity was non-culpable on account of the fact that its bearer made a choice while non-culpably incapacitated, and so on. This is not, of course, an infinite regress: each step must reflect an actual capacity-affecting choice a person has made while non-culpably incapacitated. 15 incapacitated their ‘choices’ are treated as a matter of luck, and individuals receive what they would have received had they made no choice.16 At one extreme, if an individual’s assessment of the outcome of a gamble is unwarranted, but this epistemic shortfall has come about through no fault or choice of their own, their fair share is unaffected by their choice. This is justified because it would be unfair for them to be disadvantaged (or, indeed, advantaged) through no fault or choice of their own, as they would be if warranted probabilities, which they did not and could not base their decisions on, were used to assess their fair share. At the other extreme, if it is either the case that an individual’s assessment of the outcome of a gamble is warranted, or unwarranted but wholly culpably so, their fair share is that which they were warranted to expect. This is justified because either the warranted probabilities coincide with the gamblers’ assessment, or because they fail to coincide but in such a 16 Peter Vallentyne (2011, 181) suggests the alternative position that, where individuals are not responsible for their false beliefs, ‘the presence of imaginary outcomes can, relative to the value of the foreseen impact, shrink the value for which the agent is responsible’. It is hard to see how these beliefs can have such a role within a responsibility-sensitive view without making some worse off than others through no fault or choice of their own. For instance, two individuals might make identical choices, one believing that it has moderately beneficial results, the other believing that it has only slightly beneficial results. If the choices are actually highly beneficial, Vallentyne’s position suggests that the first individual receives the moderate benefit that she anticipated but the second individual only receives the slight benefit that she anticipated (see Vallentyne 2011, 183-4). That the second individual more significantly underestimated the amount of benefit than did the first cannot be described as the former’s fault or choice, as she is, we assume, not responsible for her false belief. This suggests either that responsibility is not as Vallentyne describes, or that it is as Vallentyne describes, but that egalitarian justice does not always respond to responsibility. The position in the text is consistent with both stances. 16 way that, though the resulting distribution will be based on different probabilities than those used by the gambler, this divergence, and hence any difference of outcome, is the fault of the gambler. Many cases would fall between the extremes, as gamblers’ unwarranted assessments would be attributable to a mixture of causes, only some of which are no fault or choice of theirs. For this reason warranted probabilities would often be used, but in mitigated fashion. Where gamblers arrive at unfavourable outcomes on account of unwarranted assessments which are partially culpable (for example, they did not bother to do some simple sums) and partially non-culpable (for example, they were brought up not to value mathematics), they would receive some level of indemnity short of the full indemnity they would have received had their poor judgment been wholly through no fault or choice of their own. IV. Scarcity The suggestion so far is that, excepting cases of non-culpable incapacity, gamblers are due the warranted expected value of their gambles. This now needs modification to account for an extreme variant of the earlier observation that gambles as a whole might turn out badly. There may simply not be the resources available to deliver the expected value of gambles (or, in cases of non-culpable incapacity, to deliver the outcome expected had no choice been made). Furthermore, this issue of scarcity is not resolved by my proposal that luck is corrected not just among gamblers but among the population as a whole. While it may be the case that the community is a net recipient of good brute luck, it could equally well have net bad brute luck, be brute luck-neutral, or have good brute luck, but not to the same extent as gamblers have bad option luck. In any of these 17 scenarios there will, again, not be the resources to secure the expected value of gambles, and that of non-gambles. So we need some rule to deal with cases where warranted expectations outstrip society’s means. To address this issue we must bear in mind that, from any luck egalitarian perspective, injustice does not issue from individuals being unlucky in an absolute sense – from getting lower total levels of advantage than they would have if fortune did not intervene. Rather, injustice issues from individuals being unlucky in a comparative sense – from getting lower levels of advantage relative to others than they would have if fortune did not intervene. Once this is grasped, handling cases where social resources cannot match gamblers’ expectations becomes much easier, as our goal is then not the impossible one of handing out resources which do not exist, but rather that of adjusting individual advantage levels so that the burden of the overall shortfall is shared fairly. Specifically, I propose that, in cases of scarcity, each individual’s entitlement is reduced by the same percentage as the overall shortfall. Consider a society with two gamblers and one non-gambler, where the gamblers expect, with warrant, 100 units of advantage, but owing to unknown (and unknowable) unfavourable circumstances the winner receives 150 and the loser 20, and the non-gambler is unaffected by luck of any kind and receives 100. The overall amount of advantage in society is 270, which is 30 units, or 10 per cent, less than the expected amount. My proposal is that the fairest result is for each individual to receive 90 units of advantage, so that each individual, including the non-gambler, shares equally in the unexpected gambling shortfall. The gamblers as a group cannot fairly complain about this outcome as, though they have received a level of compensation for their bad luck which does not fully 18 compensate for their loss in absolute terms, their bad luck relative to the non-gambler has been eliminated. The non-gambler cannot fairly complain about this outcome as, though she has been disadvantaged by other people’s gambles, they have, absent compensation, been victims of bad luck relative to her. Had the non-gambler been the victim of bad brute luck, it would be her shortfall that was spread across the community. Without compensation for shortfalls, both gamblers and non-gamblers would be worse off than others, and through no fault or choice of their own. It seems appropriate for surpluses to be pooled in the same fashion as shortfalls, again minimizing unchosen disadvantages. I will now sum up the position outlined above. All-luck egalitarianism is best approximated by a view that undoes the effects of luck not just among gamblers but among the entire community in order to minimize the distributive influence of both option and brute luck. Subject to a proviso, the view gives individuals entitlements to the expected outcomes of their choices which were warranted except insofar as they are non- culpably incapable of recognizing which expectation is warranted, in which case the initial upshot of the ‘choice’ is overturned. The proviso is that, where the community is unable to deliver the expected outcomes of individuals’ choices that were warranted (or equivalent in cases of non-culpable incapacity), or can deliver more than was expected, the societal shortfall or surplus is shared evenly in percentage terms. The form of all-luck egalitarianism described here makes individuals worse off than others only through their faults or choices to make worse decisions in terms of probabilities to which they have access, not through option luck. V. Externalities 19 Is pooling risks between gamblers and non-gamblers, as I have proposed, fair? Daniel Markovits (2008, 287n51; see also Dworkin 1981, 295) claims that ‘enforced risk- pooling would discriminate against those with a taste for risk by making (at least some) gambles practically impossible, thus reducing the range of choice available to risk takers’. But I do not see that it is problematic for the egalitarian to make gambles impossible, given that their primary effect is to create inequalities, and through the medium of luck, at that. There is, however, a more challenging flipside of the above objection. Just as gamblers can complain that whole-population pooling of option luck prevents them from taking risks, so non-gamblers can complain that it forces risks upon them. As an anonymous referee put it, ‘[t]he objection that will be raised against the author’s proposal to share collective luck with non-gamblers is that the gamblers are then imposing an externality over the rest of the population. More precisely, they impose a risk on others who may not want it’. I say this objection is more challenging as wanting to avoid gambles is not obviously in conflict with securing an equal and luck-neutral outcome in the way that wanting to gamble is. I accept that my position implies that gamblers as a group may impose externalities of a sort on the non-gambling group, and that this may seem counterintuitive. But note that these externalities are not typically negative externalities. Rather, the net effect of the externalities on non-gamblers can be expected to be neutral. Where payoffs fall short of expectations, risk-takers do indeed impose negative externalities on non-risk-takers, but where payoffs exceed expectations, the externalities the risk-takers ‘impose’ on non-risk-takers are positive (a transfer of benefits from 20 gamblers to non-gamblers would be forthcoming). Antecedently, there is no reason to assume that negative externalities are more common than positive externalities. This is because, where it is appropriate to respond to expectations, the relevant sort of probabilities are those which are warranted. Thus, even if gamblers tended to be optimistic about their gambles, and so their payoffs failed to match subjective expectations more often than they exceeded them, my form of all-luck egalitarianism would not on that score recommend a net transfer from non-gamblers to gamblers. This shows that the kind of externalities we are talking about are not the net negative externalities found in well-known cases of market failure, such as dangerous anthropogenic climate change. Nevertheless, the non-gamblers’ complaint may still be thought to have some force. Even if they do not expect gamblers’ externalities to make them worse off, they can still complain that they are being subjected to risks that they do not want. Suppose, for instance, that they are very risk averse. In that case, it seems that they are having others’ preferences for risk imposed on them against their will. My position is that this risk imposition is a price worth paying. In some salient cases, at least, the literature seems implicitly to agree. Consider a population consisting of Risk-Taker and Non-Risk-Taker. Suppose Risk-Taker exceeds the speed limit, and crashes, suffering a severe injury. The standard ‘abandonment of negligent victims’ objection to brute-luck egalitarianism centres on the fact that the view would not require Non-Risk-Taker to assist Risk-Taker, as the latter’s bad outcome is a matter of option luck (Fleurbaey 1995; Anderson 1999; Scheffler 2003). But it seems clear that Risk- Taker’s outcome is much worse than what she would have been warranted to expect (most times a driver speeds, they do not crash). So according to my version of all-luck 21 egalitarianism, we can require Non-Risk-Taker to assist Risk-Taker, on the basis that the latter has been unlucky in the sense of receiving less than she was warranted to expect. And this is precisely because egalitarianism construed in this way allows Risk-Taker to impose externalities, such as the cost of Risk-Taker’s medical treatment, on Non-Risk- Taker. Most writers who consider such cases agree that these externalities are appropriate, albeit on non-luck egalitarian grounds (for instance, on account of equal social status requiring that no one’s basic needs be imperiled). This suggests that it is an advantage, not a disadvantage, of my account that it is willing to impose risks on non- risk-takers on the basis of relieving risk-takers of unexpectedly bad outcomes. Furthermore, as this basis is a construal of luck neutralization, the all-luck egalitarian response to the abandonment objection is specifically a luck egalitarian response, not the more typical external imposition on the view. It may be replied that, while externalities are justified in abandonment cases, that is only on account of the dire straits faced by Risk-Taker. Where a different risk-taker is just made a little worse off on account of unexpectedly bad outcomes, no assistance at non-risk-takers’ expense would be justified. Such a response does, however, effectively concede that luck egalitarianism can not itself adequately account for abandonment cases, and must be tempered with some other (perhaps sufficientarian) view in order to deliver the assistance Risk-Taker needs (see Casal 2007, 321-23; Voigt 2007, 404-5).17 That 17 An alternative is to reinterpret luck egalitarianism as not objecting to brute-luck inequalities, in which case providing for basic needs unconditionally might not conflict with luck egalitarianism (see Segall 2010; 2012). This is, however, at odds with luck egalitarian’s distinctive opposition to the differential distributive effects of brute luck, and problematic in other ways; see Knight 2011. Moreover, even if we allow this 22 concession is, I think, out of proportion to the concerns about externalities and risk that motivate it. If we are luck egalitarians, why would we think that imposing non-negative externalities on some, for the sake of preventing luck elsewhere, was such a high cost that we should avoid it even at the cost of giving up our view in the abandonment cases that have been central to the debate? There are relatives of the abandonment cases in which all-luck egalitarianism will offer much less assistance to those disadvantaged through their own actions. Where option luck is barely involved – where the result follows almost directly from choice – little assistance would be forthcoming. This is, I think, plausible, as is suggested by the critics of luck egalitarianism’s focus on the negligent victims of option luck, who face unusually bad consequences of ‘illegal turn[s]’ and ‘slightest mistake[s]’ (Anderson 1999, 295; Fleurbaey 1995, 40). Their arguments would be much less appealing were the ‘victims’ engaged in activities for which a severe injury is a common outcome, such as driving at a tree at high speed. In these cases of ‘predictably destructive victims’, it is doubtful whether we feel that there is an obligation to provide much assistance. But all- luck egalitarianism would still, typically, allow that some assistance (paramedic treatment to prevent death or permanent incapacity, say) is due. Even when one drives at a tree, one might miss, so the expected value is still slightly higher than severe injury. In short, then, all-luck egalitarianism holds that risk-takers may justly impose externalities on non-risk-takers insofar as the former are unlucky. As we have seen, this move, it does not yield a luck egalitarian justification for assisting negligent victims. It only removes the conflict between a non-luck egalitarian justification and luck egalitarianism. 23 equips all-luck egalitarianism to withstand the most familiar external criticism of luck egalitarianism, to wit, that it is too harsh on those with bad option luck.18 VI. Conclusion I have argued that an all-luck egalitarian distribution should have the following features: (a) option luck is neutralized not just by correcting luck among gamblers, but among the community as a whole, because it would be unfair for gamblers as a group to be disadvantaged relative to non-gamblers by bad option luck; (b) individuals receive the warranted expected results of their gambles, except insofar as individuals blamelessly lacked the ability to ascertain which expectations were warranted; and (c) where societal resources are insufficient to deliver expected results to gamblers, gamblers receive a lesser distributive share which is in proportion to the expected results. This form of all- luck egalitarianism allows risk-takers to impose externalities on non-risk-takers, but this seems beneficial in light of the abandonment objection. Although my focus has been on explaining how all-luck egalitarians should handle option luck, my arguments might have implications for views which are not egalitarian. Pluralistic views which include components concerned with absolute well- being and individual responsibility, such as ‘responsibility-catering prioritarianism’ (Arneson 1999; 2000), could construe the responsibility component as treating option luck in the same way as all-luck egalitarianism.19 The responsibility component is usually 18 Another way of resisting this objection is to hold that individual responsibility for disadvantage decreases over time (see Navin 2011; Tomlin 2013). This view could be combined with all-luck egalitarianism. 19 For other such views see Segall 2010, ch. 8; Temkin 2011; Knight 2009b, ch. 6. 24 conceived of as being concerned with neutralizing the inequality-producing effects of luck, and Arneson (2000; 2011) describes responsibility-catering prioritarianism as luck egalitarian. If the best construal of luck egalitarianism is the above form of all-luck egalitarianism – something I do not claim to have proven – it would seem to follow that the responsibility component of pluralistic views should be concerned with replacing the effects of option luck with the expected value of individual choices (corrected for non- culpable incapacity and for any resource shortfall or excess in the ways described). We can, then, acknowledge the worry that all-luck egalitarianism levels down and otherwise violates non-egalitarian norms of justice by combining it with concern for absolute levels of well-being in a pluralistic view. Acknowledgments Research for this article was supported by the British Academy. An antecedent of the paper was presented at the University of Stirling. I thank the participants on that occasion, and especially Simon Robertson for discussion which influenced the present treatment of probabilities. Shlomi Segall and two anonymous referees also provided very helpful written comments. References Anderson E (1999) What is the point of equality? Ethics 109:287-337 Anderson E (2008) How should egalitarians cope with market risks? Theor Inq Law 9:239-70 Arneson R (1989) Equality and equal opportunity for welfare. Phil Stud 56:77-93 25 Arneson R (1999) Equality of opportunity for welfare defended and recanted. J Polit Philos 7:488-97 Arneson R (2000) Luck egalitarianism and prioritarianism. Ethics 110:339-49 Arneson R (2007) Desert and equality. In Holtug N, Lippert-Rasmussen K (eds) Egalitarianism. Oxford University Press, Oxford, pp 262-93 Arneson R (2011) Luck egalitarianism – a primer. In Knight C, Stemplowska Z Responsibility and distributive justice. Oxford University Press, Oxford, pp 24-50 Barry N (2008) Reassessing Luck Egalitarianism. J Polit 70:136-50 Cappelen A, Norheim OF (2005) Responsibility in health care: a liberal egalitarian approach. J Med Ethics 31:476-80 Casal P (2007) Why sufficiency is not enough. Ethics 117:296-326 Cohen GA (1989) On the currency of egalitarian justice. Ethics 99:906-44 Dworkin R (1981) What is equality? Part 2: equality of resources. Philos Public Aff 10: 283-345 Dworkin R (2011) Justice for hedgehogs. Harvard University Press, Cambridge, MA Fleurbaey M (1995) Equal opportunity or equal social outcome? Econ Philos 11:25-55 Fleurbaey M (2001) Egalitarian opportunities. Law Philos, 20:499-530 Fleurbaey M (2008) Fairness, responsibility, and welfare. Oxford University Press, Oxford Fleurbaey M (2011) Four approaches to equal opportunity. In Knight C, Stemplowska Z (eds) Responsibility and distributive justice. Oxford University Press, Oxford 2011, pp 77-97 Knight C (2009a) Describing equality. Law Philos 28:327-65 26 Knight C (2009b) Luck egalitarianism: equality, responsibility, and justice. Edinburgh University Press, Edinburgh Knight C (2011) Inequality, avoidability, and healthcare. Iyyun 60: 72-88 Lippert-Rasmussen K (2001) Egalitarianism, option luck, and responsibility. Ethics 111:548-79 Lippert-Rasmussen K (2005) Hurley on egalitarianism and the luck-neutralizing aim. Polit Philos Econ 4:249-65 Markovits D (2008) Luck egalitarianism and political solidarity. Theor Inq Law 9:271- 308 Navin M (2011) Luck and oppression. Ethic Theory Moral Prac 14:533-47 Robertson S (2011) Epistemic constraints on practical normativity. Synthese 181 suppl 1:81-106 Roemer J (1996) Principles of distributive justice. Harvard University Press, Cambridge, MA Roemer J (1998) Equality of opportunity. Harvard University Press, Cambridge, MA Scheffler S (2003) What is egalitarianism? Philos Public Aff 31:5-39 Segall S (2010) Health, luck, and justice. Princeton University Press, Princeton Segall S (2012) Why Egalitarians Should Not Care About Equality. Ethic Theory Moral Prac 15:507-19 Temkin L (2011) Justice, equality, fairness, desert, rights, free will, responsibility, and luck. In Knight C, Stemplowska Z (eds) Responsibility and distributive justice. Oxford University Press, Oxford, pp 51-76 27 Tomlin P (2013) Choice chance and change: luck egalitarianism over time. Ethic Theory Moral Prac forthcoming Vallentyne P (2002) Brute luck, option luck, and equality of initial opportunities. Ethics 112:529-557 Vallentyne P (2008) Brute luck and responsibility. Polit Philos Econ 7:57-80 Vallentyne P (2011) Responsibility and false beliefs. In Knight C, Stemplowska Z (eds) Responsibility and distributive justice. Oxford University Press, Oxford, pp 174-86 Voigt K (2007) The harshness objection: is luck egalitarianism too harsh on the victims of option luck? Ethic Theory Moral Prac 10:389-407 
work_chzymr5adjbzrb7urdfqxf5zai	----	None 
work_ck2p6qjxqvgbbpmykdnzsvhusm	----	Sociology and Anthropology 7(7): 313-326, 2019 http://www.hrpub.org DOI: 10.13189/sa.2019.070703 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System Abebe Bahiru Bezabh School of Law, University of Gonder, Ethiopia Copyright©2019 by authors, all rights reserved. Authors agree that this article remains permanently open access under the terms of the Creative Commons Attribution License 4.0 International License Abstract Ethiopia is one of the countries which have compositions of ethnic groups and indigenous peoples, most of which they have endemic modalities of peacekeeping mechanisms and conflict resolutions practices. These varieties of Indigenous Dispute Resolution Mechanisms (hereafter IDRMs) have been using as peaceful means of disputes resolution processes. In practice, despite lack of legal recognition, informally the communities have been utilizing IDRMs to settle criminal disputes including serious ethnic conflicts. The available substantive and procedural criminal laws of Ethiopia are futile to prescribe rules which may perhaps facilitate the incorporation and better use of IDRMs into the criminal justice system. This research aims to respond question how can formal criminal justice system effectively utilize IDRMs? The researcher applied qualitative research methodology that covered both primary and secondary sources. The finding shows that IDRMs necessitates recognition through integration into the formal criminal justice system based on the restorative approach is a valuable assertion. Finally, the writer suggests the application of dynamic and participatory approach of which could recognize IDRMs as a good option to the communities to resolve disputes by the predictable peaceful solution. Such an approach can limit the challenges of the formal criminal justice system; since, those indigenous resolutions are accessible, effective and efficient, less expensive, less coercive and more respectful options. Keywords Indigenous Dispute Resolution Mechanisms (IDRMs), Restorative Justice, Integration, Criminal Justice System 1. Introduction 1.1. Background of the Study Modern formal criminal justice system flourished with modern state formation during the 14th-17th centuries (Skoll, 2009). In the 18th Century, most European countries were at the stage of socio-economic transformation and industrialization. The Egalitarian and dynamic inception of democracy and right protection were spread over Europe and North America. This age of enlightenment branded with the establishment of new perspectives of political administrations, accommodations of the diverse value of moralities, and new perspectives in understanding crime. Legal development and transformation reflected by adoption and transplantation of legal systems. Skoll (2009) describe the age of enlightenment after the overthrow of autocratic and feudal regimes began to be replaced with structured state institutions that granted the opportunity to organize and frame the modern legal system. The enlightenment philosophers and classical criminologist of the 18th Century had significant contributions to legal renovation. Tuori (2010) depicts the development of modern criminal justice influenced by European civil law that was followed by the codification of codes in different categories, and Anglo-American common law school concerned case law or precedent. Some European countries have absorbed the civil law without any revision of their customary or indigenous system; whereas, legal scholars of Germany critically reviewed their indigenous rules before transplantation of the civil law. Former British colonies were accustomed to adopt a common law legal system. In addition, it was necessary to institute the judicial organ which empowered to interpret and enforce the due process of law. Colonizers’, especially in Africa countries, had demanded ‘system’ which instituted by organs of selected legal practitioners, Judges, Juries and focus groups to 314 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System interpret and analyze the implementation of the laws. These establishment processes were administered and organized by state. Protection of the community from heinous criminals affirmed as the responsibility of the state. In doing so, the legal scholars formulated ‘criminal justice system’. In the criminal justice processes, there are two basic models due process model and crime control model (Packer H, 1964). The difference between these two models is, the former characterized to safeguard the protection of the accused; whereas, the latter ambitious to the protection of the public interest. Besides, there are also two criminal justice procedural systems i.e. adversarial and inquisitorial. Adversarial system the parties to conflict act independently and they are responsible for uncovering and presenting evidence in front of a passive and neutral trial jury; the inquisitorial system is different which is the ultimate responsibility for finding the truth is the burden of officials of the justice system. Tuoris (2010) explains that the era of transplantation of legal system, the criminal justice system was inherently adopted by the transformative developing countries, while, they are at the stage infancy to hold perfection of the system. The immediate political benefit of the criminal justice system is ‘social control’ which grants opportunities for the state to administer the community with a monopoly of power (Grace Jennifer, 2004). The excited perception and expectation of states had favored the spread of the criminal justice system to post-colonial Asian and African countries. The criminological origin of conceiving crime and criminals as evil and punishing through punitive methods passed different ‘classical’ and ‘neo-classical’ theories and philosophical formulation stages (Mark & Henry, 2004). Scholars had been pursuing scholarly approaches to contextualize peace, justice, stability, and prosperity. Despite such tremendous efforts, still there is an increasing number of the prison population, increasing criminal recidivism, rising crime rates in ‘modern system’, and the corrupt decision of criminal justice system officials are challenges (UN Restorative Justice Handbook, 2006). The Criminal justice system has been presumed as a cure for crime prevention and the pursuit of justice implicit within the framework of the retributive approach. The transplantation of criminal justice had faced challenges in the midst of pluralistic legal traditions in Ethiopia from its inception up until now. There are more than 85 diversified nations, nationalities, and peoples in Ethiopia. Over 60 indigenous dispute solutions are available which emanated from culture, religion, historical practice of the people (Gebre Yntiso, et al, 2010). To mention few IDRMs; _ Oromo Geda System _ which is practiced in Oromiya Region; Erik ena Shemeglena _ exercised in Amhara Region; Mada _ applied in the border between Afar and Tigray Regions; and etc. The Ethiopian legal tradition is pluralistic due to the presence of such heterogeneous cultural dispute resolution mechanisms. For a long period of time, these cultural dispute resolutions mechanisms have been used to reconcile interpersonal disputes and serious tribal conflicts. This research aims to introduce the approach to indigenous dispute resolution mechanisms as restorative justice in the Ethiopian criminal justice system. The enormous commitments of the state on criminal justice have been surfed less concern to indigenous solutions. Despite this, magnificently in some circumstance, indigenous resolutions have been exercised to resolve serious conflicts; even when the criminal justice has failed to do so. If that is so, why the criminal justice system is overlooked to use those customary dispute resolutions properly? Besides, the question of how to properly integrate the indigenous resolution mechanisms to the criminal justice system is the fundamental issues of this research. 1.2. Objectives of the Study This research intended to explore a better method which helps to utilize indigenous dispute resolutions in the criminal justice system of Ethiopia. Therefore the basic objective of this research is to discuss the way how to integrate indigenous dispute resolutions into Ethiopian criminal justice system in order to enhance functional contributions in solving disputes and serving justice, peace, and stability the community. There are also specific objectives of the main objective:-  To examine the relevance of the application of indigenous dispute resolutions; that could reduce the challenges of the criminal justice system;  To discuss the best approaches to draw lesson to use IDRMs;  To review selected theories of restorative justice which could facilitate to use IDRM; and  To make recommendations for accessible inclusive, collaborative, and participatory criminal justice processes that can integrate indigenous conflict resolution mechanisms. 1.3. Research Questions 1.3.1. General Question  How can we effectively utilize indigenous dispute resolution processes in the Ethiopian criminal justice system? 1.3.2. Specific Questions  What problems hinder to adopt indigenous resolutions?  Is it possible to integrate indigenous dispute resolution into the formal criminal justice system of Ethiopia?  Which approaches or theories do we need to incorporate indigenous dispute resolutions or what Sociology and Anthropology 7(7): 313-326, 2019 315 type of legal and practical formulation is better to integration?  Who is responsible for the proper integration of IDRM? 1.4. Methodology of the Study This is qualitative research that relies on extensive use of primary and secondary sources. The qualitative approach is considered necessary because: first, this research has the objective of exploring or to get an insight about the way of integration of indigenous resolution into the criminal justice process. This research has also objectives that explore the interest of the community and criminal justice system about the usage of cultural dispute resolution in criminal matters. The qualitative approach includes different modes of data collections these are: i.e. primary data collected by structured and semi-structured interview, informal discussion, focus group discussion, and observation. Secondary sources also applied references research findings, books, articles and review of court real cases. 1.4.1. Research Population The study population selected from the officials of the criminal justice system and from the community members who have experience and knowledge about IDRMs. The primary organ of the criminal justice system is the legislative body. Therefore, the researcher conducted an interview with a few Regional Administrative Council members. The legal officers in different levels of criminal procedure including Investigation Police Officers, Public Prosecutors, and Judges are the relevant research population of the study. The samples of this study are collected from Amhara Regional state, one of the regions in Ethiopia which have compositions of IDRMs. The researcher purposefully selected three Zones from the region i.e. South Wollo Zone, North Shewa Zone, and South Gonder Zone. From each Zone, one Woreda (district) has selected which comprise different levels of the criminal justice process and institutional organs. Therefore, generally, three districts have chosen as the target area. The justice system officials including; Judges (district Courts, High Court, and Supreme Court and Regional Cassation court), Public prosecutors and investigation police officers are target population of the study. The other focus group populations are the victims, suspects, offenders and community participants who are using indigenous resolutions as a mechanism to solve the criminal dispute are also basic participant contributors for the research. 1.4.2. Sampling Methods and Size To select the specific target individuals for a qualitative approach, the writer operates a purposeful or judgmental sampling method. Officials of criminal justice institutions have selected by judgmental quota sampling; because, the numbers of cases which are executed by indigenous resolution significantly vary at each level of courts and prosecutor offices. It is obvious Woreda courts (district courts) and prosecutor offices are comparatively entertain enormous criminal cases than any other levels of courts. The sample sizes of the selected population have assigned by the proportional number of professionals in each level of courts from three zones i.e. South Wollo, North Shewa, and South Gonder. From each specific Zone, one district/woreda/ has selected to conduct an interview, group discussion, and observation of indigenous resolution processes. With regard to legislative organ, two regional representatives of the Administrative Council interviewed. While it was difficult to fix the sample size of victims and suspects who exercised the indigenous dispute resolutions; the researcher has used other supplementary methods of focus group discussion with community participants. 1.4.3. Data Collection Tools There are different tools for primary data collections from which this research applied interview, observation, and focus group discussion. In this regard, the interview questions and focus group discussions vary according to the personal contribution and involvement into the criminal justice system or into IDRMs. For instance; the questions which are raised for legislative members have more concerned about the legal status of the region on IDRMs to recognizing the law. Generally, the types and contents of the questions prepared by assessing the responsibilities, positions and expected knowledge on the matter at hand. 2. Introduction to Indigenous Dispute Resolution Mechanisms as Restorative Justice 2.1. Indigenous Resolutions Mechanisms: General Overview Ethiopia is one of the countries which composition of ethnic diversity and endemic customs of conflict resolutions practices. Customary laws have been used for a long period of time that has a tremendous contribution to solving disputes and conflicts which grant sustained peaceful relation of the community. Particularly in the Ethiopian rural areas, the customary process of dispute resolutions has a valuable contribution to settle disputes and to maintain the socio-economical peaceful relations. Before the introduction of theoretical analysis, it is valuable to introduce the concept of what is ‘indigenous’? What makes related to dispute resolution? In fact, the term ‘indigenous’ has used in different perspectives; whereas, this introduction focus is on the concept and relation with the dispute resolution. Most of the cases the word ‘indigenous’ sited in circumstance referred as an indication of ‘distinct identity of something’ for example ‘indigenous 316 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System people’, ‘indigenous language’, ‘indigenous laws’, and etc (Malan Jannie, 2005). While the concept is ambiguous, the word indigenous laterally understand ‘not coming from another place’ or ‘survival of native communities based on cultural, political, and economic realities’ (Burkhardt & George, 2009). There are other complementary terminologies that applied interchangeable words like ‘native’, ‘customary’, and ‘aboriginal’ etc are familiar by different scholars (Damren, 2002). As Proulx Craig (2005) explains indigenous indignity was a redundantly rehearsed to explain circumstances which related with preservation of endemic identities of society before colonization. Most of the post-colonized countries suffered the extinction of native identities. This could be caused by the perception of colonizers to undermine native languages and aboriginal cultural practice as barbaric and primitive. Repealing indigenous customary laws is one of dimension which European colonizers altered indignity of colonies; instead, they brought experiences of their own legal system. For example British colonies faced to serious disaster to sustain their indigenous customary laws which forced to follow Anglo-American common law legal system; similarly, German and French colonies preserved civil law into their legal system. In this regard, Ethiopia is a historic and heroic nation that preserves her from the horrific effect of European colonization. Despite this, the political ambition and dream to create modern Ethiopia cost the nation to neglect the aboriginal resolutions processes by transplanting western laws (Beckstrom, 1973). What is Indigenous Dispute Resolution (IDR)? One reflection of indignity is dispute resolution practice which is performed by aboriginal communities to restore peace according to customary laws (McAuliffe, 2013). Such dispute resolution experiences have special affiliations with culture and religion which conflicts resolved by the participation of the community. Such a community-based approach to crime deeds has accustomed as the essence of integrity for indigenous society. It is not only punishment of the offender rather it is more about restitution of the victim and back the offender to the community. In 2007 the UN has acknowledged the right of indigenous people by Declaration on the Rights of Indigenous People for protection and to the preservation of custom and local identity. Despite the non-binding effect, the declaration has conferred provisions that assert the normative rights and protection of indigenous peoples. Protection of indigenous laws and institutions covered under Article 34 is; Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards (UN declaration No.61/295). Why Indigenous? There are other phrases which interchangeably used by substituting this conception of cultural dispute resolution. Scholars have been frequently used the phrase ‘Alternative Dispute Resolution’ (ADR) to refer IDRMs in their writings. Their justification is the term ADR includes all types of resolutions which are ‘alternatives’ to the criminal justice system. Of course, in some countries, these cultural dispute resolutions are ‘real’ alternatives and they have impressive roles in assisting the criminal justice system. Whereas, the experience in Ethiopia shows that, despite availability indigenous resolutions have failed to be recognized as ‘real alternatives’. The term alternative dispute resolution is inappropriate to IDRMs because little or no effort has been done to adopt by the criminal justice system. It is unfair to argue those customary solutions are functional alternatives. The community members have devoted to exercise IDRMs without recognition of the state justice organs. There are countries which have experienced with the utilization of indigenous resolution as an alternative to criminal justice with some sort of modification of cultural practice into restorative programs. But, the situation in Ethiopia is unenthusiastic to native solutions. Despite rich compositions of indigenous resolutions, the Ethiopian justice system and native solution experiences still stand in different directions; but both admit one’s importance of the other. The basic question is how can mitigate the theoretical and practical gaps of the two sides. The compromise of such diverse reality would significantly valuable to both; criminal justice system could be assisted by the community participation in the investigation of crime deeds, decision making a role that supposed bring long-lasting crime prevention and decrease crime recidivism; in response native traditional resolutions could improve its performance by the recognition of the criminal justice system. 2.2. The Link between Restorative Justice and Indigenous Dispute Resolution There are tremendous commentary books, research findings, reports published to define restorative justice. It has to confound to be presented in academics as “New paradigm”, “program”, “criminal justice model”, “alternative to dispute resolution” and “community justice”(Daly & Immarigeon, 1998). The origin and concept have not yet settled and seems such contentions continuous. Howard Zehr (2003) who is referred as the grandfather of restorative justice suggested that the motive of restorative justice was started in the 1970s and its effect flourished in 1990s in Canadian Christians and in some European countries. Van Ness and Strong, K. (2009), have sighted Albert Eglash (1955) as the first person who states the term ‘restorative justice’ in 1955 when he wrote an article to suggest types of criminal justice. Braithwaite (2002), one of the influential theorists of restorative justice, has rejected the assumption of origin of restorative justice Sociology and Anthropology 7(7): 313-326, 2019 317 before his work of “Re-integrative shaming theory and restorative shaming”, in 1989. Others have suggested the philosophical conceptions of restorative justice raised far behind human communal history. Disputes and conflicts are part of social life and cultural resolutions have started to use before the revival of the modern criminal justice system; whereas, as Daly (1998) describes that the past of restorative justice was the worst stage of development. However, as Hadley (2006), argues restorative justice is at a deeply rooted spiritual foundation instituted by moral values of the believers and connected with cultural identity. The links between customary dispute resolutions and conception modern restorative justice have flourished in the late 19th century when the community accustomed to solving its’ problem by indigenous resolution mechanisms. So, it would be improper to reject the attributions of native solution that rejuvenated from religious sources and the cultural hierarchy of society elders. Therefore, one can argue the ancient conception of restorative justice was revived from the native community that aspires the characteristics and values of restorative justice. Braithwaite is the one who acknowledged the indigenous societies could be sources of a new vision in serving justice. He appreciates the indigenous traditions of Maori people family based resolution converted to Family Group Conference (FGC) and South African Ubuntu laterally means “I am what I am because of what we all are” or “being-with-others” or “humanity or affection each other” by his recent work ‘Restorative Justice and Responsive regulation’ (Braithwaite (2002). He claims, despite lack of perfection and mismanagement in indigenous tradition, it would contribute to a new vision of justice. The term restorative justice has regarded as controversial based on social, economic and ideological differences between scholars perspectives. Some are elucidated as the third alternative of criminal justice adding with traditional retributive and rehabilitation in the criminal justice system (Zehr (2005). Criminal justice has little room for victims, offenders, and community participation due to a misleading perception of crime is wrong against the state; but in the case of restorative justice, crime presumed wrong against the community. There were attempts to accommodate common definition by Van Ness, Zehr and Marshal T, who are prominent and influential restorative justice scholars. Van Ness and Strong, K. defines; Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior. It is best accomplished through cooperative processes that include all stakeholders (Van Ness and Strong, K. (2009). Zehr also define; Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense to collectively identify and address harms, needs and obligations in order to heal and put things as right as possible (Zehr, 2003). As Braithwaite, McCold, and Zehr inferred that, ‘the most acceptable working definition’ was offered by Tony Marshall: Restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future (Braithwaite (2002). The definition consensus is not overwhelming. The contemporary ideal “merging” between community justice and Restorative justice has termed as the greatest challenge to future restorative justice paradigm (McCold, 2004). Scholars admitted external similarities of these two. While, they are also critical about the considerable inner differences; the restorative justice fused to gross collaborative participation of the community with the slight link with criminal justice organs; community justice devoted on action strategies of the criminal justice system (Presser, 2004). In some countries, Youth Offender Prevention Programs and Community Policing and different rehabilitation centers are established proposition and supervision of the criminal justice system. McCold (2004) criticized such experiences which diluted the values of restorative justice. In this regard, there is a paradox as Wheeldon (2009) contested ‘impossible structure of restorative justice’ when if the government is attempting to control processes that shadowed its functionality. Wheeldon furiously criticizes ‘mediation’ will be another sate mode of controlling the society when if it merged with the criminal justice system. There are writers that argued the merger of the two concepts could disrupt the primary vision of restorative justice. But, others strongly denied such critics by confirming these two are not supposed to be controversial rather supportive one to the other. One should not draw hypothetical ‘bridge’ or ‘boundary’ the choice will be the feasibility of restorative justice as a paradigm and the impact on the justice system to restore justice (Presser (2004). In this regard indigenous dispute resolutions are not perfect there are some traditions which could discredit the shinning contributions. Circumstances like disregarding human right principles, ignoring women involvement, prevention of outsiders of the given clan, and some other traditions which could influence the overall quality of participation needed follow-up and supervision by established organ. But, it is shall not mean indigenous resolution should interrupt its substantive values by the state. 2.3. Restorative Justice in Ethiopia and Indigenous Dispute Resolution Mechanisms Are there any conceptions of restorative justice in Ethiopia? In Ethiopia, the concept and origin of restorative justice are not well researched and rare to find the sources in the field. Macfarlane J. by her workshop reflection, ‘Working towards Restorative Justice in Ethiopia: 318 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System Integrating Traditional Conflict Resolution Systems with the Formal Legal System’ described restorative justice as an informal system, as which dominantly practiced in a different part of Ethiopia (Macfarlane, 2007). Her writing is not alleged as research; it is a mere workshop report and personal argumentation on the situation of ‘restorative justice’ and formal justice system. She was not taking time to elucidate what is restorative justice in Ethiopian perspective. She rushed to discussions of the availability of massive religious, tribal informal means or resolutions. Is that possible to argue the Ethiopian indigenous mechanisms identical with restorative justice? There is a lack of critical study in the field; there are of course researches which conducted focus on anthropological discussion of indigenous resolutions processes. Most of the research findings confirmed significant of the customary dispute resolution mechanisms. In recent phenomena, there are attempts to collect the researches by Ethiopian Arbitration and Conciliation Centre (GebreYantiso, 2011). In most of the writings the term “Alternative Dispute Resolution (ADR)” has used interchangeably used to describe traditional resolutions methods. But the question is; does the term is appropriate? Even, Ethiopian Criminal Justice Policy has used the term ADR explicitly to name IDRMs. Whereas the term may not functional name for IDRMs. The reason is; those traditions were not practical alternatives as indicated by the name. That is why this research choose the term ‘indigenous’ to identify those native cultural dispute resolution which the criminal justice system is persistently disregarded to recognize them. To be alternative there have to equal footing and opportunities; unless making two things as an alternative would amount disregarding the disadvantaged. In addition, the term ‘Alternative’ has dispersed argumentations; some said, alternative indicate a choice of the criminal justice system to apply such process that submerges resolution as subsidiary to the formal justice system. The FDRE constitution Article 34 has granted some protection to customary courts for interpersonal disputes and family matters; while, it silent to include criminal cases. Therefore, some have argued the constitution is vague at this context to grant recognition of traditional process to apply on the criminal matters (Ayalew Getachew, 2012). Despite all these controversies, the Ethiopian criminal justice system is dominantly surrounded under consistently practiced endemic cultural resolutions. Before the coming of unfamiliar foreign laws, the societies settled the conflict by religious and tribal informal rules. Historically, the Ethiopian legal system is transplanted from foreign laws that used sources of different basic codes and state made proclamations (Aberra Jembere, 2000). These transplanted European laws were unfamiliar to people and in every stage of codifications, it lacks to concern about indigenous rules. Ethiopian laws/codes have resisted by society due to newness of the legal contents and discriminatory nature of laws by religion, race, ethnic, and sex. Fisher. Z (1971) in his criminal procedure commentary book clearly shows his amazement on action and devotion of Ethiopian government and he criticized futile perception of the prior existences of customary dispute resolutions. Even in present days the Ethiopian criminal justice system is still out of revelation and ignored IDRMs ideally and practically. Little acknowledgment has made in the FDRE Constitution and recent Federal Criminal Justice Policy (2010); whereas, it lacks clarity, specificity, feasibility, and practicability of the rules about the application of IDRMs. Those rules under the policy are not clear whether ADR included indigenous resolutions or not. In addition, the policy is failed to be supported by other specific proclamations or regulations. Consequently, indigenous resolutions have practically ignored to apply with the collaboration of the formal criminal justice system. 2.4. Challenges to Integrate Indigenous Dispute Resolutions Mechanisms Why the communities interested to apply indigenous resolutions? Macfarlane argued society may have different grounds which vary according to distinctive types of modalities. Most of the indigenous resolutions accepted as a reflection of identity that demands courage, honor, respect, and faith by the community (Macfarlane, 2007). Defending cultural identity from extinction could also inspire some users to be devoted and some might be tied to fulfill religious duties. Others could also be pressurized by the community or family to preserve indigenous resolution process. There are suggested external factors attached to problems and failure of the criminal justice system. The content of laws and processes has strange character; in fact, some transplanted laws are not still clear even for lawyers. In addition, other political factors like the illegitimate or corrupt government could reflect by the sign of refusal to exercise cultural solutions. Macfarlane (2007), also mention that when the community mistrusts the state and its bureaucracy it would be reflected by marginalizing and intimidating the criminal justice system and that would empower customary resolution practice. She also redundantly told, ‘extreme poverty and hardship’, Africans’ especially Ethiopians stick with informal resolutions due to extreme situation scarcity of needs including food, house, and cloth which developed the social morality of ‘compromise’ rather than ‘justice’. Despite the fabulous ambition to restorative justice, it has challenges like disorganized formation, many dependencies on criminological theory, imperfect analysis of functional mechanisms; distrust of state its political authority over the society. In addition commitment of the government is a basic challenge to integrate indigenous resolutions; diversity and negative side effect are also bottleneck establishing foundations of cultural dispute Sociology and Anthropology 7(7): 313-326, 2019 319 resolution. Though there are conflicting points, the best result would be flourished when IDRMs and criminal justice system support one another rather than disconnect each other. 2.5. Restorative Justice and Theoretical Frameworks to Apply IDRM's As Wheeldon (2009) describes Pavlich’s appraisal, the ‘paradox identity’ of restorative justice hesitated devotion to integration in the traditional criminal justice system. Andrew Ashworth and Von Hirsch (2003) have contests restorative lacks coherent goals and theories which help to implement and they proposed the ‘making amends’ – suggesting restorative justice as a tool of modification of criminal justice. Others like Barton (2000) draw question ‘What is a fair and just response to a wrongful and criminal act, and how can this best is determined?’ In response for a long period of time, the Retributivism _just desert model and Utilitarian’s _Consequentalist model have been the only option (Kellogg, 1977). However, now a day’s such inceptions changed by ‘restorative justice interventions’ (Barton, 2000). There are writers like Zvi D. Gabbay (2005) analyze the retributive criminal justice would not contradict with restorative justice, the retributive theory of ‘just desert proposed by Von Hirsch (1990), has rehabilitative principles. Rehabilitative response to crime which supposed participatory nature amount the characters of restoration that practiced by welfare states (Duff, 2003). UN position on restorative justice reflected as; ‘successful implementation of restorative justice programs requires strategic and innovative initiatives that build on the collaboration of governments, communities, nongovernmental organizations, victims and offenders’(UN RJ Handbook (2006). The question is which theory is better in molding best to practice restorative justice especially indigenous resolutions. Some argues discovery of the single theory of restorative justice would amount fixing the practice of restoration in a specific area; in this regard, there are numerous theories which criticality analyzed in different perspectives of in deploying restoration practices (Andrew Ashworth and Von Hirsch, 2003). Most of the restorative theories are born from criminological theories. Wheeldon (2009), discerns that the integration of restorative conceptions into criminological theories support its advancements such as social disorganization, social learning, and moral development. Labeling theory, re-integrative shaming, peacemaking theories are also other criminological theories. Of course, there are many restorative theoretical formulations with full of critics. For the purpose of this article, it is better to select a theory that supports the implementation of indigenous resolutions. As Braithwaite (2002) proposed a theory of Responsive regulation is best in merging the government responsibility to intervene and a wider consideration of Persuasion (restorative justice). His proposition is a mixture of varieties of theories consideration of their advantages. Indigenous resolutions are characterized by inhabiting diversified behavior which would sometimes impossible to stick in a single theory. In case we might lack to the categorization of certain indigenous resolution into well-known restorative justice models i.e. VOM (Victim Offender Mediation), FGM (Family Group Mediation), or circle (Zehr, 2003). In this regard, some cultural resolutions have composed of unique characters; so theories could be not fitted properly in different perspectives. One reason could be theories have proposed based on restorative justice ‘programs’ which are framed specified characters. In other words, there are scarce theories to consider cultural resolutions. ‘Reintegrative shaming theory’ – is provided as one of the controversial restorative justice theories due to the linkage between ‘shame’ and reintegration (Harris and Maruna (2006). The theory proposed by Braithwaite in 1989, focusing to explain the procedures of restorative justice conferencing methods. Shame is considered a ‘mysterious emotion’. The conception is wide but that should not perceive as humiliation or degradation of the personality of individuals. Rather it is duly informing the criminal about the consequence of his wrong action further to leads him/her repentance. Controversies surrounded the thesis due to the link of internal morality and emotion which could illusive to proof. Braithwaite’s (2002) Reintegrative shaming thesis proposition concerned the advantages of healthy ‘social disapproval’. Condemnation of criminals should be respectful with forgiveness to bring back the offender to the community; while, this was disregarded by criminal justice. On the contrary disintegrative shaming is a high level of stigmatization label criminals as evil and monster status. Reintegrative shaming has values in regarding deterrence of future criminals by threatening offenders’ social relations. Individuals’ relation tied the trend of morality. Imprisonment has accustomed as a way of living inside the prison as a ‘due’ for criminals rather than rehabilitation centers, or prisons have taken as segregation centers and prisoners as extraneous to the society. Such degradation influenced the generation disrespect the punishment and its deterrence principles. Besides, nowadays we are experiencing horrible crimes that disregarded the morality of human essence at the lowest level. For example, no one could be presumed ‘suicidal bombers’ will be deterred by whatever serous punishment- no more punishment than blowing his/her body into pieces. Some argue shaming by sort of forgiveness has had the contribution more than retributive punishment. Incapacitation by segregation or the death penalty is the disintegrative way of punishment. Criminal justice 320 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System processes are called ‘degradation ceremonies by naming different status of wrongdoer’; from the very inception of the suspect, accused, guilt, convict, prisoner and to master status ex-convict. Labeling theory justifies how the criminal justice system predetermines some behaviors as deviant by the decision of the majority of the community (Mark and Stuart, 2004). ‘Responsive regulation theory’ – formulated by Braithwaite, who is the prominent initiator of this theory, informed law enforcers should be responsive to how effectively citizens or corporations are regulating themselves before deciding whether to escalate intervention. He provided ‘Regulatory Pyramid’ which use as an indicator of ‘when to punish and when to persuade’ (Braithwaite, 2002). Braithwaite pyramid classified crimes and criminals for entitlement of persuasion into three categories. These are restorative justice, deterrence, and incapacitation. At the bottom of the pyramid, it is restorative justice which encompasses ‘persuasion’- that stress on dialogue which applied to virtuous or moral capable offenders. But that is not mean punishment never happen in this level; rather it is the matter of priority. At the middle of the pyramid is about little-bit serious criminals that presumed in need of punishment for deterrence purpose and offender is supposed to have ‘rational actor’ who refrain from further wrongdoings. The top of the pyramid is classification about incapacitation (imprisonment and death penalty) which ordered to irrational offender like serious criminals like a psychopathic serial killer. Criminal justice system ‘regulatory formalism’ is criticized as an emphasis on strict prosecution. The responsive theory has suggested these strict formal criminal justice processes need a revision of prior steps before prosecution. Those steps could dialogue, group discussions (before and after crime commission), notice, mediation, and warnings in different forms (written or oral). In short, the theory perceived ‘gives the chance for wrongdoers’ to reconsider his/her character. But that is not mean the criminal is free of punishments each of the three levels. Accordingly, this theory advice to amend the fault of perception of the formal justice system which granted priority of prosecution for every crime and criminals, by indicating that all crimes and criminals should not always be supposed to apply punishment. Punishment presumed the last resort that comes when persuasion is failed. So, by applying this principle as ground, enforcement of indigenous resolutions could be explained. That means the state would permit the interventions of indigenous resolution in strict responsive approach. 2.6. The Experience of other Countries on Indigenous Resolution and Restorative Justice There are countries which actively exercise indigenous resolution in a different form, whether by transforming their own cultural practice into a specialized entity of criminal justice organ or some others adopt other countries experience into their modalities by modifying the customary rules supporting with legal frameworks. In this regard European and Anglo-American countries like that of New Zealand, Australia, and Canada, have excellent experiences. Despite, distorted resistance of some nations, Braithwaite emphatically suggested that, Western nations need to open themselves to learning not only from the restorative practices of their own indigenous peoples but also from Asian, Polynesian, African, and other cultural traditions of restorative justice. There are also the African countries that applied their customary dispute resolution even for serious international crimes, for example, Rwanda ‘Gachacha’ and Truth and Reconciliation in South Africa are the most outspoken experiences. Technically, these countries have been acquired enormous advantages from indigenous resolution. Accordingly, most of the Anglo-American countries adopted restorative justice in different approaches and distinct anomalies. Some of are: ‘Alternative to Prosecution’, ‘Diversion’, ‘Differed’, and ‘Alternative to imprisonment are examples’. Some states also asserted various institutional programs dependent or independent to the criminal justice system including Juvenile and Youth Delinquency correctional programs and rehabilitation centers. These methods aim at diverting the suspect out of the criminal justice system at the earliest possible stage or after conviction (Peter Talk, 2005). 3. Integration of IDRM with the Criminal Justice System The data collected from the study area community participants shows that the demand to use customary dispute resolution mechanisms is very high. However, most of the informants criticized the criminal justice system which is legally and practically reluctant to endorse IDRMs. Basically, the informants confirmed the demand to outline use IDRMs its indignity and independence from any inconsistent foreign intervention. One of the member of Aweramba community told that, the victim of crime who reports a case to the criminal justice system has to patiently wait for long processes of investigation, prosecution, court adjudication, and final judgment. The number of criminal cases adjudicated in the formal justice system is the smallest in proportion to the total number of criminal disputes in the community. The study informants concerned that, the cases brought to criminal justice system encountered with serious procedural delay, the mistake of fact, false accusation, false witnesses, the corrupt practice of criminal justice officials’, and wrongful conviction. These problems have caused the community to be uncertain on the criminal justice system, and highly interested to use those customary dispute Sociology and Anthropology 7(7): 313-326, 2019 321 resolution methods. For example interview with Zumera who is founder and father of the Aweramba Community, shows that justice shall be served by considering the indigenous solutions. According to Zumera, the social structure of Aweramba community is peaceful and dignified. Some interview respondent has also proved Aweramba community is relatively crime free society. The community has a self-administered justice process by the indigenous resolution. Police have little experience to solve ‘private compliant’ criminal matters by ADR mechanisms. Despite lack of proper formal and legal support, as some investigation police officers attest to that, they have been informally resolving criminal cases, even serious conflicts by IDRM. Despite, such inconsistent practice the police firmly acknowledged the advantage and positive contribution to the peaceful relationship and stability of the community and prevention of commission of the crime. Legally, Police neither clearly authorized to resolve cases by IDRMs, nor prohibited such discretion. They suggested formalization of the irregular use of IDRMs into a coherent experience by assigning authorized responsible organ. The interviewed informant polices officers suggested that; it would be able to be coherent and fruitful if there is some sort of legal frameworks to specify the responsible organs to supervise of IDRMs. Court Judges and public prosecutors concerned the circumstances of criminal dispute resolution which has been inundated with complicated legal and practical challenges. First, the community including victim preferred practice IDRMs, even for serious public matters. Second, criminal justice has lacuna to organize coherent legal frameworks and responsible organs to accommodate such community interest. Third, there is a lack of legal experts in the field of indigenous laws. The prosecutors argued that there is ‘legal deficiency’ in the field of IDRMs. Ethiopian criminal laws are reluctant to include flexible provision of restorative nature. Prosecutors and Judges admitted the undeniable contribution towards the accessibility and fairness, as well as complementing the efficiency of the justice sectors. To exercise the IDRMs fruitfully the court Judges suggested the enactment of substantive and procedural laws. The research finding shows that it neither demanded free ride of the IDRMs nor strictly controlled by the state. It rather desires the collaboration between the criminal justice system and IDRMs to have a prominent contribution for technical balance and incredible accreditation of each other. The equilibrium would be able to support the balance of interest between the community demands of IDRM values and considerable collaboration with the state. The responsible organs of the state should have the ambition to grant credit for the IDRMs. Since the processes should be collaborative as ‘give and take policy’ the IDRM benefited state protection and promotion via to policy making and other legal frameworks. The criminal justice system also cultivates the advantage from the IDRMs to solve challenges the inefficient and inaccessible criminal justice processes. The justice officials are interested in the applicability of IDRMs. The criminal justice system should enhance the processes based on the enactment of policy and other laws which help the application of IDRM. Unless otherwise, the present dissected practice of IDRM is support by the state a relational function it will be difficult to be fruitful. Comparatively, this approach has wider recognition of the merit of both IDRMs and formal criminal justice system. The communities follow the trend of their customary resolutions and they support by the criminal justice system or any responsible organ sponsored by state or NGOs’. The integration approach is better to be operational through the devotion of the community and collaboration of the criminal justice organs. So, there must be some coherent formal integration policy of IDRMs in regional level which can help to handle the extensive participatory procedure of dispute resolutions. 3.1. Combined Stochastic - Responsive Regulation To integrate the IDRMs the responsive regulation need to have the additional consideration of community interests besides to offenders’ rationality. The criminal justice system should grant an equal probabilistic opportunity to all crimes and criminals to use IDRMs based on the combined assessment of community interest and rationality of the offender. Therefore the researcher suggested applying stochastic approach which is a diverse triangulation of criminal cases in specific localities. Stochastic can be described as a process or system that is connected with random probability, or the state of criminal matters can have the probability to apply the IDRMs’. Here means, there should be no specific lists of crimes or specific criminals, it rather every criminal matter should have a probability of applying IDRMs. There are several IDRMs which have a different approach to crimes and criminals; most of them are related to moral and religious values. Therefore, based on the combined stochastic approach we need to respect not only offenders’ rationality it also the communities’ perception towards the crime. If we are limiting the IDRMs only to select the rational offender, it will disregard the social interest of the community. Accordingly, the states’ national intervention approach via policy or legal perspective should be probabilistic in consideration of the morality and cultural values of the society. For instance, the conflicts between the Amhara and Afar border have been solved through customary resolution. Conflict is prevalent between the pastoral community of Afar and Amhara around regional borders due to the pretext of possession of grazing land. Sometimes the conflict has out of control to the administration of security organs which resulted in the loss 322 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System of human life and destruction of properties. The same is true with other areas for example border between Afar vs Somali; Oromiya vs Somali; Afar vs Somali etc. But, the indigenous resolution has not supported in other specific areas that are different one locality to the other. For example in Aweramba community crimes of homicide between families solved by their indigenous mechanisms whereas, such a solution may not work in somewhere in other parts of the country. So, the criminal justice system shall be flexible in considering the IDRMs based on each community’s interest as far as the solution is a predictable peaceful feature in the society. The IDRMs have a difference from place to place; some apply for serious crimes others selective to simple crimes. Thus, national integration policy of IDRMs as principle shall not be fixed to listed crimes or criminals; since there are significant discrepancies between the values of the community. Whereas, it should be clear that IDRM should not be careless anticipation enthuses. In fact, random indicates the discrepancy of offenses which can solve by IDRMs in collaboration with the community and the criminal justice system. Despite, the lack of formal processes, it is undisputed the contemporary criminal justice system sporadically attempted to utilize IDRMs to every criminal dispute. Therefore, the community deserves to choose the best solution for the dispute and the state shall be flexible to use those IDRMs. The approach of stochastic can granted the recognition of those inconsistent applications of IDRMs. Contemporarily, no matter the crime and criminal behavior the criminal justice system was unsuccessful to stop the community from using IDRMs. As discussed above, there are many examples in the Amhara region; Aweramba in Fogeraworda, ‘Ydem-Erke’ in Lalo-mama meder Woreda and Amare in Wogdiworeda. The interviewed informants in these areas confirmed that the communities considerably using IDRM even for serious crimes like that of homicide and rape. The way of applying is inconsistent and without acknowledgment of the criminal justice system. In Combined – Stochastic Theory- the processes of IDRMs shall have formal recognition by the criminal justice system. In doing so, the criminal justice system shall establish a responsible organ to the supervision of IDRMs. The organ needs to be authorized by the regional justice Bureau and dawn to local justice offices in woreda/district level. This organ shall be independent to facilitate the regional and local utilization of IDRMs. The functions, duties, and responsibilities and composition of this organ shall determine by law. The mode of integration can succeed by the establishments of an organ which suggested connecting the criminal justice system and IDRMs. The organ shall protect the norm and customs of the community – it should promote the cultural practice and recognize the morality of society. In addition, the processes of the election of members of this organ shall be free of any political, social and economic influences of the state. The organ needs to have the mandate to support and appreciate the practice of IDRMs. (a) (b) Figure 1. (a) Formal criminal justise system (Retributive Approach towords IDRMs); (b) Integration of IDRMs’ with Criminal justise system Sociology and Anthropology 7(7): 313-326, 2019 323 In the contemporary processes of retributive criminal justice approach, the formal criminal justice system and IDRMs has disrupted by challenges. (See Figure-(a)) The criminal justice system much focus search of criminal punishment, while the community has determined to apply cultural solutions. The barrier is a lack of collaboration and clear acknowledgment. The regional state of Amhara involved some dispersed approach to use those restorative IDRMs. The police via-to community policing and formal criminal justice investigation process; prosecutors and Woreda/district/ courts used ‘ADR’ for simple private compliant matters to revoke criminal cases. Such dismantled approach is overlapped one to the other sometimes there are also confusions as to whom and how those organs share duties. Besides, those attempts lack efficiency and effectiveness. The criminal justice has still stood in such confusing circumstances neither determined to the effective operation of IDRMs nor totally ignored the IDRMs. Such disconnected processes can be sorted by the reasonable recognition of IDRM through the stochastic approach. The offender and victim have a chance to solve disputes based on their own selection of indigenous resolution mechanisms. There must be responsible organ [(see above figure (b)] to coordinate the overall process of IDRM which collaborates and support with the criminal justice system. The IDRM coordinating organ might support and finance by the NGOs or the government. It expected to avoid negative challenges of IDRMs by awareness creation training and other mechanisms with the collaboration of the regional state Justice Bureau. This organ shall be established at the regional level to solve the problem of the responsible authority to integrate the IDRMs. Accordingly, the IDRMs can resolve cases by the full consent of the victim, offender, and participation of the community. The process shall be supervised by the IDRMs coordinators who should assess the process of resolution is fair and impartial. The decision of the IDRM should be biding which can be referred to criminal justice organs including to police, public prosecutor, or court. Criminal matters could be diverted from the criminal justice system to indigenous dispute resolution processes from any stage of formal criminal justice proceedings. When the matter is failed to be solved by IDRMs the case shall immediately be transferred to the formal criminal justice system. In addition, the criminal justice system should collaborate via awareness creation training about human right protection, fairness and providing security and peace of the community. Such a mode of integration benefits the criminal justice process through the participation of the community in solving problems. 3.2. Process of Integration via Stochastic – Community Interest This approach has propositions for further discussion of the practical analysis; 1. The first proposition is when the community is against the criminal justice system and in support of using IDRM, in principle the criminal justice system should be positive towards the community reaction. But it could be negative in the exceptional case against the choice of the community. The community may choose to apply the cultural solution to solve criminal disputes. Such practice has been neglected by the formal criminal justice system. The criminal justice system should evaluate the interest of the community; whether the dispute is peacefully settled with the active participation of the society or not. Exceptionally, community elders’ decisions might unsuccessful to resolve disputes; in such case, criminal justice should respond by using formal criminal procedure steps. The IDRMs coordinating organ play role to organize the referral of cases from the IDRMs to the formal criminal justice system and the reverse. The criminal justice system needs to develop trust on the community – the assumption of sole justice is delivered from the state should change and the principle of “bottom-up”- justice shall be done by the community. 2. The second proposition is when if the community is a support to use the criminal justice system and against the IDRMs, the criminal justice system should respond positively to accept the case. In some circumstance, there are cases which the community demands the direct intervention of the criminal justice system. IDRMs might unsuccessful or impossible due to the diversified interest of the community or due to other reasons. In such circumstance, the formal criminal justice system needs step-up to entertain the case by formal criminal procedures. That means when if the community dislike the specific criminal matter to be solved by IDRMs, the state shall be responsible to continue the formal proceedings. The IDRMs coordinating organ shall also to transfer cases from IDRMs to criminal justice organs. 3. The third proposition is, when the criminal justice system is against the IDRMs – the community should assume positive in principle towards the criminal justice system, and might exceptionally reject the position of the criminal justice system. Currently, the criminal justice system intervened in the processes of IDRMs based on the reason of protection of peace and security. When the criminal justice system is responsible to the community, the act of intervention supposed to benefit society. Thus, the community has to acknowledge and should work with the criminal justice system. But, in some situation state might interfere due to 324 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System political or administrative interests. Beyond community peace and security; state political affiliated intervention shall be resisted by the society that has been happening in the present situation when the community reflected through boycotting or refusing the intervention of the criminal justice system. Therefore, the state should reassess its involvement is based on the willingness and interest of society. 4. The fourth proposition is when the criminal justice system in support of IDRMs the community should be positive. The positive responses of integration and ongoing desire of ambition of the criminal justice system can be evaluated by cooperation between the IDRMs coordinating personals and the criminal justice system professionals. Supporting and advocating the process of IDRMs through policy enactment and lawmaking will be able to flourish the success. The collaboration should be in a certain scope of limitation, the criminal justice organs have to respect the norms, values, and moralities of the society. In reverse, the indigenous resolution participants in the processes of IDRMs should also assist the criminal justice system. To clarify the proposition by showing a practical example, Aweramba community is one of the established societies in Amhara Region state in South Gonder Fogera Woreda. This community has its own peaceful indigenous resolution processes. Criminal disputes have chance entertained by family-based dispute resolution processes which led by the community elders. Zumera who is father and founder of this community has the role of settling every type of dispute in the area. On the session of focus group discussion with community members all participants reflected they used to apply their cultural dispute resolutions to settle criminal matters. To highlight the propositions; 1. The first proposition is when the community is much favored the IDRMs the justice system has to tolerate the interest of the society. The Aweramba community has a choice to apply the customary dispute resolution then the justice system could cooperate through IDRMs coordinating organ. Therefore regional coordinating organ shall play the role of facilitation and cooperation. 2. The second proposition is when the community is demanded the direct intervention of the formal criminal justice system, the justice system shall use the integration organ to intervene and apply the formal criminal justice processes. In some circumstance, Aweramba community members might request the formal justice system assistance or intervention then in such situation the justice system shall be cooperative to settle matters through formal criminal justice processes. 3. The third proposition is when the formal justice system is interested to intervene in the IDRM processes; such intervention shall be taken positively. But such a proposition is to aim the protection of the society from the negative impact of the IDRMs. For example, when if the decision of the Aweramba community dispute resolution is suspected of negative effect against the public interest of the society the formal criminal justice system shall intervene via coordinating organ. Such intervention shall be independent and free from any political interest of the justice system and it shall be assessed case by case. 4. The fourth proposition is when if the criminal justice system is interested to assist the IDRMs the community shall accept the cooperation. For instance, when the justice system is devoted to supporting Aweramba community indigenous resolution mechanism, it shall be positively interpreted. However such cooperation shall be free of strange intervention to the community. Generally, the stochastic approach can be applied through the collaboration of the formal criminal justice system and the indigenous dispute resolution mechanisms. 4. Conclusions In Ethiopia, almost every criminal matter including serious crimes, have been resolved according to the customary laws and indigenous dispute resolution mechanisms. The indigenous dispute resolutions have a magnificent contribution to solving criminal disputes that can support the criminal justice system in different forms. The formal retributive criminal justice system inundated with continuing challenges that related to victims participation, community interest, and lesser concern to the harms of victims and restoration of the damage. In addition, the criminal justice system has criticized by high cost, delay, ineffectiveness, increasing number of the prison population, and inefficient deterrence effects. Even more, serious problems of crime sin investigation which is more dependent on the oral witnesses have obsessed the legal personals to corrupt and mistaken decisions. So, the main theme of this research is to investigate the way how to utilize IDRM effectively by integrating with the formal justice system. The research finding shows the two, both the formal criminal justice system and IDRM, shall approach each other with the intervention of third ‘organ’. So, the integration processes have to reconsider the essences and benefits of each other. Therefore the researcher has proposed a solution to the integration of IDRMs into the criminal justice system as restorative justice to confer the method which the contemporary criminal justice system to be accessible, participatory, effective and efficient. The integration of IDRM suggested using the stochastic national approach Sociology and Anthropology 7(7): 313-326, 2019 325 which determines by assessments of the interest of both formal criminal justice system and the community participants including victims and offender. Since these two has collaborated the utilization processes will be effective and efficient. 5. Recommendations To utilize IDRM effectively the researcher suggested the following solutions; i. Amendment of Legal Frameworks The Federal laws including the FDRE constitution, criminal justice policy have failed to recognize the IDRMs. Besides, the criminal code and criminal procedure code ignore the very idea of indigenous resolutions. Even the draft criminal procedure is not embraced provision about IDRMs. So, the federal legislative organ shall enact or amend those legal frameworks. Regional states granted by the federal constitution to formulate policy and strategy that states would enact policy about the IDRMs. Regional governments’ initiation and commitment have a considerable contribution to the proper formulation of guideline for the application of IDRMs. So, the regional state shall enact the policy document which offers acknowledgment of integration and formal utilization. Further, the regional state can frame criminal law that recognizes IDRMs which is not covered by the federal criminal law. Hence, the regional council can formulate provision about the integration of IDRMs. ii. Establishment of IDRMs Coordinating Organ The IDRMs require permanent and responsible organ to coordinate the processes. The effects of a lack of responsible organ reflected through multiple confusions of different institutions. The Federal Ministry of Justice shall have specifically designated to coordinate and supervise regional states performance. Structurally the Federal IDRM coordination organ shall be established by law. Besides, the coordination organ must also establish at the regional level. The regional coordination organ shall be responsible for the Regional Justice Bureau and the power and duties must be determined by the law. The IDRMs coordinating organ institute by the collaboration of the criminal justice system which aims responsibility to facilitate and support the IDRMs’. The responsibilities of this organ are to facilitate the processes of integration by providing necessary infrastructures, selection of independent personnel to coordination role, provide training and other coordination roles. As it is the nearest to each cultural dispute resolution the regional coordination organ shall be responsible for the integration of IDRMs. This organ must scrutinize the features and resolution processes of each cultural resolution methods. Further, this organ shall propose an action plan for the implementation of IDRMs. iii. Conduct Research works The regional IDRMs are diversified in type and character which complicated the harmonization processes. To clarify the challenges extensive empirical researches have to be conducted. There are various characteristics of IDRMs; to accommodate and discern such diversified interests the Regional Justice Bureau should conduct research. The studies should also scrutinize the methods of integration of the criminal justice system. iv. Resolve Financial Constraints The state shall be committed to allocate budget to the establishment and integration processes of the IDRMs. Unless financial constraints solved, the researches and proposed means of utilization will be out of a function or fruitless effort. For this purpose, the regional state shall offer a proper amount of budget. There are also the possibilities to find financial support from different NGOs’. v. Legal Experts and Law Schools Other countries experience shows that in their law school curriculum there are courses dedicated to studying the indigenous laws, but there is no such experience in Ethiopia law schools. Ethiopian law schools devoted studies on transplanted foreign laws. Even more, the law schools dedicated the scrutiny of researches that analyze the codified laws. In addition, most of the legal writings drastically been dreaming ‘modern laws’ and subordinate the indigenous laws. Accordingly, legal experts who graduate from higher education knew foreign laws while they don’t know about their own indigenous laws. Due to that, there is a problem of legal experts in the field of IDRMs. Therefore, as recommendation Ethiopian law schools should be fruitful to assess and give due consideration on indigenous laws. REFRENCES Aberra Jembere, (2000). An Introduction to the Legal [1] History of Ethiopia 1434–1974. Hamburg, Germany. Ayalew Getachew Assefa (2012). Customary Laws in [2] Ethiopia: A Need for Better Recognition? A Women’s Rights Perspective. Danish Institute for Human Rights (DIHR). p.24. Barton, C., (2000). Theories of Restorative Justice, Just [3] Peace? Peace Making and Peace Building for the New Millennium.Massey University Centre for Justice and Peace Development. (pp. 63 – 73). Beckstrom John H. (1973). Transplantation of Legal [4] Systems: An Early Report on the reception of Western Laws in Ethiopia. The American Journal of Comparative 326 Approach to Integrate Indigenous Dispute Resolution Mechanisms as Restorative Justice in Ethiopian Criminal Justice System Law. Vol.21. Braithwaite J, (2002). Restorative Justice and Responsive [5] Regulation. Oxford University Printing, p.3 Burkhardt Kate J. & George G. (2009). Restorative [6] Justice.Psychology Crime & Custom. 48-410. Daly K. and Immarigeon R. (1998). The Past, Present, and [7] Future of Restorative Justice: Some Critical Reflections. The contemporary criminal Justice Review, P.2. Damren Samuel (2002). Restorative Justice Prison and the [8] Native Sense of Justice, Journal of Legal Pluralism. No.47. pp.83-111. Duff, A. (2003). Restoration and Retribution, ‘in’ Von [9] Hirsch, A, Roberts, J. V., Bottoms, A. (et al), Competing or Reconcilable Paradigms?. Hart Publishing. Oxford. p.43. Federal Democratic Republic of Ethiopia Constitution, [10] Federal Negarit Gazeta, (1995),Addis Ababa (Ar.34, 39, & 78) Ethiopian Criminal Justice Policy (2010). p.38. [11] Fisher S.Z. (1971). Traditional Criminal Procedure in [12] Ethiopia. HSU, Am. J. Comp. L. Vol. 19, p.709. GebreYntiso, et al (Eds), (2011) Customary Dispute [13] Resolution Mechanisms in Ethiopia. Addis Ababa. Grace Jennifer (2004). The Challenges of the Restorative [14] Justice process in Aboriginal communities through Social Economic and Political Perspectives. MA thesis, Carleton University, Ottawa, Ontario. p.4. Hadley Michael L. (2006). Spiritual foundations of [15] restorative justice, in Sullivan, D. and Tifft, L.(eds). Handbook of RJ a New Perspective. Harris Nathan and Maruna, Shadd (2006). Shame, [16] Shaming, and Restorative Justice: A critical appraisal, ‘in’ Dennis Sullivan and Larry Tifft, (eds). Handbook of RJ A Global Perspective p.452. Johan Griffins (1970). Ideology in criminal procedure or a [17] third “model” of the criminal process. The Yale Law Journal. Kellogg, R.F (1977). From Retribution to “Desert” The [18] Evolution of Criminal Punishment. George Washington University. American Society of Criminology, p.3. Louw Dirk J. (2006). The African Concept of Ubuntu and [19] Restorative Justice, ‘in’ Sullivan, D. and Tifft, L. (eds), Handbook of Restorative Justice: A Global Perspective. p.161. Macfarlane. J.,(2007).Working Towards Restorative Justice [20] in Ethiopia: Integrating Traditional Conflict Resolution Systems with the Formal Legal System. Cardozo J. Vol. 8:487. Malan Jannie, Indigenous Dispute Resolution and [21] Reconciliation: Past, Present, and Future, University of Botswana. p.13. Mark M. Lanier and Stuart. Henry (2004). Essential [22] Criminology, 2nd (eds), Westview, USA. McAuliffe Padraig, (2013). Romanticization Versus [23] Integration? Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse. Goettingen Journal of International Law. pp. 41-86. McCold P. (2004). Paradigm Muddle: The Threat to [24] Restorative Justice Posed by Its Merger with Community Justice. Contemporary Justice ReviewVol. 7, No. 1.pp.13– 35. Murado Abdo (2009). Legal History and Tradition of [25] Teaching Material. Justice. Legal System Research Institute. p.220. Packer H. L (1964). Two models of the criminal process. [26] University of Pennsylvania law Review vol.113. Peter Talk (2005). Method of diversion used by the [27] prosecution service in the Netherland and other Western European countries. 135th International Senior seminar visiting Experts Paper. Resource Material Series. Presser Lois, (2004). Justice Here and Now: A Personal [28] Reflection on the Restorative and Community Justice Paradigms. Contemporary Justice Review Vol. 7 No.1. Taylor & Francis Ltd. pp.101–106. Proulx Craig (2005). Blending Justice: Interlegality and the [29] Incorporation of Aboriginal Justice into the Formal Canadian Justice System. Journal of Legal Pluralism. No.51. pp.79-110. Skoll Geoffrey R.(2009). Contemporary Criminology and [30] Criminal Justice Theory Evaluating Justice Systems in Capitalist Societies. Palgrave Macmillan. New York. Tuori Kaius (2010). Legal Pluralism and Modernization: [31] American Law Professors in Ethiopia and the Downfall of the Restatements of African Customary Law. University of Helsinki Faculty of Law, Legal Studies Research Paper Series. No 3. UN Handbook on Restorative Justice (2006). [32] United Nations Declaration on the Rights of Indigenous [33] Peoples No.61/295 (2007). Resolution adopted by the General Assembly. Published by UN 2008. Van Ness D & Karen Strong (2009). (4thed). H. Restoring [34] Justice: An Introduction to Restorative Justice. Von Hirsch A. (1990). The politics of “Just deserts”. School [35] of Criminal Justice. Rutgers University. New Jersey. Von Hirsch A, Ashworth, et al (2003). Specifying Aims and [36] Limits for Restorative Justice; A making amends ‘Model?. Hart Publishing. Oxford and Portland. p.21. Wheeldon, J., (2009). Finding common ground: restorative [37] justice and its theoretical construction(s,) George Mason University. Fairfax, Virginia, Contemporary Justice Review Vol. 12. No. 1, 91–100. Zehr, H, (2003). Little Book of Restorative Justice, [38] Pennsylvania. Good Books. p. 4. Zehr, H. (2005). (3rded). Changing Lenses: a new focus for [39] criminal justice. Scottsdale PA: Herald Press). p.177. Zvi D. Gabbay (2005). Justifying Restorative Justice: A [40] Theoretical Justification for the Use of Restorative Justice Practices. Journal of Dispute Resolution. Vol.2, p.349. 1. Introduction 2. Introduction to Indigenous Dispute Resolution Mechanisms as Restorative Justice 3. Integration of IDRM with the Criminal Justice System 4. Conclusions 5. Recommendations REFRENCES 
work_cklo7af33zg6ngmaswthnh5n2u	----	This is the post-print of Archer, A. 2014. Designing multimodal classrooms for social justice. Classroom Discourse. 5(1): 106-116. DOI: 10.1080/19463014.2013.859842. It is made available according to the terms of agreement between the author and the journal, and in accordance with UCT’s open access policy available: http://www.openuct.uct.ac.za/sites/default/files/UCTOpenAccessPolicy.pdf, for the purposes of research, teaching and private study. E-mail: Arlene.Archer@uct.ac.za 1 Designing multimodal classrooms for social justice Arlene Archer Writing Centre, Centre for Higher Education Development, University of Cape Town Abstract This paper explores the ways in which multimodal classroom discourse could inform a social justice agenda through broadening the base for representation in the classroom. It identifies some of the challenges and opportunities of designing multimodal classrooms in diverse and developing contexts, where there are vast differentials in terms of access to resources. It focuses on the ways in which multimodal classrooms could recognize a range of student resources, whilst at the same time enabling access to dominant forms. This includes access to the discourses and knowledges of official curricula, and formal methods of assessment, as well as the creation of dispositions towards meaning-making outside of the classroom. Formal education often closes down access to a range of semiotic resources and multimodal classrooms can potentially recover ‘recognition’ of these. This paper explores ways of designing multimodal classrooms for social justice in order to surface the range of students’ resources which are often not noticed or valued in formal educational settings. It proposes the following: the questioning of boundaries between domains, harnessing students’ representational resources, developing metalanguages for reflection, and creating less regulated classroom spaces. Key words Multimodality, access, recognition, social justice mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 2 Introduction This paper explores ways of designing multimodal classrooms for social justice, looking at examples from some South African classrooms. It showcases interventions in a range of disciplinary domains, including Pharmacology, Communication Studies, Civil Engineering, and English. The challenge is to facilitate recognition of students’ diverse resources, whilst at the same time enabling access to the content and discourses of official curricula and formal methods of assessment. Multimodal classrooms go beyond written and spoken language to overtly encourage classroom tasks that require multiple forms of representation, such as writing, image, speech, gesture and music. This paper argues that broader conceptions of semiotic resources and ways of communicating could allow for reconceptualising which textual practices count and for whom, thus highlighting relations of power, inequality and social boundaries. In South Africa, teachers and theorists drawing on multimodal approaches have tended to interrogate power differentials and social justice (Archer 2006; Harrop-Allin 2011; Newfield 2011; Stein 2008; Stein and Newfield 2006; Thesen 2001, 2007). Resources like local languages and indigenous knowledge practices were undervalued under the previous political regime, and many teachers and researchers have attempted to recognize a range of students’ resources which are often not valued in formal classroom settings, including cultural forms and knowledges. In educational contexts in South Africa there is still differential access to education and to resources such as textbooks, computers, teachers. The medium of instruction remains predominantly English. However, students have multiple language systems to draw on, and there is often a degree of fluidity and movement between languages and language varieties. In order to recognize the resources that marginalized South Africans have developed, it is necessary to focus on student agency in textual design. Recognition, agency and choice An approach that takes into account the full range of semiotic resources has the potential to make classrooms more democratic and inclusive. Such an approach could enable marginalized students’ histories, identities, languages and discourses to emerge through “broadening the base for representation” (Stein and Newfield 2006: 9). ‘Recognition’ of resources is an important feature of designing multimodal classrooms for social justice. ‘Recognition’ is about noticing resources in terms of some existing framework and integrating these in a range of contexts. The use of modes in classrooms is always “the effect of the work of culture, history and power in shaping materials into resources for meaning- mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 3 making” (Stein 2008, 122). So, recognition of resources also entails recognition of how power is operating in varying social practices. By resources, I mean both students’ resources, as well as semiotic resources, such as colour. People choose how to represent meaning from a range of possible options which are crucially shaped within a particular context. This may mean drawing on resources that were previously devalued and marginalized to the extent that they were deemed inappropriate in an educational setting. The meaning-maker can, however, choose to re-evaluate these resources, to assess their value for the immediate contexts and to select according to criteria, context and design. Recognition thus also entails self-reflexivity and the ability to understand this notion of semiotic choice. As an example of how choice operates, I will look at a student’s text that combines writing and information graphics. The example in figure 1 below is taken from a PhD thesis in medical virology in the Health Sciences. The aim of the PhD is to investigate the therapeutic role of two vaccinations (the ‘humanized recombinant vaccinia virus complement control protein’ (hrVCP) and the ‘vaccinia infected mammalian cell derived authentic VCP’) in Ischemia/Reperfusion (I/R) injury of the kidney in rats. The choice of information graphic and how to configure it is important in order to construct an argument in this particular context. In this graphic, the argument is that the injured and treated (VCP/hrVCP) group of rats recovered better than the injured and untreated (PBS) group. The confidence interval information, using the standard error of the mean (SEM) in the chart, allows for the comparison of the three groups. The three groups include the treated rats, untreated rats and the sham or control group which comprises rats which have not been injured or treated. The label on the horizontal axis is ‘groups’. The subjects, namely rats, are removed in this label, resulting in abstraction of the chart from a particular context, which is characteristic of scientific discourse. The student has chosen a bar chart with confidence intervals to represent his data. He could have chosen a table format, which would have impacted on the type of information it is possible to display. For instance, displaying the sample size would have been more likely in a table, whereas its absence in the bar chart is not so obvious. The chart comprises blue bars on a grey background which is the default design in Excel. There are a host of other design choices that the student could have made, such as using different colours, different spacing between bars, a more finely calibrated vertical axis for ease of comparison. However, the mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 4 bulky size and shape of the bar does give more visual weight to the argument than a single point would and the wide spacing between the bars creates a clear distinction between the different groups. Figure 1. Extract from a PhD thesis in Medical Virology in the Health Sciences As a counterpoint to these ‘safe’ representational choices, it is worth thinking about information graphics which are composed somewhat differently. By calling his book Information is Beautiful, McCandless (2009) draws overt attention to the ‘aesthetic’ potential of information graphics. There are design choices to be made here in terms of size, shape, colour, and composition in order to represent an argument to a particular audience in the most apt way. The representation in figure 2 is also a comparison. McCandless compares tons of carbon emitted annually and uses iconic shapes for comparison rather than rectangular ones. However, these shapes have not been scaled to size, indicating a rhetorical decision rather than a statistical one. Because the representation is organized in spatial rather than linear terms, one could tell many stories from the information, not necessarily in any particular order. However, by placing the tree in the upper left corner, the relationship of it to the other mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 5 Figure 2. Tonnes of carbon emitted annually (McCandless 2009, 26) Reproduced with permission from David McCandless (c) 2009. categories or objects is encouraged. The choice of items to compare (individual house, car, air travel and large human) reflects the argument which the author wishes to make, namely that individual and excessive consumption cause carbon emissions and have a harmful effect on the environment. Whilst recognizing that this information graphic is embedded in particular socio-political discourses and realized in journalistic genres, it is useful in mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 6 demonstrating a different kind of authorial agency and power-differential than the student- produced graphic. The representational choices made here may not be appropriate in an academic environment, whereas they may function well in the social domain where form and readability need not be as closely aligned. How and why people choose to represent from a range of options points to the notion of design; the process of giving shape to the interests of the sign-maker for an assumed audience using the available semiotic resources (Bezemer and Kress 2008: 174). These choices are always expressions of ideology and power – what choices were made and for what purposes? Multimodal classroom discourse as sign production, reception and transformation, can thus be understood as student’s active engagement with the semiotic resources available to them at a particular moment in a specific socio-cultural context (Kress 1997). Bearing this in mind, I will now focus on exploring some ways of designing multimodal classrooms for social justice, looking at examples from different educational sites in South Africa. The examples refer to a number of contexts in Higher Education and a High School poetry project, yet the principles could be applied to classrooms in other contexts, spanning different age ranges. Burring boundaries between domains. One way of creating more semiotically open classrooms is to set tasks that work across disciplines and defined domains of knowledge, as well as across a range of modes, media and genres. Bernstein (1996) points out that power is maintained and relayed through the creation of boundaries between practices, and it is often in ‘mixed’ forms where power is played out. Questioning or reinterpreting some standard generic conventions can signal an encounter of diverse knowledges and differently organized social worlds. An interesting example of this kind of blurring of boundaries between disciplinary, professional, private and public domains is a project in a fourth year pharmacology course (Weiss, forthcoming). In the project, students produce a pamphlet or other Health Promotion materials, get feedback from a patient and write a reflective critique on the process, including their design, content and ethical considerations. The aim is to enable medical students to learn how to adapt and personalize clinical information for individual patients from diverse educational, language, economic and socio-cultural backgrounds. Producing health promotion materials requires students to draw on resources from a range of domains, mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 7 including clinical environments which provide access to academic knowledge about disease as well as professional environments that construct ‘ways of being a doctor’. Weiss argues that a social semiotic analysis of the student-produced texts is useful to identify underlying assumptions (in this case, assumptions about sexual behaviour). Recognizing these assumptions is important in order to feed back into the design of the medical curriculum. She looks at how the student pamphlets on contraception construct views on reproductive responsibility, male-female relationships, doctor-patient relationships, disease, morality. This is done by pushing the boundaries of the pamphlet genre which is realized through images, layout, writing, as well as ‘interactivity’. For example, one pamphlet requires the reader to ‘unbuckle the belt’ in order to open the pamphlet, which has a tag on the front, ‘Ready for sex?’ These views on contraception often co-exist alongside contemporary discourses of the market place. The students thus draw on semiotic and discursive resources in professional, private and public domains for meaning-making. In the above project, recognition is linked to development and ‘transformed practice’ (New London Group 2000). Student resources are validated and are used to provide access to the professional discourses valued in academic educational contexts as well as the medical profession. Weiss argues that the process of ‘conscious design’ within a framework of social semiotics represents a way of developing patient-centered communication practices amongst medical students, as well as preparing the students for the challenges of a multicultural and socially diverse working environment. We can see that this multimodal classroom stresses the making and production of meaning, rather than the acquisition of received knowledge or critique of received knowledge. Fundamental to the notion of multimodality employed in a social justice agenda is the concept of transformation, that meaning-making does not so much involve use of a system, as the transformation of available resources. Harnessing students’ resources In designing multimodal classrooms for access and social justice, the discourse and knowledge of the discipline should be made available, whilst students’ resources are simultaneously utilized and validated. Projects are not simply springboards for students, but are a serious interrogation and utilization of students’ representational resources. This enables a shift in power relations in the classroom from top-down imposition to negotiation and discussion. Also, discursive and generic conventions are brought into focus in order to show mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 8 what kinds of social situations produce them, and what the meanings of these social situations are. Only resources which are visible can become available as elements in conscious design processes. In this way, different ways of thinking and practice in representation become available as resources for students and there is an expansion of the repertoire of resources in order to create semiotically open classrooms. This includes multilingualism, indigenous and local cultural and semiotic practices. Some of my own work explores ways of harnessing students’ resources in different disciplinary sites in Higher Education. I have looked at ways of establishing a dialogue between less regulated spaces in the curriculum and the texts that emerge from them, and the more regulated genres of the curriculum so that students’ representational resources can be utilized in innovative ways. An example of this is a Symbolic Object project in a first year Communication Course in an engineering foundation programme. In the project, students identify everyday objects that have symbolic meanings and examine these in a range of physical, cultural and communicational contexts. The aim of this pedagogical intervention was to use objects and symbolism in order to engage with questions of diversity and identity. Objects are seen as a way of eliciting student narratives, exploring dynamic and conflicting cultural practices, highlighting notions of change and focusing on recontextualization of meaning in new contexts (Archer 2007). The objects the students identified were often aspirational like a microwave in a community without electricity, and the steps at Jameson Hall, a popular place to hang out on our campus, but also the place where you graduate. Various religious objects were identified, and a number of animals, including a goat and the rituals around slaughtering. Many of these objects indexed change in one way or another, and highlighted shifts and contradictions in certain cultural practices. For instance, beer in South African society has different meanings for different contexts. According to the students, it highlights issues of generation, class, cultural groupings, economics and crime. In terms of generational aspects, traditional beer is not drunk by young people because it symbolises ‘manhood’. On the other hand, ‘modern’ beer is drunk more by young people. The students highlighted that beer drinking culture differs across groups in our society: Whites drink beer to celebrate something … Black people especially the Zulus, use beer (traditional beer) when they have feasts ... to communicate with their ancestors. mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 9 This example shows how a project like the Symbolic Object intervention could draw on students’ socio-cultural resources in order to raise questions around diversity and identity in the classroom. The students produced a short research project around these issues, drawing on multimodal semiotic resources to do so. By advocating a curriculum that sets up a dialogue with students’ resources in order to ‘harnesses’ them, I do not mean simply using these resources, but encouraging students to critically interrogate them. I have examined the ways in which the resources used in less regulated curriculum spaces can be utilized in more formal, high-stakes assessment curriculum tasks, and looked at how underlying systems of classification transfer across contexts, for instance from the ‘mythical’ to the ‘scientific’ where part-whole structures and transformative processes operate (See Archer 2010 for an argument that mystical knowledge may have the same function as science in particular communities, as both are about constructing relations between elements in the natural world). The notions of convention and change that a pedagogical intervention such as the Symbolic Object project raises are important to explore. ‘Change’ need not necessarily mean ‘loss’, but needs to be conceived of as additive. We need to be aware of and respect cultural norms and values, but at the same time, begin to look at these critically and with constructive lenses. Developing metalanguages of reflection In order to development an environment of recognition, it is useful to be able to theorize and understand resources using a metalanguage. A metalanguage can “identify and explain difference between texts, and relate these to the contexts of culture and situation in which they seem to work” (NLG 2000, 24). Metalanguages are thus important in achieving conscious awareness of the nature of the resources being used and for this reason, they can feed into assessment criteria. However, complex metalanguages can be daunting for many students and could hinder rather than enhance the learning experience. Thesen (2001) suggests that rather than propose an entirely new vocabulary and new ways of understanding the world, a metalanguage should serve as “an index of discourse – ways of verbalising what you know in relation to other ways of knowing” (143). In a study on technical drawing in a civil engineering diploma, Simpson (forthcoming) stages a two part argument involving metalanguage and access. He argues that the semiotic domain mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 10 of Civil Engineering drawing is particularly stable, and thus governed by sometimes invisible rules and conventions. Some students may be less familiar with these ‘taken-for-granted’ ways of drawing than others, which could disadvantage them in the classroom. Firstly, he identifies and makes explicit key resources which are used in drawing, including line thickness, line continuity, the type of lead used, conventions governing the representation of particular materials such as screed or concrete or stone. Secondly, he develops a way of talking about drawing in order to highlight the often unconscious norms and conventions that students become socialized into. This includes aspects like modality or the credibility of the drawing which he defines in terms of criterial partiality, composition, framing and abstraction. It also includes conventional practices such as labelling, dimensioning, framing and accuracy. Here, the metalanguage developed provides a way of making explicit the norms and conventions operating in the tightly regulated domain of engineering drawing. This may be useful in enabling student access into this domain. I have argued elsewhere (Archer 2012) that we need to expand the notion of a ‘metalanguage’ to that of ‘metaforms’. By ‘metaform’, I refer to a means of description and analysis that can work across modes. Although it is more common to use the written mode to reflect on the visual, it is possible for an image to reflect on another image or on writing (as in satirical cartoons and various kinds of culture jamming). Using these kinds of ‘metaforms’ for reflection in the classroom could ignite critical thought and dialogue. Teaching students how to do textual analysis can draw attention to social boundaries and inequality. Textual analysis enables access to understanding and debunking of dominant discourses, rather than seeing these as fixed and natural. Texts reflect and recycle different discourses. Some of these discourses may complement each other, and others may compete with each other or represent conflicting interests or ideologies. This is Bakhtin’s (1981) notion of dialogism, the recognition of the polyvocality of any sign. In culture jamming, for example, the tension between these competing discourses is foregrounded in order to pass critical commentary on a social issue. Multimodal classrooms can open up spaces for interrogating which texts are valued and why, thus highlighting relations of power. Creating less regulated curriculum spaces In designing multimodal classrooms for social justice, it is important to include less regulated spaces in order to increase students’ choices and allow scope for reflection. These include mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 11 physical as well as virtual spaces, such as online chats. In these spaces, students can experiment with multimodal representation, draw on a range of discourses and employ humour or irony. They can draw on primary discourses as well as secondary discourses to create metalanguages to make sense of the curriculum. By way of illustrating the power of these less regulated spaces, I will briefly look at a project which drew on African popular culture to revitalize the poetry curriculum at a High School in Soweto (Newfield and Maugedzo 2006). Newfield’s work on language and literacy and literature education in South Africa has combined multimodal classroom and textual practices with social justice education. The mainstream approach to the teaching and learning of poetry in South Africa is ‘analysis’. In this project, Newfield and Maugedzo shifted the curriculum focus from analysis to composition, which enabled the students to produce poetry in different ways – as a spoken form, as performance, and even as embroidered cloth. Changing the audience, meant the students could write poetry to friends, and, finally, even produce an alternative poetry anthology to the school anthology. It was the ‘freeing up’ of poetry in a low stakes informal environment using multimodal means that made this particular pedagogical intervention such a success. Here hegemonic language and pedagogic practices were challenged, whilst simultaneously providing access to dominant language practices. This example illustrates how less regulated curriculum spaces can enable students to draw on and experiment with a range of genres and modes. This can open up opportunities for exchange of cultural and personal knowledge, and create opportunities for students who may have been marginalized in the classroom to find a legitimate voice. Challenges in designing multimodal classrooms Although there are many instances of multimodal pedagogical interventions and research projects that have resulted in social change, I would also like to sound a cautionary note. For instance, when some student teachers at a South African university were asked how they would employ the ideas around multimodal pedagogies in the classroom, they evidenced confusion around underlying notions of culture. For instance, the following ‘learning outcomes’ were listed by one student teacher for an activity around symbolic objects in the classroom: • The learners will be able to use materials and objects to show how they have grown/changed. mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 12 • Learners will be able to identify different clothes for different cultures. These are very different orders of outcome revealing conflicting views on culture. The first outcome is about culture as change, and the second about culture as stasis. The notion of culture as static and not about change and flux was common amongst this group of student teachers and is reflected in the following statement: This classroom activity can be introduced by asking learners to tell us more about their cultures. They can also wear different cultural clothes on a certain day, to learn more about cultural differences. So that they can appreciate the diversity of culture. They can also bring different food used in their cultures. The tragedy of this proposed classroom activity is that it lapses into a crude multiculturalism where clothes and food signify ‘culture’ which is seen as having distinct boundaries. Even if student-teachers ostensibly talked of culture as a ‘resource’ (Thornton 1988), rather than as a ‘thing’, their thinking often lapsed into basic forms of compartmentalization, essentialism and stereotyping, which has proved to be so dangerous in our past history. I think what this exercise revealed to me is how carefully this subject matter needs to be handled in the classroom, and also, how deeply entrenched stereotypical thinking is in South African society which continues to be polarized. It is clear that simply including a range of modes and text types in the curriculum, does not necessarily enable student access. This kind of ‘mode determinism’ could lead to instrumentalism and the kind of crude multiculturalism demonstrated above. It is worth noting that the classroom is always multimodal. What I am proposing here is a broader social semiotic approach that sees modes in a particular way. I am not proposing that the use of different modes necessarily generates the ideological and epistemological shifts in the classroom. It is not the broadening out of modes that has these effects, but rather the deeper ideological issues that underpin their uses in these ways. Other challenges could include harnessing the energy and emotions that are sometimes unleashed in these kinds of less regulated spaces. For instance, in Stein’s (2008) Olifantsvlei Fresh Stories project the children gave horrifying accounts of violent incidents from the impoverished, politicized and violent environments in which they lived. Containing and framing those experiences is vital for students to process them both individually and collectively. This is important in terms of recognizing and harnessing students’ resources in order to ultimately produce critical and humane citizens. mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 13 Final comments This paper has reflected on ways of designing multimodal classrooms in relation to power and social justice. I have argued for the importance of this as there is still differential access to economic, educational and cultural resources in our society and institutional discursive practices in education can serve to exclude particular groups. My main argument is that we need to see recognition in relation to access in the broadest sense and not just access to existing norms. If we understand recognition as simply noticing or theorizing resources, this runs the risk of institutionalizing situated practice. While it is educationally sound to validate local practices and resources, access to dominant practices has to be provided at the same time (Janks 2000). Thinking of classroom discourse as socio-historically situated, draws attention to the contested nature of dominant conventions. Of particular interest in terms of social justice is the extent to which we can create unregulated spaces in order to enable a range of student resources to emerge, as well as the ways in which we can enable access to dominant forms in multimodal ways. Equally important, is the development and use of accessible metalanguages of “reflective generalization that describe the form, content and function of the discourses of practice” (New London Group 2000: 24) to enable students to discuss and critique texts across contexts. The interventions described in this paper acknowledge “learners as agentive, resourceful and creative meaning-makers” (Stein and Newfield 2006: 8). They place a strong emphasis on student ‘interest’ and agency. Classrooms which both draw on and validate students’ practices, resources and discourses are invaluable, as they enable students to interrogate their past situations and aspirations, to reflect on dominant norms and practices, whilst providing access to these at the same time. References Archer, A. 2012. Writing as design. Enabling access to academic discourse in a multimodal environment. South African Journal of Higher Education 26, 3: 411 – 421. Archer, A. 2010. Shamanism and Science: Reciprocal curriculum as transformative. Education as Change. 14, 1. 61 – 75. mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 14 Archer, A. 2007. ‘No goats in the mother city’: Using Symbolic Objects to help students talk about diversity and change. English in Education 41, 1: 7 – 20. Archer, A. 2006. A multimodal approach to academic ‘literacies’: problematizing the visual/verbal divide. Language and Education 20, 6: 449 – 462. Bakhtin, M. 1981. Discourse in the novel. (M. Holquist ed. and trans). The Dialogic Imagination. Four Essays by M. Bakhtin. Austin: University of Texas Press. Bernstein, B. 1996. Pedagogy, Symbolic Control and Identity. Theory, Research, Critique. London: Taylor and Francis. Bezemer, J. and Kress, G. 2008. Writing in multimodal texts. A social semiotic account of designs for learning. Written Communication 25, 2: 166 – 195. Harrop-Allin, S. 2011. Playing with Barbie: exploring South African township children’s games as resources for pedagogy. In L. Green. (ed.) Learning, Teaching and Musical Identity: Voices across Cultures. Bloomington: University of Indiana Press. 156 – 169. Janks, H. 2000. Domination, access, diversity and design: a synthesis for Critical Literacy education. Educational Review 52, 2: 175 – 186. McCandless, D. 2009. Information is Beautiful. London: Collins. Newfield, D. 2011. Multimodality, social justice and becoming a really South African democracy: case studies from language classrooms. In Social Justice Language Teacher Education, ed. M. Hawkins. 23 – 48. Bristol, UK: Multilingual Matters. 23 – 48. Newfield, D. and Maungedzo, R. 2006. Moblising and Modalising Poetry in a Soweto Classroom. English Studies in Africa 49, 1: 71-93. mailto:Arlene.Archer@uct.ac.za E-mail: Arlene.Archer@uct.ac.za 15 New London Group. 2000. A Pedagogy of Multiliteracies: Designing Social Futures. In Multiliteracies. Literacy Learning and the Design of Social Futures, eds B. Cope and M. Kalantzis. London and New York: Routledge. Simpson, Z. (forthcoming) Resources, representation and regulation in Civil Engineering Drawing: An autoethnographic perspective. In Multimodal approaches to research and pedagogy: Recognition, resources and access, eds. A. Archer and D. Newfield. Routledge. Stein, P. 2008. Multimodal pedagogies in diverse classrooms, representation, right and resources. London, New York: Routledge. Stein, P. and Newfield, D. 2006. Multiliteracies and Multimodality in English in Education in Africa: Mapping the Terrain. English Studies in Africa 49. 1: 1 – 22. Thesen, L. 2001. Modes, Literacies and Power: A University Case Study. In Language and Education 14, 2 and 3. 132 – 145. Thesen, L. 2007. Breaking the frame: lectures, ritual and academic literacies. Journal of Applied Linguistics 4, 1: 33 – 53. Thornton, R. 1988. Culture: A contemporary definition. In The Uses and Abuses of Political Concepts, eds. E. Boonzaier and J. Sharp. Cape Town and Johannesburg: David Phillip. Weiss, R. (forthcoming). Multimodality and Medicine. In Multimodal approaches to research and pedagogy: Recognition, resources and access, eds. A. Archer and D. Newfield. Routledge. mailto:Arlene.Archer@uct.ac.za 
work_cl7y7fwdzzhormjhvogvhrlp3i	----	1 Buridan and the Circumstances of Justice (on the Implications of the Rational Unsolvability of Certain Co-ordination Problems) 1 Duncan MacIntosh, Dalhousie University Published as: Duncan MacIntosh, "Buridan and the Circumstances of Justice (On the Implications of the Rational Unsolvability of Certain Co-ordination Problems)", Pacific Philosophical Quarterly, Vol. 73, No. 2 (1992), pp. 150-173. Introduction Many problems of rationality and morality involve agents in a partial conflict of interest: one agent can do well only if another does poorly. The paradigm is the Prisoner's Dilemma (PD). Some commentators think it rational for PD agents to compromise, agreeing to voluntarily so co-ordinate their choices that each will do fairly well, better than if each straightforwardly pursued his individual interest. Thus David Gauthier thinks that PD agents should conditionally dispose themselves to co-operate and then co-operate with the like-disposed. But as Howard Sobel points out 2 , in some PDs it seems impossible, directly anyway, to voluntarily comply with a compromise strategy because some of these strategies do not specify each agent's behavioral obligations. The strategy may require each agent to do something 50% of the time, for instance, but not say what each is to do this time. Sobel suggests, then, that voluntarily pursuing a compromise strategy would not always be an available alternative to say, Hobbesian Leviathan solutions, where the agents ally with a state which would then dictate actions to each agent and enforce the edict. 3 I here defend Gauthier's proposal from this worry, showing how it can be rational for the agents to use randomizers to make their behavioral obligations determinate. 4 But I then consider a deeper problem for both Gauthian and Hobbesian solutions. Both in effect reduce partial conflicts (PDs) to non-conflictual co-ordination problems (CPs). It is widely thought that rational agents can solve CPs simply by choosing by mutual fiat one among several optimizing co-ordinated patterns of choice. The only exceptions are supposed to be when the agents can't communicate, or lack certain common knowledge. Then, their only hope is that a "salient" will cause a non-rational solution. But I prove that some CPs are rationally unsolvable even absent circumstantial or informational impediments to agreement on a solution. Here, the problem is not circumstances, but rationality: As normally understood it cannot guarantee co-operative solutions to CPs or PDs, and many precepts of contractarian moral rationalism must therefore be false. I suggest some re-conceptions of rationality to alleviate some of these difficulties, but even with rationality so amended, whether rational co-operation and morality is possible is often a matter of sheer luck, not rational choice; and even such rational solutions as are possible depend on non-rational accidents. This first part of this paper expounds Gauthier's theories; the second, a modification Sobel thinks necessary to keep them general. The third discusses some of Sobel's 2 supposed counter-examples to the generality of Gauthier's claims about co-operation. The last considers possibly irresolvable problems for the implementation of both Gauthian and Hobbesian systems. The larger issue is just what sorts of joint arrangements for mutually advantageous behavior rational agents can make simply by rational voluntary agreement. Resolving this question requires a new conception of the rationality of both individuals and groups. And it requires us to understand differently the rational foundations for morality as conceived by contractarian moral rationalists, who think morality is derivable from rationality (as explicated in the formal sciences of decision and game theory). I Gauthier 5 Gauthier aimed to resolve an apparent conflict between rationality and morality. To be rational is to maximize one's individual expected utility, to be moral, to refrain from maximizing. So how can it be rational to be moral? Gauthier took this apparent conflict to be modeled in the one-shot PD: Each agent prefers in descending order, unilateral confession, mutual non-confession, mutual confession, unilateral non-confession. If one agent confesses, depending on what the other agent does, the first agent's best outcome is his first best, his worst, his third; if the first agent doesn't confess, his best outcome is his second, his worst, his fourth. If his actions are causally independent of the other's, no matter what the other does, the first does better (maximizes by) confessing; so if he is rational, he will confess. Ditto for the other agent. But if both confess, each achieves only his third best outcome; if only each had refrained, each would have obtained his second best. Gauthier thinks this represents the structure of circumstances of justice, of choice problems creating moral issues and admitting moral resolutions. Moral issues are partial conflicts of interests, moral resolutions, socially optimal, mutually advantageous solutions to those conflicts. Here the agents are conflicted because neither can get his best outcome without the other getting his worst. The non-moral solution is for each to seek his maximal individual advantage, the moral one, for both to seek their joint optimal mutual advantage. This is for both to adhere to a moral rule. In a standard PD that would be: Do not confess. The defining property of moral rules: Each individual is better off if all comply with them than if all deviate, but better off still if he deviates whether or not others comply. If complying is "co-operating," deviating, "defecting," the original problem of how it can be rational to be moral is: How can it be rational to co-operate when it is individually more advantageous to defect? Gauthier observed that while each agent has a powerful incentive to defect (confess), each, to avoid the disaster of mutual defection, has a more powerful incentive to arrange that all agents co-operate (obey the rule of non-confession). Each would prefer such arrangements even should they secure his own co-operation. But because of the ever- present temptation each has to defect, Hobbes thought the only efficacious such arrangement would be a state, an external force penalizing defectors. Each agent would then refrain from defecting to avoid the penalties, which make it maximizing and so straightforwardly rational to co-operate. 3 But Gauthier thinks the conflict can be resolved without the costs and coercions of the state. For he thinks agents can rationally adopt dispositions constraining them from always performing individually maximizing actions, and that an action is rational if it expresses a disposition it was rational to adopt. When facing a PD, it is most advantageous for the agent to have whatever disposition will most likely induce others to co-operate while yet allowing him to defect as much as possible. Given perfect information, this is the one which disposes one to co-operation just where, did it not, one would probably be defected against, but since it does, provokes another to co-operate, otherwise allowing one to defect. It is thus the maximizing and so rational disposition to adopt. In choosing from this disposition one will co-operate whenever one meets a similar agent, otherwise defect. Such agents are conditional co-operators or "Constrained Maximizers" (CMers), conditional because their dispositions induce them to co-operate only with the like disposed; constrained because their dispositions sometimes prevent them from performing individually maximizing actions (from "straightforwardly maximizing"--"SMing"--and so from always defecting), and instead sometimes make them perform jointly optimizing actions. To adopt such a disposition is to adopt a strategy for making further choices, a "joint strategy," i.e., a way of choosing where one performs a certain action expecting it to be part of a certain outcome whose other part is to be a certain action of another agent. (To straightforwardly maximize--to "SM"--is to follow an "individual strategy", one where one performs a certain action regardless of what action the other agent is expected to perform.) To act co-operatively is to act as required by a joint co-operative strategy. In general, a CMer is disposed to co-operate (to base his actions on some joint strategy or practice) and will co-operate, (a) where everyone's co-operating (i.e., everyone's complying with this strategy) yields him no less utility than everyone's defecting, (b) where his share of the benefits of co-operation are at least fair to him by minimax standards 6 , and (c) where, because others are similarly disposed, his expected utility from his co-operating is higher than from everyone defecting (i.e., using individual strategies). 7 Absent (a), there is no point to adopting a CM disposition. Absent (b), one could do better by holding out until others concede to one one's fair share. Absent (c), to co- operate would be to have been suckered, for there was no guarantee others would reciprocate. 8 In general then, Gauthier thinks that in the circumstances of justice, each agent should "internalize a principle of action, that, followed by everyone, leads to an outcome that is both optimal and fair, in receiving the voluntary agreement of all," and that each should co-operate from that disposition with others like disposed. 9 II Some Possible Worries Sobel thinks it false that a rational agent will co-operate (i.e., do his part in an optimality- producing joint strategy of choice) whenever (a)-(c) are satisfied. 10 For it may be that while there is a rule (or strategy) everyone's complying with which would optimize were there a clear way to comply with it, the rule is not, by itself, specific about each agent's behavioral obligations. E.g., imagine I always prefer going to the movies with you first, going alone second; you always prefer going to the library with me first, alone second. 11 4 We can't both always get our first choice. But we can do better than always going out alone by splitting the difference, each of us netting a utility intermediate between us always getting our first or second best outcomes. Each of us would be crazy to yield to the other's first choice or to demand that he do the same, more than half the time. But it is maximizing for us each to conditionally commit to the optimizing joint strategy of going to the movies together half the evenings, the library the other half. Fine. We each so commit. But where should we go tonight? The optimizing rule does not say. Since it prescribes no action to either of us, we can not co-operate. We need a randomizing process. Perhaps we can flip a coin, agreeing to abide by the result. 12 Or perhaps we can go to an official coin-flipper. 13 The lesson Sobel draws 14 : a rational CMer should co- operate only given (a)-(c) and, (d) where either the joint strategy itself imposes determinate obligations on each, or does so when "partially implemented" (i.e., when it is decided for each agent how he should act, in the case at hand) by a randomizing process actually performed. Otherwise, each agent should individually SM (i.e., defect), since there is nothing he can do to act on the joint strategy. We can distinguish 15 between individual pure strategies (e.g., where an agent confesses no matter what), individual mixed strategies (e.g., where an agent confesses 50% of the time), joint pure strategies (e.g., where the agents co-ordinate, each always non-confessing), and joint mixed strategies (e.g., where the agents co-ordinate, simultaneously non-confessing 50% of the time). The trouble is that mixed strategies may not dictate actions except when "partially implemented," i.e., when how to choose has been referred to a lottery actually performed. We will consider now two possible counter-examples to Gauthier's theses. In the first, absent an authoritative randomizer there is no dictated action and so even those committed to a joint strategy will defect. In the second, agents are committed to a joint strategy, but one the implementation of which for each agent (again, absent a lottery) depends on what the other will probably do. But then neither can individually decide what to do, so neither will co-operate. III The Cases Case 1 Sobel offers the following "stretched-PD" as a prima face counter-example to Gauthier's claim that rational CMers will co-operate in all PDs. 16 Here, each agent prefers unilateral confession (in which he gets 100 utiles), mutual non-confession (3 utiles), mutual confession (2), unilateral non-confession (1). The "stretch" is in the wild pay-off difference between unilateral confession and all other outcomes. This makes the expected utility of taking a chance on achieving unilateral confession higher than for arranging joint non-confession; it makes it rational for each agent to conditionally commit to a joint mixed rather than pure strategy. For each has a minimax claim to 50.5 expected utilities (half of the total utilities produced by failing at unilateral confession and achieving only unilateral non-confession, plus half of those produced by succeeding at unilateral confession). The pure joint strategy of mutual non-confession only gets each agent 3 5 utiles, far from their minimax. Thus, by (b), neither will commit to it. Each can only get his minimax by both agents choosing by a joint mixed strategy which uses a single randomizer dictating each agent's choice, i.e., a joint randomizer dictating confession to each agent 50% of the time (or confession on a given occasion with a 50% chance). But suppose there is no randomizer. Without one, committing to that co-operative strategy underdetermines the co-operative action each should perform in nature. Thus each CMer should confess--by (d)--whatever the other may do. Thus even CMers will not always "co-operate" in nature, nor always produce optimal and fair outcomes, contra-Gauthier. Thus, he cannot, as he would like to, give alternative solutions to all of Hobbes'. In nature, and absent an authoritative randomizer, there may be no determinate co-operative choice for a joint strategy; so even CMers should sometimes defect. Reply It seems initially that we can make short work of these worries. First, while to co-operate we must sometimes use a lottery, the incentive to co-operate also rationalizes us in using one to implement co-operation. Thus even if there is now no authoritative lottery, it would be rational, for all we have seen so far, for us simply to agree on a lottery method, to run it, and to abide by its result. Second, this is not us jointly allying with a Hobbesian Leviathan, since, by hypothesis, the lottery is costless and we do not need anyone to enforce compliance with it. For were it rational to co-operate simpliciter, other things equal that would still be rational where it consists in acting per the lottery. Third, if by "nature" we mean "no co-ordination," then of course we cannot there co- ordinate. But Gauthier never thought we would. He is trying to rationalize us moving out of a state of nature in which we individually SM, into a situation where we co-ordinate, optimizing conjointly under voluntary mutual constraints. Fourth, if we cannot find or agree on a joint lottery process, the rational alternative is not SMing and mutual defection. For we might each have our own lottery devices, and even if we can't agree to jointly abide by either, we might still be able to agree to individually abide by our personal lotteries. 17 We could each resolve that instead of always confessing, we will each flip a coin to decide whether to confess provided the other is also conditionally disposed to choose using his coin. We will then each confess 50% of the time, achieving unilateral confession (and each other outcome) 25% of the time. This gives us each an expected utility for following the joint strategy of us each following the individual strategy of choosing by our individual lotteries of 26.5 (the sum of 25% of the utilities of each possible outcome). This is still a joint strategy, following it is a kind of co-operation, and resorting to it is not resorting to a Leviathan. Fifth, if neither joint nor individual lotteries are available it is still not rational for us to SM. For we would each still do better conditionally committing to acting from the disposition to comply with the strategy of jointly non-confessing with a like-committed agent. And that is still a joint strategy, acting on it still a kind of co-operation. Sixth, while it might be objected that Gauthier cannot accept any of these alternatives because none have an expected utility near the original minimax of 50.5, I think he could 6 accept all of them in their circumstances. For what the minimax point is surely depends on what options there are. If there is no way of achieving a minimax of 50.5 in the circumstances, it is not there the minimax. Rather, the minimax is whatever optimum circumstances permit. E.g., were there a machine which would furnish us each with all that we desire if we each gave it all that we have, our minimax would be all that we want. But absent such a machine it is absurd to say that in our present circumstances the minimax is "all that we want." So if circumstances permit a joint lottery the minimax is 50.5; if only individual lotteries, 26.5; if neither, 3. If no co-operative strategy is available, the question is moot. 18 Lessons: First, use of lotteries is, where possible, rational if needed for co-operation. Second, it is not necessarily recourse to a state. Third, many joint strategies, pure and mixed, count as co-operation. We have not shown a PD has no co-operative solution until we have shown none work. Fourth, what counts as the optimal and fair solution to a PD depends on what the circumstances afford to resolve it. Case 2 In Sobel's next case 19 , there is no mutual advantage to the agents so co-ordinating as that one agent does what the other does not. There is mutual advantage to each doing the same, but differential advantage to each depending on which of two possible same-type actions are performed. An example would be a PD where one agent's preferences would have him get 3 utiles if both non-confess, 2 if both confess, 0 from everything else; the other agent, 3 from if both confess, 2 if both non-confess, otherwise 0: one agent gets more utility if both non-confess, the other, if both confess. Thus they differ on which joint solution they favor--both confessing or both non-confessing--though each favors either over individual strategies. Reply This case presents several difficulties. First, while CMers would commit to either each of them confessing or each not, that commitment does not say which action each should perform; should each confess, or each not? And neither can act on the joint strategy until this is settled. Without a lottery it seems then that they cannot implement the joint strategy, so neither agent can act co-operatively. (Couldn't either agent provoke the other to do his part in the strategy most favored by the first agent by the first agent doing his part in his favorite strategy first? For then the second agent always does better going along with the first agent's preemptive move than not. Better that both do the same thing, even if one agent has usurped the prerogative of deciding what it will be. Unfortunately, if both think this way, as they must if both are rational and if it is the rational way to think, each will race to make his favorite choice, attempting to force it on the other, the result, a failure of co-ordination. Since both agents are presumed to be well-informed and rational, both would see this and its consequences, and both will pause and attempt to arrange non-preemptive co-ordination.) Even were both agents committed to a joint strategy, to choosing like each other, and even if they sought to resolve the dilemma 7 without a lottery, by fiat, neither agent could rationally decide how to choose unless he knew how the other was likely to choose. Since nothing makes it more rational to choose one way over the other for either agent, neither can ever make a rational choice. But a lottery would clearly resolve this. And since a lottery would be instrumental to a strategy to which it is maximizing to commit, everything equal it would be maximizing and so rational to commit to compliance with a lottery. But there is a differential advantage to the agents in the outcome of the lottery. Thus if it says both must confess, the second agent gets one more utile than if both don't confess and vice versa. What is the minimax? How can a joint strategy attain it? Ideally the agents would commit to splitting the advantage, their minimax an even split. Were that impossible, there is still no problem, for the initial randomization of behaviors distributes the advantage, equalizing expected utilities, and while one agent must gain more actual utility, the other cannot object. For there is no other available more fair procedure, each had equal chance at the advantage, and without this process the "looser" does even worse. But what if no joint randomizer is available? Then there can't be co-ordination. (Well, not quite. Suppose that, though the agents had no agreed joint randomizer, they each had individual randomizers. It would advantage each agent to conditionally commit to the joint strategy of each agent choosing whether to confess or non-confess by each using his individual randomizer, for then they at least have a 50% chance of attaining one of the equilibrium outcomes, and each agent has a 25% chance of attaining his most preferred outcome. While if each simply followed the individual strategy of choosing his half of his most preferred outcome, each would have no chance of attaining either equilibrium outcome. But of course, it could well happen that neither equilibrium results in the outcome produced by these individual randomizations. In any case, let us stipulate that the agents also lack individual randomizers.) But then neither would Gauthier think there ought to be co-operation (i.e., successful co-ordination in producing one of the equilibrium outcomes). For here (a) and (c) are not satisfied: No (available) joint strategies would maximize if agents chose on their basis over SMing; no action is advantageous over the one the SMer would perform were all others SMers. So Gauthier need not solve this case any more than he must solve PDs where agents are not given pre- interactive information on each others' dispositions, nor a pre-interactive chance to amend them. It is not a circumstance of justice; unsurprising, for a crucial requisite to its being one--a joint randomizer or individual randomizers--is stipulated unavailable. It is not the game's pay-off structure which prevents it from being a circumstance of justice, but that absent a lottery (or lotteries), even with the best will in the world the agents cannot attain an equilibrium outcome, cannot choose expecting a minimax higher than for individual strategies. But is Hobbesianism superior here? One might think so. For Hobbes might tell us to ally with a Leviathan who would then impose a solution. The Leviathan might use a lottery available only to Him to decide whether to impose confession or non-confession, and if we knew this, it would individually maximize for us each to conditionally commit to gambling with the Leviathan. Or He might simply have an arbitrary, secret policy of enforcing, say, non-confession. It would, again, advantage each of us to take a gamble and ally ourselves with Him over us SMing no matter what his policy, even though, one 8 of us will be marginally disadvantaged by it, whichever it is. (His policy must be secret; otherwise, if it is a condition of His existing as a Leviathan that we both ally with Him, the agent who knew himself to be marginally disadvantaged by the Leviathan's policy would have a stake in holding out, breaking the deal. Nothing would rationally compel his acquiescence in the Leviathan's solution if his preferred solution could still be attained by the other agent's agreeing to go along with it. Rather, the old problem returns: should the agents go with joint confession or joint non-confession? But now the problem takes this form: should they go with the Leviathan's policy or make their own pact?) 20 But this is not really a fair alternative to Gauthian solutions. For one thing, just as the Leviathan may have an arbitrary policy, so might one of us (one either hard-wired or involving an additional preference). Oddly, it would be to our mutual advantage if one of us was known to be incapable of acting in any way other than the way that would involve compliance with the strategy favoring him. Paradoxically, sometimes incorrigible obstinacy enables agreement, co-ordination and compromise. For it would advantage us to agree to abide by the arbitrary policy one of us has so as to avoid the overhead costs and coercions of Leviathans. Our private commitment need not consist in accepting a state; for there need be no exogenous penalty for defection, nor any additional cost to the solution. 21 Of course, had we each a policy bias we could make no progress: who should (could?) concede? But this brings me to the other thing. To present Leviathan solutions with a problem truly parallel to the one we posed for Gauthier, we must imagine there being two (or two possible) Leviathans, one, known to enforce confession, the other, non-confession. It is mutually advantageous for us to each commit to the same Leviathan, but which? It is not uniquely rational for us to both make a Hobbesian side-bet with either; each of us would favor joint alliance with a different Leviathan. Indeed, before we can rationally co-ordinate on a choice, we still need a joint randomizer to choose. Hopefully a third Leviathan would randomize to decide which policy to enforce, in which case our individual expected utilities would be highest allying with him compared to SMing. (Each of us would prefer us to ally with the Leviathan whose policy is known to favor us, but neither of us can rationally expect the other to accept this over gambling with the randomizing Leviathan.) So even if Gauthier can't give a co-operative solution here (because of the unavailability of a joint randomizer), neither could Hobbes give his political one. This proves that recourse to an authoritative lottery need not be recourse to a state. For in attempting a Hobbesian solution to some PDs in nature, we must use an agreed-to-be- authoritative joint randomizer to launch it. We cannot rationally decide to which Leviathan to commit without one, or unless one of Them has one. And what makes one randomizer authoritative is not that a Leviathan enforces the results of His randomizer, but that we rationally acquiesce in taking His to be authoritative. Thus the randomizer is a device for getting from nature to a state. It must thus be available in nature, not only as an alternative to the decision-making processes available in nature. 22 Thus the requisites for rational joint alliance to a Leviathan resemble those for rational joint commitment to a strategy for further voluntary choices. At least one of two possible requisites must be available. One is that of a joint randomizer. The Leviathan must be disposed to use one to decide His policy if we are to rationally ally with Him; the 9 contracting agents must use one to implement joint strategies for further choices. If one is unavailable, the requisite is that there be only one available mutually advantageous policy--the Leviathan must have (a secret) one; or, in a Gauthier solution, exactly one of the agents must have one (one which he cannot but insist on, forcing the other agent's acquiescence). This is unsurprising, for Gauthier's solution to PDs was to be like Hobbes' in two ways: First, the agents each choose it for individual advantage. Second, when the agents severally choose it, optimality is the by-product. But Gauthier's solution needs no coercive and costly enforcement. It can offer moral (and rationally attractive) solutions to more conflicts than could Hobbes', for in being cheaper it will more frequently surpass individual strategies in expected utility. But there are deeper problems here.... IV The Rational Unsolvability of Co-ordination Problems in Mixed Joint Strategies; Reflections On Luck There is a deep issue near the first two cases, most clearly near the second: Is it always in principle possible for agents to rationally adopt a lottery whenever one is needed to implement any rational joint strategy? I have so far treated these cases as unproblematic because it seemed obvious Gauthier's principles would naturally direct agents to lottery solutions to CPs, and that only some unfounded stipulation would make that option unavailable. But if there are systematic difficulties with adopting lottery solutions, these cases become surprising counter-examples to the scope of Gauthier's claims concerning the rationality of co-operation in PDs. Moreover, if this does not plague Hobbesian solutions, Gauthier would have failed to offer a lower-cost alternative to all of them. This worry is not much developed in the literature. While it is unclear exactly how authoritative joint randomization is to be undertaken, it is often assumed that it can, perhaps, be done by the agents' mutual fiat. But I will now argue that it cannot always be done in this or any way. Ideal PD agents would see the advantage in deciding their choices by a joint lottery; also in jointly baptizing one of the many possible lottery methods as authoritative if none are already forced on them by a state or by there being but one lottery method available in nature (in which case they would so baptize it); also that if several methods are available, it would optimize for them both to commit to one; also for someone to run it. Still, some vital questions remain unanswered 23 : If several lottery methods are available in nature, how are agents to rationally and jointly choose one as authoritative, and to decide who shall run it? The rational mandate to use one does not say which one to use, nor who should run it. If these problems have no determinate solution the co-operative strategy cannot be (rationally) implemented, and, where only a joint mixed strategy beats individual SMing (as in Case 2), no co-operative solution is possible. I see no way to solve these problems in the standard conception of rationality. Should we flip a coin to decide which randomizing process to use as authoritative (e.g., a further coin-toss, or some natural, random phenomenon), then flip again to decide who shall run it? But this initiates a vicious regress since presumably we need yet more lotteries to decide which one shall determine the authoritative one and which to use in determining who shall run the one for determining who shall run the authoritative one, etc. Hopeless. 10 Maybe one of us should just volunteer. Fine, but who? It doesn't matter. Then how are we to decide? Just do it. What if we both propose to just do it? One must yield. Who? It doesn't matter. Right, so who? OK, the agents should take the first available method; the agent closest to it should run it. But why? And what if two methods turn up simultaneously, or if the agents are equi-distant to the single method, etc.? 24 If we are lucky, only one process will be available (or the others will be costlier), and only one of us will be able to run it (or the cost of the other doing so will be prohibitive). Since it would optimize for one process to be run by one of us, and since there is only one possible (or cost-effective) process and one possible (or cost-effective) operator, it would maximize for him to operate it: For he cannot have the benefits of co-operation unless he does so, while by doing so, he can unilaterally save himself from mutual defection (this incidentally benefitting his partner). That is, it would maximize for him to unilaterally commit to the strategy of implementing the lottery process necessary to implementing the joint strategy (providing this is not more costly than his benefits in having it implemented). And it would maximize for the other agent to conditionally acknowledge this lottery as authoritative, and to conditionally commit to complying with it. We might reflect here that while this problem is vexing, requiring the non-rational good fortune of a paucity of methods of co-ordination to facilitate implementation of the co-operative strategy, that we now face this problem betokens tremendous progress: We have reduced a PD to a mere CP. We now see the advantage in co-ordinating and no longer see ourselves as conflicted. But there is still the CP, every reason to think some CPs are rationally intractable. For while we do not care which lottery method we use (if they are costless or equally costful), nor who runs it (if that is costless or equally costful for both of us), this is just what makes it impossible for us to rationally choose here; and baring happy accidents limiting our options to one, it seems we cannot (rationally) resolve these difficulties. We will then, wherever an optimal joint pure strategy is also unavailable (e.g., in Case 2), be unable to co-operate. 25 IV.1 Rationality and Equal Options What prevents a solution is that the agents' indifference between methods means they can't choose one. But doesn't this presuppose that an agent cannot rationally choose between A and B unless he prefers one to the other; that two agents cannot jointly choose between A and B unless both prefer the same? But surely in choosing between good A or good B and bad C, an agent who prefers A or B to C and who chooses A or chooses B-- no matter how--chooses rationally. He is rational if he chooses A over C, or B over C, and is at worst non-rational, not irrational, in choosing A over B or B over A. So an action is rational if there is at least one true description of it on which it is prima face rational (or better, at least one partitioning of options where a choice between them is rational), as here. Further, since nearly every possible action must contain components from options between which the agent is preference-indifferent (e.g., the exact shape of the letters he uses in signing a check), beings capable of ordinary actions must have things like deterministic or randomizing choice tendencies to "fill in the details" of rationally preferred actions and enabling choices between equal options. 26 So it would be 11 absurd to call an action irrational simply because, perforce, it involves non-rational choices in its details. So "choosing" a lottery method is not irrational just for involving these. But can someone be said to choose an option he does not prefer over all others? For then he doesn't choose it in the sense that it comes to be his by a preference that only it be his. It just somehow comes to affect his behavior or utility, which seems to be something that merely happens, not that he makes happen. But let us be liberal: an individual has chosen an option just if (1) it affects his subsequent behavior (or utility) because he preferred it over all others (i.e., it is "preference rational"), or (2) it does so partly because he preferred it or other options over some he dispreferred and partly because of some non-rational process (i.e., it is "process rational"). Thus a rational action is not just a preference-expressing or satisfaction-maximizing one. Rationality is dirtier: to maximize one must often first, or componently, be able to choose among equal options. Rational choices are constrained but not fully determined by preferences and beliefs. But does granting any of this about rational agents make any difference to whether they can co-ordinate out of nature? Suppose it would advantage two such agents to co- ordinate their choices by any of many available further methods of joint choice, but that each is indifferent about which to use. Can they always in principle choose one? Obviously not by mere preference. Can they with their several individual further choice processes? Only on one of four conditions: (i) By co-incidence these processes are the same in kind and so would always choose the same options. (ii) While they are different, one always automatically acquiesces in the other's choice, the other always actively chooses; their processes are complementary. (iii) By a chain of choices involving individual processes and preferences (e.g., a series of "binary sorts"), their further processes could be made the same or (iv) complementary, for any case. Conditions (iii) and (iv) are just special cases of (i) and (ii) respectively, and (ii) is functionally just a special case of (i). There are only two possible ways for (i) to be implemented: by deterministic or randomizing processes of further choice. Suppose both agents have deterministic ones. They may try to agree on which lottery method to use in choosing their actions in a PD by individually applying their processes in a series of binary choices between all available methods. Assume there are finitely many. Assume each agent arrives at a single method. If they still differ they need only agree on which of the two remaining ones to use. Now their individual processes, in individually choosing among these two, will either choose the same method or not. If the same, they can use it to solve their CP; if not, they cannot solve it. Since the former is not guaranteed, they may be unable to solve it. Consider now agents each with randomizing processes of further choice. They individually choose as before, each arriving at a method. Now they only need agree on one of these if they still differ. Can they? If they each have a randomizing process that selects a given option in a choice between two with a 50% probability (though any non- zero probability would be helpful), then on their first attempt at agreeing, they have a 25% chance of succeeding. (Success is each of their processes voting yes for a method; thus on any try, there are 4 possibilities, yes/yes, yes/no, no/no, no/yes, the chances of yes/yes, 1/4.) By every successive attempt they have an ever higher chance of having 12 agreed. Were this series finitely convergent, they would be guaranteed to agree in finite time (if each try takes only finite time). Unfortunately, the series only asymptotically approaches unity. So while they are guaranteed consensus in infinite time, there is no guarantee they can solve their CP by any given time. Since every possible choice process is one of these two, and since neither is guaranteed to solve their CP in finite time (all that they ever have), no method is guaranteed. Since they could only rationally co-ordinate if they could solve their problem, and they may not be able to, rationality cannot itself always assure co- ordination in a PD. Nor therefore can it, by itself, always there rationalize co-operation. Co-ordination between the agents is possible only should they be lucky enough to have co-ordination-facilitating processes lucky enough to solve their CP in the given time. So whether they can rationally co-ordinate and co-operate depends on luck; on something beyond the agents' rational choice as defined by their individual preferences or choice processes. So even granting that an option can be rationally individually chosen where it could not be preference-chosen over equal options (and even if a joint choice is rational if it results from individually process rational choices), it still does not follow that rational agents in nature can always co-ordinate by fiat. No matter how rational they are, nor how willing to co-operate, they will not always co-operate in all possible PDs where the only obstacle is their agreeing on a co-ordinating device. 27 But suppose we insisted that truly rational communities could always resolve such CPs (--for wouldn't we think a community was crazy if its members just left crucial issues hanging because they couldn't overcome such "trivial" obstacles to agreement on how to act?; and isn't it the business of rational choice theory to recover from our pre- critical judgments about what is rational and what isn't, some generalized principles summarizing and explicating our pre-critical "intuitions"?) 28 : Then we've just proved that the rationality of a community (i.e., the ability of the members of the community to coordinate in ways they believe likely to achieve agreed goals) is not the sum contribution of its members conceived as merely preference-rational, nor as also process- rational. It requires a further lucky natural suitedness to co-ordination among their processes. We can put this implication in another way. Suppose that strategic rationality concerns choices where outcomes depend on the choices and/or choice bases of other agents, parametric rationality, choices where outcomes depend only on natural conditions and the choices and/or choice bases of the individual chooser. Then we have shown that the strategic rationalities of agents in a community of choosers differ from parametric in demanding not only choice processes, but also luck in them being suited-to-co-ordination with the individuals in the community. That is, two or more agents are not strategically rational in their dealings with each other unless their several choice processes luckily suit them to co-ordination with each other. IV.2 Leviathans Suppose it is to our advantage to co-ordinate, but that we happen not to be endowed with suitable co-ordination-facilitating processes. Would a Leviathan help? No. Hobbes thought a Leviathan could be established in either of two ways, by "institution" or by 13 "acquisition." 29 In the former, the Leviathan comes to exist by agents in nature creating one to escape the vicissitudes of nature: it is supposedly rational for a given agent to ally with a Leviathan if all others are prepared to do so as well. The agents have as their only incentive to so ally that their joint commitment would remove them from nature and place them under the Leviathan's protection, freeing them from the war of all against all. The only penalty for not signing up is the continuing nastiness of the alternative--life in the state of nature. There are no further individual signing bonuses, nor further individual penalties for not signing. After they signed up there were rewards and threats aplenty from the Leviathan to enforce His policies, but that's different. Now, unfortunately, establishment of a Leviathan by institution involves co-ordination. And if the agents were not guaranteed of being able to co-ordinate on a lottery, then they are not on a Leviathan either. For they must agree on who He shall be, and on what policies He will have. And it was just their inability to agree on policies which required them to resort to a lottery in Case 2, their hypothesized inability to co-ordinate on which lottery to use that drove us to consider whether a Leviathan could help. But as we've seen, we may be unable to rationally agree on joint alliance to a single Leviathan because unable to agree on which policy He should enforce. While if we propose to institute a randomizing Leviathan, we have still to choose among equally attractive possible Leviathans with different equally attractive lotteries; and we could not rationally ally with either if we could not co- ordinate in general in choices between equal options. It is surprising how long this problem has gone unacknowledged in the literature. Consider a recent book-length treatment of Hobbes's solution to such problems. Jean Hampton 30 , recognizing that agents in nature face the problem of selecting a Leader, a Leviathan, suggests that that problem can be solved using one of the following methods: a) One of the agents could impose additional costs on the other should he refuse to accept the Leviathan the first prefers. But what if, as I stipulate, the agents have equal powers to impose costs, so that either or neither can make the other's refusing to concede so expensive as to induce the other to capitulate? Then either both will be willing to capitulate and they will have their problem back in deciding whose capitulation shall stand, or neither will capitulate, and again, their problem returns. b) One of the agents can hold out until the other gives in. But what is to prevent both from holding out? And what is to suddenly make it rational for (just) one to give in? c) Since each has a stake in some resolution being attained, each has an incentive to concede to the other's preferences. But since both have this incentive, both should be prepared to concede; how are they to decide whose gracious concession to accept? d) Since the problem becomes more urgent as a deadline for a solution approaches, one agent should concede as it approaches. But while the approach of the deadline makes things more urgent, given that the agents have equal stakes in their preferred solutions, who should rationally cave in? e) The game is like a game of chicken, and at the last second, both should deviate from the deadlock. But how are the agents rationally to decide who, as it were, shall veer left, and who right?; what in rationality can say who should concede and who should hold? f) One of the agents should yield to the other's irrational inflexibility. But what if both agents are perfectly rational?; what if neither is particularly inflexible? g) One of the agents might have a greater stake in achieving a resolution, and so should, rationally, be more willing 14 to concede. Sure, but what if they have equal stakes, as, I stipulate, is the case here? h) The more risk averse agent should cave in. But what if, as I stipulate, the agents are equally risk averse? i) The agents should use a symmetry-breaking technique, like flipping a coin. Right, but what if they each have a coin, etc., as I stipulate here? How are they rationally (or even by fiat) to decide which of several equally attractive symmetry- breaking methods to use? This just returns us to our original problem. 31 j) The agents could vote on a solution. But when the problem holds between two agents, as here, a vote may not settle the question; voting is like them each choosing a joint lottery method by their several further choice processes, and there is no guarantee of the agents being able to reach a consensus on the joint lottery method in a finite time using these processes. Even with all of this flailing about, then, there is, I insist, no guarantee that the agents can rationally solve their co-ordination problem in attempting to institute a Leviathan. All of these proposals depend on contingencies in the provision of which lady luck might not have obliged. But couldn't a Leviathan solve our problem for us by imposing Himself on us, forcing us to so ally, and so resolving our CP on choosing a method of choosing a solution? This involves the other way for a Leviathan to be established, vis., when one acquires the loyalty of a subject by conquest. It is "be loyal or else." Since people can be "conquered" by positive as well as negative reward, perhaps "if you're loyal I'll give you this" would also count as establishment by acquisition. Now I have three points to make about this. First, nothing guarantees it to happen. Hampton 32 assumed that where there were several candidate Leviathans, one will be the strongest, and the agents, to avoid the harms of this Leviathan and to protect themselves from other, weaker Leviathans, and from each other, would ally with it. But what if there are equally strong incentive-or threat-offering competitor candidate Sovereigns? How are the agents to pick? Discussing this, Hampton assumes 33 that one confederacy (Leviathan) will win out in the "market" of confederacies as the strongest one, making it the one with which the agents ought rationally to ally. But what ensures this? Why might there not, again, prove to be two equals? Again, considering this scenario 34 , Hampton claims that the agents coming to have a Leviathan by acquisition is really the agents making self- interested choices, co-ordinating by means of a salient. They want a Ruler, both want to have the same Ruler, whichever one they end up with, and both are happy to have one chosen for them by that Ruler offering the strongest incentive to alliance; that Ruler's incentive makes Him a natural "salient." (Thus she seems to think that a Leviathan by acquisition reduces to a Leviathan by institution.) Fine, but now recall our old problem. Suppose there are two candidate Rulers, offering equal incentives; who do we want to conquer us? Suppose either of these Rulers would become strongest if we both allied with him, but each is equally attractive for each of us, or each of us mildly favors a different one: how are we supposed to solve our problem? Contra Hampton 35 , it seems that nothing will inevitably lead to one Ruler's having a monopoly on ultimate power, and so there is nothing to inevitably make one Ruler naturally "salient," the one with which it would be rational for both agents to ally. Hampton seems wrong in saying that "nothing is required for the sovereign's institution that these self-interested people are unable to perform." 36 In fact, there may be nothing they can do to make any candidate Leviathan the one with 15 which it is rational for both agents to ally. My second point on Leviathans by acquisition: Some of the ways Leviathans acquire subjects do not happen by the agents' co-ordinating. Rather, agents individually ally with the Leviathan to escape an individual penalty or to attain an individual reward. They pursue individual, not joint strategies. My third point: In those ways in which acquisition does happen by the agents' co- ordinating, it does not happen by them co-ordinating in a way that can count as them having solved their original choice problem. The situation may be one involving co- ordination of some form, as where the Leviathan's threats and seductions induce co- ordination ("You must both comply with my wishes; if either of you does not, you both shall be punished/neither rewarded"). Here, the agents solve a problem by rationally co- ordinating, but not their original one, only the new one of how to escape the wrath (or earn the rewards) of Leviathan. None of this is a "solution" to the original choice problem because it involves exogenous factors, ones external to both the original scenario and its pay-off structure. The Leviathan changes the problem into one in which there is a unique best equilibrium, so that the agents no longer solve their problem by a selection by mutually agreed fiat from among a plurality of good equilibria--there is no longer such a plurality to select from. The agents have not solved their problem; rather, an external force has come in and changed their situation so that they no longer have it. This can of course happen, but it is not a rational solution to a partial conflict as such, since it removes the conflict. To summarize then, a Leviathan by acquisition is not guaranteed to present itself, and even if it does, opting for it is not a solution to the original choice problem (but to a new one). While a Leviathan by institution is no more guaranteed to work as a strategy of solution than attempting to resort to a joint lottery. Unsurprising, for the device of an instituted Leviathan was invented to solve a different problem than that of agreement on a co-ordinated pattern of behavior, vis., "how can it be rational to comply with such agreements?", not "which agreement (on how exactly to co-ordinate) is it rational to make?" 37 Agents unlucky enough to be insufficiently endowed as to be able to co-ordinate can only escape (not solve) their problem by the intrusion of an exogenous factor. Whether a genuinely co-operative solution is possible in a given circumstance of justice (or whether something is such a circumstance) depends in part on sheer luck (in us being co- ordination suited); and we can't overcome bad luck by reason alone. This reduces the number of circumstances admitting of a Gauthian resolution. In effect, morality (and the solvability of a co-ordination problem) depends on luck in the very operation of rationality. (This is a systematic problem. Of course we must also be lucky enough not to be blown up by a volcano in the meanwhile.) Ironically, reasoning our way out of partial conflict through rationally instituted moral or political artifices, systematically depends on non-rational accidents. But it would be wrong to think that wherever a Gauthian resolution must fail, the Hobbesian solution of mutual rational alliance to a state can succeed. For we saw that rationality may be unable to institute a Leviathan to extract us through rational commitments from the worst circumstances of indecision. A solution could only arise 16 non-rationally (relative to the original circumstances of choice) from natural accidents (suiting us to co-ordination); or an escape (not a solution as such) could be afforded by the intrusion of a (single) conqueror with his own agenda. Thus that venerated artifice, the Hobbesian state, once presumed to attract our rational allegiance as our last recourse from the war of all against all, must often be a purely natural object, one in principle not rationally institutable by its prospective constituency; it must have its own agenda. We nearly always have many methods and agents of randomization. Since our rationality affords no a priori guarantee that we can always in principle rationally jointly choose among them, how do we so frequently manage to co-ordinate and co-operate? Evolution would favor communities of agents either genetically endowed with convergent tie-breaking processes, or who were not preference-indifferent and who shared preferences on these matters (or who were, happily enough, subject to certain kinds of conquest). Evolution favors the prejudiced and the picky (and sometimes the conquered), both in individuals, and, especially, in communities. For such communities could solve CPs to their advantage, while others would be stuck with sub-optimal individual strategies. Our present co-operative practices, then, are the beneficiaries of the evolutionary tendency to produce individuals suited-to-co-ordination. But as we saw, the possibility of co-ordination, and so of co-operation, cannot be guaranteed by the individual rationality of agents. It is an unwitting grace of forces themselves of necessity non-rational. Conclusions We can now see that some common precepts of contractarian moral rationalism are false. That a rational choice is a unique function of an agent's preferences given his beliefs was falsified by the fact that an agent can face a choice among equal options. If he can rationally choose among them, rationality must merely be constrained, not exhausted by, the expression of preferences and beliefs; there must also be what I called process rationality, not just preference rationality. That the rationality of collective action (i.e., of groups of individuals co-ordinatively interacting to attain agreed goals) is a unique function of the rationalities of the individuals comprising the collectivity was disproved for both individual preference and process rationality. For were individual rationality merely preference rationality, then just as individuals can face impossible choices among equal options, so can groups of individuals; a group can be indifferent among options even where it prefers at least one of them to some inferiors. And even supplementing individual preference rationality with process rationality so that agents can break preference ties in their individual choices, groups can still face inco-ordinable choices among options process equal for all individuals. The processes individuals use to break ties may not combine to allow groups of individuals to do so. If we hold that groups can always make rational such choices, we must understand the rationality of a collectivity not just as the expression of the preference rationality of its individual members, but as that plus their process rationality, plus a further constraint on the latter to suit the individuals for co-ordination. Moreover, since nothing guarantees that any set of individuals will have several choice processes 17 jointly sufficient to enable agreement on how to break ties in collectively designing such processes, this suitedness to co-ordination cannot itself always be something designable by the group. Rather, it must sometimes be in some way non-rational and adventitious. These reflections on individual and group rationality suggest that to understand strategic rationality (the rationality of agents in interactions with other agents aiming at outcomes which depend on the choices of several agents), we must take groups as our unit of analysis, not individuals; individual strategic rationality must be understood as an irreducible relation (of suitedness to co-ordination) between the individual and her environing group, not as a trait of an individual considered separately. Our reflections also suggest that to understand the rationality of a group (i.e., the ability of its members to co-ordinate in attaining agreed goals), we must invoke invoke evolutionary forces, ones bearing on the group and so on individuals in their relations to their group. We cannot suppose the group's rationality to consist simply in the sum of the preference and process rationality of its members taken separately. Further, since we must understand the strategic rationality of an individual in relation to her environing group, our analysis may suggest that whether someone is strategically rational depends on what group she is in. An agent may have processes of choice suiting her for co-ordination in one group, but not in another. So whether she is strategically rational may be relative to what group she is in. But we might go even further: Suppose we thought that for any two people (regardless of their native group), the two of them are only strategically rational if, in possible dealings with each other, they could always co- ordinate in the kinds of situations we have considered. Then it is a condition on any agent's being strategically rational that all beings which can count as agents are luckily such that their choice processes suit them to co-ordination. 38 That optimal resolutions of partial conflicts are always achievable by rational mutual compromise was disproved by the fact that the stubborness of one agent where agents must choose between otherwise equal options may be the only thing allowing them to solve their CPs. The rest must defer to he who cannot yield, his inflexibility useful in eliminating otherwise equally attractive options. That the state can be understood at least hypothetically as a wholly designed object chosen by its subjects was disproved by the fact that there may be two equal Leviathans so that, since the group could not preference or process rationally choose between them, the only way it could have come to be ruled by one is if it imposed itself. That a just--welfare optimizing--state, must be choosable by a community, fell with the fourth dogma: there could be an optimizing state a group could not rationally choose. And finally, that any maximally just state must be one to which all its citizens would hypothetically commit in individually rational contracts was disproved by the fact that several states could offer optimality, and individuals as rational contractors might not, therefore, rationally be able to contract for even one of them. 18 Notes 1. I began thinking about the issues discussed here when I was the commentator on a paper Jordan Howard Sobel presented at the 1989 meetings of the Canadian Philosophical Association. A descendent of his paper has appeared: "Constrained Maximization," Canadian Journal of Philosophy, 21 (1991), pp. 25-52. For helpful comments made variously on my commentary and on a draft of the present work read at Dalhousie University, my thanks especially to Sobel (who gave me written comments) and also to John Baker, Nathan Brett, Steven Burns, Richmond Campbell, Bob Martin, Jan Narveson, Sue Sherwin, Terry Tomkow, Jane van Arscotte, Peter Valentine, Kadri Vihvelin, Michael Webster and Sheldon Wein. Thanks also to the anonymous reader for this Journal for many helpful suggestions. 2. Sobel, "Constrained Maximization." 3. Sobel, "Constrained Maximization," pp. 25, 37, 40, 42. 4. I here develop possibilities Sobel negatively reviews in passing. See Sobel, "Constrained Maximization," pp. 28, 29-30, 48, 50. 5. Parts of the next five paragraphs are loosely adapted from my `Preference's Progress: Rational Self-Alteration and the Rationality of Morality,' Dialogue, 30 (1991), pp. 4-5. 6. Little hangs on the details of minimax relative concession here, but briefly: If we each invest equally in an enterprise, then, ceteris paribus, we should profit as much and as near to equally as possible in the circumstances. 7. David Gauthier, Morals By Agreement (Oxford: Clarendon Press 1986), p. 167. 8. Gauthier, Morals By Agreement, p. 168. 9. David Gauthier, "Moral Artifice", Canadian Journal of Philosophy 18 (1988), p. 389. 10. Sobel, "Constrained Maximization." 11. This is a version of an example of Sobel's (Sobel, "Constrained Maximization," p. 28), in turn adapted from Gauthier. 12. David Gauthier, Morals By Agreement, p. 120. 13. Sobel, "Constrained Maximization," pp. 29-30. 14. Sobel, "Constrained Maximization," pp. 28, 30, 33. 19 15. As Sobel does in more careful and technical terms, in his "Constrained Maximization," p. 27. 16. Sobel, "Constrained Maximization," pp. 34-37. 17. Jan Narveson suggested the individual randomizer. I am not sure whether he meant that the agent should pursue an individual strategy of individual randomization, or that each agent should provisionally commit to a joint strategy involving each agent's agreeing to the individual use of individual randomizers. I presume the second, where each agent only randomizes provided the other conditionally disposes himself to do so too, for the first is irrational. If I randomized, while you straightforwardly maximized, that would have you always confessing but me not confessing half the time, so I would be getting suckered half the time. 18. Perhaps the outcome utility of mutual defection is then the minimax: for neither agent would rationally accept less, nor could he rationally expect more. 19. Sobel, "Constrained Maximization," pp. 38-43. I've simplified his case a bit. 20. Compare with Gregory S. Kavka, Hobbesian Moral and Political Theory (Princeton University Press: Princeton, New Jersey, 1986), pp. 182-188, especially pp. 186-187. 21. For that matter one of us might just happen to have a fair randomizer. And it would then advantage each of us for us each to duly conditionally commit to taking it for the authoritative one and to complying with its dictates, again saving ourselves the overhead costs and coercions of the Leviathan. 22. Except in the sense that from an unconstrained situation, we can rationally move to mutually agreed constraint by agreeing to refer the choice problem to an agreed joint lottery, not to be confused with an agreed coercive force. 23. I became aware of these questions through Sobel, though he does not put the problem in quite these terms. 24. The reader for this Journal offered the following illustrative example and commentary: Two people need to go through a narrow doorway. One must go before the other, it doesn't matter which one. So who should go? They can easily communicate. One says: "After you," but simultaneously the other is saying "After you." At this point both start going through the doorway. This is clearly unsatisfactory. So they both stop. Then each says "I'll go first." One can see that in principle this could go on forever with them never getting through the doorway, though no irrationality is in evidence...even when communication is possible and an explicit agreement can 20 be made, rational agents will not always be able to make such an agreement. Exactly. A more detailed proof follows in the next section. 25. Gauthier agrees that where there is more than one best equilibrium, "coordination is a matter of chance, not of reason." (David Gauthier, "Coordination," Dialogue 14 (1975), pp. 195-221.) But he thinks that "the salience of one of these equilibria...may be used to reconceive the situation as having but one best equilibrium." Successful coordination is possible if "all the persons involved in the situation apprehend the same outcome as salient." (p. 213) Perhaps, though Margaret Gilbert in her "Rationality and Salience," Philosophical Studies 57 (1989), pp. 61-77, argues that unless one of these options being salient alters the pay-off structure in utilities of the choices, however good for both agents it would be if both chose by the salient, this does not give either agent an individual reason to choose by it, even if, as a matter of contingent psychology, and independent of pure rationality, agents might both tend to choose by it (pp. 71-73). In any case, if we stipulate, as I here do, that there is no salient for one of these options, or if several are equally salient, Gauthier will acknowledge that "coordination is a matter of chance, not of reason." And he admits there is no guarantee of a unique salient ("Coordination," p. 211). He does not seem to have fully traced out the limitations this may imply on the universality of rational co-operation in PDs, and in both "Coordination" and Morals By Agreement, he has been more interested in cases where there are salients, where, by his lights, coordination by a salient is possible. This interest in how coordination can be facilitated by salients when they are available explains, I think, why the possibility that CPs like those we are considering, in the conditions we are imagining, are irresolvable, has received little attention. It is widely assumed that solving perfect information CPs is trivial, and many philosophers tend to advance incautious generalizations which imply the solvability (by pure rationality) of all such CPs. Thus one finds Jean Hampton in her Hobbes and the Social Contract Tradition (Cambridge University Press: Cambridge, 1986) saying of agents facing a CP in choosing a Sovereign that, "nothing is required for the sovereign's institution that [rational]... self-interested people are unable to perform." (p. 172) And we have David Lewis saying in his Convention (Harvard University Press: Cambridge, Massachusetts, 1969): In considering how to solve coordination problems, I have post-poned the answer that first comes to mind: by agreement. If the agents can communicate...they can ensure a common understanding of their problem by discussing it. They can choose a coordination equilibrium--an arbitrary one, or one especially good for some or all of them....Coordination by means of an agreement is not, of course, an alternative to coordination by means of concordant mutual expectations. Rather, agreement is one means of producing those expectations. (pp. 33-34) But it is not clear how the agreement can be arrived at in the first place. This problem receives elaboration in our next section. (I suggest above and below that luck is required to solve certain co-ordination problems. Lewis, too, discusses how luck can start 21 conventions, but he does not invoke it as a possible requirement for making arbitrary face-to-face agreements.) 26. Sobel suggests (in his "Constrained Maximization," pp. 28-29), in another connection, that a rational agent can be imagined to have the power to randomize "in his head," and to commit to acting in a way determined by that process. 27. I thank Nathan Brett, Steven Burns, and especially, Kadri Vihvelin and Sheldon Wein for discussion on these points. 28. My thanks to the reader for this Journal for pressing me on why we can just "insist" in this way. 29. Thomas Hobbes, Leviathan, C.B. MacPherson, ed., (Penguin Books: Harmondsworth, Middlesex, England, 1968), pp. 228-239, 251-257. 30. Hampton, Hobbes and the Social Contract Tradition, pp. 155-160. 31. Kavka too thinks the agents can just "flip a coin." (Kavka Hobbesian Moral and Political Theory, pp. 185-186.) Well sure, if they could agree on which coin to flip, and on who is to make the toss. 32. Hampton, Hobbes and the Social Contract Tradition, pp. 167-168. 33. Hampton, Hobbes and the Social Contract Tradition, p. 169. 34. Hampton, Hobbes and the Social Contract Tradition, pp. 168-172. 35. Hampton, Hobbes and the Social Contract Tradition, p. 172. 36. Hampton, Hobbes and the Social Contract Tradition, p. 172. 37. Or at any rate, such is the part of Hobbes in which Gauthier is primarily interested. Actually, apparently Hobbes wanted the Leviathan not only to enforce compliance with laws (with ideal co-ordinated patterns of choice), but to resolve disagreements about which laws there should be. Communities of agents might not be able to agree on laws because their members might have different stakes in different possible laws, but the Leviathan could choose laws by the standard of which ones would be in His individual self-interest; He would not face a conflictual CP with Himself. (But, contra Hampton and Hobbes, there is no guarantee that He can decide even though He need only cater to His self-interest. For His self-interest requires Him not to provoke revolution, which means He must please His constituency; and if it is divided, any choice of His will displease some of its members, perhaps enough to over-throw him.) However if agents cannot agree on laws, then they cannot agree on a Ruler if that involves agreeing on which kind of Ruler He shall be, i.e., on which laws He will enforce. But suppose the agents, 22 realizing it is better for all that there be some laws, decide to refer this to a Leviathan; they try to choose a Leviathan not knowing what laws He will favor, or try to choose one whom they know will decide the laws by a randomizer: Now they still face the problem of co-ordinating on which of two possible inscrutable or randomizing Leviathans to choose. So the use of Leviathans may not solve the problem of which laws to have, since we still have the problem of deciding which law-maker to have. 38. Thanks to Sue Sherwin for provoking this line of thought. 
work_clhwaebarrcotpczo5d6yjabx4	----	S0031819119000482jra 63..91 Power, Predistribution, and Social Justice MARTIN O’NEILL Abstract The idea of predistribution has the potential to offer a valuable and distinctive ap- proach to political philosophers, political scientists, and economists, in thinking about social justice and the creation of more egalitarian economies. It is also an idea that has drawn the interest of politicians of the left and centre-left, promising an alternative to traditional forms of social democracy. But the idea of predistribution is not well understood, and stands in need of elucidation. This article explores ways of drawing the conceptual and normative distinction between predistribution and redis- tribution, examining those general categories when considering the roles of public services and fiscal transfers, and looking at the ways in which government policies can empower and disempower different individuals and groups within the economy. This article argues that the most initially plausible and common-sensical ways of drawing the distinction between predistributive and redistributive public policies collapse when put under analytical pressure. It concludes that the distinction between predistribution and redistribution is best seen in terms of the aims or effects of policies rather than a deeper division of policy types, and argues that, once seen in those terms, predistribution is a central concern of social justice. 1. Introduction: Predistribution, Redistribution, and Social Justice In recent years the idea of ‘predistribution’ has received a good deal of attention, both in academic discussions of inequality and social justice, and within the world of practical politics. And yet this idea of predistribution is not always used clearly, and much needs to be done to put the notion on a more secure footing. This essay aims to uncover, and then eradicate, various confusions about the idea of pre- distribution, putting the idea on a firmer footing, and thereby clear- ing the way for more productive future discussions of policies and institutions for addressing economic inequality. When political philosophers think about egalitarian public policy, and about what states need to do in order to deliver social and eco- nomic justice, their attention has most often naturally been drawn to questions of redistribution. They typically consider how states can create more equal outcomes through standard fiscal mechanisms, 63 doi:10.1017/S0031819119000482 © The Royal Institute of Philosophy, 2019 First published online 13 November 2019 Philosophy 95 2020 Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core as when more advantaged members of society are taxed by the state, which then uses those fiscal flows to fund transfer payments and to provide public services. It is illustrative here that, when G. A. Cohen launched his powerful and influential critique of Rawls’s account of social justice, the totemic practical issue on which he focussed was the level of the top marginal rate of income taxation.1 While this predominant concern with questions of redistribution as being central to thinking about justice and equality generally still remains, it is noteworthy that more recent work in political philoso- phy increasingly brings questions of predistribution to the fore. As T. M. Scanlon puts it in his 2018 book Why Does Inequality Matter?, ‘[a]nother way of promoting equality, or avoiding inequal- ity, is through what has been called predistribution, that is to say, through the laws and policies that determine individuals’ pretax incomes’.2 This shift of attention to the broader set of laws and pol- icies that produce inequality aligns with a general broadening of concern with the normative assessment of a range of socioeconomic institutions, and away from an artificially circumscribed focus on only a particular subset of the ways in which institutions can either foster or reduce economic inequality.3 This broader focus could en- compass, for example, concerns with minimum wage levels, or the regulation of trade unions and wage bargaining processes, as well as issues of financial and corporate regulation, the regulation of import- ant sectors such as the housing or energy markets, and the use of na- tional and local government procurement spending in shaping the structure of markets.4 1 G. A. Cohen, ‘Incentives, Inequality and Community’, Tanner Lectures on Human Values (Salt Lake City, 1991), 261–329, e.g. 263–4; G. A Cohen, Rescuing Justice and Equality, (Harvard University Press, 2008), e.g. 27–86. 2 T. M. Scanlon, Why Does Inequality Matter? (Oxford University Press, 2018), 102. 3 See Martin O’Neill and Thad Williamson, ‘The Promise of Predistribution’, Policy Network, 2012; Nick Pearce, ‘What Should Social Democrats Believe?’, Juncture 20.2 (2013), 101–110; Alan Thomas, Republic of Equals: Predistribution and Property-Owning Democracy, (Oxford University Press, 2017). 4 Emily McTernan, Martin O’Neill, Christian Schemmel, and Fabian Schuppert, ‘If You Care About Social Equality You Want a Big State: Home, Work, Care and Social Egalitarianism’, Juncture, 23.2 (2016), 138–44; Joe Guinan and Martin O’Neill, ‘The Institutional Turn: Labour’s New Political Economy’, Renewal: a Journal of Social 64 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core A similar broadening of concern can be seen in recent work by leading economists, with Joseph Stiglitz also using the language of predistribution to describe his 2016 proposals for ‘Rewriting the Rules of the American Economy’.5 As Stiglitz puts it in his 2019 book, People, Power and Profits: Progressive Capitalism for an Age of Discontent, ‘If we succeed in making market incomes more equal, there is less of a burden on redistribution. This emphasis on pre-dis- tribution is important. It highlights that getting a fairer distribution of income is not just a matter of redistribution, of taxing the rich to give to the more needy’.6 The idea here seems to be a straightforward one, at least at first acquaintance: predistribution is about the role of government in changing market outcomes, and thereby creating fairer distributive outcomes without the need for directly engaging in redistribution.7 Thomas Piketty, meanwhile, has stressed the need to pursue redistribution and predistribution in combination, with the two being ‘complementary, not substitutes,’8 while also Democracy, 26.2, 2018, 5–16; Joe Guinan and Martin O’Neill, The Case for Community Wealth Building, (Polity, 2019). 5 Joseph E. Stiglitz, Rewriting the Rules of the American Economy: An Agenda for Growth and Shared Prosperity, (W. W. Norton & Company, 2015); see also Joseph E. Stiglitz, 2018, ‘Weak economic recovery was down to flawed policies, not secular stagnation’, The Guardian, 29 August 2018. 6 Joseph E. Stiglitz 2019, People, Power and Profits: Progressive Capitalism for an Age of Discontent (Allen Lane, 2019), 198. 7 For concrete proposals for predistributive policies, see for example, Roberto Mangabeira Unger, Isaac Stanley, Madeleine Gabriel, and Geoff Mulgan, Imagination Unleashed: Democratising the Knowledge Economy, (NESTA, 2019); Liam Kennedy, ‘The institution’s not for turning? Inequality, taxes and anti-capitalism’, Renewal: a Journal of Social Democracy, 27.3 (2019), 51–59; Liam Kennedy, ‘Inequality: from redistri- bution to predistribution and beyond?’, Social Europe, 2 May 2019, avail- able at <https://www.socialeurope.eu/inequality-socialisation/>; Paul Gregg, ‘The Potential and Limits of Predistribution in the UK: Tackling Inequality and Poverty’ in The Predistribution Agenda: Tackling Inequality and Supporting Sustainable Growth, (Policy Network, 2015), edited by Claudia Chwalisz and Patrick Diamond, 79–90; Anne Wren, ‘The Political Economy of the Service Transition: New Political Coalitions for Predistributive Strategies’, in Chwalisz and Diamond, op. cit., 222–234. For a somewhat dissenting voice, see Lane Kenworthy, ‘What’s Wrong with Predistribution’, Juncture, 20.2 (2013), 111–17. 8 Thomas Piketty, ‘Capital, Predistribution and Redistribution’ in Crooked Timber Seminar on Thomas Piketty’s Capital in the Twenty-First 65 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.socialeurope.eu/inequality-socialisation/ https://www.socialeurope.eu/inequality-socialisation/ https://www.cambridge.org/core questioning the conceptual distinction between the two categories: an issue that will be explored in detail in what follows here. This increasing academic concern with predistribution runs paral- lel with developments in the world of practical politics. Traditional models of social democracy have come under pressure as support for welfare state institutions have weakened, leaving a scepticism about familiar forms of redistribution, together with a lack of clarity about what the most promising alternatives to such policies might be. Moreover, with runaway levels of inequality within the rich industrialised countries, it seems increasingly implausible that familiar forms of redistributive, tax-and-spend centre-left politics can any longer be adequate to the task of creating a more just and equitable economic settlement. The lack of clear ideas to animate a new centre-left vision of the role of the state has been associated, in many countries, with a fall in support for mainstream social demo- cratic parties, as we see with the travails of parties such as the French Parti Socialiste, or the German SPD.9 While the US Democratic Party has its own distinct history, placing it at some distance from the mainstream currents of global social democracy, ideas of predistribution have also gained some pur- chase within that party, especially on its more radical wing. A January 2019 New York Times article by Steven K. Vogel, a political scientist based at UC Berkeley, explains the economic policies at the centre of Senator Elizabeth Warren’s policy platform for her 2020 Presidential bid as itself being organised around an idea of predistribution. As the NY Times headline puts it, ‘Elizabeth Warren Wants to Stop Inequality Before It Starts: Redistribution is important, but comes too late’.10 The idea of predistribution has therefore been seen as offering a way forward for progressive and social democratic parties of the left Century, edited by Henry Farrell, 90–107. Available at <http://crookedtim- ber.org/wp-content/uploads/2016/01/piketty-final.pdf>. See also Martin O’Neill, ‘Philosophy and Public Policy after Piketty’, Journal of Political Philosophy, 25.3 (2017), 343–375. 9 See Thomas Piketty, Capital et Idéologie (Éditions du Seuil, 2019); Stephanie Mudge, Leftism Reinvented: Western Parties from Socialism to Neoliberalism (Harvard University Press, 2018); Wolfgang Streeck, Buying Time: the Delayed Crisis of Democratic Capitalism (Verso Books, 2014), Ashley Lavelle, The Death of Social Democracy: Political Consequences in the 21st Century (Ashgate, 2008). 10 Steven K. Vogel, ‘Elizabeth Warren Wants to Stop Inequality Before It Starts’, The New York Times, 3 January 2019. 66 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. http://crookedtimber.org/wp-content/uploads/2016/01/piketty-final.pdf http://crookedtimber.org/wp-content/uploads/2016/01/piketty-final.pdf http://crookedtimber.org/wp-content/uploads/2016/01/piketty-final.pdf https://www.cambridge.org/core and centre-left, finding a way of moving beyond political strategies that seem to have run out of steam. Patrick Diamond and Claudia Chwalisz of the think tank Policy Network, which brings together social democratic parties across the globe, go so far as to describe pre- distribution as offering ‘a new governing prospectus for the centre- left’.11 The idea has, indeed, been taken up by politicians from a range of European social democratic parties, as well as by politicians from the Australian and New Zealand Labor Parties.12 Perhaps most famously, or notoriously, the idea of predistribution was invoked by former UK Labour leader Ed Miliband as a central organising theme of the Labour Party’s economic policy during his leadership, with a focus on reforms to corporate governance (with worker representation on boards) and government procurement practices (to drive up wages and incentivise private sector investment in skills development).13 Although the idea became somewhat muted in the run-up to the 2015 general election in the UK, the idea of emphasising underlying institutional changes to the economy, rather than relying on fiscal re- distribution, has retained its currency as pointing a path forward in the achievement of more just societies in the decades after the end of the social democratic era.14 Having given a sense of the relevant background, both intellectual and political, the aim of this article is to apply some analytical rigour to the idea of predistribution, and to offer a diagnosis of whether it really does describe a distinct and coherent set of policies, to be dis- tinguished from the more familiar forms of redistribution that have traditionally been championed by the centre-left. Only by getting a 11 Claudia Chwalisz and Patrick Diamond, ‘Predistribution: A New Governing Prospectus for the Centre-Left,’ in The Predistribution Agenda: Tackling Inequality and Supporting Sustainable Growth, edited by Claudia Chwalisz and Patrick Diamond, (I. B. Tauris, 2015). 12 See for example Jim Chalmers, ‘Labor and the Tools of Success’, in Not Dead Yet: What Future for Labor? by Mark Latham (Black Inc, 2013); and Penny Wong, ‘Australians Shouldn’t Have to Choose between Growth and Fairness’, The Guardian, 19 May 2014. 13 See Martin O’Neill and Thad Williamson, ‘Philosophical Foundations for ‘Good Capitalism’’, Renewal: a Journal of Social Democracy, 20.1, 2012, 20–32. 14 Ed Miliband, ‘The Inequality Problem’, London Review of Books, 38 (3), 2016, 19–20. See also Eunice Goes, The Labour Party Under Ed Miliband: Trying but Failing to Renew Social Democracy (Manchester University Press, 2016), and Joe Guinan and Martin O’Neill, ‘The Institutional Turn: Labour’s New Political Economy’, Renewal, 26 (2), 2018, 5–16, esp. at 7. 67 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core clear sense of what may or may not be distinctive in the idea of pre- distribution, and, relatedly, whether there is a fundamental distinc- tion between predistributive and redistributive forms of public policy, can we assess whether, as some of those mentioned above might believe, the idea of ‘predistribution’ could serve as an import- ant organising idea for thinking about the future of egalitarian public policy. I shall argue that there are considerable conceptual problems with most common ways in which the contours of the idea of predistribu- tion have been articulated, not least because it is difficult to find an unproblematic way in which to distinguish between predistributive and redistributive forms of public policy. In establishing this claim, my approach will be somewhat dialectical, starting not from an ab- stract conceptual foundation, but encountering the idea of predistri- bution in media res, working through some of the initially plausible but ultimately unsuccessful ways that the idea has been presented. Nevertheless, I shall argue that it is possible to rescue the idea of pre- distribution from the conceptual quagmire into which it might be in danger of falling, if we look to reconstruct it – again in a somewhat dialectical fashion – by first challenging and then redrawing its boundaries. This reconstruction of the idea of predistribution allows us to lay out the idea of predistribution as an important strand in thinking about the potential of a more egalitarian political economy. While my discussion will touch upon the pre-history of predistribution, I begin with the recent history of the idea. 2. The Recent Conceptual History of Predistribution: Jacob Hacker on the ‘Institutional Foundations of Middle-Class Democracy’ Although one can find one or two earlier uses of the term predistribu- tion15, conceived as an alternative approach to standard forms of redistribution, the recent use of the term dates back to a 2011 paper delivered at the Progressive Governance Conference in Oslo by the political scientist Jacob Hacker, on ‘The Institutional Foundations of Middle-Class Democracy’; Hacker has, since then, rightly come to be seen as the central and pre-eminent academic advocate of the 15 James Robertson, ‘The Future of Money: If We Want a Better Game of Life, We’ll Have to Change the Scoring System’, Soundings, 31 (2005), 118–32 68 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core idea of predistribution.16 In this article, Hacker is looking to draw on the lessons of his book co-authored with Paul Pierson, Winner-Take- All Politics17, in terms of its implications for how progressive politi- cians should look to correct for the increasingly inegalitarian charac- ter of the economic settlement in the advanced industrial countries.18 Hacker introduces the idea of predistribution as one of three strands in his diagnosis of what had gone wrong in the past with regard to growing inequality, and therefore as an aspect of the eco- nomic situation ‘crucial for grasping – and overcoming – the chal- lenges that progressives face today’.19 Here is his characterisation of the idea: ‘The first feature is the role of pre-distribution. When we think of government’s effects on inequality, we think of redistribution – government taxes and transfers that take from some and give to others. Yet many of the most important changes have been in what might be called “pre-distribution” – the way in which the market distributes its rewards in the first place. Policies governing financial markets, the rights of unions and the pay of top execu- tives have all shifted in favour of those at the top … The moral of this story is that progressive reformers need to focus on market reforms that encourage a more equal distribution of eco- nomic power and rewards even before government collects taxes or pays out benefits. This is not just because pre-distribution is where the action is. It is also because excessive reliance on 16 Jacob S. Hacker, ‘The Institutional Foundations of Middle-Class Democracy,’ in Priorities for a New Political Economy: Memos to the Left, (Policy Network, 2011), 33–38. Hacker here is using the term ‘middle- class’ in its sense in American English, rather than its sense in British English. 17 Jacob S. Hacker and Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer – And Turned Its Back on the Middle Class, (Simon & Schuster, 2010). 18 A caveat about my argumentative strategy: In this section and the two sections that follow, I shall put quite a degree of pressure on Hacker’s at- tempts to give more definite shape to the intuitive distinction between pre- distribution and redistribution. But this is not intended as criticism of Hacker per se: he has done a great deal to develop an important public policy agenda in this area, and his ways of articulating the conceptual dis- tinction between these kinds of policies are valuable in pointing us towards intuitively appealing, if ultimately unstable, ways of thinking about these issues. 19 Op. cit. note 13, 35. 69 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core redistribution fosters backlash, making taxes more salient and feeding into the conservative critique that government simply meddles with “natural” market rewards.’20 (my italics) Hacker is giving us two reasons for switching our concern from redis- tribution to predistribution: (a) predistribution is simply of greater fundamental importance than redistribution, because it reflects more deep-seated features of how the economy functions – i.e. it is ‘where the action is’; and (b) notwithstanding the more fundamental nature of predistribution over redistribution, it is anyway the case that there are instrumental reasons to turn away from traditional redis- tributive policies, for such policies foster ‘backlash’ and can be counter-productive in terms of feeding the kinds of conservative and anti-egalitarian political sentiments that undermine support for progressive or egalitarian politics. Let us call these the fundamental case for predistribution and the instrumental case. I take it that Hacker takes both considerations – fundamental and instrumental – to operate in tandem, presumably overdetermining his advice for centre-left politicians and political parties. Before assessing the substance of either the fundamental or the in- strumental case for predistribution, though, I want first to pause to ask whether this characterisation of predistribution can be seen as passing muster in terms of determinateness and coherence. Hacker’s characterisation of predistribution is that it is constituted by ‘market reforms that encourage a more equal distribution of eco- nomic power even before government collects taxes or pays out benefits’. (my italics) But it is not clear how we should understand that char- acterisation, once we begin to put some pressure on it. There are, in fact, two ways in which this characterisation might seem to be both confused and confusing, and hence two clear objections that one can make to it. I’ll call these the temporal objection and the Murphy- Nagel objection, and will take them in turn. Firstly, the temporal objection. If read in its literal sense, the talk of before and after with regard to the tax system simply does not stand up. It is not that economic activity somehow takes place within a dis- crete time period, with the government standing outside the eco- nomic domain while these processes take place, only stepping in at the end of each period, so to speak, in order to collect taxes and pay out benefits, so that a new discrete period of economic activity can then take place. Rather, economic activity is an endlessly ongoing process, with the government’s activities as both collector of taxes 20 Op. cit. note 13, 35. 70 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core and payer of benefits a similarly continuous, if periodically modulat- ing, constitutive part of that process. The temporal objection then, is that talk of ‘before’ and ‘after’ with regard to government’s role in economic life, while it has a certain kind of brisk initial plausibility, is on further investigation merely mystifying.21 A second objection takes a step back, allowing that this temporal language of ‘before’ and ‘after’ should not be read literally. One can grant that the distinction between economic activity and government tax-and-spend should not be understood in temporal terms, because the two are always temporally intertwined, while nevertheless thinking that there is an important distinction to be made between economic ac- tivity considered on its own terms, conceptually if not temporally prior to government intervention, and the same activity taking place within the context of a regime of government tax-and-spend activity. But even if the terrain here shifts from the temporal to the conceptual, a different variant of the same kind of problem remains. In their book The Myth of Ownership: Taxes and Justice, Liam Murphy and Thomas Nagel diagnose the conceptual errors embed- ded in the view they call ‘everyday libertarianism’.22 This is, in effect, the view that there is a domain of economic activity, free of government intervention, that has conceptual (if not temporal) prior- ity over really existing economic activity that takes place in the pres- ence of government tax-and-spending. This ‘everyday libertarian’ fallacy explains what goes wrong when an individual thinks of their pre-tax income as in some sense robustly all ‘theirs’, with government intervention through the tax system then conceptualised as the expro- priation of something that would otherwise belong to them. As 21 For a related discussion of the conceptual problems of temporal meta- phors for thinking about the way that the state structures economic activity, see Martin O’Neill, ‘Free (and Fair) Markets without Capitalism: Political Values, Principles of Justice, and Property-Owning Democracy,’ in Martin O’Neill and Thad Williamson, eds., Property-Owning Democracy: Rawls and Beyond, (Wiley-Blackwell, 2012), 75–100, esp. 87–91. 22 Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice, (Oxford University Press, 2002). For critical discussion of Murphy and Nagel’s idea of ‘everyday libertarianism’, see Marc Fleurbaey, ‘Welfarism, Libertarianism, and Fairness in the Economic Approach to Taxation’, in Martin O’Neill and Shepley Orr, eds., Taxation: Philosophical Perspectives, (Oxford University Press, 2018), 37–59; Geoffrey Brennan, ‘Striving for the Middle Ground: Taxation, Justice, and the State of Private Rights’, in O’Neill and Orr, op. cit., 60–80; and Laura Biron, ‘Taxing or Taking? Property Rhetoric and the Justice of Taxation’, in O’Neill and Orr, op. cit., 81–97. 71 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Murphy and Nagel point out, what counts as somebody’s property is itself defined by the full system of property rights, of which the tax system is a part. The tax system is not some alien extrusion into the property system, but a constitutive part of it. Moreover, given that an individual’s market earnings will typically depend on a back- ground of legal, social and physical infrastructure – from contract-en- forcement to public roads – which itself depends on the tax system, it is not as if there exists some kind of normatively privileged possible world in which we somehow can have the benefits of the tax system without being taxed, and against which we should set the normative benchmark of our property entitlements. Hence, what we might call the Murphy-Nagel objection to Hacker’s initial characterisation of predistribution is that there is something confused in talk of economic distributions ‘before government collects taxes or pays out benefits’ even when that before is understood as in- dicating a kind of conceptual rather than temporal priority. The mys- tification may be of a slightly different kind, but it persists in moving from the temporal reading of the phrase to the conceptual reading. Moreover, there would be an odd tension in Hacker’s position if it were to need to make use of this kind of conceptual prioritisation of pre- tax-and-spend economic activity. For bear in mind that, in Hacker’s instrumental case for the shift in focus from redistribution to predistribution, his argument is that the backlash fostered by redis- tributive policies feeds into ‘the conservative critique that government meddles with “natural” market rewards’. In other words, the political psychology of redistribution, in which people resent the government’s apparent appropriation of ‘their’ pre-tax income, is one that involves, and indeed reinforces, the conceptually muddled ‘everyday libertarian’ view to which Murphy and Nagel take exception. Given that Hacker’s instrumental objection to redistributive politics is that it feeds this muddled way of thinking about the relationship between government activity and economic rewards, it would therefore be odd if Hacker’s canonical characterisation of predistribution – conceived as an alterna- tive strategy to familiar forms of redistribution – itself embedded its own version of this same kind of conceptual mistake. 3. A Better Account of Predistribution? Tax-and-Spend vs Market-Shaping Hacker gives a broader and less mystifying characterisation of predis- tribution in a 2013 interview on ‘The Politics of Predistribution’: 72 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core ‘[Predistribution] is a very basic idea. It is that government has an enormous range of ways in which it can shape the distribution of income and opportunity in a society that are distinct from simply taxing and providing benefits. […] (my italics) Markets are deeply shaped by government. And over the last gen- eration markets have been shaped in ways that have benefited those at the top far more than those in the middle and bottom. If we are going to have an effective, progressive agenda for the future, we are going to have to think about how to use these ways in which government shapes markets to pursue progressive goals. By progressive goals I mean, first and foremost, broad growth in the economy that translates into social and economic gains for citizens across the income distribution.’23 (my italics) This is a happier, less problematic characterisation of the core of the idea of predistribution, given not in terms of what can be done before or after government tax-and-spend, but instead putting things more simply in terms of what government can do (a) ‘to shape the dis- tribution of income and opportunity’ (b) ‘that are distinct from simply taxing and providing benefits’. The characterisation of predistributive policies simply as being distinct from, rather than either temporally or conceptually prior, dismisses the two kinds of worries discussed previ- ously. We seem therefore to have here at least a provisionally satisfac- tory characterisation of the idea of predistribution. Nevertheless, it is worth noting a problem with talk of the ‘ways in which it can shape the distribution of income and opportunity in a society that are distinct from simply taxing and providing benefits’ when considered at face value, which is that there is nothing in such a charac- terisation that capturesthe idea of predistribution as a substantively pro- gressive or egalitarian kind of policy. Consider the case of what one might call ‘inegalitarian predistribution’, using a semi-imaginary country that I’ll call Ukania, as a way of illustrating the distinction between formal and substantive understandings of predistribution: The Case of Ukania Ukania has strong labour unions and a relatively compressed income distribution. Organised labour is politically strong when negotiating 23 Jacob S. Hacker, Ben Jackson and Martin O’Neill, ‘Interview: the Politics of Predistribution’, Renewal, 21 (2/3), 54–64, at 54. 73 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core with employers, keeping the capital share of national income rela- tively low. After a general election, a radically anti-egalitarian, ‘pro- business’ government enacts a range of economic policies, including reducing both current and investment spending in public services, and reducing the top rate of income tax (with this latter policy being the one to receive most attention from Ukania’s political philo- sophers24). But at least as important as these changes to the tax-and- spend regime, the government also undertakes a number of measures that we might describe as instances of (formal) predistribution, which are distinct from changes to taxation or benefits. For example, the gov- ernment makes it more difficult for workers to take industrial action, thereby weakening the bargaining power of labour unions, and makes it easier for employers to sack workers, thereby making individual workers more fearful of their economic security and less liable to indulge in industrial militancy. The effect of these (formally) predis- tributive policies is to reshape the power dynamics of the labour market, thereby attenuating the income distribution as managers and entrepreneurs begin to find their economic rewards accelerating away from those of ordinary workers, while also leading to a shift in the balance between labour and capital in their shares of the distribu- tion of national income. The case of Ukania shows that there is nothing in the formal idea of non-tax-and-spend government interventions in market regulation that necessarily aligns with progressive or egalitarian goals. Plenty that a government might do that is not tax-and-spend, from weaken- ing vacation entitlements to lowering minimum wage levels, could lessen the income or opportunities of those people within the economy who were already relatively disadvantaged. Therefore, as we work our way towards a more precise characterisation of the idea of predistribution, it will be worth making a stipulation that what we have in mind is not merely predistribution in the formal sense – under which the government of Reagan and Thatcher in the US and UK could count as striking examples of effective predistributive public policy – but a more substantive idea of predistribution that in- volves the pursuit of broadly progressive or egalitarian goals. Obviously there could be different ways of spelling out the precise nature of those goals, and this is something to which we shall return later in this discussion. Hacker offers one example in talking about ‘economic and social gains for citizens across the income 24 In the vein of the discussion in G. A. Cohen’s work on inequality, in- centives and marginal tax rates. See op. cit. note 2. 74 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core distribution’, which one might see as a fairly minimalist characterisa- tion of a progressive aim, leaving open the space for more ambitious rival views. But the main stipulation is that, in talking about predis- tribution from here onwards, it will be the substantive idea of a broadly progressive or egalitarian form of predistribution that will be in view, rather than the kind of merely formal idea of predistribu- tion under which the regressive policies of our Ukanian example would qualify as a case of predistribution par excellence. This stipula- tion is driven by the nature of the investigation at hand: the fact that we are starting from a really-existing debate among advocates of a more progressive or egalitarian economic settlement, and that it is from that debate that the idea of predistribution has emerged. To return to our provisional characterisation, making use of Hacker’s revised definition and pre-empting the problem of merely formal forms of predistribution, we can define predistributive policies as those that pursue progressive or egalitarian ends (however precisely those are to be characterised) by means of government action distinct from taxing and providing benefits. This position certainly on the face of it seems clear and determinate. But I want to suggest that things get much more complicated as soon as we try to investigate the question of whether there is really an important distinction in kind between government action that involves taxation and spending, and government action that involves distinct mechanisms that shape markets and the location of power within those markets. The potential problem for our provisional position here is that there is a danger that the category of predistributive policies – and hence the idea of predis- tribution itself – may end up relying on a distinction without a real underlying difference. It is to this question that we shall now turn. 4. The Plot Thickens: the Predistributive Function of Public Services For a paradigm case of predistribution, let’s return to our semi-im- aginary Ukania, and imagine the accession to power in that country of a new government which is resolutely sympathetic to labour unions and enacts a number of measures to increase union density, to make industrial action easier, and to embed the role of unions in sectoral pay bargaining, on something of the model of codetermin- ation or Mitbestimmung as we see in models of Rhenish capitalism.25 25 Peter A. Hall and David Soskice, eds., Varieties of Capitalism: The Institutional Foundations of Comparative Advantage, (Oxford University 75 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Let us imagine, as is likely, that these reforms greatly increase the bar- gaining power of labour relative to capital. In John Kenneth Galbraith’s terms, such reforms would grant ordinary workers a form of ‘countervailing power’ with regard to their employ- ers.26 The predictable consequences of such reforms, other things being equal, would be that labour would be able to claim more of the division of the social surplus, the gap in wages between ordinary workers and their bosses would reduce, and inequality would go down. Thus we have here a clear paradigm case of predistributive public policy (in the full substantive sense). Nevertheless, if we’re interested in what governments do to shape markets, and to change the balance of bargaining power between dif- ferent groups or classes within the economy, then that does not give us a special category of action that is distinct from taxation and public spending, but seems to include it, in particular when we think about redistribution through the provision of public services. Consider a different example, where the provision of public services also changes the relevant power dynamics between workers and employ- ers. Let’s call this example the Case of USania. The Case of USania Imagine a society in which healthcare benefits are provided in a hap- hazard way by an inefficient system of private insurance, with many people’s access to even a minimally decent level of healthcare provi- sion being tied to their employment status. Imagine that in such a society, against all previous expectations, a democratic socialist candi- date is elected to the presidency, and that one of his or her first policy priorities is to create a national health system that ensures that all workers have access to an excellent level of universally available healthcare, provided free at the point of use through direct public provision, funded by general taxation. What would be the implica- tions enacting this kind of policy? Well, obviously something would have to happen to the tax system in order to fund this new system, and the new system would bring benefits to many individuals who were comparatively disadvantaged by the previous system. Press, 2001); Thomas Piketty, Capital in the Twenty-First Century, (Harvard University Press, 2014), 140–46. 26 John Kenneth Galbraith, American Capitalism: The Concept of Countervailing Power, (Houghton Mifflin, 1952). 76 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core No doubt there would be some general efficiency gains in moving from a splintered private market to a coherent public system of healthcare provision, and so there would be a certain amount of ‘lev- elling up’, and the removal of the deadweight loss associated with the rent-seeking private bureaucracies associated with the previous system. What there would also be, in terms of direct effects, would be a de facto economic transfer from those who were especially advan- taged by the old system (e.g. by the unreasonable suppression of top rates of taxation) towards those relatively disadvantaged individuals who would be most advantaged by the new system. But something else would happen as well, which would directly parallel what would happen when Ukania moved towards a more Rhenish or Nordic model of employment relationships. The bargain- ing power of labour would go up. When workers’ access to healthcare depended directly on their employment status, and where employers had a role as gatekeepers in terms of access to more adequate and at- tractive health insurance plans, workers obviously had a direct incen- tive against ‘rocking the boat’ in their workplace, given that the effective costs of even a short period of unemployment could be so high. By contrast, after the enactment of our imagined National Health Service – or Medicare for All – in USania, the costs of exiting from a bad employment relationship would be much lower for workers, and hence their bargaining power against their employers would go up, in much the same kind of way as if a change had been made more directly to the regulation of that employment relationship. The tax-funded provision of public services is not of interest to progressives or egalitarians only because it is directly a way of benefit- ting everyone at a cost that falls disproportionately on those who have more, but also because of second-round effects that the provision of public services can have in terms of the structure and distribution of power in economic relationships within that society. The public provision of services such as healthcare, education, and childcare, or even provision of goods such as public transportation and public parks,27 creates the background conditions against which different groups and different sectional interests fight their corner and negoti- ate their economic relationships. Public provision is not just a way of 27 Joshua Cohen, ‘On Central Park’, Gilded Birds, 2 January 2013, avail- able at <https://gildedbirds.com/2013/01/02/joshua-cohen/>; Bonnie Honig, Public Things: Democracy in Disrepair (Fordham University Press, 2017). See also the Labour Party Report, Universal Basic Services: The Right to a Good Life, (Labour Party, 2019), available at <http://www. labour.org.uk/universalbasicservices/>. 77 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://gildedbirds.com/2013/01/02/joshua-cohen/ https://gildedbirds.com/2013/01/02/joshua-cohen/ http://www.labour.org.uk/universalbasicservices/ http://www.labour.org.uk/universalbasicservices/ http://www.labour.org.uk/universalbasicservices/ https://www.cambridge.org/core undertaking a transfer against the backdrop of a market with a par- ticular kind of shape and structure, it is also at the same time a means of shaping markets, and changing the relative bargaining power of different groups of market actors. Therefore, if predistribu- tion is centrally about the role of government in what we might call ‘market-shaping’, then there is not a relevant contrast to be drawn with a different kind of activity (imagined presumably as purely redis- tributive) that government undertakes when it goes in for the provi- sion of public services funded by taxation. Public service provision is in general both about transferring benefits, per se, but also about shaping the background within which market transactions take place, and therefore it is misleading rather than illuminating to draw a sharp contrast, at the levels of types of policy, between policies that have a redistributive role and those that have a ‘market-shaping’ role. A pessimistic diagnosis at this point is that the idea of predistribu- tion as presented in Hacker’s revised and more promising formula- tion ends up trading on a merely shallow distinction between different kinds of government action. If it turns out that precisely what is interesting about the predistributive effects of changes in labour regulation can also be seen at work in the classically ‘redis- tributive’ provision of public services, then we apparently do not have a way of dividing government policies that affect economic outcomes neatly into the two categories of ‘redistribution’ and ‘predistribution’. Advocates of predistribution as the proper zone of focus for progressive or egalitarian politics, in distinction to the previous focus on redistribution, might therefore be seen as relying upon a superficial conceptual distinction that does not illuminate a deeper contrast in how policies function. 5. Power, Public Services, and a Pluralist Account of Predistribution Stepping back from the characterisation of predistribution that has been found wanting, we should note that Jacob Hacker is, of course, fully aware of the market-shaping and power-rebalancing effects of public service provision, and does not fall into the trap of seeing such policies in purely redistributive terms, without being aware of their more ‘predistributive’ function. In another presentation of the core idea of predistribution, presented in a BBC Radio 4 Analysis pro- gramme on the subject, Hacker pursues the thought (which seems to have some intellectual kinship with the thinking of both Michael 78 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Walzer and T. H. Marshall28) that the provision of certain important public services will be valuable precisely for the reason that such pro- vision will reduce the salience and significance of market inequalities. Here, then, is this third account of the idea of predistribution: ‘You have to ask what are the central ways in which government can stand on the side of ordinary workers that do not involve taxing and providing benefits, and I would say that there are three. One, it means getting the macro economy right. When we’re closer to full employment as an economy … we tend to get stronger wage growth across the board. It also means making sure that even if inequality’s growing in the market, it matters less in terms of some vital public services - things like health- care, childcare. And, finally, it means – and this is the hardest part – it means trying to make sure that in an era in which orga- nised labour is weaker that labour still has a voice and a place. And whether that’s supporting living wage campaigns, whether that means providing new opportunities for workers to have a voice outside of unions, whether it means if we privatise public services or contract out and allow all these low wage jobs to pro- liferate in and around the public sector, we’re making our job much, much harder’.29 (my italics) Here we have a more complicated or pluralist conception of what is meant by predistribution. I take it that the idea of ‘getting the macro- economy right’ and avoiding the kind of contractionary austerity as- sociated with UK economic policy in the years following the 2008 financial crisis, is uncontroversial common ground between the advo- cates of different varieties of progressive political economy, whether self-avowedly ‘redistributive’ or ‘predistributive’ in character. The more interesting elements are the second and third. The idea of making sure ‘that labour still has a voice and a place’ looks like a ca- nonical case of predistributive market-shaping, in ensuring, as in our Ukanian example above, that the organised power of labour can be a source of Galbraithian countervailing power within the economy. Let’s call this ‘labour predistribution’, which I now take to be an un- problematic dimension of the idea of predistribution. 28 Michael Walzer, Spheres of Justice, (Basic Books, 1984); T. H. Marshall, Citizenship and Social Class, (Cambridge University Press, 1950). 29 BBC Analysis, ‘Predistribution’, 17 June 2013. Transcript available at: <http://downloads.bbc.co.uk/radio4/transcripts/20130620-analysis- predistribution.pdf> 79 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. http://downloads.bbc.co.uk/radio4/transcripts/20130620-analysis-predistribution.pdf http://downloads.bbc.co.uk/radio4/transcripts/20130620-analysis-predistribution.pdf http://downloads.bbc.co.uk/radio4/transcripts/20130620-analysis-predistribution.pdf https://www.cambridge.org/core The most interesting case, though, is the middle one, which, rather than being a classic case of ‘labour predistribution’, sees the provision of public services as a central plank of predistributive public policy. What is worth noting about such policies is that the predistributive dimension of public service provision has a dual aspect. On the one hand, as in cases like our imagined USanian health service, public service provision changes the distribution of power within market in- teractions between employers and employees. But on the other hand, as Hacker points out, such public service provision, by straightfor- wardly making individuals less reliant on their market income to provide for the vital necessities of life, also simply reduces the salience and significance of market inequalities. Obviously these two effects are related to one another in how they function, but it is worth keeping them analytically distinct. The very same policies can be at- tractive to progressives and egalitarians both because they reallocate market power, changing the terms on which market transactions take place so as to make them more egalitarian in their outcomes, and also because they reduce the importance of market incomes for individuals who can also rely on non-market social entitlements. The first aspect is shared with central cases of ‘labour predistribu- tion’, whereas the second element – lessening individuals’ reliance on the labour market considered as valuable not merely because this will increase individuals’ bargaining power within the labour market – is a distinctive variety of predistribution which could not be enacted by labour predistribution alone. Where does this leave us? On the one hand, it is important to have a clear sense of the significance this dual aspect of predistribution, and of the non-derivative value of increasing workers’ power, and lessening their vulnerability, within the labour market. This shows why it would not be plausible to circumscribe the ambit of predistributive policies so as to exclude predistributive tax-and-benefit policies. On the other hand, this seems to lead us back into our earlier conceptual difficulties, unable to identify a coherent specific category of predistri- butive policies, held distinct from their redistributive alternatives. 6. The Predistributive Role of Taxation and Cash Transfers Before adjudicating on this conceptual issue, I want first to consider a potentially enlightening final proposal, which takes seriously the im- plications of the predistributive role of public services. The proposal is that where we should draw the distinction between predistribution and redistribution is that, whereas the former includes both market- 80 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core shaping regulations and the provision of public services (which both increase workers’ bargaining power in their labour market transac- tions and reduce workers’ reliance on those transactions), it excludes the kinds of pure case of fiscal tax-and-transfer that are an essential element of regimes of redistribution. The case for progressives fa- vouring predistribution over redistribution could then be recast as a case in favour of pursuing a combined strategy of market regulation and the provision of in-kind benefits, as opposed to pursing simple cash transfers. To assess this proposal, I want to take one clear and unambiguous example of a policy of redistributive cash transfer, and one clear example of a policy of altering top-rate income taxation. Even for such pure cases of tax-and-transfer, I will argue that on further investigation both have a dimension that is best understood as ‘predistributive’, such that neither policy can be fully understood in purely redistributive terms. I’ll take the cases in turn. (a) The Predistributive Case for Universal Basic Income There could be no policy that fits more centrally under the descrip- tion of redistribution than a tax-funded cash transfer, of the kind that would be paid unconditionally under proposals for an uncondi- tional universal basic income (UBI). Such policies can be justified in different ways, by means of appeal to different foundational norma- tive principles.30 But it is striking that some plausible justifications for such a paradigmatically redistributive policy depend precisely on the twin ‘predistributive’ effects that such redistributive policies can have. The individual in receipt of a (relatively high) uncondi- tional basic income is, by virtue of receiving that income, likely (a) to have more bargaining power in the labour market than she would otherwise have, and (b) to be less reliant on how she fares in the labour market, and hence less vulnerable to market outcomes. Karl Widerquist, a leading defender of UBI policies, in his book Independence, Propertylessness and Basic Income, justifies UBI on broadly republican grounds, in terms of its giving individuals ‘freedom as the power to say ‘‘no’’’.31 Whilst this does not preclude UBI having other sources of possible egalitarian justification, 30 See Philippe Van Parijs and Yannick Vanderborght, Basic Income: A Radical Proposal for a Free Society and a Sane Economy (Harvard University Press, 2017), Ch. 5. 31 Karl Widerquist, Independence, Propertylessness and Basic Income: A Theory of Freedom as the Power to Say No, (Palgrave, 2013). 81 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core perhaps more closely aligned with its directly redistributive character, this form of republican defence of UBI turns on its ‘second-round’ pre- distributive dimension. The recipient of a (relatively high) UBI will find herself more robustly secure outside of how she fares in the labour market, which may be non-derivatively valuable to her as well as being derivatively valuable in terms of this granting her greater power as an actor within the labour market. Where UBI is universal, and all workers are similarly situated, the bargaining power of labour over capital will increase, just in the same way as in canonical cases of ‘labour predistribution’. And so here even the purest case of a redis- tributive policy can find justification on predistributive grounds. (b) Predistribution and Top-Rate Income Tax: the Piketty-Saez- Stantcheva Effect It is also significant that the justification of some forms of taxation can turn not on the role of those taxes in raising revenue for the fiscal authorities, but simply on their paradigmatically ‘predistribu- tive’ effects in terms of the market bargaining-power of the best paid. This may seem surprising at first sight, given that so much of public and even academic discussion of top marginal tax rates pro- ceeds with the unarticulated assumption that the primary function of such taxes is in their ‘first-round’ effects in revenue raising, hence embroiling us immediately in the over-simplified and rather short-sighted discussion of the shape of the relevant Laffer curves, and our current position with respect to them. But the indirect effects of tax are often just as important, including those that work through effects on the allocation of bargaining power. This will be clearer if we consider what we can call the Piketty- Saez-Stantcheva effect of changes in top marginal rates of income taxation. In their modelling of top rates, Piketty, Saez and Stantcheva find that the determination of top rates of pay is not best understood in terms of standard marginal productivity theory. This is not only because of the formidable epistemic barriers to deter- mining what the marginal contribution of corporate managers or other very highly paid workers actually is, at least outside of specific domains such as the entertainment industry or professional sport,32 but also because more can be explained in terms of a ‘bargaining 32 As Thomas Piketty rather charmingly puts it in Capital in the Twenty-First Century, ‘the theory of marginal productivity runs into serious conceptual and economic difficulties (in addition to suffering from 82 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core model’ of top pay.33 In short, senior managers get what they can bargain their way to getting, given the behaviour of others and the prevailing social norms. When top marginal rates of income taxation are very high, with a comparatively large gap between gross and net pay at the top end of the distribution, highly paid workers will be less likely to focus on the extrinsic financial rewards of their positions, and focus more on the intrinsic rewards of prestige and authority in large organisations; conversely, when top marginal rates of taxation are lowered, and the gap between gross and net pay at the top end of the distribution falls, we see a phenomenon where competitive bar- gaining focuses much more on pay rates per se, thereby driving up the costs to companies of their senior managers.34 Hence, we get the Piketty-Saez-Stantcheva effect, whereby de- creases in top marginal rates of taxation drive up not just net rates of top pay, but much more significantly such tax changes greatly drive up gross (pre-tax) levels of top pay as well. This is due to the ways in which these tax changes transform the bargaining situations in which top pay is determined, both in terms of the incentives held by the highly paid themselves, and in terms of background effects on social norms. What we have here, then, is another case of a putatively pure ‘redistributive’ policy mechanism having significant effects through what we might think of as typically ‘predistributive’ me- chanisms. This is, so to speak, the obverse of what happens in the basic income case, where a cash transfer can drive up bargaining power; what we have here is the possibility that the imposition of a higher marginal rate of income tax would be significant not so much for its direct revenue-raising effects, but because it would sig- nificantly reduce the de facto bargaining power of senior and already well-remunerated managers. A classic instance of redistributive eco- nomic policy would turn out, via the best available understanding of the behaviour of the labour market, to be a paradigm case of ‘labour predistribution’, in which the balance of bargaining power in the labour market would be changed, reducing the existing advantages of the small cadre of super-managers and others at the very top end of the distribution of labour income. a certain naïveté) when it comes to explaining how pay is determined at the top of the income hierarchy’. (Piketty op. cit., 509) 33 See Thomas Piketty, Emmauel Saez and Stefanie Stantcheva, ‘Optimal Taxation of Top Labor Incomes: A Tale of Three Elasticities’, American Economic Journal: Economic Policy, 6 (1), 2014, 230–71. 34 Piketty op. cit., 510. 83 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Progressives and egalitarians may therefore have very good reasons to champion a significant increase in top rate marginal income taxation, but not only or even mainly for the standard revenue-raising reasons that are typically invoked in the justification of higher taxes on top earn- ings. As Piketty, Saez and Stantcheva put it, ‘the optimal top tax rate increases when there are zero-sum compensation-bargaining effects’.35 This point about the existence of zero-sum bargaining effects is of great importance, but is often overlooked. As Paul Segal points out, there is a very important, if often unacknowledged, way in which we collectively have an interest in keeping down top pay, not out of envy, or even for intrinsically egalitarian reasons, but simply because ‘one way or another, the rest of us have to pay for those incomes: as workers, higher pay at the top means our salaries have to be lower; or as consumers, it raises the prices we face; or as pension- holders, it lowers share prices and profits that fund our retirement’.36 Hence, we return here in a different way to a version of the funda- mental point about taxes made by Murphy and Nagel. Taxes are not some external intrusion into an independently operating economic system, but a constitutive part of the rules of that game; and the struc- ture of the tax system, just as much as the structure of labour law or the array of provision of public services, affects and conditions the relative bargaining powers and positions of different groups and classes of agents within that system. 7. The Collapse of the Distinction between Redistribution and Predistribution? Our conceptual conclusion, then, is that even this much-revised char- acterisation of predistribution fails to pick out a distinct type of policy. Or, to put things in a different way, if we were stipulatively to decide that predistribution should be understood as marking out a class of policies that particularly exclude canonically redistributive tax-and- transfer policies, then we would end up with a category of policies without any underlying coherence at the level of justification, and without any real conceptual or normative interest. There is no 35 Piketty, Saez and Stantcheva, op. cit., 230. 36 Paul Segal, ‘The Problem of Riches’, Renewal, 22 (3/4) (2014), 135–143, at 141. As Segal continues: “Again, since the evidence shows that excessive pay at the top does not increase the size of the pie, their ever-growing slice comes at everyone else’s expense, and trimming it would leave more for the rest of us.” 84 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core interesting or deep distinction at the level of types of policy, as regards the distinction between redistribution and predistribution, given that (a) many policies have both redistributive and predistributive conse- quences, and (b) even the narrow class of pristinely ‘redistributive’ policies, against which the idea of predistribution was characterized by Hacker and others, can themselves have predistributive effects. There is simply no such thing as two distinct categories of policy, one marked redistribution and one marked predistribution. Does this mean that we have simply been on a wild goose chase in thinking through the idea of predistribution, seen as an alternative to traditional forms of redistribution? Thankfully this is not the case. What we have shown is that, insofar as there is an important distinction here, it hasto bewith regard to the aims and effects of policy, rather than in terms of the nature of the policy tools or mechanisms that are used. The content of these policy aims and effects has already been touched upon above, in imagining the new USanian healthcare or Medicare service, and its potential twin roles in both reducing objectionable in- equalities of power within market relationships, and giving individuals a secure standing outside of the market transactions in which they may otherwise be potentially vulnerable to a troubling degree. To get a clearer sense of these predistributive policy aims, I want very briefly to revisit a thinker whom one can see as a highly significant theorist of predistribution avant la lettre: the Nobel Prize winning economist James Meade. In seeing what was at stake Meade’s critique of redistri- bution, we can hope to get a clear fix on what is at stake between advo- cates of predistribution and redistribution, now reconceived as aims or objectives of policy, rather than as distinct kinds of policy. 8. The Pre-History of Predistribution: James Meade on the Twin Aims of Predistribution In his important 1964 book, Efficiency, Equality, and the Ownership of Property, James Meade advanced a compelling account of how wealth should be treated by institutions tasked with creating a more egalitarian economy.37 This work has been influential both on polit- ical philosophers – especially in John Rawls’s ideas of a ‘property- owing democracy’ – and on Meade’s fellow economists, in particular through the work of Anthony Atkinson and Thomas Piketty, the 37 J. E. Meade, Efficiency, Equality and the Ownership of Property, (George Allen & Unwin, 1964), 85 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core latter of whom describes his own work as ‘following in the footsteps’ of Atkinson and Meade.38 Meade is an interesting figure in the development of thinking about predistribution not least because he was in fact sceptical about the central form of ‘labour predistribution’ that would be involved in bidding-up the bargaining power of labour unions through having pol- itically stronger unions – what he described as enacting a ‘Trade Union State’. His argument was that the costs in overall aggregate economic ef- ficiency of bidding up the price of wages were unjustifiable, and hence an egalitarian economy would have to be sought bysome other means.39 His alternative to ‘labour predistribution’ was to change the character of the overall economic distribution, and therefore also the social relation- ships and distribution of power to which it would give rise, via mechan- isms of what we might call ‘capital predistribution’. He saw the role of the state not in merely ameliorating the poverty of those who did not inherit any of society’s wealth, but in making sure that all citizens within a society would benefit from capital returns. This ‘capital predis- tribution’ would be achieved by a mixture of private means – the creation of ‘a property-owning democracy’ in Meade’s terms – operat- ing simultaneously alongside a ‘socialist state’ that would expand the collective, public ownership of capital through institutions akin to contemporary sovereign wealth funds (or, as Meade put it ‘a national asset’ or ‘Citizens’ Trust’). Meade described the combination of these public and private forms of capital predistribution as together bringing about a form of ‘liberal socialism’.40 38 Piketty op. cit., 582. See also Martin O’Neill, ‘Philosophy and Public Policy after Piketty’, Journal of Political Philosophy, 25.3 (2017), 343–375, esp. 361–5; Martin O’Neill, ‘James Meade and Predistribution: 50 Years Before his Time’, Policy Network: Classics of Social Democratic Thought, 2015, available at: <https://web.archive.org/web/20170312125656/http:// www.policy-network.net/pno_detail.aspx?ID=4909&title=James-Meade- and-predistribution-50-years-before-his-time>. 39 Meade, op. cit., 35–7. 40 Meade, op. cit., 40–76. See also Martin O’Neill and Stuart White, ‘James Meade, Public Ownership, and the Idea of a Citizens’ Trust’, International Journal of Public Policy, 15 (1–2), 2019, 21–37. Anthony Atkinson, in his final book Inequality: What Can Be Done? (Harvard University Press, 2015), advocates a suite of egalitarian policies, including forms of ‘capital predistribution’ and the creation of a public ‘Investment Authority’, operating as a sovereign wealth fund, that can be read as an updated development of Meade’s pluralist egalitarian policy strategy. (Atkinson remarked to me that he wrote his book ‘with a copy of James’s book in front of me’ (personal correspondence, 4 January 2016)). 86 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://web.archive.org/web/20170312125656/http://www.policy-network.net/pno_detail.aspx?ID=4909&amp;title=James-Meade-and-predistribution-50-years-before-his-time https://web.archive.org/web/20170312125656/http://www.policy-network.net/pno_detail.aspx?ID=4909&amp;title=James-Meade-and-predistribution-50-years-before-his-time https://web.archive.org/web/20170312125656/http://www.policy-network.net/pno_detail.aspx?ID=4909&amp;title=James-Meade-and-predistribution-50-years-before-his-time https://web.archive.org/web/20170312125656/http://www.policy-network.net/pno_detail.aspx?ID=4909&amp;title=James-Meade-and-predistribution-50-years-before-his-time https://web.archive.org/web/20170312125656/http://www.policy-network.net/pno_detail.aspx?ID=4909&amp;title=James-Meade-and-predistribution-50-years-before-his-time https://www.cambridge.org/core In terms of getting to the normative heart of the predistributive ideal, though, what is most striking in Meade’s book is not so much the detail of his institutional proposals for ‘capital predistribu- tion’, as the content of his critique of existing forms of welfare state redistribution. He did not for a moment think that redistribution was unnecessary, or that predistributive measures should entirely replace traditional tax-and-spend or tax-and-transfer policies, but his worries about the limits of the familiar mid-twentieth century welfare state are powerfully expressed, and make a clear case for why it is that a concern only for the distribution of income cannot be sufficient to create an egalitarian economic settlement, and why ‘capital predistribution’ must be a necessary element of a just institu- tional structure. Here is the key passage: ‘Extreme inequalities in the ownership of property are in my view undesirable, quite apart from any inequalities of income which they may imply. A man with much property has great bar- gaining strength and a great sense of security, independence and freedom; and he enjoys these things not only vis-à-vis his proper- tyless fellow citizens but also vis-à-vis the public authorities. He can snap his fingers at those on whom he must rely for an income; for he can always live for a time on his capital. The propertyless man must continuously and without interruption acquire his income by working for an employer or by qualifying to receive it from a public authority. An unequal distribution of property means an unequal distribution of power and status even if it is pre- vented from causing too unequal a distribution of income’.41 The predistributive ideal involves seeing that individuals who sell their labour within the market need to be given (a) more equal bargaining power within the labour market, and (b) greater security, independence and freedom outside the labour market. Significantly, these goods have to be secured against both other people and against the state. And ul- timately these goals are best understood with regard to our underlying egalitarian interest in social relations of status and power. 9. Conclusion: Power, Predistribution, and Social Justice Predistribution is, one might say, the name for the broad set of egali- tarian economic policies justified by a conception of egalitarian com- mitment that goes beyond a concern only with the distribution of 41 Meade op. cit., 38–9. 87 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core goods and money, but which is centrally concerned with status and power in economic outcomes. There is, then, a clear sense in which the idea of predistribution has an internal connection to ideas of social egalitarianism, projected into the economic domain, embody- ing the ambition to think about economic policy in a way that goes beyond what Iris Marion Young has called ‘the distributive para- digm’.42 The point of predistributive policies is to shape the character of economic relationships, seen as sites for the exercise of power, and this therefore runs beyond a concern only with final distributive results. The twin egalitarian aims of such policies are dispersing power within markets, and making individuals less dependent on market outcomes in the first place. These twin aims are closely related, and can often be achieved together. It is a familiar objection directed at advocates of a political focus on predistribution, that even effective policies of predistribution would not eradicate the need for forms of redistribution, both in the form of direct cash transfers, and in the form of indirect transfers through the provision of public services funded through taxation. Obviously, the advocate of predistribution should have no argument with this objec- tion, not least because, as we have seen in sections 4–6 above, such redistributive policies frequently have a distinctively predistributive justification. Moving away from the Hacker-type view that sees predistribution as a kind of policy as opposed to a kind of aim or goal, or valuable effect, helps to forestall this kind of unilluminating disagreement between advocates of predistribution and their oppo- nents. Moreover, it should be no part of advocating predistributive public policies to think that there might not also be a justification for transfers or public service provision that was based on purely re- distributive considerations – i.e. because one person or group is in need, or suffering some absolute level of privation, and the transfer from a relatively advantaged person or group would rectify this. After all, our concerns as egalitarians are complex, combining consid- eration of both how well each individual fares, and of the nature of the social relations between individuals.43 There may also be cases where purely redistributive aims could be most efficiently enacted by means of the kinds of policy mechanisms associated with predistribution. In many cases, the same policies might be favoured by progressives and 42 See Martin O’Neill, ‘What Should Egalitarians Believe?’ Philosophy & Public Affairs, 36.2, 2008, 119–56. On the idea of the “distributive para- digm”, see Iris M. Young, Justice and the Politics of Difference, 2nd edition, (Princeton University Press, 2011). 43 Scanlon, op. cit.; O’Neill, op. cit. 88 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core egalitarians for both their redistributive and predistributive effects, operating at once but by means of distinct mechanisms. None of these cases would constitute an objection to either our characterisa- tion of the idea of predistribution, or to the claim that progressive or egalitarian politics should treat predistribution as a central priority. Some of the political attraction of predistribution to centre-left parties and politicians during the 2010s rested on the fact it looked like the route to a social democratic strategy for an age of austerity, in which government spending was to be severely curtailed. But taking seriously the state’s role in shaping markets, or in accentuating the power of the disadvantaged, is not, as we have seen, something that can be done in isolation from thinking about the role of public services, or the role of the tax system. So the hope that a commitment to predistribution might be an egali- tarian strategy ‘on the cheap’, or one which could somehow be pursued without political conflict with existing economic interests, is obviously an illusory one. This might also be thought to be a point that stands against Hacker’s ‘instrumental’ defence of the focus on predistribution – that is, against the hope that the pursuit of egalitarian strategies that did not involve standard forms of redistribution might be achieved without whipping up the usual kinds of reactionary political backlash that might be expected to be faced by projects of egalitarian transformation in the economy. What we have seen in the foregoing discussion is that there is unlikely to be a way of achieving the aims of predistribution without significant changes both to labour regulation and to the fiscal system, involving in particular changes to the taxation of wealth and inherit- ance. Such measures are unlikely to be uncontroversial, or free from political backlash, even if it is also true that some forms of predistribu- tive public policy could, if skilfully designed, be more likely, at least in some places and at some times, to fly under the ‘political radar’ of anti-progressive or anti-egalitarian political forces. Predistribution is a capacious idea. One might say that it is the name for a problem in egalitarian public policy: that is, how can we create an economy without objectionable inequalities in bargaining power, in which the status, standing and self-respect of each is protected? It is not the name for any particular solution to this pressing and difficult problem. Nevertheless, by taking seriously the idea of predistribution we open up an important agenda for thinking about egalitarian public policy, and pursing the twin aims of equalizing market power and making individuals’ life chances less dependent on market 89 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core outcomes. Such an agenda emphasises the point that the character of economic relationships should be at the core of our thinking about social justice. For political philosophers, one central lesson is that, whereas the discipline has often thought a great deal about the assessment of dis- tributive outcomes, developing a cornucopia of principles for the normative assessment of all-things-considered final distributions, we need to think more about the detailed structure and texture of eco- nomic policy, and to give more consideration and attention to the social consequences both of particular policies and institutions, and to the interactions between them. We have an urgent collective goal in thinking not just about the distributive outcomes the economy produces, but in thinking more about the particular ways in which the economy can be shaped to disempower the privileged and to empower the disadvantaged.44 44 For helpful and stimulating comments and questions, I am grateful to audiences at the McCoy Family Center for Ethics in Society at Stanford University, at the Center for Ethics and Public Affairs at Tulane University, at the Harvard-Fudan-NYUAD Conference on Justice at Fudan University, Shanghai, at the Social Justice Centre at Concordia University, at the Universities of Jerusalem, Belgrade, Minho, and Sydney, and at McGill University, UCL, and the Universidad de Chile. I am also grateful to the Fabian Society, the Friedrich-Ebert-Stiftung of the German Social Democratic Party, and the Chifley Research Foundation of the Australian Labor Party for opportunities to discuss ideas of predistribution with political audiences. Thanks in particular to Pablo Aguayo Westwood, Daniel Attas, Tongdong Bai, Juliana Bidadanure, Jim Chalmers, Lindsey Chambers, Prithviraj Datta, Avner de-Shalit, Patrick Diamond, Peter Dietsch, Steven Durlauf, Bela Egyed, Marc Fleurbaey, Pablo Gilabert, Joe Guinan, Jacob Hacker, Louis-Philippe Hodgson, Ben Jackson, James Johnson, Liam Kennedy, Hélène Landemore, Ben Laurence, Ted Lechterman, Dominique Leydet, Désirée Lim, Fernando Lizárraga, Rocío Lorca Ferreccio, Roberto Merrill, Henning Meyer, Ed Miliband, Oded Na’aman, Dai Oba, Kristi Olson, Rachel Reeves, Jonathan Riley, Mathias Risse, T. M. Scanlon, Shlomi Segall, Nicole Selamé Glena, Ania Skrzypek, Lucas Stanczyk, Isaac Stanley, Christine Sypnowich, Alan Thomas, Isabella Trifan, Laura Valentini, Daniel Weinstock, Stuart White, Karl Widerquist, Andrew Williams, and Bernardo Zacka for illuminating discus- sion of the issues with which this article is concerned. I also thank the journal’s anonymous referees for their extremely helpful suggestions. I am pleased to be able to acknowledge research support from the Independent Social Research Foundation (ISRF), in the form of a research fellowship on ‘Social Justice, Predistribution, and the Democratization of Capital’. 90 Martin O’Neill Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core MARTIN O’NEILL is Senior Lecturer in Political Philosophy in the Department of Philosophy at the University of York. He is the author, with Joe Guinan, of The Case for Community Wealth Building (Polity Press, 2019), and the editor of Taxation: Philosophical Perspectives (OUP, 2018) (with Shepley Orr), and Property-Owning Democracy: Rawls and Beyond (Wiley-Blackwell, 2012) (with Thad Williamson). He works on a number of issues at the intersection of political philosophy, political economy, and public policy. 91 Power, Predistribution, and Social Justice Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Power, Predistribution, and Social Justice Abstract Introduction: Predistribution, Redistribution, and Social Justice The Recent Conceptual History of Predistribution: Jacob Hacker on the &lsquo;Institutional Foundations of Middle-Class Democracy&rsquo; A Better Account of Predistribution? Tax-and-Spend vs Market-Shaping The Case of Ukania The Plot Thickens: the Predistributive Function of Public Services The Case of USania Power, Public Services, and a Pluralist Account of Predistribution The Predistributive Role of Taxation and Cash Transfers The Predistributive Case for Universal Basic Income Predistribution and Top-Rate Income Tax: the Piketty-Saez-Stantcheva Effect The Collapse of the Distinction between Redistribution and Predistribution? The Pre-History of Predistribution: James Meade on the Twin Aims of Predistribution Conclusion: Power, Predistribution, and Social Justice 
work_cm7tuq2w5rdtfnhak6s6lhpqfm	----	S0031819120000017jra 211..225 Justice and History SUSAN NEIMAN Abstract This article explores intergenerational justice and its connection to historic (in)just- ice and reparations. It includes both the post-war period, and the abolition of the transatlantic slave trade, as case studies. 1. Introduction My concern here is intergenerational justice, a topic which young climate activists have brought to our attention. We owe our children a world which they can decently inhabit. This is self-evident for those of us who have biological children, at least since the invention of re- liable birth control; having made a decision to bring children into the world, we are responsible for making that world as decent as possible. Our possibilities are limited, as those of us who are parents painfully know, yet it is always in our power to make the world somewhat better or worse. Yet even those who never become parents have a responsi- bility to future generations, and not simply because future genera- tions should be counted in whatever calculations we make when considering the impact of our actions on others. It’s even more im- portant to focus on the specific fact of human being: we are animals who are part of a chain on which our existence rests. I’m inclined to think we owe a debt to the world for the gift of living in it; that making some contribution to the world that sustains us is incumbent on us all. Gratitude is a virtue, though it’s seldom explored. But even if you don’t accept a positive duty to pay something in return for the gift of life itself, I hope you’ll agree that making the world worse is an act of base ingratitude. Apres moi le deluge is an expression that became infamous for a reason. 2. Historic injustice My focus here, however, is our attitude to past generations who have made the world worse. Whether you focus on slavery or colonialism, arms races or global inequality, all of us were thrown into a world so problematic that fulfilling our obligations to the next generation by 211 doi:10.1017/S0031819120000017 © The Royal Institute of Philosophy, 2020 Philosophy 95 2020 Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core contributing to cleaning it up is an overwhelming task. Yet by virtue of the same chain that binds us to future generations, we have some relation to the sins of our fathers. We are not only animals who form part of a biological chain; we are animals who would perish without the care our parents provide in the first two years of life. Our parents’ care in turn is embedded and sustained in a web of social structures for which they may have limited responsibility, but without which they could not function: things as simple as water supplies and grocery stores, and as complex as government. I want to explore these questions by moving from the abstract to the particular, and looking at two cases I have studied closely for the past four years. While I think the claims I make can be extended to others, I believe that moral as well as legal responsibility must be grounded in particular historical details, so I will only gesture, in closing, at wider applications. Germans like long compound words, and they’ve invented one that has no equivalent in any other language: Vergangenheitsaufarbeitung. There are variations on the term in German, but I use this one – working off the past – because it implies that the past can, and should, be worked off in the way you work off a debt. It also implies that, for all but the very wealthy, debts must be worked-off slowly and incrementally, like mortgages. Unless you’re a billionaire, a one-off payment is rarely enough. Beginning in the ‘60s, a majority – or at least a very loud minority – of educated young Germans insisted that they, and their nation, needed to work-off the Nazi past. This was not a popular position, and most people outside Germany are shocked to learn that, for decades after the war, most West Germans did not feel the need to atone, or work-off anything at all. In fact, they saw themselves as the war’s worst victims. After all, their cities had been reduced to rubble, their territory dismembered, 7 million of their citizens killed; millions of men who survived were prisoners of war, humiliated by those they’d despised and sought to conquer. The first postwar years were marked by hunger and cold so intense that trees which had lined city streets for a hundred years were felled to keep their residents from freezing to death. And on top of it all, the occupiers of the two nations they most detested – the sub- human Russians and the vulgar Yankees – were insisting the war was their fault? It’s easy for even good historians like the former British Museum director Neal MacGregor to miss the undertone of self-pity that permeated postwar Germany. That’s partly because most Germans found it so obvious they didn’t bother to state it, and partly because the one picture of postwar Germany that captured international attention was the one we wanted to see: Willy Brandt on 212 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core his knees before the Warsaw Ghetto memorial. We did not know that Brandt’s gesture was unique. Brandt himself had done nothing for which he needed to repent; the committed Social Democrat fled Germany for Norway a few months after the Nazis took power. We did not know that this act, which made him a Good German in the eyes of the world, made him a Bad German in the eyes of the Christian Democrats. The most powerful party in Germany had no qualms about using Brandt’s self-imposed exile as a campaign slogan against him: ‘What was Herr Brandt doing abroad for twelve years?’ Still, when he became chancellor, Brandt felt he had a respon- sibility to atone for the crimes of the nation he represented. The spon- taneous act of kneeling, admired by other nations, was one reason his tenure as chancellor was cut short, though not the official reason. In 1970, most of West Germany saw no need for repentance, and cer- tainly no submissive gesture before the Slavs, who had never been viewed as a nation of equals. Far more typical of German leaders was the Christian Democrat Helmut Kohl, who famously insisted that he benefited from the ‘mercy of a late birth’.1 No sane person could ascribe personal respon- sibility to someone, like Kohl, who was three years old when the Nazis took power. For him and his contemporaries, therefore, the slate was wiped clean, and he could represent a new Germany unen- cumbered by its past. When he argued this in 1983, Kohl was so sharply criticized for the expression that he took it back seven years later, though his weak- kneed attempt to explain his earlier use of it convinced no one. For a change in consciousness, begun in the ‘60s, had begun to take hold among Germans who recognized the slate would never be clean unless they scrubbed harder. If you think this is overworking a metaphor, you should know that for decades, those who advocated working-off-the-past were called Nestbeschmützer, people who dirty their own nests. The Nestbeschmützer replied that the dirt was already there, stinking to high heaven, and could no longer be swept under the carpet. Those who have been to Berlin have probably seen the Holocaust memorial, a monument the size of four football fields placed next to Brandenburg Gate, which is the symbolic center of reunited Germany. One of the leaders of Germany’s new rightwing party, the AfD, complained that no other nation in the world has planted a monument of shame in the heart of its capitol. He is right to say 1 Hans Peter Schwarz, Helmut Kohl. Eine politische Biographie (Munich: Deutsche Verlags-Anstalt, 2012). 213 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core that no other nation has done it, wrong to complain about that. Germany’s decision to remember its criminal past should be a matter for precarious pride; the shame lies in the crimes, not the marking of them. This is now a consensus, though it’s a consensus the radical right is working to undermine. What I want to emphasize is how hard that consensus was to achieve, pace Willy Brandt. It took decades of struggle, often interge- nerational struggle, to force changes in notions of citizenship, govern- mental policies, educational systems and physical iconography. It’s a struggle that was often personally wrenching, because the insistence on facing one’s parents’ crimes seemed to conflict with the duty to respect your parents simply in virtue of the fact that they are your parents. Of course cultures differ widely in their views of the scope of that duty. Traditional cultures extend it to respecting your parents’ wishes for your own life, what profession you should enter or what person you should marry. But all cultures presuppose some respect for your parents simply because parenting – at its most basic, keeping small helpless creatures alive until they can live on their own – is bloody hard work. It would be even harder without the presumption that respect and gratitude are owed to the person or persons who do that work. In extreme cases of abuse – think of incest or hard violence – parents may forfeit their right to be re- spected. Extreme cases. So what if your parents were Nazis? This was the dilemma faced by most thoughtful Germans of my generation, give or take a decade. Dates mattered, as did exact biog- raphies. Those whose fathers were drafted, but served as medical or- derlies, had the easiest time of it. Some, like the son of Hans Frank, the high Nazi official who governed most of German-occupied Poland, has written about privately celebrating the date of his father’s execution. One can hardly imagine the clashes in this man’s soul, torn between the duty to respect and mourn the people who sired us, and the knowledge that his father truly was one man who could not claim to be only following orders. He gave them. But even those whose parents were far less culpable felt contaminated by their parents’ sins. Only those who truly resisted Nazi crimes were not complicit in them – and most of those who truly resisted were dead. It’s significant that many West Germans of that generation chose not to have children themselves, largely because their notions of family and authority, respect and responsibility had become so con- flicted. Some Germans, such as Bernhard Schlink, author of the dreadful albeit bestselling novel The Reader, even argued that the only way a German can escape her Nazi parents’ guilt is to break 214 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core with them entirely.2 Many did. In order to restore some sense of health to the chain that binds parents and children, working-off their parents’ debts was unavoidable. Most states require that debts be paid before deceased persons’ assets are distributed to heirs. It’s a legal obligation you can only avoid by refusing to accept an inherit- ance at all, which isn’t even possible in all cases. This aspect of law is based on intuitions about fairness: you have no right to enjoy the ben- efits of an inheritance and reject its liabilities. Unlike personal prop- erty, historical debt can rarely be quantified. Yet the intuition embodied in the law is one we are right to preserve. Our relation to our nations is not, of course, exactly analogous to our relation to our parents, but the analogy is strong enough to be useful. We all benefit from inheritances we did not ask for, and can only partially reject, if we choose. These include, most crucially, being born into a particular culture, with all the history and social structures that implies. The difference between being born in Scotland and being born in Somalia makes all the difference in the world, and a Scot who moves to Somalia will see that more clearly, not less so. Seeing clearly can involve seeing reasons for pride in one’s own culture as well as shame for its failures. But there’s a reason why the joke about what makes an Austrian is so bitterly funny. ‘An Austrian is someone who tries to convince you that Hitler is from Germany and Beethoven from Vienna’. Unlike Hitler’s birthplace Austria, where support for the Nazis was even stronger, Germany went through a decades-long process which involved many elements. One I want to turn to now was the payment of reparations. 3. Reparations No material payment can compensate for the suffering inflicted by slavery. No one who has read a thorough description of slavery, in Auschwitz or Alabama, would prefer it – no matter the compensation – to never having been enslaved at all. The Austrian Jewish philoso- pher and writer Jean Améry, who was imprisoned in Auschwitz for two years, wrote that the only thing that could truly make up for those crimes would be turning back time and undoing them.3 The 2 Bernhard Schlink, The Reader, (Vintage International, 1995). 3 Jean Améry, At The Mind’s Limits: Contemplations by a Survivor on Auschwitz and its Realities, Edited by: S. Rosenfeld and S. P. Rosenfeld, (London: Granta Books, 1966). 215 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core only way to solve the problem, he concluded, was ‘by permitting resentment to remain alive in the one camp and, aroused by it, self- mistrust in the other’. If this took place, Germans would have inte- grated Auschwitz into their natural history rather than allowing it to be neutralized by time. Améry himself, a man of exquisite moral sensibility, did not apply for the reparations he was owed, despite the fact that his material situ- ation after the Liberation was anything but solid. In fact, the roughly 80 billion marks that West Germany paid to Holocaust victims were only accompanied by a half-hearted apology wrested from Adenauer by the Israelis, who virtually wrote it. (The reparations paid by East Germany to Poland and the Soviet Union were forced, though it is telling that with a resolutely anti-fascist government in power, many East Germans thought the reparations were fair.) In his first speech to parliament in 1949, Adenauer had lamented the wartime suffering of a long list of Germans – those who lost their homes to an- nexation or bombing, those interned in POW camps, those who were widowed or crippled. Before entering into talks about concrete sums, therefore, Israel insisted that Adenauer make a formal statement to parliament admitting German culpability for crimes against the Jewish people. The Jews wanted more acknowledgment of guilt, the Germans wanted less, and what emerged was a compromise. Still, the apology was historic, as were the payment of reparations for it. In making those payments, however, Adenauer’s government made an implicit bargain: in paying money to our victims we have fin- ished the process of working-off-our past. We can turn our faces away from the shameful pages of our history, make no attempt to remove former Nazis from our government, our schools, or our cultural insti- tutions, and consider accounts settled. It’s important that almost 50 years after Adenauer’s agreement, the newly elected Social Democratic/Green government created a foundation, consisting of both government and industry, that not only paid reparations for the slave laborers who had not yet been compensated, mostly because they lived in Eastern Europe. The foundation also set aside funds for projects to remember the past in Eastern Europe, and called itself Memory, Responsibility and Future. In 1966, Améry quoted a man who tells him the reparations payments mean that Germans bear the Jews no grudges. Under those circumstances, it’s understandable that he refused to take those payments; he was waiting for the genuine remorse that did not come until after he died by his own hand. Half a century after Améry book was published, it would be hard to find a German today who does not wish to turn time around and 216 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core undo Nazi crimes – even if only to avoid the decades of national shame that followed. The remorse is genuine. But if reparations without apology may be blind, apologies without reparations may be empty. The U.S. Congress did not even issue an apology for slavery until 2008. The discussion about reparations for slavery, which had been held on and off since the ‘60s, was given new life with an essay by the writer Ta-Nehisi Coates. As he rightly wrote, ‘the idea of repara- tions is frightening not simply because we might lack the ability to pay. The idea of reparations threatens something much deeper – America’s heritage, history, and standing in the world’.4 Those who oppose American reparations for slavery have seldom responded directly to that claim, but they’re quick to dismiss the German precedent by pointing out the differences between the two cases. Their arguments turn on the justice as well as the difficulty of assessing claims made on the basis of a crime that occurred genera- tions ago. Any serious discussion of American reparations for slavery must acknowledge two facts: 1. America’s wealth is intrinsically bound up with profits from slavery, from the plantations of the South to the factories of the North. Earlier histories of slavery portrayed it as a premodern, agrarian insti- tution. Recent scholarship has shown, however, that slavery was a major engine of the growth of the modern American and British economies. Cotton was as central to the nineteenth-century economy as oil is to the economy today. It wasn’t just the raw material for the nineteenth century’s most successful industry, the textile mills that were as profitable in Manchester, New Hampshire, as in Manchester, England. Cotton also drove increasing demand for iron goods, rope, furniture, and shoes. Apart from the products pro- duced by their labor, enslaved people themselves made up 20 percent of America’s wealth. As cotton production boomed, the separation of enslaved families became central to the slave system. Slaves were torn from their families because they fetched twice as much in New Orleans as they did in Virginia. Less obvious but more insidious was the way that bonds using those slaves as collateral enriched inves- tors all over the world. The historian Edward Baptist showed that torture of slaves was not the product of accidental sadism nor even 4 Ta-Nehisi Coates, ‘The Case for Reparations’, The Atlantic (https:// www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/ 361631/, 2014). 217 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/, 2014 https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/, 2014 https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/, 2014 https://www.cambridge.org/core a matter of punishment for alleged infractions. It was a central factor of production, forcing enslaved men and women to labor at inhuman speeds. ‘The whip’, he concludes, ‘was as important to making cotton grow as sunshine and rain’.5 2. Chattel slavery was abolished in 1865, but it was replaced by other forms of subjugation that were not just a function of custom and prejudice but a matter of law. Long before the Civil War, some Quaker communities made mem- bership contingent on compensating one’s former slaves. Yale presi- dent Timothy Dwight wrote, ‘It is in vain to allege that our ancestors brought them hither, and not we … We inherit our ample patrimony with all its incumbrances, and are bound to pay the debts of our an- cestors … To give [slaves] liberty, and stop here, is to entail upon them a curse’. As the war drew to its bloody close, there was initial support for the idea that African Americans were owed some com- pensation for generations of forced labor, support that led to the initial declaration that each freedman would be offered forty acres of land and a mule, and almost a million acres of Southern land were set aside for this purpose. Had it been realized, it would have been an act of reparation for the thousands of acres those African Americans had worked, under the lash, without pay. Moreover, the vision of small, independent farmers exactly fit Jefferson’s concep- tion of the ideal conditions for a democratic republic. But Jefferson’s vision had been replaced by reveries of profit in the world cotton market. Both North and South preferred large planta- tions producing for export to self-sufficient small farmers. Moreover, President Andrew Johnson was keen on restoring the rights and properties of the Southern planters who’d always had his sympathy. Not half a year after Lincoln’s murder, Johnson over- turned every order that had granted land to freed people and returned it to the planters who had started the war. Both neoslavery and terror were instruments white Southerners used to wipe out the gains of Reconstruction. In the absence of federal troops and Northern engagement, Southern states fiercely en- forced the laws known as the Black Codes, which were largely suc- cessful attempts to evade the Thirteenth Amendment, which had 5 Edward Baptist, ‘Picking Up Cotton Under the Pushing System’, Slate (https://slate.com/human-interest/2015/08/slavery-under-the-pushing- system-why-systematic-violence-became-a-necessity.html, 2015). 218 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://slate.com/human-interest/2015/08/slavery-under-the-pushing-system-why-systematic-violence-became-a-necessity.html, 2015 https://slate.com/human-interest/2015/08/slavery-under-the-pushing-system-why-systematic-violence-became-a-necessity.html, 2015 https://www.cambridge.org/core outlawed slavery ‘except as punishment for a crime whereof the party shall have been duly convicted’. In the warped justice system of the postwar South, nothing was easier than inventing crimes and duly convicting African Americans of them. Most were arrested under de- liberately obscure vagrancy laws, according to which black persons unable to immediately prove they were currently employed by a white person could be charged, convicted, and sentenced to hard labor. Offenses such as spitting, selling produce after dark, walking next to a railroad, and talking loudly near a white woman could also result in prison terms. Historian Douglas Blackmon has shown that the system of neoslav- ery, was more brutal than the chattel slavery which preceded it. Under the old system, a chattel slave was the owner’s property. Having made a considerable investment in a black human being, the enslaver had an economic interest in preserving that investment by upholding minimal standards of nutrition and health. Under the new system, convicts were not owned but merely leased by state prisons to private corporations that mined coal, forged steel, or built bricks. In some Alabama prison camps the mortality rate was 40 percent. If a convict died from malnutrition, lashing, overwork, or disease, the corporation could always get another. The timing and scale of arrests were repeatedly correlated with the demand for cheap labor. Just before harvest time, for example, the number of arrests increased dramatically. Focusing on such policies, and the less brutal but still damaging ones that replaced them in the early 20th century, removes the first ob- jection raised concerning reparations for African Americans: How can anyone determine to whom reparations are owed? Here there’s no need to trace lines back to the mid-19th century. If it can be proved that legal measures created to subjugate African Americans persisted a century after slavery was abolished, the debt that was owed to enslaved people should be paid to their heirs. The evidence for those claims was overlooked only because, for too many Americans, the period between the Emancipation Proclamation and the Montgomery bus boycott is simply blank. Recent research allows us to fill in that blank. Reparations, Coates argued, would be the full acceptance of our collective biography and its consequences. ‘More important than any single check cut to any African American, the payment of repara- tions would represent America’s maturation out of the childhood myth of its innocence into a wisdom worthy of its founders’.6 From 6 Op. cit. note 4. 219 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core myth to wisdom: it’s a matter of growing up. I have argued elsewhere that a healthy adult relationship to your nation is like a healthy rela- tionship to your parents. As children, we tend to accept whatever they tell and give us; what other choice do we have? That lack of choice often leads us, in adolescence, to reject our parents’ world(s) entirely. A grownup relationship to your parents involves sifting through all the things they taught you and deciding what you want to keep as your own, and pass on to further generations, and what you’d rather reject. We need to treat our national and cultural histories similarly. Another argument against reparations is that they support a culture of victimhood that is unhealthy for all. As I’ve argued elsewhere, a culture of victimhood is indeed problematic. But those objections can become reasons to support reparations, as long as that support is properly grounded. Proper grounding would come with an apology and a full description of the wrong that was done. Unlike welfare or affirmative action, reparations would be seen as a straight- forward payment for an overdue debt. If our forebears failed to pay it, the responsibility to do so devolves on those of us who benefit from that failure, whether the benefits come directly from wealth or other privileges gained from belonging to the white majority of a powerful nation. Other means of addressing racial inequality have proved problematic. First, it’s not clear that affirmative action pro- grams help those most in need of support. Giving preference in edu- cation or employment to members of disempowered groups so long as it’s arguable they are equally qualified necessarily benefits the best qualified members of those groups, not those who need basic remed- ial education and other forms of support. Moreover, even when they have been faithfully applied, those programs can harm even those they are designed to benefit. suspicion infects relationships between members of different groups, feeding resentment on one side and self-doubt on the other. Honest payment of a debt that both parties recognize avoids this. Sidestepping concepts like ‘trauma’ and ‘victim’, reparations are supported by simpler ideas of justice. And to those who argue that reparations look backward, while politics should look to the future, one simply has to look at contemporary United States and Britain to see how well ignoring the past has worked. Others have argued that people whose ancestors were slaveholders might be liable for reparations, but those who held no slaves are not. Now most nonblack Americans are descended from people who came to the country in the waves of immigration that began after the Civil War. Nevertheless, in taking on the benefits of citizenship, they took 220 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core on its responsibilities as well. It’s usually only first-generation immi- grants who consciously take on those responsibilities – if people fleeing poverty, or worse, reflect on such responsibilities at all. Most of us are citizens without active consent. We had no choice about the place where our mothers happened to give birth, and we could not possibly consent to it – any more than we could consent to being born. Some of the most important things that determine our lives are entirely contingent, in ways that can be tragic or wonder- ful. We may begin by understanding our debts to the past by analogy with familial inheritances, but our responsibility to our nation’s past is political. To be a citizen is not merely to take responsibility for your country’s history since the moment you, or your ancestors, claimed its citizenship. Political identity cannot merely be a matter of acquir- ing the benefits that accrue to possessing one passport or another. Though the individuals responsible for slavery and all that followed are long gone, many of the corporate entities, public and private, that legalized and profited from slavery still exist. So do descendants of those who still suffer discrimination because they are part of a group that was brought to America in chains. So long as they live in a society built on injustice, even those who have not incurred guilt are responsible for correcting it. A final objection is that the payment of reparations is decisive; a majority of white Americans and Britons are against it. (Though support for reparations have increased, in the US, in the past few years, as consciousness of the history of neoslavery has increased.) More importantly: So were the vast majority of Germans in the 1950s. Adenauer could muster the votes in favor of reparations only by going outside his own conservative Christian Democratic Union and appealing to the Social Democrats. Outside pressure from the United States played a central role in persuading Adenauer that sig- nificant reparations were necessary to gain readmission to what was called the family of civilized nations. Some have suggested solving problems of racial inequality by insisting on social programs that would benefit all, as a way of widening general support. And as a Social Democrat, or democratic socialist, I am certainly in favor of systems that guarantee the right to health care, education, parental leave, fair working conditions, and yes, even paid vacation as a matter of right, not benefit. Still I want to propose a thought experiment: what if all those were guar- anteed, as human rights, to every citizen. Would descendants of slaves be owed something more? Contrast this question with another. A Holocaust survivor who chose to remain in Germany after the war – and some did – would 221 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core receive the same palette of social services as her ex-Nazi neighbors. Before Germany’s Economic Miracle, those services were limited, but as the 1960s brought prosperity, their range expanded. Would we think justice served if the survivor were guaranteed the same eco- nomic and social rights as the rest of the nation, or would we think she deserved something more for the pain and terror most of the nation inflicted on her? No compensation could redeem the loss of her parents or children. Still, something more than regular social ser- vices – regarded as a right for everyone – seems owed to her for the wrong she suffered. Something more than words of apology. Nor does it matter whether the wrong was intentional. The histor- ian Isaac Deutscher illustrated this with a parable: suppose a man jumped from a burning house in which many of his family had died, and hit a passing stranger, breaking her arms and legs in falling. If both people were reasonable, they would not become enemies. The jumper would try to console and compensate the inno- cent stranger, who would understand that she was a victim of acciden- tal circumstance. If they were irrational, they will be caught in an endless cycle of resentment, fear, and revenge. Deutscher used this parable to describe the justified claims of Israeli Jews and Palestinians in 1967, but it can be applied to many cases. To this day, Israel has refused to recognize the justice of Palestinian claims that began when Jews fled a burning Europe, and those claims have only become more valid under the long occupation. All the more urgent are the claims of the victims of American racism, whose per- petrators can hardly be compared with someone escaping a burning home. How far back do our obligations extend? Noting British prime minister Tony Blair’s apology for injustices committed against the Irish a century earlier, the author Robert Penn Warren asked if an apology should extend to Oliver Cromwell, who devastated Ireland in the seventeenth century. Penn Warren thought he was showing the absurdity of demands for historical justice, but the question is worth taking seriously. At the close of the twentieth century, the punk group The Pogues sang A curse upon you Oliver Cromwell You who raped our Motherland and hoped he was burning in hell as they sang it. As long as public memory is seething over unacknowledged injustice, the heirs of those who wreaked it should, at the least, acknowledge it. The philosopher Janna Thompson has argued that obligations to right historical wrongs persist indefinitely, if not eternally. She 222 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core believes that keeping transgenerational commitments, implicit or not, is the central moral and political good that gives nations the basis for trust. Philosophical theories of reparations depend on two different arguments: one emphasizing historical obligations, the other present needs. The case for American reparations for slavery can be made on both grounds – the historical obligation arising from the evil of slavery, as well as the present economic condition of most of its descendants. To those claims Thompson adds a third: ‘Maintaining a political society capable of acting justly in a world of nations depends essentially on a moral practice that requires each generation of citizens to take responsibility for keeping the commit- ments of its predecessors and repairing their injustice’.7 This way of grounding an obligation for reparations requires no appeal to guilt for the sins of long-dead ancestors, nor does it appeal to obliga- tions automatically conferred by citizenship. It can be applied very widely, though determining the exact obligations must be decided case by case. Particular circumstances always matter. 4. Conclusion If there’s no algorithm that can calculate how far obligations may go back in time, there is also none that can determine how wide they may reach across space. The claim that the United States owes reparations for slavery has been followed by the argument that European nations owe reparations to the Caribbean community, where slavery was often even more brutal and devastating than it was in the American South. Given the importance of the slave trade, and the products of slavery, for building nineteenth-century Europe’s wealth, no further argument might be needed. But the Caribbean community is right to focus on one fact that’s particularly galling: after abolishing slavery in its colonies in 1833, Britain paid 20 million pounds to com- pensate former enslavers for the loss of what they considered their property. The amount, at the time, was 40 percent of annual govern- ment income and had to be financed by private loan. British taxpayers paid the interest on that debt until 2015. Opponents of reparations will blanch: the case I’ve sketched does imply that there is no honest way to resist claims for reparations on a global scale. The difficulty of figuring out how to allot what to whom is no excuse for refusing to try. It’s probably impossible to 7 Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Justice (Cambridge: Polity Press, 2002). 223 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.cambridge.org/core calculate the amounts the United States owes to Native Americans, or European countries to their former colonies. Still, the U.S. could begin by restoring mineral rights on the reservations of the former, and Europeans by forgiving the debt of the latter. This could initiate the sort of cleansing Karl Jaspers thought necessary and inescapable for Germany in 1946. After reparations to Israel began, other Germans spoke of retrieving lost honor. Some have suggested that an apology for colonialism is more important than material compen- sation. The Indian politician and author Shashi Tharoor said that a symbolic payment of one pound a year would suffice as reparations for two hundred years of British rule in India. Reparations, he argued in a 2015 speech at the Oxford Union, are ‘not a tool to empower anybody, they are a tool for you to atone…The ability to ac- knowledge your wrong, to simply say sorry, will go a far, far longer way than some percentage of the GDP in the form of aid’.8 This is a remarkable statement, given Tharoor’s argument that Britain’s in- dustrial revolution was premised on the destruction of India’s pre- colonial economy; as in many other colonies, what had been a self-sufficient system was turned into a source of raw material, often through barbaric means. An apology for those abuses would, at the least, acknowledge that foreign aid to developing countries – of which European countries contribute twice as much, relative to GDP, as the United States – is a matter of obligation, not generosity. It might even restrain the development of the new forms of neo-colo- nialism that many corporations practice today. But for the reasons just sketched, I don’t believe that acknowledgment is enough. Opponents of reparations counter that the cost of all that debt would be impossible to raise, which makes them reluctant to even acknowledge it. Proposals to repair massive injustice are inevitably met with the claim that there isn’t enough money in the world to do so. Several tax- ation policies that might finance reparations have been proposed, but if we are serious about seeking the means to restore justice, the real elephant in the room is the arms industry. Too many of us continue to ignore it. If no one ever produced or profited from another weapon again, we’d still have enough to defend (or kill) ourselves many times over. As in the fable of the emperor’s new clothes, it takes a child to point out the obvious. When Malala Yousefzai’s life was threatened for demanding girls’ rights to education, the world took notice, and 8 See: https://www.independent.co.uk/news/uk/home-news/dr-shashi- tharoor-tells-the-oxford-union-why-britain-owes-reparations-for-colonising- india-in-viral-10407997.html. 224 Susan Neiman Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. https://www.independent.co.uk/news/uk/home-news/dr-shashi-tharoor-tells-the-oxford-union-why-britain-owes-reparations-for-colonising-india-in-viral-10407997.html https://www.independent.co.uk/news/uk/home-news/dr-shashi-tharoor-tells-the-oxford-union-why-britain-owes-reparations-for-colonising-india-in-viral-10407997.html https://www.independent.co.uk/news/uk/home-news/dr-shashi-tharoor-tells-the-oxford-union-why-britain-owes-reparations-for-colonising-india-in-viral-10407997.html https://www.cambridge.org/core she became the youngest person ever to receive the Nobel Peace Prize. Very little attention was paid a few years later, when she used her edu- cation to argue that all children have a right to twelve years of free education – and that this could be paid for by cutting military spend- ing for just eight days every year. That fact, confirmed for me by a Nobel laureate in economics, received little attention because we have no idea what to do with it. If there were an international vote about priorities, a motion to replace military spending with education – at least for eight days – would surely win hands down. We do not even know what structures would frame such a decision process.9 SUSAN NEIMAN (sneiman@einsteinforum.de) is director of the Einstein Forum. Born in Atlanta, Georgia, Neiman studied philosophy at Harvard and the Free University of Berlin. She was professor of philosophy at Yale University and Tel Aviv University before coming to the Einstein Forum in 2000. Her works include Slow Fire: Jewish Notes from Berlin, The Unity of Reason: Rereading Kant, Evil in Modern Thought, Moral Clarity: A Guide for Grown-up Idealists, Why Grow Up? Subversive Thoughts for an Infantile Age, and Learning from the Germans: Race and the Memory of Evil. 9 This paper was originally delivered as the 2019 Royal Institute of Philosophy/Royal Society of Edinburgh Lecture, on Monday 25 November. 225 Justice and History Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:39, subject to the Cambridge Core terms of use. mailto:sneiman@einsteinforum.de https://www.cambridge.org/core Justice and History Abstract Introduction Historic injustice Reparations America's wealth is intrinsically bound up with profits from slavery, from the plantations of the South to the factories of the North. Chattel slavery was abolished in 1865, but it was replaced by other forms of subjugation that were not just a function of custom and prejudice but a matter of law. Conclusion 
work_cm7zf66ngjdybed6irafx4efke	----	157 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. La justice administrative au brésil A justiça administrativa no brasil Ricardo Perlingeiro 1 RÉSUMÉ: Il s’agit d’une analyse descriptive de certains aspects du système de justice administrative brésilien, quant à la procédure administrative, au système judiciaire et à la procédure juridictionnelle, identifiant leurs aspects positifs et négatifs, de façon à servir de base à une étude comparée au regard des systèmes qui l’ont influencé, en Europe continentale et aux USA, et de ceux influencés par ces derniers en Ibéro-Amérique. MOTS-CLÉS: Procès équitable - Tribunal administratif - Droit compare. RESUMO: O texto contém uma análise descritiva de alguns aspectos do sistema de justiça administrativa brasileiro, quanto ao procedimento administrativo, sistema judiciário e processo judicial, identificando seus pontos positivos e negativos, de modo a servir de base para uma investigação comparada em face de sistemas que o influenciaram, na Europa continental e nos EUA, e daqueles que, por estes, foram igualmente influenciados no âmbito da Ibero-América. PALAVRAS-CHAVE: Processo justo – Tribunal administrativa – Direito comparado. 1 Juge fédéral de Rio de Janeiro. Professeur à l'université Estácio de Sá et à l'université fédérale Fluminense. 158 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. INTRODUCTION Il convient d’amorcer un dialogue entre les systèmes brésilien et français en ce qui concerne le contentieux administratif. En effet, dans ce domaine, la production scientifique comparée entre le Brésil et la France est proportionnellement minime, bien que le modèle brésilien de “justice administrative”, ait subi dans le passé l’influence de la France, avec son système dualiste de juridiction. En outre, même après que le modèle juridictionnel français ait succombé au Brésil, lors de l’instauration de la République, en 1891, remplacé par le modèle de juridiction unique, le droit administratif matériel français est encore une des sources d’inspiration de la doctrine et de la législation brésiliennes. 2 À ce propos, la présente étude a pour but de procéder à une analyse descriptive et ponctuelle du système de justice administrative brésilien, en ce qui concerne la procédure administrative non contentieuse l’organisation et la procédure juridictionnelle, en en relevant certains aspects positifs et négatifs, à partir des principes d’État de Droit et de protection juridictionnelle effective, tels que concrétisés par les matrices du droit administratif en Europe3 et de leur reflet dans certains modèles ibéro-américains, de façon à élaborer une étude comparée de ces systèmes avec le système français. Dans un premier temps, il convient de déterminer la portée et le contexte de la terminologie utilisée. L’expression “contentieux administratif” se rapporte aux réclamations ou aux contestations d’un particulier vis à vis des actes d’une autorité administrative. L’expression “juridiction administrative” sert à désigner la prestation juridictionnelle destinée à la résolution d’un litige administratif, et “justice administrative”, désigne les organes de l’État responsables de rendre la justice.4 2 RECOURS ADMINISTRATIF PRÉALABLE 2 PERLINGEIRO, Ricardo; BLANKE, Hermann-Josef; SOMMERMANN, Karl-Peter (Coords.). Código de jurisdição administrativa: o modelo alemão. Rio de Janeiro: Renovar, 2009. p. 65. 3 O direito francês, o direito inglês e o direito alemão (FROMONT, Michel. Droit administratif des Etats européens. Paris: PUF, 2006. p. 7). 4 UNIVERSITÉ FÉDÉRALE FLUMINENSE. Centre des Sciences du Pouvoir Judiciaire. Projeto Acadêmico do Programa de Pós-Graduação Justiça Administrativa – PPGJA-UFF. Niterói, 2008. 159 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. En principe, dans un État de Droit, le contentieux administratif doit être confié exclusivement à une juridiction; cependant, il est admis que le conflit soit préalablement soumis à l’Administration Publique elle-même, sans que, néanmoins, cela constitue une exception au principe d’accès à la justice (subordination de l’Administration au juge).5 Nous faisons ici référence à la technique des autorités administratives supérieures auprès desquelles les intéressés, lorsqu’ils sont contrariés par l’Administration, interjettent un recours non contentieux devant l’autorité administrative hiérarchiquement supérieure, comme cela se trouve dans la plupart des systèmes, et de façon encore plus marquante en Allemagne, où les recours ont un effet suspensif automatique et constituent une condition sine qua non à l’introduction d’une action juridictionnelle.6 Je me réfère également à la technique des Autorités Administratives Indépendantes où les recours non contentieux sont jugés par des agents publics qui, en dépit du fait d’être nommés directement par des membres du premier échelon de l’Administration, exercent leurs fonctions de façon indépendante, n’étant pas subordonnés hiérarchiquement, à la différence des “tribunaux administratifs” anglais, des “commissions de recours” suisses et des “chambres administratives” en Autriche.7 Au Brésil, ces deux techniques peuvent être observées et, respectant le principe de la protection juridictionnelle effective, elles constituent une possibilité pour les intéressés qui, même une fois exercée, n’exclut pas l’introduction simultanée d'actions visant à obtenir des mesures d’urgence. Le recours devant une autorité administrative supérieure, qui ne doit pas être confondu avec la réclamation préalable (très souvent indispensable à la constitution même du droit subjectif), est prévu dans la législation brésilienne de procédure administrative.8 Le recours devant une autorité administrative indépendante est semblable, par exemple, aux recours intentés devant le Conseil Administratif des Ressources Fiscales (CARF),9 les agences régulatrices,10 les Tribunaux des Comptes11 et, pourquoi pas, devant le Conseil National de Justice (CNJ).12 5 FROMONT, op. cit., p. 112-119. 6 Verwaltungsgerichtsordnung/VwGO (Code de Juridiction Administrative – Loi du 21 janvier 1960), §§ 68, 80. 7 FROMONT, op. cit. 8 Loi nº 9.784, du 29 janvier 1999, art. 56.. 9 Loi nº 11.941, du 27 mai 2009. 10Agence Nationale pour l’Aviation Civile – ANAC (Loi nº 11.182, du 27 septembre 2005); Agence Nationale des Eaux – ANA (Loi nº 9.984, du 17 juillet 2000); Agence Nationale pour l’Énergie Électrique – ANEEL (Loi nº 9.427, du 26 décembre 1996); Agence Nationale pour le Pétrole, le Gaz Naturel et les Bicombustibles – ANP (Loi nº 9.478, du 6 août 1997; Loi nº 9.990, du 21 juillet 2000; Loi nº 12.351, du 22 décembre 2010); Agence Nationale pour la Santé Supplémentaire – ANS (Loi nº 9.961, du 28 janvier 2000); Agence Nationale pour les Transports Terrestres – ANTT (Loi nº 10.233, du 5 juin 2001); Agence Nationale pour la Vigilance Sanitaire – ANVISA (Loi nº 9.782, du 26 janvier 1999). 160 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. 3 ORGANISATION DE LA JURIDICTION ADMINISTRATIVE La juridiction administrative proprement dite, substantiellement indépendante de l’Administration, fait l’objet d’une organisation que l’on peut classifier comme suit: (1) juridiction administrative ayant à la fois un rôle consultatif et un rôle contentieux, comme en France,13 aux Pays-Bas,14 en Italie,15 en Grèce,16 en Belgique17 et en Colombie,18 dont les Conseils d’État ont simultanément une fonction de cour suprême et d’organe consultatif; (2) juridiction administrative constituant un ordre juridictionnel autonome, avec une cour suprême de droit public spécifiquement, ayant un rôle uniquement contentieux, comme en Allemagne,19 en Autriche,20 en Suède21 et au Portugal;22 (3) juridiction administrative autonome de 1o et 2o degrés dépendante cependant d’une cour suprême unique, qui soit non seulement de droit public mais aussi de droit privé, comme en Espagne,23 en Suisse,24 en Hongrie25 et au Mexique;26 (4) juridiction administrative “privée”, connue également sous le nom de “juridiction unique” ou “système moniste”, qui comprend droit public et droit privé, et qui est éventuellement dotée d’organes spécialisés en contentieux administratif, typique des 11 Tribunal des Comptes de l’Union – TCU (Loi nº 8.443, du 16 juillet 1992). 12 Loi nº 11.364, du 26 octobre 2006. 13 Code de Justice Administrative, R. 122-15, R. 122-18 e R. 122-20. 14 Wet van 9 maart 1962, op de Raad van State (Loi du 9 mars 1962), art. 1º. 15 Legge 27 aprile 1982, n. 186 (Loi nº 186, du 27 avril 1982). 16 Νομοθετικού διατάγματος [Ν] 170/1973 (Décret Législatif nº 170/1973, modifié par les Lois nº 702/1977 et nº 1.470/1984 et codifié par le Décret nº 18/1989). 17 Constitution Belge (1993. Texte coordonné le 17 février 1994), art. 160; Loi du 23 décembre 1946 – Loi du Conseil d’État de Belgique (Loi du 23 décembre 1946). 18 Constitución Política de Colombia (Constitution du 20 juillet 1991), art. 237; Ley nº 1.437, de 18 de enero de 2011. 19 Verwaltungsgerichtsordnung/VwGO (Code de Juridiction Administrative – Loi du 21 janvier 1960), §§ 49 et 50. 20 Bundes-Verfassungsgesetz (Constitution du 1o octobre 1920), art. 130, 1. 21 Författning 1974 (Constitution de 1974. Approuvée le 1o janvier 1975), art. 1º, Chapitre 11. 22 Constitution de la République Portugaise, du 2 avril 1976, art. 209, 1, b; Code de Procédure des Tribunaux Administratifs (Loi nº 4-A, du 19 février 2003). 23 Constitución Española, de 29 de diciembre de 1978, art. 106, 1. 24 Verfassung der Schweiz (Constitution approuvée par référendum le 12 mars 2000), art. 29 a, 191 et 191 b. 25 Bírósági szervezet szóló 1997 (Loi de l’Organisation Judiciaire de 1997). 26 Constitución Política de los Estados Unidos Mexicanos, de 5 de febrero de 1917, art. 94; Ley Orgánica del Tribunal Federal de Justicia Fiscal y Administrativa (Dernière réforme publiée le 3 juin 2011). 161 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. systèmes de common law, comme en Angleterre,27 en Irlande,28 au Danemark,29 mais également présents en Argentine,30 au Chili,31 au Costa Rica,32 au Pérou33 et au Venezuela.34 Curieusement, le droit brésilien connaît les quatre modalités d’organisation de la juridiction administrative. Avant la République on se rapprochait de la juridiction administrative avec des fonctions à la fois consultative et contentieuse, malgré le fait que le Conseil d’État de l’Empire ait été calqué sur la première version du Conseil d’État français, avec une “justice retenue” entre les mains de l’Empereur, sans fonctions réellement juridictionnelles ou déléguées.35 Ce n’est qu’avec la Constitution de 1891 que le droit brésilien a connu la juridiction administrative, mais, à cette époque, elle possédait des caractéristiques propres aux systèmes du common law, avec des tribunaux amenés à connaître autant du droit public que du droit privé. Ce système de “juridiction unique” qui prédomine encore aujourd’hui, contient un certain niveau de spécialisation en droit public, ainsi qu’il en est question dans les “Varas de Fazenda Pública” (Chambres des finances publiques), de première instance, et dans les « sections » ou “Chambres” au niveau des cours d’appel.36 En ce qui concerne la Justice Fédérale de 1º et 2º Degrés, qui comprend une juridiction administrative compétente pour l’Administration Publique fédérale, 37 il est permis de dire que ce modèle ressemble à l’espagnol et au suisse, en ce qu’elle est soumise à une même cour suprême, qui, connaît également du droit privé: le « Superior Tribunal de Justiça » (STJ Cour Suprême de Justice).38 En ce qui concerne la justice électorale, à l’inverse, le modèle est rigoureusement identique aux modèles allemand et portugais, avec une juridiction 27 ZILLER, Jacques. Administrations comparées. Les systèmes politico-administratifs de l’Europe des Douze. Paris: Montchrestien, 1993. p. 441. 28 FROMONT, op. cit. 29 ZILLER, op. cit. 30 Constitución Nacional (Sancionada por el congreso general constituyente el 1° de mayo de 1853, reformada y concordada por la convención nacional ad hoc el 25 de septiembre de 1860 y con las reformas de las convenciones de 1866, 1898, 1957 y 1994), art. 116. 31 Código Orgánico de Tribunales (Ley nº 7.421, de 15 de junio de 1943), art. 5º, 2. 32 Constitución Política de la República de Costa Rica de 1949 (Actualizada hasta Ley n° 8.365, del 15 de julio del 2003), arts. 152 e 153; Ley Orgánica del Poder Judicial (Ley nº 7.333/1993, modificada por la Ley nº 7.728, de 15 de diciembre de 1997). 33 Constitución Política del Perú de 1993, art. 139. 34 Constitución de la República Bolivariana de Venezuela de 1999, art. 259. 35 PERLINGEIRO; BLANKE; SOMMERMANN, op. cit., p. 65. 36 Regimento Interno do Superior Tribunal de Justiça (Règlement Interne du Tribunal Supérieur de Justice), art. 9, § 1º; Regimento Interno do Tribunal Regional Federal da 2ª Região (Règlement Interne du Tribunal Régional Fédéral de la 2ª Région), art. 2º, III, § 4º, et art. 13, III; Código de Organização e Divisão Judiciárias do Estado do Rio de Janeiro (Code de l’Organisation et de la Division Judiciaires de l’État de Rio de Janeiro), arts. 94, III, et 97. 37 Constitution de la République Fédérale du Brésil, du 5 octobre 1988, art. 109. 38 Ibid., art. 105. 162 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. administrative autonome et, au sommet, une cour suprême spécifique: le Tribunal Supérieur Electoral (TSE).39 4 PORTÉE DE LA JURIDICTION ADMINISTRATIVE En ce qui concerne la portée de la justice administrative, dans un premier lieu, nous devons nous interroger à propos du rôle primordial de ses principes et de ses normes spécifiques. Pour quelle raison le législateur devrait-il traiter de façon différente l’organisation des tribunaux responsables de rendre la justice administrative? Pour quelle raison le législateur devrait-il disposer de façon spécifique en ce qui concerne la procédure juridictionnelle relative aux causes soumises à la justice administrative? En effet, l’institution d’organes juridictionnels spécialisés compatibles avec une conception de justice de qualité et la consécration de principes et de règles spécifiques de justice administrative, qui considèrent, d’un côté, la fragilité du citoyen par rapport à l’Administration et, de l’autre, la pondération entre l’intérêt public et l’intérêt privé, sont des mesures dont l’objectif est d’assurer –en même temps- une protection juridictionnelle effective des droits du citoyen et du contrôle de la légalité de l’Administration Publique. De ce fait, quelles sont, exactement, les exigences qui justifient l’existence d’une justice administrative? En général, en ce qui concerne la définition de la compétence de la juridiction administrative, les systèmes d’Europe et d’Amérique Latine, appliquent les critères suivants: (1) celui des causes de droit administratif, où les conflits peuvent impliquer des autorités administratives ou des entités privées dans l’exercice de fonctions publiques, ainsi qu’il en est question en France,40 en Espagne,41 au Portugal,42 en Grèce,43 au Costa Rica,44 au Pérou, au Venezuela,45 en Colombie46 et en Argentine;47 (2) celui des causes relatives aux actes ou actions administratives, excluant la responsabilité civile ou les contrats administratifs, comme 39 Ibid., art. 118. 40 Code de Justice Administrative, art. L. 211-1. 41 Ley nº 23, de 7 de julio de 1998, art. 1º, 1. 42 Estatuto dos Tribunais Administrativos e Fiscais (Statut juridique des Tribunaux Administratifs et Fiscaux), (Loi nº 13, du 31 janvier 2002), art. 4º. 43 Σύνταγμα της Ελλάδας (Constitution du 9 juin 1975), arts. 94 et 95; Πράξη 1406/1983 (Loi nº 1.406, de 1983). 44 Código Procesal Contencioso-Administrativo (Ley nº 8.508, de 1º de enero de 2008), art. 1º. 45 Constitución de la República Bolivariana de Venezuela de 1999, art. 259. 46 Ley nº 1.437, de 18 de enero de 2011, art. 2º. 47 Ley Contencioso Administrativo de la Provincia de Buenos Aires (Ley nº 12.008, de 1º de junio de 1999), art. 1º. 163 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. en Allemagne,48 en Autriche49 et en Suisse;50 (3) celui des causes circonscrites aux intérêts légitimes, sauf en ce qui concerne les droits subjectifs, comme en Italie51 et en Belgique;52 (4) celui des causes de droit public ou privé, dans la mesure où c’est dans l’intérêt de l’Administration, ceci étant typique des systèmes de juridiction moniste, comme en Angleterre, en Irlande, en Norvège, au Danemark,53 au Chili54 et au Mexique.55 Sur ce point également, le système brésilien apparaît hybride. En général, en cohérence avec son système moniste de juridiction, prévaut le critère de l’intérêt de l’Administration, indépendamment de la nature publique ou privée de la cause, à l’exemple de la compétence des Chambres des Finances Publiques et de la Justice Fédérale, et de l’application de normes procédurales spécifiques, comme c’est le cas du régime spécial pour l’exécution des jugements obtenus en défaveur de l’Administration (precatório judicial),56 ou de l’existence de délais allongés pour la défense de l’Administration. 57 Cependant on trouve, enraciné dans le droit brésilien, lorsqu’il est question de la procédure juridictionnelle de référé “mandado de segurança”,58 une situation analogue à celle du système allemand, où l’intéressé peut contester les actes administratifs, même s’ils émanent d’entités privées exerçant un pouvoir public, sans pour autant pouvoir prétendre, devant le même juge, à une quelconque indemnisation. Par ailleurs, le “mandado de segurança” brésilien mériterait un chapitre à part, considérant son évidente crise d’identité: premièrement, parce qu’il est inspiré des writs, aujourd’hui substitués par la claim for judicial review;59 deuxièmement, de par ses racines dans l’amparo mexicain (juicio de amparo), qui est clairement une procédure de juridiction constitutionnelle; troisièmement, à cause de ses évidentes caractéristiques du recours en excès de pouvoir français, de l’époque à laquelle cette 48 Verwaltungsgerichtsordnung/VwGO (Código de Jurisdição Administrativa – Loi du 21 janvier 1960), § 40. 49 FROMONT, op. cit., p. 147. 50 Bundesgerichtsgesetz, BGG (Loi du 17 juin 2005); Bundesgesetz über das Verwaltungsverfahren (Loi du 20 décembre 1968), art. 5º. 51 Costituzione della Repubblica Italiana, de 27 de diciembre de 1947, art. 103. 52 FROMONT, op. cit., p. 150. 53 Ibid., p. 152-156. 54 Código Orgánico de Tribunales (Ley nº 7.421, de 15 de junio de 1943), art. 48. 55 Ley Orgánica del Tribunal Federal de Justicia Fiscal y Administrativa (dernière réforme publiée le 3 juin 2011), art. 14. 56 C’est-à dire injonction de payer obtenue en justice contre l'administration (ndt). 57 Constitution de la République Fédérale du Brésil, du 5 octobre 1988, arts. 100 et 109; Código de Processo Civil (Code de Procédure Civile), (Loi no 5.869, du 11 janvier 1973), arts. 191 e 730. 58 Loi nº 12.016, du 7 août 2009. (Procédure judiciaire spécifique permettant de contester des actes de l’Administration, ndt). 59 FROMONT, op. cit., p. 191. 164 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. mesure se limitait à l’annulation de l’acte administratif;60 finalement, parce qu’il se trouve actuellement inséré dans un système processuel et constitutionnel, au sein duquel, indépendamment de la procédure juridictionnelle choisie, l’intéressé peut formuler toute prétention à l’encontre l’Administration. 5 JUGES RENDANT LA JUSTICE ADMINISTRATIVE Des prérogatives d’indépendance personnelle et institutionnelle doivent être assurées à la fois aux agents publics et à la structure juridictionnelle ayant pour mission de protéger les droits et les intérêts relevant de la juridiction administrative. Ainsi, les juges doivent être inamovibles et nommés à vie, et leur rémunération doit être juste et adéquate. La sélection, la carrière et la discipline des juges doivent être confiées à un organisme qui garantisse son indépendance, afin d’éviter une structure juridictionnelle verticale, marquée par le carriérisme et la subordination hiérarchique entre les juges.61 En outre, l’entrée dans la carrière de juge – quel que soit le degré de juridiction – ne doit avoir lieu que par le biais d’un procédé ouvert, objectif et transparent, basé sur la qualification technique et la capacité professionnelle de l’intéressé. Ces principes, contenus dans le Code Modèle de Procédures Administratives – juridictionnelles et non contentieuses – pour l’Ibéro-Amérique,62 sont partiellement concrétisés par la Constitution brésilienne. En ce qui concerne le droit brésilien, la nomination comme juge du premier degré est rendue possible à tout citoyen se soumettant à un concours public sur épreuves et sur titres. Les juges du premier degré parviennent au second degré par le biais d’une promotion, selon le critère du mérite ou de l’ancienneté alternativement, il est, en outre, exigé d’eux un perfectionnement constant auprès des écoles de Magistrature. Certains postes disponibles au second degré sont attribués selon un critère politique, suivant les propositions effectuées par des ordres professionnels (Ordre des Avocats du Brésil – OAB et Ministère Public), puis par les tribunaux, la nomination finale dépendant du chef de l’Exécutif. En ce qui concerne la Cour Suprême de Justice « Superior Tribunal de Justiça » le critère est similaire, bien 60 Ibid., p. 164-168. 61 ZAFFARONI, Eugenio Raúl. Poder Judiciário. São Paulo: Revista dos Tribunais, 1995. 62 Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América, arts. 26, 27, 28 et 29 (INSTITUT IBÉRO-AMERICAIN DE DROIT PROCESSUEL. Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América. Buenos Aires: IIDP, 2012). 165 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. qu’existe en outre la garantie de l’intervention du Parlement.63 Au Brésil, l’exercice de la juridiction administrative par un juge non professionnel n’est pas prévue, sauf en ce qui concerne les « juizados especiais »64 mais bien que cette modalité bénéficie d’une autorisation constitutionnelle à l’art. 98, I et § 1º, elle n’a pas encore été transposée par une loi d’application. La Constitution de 1988, à l’art. 96 II, a doté les Tribunaux d’un pouvoir d’auto- organisation consistant en l’élection de leurs organes directifs, en l’élaboration de leurs règlements internes, en l’organisation de leurs secrétariats, des services auxiliaires et en la nomination des juges qui leur sont rattachés, qu’il s’agisse de pourvoir des postes de magistrats de carrière de cette juridiction en question, ou de pourvoir des postes nécessaires à l’administration de la Justice. L’autonomie administrative et financière se matérialise, de même, par la concession aux tribunaux du pouvoir d’élaborer leurs propositions budgétaires dans les limites établies avec les autres Pouvoirs, conformément à la Loi des Directives Budgétaires. Afin d’écarter la possibilité de dépendance externe, la Constitution à l’art. 95, établit, vis-à-vis des juges, des interdictions et des prérogatives,65 telles que: la nomination à vie, garantissant au juge la permanence dans ses fonctions jusqu’à l’âge de 70 ans, sauf en cas de condamnation définitive; l’inamovibilité, qui empêche que le juge puisse être transféré vers une autre juridiction, ce qui ne pourrait survenir que pour des motifs d’intérêt public et par décision du Tribunal à la majorité ou du Conseil National de Justice; et, finalement, l’irréductibilité de son salaire. Cependant, l’effectivité de ces prérogatives institutionnelles et personnelles de la magistrature est remise en cause, comme, par exemple, en fonction de la nature du processus de constitution du budget, il est permis que le Pouvoir Exécutif puisse exercer une influence sur la concession de ressources au Judiciaire, permettant que le caractère irréductible de la rémunération soit à peine nominal, sans que le maintien de la valeur réelle ne soit assuré. D’un point de vue interne, malgré le fait que les juges se sentent pleinement indépendants, la 63 Constitution de la République fédérale du Brésil, du 5 octobre 1988, art. 104. 64 Juridiction des petites causes équivalent partiel des tribunaux d’instance (ndt). 65 Aux juges sont appliquées les interdictions suivantes: I – exercer, même en régime de disponibilité, à un autre poste ou fonction, n’étant celle de magistrat; II – la perception, à n’importe quel titre et sous aucun prétexte, de frais de justice ou de participation au procès, tout comme la réception d’aides ou de contributions de personnes physiques, entités publiques ou privées; III – la participation à des activités politiques ou reliées à des partis politiques ; IV – l’exercice de la fonction d’avocat au cours du jugement ou dans le tribunal duquel il s’est démis, avant que se soient écoulés trois ans de la démission du poste pour exonération ou retraite. 166 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. solution selon laquelle les juges de 2º degré puissent détenir un pouvoir disciplinaire et de sélection des juges du 1º degré n’est pas idéale.66 Aux yeux de la société, cela peut donner l’impression d’une structure hiérarchique et carriériste, mettant en cause l’indépendance et l’impartialité, comme lorsque, par exemple, un juge de 1º degré se prononçant à propos de la légalité des actes administratifs de la Cour (2º degré) à laquelle il est rattaché ou encore des litiges intéressant ses membres. 6 LA NÉCESSITÉ DE REPRÉSENTATION PAR AVOCAT DEVANT LA JURIDICTION ADMINISTRATIVE La présence de l’avocat, devant la justice administrative, doit être considérée comme un devoir, et non comme un droit, y compris en ce qui concerne l’Administration, qui a besoin de se faire représenter par un professionnel du Droit. Le caractère obligatoire de la présence d’un avocat devant la juridiction administrative est justifié par la complexité des litiges de droit public. De cette façon, s’agissant d’un devoir, l’État devra concéder le bénéfice de l’assistance juridique gratuite à ceux qui n’ont pas les moyens d’y subvenir.67 Au Brésil, malgré le fait que la présence de l’avocat ne soit facultative que devant les « Juizados Especiais », en réalité, l’intéressé a toujours à sa portée un conseiller juridique, même s’il s’agit d’un fonctionnaire du Judiciaire, et le système de gratuité de justice (avocat et frais) fonctionne de façon assez efficace et étendue au sein de la juridiction administrative.68 7 LES PRÉTENTIONS RECEVABLES ET L’ÉTENDUE DU CONTRÔLE JURIDICTIONNEL S’agissant de son étendue, la compétence de la juridiction administrative doit être pleine, car elle doit être capable de réaliser intégralement le droit subjectif allégué et, doit donc, correspondre, si besoin, à une déclaration, annulation, injonct ion de faire, de ne pas faire, de donner ou de payer, y compris par le biais de mesures d’urgence ou d’exécution 66 ZAFFARONI, , Eugenio Raúl. Poder Judiciário. São Paulo: Revista dos Tribunais, 1995. 67 INSTITUT IBERO-AMÉRICAIN DE DROIT PROCESSUEL. Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América, op. cit., arts. 32, 33 e 34. 68 Constitution de la République Fédérale du Brésil, du 5 octobre 1988, art. 5º, LXXIV; Loi nº 1.060, du 5 février 1950. 167 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. forcée.69 De cette plénitude de juridiction dépendent une protection juridictionnelle effective et l’État de Droit, dépassant ainsi le dogme selon lequel le juge ne peut imposer à l’Administration des obligations de faire, ni lui appliquer des amendes punitives ou coercitives (contempt of court civil et criminal), ni même exproprier ou mettre en gage des biens publics non essentiels.70 Le caractère effectif de la juridiction administrative n’est limité que par l’intérêt public, s’il est ponctuellement allégué et démontré, en observant les garanties d’une procédure légale, par le biais de mesures compensatoires en faveur de l’intéressé. Le droit brésilien a beaucoup évolué à ce niveau-là. Le Code de Procédure Civile, applicable subsidiairement à la juridiction administrative, admet que toute sorte de prétention soit portée en justice à l’encontre de l’Administration. Des mesures d’urgence et d’exécution forcée sont prévues et il y a même la possibilité, en cas de stricte nécessité, d’obtenir le paiement d’une somme en espèces, conformément à la jurisprudence de la Cour Suprême Fédérale.71 Cependant, la difficulté majeure repose sur la pratique de l’Administration de remettre en cause les mesures d’exécution forcée sur la simple allégation d’atteinte à l’intérêt public, par le procédé de “suspension de mesure provisoire” ou de “suspension de l’exécution du jugement”, ce qui ne s’encadre pas exactement avec le principe du contradictoire.72 L’exclusion de certains actes publics du contrôle juridictionnel continue à se vérifier dans la culture de certains systèmes, même si, sur le plan dogmatique, ne puisse plus être soutenue l’existence d’une catégorie spéciale d’actes qui, ontologiquement ne diffèrent d’ailleurs en rien des autres actes émis par l’Administration. 73 Il est indéniable que l’impossibilité de soumettre au contrôle juridictionnel le contenu politique d’actes publics n’est qu’un mythe. Cette question mérite d’être revisitée en partant des principes fondamentaux de juridiction administrative, en parallèle avec ceux de la juridiction constitutionnelle. Au Brésil, le juge “bouche de la loi” est, en fait, une figure de rhétorique.74 La réitération de la judiciarisation des politiques publiques de santé, affirmée par les différentes 69 INSTITUT IBÉRO-AMÉRICAIN DE DROIT PROCESSUEL. Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América, op. cit., Exposition de Motifs. 70 Ibid., Exposition de Motifs. 71 BRÉSIL. Cour Suprême Fédérale. AI 59.7182. 2ª Classe, Rapporteur min. Cezar Peluzo, DJ 6.11.2006. 72 Loi nº 8.437, du 30 juin 1992, art. 4º. 73 WOLFF, Hans J.; BACHOF, Otto; STOBER, Rolf. Direito administrativo.Traduction Antônio F. de Sousa. Lisbonne: Fondation Calouste Gulbenkian, 2006. p. 247; GARCÍA DE ENTERRÍA, Eduardo. La lucha contra las inmunidades del poder. 3. ed. Madri: Civitas, 1995. p. 70-78). 74 SADEK, Maria Teresa. Judiciário e arena pública: um olhar a partir da ciência política. In: GRINOVER, Ada Pellegrini; WATANABE, Kazuo (Orgs.). O controle jurisdicional de políticas públicas. 1. ed. Rio de Janeiro: Forense, 2011. p. 1-33. 168 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. sphères du Judiciaire brésilien, aux niveaux constitutionnel ou administratif, est un parfait exemple du fait qu’aucun acte émis par le pouvoir public ne peut être considéré à l'abri de la Justice.75 Le contrôle juridictionnel des activités administratives doit englober, non seulement la forme et de contenu de l’acte administratif, mais aussi son caractère discrétionnaire s’il dépasse les limites autorisées par la loi, s’il dévie de sa finalité ou s’il porte atteinte aux droits ou principes fondamentaux, comme ceux de l’égalité, de la sécurité juridique, de la confiance légitime, de la proportionnalité et du raisonnable.76 Dans ce contexte, il est attendu de l’Administration un comportement au premier chef éthique et conforme à l’État de Droit, ayant comme principal objectif le respect des droits fondamentaux, et qu’elle agisse en obéissant aux principes du droit administratif, parmi lesquels je souligne les suivants. 8 PRINCIPE DE LÉGALITÉ Le principe de légalité vise la soumission de l’Administration au droit, et le fait d’être prévu par les lois de procédure administrative tend à le renforcer, ainsi qu’il en est question dans la loi péruvienne de procédures administratives: “Las autoridades administrativas deben actuar con respeto a la Constitución, la ley y al derecho, dentro de las facultades que le estén atribuidas y de acuerdo con los fines para los que les fueron conferidas.”77 En outre, il convient de relever que l’Administration doit veiller non seulement à la légalité ou à la constitutionnalité, mais aussi à la conventionnalité, et est ainsi autorisée à ne pas exécuter une loi ou une norme administrative à laquelle elle est soumise si elle la considère anticonventionnelle ou anticonstitutionnelle, tant que, sans préjudice du principe de subordination hiérarchique, elle en réfère aux organes de contrôle compétents afin que ceux- ci en déclarent l’anticonventionnalité ou l’inconstitutionnalité. 78 Cependant, entre nous, en 75 BRÉSIL. Cour Suprême Fédérale, Plenum. SL 47 AgR. Rapporteur min. Gilmar Mendes, j. 17.3.2010, DJ 30.4.2010. 76 INSTITUT IBÉRO-AMÉRICAIN DE DROIT PROCESSUEL. Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América, op. cit., art., art. 25. 77 PÉROU. Ley del Procedimiento Administrativo General (Lei nº 27.444, de 10 de abril de 2001), art. IV, 1.1. 78 Henrique Savonitti Miranda met l’accent sur la controverse doctrinale au Brésil à propos de la possibilité que l’Administration refuse, simplement, d’exécuter des lois ou actes normatifs anticonstitutionnels. À faveur: Carlos Maximiliano; Francisco Campos; José Celso de Mello Filho; Caio Tácito; Manoel Gonçalves Ferreira Filho; Miguel Reale; Hely Lopes Meirelles. Contre: Celso Antônio Bandeira de Mello; Gilmar Ferreira Mendes; 169 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. dépit de l’absence de prévision législative ou constitutionnelle expresse, s’impose à l’Administration l’initiative de rendre opérationnel de façon efficace ce procédé de rapport aux organes compétents, tant n’est pas justifiable son omission ou sa soumissio n, dans l’attente d’une intervention juridictionnelle, nationale ou internationale, à la loi anticonstitutionnelle ou anticonventionnelle. À propos de l’absence d’une loi nationale relative au contrôle de la conventionalité, la Cour Interaméricaine des Droits Humains a décidé, litteris: En relación con las prácticas judiciales, este Tribunal ha establecido en su jurisprudencia que es consciente de que los jueces y tribunales internos están sujetos al imperio de la ley y, por ello, están obligados a aplicar las disposiciones vigentes en el ordenamiento jurídico. Pero cuando un Estado ha ratificado un tratado internacional como la Convención Americana, sus jueces, como parte del aparato del Estado, también están sometidos a ella, lo que les obliga a velar porque los efectos de las disposiciones de la Convención no se vean mermados por la aplicación de leyes contrarias a su objeto y fin, que desde un inicio carecen de efectos jurídicos. En otras palabras, el Poder Judicial debe ejercer un “control de convencionalidad” ex officio entre las normas internas y la Convención Americana, evidentemente en el marco de sus respectivas competencias y de las regulaciones procesales correspondientes. En esta tarea, el Poder Judicial debe tener en cuenta no solamente el tratado, sino también la interpretación que del mismo ha hecho la Corte Interamericana, intérprete última de la Convención Americana. De tal manera, es necesario que las interpretaciones constitucionales y legislativas referidas a los criterios de competencia material y personal de la jurisdicción militar en México, se adecuen a los principios establecidos en la jurisprudencia de este Tribunal, los cuales han sido reiterados en el presente caso. Bajo ese entendido, este Tribunal considera que no es necesario ordenar la modificación del contenido normativo que regula el artículo 13 de la Constitución Política de los Estados Unidos Mexicanos. 79 8 PRINCIPES DE PROPORTIONNALITÉ ET PRINCIPE DU RAISONNABLE La doctrine brésilienne tend à établir une identité entre les principes du raisonnable et de proportionnalité. Selon Bandeira de Mello, Zeno Veloso (MIRANDA, Henrique Savonitti. Licitações e contratos administrativos.Brasília: École Nationale de l’Administration Publique, 2004). Je pense, néanmoins, qu’il n’y a pas controverse concernant la possibilité de rapport quant à l’anti constitutionnalité auprès de l’organe compétent afin qu’il en soit fait état devant la Cour Suprême Fédérale. 79 CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Radilla Pacheco vs. México. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 23 de noviembre de 2009. Serie C No. 209. 170 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. à proprement parler, le principe de proportionnalité n'est qu'une facette du principe du raisonnable. Il mérite une attention particulière, une référence spéciale, de façon à ce que l'on puisse mieux distinguer la physionomie d'un vice spécifique qui peut surgir et se montrer sous l'aspect d'un acte disproportionné, en soulignant, par conséquent, les possibilités de correction juridictionnelle ancrées dans ce fondement. Étant un aspect spécifique du principe du raisonnable, il est entendu que leur matrices constitutionnelles sont identiques. 80 Bien que ces deux principes soient mentionnés à l'art. 2 de la loi n° 9.784/98, seul celui de la proportionnalité y est explicité dans les termes suivants: «adéquation entre moyens et fins, est interdite l'imposition d'obligations, de restrictions et de sanctions supérieures en proportion à celles qui sont strictement nécessaires à l'observance de l'intérêt public » (art. 2, VI). Il convient de noter que, dans la législation, le principe ci-dessus, est lié à l'«intérêt public» et sera naturellement utilisé parallèlement aux principes d'égalité, de bonne foi et de protection de la confiance légitime, lors de l'exercice d'un pouvoir administratif discrétionnaire. 9 PRINCIPE D’ÉGALITÉ Le pouvoir judiciaire doit être le destinataire du principe d'égalité, cherchant à traiter de la même façon les citoyens se trouvant dans la même situation de fait. A partir de cette idée est justifiée l’adoption de certains instruments procéduraux tels que: les actions collectives, les « súmulas vinculantes »81 et le procès exemplaire, servant également l'idée d'un large accès à la justice et de la limitation des procédures juridictionnelles répétitives ou des causes de masse. Toutefois, s’agissant des causes de droit public, où est en jeu un comportement ou une action administrative de portée générale, l'égalité découlant de la prestation juridictionnelle est doublement nécessaire, principalement en raison du devoir d'égalité depuis toujours inhérent à l'administration publique, dans les sphères aussi bien matérielle qu’extrajuridictionnelle.82 80 MELLO, Celso Antônio Bandeira de. Curso de direito administrativo.21. ed. São Paulo: Malheiros, 2006. p. 107-108. 81 Arrêt de principe du STF à caractère contraignant (ndt). 82 PERLINGEIRO, Ricardo. O princípio da isonomia na tutela judicial individual e coletiva, e em outros meios de solução de conflitos, junto ao SUS e aos planos privados de saúde. Dans: Noble, Milton; JOURS, Ricardo (s Org.). O Conselho Nacional de Justiça e os desafios da efetivação do direito à saúde. Belo Horizonte: Forum, 2011. p. 429-441 171 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. Il ne serait pas logique qu'une action administrative originellement destinée à la communauté, une fois judiciarisée, ne soit opposable qu’à ceux étant disposés à l’introduire ; le pouvoir judiciaire ne pouvant être associé à une exégèse capable de rompre avec le principe d'égalité administrative. D'autre part, le principe d''égalité devant être observé par l'administration ne peut pas servir de justification à la négation de droits subjectifs. En effet, concéder à un citoyen un droit qui pourrait également être étendu à tous ceux se trouvant dans la même situation, mais sans l’étendre effectivement, fait imploser l'idée d'égalité. L'erreur, cependant, réside dans le fait que l'Administration n'étende pas ce bénéfice, et non dans le fait que le pouvoir Judiciaire ne reconnaisse pas ce droit.83 En effet, l'un des plus grands défis du droit administratif contemporain, est le manque d'uniformité des décisions administratives concernant les intéressés dans la même situation de fait, alimentant ainsi une pluralité de demandes répétitives, en particulier au niveau de la sphère juridictionnelle, mettant ainsi potentiellement en jeu la sécurité juridique. En Europe, dans certains systèmes nationaux, le principe d'égalité a du mal à être appliqué aux décisions administratives et la doctrine s’est peu dédiée aux recherches sur ce sujet.84 Selon le Code Modèle de Procédures Administratives pour l'Ibéro-Amérique, l'égalité de l'Administration doit être de telle sorte que, lorsque La question de fond d’une prétention individuelle est rattachée aux effets juridiques d’un comportement administratif de portée générale, la solution du conflit doit devenir de l’intérêt de la collectivité destinataire de ce comportement et il en résulte que la solution ne saurait être trouvée qu’en une décision administrative unique, valant erga omnes. 85 En conséquence directe, les accords judiciaires concernant des normes administratives ou des actions d'intérêt général administratif, atteindraient nécessairement tous ceux qui se trouveraient dans la même situation de fait, même s'ils n'ont pas participé à ces accords.86 83 BRÉSIL. Tribunal Régional Fédéral de la 2ª Region. AG 201102010109190. 5a Classe. Rapporteur juge Ricardo Perlingeiro, E-DJF2R 13.2.2012. 84 “L’existence du principe d’égalité dans le droit administratif ne fait l’objet d’aucune hésitation dans les divers pays étudiés. Certes le droit britannique a longtemps préféré parler de rationalité et de cohérence plutôt que d’égalité, même si les solutions concrètes étaient pratiquement les mêmes; mais depuis une vingtaine d’années, le principe d’égalité est ouvertement appliqué par le juge britannique.” FROMONT, op. cit., p. 253-256. 85 INSTITUT IBÉRO-AMÉRICAIN de DROIT PROCESSUEL. Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América, op. cit., art. 5º. 86 Ibid., art. 72, II. 172 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. 10 PRINCIPES DE SÉCURITÉ JURIDIQUE ET DE CONFIANCE LÉGITIME La sécurité juridique doit opérer de façon à limiter le pouvoir d’autocensure de ses propres actes par l'administration. L'annulation des actes, des normes ou des décisions administratives entachés d'illégalité, mais ayant apporté des bénéfices aux citoyens, dépend d'une procédure juridictionnelle préalable et doit survenir, d’un point de vue objectif, dans un délai déterminé, sauf s'il y a preuve de mauvaise foi, ou, selon un point de vue subjectif, lorsque n'est pas remise en cause la confiance de l'intéressé en la stabilité du comportement de l'Administration.87 Le principe de la confiance légitime, arrimé à une dimension subjective de la notion de bonne foi basée sur les droits fondamentaux, dérive des principes de la sécurité juridique et de l'État de Droit, il oriente la loi allemande, selon laquelle un acte administratif invalide qui octroie ou est la condition d’une prestation pécuniaire immédiate ou échelonnée dans le temps, ne peut être invalidé si le bénéficiaire a cru dans la stabilité de l’acte administratif et si, sous réserve de l’intérêt public à le voir invalidé, cette confiance est digne de protection ; en règle générale on estime que la confiance est digne de protection si le bénéficiaire a disposé des prestations octroyées ou s’il a déjà conclu un contrat visant à en disposer, contrat qu’il ne peut plus annuler ou l’annulant à des conditions par trop préjudiciables pour lui. 88 En dehors de ces cas, une fois abrogé l'acte invalide et pesé l'intérêt public, il faut déterminer la réparation à octroyer sur la base de la confiance en sa stabilité.89 Dans ces deux cas, la notion de confiance est écartée en présence de : dol, menace, corruption, connaissance de l'invalidité ou méconnaissance de celle-ci pour cause de faute grave de l'intéressé, obtention de l'acte à partir de données inexactes ou incomplètes.90 Parallèlement, la validation putative, passé le délai d’un an à partir de la date de la prise de connaissance de l'invalidité, ne connaît d’exceptions qu’en cas de fraude, de menace et de corruption, étant ainsi écartés les autres aspects de la notion de confiance.91 Pour Forsthoff, dans le droit allemand, il n'existe que deux situations pour l'annulation des actes administratifs: abrogation (invalidation de l'acte n’ayant eu d’effet que 87 Ibid., arts. 19 e 20. 88 Verwaltungsverfahrensgesetz/VwVfG (Code Allemand de Procédures Administratives, du 25 mai 1976), § 48, numéro 2. 89 Ibid., § 48, numéro 3. 90 Ibid., § 48, numéro 2, points 1, 2 et 3; numéro 3, deuxième phrase. 91 Ibid., § 48, numéro 4. 173 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. sur le plan financier) et la révocation (invalidité d'un acte produisant des effets favorables). En principe, il n'est pas lieu à «libre» révocation, sauf si l'acte invalide est également antijuridique, comme dans les cas de dol ou lorsqu’il y a de nouvelles circonstances de fait et de droit.92 En droit administratif français, le principe de sécurité juridique est associé aux principes de non-rétroactivité et de respect des droits acquis (situations consolidées légalement). S'il y a modification d'une situation stabilisée, bien qu’illégale, l'Administration française concilie les principes de sécurité juridique avec l'“obligation de rétablir une situation conforme au droit” et, de ce fait, la décision administrative constitutive de «droits» contra legem peut être annulée, mais dans un certain délai.93 C'est la logique objective du droit français. En droit britannique, la sécurité juridique est liée à la protection de la confiance légitime (legitimate expectations), de sorte que l'Administration ne doive pas induire l'intéressé en erreur, mais en ce qui concerne les situations consolidées illégalement, le droit anglais en arrive à être plus sévère que le droit français, en n’admettant jamais la possibilité de droits subjectifs contra legem.94 Toutefois, le droit administratif européen, qui exerce une influence croissante sur les systèmes nationaux européens, met l'accent sur le principe de la confiance légitime d'origine allemande.95 Partiellement en contradiction avec les termes de la súmula vinculante96 numéro 473 de la Cour Suprême Fédérale («L’Administration peut annuler ses propres actes lors qu'ils sont entachés de vices qui les rendent illégaux, car ils ne créent aucun droit...») la loi n°9.784/99 a incorporé au droit brésilien le principe objectif français de sécurité juridique, parallèlement au subjectivisme allemand et à celui de confiance légitime, en particulier sur deux points: (1) déchéance du pouvoir d'annuler les actes administratifs ayant des effets favorables, au bout de cinq ans, sauf si la mauvaise foi est établie, (2) possibilité de validation putative des actes dont les défauts ne portent pas préjudice à l'intérêt public ou aux tiers. L'absence de mauvaise foi - équivalant à l'absence de dol- associée à l’échéance du délai, justifient la validation d’actes ayant des effets favorables, bien que contraires à la loi et 92 FORSTHOFF, Ernst. Tratado de derecho administrativo. Traduction Legaz Lacambra, Garrido Falla et Gómez de Ortega y Junge. Madrid: Instituto de Estudios Politicos, 1958. p. 359 et 363. 93 FROMONT, Michel. Droit administratif des Etats européens. Paris: PUF, 2006. p. 261-269. 94 Ibid., p. 268. 95 SIRINELLI, Jean. Les transformations du droit administratif par le droit de l’Union Européenne. Paris: LGDJ, 2011. p. 499. 96 Précédent jurisprudentiel s’imposant aux juges (ndt). 174 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. catalogués comme annulables (art. 54 de la Loi n ° 9.784/99: “L’Administration est déchue de son droit d'annuler les actes administratifs produisant des effets favorables au regard de ses destinataires à compter de cinq ans à partir de la date à laquelle ils ont été pratiqués, sauf si la mauvaise foi est établie”). La règle est analogue à celle que l'on trouve dans la VwVfG, § 48, numéro 4. Selon les dispositions de l'art. 55 de la loi n° 9.784/99 («Les actes présentant des défauts réparables, pourront être validés putativement par l’Administration elle-même, dans une décision établissant clairement qu’ils ne portent atteinte ni à l’intérêt public ni aux droits des tiers.»), la validation putative en tout temps d’actes illégaux dépend de l'absence d'atteinte à l'intérêt public, qui, soulignons-le, ne peut être confondu avec les intérêts de l'Administration. Cependant, malgré cette lacune, la validation putative doit être limitée, uniquement lorsqu’elle est nécessaire à satisfaire les intérêts de ceux qui en bénéficient, en raison de la confiance manifestée à l’égard des Pouvoirs Publics et démontrée à chaque fois qu'il y aura de sérieuses raisons de croire en la stabilité de l'acte administratif. Cette règle passe alors pour avoir un lien direct avec le principe de la confiance légitime suivant l’exemple du VwVfG, § 48, numéros 2 et 3. En ce qui concerne la protection des droits acquis comme condition à la révocation des actes administratifs, à l'art. 53 de la Loi n° 9.784/99, il semble clair que, dans des conditions normales, l'Administration ne révoque pas des actes licites constitutifs de droits légitimes. Par conséquent, la norme n'aurait de sens que si le terme "révocation" était appréhendé sous le point de vue allemand, quant à l'annulation des actes invalides ayant des effets favorables, et que les «droits acquis» dérivaient précisément de ces effets favorables. 97 L'article ci-dessus pourrait également être interprété, comme dans la jurisprudence française, à partir de l'existence de deux catégories de décisions administratives, celles constitutives de droits (par exemple, celles conférant un avantage pécuniaire) et celles qui ne créent pas de droits (telles que celles résultant d’un pouvoir de police). Cependant, en ce qui concerne cette dernière uniquement, des faits postérieurs impactant ces droits pourraient conduire à l'annulation de l'acte.98 Dans ce contexte, je pense qu'au Brésil, est admissible l'exégèse selon laquelle, tant qu'il n'y a pas atteinte à l'intérêt public, les effets favorables et consommés des actes invalides doivent être préservés, de même que la réparation des dommages causés, en raison de la 97 FORSTHOFF, op. cit., p. 359 e 363. 98 FROMONT, op. cit., p. 266. 175 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. confiance dont est dépositaire l'Administration. En l'absence de dol et passé un délai de cinq ans, en plus de préserver les effets consommés, l'acte administratif illégal est validé putativement. 11 PRINCIPES DU PROCÈS ÉQUITABLE (DROITS DE LA DÉFENSE ET CONTRADICTOIRE) La procédure administrative doit être préalable afin de rendre légitime l'élaboration - soulignons-le - de tous les actes administratifs individuels ayant des effets ponctuels et restrictifs de droits ou d'intérêts. Il est important de souligner que la possibilité d'un recours administratif contradictoire a posteriori, contestant l'acte administratif, n'exclut pas l'obligation d'une procédure préalable à la réalisation de ce même acte; la procédure administrative étant l'un des éléments constitutifs de l'acte administratif. À ce sujet, les principes du contradictoire et de l’exercice des droits de la défense inhérents à la procédure administrative doivent respecter non seulement le droit d'être entendu – d’avoir son day in court - ou de produire des preuves, mais surtout celui d'obtenir une décision publique motivée, basée sur les arguments de fait et de droit produits par les parties.99 C’est la tendance de la jurisprudence de la Cour Suprême Fédérale, qui sous l’influence de la jurisprudence du Bundesverfassungsgericht, considère que le droit à la défense et au contradictoire impliquent non seulement le droit de se manifester et d’être informé, mais également le droit de l’individu de voir ses arguments pris en compte par l’organe juridictionnel.100 Mais ce qui semble évident, constitue encore aujourd’hui un défi au regard des résistances de l’Administration Publique brésilienne. Prenons l'exemple de deux cas paradigmatiques que l'on retrouve fréquemment dans les tribunaux, l'un concernant les actes administratifs individuels, l'autre les actes relatifs administratifs généraux. 12.1 La retenue sur salaire des fonctionnaires publics 99 INSTITUT IBÉRO-AMERICAIN DE DROIT PROCESSUEL. Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América, op. cit, Exposition de Motifs. 100 BRÉSIL. Cour Suprême Fédérale. MS 25.787-3/DF. Rapporteur min. Gilmar Mendes. Brasília, DF. 176 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. Le premier exemple concerne la retenue sur salaire des fonctionnaires publics, ayant pour but la restitution des sommes indûment versées, permise par la Loi n° 8.112/29101, sans qu’ils ne puissent pour autant bénéficier d'une procédure administrative préalable. L'idée selon laquelle l'Administration Publique détient, pour le recouvrement de dettes, le pouvoir de procéder à des retenues sur la rémunération de ses propres fonctionnaires, sans que ne soient observées les garanties d’un procès équitable, ainsi que des affirmations du type "le fonctionnaire public ne dispose d’aucun droit acquis à un régime statutaire"102, peuvent être associées aux vestiges d'une conception de la fin du XIXe siècle, les nommées «relations spéciales de pouvoir», selon lesquelles les fonctionnaires, pour satisfaire les prétentions découlant de leur lien de subordination à l’Etat, étaient toujours soumis à des statuts ou à des normes spéciales auxquelles ne pouvaient s’appliquer les droits fondamentaux, le principe de légalité ou de sécurité juridique.103 Ces relations spéciales de droit public, institutionnalisées constitutionnellement, se caractérisaient par un ordre disciplinaire statutaire propre, avec une force obligatoire uniquement interne104, fondées et limitées tant par l'application de la loi, comme, par exemple, dans les relations découlant du service militaire obligatoire, que par la volonté de l'intéressé lui-même, tel que dans les relations avec les fonctionnaires publics ou les militaires de carrière. À l'époque, on en venait à dire que l'enseignant pouvait, "sans détours, détenir et emprisonner l'étudiant négligent»,105 le citoyen quittait la société et entrait dans l'organisation institutionnelle de l'État.106 Cette vision, à l'époque liée à un État de Droit purement formel, est aujourd'hui dépassée. En Allemagne, la rupture définitive avec l'exégèse selon laquelle les relations spéciales de pouvoir créaient des espaces juridiquement vides a eu lieu à partir de la décision de la Cour Constitutionnelle Fédérale, qui, en date du 14 mars 1972, a affirmé que 101 Loi nº 8.112, du 11 novembre 1990 (Rédaction élaborée à partir de la Mesure Provisoire nº 2.225-45, du 4.9.2001), art. 46. 102 BRÉSIL. Cour Suprême Fédérale. AI 64.1911, AgR. 1ª Classe. Rapporteur min. Carmen Lúcia, j. 8.9.2009, DJe 1.10.2009; BRASIL. Cour Suprême Fédérale. RE 116.683. Rapporteur min. Celso de Mello, DJ 13.3.1993; BRÉSIL. Cour Suprême Fédérale. AI 685-866-AgR. Rapporteur min. Ricardo Lewandowski, DJe 22.5.2009. 103 MAURER, Hartmut. Direito administrativo geral. Barueri: Manole, 2006. p. 195. 104 MAYER, Otto. Derecho administrativo alemán. Buenos Aires: Depalma, 1982. t. I, § 10, III, p. 170-171. FORSTHOFF, op. cit., p. 201. 105 W. Jellinek, VerwR S. 122, S. 341, apud MAURER, op. cit., p. 195. 106 WOLFF; BACHOF; STOBER, Direito administrativo. Traduction Antônio F. de Sousa. Lisboa: Fundação Calouste Gulbenkian, 2006..p. 111. 177 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. les droits fondamentaux peuvent également être invoqués pour la mise en œuvre de sanctions administratives.107 Il est clair que les prétentions d'un fonctionnaire se rapportant exclusivement à ses attributions administratives, ne sont qu'apparentes et les conflits éventuels doivent être résolus interna corporis par l'Administration elle-même, n'existant pas, dans ces cas, un droit subjectif proprement dit. L’Administration n’a pas de droits à l’égard d’elle-même, tel était le sens de l’institut de la « relation spéciale de pouvoir », associé à un cadre interne, et partant, juridiquement vide. D’où, la juste affirmation selon laquelle le Pouvoir Judiciaire ne doit pas connaître des questions interna corporis de l'Administration; elle doit respecter les statuts, règles et règlements, qui, par exemple, établissent les critères de choix interne d'un dirigeant d'une université publique (autonomie universitaire) ou encore d'un tribunal, puisque les effets d'un conflit de cette nature s'épuisent internement et qu’il n’y a pas, en toute logique, de droits subjectifs à protéger juridictionnellement. Il en va de même en ce qui concerne la structure administrative du Pouvoir Législatif (élection à des commissions parlementaires, etc.). Toutefois, si un fonctionnaire allègue une atteinte à sa sphère patrimoniale, la prétention correspondante, même si elle provient directement de son lien à l'administration, devra être considérée sous couvert des droits fondamentaux. A la différence de ce qui s’est déjà dit par le passé, le fonctionnaire public n’est plus l’objet d’un « pouvoir spécial », mais il demeure un sujet de droit. 108 12.2 Les droits de la défense dans les décisions du TCU La deuxième situation concerne la procédure administrative préalable comme condition des décisions rendues par la Cour des Comptes. Pendant de nombreuses années, au Brésil a prévalu l'idée selon laquelle, au cours d'une procédure administrative devant la Cour des Comptes, la garantie du droit à la défense aux éventuels intéressés n'était pas nécessaire. Ceci car cette procédure s'entendait comme exclusivement retournée contre l'Administration, constituant, ainsi, une procédure interne de contrôle de la légalité de l'Administration. Le cas échéant, les intéressés devraient faire valoir directement leurs droits auprès de l'administration. Cependant, en réalité, 107 BverfGE, 33, 1. 108 WOLFF; BACHOF; STOBER, op. cit., p. 494. 178 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. l'Administration, orientée par le principe de la subordination hiérarchique, ne serait en aucun cas en mesure de contrarier la position prise par la Cour des Comptes, rendant ainsi le droit à la défense purement protocolaire, sans aucun effet pratique. En 2007, la Cour Suprême Fédérale a publié la « súmula vinculante » numéro 3, en ces termes: “Au cours des procédures portées devant la Cour des Comptes de l'Union, sont assurés le contradictoire et les droits de la défense lorsqu'il peut résulter de la décision l'annulation ou la révocation d'un acte administratif dont bénéficie l'intéressé [...]”.109 Toutefois, la Cour des Comptes, lors de l'interprétation de cet arrêt, a décidé que Il n'appartient pas au TCU d'instaurer une procédure contradictoire à tous ceux que concernent les décisions génériques du Tribunal - prises dans l'exercice de sa compétence constitutionnelle d'exiger des personnes soumises à sa juridiction la parfaite application de la loi - c’est-à-dire de contenu uniquement objectif, sans tenir compte des situations concrètes et subjectives, donc sans la présence du sujet passif déterminé. 110 Ainsi que nous l'avons mentionné plus haut, toute procédure administrative doit assurer le respect des droits de la défense et du principe du contradictoire, dans le but de légitimer la prise d’actes ayant une répercussion envers les intéressés. Cependant, de fait, en raison de l'essence même de la procédure administrative, seuls les actes et les décisions administratives individuels permettent l'exercice préalable du droit à la défense. Il faut reconnaître que, lorsque l'on parle de la constitution d'actes généraux, concrets ou abstraits, ou d'actes individuels quant à leurs effets généraux, la procédure administrative prévoit le mécanisme du contradictoire différé ou reporté. Dans ces cas-là, en raison de l'impossibilité de convoquer chaque individu impliqué afin de défendre ses intérêts, cette diligence est remplacée par une consultation publique ou une audience publique, prévues par la législation brésilienne aux arts. 31 et 32 de la Loi n° 9.784/1999, ce procédé comporte une correspondance dans les ordres juridiques d'autres pays d'Amérique Latine, comme le Costa Rica, le Pérou, le Mexique et le Venezuela.111 109 BRÉSIL. Cour Suprême Fédérale. Súmula Vinculante nº 3. Session Plenière, 30 mai 2007. Brésilia, DF, DJe nº 31 de 6.6.2007, p. 1. 110 BRASIL. Tribunal des Comptes de l’Union. Acórdão (Arrêt) 2.553/2009. Session Plénière. Rapporteur min. José Jorge, DJ 4.11.2009. 111 BREWER-CARÍAS, Allan. Principios del procedimiento administrativo en América Latina. Bogotá: Legis, 2003. p. 98-99. En France, la participation des intéressés au processus de prise de décisions d'intérêt collectif constitue un débat difficile, elle est prise en charge par la Commission Nationale de Débat Public, ayant aujourd'hui un statut d'autorité administrative indépendante et elle a la fonction d'assurer le renforcement de la participation populaire dans le processus d'élaboration de projets urbains ayant un impact économique et 179 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. En outre, il convient de souligner que sera ultérieurement garantie à l'intéressé la faculté d'amorcer une nouvelle procédure administrative disposant d’une totale possibilité de défense de façon à écarter les effets individuels de l'acte général provenant de la procédure administrative antérieure, au cours de laquelle il a été représenté par les entités qui ont pu participer aux audiences et aux consultations publiques. Rappelons, enfin, que les questions d'intérêt général ne peuvent être décidées par une autorité administrative de degré inférieur à celle qui a donné lieu au conflit. La compétence incombera à l'autorité qui détient le pouvoir d'autocensure s’agissant de la question de fond soulevée par les intéressés. Ainsi, dans le cas où la prétention implique la déclaration d'invalidité ou d'illégalité d'un acte administratif, seule l'autorité administrative compétente pour annuler un acte ou son supérieur pourra juger la procédure, sous peine d’irrespect ou d’insubordination administrative. Par conséquent, les Tribunaux des Comptes doivent toujours s'abstenir de déléguer à l'Administration la garantie des droits de la défense et du principe du contradictoire, et doivent commencer à recevoir, eux-mêmes, les procédures administratives visant à la contestation individuelle de leurs décisions où la question de fond est d'intérêt général, afin d'assurer le respect des garanties d'un procès équitable. Il convient en outre de souligner que les effets favorables de la solution finale sont nécessairement étendus à tous ceux se trouvant dans la même situation de fait.112 13 LA RÉALITÉ DE L’ADMINISTRATION BRÉSILIENNE Je considère que, d'une manière générale, la justice administrative brésilienne, sa structure organique, ses juges, ses normes et ses principes procéduraux, sont en accord avec les principes fondamentaux de la protection juridictionnelle effective et de l'État de droit. environnemental. (POCHARD, Marcel. La Administración Pública y la protección de los derechos fundamentales. In: CONSEJO DE ESTADO DE LA REPÚBLICA DE COLOMBIA. Seminario Franco- Colombiano sobre la Reforma a la Jurisdicción Contencioso Administrativa. Bogotá: Imprenta Nacional de Colombia, 2008. p. 85-86; FROMONT, op. cit., p. 220-221). La loi britannique est celle qui a le plus investi dans les procédures publiques, par le biais d'audiences publiques: “Incontestablement, c’est le droit britannique qui a donné le plus d’importance aux procédures publiques qui sont appelées enquêtes publiques. Ce qui caractérise les enquêtes, c’est que celles-ci commencent par des mesures de publicité permettant à l’ensemble des personnes intéressées de prendre part aux audiences qui sont ensuite organisées de façon contradictoire, selon un modèle quasi juridictionnel, mais qui ne portent en principe que sur la situation de fait du territoire concerné, ce qui permet ensuite à l’autorité administrative compétente de prendre en considération des objectifs qui dépassent le strict cadre territorial” (FROMONT, op. cit., p. 220). 112 À l'exemple du Règlement Intérieur du Tribunal des Comptes (Approuvé par la Résolution administrative n°15, en date du 15 Juin, 1993), aux arts. 161 et 281. 180 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. Cette évaluation peut aussi s'appliquer à la législation brésilienne concernant la procédure administrative. Cependant, il est possible d'avoir la sensation que, dans la société brésilienne, les droits subjectifs ne sont pas respectés par l'Administration,113 et que le Pouvoir Judiciaire est lent et incapable de répondre à la hauteur de ce qui est attendu de lui. 114 En réalité, les données statistiques indiquent l'existence d'un nombre croissant de conflits impliquant l'Administration115 et, proportionnellement, une augmentation de la durée de conclusion des procès ,116 bien que, paradoxalement, les structures juridictionnelles ne cessent de croître, et 113 Comme il en ressort de l'étude réalisée par le CNJ Justiça em números, les causes découlant d'une relation juridique de droit public, ayant comme demandeur ou défendeur les Pouvoirs Publics, représentent une majorité absolue des cas portés devant les tribunaux. "Justiça em números" est un système, comme indiqué sur le site du CNJ <http://www.cnj.jus.br/>, qui vise l’élargissement du processus de connaissance du Pouvoir Judiciaire par le biais du prélèvement et de la systématisation de données statistiques et du calcul des indicateurs statistiques décrivant la performance des tribunaux. Dans le cas précis de cette étude, il est important de connaître le profil des demandes et de chercher à déterminer la participation du gouvernement dans les actions en justice, le contentieux et la quantité de travail, considérant la quantité de nouveaux cas, l'accumulation de travail du magistrat, le taux de congestionnement de la justice, la quantité de recours externes et internes et le taux de réformation des décisions. Selon les données recueillies par le CNJ pour l'année de référence 2009, les Pouvoirs Publics ont porté devant la Justice Fédérale de 1er degré, un total de 3.458.831 (trois millions quatre-cent cinquante huit mille huit-cent trente et un) de nouveaux cas. Dans cet ensemble , sont inclus les cinq tribunaux régionaux et les actions en justice de l'Union, des municipalités, des fondations et des entreprises publiques fédérales, des États, du District fédéral, des municipalités, des fondations et des États et des districts des entreprises publiques de l'État et des districts, des communes, des municipalités, des fondations et des entreprises publiques municipales. Un total de 2.580.232 (deux millions, cinq-cent quatre-vingt mille deux-cent trente deux) actions ont été portées devant la justice de 1º degré à l'encontre des Pouvoirs Publics. En ce qui concerne les actions en justice de 2ème degré, les Pouvoirs Publics ont porté en justice un total de 740 818 actions (sept-cent quarante mille huit-cent dix-huit) a contrario 676 966 (six-cent soixante-seize mille neuf-cent soixante six) ont été portées contre lui. Devant les tribunaux des Etats fédérés, les Pouvoirs Publics, en tant que demandeurs, ont atteint un total de 4.126.159 (quatre millions cent vingt-six mille cent cinquante neuf) actions, en précisant que, comme indiqué sur le site, certains Etats de la Fédération ne disposant pas de toutes les données, il peut être conclu que le résultat réel est plus élevé que celui susmentionné. Dans ce nombre, sont compris les deux degrés de juridiction. Devant les tribunaux des États fédérés ce sont 1.134.963 (un million cent trente quatre mille neuf- cent soixante trois) demandes au total ont été déposées contre les Pouvoirs Publics en 2009. 114 MATSUURA, Lilian. Para brasileiro, Justiça é lenta, cara e parcial. Consultor Jurídico, 22 fev. 2009. 115 Cette affirmation peut être démontrée par une étude menée par le Département de Recherches Judiciaires du Conseil National de la Justice ayant pour but d'identifier ceux qui avaient intenté le plus d'actions en justice (les 100 premiers) auprès des tribunaux des Etats fédérés, des tribunaux régionaux fédéraux et des tribunaux du travail. Il a été démontré que l'Institut National de Sécurité Sociale (INSS) est l'objet de plus d'un cinquième des actions en justice du classement total. Le secteur Public Fédéral est en tête en ce qui concerne le nombre de litiges, avec un total de 38,5%, suivi par le Secteur Public des Etats fédérés, avec un pourcentage de 7,8%, et un total de 5,2% pour le Secteur Municipal, soit un total 51,5% pour les entités de l'Administration Publique. Cela signifie que l'Union, les États, les Communes, les organismes municipaux et les fondations, soit au total environ 20 entités, (trois) personnes juridiques de droit public et 15 personnes juridiques de l'administration indirecte, atteignent un plus grand nombre de demandes que les 80 premiers plaideurs du pays, figurant parmi eux l'ensemble des secteurs de la banque et des télécommunications. Données disponibles sur le site: <http://www.cnj.br/iagens/pesquisa-judiciarias/pesquisas_litigantes-pdf>. Consulté le: 3 Juin 2011 (Moraes, Vânila Cardoso de. Demandas repetitivas decorrentes de ações ou omissões da Administração Pública: hipóteses de soluções e a necessidade de um direito processual público fundamentado na Constituição. la .En 2011. 231 f. Mémoire (Master en Justice Administrative) - Université Fédérale Fluminense, Niterói, RJ, 2011). 116 «(...) la 2ème instance de la Justice Fédérale, en particulier le TRF (Tribunal Régional Fédéral) de la 1ère Région, n'est pas en mesure, malgré la mise en oeuvre des processus d'amélioration de la gestion des procédures, 181 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. qu’il en est de même des dépenses.117 C'est le symptôme qui indique que quelque chose ne fonctionne pas bien. En effet, il y a un écart ou un décalage temporel entre la législation et la réalité de l'Administration Publique brésilienne. J'ai essayé de démontrer que la plupart des conflits dérivent, parfois par méconnaissance, d'une résistance de l'Administration à se conformer aux principes fondamentaux énoncés dans les normes de procédure administrative, qui constituent l'épine dorsale du droit administratif. Au Brésil, encore aujourd’hui, 15 ans après la publication de la Loi Générale de Procédure Administrative (Loi nº 9.784) et 25 ans après la promulgation de la Constitution, nous vivons avec une Administration qui date de l’époque où les actes administratifs étaient pris sans permettre l’exercice préalable des droits de la défense ou du contradictoire. Le manque généralisé d’anticipation des fonctionnaires publics a pu être notoirement constaté au moment de l’entrée en vigueur de la nouvelle loi relative à l’accès aux informations. Les journaux, y compris les publications du gouvernement, informaient alors de la surprise des fonctionnaires publics “qu’est-ce que c’est que cette loi d’accès aux informations ?”118 14 CONSIDÉRATIONS FINALES de raccourcir les délais de jugement. Au contraire, ces délais s'étendent, résulte de ce constat la preuve irréfutable de la stabilité ou même de l'augmentation au fil des ans, du congestionnement de l'appareil judiciaire, comme indiqué ci-dessous: TRIBUNAL 2004 TRF (moyenne) 67,1% TRF de la 1ère Région fédérale 69% Données obtenues à partir du site Web du CNJ et constant dans Cartilha Novos Tribunais: uma questão de Justiça, organisé par l'Association des Juges Fédéraux de Minas Gerais (AJUFEMG), Novembre 2010.(ASSOCIATION DES JUGES FÉDÉRAUX de MINAS GERAIS - AJUFEMG (Brésil).Cartilha Novos Tribunais: uma questão de justiça. Minas Gerais: AJUFEMG, 2010. p. 34). Taux de congestionnement: nombre de procédures qui sont entrées dans le système et qui n'ont pas été jugées <http://www.cnj.jus.br/>. Notez qu'une grande partie de cette augmentation se doit au changement de la méthodologie adoptée par le CNJ, entre les années 2008 et 2009, s'agissant du calcul du taux de congestionnement » (Moraes, op. cit.). 117 Depuis 1989, la Justice Fédérale de 1ère instance a augmenté 470%, étant présente dans plus de 214 municipalités. Grâce à la loi n ° 12.011/2009, plus de 230 chambres fédérales ont été créées et leur installation se concluera entre 2010 à 2014, élevant cette croissance à un taux de 606% et à 273 municipalités. (ASSOCIATION DES JUGES FÉDÉRAUX DE MINAS - AJUFEMG (Brésil). Cartilha Novos Tribunais: uma questão de justiça, op. cit.). 118 BRUNO, Cássio; BASTOS, Isabela; CASTRO, Juliana; RAMALHO, Sérgio. Que lei de acesso é essa?, reage uma servidora. O Globo, le 17 mai 2012. http://www.cnj.jus.br/ 182 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. Dans ce contexte d’adversités, de culture et de mentalité issues du passé, je trouverais précipité voire même téméraire, dans un premier temps, d’accroître le pouvoir de l’Administration en matière de résolution des contentieux administratifs, en restreignant ou en admettant l’accès à la Justice à titre seulement subsidiaire. Mais je reconnais qu’à moyen terme, le perfectionnement des « autorités administratives indépendantes » est la voie naturelle. Toutefois, nous avons besoin d’une réforme, cependant elle ne porterait à ce stade sur le Pouvoir Judiciaire ou la législation processuelle administrative (juridictionnelle et non contentieuse), mais sur la propre Administration ; une réforme urgente qui concernerait notamment la qualification et la formation des agents publics, sur les aspects techniques et éthiques, permettant de lutter contre la corruption et qui conduise à une Administration efficace, crédible et renforcée telle un véritable troisième pouvoir. Nous avons besoin d’une réforme qui conduise à une Administration qui ne se cacherait pas derrière l’application stricte du principe de légalité, délégant par commodité au Pouvoir Judiciaire la reconnaissance de droits trouvant leur source dans la Constitution et dans les Conventions Internationales des Droits de l’Homme. Et finalement, nous avons besoin d’une réforme qui conduise à une Administration engagée en faveur de l’Etat de Droit, qui sans s’appuyer sur le Pouvoir Judiciaire, dispose de l’initiative d’assurer les droits fondamentaux. RÉFÉRENCES ALLEMAGNE. Bundesverfassungsgerichts (BverfGE). BVerfGE 33, 1. Entscheidungen des Bundesverfassungsgerichts (BverfGE). Disponible sur le site: <http://sorminiserv.unibe.ch:8080/tools/ainfo.exe?Command=ShowPrintVersion&Name=bv0 33001>. Consulté le: 16 juil. 2012. ______. Verwaltungsgerichtsordnung (VwGO). Code de Juridiction Administrative. Loi du 21 janvier 1960 (BGBl. I S. 17), modifiée et nouvellement promulguée le 19 mars 1991 (BGBl. I S. 686), actualisée selon les altérations imposées par l’article 3 de la Loi du 21 décembre 2006 (BGBl. I S. 3316) et par l’article 13 de la Loi du 12 décembre 2007 (BGBl. I S. 2840). Disponible sur le site: <http://www.gesetze-im-internet.de/bundesrecht/vwgo/gesamt.pdf>. Consulté le: 12 juil. 2012. ______. Verwaltungsverfahrensgesetz (VwVfG). Code allemand de procédures administratives du 25 mai 1976. Disponible sur le site: <http://www.gesetze-im-internet.de/vwvfg/>. Consulté le: 12 juil. 2012. ARGENTINE. Constitución Nacional. Sancionada por el congreso general constituyente el 1° de mayo de 1853, reformada y concordada por la convención nacional ad hoc el 25 de 183 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. septiembre de 1860 y con las reformas de las convenciones de 1866, 1898, 1957 y 1994. Disponible sur le site: <http://www.senado.gov.ar/web/interes/constitucion/atribjudicial.php>. Consulté le: 12 juil. 2012. ______. Ley Contencioso Administrativo de la Província de Buenos Aires. Ley nº 12.008 de 01 de junio de 1999. Disponible sur le site: <http://www.gob.gba.gov.ar/legislacion/legislacion/l-12008.html>. Consulté le: 12 juil. 2012. ASSOCIATION DES JUGES FÉDÉRAUX DE MINAS GERAIS – AJUFEMG (Brésil). Cartilha Novos Tribunais: uma questão de justiça. Minais Gerais: AJUFEMG, 2010. AUTRICHE. Bundes-Verfassungsgesetz (B-VG). Constitution du 1o octobre 1920. Disponible sur le site: < http://www.verfassungen.de/at/ >. Consulté le: 12 juil. 2012. BELGIQUE. Constitution Belge. Constitution de 1993. Texte coordonné le 17 février 1994. Disponible sur le site: <http://www.senate.be/doc/const_fr.html>. Consulté le: 12 juil. 2012. ______. Loi du 23 décembre 1946 – Loi du Conseil d’État de Belgique. Loi du 23 décembre 1946. Disponible sur le site: <http://www.juradmin.eu/fr/members/pdf/belgique.pdf>. Consulté le: 12 juil. 2012. BRÉSIL. Código de Organização e Divisão Judiciárias do Estado do Rio de Janeiro. Actualisé le 27 avril 2011. Disponible sur le site: <http://www.tjrj.jus.br/consultas/codrj_regimento_tjrj/codjerj_novo.pdf>. Consulté le: 12 juil. 2012. ______. Conselho Nacional de Justiça (Conseil National de Justice). Justiça em números. Dados colhidos no ano-base de 2009. Disponible sur le site: <http://www.cnj.jus.br/>. Consulté le: 12 juil. 2012. ______. Superior Tribunal de Justiça. (Tribunal Supérieur de Justice). Regimento interno. Disponible sur le site: <http://www.dji.com.br/normas_inferiores/regimento_interno_e_sumula_stj/ristj__0008a0009 .htm#Art.%209%BA>. Consulté le: 12 juil. 2012. BREWER-CARÍAS, Allan. Bases constitucionales del derecho administrativo. In: Estudios de derecho administrativo 2005-2007. Caracas: Editorial Jurídica Venezuelana, 2007. ______. Principios del procedimiento administrativo en América Latina. Bogotá: Legis, 2003. BRUNO, Cássio; BASTOS, Isabela; CASTRO, Juliana; RAMALHO, Sérgio. Que lei de acesso é essa?, reage uma servidora. O Globo, 17 mai 2012. Disponible sur le site: <http://clippingmp.planejamento.gov.br/cadastros/noticias/2012/5/17/que-lei-de-acesso-e- essa-reage-uma-servidora>. Consulté le: 15 juin 2012. CHILI. Codigo Organico de Tribunales. Ley nº 7.421, de 15 de junio de 1943. Disponible sur le site: <http://www.leychile.cl/Consulta/Exportar?radioExportar=Normas&exportar_formato=pdf&n ombrearchivo=NORMA255630&exportar_con_notas_bcn=True&exportar_con_notas_origin ales=True&exportar_con_notas_al_pie=True&hddResultadoExportar=25563.2012-03- 14.0.0%23>. Consulté le: 12 juil. 2012. 184 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. CODE de Procédure Administrative allemand. Traduction et annotations Alberto Augusto Andrade de Oliveira. Coimbra: Livraria da Universidade – DL, 1996. COLOMBIE. Constitución Política de Colombia. Constitution Politique de Colombie, du 20 juillet 1991. Disponible sur le site: <http://www.secretariasenado.gov.co/senado/basedoc/cp/constitucion_politica_1991.html#1>. Consulté le: 12 juil. 2012. ______. Ley nº 1.437, de 18 de enero de 2011. Disponible sur le site: <http://wsp.presidencia.gov.co/Normativa/Leyes/Documents/ley143718012011.pdf>. Consulté le: 12 juil. 2012. COSTA RICA. Código Procesal Contencioso-Administrativo. Ley nº 8.508, de 1º de enero de 2008. Disponible sur le site: <http://www.tse.go.cr/pdf/normativa/codigoprocesalcontencioso.pdf>. Consulté le: 12 juil. 2012. ______. Constitucion Politica de la Republica de Costa Rica de 1949. Actualizada hasta Ley n° 8.365, del 15 de julio del 2003. Disponible sur le site: <http://pdba.georgetown.edu/Constitutions/Costa/costa2.html>. Consulté le: 12 juil. 2012. ______. Ley Organica del Poder Judicial. Ley nº 7.333/1993, modificada por la Ley nº 7.728, de 15 de diciembre de 1997. Disponible sur le site: < http://www.tse.go.cr/pdf/normativa/leyorganicapoderjudicial.pdf >. Consulté le: 12 juil. 2012. GARCÍA DE ENTERRÍA, Eduardo. La lucha contra las inmunidades del poder. 3. ed. Madri: Civitas, 1995. ______; FERNÁNDEZ, Tomás-Ramón. Curso de direito administrativo. Traduction Arnaldo Setti. São Paulo: Revista dos Tribunais, 1991. ESPAGNE. Constitución Española, de 29 de diciembre de 1978. Disponible sur le site: <http://noticias.juridicas.com/base_datos/Admin/constitucion.t4.html>. Consulté le: 12 juil. 2012. ______. Ley nº 23, de 7 de julio de 1998. Disponible sur le site: <http://noticias.juridicas.com/base_datos/Admin/l23-1998.html>. Consulté le: 12 juil. 2012. FORSTHOFF, Ernst. Tratado de derecho administrativo. Traduction Legaz Lacambra, Garrido Falla et Gómez de Ortega y Junge. Madri: Instituto de Estudios Politicos, 1958. FRANCE. Code de Justice Administrative. Dernière modification le 20 juin 2012. Disponible sur le site: <http://www.legifrance.gouv.fr/affichCode.do;jsessionid=6CFB30A3E26674D0A68270CCB DAE2318.tpdjo10v_1?idSectionTA=LEGISCTA000006150379&cidTexte=LEGITEXT00000 6070933&dateTexte=20120710>. Consulté le: 12 juil. 2012. FROMONT, Michel. Droit administratif des Etats européens. Paris: PUF, 2006. GRÈCE. Νομοθετικού διατάγματος [Ν] 170/1973. Décret Législatif nº 170/1973, rectifié par les Lois nº 702/1977 et nº 1470/1984 et codifié par le Décret nº 18/1989. Disponible sur le http://www.tse.go.cr/pdf/normativa/leyorganicapoderjudicial.pdf 185 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. site: <https://technologismiki.com/nomos/index.html?pd_18_89_77.php>. Consulté le: 12 juil. 2012. ______. Πράξη 1406/1983. Loi no 1.406 de 1983. Disponible sur le site: <http://www.kostasbeys.gr/articles.php?s=5&mid=1479&mnu=3&id=17277>. Consulté le: 12 juil. 2012. ______. Σύνταγμα της Ελλάδας. Constitution du 9 juin 1975. Disponible sur le site: <http://el.wikisource.org/wiki/Σύνταγμα_της_Ελλάδας#.CE.86.CF.81.CE.B8.CF.81.CE.BF_9 4>. Consulté le: 12 juil. 2012. HONGRIE. Bírósági szervezet szóló 1997. Loi de L’Organisation Judiciaire de 1997. Disponible sur le site: <http://jogi-asszisztens.blog.hu/2008/07/02/a_birosagi_szervezet>. Consulté le: 12 juil. 2012. INSTITUTO IBERO-AMERICANO DE DIREITO PROCESSUAL. (Institut Ibéro- Américain de Droit Processuel) Código Modelo de Processos Administrativos – Judicial e Extrajudicial – para Ibero-América. Buenos Aires: IIDP, 2012. Disponible sur le site: < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250852 >. Consulté le: 16 juin. 2012. ITALIE. Costituzione della Repubblica Italiana, de 27 de dicembre de 1947. Disponible sur le site: <http://www.senato.it/documenti/repository/relazioni/libreria/Costituzione_anastatica.pdf>. Consulté le: 12 juil. 2012. ______. Legge 27 aprile 1982, n. 186. Loi nº 186, du 27 avril 1982. Disponible sur le site: <http://www.giustizia-amministrativa.it/iper/186-1982.htm>. Consulté le: 12 juil. 2012. MATSUURA, Lilian. Para brasileiro, Justiça é lenta, cara e parcial. Consultor Jurídico, 22 fév. 2009. Disponible sur le site: <http://www.conjur.com.br/2009-fev-22/brasileiro-poder- judiciario-lento-caro-imparcial>. Consulté le: 16 juin. 2012. MAURER, Hartmut. Direito administrativo geral. Barueri: Manole, 2006. MAYER, Otto. Derecho administrativo alemán. Buenos Aires: Depalma, 1982. t. I. MELLO, Celso Antônio Bandeira de. Curso de direito administrativo. 21. ed. São Paulo: Malheiros, 2006. MÉXIQUE. Constitucion Política de los Estados Unidos Mexicanos, de 5 de febrero de 1917. Disponible sur le site: <http://info4.juridicas.unam.mx/ijure/fed/9/95.htm?s>. Consulté le: 12 juil. 2012. ______. Ley Orgánica del Tribunal Federal de Justicia Fiscal y Administrativa. Dernière réforme publiée le 3 juin 2011. Disponible sur le site: <http://www.diputados.gob.mx/LeyesBiblio/pdf/LOTFJFA.pdf>. Consulté le: 12 juil. 2012. MEYER, Hans. El procedimiento administrativo en la Republica Federal de Alemania. In: VAZQUEZ, Javier Barnés (Org.). El procedimento administrativo en el derecho comparado. Madri: Civitas, 1993. 186 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. MIRANDA, Henrique Savonitti. Licitações e contratos administrativos. Brésilia: Escola Nacional de Administração Pública (École Nationale de l’Administration Publique), 2004. Disponible sur le site: <www.enap.gov.br/downloads/ec43ea4fUFAM-HenriqueLicita.pdf >. Consulté le: 19 avr. 2011. MORAES, Vânila Cardoso Andre de. Demandas repetitivas decorrentes de ações ou omissões da Administração Pública: hipóteses de soluções e a necessidade de um direito processual público fundamentado na Constituição. 2011. 231 f. Mémoire (Master en Justice Administrative) – Université Fédérale Fluminense, Niterói, RJ, 2011. Disponible sur le site: < http://www2.cjf.jus.br/ojs2/index.php/mono/index >. Consulté le: 12 juil. 2012. PAYS-BAS. Wet van 9 maart 1962, op de Raad van State. Loi du 9 mars 1962. Disponible sur le site: <http://maxius.nl/wet-op-de-raad-van-state/artikel1/>. Consulté le: 12 juil. 2012. PERLINGEIRO, Ricardo. A impugnação judicial de atos administrativos na defesa de interesses difusos, coletivos e individuais homogêneos. In: XXVIII Congreso Colombiano De Derecho Procesal. Bogotá: Universidad Libre, p. 919-938, 2007. Disponible sur le site: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250854>. Consulté le: 5 juil. 2013. ______. O princípio da isonomia na tutela judicial individual e coletiva, e em outros meios de solução de conflitos, junto ao SUS e aos planos privados de saúde. In: NOBRE, Milton; DIAS, Ricardo (Orgs.). O Conselho Nacional de Justiça e os desafios da efetivação do direito à saúde. Belo Horizonte: Fórum, 2011. Disponible sur le site: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2241142>. Consulté le: 5 juil. 2013. ______; BLANKE, Hermann-Josef; SOMMERMANN, Karl-Peter (Coords.). Código de jurisdição administrativa: o modelo alemão. Rio de Janeiro: Renovar, 2009. PÉROU. Constitucion Politica del Peru de 1993. Disponible sur le site: <http://peru.justia.com/federales/constitucion-politica-del-peru-de-1993/titulo-iv/capitulo- viii/>. Consulté le: 12 juil. 2012. ______. Ley del Procedimiento Administrativo General. Lei nº 27.444, de 10 avril 2001. Disponible sur le site: <http://www.unmsm.edu.pe/ogp/ARCHIVOS/LEY%20DEL%20PROCEDIMIENTO%20AD MINISTRATIVO.htm>. Consulté le: 12 juil. 2012. POCHARD, Marcel. La Administración Pública y la protección de los derechos fundamentales. In: CONSEJO DE ESTADO DE LA REPÚBLICA DE COLOMBIA. Seminario Franco-Colombiano sobre la Reforma a la Jurisdicción Contencioso Administrativa. Bogotá: Imprenta Nacional de Colombia, 2008. PORTUGAL. Código de Processo nos Tribunais Administrativos. Loi nº 4-A, du 19 février 2003. Disponible sur le site: <http://www.stadministrativo.pt/pdf/CodigoDeProcessoNosTribunaisAdministrativos.pdf>. Consulté le: 12 juil. 2012. ______. Constituição da República Portuguesa, de 2 de abril de 1976. (Constitution de la République Portugaise du 2 avril 1976). Revision VII de 2005. Disponible sur le site: http://www2.cjf.jus.br/ojs2/index.php/mono/index http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250854 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2241142 http://www.unmsm.edu.pe/ogp/ARCHIVOS/LEY%20DEL%20PROCEDIMIENTO%20ADMINISTRATIVO.htm http://www.unmsm.edu.pe/ogp/ARCHIVOS/LEY%20DEL%20PROCEDIMIENTO%20ADMINISTRATIVO.htm 187 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. <http://www.parlamento.pt/Legislacao/Paginas/ConstituicaoRepublicaPortuguesa.aspx>. Consulté le: 12 juil. 2012. ______. Estatuto dos Tribunais Administrativos e Fiscais. Loi nº 13, du 31 janvier 2002. Disponible sur le site: <http://portolegal.jurispro.net/ETAF.htm>. Consulté le: 12 juil. 2012. ROCHA, Carmen Lúcia Antunes. Princípios constitucionais do processo administrativo no Direito brasileiro. Revista de Informação Legislativa, Brésilia: Sénat Fédéral, anné 34, n. 136, p. 5-28, oct./déc. 1997. SADEK, Maria Teresa. Judiciário e arena pública: um olhar a partir da ciência política. In: GRINOVER, Ada Pellegrini; WATANABE, Kazuo (Org.). O controle jurisdicional de políticas públicas. 1. ed. Rio de Janeiro: Forense, 2011. SCHMIDT-AβMANN, E. Sobre el objeto del procedimiento administrativo em la dogmática administrativa alemana. In: VAZQUEZ, Javier Barnés (Org.). El procedimento administrativo en el derecho comparado. Madri: Civitas, 1993. SIRINELLI, Jean. Les transformations du droit administratif par le droit de l’Union Européenne. Paris: LGDJ, 2011. SUÈDE. Författning 1974. Constitution de 1974. Approuvée le 1o janvier 1975. Disponible sur le site: <http://www.servat.unibe.ch/icl/sw00000_.html>. Consulté le: 12 juil. 2012. SUISSE. Bundesgerichtsgesetz, BGG. Loi du 17 juin 2005. Disponible sur le site: <http://www.admin.ch/ch/d/sr/173_110/index.html>. Consulté le: 12 juil. 2012. ______. Bundesgesetz über das Verwaltungsverfahren. Loi du 20 décembre 1968. Disponible sur le site: <http://www.admin.ch/ch/d/sr/1/172.021.de.pdf>. Consulté le: 12 juil. 2012. __________. Verfassung der Schweiz. Constitution approuvée par le référendum du 12 mars 2000. Disponible sur le site: <http://www.servat.unibe.ch/icl/sz00000_.html>. Consulté le: 12 juil. 2012. UNIVERSIDADE FEDERAL FLUMINENSE. (Université Fédérale Fluminense). Núcleo de Ciências do Poder Judiciário (Centre des Sciences du Pouvoir Judiciaire). Projeto Acadêmico do Programa de Pós-Graduação Justiça Administrativa (Projet Académique du Programme de Post-grade en Justice Administrative)- PPGJA-UFF. Niterói, 2008. VENEZUELA. Constitución de la República Bolivariana de Venezuela de 1999. Disponible sur le site: <http://www.filosofia.org/cod/c1999ven.htm>. Consulté le: 12 juil. 2012. WOLFF, Hans J.; BACHOF, Otto; STOBER, Rolf. Direito administrativo. Traduction Antônio F. de Sousa. Lisboa: Fundação Calouste Gulbenkian, 2006. ZAFFARONI, Eugenio Raúl. Poder Judiciário. São Paulo: Revista dos Tribunais, 1995. ZILLER, Jacques. Administrations comparées. Les systèmes politico-administratifs de l’Europe des Douze. Paris: Montchrestien, 1993. 188 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. PRÉCÉDENTS JUDICIAIRES BRÉSIL. Supremo Tribunal Federal (Cour Suprême Fédérale). AI 59.7182. 2ª Classe. Rapporteur min. Cezar Peluso. Brésilia, DF. Publié le: 6 nov. 2006. Disponible sur le site: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=390282>. Consulté le: 12 juil. 2012. ______. Supremo Tribunal Federal. (Cour Suprême Fédérale). AI 64.1911, AgR. 1ª Classe. Rapporteur min. Cármen Lúcia. Brésilia, DF. Publié le: 1o oct. 2009. Disponible sur le site: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=603416>. Consulté le: 12 juil. 2012. ______. Supremo Tribunal Federal. (Cour Suprême Fédérale). AI 685-866-AgR. Rapporteur min. Ricardo Lewandowski. Brésilia, DF. Publié le: 22 mai 2009. Disponible sur le site: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=593889>. Consulté le: 12 juil. 2012. ______. Supremo Tribunal Federal. (Cour Suprême Fédérale). MS 25.787-3/DF. Rapporteur min. Gilmar Mendes. Brésilia, DF. Publié le: 14 sept. 2007. Disponible sur le site: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=486706>. Consulté le: 12 juil. 2012. ______. Supremo Tribunal Federal. (Cour Suprême Fédérale). RE 116.683. Rapporteur min. Celso de Mello. Brésilia, DF. Publié le: 13 mar. 1993. Disponible sur le site: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=206504>. Consulté le: 12 juil. 2012. ______. Supremo Tribunal Federal. (Cour Suprême Fédérale). SL 47 AgR. Pleno. Rapporteur min. Gilmar Mendes. Brésilia, DF. Publié le: 30 avr. 2010. Disponible sur le site: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=610254>. Consulté le: 12 juil. 2012. ______. Supremo Tribunal Federal. (Cour Suprême Fédérale). Súmula Vinculante nº 3. Session Plénière, 30 mai 2007. Brésilia, DF. Publié le: 6 juin 2007. Disponible sur le site: <http://www.dji.com.br/normas_inferiores/regimento_interno_e_sumula_stf/0003vinculante.h tm>. Consulté le: 12 juil. 2012. ______. Tribunal de Contas da União. (Cour des Comptes de l’Union). Regimento interno. Approuvé par la Résolution Administrative nº 246, du 30 novembre 2011. Disponible sur le site: <http://portal2.tcu.gov.br/portal/page/portal/TCU/normativos/sobre_normativos/regimento.pd f>. Consulté le: 12 juil. 2012. ______. Tribunal de Contas da União. (Cour des Comptes de l’Union). Acórdão 2.553/2009. Session Plénière. Rapporteur min. José Jorge. Brésilia, DF. Publié le: 4 nov. 2009. Disponible sur le site: <https://contas.tcu.gov.br/juris/SvlHighLight?key=ACORDAO-LEGADO- 80678&texto=32353533&sort=DTRELEVANCIA&ordem=DESC&bases=ACORDAO- LEGADO;DECISAO-LEGADO;RELACAO-LEGADO;ACORDAO-RELACAO- LEGADO;&highlight=32353533&posicaoDocumento=0>. Consulté le: 12 juil. 2012. 189 Revista Juris Poiesis - Rio de Janeiro. Vol.22-n°28, 2019, pg.157-189. ISSN 2448-0517 Rio de Janeiro, 29 de abril de 2019. ______. Tribunal Regional Federal da 2ª Região. (Tribunal Régional Fédéral de la 2º Région). AG 201102010109190. 5a Classe. Rapporteur juge Ricardo Perlingeiro. Publié le fév. 2012. Disponible sur le site: <www.trf2.jus.br>. Consulté le: 12 juil. 2012. ______. Tribunal Regional Federal da 2ª Região. (Tribunal Régional Fédéral de la 2º Région). Regimento interno. Diário da Justiça da União, du 29 janvier 2009. Actualisé jusqu’à l’Altération au Règlement nº 26, du 14 mai 2012. Disponible sur le site: <http://www10.trf2.jus.br/ai/regimento-interno/ >. Consulté le: 12 juil. 2012. CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Radilla Pacheco vs. México. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 23 de Noviembre de 2009. Serie C No. 209. Disponible sur le site: < http://www.ordenjuridico.gob.mx/JurInt/STCIDHM4.pdf >. Consulté le: 12 juil. 2012. Submetido em: 20/02/2019 Aceito em: 27/03/2019 
work_cmhqxj426jftpjnuv4ggjmn75e	----	PII: 0047-2352(90)90018-7 Jourml of Criminal Justice Vol. 18, pp. 33-41 (1990) All rights reserved. Printed in U.S.A. 0047-23x/90 $3.00 + .oo Copyright 0 1990 Pergamon Press plc Evaluating Criminal Justice Programs: Establishing Criteria TOMAS MIJARES Detroit Police Department and Criminal Justice Department Detroit, Michigan 48221 ROBERT BLACKBURN Center for the Study of Higher and Postsecondary Education University of Michigan Ann Arbor, Michigan 48109 ABSTRACT Directors of 239 four-year undergraduate criminal justice programs in the United States were asked to nominate the outstanding programs in that country and to state the criteria upon which they made their assessment. Eleven criteria and twenty-four institutions were mentioned by four or more directors. Institutional data produced moderate correlations between the frequency of mention and many of the indicators for the criteria. Similarities and differences with quality criteria found in ratings of more established fields of study are discussed. PROBLEM/OBJECTIVES Reliance on higher education as a means of legitimizing newly emerging professions has been discussed extensively in the litera- ture of higher education. As a relatively new academic discipline, with beginnings not un- like business administration, engineering, and nursing, criminal justice education has al- ready been the subject of several comprehen- sive studies (Pearson, Moran, Berger, Lau- don, McKenzie, and Bonita, 1967; Tenney, 1971; Sherman, 1978; Ward and Webb, 1984). Although the studies may have approached the topic from differing philosophical per- spectives and they may have differed also in their purposes, data-collection and analysis methods, and in many of their conclusions about the value and efficacy of criminal jus- tice education programs, they were unani- mous in their recommendations for further and continuous research on both the product and delivery system of criminal justice education. To understand why a program is consid- ered “good,” the present authors attempted to establish criteria for such judgments by sur- veying chair-people of undergraduate pro- grams in criminal justice. Criticisms of com- parative studies of academic programs were taken into account. Understandably, subjects (deans, program directors, faculty members, etc.) who are not highly rated tend to be crit- ical of a study regardless of the care and thor- oughness with which it was undertaken. An 33 34 TOMAS MIJARES and ROBERT BLACKBURN attempt was made to mitigate this criticism by employing a two-part open-ended ques- tionnaire, which asked: “What are the lead- ing criminal justice education programs’?” and “What are the criteria that determine their relative status?” Thus, respondents were al- lowed to identify the factors by which they determine excellence. Although some dis- agreement over rankings is inevitable, the au- thors hope readers will realize that reputa- tional studies are necessarily based on the perceptions held by peers. The purpose of this study was not to conduct a popularity contest but to enhance understanding of the qualities raters use to form their impressions of ex- cellence. In addition, the reader must rec- ognize that frequency of mention is not an absolute indicator of quality. A program mentioned twenty times is not necessarily twice as good as a program mentioned ten times. In addition, even those not mentioned can be quality programs. METHODOLOGY As of 1988, excluding associate-degree criminal justice programs in two-year colleges and schools with only graduate programs, 215 programs have remained in operation in the United States since the termination of the Law Enforcement Education Program (L.E.E.P.). The director of each of these pro- grams (dean, department chairperson, etc.) was invited to nominate and rank the top ten undergraduate programs in the country’ and to describe what it was that made each of those programs distinctive.* After thirty-six respon- dents who said they did not know enough about programs across the country to rank them (persons new in their positions or from small, isolated programs) were dropped from the analysis, 112 (56 percent) criminal jus- tice department directors supplied all or part of the requested information.’ The second phase of the study involved identifying the descriptive variables used by the directors in making their rankings.” In the third phase a questionnaire was sent request- ing information on institutional characteris- tics from the twenty-four programs that re- ceived the highest number of nominations. DATA Seventy-nine programs were listed at least once. Four were mentioned fifty-six to sixty- five times and constitute a distinct cluster at the top. One program was nominated thirty- eight times. It stands alone, for the next most frequently mentioned program was named nineteen times. Twenty-four programs were mentioned four or more times by the 1 12 di- rectors. These twenty-four constitute the data base for the analysis. Table 1 lists the insti- tutions by ranking and identifies the criteria established by the respondents for each ranking. Eleven other schools were listed three times, twenty-one were mentioned twice, and twenty- three were cited once. These fifty-five schools were excluded from further study because, when the nominations are so few, there is in- sufficient data with which to make compar- isons. The twenty-four programs mentioned four or more times provided a wide enough range to test variable relationships. RESULTS Criteria Content analysis produced eleven factors (variables) associated with more highly rated institutions. They were (1) general reputa- tion; (2) faculty credentials (quality of uni- versity from which the final degree was earned); (3) faculty research production; (4) curriculum (quality and breadth of course of- ferings); (5) public service; (6) professional- association activity; (7) coexistence of grad- uate study; (8) resources and physical facil- ities; (9) quality and number of students en- rolled; (IO) size of the program; and ( 11) age (number of years in existence). Each of the factors correlated highly with the number of times the institution was men- tioned as a leader in the field. Four had Pear- son r values over .90: curriculum, faculty credentials, faculty research production, and T A B L E 1 C H A R A C T E R IS T IC S O F H IG H L Y R A T E D C R IM IN A L J U S T IC E P R O G R A M S In st it u ti o n s C ri te ri a A B C D E F G H IJ K L M N O P Q R S T U V W X T o ta l * (6 5 ) (5 9 ) (5 6 ) (5 6 ) (3 8 ) (1 9 ) (1 9 ) (1 7 ) (1 6 ) (1 5 ) (1 4 ) (1 4 ) (1 2 ) (1 2 ) (1 1 ) (1 0 ) (9 ) (9 ) (8 ) (7 ) (6 ) (5 ) (4 ) (4 ) G en er al re pu ta ti on 20 15 17 15 12 5 3 2 5 5 7 7 3 5 2 2 4 5 5 3 3 0 2 2 14 9 F ac ul ty cr ed en ti al s 37 38 35 21 30 19 14 16 9 13 10 8 9 8 6 7 6 5 4 1 3 4 0 30 4 R es ea rc h 21 21 15 20 14 6 0 7 7 4 4 4 2 5 6 4 1 1 0 1 1 1 0 : 14 7 C ur ri cu lu m 10 16 10 15 8 6 4 2 3 2 0 4 3 0 1 1 1 3 0 1 1 0 0 0 91 P ub li c se rv ic e 2 2 1 3 1 1 1 2 1 1 0 0 0 1 1 1 1 1 0 0 0 0 0 0 20 A ss oc ia ti on ac ti vi ty 3 2 3 2 0 0 2 2 0 0 1 1 1 1 0 1 0 0 0 0 0 0 0 0 19 G ra du at e sc ho ol 7 6 5 7 5 1 0 1 3 0 1 0 4 0 1 1 1 1 0 1 0 1 0 47 S iz e 5 3 4 3 1 0 2 0 0 2 0 0 1 0 1 0 0 0 0 0 0 0 0 : 22 R es ea rc h a n d fa ci li ti es 4 4 8 1 3 0 0 1 0 2 0 1 0 1 0 0 1 0 0 0 0 0 2 0 28 S tu de nt s 14 23 8 8 4 8 4 6 1 3 0 4 1 2 0 2 1 2 2 0 0 0 tl 0 93 A g e 10 3 1 3 1 16 00 01 00 20 21 10 ~ 2~ ~ ~ 34 * T h e nu m be r of ti m es in st it ut io ns A (B , C , D , .) w er e m en ti on ed by th e ra te rs 36 TOMAS MIJARES and ROBERT BLACKBURN general reputation. The lowest correlation was for age of the program, r = .62 (see Table 2). In a multiple regression, the multiple R and the R* for the variables predicting fre- quency of mention (excellence, quality) were over .99. Scholarly Training Relationships Scholarly training of the faculty is fre- quently used as an indicator of program qual- ity. Having a doctorate is one indicator of ad- vanced training. Consequently, the percentage of the faculty with doctorates was examined. Second, professional experience allows fac- ulty members immediate access to agency data banks that nonprofessionals have difficulty gaining. Use of such actual data promotes an application of theoretical information. Thus, the percentage of faculty members with agency experience was also used as an indicator of quality. Third, since full-time faculty mem- bers are more able to devote their time and resources to academic matters, such as coun- seling students and conducting research, than are part-time faculty members, the percent- age of full-time faculty members was used as an indicator of faculty quality. Moderate relationships were found be- tween program rating and two of the three measures of faculty quality (percentage of faculty members with agency experience: r = .37, and the percentage of full-time faculty members: r = .37). No significant relation- ship was found between program ranking and the percentage of doctorates (r = .05). Sig- nificant differences were evident between the top twenty-four programs and the remaining 21.5 in each of the measures. Over sixty-two percent of the faculty members of the top twenty-four had doctoral degrees while only thirty-three percent of the remaining 21.5 had them. Similarly, fifty-three percent of the faculty members of the top twenty-four had worked in criminal justice agencies while only thirty-six percent from the remaining 2 15 had done so. Over seventy-five percent of the faculty members of the top twenty-four had full-time appointments while only fifty-two percent of the faculty members of the re- maining 215 programs were full-time. Research Productivity Research production has long been consid- ered an accurate indicator of program quality in several disciplines. One of the most readily employed measures of research production is published journal articles (Garfield, 1972). The relationship between an institution’s rank among the top twenty-four programs and the number of journal articles published by its faculty (r < . 10) failed to achieve significance. In view of the absence of a relationship be- tween rank and this quantitative measure, more inferential methods were employed. A Ph.D. from a research university generally indicates a proclivity toward scholarly activity. No sig- nificant frequency relationship was found, however, between being rated among the top twenty-four programs and the percentage of faculty with such degrees from scholar-pro- ducing universities (r < .lO). Because full- time faculty members are more likely to con- duct research (MaGarrell, 1978), it could also be hypothesized that the percentage of full- time faculty members should correlate with being rated among the top twenty-four pro- grams. Although this correlation was mod- erately positive (r = .37), there was no sig- nificant relationship between the percentage of full-time faculty and the number of articles published over a three-year period (r < 10). The lack of journal articles published by criminal justice faculty members and the ac- companying lack of significant comparisons suggest that the traditional measures of re- search production are currently not effective for assessing quality in this field. The crea- tive criminal justice faculty research efforts are being channeled into other activities. A review of the faculty vitae from six of the top twenty-four programs indicated that these ed- ucators participated in the following activities: 1. 2. 3. 4. 5. 6. 7. editing books writing textbooks for use by students writing textbooks for use by professionals assuming leadership roles in professional associations conducting and participating in conferences and symposia writing grants writing agency grants T A B L E 2 C O R R E L A T IO N S O F D E T E R M IN A N T S O F P R O G R A M Q U A L IT Y R es ou rc es F ac u lt y F ac u lt y an d F ac u lt y F ac u lt y P u bl ic A ss oc ia ti on G ra du at e P h ys ic al N u m be r o f P ro gr am F re qu en cy R ep u ta ti on C re de n ti al s R es ea rc h C u rr ic u lu m S er vi ce A ct iv it y P ro gr am S iz e F ac il it ie s S tu de n ts A ge F re q u en cy 1 .0 0 0 0 R ep u ta ti on .9 4 1 5 l. O C Q O F a cu lt y c re d en ti a ls .9 3 8 5 .8 5 1 5 1 .0 0 0 0 F a cu lt y r es ea rc h .9 4 5 8 .8 5 1 9 .8 9 8 0 1 .0 0 0 0 C u rr ic u lu m .9 3 3 7 .8 4 6 5 .8 6 5 1 .8 9 6 1 1 .0 0 0 0 F a cu lt y p u b li c se rv ic e .7 2 8 7 .6 1 9 4 .6 4 8 9 .7 3 2 5 .7 2 6 7 1 .0 0 0 0 F a cu lt y a ss oc ia ti on a ct iv it y .7 6 9 4 .7 0 0 3 .7 0 9 5 .6 4 3 5 .6 4 0 1 .6 0 6 3 l. O O oO G ra d u a te p ro g ra m .8 9 5 4 .8 2 5 1 .8 0 6 2 .8 9 6 8 .8 6 4 7 .6 2 9 0 .5 9 6 9 1 .0 0 0 0 S iz e .8 9 4 4 .8 1 8 4 .8 2 4 3 .7 9 1 5 .7 8 0 0 .5 9 6 6 .7 6 2 4 .7 7 0 2 1 .0 0 0 0 R es ou rc es a n d p h y si ca l fa ci li ti es .7 5 8 5 .7 5 7 7 .7 8 1 9 .6 7 1 6 .6 2 1 3 .3 6 0 9 .6 1 7 5 .5 9 5 3 .7 4 4 8 1 .0 0 0 0 N u m b er o f st u d en ts .8 4 0 4 .7 5 5 9 .8 4 8 2 .7 9 7 6 ,8 5 9 s .6 7 8 8 .6 7 0 7 .6 7 5 5 .7 0 5 2 .6 0 1 7 1 .0 0 0 0 P ro g ra m a g e .6 1 9 4 .5 7 7 4 5 5 8 2 .5 1 1 6 .4 8 9 4 .5 0 4 6 .6 4 7 8 .4 7 5 9 .6 8 9 2 .2 9 6 4 .5 5 1 2 l. oo oO _ .A ~ . I - - - > v - ~ _ \_ _ _ r, , ., > s _ “_ -- - . _ - -_ _ _ -. ,. . _ - r, > - - TOMAS MIJARES and ROBERT BLACKBURN 38 8. 9. evaluating criminal-justice agency projects and operations supervising the implementation of criminal- justice agency projects and operations In addition, some schools have expanded the field’s body of knowledge through insti- tution-wide research programs. For example, the Office of International Criminal Justice at the University of Illinois-Chicago and sim- ilar programs at other leading schools con- tribute to the overall knowledge base. How- ever, participation in these programs requires such a commitment of time and resources that individual research projects must be post- poned, the immediate application of this knowledge is not presented through tradi- tional academic media, and the field does not enjoy the same degree of scholarly scrutiny, recognition, and prestige by scholars from other academic fields. Curriculum Quulity Researchers have employed a wide variety of means to measure curriculum quality, such as textbook examination (Sherman and McLeod, 1979) and syllabus review (Kuy- kendall and Hemandez, 1975). Relationships between program rank and the number of courses and degrees offered were not signif- icant. However, when course descriptions in school catalogs were examined, a recurring pattern was observed, in which each of the top twenty-four programs offered at least the undergraduate course in research methods (3.1 courses per school). In contrast, only 125 (59 percent) of the remaining 2 15 schools offered any coursework in research methods (less than one course per school). Public Service A measure of public-service activity by criminal justice faculty was obtained by ask- ing the program directors to indicate the number of hours donated by the entire de- partment per term. The range of responses was wide. Five of the directors gave no response, and the remaining responses were estimates. No significant relationship (r < . 10) was found between institutional rating and the number of hours donated in public service by mem- bers of the criminal justice department. (The absence of a relationship probably was less a function of the actual time donated by faculty and more a consequence of the absence of a consistent record-keeping system for the amount of time donated to public service.) Prqfessional Associations Association membership provides tangible benefits to the individual faculty member, to the institution, and to the field, particularly when this membership reflects office holding or scholarly activity sanctioned by these as- sociations. The activity level of criminal jus- tice faculty members in professional/aca- demic associations was assessed by asking the program directors to indicate by title the of- fices held by faculty members in profes- sional/academic organizations within the past five years. There was a moderate correlation (r = .43) between institutional rating and the number of association offices held by mem- bers of each criminal justice education program. Graduate Programs The coexistence of a graduate program was associated with institutional ranking. Twenty- one (88 percent) of the top twenty-four pro- grams granted a master’s degree and eleven (46 percent) granted the Ph.D. Within the top twenty-four, the first five granted the Ph.D., whereas only one of the bottom five in that group did so. In contrast, only seventy-nine (37 percent) of the remaining 2 15 programs granted the master’s degree and four (2 per- cent) granted the Ph.D. Or.gunizational Structure Organizational structure was highly asso- ciated with rating. The top seven programs existed as independent schools within their universities. The last seven of the top twenty- four programs (as well as all of the remaining 215 programs) were departments and had not received this level of autonomy. Evaluating Criminal Justice Programs: Establishing Criteria 39 Student Qualities Traditional discussions of the quality of students in higher education tend to focus on items such as secondary school preparation, SAT/ACT scores, number of students en- rolled and graduated, student/faculty ratios, and commuter/resident status (Chickering, 1974). Data provided by the program direc- tors indicated very little variation among the top twenty-four schools for these indicators. However, when the quality of in-service stu- dents was examined in terms of the relation- ship with career background, differences were found. In-service students (those already em- ployed by a criminal justice agency) in the lowest-ranked schools of the top twenty-four tended to come from the law-enforcement portion of the criminal justice system while in-service students from the most highly ranked schools tended to come from more di- verse backgrounds (i.e., they were more evenly distributed among law enforcement, courts, corrections, private security, and the military). However, the data submitted by the respondents were not sufficient to allow sta- tistical comparisons. Size Program size affects the amount of expo- sure to academic diversity, the number of grants, the richness of physical facilities, and public awareness of the program. The most easily measured elements of size are the number of students enrolled, the number of students graduated, the number of courses of- fered, and the number of faculty. A multiple correlation equation produced significant re- sults between institutional rating and these size factors (R = .9662 and R2 = .9335). A sig- nificant difference was found between the means of each of these measures for the twenty-four most frequently mentioned pro- grams and the corresponding means of these measures for the remaining 2 15 programs. Age The age of a program correlated moder- ately with institutional rating (r = .34). A more accurate picture was developed by comparing the top twenty-four to the remain- ing 2 15. Eighteen of the top twenty-four (75 percent) received the full twelve years of benefits of the Omnibus Crime Control and Safe Streets Act of 1968. The entire twenty- four received an average of 10.0 years of benefits. Only twenty-four of the remaining 215 (11 percent) were already in operation when the Act was passed. The remaining 191 received benefits for an average of eight years. The present authors feel that any vocational educational program that survives without governmental assistance during a period of declining employment possesses some of the criteria for excellence. DISCUSSION Three themes have emerged from this study. First, the responses from the participating program directors indicate that program qual- ity has a variety of components, many of which act in concert (see Table 2). Some of the same factors employed in correlate-qual- ity rating studies of traditional programs have appeared in this nascent field and do not show signs of changing over time. General repu- tation, faculty credentials, and faculty re- search production are significant factors in all studies of academic quality (Webster, 1986). On the other hand, the quality of curricu- lum, the amount of public-service time do- nated, the coexistence of a graduate program, the amount and type of professional-associ- ation activity performed by faculty members, and the commitment of resources to long-term operations are seldom considered in tradi- tional rating studies, yet they matter for crim- inal justice programs.5 By identifying, com- paring, and evaluating these variables, many of which are within institutional control, schools that were not mentioned with any measurable frequency in this study can make adjustments in their own programs, not solely for the sake of institutional prestige but also for the improvement of the field. Similarly, information provided by this study can help governmental regulatory and legislative bod- ies in the disbursement and control of funds. 40 TOMAS MIJARES and ROBERT BLACKBURN Second, the findings suggested that the participating program directors identified dif- ferences between the top twenty-four and the remaining 215 programs in variables that re- flect a commitment to research and the ex- pansion of the body of knowledge. In many instances, criminal justice faculty members have been hired because of whom they know rather than what they know and because of their professional experience rather than their academic credentials. Although faculty cre- dentials have been progressively improved since the implementation of the Omnibus Crime Control and Safe Streets Act of 1968, the lesser-ranked programs still have a dis- proportionate share of part-time faculty who do not possess the skills, motivation, or re- sources to engage in the generation of knowl- edge. Despite the fact that criminal justice educators as a group are not participating in journal publication as frequently as their counterparts in other disciplines, faculty from the top twenty-four programs have been di- recting their creative efforts into alternative channels. Other variables have demonstrated fur- ther the difference between the top twenty- four and the remaining 215 programs in the commitment to research. Differences in cur- ricula have already been discussed. The greater contributions to public service by faculty in the top twenty-four indicate a stronger inter- est in being close to real-world data. Their more frequent activity in professional asso- ciations indicates a difference in the approach to disseminating the growing body of knowl- edge through annual conventions and other sanctioned activities. Their selection of stu- dents with more diverse backgrounds indi- cates that they are more interested in design- ing programs that expose students to different perspectives than are faculty in programs de- signed for a more homogeneous student body. The propensity of the leading programs to operate graduate programs concurrently in- dicates an interest not only in expanding the body of knowledge but also in developing competent scholars. Finally, the trend among the top twenty-four to be organized as auton- omous schools instead of departments indi- cates a commitment to long-term growth and continuous operations instead of providing a temporary academic service based on the availability of governmental funding. The third theme emerging from the study is that when current data are put into an op- erational and historical perspective, their im- pact on program quality and on the discipline becomes even more apparent. Schools in the top twenty-four have initiated faculty devel- opment plans so more faculty members pos- sess the experience of the practitioner and the academic credentials of the scholar. Where earlier students were primarily in-service law- enforcement officers attending classes for a variety of nonscholarly reasons, the majority now consists of preservice students who in- tend to pursue careers in all phases of crim- inal justice. In addition, based on direct ex- perience and conversations with faculty at other institutions, it appears that many stu- dents who are not majors are registering for one or two criminal justice courses for the purpose of general education and/or related electives. Where coursework was originally designed to improve the job-related skills of in-service students, it has become more con- ceptual and is becoming more integrated with the rest of the academic community. Where public service in the academic sense was vir- tually nonexistent in the field, its importance is now recognized as an excellent source of data and ideas for research projects. Where association activity was limited to associate and honorary membership in organizations composed primarily of criminal-justice prac- titioners, faculty members are becoming in- creasingly more active in organizations, such as the Academy of Criminal Justice Sciences and the American Society of Criminology, in which they can disseminate the fruits of their research. Where resources and facilities were initially developed for a quick profit in the true entrepreneurial spirit, the top twenty-four have concerned themselves more with long- term growth. Although the field must mature in each of the factors contributing to program excellence, the criticism directed at criminal justice in the mid-1970s was not unlike that directed to other fledgling disciplines. Evaluating Criminal Justice Programs: Establishing Criteria 41 RECOMMENDATIONS FOR FURTHER STUDY Without the social changes in American society and the attendant federal funding dur- ing the 196Os, criminal justice studies would not have experienced such a rapid growth. Further studies need to evaluate the effect of the educational process on the areas ad- dressed by the authors of the legislation fos- tering this growth. Particular attention must be paid to the use of higher education as a crime-fighting tool by preparing more effec- tive criminal-justice personnel. Accompanying such study, the effect of expanding the base of knowledge within the discipline and the effectiveness of applying this knowledge to immediate problems in so- ciety needs to be examined. The specific ele- ments of such study must include a longitu- dinal examination of the career tracks of criminal justice faculty and students, a cur- riculum analysis for relevance and appropri- ate level of intellectual sophistication, and an organizational examination for commitment to long-term operation. Finally, the increasingly important role of professional associations must be examined. In the absence of traditional faculty activities for research publication, these organizations will continue to serve as alternative channels for disseminating information. Recognition of the role to be played by the smaller, more specialized organizations can only enhance the development of this growing discipline. NOTES 1. Previous studies (Thomas and Bronick, 1984; Travis, 1987) of program quality were specifically con- cerned with doctorate-granting programs in criminal justice studies. We examined only undergraduate pro- grams because the overwhelming majority of beneficia- ries of the L.E.E.P. were undergraduate students. 2. The criteria for quality are established by the au- thors in most studies of academic programs. We al- lowed the respondents to establish the standards of qual- ity for this emerging field. 3. Although many of the program directors had had professional experience, they were academics. Each had earned a Ph.D. (but not necessarily in criminal justice). The raters were clearly qualified to make judgments in regard to program quality. 4. This article reports findings and does not elaborate methodology. The reader needs to remember that this phase of codifying responses is critical and is by no means straightforward. We used the comparative method of Glaser and Strauss (1967). 5. Had we used the preestablished criteria used in most program-rating studies, we would have failed to un- cover some of the dimensions of quality. REFERENCES Chickering, A. W. (1974). Commuting versus resident students: Overcoming educational inequities of living ofS_campus. San Francisco, Jossey-Bass. Garfield, E. (1972). Citation analysis as a tool in jour- nal evaluation. Sci 178: 471-79. Glaser, B., and Strauss, A. (1967). The discovery of grounded theory: Strategies for qualitative research. Chicago: Aldine. Kuykendall, J., and Hemandez, A. (1975). A curricu- lum development model-quality control programming in justice education. Police J 42: 20-22. MaGarrell, L. (1978). Part-time professors on the in- crease. Chron Higher Educ 15: 1. Pearson, R.; Moran, T. K.; Berger, J. C.; Laudon, K. C.; McKenzie, J. R.; and Bonita, T. J. (1967). Crim- inal justice education: The end of the beginning. New York: John Jay Press. Sherman, L. (1978). The quality of police education. San Francisco: Jossey-Bass. and McLeod, M. (1979). Faculty characteristics and course content in college programs for police of- ficers. J Crim Just 7: 249-67. Tenney, C. W. (1971). Higher education in programs in law enforcement and criminal justice. Washington, DC: United States Government Printing Office. Thomas, C. W., and Bronick, M. J. (1984). Assessing the quality of doctoral programs in deviance, crimi- nology, and criminal justice. J Crim Just 12: 12-27. Travis, L. W. (1987). Assessing the quality of doctoral programs in deviance, criminology and criminal jus- tice: A response to Thomas and Bronick. J Crim Just 15: 157-64. Ward, R., and Webb, V. (1984). The questfor quality. New York: University Publications. Webster, D. S. (1986). Academic quality ranking of American colleges and universities. Springfield, IL: C. C. Thomas. 
work_cmyzpjfglndnzc4odxifmpcd64	----	Seattle Town Meeting Targets Environmental Justice A 554 VOLUME 108 | NUMBER 12 | December 2000 • Environmental Health Perspectives NIEHS News Center Attacks Core Issues in the Land of Apples Seattle, Washington, is an area perhaps best known for high-tech names like Microsoft, Immunex, and Amazon.com. However, much of Washington is rural. The state is a leading producer of tree fruit, berry, and flower crops, which require extensive hand labor—picking and prun- ing—for cultivation and harvest. To meet this demand, Washington’s population of seasonal and full-time farmworkers now numbers about 90,000, according to a report titled Agricultural Work Force in Washington State 1999, published in June 2000 by Washington State Employment Security. Many of these workers and their families are regularly exposed to pesticides, as well as to wood smoke, because wood- stoves are a common source of heat in the rural areas where they live. Researchers at the University of Washington Center for Ecogenetics and Environmental Health (CEEH), located in Seattle, study susceptibility to pesticides, particulate matter in wood smoke, and a wide range of other toxicants from methyl- mercury to solvents to aflatoxins. The CEEH, one of 21 enviromental health sci- ences centers funded by the NIEHS, focuses primarily on the interactions among genet- ics, the environment, and human health. “The development of complex diseases such as many cancers and some chronic degener- ative neurological diseases may never be explained by genetics or environmental exposures alone,” says CEEH director David L. Eaton, a toxicology professor in the Department of Environmental Health and associate dean for research at the School of Public Health and Community Medicine. “CEEH researchers are taking a multidisciplinary approach to study the bio- chemical and molecular mechanisms that influence individual responses to environ- mental risk and exposures.” Approximately 50 CEEH investigators work in many disciplines, including med- ical genetics, epidemiology, toxicology, and pharmaceutical sciences. They are organized into five research cores focused o n h u m a n s y s t e m s . T h e B i o t r a n s - formation Core studies the metabolism of drugs and nondrug chemicals, and the Carcinogenesis Core studies interactions between environmental exposures and g e n e t i c t r a i t s a f f e c t i n g c a n c e r . T h e R e p r o d u c t i v e a n d D e v e l o p m e n t a l Toxicology Core studies the molecular and biochemical mechanisms of reproduc- tive and developmental toxicity, including birth defects, and the Neurotoxicology Core studies mechanisms of neurotoxic damage, including potential environmen- tal factors that may influence the develop- ment of chronic neurologic diseases such as Parkinson and Alzheimer diseases. Finally, the Cardiorespiratory Suscep- tibility Core studies cardiac and respirato- ry function and disease, including asthma and sensitivity to air pollution. The research cores are supported by five facility cores. The Molecular Biomarker Laboratory Core develops gene assays and provides high-throughput genetic analysis. This core is currently developing a new facility that will provide CEEH investiga- tors with access to gene expression array analysis, an addition that will allow investi- gators to study the effects of a variety of exposures or disease conditions on the expression of over 40,000 genes on the human “gene chip” (a glass chip that can be used to screen a single DNA sample for hundreds or thousands of genetic poly- morphisms). Arrays for rat and mouse genomes are also under development. Access to flow cytometry, laser cytome- try–confocal microscopy, and digital i m a g e a n a l y s i s i s p r o v i d e d b y t h e Analytical Cytology Core. The Transgenic Animal Support Core develops transgenic strains and currently maintains about 70 transgenic lines for investigators, and the Molecular Structure Visualization Core provides three-dimensional images of mol- ecules. The fifth core, the Electron Spin Resonance (ESR) Core, uses magnetic res- onance signals to detect and measure the presence of free radicals in tissues. Core Collaborations The CEEH’s organization and the wide variety of services it provides have fostered A center of widespread appeal. Activities at the CEEH run the gamut of science from research studies such as those of Lucio Costa (above, right) and Clement Furlong (above, left) on pesticides, to laboratory training for all levels of students, to outreach programs such as health fairs. Photos: (left, center) Kathy Sauber; (right) Joel Levin numerous collaborations both within the center and with outside facilities. For example, the nearly unique opportunity to work with both ESR and analytical cytol- ogy technology has given a strong boost to CEEH research into the role of the antiox- idant glutathione (GSH) in protecting cells from oxidative stress. This basic research may have wide implications for human health, because free-radical injury is thought to promote aging and contribute to rheumatoid arthritis, many types of can- cers, neurologic disorders such as Alzheimer and Parkinson diseases, and other chronic health problems. Environmental health professors James S. Woods, director of the ESR Core, and Terrance Kavanagh, director of the Analytical Cytology Core, are collaborating on GSH research. They are using ESR technology to measure free-radical produc- tion in intact cells exposed to prooxidant chemicals such as menadione and potassi- um dichromate. Initial results suggest that the ability of a cell to increase GSH pro- duction quickly may be more important than sustained high GSH production in protecting cells against damage caused by free radicals. In future work, Woods and Kavanagh plan to use ESR along with adherent cell analysis and sorting fluores- cent microscopy to determine if transgenic cells and mice that have increased capaci- ties for GSH synthesis are resistant to vari- ous chemicals that generate free radicals. This project has also used the services of the Transgenic Animal Support Core to develop mice that have increased ability to produce GSH, and those of the Molecular Biomarker Laboratory Core to test for the expression of the genes associated with GSH production. Other CEEH researchers have focused on pesticide exposures, specifically varia- tions in the enzyme paraoxonase, which breaks down certain pesticides including diazinon and chlorpyrifos. Lucio Costa, director of the Neurotoxicology Core and a professor of environmental health, and Clement Furlong, a member of the Neurotoxicology Core and a professor of medical genetics, have determined that people can vary in both the amount and type of paraoxonase their bodies produce. As a result, the ability to process common organophosphate insecticides can vary dra- matically among individuals—one adult can have 15 times the paraoxonase blood concentration as another, for instance. Low blood concentrations of paraoxonase, which are linked to less efficient processing of organophosphate pesticides, have also been have been correlated to carotid artery disease. During the first step in chemical oxi- dation of an organophosphate, an inter- mediate oxygenated form of the pesticide, called the oxon form, is created. “We’ve found that the genetic differences in sus- ceptibility bear more on the oxons than on the parent compounds, and that the oxon form is dramatically more toxic than the p a r e n t c o m p o u n d , ” s a y s F u r l o n g . Although the oxon form of a pesticide is generally produced by the body following exposure to the less toxic thioate form of the pesticide, some commercial formula- tions may contain small but significant amounts of the oxon form, and more may be formed following application, accord- i n g t o F u r l o n g . F u r t h e r m o r e , s a y s Environmental Health Perspectives • VOLUME 108 | NUMBER 12 | December 2000 A 555 Furlong, “Safety studies have looked at the parent sulfur compounds almost exclusive- ly, not at the oxons.” Furlong and Costa’s research is using the services of the Transgenic Animal Support Core, which is generating PON1 knockout mice that express isoforms of human PON1, the gene that codes for cre- ation of human paraoxonase. In addition, Elinor Adman and coworkers of the Molecular Structure Visualization Core are in the process of crystallizing paraoxonase to determine its structure. Better informa- tion on the molecule’s structure may allow paraoxonase to be engineered or modified to serve as a therapeutic agent for pesticide poisoning. F u r l o n g h a s d e v e l o p e d a h i g h - throughput assay for determining the type and amount of paraoxonase in blood, which reflects an individual’s susceptibili- ty to the oxon form of specific organo- phosphate pesticides. Currently, Costa a n d F u r l o n g a r e w o r k i n g w i t h o t h e r investigators in the university’s NIEHS- supported Children’s Environmental Health Research Center to study pesticide exposures in children, especially children of farmworkers. This project was based in part on the work of investigators in the R e p r o d u c t i v e a n d D e v e l o p m e n t a l Toxicology Core, which examines critical issues of age- and sex-related susceptibility that are often overlooked, says core direc- tor and environmental health professor Elaine Faustman, who also heads the chil- dren’s health center. The CEEH has also nurtured the development of another major research center, the U.S. Environmental Protection Agency (EPA) Northwest Center for Particulate Air Pollution and Health, which is devoted to detailing exposures, health effects, dosimetry, biomarkers, and mechanisms of particulate matter, especial- ly that found in wood smoke. This center grew out of the work of the Cardio - respiratory Susceptibility Core and is head- ed by core director Jane Koenig, an envi- ronmental health professor. Koenig and colleagues recently found significant associ- ations between amounts of fine particulate matter in the air and emergency room vis- its for asthma by Seattle children eattle [see EHP 107:489–493 (1999)]. They also found that some types of gaseous pollu- tants, such as carbon monoxide, and par- ticulate matter of various diameters corre- lated with increased cardiovascular mortali- ty in Phoenix, Arizona [see EHP 108:347–353 (2000)]. The CEEH is also seeding future work through its successful Pilot Project Program. A total of 24 pilot projects were funded during 1995–2000, the period of the first five-year CEEH grant. Results from 10 of the first 20 of these projects provided the basis for major grants totaling over $5.5 million. In addition, 11 journal articles and 12 abstracts have been pub- lished based on results from these pilot projects. Addressing Ethical, Legal, and Social Issues The CEEH is not only fostering basic research into gene–environment interac- tions but is also looking ahead to under- stand the potential ramifications of this research. This year the CEEH added a new Ethical, Legal, and Social Issues ( E L S I ) C o r e . T h e E L S I C o r e , w h i c h includes investigators from the Schools of Law, Medicine, and Public Health and Community Medicine, identifies and studies ethical, legal, and social implica- tions of scientific advances in the study of gene–environment interactions (“ecoge- netics”) and environmental genomics, or the study of how environmental factors affect the overall expression of genes in human tissues. The ELSI Core is especial- ly interested in how these issues affect genetic variations that are common and have a low probability of causing disease alone, but that may increase disease risk when combined with certain environmen- tal exposures. The focus of the core’s initial case study is on pesticide poisoning susceptibili- ty. “We want these case studies to be sci- ence-based, which is why we’re starting with a gene–environment interaction, where much of the science has already been done and where there is significant potential for ethical and legal ramifica- tions,” says Wylie Burke, ELSI Core deputy director and chairman of the Department of Medical History and Ethics. For example, once tests are com- mercially available to determine paraox- onase status and susceptibility to the effects of certain pesticides, extermination compa- nies might consider the use of such tests in their hiring. “Even though that makes logi- cal sense and seems like a way to protect people who are susceptible to certain chemicals, testing is also a way to label people and to deny them vocational oppor- tunities,” says Burke. Susceptibility research may also have implications for product testing and development. “Should persons with sensitive genotypes be used to set safe or minimum standards for expo- sure?” asks Burke. The ELSI Core also works closely with a public health genetics academic program sponsored by the Department of Epidemiology in the School of Public Health and Community Medicine. This program, developed by ELSI Core director Melissa Austin, trains university graduate students in the study of human genetics in the context of public health. Community Outreach and Education Program In addition to studying the future ramifi- cations of its research, the CEEH is also committed to helping the public make g o o d e n v i r o n m e n t a l h e a l t h c h o i c e s t h r o u g h t h e w o r k o f i t s C o m m u n i t y O u t r e a c h a n d E d u c a t i o n P r o g r a m (COEP). The program’s wide range of activities is illustrated by some of the arti- facts found in its offices. These include artwork created by students living near Chornobyl and brought to the CEEH by visiting Russian teachers, plaster fish used to indicate seafood type and portion size during interviews of non-English-speak- ing Asian–Pacific Islander communities, and a mercury exposure board game cre- ated by school students, the result of a curriculum developed during teacher training workshops. In its first years, the COEP published a 1999 study of seafood consumption and potential health effects from seafood conta- mination among Asian–Pacific Islanders through the EPA, piloted an Environ- mental Risk Information Service hotline, and partnered with the American Lung Association’s Master Home Environ- mentalist Program, which trains volunteers to help local residents reduce the risk of indoor air pollutants in their homes. The COEP recently joined forces with an existing NIEHS K–12 program titled Health and Environmental Resources for Educators at the University of Washington (HERE@UW). HERE@UW brings to the partnership a variety of curricula, exper- tise in conducting teacher workshops, and Tox-in-a-Box, an outreach kit in a brief- case that gives environmental health pro- fessionals the training and props they need to make successful K–12 classroom presentations. In addition to K–12 outreach, the COEP was actively involved in planning a 29–30 September 2000 town meeting, “ V o i c e s f o r H e a l t h y E n v i r o n m e n t s , Healthy Communities,” hosted by the CEEH [see sidebar, next page]. “The planning process for the meeting has given COEP staff an opportunity to con- nect with a wide range of community- based organizations,” says HERE@UW m a n a g e r J o n S h a r p e . “ F u t u r e C O E P opportunities will no doubt grow out of these new relationships.” –Kris Freeman A 556 VOLUME 108 | NUMBER 12 | December 2000 • Environmental Health Perspectives NIEHS News Environmental Health Perspectives • VOLUME 108 | NUMBER 12 | December 2000 A 557 NIEHS News Environmental justice was a key theme of community tes- timony at an NIEHS town meeting titled “Voices for Healthy Environments, Healthy Communities,” held 29–30 September 2000 in Seattle, Washington. Other major themes included concerns about the health effects of pes- ticide exposures (especially among farmworkers), ground- water contamination from radioactive waste at the Hanford Nuclear Site, and a desire for environmental health researchers to be advocates for disease prevention, not just providers of scientific data. More than 200 people attended the meeting, which was cospon- sored by NIEHS and the University of Washington Center for Eco- genetics and Environmental Health along with several community groups and the regional office of the U.S. Environmental Protection Agency. The NIEHS has held a series of town meetings throughout the country during the past four years in order to solicit public input in setting its research agenda. The meetings also provide a forum in which the American public can speak directly with NIEHS director Kenneth Olden and senior NIEHS staff to express their concerns and local experiences with environ- mental health problems. The morning before the meet- ing opened, Olden and other NIEHS representatives visited Seattle’s South Park neighbor- hood, which has a high percent- age of low-income and minority residents, and high loads of air, noise, and chemical pollution from freeways, airports, and industry. U.S. Congressman Jim McDermott (D–Washington) and Washington State Representative Velma Veloria accompanied NIEHS officials on the tour. The town meeting opened Friday evening with a welcoming ceremony that included dancing and com- ments from members of the Suquamish Tribe, and pre- sentations by more than 20 community groups, tribal nations, and youth groups. Saturday morning began with addresses from Olden and Washington State Senator Rosa Franklin, a retired nurse, who spoke on environmental justice. Said Franklin, “A growing body of evidence continues to show that low-income people—a disproportionate percentage of whom are people of color—are more exposed to environmental pollutants than the general population.” The theme of environmental justice continued during Saturday’s open microphone session, which included Latino farmworkers who testified about the effects of pesticide exposures. “Every time a worker moves a piece of fruit or a leaf, they get exposed to pesticides. They get overexposed,” said Guillermo “Bill” Nicacio, a family ser- vice worker with the Washington State Migrant Council. “During apple-thinning season we can tell who is thin- ning because of the redness of their eyes and the rashes on their hands.” During his keynote address, Lupe Gamboa, Washington State regional director of the United Farm Workers of America, AFL-CIO, said, “Farmworkers are treated this way because they don’t have political power and they don’t have economic power.” Gamboa also expressed concern about the lack of training for health care workers in detecting pesticide- induced injury and illness. Throughout the meeting, par- ticipants pressed for more com- munity involvement in research projects, and for researchers to help tackle the environmental health problems that communi- ties identify. “We do need research, but we also need action once we get the information. We need researchers to work with the communities to find solutions to the problems as well,” said Yalonda Sindé, executive director of the Seattle-based Community Coalition for Environmental Justice. Carol Dansereau, execu- tive director of the Washington Toxics Coalition, added that researchers should speak out about the limitations of scientific studies to predict exactly where pollutants will end up and how they will affect different populations. “We want to see decisions based not on risk assessment but on prevention,” she said. Saturday afternoon workshops were led by com- munity and labor leaders, center researchers, and rep- resentatives of local and federal agencies and indus- try. Congressman McDermott chaired a session titled “Air Pollution (Indoor and Outdoor) and Asthma.” Other workshop topics addressed chemical health risks to agricultural workers and their families and environ- mental justice issues. A series of smaller groups dis- cussed topics including water quality, contamination of seafood by marine toxins and pollution, toxic waste, children’s environmental health, and drinking water quality. Further information on the town meeting is avail- able at the “Voices for Healthy Environments, Healthy Communities” Web site at http://depts.washington. edu/townmeet/. –Kris Freeman Focused on the problem. Attendees at the NIEHS town meeting in Seattle consider information and opin- ions on the disparate effects of environmental pollutants on different populations. Kr is Fr ee m an Seattle Town Meeting Targets Environmental Justice 
work_cr24kcstwnd3boyos3rn2qy5um	----	Of rocks and social justice NATURE GEOSCIENCE | VOL 9 | NOVEMBER 2016 | www.nature.com/naturegeoscience 797 editorial One only has to play a game of ‘spot the geologist’ in San Francisco during the American Geophysical Union meeting to notice that many geoscientists are cut from the same fleece. Indeed, one thing that attracts students to studying geoscience is its culture, where they can establish camaraderie with people of similar inclinations that share interests such as outdoors activities1. In other words, many geoscientists choose the field because they fit in. The consequence of this self-selection is a club of likeminded people. Although membership to this club is not exclusive in principle, in practice it can feel that way to those who do not fit the mould. If geoscience departments truly want to increase diversity — whether this refers to gender, race, ethnicity or anything else — the focus needs to be on cultivating a more welcoming academic culture in which a diverse chorus of voices is valued. Geoscience is one of the least diverse fields of science at Western institutions. In the US, only about 7% of geoscience degrees at both undergraduate and graduate levels are awarded to underrepresented minorities1. The representation of women at degree level is better — they receive in excess of 40% of degrees1,2 — although the representation of women of colour remains appalling. The proportion of women drops off rapidly higher up the career chain3. This so called leaky pipeline has been attributed to many factors, but evidence from letters of recommendation for postdoctoral positions suggests that women are disadvantaged due to their gender from the beginning of their geoscience careers (Dutt, K. et al. 9, 805–808; 2016), most likely not by intention, but by unconscious bias. Those who fit the mould are seen as contributing more to their field than those who do not. There is no shortage of diversity programmes, initiatives and dedicated university administrators claiming to be championing diversity. But if these programmes are working, change has been decidedly slow. It has been shown that diversity programmes implemented by US corporations have not only failed to increase the representation of women and minorities in management roles, but some of these efforts have made the inequality even worse4. Funding diversity programmes allows companies and universities to say they are doing something to fix the problem, but better strategies that deliver actual progress are needed. Two main challenges stand in the way of achieving a diverse geoscience workforce representative of society: we need to attract more people who have not been wearing checkered shirts, walking boots and rucksacks since secondary school, and we need to retain them. On the first point, geoscience departments should branch out. Computer scientists, lab biologists, theoretical physicists and chemists can all contribute key insights to understanding the Earth. And with an increasing focus on sustainable development, it is absolutely essential that all regions of the world and all parts of society are working together. Children today learn relatively little about the geosciences before university, compared to the other branches of science. As a result, outdoors enthusiasm, positive undergraduate experiences and family support account for 80% of active geoscientists5. Conversely, for those to whom these factors do not apply, these doors into the field remain closed. Highlighting the diverse career opportunities and societal relevance of the geosciences could help to attract a broader range of students — after all, not all geoscience careers involve climbing mountains, rock hammer in hand. And then there is the problem of retention. Students from minorities can face systematic exclusion as they carve out careers. The prevalence of harassment — gender-based, race-based, or otherwise — in the academic workplace6 tells us that many geoscience departments are a long way from being inviting environments. Geoscience departments need to ensure that all of their members feel welcome, included, supported and appreciated. These cultural shortcomings are not easy to address, but deserve our energy. Mentoring programs can help, as can fostering support networks7,8. Even if we manage to make our academic environments more diverse, that does not mean that they are also inclusive. If we want to maintain any gains in diversity, we must create environments in which all geoscientists (regardless of colour, gender or inclination to climb a mountain) can flourish. Only then can we hope to stamp out discrimination and bias in the workplace. We owe it to our present and future colleagues to embrace all manner of people into the geosciences, just as we need diversity to tackle the hardest problems. To negotiate the tightening space within the planetary boundaries, two key prerequisits are a workforce that is representative of the world we live in, and as diverse a set of minds as we can get. ❐ References 1. Stokes, P. J., Levine, R. & Flessa, K. W. J. Geosci. Edu. 63, 250–263 (2015). 2. Huntoon, J. E. & Lane, M. J. J. Geosci. Edu. 55, 447–457 (2007). 3. Holmes, M. A., O’Connell, S. & Ongley, L. Nat. Geosci. 1, 79–82 (2008). 4. Dobin, F. & Kalev, A. Why diversity programs fail. Harvard Business Review (July 2016); http://go.nature.com/2egFwUt 5. O’Connell, S. & Holmes, M. A. GSA Today 21, 52–54 (2011). 6. Marín-Spiotta, E., Schneider, B. & Holmes, M. A. Eos http://doi.org/brxq (2016). 7. Huntoon, J. E., Tanenbaum, C. & Hodges, J. Eos http://doi.org/brxr (2015). 8. Sokol, J. Why the universe needs more black and latino astronomers. Smithsonian (23 August 2016); http://go.nature.com/2eg4iAA Despite much emphasis on diversity in the US, geoscience remains one of the least diverse scientific disciplines. If we want to achieve and maintain diversity, we need to make our work environments welcoming to a broad spectrum of voices. Of rocks and social justice Z O O N A R G M BH / A LA M Y S TO C K P H O TO © 2016 Macmillan Publishers Limited, part of Springer Nature. All rights reserved. http://go.nature.com/2egFwUt http://doi.org/brxq http://doi.org/brxr http://go.nature.com/2eg4iAA Of rocks and social justice References 
work_crf4zzbmqncinncqgd65hyi2ly	----	Family Matters 2011 No. 88 | 5 The wellbeing of Australian families is affected by the resources they have available at present and anticipate will be available in the future (Saunders & Zhu, 2009). Part of that anticipation consists of expectations about what may be left to them by their parents. Those expectations matter. They make a difference to economic planning and to family harmony. They provide young generations with additional assets. They often bring out strong family feelings. In particular, expectations about appropriate and inappropriate inheritance arrangements can lead to misunderstanding, conflict and disharmony in the family. People’s expectations are important also to researchers of family relations and values and to professionals who help people deal with their inheritance arrangements. Lawyers, counsellors, public trustees, for instance, all are involved in helping people make appropriate decisions about bequests. The courts often become the final destination of conflicts that tear families apart, sometimes for several generations. Attracting widespread interest, then, is a current debate about whether there has been a change in what parents are likely to leave, and in parents’ attitudes towards making bequests. One side of the debate proposes that the current older generation of potential inheritance givers can be seen mostly as “Hedonistic Self- Servers”. The other side proposes they can be seen mostly as “Sensible Squirrels”. It would be attractive to be able to take a one- sided perspective on elders as inheritance- givers. It is attractive to think about carefree grey nomads choosing between adventures while fending off decline. That softens the thought of the older generation as self-serving spenders. It also would be attractive to think about grey-headed fairy godmothers and godfathers dispensing gifts to their heirs. That softens the thought of the cautious, perhaps insecure saver. Neither of these perspectives fully covers the phenomena. We take up this debate. First, we lay out several lines of argument in support of the two conflicting perspectives. Then we Jeanette A. Lawrence and Jacqueline J. Goodnow Perspectives on intergenerational bequests Inheritance arrangements and family resources 6 | Australian Institute of Family Studies propose several reservations about taking one perspective or the other, point to a significant gap in the available evidence, and suggest some research that would move the debate beyond one-sided perspectives. For both parts, we draw on some of our own research, particularly a bank of over 200 inheritance narratives given to us by adults across a range of ages (Goodnow & Lawrence, 2008b; 2010; in press). We draw also on other studies, often in other disciplines. Competing perspectives on inheritance giving The debate comes down to the question of whether, in relation to inheritance arrangements, older people are currently thinking and acting more like Hedonistic Self-Servers or Sensible Squirrels. Each of these opposing perspectives focuses on what the older generation do with their financial resources in their old age. The focus is on how much they concentrate on spending their resources on their own pleasure, or on saving their resources for the contingencies of their old age and for having something to leave to their heirs. Perspective 1: The older generation as Hedonistic Self-Servers Identifying Hedonistic Self-Servers The Hedonistic Self-Servers perspective appears in the popular media, in the advertising world, and among some researchers. The argument goes along the lines of “You need to think about yourself more”. The popular term associated with this view of inheritance giving is “The SKIer” (an elder who is “spending the kids’ inheritance”; Rowlingson & McKay, 2006, p. 29). One Australian research group has taken up this side of the debate. Olsberg and Winter (2005) were investigating housing arrangements for the elderly. From their data, they concluded: The attitudes of many men and women towards inheritance has shifted as to what previously would have been considered “the right thing to do” in terms of traditional obligations and responsibilities to their children. Our data strongly suggest that many older people’s attitudes have taken on more of those of their Baby Boomer children; that is “put yourself first”. The desire to bequeath assets to the next generation seems to be significantly diminishing. (p. xii) This claim of a shift among elders towards the hedonistic values ascribed to Baby Boomers amounts to proposing an escalating cross- generational conflict between “your needs and interests—and mine”. At issue, then, is whether there has been a change over time in how elders use their resources—whether there has been a change in what they use for themselves compared with what they leave for their children. At issue also is whether present patterns of behaviour among inheritance-givers affect family resources and family harmony. Supporting the Hedonistic Self-Server perspective Five lines of argument have been offered as supporting the Hedonistic Self-Server perspective: (a) there is a concentration of wealth in older generations; (b) there is evidence of a drop in the amounts that older people are leaving; (c) there are strong advocates of later-life spending on oneself; (d) life in the 21st century is in “a world at risk”; and (e) progression through the life course brings changing demands and challenges. There is a concentration of wealth in older generations This raises questions about giving and keeping. Most older family members now have financial resources and assets that are potentially available for transfer to later generations. According to an Australian Bureau of Statistics (2010) report, the net worth of the average household in 2005–06 peaked at around $824,000 for the 55–64 age group and then decreased to around $575,000 for those in the over 75 age group. Although the average funds decreased with increasing age, there still was disposable wealth. This trend for older people to have a large share of the “wealth pie” has been consistent in Australia and other countries (Kelly & Harding, 2006; Productivity Commission, 2011). In effect, there is no shortage of money that could be left. There is evidence of a drop in the amounts that older people are leaving This trend has been observed in several countries. It especially raises the question of what older people are doing with their comparative wealth, and whether what could be left is being left, or is being spent. There is a distinct possibility that older people are spending money on themselves that they might otherwise have left to their children (e.g., Finch & Mason, 2000, for England; Kelly & Harding, 2006, for Australia). Another possibility is that older people, by dint of living longer, may be spending the money on medical and care expenses for the extra years. We probably need to distinguish between their discretionary The debate comes down to whether, in relation to inheritance arrangements, older people are currently thinking and acting more like Hedonistic Self-Servers or Sensible Squirrels. Family Matters 2011 No. 88 | 7 and non-discretionary spending, but in either case it adds up to having less to pass on. There are strong advocates of later-life spending on oneself The decision of whether or not to pamper oneself in later life is not made in a vacuum. Advocates of spending speak with several voices. Some groups are aggressively urging the older generation to spend their resources. For example, the website of SKI Club Australia (2008) has the motto, “You can’t take it with you. And the kids are all set up in their own career, so our motto is: ‘Help them out as best you can while you’re still around, then spoil yourself’”. Advertising targeting the elder dollar echoes this sentiment; it specifically advises older people on how to spend SKI money on cruises or tours (e.g., “DriveWA on the kids dime”, DriveWA, 2011). Life in the 21st century is in “a world at risk” A sense of risk promotes in people a firm distrust of institutions and an inclination to look after their own interests. Beck (Beck, 2009; Beck & Beck-Gernsheim, 2002) argued that life in this late modern era makes people more conscious of the need to take care of themselves. Social institutions, for instance, insist on dealing with people as individuals rather than as members of functioning family networks. Yet it is the “convoy” of family members working together that Antonucci and Jackson (2007, p. 680) saw as being so effective for giving family members a protective base. In contrast, isolated, individualised responses to institutional demands are well suited as reactions to recent financial crises, especially in the wake of collapsing banks and insurance companies. People who are self-funding their retirement are particularly vulnerable to global financial collapses and to the level of government provisions open to them. As a result, people turn in on their own resources. Elders, according to Beck and Beck-Gernsheim (2002) “can no longer think of themselves only as an ‘appendage’ to the family, but must increasingly see themselves as individuals with their own interests and rights, plans and options” (p. 131). Progression through the life course brings changing demands and challenges Increased attention to oneself is compatible with accounts of what occurs as people move through different periods of life. One major account of life course changes (Havighurst, 1967) points to the changing developmental tasks that occupy people’s attention and energies over time. As people approach older age, it is entirely reasonable for them to take greater interest in what they will do with their money. Part of that is attending to how they will fund their own needs as they age. Another part, according to the advocates of SKIing, also involves attending more to their comfort and adventures. Evidence that age makes a difference in attitudes to inheritance comes from an English study by Rowlingson and McKay (2006). They asked over 2,000 English respondents how much they agreed with statements such as “people should save in order to leave an inheritance”. Agreement turned out to be highest among those respondents below 30 and above 80 in age. It was lowest among those in the 50–59 age group. This group was most likely to be facing the costs of aging, and estimating their options before and after retirement. We also found differences in the specific inheritance norms expressed by younger and older adults, but of a different kind (Goodnow & Lawrence, 2008b). Although each age group displayed a mix of norms for judging inheritance arrangements, an older group with a mean age of 75 years (SD = 8.66) were more likely to be members of cluster groups identified by their endorsement of norms related to individual rights and family feelings. Members of a younger group with a mean age of 18.5 years (SD = 1.02), in contrast, were more likely to be in a cluster endorsing norms People who are self-funding their retirement are particularly vulnerable to global financial collapses and to the level of government provisions open to them. 8 | Australian Institute of Family Studies related to family heritage. We now need data on how these competing individual rights and family heritage norms are being expressed in patterns of spending and keeping. Perspective 2: The older generation as Sensible Squirrels Identifying Sensible Squirrels There is an alternative perspective. It involves seeing the older generation not primarily as SKIers, but as squirrels—squirrels saving their resources for rainy days. Those rainy days would be either in their own future or the future of their children. The current emphasis, however, is on saving and then using the money as needed for the demands and problems that they are experiencing or anticipating in their own future. This motif resonates with the experiences of older generations who lived through the Great Depression and the aftermath of World War II. Its iconic imagery is the box under the bed, along with a firm determination to have “at least enough to bury me decently” (as commented by one of the study participants; Goodnow & Lawrence, in press). Supporting the Sensible Squirrel perspective There are at least five lines of argument that counter the hedonistic perspective, which point to contemporary elders as being concerned bequesters, or at least as Saving Squirrels whose activities mean some resources are left for their children: (a) the concentration of wealth in older generations could give rise to a variety of patterns of giving; (b) there is evidence of parents’ commitments to making bequests to their children; (c) in a world of risk, bequests may be accidental instead of intended; (d) there is a distinction between during-life and end-of- life giving; and (e) progression through the life course involves striking a balance. The concentration of wealth in older generations could give rise to a variety of patterns of giving That concentration does not mean that elders will automatically spend their wealth on themselves. The average figures of concentrated wealth also can mask the variability in expendable finances in the older generation (Productivity Commission, 2011, p. 59). Older parents may have more than they had imagined to either leave or to use. This can be the outcome of tax laws, frugal living, careful saving, or, in some cases, an explosion in the value of the family home. Bequests have not entirely suffered in older people’s planning. They are common practice and often sizable. In one US study (Dynan, Sinner, & Zeldes, 2002), the size of bequests was up to six times the average earnings of an older group of elders. Although placing considerable value on leaving bequests, this group did not say they were saving specifically in order to make those bequests. According to Dynan et al., that kind of specification would have just meant adding another motive on top of their already careful and precautionary saving. There is evidence of parents’ commitments to making bequests to their children The wish to have something to leave the children transcends cultural and legal contexts. Although people may have a variety of reasons for making bequests, there seems to be a general perspective that one will leave some family legacy (Rowlingson & McKay, 2006). While inheritance gifts are more concentrated in the wealthy, that concentration is not exclusive to those with much to leave. The desire to leave something, however, may not sit lightly with a growing social expectation that older people should be prepared to contribute more to their own care needs. That expectation comes into collision with people’s desire to leave intact one particular source of potential wealth—the family home. Although people may have a variety of reasons for making bequests, there seems to be a general perspective that one will leave some family legacy. Family Matters 2011 No. 88 | 9 A recent draft report by the Productivity Commission (2011), for instance, proposed that older people should be expected to make contributions to their care. The Commission noted that over 83% of people of 65 and over own or are buying their own home. It proposed that a government-backed equity release scheme would allow these people to borrow against the equity in their homes with no (or limited) repayments until the home is transferred to another person. The journalist Ross Gittins (2011) vigorously took up this proposal, challenging people to discuss with him online the appropriateness of hanging onto the home as an intact resource. He argued that with the escalating cost of care, elders and their inheritance-conscious children can no longer reserve assets for passing on to younger generations. That argument is not popular. In our bank of narratives, one father who needed to move to assisted accommodation, for example, engaged in a running battle with his children about the quality and cost of different care facilities. He did not want to spend. They wanted him to spend. In the end, the children could not persuade him to sell the family home and go to the better facility. He preferred to keep the asset of the home intact for his heirs rather than to buy extra comfort and services for himself. In a world of risk, bequests may be accidental instead of intended Funds in excess of need may be accrued as people focus on making sure they have enough for their needs (Pestieau, 2003). Many people squirrel away their assets, hoping they will have enough to last them out. As a result, unforeseen death leaves some heirs with unexpectedly generous amounts. Their parents’ resources outlast their needs, with their frugal living and saving resulting in the generous proportions of these accidental bequests. One financial advisor told us about an older couple who had been particularly frugal in their spending during their early retirement. They wanted to make sure they had enough for when they were older. Now in their older years, they regretted not spending more when they were fitter. They had had more than enough to do so. According to Dynan et al. (2002): Wealth is something like traveller’s checks: you take them along on vacation “just in case”, but the odds are they will remain uncashed and available for sundry goods after the journey is complete. (p. 724) There is a distinction between during-life and end-of-life giving Analyses of parents’ transfers of resources need to include more than the will and other end-of-life provisions. One-sided support for the hedonistic perspective loses some of its power when other forms of transfer between generations are counted alongside bequests. Parents may have already given substantial amounts to their children during their lifetimes. Early, carefully intended transfers can be a reasonable response to legal regulations. In the US, for example, state taxes are likely to be levied on what is left at the time of a parent’s death. Consequently, many parents work out intricate ways of providing for their children over the years to avoid death taxes (Pestieau, 2003). In Australia, which has no death taxes, there are other restrictions on patterns of transfer (e.g., gift taxes). In Islamic countries, some distinct advantages are attached to giving assets away before death. It is possible, for example, to give money to one’s children, kin or foundations in ways that will leave little to be covered by the Koranic distribution codes that normally apply (Carroll, 2001). In general, there appears to be considerable variability in how people give resources to their children while they are alive compared with bequests. McGarry (1999), for example, found that transfers made during the parents’ lifetimes are more likely to benefit less well-off children. Inheritance bequests, however, are generally more likely to be equally divided between children. Similarly, unequal giving prompted by reciprocity seemed to be more acceptable among Japanese adult children while a parent was still alive, but less acceptable in inheritance situations (Izuhara, 2004). Progression through the life course involves striking a balance Regardless of historical changes, Erikson’s (1968) classic theory of psychosocial development continues to provide insights into the ways in which people balance competing demands. For all phases of the life course, it portrays the need for people to find their way through normative crises. These crises pull them in different ways that can lead to positive or negative resolutions of the crises (e.g., being over-self-protective or over-generous). Striking a balance between tendencies to be cautious or to be generous is another way of viewing the choices available to the wealthy generation. With the trend for people to live longer and more actively, the Eriksonian crisis that demands a balance between There appears to be considerable variability in how people give resources to their children while they are alive compared with bequests. 10 | Australian Institute of Family Studies “generativity and stagnation” probably is now more applicable to people of older ages. It is relevant to how older people see and use their resources. Their balancing act, set within broad social trends, is not only important for their children’s wellbeing, but for their own. Striking this balance is a prelude to handling Erikson’s next crisis of “integrity versus despair”, as they face the end of their lives. The timing of Erikson’s age-related crises has changed as people live longer and take longer to traverse early adulthood. People in early old age are therefore often still balancing demands made upon them by the next generation with the demands of their own living. Reservations and future directions for research We may ask if it matters which of the perspectives discussed here dominates the discussion of inheritance arrangements and future lines of research. Is there a possibility of resolving the debate on one side or the other? Our answer to these two questions is, “Yes, it matters, but no, a resolution that favours only one side is not feasible”. The direction now needed, we suggest, is one of specifying reservations to one-sided solutions, and the research that would help fill the gaps that these reservations highlight. Our reservations are of several kinds. They start with the need for attention to diversity: diversity in parents’ motives, forms of wealth, the way in which wealth is distributed, the way in which bequests are communicated, and the nature of the match between the views of generations. Still to receive close attention is a particular gap that has to do with the interplay between norms that pull in different directions, and with the circumstances that help shape the norms that people hold about what is feasible and what should happen. Parents’ motivations for making bequests can take several forms It is unlikely that parents’ motivations can be reduced solely to the two perspectives of hedonism or careful squirreling for rainy days or late-life demands. What is needed then is to specify other diverse forms that motivations may take. One move in this direction is the proposal that even if we cut motivations down to two forms (in this case, altruism and exchange), the critical issue will be the relative strengths of these two (e.g., see McGarry, 1999). An alternative direction involves exploring parents’ motives in ways that allow diversity to come to the surface. An example is a study by Sousa, Silva, Santos and Paträo (2010). They analysed people’s stories of critical incidents related Family Matters 2011 No. 88 | 11 to inheritance in Portugal. There, distributing equal shares to one’s children is the law, and people have freedom to bequeath only a third of their assets as they choose. Nonetheless, Sousa and her colleagues discovered eight patterns of motivation. As well as equality, these included motives of altruism, exchange and egoism, and these motives were not completely at odds. Instead, they could be laid on a continuum defined by the endpoints of altruism and egoism, with equality and exchange as interim points. Along similar lines is the proposal that inheritance arrangements reflect the relative strengths of seeing them as predominantly serving instrumental or expressive functions. Parents’ support for their children, for example, can be instrumental (e.g., covering the costs of children becoming less dependent), expressive (e.g., specific gifts with loving symbolism that matches the gift carefully to the receiver), or a mix of the two (Nauck, 2010). Bequests exclusively involving money also can take expressive as well as instrumental forms of giving. The expression is often conveyed in an accompanying message (e.g., “This amount is for X’s special trip”). Several of our narrators, for example, told of inheritance arrangements where the older giver went to great lengths to say that certain gifts of money were expressing love and concern (e.g., fulfilling a child or grandchild’s dream of travel, giving them a car, or funding a special course of study; Goodnow & Lawrence, 2008a). In some cases, the specific sum of money may convey to the receiver that the money is for a special project that they had talked about previously within a loving relationship. Wealth can take several forms Wealth can take the form of cash, shares, bonds, interest-bearing deposits or superannuation funds. All these can be converted into cash in hand, ready for distribution. The older generation’s resources, however, may be tied up in a house, other property or a family business. These resources are not readily converted into funds that can be used or that can be distributed among several potential heirs. Money is divisible, houses are not. People may be willing to use cash in hand either for necessities or for pleasure, but they are less likely to plunder the family home. We now need analyses of how what is left or what is kept aside for other purposes varies with the main sources of parents’ wealth. The explosion in house prices, for instance, may well alter the sources of wealth. An ordinary suburban home may yield a generous estate, and the legacy of the house may then be large enough to affect the fortunes of the next generation. That effect may be positive (e.g., in the amount left) or negative (e.g., in the potential for family conflict over what is left). The proposals from the Productivity Commission (2011) and Gittins (2011) certainly make it clear that suggestions of turning the equity of the family home into useable funds can touch on sensitive family matters. Distributions can take varied forms A general starting point for wealth distribution seems to be to “treat the children equally”. Although that starting point may be honoured more in intent than in practice, any actual departures from equality seem to require explanation. We now need to pay closer attention to the nature of those justifications and to the circumstances that can give rise to departures from equal distributions to children. Drake and Lawrence (2000), for example, asked an older group of adults (aged between 63 and 91 years) how they would allocate a set amount of money between children who varied in gender, need, and merit (i.e., providing support for parents). Departures from equal distributions of money did not occur when the difference was only on the basis of gender, but they were more frequent on the basis of differences in need than merit. Need exerted the stronger pull. Still stronger were combinations of need and merit. Light and McGarry (2004) add further material. From within a sample of 5,000 mothers aged 45–80, they drew out 1,490 who had already made wills. Most of these mothers started with the intention of leaving equal shares. When they did make unequal bequests, those departures from equality were related either to the mother’s own poor health (probably giving more to children who provided care), their predictions of variations in their children’s income levels or, in the case of blended families, the biological status of their children (giving more to natural than adopted children). There is still much to learn about how elders perceive the personal circumstances of different family members as grounds for departures from strict equality. As one step forward, we presented research participants with a series of vignettes that asked for their approval or disapproval of other people’s inheritance arrangements that had caused problems (Goodnow & Lawrence, 2008a). In one of these, a mother leaves to one especially needy daughter more than she Departures from equal distributions of money … were more frequent on the basis of differences in need than merit. Need exerted the stronger pull. 12 | Australian Institute of Family Studies leaves to the others. When asked for their comments on this way of making unequal shares, people in general were sympathetic about the mother’s response to her child’s financial needs. The unequal distribution was acceptable, provided that some other criteria were met. Unequal shares should in no way stem from “favouritism”, “undue influence” or “collusion”. In addition, most participants felt that if there were to be an unequal distribution, the other heirs should be informed, and informed in advance. It should not come as a shock. Bequests on intentions may be communicated and carried out in several ways We have already mentioned one example of communicating intentions about bequests: the significance of telling people in advance that the distribution of shares will be unequal. Heirs, above all, need to know where they stand in planned arrangements. There is little sympathy for secretive readings of wills. While a certain amount of non-disclosure may be self-preserving, it also may leave an unpleasant memorial. The need now is to recognise that styles of communication and interpersonal interactions carry their own weight, over and above how items are distributed. To date, there has been little analysis of how forms of communication affect the acceptance of various inheritance arrangements. Yet to be understood, for example, is whether disinherited family members react like disenfranchised workers. Tyler (2000) has shown that people affected by decisions in occupational and legal settings are able to tolerate unfavourable outcomes if they think the processes of decision-making were procedurally fair. Testing the extent of concerns about communication and other procedures in inheritance situations could link inheritance studies to other areas where people make significant judgements that are tuned to their sense of fairness. Part of communication style also has to do with occasions when family members feel they have been treated unfairly in distributions, and turn to the court. It is time for a closer look at the way in which people present their case to lawyers or to the court, and the kind of advice and judgements they find there. They may well be advised, for example, to emphasise need rather than how well they looked after their parents. Orientations of two generations do not always match When parents and children are of one mind about the use of the parents’ assets, it is not too difficult to make decisions about what to leave and to whom. Consensus can be achieved. The family enters areas of conflict when what the parents expect is not what the children expect. That lack of consensus can even violate the sense of being a family. One of our narrators, for example, ended his story about an inheritance arrangement he felt went wrong with the comment: “And this was supposed to be a family!” We now need evidence of any variability or, alternatively, any consensus among older and younger members of the same families. More revealing will be information about the grounds for similar and different views. When, for instance, is a lack of match likely to occur and to provoke family tension? One kind of occasion, our narratives suggest, is when parents leave their assets to people that some family members do not regard as family. Subsequent wives or husbands, children from subsequent marriages, and stepchildren and adopted children are often seen as not being completely “in the family”, as not being entitled to the same bequests that should apply to “full” family members. A middle-aged man in one of our narratives, for example, asked his father to take a second mortgage on his modest house in order to help him, the son, get a home loan. Indeed, he argued that since his father had a new partner who would have residency rights for some years after the father died, he, the son, was effectively being cut out of his expected inheritance from the sale of the family home. Therefore, he claimed, he was due some extra financial support now; “That house is my inheritance. I am dependent on that when you go”. The father did not agree that his son was entitled to this form of financial support now. He countered that his own lifestyle would be severely cramped if there were a long-term debt hanging over his head. He had already covered what the son was entitled to expect: “I have helped you all your life. Now it is time for me to look after myself in my older years”. Responses to societal changes can vary, and are not all one-sided Responses to social changes such as global risk and financial crises are not exclusive to retirees. Younger people are likely to have more precarious holds on social resources than When parents and children are of one mind about the use of the parents’ assets, it is not too difficult to make decisions about what to leave and to whom. Family Matters 2011 No. 88 | 13 their elders. As Beck & Beck-Gernsheim (2002) pointed out, young people in the 21st century are increasingly obliged to construct their own “do-it-yourself biographies” as they work to establish career and family lives in uncertain circumstances. The uncertainties of contemporary life also mean that adult children have changing perspectives on relationships and responsibilities. Izuhara (2004) reported how a breakdown in traditional generational contracts for elder care in Japan has been accompanied by the expressed wish for more independence by adult children. In a study of inheritance expectations across six cultures, Nauck (2010) recently found further evidence of a general shift towards greater attention to giving personal objects that express relationships rather than material values. What needs to be considered are how relationships and circumstances may influence people’s behaviours and motives. A particular gap: The interplay of norms Up to this point, we have been concerned with reservations, gaps and future directions related to the recognition of greater diversity than the two perspectives of hedonism and squirreling imply. To these we need to add another largely overlooked issue—the interplay of conflicting norms that pull people in different directions. That issue is critical for understanding people’s behaviours and motives. People function on the basis of a variety of concerns or norms about what is the right thing to do in specific situations. These concerns or norms rarely point people to only one way to proceed. Concerns about family harmony and individual rights, for example, are likely to pull elders in different directions when they are trying to resolve different calls on their affections, values and resources. It would be acting out of character, for example, for previously loving and supportive parents to suddenly turn into SKIers once they have more money than they ever imagined. However much they are enticed by trips and cruises, they are not likely to entirely dismiss “our kids’ needs”. Similarly, squirrels may also be torn when they are working out how much to go on saving “just in case”, and how much they can give away. Some of the pull may depend on whose rainy day has now come. One wants to be “a good parent”, but not “a soft touch”. As experienced by the father in the second mortgage narrative, the pull of obligation (to be a provider) may compete with the pull of a sense of fairness—that one has “already done enough” for a particular child. We now need concepts and methods that will advance our understanding of the pull of different norms. That will involve understanding more about how people’s norms and values are influenced by cultural ideologies and legal codes. Even more searching and sorely needed are analyses that deal with how norms, ideologies and legal codes all interact with particular sets of circumstances. We need to know, for instance, the impact on people’s commitments of what they see as appropriate and right when their circumstances alter. Do considerations of what is appropriate and right, for instance, take precedence in the face of one’s own growing frailty, or are they given up or modified in the face of difficult circumstances? Does the pull of family harmony weaken in favour of concerns about individual rights and deservedness? Conclusion The financial wellbeing of a family obviously owes much to how its elders use the resources that are available to them. How these resources are passed on is closely tied to norms and expectations about obligation and entitlement. How the older generation exercises its own entitlement is not only a potential source of conflict within the family. It also remains an open question for family researchers. The pull of obligation (to be a provider) may compete with the pull of a sense of fairness—that one has “already done enough” for a particular child. 14 | Australian Institute of Family Studies Throughout, the evidence has pointed to the significance of achieving a balanced orientation to inheritance arrangements—a balance in approaches to spending and saving, a balance in judgements about the appropriate divisions of assets, a balance between competing norms. We have already pointed to the attraction of taking a one-sided view of how elders make their inheritance arrangements. One-sided views not only fail to take account of the evidence, but they sell short the experiences, demands and norms that pull bequest-makers in different directions. Instead of carefree nomads or benevolent fairy godmothers and godfathers, it may be more useful to think about elders as ageing jugglers. They are juggling their own needs and interests along with the needs and interests of the family. That is a handful in anyone’s terms. References Antonucci, T., & Jackson, J. S. (2007). Intergenerational relations: Theory, research, and policy. Journal of Social Issues, 63, 679–693. Australian Bureau of Statistics. (2010). Measures of Australia’s progress, 2010 (Cat No. 1370.0). Retrieved from <www.abs.gov.au/ausstats/abs@.nsf/ mf/1370.0>. Beck, U. (2009). World at risk. Cambridge: Polity Press. Beck, U., & Beck-Gernsheim, E. (2002). Individual- ization: Institutionalized individualism and its social and political consequences. London: Sage. Carroll, L. (2001). Life interests and intergenerational transfer of property avoiding the law of succession. Islamic Law and Society, 8, 245–286. Dynan, K., Skinner, J., & Zeldes, S. (2002). The importance of bequests and life-cycle saving in capital accumulation: A new answer. American Economic Association: Papers and Proceedings, 92(2), 274–278. Drake, D. G., & Lawrence, J. A. (2000). Equality and distributions of inheritance in families. Social Justice Research, 13, 271–290. DriveWA. (2011). Spend the kids inheritance. Perth: DriveWA. Retrieved from <www.drivewa.com/ item/109/spend-the-kids-inheritance.html>. Erikson, E. (1968). Identity: Youth and crisis. New York: W. W. Norton. Finch, J., & Mason, J. (2000). Passing on: Kinship and inheritance in England. London: Routledge. Gittins, R. (2011, 26 January). Aged care dilemma: Tap wealth in homes, or let taxpayers pay. The Age. Retrieved from <tinyurl.com/3mt9bgc>. Goodnow, J. J., & Lawrence, J. A. (2008a). How should people act in inheritance situations? Specifying differences in expectations. International Journal of Behavioral Development, 32, 98–107. Goodnow, J. J., & Lawrence, J. A. (2008b). Inheritance events: Perceptions of actions that involve the giving and receiving of things. Forum Qualitative Sozialforschung/Forum Qualitative Social Research, 9(1), Art. 25. Retrieved from <www.qualitative- research.net/index.php/fqs/article/view/332/725>. Goodnow, J. J., & Lawrence, J. A. (2010). Inheritance norms for distributions of money, land and things in families. Family Science: Global Perspectives on Research, Policy and Practice, 1(2), 73–82. Goodnow, J. J., & Lawrence, J. A. (in press). Inheriting money, houses, land, things: The way it’s supposed to be in families. Charlotte, NC: Information Age Publishing Inc. Havighurst, R. J. (1967). Developmental tasks and education. New York: David McKay. Izuhara, M. (2004). Negotiating family support? The “generational contract” between long-term care and inheritance. Journal of Social Policy, 33, 694–663. Kelly, S., & Harding, A. (2006). Don’t rely on the old folks’ money: Inheritance patterns in Australia. Elder Law Review, 5, 1–14. Light, A. & McGarry, K. (2004). Why parents play favorites: Explanations for unequal bequests. The American Economic Review, 94(5), 1669–1681. McGarry, K. (1999). Inter vivos transfers and intended bequests. Journal of Public Economics, 73, 321–351. Nauck, B. (2010). Intergenerational relationships and female inheritance expectations: Comparative results from eight societies in Asia, Europe, and North America. Journal of Cross-Cultural Psychology, 41, 690–705. Pestieau, P. (2003). The role of gift and estate transfers in the United States and in Europe. In A. H. Munnell & A. Sundén (Eds.). Death and dollars: The role of gifts and bequests in America (pp. 64–90). Washington, DC: Brookings Institute Press. Productivity Commission. (2011). Caring for older Australians: Draft inquiry report. Canberra: Commonwealth of Australia. Olsberg, D., & Winters, M. (2005). Ageing in place: Intergenerational and intrafamilial housing transfers and shifts in later life (AHURI Final Report No. 88). Melbourne: Australian Housing and Urban Research Institute. Rowlingson, K., & McKay, S. (2006). Attitudes to inheritance in Britain. Bristol: The Policy Press. Saunders, P., & Zhu, A. (2009). Comparing disadvantage and well-being in Australian families. Australian Journal of Labour Economics, 12(1), 21–39. SKI Club of Australia. (2008). Welcome to SKI Club Australia. Caboolture, QLD: Community Website Developments (Aust) Pty Ltd. Retrieved from <www. skiclubaustralia.com.au>. Sousa, L., Silva, A. R., Santos, L., & Paträo, M. (2010). The family inheritance process: Motivations and patterns of interaction. European Journal of Ageing, 7, 5–15. Tyler, T. (2000). Social justice: Outcome and procedure. International Journal of Psychology, 35, 117–125. Jeanette A. Lawrence is at Psychological Sciences, The University of Melbourne. Jacqueline J. Goodnow is at the Institute for Early Childhood, Macquarie University. Correspondence concerning this paper should be sent to: Jeanette A. Lawrence, Psychological Sciences, The University of Melbourne, Melbourne, Victoria, 3010. An earlier version of this paper was presented at the 11th Australian Institute of Family Studies Conference, 9 July 2010. Throughout, the evidence has pointed to the significance of achieving balance—a balance in approaches to spending and saving, a balance in judgements about the appropriate divisions of assets, a balance between competing norms. 
work_csctkijyd5hhdppzduazvwcdsm	----	ESA and Environmental Justice Howard University From the SelectedWorks of George Middendorf March, 2007 ESA and Environmental Justice George Middendorf, Howard University Charles Nilon Available at: https://works.bepress.com/george-middendorf/9/ http://www.howard.edu https://works.bepress.com/george-middendorf/ https://works.bepress.com/george-middendorf/9/ Contributions Commentary Eco-justicE 160 Bulletin of the Ecological Society of America ESA and Environmental Justice Ecologists’ interest in environmental justice (EJ) issues has spurred increasing consideration about the rela- tionship between EJ and ecology. Over the past several years, ecologists have sponsored symposia, roundtables, and discussions at ESA Annual Meetings. In 2000, speakers included G. Middendorf on ESA’s relationship to environmental justice, N. Targ on EPA’s role in environmental justice, J. Cubit on ecology in court to serve envi- ronmental justice, and C. Hopkins on black is green: a baseline study of environmental programs at historically black colleges and universities. In 2002, G. Middendorf and B. Grant discussed ecology, environmental history, environmental justice, and the role of ecologists in society; C Nilon spoke about the North City Sustainable Communities Project: linking research, restoration, and community involvement, T. Woiwode addressed The GreenWays Initiative: building the community of southeast Michigan; R. Tohannie, T. Alcoze, A. Moote, and S. Oran asked, who speaks for the mycorrhizae? environmental justice in Southwest forest restoration; J. Bonet outlined challenges and rewards of multilingual outreach; M. Floyd and C. Outley talked about children’s perceptions of neighborhood risks: an environmental justice perspective; N. Cole showed how climate change threatens the most vulnerable; and L. Jablonski and T. Poling discussed Environmental Justice and religious movements—restoring engagement in the world. In August 2006, George Middendorf, Charles Nilon, and Leanne Jablonski convened a symposium, Link- ing Ecology and Environmental Justice, in which nine presentations delineated specific links between ecology and EJ. Each speaker was asked to examine links between his or her research, teaching, and life as an ecologist with environmental justice issues, needs, and opportunities. As you will see in the presentations included in this issue of the ESA Bulletin, each has done so in a different manner. While each is, obviously, consistent with the speaker’s own history and interpretation of how these two disciplines might link, the results, although individu- ally unique, reveal that each speaker thought it critical to establish links between ecology and environmental justice—and that the development of strong links was critical to the future of both areas. In this symposium, Steward Pickett, Mary Cadenasso, and Chris Boone discussed “The ecology of environ- mental justice: relationships to ecological theory; John Vandermeer and Ivette Perfecto related “Tropical conser- The following papers were presented at the ESA 2006 Annual Meeting in Memphis, Tennessee, at the Symposium: Linking Ecology and Environmental Justice. Contributions vation and grass roots social movements;” Doug Boucher spoke about “The exploitation of natural resources and the people who extract them”; Hank Howe, in his talk, “Is curiosity good for anybody?,” considered how society and societal values affect ecological research; Ann Bartuska and Lynne Westphal talked about “Restoring justice/ restoring ecosystems: the intersection of ecology and environmental justice.” Marie Miranda, Joe Aldy, and Bill Schlesinger’s discussion of “Resistance and resilience as frameworks for understanding the justice implications of global climate change” is not included in this issue of the ESA Bulletin, as they decided to submit it elsewhere. Kristin Shrader-Frechette addressed the often confusing “and/or” issue of “Saving nonhuman species, killing humans”; and Leanne Jablonski and Para Poling discussed the specific role of ESA in EJ in their talk, “Environ- mental justice and ecology: developing the ESA agenda.” We believe that each of the talks presented in this issue of the ESA Bulletin is interesting, useful, and ulti- mately, transformative. Defining environmental justice and the role of ecology In the early 1980s, EJ activist efforts focused on the disproportionate siting of waste dumps in minority com- munities. Increased recognition of environmental disparities led to the development of EJ from the civil rights movement, with historical antecedents in the social work and feminist movements of the early 20th century. EJ passed through several earlier incarnations: environmental racism and environmental equity. EJ differs from these in that EJ is defined by its recognition that 1) disparate and disproportionate environmental impacts occur among different communities across racial and socio-economic lines, 2) affected communities should be apprised of environmental issues affecting them, and 3) these communities should be incorporated in any decision-making process. Of the three components, the first and third, recognition and inclusion, are probably best addressed through political and social venues, and it was to that end that President Clinton mandated in Executive Order 12898 To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations…. The effectiveness and success of this order remains problematic—and a topic for discussion in another venue. The second component is the one where application of ecology appears most fruitful and critical as this com- ponent concerns the use and role of science—and it is this aspect that was the focus of this symposium. Histori- cally, early EJ efforts centered on health-related issues and their causes, e.g., waste sites, pollutants, and the like. Thus, the relationship of science and EJ has largely centered on assessing differential environmental impacts on communities and developing associated models of risk, costs, and benefits. Science for EJ has been concentrated in sociological, health, and economic studies. What remains to be integrated into this are the natural sciences, particularly ecology. While this seems a reasonably simple and straightforward task, there are several barriers that make it difficult. April 2007 161 Contributions First, historical connections between EJ and ecology are lacking. The largely white ecological community is quite different from the mostly minority EJ community (which, in the United States, includes African American, His- panic American and Native American proponents and practitioners, but also economically disadvantaged white populations like Appalachia). Because ecologists are academically located in the natural sciences and EJ prac- titioners mostly come from the social and health sciences, it has been difficult to cross disciplinary boundaries. The focus differs as well; ecologists examine broad, general processes, while EJ practitioners focus on specific situations. Because of these community, disciplinary, and historical differences, individuals active in ecology and EJ have often (perhaps almost always) not interacted with one another. It is our belief that not only need this not be so, but that each will benefit greatly from the other. Natural science and ecology are critical for assessment of environmental impacts on communities and for developing models to examine the risks, costs, and benefits associated with environmental public policy. On the other hand, EJ is critical in providing focus and support for ecologists and ecological studies. That they are not exclusive is best exemplified by the work of two professors of urban planning. Corburn (2002, 2005) articulates an environmental approach that combines community-based research with local environmental knowledge to deal with asthma and subsistence-fishing hazards. Such an ap- proach could either be combined with ecological studies of nutrient cycles, or used as a basis for future ecologi- cal studies. Spirn’s (2000, 2005) long-term studies of the Mill Creek neighborhood in Philadelphia stand out as an exemplar of the role ecology should play in environmental planning. But just how linked (or unlinked) are Ecology and EJ? A survey of the Web of Science from January to June 2006 using “environmental justice” as keywords revealed 1078 results appearing in 41 publications, only one of which might be considered peripheral by most ecologists, Ecological Economics. A keyword search in Amazon and Barnes and Noble web sites using “environmental justice” for books published between January and July 2006 revealed 22 books, of which only three could be thought ecologically orientated, Burke’s Focus on Ecol- ogy (an edited volume), Gore’s An Inconvenient Truth (to accompany the movie of the same name), and Gleik’s The World’s Water 2006–2007 (a biennial report on freshwater resources). EJ is a research focus of a number of fields, but rarely for traditional ecologists. EJ is seen in anthropology, sociology, chemical, civil, and environ- mental engineering, history, law, library and information science, medicine, nursing, public health, etc, but not ecology. We conclude that there really isn’t much linkage between the two. EJ has been viewed by ecologists, and others (see Foreman 1998, for instance), as either advocacy or as an inappropriate research topic—probably because of its origin as a grassroots environmental movement among communities of color. Several misconceptions and preconceptions have acted toward this end. Reframing ecology—and EJ One misconception has been how we, as scientists, narrowly define and view research. Traditionally, we have framed research as basic, where science is conducted for its own sake or as applied when conducted either for or as the result of policy. Only occasionally do we recognize a hybrid approach in which basic and applied research are combined by extending a basic research framework into the human domain. This last approach is increasingly important in addressing critical scientific issues (those defined by individuals and communities outside the acad- emy), gaining public support for research, and providing information to the public for use in the policy process. Incorporation of EJ into ecology represents an method that would not only increase integration of ecology into the resolution of critical environmental issues, but also create new funding opportunities for ecologists, expand inter- est in the field of ecology among members of underrepresented groups, and involve residents of local communi- 162 Bulletin of the Ecological Society of America https://www.researchgate.net/publication/11435255_Combining_community-based_research_and_local_knowledge_to_confront_asthma_and_subsistence-fishing_hazards_in_GreenpointWilliamsburg_Brooklyn_New_York?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== Contributions ties in environmental research and decision making. Each of these fulfills the goals and mission of the ESA. One preconception is that because EJ has relied on sociology and economics, it does not need ecology. This is not unsurprising given the roles of science generally outlined in the EJ literature, which suggests that science is important in: 1) Evaluation of risk, cost, and benefits, usually associated with chemical and toxic exposures within and across communities. The particular exposures or specific issues have not often included ecology as a factor af- fecting exposure level. This is either due to the lack of ecologists doing EJ, or to the fact that ecologists are generally unaware of or insensitive to EJ issues, perhaps because they do not live in affected communities or are uncomfortable in dealing with the communities involved. 2) Evaluation of combined and synergistic exposure impacts within a context of individual communities. Ecologists are not trained for this. 3) Assignment of specific risk levels, costs, and benefits to impacted, potentially impacted, and other com- munities. Ecologists are often unaware of the need for this and certainly are not trained in the sociological, eco- nomic, and health dimensions of such problems. 4) Providing information to affected communities and decision-makers in a reasoned and unbiased manner. If ecologists are not involved in Nos. 1–3, they are most unlikely to be involved with No. 4. Clearly, if ecology is to have a relationship with EJ, ecologists must begin by delineating the very role of ecology in EJ. We believe that an understanding of ecology and ecological principles is critical in understanding and deal- ing with EJ issues. For instance, the top 10 key ecological concepts identified by BES members (Cherrett 1989) were (in rank order): the ecosystem, succession, energy flow, conservation, competition, niche, materials cycling, the community, life history patterns, and ecosystem fragility. Similarly, the ESA web page notes that members conduct research, teach, and use ecological science to address environmental issues that include: biotechnology, ecological restoration, ecosystem management, habitat alteration and destruction, natural resource management, ozone depletion and climate change, species extinction and loss of biological diversity, and sustainable ecologi- cal systems. A quick look at some of these areas will illustrate possible links between ecology and EJ. Biotechnology As food production becomes increasingly split among industrial, organic, and local approaches, the ability of different communities to absorb environmental impacts and afford costs is becoming increasingly differentiated. Ecological restoration Because of historical decisions, much ecological work is needed for environmental restoration in cities and in poor and minority communities. Ecosystem management Knowledge of sources, reservoirs, sinks, flow, and drivers would be useful in understanding and predicting April 2007 163 Contributions environmental impacts, particularly for EJ pollution issues. Habitat alteration and destruction Perhaps the most ecologically devastating natural disaster in recent times has resulted in numerous publica- tions, most of which, like “In the Wake of the Storm: Environment, Disaster, and Race After Katrina” include professors affiliated with the disciplines of economics, Latin American and Latino Studies, sociology, and envi- ronmental studies/community health, but not ecology. An understanding of the role of ecology in land subsid- ence, wave impact, and loss of shoreline, to cite but a few examples, is so critical that its absence all but assures incomplete and incorrect solutions. Ozone depletion and climate change As Nancy Cole pointed out (2002), people of color and poverty tend to live downhill and downstream—and will be among those most affected by rising water levels—as was so clearly seen last August in New Orleans. They, and the very young and very old, are also the least able to afford and tolerate extreme temperatures. Species extinction and loss of biological diversity It should go without saying that biodiversity is affected by poverty and development. Thus, conservation plans must provide alternatives to harvesting of animals for bushmeat and the pet trade industry. Further, the im- pact of people is expected to increase in latent risk hot spots (Cardillo 2006). Natural resource management The recent debates (see for instance, Shellenberger and Nordhaus’ (2004) “The death of environmentalism,” Foreman’s (2006) “Take back the conservation movement,” and McCauley’s (2006) “Selling out on nature” as examples) focus on differences between conservationism, preservationism, and environmentalism—all within the context of their relation to humans, the built environment, resource needs and methods of extraction. While we cannot solve the differences, we can make a case that an understanding of fundamental ecological principles are critical for bridging the chasms and perhaps resolving some of these differences. (See for instance the UNEP Green Cities Declaration (2005) which resolves “…to build an ecologically sustainable, economically dynamic, and socially equitable future… .”) Sustainable ecological systems With Adams et al. (2004) recognizing that “the creation of protected areas can have substantial negative im- pacts on local people,” one cannot but envision difficulties in establishing successful and sustainable protected areas absent consideration of the surrounding human communities. One of us was asked recently whether EJ isn’t just another form of applied ecology. Indeed, it probably is, or certainly a case could be made for this—and that isn’t necessarily bad. The recent ESA Visions Report (2004) noted that “ecological knowledge must underpin the decisions that affect ecological sustainability … at all lev- els of society worldwide.” Turner (1996) pointed out that “If an ecosystem can’t be known or controlled with scientific data, then why don’t we can all the talk of ecosystem health and integrity and admit, honestly, that it’s just public policy, not science.” We don’t believe that it’s all about public policy, but do contend that without 164 Bulletin of the Ecological Society of America https://www.researchgate.net/publication/51370569_Biodiversity_Conservation_and_the_Eradication_of_Poverty?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== Contributions consideration of the public in developing policy, we are not likely to achieve any reasonable long-term success. Environmental justice is one framework that not only looks promising, but is the right thing to do. Keep in mind that while scientists identify, develop, and provide solutions to problems, implementation of these involves the public and politics. Acknowledgments This article represents a summary of introductory remarks for the “Linking Ecology and Environmental Jus- tice” symposium at the 2006 ESA Annual Meeting in Memphis, Tennessee. Organizers: George Middendorf (Howard University), Charlie Nilon (University of Missouri-Columbia), and Leanne Jablonski (Marianist Envi- ronmental Education Center). Literature cited Adams, W. M., R. Aveling, D. Brockington, B. Dickson, J. Elliott, J. Hutton, D. Roe, B. Vira, and W. Wolmer. 2004. Biodiversity conservation and the eradication of poverty. Science 306:1146–1149. Cherrett, J. M. 1989. Key concepts:The results of a survey of our members’ opinions. Pages 1–16 in J. M. Cher- rett, editor. Ecological concepts: the contribution of ecology to an understanding of the natural world. Black- well, Oxford, UK. Corburn, J. 2002. Combining community-based research and local knowledge to confront asthma and subsis- tence-fishing hazards in Greenpoint/Williamsburg, Brooklyn, New York. Environmental Health Perspectives 110 (supplement 2):241–248. Corburn, J. 2005. Street science: community knowledge and environmental health justice. MIT Press, Cam- bridge, Massachusetts, USA. Foreman, C. H. 1998. The promise and peril of environmental justice. Brookings Institution Press, Washington, D,C., USA. Foreman, D. 2006. Take back the conservation movement. International Journal of Wilderness 12:4–31. McCauley, D. J. 2006. Selling out on nature. Nature 443:27–28. Spirn, A. W. 2000. The language of landscape. Yale University Press, New Haven, Connecticut, USA. Spirn, A. W. 2005. Restoring Mill Creek: landscape literacy, environmental justice and city planning and design. Landscape Research 30:395–413. Turner, J. 1996. The abstract wild. University of Arizona Press, Tucson, Arizona, USA. George Middendorf Department of Biology Howard University Washington, DC 20059 (202) 806-7289 E-mail:gmiddendorf@howard.edu Charles Nilon Department of Fisheries and Wildlife Sciences University of Missouri-Columbia Columbia, MO 65211-7240 (573) 882-3738 E-mail: nilonc@missouri.edu April 2007 165 mailto:gmiddendorf@howard.edu mailto:nilonc@missouri.edu https://www.researchgate.net/publication/11435255_Combining_community-based_research_and_local_knowledge_to_confront_asthma_and_subsistence-fishing_hazards_in_GreenpointWilliamsburg_Brooklyn_New_York?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/11435255_Combining_community-based_research_and_local_knowledge_to_confront_asthma_and_subsistence-fishing_hazards_in_GreenpointWilliamsburg_Brooklyn_New_York?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/11435255_Combining_community-based_research_and_local_knowledge_to_confront_asthma_and_subsistence-fishing_hazards_in_GreenpointWilliamsburg_Brooklyn_New_York?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/274515474_The_Promise_and_Peril_of_Environmental_Justice?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/274515474_The_Promise_and_Peril_of_Environmental_Justice?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/255617472_Take_Back_the_Conservation_Movement?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/6831998_Selling_out_on_nature?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/256058649_The_Language_of_Landscape?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/253282486_Restoring_Mill_Creek_Landscape_Literacy_Environmental_Justice_and_City_Planning_and_Design?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/253282486_Restoring_Mill_Creek_Landscape_Literacy_Environmental_Justice_and_City_Planning_and_Design?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/51370569_Biodiversity_Conservation_and_the_Eradication_of_Poverty?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== https://www.researchgate.net/publication/51370569_Biodiversity_Conservation_and_the_Eradication_of_Poverty?el=1_x_8&enrichId=rgreq-a8f3aaf1f24590f82e5fb33605a09e02-XXX&enrichSource=Y292ZXJQYWdlOzI1MDA3ODIzMTtBUzozMjcxNDc5NjYyMjIzMzZAMTQ1NTAwOTU2MTMzOQ== Howard University From the SelectedWorks of George Middendorf March, 2007 ESA and Environmental Justice 
work_ctd5okul7jbdbngknlu5vi5vxm	----	Editorial: Stumbling Towards Climate Justice UPFRONT Editorial: Stumbling Towards Climate Justice Arthur Muliro Wapakala1 Published online: 31 July 2017 � Society for International Development 2017 Stories about climate change and its unfolding effects as well as the political drama surrounding the global process to arrest it, and hopefully give humanity a chance fill the pages of our newspapers, the screens of blog posts and so on. It is fair to say that there is a growing awareness that the climate is going to be central to the future of humanity. But even as a committed bandwagon of climate deniers continues to challenge the idea that humans are responsible for global warming, they remain a minority - albeit one that is well funded and politically connected and whose agenda is ostensibly that to upend the efforts being made to arrest climate change. But there are many sides to the stories of climate change: whereas a lot of ink is spent in describing the vicissitudes of the Paris Climate Agreement and the maneuvering around it, the stories that attract less attention are those of the human lives that have been caught up in the vortex of a changing climate. Granted, the world’s media houses tend to focus on the ‘big story’ and more often than not, the lives of peasants in the Sahel, fisherfolk in the Bay of Bengal or First Nation peoples in the North America affected by a rapidly changing and often unpre- dictable climate do not make the headlines, nor do they necessarily attract the attention of the decision makers in the various global fora that are discussing the climate and what to do about it. This does not make their plight any less important: on the contrary - it is perhaps from their lives and stories that we need to begin reflecting on why urgent actions are needed to try and reverse the current trajectory of global warming. Like the canary in the coal mine, their stories and experiences are perhaps a sentinel of what awaits us if we tarry in our quest. Their pleas for assistance, and most important, justice fall largely on deaf ears, per- haps because either we are convinced that their lives and livelihoods are marginal and expendable, or because we believe that by retrofitting our industries and our econo- mies, we can continue along the same trajectory that has preoccupied our planners for pretty much the last couple of centuries. In other words, we think we can continue to maintain our current and aspired lifestyles without too much of a course correction. If we are to survive this current challenge to our species, it can only be through a set of radical adjustments that force us back towards being in greater synchronicity with nature. But this is a difficult proposition to articulate and to swallow. Already, the much-heralded Paris Climate Agreement, whilst having obtained the signatures of over 190 countries does not challenge, or address the questions around why it became necessary to have this agreement in the first place and proceed along a path of understanding how to walk backwards from this point. Many will argue that pursuing such a path would make it impossible to have the agreement at all - and they are probably right. There are too many countries with too great a stake in the present architecture of economy and power to contemplate any- thing different. But then, is this not analogous to treating the symptoms of the problem and pretending that a cause does not exist? Courage needs to be found to address the root causes of the climate crisis and to discuss what we - as a species - want to do about it. To address the climate crisis, we need to talk about the prevailing models of production - but also how they are linked to inequality, discrimination and injustice around the world. In her & Arthur Muliro Wapakala amuliro@sidint.org 1 Rome, Italy Development (2016) 59:189–194 DOI 10.1057/s41301-017-0124-7 http://crossmark.crossref.org/dialog/?doi=10.1057/s41301-017-0124-7&amp;domain=pdf http://crossmark.crossref.org/dialog/?doi=10.1057/s41301-017-0124-7&amp;domain=pdf article, Audrea Lim argues that the ‘limitless economic growth and endless consumption that lie at the heart of capitalism’ are 1 the key drivers of today’s climate crisis. And she is not alone - there is a growing number of critics who excoriate the Paris approach and its silence around the need to tackle the key drivers of the climate crisis. Steffen Böhm of the University of Essex has suggested that the limitations of the current negotiation process ‘result from the current ‘carbon fetishism’, in which even emissions are commodified in an event to maintain the economic status quo 2 ’. In this view, the elephant in the room remains ‘the fundamental failure of neoliberal capitalism, as the world’s dominant economic system, to confront its hunger for exponential growth of production and consumption that has been made possible by the unique energy density of fossil fuels, such as coal, oil and gas’. In his article, he refers at length to the Belgian geographer Erik Swyngedouw remarking thus: ‘For him, capitalism’s attempt to deal with the cli- mate crisis is a perfect example of ‘post-politics’, generating a lot of talk about what needs to change to make our existence on earth sustainable – such as at the current Paris climate summit – without there much changing at all. What’s important to bear in mind though is that this talk about change is not all there is. Swyngedouw also argues that capital attempts to materially reconfigure itself through the crisis of climate change, precisely by turning through the crisis of climate change, precisely by turning carbon (nature) into a commodity. And of course, this must be seen in line with the commodification pro- cesses that have always been part of capitalism’s history’. 3 Writing about the impact of ‘capitalist economics’ on Indigenous peoples and communities, Kyle Powys Whyte has argued that they face climate risks largely because of how colonialism, in conjunction with capitalist economics worked to shape the geographic spaces they inhabit and subsequently their socio-economic conditions. ‘The consequences of capitalist economics, such as deforestation, water pollution, the clearing of land for large scale agriculture and urbanization, generate immediate disruptions on ecosystems, ‘rapidly’ ren- dering them very different from what they were like before, undermining Indigenous knowledge systems and Indigenous peoples’ capacity to cultivate land- scapes and adjust to environmental change… Yet what is more insidious about climate injustice against Indigenous peoples is that the settler institutions such as those of containment, that inflicted environmental change in the past, are the same institutions that fostered carbon-intensive economic activities on Indigenous territories. That is, containment strategies, such as removal of Indigenous peoples to reservations or the forced adoption of corporate government structures, all facilitated extractive industries, defor- estation and large-scale agriculture’. (Whyte 2017) American journalist Christian Parenti begins his book with the graphic description of the aftermath of a cattle raid in north-western Kenya and provides us with the context of this raid that left one Ekaru Loruman dead. We are told that persistent severe drought had led to encroachment of the Turkana, a pastoralist community, onto the lands of their Pokot neighbours and reciprocal raids to replenish stocks depleted by the droughts were increasingly common. He asks: ‘Why did Ekaru Loruman die? […] We could say tradition killed Ekaru, the age-old tradition of ‘stock- theft’, cattle raiding among the Nilotic tribes of East Africa. Or we could say he was murdered by a specific man, a Pokot from the Karasuk. Or that Ekaru was killed by the drought. When the drought gets bad, the raiding picks up. Or perhaps Ekaru was killed by forces yet larger, forces transcending the specifics of this regional drought, this raid, this geography and the Nilotic cattle cultures. To my mind… Ekaru’s death was caused by the most colossal set of events in human history: the catas- trophic convergence of poverty, violence and climate change’. (Parenti 2011: 4–5) In 2015, a Dutch district court sitting in The Hague ruled that the Dutch government had a legal duty of care towards current and future generations to lower its CO2 emissions. This landmark ruling - known as the Urgenda Case - was ‘the first case in which regular citizens have managed to hold their government accountable for taking insufficient action to keep them safe from dangerous climate change. The ruling stipulated that the ‘Dutch government is required to reduce its emissions by at least 25% by the end of 2020 (compared to 1990 levels). This means that the Dutch government is now, effective immediately, forced to take more effective action on climate change. It is also the first case in the world in which human rights are used as a 1 Audrea Lim, True Climate Justice Puts Communities of Color First, https://www.thenation.com/article/true-climate-justice-puts-commu nities-of-color-first/. 2 Steffen Böhm: The Paris Climate Talks and other Events of Carbon Fetishism, https://www.versobooks.com/blogs/2372-steffen-bohm- the-paris-climate-talks-and-other-events-of-carbon-fetishism. 3 Steffen Böhm: The Paris Climate Talks and other Events of Carbon Fetishism, https://www.versobooks.com/blogs/2372-steffen-bohm- the-paris-climate-talks-and-other-events-of-carbon-fetishism. 190 A. M. Wapakala https://www.thenation.com/article/true-climate-justice-puts-communities-of-color-first/ https://www.thenation.com/article/true-climate-justice-puts-communities-of-color-first/ https://www.versobooks.com/blogs/2372-steffen-bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism https://www.versobooks.com/blogs/2372-steffen-bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism https://www.versobooks.com/blogs/2372-steffen-bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism https://www.versobooks.com/blogs/2372-steffen-bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism legal basis to protect citizens against climate change 4 ’. This case and the subsequent ruling (although under appeal by the Dutch government) has inspired similar cases in Belgium, Norway and France. How then does the idea of justice play out henceforth? Justice for the Indigenous people who have seen their ancestral lands devastated? Or for Ekaru Loruman’s fam- ily? Or those Dutch citizens who fear for this and future generations? Or for the many other cases which we have not cited? Justice, in many of our countries, is often sought and not always obtained. So why add climate justice to the pot? Ultimately, it is because climate justice - and justice more generally - is a function of who we are and what we value. Most Western philosophers have generally regarded justice as fundamental for ordering interpersonal relations as well as establishing and maintaining a stable political society. In our case, we are perhaps more concerned with the latter part, the emphasis on having a stable political society – an outcome that is by no means guaranteed. As Peter Burnell wrote: ‘If the economic adjustment costs imposed by climate change or the financial costs of miti- gation and adaptation are distributed unevenly in society – to the detriment of politically weak groups - the chances of reaching the democratic norm of political equality become more remote. Not just climate change but also some of the efforts to address it can lead to social injustice harming at minimum democracy’s substance and reputation’. (Burnell 2012: 821) Thus, albeit a sensible proposition, the notion of climate justice remains a thorny one to implement nonetheless. As Rebecca Hall put it: Climate justice includes a focus on the root causes of climate change and making the systemic changes that are therefore required, a commitment to address the disproportionate burden of the climate crisis on the poor and marginalized, a demand for participatory democracy in changing these systems which require dismantling the fossil fuel corporate power structure, and a commitment to reparations and thus a fair distribution of the world’s wealth. 5 In his landmark Encyclical ‘Laudato Sı̀’ published in 2015, Pope Francis made an impassioned plea for climate justice suggesting that there is a need to go beyond the current palliative measures being implemented. In particular, he placed the asymmetry of power at the heart of the debate: ‘Climate change is a global problem with grave implications: environmental, social, economic, polit- ical and for the distribution of goods. It represents one of the principal challenges facing humanity in our day. Its worst impact will probably be felt by developing countries in coming decades. Many of the poor live in areas particularly affected by phenomena related to warming, and their means of subsistence are largely dependent on natural reserves and eco- systemic services such as agriculture, fishing and forestry. They have no other financial activities or resources which can enable them to adapt to climate change or to face natural disasters, and their access to social services and protection is very limited. For example, changes in climate, to which animals and plants cannot adapt, lead them to migrate; this in turn affects the livelihood of the poor, who are then forced to leave their homes, with great uncertainty for their future and that of their children. There has been a tragic rise in the number of migrants seeking to flee from the growing poverty caused by environmental degradation. They are not recognized by international conventions as refugees; they bear the loss of the lives they have left behind, without enjoying any legal protection whatsoever. Sadly, there is wide- spread indifference to such suffering, which is even now taking place throughout our world. Our lack of response to these tragedies involving our brothers and sisters points to the loss of that sense of responsibility for our fellow men and women upon which all civil society is founded. Many of those who possess more resources and economic or political power seem mostly to be con- cerned with masking the problems or concealing their symptoms, simply making efforts to reduce some of the negative impacts of climate change. However, many of these symptoms indicate that such effects will continue to worsen if we continue with current models of production and consumption. There is an urgent need to develop policies so that, in the next few years, the emission of carbon dioxide and other highly polluting gases can be drastically reduced, for example, substituting for fossil fuels and developing sources of renewable energy’. 6 This question of power asymmetries and how they are reproduced has to be a central element of climate justice campaigns going forward. We cannot talk of rethinking the current structures of production without rethinking how power within societies is managed and distributed. If the quest for climate justice is to have any success, it will need 4 The Urgenda Climate Case Explained http://www.urgenda.nl/en/ climate-case/. 5 Rebecca Hall, Defining Climate Justice, http://www.peacefulupris ing.org/defining-climate-justice-20130521. 6 Encyclical Letter Laudato Sı̀ of the Holy Father Francis on Care for Our Common Home, pp. 20–21. Editorial 191 http://www.urgenda.nl/en/climate-case/ http://www.urgenda.nl/en/climate-case/ http://www.peacefuluprising.org/defining-climate-justice-20130521 http://www.peacefuluprising.org/defining-climate-justice-20130521 to embrace a broader and more radical analysis of why we are in the funk we are today, and to rethink and reimagine a different outcome. As John Riddell (referring to the North American situation, but one whose message is nonetheless universal) put it quite succinctly: ‘The climate justice movement has insisted on a focus on communities most directly impacted by climate change, the marginalized and indigenous peoples. But for such an alliance to be effective it also requires building a working class environmen- talism that challenges capitalist production and the endless accumulation that necessarily entails eco- logical degradation. Unfortunately, ecological acti- vism in North America – even when confronting climate change – relies on market measures and utopic visions of green capitalism’. 7 As Albert Einstein remarked, ‘We cannot solve our prob- lems with the same level of thinking that created them’. So, what is the pathway that we must follow to at least try and embed climate justice at the centre of the conversations around climate change? It is necessary that we take a sys- temic and encompassing view that brings questions of inequality, continued oppression, gender discrimination and human rights into these conversations. This provides us with an opportunity to ‘reshape our economic system, and to create real alternatives to the profit-driven, fossil fuel–de- pendent system of white, corporate capitalism 8 ’. And in so doing, we will also need to challenge the power centres that continue to drive global warming. This means recognizing that the vast majority of emissions today derive from industry and agribusiness. It will call for a recasting of the narrative that promotes growth and consumption at all costs. The fact remains that there are no easy propositions or solutions. We have reached the point we are at through a prolonged and systematic period in which the primary goal of modern economic systems was growth and profit. This twin obsession neglected the ecological basis on which it thrived and it naturalized inequalities, patriarchy, violence and alienation as its core byproducts. As individuals, we might be compelled to take those actions that we believe will contribute to greater sustainability and hence be part of ‘making the difference’ to save the planet. Yes, these small actions are in their own right necessary and important, but this is not where we should be focusing our attention. Simple living will never be enough and will never be a substitute for the larger system change and reset that we should be craving for. So we are caught on the horns of a dilemma - one for which for most, the easier alternative is to adopt the ostrich’s strategy of burying our heads in the sand and hoping that the problem will go away. Derrick Jensen thinks we have been caught up in a double bind which he describes thus: ‘A double bind is where you’re given multiple options, but no matter what option you choose, you lose, and withdrawal is not an option. At this point, it should be pretty easy to recognize that every action involving the industrial economy is destructive (and we shouldn’t pretend that solar photovoltaics, for example, exempt us from this: they still require mining and transportation infrastructures at every point in the production processes; the same can be said for every other so-called green technology). So if we choose option one — if we avidly participate in the industrial economy — we may in the short term think we win because we may accumulate wealth, the marker of ‘‘success’’ in this culture. But we lose, because in doing so we give up our empathy, our animal humanity. And we really lose because indus- trial civilization is killing the planet, which means everyone loses. If we choose the ‘‘alternative’’ option of living more simply, thus causing less harm, but still not stopping the industrial economy from killing the planet, we may in the short term think we win because we get to feel pure, and we didn’t even have to give up all of our empathy (just enough to justify not stopping the horrors), but once again we really lose because industrial civilization is still killing the planet, which means everyone still loses. The third option, acting decisively to stop the industrial econ- omy, is very scary for a number of reasons, including but not restricted to the fact that we’d lose some of the luxuries (like electricity) to which we’ve grown accustomed, and the fact that those in power might try to kill us if we seriously impede their ability to exploit the world — none of which alters the fact that it’s a better option than a dead planet. Any option is a better option than a dead planet’. 9 As stated earlier, we are not left with many other options on the table other than to come up with new forms of politics that challenge the structural basis of our current economic models as well as current efforts to seek commercial opportunities in the climate crisis - which will simply be another way of continuing the ruin and disenfranchisement that have accompanied the present system to date. To return to Böhm’s argument, ‘climate 7 John Riddell, Climate vandalism and North American capitalism, https://johnriddell.wordpress.com/2017/06/07/climate-vandalism- and-north-american-capitalism/. 8 Audrea Lim, True Climate Justice Puts Communities of Color First, https://www.thenation.com/article/true-climate-justice-puts-commu nities-of-color-first/. 9 Derrick Jensen, Forget Shorter Showers, https://orionmagazine.org/ article/forget-shorter-showers/. 192 A. M. Wapakala https://johnriddell.wordpress.com/2017/06/07/climate-vandalism-and-north-american-capitalism/ https://johnriddell.wordpress.com/2017/06/07/climate-vandalism-and-north-american-capitalism/ https://www.thenation.com/article/true-climate-justice-puts-communities-of-color-first/ https://www.thenation.com/article/true-climate-justice-puts-communities-of-color-first/ https://orionmagazine.org/article/forget-shorter-showers/ https://orionmagazine.org/article/forget-shorter-showers/ justice is not something that should come after us accepting climate capitalism. A proper just climate can only be brought about if we don’t shy away from questioning the fundamental logic of carbon fetishism and the logic of the market that attempts to appropriate, commodify and financialize nat- ure’. 10 Getting to this point will require heroic efforts by women and men around the world to get out of their familiar comfort zones and, in words of Jensen, ‘remember that the role of an activist is not to navigate systems of oppressive power with as much integrity as possible, but rather to confront and take down those systems’. This journal brings together a number of viewpoints and perspectives on how questions of climate justice are seeing and addressed from different vantage points. The twenty- five contributors take us through a kaleidoscope of per- spectives that taken together, give a picture of the com- plexity of the challenge on the one hand; and on the other, a sense of the actions and proposals that are being worked on around the world. Virtually all the authors agree that the most vulnerable victims of climate change are found in the poorest countries of the world where there is also the least capacity to put together an adequate and sufficient response to the ravages of climate change. In her article, Miren Gutierrez gives us an overview of ‘the good, the bad and the ugly’. She analyzes the politics around the commitments to the Paris Agreement and where the different signatories stand with respect to their emission targets as well as the politics around the Green Climate Fund. Julian Brave NoiseCat argues for Indigenous peoples and their knowledge regimes to be acknowledged and given a greater role in the climate mitigation process. There is a need, he argues, for indigenous rights to be broadened and strengthened in order for them to stave off the challenges coming from fossil fuel development, extractive industries and the resultant climate change. Ruth Nyambura reminds us of the persistent disconnect between the formal processes at the state level and the realities on the ground, and how this is leading to the emergence of a network of transnational cli- mate, food and energy justice movement(s) that are working together to try and provide viable alternatives to those local communities hit by a perfect storm of multiple and inter- secting crises of climate change. We are told that there is a growing and hardening fissure between the elitist narratives of climate justice and climate action and the alternative visions of society that are being nurtured and worked upon at the grassroots. Julia Puaschunder, makes a proposal as to how to how to share the benefits and burdens of climate change in a fair and just manner within society, between countries and over time. She presents and discusses innovative compensation schemes such as climate bonds to spread the burden of climate change more equally between today’s and tomorrow’s society. Kelly McFarland looks at environmental factors driving migration and proposes a set of ‘guiding principles’ that could form the basis for a new, and different conversation on the imperatives of contem- porary migration and what policies might be pursued in this regard as well as some of the challenges that are likely to be faced in implementing the new policies. He decries the fact that the current political environment is ill-prepared to tackle complex, globally-based and humanitarian focused issues and challenges us to work towards building resilience within communities and to focus on the longer-term, adap- tive policies geared toward slow-onset migration and urbanization. Gabriel Ferrero urges us to get behind the 2030 Development Agenda and the related Sustainable Devel- opment Goals as this, together with the Paris Agreements offers a substantive framework to deliver on climate justice and to overcome inequalities, poverty, lack of hope and the erosion of human rights, underlying root causes of insecu- rity, conflicts, and forced migration. He reminds us that our common destiny imposes on us the need to cultivate shared values and principles; shared goals and targets and above all shared responsibility and action by all actors. Lorna Gold challenges International Non-Governmental Development Organizations (INGDOs) not to contribute to the conspiracy of silence which still surrounds climate change in Western societies by ignoring it in their campaigns and advocacy. She argues that they have a privileged role to help shifting the public narrative on climate change and climate justice at a national level where they operate through the stories and experiences they can help leverage to bring the reality of the global scale of climate injustice into national contexts where the impacts may not be readily understood. Bertrand Noiret reflects on the challenge of ensuring food security and adequate nutrition in a world with a rapidly changing cli- mate. He suggests that these twin goals be at the centre of climate change actions and calls for strengthened repre- sentation and participation of social movements and non- government organization, at relevant fora as well as closer coordination and cooperation amongst those institutions working on food security and nutrition. Tristan Quinn-Thi- bodeau and Brandon Wu reflect on the challenges that a Donald Trump presidency brings with it for NGOs and cli- mate activists in the United States. They suggest that larger NGOs need to break out of their silos and engage with and support grassroots, frontline, and social movement leader- ship, fighting on issues not traditionally associated with stopping climate change. The current political context, in their view, offers a real opportunity for development NGOs to take a principled stand and actively take sides with the people they purport to serve even if these postures should prove to be uncomfortable. Isis Alvarez and Simone Lovera 10 Steffen Böhm: The Paris Climate Talks and other Events of Carbon Fetishism, https://www.versobooks.com/blogs/2372-steffen- bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism. Editorial 193 https://www.versobooks.com/blogs/2372-steffen-bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism https://www.versobooks.com/blogs/2372-steffen-bohm-the-paris-climate-talks-and-other-events-of-carbon-fetishism argue for the need to mainstream gender in climate change actions as this could lead to new policy actions that enhance women’s participation in tackling biodiversity loss and cli- mate change. They tell us that the patriarchal system has so far marginalized women in implementing biodiversity and climate commitments and remind us that we need to discard stereotypes of women being ‘weak’ and ‘dependent’ and recognize that historically, women have been key agents in leading societal change. The above and the other sterling contributions in this issue challenge us collectively to reflect on the entity of the problem that climate change poses, and why ultimately, we will have to adopt a climate justice approach. As individual readers, we may not always agree with the suggestions that the authors have made or the solutions that are being implemented. Theirs are ideas to provoke conversations and to remind us that the challenges that climate change will unleash will stretch our collective imagination and test our institutions - locally and internationally in ways that perhaps they were never made to. If there is but one lesson to draw from this anthology, it is that nothing is static in a time of intense turmoil. We will look to different spheres of achievement for solutions - be they technical, social or spiritual. What we cannot do is run away from the fact that attaining climate justice; resolving the climate crisis will be in the final analysis a political challenge. In the earlier part of this editorial, I repeatedly made the point that we will need to find ways and means to go beyond the limits of the current capitalistic model of production and consumption. We will need to figure out how to challenge its foundations and to think of what can replace it - and some suggestions are made in the following articles. Wean ourselves off the dependency on fossil fuels. Tackle the waste of industrial agriculture. Rethink our models of resilience. And so on. In concluding, we will need to find a way of ensuring that the dialogue that is necessary does not become hostage to denialism, or what David Roberts has called ‘tribal epistemology’ in which: ‘Information is evaluated based not on conformity to common standards of evidence or correspondence to a common understanding of the world, but on whe- ther it supports the tribe’s values and goals and is vouchsafed by tribal leaders. ‘‘Good for our side’’ and ‘‘true’’ begin to blur into one’. 11 The current challenge calls for collaboration, not senseless competition. It requires that we work together to enlarge the common ground from which we can begin to search for lasting solutions as opposed to creating islands of righ- teousness. If we are to find viable solutions and outcomes to our predicament, it will require that we find ways and means of reinforcing trust at all levels of society. This means that we will have to accept that predominant narratives are challenged and that spaces for alternative narratives are cultivated. Many have called ours ‘the age of possibilities’ - humanity, with its technological progress and achieve- ments of the past centuries seemed to have reached the cusp of going beyond what were hitherto considered the limits to our progress as a species. And we have achieved a lot. But we are now discovering that nature is a powerful adversary, and not necessarily a forgiving one either. ‘Never before have the possibilities of a good world for the human species as a whole been greater. At the same time, the gap between human potential and the existing conditions of humankind in its totality has probably never been wider. Ours is also an age of extremes. What stands in between the potential and the actual are the economics of environmental destruction and social exclusion of whoever is not profitable, the economics, sociology and psychology of inequality, the power politics of division and war. No end to all of this is in sight. However, a species consciousness is emerging, in particular one of environmental challenges but also of human rights and human potential’. (Therborn 2016: 37) We are now called upon to take a step back and look at everything in perspective. A course correction may yet be possible - time is running out, but we still have a limited window to make that difference. References Burnell, Peter. 2012. Democracy, democratization and climate change: complex relationships. Democratization 19 (5): 813–842. Parenti, Christian. 2011. Tropic of Chaos: Climate Change and the New Geography of Violence. New York: Nations Books. Therborn, Göran. 2016. An Age of Progress? New Left Review No. 99 May–June. Whyte, Kyle Powys. 2017. Is it Colonial Déjà Vu? Indigenous Peoples and Climate Injustice. In Humanities for the environ- ment: Integrating knowledges, forging new constellations of practice, ed. J. Adamson, M. Davis, and H. Huang, 88–104. London: Earthscan Publications. 11 David Roberts, Donald Trump and the rise of tribal epistemology, https://www.vox.com/policy-and-politics/2017/3/22/14762030/ donald-trump-tribal-epistemology. 194 A. M. Wapakala https://www.vox.com/policy-and-politics/2017/3/22/14762030/donald-trump-tribal-epistemology https://www.vox.com/policy-and-politics/2017/3/22/14762030/donald-trump-tribal-epistemology Editorial: Stumbling Towards Climate Justice References 
work_ctv46udfszfozd42wsccaq4hdq	----	http://coa.sagepub.com Critique of Anthropology DOI: 10.1177/0308275X05058656 2005; 25; 389 Critique of Anthropology Daniel M. Goldstein Flexible Justice: Neoliberal Violence and ‘Self-Help’ Security in Bolivia http://coa.sagepub.com/cgi/content/abstract/25/4/389 The online version of this article can be found at: Published by: http://www.sagepublications.com can be found at:Critique of Anthropology Additional services and information for http://coa.sagepub.com/cgi/alerts Email Alerts: http://coa.sagepub.com/subscriptions Subscriptions: http://www.sagepub.com/journalsReprints.navReprints: http://www.sagepub.com/journalsPermissions.navPermissions: http://coa.sagepub.com/cgi/content/refs/25/4/389 SAGE Journals Online and HighWire Press platforms): (this article cites 20 articles hosted on the Citations © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com/cgi/alerts http://coa.sagepub.com/subscriptions http://www.sagepub.com/journalsReprints.nav http://www.sagepub.com/journalsPermissions.nav http://coa.sagepub.com/cgi/content/refs/25/4/389 http://coa.sagepub.com Flexible Justice Neoliberal Violence and ‘Self-Help’ Security in Bolivia Daniel M. Goldstein Rutgers University, USA Abstract ■ As Bolivia has restructured its economic and political sectors accord- ing to a neoliberal model, citizens have been required to become more ‘flexible’ in securing their livelihoods, creating ‘self-help’ economic activities and informal employment schemes to make ends meet. At the same time, as state mechanisms for administering justice and producing ‘security’ fail due to the inadequacies of the neoliberal regime, Bolivian citizens are adopting ‘flexible’ attitudes toward crime and punishment, frequently turning to ‘self-help’ justice mechanisms (including private security patrols and vigilante lynchings) to combat crime in their communities. This article explores the processes by which neoliberal logic and language condition the experiences and responses to crime and insecurity of residents in different neighborhoods of Cochabamba, Bolivia. It suggests that lynchings in Bolivia today be understood as a kind of neoliberal violence, produced both by the scarcities and deficiencies of the privatizing state, and by the logic of transnational capitalism itself, which has saturated civil society and public culture. Keywords ■ Andes ■ Bolivia ■ neoliberalism ■ transnationalism ■ vigilantism ■ violence In the second week of October 2003, a week that marked the anniversaries of both the Columbian ‘discovery’ of the New World and 21 years of Bolivian democracy, the Bolivian state massacred 62 people in violent confrontations in and around the nation’s capital, La Paz, and neighbor- ing El Alto (Opinión, 2003c). The massacres occurred in the context of the so-called ‘Gas War’, a massive social protest joined by peasant groups, labor unions, coca farmers, and the urban poor, against the Bolivian govern- ment’s plans to export natural gas through a Chilean port for sale to the United States. Fearing that once again, as has happened so many times in the neoliberal era, a vital component of the Bolivian ‘national patrimony’ was to be expropriated by foreign interests, this loose coalition of indigen- ous and labor groups took to the streets, demanding cancellation of the gas sale and the resignation of Bolivia’s president, Gonzalo Sanchez de Lozada.1 The bloodiest confrontation between protestors and the state occurred on 12 October, when heavily armed police and military units attempting to escort gasoline trucks past a blockade in El Alto fired live Article Vol 25(4) 389–411 [DOI:10.1177/0308275X05058656] Copyright 2005 © SAGE Publications (London, Thousand Oaks, CA and New Delhi) www.sagepublications.com © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com ammunition into a crowd of people challenging this action. In response to these killings, protestors’ calls for the president’s resignation escalated, while blockades, marches, and demonstrations gained momentum throughout the country. Despite international support, the president’s ruling coalition crumbled in the face of continued domestic unrest, and Sanchez de Lozada fled the country a few days later.2 As human rights scholars and activists have discovered (e.g. Godoy, 2002), democratic governance does not automatically produce a rule of law and a respect for human rights, a fact that has become painfully clear to Bolivians and students of the Bolivian sociopolitical landscape in recent years. Though officially a democracy since 1982 – when a democratically elected regime replaced the military ‘narco-dictatorship’ of General Luis García Mesa, ending decades of authoritarian rule in the country – Bolivia has struggled to implement democratic political and legal reform while contending with the requirements of neoliberal structural adjustment and the globalization of capital. The Bolivian state, a star pupil of the neoliberal school, has diligently complied with the demands of international lending agencies and foreign nations (especially the United States), restructuring its economy to provide a more favorable climate for multinational invest- ment, privatizing national industries and slashing state payrolls and programs, while watching unemployment rise and poverty worsen for the majority of the national population (Kohl, 2002).3 State efforts to impose these political and economic mandates have sometimes been accompanied by violence, both by and against the state and its representatives. Indeed, as the violence of the Gas War reveals, Bolivian society today, though formally democratic, is more violent than ever: according to the Bolivian Permanent Human Rights Assembly (Asamblea Permanente de Derechos Humanos), more Bolivians were killed by the state in 2003 than during any year of the military dictatorships (AIN, 2003). The Gas War violence continued in 2005, as protestors again took to the streets to demonstrate against the unresolved issues surrounding privatization and expropriation of natural gas, again willing to invoke the wrath of the state to protest neoliberal policies relating to the nation’s most valuable natural resource.4 These violent events and continued unrest have their roots in the Bolivian state’s efforts to comply with foreign pressures and structural adjustment programs encoded in transnational strategies of political and economic reorganization, and thus represent forms of ‘neoliberal violence’ (cf. Auyero, 2000). Neoliberal violence is at once structural and undeniably physical; it entails an inequitable distribution of resources within a rigidly hierarchical society, which ultimately must be implemented and main- tained by state violence, and which in turn engenders violent responses. This violence is quotidian – it marks the everyday lives of poor, marginal- ized (and, in Bolivia, indigenous) people, creating a profound sense of insecurity, an anxious and fearful ‘structure of feeling’ (Williams, 1977) that colors every aspect of daily existence – and in moments of rupture like 390 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com the Gas War, it can be shockingly bloody. It also transcends the geographi- cal and ideological space of the nation-state, being motivated by and pursuant to the demands of a transnational political-economic regime that reconfigures national policies and programs according to its own logic of privatization, ‘responsibilization’, and ‘flexibility’ (Harvey, 1991; Ong, 1999). In the economic restructuring that underlies it and the reduced capacity of the state to provide services that this restructuring creates, neoliberal violence produces violations not only of the political and civil rights of individuals, but of their social and economic rights as well. I put forth the idea of neoliberal violence because I want to use it as a frame for interpreting yet another kind of violence currently ongoing in Bolivia, one that I think must be viewed within this same, broader context of neoliberalism and the rights violations it engenders if it is to be properly understood. I am referring to the lynching of thieves by groups of residents in many urban neighborhoods throughout Bolivia, but particularly centered in the southern zone of Cochabamba, Bolivia’s third largest city. While exact numbers are difficult to come by, my own research (supple- mented by that of Acción Andina, 2003) has documented hundreds of such incidents in and around Cochabamba over the last five years (Goldstein, 2003). As I discuss below, lynching has proliferated in Cochabamba and elsewhere in Bolivia in conjunction with the nation’s overall economic decline, and as people’s vulnerability to violence, official corruption, and criminal predation has escalated. My attempt in this article to understand lynching violence should not be misconstrued as an effort to rationalize or justify it. Without a doubt, lynching represents an indefensible form of violence, a violation of the most basic rights of human beings. And yet, what I want to suggest here is that these lynchings be understood not in isolation from the ongoing violence produced by the Bolivian state, but in concert with it. The spate of lynchings occurring in Cochabamba and other locations across Bolivia is generated by and in reaction to transnational violence that is at once structural, physical, and all pervasive in Bolivia today. Far from the spon- taneous expressions of an innately primitive and anti-democratic nature (a common interpretation of lynching, as I will discuss in more detail below), lynchings are collective expressions of rage and despair in a context of total vulnerability, not only to crime but to the ravages of a political-economic order that disproportionately and prejudicially impacts poor and indigen- ous people. Facing mounting violence and crime, unemployment and a sense of powerlessness to confront a sociopolitical order that ignores their demands for economic, legal, and social justice, these people respond with violence, in a futile effort to control crime and as a response to the nation- state’s neglect of their own rights to justice and security in their communi- ties. At the same time, the form and the logic of vigilante justice in Bolivia today is profoundly shaped by and expressive of certain basic principles of neoliberalism itself. In particular, the ‘privatization’ of justice reflects key 391 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com organizational – indeed, cultural – themes of neoliberal political economy, and rather than working to reduce lynching violence, the national state and its transnational underwriters, as principal proponents of the logic of flexibilization and privatization, can actually be viewed as co-conspirators in its elaboration. I thus suggest that lynchings in Bolivia today be under- stood as a kind of neoliberal violence, produced both by the scarcities and deficiencies of the kind of ‘sclerotic state’ (Speed and Reyes, 2002) that neoliberalism precipitates, and by the logic of transnational capitalism itself, which has saturated civil society and public culture. In this analysis of the articulations between global capitalism and local violence, the nation-state emerges as a key player: rather than being rendered irrelevant by globalization (as some critics have suggested – see the discussion in Comaroff and Comaroff, 2001), the nation-state becomes a critical site through which global economic and cultural flows are managed and deployed, an instrumental actor that maintains the conditions of capitalist profitability and, through its policies, regulatory requirements, and interpolation of local subjectivities (what analysts are now commonly calling its techniques of governmentality, following Foucault, 1991; Merry, 2001), the state instantiates capitalism’s cultural logic in the daily administrations of national life (Robinson, 2004). And it is the state that is the principal point of articulation between global forces and local actors, who respond to the pressures and potentials of globaliz- ation, sometimes as willing collaborators, at other times in violent protest against the similarly violent transformations it engenders. In what follows, I examine some of the most critical cultural and political components of this transnational articulation, focusing on ideas about privatization, flexi- bility, and justice that not only have local impacts, but that are continually managed and reworked by local actors attempting to establish a sense of security for themselves in the highly unstable social field of late capitalism.5 In the next section of this article, I provide a summary description of lynching in Cochabamba, with reference to the larger discursive frame- works within which it is typically interpreted. I then go on to suggest that lynching be understood as part of a larger practice of violence that pervades neoliberal society, and in fact partakes of the fundamental logic of ‘flexi- bility’ that lies at its heart. The next section of the article discusses other forms of ‘privatization of justice’ in Bolivia, including police corruption and private police firms, suggesting further linkages between neoliberal economic logic and the provision of security in the contemporary Bolivian city. In the conclusion, I analyze these various forms of violence and security provision within the broader context of neoliberal capitalism, with sugges- tions for how this discussion can affect our understandings of global and local linkages in contemporary society. 392 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com Lynching violence in Bolivia The vigilante lynching of criminal suspects has become a common practice in the marginal barrios of Bolivian cities, with the majority of such incidents being reported in the southern zone of Cochabamba. As I have described elsewhere (Goldstein, 2003, 2004), one of the first of these lynchings occurred in one such barrio (Villa Sebastián Pagador) in 1995, when I was there doing fieldwork. In that event, three individuals were caught red- handed robbing a home in broad daylight, and were nearly lynched by a crowd of angry residents. When the police finally arrived, dressed in riot gear, to disrupt the lynching, people attacked the advancing police cordon until the police dispersed the crowd with tear gas.6 This near-lynching, as it turns out, was an early forerunner of what has since become a common practice of collective violence by the residents of marginal barrios all around Cochabamba. According to reports that I and my colleagues in Acción Andina have collected from police sources, social service agencies, and local newspapers, literally hundreds of lynchings or attempted lynch- ings have occurred in Cochabamba during the last five years. Indeed, events of this kind have occurred with such frequency in the popular barrios of Cochabamba and elsewhere that, according to a recent report, Bolivia ranks second in the world (behind Guatemala) in the number of lynchings that have taken place (Opinión, 2003a).7 Lynchings have occurred with such frequency in Cochabamba that they have become routinized, and unfold according to their own ritual schema. Typically in these incidents, a criminal suspect (usually a supposed thief, child molester, or some other kind of felon or petty criminal) is appre- hended by a group of local residents, who are quickly joined by other inhabitants of the zone. This group ties up the suspect, and subjects him (or sometimes her) to verbal and physical abuse, which can include beating, hair cutting, and stoning. Sometimes these tortures lead to death, as the suspect is doused with gasoline and set on fire by the angry mob. More often than not, however, the police arrive to rescue the lynching victims or otherwise disrupt the event. In most cases, both the victims and the perpetrators of lynching violence are of indigenous origin (Quechua and/or Aymara), and belong to the poorest, most marginal sectors of Bolivian society. As the next section of this article discusses in more detail, lynch mob participants in Cochabamba typically justify their violence as a response to rising crime in their neighborhoods and the apparent inability or unwillingness of the authorities to police their communities effectively.8 The sudden upsurge in lynchings since 2000 is not, I would argue, coincidental. Popular rage against the neoliberal state, brewing since the implementation of the New Economic Policy (state decree 21060) in 1985, began to crystallize and find expression around the turn of the millennium. Significantly, 2000 was the year the ‘Water War’ erupted in Cochabamba (Farthing and Kohl, 2001). A large-scale popular uprising in response to 393 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com the Bolivian state’s attempt to privatize the water supply system in that city, the Water War forced the cancellation of the state’s contract with the multi- national Bechtel corporation, an event that was internationally hailed as a popular victory in the struggle against globalization (Finnegan, 2002). Several economic shocks also may have contributed to the rising tide of popular violence in Cochabamba at around this same time. The relatively successful coca-eradication program (the so-called Plan Dignidad) initiated in 1997 during the presidency of General Hugo Banzer had by 2000 begun to severely impact the regional economy of Cochabamba, as many families lost a longstanding source of informal income. Additionally, the Argentine economic crisis negatively affected the Cochabamba economy, as thousands of migrants were forced to return home and families dependent on foreign remittances lost a considerable portion of their income. By 2000, people in Cochabamba had become poorer and increasingly frustrated with a priva- tizing state whose promises of greater prosperity for all had clearly failed to materialize.9 Despite its many connections to contemporary political economy, local media accounts typically frame the lynching violence on Cochabamba’s south side as acts of savagery, committed by people who lack a basic respect for democracy and civilized society. Bolivian newspaper commentaries frequently denounce lynching as ‘an attack on social institutions’ (Los Tiempos, 2001) that threatens to unravel the fabric binding the human community together. Lynchings are described as ‘primitive and cruel’, an embarrassment for a nation striving for modernity and progress: ‘The lynchings make Bolivia one of the most backward countries on earth,’ remarks one editorial writer (Opinión, 2002). ‘The image of Bolivia, of all of us, should not be marked by the primitive conduct of certain groups of people.’ Another columnist characterized lynchings as acts of ‘primitive barbarism’, asserting that they are symptoms of ‘social degradation’ that suggest that Bolivian society ‘is losing the fundamental values that are needed to build a democratic society’ (Opinión, 2003b). Lynchings are described as a brake on national progress and an obstacle to democratic advancement. From the perspective of analysts who produce the formal public discourse about the meaning of lynchings in Bolivia, it is the lynch- ings themselves that are the cause, rather than an expression, of the failure of democracy in Bolivia today.10 By labeling lynching a survival of some bygone era whose practitioners themselves are retrograde, the practice and its perpetrators are made to stand as representatives of a predemocratic past that now serves as an anchor weighing on national political develop- ment.11 In reading such accusations, however, the fact cannot be overlooked that those being so characterized are indigenous Quechua and Aymara people, and that indigenous people in the Andes have long been depicted in terms similar to those being used to describe lynchings and lynch mobs in Bolivia today – as retrograde and primitive, threats to orderly urban life 394 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com and to civilization itself. Since the colonial era, the very presence of indigenous Andeans in the urban landscape has been considered a viola- tion of the nation’s ‘racialized imaginative geography’ (Radcliffe and Westwood, 1996), which locates ‘Indians’ properly in the countryside, and ‘white’ or ‘mestizo’ populations in the city (Weismantel, 2001). In a similar fashion, indigenous rural-to-urban migrants in Cochabamba have long been perceived by the city’s white middle class (and by the institutions of media, government, and commerce that they control) as invaders, threats to the longstanding social and political order of the city (Goldstein, 2004). The poverty of these people has been characterized as bearing disease and contamination into the city (see Colloredo-Mansfeld, 1998; Douglas, 1966); their patterns of land invasion and spontaneous settlement have been viewed as attacks on the ‘rational’ and orderly growth of the city itself (Solares Serrano, 1986; Urquidi Zambrana, 1967, 1986). Accusations of ‘barbarism’ and antagonism towards democracy ascribed to lynching inter- sect with this enduring racist critique of indigenous urbanites, demonizing the actors without attempting to understand the context that makes their violence possible and predictable. Instead of regarding lynching as a barbaric survival from the past, I argue instead that lynching be understood in the context of neoliberal structural reform, within which it is embedded and from which it derives its logic and, in the minds of its perpetrators, its legitimacy. Lynching, in a sense, fulfills the highest mandates of neoliberal rationality: it represents the privatization of justice, the assumption by individuals of a service ordi- narily provided by the state, and so points to the increasing importance of ‘flexibility’ as a personal and communal survival strategy in neoliberal society. Lynching fills the gap left by the withdrawal of the state from the delivery of official justice, as citizens themselves take on the responsibility of creating security when the state will not. Given the state’s orientation toward responsibilization – the transfer of state functions to citizens and informal or non-governmental associations – lynching is the logical and indeed predictable response of people required to be flexible in providing for their own needs. Neoliberalism and the crisis of security Neoliberal economic reforms accompanying democratization throughout most of the ‘developing world’ were intended to create a more productive environment for transnational capitalism by removing barriers to trade and creating a ‘flexible’ workforce that could provide cheap labor to trans- national industries (Harvey, 2001). Flexibility is a critical dimension of late capitalism, part of the post-Fordist logic that allows corporations to maximize the turnover rate of capital by eschewing fixed production facili- ties and their associated labor costs, replacing these older, inflexible 395 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com relations of production with strategies of ‘outsourcing’, labor reorganiza- tion, and geographical mobility as part of a regime of ‘flexible accumu- lation’ (Harvey, 1990; Inda, 2000). Promising a more efficient economy that would create more and better jobs for national workers while curtail- ing state involvement in both market regulation and the social reproduc- tion of labor, neoliberalism has thoroughly displaced the developmentalist model that had for decades been the dominant approach to economic policymaking, shifting the emphasis in public discourse from national development to global competitiveness and efficiency (Arbona, n.d., a). Whereas in this earlier economic model the state was a major player in promoting national development by controlling market forces and guaran- teeing (at least rhetorically) jobs and social welfare for the poor, in the neoliberal era the state encourages the development of ‘self-help’ social and economic mechanisms, devolving responsibility for the maintenance of workers from the private sector and the state to local communities, non- governmental organizations, families, and individuals (Gill, 2000). These reforms have resulted in a measurable increase in economic inequality and a dramatic decrease in the standard of living for the rural and urban poor, as ownership of land and other resources has become further concen- trated, peasants have been dispossessed, and public sector jobs have dis- appeared (Gwynne and Kay, 2000; Lustig, 1995; Petras and Veltmeyer, 1999). Today at least 260 million people in Latin America live in poverty (Aiyer, 2001; Bulmer-Thomas, 1996; Chossudovsky, 1997). Within Latin America, Bolivia has been one of the most aggressive implementers of the neoliberal model. Since 1985, the Bolivian state has promoted policies that have withdrawn the state from direct participation in the national economy, privileging private sector firms as the engines of development and encouraging self-generation of employment for displaced workers (Benería, 1996; ILO, 2002). Virtually all nationally owned industries have been privatized (or ‘capitalized’, in the language of the system),12 the political potential of trade unions has been defused (García Linera, 1999), state programs and jobs have been cut, and the state itself has been ‘decentralized’, with the transfer of federal responsibilities to municipalities and non-governmental organizations (Kohl, 2003; Medeiros, 2001; Postero, 1999). In the realm of labor policy, Bolivia has emphasized a program of labor flexibilization (‘flexibilización laboral’), a mainstay of Bolivian economic policy since 1985. Being flexible in the Bolivian context means being willing to work on short-term contracts, in home-based industries, and, increasingly, in the informal economy, creating one’s own income-generating opportunities when the regular economy fails to provide work. Flexibility also means caring for oneself and one’s family by working without a net, that is, through self-employment without benefit of public provision of social security. In the language of Bolivian neoliberalism, these forms of flexibilización and responsibilización of individuals represent what sociologist Ulrich Beck (1992: 143) has 396 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com identified as ‘a generalization of employment insecurity’ within post-Fordist capitalism, compounded by a complete sundering of the social reciprocity that capital and the state historically provided to labor. Flexibility and individual responsibility, then, are the watchwords of Bolivian society today, and the state has pursued specific policies that put these principles into practice. For example, the Bolivian state is a major proponent of privately owned micro-enterprises, small-scale business inter- ests intended to promote ‘economic democracy’ by generating new forms of employment, thereby providing market integration for the poor and marginalized (Rhyne, 2001). Micro-enterprise promotion positions the state as taking an active role in providing for its citizens, part of the state’s own attempt to stabilize neoliberalism through highly visible public policy initiatives intended to demonstrate its commitment to strengthening the domestic economy. But, as Arbona (n.d., b) points out, micro-enterprises in fact require very little investment or oversight on the part of the state, and serve to transfer social welfare responsibilities from the state to the working poor themselves. Micro-enterprises fulfill the demands of inter- national lenders in that they do not require the state to participate directly in the national economy, while promoting ‘individual responsibility as the only possibility for securing welfare’ (Arbona, n.d., b: 13). In the words of a Presidential decree on the subject of micro-enterprises, the Bolivian work- force is encouraged to be ‘flexible’, and to demonstrate ‘responsibility, creativity, and adaptability’ (Presidencia de la República de Bolivia, 1998; cited in Arbona, n.d., b) in generating employment in the face of the ongoing economic crisis. But the state offers no concrete alternatives when such enterprises fail, nor any material support to ensure that they do not. The economic insecurity created by neoliberal reforms is comple- mented by a physical insecurity resulting from rising crime rates that have accompanied structural adjustment, compounded by the deficiencies of an unreliable and inequitable system of official justice. For the upper class, police and judicial services are at least nominally available to investigate crimes, respond to grievances, and resolve conflicts. But for the majority of crime victims, who are typically poor and marginalized, honest and reliable police protection or recourse to the law are simply nonexistent. Instead, the poor themselves are often criminalized in public discourse and in police practice, and experience heightened police violence, as states adopt more repressive and violent measures in the name of crime control (Davis, 2003; Frühling, 2003; Méndez et al., 1999; Pereira and Davis, 2000; Schneider and Amar, 2003; Ungar, 2002). Even in the absence of direct experience of crime, the fear of criminal and state violence, perpetuated by ‘talk of crime’, ratchets up the levels of insecurity people confront and the extremes to which they are willing to go to attain security (Caldeira, 2000; Dammert and Malone, 2003; Elbert, 1998; Rotker, 2002). Especially in urban areas, a general feeling of fear and insecurity may seem all- encompassing and inescapable, part of the habitus of daily life (Garland, 397 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com 2001: 153; Merry, 1981). Facing widespread police corruption and violence, compounded by a generalized and apparently endless economic ‘crisis’, urban residents experience an overwhelming sense of ‘ontological insecurity’, a pervasive sense of despair and uncertainty that Anthony Giddens (1990) has identified as one of the defining conditions of late modernity. While neoliberal economic policy has become ubiquitous throughout Latin America since the mid-1980s, the hegemony of neoliberal philosophy has been far from absolute, the promised benefits of democratic and economic reform contradicted by the escalating poverty and violence of neoliberal society. Nevertheless, the themes of flexibility, privatization, and self-help individualism, so prominent within liberal capitalism, emerge as profound cultural forces that shape the behavior of national subjects, and in turn are shaped by them. As the ethnographic discussion in the next section of this article explores, this is particularly true in efforts initiated by poor urban Bolivians to establish ‘security’ in their communities. Aban- doned and victimized by the state and its policing and judicial apparatus, for many citizens the only viable option for obtaining security appears to be ‘self-help’ justice-making (for the most part, through lynching) to create some semblance of order in their community (though this strategy tends to perpetuate the cycle of violence within which poor communities are already ensnared). Rather than rely on the empty promises of the state and its official justice system, many residents of Cochabamba’s marginal barrios recognize the need to be ‘flexible’, to use ‘responsibility, creativity, and adaptability’ in pursuing ‘justice’ by other means. If the state will not provide work, people must create their own employment opportunities; similarly, if the state will not provide justice, punishing criminals becomes an individual responsibility. Taking the law ‘into one’s own hands’ has a very different resonance when understood in light of these larger, official discourses and practices, as the next section explores. ‘No hay justicia en Bolivia’ In February of 2001, a US Peace Corps volunteer in Bolivia named Walter Poirier disappeared somewhere in rural La Paz department. His body was never found, and no sightings of him have been reported. Despite urgings from the Peace Corps and the US State Department, the Bolivian police have been unable to produce any evidence related to Poirier’s disappear- ance or whereabouts. This incident has generated much commentary on the Peace Corps’ online discussion boards, including a posting from someone named ‘Nina’, who titled her contribution ‘THERE IS NO JUSTICE IN BOLIVIA’: I just read about the missing person Mr. Poirier. I feel sad that he disappeared in Bolivia. However if you want to find information about him, you have to go in person to La Paz. Please take professional people who can do the job from here. Because in Bolivia ‘the judicial system’ is non-existent. The authorities do 398 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com not do their work and have no means to go from one place to another to inves- tigate. My brother was killed in La Paz, Bolivia on March 8, 2003. I went three times to La Paz to investigate his death. We did a necropsy and found out that he died because somebody hit him on the head causing hematomas. The Bolivian police did not do a reconstruction of the crime scene for five months. So I couldn’t get any finger prints or samples. The clothes he was wearing when they found him were thrown on the floor at the police station. The police does not have pictures of the autopsy. And after 2 months we found one sample of the gastric fluids taken from the autopsy. I was more outraged, when the police investigator that was assigned to my brother’s death was removed and re- assigned to another case of a rich person. They left my brother’s case without investigator for 5 months . . . At the end, they closed the case without solving it. The police does not have any chemicals when they investigate a crime scene, they don’t have paper to write reports, they do not have money to buy film to take pictures of the crime scene, and I had to pay transportation for the police workers whenever they needed to go and do something for my brother’s case. This terrible crime is unsolved, now for me the only solution is to complain to the human rights [representatives]. Because in Bolivia there is no justice for middle class or poor people. The police is so corrupt that for doing a simple thing they want money. I spent so much money in lawyers and bribing the police workers to do their job. (http://PeaceCorpsOnline.org/messages/messages/ 2629/2013899.html; sic) The failure of the state to provide adequate security and an accessible justice system to its people has been one of the key sources of state delegit- imation in Bolivia today, and pertains directly to the neoliberal restructur- ing of the nation so visibly denounced in the Gas War. Even as the national crime rate quadrupled between 1993 and 1999, the overall budget for the Bolivian national police force shrank; most of that budget was allocated toward purchasing equipment rather than hiring or training police officers. In 1999, the police budget was reduced by 25 percent and in each year since has been cut by an equal or greater percentage of the remaining total (Ungar, 2003: 34). The lack of police protection is particularly evident in urban areas, which have expanded rapidly over the last few decades, again in response to neoliberal reforms that closed the nationally owned mining sector and otherwise jeopardized rural livelihoods, propelling people to the cities. In Cochabamba, for example, fewer than 1000 police officers are assigned to protect a population of nearly 800,000 residents;13 fewer than a dozen police vehicles are deployed in the city, while a fleet of police motorcycles sits idle, the department lacking funds to buy gasoline to run them. The investigative capacity of the Cochabamba branch of the national police force is similarly weak: police lack the training and material resources to collect and preserve evidence, and to follow up leads effec- tively. The police morgue is a veritable house of horrors, with the cadavers of crime victims left to decompose in the open air for periods of up to three weeks, the authorities lacking refrigeration facilities and medical personnel to perform expedient autopsies. Forensics departments are understaffed, 399 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com and lack even the most basic equipment (including rubber gloves and surgical instruments) to go about their work in a manner that guarantees the validity of evidence obtained (Herrera G., 2003). Officially, crime rates in Bolivia increased 140 percent per year between 1995 and 2002 (Conte, 2003b), though most crimes go unreported due to citizens’ complete lack of faith in the police institution’s ability to investi- gate and arrest criminal suspects. People of all social classes in Cochabamba attribute this failure to the deep and extensive corruption that permeates the Bolivian police and legal professions, a result of the poor salaries paid to justice professionals (a street officer earns under $1300 a year) and the ever-present temptation to profit from one’s contacts with criminal networks (Ungar, 2003). Human rights activists argue that corruption actually serves to maintain the police force as an institution: in the absence of adequate public funding, the force relies on the money its officers skim or extort from the criminals they apprehend to allow them to purchase such mundane necessities as gasoline. The recent, highly publicized Blas Valencia scandal – which revealed the existence of a corrupt ‘mafia’ of high- level officers based mostly in La Paz but extending to other cities as well – seemed to confirm the credibility of accusations claiming that corruption is pervasive throughout the police establishment.14 This perception comes through clearly in interviews I have conducted with groups of residents from different social classes, genders, and occu- pations in marginal neighborhoods of Cochabamba city. Many people echo Nina’s testimony, above, asserting that the police are inept and corrupt, and that the administration of justice favors the rich over the poor and the middle class. ‘The police are terrible,’ reported one woman, a coordinator of an artisan’s group in the city.15 ‘There is no justice in Bolivia. At least for the poor there isn’t. You have to have money to get justice.’ Many people contend (like Nina) that the police will not investigate unless the complainant pays them to. People report that the police demand money to pay for the costs of routine investigations: The first thing they ask for in the PTJ [Policía Técnica Judicial] is money. My niece was murdered and when we went to the police so that they would inves- tigate, the first thing they asked us for was $100 to begin the investigation. Imagine how much they would want to complete the investigation! Because we didn’t have money, we had to leave it at that. She was killed, she was buried, but nothing. Another artisan recounted her own experience of being robbed, and going to report the crime to the police: I go into the PTJ, which at that time was operating out of the main plaza, I go in and, ‘Yes, I recognize him, there he is.’ They have photos of those offenders (malhechores) all over the place in there, and I go, ‘That’s him,’ I say. . . . ‘Ahh! Of course that’s him, señora, tomorrow we’ll go and recover [the money]. But only half.’ ‘Okay,’ I said, ‘half.’ I accepted, no? Such blackmail! But I accepted, half. And to this day I haven’t gotten my half. 400 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com The sense of powerlessness that people derive from their encounters with police colors their view of official justice more generally, and shapes their understanding of their own subordination within the broader sociopoliti- cal arena. In the words of another artisan: It seems to me that our hands are tied, that we can’t do anything, we don’t have the power. Those that are in power, yes, they can do and undo things . . . but society can’t do anything because we don’t have the power, we don’t have the political power, we don’t have the economic power, so if we protest it is all in vain . . . Many people confronting this situation of vulnerability and powerless- ness see a direct link between police corruption and neglect and the impulse to take the law into their own hands. In Villa Sebastián Pagador, on Cochabamba’s far southeastern fringe, a group of women described what happened after a crime was committed in the barrio in 1995. Here, lynching is described as the direct result of police inaction and corruption: Señora 1: There is a denunciation, the police come, they take notes, notes, that’s it, then the thing is forgotten. If you don’t put down any money, there is no investigation. Señora 2: That’s why we make justice with our own hands, too, sometimes we tie him up, like that time when the residents here . . . Señora 1: They burned him. The logic behind this self-help administration of justice becomes even more evident when considered in light of two other kinds of privatization of security – police corruption and the rise of private policing – that have also intensified in the neoliberal era. Privatization and corruption The extortion of crime victims and their families by the national police represents another form of Bolivian privatization, in this case the privatiza- tion of public functions by the very personnel charged with their execution. Police corruption converts the public administration of justice into a private resource that maintains both individual police officers and, ironi- cally, the police institution itself. Corrupt officers turn the police investi- gation into a form of prospecting (what economists call ‘rent-seeking behavior’; Kohl, 2004; Krueger, 1974), using their authority to pursue indi- vidual profit, while paying kickbacks to officers higher up the ladder who naturally turn a blind eye to such proceedings. The police department further encourages this ‘entrepreneurial’ behavior, both to cover its insti- tutional costs and to turn a profit for its operatives. Encounters between private citizens and public officials like those described above thus consti- tute a double victimization for those who report crimes to the police – first 401 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com at the hands of criminals, and then at those of the police themselves, all of whom operate according to a code of profit maximization at the expense of the poor. A 1999 study of the Bolivian national police issued by an external review panel (composed of officers and representatives of the Colombian police force) described the police institution as ‘a bunker whose operation is concentrated to a large degree, in attending to individ- ual interests related to illicit enrichment, the granting of favors to groups from outside the institution, and the obtaining of a higher social position through the ranks of the police hierarchy’ (Los Tiempos, 2003). However, official knowledge of the problem has not led to any changes in police procedure or oversight of the daily management of the institution, and no action has been taken on the Colombian report. For poor Cochabambinos, official denials of corruption stand as another indication that there is no reliable public sector to which they can appeal for redress of grievances. People typically do not report most crimes to the police, realizing that it will not be likely to result in any action being taken, and to the contrary may end up costing them more than the original offense that they have suffered. For some, this state of affairs translates directly into individual responsibility and an impulse to take matters into their own hands. Said Cochabamba resident: ‘I also have this attitude of lynching, because I don’t see any other way, that the laws, that the judicial organizations offer a real solution to handling delinquents. . . . Especially, there is no solution within the justice [organizations], each person has to make his own justice.’ The police themselves generally concur with the assessment that they are unable to control crime or police the barrios. Privately, individual police officers confess a certain sympathy for the lynchings, which commonly occur in barrios where they themselves reside. My friend Fausto Huanca, for example, a low-ranking street officer in the national police force and a resident of Villa Pagador, is deeply ashamed of the corruption revealed by the Blas Valencia scandal, and considers it a black mark on an otherwise decent profession. At the same time, Don Fausto is a member of a force deeply stratified along class and racial lines. For the most part, members of the officer corps tend to be classified as ‘white’ in the national racial hier- archy, a distinction that generally correlates with a middle- or upper-class income, background, and lifestyle. Ordinary police officers of the lower ranks like Don Fausto, on the other hand, tend to be categorized as indigenous and poor. Like Don Fausto, they live in the barrios rather than in the city center or the better suburbs, and so are themselves vulnerable to the same kinds of criminal predation as their neighbors. Trained in the service of a police force that is both nationalistic and resolutely masculine, men like Don Fausto espouse a rhetoric of law that places the exercise of control and violence solely in the hands of the ‘legally constituted authori- ties’. But they also recognize that these authorities are themselves corrupt, and as barrio residents they share the critique of the police held by the 402 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com majority of their neighbors. The low-level policemen recognize that they are underpaid and typically called upon to do the dirtiest jobs of repres- sion and control, but they also embrace this work as their duty as citizens and as men (compare with Gill’s [2000] study of the Bolivian military). They thus regard lynching as a problem and an inevitability. Don Fausto, for example, condemns lynching as a crime, an inappropriate exercise of force that must be prosecuted to the fullest extent of the law. On the other hand, he is highly sympathetic towards the lynch mob and its aims, and is reluctant to criticize the actions of people who are, in matter of fact, his friends, relatives, and neighbors. Other private forms of policing and law enforcement have also emerged in recent years, which put a prettier face on vigilante justice while partici- pating in the same logic and similar techniques as the lynching. In Cochabamba today, more than 100 private security firms have been created to provide private police services to all those willing to pay.16 Though origi- nally confined to the wealthier zones of the city, today these security firms can be found in most parts of Cochabamba, filling in for the absent state in poor barrios throughout the city. In Villa Pagador, for example, residents of a barrio sector known as Segundo Grupo contribute one boliviano (approx- imately 15 US cents) per day to pay for a security patrol on the main avenue running through their zone. Private security firms like this one are often founded and managed by retired military or police officers, entrepreneurs schooled in violence and corruption who take advantage of the need for their services created by deficiencies in the very institutions they formerly served. Firms exploit the general climate of fear and insecurity created by rising crime and state inadequacy to generate business for themselves. On the street where I live in Cochabamba, for example, the local security provider (a firm with the witty English-language name ‘Bolivian Pest Control’) puts out a monthly newsletter in which they report on various cases of police inadequacy in Cochabamba, citing newspaper articles to that effect; they also offer their clients suggestions on how to improve home security, including such helpful tips as: ‘Every time you enter or leave your dwelling, secure the door with two turns of the lock and put on the security chain and if you have another lock use that one, too’ and ‘Women and young ladies should avoid drying their underwear in visible places and should not wear scanty clothing on balconies or in front of windows, in case a sex maniac is watching.’ Fear mongering of this sort represents yet another kind of structural violence, one generated by the neoliberal state and exploited by private firms that have arisen in its absence. While many people profess a satisfaction with the services provided by the private security firms, others are less sanguine. They point to the fact that the young men these firms employ to patrol the streets are oftentimes themselves former criminals, recently released thieves and others familiar with the ins and outs of the local crime scene and the Bolivian justice system. Many people whose neighborhoods are patrolled by these firms 403 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com claim that the private security providers are no better than the police, using their privileged position as uniformed thugs in the barrios to communicate with accomplices and rob the very homes they are supposed to protect. ‘In my barrio, near my aunt’s house,’ said one young woman, ‘where these very same private security guards are stationed, they spy out the house and inform others that they can enter, and they have gone into various houses, they have emptied out various houses in the barrio.’ Barrio residents who refuse to pay for the services of the neighborhood’s private firm may find their homes singled out for repeated burglaries and vandalism. After her home was robbed, apparently with the collusion of local private security officers whom she had been reluctant to pay, another friend who works as an architect for the Cochabamba municipal government confessed to me that, ‘Now I know how the lynch mobs feel.’ The security firms operate very much like a protection racket, carving the city up into turfs that different groups control, often using violence to punish criminal suspects whom they apprehend, to ward off competing firms encroaching on their territory,17 or to threaten recalcitrant clients. Though currently forbidden to carry firearms under Bolivian law, the firms are agitating Congress for this right, which they deem necessary to perform their functions; others fear that this will only hasten the evolution of these firms from mafias into full-blown paramilitaries, furthering the devolution of other state functions (i.e. the role of the military) to private enterprises and creating an additional threat to democratic stability in the process. Conclusion Neoliberal violence, including physical violence produced by the military, police personnel, private security guards, and lynch mobs, and the struc- tural violence of poverty and insecurity, are all grounded in the reforms of the neoliberal state and the cultural logic of privatization, flexibility, and self-help that accompanies them. The Bolivian state’s response to the lynching phenomenon is further indicative of this relationship. Even as it has formally denounced lynching as a threat to democratic society, the Bolivian state (in keeping with its broad neoliberal stance celebrating indi- vidual enterprise as an alternative to state involvement) has acted to encourage private and citizen’s groups to further adopt responsibility for justice administration. For example, just a few weeks prior to his forced resignation in 2003, President Sanchez de Lozada responded to increas- ingly strident calls for improved ‘citizen security’ in Bolivia by announcing a plan (never implemented) to create ‘anticrime gangs’ (pandillas anti- crimen) in various Bolivian cities. These gangs, officially known as ‘youth citizen security brigades’ (brigadas juveniles de seguridad ciudadana), would have consisted of young people who would patrol certain zones of the city, confronting other, criminal youth gangs and somehow preventing them 404 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com from committing crimes. Decried by critics and human rights defenders as unleashing ‘a new war against society’ (Conte, 2003a), the president’s proposal was steeped in the logic of the liberal citizen, in which ‘good’ people would act independently and without state supervision to deter ‘bad’ people from committing antisocial acts. This same logic provides the foundation for the lynch mob, whose members view themselves as filling in for the absent state, pursuing ‘delincuentes’ and ‘malhechores’ who prey on the good people of society. Lost in this good/bad distinction is the fact that delincuentes and linchadores (lynch-mob participants) alike are poor people of indigenous origin, engaged in an escalating cycle of violence whose end is not currently in sight. The state’s embrace of this logic amounts to an endorsement of lynching as a mode of securing justice, which likewise requires no state supervision or state financing to execute. Neoliberalism, like the classical liberalism from which it is descended, has at its base a claim to promote individual freedom, a promise to liberate the individual from the inherently oppressive power of government (Anderson, 1992). The authors of 20th-century liberal capitalism, economists like F.A. Hayek (1944) and Milton Friedman (Friedman and Friedman, 1962), believed that only by restricting the state’s involvement in economic planning and management could the state’s coercive power be effectively limited. Economic regulation, in this view, imposes constraints on the basic liberty of the individual (said to be the cornerstone of Western civilization), thus requiring the separation of the economic from the political to create a freer and more democratic society. At the same time as it mandates the state’s withdrawal from the national economy, however, liberalism assumes that the state will provide the broader social and civic institutions within which capi- talism can function unfettered and individual liberty can be attained. This includes the establishment and maintenance of a democratic rule of law, to create a safe and stable society within which capital markets can flourish and individual potential can be achieved. Key to the entire system is a respect for individual rights and freedoms. According to liberalism’s proponents, by granting rights to individuals, and by respecting popular sovereignty and maintaining a rule of law to guarantee these rights, the state recognizes human dignity and promotes individual liberty (Fukuyama, 1992). In the name of such noble ideals, neoliberalism has become the dominant paradigm of 21st-century global political economy. But the contradiction between liberalism’s promise and its reality in Bolivia is manifest in the lives of people living under its dominion. Like police officers who at once condemn and sympathize with lynching violence in the barrios of Cochabamba, ordinary citizens demonstrate a contradictory consciousness when facing the insecurity of daily life in a neoliberal democracy. As the protests by members of the so-called ‘popular classes’ in both the Water War and the Gas War clearly indicate, people in Bolivia recognize that their poverty has its roots in transnational capitalism, and that the forces of privatization and the open market have had negative 405 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com impacts on their employment opportunities, standard of living, and access to basic services. Protesters who reject the privatization and expropriation of natural resources are articulating a critique of global political economy that accurately perceives the role of transnational forces in restructuring Bolivian social life, and which ultimately are responsible for their diminish- ing economic and personal security. As I have suggested in this article, however, at the same time as they stridently and publicly reject neoliberalism, in their communities ordinary Bolivians have adopted practices that clearly express and enact neoliberal rationality. The same cultural logic of individual responsibility, flexibility, and self-help that informs both Bolivian labor policy and the state’s approach to justice administration has pervaded civil society and its base communities, whose members privatize justice when the state refuses to treat it as a public good. This is the double-sided nature of what I have identified as neoliberal violence. Not merely an expression of the state’s commitment to protecting and defending the interests of capital, neoliberal violence is also structural violence, an inherent component of the neoliberal project and its associated cultural values, which underlie the general condition of insecurity that is both cause and result of popular violence. The ongoing Gas War has nakedly revealed the Bolivian state’s fundamental disregard for the rights of individuals when they challenge the state’s neoliberal schemes; the insecurity of daily life is a less visible, though equally destructive, form of violence, and as a source of social disarticula- tion it precipitates other forms of violence in their turn. Acknowledgements An earlier version of this article was presented at the 102nd annual meeting of the American Anthropological Association, Chicago, IL, 19–23 November 2003. Funding for this research was provided by a Grant for Research and Writing from the John D. and Catherine T. MacArthur Foundation, and by a Summer Faculty Fellowship from the College of the Holy Cross. For help and feedback on this paper, I wish to thank Juan Manuel Arbona, Leigh Binford, Jennifer Burrell, Philip Coyle, Angelique Haugerud, Billie Jean Isbell, Benjamin Kohl, Kathryn Ledebur, Sally Engle Merry, and Shannon Speed, as well as the editors and anonymous reviewers for Critique of Anthropology. Special thanks to Rose Marie Achá, Ana Laura Durán, Saúl García, Eric Hinojosa, and Theo Röncken for help with research and reflection on these ideas. Notes 1 Additionally, people were protesting the Nuevo Código Tributario, which restruc- tured national income taxes in such a way as to extract more wealth from the poor and middle classes, so as to generate money for foreign debt repayment; and the Ley de Seguridad Ciudadana, which prescribed long prison sentences for 406 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com social protestors employing road blockades in their demonstrations. The security law also removed government funding for public illumination projects, a program that had benefited the marginal barrios of the nation’s cities whose streets are typically dangerous after dark. 2 The US government backed Sanchez de Lozada, calling on all Bolivians ‘to reject confrontation that could lead to violence and injury. The international community understands and supports the legitimate interests of all the Bolivian people, and we urge them to express and promote those only through demo- cratic and peaceful means’ (DOS Press Release, 15 October 2003). 3 Sanchez de Lozada, in his first (non-consecutive) term as president of Bolivia in the mid-1990s, was the principal architect of an economic and political restructuring scheme (the Plan de Todos) that systematized a program of private foreign investment in formerly state-owned enterprises; see Kohl (2003). 4 At the time of this writing in 2005, only one death has been officially attributed to the recent round of protests, though the regime of another Bolivian president, Carlos Mesa, has already fallen victim to them. 5 In this analysis, I follow Aihwa Ong (1999) in understanding globalization as the flow not only of capital, information, and people across national borders, but of the cultural logics that underpin post-Fordist capitalism and that profoundly impact, and are negotiated by, local populations. This approach aims to integrate, rather than bifurcate, the local and the global, the cultural and the political-economic. ‘Only by weaving the analysis of cultural politics and political economy into a single framework,’ Ong says, ‘can we hope to provide a nuanced delineation of the complex relations between transnational phenomena, national regimes, and cultural practices in late modernity. . . . An under- standing of political economy remains central as capitalism . . . has become even more deeply embroiled in the ways different cultural logics give meanings to our dreams, actions, goals, and sense of how we are to conduct ourselves in the world.’ (1999: 16) 6 A fuller account and analysis of this incident can be found in Goldstein (2003, 2004). 7 For considerations of lynching in other Latin American contexts, see Burrell (2002), Castillo Claudett (2000), Fuentes Díaz and Binford (2001), Guerrero (2001) and Vilas (2001). 8 Other similar incidents in more rural contexts include the executions of suspected cattle thieves in the Cochabamba valley, and the execution of the mayor of Ayo Ayo, an Aymara community on the Bolivian altiplano. This latter incident, though initially described as a lynching, later proved to be more of a mob-style execution, enacted by rival gangs in this town. 9 My thanks to Ben Kohl for his thoughts on these subjects. 10 Elsewhere (Goldstein, 2004) I have examined another emerging strain in the media analysis of lynching, which tends to be more sociologically grounded and sympathetic to the actions of lynch mobs. As the problems of the Bolivian economic crisis continue to mount, the media is becoming less openly condem- natory of lynching ‘savagery’. 11 This problem is also apparent in arguments (offered by some lynch mob partici- pants seeking to justify their actions by an appeal to ‘tradition’) that theorize lynching to be some sort of holdover from the rural past, a contemporary expression of older forms of traditional law (derecho consuetudinario). While 407 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com physical forms of punishment were not unknown in rural Andean contexts, contemporary urban lynchings represent distinct forms of violence that must be understood (I argue) within the current context of neoliberal reform. 12 For an explanation of the particulars of Bolivian ‘capitalization’ and a discussion of neoliberalism’s failure to create employment in that country, see Kohl (2002). 13 In contrast, for example, New York City has approximately one police officer for every 200 people (http://www.nyc.gov/html/nypd/home.html). 14 Of course, police and other forms of official corruption are not new in Bolivia (or anywhere else, for that matter), but have long been endemic in the political system. Police corruption has taken on a new urgency in the neoliberal era, however, as the next section of this article explores. 15 All translations of interviews and other texts, except where the original English is specified, are my own. 16 One is reminded here of Jane and Peter Schneider’s (2003) work on the Sicilian mafia. 17 Friends and interview subjects report the beginnings of turf wars between rival security firms, who use violence to establish and protect certain areas of the city as their own domains. References Acción Andina (2003) http://www.cedib.org/accionandina/index.php AIN (Andean Information Network) (2003) Tensions Continue to Mount in Bolivia’s ‘Gas War’. Aiyer, Ananthakrishnan (2001) ‘Hemispheric Solutions? Neoliberal Crisis, Criminal- ity and “Democracy” in the Americas’, Urban Anthropology and Studies of Cultural Systems and World Economic Development Summer–Fall: 239–52. Anderson, Perry (1992) A Zone of Engagement. London: Verso. Arbona, Juan Manuel (n.d., a) ‘Managing Policy Failures: Neo-liberal Tensions, Ruptures, and Stabilizations in El Alto, Bolivia’. Unpublished ms. Arbona, Juan Manuel (n.d., b) ‘Restructuring the Informal Economy: The State and the Promotion of Micro-enterprises in Bolivia’. Unpublished ms. Auyero, Javier (2000) ‘The Hyper-shantytown: Neo-liberal Violence(s) in the Argentine Slum’, Ethnography 1(1): 93–116. Beck, Ulrich (1992) Risk Society: Towards a New Modernity. London: Sage. Benería, Lourdes (1996) ‘The Foreign Debt Crisis and the Social Cost of Adjust- ment in Latin America’, in J. Friedmann, R. Abers and L. Autler (eds) Emer- gences: Women’s Struggles for Livelihood in Latin America, pp. 11–27. Los Angeles, CA: UCLA, Latin American Studies Program. Bulmer-Thomas, Victor (1996) The New Economic Model in Latin America and its Impact on Income Distribution and Poverty. New York: St. Martin’s Press. Burrell, Jennifer (2002) ‘Intimate Violence: After Lynching in Todos Santos Cuchu- matán’. Paper presented at the 101st annual meeting of the American Anthro- pological Association, 21 November, New Orleans. Caldeira, Teresa P.R. (2000) City of Walls: Crime, Segregation, and Citizenship in São Paulo. Berkeley: University of California Press. Castillo Claudett, Eduardo (2000) ‘La justicia en tiempos de la ira: Linchamientos populares urbanos en América Latina’, Ecuador Debate 51: 207–26. Chossudovsky, M. (1997) The Globalization of Poverty: Impacts of IMF and World Bank Reforms. London: Zed. 408 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com Colloredo-Mansfeld, Rudi (1998) ‘“Dirty Indians’, Radical Indígenas, and the Political Economy of Social Difference in Modern Ecuador’, Bulletin of Latin American Research 17(2): 185–205. Comaroff, Jean and John L. Comaroff (2001) ‘Millennial Capitalism: First Thoughts on a Second Coming’, in J. Comaroff and J.L. Comaroff (eds) Millennial Capi- talism and the Culture of Neoliberalism, pp. 1–56. Durham, NC and London: Duke University Press. Conte, Gabriel (2003a) ‘Bolivia y sus “pandillas anticrimen”: Una nueva forma de guerra contra la sociedad’. La Paz: Desarme.org. URL (consulted September 2005): http://www.desarme.org Conte, Gabriel (2003b) ‘Para un especialista, el delito es “regulado” en Bolivia por la policía’. La Paz: Desarme.org. URL (consulted September 2005): http:// www.desarme.org Dammert, Lucia and Mary Fran T. Malone (2003) ‘Fear of Crime or Fear of Life? Public Insecurities in Chile’, Bulletin of Latin American Research 22(1): 79–101. Davis, Diane E. (2003) ‘Law Enforcement in Mexico City: Not Yet Under Control’, NACLA Report on the Americas 37(2): 17–24. Douglas, Mary (1966) Purity and Danger: An Analysis of the Concepts of Pollutions and Taboo. London, Boston and Henley: ARK. Elbert, Carlos Alberto (1998) ‘Ideología, corrupción y excesos policiales’, Pena y Estado: Revista Latinoamericana de Política Criminal 3(3): 63–80. Farthing, Linda and Benjamin Kohl (2001) ‘Bolivia’s New Wave of Protest’, NACLA Report on the Americas 34(5): 8–11. Finnegan, William (2002) ‘Leasing the Rain’, The New Yorker 8 April. Foucault, Michel (1991) ‘Governmentality’, in G. Burchell, C. Gordon and P. Miller (eds) The Foucault Effect: Studies in Governmentality, pp. 87–104. Chicago, IL: University of Chicago Press. Friedman, Milton with Rose Friedman (1962) Capitalism and Freedom. Chicago, IL: University of Chicago Press. Frühling, Hugo (2003) ‘Police Reform and the Process of Democratization’, in H. Frühling, J.S. Tulchin and H.A. Golding (eds) Crime and Violence in Latin America: Citizen Security, Democracy, and the State, pp. 15–44. Washington, DC: Woodrow Wilson Center Press. Fuentes Díaz, Antonio and Leigh Binford (2001) ‘Linchamientos en Mexico: Una respuesta a Carlos Vilas’, Bajo el Volcán 2(3): 143–56. Fukuyama, Francis (1992) The End of History and the Last Man. New York: Free Press. García Linera, Alvaro (1999) Reproletarización: Nueva clase obrera y desarollo del capital industrial en Bolivia (1952–1998). La Paz: Muela del Diablo. Garland, David (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Chicago, IL: University of Chicago Press. Giddens, Anthony (1990) The Consequences of Modernity. Cambridge: Polity. Gill, Lesley (2000) Teetering on the Rim: Global Restructuring, Daily Life, and the Armed Retreat of the Bolivian State. New York: Columbia University Press. Godoy, Angelina Snodgrass (2002) ‘Lynchings and the Democratization of Terror in Post-war Guatemala: Implications for Human Rights’, Human Rights Quarterly 24: 640–61. Goldstein, Daniel M. (2003) ‘“In Our Own Hands”: Lynching, Justice and the Law in Bolivia’, American Ethnologist 30(1): 22–43. Goldstein, Daniel M. (2004) The Spectacular City: Violence and Performance in Urban Bolivia. Durham and London: Duke University Press. Guerrero, Andrés (2001) ‘Los linchamientos en las comunidades indígenas: ¿La política perversa de una modernidad marginal?’, Ecuador Debate 53: 197–226. 409 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com Gwynne, Robert N. and Cristobal Kay (2000) ‘Views from the Periphery: Futures of Neoliberalism in Latin America’, Third World Quarterly 21(1): 141–56. Harvey, David (1990) The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change. Oxford: Blackwell. Harvey, David (1991) ‘Flexibility: Threat or Opportunity?’, Socialist Review 21(1): 65–77. Harvey, David (2001) Spaces of Capital: Towards a Critical Geography. Edinburgh: Edinburgh University Press. Hayek, F.A. (1944) The Road to Serfdom. Chicago, IL: University of Chicago Press. Herrera G., Herbert (2003) ‘Médicos forenses están abandonados a su suerte’, Los Tiempos (Cochabamba): C3. ILO (International Labor Organisation) (2002) Women and Men in the Informal Economy: A Statistical Picture. Geneva: ILO. Inda, Jonathan Xavier (2000) ‘A Flexible World: Capitalism, Citizenship, and Post- national Zones’, Political and Legal Anthropology Review 23(1): 86–102. Kohl, Benjamin (2002) ‘Stabilizing Neoliberalism in Bolivia: Popular Participation and Privatization’, Political Geography 21: 449–72. Kohl, Benjamin (2003) ‘Restructuring Citizenship in Bolivia: El Plan de Todos’, International Journal of Urban and Regional Research 27(2): 337–51. Kohl, Benjamin (2004) ‘Privatization Bolivian Style: A Cautionary Tale’, International Journal of Urban and Regional Research 28(4): 893–908. Krueger, Anne O. (1974) ‘The Political Economy of the Rent Seeking Society’, American Economic Review 64 ( June): 291–303. Los Tiempos (2001) ‘Linchamiento: Atacan a instituciones sociales’ (Cochabamba): B-3. Los Tiempos (2003) ‘Policía Boliviana, búnker del enriquecimiento’ (Cochabamba): B-2. Lustig, Nora (1995) Coping with Austerity: Poverty and Inequality in Latin America. Wash- ington, DC: Brookings Institution. Medeiros, Carmen (2001) ‘Civilizing the Popular? The Law of Popular Participation and the Design of a New Civil Society in 1990s Bolivia’, Critique of Anthropology 21(4): 401–25. Méndez, Juan E., Guillermo O’Donnell and Paulo Sérgio Pinheiro (eds) (1999) The (Un)rule of Law and the Underprivileged in Latin America. Notre Dame: University of Notre Dame Press. Merry, Sally Engle (1981) Urban Danger: Life in a Neighborhood of Strangers. Phila- delphia, PA: Temple University Press. Merry, Sally Engle (2001) ‘Spatial Governmentality and the New Urban Social Order: Controlling Gender Violence through Law’, American Anthropologist 103(1): 16–29. Ong, Aihwa (1999) Flexible Citizenship: The Cultural Logics of Transnationality. Durham, NC and London: Duke University Press. Opinión (2002) ‘Los linchamientos se repiten porque las autoridades no hacen nada para evitarlos’ (Cochabamba) 21 June: A1. Opinión (2003a) ‘Bolivia ocupa el segundo lugar en el mundo en casos de linchamientos’ (Cochabamba) 14 July: 4A. Opinión (2003b) ‘El linchamiento tiene hermanas siamesas: La pobreza y violencia’ (Cochabamba) 15 July: 10–11A. Opinión (2003c) ‘Tensa calma y total parálisis en ciudades de La Paz y El Alto’, (Cochabamba) 17 July: A1. Pereira, Anthony W. and Diane E. Davis (2000) ‘Introduction: New Patterns of 410 Critique of Anthropology 25(4) © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com Militarized Violence and Coercion in the Americas’, Latin American Perspectives 27(2): 3–17. Petras, James and Henry Veltmeyer (1999) ‘Latin America at the End of the Millen- nium’, Monthly Review 51(3): 31–52. Postero, Nancy (1999) ‘Bolivia’s Indígena Citizen: Multiculturalism in a Neoliberal Age’, paper presented at the meetings of the American Anthropological Associ- ation, 17–21 November, Chicago, IL. Radcliffe, Sarah A. and Sallie Westwood (1996) Remaking the Nation: Place, Identity, and Politics in Latin America. London: Routledge. Rhyne, Elisabeth (2001) Mainstreaming Microfinance: How Lending to the Poor Began, Grew, and Came of Age in Bolivia. Bloomfield, CT: Kumarian. Robinson, William (2004) A Theory of Global Capitalism: Production, Class and State in a Transnational World. Baltimore, MD: Johns Hopkins University Press. Rotker, Susana (ed.) (2002) Citizens of Fear: Urban Violence in Latin America. New Brunswick, NJ: Rutgers University Press. Schneider, Cathy and Paul E. Amar (2003) ‘The Rise of Crime, Disorder and Authori- tarian Policing: An Introductory Essay’, NACLA Report on the Americas 37(2): 12–16. Schneider, Jane C. and Peter T. Schneider (2003) Reversible Destiny: Mafia, Antimafia, and the Struggle for Palermo. Berkeley: University of California Press. Solares Serrano, Humberto (1986) ‘Movimientos urbanos en Cochabamba’, Opinion (Cochabamba) 23 May: 5–6. Speed, Shannon and Alvaro Reyes (2002) ‘“In Our Own Defense”: Rights and Resist- ance in Chiapas’, Political and Legal Anthropology Review 25(1): 69–89. Ungar, Mark (2002) Elusive Reform: Democracy and the Rule of Law in Latin America. Boulder, CO: Lynne Rienner. Ungar, Mark (2003) ‘Contested Battlefields: Policing in Caracas and La Paz’, NACLA Report on the Americas 37(2): 30–36. Urquidi Zambrana, Jorge (1967) La urbanización de la ciudad de Cochabamba: Síntesis del estudio. Antecedentes. Primera Parte. Cochabamba: Editorial Universitaria. Urquidi Zambrana, Jorge (1986) La urbanización de la ciudad de Cochabamba y el desarrollo regional y urbano: Examen crítico, Vol. 2. Cochabamba: Colegio de arquitectos de Bolivia, Filial Cochabamba. Vilas, Carlos M. (2001) ‘(In)justicia por mano propia: Linchamientos en el México contemporáneo’, Revista Mexicana de Sociología 63(1): 131–60. Weismantel, Mary (2001) Cholas and Pishtacos: Stories of Race and Sex in the Andes. Chicago, IL: University of Chicago Press. Williams, Raymond (1977) Marxism and Literature. Oxford: Oxford University Press. ■ Daniel M. Goldstein is Assistant Professor of Anthropology at Rutgers University. He received his PhD from the University of Arizona in 1997. With funding from a National Science Foundation research grant, he is currently investigating the relationship between personal insecurity and people’s attitudes about democratic governance in the marginal neighborhoods of Cochabamba. His book The Spec- tacular City: Violence and Performance in Urban Bolivia was published in 2004 by Duke University Press. Address: Department of Anthropology, Ruth Adams Building, 131 George Street, Rutgers University, New Brunswick, NJ 08901–1414, USA. [email: dgoldstein@anthropology.rutgers.edu] 411 Goldstein: Flexible Justice: Neoliberal Violence in Bolivia © 2005 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution. at PENNSYLVANIA STATE UNIV on April 10, 2008 http://coa.sagepub.comDownloaded from http://coa.sagepub.com 
work_cv3xs4vdazeithyxrvd4tifuoa	----	Tilburg University Victim-centred restorative justice van Dijk, J.J.M. Published in: Restorative Justice Publication date: 2013 Document Version Publisher's PDF, also known as Version of record Link to publication Citation for published version (APA): van Dijk, J. J. M. (2013). Victim-centred restorative justice. Restorative Justice, 1(3), 426-429. General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. apr. 2021 https://research.tilburguniversity.edu/en/publications/cdf67976-a1a6-4b3c-b6b2-197e18d3a7cd NOTES FROM THE FIELD DOI: http://dx.doi.org/10.5235/20504721.1.3.426 (2013) vol 1 issue 3Restorative Justice: An International Journal426 Victim-centred restorative justice Jan van Dijk Professor in Victimology, INTERVICT, Tilburg University (The Netherlands), Jan.vanDijk@uvt.nl. In the 1985 Council of Europe (CoE) Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure, one of the earliest European legal instru- ments on victims’ rights, mechanisms that are currently known as restorative justice (RJ) were not included in the primary recommendations but listed under a secondary, tamely framed recommendation ‘to examine the possible advantages of mediation and concili- ation schemes’. In the same year, the General Assembly of the United Nations adopted the UN Victims Declaration, Article 7 of which exhorts member states to utilise informal mechanisms ‘where appropriate to facilitate conciliation and redress for victims’. This is one of the subjects about which European victimologists were at the time more cau- tious than those experts from other regions, notably North America, who elaborated the draft of the Victims Declaration in Milan at the UN Crime Congress. The other area where diverging views surfaced was the right to express views and concerns in criminal proceedings, which found its way into the UN Declaration despite opposition and a formal reservation from the UK. Such a recommendation was nowhere to be seen in the CoE Recommendation of the same year. Clearly American and Canadian opinions in Milan prevailed over the European reservations that dominated the deliberations in Strasbourg.1 Since then the position of mediation, or RJ as it is now called in relevant legal instru- ments, has evolved. In 2000 the Economic and Social Council (ECOSOC) of the UN took note of the Basic Principles on the Use of Restorative Justice Programmes in Crimi- nal Matters. This legal text no longer refers to the concept of reconciliation but is in other respects more ambitious than the previous one in the UN Victims Declaration. It states that RJ ‘should be generally available at all stages of the criminal justice process’. However, two years later the ECOSOC took note of a revised text which states that RJ ‘may be used at any stage of the criminal justice process, subject to national law’. However the verb 1 The author was a member of the ad hoc committee elaborating the 1985 CoE Recommendation and took part in the debate in Milan at the UN Crime Congress as a member of the Dutch delegation. (2013) vol 1 issue 3 Restorative Justice: An International Journal 427 Victim-centred restorative justice ‘should’ should have been preferred to the auxiliary verb ‘may’. This change suggests that political support for RJ had lost some of its momentum on the global stage around 2000. In this regard it should also be highlighted that the two texts on RJ were adopted not by the General Assembly but by the considerably less authoritative ECOSOC and that the language used—‘takes note’ of the document, rather than ‘adopts it’—shows a lack of political consensus. It suggests that at least some countries represented in ECOSOC were unwilling to adopt or even welcome the draft text. In the meantime, on the European stage, support for RJ had begun to grow. The Council of Europe adopted its Recommendation on Mediation in Penal Matters in 1999. In this recommendation it is stated that mediation in penal matters should be generally available and that to this end legislation and guidelines are required. The CoE Recom- mendation of 2006 on Victim Assistance duly refers to the 1999 Recommendation on Mediation in Penal Matters. However, the EU Framework Decision of 2001 on the Standing of Victims in Criminal Proceedings is nuanced and less straightforward in its support of RJ. It states that member states ‘shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure’. Here again one senses a turning of the tide around 2000. The belated European enthusiasm for RJ had apparently already waned somewhat. Considering this historical background, it comes as no surprise that in the long- awaited new EU Victims Directive (2012/29/EU) RJ is positioned as an option rather than as an obligation, and that the emphasis is on due process for victims. The provisions under review could in my view rightly be characterised as a plea for victim-centred RJ, a label inspired by the new concept of victim-friendly victim–offender dialogues in the USA, replacing older concepts such as victim–offender reconciliation schemes. These ‘notes from the field’ give me the opportunity to reflect on my own evolv- ing ideas on these matters over the past three decades. In the mid-1980s, as chair of the Dutch Victim Support Organisation, established in 1984, I was advocating easily accessi- ble victim support and better treatment of victims in criminal justice, including effective forms of compensation. These reformist ideas emanated from and were grounded in the idea that the welfare state should be expanded to reach out to crime victims. I was at the time sceptical about the victim’s right to speak up in court as advocated by American vic- timologists, and even more so of mediation, advocated in The Netherlands as a method to divert cases away from criminal justice, inter alia by abolitionists like Louk Hulsman and Herman Bianchi. I suspected those promoting RJ in The Netherlands of just paying lip service to the interests of victims and actually being more on the side of the offenders than of the victims. I was also suspicious of the situation in North America, where early RJ promoters advocated reconciliation and forgiveness as the aim of RJ rather than as one of its possible outcomes. Such supporters seemed to ignore the anger of victims and their search for vindication and compensation. In my view the development of victim support organisations and victim-centred reforms of the criminal justice system should (2013) vol 1 issue 3Restorative Justice: An International Journal428 Jan van Dijk be the first priorities of the victims movement and I regarded RJ as a distraction and, possibly, even a trap for victims. In my experience, victims themselves rarely asked to have their cases diverted away from criminal justice. They tend to ask for better treat- ment by the system, or in other words, for victim-friendly reforms of the system and not for an alternative system. In the meantime two factors have influenced my views of the role of victims in for- mal or informal proceedings, including RJ. The first is that increasing empirical evidence has been presented that participation in both criminal trials and RJ programmes can indeed benefit victims. Secondly, much progress has since been made with the empower- ment of victims through victim support and better treatment within criminal procedure. The victim has been put in a stronger social and legal position and this has undeniably increased his/her agency and freedom to act effectively as a party in proceedings. In the current situation in The Netherlands, for example, victims of serious crimes can rely on support from a case manager of Victim Support Netherlands and from a legal counsel paid for by the state. They also have their own seat in the courtroom. In this new context, I think the right of victims to speak up in court and present their views is now to be wel- comed as an option for those victims who feel ready for it. I am now also more positive towards RJ mechanisms as an option for victims who feel ready for it than I was 30 years ago. My fears that victims would be manipulated and possibly mistreated in the course of RJ procedures by overzealous mediators have diminished because of the improved cultural environment for victims. Victims seem to me now to be sufficiently empowered to take part in RJ procedures without the risk of secondary victimisation. Considering these changes, I now welcome the plea for victim-friendly RJ in the new Directive. I also agree with the criticism that the text is disappointingly weak on the right of victims to benefit from RJ when they opt for such a procedure. The right of voice in the trial to some extent allows the victim the right to confront his/her offender but this is and will remain an option in only a minority of cases. Many less serious cases are never brought before the court. It is a great breakthrough that victims should, according to the Directive, have the right to appeal a decision not to prosecute. This may in fact prove to be the most revolutionary element of the Directive. However, I would also like to give victims the right to access an RJ programme in such cases as an option. In other words, if the prosecutor drops the case for reasons of expediency, the victim should have the right to request a RJ programme instead, besides having the right to appeal against the dismissal. This is an important right in view of the increasing tendency of prosecutors in many European countries to enter into forms of plea bargaining with the suspect in order to speed up the proceedings. These forms of plea bargaining are likely to under- mine the newly gained participatory rights of the victims and this negative effect could in part be counter-balanced by participation in RJ programmes. Finally, I would also want to argue in favour of the right of victims of serious crimes to arrange a meeting with the offender after his/her conviction. To my knowledge such meetings are desired (2013) vol 1 issue 3 Restorative Justice: An International Journal 429 Victim-centred restorative justice by a good many victims for a variety of reasons—certainly not always a desire for recon- ciliation but also to confront the offender with the consequences of his/her crime or to ask for an explanation. In my opinion, the satisfaction of this legitimate need of victims ought to be facilitated by the state. To conclude, I agree with Katrien Lauwaert that the time has come to acknowledge access to victim-friendly RJ as a victim’s right at all relevant stages of the proceedings. In this respect the Directive, however welcome otherwise, falls short of expectations. Regarding RJ the European Commission seems to have erred on the side of caution. 
work_cvvjrfo72rdwbppjra65skx36a	----	108 Book reviews Equal Justice Eric Rakowski, 385 +xii pages, Oxford, 1991, Clarendon Press, £40.00. Professor Rakowski begins his book with a quote from Aristotle's Politics: 'All hold that justice is some kind of equality'. His own account of an egalitarian conception of distributive justice in this outstanding book ranks alongside the pioneering work recently done in this area by writers such as John Rawls and Ronald Dworkin. Rakowski's answer to the question of how scarce resources are to be shared around he calls 'equality of fortune', and his defence of this notion takes up the first half of the book. Like G A Cohen, Rakowski believes that the essence of egalitarianism lies in evening out the effects of 'brute' bad luck, that is, ill fortune which is not the result of risk incurred by the agent. Inequalities arising from chance require a redistribution of resources, and 'resources' here include physical and mental capacities. Ideally, each should start life with equally valuable resources, subject to two caveats: there is some presumption in favour of allowing gifts and bequests to children; and great sacrifices cannot be called for from the more fortunate. Rakowski's is not merely a 'starting-gate' theory. Equality of fortune as a general ideal - along with a stress on the importance of personal autonomy - requires the establishment of various insurance schemes, and the details of these are developed carefully in the book. Theories of justice are often set in opposition to utilitarianism, and here Rakowski's thesis looks particularly strong: why should someone who has already been dealt a bad hand by fate suffer yet more at the hands of morality on the ground that he or she will be an inefficient consumer of resources? Like Rawls, Rakowski offers us a view of 'justice as fairness'. Rakowski closes Part I of the book with a chapter on whether transferable organs or blood should be seen as resources subject to redistribution. He argues that they should be, and that in certain circumstances compulsory extraction of, for example, blood might be justified. This would be unusual, however, if his recommendation that post mortem extractions be the norm were adopted. Part II of the book defends an account of strict liability which may be useful to those interested in medical negligence. In particular, Rakowski's attack on the idea that tort law is to be understood in wealth maximising terms is such that this view must henceforth be consigned to the dustbin of philosophical history. In Part III, Rakowski returns to the more straightforwardly medical ethical issue of the allocation of life-saving resources. He argues that numbers are relevant in life-saving decisions, but not because it is objectively better if, other things being equal, a larger group survives. Rather, we are each required now to form an intention to save the larger group in any such case, since this is in the interest of all. Rakowski dedicates a chapter to considering whether particular characteristics ofpersons, such as age or moral character, should influence choices between lives. His subtle discussion concludes that only (i) large differences in age and (ii) the individual's responsibility for his or her plight are relevant. He ends the book by defending a rights-based view against, in most circumstances, killing one being to benefit others. I disagree with some of Rakowski's negative arguments, acute as they are; but his sophisticated and humane account of justice is among the most powerful and persuasive I have read. His discussions of medical ethical questions will be the starting point for those who address these questions in future. This is a book that deserves to be - and no doubt will be - taken very seriously indeed. ROGER CRISP, Fellow in Philosophy, St Anne's College, Oxford. AIDS: an Epidemic of Ethical Puzzles Edited by the Hastings Center, USA, 187 pages, Dartmouth, 1991, Gower Academic Publishing Group, £32.50 hc. The acquired immune deficiency syndrome, with its undertones of sexuality and a pervasive fear of contagion, has been the catalyst for a revolution in professional ethics. The issues of patient autonomy, the conduct of placebo control trials, the rights of confidentiality, informed consent, death with dignity, and the obligations to provide care for individual health care workers are all explored in this recent collection of papers from the Hastings Center. What struck me most forcibly, on reading this book, was the major shift in ethical perceptions during the AIDS epidemic. The early paternalistic pronouncements from professional bodies have been modified in the light ofexperience and have lost some oftheir lofty tone. It is helpful in the present difficulties of the National Health Service to recognise that in Britain there has long been a consensus of an entitlement to health care by all and a less well expressed view of the obligation of individual health-care workers to provide such treatment. Such a consensus does not exist in the United States where health care is not freely available to all and professional bodies jealously cherish the right of doctors to act as independent contractors and to refuse to provide health care. Human immunodeficiency virus infection is slowly altering this perception with many States enacting anti-discriminatory legislation. The other fascinating aspect of this collection of papers is a thought- provoking review of the obligations and opportunities of researchers in the Third World. The changes in ethics occurring in different social and cultural situations are clearly expounded. As a lay reader I am always left vaguely disappointed that this sort of book does not provide a few simple rules which would guide me in day-to- day ethical decisions. I am, however, reassured when I discover that people who have made the study of ethics their lifetime's work face the same difficulties. This book is a fascinating historical account of the ethical dilemmas produced by the AIDS epidemic and makes a thought- provoking change from the average textbook, although it is rather expensive at £32. BRIAN GAZZARD, Consultant Physician and AIDS Co-ordinator, Westminster Hospital, Dean Ryle Street, Horseferry Road, London SWIP 2AP. Family Rights: Family Law and Medical Advance Edited by Elaine Sutherland and Alexander McCall Smith, 135 pages, Edinburgh, 1991, Edinburgh Press, £25.00. o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .1 8 .2 .1 0 8 o n 1 Ju n e 1 9 9 2 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_cx3pcy3rcndyfbyt5tuyhtyhkm	----	Journal of Applied Psychology 2001, Vol. 86, No. 3, 425-445 Copyright 2001 by the American Psychological Association, Inc. 0021-9010A)1/$5.00 DOI: 10.1037//0021-9010.86.3.425 Justice at the Millennium: A Meta-Analytic Review of 25 Years of Organizational Justice Research Jason A. Colquitt University of Florida Donald E. Conlon Michigan State University Michael J. Wesson and Christopher O. L. H. Porter Texas A&M University K. Yee Ng Michigan State University The field of organizational justice continues to be marked by several important research questions, including the size of relationships among justice dimensions, the relative importance of different justice criteria, and the unique effects of justice dimensions on key outcomes. To address such questions, the authors conducted a meta-analytic review of 183 justice studies. The results suggest that although different justice dimensions are moderately to highly related, they contribute incremental variance explained in fairness perceptions. The results also illustrate the overall and unique relationships among distributive, procedural, interpersonal, and informational justice and several organizational outcomes (e.g., job satisfaction, organizational commitment, evaluation of authority, organizational citizenship behavior, withdrawal, performance). These findings are reviewed in terms of their implications for future research on organizational justice. The study of justice or fairness has been a topic of philosophical interest that extends back at least as far as Plato and Socrates (Ryan, 1993). Colloquially, the term justice is used to connote "oughtness" or "righteousness." Under the purview of ethics, an act can be defined as just through comparison with a prevailing philosophical system. Unfortunately, often there is no agreement on what that philosophical system should be. For example, Aris- totle (reprinted in Frost, 1972) noted that people in different roles will advocate different justice rules, arguing that "the democrats are for freedom, oligarchs for wealth, others for nobleness of birth" (p. 136; see also Pillutla & Murnighan, 1999). In research in the organizational sciences, justice is considered to be socially constructed. That is, an act is defined as just if most individuals perceive it to be so on the basis of empirical research (Cropanzano & Greenberg, 1997). Thus, "what is fair" is derived from past research linking objective facets of decision making to subjective perceptions of fairness. In particular, justice in organi- zational settings can be described as focusing on the antecedents and consequences of two types of subjective perceptions: (a) the fairness of outcome distributions or allocations and (b) the fairness of the procedures used to determine outcome distributions or allocations. These forms of justice are typically referred to as Jason A. Colquitt, Department of Management, University of Florida; Donald E. Conlon and K. Yee Ng, Department of Management, Michigan State University, Michael J. Wesson and Christopher O. L. H. Porter, Department of Management, Texas A&M University. We thank George Barnekov and Yumi Eto for their assistance in gathering the articles covered in this review. Correspondence concerning this article should be addressed to Jason A. Colquitt, Warrington College of Business Administration, Department of Management, University of Florida, P.O. Box 117165, Gainesville, Florida 32611-7165. Electronic mail may be sent to colquitt@ufl.edu. distributive justice (Adams, 1965; Deutsch, 1975; Homans, 1961; Leventhal, 1976) and procedural justice (Leventhal, 1980; Lev- enthal, Karuza, & Fry, 1980; Thibaut & Walker, 1975). Efforts to explain the impact of justice on effective organiza- tional functioning have come under the rubric of organizational justice research (Greenberg, 1987b, 1990b). Greenberg (1990b) described organizational justice as a literature "grown around attempts to describe and explain the role of fairness as a consid- eration in the workplace" (p. 400). This literature includes both field and laboratory research, and organizational justice has been among the most frequently researched topics in industrial- organizational psychology, human resource management, and or- ganizational behavior over the last decade (Cropanzano & Green- berg, 1997). As interest in organizational justice has proliferated, so too have the theoretical approaches used to study it, particularly in relation to procedural justice. These approaches each propose a different way of conceptualizing justice, from the provision of process control (Thibaut & Walker, 1975)' to a focus on consistency (Leventhal, 1980; Leventhal et al., 1980) and an examination of interpersonal treatment (Bies & Moag, 1986). In addition, a large number of studies have sought to link justice perceptions to a variety of organizational outcomes, including job satisfaction, or- ganizational commitment, withdrawal, and organizational citizen- ship behavior. Because of this diversity in theoretical approach and construct focus, organizational justice is a field in need of integration. There have been a number of narrative reviews that have sought to achieve such integration (e.g., Cropanzano & Greenberg, 1997; Folger & Cropanzano, 1998; Lind & Tyler, 1988; Greenberg, 1987b, 1990b). However, important questions remain, including the following: How highly related are the different dimensions of organizational justice, and can they be empirically distinguished 425 426 COLQUITT, CONLON, WESSON, PORTER, AND NG from one another? Have the different ways of conceptualizing justice improved our ability to create perceptions of fairness? and What are the relationships between different organizational justice dimensions and important outcomes relevant to organizations? The first question deals with issues of construct discrimination (i.e., to what extent are constructs distinct from one another?). The second question deals with what Greenberg (1987b) called proactive re- search (i.e., research devoted to creating perceptions of fairness). The last question deals with what Greenberg (1987b) called reac- tive research (i.e., research devoted to understanding how individ- uals react to fair or unfair treatment). The purpose of this study was to conduct a comprehensive, meta-analytic review of the existing literature on organizational justice. To our knowledge, a meta-analysis has never been con- ducted in the organizational justice literature, even though meta- analysis has several important strengths relative to traditional narrative reviews (Hunter & Schmidt, 1990). First, meta-analysis is a more powerful summarizing tool because it yields a quantita- tive population value for a relationship of interest. Second, meta- analysis typically includes more studies than narrative reviews and is therefore less susceptible to biases based on study inclusion. Third, meta-analysis allows the reviewer to understand why rela- tionships in the literature vary as a function of sampling error, measurement error, and moderator variables. These strengths make meta-analysis an effective way of examining the three types of questions just listed. We conducted meta-analyses on all articles in the organizational justice literature published since 1975. We chose 1975 as our starting date because this is when Thibaut and Walker introduced the procedural justice construct, which allowed for the compara- tive study of the influence of multiple dimensions of justice. That year also marks, approximately, the time when justice researchers began integrating fairness concerns with outcomes relevant to organizations (e.g., job satisfaction and organizational commit- ment). Thus, as we reach the millennium, this review covers a quarter century of academic research. Our analyses dealt with all three types of questions raised earlier: construct discrimination issues, proactive research issues, and reactive research issues. In total, we relied on 120 separate meta-analyses, along with the emerging technique of meta-analytic regression analysis (Viswes- varan & Ones, 1995), to explore the three types of questions. We provide a brief review of the organizational justice literature before reviewing the specific research questions explored in this article. A Brief Review of the Organizational Justice Literature Introduction of Distributive Justice Before 1975, the study of justice was primarily concerned with distributive justice. Much of this research was derived from initial work conducted by Adams (1965), who used a social exchange theory framework to evaluate fairness. According to Adams, what people were concerned about was not the absolute level of out- comes per se but whether those outcomes were fair. Adams sug- gested that one way to determine whether an outcome was fair was to calculate the ratio of one's contributions or "inputs" (e.g., education, intelligence, and experience) to one's outcome and then compare that ratio with that of a comparison other. Although the comparison of the two input-outcome ratios gives Adams's equity theory an "objective" component, he was clear that this process was completely subjective. Whereas Adams's theory advocated the use of an equity rule to determine fairness, several other allocation rules have also been identified, such as equality and need (e.g., Leventhal, 1976). Studies have shown that different contexts (e.g., work vs. family), different organizational goals (e.g., group harmony vs. productiv- ity), and different personal motives (e.g., self-interest motives vs. altruistic motives) can activate the use or primacy of certain allocation rules (Deutsch, 1975). Nevertheless, all of the allocation standards have as their goal the achievement of distributive justice; they merely attempt to create it through the use of different rules. Introduction of Procedural Justice With the publication of their book summarizing disputant reac- tions to legal procedures, Thibaut and Walker (1975) introduced the study of process to the literature on justice. Thibaut and Walker (1975) viewed third-party dispute resolution procedures such as mediation and arbitration as having both a process stage and a decision stage. They referred to the amount of influence disputants had in each stage as evidence of process control and decision control, respectively. Their research suggested that disputants were willing to give up control in the decision stage as long as they retained control in the process stage. Stated differently, disputants viewed the procedure as fair if they perceived that they had process control (i.e., control over the presentation of their arguments and sufficient time to present their case). This process control effect is often referred to as the "fair process effect" or "voice" effect (e.g., Folger, 1977; Lind & Tyler, 1988), and it is one of the most replicated findings in the justice literature. Indeed, Thibaut and Walker (1975) virtually equated process control with procedural justice (Folger & Cropanzano, 1998). Although Thibaut and Walker (1975) introduced the concept of procedural justice, their work focused primarily on disputant re- actions to legal procedures. Although a focus on justice and law continues to be of interest to scholars (e.g., Tyler, 1990), Leventhal and colleagues can be credited for extending the notion of proce- dural justice into nonlegal contexts such as organizational settings (Leventhal, 1980; Leventhal et al., 1980). In doing so, Leventhal and colleagues also broadened the list of determinants of proce- dural justice far beyond the concept of process control. Leventhal's theory of procedural justice judgments focused on six criteria that a procedure should meet if it is to be perceived as fair. Procedures should (a) be applied consistently across people and across time, (b) be free from bias (e.g., ensuring that a third party has no vested interest in a particular settlement), (c) ensure that accurate infor- mation is collected and used in making decisions, (d) have some mechanism to correct flawed or inaccurate decisions, (e) conform to personal or prevailing standards of ethics or morality, and (f) ensure that the opinions of various groups affected by the decision have been taken into account. Introduction of Interactional Justice Bies and Moag (1986) introduced the most recent advance in the justice literature by focusing attention on the importance of the quality of the interpersonal treatment people receive when proce- dures are implemented. Bies and Moag (1986) referred to these META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 427 aspects of justice as "interactional justice." More recently, inter- actional justice has come to be seen as consisting of two specific types of interpersonal treatment (e.g., Greenberg, 1990a, 1993b). The first, labeled interpersonal justice, reflects the degree to which people are treated with politeness, dignity, and respect by author- ities or third parties involved in executing procedures or determin- ing outcomes. The second, labeled informational justice, focuses on the explanations provided to people that convey information about why procedures were used in a certain way or why outcomes were distributed in a certain fashion. Questions Permeating the Organizational Justice Literature The proliferation of studies on organizational justice has cer- tainly enhanced the visibility of fairness concerns, but the large number of studies and the differing theoretical perspectives raise the concern that justice scholars may be "losing the forest for the trees." In other words, despite the large accumulation of findings, many central questions remain either unaddressed or unclear. Until such questions are addressed, theory development in the organi- zational justice literature will continue to be hindered. Our meta- analytic review examines some of these central questions, with specific areas of focus discussed in the sections to follow. Construct Discrimination Questions Perhaps the oldest debate in the justice literature concerns the independence of procedural and distributive justice. Some studies have revealed extremely high correlations between the two justice dimensions, suggesting that they may not be distinct in the minds of many people (Folger, 1987). For example, Sweeney and Mc- Farlin (1997) found an uncorrected correlation of .72 between procedural and distributive justice in a study of attitudes among federal employees. Welbourne, Balkin, and Gomez-Mejia (1995) found an uncorrected correlation of .74 in a study of employees in two different companies, one a high-technology firm and the other a consumer products firm. Possibly as a result of such findings, Martocchio and Judge (1995) conducted a study of disciplinary decisions in which no effort was made to separate procedural and distributive justice. Rather, the authors examined the effects of "organizational justice." Such high correlations are congruent with theoretical arguments made by Cropanzano and Ambrose (2001). These authors have argued that the procedural justice-distributive justice distinction, although necessary and valuable, may sometimes be overempha- sized. Their "monistic perspective" notes that procedural evalua- tions are based in large part on outcomes attained (Thibaut & Walker, 1975) and that the same event can be seen as a process in one context and an outcome in another. For example, reorganizing a performance evaluation system so that it provides employees more process control can be termed a fair outcome, even though process control is a procedural construct. The construct discrimination concern applies to an even greater degree to procedural and interactional justice. Bies and Moag (1986) originally declared interactional justice to be a third type of justice. They argued that people draw on interactional justice perceptions when deciding how to react to authority figures (i.e., bosses and supervisors), whereas procedural justice perceptions are used to decide how to react to the overall organization. How- ever, Bies retracted the position that interactional justice was a third type of justice in a subsequent review (Tyler & Bies, 1990). The author's retraction of his earlier stance has become widely held, as one recent narrative review treated interactional justice as a social form of procedural justice (Cropanzano & Greenberg, 1997). In keeping with this view, many researchers have opera- tionalized procedural justice by measuring process control or Lev- enthal criteria, along with interactional justice, in one combined scale (e.g., Brockner, Siegel, Daly, & Martin, 1997; Brockner, Wiesenfeld, & Martin, 1995; Folger & Konovsky, 1989; Konovsky & Folger, 1991; Mansour-Cole & Scott, 1998; Skarlicki & Latham, 1997). This practice seems to suggest that the inter- personal implementation of procedures need not (or cannot) be separated from their structural aspects. However, other research has renewed the debate surrounding the distinctiveness of procedural and interactional justice. Studies that have examined the two constructs separately have shown that they have different correlates or independent effects, or both (e.g., Barling & Phillips, 1993; Blader & Tyler, 2000; Cropanzano & Prehar, 1999; Masterson, Lewis, Goldman, & Taylor, 2000; Moye, Masterson, & Bartol, 1997; Skarlicki & Folger, 1997). Blader and Tyler (2000), in a survey of 404 U.S. workers, found that system- originating procedural factors and leader-originating procedural factors remained distinct in a confirmatory factor analysis. Master- son, Lewis, et al. (2000) drew on social exchange theory to show that procedural and interactional justice affected other variables through different intervening mechanisms. Specifically, proce- dural justice affected other variables by altering perceived organi- zational support perceptions; interactional justice affected other variables by altering leader-member exchange perceptions (Graen & Scandura, 1987). Even assuming that interactional justice can and should be distinguished from procedural justice, another question is whether the interpersonal and informational facets of the construct merit conceptual separation. Greenberg (1993b) suggested that interper- sonal and informational justice should be separated because they are logically distinct and have been shown to have independent effects (e.g., Greenberg, 1993c, 1994). Interpersonal justice acts primarily to alter reactions to decision outcomes, because sensi- tivity can make people feel better about an unfavorable outcome. Informational justice acts primarily to alter reactions to proce- dures, in that explanations provide the information needed to evaluate structural aspects of the process. Some recent work has attempted to address the construct dis- crimination questions raised earlier. Colquitt (2001) developed measures of distributive, procedural, informational, and interper- sonal justice based on the seminal introductions of each construct (Bies & Moag, 1986; Leventhal, 1976, 1980; Leventhal et al., 1980; Thibaut & Walker, 1975) and validated them in both a university and a field setting. Colquitt found that a four-factor confirmatory model provided the best fit to the data and further showed that the four justice dimensions predicted different out- comes. Thus, although some progress is being made, the literature on organizational justice is still marked by a debate over whether the domain includes one, two, three, or four dimensions of justice. This is the subject of the first research question addressed in our meta-analytic review. 428 COLQUITT, CONLON, WESSON, PORTER, AND NG Research Question 1: How highly related are the different dimensions of organizational justice, and can they be empirically distinguished from one another? Proactive Research Questions The history of research devoted to understanding what promotes perceptions of fairness has been marked by increasing complexity in operationalization as new and different conceptualizations have been introduced over the years. Thibaut and Walker (1975) ini- tially assumed that perceptions of procedural fairness were driven by process control. Leventhal and colleagues (Leventhal, 1980; Leventhal et al., 1980), on the other hand, eschewed the parsimo- nious approach offered by Thibaut and Walker and instead argued that fairness perceptions were created by adherence to six different criteria. Bies and Moag (1986) further suggested that fairness perceptions were created by the proper enactment of procedures in terms of interpersonal and informational justice. Such additional complexity is warranted if new approaches contribute incrementally to our understanding of how to foster perceptions of procedural fairness. Unfortunately, at present we do not actually know whether such incremental contributions exist. This is because so many studies of procedural justice collapse process control, Leventhal criteria, and interpersonal and informa- tional justice into a single variable (e.g., Brockner et al., 1995, 1997; Folger & Konovsky, 1989; Konovsky & Folger, 1991; Mansour-Cole & Scott, 1998; Skarlicki & Latham, 1997). This makes it impossible to gauge the relative influence of each element on procedural fairness perceptions. Still other studies assess only one conceptualization of procedural justice, again making it im- possible to assess the merits of different approaches. Moreover, it is well accepted that people judge procedures as more fair when they result in fair or favorable outcomes (Lind & Tyler, 1988; Thibaut & Walker, 1975). Despite this, many studies of procedural justice do not also examine distributive justice. Other studies do examine distributive justice but use it only in analyses separate from procedural justice. As a result, we cannot even be sure that process control, Leventhal criteria, and so forth explain variance in procedural fairness perceptions beyond distributive justice. If the operationalizations of procedural justice contribute little to procedural fairness perceptions beyond simple outcome fairness, then the focus on additional conceptualizations has been unwarranted. Thus, in terms of creating procedural fairness perceptions, it is unclear to what extent new conceptualizations of procedural jus- tice (including the relatively recent introductions of interpersonal and informational justice) have contributed to our understanding. Nor is it clear how important they are beyond the fairness of outcome distributions. This is the subject of our next two research questions. Research Question 2: Have the additional conceptualizations of pro- cedural justice developed over time (including interpersonal and in- formational justice) contributed incremental variance explained in procedural fairness perceptions? Research Question 3: Do those conceptualizations contribute incre- mental variance explained in procedural fairness perceptions beyond the effects of distributive justice? Reactive Research Questions Of course, one of the reasons scholars study justice is the belief that enhanced fairness perceptions can improve outcomes relevant to organizations (e.g., organizational commitment, job satisfaction, and performance). One goal of our meta-analytic review is to help develop some consensus regarding the relationships between di- mensions of justice and key outcomes. In particular, we evaluate the predictive ability of three different models that attempt to explain relationships between justice dimensions and important outcomes. These three models are the distributive dominance model suggested by Leventhal (1980), the two-factor model sug- gested by Sweeney and McFarlin (1993), and the agent-system model suggested by Bies and Moag (1986). The relative predictive power of procedural and distributive justice has been of long-standing concern in the justice literature. An interesting aspect of Leventhal's (1980) work is that he ex- plicitly considered the impact of both procedural and distributive justice and argued that distributive justice is generally more salient than procedural justice. He further argued that distributive justice judgments are likely to be more influential than procedural justice judgments in determining "overall fairness judgments" (Leventhal, 1980, p. 133; Lind & Tyler, 1988). Consistent with this argument, Conlon (1993) found that distributive justice explained more vari- ance in grievant evaluations of authorities (an appeal board) than did procedural justice. These works support a strong, parsimonious prediction that distributive justice will dominate (i.e., explain more variance than) other forms of justice. However, some prior research and theory have questioned this thesis. In perhaps the first empirical study to explicitly link mul- tiple dimensions of justice to organizational outcomes, Alexander and Ruderman (1987) surveyed more than 2,000 federal employ- ees, measuring procedural and distributive justice along with six outcomes. Their regression analyses showed that justice measures affected five of six organizational outcomes and that, for four of these five outcomes, procedural justice had stronger relationships than distributive justice. More recently, scholars have argued that distributive justice is likely to exert greater influence on more specific, person- referenced outcomes such as satisfaction with a pay raise or performance evaluation. In contrast, procedural justice is likely to exert greater influence on more general evaluations of systems and authorities (Greenberg, 1990b; Lind & Tyler, 1988). Consistent with this prediction, McFarlin and Sweeney (1992) found that distributive justice was a more important predictor of what they termed two "personal outcomes" (pay satisfaction and job satis- faction) and that procedural justice was a more important predictor of two "organizational outcomes" (organizational commitment and subordinate's evaluation of supervisor). Sweeney and McFarlin (1993) conducted perhaps the most comprehensive test of this notion. They contrasted four models expressing the relationship between procedural and distributive justice and two outcomes (pay satisfaction and organizational commitment). The idea that procedural justice predicts more system-referenced outcomes and distributive justice predicts more person-referenced outcomes was termed in their article the "two- factor model." They found that the two-factor model fit their data better than three competing models. Thus, drawing on the results META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 429 of these studies, we examine the two-factor model's prediction of differing effects for procedural and distributive justice. Finally, Bies and Moag's (1986) focus on interpersonal treat- ment suggests a third approach to explaining organizational out- comes, one that explicitly examines the role of interpersonal and informational justice in addition to procedural justice. Recall that Bies and Moag (1986) originally argued that individuals draw on interpersonal and informational justice perceptions when deciding how to react to authority figures (i.e., bosses and supervisors) and draw on procedural justice perceptions when deciding how to react to the overall organization. Building on this work, Masterson, Lewis, et al. (2000) drew on social exchange theory (Blau, 1964) and reasoned that individuals in organizations were involved in two types of exchange relationships: exchanges with their imme- diate supervisor and exchanges with the larger organization. In a field study, the authors showed that interactional justice predicted supervisor-referenced outcomes (e.g., citizenship behaviors di- rected at supervisor and supervisor rating of performance), whereas procedural justice predicted organization-referenced out- comes (e.g., citizenship behaviors directed at the organization and organizational commitment). Thus, our third reactive model, the agent-system model, reflects the assertion that interpersonal and informational justice will be more powerful predictors of agent- referenced outcomes than system-referenced outcomes. The distributive dominance model, the two-factor model, and the agent-system model are explored in the following set of research questions. Research Question 4: What are the relationships between distributive justice and important organizational outcomes? Research Question 5: What are the relationships between procedural justice and important organizational outcomes? Research Question 6: What are the relationships between interper- sonal and informational justice and important organizational outcomes? Research Question 7: If considered simultaneously, what are the unique effects of these justice dimensions on key outcomes, and which of the three reactive models receives the most support? Our review focuses on several different outcomes representing those most commonly examined in the organizational justice lit- erature. In the following sections, we briefly review each type of outcome. Outcome satisfaction. Many justice studies have measured satisfaction with the outcomes of a decision-making process, such as pay, promotions, and performance evaluations. Given the logic presented earlier, we expect that distributive justice judgments will be a better predictor of outcome satisfaction than will procedural justice or interpersonal and informational justice. This pattern has been empirically supported through the use of pay satisfaction and satisfaction with job restructuring (e.g., Folger & Konovsky, 1989; Lowe & Vodanovich, 1995; Sweeney & McFarlin, 1993), and it is consistent with both the distributive dominance and two-factor models. Job satisfaction. Many studies also ask about employees' sat- isfaction with their jobs in general. McFarlin and Sweeney (1992) showed that distributive justice was a more powerful predictor of job satisfaction than was procedural justice. However, this does not seem to fit the two-factor theory argument that procedural justice predicts system-referenced outcomes, whereas distributive justice predicts person-referenced outcomes. Job satisfaction is a more general, multifaceted, and global response than is outcome satisfaction. Consistent with this reasoning, other studies have shown high correlations between procedural justice and job satis- faction (e.g., Mossholder, Bennett, & Martin, 1998; Wesolowski & Mossholder, 1997). In addition, Masterson, Lewis, et al. (2000) showed procedural justice to be a stronger predictor of job satis- faction than interactional justice, although both had significant independent effects. These results are consistent with the two- factor model and the agent-system model. Organizational commitment. Organizational commitment rep- resents a global, systemic reaction that people have to the company for which they work. Most measures of organizational commit- ment assess affective commitment, the degree to which employees identify with the company and make the company's goals their own (Allen & Meyer, 1990). Prior work by Tyler (e.g., Tyler, 1990) argues that procedural justice has stronger relationships with support for institutions than does distributive justice. This is also consistent with the two-factor model and has been supported in several studies (e.g., Folger & Konovsky, 1989; McFarlin & Sweeney, 1992; Sweeney & McFarlin, 1993). However, we should note that several studies have instead supported the distributive dominance model. For example, Lowe and Vodanovich (1995) found a stronger relationship for distributive justice and organiza- tional commitment than for procedural justice, as did Greenberg (1994). Other results support the agent-system model, in which procedural justice is a stronger predictor of organizational com- mitment than interactional justice (Masterson, Lewis, et al., 2000). Trust. Trust has recently emerged as a popular topic in orga- nizational research (as evidenced by the 1998 Academy of Man- agement Review special issue devoted to the topic). Tyler (1989) argued that trust in decision makers or authorities is important because these people typically have considerable discretion in terms of allocating rewards and resources. Whereas Tyler (1989) initially conceptualized trust in relation to a third party or an authority, Folger and Cropanzano (1998) made the point that trust reactions are relevant to any person with whom one is interdepen- dent. Given the centrality of trust in theorizing on procedural justice, we would expect to find stronger relationships between trust and procedural justice than between trust and distributive justice, consistent with past research (e.g., Alexander & Ruder- man, 1987; Konovsky & Pugh, 1994). However, given that trust is usually referenced to a particular person, the agent-system model would predict that interpersonal and informational justice are even better predictors of this outcome than procedural justice. Evaluation of authority. A number of studies of third-party dispute resolution procedures have asked disputants to make eval- uations of the third party (Lind & Tyler, 1988). Still other work in organizations asks respondents to rate the acceptability of their supervisors or management in more general terms. Much of the research on evaluation of authorities comes from work merging psychology and political science (e.g., Tyler, 1990). Tyler's (1990) work, along with the two-factor model, would suggest that we should find stronger relationships between procedural justice and evaluation of authorities than between distributive justice and evaluation of authorities. However, as with organizational com- mitment, this prediction has been supported in multiple studies (e.g., Ball, Trevino, & Sims, 1993; McFarlin & Sweeney, 1992) 430 COLQUITT, CONLON, WESSON, PORTER, AND NG and refuted in multiple studies (e.g., Conlon, 1993; Taylor, Tracy, Renard, Harrison, & Carroll, 1995). In addition, the agent-system model would predict that interpersonal and informational justice are better predictors of evaluation of authority in cases in which the authority in question is one's leader as opposed to management in general. For this reason, our examination of the reactive models distinguishes between agent-referenced evaluations of authority (e.g., focusing on one's supervisor) and system-referenced evalu- ations of authority (e.g., focusing on management in general). Organizational citizenship behaviors (OCBs). Organ (1990) defined OCBs as behaviors that are discretionary and not explicitly rewarded but that can help improve organizational functioning. Organ (1990) posited that OCBs are driven largely by fairness perceptions. He suggested that people in organizations assume, at the outset, a social exchange relationship. This expectation con- tinues until unfairness is evidenced, at which time the relationship is reinterpreted as economic rather than social. Research on OCBs has repeatedly demonstrated stronger linkages between procedural justice and OCBs than between distributive justice and OCBs (Ball, Trevino, & Sims, 1994; Moorman, 1991). For example, Moorman (1991) reported that procedural justice influenced four of five OCB dimensions, whereas distributive justice failed to influence any dimensions. Skarlicki and Latham (1996) even showed that training supervisors on procedural justice principles was capable of improving OCB levels. To the extent that OCBs were measured in relation to supervisors rather than the organiza- tion as a whole, we would expect interpersonal and informational justice to be stronger predictors, consistent with the agent-system model and the results of Masterson, Lewis, et al. (2000). Thus, our examination of the reactive models distinguishes between agent- referenced OCBs and system-referenced OCBs. Following Wil- liams and Anderson (1991), we refer to the former as individual OCBs (OCBIs) and the latter as organization OCBs (OCBOs). Withdrawal. Behaviors and behavioral intentions such as ab- senteeism, turnover, and neglect are often subsumed under the heading of job withdrawal. Although withdrawal is a relatively common outcome in the justice literature, it has not been examined in the context of the two-factor model. Withdrawal can occur as a result of a thorough, reasoned evaluation of the organization as a system or on a more "spur of the moment" basis in reaction to an unsatisfactory outcome or poor interpersonal treatment by an au- thority. However, because employees who withdraw are typically leaving the overall organization, we would argue that withdrawal is system referenced in nature, similar to organizational commit- ment. Unfortunately, the literature linking different justice dimen- sions to withdrawal is somewhat muddied, with some studies showing that distributive justice influences job withdrawal (e.g., Horn, Griffeth, & Sellaro, 1984) and other studies revealing effects for procedural justice (e.g., Dailey & Kirk, 1992). Moreover, Masterson, Lewis, et al. (2000) showed that procedural justice had more of an impact on withdrawal than interactional justice. Thus, past research has, at various times, supported the distributive dominance model, the two-factor model, and the agent-system model. Negative reactions. Some recent justice research has looked at the relationship between perceived unfairness and a variety of negative reactions, such as employee theft (e.g., Greenberg, 1990a, 1993c) and organizational retaliatory behaviors (ORBs; Skarlicki & Folger, 1997; Skarlicki, Folger, & Tesluk, 1999). As with withdrawal, negative reactions have not been examined from the standpoint of the two-factor model. Whereas negative reactions can occur because of purely cognitive evaluations of the merits of the organization as a whole or as strong emotional reactions to one's own treatment, reactions such as theft and ORBs clearly damage the larger organizational system. However, Skarlicki and Folger (1997) found that ORBs had approximately equal correla- tions with distributive, procedural, and interactional justice, with interactional justice having the strongest unique effect. To the extent that ORBs are system-referenced outcomes, this provides little support for any of the three reactive models. Performance. Perhaps the most unclear of all relationships in the justice literature is the relationship between procedural justice and performance. For example, Barley and Lind (1987) found a relationship between procedural fairness judgments and perfor- mance in a laboratory study but not in a field study. Kanfer, Sawyer, Barley, and Lind (1987) found a negative correlation between procedural justice and performance. Keller and Dansereau (1995) found a moderately strong relationship between procedural justice and performance as measured by performance appraisal records. Other studies have linked distributive justice to perfor- mance, consistent with equity theory's predictions (e.g., Ball et al., 1994; Griffeth, Vecchio, & Logan, 1989). It is difficult to apply the logic of the agent-system and two-factor models to the prediction of performance. On the one hand, performance supports, and is often measured by, agents such as one's supervisor. For this reason, Masterson, Lewis, et al. (2000) predicted, and found, stronger interactional justice effects on performance, consistent with the agent-system model. On the other hand, performance reflects members' contributions to organizational goals (Borman, 1991), giving it a system-referenced character and suggesting that procedural justice should be its primary predictor. Different Operationalizations of Procedural Justice Of course, the relative strength of the correlations between the justice dimensions and the outcomes just described may depend on how procedural justice is operationalized. For example, some studies assess only process control but label it procedural justice (e.g., Joy & Witt, 1992). Others use a variable that is composed only of Leventhal criteria, labeling that procedural justice (e.g., Konovsky & Folger, 1991). Still others measure informational or interpersonal justice as the process variable (e.g., Greenberg, 1990a). Another common operationalization is measuring proce- dural fairness perceptions (e.g., Bies, Martin, & Brockner, 1993; Colquitt & Chertkoff, 1996; Gilliland, 1994), which is what Lind and Tyler (1988) labeled a direct measure (i.e., a measure that directly asks respondents "how fair" a procedure is). Finally, another common operationalization is an indirect combination measure (Lind & Tyler, 1988). Such a measure asks respondents about some combination of process control, Leventhal criteria, and interpersonal or informational justice, labeling that procedural justice (e.g., Brockner et al., 1995, 1997; Folger & Konovsky, 1989; Konovsky & Folger, 1991; Mansour-Cole & Scott, 1998; Skarlicki & Latham, 1997). Presumably, those who use such measures subscribe to the view that interpersonal and informa- tional justice are facets of procedural justice, as with process control or Leventhal criteria. META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 431 Our examination of the relative strength of the correlations between the different dimensions of justice and the outcomes described uses the broadest conceptualization of procedural justice by combining all of its potential operationalizations. However, our review also presents analyses broken down by operationalization. One strength of meta-analysis is that it allows a researcher to examine the degree to which a relationship varies across a partic- ular moderator variable. Our review examines operationalization as a moderator variable, allowing us to see to what extent rela- tionships vary by how procedural justice is conceptualized. For instance, one might expect that procedural fairness perceptions will yield the highest relationships with organizational outcomes, in that fairness perceptions could be construed as the intervening mechanism linking process control, Leventhal criteria, and so forth to outcomes. Conversely, one might expect indirect combination measures to yield the highest relationships, because they capture more of the conceptual domain of organizational justice. Method We conducted a meta-analytic review of the literature on organizational justice to examine the questions discussed earlier. In the following sec- tions, we review the methods for this review. Literature Search We first performed a literature search of the PsycINFO database for the years 1975 to 1999. Our starting date coincided with the year in which Thibaut and Walker (1975) introduced the procedural justice construct. Given that a major goal of this review was to examine the relative impact of multiple dimensions of justice, articles published before 1975 would be less useful. Such articles were typically proactive distributive justice arti- cles that examined how individuals allocate rewards across different situ- ations and did not normally assess any of the outcomes examined in this review. Moreover, from a practical perspective, articles published before 1975 rarely reported the types of statistics included in a meta-analysis. We conducted our literature search using the following keywords: procedural fairness, procedural justice, distributive fairness, distributive justice, inter- actional justice, interpersonal treatment, and equity. In addition to the PsycINFO search, we conducted an author search of 10 of the most published authors in the organizational justice literature. Any article that included a relationship in the meta-analysis, whether it was a single justice-outcome relationship or a relationship between two dimensions of justice, was relevant. The search yielded 300 articles. Of these 300 articles, 76 did not include a relationship in the meta-analysis and were deemed not relevant. For example, Tyler, Lind, Ohbuchi, Sugawara, and Huo (1998) examined the effects of ''relational judgments" (an aggregate measure of procedural, interpersonal, and informational justice judgments) on the willingness of disputants to accept a third-party solution in a conflict resolution setting. Bazerman, Schroth, Shah, Diekmann, and Tenbrunsel (1994) examined the effects of justice on job search decisions. Such studies did not focus on one of the nine outcome variables included in our review or did not include a relationship between different dimensions of justice. Another 41 studies included a relationship in the meta-analysis but could not be coded because of the way in which the results were presented. Meta-analysis requires zero-order effect size information, whether in the form of correlations, F statistics, t statistics, or even means and standard deviations of a dependent variable across multiple experimental conditions. Articles that present only partial or semipartial unique, independent effects cannot be coded unless the independent variables are uncorrelated, as in most experiments in which conditions are manipulated orthogonal to one another. Several articles uncovered in our literature review could not be coded because they presented only multiple regression or structural equa- tion modeling results. Examples included several of Tyler's investigations of the "relational" or "group-value" model of justice (e.g., Tyler, 1989, 1994; Tyler, Degoey, & Smith, 1996). Other articles could not be coded because they presented incomplete results (e.g., only labeling F statistics in an analysis of variance as significant or not significant) or combined procedural and distributive justice into a larger justice variable (e.g., Martocchio & Judge, 1995). The final number of studies included in the review was 183. These studies are marked with an asterisk in the References section. We should note that this number included both laboratory studies and field studies; the term organizational justice in no way implies that the research must occur in a field setting but indicates only that the research must be relevant to the role of fairness in the workplace (Greenberg, 1990b). Meta-Analysis Strategy Meta-analysis is a technique that allows individual study results to be aggregated while correcting for various artifacts that can bias relationship estimates. Our meta-analyses were conducted with Hunter and Schmidt's (1990) procedures. Inputs into the meta-analyses included zero-order effect sizes in the form of correlations, along with sample sizes and reliability information. In instances in which articles reported statistics other than correlations (e.g., F statistics, / statistics, or means and standard devia- tions), results were transformed into correlations through the formulas provided by Hunter and Schmidt (1990). Because of the subjectivity and judgment calls inherent in meta-analytic efforts, all coding of meta-analytic data was performed by author dyads formed from the study's five authors. In cases in which a variable was assessed with multiple measures, we acted in accordance with Hunter and Schmidt's (1990) recommendations for conceptual replication (see pp. 451-463). Specifically, when multiple measures were highly correlated and seemed to each be construct valid, the correlations were averaged together (see Hunter & Schmidt, 1990, p. 457). Thus, one composite correlation was formed in lieu of multiple correla- tions, preventing a study that involved multiple measures from being "double counted." This technique improves both reliability and construct validity. We should also note that, when an article reported results from multiple independent samples, each correlation was included in the meta- analysis (see Hunter & Schmidt, 1990, pp. 463-466, for a discussion of these issues). Meta-analysis requires that each observed correlation from a given study be weighted by that study's sample size to provide a weighted mean estimate of the population correlation. The standard deviation of this estimate across the multiple studies is also computed. This variation is composed of true variation in the population value as well as variation due to artifacts such as sampling error and measurement error. To provide a more accurate estimate of each population correlation and its variability, our analyses corrected for both sampling error and unreliability. However, because reliability information was not always available, the method of artifact-distribution meta-analysis was used (Hunter & Schmidt, 1990). For those studies that did not report reliability information for any given variable, that variable's weighted mean reliability based on all other studies was used to correct for measurement error. Meta-analysis results typically include both uncorrected (/•) and cor- rected (rc) estimates of the population correlation. The latter are corrected for unreliability in both variables. Also reported are the 95% confidence intervals for each population correlation. Confidence intervals are gener- ated with the standard error of the weighted mean correlation. They reflect the "extent to which sampling error remains in the estimate of a mean effect size" and are applied to estimates that have not been corrected for artifacts (Whitener, 1990, p. 316). If a confidence interval does not include the value of zero, that population correlation is judged to be "statistically significant." Also presented is the standard deviation of the population correlation (SDrc). This provides an index of the variation in the corrected population 432 COLQUITT, CONLON, WESSON, PORTER, AND NG values across the studies in our sample. One indication that moderators may be present in a given relationship is the case in which artifacts such as unreliability fail to account for a substantial portion of the variance in correlations. Thus, the percentage of variance explained by artifacts (Vm) is also presented. Hunter and Schmidt (1990) have suggested that, if artifacts fail to account for 75% of the variance in the correlations, moderators probably exist. Mathieu and Zajac (1990) and Horn, Caranikas- Walker, Prussia, and Griffeth (1992) amended the 75% criterion to 60% in cases in which range restriction is not one of the artifacts that is corrected for. We should note that the 60% rule only implies the existence of a moderator; it does not indicate what variable is acting as the moderator. Identifying the actual moderator variable requires coding potential mod- erators and then performing subgroup analyses to determine whether the population correlations vary across the subgroup boundaries. In our review, this entailed determining whether the population correlations varied across different operationalizations of procedural justice. Meta-Analytic Regression Strategy Many questions cannot be answered by a matrix of meta-analyzed correlations. For example, do Leventhal's (1980) justice criteria explain variance in procedural fairness perceptions beyond the effects of Thibaut and Walker's (1975) process control construct? Do procedural, distribu- tive, interpersonal, and informational justice each have independent effects on organizational commitment? Such questions require multiple regression to assess independent, semipartial effects. Fortunately, recent advances in meta-analytic regression have allowed researchers to combine the benefits of meta-analysis with the strengths of regression procedures (see Viswes- varan & Ones, 1995). Meta-analytic regression has been used in contexts such as training motivation (Colquitt, LePine, & Noe, 2000), leadership (Podsakoff, MacKenzie, & Bommer, 1996), turnover (Horn et al., 1992), and job performance (Schmidt, Hunter, & Outerbridge, 1986). In practice, there are some decision points that researchers using meta- analytic regression will encounter (Viswesvaran & Ones, 1995). First, many researchers will conduct regressions on correlation matrices that vary in sample size. This raises the question of what sample size to use when computing the standard errors associated with the regression weights. Potential solutions include using the smallest cell sample size or using the mean sample size. We chose to use the harmonic mean of the correlation matrix sample sizes, as opposed to the arithmetic mean (consistent with Viswesvaran & Ones, 1995). The formula for the harmonic mean is [MliW, + \IN2 + • • • + I/Ay], where k refers to the number of study correlations and N refers to the sample sizes of the studies. An inspection of the formula shows that the harmonic mean gives much less weight to substantially large individual study sample sizes, so it is always more conservative than the arithmetic mean (Viswesvaran & Ones, 1995). Note, however, that the sample size issue is not very critical to the current meta-analytic review. This is because the sample sizes for almost all of the cells of the correlation matrices are in the thousands, making even small effect sizes statistically significant, no matter what sample size option is used. Second, researchers must choose whether to use maximum-likelihood estimation (the choice of Horn et al., 1992), ordinary least squares (the choice of Colquitt et al., 2000, Podsakoff et al., 1996, and Schmidt et al., 1986), or some other method. We elected to use ordinary least squares estimation, consistent with Colquitt et al. (2000), Podsakoff et al. (1996), and Schmidt et al. (1986). Ordinary least squares assumptions are less restrictive than maximum likelihood, which assumes multivariate normal- ity. Maximum-likelihood estimation is also less optimal in instances in which the data are in the form of correlations rather than covariances (Cudeck, 1989). Given that meta-analysis results in correlational data, we believed that ordinary least squares would be more appropriate. Results Construct Discrimination Questions Research Question 1 concerned the magnitude of the relation- ships among the various organizational justice conceptualizations. Table 1 shows the correlations among process control, Leventhal criteria, interpersonal justice, informational justice, distributive justice, and procedural fairness perceptions. Cohen and Cohen (1983) classified correlations as high, moderate, or weak according to unconnected r values of .50, .30, and .10, respectively. Thus, Table 1 shows high correlations among the justice conceptualiza- tions, but not so high that they seem to be multiple indicators of one underlying construct. Process control and Leventhal criteria, the two original operationalizations of procedural justice, were highly correlated with each other (r = .50, rc = .67) and with procedural fairness perceptions (r = .41, rc = .51 and r = .53, rc = .68, respectively). However, the relationship between Leventhal criteria and procedural fairness perceptions was significantly stronger than the relationship between process control and proce- dural fairness perceptions, as evidenced by the fact that the two correlations' confidence intervals did not overlap. Table 1 also shows the correlations among the interactional justice dimensions. Interpersonal justice was highly related to informational justice (r = .57, rc = .66), although again not so highly that the two necessarily seem to be indicators of the same underlying construct. Interpersonal justice and informational jus- tice were also highly correlated with procedural fairness percep- tions (r = .56, rc = .63 and r = .51, rc = .58, respectively). These relationships were similar in magnitude to the process control and Leventhal relationships, although the interpersonal justice- procedural fairness relationship was significantly stronger than the process control-procedural fairness relationship. Interestingly, the relationships between interpersonal and infor- mational justice and procedural fairness perceptions were not significantly stronger than the relationship between distributive justice and procedural fairness perceptions (r = .48, rc = .57). This suggests that interpersonal and informational justice should be considered to be distinct from procedural justice, just as the case with distributive justice. The uncorrected correlation of .48 for distributive justice and procedural fairness perceptions may seem surprisingly low, given the many empirical articles that have reported uncorrected relationships in the .60s and .70s. To take a closer look at this relationship, Table 2 shows relationships be- tween distributive justice and every possible conceptualization of procedural justice, including interpersonal and informational jus- tice, to explore whether operationalization moderates the proce- dural justice-distributive justice relationship. The top row of Ta- ble 2, labeled "Broadly defined procedural justice," shows the procedural justice-distributive relationship in which all potential operationalizations, shown in the remaining rows, are considered together. The final row contains the "indirect combination mea- sure" operationalization discussed previously. Recall that indirect combination measures are those that assess some combination of process control, interpersonal or informational justice, and Lev- enthal variables. They are labeled indirect because they do not directly ask "how fair" something is (see Lind & Tyler, 1988). Combining all operationalizations, broadly defined procedural justice was strongly related to distributive justice (r = .56, rc = .67). The high standard deviation of the population correlation META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 433 <D 1 cu .CJ £3 3 1 .g a Rj c Q ^ O 2̂ •S e .jv "c ! c o U S S $i 5" 00c 1 .§• ^ic •2 Ŝ ft: vn •t c*~, (N — I?"? Q ̂ ^ % o in ̂a\ -^ ~^ Ug- ^> o cS 2" t I?'? Q &• v.°> -̂v. u _, fS •? m ̂ S- '31 ̂d s^ ^^ *§m _^ ^̂ '̂ J ̂ d §^ ?>5 0 s ̂e.-* c n ce p tu a liz a tic o U <s — > oo ^ ̂^o "̂ VO r? 11 <N( ^~ "̂ co" CM r- in — • oo CO ON — ' O r-~ c î o so so so ^.5o ^o7 * ON ^ CO oo co >n vn •"0 in ̂ <N in — TJ- (U 0 .3 ffi •o S -2, §1 I" ̂ S s| s r > li EH 2 S g — i r-j co Co ^ sO SO sO oo' ^ r- in o" 00 sp CO so" ^t ON in CO (N in in CO CO o 1 cfl £ c in oT 0 CO' _^ CO r- fN CO* in CO co" p^ ^p ^ 5 5 s^ S £ 5 CO CO o (N <N 0 so" ^ OO P "~^ in in oo' ^ so ^ CO 3 8. <N" r- ti v e ju s ti c e a JD 'S ty? S TJ 00 (N r- in in in ? O-1 oo Ov ̂ 12 CO in oo pin o OÔ Tf •— in ro CN -< SO ^_^ >n co P Co ̂ °t \c' co" ̂ O\ sO in in" c^ o CO OO sp 6^ co'O •̂ "̂ >n ro — ( »n in °° S K pf ro — . \o uo" ̂ CO — « .2 D OH <U C s "s 1 SO — i ro -- CO s>— ' in 06 0 m (N oo sq 0? o\ CN" SO CN O 1 in" _^ fN in CO so CO oo" so "S tj go ^s tz ,o .2 CD •a T3 ra c 3 II vj S C ra 1 0 ^o C3 1 1 £ £ Q u II c1 cT .2 03 1C oo c .2 S S. a T3 O S CJ c a T3 C O i_ "c3 S c •s iC p: o II 0 c',o "St c CJ C O 0̂. o p. u n co rr e ct e d II 1 *2 S "t: aj •a 3 >> "O c "a. x c c C3 'S •s t C OJ o s. II I (LJ •3 ° 1 s c II c o rr e la tio n ; k c 'i o. a (SDrc = .23) and the low variance explained from artifacts (Vart = 2.74%) show that moderators exist in the broadly defined procedural justice-distributive justice relationship. Operational- ization explains some of that variation, in that the highest relation- ship was evident when an indirect combination measure was used (r = .63, rc = .17). Moreover, because their confidence intervals do not overlap, Table 2 shows that the indirect combination mea- sure relationship is significantly stronger than the more unidimen- sional justice measures: procedural fairness perceptions (r — .48, rc = .57), process control (r = .27, rc = .34), Leventhal criteria (r = .46, rt = .55), interpersonal justice (r = .38, rc = .42), and informational justice (r = .39, rc = .46). Proactive Research Questions Research Question 2 explored whether the additional conceptu- alizations of justice over the course of its history have contributed incremental variance explained in regard to promoting procedural fairness perceptions. This was tested by regressing procedural fairness perceptions onto the various justice operationalizations using hierarchical regression. Order of entry was based on histor- ical introduction, so the following steps were used: (a) Thibaut and Walker's (1975) process control operationalization, (b) Lev- enthal's (1980) justice criteria operationalization, and (c) Bies and Moag's (1986) interactional justice construct, broken down into interpersonal and informational justice (as in Greenberg, 1993b). The meta-analytic regression results are shown in Table 3. The original operationalization of procedural justice, process control, explained 26% of the variance in procedural fairness perceptions, with higher levels of process control producing more favorable fairness perceptions (j3 = .51). Leventhal criteria explained an additional 21% of the variance, with higher levels of his criteria also producing more favorable perceptions (|8 = .61). Interper- sonal and informational justice explained an additional 6% of the variance in fairness perceptions. That effect was due primarily to interpersonal justice (|3 = .29), although informational justice also had a significant effect (jS = .11). Research Question 3 asked how much variance the justice operationalizations explained in procedural fairness perceptions beyond the effects of distributive justice. This was tested by regressing procedural fairness perceptions onto the various justice operationalizations after controlling for distributive justice. These regression results are shown in Table 4. Distributive justice ex- plained 33% of the variance in procedural fairness perceptions, with higher levels of distributive justice being associated with more favorable fairness perceptions (ft = .57). The remaining justice operationalizations explained an incremental 24% of the variance. However, only two operationalizations had strong unique effects: Leventhal criteria (/3 = .30) and interpersonal justice (f3 = .26). Although statistically significant, the unique effects of pro- cess control (ft = .03) and informational justice (j3 = .07) were not practically significant. Reactive Research Questions Research Questions 4-6 explored the relationships between the organizational justice dimensions and several key outcome vari- ables. Table 5 presents the results for these research questions. Research Question 4 explored the relationships between distribu- 434 COLQUITT, CONLON, WESSON, PORTER, AND NG Table 2 Relationship Between Distributive and Procedural Justice Conceptualizations (Including Interpersonal and Informational Justice) Distributive justice Conceptualization Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure r (95% CI) .56 (.52, .60) .48 (.41, .55) .27 (.22, .33) .46 (.38, .54) .38 (.26, .50) .39 (.32, .47) .63 (.59, .66) rc (SDrJ .67 (.23) .57 (.28) .34 (.13) .55 (.17) .42 (.20) .46 (.15) .77 (.14) *W 92 (42,576) 45(13,418) 23(5,137) 15 (4,743) 9 (3,496) 14 (3,807) 54(51,446) V«(%) 2.74 3.41 24.15 8.27 5.62 13.19 2.32 Note, r = uncorrected population correlation; CI = confidence interval around uncorrected population correlation; rc = corrected population correlation; SDrc = standard deviation of corrected population correlation; k = number of studies; Vart = percentage of variance in rc explained by study artifacts. live justice and the outcomes. Distributive justice had high corre- lations with outcome satisfaction (r = .52, rc = .61), job satisfac- tion (r = .46, rc = .56), organizational commitment (r — .42, rc = .51), trust (r = .48, rc = .57), agent-referenced evaluation of authority (r = .53, rc = .59), and withdrawal (r = -.41, rc = -.50). Distributive justice had moderate correlations with system- referenced evaluation of authority (r — .30, rc = .37), OCBOs (r = .20, rc = .25), and negative reactions (r = —.26, rc = —.30) and was weakly related to OCBIs (r = .13, rc = .15) and performance (r= .13, rc = .15). Research Question 5 explored relationships between procedural justice and the same set of outcomes. Combining all conceivable procedural justice conceptualizations, again labeled broadly de- fined procedural justice, we see that procedural justice had high correlations with outcome satisfaction (r = .40, rc = .48), job satisfaction (r = .51, rc = .62), organizational commitment (r = .48, rc = .57), trust (r = .52, rc = .61), and agent-referenced evaluation of authority (r = .56, rc = .64). Procedural justice had moderate correlations with system-referenced evaluation of au- thority (r = .35, rc = .42), OCBOs (r = .23, rc = .27), withdrawal (r = —.36, rc = —.46), negative reactions (r = —.27, rc = —.31), and performance (r = .30, rc = .36). Finally, procedural justice had weak correlations with OCBIs (r = . 19, rc = .22). Table 5 also shows that moderators were present in the procedural justice- outcome relationships, with the exception of the relationships with the OCB variables. Operationalization could be one potential mod- erator for several of the outcome variables, because the indirect Table 3 Incremental Effects of Justice Operationalizations on Procedural Fairness Perceptions Regression step 1 . Process control 2. Leventhal criteria 3. Interpersonal justice Informational justice Total R2 .26* .47* .53* A/?2 .26* .21* .06* ft .51* .61* .28* .11* Note. N = 4,165 (based on the harmonic mean sample size of the Table 1 cells used in this regression). *p < .05. combination measure was significantly more related to job satis- faction, organizational commitment, and withdrawal than was any other Operationalization. Research Question 6 explored relationships between interper- sonal and informational justice and the outcome variables. Inter- personal justice was strongly related to agent-referenced evalua- tion of authority (r = .57, rc = .62) and moderately related to job satisfaction (r = .31, rc = .35), system-referenced evaluation of authority (r = .20, rc = .23), OCBIs (r = .23, rc = .29), and negative reactions (r = —.30, rc = —.35). It was weakly related to outcome satisfaction (r = .19), organizational commitment (r = . 16, rc = .19), withdrawal (r = —.02, rc = —.02), and performance (r = .03, rc = .03). Informational justice was strongly related to trust (r = .43, rc = .51), agent-referenced evaluation of authority (r = .58, rc = .65), and system-referenced evaluation of authority (r = .42, rc = .47) and was moderately related to outcome satisfaction (r = .27, rc = .30), job satisfaction (r = .38, rc = .43), organizational commitment (r = .26, rc = .29), OCBIs (r = .21, rc = .26), withdrawal (r = —.21, rc = -.24), and negative reactions (r = - .29, rc = - .33). It was weakly related to OCBOs (r = .18) and performance (r = .11, rc = .13). Research Question 7 examined the unique effects of the justice dimensions on the outcome variables considered simultaneously. Table 6 presents beta weights derived from regressing each of the outcomes on all four justice dimensions simultaneously. The table also presents unique R2 values derived from a "usefulness analy- sis" in which the effects of one justice dimension were examined after controlling for the others. The table also presents the total variance explained in each outcome by the justice dimensions. Note that, in some cases, the interpersonal justice beta weights were reversed in sign from that dimension's correlations. This was due to the multicollmearity in some of the regressions. If hierar- chical regression had been used and interpersonal justice had been entered in a step before procedural and informational justice were entered, the signs of the beta weights would not have been reversed. The regression results in Table 6 allowed us to examine the adequacy of the distributive dominance, two-factor, and agent- system reactive models. Leventhal's (1980) distributive domi- nance model would predict higher unique effects for distribu- META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 435 Table 4 Incremental Effects of Justice Operationalizations on Procedural Fairness Perceptions Beyond Distributive Justice Effects Regression step Total R2 1. Distributive justice 2. Process control Leventhal criteria Interpersonal justice Informational justice .33* .57* .33* .24* .57* .03* .30* .26* .07* Note. N = 4,165 (based on the harmonic mean sample size of the Table 1 cells used in this regression). *p < .05. live justice than for the other three justice forms. This prediction was supported for two outcomes (outcome satisfac- tion and withdrawal) and was refuted for the remaining nine outcomes. Sweeney and McFarlin's (1993) two-factor model would predict higher unique effects of distributive justice for person-referenced outcomes and higher unique effects of procedural justice for system-referenced outcomes. This prediction was supported for five outcomes (outcome satisfaction, job satisfaction, organiza- tional commitment, system-referenced evaluation of authority, and performance) and was refuted for three outcomes (OCBOs, with- drawal, and negative reactions). The two-factor model was not relevant to the three agent-referenced outcomes (agent-referenced evaluation of authority, trust, and OCBIs). Bies and Moag's (1986) agent-system model would predict higher unique effects of interpersonal or informational justice for agent-referenced outcomes and higher unique effects of procedural justice for system-referenced outcomes. This prediction was sup- ported for five outcomes (job satisfaction, organizational commit- ment, agent-referenced evaluation of authority, OCBIs, and per- formance) and refuted for five outcomes (system-referenced evaluation of authority, trust, OCBOs, withdrawal, and negative reactions). The agent-system model was not relevant to person- referenced outcomes such as outcome satisfaction. Discussion This meta-analytic review, consisting of 120 separate meta- analyses of 183 empirical studies, explored three types of research questions to aid further theory development in the organizational justice literature. The first type of question was related to construct discrimination (i.e., how highly related are the various facets of organizational justice?). Process control and Leventhal criteria, the two original procedural justice Operationalizations, were highly correlated, although perhaps not as highly as one would think given that they are used interchangeably to express the same construct. Similarly, interpersonal and informational justice were highly correlated, but again not so highly that it seems prudent to lump them together under the "interactional justice" label. Indeed, their correlation was not significantly higher than the correlation between procedural justice and distributive justice, two constructs whose separation has become canon. Further analyses showed that the procedural justice-distributive justice relationship varies to some degree by how the researcher operationalizes the former. The relationship is strongest when an indirect combination measure is used and weaker when procedural fairness perceptions, Leventhal criteria, and especially process control are used. The second type of research question dealt with proactive re- search, which is concerned with creating procedural fairness per- ceptions by adhering to certain rules, such as providing process control, being consistent, treating people with sensitivity, or ex- plaining things adequately. Our results showed that the historical progression of proactive research on procedural justice has in fact contributed to our ability to promote procedural fairness percep- tions. The original conceptualization, Thibaut and Walker's (1975) process control, predicted procedural fairness perceptions, but Leventhal's (1980) criteria contributed significant incremental variance. Indeed, it is worth noting that the Leventhal criteria had a significantly stronger relationship to procedural fairness percep- tions than did process control. In fact, the Leventhal criteria are even more impressive when we consider that they predicted almost as much variance in procedural fairness perceptions as process control, even when entered in a later step in the regression analysis. The concepts of interpersonal and informational justice, drawn from the field's recent interest in interactional justice, show a more mixed pattern of results. Their correlations with procedural fair- ness perceptions were just as strong as the correlations for Lev- enthal criteria. However, although they explained significant in- cremental variance in fairness perceptions, their contribution was small in comparison with the contributions of the other justice facets. Thus, interpersonal and informational justice, when con- sidered alone, were powerful predictors of procedural fairness perceptions. When considered in conjunction with structural facets of procedural justice, their contribution was less important, partic- ularly in the case of informational justice. Perhaps this is not surprising considering that informational justice often provides the opportunity to judge structural qualities of procedural justice (Greenberg, 1993b). Because it is well known that the fairness of decision-making procedures is often judged according to the kinds of outcomes one receives (Lind & Tyler, 1988), it is also important to show that the various conceptualizations of procedural justice are important even after control for distributive justice. If this had not been the case, then the procedural justice literature would have contributed little over earlier work by Homans (1961), Adams (1965), Leventhal (1976), and Deutsch (1975). Our results showed that, when dis- tributive justice was controlled, only Leventhal criteria and inter- personal justice retained their explanatory power. Because process control added little, it is tempting to conclude that measuring it is unnecessary if distributive justice and Leventhal criteria are also being considered. Perhaps this is not surprising given Lind and Tyler's (1988) assertion that Leventhal's "representativeness" cri- terion includes the process control concept. Turning to our third type of research question, reactive research, we tested three separate reactive models: Leventhal's (1980) dis- tributive dominance model, Sweeney and McFarlin's (1993) two- factor model, and Bies and Moag's (1986) agent-system model. Support for these models can be evaluated by examining the relative effects of distributive, procedural, interpersonal, and in- formational justice on the basis of the size of their meta-analytic correlations, as well as their unique effects in the meta-analytic regressions. We find little support for the distributive dominance 436 COLQUITT, CONLON, WESSON, PORTER, AND NG Table 5 Relationships Between Organizational Justice Dimensions and Outcome Variables Dimension Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure Distributive justice Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure Distributive justice Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure Distributive justice Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure Distributive justice Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure Distributive justice Broadly defined procedural justice Procedural fairness perceptions Process control Leventhal criteria Interpersonal justice Informational justice Indirect combination measure Distributive justice vart r (95% CI) rc (SDrJ k (N) (%) Outcome satisfaction .40 (.35, .46) .48 (.18) 30(8,073) 10.02 .45(36, .54) .53 (.17) 11(4,420) 6.59 .38 (.27, .48) .45 (.16) 8(1,774) 14.74 .25 (.13, .37) .32 (.17) 6(1,796) 13.03 .19 1 (301) .27 (.21, .33) .30 (.04) 4(1,404) 65.02 .47 (.39, .54) .54 (.15) 14(2,242) 18.87 .52 (.46, .59) .61 (.20) 28(9,321) 5.07 Organizational commitment .48 (.44, .52) .57 (.18) 53(33,455) 3.84 .32 (.25, .39) .37 (.16) 18(6,767) 9.58 .22 (.18, .27) .27 (.05) 7(2,898) 53.50 .26 (.22, .29) .30 (.00) 5(3,162) 100.00 .16 (.11,. 20) .19 (.00) 2(1,824) 100.00 .26 (.18, .34) .29 (.14) 10(3,968) 12.01 .55 (.51, .58) .65 (.10) 26(24,606) 6.10 .42 (.38, .47) .51 (.13) 24(27,805) 4.11 Evaluation of authority: Agent referenced .56 (.52, .59) .64 (.11) 33(20,034) 7.17 .53 (.46, .60) .60 (.13) 13(4,753) 8.76 .42(35, .50) .50 (.14) 10(3,436) 12.56 .53 (.41, .64) .63 (.17) 7(3,104) 4.86 .57 (.43, .71) .62 (.17) 5(2,534) 3.44 .58 (.46, .71) .65 (.21) 9(3,210) 3.21 .58 (.54, .62) .67 (.05) 9(13,850) 6.65 .53 (.46, .61) .59 (.15) 13(16,963) 1.96 OCBs: Individual referenced .19 (.16, .22) .22 (.00) 15(4,414) 100.00 .21 (.17, .25) .25 (.00) 2(1,872) 100.00 .16 (.12, .20) .21 (.00) 3(2,000) 100.00 .18 (.14, .23) .22 (.01) 3(2,108) 85.39 .23 (.18, .27) .29 (.00) 2(1,794) 100.00 .21 (.17, .26) .26 (.00) 2(1,883) 100.00 .19 (.14, .23) .22 (.02) 10(1,994) 90.18 .13 (.09, .17) .15 (.02) 6(2,633) 86.57 Withdrawal -.36 (-.42, -.31) -.46 (.20) 39(24,273) 4.12 -.27 (-.32, -.21) -.34 (.14) 21(7,344) 14.46 -.19 (-.27, -.10) -.24 (.14) 10(1,190) 39.94 -.23 (-30, -.16) -.29 (.07) 6(1,431) 50.87 -.02 (-.13, .09) -.02 (.00) 2(316) 100.00 -.21 (-34, -.07) -.24 (.21) 8(1,692) 11.42 -.44 (-.56, -.32) -.55 (.19) 6(14,392) 1.11 -.41 (-.46, -.37) -.50 (.12) 18(15,888) 7.45 Performance .30 (.21, .39) .36 (.29) 30(8,317) 4.83 .30 (.17, .43) .36(33) 18(6,925) 2.71 .14 (-.01, .29) .17 (.25) 8(1,002) 16.17 .08 (-.05, .21) .10 (.11) 3(501) 44.34 .03 (-.14, .20) .03 (.11) 2(389) 34.78 .11 (.00, .22) .13 (.11) 4(1,036) 29.79 .23 (.12, .35) .27 (.00) 7(1,084) 23.83 .13 (.03, .22) .15 (.18) 13(2,294) 18.43 varl r (95% CI) rc (S0rc) k (N) (%) Job satisfaction .51 (.46, .56) .62 (.18) 40(31,774) 2.88 .33 (.28, 38) .40 (.09) 11(4,958) 24.00 .30 (.25, 35) .37 (.05) 5(2,577) 50.39 36(33, .40) .42 (.00) 4(2,315) 100.00 31 (.26, 36) .35 (.02) 2(1,795) 65.96 38(34, .42) .43 (.00) 2(1,872) 100.00 .55 (.49, .61) .68 (.17) 22(25,221) 2.07 .46 (.42, .49) .56 (.09) 24(57,515) 8.31 Trust .52 (.44, .59) .61 (.20) 24 (4,522) 8.42 .56 (.49, .64) .62 (.08) 7(802) 39.78 .40(30, .50) .47 (.13) 7(1,031) 26.54 .58 (.09, .99) .65(38) 2(628) 1.23 .43(30, .57) .51 (.11) 3(487) 30.21 .55 (.45, .66) .64 (.18) 10(2,169) 8.02 .48 (.40, .57) .57 (.13) 8(1,735) 17.24 Evaluation of authority: System referenced 35 (31,. 40) .42 (.13) 25(9,708) 13.09 .45 (.42, .48) .51 (.12) 14(5,637) 11.63 .12 (.05, .20) .16 (.00) 3(663) 100.00 .19 (.02, .36) .22 (.15) 3(427) 29.27 .20 (.01, .38) .23 (.16) 3(469) 22.95 .42 (.29, .55) .47 (.15) 5(1,035) 14.94 .31 (.24, 38) .37 (.12) 11(3,790) 17.96 .30 (.24, 36) 37 (.12) 13(4,103) 20.64 OCBs: Organization referenced .23 (.19, .26) .27 (.04) 15(3,176) 78.62 .21 1 (140) .14 1 (206) .15 (.06, .24) .18 (.00) 2(431) 100.00 .18 1 (206) .25 (.20, .30) .30 (.06) 9(1,961) 63.06 .20 (.14, .26) .25 (.00) 5(903) 100.00 Negative reactions -.27 (-.33, -.21) -.31 (.18) 27(6,275) 1337 -33 (-.39, -.26) -.38 (.12) 13(3,563) 22.15 -.23 (-.27, -.19) -.30 (.00) 3(2,094) 100.00 -.28 (-.35, -.22) -.35 (.06) 5(2,308) 34.76 -30 (-.35, -.26) -.35 (.04) 7(2,707) 58.78 -.29 (-34, -.24) -.33 (.06) 8(2,731) 45.25 -.20 (-35, -.05) -.22 (.21) 7(1,807) 9.28 -.26 (-35, -.17) -30 (.17) 13(3,782) 12.27 Note, r = uncorrected population correlation; CI = confidence interval around uncorrected population correlation; rc = corrected population correlation; SOrc = standard deviation of corrected population correlation; k = number of studies; Vart = percentage of variance in rc explained by study artifacts; OCBs = organizational citizenship behaviors. META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 437 Table 6 Unique Effects of Procedural, Interpersonal, Informational, and Distributive Justice on Outcome Variables Justice dimension Outcome variable Outcome satisfaction (N - 1,792) 0 Unique R2 Job satisfaction (N = 4,039) 0 Unique R2 Organizational commitment (N = 4,582) 0 Unique R2 Evaluation of authority: Agent-referenced (N = 4,517) 0 Unique R2 Evaluation of authority: System-referenced (N = 2,114) ft Unique R2 Trust^ = 1,711) 0 Unique R2 OCBs: Individual referenced (N = 3,192) ft Unique R2 OCBs: Organization referenced (N = 782) 0 Unique R2 Performance (N = 1,855) 0 Unique /f2 Withdrawal (AT = 1,919) 0 Unique ff2 Negative reactions (N = 4,039) 0 Unique R2 Procedural .17* .02* .48* .11* .42* .09* .01 .00 .30* .04* .31* .05* .06* .00* .12* .01* .56* .15* -.10* .01* -.06* .00* Interpersonal -.08* .00* -.09* .01* -.18* .02* .27* .04* -.19* .02* .19* .02* -.20* .02* .23* .02* -.18* .02* Informational .02 .00 .13* .01* .07* .00* .32* .05* .44* .10* .21* .03* .11* .01* .11* .01* .07* .00* -.21* .02* -.12* .01* Distributive .54* .18* .26* .04* .31* .06* .32* .06* .11* .01* .30* .05* -.01* .00 .12* .01* -.07 .00* -.51* .16* -.14* .01* Total R2 .39* .45* .35* .57* .31* .45* .09* .08* .19* .33* .16* Note. Sample sizes are based on the harmonic mean of the sample sizes for the correlations among the justice and outcome variables. The procedural justice variable includes process control, Leventhal criteria, and procedural fairness perceptions. OCBs = organizational citizenship behaviors. * p < .05. model, which predicts that distributive justice will have stronger effects than the other justice dimensions. This model was sup- ported for outcome satisfaction and withdrawal but not for any of the other nine outcomes. The two-factor model predicts that procedural justice will have stronger effects than distributive justice on system-referenced vari- ables but weaker effects than distributive justice on person- referenced variables. This model seemed to receive support only for person-referenced and system-referenced attitudes such as out- come satisfaction, job satisfaction, organizational commitment, and system-referenced evaluation of authority. The two-factor model's predictions were not supported for more behavioral vari- ables such as OCBs, withdrawal, and negative reactions. The only exception to this observation involved performance. Procedural justice was more capable of predicting performance than distrib- utive justice, which supports the two-factor model if performance is assumed to be a system-referenced outcome. The agent-system model predicts that interpersonal or informa- tional justice will have stronger effects than procedural justice on agent-referenced variables but weaker effects than procedural jus- tice on system-referenced variables. This model was supported for agent-referenced outcomes, including agent-referenced evaluation of authority and OCBIs, but not for trust, which was more related to procedural and distributive justice. The agent-system model was also supported for job satisfaction, organizational commit- ment, and performance. The model actually seems to underesti- mate the importance of interpersonal or informational justice for behavioral variables. Interpersonal or informational justice was a strong predictor of OCBOs, withdrawal, and negative reactions, which would not have been predicted on the basis of the agent- system model. Implications for the Organizational Justice Literature The conceptualization, measurement, and analysis of organiza- tional justice depend in large part on a given study's research question, as well as the sample or setting used to examine it. Nonetheless, the results of our review have some broad, general implications for the justice literature as a whole. Distinctiveness of justice dimensions. The construct discrimi- nation results suggest that procedural, interpersonal, and informa- tional justice are distinct constructs that can be empirically distin- 438 COLQUITT, CONLON, WESSON, PORTER, AND NG guished from one another. We would therefore call for a moratorium on indirect combination measures that combine the three justice dimensions into a single variable. Thirty-five of the studies included in our review used such measures (e.g., Brockner et al., 1995, 1997; Folger & Konovsky, 1989; Konovsky & Folger, 1991; Mansour-Cole & Scott, 1998; Skarlicki & Latham, 1997). Our review showed that procedural, interpersonal, and informa- tional justice have different correlates, and measuring the three separately allows for further differences among the dimensions to be examined. Measurement of justice dimensions. It is also critical that researchers devote more care and effort to the measurement of justice dimensions. Some of the articles we reviewed used mea- sures that assessed, among supervisors, granting subordinates voice, treating subordinates consistently, suppressing biases, being respectful, and providing explanations. Such measures were la- beled "interactional justice" (e.g., Moorman, 1991; Skarlicki & Latham, 1997), even though only the latter two are included in Bies and Moag's (1986) construct. Authors may have included such items on the basis of Folger and Bies's (1989) article on "managerial responsibilities" for procedural justice, which listed seven principles (process control, bias suppression, consistency, feedback, justification, truthfulness, and courtesy) managers should use to promote procedural justice. Not surprisingly, re- searchers using such measures have been forced to collapse the interactional justice measure with their procedural justice measure as a result of high intercorrelations (Mansour-Cole & Scott, 1998; Skarlicki & Latham, 1997). Thus, more attention should be paid to content validity, as in a recent study by Colquitt (2001), who developed scales for the justice dimensions based on the seminal works introducing them and validated the scales in two indepen- dent studies. Distinguishing justice content from justice source. Relatedly, future research should seek to separate the effects of justice con- tent from the effects of justice source. Procedurai justice can be a function of an organization, as when a formalized decision-making system provides process control or consistency as a result of the way in which it is structured (e.g., Adams-Roy & Barling, 1998; Ehlen, Magner, & Welker, 1999; Skarlicki et al., 1999). Procedural justice can also be a function of a decision-making agent, as when a manager takes steps to involve subordinates in decisions or treat subordinates consistently (e.g., Folger & Konovsky, 1989; Konovsky, Folger, & Cropanzano, 1987; Korsgaard, Schweiger, & Sapienza, 1995). Likewise, informational and interpersonal justice can be fostered through organizational policies and initiatives (e.g., Konovsky & Folger, 1991; Mansour-Cole & Scott, 1998; Tansky, 1993) or through the actions of a decision-making agent (e.g., Bies, Shapiro, & Cummings, 1988; Greenberg, 1994; Moorman, 1991). It is difficult to draw conclusions from studies comparing the effects of organization-originating procedural justice with agent-originating interpersonal or informational justice because source and content are confounded. Fortunately, recent research is beginning to examine this important issue by crossing justice source with justice content to assess their joint effects (Blader & Tyler, 2000; Byrne & Cropanzano, 2000; Masterson, Bartol, & Moye, 2000). Including multiple justice dimensions in single studies. Our results also clearly show that researchers can explain more out- come variance by including multiple justice dimensions within single studies, although there are some diminishing returns asso- ciated with this strategy. Our proactive research results showed that distributive justice, procedural justice (in terms of Leventhal criteria), interpersonal justice, and, to a lesser extent, informational justice each contribute uniquely to the creation of fairness percep- tions. Our reactive research results showed that procedural and distributive justice are sufficient to adequately predict several outcomes, and procedural and distributive justice were either the strongest or second strongest predictors of 15 outcomes. However, interpersonal and informational justice clearly contributed to the prediction of other outcomes. For example, one or both of these variables were strong independent predictors of behavioral out- comes such as OCBIs, OCBOs, withdrawal, and negative reac- tions. Informational justice was the strongest predictor of both agent-referenced and system-referenced evaluation of authority. These results suggest that researchers interested in most evaluation or behavioral outcomes should assess both structural and interac- tional facets of justice. Examining interactions among justice dimensions. In addition to explaining more outcome variance, including multiple dimen- sions will also allow for the testing of interaction effects. The interaction between procedural and distributive justice has been perhaps the most robust finding in the justice literature (Brockner & Wiesenfeld, 1996). Skarlicki and Folger (1997) further showed that procedural and interactional justice interact in predicting ORBs. These authors also found support for three-way interactions among procedural, interactional, and distributive justice. Such complex relationships do not map neatly onto reactive models such as the two-factor or agent-system model. However, the fact that moderators were present in almost all of the justice-outcome relationships suggests that more complex relationships may be the key to improving outcome prediction. Gaps in the existing literature. A final implication of our results resides in the gaps revealed by this review. A scan of Table 5 highlights areas where more research ought to be done. In terms of sheer number of studies, we note that procedural justice is much better represented in studies of satisfaction, commitment, evaluation of authorities, withdrawal, and negative reactions and relatively underrepresented in studies of performance, OCBs, and trust. We also note that interpersonal and informational justice have received less attention than distributive and procedural jus- tice, probably as a result of their more recent appearance in the justice literature. This is particularly evident for interpersonal justice, which has been assessed in 16 studies, as opposed to 31 studies for informational justice. As more researchers consider multiple justice dimensions in their work, these gaps should begin to be filled. Limitations This review has some limitations that should be noted. First, as in the primary studies on which our review is based, many of the variables were assessed with self-report measures. Thus, many of the relationships may be inflated because of same source bias. Second, any meta-analysis is subject to a variety of judgment calls META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 439 (Wanous, Sullivan, & Malinak, 1989). Although we performed all coding in author dyads, it is possible that some of these judgment calls affected our results. Finally, the fact that meta-analysis re- quires the reporting of zero-order results meant that several im- portant justice articles could not be included in our review. In particular, many of Tyler's examinations of the relational model of justice had to be omitted (e.g., Tyler, 1989, 1994; Tyler et al., 1996). Conclusion In a review of the organizational justice literature, Greenberg (1993a) suggested that the field was in a state of "intellectual adolescence." This adolescence, though marked by many advance- ments, is also characterized by "stumbling awkwardness" due to underdeveloped research agendas and the absence of underlying theory (Greenberg, 1993a, p. 139). In an earlier review, Greenberg (1990b) echoed these sentiments, noting that the field was years away from the final stage of Reichers and Schneider's (1990) construct life cycle. That final stage, termed "consolidation and accommodation," is characterized by a reduction in controversies and an increase in agreement about definitions, antecedents, and consequences. Meta-analytic reviews, according to Greenberg (1990b), can help create such consolidation. Thus, we hope that the review presented in this article can help the field enter a more mature stage, as research on justice enters the new millennium. References References marked with an asterisk indicate studies included in the meta-analysis. Adams, J. S. (1965). Inequity in social exchange. In L. Berkowitz (Ed.), Advances in experimental social psychology (Vol. 2, pp. 267-299). New York: Academic Press. *Adams-Roy, J., & Barling, J. (1998). Predicting the decision to confront or report sexual harassment. Journal of Organizational Behavior, 19, 329-336. Alexander, S., & Ruderman, M. (1987). The role of procedural and distributive justice in organizational behavior. Social Justice Re- search, 1, 177-198. Allen, N. J., & Meyer, J. P. (1990). The measurement and antecedents of affective, continuance, and normative commitment to the organization. Journal of Occupational Psychology, 63, 1-18. *Ambrose, M. L., & Kulik, C. T. (1989). The influence of social compar- isons on perceptions of procedural fairness. Journal of Business and Psychology, 4, 129-138. *Aquino, K. (1995). Relationships among pay inequity, perceptions of procedural justice, and organizational citizenship. Employee Responsi- bilities and Rights Journal, 8, 21-33. *Aquino, K., Griffeth, R. W., Allen, D. G., & Horn, P. W. (1997). Integrating justice constructs into the turnover process: A test of a referent cognitions model. Academy of Management Journal, 40, 1208- 1227. *Armstrong-Stassen, M. (1998). The effect of gender and organizational level on how survivors appraise and cope with organizational downsiz- ing. Journal of Applied Behavioral Science, 34, 125-142. *Austin, W., McGinn, N. C., & Susmilch, C. (1980). Internal standards revisited: Effects of social comparisons and expectancies on judgments of fairness and satisfaction. Journal of Experimental Social Psychol- ogy, 16, 426-441. *Ball, G. A., Trevino, L. K. & Sims, H. P., Jr. (1993). Justice and organizational punishment: Attitudinal outcomes of disciplinary events. Social Justice Research, 6, 39-67. *Ball, G. A., Trevino, L. K., & Sims, H. P., Jr. (1994). Just and unjust punishment: Influences on subordinate performance and citizenship. Academy of Management Journal, 37, 299-322. *Barclay, J. H., & Harland, L. K. (1995). Peer performance appraisals: The impact of rater competence, rater location, and rating correctability on fairness perceptions. Group and Organization Management, 20, 39-60. *Barling, J., & Phillips, M. (1993). Interactional, formal and distributive justice in the workplace: An exploratory study. Journal of Psychology, 127, 649-656. Bazerman, M. H., Schroth, H., Shah, P., Diekmann, K., & Tenbrunsel, A. (1994). The inconsistent role of comparison others and procedural jus- tice in reactions to hypothetical job descriptions; Implications for job acceptance decisions. Organizational Behavior and Human Decision Processes, 60, 326-352. *Bennett, N., Martin, C. L., Bies, R. J., & Brockner, J. (1995). Coping with a layoff: A longitudinal study of victims. Journal of Management, 21, 1025-1040. *Bennett, R. J. (1998). Taking the sting out of the whip: Reactions to consistent punishment for unethical behavior. Journal of Experimental Psychology: Applied, 4, 248-262. *Bies, R. J. (1987). Beyond "voice": The influence of decision-maker justification and sincerity on procedural fairness judgments. Represen- tative Research in Social Psychology, 17, 3-14. *Bies, R. J., Martin, C. L., & Brockner, J. (1993). Just laid off, but still a "good citizen?" Only if the process is fair. Employee Responsibilities and Rights Journal, 6, 227-238. Bies, R. J., & Moag, J. F. (1986). Interactional justice: Communication criteria of fairness. In R. J. Lewicki, B. H. Sheppard, & M. H. Bazerman (Eds.), Research on negotiations in organizations (Vol. 1, pp. 43-55). Greenwich, CT: JAI Press. *Bies, R. J., & Shapiro, D. L. (1987). Interactional fairness judgments: The influence of causal accounts. Social Justice Research, I, 199-218. *Bies, R. J., & Shapiro, D. L. (1988). Voice and justification: Their influence on procedural fairness judgments. Academy of Management Journal, 31, 676-685. *Bies, R. J., Shapiro, D. L., & Cummings, L. L. (1988). Causal accounts and managing organizational conflict: Is it enough to say it's not my fault? Communication Research, 15, 381-399. Blader, S. L., & Tyler, T. R. (2000, August). A four-component model of procedural justice: What makes a process fair in work settings? Paper presented at the 59th Annual Meeting of the National Academy of Management, Toronto, Ontario, Canada. Blau, P. M. (1964). Exchange and power in social life. New York: Wiley. *Bobocel, D. R., Agar, S. E., Meyer, J. P., & Irving, P. G. (1998). Managerial accounts and fairness perceptions in conflict resolution: Differentiating the effects of minimizing responsibility and providing justification. Basic and Applied Social Psychology, 20, 133-143. *Bobocel, D. R., & Farrell, A. C. (1996). Sex-based promotion decisions and interactional fairness: Investigating the influence of managerial accounts. Journal of Applied Psychology, 81, 22-35. Borman, W. C. (1991). Job behavior, performance, and effectiveness. In M. D. Dunnette & L. M. Hough (Eds.), Handbook of industrial and organizational psychology (2nd ed., Vol. 2, pp. 271-326). Palo Alto, CA: Consulting Psychologists Press. *Brockner, J., DeWitt, R. L., Grover, S., & Reed, T. (1990). When it is especially important to explain why: Factors affecting the relationship between managers' explanations of a layoff and survivors' reactions to the layoff. Journal of Experimental Social Psychology, 26, 389-407. *Brockner, J., Konovsky, M., Cooper-Schneider, R., Folger, R., Martin, C., & Bies, R. J. (1994). Interactive effects of procedural justice and 440 COLQUITT, CONLON, WESSON, PORTER, AND NO outcome negativity on victims and survivors of job loss. Academy of Management Journal, 37, 397-409. *Brockner, J., Siegel, P. A., Daly, J. P., & Martin, C. (1997). When trust matters: The moderating effect of outcome favorability. Administrative Science Quarterly, 42, 558-583. *Brockner, J., Tyler, T. M, & Cooper-Schneider, R. (1992). The influence of prior commitment to an institution on reactions to perceived unfair- ness: The higher they are, the harder they fall. Administrative Science Quarterly, 37, 241-261. Brockner, J., & Wiesenfeld, B. M. (1996). An integrative framework for explaining reactions to decisions: Interactive effects of outcomes and procedures. Psychological Bulletin, 120, 189-208. *Brockner, J., Wiesenfeld, B. M., & Martin, C. L. (1995). Decision frame, procedural justice, and survivors' reactions to job layoffs. Organiza- tional Behavior and Human Decision Processes, 63, 59-68. *Brockner, J., Wiesenfeld, B. M., Reed, T., Grover, S., & Martin, C. (1993). Interactive effect of job content and context on the reactions of layoff survivors. Journal of Personality and Social Psychology, 64, 187-197. Byrne, Z. S., & Cropanzano, R. S. (2000, April). To which do I attribute this fairness? Differential effects of multi-foci justice on organizational work behaviors. Paper presented at the 15th Annual Conference of the Society for Industrial and Organizational Psychology, New Orleans, LA. *Cobb, A. T., & Frey, F. M. (1996). The effects of leader fairness and pay outcomes on superior/subordinate relations. Journal of Applied Social Psychology, 26, 1401-1426. *Cobb, A. T., Vest. M., & Hills, F. (1997). Who delivers justice? Source perceptions of procedural fairness. Journal of Applied Social Psychol- ogy, 27, 1021-1040. Cohen, J.. & Cohen, P. (1983). Applied multiple regression/correlation analysis for the behavioral sciences. Hillsdale, NJ: Erlbaum. *Colquitt, J. A. (1999). The impact of procedural justice in teams: An analysis of task, team, and member moderators. Unpublished doctoral dissertation, Michigan State University, East Lansing. *Colquitt, J. A. (2000). Justice in teams: An analysis of antecedents and consequences. Unpublished manuscript. *Colquitt, J. A. (2001). On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology, 86, 386-400. *Colquitt, J. A., & Chertkoff, J. M. (1996, April). Explaining injustice: The interactive effect of explanation and outcome on fairness perceptions and task motivation. Paper presented at the 11th Annual Conference of the Society for Industrial and Organizational Psychology, San Diego, CA. Colquitt, J. A., LePine, J. A., & Noe, R. A. (2000). Toward an integrative theory of training motivation: A meta-analytic path analysis of 20 years of research. Journal of Applied Psychology, 85, 678-707. *Conlon, D. E. (1993). Some tests of the self-interest and group value models of procedural justice: Evidence from an organizational appeal procedure. Academy of Management Journal, 36, 1109-1124. *Conlon, D. E., & Fasolo, P. M. (1990). Influence of speed of third-party intervention and outcome on negotiator and constituent fairness judg- ments. Academy of Management Journal, 33, 833-846. *Conlon, D. E., & Lynch, P. D. (1997, June). The role of contracts and explanations on justice judgments and agent compensation. Paper pre- sented at the I0th Annual Conference of the International Association for Conflict Management, Bonn, Germany. *Conlon, D. E., & Murray, N. M. (1996). Customer perceptions of corpo- rate responses to product complaints: The role of explanations. Academy of Management Journal, 39, 1040-1056. *Conlon, D. E., & Parks, J. M. (1999). Effects of resources and reward allocation rules on justice judgments. Unpublished manuscript. *Conlon, D. E., & Ross, W. H. (1993). The effects of partisan third parties on negotiator behavior and outcome perceptions. Journal of Applied Psychology, 78, 280-290. *Conlon, D. E., & Ross, W. H. (1997). Appearances do count: The effects of outcomes and explanations on disputant fairness judgments and supervisory evaluations. International Journal of Conflict Manage- ment, 8, 5-31. Cropanzano, R., & Ambrose, M. L. (2001). Procedural and distributive justice are more similar than you think: A monistic perspective and a research agenda. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 119-151). Lexington, MA: New Lexington Press. Cropanzano, R., & Greenberg, J. (1997). Progress in organizational justice: Tunneling through the maze. In C. Cooper & I. Robertson (Eds.), International review of industrial and organizational psychology (pp. 317-372). New York: Wiley. *Cropanzano, R., & Konovsky, M. A. (1996). Resolving the justice di- lemma by improving the outcomes: The case of employee drug screen- ing. Journal of Business and Psychology, 11, 239-263. *Cropanzano, R., & Prehar, C. A. (1999, April). Using social exchange theory to distinguish procedural from interactional justice. Paper pre- sented at the 14th Annual Conference of the Society for Industrial and Organizational Psychology, Atlanta, GA. Cudeck, R. (1989). Analysis of correlation matrices using covariance structure models. Psychological Bulletin, 105, 317-327. *Dailey, R. C., & Kirk, D. J. (1992). Distributive and procedural justice as antecedents of job dissatisfaction and intent to turnover. Human Rela- tions, 45, 305-317. *Daly, J. P. (1995). Explaining changes to employees: The influence of justifications and change outcomes on employees' fairness judgments. Journal of Applied Behavioral Science, 31, 415-428. *Daly, J. P., & Geyer, P. D. (1994). The role of fairness in implementing large-scale change: Employee evaluations of process and outcome in seven facility relocations. Journal of Organizational Behavior, 15, 623- 638. *Davy, J. A., Kinicki, A. J., & Scheck, C. L. (1991). Developing and testing a model of survivor responses to layoffs. Journal of Vocational Behavior, 38, 302-317. Deutsch, M. (1975). Equity, equality, and need: What determines which value will be used as the basis of distributive justice? Journal of Social Issues, 31, 137-150. *DeWitt, R. L., Trevino, L. K., & Mollica, K. A. (1998). The influence of eligibility on employees' reactions to voluntary workforce reductions. Journal of Management, 24, 593-613. *Dittrich, J. E., & Carrell, M. R. (1979). Organizational equity perceptions, employee job satisfaction, and department absence and turnover rates. Organizational Behavior and Human Decision Processes, 24, 29-40. *Donovan, M. A., Drasgow, F., & Munson, L. J. (1998). The Perceptions of Fair Interpersonal Treatment Scale: Development and validation of a measure of interpersonal treatment in the workplace. Journal of Applied Psychology, 83, 683-692. *Dulebotm, J. H., & Ferris, G. R. (1999). The role of influence tactics in perceptions of performance evaluations' fairness. Academy of Manage- ment Journal, 42, 288-303. *Dulebohn, J. H., & Martocchio, J. J. (1998). Employee perceptions of the fairness of work group incentive pay plans. Journal of Management, 24, 469-488. *Earley, P. C., & Lind, E. A. (1987). Procedural justice and participation in task selection: The role of control in mediating justice judgments. Journal of Personality and Social Psychology, 52, 1148-1160. *Ehlen, C. R., Magner, N. R., & Welker, R. B. (1999). Testing for interactive effects of outcome favourability and procedural fairness on members' reactions towards a voluntary professional organization. Jour- nal of Occupational and Organizational Psychology, 72, 147-161. META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 441 *Farh, J., Earley, P. C., & Lin, S. (1997). Impetus for action: A cultural analysis of justice and organizational citizenship behavior in Chinese society. Administrative Science Quarterly, 42, 421-444. Folger, R. (1977). Distributive and procedural justice: Combined impact of "voice" and improvement on experienced inequity Journal of Person- ality and Social Psychology, 35, 108-119. Folger, R. (1987). Distributive and procedural justice in the workplace. Social Justice Research, 1, 143-159. Folger, R., & Bies, R. J. (1989). Managerial responsibilities and procedural justice. Employee Responsibilities and Rights Journal, 2, 79-89. Folger, R., & Cropanzano, R. (1998). Organizational justice and human resource management. Thousand Oaks, CA: Sage. *FoIger, R., & Konovsky, M. A. (1989). Effects of procedural and distrib- utive justice on reactions to pay raise decisions. Academy of Manage- ment Journal, 32, 115-130. *Folger, R., & Martin, C. (1986). Relative deprivation and referent cog- nitions: Distributive and procedural justice effects. Journal of Experi- mental Social Psychology, 22, 531-546. *Folger, R., Rosenfield, D., Grove, J., & Corkran, L. (1979). Effects of "voice" and peer opinions and responses to inequity. Journal of Person- ality and Social Psychology, 37, 2253-2261. *Folger, R., Rosenfield, D., Hays, R., & Grove, R. (1978). Justice vs. justification effects on productivity: Reconciling equity and dissonance findings. Organizational Behavior and Human Decision Processes, 22, 465-473. *Folger, R., & Skarlicki, D. P. (1998). When tough times make tough bosses: Managerial distancing as a function of layoff blame. Academy of Management Journal, 41, 79-87. *Frost, S. E. (Ed.). (1972). Masterworks of philosophy (Vol. 1, pp. 135- 140). Boston: McGraw-Hill. *Fryxell, G. E., & Gordon, M. E. (1989). Workplace justice and job satisfaction as predictors of satisfaction with union and management. Academy of Management Journal, 32, 851-866. *Gellatly, I. R. (1995). Individual and group determinants of employee absenteeism: Test of a causal model. Journal of Organizational Behav- ior, 16, 469-485. *George, J. M. (1991). State or trait: Effects of positive mood on prosocial behaviors at work. Journal of Applied Psychology, 76, 299-307. *Giacobbe-Miller, J. (1995). A test of the group values and control models of procedural justice from the competing perspectives of labor and management. Personnel Psychology, 48, 115-142. *Giles, W. F., Findley, H. M., & Field, H. S. (1997). Procedural fairness in performance appraisal: Beyond the review session. Journal of Business and Psychology, 11, 493-506. *Gilliland, S. W. (1994). Effects of procedural and distributive justice on reactions to a selection system. Journal of Applied Psychology, 79, 691-701. *Gilliland, S. W., & Beckstein, B. A. (1996). Procedural and distributive justice in the editorial review process. Personnel Psychology, 49, 669- 691. *Gilliland, S. W., Benson, L., & Schepers, D. H. (1998). A rejection threshold in justice evaluations: Effects on judgment and decision- making. Organizational Behavior and Human Decision Processes, 76, 113-131. *Gordon, M. E., & Bowlby, R. L. (1988). Propositions about grievance settlements: Finally, consultation with grievants. Personnel Psychol- ogy, 41, 107-123. *Gordon, M. E., & Fryxell, G. E. (1989). Voluntariness of association as a moderator of the importance of procedural and distributive justice. Journal of Applied Social Psychology, 19, 993-1009. Graen, G. B., & Scandura, T. (1987). Toward a psychology of dyadic organizing. In L. L. Cummings & B. M. Staw (Eds.), Research in organizational behavior (Vol. 9, pp. 175-208). Greenwich, CT: JAI Press. *Greenberg, J. (1987a). Reactions to procedural injustice in payment distributions: Do the means justify the ends? Journal of Applied Psy- chology, 72, 55-61. Greenberg, J. (1987b). A taxonomy of organizational justice theories. Academy of Management Review, 12, 9-22. Greenberg, J. (1990a). Employee theft as a reaction to underpayment inequity: The hidden cost of pay cuts. Journal of Applied Psychol- ogy, 75, 561-568. Greenberg, J. (1990b). Organizational justice: Yesterday, today, and to- morrow. Journal of Management, 16, 399-432. Greenberg, J. (1993a). The intellectual adolescence of organizational jus- tice: You've come a long way, maybe. Social Justice Research, 6, 135-148. Greenberg, J. (1993b). The social side of fairness: Interpersonal and informational classes of organizational justice. In R. Cropanzano (Ed.), Justice in the workplace: Approaching fairness in human resource management (pp. 79-103). Hillsdale, NJ: Erlbaum. *Greenberg, J. (1993c). Stealing in the name of justice: Informational and interpersonal moderators of theft reactions to underpayment inequity. Organizational Behavior and Human Decision Processes, 54, 81-103. *Greenberg, J. (1994). Using socially fair treatment to promote acceptance of a work site smoking ban. Journal of Applied Psychology, 79, 288- 297. *Grienberger, I. V., Rutte, C. G., & Van Knippenberg, A. F. M. (1997). Influence of social comparisons of outcomes and procedures on fairness judgments. Journal of Applied Psychology, 82, 913-919. *Griffeth, R. W., Vecchio, R. P., & Logan, J. W. (1989). Equity theory and interpersonal attraction. Journal of Applied Psychology, 74, 394-401. *Hagedoorn, M., Buunk, B. P., & Van de Vliert, E. (1998). Opening the black box between justice and reactions to unfavorable outcomes in the workplace. Social Justice Research, 11, 41-57. *Hammer, T. H., Landau, J. C., & Stern, R. N. (1981). Absenteeism when workers have a voice: The case of employee ownership. Journal of Applied Psychology, 66, 561-573. *Harrison, D. A., McLaughlin, M. E., & Coalter, T. M. (1996). Context, cognition, and common method variance: Psychometric and verbal pro- tocol evidence. Organizational Behavior and Human Decision Pro- cesses, 68, 246-261. Horn, P. W., Caranikas-Walker, F., Prussia, G. E., & Griffeth, R. W. (1992). A meta-analytical structural equations analysis of a model of employee turnover. Journal of Applied Psychology, 77, 890-909. *Hom, P. W., Griffeth, R. W., & Sellaro, C. L. (1984). The validity of Mobley's (1977) model of employee turnover. Organizational Behavior and Human Decision Processes, 34, 141-174. Homans, G. (1961). Social behaviour: Its elementary forms. London: Routledge & Kegan Paul. Hunter, J. E., & Schmidt, F. L. (1990). Methods ofmeta-analysis. Newbury Park, CA: Sage. *Jones, F. F., Scarpello, V., & Bergmann, T. (1999). Pay procedures: What makes them fair? Journal of Occupational and Organizational Psychol- ogy, 72, 129-145. *Joy, V. L., & Witt, L. A. (1992). Delay of gratification as a moderator of the procedural justice-distributive justice relationship. Group and Orga- nization Management, 17, 297-308. *Kanfer, R., Sawyer, J. E., Earley, P. C., & Lind, E. A. (1987). Fairness and participation in evaluation procedures: Effects on task attitudes and performance. Social Justice Research, I, 235-249. *Karambayya, R., & Brett, J. M. (1989). Managers handling disputes: Third-party roles and perceptions of fairness. Academy of Management Journal, 32, 687-704. 442 COLQUITT, CONLON, WESSON, PORTER, AND NO *KelIer, T., & Dansereau, F. (1995). Leadership and empowerment: A social exchange perspective. Human Relations, 48, 127-146. *Kidwell, R. E., & Bennett, N. (1994). Employee reactions to electronic control systems: The role of procedural fairness. Group and Organiza- tion Management, 19, 203-218. *Kim, W. C., & Mauborgne, R. A. (1993). Procedural justice, attitudes, and subsidiary top management compliance with multinationals' corpo- rate strategic decisions. Academy of Management Journal, 36, 502-526. *Kim, W. C., & Mauborgne, R. A. (1996). Procedural justice and manag- ers' in-role and extra-role behavior: The case of the multinational. Management Science, 42, 499-515. *King, W. C., Jr., Miles, E. W., & Day, D. D. (1993). A test and refinement of the equity sensitivity construct. Journal of Organizational Behav- ior, 14, 301-317. *Konovsky, M. A., & Cropanzano, R. (1991). Perceived fairness of em- ployee drug testing as a predictor of employee attitudes and job perfor- mance. Journal of Applied Psychology, 76, 698-707. *Konovsky, M. A., & Folger, R. (1991). The effects of procedures, social accounts, and benefits level on victims' layoff reactions. Journal of Applied Social Psychology, 21, 630-650. *Konovsky, M. A., Folger, R., & Cropanzano, R. (1987). Relative effects of procedural and distributive justice on employee attitudes. Represen- tative Research in Social Psychology, 17, 15-24. *Konovsky, M. A., & Pugh, S. D. (1994). Citizenship behavior and social exchange. Academy of Management Journal, 37, 656-669. *Korsgaard, M. A., & Roberson, L. (1995). Procedural justice in perfor- mance evaluation: The role of instrumental and non-instrumental voice in performance appraisal discussions. Journal of Management, 21, 657- 669. *Korsgaard, M. A., Roberson, L., & Rymph, R. D. (1998). What motivates fairness? The role of subordinate assertive behavior on managers' inter- actional fairness. Journal of Applied Psychology, 83, 731-744. *Korsgaard, M. A., Schweiger, D. M., & Sapienza, H. J. (1995). Building commitment, attachment, and trust in strategic decision-making teams: The role of procedural justice. Academy of Management Journal, 38, 60-84. *Latack, J. C., Josephs, S. L., Roach, B. L., & Levine, M. D. (1987). Carpenter apprentices: Comparison of career transitions for men and women. Journal of Applied Psychology, 72, 393-400. *LaTour, S. (1978). Determinants of participant and observer satisfaction with adversary and inquisitorial modes of adjudication. Journal of Per- sonality and Social Psychology, 12, 1531—1545. *Lawson, M. B., & Angle, H. L. (1998). Upon reflection: Commitment, satisfaction, and regret after a corporate relocation. Group and Organi- zation Management, 23, 289-317. *Lee, C., & Farh, J. L. (1999). The effects of gender in organizational justice perception. Journal of Organizational Behavior, 20, 133-143. *Leung, K., & Li, W. (1990). Psychological mechanisms of process- control effects. Journal of Applied Psychology, 75, 613-620. *Leventhal, G. S. (1976). The distribution of rewards and resources in groups and organizations. In L. Berkowitz & W. Walster (Eds.), Ad- vances in experimental social psychology (Vol. 9, pp. 91-131). New York: Academic Press. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. Gergen, M. Greenberg, & R. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27-55). New York: Plenum. Leventhal, G. S., Karuza, J., & Fry, W. R. (1980). Beyond fairness: A theory of allocation preferences. In G. Mikula (Ed.), Justice and social interaction (pp. 167-218). New York: Springer-Verlag. *Levy, P. E., & Williams, J. R. (1998). The role of perceived system knowledge in predicting appraisal reactions, job satisfaction, and orga- nizational commitment. Journal of Organizational Behavior, 19, 53-65. *Lind, E. A., Kulik, C. T., Ambrose, M. A., & de Vera Park, M. V. (1993). Individual and corporate dispute resolution: Using procedural fairness as a decision heuristic. Administrative Science Quarterly, 38, 224—251. *Lind, E. A., Lissak, R. L, & Conlon, D. F. (1983). Decision control and process control effects on procedural fairness judgments. Journal of Applied Social Psychology, 13, 338-350. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum. *Lind, E. A., Tyler, T. R., & Huo, Y. J. (1997). Procedural context and culture: Variation in the antecedents of procedural justice judgments. Journal of Personality and Social Psychology, 73, 767-780. *Lowe, R. H., & Vodanovich, S. J. (1995). A field study of distributive and procedural justice as predictors of satisfaction and organizational com- mitment. Journal of Business and Psychology, W, 99-114. *Macan, T. H., Avedon, M. J., Paese, M., & Smith, D. B. (1994). The effects of applicants' reactions to cognitive ability tests and an assess- ment center. Personnel Psychology, 47, 715-738. *Magner, N. R., Rahman, M., & Welker, R. B. (1996). The interactive effect of outcome favorability and procedural justice in work resource allocation on work performance. Journal of Applied Social Psychol- ogy, 26, 825-842. *Mansour-Cole, D. M., & Scott, S. G. (1998). Hearing it through the grapevine: The influence of source, leader-relations, and legitimacy on survivors' fairness perceptions. Personnel Psychology, 51, 25-54. *Mark, M. M. (1985). Expectations, procedural justice, and alternative reactions to being deprived of a desired outcome. Journal of Experi- mental Social Psychology, 21, 114—137. *Martin, C. L., & Bennett, N. (1996). The role of justice judgments in explaining the relationship between job satisfaction and organizational commitment. Group and Organization Management, 21, 84-104. *Martin, C. L., Parsons, C. K., & Bennett, N. (1995). The influence of employee involvement program membership during downsizing: Atti- tudes toward the employer and the union. Journal of Management, 21, 879-890. *Martin, J. E., & Peterson, M. M. (1987). Two-tier wage structures: Implications for equity theory. Academy of Management Journal, 30, 297-315. *Martocchia, J. J., & Judge, T. A. (1995). When we don't see eye to eye: Discrepancies between supervisors and subordinates in absence disci- plinary procedures. Journal of Management, 21, 251-278. Masterson, S. S., Bartol, K. M., & Moye, N. (2000, April). Interactional and procedural justice: Type versus source of fairness. Paper presented at the 15th Annual Conference of the Society for Industrial and Orga- nizational Psychology, New Orleans, LA. *Masterson, S. S., Lewis, K., Goldman, B. M., & Taylor, M. S. (2000). Integrating justice and social exchange: The differing effects of fair procedures and treatment on work relationships. Academy of Manage- ment Journal, 43, 738-748. Mathieu, J. E., & Zajac, D. M. (1990). A review and meta-analysis of the antecedents, correlates, and consequences of organizational commit- ment. Psychological Bulletin, 108, 172-195. *McFarIin, D. B., & Sweeney, P. D. (1992). Distributive and procedural justice as predictors of satisfaction with personal and organizational outcomes. Academy of Management Journal, 35, 626—637. *McFarlin, D. B., & Sweeney, P. D. (1996). Does having a say matter only if you get your way? Instrumental and value-expressive effects of employee voice. Basic and Applied Social Psychology, 18, 289-303. *Miles, J. A., & Klein, H. J. (1998). The fairness of assigning group members to tasks. Group and Organization Management, 23, 71-96. *Miller, M. L. (1989). Process and decision control in the work place: Separate effects, independence from distributive justice, and tests of explanatory mechanisms. Basic and Applied Social Psychology, 10, 337-354. META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 443 *Moorman, R. H. (1991). Relationship between organizational justice and organizational citizenship behaviors: Do fairness perceptions influence employee citizenship? Journal of Applied Psychology, 76, 845-855. *Moorman, R. H., & Blakely, G. L. (1995). Individualism-collectivism as an individual difference predictor of organizational citizenship behavior. Journal of Organizational Behavior, 16, 127-142. *Moorman, R. H., Blakely, G. L., & Niehoff, B. P. (1998). Does perceived organizational support mediate the relationship between procedural jus- tice and organizational citizenship behavior? Academy of Management Journal, 41, 351-357. *Moorman, R. H., Niehoff, B. P., & Organ, D. W. (1993). Treating employees fairly and organizational citizenship behavior: Sorting the effects of job satisfaction, organizational commitment, and procedural justice. Employee Responsibilities and Rights Journal, 6, 209-225. *Mossholder, K. W., Bennett, N., Kemery, E. R., & Wesolowski, M. A. (1998). Relationships between bases of power and work reactions: The mediational role of procedural justice. Journal of Management, 24, 533-552. *Mossholder, K. W., Bennett, N., & Martin, C. L. (1998). A multilevel analysis of procedural justice context. Journal of Organizational Behav- ior, 19, 131-141. *Moye, N. A., Masterson, S. S., & Bartol, K. M. (1997, August). Differ- entiating antecedents and consequences of procedural and interactional justice: Empirical evidence in support of separate constructs. Paper presented at the 56th Annual Meeting of the National Academy of Management, Boston, MA. *Newman, K. L. (1993). Procedural justice and ethical decision making. Social Justice Research, 6, 113-134. *Niehoff, B. P., & Moorman, R. H. (1993). Justice as a mediator of the relationship between methods of monitoring and organizational citizen- ship behavior. Academy of Management Journal, 36, 527-556. *Ogilvie. J. R. (1986). The role of human resource management practices in predicting organizational commitment. Group and Organization Stud- ies, 11. 335-359. *Olson-Buchanan, J. B. (1996). Voicing discontent: What happens to the grievance filer after the grievance? Journal of Applied Psychology, 81, 52-63. Organ, D. W. (1990). The motivational basis of organizational citizenship behavior. In L. L. Cummings & B. M. Staw (Eds.), Research in orga- nizational behavior (Vol. 12, pp. 43-72). Greenwich, CT: JAI Press. *Parker, C. P., Baltes, B. B., & Christiansen, N. D. (1997). Support for affirmative action, justice perceptions, and work attitudes: A study of gender and racial-ethnic group differences. Journal of Applied Psychol- ogy, 82. 376-389. Pillutla, M., & Murnighan, J. K. (1999). On fairness and justice in bargaining and in allocation decisions and procedures. Unpublished manuscript. *Ployhart, R. E., & Ryan, A. M. (1997). Toward an explanation of applicant reactions: An examination of organizational justice and attri- bution frameworks. Organizational Behavior and Human Decision Pro- cesses, 72, 308-335. *Ployhart, R. E., & Ryan, A. M. (1998). Applicants' reactions to the fairness of selection procedures: The effects of positive rule violations and time of measurement. Journal of Applied Psychology, 83, 3-16. *Ployhart, R. E., Ryan, A. M., & Bennett, M. (1999). Explanations for selection decisions: Applicants' reactions to informational and sensitiv- ity features of explanations. Journal of Applied Psychology, 84, 87-106. Podsakoff, P. M., MacKenzie, S. B., & Bommer, W. H. (1996). Meta- analysis of the relationships between Kerr and Jermier's substitutes for leadership and employee job attitudes, role perceptions, and perfor- mance. Journal of Applied Psychology, 81, 380-399. *Pond, S. B., Ill, Nacoste, R. W., Mohr, M. F., & Rodriguez, C. M. (1997). The measurement of organizational citizenship behavior: Are we assum- ing too much? Journal of Applied Psychology, 27, 1527-1554. *Porter, C. O. L. H., Conlon, D. E., & Barber, A. E. (1999, August). Effects of justice in salary negotiations on recruitment outcomes: A laboratory experiment. Paper presented at the 58th Annual Meeting of the Academy of Management, Chicago, IL. *Rasinski, D. A. (1990). Contextualizing procedural fairness: Factors mediating the effect of process control on leadership evaluation in organizations. Basic and Applied Social Psychology, 11, 459-477. Reichers, A. E., & Schneider, B. (1990). Climate and culture: Life cycles of constructs. In B. Schneider (Ed.), Organizational climate and culture (pp. 5-39). San Francisco: Jossey-Bass. *Richard, O. C., & Kirby, S. L. (1998). Women recruits' perceptions of workforce diversity program selection decisions: A procedural justice examination. Journal of Applied Social Psychology, 28, 183-188. Ryan, A. (1993). Justice. Oxford, England: Oxford University Press. *Sapienza, H. J., & Korsgaard, M. A. (1996). Procedural justice in entrepreneur-investor relations. Academy of Management Journal, 39, 544-574. *Scandura, T. A. (1997). Mentoring and organizational justice: An empir- ical investigation. Journal of Vocational Behavior, 51, 58-69. *Scarpello, V., & Jones, F. F. (1996). Why justice matters in compensation decision making. Journal of Organizational Behavior, 17, 285-299. *Schappe, S. P. (1998). The influence of job satisfaction, organizational commitment, and fairness perceptions on organizational citizenship be- havior. Journal of Psychology, 132, 277-290. *Schaubroeck, J., May, D. R., & Brown, F. W. (1994). Procedural justice explanations and employee reactions to economic hardship: A field experiment. Journal of Applied Psychology, 79, 455-460. *Scher, S. J. (1997). Measuring the consequences of injustice. Personality and Social Psychology Bulletin, 23, 482-497. *Schmidt, F. L., Hunter, J. E., & Outerbridge, A. N. (1986). Impact of job experience and ability on job knowledge, work sample performance, and supervisory ratings of job performance. Journal of Applied Psychol- ogy, 71, 432-439. *Schminke, M., Ambrose, M. L., & Noel, T. W. (1997). The effect of ethical frameworks on perceptions of organizational justice. Academy of Management Journal, 40, 1190-1207. *Schmitt, M. (1996). Individual differences in sensitivity to befallen in- justice (SBI). Personality and Individual Differences, 21, 3-20. *Shapiro, D. L. (1991). The effects of explanations on negative reactions to deceit. Administrative Science Quarterly, 36, 614-630. *Shapiro, D. L., & Brett, J. M. (1993). Comparing three processes under- lying judgments of procedural justice: A field study of mediation and arbitration. Journal of Personality and Social Psychology, 6, 1167- 1177. *Shapiro, D. L., Buttner, E. H., & Barry, B. (1994). Explanations: What factors enhance their perceived adequacy? Organizational Behavior and Human Decision Processes, 58, 346-368. *Skarlicki, D. P., Ellard, J. H., & Kelln, B. R. C. (1998), Third-party perceptions of a layoff: Procedural, derogation, and retributive aspects of justice. Journal of Applied Psychology, 83, 119-127. *Skarlicki, D. P., & Folger, R. (1997). Retaliation in the workplace: The roles of distributive, procedural, and interactional justice. Journal of Applied Psychology, 82, 434-443. *Skarlicki, D. P., Folger, R., & Tesluk, P. (1999). Personality as a mod- erator in the relationship between fairness and retaliation. Academy of Management Journal, 42, 100-108. *Skarlicki, D. P., & Latham, G. P. (1996). Increasing citizenship behavior within a labor union: A test of organizational justice theory. Journal of Applied Psychology, 81, 161-169. *Skarlicki, D. P., & Latham, G. P. (1997). Leadership training in organi- 444 COLQUITT, CONLON, WESSON, PORTER, AND NO zational justice to increase citizenship behavior within a labor union: A replication. Personnel Psychology, 50, 617-633. *Smith, H. J., & Tyler, T. R. (1996). Justice and power: When will justice concerns encourage the advantaged to support policies which redistrib- ute economic resources and the disadvantaged to willingly obey the law? European Journal of Social Psychology, 26, 171-200. *Smith, H. J., Tyler, T. R., Huo, Y. J., Ortiz, D. J., & Lind, E. A. (1998). The self-relevant implications of the group-value model: Group mem- bership, self-worth, and treatment quality. Journal of Experimental Social Psychology, 34, 470-493. *Smither, J. W., Reilly, R. R., Millsap, R. E., Pearlman, K., & Stoffey, R. W. (1993). Applicant reactions to selection procedures. Personnel Psychology, 46, 49-76. *Spencer, D. G. (1986). Employee voice and employee retention. Academy of Management Journal, 29, 488-502. *Sujak, D. A., Villanova, P., & Daly, J. P. (1995). The effects of drug- testing program characteristics on applicants' attitudes toward potential employment. Journal of Psychology, 129, 401-416. *Summers, T. P., & DeNisi, A. S. (1990). In search of Adams' other: Reexamination of referents used in the evaluation of pay. Human Rela- tions, 43, 497-511. *Sweeney, P. D. (1990). Distributive justice and pay satisfaction: A field test of an equity theory prediction. Journal of Business and Psychol- ogy, 4, 329-341. *Sweeney, P. D., & McFarlin, D. B. (1993). Workers' evaluation of the "ends" and the "means": An examination of four models of distributive and procedural justice. Organizational Behavior and Human Decision Processes, 55, 23-40. *Sweeney, P. D., & McFarlin, D. B. (1997). Process and outcome: Gender differences in the assessment of justice. Journal of Organizational Behavior, 18, 83-98. *Sweeney, P. D., McFarlin, D. B., & Cotton, J. L. (1991). Locus of control as a moderator of the relationship between perceived influence and procedural justice. Human Relations, 44, 333-342. *Syroit, J., Lodewijkx, H., Franssen, E., & Gerstel, I. (1993). Organiza- tional commitment and satisfaction with work among transferred em- ployees: An application of referent cognitions theory. Social Justice Research, 6, 219-234. *Tansky, J. W. (1993). Justice and organizational citizenship behavior: What is the relationship? Employee Responsibilities and Rights Jour- nal. 6, 195-207. *Tata, J., & Bowes-Sperry, L. (1996). Emphasis on distributive, proce- dural, and interactional justice: Differential perceptions of men and women. Psychological Reports, 79, 1327-1330. *Taylor, M. S., Tracy, K. B., Renard, M. K., Harrison, J. K., & Carroll, S. J. (1995). Due process in performance appraisal: A quasi-experiment in procedural justice. Administrative Science Quarterly, 40, 495-523. *Tepper, B. J., Eisenbach, R. A., Kirby, S. L., & Potter, P. W. (1998). Test of a justice based model of subordinates' resistance to downward influ- ence attempts. Group and Organization Management, 23, 144-160. Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hillsdale, NJ: Erlbaum. *Tremblay, M., Sire, B., & Pelchat, A. (1998). A study of the determinants and of the impact of flexibility on employee benefit satisfaction. Human Relations, 51, 667-688. *Truxillo, D. M., & Bauer, T. N. (1999). Applicant reactions to test score banding in entry-level and promotional contexts. Journal of Applied Psychology, 84, 322-339. *Tyler, T. R. (1987). Conditions leading to value-expressive effects in judgments of procedural justice: A test of four models. Journal of Personality and Social Psychology, 52, 333-344. Tyler, T. R. (1989). The psychology of procedural justice: A test of the group-value model. Journal of Personality and Social Psychology, 57, 830-838. Tyler, T. R. (1990). Why people obey the law: Procedural justice, legiti- macy, and compliance. New Haven, CT: Yale University Press. Tyler, T. R. (1994). Psychological models of the justice motive: Anteced- ents of distributive and procedural justice. Journal of Personality and Social Psychology, 67, 850-863. Tyler, T. R., & Bies, R. J. (1990). Beyond formal procedures: The inter- personal context of procedural justice. In J. S. Carroll (Ed.), Applied social psychology and organizational settings (pp. 77-98). Hillsdale, NJ: Erlbaum. *TyIer, T. R., & Caine, A. (1981). The influence of outcomes and proce- dures on satisfaction with formal leaders. Journal of Personality and Social Psychology, 41, 642-655. *Tyler, T. R., & Degoey, P. (1995). Collective restraint in social dilemmas: Procedural justice and social identification effects on support for author- ities. Journal of Personality and Social Psychology, 69, 482—497. Tyler, T. R., Degoey, P., & Smith, H. J. (1996). Understanding why the justice of group procedures matters: A test of the psychological dynam- ics of the group-value model. Journal of Personality and Social Psy- chology, 70, 913-930. Tyler, T. R., Lind, E. A., Ohbuchi, K. I., Sugawara, I., & Huo, Y. J. (1998). Conflict with outsiders: Disputing within and across boundaries. Per- sonality and Social Psychology Bulletin, 24, 137-146. *Tyler, T. R., Rasinski, K. A., & McGraw, K. M. (1985). The influence of perceived justice on the endorsement of political leaders. Journal of Applied Social Psychology, 15, 700-725. Tyler, T. R., Rasinski, K. A., & Spodick, N. (1985). Influence of voice on satisfaction with leaders: Exploring the meaning of process control. Journal of Personality and Social Psychology, 48, 72-81. *Van den Bos, K., Lind, F. A., Vermunt, R., & Wilke, H. A. M. (1997). How do I judge my outcome when I do not know the outcome of others? The psychology of the fair process effect. Journal of Personality and Social Psychology, 72, 1034-1046. *Van den Bos, K., Vermunt, R., & Wilke, H. A. M. (1996). The consis- tency rule and the voice effect: The influence of expectations on proce- dural fairness judgments and performance. European Journal of Social Psychology, 26, 411-428. *Van den Bos, K., Vermunt, R., & Wilke, H. A. M. (1997). Procedural and distributive justice: What is fair depends more on what comes first than on what comes next. Journal of Personality and Social Psychology, 72, 95-104. *Van den Bos, K., Wilke, H. A. M., & Lind, E. A. (1998). When do we need procedural fairness? The role of trust in authority. Journal of Personality and Social Psychology, 75, 1449-1458. *Van Dierendonck, D., Schaufeli, W. B., & Buunk, B. P. (1998). The evaluation of an individual burnout intervention program: The role of inequity and social support. Journal of Applied Psychology, 83, 392- 407. *Vecchio, R. P., Griffeth, R. W., & Horn, P. W. (1986). The predictive utility of the vertical dyad linkage approach. Journal of Social Psychol- ogy, 126, 617-625. *Vermunt, R., Blaauw, F., & Lind, E. A. (1998). Fairness evaluations of encounters with police officers and correctional officers. Journal of Applied Social Psychology, 28, 1107-1124. Viswesvaran, C., & Ones, D. S. (1995). Theory testing: Combining psy- chometric meta-analysis and structural equations modeling. Personnel Psychology, 48, 865-885. *Wanberg, C. R., Bunce, L. W., & Gavin, M. B. (1999). Perceived fairness of layoffs among individuals who have been laid off: A longitudinal study. Personnel Psychology, 52, 59-84. Wanous, J. P., Sullivan, S. F., & Malinak, J. (1989). The role of judgment calls in meta-analysis. Journal of Applied Psychology, 74, 259-264. META-ANALYTIC REVIEW OF ORGANIZATIONAL JUSTICE 445 *Weaver, G. R., & Conlon, D. E. (1997, August). Explaining broken promises: Timing, justice effects, and behavioral outcomes. Paper pre- sented at the 57th Annual Meeting of the Academy of Management, Boston, MA. *Welbourne, T. M., Balkin, D. B., & Gomez-Mejia, L. R. (1995). Gain- sharing and mutual monitoring: A combined agency-organizational jus- tice interpretation. Academy of Management Journal, 38, 881-899. *Wesolowski, M. A., & Mossholder, K. W. (1997). Relational demography in supervisor-subordinate dyads: Impact on subordinate job satisfaction, burnout, and perceived procedural justice. Journal of Organizational Behavior, 18, 351-362. *White, M. M., Tansky, J. A., & Baik, K. (1995). Linking culture and perceptions of justice: A comparison of students in Virginia and South Korea. Psychological Reports, 77, 1103-1112. Whitener, E. M. (1990). Confusion of confidence intervals and credibility intervals in meta-analysis. Journal of Applied Psychology, 75, 315-321. Williams, L. J., & Anderson, S. E. (1991). Job satisfaction and organiza- tional commitment as predictors of organizational citizenship and in-role behaviors. Journal of Management, 17, 601-617. Received August 23, 1999 Revision received May 12, 2000 Accepted May 15, 2000 Members of Underrepresented Groups: Reviewers for Journal Manuscripts Wanted If you are interested in reviewing manuscripts for APA journals, the APA Publications and Communications Board would like to invite your participation. Manuscript re- viewers are vital to the publications process. As a reviewer, you would gain valuable experience in publishing. The P&C Board is particularly interested in encouraging members of Underrepresented groups to participate more in this process. If you are interested in reviewing manuscripts, please write to Demarie Jackson at the address below. Please note the following important points: • To be selected as a reviewer, you must have published articles in peer-reviewed journals. The experience of publishing provides a reviewer with the basis for preparing a thorough, objective review. • To be selected, it is critical to be a regular reader of the five to six empirical jour- nals that are most central to the area or journal for which you would like to review. Current knowledge of recently published research provides a reviewer with the knowledge base to evaluate a new submission within the context of existing re- search. • To select the appropriate reviewers for each manuscript, the editor needs detailed information. Please include with your letter your vita. In your letter, please iden- tify which APA journal(s) you are interested in, and describe your area of exper- tise. Be as specific as possible. For example, "social psychology" is not suffi- cient—you would need to specify "social cognition" or "attitude change" as well. • Reviewing a manuscript takes time (1-4 hours per manuscript reviewed). If you are selected to review a manuscript, be prepared to invest the necessary time to evaluate the manuscript thoroughly. Write to Demarie Jackson, Journals Office, American Psychological Association, 750 First Street, NE, Washington, DC 20002-4242. 
work_cxxhkujjyffs5hhkzwuv4igx6m	----	Power, Justice, and the Environment: A Critical Appraisal of the Environmental Justice Movement A 616 VOLUME 114 | NUMBER 10 | October 2006 • Environmental Health Perspectives Power, Justice, and the Environment: A Critical Appraisal of the Environmental Justice Movement Edited by David Naguib Pellow and Robert J. Brulle Cambridge, MA:MIT Press, 2005. 339 pp. ISBN: 0-262-16233-4, $25 Over the past 18 years, hundreds of books have been published on the envi- ronmental justice movement (EJM); however, this is one of the first books to initiate a comprehensive dialogue that cri- tiques strategies, tactics, and discursive frames; examine issues of organizational struc- ture, governance, and resource base; assess goals and outcomes; and pose questions challenging academics and activists to consider where the movement has been and where it may go. The EJM—which emerged in the late 1980s from struggles within communities of color and low-income communities that have been dis- proportionately affected by pollution—is characterized by editors Pellow, an activist–scholar who has published widely on EJ, and Brulle, an associate professor of environmental policy, as “a political response to the deterioration of the conditions of everyday life as society reinforces existing social inequities while exceeding the limits to growth. Thus the EJM laid a foundation for environmental and social justice politics in the twenty-first century.” The heart and strength of these essays by academics, EJ practition- ers, and advocates is the challenge to engage foundational concepts of the EJM that most serious observers and activists have been loath pub- licly to address. Yet 15 years since the historic first People of Color Environmental Leadership Summit, one reads this assessment and analy- sis and wonders why it has taken so long to begin this important inquiry. The editors’ opening chapter succinctly summarizes literature on inequality, social justice movements, and environmental degradation, and presents provocative conclusions. Although Pellow and Brulle note that the EJM has affected the direction of environmental policy, research, and activism and that the EJM has had its “clearest victories” leading local community struggles, they question whether the EJM has achieved its goals and conclude that the “outlook is not positive.” They issue a chal- lenge, echoed by the authors, to the EJM to “complement its well-honed acumen for opposition to unsustainable projects to a concrete vision and plan of action for construction and protection of sustainable com- munities”—a challenge that is being met by many EJ organizations. The collection, targeted to scholars, theorists, practitioners, and activists, has three sections. In the first, “Environmental Quality and Justice: Progress or Retreat?” Bryant and Hockman compare the Civil Rights and EJ movements. Some chapters break the chain of synergy and some authors’ conclusions contradict others, but Benford’s “Half-Life of the Environmental Justice Frame: Innovation, Diffusion, and Stagnation” complements other authors in this book with his provocative argument that the “EJ frame suffers from stagnation as a result of its dif- fuse conceptualization, the many issues it seeks to address, the subordina- tion of environmentalism to human justice, and its failure to embrace and articulate revolutionary solutions.” His argument needs more research and documentation to bolster his conclusion that the EJM’s “power lies in its capacity to disrupt the system rather than to reform it.” Section 2, “New Strategies for Achieving Environmental Justice,” focuses on energy activism, sustainable and just food systems, case stud- ies of collaborative problem solving, and research findings that the gov- ernance structure of EJ groups does not reflect its democracy frame. Brown offers lay-driven efforts to reframe social conceptions of health through the asthma/air quality paradigm, and Targ argues for a state- level comprehensive approach to EJ to address issues and approaches across agency jurisdictions. Pena urges that the EJM advance “explo- ration of autonomy”—self-governance of environmental management in local places—versus the struggle against “toxic racism and its rampant inequalities of place and power.” The third section, “Environmental Justice and the Challenge of Globalization,” highlights South African perspectives, global activism initiatives, and the contrast between the goal of environmental sustain- ability, management of natural resources, and that of the EJM, human justice, wherein the natural environment is important only “inasmuch as it can be seen in terms of human justice.” Brulle and Pellow conclude by advising EJ scholars to balance docu- mentation of problems with a solution orientation, provide a stronger class analysis, and heed more of the links between EJ research and the literature on social movements. They warn EJ activists that forging a national agenda could deprioritize grassroots base building and that the divide between mainstream environmental groups and the EJM must be addressed more productively. They advise EJ groups to build a greater indigenous base of financial support and to appeal to a broader base of the population by addressing its race-based focus to be more inclusive of class, gender, working-class whites, and nation inequalities. This book asks serious questions that have been raised by the EJM itself and continue to challenge its activists. Although this collection can be fascinating, there are some facile recommendations and observations made without sound basis. Nevertheless, this book is a vital addition to the liter- ature, and it catalyzes a critical dialogue on our environmental future. PEGGY SHEPARD Peggy Shepard is co-founder and executive director of West Harlem Environmental Action, founded in 1988 to improve environmental protection, health, and policy in communities of color. She is a member of the National Institute of Environmental Health Sciences Public Interest Liaison Advisory Group, and for- mer chair, U.S. Environmental Protection Agency’s National Environmental Justice Advisory Council. Announcements Book Review Announcements New Books A Theory of General Ethics: Human Relationships, Nature, and the Built Environment Warwick Fox Cambridge, MA:MIT Press, 2006. 400 pp. ISBN: 0-262-06255-0, $68 Analyzing International Environmental Regimes Helmut Breitmeier, Oran R. Young, Michael Zürn Cambridge, MA:MIT Press, 2006. 336 pp. ISBN: 0-262-02602-3, $67 Bilateral Ecopolitics Philippe Le Prestre, Peter Stoett Williston, VT:Ashgate Publishing, 2006. 306 pp. ISBN: 0-7546-4177-5, $99.95 Environmental Health in Central and Eastern Europe K.C. Donnelly, Leslie H. Cizmas, eds. New York:Springer, 2006. 249 pp. ISBN: 1-4020-4844-0, $119.00 Environmental Principles and Ethics Ming H. Wong, Frank W.K. Lee, Martin K.F. Fung Hackensack, NJ:World Scientific Publishing Co., 2006. 240 pp. ISBN: 981-256-838-7, $48 Governing Environmental Flows Gert Spaargaren, Arthur P.J. Mol, Frederick H. Buttel, eds. Cambridge, MA:MIT Press, 2006. 392 pp. ISBN: 0-262-69335-6, $27 Governing Global Desertification: Linking Environmental Degradation, Poverty and Participation Pierre Marc Johnson, Karel Mayrand, and Marc Paquin Williston, VT:Ashgate Publishing, 2006. 312 pp. ISBN: 0-7546-4359-X, $99.95 Noxious New York: The Racial Politics of Urban Health and Environmental Justice Julie Sze Cambridge, MA:MIT Press, 2006. 296 pp. ISBN: 0-262-19554-2, $60 Precautionary Politics: Principle and Practice in Confronting Environmental Risk Kerry H. Whiteside Cambridge, MA:MIT Press, 2006. 208 pp. ISBN: 0-262-23255-3, $50 Sustainability, Civil Society and International Governance John J. Kirton, Peter I. Hajnal Williston, VT:Ashgate Publishing, 2006. 422 pp. ISBN: 0-7546-3884-7, $114.95 The Environment in Asia Pacific Harbours Eric Wolanski New York:Springer, 2006. 497 pp. ISBN: 1-4020-3654-X, $209 A rn o ld G re en w el l/E H P 
work_czefli22uzhlbi32pc4onk236m	----	Microsoft Word - O'Boyle+with+mcj+editsREVISEDv SOCIAL JUSTICE: ADDRESSING THE AMBIGUITY by Edward J. O’Boyle, Ph.D. Senior Research Associate Mayo Research Institute A somewhat different version of this paper was published in Logos: A Journal of Catholic Thought and Culture, Volume 14, Number 2, Spring 2011. To retrieve the published article, go to www.stthomas.edu/cathstudies/Logos Questions and comments should be directed to: Edward J. O’Boyle, Ph.D. Mayo Research Institute www.mayoresearch.org 1217 Dean Chapel Road, West Monroe, Louisiana 71291 USA Tel: 318/396-5779 E-mail: edoboyle@earthlink.net 2 Social justice is a concept used widely but with different meanings for different users. Fifty years ago Raymond Jancauskas observed that the concept is “vague and ill-defined.” 1 Thirty years later William Waters added that it is “a very helpful but ambiguous term.” 2 Twenty years after Waters’s comment, Rupert Ederer stated that social justice has been reduced to “simply a slogan.” 3 In addition to the different meanings applied to the term, two other sources of ambiguity exist. First, social justice is referred to under at least three other labels: constructive justice, 4 legal justice, 5 and general justice. 6 Second, some ambiguity originates in careless scholarly work. Two examples illustrate this point. In the first instance, Pius XI in his 1937 encyclical Divini redemptoris demonstrates the connection between social justice and the common good. The Vatican website renders that connection in the English version of the encyclical as follows. “Now it is of the very essence of social justice to demand for each individual all that is necessary for the common good” (emphasis added). 7 However, carefully translating the Latin version from the same website into English produces the following. “Now it is of the very essence of social justice to demand from each individual all that is necessary for the common good” (emphasis added). 8 This latter rendering is found in The Encyclicals of a Century 9 where the full text and footnotes of Divini redemptoris are printed and twice in Bernard Dempsey’s influential The Functional Economy. 10 Clearly, “for” indicates a right of the individual whereas “from” signifies a duty. In the second instance, Dempsey attributes the latter rendering correctly to Divini redemptoris in one place 11 but incorrectly to Quadragesimo anno in another. 12 Further, Waters in 3 citing Arnold McKee refers to social justice “in the broad sense” and “in the narrow sense” and recommends McKee to the reader for “an excellent introduction to the subject.” 13 McKee, however, refers to justice -- not social justice -- “in a narrow sense” and “a wide sense.” 14 The line between social justice and social charity is confused and adds to the ambiguity when solidarity is substituted for social charity. Further documenting the various sources of confusion and ambiguity does nothing more than add to these problems. For that reason it makes much more sense to begin with a clear definition of justice and how it applies to economic affairs through three principles: commutative justice, distributive justice, and contributive justice. A clear understanding of these three principles will help remove the ambiguity associated with social justice because, as we intend to demonstrate, all three are necessary for practicing social justice and attaining the common good in that they promote the trust required of human beings in the conduct of everyday economic activities. We will then further clarify charity, social charity and solidarity. Justice Justice is the virtue or good habit of rendering to another that which is owed. This definition closely parallels the version recommended by Aquinas, underscores justice as an obligation or duty and provides additional support for translating the sentence referenced above from Divini Redemptoris as “from each individual.” 15 Having said that, we do well to acknowledge that every duty has a corresponding right. 16 To illustrate, if the buyer has a duty to pay for what he wants or needs, he has a right to that for which he has paid. If the worker has a duty to put in a full day’s work, she has a right to a full day’s pay. Given that the individual has a duty to contribute all that is necessary for the common 4 good and that the common good is served only through such individual contributions, it follows that the individual also has a right to whatever goods are necessary to live in common. Hereafter, we will use “person” instead of “individual” because in mainstream economics “individual,” strictly speaking, encompasses only human individuality, whereas in personalist economics “person” includes both human sociality and human individuality and by definition human sociality is a requirement for living in community. At times social justice is confused with commutative justice and distributive justice. 17 For that reason, it is instructive to turn our attention briefly to those two forms of justice. Commutative justice sets forth the duty of buyer to seller in the marketplace and worker to employer in the workplace. Distributive justice defines the duties of the superior to subordinates whether that interaction takes place in the marketplace or the workplace. However, to understand both types, we must address economic gain. Economic Gain Every exchange involving economic agents who are well-informed and free to act entails gain for the parties involved: What is gotten in the exchange is more highly valued than what is given up. For example, a person shopping for shoes comes across a pair priced at $118. In deciding whether to purchase those shoes that person routinely asks the question, “Are these shoes really worth $118 to me?” If the answer is affirmative, that person purchases the shoes. If the answer is negative, the buyer turns away. If that person is not sure, he or she turns away but may return later to buy the shoes provided they really are worth $118. Economics differentiates between exchange value and use value. Exchange value is what is given up for the good or 5 service acquired through exchange. Use value is what is gotten, that is, the usefulness of the good or service to the person who acquires it. Under competitive market conditions, exchange value should not vary from one person to the next. The price paid for the same dog food in a supermarket is the same for everyone buying that brand of dog food at that store. However, use value is not the same for everyone who buys that dog food because some persons are more deeply attached to their dogs and derive greater pleasure from feeding and caring for them than do others. While exchange value is determined by market conditions at the time and place of the exchange, use value is determined by the value systems of the uniquely different persons involved in the exchange. Exchange value is an objective piece of information. Use value, on the other hand, is a subjective human experience. For every person involved, use value (what is gotten) must be greater than exchange value (what is given up). Without that gain, the exchange cannot be carried out. In the workplace, when the baker hires a sales clerk to tend to customers both parties gain something. The baker gets the clerk’s labor services that are more useful to the baker than the wages that must be paid, thereby adding to the baker’s profits. Without that gain, the baker could not afford to hire the sales clerk. At the same time, the clerk contributes labor services because the wages paid are more useful than the time and effort involved in working. Without that gain, the clerk would not accept the job. In the marketplace, the baker produces more loaves of bread than can be used for personal consumption, and sells them provided what is gotten (the price paid by the customer) is more useful than what is given up (the cost to produce the bread), thereby adding to the baker’s profits. Without that gain, the baker has no incentive to produce and to sell bread. At the same 6 time, the baker’s customer who does not bake bread, or does not make it as well or as inexpensively, buys from the baker because the bread that is gotten is more useful than the money given up. The gain achieved by the consumer can be saved or applied to buying other things that the customer wants or needs. A bargain is an exchange in which the consumer’s gain is greater than initially expected. Commutative Justice Commutative justice states that buyer and seller in the marketplace and worker and employer in the workplace have two duties that are binding on both parties. First, they are to exchange things of equal value. Second, they are to impose equal burdens on one another. Because of this emphasis on equal value and equal burdens, many call commutative justice “equivalence.” Personal experience usually informs us as to what equal value means. By equal burden we mean that the burden of the seller is to give up possession of the good or service in question. For the buyer, the burden is to give up possession of the money necessary to buy and take possession of that good or service. For the worker, the burden is performing the work required by the employer. For the employer, the burden is paying the worker the wage to which they agreed. At first glance, exchanging things of equal value implies that there is no gain involved. On closer examination we see that this is not the case. Exchanging things of equal value means that what is exchanged is of equal exchange value, not equal use value. As we indicated previously, exchange value refers to the price paid to purchase a good or service and the wage or price paid to hire a worker or natural resource to produce that good or service. Use value is what is gotten, that is the usefulness of the good or service or resource to the person who acquires it. 7 There are several specific ways in which commutative justice may be violated in the marketplace: shoplifting, issuing a bad check, loan sharking, and price gouging to name a few. Commutative justice may be violated in the workplace as well: for instance, through expense padding, sweatshops, embezzlement, pilfering and featherbedding. All violate commutative justice either regarding the duty to exchange things of equal value or to impose equal burdens on one another. Distributive Justice Distributive justice defines the duties of the superior to subordinates. In the workplace, distributive justice requires the superior to distribute the benefits and burdens of the group under supervision among its members in some generally equal fashion. This does not mean strictly equal, because significant differences are likely among subordinates, and it is entirely appropriate to consider those differences. For example, handicapped employees may require different parking and restroom accommodations than able-bodied employees. Single parents in general shoulder heavier childcare responsibilities than married parents. Distributive justice demands that the superior differentiate among subordinates only when the differences among them are real and substantial and require different arrangements. A superior may allow a single parent to rush home to tend to a sick child when the same permission might not be given to a married worker with a spouse who routinely stays at home to look after the children. We mention two noteworthy violations of distributive justice: discrimination and kickbacks. Discrimination occurs when the superior differentiates among subordinates for reasons that are insubstantial. In this regard, false stereotyping may be the device used to rationalize the difference in treatment among subordinates. For example, older workers may be 8 treated differently because (according to the stereotyped view held by the employer) they are seen to have “less upside potential” than younger workers. Another form of discrimination would be to treat women differently because according to the false stereotype imposed by the employer work for them is deemed to be of secondary importance in their lives. Favoritism is the other side of the coin of discrimination: treating some better than others for reasons that are superficial or based on the false stereotyping of others. A kickback is the ethical equivalent of a bribe. A bribe is a payment to a superior in the expectation of special treatment. The payment precedes the special treatment. A kickback is a payment for special treatment wherein the payment follows the special treatment. A contractor bribing a provincial highway official in order to influence that official’s decision as to which contractor is to be awarded a construction contract makes payment beforehand. A contractor kicking back to a highway official promises beforehand to make payment after the deal has been closed. Distributive justice has application in the marketplace too, but here the issues are not nearly as serious as in the workplace. In the marketplace, it is the merchant who is the superior because of the obligation to treat customers with fairness. This is done in several ways. A merchant who makes rain checks available is saying in effect that when an item is put on sale at a very favorable price, all customers are treated alike, even those who come to the store after the supply of that item has been exhausted. Under those circumstances, the merchant reorders the item in such quantities to satisfy all customers who have been issued a rain check. “Limit 3 to a customer” tells all customers that everyone is entitled to purchase no more than three of a specific item on sale so that one customer will not buy the entire available supply. “Sale price 9 effective as long as supplies last” tells customers when the item is put on sale that customers who delay in coming to the store may be disappointed in finding that the item has been sold out. The key to understanding all such practices is that while the specific terms of sale differ, once a specific practice is put in place there is no difference in the way those terms are applied, no matter the customer. This meets the merchant’s obligations under distributive justice. Further, though some customers may not be able to take advantage of the favorable opportunities afforded by the merchant (for any number of reasons including lack of transportation, being away at the time of the sale, or inability to travel to the store), the merchant’s duties under distributive justice extend only to those who actually enter the store. The merchant must have made an effort to properly inform customers of sale opportunities and to maintain the usual store operating hours. Contributive Justice Contributive justice asserts that insofar as a person receives benefits from a group, that person has a duty to maintain and support the group. Paying dues -- a duty -- is the usual requirement for the persons joining and remaining active in a membership organization. Failure to pay membership dues typically reduces a person to inactive membership status enjoying fewer benefits. as compared to those in good standing. Of the three principles of economic justice, contributive justice is least familiar to Americans, because many Americans think first and foremost in terms of human individuality and have a high regard for “rugged individualism.” For that reason, we have only weak examples of common expressions for contributive justice in the workplace and the marketplace. 10 In the workplace, where employees commonly work in groups or teams, expressions such as “doing my fair share,” “pulling my load,” and “paying my dues” are common. There are even greater problems in seeing contributive justice faithfully practiced in the marketplace. Even so, there are certain expectations when persons come together whether for a concert, ball game, or to enter a flow of traffic. The newest arrival in a ticket line or traffic line is expected to wait his turn and not cut into the line. To do otherwise is disrespectful of those who have been waiting and sets an example for others to do the same in which case pushing, shoving, and cutting off other cars may become the rule rather than the exception. A general loss of civility may follow that is destructive to our sense of community. When it comes to violations of contributive justice, however, the marketplace and the workplace offer several powerful examples. In the workplace, industrial spying and sabotage violate contributive justice because the person who appears to be a loyal and productive member of one business establishment actually is faithful to a rival organization and seeks to undermine the effectiveness of the first establishment by stealing secrets and by disrupting its work. Is it a violation to hire a person from a rival establishment and pick her brain for whatever information she might be able to share with the new employer? It is if that person surrenders proprietary information, information to which the former employer can claim a clear property right (such as a secret formula for making a product). Other prominent examples of violations of contributive justice would include computer tampering, tax evasion, 18 product tampering, and insider trading. Limits on Economic Gain Limits on the amount of economic gain are necessary to prevent one party from taking advantage of another and to assure that market exchange serves everyone fairly and effectively. 11 Those limits derive from the duties that economic agents owe one another under commutative justice, distributive justice, and contributive justice. Commutative justice limits ill-gotten or excessive gain because what is gotten and what is given up in the exchange are what were freely and openly agreed to before the exchange took place. For example, the ill-gotten gain for the employer who operates a sweatshop is the added profits from denying workers what is due them. The ill-gotten gain for the employee who embezzles is money that rightfully belongs to the employer. Distributive justice limits ill-gotten gain because the superior assures that what is gotten and what is given up are the same for everyone in the same or similar circumstances. To illustrate, the ill-gotten gain for the employer who pays some workers less than others for the same work is the added profits gotten through discrimination. The ill-gotten gain for the public official who has been bribed to award a contract for a clearly substandard proposal is the money which that official has gotten dishonestly. Contributive justice limits excessive gain because each member gives up (contributes) what is necessary to maintain the group provided what is gotten by that member is the same or similar to what is gotten by other members of the group. The ill-gotten gain for the inside trader comes at the expense of persons who sell shares that the inside trader knows are undervalued or who buy shares that the insider knows are overvalued. The ill-gotten gain in industrial spying is the property that rightfully belongs to someone else. Social Justice The emphasis in contributive justice on the duty of the member to the group and the duty of the person under social justice to contribute to the common good suggest that social justice 12 and contributive justice are identical. Dempsey holds this view and asserts that Heinrich Pesch does too. 19 And apparently, Benedict XVI holds this view as well. 20 However, before addressing social justice further, we insist that contributive justice, while it can be described and examined separately from commutative justice and distributive justice, cannot be separated in the actions of a truly just person. In economic affairs a person cannot serve justice without being faithful to all three at once. Recall for a moment the language of Divini redemptoris. “Now it is of the very essence of social justice to demand from each individual all that is necessary for the common good.” 21 As stated previously, if a person has a duty to contribute all that is necessary for the common good he also has a right to whatever goods are necessary to live in common. Trust is one of the goods necessary to live in common and trust is maintained only through the faithful practice of commutative justice and distributive justice in addition to contributive justice. Benedict XVI states unequivocally that today trust “has ceased to exist” in the market economy. 22 Simply put, commutative justice, distributive justice, and contributive justice are a package deal. Practicing social justice means practicing all three. Thus, at all times and in all places, social justice requires precisely this: all that is necessary for the common good. Living in common means living in a complex network of intertwined communities: family, workplace, neighborhood, church, civic organization, trade association, city, province, nation-state, all nations. Each one brings different duties and different rights, and those duties and rights vary depending on the condition of the person in areas such as health, economic means, and so on. Moreover, the duties and rights are not of the same significance. To illustrate, 13 relationships of care within a family are more significant than the duties and rights of membership in a civic organization. Acknowledging our participation in these networks illuminates two points. First, a person has a duty to contribute to whatever elements he or she belongs to, say family, workplace, and nation-state, and a corresponding right to whatever goods are produced in common by those elements. Second, more comprehensive elements in the social order have a duty according to the principle of subsidiarity not to interfere in the production of less comprehensive elements and to help those less comprehensive elements produce more effectively. Thus the goods produced in common should be produced by the smallest element possible in order to position production as close as possible to the family and its members so as to better assure that the goods produced in common are available to meet the needs of human beings as persons and to contribute to their proper development. In this scheme a strong preference for action is taken first by private organizations and then by public agencies but only after those agencies have offered assistance and those private organizations still are not operating effectively. Put differently, the common good does not always require goods produced by public agencies. For this kind of decentralized, bottom-up social organization to produce effectively, trust is necessary across a network of communities that as we already observed requires the faithful practice of commutative justice, distributive justice, and contributive justice, the three constituent parts of social justice. Social justice and subsidiarity work together toward the common good 14 that includes the production of the goods necessary to live in common as well as the moral good through which the dignity of the human person is respected. Two examples help to demonstrate the connection between social justice and subsidiarity. If cities in general are capable of dealing with the sanitation needs of the community, the persons living in those cities have a duty to pay the taxes or fees to support municipal sanitation systems and a right to access those systems. The provincial or federal government has no justification for taking over municipal sanitation systems provided the cities are operating those systems effectively, though the provincial or federal government might be of assistance by offering grants to upgrade wastewater treatment facilities. In this example, the common good is served by the production of public goods at the local level. Public education at the elementary and secondary levels for years has been largely a local matter though often with financial assistance from both state and federal government and subject to court-ordered desegregation. In some instances, states have taken over control when a school has failed in its primary instructional mission. Even so, there are no examples of direct and total federal takeover; rather reform more often has placed control of failing schools in the hands of other officials through the establishment of charter schools and has allowed parents to remove their children from failed schools by granting vouchers to make attending private schools more affordable. In this example, there is a public consensus, perhaps not as strong as years ago, that the common good is served by locating and retaining control of public education principally at the local level. From its beginnings in the 1930s, the basic design and management of unemployment insurance have been a state government responsibility. Though some persons and organizations 15 at that time urged making UI a federal program, the arrangement allowed each state to customize UI to its own unique economic conditions and the values of its employers and workers regarding the needs to be met through UI benefits and the burdens to be shouldered through UI taxes. From time to time, it has been necessary for the federal government to intervene when too many of the unemployed were exhausting their benefits and states could not bear the full cost of paying extended benefits from their depleted trust funds. These interventions have been restricted to financial support. They never have involved a federal takeover of a state program even in the most recent recession where benefits have been extended beyond the usual 26 weeks payable by the states to 99 weeks payable by the federal government. In this example, the common good is served by keeping control of programs of aid to the unemployed mainly at the state level. Needs, Charity, Social Charity, Solidarity Common needs are needs that are “common to all members of the community” (emphasis added). 23 Accordingly, the common good involves providing for those common needs. Citing Gaudium et spes, Benedict in Caritas in veritate puts it this way: “Beside the good of the individual, there is a good that is linked to living in society: the common good. It is the good of ‘all of us,’ made up of individuals, families and intermediate groups who together constitute society.” 24 Even so, not all human needs are common needs. Since each human being is unique, each has needs and wants that strictly speaking are personal and satisfied by specific goods. (We will shortly take up the difference between needs and wants.) Dempsey calls these goods elementary goods. 25 As a personalist espousing an economics in which the economic agent is represented as a person, we prefer to call them personal goods. 16 Accepting subsidiarity as a governing organizational principle, it follows that the common good is served first by private goods and then by public goods as necessary. By demanding “all that is necessary for the common good,” social justice is served at times by public goods but preferentially by private goods. Two key problems remain. What should be done when the economic system does not produce all that is necessary for the common good? What should be done when it does not produce all of the necessary personal goods? The first is a problem of production, the second a problem of distribution. The production problem requires an ongoing public discourse on the very structure of our economic institutions, especially the role of private enterprises vs. public agencies in the process of production. The solution might lie in public agencies offering private enterprises assistance to produce the goods necessary to serve the common good. Or, it might involve public agencies taking on a more aggressive regulatory role. It might extend to direct government control of private enterprises, ownership of those enterprises or both. Alternatively, it could involve deregulation and privatization in order to free private enterprises from a government sector that has grown too large to be effective. Subsidiarity can be helpful in this discourse. Even so, the discourse can run on for years as it has in the United States regarding the health care system In an economy such as the United States that produces goods of all kinds in abundance, an insufficiency of personal goods is not a production problem, nor is it a social justice problem. It is instead a distribution problem, a problem of insufficiency or poverty. As so ably demonstrated by the likes of Blessed Mother Teresa and her community of nuns, relieving this insufficiency often is prompted by the theological virtue of charity “by which we love God 17 above all things for his own sake, and our neighbor as ourselves for the love of God.” 26 At the same time, the natural virtue of caring infused with the conviction that every human being is precious motivates many others to alleviate the very same insufficiency. The use of the term social charity creates additional confusion because that term is ambiguous. Does it refer to the theological virtue of charity or the natural virtue of caring? We take up that question after the following two comments on poverty that may help us sort through some of the ambiguity regarding social justice. As noted previously, it is important to differentiate human needs from human wants. Poverty is an issue of unmet human needs such as food and clothing. It is not a matter of unsatisfied human wants such as vacations and luxury cars. Subsidiarity plays a role here just as we observed in the case of social justice. Intervention by private organizations such as faith-based neighborhood groups that provide assistance to persons and families with unmet personal needs is preferred when and if they are positioned closer to those seeking assistance and therefore are better able to differentiate between an unmet need and an unsatisfied want and to identify a false claim for assistance. We turn next to the meaning of solidarity and how it relates to charity. In Rerum novarum, 27 Pope Leo XIII referred to the family as “part of the commonwealth” and made clear that Christians are expected to help any family in need as “a duty, not of justice (save in extreme cases), but of Christian charity -- a duty not enforced by human law.” 28 Here the Holy Father clearly means the theological virtue. According to Ederer, the term “social charity” originated in section 88 of Quadragesimo anno. 29 By this, Pope Pius XI meant neither the theological virtue nor caring. Rather, the 18 Pontiff’s intent was to identify it with solidarity. To underscore this important point, Ederer asserts that the concept of solidarity was developed at length by Pope John Paul II in Sollicitudo rei socialis and identified with social charity in Centesimus annus. 30 In Sollicitudo rei socialis John Paul says that there is a “growing awareness of interdependence among individuals and nations,” a transformation that is acquiring a moral connotation . . . . When interdependence becomes recognized in this way, the correlative response as a moral and social attitude, as a “virtue,” is solidarity. This then is not a feeling of vague compassion or shallow distress at the misfortunes of so many people, both near and far. On the contrary, it is a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all. This determination is based on the solid conviction that what is hindering full development is [the] desire for profit and [the] thirst for power . . . 31 And shortly thereafter, he continues: it has been possible to identify many points of contact between solidarity and charity, which is the distinguishing mark of Christ’s disciples. In the light of faith, solidarity seeks to go beyond itself, to take on the specifically Christian dimension of total gratuity, forgiveness and reconciliation. One’s neighbor is then not only a human being with his or her own rights and a fundamental equality with everyone else, but becomes the living image of God the Father, redeemed by the blood of Jesus Christ and placed under the permanent action of the Holy Spirit. One’s neighbor must therefore be loved, even if an enemy, with the same 19 love with which the Lord loves him or her; and for that person’s sake one must be ready for sacrifice, even the ultimate one: to lay down one’s life for the brethren. 32 Support for Ederer’s claims are found in Centesimus annus. In this way what we nowadays call the principle of solidarity, the validity of which both in the internal order of each nation and in the international order I have discussed in the Encyclical Sollicitudo rei socialis, is clearly seen to be one of the fundamental principles of the Christian view of social and political organization. This principle is frequently stated by Pope Leo XIII, who uses the term “friendship,” a concept already found in Greek philosophy. Pope Pius XI refers to it with the equally meaningful term “social charity.” Pope Paul VI, expanding the concept to cover the many modern aspects of the social question, speaks of a “civilization of love.” 33 In Caritas in veritate, Benedict employs “solidarity” frequently and attributes it to John Paul. 34 He does not use the term “social charity.” He uses “social justice” only once by which he apparently and unfortunately, for purposes of the present argument, means contributive justice. 35 Even so, Benedict offers the following insight to clarify the difference between justice and solidarity both of which are directed toward the common good. In the global era, economic activity cannot prescind from gratuitousness, which fosters and disseminates solidarity and responsibility for justice and the common good among different economic players. It is clearly a specific and profound form of economic democracy. Solidarity is first and foremost a sense of responsibility on the part of everyone with regard to everyone, and it cannot therefore be merely 20 delegated to the State. While in the past it was possible to argue that justice had to come first and gratuitousness could follow afterwards, as a complement, today it is clear that without gratuitousness, there can be no justice in the first place. What is needed, therefore, is a market that permits the free operations, in conditions of equality opportunity, of enterprises in pursuit of different institutional ends. Alongside profit-oriented private enterprise and the various types of public enterprise, there must be room for commercial entities based on mutualist principles and pursuing social ends to take root and express themselves. It is from their reciprocal encounter in the marketplace that one may expect hybrid forms of commercial behaviour to emerge, and hence an attentiveness to ways of civilizing the economy. Charity in truth, in this case, requires that shape and structure be given to those types of economic initiative which, without rejecting profit, aim at a higher goal than the mere logic of the exchange of equivalents, of profit as an end in itself. 36 Benedict also calls attention to the close linkage between subsidiarity and solidarity: “the former without the latter gives way to social privatism, while the latter without the former gives way to paternalist social assistance that is demeaning to those in need.” 37 Three general comments regarding profits and Catholic social thought must be added here. First, a commercial enterprise operating in a market system requires profits as a condition of survival. Nothing in Catholic social thought can or should force the owners of a failed enterprise to continue operating at a loss. Second, profits earned honestly through faithful compliance with the demands of the three principles of economic justice are the “stuff” that 21 makes gratuitousness possible. Catholic social thought can and should remind Catholics and others often and with conviction that profits are not an end in themselves, that they are to be freely shared with others. Third, Catholic social though can and should boldly inform economics that its insistence on teaching the profit maximization principle and that profits are the sole objective of a commercial enterprise in a market system are directly at odds with gratuitousness that is necessary for justice, solidarity, and the common good. 39 Final Remarks We began this article with the purpose of reducing the ambiguity surrounding social justice. We have argued that practicing social justice means practicing all three types of justice relevant to economic affairs: commutative justice, distributive justice, and contributive justice. All three are necessary for the common good, because all three foster the trust required for human beings to carry out their everyday economic activities in common. To some, as Ederer warns, social justice is just a slogan. 38 Whatever ambiguities remain, we have argued that social justice is indeed not a mere slogan. Living in common means living in a network of communities. Subsidiarity helps us decide where in that network responsibility for production should be located. The goods produced in common should be produced by the smallest element in the network in order to locate production as close as possible to the family and its members; this assures that such goods are available to meet the needs of human beings as persons and to contribute to their proper development. The principle of subsidiarity requires that preferential action be taken first by private organizations and then by public agencies but only after public agencies have offered assistance 22 and only if private organizations still are not operating effectively. Thus, the common good does not always require goods produced by public agencies. The problem with justice is that it results in a condition where no one owes anything to anyone else, a condition that James Schall describes as an “isolated hell.” 40 John Paul puts it this way: “justice, if separated from merciful love, becomes cold and cutting.” 41 In other words, the faithful practice of social justice coupled with subsidiarity removes the sources of dysfunction that prevent human beings from living successfully in community. However, social justice and subsidiarity do not by themselves establish a functional community. Christians practice the theological virtue of charity to address the burdens of persons with unmet personal needs. If those needs are not addressed, and they plainly are not under social justice, the poor are marginalized and effectively excluded from living in common. And where Christians practice charity, persons of good will may practice the natural virtue of caring. Benedict and John Paul warn that more is needed to preserve the dignity of the human person than a form of social justice enlightened by subsidiarity and the theological virtue of charity focused narrowly on one’s immediate neighbors. They are not sufficient for a truly functional community that exists in an increasingly interdependent “economic, cultural, political, and religious” order. Rather, the full development of the human person depends on solidarity -- “a firm and persevering determination to commit oneself to the common good . . . the good of all and of each individual.” 42 Benedict says that without the gratuitousness that makes solidarity possible, “there can be no justice in the first place.” 43 We conclude that the functional community depends on charity or caring to meet the needs of the poor, gratuitousness that makes possible social justice that 23 combines commutative, distributive, and contributive justice and removes human barriers to community when coupled with subsidiarity, and finally, solidarity -- a deep and abiding personal commitment to the common good. Notes 1. Raymond Jancauskas, “The Concept of Social Justice: Some Current Applications,” Review of Social Economy 17 (1959): 34. 2. William Waters, “Evolution of Social Economics in America,” in Social Economics: Retrospect and Prospect, ed. Mark A. Lutz (Boston: Kluwer Academic Publishers, 1989), 113. 3. Rupert Ederer, “A Principle for Economics,” The Catholic Social Science Review 13 (2008): 114. 4. Waters, Evolution, 95. 5. Bernard Dempsey, The Functional Economy: The Bases of Economic Organization, (Englewood-Cliffs, NJ: Prentice-Hall, 1958), 165; Waters, Evolution,113. 6. Arnold McKee, “What is “Distributive Justice?” Review of Social Economy 39 (1981): 3; Waters, Evolution, 113. 7. Pius XI, Divini redemptoris, 1937, English text, http://vatican.va/holy_father/pius_xi/encyclicals/documents/hf_pxi_enc_19031937_ divini- redemptoris_en.html (26 Jun. 2009), § 51. This flawed rendering also is found on the Eternal Word Television Network website, http://www.ewtn.com/library/encyc/p11divin.htm. We made no attempt to look for it at other sites. 24 8. “Atqui socialis justitiae est id omne ab singulis exigere, quod ad commune bonum necessarium sit” (emphasis mine). Pius XI, Divini redemptoris, 1937, Latin text, http://vatican.va/holy_father/pius_xi/encyclicals/documents/hf_p-xi_enc_19031937 _divini-redemptoris_lt.html (30 Jun. 2009), § 51. The author is grateful to John Czyzynski, SCJ, for help in translating the Latin text correctly into English. 9. Encyclicals of a Century, (Derby NY: Daughters of St. Paul, Apostolate of the Press, 1942), 314. 10. Dempsey, Functional Economy, 220, 372. 11. Ibid., 372. 12. Ibid., 220. Perhaps what accounts for this lapse is that Dempsey on the same page (202) states that in the language employed in Quadragesimo anno (§57, §58) Pius XI says in effect that “the practical application of the virtue of social justice . . . is equated with the common good.” 13. Waters, Evolution,113. 14. McKee, “Distributive Justice,” 2–3. 15. Dempsey, Functional Economy,164. 16. Waters, Evolution, 95, correctly asserts that a just society is one in which the rights of the individual and the community are satisfied. 17. Ibid., 113. 18. Tax avoidance is an entirely different matter. Avoidance means arranging one’s income in a way that conforms to the tax code but reduces the amount owed in taxes. 19. Dempsey, Functional Economy, 370, 372. 25 20. Benedict XVI, Caritas in veritate, 2009, http://vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_ 20090629_caritas-in-veritate_en.html (8 Jul. 2009), § 35. 21. Pius XI, Divini redemptoris, English text (corrected), § 51, emphasis added. 22. Benedict XVI, Caritas in veritate, § 35. 23. Dempsey, Functional Economy, 272–73. 24. Benedict XVI, Caritas in veritate, § 7; quote marks in the original. 25. Dempsey, Functional Economy, 272. 26. Catechism of the Catholic Church, (San Francisco, CA: Ignatius Press, 1994), § 822. 27. Leo XIII, Rerum novarum, 1891, http://vatican.va/holy_father/leo_xiii/encyclicals/documents/hf_l-xiii_enc_ 15051891_rerum- novarum_en.html (9 Jul. 2009), § 14. 28. Ibid., § 22. 29. Ederer, “A Principle,” 107. 30. Ibid., 114. 31. John Paul II, Sollicitudo rei socialis, 1987, http://vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_ 30121987_sollicitudo-rei-socialis_en.html (10 Jul. 2009), § 38. 32. Ibid., § 40. 33. John Paul II, Centesimus annus, 1991, http://vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_ 01051991_centesimus-annus_en.html (10 Jul. 2009), § 10. 26 34. Benedict XVI, Caritas in veritate, § 38. 35. Ibid., § 35. 36. Benedict XVI, Caritas in veritate, § 38; emphasis in the original. Later Benedict adds “international solidarity,” “social solidarity,” and “welfare solidarity” (see § 60) without clarifying how those terms differ from “solidarity” as defined in this section. The difference seems to somehow relate to the principle of subsidiarity. It is also important to note in this passage that, in the early 1900s, for example, the German Jesuit economist Heinrich Pesch identified the two as complements: “charity must complement justice so that one person will help the other, even when he is not compelled to do so by any kind of legal obligation.” See Heinrich Pesch, Heinrich Pesch on Solidarist Economics: Excerpts from the Lehrbuch der Nationalokonomie, trans. Rupert J. Ederer (Lanham, MD: University Press of America, 1998), l77. 37. Benedict XVI, Caritas in veritate, § 58. 38. Ederer, “A Principle,” 114. 39. The profit maximization principle asserts that profits of the typical firm are maximized at the unique combination of price and output where the additional cost of producing one more unit of output is equal to the added revenue from selling that unit. 40. James Schall, “Justice: The Most Terrible of the Virtues,” Journal of Markets and Morality 7 (2004): 412. 41. John Paul II, “From the Justice of Each Comes Peace for All,” 1998, http://vatican.va/holy_father/john_paul_ii/messages/peace/docoments/hf_jp-ii_mes_ 08121997_xxxi-world-day-of-peace_en.html (10 Jul. 2009): 1. 27 42. John Paul II, Sollicitudo rei socialis, § 38. 43. Benedict XVI, Caritas in veritate, § 38. 
work_czqbf67jhbcbzhjc43euknpfgu	----	1 (Not) talking about justice: justice self-recognition and the integration of energy and environmental-social justice into renewable energy siting Ian Bailey a * and Hoayda Darkal a a School of Geography, Earth and Environmental Sciences, University of Plymouth, Drake Circus, Plymouth, UK  Corresponding author. Email: ian.bailey@plymouth.ac.uk 2 Abstract Renewable energy often provokes heated debate on climate change, energy security, and the local impacts of developments. However, how far such discussions involve thorough and inclusive debate on the energy and environmental-social justice issues associated with renewable energy siting remains ambiguous, particularly where government agendas prioritise renewable energy and planning systems offer limited opportunities for public debate on value-based arguments for and against renewable energy developments. Using the concept of justice self-recognition, we argue for greater attention to public discussion of the justice dimensions of renewable energy to assist in developing mechanisms to integrate distributive and procedural fairness principles into renewable energy decision-making. To explore how justice is currently invoked in such contexts, we examine recent UK policies for renewable energy and public submissions to applications for small-scale wind energy projects in Cornwall, UK. The analysis of public comments revealed that justice concerns were rarely discussed explicitly. Comments instead did not raise concerns as justice issues or focused implicitly on distributive justice, stressing local aesthetic, community and economic impacts, clean energy and climate change. However, the findings indicated limited discussion of procedural or participatory justice, an absence that hampers the establishment of coherent procedures for deciding acceptable impacts, information standards, public participation and arbitrating disputes. We conclude by suggesting procedural reforms to policy and planning to enable greater public expression of justice concerns and debate on how to negotiate tensions between energy and environmental- social justice in renewable energy siting decisions. Keywords: wind energy; energy and environmental-social justice; justice self-recognition; planning policy; Cornwall 3 Introduction Recent years have seen burgeoning interest in energy justice as a lens for identifying and addressing inequities within energy production and supply systems (Goldthau and Sovacool 2012; Heffron, McCauley and Sovacool 2015; Jenkins et al. 2016; McCauley et al. 2013; Sovacool and Dworkin 2014). Few would dispute the fundamental ambition of energy justice to promote universal access to reliable, safe, affordable and sustainable energy (McCauley et al. 2013), but implementing its ideals can provoke controversy where energy decisions impinge on other societal justice concerns. A prime example is where policies to promote renewable energy conflict with community concerns to protect themselves from the negative health, environmental or social impacts of energy developments (Cotton 2017; Malin and DeMaster 2016; Wolsink 2007). Local resistance to renewable energy is still commonly attributed to a “NIMBY” (Not In My Back Yard) mindset underpinned by self- interest (Bidwell 2013). However, numerous commentators have critiqued use of the term by developers and decision-makers to disregard local concerns about unfair burdens, inadequate consultation, and other forms of environmental-social injustice 1 (Bailey 2016; Devine-Wright 2011a; 2012; Gross 2007). Community perceptions of justice have accordingly formed a major theme in research on renewable energy siting (Gross 2007; Jobert et al. 2007; Langer et al. 2016). Some studies have explored normative frameworks for achieving just and inclusive decision- making, employing concepts such as participatory planning and landscape justice (Gross 2007; Howard 2015; Mason and Milbourne 2014), while others have explored community evaluations of distributive and procedural justice within decisions on energy infrastructure siting (e.g. Anderson 2013; Armeni 2016; Bidwell 2013; Cotton and Devine-Wright 2011; Delicado et al. 2014; Langer et al. 2016; Ottinger et al. 2014; Simcock 2016; Zoellner et al. 2008). However, most studies have used retrospective techniques, such as surveys, interviews or focus-group techniques, that arguably prompt participants to reflect on justice issues they may not otherwise have considered or raised in planning debates, and which often attract those with stronger opinions who may not reflect broader community views. Delicado et al (2014) and Cowell’s (2010) studies of attitudes to wind power in Portugal and Wales partly avoid these problems by combining interviews with reviews of public responses to planning consultations. However, Delicado et al. (2014) analysed comments on environmental impact assessments conducted prior to planning applications while 4 Cowell (2010) examined responses to a strategic search for acceptable areas for wind energy rather than specific wind farm applications. Importantly, neither examined how communities and individuals expressed justice arguments for and against wind energy at the point when decisions on planning permission were being made. Gaining more reliable understandings of how energy and local environmental-social justice are perceived and articulated by groups affected by renewable energy siting – and how conflicts are managed – requires greater attention to public discussions during “live” planning debates, when the impacts of proposals become apparent and directly pertinent to residents. Research consistently shows higher public support for renewable energy at an abstract level compared with actual deployments (Bidwell 2013; Wolsink 2007; Zoellner et al. 2008) and that people use different logics – often stressing technology characteristics, place attachment and procedural flaws (Devine-Wright 2012) – to justify opposition. However, how justice is debated in its unedited forms during planning processes remains under-researched. This gap also represents a priority because of the difficulties in achieving equitable accommodations between energy and environmental-social justice without open and inclusive dialogue about how these should be balanced in energy siting. Such dialogue may help to counter the temptation for government and developers to see renewable energy as advantageous to national and commercial goals and opposition as parochial and NIMBYist (Fuller and McCauley 2016). Equally, it may encourage greater reflection by residents on justice arguments favouring renewable energy in specific locations. This article seeks to fill this research gap by examining recent experiences with wind energy siting in Cornwall, an area of the UK that has experienced a surge in small-scale wind schemes since 2010. Wind energy was chosen as a focus because wind turbines remain controversial on the grounds of visual, landscape, health and wildlife impacts (West et al. 2010; Wolsink 2007), so one would anticipate strident debate on justice issues during planning applications. The first main strand of enquiry examines how energy and environmental-social justice have been constructed in recent UK national policies governing planning applications for wind energy. Although the Department for Communities and Local Government’s (DCLG) 2012 National Planning Policy Framework and supporting policies for renewables do not refer directly to energy or environmental-social justice, they project clear ethical agendas that stress the responsibility of all communities to contribute to energy security and reducing emissions (DCLG 2012). The second strand focuses on how public 5 views were expressed in written submissions to 14 planning applications for wind turbine projects in Cornwall, to examine how supporters and objectors have invoked justice issues. Our main argument is that selective interpretations of energy and environmental- social justice by central government – both in terms of issues and the priority given to national agendas compared with local considerations – combined with an inability and/or reluctance by communities to discuss wind energy projects as justice issues has contributed to a lack of robust debate on the justice dimensions of wind energy siting. Politically motivated interpretations of “fair” outcomes have instead dominated, driving, first, planning policy heavily weighted towards approving applications – sometimes reversing local decisions – and, latterly, conditions where approval has become difficult even where only minority objections exist. In exploring the implications of this situation, the article seeks to advance understanding of the contested relationship between energy justice and other forms of environmental-social justice while drawing attention to the need for energy policy in countries like the UK to pay greater attention to enabling inclusive and open dialogue on the justice dimensions of renewable energy siting. The next section explores key energy and environmental-social justice principles and debates affecting renewable energy decisions, focusing particularly on procedural and participatory justice within decision-making (Jenkins et al. 2016). We then interrogate recent UK policies for small-scale renewables and how government interpretations of justice have influenced decision-making on wind turbine applications in Cornwall. Following this, the methods for analysing public submissions on turbine applications and the study’s findings are discussed. Finally, we explore the study’s implications and ways to encourage greater consideration of the diverse and multi-scalar justice issues affected by renewable energy decision-making. Energy and environmental-social justice: principles and tensions The range of socio-environmental concerns debated under the banner of environmental justice has diversified appreciably in recent decades (Schlosberg 2004; 2007; Walker 2009). Interest has particularly centred on climate and energy justice as lenses for analysing inequities associated with climate change and the demands of energy security, access and environmental sustainability that make up the energy trilemma (Cotton and Devine-Wright 2012; Hall 2013; Heffron et al. 2015; Jenkins et al. 2014; 2016). While this proliferation 6 reflects the multiple ways socio-environmental issues are entangled with questions of fairness, it has undoubtedly heightened the complexity of the environmental justice landscape (Klinsky and Dowlatabadi 2009; Sovacool 2014). Climate, energy and environmental justice share similar philosophies about fairness in the allocation of rights and responsibilities (Jenkins et al. 2016; Sovacool 2014), but their different foci make it problematic to assume a neat alignment of goals. Our main interest here is intersections between energy justice and local environmental-social justice, because although climate justice forms a general backcloth to energy policy, energy and environmental-social justice often compete more directly with each other in renewable energy siting disputes. McCauley et al. (2013) defines energy justice as the promotion of universal access to safe, affordable and sustainable energy. As such, its agenda extends beyond revealing where and why energy injustices occur to incorporate a normative focus on reducing injustices in energy systems (Jenkins et al. 2016). Environmental justice, meanwhile, centres on meaningful public involvement in environmental decision-making and non-discriminatory protection from environmental risks, particularly for marginalised and disadvantaged groups (Bullard and Johnson 2000; Walker and Bulkeley 2006), and thus articulates more multi- faceted concerns for social and environmental equity in relation to energy and the collateral effects of energy decisions. Tensions between these concepts may emerge where actions to address energy injustices encroach on other justice priorities, creating ambiguity in the definition of fair outcomes depending on whether energy or environmental-social justice lenses are applied, the relative importance given to local, national or international concerns, and how short- and long-term impacts are prioritised. For example, where arguments about mitigating climate change by reducing fossil fuel dependency clash with concerns for aesthetic, social and environmental quality in areas targeted by low-carbon energy projects, questions about national energy production become ensnared in local debates about how burdens and benefits should be allocated (Bailey 2016; Langer et al. 2016). Conversely, such debates may be circumscribed by the power relations affecting how different justice arguments are prioritised. Climate change and energy security are often regarded as national and international concerns, so without appropriate checks and balances may overshadow local justice concerns. While, Jonas and Gibbs (2010) indeed argue that recent years have seen the rise of a distinctive low-carbon polity in the UK that has exposed sub-national political 7 arenas to uncompromising new values, political agendas, and forms of state regulation. They contend that such domination has subverted broader readings of sustainable development while promoting socially uneven re-workings of state-society relations, a phenomenon Swyngedouw (2010: 214) regards as symptomatic of a post-political approach to climate governance in which: “technocratic management and consensual policy-making has sutured the spaces of democratic politics.” Negotiating tensions between energy and environmental-social justice requires close attention not only to distributive justice but also to the procedures for encouraging stakeholder participation and adjudicating between competing viewpoints (Haggett 2011; Langer et al. 2016; Rowe and Frewer 2004; Schlosberg 2004; Walker 2009; Walker and Day 2012). Distributive justice focuses on social and spatial equity in the effects of energy decisions to tackle existing inequalities and avoid new inequities. Procedural justice, meanwhile, focuses on promoting stakeholder participation to utilise local knowledge and democratise decision-making, trustworthy assessment of the effects of decisions, and evidence-led decision procedures (Gross 2007; MaCoun 2005; Sovacool et al. 2013; Jenkins et al. 2016). Rowe and Frewer (2004) additionally stress the need for clear criteria for evaluating the effectiveness of participation, but also note the difficulties in achieving clear and objective definitions of effectiveness. In value-laden debates on renewable energy siting, effective participation can carry various meanings but relates generally to ensuring all legitimate viewpoints are considered in relation to some combination of their merits and whether they represent the wider views of those affected by siting decisions (Armeni 2016; McClymont and O’Hare 2008). In this context, Schlosberg (2007) and Heffron et al. (2015) also emphasise the importance of recognition justice in guarding against the use of stereotypes or other means of cultural domination that might undermine the rights of individuals and groups to participate in consultations. Space constraints prevent discussion of all the distributive, procedural and recognition justice issues affecting renewable energy siting. However, two issues stand out as especially pertinent to the present discussion. The first, already noted, concerns the need for multi-issue and multi-scalar perspectives on justice to protect against energy concerns overshadowing other issues, the domination of national and international agendas, or the derailing of policy by local opposition. Although some definitions of energy justice incorporate concern for how the burdens and benefits of energy systems are distributed 8 (Bickerstaff et al. 2013; Sovacool 2014), how far these include the full range of non-energy impacts from energy choices remains ambiguous and narrower interpretations may give primacy to renewable energy on climate or other grounds while giving lesser weight to local socio-environmental impacts based on the reasoning that energy transitions cannot be entirely free from detrimental impacts. Counteracting such tendencies requires consistency, transparency and accountability in decision-making, not least because of the longevity of energy infrastructure and the potential for procedural flaws to erode trust in decision-makers (Sovacool et al. 2016). However, despite agreement that achieving just outcomes is seriously compromised without procedural safeguards, Maguire and Lind (2003) and Skitka et al. (2003) warn that procedural fairness cannot guarantee acceptance of decisions; groups strongly opposed to wind farms may care more about outcomes and be more inclined to “cry foul” if decisions go against them, while supporters may find little fault with the same procedures because of convictions about wind energy (Gross 2007). The contingent and outcome-dependent nature of procedural justice reinforces the importance of robust participation that recognises different viewpoints (Schlosberg 2007; Young 2000). As Bulkeley, Edwards and Fuller (2014: 33) note, just climate and energy outcomes require: “nuanced engagement with how… action creates both costs and benefits, which are unevenly experienced… it involves engaging substantively with the notion of justice as recognition”. Recognition justice has been discussed extensively in relation to racial, cultural, gender and socio-economic discrimination (Jenkins et al. 2016; McCauley et al. 2013; Sovacool and Dworkin 2014), but renewable energy debates also possess their own pejoratives, such as the labelling of objectors as “NIMBYs”, wind turbines as environmentally or economically inefficient, and supporters as unscrupulous profiteers with little regard for affected communities (Devine-Wright 2011a; Wolsink 2007). Most discussions of recognition justice have focused on marginalised groups and minority viewpoints. However, a less frequently discussed issue is that of justice “self- recognition”, a term we use to encapsulate two interlinked ideas: participants’ awareness that their opinions represent legitimate fairness issues rather than just personal viewpoints; and their ability and confidence to utilise the vocabulary of justice to defend their rights during renewable energy conflicts. Justice self-recognition, we argue, forms a vital part of recognition justice because recognition by individuals that their concerns raise legitimate distributive or procedural issues is a pre-requisite of petitioning for them to be treated as 9 such by decision-makers. Conversely, where perceived injustices are not expressed in justice language, the greater the likelihood of them being seen as less important by decision-makers regardless of the merits of the arguments, particularly where they are minority viewpoints. Although Honneth (2004) again warns of participation being skewed by the influence and “noisiness” of actors rather than the ethics of arguments or the worthiness of groups, justice self-recognition represents an under-researched aspect of efforts to address trade-offs between energy justice and other spheres of economic and social life (Fuller and McCauley 2016). We discuss justice self-recognition further later in the article but, before this, the next section reviews recent UK policies on small-scale renewables and the energy-justice agendas created by these policies. Feed-in tariffs, planning policy and Cornwall’s renewables boom Cornwall’s engagement with renewable energy began in 1991 with the construction of the UK’s first commercial on-shore wind farm near the village of Delabole. Over the next decade six further wind farms were built in Cornwall, but since 2010 the region has experienced a surge in small-scale onshore wind and solar generation. Between 2010 and 2016, the number of turbines installed or approved grew from around 100 to 421, while 91 commercial solar-PV sites have also been constructed (Cornwall Council 2016a; 2016b). The first main factor driving this expansion was the introduction in 2010 of the UK feed-in tariff (FiT) by the Labour government. This scheme offered premium prices for renewable energy projects up to 5MW capacity, with tariffs differentiated by: technology; electricity consumed at the point of generation or exported; project size (smaller schemes receive higher tariffs); and installation date (Ofgem 2016). In keeping with the ethos of FiTs and other traditions in UK energy policy, the scheme provided a regulatory framework and financial incentives but left market forces and the planning system to determine where and in what forms investment should occur (Mitchell 2008). The second driver, the introduction of the 2012 National Planning Policy Framework (NPPF) by the Coalition government, took a more assertive approach towards the conditions under which developments should be approved. At the core of the NPPF was a presumption in favour of sustainable development, which the DCLG (2012: 4) argued: “should be seen as a golden thread running through both plan-making and decision-taking”. The ministerial 10 foreword included an contentious definition of sustainable development: “Development means growth.” (ibid: i), while Section 14 argued that local authorities should approve developments unless “adverse impacts… would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework” (ibid: 4). The DCLG’s Planning practice guidance for renewable and low carbon energy (PPGRLCE), published in 2013, further articulated the government’s ethical agenda on renewables, stating that all communities had a responsibility to contribute to energy from renewable and low-carbon sources and that local planning authorities should develop positive strategies for renewable energy (DCLG 2013). The NPPF instructed planning authorities not to require applicants to demonstrate the overall need for renewable energy and to recognise that even small-scale projects made a valuable contribution to cutting greenhouse-gas emissions, and directed planning committees to approve applications “if impacts are (or can be made) acceptable” (DCLG 2012: 23; 2013). Although both documents acknowledged that green energy should not override environmental or community concerns, except for noise and essential safety measures, most criteria were only specified qualitatively for interpretation by local authorities, consultative agencies (e.g. Natural England), and/or developers (DCLG 2013). Several aspects of the justice agendas created by these policies merit further discussion. The first concerns the government’s use of “hard” and “soft” governing technologies to regulate the expectations and actions of local planning authorities (Rose- Redwood 2006). “Soft” discursive power was exercised by projecting ethical norms that prioritised national concerns for energy supplies, cutting greenhouse gas emissions, and investment; correspondingly, the role of planning was to deliver renewable energy infrastructure where impacts could be made acceptable, rather than emphasising autonomy or local priorities (Murdoch 2004). “Hard” material power was exerted by specifying “positive criteria” under which applications should be approved (DCLG 2013). Additionally, limiting the grounds for rejecting applications also restricted the capacity of communities to challenge government interpretations of renewable energy policy. Equally, though the PPGRLCE required attention to cumulative impacts, it imposed no quantitative and few area-based restrictions on renewable energy. A further element of material power was the retention of final decision-making power if local institutions resisted government agendas (McKee 2009) under provisions in UK planning law allowing applicants to appeal rejected 11 projects to the Planning Inspectorate for further assessment against the NPPF, local plans and the project’s characteristics. Its decisions can only be revoked through legal proceedings. Finally, the introduction of interventionist strategies alongside the FiT enabled commercial actors to become influential interpreters of the government’s energy agenda (Catney et al. 2014). In essence, the policies gave developers strong incentives to promise landowners lucrative returns for investing in renewable energy and powerful arguments to press for the approval of projects (Bailey 2016). But how have local communities responded to this agenda, what arguments have been used to support or object to applications, and to what extent have communities articulated distributive and procedural justice arguments during planning debates on renewable energy? The next section begins to address these questions by explaining the methods used to examine public submissions to wind turbine applications in Cornwall. Methods Research into the use of justice arguments by affected communities consisted of analysis of public submissions on 14 wind turbine applications submitted between 2011 and 2015. Submissions to planning websites were preferred to observing public meetings after attending three meetings because each meeting was dominated by vocal objectors and involved hostile exchanges that may have deterred the expression of some viewpoints. In contrast, planning websites allow anonymous online or postal submissions, so involvement is not limited by internet restrictions or concerns about ill feeling, and longitudinal sampling of planning decisions was possible. It was anticipated that people with stronger opinions would be more likely to submit comments, potentially biasing the sample, but this would be likely with any research method. The sample included three applications approved by planning committees, six that were approved on appeal, and five where appeals were dismissed. This led to an overall dataset of 842 submissions and 14 applications proved sufficient to achieve saturation in the arguments used by both supporters and objectors 2 . Additionally, capturing arguments for applications with different outcomes gave confidence of having achieved a representative sample of how different arguments – including appeals for justice and fairness – were expressed in submissions. 12 Supporters and objectors’ arguments were analysed to explore four main themes: (1) The main issues raised, for example: visual and landscape disturbance; noise and other health effects; business benefits and negative impacts; ecology and heritage; community effects; distribution of benefits; property values; cumulative impacts; consultation procedures; and climate change and energy security. (2) The spatial emphasis of arguments, classified into local, regional, national or international issues, to identify any patterns in the geographical scale at which supporters and objectors pitched arguments. (3) The extent to which justice arguments featured in submissions, using a three-level analysis: (i) where arguments used terms like “justice”, “unjust”, “fair” or “unfair”; (ii) where references to justice could be inferred but justice terminology was not employed; and (iii) where no evidence existed that notions of (un)fairness were consciously expressed by the individual. (4) Although not all arguments made direct or indirect reference to justice issues, content analysis enabled tracing of all arguments to some form of fairness/unfairness claim. Arguments were consequently linked to outcome, distributive and procedural justice, then procedural justice arguments were further sub-divided into: (i) decision-making rules (e.g. the NPPF or local plans); (ii) assessment procedures; and (iii) consultation processes (Ottinger, Hargrave and Hopson 2014; Schlosberg 2007). In so doing, we investigated how frequently each justice category was invoked to analyse how different justice ideas influenced the way arguments were presented. The crucial advantage of textual analysis was that it examined arguments as they were expressed by individuals and considered by decision-makers, and thus avoided prompted reflections on the justice dimensions of arguments. Conversely, the technique relied on interpretation of whether individuals expressed their arguments as justice issues and the 13 forms of (un)fairness being asserted. Although interpretation was mostly straightforward (see points 1-4 above and the relevant results sections for explanations of the criteria used to classify the presence or absence of justice arguments, and types of justice arguments identified), a selection of arguments was read independently by both researchers to reduce misinterpretation. Additionally, the analysis could not determine whether individual arguments influenced the approval or rejection of applications because public submissions formed only part of the evidence base for decision-making. However, because the intention was to explore how justice arguments were used rather than whether they influenced decisions, this did not impose significant limitations. Contesting wind turbine applications Key issues and spatial emphases The first phase of analysis revealed a familiar range of issues being raised about wind energy (Table 1) (Cowell 2010; Delicado et al. 2014; Devine-Wright 2011a; Gross 2007; Zoellner et al. 2008). Among objectors, three main categories of impact were stressed: effects on rural landscapes, including visual and landscape impacts, the cumulative effects of multiple turbines, and impacts on wildlife and heritage (48.3% of objections); effects on people (health and noise, community, damage to tourism, declining property values, and uneven distribution of financial benefits) (31.1%); and criticisms of decision-making, such as government policies supporting ineffective and/or expensive technologies, and unsatisfactory consultation or assessment (17.1%). Supporters’ comments, meanwhile, focused on the benefits of wind power (clean energy, combating climate change, energy security and future generations (43.2% of arguments)); local economic benefits (24%); and the limited negative impacts of turbines (30.4%); while a further 2.4% criticised objectors as selfish and short-sighted. Although these results largely corroborate previous studies, one noteworthy tendency was for supporters to submit short general commentaries supporting wind energy, whereas many objectors provided detailed analyses of government policy, planning requirements, impact assessments, or specific impacts. This provides an initial indication of power relations in the planning process: supporters appeared to feel little need to offer elaborate arguments because of the NPPF’s support for wind energy, whereas objectors instinctively 14 or consciously identified that a detailed evidence base spanning multiple technical and planning issues was required to convince decision-makers that the application failed to meet the government’s acceptability requirements (Usher 2013). Table 1: Main Issues Raised by Supporters and Objectors (n=842) Supporters (n=134) Objectors (n=708) Issue % Main spatial emphasis Issue % Main spatial emphasis Clean energy 28.0 Global/ national Landscape and visual impacts 28.2 Local, regional Aesthetically pleasant 15.2 Local Health and noise 13.3 Local Temporary/limited impacts 15.2 Local, regional Cumulative impacts 10.3 Local, regional Farm livelihoods 12.8 Local Business/tourism impacts 8.9 Local, regional Local economic benefits 11.2 Local Ineffective technology 7.6 National, global Climate change 6.4 Global Wildlife 6.5 Local Energy security 6.4 Local, national, global Consultation 6.5 Local Selfish/short-sighted objectors 2.4 Local Community/personal effects 5.3 Local Future generations 2.4 Global Distribution of benefits 3.6 Local Heritage 3.3 Local, regional Flawed assessment 3.0 Local Other, including procedure 3.5 Local, regional, national 100.0 100.0 15 Further distinctions emerged in the spatial framing of objectors and supporters’ arguments. Table 2 indicates that although both groups primarily discussed local effects, opponents concentrated almost entirely on local issues, while 32.3% of supporters’ arguments also stressed national and international issues like energy security and climate change. The general accent on local issues would appear to reflect a desire by both camps to invoke a sense of local identity that conveyed ideas of community, landscape and heritage preservation (objectors) or livelihoods and enhanced local distinctiveness (supporters) to gain traction with local planning committees (Usher 2013; Devine-Wright 2011b). However, the greater emphasis among supporters on national and international issues might correspondingly reflect attempts to remind committees of the requirements of the NPPF 3 , particularly when interwoven with broader ethical arguments. As one supporter wrote, “there is a moral obligation to cut emissions. Unless we cut electricity, we need turbines for the sake of future generations”. Combative reasoning emphasising regional and local issues were also used by objectors to challenge the ethics of policies they regarded as creating unequal burdens and benefits, and by supporters to question the reasoning of objectors. As one objector argued, “the turbine brings zero benefits to local populace. The views of the environmental Nazis should not be allowed to cow the rest of us to silence”, while another noted that a proposed turbine: condemns people to a huge impact on turnover and likely profitability to help one business. Don't harm so many people, businesses, homes and tourists’ destinations for one developer who only cares about his relatively small financial gain and disregards the wider loss to the community, both residential and commercially. Supporters argued conversely that a turbine would: “contribute to the county becoming energy self-sufficient” and attacked objectors as: “short sighted to oppose the turbines. Who would want to live near a nuclear reactor?” offering an interesting, if speculative, choice between different forms of energy generation. 16 Table 2: Spatial scale of justice arguments Totals % Supporters Objectors Total Supporters Objectors Total Local 80 560 640 52.6 81.2 76.0 Regional 23 79 102 15.1 11.4 12.1 National 24 47 71 15.8 6.8 8.4 Global 25 4 29 16.5 0.6 3.5 152 690 842 100.0 100.0 100.0 Justice and public debate on turbine applications The next phase of analysis examined the ways discussion of justice featured in public comments. To recap, all submissions were first analysed to identify whether commentators referred directly or implicitly to energy or environmental-social justice, or whether there was no evidence of the individual framing arguments as justice issues. Further content analysis was then used to explore links between each argument and elements of outcome, distributive or procedural justice, even where these were not expressed in such terms. Predictably, given the controversial nature of turbine siting, all arguments had justice connotations, though many were inferred rather than declared and relied on researcher interpretation. Its main purpose, therefore, was to illuminate the emphasis on outcome, distributive or procedural justice within submissions rather than intent. Surprisingly given the strength of community views on distributive and procedural justice reported in the literature (e.g. Armeni 2016; Bidwell 2013; Delicado et al. 2014; Simcock 2016; Zoellner et al. 2008), only 4.8% of arguments referred openly to justice ideas. For example, one objector described the decision process as “undemocratic and manifestly unfair when government policy is supposed to give local people a greater say”. Another claimed that “it is clearly unfair I should have a turbine on my boundary, making it impossible for me to carry on my business”. A further 15% referred to justice issues without using justice terminology (e.g. “I will have a serious loss of living amenity”), but 80.2% of arguments made neither direct nor indirect reference to justice issues even where 17 cumulative impacts were raised (e.g. “the many other turbines and solar developments in the area will detrimentally affect tourism”, “Cornwall has met its targets for renewable energy” and “renewable energy is the future”). Most arguments were instead presented as “verifiable” statements rather than as outcome, distributive or procedural justice claims. To probe public discussion of justice concerns further, the final stage of analysis traced links between each argument and elements of outcome, distributive or procedural justice even where they were not expressed in justice terms. Arguments were linked to outcome justice where they focused on the overall merits of wind energy as a response to climate change, energy security and/or economic regeneration, and to distributive justice where they commented on the distribution of impacts and benefits. Procedural justice was then divided into three components: (1) assessment issues, e.g. methods for evaluating impacts, or the conclusions of impact studies; (2) participation, e.g. lack of consultation, representation, or impact of public opinions on decisions; or (3) procedural issues, e.g. criticisms of policies and planning procedures for determining applications. Unsurprisingly, distributive justice formed the dominant theme (65.2% of arguments), reflecting concerns that turbine owners and other parts of the country would benefit from developments while most disadvantages would be experienced by nearby residents (Figure 1). As one respondent noted, “local people would have the regular insulting reminder of the injustice, in the form of subsidies for the back pockets of the landowner and developer”. In contrast, only 19.1% of arguments related to overall outcome fairness, mostly by supporters. Arguments here included: Fossil fuels are running out rapidly, so we need renewable energy to protect energy security. Global warming affects farming and humanity. The majority agree with renewable energy as a way of meeting the country's energy requirements. However, some opponents’ arguments also linked to outcome justice where they questioned the wisdom of wind energy: 18 There is a central misconception that wind turbines are a solution to climate change, brought about by collaboration between the greedy energy industry and aimless government policies. Wind turbines are not economic or helping to reduce carbon footprints These are inefficient taxpayer subsidised machines. Figure 1: Types of justice arguments in consultation submissions Procedural justice issues were predictably dominated by objectors but, surprisingly given the controversial elements of government policy, featured in just 15.7% of arguments. 5.8% of total arguments related to assessment procedures, 5.7% to participation, and 4.2% to the rules for determining applications. Common assessment complaints included one objector who claimed that “there were errors in the noise assessment, properties were missed from the evaluation, and the assessment of visual impacts was entirely subjective”, while criticisms about consultation included: We were provided with no information about the application, making a mockery of the consultation process. 19 The people living near the site object, yet we have to contend with anonymous people supporting applications that do not identify their locations. Finally, several submissions were critical of local and national government policy: The Council has no strategy for wind turbines and the application is inconsistent with local plans. The process is undemocratic and manifestly unfair. Recent changes in government policy and the Localism Act are meant to give local people a greater say. Our village has suffered under recent political and economic policies; we have lost our school and public house. Now government policy is undermining the community and driving divisions between residents. The low overall use of justice arguments, particularly procedural justice, among the submissions nevertheless contrasts starkly with other studies that indicate strong community views on the justice dimensions of renewable energy siting (Anderson 2013; Armeni 2016; Bidwell 2013; Cotton and Devine-Wright 2011; Delicado et al. 2014; Langer et al. 2016; Ottinger et al. 2014; Simcock 2016; Zoellner et al. 2008). Lack of public awareness of connections between wind energy and justice seems unlikely given the findings of previous studies and the instances where procedural or other issues were expressed vociferously. Limited public understanding of technical assessments (e.g. noise, landscape visual impact, and heritage) may have contributed to lack of discussion of assessment concerns, though some submissions provided detailed critiques while others demonstrated awareness of planning policy (e.g. “there needs to be legislation on minimum distances from buildings” and: “the Localism Act says developments should not be permitted if the local community objects” 4 ). A more plausible explanation for the deficit is that respondents recognised that challenging the values or provisions of government policies increased the risk of submissions being disregarded as emotive and unimportant. Supporters and opponents instead sought to influence decisions by emphasising technical or planning requirements. For objectors, this encouraged an accent on local identities and distributional considerations that were recognised in national policy and local plans, whereas supporters had greater scope to air general opinions that reflected the government’s views on 20 renewable energy. In both cases, but more obviously for objectors, the normative agendas established in the NPPF inhibited people’s confidence to utilise justice concepts and language to support viewpoints even where they felt government policies were distributively or procedurally unfair. The inconsistency with previous research almost certainly stems from the methods used to explore public opinions on the justice dimensions of wind energy (see Cowell 2010; Haggett 2011; Howard 2015). Usher’s (2013) analysis of a coalmine application in Yorkshire similarly reveals how activist groups adapted to planning protocols by adopting a professionalised lexicon that emphasised planning and technical objections because they believed emotive arguments would be discounted (also Cass and Walker 2009). In this case, opposition groups secured the rejection of the coalmine by stressing the protection of attractive landscapes within greenbelt land and other material planning considerations that maximised their chances of the planning committee’s decision being upheld by the Planning Inspectorate in the event of an appeal. Similarly, objectors to the wind turbine applications reviewed appeared to recognise that contesting the fairness of government policies would prove unproductive and sought instead to influence decision-making within the existing rules of planning policy. Summing up, it appears that the choice of data collection methods can significantly alter the understandings gained about how energy and environmental-social justice are debated and influence planning decisions. This and Usher’s study both analysed textual evidence from “live” decision-making processes rather than relying on prompted accounts of the fairness of decision-making on wind energy developments (though see Delicado et al. (2014) for a partial exception). The latter approach advances general understandings of how community perceive justice and trust in decision-making on energy siting but may provide less trustworthy insights on people’s ability and confidence to express justice as a concern during decision-making itself. A greater emphasis on investigations that directly probe how justice issues are discussed during energy siting disputes thus appears to be crucial in gaining a deeper understanding of how power relations shape the discussion of energy and environmental-social justice in renewable energy decision-making. 21 Concluding discussion Disputes over the siting of renewable energy developments are ultimately debates about justice: in the distribution of benefits and burdens; in the mechanisms used to promote public participation; and in the procedures used to evaluate information and arbitrate between competing viewpoints. The deficits in public discussion of the justice issues associated with wind energy siting identified in this study, combined with the strong community opinions on distributive and procedural justice in previous research (e.g. Bidwell 2013; Cowell 2010; Delicado et al. 2014; Howard 2015; Langer et al. 2016; Ottinger et al. 2014; Simcock 2016; Zoellner et al. 2008), raises important concerns about the UK government’s commitment to public debate on the justice implications of renewable energy. In particular, strong government agendas and “technical rationalist” leanings within planning processes (Cass and Walker 2009; Usher 2013: 821) appear to have eroded the ability and confidence of affected communities to express concerns as justice issues, even where they regarded outcomes or procedures as unfair. Although this generally favoured supporters, objectors and supporters both sought to gain influence by linking arguments to government agendas (e.g. climate change, energy security and localism) or government- determined planning considerations (e.g. landscape impact and noise requirements) rather engaging in open-ended debate about how to balance broader-scale energy justice and local environmental-social justice (Armeni 2016; Usher 2013). This policy approach, we argue, marginalised an important source of accountability (Catney et al. 2014; Rose-Redwood 2006) and may prove counterproductive to the government’s long-term aims to decarbonise the UK’s energy system if it erodes public trust and compounds local resistance to renewable energy (Wolsink 2007; Ottinger, Hargrave and Hopson 2014). Indeed, such tensions already appear to have affected UK policies for wind energy. The Conservative Party’s 2015 election manifesto acknowledged that although onshore wind was making a meaningful contribution to the UK’s energy mix: “Onshore windfarms often fail to win public support… and are unable by themselves to provide the firm capacity that a stable energy system requires. We will end any new public subsidy for them and change the law so that local people have the final say on windfarm applications” (Conservative Party 2015: 57). This pledge was fulfilled in June 2015, when the Secretary of State issued guidance instructing planning authorities only to approve new onshore wind projects if “the development site is in an area identified as suitable for wind energy 22 development in a local and neighbourhood plan”; and/or where, “following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing” (Hansard 2015). Although this decision theoretically gave communities a greater voice in planning, wind energy supporters have criticised the decision for creating new biases and inconsistency in the acceptance criteria applied to applications submitted before and after the statement (RenewableUK 2015) 5 . Reflecting on efforts to inject greater democratisation into debates on the justice dimensions of energy transitions, Healy and Barry (2017: 453) argue that addressing climate change and energy security requires radical changes to energy systems and that “a just transformation of the socio-energy system is a decision to live in a different type of society” (original emphasis). They nevertheless stress that justice-led decision-making must address the conflict-laden ethics, politics and power dynamics of energy (Jenkins et al. 2017) to guard against Machiavellian approaches to energy transition and the treatment of rural areas as energy sacrifice zones (Hernández 2015; Kelly-Reif and Wing 2016). We argue that this necessitates renewed efforts to make energy policy and planning systems amenable to public justice self-recognition and discussion of the distributive and procedural justice implications of energy transitions and the adoption a multi-issue and multi-scalar approach which prioritises procedural fairness in how competing conceptualisations of energy and environmental-social justice and national and local priorities are mediated in policy and planning. First, it entails greater commitments within national policy to managing the value choices presented by renewable energy through discussion rather than imposed agendas that constrain engagement and treat community concerns as a hurdle to be overcome (Cass and Walker 2009; Healy and Barry 2017). Second, it implies readjusting planning policy to place greater emphasis on guaranteeing procedural fairness and consistency in the formulation of local-level justice and acceptability principles for energy projects, and the creation of mechanisms for encouraging all parties to deliberate on the justice issues raised by developments and to facilitate negotiated approaches to arbitrating energy and environmental-social justice conflicts in affected areas (Chilvers 2008; Dietz and Stern 2008). One possibility, similar to that advocated by Tingey et al. (2017), would be to introduce a statutory duty for all local authorities to develop negotiated low-carbon plans. They report that although 311 out of 434 UK local authorities had produced energy and low- 23 carbon plans by early 2017, significant variations existed in their detail and emphasis on “energy” compared with “low-carbon” (which may not include renewables), technologies, and the methods for developing plans (Tingey et al. 2017). Alongside strengthening commitments to planned approaches to renewable energy, the NPPF and planning guidance could “justice- and democracy-proof” plans by replacing normative statements with commitments to local negotiation on when projects should be approved, including identifying issues local authorities must consider during negotiations. These might include: separation distances between properties and different types and sizes of renewables; impacts on landscape character, heritage assets and ecology; shadow flicker; criteria for cumulative impacts; and benefit sharing for communities and affected properties. Also integral to this approach would be balancing technical assessments with expectations for participatory planning and other deliberative techniques to encourage wide-ranging input into negotiating criteria for determining proposals (Cass and Walker 2009). Although locally negotiated energy plans may ease some fear-related barriers to public justice self-recognition and debate on the justice dimensions of renewable energy, further action would be required to facilitate discussion of individual applications. Planning officers currently produce committee reports recommending whether to approve applications based on the officer’s interpretation of national policy, the project’s characteristics and representations received. Although committees are not obliged accept officers’ recommendations, they must specify reasons for rejection and reports form an important part of the evidence base for appeals. One way to diffuse excessive influence by individual officers would be to require planners to produce neutral issues discussion documents rather than recommendations explaining to residents and other stakeholders the impact and justice criteria adopted in negotiated plans and arrangements provided for discussing projects. Feedback on discussion documents, again collected through participatory planning, would then provide a key document for decision-making. In so doing, planning officers would seek to promote constructive dialogue by reporting repeated arguments by residents as material justice issues to be considered against negotiated energy plans rather than, as Cass and Walker (2009) observed, dismissing them as self- interested, irrational and unwelcome intrusions into “rational” planning processes (McClymont and O'Hare 2008). 24 This article has sought to contribute new insights on public engagement with energy and environmental-social justice and the integration of justice issues into debates on renewable energy by drawing attention to deficits in the use of justice arguments by residents during wind energy conflicts in Cornwall. The small number of applications examined limits the scope for more than tentative generalisation and suggestions for fostering greater discussion of linkages between justice and wind energy. However, the contrast with previous studies that indicate strong community views on distributive and procedural fairness in wind energy decision-making (e.g. Bidwell 2013; Zoellner et al. 2008) highlights a need for greater investigation of how justice ideas are invoked and influence energy decision-making in “live” planning debates to improve understandings of the political and social factors influencing the mediation of energy and local environmental-social justice and national and local priorities. Surveys and interviews provide useful indicators of individuals’ reflective interpretations of distributive and procedural fairness but need to be supplemented by greater use of investigative techniques, such as analysis of public comments on planning applications and observing planning meetings, that directly probe people’s confidence to express justice concerns at the sharp end of decision-making. The evidence from this study certainly suggests that a significant gap exists between the two and a need for further research on mechanisms for encouraging and empowering open-ended debate on the justice dimensions of renewable energy Revising policy and planning to enable greater public debate on the justice dimensions of wind energy siting would almost certainly make renewable energy policy more contested. However, like Cass and Walker (2009: 68), we question whether discussion of values such as justice is undesirable if it enables: “productive forms of engagement… in which multi- directional and open dialogue between all parties is enabled and in which the emotions of public responses are acknowledged and respected as a necessary part of debating what is at stake.” This does not imply that justice arguments should become a vehicle for legitimating existing views. Rather, debating justice implies challenging preconceptions and finding points of accommodation within policy frameworks that place primary emphasis on procedural fairness to encourage trust-based dialogue on distributive and procedural fairness in energy siting debates. The challenge of designing decision-making and consultation procedures that increase people’s confidence and ability to contest unfair treatment is also not limited to wind 25 energy. Similar issues have dogged UK experiences with hydraulic fracturing for shale gas extraction where, in May 2016, the government overturned local authority refusal to grant an operating licence at Preston New Road, Lancashire, despite 18,022 objections compared with 217 expressions of support. Similarly, in December 2016 the high court ruled in favour of fracking at Kirby Misperton, North Yorkshire, where objectors outnumbered supporters by 4,300 to 36 (Kechagia 2017). In both instances, objectors vented frustration at the use of governing powers to support applications but have so far failed to reverse what Cotton (2017: 185) describes as “inherent contradictions of environmental justice in the… Government’s localist and planning reform agendas”. Reforming governance processes to enable public discussion of the justice dimensions of energy transitions, and placing procedural fairness at the heart of reforms to give public opinion genuine impact, seem both reasonable and judicious. The thornier question is whether governments are willing to open energy agendas to values as well as “rational” planning considerations. Some of the opinions might prove inconvenient for achieving rapid energy transitions, but a more inclusive approach would help to prevent energy policy being dominated by agenda-driven interpretations of energy and environmental-social justice. Notes 1 We use the term “environmental-social justice” to capture the fact that many issues positioned within environmental justice framings extend beyond environmental burdens to include wider social issues affected by energy and environmental policies (Walker, 2009). 2 Standard letters produced by applicants or agents were excluded to prevent distortion of the dataset. In one example, 162 of 208 submissions were standard letters supporting the application, mostly from people living outside Cornwall. 3 Although it is unlikely that supporters deliberately emphasised national and international issues to influence appeals, planning inspectors are required to assess applications against 26 the NPPF and may give less weight to local arguments that fall outside material planning considerations. 4 Under the Localism Act 2011, the government committed to devolving more decision- making powers to local authorities and to enabling local people to have a genuine say over issues affecting their area (DCLG, 2011). 5 Even the implications of DCLG guidance remain uncertain at the time of writing. In late 2016, the Secretary of State allowed an appeal in Cornwall arguing that, objections notwithstanding, the proposal indicated that the scheme’s impacts are, or can be, made acceptable and therefore can be deemed to have the backing of the affected local community (emphasis added) (DCLG, 2016). 27 References Anderson, C. 2013. The networked minority: how a small group prevailed in a local windfarm conflict. Energy Policy, 58, 97-108. Armeni, C., 2016. Participation in environmental decision-making: reflecting on planning and community benefits for major wind farms. Journal of Environmental Law, 28 (3), 415–441. Bailey, I., 2016. Renewable energy, neoliberal governance and the tragedy of the Cornish commons. Area, 48 (1), 119–121. Bickerstaff, K., Walker, G., and Bulkeley, H., eds, 2013. Energy justice in a changing climate: social equity and low-carbon energy. London: Zed Books. Bidwell, D. 2013. The roles of values in public beliefs and attitudes towards commercial wind energy. Energy Policy, 58, 189-199. Bulkeley, H., Edwards, G., and Fuller, S., 2014. Contesting climate justice in the city: examining politics and practice in urban climate change experiments. Global Environmental Change, 25, 31–40. Bullard, R.D., and Johnson, G.S., 2000. Environmentalism and public policy: environmental justice: grassroots activism and its impact on public policy decision making. Journal of Social Issues, 56 (3), 555–578. Cass, N., and Walker, G. 2009. Emotion and rationality: The characterisation and evaluation of opposition to renewable energy projects. Emotion, Space and Society, 2 (1): 62–69. Catney, P., et al., 2014. Big society, little justice? Community renewable energy and the politics of localism. Local Environment: The International Journal of Justice and Sustainability, 19 (7), 715–730. Chilvers, J., 2008. Deliberating competence: theoretical and practitioner perspectives on effective participatory appraisal practice. Science, Technology and Human Values, 33 (2), 155–185. Conservative Party, 2015. The Conservative Party Manifesto 2015 [online]. Available from: https://www.bond.org.uk/data/files/Blog/ConservativeManifesto2015.pdf [Accessed 15 June 2017]. https://www.bond.org.uk/data/files/Blog/ConservativeManifesto2015.pdf 28 Cornwall Council, 2016a. Operational Wind Turbines/Wind Farms 1/9/16 [online], Available from: http://www.cornwall.gov.uk/media/6012192/wind-turbine-operational.pdf [Accessed 2 September 2016]. Cornwall Council, 2016b. PV Applications 1/9/16 [online]. Available from: http://www.cornwall.gov.uk/media/6011305/PV-sites-applications-larger-sites.pdf [Accessed 2 September 2016]. Cotton, M., 2017. Fair fracking? Ethics and environmental justice in United Kingdom shale gas policy and planning. Local Environment, 22 (2), 185–202. Cotton, M. and Devine-Wright, P. 2011. Discourses of energy infrastructure development: a Q-method study of electricity transmission line siting in the UK. Environment and Planning A, 43 (4), 942-960. Cotton, M., and Devine-Wright, P., 2012. Making electricity networks “visible”: industry actor constructions of “publics” and public engagement in infrastructure planning. Public Understanding of Science, 21 (1), 17–35. Cowell, R. 2010. Wind power, landscape and strategic, spatial planning–the construction of ‘acceptable locations’ in Wales. Land Use Policy, 27 (2), 222-232. DCLG, 2011. A plain English guide to the Localism Act. London: DCLG. DCLG, 2012. National planning policy framework. London: DCLG. DCLG, 2013. Planning practice guidance for renewable and low carbon energy. London: DCLG. DCLG, 2016. Town and Country Planning Act 1990 – Section 78: appeal made by XXX, land at XXX: application Ref: XXX. London: DCLG. Delicado, A., et al. 2014. Not in anyone’s backyard? Civil society attitudes towards wind power at the national and local levels in Portugal. Science and Technology Studies, 2 (2), 49- 71. Devine-Wright, P., 2011a. Public engagement with large-scale renewable energy technologies: breaking the cycle of Nimbyism. Wiley Interdisciplinary Reviews: Climate Change, 2 (1), 19-26. http://www.cornwall.gov.uk/media/6012192/wind-turbine-operational.pdf http://www.cornwall.gov.uk/media/6011305/PV-sites-applications-larger-sites.pdf 29 Devine-Wright, P., 2011b. Enhancing place distinctiveness fosters public acceptance of tidal energy: a UK case study. Energy Policy, 39 (1), 83-93. Devine-Wright, P. 2012. Explaining “NIMBY” objections to a power line: the role of personal, place attachment and project-related factors. Environment and Behavior, 45 (6): 761-781. Dietz, S., and Stern, P., 2008. Public Participation in Environmental Assessment and Decision- Making. Washington: National Academies Press. Fuller, S., and McCauley, D., 2016. Framing energy justice: perspectives from activism and advocacy. Energy Research and Social Science, 11: 1–8. Goldthau, A., and Sovacool, B., 2012. The uniqueness of the energy security, justice, and governance problem. Energy Policy, 41, 232–240. Gross, C., 2007. Community perspectives of wind energy in Australia: the application of a justice and community fairness framework to increase social acceptance. Energy Policy, 35 (5), 2727–2736. Haggett, C., 2011. “Planning and persuasion”: public engagement in renewable energy decision-making. In P. Devine-Wright, ed. Renewable energy and the public, London: Earthscan, 15–28. Hall, S., 2013. Energy justice and ethical consumption: comparison, synthesis and lesson drawing. Local Environment: The International Journal of Justice and Sustainability, 18 (4), 422–437. Hansard, 2015. Communities and local government, local planning [online]. Available from: http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150618/wmstext/1506 18m0001.htm [Accessed 2 September 2016]. Healy, N., and Barry, J., 2017. Politicizing energy justice and energy system transitions: fossil fuel divestment and a “just transition”. Energy Policy, 108, 451–459. Heffron, R., McCauley, D., and Sovacool, B., 2015. Resolving society's energy trilemma through the energy justice metric. Energy Policy, 87, 168–176. Hernández, D. 2015., Sacrifice along the energy continuum: a call for energy justice. Environmental Justice, 8, 151-156. http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150618/wmstext/150618m0001.htm http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150618/wmstext/150618m0001.htm 30 Honneth, A., 2004. Recognition and justice: outline of a plural theory of justice, Acta Sociologica, 47 (4), 351–364. Howard, T., 2015. Olive branches and idiot's guides: frameworks for community engagement in Australian wind farm development. Energy Policy, 78, 137–147. Jenkins, K., et al., 2014. Energy justice, a whole systems approach. Queen’s Political Review, II (2), 74–87. Jenkins, K., et al., 2016. Energy justice: A conceptual review. Energy Research and Social Science, 11, 174–182. Jenkins, K., McCauley, D., and Forman, A., 2017. Energy justice: a policy approach. Energy Policy, 105, 631–634. Jobert, A., Laborgne, P., and Mimler, S. 2007. Local acceptance of wind energy: factors of success identified in French and German case studies. Energy Policy, 35 (5), 2751–2760. Kechagia, M., 2017. National interests and local inconveniences: experiences of (in)justice in UK shale gas fracking. Paper presented at the Nordic Geographers Meeting, Stockholm, 21 June 2017 [online]. Available from https://stockholmuniversity.app.box.com/s/izcofytmtcdui5qgedxju21w7vl3axe7 [Accessed 28 June 2017]. Kelly-Reif, K., and Wing, S., 2016. Urban-rural exploitation: an underappreciated dimension of environmental injustice. Journal of Rural Studies, 47 (A), 350–358. Klinsky, S., and Dowlatabadi, H., 2009. Conceptualizations of justice in climate policy. Climate Policy, 9 (1), 88–108. Langer, K., et al., 2016. A qualitative analysis to understand the acceptance of wind energy in Bavaria. Renewable and Sustainable Energy Reviews, 64, 248–259. MacCoun, R., 2005. Voice, control and belonging: the double-edged sword of procedural fairness. Annual Review of Law and Social Science, 1, 171–201. Maguire, L., and Lind, E., 2003. Public participation in environmental decisions: stakeholders, authorities and procedural justice. International Journal of Global Environmental Issues, 3 (2), 133–148. https://stockholmuniversity.app.box.com/s/izcofytmtcdui5qgedxju21w7vl3axe7 31 Malin, S., and DeMaster, K., 2016. A devil's bargain: rural environmental injustices and hydraulic fracturing on Pennsylvania's farms. Journal of Rural Studies, 47 (A), 278-290. Mason, K., and Milbourne, P., 2014. Constructing a “landscape justice” for windfarm development: the case of Nant Y Moch, Wales. Geoforum, 53, 104–115. McCauley, D., et al., 2013. Advancing energy justice: the triumvirate of tenets. International Energy Law Review, 32 (3), 107–110. McClymont, K. and O'Hare, P. 2008. “We're not NIMBYs!” Contrasting local protest groups with idealised conceptions of sustainable communities. Local Environment, 13 (4): 321–335. Mckee, K., 2009. Post-Foucauldian governmentality: what does it offer critical social policy analysis? Critical Social Policy, 29 (3), 465–486. Mitchell, C., 2008. The political economy of sustainable energy. Basingstoke: Palgrave Macmillan. Murdoch, J., 2004. Putting discourse in its place: planning, sustainability and the urban capacity study. Area, 36 (1), 50–58. Ofgem., 2016. About the FiT scheme [online]. Available from: https://www.ofgem.gov.uk/environmental-programmes/fit/about-fit-scheme [Accessed 2 September 2016]. Ottinger, G., Hargrave, T., and Hopson, E., 2014. Procedural justice in wind facility siting: recommendations for state-led siting processes. Energy Policy, 65, 662–669. RenewableUK, 2015. Why renewables matter [online]. Available from: http://c.ymcdn.com/sites/www.renewableuk.com/resource/resmgr/publications/reports/w hy_renewables_matter.pdf [Accessed 2 September 2016]. Rose-Redwood, R., 2006. Governmentality, geography, and the geo-coded world. Progress in Human Geography, 30 (4), 469–486. Rowe, G. and Frewer, L., 2004. Evaluating public-participation exercises: a research agenda. Science, Technology, & Human Values, 29 (4), 512-556. Schlosberg, D., 2004. Reconceiving environmental justice: global movements and political theories. Environmental Politics, 13 (3), 517–540. https://www.ofgem.gov.uk/environmental-programmes/fit/about-fit-scheme http://c.ymcdn.com/sites/www.renewableuk.com/resource/resmgr/publications/reports/why_renewables_matter.pdf http://c.ymcdn.com/sites/www.renewableuk.com/resource/resmgr/publications/reports/why_renewables_matter.pdf 32 Schlosberg, D., 2007. Defining environmental justice: theories, movements and nature. Oxford: Oxford University Press. Simcock, N. 2016. Procedural justice and the implementation of community wind energy projects: a case study from South Yorkshire, UK. Land Use Policy, 59, 467-477. Skitka, L., Winquist, J., and Hutchinson, S., 2003. Are outcome fairness and outcome favourability distinguishable psychological constructs? A meta-analytic review. Social Justice Research, 16 (4), 309–341. Sovacool, B., 2014. What are we doing here? Analysing 15 years of energy scholarship and proposing a social science research agenda. Energy Research and Social Science, 1, 1–29. Sovacool, B., et al., 2016. Energy decisions reframed as justice and ethical concerns. Nature Energy, 1, 16024. Sovacool, B., Sidortsov, R., and Jones, B., 2013. Energy security, equality and justice. London: Routledge. Sovacool, B. and Dworkin, M., 2014. Global energy justice: principles, problems, and practices. Cambridge: Cambridge University Press. Swyngedouw, E., 2010. Apocalypse forever? Post-political populism and the spectre of climate change. Theory, Culture and Society, 27 (2–3), 213–232. Tingey, M., Webb, J., and Hawkey, D., 2017. Local authority engagement in UK energy systems: highlights from early findings. London: UKERC and Loughborough. Usher, S., 2013. Defending and transcending local identity through environmental discourse. Environmental Politics, 22 (5), 811-831. Walker, G., 2009. Beyond distribution and proximity: exploring the multiple spatialities of environmental justice. Antipode, 41 (4), 614–636. Walker, G., and Bulkeley, H., 2006. Geographies of environmental justice. Geoforum, 37 (5), 655–659. Walker, G., and Day. R., 2012. Fuel poverty as injustice: Integrating distribution, recognition and procedure in the struggle for affordable warmth. Energy Policy, 49, 69–75. 33 West, J., Bailey, I., and Winter, M., 2010. Renewable energy policy and public perceptions of renewable energy: a cultural theory approach. Energy Policy, 38 (10), 5739–5748. While, A., Jonas, A., and Gibbs, D., 2010. From sustainable development to carbon control: eco-state restructuring and the politics of urban and regional development. Transactions of the Institute of British Geographers, 35 (1), 76–93. Wolsink, M., 2007. Wind power implementation: the nature of public attitudes: equity and fairness instead of “backyard motives”. Renewable and Sustainable Energy Reviews, 11 (6), 1188–1207. Young, I.M., 2000. Inclusion and democracy. Oxford: Oxford University Press. Zoellner, J., Scheizer-Ries, P. and Wemheuer, C. 2008. Public acceptance of renewable energies: results from case studies. Energy Policy, 36 (11), 4136-4141. 
work_d2cihzgtobc2lgtmi646y3lp5q	----	1 Von Hayek and Ordoliberalism on Justice Manuel Wörsdörfer 1 Abstract: Variations and disparities between von Hayek and Ordoliberalism can be detected on diverse levels: 1. philosophy of science, 2. setting dissimilar priorities, 3. social philosophy, 4. genesis of norms and 5. notion of freedom. As a consequence it is possible to make an important distinction within neoliberalism itself which contains at least two factions: von Hayek‟s evolutionary liberalism and German Ordoliberalism. The following essay not only takes the neoliberal separation of different varieties as granted; it proceeds further: it focuses on the topic of justice and elaborates the (slightly) differing conceptions of justice within neoliberalism. Thus, the specific contribution of the paper is that it adds a further, a sixth dimension of differences (which is highly interconnected with the already mentioned differing conceptions of genesis of norms). To put it differently: In the current paper I try to emphasize the (often neglected) subtle differences between von Hayek, Eucken, Röpke and Rüstow with special emphasis on their theories of justice. In this regard, I will not only focus on Eucken and von Hayek; instead, I will include the concepts of justice developed by Rüstow and Röpke as well and in consequence, broaden the perspective incorporating Eucken as a member of the Freiburg School of Law and Economics and Rüstow and Röpke as representatives of Ordoliberalism in the wider sense. The paper tackles these topics in three steps: After having briefly re-examined and discussed the existing literature and provided the reader with a literature overview on the decade-long debate on von Hayek and Ordoliberalism in the introductory chapter, part two describes von Hayek‟s conception of commutative justice respectively justice of rules and procedures (rather than end-state justice). The third part examines Eucken‟s, Rüstow‟s and Röpke‟s theory of justice which consists of a mixture of commutative and distributive justice. In the fourth paragraph I draw a comparison between the ideas of justice developed by Eucken, Röpke, Rüstow and von Hayek. The essay ends with a summary of my main findings. Keywords: Neoliberalism, Ordoliberalism, commutative and distributive justice, Walter Eucken, Friedrich August von Hayek. JEL Classification: B2, B3, B25, B52, P0 and Z1 1. Introductory Remarks: State of Research Many scholars and scientists have dealt with Ordoliberalism and von Hayek at great length and compared in particular the socio-economic theories of Walter Eucken and Friedrich August von Hayek. 2 To name just a few: Watrin (2000) analyzes the varying concepts of the state and government tasks. According to him, Eucken as a member of the Freiburg School of Law and Economics is favoring – more or less – a deliberately designed and „made‟ (constructivist) order while von Hayek on the other hand is highly in favor of an evolutionary, „grown‟ (spontaneous) order (i.e. constructivist rationalism vs. evolutionary/critical rationalism; see Hayek 1973). Streit and Wohlgemuth (2000a and 2000b) in turn point at the diverging leitmotivs underlying the conceptions of von Hayek and Eucken: In the centre of 1 Address for correspondence: Manuel Wörsdörfer, PhD candidate and research assistant of the Cluster of Excellence „The Formation of Normative Orders‟, Frankfurt University, Grueneburgplatz, 1, FB2, H.P.O. Box 47, 60323 Frankfurt am Main, Germany; e-mail: woersdoerfer@wiwi.uni-frankfurt.de. 2 The biographical and personal relationship-level (between von Hayek and Eucken) is presented in Karabelas 2010: pp. 69. mailto:woersdoerfer@wiwi.uni-frankfurt.de 2 Ordoliberalism is the topic of private power or – to put it differently – the question of how to avoid, eliminate or at least reduce the concentration of power in the economic and political sphere. To the contrary, von Hayek is not so much concerned with the problem of power as with the epistemological topic of knowledge. To be more precise: His major concern is the division or fragmentation of widely dispersed knowledge which can be utilized via competitive market processes operating as a discovery procedure. A similar approach as in Streit and Wohlgemuth (2000a and 2000b) and Watrin (2000) is presented by Kolev (2008). Kolev not only discusses the distinct roles of the state; additionally, he analyses Eucken‟s and von Hayek‟s concepts of monetary, competition and social policy as well. According to Pies (2001: pp. 123), the differences between Eucken and von Hayek are in fact merely of minor importance. The only true difference is that Eucken presents a theory of power while von Hayek presents a theory of knowledge. Finally, Bönker and Wagener (2001) are again emphasizing the differences between a self-generating, spontaneous formation of order and a political artifact-order. Besides the role of the state and the agenda of economic policy, they are referring to philosophy of science-aspects resulting from the diverging underlying leitmotivs already mentioned in the two essays by Streit and Wohlgemuth. In retrospect, it is striking that most of the just mentioned subsequent interpretations are highlighting the parallels while the differences are either of minor importance, as in the work of Pies, or they are presented one-sidedly: Von Hayek is often regarded as an Ordoliberal and the Freiburg School of Law and Economics, Ordoliberalism in the wider sense, and von Hayek are often talked about in the same breath (cp. Kolev 2010). The major differences are traced back to the diverging leitmotivs (power vs. knowledge) and/or the two concepts of order: made or grown order or in the Hayekian terminology: taxis and kosmos. These disparities are, no doubt, of eminent significance and they must not be underestimated and neglected. However, and that is essential to note, considerable differences can be found on different topics and not only on the just mentioned ones. Variations and disparities between von Hayek and Ordoliberalism in the wider sense can in fact be detected on diverse levels 3 : 1. philosophy of science: von Hayek‟s recognition of incomplete information, limits of reason and bounded rationality and his warning against pretence of knowledge vs. the ordoliberal quest for absolute truth and inherent epistemic optimism and malleability due to pure human reason; 2. setting dissimilar priorities: von Hayek‟s focus on the problem of knowledge and his re-interpretation of competition as a 3 The first two dimensions are mainly based on the literature mentioned prior. The third, fourth and fifth dimensions can be found in the work of Wörsdörfer 2010; 2011 and forthcoming. 3 discovery procedure vs. the ordoliberal focus on the problem of power and its re- interpretation of competition as an instrument of disempowerment; 4 3. social philosophy: von Hayek‟s focus on regulatory ethics vs. the ordoliberal combination of regulatory and individual/virtue ethics pegged to the topics of Gesellschaftskrisis and Vital Policy as one major peculiarity of German Ordoliberalism; 4. genesis of norms: von Hayek‟s cultural- evolutionary vs. the ordoliberal constructivist-elitist approach; and 5. notion of freedom: von Hayek‟s negative concept of liberty vs. the ordoliberal combination of negative and positive (Kantian) liberty. As a consequence it should be possible to make an important distinction within neoliberalism itself which contains at least two factions: von Hayek‟s evolutionary liberalism and German Ordoliberalism. 5 The current paper builds on the work of Renner (1999/2000), Quaas (2000), Hennecke (2008) and others evaluating the different varieties inside neoliberalism. Coming back once again to the literature review on the current state of research, what becomes clear and obvious is the fact that the theories of justice are more or less neglected. Only a few paragraphs are dedicated to this topic (cp. Bönker/Wagener 2001: pp. 190-191; Streit/Wohlgemuth 2000a: pp. 486-489 and Streit/Wohlgemuth 2000b: pp. 249-251). The only exception in this regard is Kolev. The following essay not only takes the neoliberal separation of different varieties stated by Renner et al. as granted; it proceeds further: it focuses on the topic of justice and elaborates the (slightly) differing conceptions of justice within neoliberalism. Thus, the specific contribution of the paper is that it fills the gap and that it adds a further, a sixth dimension of differences (which is highly interconnected with the already mentioned differing conceptions of genesis of norms). To put it differently: In the current paper I try to emphasize the (often neglected) subtle differences between von Hayek, Eucken, Röpke and Rüstow with special emphasis on their theories of justice. As stated above, I will not only focus on Eucken and von Hayek; instead, I will include the concepts of justice developed by Rüstow and Röpke as well and in consequence, broaden the perspective 4 In this regard von Hayek‟s (relatively) laissez faire attitude towards (private and natural) monopolies and large size corporations is remarkable (cp. Hayek 1979: pp. 77; Hennecke 2008: pp. 150). He even speaks of a „problem of antimonopoly legislation‟ due to the discretionary and arbitrary powers of public authorities intervening in market processes. His mistrust in state authorities is even higher than his mistrust in monopolies and big enterprises. “… it is not monopoly as such but only the prevention of competition which is harmful. […] a monopoly that rests entirely on superior performance is wholly praiseworthy …” (both: Hayek 1979: p. 83). 5 Furthermore, we have to distinguish between von Hayek, the Chicago School and Monetarism – all part of (modern) neoliberalism: On many occasions, von Hayek emphasizes the privatization of central banks, pleads for the „Denationalization of Money‟, a free market in money (i.e. free banking), and rejects the government monopoly on currency. In addition, he clearly criticizes (Friedman‟s) quantity theory of money (see e.g. Hennecke 2000; 2008: pp. 151 and Karabelas 2010: pp. 64). As a result, von Hayek is not a „Chicago Boy‟, although he was lecturing at the University of Chicago for more than a decade. Finally, von Hayek has to be (clearly) separated from Buchanan‟s Constitutional Economics, and Murray N. Rothbard and libertarian „anarcho-capitalism‟. 4 incorporating Eucken as a member of the Freiburg School of Law and Economics and Rüstow and Röpke as representatives of Ordoliberalism in the wider sense. The paper tackles these topics in three steps: After having briefly re-examined and discussed the existing literature and provided the reader with a literature overview on the decade-long debate on von Hayek and Ordoliberalism in the introductory chapter, part two describes von Hayek‟s conception of commutative justice respectively justice of rules and procedures (rather than end-state justice). The third part examines Eucken‟s, Rüstow‟s and Röpke‟s theory of justice which consists of a mixture of commutative and distributive justice. In the fourth paragraph I draw a comparison between the ideas of justice developed by Eucken, Röpke, Rüstow and von Hayek. The essay ends with a summary of my main findings. 2. Social Justice as a ‘Weasel-Word’? Von Hayek on Justice “It is now necessary clearly to distinguish between two wholly different problems which the demand for „social justice‟ raises in a market order. The first is whether within an economic order based on the market the concept of „social justice‟ has any meaning or content whatever. The second is whether it is possible to preserve a market order while imposing upon it (in the name of „social justice‟ or any other pretext) some pattern of remuneration based on the assessment of the performance or the needs of different individuals or groups by an authority possessing the power to enforce it. The answer to each of these questions is a clear no” (Hayek 1976: pp. 67). “… the addition of the adjective „social‟ makes them capable of meaning almost anything one likes. The word has indeed become one of the chief sources of confusion of political discourse and can probably no longer be reclaimed for a useful purpose” (Hayek 1976: pp. 79). Von Hayek denotes distributive or social justice as an “atavism” 6 (Hayek 1976/1996a), as an “illusion” (Hayek 1976/1996b; 1978/1996a: p. 63) and as a “weasel-word” (Hayek 1979/1996: p. 277) – mainly used by constructivists. 7 As a consequence, he pleads for a 6 According to von Hayek, social justice rests upon basic instincts, passions and traditions of small, face-to-face communities. Therefore, social justice regarded as a relic of pre-modern times prevents the transformation towards a modern, impersonal and abstract society of commerce. By relying on inherent instincts and primitive feelings, social justice concepts are exposed to misuse by prophets and constructivists (Hayek 1978/1996a: p. 55). 7 A similar critique is also forwarded against the ordoliberal „Third Way‟ and the concept of the Social Market Economy, often denounced as a blank or magic formula (Leer- or Zauberformel). In volume 2 of Law, Legislation and Liberty, von Hayek even speaks of social/distributive justice as an empty and meaningless concept. It is said to be meaningful only within organizations and/or a centrally planned economy. Moreover, he describes it as the “new religion of our time” (Hayek 1976: p. xii), as a “quasi-religious superstition” (both: p. 66), as a “cult” (p. 99) and as a “pseudo-ethics” (Hayek 1979: p. 135). 5 „market economy without any attributes‟. According to von Hayek, social justice is often introduced as a way to legitimize special interests and exclusive privileges, and to grant permissions and exceptions (Hayek 1973/1996: pp. 252; 1976/1996a: pp. 181). Due to its vulnerability to the misuse of rent seeking groups, social justice is irreconcilable with a market economy in the terms of von Hayek (Hayek 1973/1996: p. 258): i.e. the market as a self-regulating, spontaneous order 8 (kosmos) (e.g. Hayek 1966/1996: 263) and as a product of cultural evolution (see Hayek 1973: pp. 8 and 1983/1996) relying on abstract, impersonal and negative general rules or prohibitions independent of particular purposes 9 and on the notion of negative freedom (Hayek 1978/1996b: p. 230; 1979: pp. 130). Von Hayek‟s reasons for dismissing the concept of social justice are manifold (Hayek 1976/1996b: pp. 197): First of all, social justice (and its constructivist organization) reduces productivity, economic efficiency and, therefore, the overall wealth of a society – by not drawing on competition as a discovery procedure (Hayek 1968/2002; 1979: pp. 67) and by not drawing on the decentralized individual knowledge and know-how (Hayek 1976/1996a: p. 191; 1978/1996a: p. 61). 10 Second, social justice and the accompanying (authoritative) process of correcting redistribution to the benefit of certain population groups (Hayek 1976/1996a: p. 189) is necessarily attached to coercion and state interventionism resulting in a threat to individual liberty (Hayek 1976/1996a: p. 191; 1976/1996b: pp. 194; 1978/1996b: p. 236 11 ). Third and finally, social justice cannot be realized due to the fact that a common criterion of justice is missing. There is simply no objective criterion of distributive justice and it seems unlikely that a common consent on what justice involves will be reached (Hayek 1976/1996a: p. 182; 1978/1996b: p. 236)). By unilaterally and authoritatively prescribing a definition of justice and the way to implement a program of social justice, the problem of pretence of knowledge (Hayek 1944/2007: pp. 100; 1974/1996) arises: It is not feasible for the planning authorities to take full account of the countless changing individual needs of consumers; no one can survey the socio-economic process as a whole. Concretely, nobody 8 Von Hayek distinguishes two kinds of „order‟: a spontaneous order and a constructivist organization (Hayek 1966/1996: pp. 263; 1970/1996; 1973: pp. 35). 9 General abstract rules – together with spontaneous order and the use of decentralized information via markets and competition – are distinctive of an open society (cp. Popper 1957/2003; 1958/2003; Hayek 1976/1996a). These kinds of rules prescribe what individuals are not to do; otherwise, they are free to pursue their own personal interests. 10 Only purpose-free and end-independent general rules – rather than rules based on discretionary power and outcome considerations – allow for economic freedom in the Hayekian sense and, as a consequence, foster the overall wealth of a nation; see also Hayek 1944/2007: p. 96: “… division of knowledge between individuals whose separate efforts are coordinated by the impersonal mechanism for transmitting the relevant information known by us as the price system.” 11 Cp. Hayek 1944/2007: p. 117: “… any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law.” 6 knows how a just income distribution has to look like, and an externally imposed scale of incomes is necessarily connected with the violation of consumer sovereignty and will lead to totalitarian mastery (Hayek 1976/1996b: pp. 197). Von Hayek even claims that distributive justice leads to economic dictatorship (Hayek 1976/1996b: p. 198). However, von Hayek is not dismissing the concept of justice as a whole; rather, although he is highly critical of the concept of (re-)distributive or social justice, he defends the concept of commutative justice respectively justice of rules, procedures and institutions (Hayek 1944/2007: p. 113). Even though it is not appropriate to meaningfully assess the results of the market process according to values of social or distributive justice (i.e. market outcomes are from an ethical perspective morally neutral and the market process itself is anonymous and ethically indifferent), it is indeed permissible to evaluate the market behavior of each of the market transaction partners. Therefore, the market game – von Hayek often refers to the market game as catallaxy (i.e. exchange game) – is liable to (procedural) justice requirements. In this regard, Vanberg (2006) distinguishes three levels of potential justice considerations: 1. rules of the game (i.e. justice of order of rules/constitution of the market) 12 ; 2. plays of the game (i.e. justice of behavior respectively codes of conduct of market players); 3. results of the game (i.e. justice of outcomes of market mechanisms). As stated by von Hayek and Vanberg, the rules of the game have to be mainly negative, abstract and universally applicable. Their task is to legally frame and regulate the market as an arena of voluntary exchange and cooperation for mutual benefits. Formal rules and institutions have to be based on consensual constitutional interests and they have to be mutually and voluntarily agreeable. Under the condition that the rules of the game are fair and overall acceptable and that the behavior of each participant complies with the rules of the game, the results of the game have to be taken as they are (i.e. there is no such thing as a redistribution according to social justice criteria). 13 The outcomes of an ex-ante specified course of the game have to be accepted with 12 Von Hayek points out that a just behavioural code is vital for a peaceful society of free individuals; however, the attempt to realise social justice is mutually incompatible with such a society (Hayek 1976/1996a: p. 181). 13 Cp. Hayek 1978/1996b: p. 237: „Der Liberalismus verlangt nur, daß die Bedingungen oder die Spielregeln, durch welche die relativen Positionen der verschiedenen Menschen bestimmt werden, gerecht sind […], jedoch nicht, daß die Ergebnisse des Prozesses im einzelnen für die verschiedenen Menschen gerecht sind …“ Essential are formal equality, impartiality, fairness, the absence of discriminations of any kind, and equality of opportunity. Even an income redistribution via a progressive fiscal system is not allowed due to the fact that it violates the principle of equal treatment, non-arbitrariness and equality before the law (i.e. taxation has to be conducted according to the principle of equality and not for the purpose of redistribution; cp. Hayek 1973/1996: p. 256; 1978/1996b: p. 238). Furthermore, redistribution is tied to the emergence of the modern welfare state with its large machinery of bureaucracy and the increase of state control even in the economic sector, while at the same time personal liberty is threatened (cp. Hayek 1960). What is needed is a demarcation of the state‟s tasks and a clear, transparent and strict definition of the limits of responsibility and powers of p ublic authorities. In sum, the reallocation of incomes via a progressive tax system and to the benefit of the worst-off in a society is 7 all their inequalities and randomness; i.e. the results of market mechanism evade entirely their evaluation according to justice criteria or in other words: it is not permissible to apply moral categories on the outcomes of market processes, von Hayek (1973/1996: pp. 258; 1976/1996b: p. 200) states. It is merely possible to agree on procedural justice; yet, there is no guarantee of overall advantages and gains once the rules of the game have been implemented. Each game involves several risks and potential losses which have to be taken into account (ex-post correction or redistribution is not permissible once an agreement of rules and procedures has been reached). What is important is that the results of the game are coming into being under fair and just conditions and that each individual pursues his or her self- interests within the legally defined framework (i.e. rule-based adherence and compliance with the legislation). In sum: justice of procedures and rules (i.e. universal applicability of consensual rules independent of special interests) – yes; justice of (equal/egalitarian 14 ) results and outcomes including just wages, just prices and a just income distribution 15 – no! Von Hayek clearly favors the concept of commutative justice and he abhors distributive or social justice focusing solely on outcomes and reallocation (see Hayek 1978/1996b: pp. 235). 16 Fundamental to von Hayek‟s concept of commutative justice are the already mentioned abstract general rules, the freedom to enter into contracts respectively contract law, private property and a socio-economic and legal framework or an (impersonal) order of rules guaranteeing the universal applicability and the equal compliance to rules (i.e. fairness of the game) and the prevention of fraud and deception. 17 In addition, they should guarantee the equal and impartial treatment and non-discrimination of persons. By doing so, commutative justice is able to increase the overall wealth of a society and, thus, the general well-being of an average individual – even the poor are much better-off in a market society fulfilling the criteria of von Hayek compared to a centrally administered economy. According to von at odds with (von Hayek‟s) principle of equality before the law (cp. Hayek 1978/1996b: p. 238; see also Hayek 1960: pp. 306). 14 Von Hayek is highly critical of socio-economic egalitarianism and uniformist minimum wages: cp. Hayek 1976/1996b: p. 202; 1960: pp. 48; pp. 85; pp. 285. From a Hayekian perspective, egalitarianism is highly correlated with discrimination and coercion. It is, therefore, incompatible with von Hayek‟s definition of liberty as the absence of constraint and compulsion. In Law, Legislation and Liberty, he clearly warns against egalitarianism and material equality (Hayek 1976: pp. 80) due to the fact that it requires economic interventionism for its fulfillment: absolute equality of material positions equals the submission of great masses under the command of some elite who manages the affairs of others. Therefore, egalitarianism can only be met by a government with despotic and totalitarian powers. 15 Cp. Hayek 1944/2007: p. 140: “… what is a “just price” or a “fair wage“?“ 16 „… sie beruht auf der Überzeugung, daß es möglich sei, objektive Regeln richtigen Verhaltens unabhängig von Sonderinteressen zu entdecken, und sie fragt nur, ob das menschliche Verhalten gerecht ist oder die Regeln, die es leiten, aber nicht, welche Ergebnisse dieses Verhalten für einzelne Menschen oder Gruppen zeitigt“ (Hayek 1978/1996b: p. 235). 17 State authorities are responsible for monitoring the adherence to the rules of the game and for taking care, that individual behaviour pursuing self-interests within the rules of the game leads to commonly desirable results. 8 Hayek, commutative justice has no regard for personal needs and individual merits (in the sense of Verdienst and Bedürfnis) (Hayek 1976/1996a: p. 186; 1976/1996b: p. 196; 1960: pp. 231). 18 What is important is the (economic) value of a performance in the eye of a recipient (Hayek 1976/1996b: p. 196). 19 Each payment correlates to the worth of a performance – pointing again at the importance of the principle of equivalence. Although it is not advisable from a Hayekian perspective to correct the (distributive) outcomes of market processes or to intervene in the market mechanism itself as (process-political) distributive justice would do, there remains one way open for social reforms: changing or correcting the rules of the game or reforming the Ordnungspolitik-level as Eucken claims. 20 2.1. Law, Legislation and Liberty: The Mirage of Social Justice Since Hayek‟s trilogy Law Legislation and Liberty is often considered as his opus magnum – especially in the field of the theory of justice – it is essential to incorporate a paragraph here before analyzing in detail the ordoliberal concept of justice. Here, what becomes clear is the interconnectedness of his theory of impersonal justice based on formal (abstract and end- independent) rules with the twin-concepts of cultural evolution and spontaneous order. At the centre of von Hayek‟s negative theory of justice (Hayek 1979: pp. 130) are the legal rules of just conduct and the design of political institutions (Hayek 1976: p. 100). It is not a positive conception of justice which makes it an obligation of administration and government to distribute and reallocate wealth equally among citizens (p. 103). Rather, what is important is to evade injustice and, thus, approach the (unattainable) ideal state of absence of injustice (p. 54). As claimed by von Hayek, a positive (i.e. agreeable and consensual) criterion of justice does simply not exist (p. 42), 21 only negative ones are obtainable indicating what is unjust. Merely an objective and that means an interpersonally valid (negative) test of injustice 18 See also Hayek 1976: p. 82: “Since people will differ in many attributes which government cannot alter, to secure for them the same material position would require that government treat them very differently. […] to compensate for those disadvantages and deficiencies it could not directly alter.” He continues to say: “… because these rewards correspond not to the value which their services have for their fellows, but to the moral merit or desert the persons are deemed to have earned, they lose the guiding function they have in the market order and would have to be replaced by the commands of the directing authority”. 19 Von Hayek (1976: p. 72) notes: “… these values which their services will have to their fellows will often have not relations to their individual merits or needs.” 20 “… although we can endeavour to improve a spontaneous order by revising the general rules on which it rests, and can supplement its results by the efforts of various organizations, we cannot improve the results by specific commands that deprive its members of the possibility of using their knowledge for their purposes” (Hayek 1973: p. 51). 21 I.e. complete lack of a recognized standard of „social justice (cp. Hayek 1976: pp. 90): “… there are no practicable standards of merit, deserts, or needs, on which in a market order the distribution of material benefits could be based …” (here: p. 91). 9 enables us gradually to remove these kinds of rules which prove to be unjust and which are, therefore, not universalizable. 22 Instead of granting (non-achievable and non-enforceable) positive rights, the socio-political order should rest on negative rights and commutative justice. Such an ideal of impersonal justice (rather than sectional justice) is based on formal rules, and to be more precise, it is based on spontaneously grown rules, not on deliberately planned/made rules brought about by deliberate human design (i.e. “the result of human action but not of human design” (Hayek (following Ferguson) 1973: p. 20)). This evolutionary approach to law involves the rejection of the interpretation of law as a deliberate construct of super-natural forces (Hayek 1976: p. 60). According to von Hayek, it is not possible in a Great Society to agree on ends. Agreement can only be reached on means or to put it differently on rules of just conduct 23 : “… rules of just conduct serve not (concrete or particular) ends but (abstract and generic) values …” (p. 14). These rules intend to apply for an indefinite period, “… to an unknown number of future instances and to the acts of an unknown number of persons, and merely states certain attributes which any such action ought to possess …” (p. 14; see also p. 35 and 130). These abstract rules embody the knowledge and traditional experience which has been generated and transmitted over time. Thus, they are a device, a tool for coping with human ignorance and uncertainty. Abstract rules are the guides in a world in which most things are unknown (i.e. limits of reason and lack of knowledge 24 ; see pp. 8). The big advantage of such rules – together with other impersonal and abstract mechanisms like competitive markets – is the utilization of factual knowledge widely dispersed among thousands of individuals (i.e. fragmentation of knowledge (Hayek 1973: p. 14; 1976: p. 8)). The task of public authorities is the enforcement of the observance of abstract rules of (just) conduct, the preservation of a rule-governed spontaneous order (kosmos instead of taxis/organization with its end-governed character): “Only if applied universally, without regard to particular effects, will they serve the permanent preservation of the abstract order, a timeless purpose which will continue to assist the individuals in the pursuit of their contemporary and still unknown aims. Those rules 22 See Hayek 1976: p. 43: “… „juridical laws [must] abstract altogether from our ends, they are essentially negative and limiting principles which merely restrict our exercise of freedom.‟” 23 “… individuals are not required to agree on ends but only on means which are capable of serving a great variety of purposes and which each hopes will assist him in the pursuit of his own purposes” (Hayek 1976: p. 3). 24 Cp. Hayek 1976: p. 39: “It is as much because we lack the knowledge of a common hierarchy of the importance of the particular ends of different individuals as because we lack the knowledge of particular facts, that the order of the Great Society must be brought about by the observance of abstract and end-independent rules.” Due to the inherent limits of knowledge and reason it is simply not possible to rationally construct the whole of society, von Hayek continues to say: “But an order of the complexity of modern society can be designed neither as a whole, nor by shaping each part separately without regard to the rest, but only by consistently adhering to certain principles throughout a process of evolution” (Hayek 1973: p. 60). 10 which are common values serve the maintenance of an order of whose existence those who apply them are often not even aware” (p. 17). The key feature of such negative rules restraining individual action is their generalization and universal applicability 25 (cp. Kant‟s test of unversalizability, the Categorical Imperative: i.e. principle of treating all under the same rules). Moreover, they are end-independent and purpose-free, that means that they serve unknown particular ends. Therefore, they are mainly responsible – together with the constitutional state – for forming and preserving a spontaneous order or in Böhm‟s terminology: a private law society. “What rules of just conduct in fact do is to say under what conditions this or that action will be within the range of the permissible; but they leave it to the individuals under these rules to create their own protected domain. […] Since the consequences of applying rules of just conduct will always depend on factual circumstances which are not determined by these rules, we cannot measure the justice of the application of a rule by the result it will produce in a particular case” (pp. 37). Negative rules of just conduct are primarily prohibitions of unjust behavior; in addition: it is only feasible to judge actions by rules, not by particular results. Particular results of a socio-economic process – which follow from the application of rules to an individual case – cannot be regarded as just or unjust (p. 32). So, negative rules do not impose any duties or obligations on anyone. Von Hayek notes: “Justice is not concerned with those unintended consequences of a spontaneous order which have not been deliberately brought about by anybody. The rules of just conduct thus merely serve to prevent conflict and to facilitate co-operation by eliminating some sources of uncertainty” (p. 38). Von Hayek‟s problem with social justice is that it rolls back the transition from a small-face- to-face-society towards an abstract and spontaneous order of the Great Society. It will inevitably lead into a path towards an end-connected tribal society (teleocracy) and gradually destroy the rule-connected open society (nomocracy) (p. 38). In this regard von Hayek speaks of distributive justice as an atavism and as Rousseauian nostalgia: “They are an atavism, a vain attempt to impose upon the Open Society the morals of the tribal society which, if it prevails, must not only destroy the Great Society …” (p. 147). He continues to say: “Our present moral views undoubtedly still contain layers or strata deriving from earlier phases of the evolution of human societies – the small horde to the organized tribe, the still larger groups of clans and the other successive steps towards the Great Society” (p. 42). The (alleged) revival of „tribal ethics‟ with its persistent conflict between tribal morals and 25 According to von Hayek (1976: p. 143) “universal justice [has to be] equally applicable to the stranger and to the member of the group.” 11 commutative justice of the Great Society, with its clash between the sense of loyalty and the sense of negative justice (p. 147), and with its all-pervading loyalty to particular groups and communities is the greatest obstacle to a universal application of rules of just conduct. Such a revival of ancestral sentiments and organizational thinking is according to von Hayek highly related to the ideologies of socialism and nationalism. They are the main driving forces behind the prevalent constructivist rationalism and the decline in the understanding of the operation of markets (p. 134). Social justice with its anthropomorphism and personification of justice and society (Hayek 1973: pp. 26; 1976: p. 75) “serves [at least from a Hayekian perspective] to support deep-seated emotions that are threatening to destroy the Great Society” (p. 133; i.e. threat of the totalitarian state). 26 As said by von Hayek, a gradual transformation from commutative to distributive justice is currently taking place. This self-accelerating 27 process threatens most values of a free society, since distributive justice is wholly incompatible with the rule of law and with freedom under the law. In the end, it will directly lead to socialism and despotism subordinating citizens to authority and placing the duty of justice on authorities with power to command and coerce people (i.e. totalitarian trend). In the words of von Hayek: Social justice serves as “the Trojan Horse through which totalitarianism has entered” (p. 136). The appeal to social justice and the demand of a just distribution of wealth leads to government action and intervention on behalf of special interest groups (p. 65). These particular rent seeking groups “… have learnt to employ the open sesame of „social justice‟” (p. 67) and succeeded in “clothing their demands with the aura of legitimacy […] by representing them as a requirement of „social justice‟” (p. 141). In consequence, the call to society/public authorities in the name of social justice and the misusage of the term distributive justice has opened the floodgates “to the demand by all who found their relative position threatened that their position be protected by government action” (p. 140). Moreover, it promotes the belief that long established positions create a just expectation that they will persist and it reinforces the idea that we morally deserve what we have earned in earlier periods (pp. 93): hence, social justice leads to the protection of habitual and familiarized positions and entrenched vested interests – often camouflaged as an appeal to social justice and often disregarding the common interest of society (see e.g. p. 96). In addition, it leads to a 26 Cp. Hayek 1976: p. 136: “The values which still survive from the small end-connected groups whose coherence depended upon them, are, however, not only different from, but often incompatible with, the values which make possible the peaceful coexistence of large numbers in the Open Society. The belief that while we pursue the new ideal of this Great Society in which all human beings are regarded as equal, we can also preserve the different ideals of the small closed society, is an illusion.” 27 “So long as the belief in „social justice‟ governs political action, this process must progressively approach nearer and nearer to a totalitarian system” (i.e. road to serfdom; Hayek 1976: p. 68). 12 struggle of power of organized interests in which arguments of social justice serve merely as pretexts and pretences for claims for privileges. Thus, they will destruct the Great Society with its freedom of discrimination from within (i.e. fragility of the liberal open society). Coming back once again to the already discussed implications of market mechanisms it is plausible from a Hayekian perspective that the concept of justice is not applicable to the results of a spontaneous order: the outcomes of market processes are simply not unjust, because: “Those shares are the outcome of a process the effect of which on particular people was neither intended nor foreseen by anyone when the institutions first appeared …” (p. 64). “There is no need morally to justify specific distributions (of income or wealth) which have not been brought about deliberately but are the outcome of a game that is played because it improves the chances of all. In such a game nobody „treats‟ people differently and it is entirely consistent with respecting all people equally that the outcome of the game for different people is very different” (p. 117). In a free and pluralistic society which lacks a common hierarchy of ends, the market order does not serve a single order or hierarchy of ends; its activities are not directed by a unique scale of ends (pp. 107). The market order, or as von Hayek describes it, the game of catallaxy 28 is a wealth-creating and poverty-eliminating game. It is a challenging competition played by individuals according to rules and decided by superior skill, talent, strengths and fortune. Von Hayek notes: “A catallaxy is thus the special kind of spontaneous order produced by the market through people acting within the rules of the law of property, tort and contract” (p. 109). “Even in a game with equal chances for all players there will be some winners and some losers” (p. 126). “In such a game in which the results for the individuals depend partly on chance and partly on their skill, there is evidently no sense in calling the outcome either just or unjust” (p. 126). Justice is simply the wrong category of evaluating market processes. As stated by von Hayek, only the conduct of the players but not the results of the economic contest can be just or unjust (see p. 70). The market order is a game partly of skill and partly of chance with unpredictable outcomes (determined by skill and luck) and with winners and losers at the same time. What justice requires are the fairness of the game and the exclusion of cheating, fraud, oppression and monopoly powers. 29 “The remunerations which the individuals and groups receive in the market are thus determined by what these services are worth to those who receive them… [and they are totally unrelated with needs and merits]” (p. 76). “… all that counts is the 28 I.e. discovery procedure which the competitive market order constitutes: “It is by this conveying of information in coded form that the competitive efforts of the market game secure the utilization of widely dispersed knowledge” (Hayek 1973: p. 117). And von Hayek continues to say: “… price mechanism operates as a medium of communicating knowledge” (p. 125). 29 See Hayek 1976: pp.73: “it was only „the way in which competition was carried on, not its results‟…” 13 (marginal) value the services have to those to whom they are rendered. […] based on the values the services have to the user and not on an assessment of merit earned.” (p. 92). Von Hayek is convinced that all “… the attempts to „correct‟ the results of the market in the direction of „social justice‟ have probably produced more injustice in the form of new privileges, obstacles to mobility and frustration of efforts that they have contributed to the alleviation of the lot of the poor” (pp. 139). Thus, it is essential – at least from a Hayekian perspective – to abide by the market result also when it turns against us. 3. The Ordoliberal Synthesis of Commutative and Distributive Justice 3.1. Eucken’s Theory of Justice Contrary to von Hayek, Walter Eucken‟s concept of justice is multidimensional, incorporating commutative and distributive justice elements as well as justice of rules, procedures, and institutions elements. 30 Even though Eucken is aware of the inherent problems of distributive or social justice – namely the potential institutionalization of discretionary powers 31 via opening gateways for special interest groups leading into a Hayekian „Road to Serfdom‟ (i.e. slippery slope argument) – he is also conscious of the social question 32 as one major 30 See also Vogt 1999/2009; Klump/Wörsdörfer 2010 and chapter 7.3 (Introductory Remarks) in: Wörsdörfer 2011. 31 Two arguments speak against discretionary interventions and process policy and for preferring a rule- constrained and rule-oriented policy over an interventionist, outcome-focused economic policy: first of all, the cognitive limits of (human) knowledge mentioned by von Hayek (i.e. constructivist rationalism commits the following faults: pretence of knowledge, absent recognition of the limits of rational control, defiance of the complex interdependencies in socio-economic systems) and secondly, the fact that discretionary interventionist government policy is much more vulnerable to rent-seeking than a government constrained in its decisions by general rules (cp. the Freiburg School of Law and Economics). 32 Eucken distinguishes three different kinds of social questions through the ages: 1. stage of injustice and inequality of distribution (starting with the industrial revolution and lasting until World War I), 2. stage of (mass) long-term unemployment (1920ies/1930ies), and 3. stage of overcoming insecurity stemming from unemployment, but erosion of a new form of uncertainty, injustice and insufficient supply of necessary goods and services resulting from socio-economic and political power concentration (since the mid-1930ies; Eucken 2001: pp. 45). The status quo is now dominated by powerful organizations (i.e. cartels, trusts, employer‟s association and trade/labor unions) and the present economic policy assumes the shape of corporatism and equals a centrally planned economy. All this caused a tremendous shift of the environmental conditions of the working class which can be characterized by three distinct aspects: scant supply of goods and services, injustice of distribution and insecurity. So the present social question incorporates all the elements of the previous ones. Moreover, a new kind of people is – as a direct consequence of the new social question – in the making: mass people that are solely dependent on the state; their human freedom is endangered and they equal (spare) parts within the big societal machine („Ein neuer Menschentypus ist im Entstehen, der aus vermaßten, vom Staate abhängigen Menschen besteht. Das ganze Leben wird allmählich verstaatlicht“ (Eucken 1948: p. 331)). At the heart of the new social question is, therefore, personal freedom (i.e. social problem: subservience of the individual to a massive and bureaucratic state machine, in which the individual becomes a means for the achievements of the ends of the ruling class; cp. Sally 1996): Security and social justice cannot be achieved without individual liberty. Thus, freedom, justice and security are inseparable; they are intertwined and not opposed to each other (cp. Eucken 2001: pp. 38). Eucken notes: „Die Unfreiheit ermöglichte den Druck auf die Daseinsbedingungen. Die Herrschaft privater oder öffentlicher Machtkörper gefährdete die Durchsetzung der Gerechtigkeit; und mangelnde Sicherheit entsprang aus mangelnder Freiheit. Ohne Freiheit der Person ist die 14 consequence of the industrial revolution. Thus, Eucken and other Ordoliberals endeavor to overcome the (new) social question – which is interlinked with the problem of socio- economic power – by granting social security, a minimum subsistence level respectively basic social care and if needed guaranteed minimum wages – and so they are referring to re- distributive instruments as well (even though the focus remains on commutative justice). It is striking that Eucken does not provide the reader with a clear-cut and distinct definition of (social) justice. He does not offer a unified concept of justice and the normative-philosophical foundations remain fairly vague (a similar accusation is – by the way – applicable to Eucken‟s concept of liberty). Nonetheless, Eucken‟s understanding of justice is integrated in his dual criteria requirement which has to be fulfilled by an ordoliberal socio-economic order: such an order has to be functioning and humane at once (the latter is often used as a synonym for freedom and (social) justice). In general, Eucken‟s competitive order is a good way to reach (social) justice: the formation of incomes – based on the notion of private property as an eminent pre-condition of liberty and the freedom to enter into contracts – is subject to the control and sanctioning mechanisms of competition and liability (Eucken 1952/2004: p. 275; pp. 279; p. 317). Moreover, the competitive order with its focus on Ordnungspolitik is responsible for dissolving market powers, for controlling monopolies, cartels, trusts and syndicates, and for preventing the abuse of discretionary powers mainly used by rent seekers (cp. Eucken‟s constituent and regulative principles in: Eucken 1952/2004: pp. 254). Consequently, an approximately power- free socio-economic order guarantees a relatively just income distribution by taking scarcities and shortages into consideration but not market powers 33 (Eucken 1952/2004: p. 316). To put it differently: Market processes which stick to ordoliberal principles are in general fair and just. Such an order does not only promote the overall wealth of a society (cp. the above chapter on von Hayek); it also adheres to the principle of performance and capability (Leistungsfähigkeitsprinzip) and what is most important, it is in accordance with justice of soziale Frage nicht zu lösen“ (Eucken 2001: p. 45). The best way to solve or to overcome the social question is not the adopted path or road to welfare state – this kind of social policy has often lead to an aggravation of the social question; instead, what is necessary is the creation of an ordoliberal competitive order with its unique unity of social- and constitutional ordering policy (i.e. Einheit von Sozial- und Wirtschaftsverfassungspolitik). Social justice may be achieved (and the social question may be overcome) via market-conforming interventions of social policy together with the establishment of a functioning institutional framework ensuring and protecting civil rights and liberties and a humane and dignified life by removing (excessive) private and public power concentrations. Social policy in the sense of being part of ordering policy is socially legitimate when it guarantees individual freedom and when it acts as an instrument of disempowerment. The (solving of the) social question is therefore highly related with the question of personal freedom and the negation of socio-economic power (see also Eucken 1952/2004: pp. 122 and pp. 185; Becker 1965; Külp 2000). 33 On the contrary, positions based on market powers are distorting the just generation of incomes and leading to an unjust distribution of incomes. 15 contracts and exchange (Vertrags- and Tauschgerechtigkeit). The freedom to enter into contracts – another important constituent principle established by Eucken – ensures the compliance of voluntarily closed transactions and businesses; commutative justice, thus, enables the just exchange of economic competencies (Eucken 1952/2004: pp. 315). Hence, justice is in a certain way equivalent to the outcomes of market processes – provided that power structures (and especially the abuse of powers) are mainly absent, competition on the merits and in terms of better services to consumers (Leistungswettbewerb) is implemented within the ordoliberal framework and guaranteed by the state authorities, and market transactions are carried out voluntarily by equal transaction partners (i.e. buyers and sellers alike) in a state of private autonomy (cp. Böhm‟s concept of a private law society (1966/1980)). On those conditions – referring to the ordoliberal topic of power –, economic cooperation and the division of labor ensures a level of efficiency and productivity which enhances the public good. From an ordoliberal (and Hayekian) perspective, the market is regarded as a democratic judge; market processes incorporate in a certain way democratic elements (cp. Röpke Civitas Humana: p. 61; 1942: pp. 142; 1950: p. 205ff.; Böhm 1966/1980: pp. 119; Eucken 1950/1996: p. 340). Market results are seen as a democratic plebiscite (depending on consumer‟s free choices) – given that it is a voluntary and reciprocal organization of exchanges with mutual benefits and that it takes place within a socio-economic order of complete competition (vollständiger Wettbewerb) and a minimized level of power and dependencies. Provided that all these requirements are met, the Ordoliberals speak of a market democracy in which the consumer is the sovereign and the director of the economic process and in which the producers have to follow and answer the consumer‟s wishes and preferences (i.e. consumarchy; cp. Röpke 1942: pp. 142; 1950: pp. 205). That is the ideal portrayal of the competitive order envisioned by Ordoliberalism (in the long run). So far, similarities in the Hayekian and the ordoliberal concepts of justice exist. But, many Ordoliberals go one step further in the direction of social justice; they accredit the inevitability of distributive justice elements and as a result, they deviate from the Hayekian notion of commutative justice. The Ordoliberals are not unworldly, quixotic or utopian, and they are fully aware of the existing problems. Eucken and others are not oblivious to possible socio-ethical deficiencies which can occur within the ordoliberal competitive order (Eucken 1952/2004: pp. 291). Thus, it is likely that deficiencies with regard to income distribution generated by market mechanisms can occur (Eucken 1952/2004: p. 318). In this instance, a (market-conforming) 16 correction is needed in order to prevent social cases of hardship (Eucken 1952/2004: pp. 300 and p. 318). Accordingly, Eucken develops certain regulating principles, e.g. the correction of negative external effects 34 , social policy (Eucken 1953: p. 24) and income policy, particularly progressive taxation according to the ability to pay principle 35 as one instrument for state- controlled redistribution (Dietze/Eucken/Lampe 1941/1942: p. 89). The aim is to secure a minimum standard of living – in special cases minimum wages are appropriate (Eucken 1952/2004: pp. 303) and in general, exploitative wages are prohibited (Dietze/Eucken/Lampe 1943/2008: p. 110). Additionally, Eucken strives to implement a humane labor market which is characterized by a far-reaching balance between employees and employers and an elimination of re-feudalization. Notably, Eucken admits that labor is not a commodity (Eucken 1952/2004: p. 322)! Eucken writes: “What matters is that the labor market is organized in a humane fashion. In this regard, the following aspects have to be considered: the workman does not sell himself as a person, he does sell his services. In order to avoid exploitation, re-feudalization (Vermachtung) has to be counteracted. The relationship between [labor market] partners should be balanced. Provision for security and retributive justice is not left to the goodwill of individuals or left to chance, in a manner of speaking; rather it is subject to Ordnungspolitik” (Eucken 1952/2004: p. 322; translated by the author). Hecker (2008: pp. 213) observes correctly that Eucken integrates basic elements of social justice into his principles of economic policy and that a fundamental openness exists within Eucken‟s competitive order in terms of market-conform socio-political corrections and redistributions – naturally within certain boundaries (cp. Eucken 1952/2004: p. 301). 36 34 The correction of negative external effects can also be seen as a part of inter-generational justice due to the fact that it incorporates environmental protection and that it strives for a sustainable economic development. The correction of external effects is discussed in ecological terms and highly related to a lasting ecological policy (see Eucken 1952/2004: pp. 301; cp. also Müller-Armack, name-giver and one of the most prominent representatives of German social market economy, 1959/1976: p. 265; 1960/1981: pp. 71; Erhard/Müller- Armack 1972: pp. 298). 35 Cp. on the contrary Hayek 1960: pp. 306, where von Hayek pleads for a proportionate instead of a progressive taxation system. 36 Cp. also Nutzinger/Hecker 2008: pp. 557: „… prinzipiell anerkannten Aspekt der sozialen Gerechtigkeit […], dass ethische Aspekte jenseits der Tauschgerechtigkeit […] in Form einer angemessenen Rahmenordnung zwar berücksichtigt, aber gerade dadurch aus dem ökonomischen Prozess ausgelagert wurden. […] Gerechtigkeit jenseits der iustitia commutativa wird nicht mehr in den einzelnen Tauschakten, sondern in den Rahmenbedingungen des Wirtschaftens verortet“ (p. 557). „Bei der Diskussion der konstituierenden Prinzipien betont Eucken sehr dezidiert seine Überzeugung, dass ungleiche Vermögens- und Einkommensverteilungen […] im Wesentlichen als Folge unzureichenden Wettbewerbs anzusehen sind, sodass die von ihm angestrebte wirtschaftspolitische Sicherung der Wettbewerbsordnung einen Großteil der Problematik von selbst lösen würde. Eucken erkennt nicht nur die Sinnhaftigkeit eines über Tauschgerechtigkeit hinausgehenden Konzeptes von sozialer Gerechtigkeit an, er sieht den Hauptteil der Lösung des Gerechtigkeitsproblems gerade durch die geeignete ordnungspolitische Gestaltung des Wettbewerbsprozesses gesichert. […] Notwendigkeit, korrigierend in die Primärverteilung von Einkommen und Vermögen einzugreifen, wie sie sich zunächst „spontan“ auf den Faktor- und Gütermärkten bilden“ (p. 559). 17 Reallocation can only occur in respect of those goods which have been produced at an earlier stage; so, redistribution has to leave enough leeway for free initiatives and economic freedom including freedom of choice and decision (depending on motivation, commitment and performance incentives set by the institutional framework). Eucken is convinced that the ordoliberal competitive order fulfils this criterion of functionality; moreover, it satisfies the criterion of humanity as well: by increasing the overall wealth of a society via an adequate economic policy, the amount of distributional goods and services increases likewise. What is essential here, is to broaden and widen the general participation or sharing in the raising prosperity. Consequently, commutative justice necessarily requires its completion in the form of distributive justice – at least from an ordoliberal point of view. The need for help and un- indebted states of emergency calls for a conception of justice which goes beyond (procedural) justice of exchange and contracts based on the principle of equivalence (i.e. equal give and take, reciprocity, cooperation among equals). Equally important is the principle of subsidiarity gained from Catholic social ethics: According to that, the main emphasis lies on self- responsibility, self-help and communal or club-like help and solidarity (Eucken 1952/2004: pp. 312; Röpke 1942: p. 259; 1944/1949: p. 179; 1958/1961: pp. 249; Rüstow 1955: pp. 54). Inconsistent with the principle of subsidiarity are paternalism and a mentality of patronizing public welfare and care. In consequence, most of the Ordoliberals are highlighting individual responsibility and the importance of security systems while criticizing the evolution of the modern (interventionist) welfare state (cp. Eucken 1952/2004: p. 319; Röpke 1933/1965: p. 175; 1942: p. 261 and p. 271; 1944/1949: pp. 171 and pp. 255; 1958/1961: p. 75, pp. 226 and p. 244; Rüstow 1957: pp. 171 and pp. 178). The redistribution has to act up to certain principles: first of all many Ordoliberals draw a distinct boundary of reallocation; they set a limit of redistribution of income and wealth when economic investment activities are negatively affected; secondly, social policy as the bearer of redistribution should not be carried out in an isolated, selective and ad hoc manner (i.e. constitutional Ordnungspolitik instead of Punktualismus and Prozesspolitik), thirdly, it has to meet the standard of market- conformity (i.e. market-conforming redistribution), fourthly, re-distributive social and income policy should avoid centralistic and interventionist tendencies of the modern welfare state, and lastly, the execution of social policy should be free of discrimination and the granting of privileges. 37 37 Cp. Gröner 1992: pp. 86; Vanberg 2008a und b. 18 3.2. Wilhelm Röpke and Alexander Rüstow: Justice of the Starting Conditions Alexander Rüstow and Wilhelm Röpke are rounding up the ordoliberal theories(!) of justice. It is, therefore, appropriate to say a few words about so called „extended Ordoliberalism‟ or Sociological Neoliberalism: At the heart of Rüstow‟s and Röpke‟s understanding of justice lies so called justice of the starting conditions. In his book Gesellschaftskrisis der Gegenwart, Röpke speaks up for equal starting conditions and equal opportunities. 38 In this context, Röpke pleads for highly progressive inheritance taxes. Additionally, social justice consists of a broad distribution and diffusion of private property, a fight against the concentration of property in the hands of a few people or companies and a fight against diverging income disparities (Röpke 1942: pp. 356; 1958/1961: p. 348). However, Röpke does not rely solely on fair and just starting conditions; rather, he is also an advocate of justice of performance (Leistungsgerechtigkeit) (Röpke 1944/1949: p. 74): the principle of equivalence between performance and counter-performance (guaranteed by the ordoliberal competitive order) is essential as well as a meritocratic societal hierarchy (according to individual performances). In this regard, Röpke opposes (material) egalitarianism (Röpke 1950: pp. 65) and social leveling – although he does not totally condemn socio-political redistribution. He admits that these measurements underlie the principle of market-conformity. Likewise, the ordoliberal concept of justice is highly related – once again – with the topic of societal crisis of the present (Gesellschaftskrisis). In complete accordance with Eucken and Rüstow, Röpke demands (limited) redistribution which removes excessive inequalities. Extreme fortune and income disparities exceeding a certain line endanger social cohesion and societal stability (cp. Böhm 1937: p. 114). Social inequalities are one major source of social upheavals. Social conflicts hinge on the economic (in-)equality between social classes. Hence, in order to avoid self-destructive socio-economic imbalances, Röpke pleads for a distributive policy (Distributionspolitik) in the form of a (more) equal (yet not egalitarian) division of property and income distribution (cp. Röpke 1942: p. 299). The best way to reach this ordoliberal goal is to promote the accumulation of assets and capital of the lower and middle classes. As a result, that kind of social policy will lead to de-proletarianisation and de- massification and it will contribute to solve the social question and the societal crisis of the present. Ordoliberal social policy (a la Röpke and Rüstow) is not only distributive policy; moreover, it is a policy of de-proletarianisation (Politik der Entproletarisierung) as well. 38 For a slightly different position cp. Röpke 1958/1988: pp. 257, p. 260 and p. 269. 19 Here, the main focus lies on enabling emancipation and independency as the basic fundament for autonomous, self-reliant and mature citizens. This emancipatory social policy serves as a surrogate for a lesser compensatory social policy (see also Eucken‟s attempt to overcome the social question in: Eucken 1948 and 2001)! Like Röpke, Rüstow does also emphasize the significance of equal opportunities and justice of the starting conditions (i.e. assimilation 39 of the starting conditions). The societal status should solely depend on each individual‟s meritocratic achievements. While pointing at the weight of equal starting conditions, Rüstow explicitly negates the equality of outcomes (Rüstow 1955: p. 68). In his masterpiece, Ortsbestimmung der Gegenwart, he admits that equality at the beginning (i.e. equality of opportunity) is an indispensable qualification of justice; however, equality at the end (i.e. justice of results; end-state justice (cp. Nozick 2006: pp. 201)) is (relatively) negligible (Rüstow 1957: pp. 90). One major aspect of achieving equality of the starting conditions is via education policy 40 and especially via establishing a system of scholarships (Rüstow 1945/2001: p. 149; see also Röpke 1958/1988: p. 260). 41 A further public task is to radically constrain the law of inheritance. 42 Both facets aspire at combining justice of the starting conditions with the meritocratic performance principle (i.e. Leistungskonkurrenz). 43 Finally, Röpke as well as Rüstow are characterizing (social) justice as a meta-economic value and as a value which is highly correlated with freedom (e.g. Rüstow 1945/2001: p. 153). Thus, justice forms a unified whole, an irenic formula, with liberty! 4. Meta-analytical Comparison In total, the ordoliberal theories(!) of justice consist of several elements and try to incorporate (ex ante) commutative as well as (ex post) distributive justice – referring both to justice of rules as well as justice of outcomes and results. It is a rule based liberalism that emphasizes procedural justice, but at the same time it is by tendency a certain form of end-state and outcome-oriented liberalism as well. It combines commutative justice elements (i.e. Tausch-, 39 When referring to the term equality, Rüstow as well as Röpke are not propagating absolute equality or even egalitarianism; rather, what should be achieved is a relative or an assimilated state of equality. Otherwise, individual freedom would be violated by a considerable degree of coercion and dominion. 40 Cp. also Röpke 1963/1965; Müller-Armack 1960/1981: p. 69; 1972/1981: p. 158. 41 Cp. Rüstow 2001: pp. 83: Here, Rüstow requires equal access to education and its institutions. Exclusion on the basis of lacking financial support should be prohibited. The only pivotal criterion is the performance principle: talents and achievement potentials are the only decisive factors and not the personal social or financial background. 42 The aim is to overcome plutocracy mainly based on inherited inequalities with the help of an aristocratic and feudal inheritance law: every man should ideally be the architect of his own fortune (Rüstow 2001: pp. 83). 43 A just income distribution is one in which all the differences can be ascribed to different degrees of performances of the participants. 20 Vertrags- and Leistungsgerechtigkeit) with distributive justice elements (Verteilungsgerechtigkeit). Karsten (1985: p. 174) seems to be right when he states, that Eucken and other Ordoliberals take a middle position between Nozick‟s, von Hayek‟s and Rawls‟ theory of justice. 44 This eclectic and syncretistic mixture of elements stemming from dissimilar theoretical backgrounds departs from the pure Hayekian notion of commutative justice. One reason for this eclecticism might be that the Ordoliberals aspire to implement an order which is economically and ethically justifiable. Thus, they provide the reader with an integrated approach combining the advantages of competition with concerns for social justice and equity. We can detect the ideal market mechanism with its minimization of economic and political power and with its fairly materialized market price as the result of complete competition. The price mechanism functions as a calculating machine and it operates as an effective communication channel linking producers‟ and consumers‟ needs in a complex and anonymous economy. Furthermore, we can detect the performance-related payment of each factor of production and an income distribution corresponding to each individual market performance, yet not depending on market power structures. Such a competitive order with its unique incentive patterns will ideally enhance the rapid and speedy enforcement and spreading of innovations and it will lead to an increase in productivity promoting the overall wealth of a society (i.e. productivity of freedom). The lower and middle classes will especially benefit from this positive amendment of social welfare. Hence, competitive markets are essentially socially advantageous (cp. Böhm 1933/1964: p. 234: i.e. social productivity of self-interest). Most of the Ordoliberals are quite aware that the primary distribution of income via concurrence and market mechanisms is economically efficient and from a commutative- justice perspective just. But, they are also conscious that the results of fair and (commutatively) just market processes are not necessarily and per se just from a distributive- justice perspective. These outcomes are not compatible with the Kantian principle of universalization and generalization. The income distribution of the markets is at first sight socially blind. In consequence, a correction or redirecting of the income distribution is required – so many Ordoliberals claim. 45 It is necessary to complement the market-steered justice of performance (Leistungsgerechtigkeit) with other norms of justice. Especially the 44 Accordingly, Eucken‟s concept represents not only a synthesis of negative and positive freedom; additionally, it represents a synthesis of Rawls‟ and Nozick‟s theories of justice as well. As Rawls, Eucken‟s primary concern of justice is the basic socioeconomic structure, the question of how to assign fundamental rights, duties, social conditions and institutions, and the care for the worst-off in a society (cp. In der Stunde Null 1979). 45 See also Müller-Armack 1955: S. 85. 21 ordoliberal concern for the worst-off (cp. In der Stunde Null 1979) 46 and the obligatory overcoming of absolute material poverty demands an ex-post facto correction of income distribution. As a result, many Ordoliberals not only command progressive taxation, they also command a minimum configuration of vital resources and the safeguarding of the minimum subsistence level. In other words, the society has to provide basic protection and shelter for the „losers„ of the market game respectively for those individuals and their efforts which are not appreciated and rewarded by market processes (i.e. necessities of life or in German: Bedarfs- or Bedürfnisgerechtigkeit (justice of needs)). This includes security against severe physical privation and certainty of a given minimum of sustenance for all and preclude security of a given standard of life or of the relative position. In this context, Röpke establishes his concept of economic adjustment or adaption interventions (Anpassungsinterventionen; cp. Röpke 1944/1949: p. 376). The goal of such market- conforming interventions is to grant relief and solidary help to the victims of institutional change with its multi-variant processes of adjustment – without violating the market‟s ability to adapt. This kind of redistribution aims at enabling a dignified life. So, questions of redistribution and issues of social or distributive justice are indeed taken into consideration. Nevertheless, the main focus is on commutative justice and the limits of redistribution are highlighted by Eucken, Röpke and Rüstow – especially with regard to the modern welfare state. The best social policy from an ordoliberal perspective is the introduction or maintenance of the competitive order complemented by anti-poverty measures and basic (mandatory) social insurance systems. In addition, the distributive-justice concept of Ordoliberalism is quite rudimentary, elementary and in a certain way vague and indeterminate – a revision in the sense of modification and actualization is applicable and could incorporate for example societal rights of participation and inclusion (i.e. Mitwirkungs- or Teilhaberechte)). 47 The fundamental difference to the Hayekian concept of justice is the ordoliberal incorporation of distributive-justice elements – although they are not in the centre of the ordoliberal theories – and the slightly or at least not completely neglected outcome-oriented perspective on social policy. 48 This perspective, however, does not include equal, in the sense of egalitarian, results. 46 I.e. market economy with a conscience: in order to protect the economically weak and to safeguard freedom, unrestrained capitalism must give way to responsible and limited market-conforming economic interventions. 47 Cp. Ulrich 2008 and Goldschmidt 2011. 48 A further examination question could be to investigate whether this slightly outcome-oriented perspective of Ordoliberalism is compatible with Amartya Sen‟s approach (cp. Sen‟s recently published book on justice: Sen 2009). Sen‟s own approach to justice is a comparative and relational one. It is realization-focused respectively based on comparisons and comparative assessments and it focuses on the advancement or retreat of justice. The main question underlying his theory is: What (international) reforms do we need to make the world a bit less 22 Von Hayek, on the other side, completely rejects social and distributive justice as well as outcome-oriented state interventions. His focus is on formal rules and commutative justice as characteristics of a rule of law government instead of an arbitrary government (Hayek 1944/2007: p. 113; see also von Hayek‟s model constitution in: Hayek 1979). As stated above, von Hayek is convinced that a free economy can simply obtain commutative justice, while distributive justice is characteristic of organizations and socialism. It is the kind of justice prevalent in military and bureaucratic organizations and in a command-society, particularly in a totalitarian system of un-freedom, slavery and personal despotism (Hayek 1962/2008: pp. 642). Remarkable is the fact that the just mentioned Hayek-quotes are borrowed from von Hayek‟s inaugural lecture at the University of Freiburg in which von Hayek stresses the parallels in thinking of his own account and the ordoliberal one. Von Hayek is here – when he refers to social justice – either indirectly and implicitly criticizing Eucken et al. or he is simply not aware of the underlying subtle differences between Ordoliberalism and the position held by him. Here, it is necessary to add two (preliminary) comments for the avoidance of doubt and in order to evade misunderstandings: first of all, the essay clearly pursues a (descriptive-) comparative goal elaborating the points of fine differences inside neoliberalism. With this contrasting purpose in mind, it seems legitimate to emphasize and highlight the gaps and to stress the points of refined distinction as a rhetorical device. However, this does not mean, that the positions held by von Hayek, Eucken, Rüstow and Röpke are mutually incompatible. To state it clearly: A sharp contrast and a diametrical opposite cannot be proved. To the contrary, a wide range of parallels do exist – particularly between (the late) Franz Böhm, a further member of the Freiburg School, Eucken and von Hayek. 49 Moreover, both strands of neoliberalism can be regarded as predecessors (and representatives) of modern Constitutional Economics and they gave fresh impetus to New Institutional Economics (cp. the works of Vanberg 2008a; 2008b and Wohlgemuth 2008). Nevertheless, the differences do not have to unjust? According to Sen, actual assessments of freedoms and capabilities as well as assessments of outcomes and realizations are required as a major pre-condition to make a choice between alternative policies. Sen sets his own approach apart from a contractual or arrangement focus approach to justice which aims at identifying perfectly just institutional arrangements for a society and which is based on transcendental justice. 49 Especially Böhm‟s concept of private law society closely resembles von Hayek‟s Great Society. See for more information on the personal relationship (not friendship!) between von Hayek and Eucken their correspondence (Hayek 1939-1950). Remarkable is the stepwise personal alienation between von Hayek and so called Economic Humanism à la Rüstow and Röpke: While von Hayek, Rüstow and Röpke were friends at an earlier age; they gradually became opponents and even enemies in their second half of life. Rüstow even called von Hayek a libertarian paleo-liberal (see Hennecke 2008: p. 149; Karabelas 2010: pp. 88; compare also the debates of the Mont Pelerin Society in Plickert 2008). As a result, the variations between von Hayek and Rüstow/Röpke are more severe compared to those between von Hayek and Böhm/Eucken. In this case, I favor the thesis of gradualism ranging from von Hayek‟s evolutionary liberalism via Ordoliberalism of the Freiburg School (Böhm and Eucken) to Sociological Neoliberalism/Economic Humanism (Röpke and Rüstow). 23 be obliterated; the distinctions, even those which are delicate and gradual, have to be recognized. 50 Secondly, there is no unified ordoliberal theory of justice or a homogenous and unitary understanding of justice; rather, (more or less) individual answers to the social question and to social justice exist, no doubt. Moreover, a complete accordance between Eucken, Rüstow and Röpke is far from certain. 51 But, and that is essential, both Eucken and Rüstow/Röpke are integrating re-distributive elements into their theories of justice. Here, a common ground and a similarity between Eucken, Rüstow and Röpke can be reached. At the same time, this is also the point of departure and demarcation comparing Eucken, Rüstow and Röpke on the one hand and von Hayek on the other hand: The best social policy, according to the members of the Freiburg School of Law and Economics, is the introduction and preservation of the competitive order. They are favoring the integration of the question of social justice into their concept of Ordnungspolitik. The social question is regarded as a result of insufficient competition, as a result of a state of re-feudalization (Vermachtung) and as a failure of the state to implement and maintain the institutional framework. Social question, social justice and the question of private power in a free society are, therefore, interlinked (so far, the approaches of Ordoliberalism and von Hayek are more or less equivalent). In addition, Ordoliberalism (in the broader sense) incorporates a (slightly) outcome-oriented perspective on social policy. Eucken‟s regulatory principle of income policy, for example, aims at correcting the results of market processes (i.e. income (re-) distribution via progressive taxation): Urgent needs and a minimum subsistence level have to be guaranteed via a state- run and re-distributive social policy. Moreover, Eucken does not condemn worker participation, trade unions and state-run welfare institutions complementary to private insurance companies. In special circumstances, even minimum wages are allowed (cp. Eucken‟s regulative principles incorporating e.g. the internalization of external effects, a redistributive income policy (i.e. progressive taxation) in order to correct socially unacceptable market outcomes, and the setting of minimum wages). Von Hayek, on the contrary, rejects any outcome-oriented state interventions and he logically rejects (the ordoliberal) synthesis of commutative and distributive justice. Von Hayek is highly critical of redistribution via progressive taxation and he abhors minimum wages: according to him, a minimum subsistence level has to be guaranteed (i.e. securing one‟s 50 Just as von Hayek is not a member of the Chicago School, he is not a member of Ordoliberalism and the Freiburg School of Law and Economics. 51 Differences between Rüstow, Röpke and Eucken refer to the topic of equality of opportunity/justice of the starting conditions and education policy. Both are completely lacking in Eucken‟s writings. All have in common the integration of re-distributive elements (i.e. distributive justice elements are already laid down by Eucken, however, these elements play a more prominent role within the theories of justice developed by Rüstow and Röpke), the topic of Gesellschaftskrisis and the aim of overcoming the problem of socio-economic power. 24 livelihood), however without intervening in market processes and without (ex post) correcting market results. He clearly differentiates between securing one‟s livelihood, a minimum subsistence level and protection against severe deprivation (i.e. minimum income) on the one hand and minimum wages on the other hand (cp. e.g. Hayek 1960 pp. 285; 1960/1988: pp. 406; 1976: p. 87 52 ). Insofar, von Hayek‟s argument is by far more consistent and stringent – compared with the ordoliberal ones. His theory of justice rests clearly on commutative justice while excluding all forms of distributive justice. The ordoliberal mixture of distributive and commutative justice-elements, to the contrary, (slightly) opens the gateway for special interest groups and it provides the state with discretionary leeway for economic policy interventions. It is now possible to sum up the parallels and differences in the theories of justice: both Ordoliberalism and von Hayek are emphasizing Ordnungs- instead of Prozesspolitik, both are relying on competition on the merits, the principle of market conformity and the (Kantian) private law society with its freedom of privileges and discrimination; more importantly, both are warning against the dangers of the welfare state (cp. e.g. Röpke 1958/1988; Hayek 1960/1988) and the dangers of socialism and totalitarianism. Moreover, both prefer the principle of subsidiarity, self-responsibility, self-help and communal or club-like help and solidarity instead of (forced) national assistance and state-run welfare organizations. All these commonalities are due to the fact that both Ordoliberalism and von Hayek are – at least in their early years – fighting all kinds of totalitarian ideologies. They are both pursuing the same goals and fighting on similar frontline positions. However, the applied means and the adopted specific route towards the (shared) goals are slightly different. Among the differences are: 1. Von Hayek’s problem of knowledge vs. the ordoliberal problem of power: Von Hayek regards markets as processes of coordination of decentralized and incomplete knowledge responsible for the allocation of factors of productivity. He supposes a division of labor as well as a division of knowledge. In this regard, market mechanisms are superior and gain advantage in increasing the overall wealth of a society and thus, reaching the goal of (commutative) justice. The ordoliberal approach is dissimilar: they are approaching justice via the problem of power and the topic of Gesellschaftskrisis: According to Ordoliberalism social justice, the social question and the reduction and prevention of the misuse of socio-economic powers are highly interlinked: Re-feudalization (among others) is one major source of injustice; 2. Von Hayek’s ‘impossibility theorem’ (it is simply not feasible to reach a unique, consensual and generalizable definition of positive (distributive) justice) vs. the ordoliberal 52 In the third volume of Law, Legislation and Liberty (Hayek 1979: pp. 93 and pp. 141), von Hayek opposes any politically determined wage structure and state-run income policies (i.e. minimum wages, etc.); instead, he favors the “assurance of a certain flat minimum income” (i.e. minimum subsistence level; p. 143). 25 multi-faceted concept of justice respectively commutative vs. distributive justice: Von Hayek clearly opposes the redistribution by progressive taxation and favors proportional taxation (unlike Ordoliberalism 53 ); he clearly opposes the ex post correction of market results via fiscal policy and all other measures related to distributive justice (unlike some representatives of Ordoliberalism); he clearly opposes (interventionist) social policy and state-run social security systems 54 (unlike some Ordoliberals), which will lead to a totalitarian economic dictatorship (according to von Hayek, all distributive justice measures are compulsory tools of egalitarian and socialist redistribution); he neglects the moment of Gesellschaftskrisis which is at the heart of Ordoliberalism in the broader sense (especially Rüstow and Röpke aim at the de-proletarianization, de-massification and the disempowerment of interest groups; therefore, they aim at an emancipatory social policy with a broad distribution of assets and an adequate education policy); he opposes the principle of equality of opportunities and the ordoliberal concept of the starting conditions (unlike Rüstow and Röpke; cp. Hennecke 2008: pp. 113 and pp. 121). 55 In short: distributive justice-elements can only be found in the ordoliberal version(s) of neoliberalism. 5. Concluding Remarks As stated in the introduction, variations and disparities between von Hayek and Ordoliberalism can be found on diverse levels: i.e. philosophy of science, setting dissimilar priorities, social philosophy, genesis of norms, and notion of freedom. In the current paper I have analyzed another potential dimension of differences – which is by the way interlinked with the opposed conceptions of genesis of norms: the ordoliberal and the Hayekian theories of justice with its differing setting of priorities: i.e. von Hayek‟s commutative justice concept vs. the ordoliberal mixture of commutative and distributive justice. The Ordoliberals believe that true social benefits of their competitive order derive inherently from the long-term stability of competitive markets by suppressing arbitrary and disorderly political and economic power, by eliminating monopolistic and oligopolistic strumctures and by the ceaseless functioning of individual freedom and competition (cp. Rittershausen 2007: p. 9). Contrary to von Hayek who is convinced that the weasel-word „social‟ itself is an 53 Cp. Eucken 1952/2004: pp. 300: „Sie [die Progression der Einkommenssteuer] soll den Verteilungsprozeß im Rahmen der Wettbewerbsordnung korrigieren“ (here: p. 301). 54 What is required – according to von Hayek – is an abolition of the government monopoly of services and the privatization and decentralization of social insurances, education, etc (Hayek 1979: p. 147). 55 The concept of equality of opportunity/equal starting conditions is an “illusory ideal”, as stated by von Hayek (Hayek 1976: p. 10 and pp. 84), since all still remaining handicaps and disadvantages must be removed by a powerful and coercive government; equality of opportunity is (only) important in cases of appointments to public offices (i.e. talent and skill oriented) and schooling of minors (p. 84). 26 excuse to disguise a collectivist and, hence, an anti-social agenda, many Ordoliberals take the view that market-conforming interventions as well as re-distributive „interventions‟ are indispensable in order to overcome the (new) social question. 56 As a consequence, they implement regulating principles which are designed – on the one hand – to stabilize and sustain the competitive order and – on the other hand – to correct certain shortcomings of the market (in modern terms: market failures). To these belong the stringent control of monopoly power, the public regulation of severe supply side anomalies such as mass unemployment, the redistribution of income through a progressive tax system and last but not least the corrections of socio-economic externalities due to large discrepancies between short-term profits and personal self-interests and the long-term common or collective good. Especially the essays originated from the interdisciplinary cooperation within the Freiburg resistance circles against National-socialism contain certain re-distributive measurements and social policy advices (cp. In der Stunde Null 1979; Dietze/Eucken/Lampe 1941/1942 and 1943/2008): The aim of a Christian based society is a functioning and humane socio- economic order. Such an order strives for fostering self-responsibility and proactive individual initiative. It rests on small and medium sized companies and it precludes the ruling of interest and para-governmental rent seeking groups. However, equally important is the prevention of unjust distributions of income, assets and property. It is the explicit goal of social policy to provide for humane employment with equally just payment, to avoid exploitation, mass poverty and unemployment. Eucken, for example, endorses supply anomaly interventions by subsidizing minimum wages and by guaranteeing a minimum subsistence level (Eucken 1952/2004: pp. 185, pp. 303 and pp. 321). Especially important are progressive taxes. Moreover, he – in complete accordance with Constantin von Dietze and Adolf Lampe, both members of the Freiburg (resistance) Circles – pleads for equal market positions with regard to the exercise of power and influence between employers and employees (cp. Eucken 1946/1999: p. 21 and 1952/2004: p. 322). Only when the status of a balance of power has been reached on labor markets and when employers and employees are able to negotiate their working conditions at an equal level and with true freedom of contract, is it possible to minimize exploitation, reduce asymmetric, patriarchal and paternalistic employer-employee relationships, decrease dependencies and the misuse of power and realize social peace within a society. Therefore, it is one key element of social policy to support labor 56 For Eucken and others, social policies are only acceptable in so far as they do not disrupt or infringe upon the primacy of stable prices in a perfectly competitive marketplace and only in so far as they are not influenced by biased interest groups and “limited in scope to truly social-fabric-ripping vagaries” (Rittershausen 2007: pp. 12). Not acceptable from an ordoliberal point of view is a Müller-Armack-like anti-cyclical policy where the state engages in vaguely defined business cycle management in order to cool off credit booms. 27 unions until they are equally powerful as the federation of employers or to downgrade the level of power of employers until they have just as little power as labor unions. Both parties of the labor market should be equally powerful – provided that they do not dominate economic processes and that they do not exert pressure on political decision making processes. It is a remarkable fact that Ordoliberalism connects its theories of justice with its elaborations on liberty and power (cp. also Forst 2007: pp. 270). With all these dissimilarities in mind it is possible to draw a distinction within neoliberalism (i.e. in total, neoliberalism is no monolithic block): Von Hayek‟s evolutionary liberalism (and co-generic types of neoliberalism like Buchanan‟s and Vanberg‟s constitutional economics) have to be separated from German Ordoliberalism in general and the Freiburg School of Economics and Sociological Neoliberalism in particular. In addition, they challenge the stimulating thesis that von Hayek can be described as an Ordoliberal (cp. Kolev 2010). Thus, the work of Ordoliberalism should not be viewed through Hayekian lenses only; it deserves an economic-ethical perspective as well! References: BECKER, Helmut Paul (1965): Die soziale Frage im Neoliberalismus. Analyse und Kritik; Heidelberg, F.H. Kerle Verlag. BÖHM, Franz (1933/1964): Wettbewerb und Monopolkampf. Eine Untersuchung zur Frage des wirtschaftlichen Kampfrechts und zur Frage der rechtlichen Struktur der geltenden Wirtschaftsordnung; Berlin, Carl Heymanns Verlag. - (1937): Die Ordnung der Wirtschaft als geschichtliche Aufgabe und rechtsschöpferische Leistung; Stuttgart, Verlag von W. Kohlhammer. - (1966/1980): Privatrechtsgesellschaft und Marktwirtschaft in: Böhm: Freiheit und Ordnung in der Marktwirtschaft; Baden-Baden, Nomos; pp. 105-168. BÖNKER, Frank/WAGENER, Hans-Jürgen (2001): Hayek and Eucken on the State and Market Economy in: Labrousse, Agnès/Weisz, Jean-Daniel (eds.): Institutional Economics in France and Germany. German Ordoliberalism versus the French Regulation School; Berlin, Springer; pp. 183-199. DIETZE, Constantin von/EUCKEN, Walter/LAMPE, Adolf (probably 1941/1942): Volkswirtschaftsfibel/ Nationalökonomische Fibel in: Nachlass Popitz (BA NL 1262/87), Koblenz, Bundesarchiv. - (1943/2008): Wirtschafts- und Sozialordnung in: Goldschmidt, Nils/Wohlgemuth, Michael (eds.): Grundtexte zur Freiburger Tradition der Ordnungsökonomik; Tübingen, Mohr Siebeck; pp. 99-115. ERHARD, Ludwig/MÜLLER-ARMACK, Alfred (1972): Soziale Marktwirtschaft. Ordnung der Zukunft. Manifest ‟72; Frankfurt, Ullstein Verlag. EUCKEN, Walter (1946/1999): Über die Gesamtrichtung der Wirtschaftspolitik in: Eucken: Ordnungspolitik; Münster, LIT Verlag; pp. 1-24. - (1948): Die soziale Frage in: Ludwig Erhard Stiftung (ed.): Grundtexte zur Sozialen Marktwirtschaft. Zeugnisse aus zweihundert Jahren ordnungspolitischer Diskussion; Stuttgart, Fischer; pp. 329-339. 28 - (1950/1996): Deutschland vor und nach der Währungsreform in: Schneider, Jürgen/ Harbrecht, Wolfgang (eds.): Wirtschaftsordnung und Wirtschaftspolitik in Deutschland (1933-1993); Stuttgart, Franz Steiner Verlag; pp. 327-360. - (1952/2004): Grundsätze der Wirtschaftspolitik; Tübingen, Mohr Siebeck. - (1953): Wettbewerb, Monopol und Unternehmer; Bad Nauheim, Vita Verlag. - (2001): Wirtschaftsmacht und Wirtschaftsordnung – Londoner Vorträge zur Wirtschaftspolitik und zwei Beiträge zur Antimonopolpolitik; Münster, LIT Verlag. FORST, Rainer (2007): Das Recht auf Rechtfertigung. Elemente einer konstruktivistischen Theorie der Gerechtigkeit; Frankfurt, Suhrkamp. GOLDSCHMIDT, Nils (2011): Vom Glück und von Gärten. Moderne Ordnungsökonomik und die normativen Grundlagen der Gesellschaft in: Caspari, Volker/Schefold, Bertram (eds.): Wohin steuert die ökonomische Wissenschaft? Ein Methodenstreit in der Volkswirtschaftslehre; Frankfurt, Campus Verlag. GRÖNER, Helmut (1992): Walter Eucken – Wegbereiter der Ordnungspolitik in: Walter Eucken Institut (ed.): Ordnung in Freiheit; Tübingen, Mohr Siebeck; pp., 79-88. HAYEK, Friedrich August von (1939-1950): Nachlass F.A. von Hayek, NL Hayek, F.A. von Hayek Papers; Stanford, Hoover Institution Archives. - (1944/2007): The Road to Serfdom; Chicago, University of Chicago Press. - (1960): The Constitution of Liberty; London, Routledge & Kegan Paul. - (1960/1988): Freiheit im Wohlfahrtsstaat in: Hohmann et al. (eds.): Grundtexte zur Sozialen Marktwirtschaft Band 2: Das Soziale in der Sozialen Marktwirtschaft; Stuttgart, Gustav Fischer Verlag; pp. 387-409. - (1962/2008): Wirtschaft, Wissenschaft und Politik in: Goldschmidt, Nils/Wohlgemuth, Michael (eds.): Grundtexte zur Freiburger Tradition der Ordnungsökonomik; Tübingen, Mohr Siebeck; pp. 637-651. - (1966/1996): Eine sich selbst bildende Ordnung für die Gesellschaft in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 262-266. - (1968/2002): Competition as a Discovery Procedure in: Quarterly Journal of Austrian Economics 5/3; pp. 9-23. - (1970/1996): Die Irrtümer des Konstruktivismus und die Grundlagen legitimer Kritik gesellschaftlicher Gebilde in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 16-36. - (1973): Law, Legislation and Liberty. A new statement of the liberal principles of justice and political economy Vol. 1: Rules and Order; London, Routledge & Kegan Paul. - (1973/1996): Die Erhaltung des liberalen Gedankengutes in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 249-261. - (1974/1996): Die Anmaßung von Wissen (Pretence of Knowledge) in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 3- 15. - (1976): Law, Legislation and Liberty Volume 2. The Mirage of Social Justice; London, Routledge & Kegan Paul. - (1976/1996a): Der Atavismus »sozialer Gerechtigkeit« in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 181-192. - (1976/1996b): Die Illusion der sozialen Gerechtigkeit in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 193-203. - (1978/1996a): Die drei Quellen der menschlichen Werte in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 37-75. - (1978/1996b): Liberalismus in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 216-248. 29 - (1979): Law, Legislation and Liberty Vol. 3: The Political Order of a Free People; London, Routledge & Kegan Paul. - (1979/1996): Wissenschaft und Sozialismus in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 267-277. - (1983/1996): Evolution und spontane Ordnung in: Kerber, Wolfgang (ed.): Die Anmaßung von Wissen. Neue Freiburger Studien; Tübingen, Mohr Siebeck; pp. 102-113. HECKER, Christian (2008): Lohn- und Preisgerechtigkeit. Historische Rückblicke und aktuelle Perspektiven unter besonderer Berücksichtigung der christlichen Soziallehren; Marburg, Metropolis-Verlag. HENNECKE, Hans Jörg (2000): Friedrich August von Hayek. Die Tradition der Freiheit; Düsseldorf, Verlag Wirtschaft und Finanzen. - (2008): Friedrich August von Hayek zur Einführung; Hamburg, Junius. IN DER STUNDE NULL (1979): Die Denkschrift des Freiburger „Bonhoeffer-Kreises“: Politische Gemeinschaftsordnung. Ein Versuch zur Selbstbestimmung des christlichen Gewissens in den politischen Nöten unserer Zeit; Tübingen, Mohr Siebeck. KARABELAS, Iris (2010): Freiheit statt Sozialismus. Rezeption und Bedeutung Friedrich August von Hayeks in der Bundesrepublik; Frankfurt, Suhrkamp. KARSTEN, Siegfried (1985): Eucken‟s „Social Market Economy‟ and Its Test in Post-War West Germany: The Economist as Social Philosopher Developed Ideas That Paralleled Progressive Thoughts in America in: American Journal of Economics and Sociology, Vol. 44, No. 2; pp. 169-183. KLUMP, Rainer/WÖRSDÖRFER, Manuel (2010): An Ordoliberal Interpretation of Adam Smith in: ORDO 61; pp. 29-51. KOLEV, Stefan (2008): Macht und Wissen als Determinanten: Zur Rolle des Staates in der Wirtschaftspolitik bei Walter Eucken und Friedrich August von Hayek; retrieved October 1, 2010 from: www.hwwi.de/uploads/tx_wilpubdb/HWWI_Research_Paper_5-4.pdf. - (2010): Hayek as an Ordo-Liberal; HWWI Research Paper 5-11; retrieved October 1, 2010 from: www.hwwi.org/uploads/tx_wilpubdb/HWWI_Research_Paper_5-11.pdf. KÜLP, Bernhard (2000): Walter Eucken und die soziale Frage in: Külp, Bernhard/Vanberg, Viktor (eds.): Freiheit und wettbewerbliche Ordnung. Gedenkband zur Erinnerung an Walter Eucken; Freiburg, Haufe Verlag; pp. 155-176. MÜLLER-ARMACK, Alfred (1955): Wirtschaftspolitik in der sozialen Marktwirtschaft in: Boarman, Patrick (ed.): Der Christ und die soziale Marktwirtschaft; Stuttgart, W. Kohlhammer Verlag; pp. 75-99. - (1959/1976): Die Soziale Marktwirtschaft nach einem Jahrzehnt ihrer Erprobung in: Müller- Armack: Wirtschaftsordnung und Wirtschaftspolitik. Studien und Konzepte zur Sozialen Marktwirtschaft und zur Europäischen Integration; Bern, Haupt; pp. 251-265. - (1960/1981): Die zweite Phase der Sozialen Marktwirtschaft: Ihre Ergänzung durch das Leitbild einer neuen Gesellschaftspolitik in: Ludwig Erhard Stiftung (ed.): Grundtexte zur Sozialen Marktwirtschaft. Zeugnisse aus zweihundert Jahren ordnungspolitischer Diskussion; Stuttgart, Fischer; pp. 63-78. - (1972/1981): Die Soziale Marktwirtschaft und ihre Widersacher in: Müller-Armack: Genealogie der Sozialen Marktwirtschaft; Bern, Haupt; pp. 147-160. NOZICK, Robert (2006): Anarchie. Staat. Utopia; München, Olzog Verlag. NUTZINGER, Hans G./HECKER, Christian (2008): Gerechtigkeit in der Ökonomie – ein unlösbarer Widerspruch? in: Leviathan 4/2008; pp. 543-575. PIES, Ingo (2001): Eucken und von Hayek im Vergleich. Zur Aktualisierung der ordnungspolitischen Konzeption; Mohr Siebeck, Tübingen. PLICKERT, Philipp (2008): Wandlungen des Neoliberalismus. Eine Studie zu Entwicklung und Ausstrahlung der „Mont Pèlerin Society“; Lucius & Lucius, Stuttgart. 30 POPPER, Karl R. (1957/2003): Die offene Gesellschaft und ihre Feinde. Band I: Der Zauber Platons; Tübingen, Mohr Siebeck. - (1958/2003): Die offene Gesellschaft und ihre Feinde. Band II: Falsche Propheten: Hegel, Marx und die Folgen; Tübingen, Mohr Siebeck. QUAAS, Friedrun (2000): Soziale Marktwirtschaft. Wirklichkeit und Verfremdung eines Konzepts; Bern, Verlag Paul Haupt. RENNER, Andreas (1999/2000): Die zwei „Neoliberalismen“ in: Fragen der Freiheit 256; retrieved July 11, 2010 from www.tristan-abromeit.de/pdf/MdB%20Gruene%20Anhang%20I.pdf. RITTERSHAUSEN, Johannes R.B. (2007): The Postwar West German Economic Transition: From Ordoliberalism to Keynesianism; Köln, IWP Discussion Paper No. 2007/1, Institut für Wirtschaftspolitik. RÖPKE, Wilhelm (1933/1965): Epochenwende? in: Röpke: Fronten der Freiheit. Wirtschaft – Internationale Ordnung – Politik. Eine Auslese aus dem Gesamtwerk; Stuttgart, Seewald Verlag; pp. 167-178. - (1942): Die Gesellschaftskrisis der Gegenwart; Erlenbach, Rentsch. - (1944/1949): Civitas Humana. Grundfragen der Gesellschafts- und Wirtschaftsreform; Erlenbach, Rentsch. - (1950): Mass und Mitte; Erlenbach, Rentsch. - (1958/1961): Jenseits von Angebot und Nachfrage; Erlenbach, Rentsch. - (1958/1988): Gefahren des Wohlfahrtsstaates in: Hohmann, Karl et al. (eds.): Grundtexte zur Sozialen Marktwirtschaft. Das Soziale in der Sozialen Marktwirtschaft; Stuttgart, Gustav Fischer Verlag; pp. 253-270 - (1963/1965): Die Stellung der Wissenschaft in der Industriegesellschaft in: Röpke: Fronten der Freiheit. Wirtschaft – Internationale Ordnung – Politik. Eine Auslese aus dem Gesamtwerk; Stuttgart, Seewald Verlag; pp. 214-227. RÜSTOW, Alexander (1945/2001): Das Versagen des Wirtschaftsliberalismus; Marburg, Metropolis. - (1955): Wirtschaftsethische Probleme der sozialen Marktwirtschaft in: Boarman, Patrick (ed.): Der Christ und die soziale Marktwirtschaft; Stuttgart, Kohlhammer Verlag; pp. 53-74. - (1957): Ortsbestimmung der Gegenwart. Eine universalgeschichtliche Kulturkritik. Dritter Band. Herrschaft oder Freiheit?; Erlenbach, Rentsch. - (2001): Die Religion der Marktwirtschaft; Münster, LIT Verlag. SALLY, Razeen (1996): Ordoliberalism and the Social Market: Classical Political Economy from Germany in: New Political Economy Vol. 1, Issue 2; pp. 1-18. SEN, Amartya (2009): The Idea of Justice; Cambridge, Harvard University Press. STREIT, Manfred E./WOHLGEMUTH, Michael (2000a): Walter Eucken und Friedrich A. von Hayek: Initiatoren der Ordnungsökonomik in: Külp, Bernhard/Vanberg, Viktor (eds.): Freiheit und wettbewerbliche Ordnung. Gedenkband zur Erinnerung an Walter Eucken; Freiburg, Haufe Verlag; pp. 461-498. - (2000b): The Market Economy and the State. Hayekian and Ordoliberal Conceptions in: Koslowski, Peter (ed.): The Theory of Capitalism in the German Economic Tradition. Historism, Ordo-Liberalism, Critical Theory, Solidarism; Heidelberg, Springer; pp. 224-271. ULRICH, Peter (2008): Integrative Economic Ethics. Foundations of a Civilized Market Economy; Cambridge, Cambridge University Press. VANBERG, Viktor (2006): Marktwirtschaft und Gerechtigkeit. Zu F.A. Hayeks Kritik am Konzept der „sozialen Gerechtigkeit“ in: Held, Martin/Kubon-Gilke, Gisela/Sturn, Richard (eds.): Soziale Sicherung in Marktgesellschaften; Marburg, Metropolis Verlag; pp. 39-69. - (2008a): Der konsensorientierte Ansatz der konstitutionellen Ökonomik in: Vanberg, Viktor: Wettbewerb und Regelordnung; Tübingen, Mohr Siebeck; pp. 23-48. - (2008b): Die normativen Grundlagen von Ordnungspolitik in: Vanberg, Viktor: Wettbewerb 31 und Regelordnung; Tübingen, Mohr Siebeck; pp. 49-67. VOGT, Markus (1999/2009): Soziale Interaktion und Gerechtigkeit in: Handbuch der Wirtschaftsethik Bd. 1.1.: Verhältnisbestimmung von Wirtschaft und Ethik. Konstitutive Bauelemente moderner Wirtschaftsethik. Grundfragen ethischer Rationalität in einer globalen Welt; Berlin, Berlin University Press; pp. 284-309. WATRIN, Christian (2000): Staatsaufgaben: Die Sicht Walter Euckens und Friedrich A. von Hayeks in: Külp, Bernhard/Vanberg, Viktor (eds.): Freiheit und wettbewerbliche Ordnung. Gedenkband zur Erinnerung an Walter Eucken; Freiburg, Haufe Verlag; pp. 323-343. WÖRSDÖRFER, Manuel (2010): Ordoliberalism and the Evolution of Norms; Normative Orders Working Paper 07/2010; available at: http://publikationen.ub.uni- frankfurt.de/volltexte/2010/8701/pdf/Ordoliberalism_and_the_Evolution_of_Norms.pdf. - (2011): Die normativen und wirtschaftsethischen Grundlagen des Ordoliberalismus; Frankfurt. - (forthcoming): Individual and Regulatory Ethics: An Economic-Ethical and Theoretical- Historical Analysis of Ordoliberalism. WOHLGEMUTH, Michael (2008): A European Social Model of State-Market Relations. The Ethics of Competition from a “Neo-liberal” Perspective in: zfwu 9/1; pp. 69-87. 
work_d7ed3f2iwnan3im27qe7qsb6xy	----	Social Capital and Social Justice Procedia Economics and Finance 8 ( 2014 ) 246 – 253 2212-5671 © 2014 The Authors. Published by Elsevier B.V. Open access under CC BY-NC-ND license. Selection and peer-review under responsibility of the Organizing Committee of ESPERA 2013 doi: 10.1016/S2212-5671(14)00087-2 ScienceDirect 1st International Conference 'Economic Scientific Research - Theoretical, Empirical and Practical Approaches', ESPERA 2013 Social capital and social justice Emil Dingaa* aCentre for Financial and Monetary Research „Victor Slăvescu”, Calea 13 Septembrie 13, 050711,Bucharest, Romania Abstract This paperaims toanalyse the issueof implementing the justicein a societywithdemocratic rules,taking into account the social capital structure. To thisend, a typology of the social capital isproposedand examined, getting to a qualitativetypologyof the social in sixspecieswhichare thengrouped into threepairsbased onthe relationship betweenindividuationand socialization phenomena. In thiscontext,social justiceprinciples and criteriaare evaluatedand correlated withthe social capitaltypology, extractingconclusions abouthowa practicable social justicemay be boththe source andthe destination othe social capitaldynamics. Finally, the paperproposes somenotabledistinctionsbetweensocial justice andsocial rightness, basedalsoon theproposedtypology of the social capital. © 2014 The Authors. Published by Elsevier B.V. Selection and peer-review under responsibility of the Organizing Committee of ESPERA 2013. Keywords:social capital, social justice, social rightness, social distribution 1. Structure of the social capital If we imagine our planet (which is limited from any point of view) as a circle, then a model of its sustainability may be seen as an equilateral triangle inscribed in that circle (figure 1): * Corresponding author. Tel.: +40722588863; E-mail address: emildinga2004@yahoo.com © 2014 The Authors. Published by Elsevier B.V. Open access under CC BY-NC-ND license. Selection and peer-review under responsibility of the Organizing Committee of ESPERA 2013 Available online at www.sciencedirect.com http://crossmark.crossref.org/dialog/?doi=10.1016/S2212-5671(14)00087-2&domain=pdf http://creativecommons.org/licenses/by-nc-nd/3.0/ http://creativecommons.org/licenses/by-nc-nd/3.0/ 247 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 1.1. Types of capital and the societal paradigm Fig. 1.Paradigm of planet Earth sustainability It is obvious that making any side of the triangle shorter by extending the others is a deviation from sustainability. The paradigm of sustainability is an artefact; it has not been invented by nature. Although this statement may be strongly polemical, in our opinion, nature invented only the survival, which is not the same thing as the sustainability. The difference between survival and sustainability consists in the teleological character of sustainability (therefore, about sustainability we may speak only accepting the presence of the cultural beings). Actually, the history of the human society is the very history of the domination of one form or another of capital. Each category of dominant capital imposed its own logic principle of movement, constructed its own actional paradigm and generated its own social formation (table1): Table 1.General picture of the association of the type of capital with the societal paradigm T y p e o f c a p i t a l (F u n d a m e n t a l o r c r u c i a l r e s o u r c e) Natural Cultural (Artefactual) Physical Non-physical Substanti al (tangible) Financial (intangibl e) Individual Socia l Biologica l Intellectual Mora l The logic principle Methodological collectivism Methodological individualism Methodological holism The actional paradigm Stationarity Optimality Sustainability The societal establishment Naturalism Capitalism ? Therefore, the necessity (under the sanction of extinction), for the human society, to access the paradigm of sustainability by replacing the paradigm of optimality seems to have no other alternative 1.2. Want is the social capital? In general, we will name capital any entity (either substantial or informational) which brings an advantage of any kind to the holder of that entity. It is of no importance if that advantage is current or future. According to Figure 1 above, there may be six distinct (fundamental) type of capital: a) natural capital (for instance, a river); b) substantial capital (for instance, a house); c) financial capital (for instance, amonetaryincome); d) biologic capital (for instance, the health state of an individual); e) intellectual capital (for instance, the educational level of a person); f) social capital (for instance, human rights institutionalization). These types of capital are correlated causally with the three basic forms of the individual welfare (figure 2): 248 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 Fig. 2. Relations of causality between the types of capital and the components of the individual welfare The social capital originates (primary roots) in the social networks of any kind. These networks can be formal (such as the set of formal institutions), or informal (such as the cultural traditions or the moral principles). In order to formulate a definition of the social capital we need to identify and systematize the predicates of sufficiency of the concept of social capital. We think that these predicates are the following: (PS1): internal pro-cyclicity: the social capital generates a permanent positive feed-back regarding its utilization (stating this predicate is equivalent with stating a “law” of the increasing outputs); (PS2): horizontal non-rivalry: the social capital can be used by any contemporary without reducing, by this utilization, the amount of social capital available for the other contemporaries; (PS3): vertical non-rivalry: the social capital can be used by any non-contemporary without reducing, by this utilization, the amount of social capital available for the other non-contemporaries; (PS4): formal institutionality: the social capital is generated and used only in a formal (encoded)manner. Once an existing entity (having thus objective or subjective ontological status) verifies, simultaneously the four predicates of sufficiency, that entity becomes a species of social capital. Once an existing entity becomes social capital, it generates a new predicate of necessity†: (PN1): axiological assignation: the social capital generates necessarily a list of values which form its reason. Figure 3 shows the general design by which the predicates of sufficiency and the new predicate of necessity of thesocial capital are correlated with the types of capital mentioned earlier: PS1 PS2 PS3 PS4 PN1 Natural capital(CN) Physiccapital(CF) Biologiccapital(CB) Intellectualcapital(CI) Moral capital(CM) Social capital(CS) †The predicates of sufficiency are, logically, predicates of necessity too, but not any predicate of necessity is a predicate of sufficiency too. 249 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 Fig. 3.Association of the predicates of sufficiency and necessity with the generic types of capital 1.3. What types of social capital exist? In order to identify the typology of the social capital we need, of course, a criterion (or a set of criteria) of classification. In our opinion, we must use two categories of criteria: (a) (IS): criterion of socialisation: by socialization we understand the process of insertion of the individual within the society (i.e. establishment of the society through the individual people); (b) (SI): criterion of individualization: by individualization we understand the process of autonomizationof the individual person in relation with the society (i.e. establishment of the individual person by the society). Each of the two categories generates a distinct classification of the social capital: (a) On the basis of the criterion of socialization (IS)we have: Communication (C): extent and quality to which the people can communicate, live and act with and in relation with other people; this type ofsocial capital is „accountable” particularly for the process of communitization (establishment of social communities such as: family, team, club, nation, region, social networks etc.); Participation (P): extent and quality to which the people have the possibility to take part in the public decision-making; is type of social capital is „accountable” particularly for the establishment of the political structure of the society; Mutualization (M): extent and quality to which common purposes and common means can be established by inter-individual harmonization (either cooperation, or competition); is type of social capital is „accountable” for the contractual association of the people (within the nations or states, too). (b) On the basis of the criterion of individualization (SI) we have: Liberty (L): extent to which the people can use their own free-will; Trust (I): extent to whicheach individual person is free to delegate own rights or interests toward another individual person (towards the state or a supra-state, included); Symmetry (S): extent to whicheach individual person has the same access as any other individual person to the societal, public or private, anthropic or natural (education, justice, neighbourhood, opportunity). The types of social capital socialization relate to the nature of the process, while the types of social capital individualization relate to the nature of the phenomenon. This observation might lead us to an interesting conclusion: the individualization of the social capital is the result of the social capital socialization. Therefore, we need to accept a form of apriorism of thesocial capital socialization in relation with its individualization. In other words, we may consider the individualization of the social capital as a specification (in the Kantian meaning of the concept of specification) of its socialization. We consider that the proposals of the dedicated literature regarding the typology of the social capital can be included in the six classes mentioned above. We will now form three pairs of social capital classes, the first component of the pair belonging to the category of socialization, while the second component belonging to the category ofindividualization: Communication-liberty (C-L): we will name this pair as the „axiological binomial” of the social capital; Participation-trust (P-I): we will name this pair as thepolitic binomial” of the social capital; Mutualization-symmetry (M-S): we will name this pair as thepraxeological binomial” of the social capital. The reason for the formation of these three pairs resides in the relation of causality between the components of each pair, so that the arrow of causality originates in the socialization component of the pair and ends in the individualization component of the particular pair (figure4). 250 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 Fig. 4.Pairingof sufficiency and of necessity predicates of the social capital to the generic types of capital 2. Concept of social justice 2.1. Social justice – mission of the society (state) Society – understood as objectivities of the social contract between the state and the citizens – has four fundamental missions to accomplish: Ensure the efficient utilization of the resources of any kind, of the human resources mainly(we notice here, therefore, the labour force employment); this implies an asymptomatic movement towards the Pareto- optimal welfare – as it is known, because of the existence of public goods, the Pareto-optimum can be achieved (or approximated) only by the state (government); Achieve social justice: the final distribution of the social results of any kind (positiveor negative) on the basis of fairness; fairness means: a) achieve the primary distribution according to the merit; b) achieve redistribution according to the non-imputable non-merit; Achieve the individual welfare: institutional implementation of a grid of principles which produce and reproduce the social capital (of six types, as mentioned earlier); this mission is transversal (synchronic), functioning intra-generationally; Achieve the sustainability of the societal dynamics: all societal inputs must be „recovered” bysocietaloutputs, sooner or later, in the necessary amount, quality, structure and dynamics; this is a longitudinal (diachronic) mission, functioning inter-generationally. Therefore, all these four missions of the society are linked, directly or indirectly, either to the capital as such, or to the social capital, explicitly. We will now show the causal relation between the second mission of the society (achievement of social justice) and the social capital. 2.2. Merit and non-merit in the human society Merit( ) is anintegrator concept used for the primary distribution of the results of the society’s activity between the individual people (primary components of the society). We were saying in the beginning that the merit is assigned exclusively to the people, not to the groups or classes of individuals, irrespective of the criterion of aggregation. By merit we will understand an intrinsic distributional signaller of a right for the three distinct entities: objects (for instance, actual properties), symbols (for instance, currency of financial bonds) and prerogatives (for instance, roles). The category of merit is indivisible, although its level or form of manifestation can be different. Following are some considerations necessary for the subsequent reasoning. 251 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 (1) Merit doesn’t exist as such, meaning that it cannot be claimed/assumed or proved/rejected in itself; it exists only if and to the extent to which it manifests, objectivities within an action recorded by the social environment;by action we understand any exteriorization (perceived by the social environment) of an intentionality, irrespective of the form taken by this exteriorization; (2) Only the objectivation of the merit associates to itpositive or negative significances for the society at the moment when it objectivates (we can notice here a historic character of the merit): if the significance of objectivizing the meritby action is positive (appreciated positively by the society), then the merit signals a level of compulsory primary distribution from the society (social reward), while if that significance is negative, it signals an inverse, compulsory distribution, from the individual towards the society (social sanction). Non-merit ( )must not be confused with the negative evaluation of merit objectivation. Non-meritis, simply the lack of merit.Because, as we have shown previously, merit doesn’t exist by itself, only by its objectivation, non- merit also doesn’t exist in itself, only by the absence of its objectivation. Non-merit is of two types: (1) Imputablenon-merit ( ): is the case when the individual refuses to prove the existence of the merit (this proof comes, of course, exclusively by the objectivation of the potential merit through an action with social significance); as claimed by Kant, failing to make use of a merit (for instance, a talent) isimmoralthe reason why the objectivation of the merit doesn’t occur, is irrelevant; (2) Non-imputablenon-merit ( ): is the case when the individual is in a situation of incapacity to objectivates his/her merit (for instance, the people with various disabilities); we presume that society has adequate criteria and procedures by which it distinguishes non-equivocally between the refusal to objectivate a merit and faking this refusal by mimicking the incapacity to objectivates this merit. 2.3. Distributional principles and criteria The distributional principle is a principle which establishes the distribution of the societal result. In our opinion, the distribution of the societal result has two components: a) a distributive component (D1); b) a redistributive component (D2). Consequently, we need two distributional principles: a) a primary distributional principle (PD1); b) a secondary distributional principle (PD2). The primary distributional principle refers to the direct distribution (the distributive component), while the secondary distributional principlerefers to the indirect distribution (the redistributive component). Both the direct distribution and the indirect distribution also require distributional criteria. We consider that the distributional criterion for the direct distribution must be the merit, while the distributional criterion for the indirect distribution must be the non-imputable non-merit. We have here two difficult problems which we will approach briefly: it is about the two distributions which we may name, a) distribution according to the transferred merit; b) distribution according to the presumed merit. Both for the transferred merit, and for the presumed merit, we give up the issue of merit objectivation. The transferred merit works as distributional criterion, such as merit succession. Merit successions can be legal (stipulated as norms, encoded or informal – such as the real inheritances), or can be voluntary (decided by the individual person). Merit successions can be inter-generational (for instance, a legacy) or intra-generational (for instance, a donation, gift, sponsorship). Merit successions refer to all three categories of merit: regarding objects, regarding symbols and regarding roles. The presumed merit works as a merit generation-type distributional criterion. This is the case of assigning positions, roles, etc. to people who didn’t yet prove, by objectivation, their merit, but who are expected to objectivate their merit by the distribution according to the presumed merit‡. Thenon-imputablenon-merit refers to demonstrable impossibilities to objectivate a merit. These impossibilities can be of two categories: a) endogenous impossibilities (such as a physic or mental disability); b) exogenous impossibilities (such as an obstacle which is out of the control of the particular person – force majeure, for instance). Of course, nobody can claim having non-imputable non-merit if a legal norm prevents the action which would have ‡For instance, we must include here the concept of efficient wage from the economic theory of the labour market. 252 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 objectivate the presumptive merit. 2.4. Conditions for the accomplishment of social justice The accomplishment of social justice implies the accomplishment of the distributional objective. As shown above, the distribution of the societal result is done in two steps: 1) direct distribution (primary distribution); 2) indirect distribution (secondary distribution, or redistribution). Question is, does the accomplishment of the social justice imply the accomplishment of the distributional result (primary distribution according to the merit, or the secondary distribution according to the non-imputable non-merit), or does it imply just ensuring the procedural conditions for the accomplishment of the distributional result? We consider that the accomplishment of the social justice implies just the provision of the means to accomplish the distributional result. This means that the normative grid of the society regarding the distribution of the societal result must include all the conditions of sufficiency so that the distribution (according to the two forms) is guaranteed according to the mentioned distributional criteria. 3. Correlation between the procedural distribution and the social capital The objectivation of the procedural distribution, the achievement of the normative (encoded) conditions of sufficiency of the primary and secondary distribution according to the associated distributional criteria, will lead to the causal, structural and functional correlation between the social capital and the distribution of the societal outcome. The following theses can be supported in this matter: a. Social justiceis objectivated within the primary (direct) distribution, within the conditions in which the distribution of the societal output (NB: not just the economic societal output, but any output generated by the society) is done according to the merit. In this case, the type ofsocial capital „served” by primary distribution belongs to classIS, i.e.:mutualisation. b. Social rightnessis objectivatedwithin the secondary (indirect), within the conditions in which the distribution of the societal outputis done according to thenon-imputable non-merit. In this case, the type of social capital „served” by primary distribution belongs to class SI i.e.: symmetry. c. While the social justicedistributes the due and non-merit-based societal output, social rightness distributes the non-due and merit-based societal output. d. While social justice relies on the human condition, social rightness relies on the human nature. Figures 6 and 7 illustrate the four theses mentioned above. Fig. 5.Human nature – human condition in relation connection with the relation social progress-individual welfare 253 Emil Dinga / Procedia Economics and Finance 8 ( 2014 ) 246 – 253 Fig. 6.Distribution and redistribution of the societal output: social justice and social rightness References Clark, T., Woodley, R., De Halas, D., 1962.Gas-Graphite Systems, in “Nuclear Graphite”.In: Nightingale, R. (Ed.). Academic Press, New York, pp. 387. Deal, B., Grove, A., 1965.General Relationship for the Thermal Oxidation of Silicon. Journal of Applied Physics 36, 37–70. Deep-Burn Project: Annual Report for 2009, Idaho National Laboratory, Sept. 2009. Fachinger, J., den Exter, M., Grambow, B., Holgerson, S., Landesmann, C., Titov, M., Podruhzina, T., 2004. Behavior of spent HTR fuel elements in aquatic phases of repository host rock formations, 2nd International Topical Meeting on High Temperature Reactor Technology. Beijing, China, paper #B08. Fachinger, J., 2006. Behavior of HTR Fuel Elements in Aquatic Phases of Repository Host Rock Formations.Nuclear Engineering & Design 236, 54. 
work_dfyjxwawpbdtdfizshqqhczedi	----	Meeting for Justice I_1III sus monkeys, according to Mary Lou Ballweg, cofounder and president of the Endometriosis Association. The original study, which was begun in 1977 and involved 24 rhesus monkeys randomly assigned to a diet containing 5 parts per trillion (ppt) dioxin (low dose), 25 ppt (high dose), or no dioxin over a 4-year period, examined only reproductive and neonatal impact. It was years after the dioxin diet had been discontinued and autopsies implicat- ed severe endometriosis in the deaths of several of the monkeys, a finding that reached Ballweg by word-of-mouth, that the Endometriosis Association stepped in, just in time to prevent the dispersal of the monkey colony to the highest bidders. The association brought in two of its expert advisors, one of whom coauthored the Fundamental and Applied Toxicology study, to perform a daylong laparoscopy examina- tion on the survivors. The scopes were blinded, and the results were astounding," Ballweg says. Meanwhile, the colony is dwindling as more animals die, and the survivors will reach menopause within three years. The Endometriosis Association is mobilizing to fund as many studies as possible in the remaining time, with a particular interest in exploring dioxin-related immunological alterations. "Endometriosis may be more an immunologic disorder with reproduc- tive consequences, rather than the other way around," Ballweg suspects. "The sad fact," says Rier, who is con- ducting immunologic studies, "is that the best time to have done these studies would have been from the time of exposure over the years the disease was developing, so that changes in immune function and dis- ease progression could have been observed side by side. At this point, we can't tell cause from effect-if the immune changes arise from the dioxin exposure or from the disease." Linda Birnbaum, director of the envi- ronmental toxicology division of the EPA's health effects research lab, concurs: "We do know that dioxin alters the immune system of rhesus monkeys, but 10 years postexposure it's hard to sort out the composite effects. It's highly likely though." Birnbaum adds, "These chemi- cals are associated with an increased risk of endometriosis. This is a very relevant study." Rier's preliminary studies reveal dis- ease-related differences in markers of immune dysfunction such as immune cell cytokine production, increases in tumor necrosis factor, and decreases in inter- leukin-6. Rier is also examining natural killer cell activity and antiphospholipid antibodiles in ongoing studiles. In the randomized rhesus study, as well as in the general rhesus population at the primate center, the spontaneous endo- metriosis rate was about 30%, considerably higher than the apparent rate among women. Even so, the findings in these ani- mals were "minimal," Rier observes, com- pared to the severe and symptomatic mani- festations in 79% of the dioxin-exposed monkeys. Moreover, Rier and others note, the incidence of mild, asymptomatic endometriosis among women is not known. The results of this study have prompt- ed a joint effort by NIEHS, CDC, and Duke University investigators to compare the blood levels of dioxin and related com- pounds in 30 women with and without endometriosis. A larger, more definitive study will be undertaken if higher levels of dioxin are found among endometriosis patients than controls, says George Lucier, chief of the NIEHS Laboratory of Biochemical Risk Analysis. The results of the preliminary study-the first to explore in humans the hitherto unsuspected link between dioxin and endometriosis-are expected by the end of the year. Even if rhesus monkeys are actually more suscepti- ble to endometriosis than are women, "the dose-response relationship and the severity of disease give the rhesus dioxin findings more power," Lucier comments, noting that dioxin's actions both as a potent envi- ronmental hormone and an immunotoxin provide two plausible mechanisms for a role in endometriosis induction. Meeting for Justice An upcoming symposium in the nation's capital will bring together community leaders, government health agency repre- sentatives, and members of academia with the goal of developing research strategies to eliminate environmental health injustice in the United States. Environmental justice indudes issues such as race, socioeconomic class, occupation, differential exposure, and proximity of housing to environmen- tal hazards, all of which may directly affect a person's health. NIEHS, EPA, the Agency for Toxic Substances and Diseases Registry, the National Institute of Occupational Safety and Health, the Department of Energy, and the NIH Office of Minority Research are co-sponsoring a symposium entitled "Health Research and Needs to Ensure Environmental Justice," to be held 10-12 February 1994. Participants will meet for three days in an interactive environment to: * identify at-risk populations and research gaps; * acquire information to develop a com- prehensive, long-term intra- and inter- agency research agenda (with projected funding) that incorporates community needs and priorities of at-risk popula- tions. * design a prevention and intervention model as part of a larger research, edu- cation, training, and community out- reach (multilingual, multicultural, mul- tiracial, and multiethnic) effort; * facilitate public input and participation, especially from underrepresented com- munities, to address problems, design research plans, collect data, and imple- ment plans; * develop mechanisms to diversify the pool of health science professionals to include experts from affected and underrepresented communities trained in environmental health fields as scien- tific advisors and peer review panelists on research studies and health research grants; and * make recommendations on interagency cooperation related to research needs of at-risk populations and target resources that build on strengths of existing agency mandates and directives. "This symposium was planned with the participation of community leaders and concerned citizens working as full part- ners," notes Dan VanderMeer, director of the NIEHS Office of Planning and Evaluation. "We see this as an exciting opportunity to expand and accelerate fed- eral efforts to improve environmental health in urban and rural areas through the involvement of underrepresented persons in development of strategies that recognize community needs." GnomPrjc 572 Environmental Health Perspectives 
work_dddatdlocnca3prn4cha6i635u	----	OUTLAWING AMNESTY: THE RETURN OF CRIMINAL JUSTICE IN TRANSITIONAL JUSTICE SCHEMES* CRIMINALIZAR A ANISTIA: A JUSTIÇA CRIMINAL NO CONTEXTO DA JUSTIÇA DE TRANSIÇÃO* Abstract: This Article responds to an appa- rent gap in the scholarly literature which fails to merge the fields of human rights law and international criminal law—a step that would resolve the current debate as to whether any amnesty in transitional justi- ce settings is lawful. More specifically, even though both fields are a subset of transitio- nal justice in general, the discipline of in- ternational criminal law still supports the theory of “qualified amnesties” in transi- tional justice schemes, while international human rights law now stands for the pro- position that no amnesty is lawful in tho- se settings. This Article brings attention to this new development through a discussion of the Barrios Altos case. This Article seeks to reveal how an international human rights decision can dramatically impact state prac- tice, thus also contributing to a pending question in international human rights law as to whether such jurisprudence is effecti- ve in increasing human rights protections. The Article concludes by looking at the im- plications of this new legal development in regard to amnesties in order to encourage future research regarding the role of crimi- nal justice in transitional justice schemes. Keywords: Amnesty in the Americas. Tran- sitional Justice. Human Rights Violations. Resumo: Este artigo responde a uma apa- rente lacuna na literatura acadêmica que falha em mesclar os campos do direito cri- minal internacional e dos direitos humanos — um passo que iria resolver o atual debate sobre se a anistia em contextos de justiça de transição é legítima. Mais especificamente, apesar de ambos os campos serem um sub- conjunto da justiça de transição em geral, a disciplina de direito penal internacional ain- da apoia a teoria das “anistias qualificadas” em sistemas de justiça de transição, enquan- to o direito internacional dos direitos hu- manos agora está para a proposição de que a anistia não é legítima nesses contextos. Este artigo chama a atenção para este novo desenvolvimento através de uma discussão do caso Barrios Altos. Este artigo procura re- velar como uma decisão internacional dos direitos humanos pode afetar drasticamen- te a prática do Estado, contribuindo assim para uma questão pendente no direito in- ternacional de direitos humanos que é saber se tal jurisprudência é eficaz para ampliar a proteção dos direitos humanos. O artigo conclui olhando para esta nova evolução ju- rídica a respeito das anistias para incentivar futuras pesquisas sobre o papel da justiça penal em esquemas de justiça de transição. Palavras-chave: Anistia nas Américas. Justiça de Transição. Violações dos Direitos Humanos Lisa J. Laplante ** *This article first appeared in the Virginia Journal of International Law ** Lisa J. Laplante,University of Connecticut School of Law, lisalaplante@hotmail.com 59EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Lisa J. Laplante 60 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 1 Introduction Until recently, immunity measures like amnesties were considered an accep- table part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights. The politically sensitive need to broker peace between oppositional forces often outweighed the moral imperative of seeking to punish those responsible for perpetrating human rights atrocities. The “third wave of democratization” in Latin America during the 1980s con- tributed greatly to this trend, with the use of immunity measures in negotiated transitions becoming an important bargaining chip in brokering political impasse in South and Central America.1 Certainly, the Latin American experience has played a significant role in shaping the debates and direction of transitional justice in several respects. The consistent use of amnesties in the region contributed to the growing acceptance of amnesties in the 1980s.2 By the end of the Cold War, the transitional justice discourse in Latin America centered largely around the truth v. justice debate, which put at issue whether a political transition could or should include crimi- nal trials. Political leaders of these countries often justified the use of amnesty in the name of peace, an argument that went largely unquestioned and resulted in a sort of a political balancing test that more often tipped in favor of assuring political stability over criminal justice in post-conflict or post-authoritarian set- tings. Nevertheless, to assure accountability, these countries often formed truth commissions to conduct investigations and to provide a mechanism for truth telling for the benefit of victim-survivors and society at large. As a result, Latin America helped popularize the truth commission model, reliance upon which grew as a way to compensate for compromised justice schemes. While at first truth commissions were believed to be a “second-best” option,3 they soon beca- me complementary and necessary measures for confronting past repressive and violent regimes through restorative justice. Later, Latin America once again helped reshape the terms of the truth v. justice debate in the 1990s. With national justice largely foreclosed in tran- sitional Latin American countries in the 1980s, many victim-survivors and their advocates resorted to international human rights enforcement bodies like the Inter-American Court of Human Rights (IACtHR) for a remedy. As 1Ruti G. Teitel, Transitional Justice 53 (2000). 2 See Naomi Roht-Arriaza, Truth Commissions and Amnesties in Latin America: The Second Genera- tion, 92 Am. Soc’y Int’l L. Proc. 313, 313–15 (1998) (offering a historical view of the Latin American experience with amnesties and its impact on the general acceptance of these immunity measures). 3 See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2546 n.32 (1991) (“Whatever salutary effects it can produce, [a truth commission] is no substitute for . . . prosecutions. Indeed, to the extent that such an undertaking purports to replace criminal punishment . . . it diminishes the authority of the legal process . . . .”). But cf. Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence 88 (1998) (arguing that truth commissions are not “a second best alternative to prosecutions,” but instead can be a form better suited to meet the many goals pertinent to transitional politics). Outlawing amnesty: the return of criminal justice ... 61EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 a result, international human rights law jurisprudence, frequently discussed by learned jurists, strengthened recognition of individual rights while slowly chipping away at absolute state sovereignty. Although a state’s prerogative to use amnesties dates to antiquity,4 the human rights movement suddenly plan- ted serious questions about such immunity measures legitimacy through three main arguments: first, international law creates a state duty to investigate, prosecute, and punish those responsible for serious violations of human rights; second, international law also provides victims a fundamental right to justice (the “victims rights argument”); and third, post-conflict policy recognizes that criminal justice is good for democracy and the rule of law.5 As a consequence, the truth v. justice question began to tip in favor of criminal trials because the rights of victims now factored into a balancing equation that once only consi- dered the preferences of political leaders and elites. Roughly at the same time as the development of human rights law, a paral- lel development in international criminal law also laid inroads to undermine the validity of amnesties. Specifically, the end of the Cold War permitted renewed at- tention to the use of international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945. Jurispruden- ce emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states. These streams of international human rights law and international cri- minal law together helped cause a paradigmatic shift. Today, amnesties are no longer assumed to be unconditionally lawful within an international legal fra- mework.6 Instead, many scholars now acknowledge that to be legitimate, am- nesties must conform to legal norms. This has created a standard of “qualified amnesties” with customary and treaty law prohibiting bars to prosecution for war crimes, enumerated treaty crimes, and crimes against humanity. Yet, this discourse suggests that it is still possible for nations to resort to amnesties for other serious human rights violations. With regard to this last point, this Article responds to an apparent gap in the scholarly literature which fails to merge the fields of human rights law and international criminal law—a step that would resolve the current debate as to whether any amnesty in transitional justice settings is lawful. More specifically, even though both fields are a subset of transitional justice in general, the discipli- ne of international criminal law still supports the theory of “qualified amnesties” in transitional justice schemes, while international human rights law now stands for the proposition that no amnesty is lawful in those settings. This Article brings 4 Teitel, supra note 1, at 58 (writing that amnesties were granted to nearly all participants in the Athenian Civil War in 403 B.C.). For a general discussion of amnesties, see Gwen K. Young, All the Truth and as Much Justice as Possible, 9 U.C. Davis J. Int’l L. & Pol’y 209 (2003) (presenting a definitional overview of amnesties). 5 Ronald C. Slye, The Legitimacy of Amnesties Under International Law and General Principles of Anglo- American Law: Is a Legitimate Amnesty Possible?, 43 Va. J. Int’l L. 173, 182 (2002). 6 See discussion infra Part II. Lisa J. Laplante 62 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 attention to this new development through a discussion of the Barrios Altos case, a seminal decision issued by the IACtHR in 2001.7 Barrios Altos arose out of a dispute concerning one amnesty law, promulga- ted in 1995 by former Peruvian President Alberto Fujimori, which extended im- munity to all state agents responsible for serious human rights violations during Peru’s internal armed conflict between 1980 and 2000. When Fujimori unexpec- tedly fled the country in 2000, the transitional government sought clarification from the IACtHR on the amnesty laws to determine whether its transitional jus- tice experience could include criminal trials. The result was a prompt decision in which the IACtHR declared immunity measures such as amnesty laws to be contrary to state obligations under international human rights law, a holding that can be interpreted to outlaw all amnesties for acts that constitute human rights crimes. Yet recent scholarship, most notably from the international criminal law field, has ignored this decision or otherwise interpreted it overly narrowly.8 This Article responds by offering a more in-depth understanding of the Barrios Altos de- cision in order to inform the ongoing academic debates on the evolving doctrine on amnesties in transitional justice schemes. In addition, this Article seeks to reveal how an international human rights decision can dramatically impact state practice, thus also contributing to a pending question in international human rights law as to whether such jurisprudence is effective in increasing human rights protections. As a result of the IACtHR ru- ling, the Peruvian Truth and Reconciliation Commission (TRC) fully embraced the principle of criminal justice, seeking to conduct its own investigations to support state efforts to initiate criminal prosecutions. Barrios Altos dramatically altered the Peruvian transitional justice experience, eventually leading to prosecutions of police officers as well as military and civilian leaders, including Fujimori himself. As one of the more recent transitional justice experiences, the Peruvian experience offers an important look at how the concept of criminal justice may now figure as a central component of transitional justice schemes. Additionally, the Barrios Altos decision has also set a new precedent for the region, leading other Latin American countries to annul infamous amnesty laws of the past and finally initiate criminal trials. In light of these recent developments, this Article suggests that the truth v. justice dilem- ma may no longer exist. Instead, criminal justice must be done. To develop this conclusion, Part I of this Article first offers an historical overview of the truth v. justice debate in the field of transitional justice, with a focus on amnesties. In particular, Part I examines the Latin American experience and how it shaped the terms of this debate that eventually pushed criminal justice to the sidelines of transitional justice. Part II discusses how a changing interna- tional legal context helped to contest the use of immunity measures and create the current standard of “qualified amnesties” through international human rights law and international criminal law. Part III then turns to the specific story of Peru in order to offer an historical example of how amnesties create a culture of im- 7 Barrios Altos Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001). 8 See discussion infra Part V. Outlawing amnesty: the return of criminal justice ... 63EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 punity in national settings characterized by serious human rights violations. Part IV explains how Peru helped to reverse this trend of impunity as well as create a new standard in transitional justice schemes by resorting to the Inter-American System of Human Rights. Part V offers a systematic analysis of the Barrios Altos case in order to demonstrate how it may be interpreted to outlaw all amnesties, a conclusion also supported by subsequent state practice, which is explored in Part VI. The Article concludes by looking at the implications of this new legal develo- pment in regard to amnesties in order to encourage future research regarding the role of criminal justice in transitional justice schemes. 2 Truth v. Justice: the controversy of amnesty within transitional justice schemes This Part offers an historical look at the field of transitional justice. Despite its origins in principles of criminal justice, transitional justice evolved to exclude the use of criminal trials in the decades following World War II due to the wi- despread adoption of immunity measures, such as amnesties, in post-conflict and post-authoritarian countries, especially those in Latin America. This development gave rise to the truth v. justice debate, the evolution and terms of which will be discussed in order to illustrate how international law eventually moved towards bringing criminal justice back into transitional justice schemes. The criminal justice origins of transitional justice run deep. In fact, Ruti Teitel traces the genealogy of transitional justice back to the criminal trials at Nuremburg from 1945 to 1949,9 reminding us that the public imagination and understanding of transitional justice often conjures up images of criminal trials and the punishment of the culprits of displaced regimes.10 Certainly, the prosecu- tions of prominent members of Nazi Germany’s economic, political, and military leadership set a new standard: state actors could be held criminally liable for state crimes.11 Consequently, the Nuremburg trials set an international standard, inspi- ring the trials of perpetrators linked to World War II crimes in other countries.12 Above all else, the Nuremburg trials contributed to the birth of the transitional justice field, to which the general fields of international criminal law and interna- tional human rights law arguably belong.13 9 Ruti G. Teitel, Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 69, 70 (2003). 10 Teitel, supra note 1, at 27; see also Eric Blumenson, National Amnesties and International Justice, 2 Eyes on the ICC 1, 4 (2005) (concurring by writing that “the duty to bring the worst criminals to justice is a deep sentiment, or an article of faith”). 11 This precept now underscores the subject of international criminal law. See Teitel, supra note 1, at 74. See generally Robert E. Conot, Justice at Nuremberg (1983); Telford Taylor, The Anatomy of the Nuremburg Trials: A Personal Memoir (1992); Theodor Meron, Reflections on the Prosecu- tion of War Crimes by International Tribunals, 100 Am. J. Int’l L. 551 (2006) (providing a detailed history of the history of the Nuremburg trials). 12 Carlos Santiago Nino, Radical Evil on Trial 10 (1996) (naming Italy, Japan, Austria, France, Belgium, Hungary, Poland, and Czechoslovakia as places where additional trials occurred). 13 See Minow, supra note 3, at 27 (1998) (discussing the human rights movement arising out of Nuremburg); Teitel, supra note 1, at 32 (drawing the connection between international criminal law and transitional justice). Lisa J. Laplante 64 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Although precise definitions of the term “transitional justice” vary, the term ultimately rests on the search for justice in response to past episodes of widespre- ad human rights violations, most often those associated with armed conflict, au- thoritarian regimes, and apartheid.14 In these situations, trials can serve a clearly political purpose by laying the foundation for a transition that disavows the po- litical norms of predecessors and works “to construct a new legal order.”15 In this sense, trials can draw a “thick line” between the past and present to prevent new cycles of violence and to help assure the future of a new democracy.16 History, ho- wever, has shown time and again the difficulties countries face in trying to “close the books” on a past marred by widespread human rights violations in order to build a new legal and political order.17 Partly as a result of these problems, the initial enthusiasm for criminal justice generated by Nuremburg was short lived. Geopolitical changes that coincided with Nuremburg, namely the Cold War, made international trials less politically feasi- ble and thereby also contributed to the decline of international criminal justice.18 A Westphalian philosophy promoted a policy of noninterference that deferred to national sovereigns to decide the most appropriate means of achieving peace.19 Ac- cordingly, despite the millions of people victimized by brutal regimes since World War II, criminal prosecutions for such oppression in that period have been rare.20 2.1 Amnesty in the americas The third wave of democratization in Latin America during the 1980s con- tributed to the international tendency to accept that criminal justice could be compromised during delicate political transformations.21 With the exception of 14 See Louis Bickford, Transitional Justice, in Encyclopedia of Genocide and Crimes Against Hu- manity 1045, 1045–46 (Dinah L. Shelton ed., 2005); Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 Yale L.J. 2009, 2013 (1997) (noting the qualitative transition refers to a “bounded period, spanning two regimes”). 15 Teitel, supra note 1, at 30. 16 Juan E. Méndez, In Defense of Transitional Justice, in Transitional Justice and the Rule of Law in New Democracies 1, 7 (A. James McAdams ed., 1997). 17 See generally Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (2004). 18 For example, the regime changes in Southern Europe (Spain, Portugal, and Greece) follow- ing World War II took on a wholly local dimension and further undermined any assumption that criminal justice would be pursued. See Nino, supra note 12, at 16. See generally Anne-Marie Slaughter, Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform, 99 Am. J. Int’l L. 619, 629 (2005) (providing an overview of the concept of sovereignty). 19 See Ian Brownlie, Principles of Public International Law 75–76 (6th ed. 1998) (discussing the principle of sovereignty in international law). See generally Stéphane Beaulac, The Westphalian Legal Orthodoxy—Myth or Reality?, 2 J. Hist. Int’l L. 148 (2000) (discussing the history of the Westphalian doctrine). 20 See John Dugard, Retrospective Justice: International Law and the South African Model, in Transi- tional Justice and the Rule of Law in New Democracies, supra note 16, at 269, 276 (discussing a few of the rare cases of prosecution in Greece, Ethiopia, and Rwanda); Christopher C. Joyner, Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Ac- countability, 26 Denv. J. Int’l L. & Pol’y 591, 593–94 (1998) (discussing the rarity of criminal prosecutions since Nuremburg). 21 See Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 Hum. Rts. Q. 1, 1–6 (1990). Outlawing amnesty: the return of criminal justice ... 65EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Bolivia,22 retroactive justice for state crimes in Latin America became uncommon in this period due both to inaction and to the use of amnesties and pardons on a frequent basis.23 Thus, the Latin American experience began to suggest a model of “truth and justice as far as possible.”24 The experience of Argentina, in particular, reveals how practical concerns outweighed principled ones when criminal trials put at risk the complex and de- licate undertaking of political transition. In 1980, the Argentine military dicta- torship agreed to hold national elections conditioned on the passage of amnes- ty laws.25 The subsequently elected president, Raúl Alfonsín, however, created the National Commission on the Disappearance of Persons (CONADEP), which eventually led to criminal prosecutions of top military leaders.26 Alfonsín’s efforts soon backfired when the military showed its dissatisfaction through a series of uprisings. In response, the president passed a series of laws including the Ley de Punto Final (Law of Full Stop), which established an end date to the trials, as well as the Ley de Obediencia Debida (Law of Due Obedience), which provided immu- nity to lower ranked, subordinate officers if they acted within the scope of duty.27 Both laws were perceived as “undercover” amnesties that eventually frustrated national attempts to prosecute perpetrators of human rights crimes.28 Notwithstanding its struggles to assure criminal justice, Argentina establi- shed a new model of transitional justice that looked to other mechanisms for confronting the past and helped make truth commissions an acceptable way to 22 Bolivia stands apart from its neighbors as one of the earliest transitional experiences in Latin America in which criminal trials for human rights abuses were held in a political transition from a military dictatorship. On April 21, 1993, after a seven-year trial, its supreme court convicted former Bolivian military dictator García Meza (1980–81) to thirty years in prison. It also convicted some of his top ministers and paramilitary members. See René Antonio Mayorga, Democracy Dignified and an End to Impunity: Bolivia’s Military Dictatorship on Trial, in Transitional Justice and the Rule of Law in New Democracies, supra note 16, at 61, 61–63. This phase ended eighteen years of military rule (1964–82) due to what René Antonio Mayorga terms the “broad societal demand for justice” coupled with the military’s weak and discredited status. Id. at 71. 23 Nino, supra note 12, at 39. For a discussion of amnesties and basic definitional terms, see generally Roderick O’Brien, Amnesty and International Law, 74 Nordic J. Int’l L. 261 (2005). 24 Andrew Rigby, Justice and Reconciliation: After the Violence 63 (2001) (writing on the Latin American transitional justice experience). 25 The military, led by General Rafael Videla, overthrew civil socialist leader Juan Perón in 1973, but the military’s defeat in the war with Britain over the Malvinas Islands (Falklands) largely discredited them. See Carlos H. Acuña & Catalina Smulovitz, Guarding the Guardians in Argen- tina: Some Lessons About the Risks and Benefits of Empowering the Courts, in Transitional Justice and the Rule of Law in New Democracies, supra note 16, at 93, 101–02 (discussing the Ley de Pacifi- cación Nacional (Law of National Pacification) that granted immunity to armed and police forces for crimes committed in context of the military repression between May 25, 1973, and June 17, 1982); see also Jaime Malamud-Goti, Punishing Human Rights Abuses in Fledgling Democracies: The Case of Argentina, in Impunity and Human Rights in International Law and Practice 160 (Naomi Roht-Arriaza ed., 1995) (discussing Argentina’s amnesty laws). 26 See Acuña & Smulovitz, supra note 25, at 104. 27 Id. at 107–08. 28 See Luis Márquez Urtubey, Non-Applicability of Statutes of Limitation for Crimes Committed in Argentina: Barrios Altos, 11 Sw. J. L. & Trade Am. 109, 112 (2005) (providing a history of Ar- gentina’s amnesty laws). When Carlos S. Menem became president in July 1989, he pardoned top generals and 277 military personnel to attempt to resolve growing internal tensions. Acuña & Smulovitz, supra note 25, at 109–10. Lisa J. Laplante 66 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 fill the gap left by compromised criminal justice.29 By the end of the 1980s, truth commissions in Latin America became as commonplace as the amnesty laws that compelled their conception.30 By the time Chile underwent its transition to civil rule following the end of Augusto Pinochet’s military dictatorship in 1990, victims there also faced se- emingly absolute bars to criminal justice for crimes resulting from his repressive rule.31 At the time, Pinochet still maintained power despite having been voted out of office,32 and the courts remained reluctant to pursue investigations, especially since a sweeping amnesty law passed in 1978 covered all crimes committed by the armed forces from 1973 to 1978.33 Pinochet’s successor, President Patricio Aylwin, instead formed a truth commission to provide a “second-best option” and attempted “to serve a cause—the pursuit of retrospective justice—that is more effectively undertaken by the courts.”34 In doing so, Aylwin essentially adopted the position of “[f]ull disclosure of the truth, and justice to the extent possible.”35 Jorge Correa Sutil points to the continued power of the military to explain why Chile could only secure “a partial truth, a partial justice, and a partial healing of old wounds.”36 Unlike “transition through rupture” or total collapse, Chile’s ex- perience required negotiations with an existing military power base which ultima- tely resulted in pacification laws that limited the ability of politicians and courts to do justice.37 The residual power of former regimes generally helped to assure 29 Truth commissions vary from country to country but are usually official and temporary bodies created to investigate and publish historical accounts of past widespread violations of human rights. See generally Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001) (providing a comprehensive account of truth commissions in over thirty countries since 1970). 30 See Emily W. Schabacker, Reconciliation or Justice and Ashes: Amnesty Commissions and the Duty to Punish Human Rights Offenses, 12 N.Y. Int’l L. Rev. 1, 6–7 (1999). 31 In 1973, Pinochet overthrew socialist president Salvador Allende in a coup. See Naomi Roht- Arriaza & Lauren Gibson, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843, 846–49 (1998) (providing a historical account of events leading to Chile’s amnesty laws). 32 For example, even though growing discontent had led to a referendum that voted Pinochet out of office in 1988, the 1980 Constitution allowed him to continue to hold power as commander in chief of the army until 1990. Jorge Correa Sutil, “No Victorious Army Has Ever Been Prosecuted . . .”: The Unsettled Story of Transitional Justice in Chile, in Transitional Justice and the Rule of Law in New Democracies, supra note 16, at 123, 131–33. Pinochet also continued to hold a lifetime Senate seat after being voted out of office. 33 Rebecca Evans, Pinochet in London—Pinochet in Chile: International and Domestic Politics in Hu- man Rights Policy, 28 Hum. Rts. Q. 207, 220–21 (2006) (describing Chile’s amnesty laws); Sutil, supra note 32, at 127. 34 Sutil, supra note 32, at 134–35. 35 Id. at 133 (citing Aylwin’s inaugural speech on March 12, 1990). There were attempts to challenge the amnesty laws based on international law, which were eventually rejected by the Chilean Supreme Court. Id. at 135–36; see also Robert J. Quinn, Will the Rule of Law End? Chal- lenging Grants of Amnesty for the Human Rights Violations of a Prior Regime: Chile’s New Model, 62 Fordham L. Rev. 905, 919–20 (1994) (providing a historical account of the attempts to annul Chile’s amnesty law). 36 Sutil, supra note 32, at 149. The Commission on Truth and Reconciliation was instructed to clarify the truth in a “comprehensive” manner and recommend how to rehabilitate the victims. Working nine months in camera, the commission produced “The Rettig Report” (named after the commission’s chairman Raúl Rettig). See Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice: Investigatory Commissions in Latin America, 20 Law & Soc. Inquiry 79, 84–86 (1995) (de- scribing the work of the Commission on Truth and Reconciliation). 37 Mayorga, supra note 22, at 67. Outlawing amnesty: the return of criminal justice ... 67EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 impunity, especially where there were negotiations relating to their continued pre- sence in local power structures. In these situations, rather than seeking full-scale criminal prosecutions against former regime members, the question became “how much and to what extent justice was possible.” 38 By the 1990s, with amnesty laws established as common fare, the focus turned almost exclusively to truth commissions. Transitions in Central America often mirrored those in South America, resorting to immunity mechanisms to avoid criminal justice and relying almost exclusively on truth commissions to assure that the government provided some type of accountability for past wron- gs.39 The experiences in Latin America began to shape what would eventually be well-recognized as some of the fundamental dilemmas in the growing field of transitional justice and would help define the terms of the truth v. justice debate.40 2.2 Promoting truth commissions over criminal justice Pursuant to the Latin American experience, the “threshold dilemma” of transitional justice became choosing what kind of justice.41 The original strong link of justice to criminal trials spearheaded by Nuremburg was weakened by an “an increased pragmatism in and politicization of the law.”42 This process, howe- ver, was not without resistance. Even when state practice seemed to suggest the futility of any debate, a stronghold of justice advocates remained skeptical that 38 Sutil, supra note 32, at 133. 39 For example, five days after El Salvador’s truth commission published its report in 1993 urg- ing criminal accountability for the human rights violations caused during its twelve-year civil war, the government passed an amnesty law barring criminal investigations and trials. Santiago A. Canton, Amnesty Laws, in Victims Unsilenced: The Inter-American Human Rights System and Transitional Justice in Latin America 167, 169 (Mónica Ávila Paulette & Catherine A. Sunshine eds., Gretta K. Siebentritt trans., 2007). Similarly, the Guatemalan Historical Clari- fication Commission produced its final report, Guatemala: Memoria del Silencio, on February 25, 1999, but was prohibited from naming perpetrators or individualizing responsibility. Joanna R. Quinn & Mark Freeman, Lessons Learned: Practical Lessons Gleaned from Inside the Truth Commis- sions of Guatemala and South Africa, 25 Hum. Rts. Q. 1117, 1122 (2003). See generally Popkin & Roht-Arriaza, supra note 36, at 91–93 (describing the origins of Guatemala’s truth commission). 40 See Bronwyn Anne Leebaw, The Irreconcilable Goals of Transitional Justice, 30 Hum. Rts. Q. 95, 99 (2008). 41 Teitel, supra note 14, at 2014 (discussing the function of law in political transformation). See generally Luc Huyse, Justice After Transition: On the Choices Successor Elites Make in Dealing with the Past, 20 Law & Soc. Inquiry 51 (1995) (positing that transitional regimes face political choices in how to respond to the crimes of their predecessors). 42 Teitel, supra note 9, at 70 (discussing the phases of transitional justice development). Lisa J. Laplante 68 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 realpolitik could once and for all terminate the discussion.43 Their persuasion relied largely on legal arguments.44 Nevertheless, the notion of justice began to take on a broader meaning, pu- shed in large part by a challenge to the binary approach to the matter of accoun- tability that reduced the choice to trials or no trials. As Richard Goldstone, Justice of the Constitutional Court of South Africa, comments: “Certainly there is no one simple solution capable of addressing the complexities and subtleties inherent in a range of different factual situations. The peculiar history, politics, and social struc- ture of a society will always inform the appropriate approach to this question in any given context.”45 Part of this development favoring truth commissions without trials also related to the weakness of national courts in matters of criminal justice because “[c]ourts in newly constituted or reemerging civilian regimes must contend with a legacy of a lack of independence, ties to the old regime, mistrust, fear and corruption, or the inexperience of newly appointed personnel.”46 The perceived impossibility or impracticality of domestic trials led to their elimination altogether. 43 Some reasons for prosecuting include discouraging future offenses, minimizing “self-help” vengeance, promoting reconciliation, respecting the rule of law, and strengthening a new demo- cratic regime. See Alice H. Henkin, Conference Report, in Aspen Inst., State Crimes: Punishment or Pardon? 1, 3–4 (1989). As clearly stated by M. Cherif Bassiouni, “If peace is not intended to be a brief interlude between conflicts, then in order to avoid future conflict, it must encompass what justice is intended to accomplish: prevent, deter, punish, and rehabilitate.” M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, Law & Contemp. Probs., Autumn 1996, at 9, 13; see also Charles P. Trumbull IV, Giving Amnesties a Second Chance, 25 Berkeley J. Int’l L. 283, 305–17 (2007) (summarizing the arguments for and against criminal prosecutions). For a fuller discussion of the debates, see generally Miriam J. Aukerman, Extraor- dinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. J. 39 (2002) (discussing the justice theories attributed to transitional justice); Richard L. Siegel, Transitional Justice: A Decade of Debate and Experience, 20 Hum. Rts. Q. 433 (1998) (outlining the terms of the truth v. justice debate). 44 Chronologists mark the 1988 Aspen Institute Conference in Colorado entitled “State Crimes: Punishment or Pardon” as the inaugurating event for this debate. See generally Alice H. Henkin, State Crimes: Punishment or Pardon (Conference Report), in 1 Transitional Justice: How Emerging De- mocracies Reckon With Former Regimes 184 (Neil J. Kritz ed., 1995) (presenting a summary of the conference). The debate took on special focus through a scholarly exchange in the Yale Law Journal between Diane Orentlicher and Carlos S. Nino, who served as a legal advisor to Argentina’s President Alfonsín. See Orentlicher, supra note 3, at 2540 (arguing for a duty to prosecute “espe- cially atrocious crimes”); Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, 100 Yale L.J. 2619, 2639–40 (1991) (arguing that political contexts must be taken into account when designing an approach to criminal justice in transitions); Diane F. Orentlicher, A Reply to Professor Nino, 100 Yale L.J. 2641, 2641–42 (1991) (rebutting Nino’s interpretation of her viewpoint on the inflexibility of the positive duty to prosecute). In her au- thoritative first article, Orentlicher sets the legal parameters for a state’s duty to prosecute. Nino, in turn, perceives this as too rigid for the political realities of countries in transition and suggests that we need to be sympathetic to the factual circumstances of each country. Nino also notes that an “unrelenting” duty to prosecute may put leaders under pressure and make them look weak. Nino, supra note 12, at 187. This debate culminated in 1995 with the publication of Neil Kritz’s three-volume book presenting the wide array of opinions on the matter. See generally Transitional Justice: How Emerging Democracies Reckon With Former Regimes, supra. 45 See Richard Goldstone, Preface to Human Rights in Political Transitions: Gettysburg to Bosnia 9, 9 (Carla Hesse & Robert Post eds., 1999). 46 Roht-Arriaza & Gibson, supra note 31, at 844. Outlawing amnesty: the return of criminal justice ... 69EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 For that reason, Chilean human rights lawyer José Zalaquett has argued that “the real question is to adopt, for every specific situation, the measures that are both feasible and most conducive to the purpose of contributing to build or recons- truct a just order.”47 In this stream of discussion, truth commissions were discussed as promoting “a different, possibly better, kind of justice than do criminal convic- tion and punishment—‘restorative’ justice.”48 Soon, transitional justice literature began to examine more fully the validity of alternative justice mechanisms, such as truth commissions.49 The argument was made that these mechanisms provided a better historical account of the past by revealing the patterns, causes, and context of abuses and by challenging the prevailing wisdom regarding former regimes.50 Transitional justice expanded to include questions concerning how to “heal” whole societies, with a restorative focus.51 As Nigel Biggar explains, “[t] hinking of criminal justice primarily in terms not of retribution but of the vindication of victims significantly relaxes the tension between justice and the politics of making peace.”52 His definition of justice folds other kinds of justice (restorative, reparati- ve, historical) into a general category of justice, lessening the urgency of criminal trials. In this way, collecting victim testimonies, awarding reparations, and ensu- ring institutional reforms serve as a proxy for criminal justice.53 Biggar poses the question: “Making peace or doing justice: must we choose?”54 In other words, if all measures count equally toward the same overarching goal of peace and recon- ciliation, then the idea of choice becomes moot. Yet Biggar frames the perceived choice in terms of political demands to make peace and moral claims for justice, overlooking the fact that demands for justice also arise out of legal claims.55 47 See Naomi Roht-Arriaza, The Need for Moral Reconstruction in the Wake of Past Human Rights Violations: An Interview with José Zalaquett, in Human Rights in Political Transitions: Gettysburg to Bosnia, supra note 45, at 195, 197; see also José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 Hamline L. Rev. 623, 628 (1990). The issue of particular historical and political contexts counsels that “true political reconstruction is always a matter of local initiative that does not lend itself to external compulsion . . . .” Carla Hesse & Robert Post, Introduction to Human Rights in Political Transi- tions: Gettysburg to Bosnia, supra note 45, at 13, 19. 48 Kent Greenawalt, Amnesty’s Justice, in Truth v. Justice: The Morality of Truth Commissions 189, 198 (Robert I. Rotberg & Dennis Thompson eds., 2000). 49 See, e.g., Timothy Phillips & Mary Albon, When Prosecution Is Not Possible: Alternative Means of Seeking Accountability for War Crimes, in War Crimes: The Legacy of Nuremberg 244 (Belinda Cooper ed., 1999). 50 See Harvey M. Weinstein & Eric Stover, Introduction: Conflict, Justice and Reclamation, in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity 1, 13–14 (Eric Stover & Harvey M. Weinstein eds., 2004). See generally Lisa J. Laplante, The Peruvian Truth Com- mission’s Historical Memory Project: Empowering Truth-Tellers to Confront Truth Deniers, 6 J. Hum. Rts. 433 (2007) (providing an overview of the justifications for truth-telling exercises like a truth commission). It is noteworthy that while at the Aspen Institute conference there was no agree- ment on the obligation to punish, all participants agreed on the basic obligation to investigate the truth. Henkin, supra note 44, at 186. 51 Teitel, supra note 9, at 77. 52 Nigel Biggar, Making Peace or Doing Justice: Must We Choose?, in Burying the Past: Making Peace and Doing Justice After Civil Conflict 3, 16–17 (Nigel Biggar ed., 2003). 53 See id. at 11–13. 54 Id. at 3. 55 Id. at 13. Lisa J. Laplante 70 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 This period of scholarly debate helped elevate the status of truth commis- sions from a “second-best” alternative to a mechanism at least as important as criminal justice in the transitional justice movement.56 Yet in this phase, the mo- vement often went too far to the other extreme. The celebration of truth commis- sions seemed to overshadow criminal trials, making them seem an almost bygone, antiquated feature of justice.57 Martha Minow, a proponent of the restorative view of justice, described supporters of criminal justice as idealists who espouse “stirring but often shrill and impractical claims, such as the ‘duty to prosecute’” and as scholars who are remote from nations struggling with transitional justice.58 Yet Minow’s account overlooks internal divisions within nations and the fact that local actors, especially victims-survivors, do not easily compromise their demands for criminal justice.59 Indeed, ongoing local challenges to amnesty laws helped keep the embers of the debate slowly burning, ready to explode through an even- tual resurgence of international criminal law. 2.3 Foreshadowing change: south african victim-survivors challenging amnesties Experience on the ground, as documented by anthropologists, has shown that the theoretical debates often overlooked the demands of victim-survivors, whose hunger for trials remained even when elites compromised criminal justice. The events that unfolded around the creation of South Africa’s Truth and Recon- ciliation Commission in 1995 demonstrate this reality.60 The South African expe- rience not only helped make truth commissions a part of popular culture, but also 56 See generally Lisa J. Laplante & Kimberly Theidon, Truth with Consequences: Justice and Repara- tions in Post-Truth Commission Peru, 29 Hum. Rts. Q. 228 (2007) (discussing the heightened status of truth commissions in transitional justice); Charles Villa-Vicencio, A Different Kind of Justice: The South African Truth and Reconciliation Commission, 1 Contemp. Just. Rev. 407 (1999) (discuss- ing favorably the truth commission model used by South Africa); Charles Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Com- missions Meet, 49 Emory L.J. 205, 220 (2000) (advising against an absolute duty to prosecute). 57 See, e.g., Mark J. Osiel, Why Prosecute? Critics of Punishment for Mass Atrocity, 22 Hum. Rts. Q. 118, 119–21 (2000) (providing a summary of the nine arguments against resorting to criminal prosecution following mass atrocities). 58 .Minow, supra note 3, at 28. 59 See Laplante & Theidon, supra note 56, at 241–44 (sharing ethnographic research on the resilient quest for criminal trials). 60 The South African Truth and Reconciliation Commission rose to such a high status that it made discussion of the topic mainstream and spawned perhaps more scholarly analysis than any other truth commission. See, e.g., Kader Asmal, Truth, Reconciliation and Justice: The South African Experience in Perspective, 63 Mod. L. Rev. 1, 10–19 (2000) (discussing South Africa’s Truth Com- mission and amnesty laws); John Dugard, Reconciliation and Justice: The South African Experience, 8 Transnat’l L. & Contemp. Probs. 277 (1998) (offering an overview of South Africa’s amnesty laws and their subsequent legal challenge); Sam Garkawe, The South African Truth and Reconcili- ation Commission: A Suitable Model to Enhance the Role and Rights of the Victims of Gross Violations of Human Rights?, 27 Melb. U. L. Rev. 334 (2003) (discussing the amnesty process from the perspective of victims); Rosemary Nagy, Violence, Amnesty and Transitional Law: “Private” Acts and “Public” Truth in South Africa, 1 Afr. J. Legal Stud. 1, 3 (2004) (arguing that amnesty led to a “truncated” truth). Outlawing amnesty: the return of criminal justice ... 71EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 simultaneously created the inference that amnesties are an acceptable feature of transitional justice.61 Indeed, amnesty in exchange for truth constituted a central aspect of South Africa’s 1995 Promotion of National Unity and Reconciliation Act, promising complete immunity to perpetrators of crimes “associated with a political objective . . . in the course of the conflicts of the past” but only if they offered “a full disclosure of all relevant facts.”62 The law permitted some of the country’s most notorious perpetrators to escape justice and created an outcry, mostly among victims, even while it was applauded internationally as a model for future truth commissions. Eventually this local disagreement led to a legal challenge of the Act ba- sed on both national and international law.63 The South African Constitutional Court, though, dismissed the plaintiff ’s international law arguments.64 It held that, in fact, the National Unity and Reconciliation Act was “compatible” with international law, and pointed to the Latin American experience to validate the use of amnesties in political transitions.65 Although reluctantly concurring in the judgment, in his separate opinion Justice John Didcott explicitly recognized the compromises being asked from South Africa’s citizens in upholding the constitu- tionality of South Africa’s amnesty laws because he conceded that the amnesty laws denied the victims’ their right to justice.66 Significantly, while victim-survivors rejected the decision and lobbied for full criminal justice, the press coverage and public reaction to the decision dismis- sed their concerns due to the hegemonic language of reconciliation.67 Ultimately, the judgment served as a “watershed” in South Africa’s transition as “a reconci- liatory version of human rights talk triumphed” over one that put criminal justice front and center.68 Richard Wilson concludes, however, that “[t]he most damaging 61 See Audrey R. Chapman & Hugo Van der Merwe, Introduction: Assessing the South African Tran- sitional Justice Model, in Truth and Reconciliation in South Africa: Did the TRC Deliver? 1, 8 (Audrey R. Chapman & Hugo Van der Merwe eds., 2008) (commenting that the South African truth commission “captured public attention throughout the world and provided the model for succeeding truth commissions”); Catherine Jenkins, ‘They Have Built a Legal System Without Punishment’: Reflections on the Use of Amnesty in the South African Transition, 64 Transformation: Critical Persp. on S. Afr. 27, 31 (2007) (noting that internationally “the policy of ‘reconcilia- tion’ adopted in South Africa, of which the amnesty process is seen as a part, has commanded considerable respect”). 62 Promotion of National Unity and Reconciliation Act 34 of 1995 s. 20(1), 20(7), available at http://www.doj.gov.za/trc/legal/act9534.htm. 63 The widow of Steven Biko, founder of the Black Consciousness Movement in South Africa and who died from torture in 1977, was the first to bring a case. See Hesse & Post, supra note 47, at 13–14. 64 See Richard A. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post- Apartheid State 167–70 (2001) (providing a historical account of the South African Constitutional Court’s ruling on the country’s amnesty laws). 65 .Id. at 169–70. 66 Id. at 172. 67 Id. at 171. 68 Id. at 172. But see Jonathan Klaaren & Howard Varney, A Second Bite at the Amnesty Cherry? Constitutional and Policy Issues Around Legislation for a Second Amnesty, 117 S. Afr. L.J. 572, 581–92 (2000) (offering a critical analysis of the Court’s decision). Lisa J. Laplante 72 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 outcome of truth commissions is a result of their equating of human rights with reconciliation and amnesty.”69 Wilson speaks of “the large gap” between political reality and the survi- vors’ expectations of justice, since the vast majority of survivors preferred pu- nishment.70 Thus, unlike the passive view of victims presented by Biggar, Wilson introduces us to the idea of victims as protagonists. Transitional justice projects must consider the demands of victims and what they need for closure. These con- siderations put into question the legitimacy of amnesties. Wilson discusses how the ambiguity of international law regarding the le- gitimacy of amnesties at the time of South Africa’s transition made the issue less clear. As Wilson states: “International criminal law is highly ambivalent on the question of amnesty, and the tension between national amnesties and internatio- nal human rights treaties has a long history.”71 Writing in 2001, Wilson points out that this ambiguity allows one, by “quoting selectively,” to “construct an ar- gument to either justify or negate a national amnesty.”72 At that time, the well- -accepted doctrine of sovereign prerogative gave an individual’s right to justice far less weight than the social good of stability.73 With great foresight, Wilson predic- ted that the “stand-off between ‘international retributionists’ and the ‘nationalist pragmatists’ over what international law definitively states on the question of amnesty is likely to shift in coming years,” especially in light of the increasing importance of the International Criminal Court (ICC).74 3 A changing global context: a legal framework to challenge amnesties As the new millennium neared, just as it seemed the truth v. justice debate tipped against criminal justice, the legitimacy of amnesty laws took on “renewed importance” in a new international context.75 Indeed, although successor regi- mes since antiquity have had to deal with the crimes of their predecessors and frequently resorted to amnesties, contemporary developments and globalization began to give this task “an international dimension” through the growth and recognition of both international human rights and international crimes.”76 One sees two parallel movements that now seem to be converging, suggesting that cri- minal justice may once again be a solid pillar in the transitional justice paradigm. 69 Wilson, supra note 64, at 228. 70 Id. at 25. 71 Id. 72 Id. at 169. 73 See id. at 26. 74 Id. at 171. Other scholars and practitioners also speculated that the renewed international commitment to criminal justice would begin to change the terms of the truth v. justice debate. See, e.g., Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 256 (1997) (“Two or three years from now, analysts will have to reexamine everything said today about truth and justice in light of what these experiments produce.”). 75 William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467, 467 (2001). 76 Dugard, supra note 20, at 269. Outlawing amnesty: the return of criminal justice ... 73EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Today, a more solidified body of international law places new restrictions on local decisionmakers, suggesting that the choice that underscored the truth v. justice di- lemma may be moot.77 Indeed, the transitional justice pendulum has now swung back towards a focus on criminal trials, but this time embedded in legal not moral terms, thereby leaving less room for political considerations and manipulations. Most significantly, with the birth of this new legal union we can glimpse the im- pending demise of amnesty. 3.1 International criminal law: individual accountability for atrocities Clearer legal limits on sovereign prerogatives during political transitions began to form half a century after World War II through the incremental develo- pments of international criminal law. Even though the Nuremburg legacy did not increase the frequency of criminal trials, it did spawn a growing body of treaty law expressly requiring criminal prosecutions.78 Specific international crimes were co- dified in the Genocide Convention,79 the Geneva Conventions of 1949,80 Protocol I and II of 1977,81 and the Convention Against Torture.82 This new international criminal framework was strengthened further upon the creation of the interna- tional tribunals for Rwanda83 and the former Yugoslavia,84 and the establishment 77 See Teitel, supra note 9, at 76. 78 See Kristin Henrard, The Viability of National Amnesties in View of the Increasing Recognition of Individual Criminal Responsibility at International Law, 8 Mich. St. U.-Detroit C.L. J. Int’l L. 595, 600 (1999) (tracing the creation of treaties prohibiting genocide, torture, and war crimes to the Nuremburg principles). 79 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277. 80 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter First Ge- neva Convention]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Second Geneva Convention]; Geneva Convention relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]; Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention]. Cer- tain acts are specified in the Geneva Conventions as “grave breaches.” First Geneva Convention, supra, arts. 49–50; Second Geneva Convention, supra, arts. 50–51; Third Geneva Convention, supra, arts. 129–30; Fourth Geneva Convention, supra, arts. 146–47. Common Article 3 of the Geneva Conventions applies to conflicts of a noninternational nature. See, e.g., First Geneva Convention, supra, art. 3. 81 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec- tion of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3. This protocol also identifies acts which are classified as “grave breaches.” See id. arts. 11, 85, 86. 82 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish- ment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. 83 See S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing an international tribunal for Rwanda). 84 See S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (establishing an international tribu- nal for the former Yugoslavia). Lisa J. Laplante 74 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 of the ICC.85 These developments established the legal norm that the most egre- gious international crimes, including genocide, crimes against humanity, and war crimes, require punishment.86 Suddenly, the status of amnesties became suspect once again as scholars and practitioners speculated whether the ICC would respect national legislation that contravened the very essence of its subject matter jurisdiction.87 The idea of immu- nity took a strong hit after the surprise arrest of Pinochet in London in 1998 and the decision by the House of Lords to strip the former head of state of his immunity during extradition proceedings brought by a Spanish judge seeking to try Pinochet for human rights violations.88 This decision also demonstrated that national amnes- ties have no legal effect in non-national, third country prosecutions.89 A growing international grassroots movement then began to challenge the general acquiescence to the “pervasive practice of impunity” that let those guilty of murder to go “literally, scot-free.”90 The situation in Haiti became a quintessen- tial example of amnesty failing to bring peace and deter future violence, further undermining the political rationale for amnesty.91 Policy arguments then arose in 85 On July 17, 1998, delegates to the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome voted to adopt what is now called the “Rome Statute.” Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute]; see also United Na- tions Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, June 15–July 17, 1998, Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998). 86 Dugard, supra note 60, at 278 (discussing the significance of the international tribunals cre- ated in the 1990s). 87 Sang Wook Daniel Han, The International Criminal Court and National Amnesty, 12 Auckland U. L. Rev. 97, 97–98 (2006) (exploring the parameters of how the ICC would decide on do- mestic amnesties); Dwight G. Newman, The Rome Statute, Some Reservations Concerning Amnesties, and a Distributive Problem, 20 Am. U. Int’l L. Rev. 293, 296–99 (2004) (reviewing the debates over whether the ICC will respect national amnesties); Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 Eur. J. Int’l L. 481, 483 (2003); Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 522–27 (1999) (arguing that the ICC should respect national amnesty laws in some situations); Trumbull, supra note 43, at 286 (concluding that even if do- mestic amnesties have no binding effect on a third party’s ability to prosecute under the theory of universal jurisdiction, political reasons may cause one to defer to immunity measures). The status of domestic immunity measures also arose before the international tribunal of the former Yugoslavia. See O’Brien, supra note 23, at 265–66. 88 Evans, supra note 33, at 209–11 (discussing the history of the extradition proceedings against Pinochet); Andreas O’Shea, Pinochet and Beyond: The International Implications of Amnesty, 16 S. Afr. J. Hum. Rts. 642, 643 (2000) (discussing the extradition proceedings against Pinochet and their implications for the legality of national amnesties and universal jurisdiction). 89 O’Shea, supra note 88, at 643. 90 Joyner, supra note 20, at 595; see also Jenkins, supra note 61, at 29 (discussing the “battle against impunity” that occurred with the status of amnesty in flux). 91 Haiti has experienced continuing cycles of violence and repression in the period since the twenty-nine year “Duvalier Dynasty” (referring to dictator Francois Duvalier, who fled to exile in 1986), due in part to its failure “to expose, let alone punish, the crimes of the past.” Kenneth Roth, Human Rights in the Haitian Transition to Democracy, in Human Rights in Political Transi- tions: Gettysburg to Bosnia, supra note 45, at 93, 95–97. Outlawing amnesty: the return of criminal justice ... 75EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 favor of criminal justice.92 The idea of choice became viewed by top scholars as fallacious given that “the attainment of peace is not necessarily to the exclusion of justice, because justice is frequently necessary to attain peace.”93 Juan Méndez, now president of the International Center for Transitional Justice, wrote in 1997 that transitional governments face “one of the hardest choices” given the tempta- tion to equate reconciliation with “forgive-and-forget policy.”94 Nevertheless, he argued that wounds cannot be swept under the rug and warned against “tokenism and a false morality that only thinly disguises the perpetuation of impunity.”95 The mantra of the movement was reflected in the preamble of the ICC’s Rome Statute, which called for “an end to impunity.”96 The creation of the ICC has been credited by some with ushering in a “new order of international crimi- nal responsibility” to address gross abuses of human rights and fill in the gaps of domestic legal systems.97 Trials suddenly became “an essential component of reconciliation”98 and amnesties were the tools for perpetrating impunity rather than reconciling warring parties.99 3.2 Human rights law: the right to justice and the duty to prosecute One of the other significant challenges to amnesty arises out of the legal framework of international human rights law and the resulting “rights talk” which has made human rights dictum a global norm.100 What was once a matter of only national politics and morality now must be grappled with in universal legal terms. It is important to remember that the political transitions in Latin America occurred before a strong and cohesive international legal human rights framework existed, and thus the choice of approaches was presented in terms of “justice v. democracy”- —a logic of peace and war that omitted almost entirely a “logic of law.”101 The terms of the debate were thus limited to a false dichotomy based on a limited perception 92 “Redressing the wrongs committed through human rights violations is not only a legal obli- gation and a moral imperative imposed on governments. It also makes good political sense in the transition from dictatorship to democracy. In fact, the pursuit of retrospective justice is an urgent task of democratization, as it highlights the fundamental character of the new order to be established, an order based on the rule of law and on respect for the dignity and worth of each human person.” Méndez, supra note 16, at 1. 93 Bassiouni, supra note 43, at 12; see also Dugard, supra note 20, at 285 (“Restoration of fidelity to the law is essential in a society which has been subjected to inhumanity in the name of the law.”). 94 Méndez, supra note 16, at 1. 95 Id. 96 Rome Statute, supra note 85, pmbl. 97 See Newman, supra note 87, at 316. 98 Dugard, supra note 20, at 287. 99 Garth Meintjes & Juan E. Méndez, Reconciling Amnesties with Universal Jurisdiction, 2 Int’l L.F. 76, 76–77 (2000). William Schabas contends that the experience of Sierra Leone suggests that combatants do not necessarily need an amnesty to come forward, and some rebels will never be enticed to testify even with the promise of amnesty. William A. Schabas, Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U.C. Davis J. Int’l L. & Pol’y 145, 152–53 (2004). 100 See Jennifer L. Balint, The Place of Law in Addressing Internal Regime Conflicts, Law & Contemp. Probs., Autumn 1996, at 103, 104–05. 101 See Méndez, supra note 16, at 7–8. Lisa J. Laplante 76 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 of reality. As Teitel states: “The observation that amnesty practices are often de fac- to associated with transitions is somehow turned into a normative statement about the relation of exercises of mercy to the liberal rule of law.”102 In other words, because amnesty was what most national politicians opted for, it was assumed this was the only acceptable way to establish peace and the rule of law after years of lawlessness and widespread human rights abuses. State practice seemed to demonstrate that amnesties were not prohibited by interna- tional law.103 Méndez recognizes, however, that until recently, many of these po- liticians could not count on “a stronger voice of support from the international community for the efforts [to prosecute].”104 Because human rights treaties are generally silent on the duty to guarantee criminal prosecutions,105 they were once assumed to trigger state liability only where a state failed to protect the rights of individuals under its jurisdictional control. Liabili- ty, in turn, usually led to a declaratory judgment and sometimes to compensation and orders for reform.106 As the truth v. justice debate began to take hold, however, human rights law evolved to include criminal prosecutions. One can see this influence, in par- ticular, in the Inter-American System of Human Rights and its role in expanding in- ternational human rights obligations.107 The Inter-American System traces it origins to the 1948 creation of the Organization of American States (OAS), an international organization comprised of member states from North, Central, and South Ameri- ca.108 In 1959, the OAS established the IACHR to monitor and report on the human rights situations in member countries.109 Ten years later, in 1969, the OAS created the American Convention on Human Rights.110 When the American Convention entered into force in 1978, the IACtHR became the enforcement body for the treaty, with 102 Teitel, supra note 1, at 55. 103 Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, 63 Wash. & Lee L. Rev. 339, 342–44 (2006) (arguing that state practice does not support the ban on amnesties). 104 Méndez, supra note 74, at 272. 105 Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, Law & Contemp. Probs., Autumn 1996, at 41, 48. 106 See Lisa J. Laplante, Bringing Effective Remedies Home: The Inter-American Human Rights System, Reparations, and the Duty of Prevention, 22 Neth. Q. Hum. Rts. 347, 350 (2004). 107 For a more detailed account of the Inter-American System of Human Rights, see Jo M. Pasqua- lucci, The Practice and Procedure of the Inter-American Court of Human Rights 2–7 (2003); Jo M. Pasqualucci, The Whole Truth and Nothing but the Truth: Truth Commissions, Impunity and the Inter- American Human Rights System, 12 B.U. Int’l L.J. 321, 361–64 (1994); Brian D. Tittemore, Ending Impunity in the Americas: The Role of the Inter-American Human Rights System in Advancing Accountabil- ity for Serious Crimes Under International Law, 12 Sw. J. L. & Trade Am. 429 (2006). 108 For a discussion of the historical evolution of the Inter-American System, see Thomas Buergen- thal, Protecting Human Rights in the Americas: Cases and Materials 37–44 (4th ed. 1995); Tom Farer, The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox, in The Inter-American System of Human Rights 31 (David J. Harris & Stephen Livingstone eds., 1998). 109 Statute of the Inter-American Commission on Human Rights, O.A.S. G.A. Res. 447, Inter- Am C.H.R., 9th Sess., OAS/Ser.L/V/I.4, rev. 8 (Oct. 1979), available at http://www.cidh.oas.org/ Basicos/English/Basic17.Statute%20of%20the%20Commission.htm 110 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123. Outlawing amnesty: the return of criminal justice ... 77EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 contentious jurisdiction to issue binding decisions involving human rights violations by member states.111 Significantly, the development of the Inter-American System coincided with the political transitions in Latin America discussed above in Part I. The Inter- -American System generally took a hard stand against prior oppressive regimes. In the mid-1980s, however, the IACHR displayed caution regarding the obligations of “recent democracies” to investigate and initiate prosecutions of human rights violations of previous governments, stating that an international body could only make “minimal” contributions to the “sensitive and extremely delicate issue” of whether recent democracies should prosecute past abuses.112 Undoubtedly, the IACHR’s hesitation reflected the relative youth of the human rights system and the lack of a solidified legal framework to support a more definitive position on the duty to investigate and prosecute human rights crimes.113 However, the IA- CHR began to take a consistent position on the duty to prosecute once the IAC- tHR issued a landmark decision on the matter in the Velásquez Rodríguez case in 1988.114 There, the IACtHR held that state parties have a duty to “ensure” the enumerated rights of the Convention, which, in turn implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide com- pensation as warranted for damages resulting from the violation.115 111 See Victor Rodríquez Rescia & Marc David Seitles, The Development of the Inter-American Hu- man Rights System: A Historical Perspective and a Modern-Day Critique, 16 N.Y.L. Sch. J. Hum. Rts. 593, 608–19 (2000) (providing a historical overview of the development of the IACtHR). 112 Inter-Am. Comm’n on Human Rights [IACHR], Annual Report of the Inter-American Commission on Human Rights 1985–1986, OEA/Ser.L/V/II.68, doc. 8, rev. 1, at ch. V (Sept. 26, 1986), avail- able at http://iachr.org/annualrep/85.86eng/chap.5.htm [hereinafter 1985–1986 Annual Report]. The Commission thus found that the response “must come from the national sectors which are themselves affected, and the urgent need for national reconciliation and social pacification must be reconciled with the ineluctable exigencies of an understanding of the truth and of justice.” Id. 113 See Scharf, supra note 105, at 51 (discussing how the evolution of the human rights normative framework would eventually lead to a change in the IACHR’s position). 114 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988). 115 Id. ¶ 166 (emphasis added). Several scholars argue that the Velásquez Rodríguez decision should not be read too broadly because the Court did not order criminal prosecutions in that particular case. See Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, Law & Contemp. Probs., Autumn 1996, at 197, 210 (questioning if this holding is “iron clad” be- cause the Court did not order criminal investigations in that case); Scharf, supra note 105, at 50–51 (arguing that the Court’s ruling is not an absolute requirement because it did not order criminal investigations at the reparation stage); Trumbull, supra note 43, at 298–99 (adopting the view that the failure to order prosecution diminishes the weight of the case). However, the IACtHR repeatedly refers to this general holding in subsequent cases in which it does order criminal investigations, thus suggesting that the interpretation of these scholars may not be accurate. See Fernando Felipe Basch, The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and its Dangers, 23 Am. U. Int’l L. Rev. 195, 196–203 (2007). Lisa J. Laplante 78 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Thus, if a state fails to investigate, prosecute, and punish perpetrators of human rights violations, it becomes liable.116 Moving forward, the IACHR then consistently began to question the appropriateness of amnesties in Latin Ameri- can political transitions through its reports on individual cases as well as through its annual and country reports.117 The Commission took this position even when countries had created a truth commission, stating that these investigations and payments of compensation were “not enough.”118 In this way, the IACHR became one of the first international human rights monitoring bodies to find amnesty laws contrary to basic human rights princi- ples.119 Yet, because the IACHR’s decisions are not binding, states often respon- ded by either ignoring its recommendation, or providing the classic argument that the need to balance peace with justice justified the laws.120 Nevertheless, these Inter-American System decisions helped build a bridge between the evolving field of international criminal justice and human rights law by recognizing that the principle of individual criminal responsibility is fundamental to the punishment 116 See Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Viola- tions in International Law, 78 Cal. L. Rev. 449, 513 (1990). The European Court of Human Rights arrived at this same conclusion in Kurt v. Turkey, 1998-III Eur. Ct. H.R. 1152 (1998), in which it held that states have a duty to investigate, prosecute, and punish human rights violations. 117 See, e.g., Garay Hermosilla v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95, doc. 7 rev. ¶ 105 (1996); Consuelo v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 ¶ 50 (1992–93) (concluding that amnesty laws violate the judicial guarantees embodied in Articles 8 and 25 of the American Convention); Mendoza v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/ II.83, doc. 14 ¶ 54 (1992–93); Massacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/Ser.L/V/II.83, doc. 14, at 83 (1992–93) (declaring that amnesty laws in El Salvador contravene the American Convention); IACHR, Report on the Situation of Hu- man Rights in Peru, OEA/Ser.L/V/II.83, doc. 31 (Mar. 12, 1993) (“One element that has been par- ticularly disturbing to the Commission is that up until 1990, no member of the security forces had been tried and punished for involvement in human rights violations.”), available at http:// iachr.org/countryrep/Peru93eng/background.htm#f.%20Impunity; 1985–1986 Annual Report, supra note 112, ch. IV, available at http://www.cidh.oas.org/annualrep/85.86eng/chap.4.htm (ad- dressing political transitions in the region and attempting to strike a balance between peace and the state’s obligation to investigate). 118 Garay Hermosilla, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, ¶ 77. 119 See Canton, supra note 39, at 170–71 (viewing the IACHR’s decisions as among the first to reject amnesty laws). But see Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857, 865–70 (1995) (arguing that the IA- CHR did outright condemn amnesties but left open that if they adhered to certain requirements they would be acceptable). The United Nations has also issued strong opinions on blanket amnesties. See, e.g., U.N. Human Rights Comm. [UNHRC], Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, ¶ 9, U.N. Doc. CCPR/C/79/Add.67 (July 25, 1996) (commenting on Peruvian amnesty law); UNHRC, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, ¶ 153, U.N. Doc. CCPR/C/79/Add.46 (Apr. 5, 1995) (stating that Argentina’s blanket amnesty laws are inconsistent with the International Cov- enant of Political and Civil Rights and expressing concern that these laws may create an “atmo- sphere of impunity” and violate victims’ rights to redress); Rodríguez v. Uruguay, Commc’n No. 322/1988, Human Rights Comm., U.N. Doc. CCPR/C/51/D/322/1988 ¶ 12.2 (Aug. 9, 1994) (holding that Uruguay’s amnesty laws impaired the right to an adequate remedy). 120 See Canton, supra note 39, at 177. Outlawing amnesty: the return of criminal justice ... 79EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 of serious human rights crimes.121 Essentially, a human rights violation not only triggered state responsibility, but could also constitute an international crime.122 States cannot be brought to criminal trials for human rights violations, but the individuals who make up the state apparatus can.123 This development directly challenged the unconditional prerogative of the sovereign to decide matters of criminal jurisdiction.124 The choice of amnesty no longer depended solely on in- ternal political considerations and “elite preferences” because legal rules now tied the hands of politicians in regime changes.125 The rights of victim-survivors, such as the “right to truth” and the “right to an effective remedy” (which includes criminal investigations and prosecutions) now factor into the truth v. justice balancing equation.126 Furthermore, the denial of these rights by a state will trigger new violations.127 Thus, it is now understood that the state not only has a duty to pursue criminal prosecutions, but also a duty to uphold a victim’s right to a remedy.128 3.3 Current affairs: qualified amnesties Despite the impressive inroads paved by the converging paths of interna- tional criminal law and international human rights, the resilience of amnesty re- mains. A majority of scholars and practitioners continue to defend the legitimacy 121 See Mirko Bagaric & John Morss, In Search of Coherent Jurisprudence for International Crim- inal Law: Correlating Universal Human Responsibilities with Universal Human Rights, 29 Suffolk Transnat’l L. Rev. 157, 204–06 (2006) (examining the overlap and connection between interna- tional criminal law and human rights). 122 See Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations 20, 50 (1992); Henrard, supra note 78, at 605–09 (discussing the concept of indi- vidual criminal responsibility for international crimes). 123 Joyner, supra note 20, at 607–08. 124 See Antonio Cassese, On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 Eur. J. Int’l L. 2, 11–12 (1998). 125 See David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American South- ern Cone, in 1 Transitional Justice: How Emerging Democracies Reckon With Former Regimes, supra note 44, at 82, 82–84, 100; see also Méndez, supra note 16, at 3–8; Pasqualucci, supra note 107, at 345 (referring to the historical deference to national decisions to implement amnesty). 126 See Raquel Aldana-Pindell, An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes, 26 Hum. Rts. Q. 605, 622–27 (2004) (ex- ploring how criminal prosecutions are included as part of the right to remedy enjoyed by victims in the Inter-American System); Pasqualucci, supra note 107, at 349–59 (discussing the legal duty to ensure human rights by providing an “effective remedy” as recognized by the American Convention); Sherrie L. Russell-Brown, Out of the Crooked Timber of Humanity: The Conflict Between South Africa’s Truth and Reconciliation Commission and International Human Rights Norms Regarding “Effective Remedies,” 26 Hastings Int’l & Comp. L. Rev. 227, 231–54 (2003) (providing an over- view of the right to a remedy in international law). 127 See Aldana-Pindell, supra note 126, at 611. See generally Dinah Shelton, Remedies in Inter- national Human Rights Law 113–43 (2d ed. 1999) (discussing the state obligation to repair human rights violations). 128 See Roht-Arriaza, supra note 116, at 474–89. This general line of thinking originated with the Orentlicher-Nino debate. See supra note 44 (discussing the Orentlicher-Nino debate). This view was eventually adopted by the IACtHR. See Villagrán Morales v. Guatemala, 2002 Inter-Am. Ct. H.R. (ser. C) No. 77, ¶ 99 (May 26, 2001) (holding that the duty to prosecute is separate from a state’s duty to make reparations). Lisa J. Laplante 80 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 of amnesties, although now in legal terms rather than practical and political ones. One sees this trend in a new line of scholarship seeking to establish guidelines, tests, and parameters for “legitimate” amnesties.129 Thus, an inverse relation be- tween international legal parameters and amnesties has emerged. As the legal rules regarding transitional justice have expanded, the breadth of amnesty provi- sions has been reduced. Consensus now rejects blanket amnesties barring all types of investigations.130 The question is now: “What type of amnesty is acceptable in a given situation?”131 Part of the answer to this remaining question revolves around the paradox of legality in transitional justice settings: the rule of law depends on strictly ob- serving issues of legality while putting on trial those who forsake the rule of law. Prosecutors in criminal trials must struggle to observe restrictions such as nullem crimen sin lege, which protects against ex post facto justice and punishment for acts not criminalized at the time of commission.132 To counter this problem, it is now generally accepted that amnesties cannot be applied where treaties obligate states to prosecute or where customary law may be interpreted to compel pro- secution.133 Amnesties are unlawful for war crimes and treaty crimes, which are explicitly enumerated in the Geneva Conventions, the Genocide Convention, and the Torture Convention. Each of these conventions encapsulates the doctrine of aut dedere aut judicare (extradite or prosecute).134 Recently, a new line of argument 129 See, e.g., Burke-White, supra note 75, at 468 (proposing that liberal international law theory could be used to accommodate the preferences of individuals and social actors in determining the validity of amnesty); Henrard, supra note 78, at 645–48 (discussing qualified amnesties that include selective prosecution); Newman, supra note 87, at 306–16 (exploring the accepted limits of amnesties); Ronald C. Slye, The Cambodian Amnesties: Beneficiaries and the Temporal Reach of Amnesties for Gross Violation of Human Rights, 22 Wis. Int’l L.J. 99, 121 (2004) (suggesting that the decision regarding who should be protected by amnesty and for how long will influence the legitimacy of an amnesty); Slye, supra note 5, at 239–47 (proposing situations when amnesties may be legitimate, including “compromise,” “corrective,” and “accountable” amnesties); Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, Int’l Security, Winter 2003/04, at 5, 7 (arguing that the “logic of consequences” should shape “strategies of justice”); Trumbull, supra note 43, at 319–26 (proposing a balancing test using the criteria of process, substance, and domestic and international circumstances to deter- mine when amnesties are appropriate). 130 See Slye, supra note 5, at 191 (discussing the limits of blanket amnesties and the need for states to take action to address the past). 131 See Young, supra note 4, at 239 (presenting a legal framework to advise states on the proper scope of amnesty). 132 For a discussion of the concern about ex post facto issues in international criminal law, see Mark R. Von Sternberg, A Comparison of the Yugoslavian and Rwandan War Crimes Tribunals: Universal Jurisdiction and the “Elementary Dictates of Humanity,” 22 Brook J. Int’l L. 111, 131–32 (1996). 133 See Cassel, supra note 115, at 207–21 (outlining the Inter-American System treaty law that specifically requires prosecution); Trumbull, supra note 43, at 287–91 (outlining the treaty and customary law bases for barring amnesty). 134 For a discussion of the doctrine of aut dedere aut judicare and the offenses to which it gener- ally applies, see M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 3 (1995). On the treaty-based grounds for barring amnesty, see Joyner, supra note 20, at 597–607 and Naomi Roht-Arriaza, Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress, in Impunity and Human Rights in International Law and Practice, supra note 25, at 24, 25–26 (discussing the rationales of aut Outlawing amnesty: the return of criminal justice ... 81EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 includes crimes against humanity among those for which amnesty is unavailable, even though crimes against humanity are not codified in any formal convention but rather are a part of customary international law.135 Crimes that are part of customary international law that also reach the level of jus cogens come with the corresponding obligation to prosecute as an obligation ergo omnes.136 More recent examples of political transitions, even those in Latin America, have begun to demonstrate the new consensus that blanket amnesties are no longer permissible, further evidencing the growing restraint placed on national politics by international law. The direct impact of an emerging legal framework on amnesties is achieved through state practice as “state officials believe that they are under a legal obligation to hold criminals accountable, in some way, for their actions.”137 States have thus begun to draft amnesty laws in compliance with international obliga- tions.138 Although some domestic courts ruled inconsistently on the permissibility of amnesties, those that recognized and incorporated international law tended to rule against their legality.139 Writing in 1998, Naomi Roht-Arriaza and Lauren Gib- son analyzed lower court decisions on amnesty laws in Chile, El Salvador, Guatema- la, Honduras, Peru, South Africa, Argentina, and Hungary and concluded that “the trend has been from broader to more tailored, from sweeping to qualified, from laws with no reference to international law to those which explicitly try to stay within its strictures.”140 They credit this trend to the “growing importance of a discourse about impunity and accountability on an international level.”141 Despite this evident evolution in state practice, a hard and fast contingent continues to advocate that some amnesties should remain in the “toolbox of con- flict resolution” because of their usefulness for peacemaking.142 Notwithstanding the breadth of academic writing to the contrary, one commentator has also obser- ved that amnesties may not be clearly restricted by emerging international legal dedere aut judicare). In 2000, the UN Secretary-General adopted the position that amnesties could not be granted for international crimes such as genocide, crimes against humanity, or other serious violations of international humanitarian law. The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, ¶ 22, delivered to the Security Council, U.N. Doc. S/2000/915 (Oct. 4, 2000); see also The Secretary-General, Report of the Secre- tary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, ¶ 64(c), delivered to the Security Council, U.N. Doc. S/2004/616 (Aug. 23, 2004) (rejecting amnesties for genocide, war crimes, and crimes against humanity). But see Scharf, supra note 105, at 360–63 (arguing that the duty to prosecute is only required by treaty and not by customary law). 135 M. Cherif Bassiouni, “Crimes Against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457, 475 (1994); M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, Law & Contemp. Probs., Autumn 1996, at 63 (arguing that states have an obligation to prosecute for inderogable rights). 136 See Roht-Arriaza, supra note 116, at 489–505 (discussing the customary law duty to pros- ecute). 137 Trumbull, supra note 43, at 301. 138 See Lynn Berat, South Africa: Negotiating Change?, in Impunity and Human Rights in Interna- tional Law and Practice, supra note 25, at 267, 280 (discussing South Africa’s “rejection of a blanket amnesty and declared intent to abide by international law”). 139 Roht-Arriaza & Gibson, supra note 31, at 870. 140 Id. at 884. 141 Id.; see also Robert E. Lutz, A Piece of Peace: The Human Rights Accord and the Guatemalan Peace Process, 2 Sw. J. L. & Trade Am. 183 (1995). 142 See Schabas, supra note 99, at 165–66. Lisa J. Laplante 82 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 rules: “Despite the growing tension between the development of international criminal laws and institutions on the one hand, and state practice embracing amnesties on the other, there is surprisingly little international law that directly addresses the legitimacy of amnesties.”143 3.4 Calls for clarity: the uncertain future of amnesties in human rights protection Despite recent encroachments upon the validity of amnesties, the status of an outright prohibition on amnesties remains unclear. At question is whether am- nesties may be applied to crimes that constitute serious human rights violations, but do not fall into the category of treaty crimes, war crimes, or crimes against humanity. Some argue that “[w]hile international human rights groups, following human rights interpretations of international criminal law, have been enthusiastic about a complete end to amnesties, there is room for substantial ongoing legal and philosophical analysis of the questions at stake.”144 Since there is no explicit ban on all amnesties at the moment, limits must be judicially prescribed.145 In this vein, Michael Scharf in 1996 pointed out, “Once it is recognized that there is a gap in the international law requiring prosecution, two approaches are possible: one is to exploit the gap, the other is to attempt to fill it.”146 Given the risk of the former, advocates now eagerly wait for an inter- national authority to fill it. Charles Trumbull observes that given the deadlock among scholars, “the legality of amnesties for perpetrators of serious crimes under international law is in a state of transition and considerable uncertainty.”147 He then writes: “The need for the international community to reach consensus on the validity of amnesties has become more acute in light of the controversial am- nesties recently adopted by several countries.”148 4 Peru: legalizing impunity through amnesty Peru represents a new stage in the development of the transitional justice paradigm. In its endeavor to address the past without providing impunity, it has included criminal justice in its transitional process from the beginning. Peru has 143 Slye, supra note 5, at 179. 144 Newman, supra note 87, at 315. 145 See Young, supra note 4, at 232 (“No treaty provisions specifically prohibit amnesty.”). 146 Scharf, supra note 105, at 61. 147 Trumbull, supra note 43, at 285. 148 Id. at 286. There has been an attempt to create “soft law” through a consensus of academ- ics, specifically by the drafting of the Princeton Principles on Universal Jurisdiction in 2001. Princeton Univ. Program in Law & Pub. Affairs, Princeton Principles on Universal Jurisdiction (2001), reprinted in Universal Jurisdiction 21 (Stephen Macedo ed., 2004) [hereinafter Princ- eton Principles on Universal Jurisdiction]. After extensive debate, however, the scholars were not able to agree on a per se rule regarding the legality of amnesty, deciding instead that “[a]mnes- ties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law.” Trumbull, supra note 43, at 298 (quoting Princeton Principles on Universal Jurisdiction, supra, princ. 7). Outlawing amnesty: the return of criminal justice ... 83EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 set a new trend of state practice by specifically rejecting amnesty laws in its do- mestic political transition, and in doing so has helped resolve the pending ques- tion on the status of amnesties. It is important to contextualize any analysis of Peru’s legal experience by first understanding its story—how it fell into authorita- rianism and finally found its way out. Peru’s unique history has been significan- tly influenced by the Inter-American System of Human Rights, which became a great ally of the local human rights movement prior to the country’s transition. A symbiotic national-international relationship, which continues today, has ensured that, above all else, Peru fulfills its duty to protect and respect the right to justice. This collaboration of sorts began over a decade ago during the height of Fujimori’s authoritarian regime. Local victim-survivors and their advocates made “good use” of the international system to influence and support the formation of the TRC and the criminal trials that soon followed.149 Ultimately, as will be discussed in more detail below, the investigations and consequent rulings of the IACHR and the IACtHR set the terms for Peru’s approach to transitional justice, which fully embraced the principle of criminal justice. 4.1 In the name of national security Perhaps one of the Inter-American System’s greatest contributions to Peru’s national criminal justice experience was its condemnation of Fujimori’s regime through a series of cases submitted throughout the 1990s. These cases reached the Inter-American System because of the wholly ineffective recourse provided by the Peruvian domestic legal system.150 Among these, the Barrios Altos and La Cantuta cases would particularly impact the criminal justice aspect of Peru’s tran- sitional justice experience.151 Both cases revolved around an undercover death squad—a centerpiece of Fujimori’s national security apparatus. Fujimori won the 1990 presidential election as a political unknown.152 Over the following years, with the help of his right hand advisor Vladimir Montesinos, he took carefully calculated steps to gain steadily almost absolute executive po- wer, justifying his newfound authority under the guise of fighting terrorism.153 The previous administration of Alan García (1985–90) left a country devastated by both economic collapse154 and a ten-year internal armed conflict with insur- 149 Lisa J. Laplante, Entwined Paths to Justice: The Inter-American Human Rights System and the Peru- vian Truth Commission, in Paths to International Justice: Social and Legal Perspectives 216, 237 (Marie-Bénédicte Dembour & Tobias Kelly eds., 2007). 150 See id. at 219. 151 Barrios Altos Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(a) (Mar. 14, 2001); La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(18) (Nov. 29, 2006). For further discussion of these cases, see infra Part V. 152 Catherine M. Conaghan, Fujimori’s Peru: Deception in the Public Sphere 15–18 (2005) (giv- ing a historical account of the 1990 Peruvian elections and Fujimori’s candidacy). 153 Sally Bowen & Jane Holligan, El Espía Imperfecto: La Telaraña Siniestra de Vladimiro Mon- tesinos (2003) (offering a full account of the political, often illegal, influence of Montesinos on Fujimori). 154 See Eduardo Ferrero Costa, Peru’s Presidential Coup, 4 J. Democracy 28, 29 (1993) (describing how García’s policies led to spiraling foreign debt, an inflation rate that reached a rate of seven Lisa J. Laplante 84 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 gent groups including the Communist Party of Peru-Shining Path (PCP-SL).155 Fujimori capitalized on the deep unease and fear that saturated Peruvian society as a result of these circumstances by taking drastic measures to promote his free market economic plan and clamp down on political opponents.156 With the sup- port of the armed forces, Fujimori conducted an autogolpe (self-coup) on April 5, 1992, in which he shut down the bicameral Congress, dismantled the judiciary, and suspended the national constitution.157 To assure enforcement of his new authoritarian regime, he hand picked General Nicolás De Bari Hermoza-Ríos to be the Commander General of the Army and Head of the Joint Command158 and gave the executive branch direct control over the Servicio de Inteligencia Nacional (SIN) by appointing Montesinos as its de facto executive chief.159 SIN, in turn, created the death squad called El Grupo Colina (Colina).160 Colina consisted of thirty-two men and six women and worked clandestine- ly in collaboration with the Intelligence Services of the Armed Forces (SIE) under the direction of Army Majors Santiago Martín Rivas and Carlos Eliseo Pichilin- güe-Guevara.161 This clandestine group was formed to carry out “a State policy consisting in the identification, control and elimination of those persons suspec- ted of belonging to insurgent groups or who [were] opposed to the government of former President Alberto Fujimori. It operated through the implementation of systematic indiscriminate extra-legal executions, selective killings, forced disa- thousand percent and a gross national product drop of twelve percent). 155 A few years later, the insurgent group Tupac Amaru Revolutionary Movement joined the internal armed conflict. For more background on Peru’s internal armed conflict, see generally Gustavo Gorriti, The Shining Path: A History of the Millenarian War in Peru (Robin Kirk trans., Univ. N.C. Press 1999) (1990) (offering a journalist’s historical account of the strategy, actions, and challenges of the state and rebels during the war); Orin Starn, Maoism in the Andes: The Communist Party of Peru-Shining Path and the Refusal of History, 27 J. Latin Am. Stud. 399 (1995). 156 See Jo-Marie Burt, “Quien habla es terrorista”: The Political Use of Fear in Fujimori’s Peru, 41 Latin Am. Res. Rev. 32, 47 (2006) [hereinafter Burt, Quien habla]; Jo-Marie Burt, State Making Against Democracy: The Case of Fujimori’s Peru, in Politics in the Andes: Identity, Conflict, Reform 247, 255–57 (Jo-Marie Burt & Philip Mauceri eds., 2004) (describing the reconstitution of authori- tarianism in response to political violence and high inflation in Peru). 157 Maxwell A. Cameron, Latin American Autogolpes: Dangerous Undertows in the Third Wave of Democ- ratization, 19 Third World Q. 219, 224, 228–29 (1998) [hereinafter Cameron, Autogolpes]; Max- well A. Cameron, Self-Coups: Peru, Guatemala, and Russia, 9 J. Democracy 125, 127 (1998) [herein- after Cameron, Self-Coups]. See generally Charles D. Kenney, Fujimori’s Coup and the Breakdown of Democracy in Latin America (2004) (providing a comprehensive analysis of Fujimori’s self-coup). 158 See Cameron, Autogolpes, supra note 157, at 236. 159 General Julio Salazar-Monroe was SIN’s official director. Until this time, the SIN had with- ered under civilian rule and was a small, underfunded organization. Fujimori reinvigorated the office and it grew to employ thousands of agents and became “an indispensable part of the gov- ernment’s political machine and an instrument for isolating, discrediting, and spying on oppo- nents.” Roger Atwood, Democratic Dictators: Authoritarian Politics in Peru from Leguía to Fujimori, 21 SAIS Rev. Int’l Aff. 155, 171 (2001). The power of the intelligence services was also increased by the appointment of Nélida Colán as attorney general. Colán “did little to defend citizens’ rights” in the wake of major abuses by the intelligence services and removed several judges who displayed an independent streak. Cameron, Self-Coups, supra note 157, at 130. 160 See Cameron, Self-Coups, supra note 157, at 127. 161 Efraín Rúa, El Crimen de la Cantuta: La Desaparición y Muerte de un Profesor y Nueve Es- tudiantes que Estremeció al País 119–20, 130 (2005). Outlawing amnesty: the return of criminal justice ... 85EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 ppearances and tortures.”162 Although the leader of Shining Path was captured on September 12, 1992, and the insurgent movement and violence declined, Colina continued to operate under the justification of heightened national security due to alleged terrorism.163 As Peru’s “political police,” the death squad would go on to carry out some of Peru’s most notorious massacres, including those at Barrios Altos and La Cantuta.164 4.2 The massacres of barrios altos and la cantuta Peruvian journalist and author Efraín Rúa describes the Barrios Altos mas- sacre as Colina’s “consecrating act”—one that would be a rite of passage for a small group of army officers who would go on to conduct some of Peru’s most ruthless tragedies.165 This nefarious story began on November 3, 1991, when neighbors of the poor Lima neighborhood of Barrios Altos held a pollada (fundraiser) to help replace faulty drains and piping that were making their children sick.166 Around 11:30 p.m., two vehicles with sirens pulled up to the dwelling and six armed, masked men descended upon the party.167 For the next few minutes, the men fired with silencers on the crowd, killing fifteen people, including an eight-year-old child who had run to his father’s aid pleading for the killers to have mercy.168 Four other people were seriously wounded, including one man who was paralyzed after being hit with twenty-seven bullets.169 Information came forward that the Barrios Altos massacre was conducted by a government affiliated death squad as part of 162 La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(18) (Nov. 29, 2006). The IACtHR also referred to the findings of the Peruvian TRC: “The so-called ‘Colina Group,’ composed of members of the Army, is probably one of the groups specialized in forced disap- pearances and arbitrary executions most widely known . . . . In 1991, top military and political authorities ordered the officers of the intelligence operations division (AIO) belonging to the Servicio de Inteligencia del Ejército (SIE) (Army Intelligence Service) to create a squad reporting to the structure of the Dirección de Inteligencia del Ejército Peruano (DINTE), which was then known as ‘Colina Detachment.’ This group was in charge of operations especially designed to eliminate alleged subversives, sympathizers or collaborators of subversive organizations.” Id. ¶ 80(18) n.25 (quoting 6 Comisión de la Verdad y Reconciliacion [Truth & Reconciliation Com- mission], Informe Final [Final Report] 154 (2003) (Peru), available at http://www.cverdad.org.pe/ ifinal/pdf/TOMO%20VI/SECCION%20CUARTA-Crimenes%20y%20violaciones%20DDHH/ FINAL-AGOSTO/1.3.%20EJECUCIONES%20ARBITRARIAS.pdf ). 163 See Audrey Kurth Cronin, How al-Qaida Ends: The Decline and Demise of Terrorist Groups, Int’l Security, Summer 2006, at 7, 20 (arguing that the capture of Abimael Guzman led to the demise of Shining Path). 164 Burt, Quien habla, supra note 156, at 47–48. Colina was named after José Pablo Colina Gaige, a secret intelligence agent who had infiltrated PCP-SL and was killed in a “friendly fire” incident in 1984 by a state agent who had been ordered not to bring back detainees. Rúa, supra note 161, at 129. 165 Rúa, supra note 161, at 129. 166 Id. at 123. 167 Barrios Altos Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(a) (Mar. 14, 2001). It was eventually revealed that the trucks had belonged to Fujimori’s brother and the Vice-Minister of the Interior who later reported the trucks stolen. Rúa, supra note 161, at 127. 168 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(b); Rúa, supra note 161, at 125. 169 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(b); Rúa, supra note 161, at 125. Lisa J. Laplante 86 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 an anti-terrorism campaign.170 On November 27, 1991, the Peruvian Congress created a committee to investigate the Barrios Altos massacre, but its efforts were thwarted by Fujimori’s self-coup that dissolved Congress in April 1992.171 The issue of justice for Barrios Altos would not be revisited for another three years. The next notorious act attributed to Colina allegedly occurred as revenge for one of Lima’s worst acts of terrorism. On July 16, 1992, one hundred days after Fujimori’s self-coup, two young men pulled a car up to a plaza in the center of the urban town Miraflores, one of the upper class boroughs of Lima. A security guard shot at them as they fled the scene. Seconds later, the trucks they had been driving exploded, destroying the surrounding Tarata apartment building, killing twenty-two people and seriously injuring two hundred more.172 The next day, SIN received information that the fleeing culprits arrived bleeding at La Cantuta, formally known as the Universidad Enrique Guzmán y Valle.173 Already, Peruvian universities suffered great tension because they were suspected of serving as fee- ding ground for new PCP-SL recruits, and as a result military stations had been installed on many school grounds including La Cantuta.174 On the day after the Tarata bombing, Colina members arrived at La Cantuta in the early morning hours, passing with the permission of the soldiers guarding the front entrance.175 They barged into the dorms, pulled sleeping students from their beds, hit and threatened them, took some into the yard, and eventually loa- ded nine of them into their trucks.176 They also took Professor Hugo Muñoz-San- chez from his home in a hood, locking his wife and little boy in the bathroom.177 The nine students and Professor Muñoz-Sanchez were driven to a nearby arid stretch of land in the district of Cieneguilla called the “boca del diablo” (devil’s mouth),178 where they were executed by shots to the back of the head and then 170 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(d). 171 Id. ¶ 2(f). 172 Rúa, supra note 161, at 159. 173 Id. at 163. 174 The government had authorized the entry of the security forces to the universities through Decree-Law No. 726 of November 8, 1991. La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(10) (Nov. 29, 2006). The IACtHR referred to the Peruvian TRC’s account of this situation: “At the beginning of 1991, the local TV released a video of a political-cultural ceremony held at ‘La Cantuta’ University that allowed speculating about the level of control that ‘Sendero Luminoso’ (Shinning Path [sic]) had in the University. On May 21, 1991, former President Alberto Fujimori visited the university causing the violent reaction of students that forced him to leave the campus, humiliated. The following day, military troops took control of the Universidad Mayor de San Marcos and of ‘La Cantuta’ University, and 56 students were ar- rested. Among them there were three of the nine students that were subsequently subjected to extra-legal execution.” Id. (quoting 7 Comisión de la Verdad y Reconciliacion [Truth & Recon- ciliation Commission], supra note 162, at 234, available at http://www.cverdad.org.pe/ifinal/pdf/ TOMO%20VII/Casos%20Ilustrativos-UIE/2.22.%20LA%20CANTUTA.pdf). 175 See La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(12). 176 The abducted students were: Juan Mariños-Figueroa, Bertila Lozano-Torres, Roberto Teo- doro-Espinoza, Marcelino Rosales-Cárdenas, Felipe Flores-Chipana, Luis Enrique Ortiz-Perea, Armando Amaro-Cóndor, Heráclides Pablo-Meza, and Dora Oyague-Fierro. Id. ¶ 80(15). 177 Rúa, supra note 161, at 18. 178 Id. Outlawing amnesty: the return of criminal justice ... 87EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 buried.179 Some days later, Colina agents returned to burn and rebury the bodies in a new common grave in Huachipa.180 Over the following days and weeks, the families of the nine missing stu- dents and one professor began to learn of the event through friends, family, and newspaper headlines, starting a search for justice that continues today.181 The families visited police stations, military barracks, and local municipalities, all of which denied knowledge of the events at La Cantuta. Antonia Pérez-Velásquez de Muñoz, wife of Hugo Muñoz-Sanchez, said it was as if “he had vanished off the face of the earth.”182 They were not deterred by death threats or the resistance of people who suspected their loved ones of being terrorists.183 The families, as well as the dean of La Cantuta, eventually filed three habeas corpus petitions, all of which were dismissed as groundless. The military, including Luis Salazar-Monroe and General Nicolás de Bari Hermoza-Ríos, denied knowledge of the attack and refused to provide information citing “national security reasons.”184 The families also filed criminal complaints in July and August of 1992.185 On April 2, 1993, while the families unsuccessfully sought a legal remedy, Henry Pease-García, a progressive Peruvian Congressman, received an anonymous document from an army faction calling itself the “León Dormido” (Sleeping Lion) identifying the masterminds of the La Cantuta disappearances.186 A congressional committee was formed to further investigate the case, but it faced considerable obs- tacles, including the military’s refusal to testify. Even when General Hermoza-Ríos eventually appeared before the committee on April 20, 1993, he denied that the army participated in the disappearances and, upon leaving, read a statement to the press accusing the congressional members of working “in collusion with the terrorists” and participating in “the orchestration of a well-thought and planned campaign to impair the prestige and honor of the Peruvian Army.”187 The next day, military tanks circulated throughout the capital city of Lima and stationed near the Congress buil- ding. General Hermoza-Ríos issued more statements regarding the “false” accusations constituting a systematic campaign to undermine the military’s ability to fight terro- rism and forbade any officer from cooperating with the committee.188 In May 1993, Peruvian General Rodolfo Robles Espinoza, Commander General of the Third Military Region, publicly declared that he had reliable in- 179 Id. at 169–74. 180 See La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶¶ 80(16), (31). 181 See id. ¶¶ 60(a)–(g), 61 (providing the testimonies of next of kin). 182 Id. ¶ 61(c). 183 See id. ¶ 60. 184 Id. ¶ 80(20)(ii)–(iii); see also Rúa, supra note 161, at 185–86. 185 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(20). Antonia Pérez-Velásquez de Muñoz reported the disappearance of her husband to the Provincial Criminal Prosecutor´s Office of the Tenth Prosecutor´s Office on July 21, 1992. Id. ¶ 80(21). 186 Id. ¶ 80(25). 187 Id. ¶ 80(27); see also Rúa, supra note 161, at 205. 188 This military stand off finally came to a halt through international pressures, and Defense Minister Víctor Malca eventually brought the bravado display to a halt, but by then General Hermoza-Ríos had ordered a freeze on any testimony before the congressional committee. Rúa, supra note 161, at 206–12. Lisa J. Laplante 88 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 formation that Colina was responsible for the La Cantuta murders, an act that forced him to go into exile in Argentina after thirty-seven years of service.189 Soon after, in July 1993, journalists of the local newspaper Sí received a hand-drawn map that claimed to point to the buried bodies of the La Cantuta victims and a note that provided minute details of the clandestine graves.190 This clue led to the discovery of the hidden graves and, under the supervision of prosecutor Victor Cubas-Villanueva, the recovery of burned bones and clothing, all recognized by the next of kin in attendance.191 Keys were also found which opened the dormi- tory locker of one of the murdered students and the front door of another. This breakthrough led Congresswomen Gloria Helfer, who also worked on the special congressional committee, to remark: “The dead are talking, and they are saying the perpetrators are free and they are demanding justice.”192 4.3 The pressure to prosecute and the battle of jurisdiction In the quest to obtain justice through the courts, the families and their allies found the jurisdictional conflict between ordinary civilian criminal courts and military courts to be their greatest obstacle. For example, the Peruvian At- torney General ordered prosecutors to begin investigations into the murders on August 6, 1992.193 The prosecutor’s office declined jurisdiction, however, because the same facts were already being reviewed by the War Chamber of the Supreme Council of Military Justice (SCMJ), a decision eventually affirmed on appeal.194 Other ongoing challenges included reluctant or uncooperative civil judges and the political harassment and replacement of prosecutors.195 The military investigation opened in April 1993, but did not progress until the discovery of the clandestine graves, at which point the SCMJ Investigation Board admitted the complaint filed by the War Chamber Prosecutor.196 Rightly suspecting that the military’s co-option of the criminal investi- gations was a subterfuge to halt justice, the families persisted with their civil claims. On December 15, 1993, they filed criminal complaints against Retired Army Captain Montesinos and Generals Hermoza-Ríos, Luis Pérez-Documet, Ju- 189 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(17); Rúa, supra note 161, at 211–12. 190 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(30); Rúa, supra note 161, at 228. 191 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶¶ 80(30)–(31). 192 Rúa, supra note 161, at 238 (author’s translation). 193 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(23). 194 Id. ¶ 80(23). 195 See id. ¶ 136; Rúa, supra note 161, at 239. 196 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(44). “On July 7, 1993, in Case No. 157-V-93, the SCMJ Investigation Board extended inquiry proceedings against Brigade General Juan Rivero-Lazo, Cavalry Colonel Federico Augusto Navarro-Pérez, Maj. Santiago En- rique Martín-Rivas, Maj. Carlos Pichilingüe-Guevara and Lt. Aquilino Portella-Nuñez and José Adolfo Velarde-Astete, on the grounds of the alleged commission of abuse of authority and crimes against life, body and health. On December 13, 1993, inquiry proceedings were extended against Infantry Lt. José Adolfo Valarde-Astete ‘to be held responsible for’ the offense of negli- gence . . . .” Id. ¶ 80(43). Outlawing amnesty: the return of criminal justice ... 89EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 lio Salazar-Monroe, and Juan Rivero-Lazo as the masterminds of the La Cantuta crimes.197 The same prosecutor who oversaw the exhumations of the clandestine graves, Cubas-Villanueva, also filed a criminal complaint, which included officers named in the SCMJ investigation, with a court in Lima on December 16, 1993.198 The Lima court started proceedings the next day. The SCMJ then immediately challenged the ordinary court’s jurisdiction.199 But for international pressure, the search for justice may have continued in this endless circle. The international community, however, made La Cantuta a cause célèbre and posed it as the final test of Fujimori’s pledge of democracy and human rights after his self-coup.200 Rising to the occasion made sense for Fujimori given his upcoming bid for reelection and his political need to unfreeze millions of dollars in U.S. aid, which was conditioned on “a satisfactory resolution” of the La Cantuta case.201 As would be later revealed later, he selected a group of officers to stand trial with the promise that they would later be pardoned and handsomely compensated for their sacrifice.202 But the jurisdiction question still awaited final resolution. In the new quest to showcase justice, the administration pushed for a conclusion. The Criminal Chamber of the Peruvian Supreme Court issued a de- cision on the matter on February 3, 1994, but the decision was divided with two justices supporting the ordinary court jurisdiction and the other three supporting the military courts.203 A vote of at least four was needed to approve jurisdiction. In quick response, the Fujimori-backed Congress presented a bill on Febru- ary 8, 1994, proposing that a conflict of jurisdiction issue be resolved by simple majority and secret ballot. The law was designed to be retroactive, thus allowing the previous three affirmative votes to count. The bill was approved the same day and signed into law by Fujimori the next day.204 With the issue of jurisdiction now settled, the military trials proceeded on February 11, 1994.205 The trials resulted in acquittals for some of the defendants on the more serious charges.206 Five offi- cers, however, were convicted on several major counts, including forced disappea- rances, and received prison terms of fifteen to twenty years.207 On May 3, 1994, the SCMJ affirmed the decision.208 The SCMJ War Chambers started proceedings against the alleged “intellectual perpetrators” of La Cantuta, including Army Ge- 197 Id. ¶ 80(45). 198 Id. ¶¶ 80(46)–(47). Cubas-Villanueva soon encountered threats as well as attempts by the same judiciary trying to undermine him with fabricated disciplinary charges. See id. ¶ 80(49). 199 Id. ¶ 80(48). 200 See James Brooke, Army Officers’ Trials to Test Democracy in Peru, N.Y. Times, Jan. 12, 1994, at A3. 201 Id. Rúa reports that the trials were first announced in the New York Times and not local news- papers, evidencing their intent to please an international audience. Rúa, supra note 161, at 242. 202 7 Comisión de la Verdad y Reconciliacion [Truth & Reconciliation Commission], supra note 162, at 241–43, available at http://www.cverdad.org.pe/ifinal/pdf/TOMO%20VII/Casos%20 Ilustrativos-UIE/2.22.%20LA%20CANTUTA.pdf; Ernesto Chávez, Grupo Colina Amenaza y Fu- jimori los Amnistía, Crónica Viva (Oct. 3, 2007) (Peru), at http://www.cronicaviva.com.pe/index. php?option=com_content&task=view&id=18976&Itemid=86. 203 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(50). 204 Id. ¶ 80(51) (discussing Law No. 26,291). 205 Id. ¶ 80(52). 206 See id. ¶ 80(54)(a)–(j). 207 See id. ¶ 80(54)(i)–(j). 208 See id. ¶ 80(55). Lisa J. Laplante 90 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 neral Hermoza-Ríos, Brigade Army General Pérez-Documet, and Retired Army Captain Montesinos, on the grounds they committed serious crimes, including forced disappearance, but ultimately decided to dismiss the case on August 15, 1994.209 The SCMJ Review Chamber affirmed this decision on August 18, 1994, and closed the case permanently for lack of evidence.210 Fujimori’s hope that these convictions would persuade critics that justice had been done was not borne out. As foreshadowed by Lourdes Flores, an oppo- sitional member of Congress: “This process is not going to be considered closed because the competence of the military courts was defined through an unconsti- tutional law. Therefore, when democracy is fully recovered, it is very probable that either the Supreme Court or even political pressure will reopen this case.”211 Her prediction would come true, although not for another six years, and only after Fujimori managed to erode further the rule of law. 4.4 A new presidential term and amnesty laws Fujimori won reelection by a landslide in April 1995 despite accusations of corruption.212 Having seemingly laid to rest the scandal surrounding Colina and securing his continuation in office, Fujimori appeared to have guaranteed impu- nity. Any complacency, however, would soon be challenged by public prosecutor Ana Cecilia Magallanes, who opened criminal investigations in April 1995 against five army officials, including General Julio Salazar-Monroe, the head of the Na- tional Intelligence Service, for the massacre at Barrios Altos,213 Judge Antonia Saquicuray of the Sixteenth Criminal Court of Lima initiated a formal investiga- tion on April 19, 1995, yet when she tried to summon the accused to take their statements, the SCMJ issued a resolution barring her request because it conflicted with the SCMJ’s jurisdiction.214 Regardless, Judge Saquicuray pursued the investi- gation, and the military court filed a petition before the Supreme Court to resolve the jurisdictional issue. 215 The Supreme Court never had a chance to deliberate on the issue, ho- wever, because Congress adopted Law No. 26,479 (the “Amnesty Law”) in the early morning hours of June 14, 1995.216 The next day the president immediately promulgated the law.217 The law granted amnesty to “all members of the security 209 Id. ¶ 80(57). The military court did not accept the argument that the officers acted with the approval of high command. Rúa, supra note 161, at 264–65. 210 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(57). 211 Nathaniel C. Nash, 9 Peruvian Military Men Are Sentenced in Killings, N.Y. Times, Feb. 22, 1994, at A6. 212 See Conaghan, supra note 152, at 96–99 (describing the 1995 Peruvian elections). See generally Gregory D. Schmidt, Delegative Democracy in Peru? Fujimori’s 1995 Landslide and the Prospects for 2000, 42 J. Interam. Stud. & World Aff. 99 (2000). 213 Barrios Altos Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(g) (Mar. 14, 2001). 214 Id. ¶ 2(h). 215 Id. ¶ 2(i). 216 Id. The law was passed without committee review or debate. See id. See generally Burke-White, supra note 75, at 485–89 (discussing the Peruvian amnesty law and legal challenges). 217 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(i). Outlawing amnesty: the return of criminal justice ... 91EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 forces and civilians who had been accused, investigated, prosecuted or convicted, or who were carrying out prison sentences, for human rights violations.”218 The practical result was that the La Cantuta convictions were immediately annulled, the eight detained members of Colina were released, and all other human rights investigations, including the Barrios Altos case, were barred.219 Despite this abso- lute ban on criminal investigations, Judge Saquicuray decided the next day that Article 1 of Law No. 26,479 was not applicable to Barrios Altos because it viola- ted the Constitution and Peru’s obligations under the American Convention.220 The defense lawyers for the accused in Barrios Altos appealed.221 The Eleventh Criminal Chamber of the Lima Superior Court scheduled a hearing to review the law on July 3, 1995, but before the hearing could take place Congress adopted a second amnesty law which barred judicial review of Law No. 26,479 and made its application obligatory.222 The law also extended immunity to all military, police, or civilian officials who might be the subject of indictments for human rights violations committed between 1980 and 1995.223 In an about turn, the Eleventh Criminal Chamber of the Lima Superior Court overturned the lower court’s deci- sion that the first amnesty law was unconstitutional and quashed the Barrios Altos investigation on July 14, 1995.224 It also declared that the court was barred from reviewing the law due to the principle of separation of powers and ordered an investigation of Judge Saquicuray.225 Eventually, the Tribunal Constitucional, Peru’s highest court, suggested in a 1997 opinion that the amnesty laws were unconsti- tutional, but in subservience to the authoritarian regime avoided issuing a final sentence on the matter and declared that it lacked jurisdiction to hear the merits given that the second amnesty law barred judicial review.226 On July 28, 1995, when Fujimori was sworn into office for the second time, he asked for a minute of silence for all the victims, and then addressed the nation: “We must pacify our hearts, and forget the past and honor the memory of all of our dece- ased, because all of us, right or wrong, are Peruvians! The amnesty law is necessary to build peace, and so Peruvians must not look back but instead to the future.”227 218 Id. 219 See id.; La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶¶ 80(59)–(60) (Nov. 29, 2006). 220 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2(k). The Peruvian Constitution requires judges not to apply “those laws that they consider contrary to the provisions of the Constitution.” Id. 221 Id. ¶ 2(l). 222 Id. ¶ 2(m). 223 Id. 224 Id. ¶ 2(n). 225 Id; see also Susana Villarán de la Puente, Peru, in Victims Unsilenced: The Inter-American Hu- man Rights System and Transitional Justice in Latin America, supra note 39, at 116 (providing the author’s first-hand account of the court decision). 226 See Constitutional Court, Exp. No. 013-96-I/TC (Apr. 18 1997) (Peru); see also Roht-Arriaza & Gibson, supra note 31, at 878–79 (discussing the Peruvian Supreme Court’s rationale of “separation of powers” in declining jurisdiction). 227 Rúa, supra note 161, at 280. Lisa J. Laplante 92 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 4.5 The inter-american system of human rights and fujimori’s downfall Those who suffered under Fujimori’s regime were not ready to forget the experience so easily. Faced with domestic judicial remedies that were wholly ina- dequate, the victim-survivors began to take their claims to the IACHR with the help of human rights defenders. The human rights lawyers of the National Co- ordinator of Human Rights filed a petition against the government on June 30, 1995, for the issuance of the amnesty laws that obstructed a full and fair criminal investigation and trial of those responsible for the Barrios Altos massacre.228 At that time, a petition for the La Cantuta massacre was already pending with the IACHR pursuant to a filing made on July 30, 1992, by Gisela Ortiz-Perea, Rosario Muñoz-Sánchez, Raida Cóndor, José Oyague, and Bitalia Barrueta de Pablo based on the same concern regarding the futility of internal remedies.229 Indeed, a steady stream of petitions from Peruvians caught in Fujimori’s Machiavellian web began to flow through the doors of the IACHR, especially as local human rights organizations began to use this international forum to advance their local struggle.230 The IACHR, in turn, began to present the most emblema- tic of these cases to the contentious jurisdiction of the IACtHR.231 Soon after Fujimori’s second election, the IACtHR issued landmark decisions concerning many of the abusive trademarks of Fujimori’s regime, including forced disappe- arances, prison massacres, and the arbitrary and unjust imprisonment of people under the state’s antiterrorist legislation.232 Fujimori’s government came under heightened scrutiny as the decisions sig- naled a clear condemnation of its policies and practices for failing to uphold the American Convention. As already noted, Fujimori’s government worried about the international community’s opinion, in particular that of the United States, and thus it could not so easily ignore the international court. Peru thus began to adhere reluctantly and only partially to the Court’s orders. After the Court began directly to question the government’s national security laws, however, Fujimori 228 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 4. The IACHR registered the case as No. 11.528 on August 28, 1995, and requested information from the state within ninety days. Subsequent petitions were submitted on behalf of the victims and next of kin over the following year, all of which were joined to the original petition. See id. ¶¶ 4–10. 229 See La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 5 (Nov. 29, 2006). The case was registered as No. 11.045 by the IACHR. Eventually other petitions filed by the human rights organization, Asociación Pro Derechos Humanos, would be joined to it, and a session on the admissibility of the case occurred on March 11, 1999. Id. ¶¶ 5–8. 230 For a fuller account of this history, see generally Laplante, supra note 149. 231 The Inter-American Commission filters cases to the Inter-American Court. Applicants do not have the right to bring a case directly to the IACtHR under the American Convention. See Pasqualucci, supra note 107, at 360–61. 232 See, e.g., Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68 (Aug. 16, 2000) (concerning the prison massacre at El Frontón); Cesti-Hurtado Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 56 (Sept. 29, 1999); Castillo-Páez Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 34 (Nov. 3, 1997) (concerning the forced disappearance of a university student); Loayza-Tamayo Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 33 (Sept. 17, 1997) (dealing with arbitrary impris- onment and torture under antiterrorism law). Outlawing amnesty: the return of criminal justice ... 93EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 withdrew from the Court’s jurisdiction in July 1999, a decision declared invalid by the Court.233 This defiant act put Peru under greater international scrutiny and contributed to the cascade of events that would cause Fujimori’s downfall shortly after his fraudulent 2000 reelection.234 5 A new paradigm: peru’s political transition without amnesty Soon after the 2000 Peruvian elections, Fujimori’s regime came to an abrupt end due to corruption scandals. Hundreds of videos were uncovered show- ing Montesinos bribing the country’s powerful elites (including those in media, business, and military), forcing Fujimori to call for new elections in which he pledged not to run.235 In November 2000, before those elections took place, Fu- jimori travelled to Japan, faxed his resignation, and proceeded to take refuge for five years despite Peru’s efforts to extradite him to stand trial for his abuses.236 In this sudden political clearing, Peru initiated a process of transitional justice to address the human and institutional damage caused by the conflict. In the same month that Fujimori became a fugitive, the transitional govern- ment led by Valentín Paniagua sought to legitimize itself by mending relations with the Inter-American System.237 The government began a massive sweep to prosecute the individuals caught in Montesinos and Fujimori’s intricate corruption scheme, and, as part of this new intiative, brought charges against the Supreme Court jus- tices who dismissed the La Cantuta case for personal cover up and criminal asso- ciation.238 Peru rejoined the contentious jurisdiction of the IACtHR and began to 233 See Morse Tan, Member State Compliance with the Judgments of the Inter-American Court of Human Rights, 33 Int’l J. Legal Info. 319, 322–25 (2005) (describing Fujimori’s attempt to withdraw from the IACtHR). For the Court’s rejection of this withdrawal, see also Ivcher-Bronstein Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 54 (Sept. 24, 1999). 234 The legitimacy of Fujimori’s 2000 reelection was questioned even more so than his first reelection in 1995. In order to run for a third term, Fujimori solicited Congress to issue an inter- pretation of the Peruvian Constitution that permitted a third term. The climate of the elections also included political repression which led to condemnation from international observers sent from the OAS. See Press Release, Inter-American Commission on Human Rights, Report by the IACHR on the Situation of Human Rights in Peru (June 4, 2000), at http://www.cidh.oas.org/ Comunicados/English/2000/Press6-00.htm. See generally Andrew F. Cooper & Thomas Legler, The OAS in Peru: A Model for the Future?, 12 J. Democracy 123 (2001) (providing a comprehen- sive narrative of the 2000 elections and discussing its legal flaws). For international press cover- age, see, for example, Andres Oppenheimer, Watchdog Group May Condemn Peru Election, Miami Herald, Mar. 25, 2000, at A3. 235 See generally John McMillan & Pablo Zoido, How to Subvert Democracy: Montesinos in Peru, 18 J. Econ. Persp. 69 (2004) (describing the events, including the secret videos, that led to Fujimori’s downfall). 236 John R. Hamilton, The Fall of Fujimori: A Diplomat’s Perspective, 30 Fletcher Foreign World Aff. 191, 191 (2006). 237 Laplante, supra note 149, at 222. 238 La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶¶ 80(71)–(74) (Nov. 29, 2006). For a general discussion of the corruption trials, see Nelly Calderón Navarro, Fighting Corruption: The Peruvian Experience, 4 J. Int’l Crim. Just. 488 (2006) (describing the special criminal court created to try hundreds of Peruvians on charges of corruption). Lisa J. Laplante 94 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 comply with its previous judgments.239 In February 2001, Peru sought to resolve a great number of the cases still being processed by the IACHR, including La Cantuta, through a “friendly settlement,” in which the state promised not only to pay repara- tions to the victims and next of kin, but also to initiate investigations.240 The tran- sitional government realized that, in addition to these cases, there were thousands more that could lead to new petitions. It thus sought a more comprehensive and administrative means of addressing them, namely by way of a truth commission. In December 2001, the transitional government created the Inter-Institu- tional Working Group, which ultimately led to the establishment of the TRC.241 The Inter-Institutional Working Group envisioned that the TRC would address “events attributable to State agents, events attributable to individuals who acted with State agents’ consent, acquiescence or connivance, as well as those events that are attributable to subversive groups,” a focus eventually included in the mandate approved by executive decree.242 In committing to criminal justice, how- ever, the transitional government faced the immediate challenge of Fujimori’s 1995 amnesty laws. If future prosecution remained impossible, the TRC might fail to meet the expectations of victims. Moreover, if the amnesty laws forbade all types of investigation, the TRC’s investigations could also be thwarted by Fujimori’s supporters and the military because they still enjoyed substantial po- wer. Aware that a domestic solution would be not be feasible in the short term, Peru looked to the Inter-American System for a resolution. 239 Resolución Legislativa No. 27,401, Diario Oficial El Peruano No. 197,465 (Jan. 19, 2001) (Peru) (abrogating Legislative Resolution No. 27,152). 240 A friendly settlement is an agreement between the parties to settle the case with- out the Court deciding on its merits. Peru agreed to settle more than 165 cases, represent- ing over half of its total cases then before the IACHR. See Joint Press Release, Inter-Amer- ican Commission on Human Rights, Meeting with Representatives of the Government of Peru (Feb. 22, 2001), at http://www.cidh.org/Comunicados/English/2001/Peru.htm; Org. of Am. States, Report of the Permanent Council on the Observations and Recommendations of the Member States on the 2001 Annual Report of The Inter-American Commission on Human Rights, OEA/Ser.G/CP/Doc.3612/02, at 21–22 (May 23, 2002), available at http://scm.oas.org/ doc_public/ENGLISH/HIST_02/CP09961E07.DOC. See generally Patricia E. Standaert, The Friendly Settlement of Human Rights Abuses in the Americas, 9 Duke J. Comp. & Int’l L. 519 (1999) (providing an explanation of the “friendly settlement” mechanism). 241 Participating in the deliberations were the Ministries of Justice, Interior, Defense, Pro- motion of Women and Human Development, as well as the People’s Ombudsman, the Pe- ruvian Episcopal Conference, the Peruvian Evangelist Association, and the National Hu- man Rights Coordinating Committee. See 1 Comisión de la Verdad y Reconciliacion [Truth & Reconciliation Commission], supra note 162, at 22, available at http://www.cverdad.org.pe/ ifinal/pdf/TOMO%20I/INTRODUCCION.pdf. 242 Id. at 23 (“[T]anto los hechos imputables a agentes del Estado, a las personas que actuaron bajo su consentimiento, aquiescencia o complicidad, así como los imputables a los grupos sub- versives.”) (author’s translation). The crimes to be investigated included: (a) murder and abduc- tion; (b) forced disappearance; (c) torture and other severe injuries; (d) violation of collective rights of Andean Communities and Communities native to the country; and (e) other crimes and severe violations of the rights of persons. 1 Comisión de la Verdad y Reconciliacion [Truth & Reconciliation Commission], supra note 162, at 195, available at http://www.cverdad.org.pe/ ifinal (follow “Capítulo 4: La dimensión jurídica de los hechos” hyperlink under “Tomo I”). Outlawing amnesty: the return of criminal justice ... 95EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 5.1 Where the international meets the national Recalling the failed attempt to defeat amnesty laws in South Africa, John Dugard points out that where national legal remedies proved inadequate, hu- man rights advocates in South Africa did not have recourse to international legal bodies in the way their counterparts in Latin America did as a result of those countries’ membership in the Inter-American System.243 Indeed, despite the state practice in Latin America of implementing amnesties, the Inter-American System consistently condemned this trend.244 Before the fall of Fujimori’s regime, the IACHR had an opportunity to deliberate on the Barrios Altos case and evidenced its consistent condemnation of amnesties. It adopted Report No. 28/00 after Peru failed to reach a friendly settlement, recommending that the state annul any domestic, legislative or any other measure aimed at pre- venting the investigation, prosecution and punishment of those re- sponsible for the assassinations and injuries resulting from the events known as the “Barrios Altos” operation. To this end, the State of Peru should abrogate Amnesty Laws Nos. 26,479 and 26,492.245 It further recommended that the state conduct a serious, impartial and effective investigation into the facts, in order to identify those responsible for the assassinations and injuries in this case, and continue with the judicial prosecu- tion of Julio Salazar Monroe, Santiago Martín Rivas, Nelson Car- bajal García, Juan Sosa Saavedra and Hugo Coral Goycochea, and punish those responsible for these grave crimes, through the cor- responding criminal procedure, in accordance with the law.246 Peru, however, refused to follow the recommendations and explained in a communication on May 9, 2000, that the amnesty laws were exceptional me- asures in response to terrorist violence, relying on the Peruvian Constitutional Court’s ruling.247 With no other recourse, the IACHR decided to submit the case to the IACtHR on May 10, 2000, despite Peru’s alleged withdrawal from the Court’s contentious jurisdiction.248 In response to the Court’s proceedings, repre- 243 See Dugard, supra note 60, at 282–85. 244 See generally Cassel, supra note 115 (describing the OAS’s reaction to amnesties in Latin American countries); Robert Kogod Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, 6 Law Group Docket, Summer 1989, at 1; Robert K. Goldman, Uruguay: Amnesty Law in Violation of Human Rights Convention, 49 Rev. Int’l Commission Jurists 37 (1992). 245 Barrios Altos Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 17 (Mar. 14, 2001) (quoting Chumbipuma Aguirre et al. v. Peru, Cases 11.528, 11.601, Inter-Am. C.H.R., Report No. 28/00, OEA/Ser./L/V/II.111, doc. 20 rev. (2000)). 246 Id. (quoting Chumbipuma Aguirre et al. v. Peru, Cases 11.528, 11.601, Inter-Am. C.H.R., Report No. 28/00, OEA/Ser./L/V/II.111, doc. 20 rev. (2000)). 247 Id. ¶ 18. 248 See id. ¶ 19. Lisa J. Laplante 96 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 sentatives of the Peruvian Embassy in Costa Rica communicated with the Court’s Secretariat on August 24, 2000, reminding the Court of Peru’s withdrawal.249 Peru concluded that the immediate effect of this withdrawal upon deposit was that the IACtHR no longer had competence to hear an application against Peru due to lack of jurisdiction.250 The Court responded by reminding Peru that the Court had already rejected the withdrawal in the Ivcher Bronstein and Consti- tutional Court cases,251 and that in its opinion the “attitude of the State of Peru constitutes a clear failure to comply with Article 68(1) of the Convention, and also a violation of the basic principle pacta sunt servanda.” 252 The case remained in limbo until Fujimori’s regime fell, and Peru reinstated its recognition of the Court’s contentious jurisdiction on January 23, 2001. This permitted the Barrios Altos case, and others, to go forward. In fact, with the time pressure of the TRC’s pending formation, the Peruvian government sought to expedite the case and persuaded the Inter-American Commission to press the Court to speed its deci- sion despite its fears that the IACtHR might depart from the Commission’s own evolving jurisprudence against amnesties.253 5.2 The barrios altos decision The IACtHR convened a public hearing on March 14, 2001 to hear the merits of the Barrios Altos case, during which Peru explained: [T]he Government’s strategy in the area of human rights is based on recognizing responsibilities, but, above all, on proposing in- tegrated procedures for attending to the victims based on three fundamental elements: the right to truth, the right to justice and the right to obtain fair reparation. […] […] [With regard to the] Barrios Altos case […] substantial mea- sures have been taken to ensure that criminal justice will make a prompt decision on this case. However, we are faced with […] an obstacle […] we refer to the amnesty laws. The amnesty laws […] directly entailed a violation of the right of all victims to obtain not only justice but also truth. . . . Consequently, the Govern- ment of Peru has suggested to the original petitioners, that is, the National Human Rights Coordinator, the possibility of advancing with friendly settlements, which entail effective solutions to this procedural obstacle […]254 249 Id. ¶ 25. 250 Id. 251 Id. ¶ 27; see also Ivcher-Bronstein Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 54 (Sept. 24, 1999); Constitutional Court Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 55 (Sept. 24, 1999). 252 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 27 (citations omitted). 253 See id. ¶ 35. For a fuller account of this history see Laplante, supra note 149, at 222–23. (de- scribing the Peruvian government’s strategy in approaching the IACtHR). 254 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 35. Outlawing amnesty: the return of criminal justice ... 97EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Peru, then, set the tone of its transitional justice project to include criminal justice. It proposed, among other things, a “preliminary agenda” based on the following three points: “identification of mechanisms to fully clarify the facts on which the petition was based, including identification of the masterminds and perpetrators of the crime, the viability of criminal and administrative punish- ments for all those found responsible, and specific proposals and agreements on matters relating to reparations.”255 The state, perhaps betraying its own newfound eagerness to annul the pre- vious government’s “mechanisms of impunity,” suggested “the parties should re- quest the Inter-American Court to deliver the judgment on the merits immedia- tely, establishing the international responsibility as determined by the Court and taking into account the brief on acquiescence that had been submitted.”256 The IACHR, in turn, emphasized that the Court had a special opportunity, a truly historic opportunity, to advance inter- national human rights law, based on measures under domestic law that contribute to combat impunity, which is one of the evils of our hemisphere, to which this Court and . . . the Commission have ac- corded fundamental importance. I believe that this attitude of the Government of Peru gives us the opportunity to associate ourselves with the people of Peru, their Government and their civil society, to find creative solutions, which may subsequently be emulated and imitated throughout the hemisphere and beyond it.257 The Commission continued by pointing out that the case is “very serious and very sad,” because not only did the state act “unlawfully and clandestine- ly,” but it also deliberately imposed “legislative and judicial mechanisms to pre- vent the facts [surrounding the gruesome events at Barrios Altos] from being known.”258 With the fortuitous change of conditions, the Commission characte- rized the circumstances as “ripe” for an international pronouncement that would provide Peru with an instrument “to destroy and remove the remaining obstacles in order to combat impunity in Peru.”259 One could sense the earnest desire of the IACHR to have the Court back the Commission’s own growing jurisprudence on the issue, that did not enjoy the same binding effect as decisions of the Court. The gamble paid off, though, and that same day the Court issued its judgment stating that the self-amnesty laws were invalid.260 The decision came a mere month before Peru’s transitional gover- nment concluded its negotiations regarding the TRC’s mandate. 255 Id. 256 Id. 257 Id. ¶ 36. 258 Id. 259 Id. 260 Id. ¶¶ 43–44. Lisa J. Laplante 98 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 5.3 The iacthr’s ruling and interpretation The IACtHR did not have much to deliberate on after the state acquiesced to the claims of the petitioners, which meant the Court, pursuant to Article 52(2), only needed to decide the acceptability of this admission of responsibility.261 It began with the question of whether Peru’s amnesty laws were compatible with the American Convention on Human Rights, and concluded with the now frequently cited opinion: This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to elimi- nate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, sum- mary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.262 The Court explained that the amnesty laws prevented survivors and vic- tims’ families from exercising their right to be heard by a judge, to receive judicial protection, and to obtain the investigation, capture, prosecution, and conviction of those responsible for the violations, as protected by Articles 8(1), 25, and 1(1) of the American Convention respectively.263 It further held that those rights should be read together with Articles 1(1) and 2 of the American Convention, which oblige State Parties to “take all measures to ensure that no one is depri- ved of judicial protection and the exercise of the right to a simple and effective recourse . . . .”264 Furthermore, the Court clarified that the amnesty laws also con- travene the obligation to adapt internal legislation to international human rights obligations, as embodied in Article 2 of the American Convention.265 In this way, the Court held that “[s]elf-amnesty laws . . . are manifestly incompatible with the aims and spirit of the Convention . . . because [this type of law] obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation.”266 The laws thus “lack legal effect.”267 The Court turned lastly to the right to truth. The Court agreed with the IACHR that the right to truth is based on Articles 8 and 25 of the Convention: [T]he right to the truth is subsumed in the right of the victim or his next of kin to obtain clarification of the events that violated human rights and the corresponding responsibilities from the competent 261 Id. ¶ 37. 262 Id. ¶ 41. 263 Id. ¶ 42. 264 Id. ¶ 43. 265 See id. 266 Id. ¶ 43. 267 Id. ¶ 44. Outlawing amnesty: the return of criminal justice ... 99EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 organs of the State, through the investigation and prosecution that are established in Articles 8 and 25 of the Convention.268 The IACHR had also argued that the right to truth was supported by Arti- cle 13(1), which provides the right to information, but the Court rested its opi- nion solely on Articles 8 and 25.269 Arguably, the Court’s ruling contributes to the idea that truth and justice are not incompatible, but on the contrary inextricably linked. Its decision stands for the proposition that in a transitional justice fra- mework, prosecutions become another indispensable tool for reaching the truth, a task formerly delegated to truth commissions alone. While the Barrios Altos decision signaled a clear victory for both the tran- sitional government and the IACHR, it was unclear whether the decision offered a general pronouncement or was only specific to the investigation in the Barrios Altos case. Several months after the decision, the IACHR, at the request of Peru, filed for a clarification of the “meaning and scope” of operative paragraph 4 of the Barrios Altos judgment in which the Court declared that “Amnesty Laws No. 26479 and No. 26492 are incompatible with the American Convention on Hu- man Rights and, consequently, lack legal effect.”270 The resulting interpretation confirmed that “the effects of the decision in the judgment on the merits of the Barrios Altos Cases are general in nature.”271 The Court issued its judgment on September 3, 2001, just days before the TRC was scheduled to open its doors for operation, thus providing the TRC a green light not only to initiate its own in- vestigations, but also to collaborate with the Attorney General’s office in bringing charges against specific perpetrators.272 6 Interpreting barrios altos: a bar to amnesty for human rights violations Curiously, despite its potentially sweeping effect on the legitimacy of am- nesties in political transitions, the IACtHR’s Barrios Altos decision has thus far 268 Id. ¶¶ 45–48. 269 Id. 270 Barrios Altos Case, Interpretation of the Judgment of the Merits, 2002 Inter-Am. Ct. H.R. (ser. C) No. 83, ¶¶ 8, 16 (Sept. 3, 2001). 271 Id. ¶ 18. The IACHR, in its arguments on the matter, rightly pointed out that the Court already made this clear in paragraph 44 of its decision on the merits. Id. ¶ 14. There, the Court had pronounced: “Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punish- ment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated.” Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 44. The request for clarification may thus seem odd, except it could be understood as a desire to preempt any future debate on the matter. Arguably, it also permitted the Court to suggest that any amnesty law would be found incompatible, as is discussed in this Section. 272 In its final report, the TRC acknowledged the important precedent established by the Court. See Hatun Willakuy, Versión Abreviada del Informe Final de la Comisión de la Verdad y Rec- onciliación [Summary version of the Final Report of the Truth & Reconciliation Commission] 31–32 (2003) (Peru). Lisa J. Laplante 100 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 received scant attention from academics, whether from the field of transitional justice or international criminal law. This Part describes the ways in which the Barrios Altos decision has so far been narrowly interpreted and responds with a counteranalysis, including an examination of subsequent IACtHR decisions, whi- ch suggests a much broader reading of this landmark decision. In particular, this Part argues that Barrios Altos: (1) applies to all amnesties and not just self-amnes- ties; (2) requires that criminal investigations not be substituted for other types of noncriminal investigations; and (3) applies to all serious human rights violations and not only crimes against humanity. 6.1 Not limited only to self-amnesty laws One reason for the narrow reading of the Barrios Altos decision may relate to the possible interpretation of the holding as applying only to “self-amnesties.”273 A strict reading of the word “self ” would imply that the Court’s ruling applies only to those laws adopted by the same government seeking immunity from criminal prosecution. This narrow interpretation would mean that amnesties promulgated by subsequent governments, especially if part of an internal peace negotiation process or transitional justice scheme, would be permissible. In addition, it would support the restorative justice view of the truth v. justice debate, which argues that alterna- tive investigatory methods such as truth commissions fulfill the state’s obligation to “ensure” a victim’s human right to justice. Scharf adopted this position in 1996, prior to the 2001 Barrios Altos decision, but nevertheless set the distinction between “self ” and all other amnesties that would later be applied to Barrios Altos.274 A close reading of both the Judgment on the Merits and the subsequent Interpretation of the Judgment, however, suggests a much broader interpretation that prohibits all amnesties, not just self-amnesties. This broader interpretation can be reached by reading the majority opinion together with the concurring opinions of both Judge A.A. Cançado Trindade, former president of the Court, and Judge Sergio García Ramírez, the Court’s current president. Judge Cançado Trindade, in a concurring opinion longer than the majority’s, elaborates his view that the Barrios Altos case represents 273 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶¶ 42–44 (emphasis added). While the court does not consistently use this term, it does appear in selected paragraphs in its decision on the merits. See, e.g., id. For a discussion of the different types of amnesties, see Young, supra note 4, at 216 (explaining that the three types include “self amnesty, amnesties granted to end political or military conflict, and amnesty in exchange for facts and information surrounding specific crimes”). 274 See Scharf, supra note 105, at 61. (“[I]t is likely that the . . . Inter-American Court of Human Rights would . . . agree that measures short of prosecution . . . would be adequate to discharge the duty to ensure human rights.”). Scharf repeated this argument in 2006, yet did not mention Barrios Altos or the subsequent rulings of the IACtHR that reinforce the general obligation to pursue criminal trials for human rights violations that do not necessarily fall within the strict criteria of being a crime found in a treaty. See Scharf, supra note 103, at 358. This limited inter- pretation is also adopted by Elizabeth Evenson. See Elizabeth M. Evenson, Note, Truth and Justice in Sierra Leone: Coordination Between Commission and Court, 104 Colum. L. Rev. 730, 750 n.127 (2004) (interpreting Barrios Altos as applicable only to “self-amnesty” laws). Outlawing amnesty: the return of criminal justice ... 101EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 a new and great qualitative step forward in its case-law, to the ef- fect of seeking to overcome an obstacle which the international organs of supervision of human rights have not yet succeeded to surpass: the impunity, with the resulting erosion of the confidence of the population in public institutions. Moreover, they meet an expectation which in our days is truly universal. It may be recalled, in this respect, that the main document adopted by the II World Conference of Human Rights (1993) urged the States to “abrogate legislation leading to impunity for those responsible for grave vio- lations of human rights […] and prosecute such violations […]”275 Significantly, Judge Cançado Trindade refers to a bedrock principle of inter- national law: that domestic laws may not be used to avoid international obliga- tions.276 He has also consistently written in other dissenting and concurring opi- nions that international law trumps national domestic law.277 This interpretation means that any type of immunity measure, including amnesties, made at any time to obstruct human rights prosecutions (which are now considered a state duty due to the Velásquez Rodríguez decision) would be invalid. Admittedly, Judge Cançado Trindade’s concurring opinion in Barrios Altos may only be read as his alone. However, the IACtHR adopted this same position in its subsequent interpretation of Barrios Altos—an interpretation astutely re- quested by Peru. In its interpretation, the Court reiterated its position that the ru- ling on amnesties applies to all criminal cases arising out of Peru’s internal armed conflict, not just Barrios Altos. The Court also referred to its case-law: [T]he general obligation of the State, established in Article 2 of the Convention, includes the adoption of measures to suppress laws and practices of any kind that imply a violation of the guar- antees established in the Convention, and also the adoption of laws and the implementation of practices leading to the effective observance of the said guarantees. […] In international law, customary law establishes that a State which has ratified a human rights treaty must introduce the neces- sary modifications to its domestic law to ensure the proper com- pliance with the obligations it has assumed. This law is universally accepted and is supported by jurisprudence. The American Con- vention establishes the general obligation of each State Party to 275 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 4 (Cançado Trindade, J., concur- ring) (quoting World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, ¶ 60, U.N. Doc. A/CONF.157/23 (July 12, 1993)) (referring to the criticisms of the “ignored amnesties” of the past). 276 Judge Cançado Trindade writes: “[These laws are] in flagrant incompatibility with the norms of protection of the International Law of Human Rights, bringing about violations de jure of the rights of the human person. The corpus juris of the International Law of Human Rights makes it clear that not everything that is lawful in the domestic legal order is so in the international legal order, and even more forcefully when superior values (such as truth and justice) are at stake. In reality, what came to be called laws of amnesty, and particularly the perverse modality of the so- called laws of self-amnesty, even if they are considered laws under a given domestic legal order, are not so in the ambit of the International Law of Human Rights.” Id. ¶ 6. 277 Id. ¶¶ 7–9. Lisa J. Laplante 102 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 adapt its domestic law to the provisions of this Convention, in order to guarantee the rights that it embodies. This general ob- ligation of the State Party implies that the measures of domestic law must be effective (the principle of effet utile). This means that the State must adopt all measures so that the provisions of the Convention are effectively fulfilled in its domestic legal system, as Article 2 of the Convention requires. Such measures are only effective when the State adjusts its actions to the Convention’s rules on protection.278 The Court’s subsequent interpretation of its own decision in Barrios Altos can be read to extend its ruling to all amnesties, not just self-amnesties. This rea- ding supports the other concurring opinion in Barrios Altos made by Judge García Ramírez who, also adhering to his previous concurring opinions, notes that one can distinguish between self-amnesty laws “promulgated by and for those in po- wer,” and those […] that are the result of a peace process, have a democratic base and a reasonable scope, that preclude prosecution of acts or be- haviors of members of rival factions, but leave open the possibility of punishment for the kind of very egregious acts that no faction either approves or views as appropriate.279 Significantly, he goes on to recognize “the advisability of encouraging ci- vic harmony through amnesty laws that contribute to re-establishing peace and opening new constructive stages in the life of a nation.”280 Nonetheless, he reite- rates the opinion of the “growing sector of doctrine and also the Inter-American Court” that “such forgive and forget provisions ‘cannot be permitted to cover up the most severe human rights violations, violations that constitute an utter disregard for the dignity of the human being and are repugnant to the conscience of humanity.’”281 Judge García Ramírez also refers to the principle embodied in Articles 1(1) and 2 of the Convention that states may not “invoke ‘difficulties of a domestic nature’ to waive the obligation to investigate the facts that infringed the Convention and punish those who are found criminally responsible for them.”282 If there is any question as to the actual reach of the Barrios Altos decision, subsequent IACtHR rulings confirm the broader interpretation. For example, the Bulacio case reinforces the notion that domestic laws preventing prosecution of human rights violations, including amnesty laws, are barred.283 In Bulacio, Argen- 278 Barrios Altos Case, Interpretation of the Judgment on the Merits, 2002 Inter-Am. Ct. H.R. (ser. C) No. 83, ¶ 17 (Sept. 3, 2001) (citations omitted). 279 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 10 (García Ramírez, J., concurring). 280 Id. ¶ 11. 281 Id. 282 Id. ¶ 12. 283 Bulacio Case, 2004 Inter-Am. Ct. H.R. (ser. C) No. 100 (Sept. 18, 2004). This case involved a complaint brought against the state of Argentina for the death of a seventeen-year-old boy who was detained during a general roundup of adolescents before a rock concert and later beaten up by police. Id. ¶ 3. See generally Basch, supra note 115, at 207–16 (discussing Bulacio and its impli- cations for the duty to prosecute doctrine). Outlawing amnesty: the return of criminal justice ... 103EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 tina acknowledged responsibility for the death of a minor and accepted that it had violated the right to life and humane treatment.284 Argentina also accepted res- ponsibility for violating Articles 8 and 25 by failing to provide an effective remedy in the form of a prompt investigation and punishment of those responsible.285 The IACtHR was left with the task of determining the appropriate reparations, including the duty to investigate the human rights violation.286 The IACtHR determined that the failure to investigate the case in Argen- tina had “been tolerated and allowed by the intervening judiciary bodies,” which acted as though their function was limited only to assuring due process in the form of a guaranteed defense at a trial.287 In the domestic case, the defense coun- sel was allowed to use delaying tactics which stalled the trial for several years and ultimately gave rise to a plea for extinguishment of the criminal case.288 Relying on the Barrios Altos interpretation, the Court also held: [E]xtinguishment provisions or any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible. The Court deems that the general obligations enshrined in Articles 1(1) and 2 of the American Convention require that the States Party adopt timely provisions of all types for no one to be denied the right to judicial protection, enshrined in Article 25 of the American Convention.289 The Court reiterated that Article 27 of the 1969 Vienna Convention on the Law of Treaties prohibits domestic legal rules, such as extinguishment pro- visions, from hindering the full application of decisions by international human rights bodies.290 According to the Court: “If that were not the case, the rights enshrined in the American Convention would be devoid of effective protection. This understanding of the Court is in accordance with the language and the spirit of the Convention, as well as the general principles of law.” 291 The Court further explained that “a situation of grave impunity” existed in Argentina due to the fact that no one there had yet been convicted, despite the initiation of judicial proce- edings nearly twelve years earlier.292 The Court characterized “impunity” as […] the overall lack of investigation, pursuit, capture, trial and conviction of those responsible for violations of rights protected 284 See Bulacio, 2004 Inter-Am. Ct. H.R. (ser. C) No. 100, ¶¶ 25, 33. 285 See id. ¶ 33. For instance, the case against one police officer was delayed for several years largely due to the fact that “defense counsel for the accused filed a large number of diverse legal questions and remedies (requests for postponement, challenges, incidental pleas, objections, motions on lack of jurisdiction, requests for annulment, among others), which have not allowed the proceedings to progress toward their natural culmination, which has given rise to a plea for extinguishment of the criminal action.” Bulacio, 2004 Inter-Am. Ct. H.R. (ser. C) No. 100, ¶ 113. 286 See id. ¶¶ 34, 110. 287 Id. ¶ 114. 288 Id. ¶ 113. 289 Id. ¶ 116 (citations omitted). 290 Id. ¶ 118. For a general discussion of the domestic law prohibition, see Henrard, supra note 78. 291 Bulacio, 2004 Inter-Am. Ct. H.R. (ser. C) No. 100, ¶ 117 (citation omitted). 292 Id. ¶ 119. Lisa J. Laplante 104 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 under the American Convention, as the State has the obligation to combat said situation by all legal means within its power, as impu- nity fosters chronic recidivism of human rights violations and total defenselessness of the victims and of their next of kin.293 The Court reaffirmed its view that domestic immunity measures such as am- nesty would impede the state’s duty to investigate and punish perpetrators of hu- man rights violations in Moiwana Community v. Suriname in 2005.294 There, the Court emphasized that Suriname’s amnesty laws would deprive its people of the effective protections of the American Convention and ordered the laws to be repealed. 295 The Court reiterated the “domestic law” prohibition against amnesties again in the La Cantuta decision in 2006. In that decision, the IACtHR said the Article 2 provision, which prohibits domestic laws from being used to avoid in- ternational legal obligations, “is universally valid and has been characterized in case law as an evident principle.”296 As a result, states must adjust their internal domestic laws to guarantee the rights enshrined in the Convention, and these laws must be effective pursuant to the effet utile principle.297 While the Court in La Cantuta did not identify specific domestic measures that may require adjust- ment, it did offer two general measures which should be adopted: “(i) repealing rules and practices of any nature involving violations to the guarantees provided for in the Convention or disregarding the rights enshrined therein or hamper the exercise of such rights, and (ii) issuing rules and developing practices aimed at effectively observing said guarantees.”298 Thus, these general guidelines, if applied to the case of amnesty laws would require their being repealed. 6.2 Other investigations cannot substitute for criminal investigations A narrow reading of the Barrios Altos decision might interpret it to apply only to blanket amnesties that prohibit all forms of investigation.299 Trumbull argues the Court may have left open the possibility that a state could satisfy its general obligation to afford accountability so long as it conducted some type of investigation, even if not pursuant to a criminal prosecution.300 He also indicates in a footnote that Peru did eventually conduct investigations through the TRC in 293 Id. ¶ 120 (citation omitted). 294 Moiwana Community Case, 2006 Inter-Am. Ct. H.R. (ser. C) No. 124, ¶ 167 (June 15, 2005). 295 See id. ¶ 207. 296 La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 170 (Nov. 29, 2006) (citation omitted). 297 Id. ¶ 171 (citations omitted). 298 Id. ¶ 172 (citations omitted). 299 Trumbull, supra note 43, at 300–01 (suggesting that blanket amnesties that bar all investiga- tions are not lawful and that states must provide some form of accountability for human rights atrocities). 300 Id.; see also Richard J. Wilson & Jan Perlin, The Inter-American Human Rights System: Activities from Late 2000 Through October 2002, 18 Am. U. Int’l L. Rev. 651, 657 (2003) (suggesting that the Court’s holding may be interpreted to mean some form of investigation is necessary). Outlawing amnesty: the return of criminal justice ... 105EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 the absence of criminal prosecutions, and implies that the IACtHR approved of this arrangement, supporting his view. 301 Trumbull’s interpretation may be refuted, though, by subsequent decisions of the IACtHR. For example, the Court reiterated the general prohibition on am- nesties in Cantoral-Huamaní and García-Santa Cruz in 2007, four years after the TRC published its final report in 2003. In its decision the Court wrote: The Court recalls that, when complying with its obligation to in- vestigate and, if applicable, punish those responsible for the facts, the State must remove all the de facto and de jure obstacles, that impede the proper investigation of the events, and use all available means to expedite the investigation and the respective proceed- ings in order to avoid a repetition of such serious acts as those examined in the instant case. The State may not invoke any law or provision of domestic law to exempt itself from the obligation to investigate and, if applicable, punish those responsible for the acts against Saúl Cantoral-Huamaní and Consuelo García-Santa Cruz. In particular, the Court recalls that the State may not apply amnesty laws, or provisions relating to prescription, or other provi- sions that exclude responsibility, which prevent the investigation and punishment of those responsible.302 Significantly, in the La Cantuta decision in 2006, the IACtHR reinforced the state’s duty to investigate and conduct criminal trials despite the fact that the Peruvian TRC had thoroughly investigated that case.303 The Court thus does not accept the proposition that a truth commission investigation alone would satisfy the state’s duty to investigate human rights crimes. 6.3 No amnesties for serious human rights violations Currently, there are two categories of international crimes that have become accepted bars to amnesties: enumerated treaty crimes, crimes against humanity and war crimes.304 The Barrios Altos decision, reflecting an already expanding legal framework, suggests a third possible bar to amnesties for crimes that arise out of human rights violations, but which do not necessarily rise to the level of crimes against humanity or war crimes. In this way, a serious violation that did not occur during war and that was not part of a general and systematic pattern of human rights abuses would still trigger a state duty to prosecute, and thus bar immunity measures such as amnesties.305 301 Trumbull, supra note 43, at 301 n.96 (quoting Wilson & Perlin, supra note 300, at 658–59). 302 Cantoral-Huamaní & García-Santa Cruz Case, 2008 Inter-Am. Ct. H.R. (ser. C) No. 167, ¶ 190 (July 10, 2007). 303 La Cantuta, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 157. 304 See discussion supra notes 144–46. 305 Crimes against humanity are, in essence, human rights violations that are part of a “system- atic and widespread” policy. For a discussion of how crimes against humanity are in fact human rights violations that rise to the level of systematic and widespread, see Tittemore, supra note 107, at 470. Lisa J. Laplante 106 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 In his concurring opinion, Judge Cançado Trindade also raised this issue, insisting that states have an international obligation to protect universally recog- nized, nonderogable rights such as the right to life and personal integrity.306 He argued these rights are protected by the American Convention and “fall in the ambit of jus cogens.”307 He went so far as to say that the adoption and application of amnesty laws is “an international illicit act” because those laws constitute a breach of a state’s responsibilities under the international law of human rights.308 He put it plainly: “It ought to be stated and restated firmly, whenever necessary: in the domain of the International Law of Human Rights, the so-called ‘laws’ of self-amnesty are not truly laws: they are nothing but an aberration, an inadmissi- ble affront to the juridical conscience of humanity.”309 Judge Cançado Trindade offers a novel argument on how to identify the list of crimes to which amnesty should not apply. He gives an historical account of the development and codification of humanitarian law, from the Martens Clause to the Geneva Conventions.310 He contends that “however advanced the codifica- tion of the humanitarian norms might be, such codification can hardly be consi- dered as truly complete,” and goes on to state: The Martens clause […] continues to serve as a warning against the assumption that whatever is not expressly prohibited by the Conventions on International Humanitarian Law could be per- mitted; quite on the contrary, the Martens clause sustains the con- tinuing applicability of the principles of the law of nations (droit des gens), the laws of humanity and the dictates (exigencies) of public conscience […]311 In other words, he directly challenges the idea that only those crimes ex- plicitly codified in international law constitute absolute obligations of states, and thus cannot be subject to amnesty. Judge García Ramírez, with perhaps more prosaic writing, also supported the perspective of his co-justice: The principle, in international human rights law and in the most recent expressions of international criminal law, that the impu- nity of conduct that most gravely violates the essential legal rights protected by both forms of international law is inadmissible, is based on this reasoning. The codification of such conduct and the prosecution and punishment of the perpetrators—and other participants—is an obligation of the State, one that cannot be 306 Barrios Altos Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 10 (Mar. 14, 2001) (Trindade, J., concurring). For a discussion of nonderogable rights, see Henrard, supra note 78, at 613–16. For comments on the obligation to prosecute for human rights violations, see Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 Leiden J. Int’l L. 5, 14 (1994). 307 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 10 (Cançado Trindade, J., concurring). 308 Id. ¶ 11. 309 Id. ¶ 26. 310 Judge Cançado Trindade discusses the Martens Clause introduced at the I Peace Conference of the Hague in 1899, which influenced the later Geneva Conventions. Id. ¶¶ 22–23. 311 Id. ¶¶ 23–24. Outlawing amnesty: the return of criminal justice ... 107EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 avoided by measures such as amnesty, prescription, admitting considerations that exclude incrimination, and others that could lead to the same results and establish the impunity of acts that gravely violate those primordial legal rights. Thus, extrajudicial ex- ecutions, the forced disappearance of persons, genocide, torture, specific crimes against humanity and certain very serious human rights violations must be punished surely and effectively at the national and the international level.312 In sum, these concurring judges propose that human rights violations do not need to be systematic and widespread (and thus crimes against humanity) before amnesties that would interfere with a state’s obligation to investigate, pro- secute, and punish those violations will be prohibited. Subsequent IACtHR decisions have continued to refine and build the jurisprudence on amnesties. These decisions reinforce the interpretation of Barrios Altos as barring amnesties for serious human rights violations.313 For example, in Bulacio the Court does not rely on the argument that the violation occurred as part of a systematic and generalized pattern, and is thus a crime against huma- nity.314 Significantly, the Court frames the duty to investigate, prosecute, and pu- nish as part of reparations, and invokes criminal justice as part of the general right to know the truth—a right belonging as much to the individual petitioners as to Argentine society as a whole. In this way, it folds criminal justice into the idea of restorative justice.315 This interpretation has also been extended by human rights lawyer Brian D. Tittemore, a former staff member in the General Secretariat of the OAS Secretariat for the IACHR, who writes that “the practice and jurispru- dence of the inter-American human rights system has given rise to and reinforced international legal principles and standards governing the obligation of states to ensure individual accountability for serious human rights violations, including those infringements that would constitute crimes under international law.”316 312 Barrios Altos, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 13 (García Ramírez, J., concurring) (emphasis added). 313 For example, in Almonacid-Arellano v. Chile, the Court specifically addressed the issue of the prohibition of amnesties for crimes against humanity. Instead of merely referring to the Barrios Altos decision, the Court made a special reading as if to expand the doctrine to extend to crimes against humanities as an obvious extension of human rights violations, since in reality they run along a continuum. Almonacid-Arellano Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 154, ¶ 114 (Sept. 26, 2006) (“States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.”). 314 One expert witness described the policy of “razzias” (the vernacular term for the police roundups) as “a more or less systematic policy,” but the Court nowhere else in the opinion made reference to the term “systematic.” Bulacio Case, 2004 Inter-Am. Ct. H.R. (ser. C) No. 100, ¶ 53 (Sept. 18, 2003). 315 See id. ¶¶ 110, 112 (citations omitted). 316 Tittemore, supra note 107, at 449. Significantly, Tittemore includes the category of “serious human rights violations” on the list of crimes over which international tribunals (including the ICC and the tribunals in Rwanda and the former Yugoslavia) have jurisdiction. Lisa J. Laplante 108 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 7 State practice: reinforcing the international legal ban to amnesties in domestic courts This final Part explores how subsequent state practice in Latin America may offer additional persuasion as to the broad reach of the Barrios Altos decision. In response to Barrios Altos, many states have annulled their amnesty laws and initiated criminal trials. This is significant, for one, because patterns of state prac- tice ultimately form the basis of customary international law. This phenomenon also supports this Article’s argument that Barrios Altos should be read broadly to prohibit all forms of amnesty for human rights violations. The decisions of domestic courts in Latin America offer persuasive evidence for the broad interpretation of the Barrios Altos case. International law arises not only out of the decisions of international organs, but also the application of tho- se decisions in domestic legal systems.317 Thus, “[o]ne measure of the impact of international law principles, but the most difficult to trace and document, is pre- cisely how well they effectuate this indirect transfer into the national sphere.”318 Others recognize the importance of observing state practice in order to begin car- ving out universal norms. Dugard writes that “it is difficult to identify mandatory rules of international law to govern the conduct of the successor regime. The best one can do is to identify trends that probably qualify as emergent norms. These norms appear from recent state practice.”319 Those who still adamantly argue that amnesties can only be prohibited for treaty crimes point to consistent state practice as evidence of a customary rule of international law in this regard.320 Because states still apply amnesty, they ar- gue, it must be permissible under international law.321 Scharf, a strong proponent of this approach, argues, “Notwithstanding the chimerical conclusions of some scholars, there is scant evidence that a rule prohibiting amnesty or asylum in cases of crimes against humanity has ripened into a compulsory norm of customary international law.”322 He explains that when “widespread practice” begins to con- form to the proclamations of international bodies then, despite a “few instances of departure,” this practice can be called binding customary law.323 317 Roht-Arriaza & Gibson, supra note 31, at 844–45. 318 Id. at 845. 319 Dugard, supra note 60, at 280. 320 See, e.g., Scharf, supra note 103, at 360 (“Customary international law, which is just as bind- ing upon states as treaty law, arises from ‘a general and consistent practice of states followed by them from a sense of legal obligation’ referred to as opinio juris.”). 321 This camp of scholars disagrees with the argument that these countries may in fact be violat- ing international law. See Scharf, supra note 105, at 61 (writing that despite some UN General Assembly resolutions and forceful arguments by legal scholars, “state practice does not yet sup- port the existence of an obligation under international law to refrain from conferring amnesty for crimes against humanity”). For a list of states that have enacted amnesties following episodes of human rights violations, see Trumbull, supra note 43, at 294–97. 322 Scharf, supra note 103, at 360. Scharf makes this argument but omits discussion of the Barrios Altos decision in his article. 323 Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J. 1, 41 (1996); see also Slye, supra note 5, at 175 (citing the increased use of amnesties and thus suggesting state practice). Outlawing amnesty: the return of criminal justice ... 109EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Heeding the call to monitor state practice, it is significant that state mem- bers of the Inter-American System have now begun to annul the same amnesty laws which initially established the general state practice that suggested they were legally permissible, and they do so relying on the Barrios Altos case. Moreover, these states are now pursuing criminal trials against those responsible for human rights violations in past regimes. In Peru, for instance, the transitional justice experience was dramatically influenced by the Barrios Altos case, as already men- tioned. On April 20, 2002, the Attorney General’s Office of Peru issued a resolu- tion to create a special prosecutor as part of its plan to implement the IACtHR’s decision.324 Soon after, Peru’s Constitutional Court issued seminal decisions that referred to the Barrios Altos decision and served as precedent for all Peruvian courts.325 Indeed, in one of these cases, the court corrected its own jurisprudence issued six years earlier on the issue of amnesty, framing its arguments within the terms of the right to truth.326 Peru’s highest court explained: [I]t falls to the State to prosecute those responsible for crimes against humanity and, where necessary, to adopt restrictive laws to prevent, for example statutes of limitation for crimes against human rights. The application of such laws is conducive to the effectiveness of the legal system and is justified by the prevailing interests of the struggle against impunity. The objective, evidently, is to impede certain mechanisms in the criminal law system, which are applied for the repulsive purpose of securing impunity. This must be prevented and avoided, since it encourages criminals to repeat their behaviors, becomes a breeding ground for vengeance, and corrodes the underlying values of democratic society: truth and justice.327 The opinion, in effect, imbues the transitional justice formula promoted by the TRC with a new legality.328 With the help of the Inter-American System, 324 Resolución de la Fiscalía de la Nación No. 631-2002-MP-FN, Diario Oficial El Peruano No. 221,668 (Apr. 20, 2002) (Peru). The Attorney General issued a follow-up resolution on April 20, 2005, ordering prosecutors in all instances working on cases that were subject to the amnes- ty laws to request the trial or appellate court to enforce the international judgment. Resolución de la Fiscalía de la Nación No. 815-2005-MP-FN, El Peruano (Apr. 20, 2005). 325 Martín Rivas, Constitutional Court, Exp. No. 4587-2004-AA/TC (Nov. 29, 2005) (Peru); Vera Navarrete, Constitutional Court, Exp. No. 2798-04-HC/TC (Dec. 9, 2004) (Peru); Villegas Namuche, Constitutional Court, Exp. No. 2488-2002-HC/TC (Mar. 18 2004) (Peru). 326 Villegas Namuche, Constitutional Court, Exp. No. 2488-2002-HC/TC, ¶¶ 8–20. 327 Id. ¶ 23 (“Asimismo, corresponde al Estado el enjuiciamiento de los responsables de crímenes de lesa humanidad y, si es necesario, la adoptación de normas restrictivas para evitar, por ejem- plo, la prescripción de los delitos que violenten gravemente los derechos humanos. La aplicación de estas normas permite la eficacia del sistema jurídico y se justifica por los intereses prevalentes de la lucha contra la impunidad. El objetivo, evidentemente, es impedir que ciertos mecanismos del ordenamiento penal se apliquen con el fin repulsivo de lograr la impunidad. Ésta debe ser siempre prevenida y evitada, puesto que anima a los criminales a la reiteración de sus conductas, sirve de caldo de cultivo a la venganza y corroe dos valores fundantes de la sociedad democráti- ca: la verdad y la justicia.”) (author’s translation). 328 Significantly, the status of the Barrios Altos decision in national law gained more clarity during the proceedings of the La Cantuta case before the IACtHR. While the Commission and repre- sentatives of the victims argued that the state should take positive steps to annul the amnesty Lisa J. Laplante 110 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 all procedural impediments to pursuing criminal justice as part of the Peruvian transitional justice project were eliminated.329 The TRC’s mandate established its remit to conduct a two-year investigation into the causes and consequences of the armed conflict.330 The Barrios Altos case directly influenced Peru’s decision to include the eventual possibility of criminal investigations and prosecutions in the TRC’s mandate, even if the TRC itself could not conduct such trials. Throughout its two-year investigation, the TRC purposefully conducted its operations in a manner that would support state investigations, even creating a spe- cial criminal investigation unit to prepare cases to present to the state.331 Even befo- re it presented its final report in August 2003, the TRC held a ceremony to transfer for investigation the first case to the Public Ministry to symbolize its commitment to criminal prosecutions. The TRC later transferred an additional forty-three of the most emblematic cases of human rights violations and recommended prompt cri- minal investigations and prosecutions in hundreds of others.332 In addition, its final report included chapters on the most important cases arising out of the twenty-year internal armed conflict, including Barrios Altos333 and La Cantuta.334 Thus, now, some five years after the TRC published its final report in 2003, national public prosecutors across the country have opened hundreds of criminal investigations into alleged extrajudicial killings and disappearances, some of which rose to the le- vel of massacres and all of which occurred during the country’s twenty-year internal armed conflict between state agents and insurgent groups. Meanwhile, many of the criminal investigations into the cases arising out of the friendly settlement reached between Peru and the IACHR were underway as the TRC prepared its final report. The report looked at the incidents at Barrios law, the state responded by saying it was not necessary, naming various other measures taken by the state. See La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 164 (Nov. 29, 2006). The state argued that “the granting of amnesty has no practical effects in the domestic legal system.” Id. The state, however, added that “in the event the Court held a different view, it should state precisely what such measure would be, since this is not a simple issue concerning domestic law. Under the current Constitution, not only are human rights treaties part of the domestic law, but also any interpretation made by the organs created by such treaties constitute mandatory criteria by which the rights in the country are to be interpreted. Therefore, in the State’s opinion, such legal framework would be sufficient in the current state of affairs.” Id. 329 See generally Eduardo González Cueva, The Peruvian Truth and Reconciliation Commission and the Challenge of Impunity, in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice 70 (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006). By contrast, in South Af- rica, victims could not resort to an international tribunal when they lost their challenge against amnesty laws before the highest national court. See Roht-Arriaza & Gibson, supra note 31, at 856–57 (describing the frustrated attempts of South Afrikaners to contest the amnesty laws). 330 See 1 Comisión de la Verdad y Reconciliacion [Truth & Reconciliation Commission], supra note 162, at 26, available at http://www.cverdad.org.pe/ifinal/pdf/TOMO%20I/INTRODUC- CION.pdf. 331 See González Cueva, supra note 329, at 78–79. 332 During its investigations, the TRC began to present some of its criminal investigations to the Attorney General’s office (author’s personal observations from field work). 333 7 Comisión de la Verdad y Reconciliacion [Truth & Reconciliation Commission], supra note 162, at 475, available at http://www.cverdad.org.pe/ifinal/pdf/TOMO%20VII/Casos%20Ilustra- tivos-UIE/2.45%20BARRIOS%20ALTOS.pdf. 334 Id. at 233, available at http://www.cverdad.org.pe/ifinal/pdf/TOMO%20VII/Casos%20Ilustra- tivos-UIE/2.22.%20LA%20CANTUTA.pdf. Outlawing amnesty: the return of criminal justice ... 111EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Altos and La Cantuta as part of a general investigation of Colina. Also, on October 16, 2001, the Peruvian Military Council responded to the IACtHR ruling in Bar- rios Altos by declaring “null and void” the Supreme Court judgment issued on June 16, 1995, which extended amnesty to the army officials charged with the Barrios Altos massacre.335 At the same time, the civil courts obtained jurisdiction over these cases.336 As a result, some fifty-six persons were indicted, including a milita- ry general and a top intelligence advisor to Fujimori. Proceedings against Colina agents were also reinitiated in the La Cantuta case, running concurrently with the TRC and resulting in convictions on April 8, 2008.337 In August 2007, the special court for anticorruption, which also handles human rights, opened proceedings against persons involved in La Cantuta, including Luis Augusto Pérez Document, General Hermosa-Ríos, Montesinos, and José Velarde Astete.338 The TRC’s explicit commitment to criminal justice prompted public pro- secutors in the sixteen provinces most affected by the war to open investigations into hundreds of human rights cases.339 For example, a prosecutor in the Andean highlands of Ayacucho, where the greatest brunt of political violence occurred, initiated investigations and prosecutions in some three hundred cases of human rights violations after going into rural communities to interview victims. She na- med former president Alan García among the suspected perpetrators in the case of Accomarca, charging him with genocide (Garcia was president from 1995-1990, and was newly elected in 2006). Thus, beginning in 2005, the provincial and cen- tral criminal courts have issued a handful of significant judgments, some of which include substantial prison sentences for military and police officers. Perhaps most significantly, top leaders—including Fujimori—have been facing trials for crimes arising out of human rights violations. These historical cases are resulting in judi- cial decisions on human rights law which ultimately contribute both to national and international criminal law jurisprudence. 335 La Cantuta Case, 2007 Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(63) (Nov. 29, 2006). The Peruvian officers included: Brigade Army General Juan Rivero-Lazo, Army Colonel Eliseo Pich- ilingue-Guevara, Army Captain José Adolfo Velarde-Astete, Army Lieutenant Aquilino Portella- Núñez, Army Third-Rank Technicians Julio Chuqui-Aguirre, Nelson Rogelio Carbajal-García, Jesús Antonio Sosa-Saavedra, and retired Army Lieutenant Aquilino Portella-Núñez. Id. The October 16, 2001, ruling allowed the perpetrators to return to the procedural status they held before the amnesty laws took effect and allowed the judgment of May 3, 1994, to be served. Id. 336 See Resolución Administrativa No. 170-2004-CE-PJ, Diario Oficial El Peruano (Sept 30, 2004) (Peru). 337 The former head of SIN, General Julio Salazar-Monroe, was sentenced to thirty-five years in prison for his role in the La Cantuta disappearances, and three of his subordinates received fifteen-year sentences for the same offenses. Press Release, Human Rights Watch, Peru: Sala- zar Conviction Step on Road to Justice (Apr. 9, 2008), available at http://www.hrw.org/english/ docs/2008/04/09/peru18489.htm. 338 República del Perú [Republic of Peru], Defensoría del Pueblo [Ombudsman], El Estado frente a las víctimas de la violencia. ¿Hacia dónde vamos en políticas de reparación y justicia? [The State with regard to victims of violence: How far will we go with reparation and justice policy?] 99 n.31 (2007) (Peru), available at http://www.defensoria.gob.pe/inform-defensoriales.php. 339 Coordinadora Nacional de Derechos Humanos [National Coordinator of Human Rights], Informe Anual 2007 [Annual Report 2007], at 22 (2008) (Peru), available at http://www.dhperu. org/documentos/informe/85fa9b_cap1.pdf. Lisa J. Laplante 112 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 One of the most important events in this evolving criminal justice movement was the successful extradition of Fujimori in September 2007, after six years of pro- ceedings, first with Japan and then with Chile. Fujimori faces charges of both cor- ruption and human rights, the latter including the incidents of Barrios Altos and La Cantuta. Fujimori’s trial for the human rights charges began on December 10, 2007. On April 7, 2009, he was found guilty on all human rights charges and sentenced to twenty-five years in prison; Fujimori has declared he will appeal his conviction.340 The Barrios Altos precedent has begun to show its impact in Latin America, beyond just Peru where it applied directly. For example, on June 14, 2005, the Argentine Supreme Court of Justice found the Due Obedience and Full Stop laws were unconstitutional because they violated the country’s international legal obli- gations.341 Part of the Argentine court’s reasoning rested on the Barrios Altos deci- sion, which it interpreted as providing a general bar against all amnesties that pre- vent criminal accountability for serious human rights violations.342 Almost thirty years after the amnesty laws halted criminal justice in Argentina, the influence of the ruling can be seen as national prosecutors open criminal prosecutions against almost three hundred military officers who benefited from earlier amnesty laws.343 The Court relied on international law, including the IACHR’s decision on Argentina’s Full Stop and Full Obedience laws and Barrios Altos, in its decision. The Court specifically interpreted these decisions to apply beyond just self-am- nesty laws, and thus resolved any doubt on the illegality of Argentina’s immunity laws.344 In addition, the Court made reference to the IACHR’s general position that it is “practically irrelevant” that amnesties are enacted by democratic bodies based on the demands of national reconciliation because these laws still violate the American Convention and the duty to prosecute as established in the Velás- quez Rodríquez ruling.345 Significantly, the Argentine justices referred specifically to Judge García Ramírez’s concurring judgment in Barrios Altos in which he argued the decision should be extended to all amnesties despite their possible beneficial effects in reestablishing peace.346 One can also see renewed efforts to pursue criminal justice in Chile, es- pecially in the wake of the Pinochet case which reinvigorated local efforts to as- sure criminal prosecutions for the human rights violations of that country’s dirty war.347 When Pinochet returned to Chile, the Chilean Congress lifted the former leader’s parliamentary immunity to allow criminal proceedings to be initiated 340 Simon Romero, Peru’s Ex-President Convicted of Rights Abuses, N.Y. Times, Apr. 8, 2009, at A6, available at http://www.nytimes.com/2009/04/08/world/americas/08fujimori.html. 341 Corte Suprema de Justicia [CSJN], 14/6/2005, “Julio Héctor Simón,” Colección Oficial de Fallos (2005-328-2056) (Arg.), available at http://www.acnur.org/biblioteca/pdf/3560.pdf. 342 Id. ¶ 24. For a discussion on this issue, see Tittemore, supra note 107, at 449–54 (provid- ing an account of Argentina’s recent judicial decisions on the amnesty laws enacted in its political transition). 343 Canton, supra note 39, at 167. 344 CSJN, 14/6/2005, “Julio Héctor Simón,” Fallos (2005-328-2056), ¶ 25 (Arg.). For a discus- sion of Argentina’s reliance on Barrios Altos, see Márquez Urtubey, supra note 28, at 122. 345 CSJN, 14/6/2005, “Julio Héctor Simón,” Fallos (2005-328-2056), ¶¶ 25–27 (Arg.). 346 Id. ¶ 27. 347 See Evans, supra note 33, at 210. Outlawing amnesty: the return of criminal justice ... 113EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 against him.348 The parliament also presented a bill to annul Chile’s twenty-year- -old amnesty laws to enable criminal proceedings against other suspected human rights violators—the measure was up for a vote at the time of publication.349 In addition, the Supreme Court of Chile ruled on the inapplicability of Chile’s am- nesty laws and statutes of limitations in investigations on forced disappearan- ces.350 Chile, along with Spain and South Africa, has also renewed efforts to bring perpetrators to justice, providing that “despite explicit efforts to leave the past behind, the contentious issue of human rights refuses to remain buried.”351 These renewed campaigns for criminal justice suggest that those who poin- ted to these same countries as examples “that truth could substitute for justice” to argue that state practice supported amnesties, overlooked the resilience of the “thirst for justice.”352 Indeed, local victims eventually began to force a sea change in state behavior and put into question some of the once accepted tenets of the truth v. justice debate through their diligent use of international legal recourse. Essentially, the maxim appears today to be truth and then later justice. Justice may be delayed but nonetheless the principle of criminal justice remains in the equation.353 Moreover, it seems a new stage in the transitional justice field is mo- ving away from the truth v. justice debate, which poses the options in binary terms of choosing between trials or truth commissions (i.e., either/or), and instead ex- panding to the view that transitional justice encompasses both options (i.e., and/ also). Indeed, Peru’s clear deviance from the truth commission model set in South Africa could divert the international trend, making the South African experience suddenly an isolated exception.354 The more current trend is to see countries opting for both truth commis- sions and criminal prosecutions.355 For example, upon revoking a blanket amnesty offered in peace negotiations, Sierra Leone eventually annulled that law and for- 348 Id. 349 Agenda de Derechos Humanos para el Bicentenario [Human Rights Agenda for the Bicenten- nial], Comisión del Constitución del Senado Aprueba Derogación de Amnistía [Senate Consti- tutional Commission Approves Amnesty Derogation] (Dec. 18, 2008), athttp://adhb.wordpress. com/2008/12/18/comision-del-constitucion-del-senado-aprueba-derogacion-de-amnistia/ (Chile). 350 Miguel Angel Sandoval Rodríguez Case, Corte Suprema de Chile (Nov. 17, 2004), available at http://www.derechos.org/nizkor/chile/doc/krassnoff.html (referring to Chilean Decree Law No. 2191 of 1978). 351 Evans, supra note 33, at 208; see also David A. Crocker, Reckoning with Past Wrongs: A Normative Framework, 13 Ethics & Int’l Aff. 43, 53 (1999); Margaret Popkin & Nehal Bhuta, Latin American Amnesties in Comparative Perspective: Can the Past be Buried?, 13 Ethics & Int’l Aff. 99, 111 (1999). 352 Roht-Arriaza, supra note 2, at 313. 353 See Marguerite Feitlowitz, A Lexicon of Terror: Argentina and the Legacies of Torture 193 (1998) (discussing Argentina’s “Scilingo Effect” of confessions coming two decades after junta rule ended). 354 See Jenkins, supra note 61, at 46 (noting South Africa’s exceptional experience based on the exchange of amnesty for confessions); Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 Crim. L.F. 185 (2001) (discussing the experiences of coun- tries opting for criminal trials). 355 Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l L. 952, 954 (2001) (writing on the develop- ment of truth commissions into a “justice-supportive machinery”). Lisa J. Laplante 114 EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 med a Special Court at the same time it created a Truth Commission in 2002.356 Now, almost two decades after the truth v. justice debate gained momentum, con- sensus suggests that truth commissions and criminal trials are “mutually reinfor- cing and complementary,” rather than options which create tensions, tradeoffs, and dilemmas. 357 Certainly the new global context, aided by judicial pronouncements like Barrios Altos, greatly influences the international community’s attitude towards amnesties, which also influences the pressure on national leaders to pursue crimi- nal justice.358 In this vein, political scientist Elin Skaar found that in thirty Latin American and African countries that underwent transition after the mid-1970s, the government’s human rights policy rested largely on the “relative strength” of the public’s demand for truth and justice balanced with the outgoing regime’s demand for amnesty and impunity.359 8 Conclusion The IACtHR offered the international community a holding in Barrios Altos that if read broadly could cause monumental changes in transitional justice sche- mes. Yet, despite my inclination to refute narrow readings of the Inter-American decision, I at the same time must acknowledge one significant factor that could nevertheless continue to limit the reach of Barrios Altos. In particular, the steadily growing framework of international law has created new dilemmas and concerns regarding the lack of uniformity in a system that has no overarching court or legis- lature to unify laws and practice. Indeed, the IACtHR is a regional tribunal, whose holding technically is only binding on OAS members, and then only to those who have signed the American Convention. Thus, we are left with the question whether the Barrios Altos precedent sig- nifies a new evolution in the general field of international law for all countries, or alternatively only for the region of Latin America. Is it a watershed in combating international impunity, or just one more example of the type of fragmentation in international criminal law that Gerhard Hafner views as the “erratic blocks and elements” of an “‘unorganized system’ full of intra-systematic tensions, contra- dictions and frictions”?360 It will be important to watch whether the Barrios Altos decision begins to serve as persuasive authority in other regions and settings in order to assess its full impact. 356 See Schabas, supra note 99, at 157–61. The Special Court went on further to test the valid- ity of the amnesty laws finding that a state may not create amnesties to protect offenders from prosecution for crimes that amount to an international crime subject to international jurisdic- tion. Id. at 161. 357 Leebaw, supra note 40, at 103. 358 See generally Naomi Roht-Arriaza, Special Problems of a Duty to Prosecute: Derogation, Amnesties, Statutes of Limitation, and Superior Orders, in Impunity and Human Rights in International Law and Practice, supra note 25, at 57. 359 Elin Skaar, Truth Commissions, Trials—or Nothing? Policy Options in Democratic Transitions, 20 Third World. Q. 1109, 1124 (1999). 360 Gerhard Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Int’l L. 849, 850 (2004). Outlawing amnesty: the return of criminal justice ... 115EJJL Chapecó, v. 13, n. 3, p. 59-116, Edição Especial 2012 Regardless of its reach, the implications of the outlawing of amnesties in transitional justice settings, even if contained in Latin America, generate new questions in the field. One recent line of inquiry looks at how international cri- minal law is being “nationalized” and again how this creates issues of “fragmenta- tion” in terms of the substance and application of international legal norms. For instance, in holding human rights trials while respecting the principles of legality, which law do states apply? In the case of Peru, which only recently codified ex- trajudicial execution close to the end of Fujimori’s regime in 1998, it is applying common criminal codes of homicide. How does this choice of law contribute or undermine the developing norms of international criminal law, or does it even matter? Will evolving state practice and jurisprudence result in difficult contra- dictions and inconsistencies, or will it slowly evolve into a uniform system? Finally, if the trend points toward inclusion of national criminal trials in transitional justice settings, what will be the implications for the now broader goals of these schemes in terms of restorative justice? Will national reconciliation be undermined? Will national trials perhaps be compromised by inexperienced, weak, or corrupt courts, and will political realities only increase victim-survivors’ distrust and disappointment? Or alternatively, will a new legality inspire more creative ways of upholding the principle of criminal justice while carving out ex- ceptions such as plea bargaining and prosecutorial discretion? These are only a few of the questions that arise when contemplating a new phase in the development of transitional justice. While the binary nature of the truth v. justice debate perhaps simplified the conversation by providing two options, we now enter a more complex and nuanced territory that may test the social and political limits of a new legality that limits the possibility of choice. Data da submissão: 10 de maio de 2012 Avaliado em: 31 de outubro de 2012 (Avaliador A) Aceito em: 9 de novembro de 2012 
work_dinirwmov5fmrgfzwskwuif7ie	----	Memory, Justice and the Public Record Memory, Justice and the Public Record Gudmund Valderhaug Introduction In March and April 2008, while I was preparing this paper for the Ethics of Memory Construction conference in Ann Arbor, Bergens Tidende (the major newspaper in Western Norway) published a series of articles on women that had been victimised after the liberation in May 1945 because they had fraternised with German soldiers during the Nazi occupation. The series triggered a passionate debate in the press and in other media. Some voices, provoked by the articles’ viewpoints, claimed that, even though the public reactions against these girls had been exaggerated and regrettable, there should be no doubt that many of them had acted contrary to national interests during the occupation. However, the great majority of debaters asserted that the girls in general had been innocent victims of an unjust revenge, and that their only “crime” was that they had fallen in love with men in a Wehrmacht uniform. The scale and passion of this debate indicates that the treatment of these women still represents a traumatic memory for many Norwegians. The paper that I was preparing was meant to deal with the fate of these women’s children, the Norwegian “war children”. Women who had fraternised with German soldiers became targets for popular revenge in all European countries that had been occupied by Nazi Germany, but the case of the Norwegian war children is remarkably special. One incident might serve to illustrate this: In July 1945, Norwegian authorities made contact with several European countries, asking how these countries intended to solve their “war child problem”. Apparently, most of these countries didn’t understand the question; the war children were not considered to be a pressing issue anywhere else than in Norway (Borgersrud 2005, 124-125). The Unwanted Children A report in the German daily Frankfurter Rundschau on 4 May 2002 tells the story of a war child. She was born in 1943; her mother was Norwegian, her father a German soldier. Shortly after her birth, she was taken to a Lebensborn children’s home near Oslo. As a one year old she was moved to another Lebensborn home near Bremen in Germany. After Hitler’s surrender, she was found there by Norwegian representatives. They sent her to Sweden, where she was adopted by a Swedish couple and given a new identity as the daughter of a woman who had died in a Nazi concentration camp. After the liberation in May 1945, government officials were set to deport the war children 1 from Norway. Eventually, these plans failed; only one group of some 30 children was actually deported to Sweden in summer 1945, and this woman was one of these (Borgersrud 2005, 73-92). She grew up believing she was a survivor from the Holocaust. She didn’t learn about her true identity until 1996, when she approached the Swedish National Archives to find out which camp she came from and who mother had been. “You don’t come from a concentration camp,” the archivist said, “you come from Norway”. Norwegian historian Lars Borgersrud’s explores the development of official Norwegian politics concerning the war children, and analyses the motivations for these politics, in his significant study “Vi ville ikke ha dem” (2005). Borgersrud suggests that the deportation plans were built on mainly two conditions. Firstly, deportation of children as a means to solve social problems had been an established procedure in many countries for several decades, especially in Great Britain (Coldrey 1993). Secondly, the war children were regarded as inferior citizens. This was a result of the continuous impact of eugenic thinking on politics and medical science since the 1920s, which regarded biological or genetic factors as decisive for an individual’s societal position (Simonsen and Ericsson 2004). Indeed, in 1945 one leading Norwegian medical expert warned that the war children could represent a future threat to the mental health of the nation. His line of argument went like this: Only a mentally underdeveloped girl would want to fraternise with the enemy, and 1 According to the official statistic record there were born 8364 children with Norwegian mothers and German father between 1941 and 1946. Historians generally agree that these records are not complete. only an equally underdeveloped German soldier would be content with a girl like that; consequently the offspring of such breeding most probably would be underdeveloped children (Olsen 2004, 103). This state politics obviously had broad public support. An important reason for this was the public condemnation of the mothers of the war children. In Norway, as elsewhere in Europe, women who had intimate relations with Germans during the occupation became targets for popular revenge in May 1945. The so-called “German girls” were considered to be guilty of a double betrayal, both nationally and sexually. However, the great majority of these women did neither sympathise with Nazism nor betray their country, and contrarily to what seems to have been general belief at the time, only a small percentage were prostitutes (Jørgensen, 43-44). It has been suggested that this condemnation was sexually fixated; the dominant patriarchal ideology of that time considered female sexuality to be uncontrollable and a possible threat to society. Thus, popular opinion regarded sexual collaboration as the greatest treason of all, and more visible than other kinds of collaboration because of its ultimate evidence: the children. And even though the condemnation and revenge wasn’t aimed directly at the children, it still affected them; they were the living proof of their mothers’ sins . Partly because of this, most of the war children were also subject to various degrees of bullying and social exclusion in their neighbourhoods and at schools. Due to the victimisation and ostracism of their mothers, a large number of war children grew up in orphanages, with their grandparents or other relatives, or were adopted (Borgersrud 2005, Simonsen 2001). Lars Borgersrud’s research has shown that a number of state bureaucrats spent quite a bit of energy on this matter during 1945; there were even informal negotiations with Swedish officials to arrange adoption of children in Sweden. There was but one problem: most of the War Children were Norwegian citizens, which made deportation of them illegal. This left the bureaucrats with two options: Either to get their mothers’ consent to send the children abroad, or to do something with their citizenship. This was precisely what was done in August 1945, when a special decree deprived women that had married a German after the invasion on 9 April 1940 of their Norwegian citizenship. Most of these women were deported to Germany, some of them together with their children. In October 1945, the Norwegian government officially abandoned future deportation plans. But even after this, some bureaucrats continued their efforts to get rid of the children. When an Australian immigration commission visited Oslo in November that year, they were literally offered 9 000 war children across the table. But the Australians did not accept; “Half- German” kids were neither wanted in the British Empire in 1945. After the deportation plans were abandoned, the war children were still discriminated by state politics. A great number of them were excluded from the national family allowance system, which was introduced in 1947 as the first major social reform in the Norwegian welfare state program. This system gave all Norwegian children a monthly benefit from the state. But a considerable part of the war children were in practice excluded from this system: Those who had lost their Norwegian citizenships because their mothers had married a German during the war, and those who didn’t live with their mothers (Borgersrud 2005, 365). Another example of public discrimination was the question of getting child support from the German fathers. For political reasons, Norwegian authorities did not want the unmarried mothers to be in touch with their children’s fathers, and all legal proceedings to establish paternity – about 6 000 cases – were halted in 1946. When these cases were re-opened in 1950, only a small portion of the mothers re- established their claims and less than 500 fathers ended up paying (Borgersrud 2005, 363-64). As a result of this economic discrimination from the state, the majority of the war children grew up under poorer economic conditions than other children. The Construction of the War Children The war children had nothing in common except their fathers’ nationality. A German- Norwegian child was not a war child if its mixed national parentage was unknown to others. As a group, they were a social construction. This construction was founded on the concievable knowledge of each individual’s existence, which was made possible by the registration of the children and their parents in the Lebensborn records. The existence of this archive, I will suggest, was an important condition for the particular Norwegian history of the war children. Lebensborn – “the source of life” – was an organisation established by SS Reichfürer Heinrich Himmler, initially to run maternity homes for unmarried pregnant German women of the “Aryan race”. After the outbreak of WW2, its activities were expanded to include services for widows and children of fallen SS soldiers, and for children of German soldiers and native mothers in occupied territories. In Norway, Lebensborn had the highest high level of activity outside Germany, running at least 9 homes for children and mothers. Norway was the only occupied country with a central Lebensborn headquarters. One reason for this was that the Nazi leaders considered Norwegians to be racially acceptable; because of this, sexual relationships between German soldiers and Norwegian women were positively tolerated, if not encouraged. More important, the children that such relationships might produce might be racially healthy and worthy of Lebensborn care (Olsen 2004). In his article “The Archive and the German Nation”, Peter Fritzsche has shown how archives became an important resource for the implementation of Nazi racial politics: “This required not only the mobilization of existing records for political ends but the creation of new records that would recognise the biological categories that the Nazis held to be so consequential. As the definition of the political became more biological, so did the official archive” (Fritzsche 2005, 196). Fritzsche quotes the director of the Bavarian archives, who in 1936 established that “[t]here is no practice of racial politics without the mobilisation of source documents, which indicate the origin and development of a race and a people… There is no race politics without archives, without archivists” (ibid). The records in the Lebensborn Norwegian HQ were also created for this purpose. If a woman became pregnant with a German soldier, she and the assumed father individually had to answer special questionnaires about themselves and their relationship, and information about the woman’s health condition and race was collected and registered. When the woman was in the last half of her pregnancy, she could move to a Lebensborn home and stay there until six weeks after the child had been born. If she didn’t want to keep the child, Lebensborn would arrange adoption or keep it in one of their children homes. If the mother kept the child she was entitled to a rather generous support from Lebensborn, which in turn requested that she kept them informed about the child’s health and development. If the couple wanted to get married, Lebensborn could help them to sort out the paperwork (Jørgensen, 22-23). Evidence of all such matters were registered and filed in the Lebensborn archive. After the German surrender, this archive gave Norwegian authorities access to detailed information about some 8 500 war children and their mothers. Without these records, the Norwegian authorities would not have had access to any accumulated national register of war children, as Norwegian birth registration at this time was decentralised and no national registers were kept. Norway was the only occupied country where a central Lebensborn archive had been created. I will suggest that this archive became critical for the unique Norwegian construction of the war children as a societal group, and for the subsequent development of a special politics towards the war children. The existence of this archive made it possible to identify the individual war children, to treat them as a specific social group. In other occupied countries, where such an archive didn’t exist, this was not possible. In the early 1950s, the war children ceased to be a national political issue. Their background gradually became unmentionable, a societal taboo invoking shame, and their German traces were hidden from public memory. In 1953, a municipal childcare officer in Oslo wrote: “In the main, all these children with foreign soldier fathers have been included in the population of this country in an excellent way” (Simonsen 2001). However, most War Children would probably disagree with this statement. One of them later wrote, “[a]s a war child one had no fellowship. Not even one’s own family did speak about these terrible things. In my reality as a war child there was simply no one to share these terrible things with” (Borgersrud 2005, 9). In local communities, schools, institutions, and even in their families, a war child’s troubles became individualised, and disconnected from the group’s common troubled past. The Struggle for Justice Then, in the early 1980s, things changed. Post-war issues that had been hidden for almost 40 years were brought into the public domain by novelists, journalists, historians and others. “German girls” and war children came forward with their stories. In 1986, new legislation gave adopted children the right to know who their biological parents were. Consequently, war children approached the archives where the adoption files were kept and became aware of the Lebensborn archive. During the late 1980s and the 1990s more than 1 500 individual war children approached the National Archives alone to find information about their biological family (Olsen 2004, 95). Such things also occurred in other countries that had been under German occupation. But once again Norway became special: the major public issue concerning the war children was not to be the individuals’ search for their biological roots, but their struggle for justice, for restitution for the discrimination and harassment that they had experienced as a result of the state’s politics. In 1986 the Norwegian Association of War Children was established and the organised struggle for justice began. I will not give a broad account of the war children’s struggles. Suffice it to say that they got some results; in 1998 the Norwegian government commissioned the Norwegian Research Council to organise a three-year research project on the war children’s childhood, and in his New Year speech 01.01.2000 the Norwegian prime minister publicly apologised for the state’s treatment of the children. In 2003, a Governmental White Paper (St.meld. 44 2003-04) proposed a special reparation system for war children, which was approved by the Norwegian parliament in 2005. This system, which lasted through 2006 and 2007, allowed individuals who had experienced infringement and persecution in neighbourhoods, at school or by public officials to claim compensation for this. The size of this compensation was to be made dependent on the evidence that each individual might bring forth. If an individual could document “grave suffering, loss or damage”, she or he could get between NOK 20.000 and NOK 200.000. When such documentation couldn't be found, a compensation of maximum NOK 20.000 could be given dependent on individual statements that made it credible that the person in question had been subject to harassment (St.meld. 44 2003-04). The result of the reparation system is as follows, according to official reports: The total number of war children who applied for compensation in 2006-07 were 2 025. By the end of 2007, 1097 cases had been handled. In 2007, 59% of the war children who received compensation got NOK 20 000 or less. In 2006, this percentage was as high as 77% (Justissekretariatene 2007). In other words, a majority of the applicants has not been able to bring forth any “documentation” of their troubles as war children. This illustrates the main problem with the compensation system: The white Paper made the individual compensations dependent on the “documentation” that each war child might produce, but what was meant by the notion “documentation” was not defined. However, in comparable cases “documentation” is usually used synonymously with public records. The Silent Archives The public records documenting the war children may be divided into three parts, according to their provenance. Firstly, the Lebensborn records, which document the war children’s lives until May 1945. After 1945, some of these records were used in legal proceedings to establish paternity and ended up in regional state agencies. Secondly, records created by the central Norwegian government in the conduct of national policies after WWII. In the main, these records document the development of national politics towards the war children as a group. Lars Borgersrud, whose study uncovers the motives and processes behind the state’s war child policies after WW2, states: “The state has created good records, which often are easily accessible. But, of course, they express the authorities’ versions. When the state oppresses, the researcher will be exposed to the oppressor’s understanding of reality” (Borgersrud 2005, 10). In this particular case, I would suggest, Borgersrud’s statement is rather an understatement. Finally, the records created by the local municipal bodies that were responsible for primary schools, public childcare, children's homes and social services. These records should contain evidence of the individual war child as a school child or a child care client. However, these municipal records are incomplete and defective. The main reason for this is poor record creation in the municipal sector, due to the public administration regime of the time. Before the introduction of the legislation on public administration and freedom of information in 1970, public case handling processes were insufficiently documented, especially in smaller organisations like schools, childcare administrations and children’s homes. The records that actually were created were not accessible for clients, so unlike today, the public record- making processes were largely beyond public control (Valderhaug 2004). Furthermore, a considerable part of the records that were created do not exist today. The municipal sector did have a very weak archival tradition; Norwegian municipal archival institutions were established in the 1970s or later. Consequently records may have been lost or destroyed by accident. Lack of archival control may have made it easier for people with something to hide to get rid of archival evidence. Even today, about one-third of Norwegian municipalities are without archival institutions. Consequently, a great part of the records that still may exist are unprocessed, unlisted and unavailable for use. What then, could be said about the private records documenting the war children’s pasts? They must exist, of course; like other individuals the war children have created personal records: diaries, letters, and photographs, and their families, relatives, mothers, grandparents and friends will have created relevant records. However, such personal records are not considered to have the same evidential qualities as organisational records. But, as far as I know, no archival institutions have collected such records. This privileging of public records originates from the assumption that the state and other public bodies are neutral expressions of society, and that the records created by such entities will be impartial by-products of administration. But, as Verne Harris notes, “[r]ecords always already express relations of power and invite the exercise of power (Harris, 241). In this particular case these power relations should be unusually obvious; the records in question were created by the very same public bodies that discriminated against the war children and neglected their needs, and they created the records to justify exactly the same actions. Consequently, the war children's own voices are not present in the Norwegian archival heritage. Towards an Archival Justice The case of the war children confronts the archivist with a number of challenges. Some of these involve the concrete relationships between the archivist and the war child coming to an archives to find records that may or may not exist, others relate to the ethics and praxis of social memory construction. All these challenges are, I will suggest, fundamentally about justice. On the one hand, they are about our relation to individuals seeking some kind of individual justice, a compensation for a troubled past. On the other hand, they address our obligations towards such marginalised groups on the collective level, in their quest for a historical – and archival – justice. The archivist’s role in the documentation of personal rights is to be an archivist. It is not our job to pretend to be lawyers or social workers. It is not for us to decide whether the documentation we are able to find will be sufficient to get reparation or not. It is neither our role to engage in client counselling. We cannot grant people justice. But we can use our knowledge to locate whatever documentation there is to be found, so that the individuals may have their cases tried at the proper authorities. Our role, then, is to supply documentation and put this into the societal and administrative context. And this role is indeed difficult and challenging. As an intermediary between the public and the records themselves, the archivist occupies a position of power in relation to the user. She controls access to the information the user needs and she can – to a certain degree – decide how much of her time and knowledge she will share with him. So how should archivists react when approached by people asking for records documenting injustice, when they know that these records may or may not exist? I will suggest that such cases leave the archivist with two options: She may handle the enquiry in a formally correct manner, just like we handle any other enquiry we get. This will include introducing the user to the finding aids and helping him identifying the records in question, without providing any special service, thus following the recommendations in article 6 in the ICA Code of Ethics offering “impartial advice to all”. If the records exist and can be identified, they will be obtained from the repositories and made available for the user. If they can't be identified, the story usually ends here. But it doesn’t have to end here. There is another option; the archivist may use her archival expertise to uncover to uncover the conditions of record creation in the given period: What administrative procedures may have been used? What kind of information might have been archived in the first place? Is it probable that any of the records might have been lost? Could there be found better information at other archives? And: Is it possible to reconstruct any of the missing documentation from the few traces that may be found? For an archivist, used to handling enquiries from researchers, students and family historians, from people more or less belonging to our professional family, choosing this second option implies encountering the stranger. Individuals that approach the archives to find documentation of injustice committed against themselves, are very often strangers to the archives. They have never been to an archives before; they don’t know how to use our finding aids; they may not even understand the record’s bureaucratic rhetoric. They represent a new kind of users, signifying something new, something unknown, something strange – and sometimes even frightening. They approach us with their demands for justice, with their angst and their hopes, with their wants and their desires; they are coming to change their lives. The archives are strange to them; they know little about what may be found there, but they know that the archives are part of the same public system that some years ago neglected or mistreated them. And they may even be even strangers in the archives, because their lives are poorly documented – and sometimes totally absent – in the records. Today, such requests represent a large and increasing part of the public enquiries in Norwegian archives, especially in the municipal sector. They come from individuals who claim they were abused in children’s homes, individuals who didn’t get the education they we entitled to, people who in some way or another were excluded from the social welfare system that were built in the post-war era, and they come from war children. One archival institution that has recent and important experiences from such matters, is the Bergen City Archives. During the last decade, the City Archives has handled some hundred requests for documentation from former children's homes inmates. Due to the state of the surviving records, tracing one person’s childcare history could often be a time-consuming business. To be able to identify where the records concerning one person might be found, it sometimes even was necessary to sit down and interview the individual to hear his or her personal story. In some cases, these memories were the keys that opened the archives and made it possible to find the relevant documentation (Valderhaug 2005). These experiences suggest that equal rights to archival information can’t be reduced to equal rights to access. It must also include equal rights to benefit from the information in the archives, and a prerequisite for achieving this is to offer unequal and differential services. People with little or no experience with archives will have a greater need for guidance than the experienced reading room visitor. And it is commonly people looking for documentation of personal rights that have the greatest need for assistance from the archivist. The development of such services will obviously take time and resources from other important tasks at an archival institution. Still, there are strong arguments that doing this should be an obligation for an archives serving a democratic society. Jacques Derrida’s states that “effective democratisation can always be measured by this essential criterion: the participation in and access to the archive, its constitution and its interpretation” (Derrida 1996, 4). A living democracy depends on every citizen's right to access, understand and use public information, including current and archival records, for their own individual – or collective – purposes. This right must form an integral part of what might be called an archival justice. However, an archival justice must also include the right to participate in the creation of the archive. For archivists, this raises at least two important issues. A comprehensive discussion of these is beyond the scope of this article, so I will merely indicate the problems. The first issue concerns the archivist’s engagement with current record creation processes in public administration. During the last two decades archivists have spent quite a lot of energy on developing standards and guidelines for electronic recordkeeping, to ensure the enduring authenticity and reliability of electronic records. There has been less attention given to another, but equally important issue: expanding democratic control of the records creation process. In democratic countries, public administration is generally subject to regulations requiring transparency and freedom of information and that decisions should be supported by relevant written documentation. Still, regardless of legislation, public records will be created for certain purposes, reflecting the dominant social and cultural values, and thus reproducing existing power relations. However, the legal structures of transparency and freedom of information might be used to counteract such reproduction. I will suggest that public control of the public record might be crucial to avoid the creation of biased and defective records documenting societal processes, including the marginalised groups of our time: migrant workers, asylum seekers, Muslims, drug addicts, etc. Should archivists – and records managers – use this legislation to promote the creation of “just” records? How could this eventually be done? Is the development of guidelines for democratic control of public recordkeeping a possible answer? The second issue is about the creation of another memory of the past. This might be done by bringing existing records into the public domain, or by collecting or creating new records. Kåre Olsen, archivist at the Norwegian National Archives and responsible for handling the war children's enquiries in the 1990s, was the first researcher to publish a scholarly study on the war children and their mothers (Olsen 1998). He did this for two main reasons: “little had been written on themes like war children... I also found that war children who applied to the National Archives often knew very little of the history of the war children” (Olsen 2004, 107). Thus, Olsen broke the scholarly silence on this issue, and his work was obviously an important cause when the Government commissioned the Norwegian Research Council to start their research project on the war children. Now, in 2009, the war children's reparation system is history. A number of individual war children have received economic compensation for “grave suffering, loss or damage” and some might argue that justice now has been done (as if a destroyed childhood ever can be compensated with money). Still, I will argue, as long as the war children’s own stories are absent from the archives, justice will be superficial. In a couple of decades the most of the war children will have passed away, and their stories may once again pass into oblivion. Only the defective public records will survive. As long as the war children’s own stories remain untold and unrecognised by society, justice will be superficial. The emergence of real justice will be dependent on an archival intervention to collect the war children’s own stories. This implies inviting war children to record their own stories, to archive these stories and make them available for use; thus giving the silenced voices the chance to supplement the existing archival heritage and thereby contribute to the construction of a more democratic and inclusive societal memory. Sources Borgersrud, L (2005): Vi ville ikke ha dem. Scandinavian Academic Press, Oslo. Derrida, J (1996): Archive Fever. University of Chicago Press. Coldrey, B (1993): Good British Stock. Child and Youth Migration to Australia 1901- 83. Identified on the World Wide Web 13 March 2008 at http://www.naa.gov.au/naaresources/Publications/research_guides/guides/childmig/introduction.htm. Fritzsche, P (2005): The Archive and the German Nation, in Antoinette Burton (ed.): Archive Stories. Duke University Press, London/Durham 2005. Harris, V (2007): Archives and Justice. Society of American Archivists, Chicago. International Council on Archives – ICA (1996): Code of Ethics. Identified on the World Wide Web 13 March 2008 at http://www.ica.org/sites/default/files/Ethics-EN.pdf Jørgensen, H (2006): Norske kvinner og tyske soldater. Master thesis, University of Tromsø. Olsen, K (1998): Krigens barn. De norske krigsbarna og deres mødre. Aschehoug, Oslo Olsen, K (2004): Women and Children in the Front Line: The ”Jerry Girls” of Norway and their Children, in: Comma 2004.1 (International Council of Archives) Simonsen, E (2001): Stjålen barndom, 2001. Identified on the World Wide Web 23 March 2008 at http://www.hf.uio.no/ikos/forskning/forskningsprosjekter/vokse_opp/seminarer/10_2001/simonsen.html Simonsen, E and Ericsson, K (2004): Krigbarn i fredstid – sosialpolitiske og profesjonelle føringer i synet på norsk-tyske krigsbarn 1945-47. University of Oslo, Department of Criminology and Sociology of Law, K-series 1/2004. St.meld. 44 (2003-04) Erstatningsordning for krigsbarn og erstatningsordninger for romanifolk/tatere og eldre utdanningsskadelidende samer og kvener. Identified on the World Wide Web 23 September 2006 at http://www.regjeringen.no/nb/dep/jd/dok/regpubl/stmeld/20032004/Stmeld-nr-44-2003-2004- .html?id=198295&epslanguage=NO Valderhaug, G (2003): Recordkeeping in Local Government in Norway 1950–2000. In Archival Science Vol. 3, No. 2. Valderhaug, G (2005): Memory, Archives and Justice. Identified on the World Wide Web 17 October 2007 at http://depotdrengen.wordpress.com Valderhaug, G (2007): The Good Archivist. Identified on the World Wide Web 17 October 2007 at http://depotdrengen.wordpress.com http://www.naa.gov.au/naaresources/Publications/research_guides/guides/childmig/introduction.htm http://www.ica.org/sites/default/files/Ethics-EN.pdf http://www.hf.uio.no/ikos/forskning/forskningsprosjekter/vokse_opp/seminarer/10_2001/simonsen.html http://www.regjeringen.no/nb/dep/jd/dok/regpubl/stmeld/20032004/Stmeld-nr-44-2003-2004-.html?id=198295&epslanguage=NO http://www.regjeringen.no/nb/dep/jd/dok/regpubl/stmeld/20032004/Stmeld-nr-44-2003-2004-.html?id=198295&epslanguage=NO http://depotdrengen.wordpress.com/ http://depotdrengen.wordpress.com/ Årsrapport fra Justissekretariatene 2007. Identified on the World Wide Web 23 October 2008 at http://www.justissekretariatene.no/upload/Om%20Justissekretariatene/Årsrapport%2 02007.pdf http://www.justissekretariatene.no/upload/Om%20Justissekretariatene/Årsrapport%202007.pdf http://www.justissekretariatene.no/upload/Om%20Justissekretariatene/Årsrapport%202007.pdf 
work_belcuinjffejvnenqovt6xvs2a	----	Theories of Social en Economic Justice Th eor ies o f So cia l an d E co no m ic J us tic e Theories of Social and Economic Justice T h eories of S ocial an d E con om ic Ju stice A J van d er W alt Edited by AJ van der Walt T he bulk of the contributions in Theories of Social and Economic Justice originated in a research project initiated by the Stellenbosch Institute for Advanced Study (STIAS) in 2002. STIAS hosted a workshop in July 2004 in which researchers from Law, Economics, Theology and Sociology participated, and some of the contributions at the workshop were subsequently reworked into chapters for this book. In addition, colleagues, both in South Africa and abroad, who had not participated in the workshop but whose recently published work on social and economic justice fitted in with the project extremely well, gave permission to re-publish their articles in the book. The book is based on the idea that the attainment of greater social and economic justice, specifically in the South African context, is strongly influenced by the implications and the coherence of various theories of social and economic justice. Furthermore, it is argued that the promotion and protection of social and economic justice need to be approached from different theoretical perspectives when considering different practical circumstances, contexts and dilemmas. One theoretical size simply does not fit all, as far as social and economic justice is concerned. The range of theoretical approaches represented in this book – legal, economic, theological and sociological – is testimony to the truly cross- and multi-disciplinary nature of the contributions. Apart from leading South African scholars in Law, Economics, Theology and Sociology, four contributions from American academics are included: Professors Gregory Alexander (Cornell Law School), William Forbath (University of Texas), Lucy Williams (Northeastern University), and Ross Zucker (Lander College). AJ van der Walt is professor in the Faculty of Law at Stellenbosch University and author of Constitutional Property Clauses: A Comparative Analysis (1999) and Constitutional Property Law (2005). He is also a co-editor, with H Botha and J van der Walt, of Rights and Democracy in a Transformative Constitution (2004, AFRICAN SUN MeDIA). THEORIES finaal Q5 2/8/05 9:15 Page 1 A Research Project of the Stellenbosch Institute for Advanced Study The Stellenbosch Institute for Advanced Study (STIAS) is a high-level research institution dedicated to keep Africa at the forefront of inter- national scientific developments. It facilitates innovative and inter- disciplinary research on issues that are of special relevance to the continent. It does so by inviting leading researchers from all over the world to work in close interaction with their counterparts from Africa. By including younger researchers in its projects, it contributes to the development of a next generation of scholars. Website: http://academic.sun.ac.za/stias/ Theories of Social and Economic Justice edited by AJ VAN DER WALT Professor, Faculty of Law, Stellenbosch University SUN PRESS is a division of AFRICAN SUN MeDIA, Stellenbosch University’s publishing division. SUN PRESS publishes academic, professional and reference works in electronic and print format. This publi- cation may be downloaded or ordered directly from www.sun-e-shop.co.za. Published by SUN PRESS, a division of AFRICAN SUN MeDIA, Victoria Street, Stellenbosch 7600, South Africa www.africansunmedia.co.za All rights reserved. No part of this book may be reproduced or transmitted in any form or by any electronic, photographic or mechanical means, including photocopying and recording on record, tape or laser disk, on microfilm, via the Internet, by e-mail, or by any other information storage and retrieval system, without prior writ- ten permission by the publisher. First edition 2005 ISBN 1-919980-82-2 Cover design by Laura Oliver Typesetting by Felini Studio Set in 10 on 12.5 pt Sabon Printed and bound by US Printers, Ryneveld street, Stellenbosch 7600 Copyright permissions William Forbath ‘A not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present‘ first appeared in (2004) 39 Tulsa Law Review 597-638. © W Forbath and Tulsa Law Review. Reprinted here (with minor editorial changes) with the kind permission of W Forbath and Tulsa Law Review. Sandra Liebenberg ‘The Value of Human Dignity in Interpreting Socio-Economic Rights‘ first appeared in (2005) 21 South African Journal on Human Rights 1-31. © S Liebenberg and Juta & Co, publishers of SAJHR. Reprinted here (with minor editorial changes) with the kind permission of S Liebenberg, I Currie (editor of SAJHR) and Juta & Co. Charles Ngwena ‘The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism‘ first appeared in (2004) 37 De Jure 290-312. © C Ngwena. Reprinted here (with minor authorial and editorial changes) with the kind permission of C Ngwena and De Jure, the editor of De Jure and Lexis-Nexis Butterworths. Theunis Roux ‘Pro-Poor Court, Anti-Poor Outcomes: Explaining the Performance of the South African Land Claims Court‘ first appeared in (2004) 20 South African Journal on Human Rights 511-543. © T Roux and Juta & Co, publishers of SAJHR. Reprinted here (with minor editorial changes) with the kind permission of T Roux, I Currie (editor of SAJHR) and Juta & Co. Lucy Williams ‘Beyond Labour Law’s Parochialism: A Re-Envisioning of the Discourse of Distribution’ first appeared in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) Oxford University Press 93-114. © L Williams and Oxford University Press. Reprinted here (with minor editorial changes) with the kind permission of L Williams, J Conaghan, RM Fischl and K Klare and Oxford University Press. Contents PREFACE 1 GREGORY S ALEXANDER 6 Socio-Economic Rights in American Perspective: The Tradition of Anti-Paternalism in American Constitutional Thought DANIE BRAND 17 The ‘Politics of Need Interpretation’ and the Adjudication of Socio-Economic Rights Claims in South Africa STAN A DU PLESSIS 37 New Tools for the Constitutional Bench FANIE DU TOIT 56 Social Justice and Theological Method WILLIAM FORBATH 72 A not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present DERIK GELDERBLOM 108 The Just Community: Emile Durkheim on Liberalism and Society NICO N KOOPMAN 128 Theology and the Fulfilment of Social and Economic Rights: Some Theoretical Considerations SANDRA LIEBENBERG 141 The Value of Human Dignity in Interpreting Socio-Economic Rights ELSABE LOOTS 168 The Fiscal Implications of Social and Economic Justice: An Overview of the Changing Theoretical Framework CHARLES NGWENA 179 The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism THEUNIS ROUX 199 Pro-Poor Court, Anti-Poor Outcomes: Explaining the Performance of the South African Land Claims Court DIRKIE J SMIT 225 On Social and Economic Justice in South Africa Today: A Theological Perspective on Theoretical Paradigms LUCY A WILLIAMS 239 Beyond Labour Law’s Parochialism: A Re-Envisioning of the Discourse of Redistribution ROSS ZUCKER 256 Opening the Door to More Equality BIBLIOGRAPHY 291 CASES 309 LEGISLATION AND POLICY DOCUMENTS 312 INDEX 314 Preface The bulk of the contributions that make up this book originated in a research project initiated by the Stellenbosch Institute for Advanced Study (STIAS) in 2002. The Director of the Institute, Bernard Lategan, asked me whether I would be interested in running a research project with STIAS; I proposed a project on Theories of Social and Economic Justice, which was accepted; and the result was that STIAS hosted a workshop in July 2004 in which researchers from Law, Economics, Theology and Sociology participated. One distinguished participant was a STIAS Research Fellow at the time, Gregory S Alexander (Cornell Law School).1 The contributions at the workshop were of such a standard and the debate so interesting that everybody agreed that it would be useful to publish some of the papers resulting from the presentations. Participants were therefore invited to submit papers for publication. Johan van der Walt (University of Johannesburg) and Dr Tessa Marcus (National Research Foundation), both of whom attended the workshop, helped me decide which of the presentations were suitable for publication and made suggestions on possible amendments and revisions. The end result was a group of very interesting papers dealing with various theories of social and eco- nomic justice. However, because of the fairly rigorous review process the selected contributions were just not quite substantial enough for a full-scale publication and I had to either supplement the selected papers or abandon the publication project. One or two of the participants published extended versions of their workshop presentations or related work in peer-reviewed journals and agreed to these articles being re-published here.2 To flesh out the intended publication I also approached a number of colleagues, both in South Africa and abroad, who had not participat- ed in the workshop but whose recently published work on social and economic justice fitted in with the project extremely well, and I asked them for permission to re-publish their articles and essays together with the ones selected from the workshop. They all graciously agreed, and the result is the book you have in your hands now.3 The idea for the STIAS project on Theories of Social and Economic Justice had its origin in an article I had written in 2002 for a collection of South African essays in honour of US schol- ar Frank I Michelman.4 In that article, I developed the thought that the attainment of greater social and economic justice, specifically in the South African context, was strongly influenced 1 Prof Alexander’s work on social and economic justice includes GS Alexander ‘The Concept of Property in Private and Constitutional Law: The Ideology of the Scientific Turn in Legal Analysis’ (1982) 82 Columbia LR 1545-1599; GS Alexander Commodity & Propriety: Competing Visions of Property in American Legal Thought 1776-1970 (1997). 2 Sandra Liebenberg ‘The Value of Human Dignity in Interpreting Socio-Economic Rights‘ first appeared in (2005) 21 SAJHR 1-31; Theunis Roux ‘Pro-Poor Court, Anti-Poor Outcomes: Explaining the Performance of the South African Land Claims Court‘ first appeared in (2004) 20 SAJHR 511-543. 3 William Forbath ‘A not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present‘ first appeared in (2004) 39 Tulsa Law Review 597-638; Charles Ngwena ‘The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism‘ first appeared in (2004) 37 De Jure 290-312; Lucy Williams ‘Beyond Labour Law’s Parochialism: A Re-Envisioning of the Discourse of Distribution’ first appeared in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) Oxford University Press 93-114. Ross Zucker kindly agreed to write a sub- stantially new contribution for this volume, based on the theoretical worked that underlies his recently pub- lished book Democratic Distributive Justice (2002). 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E by the implications and the coherence of various theories of social and economic justice. One of my central hypotheses in that article was borrowed from Frank Michelman, namely that my approach would be what Michelman described as ‘provisional adoption, as inchoate legal doc- trine, of a theory of social justice.’5 In other words, I accepted that theory does make a differ- ence on the struggle for greater social and economic justice, but nevertheless argued that the best approach was not to develop a single, coherent and all-encompassing grand theory but rather to uncover the strengths and the weaknesses of several theoretical approaches for differ- ent contexts and circumstances.6 In doing so I was aware of the danger of facile eclecticism and tried to avoid it – the fact that several theoretical approaches could have different benefits in various contexts does not mean that they are all relatively or equally useful or valid; in fact, sev- eral theories are subjected to strong criticism in the article. The ‘new property’ theories based on Charles Reich’s work,7 for instance, are subjected to a critique that implies that these theo- ries are not suitable for arguments in favour of state provision of access to social and econom- ic benefits.8 Equally strong criticism is leveled at equality-based theories, partly relying on a cri- tique developed by Michelman.9 On the other hand, however, equality-based theories have proven to be particularly useful and strong when attacking state provision of social and eco- nomic support on the basis of non-participation, lack of access or unfair denial and termina- tion; just as the property-based theories are very useful when protecting already vested and acquired benefits from amendment or termination. In short, the article concluded that the pro- motion and protection of social and economic justice need to be approached from different the- oretical perspectives when considering different practical circumstances, contexts and dilem- mas. One theoretical size simply does not fit all, as far as social and economic justice is con- cerned. In the process of developing and making this argument I concentrated quite strongly on the central distinction between rights-based and needs-based theories of social and economic jus- tice, partly because of Michelman’s pivotal role in emphasizing the distinction and the impor- tance of the often ignored needs-based arguments.10 The theoretical arguments on either side of this divide have both weaknesses and strengths, which underlines the central finding that a variety of even seemingly contradictory theoretical approaches could offer useful insights when developing strategies for the promotion and protection of social and economic justice. Rights talk has serious shortcomings and has quite rightly been criticized very harshly; needs talk poses considerable theoretical and moral problems that detract from its intuitive appeal; but never- theless the experience of the impoverished and the marginalised in post-apartheid South Africa has shown convincingly that both kinds of rhetoric may have their place in strategic thinking about social and economic transformation. When faced with the stark reality of the utterly and 4 The book was published as H Botha, A van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2003). My essay, entitled ‘A South African Reading of Frank Michelman’s Theory on Social Justice’, appeared at 163-211. It was subsequently re-published in (2004) 19 SA Public Law 253-307. I refer to the original pagination in Botha, van der Walt & van der Walt here. 5 Van der Walt (note 4 above) at 180, citing FI Michelman ‘The Supreme Court 1968 Term – Foreword: On Protecting the Poor through the Fourteenth Amendment’ (1969) 83 Harvard LR 7 at 10. 6 In van der Walt (note 4 above) at 204ff I described this process as ‘twisting rope’. 7 C Reich ‘The New Property’ (1964) 73 Yale LJ 733; C Reich ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale LJ 1245. 8 Van der Walt (note 4 above) at 168. 9 Van der Walt (note 4 above) at 174. hopelessly destitute, those who have lost even whatever access to rudimentary shelter and safe- ty they had through natural disaster or social upheaval, there is just no place for a hard-nosed approach based on rights talk, and a different attitude is required. To their credit, the South African courts have shown a growing awareness of this need for different approaches in differ- ent circumstances, and they have been particularly successful in developing a context-sensitive and weakness-aware approach to the position of those who cannot claim anything within the parameters of a strictly rights-based discourse.11 However, in another context it is equally valid to abandon the softer approach of needs talk and resort to the harder, more self-confident rhet- oric of rights when that is the best way of protecting rights already acquired.12 The article had three theoretically interesting implications that informed the STIAS project. Firstly, I concluded that ‘theory matters’; in other words, theory makes a difference in the prac- tical, legal and political struggle around social and economic justice. The struggle for social and economic justice was not theory-innocent, theory-neutral or theory-agnostic; in fact, it was very directly and clearly informed and influenced by theoretical assumptions, even when those assumptions were taken for granted and never questioned, discussed or even clearly articulat- ed. Whenever a particular instance of legislative drafting, policy formulation, administrative action or judicial decision-making avoided or ignored theoretical arguments or approaches completely, the result was not that it was theory-neutral but rather that it simply accepted and confirmed the ‘normality assumption’,13 that set of theoretical assumptions accepted without thinking by the majority of a particular interpretive community at a certain time. The second implication was, in the tone of a hypothesis, that theory had restraining as well as energizing effects on the promotion of social and economic justice, because the more or less automatic reliance of the ‘normality assumption’ or default position would usually resist change and affirm the status quo. Moreover, lack of theoretical development could result in a kind of ‘theory drag’ in the sense that practical political development could sometimes outstrip theo- retical thinking, creating a vacuum of nonexistent theoretical explanation, justification and inspiration that could hold development back even when the political will to promote it is strong. This effect was clearly visible in the South African situation ever since the promulgation of the new democratic constitutions in 1993 and 1996: political development easily outpaced academic efforts to produce and develop suitable, useful theoretical work that could serve as inspiration and reflective material for policy making, and ever since academics have more or less been doing their utmost to catch up with – rather than prompt, inspire or challenge – pol- icy making and legislative processes. The third conclusion was already alluded to earlier: theoretical interest for and the effect of theory on the promotion of social and economic development reflect a wide range of different kinds and levels of theoretical thinking, ranging from legal doctrine through political philoso- phy to critical theory, from due process-based theories of political organization, division of powers and judicial law-making to social theories of individualism, community and the ethics Preface 3 10 Van der Walt (note 4 above) at 196-204. In his contribution to this book Forbath analyses Michelman’s con- tribution and arguments in depth. 11 Particularly in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); but see further in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC). 12 E g in Nhlabati and Others v Fick 2003 (7) BCLR 806 (LCC). 13 A phrase coined by Rosemary Coombe ‘”Same as it Ever Was”: Rethinking the Politics of Legal Interpretation’ 1989 McGill LJ 603-652. 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E of care. Legal theory, political theory, social theory, economic theory, theological thinking and many other fields of theoretical endeavour could possibly cast useful light on the dynamics that either promote or inhibit the promotion of social and economic justice. The project therefore had to be a cross- or multi-disciplinary one. The question was: are there any benefits to be had from discussing social and economic justice from the perspective of these theoretical hypothe- ses in different disciplines? Is it worthwhile to investigate the notion that theoretical assump- tions and paradigms affect the promotion of social and economic justice; or the idea that the- ory drag could inhibit social and economic development? The participants in the STIAS workshop took on the challenge to discuss the ideas that ‘the- ory matters’ and of ‘theory drag’ and developed them in the fields of economic theory, social philosophy, theological thinking and legal theory. The range of theoretical approaches repre- sented in this book exemplifies the success of their efforts, and the fact that it made more sense to arrange the contributions alphabetically rather than thematically is testimony to the truly cross- and multi-disciplinary nature of the contributions. The most obvious way of arranging the contributions, namely according to broad subject (law, economics, theology) was preclud- ed by the fact that economists and theologians involved themselves deeply in legal theory (Stan du Plessis, Dirkie Smit, Fanie du Toit), just like lawyers, theologians and sociologists involved themselves deeply in economic theory (Ross Zucker, Derik Gelderblom and Fanie du Toit). The range of theoretical approaches from which the importance and the potential effect of theory on social and economic justice are analysed in the contributions to this book is surpris- ingly wide, although there is a perhaps predictably strong interest in the conflicts between social and communitarian theories and individualist, liberal theoretical approaches (Smit, Koopman, Liebenberg, Brand, Roux, Gelderblom, Ngwena, Forbath, Alexander, Williams). Several con- tributors investigate different versions of what could be described as a dialogic or discursive theory of rights (Nico Koopman, Danie Brand), while others discuss different institutional the- ories of rights (Stan du Plessis, Theunis Roux, Ross Zucker). One of the fairly general conclu- sions that could be drawn from the contributions as a whole is that liberal, individualist theo- ries could tend to inhibit the promotion of social and economic justice in so far as these theo- ries rely strongly on individual rights, whereas social and economic justice at least sometimes requires state-sponsored actions that are not premised on the existence of such rights (Liebenberg, Roux, Brand, Ngwena). These general conclusions are supported by more detailed and contextual analyses of the promotion of social and economic justice in very specific areas such as labour (Williams), land reform (Roux), and health services (Ngwena), from which more general arguments about social and economic justice follow. The value of these analyses is enhanced by the comparative theoretical contributions from US scholars (Alexander, Forbath, Williams and Zucker) and by historical perspectives (Alexander, Forbath, Ngwena). In sum, these contributions constitute a valuable source of theoretical insight and argument about social and economic justice, particularly about the role of theory in either promoting or inhibiting the advancement of justice. A number of people contributed to the success of the STIAS workshop and the resulting book. Bernard Lategan, the director of STIAS, provided continuing financial, intellectual and institutional support for the whole project. Johan van der Walt and Tessa Marcus contributed intellectual insight in and rigour to the evaluation and selection of presentations. Gerhard du Toit provided enthusiastic assistance with the editing of contributions and he also compiled the bibliography and index. All the participants in the STIAS workshop, both those who present- ed papers and the discussants, helped to generate valuable discussion and intellectual exchange from a variety of disciplines. The participants who submitted contributions to this book assist- ed in taking the discussion further and in developing the ideas and insights into something that can form the basis for continuing debate. Contributors who agreed to write new work or to re- publish their earlier work in the book made it possible to produce a more extensive and wide- ranging collection of readings. Journals, editors and publishers who agreed to re-publication graciously allowed us to produce this wider collection of contributions. STIAS and Sun Press generously agreed to assist in publishing what is an extremely interesting but in many respects probably not very profitable book. I would like to extend my warm and heartfelt gratitude to them all. André van der Walt Stellenbosch May 2005 Preface 5 Socio-Economic Rights in American Perspective: The Tradition of Anti-Paternalism in American Constitutional Thought G R E G O RY S A L E X A N D E R Robert Noll Professor of Law, Cornell University, Ithaca, NY I Introduction As many constitutional law scholars have noted, with respect to socio-economic rights, American constitutional law is an outlier. While many, perhaps even most, of the world’s con- stitutions recognize at least some socio-economic rights, either textually or through judicial inter- pretations, the US Constitution does not. Individuals have no basis under the American consti- tution for asserting positive claims against the state for the provision of even the barest of neces- sities. Nor is there any basis for constitutional socio-economic rights even as aspirational goals. Why is this the case? Why has American constitutional law never recognized socio-econom- ic interests as rights that entitle individuals to substantive protection, even aspirationally? Professor Cass Sunstein has argued that the best explanation focuses on a particular historical moment when a change in the membership of the US Supreme Court undermined the only opportunity that has existed for the Court to recognize constitutional socio-economic rights.1 In making this argument, Sunstein rejects several other possible explanations, including expla- nations that look to American legal traditions and culture. In this brief essay, I shall suggest that while Sunstein’s self-styled ‘Legal Realist’ explanation is correct as far as it goes, it is incomplete. Sunstein too quickly rejects legal culture and tradition as the key to understanding why American constitutional jurisprudence has historically not given sub- stantive protection to socio-economic interests. A deeper look at the traditions of American legal jurisprudence reveals that the continual presence of a distinctive social vision in constitutional thought that is fundamentally at odds with the idea of constitutional socio-economic rights. This social vision is that of anti-paternalism. Anti-paternalism has both framed the way in which American judges view socio-economic interests and created a strong presumption against any full- scale recognition of such interests as substantively-protectable constitutional rights throughout American constitutional history, though such rights certainly do exist as a statutory matter. The explanation for America’s failure to recognize socio-economic rights at a constitutional level results, I will argue, from a combination of two factors: the legal-political culture of anti-paternalism and the institutional character of constitutional rights in the American political and legal sphere. 1 CR Sunstein The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (2004). In focusing on the culture of anti-paternalism, I am not proposing a monist theory. Anti-pater- nalism has not been the exclusive social vision throughout American history. Another social vision has also been available in American constitutional thought, and this alternative vision might have been exploited to support the recognition of constitutional socio-economic rights as compatible with the traditions of American constitutionalism. This is the social vision of civic republicanism. While civic republican ideas have not been ascendant in American constitution- al jurisprudence since the 18th century, their presence has been felt at particular moments and may yet be felt again. Civic republicanism, however, is a recessive gene in American’s constitu- tional genetic order. It seems highly unlikely to have the kind of strength necessary to generate the constitutional mutation that would yield a new species of individual rights in the American system. Moreover, there are substantive aspects of civic republicanism, particularly its historic hierarchical and exclusionary characteristics, that make it a weak candidate for supporting sub- stantive socio-economic rights as a constitutional matter. Before explaining why American constitutional law has never recognized socio-economic interests as basic rights, I need first to establish that in fact they have not, at least not overtly or robustly. I will then turn to the question of explanation and briefly sketch the anti-paternal- ist social vision that has made the idea of socio-economic interests as substantive constitution- al rights seem uncongenial, if not anathema to the American legal mind. II Socio-Economic Interests In American Constitutional Jurisprudence The appropriate starting place in any study of the status of socio-economic rights in American constitutional law is the familiar distinction in liberal thought between positive and negative rights. Positive rights, orthodox liberal thought tells us, impose affirmative obligations on the state to act on behalf of the individual. They compel the state to reach into its pocket to make provi- sion for certain individual needs. They remove from the realm of governmental discretionary judg- ment the decision about whether to ensure that individual citizens enjoy the basic material condi- tions necessary for both civic participation and personal self-development. Negative rights, by contrast, restrain the state from acting, rather than requiring, as positive rights do, its affirmative action on behalf of individuals. They are ‘checks,’ that is, means of protecting individuals from governmental actions that unduly impinge on a sacred sphere of personal autonomy. Classical lib- eral legalism considers negative rights as real rights and positive rights as unpalatable pretenders. This distinction between negative and positive rights is the appropriate starting place for under- standing the place of socio-economic interests in American constitutionalism because American constitutional thought invariably labels socio-economic rights as positive rights and, as such, ersatz rights. The commonplace understanding in the United States is that constitutional rights are exclusively negative rights. Judge Richard Posner has pithily expressed what is in most American constitutional law circles regarded as bedrock truth: the American Constitution ‘is a charter of negative rather than positive liberties.’2 Posner further explains, ‘The men who wrote the Bill of Rights were not concerned that Government might do too little for the people, but that it might do too much to them.’ What Posner is telling us is that there is no constitutional right to socio- economic benefits,3 nor will such a right ever exist in the American constitutional scheme. Socio-Economic Rights in American Perspective 7 2 Jackson v City of Joliet 715 F 2d 1200, 1203 (7th Cir) cert denied 465 US 1049 (1983). 3 DP Currie ‘Positive and Negative Constitutional Rights’ (1986) 53 Univ of Chicago LR at 864, 864. 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Posner’s assessment is misleading in several respects. Consider first his unexamined reliance on the conventional distinction between negative and positive rights. The distinction between the two is less categorical than first meets the eye. A central insight of the American Legal Realists was that so-called negative rights are in fact interventionist in character. The exercise of such rights require government assistance, most conspicuously through enforcement. Indeed, Bentham pointed out that property rights would not exist in the absence of state power. The dependence of negative rights on affirmative state action makes the distinction between posi- tive and negative rights much less clear than Posner and classical liberal theory recognize. A second reason why Posner’s dismissal of positive rights from the pantheon of American constitutional rights is inaccurate is the fact that although American constitutional rights tra- ditionally have been negative in nature, positive rights are not entirely unknown in American constitutional jurisprudence.4 Many American state constitutions contain affirmative guaran- tees of specific socio-economic interests, such as education.5 The New Hampshire Constitution of 1784 even constitutionalized the Lockean social compact by conferring on every citizen ‘the right to be protected . . . in the enjoyment of his life, liberty, and property.’6 More important perhaps, the American Supreme Court, while generally rebuffing efforts to recognize positive constitutional rights, has recognized positive rights in a few instances. In 1956, the Court held that the equal protection clause requires states to provide trial transcripts (or their equivalent) to poor people appealing their criminal convictions.7 A decade later, the Court held that state poll taxes violate the Constitution. The effect of that ruling was that states must provide the vote free of charge despite the fact that this imposes costs on the state.8 To some extent, then, it is inaccurate to say that the American Constitution does not recognize any positive socio-economic rights or rights that require the state to reach into its pocket. Posner might object that the recognition of rights such as these does not prove very much with respect to socio-economic interests. In these cases the Court recognized positive rights only when the meaningful exercise of some independent and fundamental aspect of citizenship, such as the right to vote or to prove criminal innocence, required the provision of economic benefits by the state. That is not the case with respect to socio-economic rights. It is worth pausing for a moment on just what we mean when we speak of ‘socio-econom- ic rights.’ Liberals (classical liberals) consider socio-economic rights to be ‘second-generation rights,’ with the first generation being classical liberal negative rights. In modern times, they were first introduced into the American political and legal lexicon in a serious way in President Franklin D Roosevelt’s famous Second Bill of Rights address to Congress.9 Roosevelt’s Second Bill of Rights, which, along with the Universal Declaration of Human Rights, inspired the social rights provisions of many modern constitutions,10 included not only welfare rights but work- related rights as well. Thus, among the rights Roosevelt specified were ‘[t]he right to earn enough to provide adequate food and clothing and recreation’ and ‘[t]he right to a useful and remunerative job in the industries or shops or factories or mines of the Nation.’ Roosevelt 4 See DP Currie The Constitution of the Federal Republic of Germany (1994) at 14. 5 See eg Ill Const Art X § 1. 6 NH Const Pt I Art 12 (1784). 7 Griffin v Illinois 351 US 12 (1956). 8 Harper v Virginia Board of Elections 383 US 663 (1966). 9 FD Roosevelt ‘Objectives of the Administration’ (June 8, 1934) in The Public Papers and Addresses of Franklin D Roosevelt (1938) vol 3 at 291-92. 10 WE Forbath ‘Not So Simple Justice: Frank Michelman on Social Rights 1969-Present’ (2004) 39 Tulsa LR 597 at 598 fn 7. See reprint in this volume at 72. grouped these rights together with welfare rights like ‘[t]he right of every family to a decent home,’ ‘the right to adequate medical care and the opportunity to achieve and enjoy good health,’ and the right to ‘social security.’ Since Roosevelt’s time, most of the attention in the US has been directed to welfare rights rather than work rights (though recently some progressive scholars have refocused attention on work rights11). Welfare rights are the sorts of rights that most proponents of constitutional socio-economic rights have in mind, and it is these sorts of rights that, as Judge Posner correctly suggests, have never been recognized in American consti- tutional law.12 The most sustained effort to gain constitutional recognition of welfare rights in the United States occurred during the late 1960s and early 1970s, the height of the War-on-Poverty era. The type of rights that activist lawyers urged the Court to recognize were welfare rights. The legal theory that many of these lawyers used was the so-called ‘New Property’ theory proposed by Yale law professor Charles Reich in a famous 1964 article by that name. Reich argued that what he called government ‘largesse,’ a broad collection of government benefits including both welfare transfer payments and employment-related licenses, should be constitutionally protect- ed as property since in the modern welfare state they serve the same function as traditional forms of property. Welfare-rights lawyers gained some Supreme Court victories in the 1970s, but these victories do not contradict my claim that American constitutional jurisprudence has never recognized socio-economic interests as substantively-protected rights. While the ‘New Property’ cases do represent the highwater mark of the most serious effort to introduce socio- economic interests into the realm of constitutionally-protected individual rights, they fell far short of the goal of entrenching personal economic welfare as substantive constitutional right. In its broadest ruling on the ‘New Property’ theory, the Supreme Court in Goldberg v Kelly held that the Fourteenth Amendment’s due process clause requires that a welfare recipient be given an evidentiary hearing prior to termination of benefits. Citing Reich’s article, Justice Brennan wrote, ‘It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law forms of property.’ Brennan’s opinion, however, said nothing to indicate that the Court was prepared to recognize a substantive right to welfare. Although so distinguished an academic commentator as Frank Michelman viewed the opinion as signaling a willingness to consider that a right to subsistence may legitimately be found in some provision of the Constitution, there was really nothing in the Court’s opinion to suggest that the state was under a constitutional obligation to create any welfare program.13 Any pos- sibility that the Court might so expand on its tenuous acceptance of Charles Reich’s theory was soon dashed when the Court, in Dandridge v Williams held that a state family-assistance law was valid even though its cap on maximum payments left many families living at state-recog- nized poverty levels. And just two year later, the Court, in upholding a state’s summary evic- tion procedure, baldly stated that the ‘Constitution does not provide judicial remedies for every social and economic ill.’ The Constitution, said the Court, does not provide a ‘guarantee of access to dwellings of a particular quality.’ However slightly the door to judicial recognition of some kind of substantive constitutional right of welfare might have been opened by Goldberg v Kelly, it was emphatically closed in these later cases. Since that time, the door has remained shut and securely locked. Socio-Economic Rights in American Perspective 9 11 See ibid. 12 See Currie (note 3 above) at 866. 13 See Currie (note 3 above) at 872. 1 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E III Sunstein’s Explanation Why has this been our history? Why have American courts refused to read into the Constitution any sort of substantive right to even the barest of welfare needs? Professor Cass Sunstein has examined four possible explanations. Three are theories that other writers have offered to explain why socio-economic interests are not protected as constitutional rights in the American legal system. Rejecting all three of these, Sunstein proposes a fourth theory. It is worth a brief look at the first three because all have surface plausibility. The first of these theories is a chronological theory. This theory points to the fact that the American Constitution is an 18th century document. At that time, constitutional rights, which were still in their infancy, simply weren’t thought of as including social and economic guar- antees. Created against the backdrop of monarchical governments, classical constitutional rights were barriers against abuses of state power. This was certainly the English tradition, and that tradition was the template for all constitutional bills of rights created during the classical era. The difficulty with this explanation, Sunstein points out, is the American Constitution has hardly been a static document. It has been formally amended, sometimes in quite dramatic ways. Yet at no point in American history, not even the late 1960s or early 70s, has there ever been serious discussion of amending the Constitution to include substantive welfare rights. Moreover, the original meaning of the American Constitution has also been changed, some- times quite sharply, through the process of judicial interpretation, yet never for the purpose of introducing socio-economic rights. Chronology alone cannot explain this fact. The second theory that Sunstein considers and rejects is pragmatic and institutional. The basic argument is that American constitutional rights have been pragmatic rights, rights that are capable of being judicially enforced. They are not simply expressive of our deepest values. They may well have expressive content, but they are not solely expressive. The nearly-universal view of constitutional rights among American lawyers, scholars, and courts is that they are tools for implementing actual legal, political, and social change. Aspirational rights have had no place in our constitutional history, unlike that of many countries whose constitutions have recognized socio-economic rights. This strongly pragmatic understanding of constitutional rights is closely related to the role of courts as interpreters of the Constitution. Judicial review has long been the central preoc- cupation in American constitutional thought and practice, and there is a widely-held view that a substantive constitutional right to social welfare cannot easily coexist with judicial review. Courts, many constitutionalists believe, are simply unable to enforce a constitutional provi- sion mandating health care, housing, or even food. Such a constitutional provision would end up being an empty promise, mocking the very idea of what a constitutional right is supposed to be. Sunstein perceptively points out the flaws in this explanation as well. For one thing, while the Federal Constitution lacks a constitutional right to social welfare, many state constitutions do not. The experience with those provision has been mixed, but at least in some of the states courts have been somewhat willing to enforce their social and economic rights.14 Moreover, as Sunstein points out, the fact that courts would be unable completely to enforce a constitution- al guarantee regarding housing or employment would hardly be unique in our constitutional 14 See eg Tucker v Toia 371 NE 2d 449 (NY 1977). experience. The same is true of our existing, negative rights. As he says, ‘[T]he prohibition on unreasonable searches and seizures [is] violated every day.’15 What courts could do is to prompt legislatures to create programs aimed at fulfilling the constitutional guarantee or adequate housing or health care and to exercise at least a modicum of supervision over those programs. American federal courts have undertaken such supervisory functions in the context of other constitutional rights. While their performance in this capacity has perhaps been less than ideal, there is no evidence that the fact that they have fallen short of completely implementing the rel- evant constitutional right has undermined public confidence in the meaningfulness of the right itself. So, this pragmatic explanation, like the chronological explanation, is at best incomplete. The third explanation that Sunstein examines is one that I think he dismisses too quickly. I will briefly mention it at this point and come back to it later to offer a variation on it. The explanation is cultural in nature. It is the familiar story of American exceptionalism. Specifically, the theory is that the absence of social welfare rights from the list of American con- stitutional rights can be traced to the absence of socialism in our political history. Since social- ism has never been a significant force in American political ideology, the theory goes, it is hard- ly surprising that there has been a major effort to inject what are, after all, essentially socialist- style rights in the Federal Constitution. Responding to this theory, Sunstein does not doubt that socialism has never played a major role in American politics, nor does he question the connec- tion between social welfare rights and socialist forces in countries that have recognized consti- tutional socio-economic rights. He argues instead that a strong socialist movement is neither a necessary nor a sufficient condition for social and economic rights.16 There are example of countries with strong socialist movements but no constitutional socio-economic rights (Sunstein cites Canada and Israel), and he says one can easily imagine that a country without a socialist past might be inspired to give constitutional recognition to social welfare rights. After all, President Roosevelt, who despite some of his contemporary detractors was no socialist, did call on Congress to adopt his Second Bill of Rights as a legislative matter. Why not as a constitu- tional matter? The answer, Sunstein asserts, must lie elsewhere. He finds the answer in his fourth theory, a theory that he labels ‘Realist,’ in a gesture to the American Legal Realists who contended that constitutional law, like all law, is a matter of con- crete human actions and human personalities.17 Here, in a nutshell, is Sunstein’s theory: …The crucial development was [sic] the election of President Nixon in 1968 and his four appointments to the [Supreme] Court: Warren Burger in 1969, Harry Blackmun in 1970, and Lewis Powell and William Rehnquist in 1972. These appointees produced a stunning series of decisions, issued in amazingly rapid succession, which … made it clear that for the most part, social and economic rights have no constitutional status…18 The idea is that as of 1970, the Supreme Court was on the verge of reading some form of a right to social welfare into the Constitution through the Fourteenth Amendment due process clause or the equal protection clause but that the appointment of four moderate-to-conservative new justices to the Court closed the door to that opportunity. Had Hubert Humphrey, rather than Socio-Economic Rights in American Perspective 11 15 Sunstein (note 1 above) at 144. 16 Ibid p 136-137. 17 This was hardly the emphasis of all, or even most, of the American Legal Realists. The one Realist whom this description best fits was J Frank Law and the Modern Mind (1930). 18 Sunstein (note 1 above) 163. 1 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Richard Nixon, been elected president in 1968, things would have turned out differently and the United States would have become another member of the club of countries whose constitu- tions recognize socio-economic rights. While others have offered the same theory,19 it is less compelling than meets the eye. The claim that 1970, the year of Goldberg v Kelly, was the golden-but-lost moment for a constitu- tional right to welfare relies on a more expansive reading of that case that is warranted. Scholars like Sunstein who read Goldberg as signaling the pre-Nixon Supreme Court’s willing- ness to recognize a substantive right to welfare into the Constitution emphasize dicta in the Court’s opinion that is promising but misleading. The Court stated, for example, ‘From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all per- sons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.’20 The Court went on to say …Welfare, by meeting the basic needs of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate mean- ingfully in the life of the community. . . . Public assistance, then, is not mere charity, but a means to [quoting here from the Preamble to the US Constitution] ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…21 The real meaning of the Court’s high-flown rhetoric is grasped when we put it in the context of the legal issue before the Court. That issue, as I’ve already indicated, was whether, under the four- teenth amendment due process clause, recipients of government welfare assistance benefits are entitled to an evidentiary hearing prior to termination of benefits. The resolution of that issue turned on whether the recipient possessed a ‘property’ interest for procedural due process pur- poses. The government had argued that there was no right to receive welfare benefits, that such benefits were only a ‘privilege.’ It was this right/privilege distinction that the Court rejected. Citing Charles Reich, Justice Brennan wrote, ‘It may be realistic today to regard welfare entitlements as more like "property" than a "gratuity".’ But the determination that welfare recipients have a property interest was made only with respect to the question whether they have any procedural rights under the Constitution, not whether they have any sort of substantive right to receive those benefits. Thus, the case really does not provide clear evidence to support the contention that the Court was on the verge of recognizing something like a substantive constitutional right to mini- mum welfare. Perhaps in some future case the Court, had it not been reconstituted by Richard Nixon, might have headed in that direction, but that is sheer counterfactual speculation. It is important to be careful about distinguishing statutory social welfare rights and a con- stitutional welfare right. There is no doubt that during the late 1960s, there was a major expan- sion of statutory welfare rights. Prodded by the steam-rolling exhortations of President Lyndon Johnson, Congress enacted program after program in an overt effort to eradicate poverty by meeting the minimum economic needs of all Americans, but no political leader at the time urged translating such statutory rights into a substantive constitutional right. 19 See WE Forbath (note 10 above) at 598 fn 7and 612-613; WE Forbath ‘Lincoln, the Declaration, and the ‘Grisly, Undying Corpse of States’ Rights: History, Memory, and Imagination in the Constitution of a Southern Liberal’ (2004) 92 Georgetown LJ 709 at 709. 20 397 US at 264-265. 21 Ibid at 265. So, if Professor Sunstein’s Legal Realist theory does not provide a convincing explanation of why there are no constitutional socio-economic rights in the US, what is the reason? At least part of the explanation, I want to suggest, lies in American culture, but not the American excep- tionalist culture that Sunstein described. It lies, rather, in a tradition of anti-paternalist ideolo- gy that has strongly influenced American jurisprudence, both public and private, at least since the second half of the 19th century. The idea of enshrining social welfare rights in the Ur-text of the American polity, I suggest, is fundamentally incompatible with the American legal cul- ture of anti-paternalism. IV The Culture Of Anti-Paternalism In American Jurisprudence As a mode of legal thought and culture, anti-paternalism is closely related to two other cultur- al strands in American intellectual history. The first is Social Darwinism. In recent years there has been considerable discussion among American legal historians about the prevalence of Social Darwinist ideas in American legal thought since the second half of the nineteenth centu- ry. Revising the conventional account, which is usually attributed to the late Richard Hof- stadter,22 that depicts Social Darwinism as dominant since 1870, the consensus among American historians now is that the Social Darwinism did not dominate American legal thought during the late nineteenth century. But Social Darwinism, though closely related to anti-pater- nalism, is not identical with it. Anti-paternalism, or anti-protectionism as it might also be called, is captured by Albert Venn Dicey’s remark that ‘protection invariably involves disabili- ty.’23 It is primarily focused on the relationship between individuals and the state, viewing state measures to protect individuals from the hardships of life as inimical to the project of progres- sively developing a society of the fit. Social Darwinism, which reached its apogee in the United States during the Age of Enterprise, roughly from 1870 to 1900, tended to focus instead on the relationship between and the state and the market, as distinguished from society. Its thrust was certainly anti-protectionist, but its real attention was on the proper conditions of economic activity in a competitive market economy. To be sure, anti-paternalist rhetoric was often a sur- rogate for explicitly Social Darwinist rhetoric,24 but the forces opposing legal paternalism tend- ed to be more preoccupied with social progress rather than economic progress. If Social Darwinism has not dominated American legal culture since the late 1800s, anti-paternalism has. The key to understanding why socio-economic rights have never been recognized in American constitutional jurisprudence lies, I contend, in this feature of American legal tradition and culture. Assaults on legal paternalism have been a constant feature of American legal culture at least since the late 19th century. Today, anti-legal paternalism is often couched in the rhetoric of eco- nomics, but the American critique of legal paternalism is more than a matter of economic the- ory. It is based on a distinct social and, for many, moral vision, a vision that in some respects is an atavar of the 18th-century civic republican sociology of virtue, which taught that civic Socio-Economic Rights in American Perspective 13 22 See R Hofstadter Social Darwinism in American Thought (1955). 23 AV Dicey Lectures on Law and Public Opinion in England During the Nineteenth Century (1905) at 150 fn 1. 24 See A Soifer ‘The Paradox of Paternalism and Laissez-Faire Constitutionalism: United Supreme Court, 1888-1921’ (1987) 5 Law & History Review 252. 1 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E virtue was indispensable for a vigorous republic and that self-governance and economic inde- pendence were necessary conditions for civic virtue. In later incarnations, this vision empha- sized personal independence and self-reliance above all else. Unless your status placed you in one of the categories of persons deemed incapable of looking out for themselves – categories that in the 19th and early 20th centuries included racial groups such as Native Americans and African-Americans – you were held responsible for the material conditions of your own life. No one owed you a duty, legal or moral, to protect you against financial misfortune or to bail you out of economic distress. If people were to become legally entitled to protection against either their own ill-considered decisions or the vagaries of the market’s invisible hand, they would rap- idly lose the very personal qualities necessary for the civicly proper moral and political person- ality carefulness, determination, honesty, and above all, energy. The virtuous citizen was one who earned his wealth, paid his own way, satisfied all his debts, and responded to adversity with renewed vigor. He was, in short, the self-sufficient, productive person of integrity. The influence of this legal anti-paternalist thought on American constitutional jurisprudence during the period between 1870 and 1930 is well-known,25 for this was the heyday of what is commonly called laissez-faire constitutionalism. While the conventional view of judicial thought and practice during the era of laissez-faire constitutionalism has undergone a revision in recent years, with revisers softening the image of courts as intractably opposed to all and every form of interference with the workings of the market, there still remains little doubt that during this period courts tended to be hostile to legislation that they viewed as ‘class’ legisla- tion.26 This was especially true of legislation aimed at protecting discrete categories of workers from harsh working conditions and unfair terms of employment. That the culture of anti-pater- nalism was doing the real work behind the mask of freedom of contract is indicated by the fac- tual circumstances in which courts gave their constitutional approval to legislative regulations of the workplace. The best example is the famous 1908 case of Muller v Oregon,27 where the Supreme Court upheld a state statute limiting the number of hours women could work in laun- dries. The Court’s opinion rested squarely and explicitly on the factual assumption that women were naturally ‘at a disadvantage in the race for subsistence.’28 Women, along with children, Native Americans, and a few other social categories (such as ‘idiots’) were widely considered to be naturally in need of legal protection,29 so statutes of the sort involved in Muller did not run afoul of the consensus regarding anti-paternalism. During the Great Depression, which lasted from 1929 to 1941, attitudes about need, self- sufficiency, and legal protection changed profoundly in many respects. The Depression made it abundantly clear to most Americans that even the most virtuous and productive person could find herself in desperate circumstances for reasons completely beyond her control. As one legal historian has written, ‘The Great Depression sorely tested old assumptions . . . that economic well-being flowed from personal virtue, and that government had a limited role in promoting the collective social welfare.’30 Franklin Roosevelt’s election to the Presidency was due in no small measure to this sea change in the economic conditions of many hard-working ordinary 25 See ibid. 26 See ML Benedict ‘Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origins of Laissez-Faire Constitutionalism’ (1985) 3 Law & History Review 293. 27 208 US 412 (1908). 28 Ibid at 421. 29 See eg JC Gray Restraints on the Alienation of Property (1895) at 170. 30 KL Hall The Magic Mirror (1989) at 267. Americans. His New Deal legislative programmes were directly aimed at providing govern- mental assistance to a wide array of Americans, including groups, such as White males, that in anti-paternalist ideology were considered lacking any excuse for legal protection. Yet even the Great Depression did not eradicate the culture of anti-paternalism. There was a change in attitude toward legal protectionism, to be sure, but that change had definite limits. While legal paternalism was accepted in the form of legislation, it was not accepted at a con- stitutional level. The New Deal introduced unprecedented legislation aimed at providing eco- nomic assistance to a broad cross-section of the American public, but at no point was there any serious discussion of a constitutional basis for governmental assistance to the poor, the sick, or the unemployed. Indeed, there was not even any proposal for a constitutional right to public assistance of any kind. Conspicuously, Franklin Roosevelt’s own Second Bill of Rights never included a proposal for constitutional action. The President anticipated that his proposals would be implemented solely through legislation. The same pattern existed during the next period of social-welfare activism, the era of the War on Poverty and the Great Society. Scholars have noted the ways in which the welfare-rights movement of the 1960s departed from prior social movements aimed at government assistance for the needy, notably by shifting from an emphasis on work to a focus on welfare.31 However, the two movements shared a common and exclusive method for implementing their vision of weaving socio-economic rights into the fabric of American law, and that exclusive method was legislation. As in the case of the New Deal, the welfare-rights activists of the 1960s, including Charles Reich, never proposed making social welfare a matter of constitutional right. There had been a shift away from the more robust version of anti-paternalist legal and political culture in the late 1960s, but that shift went only so far. The line between statutory and constitutional paternalism was not to be crossed. Why was that the case? Once the culture of anti-paternalism was relaxed, why didn’t it lead to constitutional action, either through constitutional amendment or through judicial interpre- tation? Here we have to turn our attention from culture to an institutional factor. That factor is the character of constitutional rights in the American legal system. Constitutional rights are different from their counterparts in many other countries. This is not the occasion for detailing all of these differences, but a few have to be noted to understand why the idea of statutory socio-economic rights has been accepted while a constitutional version of such rights has not. One difference has already been noted: in American jurisprudence legal rights, but especial- ly constitutional rights, are generally viewed as pragmatic tools rather than being purely expres- sive or aspirational.32 While statutory rights usually are viewed through the same pragmatic lens, there are instances in which statutes have been enacted despite substantial doubts about their judicial enforceability. In these instances lawmakers view the harm likely to result from the fact that a statute’s failure to deliver its practical promise as outweighed by the benefit gained by the statute’s expressive effect. This is not the case with respect to constitutional norms, however. The idea of a constitutional provision that lacks judicial enforceability is anathema to the American legal system. Legal unenforceability, real or projected, has both pre- vented adoption of constitutional amendments (as in the case of the Equal Rights Amendment) and prompted repeal of amendments already enacted (as in the case of the Eighteenth Socio-Economic Rights in American Perspective 15 31 Forbath (note 10 above) at 604. 32 For a discussion of the expression vs pragmatic character of American constitutional rights, see Sunstein (note 1 above) at 140-145 Amendment, which prohibited the manufacture, sale, and transport of intoxicating liquor). A statute that doesn’t do something is tolerable; a comparable constitutional right is not. A related institutional factor is the importance in the American constitutional scheme of maintaining the realm of ordinary, ie majoritarian politics. A right that is strictly statutory does not remove the subject matter of the right from the realm of majoritarian politics. The matter is always on the political table, subject to legislative control and change through the processes of ordinary politics. Elevating a right to constitutional level, however, poses the counter-majori- tarian difficulty. The right becomes a ‘Super Right,’ removed from the realm of ordinary poli- tics and majoritarian control. In a country in which ‘democracy’ means majoritarian control, the decision to make an individual right a constitutional right is taken with great caution. Better to err on the side of leaving the matter subject to legislative control, the thought is. So, the default mode regarding constitutional revision of any sort is inaction. This general hesitation regarding recognition of new constitutional rights, combined with the residual force of the culture of anti-paternalism, in my judgment, explains the absence of con- stitutional socio-economic rights better than Professor Sunstein’s theory. Even in the absence of a change of membership of the Supreme Court in 1970, I think it highly unlikely that a sub- stantive social welfare right would have been added to the constitutional roster. 1 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E The ‘Politics of Need Interpretation’* and the Adjudication of Socio-Economic Rights Claims in South Africa** D A N I E B R A N D Senior lecturer, Department of Public Law, University of Pretoria I Introduction Against the backdrop of a transformative constitution, writes Karl Klare, an important question to ask of the work product of judges is the extent to which it either erodes or reinforces discur- sive politics, opens up or limits space for political contestation, ‘deepen[s] democratic culture’ or ignores it.1 Judgments and interpretations that reinforce participatory politics advance the Constitution’s transformative ethos, those that do the opposite, unconscious of their political role, frustrate it.2 Klare himself proposes one way in which judges can through their work deep- en democratic culture. By being candid about the political nature of their work, by laying bare the extra-legal political concerns that influence their interpretations and decisions, they can ren- der themselves accountable and so create space for political critique of their work product.3 But we know, as does Klare, that important as such candour might be, the difficulty facing judges in this respect is more complex than this, that the tension between rights and democracy is more intractable.4 The law, including adjudication, works in a variety of ways to destruct the socie- tal structures necessary for politics, to close down space for political contestation. To work in a * Nancy Fraser ‘Talking about Needs: Interpretive Contests as Political Conflicts in Welfare-State Societies’ (1989) 99 Ethics 291 at 292. ** My thanks to Beth Goldblatt, Sandra Liebenberg, André van der Walt, Johan van der Walt and Stuart Wilson for their comments when I presented earlier versions of this paper at the July 2004 South African Journal of Human Rights Conference in Johannesburg and the July 2004 Stellenbosch Institute for Ad- vanced Studies seminar on theories of socio-economic rights in Stellenbosch, and to Karin van Marle and Stu Woolman for reading and commenting on various drafts. Mistakes are my own. 1 K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146 at 164-165 and 171. As the word and terms ‘politics’ or ‘political contestation’ and ‘democracy’ will often appear in this paper, I would do well at this stage already to say what I mean with them. I refer to politics in what Nancy Fraser ‘Talking About Needs: Interpretive Contests as Political Conflicts in Welfare-State Societies’ (1989) 99 Ethics 291 at 297 has described as a discursive sense – in this sense, ‘something is “political” if it is con- tested across a range of different discursive arenas and among a range of different publics’. Politics in this sense is contrasted with politics in the institutional sense (‘a matter is deemed political if it is handled direct- ly in the institutions of the official governmental system, including parliaments, administrative apparatuses, and the like’) and politics in the official sense (‘what is “political” … contrasts with what is handled in insti- tutions like the “family” or the “economy”, which are defined as outside the official-political system’). 2 Ibid 165. 3 Ibid 164-165. 4 Ibid 171-172. 1 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E transformative way, judges have to be aware of and attempt to take account of all of them. In this paper, I focus on one way in which courts can close down space for politics that judges should be aware of: courts can erode participatory politics by invoking and therefore reinforcing in their judgments and interpretations certain rhetorical strategies that are used by participants in the political discourse around poverty and need in our new welfare state to depoliticise the terms of that debate. I analyse a number of the socio-economic rights cases that the Constitutional Court and Supreme Court of Appeal have decided to date – Soobramoney,5 Grootboom,6 Treatment Action Campaign,7 Khosa,8 Port Elizabeth Municipality9 and Modderklip10 – and track the use by courts of this depoliticizing rhetoric. At the same time I identify from the cases countervailing trends that suggest ways in which courts can subvert or avoid this particular depoliticising effect of their work. II Drawing the Limits of the Political Poverty and basic need – those social problems of hunger, homelessness and inadequate access to health care, social assistance and education that give rise to socio-economic rights litigation – are questions of major political concern. These issues occupy a significant part of the discourse in our formal political institutions. In the competitive environment of parliamentary politics, different understandings of, for example, the causes of HIV/Aids, of who bears responsibility for providing treatment for people living with HIV/Aids and of how best to treat them are centrally important subjects of political contestation and forms of political currency. These issues are also central to informal participatory forms of politics. An issue like inadequate access to basic services such as water and electricity gives rise to popular demonstrations and constitutes the raison d’être of informal social movements who engage in direct political action; uncertainty about the nature and extent and the causes of homelessness sustains polit- ical debates in the print and visual media; and questions about whether or not South Africa should extend its social assistance system occupy the discursive politics of social activists and academics. In sum, in South Africa ‘talk about people’s needs is an important species of political discourse’, ‘has been institutionalised as a major vocabulary of politic[s]’ and is ‘an idiom in which political conflict is played out and through which inequalities are symbolically elaborated and challenged’.11 At the same time there is in the different political discourses about these questions a perva- sive tendency toward their depoliticisation – that is, a tendency to talk about them in such a way that they are bracketed as non-political, not subject to or not capable of being subjected to political contestation. When Government publicly warns that further extension of the social assistance system would lead to the inculcation in poor people of a ‘culture of dependency’,12 the implication is that poor people somehow are themselves to blame for their predicament, that they are poor because they are lazy or lack entrepreneurial vigour. The political causes of their poverty are hidden, papered over. When ordinary people lament the enormity of poverty 5 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) (Soobramoney). 6 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (Grootboom). 7 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) (Treatment Action Campaign). 8 Khosa v Minister of Social Development 2004 (6) SA 505 (CC) (Khosa). 9 Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 (CC) (PE Municipality). 10 Modderfontein Squatters v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA) (Modderklip). 11 Fraser (note 1 above) at 291. 12 See the remarks of government spokesperson Joel Netshitenze, in response to the proposal by the Taylor Commission of Inquiry into a Comprehensive System of Social Security for South Africa for a universal basic income grant, saying that it would amount to a ‘handout’ and would encourage a culture of entitle- ment. Netshitenze further indicated that the cabinet prefers a public works programme, because it believes in South Africa, pointing to the inexorable impact of a globalised economy, or an inadequate natural resource base as its cause, something similar happens. Poverty is attributed to forces over which we have no control, with which political engagement is impossible or futile.13 Against this background, Nancy Fraser describes what she calls the process of ‘need inter- pretation’ – of giving meaning to the concepts basic need and poverty, determining their caus- es, deciding which needs and which kinds or degrees of poverty merit state intervention and deciding what the best ways are to address instances of deprivation – as follows: [N]eeds talk appears as a site of struggle where groups with unequal discursive (and non-discursive) resources compete to establish as hegemonic their respective interpre- tations of legitimate social needs. Dominant groups articulate need interpretations intended to exclude, defuse and/or co-opt counterinterpretations. Subordinate or oppo- sitional groups, on the other hand, articulate need interpretations intended to chal- lenge, displace, and/or modify dominant ones. 14 In short, the political discourse around issues of poverty and basic need is a process of politici- sation, depoliticisation and repoliticisation of the issues at stake. Particular questions of depri- vation – say inadequate access to anti-retroviral treatment for people living with HIV/AIDS, or insecurity of tenure for the propertyless – are inserted into political discourse, claimed as legiti- mate political concerns through the oppositional social action of social pressure groups or polit- ical movements. Dominant societal groups, intent on immunizing their privileged position as property owners or hiding their complicity in the suffering of people living with HIV/AIDS or justifying to themselves their position of relative privilege, attempt to remove these issues from the search light of robust political contestation, to depoliticise them. Subordinate groups – the people living with HIV/AIDS or the propertyless – in turn, intent on challenging their positions of relative deprivation and on claiming from society the assistance to which they feel entitled, work to retain these questions as issues of political concern, to politicise or repoliticise them. In this political to-and-fro, this process of depoliticisation and repoliticisation, a set of stock de- politicizing rhetorical strategies are usually employed. The first of these strategies is to ‘domesticate’ issues of poverty and need – to describe them as issues that fall within the domestic rather than the political sphere. As such, these issues can be cast as private or familial issues rather than public or political.15 Martha Fineman describes the nature and effect of this domestication strategy as follows: The private family is the social institution that is relied upon to raise children and care for the ill, the needy and the dependent. Ideally it performs these tasks as a self- contained and self-sufficient unit without demanding public resources to do so. In the societal division of labor among institutions, the private family bears the burden of dependency, not the public state. Resort to the state is considered a failure. By according to the private family responsibility for inevitable dependency, society directs dependency away from the state and privatizes it. 16 Politics of Need Interpretation 19 ‘able-bodied’ South Africans should enjoy ‘the opportunity, the dignity and rewards of work’ (quoted in A Habib & C Skinner ‘The Poor Must Fend for Themselves’ (04-08-2002) Sunday Times 14). 13 LA Williams ‘Welfare and Legal Entitlements: The Social Roots of Poverty’ in D Kairys (ed) The Politics of Law. A Progressive Critique (1998, 3d edition) 569 at 569. 14 Fraser (note 1 above) at 296. 15 Fraser (note 1 above) at 299. 16 MLA Fineman ‘Masking Dependency: The Political Role of Family Rhetoric’ (1995) 81 Virginia LR 2181 at 2205. 2 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E In a patriarchal, capitalist society such as ours, the depoliticizing effect of the domestication of an issue is profound. One needs think only of how recently still forced sex within a marriage was in South Africa not regarded as rape but as a ‘private matter’ between husband and wife, to be reminded of how startlingly strong the perceived normative split between the public (political) and the private (personal) still is, or until recently was, in this respect. The second common depoliticisation strategy employed by dominant groups is the personal- isation of need and dependence – the status of poverty, of being dependent is attributed to the personal character traits, the failure, the abnormality of poor people themselves, rather than to the social, political and economic forces that actually shape it. Thomas Ross writes that this rhetorical process of personalisation of poverty takes place in two stages. The first rhetorical step is the creation of the ‘abstraction the “poor”’ as a distinct class of people ‘who are them, not us’.17 This makes possible the second rhetorical move – the attribution to the poor of moral weakness. To describe the poor as morally weak, they first have to exist as a separate group. This creation of otherness has a further result: it makes it possible for the middle class and the affluent to proclaim not only the moral weakness of the poor, but also their deviance, their abnormality.18 In similar vein, Lucy Williams relates how popular understandings of poverty and dependence in the US distinguish between the ‘deserving’ and the ‘undeserving’ poor. Poverty or dependence that cannot be explained as the result of ‘natural’ factors such as natu- ral disaster, physical or mental disability or age is undeserving of social assistance. Such ‘unde- serving’ poverty, in the absence of a ‘natural’ cause, so the assumptions go, can only be ex- plained by the personal degeneracy and deviance of the poor person, who is to blame for her own position and consequently doesn’t deserve assistance.19 Perceptions or assumptions about the moral degeneracy of the poor and their consequent blameworthiness for their predicament are prevalent in South Africa. South Africa’s social assistance system is built on a distinction between deserving and undeserving poor. It is almost wholly special needs based – regular grants are paid only to groups such as children, older people and the disabled, who cannot be blamed for the condition of poverty, while no provision is made for social assistance to people who are poor, but ‘able bodied’. Government’s reaction to the proposal made in 2002 by the Taylor Commission of Inquiry into a Comprehensive Social Security system for South Africa that a universal basic income grant should be introduced is illuminating in this respect. Govern- ment rejected the proposal and introduced instead an extended Public Works Programme. At the time, a government spokesperson explained this move as motivated by the fear that a basic income grant would breed in poor people a ‘culture of entitlement’ or dependency, and went on to say that a public works programme is apposite, as ‘able-bodied’ South Africans should enjoy ‘the opportunity, the dignity and rewards of work’.20 A third rhetorical strategy employed by dominant groups within the political discourse about need and poverty to depoliticise the debate is the naturalisation of poverty. Poverty and depri- vation is depoliticised by it being attributed to ‘natural’ causes, wholly outside of the control of society. This process of naturalisation can occur in two ways. The first is through the act of 17 Thomas Ross ‘The Rhetoric of Poverty: Their Immorality, Our Helplessness’ (1991) 79 Georgetown LJ 1499 at 1499-1500. 18 Ibid 1500-1501. 19 Williams (note 13 above) at 569. See also Ross (note 17 above) at 1501-1502; and N Fraser & L Gordon ‘A Genealogy of Dependency: Tracing a Keyword of the US Welfare State’ (1994) 19 Signs: Journal of Women in Culture and Society 309 (reproduced in LA Williams Welfare Law (2001) 47) at 323-324. 20 Joel Netshitenze, quoted by Habib & Skinner (note 12 above). throwing one’s hands in the air and succumbing to the enormity of the problem of poverty – simply saying that there is so much of it that it will always be with us. The second is through the act of according causes to poverty, but then inexorable causes over which society has no control, for example the uncompromising, impersonal forces of the global market. Common to both these assertions is the idea that poverty is somehow ‘naturally’ part of the structure of our society, and will consequently always be there, whatever we do: ‘The causes of poverty, we assume, are a product of a complex set of factors tied to politics, culture, history, psychology and philosophy. Thus, only in a radically different world might poverty cease to exist. And, whatever the extent of [our] … powers … , radically remaking the world is not one of them.’21 The fourth and final depoliticizing rhetorical strategy employed in the political discourse about poverty is the process of instrumentalisation of needs-talk.22 The political discourse about poverty and need occurs in different discursive arenas – within informal social move- ments and pressure groups, more formal organs of civil society such as NGO’s and academia and, finally, within official discursive arenas such as Parliament or specialist administrative agencies.23 These different discursive arenas occupy positions of relative power in the struggle to determine and fix meaning in the interpretation of questions of poverty and need. The descriptions given to poverty and need in the official discursive arenas such as Parliament and specialist administrative agencies are officially sanctioned. As such they exert an authoritative influence on the political discourse around poverty and need. At the same time the interpreta- tion of poverty, need and deprivation that takes place in these official discursive arenas is explic- itly depoliticizing. When Parliament, or a department of state speak about a particular need and engage in the interpretation of that need, they do so with a specific purpose. The need in ques- tion has been legitimized as deserving of state intervention and their purpose is to find the best way to satisfy it – they are in the process of ‘translating politicized needs into administerable needs.’24 As such, the previously politicized issues with which they are confronted become ‘technical problems for managers and planners … in contradistinction to political matters.’25 This process of translation depoliticises in two ways. First, it brackets the issues in question as technically complex issues with which ordinary, non-expert participants in the discourse on poverty cannot usefully engage. Second, the subordinate participants in the discourse are repo- sitioned – whereas before they where active participants in the process of interpretation of their needs, engaged in political action, they now become the passive recipients of services – their pre- defined needs are administered to them through a process of therapeutic assistance.26 As a result, their political engagement is negated. The different strategies of depoliticisation described above are politically motivated – they are used to further particular political agendas and are as such in themselves acutely political.27 Dependence and deprivation is attributed to the personality traits of poor people so that the complicity of the legal and political system in creating their predicament can be obscured and challenge to these systems can be avoided and so that positions of relative affluence can be jus- Politics of Need Interpretation 21 21 Ross (note 17 above) at 1501. 22 Fraser (note 1 above) at 299. 23 Ibid 295. 24 Ibid 306. 25 Ibid 299. See also J Habermas ‘Law as Medium and Law as Institution’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 204 at 210. 26 Habermas (note 25 above) at 210; see also Fraser (note 1 above) at 307. 27 Fraser (note 1 above) at 298: ‘[O]ne of the primary stakes of social conflict in late-capitalist societies is pre- cisely where the limits of the political will be drawn.’ 2 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E tified – it is the fault of poor people themselves that they are poor and of no one else. Poverty is described as inevitable, as a constant presence in society so that personal and collective inac- tion with respect to it can be justified – society can assert its helplessness in the face of ‘natu- ral’ deprivation and so avoid having to do anything about it. In broad terms all these strategies of depoliticisation are aimed to preserve the status quo, both by immunizing it from attack by hiding its complicity in creating and maintaining poverty and by justifying inaction in the face of poverty and hardship. As such these acts of depoliticisation are cause for concern: they con- stitute attempts by society to assert its helplessness in the face of poverty, to get away with doing nothing about something that indeed is, at least to some extent, within its control.28 That the law is determinatively involved in the discourse about the political stakes of pover- ty and need is a point that hardly requires making. Precisely the social provisioning activities of the welfare state – state provision of housing, of health care services, of education and of other social services – are regulated by vast, complicated and ever-expanding networks of law, in the widest possible sense of that word: Formal legislation, administrative rules and decisions and, more recently, constitutional or statutory welfare rights elaborated in judgements by courts. The law in question is of a particular kind – its is ‘regulatory’, ‘instrumentalised’ law, aimed not, as law traditionally was, at resolving particular and discrete disputes, but at regulating, guiding, constituting and giving effect to the social provisioning programmes and goals of the state. As such it is part of and in certain respects constitutive of the political discourse around poverty and need. South Africa certainly also stands under the mark of this kind of, what has come to be called ‘juridification’.29 Although the Apartheid-state already operated according to its fair share of regulatory law, South Africa has, post liberation, seen an explosion of law intended to control, guide and give effect to the ‘societal guidance intentions’30 of the new State. Courts’ socio-economic rights judgements, and the doctrine established and elaborated in those judgements, form a significant part of our process of juridification. The effects of juridification – the role of law in the welfare state, its impact and the conse- quences of its operation there – have for long attracted scholarly attention. Scholars have first analysed and questioned the effect of legal expansion on the law itself, arguing for instance that, because law is bound to fail in its social engineering role, juridification causes a crisis of credi- bility for law,31 and that the instrumentalisation of law for social purposes threatens its con- ceptual structures,32 rendering it internally incoherent and ‘disintegrat[ing] basic legal values and the unity of the legal system.’33 More pertinently, juridification scholars have also devoted considerable attention to the effect of juridification on the areas of life and society into which law newly expands or in which 28 Ross (note 17 above) at 1509-1513. 29 ‘Juridification’ is the term used to describe the phenomenon of growth of regulation or growth of law in the welfare state. See, for a good synopsis of both the phenomenon of juridification itself and the body of schol- arship that has developed from the study of its nature, causes and effects, JWG van der Walt The Twilight of Legal Subjectivity: Towards a Deconstructive Republican Theory of Law (1995) unpublished LLD dis- sertation, Rand Afrikaans University at 319-326; see also the various contributions in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) and Juridification of Social Spheres (1987). 30 G Teubner ‘The Transformation of Law in the Welfare State’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 3 (Teubner ‘Transformation’) at 3. 31 G Teubner ‘Juridification Concepts, Aspects, Limits, Solutions’ in G Teubner (ed) Juridification of Social Spheres (1987) (Teubner ‘Concepts’) at 6. 32 N Luhman ‘The Self-Reproduction of Law and its Limits’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 111, in general. 33 Teubner ‘Transformation’ (note 30 above) at 4. See also Van der Walt (note 29 above) at 324. existing regulation densifies. In this respect juridification commentators have explored and analysed a familiar tension: The tension between rights and democracy34 or the ‘ambivalence of guarantees of and denials of freedom’35 that is occasioned by the process of juridification – the problem that, whilst juridification patently has an emancipatory intent (guaranteeing, for instance, access to basic social benefits to protect against the depredations of the market), it operates simultaneously in a repressive fashion in that it limits the potential for radical and crit- ical political action.36 Juridification – including the work of courts in the process of interpreting and applying socio-economic rights – can exercise this stilling effect on radical and critical political action first by destructing or subverting the various forms of social organisation upon which such action depends.37 Johan van der Walt, for example, refers to the ‘individualizing tendency’ of juridification – rights and the individual entitlements emanating from them that are inserted into the social sphere through juridification ‘take[ ] the place of spontaneous communal sup- port in family as well as in local community life’, so that collective organisation and collective political action is impaired, replaced by self-interest seeking action.38 This kind of ‘privatisa- tion of right’ has been well documented in historical accounts of labour movements in Europe, where the creeping legalism of juridification has contributed to the transformation of these movements from collective bodies advocating the emancipation of workers as a class, to ‘encor- porated organisations’ representing the individual consumer interests of their members. Membership of the group loses its political dimension, becoming instead an instrument for the furtherance of individual interests.39 Juridification further works to ‘gloss over’ and ‘pacify’ political conflict and contestation.40 The intrusion of rights and the language of rights in the social sphere runs the risk of promot- ing ‘a false expectation in disadvantaged individuals and groups that the pursuit of legal rights through the courts can effect lasting social change’ whereas ‘rights…operate instead to…chan- nel potentially radical demands for change into legal claims which, by definition, will not be disruptive of the social and economic status quo.’41 But juridification can also diminish the potential for critical political action in another way. The law can, through the language it uses, through the interpretations of need and poverty that it authorizes, confirm and legitimate the depoliticizing strategies that participants in the politi- cal debate around need employ. Courts can play a particularly significant role in this respect. Politics of Need Interpretation 23 34 See also in this respect the various contributions in H Botha, AJ van der Walt & JWG van der Walt Rights and Democracy in a Transformative Constitution (2004). 35 Habermas (note 25 above) at 209. 36 Van der Walt (note 29 above) at 323 (juridification is aimed at ‘serving the goal of social integration, yet … merely contribute[s] to the process of social disintegration’). 37 J Habermas (note 25 above) at 211: ‘ … [W]hile the welfare state guarantees are intended to serve the goal of social integration, they nevertheless promote the disintegration of life relations.’ 38 Van der Walt (note 29 above) at 324. See also AAG Peters ‘Law as Critical Discussion’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 250 at 276-277. 39 Peters (note 38 above) at 276. See also S Simitis ‘Juridification of Labor Relations’ in G Teubner (ed) Juridification of Social Spheres (1987) 113 at 132-134. 40 Van der Walt (note 29 above) at 324. 41 M Jackman ‘Constitutional Rhetoric and Social Justice: Reflections on the Justiciability Debate’ in J Bakan & D Schneiderman (eds) Social Justice and the Constitution: Perspectives on a Social Union for Canada (1992) 17 at 22. See in this respect S Wilson ‘Taming the Constitution: Rights and Reform in the South African Education System’ (2004) 20 SAJHR 418 at 423-424, who points out how the Department of Education has effectively co-opted rights talk to ‘provide ideological window-dressing for policies and prac- tices, which actually countenance significant limits on the very rights they are supposed to advance’ (at 424). 2 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E The particular rhetorical power that their processes and their work-product enjoy in our democracy has been noted before – in Karl Klare’s words, we may ‘legitimately expect’ adjudi- cation ‘to innovate and model intellectual and institutional practices’ in our democracy.42 To some extent at least, and it might be to only a very small extent,43 but nevertheless, when courts speak, people listen and sometimes copy. When courts engage with issues of poverty and need in socio-economic rights cases they also engage with and participate in the political discourse around poverty and need referred to above. This happens in different ways. First, courts’ adju- dication of socio-economic rights claims becomes part of the political discourse, even a medi- um through which this discourse partly plays out. Civil society organisations and social move- ments regard and use socio-economic rights litigation as tools of political struggle not separate from, but as part of that struggle.44 Court judgments in these kinds of cases once handed down become rallying points, political currency in their struggles. Second, courts also occupy a sym- bolic, or perhaps more accurately, an exemplary role with respect to poverty and need dis- courses – their vocabulary, the conceptual structures they rely on, the rhetorical strategies they employ infiltrate and so influence and shape the political discourses around poverty and need. This is, despite its protestations to the contrary,45 particularly true of the Constitutional Court, because of its prominence and its symbolic significance – one can but think of the extent to which the ‘reasonableness’ test that the Court developed in Grootboom and Treatment Action Campaign with which to evaluate the state’s social provisioning activities has shaped civil soci- ety monitoring of planning and delivery with respect to social services and the political advo- cacy informed by that monitoring.46 Now, as I pointed out at the start of this section, the political discourse about poverty and need in the welfare state in which law is a participant consists not only in a political process of the interpretation of need, but also in a political process of drawing the limits of the political, of determining which issues related to poverty and need are legitimately subject to political con- testation. In the political struggle around issues of poverty and deprivation rhetorical strategies of domestication, personalisation, naturalisation and instrumentalisation are employed by usu- ally the socially dominant participants to depoliticise issues in need-interpretation, to cast them as non-political, as falling outside the scope of legitimate political contestation. Were courts to invoke these rhetorical strategies in their interpretation and judgement when deciding socio- economic rights cases, they could potentially exert a profound depoliticising influence on the 42 Klare (note 1 above) at 147. 43 Wilson (note 41 above) at 420-421. 44 See ibid 436-442 for an account of use of the right to education in this ‘instrumental’ sense by social move- ments and NGO’s in struggles pertaining to basic education. With respect to the use of litigation in this sense, see M Heywood ‘Preventing Mother-to-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 SAJHR 278 at 314-315; and S Liebenberg ‘South Africa’s Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in Challenging Poverty?’ (2002) 6 Law, Democracy and Development 159 at 159. 45 See eg Treatment Action Campaign (note 7 above) paras 20-21: ‘[T]he issue of HIV/AIDS has for some time been fraught with an unusual degree of political, ideological and emotional contention … [S]ome of this contention and emotion has spilt over into this case … Ultimately, however, we have found it possible to cut through the overlay of contention and arrive at a straightforward and unanimous conclusion.’ For a dis- cussions see H Botha ‘Freedom and Constraint in Constitutional Adjudication’ (2004) 20 SAJHR 249 at 249-250 and K Van Marle ‘Revisiting the Politics of Post-Apartheid Constitutional Interpretation’ (2003) TSAR 549 at 552-553. 46 See eg J Streak & J Wehner ‘Children’s Socio-economic Rights in the South African Constitution: Towards a Framework for Monitoring Implementation’ in E Coetzee & J Streak (eds) Monitoring Child Socio- Economic Rights in South Africa: Achievements and Challenges (2004) 50 at 79. political discourse around poverty and need. Invoking such depoliticizing rhetorical strategies will in the first place significantly determine the outcomes of their decisions – courts, as do those in the political discourse, usually invoke such strategies so as to justify their avoidance of particular issues, to assert, as Thomas Ross has described it, their helplessness with respect to a particular aspect of poverty or deprivation.47 Not only does that mean that the court does not decide the issue in question. It also means that substantive political discussion of it in court is precluded.48 In the second place, invocation of these rhetorical strategies could also, because of the rhetorical power that the language of courts enjoy in our political discourse around poverty and need, influence and shape that discourse, contribute to drawing the limits of the political there. To recapitulate: In this section I described ways in which courts can work to erode and limit political contestation. I focused on one particular such way: The invocation of courts in their interpretation and judgement in socio-economic rights cases of depoliticising rhetorical strate- gies of domestication, personalisation, naturalisation and instrumentalisation of issues of poverty and basic need. I pointed out that courts’ reliance on these strategies could limit the transformative impact of their decisions and could work to depoliticize the political discourse around issues of poverty and basic need. In the following section, I proceed to analyse a num- ber of judgements with a view to identifying courts’ invocation of the depoliticising rhetorical strategies discussed above. In addition, I point to various countervailing strategies operating in these judgements that might aid courts in managing their impact on the space for political con- testation. III Depoliticisation and Repoliticisation in the Courts (A) INTRODUCTION In my review of the case law to follow, I focus on a particular kind of socio-economic rights case: cases in which the enforcement of an affirmative constitutional duty – that is, a duty to do something rather than a negative duty to refrain from doing something49 – was at issue. The Constitutional Court has to date decided four cases that were explicitly formulated as such. In Soobramoney v Minister of Health, KwaZulu-Natal,50 it denied an application for an order that a state hospital provide dialysis treatment to the applicant, finding that the guidelines according to which the hospital decided whether to provide the treatment were not unreason- able51 and were applied rationally and in good faith to the applicant.52 As such, the Court held Politics of Need Interpretation 25 47 Ross (note 17 above) at 1511. 48 Ibid. 49 The distinction between affirmative and negative duties is of course empty - it is often impossible to dis- tinguish between positive and negative constitutional duties and the strategic conclusions that are drawn on the basis of the distinction are false; see D Brand ‘Introduction to Socio-Economic Rights in the South African Constitution’ in D Brand & CH Heyns (eds) Socio-economic Rights in South Africa (2005) 1 at 10- 12. Nevertheless, the Constitutional Court has adopted this distinction and has developed its doctrine with respect to the enforcement of socio-economic rights with it in mind. 50 Soobramoney (note 5 above). 51 Ibid paras 24-28. 52 Ibid para 29. 2 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E that the denial of treatment did not breach the section 27(1) right of everyone to have access to health care services.53 In Government of the Republic of South Africa v Grootboom,54 the Court heard a claim that the state was obliged to provide homeless people with shelter. It declared the state’s housing programme inconsistent with section 26(1) of the Constitution.55 In Minister of Health v Treatment Action Campaign,56 the Court held that the state’s policy not to provide Nevirapine at all public health facilities to prevent the mother-to-child transmission (MTCT) of HIV at birth, as well as the general failure by the state to adopt an adequate plan to combat MTCT of HIV, breached section 27(1) of the Constitution. The Court held that the state’s measures to prevent MTCT of HIV breached its duties in terms of section 27(1) of the Constitution,57 declared as much and directed the state to remedy its programme.58 In Khosa v Minister of Social Development,59 the Court held sections of the Social Assistance Act60 excluding permanent residents from access to social assistance grants inconsistent with section 9(3) (the prohibition on unfair discrimination)61 and section 27(1)(c) (the right to have access to social assistance)62 of the Constitution. The Court read words into the Act to remedy the constitutional defect.63 In addition to these four, I also consider two further cases, in which affirmative duties came into play indirectly. In Modderfontein Squatters v Modderklip Boerdery (Pty) Ltd,64 the Supreme Court of Appeal was confronted with a claim brought by a private landowner that the state was constitutionally obliged to enforce and carry out an eviction order that he had obtained in terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)65 against squatters illegally occupying his land. The Court held that the state was indeed obliged to protect the claimant’s right to property against invasion by unlawful occupiers.66 However, at the same time, the state was obliged to protect the right of the squatters to have access to adequate housing.67 The Court consequently ordered the state to pay damages to Modderklip to make good the breach of its right to property and the State’s failure to protect against that breach,68 and to allow the squatters to remain on Modderklip’s land until alternative land is made available to them by the state.69 In effect, the 53 Ibid para 36. The application was argued around the sec 27(3) right not to be refused emergency medical treatment and on the right to life. The Court denied the application in these respects, holding that, because health care rights were explicitly protected in the Constitution, it was unnecessary to rely on the right to life (para 19) and that sec 27(3) did not apply to the applicant’s case, because his was not an emergency situa- tion (para 21) and sec 27(3) was a right not arbitrarily to be refused emergency medical treatment where it was available, instead of a positive right to make available emergency medical treatment where it was not (para 20). The Court on its own initiative proceeded to consider the claim on the basis of sec 27(1) (para 22). 54 Grootboom (note 6 above). 55 Ibid para 95. 56 Treatment Action Campaign (note 7 above). 57 Ibid para 95. 58 Ibid para 135. 59 Khosa (note 8 above). 60 Social Assistance Act 59 of 1992. 61 Khosa (note 8 above) para 77. 62 Ibid para 85. 63 Ibid paras 89 & 98. 64 Modderklip (note 10 above). 65 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). 66 Modderklip (note 10 above) para 21. 67 Ibid para 22. 68 Ibid paras 43 & 52. 69 Ibid paras 43 & 52. order required the state to buy the land so that the squatters could remain there, without con- tinuing to infringe Modderklip Boerdery’s property rights.70 In Port Elizabeth Municipality v Various Occupiers,71 the state had applied for an order to evict illegal occupants from private- ly owned land in terms of section 6 of PIE.72 The Constitutional Court confirmed the Supreme Court of Appeal’s decision denying the eviction order, in part because suitable alternative land was not available to the evictees.73 (B) SOOBRAMONEY, GROOTBOOM AND TREATMENT ACTION CAMPAIGN: AN INSTITUTIONAL UNDERSTANDING OF DEMOCRACY Soobramoney, Grootboom and Treatment Action Campaign, although they exhibit instances of the Court resisting the depoliticizing strategies described above (the court resists the person- alisation of poverty by emphasising the economic, political and social causes of poverty)74 most prominently show pervasive strategies of depoliticization. The Court engages in both the domestication and the instrumentalisation of the issues before it. The most striking example of domestication employed as a depoliticising rhetorical strategy comes from Sachs J’s concurring opinion in Soobramoney. An inordinate portion of this opin- ion75 is devoted to an explanation why the Court was unable to intervene on behalf of Mr Soobramoney – not why in a substantive sense his claim must fail,76 but why the Court could not engage with the issues raised by his claim. Indeed the opinion can perhaps best be described as a decision not to decide – a rather extreme example of what Robert Cover has called ‘the judi- cial can’t’.77 Sachs J invokes the usual arguments of institutional incapacity and limited resources to justify his ‘can’t’. He argues, persuasively, that the issues with respect to Mr Soobramoney’s medical treatment were technical medical questions that the court is not equipped to decide78 and ‘toll[s] the bell of lack of resources’,79 pointing out that ‘if governments were unable to con- fer any benefit on any person unless it conferred an identical benefit on all, the only viable option would be to confer no benefit on anybody.’80 But then he goes further still. Referring to US case Politics of Need Interpretation 27 70 Although explicitly indicating that it would not be proper for it to order the state to expropriate the land in question (ibid para 41), the Court does point out that, in light of its order, it would be the sensible thing for the state to do, to expropriate the land (para 43). The state took Modderklip on appeal to the Constitutional Court. The Constitutional Court decision was reported on 16 May 2005; confirming the SCA decision in its effect, albeit for other reasons based on secs 1, 34 rather than 25, 26 of the Constitution. 71 PE Municipality (note 9 above). 72 PIE (note 64 above) sec 6(3)(c). 73 The Supreme Court of Appeal decision is reported as Baartman v Port Elizabeth Municipality 2004 (1) SA 560 (SCA). 74 See eg Grootboom (note 6 above) para 3 (‘The … people with whom we are concerned in these proceed- ings lived in appalling conditions, decided to move out and illegally occupied someone else’s land. They were evicted and left homeless. The root cause of their problems is the intolerable conditions under which they were living while waiting in the queue for their turn to be allocated low-cost housing.’). 75 8 of the 11 paragraphs; Soobramoney (note 5 above) paras 52-59. 76 Substantive engagement with the claim is limited to a single paragraph, in which Sachs J expressed his agree- ment with Chaskalson P’s finding for the Court that Mr Soobramoney’s condition was not an emergency medical condition and did not qualify him for the protection of section 27(3); ibid para 51. 77 R Cover Justice Accused: Anti-Slavery and the Judiciary Process (1975) at 119-120. 78 Soobramoney (note 5 above) para 58. 79 R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA) at 137c-d, quoted in Soobramoney (note 5 above) para 52. 80 Soobramoney (note 5 above) para 53. 2 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E law dealing with the right to die,81 he concludes that ‘[c]ourts are not the proper place to resolve the agonising personal … problems that underlie these issues’82 (my emphasis) and that ‘[o]ur country’s legal system simply “cannot replace the more intimate struggle that must be borne by the patient … and those who care about the patient” ’83 (my emphasis). The message seems clear: because issues surrounding a person’s death are intensely personal, the court is powerless to address Mr Soobramoney’s plight: ‘[C]onsiderations of the wisdom and utility of the actions that might have been taken are beside the point. Normative debate [about, for instance, whether or not the balance struck ‘between the equally valid entitlements or expectations of a multitude of claimants’84 that had resulted in Mr Soobramoney being denied the treatment he required, was appropriate] is not invited.’85 Questions of death are private, not political. What makes Sachs J’s assertion of this rhetorical depoliticization strategy so startling, is that the US right to die case law he refers to so as to make his point is wholly inapposite. Certainly, when the question is whether or not the state should allow a person who does not want to live anymore to die, the issue whether or not or to what extent a court can prescribe the choice to a patient arises. But Mr Soobramoney was in the opposite position – he very much wanted to live, and the question in his case was whether or not the state is obliged to keep him alive. I fail to see how the issues that arise in determining that question are ‘agonising personal problems’ part of an ‘intimate struggle’ that Mr Soobramoney should be left to go through on his own – the essence of Mr Soobramoney’s claim is after all that the state is obliged to get involved in his life and possible death. How does one make sense of this mistaken analogy? Sachs J could have made his point relying only on the institutional capacity arguments, without having to go any further. Thomas Ross has said that ‘judges invoke the rhetoric of judicial helplessness most fervently when con- fronted with a problem of unjust and tragic dimensions’.86 Perhaps it was precisely the acutely political nature of Mr Soobramoney’s predicament – the tragic fact that his position is compared to that of others, and that the state makes a choice not to intervene in his – that prompted Sachs J to go to such tortuous lengths to justify his and the rest of the Court’s inaction. As such this element of the opinion constitutes an extraordinary flight from politics. A second example of the Constitutional Court’s domestication of needs talk occurs in Groot- boom. The Grootboom community’s claim for shelter was partly based on children’s section 28(1)(c) right to shelter. Although Yacoob J, for the Court, decided the case on the basis of the section 26(1) right of everyone to have access to adequate housing, he did provide an interpreta- tion of section 28(1)(c). The linchpin of this interpretation is a conflation of section 28(1)(c) with section 28(1)(a), which proclaims children’s right ‘to family care or parental care, or to appropri- ate alternative care when removed from the family environment’. In Yacoob J’s words: [Sections 28(1)(b) and 28(1)(c)] must be read together. They ensure that children are properly cared for by their parents or families, and that they receive appropriate alter- native care in the absence of parental or family care … Subsection (1)(b) defines those responsible for giving care while ss (1)(c) lists various aspects of the care entitlement.87 81 Cruzan v Director, Missouri Department of Health, et al 497 US 261 (1990), quoted in Soobramoney (note 5 above) para 56. 82 Soobramoney (note 5 above) para 58. 83 In re Jobes 529 A2d 434 at 451 (NJ SCt, 1987), quoted in Soobramoney (note 5 above) para 58. 84 Soobramoney (note 5 above) para 54. 85 Ross (note 17 above) at 1511. 86 Ibid. 87 Grootboom (note 6 above) para 76. On this basis Yacoob J proceeds to argue that the state has only a residual duty to provide shelter to children – the primary duty to do so rests on parents and family and the state incurs the direct duty to do so only with respect to those children ‘who are removed from their fami- lies’.88 Where children are cared for by their parents or families (are still with their parents or families) the only duty the state carries with respect to them is ‘to provide the legal and admin- istrative infrastructure necessary to ensure that children are accorded the protection contem- plated by s 28’.89 From this Yacoob J’s conclusion follows ineluctably:90 It was not contended that the children who are respondents in this case should be provided with shelter apart from their parents. Those of the respondents in this case who are children are being cared for by their parents; they are not in the care of the State, in any alternative care, or abandoned. [T]herefore, there was no obligation upon the State to provide shelter to those of the respondents who were children. Yacoob J’s interpretative maneuvering clearly ‘directs dependency away from the state [to the fam- ily] and [so] privatizes it’.91 The result is profoundly depoliticizing. It allows Yacoob J simply to ignore the social fact that often children who are ‘properly’ with their parents or family are worse of than those who find themselves in some form of alternative care, because their parents or fami- ly are simply too poor ‘properly’ to care for them. It also allows him to ignore the question whether or not the State has a duty, where children are with their parents or family but in a situation of indi- gence, to provide forms of material care directly to those children. Finally, it allows him to skirt the deeply political question whether or not, in the social provisioning activities of the state, children’s needs should enjoy material priority over the needs of others. As with Sachs J’s opinion in Soobramoney, what makes Yacoob J’s depoliticising strategy in Grootboom all the more remark- able is that it was unnecessary – Yacoob J’s interpretation of sections 28(1)(b) and (c) is certainly not the only interpretation possible, nor even the most obvious. There is no textual reason to sub- sume subsection (1)(c) into subsection (1)(b) as Yacoob J did – the various entitlements listed in the subsections of section 28(1) (there are nine – (a) to (i)) are connected to each other with an ‘and’ and seem to be intended as separate entitlements. It is also a plausible interpretation to say that sub- section (1)(b) refers to the emotional and other non-material aspects of care, whilst subsection (1)(c) lists elements of material care.92 Yacoob J had to make a conscious choice to adopt the interpreta- tion he did, it is not suggested by the text – and his employment of the depoliticizing strategy flow- ing from that interpretation was equally a conscious choice. To some extent my use of these two examples of the domestication of needs talk by the Court is gratuitous. Yacoob J’s interpretation of section 28(1)(c) in Grootboom was reversed in Treatment Action Campaign. The Court still employed Yacoob J’s view that the primary duty to provide shelter, health care, nutrition and social services rests on parents and family, with only an alternative duty falling on the State,93 but extended the circumstances under which this alternative duty would kick in. As the mothers with which the case was concerned were ‘for the most part indigent and unable to gain access to private medical treatment which is beyond their Politics of Need Interpretation 29 88 Ibid para 77. 89 Ibid para 78. 90 Ibid para 79. 91 Fineman (note 16 above) at 2205. 92 See Jooste v Botha 2002 (2) BCLR 187 (T). 93 Treatment Action Campaign (note 7 above) para 75. 3 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E means’ for them and their children, ‘[t]hey and their children are in the main dependent upon the State to make health care services available to them.’94 As a result the state incurred a duty to provide health care services to their children, even though their children were still in their care. In addition, the two instances of domestication that I relate are isolated incidents and cer- tainly cannot be used to indicate a trend. However, the depoliticizing bent of the Court is demonstrated much more clearly in Soobramoney, Grootboom and Treatment Action Cam- paign in the Court’s use of the rhetorical strategy of instrumentalisation – here a trend can be ascertained, and it is this to which I now turn. As could be expected, one of the major concerns of the Constitutional Court’s thus far in its socio-economic rights cases has been to determine the scope of its review powers with respect to socio-economic rights.95 This was particularly so in its first three cases, Soobramoney, Grootboom, and Treatment Action Campaign. In these cases the Court struggled with basic questions such as which kinds of issues that arose in socio-economic rights cases it is compe- tent to engage with at all, what its standard of scrutiny should be there where it does engage with the issues, and what the scope of its power is to provide relief there where it has exercised its review power and found a breach of a socio-economic right. What is interesting is the idiom that the Court has employed to justify the choices it has made in this respect. In its first three cases, the Court has, when engaging with the different questions relat- ed to the nature and scope of its review powers, relied in the first place on ‘institutional capacity’ arguments. That is, what motivates the Court’s decision to limit the scope of its review powers in a particular instance has been its perceived lack of the requisite technical expertise and institutional capacity properly to engage with the issues. The Court has utilized these institutional capacity argu- ments when seeking to justify its choice not to decide a particular question raised in the course of socio-economic rights litigation. In Treatment Action Campaign, for example, the Court explains its decision not to decide whether or not the State’s constitutional duties in terms of section 27(1) requires it to provide formula feed to HIV-positive mothers to prevent the transmission of HIV to their children through breast feeding by saying that this question ‘raises complex issues’ that it does not have the capacity or information on the basis of which to decide.96 The Court’s rejection of the ‘minimum core content’ approach to deciding claims for access to basic resources has equally been motivated with reference to its institutional incapacity to access and analyse the kind and quantity of information that would be required to determine what the minimum core of any given right in any given set of circumstances entails.97 Finally, the Court has justified its adoption of what it has 94 Ibid para 79. 95 As could be expected, because the debate about whether to include socio-economic rights in the 1996 Constitution (for a summary see S Liebenberg ‘Interpretation of Socio-Economic Rights’ in M Chaskalson, J Kentridge, J Klaaren, G Marcus, D Spitz, A Stein & S Woolman (eds) Constitutional Law of South Africa (2nd edition OS, December 2003) chapter 33, 3-4) was a debate about their justiciability and the proposals and counter-proposals made in this respect amounted to proposals about the manner in which courts could exercise their review powers with respect to these rights; see N Haysom ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’ (1992) 8 SAJHR 451; E Mureinik ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8 SAJHR 464; and DM Davis ‘The Case Against the Inclusion Of Socio-Economic Demands In a Bill of Rights Except as Directive Principles’ (1992) 8 SAJHR 475. The subsequent academic debate has also focused the extent of courts’ review power with respect to socio-eco- nomic rights; see eg CR Sunstein ‘Social and Economic Rights? Lessons from South Africa’ (2001) 11:4 Constitutional Forum 123; and T Roux ‘Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court’ (2003) 10 Democratization 92. 96 Treatment Action Campaign (note 7 above) para 128. 97 Grootboom (note 6 above) para 33; Treatment Action Campaign (note 7 above) para 37. called a ‘restrained role’ in reviewing State conduct in light of socio-economic rights, embodied in its ‘reasonableness review’ approach, also with reference to its institutional incapacity.98 The Court’s reliance on these institutional capacity arguments in this respect is in itself uncontroversial. Certainly the Court, when it employs this rhetoric, enters into a depoliticizing discourse – it effectively instrumentalises the questions that it is considering, describing them as ‘technical problems for managers and planners … in contradistinction to political matters.’99 However, although there is room for argument about the extent to which the Court is institu- tionally incapable in any given context,100 it cannot be denied that it is indeed institutionally constrained and that the depoliticisation that it engages in on that basis alone is to some extent inevitable. What does make the Court’s use of this particular instance of ‘instrumentalising’ rhetoric problematic, or more problematic than it would otherwise be, is not so much the fact that it defers, but what it is that it defers to. Central to the Court’s self-limitation of its powers of review and remedy in the three early cases is a second set of arguments: ‘constitutional comi- ty’ arguments. Equally as concerned as the Court is about its institutional incapacity, it is con- cerned about its institutional illegitimacy. When the Court defers, declining to decide a partic- ular issue, or to apply a stringent standard of scrutiny, or to impose an intrusive order, it defers not only to the complexity of the issues at hand, recognizing that it is incapable of deciding them. It also, more importantly, defers to, or defers in favour of the other branches of govern- ment – the executive, the legislature or the state administration – on the understanding that it is, in the context of institutional spheres of power, the inappropriate forum to decide them. In short, the problem with defining the nature and scope of its review powers for the Court ‘comes down mainly, if not solely, to a matter of separation of powers’.101 This is true in all the contexts within which the Court has had occasion to describe the lim- its and nature of its powers. In Soobramoney, Chaskalson P justifies his choice not to engage with the decisions made with respect to the rationing of health care resources that led to Mr Soobramoney’s exclusion from treatment as follows: ‘These choices involve difficult decisions [here is the reference to institutional incapacity] to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. [here is the deference to the other branches of government] A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsi- bility it is to deal with such matters’102 (my emphasis). In Grootboom Yacoob J, in describing the reasonableness review test that the Court fashioned in that case, emphasizes that ‘a court considering reasonableness will not enquire whether other more desirable or favourable meas- ures could have been adopted, or whether public money could have been better spent.’103 Politics of Need Interpretation 31 98 Treatment Action Campaign (note 7 above) para 38: ‘Courts are ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community.’ See also the Court’s justification for the lenient standard of scrutiny adopted in Soobramoney (note 5 above) para 29: ‘A court will be slow to interfere with rational decisions taken in good faith by the political organs and med- ical authorities whose responsibility it is to deal with such matters’. 99 Fraser (note 1 above) at 299. 100 It has, for example, been pointed out that the Court is in fact capable of determining the minimum core with respect to a given right, despite its protestations to the contrary, provided that it understands correct- ly what the minimum core entails; D Bilchitz ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2002) 118 SALJ 484 at 487. 101 FI Michelman ‘The Constitution, Social Rights, and Liberal Political Justification’ (2003) 1 International Journal of Constitutional Law 13 at 15. 102 Soobramoney (note 5 above) para 29. 103 Grootboom (note 6 above) para 41. 3 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Instead, he proceeds, ‘[t]he precise contours and content of the measures to be adopted are pri- marily a matter for the legislature and the Executive’.104 Finally, in Treatment Action Campaign one of the primary motivations for the Court’s decision not to impose structural injunctive relief on the government is its concern that in doing so it will have to prescribe par- ticular policy and rationing choices to it, instead of determining only the contours of what is required and leaving the details of planning and implementation to government itself.105 Certainly, one might argue in favour of the Court that at the heart of its concern with the con- stitutional comity of its engagement with socio-economic rights is a concern with democracy. The Court, acutely aware of its position as the least democratically accountable branch of government, defers to the other branches, because in doing so it believes it respects the democratic will of which the political branches are the repositories.106 But the conception of democracy, or of politics or the political that underlies this concern is a peculiarly limited one. The Court’s concern with constitu- tional comity evinces what Nancy Fraser has described as an institutional understanding of politics and democracy, in terms of which ‘a matter is deemed political if it is handled directly in the insti- tutions of the official governmental system, including parliaments, administrative apparatuses, and the like’107 and in terms of which democracy occurs only within these institutions of the official governmental system. This understanding of democracy and politics stands in contrast to what Fraser describes as a discursive sense of politics, in which ‘something is “political” if it is contested across a range of different discursive arenas and among a range of different publics’ and in which democracy occurs not only in the institutions of the official governmental system, but in all of these (official and unofficial) ‘discursive arenas’ and ‘publics’. Stated differently, the Court’s stance reflects a dependent conception of democracy, according to which democracy takes place only in formally constituted democratic structures, where political questions of, for example, distribution of resources are decided for and the results presented to civil society. Again, this conception stands in contrast to a participatory model of democracy, in which the focus is on creating and maintain- ing structures for the democratic process ‘which maximize the allocation of equal political power to the citizenry’ across the board of the different (official and unofficial) discursive arenas.108 Against this background, it becomes clear that the Court’s instrumentalising rhetoric that it employs to justify its choices with respect to self-limitation of its powers operates to depoliti- cise issues of poverty, need and social provisioning of the State in two respects. First, and most obviously, the Court’s rhetoric depoliticises in that it describes the issues in question as of a technical rather than a political nature. As pointed out above, this can to some extent be seen as inevitable. However, second, the Court’s rhetoric depoliticises in that it relegates the dis- course about these issues, even in their technical sense, wholly to the formally constituted polit- ical branches of government ‘whose responsibility [and right] it is to deal with such matters’.109 104 Ibid. 105 Treatment Action Campaign (note 7 above) paras 96-114 & 129-133. 106 See Roux (note 95 above), who explores the currency that this concern with democratic legitimacy has in the Court’s conception of its review powers, and praises the Court for the extent to which it manages to remain appropriately respectful of democratic prerogatives in this respect. 107 Fraser (note 1 above). 108 Davis (note 95 above) at 488-489. See also E Pieterse & M van Donk ‘The Politics of Socio-Economic Rights in South Africa. Ten Years after Apartheid’ (2004) 5:5 ESR Review 12 at 13: ‘The realisation of socio-economic rights is an inherently political process, which needs to involve rights-holders … in deter- mining the desired outcomes, objectives, strategies and acceptable trade-offs so that they are enabled to take control of their own destinies. This inevitably implies a political process of negotiation, disagreement, con- flict, occasionally consensus, and, at a minimum, forms of mutual accommodation.’ 109 Soobramoney (note 5 above) para 29. The message to those other, unofficial ‘publics’ (social movements, NGO’s, ordinary people) who operate democratically in those other, unofficial ‘discursive arenas’ is therefore not only that the issues that they deal with are difficult ones in a technical sense, requiring of them sus- tained, informed engagement110 which they, like the Court, might not have the capacity for. It is also that the issues are, as with the Court, simply not their business. The Court’s rhetoric casts them not as active participants in the process of interpretation of their needs, engaged in polit- ical action, but as the passive recipients of services – their needs, predefined by the political branches of government, are administered to them through a process of therapeutic assis- tance.111 (C) KHOSA, MODDERKLIP AND PE MUNICIPALITY: TOWARD A DISCURSIVE UNDERSTANDING OF DEMOCRACY? In socio-economic rights decisions of the Constitutional Court and the Supreme Court of Appeal subsequent to Soobramoney, Grootboom and Treatment Action Campaign it is possi- ble to see the beginnings of a countervailing trend in the Court’s rhetoric that is more closely allied to a discursive or participatory conception of politics and democracy and that can in this respect be contrasted to the Constitutional Court’s instrumentalising rhetoric in the earlier three cases. In the first place, in the cases in question (Khosa, Modderklip and PE Municipality) the Constitutional Court and Supreme Court of Appeal have emphasised the political agency of the poor people involved vis-à-vis government by taking its operation into account in interpreting the rights in question. In Khosa Mokgoro J, for example, in finding that the State had a consti- tutional duty to provide social assistance to indigent (non-citizen) permanent residents in South Africa, placed great stock in the fact that permanent residents had through their conduct in effect thrown in their lot with South Africa. In this respect Mokgoro J points out that permanent res- idents intend to become South African citizens, that they have made their homes here and have brought their families here, that for many their children have been born here, that they owe a duty of allegiance to the State112 and that they pay taxes in South Africa.113 As a result, although not yet formally citizens, they have claimed their membership of our community through the exercise of their political agency and deserve to be treated equally as fully fledged such mem- bers.114 In Modderklip Harms J for the Supreme Court of Appeal equally emphasizes the role of the political agency of the property owner and the squatters in determining the resolution of the case. In this respect Harms J points out that the landowner had at all times acted within the law and had throughout sought to effect an amicable solution that would vindicate both his and the squatters’ rights115 and that the squatters had occupied the land without intending to force the hand of the state to provide them with land in preference to others and had also sought to reach an amicable solution both with the landowner and the state.116 These indications of an attitude of political engagement with each other and with the State play an important role in eventually Politics of Need Interpretation 33 110 Wilson (note 41 above) at 447. 111 Habermas (note 25 above) at 210; see also Fraser (note 1 above) at 307. 112 Khosa (note 8 above) para 59. 113 Ibid para 74. 114 Ibid. 115 Modderklip (note 10 above) paras 33, 37 & 38. 116 Ibid para 25. 3 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E persuading the Court to find in favour of both the landowner and the squatters against the State, who by contrast had failed diligently to pursue a settlement and had reneged on agreements reached,117 despite the fact that it had itself caused the predicament of the squatters and the landowner by previously evicting the squatters from state land without providing alternative accommodation.118 Similarly, in PE Municipality, the Constitutional Court emphasises the polit- ical agency of the group of squatters that the State sought to evict there. Again the fact that they had occupied the land in question not in order to force the municipality to provide to them, in preference to others, alternative land when they are eventually evicted, but because they had been evicted from elsewhere and had nowhere else to go119 and that they had attempted to negotiate with the property owners and the State whilst the municipality had made no serious effort to reach an amicable conclusion to the matter, but had rushed to apply for an eviction order and had acted unilaterally,120 partly drove the Court to the conclusion that an eviction order could not be granted unless suitable alternative land or accommodation was provided. Indeed, in PE Municipality these factors, together with others, were seen as so important that the Court took the surprisingly intrusive step of rejecting the municipality’s offer of two possible alternative sites, finding that they were not suitable to the squatters’ needs. Certainly one has to sound a note of caution here. As with any form of community-oriented rhetoric, the Court’s emphasis in these three cases on the ‘proper’ political action of the per- manent residents, the property owner and the squatters runs the risk of being read in an exclu- sionary fashion. So, for example, Mokgoro J explicitly uses this rhetoric to distinguish perma- nent residents from other non-citizens in South Africa and then, on the basis of that distinction to deny other non-citizens membership of the South African community.121 Equally, the two courts’ reference in both Modderklip and PE Municipality to the fact that the squatters in ques- tion had occupied land illegally not with the intention to ‘jump’ the housing queue by forcing government to provide them with alternative accommodation when they were evicted, effec- tively marks the conduct of squatters who have indeed acted with that purpose as ‘improper’ and excludes their conduct (certainly equally born of desperation) from the realm of ‘proper’ political action. In this respect the two courts run the risk of creating an idea of acceptable civic action that one has to comply with in order to form part of the South African political com- munity, excluding other forms of political action.122 Nevertheless, this aspect of the cases is important because at least it casts the permanent residents, property owner and squatters in the role of political actors, actively (and legitimately) engaging in the interpretation of their needs together with the State, who is in turn cast as just one more (albeit particularly authoritative) such participant in the process of need interpretation. In this way it avoids the depoliticising instrumentalist effect of the Constitutional Court’s earlier separation of powers rhetoric. This new concern with participatory democracy and discursive politics shows also in the manner in which the Constitutional Court and the Supreme Court of Appeal exercised and described their remedial powers in the three later cases. This is evident first in Modderklip. Modderklip was presented by the State as an intractable situation. The State argued that it 117 Ibid paras 35-38. 118 Ibid para 35. 119 PE Municipality (note 9 above) paras 49 & 55. 120 Ibid paras 45, 55-57 & 59. 121 Khosa (note 8 above) para 59: ‘For these reasons, I exclude temporary residents …’. 122 See in this respect K van Marle ‘Love, Law and the South African Community: Critical Reflections on “Suspect Intimacies” and “Immanent Subjectivity”’ in H Botha, AJ van der Walt & JWG van der Walt Rights and Democracy in a Transformative Constitution (2004) 231 at 245-246. could not enforce Modderklip’s eviction order against the squatters, because it did not have the resources to do so, particularly as it would have to provide alternative land to the squatters were it to evict them.123 This it would not be able to do also because it did not have the req- uisite resources, but, more importantly, because to provide the squatters with alternative land would allow them to jump the housing queue, thus legitimating unacceptable social behav- iour.124 This stance of the State’s is a particularly clear example of the strategy of naturalisa- tion referred to above: The State throws its hands in the air, overwhelmed by the intractable nature of the problems facing it and so attempts to remove the issues in question from the arena of political contestation. Harms J is unambiguous in his rejection of this strategy. Holding that ‘Courts [and by implication the State] should not be overawed by practical problems’ but should instead ‘mould an order that will provide effective relief to those affected by a constitu- tional breach’125 he proceeds to find a solution where the State said there was none, ordering the State to pay damages to the property owner and to allow the squatters to remain on the land in question until alternative accommodation is found. Harmse J’s ‘can do’ rhetoric pow- erfully counteracts the State’s attempts at depoliticisation and places the kinds of issues that were dealt with in the case (homelessness, land invasion and eviction) squarely back in the domain of political contestation. In addition, because it amounted to the implementation of a proposal that both the property owner and the squatters had made in the course of their attempted negotiations with the State,126 it emphasises the involvement of these non-official political actors in the process of defining their needs and finding ways to satisfy them. As such, it underscores a participatory understanding of democracy and a discursive understanding of politics and counteracts the idea that it is only the State who can engage politically with the issues and then hand down solutions from on high. The repoliticising trend continues in the Constitutional Court’s description of its remedial powers in PE Municipality. Both Grootboom and Treatment Action Campaign have been criti- cised for the Court’s failure to employ structural injunctive relief. In Grootboom, the Court issued a simple declaratory order, leaving the remedy of the constitutional defect in its housing programme entirely to the state.127 In Treatment Action Campaign, the Court similarly issued a declarator, coupled with a mandatory order requiring the state to remedy the constitutional defect in its programme for prevention of MTCT of HIV.128 However, despite confirming that it did indeed have the power to do so, the Court again declined to issue a supervisory interdict, holding that there was no indication that the state would not implement its order properly.129 The critiques of the two cases in this respect have focused on the extent to which the failure to employ such structural relief trenched on the effectiveness of the Court’s remedies.130 However, Dennis Davis has recently instead emphasised the role of such structural relief in promoting dem- ocratic accountability. To him, the failure of the Court to employ structural relief has caused it to miss an opportunity to allow those affected by its judgements to be involved in their imple- mentation as active political agents and as such has undermined the idea of participatory democ- Politics of Need Interpretation 35 123 Modderklip (note 10 above) para 13. 124 Ibid para 29. 125 Ibid para 42. 126 Ibid para 14. 127 Grootboom (note 6 above) para 99. 128 Treatment Action Campaign (note 7 above) para 135. 129 Ibid para 129. 130 See eg K Pillay ‘Implementation of Grootboom: Implications for the Enforcement of Socio-Economic Rights’ (2002) 6 Law, Democracy and Development 255. 3 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E racy.131 In PE Municipality Sachs J seems to heed this call. Although in the event declining to do so,132 Sachs J raises the possibility that a court, in providing a remedy in an eviction case such as the one the Constitutional Court was faced with could order compulsory mediation between the parties. That is, a court could make a normative finding, in the sense of describing the out- comes that the constitutional and other legal duties at play in the case required, but could then order the parties to enter into a process of mediation in order to agree upon the most appropri- ate means with which to reach those outcomes.133 As Charles Sable and William Simon have pointed out,134 this kind of ‘experimentalist’135 structural injunctive relief combines the virtues of the Court requiring constitutional duties to be met in a practically effective way, whilst re- maining respectful of its own institutional incapacity with respect to the substantive issues involved in the implementation of its normative findings. For my purposes it shows a further important virtue. Courts employing such relief would certainly, as Sable and Simon argue, remain appropriately respectful of their own institutional incapacity by deferring to another forum than themselves with respect to the implementation of their orders. However, they will defer in this respect not in favour of the political branches of government only, as the Con- stitutional Court has been wont to do, but to the political process in the wider, discursive sense of the word outlined above. In this way courts would be able to subvert the instrumentalising rhetoric that they seem inevitably to have to engage in when adjudicating socio-economic rights claims and give effect to a participatory, rather than institutional understanding of democracy. IV Conclusion At the outset of this paper I recalled Karl Klare’s challenge to judges and lawyers: In order to give expression to the transformative ethos of the Constitution, they should attempt to work in such a way as to deepen democratic culture in South Africa. I then proceeded to discuss one way in which courts can do so – by avoiding in their socio-economic rights judgements the use and consequent confirmation of rhetorical strategies of depoliticisation commonly used in the political discourse around the interpretation of need and poverty. I pointed to various instances in which courts have used and so confirmed some of these strategies, but also detailed instances in which they subverted these processes of depoliticisation. The countervailing tendencies that I identified, although important, of course do not allow courts to escape or to mediate the ten- sions between rights and democracy that their work is inevitably caught up in – judges contin- ue to operate under freedom and constraint, their work inevitably both guarantees and denies freedom, reinforces and destructs democracy. Nevertheless, the Supreme Court of Appeal and Constitutional Court’s rehabilitation of discursive politics through its emphasis on political agency and use of inventive remedies in Khosa, Modderklip and PE Municipality constitutes an important moment in the ‘deepening of democracy’ that Klare requires. 131 DM Davis ‘Socio-Economic Rights in South Africa. The Record of the Constitutional Court after Ten Years’ (2004) 5:5 ESR Review 3 at 6-7. 132 PE Municipality (note 9 above) para 47. 133 Ibid para 39-46. 134 CF Sable & WH Simon ‘Destabilisation Rights: How Public Law Litigation Succeeds’ (2004) 117 Harvard LR 1016 at 1019 & 1053-1056. 135 As opposed to ‘command-and-control’ injunctive regulation; ibid 1019. New Tools for the Constitutional Bench S TA N A D U P L E S S I S 1 Associate Professor, Department of Economics, Stellenbosch University ‘… on those occasions when the legal process does establish that an infringement on an entrenched right has occurred… The courts have a particular responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal.’2 I Introduction It is highly unlikely that Justice Ackerman referred to positive theories of social change when he called on courts in South Africa to forge new tools in their rights jurisprudence, but I will argue here that such an allusion would not have been amiss. Indeed, such tools are indispensa- ble for a Constitutional Court seeking the realisation of social and economic rights3 as is the case in South Africa. 4 Though the argument of this chapter is formal, the intention is practical and constructed specifically to participate in the present debate on social and economic rights in South Africa. In short, I argue that a constitutional court such as South Africa’s might have to acquire and use explicitly the tools of positive social science – notably of economics – to complement the normative and legal tools already at its disposal. Since the Constitutional Court is already applying social science implicitly, to the extent that it regards social and economic rights as par- tially justiciable, it would be advantageous not only academically, but even more so practical- 1 I wish to thank Ronelle Burger for helpful comments, Gerhard du Plessis for his help with the jurisprudence literature, Gerhard du Toit for considerable help with editing and Thinus Keefe for research assistance. The usual disclaimer applies. 2 Justice Ackerman for the South African Constitutional Court in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 69 (fn omitted). 3 The following sections of the South African Constitution pertain to social and economic rights: section 25(5) (the right to equitable access to land); section 26(1) (the right to adequate housing); section 27(1) (the right of access to health care, adequate food and water and social security and social assistance) and section 28(1) (the right of children to adequate food, shelter, health care and social services). This list is from A J van der Walt ‘A South African Reading of Frank Michelman’s Theory of Social Justice’ in H Botha, AJ van der Walt and J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2003) 163 fn 5. 4 Justice Moseneke argued along similar lines: ‘The Constitution has reconfigured the way judges should do their work. It invites us into a new plane of jurisprudential creativity and self-reflection about legal method, analysis and reasoning consistent with its transformative roles’; see D Moseneke ‘The Fourth Bram Fischer Memorial Lecture: Transformative Adjudication’ (2002) 17 SAJHR 309 at 318. This volume explores var- ious theoretical perspectives on Moseneke’s ‘new plane of jurisprudential creativity’. The intention of this chapter is to broaden this theoretical discussion beyond jurisprudence, as the wide-ranging scope of social and political rights calls the Justices of the Constitutional Court beyond the reach of jurisprudence. 3 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E ly, if the social science of the Constitutional Court was explicit, open to scrutiny and, in that way, open to the possibility of improvement through critical discussion. The first section of this chapter develops an argument for the use of positive theory by the Constitutional Court and contrasts such a theory with normative and legal theories of social and economic rights. However, to assist the practical deliberations of the Constitutional Court requires not only a case for positive theory, but an argument for a specific positive theory. To inform that choice the broad range of such theories is sketched in section III. The fourth section narrows the discussion to one particular theory, the so-called New Institutional Economics, which is a positive theory of the requisite kind and which is gaining widespread theoretical and empirical support in economics. Section V demonstrates how the New Institutional Economics could be used to inform the analysis and enforcement of social and economic rights in South Africa and how the use of such a positive theory often complements the other theoretical perspectives. II Why the Constitutional Court should use Theories of Positive Social Science The explicit provision of social and economic rights in the Bill of Rights and various other arti- cles of South Africa’s 1996 Constitution is widely noted and often applauded.5 South African legal scholars have argued (in this volume and elsewhere) that these rights are justiciable in a comparable manner to the civil and political rights (sometimes called ‘first generation rights’) in the Constitution. This interpretation has found support in the Constitutional Court, where it has been argued that social and economic rights are ‘…at least to some extent, justiciable’.6 The project on ‘Theories of Social Justice’ that gave rise to this volume takes the above as given. In South Africa this understanding of justiciable social and economic rights have to be seen in the context of a developing country with deep poverty combined with unequal access to resources and opportunities that are to a considerable extent due to historical discrimination. Reading the argu- ments for justiciable social and economic rights in the light of these economic and social challenges facing contemporary South Africa resulted in the two hypotheses that informed this project. The first hypothesis is that ‘theory matters’, since theory is likely to influence the jurispru- dence of social and economic rights in South Africa, as elsewhere. The second hypothesis is that ‘theoretical drag’, or the possibility that theory that lagged behind the drive for transformation in South Africa and that theory might, in this way, be delaying material improvement for the most vulnerable sections of the South African population. Against this background, Justice Ackerman’s call for ‘new tools’ (quoted above) is here understood to mean, inter alia, solutions to theoretical drag in the implementation of social and economic rights. It is easy to conceive how theory might matter and to agree that theoretical drag should be avoided, but it is harder to discern the kind(s) of theory that is required. At this point the com- mon ground between the legal and economic literature seems particularly barren, with econo- mists emphasising sustained economic growth as a (perhaps the most) important factor in the progressive realisation of social and economic rights and proposing positive theories of social change to that end. I did not detect a comparable concern with positive theories of social change 5 For example CA Sunstein ‘Social and Economic Rights? Lessons from South Africa’ (2001) Chicago Law and Economics Working Paper no 124 at 4. 6 Ex Parte Chairperson of the Constitutional Assembly 1996 (4) SA 744 (CC) para 78. in the legal literature on social and economic rights in South Africa. 7 Instead the latter contains a rich discussion of normative and legal theories underpinning social and economic rights, some of which have been repeated and extended in this volume. While legal scholars have apparent- ly been concerned with theoretical drag in jurisprudence or ethics, economists have typically been concerned with the possibility of positive theoretical drag. In the service of clarity it might be useful to state explicitly what an economist understands by the distinction between normative and legal theories of social and economic rights on the one hand and positive theories of social change on the other. In this chapter a positive theory of social change is understood to mean a set of arguments (with empirical content) referring to certain changes in society.8 Empirical content is central to that definition and is understood in the critical or Popperian tradition, that is: the empirical content of a theory is provided by potential falsification. Theories with high empirical content make bold statements about the world, and indeed it is the wide range of conceivable experience that might refute such theories that constitute their empirical content. In contrast, theories with low empirical content do not make statements at odds with possible experience.9 An example of a (highly specific) positive theory relevant to the topic under consideration is: rural South Africans would experience a sus- tained rise in average household income if the South African Constitutional Court enjoined the government to implement a basic income grant. A normative theory is here understood to be a set of arguments about the desired relation- ships and/or behaviour between persons, or between persons and their environment (whether the material environment or a spiritual dimension). Whether observed behaviour is presently or conceivably at odds with the normative recommendation does not pose an insurmountable intellectual challenge to normative theories. A relevant example of such a normative theory is: South Africans should support the implementation of the Constitution produced by a demo- cratically representative Constitutional Assembly. Finally, a legal theory is a set of arguments about the nature of the law, acceptable interpretation of the law, or the rights and obligations which derive from the law. Legal theories build on a wide range of principles, of which some are particular to jurisprudence, while others overlap with ethics or even political theory. Liebenberg provides the following summary of an envisaged jurisprudence relevant to justiciable social and economic rights: ‘The jurisprudence will define the nature of the state’s obligations in relation to socio-economic rights, the conditions under which these rights can be claimed, and the nature of the relief that those who turn to the courts can expect’.10 Evidently, the consideration that ‘theory matters’ requires a preliminary answer to the ques- tion: ‘what sort of theory’? If we restrict our attention for the time being to positive theories, then the questions arises: What arguments could be used to evaluate the hypothesis that ‘positive the- ory matters’ for the jurisprudence of social and economic rights? Perhaps it is easiest to answer New Tools for the Constitutional Bench 39 7 This is a vast and rapidly expanding literature, which is the despair of a non-specialist. There is a small over- lap between the legal and economic disciplines domestically but the interdisciplinary discussion has been hampered by a sometimes overly rigid approach to the rights literature on the side of economists and a sometimes overly ideological approach on the side of legal scholars to what has been called neo-liberal eco- nomics. 8 Economists often insist that positive theory of this kind is value neutral; see RA Posner ‘Values and Consequences: An Introduction to Economic Analysis of Law’ (1998) Chicago Law & Economics Working Paper no 53 at 3. 9 For an elaboration of these views see for example KR Popper The Logic of Science (1959) at 41. 10 S Liebenberg ‘South Africa’s Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in Challenging Poverty?’ (2002) 6 Law, Democracy and Development 159 at 160. 4 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E this question in the negative, that is, to demonstrate the consequences of proceeding with the judicial implementation of social and economic rights without considering positive theory. Two subdivisions of the academic literature in economics is highly relevant in this regard. First, the public choice literature provides ample theoretical and empirical reasons for doubting that the outcomes of (especially ambitious) social plans will necessarily match their inten- tions.11 Second, the development economic literature has analysed decades of disappointment with development plans.12 Giving particular content to ‘social transformation’ in South Africa is undoubtedly con- tentious,13 though it almost certainly entails a dimension of economic development. We are not only interested in equitable participation in the economy this year but also, and perhaps more so, we are interested in a sustained rise of the average income and in effective and sustained poverty alleviation. Such changes would be transforming in an economy that has known decades of stagnation and exclusion. The record of frustrated development, especially in Africa, Latin America and South Asia, has provided important refutations of various positive theories of economic development.14 The Constitutional Court could guard against a repetition of similar mistakes by learning the negative lessons of these positive theories. A similar argument could be made for learning the negative lessons recorded in the pub- lic choice literature. In the context of a discussion about the Constitutional Court’s role in the transformation of society (via the interpretation and implementation of social and eco- nomic rights) it seems reasonable to assume that at least the behaviour of the Constitutional Court, but also that of government at all levels, has to be analysed. Most notably, any uncritical belief in the efficiency of government has to be tempered by the public choice analysis of ‘government failures’. Indeed, the public choice literature has undermined the 11 See for example: V Tanzi ‘The Changing Role of the State in the Economy’ (1997) IMF Working Paper WP/97/114 passim; JM Buchanan ‘Politics without Romance’ in JM Buchanan (ed) The Collected Works of James Buchanan. Volume I. The Logical Foundations of Constitutional Liberty (1999) 45; JM Buchanan & RA Musgrave Public Finance and Public Choice. Two Contrasting Visions of the State (2000) passim; V Tanzi ‘The Role of the State and the Quality of the Public Sector’ (2000) IMF Working Paper WP/00/36) passim. 12 See for example P Collier & JW Gunning ‘Explaining African Economic Performance’ (1999) 37 Journal of Economic Literature 64-111; W Easterly The Elusive Quest for Growth (2001) at 23. 13 Moseneke (note 4 above) at 315 quotes Albertyn & Goldblatt approvingly where they argued that trans- formation requires ‘…a complete reconstruction of the state and society…’. It is very difficult and perhaps impossible to pursue such a comprehensive vision with the tools of positive theory as is argued below and also by KR Popper The Poverty of Historicism (1961) at 69; KR Popper ‘Towards a Rational Theory of Tradition’ in KR Popper (ed) Conjectures and Refutations: The Growth of Scientific Knowledge (1992) 120 at 131. An example of the sober view presently ascendant in development economics is Easterly’s conclu- sion that: ‘the problem of making poor countries rich was more difficult than we thought…[and] the rec- ommendations I have given are themselves no panacea – they will take patient incremental work and fur- ther money to implement’: Easterly (note 12 above) at 291. If we take the contextuality of all social relationships and hence all social science seriously, it precludes the possibility of discussing social relations in an as yet unknown society. We are left only with the possi- bility of piecemeal social policy - adjusting for specific problems here and there - and then learning from our mistakes as the unintended consequences of the policies unfold: Popper (note 13 above) at 70. Arguments such as these explain much of the scepticism of Utopian schemes for social reform in economics and other positive social sciences, while such systematic visions of a better tomorrow might remain useful in a differ- ent theoretical setting. 14 The failure of foreign aid to boost economic growth and development in much of the developing world is an important example discussed in, for example, Easterly (note 12 above) at 43. presumption that a centralised solution exists for every decentralised failure in society.15 Returning to justiciable social and economic rights: the Constitutional Court could avoid a repetition of the unfortunate government failures of the last fifty years by learning the lessons of the positive theories of public choice with respect to the scope and limit for action by (i) the Constitutional Court itself, (ii) the national executive, and (iii) local government. While the lessons from public choice and development economics mentioned in the last few paragraph have been essentially negative, there are also constructive reasons for recommending closer attention to positive theories of social change by the Constitutional Court. Assuming that the Constitutional Court wishes to contribute to particular changes in South African society, it stands to reason that the Court would need theories of how these changes might in reality occur. Furthermore, these theories must neither be restricted to the legal theories that inform the legit- imate scope for their action, nor must it be restricted to moral theories of what goals and pri- orities the Constitutional Court ought to be pursuing. Rather, the Constitutional Court has a need to understand whether – and if, then how – the intended consequences of a particular project are likely to arise and, perhaps more importantly, what the unintended consequences of the initiative might be. Such a focus on unintended conse- quences – and hence on the behavioural implications of incentives created by programmes under review – is central to the economic analysis of law which has gained credence in recent years.16 If positive theories of social science matter for social and economic rights, then it follows that ‘theoretical drag’ with respect to such positive theories might also hamper progress on the real- isation of these rights. Accepting the case for a positive theory does not, however, determine the particular positive theory that should be used. The next section considers a range of positive theories relevant to the questions of transformation, economic development and social and eco- nomic rights. III A Spectrum of Positive Theories The eagerly anticipated social transformation of South African society implies changes along two dimensions. The first dimension is economic growth and the economic development of society and the second dimension the degree of equality in the distribution of income and wealth. This project is concerned with the role of rights, notably social and economic rights, in the changes along these two dimensions. In the previous section it was argued that positive theory was important in understanding the role that rights could play in this transformation. Economics is one of the social sciences that offers such positive theories of social change. Economists study decisions and the constraints on these decisions and it is therefore unsurprising that economic theory could provide a useful tool to analyse the role of rights in social change. But there is a broad range of positive theories about social change, and legal scholars and the Constitutional Court will face the difficult task of judging the relative merits of these theories in order to form a rational expectation of how social and economic rights might be connected with actual social change. For the sake of analytical tractability two extreme views are presented here, though the work of leading theorists and econometricians are invariably more subtle, combining elements of New Tools for the Constitutional Bench 41 15 For an elaboration on the theory and support for public choice theory see for example Buchanan (note 11 above). 16 Posner (note 8 above) at 3. 4 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E both. The two ends of the spectrum are the decentralised theories of social change on the one hand and the centralised theories on the other.17 Centralised theories of social change are built around the vision of a centralised authority (usually the state) which takes the initiative and plays a leading role in the process of initiating and sustaining economic development. The theory of a developmental state (developed to explain the experience of notably Japan) is amongst the better known examples of this type, but this end of the spectrum reaches all the way to various forms of socialism. The intuitive appeal of the centralised theories are that they seem rational (at least in the sense of ‘rational planning’) and simple as the main requirements are apparently (i) sufficient resources and (ii) the legiti- mate authority to use these resources for the development plan. This simplicity improves trans- parency with the benefit of raising potential accountability for the planning authority. Centralised theories of social change are relevant to the implementation of social and eco- nomic rights in two ways: first by the sometimes tacit assumption that combination of suffi- cient authority and sufficient resources would very likely lead to the desired social change; and second by various empirically testable hypotheses that can be deduced from the last century of centralised attempts at social change. Though the former of these is empirically empty, the lat- ter is not and economists have checked its empirical record against expectations, with the sober- ing result summarised by Tanzi: …We now have the reality of several decades of expanded state intervention so that expectations can be compared against the results. The results from this experience have been disappointing in many countries, especially in developing countries. There is now ample evidence that large state intervention has not improved the allocation of resources, has not promoted faster growth, has not brought about a better distri- bution of income, and has not provided a more stable economic environment… .18 Despite their leading role in the development of centralised theories of change, economists have also developed decentralised theories of social change dating back to the Scottish Enlight- enment. Since then economists have theorised about the combination of institutions that would yield a peaceful and progressive social order, without making exaggerated assumptions about the moral stature of the citizens or the skill and integrity of the authorities. It was a great dis- covery of the Scottish Enlightenment that a spontaneous social order, and not unavoidable chaos, could obtain in these circumstances.19 A decentralised economy works by allowing individuals to specialise on own initiative and then to provide for the remainder of their needs through exchange. However, decentralised 17 Neither of these theories can be associated with conservative or progressive views of social change as such. In a decentralised society social change can be rapid or slow, progressive or regressive, depending on the scope for decisions by individuals and the decisions they actually make. Likewise, a centralised society might experience progressive or regressive change, and this at a rapid or slow pace, depending on the scope and capacity of government, and the actual decisions taken by authorities. The point is not that economists are agnostic about the likelihood of (say) rapid progressive change in a society (more about that in section IV) but that neither of these theoretical extremes imply a particular type of change as such. 18 Tanzi (note 11 above) at 15. 19 The self-regulated order of a decentralised society has variously been called a ‘spontaneous order’: FA Hayek ‘Individualism: True and False’ in FA Hayek (ed) Individualism and Economic Order (1984) 1 at 7; ‘ordered anarchy’: Buchanan note 11 above or the ‘invisible-hand order’ (by Nozick). The common intuition in these terms is that the social order is not the result of conscious effort by any of its constituent parts. order requires, at a minimum, secure property rights and an extravagant amount of informa- tion. It was not in the tradition of the Scottish Enlightenment to solve this problem of infor- mation by assuming ‘perfect’ knowledge either for individuals or for some social planner. Rather, the emphasis was on people’s epistemological limitations. For Hayek, this modest view of human capacity, or what he calls the ‘…constitutional limitations of man’s knowledge and interests, the fact that he cannot know more than a tiny part of the whole society and that there- fore all that can enter into his motives are the immediate effects which his actions will have in the sphere he knows…’ is central to the solution suggested by Adam Smith and others.20 It is the price mechanism which, in a competitive market, solves this information problem to a satisfactory extent and provides the incentives for using that information. 21 On this view ‘the market’ is the institutional framework, or network of links, within which voluntary exchange manifests itself. Competition is the means by which information is acquired and disseminated along this network, creating in Hayek’s words: ‘…the unity and coherence of the economic sys- tem which we presuppose when we think of it as one market.’22 Notwithstanding the power of this demonstration, it is – as described – only ‘half a theory’. The efficacy of the price system to bring about spontaneous social order is conditional on the gains of specialisation and trade exceeding the costs of trade, and this cannot be assumed. Indeed, for much of history and in most societies, the cost of trading was exceedingly high and prevented the transition to modern decentralised production. The New Institutional Economists, especially Douglass North, have suggested that it is the political and economic institutions (as defined below) in an economy that form the link between the theory of production (by speciali- sation and exchange) and transaction costs that limit the extent of the market.23 This decentralised theory of society, anchored in the vision of material progress through spe- cialisation and trade yields, empirically testable hypotheses about social change that can be test- ed with the data of the last two centuries. Of further interest to this particular project is that constitutions and the rights they define, protect and implement, play a crucial role in the decen- tralised theories of social change. In this way the decentralised theory offers an empirically testable tool for assessing the manner in which to realise, inter alia, social and economic rights. With the benefit of hindsight, economists have come to judge decentralised theories of social change more favourably than centralised theories. This was an important consideration in my decision to focus on one of the decentralised theories of social change in the following section. The analytical scope in New Institutional Economics for analysing the role of rights was a fur- ther reason. New Tools for the Constitutional Bench 43 20 Hayek ‘Individualism’ (note 19 above) at 14. 21 Towards the end of his career Paul Samuelson tried to capture what economists had learnt from the lengthy debate between proponents of decentralised development and those who argued for the ‘feasibility of social- ist rational pricing’ and his conclusion was both gracious (to Hayek, a long standing academic opponent) and modest (in its claims for the decentralised system). ‘Hayek has been persuasive,’ Samuelson admitted ‘…in arguing that experience suggests that only with heavy dependence on market pricing mechanisms can there be realised quasi-efficient and quasi-progressive organisation of societies involving humans as Darwinian history has bequeathed them’: PA Samuelson ‘Some Uneasiness with the Coase Theorem’ (1993) 7 Japan and the World Economy 1 at 7. Efficiency (in the ultimate sense) never obtains, neither in the decen- tralised systems of present day market economies, nor in the unlamented socialist experiments of the twen- tieth century. 22 FA Hayek ‘The Meaning of Competition’ in FA Hayek (ed) Individualism and Economic Order (1984) 92 at 106. 23 DC North ‘Institutions’ (1991) 5 Journal of Economic Perspectives 97 at 102; DC North Institutions, Institutional Change, and Economic Performance (1990) at 27. 4 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E IV New Institutional Economics The vast differences in standard of living – however measured – between the richest and the poorest countries in the world today is mainly a result of differences in sustained economic growth over the last millennium, with a widening of the gap since the industrial revolution.24 Economists have shown that such differences cannot, in the words of Mancur Olson ‘… be explained by differences in the ratio of population to land or natural resources, or by differ- ences in the quality of marketable human capital or personal culture…’.25 ‘The real secret of successful development is the performance of the people concerned,’ as David Landes wrote ‘…but achievement must come from within…’.26 In other words, the social change that is affected by economic development requires a certain kind of society; develop- ment requires a society where many (perhaps most) people can envisage a better future, not only for themselves, but especially for their children. But here is the crux: the path to this bet- ter future must pass through production, not predation; making new wealth, not merely divert- ing wealth from others.27 In such a society people change their behaviour, invest in their own human capital, change the size of their families and invest in the human capital of their chil- dren.28 It is this investment in human capital that unlocks the tremendous latent potential of hither- to poor societies, allowing them to experience catch-up growth as they apply the more recent vintages of knowledge and technology available in a globalising international economy. These technologies can be implemented in local conditions with the logic of trial and error, where potential return rewards risks taken and mistakes are eliminated by the material sanction of the market.29 The process of development described above has an explicit time dimension. Economic devel- opment requires more than the efficient allocation of resources in every period, it requires addi- tionally what North has called ‘adaptive efficiency’; in his words: …[adaptive efficiency] is concerned with the tolerance of a society to the acquisition of knowledge and learning; to a society’s encouragement of innovation, risk-taking, and creative activities of all sorts. The encouragement, via the appropriate institu- tional framework, of trials, experiments, and innovation, is essential because in a world of uncertainty no one knows the ‘correct’ answer to the problems we con- front… .30 24 A Maddison The World Economy: A Millennial Perspective (2002) passim; D Landes The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (2003) passim. 25 M Olson ‘Big Bills left on the Sidewalk: Why Some Nations are Rich, and Others Poor’ in S Knack (ed) Democracy, Governance and Growth (2003) 29 at 47. 26 D Landes The Wealth and Poverty of Nations. Why Some are so Rich and Some so Poor (1998) at 562. 27 S Knack ‘Predation of Production? The Impact of Political, Legal and Social Institutions’ in S Knack (ed) Democracy, Governance and Growth (2003) 1 at 1. 28 RJ Lucas Lectures on Growth Theory (2002) at v. 29 J Diamond Guns, Germs and Steel. The Fates of Human Societies (1997) passim; Landes (note 26 above) passim. 30 DC North ‘On the Economic Role of the State: Comment’ in A Heertje (ed) The Economic Role of the State (1989) 107 at 109. The concept of institutions has become central to economists’ understanding of this dynamic process of change. Formally, institutions are ‘…a set of constraints on behaviour in the form of rules and regulations; a set of procedures to detect deviations from the rules and regulations; and, finally, a set of moral, ethical behavioural norms which define the contours that constrain the way in which the rules and regulations are specified and enforcement is carried out….’,31 or in game-theoretic terms, the institutions are the ‘rules of the game’ of social interaction.32 Institutions can lower transaction costs, thereby facilitating specialisation and exchange, by rendering behaviour more stable and predictable, or in the words of Kasper and Streit: ‘…the key function of institutions is to facilitate order: a systematic, non-random and therefore com- prehensible pattern of actions and events…’.33 Institutions play this central role in the social order, since it is the combination of the formal and informal institutions with the standard con- straints of economics that ‘define the opportunity set of the economy’, as North argued else- where.34 A complex network of institutions – called the institutional matrix – facilitates all social interaction. This matrix is composed of both formal rules (for example the legal code) and informal rules (for example customs and taboos) and is both political (for example proportional representation as a voting rule) and economic (for example tariffs). This institutional matrix, including the formal rules set by government, and the informal rules that command broad adherence create and direct incentives either for productive activity or for rent seeking. Every society offers incentives for both productive activity and rent seek- ing, but economic historians such as North and development economists such as Easterly have argued that the relative weight taken by these two broad groups of incentives are a crucial fac- tor in the long run prosperity of a society.35 ‘People respond to incentives’, as William Easterly36 reminded us of the lesson of elementary economics, and that is the reason why the institutional matrix has such a profound effect on the dynamic efficiency of a society. This effect is mediated through the structure of industrial organisation encouraged, governance in the private and public sector, and flexibility in both public and private sectors.37 North identified two necessary conditions for adaptive efficiency: first, decentralised decision making and second, a feedback mechanism that eliminates errors more or less expeditiously. It is only in adaptively efficient economies where the tremendous potential of specialisation and trade can be realised, as these rely on ‘…contracts across time and space and with unknown second parties…’.38 These contracts cannot exist without a favourable institutional framework, including formal rules such as property rights and a judicial system that enforces contract rights; nor could these contracts exist without informal rules, such as a high degree of trust and respect for the formal rules. New Tools for the Constitutional Bench 45 31 DC North ‘Transaction Costs, Institutions, and Economic History’ (1984) 140 Journal of Institutional and Theoretical Economics 7 at 7-8. 32 DC North (note 23 above) at 3 33 W Kasper & M E Streit Institutional Economics: Social Order and Public Policy (1998) at 28. 34 DC North ‘Five Propositions about Institutional Change’ in J Knight & I Sened (ed) Explaining Social Institutions (1995) 15 at 15. 35 North (note 34 above); Easterly (note 11 above) passim. 36 Easterly (note 11 above) at 177. 37 North (note 30 above) at 109. 38 North (note 30 above) at 109. 4 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Such an institutional approach accords an important role to the State. Kasper and Streit list a number of reasons why government enforcement of institutions are often desirable, including the state’s comparative advantage in power; government’s credibility; the potential ambiguity of internal rules; the ability of the state to implement rules dispassionately; free riding; the tragedy of the commons and finally, prisoner-dilemma type situations can often be resolved with credible external commitments. In the next section constitutional rights are regarded as important examples of such formal institutions. Mancur Olsen has shown how the distribution of favourable institutions internationally helps us to untangle some of the puzzling stylised facts of economic growth, for example that poor countries would not, unconditionally, be catching up with the rich countries, but that some poor countries – those with favourable institutions, creating adaptive efficiency – would enjoy catch-up growth. 39 This is not a circular argument, with Olsen, North and others equating ‘good institutions’ ex post to those institutions found in rich or fast growing countries. On the contrary, it is a posi- tive theory of social change that yields empirically testable hypotheses (using various measures of institutional quality).40 There is an extensive literature that applies institutional economics to economic history. Douglass North and Mancur Olson have been seminal in this field.41 Other important contributions have been made inter alia by Baumol, Eggertsson, Grilli, Masciandaro and Tabellini, de Long and Shleifer and Acemoglu.42 More recently, the empirical importance of institutions has been investigated using formal econometric tests. Some of these use simple graphical correlations between various measures of ‘good governance’ and different dimensions of economic performance.43 More sophisticated econometric techniques were used by inter alia Knack and Keefer, Hall and Jones, Clague, Keefer, Knack and Olson, Acemoglu, Johnson and Robinson and Rodrik, Subramanian and Trebbi to investigate the importance of empirical relevance of institutions in economic growth.44 In summary, the positive analysis of economic growth (in a vast literature that has received considerable attention from economists over the last twenty years) has yielded the ten- 39 ‘We know some institutional remedies that help matters, even if they are no panaceas. If only rule of law, democracy, independent central banks, independent finance ministers, and other good-quality institutions can be put in place, the endless cycle of bad policies and poor growth can come to an end’: Easterly (note 11 above) at 279. 40 A critical review of these attempts to quantify institutional quality is offered by J Aron ‘Growth and Institutions: A Review of Evidence’ (2000) 15(1) The World Bank Observer 99. 41 North (note 31 above) passim; North (note 30 above) passim; North (note 34 above) passim; Olsen ‘The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities’ (1982) passim. 42 WJ Baumol. ‘Entrepreneurship: Productive, Unproductive and Destructive’ (1990) 89 Journal of Political Economy 893; T Eggertsson Economic Behaviour and Institutions (1990) passim; V Grilli, D Masciandaro et al ‘Institutions and Policies’ (1991) Economic Policy 341; JB de Long & A Shleifer ‘Princes and Merchants: European City Growth before the Industrial Revolution’ (1993) 36 Journal of Law and Economics 671; D Acemoglu ‘Root Causes. A Historical Approach to Assessing the Role of Institutions in Economic Development’ (2003) 40 Finance and Development 27. 43 A typical example is the strong positive correlation between the number of procedures required for regis- tering a new business and an index measuring corruption in the same economy. See World Bank World Development Report 2002. Building Institutions for Markets (2002) at 7. 44 S Knack & P Keefer ‘Institutions and Economic Performance: Cross Country Tests Using Alternative Institutional Measures’ (1995) 7 Economics and Politics 207; R Hall & CI Jones ‘Why do Some Countries Produce so Much More Output per Worker than Others’ (1999) 114 Quarterly Journal of Economics 83; Acemoglu (note 42 above); D Rodrik, A Subramanian et al ‘Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development’ (2002) NBER Working Paper 9305. tative conclusion that institutions (as defined here) are amongst the most central determinants of long run growth and economic development. These institutions are also crucial for the sus- tained productivity growth which is the other major determinant of sustained technological growth. Taken together, the importance (even dominance) of institutions and technology growth undermine the sometimes intuitive view that economic development is mainly a matter of acquiring more resources.45 This result has an important implication for the progressive realisation of social and eco- nomic rights. It should shift the attention of government and the Constitutional Court from an exclusive concern with mobilising resources to a focus on the institutional matrix in society and the considerable role that government and the Constitutional Court play in the maintenance and evolution of that matrix. 46 The interest in this project lies beyond establishing the theoretical and empirical impor- tance of institutions, though. At stake is the difficult issue of institutional change and specif- ically how the Constitutional Court might participate in the institutional change associated with the realisation of social and economic rights in South Africa. The institutional literature referred to above includes theories of social change which incorporates positive and negative rights as institutions and which explains the observed international distribution of material prosperity. North derived two important implications of the theory of institutional change from this literature: firstly, that institutional change is likely to be incremental and secondly, that insti- tutional change is likely to be path dependent. 47 Both observations have interesting impli- cations for the possibility of theoretical drag in the realisation of social and economic rights. If institutional change is mostly gradual, as opposed to revolutionary, then we should adapt our expectations of the time horizon involved in the realisation of such change accordingly. This is not a defeatist attitude; rather it utilises the theoretical modelling of institutional change, and the historical record, to inform reasonable expectations. It is important for all the stakeholders in society, but especially for the Constitutional Court in this regard, to have reasonable expec- tations regarding the horizon over which institutional change occurs. The importance of reasonable expectations is closely associated with the likely path depend- ence of institutional change. The latter means that changes to the institutional matrix (that will affect the relative incentives for productive activity and rent seeking) have to be approached very carefully, as the possibility of ending in an underdevelopment trap is not simply theoreti- cal. Indeed, dozens of societies remain trapped in such circumstances today.48 It follows that the Constitutional Court should, as it wrestles with the interpretation and realisation of social and economic rights in South Africa, bear in mind the incremental character of institutional change and the path dependency which both raises the importance of moving forward in pres- ent circumstances and of avoiding injudicious moves down an ill-fated path where rent-seeking dominates productive choices. New Tools for the Constitutional Bench 47 45 Easterly (note 11 above) at 279. 46 The present literature on economic growth is, therefore, at odds with claims made in this regard by, for example, Chetty that ‘the pace and extent of development is ultimately determined by the resource con- straints’. See K Chetty ‘The Public Finance Implications of Recent Socio-Economic Rights Judgments’ (2002) 6 Law, Democracy and Development 231 at 234. 47 This emphasis on the slow moving and contextualised evolution of institutions reminds of Popper’s case for piecemeal social reform mentioned above (note 13). See also North (note 34 above) at 15. 48 Easterly (note 11 above) at 163. 4 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E V Rights as Institutions The New Institutional Economics provides an analytical framework for thinking about rights as an important subset of the institutional framework. Such a framework is useful to analyse both the role played by various rights in a given society and the role-players involved in secur- ing and exercising the rights. Thinking about rights as institutions provides a perspective in the rights literature that is complementary to perspectives gained from the philosophical and legal literature. Of particular interest for the purposes of this project is that the perspective gained from the New Institutional Economics offers one bridge between normative theories and legal analysis of social and political rights on the one hand and positive theories of social change (in which these rights play a central role) on the other. 49 First generation human rights are often called negative freedoms as they require the protec- tion of a private sphere of control.50 It is often advantageous for these rights to be defined and maintained by a state. The definition and maintenance of property rights is a typical – and for economists crucially important – example of an institution that lowers transaction costs as dis- cussed above. Second generation human rights, such as the right to health care, to education, to housing, employment and so on, are ‘positive rights’ in Berlin’s terminology.51 In contrast with the pri- vate sphere of control created by the first generation rights, the second-generation rights are aimed at empowering people to participate in society by providing access to resources and by defining a certain minimum standard of living.52 These rights, and the manner of their realisa- tion, also affect the incentives in society considerably. However their impact on incentives is not necessarily in the same manner as that of the first generation rights, nor necessarily even in the same direction. Economists have studied the respective roles of positive and negative rights in the institu- tional matrix. Specifically, economists are concerned with the potential behavioural implica- tions of different ways in which the realisation of rights could obtain. For example, economists are concerned with the intended but also with the unintended consequences of any intervention such as the definition of a minimum core for the concept of socio-economic rights by the Constitutional Court. To this end economists use their rational choice theory to trace the intended and unintended consequence of such institutional innovations.53 In the modern economics literature such concerns have been formalised in the Lucas-critique, according to which policy authorities should realise that behaviour in society will not be invari- ant to policy interventions.54 Behaviour and policies interact in this dynamic manner since poli- cies change the incentives of private and public decision makers. The same is true of social and 49 The New Institutional Economics analytical framework also provides alternative theories of the emergence of rights, but that falls beyond the scope of this project. I Sened ‘The Emergence of Individual Rights’ in J Knight & I Sened (ed) Explaining Social Institutions (1995) 161, offers an interesting recent example. 50 For A Sen ‘The Possibility of Social Choice’ (1999) 89 American Economic Review 349 at 363, these neg- ative liberties (or rights) constitute the ‘process aspect’ of liberty, that is the ‘choices over private domains, no matter what we may or may not achieve’. 51 I Berlin ‘Two Concepts of Liberty’ in I Berlin Fours Essays on Liberty (1969) 118. 52 For Sen (note 50 above) at 363 these positive rights define the ‘opportunity aspect’ of liberty, that is they ‘…can help us to achieve what we would choose to achieve in our respective private domains.’ 53 Posner (note 8 above) at 3. 54 RJ Lucas ‘Econometric Policy Evaluation: A Critique’ in K Brunner & AH Meltzer (ed) The Phillips Curve and Labour Markets (1976) 19 at 25. economic (and indeed, civil and political) rights, as has been demonstrated by the New Institutional Literature referred to above. The implication of the Lucas-critique for constitutional courts is similar to the implication for other policy authorities, that is: the Constitutional Court requires a fully articulated behav- ioural model (as opposed to broad stylised facts and general behavioural observations) before it can responsibly anticipate the outcomes of its decisions with respect to, inter alia, changes in the implementation of social and economic rights. In other words, the Constitutional Court requires a positive theory of behaviour in society, calibrated with the behavioural parameters of the actual society, in addition to the normative parameters of the society towards which the Court or anybody else may be striving. And the Court should not impose normative or ideo- logical priors on the role of various rights in such a positive theory of behaviour and social change. Though legal scholars have also been enthusiastic to attribute an important role to rights in their theory of social change, their analysis has often been strikingly different form that sketched in the preceding paragraphs. Scholars such as de Vos and Klare have drawn strong conclusions about the role of social and economic rights in support of the transformative char- acter of the South African Constitution and the apparent impediment of negative rights in that regard.55 Many of these accounts share the assumption that South Africa’s particular history required transformative social and economic rights to prevent a Bill of (first generation) Rights from preserving the unjust economic and social status quo. Pierre de Vos identified a negative component of a right that ‘…places a duty on the state to respect the specific right by not interfering with its enjoyment…[which] is the non-transforma- tive aspect of the right, as it attempts to preserve the existing situation in a society without ref- erence to the larger social and economic context or the transformative goals of the Constitution’; and again ‘there will, of course, often be a tension between the negative and pos- itive aspects of the various rights because the negative aspect of the right is primarily aimed at freezing the status quo while the positive aspect is aimed at achieving a society that would look dramatically different from the one we live in now’.56 Hanri Mostert refers to the ‘inherent contradictions’ of ‘assuming that the constitutional pro- tection and regulation of private property in South Africa is a tool for both protecting individ- ual freedom and security and initiating social change’.57 In the fourth Bram Fischer memorial lecture Justice Moseneke was also emphatic in carving a role for the Constitutional Court as an agent of transformation: ‘… the Constitution enjoins the judiciary to uphold and advance its transformative design’ and ‘…transformative adjudica- New Tools for the Constitutional Bench 49 55 P de Vos ‘Grootboom, the Right of Access to Housing and Substantive Equality as Contextual Fairness’ (2001) 17 SAJHR 258 at 260; K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146 at 169. Sunstein (note 5 above) at 4 distinguishes between broadly ‘preservative’ and broadly ‘transformative’ constitutions and classifies South Africa’s Final Constitution as ‘… the world’s leading example of a transformative constitution’. It is possible to read a tension between Sunstein’s favourable analysis of the transformative character of the South African Constitution and his concerns a decade earli- er in CA Sunstein ‘On Property and Constitutionalism’ (1991) Chicago Law and Economics Working Paper no 3 at 14, where he expressed serious reservations about the inclusion of ‘aspirations’ in a constitution. For a number of other perspectives on the concept of a transformative constitution and the associated role of rights see the volume edited by H Botha, AJ van der Walt & J van der Walt (note 3 above). 56 De Vos (note 55 above) at 273-274. 57 H Mostert ‘Liberty, Social Responsibility and Fairness in the Context of Constitutional Property Protection and Regulation’ in H Botha, AJ van der Walt & J van der Walt (eds) (note 3 above) 131 at 131. 5 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E tion must be put to the task of achieving (in conjunction with the other organs of the state and diverse organs of civil society) social redistributive justice. The primary purpose of the Constitution is to intervene in unjust, uneven and impermissible power and resource distribu- tions, in order to restore substantive equality, permissive or tolerable in a country, which has committed to foundational values such as are found in our Constitution’.58 Dennis Davis argued that if negative rights that protect a private sphere of control were priv- ileged by the Constitution and the Constitutional Court then ‘…much of the apartheid legacy would continue to be immune from the imperative of changing the essentials of apartheid soci- ety…’.59 On this issue the economic and legal literatures are evidently at odds. The description of rights as institutions above did not mention preserving the status quo. On the contrary, the dis- cussion emphasised that first generation rights, inter alia, are an integral part of a theory of social change. The gap between the two approaches is especially wide with respect to a claim, such as that of de Vos, that there is an ‘obvious’ tension between negative and positive aspects of rights in their transformative impact.60 Klaaren gives a concrete character to this tension by referring to a spectrum along which one might place the different understandings of the transformative potential of a constitution, start- ing with a minimal interpretation of a classically liberal type at one end and ending with a ‘rad- ically democratic’ interpretation at the other.61 The positive study of actual change in society (as described above) does not lend itself to such a one dimensional ranking. It might be true that the associated social change in what Klaaren characterises as a classically liberal under- standing of the Constitution is decentralised, but that does not detract from (i) the dynamic character of decentralised societies, or (ii) the magnitude of the change that has occurred in these societies over the past two centuries, nor (iii) from the widespread distribution of benefits in developed societies.62 The dynamic contribution of, for example, property rights to social change is associated with the incentives it creates as an institution:63 firstly, it creates incentives for the efficient alloca- 58 Moseneke (note 4 above) at 314, 318. 59 D Davis ’Elegy to Transformative Constitutionalism’ in H Botha, AJ van der Walt & J van der Walt (eds) (note 3 above) 57 at 58. 60 De Vos (note 55 above) at 274. M Pieterse ‘Beyond the Welfare State: Globalisation of Neo-liberal Culture and the Constitutional Protection of Social and Economic Rights in South Africa’ (2003) 14 Stellenbosch LR 3 at 18 chooses to articulate this tension in an analytical scheme whereby civil and political rights are associated with a ‘neo-liberal’ ideology of the state’s role in a market economy. In his ideological discourse Pieterse argues that neo-liberalist conceptions of society are ‘…contrary to the goals of social transforma- tion in that it requires that current distribution patterns are to be left intact…’. 61 J Klaaren ‘An Institutional Interpretation of Socio-Economic Rights and Judicial Remedies after TAC’ in H Botha, AJ van der Walt & J van der Walt (eds) (note 3 above) 105 at 107. 62 RJ Lucas ‘Some Macroeconomics for the 21st Century’ (2000) 14 Journal of Economic Perspectives 159 at 166. 63 This dynamic interpretation of, for example, property rights is not restricted to the economics literature. Legal scholars such as Cass Sunstein have acknowledged the same, for example: CR Sunstein ‘On Property and Constitutionalism’ (1991) Chicago Law and Economics Working Paper no 3 at 11. But Sunstein (note 63 above) at 11 goes further to argue that property rights are not just crucial to economic development and change, but added the political philosophy proposition that ‘…one of the best ways to destroy a democrat- ic system is to ensure that the distribution of wealth and resources is unstable and constantly up for new evaluation by the political process…a constitutional system that respects private property should be regard- ed, not as an effort to oppose liberal rights to collective self-government, but instead as a way to fortify dem- ocratic processes’. While that argument is not pursued in this chapter, it is consistent with and reinforces the ideas stated here. Further, he added immediately that a system of property rights requires the support of a tion of productive resources by allowing the property owner to appropriate the gains of em- ploying different factors of production. Secondly, property rights facilitate the complex co-ordi- nation of decentralised decisions that characterise a market economy and that avoids the rela- tively clumsy coordination of a centralised system. Thirdly, property rights offer one (often particularly efficient) solution to the problem of externalities. Mainstream economics predict many adverse consequences from the imprecise de jure and de facto allocation of property rights, including the tragedy of the commons and under-provision due to externalities.64 Finally, as explored in the previous section, property rights lower transaction costs and contribute to the stability and predictability of behaviour which is crucial for the dynamic efficiency brought by specialisation and trade in a decen- tralised system. Absent such rights, transactions are often prohibitively expensive due to the arbitrary behaviour of contracted parties and the unenforceability of agreements. In such a state of affairs the incentives for investing in physical and human capital as well as technolo- gy – three components crucial to economic development – are seriously compromised. In contrast with many legal scholars, economists argue (using a theory consistent with the historical record and econometric investigation) that the private sector is often the most dynam- ic force in society, while the public sector has often prevented the transformation of society. 65 Or, as William Easterly expressed the same argument more forcefully: ‘Because becoming rich – that is, growth – is so sensitive to the incentive to lower present consumption in return for higher future income, anything that mucks up that incentive will affect growth. The suspect for mucking up incentives is government’.66 Economic development, or the transformation to greater and shared prosperity, is not something that is done to a country (not by any branch of government); it is generally a decentralised and highly complex process which society effects on herself, given (at a minimum) a favourable institutional setting. Hayek has long since argued that a desire for change does not, as such, prejudge the choice of social and political model.67 A desire for the change associated with economic development does not prejudge whether that change should be centralised or decentralised. The desire for transformation in South Africa does not, therefore, prejudge whether such change should be centralised or decentralised; whether the Constitution should provide the framework against which the transformation of this society is to unfold, or whether it should be a tool with which the Constitutional Court will transform society. Such issues cannot be settled a priori, or on normative grounds, as Edmund Burke observed about the revolution in France: ‘The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori…[since] very New Tools for the Constitutional Bench 51 system of social and economic rights to create not ‘economic equality – a truly disastrous goal – but instead to bring about genuine equality of opportunity and, freedom, for all people in society, from desperate con- ditions’: Sunstein (note 63 above) at 12. 64 RH Coase ‘The Institutional Structure of Production’ in RH Coase (ed) Essays on Economics and Economists (1994) 3 at 10. 65 North (note 23 above) passim. In contrast, Pieterse (note 60 above) at 15 claims that the ‘evidence is over- whelming that [economic growth does]… not translate into better conditions for citizens’. The latter is admittedly an extreme version of the view that there is a tension between growth-supporting civil and polit- ical rights and socio-economic rights. It is also an empirical view that is unsupported by the data. See D Dollar & A Kraay ‘Growth is Good for the Poor’ (2001) World Bank Policy Research Working Paper Series 2587; X Sala-i-Martin ‘The World Distribution of Income’ (2002) NBER Working Paper 8933. 66 Easterly (note 11 above) at 235. 67 FA Hayek The Constitution of Liberty (1960) at 399. 5 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions’.68 A positive theory of social change is required to judge which of these two models are more likely to support social transformation in South Africa. Absent such a theory, the Constitutional Court cannot judge how it might contribute to social transformation, except if the justices held the Utopian doctrine that amassing enough (political and economic) power is sufficient to see their project carried through. Moseneke escaped from this Utopianism danger by the mecha- nism of accountability. Constitutional Court Justices should, Moseneke argued, understand that they ‘are responsible for the social and distributive consequences that result from these choices, and should be judged accordingly’.69 But in this way Moseneke moved a long way towards a positive theory where monitoring of actual outcomes and (possibly) decentralised evaluation occurs. This small step by Moseneke seems most promising for this project about theories of social justice. Despite the discordance mentioned in this section, the success of the collaborative effort between economists and jurists in the field of law and economics, which has improved both our understanding of society and our understanding of the implications of the legal system, demon- strates that the positive theory of economics and legal theory might often be complementary.70 The ‘social and distributive consequences’ at stake in this consideration of social and econom- ic rights are, in addition to all their normative connotations, fundamentally empirical. This sug- gests a field where economists and jurists might cooperate to sharpen the theoretical hypothe- sis and the relevant empirical tests. 71 A positive theory of social change will also be required if the Constitutional Court is to adju- dicate the many issues that follow from having included social and economic rights in the Constitution. Here is a short list of contemporary examples: 1. The long term affordability as well as the incentive effects of the proposed basic income grant.72 2. The implications for monetary policy, wage negotiations, inflation expectations and so on, if social assistance was index-linked.73 3. The impact on the future supply and cost of medical services if the ‘certificate of need’ (Chapter 6 of the National Health Bill) for health care professionals impinges on the right of individuals to choose the location of their practise. 4. The impact of an expanded social assistance network on economic growth. Liebenberg refers to ‘…strong arguments… that social assistance programmes complement and support economic growth’ but offers no evidence to support these arguments.74 68 E Burke ‘Reflections on the Revolution in France’ in E Burke (ed) On Taste; On the Sublime and Beautiful; Reflections on the French Revolution; A Letter to a Noble Lord (1937) 143 at 198-199. 69 Moseneke (note 4 above) at 317. 70 RH Coase ‘Economics and Contiguous Disciplines’ in RH Coase (ed) (note 64 above) 34 at 37. 71 Justice Posner cautioned that ‘…the taste for fact that I would like to see developed in judges and law pro- fessors will turn to gall if unaccompanied by a taste for theory – not normative theory, so not what passes for theory in constitutional law, but positive theory, economic or otherwise, that guides the search for sig- nificant facts’. See RA Posner Overcoming Law (1995) at 427. 72 S Liebenberg ‘The Right to Social Assistence: The Implications of Grootboom for Policy Reform in South Africa’ (2001)17 SAJHR 231 at 254. 73 Liebenberg (note 72 above) at 241. 74 Liebenberg (note 72 above) at 256. Economics can provide the positive theory needed to complement legal theory in these cases, as has occurred in the USA in recent decades.75 Gauri provides a recent example of how positive economic theory could be used explicitly in the service of justiciable social and economic rights.76 She disputes the sometimes sharp delineation between an ‘economic approach’ to social and economic rights that focuses on incentives and the role of markets and prices on the on hand and a ‘rights based approach’ focusing on Constitutional Law on the other. In specif- ic examples – Gauri considers health care and education provision in Brazil – the two approach- es often require complementary interventions.77 There is no disagreement between the positive and normative approaches on the importance of, for example, improved health care provision for all citizens, especially the poor. Whereas the normative theories might emphasise the role of basic health care in almost any conception of a decent and responsible life or appeal to the wide ranging ‘equality clause’ in the South African Constitution, positive theories emphasise the importance of such health care as an enabling step that allows a person to participate socially and productively. In practice the two approaches would often meet, as in the TAC case where both normative and positive evaluation of the existing government programme concurred. 78 Notwithstanding this scope for agreement, a constitutional court which hopes to encourage transformation through justiciable social and economic rights will have to incorporate positive theory when undertaking judicial review of positive programmes. The relevant positive theory in such a case goes beyond the cost-benefit analysis often associated with economics79 to con- sider the institutional nature of principal-agent problems80 associated with many policies.81 Indeed, Barberton contrasts two interpretations of ‘progressive realisation of social and eco- nomic rights, from the perspective of economics, with the first focused on inputs and the sec- ond on outputs.82 This distinction becomes non-trivial when considering the principal-agent problem inherent to a focus on outcomes. From the principal-agent or ‘outcomes’ perspective New Tools for the Constitutional Bench 53 75 Posner (note 8 above) at 2. 76 V Gauri ‘Social Rights and Economics. Claims to Health Care and Education in Developing Countries’ (2003) World Bank Policy Research Paper 3006 at 3. 77 Gauri (note 76 above) at 11. 78 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) at 116, 122, 130, 131. 79 This perspective also moves beyond considering the social and economic context of the problem. While the context is often an important part of the analysis, the institutional concern is explicitly dynamic and with a dynamic analysis the present context can only ever be a starting point. 80 A principal-agent problem arises when one party (called the principal) is interested in certain ‘good’ behav- iour by another party (called the agent) but the principal either has insufficient information or insufficient means to ensure the desired behaviour by the agent. These problems typically occur when the agent’s goal is unclear, unobservable or otherwise hard or expensive to monitor, or where the principal and agent have different goals. In these circumstances, the incentive effect of the contract between the principal and agent can have a material effect on the behaviour of the agent and hence the efficiency of the outcome from the principal’s perspective. See JE Stiglitz ‘Principal and Agent’ in J Eatwell, M Milgate & P Newman (eds) The New Palgrave Dictionary of Economics (1987) 966 at 967. 81 Principal-agent problems are central to the attempts at progressively realising many social and economic rights. Education is a case in point in South Africa where a massive expansion in resources devoted to pri- mary and secondary education has yet failed to deliver an improvement in the quality of education offered. See S van der Berg & R Burger ‘Social Delivery in South Africa’ (2003) Stellenbosch Report prepared for the CDE. By implication, judicial review of programmes related to these rights have to grapple with the insti- tutional features of the policy that shape the incentives for public and private behaviour. 82 C Barberton ‘“Progressive Realisation” of Socio-Economic Rights’ (1999) 2 Economic and Social Rights Review 1 at 2. 5 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E the judicial review of programmes for the progressive realisation of social and economic rights has to consider issues such as transparency, accountability, monitoring and other features that affect the incentives of public and private behaviour under such programmes. Solving a principal-agent problem requires explicit attention to the flow of information (and hence focus on transparency and participation) to monitoring (with a consequent focus on accountability and empowerment) and to the incentives created by any policy or judicial review of that policy. It is the analysis of incentive effects which often distinguishes the positive ap- proach from the normative approach when the emphasis shifts to moral hazard and adverse selection considerations. Principal-agent problems require a careful design of incentives to align the expected behav- iour of the agent (the government in many social rights cases) with the goals of the principal (the presently disadvantaged in a typical rights case). In positive economic theory it is institu- tions which shape these incentives and it was argued above that rights can often be understood as a subset of these institutions. However, there is no unique combination of institutions which is invariably optimal for all societies or for the same society at different times. On the contrary, the optimality of institutions – and hence of optimal role of social and economic rights – requires a positive analysis of the existing matrix of formal and informal institutions, to ensure that changes (motivated by an appeal to rights) do not create perverse incentives. Such an analy- sis of incentives, information flow, transparency and accountability, is an application of a pos- itive theory of social change, and the arguments of such a theory are what I have called the ‘new tools for the Constitutional Bench’ in this chapter. New tools from the positive social science should, on the argument in this chapter, be added to the tests of reasonableness which the Constitutional court has used in its judicial review of social-economic rights cases to date, notably the Soobramooney,83 Grootboom84 and TAC85 cases. The Constitutional Court spelled out this reasonableness test at some length in Groot- boom, arguing that: …A reasonable programme therefore must clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available…Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well directed policies and programmes by the exec- utive. These policies must be reasonable both in their conception and their imple- mentation…balanced and flexible and make provision for attention to housing crises and to short, medium and long term needs…those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right…86 It is not possible for the Constitutional Court to carry out the judicial review envisaged by its own test of reasonableness without engaging in positive social science.87 Absent positive 83 Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) 765 (CC). 84 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). 85 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC). 86 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) at para 39-44. 87 D Brand ’The Proceduralisation of South African Socio-Economic Rights Jurisprudence, or ‘What are Socio- Economic Rights For?’ in H Botha, AJ van der Walt & J van der Walt (eds) (note 3 above) fn 45 has sug- social science the Court will not be in a position to weigh intended and unintended conse- quences – and the issues here are not those of cost-benefit analysis alone, but especially princi- pal-agent problems. Further the Court would not know whether a proposed programme falls within the set of reasonably conceived programmes without method and knowledge to judge the empirical literature that evaluates such policies. Nor is this an attempt to push the Court into a new field or endeavour. On the contrary, the Court is already practicing social science when it implements its own reasonableness test. VI Conclusion In this chapter I argued that accepting the inclusion of socio-economic rights in a Constitution such as South Africa’s with a transformative vision does not prejudge whether such transfor- mation should be centralised or decentralised; socio-economic rights are compatible with both. Understanding the actual transformation of societies, however, requires a positive theory of social change and it was suggested above that economics could offer a successful positive the- ory of decentralised change that can analyse the role of rights as institutions in social change. This theory – drawn from the New Institutional Economics – does not model the same tension between first and second generation rights in the process of social change as is often presumed a priori in the legal literature. For this reason alone the theory would be useful to consider. But there are two further reasons for including the New Institutional Economics in the new tools of the Constitutional Bench, that is: it offers a logically and empirically successful positive the- ory of social change and it informs the social science implicit in the Court’s own test of rea- sonableness. New Tools for the Constitutional Bench 55 gested as much when he suggested that within a model of judicial review the standard of scrutiny in the ‘means -ends’ reasonableness model evidently adopted by the Constitutional Court operates on two levels: first, an indication of how the Court will decide whether a programme is appropriately related to the stat- ed goal and second, the burden of proof or evidence or persuasion that the Court will require of the parties in such a matter. A positive theory of social science is well suited to addressing these questions. Social Justice and Theological Method FA N I E D U T O I T Programme Manager, Institute for Justice and Reconciliation, Cape Town; Associated Researcher, Faculty of Theology, Stellenbosch University The Spirit of the Lord has been given to me. For he has anointed me. He has sent me to bring good news to the poor, To proclaim liberty to the captives And to the blind new sight, To set the downtrodden free To proclaim the Lord’s year of favour.1 I Introduction A range of religions envision utopian societies as their ultimate goal. In the Torah, a time is pre- dicted when a ‘river of justice’ will flood the land. Everyone will be given enough to eat. Each person will receive a home. The weakest and poorest will have their dignity restored. Fighting will cease, swords beaten into ploughshares and spears turned into pruning hooks. Even lambs and wolves will lie down in peace. This vision is reintroduced in Christ’s words quoted above some 1000 years later, where the liberation of the poor and marginalised is singled out as a key indicator of justice, and a first step towards peace associated with the ‘Lord’s year of favour’. There are differing opinions about whether such theological idealism motivates quietism or activism. Perhaps it relates to both. On the one hand, the difference between reality and such a grand vision may seem too great, motivating a retreat into the fatalist acceptance of the pow- ers to be – in the hope that God, one day, will intervene. Utopian visions can become the opium of the masses. Seeing no real hope, people find religious solace in beautiful dreams. On the other hand, for ‘court theologians’ whose interests are represented by those in the pound seats, the temptation to become defenders of the status quo often results in compro- mised, muted social critique. Since the Constantinian era first saw Christianity become the offi- cial faith of the Roman Empire, every regime has had ‘court theologians’ who, in God’s name, specialise in justifying the unjustifiable. But there have always also been the extremists, who seek change that destroys more than it 1 Lk 4:18-19. builds. The Crusaders left a trail of destruction in the name of social justice. Believing that theirs is the only truth, fundamentalist believers in this mould have, over the ages, resorted to un- precedented violence in the name of justice – and often achieved the opposite. This essay explores some of the conditions under which theological discourse facilitate pos- itive activism. We are interested in a particular type of change – towards a fairer, more inclu- sive society, in fairer, more inclusive ways. The process is vital. We see inclusivity, as it takes shape in the logic and discourses of reconciliation, as a precondition, an enabler, of justice. Justice is forged from consensus and through cooperation. It is by working together that adver- saries create the conditions for growth and prosperity. Without revisiting the protracted debate about the relation between theory and praxis, the assumption is that political praxis and academic theory do, in fact, exert influence on one another. We assume that theoretical reflection influences policies and practises, whether as source of, or as reflection on, praxis. Provided it finds it own voice, therefore, theoretical theology (but not abstract theology!) has a distinctive contribution to make to the quest for multifarious dimensions of justice. To concretise the discussion, I choose to focus specifically on Christian theology within the South African context. South African Christianity has produced liberating theologies, and, as we know only too well, deeply oppressive ones. This history emphasises the importance of ask- ing about the ‘ground rules’ for theological contributions towards social justice – in order to ensure both positive impact on society, as well as truthful witness to its own nature. It remains perplexing that progress towards social and economic justice is not more rapid. In the first section, I analyse this malaise by distinguishing between material and political imped- iments to justice. Political rights are, generally, better institutionalised than economic or social rights. Yet, it is often the lack of political will that impedes the progress of social and econom- ic justice. At the heart of this failure to act, I claim, lies a moral impasse that is central to the theological task.2 Social Justice and Theological Method 57 2 This lack of will to create a better world is highlighted in a crucial report, Human Security Now, presented to the United Nations Secretary-General, Kofi Annan on 1 May 2003 by the Co-Chairs of the Commission on Human Security, Sadako Ogata and Amartya Sen. The Sunday Independent, at the time, called it ‘prob- ably the most important document yet drawn up by an influential group of global citizens concerning the future of humanity’. The findings of the Commission concerning Africa were based on wide-ranging inter- views with citizens in 14 African countries, representing 26% of African nations. The commissioners sought to answer the question: ‘What makes people secure or insecure and what interventions are needed to address people’s concerns in this regard?’ Top of the list, not surprisingly, came poverty and lack of basic services, followed by violent conflict, refugees, poor governance, political instability and human rights abuses. Interestingly however, participants identified leadership, spirituality and morality, dignity and inter-group relations as the key to an African understanding of human security. The extent to which this seminal report identified the way forward in terms of relational matters, rather than material challenges, is telling of the measure to which material and human challenges combine to form the agenda for human development in Africa today. This is an important insight, not only for political analysts, but also for religious scholars and leaders seeking to define the role of faith in the development of Africa. It seems to open an opportunity for faith-based communities in the public arena and removes doubt that subjective aspects of human develop- ment have a role to play in Africa’s renewal process. The Commission on Human Security was established in January 2001 through the initiative of the Government of Japan and in response to the UN Secretary- General’s call at the 2000 Millennium Summit for a world ‘free of want’ and ‘free of fear.’ The Commission consisted of twelve prominent international figures. The full report is available at http://www.humansecuri- ty-chs.org/finalreport/index.html. 5 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E II South Africa and the Growing International Consensus on What Needs to be Done Part of the build-up towards a ‘Scenario 2015’ planning exercise of the United Nations in March 2005, was to identify ‘signs of hope’ for those concerned with the promotion of justice. One prominent such sign was the growing international consensus on developmental priorities for the next ten years. These priorities, known as the United Nations Millennium Development Goals (MDG), represent significant international consensus on global priorities on the road to a more just world. Ratified by heads of State and Governments and adopted by the UN General Assembly in New York on September 8, 2000, the Millennium Declaration states that signatories are ‘deter- mined to establish a just and lasting peace all over the world’. 3 To achieve this, six fundamen- tal values are identified, namely: freedom, equality, solidarity, tolerance, respect for nature and shared responsibility. The further formulation of eight specific Millennium Development Goals, along with an action plan, represents a significant achievement. Never before has there been such wide consensus about how to eradicate poverty.4 South Africa’s development project has taken root in and continues to be shaped by this new international idealism. How do South Africa’s achievements to date compare to the MDG? The feat of uniting warring adversaries in a single body politic that enjoys the support of the majority of South Africans, and that is based on a progressive Constitution, the writing of which was itself an exercise in democratic participation, remains the envy of many. That the transition was further cloaked in the discourses of reconciliation, accountability (albeit limited with amnesty provisions) and justice – representing an impressive framework for post-conflict recon- struction – moved even the most cynical observers to admiration. Add to this the operationali- sation of some of the world’s most expanded service delivery programmes such as housing, pri- mary health care and educational restructuring. On top of this, fiscal discipline and frugal gov- ernment spending have created the conditions for economic growth now perched at somewhere upward of 4% in a climate inspiring growing investor confidence. Is the miracle continuing? Many would seem to think so, and there seems to be plenty of reasons why they may be right. Yet, on the flipside, unlikely names such as Diepsloot and Phomolong have become symbols of growing discontent about the pace of service delivery that, ten years into democracy, is yet to touch the lives of many deeply poor communities. Perceptions, rightly or wrongly, that they 3 http://www.un.org/millennium/declaration/ares552e.htm. 4 To this end, the UN resolved, by 2015, to: 1 Halve the proportion of world’s people whose income is less than one dollar a day, and the proportion of the people who suffer from hunger. 2 Ensure that, by the same date, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling 3 Ensure that girls and boys will have equal access to all levels of education. 4 Have reduced, by the same date, maternal mortality by three quarters, of their current rates. 5 Have reduced, by the same date, under-five child mortality by two-thirds, of their current rates. 6 Have, by then, halted, and begun to reverse, the spread of HIV/Aids, the scourge of malaria and other major diseases that afflict humanity, to provide special assistance to children orphaned by HIV/Aids. 7 Have achieved, by 2020, a significant improvement in the lives of at least 100 million slum dwellers as proposed in the ‘Cities Without Slums’ initiative and by the same date, to halve the proportion of the peo- ple are unable to reach or to afford safe drinking water. 8 Develop an open trading and financial system that is rules-based, predictable and non-discriminatory. This includes a commitment to good governance and addressing the special needs of the least developed countries. For more information, see http://www.un.org/millenniumgoals/. represent the ‘forgotten people’ are reinforced by the apparent infrastructural muscles, power lines, telecommunication grids and roads, bulging around them, but failing to make any direct impact on their lives. The sudden and fabulous wealth of the black elite, coupled with the South African government’s direct involvement in many parts of Africa, creates the impression of a jet-set elite that has relegated the original goals of the RDP, and even more treacherously, the liberation movement, to the back seat. Compounding this scenario of deepening poverty are the twin social scourges of HIV/AIDS and violent anti-social behaviour, including organised and domestic crime. The implosion of South Africa’s neighbour and main regional trading partner, Zimbabwe, to levels of political anarchy and economic meltdown reminiscent of apartheid South Africa, has not helped either. How does one make analytical sense of this complex situation? The Institute for Justice and Reconciliation, recognizing in its mission statement that reconciliation and justice are inter-relat- ed goals, produced a first-of-its-kind report in 2004 to investigate some of these issues. Entitled Taking Power in the Economy – Gains and Directions, this publication forms the first in an annu- al series of Economic Transformation Audits (TA) to hold up the mirror to the nation as a whole and ask: How are we doing in our quest towards a more socially and economically just society? This study was born in an attempt to move beyond simplistic assessments, either uncritical- ly positive, or one-sidedly negative. Four areas are assessed critically in terms of progress since 1994. These are unemployment, poverty, inequality and education. 5 As may be expected, the findings present a mixed scorecard. In terms of unemployment, the TA shows that despite the fact that a million new jobs had been created since 1994, the num- ber of jobseekers have also exploded, mainly as a result of rising rural deprivation and a steep incline in women work seekers. There is an increasing demand for skilled workers, but low- skills job have declined. These conditions have contributed to more poor people in 2001 in South Africa than in 1996. With some spectacular advances amongst those who have benefited from empowerment and fresh business opportunities, this reality has resulted in increasing inequality since 1996. Despite Black Economic Empowerment, the average African income as a percentage of white income fell to 6.99%. These negative findings need, however, to be balanced with massive increases in access to services to the poor. The TA shows that economic growth has been slow but steady, while inflation steadied downward. The TA claims further that the current BEE (Black economic empowerment) strat- egy is not yet an anti-poverty strategy. It is (still) largely a redistributive strategy. The current policy is therefore appropriately shifting towards a more broad-based approach, with empha- sis on skills-development, preferential procurement, employment equity and job-creation. Dubbed the ‘broken link’ by the TA, education has delivered relatively disappointing results towards producing a better-educated workforce with more mathematically skilled members. Schooling is not giving the youths the skills they need to embrace developmental opportunities. With more than 20% of the annual budget allocated to education, better output was envi- sioned. The problems seem to have to do with quality of teaching, availability of textbooks and school management.6 Social Justice and Theological Method 59 5 S Brown and A Fölscher Taking Power in the Economy – Gains and Directions (2004) at xi. 6 A 2005 Nelson Mandela Foundation/HSRC Report, Emerging Voices: A Report on Education in South African Rural Communities, asked 4332 respondents, including many teachers about the most important problems that teachers face. In first place, with 71% support, is lack of teaching aids, and second, at 60%, is lack of cooperation from parents. 6 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E So, is South Africa a more just society than ten years ago? Probably yes. Is there a sufficient concentration of minds on the eradication of poverty to ascertain that South Africa does not slide back into slow decay and anarchy? Probably not. We are not yet displaying the levels of societal consensus and efficiency required to deal with poverty within the timeframe allowed for by the UN referred to above or appropriate to the available political capital. The haunting question remains: given the high stakes, why is there not a broader and deeper sense of urgency to fight inequality, poverty, bad education and unemployment? This lack of urgency is not unique to South Africa; in fact, South Africa is probably more engaged with the fight to end poverty than most, and yet, even here, it seems unlikely that we will have achieved our goals by 2015. Early global assessments on progress towards the Millennium goals have also met with disap- pointment. It is no surprise therefore that implementation strategies are coming under scrutiny. 7 The debate is no longer about what needs to be done. It is now about when and through whom these goals are to be achieved– and how role players will be motivated to contribute. In South Africa, too, everyone seems to be in agreement that the poor should be helped. There is even agree- ment about who should do what and by when. The challenge remains to put into action these plans within an acceptable timeframe. The quest for justice, particularly equity, seems now more than ever, to be about political and moral stamina – and this where the debate becomes complex. III Two Possible Causes of the Malaise: Traumatised Societies and Growing Inequality A fundamental premise to help identify root causes of this malaise is the distinction between socio-economic (material) and more subjective dimensions (political will, human capacity) of justice. I contend that focusing on the former to the exclusion of the latter is a recipe for non- delivery. Socio-economic justice is not simply about the achievement of material challenges, infrastructural backlogs and trading links, vital as these are. Amartya Sen reminds us that devel- opment is about more than material reconstruction and development.8 It is about the restora- tion of human dignity and freedom, about fostering the capacity to choose lives that we value. Development, properly understood, is about more than creating economic opportunity. It is about creating the opportunities to become economically active. The multi-dimensional process of human development lies at the heart of the quest for jus- tice. In biblical terms there can be no justice without genuine peace, and peace starts with change in the hearts and minds of people. Development harbours profound political, social and psychological challenges for developing as well as developed countries. Yet, these dimensions are often overlooked. 7 On January 17th 2005 the most comprehensive action-plan yet to achieve the Millennium Goals was pub- lished. A blue-ribbon team of 265 of the world’s leading development experts drew up a package of scores of specific cost-effective measures that together could achieve the Millennium Goals. The prelude to this action plan states: ‘We have the opportunity in the coming decade to cut world poverty by half. Billions more people could enjoy the fruits of the global economy. Tens of millions of lives can be saved. The prac- tical solutions exist. The political framework is established. And for the first time, the cost is utterly afford- able. Whatever one’s motivation for attacking the crisis of extreme poverty—human rights, religious values, security, fiscal prudence, ideology—the solutions are the same. All that is needed is action. ‘The experts who contributed to this huge undertaking has shown without a doubt that we can still meet the Goals - if we start putting this plan into action right now’ said Prof JD Sachs, who leads the project. 8 A Sen Development as Freedom (1999). Thus, the failure to take into account the human factor in human development may be the cause for many retarded delivery processes. The importance of the human factor begs a num- ber of questions of all parties involved; the disempowered, the freshly empowered as well as the empowering: ● Developing countries struggle to find ways to empower people to embrace opportunities. Justice seems to require integrated restoration and healing processes where people explore ways to overcome bad memories, internalised forms of dehumanised identity and stereotyped divisions associated with intense suffering, oppression or violation. But these strategies seem thin on the ground. ● Developed countries, on the other hand, need to find ways to generate moral, political and economic solidarity that supersedes citizenship. There is an urgent need for a fairer and more accountable international trading and governance system where richer nations take steps to ensure greater power sharing and a more equitable international order. What is needed is a deeper sense of solidarity between the rich and the poor. Too much involvement by the rich in the affairs of the poor still bears the hallmark of patronising charity born of a lack of in- depth exposure, understanding and solidarity. Frightening and growing inequality may ex- plain deepening incomprehension and solidarity, despite a veritable explosion in news cov- erage and other global forms of information flows. These challenges exceed the normal ambit of political and economic activity. It requires ‘the extra mile’. Their unusual, ‘out-of-the-box’ character causes these challenges often to be ignored, but, left unattended, they have the potential to undermine the quest for justice. Justice includes the overcoming of the trauma associated with extreme poverty, oppression and violence at both personal and public levels. For anyone who doubts the intensity of per- sonal trauma caused by poverty, consider the following anecdote, recorded in an interview of the Institute for Justice and Reconciliation: My mother would come home to the six of us with one plate of food from the Madam. We would stand around her and hold out our hands. She would then divide the plate into six portions and place the pieces of food, bit by bit, into our open hands. Other nights, when there was nothing, she would keep up our spirits by boil- ing water with a brick or stone in the pot. Occasionally she would “test” the stone in the pot with a fork to inform us that the potatoes were not soft yet. At least we fell asleep with the hope that food would be on the table soon. This trauma is often exacerbated by political oppression and violence, gross inequality and social isolation all phenomena commonly associated with the poorest of the poor communities in developing countries. The subjective dimension to development goes beyond the psychological. Trauma works itself into the fibre of the social and political institutions of a society. Thus justice becomes a question of social transformation. It is not just about the healing of individuals. It is about social reconstruction and impacting the ethos of collectives. The systemic, structural dimensions of injustice remain embedded in the fibre of developing countries. To this end, turning decrepit and biased institutions into inclusive, transparent and democratic ones is one of the main chal- lenges of development efforts the world over. Institutionalised power-relations originating from an unjust past naturally resist such moves towards equity. Integration of former enemies at all Social Justice and Theological Method 61 6 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E levels of society becomes a central task. The question becomes: how does one facilitate condi- tions where former enemies may develop into business partners or opposition politicians with- in a democratic framework? A reconciliatory ethos envisions cycles of deepening engagement across divisions. A lack of this ‘reconciliatory ethos’ contributes, I contend, to unsustainable development. It explains the perplexing lack of enthusiasm, despite declarations to the opposite, of potential beneficiaries of development, as well as of potential drivers and donours. Justice requires solidarity and inclu- sive processes adhering to the logic of reconciliation, where the dignity of people is recognised and restored. We have a goal – we even have a plan. Yet we seem to lack the will to travel this road. The flesh is strong, but the spirit, seemingly, remains weak. Can theology help to motivate people towards the extra-ordinary efforts it will take to conquer human deprivation? IV Theological Possibilities In his Theology of Reconstruction, Charles Villa-Vicencio reminds us that responsible theology has to be utopian. Priests are obliged to be turbulent and annoyingly visionary in even the most socially responsible societies. And yet the church must also be realistically committed to what is attainable here and now as part of a greater vision.9 Utopian ideals, whatever the source, continue to have a role to play in the fight for justice. For one, they are able to rule out complacency and fatalism, and continue to spur social change. At the same time, utopian zeal can be dangerous. Emil Brunner writes that: ‘Christians cannot “sanctify” the world, that is, humanity, in such a manner as they sanctify themselves’.10 In what follows I unpack four traits, describing basic features of a theology for human devel- opment that may serve to help overcome some of the psychological, political and moral obsta- cles that lie at the root of the malaise of realising integrated justice for all. The four traits each have a thematic texture: each have a content that is derived from a par- ticular understanding of what is central to Christian theology. Each trait also has contextual rel- evance with the potential, so I contend, to have real impact on the social, political and moral landscapes we inhabit. The allocated space does not permit an extended application of these theological traits to the quest for justice. Moreover, the author is no development specialist. Yet, guidelines are pre- sented and preliminary observations made about how a theology shaped by particular concep- tions of grace, truth, hope and justice may serve the cause of socio-economic justice in the twen- ty-first century. Remarkably, it is now possible to envision the implementation of the UN’s MDG’s. In South Africa’s case at least, this task requires an enormous, concerted and unremitting effort. How can this be sustained? The temptation to rest on the laurels of South Africa’s considerable achievements grows only stronger with time. Stamina – political, moral and social – is required if the fight against poverty is be overcome. When operating, in the precarious space between fatalism and idealism, theology can foster responsible and creative contributions to the promo- tion of justice. 9 C Villa-Vicencio A Theology of Reconstruction – Nationbuilding and Human Rights (1992) at 31. 10 E Brunner Dogmatics (1950) at 315. (A) GRACE To be a voice for justice, theology needs to recognise itself as teleological. This is no convenient innovation. Theology is, in fact, teleological – always pulling towards a goal – always beyond itself. Theology is not content to refer to truth. It seeks to realise this truth. It does not rest until the goal is achieved. It longs and works for ideals it realises cannot be achieved immediately. Importantly, this dynamism does not depend on observers or admirers of theological truth. Theologians cannot sustain this restlessness. It is the object of theological enquiry itself that pulls, pushes and cajoles. Encountering the object of theology is transformative. But how is this restlessness to be understood? What is it that theology pushes towards? What/who is doing the pulling? Karl Barth, the Swiss theologian whose writings profoundly influ- enced 20th century theology, and who wrote in the time of deep social change in Europe between the first and second World Wars, claims that theology’s central focus is to be found in grace. Writing in 1918, as the hazy religio-cultural chauvinism that dominated Europe up to then began to dissolve, Barth seeks a uniquely Christian truth – something to distinguish itself from the folly of Euro- pean self-aggrandisation, and from forms of liberal theology absorbed into the culture of the time. Barth’s starting point is that humans have no capacity to enter into a relationship with God.11 Any link with the Divine has to be given to us from beyond ourselves. Once established, a relationship with the Divine cannot be ‘owned’. Theological truth never belongs to theolo- gians – it remains a free, unexpected gift whereever it occurs. Although grace falls beyond human capacity, it does not override or diminish humanity. In fact, it draws humans beyond themselves into communion with God and fellow human beings.12 God’s grace is the condition for human fulfilment, not the negation thereof. Human fulfilment, viewed theologically, lies beyond what is possible for human beings to attain or to become. Precisely because theology draws us towards this fulfilment, it remains restless. When theology relinquishes this restlessness, its distinctive contribution is lost. This happens when grace is no longer the focus. Theology becomes a ‘moralistic affair’, ‘indif- ferent to the question of man itself’, the question of human suffering and misery.13 Fully institu- tionalised, it becomes the voice of the well endowed and powerful. Therefore grace – as embodied in Jesus Christ – favours the poor and marginalised almost to the point of prejudice.14 The essence of the restlessness of true theology is found in its passion for the excluded, poor and marginalised. This also means that reconciliation – humanising engagement over divides – occupies a cen- tral place in Barth’s thought. God crosses, in freedom, the divide with the human race and establishes a new humanity. God shows solidarity with human beings in their hopelessness, cre- ating a new humanity through reconciliation. The restoration of justice coincides with the restoration of reconciled community, of restored fellowship. ‘Why Jesus’s existence was so unsettling on every side was that He set all programmes and principles in question’, writes Barth. To this end, ‘he enjoyed and displayed a remarkable free- dom…He simply revealed the limit and frontier of all these things – the freedom of the Kingdom of God. He existed in freedom and summoned others to it.’15 Social Justice and Theological Method 63 11 K Barth Church Dogmatics (1960) at 238. 12 G Hunsinger How to Read Karl Barth – The Shape of His Theology (1991) at 31f. 13 See DJ Smit ‘Paradigms of Radical Grace’ in C Villa-Vicencio (eds) On Reading Karl Barth in South Africa (1988) at 33. 14 Smit ‘Paradigms’ (note 13 above) at 23. 15 Smit ‘Paradigms’ (note 13 above) at 24. These quotations are from Barth (note 11 above) at IV/2. 6 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Theology needs to be vigilant. When it is no longer determined by grace and becomes a self- reliant system of thought, it loses the dynamism that is the hallmark of divine grace. Public the- ology, aiming to promote socio-political justice, needs to orientate itself continuously towards this gift of grace. Above all, a theology steeped in grace realises its own needs and imperfec- tions, opening the door to deeper solidarity with those whose needs are perhaps emphasized by socio-economic deprivation and injustice. (B) TRUTH Yet grace can be cheap. When all is forgiven and accepted, when accountability dies in the cheap embrace of amnesia, the violation of human dignity becomes permanent. A justice built on forgetting injustice is not only unlikely to survive, it is fundamentally flawed. The restora- tion of human dignity, after periods of gross injustice, requires a search for truth and for acknowledgement, however hesitantly, however relative, however perspectival. A theology of human development has to compliment its focus on grace with a focus on truth. Truth represents more than a focus on neglected facts about degrees of poverty, suffering or violation. It is about creating the space for the oppressed to speak out for themselves, and for them to become conversation partners in the formation of the strategies to establish justice. The Truth and Reconciliation Commission understood its mandate to be the mediation of forgotten voices. To some extent (and with many shortcomings) it did succeed to bring these voices into the mainstream. Ten years later, there is again a need for South Africans to listen carefully. In our current political climate the voices of the poor and marginalised need amplification. But this requires mediation. These truths are not easily heard or understood. Communication between the disempowered and the rich and the poor cannot be taken for granted, for it has to cross the chasm of inequality that runs through the heart of the South African society, render- ing it one of the most unequal in the world. Theology may provide such mediation precisely because its truth-claims are inherently accommodating and inclusive. Theology’s ‘modest truth’ is a result of the nature of the way that God reveals Himself to the world, at once hiding as much as it reveals. God’s truth may be pres- ent in our world, but it is a subtle, ‘hidden’ presence, as Barth explains: The veil is thick. We do not possess the Word of God otherwise than in the mystery of its world-involvement. …Its form is not a suitable but an unsuitable medium for God’s presentation of Himself. It does not unveil, but rather veils it.16 The moment theological truth is captured, it dies. God’s truth breaks into human discourse, in a miraculous way, that is, through none of our doing, despite the fact that language ‘seen from our side’ has no capacity to produce the kind of truth-claims that would encapsulate the Divine, says Barth. God’s revelation remains God’s mystery.17 Thomas F Torrance writes about this concept of truth: Behind all this questioning on Barth’s part lies a deep humility before the face of Truth: in his recognition that the Truth will not and cannot be mastered by our dis- 16 Barth (note 11 above) at 188. 17 SF du Toit Ideas of Truth and Revelation in the Light of the Challenge of Postmodernism (University of Oxford: DPhil Thesis, 1995) 157. tinctions and formulations, that we cannot give shape or form to the Truth, but that we can only follow after it, and in his recognition that all our expressions and expo- sitions of the Truth are human attempts that fall far short of the Truth itself, so that far from resting content with what we have already done, we are driven on by respect for the Truth…18 Theological truth’s inherent modesty enables it to venture into public space, often in secular guise, to facilitate the truths of those who are not often heard. Political discourse falls back into the relativisation of non-derogable human rights most easily, when voices from the margins of society are not appropriately accommodated within public dialogue. South Africa has a remark- able record of failure as well as achievement in this area. To dwell on the positive: we know that over two million submissions were received during the writing of the 1995 Constitution, making this one of the most inclusive such processes ever. The Truth and Reconciliation Commission saturated middle class living rooms for two years with tales of sorrow and loss from the very margins of society, in a manner unprecedented internationally and making it impossible for any South African to claim with any credibility that he or she does not know that terrible things happened to others in the past. But how much do we really know about poverty today? How prevalent are the voices from the margins of society today? Everybody claims to speak on behalf of the poor, but who really does? How aware are we about the true extent of trauma associated with poverty; trauma that at times matches the trauma associated with gross human rights violations such as murder, rape, abduction and torture? Poverty, indeed, is daily torture. It is the murdering of dreams and personalities. It is the abduction from society, of millions of talented people. It is the rape of a nation. Can theology help to generate a national sense of urgency around poverty as did emerge around political change? Theological discourse needs to reflect teleological restlessness and pastoral solidarity, out- spoken urgency and self-effacing modesty. Is this not a contradiction? How are these seeming- ly conflicting traits to be reconciled? Can theology at once be forceful and self-effacing? To this end, it may be helpful to examine the nature of Christian truth-claims more closely, in order to understand how a nuanced reading of scripture can in fact yield truth-claims that are forceful, yet modest. Theology drinks from different fountains: scriptures, traditions of interpretation and praxis, contextual demands and dialogue with other faiths. Amongst these sources, theologians tend to prioritise scripture. Scripture is often held as the norm according to which other theological norms and sources are judged. Scripture, however, presents anything but simple, hegemonic norms. Containing a library of sixty-six books, produced over a period of more than 2000 years in many different parts of world, and recorded in an array of languages, it covers a historical epoch stretching back into the very origins of human memory. A litany of characters, narratives, perspectives, positions and ethical frameworks confronts the systematic reader of the Biblical canon. Yet, despite this indelible diversity, scriptures offer a number of longitudinal themes and per- spectives that cut across books and epochs. The identification of these synthetic concentrations of ideas is central to the task of systematic theology. Theology has, to this end, embraced the ‘scopic nature’ of scriptural hermeneutics. The sco- Social Justice and Theological Method 65 18 TF Torrance Karl Bath: An Introduction to his Early Theology, 1910-1931 (1960). 6 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E pus is a longitudinal theme or perspective singled out as the heart of the message and intention of all sixty-six books and serves to provide the singular hermeneutical frame within which the entire collection of scriptures needs to be interpreted and understood. A Christ-centric scopus, for example, focuses on the person and words of Jesus Christ as the prism through which all scriptures are understood. This is not an arbitrary hermeneutical strategy, but is rooted, so theologians believe, in the world presupposed by scripture itself. The Judeo-Christian world, in which the Bible has its roots, operates with a fluctuating, dynamic view of history. It is into this ever-changing arenas that Hebrew sees divine truth seeping, little by little, and with sensitivity to the fragile concep- tual frameworks that constitute human understanding. This hermeneutical strategy is shared by Christian theologies of many different persuasions, including some of the most dominant tra- ditions in South Africa. It differs from a fundamentalist approach where the very idea of a scopus is rejected. Seeing nuanced hermeneutical readings as undue human interference with the Divine Word, funda- mentalist theology claims to take each word, each passage and each narrative of the Bible as the literal, unchanging and eternal word of God. Yet there is an evident irony in the way this reading of scriptures plays itself out. Funda- mentalists achieve exactly what they seek to avoid. Their effort to ‘purify’ theology of human perspective in fact serves to obscure and entrench the pivotal role of subjectivity in the reading of scripture. Because it equates divine truth with the immediate, subjective encounter of read- ing the Bible (of whatever truth emerges there and then) the context within which the reading takes place becomes all-important. And yet, from a fundamentalist perspective, this impact of context is not only ignored, but vehemently denied. As a result, the dominant voices in a par- ticular context become the voice of God. The result: fundamentalist truth-claims render theol- ogy more relative, not less. The Truth With Which There Can Be No Argument, is a truth that emanates from intensely private, deeply parochial positions of leaders powerful within their own groups of followers, but usually situated on the fringe of society. The ideological opposite to fundamentalism is radical relativism,19 where theology relinquish- es any pretence to truth that is not in every respect cultural and contextual. Scripture as a whole loses priority and competes, on equal footing, with all other sources. In this approach there is a real danger that theology will lose its distinctive voice and become just another weak mirage – a second-hand version – of other disciplines such as sociology, anthropology or poetry. Ironically the same danger of arbitrariness confronts the relativist theologian and his funda- mentalist counterpart. To relativists, any hint of ‘truth’, any trace of the universal or transcen- dent, is denied. Yet, in the place of the Divine, human subjectivity assumes the central position. When opinion, speculation and perspective are acknowledged as the only social currency, power once again takes the place of argumentation. Dialogue always presupposes moving towards some form of ‘truth’ – inter-subjective and provisional as it may be. But when this pos- sibility falls away completely, dialogue collapses into rhetoric of the most cynical kind. Even Foucault reminds us never to give up our quest for truth. In the Nietzschean context of radical relativism, whoever possesses the largest megaphone (or gun) normally wins the argument. The advantages of a more sophisticated, scopus-defined hermeneutics now become clearer: 19 See for example TJJ Altizer The Genesis of God – A Theological Genealogy (1993); MCE Taylor Erring: A Postmodern A/theology (1984); D Cupitt The Long-legged Fly (1987); D Griffen Primordial Truth and Postmodern Theology (1989). See also G Ward (ed) The Postmodern God: A Theological Reader (1998). Admitting to the perspectival nature of all theological truth, makes for more transparent and honest dialogue where presuppositions can be voiced and influenced. Admitting to perspectival readings of theological sources opens the door for contesting inter- pretations, and limits the possibility for hegemony and tyranny in the name of God’s truth. Scopus-hermeneutics also helps to negotiate the vast historical and contextual differences and even paradoxes found between different scriptural passages. It allows for progression of truth and insight and can therefore identify certain prescriptions as time-bound and culture-rel- ative whilst others can consistently be identified as culture-relativising. Scopus-hermeneutics counters radical relativism and proclaims, in an era of rampant nihilist consumerism, the elusive presence of transcendent truth. Scopus-hermeneutics thus creates the conditions for genuine inter-subjectivity – the proper breeding ground for theological truth. This is a position between the tyranny of absolute, objec- tive truth with which there can be no argument, and the different tyranny of radical subjective relativism; a space where the possibility of argumentation falls away. ‘Knowing-in-part’ is the forte of good theology. The science that finds its orientation in the face of God can only see its truth as ‘a poor reflection as in a mirror’. If theology knows any- thing, it is that truth finally lies beyond us. It is not a carrier of truth, but a pointer, self-effac- ing, to divine words that can never be repeated, to divine presence that remains hidden and to a divine community that remains scattered. It is therefore, in its best moments, a troublemaker in the company of those ‘who know’: pos- ing questions, unravelling arguments and exposing those voices of the marginalised and maligned not often heard. This is what it is called to do. When things go wrong, and theology tries, like a slightly awkward child, to ‘fit in with the rest’, to develop certain knowledge and pose proudly in the conceptual designer wear of its age, it invariably comes to grief. Like the awkward child, when it struggles to assert itself, it usually does so with too much force. Theology is a tricky business. (C) HOPE Up to now human development and the quest for justice have been used virtually interchange- ably, as if the one implies the other. Of course, this is not always the case. Not all development is just. Development is mostly inherently ambiguous and its impact on humanity has positive as well as negative effects. Social development is an unstoppable reality, that proceeds with or without moral input. Economic development is also a self-propelling phenomenon, operating with or without moral guidance. Justice calls for a certain kind of development, associated to some extent with integrated visions of development presented by Amartya Sen and others mentioned above. This human- focused development, aiming to restore human dignity, is in my view central to the Biblical call of justice. There is considerable difference of opinion about how successful such development efforts can be expected to be in the long term. Some claim that South Africa will remain, certainly for the foreseeable future, fundamentally unequal. Others predict a speedy eradication of poverty, with social services up and running within the decade; coinciding with a proliferation of employment, improved education and growing industrial output. Who should be believed – the pessimists or the optimists? Theologies that believe the pessimists offer options for utopian withdrawal with strong dosages of what Karl Marx would call ‘opium for the masses’; feel-good, emotionally soothing Social Justice and Theological Method 67 6 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E fellowship where people gather to anticipate reward in the after-life. In this life justice will always be but a dream. Theologies that believe the optimists tend to align with activist groups in society who often are radically critical of mainstream society and post-apartheid policy decisions, but who are often short on engaged, constructive proposals for change. What does theology base its hope on? A negative historical prognosis typically coincides with an emphasis on human depravation and sin. A positive prognosis typically emerges from an emphasis on the inherent goodness of people, on some concept of the image of God that all people carry. Importantly, what one expects from human development, what we dare hope, is largely based on these anthropological foundations. Anthropology is therefore worthy of special focus. Formulating a Christian anthropology has been the aim of countless volumes of theology, but it remains a highly complex task – not least in the context of a transitional society emerging from oppression and violence. Social change of this magnitude and depth typically gives rise to deeply complex anthropological phenomena.20 Classic theological debates, ranging on the spectrum outlined above, traditionally paid a lot of attention to the epistemological foundations of anthropology. This has often resulted in the ques- tioning of the relationship between divine revelation, theology and anthropology. Can God be known in and through the human spirit, or can the human spirit only be known in the light of Di- vine Self-revelation? The former position, a classic tenet of liberal theology, was described by Lud- wig Feuerbach as nothing else than a projection of the human self against the screen of eternity: Religion, at least the Christian, is the relation of man to himself, or more correctly to his own nature… The divine being is nothing else than the human being, or rather, the human nature purified, freed from the limits of the individual man made objective… All attributes of the divine nature are, therefore, attributes of the human nature. 21 For Feuerbach, theology is anthropology. Such reductionism invited sharp reactions, not least from Karl Barth and his Neo-Orthodox colleagues early in the 20th century. They insisted that theological anthropology could never exist as an independent subject. Humans could never know themselves without prior knowledge of the Divine. In fact, without the Divine, the human being is not even an object of knowledge. To them, anthropology is an extension of theological descriptions of divine revelation. The resolution of this debate lies outside the scope of this essay. Whilst acknowledging the different positions, the key question for us is whether this and other theological debates pro- vide us with substantive anthropological insights, however derived, that could help guide and stimulate responsible efforts towards social justice. Perhaps it will suffice to say that following Barth in his epistemological agnosticism (we can 20 Victims of human rights violations frequently do not have the emotional strength to face deep change or ambitious development programmes. Formerly disadvantaged citizens often suffer from a lack of confidence and skills. Beneficiaries of past injustice often feel a sense of moral condemnation and mourn a loss of priv- ilege or power. They either feel unable to contribute to the new order or take refuge in a secluded, priva- tised environment – not infrequently sponsored by theologies of a different nature. Some ex-combatants fail to be integrated into society long after the battles are over. They often become dependent on the welfare, or resort to violence and crime. Perpetrators of gross human rights atrocities may seek to subvert the new order, to avoid prosecution or consider ways to pursue violence through other means. They may also sim- ply withdraw. 21 L Feuerbach The Essence of Christianity (1989, first published in 1841) at 14. never fully know Divine truth) does not necessarily imply that we follow him in his extreme anthropological assumptions, where the very possibility of a contact point in the human spirit with the Divine is vehemently denied. It is possible, I contend, to hold onto Barth’s epistemological modesty but at the same time develop some form of positive anthropology, perhaps shaped by the concept of the universal image of God. Created in God’s image, people all carry the ability to and propensity for rela- tionships. When God’s word goes out into the universe, it finds a response in kind only at one point: the human spirit. Created to be able to respond to the words from God, and thus to enter into a relationship with the Divine, human beings carry an inherent, indestructible ability to relate. Even the most inhumane individuals never lose this capacity. They may deny it, abuse it, or even actively seek to subvert it, but they cannot destroy it. This positive assertion about human nature is a centre piece of many forms of Christian theology and remains the starting point of many prominent and sophisticated theories of human nature. I use the word ‘sophisti- cated’, precisely because it creates a nuanced view of human nature as neither totally depraved, nor innately good. The ability to relate forms the basis of firm hope for progress, but since this capacity can clearly be abused, it is no automatic guarantee of progress or justice. However, because it is an indestructible reality it cannot be ignored either. It continues to prompt and nudge human society towards the building of relations across boundaries. This implies that all people, in the developed and the developing worlds alike, share a basic propen- sity for entering into relationships with others because they all share in the image of God. (At the same time, of course, the dark side, the self-isolating apartheid-side of human nature pulls and pushes in the opposite direction.) The mere possibility of progress, structurally and universally given as a constituent part of human nature, is cause for hope, albeit nuanced hope. No progress is assured. No outcome is guaranteed, but the possibility to progress towards a more just world is a structural anthropo- logical reality. So, what may South Africans hope for? We may hope for more progress, deeper solidarity and more overt social justice. History is open with these and other possibilities. We may also, with good cause, fear failure. The rational response would be to put as much effort as possible into the creation of a more humane, more dignified society, knowing that this corresponds to ancient and modern conceptions of what humans are all about. The outcome is not yet deter- mined, but there are grounds for hope and enough reason to commit ourselves fully to the proj- ect of justice for all. (D) JUSTICE Human rights discourses are often suspected of Western bias, a kind of latter day colonialism based on European (or Enlightenment) chauvinism. It is becoming clearer that, human rights discourses, to have genuine universal appeal and legitimacy, need to demonstrate, not least in contexts of deep suffering, some understanding of concrete conditions and contextual realities. In more practical terms, the abstract individualism at the root of rights discourses needs to be complemented with insights derived from collective identities, shaped by historical, cultural and religious practises and beliefs. The postulation of universal equality, certainly in the founding fathers of theories of natural rights, such as Locke and Hobbes, was built on the identification of similarities in people the world over. This led to the gradual devaluation of contextual differences, a reality that is now gaining prominence again. Social Justice and Theological Method 69 7 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E So-called ‘thin universals’, the idea that human rights can be formulated as general ‘one-lin- ers’ encapsulating on a human right true of all place and all people, feed (necessarily so) off strongly reduced, abstracted meanings. Indispensable as these formulations have become, they fail to do justice to the social dynamics of different contexts the world over. One example may be taken from the Hebrew Scriptures, where individual responsibility is conceived as fundamentally social in nature. In this context, social rights are not some nice afterthought, but indeed the precondition for the achievement of even the most basic individ- ual rights. ‘Thicker’ versions of human rights have a better chance of achieving lasting appeal in differ- ent contexts, than simplistically abstracted and applied individual rights, but one has to be care- ful not to compromise the essential message of freedom, equality and security for all. Maurice Cranston contends that the expansion of the term ‘human right’ to incorporate social consid- erations all but renders the term meaningless. Cranston describes a human right as a ‘form of moral right’ attributable to ‘all people at all times in all situations’.22 ‘A right differs from an ideal, in that it represents something that can, and from a moral point of view must, be respect- ed here and now’, says Cranston. ‘A rights claim is a powerful demand for action’, adds Donnely.23 A right is only a right if it has as collorative a duty. That is, a right that does not imply a duty to respond to the claim cannot be called a right. In short, human rights are not a wish-list thought out in splendid isolation, but a limited, sharply focused set of universally enforcable claim-rights. This position offers important insights not to be lost in our haste to accommodate contex- tual realities. Human rights would have lost its essence if watered down, or ‘contextualised’ to the point where they would condone repressive social hierarchies or regimes that demand absolute submission. At the same time rights discourses need to learn to speak to people in their particular settings, as whole, integrated individuals with more than legal, civic or political needs, but with equally pressing economic, social and environmental needs. Moreover, they operate in systems of thought and meaning that may substantially enrich human rights con- ceptions of equality and freedom. One such system of thought, itself deeply diverse the world over, is Christian theology. Christianity holds the incarnation of truth not only dear, but as the sacred way that God revealed His Universal Truth to the human race – through incarnation into the concrete living conditions of Palestine 2000 years ago. At the same time the transcendent message was not lost, but in fact emphasised. From here it is but a small conceptual step to recognise the fundamental importance that the Bible places on justice for the whole human being, in all her dimensions and in her concrete context. Theology is a potential source of the grammar and contents of thicker versions of jus- tice that transcends the narrow (but important) categories of Enlightenment thought. This makes theology and law ideal dialogue partners. Charles Villa-Vicencio argues that law provides a sense of order, integrity and purpose to society. Theology, on the other hand, pro- vides an incentive to transform law, as John Witte says ‘the telos, it needs to move forward.’ Without religion law decays into empty formalism. Without law, religion decays into shallow spiritualism. Part of the crisis of our law today is that it has become formalistic, undirected, lacking vision. It lost its religious dimension. Part of the crises has of our religion is that it has 22 M Cranston, ‘Human Rights, Real and Supposed’ in DD Raphael (ed) Political Theory and the Rights of Man (1967) at 51-53. 23 J Donnely Universal Human Rights in Theory and Practice (1989) at 10f. become spiritualistic, disorganised, diluted, lacking in discipline. It has lost its legal dimen- sion.’ 24 To stimulate a sense of urgency and a collective understanding of what justice in its fullest sense would mean is the task of theology. Making sure we do it orderly and fairly is the task of law. V Conclusion The essay aims to illustrate that truthful theology cannot ignore its public responsibility. Its rest- less reaching out to people, most notably the poor and marginalised, its modest truth-claims, its nuanced but firm hope, and its irrepressible quest for justice in all its dimensions propels theological discourse into the public sphere time and time again. Theology cannot avoid going public, but needs to do so responsibly. The road to justice has never been clearer. At the same time much remains to be done. Theology can provide motivation, fuel and stamina for the journey to justice by providing vision, urgency and purpose to development initiatives. For this to happen, theology would have to develop the analytical capacity to understand the current social and economic challenges and to move beyond mere sloganism and rhetoric towards concrete, constructive proposals that engage both the Christian message and the his- torical realities in South Africa. This is at once a journey out of the laager of theological discourse but also, and I sought to emphasise this here, a journey back into the heart of what constitutes proper Christian theolo- gy. My view is that such a journey yields at least four insights that could act as guidelines on the way towards a more just, inclusive South Africa: The quest for justice for those who are excluded constitutes the essence of the restlessness which characterises theology that remains true to its Source – the grace of God. God’s truth remains present in our world, but in a subtle, ‘hidden’ way, mediating the voic- es of the poor and marginalized. The image of God in people forms the basis of social hope. This possibility of progress is cause for hope. Yet it remains a nuanced hope. No progress is assured. Theology’s concern with justice in all its dimensions prompts it to continue to engage other disciplines such as law, equally indispensable to the cause. It provides a constant reminder of the importance of incarnating universal human rights dicta into the concrete living conditions of the poor, the disenfranchised and the voiceless. Social Justice and Theological Method 71 24 J Witte ‘The Study of Law and Religion: An Apologia and Agenda’ (1988) Fall Ministry and Mission at 14:4. A Not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present* W I L L I A M E F O R B AT H Lloyd M Bentsen Chair in Law, Professor of History, University of Texas at Austin I Introduction (A) THE CONSTITUTION IN THE YEAR 2020 Periods of no power, Charles Black once wrote, are periods for ‘reformation of thought,’1 for thinking anew and ‘thinking large’ about visions, goals, and strategies. In constitutional law, as elsewhere, liberals and progressives are out of power. We are on the defensive and are pressed to think small: criticizing countless decisions; defending doctrines and precepts under attack; advancing modest proposals, each apparently a tub on its own bottom, guided by no larger con- stitutional vision. We cannot afford to overlook the need to think large, about the constitutional bases on which we — or our students — will build anew, when the opportunity comes. We must take a leaf from our adversaries. In the late 1970s and early 1980s, when their ideas were wildly out of tune with judicial doctrine and mainstream political and academic opinion, right-wing constitutional thinkers set about crafting an alternate account of our constitutional past, an alternate vision of our future, and a cogent set of ideas about the way constitutional law should unfold in every key area of their concerns. In the late 1980s, right-wing constitu- tional lawyers in the Reagan Justice Department produced a remarkable 185-page document entitled The Constitution in the Year 2000;2 and the rest, as they say, is history.3 And while history does not repeat itself, it rhymes. So, we need to begin writing The Constitution in the Year 2020. One important chapter in that book will address the problems of poverty and economic inequality. Today’s Supreme Court tells us that the Constitution affords no protection against desperate want, nor does it confer on Americans any other ‘affir- * Portions of this article draw substantially from WE Forbath ‘‘Constitutional Welfare Rights’: A History, Critique and Reconstruction’ (2001) 69 Fordham LR 1821. This article first appeared as William Forbath ‘A not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present‘ (2004) 39 Tulsa Law Review 597-638 and is reprinted here with the kind permission of W Forbath and Tulsa Law Review. 1 CL Black ‘Further Reflections on the Constitutional Justice of Livelihood’ (1986) 86 Col LR 1103 at 1115. 2 Official Legislative Policy Report to the Attorney General: The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation (US Dept of Justice 1988) (available at <http://www.americancon- stitutionsociety.org/pdf/year2000.pdf>). 3 See DE Johnsen ‘Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change’ (2003) 78 Ind LJ 363 (discussing the history and impact of the report). mative rights’ to such basic goods as minimally adequate education or a realistic opportunity to make a livelihood.4 These ‘social rights’ are features of most of the world’s constitutions;5 and many prominent constitutional courts have been elaborating and (some boldly, some gin- gerly) enforcing them, some with explicit textual bases, some without.6 Today’s conservatives would have us think that social rights and the solicitude for them among the world’s great courts are foreign to American constitutional experience. That is wrong.7 What is true, though, is that the current Court’s hostility partly reflects the broader disillusionment with the New Deal and the welfare state, as these are understood in the US polity today. A key aspect of the liberal/progressive project today lies in reinvigorating the old convictions that all Americans are entitled to a modest share in the nation’s wealth, to protection against desperate want, and to the opportunity to make a decent livelihood. There is substantial disagreement and uncertain- ty about what kinds of reforms or even what programmatic vision is best suited to carrying for- ward these commitments in the early twenty-first century; but they remain a defining feature of the nation we believe the Constitution promises to promote and redeem. Frank Michelman on Social Rights 73 4 See DeShaney v Winnebago County Dept of Soc Services 489 US 189 196 (1989). 5 See G Casper ‘Changing Concepts of Constitutionalism: 18th to 20th Century’ (1989) S Ct Rev 311 at 318- 21; M Glendon ‘Rights in Twentieth-Century Constitutions’ (1992) 59 U Chi LR 519 at 523-24 (noting the anomalous nature of the United States Constitution for its lack of affirmative welfare obligations, as com- pared to the constitutions of other liberal democracies); A Ben-Bassat & M Dahan ‘Social Rights in the Constitution and in Practice’ (Hebrew U of Jerusalem School of Public Policy Working Paper No 05-03 May 2003) (available at <http://papers.ssrfncom/sol3/papers.cfm?abstract_id=407260>) (examining the constitutional commitment to social rights in sixty-eight countries). 6 For recent comparative accounts of judicial enforcement of constitutional social rights, see M Tushnet ‘Strong Rights, Weak Courts’ (2004) 82 Tex LR 1895; M Tushnet ‘State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations’ (2002) 3 Chi J Intl L 435; KL Scheppele ‘A Realpolitik Theory of Social Rights’ (2004) 82 Tex LR 1921. For the reflections of an architect of the South African Constitution’s social rights provisions, now a justice of that nation’s Constitutional Court, see Justice A Sachs ‘Enforcement of Social and Economic Rights’ (Speech at London School Econ Feb 27 2003) (available at <http://www.lse.ac.uk/Depts/human-rights/Documents/Enforcement_Social_Economic_Rights.doc>); see also the rich collection of research papers in Community Law Center, Realizing Socio-Economic Rights in South Africa: Progress and Challenges <http://www.communitylawcentre.org.za/ser/conferences.php> (accessed Apr 24 2004). 7 In the 1960s and early 1970s, the Supreme Court came extremely close to recognizing such rights in a series of statutory and constitutional cases which produced remedial schemes comparable to several under con- struction abroad. The Supreme Court’s personnel and the nation’s political climate changed before a jurisprudence of social citizenship took root. See WE Forbath ‘Lincoln, the Declaration, and the ‘Grisly, Undying Corpse of States’ Rights’: History, Memory, and Imagination in the Constitution of a Southern Liberal’ (2004) Geo LJ 709; WE Forbath ‘‘Constitutional Welfare Rights’: A History, Critique and Reconstruction’ (2001) 69 Fordham LR 1821 at 1823; infra text accompanying notes 28-61. On the long history of robust social rights discourse in the legislative and public political domains of constitutional argument and interpretation in America, see WE Forbath ‘‘Caste, Class, and Equal Citizenship’’ (1999) 98 Mich LR 1 [hereinafter Forbath ‘Caste, Class, and Equal Citizenship’] and WE Forbath ‘The New Deal Constitution’ in Exile’ (2001) 51 Duke LJ 165 [hereinafter Forbath ‘The New Deal Constitution’]. It was the rights discourse of New Deal and 1940s America that inspired the social rights provisions of many con- stitutions around the globe. See CR Sunstein ‘The Second Bill of Rights: The Last Great Speech of Franklin Delano Roosevelt and America’s Unfinished Pursuit of Freedom’ (prelim draft 26 July 2003) (copy on file with Tulsa Law Review) (noting the influence on post-World War II constitution-making in Europe, Asia, and Africa, of Franklin Roosevelt’s ‘four freedoms’ and ‘second Bill of Rights,’ and of the Universal Declaration of Human Rights, which Eleanor Roosevelt and others crafted to reflect FDR’s ‘four freedoms’ and second ‘Bill’). For a more sustained discussion, see M Glendon A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). 7 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E So, the authors of The Constitution in the Year 2020 will have to ponder anew whether, why, and how the Constitution and (a separate question) judicially enforced constitutional law should be interpreted to safeguard these commitments. When they do so, they will find no bet- ter interlocutor than Frank Michelman. No one has thought and written more deeply about the question of constitutional social rights. Spanning almost four decades, Michelman’s work offers several of the most important approaches to the problems of poverty and economic inequality in the precincts of American constitutionalism. In this brief essay, I will engage some of Michelman’s most important contributions. Partly, I’ll do so from the perspective of constitutional theory, partly, from the vantage point of an his- torian. Only by situating our past thinking in the context of the social movements and politi- cal moments that shaped that thinking can we appreciate its distinctive insights and blind spots. So, I will situate Michelman’s classic essays on constitutional welfare rights in the context of the welfare rights movement and its distinctive possibilities and constraints. This contextual account will set the stage for a textual argument, a critical reading of Michelman’s reading of Rawls’s epoch-making 1971 book, A Theory of Justice.8 Michelman, I’ll suggest, overlooks the extent to which Rawls is critical of welfare state liberalism in favor of a more ambitious con- stitutional political economy, which Rawls dubs ‘property-owning democracy.’ From Rawls, Michelman turned in the 1980s to republicanism, and a key aspect of Michelman’s enormous- ly influential contributions to the republican revival was his republican treatment of the dis- tributive dimension of constitutional property claims. Michelman reads republicanism as he reads Rawls; both imply constitutional welfare rights. But the republican tradition is largely hostile to welfare rights; its distributive norms point to the distribution of material opportuni- ties for self support and ‘independence.’ Welfare rights, I’ll suggest, are better seen as a critique of this distributive dimension of republicanism than as an implication of it. Happily, these historical and theoretical criticisms are part of a present conversation with Michelman about social rights.9 And as a round in that conversation, this essay is gratefully written, taking up not only Rawls and republicanism, but also more recent work by Michelman on social rights and constitutional democracy. (B) DIALOGUES WITH FRANK MICHELMAN: FIRST CITIZEN OF THE REPUBLIC OF LETTERS I say gratefully written because, as Jefferson might have put it, Frank Michelman is a first citizen of the republic of letters, and there is no more generous, careful, and imaginative reader in the re- public. He reads and engages with the works of fellow citizens everywhere, and every work is made deeper and clearer after Michelman’s light has shined on it, exploring unmapped distinctions and uncharted implications and resonances, leaving the work richer and the author gladly indebted. What’s more, Michelman’s style of engagement instantiates a dialogical ethics and helps make 8 J Rawls A Theory of Justice (1971). 9 See Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1825-27; FI Michelman ‘The Constitution, Social Rights, and Liberal Political Justification’ (2003) 1 Intl J Const L 13 at 25-34 (available at <http://www3.oup.co.uk/ijclaw/hdb/Volume_01/Issue_01/pdf/010013.pdf>) [hereinafter Michelman ‘Constitution and Social Rights’] (discussing Forbath’s conception of ‘social citizenship’ rights); FI Michelman ‘‘Democracy-Based Resistance’ to a Constitutional Right of Social Citizenship: A Comment on Forbath’ (2001) 69 Fordham LR 1893 [hereinafter Michelman Democracy Based-Resistance] (responding to Forbath ‘Constitutional Welfare Rights’ (note 7 above)). him an exemplar of some of the ideas his own writings explore. Compare, for just a moment, Michelman’s manner of reading with that of one his most important interlocutors: Jürgen Habermas. Habermas reads, critiques, and appropriates, trimming off what doesn’t fit and putting the useful parts to work in the ever-enlarging Habermasian machinery. Michelman’s mode of appropriation is different, more respectful and also more provisional, more in the way of dialogue than system-building. Michelman is more inclined to put the insights of one school of thought to work in order to reveal the blindness of another. He seems most comfortable in-between. Consider, for example, the controversies between pragmatists like Rorty and neo-Kantian liberals like Habermas.10 Inside law schools and elsewhere, it’s common to find scholars who seem to think that Rorty or someone else has delivered the knock-out punch to Habermas and his kind, or vice versa. As finely and shrewdly as anyone, Michelman can turn a pragmatist cri- tique of Habermas’s categorical distinctions ethics versus morality; the good versus the right; the principles of justice versus their application, and so on.11 But in contrast to those who line up in one of the two camps, Michelman seems to feel the pull of the neo-Kantian enterprise as strongly as the counter-tug of pragmatism. And he brings them into revealing contact, into a sustained dialogue that Michelman’s work enacts. Another instance of this same dialogical in-betweenness in the work of Frank Michelman is in-between liberalism and critical legal studies (CLS), which was a rare enough position, I believe, in the heated politics of Harvard Law School in the 1970s and 1980s. I don’t know how this translated in terms of faculty politics, but intellectually, Frank was distinctive: carry- ing on the liberal problematic justice, justifiability, justiciability, judicial review, and democra- cy while at the same time opening the doors of that discourse to fresh blasts of CLS and femi- nist insight.12 From the 1980s, however, we must hasten back to the 1960s, and follow this lib- eral man of the left back to his engagement with the War on Poverty. II Why Welfare?: The War on Poverty and the Welfare Rights Movement Michelman’s famous 1969 Harvard Foreword, ‘On Protecting the Poor through the Fourteenth Amendment,’13 was a product of what Michelman called the ‘great War’ in a material as well Frank Michelman on Social Rights 75 10 Among Rorty’s most important works are R Rorty Philosophy and the Mirror of Nature (1980); R Rorty Contingency, Irony, and Solidarity (1989); and R Rorty Truth and Progress (1998). Habermas’s important works include: J Habermas The Theory of Communicative Action (1987); J Habermas The Philosophical Discourse of Modernity: Twelve Lectures (1987); J Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1989); and J Habermas Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996). For a law professor’s read- ing of Rorty, see JW Singer ‘The Player and the Cards: Nihilism and Legal Theory’ (1984) 94 Yale LJ 1; and of Habermas, see WE Forbath ‘Habermas’s Constitution: A History, Guide, and Critique’ (1998) 23 L & Soc Inquiry 969. 11 See eg FI Michelman ‘The Problem of Constitutional Interpretive Disagreement: Can “Discourse of Application” Help?’ in M Aboulafai et al Habermas and Pragmatism (2002) 113-39; FI Michelman ‘Family Quarrel’ (1996) 17 Cardozo LR 1163 [hereinafter Michelman ‘Family Quarrel’] (Symposium on Habermas on Law and Democracy). 12 See eg FI Michelman ‘Justification (and Justifiability) of Law in a Contradictory World’ in J R Pennock & J W Chapman eds NOMOS XXVIII: Justification (1986) 71, 79-81; MJ Radin & FI Michelman ‘Pragmatist and Poststructuralist Critical Legal Practice’ (1991) 139 U Pa LR 1019. 13 FI Michelman ‘Foreword: On Protecting the Poor through the Fourteenth Amendment’ (1969) 83 Harv LR 7. 7 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E as a moral sense; we learn in its acknowledgments that the article ‘was prepared . . . with funds provided by The US Office of Economic Opportunity.’14 The Office of Economic Opportunity was the command center of the Johnson administration’s War on Poverty. It created Com- munity Action Agencies, and alongside them, it created the Legal Services Organization (LSO). In addition to law offices in the inner cities, the LSO funded a handful of law school-based back-up centers, including Harvard’s, with which Michelman was associated.15 A great portion of the work of these agencies and inner-city law offices involved ‘getting poor people to apply for welfare and attacking the social and legal barriers to their receiving it. Centuries-old restric- tions were broken down by a combination of civic unrest and federally funded organizing and litigation.’16 (A) WHY ‘WELFARE’? Constitutional scholars see the origins of the constitutional welfare rights idea in the Warren Court’s Fourteenth Amendment case law and the Court’s new solicitude toward the nation’s poor. But why was ‘welfare’ the terrain on which 1960s community activists, federal policy- makers, and legal advocates and scholars like Michelman came to wage their ‘War on Poverty’? The answer lies in the constraints and opportunities created by inherited statutory, institution- al, and ideological frameworks—the results of the victories and defeats of earlier efforts to forge a more substantive and ‘social’ array of citizenship rights. Put baldly, it was the defeat of key New Deal reforms in the 1930s and 1940s that deprived 1960s advocates of broader channels down which to try to nudge the Court’s solicitude. FDR’s famous ‘second Bill of Rights’ set forth not welfare but decent work and universal social insur- ance as the economic rights essential to free and equal citizenship in the twentieth century, but Roosevelt’s vaunted right to decent work met defeat at the hands of Jim Crow and the Solid South. Measures instituting rights to full employment, decent work, and social provision for all Americans enjoyed broad support; yet they expired in the New Deal Congress, doomed by the hammer lock that southern Democratic lawmakers enjoyed by dint of numbers, seniority, and key committee chairs. Hailing from an impoverished region with a populist tradition, most southern Democrats in Congress were staunch supporters of the New Deal until the late 1930s. In exchange for their support, however, they insisted on decentralized state administration and local standard setting of all labor measures, and they demanded that key bills exclude the main categories of southern labor. By allying with northern Republicans, or by threatening to do so, they stripped all the main pieces of New Deal legislation of any design or provision that threat- ened the separate southern labor market and its distinctive meld of class and caste relations, its racial segmentation, and its low wages. Keeping blacks dependent on local labor markets and poor relief was the principal reason for the segmented and caste-ridden system of social provi- sion and labor rights bequeathed by the New Deal.17 A quarter-century later, this system underpinned a fairly robust private welfare state of job security, pensions, and health insurance for organized workers in core sectors of the industrial 14 Idem at 7. 15 See idem. 16 Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1842. For a more detailed account, see idem at 1838-66. 17 I develop this historical argument in Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1835-45. economy. But that meld of public and private rights excluded most African Americans, whose anger exploded in all the large cities of the North, where millions of southern blacks had moved over the preceding decades to escape Jim Crow and rural unemployment. For them, public assistance, primarily Aid to Families with Dependent Children (AFDC), stood as the sole fed- eral protection against poverty. (B) AID TO FAMILIES WITH DEPENDENT CHILDREN Created by the Social Security Act of 1935,18 originally titled Aid to Dependent Children (ADC) and renamed AFDC in the 1950s, the federal ADC descended from the state-based Mothers’ Pensions programs of the early twentieth century, themselves a modern variant of the age-old practice of giving poor relief to ‘deserving widows.’19 Like the other branches of the Social Security Act, ADC was drafted to propitiate the South. So the states could determine AFDC benefits levels, and local administrators enjoyed vast discretion in making eligibility determinations.20 Local administrators used that discretion to buttress low-wage labor markets and to exercise other kinds of disciplinary power. In the South, for example, AFDC officials deemed poor black women ‘employable mothers,’ and kept them off the rolls when their labor was needed in the cotton fields.21 More generally, AFDC payments in the South and indeed, in most states, were kept appreciably below official poverty levels. And throughout the nation, local administrators in the early 1960s still vigorously enforced man-in-the-house rules. Through home visits, unan- nounced nighttime searches, and the like, they removed from the rolls any woman found to be associating with a man, especially if he seemed to live in her house. In this fashion, welfare offi- cers prevented public monies from supporting ‘immoral women’ and ‘unsuitable mothers’; at the same time, they kept poor men from exploiting AFDC to escape any of the rigors of the low-wage labor market.22 Even for its target universe of impoverished single parent families, AFDC reached a tiny fraction of the whole. Most did not even apply; of those who did, pover- ty-stricken newcomers to a locale met almost certain rejection. Since colonial times, wayfaring paupers had been ‘warned off’ and forcibly excluded by the custodians of poor relief. Through- out the country, local custodians of AFDC carried on a modern version of this practice. In New York, for example, the very fact that you applied for welfare was presumptive proof of why you had come to the city. Rejected as ineligible, instead of welfare, you and your offspring got tick- ets on a Greyhound bus bound for home.23 It was this separate, decentralized, and deeply gendered benefits program, stamped with many of the centuries-old degradations of poor relief, that welfare rights organizers, advocates, and attorneys sought to transform into a dignifying right to a guaranteed income. Frank Michelman on Social Rights 77 18 49 Stat 620 (1935). 19 W Bell Aid to Dependent Children (1965) 9 (internal quotation omitted); M Ladd-Taylor Mother-Work: Women, Child Welfare, and the State, 1890-1930 (1994) at 136-66; S Michel Children’s Interests/Mothers’ Rights: The Shaping of America’s Child Care Policy (1999) 424-79; T Skocpol Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) 73-78. 20 Bell (note 9 above) at 33-34, 63-65, 76-79, 81-82, 108-09. 21 Idem at 34-35, 42, 55, 79, 83, 130, 138. 22 See idem at 4, 6, 80, 213 fn 7; R S Melnick Between the Lines: Interpreting Welfare Rights (1994) 57, 85- 90, 98, 121-22, 130. 23 See Melnick (note 22 above) at 77. 7 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E (C) THE WELFARE RIGHTS MOVEMENT Fostered by the War on Poverty, the welfare rights movement of the 1960s was unique in the annals of American reform, and, as we’ll see, Michelman’s Foreword bears its stamp. Never before, or since, had poor African American women formed the rank and file of a nationally organized social movement. The movement departed from the vocabulary of reform bequeathed by earlier movements for social and economic justice. The welfare rights movement broke the links these older movements had forged between work and citizenship. Like them, the welfare rights movement claimed decent income as a right; unlike them, it did not tie this right to waged work. Generations of reformers had constructed their ideals of economic justice for the poor and working classes in a gendered fashion, around the workingman-citizen; decent income and social provision belonged, as of right, to (presumptively white male) waged workers, and to their eco- nomic dependents. Poor black women had always toiled outside their homes,24 but they had never been welcomed into the producers’ republic of earlier reformers. By the 1960s poor black women had had enough experience in urban labor markets to know that decent jobs were hard to find, and enough experience with workfare programs to think them coercive and demeaning. Theirs was a consumers’ republic.25 ‘”Give Us Credit for Being Americans,” read the [National Welfare Rights Organization’s (NWRO)] placards demanding Sears credit cards for welfare recipients.’26 For them a guaranteed adequate income was an unconditional citizenship right, essential to equal respect and an appropriate touchstone of equality in an affluent America. This rupture with the past was both a strength and a limit of the NWRO. It highlighted the coercive and gendered aspects of older employment-based ideals of economic and distributive justice. Gaining welfare as a matter of right would relieve unwarranted suffering and indignity. But it would not do enough to help poor African Americans make their way into a shared social destiny of work and opportunity. Without other enabling rights to training, decent work, and childcare, welfare rights risked modernizing the badges and incidents of racial and economic subordination instead of abolishing them. Mimicking AFDC also led to the absence of poor men in a movement that claimed to represent the nation’s poor and their needs. It led to a rights rhetoric that downplayed the disappearance of decently paid unskilled industrial jobs from the nation’s old industrial regions and center cities.27 Welfare rights risked saddling poor African Americans with a new variant of the old racist imagery of blacks as idle and dependent. But the NWRO played the hand that was dealt it. Perhaps only by mimicking AFDC and building on its provisions could a social movement of the poorest, most powerless Americans have been forged. By making AFDC-eligible women the movement’s constituents, welfare rights organizers had something to offer the rank and file, and the rank and file developed a sense of efficacy and entitlement by gaining their demands from the nation’s welfare departments. Likewise, AFDC provided a basis for substantial gains through litigation. And the litigation, of course, is what inspired Michelman’s work, supporting and supported by the War on Poverty. The rupture between the older ideal of a right to decent work and the new ideal of a right to welfare also stamped Michelman’s work in ways we are about to explore. 24 See J Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (1985). 25 See Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1850-55. 26 Idem at 1851. 27 This was the social fact that civil rights leaders like Martin Luther King and Bayard Rustin highlighted and called on Congress to remedy as a necessary condition for the ‘full emancipation and equality of Negroes and the poor’: Forbath ‘‘Caste, Class, and Equal Citizenship’’ (note 7 above) at 87. III Frank Michelman’s Constitutional ‘War on Poverty’ (A) WELFARE RIGHTS IN THE COURTS Constitutional scholars today remember Goldberg v Kelly,28 Shapiro v Thompson,29 and a handful of other constitutional decisions bearing on welfare rights, but we tend to forget the hundreds of statutory cases that dramatically broadened eligibility standards and went a remarkable distance toward transforming a grant-in-aid to the states to be administered as meanly as local officialdom saw fit, into a no-strings and no-stigmas national right to welfare.30 These cases saw the Supreme Court and the lower federal courts undertake dozens of remark- able doctrinal innovations and boldly revisionary readings of the statutory text and history.31 The whole push of these developments was reflected in the courts’ repeated insistence that pub- lic assistance for all the nation’s needy was, in the Supreme Court’s words, a ‘basic commit- ment,’ not charity or largess, but a right. The Court recognized a private right of action against the state welfare agencies that admin- istered AFDC,32 revising or ignoring jurisdictional rules that seemed to bar the way,33 and spurning the conventional remedy of federal funding cut-offs in favor of injunctive relief.34 Above all, the Court shoved aside the view, shared by judges, welfare administrators, and mem- bers of Congress alike for the first thirty years of AFDC’s existence, that under AFDC states had authority to run their own programs, imposing such conditions and standards as they chose, subject only to a handful of limitations listed in the federal statute.35 State and local autonomy over the administration of federal relief had been the southern Democrats’ sina qua non, and, as we know, the architects of the 1935 Social Security Act, of which AFDC was a part, had provided it. In place of the wide berth they had left for state discretion, the Court cre- ated a new presumption: ‘a heavy burden lay on state lawmakers and administrators to justify any exclusion, test or condition that deviated from the principle of “actual need”’.36 LSO attor- neys persuaded the federal courts to embrace this presumption and to wield it against hundreds of state rules excluding would-be AFDC recipients.37 Within the federal statutory categories, the federal courts in the 1960s and early 1970s proved extraordinarily willing to treat welfare under AFDC as a right of all needy individuals. The leading statutory case was King v Smith,38 in which the Court struck down an Alabama Frank Michelman on Social Rights 79 28 397 US 254 (1970). 29 394 US 618 (1969). 30 Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1862. 31 Idem at 1863. 32 See RB Stewart & CR Sunstein ‘Public Programs and Private Rights’ (1982) 95 Harv LR 1195 at 1289-90. 33 See eg Hagans v Lavine 415 US 528 534-35 fn 5 537 541-42 (1974); King v Smith 392 US 309 312 fn 3 (1968). 34 See Melnick (note 22 above) at 50. 35 See Bell (note 19 above) at 50; M Derthick The Influence of Federal Grants: Public Assistance in Massachusetts (1970); WJ Cohen ‘The Social Security Act of 1935: Reflections Fifty Years Later’ in The Report of the Committee on Economic Security of 1935 at 3 (50th anniversary ed Natl Conf on Soc Welfare 1985). 36 Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1859. 37 See SE Lawrence The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990) 123-48; generally MF Davis Brutal Need: Lawyers and The Welfare Rights Movement, 1960-1973 (1993). 38 392 US 309 (1968). 8 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E man-in-the-house eligibility rule issued by Governor George Wallace in 1964. Under Wallace’s rule, Alabama had dropped 16,000 children ninety percent of them black from its welfare roll. The three-judge court below had invalidated the rule on equal protection grounds.39 At oral argument, however, plaintiff’s LSO attorney sought a statutory ruling. ‘[I]f the decision goes off as the lower court’s did, then very little will have been accomplished. Even if we win in Alabama, HEW will not stop similar practices in other states [where man-in-the-house rules had no such discriminatory purpose or effect].’40 A statutory holding, ‘would give us all we wanted,’41 providing ‘a way in which the narrowest of rulings would have the broadest of implications. … “[G]ive us,”’42 counsel asked the Court speaking for the NWRO rank-and-file, “a decision interpreting the Social Security Act as having rejected the concept of a worthy and an unworthy poor”’.43 And the Court did so, giving welfare rights attorneys a reading of the Act that would shape AFDC case law for the next two decades.44 In the face of legislative history that ran almost entirely to the contrary, a unanimous Supreme Court concluded that in 1935 Congress had intended that all ‘needy, dependent children’ would be entitled to AFDC benefits, and that states and localities could not enforce their own narrower definitions of eligible parents. Thus, Alabama, in dispersing AFDC, could not decide that Mrs. Smith’s occasional visitor and lover (a Mr Williams with nine children of his own) was a ‘substitute father’ and breadwinner whose visits to Mrs Smith disqualified her and her children from the federal entitlement.45 Chief Justice Warren put aside a wealth of legislative history suggesting that Congress intended pre- cisely to allow states to apply their own standards of ‘moral character’ and ‘suitability’ (acqui- escing, as we saw, to the southern Democrats’ insistence on local control over ‘domestic affairs’ of race, caste, and the social and economic authority of local white elites). This history might have been relevant at one time, Warren noted, because the ‘social context’ in 1935 was one in which the distinction between the ‘worthy’ poor and the ‘undeserving’ was generally accept- ed.46 Now both society and Congress took a different view, ‘more sophisticated and enlight- ened than the “worthy-person” concept of earlier times.’47 The evidence that the Congresses that enacted the various post-1935 amendments to AFDC shared the Warren Court’s enlight- ened perspective was scant at best.48 Nonetheless, the Chief Justice proceeded to read the pre- amble and statement of purpose of the 1935 Act itself to mean that AFDC ‘was designed to meet a need unmet by programs providing employment for breadwinners.’49 Thus, ‘at the same time that it intended to provide programs for the economic security and protection of all children . . . [Congress surely would not have allowed the states] arbitrarily to 39 Smith v King 277 F Supp 31 41 (MD Ala 1967). 40 M Garbus Ready for the Defense (1971) 194. 41 Idem. 42 Idem at 194-95. 43 Idem (internal quotations omitted). 44 See King 392 US 309. 45 Idem at 328-30. 46 Idem at 320, 324-35. 47 Idem at 324-25. 48 The year before, in 1967, Congress had enacted amendments to AFDC that penalized states if they failed to reduce the number of illegitimate children on AFDC. Senator Robert Kennedy complained that ‘the man- in-the-house rule emerges from the conference strengthened rather than weakened’ and joined with other liberals in an unsuccessful attempt to kill the conference report. Melnick (note 22 above) at 87 (quoting 113 Cong Rec 36785 (Dec 14 1967)) (internal quotations omitted). 49 King v Smith 392 US at 328. leave one class of destitute children entirely without meaningful protection… Such an interpre- tation of congressional intent would be most unreasonable, and we decline to adopt it.’50 Relying on King v Smith,51 LSO attorneys went on to challenge a wide variety of state prac- tices. Most northern states had their own, less draconian man-in-the-house rules, like New York’s, which did not disqualify the family, but put some financial burden on the man in- volved.52 The lower courts took a hard line against all such practices, and the Supreme Court upheld them, enshrining a principle of ‘actual availability.’53 Thus, the much-resented man-in- the-house rule fell by the wayside, its defeat a victory for the welfare rights movement’s vision of woman’s autonomy. Other forms of presumed income also were successfully challenged, and the upshot was that courts indirectly increased family’s benefits.54 In the process of expanding their attack on man-in-the-house and other attributed income rules, the courts strengthened the general presumption against all types of state-imposed restrictions. Few facets of AFDC policy escaped scrutiny in the lower courts. State laws penalizing recipients for fraud; laws and regulations denying benefits to aliens; rules on verification procedure, foster care, and emergency assistance were all struck down.55 During the first thirty years of AFDC’s existence, there had been but one reported federal case interpreting the statute. Then, between 1968 and 1975, the years Frank Michelman wrote his first seminal pieces on welfare rights, the Supreme Court decided eighteen AFDC cases, and the lower federal courts decided hundreds more.56 Chiefly through statutory construction, the federal judiciary had gone a great distance toward transforming a grant-in-aid to the states into a no-strings, no-stigma, national right to welfare. But statutory construction could go only so far. It could not establish a decent social minimum as a floor on welfare benefits, or even prevent the states from diminishing payments as they expanded coverage under judicial nudging.57 And it could not challenge the exclusions inscribed in the statute’s categorical system, forcing Congress to change the system into one embracing all of the nation’s poor. If courts were to force these changes, it would be through constitutional adjudication. At first, LSO relied heavily on constitutional challenges. Residency requirements, as we’ve noted, carried forward a centuries-old tradition of localities warning out wayfaring paupers. Nine out of eleven lower courts agreed with welfare rights groups and the LSO that these requirements trenched on the welfare recipient’s right to travel; to be a member of the nation- al community had always included the right freely to travel among the states.58 In Shapiro v Thompson, the Supreme Court agreed that the states’ residency requirements unconstitutional- ly burdened poor Americans’ enjoyment of that right.59 More than that, Justice Brennan, writ- Frank Michelman on Social Rights 81 50 Idem at 330. 51 392 US 309 (1968). 52 Van Lare v Hurley 421 US 338 339-42 (1975). 53 Melnick (note 22 above) at 88-89; Lewis v Martin 397 US 552 (1970). 54 Melnick (note 22 above) at 89. 55 See eg Holley v Lavine 553 F2d 845 851 (2d Cir 1977) (rules excluding aliens); Maryland v Mathews 415 F Supp 1206 (DDC 1976) (verification procedures); Owens v Roberts 377 F Supp 45 (MD Fla 1974); JA v Riti 377 F Supp 1046 (DFNJ 1974) (rules penalizing fraud); Cooper v Laupheimer 316 F Supp 264 (ED Pa 1970) (rules on emergency assistance). 56 See generally Lawrence (note 37 above). 57 Rosado v Wyman 397 US 397 416-17 (1970). 58 Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1862. 59 394 US 618 629-31 (1969). On the lower court litigation and rulings against residency requirements, see FS Bloch ‘Cooperative Federalism and the Role of Litigation in the Development of Federal AFDC Eligibility Policy’ (1979) Wis LR 1 at 8-12. 8 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E ing for the Court, seemed to suggest (Justice Harlan, in dissent, called it a ‘cryptic suggestion’60) that strict scrutiny, applying the compelling state interest test to the residency requirement, might be justified for another reason not the right to travel, but the fact that welfare affects ‘the ability of the families to obtain the very means to subsist.’61 (B) GOLDBERG V KELLY, THE ‘NEW PROPERTY,’ AND THE HARD QUESTIONS Eight lower courts heard LSO challenges to states’ summary termination practices, and six held that the due process clause required pre-termination hearings.62 In 1970, with its decision in Goldberg v Kelly,63 the Supreme Court upheld the majority view.64 Declaring that welfare benefits were ‘a matter of statutory entitlement … [whose] termina- tion involves state action that adjudicates important rights,’65 Goldberg encapsulated the pre- vious five years of federal litigation and decisional law. By recognizing private rights of action, stripping broad swathes of discretionary power from local officials, and eliminating non-need based eligibility criteria, this new body of law had made welfare benefits into just such rights. The Court seemed to go further, stating more fully and forcefully than ever before the premis- es behind the ‘more sophisticated and enlightened’ view of welfare it had evoked (and attrib- uted to Congress) in King.66 In a footnote supporting its assertion that welfare benefits were ‘a matter of statutory entitlement,’ the Court observed, ‘it may be realistic today to regard wel- fare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property. It has been aptly noted that ‘[s]ociety today is built around entitlement… . Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen … [and] social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitle- ments, although recognized by public policy, have not been effectively enforced.’67 The long quotation was from Charles Reich, whose two enormously influential articles on the ‘new property’ were published in Yale Law Journal in 1964 and 1965.68 It is an argument about the status of welfare in an era in which ‘government largess’ takes myriad forms and con- stitutes so much of individual and corporate wealth. In Reich’s account, the welfare recipient belonged to a whole social order of Americans ‘liv[ing] on government largess.’69 ‘Social insur- ance substitutes for savings[, and] a government contract replaces a businessman’s customers and goodwill,’70 while in between the new pauper and pensioner and the new businessmen 60 Shapiro v Thompson 394 US at 661 (Harlan J dissenting). 61 Idem at 627 (majority). 62 Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1863. 63 397 US 254 (1970). 64 See Bloch (note 59 above). 65 397 US at 262. 66 392 US at 324-25. 67 Goldberg 397 US at 262 fn 8 (quoting CA Reich ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale LJ 1245 at 1255). 68 See CA Reich ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale LJ 1245 [hereinafter Reich ‘Individual Rights and Social Welfare’]; CA Reich ‘The “New Property’’ ’ (1964) 73 Yale LJ 733 [hereinafter Reich ‘New Property’]. 69 Reich ‘New Property’ (note 68 above) at 733. 70 Idem. stood petty entrepreneurs and tradesmen, the cab driver dependent on his medallion, the tav- ern keeper and the hunting guide whose livelihoods hinged on their licenses.71 In Reich’s anx- ious and nostalgic liberal narrative of American life, political and cultural antagonists, the cab driver or tradesman and the welfare mother, the factory owner and the union worker, were unit- ed by their common vulnerability to the state.72 In fact, precious few of Reich’s disparate forms of ‘new property’ were new.73 But the assimilation of pauper to tradesman and franchise-hold- er, the equation of welfare benefits with professional licenses and government contracts, was dramatically new, and this did the important discursive and doctrinal work. The ‘new proper- ty’ unlike the old was dispensed by the state in ‘the form of rights or status rather than of tan- gible goods.’74 How, then, Reich asked, can the new property fulfill the social function of the old property? How can it serve as an institution that secures the individual a measure of inde- pendence from state domination, when it is itself dispensed by the state?75 The question sound- ed in classical liberalism, and so did the answer. If government subsidies, contracts, pensions, and benefits were to serve as a basis for private autonomy and dignified existence, fulfilling the social function of property, then these various forms of largess must enjoy the same legal pro- tections as traditional common law forms of property. In particular, the new property, like the old, must be protected against arbitrary deprivations and invasions by the state. What the state gave, the state could not take away, at least not without due process. And, in fact, Reich observed, due process case law already had begun in the 1950s to estab- lish that the state could not take away such government-granted goods as an occupational license without ‘notice and a hearing.’76 Where the ‘freedom to earn a living’ was implicated, courts recog- nized that procedural due process’s protections of property applied. But welfare too involved liveli- hood; like traditional livelihoods, it had the potential to provide ‘a secure minimum basis for indi- vidual well-being and dignity,’77 but only if the legal order recognized it too as a form of property. For all its resonance, Reich’s argument left many questions dangling, and so did Goldberg. First was the question of distributive justice. Conceding that welfare benefits, if recognized as secure legal entitlements, could perform the ‘social functions’ Reich and the Court claimed for them, why were the poor entitled to them? On what distributive premise did they rest? On the face of it, wel- fare was not a moral equivalent to a professional license or a pension right in a union contract or even to government-based, but partly contributory, social insurance. Effort and exchange were the ordinary normative bases in liberal legal culture for such ‘property’ claims. What was the norma- tive argument that made welfare a cognate right, when on the face of it, welfare differed from the others by distributing goods with neither effort nor exchange to underpin the result? Second was the question of whether the legal/constitutional order’s recognition of welfare as a right had only formal and procedural bite. If the social function of welfare as property was to pro- vide ‘a secure minimum basis for individual well-being and dignity,’ then did the entitlement not entail a measure of substantive constitutional protection—say, against lawmakers’ decision to repeal the entitlement or to diminish it below the minimum?78 Or was that kind of recognition of the property-like aspect of welfare strictly a matter of public policy for legislatures to determine? Frank Michelman on Social Rights 83 71 See idem at 758-59. 72 Agency discretion wielded ‘life and death’ power over the livelihoods of one and all. See idem at 758. 73 See WJ Novak The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). 74 See Reich ‘New Property’ (note 68 above) at 738. 75 See idem. 76 Idem at 741. 77 Idem at 786. 78 Idem. 8 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E For Reich the right to welfare seemed to rest on the involuntary nature of individual poverty. ‘Today,’ he wrote in the full text of the passage from which the Goldberg Court quoted: we see poverty as the consequence of large impersonal forces in a complex industri- al society … [Past eras saw poverty as flowing from individual ‘idleness’ and other moral failings.] It is closer to the truth to say that the poor are affirmative contribu- tors to today’s society, for we are so organized as virtually to compel this sacrifice by a segment of the population. Since the enactment of the Social Security Act, we have recognized that they have a right – not a mere privilege – to a minimal share in the commonwealth.79 As an assertion about the commitments inscribed in the nation’s statutes, this is bunk.80 As moral reasoning, it also is somewhat odd. We may view compelled sacrifices as affirmative con- tributions to the commonwealth, but these tend to involve some measure of individual exertion say, the sacrifices endured as a conscript in a national army. What Reich describes here is more like a casualty loss from the accident of poverty or rather the accidental loss of a livelihood because American society is ‘so organized as virtually to compel’ one’s exclusion from the labor market. This would point toward welfare as a kind of just compensation. Of course, the compensation clause is not where the Court looked for constitutional footing. ‘From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty,’81 the Court observed, citing and paraphrasing Reich. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community … . Public assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.’82 So, the Court did not follow Reich in his blunt assertion that welfare was the poor person’s just desert as a conscript in the reserve army of the unemployed. It did suggest that because supra-individual, social forces ‘contribute’ to a person’s poverty, welfare should be dignifying and not degrading. Indeed, it implied that assuring that the material bases of ‘well-being’ were available in a dignifying manner stood as a fundamental or ‘founding’ national ‘commitment.’ Reich’s bleak quid pro quo rubbed abrasively against the ideal of equal opportunity. That ideal signified bringing the nation’s poor into a shared world of work and opportunity, not compen- sating them for permanent exclusion from it. So, the Court cast welfare not as compensation for the jobless poor’s involuntary ‘contribution’ to the economy, but as a means of bringing within their reach ‘opportunities … to participate … in the life of the community.’ Presumably, this meant that without means of subsistence, the poor could not begin to attain education and decent work or to participate in civic life. Participating in these spheres not welfare as such is the social basis of equal citizenship, which is why welfare was more the fruit of the New Deal’s 79 Reich ‘Individual Rights and Social Welfare’ (note 68 above) at 1255. 80 In point of fact, the Social Security Act recognized no such right; it provided time-limited unemployment insurance and old-age pensions to those who contributed, mothers’ pensions (ADC), and public assistance for the blind and the elderly poor—those who could not presently or could no longer be expected to work, and nothing at all for the ‘idle poor.’ See Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 68-81. 81 Goldberg 397 US at 264-65. 82 Idem at 265 (quoting US Constitution preamble). failure to enact social citizenship than its fulfillment. But here, in a case involving the children and grandchildren of the very Americans the New Deal had excluded, the Court was casting welfare provision, in the words of the Preamble, as a step toward including all Americans in a common framework of ‘Liberty’ and ‘the general welfare.’ With these striking references to the Constitution, the Court seemed to be signaling a will- ingness to consider whether some constitutional provision might grant a right to welfare for those confronting what the Court called ‘brutal need.’83 As we’ve seen, this was the push of the Court’s remarkable statutory construction cases that welfare was an individual entitlement and need the only legitimate touchstone of exclusion from it. The Court’s reference to ‘the Blessings of Liberty’ suggested, in strong echoes of Roosevelt’s ‘second Bill of Rights,’ that a measure of economic security was indispensable to freedom and citizenship.84 Even more clearly, the Court spurned the notion that welfare was simply a humanitarian measure; rather, it was a means of bringing ‘within the reach of the poor … opportunities … to participate meaningfully in the life of the community.’85 Welfare, then, was being cast as a necessary, though not a sufficient, basis of equal citizenship, a step toward including all Americans in a common framework of ‘Liberty,’ a matter of obvious constitutional significance. Thus, the Court seemed to be verging on judicial recognition of something very much like rights to minimum welfare, education, and other forms of social provision, when the Republican victory in the 1968 presidential election deprived the Court’s liberals of the votes they needed to carry the process forward. In 1969, President Nixon appointed Warren Burger; in 1970, Harry Blackmun, whose first years on the Court saw him aligned with the new Chief; in 1972, Nixon appointed Lewis Powell and William Rehnquist. Who can doubt that four Humphrey appointments, instead of four Nixon appointments, would have made the Dandridge v Williams86 and San Antonio Independent School District v Rodriguez87 dissents into majority opinions? In Dandridge, the lower court had built on Goldberg and the other welfare rights precedents to strike down Maryland’s dollar maximum (of $250 per month) on welfare grants to poor families. Plaintiffs claimed that the maximum discriminated against poor children in large fam- ilies, and the court agreed, applying heightened scrutiny to the measure because it affected the constitutionally important interest in welfare, and concluding that the law ‘cut[] too broad a swath on an indiscriminate basis.’88 Under the new Chief Justice’s leadership, the Supreme Court reversed, announcing that no longer would the Court attend to the details of welfare pro- grams, even if they appeared discriminatory or made harsh distinctions among people equally in need. Acknowledging that ‘administration of public welfare assistance … involves the most basic economic needs of impoverished human beings,’89 the Court declared that ‘the dramati- cally real factual difference between [welfare regulation and regulation of business or industry provided] no basis for applying a different constitutional standard.’90 Frank Michelman on Social Rights 85 83 Idem at 261 (quoting Kelly v Wyman 294 F Supp 893 900 (SDFNY 1968) (quoting Student Author ‘Withdrawal of Public Welfare: The Right to a Prior Hearing’(1967) 76 Yale LJ 1234 at 1234, 1244)) (inter- nal quotations omitted). 84 Goldberg v Kelly 397 US at 265. 85 Idem. 86 397 US 471 (1970). 87 411 US 1 (1973). 88 Dandridge v Williams 397 US at 484 (quoting Williams v Dandridge 297 F Supp 450 469 (D Md 1968)) (internal quotations omitted). 89 Idem at 485. 90 Idem. 8 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E In dissent, Justice Marshall assailed ‘the Court’s emasculation of the Equal Protection Clause as a constitutional principle applicable to the area of social welfare administration.’91 Marshall approvingly invoked the arguments of Michelman and others on behalf of a substantive right to welfare, as well as Article 25 of the Universal Declaration of Human Rights,92 which confers just such a right. Thus, he signaled the dissenters’ inclination to read the Constitution as conferring something like a right to livelihood. On a Humphrey, rather than a Nixon, Court, the trajectory of constitutional doctrine after Dandridge most likely would have been in the direction of ever more exigent signals that Congress and the States must make up shortfalls between statutory offerings and the real world of ‘brutal need’ and include the statutorily excluded. (C) MICHELMAN ON THE HARD QUESTIONS: ‘MINIMUM PROTECTION,’ ‘JUST WANTS,’ AND ‘BASIC NEEDS’ Dandridge, however, lay in the future as Frank Michelman set to work on the unfinished nor- mative underpinnings of constitutional welfare rights. The federal courts had labored mightily in statutory AFDC cases to make need the sole criterion for eligibility. Justice Brennan, in Shapiro, remember, even had intimated that need of families for the very means of subsistence might become a member of the new constitutional family of fundamental interests, and there- by subject classifications in and exclusions from welfare statutes to strict scrutiny.93 But need had never stood on the same plane as effort or exchange in the distributive norms of common law or constitutional doctrine. Need needed an argument that sounded in distributive justice. Charles Reich’s articles did not provide one.94 Reich urged courts to attack official arbitrari- ness and discretion, and the insecurity and indignities they bred. He offered a sociological rationale for treating statutory welfare benefits as rights, but no moral or constitutional argu- ment why courts were obliged to provide for the needy whom lawmakers had left out, or to remedy the shortfalls between statutory offerings and actual need. From the point of view of a legal scholar who sympathized with the welfare rights movement, the need-based right still needed arguments that extended beyond procedural to distributive justice and addressed the right’s substantive reach and bounds. Frank Michelman set out in search of such arguments. He reported on his progress in two pioneering articles, the 1969 Harvard Foreword, ‘On Protecting the Poor through the Fourteenth Amendment,’95 and his 1973 ‘In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice.’96 ‘Protecting the Poor’ was an effort to nudge doctrine and doctrinal scholarship toward a theory of judicially enforceable constitutional welfare rights. ‘In Pursuit of Constitutional Welfare Rights’ was a reading of John Rawls’s epoch-making book,97 examining how Rawls’s theory bore on the idea of justiciable welfare rights, and how such an examination, in turn, might illuminate Rawls’s theory. 91 Idem at 508 (Marshall & Brennan dissenting). 92 Idem at 521 fn 14. 93 See 394 US at 638. 94 The text oversimplifies. Reich, as we saw, did gesture toward a justificatory argument based on compen- sation: welfare was just compensation for society’s more or less conscious choice of a political economy that offered too few decently paid jobs to go around. 95 Michelman (note 13 above). 96 FI Michelman ‘In Pursuit of “Constitutional Welfare Rights”: One View of Rawls’ Theory of Justice’ (1973) 121 U Pa LR 962. 97 See Rawls (note 8 above). What, asked Michelman, is ‘the role of courts … [in] the great War’98 on poverty? He answered with a reading of a handful of recent equal protection decisions Shapiro, which had been decided in the 1968 Term, Harper v Virginia State Board of Elections,99 Douglas v California,100 and a few of their kin. Michelman dubbed these cases the Court’s ‘contribution to the great War.’101 Shapiro, Harper, and Douglas all could be read as resting, partly, on a notion of wealth discrimi- nation.102 Many lower courts103 and liberal commentators wishfully read them as signs that the Court might bring the nation’s poor into the ‘inner circle’ of judicially protected classes.104 For his part, Michelman read the decisions differently. The Court, he agreed, was embarking on ‘the elaboration of constitutional rights pertaining to the status of being poor,’105 and it had clothed the decisions presaging these rights in the ‘verbiage of inequality and discrimination.’106 But the ‘inchoate theories of social justice … at the roots’107 of these cases was ill expressed in the language of ‘equality or evenhandedness.’108 Applying strict scrutiny to laws that fall unequally on the nation’s poor would sweep too broadly; such government action is everywhere. Nor does equality offer a plausible benchmark for answering the question how much protection is ‘enough.’ ‘”As much as” seems to provide just the certainty of measure which “enough of” so sorely lacks.’109 But Frank Michelman on Social Rights 87 98 See Michelman (note 13 above) at 8-9. 99 383 US 663 (1966) (holding that state may not condition franchise on payment of tax or fee). 100 372 US 353 (1963) (holding that state must provide counsel to criminal accused on first appeal as of right, irrespective of court’s assessment of probable merits). 101 See Michelman (note 13 above) at 9. 102 Harper held that statutes discriminating on the basis of wealth were, like those discriminating based on race, ‘traditionally disfavored’ 383 US at 668. Douglas spoke of ‘that equality demanded by the Fourteenth Amendment where the rich man … enjoys the benefit of counsel’s [assistance] … while the indi- gent … is forced to shift for himself’: 372 US at 358. The Court noted that ‘the evil [in such a situation] is … discrimination against the indigent,’ idem at 355, and that ‘an unconstitutional line has been drawn between rich and poor.’ Id at 357. In his Shapiro dissent, Justice Harlan lamented the majority’s ‘cryptic suggestion’ that welfare constituted a fundamental interest giving rise to the strict scrutiny/compelling state interest test the Court’s emergent equal protection doctrine had begun to extend from suspect racial classi- fications to other invidious discriminations and fundamental constitutional interests nowhere evident in the constitutional text: 394 US at 661 (Harlan J dissenting). 103 Thus, the same year as Michelman’s ‘Protecting the Poor,’ a three-judge district court in New York enjoined a recent change in the state’s welfare regulations, which reduced public assistance payments in counties sur- rounding New York City to levels below those paid to city residents, when they had previously been grouped together. Rothstein v Wyman 303 F Supp 339 (SD FNY 1969). Applying strict scrutiny to the new classification scheme, the district court wrote, ‘Receipt of welfare benefits may not at the present time constitute the exercise of a constitutional right’; nonetheless, the court deemed controlling the teaching of Harper and Shapiro, that classifications creating ‘inequalities affecting the exercise of fundamental or crit- ical personal rights’ must be scrutinized under ‘a more stringent standard’: idem at 346. As in Harper and Shapiro, so here the court found a conjunction of a ‘fundamental right’ and a ‘disadvantaged minority’— only here the right was welfare and the minority the poor. While welfare was only an incipient constitu- tional right, an emergent fundamental interest, Shapiro still seemed to the Rothstein court to mark the Supreme Court’s acknowledgment that ‘[a]ccess to [the] bare necessities of life’ was as ‘fundamental’ as vot- ing. See idem at 346-48. And Douglas marked a dawning recognition of the poor as a protected minority. 104 See JE Coons et al ‘Educational Opportunity: A Workable Constitutional Test for State Financial Structures’ (1969) 57 Cal LR 305 at 365; See generally AJ Goldberg ‘Equality and Governmental Action’ (1964) 39 FNY U LR 205; LG Sager ‘Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent’ (1969) 21 Stan LR 767. 105 See Michelman (note 13 above) at 16. 106 Idem. 107 Idem at 10. 108 Idem. 109 Idem at 18. 8 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E would a court be comfortable explaining ‘why X is entitled to, say, [as much legal assistance on his appeal as] Y in fact has rather than what justice requires?’110 If equal protection, as applied to the plight of poverty, swept too broadly, it also stopped short of the mark, because equal protection implies ‘a “state action” qualification upon government’s duties to relieve against hazards of pover- ty.’111 Yet, it was ‘less easy to be reconciled to the “state action” notion when alleviation of cer- tain, specially poignant hardships or crushing disadvantages is thought to be the object… . [Then,] the government’s noninvolvement … may come not as relief but as reproach.’112 Thus, while inequality and discrimination were the doctrinal notions near at hand, they were misleading. The upsetting feature in the equal protection cases involving poverty was not some odious discrimination that might accompany a poor person’s deprivation of a good he couldn’t afford; what was disturbing was the deprivation itself. So, Michelman sought to use the cases as data points from which to infer the outlines of a constitutional universe of ‘just wants’ or ‘basic needs.’ Not equal protection, he insisted, but ‘minimum protection’ was the heart of the matter.113 Focusing on specific deprivations of basic needs was ‘a much more manageable task’114 for courts. Michelman strapped himself to the mast of moderation, and vowed to keep ‘resolutely deaf to [the Court’s] superfluous [equality] rhetoric.’115 His was a more modest picture of the courts’ part in ending poverty: not ‘railing against tides of economic inequality which they [can’t stem], but … busy with the critically important task of charting some islands of haven from eco- nomic disaster in the ocean of (what continues to be known as) free enterprise.’116 After Dandridge and Rodriguez, it became fairly clear that most of the Justices on the Burger Court would not compel states or Congress to make up any shortfall between statutory offerings and the real world of ‘brutal need,’ nor etch out a constitutional universe of just wants, nor subject state laws or practices that fell heavily or arbitrarily on the poor to any exacting constitutional stan- dard. Not unless there were some other, more familiar constitutional value entwined in the case: the fairness of the criminal process, ending the South’s disenfranchisement of blacks and poor whites, vindicating the citizen’s right to travel among the states of the Union free from discrimination. Indeed, the idea that ‘lawyers in criminal courts are necessities, not luxuries’117 harked back to the 1930s and Powell v Alabama;118 it spoke to the Court’s special solicitude for the integri- ty of the judicial process and its sensitivity toward the charge that ‘the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot.’119 Harper, striking down Virginia’s poll tax, seems likely to have been akin to Powell in most Justices’ minds, completing the dismantling of Jim Crow, rather than identifying the first ‘islands of [economic] haven’120 on a constitutional map of basic needs and just wants. What is important for us about ‘Protecting the Poor,’ however, is not its failed prophecy about doctrinal developments, which, after all, may merely have been the upshot of Nixon’s 110 Michelman (note 13 above) at 18. 111 Idem at 11. 112 Idem. 113 Idem at 13-14. 114 Idem at 8. 115 Michelman (note 13 above) at 33. 116 Idem. 117 Gideon v Wainwright 372 US 335 344 (1963) (holding that indigent felony defendants entitled to state- funded trial counsel under the Sixth Amendment). 118 287 US 45 (1932) (holding that indigent defendant in capital case entitled to state-financed counsel under the Sixth Amendment). 119 Douglas 372 US at 357. 120 Michelman (note 13 above) at 33. razor-thin victory in the 1968 election. What matters here is the Foreword’s optimism about the open-ended quality of those developments and its identification of courts and author with the ‘great War’ on poverty. As we noted, ‘Protecting the Poor’ was written with ‘funds provided by’ the command center of that ‘War’ and while Michelman was associated with Harvard’s LSO back-up center.121 The Harvard Center litigated special education and school desegregation cases; like other LSO offices, its occupants saw themselves battling against the intertwined evils of racism and poverty, training scores of LSO attorneys and working with community organi- zations.122 Unlike other back-up centers, like Columbia’s, it lacked a strong ‘movement’ tilt, and had nothing quite like Columbia’s close ties with the NWRO.123 Intellectually, however, Michelman joined the NWRO and the attorneys and policy mavens surrounding it in their sharp break with inherited rights discourse. In contrast with the NWRO, ‘Protecting the Poor’ and ‘In Pursuit of Constitutional Welfare Rights’ do not defend a guaran- teed income but instead a bundle of ‘insurance rights’ (to food, shelter, health care, education). But in common with the NWRO, Michelman breaks the link with work. His constitutional wel- fare rights are unconditional. Thus, with the NWRO, Michelman rejects the centuries-old dis- tinctions between ‘worthy’ and ‘unworthy’ candidates for public provision. There are no dis- tinctions here between the disabled and able-bodied, the ill-fated and blameworthy, the wid- owed and promiscuous, the earnest job-seeker and the shiftless and idle.124 Instead, Michelman means to summon forth a theory of distributive justice that is insistently unsatisfied by a polit- ical economy affording everyone a ‘fair opportunity’ through ‘full employment,’ ‘income trans- fers,’ and the like125 to provide for everyone’s basic needs or just wants. ‘Protecting the Poor’ requires ‘more’; it requires basic needs or just wants ‘will be met when and as felt, [regardless of] … effort, thrift, or foresight.’126 Michelman does not dispute that justice requires the kind of political economy that enables everyone to make a decent living through decent work. At one point, he even notes that a par- ticipant in a Rawlsian assembly might well seek in addition, and perhaps even prior to, insur- ance rights assurance of some of social citizenship’s mainstays in the form of full employment, income supplements, and the like.127 But apart from this passing observation, work in all its forms waged and unwaged, dignifying and demeaning, decently rewarded and socially valued and not does not figure at all in Michelman’s account of the constitutional dimensions of the ‘great War’ on poverty.128 In this, of course, Michelman departs from the social citizenship tra- Frank Michelman on Social Rights 89 121 Idem at 7 fn *. 122 See generally MW Edelman Lanterns: A Memoir of Mentors (1999). Edelman was a director of the Harvard Center on Law and Education. 123 See Forbath ‘Constitutional Welfare Rights’ (note 7 above) at 1855-59. 124 Michelman welcomes the challenge to answer the ‘compelling … objection to welfare rights, that such rights signify redistribution from the prudent and industrious to those who have culpably failed to grasp oppor- tunities to provide for their own security’: Michelman (note 96 above) at 969. 125 See Michelman (note 13 above) at 14 fn 18. 126 Idem at 14. 127 Idem at 15 fn 21. 128 One might think that such social citizenship principles as a right to work are absent from Michelman’s con- stitutional theorizing, because they lie beyond anything courts could hope to contribute to the anti-poverty campaign. But it seems fair to say that for the Michelman of these two essays, ‘minimum protection’ consti- tutes the full reach of the Constitution’s—and not merely the constitutional courts’ ’protection of the poor.’ No Constitution seen from the vantage point of civil society or of Congress would contain any different rights or equality norms. As we’ll see, infra text accompanying notes 172-78, Michelman does address constitutional advocacy in political fora, and he casts the social minimum for constituting equal citizenship in the same mold. ‘Insurance rights’ remain the constitutional ticket, whether in Congress or in the courts. 9 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E dition I have reconstructed and chronicled elsewhere.129 It sought to find or include these norms in the Constitution—to serve, in much the same terms that Michelman applies to welfare rights, as touchstones for ‘convincing advocacy’ and ‘foothold[s] for challenging legislative judg- ments’130 that fell short of assuring decent work opportunities and decent livelihoods for all.131 This lacuna results in an argument for welfare rights that assigns those rights social work they cannot do; they cannot secure the social bases of self-respect and mutual respect in American life. Or so I will suggest. But I will do so in the context of a critical reading of Michelman’s reading of Rawls, to which we must turn. IV A Critical Reading of Michelman on Rawls and Welfare Rights (A) THE DIFFERENCE PRINCIPLE AND CONSTITUTIONAL POLITICAL ECONOMY What was afoot in the courts shaped the way Michelman approached Rawls’s A Theory of Justice. When Michelman turned in earnest to Rawls, he did so with a mind to asking [h]ow … the book [bore] upon the work of legal investigators concerned or curious about recognition, through legal processes, of claimed affirmative rights (let us call them “welfare rights”) to education, shelter, subsistence, health care and the like, or to the money these things cost.132 The answer was a vexed one. Michelman rested welfare rights on a distributive principle of ‘minimum protection’ or ‘just wants’; Rawls offered something different. The chief basis for welfare rights or for ‘the money these things cost’ in A Theory of Justice was Rawls’s difference principle. The difference principle, you’ll recall, states that institutionalized inequalities must be justified by dint of being in the interests of the least advantaged.133 Inequalities that do not redound to the benefit of those at the bottom are illegitimate. For Rawls, this principle is not cashed out through income standards or transfer payments alone; it must imbue the general ‘organization of the econ- omy,’ and the distribution of wealth, power, and authority as well as income.134 Because his focus rests on welfare, however, Michelman reads the difference principle with an eye to income. ‘Even apart from the quest for justiciability,’135 he writes (and we will return to that quest), ‘the differ- ence principle is unsatisfactory’;136 for Rawls seems interested simply in maximizing the income 129 See Forbath ‘Caste, Class, and Equal Citizenship’ (note 7 above). 130 Michelman (note 96 above) at 1003. 131 Idem at 1002-03. Compare Michelman’s language about welfare rights arguments in political fora to the statements of New Dealers, which I quote in some detail, in ‘Caste, Class, and Equal Citizenship’ (note 7 above) suggesting that constitutional social and economic rights should serve as standards for the polity to judge ‘the acts of legislatures and executives.’ 132 Michelman (note 96 above) at 962. 133 See Rawls (note 8 above) at 100-01; J Rawls Political Liberalism (1996) 283. Michelman explicates and crit- icizes the difference principle in ‘In Pursuit of ‘Constitutional Welfare Rights’,’ (note 96 above) at 976-88. 134 See Rawls (note 8 above) at 7-11, 54. 135 Michelman (note 96 above) at 982. 136 Idem. of those at the bottom, irrespective of whether that income is adequate to meeting basic needs,137 or whether it substantially exceeds that level.138 Moreover, Michelman finds it difficult to feed the ‘primary good of self-respect’139 into the machinery of the difference principle, because the good of self-respect ‘does not seem to fit the difference principle’s “more is better” attitude.’140 Yet, from the point of view of liberal constitutional theory, the centrality of self-respect and equal respect in Rawls’s theory are an important part of his appeal. Michelman does find some support for a just wants/insurance rights approach to welfare elsewhere in Rawls’s theory. While the difference principle is uncongenial, it is possible that Rawls’s equal liberty principle or his principle of fair equality of opportunity, or even ‘justice as fairness’ as a whole implies a bundle of ‘insurance rights’ such as Michelman is champi- oning.141 Mainly, however, Michelman focuses on explicating and assessing the difference prin- ciple as a source of welfare rights. Unlike the ‘more is better’ attitude of Rawls’s difference principle, Michelman’s ‘just wants’ theory provides a touchstone for determining the metes and bounds of welfare provision that seems directly tied to equal respect.142 Beyond the point at which welfare provides a decent minimum of social goods, it seems wiser to allow considerations of economic incentives and market efficiency to hold sway. As a rational actor behind Rawls’s ‘veil of ignorance,’ one might well prefer assurance that one’s ‘just wants’ be satisfied, and for the rest one might prefer to wager that one’s individual capacities were at least middling as the market measures things and choose against the ‘more is better’ attitude of the difference principle. Certainly, Michelman makes a valuable point about the vulnerability of the difference prin- ciple from the point of view of calibrating welfare rights or a minimum income. However, we risk being misled if we look at the difference principle only from this perspective. From it, we might surmise that what separates Rawls’s views about social and economic rights from Michelman’s is simply a quarrel over what form of income redistribution to enshrine in the Constitution minimum income pegged to the difference principle, or minimum welfare rights pegged to just wants. In fact, neither of these alternatives captures Rawls’s view of how the principles of justice, including the difference principle, bear on constitutional political econo- Frank Michelman on Social Rights 91 137 ‘A precept for the distribution of material social goods,’ writes Michelman ‘which ignores claims regarding basic needs as such, and is sensitive only to claims regarding money income, will for many of us Seem incomplete and thus not fully in harmony with our “considered judgments”’. 138 Michelman states: ‘Income-transfer activity is simply to be intensified just up to the point where any fur- ther intensification lowers total output so much that the bottom’s absolute income begins to fall even as its relative share of total consumer satisfaction continues to rise. Under the difference principle, that is all there is to it. There can be no implicit insurance-rights package because there is no concern for what the bottom spends (or is able to spend) its income own: Income is income a primary, an elemental, social good, of which the bottom simply wants and is entitled to as much as it can get’: idem at 981. 139 Idem at 983. 140 Michelman (note 96 above) at 983. 141 After all, fair equality of opportunity implies a right to education, and that right entails ‘subsistence or health or freedom from extreme environmental deprivation,’ for without them, ‘how could educational offerings effectuate fair equality of opportunity?’ Idem at 989. So too, the ‘[e]njoyment of basic liberties’ like freedom of speech has ‘fairly straightforward and objective biological entailments,’ which spell subsistence and the other insurance rights. Finally, the ‘preeminent good of self-respect may imply welfare rights reaching beyond those biological entailments,’ although Michelman does not explore how: idem at 990. 142 Michelman may have been the first sympathetic critic of Rawls to suggest that the difference principle and the income guarantee it entailed were not the only nor the most compelling principle that could be derived from Rawls’s original position A just wants principle might fit the bill better. For a thoughtful later read- ing, canvassing the critics and making these points in greater detail, see J Waldron, Liberal Rights: Collected Papers 1981-1991 (1993) at 250-70. 9 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E my. Rawls devotes great attention in A Theory of Justice to just this subject; what he writes makes plain, I think, that he would include constitutional baselines respecting work and par- ticipation in the economic order, as well as welfare. Despite the tension he uncovers between the primary good of self-respect and the ‘more is bet- ter’ attitude of the difference principle applied to income, Michelman is right in suggesting that the difference principle is concerned with the social bases of self-respect and mutual respect. Indeed, it concerns them more than it does the rational actor’s calculus of consent regarding income shares. When Rawls writes about consent, he is concerned about what it takes to make each person a consenting member a charter member of society. He is concerned not only, or even primarily, with rational choice, but with contract, undertaking, and commitment143 more pre- cisely, with consent and commitment to the social enterprise, and, conversely, with the conditions which turn consent and commitment into submission and subjection. This is the problem Rawls dubs the ‘strains of commitment.’144 Under an unjust political economy, such as ours, there are millions of citizens who cannot plausibly see themselves as members of a political community organized in their name to promote their interests and capacities. Instead of supporting their capacities for commitment we have strained them to a breaking point. What, then, are the political-economic bases of consent and commitment? More important, writes Rawls, than ‘a high material standard of life’145 in securing ‘a just and good society … is meaningful work in free association with others, these associations regulating their relations to one another within a framework of just basic institutions.’146 That is why, as you will recall, the difference principle reaches beyond income to the distribution of wealth and power; it concerns shared authority no less than a fair share of goods. This is the key difference between Rawls’s con- stitutional political economy which he dubs a ‘property-owning democracy’147 and the political economy of the welfare state. ‘In a welfare state,’ he writes in a 1987 preface to A Theory of Justice, ‘the aim [of political institutions] is that none should fall below a decent standard of life … . By contrast, in a property-owning democracy the aim is to carry out the idea of society as a fair system of cooperation over time between citizens as free and equal persons.’148 The ‘back- ground institutions of property-owning democracy … try to disperse the ownership of wealth and capital, and thus to prevent a small part of society from controlling the economy and indirectly political life itself.’149 ‘The idea is not simply to assist those who lose out through accident or mis- fortune (although this must be done), but instead to put all citizens in a position to manage their own affairs and to take part in social cooperation on a footing of mutual respect … .’150 In a word, Rawls’s precepts for political economy fall squarely within the social citizenship tra- dition. His political economy of citizenship bears a strong family resemblance to those of the Populists, Progressives, and New Dealers who fashioned the variants of social citizenship thought in America. Like them, he holds that one cannot be a consenting, charter member, a ‘citizen,’ of 143 Rawls (note 8 above) at 176: ‘[W]hen we enter an agreement we must be able to honor it even should the worst possibilities prove to be the case… . Thus the parties must weigh with care whether they will be able to stick by their commitment in all circumstances.’ 144 Idem at 145, 176, 423. For a thoughtful discussion of this theme in Rawls, see Waldron (note 142 above) at 259-63. 145 Rawls (note 8 above) at 290. 146 Idem. 147 J Rawls ‘Preface for the French Edition of A Theory of Justice’ in Samuel Freeman (ed) Collected Papers (1999) 415 at 419. 148 Idem. 149 Idem. 150 Idem. the national community without decent work, a measure of economic independence, and at least a small share of authority over the governance of one’s work and shared economic life. Whether one rests one’s normative claim for welfare rights on some variant of Rawlsian liberal- ism, as Michelman does in the work we have been considering, or one relies on the republican tra- dition, as he does in the essays we take up later, a key part of the argument for welfare rights is this: These rights are necessary to secure the social bases of self-respect (the main concern in Rawls) and of independence and mutual respect or equal standing (republicanism’s primary emphasis). In sum, welfare rights are necessary to a liberal republican (or, if you prefer, a republican liberal) concep- tion of equal citizenship. Yet, plainly the social bases of equal citizenship consist of more than a decent minimum of food, shelter, and other material needs. They also demand a right to earn a livelihood through decent work; they require an opportunity to contribute in some recognized fash- ion to the social enterprise as well as to civic and political life. This broader view of the material dimensions of constitutional equality has a better mooring in the empirical literature that treats the social and economic underpinnings of self-respect151 and mutual respect152 among women and men in today’s America and a better mooring in our constitutional history. (B) JUSTICIABILITY — A CONCERN FOR JUDICIAL COMPETENCE AND LEGITIMACY The family resemblance we found between Rawls and earlier proponents of social citizenship is one that critics like Sandel studiously smudge over, in order to claim that Rawls has aban- doned the ‘formative’ project of developing good citizens.153 Michelman is as careful and gen- erous a reader as dwells in the republic of letters; he does not smudge over these aspects of Rawls’s political economy, but openly puts them aside to carry on with ‘minimum protection’ and constitutional welfare rights. Probably Michelman would have invoked justiciability as rea- son enough to have put other social citizenship norms to one side, both in reading Rawls and in his own constitutional theorizing. ‘Justiciability,’ indeed, was Michelman’s reason for seek- ing insurance rights, even though he conceded that it was ‘easier and more natural to find in Rawls [a right to a] guaranteed money income’154 or, more generally, a ‘right[] against exces- sive or unnecessary inequality of wealth or income.’155 Justiciability has two dimensions here. Frank Michelman on Social Rights 93 151 See eg WJ Wilson When Work Disappears: The World of the New Urban Poor (1996); AH Goldsmith et al ‘The Psychological Impact of Unemployment and Joblessness’ (1996) 25 J Socio-Eco 333; A Sen The Penalties of Unemployment (Banca D’Italia Working Paper No 307 1997). 152 Of course, complex patterns of respect, deference, and degradation form around class and occupational hierar- chies, but all the empirical literature suggests that the most salient border between minimum respect and degra- dation in today’s class structure falls along the line between those who are recognized by organized society as working and providing a decent living for themselves and their families, and those men and women at the bot- tom of the nation’s class hierarchy who are not. See eg JF Handler & Y Hasenfeld We the Poor People: Work, Poverty, and Welfare (1997); KS Newman, No Shame in My Game: The Working Poor in the Inner City (1999). On the experience of women in regard to the identities of housewife and ‘[waged] working woman’ and the dilemmas of self-respect and social recognition as a full and equal member of American society, see V Schultz ‘Life’s Work’ (2000) 100 Col LR 1881 at 1883 (arguing that for women, no less than men, the right to par- ticipate in decent work is indispensable to equal citizenship; canvassing empirical literature showing that ‘a robust conception of equality [for women] can be best achieved through paid work, rather than despite it.’). 153 MJ Sandel Democracy’s Discontent: America in Search of a Public Philosophy 6 (1996); see MJ Sandel Liberalism and the Limits of Justice (1982); Rawls (note 8 above) at 259 (noting that not only their capac- ity for self-respect but more broadly ‘the sort of persons [citizens] want to be as well as the sort of persons they are’ are shaped by the political economy they live under). 154 Michelman (note 96 above) at 966. 155 Idem. 9 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E The first concerns institutional capacity, or ‘judicial competence’ in legal process-ese. The sec- ond concerns the degree to which a given norm is formally law-like, determinate, and objective in its application. This dimension of justiciability obtains whether the setting is the courtroom, the legislature, or the constitutional convention, when ‘constitutional amendment is the chosen avenue of reform.’156 In any of these fora, one must be concerned that the norms one is craft- ing or deriving from more general constitutional texts are such norms about which one can say with some measure of certainty that this constitutional requirement has or has not been or is or is not in the process of being met. Begin with judicial competence. Here, surely the starting point must be ‘compared to what?’ Is a right to decent work any more beyond judicial capacities or more insulting to separation of powers constraints than the rights to welfare, health care, and decent housing with which Michelman conjures? With the former as with the latter, a number of competency and separa- tion of powers concerns arise, and a variety of judicial strategies are open. The concerns and the strategies are familiar, and Michelman briefly surveys several.157 ‘[P]erplexing questions of economic feasibility’158 may arise; a decree fulfilling a ‘claimed housing [or employment] right [might] leav[e] the bottom worse off, on the whole, than it now is.’159 But, says Michelman, such questions ‘do not seem different in essence from other issues that courts have deemed judicially triable.’160 And in respect of housing and school finance, as well as other social citizenly matters, judicial experience has grown since 1973, particularly if one takes account of developments abroad and in America’s state courts.161 Courts have found credible ways to assess claims of glaring failure on the part of national and subnational governments to address and meet guarantees of social rights. But it must be admitted that this body of constitutional (as distinct from statutory-interpretive) judicial experience has not addressed work and employment; and certainly, it is plausible that the many-sided determinants of the availability of decent work might counsel against a judicial role in interpreting and enforcing this as opposed to other social rights. I want to leave this possibility hanging, to be revisited when more of Michelman’s and my own thoughts about judicial and non-judicial interpretation and enforcement of social rights are on the table. ‘More plausible’ than the argument for adjudicative incompetence, notes Michelman, ‘is the notion of remedial incompetence.’162 Courts have no way of enforcing social rights without the raising and appropriating of public funds and the creation of new administrative structures. Such actions are not only under the control of the other branches, but also ‘involve[] a complex of subsidiary but vitally important choices which the judiciary lacks all basis for making.’163 156 Idem at 967. 157 See idem at 1004-10. 158 Idem at 1006. 159 Michelman (note 96 above) at 1006. 160 Idem. 161 Fior a chastened but positive assessment of judicial contributions in the education financing arena, see M Minow ‘Just Education: An Essay for Frank Michelman’ (2004) 39 Tulsa LR 547. On the South African Constitutional Court’s interventions in the domain of housing, see Michelman ‘Constitution and Social Rights’ (note 9 above) at 17-18, 26-27. Most strikingly, perhaps, has been the work of German constitu- tional courts, at both the national and subnational levels, in respect of constitutional rights to housing and to a decent livelihood. See PE Quint ‘The Constitutional Guarantees of Social Welfare in the Process of German Unification’ (1999) 47 Am J Comp L 303. For a general discussion of constitutional adjudicato- ry experience with social rights, see C Fabre Social Rights under the Constitution: Government and the Decent Life (2000) 152-81. 162 Michelman (note 96 above) at 1006. 163 Idem. One response to this problem is ‘a judicial mandate to legislative, executive, or administrative officers to prepare, submit, and carry out a corrective plan.’164 Separation of powers presents a different order of concern. Here, Rawlsian principles, on Michelman’s account, may collide. Judicial vindication of substantive welfare rights may come at too high a cost ‘in participatory inequality [as between the judiciary’s and the citizenry’s respective roles in identifying the social rights to which a society’s shared principles of justice commit it] which damages [the citizen’s] self-respect.’165 The trade-off between ‘justice in par- ticipatory rights and justice in substantive rights,’166 may demand judicial forbearance. Or at least, it may demand that courts ‘not cut welfare rights out of the whole cloth of speculative moral theory.’167 Likewise, I’d add, for the same reason, courts ought to forebear from cutting social citizenship rights out of the whole cloth of interpretative recollection of extra-judicial constitutional tradition. But such judgments do not exhaust the question of whether judges should ever allow such a theory to inform their application of ‘due process and equal protection guaranties in their formal and non-substantive aspects’168 to statutory materials. Here Michelman takes inspi- ration from the lower federal courts’ pre-Dandridge readiness to find in equal protection a command to invalidate even seemingly plausible classifications among potential eligibles169 and generally to put the statutory programs’ limitations and qualifications under strain, in the name of making need alone the valid criterion. Too, he finds in cases like King v Smith studies of how courts can find in AFDC and kindred legislation statutory rights that amounted to ‘justice-inspired [legislative] supplementation of the constitutional cata- logue.’170 Certainly, this is a credible way to interpret the Court’s reading of Congress’s intent against the grain of legislative history and of Congress’s knowing acquiescence in state practices the Court went on to condemn. Unprepared to declare the existence of such a constitutional right (and so openly and irrevocably to constrain Congress), the Court nonetheless was prepared to expand and deepen the limited and qualified commitments Congress had made. Not only is this a plausible reconstruction of the interaction between Court and Congress, but it is suggestive of how a judiciary mindful of the constitutional dimensions of work and par- ticipation could read statutory material in the area of labor and employment.171 In the case of statutory work and employment rights, however, a court would not need to rely on ‘enlight- ened,’ emergent, contemporary notions of democracy and justice. Nudging state or federal agencies to construe their congressional mandates in ways that leaned toward inclusion or actu- al availability of work opportunities, courts could proceed in a somewhat more conservative interpretative style, relying on old, not emerging or ‘enlightened’ elite understandings of equal rights and constitutional equality. Frank Michelman on Social Rights 95 164 Idem. 165 Idem at 1010. 166 Idem. 167 Michelman (note 96 above) at 1010. 168 Idem. 169 See idem at 1011-12. 170 Idem at 1011. 171 For a like-minded account of possible readings of the Wagner Act see M Barenberg ‘Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production’ (1994) 94 Col LR 753. 9 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E (C) JUSTICIABILITY AND PROBLEMS OF INDETERMINACY AND OF CONSTRAINTS ON DEMOCRACY IN PUBLIC POLITICAL FORA ‘In Search of Constitutional Welfare Rights’ holds that welfare rights are the best vocabulary for expressing a constitutional commitment to a social minimum, partly by dint of their sup- posedly greater crispness and formal, determinate applicability. Donning the hat of counselor to hypothetical constitution-framers, Michelman says this: If you want to lay a basis for ‘con- vincing [constitutional] advocacy in political forums,’172 then state your commitment to a social minimum in the form of ‘insurance rights.’173 To rely on a more Rawlsian vocabulary ‘would [fail to] give … advocates any special foothold for challenging legislative judgments.’174 Of course, here Michelman is comparing insurance rights to Rawls’s difference principle. The comparison that interests us, however, is a different one. Is the legal-rhetorical foothold supplied by a right to decent housing any more secure from contending interpretations than that provided by a right to decent work? We need not belabor the point. Michelman concedes it in a recent engagement with the arguments I am raising here. ‘If we … compare a social-citizenship conception with a welfare-right conception of a pos- itive constitutional guarantee in the economic sphere, we can see that neither sort of concep- tion trumps the other on the scale of justiciability.’175 Indeed, the examples Michelman choos- es are those we’ve been employing. He points to the welfare right found in the present South African Constitution, ‘to have access to adequate housing,’ a welfare right whose ‘progressive realization’ the state must take ‘reasonable’ steps ‘to achieve.’176 And he asks whether such a right registers any higher on the scale of justiciability ‘than would a declared duty of the state to do the best it can to maintain an economy and society in which everyone who wants it has access to respectable, fulfilling, adequately remunerated work.’177 The answer, he concedes, is no.178 If the welfare-right conception has an edge in respect of ‘concerns about constitutional-legal form,’179 it is on the scale of what Michelman now calls ‘narrowness.’180 This is a concern dis- tinct from justiciability. It does not concern courts’ remedial competence or democratic deficits, nor whether a given norm is too general and wide-open-to-competing-interpretations. Rather, it concerns how widely or narrowly a norm ‘preempt[s] major public policy choices from the ordinary politics of democratic debate and decision.’181 More than a welfare right, ‘a constitu- tional social-citizenship right … reach[es] in a hundred directions … into the deepest redoubts of the common law and the most basic choices of political economy a modern society can make.’182 Certainly, if my historical scholarship is right about the way these rights have figured in pub- lic political discourse and debate about everything from currency to education to industrial 172 Michelman (note 96 above) at 1002. 173 Idem. 174 Idem at 1003. 175 See Michelman ‘Democracy-Based Resistance’ (note 9 above) at 1896. 176 Idem. 177 Idem. 178 See idem. 179 Idem at 1895. 180 See Michelman ‘Democracy-Based Resistance’ (note 9 above) at 1895-96. 181 Idem at 1895. 182 Idem at 1897. organization, then Michelman is right. And note: Michelman’s point pertains independently of the scope of judicial enforceability, as long as we presume our public officials to be conscien- tious. Here, Michelman’s thinking merges with the social citizenship tradition’s conception of how its norms would bear on democratic lawmaking—not via judicial review, but instead by directly constraining participants and the standards they apply and the arguments they offer in debates and decisions about public policy-making. Over against the charge of non- ’narrowness’ or democracy-stymieing, Michelman offers a defense on behalf of social citi- zenship norms. It is precisely the ‘blatant “non-justiciability” of a social-citizenship right its utter lack of mechanical applicability to any hard or contested question of public policy … [that] saves it from charges of contrariety to democracy.’183 Instead of thwarting democra- cy, social citizenship norms would mark a ‘gain for democracy … [by] impos[ing] a certain constraint on how citizens and their elected representatives would frame and approach sundry questions of public policy.’184 That is, the norms would demand of all concerned an ‘exercise[] of … judgment … [about] which choice will best conduce to the social citizen- ship of everyone.’185 By invoking Michelman present to respond to Michelman past, we have strayed from Michel- man on Rawls and welfare rights in 1973. The burden of this foray into the present has been to suggest that Michelman’s insistence on the justiciability of social and economic rights in non- judicial fora was a product of the politics and doctrine of the day. Today, doctrine and politics afford neither the same possibilities nor their concomitant constraints, and we do better to pur- sue the path of social citizenship down which Rawls and our home-grown ideals of social citi- zenship direct us. Or as Michelman observes in reference to a fuller version of the criticisms lev- eled here, if we count ourselves among those who ‘maintain that constitutional law outside the courts can figure importantly in the conduct of public affairs [and] that contention outside the courts over constitutional-legal meanings and obligations very possibly can be … a site for democracy in action,’186 then should we not put justiciability issues aside, and ask: ‘Is there any reason why we who take this view should hesitate to embrace a social-citizenship conception of constitutional social rights, in preference to a welfare-right conception, assuming we find the former to be morally the more appealing conception?’187 There is more to say about the interaction of social-citizenship norms and democratic politics and lawmaking, and more of Michelman’s insights and qualms to consider. We may yet conclude that a sparer set of social rights, a set of social minima, ought to enjoy constitutional pride of place, over against the broader, more historically rooted, and, perhaps, ‘morally … more appeal- ing’ social-citizenship conception that I have put forward. We may yet conclude that judicial safe- guards should obtain for essential welfare rights but not for the social citizenship principle. And we may find ourselves, with Michelman, in the grip of genuine dilemmas. But further consider- ation should await a reading of Michelman’s republican case for welfare rights. This brings us to his turn to history, and his thoughtful reading of Progressive constitutionalism. Frank Michelman on Social Rights 97 183 Idem at 1898. 184 Idem. 185 Michelman ‘Democracy-Based Resistance’ (note 9 above) at 1898 (emphasis omitted). 186 Michelman ‘Constitution and Social Rights’ (note 9 above) at 28. 187 Idem at 28-29. 9 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E V Michelman’s Republican Case for Welfare Rights (A) THE DISTRIBUTIVE DIMENSION OF CONSTITUTIONAL PROPERTY RIGHTS AND THE PROBLEM OF LEGAL FORM By the late 1970s, the Court had begun to cut the solicitous strands of doctrine well short of substantive welfare rights, declaring ever more categorically that its Constitution confers ‘no affirmative right to governmental aid, even where such aid may be necessary to secure life, lib- erty, or property … .’188 Liberal constitutional scholarship grew more theoretical as the Court grew more conservative. Theorists acknowledged the limits of judicial competence and legiti- macy in the area of affirmative rights. They began to reflect on the ‘gap between the reach of constitutional case law and the reach of the Constitution.’189 They built up more general, less court-centered accounts of constitutional democracy as a system of self-government. For his part, Michelman made civic republicanism and contemporary pragmatism and criti- cal theory his own, and brought them into an internal dialogue with liberal constitutional the- ory. Out of this emerged a profound series of reflections on the dilemmas of constitutional self- government, the tensions between popular sovereignty and the rule of law, the nature of adju- dication, and, most germane here, the ‘possessive’ and ‘distributive’ conceptions of constitu- tional property rights.190 Written in 1986, Michelman’s exploration of the tensions between these two kinds of property norms sets out to reconstruct the republican logic and history of the distributive side of constitutional property claims, to suggest why this side has been the recessive one in constitutional law, and to join issue with those, like Michael Walzer, who object for staunchly democratic reasons to the constitutionalization of ‘welfare claims as rights.’191 Michelman seized hold of the founders’ venerable republican conviction that ‘security of proper- ty holdings was [not just a matter of] private self-interest’;192 it was ‘of general political concern.’193 Material independence was ‘viewed as indispensable if one’s independence and competence as a par- ticipant in public affairs was to be guaranteed.’194 This maxim had obvious bearing on the anti- redistributive, property-protecting provisions in the founders’ Constitution; but it also implied a dis- tributive imperative. This imperative, too, found support in much that the founders wrote and did. But it found no obvious expression in the provisions and architecture of their Constitution. The dis- tributive norm was deferred, Michelman suggests. Given the prospect of westward expansion, the founding generation could envision ‘a freehold beneath every household … supporting the free- holder’s independence.’195 As long as this state of affairs continued, the Constitution’s possessive regard for property was sufficient to answer the founders’ distributive concerns. 188 DeShaney v Winnebago City Dept of Social Services 489 US at 196. 189 See LG Sager ‘Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law’ (1993) 88 Nw U LR 410 at 419. 190 See eg FI Michelman ‘Conceptions of Democracy in American Constitutional Argument: Voting Rights’ (1989) 41 Fla LR 443; FI Michelman ‘Law’s Republic’ (1988) 97 Yale LJ 1493; FI Michelman ‘‘Possession vs. Distribution’ in the Constitutional Idea of Property’ (1987) 72 Iowa LR 1319 [hereinafter Michelman ‘Possession vs. Distribution’]; FI Michelman ‘Foreword: Traces of Self-Government’ (1986) 100 Harv LR 4; Radin & Michelman (note 12 above). 191 Michelman ‘Possession vs. Distribution’ (note 190 above) at 1320-21. The essay by Michael Walzer which Michelman addresses is M Walzer ‘Philosophy and Democracy’ (1981) 9 Pol Theory 379. 192 Michelman ‘Possession vs. Distribution’ (note 190 above) at 1329. 193 Idem (emphasis omitted). 194 Idem at 1329. 195 Idem at 1332. By the end of the nineteenth century, however, a ‘Progressive critique’ of this constitutional arrangement had emerged. With the rise of industrial capitalism, a regime of anti-redistributive property rights – so the critique ran – might itself ‘constitute undemocratic relationships of power and subjection.’196 On this account, persons—wage earners, tenant farmers, and others ’subject- ed to the proprietary power of others lacked … the material foundations of independent political competence.’197 In short, with the rise of large-scale corporate enterprise and its impact on the legal-political-intellectual culture of the late nineteenth century, the distributive and anti-redis- tributive sides of our tradition’s constitutional understanding of property claims were set on a col- lision course. Once it was firmly recognized that ‘uncontrolled so-called private power’198 expos- es individuals to subjection, it behooved government to act. ‘Logically, however, the state cannot offer protection … by the same formal law that would protect absolutely against redistributive political “interventions.”’199 Accordingly, while the Progressive critique largely succeeded in undoing the regime of anti-redistributive property norms, it did not succeed, on Michelman’s account, in supplanting those norms with distributive ones. Indeed, Michelman implies that the Progressive reformers never sought to embed such distributive norms into constitutional dis- course. They hardly could have hoped to do so, it appears in his view, since distributive norms, whatever their claim to constitutional status, seem to place an unbearable burden on our com- mitment to formally realizable, objective, ‘law’-like standards as the sole, legitimate lingua franca in the province and discourse of the Constitution.200 As you might guess, I am on all fours with Michelman and he with me all the way to the last point. There, as an historical and interpretative matter, we seem to part ways in modest degree; for I read the Progressives, and their forebears and descendants, stretching from the 1880s to the 1940s generations of reformers which, following Michelman, for present purposes, I’ll sim- ply call Progressives somewhat differently. As I’ve encountered them in years of reading, these generations of Progressives found no insoluble tension inherent in the effort to ‘cast substan- tively appealing and defensible distributive norms’201 as constitutional standards. They did not neglect ‘the classical negative understanding of fundamental rights’202 (in the thick of Lochnerism, how could they?), nor the appeal that understanding made to a deep-seated image of constitutional norms as ‘strongly objective’ abstract, simple, formal and, thereby, law-like. But they treated the grip of these ideas on ‘the American constitutional imagination’203 as con- tingent and contestable via tools Michelman knows well: pragmatism, context, a ‘changing Constitution.’ Thus, as I’ve shown elsewhere in needlepoint detail, their view was this: the need to make the constitutional tradition’s distributive imperatives into direct claims against the state did not compel divorcing constitutional from political economic discourse; it did demand dethroning the courts and installing Congress and the ‘active branches’ as the nation’s new ‘constitutional political economists.’204 In tandem with this reallocation of interpretive authority, I’ve shown how Progressives set Frank Michelman on Social Rights 99 196 Idem at 1335. 197 Michelman ‘Possession vs. Distribution’ (note 190 above) at 1335. 198 Idem. 199 Idem at 1336. 200 Idem at 1337. 201 Idem at 1321. 202 Michelman ‘Possession vs. Distribution’ (note 190 above) at 1321 (quoting DP Currie ‘Positive and Negative Constitutional Rights’ (1986) 53 U Chi LR 864 at 889) (internal quotations omitted). 203 Idem. 204 See Forbath ‘Caste, Class, and Equal Citizenship’ (note 7 above) at 51-57. 1 0 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E about the hermeneutic task of translating ‘the “old and sacred possessive [common-law based and anti-redistributive] rights” of property and labor’205 into new ‘social and economic rights,’ to enable ‘“a return to values lost in the course of … economic development” and “a recovery” of the “old rights” once robust social meaning.’206 The ‘active branches’ and the citizenry itself, so Progressives and, later, New Dealers contended, were better suited to the task of interpret- ing and applying the new ‘social meaning’ of constitutional property norms in part for the kinds of justiciability reasons Michelman highlights, but also because they sought to advance a more dialogic and democratic mode of constitutional interpretation and decisionmaking. Interestingly, if I am right about this history, I do no more than provide an ancestry for the revisionist aspect of Michelman’s argument about the forms of constitutional law and demo- cratic politics.207 Michelman’s urging is this: If we can but relax the hold of our inherited ideal of legality in favor of a revised and more pragmatic one, then we might open the space for a fuller consideration of ‘distributive property claims … [in] the province[] and discourse[] of constitutional law.’208 (B) REPUBLICANISM VS WELFARE RIGHTS Perhaps because his attention rests so largely upon the seeming tension between distributive norms and ‘legal’ ones, and perhaps because his proof text is Walzer’s critique of the idea of constitutional legalization of welfare rights, the latter remains Michelman’s only specification of what a modern distributive constitutional property claim deserving of our more ample con- sideration might be. As a result, another, perhaps equally deep, tension goes unexplored. That is the tension between the modern welfare rights claim and the republican underpinning Michelman claims for it. Republican maxims hold that a measure of material independence is a necessary basis for polit- ical competence and standing. That is Michelman’s normative baseline. But in the republican out- look he invokes, such citizenly standing and competence have always been bound up with the sta- tus of one who fulfills some recognized, responsible role in the social enterprise – one who ‘earns’ her measure of material security and ‘independence.’209 We certainly may find, as far back as the seventeenth and eighteenth centuries, support in both ‘liberal’ and ‘republican’ texts for the view 205 Idem at 69 (quoting FD Roosevelt ‘Message to Congress Reviewing the Broad Objectives and Accomplishments of the Administration (June 8 1934)’ in The Public Papers and Addresses of Franklin D Roosevelt (1938) 291-92). 206 Idem (quoting same) (internal quotations omitted). Nor were these reform thinkers unmindful of the prob- lem Michelman identifies of mediating between distributive and possessive property claims. See Michelman ‘Possession vs. Distribution’ (note 190 above) at 1321. Progressive reformers like Brandeis and Commons devoted vast attention to reconciling the various possessive property claims of employers with such social rights as minimum livelihoods and unemployment insurance and with the claims of employees, as of right, to a voice in the governance of the enterprise. It is true, though, that their efforts at reconciliation, while principled, did not take the form of ‘strongly objective standards’ but were rather more contextual and pragmatic. See eg JR Commons Legal Foundations of Capitalism (1924). 207 Ancestors who were, at least until World War I, largely blind to what we now know—and what post-war Progressives began to surmise—about the democratic resources in rights, ‘higher law,’ and judicial authority. 208 Michelman ‘Possession vs. Distribution’ (note 190 above) at 1324. 209 See WE Forbath ‘The Ambiguities of Free Labor: Labor and the Law in the Gilded Age’ (1985) Wis LR 767 (tracing this theme in republican discourse of political and legal elites and labor reformers in US from 1780s to 1880s); Forbath ‘Caste, Class, and Equal Citizenship’ (note 7 above) at 13-15, 18-19) 26-51 (same, adding inflections of theme in women’s, African American, and agrarian movements, and carrying forward into 1890s-1930s). that the poor have a subsistence claim on society’s resources. In truth, that claim was well-defend- ed by Locke; it is there, too, in the writings of Adam Smith.210 But that is a far cry from making this longstanding claim a basis for citizenship in the sense of full membership in the political com- munity. Neither Locke, nor Smith, nor Madison and Jefferson in the ‘republican’ texts Michelman relies on,211 nor later renderings of liberalism and republicanism, up to and including Professors Rawls and Sandel – none of these lend support to the idea of making public assistance simpliciter the material base of citizenship. That base, that dignifying social minimum, must rest on some socially recognized contribution on a person’s part to the common enterprise. VI Welfare vs Social Citizenship Rights (A) THUS FAR: THE SOCIAL-CITIZENSHIP CONCEPTION IS THE BETTER ONE This broader, more participatory conception of social citizenship may not be necessary in every lib- eral democratic society today to assure a person’s standing as an ‘equal participant in public affairs.’ But to use a phrase with which Michelman recently has conjured, this account seems firmly embed- ded in America’s ‘constitutional identity.’212 The longstanding links between work, equal respect, and citizenship seem constitutive of ‘who we think we are and aim to be as a politically constitut- ed people, [of] where we think we have come from and where we think we are headed.’213 The idea that welfare rights fit well with either a liberal or a republican understanding of the material bases of equal citizenship was first forged in the context of the welfare rights movement, as a scholar’s contribution to that inspiring struggle. But the movement, like any social movement of subordinate people, was sharply constrained. It played the hand that history and the White House dealt it. Its programmatic vision, its strategy and goals, all were shaped by the social provi- sion and institutional resources at hand to address black poverty AFDC, LSO, and the Community Action Agencies. But nothing about this conjuncture gave any assurance that welfare rights were the right solution to the problem of social and economic exclusion confronting poor black citizens. Black leaders like King and Rustin plainly thought otherwise; they called for a ‘Negroes’ New Deal’ that emphasized decent work. As a normative matter, and as a constitutional one, I have suggest- ed, they were right. Frank Michelman on Social Rights 101 210 Regarding Locke, see eg, J Locke Two Treatises of Government 170 (1960) (poor man has a right to ‘Title to so much out of another’s Plenty as will keep him from extreme want’); TA Horne Property Rights and Poverty: Political Argument in Britain, 1605-1834 (1990) at 48-65; and R Ashcraft ‘Liberalism and the Problem of Poverty’ (1992) 6 Crit Rev 493 at 497 (demonstrating that Locke and classical liberalism emphasize natural right to subsistence; they see ‘poor relief [as a] constitutive and necessary feature of any legitimate society’). Regarding Smith, see eg A Smith An Inquiry into the Nature and Causes of the Wealth of Nations (1950) 80 (‘No society can surely be flourishing … of which the far greater part of the members are poor and miserable.’); I Hont & M Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (1983) 1 (identifying meeting needs of poor as Smith’s theoretical axis for assessing political-economic arrangements). 211 For a Madison or Jefferson, poor relief left paupers still ‘dependent’ and, therefore, unqualified for citizen- ship. They favored ample material opportunities (they even occasionally championed rights to property in ‘full and absolute dominion’) for all white men willing and able to exploit them, and charity or coercion for the rest. See Forbath ‘Caste, Class, and Equal Citizenship’ (note 7 above) at 13-14 (discussing and quot- ing from the Madison and Jefferson texts relied on by Michelman and other ‘Constitutional Welfare Rights’ defenders like Sunstein). 212 See FI Michelman ‘Morality, Identity and ‘Constitutional Patriotism’’ (1999) 76 Denv U LR 1009 at 1025. 213 Idem. 1 0 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E The vision of citizenship fashioned by the welfare rights movement also was shaped by the fact that the movement’s constituents were women and mothers. King and Rustin had nothing to say about this fact, and precious little to say about gender equality in general. But everything we know about welfare and work suggests that generous and guaranteed welfare provision – however morally imperative it may be – cannot do the main work of securing gender equality for poor women. That also demands reconstructing the low wage labor market, striving to assure decent jobs for women, no less than men, and providing enabling rights, as well, to train- ing and child care and old-age pensions, as well as provision and incentives that enable and encourage equitable sharing of dependent-care. A liberal society that prizes the dignity of the individual, if it is an affluent one that can afford a guaranteed income that protects all against desperate want, must do so. To refuse is, in Rawls’s terms, to put an unbearable and unjust strain on individuals’ commitments to the social compact. But that is not enough. Equal citizenship also requires social citizenship. Or, as Michelman most recently put the claim on our joint behalf: [We cannot] call on everyone … to submit their fates to a democratic-majoritarian lawmaking system, without also committing our society, from the start, to run itself in ways designed to constitute and sustain every person as a competent and respect- ed contributor to political exchange and contestation and furthermore to social and economic life at large.214 Once one embraces the view that the Constitution must vouchsafe the minimum social conditions of democratic lawmaking, one cannot leave the question of social citizenship where Michelman first left it in his Rawlsian and republican arguments. One cannot leave the work- and economic- independence-and-participation-related aspects of social citizenship to the give and take of ordi- nary politics. Specification of what counts as decent work or recognized but non-waged contri- bution (such as child- or elder-care), and how, at a particular time, the nation ought to go about assuring such opportunities to all, of what counts as a decent livelihood at said time, of what counts as incapacity, and of what quantum of income should separate those, not incapacitated, who avail themselves of ‘welfare’ or a guaranteed income versus those who ‘work’ all these issues and more may and, practically, must be addressed through political and market processes. But if social citizenship guarantees are prerequisites to political equality, then, at the most general level, these commitments must precede ordinary politics; otherwise, a broad swathe of the citizenry would be denied as today they are denied a constitutionally fair opportunity to act as citizen-par- ticipants in the very debates and decisionmaking upon which their citizenly standing depends. As I’ve noted, Michelman, in his most recent work on constitutional social rights, seems to sign on to the ‘Forbath-style constitutional guarantee of social citizenship.’215 In that work, he rehearses the justiciability issues, which had preoccupied him in his first, 1973, engagement with Rawls. These problems of ‘judicial role and competence’ he says, should be the ‘least of our concerns.’216 ‘Judges who know their business … can find both properly adjudicative standards for testing claims of social-rights violations and worthwhile, properly judicial remedies for violations when found.’217 214 Michelman ‘Constitution and Social Rights’ (note 9 above) at 25. 215 Idem at 27; see idem at 29 fn 61 (noting the ‘persuasive case for the moral superiority of the social-citi- zenship conception’). 216 Idem at 13. 217 Idem at 15 (footnote omitted). Courts, therefore, ‘exercising constitutional review in entirely convention- (B) A NEW DILEMMA: DOES THE SOCIAL CITIZENSHIP CONCEPTION REQUIRE ABANDONING JUSTICIABILITY? More troubling than justiciability, Michelman argues, are two other sorts of objections. One is the problem of constraining democratic decision-making, which we’ve already glimpsed; the other objection goes to the ‘non-transparency’ or lack of ‘ascertainability’ of the social citizen- ship guarantee. For a constitutional order to be legitimate, all its core commitments must be such that citizens can see or ascertain that their ‘fellow citizens and their government [are] real- ly complying with [them].’218 Without this quality of ‘transparency’ or ‘ascertainability,’ how could one expect a reasonable citizen reasonably to assent to the constitutional order? The dilemma with the social citizenship guarantee, then, is that it is (a) a prerequisite for a legiti- mate liberal democratic constitution,219 yet, at the same time, (b) deeply problematic in virtue of its ‘raging indeterminacy’ and the fact that, therefore, ‘it will almost always be impossible for anyone to say decisively whether [that guarantee] is or is not being pursued in earnest.’220 In other words, the social citizenship requirement seems to land its proponents in contradiction. The constitutional regime is not legitimate if it does not include the guarantee; but it also is not legitimate if any of its basic guarantees are ‘such that citizens cannot judge whether those guar- antees in fact are being kept, or at least at all times being pursued in good faith.’221 At the end of the day, however, Michelman puts both of these ‘deeper objections’ to the social citizenship guarantee to rest; and he does so through the same device. ‘Rawlsian thought,’ he suggests, ‘offers a way out of this bind’:222 loosening the constitutional requirements of social citizenship from ‘rights’ to ‘directive principles’223 (as that phrase is used in several of the world’s constitutions to denote judicially non-cognizable but nevertheless basic and binding commitments224), or what Rawls would call ‘a constraint on public reason.’225 The upshot is Frank Michelman on Social Rights 103 al, nonworrisome ways almost certainly can play a useful role in the promotion of the distributive aims of social rights guarantees.’ Michelman ‘Constitution and Social Rights’ (note 9 above) at 15. 218 Idem at 31. 219 Idem at 26, 30, 32. 220 Idem at 30. Thus, suppose that ‘effective social citizenship on fair terms for all who seek it’ is, indeed, among the principles to which the government must ‘visibly be committed … in order that the total gover- nance system may be one that meets the … standard’ of constitutional legitimacy – see idem and suppose that lawmakers this year have replaced welfare with workfare, increased by one half the budget allocation for job training, reduced the minimum wage by one-third, extended the collective bargaining laws to cover employers of as few as ten workers, abolished rent control, budgeted an annual sum of 30 billion crowns for housing allowances and job training, increased income tax rates by five percent, reduced the prime lend- ing rate by two percentage points, doubled the size of the employment discrimination mediation corps, and approved a new tariff schedule somewhat less protective than its predecessor, in exchange for reciprocal concessions from abroad. Michelman ‘Constitution and Social Rights’ (note 9 above) at 30-31. Is the gov- ernment complying with the constitutional guarantee of social citizenship? ‘Raging indeterminacy of this sort seems to disqualify a clause like [the social citizenship guarantee] from figuring as a required compo- nent in a complete and legitimating constitutional agreement’: idem at 31. 221 Idem at 32. 222 Idem. 223 Idem. 224 Thus, for example, the Irish Constitution and the Indian Constitution (following the Irish model) both con- tain a list of social rights in a part headed ‘Directive Principles of Social Policy.’ Its opening paragraph states: ‘The principles of social policy set forth in this Article are intended for the general guidance of the [Parliament]. The application of those principles … shall not be cognisable by any Court under any of the provisions of this Constitution’: Art 45, Constitution of Ireland, 1937. 225 Michelman ‘Constitution and Social Rights’ (note 9 above) at 32 fn 65 (quoting and citing Rawls (note 133 at 216-20, 223-27) (internal quotations omitted). 1 0 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E a constitutional order in which ‘the basic negative liberties freedoms of conscience and expres- sion, for example’226 require ‘fully firm, strict, and reliable substantive guarantees of compli- ance,’227 while ‘the rest of social citizenship’228 stands as a requirement that every lawmaker ‘and indeed every voter stands ready … to explain and defend all their votes, on matters affect- ing the structural conditions of social citizenship, as expressions of their honest best judgments about which choice is most conducive to assurance of social citizenship for all … .’229 The dis- tinction Michelman draws between ‘the basic negative liberties’ and ‘the rest of social citizen- ship’ makes plain that by ‘the rest of social citizenship’ he here means not only the right to decent work or other rights we have labeled participatory, but rather all affirmative social rights including ‘welfare’ rights.230 This shift from rights to directive principles seems to put Michelman’s answers to his three objections in conflict with one another. Michelman’s answer to the judicial overreaching objec- tion is to underscore that courts can play a modest but valuable role in securing social rights, while abiding by more or less determinate, law-like standards for testing rights claims and ordi- nary views about the boundaries of courts’ institutional competence and authority. Michelman’s answer to the democracy- and transparency-based objections is to propose mak- ing social rights into not-rights-but-directive-principles fit not for courts, but for citizens and lawmakers in view of their ‘raging indeterminacy,’ and in virtue of the modest but valuable role that constitutional directive principles can play as ‘constraints on’ or ‘inflections of’ public rea- son and deliberation. In other words, Michelman seems to be ascribing a contradictory nature to the social citizen- ship guarantee. If the guarantee, conceived as ‘a right or set of rights,’ is ‘such that citizens can- not judge whether [they] in fact are being kept,’ then one is hard-pressed to imagine how such ‘a right or set of rights’ could yield judges ‘properly adjudicative standards for testing claims of social-rights violations and worthwhile, properly judicial remedies for violations when found.’ (C) ‘RAGING INDETERMINACY’?: NORMATIVE AND PRACTICAL BASES FOR SORTING SOCIAL CITIZENSHIP INTO RIGHTS AND DIRECTIVE PRINCIPLES There are various possible ways out of this contradiction; the best route may be this. Perhaps, in the absence of statutory specification, some social citizenship norms are and others are not reasonably well-suited for courts to help enforce. This, we saw, was Michelman’s view back in 1973, when he contrasted Rawls’s difference principle, as an equality guarantee, to welfare rights to food, shelter, health care, and education. The latter lent themselves to a measure of judicial enforceability; the former did not. Of late, however, Michelman has embraced enlarg- ing the circle of social rights to include, for example, decent work; and this may have con- tributed to inclining him to the view that judgments about the ‘progressive realization’ or ‘good faith pursuit’ of any and all social rights are imbued with so many controvertible policy choic- es and trade-offs that they ought properly be made by the polity and not the courts. 226 Idem at 32. 227 Idem. 228 Idem. 229 Idem. 230 See Michelman ‘Constitution and Social Rights’ (note 9 above) at 33 (contrasting ‘formal, legal guarantees of … the core, basic negative liberties’ with ‘confidence that public reason … prevails in public decision- making over matters affecting … social citizenship’). But transmuting social rights into judicially non-cognizable directive principles comes at an obvious price; for as Michelman recognizes, courts can play a useful role in promoting (at least some elements of) social citizenship. So, it is worth asking whether there is a case for sorting out social citizenship guarantees into sub-categories of rights and directive principles. With the mediating idea of directive principles in hand, we will not be drawn, as Michelman was in 1973, to conflate the justiciability of a particular element of social citizenship with an answer to the question whether that element carries important constitutional weight and significance. So, let us return to the comparison and contrast between the ‘welfare right’ to housing or shelter and the ‘social-citizenship right’ to decent work. Along some important dimensions of justiciability, we have noted, neither of these rights trumps the other. We also have seen that the availability of decent work is a state of affairs which may have a uniquely large and disparate set of potential pol- icy levers surrounding it, running to everything from childcare and job training to the prime lending rate, tax and tariff policies, public investments and employment, and beyond. This leads Michelman to query whether anyone, including presumably a court, could ‘say decisively whether [the guaran- tee] is or is not being pursued in earnest.’ But practical complexity is not all that may importantly distinguish the social citizenship guarantee from welfare rights, like the right to housing. Practical complexity is linked to complexities of social meaning and of cultural contention and change. What it means to ensure that no member of the community is homeless or without ade- quate shelter is not self-evident; but the range of plausible meanings is vastly more definite and exigent than what it means to ensure ‘decent work’ for all, or to sustain every member as ‘a com- petent and respected contributor to political[,] … social, and economic life at large.’231 (D) IMAGINING WELFARE RIGHTS AND SOCIAL CITIZENSHIP IN AMERICA IN 2020 Imagine an America in the year 2020 constitutionally committed to welfare rights and likewise committed to guaranteeing social citizenship for all. In that America, if some are homeless, they should be entitled to say that the Constitution requires that government act in some fashion to ensure an increase in the supply of available, affordable housing and to ensure emergency shel- ter in the meantime. But if some are ‘jobless,’ say by dint of a rash of outsourcing of jobs over- seas, ought they be entitled to say that the Constitution requires that government act to increase the supply of full-time jobs? Putting all practical difficulties and impediments aside, there would remain the question whether that response vindicating the asserted entitlement to a new ‘full- time’ job would be the only or the best way to sustain those newly jobless Americans as ‘com- petent and respected contributors’ to social and economic life. Many, I am sure, would think not. Posed with this question and a chance to deliberate about it, many Americans would probably observe that too many people are laboring their lives away, and that the overwork of some contributes to the unemployment and poverty of others. They might contend that a better response to the moral and material injuries of joblessness would include a broader distribution of decent work, combined with a compensating social wage in cash, or in health insurance or other goods, so that more Americans had decent work and more Americans also had more time for family, community, and other things besides earning wages. Thus, as polities, large or small, considered how to make good on the social citizenship guar- antee, there surely would be good faith normative disagreement about striking the balance between (a) the freedom-enhancing virtues of ensuring decent, dignified livelihoods through Frank Michelman on Social Rights 105 231 Idem at 25. 1 0 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E income guarantees and publicly funded social insurance and (b) the ‘participation’ and ‘indi- vidual responsibility’ values served by requiring people to ‘earn’ those livelihoods via, say, a greater emphasis on public investment and job creation. More narrowly, many Americans would hold that some part of the joblessness problem— and the loss of social and self-respect joblessness produces might be better addressed by remu- nerating and dignifying the work of child or elder care than by creating new full-time jobs out- side the home. Some might even suggest incentives to encourage men, in particular, to spend more time in those pursuits, and to see them as a fair avenue for fulfilling a part of their role as ‘respected contributors.’232 Finally, many Americans, as always, would contend that access to education and the wherewithal to pursue it are an essential alternative response to jobless- ness, at least for those who aspire to some kind of work for which their present education level has not outfitted them. And this is just a brief sampling of the kind of normative debate, con- testation and change that we have every reason to expect would attend the process of honor- ing a social citizenship guarantee in the year 2020. So, a crucial difference between welfare rights and the broader right of social citizenship lies not simply along the dimension of practical complexity but also along the intersecting dimen- sion of normative indeterminacy. The normative meaning of the social citizenship guarantee seems properly subject to a level of good faith disagreement, contestation and change that is quite different from welfare rights to food, clothing, shelter, or even education. In an America constituted by both kinds of guarantees, the response to homelessness, and the incapacitation and indignity it threatens, must be some kind of home; but the response to the marginality and exclusion threatened by joblessness may rightly be more open-ended. It properly entails ongo- ing revaluation of what we mean by ‘full time’ and ‘work’ and ‘respected contribution.’ And if that is so, then there is good reason to conceptualize welfare rights as rights, and the social cit- izenship guarantee as a directive principle. Welfare rights are suited, in ways we’ve already canvassed, to some non-trivial measure of judi- cial oversight, even though enforcing them to the hilt is well beyond the courts’ domain. Since they are essential to constituting every American as a free and equal member of the polity, it seems folly to forsake the judiciary’s contribution. The social citizenship guarantee is no less essential, but because of the wide-open practical and normative choices encircling it, that guarantee presents dis- tinct and intractable justiciability problems. It makes sense, therefore, to deem it a directive princi- ple. So, Michelman’s recent reliance on ‘Rawlsian thought’ for the idea of transmuting social rights into directive principles or ‘constraints on public reason’ seems to me half right.233 If instead we 232 For acknowledgement by the present Court of the constitutional stakes in ensuring that men bear an equal share of the work of family care, see Nevada Department of Human Resources v Hibbs 123 S Ct 1972 (2003) (holding that because the unequal distribution of family care between women and men contributes to women’s social and economic inequality, public employment practices that perpetuate this inequality amount to constitutional injuries, which Congress is empowered to redress under the Fourteenth Amendment). 233 I note that Rawls himself, in Political Liberalism, did not draw the category of ‘constitutional essentials’ as narrowly as Michelman seems to suggest. In addition to the basic negative liberties like freedom of con- science, Rawls also holds that ‘a social minimum providing for the basic needs of all citizens’ also belongs in the category of ‘constitutional essentials’ requiring fully firm, strict, and reliable substantive guarantees of compliance. See Rawls (note 133 above) at 228-29 & fn 23 (noting that Rawls finds himself ‘accepting Frank Michelman’s view as stated in “Welfare Rights and Constitutional Democracy”’). Thus, what Rawls leaves out of his category of ‘constitutional essentials’ (and puts into the category of principles that instead must serve as ‘constraints on public reason’) seems closer to what I am suggesting: the difference principle and fair equality of opportunity. See idem at 226-29. divvy up the constitutional universe of social rights into rights and directive principles, perhaps, we better serve the competing concerns which prompted Michelman. Such a division might help insure against an obvious danger posed by the full-scale morph- ing of rights into directive principles: while the polity deliberates, and public reason unfolds, people starve. Good faith disagreement shades imperceptibly into dawdling and indifference. And the voices of those at the margins weaken. Judicially cognizable welfare rights might pro- vide a hook and a prod, to use Michelman’s own metaphors, for securing the livelihoods of those at the margins, boosting slightly their ability to participate in the polity’s conversations about its directive principles, about what it means to sustain everyone as a participant and con- tributor. What is more, the simpler we make the cognizable essentials of social citizenship, the more vigorously our constitutional courts might provide stays against political failures. Today, social provision, social rights, even the social safety net are in tatters and disrepute. The working poor constitute a growing part of the nation’s labor force, and the scandal of over- work, demeaning conditions, and impoverishing wages for millions of Americans goes largely unaddressed. During this dry season, no scholar has done more than Michelman to keep intel- lectually alive and vivid the view that high constitutional values and commitments are at stake in how America responds to poverty and material inequality. As we ponder the shape and the practice of social rights and social citizenship in a progressive Constitution for the year 2020, we are lucky to have Frank Michelman to begin the conversation. Frank Michelman on Social Rights 107 The Just Community: Emile Durkheim on Liberalism and Society D E R I K G E L D E R B L O M Department of Sociology, UNISA I Introduction My aim in this chapter is to provide an overview, and evaluation, of an early communitarian critic of liberalism: Emile Durkheim (1858-1917). Durkheim was one of the founders of aca- demic sociology. His work later inspired the functionalist school in anthropology and sociolo- gy. He was also an important forerunner of the structuralist movement of the 1960s and 1970s in France and elsewhere. Durkheim’s contribution towards the debates on liberalism and human rights arose in the context of his lifelong concern to investigate the relationship between individual and society. He tried to reconcile an emphasis on individual freedom with the demands of social integration and justice. This is especially relevant in our current context where the failures of both a collectivist Marxism and an individualist capitalism are all too apparent. In terms of the current debates between liberals and communitarians, he can best be classi- fied as a communitarian. He was especially critical of free-market liberals and their belief that the invisible hand of the market had the capacity to create spontaneous order out of the selfish exchanges of individuals. Although he found much he could agree with in Kant’s epistemology and ethics, he objected to a core point of departure of Kant’s philosophy. He felt that Kant’s emphasis on a transhistorical, autonomous subject of knowledge neglected the social factors in the rise of this subject, and could not give an account of the individual’s dependency on socie- ty. These points all address themes common to the communitarian critique of liberalism. At the same time, however, Durkheim believed that individual freedom and justice were core values that any modern society had to defend. He also did not regard traditional sources of commu- nity such as religion, ethnicity and the family as viable options for a modern society, and believed that new sources of community had to be found. Durkheim’s defence of communitar- ianism was very sophisticated, and deserves better scrutiny in this debate. II The Nature of Rights Durkheim’s critique of free-market liberals relates to their exclusive emphasis on so-called negative rights. An ongoing dispute in human rights discourse (and within the liberal tradition) concerns the nature of the rights that have to be extended to individuals in order to guarantee their liberty.1 One 1 J Christman Social and Political Philosophy. A Contemporary Introduction (2002) at 47, 216 endnote 1. side, nowadays called the libertarians, argue that these are limited to protection against inter- ference from others. In practice this means that the state must protect the life and property of individuals from depredations by others, and otherwise guarantee their freedom to live their life as best as possible. Their opponents, of which John Rawls is within the liberal tradition the most prominent exponent, believes that additional rights are necessary to guarantee the mini- mum level of living necessary to meaningfully exercise those rights (so-called positive rights). This means that the state must act to reduce gross poverty that impedes the self-realisation of some individuals. As is well-known, the South African constitution is relatively unique in the sense that it contains provisions supporting positive rights. It is also common knowledge that, in the Grootboom case, the Constitutional Court has committed itself to an, at least limited, degree of judicial oversight regarding the government’s duty to give effect to those provisions. In Durkheim’s time, the negative rights argument was articulated most prominently by Herbert Spencer, and it was against him that Durkheim’s criticisms were directed. As we shall see below, Durkheim was an advocate of justice in economic exchanges, and believed that redis- tribution was necessary to ensure justice. He was therefore critical of the free-market argu- ment’s rejection of positive rights. However, this is not what is at issue in the next few para- graphs. Here we will attend to what can be called a sub-argument within the bigger argument about rights. Durkheim was in particular critical of Spencer’s argument that social order can be attained purely on the basis of self-interested exchanges in the marketplace. This argument was first advanced by the Scottish political economist and Enlightenment philosopher, Adam Smith, in his famous book The Wealth of Nations (1776). Philosophers differ in other respects with regard to their justification of the primacy of negative rights (some departing from a utilitarian framework, and others such as Nozick basing their arguments on Locke’s social contract theo- ry, as well as Kant), but Smith’s argument about the possibility of social integration purely on the basis of market exchanges is central to all of them. Any theory that defends a notion of a limited state and an exclusive emphasis on negative rights needs to prove that a setup in which rights are limited in that way is viable and will not create conflict. III Social Order Based Purely on Self-Interested Market Exchanges Smith’s argument was advanced in a context where philosophers had been wondering for some time how social order could be maintained in the new society that was then forming in Europe. Religious wars following upon the Protestant Reformation, the decline of feudal society and later the beginning of the Industrial Revolution all contributed to disruptive social change. Hobbes formulated this question in terms of what later came to be known as the ‘problem of order’: Given that all people are inherently selfish, how will it be possible for us to avoid a state of constant conflict? As is well-known, his answer was that individuals will agree to subordi- nate themselves to a strong sovereign, who will be charged to keep order among them. A more extreme answer was provided some time later by the reactionary Frenchman, Joseph De Maistre. Social order, he said, is guaranteed in the last instance by one man only: the execu- tioner.2 Both of these believed that it is necessary for individuals to offer up their freedom to ensure social order. This was not Smith’s viewpoint. His argument was that neither the The Just Community 109 2 I Berlin ‘The Counter-Enlightenment’ in Against the Current: Essays in the History of Ideas (1980) at 23. 1 1 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E sovereign not the executioner is necessary. Social order can arise spontaneously, if the right institutional setting is provided, from the free actions of individuals in the marketplace. Smith (and Spencer) believed that the ‘invisible hand’ of the market has the remarkable capacity to ensure that the greater good will be served if people pursue their own selfish ends. The argument is as follows: The basis for progress in a society is the increasing division of labour. If a large enough market exists in which individuals can freely exchange their products, the division of labour in a society will grow more complex. People will specialise in making one product only, and will cease to be self-sufficient. This specialisation will both make people more dependent on others and lead to increased productivity and economic growth. Division of labour is also the key to social integration. Market exchanges take place because people need the products produced by others. In a competitive environment, it will be in the enlightened self-interest of sellers not to exploit their customers, because customers can always patronise the competition if they are not satisfied. Market pressures therefore make it possible to regulate the relationships between exchange partners so that conflict does not result from their interaction. In a free market, social order arises, purely unintentionally, from the selfish desires of individuals. It is obvious why this argument is attractive to libertarians. Central direc- tion from the state, or any other form of extraneous regulation, is not necessary to create social order. In fact, they believe it would distort the working of the market and should therefore be avoided.3 Thus the responsibilites of the state to its citizens should be limited to guaranteeing the negative freedoms of individuals. Redistributive actions to ensure positive rights are conse- quently forbidden. IV Durkheim’s Critique The first part of this argument was less contentious for Durkheim. He certainly recognised the capacity of the division of labour to increase productivity. He did, however, have major prob- lems with the next part of this position, which was that the free market, by itself, was able to integrate society and that it should therefore be left unregulated. Durkheim insisted on the opposite: if implemented consistently, free-market policies would lead to conflict and social dis- organisation and destabilise society. It would encourage a radical individualism that elevated the interests of the individual above that of society. This radical individualism, he said, placed no limits on the individual’s desires. As a result, these desires become uncontrollable, which leads to conflict between people as their massive egos clash in search of self-gratification.4 But this does not mean that all kinds of individualism are bad. A more responsible individualism that takes into account social needs was indeed a good thing. Durkheim, like Smith and Spencer, supported individual freedom against the depredations of the sovereign and the executioner. This put him in the liberal camp in terms of the debates of the day. He made it clear that the old basis of social order, which centred around unquestion- ing obedience to church, king and country was no longer viable. People had become emanci- pated from these structures, and this was a good thing; not something to be deplored. What 3 Smith’s book has been somewhat unfairly typecast as an unqualified defence of freemarket capitalism. His book also contains cogent arguments about the need for state interventions in some cases. 4 E Durkheim The Division of Labour in Society (1984) at xxxii; E Durkheim The Elementary Forms of Religious Life (1995) at 427. was needed now, he argued, was new institutions and values with the capacity to gain the respect and support of modern, emancipated, individuals. These institutions will aim to defend individual freedom, even as they guard against the abuse of this freedom. We now move to the specifics of Durkheim’s argument against Spencer. Durkheim claimed that Spencer was wrong in believing that self-interest and the negative rights necessary to pur- sue it could act as the basis for social peace.5 He made the following points: Self-interest is not stable enough to act as the basis for social peace. According to Durkheim, it may be in my interests to cooperate with you today, but then again it may be against my inter- ests to do so tomorrow.6 Durkheim unfortunately did not elaborate on this point, so it is not clear why he thought self-interest should be so inconstant in its effects. It is not difficult to find reasons to support his argument, though. The free market analysed by Smith represents an ide- alised situation that does not appear very often in reality. It assumes a multitude of sellers and buyers, with no single one of them big enough to force his/her terms on the others. In the real world, of course, monopolies and oligopolies are common, entry costs to new competitors high, and arm-twisting (and leg-breaking) rife, so market discipline is absent to a significant extent. In these cases, self-interest leads to exploitation by the powerful. Even the idealised free-mar- ket situation can only account for relationships between buyers and sellers. It does not provide any antidote to conflict, and hard-ball tactics, between sellers, for example. A good example of this was the state of war that existed in the unregulated minibus-taxi industry of South Africa until recently. The free-market argument is particularly problematic in the case of the labour/capital rela- tionship. According to Durkheim, free-market ideologues like to say that, if employers offer salaries that are too low, they will not find workers to fill these positions, because no rational person will work in an occupation if the salary does not match the work involved.7 They there- fore believe that the market forces of supply and demand will, by themselves, ensure that work- ers are compensated at a level equivalent to their productivity, because a shortage of workers will force employers to increase wages. What they forget is that a whole section of the popula- tion cannot abandon their function in this way, since no other is available to them. A worker may very well find him- or herself in such a powerless position. Such a person may be desper- ate to find a job simply to ward off starvation, in which case s/he will take any job on offer regardless of the employment conditions. The weak bargaining position of workers may there- fore render the discipline of market forces on employers inoperative, because they will not expe- rience a shortage in their labour supply that can force them to improve conditions of work. This can lead to great injustices. The negative rights that people are exercising in their contractual relations ‘detach them from one another, and mark out clearly the barriers separating them’.8 This can indeed limit the encroachment of one person upon another, according to Durkheim. But this is not enough to bring about social peace; instead ‘it presumes it’: ‘In fact, for a man to acknowledge that oth- ers have rights… he must have agreed to limit his own. Consequently this mutual limitation was only realisable in a spirit of understanding and mutual harmony’.9 The name Durkheim gave The Just Community 111 5 E Durkheim Professional Ethics and Civic Morals (1957) at 52-53, 71-72; Durkheim The Division of Labour (note 4 above) at 149. 6 Durkheim The Division of Labour (note 4 above) at 152. 7 Durkheim The Division of Labour (note 4 above) at 310. 8 Durkheim The Division of Labour (note 4 above) at 75. 9 Durkheim The Division of Labour (note 4 above) at 76. 1 1 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E for the social cohesion that causes people not to interfere with others, and thus enables their negative rights, was solidarity. Durkheim’s argument here assumes that the argument above about the inconstancy of self-interest is proven. It is not immediately clear that solidarity is the only reason why people would agree to limit their own rights. Enlightened self-interest, for example, can also be a reason, and unless this is excluded as a motivation, his argument is incomplete. But as we have seen, self-interest does indeed not guarantee social order, so this objection does not apply. V Durkheimian and Marxist Critiques of the Free Market Durkheim was one of the first social theorists to question the ability of free markets to integrate society. As is well-known, Marx and Engels before him were very critical of the impact of the divi- sion of labour on the working classes, as well as the conflict produced by capitalist relations of production.10 It should be clear that Durkheim’s analysis of the forced division of labour shows some similarities to Marx’s critique. Durkheim was also sympathetic to some socialist policies, as we shall see later on. Nevertheless, he differed from the Marxists in one important respect.11 Durkheim claimed that the socialisation of the means of production was not, by itself, the solu- tion to such problems. If the selfishness of individuals is not subjected to moral constraint, even socialism would not put an end to conflict. Individual desires will only remain within the capaci- ty of a socialist society to satisfy them if they are controlled by the common morality.12 VI Durkheim and Neo-Institutionalism The belief in the self-regulating market later came to occupy a central position in the successor to the political economy tradition of Adam Smith: neo-classical economics. Recently however, economists in the neo-institutionalist school have become critical of the ability of the market to serve by itself as a guarantor of social peace, and thus of neo-classical economics.13 According to them, markets and contracts can serve to discipline discrete (that is, non-repetitive) transac- tions where there is a choice of alternative suppliers and buyers and the goods exchanged are standardised. However, such transactions form only a small part of the total sum of transac- tions in the economy. For the rest, more elaborate governance structures are necessary. This can either take the form of the vertically-integrated firm (that is the firm buys out the supplier, or starts one up by itself) or the form of relational contracting. Williamson explains the rise of the latter two governance structures with reference to the need to minimise transaction costs.14 Transaction costs arise from two characteristics of exchange. Williamson firstly relaxes the unrealistic neo-classical assumption that the exchange parties both possess perfect information and replaces it with one of bounded rationality. In bounded rationality information is costly to obtain, and actors find it difficult to process even 10 K Marx & F Engels The Communist Manifesto (1848). 11 Durkheim Professional Ethics (note 5 above) at 10-11, 31. 12 Durkheim Professional Ethics (note 5 above) at 10-11. 13 I Macneil ‘Economic Analysis of Contractual Relations’ in P Burrows & CG Veljanovski (eds) The Economic Approach to Law (1981) 61; OE Williamson ‘Contract Analysis: The Transaction Cost Approach’ in P Burrows & CG Veljanovski (eds) The Economic Approach to Law (1981) 39. 14 Williamson ‘Contract Analysis’ (note 13 above) at 45-46. the little information that they have. This creates a need to economise on the time and effort involved in decision-making. In addition, he assumes that opportunism is a reality in exchanges. This implies that actors are often tempted to hide their real intentions to others, and therefore profit by deceit. The costs resulting from the gathering and processing of information, as well as the safeguards against opportunism, are known as transaction costs. In relational contracting, the buyers and sellers build up a long-term relationship. Here, informal norms that regulate their exchanges develop over time between buyer and seller. In addition, a feeling of solidarity develops between the partners. This builds up trust between them. These characteristics of relational contracting allow actors to reduce their transaction costs. Long-term relationships simplify decision-making, and trust reduces the need to guard against opportunism. As a result, the partners are prepared to limit their immediate self-inter- est for the sake of the relationship. Their attitude tends to become more one of enlightened self- interest, taking the longer view. They realise that their relationship allows them to benefit more as a group than would otherwise have been possible if they had acted as individuals only. Although I am not aware of any direct line of influence from Durkheim to the new institu- tionalists, it should be clear that there are important similarities between Durkheim’s work and theirs. However, there are also important differences. Despite their deviations from neo-classi- cal economics, Williamson and others in this tradition still depart from a micro-perspective, taking the individual as their point of departure. They also share an economising perspective with neo-classical economics. Both of these points of departure are foreign to Durkheim. Moral behaviour is not just a means to an end for Durkheim, as it is for the neo-institutionalists, it is an important end in itself: ‘It is not merely a matter of increasing the exchanges of goods and services, but of seeing that they are done by rules that are more just; it is not simply that every- one should have access to rich supplies of food and drink.15 Rather, it is that each one should be treated as he deserves, each be freed from an unjust and humiliating tutelage, and that, in holding to his fellows and his group, a man should not sacrifice his individuality.’ Durkheim finally was resolutely a macro-theorist. For him society was a reality in its own right that had a major impact on the individual, as we shall see below. VII Durkheim’s Ideal Typical Picture of Social Development In the light of the foregoing, it is not surprising that Durkheim thought that contemporary European societies exhibited numerous symptoms of social disintegration. Industrialisation caused the disintegration of the feudal societies of earlier times. In their place, a new society was coming into being, with industrial capitalism as its mode of production and individual free- dom as its dominant ideology. Opinions varied about the viability, and desirability, of this new world, which later came to be known as ‘modernity’. For Durkheim this new world was not viable in its then current form. The market was subject to few controls. Old forms of commu- nity were eroded by capitalism and new forms were not instituted. The disorganisation he observed was precisely what would follow from the absence of regulation of economic exchanges, and the failure to install solidarity and new forms of sociability between people. This leads to the social problems of what he called egoism and anomie. In order to understand why these problems come to the fore, we need to briefly consider The Just Community 113 15 Durkheim Professional Ethics (note 5 above) at 71-72. 1 1 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Durkheim’s exposition of the role of increasing division of labour and decreasing collective con- sciousness in the rise of modern societies. In his book Division of Labour in Society Durkheim worked out an ideal typical scheme of social development. He defined the problem he was going to study as follows: ‘How does it come about that the individual, whilst becoming more autonomous, depends ever more closely upon society?’.16 This then was Durkheim’s vision of social development: There is an historical trend towards increasing individualism. Under ideal circumstances this trend does not produce a lack of social cohesion, and it was the intention of his book to show why this was possible. Because this ideal line of development was not fol- lowed, the extremes of egoism and anomie mentioned above, resulted. Armed with the concepts developed here, we will return later on to the discussion of what in his view went wrong. Durkheim believed that the division of labour is very simple in primitive societies. In a hunter and gatherer type of society, men are the hunters and women the childminders and gatherers. Here the division of labour is largely based on gender, with some distinctions made on the basis of age. As societies develop the division of labour becomes more complex. In the stage of set- tled agriculture there are occupations such as craftsmen, priests, soldiers, herdsmen and farm- ers. Industrialisation, of course, has an enormous impact on the division of labour. Initially, hundreds but later thousands of new occupations are created as a result of industrialisation. The simple division of labour of primitive societies, where people have similar occupations, is associated with similarities in the feelings, values and beliefs of people. They thus share a strong, collective consciousness. The French term used by Durkheim is conscience collective, which suggests similarities in both cognitive and moral beliefs.17 Durkheim (and his English translators) had a number of names for the collective conscience, which gives an idea of what he meant by it. Besides ‘collective consciousness’, it is alternatively called civic morals, public opinion, common morality or collective representations. The common morality is the basis of what Durkheim calls mechanical solidarity. People feel connected to their neighbours because they are all alike. Durkheim believed that the higher ranges of every person’s consciousness can be divided into two parts: an individual (or unique) part, not shared with other people, and a collective part that consists of the ideas and beliefs similar to other people.18 Mechanical solidarity can only be strong if the second part, that is, the ideas and beliefs common to people, occupy a larger part in each of our minds than the unique part.19 It follows from this that the individual per- sonality, understood as a reasoning and moral being, cannot exist if the collective consciousness occupies our minds completely. In other words, the decline of the collective consciousness is a precondition for the rise of the individual personality.20 This is what happens when the division of labour becomes more complex. More variety creeps into people’s ideas, and this leads to the erosion of the collective consciousness. Like the division of labour, the collective consciousness becomes more fragmented.21 Because people now have such diverse experiences in the world of work due to the division of labour, ideas and 16 Durkheim The Division of Labour (note 4 above) at xxx. 17 Durkheim The Elementary Forms (note 4 above) at 214; A Giddens Studies in Social and Political Theory (1977). 18 Durkheim The Division of Labour (note 4 above) at 61. 19 Durkheim The Division of Labour (note 4 above) at 84. 20 Durkheim The Division of Labour (note 4 above) at 142; D Gelderblom Morality, Individual and Society: Emile Durkheim (2004). 21 Durkheim The Division of Labour (note 4 above) at 172. beliefs are no longer shared. In other words, the collective consciousness divides up into parts, each part regulating a particular occupation. The impact of the division of labour on the collective consciousness indicates the link that Durkheim posited between social organisation and belief systems. A small-scale intimate soci- ety produces intensely-held common beliefs, and a large-scale differentiated society produces more variety in and less commitment to common values. The rising division of labour and the declining collective consciousness can, if conditions are right, produce a new kind of solidarity, called organic solidarity. The conditions Durkheim had in mind was the following: division of labour, morality and legal regulation. It should be appar- ent that Durkheim thought that these conditions were not yet in place. Durkheim believed that Spencer and Smith were right to give the division of labour a role in the integration of society, but were wrong about the mechanism by which it would do so.22 The division of labour leads to social harmony, not because it co-ordinates interests, but because it creates solidarity. Because we each specialise in producing only one product (or part thereof) or service, house- holds are no longer self-sufficient. The division of labour therefore makes us dependent on other people to survive. When we become aware of this mutual dependence, we develop a lik- ing for others, as well as a willingness to submit our interests to social regulation. Peaceful and orderly exchanges between individuals depend on these feelings. Durkheim made it very clear that the interdependence created by the division of labour was not enough to serve as the basis of solidarity, however.23 The new occupations created by the division of labour needed to be regulated to make sure that conflict does not arise. The first form of social regulation was moral. As Durkheim put it: ‘A state of order or peace among men cannot follow of itself from any entirely material causes, from any blind mecha- nism, however scientific it may be. It is a moral task’.24 The ‘blind mechanism’ that Durkheim was referring to here was obviously the invisible hand of the market. Moral regulation is nec- essary to prevent ‘the law of the strongest from being applied too brutally in industrial and commercial relationships’.25 It imposes control over the selfish impulses of individuals. It also leads to just outcomes in the marketplace, which makes the less privileged more inclined to accept the outcomes of economic exchanges. Durkheim believed that for every occupation a professional morality was necessary, along the lines of the ethical standards that apply to advocates. The fact that this was absent in the case of most other occupations was a matter of concern to Durkheim.26 Professional ethics would not arise in a social vacuum, however, and consequently Durkheim argued that it was necessary to organise all the occupations into occupational groups.27 These groups would pro- vide the facilitating context that could induce such moralities, as we shall see later. Professional moralities were guided by a broader social morality, the collective conscience. In modern societies this common morality revolved around what he called the ‘cult of the indi- vidual’.28 This cult comes to prominence in the modern world because this kind of society The Just Community 115 22 Durkheim The Division of Labour (note 4 above) at 333. 23 Durkheim The Division of Labour (note 4 above) at 172-173, 301. 24 Durkheim Professional Ethics (note 5 above) at 12. 25 Durkheim The Division of Labour (note 4 above) at xxxix. 26 Durkheim Professional Ethics (note 5 above) at 30; Durkheim The Division of Labour (note 4 above) at 174. 27 Durkheim Professional Ethics (note 5 above) at 7-12. 28 Durkheim Professional Ethics (note 5 above) at 56, 69-70; Durkheim The Division of Labour (note 4 above) at 122. 1 1 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E accords the individual a sacred status: ‘We carry on the worship of the dignity of the human person…it is indeed a common faith’.29 As traditional religion loses its credibility the cult of the individual grows to take its place. Durkheim’s recourse to the common morality seems somewhat paradoxical on the surface, because his analysis has also demonstrated that it weakens as a result of division of labour. It also makes mechanical and organic solidarity less distinct. At least part of the solution to this paradox is that it now serves only as a backup to the professional morality: it only regulates broader conflicts in society across occupational lines. Perhaps Durkheim also sensed a problem here. Later in his life he investigated how religious (and secular) rituals could strengthen the common beliefs of communities. It thus seems as if Durkheim later on tried to look for mech- anisms by which common beliefs could be reinvigorated. Another problem is the vagueness about which of the two factors are independent and which dependent variables: social organi- sation or beliefs? Division of labour (social organisation) affects beliefs, but beliefs are neces- sary to forestall social disorganisation in the form of conflict, and so on. There is in principle no objection if both affect each other, but more clarity about the logic involved here would have been welcome. This is so especially in the light of his inclination, noted by Lukes, toward cir- cular argumentation.30 Moral ideas find expression in the legal system, which is the second form of regulation. It is necessary for contracts to be embedded in a legal framework that can clarify the many grey areas that can arise when two individuals enter into a contract. A contract therefore implies duties that go beyond those that individuals have agreed upon.31 VIII The Reality of Social Disintegration We have now finished with the ideal picture; the way development should have happened according to Durkheim. We now need to find out what went wrong to produce the egoism and anomie that he perceived around him at the time. Egoism occurs when people are too self-centred.32 Durkheim linked this excessive individu- alism to a decline in the levels of social integration. If social bonds weaken, people do not build up strong associations with groups; that is, they no longer feel part of a group. As a result, the group ceases to be an important anchor for individuals, and they become isolated and feel they lack meaning in life. Pre-industrial societies showed higher levels of social integration than modern societies, according to Durkheim. The ways in which they manufactured those high levels of integration are no longer viable, however, and alternatives have to be found.33 They created high levels of integration by restricting individual initiative in unacceptable ways, or through institutions that no longer exist in their original form. For example, religious belief systems were protected against doubt by restrictions on free thinking, and this ensured the continued viability of reli- gious groups as sources of social contact for individuals.34 However, the restrictions placed by 29 Durkheim The Division of Labour (note 4 above) at 122. 30 S Lukes Émile Durkheim. His Life and Work: A Historical and Critical Study (1975) at 31. 31 Durkheim The Division of Labour (note 4 above) at 159. 32 E Durkheim Suicide. A Study in Sociology (1952) at 209. 33 Durkheim Suicide (note 32 above) at 375. 34 Durkheim Suicide (note 32 above) at 374. religion on free thinking offends modern value systems. Unlike in the past, people no longer unquestioningly accept the authority of religion, and will not allow religious bodies to prescribe to them how they must think. Another source of integration was the pre-industrial family. According to Durkheim, this family type was large and close-knit and provided many oppor- tunities for social contact. Modern families are much smaller and isolated from communal con- tact however, and can no longer play the integrating role they used to.35 Anomie is the result of the frustration, and consequent suffering, of people when their appetites outrun their ability to satisfy them. Anomie is related to egoism, as Durkheim remarks, because it also results from ‘society’s insufficient presence in individuals’.36 Despite this similarity, egoism and anomie differ with regard to the part of society in which this lack is experienced. Egoism derives from the world of morality and the intellect, and produces a lack of meaning and purpose in life. Anomie, by contrast, is located in the world of the economy. Anomie is endemic in modern society. According to Durkheim, this is because human needs have grown out of all proportion.37 Apart from some physical needs such as food, where phys- iological processes create a feeling of satiation once they have been met, human needs such as the need for luxury or money are, in principle, insatiable. Needs that can never be satisfied cause the individual to chase after infinity. It means being placed on a treadmill, running ever faster after a goal that can never be met. Needs have grown so much in modern societies because they are no longer limited, as before, by forces such as religion which taught people to be satisfied with their station in life. The market has also grown to such an extent that it has reached global proportions. Like Marx, Durkheim anticipated the globalizing tendency of the capitalist market.38 The development of the global market was associated with the rise of another phenomenon, which Durkheim did not foresee: the advertising industry. This industry is dedicated to the manufacturing of new needs and increases the extent to which people’s desires outrun their ability to satisfy them. IX Durkheim’s Solutions This is the set of circumstances that has made anomie endemic in modern societies. To solve this problem, people need to accept their desires being limited for the greater good. Morality is the only force with the capacity to ensure this agreement, according to Durkheim.39 It would do so as follows: In a just society there would be a broad consensus on the level of remunera- tion that each occupation in society deserves. For every occupation, there will be a generally accepted maximum beyond which it is regarded as unrealistic, and immoral, to strive. This social determination of acceptable living standards for each occupation was not very exact.40 It gives a range within which each individual can set his or her expectations for life, with the result that people have some scope for improving their circumstances within these limits. The important thing, though, is that it sets a maximum, and thus ensures that individuals do not become frustrated as a result of their inability to fulfil their unlimited desires. The Just Community 117 35 Durkheim Suicide (note 32 above) at 377. 36 Durkheim Suicide (note 32 above) at 258. 37 Durkheim Suicide (note 32 above) at 247. 38 Durkheim Suicide (note 32 above) at 255-256. 39 Durkheim Suicide (note 32 above) at 248-249. 40 Durkheim Suicide (note 32 above) at 250. 1 1 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Durkheim’s belief that people will allow their desires to be limited in this way is open to criti- cism. People do indeed accept their station in life to a remarkable degree. They tend to limit their expectations of life to within the horizons of what they perceive to be the possible. But there is also a constant conflict over the distribution of resources in modern societies, which suggests that this self-imposed limitation only goes so far. In Durkheim’s defence one can say that he did not believe that the modern societies he analysed actually exhibited such consensus: only in a just society will such a consensus exist. In fact, this is the whole point of his analysis of anomie: regulatory structures have not yet developed, thus predisposing modern societies to anomie. People will not accept that others deserve to be remunerated better than they if the lat- ter started out with unfair advantages in life. Until such time, conflict over the distribution of resources will indeed be rife. A just distribution of resources is therefore a precondition for solv- ing anomie. This raises the question of what Durkheim meant by ‘just’. What social arrangements need to be in place for just outcomes to be produced in the marketplace? In short, Durkheim believed that only distributional outcomes that resulted from a situation where everybody had an equal chance to perform, were just. Only those social arrangements that allow people to rise to positions based purely on their merits, and where the accident of birth played no role whatsoever in their career path, thus qualified.41 This means that any mechanism by which the privileged could transmit their privileged position to their children had to be eliminated. Durkheim therefore made a plea for inherited wealth to be abolished.42 Inherited wealth gave those lucky enough to have acquired it an unfair advantage in life’s race. The same applies to factors such as unequal access to educa- tion. If there are obstacles placed in the way of individuals’ realising their talents, such as inherit- ed poverty, or a lack of education, the division of labour is forced and equality of opportunity can- not be realised.43 Durkheim’s plea was thus for a system of meritocracy. But this still leaves an important objection. What is so compelling about meritocracy that people will generally accept it as the guiding distribution principle? It is only one out of a num- ber of theories of justice. There are also different versions of the meritocratic principle.44 Some theorists believe that the only social arrangements necessary for equality of opportunity to be realised is the absence of legal obstacles (such as job discrimination) to individual advancement. Others are more demanding with regard to the criteria that need to be in place for it to be realised. This more radical version of meritocracy also prescribes that people need to be given the same resources to perform. It should be clear that Durkheim falls in the latter category. Even if we grant Durkheim that the notion of meritocracy has powerful resonance in modern socie- ty, why should people necessarily accept his version of the principle rather than others? Durkheim did have an answer to this objection, but it is not very convincing. As we said above, he postulated a close correlation between the type of social organisation and the kind of belief systems that will be found in a society. Given that the individual occupies such an impor- tant place in modern society, only philosophies that elevated the individual to a high status and that wanted to give each an equal chance would be viable, he believed. Although there certain- ly is some truth to this belief, the picture is much more complex than this, as the variety in polit- ical philosophies competing for acceptance in modern societies demonstrates. 41 Durkheim Suicide (note 32 above) at 251. 42 Durkheim Suicide (note 32 above) at 251; Durkheim The Division of Labour (note 4 above) at 313-314. 43 Durkheim The Division of Labour (note 4 above) at 314. 44 Christman Social and Political Philosophy (note 1 above) at 62-63. A further objection to Durkheim’s theory is that he does not provide a criterium to distinguish a forced consensus from a genuine one. What is called ‘public opinion’ often reflects the views of powerful, and wealthy, people in society rather than the views of ordinary people. It is the pow- erful and the wealthy who own and control newspapers and television stations, not the latter. Nevertheless, Durkheim’s belief that individual desires need to be constrained has some res- onance if we look at the ecological imperatives faced by late modern societies. It is doubtful that the planet has the capacity to absorb the damage that will be caused to its ecosystems if every- body consumed at the level of the average American. Besides the notion of justice, Durkheim also foresaw a role for two social structures in his solution to egoism and anomie. These are the professional group and the state. They will respectively nurture the professional ethics and the common morality necessary to regulate eco- nomic life. The professional group will also form the vehicle by which the close community bonds of yore will be recreated. With the advent of the division of labour, morality starts to differentiate between the different occupations, as we have seen above. But morality remains very weakly developed and feebly en- forced if there isn’t a group that is dedicated to promoting it. The stronger the group cohesion, the more numerous and binding the moral rules will be. Occupational groups are, according to Durkheim, particularly suited to fulfill this task. Durkheim’s idea was that each trade or occupa- tion should constitute itself into a professional group with regulatory powers. All the people that work in the construction industry, for example, employers and employees alike, should come to- gether on a national basis in a professional group that is dedicated to that industry.45 In this group, decisions will be made about the appropriate regulations governing the relationships between employer and employee, between competitors, and between contractors and their clients.46 Durkheim hoped that such a group would, over time, start taking on an almost familial char- acter.47 People will find their most important social bonds in this group. Durkheim hoped that these groups would cause ‘the present cold moral temperature’ of the world of work to become warmer.48 This group would also look after the welfare of individuals, providing services such as unemployment insurance and pensions.49 If a breadwinner falls ill for example, this group will support his or her dependents. However, professional groups could not regulate the economy on their own. Some agency is necessary to guide the relationships between the different spheres of work. Each profession would naturally attempt to promote the interests of their own members, sometimes at the expense of the interests of others. This is where the state comes in, according to Durkheim.50 It was the only agency with a broad enough view to look after the interests of society as a whole, and thus to guard against abuses committed by sectional interests. It has to formulate and administer the general laws that regulate economic life. Professional groups, for their part, had to keep the state in check.51 In their absence, the state may become totalitarian, and com- pletely stifle individual freedom. The Just Community 119 45 Durkheim Professional Ethics (note 5 above) at 37. 46 Durkheim Professional Ethics (note 5 above) at 9. 47 Durkheim Professional Ethics (note 5 above) at 21. 48 Durkheim Suicide (note 32 above) at 381. 49 Durkheim Suicide (note 32 above) at 380. 50 Durkheim Suicide (note 32 above) at 374; Durkheim Professional Ethics (note 5 above) at 62; Durkheim The Division of Labour (note 4 above) at li, liv. 51 Durkheim Suicide (note 32 above) at 380; Durkheim Professional Ethics (note 5 above) at 63; Durkheim The Division of Labour (note 4 above) at liv. 1 2 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E This balance of opposing forces was essential for individual freedom to be realised, according to Durkheim. The state is necessary to free individuals from the ‘collective particularisms’ of secondary groups.52 These can take the form of professional groups, local communities, reli- gious groups or clans. Although they provide communal bonds and opportunities for sociabil- ity to the individual, these groups can also, because of their cohesiveness, repress individuality if they are not held in check. Due to the important role of the state in this regard, it is thus not true to claim that a small state is necessary for individual freedom, as free-market liberals claim, according to Durkheim.53 In fact, the opposite is the case, provided that a strong civic life exists to keep the state in check. X Why the Invisible Hand of the Market is not Good Enough: A Summary It is perhaps now time to draw the different strands of Durkheim’s complex argument against free market liberalism together. The free market does not have the capacity to create sponta- neous social order out of the economic exchanges of selfish individual egos. It will, instead, pro- duce conflict and social disorganisation. It assumes, for its functioning, social cohesion, but destroys such cohesion wherever it exists. This because it destroys previous forms of commu- nity, and does not replace them with anything new. It is also because it produces market out- comes that are clearly unjust, and that cannot receive popular legitimacy. Its end result is enor- mous individual egos with no conception of the common good. To solve this problem, new forms of community are necessary that are more viable in the light of the division of labour. To make sure that these forms of community do not repeat the mistake of the old and repress individuality completely, the state is necessary to protect, and nurture individual freedoms. The communal groups are likewise needed to keep the state in check. These forms of social organisation should also produce the professional and common moralities needed to provide social cohesion in modernity. Durkheim’s critique of ‘atomistic’ liberalism and his emphasis on the need for communal bonds to maintain social cohesion have clear similarities with the current proponents of communitarian- ism such as Alasdair MacIntyre. He differs from them however with regard to his choice of com- munity to provide these communal bonds: the professional group. His choice of this group, and his discourse on the need for the state to watch over communal groups to ensure that they do not repress individuality, demonstrates his sophistication. He thus anticipated the criticism of liberals like Kymlicka who pointed to the repressive tendencies of these groups. Durkheim can also be crit- icised however for his somewhat optimistic belief in the capacity of a common morality to contain the conflict of interests between the employer and employee constituents of the professional groups. XI The Social Construction of the Moral Subject We can now move on to another part of Durkheim’s communitarian critique of liberalism: its conception of the subject. The notion of a free human subject of knowledge forms the basis for 52 Durkheim Professional Ethics (note 5 above) at 61-62. 53 Durkheim Professional Ethics (note 5 above) at 57. the defence of human rights in many currents of human rights discourse.54 It is derived essen- tially from the work of the 18th century German philosopher, Immanuel Kant. For Kant knowl- edge is only possible on condition that a subject of such knowledge exists. Knowledge of the world cannot only be built upon the manifold impressions received from the senses. The sense impressions have to be constituted into meaningful perceptions, otherwise they will remain essentially chaotic. This is done by what Kant called the intuitions of space and time, and the categories of understanding such as cause, number, modality, and so on. The intuitions and cat- egories are the basis of the knowing subject. Because they are a precondition for observation they cannot themselves be observed. This is why Kant called them a priori. The subject of knowledge therefore stands observation; it is the ground of observation but never itself the object of observation. The subject, as Kant defined it, is universal. All individual subjects with the capacity for knowledge have these attributes. This subject is also the precondition for our ability to act morally. Because it is not consti- tuted by observations of external (the world outside us) or internal (our own feelings and desires) objects, it completely escapes determination by them. It is therefore essentially free of outside conditioning. For Kant our actions can only be truly moral if they are based on a free exercise of our will, and not the result of conditioning by other forces. The existence of free will is the starting point of Kant’s ethics. Society should be ordered in such a way that maximum scope is offered to individuals to freely exercise their will. In addition, my interaction with oth- ers must always take into account that they also possess a free will, just like me. I must there- fore treat other people as ends in themselves and not as means to my own ends. Ethical rules should furthermore be universal: I can only act in a particular way if I also accept that the con- sequences will be acceptable if everybody else acts in that way. Durkheim agreed with Kant’s ethics, as well has his views on the need for a priori categories of understanding to make sense of observation. However, he differed from him in one impor- tant respect: the moral subject is a social construction, and not innate. From this it follows that the subject can never be as autonomous as Kant thought s/he should be. Individual autonomy must always be balanced by individual dependency on society. In the next few paragraphs we will pursue Durkheim’s differences with Kant. In tune with his notion that the collective con- sciousness contains both a cognitive and a moral dimension, he gives attention to both aspects in Kant’s thought. To begin with the subject of knowledge: According to Durkheim, proponents of the view that the categories are innate, such as Kant, have the problem of explaining where they come from.55 But the alternative view, that the categories must have come from experience, was not acceptable either. This view implies that every individual subconsciously learns to make sense of his/her experience by slowly developing these categories over time. This empiricist approach, Durkheim argued, is no solution to the problem. The categories are prior to expe- rience and they cannot be derived from experience. If this is done, they lose their universali- ty and necessity. To overcome this dilemma, Durkheim offered a new solution. In his view, the categories are social in origin.56 They are collective representations that have developed over many genera- tions and that therefore contain the accumulated wisdom of innumerable numbers of individu- als. Because they have been tested in experience over such a long time, they have acquired a The Just Community 121 54 MJ Sandel Liberalism and the Limits of Justice (1998). 55 Durkheim The Elementary Forms (note 4 above) at 13-14. 56 Durkheim The Elementary Forms (note 4 above) at 15. 1 2 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E degree of impersonality and objectivity and can therefore serve as a ground for our experi- ence.57 Because of the social derivation of knowledge, it changes as social organisation changes. Initially it is very much culture-bound. Since the beginning of the modern world, a new kind of society has arisen, however, which Durkheim called international life, or international society.58 This is Durkheim’s version of globalization theory. Because society now becomes more univer- sal, knowledge has to become more universal as well. As a result it jettisons its particularistic attachments, and this allows us to comes much closer to universal truths. In this case, then, the categories will indeed be universal, like Kant said, but that universality is not due to an innate characteristic of the human subject. It is rather the product of social development. Durkheim makes much the same argument with regard to the moral subject: ‘What lies at the basis of individual right is not the notion of the individual as he is, but the way society puts the right into practice, looks upon it and appraises it…The reason why he has more or fewer rights, certain rights and not others, is not that he is constituted in a particular way; it is because society attributes this or that importance to him’.59 An indication of this is the fact that the rights of individuals are ‘in a state of evolution’.60 Durkheim is further convinced that the autonomy that Kant ascribes to humans cannot ever be absolute.61 Human autonomy always has to be counterbalanced by the real dependency of ourselves upon society. Durkheim’s emphasis on individual autonomy as well as dependency has to be seen in the light of his project to, on the one hand, combat a radical individualism, that is an individual- ism that elevated the interests of the individual above that of society, and to find space for indi- vidual freedom on the other. His argument for our dependency on society was as follows: We are dependent upon society, firstly, for our own survival.62 With the rise of the division of labour, other people become the source of the food we eat and all the products we consume. Society is secondly also a source of social recognition and of companionship. We furthermore owe our culture to society: ‘We speak a language we did not create; we use instruments we did not invent; we claim rights we did not establish; each generation inherits a treasury of knowl- edge that it did not itself amass, and so on. We owe these varied benefits of civilization to soci- ety, and although in general we do not see where they come from, we know at least that they are not of our own making.’63 Society can finally uplift and strengthen us. In communal gath- erings, crowd psychology can lead to great outpourings of emotion which can leave people feel- ing transformed and renewed.64 To make sense of Durkheim’s position, we have to return to his vision of social development outlined above. He viewed human personalities as having a double nature: it consists of a col- lective and an individual part. The individual person only comes into existence when the col- lective conscience erodes enough so that it no longer rests so heavily on individual personali- ties. This is the result of the development of the division of labour. Predictably, Durkheim was heavily criticized for this notion of a collective consciousness and 57 Durkheim The Elementary Forms (note 4 above) at 437. 58 Durkheim The Elementary Forms (note 4 above) at 446. 59 Durkheim Professional Ethics (note 5 above) at 67; Durkheim The Division of Labour (note 4 above) at 335. 60 Durkheim Professional Ethics (note 5 above) at 68. 61 Durkheim Professional Ethics (note 5 above) at 68. 62 Durkheim The Elementary Forms (note 4 above) at 208. 63 Durkheim The Elementary Forms (note 4 above) at 214. 64 Durkheim The Elementary Forms (note 4 above) at 211-212. his attendant belief in the reality of society as a force above individuals. Durkheim believed that society was a reality in its own right, separate from the individuals constituting it, even though it consisted of nothing but them in their combination. Because it questions dearly-held assump- tions about the autonomy of individuals, this idea has encountered a lot of resistance. Especially the liberal tradition with its emphasis on the rights of individuals has had great difficulty accommodating it. Even the great John Rawls objected to notions that ‘society is an organic whole with a life of its own distinct from and superior to that of all its members in their rela- tions with one another’.65 A common reaction seems to be that the belief in a separate social reality contains illegitimate metaphysical assumptions, but it is really nothing of the sort. Durkheim’s notion of social reality is based on the very straightforward principle of emergent systemic properties. The argument is as follows: society is a complex system. It comes into being when individuals are combined in an organised way.66 The combination produces something new, something that is different from the parts.67 Society is therefore an emergent property of the complex organisa- tion of individuals, to put it in the language of systems theory. The way society arises from the organisation of its parts is no different from the way life arises from the properties of organic mol- ecules in their combination, or the way consciousness arises from the complex organisation of the brain for that matter.68 The materialist objection that consciousness must be an illusion because there is nothing in the brain but physical matter, is as silly as the idea that society must be an illu- sion because there is nothing in society but individual people. Both are emergent properties of complex systems. Understood in this way, it is difficult to see that the notion that society is a sep- arate reality makes ontological assumptions any different from those implied by Kant’s moral sub- ject, or the freely choosing individuals so dear to neo-classical economics. What evidence do we have that society is a reality in its own right? Well, Durkheim says, we become aware of the independent existence of society through the effects it has upon us.69 One of these is the constraint imposed by social norms.70 According to Durkheim, we are not, in the normal conduct of our lives, aware that our actions are constrained.71 As he puts it somewhere, we are no more aware of the weight of society than we are aware of the weight of the atmos- phere pressing upon us. It is only when we transgress social expectations that we become aware of these constraints. The obvious case of this is the penalties that await us if we break the law. But there exist other, less obvious ways, of controlling our behaviour in the form of our fear of being rejected by our peers. We also see the effects of society in the way social intercourse can transform individuals. During rituals, people lose their individuality to some extent, and become part of a bigger whole. They emerge from these experiences transformed and reinvigorated. This experience is especially common during times of collective ferment, such as political uprisings. Describing the situation during the French Revolution, Durkheim says: ‘We see the most mediocre or harmless bourgeois transformed by the general exaltation into a hero or an executioner’.72 But this trans- The Just Community 123 65 Sandel Liberalism (note 54 above) at 53. 66 E Durkheim The Rules of Sociological Method and Selected Texts on Sociology and its Method (1982) at 129. 67 Durkheim The Rules of Sociological Method (note 66 above) at 39, 45. 68 Durkheim The Rules of Sociological Method (note 66 above) at 43. 69 Durkheim The Rules of Sociological Method (note 66 above) at 43-51. 70 Durkheim The Rules of Sociological Method (note 66 above) at 51. 71 Durkheim The Rules of Sociological Method (note 66 above) at 51. 72 Durkheim The Elementary Forms (note 4 above) at 212. 1 2 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E formative effect is not only restricted to exceptional circumstances. Religious rituals, or civic celebrations, can have such an effect on a regular basis. Society is mostly made up of representations, and it therefore ‘ideal’ in that sense. These rep- resentations have a logic of their own, separate from individual representations. Durkheim’s vision of collective representations is similar to the notion of ‘culture’, as it has been developed by anthropologists. Language, and belief systems, and ‘discourses’, are all collective represen- tations in Durkheim’s sense. They all have a certain autonomy from individual conceptions of them, and they all have their own logic, or ‘conditions of existence’. Durkheim’s emphasis on the reality of the social, and its impact on individuals, finds a lot of resonance in the recent communitarian critiques of liberalism. Sandel’s analysis of three differ- ent views of community provides a very useful space to parachute Durkheim into this debate.73 John Rawls’s distinction between two different kinds of community forms the first two of his three categories. Because he puts it so well, I will quote him at length:74 …Of the two accounts of community Rawls presents, both are individualistic, although the way they are individualistic differs in each case. The instrumental account is individualistic in that the subjects of co-operation are assumed to be gov- erned by self-interested motivations alone, and the good of the community consists solely in the advantages individuals derive from co-operating in pursuit of their ego- istic ends. Rawls’s account is individualistic in the sense of assuming the antecedent individuation of the subjects of co-operation, whose actual motivations may include benevolent aims as well as selfish ones… The first sense of community is the one that results from the free actions of individuals in the marketplace, and is the one Durkheim criticised at length. Rawls’s sense of community denies the subject any supra-individual or intersubjective aspects, and is bound to his rejection of the notion of an independent social reality. This is why it assumes the antecedent individuation of subjects. It does, however, recognise that subjects may be motivated by more than self-interest. In this respect, Rawls signals his rejection of a long tradition in social analysis (neo-classical economics, rational choice theory in sociology) which uses individuals’ quest for maximum self- gratification as their main, if not only, explanatory variable. It also signals his rejection of the atomistic, libertarian politics that follows from it. In Rawls’s view, subjects do not only have egoistic motivations, but can also be more altruistic in their intentions. Sandel argues that even Rawls’s ‘sentimental’ view of community is deficient in its concep- tualization of the relationship between the individual and the social: …On this strong view, to say the members of a society are bound by a sense of com- munity is not simply to say that a great many of them profess communitarian senti- ments and pursue communitarian aims, but that they conceive of their identity – the subject and not just the object of their feelings and aspirations – as defined to some extent by the community of which they are a part… .75 Sandel believes that Rawls’s conceptions of distributive justice can only be defended on the basis 73 Sandel Liberalism (note 54 above) at 147-154. 74 Sandel Liberalism (note 54 above) at 148-149. 75 Sandel Liberalism (note 54 above) at 150. of such a ‘constitutive’ view of community, even though Rawls denies the viability of such a view. Because it rests on ‘antecedently individuated’ individuals, Rawls’s view of community is also impoverished. I once again quote at length: …Where “collective” assets imply endowments once separately held, now ceded to society as a whole, “common” assets do not necessarily; they need not logically pre- suppose a prior individuation. And while “reciprocity” implies a principle of exchange and hence a plurality of agents, the notion of “sharing” may suggest a sol- idarity such that no exchange need be involved, as in sharing a joke, or an aspira- tion, or an understanding. And while “association” and “co-operation” typically presuppose the antecedent plurality of those who join together to associate or co- operate, “community” and “participation” may describe a form of life in which the members find themselves commonly situated “to begin with”, their commonality consisting less in relationships they have entered than in attachments they have found… .76 Sandel believes that the constitutive view of community, which he supports, would choose the latter term in this series of oppositions. Sandel’s subject has an individual and a social part, and in this respect it is similar to Durkheim’s view of the subject. His criticisms of Rawls are also similar to the criticisms that one can imagine Durkheim would make. But there is an important difference, and this suggests a limitation to Durkheim’s theory (and in fact to all social con- structionist accounts of the subject that Durkheim has, directly and indirectly, inspired many years later). Sandel’s subject also has an, albeit limited, capacity for self-reflexivity, both indi- vidually and communally.77 It can, alone and in conversation with friends, gain some self- knowledge by distancing itself from its preferences and beliefs. However, the self that I discov- er in this way is always ready made, and the distancing only relative. It is never something that I, as a free agent, using the will, can create anew. This self-knowledge is therefore necessarily situated, and thus limited, but important nevertheless. Through it, the subject has some capac- ity to subject the values of the surrounding community to critical reflection.78 Notions of jus- tice and the good are therefore never simply the product of ‘ethnocentrism’, as in Rorty’s ‘we do not do that around here’, but also demands the capacity to criticize community values.79 This is why Sandel feels somewhat uncomfortable with the communitarian label he has acquired.80 It is of course also the case that he isn’t completely in Kymlicka’s camp either, since the latter completely overestimates the subject’s insight into itself. Durkheim believes that subjects attain some level of distance from communal values as a result of the destruction of pre-industrial communities. They are therefore not completely taken up by the social any more. But this process of individuation seems to rest completely upon social forces, and entails little, if any, activity of self-reflection by the individual. This ties in with another problem with Durkheim’s view of the subject: the lack of agency he ascribes to it. This problem has received extensive attention in the so-called agency-structure debate in sociology, among others by the realist philosopher Roy Bhaskar. Bhaskar agrees with The Just Community 125 76 Sandel Liberalism (note 54 above) at 150. 77 Sandel Liberalism (note 54 above) at 179-181. 78 Sandel Liberalism (note 54 above) at xi. 79 W Kymlicka Liberalism, Community and Culture (1989) at 66. 80 Sandel Liberalism (note 54 above) at xi. 1 2 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Durkheim’s proof for the existence of society as a real entity (against methodological individu- alism) on the basis of its effects on individuals, and uses it as part of his own argument for the reality of society.81 He criticizes Durkheim however because he had a reified conception of the social as existing separate from the intentional activity of people. Bhaskar summarises his own model of the social as follows: Men do not create society. For it always pre-exists them. Rather it is an ensemble of structures, practices and conventions that individuals reproduce or transform, but which would not exist unless they did so. Society does not exist independently of conscious human activity (the error of reification). But it is not the product of the lat- ter (the error of voluntarism).82 Bhaskar’s conception of society therefore accommodates both the idea of the reality of the social and the importance of human agency. His conception of society is similar to Sandel’s vision of the subject. We always find society ready made, just as the subject always finds itself ready made. It is something we can reproduce or transform, but not something we can create anew. This places limits on our capacity to reconstruct it according to our preferences, just as there are limits on our ability to reconstruct ourselves according to our preferences. It also places limits on our ability to gain knowledge of it, just as there are limits on our ability to get to know ourselves. Neither society nor ourselves as subjects is ever completely transparent to ourselves. Realist philosophers are concerned to reclaim the world as a reality external to our cogni- tions of it, in the face of both empiricism and idealism (and latterly postmodernism). All of these schools ended up viewing the external world as either unknowable, or illusory. It employs a stratified ontology, allocating causal powers and emergent properties to the different levels of the world. This provides a very appealing way to conceive of both the subject and society as mutually-constitutive realities. According to Margaret Archer both the subject and society are the result of emergent properties.83 Both can be viewed as complex systems, as I mentioned above, with a reality of their own. Against postmodernism and social constructionism (and Durkheim) she argues that the subject consists of ‘personal emergent properties’ that are need- ed to make sense of sociability. Role performance by subjects would be impossible in the absence of a subject with a sense of its own continuity and thus self-identity. This subject, in concert with other subjects, has the capacity to transform society, yet it is also partly the result of social conditioning. This, realist notion of society and the subject is in my view superior to both that of Durkheim (and social constructionism) and the atomistic subject of liberal theory. However, Durkheim’s vision of the subject is problematic for another reason, related to the dif- ference between Sandel’s first (instrumental) and second (sentimental) conceptions of community. It is never clear if the subject is inherently selfish, and thus needful of restraint by the common morality, or inherently both egoistic and altruistic. Most of the time, he opts for the first position, but sometimes he seems to mean the second. Part of the confusion is generated by the different 81 Sandel Liberalism (note 54 above) at xi; R Bhaskar ‘On the Possibility of Social Scientific Knowledge and the Limits of Naturalism’ in J Mepham & DH Rubin (eds) Issues in Marxist philosophy Vol 3: Epis- temology, Science, Ideology (1979) at 125. 82 Bhaskar ‘On the Possibility’ (note 81 above) at 120. 83 M Archer ‘The Private Life of The Social Agent: What Difference Does It Make?’ in J Cruickshank (ed) Critical Realism. The Difference it Makes (2003) 91. parts he identified in the personality.84 Lying below the individual and social parts of the person- ality is what Durkheim called ‘physical man’.85 This is the consciousness that we have of our own bodies and feelings. It is the field of psychological (rather than social) facts, dealing with percep- tions such as hunger, sadness, anger, love and so on. Superimposed on this is ‘social man’, which is the higher parts of the human personality, consisting of individual and social aspects. ‘Physical man’, concerned as it is with its own perceptions, is selfish, and thus needs to be restrained. On the other hand, Durkheim also suggested that people have an inherent need for social harmony and interaction with others, and that they come to value this harmony very much once they have experienced it.86 This seems to ascribe altruistic inclinations to ‘physical man’, which leads to a confusing picture. The basic problem, as Lukes points out, is that Durkheim tried to avoid using psychological notions in his concern to make the case for soci- ology as a discipline.87 However, in the process he inevitably smuggled in many psychological ideas, but did not theorise them properly, thus causing confusion. Unlike the vagueness surrounding Durkheim’s views of the inclinations of ‘physical man’, he was very clear in his views on the collective consciousness. The collective consciousness, he said, is altruistic. The collective consciousness represents the voice of society within us; it is, conse- quently, our collective conscience at the same time as it is our collective consciousness. As far as the individual part of our consciousness is concerned, Durkheim suggested that it is altruis- tic in an egoistic way.88 He seems to have understood this as meaning that each of us is socia- ble (altruistic) in an individualistic (egoistic) way. But this causes even more confusion, because it implies that individualism is necessarily selfish, something he has just denied. XII Conclusion Durkheim presented a very meticulous critique of free-market capitalism, and a sophisticated and thoughtful defence of communitarianism. In his concern to establish the reality of the social and the essential role it has to play in a cohesive and just society, he did lean too much to the social side, and he did not give enough attention to the subject’s capacity for self-reflection and agency. This mistake is repeated in the social constructionist accounts of the subject that is so prominent today. Durkheim spent much time considering the forms of communality that would be appropriate to a modern society. His alternative of the occupational groups have their short- comings in a context where many people are unemployed on a long-term basis. Because they will form part of the public sphere and do not address the private sphere of the family, they also have shortcomings from a gender perspective, something that Durkheim, like his contempo- raries, did not seriously consider. Durkheim also underestimated the staying power of tradi- tional forms of community, such as religion and ethnicity. Nevertheless, it is fair to say that his alternative of the occupational group was never really tried, and deserves greater scrutiny. The same can be said for his possible contribution to the liberal-communitarian debate. The Just Community 127 84 Gelderblom (note 20 above). 85 Durkheim Suicide (note 32 above) at 213. 86 Durkheim The Division of Labour (note 4 above) at xliii. 87 Lukes Émile Durkheim (note 30 above). 88 Durkheim The Division of Labour (note 4 above) at 146. Theology and the Fulfillment of Social and Economic Rights: Some Theoretical Considerations N I C O N K O O P M A N Beyers Naudé Centre For Public Theology, Stellenbosch University I Introduction It is an important presupposition of this article and in fact of the research project of which this book is a product that theory-formation is indispensable for addressing social and economic challenges. In fact the Greek root of the word ‘theory’ suggests that theory literally has to do with the way we see and think about the world. These ways of thinking and seeing influence our practices.1 The claim is legitimately made that there is no practice without theory.2 It is then indeed a challenge of the research project to impact on the theories, the ways of seeing and thinking regarding social and economic justice. Impacting the way appropriate role players see and think about social and eco- nomic rights paves the way for an impact on the various practices regarding social and economic justice. Prevailing practices might be revisited and transformed. Where constructive practices are not existing the way may be paved for the development of such practices. In this article it is argued that theology may contribute to this process of theory-formation. Theology, as critical reflection upon the faith and practices of religion,3 through the ages indeed impacted on the theories that informed and guided the practices of faith and other communi- ties regarding political, social and economic justice. Unfortunately this role has not always been constructive. Historically religion and theology fulfilled an ambiguous role.4 It made negative as well as constructive contributions to the wellbeing of society, also with regard to social and economic justice. The history of the world is full of examples of the negative effects of religion, 1 The Greek word (theõreõ) literally means to look or gaze at, to see, to perceive, to think, to discern and even to participate in and experience what you see. See in this regard G Abbott-Smith A Manual Greek Lexicon of the New Testament (1977) at 206-207. 2 For an extensive outline of the idea that all practices are theory-laden practices, see D Browning A Fundamental Practical Theology. Descriptive and Strategic Proposals (1996). 3 This paper focuses mainly on Christian churches and theology. However, various points of convergence with other religions do exist. 4 For a good analysis of the potential destructive role of religions, see S Huntington The Clash of Civilizations and the Remaking of Worldorder (1997). For very helpful outlines of the ambiguous roles of religion with regard to social and economic justice, see two collections of essays in P Berger (ed) The Desecularization of the World. Resurgent Religion and World Politics (1999) and also W Green and J Neusner (eds) The Religion Factor. An Introduction to how Religion Matters (1996). The work of Roman Catholic theologian Hans Küng regarding the potential destructive and constructive roles of religion is also of importance. See amongst others H Küng (ed) Yes to a Global Ethic (1996) and also H Küng and KJ Kuschel (eds) A Global Ethic. The Declaration of the Parliament of World Religions (1993). eg crusades, inquisitions, killing of those who differ on doctrinal issues, killing of millions in the name of holy wars, and the legitimation of evils like Nazism and apartheid. There is, however, also ample evidence of the constructive contributions of religion. The protest of the Confessing Church in Germany during the Nazi regime and the public involvement and wit- ness of so-called struggle churches during the quest for inclusive democracy and during the first decade of democracy in South Africa bear witness to the redemptive role of religion and theology.5 This ambiguous role of churches also prevailed specifically with regard to the development of human rights. Churches did not only in its long history contribute to the violation of human rights, as practices like the subjugation of women and the justification of evils like racism and slavery demonstrate, but churches also offered theological arguments,6 albeit meagre ones, against the notion of human rights. On the other hand, there are ample evidence that the Christian tradition offered theological arguments in favour of, advocated for and helped to lay the foundation for the establishment of human rights.7 Villa-Vicencio makes a strong case to prove that the theological endeavours of mainly south- ern churches, in cooperation with churches in northern countries as well as partners in civil soci- ety and government, helped to ensure that so-called second and third generation rights be taken up into bills of rights more explicitly. In this regard Villa-Vicencio refers with appreciation to the positions of the Lutheran World Federation, the World Alliance of Reformed Churches and the Roman Catholic Church.8 The emphasis in these ecumenical positions on second and third gen- eration rights was encouraged to a high extent by Christians in southern countries. During the struggle years South African theologians developed, in dialogue and cooperation with struggle organizations in the political sphere and in civil society and also with other reli- gious and secular traditions, a vision of social and economic justice. They articulated this vision publicly and eloquently during the years of the anti-apartheid struggle. This communication of the vision was done in the media and in theological studies, declarations and even an official confession of faith.9 It would perhaps not be pretentious to say that theology did not only impact on the public opinion during those years, but that it also helped to prepare the way for the eventual articulation of this vision of social and economic justice in the South African Bill of Rights. Theology and the Fulfilment of Social and Economical Rights 129 5 For an outline of the constructive role of theology during and after apartheid see amongst others P Walshe ‘Christianity and the Anti-apartheid Struggle: The Prophetic Voice within Divided Churches’ in R Elphick and R Davenport (eds) Christianity in South Africa. A Political, Social and Cultural History (1997) at 383 – 399, and J de Gruchy ‘African Theology: South Africa’ in D Ford (ed) The Modern Theologians. An Introduction to Christian Theology in the Twentieth Century (1997) at 445 – 454 and N Koopman ‘Some Comments About Public Theology Today’ (2003) Journal of Theology for Southern Africa 1 – 19. 6 Typical arguments are: humans are sinners who can only talk about grace and privileges and not claims and rights; salvation is spiritual and private, and not political and economical. Therefore religious matters on the one hand, and political and economic matters on the other hand should be separated. 7 For an outline of the constructive role of theology in the development of the notion of human rights, see C Villa-Vicencio A Theology of Reconstruction: Nationbuilding and Human Rights (1992) and J de Gruchy Christianity and Democracy. A Theology for a Just World Order (1995), and Walshe (note 5 above) at 383 – 399. 8 See Villa-Vicencio (note 7 above) at 131 – 153. 9 The famous 1985 Kairos Document is one of the best examples of a theological declaration that opposed injus- tices. The document opposes so-called state and church theologies and opted for prophetic theology that spells out visions of an alternative society that cherishes justice. See The Kairos Document: Challenge to the Church: A Theological Comment on the Political Crisis in South Africa (1985). The former Dutch Reformed Mission Church even adopted a confession in which social and economic justice is described as not only a social and economic matter, but a moral matter, moreover, a matter of faith. See The Confession of Belhar (1986). 1 3 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Theology indeed made a crucial contribution to acknowledging social and economic justice issues as human rights issues. It contributed to the development of so-called second and third generation rights. The challenge for theology now is to explore ways of contributing to the ful- fillment, implementation and actual practicing of these rights; to develop theories, ways of see- ing and thinking, ways of public thinking, that foster the practical and concrete enforcement, implementation and fulfillment of these rights. Keeping the vision of social and economic jus- tice alive is important, ensuring the articulation of this vision in bills of rights is important. But exploring ways of ensuring that this vision be embodied now calls for our attention. This paper consequently considers the role of theology in developing theories that might enhance the fulfillment10 of social and economic rights11 and the eventual dawning of a more just society. The potential contribution of theology to the process of theory building that serves the fulfillment of social and economic rights is investigated with reference to the dialogue and cooperation of theology with three environments, namely broader society, the academy and reli- gious organizations, specifically churches.12 This threefold distinction is very helpful, though room should be left for the fact that the three realms are not neatly separated from each other. They do impact on each other, and some themes are addressed in all three though with differ- ent emphases and modes. The emphasis of dialogue and cooperation does not only build on the style in which theolo- gy was done by so-called struggle theologians in the apartheid era. It spells out the mode in which theology is to be done that seeks serious attention in a pluralistic society. The outline of these various dialogues and cooperations will hopefully verify this point. 10 Human rights scholar, A Gewirth ‘Are there any Absolute Rights?’ in J Waldron Theories of Rights (1984) at 92, offers a useful distinction on the different applications of human rights: ‘A right is fulfilled when the correlative duty is carried out, ie when the required action is performed or the prohibited action is not per- formed. A right is infringed when the correlative duty is not carried out, ie when the required action is not performed or the prohibited action is performed. Thus someone’s right to life is infringed when the pro- hibited action of killing him is performed, someone’s right to medical care is infringed when the required action of providing him with medical care is not performed. A right is violated when it is unjustifiably infringed, when the required action is unjustifiably not performed or the prohibited action is unjustifiably performed. And a right is overridden when it is justifiably infringed, so that there is sufficient justification for not carrying out the correlative duty, and the required action is justifiably not performed or the pro- hibited action is justifiably performed.’ 11 Economic and social rights are distinguished from so-called political and civil rights. In the first centuries of the development of human rights the emphasis was on the latter rights. During the second part of the twentieth century economic and social rights were increasingly emphasized, especially at initiative of so- called poorer southern countries. For the distinction between three generations of rights, namely first gen- eration (blue) rights, second generation (red) rights and third generation (green) rights, see J van der West- huizen ‘The Human Rights Debate in South Africa’ in K Nürnberger (ed) A Democratic Vision for South Africa. Political Realism and Christian Response (1991) at 471 - 487. The idea of generations of rights should not give the impression that the social, economic and environmental rights did not feature in the ear- lier phases of the development of human rights. However, they did not receive the same level of attention as the so-called first generation rights. 12 This threefold distinction is borrowed from North American Catholic theologian David Tracy who identi- fies the church, the academy and the broader society as the three publics, reference groups or social loca- tions that theology engages with. See his The Analogical Imagination. Christian Theology and the Culture of Pluralism (1981) at 3, 5. Tracy (at 21) is of opinion that all theology is in some meaningful sense church theology, ie ecclesial theology. Theology develops in a sense from within the church as both a pneumato- logical and sociological body. When he refers to the church as one of the publics of theology, he especially has this sociological nature of the church in mind. II Theology in Dialogue and Cooperation with Broader Society In investigating the role of theology in developing thinking that will enhance the fulfillment of social and economic rights, dialogue and cooperation with broader society is required. Dirkie Smit13 offers a very helpful description of modern democratic societies. He is of opinion that modern societies consist of four spheres, namely the political and economic spheres, as well as the spheres of civil society and public opinion formation.14 The political sphere focuses on the state, government, political power and the control and regulating of public life. The economic sphere entails aspects like the so-called autonomous market-economy, globalisation, ecology, science and technology. Civil society focuses on themes relating to the relationship between theology and, amongst others, the institutions, organiza- tions, associations and movements of civil society which, independently from the state and economy, strive to enhance the quality of life, satisfy the needs and foster the interests of peo- ple, change the nature of society and build the common good, that is a life of quality for all. Schools, legal bodies, cultural and sports clubs and the neighbourhood are all institutions of civil society. Sociologically speaking churches are part of civil society, albeit institutions with both a sociological and pneumatological character. The area of public opinion formation focus- es on themes like the nature of society, the common foundational values for society, common challenges and common priorities for society. The ensuing public opinion paves the way for jointly striving towards the common good.15 The dialogue and cooperation of theology with these spheres take place in appropriate modes. In this regard the typology of North American theologian James Gustafson16 is very helpful. He identifies four varieties of moral discourse which suggest four ways in which theol- ogy can engage with these spheres. The prophetic discourse takes on the form of indictment and a more utopian form. Indict- Theology and the Fulfilment of Social and Economical Rights 131 13 See D Smit ‘Oor die Unieke Openbare Rol van die Kerk’ (1996) Tydskrif vir Geesteswetenskappe 190–198. 14 Tracy (note 12 above) at 6 -14 divides the public of society into three spheres, namely the realm of the tech- noeconomic structure that deals with the organization and allocation of goods and services; the realm of the polity where the aim is to embody social justice in the traditions and institutions of society through the legitimate use of power and force, and the regulation of conflict within the rule of law. The realm of cul- ture which includes art and religion explores and expresses the meaning and values of individual, group and communal existence. 15 Smit’s distinctions coincide with the distinctions of Jürgen Habermas. For him the democratic public con- sists of four spheres. At its centre are government, the civil service, judiciary, parliament, political parties, elections and party competition. Outside this core system, but still belonging to the state is an inner periph- ery of institutions such as regulatory agencies with powers delegated by the state. The second public sphere, which is part of the outer periphery, is organizations that Habermas calls customers, ie business associa- tions, labour unions and private organizations. The third public sphere, which is also part of the outer periphery consists of organizations that he calls the suppliers, ie voluntary associations, churches, new social movements and public interest groups. Fourthly he makes room for the public opinion that is formed by the dialogue of public interest groups and professionals who, as the sensors of society, identify, draw attention to and interpret social problems and who, with the aid of the media, propose solutions and apply pressure that can bring forth change that will better the situation of especially the disadvantaged. See J Habermas Between Facts and Norms (1996). 16 See J Gustafson ‘An Analysis of Church and Society Social Ethical Writings’ (1988) 40 Ecumenical Review at 267 -278; ‘Varieties of Moral Discourse: Prophetic, Narrative, Ethical and Policy’ (1988) The Stob Lectures of Calvin College and Seminary; ‘Moral Discourse About Medicine: A Variety of Forms’ (1990) Journal of Medicine and Philosophy 125 -142. 1 3 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E ment points to the roots of moral or social problems. Utopian discourse evokes a hopeful vision. It proclaims an ideal state of affairs in the future and allures and motivates people towards its realization. In the narrative discourse stories and parables are told of significant events and of moral heroes in the community and tradition. These stories sustain common memory in a community. They shape the consciences, moral identities and characters of members of the community. More than a rigorous casuistic argument stories provide illumi- nation and help in the process of moral decisionmaking. The ethical or technical discourse uses philosophical and rigorous modes of moral argumentation. Logic, precise distinctions, precision in use of concepts like justice and rights and the identification of the rational grounds of autonomous ethics, which might be backed by Christian convictions which can be shared with non-believers, are typical features of this discourse. The policy discourse is the discourse of the policy and decision makers in society. They deal with questions like: what is desirable within the constraints of what is possible; do we have power to affect change, what are the time frames for the achievement of ends; do we have all the necessary information and knowledge? The policy discourse entails that we have to distinguish between matters of ethical principle and the inferences we draw for policy. We can be more certain about the first than the second. In the dialogue and cooperation of theology with the various spheres of society on the achievement of social and economic justice attention is to be given to all these discourses. The vision of an alternative society that energises and opens innovative possibilities should be spelled out.17 Clear critique should be voiced where injustices exist. The grass roots stories of poverty and suffering are to be heard, but also the stories of even smaller achievements and suc- cesses. The technical discourse is of immense importance. It suggests that it is not enough to spell out broad principles and visions of justice. The hard work of critical, scientific, interdisci- plinary and intersectoral analysis and deliberation which can lead to even preliminary solutions that are jointly reached is of crucial importance. Engagement with these various discourses paves the way for appropriate interventions in the policymaking processes on different levels of governance and authority in different spheres of society.18 In engaging these spheres it is important that theology resist the temptation to fulfill the role of being the only watchdog of society that just engages in the prophetic discourse of critique 17 Envisioning opens up creative, innovative and surprising possibilities that technical reflection alone cannot. Old Testament theologian Walter Brueggemann The Prophetic Imagination (1978) at 13 argues that envi- sioning, imagining, enables us to see new possibilities that are in contrast to the dominant gloomy before- hand possibilities. Vision creates hope in situation of despair and energy where people feel powerless. Vision, on the other hand, helps us to be clearly aware of the shortcomings of our endeavours and policies. Vision opens the door for courageous and constructive criticism. Various forms of the church help to devel- op this vision of an alternative society. North American theologian Stanley Hauerwas argues that ethicists function like artists. What they see determine not only their choices and actions but also who they are. We are and we do what we see. Vision determines ethics. See S Hauerwas Vision and Virtue: Essays in Christian Ethical Reflection (1974); Truthfulness and Tragedy: Further Investigations in Christian Ethics (1977); A Community of Character: Toward a Constructive Christian Social Ethic (1981); The Peaceable Kingdom: A Primer in Christian Ethics (1983) and various other works. 18 Theology’s dialogue and interaction with broader spheres of society occur mainly through the denomina- tional and ecumenical church. There are instances where theologians make direct input in their personal and professional capacities, eg in ethical committees of hospitals, ethical committees in the business and public media sectors as well as parliamentary portfolio committees. The bulk of inputs are however made through church bodies. The remarks made here are therefore also relevant to the section on the institutional church below. and indictment. In the same vein it is not responsible theology to merely spell out the vision of a good society.19 The road of partnership that institutions like the South African Council of Churches currently opt for is perhaps the most fruitful path to follow. In this cooperation it is important that theology not be co-opted by the agenda of the state.20 A guiding principle for this cooperation is to continually ask what the impact of dialogue, cooperation, compromises and policies are on poor and vulnerable people. One of the most cherished notions in Christian theology that Liberation Theology reminded us about during the 1960s to 1980s is the convic- tion that God is in special way the God of the poor, the destitute and the wronged. The acid test for our social and economic discourses, policies and priorities is the question on how they impact on the most vulnerable in society. Where the engagement of theology with political institutions, business and trade unions, sport and cultural bodies, schools and other organs of civil society, different forms of the mod- ern communication media, takes place within the parameters, modes and style outlined above, these encounters might prove to be fruitful for the quest of developing new ways of thinking about and new practices for the fulfillment of social and economic rights. III Theology in Dialogue and Cooperation with the Academy Tracy21 describes the academy as that public or social location of theology where serious, crit- ical scientific enquiry takes place with other academic disciplines. In its engagement with the academy theology is challenged to provide arguments that all reasonable people from diverse religious and secular traditions can recognize as reasonable. In this discourse appeals are made to universal faculties such as experience, intelligence, rationality and responsibility. Claims are stated with appropriate warrants, backings and rebuttal procedures. He also pleads that although theologians confess allegiance to a specific religious tradition or to a praxis movement bearing religious significance, they should abstract themselves from these faith commitments for the sake of critical analysis of religious and theological claims by outsiders and by those who belong to the tradition. There are of course many theologians who would oppose Tracy on this point. They would argue that you need not abstract and distance yourself from your faith com- mitments in order to do critical and honest introspection into the cognitive claims of your tra- dition. Such a withdrawal for the sake of honest scientific enquiry is viewed as being dishonest. With an appeal to Thomas Kuhn’s paradigm theory Dutch systematic theologian Gijsbert van den Brink,22 supports the later developments in the philosophy of science discourse which make room for adherence to particularistic commitments in the scientific endeavour. Although Theology and the Fulfilment of Social and Economical Rights 133 19 For an analysis of the prophetic task of churches in the context of poverty in a democratic society see N Koopman ‘Freedom of Religion and the Prophetic Role of the Church’ (2002) 43 NGTT 237 – 247 and also my ‘Let the Plight of the Poor be Heard. Prophetic Speaking about Poverty Today’ (2004) 45 NGTT 440 – 451. 20 For a description of the danger of Constantinianism see N Koopman ‘Tussen die Duiwel van Konstantinisme en die Diep Blou See van Sektarisme – Kerk en Staat Verhoudinge in Post-apartheid Suid- Afrika’ (2001) 43 NGTT 135 – 146. The concept ‘Constantinianism’ derives from the era since Caesar Constantine when the once persecuted Christian religion became state religion after the conversion of Constantine to Christianity in the fourth century. The concept refers to any co-option of the church by the agenda of the state. 21 See Tracy (note 12 above) at 56 – 59. 22 See G van den Brink Een Publieke Zaak. Theologie tussen Geloof en Wetenskap (2004). 1 3 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E he reckons that there is something to be learned from older important philosophies of science,23 it remains his conviction that these approaches do not take the significant and determinative particularistic influences like faith commitments of scientists seriously enough. In the encounter with the academic public theology makes the choice for scientific reflection, for making faith convictions as far as possible rationally accessible to all reasonable people, for constructing arguments that pass the test of coherence, consistency and logical reasoning. However, theology does not have to distance itself from its faith commitments, but takes care that such commitments do not exclude scientific scrutiny. The age-old Christian notion of fides quaerens intellectum (faith seeking understanding) that Anselm of Canterbury framed in the 11/12th century needs fresh application in this dialogue of theology with the academic public. Against this background sketched in the previous paragraphs some suggestions can be made about the contribution of theology in the dialogue and cooperation with the academy. A first contribution of theology might be to help dialogue partners to view the challenge of the implementation of human rights not only as a political, social, economic, legal, philosoph- ical and sociological challenge but as a moral challenge. Morality has to do with the wellbeing, happiness and wholeness of human beings and other creatures. Something is morally good when it serves this wellbeing and it is morally bad if it does not.24 If theology embarks on this endeavour it strengthens those in other disciplines who already view the challenge of social and economic justice as a moral challenge. Some theologians are of the opinion that the contribution of theology to social-ethical and economic-ethical challenges is merely to help portraying these as ethical challenges and to pro- vide a meaning-giving framework that is based in religious or secular belief systems, and that serves to motivate people to participate in the quest to address these challenges. Other theolo- gians, however, are of opinion that theology indeed can make a unique contribution to the con- tents of the debate.25 I am of the opinion that theology might enrich the contents of the discourse on the imple- mentation of human rights. Theology might be able, for instance, to assist the discourse in reaching thicker descriptions of justice. Elsewhere26 I described various forms of justice and 23 Van den Brink reasons that despite their weaknesses older philosophies of science still pose some important challenges. Logical positivism challenges us to ensure that cognitive meaningful statements be verifiable as far as possible; confirmationism teaches us that it is much more difficult to confirm so-called non-existence statements then existence statements; the falsification theory of Karl Popper challenges us to open ourselves to criticism, to continuous disturbance and critical opposition by researchers who do not just take our posi- tions for granted. See Van den Brink (note 22 above) at 219–221. 24 For a definition of morality in terms of this notion of security and wellbeing, see B Birch and L Rasmussen Bible and Ethics in the Christian Life (1989) at 38-39. 25 For an extensive discussion of these two opposing views regarding the contribution of religion and theolo- gy to ethical challenges see N Koopman ‘The Role of Tradition in Moral Decisionmaking and Moral Consensus’ (2004) 45 NGTT 838 – 848. In this article I discuss the so-called liberal position of Dutch schol- ar Harry Kuitert who reckons that religion and theology do not contribute to the contents of morality, but that it merely serves as protector, feeder and sustainer of morality, and as motivator for morally good liv- ing. I bring this position in dialogue with the so-called postliberal position of Stanley Hauerwas who reck- ons that religion and theology fulfill a crucial role with regard to the contents of morality since morality is in essence agent, narrative and community-dependent. 26 For a brief outline of utilitarian, libertarian, communitarian and egalitarian theories of justice and the theo- ry proposed by theologian Karin Lebacqz, see N Koopman ‘Justice and Land Reform’ (2004) paper read at the international conference on land reform in Utrecht, Netherlands, and accepted for publication in Studies in Reformed Theology. Karin Lebacqz expresses appreciation for Rawls’ emphasis of the least advantaged, Nozick’s valuing of freedom, the emphasis of the priority of the poor in the 1986 pastoral letter on eco- then opted for an understanding of justice as compassionate justice. Hereby I mean that justice has two dimensions that can be derived from two different words for justice in Hebrew. Tsedaqah refers to the sacrifice that is required to transform people into just people and into people who are also willing to make sacrifices for the sake of the other. Mispat refers to foren- sic justice that is enforced by legal measures. These measures would include contemporary notions like human rights. Compassionate justice therefore would argue that legal justice and the ethos of compassion and sacrifice cooperate to bring forth a life of justice and dignity for all humans and the environment. Making the notion of sacrifice part of the discourse about social and economic justice might enhance our progress towards fruitful solutions. The impli- cation of the notion of sacrifice for current and potentially new political, economic and legal measures of reparation for the sake of higher levels of equilibrium, might be an important part of the discourse on social and economic justice. IV Theology in Dialogue and Cooperation with Churches The dialogue and cooperation of theology with churches is very important. The mutual impact of theology and this realm is also prevalent as with the two other publics. For various reasons churches do have the potential to make a significant contribution to the realizing of social and economic rights. The potential of churches is amongst others reflected in the high percentage of people belonging to religions in South African society. The dawning of modernisation in its institutionalized forms of democratic state, market-driven economy, civil society and sophisti- cated and influential public media, as well as its Zeitgeist of individualism and rationalism have not lead to secularization in South Africa. On the contrary, most recent statistics indicate that more than 90% of South Africans belong to one or the other form of religion. The percentage of Christians rose during the last few years to almost 80%.27 It should, however, be noted that although modernization has not been accompanied by sec- ularization, it has affected religion in terms of modernity’s central feature of the fragmentation of society into various autonomous life spheres. This development has created a high poten- tial for the privatization of religion. So although people might still be religious, religion is removed from the various public spheres of society. The potential of such a privatized religion to impact positively on society is very low. On the contrary, private religion does not only imply withdrawal from society, it often also entails destructive forms of religion and morali- ty, eg fundamentalism, intolerance, moral absolutism and judgementalism. When we embark on the investigation of the role of churches in the advancement of social and economic rights these facts should be taken into consideration. Whilst doing this we should also always be Theology and the Fulfilment of Social and Economical Rights 135 nomic justice of the North American Catholic Bishops, and the recognition of the epistemological privilege of the poor, ie God is only known in the doing of justice by liberation theologian Jose Miranda. Based on these positions she constructs her own position that calls for more attention to the narratives of the mar- ginalized in the discourse about social and economic justice. 27 See in this regard H Hendriks The Future of the Church, the Church of the Future (2004) Unpublished Inaugural lecture, University of Stellenbosch. This trend of growth in religiosity is not limited to South Africa. Peter Berger has replaced his secularization thesis with a de-secularisation thesis. After arguing since the sixties of the previous century that secularization will spread all over the world and that religion will be increasingly marginalized he now observes growth of religiosity in all parts of the world, especially in South America, Africa and Asia. Although Western Europe is highly secularized he is of opinion that religion survives in non-institu- tional form in some of the Western European regions. See Berger (note 4 above) at 1-18. 1 3 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E aware of the ambiguous history of religion in social matters as described earlier in this article. The challenge to theology is to assist and guide churches in discovering and actualizing their constructive potential with regard to the challenge of the realization of social and economic rights. In investigating the role of churches in the fulfillment of social and economic rights, Dirkie Smit’s identification of six forms of the church might be helpful.28 The first four forms consti- tute the church as institution. They are worship services, local congregations with their various practices, denominations and ecumenical bodies. The other two forms constitute the church as organism, namely individual Christians in their normal daily roles in family, work, neighbour- hood etcetera, and individual Christians in voluntary organizations. (a) Worship services have the potential to transform people into just people who can enhance the social and economic transformation of society. The impact of worship on ethics, also economic ethics is increasingly treasured by a growing number of authors. In a recent pub- lication American theologians Stanley Hauerwas and Samuel Wells pleaded for an end to the separation of worship and ethics that developed under the influence of Immanuel Kant. From different perspectives various authors demonstrate how worship impacts on our eth- ical choices, policies and moral living in various walks of life, specifically in the area of social and economic justice.29 The transformative, subversive and revolutionary potential of worship services are investigated by an increasing number of theologians. Those partic- ipating in worship see alternative realities that are in conflict to the prior realities of a world where injustice reigns supreme and they are transformed to participate in the building of these alternative realities. Those who pray for daily bread, see a world where there is bread for everyone and they participate in creating such a world. (b) Various practices of congregations also enhance the fulfillment of social and economic rights. The definition of practices according to American theologians Craig Dykstra and Dorothy Bass30 is very helpful. They define practices as follows: ‘By “Christian practices” we mean things Christian people do together over time to address fundamental human needs in response to and in the light of God’s active presence for the life of the world.’31 Practices refer to cooperative and meaningful human endeavours in which certain beliefs, virtues and skills are entwined with certain behaviours, relationships and symbols.32 For the purpose of this article I briefly refer only to two important Christian practices that impact constructively on the quest for economic justice. Stanley Hauerwas writes clearly about the role of baptism and eucharist as Christian practices that impact on public life, specifically on the quest for social and economic justice. He states that baptism and eucharist are not only motives or causes for our social work, they are our effective social work. In them we see most clearly the marks of God’s kingdom in the world.33 Elsewhere he describes how the celebration of the eucharist in the United Methodist congregation of 28 See D Smit ‘Oor die Kerk as Unieke Samelewingsverband’ (1996) Tydskrif vir Geesteswetenskappe at 119 – 129. 29 See S Hauerwas and S Wells (eds) The Blackwell Companion to Christian Ethics (2004). 30 See C Dykstra and D Bass ‘A Theological Understanding of Christian Practices’ in M Volf and D Bass Practicing Theology. Beliefs and Practices in Christian Life (2002) at 13-32. 31 See Dykstra and Bass (note 30 above) at 18. 32 See Dykstra and Bass (note 30 above) at 19-21. 33 See S Hauerwas The Peaceable Kingdom. A Primer in Christian Ethics (1983) at 108. South Band, Indiana, has lead to meal sharing with poor members of the neighbourhood that made it clear ‘that we were not simply another social agency that does a little good, but a people called out to witness to God’s presence in the world. That presence which comes in the meal we share sustained that church’s ability to be present in that neighbour- hood as a symbol that all was not lost’.34 (c) Denominations and ecumenical bodies can embark on the so-called priestly task of show- ing solidarity with the marginalized and the wronged. This care, compassion and solidari- ty are expressed in the various diaconal services of churches, amongst others homes for the aged, disabled, orphans (especially the growing number of aids related orphans), day care centres, crèches, after school care centres for children whose parents are working long hours, church schools, soup kitchens and other feeding schemes, shelters for refugees and victims of disasters like burnt down informal settlements, employment creation initiatives and entrepreneurial courses and initiatives. Many of these initiatives are undertaken in cooperation with role players in other spheres of society, amongst others governmental institutions, businesses, trade unions and even the media. These priestly practices of soli- darity and care are not small endeavours to fulfill social and economic rights in humble and preliminary ways. This direct involvement in the plight of those who do not experience humane living conditions also constructively inform, influence and inspire thinking on the fulfillment of social and economic rights and justice. Denominations and ecumenical bodies also fulfill the prophetic task of clearly spelling out the vision of a good society where people enjoy a life of dignity and justice. This prophetic task also involves a critique of society where the conditions of this good society are not met. Through declarations of faith and even confessions of faith churches spell out this vision and offer this constructive critique. A very recent example of the involvement of ecumeni- cal church bodies on this level is the adoption of a processus confessionis, that means engaging in a process of confessing faith, on economic justice by the World Alliance of Reformed Churches, the Lutheran World Federation and the World Council of Churches. This processus confessionis is the initiative of the Southern African Alliance of Reformed Churches (SAARC) in which Stellenbosch theologian Russel Botman, who was then presi- dent of SAARC, played a pivotal role.35 The thinking on matters of social and economic justice in many Reformed Christians in Southern Africa, as well as in other parts of the world are increasingly influenced by the Confession of Belhar. In October 2004 Christians from Reformed churches in South Africa, other African countries, Belgium, Germany, The Netherlands, Sweden and the USA met in Stellenbosch at the Beyers Naudé Centre for Public Theology for an international conference on the theme Confessing and Embodying Belhar and Barmen Today. The theme of this conference suggests that Christians view social and economic justice as a faith issue. This means to confess faith in God is to work for social and economic justice.36 Churches on denominational and ecumenical level also have the responsibility to intervene Theology and the Fulfilment of Social and Economical Rights 137 34 See S Hauerwas Christian Existence Today. Essays on Church, World and Living in Between (1995) at 124. 35 For a discussion of this processus confessionis, see N Koopman ‘ ‘‘… in a special way the God of the poor, the destitute and the wronged…”. A Basic and Neglected Conviction of (Reformed) Theology?’ in P Coertzen (ed) 350 Years Reformed 1652-2002 (2002) 252 -260. 36 The Confession of Belhar (note 9 above). The Barmen Declaration is a confessional document that was adopted in 1934 by the Confessing Church in the city of Barmen, Germany. The Christians in this Con- fessing Church opposed the growth of Nazism in Germany. 1 3 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E in public policy processes.37 It is crucial to help ensure that laws are formulated that enhance the vision and ideals of justice and dignity spelled out in the Bill of Rights. For this purpose various denominations and ecumenical bodies have already established public pol- icy liaison offices at national parliament in Cape Town, amongst others the South African Council of Churches, the South African Catholic Bishops Conference, the Dutch Reformed Church as well as the Baptist Church. These bodies do not only influence the public policy processes through presentations to the portfolio committees of parliament. They also con- scientise and inform local congregations and individual Christians on public policy matters, amongst others specific issues of social and economic justice. One of the remarkable achievements of these offices is the annual Peoples Budget initiative with trade unions and other institutions of civil society. These partners undertake a critical evaluation of the national budget in terms of its impact on poor people. They also suggest constructive alter- natives. Denominational and ecumenical bodies are also challenged to even inform local worship services regarding issues of social and economic justice through appropriate infor- mation and guidelines for liturgies.38 (d) Individual Christians in their normal daily roles and in voluntary organizations are equipped by the institutional church to participate in appropriate ways in various sectors of society in the fulfillment of social and economic rights and the achievement of social and economic justice. They are equipped with regard to moral decisionmaking39 on economic matters as well as the embodiment of central economic-ethical values. Without pretending to become economists it is important to have some orientation regarding economic matters in order to be able to impact in an informed and responsible way on the direction these mat- ters are taking at home, school, neighbourhood, local government, business, trade unions, churches and all walks of life. Proper utilization of the media, amongst others newspapers, magazines, radio, television, internet, art and music can enhance this process of influencing the thinking and practices of people regarding social and economic justice matters. Individual Christians in their various affiliations also participate in advocacy and protest 37 North American theologian, JP Wogaman Christian Perspectives on Politics (2000) at 264 – 273 sum- marises the public responsibility of churches as follows: Influencing the public ethos, educating the church’s own membership about particular public issues, participating in advocacy and lobbying initiatives, sup- porting specific political parties and candidates with positive records on civil rights and other social justice issues, encourage lay Christians to establish a Christian political party if circumstances warrant this move, engage in truly extreme situations of oppression in civil disobedience and participation in even violent rev- olutions. The contentious nature of some of these proposals are obvious. 38 In 2004 the Beyers Naudé Centre for Public Theology was requested by the South African Council of Churches to do research on the response of South African churches to the arms deals of the South African government during the first decade of democracy. These findings were tabled at an international conference on the international arms trade in Sweden. One of various suggestions was that ecumenical bodies like the South African Council of Churches provide local congregations with guidelines for liturgies on human secu- rity which entails the building of social and economic justice and peace. During the Anti-apartheid struggle these liturgies played a crucial role in influencing and transforming the thinking of people regarding mat- ters of social and economic justice. See in this regard N Koopman ‘Defence in a Democracy. A Church Perspective on the Postapartheid Defence Review Process’ in K Haglind (ed) Arms Trade. Final Report from the 2nd Ecumenical Conference in Gothenburg (2004). 39 Decision making occurs at the hand of three classical approaches to moral decisionmaking, namely the deontological and teleological as well as virtue approaches to ethics. For very helpful orientations to vari- ous approaches to moral decisionmaking see amongst others M Baron, P Pettit and M Slote Three Methods of Ethics: A Debate (1999); P Singer (ed) A Companion to Ethics (2002); R Lovin Christian Ethics. An Essential Guide (2000). activities for the sake of the materialisation of social and economic justice. These actions which are mainly the initiative of civil society organizations can occur on local, provincial and national levels. Due to the astronomic developments in the area of information tech- nology such actions can take on international dimensions. The protest of civil society in 2003 against the war in Iraq is a very good example of a joint international campaign of civil societies from various parts of the world. Such international actions are crucial in the light of the ambiguous effects of economic globalisation. Individual Christians contribute to ways of thinking and practices that enhance the ful- fillment of social and economic rights by embodying the values that they are campaigning for. The institutional church, through its worship services, congregational practices, denom- inational and ecumenical policies, declarations, confessional statements and public actions and witnesses, contributes to the transformation of individual Christians into people who live with specific virtues. According to North American theologian J Philip Wogaman a virtue is the tendency and predisposition to be and to act in accordance with goodness.40 Virtues are incarnated, embodied, practiced values.41 Where these virtues, with their per- sonal and public dimensions, are cherished and developed,42 significant impact is made on the development of theories and practices that enhance the fulfillment of social and eco- nomic rights. V Conclusion The quest for theories that seek the fulfillment of social and economic rights and the restora- tion of a life of dignity for all is an act of responsibility. The ethics of responsibility gained momentum in the midst of the immense suffering due to amongst others the two destructive world wars of the twentieth century. Political scientists, lawyers, economists, philosophers and theologians joined the search for just, peaceful and sustainable societies where the life of cur- rent and future generations could flourish. North American theologian Helmut Richard Niebuhr43 joined this quest. For him responsibility starts with the question: what is going on Theology and the Fulfilment of Social and Economical Rights 139 40 See J Wogaman Christian Moral Judgment (1988) especially chapter 2. 41 The Christian tradition formulated seven virtues. Four of them are borrowed from Greek philosophical thinking, specifically from Aristotle, and are called the cardinal virtues. Justice entails that people embody fairness, commitment to a life of equality, dignity and and joy for all. Just people are even willing to sacri- fice for the sake of the other. The other three cardinal virtues are temperance, discernment or wisdom, and fortitude or courage. The three theological virtues that complete the list of seven Christian virtues are faith, hope and love. All these virtues impact on a life of social and economic justice and dignity for all. For very helpful accounts of the virtues see besides the works mentioned above about approaches to moral deci- sionmaking also S Hauerwas and C Pinches Christians among the Virtues. Theological Conversations with Ancient and Modern Ethics (1997) and N Richardson ‘Ethics of character and community’ in C Villa- Vicencio and J de Gruchy (eds) Doing Ethics in Context. South African Perspectives (1994) 89 - 101. 42 Recently much work is done in the field of moral and virtue formation. Both the theological and anthro- pological dimensions of these processes are investigated. For a general orientation to the work of moral for- mation see N Koopman and R Vosloo Die Ligtheid van die Lig. Morele Oriëntasie in ‘n Postmoderne Tyd (2002). For a very helpful description of the various modes of moral formation, see the important and famous work of Roman Catholic Dutch theologian J van der Ven Formation of the Moral Self (1998). He identifies seven modes of moral formation, namely discipline, socialization, value transmission, value clar- ification, moral development, emotional development and character formation. 43 See H Niebuhr The Responsible Self. An Essay in Christian Moral Philosophy (1978) especially 12 – 19. 1 4 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E around us? What is happening around us? According to him Christians would add the ques- tion: what is God busy doing in our world? Decades later social scientists in the USA like Robert Bellah and his co-authors would reason in the same vein and argue that democracy can- not succeed if there are not people who pay attention, people who are aware and conscious of what is going on around them.44 Still later the South African anti-apartheid struggle gained momentum when people like Steve Bantu Biko, who is hailed as the father of the Black Consciousness Movement, embarked on an intentional process of conscientisation, of making people aware of not only the oppressive dimensions of their reality, but also of the liberative potential in that reality.45 Three decades later scholars from different disciplines participate in the research project on the enforcement of social and economic rights of which this book is a product. Thereby they embark on this first step of responsible living. They pay attention and see that whilst the so- called first generation rights of the treasured South African Bill of Rights enjoy much attention in public discourse and even in court cases, the so-called second and third generation social and economic rights are limited to the margins of the public discourse. They see that lastmentioned rights are not enforced to the same extent as the former rights. In dialogue with each other they seek ways of addressing this challenge. They strive to build theories that will hopefully assist South African policy makers in different public spheres as well as individual South Africans in all walks of life to see what is going on around them, to pay attention and to address the immense challenges with creativity and innovation. Theology is privileged to participate in this quest. 44 See R Bellah et al Habits of the Heart. Individualism and Commitment in American Life (1985) and also R Bellah et al The Good Society (1991). 45 For his writings on the insights of the Black Consciousness Movement, see S Biko I Write What I Like (2004). The Value of Human Dignity in Interpreting Socio-Economic Rights* S A N D R A L I E B E N B E R G H Oppenheimer Chair for Human Rights, Stellenbosch University …Without the ability to secure the immediate needs of the present, the future is lit- tle more than a far-off possibility, remote both in perception and in reality…** I Introduction The inclusion of socio-economic rights as justiciable rights in the Bill of Rights of South Africa’s Constitution affirms the critical importance of material conditions to human survival and devel- opment.1 In their seminal article, arguing for the constitutional protection of socio-economic rights in South Africa, Craig Scott and Patrick Maklem argued as follows: …Perhaps the strongest reason for including a certain number of economic and social rights is that by constitutionalising half of the human rights equation, South Africans would be constitutionalising only part of what it is to be a full person. A constitution containing only civil and political rights projects an image of truncated humanity. Symbolically, but still brutally it excludes those seg- ments of society for whom autonomy means little without the necessities of life…2 Socio-economic rights are not valued as commodities, but because of what they enable human * Earlier versions of this paper were read at the conference of the SA Journal on Human Rights, ‘Twenty Years of Human Rights Scholarship and Ten-Years of Democracy’ (5 – 7 July 2004), and at the Stellenbosch Institute for Advanced Study (STIAS) seminar on ‘Theories of Social and Economic Justice’ (30 – 31 July 2004). This article first appeared in (2005) 21 SAJHR 1 – 31 and is re-published with kind permission of S Liebenberg, I Currie (editor of SAJHR) and Juta & Co. Participants at both the aforesaid events provid- ed valuable comments and suggestions for which I am indebted. I am also grateful for the comments and insights of my colleagues, André van der Walt and Lourens du Plessis, as well as the suggestions received from the SAJHR editors. Finally, I would like to thank Beth Goldblatt for challenging me to think critical- ly about the limits of human dignity in advancing a transformative constitutional jurisprudence. ** Per Arbour J in Gosselin v Quebec (Attorney General), 2002 SCC 84 at para 392. 1 The preamble of the Constitution of the Republic of South Africa Act 108 of 1996 [hereafter ‘the Constitution’] proclaims that it was adopted with the purpose (amongst others) to ‘[i]mprove the quality of life of all citizens and free the potential of each person’. 2 ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 Univ of Pennsylvania LR 1, 29. 1 4 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E beings to do and to be.3 If basic subsistence needs are not met, humans face severe threats to life and health. But, in addition, such deprivation impedes the development of a whole range of human capabilities, including the ability to fulfill life plans and participate effectively in politi- cal, economic and social life.4 It also deprives society of the contributions of all its members.5 Thus both the individual and society are impoverished by our collective failure to ensure living conditions worthy of the dignity of people as both individual and social beings.6 As justiciable rights, socio-economic rights must be interpreted in the context of concrete cases. The courts must determine how much must be provided, to whom, at what pace and in what order of priority. In order to do so, they must explicate the underlying values that guide its interpretation. In so doing, the Court also affirms the values constituting our post-apartheid society.7 3 Martha Nussbaum has provided an influential philosophical justification for constitutional principles aimed at ensuring the conditions for the development and exercise of human capabilities: See particularly M C Nussbaum Women and Human Development – The Capabilities Approach (2000) [hereafter ‘Women and Human Development’]. Her approach focuses ‘on human capabilities, that is, what people are actually able to do and to be – in a way informed by an intuitive idea of a life that is worthy of the dignity of the human being’: Nussbaum (2000) 5. On the relationship between capabilities and human rights, see Nussbaum (2000) 96 – 101; and Nussbaum ‘Capabilities, Human Rights and the Universal Declaration’ in B H Weston & S P Marks (eds) The Future of International Human Rights (1999) 25 - 64. In development economics, the capa- bilities approach to quality of life assessments was pioneered by Amartya Sen through a range of works, including his collaboration of the Human Development Reports of the United Nations Development Programme (UNDP). See, eg, ‘Equality of What’ in A Sen Choice, Welfare and Measurement (1982) 353 – 369, and his recent work Development as Freedom (2001). For Sen, the goal of development should be to expand the capabilities of persons ‘to lead the kind of lives they value – and have reason to value’: Development as Freedom (2001) 18. Nussbaum discusses the differences between her and Sen’s ‘capabilities’ theory at 11 – 15 of Women and Human Development. However, both view the ‘capabilities’ approach as more appropriate to quality of life assessments in human development than many of the traditional alterna- tives. Nussbaum discusses the defects of standard approaches such as GNP per capita, utilitarian approaches (which ask about the total or average utility of the population, as measured by expressions of satisfaction), and approaches focusing on basic resource distribution in Women and Human Development (at 59 – 70). 4 For an account of the impact and experience of poverty in South Africa, see J May Poverty and Inequality in South Africa: Report prepared for the Office of the Executive Deputy President and the Inter-Ministerial Committee for Poverty and Inequality (PIR Report) (1998). See particularly the experiences of poverty doc- umented by The South African Participatory Poverty Assessment: ‘The Experience and Perceptions of Poverty’, Data Research Africa Report (SA-PPA) cited on pp 3 – 5 of the PIR Report. These include: alien- ation from the community, emotional stress and anxiety, food insecurity, the impact of time-consuming domestic tasks particularly for poor women, overcrowded living conditions with the associated loss of pri- vacy, and an increased exposure to violence. The impact of a lack of access to basic services and productive resources such as land on people’s life chances is also vividly illustrated in the Report of the National ‘Speak Out on Poverty’ Hearings convened by the Commission for Gender Equality, the South African Human Rights Commission and the South African NGO Coalition from March – June 1998: D Budlender The People’s Voices (1998). 5 Sen expresses this reciprocal relationship as follows: ‘These capabilities can be enhanced by public policy, but also, on the other side, the direction of public policy can be influenced by the effective use of partici- patory capabilities by the public’: Development as Freedom (note 3 above) 18. 6 Jennifer Nedelsky describes human beings ‘as both essentially individual and essentially social creatures’: ‘Reconceiving Rights as Relationship’ (1993) 1 Review of Constitutional Studies 1, 8. In National Coalition for Gay & Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC), Sachs J refers to the con- stitutional recognition of the associational dimensions of human life as follows: ‘While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times’ (at para 117). See also Bernstein v Bester 1996 (2) SA 751 (CC) at para 67. 7 In Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC), O’Regan J describes the role of the constitutional value of human dignity in Human dignity as a right and value has played a central role in the Court’s human rights jurisprudence.8 The Court has also invoked dignity as the central value informing its approach to the interpretation of socio-economic rights, particularly the reasonableness standard of review for the positive duties imposed by these rights.9 Thus Yacoob J stated in Groot- boom: …It is fundamental to an evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of State action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the State in all circumstances and with particular regard to human dignity. In short, I emphasise that human beings are required to be treated as human beings…10 This article explores the value of human dignity in interpreting socio-economic rights.11 My focus is primarily on the positive duties imposed on these rights to facilitate and provide access to social benefits.12 It examines the critiques that have been made of human dignity as a guiding value in the context of South Africa’s equality jurisprudence. In response to these critiques the article seeks to explore traditions in the interpretation of human dignity that can make a positive contribution to our evolving jurisprudence on socio-economic rights. By focusing on human dignity, I am not claiming that dignity is the only value that explicates Human Dignity in Interpreting Socio-Economic Rights 143 constituting post-apartheid society: ‘The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings’ (at para 35). 8 In Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) the Court held that the value of human dignity ‘is a value that informs the interpretation of many, possibly all, other rights’ (at para 35). See, for example, S v Makwanyane & Another 1995 (3) SA 391 (CC) at para 144 (per Chaskalson P) and at para 328 (per O’Regan J) (death penalty); August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) para 16 (per Sachs J) (right to vote); and the range of equality cases in which dignity is a central factor in identifying ‘unfair’ discrimination: eg Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at paras 50 – 51; National Coalition for Gay & Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC) at paras 15 – 28 (per Ackermann J), and paras 120 – 129 (per Sachs J). 9 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 38, 41. 10 Note 9 above, para 83. On the relationship between human dignity as an independent right, the other rights specifically entrenched in the Bill of Rights, and the value of human dignity, see Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35. 11 On the relationship between human dignity as an independent right, the other rights specifically entrenched in the Bill of Rights, and the value of human dignity, see Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35; Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (1) BCLR 78 (CC) para 21. 12 Section 7(2) of the Constitution places an overarching duty on the State ‘to respect, protect, promote and fulfil’ the rights in the Bill of Rights. This signals that the rights in the Bill of Rights impose a combination of negative and positive duties. For a discussion of these duties in the context of socio-economic rights, see S Liebenberg ‘The Interpretation of Socio-Economic Rights’ in M Chaskalson et al Constitutional Law of South Africa (2nd edition 2004) ch 33, 6 - 7; see also The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria Communication No 155/96 October 2001, African Commission on Human and Peoples’ Rights, paras 44 – 47. 1 4 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E our commitment to socio-economic rights.13 There is an important body of literature that explores the significance of a number of other values in relation to socio-economic rights.14 The core foundational values of human dignity, freedom and equality are in any event highly inter- related.15 I focus on human dignity because of the important role it has played in the Court’s human rights jurisprudence in general, and because its role in the interpretation of socio-eco- nomic rights has been relatively unexplored. I also seek to develop a concept of human dignity that can help us identify deficiencies in the Court’s current socio-economic rights jurisprudence and illuminate how the jurisprudence should be developed to constitute a stronger response to socio-economic deprivation. II Critiques of Dignity as a Value in Constitutional Adjudication A number of critiques have been made of human dignity as a guiding value in constitutional adjudication, particularly in relation to equality jurisprudence and the test for unfair dis- crimination.16 However, these critiques are also relevant to human dignity as a guiding value in socio-economic rights jurisprudence and for this reason they require careful consideration here. Three major critiques of dignity as a value in human rights adjudication have been articulated. The first relates to the alleged indeterminacy of human dignity as a normative concept. Thus it has been argued that dignity is too vague and multifaceted a concept to serve us well as a guiding 13 The Court has affirmed that all three foundational constitutional values are implicated in a denial of socio- economic rights: ‘All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in Chapter 2. The realisation of these rights is also key to the advance- ment of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential’: Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 23. See also Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) para 8. 14 See, for example, N Haysom ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’ (1992) 2 SAJHR 451 (a basic floor of socio-economic rights is required to guarantee a minimum degree of civic and political participation). For a similar argument in the US context, see: FI Michelman ‘Welfare Rights in a Constitutional Democracy’ (1979) 3 Wash Univ LQ 659 (socio-economic are necessary prereq- uisites of effective participation in representative democracy); P de Vos ‘Grootboom, The Right of Access to Housing and Substantive Equality as Contextual Fairness’ (2001) 17 SAJHR 258 (the right to equality and socio-economic rights are ‘two sides of the same coin’ in that they seek to achieve ‘…a specific con- textual form of equality as the realisation of particular social and economic rights’ at 263, 265). For a dis- cussion of the shortcomings and theoretical limitations of an equality-based theoretical justification of socio-economic rights: see A van der Walt ‘A South African Reading of Frank Michelman’s Theory of Social Justice’ in H Botha, A van der Walt, and J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 163 at 174 – 179. Nonetheless, as this paper illustrates, there are important insights in equality jurisprudence regarding the application of human dignity to adjudicate the constitutionality of peo- ple’s exclusion from social benefits. 15 Kriegler J refers to human dignity, equality and freedom as ‘conjoined, reciprocal and covalent values’ which are ‘foundational’ to South Africa: S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) at para 41. 16 The Court’s approach to section 9 of the Constitution is set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at paras 50 – 53. Dignity plays an important role both in the identification of unlisted pro- hibited grounds of discrimination and in the factors for determining whether the discrimination is unfair: see Harksen paras 49 and 51. value in equality jurisprudence.17 The second critique asserts that human dignity as a value is irrevocably linked with protection of freedom and autonomy. As such, it serves to discourage the positive, redistributive measures needed to remedy conditions of material inequality and disad- vantage.18 Cathi Albertyn and Beth Goldblatt have most forcefully articulated the final critique (which is closely related to the second) in the context of equality jurisprudence. They argue that the reliance on the value of dignity in the test for unfair discrimination promotes a narrow focus on individual personality issues as opposed to ‘a group-based understanding of material advan- tage and disadvantage’.19 It could result in ‘an individualised and abstract conception of equality divorced from actual social and economic disadvantage.’20 Thus the need to redress systemic pat- terns of inequality and disadvantage are obscured by focusing on individual personality issues related to subjective feelings of self-respect and self-worth. If dignity as a value is inextricably aligned with negative liberty and individual personality issues, it will be inimical to the development of a transformative socio-economic rights jurispru- dence. In the next section I develop an argument that there are positive traditions associated with the interpretation of human dignity that can add value to our socio-economic rights jurisprudence. In so doing, I am not seeking to deny the dangers of a regressive deployment of human dignity in the interpretation of rights such as equality, and indeed, socio-economic rights. Certainly, I believe that there is a case to be made that the Court has not engaged suffi- ciently with the value of equality in its section 9 jurisprudence.21 My concern is to examine how the value of human dignity can enrich, rather than impoverish, our evolving jurisprudence on socio-economic rights. III Human Dignity as a Value Dignity has deep roots in Kantian moral philosophy that affirms the inherent worth of human beings. According to the Kantian imperative human beings should be treated ‘never simply as a Human Dignity in Interpreting Socio-Economic Rights 145 17 For example, Davis alludes to the ‘multifaceted meanings’ of dignity, and argues that the Court ‘has given dignity both a content and scope that make for a piece of jurisprudential Legoland – to be used in whatev- er form and shape is required by the demands of the judicial designer’: D Davis ‘Equality: The Majesty of Legoland Jurisprudence’ (1999) 116 SALJ 398 at 413. See also in this regard D Davis Democracy and Deliberation (1999) at 69 – 95. 18 This critique is discussed by Susie Cowen in her article defending the use of the value of human dignity in South African’s equality jurisprudence: ‘Can “Dignity” Guide South Africa’s Equality Jurisprudence?’ (2001) 17 SAJHR 34 at 51 – 58. 19 C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248 at 257 – 258, 272. Similar arguments in sup- port of the development of a more substantive approach to equality were made by the Centre for Applied Legal Studies in their amicus intervention in National Coalition for Gay & Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC): see paras 58 – 64 (per Ackermann J), and paras 120 – 129 (per Sachs J). 20 C Albertyn ‘Equality’ in M H Cheadle, D M Davis and N R L Haysom (eds) South African Constitutional Law: The Bill of Rights (2002) 51 at 60. 21 Albertyn attributes this reluctance, at least partially, to the Court’s discomfort with the notion that ‘the value of equality encompasses an idea of material equality and economic redistribution’: She argues that this ‘redistributive function sits uncomfortably with the institutional role of courts and with the distinction the courts seek to draw between issues of social policy and issues of law’: Albertyn (note 20 above) at 63 – 65; See also D Davis ‘Legoland Jurisprudence’ (note 17 above) at 413 – 414. For a recent consideration by the Court of the value of equality in the context of section 9 and the positive duties it imposes on the state, see Minister of Finance & Another v Van Heerden 2004 (11) BCLR 1125 (CC) at paras 22 – 27. 1 4 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E means, but always at the same time as an end.’22 In other words, we should relate to each other as having intrinsic worth as human beings. O’Regan J affirms the notion of human dignity as follows: …The importance of dignity as a founding value of our new Constitution cannot be over-emphasised. Recognising a right to dignity is an acknowledgment of the intrin- sic worth of human beings: human beings are entitled to be treated as worthy of respect and concern…23 Human dignity is closely related to the notion that human beings are agents capable of making moral choices, of shaping our identity, resisting injustice and participating in the shaping of society.24 Martha Nussbaum expresses this notion thus: The core idea is that of the human being as a dignified free being who shapes his or her own life in cooperation and reciprocity with others, rather than being passively shaped or pushed around by the world in the manner of a “flock” or “herd” animal. A life that is really human is one that is shaped throughout by these human powers of practical reason and sociability.25 Thus to value the inherent dignity of human beings as a society is to ensure that people enjoy 22 I Kant The Moral Law: Kant’s Groundwork of the Metaphysic of Morals (1963) (trans H J Patron) 96 cited and discussed in D Meyerson Rights Limited (1997) at 12 – 13. See also the discussion of the Kantian imperative and concept of human dignity by L Ackermann ‘Equality and the South African Constitution: The Role of Dignity’ (2000) 60 The Heidelberg Journal for International Law 537 at 540 – 542. 23 S v Makwanyane & Another 1995 (3) SA 391 (CC) para 328 (emphasis added). See also the comments of Ackermann J in National Coalition for Gay & Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC): ‘Dignity is a difficult concept to capture in precise terms. At its least, it is clear that the consti- tutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of society’ (at para 29). 24 In the context of evictions, the Constitutional Court has recently highlighted the importance of mediation and serious consideration of the need of occupiers for suitable alternative land in considering whether an eviction is ‘just and equitable’ in terms of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Sachs J refers to the importance of mutual respect for people’s agency in the following terms: ‘Thus those seeking eviction should not be encouraged to rely on concepts of faceless and anonymous squatters automatically to be expelled as obnoxious social nuisances. Such a stereotypical approach has no place in the society envisaged by the Constitution; justice and equity require that everyone is to be treated as an individual bearer of rights entitled to respect for his or her dignity. At the same time those who find themselves compelled by poverty and landlessness to live in shacks on the land of others, should be discouraged from regarding themselves as helpless victims, lacking the possibility of personal moral agency’: Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 41. 25 M Nussbaum Women and Human Development (note 3 above) 72 (footnotes omitted). Nussbaum’s notion of ‘a life that is really human’ has been the subject of criticism on the basis that that an attempt to elabo- rate the conditions of a fully human life implies that those who are denied these conditions have lost their dignity and are no longer ‘dignified’: see D Cornell ‘A Call for a Nuanced Constitutional Jurisprudence: Ubuntu, Dignity, and Reconciliation’ paper presented at a New Social Forms Seminar organised by the Department of Sociology and Social Anthropology, Stellenbosch University, 23 July 2004 (paper on line at www.sun.ac.za/sociology/activities_nsf.htm). My own reading of Nussbaum is that she is not claiming that poverty deprives people of their dignity, but rather that society fails to respect the dignity of people by neglecting to create the conditions under which people’s capabilities can develop and be effectively exer- cised. As she puts it: ‘We begin, then, with a sense of the worth and dignity of basic human powers, think- ing of them as claims to a chance for functioning, claims that give rise to correlated social and political duties’: Women and Human Development (note 3 above) 84. See further the discussion at 84 – 86. civil and political liberties and also have effective access to the social and economic means indis- pensable to the development of their physical, emotional, creative and associational capabili- ties. Nussbaum develops a provisional list of ‘central human capabilities’ that should be secured as a basic social minimum to all in political and constitutional principles. Through this list she seeks to isolate ‘those human capabilities that can be convincingly argued to be of central importance in any human life, whatever else the person pursues or chooses.’26 She argues that that they have ‘special claim to be supported for political purposes in a pluralistic society’ because of their importance in making any choice of a way of life possible.’27 Nussbaum’s proj- ect of developing a list of ‘central human capabilities’ has been criticised for being reductive and insufficiently sensitive to human difference, complexity and freedom.28 A valuable feature of the list is its holistic portrayal of human life. It illustrates that access to socio-economic rights is not simply a matter of bare survival, but also includes the development and exercise of the people’s associational, intellectual and emotional capabilities. In any event, I do not believe that it is necessary to subscribe to her list (or even her project of compiling a list) to support the cen- tral idea that we show respect for human potential and agency by creating an environment of basic liberties and material support which enables their flourishing.29 In his analysis of human dignity as a normative concept, Oscar Schachter distinguishes between ‘the subjective aspect of human dignity (how one feels or thinks about another) and the objective aspect (how one treats another)’.30 In its objective, social dimension, he argues that human dignity ‘requires recognition of a minimal concept of distributive justice that would require satisfaction of the essential needs of everyone.’31 Thus he includes in his list of conduct and ideas that offend or denigrate the worth and dignity of individuals, ‘[d]egrading living conditions and deprivation of basic needs.’32 International human rights law derives civil and political rights as well as social, economic and cultural rights from the value of human Human Dignity in Interpreting Socio-Economic Rights 147 26 Nussbaum Women and Human Development (note 3 above) 74. Her list of central human functional capa- bilities relates to the following dimensions of human existence: life; health; bodily integrity; the senses, imagination and thought; emotions, practical reason, affiliation; other species; play; political and material control over one’s environment (at 77 – 80). 27 Nussbaum Women and Human Development (note 3 above) 75. 28 See K Van Marle ‘“The Capabilities Approach”, “The Imaginary Domain”, and “Asymmetrical Reciprocity”: Feminist Perspectives on Equality and Justice’ (2003) 11 Feminist Legal Studies 255 – 278, particularly the discussion at 272 – 273. Sen’s reservations regarding the search for a list of central human capabilities relates to the difficulty ‘in seeing how the exact lists and weights would be chosen without appropriate specification of the context of their use (which could vary), but also from a disinclination to accept any substantive diminution of the domain of public reasoning’: For Sen the framework of human capabilities is important for clarifying and illuminating ‘the subject matter of public reasoning…It does not – and cannot – displace the need for public reasoning’: A Sen ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315 – 356 at 333. 29 Nussbaum herself emphasises that the list ‘remains open-ended and humble; it can always be contested and remade’. It aims at ‘multiple realisability’, leaving room for more concrete specification according to local beliefs and circumstances: Women and Human Development (note 3 above) 77. 30 O Schachter ‘Human Dignity as a Normative Concept’ (1983) 77 Am J of Int Law 848, 849. 31 Schachter (note 30 above) 851. David Feldman makes the following observations in relation to the subjec- tive and objective dimensions of human dignity: ‘In relation to the subjective aspect of dignity, the law of human rights will typically be concerned to prevent treatment which damages a person’s self-respect and physical or moral integrity. With regard to the objective aspect, the law will usually have to go further, imposing positive duties on people to act in ways which optimise the conditions for social respect and dig- nity’: ‘Human Dignity as a Value – Part I’ (1999) 14 Public Law 682 at 686 – 687. 32 Schachter (note 30 above) 852. 1 4 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E dignity.33 The Constitutional Court has also on a number of occasions referred to the dis- juncture between our founding constitutional values and conditions of material deprivation.34 The above approaches to human dignity illustrate that its ambit is by no means confined to sub- jective personality issues. To the contrary, respect for human dignity requires that we pay close attention to conditions of material disadvantage and its impact on different groups in our society. This brings us to the concern that human dignity is irrevocably connected with negative lib- erty. Accordingly, dignity as a value would support constraints on State interference with indi- vidual liberties, and would discourage intervention to redistribute social resources. Human dig- nity undeniably requires respect for personal autonomy and choices.35 But at the same time our commitment to respect for each person’s substantive freedom and life choices requires the cre- ation of the social conditions on which people’s capacity for personal fulfilment and agency depends. This leads David Feldman to describe dignity as a ‘two-edged sword’, which can oper- ate both to uphold and restrict personal liberties: …[W]e must not assume that the idea of dignity is inextricably linked to a liberal- individualistic view of human beings whose life-choices deserve respect. If the state takes a particular view of what is required for people to live dignified lives, it may introduce regulations to restrict the freedom which people have to make choices which, in the state’s view interfere with the dignity of the individual, a social group or the human race as a whole. …The quest for human dignity may subvert rather than enhance choice and in some circumstances may limit rather than extend the scope of traditional ‘first generation’ human rights and fundamental freedoms…36 33 The preambles of both the International Covenant on Economic, Social, and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966) recognise that the rights contained in the respective Covenants ‘derive from the inherent dignity of the human person’: In The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (note 12 above), the African Commission on Human and Peoples’ Rights derived the right to food from a number of other provisions in the African Charter on Human and Peoples’ Rights. In particular, it held that the right to food ‘is insepa- rably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of other rights as health, education, work and political participation’ (at para 65). 34 In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC), the Court affirmed that the Constitution commits us to transform the intolerable conditions in which people live in order to vindicate the values of human dignity, equality and freedom: paras 8 – 10. In Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) the Court stated that the issues in the case remind us of the intol- erable conditions under which many of our people are still living and brings home ‘the harsh reality that the Constitution’s promise of dignity and equality for all remains a distant dream’: (para 2). See also A Chaskalson (The Third Bram Fischer Lecture) ‘Human Dignity as a Foundational Value of our Constitutional Order’ (2000) 16 SAJHR 193 at 204 – 205. 35 The links between dignity and freedom are described in the following terms by Ackermann J in Ferreira v Levin NO 1996 (1) SA 984 (CC): ‘Human dignity cannot be fully valued or respected unless individuals are able to devel- op their humanity, their “humanness” to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual’s human dig- nity cannot be fully respected or valued unless the individual is permitted to develop his or her talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity’: (at para 49). See also Prince v President of the Law Society of the Cape of Good Hope & Others 2002 (2) SA 794 (CC): ‘Our society is diverse…The protection of diversity is the hallmark of a free and open society. It is the recognition of the inherent dignity of all human beings. Freedom is an indispensable ingredient of human dignity’: (per Ngcobo J at para 49). 36 D Feldman (note 31 above) 685. This may suggest that dignity is an indeterminate value – it cannot guide us as to when con- straints should be placed on State interference with liberties and when it should require posi- tive intervention. The capabilities approach to human dignity developed by Nussbaum provides us with at least one set of criteria for requiring positive state intervention. In Nussbaum’s account, the State has a strong duty to guarantee the social basis of each person’s basic human capabilities based on a principle of each person as an end.37 This fundamental commitment necessarily implies that the State is entitled to restrict the liberties of some members of society (provided it does not impinge on their basic human capabilities) in order to guarantee to every- one the social basis of basic human capabilities.38 In this sense a focus on capabilities as social goals is also closely related to human equality. As Nussbaum explains: …[M]aking capabilities the goal entails promoting for all citizens a greater measure of material equality than exists in most societies, since we are unlikely to get all cit- izens above a minimum threshold of capability for truly human functioning without some redistributive policies…39 Nussbaum’s approach is compatible with a range of different theories as to the degree of mate- rial equality that should be guaranteed in a just society, including complete egalitarianism, a Rawlsian difference principle, and a focus on an ample social minimum for all.40 However, in most societies in the world, including South Africa, we are very far from providing even the basic minimum required for promoting human capabilities.41 It is also helpful in this context to conceive of human dignity as a relational value. According to this notion we are interconnected beings. Our sense of self-worth, personal development and well-being is inextricably bound up with the extent to which we are valued by others and the society at large. O’Regan J expresses this when she writes in Makwanyane: …the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity…The right to life is more than existence, it is a right to be treated as a human being with dignity… .42 Human Dignity in Interpreting Socio-Economic Rights 149 37 M Nussbaum Women and Human Development (note 3 above) at 5 – 6, 89. In certain core areas of human functioning, ‘a necessary condition of justice for a public political arrangement is that it delivers to citizens a certain basic level of capability’: (at 71). She draws a distinction between capability and functioning, defending the former as the appropriate political goal given the value we attach to respecting people’s choices. It is not the role of government to push people into ‘functioning of the requisite sort’: (at 87). She argues that ‘for political purposes it is appropriate that we shoot for capabilities and those alone. Citizens must be left free to determine their own course after that. The person with plenty of food may always choose to fast, but there is a great dif- ference between fasting and starving, and it is this difference that I wish to capture’: (at 87). 38 In discussing socio-economic rights such as the right to shelter in terms of her capabilities approach, Nussbaum identifies the central focus to be ‘how people are actually enabled to live’: ‘Analyzing economic and material rights in terms of capabilities thus enables us to set forth clearly a rationale we have for spend- ing unequal amounts of money on the disadvantaged, or creating special programs to assist their transition to full capability’: Women and Human Development (note 3 above) 99. 39 Nussbaum Women and Human Development (note 3 above) 86. 40 Ibid. 41 See further in this regard Women and Human Development (note 3 above) 12, 86. 42 S v Makwanyane & Another 1995 (3) SA 391 (CC) paras 326 –7. In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) the Court affirmed that having access to social goods and services 1 5 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E To value human dignity is not to create zero-sum trade-offs between negative liberty and wel- fare, but to constitute positive social relationships that both respect autonomy and foster the conditions in which it can flourish.43 Dignity as a relational value can help us to perceive the limits of individual claims on social resources with reference to the needs and equal worth of others and the available resources of the society.44 But the corollary is a collective acknowledge- ment we are diminished as a society to the extent that any of our members are deprived of the opportunities to develop their basic capabilities to function as individual and social beings.45 Mokgoro J expresses this idea in the following passage in the case of Khosa v Minister of Social Development: …Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and were aspects of the right to ‘…human life: the right to live as a human being, to be part of a broader communi- ty to share in the experience of humanity’: (at para 31). The associational dimensions of human dignity were also recently affirmed by the Supreme Court of Appeal in the decision of Minister of Home Affairs and Others v Watchenuka and Another 2004 (2) BCLR 120 (SCA). The Court held that conditions imposed on refugees and asylum-seekers prohibiting them from undertaking employment and from studying constituted an infringement of their rights to human dignity and education. The Court (per Nugent JA) stated: ‘The freedom to engage in pro- ductive work – even where that is not required in order to survive – is indeed an important component of human dignity…for mankind is pre-eminently a social species with an instinct for meaningful association. Self-esteem and the sense of self-worth – the fulfilment of what it is to be human – is most often bound up with being accept- ed as socially useful’: (para 27). It is important, however, not to associate the right to work only with productive, waged work. One of the major contributing factors to gender inequality is society’s persistent undervaluing of reproductive work of which women bear the disproportionate burden. See in this regard, President of the Republic of South African and Another v Hugo 1997 (4) SA 1 (CC) at para 38 (per Goldstone J). 43 The relational conception of autonomy is described in the following terms by Jennifer Nedelsky: ‘Interdependence becomes the central fact of political life, not an issue to be shunted to the periphery in the basic question of how to ensure individual autonomy in the inevitable face of collective power. The human interactions to be governed are not seen primarily in terms of the clashing of rights and interests, but in terms of the way patterns of rela- tionship can develop and sustain both an enriching collective life and the scope for genuine individual autono- my…The constitutional protection of autonomy is then no longer an effort to carve out a space into which the collective cannot intrude, but a means of structuring the relations between individuals and the sources of collec- tive power so that autonomy is fostered rather than undermined’: (note 6 above) 8. In the South African context, the interdependence between individual and community is captured by the spirit of ubuntu. Mokgoro J explains that while ‘ubuntu envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit empha- sises a respect for human dignity, marking a shift from confrontation to conciliation’: S v Makwanyane & Another 1995 (3) SA 391 (CC) para 308 (per Mokgoro J). In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) the Court (per Sachs J) further noted: ‘The spirit of ubuntu, part of the deep cultural her- itage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, insti- tutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern’: (para 37, footnotes omitted). 44 In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) the Court justified the limi- tation of the appellant’s right to tertiary-level health care services by referring to the State’s duty to manage its resources so as to meet the basic needs of others: paras 28, 31 (per Chaskalson P), and para 54 (per Sachs J). See, however, the critique of Soobramoney in Karin van Marle ‘”No Last Word” – Reflections on the Imaginary Domain, Dignity and Intrinsic Worth’ (2002) Stell LR 299, particularly at 305 – 307. 45 In an article on the application of the value of human dignity in criminal law, Shannon Hoctor argues that ‘dignity has a communitarian aspect: by requiring respect for others’ claims to dignity, vindication of the human dignity of all is better assured, and a community of mutual co-operation and solidarity is fostered’: ‘Dignity, Criminal Law and the Bill of Rights’ (2004) 121 SALJ 265 at 315 (footnotes omitted). the well-being of the community as a whole. In other words, decisions about the allo- cation of public benefits represent the extent to which poor people are treated as equal members of society…46 It is implicit in a relational concept of dignity that claims on social resources are strongly justi- fied when people lack the basic material necessities of life to enable them to survive and devel- op as members of the community. If we are to constitute ourselves as a society that respects human dignity (as we have through the founding values of our Constitution), we are commit- ted to redressing the social and economic conditions of those whose capacity for development and agency is stunted by poverty. By failing to do so, we undermine the very foundations of our new constitutional democracy.47 The decision in Minister of Health v Treatment Action Campaign48 (hereafter ‘TAC’) illustrates the underlying relational concept of human dignity at work. The government was being asked to provide a relatively cheap anti-retroviral drug (Nevirapine)49 with a significant potential of reduc- ing the risk of mother-to-child transmission of HIV.50 While there were additional costs associat- ed with prescribing the drug, particularly the costs of HIV-testing and counselling facilities, the Court found that government had the resources to extend these facilities to hospitals and clinics throughout the public health sector beyond the limited number of test sites.51 For the babies of poor women who give birth in the public health sector, this drug has significant life-saving poten- tial. For society to deny poor women and their newborns access to ‘a simple, cheap and poten- tially lifesaving medical intervention’52 would clearly indicate a lack of respect for their dignity as human beings entitled to be treated as worthy of respect and concern. I have sought to illustrate that human dignity derives from the value we ascribe to human beings. Because we value them, we wish to ensure that conditions are created that enable them to develop their capabilities and to flourish as individual and social beings. This encompasses respect for people’s diverse identities, their associational freedoms, as well as concern for the material conditions that shape their life choices. Dignity as a value requires respect for people’s freedoms, but also helps us to understand why these liberties must sometimes be constrained to protect and nurture the capabilities of others. Finally, I have argued that a relational concept of human dignity best captures the interdependence between individual and social welfare, and Human Dignity in Interpreting Socio-Economic Rights 151 46 Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) para 74 (footnotes omitted). 47 In the context of unfair discrimination, the Court has held that ‘the interests of the community lie in the recognition of the inherent dignity of every human being and the elimination of all forms of discrimination’: Hoffman v SAA 2000 (11) BCLR 1211 (CC) at para 43. In the context of evictions of poor people from their homes, the Court has stated: ‘It is not only the dignity of the poor that is assailed when homeless peo- ple are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their margin- alisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual’: Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 18. 48 2002 (5) SA 721 (CC). 49 The manufacturers of Nevirapine had offered to make it available to the South African government free of charge for a period of five years, for the purpose of reducing the risk of mother-to-child transmission of HIV. Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) para 19 read with paras 71 and 80. 50 Para 57. 51 Paras 118 – 120. 52 Para 73. 1 5 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E also illuminates the circumstances in which people have justified claims to social resources. In the next section I examine how the value of human dignity can be applied to enrich South Africa’s socio-economic rights jurisprudence. I also examine, through my discussion of the Canadian case of Gosselin,53 applications of human dignity that can operate to exclude the poor from access to benefits, rather than facilitate their inclusion. IV Human Dignity and its Value in Socio-Economic Rights Jurisprudence I have argued for a relational concept of human dignity in which society’s neglect to redress condi- tions of socio-economic disadvantage represents a collective failure to value human dignity. This con- cept helps to challenge stigmatizing notions of the poor as ‘dependants’ of society and undeserving of social support.54 Conditions of poverty are not a reflection of the moral blameworthiness of groups experiencing poverty;55 they reflect how we as a society have failed to value human dignity. There is another dimension of human dignity that can make an important contribution to the development of our socio-economic rights jurisprudence. This is the concept of the equal worth of people that lies at the heart of human dignity. As the Court has affirmed in the con- text of its equality jurisprudence, the acknowledgment of equal moral worth requires treatment as an equal as opposed to equal treatment.56 Treatment as an equal requires full acknowledge- ment of the racial, gender, social, economic, cultural and other differences between groups in society. Thus the quest for equal worth or dignity is not a quest for uniformity, but a quest to eliminate the disadvantages and inferior status that attach to membership of particular groups.57 This substantive approach to equality inevitably requires a contextual analysis which is able to identify the real situations and disadvantages experienced by various groups in the light of our history as well as current social, economic, political and gender relations.58 Treatment as an equal demands that we also respond appropriately to the actual needs of dif- 53 Gosselin v Quebec (Attorney General), 2002 SCC 84, 221 DLR (4th) 257. 54 The Court has affirmed the close relationship between human dignity and social assistance in the cases of Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) paras 41 and 52 and Mashavha v President of the RSA & Others 2004 (12) BCLR 1243 (CC) para 51. 55 On approaches to adjudication in the US premised on notions of the moral blameworthiness of the poor, and the attitude of ‘helplessness’ in response to their claims, see T Ross ‘The Rhetoric of Poverty: Their Immorality, Our Helplessness’ (1991) 79 Georgetown Law Journal 1499 – 1547. 56 See R Dworkin Taking Rights Seriously (1977) at 227 cited in Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) at para 32. 57 As Sachs J states in National Coalition for Gay & Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC): ‘At the heart of the equality jurisprudence is the rescuing of people from a caste-like status and putting an end to their being treated as lesser human beings because they belong to a particular group. The indignity and subordinate status may flow from institutionally imposed exclusion from the mainstream of society or else from powerlessness within the mainstream…’ (para 129). He goes on to affirm that ‘[e]quality means equal concern and respect across difference’ as opposed to uniformity which ‘can be the enemy of equality’: (para 132). 58 In Brink v Kitshoff NO 1996 (4) SA 197 (CC) O’Regan J refers to the ‘deep patterns of disadvantage’ which have resulted from gender discrimination in our society, particularly in the case of black women. A ‘key message of the Constitution’ is that ‘all such discrimination needs to be eradicated from our society’: (para 44). In its socio-economic rights jurisprudence, the Court has also indicated the reasonableness of the State’s measures to realise socio-economic rights must be evaluated in the light of their ‘social, economic and his- torical context’: Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 43. ferently situated groups. In Harksen v Lane NO, O’Regan J (in her dissenting judgment) affirms that respect for human dignity in equality jurisprudence requires an approach that is responsive to individual needs and circumstances in order to create a buffer against the con- struction of further patterns of discrimination: …Such patterns of discrimination can occur where people are treated without the respect that individual human beings deserve and particularly where treatment is determined not by the needs or circumstances of particular individuals, but by their attributes and characteristics, whether biologically or socially determined…59 Building on this concept of human dignity in equality jurisprudence, dignity as a value in socio- economic rights jurisprudence requires that we take account of the relative urgency of the needs of different individuals and groups and respond correspondingly.60 This implies a contextual analysis with regard to the position of particular groups in society and the different orders and types of need experienced by these groups. Thus, for example, one would be required to con- sider the multifarious ways in which gender relations contribute to women’s unequal access to socio-economic resources.61 One would also have to consider the nature of the deprivation and the seriousness of its impact upon the affected individuals. In Watchenuka’s case, the Supreme Court of Appeal held that a consideration of the severe impact of an administrative decision on the socio-economic circumstances of the applicants was a highly relevant factor.62 Thus, while the State could justifiably limit the rights of non-nation- als (such as asylum-seekers) to undertake employment and education, different considerations applied when the applicants were destitute. When employment ‘is the only reasonable means for the person’s support’ what is then in issue ‘is not merely a restriction upon the person’s Human Dignity in Interpreting Socio-Economic Rights 153 59 Harksen v Lane NO and Others 1998 (1) SA 300 (CC) para 92 [emphasis added]. In Canadian equality jurisprudence, human dignity is also central to the determination of discrimination in terms of sec 15 of the Canadian Charter of Rights and Freedoms. In Law v Canada (Minister of Employment and Immigration) (1999) 170 DLR (4th) 1, [1999] 1 SCR 497 the Court developed the following understanding of what respect for human dignity in equality jurisprudence requires: ‘Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circum- stances which do not relate to individual needs, capacities or merits. It is enhanced by laws which are sen- sitive to the needs, capacities, and merits of different individuals, taking into account the context underly- ing their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.” (at para 53) [emphasis added]. In her dissenting judgment in Gosselin v Quebec (Attorney General) 2002 SCC 84, 221 DLR (4th) L’Heureux-Dubé J states: ‘Prejudicial effects giving rise to a s 15 claim may result when a legislature simply fails to turn its mind to the particular needs and abilities of indi- viduals or groups so as to provide equal benefit under the law to all members of society’: (at para 120). 60 See the discussion by Bilchitz of the concept of urgency in protecting people’s basic interest in survival and non-impaired functioning: D Bilchitz ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2002) 118 SALJ 484 at 490 – 491. 61 Martha Nussbaum argues for the importance of ‘an approach that is respectful of each person’s struggle for flourishing, that treats each person as an end and as a source of agency and worth in her own right’: (note 3 above) 69. She critiques utilitarian and resource-based approaches to human development as ‘insensitive to contextual variation, to the way circumstances shape preferences and the ability of individuals to con- vert resources into meaningful human activity’: (note 3 above) 69 - 70. Particularly in the developing world we need to be ‘highly alert’ to individual variations of need and the extent to which differently-situated indi- viduals can ‘convert resources into valuable functionings’: (note 3 above) 68. 62 Minister of Home Affairs and Others v Watchenuka and Another 2004 (2) BCLR 120 (SCA). 1 5 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E capacity for self-fulfilment, but a restriction upon his or her ability to live without positive humiliation of degradation.’63 To prohibit work and study in these circumstances would nor- mally be unlawful. This requires the Refugee Reception Offices and the Standing Committee on Refugee Affairs to carefully consider the impact of a restrictive condition regarding work or study on the individual applicant and his or her family. In its socio-economic rights jurisprudence the Court has affirmed that a reasonable gov- ernment policy must cater for different groups and orders of need in society.64 The Court has also taken the critical step of affirming that a government programme that neglects to attend to urgent needs cannot be reasonable. In Grootboom the government’s otherwise compre- hensive and rational housing programme65 was faulted for failing to cater for groups in urgent need: …To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving the realisation of the right. It may not be suffi- cient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test…66 The Court has further acknowledged that ‘the poor are particularly vulnerable and their needs 63 Minister of Home Affairs and Others v Watchenuka and Another 2004 (2) BCLR 120 (SCA) para 32 (per Nugent JA). In relation to freedom of education Nugent JA held that when ‘a child is lawfully in this coun- try to seek asylum (there might be other circumstances as well) I can see no justification for limiting that right so as to deprive him or her of the opportunity for human fulfilment at a critical period…A general prohibition that does not allow for study to be permitted in appropriate circumstances is in my view unlaw- ful’: (at para 36) [footnotes omitted, emphasis added]. 64 Thus in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) the Court held that a reasonable programme ‘must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long-term needs. A programme that excludes a significant seg- ment of society cannot be said to be reasonable’: (para 43). 65 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 53 – 54. 66 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 44 [emphasis added]. See also para 52: ‘[T]here is no express provision [in the Housing Act, 107 of 1997] to facilitate access to temporary relief for people who have no access to land, no roof over their heads, for people who are living in intolerable conditions and for people who are in crisis because of natural disasters such as floods and fire, or because their home homes are under threat of demolition. These are people in desperate need’: See also Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC): ‘The provision of a single dose of Nevirapine to mother and child for the purpose of protecting the child against the transmission of HIV is, as far as the children are concerned, essential. Their needs are “most urgent” and their inability to have access to Nevirapine profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are “most in peril” as a result of the policy that has been adopted and most affected by a rigid and inflexible policy that excludes them from having access to Nevirapine’: (para 78). In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC), the Court emphasised the importance of taking account of ‘the actual situation’ of the persons concerned in eviction proceedings: ‘In a society founded on human dignity, equality and freedom it cannot be presupposed that the greatest good for the many can be achieved at the cost of intolerable hardship for the few, particularly if by a reasonable application of judi- cial and administrative statecraft such human distress could be avoided’: (para 29). require special attention.’67 Respect for human dignity requires society to marshal its resources and respond strongly to situations in which certain groups are unable to gain access to basic socio-economic needs. The consequences of the deprivation will be severe (either in terms of threats to life or health), and erode the foundations for the further development of people’s capabilities. To value human beings as a society demands an appropriate response. The overall resources and capacity of the society concerned will naturally determine this response. But dig- nity demands that society do its utmost to ensure that those groups who are unable to gain access to basic socio-economic needs are assisted.68 This duty is recognised by the United Nations Committee on Economic, Social and Cultural Rights in interpreting States parties’ obligations under the International Covenant on Economic, Social and Cultural Rights (1966). According to the Committee, ‘…a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential pri- mary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.’ 69 This places a burden on the State, should it seek to attribute its failure to meet its core obligation to a lack of available resources, to ‘demonstrate that every effort has been made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations.’ 70 In Grootboom and TAC, the Court rejected the invitation of the amici to base their decision on the concept of a minimum core obligation. In doing so the Court articulated a range of con- cerns relating to the concept. These included the assumed inflexibility of the minimum core, dif- ficulties in setting minimum standards in the context of varying needs and opportunities for accessing the rights, the lack of institutional competence for determining minimum standards, and the impossibility of giving everyone access to even a ‘core’ service immediately.71 However, the minimum core obligation, properly conceived, is neither an absolute duty nor a rigid stan- dard. Rather, it establishes a high threshold of justification when a deprivation of ‘essential’ lev- els of socio-economic goods and services is at issue. The State is required to show that it has exhausted all available methods, and that its resources are ‘demonstrably inadequate’72 to meeting those needs. This raises the central importance of justification in ensuring the strong protection of socio-economic rights. This issue will be revisited in Part V below. Human Dignity in Interpreting Socio-Economic Rights 155 67 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 36; Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) para 70. 68 In Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC), the Court (per Mokgoro J) stated: ‘The right of access to social security, including social assistance, for those unable to support themselves and their depen- dants is entrenched because as a society we value human beings and want to ensure that people are afford- ed their basic needs. A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational’: (at para 52) [emphasis added, footnotes omitted]. Nussbaum argues: ‘Programs aimed at raising general or average well-being do not improve the situation of the least well-off, unless they go to work directly to improve the quality of those people’s lives. If we combine this observation with the thought…that each person is valuable and wor- thy of respect as an end, we must conclude that we should look not just to the total or the average, but to the functioning of each and every person. We may call this the principle of each person as end’: Women and Human Development (note 3 above) at 56. 69 General Comment No. 3 (Fifth session, 1990) The Nature of States Parties Obligations (art 2(1) of the Covenant), UN doc E/1991/23 at para 10. 70 Ibid. 71 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 29 – 33; Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) paras 26 – 39. 72 General Comment No 3 (note 69 above) para 11. 1 5 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Thus far I have argued that the value of human dignity can enrich our socio-economic rights jurisprudence, first, by justifying claims against social resources when groups lack the material conditions necessary for the development of their capabilities as human beings. Second, respect and concern for the dignity of each person requires an approach that considers the impact of the deprivation upon the actual needs and circumstances of the individuals and groups con- cerned. Finally, it requires an appropriate response to these conditions. Urgent needs and severe deprivations demand a strong, immediate response. We give expression to the value of human dignity in our constitutional jurisprudence by placing the State under a stringent burden of jus- tification in claims involving a deprivation of basic needs. However, the use of human dignity in socio-economic rights jurisprudence is not without its pitfalls. As critics have cautioned in relation to South Africa’s equality jurisprudence,73 there is a danger that human dignity in our socio-economic jurisprudence will result in a focus on sub- jective personality issues such as the claimants’ feelings of self worth and self-respect. This focus can divert attention away from the real issue of the impact of the deprivation on claimants. The Canadian Supreme Court decision in Gosselin illustrates how differing conceptions of human dignity can influence the outcome of a social benefits claim.74 A class action was brought challenging social security regulations in Quebec which set the base amount of welfare benefits for adults between the ages of eighteen and thirty years at about one-third the base amount payable to those thirty years and over. This amounted to a difference between $170 per month compared to $466 per month (for the over 30 years and over age group). The latter was deemed by the legislature to constitute ‘the bare minimum for the sustainment of life.’75 The only way that those under 30 years could raise their benefits was to participate in various edu- cational and employability programmes. However, for the majority of young welfare recipients like the appellant participation in these programmes was fraught with difficulties, including their restrictive eligibility requirements and the limited number of places available.76 The Supreme Court of Canada had to consider whether the challenged regulation violated section 15 (equality right) of the Charter on the grounds that it discriminated on the basis of age. In addition, violations of section 7 of the Charter77 and section 45 of the Quebec Charter of Rights and Freedoms 78 were also alleged. The majority of the Court found no violations of the Canadian Charter of Rights and Freedoms or the Quebec Charter. In regard to section 15, the majority held that a reasonable person in the claimant’s circumstances would have perceived the government’s positive motives in creating an incentive-based welfare scheme for young people. According to the 73 See Part II above and the works cited there. 74 Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th). 75 Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) at paras 251, 285 (per Bastarche J), and at para 334 (per Arbour J). 76 Thus the government of Quebec had only made 30 000 programme places available even though 85 000 single people under 30 years of age were on social assistance. See Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) para 283. Four of the dissenting judgments on s 15 raised serious issues regarding the accessibility of these programmes and questioned whether the regulation was really designed to enhance the long-term situation of those under 30 years as opposed to simply saving money. See, for example, the discussion by Bastarche J at paras 276 – 283, and Arbour J at para 393. 77 Section 7 of the Charter provides that: ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’. 78 Section 45 of the Quebec Charter provides that every person in need has a right to ‘measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living’. government this scheme was designed to promote the long-term employability of young peo- ple. Thus making welfare payments conditional in this manner did not violate the dignity or human worth of persons under 30 years of age.79 This can be contrasted with the more impacts-based approach to human dignity in the dissenting judgment of L’Heureux-Dubé J. After dealing with the practical effects of the regulation on the claimant’s ability to meet basic subsistence needs,80 she considered whether the claimant would perceive that her dignity had been threatened: …The reasonable claimant…would have been told that the long-term goal of the leg- islative scheme was to affirm her dignity. The reasonable claimant would also likely have been a member of the 88.8 percent who were eligible for the programs and whose income did not rise to the levels available to all adults 30 years of age and over…. The reasonable claimant would have made daily life choices in the face of an imminent and severe threat of poverty. The reasonable claimant would likely have suffered malnour- ishment. She might have turned to prostitution and crime to make ends meet. The rea- sonable claimant would have perceived that as a result of her deep poverty she had been excluded from full participation in Canadian society. She would have perceived that her right to dignity was infringed as a sole consequence of being under 30 years of age, a factor over which, at any given moment, she had no control…81 In L’Heureux-Dubé J’s judgment, the legislature’s good motives did not outweigh the severe impact of the regulation on the claimant’s physical and psychological integrity and her human dignity as a member of Canadian society. Her approach to the question whether there was a correspondence between the ground of distinction and the actual needs and circumstances of the affected group is also significant. In this regard, she held that ‘there should be a strong presumption that a legislative scheme which causes individuals to suffer severe threats to their physical and psychological integri- ty as a result of their possessing a characteristic which cannot be changed does not adequately take into account the needs, capacity or circumstances of the individual or group in question.’82 The approach of the majority in Gosselin to the assessment of whether human dignity had been infringed by the relevant regulation illustrates the dangers of a narrow, ‘personality inter- ests’-type approach to human dignity in assessing the constitutionality of a group’s exclusion from social benefits. This is further complicated by the introduction of an objective element, focusing not on the actual experiences of the applicant, but on conjecture regarding what a rea- sonable person in the applicant’s position would feel. As Sandy Fredman argues, ‘[t]he reason- able person turns out to be no more than the government’s own perception of its policy aims, Human Dignity in Interpreting Socio-Economic Rights 157 79 Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) paras 52 – 53, 65 (per McLachlin CJC). In Law (note 59 above), the Supreme Court of Canada had held that the key issue in determining whether a distinction conflicts with sec 15(1) is whether ‘a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity’ having regard to the individual’s or group’s traits, history, and circumstances’: (para 60; cited in Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) at para 25). 80 She found that the regulation in question exposed Ms Gosselin to the risk of severe poverty and in so doing breached her psychological and physical integrity. For example, she pointed out that in 1987, the monthly cost of proper nourishment was $152 whereas the guaranteed monthly welfare payment to young adults was $170: Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) para 130. 81 Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) paras 131 – 132. 82 Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) para 135 [emphasis added]. 1 5 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E thus underscoring the deference of the standard of review.’83 The majority in Gosselin is too deferential to legislative choices that result in a vulnerable group suffering severe deprivation osten- sibly to promote the longer-term objectives of greater self-sufficiency and employability among youth on welfare. The minority judgments, in contrast, emphasise the impact on young welfare benefici- aries of the exclusion from a minimally adequate standard of benefits. The infringement of human dignity arises from the fact that the exclusion seriously undermines the physical and psychological integrity of young welfare beneficiaries. This places a burden on the State to justify the exclusion based on compelling evidence and arguments. The minority concludes that the consequences were of such a severe nature that they could not be justified by the state’s long-term objectives.84 The minority’s approach to human dignity in Gosselin holds the most potential for positive- ly influencing our socio-economic rights jurisprudence. The final section examines how the value of human dignity can influence our socio-economic rights jurisprudence to make it more responsive to claims for the provision of basic human needs. V Strengthening our Constitutional Response to Basic Needs Claims In many respects the evolving jurisprudence on socio-economic rights gives effect to the value of human dignity developed thus far. The Court endorses positive state measures to achieve access to socio-economic rights, a context-sensitive evaluation of reasonableness, and the requirement that a reasonable government programme includes short-term relief for those in urgent need and living in intolerable conditions. This applies even if the overall programme is statistically successful in the long-term in advancing people’s access to socio-economic rights.85 The Court’s model of review for positive socio-economic rights claims86 centres on the rea- 83 S Fredman ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ unpublished paper deliv- ered at SAJHR Conference, 5 – 7 July 2004 (on file with author), at 11. See also G Brodsky ‘Gosselin v Quebec (Attorney General): Autonomy with a Vengeance’ (2003) 15 Canadian Journal of Women and the Law 194. 84 Thus, for example, Arbour J held as follows in considering the sec 1 limitation inquiry (having found that the regulation breaches the s 7 rights to life and security of the person): ‘..it is difficult to accept that denial of the basic means of subsistence is rationally connected to values of promoting the long-term liberty and inherent dig- nity of young adults. Indeed, the long-term importance of continuing education and integration into the work- force is undermined where those at whom such “help” is directed cannot meet their basic short-term subsistence requirements. Without the ability to secure the immediate needs of the present, the future is little more than a far- off possibility, remote both in perception and in reality’: Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) para 392. This also has resonance with the rationale in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). Here the government’s rational housing programme that was geared to the long-term goal of providing housing for all was nonetheless constitutionally defective for its failure to attend to short-term, urgent housing needs (see notes 64 - 66 above and accompanying text). 85 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 44, 68 and see the Court’s order at para 99. 86 These claims involve two main situations. The first is the exclusion of a particular group from an existing social programme, the second entails the absence of a suitable programme providing access to particular benefits. In the first type of situation, as Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) illustrates, socio-economic rights and equality claims may often overlap. In the second situation, litigants may rely on the socio-economic rights provisions in the Bill of Rights to argue that the State is under a duty to adopt an appropriate programme ‘capable of facilitating the realisation of the right’ in question. See Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 41. The absence of a programme catering for the provision of basic needs may also engage the right to equality interpreted substantively. sonableness inquiry. The fundamental question to be answered by the Court in such cases is whether the measures adopted by the State (or the failure to adopt appropriate measures) are reasonable in the circumstances. The reasonableness inquiry is further conditioned by the qualifying phrases in the second subsections of sections 26 and 27, namely the availability of resources and the latitude of ‘progressive realisation’ afforded the State.87 The Court is clear- ly reluctant to dictate particular policy choices to government. Instead it contemplates in Grootboom that ‘a wide range of possible measures’ would meet the requirements of rea- sonableness and thus comply with sections 26 and 27.88 It is certainly appropriate that the Court respects the primary role of the democratically elected legislature in relation to socio- economic policy. The executive also has particular institutional competency to design and implement appropriate policies and programmes. Reasonableness review provides the courts with a flexible, context-sensitive tool for adjudicating positive socio-economic rights claims.89 However, its application in relation to claims involving a deprivation of the basic necessities of life is inadequate. The stakes are high for the individuals and groups who approach the Court for relief, entailing severe threats to life, health and the ability to function in society. I have sought to develop the argument that a failure by society to respond in proportion to the seri- ousness of the deprivations faced by its members represents a failure to value their fundamen- tal dignity as human beings. In this section I will argue why I believe that the judicial protec- tion of these claims is insufficient, and how it could be improved. Stronger judicial potential of these claims will also signal to the State the constitutional importance of a robust response to situations of severe material deprivation. One of the shortcomings of the current structure of reasonableness review is that individual litigants bear an onerous burden of proof and persuasion to demonstrate the unreasonableness of government programmes. The Court has made it clear that sections 26 and 27 confer no direct entitlement to claim immediate delivery of goods and services from the State only a right to require government to adopt a reasonable programme.90 Thus it is not enough for a group of litigants to approach the Court alleging that they are poor and seriously malnourished, there- by establishing a prima facie violation of the right to food in section 27 of the Constitution. Instead litigants will have to show that the State’s actions or omissions are unreasonable in terms of the second subsection of section 27. To do so, they will have to review a wide range of government social programmes, and assess their reasonableness in the context of the State’s Human Dignity in Interpreting Socio-Economic Rights 159 87 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 38, 41, 45-6. Although ‘progressive realisation’ affords the State the latitude of not requiring immediate realisation of the right, the Court also affirms that it imposes specific obligations on the State to make demonstrable progress in facilitating access to the rights, and in avoiding retrogressive measures: see Grootboom para 45. 88 Grootboom para 41. 89 The following key features of a reasonable government programme to realise socio-economic rights were developed by the Court in the Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) and the Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) cases: the pro- gramme must be comprehensive, coherent, coordinated; it must be balanced and flexible, making appro- priate provision for short, medium and long-term needs, and not exclude a significant segment of society; it must include reasonable provision for those in urgent need; it must be reasonably conceived and imple- mented; it must be transparent, and its contents must be made known effectively to the public. See Grootboom paras 39 – 43; Treatment Action Campaign para 123. 90 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 41, 95; Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) 32 – 39, and 125. 1 6 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E capacity and available resources.91 Establishing the unreasonableness of a disparate set of gov- ernment programmes in the light of the State’s available resources will be a matter of great fac- tual and legal complexity which will often be beyond the capacity of indigent and vulnerable groups.92 It thus does not facilitate the practical justiciability of this class of claims.93 In cases (such as the one discussed above) where people will face irreparable harm through not having their basic needs met, a more appropriate response would be to give the applicants the benefit of a presumption of unreasonableness. The effect would be that prima facie unrea- sonableness is established when a disadvantaged group shows that they lack access to the social goods and services that are required to sustain life, health and a basic level of functioning. The burden would shift to the State to rebut this presumption with compelling reasons. This pre- sumption would not be dissimilar to that operating in the context of the equality clause where discrimination on a listed ground is presumptively unfair.94 A clear presumption in favour of this category of socio-economic rights claimants recognises that a social failure to value human dignity is at stake when individuals and groups experience severe socio-economic deprivations. These groups are denied the opportunity to survive and to develop their capabilities. Respect and concern for the value and intrinsic worth of the individuals so afflicted should trigger a pre- sumption of unreasonableness and place a burden of justification on the State. It should be evident that this approach does not require the setting of inflexible minimum standards of delivery for each socio-economic right. As the Court observed in Grootboom, such an approach would be insensitive to the varying needs and circumstances of differently situat- ed groups in society.95 It also does not impose an absolute standard of performance on the State regardless of the social and economic context. It does require placing a strong burden of justi- fication on the State regarding the absence of basic levels of provisioning for groups living in poverty.96 91 The Court indicated that it would take into account the ‘interconnectedness’ of rights’ in assessing whether the state has fulfilled its obligations: Grootboom para 24. Among the measures that the Court indicated would be relevant in relation to access to housing were steps to make the rural areas of the country more viable so as to limit the migration of people from rural to urban areas in search of jobs (para 34). It also indicated that social assistance programmes put in place under sec 27 ‘would be relevant to the state’s obli- gations in respect of other socio-economic rights’: (para 36). 92 See in this regard the submissions of the amici in Treatment Action Campaign (Community Law Centre and IDASA) (24 April 2002, on-line at: www.communitylawcentre.org.za/ser/docs_2002/TAC_MTCT_Case_ Heads_of_Arguments.doc) at para 31.1. 93 The impact of the Court’s rejection of the concept of a minimum core obligation on the practical justicia- bility of socio-economic rights was developed by Adv Wim Trengove in representing the amici curiae in the Treatment Action Campaign case. They argued that practical justiciability is of particular importance in the enforcement of socio-economic rights because the purpose of these rights is to protect the interests of the poor who lack access to basic amenities of life: ‘For most of them, the right of access to court is already a paper right and not a practical reality. The very socio-economic rights designed for their protection and advancement must accordingly not be interpreted in a way that makes enforcement practically impossible’: (para 30.2). 94 Section 9(5). 95 See note 71 above and accompanying text. As Nussbaum argues, ‘individuals vary greatly in their needs for resources and in their abilities to convert resources into valuable functionings’: Women and Human Development (note 3 above) at 68. She gives the examples of a pregnant or lactating woman who needs more nutrients than a nonpregnant woman, a child needs more protein than an adult and a person with paralysed limbs needs many more resources to achieve the same level of mobility as a person without this disability. See further the discussion at 68 – 70. 96 See the similar presumption suggested by L’Heureux-Dubé J in Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th): see note 82 above and accompanying text. However, given the nature of the deprivations at stake and the seriousness of the consequences for the affected groups, this should not be an easy burden to discharge. A rigorous standard of scrutiny is required. In terms of the relational concept of human dignity I have sought to devel- op, dignity fails to be protected when the standard of justification demanded of government in respect of a failure to fulfil basic needs is low. A response that is not proportionate to the nature of the deprivation and its impact communicates a message that the affected group is not wor- thy of equal respect and concern.97 I suggest two elements of a stricter review standard for this category of claims. A stricter standard of scrutiny would require a compelling government purpose for failure to ensure that vulnerable groups have access to basic needs. Competing state priorities and resources-based justifications often give the Courts the most difficulty as they raise issues of separation of powers and institutional competence.98 However, respect for the dignity of human beings requires a serious engagement with these justifications. It is not sufficient as the Court did in TAC to simply assert that ‘[i]t is impossible to give everyone access even to a “core” service immediately.’99 The State should at least be required to establish the factual underpinnings of its justifications based on resources.100 There are different formulations of the threshold to be met concerning resource-based justifications for limiting access to constitution- al rights. For example, the UN Committee on Economic, Social and Cultural Rights requires States to show that their resources are ‘demonstrably inadequate’ for meeting basic needs in the context of other equally important government purposes.101 In Eldridge v British Columbia Human Dignity in Interpreting Socio-Economic Rights 161 97 In Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC), the Court held that ‘when the rights to life, dignity and equality are implicated in cases involving socio-economic rights, they have to be taken into account along with the availability of human and financial resources in determining whether the state has complied with the con- stitutional standard of reasonableness’: (at para 44). Although not explicitly stated, this suggests a tightening of the review standard in a socio-economic rights case when life, dignity and equality are at stake. In Jaftha v Schoeman and others; Van Rooyen v Stoltz and Others 2005 (1) BCLR 78 (CC), the Court held that the rele- vant provisions of the Magistrates’ Court Act 32 of 1944 (permitting sales of execution against people’s homes for debt without judicial oversight) rendered people vulnerable to homelessness as they would no longer quali- fy for housing subsidies. Without such assistance ‘they may be rendered homeless and never able to restore the conditions for human dignity’: (para 39). The Court accordingly held, in the limitations analysis (s 36), that this constituted ‘a severe limitation of an important right’: (para 39). The European Court of Human Rights recent- ly held in Connors v The United Kingdom 2005 (40) EHRR 189 (judgment of 27 May 2004) that the eviction of a gypsy family from a council-owned cite constituted a serious interference with their right to respect for their ‘private and family life’ and their home in terms of article 8 of the European Convention of Human Rights (1950). The Court observed that article 8 ‘concerns rights of central importance to the individual’s identity, self- determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community’: (para 82). The consequence of the eviction was homelessness for the family ‘with the adverse consequences on security and well-being which that entails’: (para 85). These serious consequences war- ranted, in the Court’s opinion, ‘particularly weighty reasons of public interest by way of justification’: In these circumstances, ‘the margin of appreciation to be afforded to the national authorities must be regarded as corre- spondingly narrowed’: (para 86). 98 See, for example, Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC): ‘It should be borne in mind that in dealing with such matters the courts are not institutionally equipped to make the wide-ranging factual and political enquiries necessary for determining what the minimum-core stan- dards…should be, nor for deciding how public revenues should most effectively be spent’: (para 37). 99 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) para 35. 100 In the context of the positive duties imposed by civil and political rights such as the right to vote, the courts have required that the factual basis for justifications based on logistics and costs be established by the State in the context of a limitations enquiry: Minister of Home Affairs v National Institute for Crime Prevention (NICRO) & Others 2004 (5) BCLR 445 (CC) at paras 47 – 51. 101 See notes 69 and 70 above and accompanying text. 1 6 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E (Attorney General),102 the Canadian Supreme Court held that section 15(1) (equality) imposed positive duties on the government to ensure ‘reasonable accommodation’ of disadvantaged groups in government programmes to the point of ‘undue hardship.’103 Whatever formulation is adopted, the Court should scrutinise the State’s evidence and argu- ments closely with a view to assessing whether it constitutes a compelling justification in the context of current South African society for failing to provide basic needs. The State is not nec- essarily required to show the diversion of all resources to the provision of basic needs. Ideally basic needs claims should be addressed in the context of integrated social programmes as opposed to ad hoc, crisis interventions.104 Sometimes, however, temporary solutions may be essential to respond to individual needs until the groups can be catered for within mainstream programmes. What should be required is evidence that the State is taking concrete and well-tar- geted budgetary and other measures to effectively address the situation of those who are expe- riencing severe deprivations of basic needs. Despite the above statement in the TAC case, the Court in fact proceeded to carefully analyse the State’s resource-based justifications for the fail- ure to extend the provision of Nevirapine throughout the public health sector, and concluded that they were unconvincing.105 The Court’s decision in Khosa also illustrates that the Court is both willing and able to engage vigorously with the State’s resource-based justifications for fail- ing to fulfil socio-economic rights.106 The second element of a strengthened review standard concerns the inclusion of a more rigor- ous proportionality analysis.107 The Court comes close to a proportionality test by establishing, as an important factor in the reasonableness enquiry, whether the State has made provision for those in immediate need. As Danie Brand argues, the Court ‘leans significantly closer [to a proportional- ity test] by incorporating such an element into its standard of scrutiny, narrowing the range of pol- icy options that it would be legitimate for government to choose from and thinking about the rel- ative efficiency of different policy options.’108 In TAC, the Court required government to adopt a 102 (1997) 151 DLR (4th) 577 (SC). The Court was faced with a challenge to the failure of the Medical Services Commission of British Columbia to provide sign language interpretation for deaf patients in the health sys- tem. It held that this omission constituted a prima facie violation of their right to equal benefit of the law without discrimination under s 15(1) of the Charter. 103 Eldridge v British Columbia (Attorney General) (1997) 151 DLR (4th) 577 (SC) paras 77 – 80. In response to the government’s argument in the sec 1 (limitations) analysis that the appellants’ claim would have ‘a rip- ple effect throughout the health care field, forcing governments to spend precious health care dollars accom- modating the needs of a myriad of disadvantaged persons’ (at para 91), the Court held as follows: ‘The respondents have presented no evidence that this type of accommodation, if extended to other government services, will unduly strain the fiscal resources of the state. To deny the appellants’ claim on such conjec- tural grounds, in my view, would denude s 15(1) of its egalitarian promise and render the disabled’s goal of a barrier-free society distressingly remote’: (at para 92). 104 As the Court observed in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) a reasonable programme ‘must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs’: (at para 43). 105 See notes 48 - 52 above and accompanying text. 106 Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) at paras 60 – 62 (the inclusion of permanent residents in the social grants system ‘will be only a small proportion of the total cost’). 107 Theunis Roux observes that, although the reasonableness test ‘undoubtedly requires the court to substitute its view of what the constitution requires – the inclusion of the excluded group – for that of the political branch- es’, it ‘stops short…of a full blown proportionality test’: T Roux ‘Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court’ (2003) 10 Democratization 92 at 97. 108 D Brand ‘The Proceduralisation of South African Socio-Economic Rights Jurisprudence, or “What are Socio-Economic Rights For?” ’ in H Botha, A van der Walt and J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 33 at 41. particular policy, namely the provision of Nevirapine (or any other equally appropriate or better method) throughout the public health sector for the prevention of mother-to-child transmission of HIV. This was unavoidable given the fact that there was in fact very little scope for a range of pol- icy choices. Without the provision of Nevirapine (or a similar anti-retroviral drug), large numbers of infants would continue to be infected with HIV and die prematurely as a result of mother-to- child transmission. Where the State does have a legitimate range of policy choices to respond to basic needs claims it would be appropriate for the Court to give the legislature and executive the first opportunity to design an appropriate programme. However, this could be achieved at the remedial stage and should not preclude a finding that government has failed to fulfil its positive duties.109 The inclusion of a more explicit proportionality analysis should include a requirement that gov- ernment show that there are not less restrictive means to achieve its purposes than a total denial of access to basic socio-economic goods and services.110 This should also entail showing that it has taken steps to mitigate the harms suffered as a result of the deprivation. Mitigating measures are particu- larly important when the provision of even a basic level of services to all who need them is unattain- able in the short term. The situation of these groups must remain a matter of high priority and pro- grammes aimed at alleviating the worst impact of the deprivations experienced must be put in place.111 In addition, the State must show that it is monitoring the deprivation of basic needs, and devising programmes and strategies for remedying the situation with the shortest possible period of time.112 In many respects, this inquiry resembles the limitations inquiry under section 36. This is an inevitable consequence of the model of reasonableness review adopted by the Court for meas- uring compliance with the State’s positive obligations under sections 26 and 27. In the Khosa case, the Court alluded to the ‘difficulty in applying section 36 of the Constitution to the socio- economic rights entrenched in sections 26 and 27 of the Constitution.’113 The Court held that Human Dignity in Interpreting Socio-Economic Rights 163 109 This could be facilitated through the use of the remedy of supervisory jurisdiction, which is discussed fur- ther below. 110 J De Waal, I Currie and MG Erasmus describe this element of the proportionality analysis as follows: ‘The limi- tation will not be proportionate if other means could be employed to achieve the same ends that will either not restrict rights at all, or will not restrict them to the same extent. The Bill of Rights Handbook (4th ed) (2001) 161 – 162. In Eldridge v British Columbia (Attorney General) (1997) 151 DLR (4th) 577 (SC), the Canadian Supreme Court held, in its sec 1 (limitations) enquiry, that the government had ‘manifestly failed to demonstrate that it has a reasonable basis for concluding that a total denial of medical interpretation services for the deaf con- stituted a minimum impairment of their rights’: (para 87). The Ministry of Health had decided not to fund the interpretation programme even in part. In this regard, the Court held: ‘Other options such as the partial or inter- im funding of the program offered by the Western Institute for the Deaf and Hard of Hearing, or the institution of a scheme requiring users to pay either a portion of the cost of interpreters or the full amount if they could afford to do so, were either not considered or were considered and rejected’: (at para 93). 111 In General Comment No 3 (note 69 above), the UN Committee on Economic, Social and Cultural Rights empha- sised that ‘even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances’: (at para 11). It goes on to highlight the continuing obligation to protect the poor even during periods of resource scarcity: ‘Similarly, the Committee underlines the fact that even in times of severe resource constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes’: (para 12). 112 The UN Committee on Economic, Social and Cultural Rights has adopted the view that the State’s duties ‘to monitor the extent of realization, or more especially of the non-realization, of economic, social and cul- tural rights and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints’: General Comment No 3 (note 69 above), para 11. 113 Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) para 83. See also the academic commentaries cited by the Court at note 88 of the judgment. 1 6 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E it was not necessary to decide the issue of whether ‘a different threshold of reasonableness’ is called for in sections 26 and 27 than is the case in section 36.114 An advantage of conducting the inquiry into the justifiability of the State’s acts or omission in terms of the general limita- tions clause (section 36) is the requirement of a law of general application. This has the impor- tant benefit that limitations on people’s access to basic needs would have to be publicly debat- ed and adopted by the elected representatives of the people.115 However, if the internal limita- tions in sections 26(2) and 27(2) are going to do the major work in assessing the State’s com- pliance with its positive duties, it should encompass a high standard of justification, including a more rigorous proportionality analysis, at least in respect of basic needs claims. The standard of scrutiny may vary in intensity, depending on the nature of the interests at stake. A strict level of judicial scrutiny is appropriate when a case concerns the claimants’ inability to gain access to a minimally adequate level of resources to survive and function effectively.116 This strict form of scrutiny should not be triggered only in emergency or crisis situations. The Court in Grootboom also referred in its order to those ‘living in intolerable conditions’.117 This clearly con- templates a broader set of circumstances than emergencies. In insisting on the strong judicial pro- tection of basic survival needs, we should not lose sight of the fact that we are concerned not only with physical survival, but the essential material conditions that each person needs to develop their capabilities and to function effectively as members of society. This includes the physical, psycho- logical and social dimensions of their personhood.118 The standard of review can be progressively relaxed when claims are made to levels of social provisioning that are less closely related to peo- ple’s ability to survive and function effectively in society. This graduated standard of review is accommodated by the concept of ‘progressive realisation’ in sections 26(2) and 27(2).119 Thus while a stronger standard of review is justified for basic needs claims, it seems appropriate to allow the State a greater latitude (in terms of both time and resource allocation priorities) when the claim involves more tertiary levels of provisioning. In the case of children, material deprivation can have a profound impact on the future development of their basic capabilities, calling for heightened scrutiny of the impact of such deprivations.120 114 Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) para 84. For a recent view on the relationship between the internal limitations in sections 26 and 26 and the general limitations clause in s 36, see K Iles ‘Limiting Socio-Economic Rights: Beyond the Internal Limitations Clauses’ (2004) 20 SAJHR 448. 115 It is noteworthy that in respect of the negative violation of the duty not to deprive people of existing access to socio-economic rights, the Court has now held in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (1) BCLR 78 (CC) that justification is appropriately considered in terms of the general limitations clause. See paras 31 to 34. 116 David Bilchitz refers to people’s basic or ‘urgent’ interest ‘in being free from threats to one’s survival, being free from severe physical suffering, and not being exposed to serious health risks that impair one’s ability to act’: ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2002) 118 SALJ 484 at 490. He argues that the urgency of the interests at stake justifies strong judicial protection (at 491). 117 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 99. 118 See the discussion of Nussbaum’s list of ‘central human capabilities’ at notes 26 to 29 and accompanying text. Bilchitz also refers to people’s more extensive interest ‘in living in an environment that is conducive to their flourishing and development on physical, emotional and mental levels’: (note 116 above) 490. 119 See the discussion of the Court’s interpretation of ‘progressive realisation’ in Liebenberg (note 12 above) ch 33, 41 – 42. 120 The drafting of section 28(1)(c) of the Constitution suggests a stronger standard of scrutiny for children’s socio-economic rights. Prima facie children are guaranteed a basic level of socio-economic rights, with lim- itations to this entitlement falling to be determined in terms of the general limitations clause (sec 36). For a critical evaluation of the Court’s approach to the interpretation of children’s socio-economic rights, see Liebenberg (note 12 above) ch 33, 48 – 52. The final area where the Court could strengthen its constitutional response to socio-economic rights claims is in the area of remedial jurisprudence. A detailed discussion of this aspect is beyond the scope of the present paper. However, it is evident that the nature of the urgent inter- ests at stake in the socio-economic rights claims that are the focus of this paper demands an appropriate and effective remedy. The orders handed down in cases such as TAC will ultimate- ly result in the extension of critical benefits to significant numbers of people.121 However, the Court has indicated that a finding that a government programme is unreasonable will not nec- essarily imply that all in desperate need should receive relief immediately.122 Nonetheless, as the Court indicated in TAC, ‘[e]very effort must, however, be made to do so as soon as rea- sonably possible.’123 There will be situations where it would be impossible to immediately rem- edy a situation that has been found to be in violation of sections 26 and 27, or where the grant- ing of relief to only the litigants before the court would be inequitable to other similarly-situ- ated groups. The Court’s broad power to make ‘any order that is just and equitable’124 pro- vides the remedial flexibility to make appropriate orders in these situations. However, sight should never be lost of the fact that there are serious interests of human survival and dignity at stake. The language of the orders handed down by the Court should reflect this fact, and sig- nal the requirement that the State remedy the defect ‘diligently and without delay.’125 This is exemplified in the mandatory nature of the order handed down in TAC combined with the duty to take the steps specified in the order ‘without delay.’126 When it is not manifestly inappro- priate or unjust, the Court should lean in favour of granting individual remedies to the suc- cessful litigants.127 This reflects the value we should place on the dignity of each person. The TAC order has been criticised for its failure to grant the supervisory order sought by the applicants.128 While the Court accepted that such orders could be given in appropriate cir- cumstances, it indicated that that they should generally not be made in those terms ‘unless this is necessary’ to secure compliance with a court order.129 The Court went on to express its faith that the government would respect and execute its orders. However, an equally important con- Human Dignity in Interpreting Socio-Economic Rights 165 121 This of course assumes that the State diligently executes the Court’s orders and that there is effective mon- itoring and advocacy in respect of the implementation of the orders by institutions such as the SA Human Rights Commission, the press and NGOs. On the efforts of the Treatment Action Campaign in seeking to ensure the implementation of the Treatment Action Campaign order, see M Heywood ‘Contempt or Compliance: The TAC Case after the Constitutional Court Judgment’ (2003) 4 ESR Review 7. 122 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 69; Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) para 125. 123 Treatment Action Campaign para 125. 124 Sec 172(1)(b) of the Constitution. 125 See sec 237 of the Constitution. 126 Treatment Action Campaign para 135. The Grootboom order has been criticised for its purely declaratory nature and the impact this had on the slow implementation of the order: see K Pillay ‘Implementation of Grootboom: Implications for the Enforcement of Socio-economic Rights’ (2002) 6 Law, Democracy & Development 255. 127 As the Court pointed out in August v Electoral Commission 1999 (3) SA 1 (CC): ‘We cannot deny strong actual claims timeously asserted by determinate people because of the possible existence of hypothetical claims that might conceivably have been brought by indeterminate groups’: (at para 30). 128 See D Bilchitz ‘Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-economic Rights Jurisprudence’ (2003) 19 SAJHR 1 at 23 – 26. The High Courts in both the Grootboom and TAC cases handed down supervisory orders: Grootboom v Oostenberg Municipality & Others 2000 (3) BCLR 277 (C) at 293 H – 294 C; Treatment Action Campaign & Others v Minister of Health & Others 2002 (4) BCLR 356 (T) at 386 I – 384 H. 129 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) para 129. 1 6 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E sideration, as Geoff Budlender has suggested, ‘is the risk of severe consequences (such as the loss of life)’ in the event of a failure by the government to comply with its obligations.130 In cases where severe economic deprivation threatens people’s lives and capacity for future devel- opment, this fact should weigh heavily with the Court in considering a supervisory order. This is particularly the case where the breach cannot be remedied by a single action,131 but requires a series of structural reforms and administrative actions taken over a period of time.132 Finally, if there are a range of policy options for responding to basic needs claims (as in the Grootboom situation), the remedy of supervisory jurisdiction can be formulated to allow the State to select the appropriate policy while retaining judicial supervision in respect of constitutionality of the policy choice and its implementation. In this way, a supervisory remedy may be crafted that respects the roles and competencies of the legislature and executive without abdicating judicial responsibility for the enforcement of socio-economic rights. VI Conclusion At the core of the value of human dignity lies the injunction to respect the intrinsic worth of all human beings. Drawing on Nussbaum’s work, I have argued that we value human beings by viewing them in the context of the reality of their lives and inquiring what they are actually able to be and do. Through this inquiry we are confronted with the importance of social power rela- tions and material conditions for people’s ability to survive and develop their capabilities as individual and social beings. To constitute ourselves as a society that values human dignity, we must develop appropriate responses to conditions of disadvantage and material deprivation in social policy and constitu- tional adjudication. In constitutional adjudication this requires a focus on the actual impact of the State’s actions or omissions on the life chances of disadvantaged groups. It also demands a proportionately urgent response to conditions that undermine people’s ability to survive and develop their capabilities. This is promoted by placing a strong burden of justification on the State in claims where a deprivation of access to basic human needs is at stake. This approach does not advocate a two-tier standard of review based on a rigid distinction between ‘core’ and ‘non-core’ needs. If minimum core obligations are conceived as universal, abstract and a-contextual standards of state provision, they will certainly be unjust to a range of groups who do not fit the background norms and conditions that inform the setting of these standards. Instead what is envisaged is a continuum of judicial scrutiny informed by a contex- tual, evolving assessment of the position of the claimant in society, the nature of the resource or service to which access is sought, and the impact of the denial of such access on the affect- ed group. In many respects the Constitutional Court’s evolving jurisprudence on socio-economic rights 130 G Budlender ‘Access to Courts’ (2004) 121 SALJ 339 at 358. 131 For example, the ‘reading in’ remedy granted in Khosa & Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) to cure the omission of permanent residents from the Social Assistance Act 59 of 1992 (at para 98). 132 See: W Trengove ‘Judicial Remedies for Violations of Socio-Economic Rights’ (1999) 1 ESR Rev 8 8 at 9 – 10. promotes the contextual, relational conception of human dignity developed in this paper. However, our constitutional response to claims of material deprivation could be strengthened, and I have suggested how this could be accomplished within the Court’s model of reasonable- ness review and remedial jurisprudence. A society characterised by stark inequalities and deep poverty is most in peril of failing to value the human dignity of the poor. The role of the Constitutional Court is to hold us account- able to the vision we articulated when we adopted our Constitution ‘so as to -…[i]mprove the quality of life of all citizens and free the potential of each person.’133 Human Dignity in Interpreting Socio-Economic Rights 167 133 Preamble to the 1996 Constitution. The Fiscal Implications of Social and Economic Justice: An Overview of the Changing Theoretical Framework E L S A B É L O O T S Professor, Department of Economics, University of the Free State, Bloemfontein I Introduction The addition of economic and social rights, or second-generation rights as they are sometimes classified, has vastly expanded the claimed domain of human rights. Economic, social and cul- tural rights1 are no longer neglected as they once were, relative to civil and political rights. Despite this improved awareness, we still live in a world where social and economic justice is frequently ignored and repeatedly violated and threatened. In many quarters threats are caused and entrenched by the process of globalisation, global environmental destruction and political instability between and within countries. In contrast with these external threats, a large num- ber of developing countries that are sensitive to calls for social and economic justice simply do not have the fiscal means to address all of these needs or injustices. The development of awareness of social and economic rights issues within the international community took quite some time. While the General Assembly of the United Nations adopted the Universal Declaration of Human Rights on 10 December 1948 it was not immediately fol- lowed by, in Smith’s2 words, ‘a binding enforceable tabulation of rights’. It took 18 years before consensus was reached on the text of the International Covenant on Economic, Social and Cultural Rights (1966) and a further ten years before the instrument attracted sufficient ratifi- cation to enter into force in 1976. The importance of social and economic rights was further strengthened by the influential 1986 Principles on the Implementation of Economic, Social and Cultural Rights as well by the 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.3 Despite the fact that these declarations and guidelines have achieved wide recognition internationally and status within the United Nations, the framework on the core elements of these rights, the setting of standards and the identification of minimum state obli- gations are still in the development stage and incomplete. 1 Economic, social and cultural rights are grouped together in the International Covenant of Economic, Social and Cultural Rights. For the purpose of this research only the social and economic dimensions will be included. 2 RKM Smith Textbook in International Human Rights (2003). 3 For more details on the development of these declarations and guidelines, see Smith (note 2 above), and D Brand & S Russell (eds) Exploring the Core Content of Socio-economic Rights: South African and International Perspectives (2002). The state obligations and the related fiscal implications within the social and economic justice context are controversial. Two related issues are of importance when it comes to what the state’s obligations are in this regard. The first issue refers to the debate on equity and efficien- cy. The second issue refers to the particular rights included in the country’s constitution. Within the social and economic justice debate issues such as equity and efficiency are firmly embedded. A reasonably efficient economy where perfect competition exists and markets are clearing on a continuous basis should in theory also ensure sustainable social justice. An equitable social dis- pensation could in theory also support an efficient economy. This implies that equity and effi- ciency should in theory be mutually reinforcing. In practice, countries and communities that experience social and economic injustices are struggling to sustain equity and efficiency, and mostly regard them as trade-offs. The second issue, namely which social and economic rights are included in a particular coun- try’s constitution, also impact on the state’s responsibility. Apart from the fact that the International Covenant on Economic, Social and Cultural Rights includes rights such as equal pay for equal work, trade union rights, child labour laws, a number of educational rights and academic, scientific and artistic freedom, the South African Constitution has gone further and has included the aforementioned rights as well as several rights not explicitly stated in the Covenant. These include rights such as access to water and to a clean and healthy environ- ment.4 The South African Constitution5 therefore entrenched the following social and eco- nomic rights: labour rights; the right to have access to land, housing, health care services, suf- ficient food and social security; children’s rights to basic nutrition, shelter, basic health care and social services; the right to basic education and in some cases further education; and a number of detained person’s rights. These expanded and detailed lists of rights have serious implications for the state’s obligations in this regard. The dilemma of states having limited resources led to the development of the concept of min- imum state obligation. Two important questions arise from this minimum state obligation con- cept. The first question is how human rights in general and social and economic rights in par- ticular could be addressed if states do not have the available resources even to meet the mini- mum state obligation. The second question relates to the identification of a minimum state obli- gation if all the components of the stated rights are important and the ultimate goal is full implementation. The aim of this chapter is to discuss the latest approaches that have developed in theory and literature on social and economic justice on how to deal with these dilemmas. The analysis on this topic will commence with some historical background by discussing the way approaches and theories on social and economic justice were aligned with the political ide- ologies of the day. Each of these approaches will be linked to the role of the state, the main- stream theoretical economic thinking of the time and the implied fiscal implications. This will be followed by a discussion of the latest theoretical approaches to addressing social and eco- nomic justice, with particular reference to the changing structural and responsibility frame- works, respectively. In this regard the discussion will predominantly focus on the theoretical contribution of Amartya Sen and his role in the paradigm shift on development and human rights as reflected in the various Human Development Reports of the United Nations Development Programme. The analysis reveals that social and economic rights have increased in importance since the Fiscal Implications of Social and Economic Justice 169 4 Brand & Russell (note 3 above) at 13, 14. 5 Act 108 of 1996. 1 7 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E early 1990s. This trend, as well as the inclusion of third-generation rights, has blurred the pre- vious artificial division between first-, second- and third-generation rights to form a broader concern with all rights. The broader and extended redefinition of the concepts of development led to a convergence of the human rights agenda and the human development agenda, in both concept and action, including the notion that they are mutually reinforcing. This convergence has extended the leftist state-centred model of accountability to a more centre-leftist approach where the state’s responsibility changed to include non-state actors. Another important trend is the increased importance of the state’s obligation beyond national borders. II The Changing Framework of Human Rights: An Overview The starting point of this discussion is the notion that the appropriate distribution of income and wealth has been determined by the political system or ideology of the day. The economic system is normally aligned with this ideology in order to achieve maximum efficiency in the production and distribution of commodities. These particular ideologies formed the basis of the human rights debate over the past fifty years. From this basic starting point, the discussion will centre on the ideologies on the extreme right and left of the spectrum, as well as the more recent centre leftist approach, as illustrated in Figure 1. The framework in Figure 1 also refers to the role of the state within the particular ideology, the most prominent economic and/or social the- orists of the time and the implied state obligation. The extreme right of the spectrum is the free market ideologies such as the classic liberals and the neo-liberals. Classical liberalism entails economic liberalism (laissez-faire capitalism) and the belief that the market is a self-regulating mechanism that will deliver general prosperity and opportunities for all – in other words, will ensure social justice. The central pillars of neo-lib- eralism are the market and the individual. The neo-liberal goal is to ‘roll back the frontiers of Social democracy Modern liberalism Social democratic Rawls Large and continuous Sen Medium and declining Third way Competitive Rome and Lucas Classical liberalism Neo-liberalism MinimalDevelopmental Medium and continuous Friedman Von Hayek Minimal Ideologies Role of the state Theorists Fiscal implications Figure 1 FRAMEWORK FOR THE FISCAL IMPLICATIONS OF SOCIAL AND ECONOMIC RIGHTS the state’.6 Unregulated markets will deliver efficiency, growth and prosperity. These free mar- ket ideologies emphasised that the dead hand of the state has a damaging effect upon human affairs. These extreme right ideologies prefer a minimal state or in some case a developmental state where individuals enjoy the widest possible degree of freedom. State intervention in the economy is limited to the provision of a police force and military of some kind, as well as a judicial system. Economic, social, cultural, moral and other rights and responsibilities belong to the individual and are seen as the responsibility of civil society.7 Civil rights therefore pre- dominate over human rights. The leading economists within this paradigm are free-market economists such as Milton Friedman and Friedrich von Hayek, who viewed state intervention as something that reduces competition, efficiency and production. Due to the minimalist state and the lack of attention to human rights, state obligation is minimal and limited. Stronger emphasis on the need for social and economic justice originated predominantly within the social democracy and modern liberal paradigms, fitting into the extreme left of the spectrum. The ideology of social democracy represents a balance between the market and the state, between the individual and community. It is also in favour of a compromise between the capitalistic generation of wealth and a desire to distribute wealth in accordance with moral principles.8 The main characteristic of modern social democratic thought is a concern for the underdog in society – the weak and the vulnerable.9 Principles such as welfarism, redistribution and social justice are important. Social democracy overlaps with modern liberalism, which is more in favour of a large or interventionist government, implying economic management and social regulation. The most influential modern attempt to reconcile the principles of modern liberalism and social democracy with the politics of welfare and redistribution was undertaken by John Rawls in his Theory of Justice (1970). Rawls proposed a theory of justice as fairness that is based on the belief that social inequality can be justified only if it is of benefit to the least advantaged. It should pro- vide them with an incentive to work. For most people the fear of being poor will outweigh the desire to be rich; therefore redistribution and welfare can be defended on the grounds of fairness. The presumptions of his earlier work were modified in Political Liberalism (1993). Social-democratic states represent a shift from the negative minimalist view of the state to a positive view of the state. Social-democratic states intervene to bring about broader social restructuring, usually in accordance with principles of fairness, equality and social justice. They focus on creating an enabling state, dedicated to the principle of individual empowerment. From a fiscal viewpoint, this paradigm could contribute to a free for all principle or cradle to grave welfare, and the subsequent emergence of the so-called welfare state. The continued growth in public spending, with eroding economic incentives and personal freedom, constitutes a serious fiscal threat to economies since it is leading to government overload.10 Analysis in developed economies by Lindbeck, as well as by Tanzi and Schuknecht,11 argued that the wel- fare state has developed into a transfer state, where redistributions of income occur among peo- Fiscal Implications of Social and Economic Justice 171 6 A Heywood Politics (2002) at 96. 7 Heywood (note 6 above) at 95. 8 The European Social Charter of 1961, where jurisdiction was limited to Europe, gave rise to the leftist approach to the realisation of economic and social justice and the subsequent welfare-doctrine. 9 Heywood (note 6 above) at 57. 10 E Calitz & K Siebritz: ‘Macroeconomic Stability and Developmental Expectations: Fiscal Consolidation in Post-apartheid South Africa’ (2003) Paper Presented at the Biennial Conference of the Economic Society of South Africa, Somerset West: September 2003. 11 See reference in Calitz and Siebritz (note 10 above). 1 7 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E ple of comparable living standards, rather than from the rich to the poor. When expanding social expenditure coincides with recession and declining tax revenues, it could have serious fis- cal implications. This extreme leftist approach implies a large and continuous state obligation, with serious consequences for states with limited fiscal means. The analysis of the framework on social and economic justice shows that both the extreme right and leftist approaches failed in setting acceptable standards and responsibilities in ensur- ing social and economic justice for all. The extreme right approach envisaged minimum state intervention and required the individual through civil society to be responsible if social and eco- nomic rights are claimed. In contrast, the extreme leftist approach placed the responsibility for the provision of a broad spectrum of social and economics rights solely in the hands of the state. The state’s fiscal responsibility within these two approaches also varies between extremes of large and continuous and minimal and limited responsabilities. These two extreme approaches do not provide acceptable solutions to the problem of developing a framework for social and economic rights or to how these rights could be addressed in countries with limited fiscal means. The more recent trend in facilitating economic and social justice is a shift to the right from social-democratic states (or in some cases being seen as centre-left) and is known as the third way (see Figure 1). Third-way politics draws on various ideological traditions such as modern liberalism, one-nation conservatism and modernised social democracy.12 It serves as an alter- native to old-style social democracy and neo-liberalism. Within this framework the importance of the phenomenon of globalisation and its contribution of the knowledge economy is accept- ed, as are individual skills and both business and labour flexibility. Government still has a vital economic and social role, but this role is more focused and concentrates on enhancing interna- tional competitiveness through education and skills development and strengthening civil socie- ty to contain the pressures generated by market capitalism. Third-way proponents call for a balance between rights and entrepreneurialism, on the one hand, and social duty and moral responsibility, on the other. In contrast with cradle to grave welfare, third-way politics is in favour of the essential modern liberal belief of helping people to help themselves. This supports a workfare state (in contrast with a welfare state) in which government support in terms of ben- efits or education is conditional upon individuals seeking work and becoming self-reliant. The key third-way values are opportunity, responsibility and community involvement. Two of the most influential schools of thought within the so-called third way are those that emphasise endogenous growth, which tend to be more centrist in nature, and those of Amartya Sen, which are more centre-left in nature. Although the focus of this analysis will be predomi- nantly on the centre-left approach in general and specifically those of Sen, it is worth noting the views of the endogenous growth theories. The endogenous growth models13 propose an active role for public policy in the promotion of economic development through direct and indirect investment in human capital formation. They also support the encouragement of foreign private investment in knowledge-intensive industries. Although these models fit into the general third-way political stream, they offer no suggestions on how human rights will be addressed. In contrast, Sen’s contribution, which will be discussed subsequently, falls within the broader third-way stream. This latest trend in the facilitation and promotion of human rights in general and eco- 12 See Heywood (note 6 above) at 58, 59 for a detailed discussion. 13 See PM Romer ‘The Origins of Endogenous Growth’ (1994) Journal of Economic Perspectives at 8 for a detailed discussion on endogenous growth. nomic and social justice in particular recognises that civil society can play a crucial role in enhanc- ing the traditional function fulfilled by government. The recognition of the role of non-state actors constitutes a revolutionary advancement in the discourse on human rights. Apart from the fact that it reduces fiscal pressures on the state, evidence shows that it contributes in general towards greater self-reliance and the creation of capabilities. The general well-being of society entails a par- ticular role for the state vis-à-vis an efficient and equitable market, and a healthy environment in a just economic and social context.14 The various theories on and approaches to the changing structure as well as the shared responsibility between the state and civil society on matters per- taining to social and economic justice are discussed below. III Modern Social and Economic Justice Theories and Approaches: Changes in Structure and Responsibilities The movement from the extreme left thinking on social and economic justice to a more centre- leftist approach, where the responsibility for human rights is shared, is a paradigm shift from the traditional viewpoint held on the general framework of these rights. This shift is evident in the structure of these rights as well as in the conventional notion that these rights are the sole responsibility of the state. The structure and therefore the concept of rights directly influences the state’s duty or programme of action and they are therefore mutually reinforcing. (A) CHANGING STRUCTURAL FRAMEWORK The structural human rights framework has changed significantly in recent times. The shift in para- digm can be ascribed to the broader and more inclusive concern with all rights, the influence of the human development approach on the thinking on human rights, and, lastly, the narrowing of the divide and convergence between the human rights agenda and the human development agenda. The first and perhaps least prominent influence on the changing human rights framework is evident in the shift from a narrow and dominant focus on civil and political rights to a broad- er concern with all rights, including second-generation rights such as social, economic and cul- tural rights, as well as third-generation rights such as the right to development and the right to a safe environment. Although second-generation rights have been part of the original human rights framework, they have increased in prominence over the past decade or more. Their prominence was further strengthened by action from within the international legal human rights movement itself, where so-called third-generation rights such as the explicit right to development and gender rights were included in the human rights framework of the United Nations (see the 1986 UN Declaration on the Rights to Development and the Vienna World Conference on Human Rights of 1993). The fact that an ever-increasing number of ratifying countries have to report to various United Nations committees on their respective performanc- es also serves to enhance awareness in this regard. The second shift involves the increased awareness since the early 1990s of the importance of human development in the development process of countries.15 Where the earlier views on Fiscal Implications of Social and Economic Justice 173 14 N Malan ‘Civil Society and the Right to have Access to Social Security in South Africa’ (2004) Unpublished Research Paper, RAU: Johannesburg. 15 See the various Human Development Reports of the United Nations Development Program (UNDP) from 1991 to 2004 for details on the developments in the human development debate. 1 7 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E development were purely focused on a narrow top-down approach, where an increase in per capita income was seen as the only prerequisite for development, the human development approach is broader and bottom-up in nature. Under the auspices of human development the notion is held that development only takes place through the process of enlarging people’s choices by expanding human functionings and capabilities. According to the United Nations Development Program16 the essential capabilities are for people to lead a long and healthy life, to be knowledgeable and to have access to the resources needed for a decent standard of living. These capabilities reflect the freedom to achieve functionings (valuable things a person can do or be), implying that human development is freedom. Human development is ‘development of the people, for the people and by the people.’ 17 However, the most pronounced change in the structural framework is evident in the link between human rights and human development. These two concepts followed parallel paths in the past, as can be seen in the fact that human development was dominated by economists, social scientists and policy-makers, while political activists, lawyers and philosophers dominat- ed the human rights debate. Over the past decade the two hitherto parallel paths have con- verged in both concept and action, implying that the divide between the human rights agenda and the human development agenda is narrowing. The 2000 Human Development Report18 links the mutually reinforcing nature of the two concepts as follows: ‘Human development thus contributes to building a long-run strategy for the realisation of rights’. Amartya Sen, who won the Nobel Prize in 1998,19 has offered the most significant theoret- ical contribution to the conceptualisation of the human development and human rights debates, respectively. Through his theoretical contribution, he also firmly entrenched the link between the two concepts. Sen was critical of welfarism and utilitarianism, on the one hand, and of the Rawlsian approach, on the other. As Sen put it: ‘Economic growth cannot be sensibly treated as an end in itself. Development has to be more concerned with enhancing the lives we lead and the freedoms we enjoy’.20 He sees human rights as an important element of human develop- ment in general and social and economic freedoms in particular. Freedoms, or capabilities as he calls them, require that a distinction be made between substantive opportunities and freedom of processes.21 His capability approach, which was subsequently incorporated in the human development paradigm, focuses on what he calls the capability to function. This capability to function is what really matters for the status of a poor or non-poor person. Capability, which is the opportunity aspect of freedom, is the opportunity to achieve valuable combinations of human functionings. He distinguishes between realised functionings (what a person is actually able to do) or on the set of alternatives she has, or real opportunities. Functioning is what a per- son does with the commodities of given characteristics he or she then comes to possess or con- trol. He defines capabilities as ‘the freedom that a person has in terms of the choice of func- tioning, given his personal features and his command over commodities’. Functioning reflects the various things a person may value doing or being. This may vary from elementary ones such as being adequately nourished and being free from disease to taking part in the life of the com- munity and having self-respect. 16 UNDP (note 15 above) at 17. 17 UNDP (note 15 above) at 17. 18 UNDP (note 15 above) at 2. 19 Development as Freedom (1999); Commodities and Capabilities (1985); On Economic Inequality (1997). 20 A Sen Development as Freedom (1999). 21 A Sen ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy & Public Affairs at 332. Sen’s capability approach acknowledges that two persons can have different substantial opportunities, even in circumstances where they have the same set of means or incomes. This approach therefore distinguishes between means or income, on the one hand, and actual oppor- tunities on the other. Freedom is therefore the opportunity to achieve combinations of func- tionings. Sen22 remarks that the general idea of freedom with its many distinct components seems particularly relevant to the theory of justice. His contributions to this debate led to wider recognition of the idea that ‘human rights links directly to the safeguarding and advance of human freedoms’.23 With his capability approach Sen established the foundation on which the human develop- ment approach was based, and his theoretical contributions on freedom contributed to the con- vergence between the human development and human rights concepts. The redefining of the concept of human rights to include a broader and more inclusive viewpoint on the importance of all rights as well as the importance of choices for all people within the human development framework not only established a permanent link between the two, but also shifted the state’s obligations in almost all respects. (B) CHANGING RESPONSIBILITY FRAMEWORK Since the early 1990s the extreme leftist approach and its related state-centred model of account- ability to social and economic justice has been criticised from various quarters. The criticism came from state actors themselves in response to fiscal constraints as well as from non-state actors who are of the opinion that within the human development framework the range of choices of people could only be enlarged if they form part of the decision-making process on choices that affect their daily lives. Suggestions are coming to the fore on extension of the accountability from states to non-state actors as well as the state’s obligation beyond national borders. Two important and interrelated issues arise from this new notion on the state’s obligation: first the minimum state obligation, which is linked to the realisation of rights; and second how the state can strengthen and support social and economic rights within this new framework. On the realisation of rights, Sen provides answers firstly through his so-called threshold con- ditions, and secondly, through his so-called institutionalisation critique and feasibility cri- tique.24 In his reference to threshold conditions, he asks the question whether a specific human right is important enough to cross the threshold to social significance. His analysis of thresh- olds relates to both the seriousness and the social influenceability of particular freedoms or capabilities. On the institutional critique of economic and social rights, the importance of insti- tutions in the realisation of these rights is acknowledged, but when this does not exist, the eth- ical significance of these rights provides good grounds for seeking realisation through institu- tional expansion and reform. The feasibility critique argues that even with the best of efforts it may not be feasible to arrange the realisation of many of the alleged economic and social rights for all. Sen also asks why complete feasibility should be a condition of cogency of human rights when the objective is to work towards enhancing their actual realisation, if necessary through expanding their feasibility. An understanding must prevail that a change in the prevailing cir- cumstances must be striven for in order to make the unrealised rights realisable. Sen25 con- Fiscal Implications of Social and Economic Justice 175 22 Sen (note 21 above) at 335. 23 UNDP (note 15 above) at 15. 24 Sen (note 21 above) at 330, 346-348. 25 Sen (note 21 above) at 356. 1 7 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E cludes by referring to the fact that human rights are only sustainable by a continuous process of open public reasoning, which may or may not be reflected in the legal framework of a coun- try. In cases where it is not reflected in the legal framework, other ways of implementing these rights are through public recognition, agitation and monitoring. This again strengthens the role and responsibility of non-state actors in the human rights debate. Russell26 addresses the issue of the state’s obligation by referring to the fact that the Intern- ational Covenant on Economic, Social and Cultural Rights does not necessarily anticipate that all resources will come from the state. The implication was rather that the resources available from the broader society – in other words, public and private sectors – should be mobilised by the state. He also stresses the responsibilities of richer countries to supply funding to poorer countries, suggesting the international obligation of states. Secondly, many resource needs are centred on the misallocation of resources, eg expensive weapons instead of food security. The misallocation problem could be solved by a reordering of the state’s priorities. Thirdly, coun- tries facing severe resource constraints can focus on progressive realisation by developing plans that states its obligations over time. Fourthly, the state has an obligation to ensure that rights are not violated. Although these solutions sound feasible, all these suggestions predominantly still focus on the central role of the state decision-making process and do not allow for partic- ipatory development on a broader scale. In addressing the issue of the state’s responsibility within the broader framework of human development and the links with human rights, the United Nations through its Human Develop- ment Report27 suggests that, although a shift is evident from state to non-state actors, the state still has the responsibility to strengthen its policies and social arrangements, respectively, in securing human freedoms. On the policy front, the state has an obligation to implement poli- cies that help realise social and economic rights, especially for the most deprived. This must, however, be based on a participatory process and be transparent. The state’s social arrange- ments should be effected through norms, institutions, legal frameworks and an enabling eco- nomic environment. In addressing the norms issue, the state has the responsibility to promote awareness of human rights by building and promoting these through press freedom, human rights education in schools, etc. The state has the obligation to ensure that appropriate institu- tions are in place to support certain human rights (eg children’s rights) that cannot be guaran- teed without strong and effective institutions. States also have the first obligation to participate in the international rights regime and to establish legal frameworks. Finally, the state is obli- gated to create an economic environment that supports human rights. It should ensure that eco- nomic growth is pro-poor, pro-rights and sustainable. A number of related approaches have developed to support the notion that the state’s accountability should be expanded to include non-state actors. Heller28 presented the International Monetary Fund’s perspective when he concludes that social justice is far better achieved when those directly involved reveal their own values and put them together. This per- spective is more inclusive and allows for participatory development. Smith, 29 on the future of the international dimension of human rights, remarked that the responsibility of the realisation of human rights has to be extended outside the nation-state domain. Non-governmental organ- 26 Brand & Russell (note 3 above) at 17. 27 UNDP (2000) 7, 8. 28 PS Heller ‘Wealth Creation and Social Justice: an IMF perspective’ (2003) Paper Presented at the World Council of Churches/World Bank/IMF Meeting, February 2003. 29 Smith (note 2 above) at 340. isations (NGOs), civil society and non-state agents all have a responsibility. These various role players in the funding chain of human rights are also emphasised by Hegarty and Leonard,30 who include the role and responsibility of the global economy, foreign aid agencies, the link between trade and human rights, corporate codes of conduct and the role of NGOs. The involvement of non-state actors in supporting the state’s accountability in the human rights debate is, within the context of the human development framework, mutually reinforc- ing. In the 2000 Human Development Report31 various examples of the mutual participation of state and non-state actors are given. If the state ensures civil and political rights in general, poor people will be empowered to claim their social and economic rights. Ensuring freedom for NGOs and media and worker organisations can enhance the participation of poor people in decision-making processes and policy-making that affect their lives. In the same vein, the right to housing or education does not imply a right to free services or to a state handout. These are claims to social arrangements and policies that promote access to these rights through both the market (housing) and the state (free primary education). Worldwide public spending on social and economic rights is inadequate and unevenly distributed. Faster economic growth is needed to generate more resources to support social and economic justice. But, within the context of the human development framework, economic growth on its own is not enough. It has to be accompanied by transparent and participatory policy reforms that are aimed at channelling funds into poverty eradication and human development. On the international front the state’s responsibility to support and ensure human rights and human development is expanding. Apart from strengthening regional initiatives for human rights, individual states should also embark collectively on continuous efforts for peacemaking and peacekeeping. Individual states, in their responsibility through development cooperation in the form of aid flows, debt relief, access to trade and financial flows, and ensuring stability in the global economy, can all support the full realisation of rights in the poorest and least devel- oped countries of the world. Again, non-state actors such as multinational corporations are also accountable and have an obligation to raise the standard of human rights. IV Conclusion The fiscal implications of social and economic rights are firmly embedded in political ideolo- gies and the subsequent role of the state. This has clearly being shown in the changing rights framework, where the first shift occurred from the right side of the spectrum, which proposed no formal entrenchment of social and economic rights, to the extreme left side of the human rights spectrum, where the state has the sole responsibility to ensure social and economic jus- tice. However, over the past decade the second shift, which has been classified as the rights rev- olution, took place in the shift from the extreme left of the spectrum to a more centre-left approach with implications for the structure of the human rights framework as well as the state. The analysis reveals that social and economic rights have increased in importance since the early 1990s. This trend, as well as the inclusion of third-generation rights, blurred the previous artificial division between first-, second- and third-generation rights to form a broader concern with all rights. Coupled with the broader and extended redefinition of the concepts of devel- Fiscal Implications of Social and Economic Justice 177 30 A Hegarty & S Leonard Human Rights. An Agenda for the 21st Century (1999). 31 UNDP (note 27 above) at 8, 9. 1 7 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E opment, this led to convergence of the human rights agenda and the human development agen- da, in both concept and action, including the notion that they are mutually reinforcing. This convergence has extended the leftist state-centred model of accountability to a more centre-left approach where the state’s responsibility changed to include non-state actors. Another impor- tant trend is the increased importance of the state’s obligation beyond national borders. The changing framework of human rights discussed in this chapter is based upon the latest approaches as seen in the literature and theory of social and economic justice. However, it is important to note that, despite these continuous attempts to address these dilemmas, they have not so far been completely resolved. Of course, a theory of human rights can and should leave room for continuous discussion, disputations and arguments. The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism* C H A R L E S N G W E N A Professor, Department of Constitutional Law and Legal Philosophy, University of the Free State I Introduction This article seeks to explore the extent to which equity as a notion of fairness in access to health care has been integrated into the South African health-care system in recent history. The article discusses the main legislative and policy instruments that have shaped the South African health- care system. It begins with an analysis of the main pillars of the Public Health Act of 19191 and includes discussion on more recent developments, including the National Health Act.2 The arti- cle also comments on court cases that impact on equity in access to health care, including Minister of Health v Treatment Action Campaign.3 The point of departure is the ideal of creating a health-care system that strives for egalitarianism in respect of access to health-care services. It will be submitted that the Public Health Act of 1919 bequeathed to the country a system that was fragmented, dysfunctional, and above all, lacking in egalitarian values. Attempts to radically reform the Public Health Act through instruments such as the National Health Act of 19774 failed to change a system that was biased towards urban, curative and hospital-based care. Moreover, the intensification of racial segregation during apartheid and the privatisation of health-care services served to accentuate inequality in access to health care. It was not until the democratisation of South Africa that the health-care system began in earnest to trans- form towards universal access. At a policy level, the White Paper on Transformation of the Health System in South Africa (1997)5 stands as a beacon of change, with its emphasis on primary health care for all. At the level of fundamental law, the Constitution6 acknowledges access to health care. The National Health Act seeks to put on statutory footing the institutional framework for universal access to health care. * This article is based on a paper delivered at the Conference of the Southern African Society of Legal Historians at Stellenbosch University from 15–17 January 2003. The article first appeared in (2004) 37 De Jure 290-312 and is reprinted here (with minor changes) with the kind permission of C Ngwena and De Jure, the editor of De Jure and Lexis-Nexis Butterworths. 1 36 of 1919. 2 Act 61 of 2003. 3 2002 (5) SA 721 (CC). 4 63 of 1977. 5 GG 17910 of 1997-04-16. 6 Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) supplanting the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution). 1 8 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E II Equity in Access to Health Care Margolis is correct to say that merely appealing to notions of justice or fairness has inherent limitations in that any theory of justice or fairness is, ultimately, a human construct.7 A theory of justice cannot, by itself, establish a conclusive case for a desired outcome, and so it is with the notion of equity. Equity is a notion of justice. Much like other notions of justice, such as equality, it does not admit a single meaning. Its ultimate complexion depends on the ideologi- cal leanings of the interpreter. Thus, any notion of justice is necessarily a value judgement. In the context of access to health care, equity means different things to different interpreters. The notion of a right of access to health care is a contested right, not least at the level of philo- sophical theory and political ideology. In South Africa and elsewhere, though a number of diverse contractarian theories have been invoked when addressing the issue of access to health care, two main standpoints are dis- cernible, namely libertarianism and egalitarianism. In one sense, there is unity between these two positions in that they both converge on the desirability of achieving justice, and each pur- ports to offer a coherent view of life. At the same time, the two positions are characterised by pivotal points of contrast and opposition, not only in respect of conceptions of justice, but also in the delineation of the parameters of state vis-à-vis private-sector provision of health care. To classical libertarians, equitable access to health care might mean no more than treating peo- ple equally by desisting from unfair discrimination on the conventional prohibited grounds such as race, gender or sexual orientation.8 It usually means minimal state interference in the delivery of health care and the removal of state impediments such as the deregulation of the state health-care system in order to allow access to private health care.9 In this classic libertarian sense, equity is not synonymous with granting access to health care on the basis of need, or imposing an obligation on the state to take primary responsibility for the provision of health-care services to everyone. As Rhodes points out, the assumptions in classical liberal theory are that individuals are nor- mally responsible for their health and that they ought to be able to make their own health trans- actions in a free market.10 Those that are more affluent are able to purchase greater privileges because they deserve them, so it is argued. However, even the most ardent advocates of free markets do not dispute that the state has not only a role, but also a duty to discharge in respect of provision of health care. It is conceded, for example, that the state has an obligation to pre- vent and combat epidemics.11 The modern industrial state has, itself, contributed to many con- ditions that impact adversely on health such as environmental degradation and soaring crime. It has never been seriously argued by libertarians that the state should divest itself of all respon- sibility in these areas. What classical libertarians object to however, is a collectivist approach to equality where all groups are entitled to expect, as of right, a minimum standard of socio-eco- nomic goods, including health care.12 To egalitarians, however, equity is a more exacting concept.13 Much of the egalitarian con- 7 J Margolis ‘The Rights of Man’ (1978) 4 Social Theory and Practice 423. 8 D Feldman Civil Liberties and Human Rights in England and Wales (1993) at 901–902; HT Engelhardt ‘Rights to Health Care: A Critical Appraisal’ (1979) 4 Journal of Medicine and Philosophy 113. 9 Feldman (note 8 above); Engelhardt (note 8 above). 10 RP Rhodes Health Care Politics, Policy and Distributive Justice (1992) 19. 11 Rhodes (note 10 above) at 20. 12 Engelhardt (note 8 above). 13 RM Green ‘Health Care and Justice in Contract Perspective’ in RM Veatch & R Branson (eds) Ethics and Health Policy (1976) at 111–126. ception of access to health care was drawn substantially from Rawls’s theory of justice.14 According to Rawls, an individual in the original position’ makes his or her decisions behind a ‘veil of ignorance’. Acting out of rationality rather than altruism, the individual will try to max- imise his or her life chances by choosing universal political liberties so as not to risk the possi- bility of ills such as oppression, grinding poverty and so on. Such an individual will try to pro- tect equality of opportunity and, thus, secure for himself or herself minimum primary goods. While Rawls did not specifically list the provision and organisation of health care among the primary goods that an individual in the original position would require in order to enjoy equal- ity of opportunity, proponents of his theory of justice have done so. Perhaps the most persua- sive exponent in this connection has been Daniels.15 Daniels’s contribution to an egalitarian conception of access to health care has been to extend Rawls’s theory of justice to health care.16 Daniels has adapted Rawls’s principle of equality of opportunity into a principle of ‘normal opportunity range’. Daniels’s central premise is that if an acceptable theory of justice includes a principle for fair opportunity, then health care institutions and, perforce, health care policy and practice, should be among the goods governed by such a principle.17 According to Daniels, for any given society, there is a ‘normal opportunity range’ which com- prises of the ‘array of life plans reasonable to pursue within given conditions obtaining in socie- ty’.18 The resources of a society must be organised in such a way as to allow everyone to attain a normal opportunity range. Disease, most certainly, impairs in a fundamental manner the opportu- nity of an individual relative to the the normal opportunity range in a society governed by the prin- ciple of fair equality of opportunity.19 Access to health care, thus, becomes an essential prerequi- site, or a primary good in terms of indispensability to the attainment of the normal opportunity range for a given society. In practical terms, the right to exercise a normal opportunity range trans- lates into a right to a minimum, decent level of health care. There should be no obstacles – finan- cial, racial, sexual, geographical, and so on – to access to care as long as health needs are present. Of course, Daniels has not been without critics. Buchanan, for example, says that one of the more significant difficulties with Daniels’s ‘normal opportunity range’ and array of life-plans reasonable to pursue’ is that they are open to different interpretations.20 Buchanan contends that it is not clear for whom a life plan must be reasonable. If subjective view is taken, given different abilities and skills in any given society, some individuals might end up with claims that are so strong as to be unsustainable to the extent that resources are finite. Equally, Buchanan says that if an objective view is taken, what is reasonable for everyone might be too modest as to be insufficient to provide a basic for a substantive universal right to health care. In response to his critics, Daniels concedes that whilst the notion of normal opportunity range is not unas- sailable, it is, nonetheless, workable.21 According to Daniels, each society can construct for Historical Development of the SA Health-Care System 181 14 J Rawls A Theory of Justice (1972). 15 N Daniels ‘Health Care Needs and Distributive Justice’ (1981) 10 Philosophy and Public Affairs 146-179. 16 Daniels (note 15 above) at 163-168. 17 Daniels (note 15 above) 160-161. 18 Daniels (note 15 above) 158. 19 Daniels (note 15 above) 159. 20 A Buchanan ‘The Right to a Decent Minimum of Health Care’ (1984) 13(1) Philosophy and Public Affairs 55-78. See also L Stern ‘Opportunity and Health Care: Criticims and Suggestions’ (1983) 8(4) Journal of Medicine and Philosophy 339-361; J Moskop ‘Rawslian Justice and a Human Rights to Health Care’ (1983) 8(4) Journal of Medicine and Philosophy 329-338. 21 N Daniels ‘A Reply to Stern Critics and a Remark on Health Care Rights’ (1983) 8 Journal of Medicine and Philosophy 363-371. 1 8 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E itself its objective normal opportunity range. The range will be influenced by the key features of that society such as its stage of socio-economic development, material wealth, technological development and important cultural facts.22 Notwithstanding the criticisms of Daniels’ normal opportunity range and any of its inherent shortcomings, it is, nonetheless, a theoretical approach that has resonance with the egalitarian underpinnings of rights concerning health under international human rights law. As will become apparent in the ensuing discussion, the consequent duty upon the state to provide a decent minimum level of health care under human rights law is society-relative rather than abstract. It is not conceived in a vacuum. Rather, it allows for the decent minimum to be pegged flexibly so that as the particular society becomes more affluent, the minimum floor is com- mensurately adjusted upwards. Individuals will be free to purchase health care. The state is not put under a duty to provide everyone with the best available health care. Instead, the duty upon the state is limited to what is affordable for that society. An egalitarian conception of access to health care goes beyond the Aristotelian minimal princi- ple of justice in that it means much more than merely desisting from unfair discrimination or allow- ing for choice in health care. It means, at the very least, developing a health-care system that is responsive to need rather than the ability to pay.23 It also means maximal rather than minimal state interference in the provision of health care, with the state assuming primary responsibility for the provision of health care.24 Access to health care is conceived as a communal or social good that should be determined by need rather than life’s arbitrary lottery of birth, natural endowment, socio- economic status or historical circumstances. Health care should be distributed not merely on the basis of what is wanted or desired, but according to the basic needs for a worthwhile human life.25 It is to this egalitarian notion of equity that this article subscribes. It must be emphasised at the outset that equity does not imply the elimination of all differ- ences in health or the guaranteeing of equal health outcomes. Indeed, this would be an impos- sible goal to achieve since health-care services are but one of several health determinants. Genetic factors, income, housing, nutrition, water, sanitation, education and the general envi- ronment arguably impact to a greater extent on health outcomes than the mere provision of health-care services.26 Rather, the aim behind equity is to ensure that everyone has a fair oppor- tunity to access one of the determinants of health as part of the enjoyment of equality, freedom and human dignity in a democratic and caring society. Without access to health care one can- not effectively make autonomous choices, including realising one’s potential in a free society.27 For the greater part of the 20th century, it has been primarily moral philosophers, sociolo- gists, and health care providers and professionals that have imprinted egalitarian notions of equity into the provision of health care.28 Lately, however, human rights experts and activists have begun to champion egalitarian notions of health care.29 A human rights approach to health care has developed, not least on account of the emergence of socio-economic rights as tangible rights that are different in kind but have the same status as conventional civil or polit- 22 Daniels (note 15 above) 158. 23 HCJ Van Rensburg Health Care in South Africa: Structure and Dynamics (1992) at 364–370. 24 Van Rensburg (note 23 above). 25 W Landman ‘Appropriate Health Care as a Human Right’ in A Van Niekerk (ed) Health Care as Human Right (1993) at 36–71. 26 P Townsend et al The Black Report and the Health Divide (1990) at 104–106 and 286–305. 27 Landman (note 25 above) at 37–40. 28 Van Rensburg (note 23 above) at 352–403. 29 BCA Toebes The Right to Health as a Human Right in International Law (1999) at 3–36. ical rights. The right to health now enjoys the status of an international human right. The most important international instrument in terms of acknowledging, as well as expounding, the right to health is article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).30 Article 12 doubtlessly subscribes to equity in an egalitarian sense.31 Under article 12, state parties acknowledge the right of everyone to enjoy the highest attainable standard of physical and mental health. In General Comment 14 the Committee on Economic, Social and Cultural Rights (Committee on ESCR), the organ responsible for monitoring state com- pliance with socio-economic rights, has put a gloss on the meaning and content of article 12.32 The Committee on ESCR concedes that there are limitations insofar as realising the right to health is concerned. The right to health cannot be equated with a right to be healthy.33 Indeed, the state can- not guarantee health. The right to health does not imply guaranteeing all the services that are avail- able. The notion of the highest attainable standard of health must necessarily take into account the individual’s biological and socio-economic preconditions and the resources of the state.34 Not- withstanding these limitations, the provision of health-care facilities, goods and services are an important determinant of health. Health care must, thus, be dispensed on an equitable basis. In this regard, the Committee on ESCR posits four requirements that must be met.35 Firstly, health care must be available.36 Public health and health-care facilities, goods and services must be available to all in sufficient quantity, including the underlying determinants of health such as safe and potable drinking water and adequate sanitation facilities. Secondly, the facilities, goods and services must be accessible.37 It is this dimension, more than any other, that underscores the notion of equity in the provision of health care. According to General Com- ment 14, accessibility has four overlapping dimensions, namely non-discrimination, physical accessibility, economic accessibility and information accessibility.38 Non-discrimination means providing health care without discrimination on any of the pro- hibited grounds. Physical accessibility means that the facilities, goods and services must be with- in safe physical reach of everyone, especially vulnerable groups. Economic accessibility means health care should be affordable for all. The General Comment explicitly says that payment for health-care services must be based on the principle of equity to ensure that health-care services are affordable for all, including socially disadvantaged groups.39 Furthermore, equity demands that poorer households should not be disproportionately burdened with health-care expenses as compared to richer households.40 Information accessibility means recognising and protect- Historical Development of the SA Health-Care System 183 30 Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 1966-12-16. The right to health is also found in other international instruments. Examples in this regard are: article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (1979); article 24 of the Convention of the Rights of the Child (2002); and article 16 of the African Charter of Human and People’s Rights (1981). 31 A Chapman ‘Core Obligations Related to the Right to Health and their Relevance for South Africa’ (2002) in D Brand & S Russell (eds) Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (2002) at 35–60; Toebes (note 29 above) at 243–289. 32 Committee on Economic, Social and Cultural Rights General Comment 14 UN ESCOR (2000) Doc no E/C 12/2000/4. 33 Par 8. 34 Par 9. 35 Par 12. 36 Par 12(a). 37 Par 12(b). 38 Ibid. 39 Ibid. 40 Ibid. 1 8 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E ing the right to seek, receive and impart information concerning health issues. A third requirement of an equitable health-care system under General Comment 14 is accept- ability.41 Provided health care should be ethically and culturally appropriate. It must be respect- ful of the culture of individuals, minorities, peoples and communities. The fourth requirement is quality.42 Health care must be scientifically and medically appropriate and of good quality. General Comment 14 is not only instructive because of its convergence with philosophical and sociological notions of egalitarianism in health-care provision,43 but also because of its apt- ness in terms of the notion of substantive equality under the South African Constitution. The Constitutional Court has ascribed to section 9 – the equality clause – an expansive and sub- stantive concept of equality that goes beyond the mere achievement of formal equality.44 In the context of access to health care, substantive equality means providing access to health care tak- ing social and historical circumstances into account. The lasting nature of structural inequality that apartheid, especially, created among different population groups in terms of differential and inequitable access to the determinants of health such as education, housing, employment and health care has also to be dealt with and redressed through restitution and other compen- satory means.45 As will be elaborated upon in a subsequent section, the commitment to sub- stantive equality in the sphere of health-care provision is based beyond a doubt on section 27 of the Constitution. It provides: (1) Everyone has the right to have access to – (a) health care services including reproductive health care; (b) sufficient food and water; and (c) social security, including, if unable to support themselves and their dependents, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its avail- able resources, to achieve a progressive realization of each of these rights. (3) No one may be refused emergency medical treatment.46 How has the modern South African health-care system fared in terms of guaranteeing equitable access? To borrow from the language of the Committee on ESCR’s interpretation of article 12 of the ICESCR, has South African health care been available, accessible, acceptable and of good quality? 41 Par 12(c). 42 Par 12(d). 43 According to Van Rensburg (note 23 above) at 364–365, writing from a sociological perspective, a social- ly accountable heath-care system should meet the following demands: availability (geographically, strategi- cally and logistically); appropriateness and relevance; acceptability (personally and socio-culturally); adapt- ability and flexibility; accessibility (meaning the annulment of geographical, financial, racial, political and other barriers) and affordability. 44 See eg City Council of Pretoria v Walker 1998 (2) SA 363 (CC) par 62; National Coalition for Gay & Lesbian Equality v Minister of Justice 2000 (2) SA 1 (CC) par 62; J De Waal, I Currie & G Erasmus The Bill of Rights Handbook (2002) at 200–201; C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: The Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248. 45 C Ngwena ‘Substantive Equality in South African Health Care: The Limits of the Law’ (2000) 4 Medical Law International 111 at 111 and 115. 46 Emphasis added. III The Genesis of the Modern Health-Care System: The Public Health Act of 1919 The Public Health Act of 1919 marked the beginning of a modern health-care system in South Africa.47 It was the first comprehensive legislative measure on health services for the Union of South Africa. The Act was intended to supplant colonial legislation. The main objective was to create a central or national authority for the provision and regulation of health-care services. The South Africa Act of 1909, which created the Union of South Africa and unified the four colonies as a single political entity, did not unify colonial health legislation and policy.48 Instead, it mere- ly effected a transfer of colonial powers and duties to provincial authorities. As a result, the pro- vision of health care remained fragmented, with no central authority to formulate or co-ordinate policy. Until 1919, the department of internal affairs had the responsibility of controlling the dis- trict surgeon system and institutions for the mentally ill and those afflicted with leprosy, and was therefore the only body with pretentions of being a central health authority.49 It is significant to note that prior to the Act, the health of the population and the availabili- ty of health care were not major social concerns or, for that matter, a primary responsibility of government. Individuals, with the assistance of their families, had to provide for their own health-care services.50 The public health facilities essentially catered only for serious illnesses or infectious diseases of an epidemic nature.51 There was no real organisational structure for ren- dering health care. The Act was the first legislation to define national responsibilities for pub- lic health. The impetus for change came with the influenza epidemic of 1918. The epidemic had high morbidity and mortality rates, killing an estimated 142 000 people.52 The epidemic unmasked the deficiencies of the prevailing health-care systems and underscored the need for the state to assume primary responsibility for health care and to reorganise health-care servic- es. The Public Health Act of 1919 was the response. In essence, the 1919 Act created a tripartite system. The first tier was a national department of public health responsible for the control of the following: contagious diseases and advance- ment of environmental health; district surgeon services; and institutions for the mentally ill and those afflicted with leprosy and tuberculosis. The second tier comprised provincial administra- tions. Provincial administrations were charged with establishing, maintaining and managing hospitals and other curative services. Local authorities were the third tier. They were conceived as agents of the department of public health and were responsible for controlling contagious diseases and environmental health. The 1919 Act had minimal success.53 According to Van Rensburg et al, the 1919 Act drew the lasting contours of a highly fragmented system of health provision that became not only the main characteristic, but also the fundamental problem, in the organisation and dispensation of South African health care.54 The 1919 Act chiefly failed because of the fragmented nature of Historical Development of the SA Health-Care System 185 47 Note 1 above. 48 Van Rensburg (note 23 above) at 59; see also C De Beer ‘A Forward View of the Health Services in South Africa’ (1976) 50 South African Medical Journal at 431. 49 Ibid. 50 JJN Cloete Administration of Health Services (1981) at 2–3; BE Leech ‘The Right of the HIV-Positive Patient to Medical Care: An Analysis of Costs of Providing Medical Treatment’ (1993) 9 SAJHR 39 at 43. 51 Ibid. 52 Van Rensburg (note 23 above) at 59. 53 Van Rensburg (note 23 above) at 60. 54 Ibid. 1 8 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E the tripartite system. There was little co-ordination between the department of public health and local authorities. Each tier tended to function at the exclusion of the other, at the expense of providing a broader spectrum of co-ordinated services. There was polarisation between cur- ative and preventative services. Provincial authorities unduly preoccupied themselves with the provision of curative hospital-based care. Community health or primary health was virtually neglected. In part, the 1919 Act failed because it had not been conceived to render universal comprehensive care. It could not stand up to the demands of the South African society in the 1930s and 1940s especially. The Great Depression, the poverty among Blacks as well as Whites, large scale industrialisation, rapid urbanisation, expansion of the black labour class, desperate housing conditions, unhygienic living conditions and widespread malnutrition expressed them- selves partly in escalating conditions of poor health.55 Tubercular epidemics, nutritional defi- ciency diseases, venereal disease, high levels of morbidity and high infant and maternal mor- tality among all sectors of the population indicated the Act’s deficiencies. Indeed, it was these shortcomings that spurred government into appointing commissions of inquiry to investigate and ameliorate harsh social conditions. In the health sphere, the most significant commission of inquiry was the National Health Services Commission, the Gluckman Commission, that was appointed in 1942.56 IV Reforms: The Gluckman Commission The Gluckman Commission was set up to inquire into both the provision of an organised national service, and the necessary administrative, legislative and financial measures for such a service. The Commission was admirably loyal to its brief. In 1944 it reported its findings and recommended the reorganisation of the health service in the light of deteriorating health indi- cators and social conditions. The Commission sought to reorganise health services and ‘bring these services within reach of all sections of the population, according to need, and without regard to race, colour, means or station in life’.57 Though the Gluckman Commission eschewed the language of entitlement and rights, its egalitarian thrust is unmistakable. This is all the more remarkable given the Commission was operating in a society that was highly stratified, not least in terms of race, and that the language of health as a human right had yet to take root even in Western liberal democracies, let alone in South Africa. At an international level, it was not until 55 Van Rensburg (note 23 above) at 60; R Packard White Plague, Black Labor: Tuberculosis and the Political Economy of Health and Disease in South Africa (1989) at 126–193; A Jeeves ‘Public Health and Epidemiology in the Era of South Africa’s VD Pandemic of the 1930s and 1940s’ paper read at AIDS in Context International Conference held at the University of the Witwatersrand from 4–7 April 2001 (copy on file with author). 56 D Gluckman Report of the National Health Services Commission (1944). Prior to the Gluckman Com- mission the government had from time to time appointed a committee to inquire into various matters per- taining to the provision of health-care services. The Committee of Inquiry regarding Public Hospitals and Kindred Institutions of 1925 looked into the deterioration in the health of the black population in rural and urban areas. The Committee of Inquiry on Medical Training for Natives of 1928 looked into the state sub- sidy for and training of black medical personnel and the establishment of health units in rural areas as a response to the deteriorating health of the black population. The Committee of National Health Insurance of 1936 inquired into the feasibility of introducing a national health insurance scheme. However, the find- ings and recommendations of these committees were never acted on by government: Van Rensburg (note 23 above) at 61. 57 Gluckman Commission (note 56 above) at 8. 1946 that the notion of access to health as a universal right was first articulated, when the World Health Organisation in the preamble to its constitution proclaimed that the ‘enjoyment of the highest attainable standard of health is one of the fundamental rights of which every human being, without distinction of race, religion, political belief, economic or social condi- tions’, is entitled.58 The Commission found a health system that was fragmented and uncoordinated. The system unduly emphasised institutional care and ignored preventive and community-based care. It suf- fered from deprivation, especially for Blacks, with the deprivation more acute in rural reserves. The private sector was a distorting element. Not only was private health care unaffordable for the majority of people, it was also geographically inaccessible as private practitioners predom- inantly positioned themselves in cities and major towns. The recommendations of the Commission were, in essence, a blueprint for an egalitarian health-care system. In the main, the Commission recommended the establishment of a uni- fied single health authority, with the state assuming primary responsibility for the provision of health care. Significantly, services would be free and financed out of general taxation. Services were to be decentralised. Community health services would be established to bring health-care services close to people and to reduce dependence on curative care. Even more radically, the Commission recommended the phasing out altogether of private practice on account of its distorting effect. The Commission was not oblivious to the fact that health is not an outcome of the mere provision of health-care services alone and that other socio-eco- nomic factors had an even greater impact on health. As part of augmenting the provision of health-care services, the Commission called for vast improvements in nutrition, housing and health education. According to the Commission, health-care services alone could not make up for the deficiencies of the socio-economic system.59 In short, the Commission called for fundamental reform. Regrettably, however, the substance of the Commission’s recommendations was never imple- mented by the incumbent government, except for a limited programme of establishing commu- nity health centres.60 A number of factors conspired to ensure the demise of the Commission’s recommendations. Initially the recommendations fell victim to apathy and procrastination on the part of the Smuts government.61 The Smuts government was unwilling to encroach upon provincial powers as part of the reorganisation of services. Provinces in turn resisted change and were unwilling to relinquish their jurisdiction over curative institutions.62 The medical pro- fession also resisted change as it feared losing professional autonomy and the profits of private practice.63 However, the factor that dealt a mortal blow to the recommendations was the com- ing to power of the National Party in 1948. The recommendations were resolutely cast aside in the intensification of racial segregation under apartheid. De Beer aptly summed up the fate of the Gluckman Commission when he said: Historical Development of the SA Health-Care System 187 58 The Constitution of the World Health Organisation was opened for signature on 1946-07-22 and entered into force on 1948-04-07; Toebes (note 29 above) 31. 59 Gluckman Commission (note 56 above) at 27. 60 An attempt was made to implement the recommendations of the Gluckman Commission through the National Health Act of 1946. The most tangible outcome of this Act was the establishment of 50 commu- nity health centres: Van Rensburg (note 23 above) at 63. 61 Ibid. 62 Ibid. 63 Ibid. 1 8 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E The tragedy is not that the proposals of the Gluckman Commission were not imple- mented. The tragedy is that they could not possibly have been implemented. There is simply no way that a society built on division, oppression, and exploitation could accommodate a health service premised on unity, equality, and the elevation of the needs of all above the needs of the privileged elite.64 Thus, nothing short of a fundamental radical transformation of the prevailing political econo- my was needed if the recommendations of the Gluckman Commission were to be adopted and implemented by the government of the day. V Apartheid and South African Health Care The Medical Research Council described the South African health-care system during apartheid as a ‘bureaucratic entanglement of racially and ethnically fragmented services; wasteful and neglectful of the health of more than two thirds of the population’.65 During apartheid, income, geographical location and, most importantly, race became the arch determinants of the quanti- ty and quality of health care received by the populace.66 State-ordained racially-based inequal- ity in access to health care became the defining characteristic of the South African health-care system. It bears mentioning, however, that racial segregation in the organisation of health services has a long history and did not commence in 1948 with official apartheid. Since the colonisa- tion of South Africa, health services evolved along the lines of racial segregation with a sys- tematic bias towards Whites.67 What was done during apartheid, however, was to take the seg- regation in the form of separate and unequal access to services to extreme levels. According to Van Rensburg and Benatar, apartheid has been the most important historical force in the moulding of both the South African health-care system and the health of the people of South Africa in modern times.68 During apartheid, the provision of health facilities, the allocation of public funds, and the deployment of health-care personnel were stratified according to race. As in other socio-eco- nomic spheres that were commanded by the state, the health-care system became a tool for shoring up white supremacy.69 Whites were the privileged class and Blacks the worst provided for in terms of access to health-care facilities. Coloureds and Indians occupied an intermediate position. Per capita expenditure on health during apartheid shows that Whites received four times as much as Africans from the public health sector budget.70 64 C de Beer ‘Explaining the Present: Why Health Services do not meet the Health Needs of the Population’ in A Zwi & WB Saunders (eds) Towards Health Care for All (1985) at 59. 65 Medical Research Council Changing Health in South Africa: Towards New Perspectives in Research (1991) at 7. 66 Van Rensburg (note 23 above) at 56–58. 67 HCJ van Rensburg & SR Benatar ‘The Legacy of Apartheid in Health and Health Care’ (1993) 24 SA Journal of Sociology 99 at 99. 68 Ibid at 99. 69 M Price ‘Health Care as an Instrument of Apartheid Policy in South Africa’ (1986) 1 Health Policy and Planning 158 at 158. 70 DE McIntyre & RE Dorrington ‘Trends in the Distribution of South African Health Care Expenditure’ (1990) 78 SAMJ 125 at 125; HCJ van Rensburg ‘South African Health Care in Change’ (1991) 22 SA Journal of Sociology 1 at 5. Apart from prescribing inequitable access to health-care services, the effects of apartheid were also manifest in racial discrepancies in health status. The burden of morbidity and mor- tality was disproportionately carried by Blacks and Coloureds.71 However, it is important not to ascribe differential health status to segregated health-care services alone. As alluded to ear- lier, health status is not merely an outcome of health care, but an outcome of a multiplicity of socio-economic factors. Racial discrepancies in health status are attributable to differential access not only to health-care services, but also to other goods reliant on socio-economic sta- tion such as nutrition, employment, housing and sanitation, which were similarly shaped by apartheid. The racial fragmentation of services was accentuated by the homelands policy, which creat- ed bantustans, and by the tricameral Constitution of 1983, which established ethnically based departments of health.72 The homelands policy established ten separate health authorities for the bantustans. The tricameral Constitution added three “own affairs” health authorities for Coloureds, Indians and Whites. The racial segregation of services also accentuated the urban- rural chasm in the provision of services. Health-care services were prioritised for Whites who were concentrated in the urban areas. For Africans in the rural areas, access to health-care serv- ices was virtually unattainable.73 Attempts to reform the health-care system were submerged by the overarching apartheid superstructure, which consciously ensured that the primary beneficiaries of any reform would be first and foremost Whites, with Indians and Coloureds occupying somewhat intermediate positions. The most significant attempt to reform the system bequeathed by the 1919 Act was the passing of the Health Act 63 of 1977. The Act was intended to repeal the 1919 Act and provide for the rendition of health services to the inhabitants of South Africa. The Act created new structures, in particular the National Health Policy Council, which had the responsibility of formulating national policy on health and co-ordinating services. The Act’s professed inten- tion was to provide, through the department of health and welfare, ‘comprehensive health serv- ices for the population of the Republic of South Africa’.74 However, it failed dismally in this regard, not least because it preoccupied itself with the provision of health-care services to White South Africa only. It was not only race which compromised the 1977 Act, but also deregulation of the health sector in the 1970s.75 Privatisation gave the private health sector a lasting and dominant posi- tion in the provision of health care in South Africa. Private-sector health care, with its exorbi- tant fees, served only twenty percent of the population and thus accentuated inequalities in access to health care.76 Historical Development of the SA Health-Care System 189 71 From 1980 to 1985 infant mortality was 13% for Whites, 18.9% for Indians, 56% for Coloureds and 82% for Africans. Life expectancy was 66.8 for Whites, 63.1 for Indians, 55.4 for Coloureds and 55.1 for Africans: Van Rensburg & Benatar (note 67 above) at 106. 72 M Price Health Policy and Planning (1986 ) at 148. 73 Van Rensburg & Benatar (note 67 above) at 104. 74 Sec 14(a) of the Act. 75 Van Rensburg (note 23 above) at 79–83; HCJ an Rensburg & A Fourie ‘Privatisation of South African Health Care: In Whose Interest?’ (1988) 11 Curationis 1 at 1. 76 Ibid. 1 9 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E VI Reforms in the Democratic Era (A) POLICY AND LEGISLATION Since the advent of the new constitutional dispensation, health-care reforms have been truly anchored in equity, not least because the achievement of substantive equality is a constitution- al imperative. Moreover, the Constitution recognises the right of every person to have access to health care.77 The state has an obligation to deploy resources at its disposal in order to achieve on a progressive basis the realisation of the right to have access to health care.78 To use the lan- guage of the Committee on ESCR, once again, the goal now is to achieve a health-care system that is available, accessible, acceptable and of a good quality. As stated in the introduction, the White Paper for Transformation of the Health System in South Africa (White Paper) has provided the arch policy blueprint for egalitarian health care at a policy level.79 It was explicitly aimed at ‘promoting equity by developing a single, unified health system’.80 It espoused the goal of making primary health care available as the health-care system’s point of entry for all people, irrespective of race, means and geographical locality.81 It sought to bridge the urban-rural divide and the disparities in economic means by, inter alia, ‘focusing on the rural, peri-urban and urban poor and the aged, with an emphasis on vulnerable groups’.82 The philosophy underpinning the White Paper is not only a product of constitutional imper- atives, but also a reflection of acceptance of international consensus on the equitable provision of health-care services. The concept of primary health care, which is all pervasive in the White Paper, is largely a progeny of the international authority on health, the World Health Organisation (WHO).83 The WHO developed the concept in the 1970s with the aim of ensur- ing that everyone gains access to health care necessary for leading a ‘socially and economically productive life’.84 The concept was given a boost in 1978 by the international conference of pri- mary health care that was held in Alma Ata.85 In the Declaration of Alma Ata, which was adopted at this conference, primary health care is defined in the following terms: Primary health care is essential care based on practical, scientifically sound and socially acceptable methods and technology made universally accessible to individu- als and families in the community though their full participation and at a cost that the community can afford to maintain at every stage of their development in the spir- it of self-reliance and self-determination. It forms an integral part of both the coun- try’s health system of which it is the central function and main focus, and of the over- all social economic development of the community. It is the first level of contact of 77 Sec 27 of the Constitution. 78 Sec 27(2) of the Constitution. 79 Par I above. 80 White Paper at 10. 81 White Paper at 10. 82 White Paper at 14. 83 World Health Organisation Global Strategy for Health for All by the Year 2000 (1981). Note, however, that according to Toebes (note 29 above) 34 the idea of primary health care was not entirely borne out of WHO. As far back as in 1931 and in 1937, the Health Organisation of the League of Nations had, at two health conferences on rural health, promoted the idea of primary health services for all. 84 Ibid. 85 Toebes (note 29 above) at 35. individuals, the family and the community with the health system bringing health as close as possible to where people live and work, and constitutes the first element of a continuing health care process.86 Thus, the cardinal idea behind the principle of primary health care is that there are health-care services that are essential or basic to the socio-economic survival and development of individuals and communities. Consequently, such health care ought to be within the reach of everyone and means and distance should not be obstacles. It is for government to ensure the accessibility of health care. Moreover, there must be democratic involvement of the community in the planning and implementation of health care so as to ensure acceptability of the services that are rendered. As part of the promotion of equity, and implementation of the primary health-care system, a redistribution of public health resources is underway.87 The historical bias towards urban-based curative institutions is being reversed in favour of equitable geographical allocations of health resources and facilities. The move is geared towards providing health facilities in areas that have been historically deprived. In this regard, a massive clinic-building system is underway through- out the country to implement primary health care.88 A complementary development has been the implementation of the District Health System (DHS) as a way of not only decentralising, but also democratising health-care services.89 The DHS is challenging the legacy of the Public Health Act of 1919, which bequeathed a fragmented and dysfunctional health-care system. There have also been numerous legislative interventions with a view to facilitating the reali- sation of equitable access to health care.90 The egalitarian organisation of the South African health system has, at long last, been placed on a statutory footing with the passing in 2004 of the National Health Act.91 The Act is built on an edifice of the achievement of substantive equality in the provision of health care. In its preamble, the Act recognises the socio-economic injustices and the inequities of health services in the past. It seeks to comply with the state’s con- stitutional obligation to take reasonable, legislative and other measures within its means to achieve the progressive realisation of the right of everyone to have access to health-care servic- es under section 27 of the Constitution. The Act subscribes to co-operative governance and decentralised management of health services in which national government, provinces, munic- ipalities and health districts collectively address questions of health policy and delivery of health care services.92 As part of the democratisation of health services, the Act provides for the involvement of the community in the governance of health care services.93 Historical Development of the SA Health-Care System 191 86 At VI of the Declaration of Alma Ata. 87 HCJ Van Rensburg ‘Health and Health Care in South Africa in Transition: A Macro Perspective’ (1999) 31 Acta Academica 1 at 1; SR Benatar ‘Health Care Reform in the New South Africa’ (1997) 336 The New England Journal of Medicine 881 at 891. 88 Ibid. 89 Ibid. 90 Eg: In 1994 a presidential decree accorded pregnant mothers and children under 6 years entitlement to free health services; The Choice on Termination of Pregnancy Act 92 of 1996 radically reformed abortion law to, inter alia, provide abortion on request in the first 12 weeks of pregnancy; the Medical Schemes Act 131 of 1998 outlawing unfair discrimination in the provision of health cover under medical schemes. Some pieces of legislation have engendered strong criticism or opposition. An example is the attempt by govern- ment to permit compulsory licencing and parallel importation of drugs through the Medicines and Related Substances Act 90 of 1997, that was met with vociferous opposition not only from the South African phar- maceutical industry but also by foreign conglomerates and many industrialised countries. 91 Note 2 above. 92 Preamble to the Act. 93 Section 31 of the National Health Act. 1 9 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E (B) JUDICIAL DECISIONS In the democratic era, courts have, by virtue of constitutional imperatives, begun to accord judicial confirmation to the egalitarian ethos that underpins access to health care in the new South Africa. A particularly welcome development in this regard is the relatively recent deci- sion of the Constitutional Court in Minister of Health v Treatment Action Campaign, where government was ordered to provide antiretroviral therapy at public health facilities on a uni- versal basis for the prevention of mother-to-child transmission of HIV.94 In this case, govern- ment policy of restricting the provision of Nevirapine (administered for the purpose of pre- venting the mother-to-child transmission of HIV) to eighteen pilot sites in the country was chal- lenged on the ground, inter alia, that it was contrary to section 27 of the Constitution.95 Government had sought to justify its decision on the grounds that it had to monitor the possi- ble side effects of Nevirapine so as to ensure the safety of the drug and that it was necessary to study the socio-economic and public health implications of providing the drug before develop- ing a universal comprehensive package of care. The government’s arguments failed before the Constitutional Court. In Treatment Action Campaign, the court drew from principles for the adjudication of socio- economic rights that had been developed earlier in Government of the Republic of South Africa v Grootboom.96 In Grootboom, the court was concerned with whether a state housing policy and programme, inter alia, complied with the duties imposed upon the state by section 26 of the Constitution. Section 26 is analogous to section 27 in that both provisions guarantee access to a socio-economic good and require the state to take reasonable legislative and other meas- ures to achieve the progressive realisation of the right in question. Grootboom represents a holistic approach to the interpretation of socio-economic rights.97 Recourse to the jurispru- dence of the Committee on ESCR was crucial in dispelling the myth that socio-economic rights are intangible, unascertainable and unrealisable. Throughout the judgment, the court drew sus- tenance from the foundational values of the Constitution. Achieving substantive equality and protecting human dignity in the aftermath of a legacy of state-spawned gross inequality in access to housing were given due emphasis, as was the imperative to protect the most vulnera- ble and weakest in our society as part of the transformation of post-colonial and post-apartheid South Africa. In Grootboom, the court was of the view that although the respondent’s housing 92 Preamble to the Act. 93 Section 31 of the National Health Act. 94 2002 (5) SA 721 (CC). 95 Note that apart from sec 27 of the Constitution, there was also reliance on other provisions, especially at first instance, sec 7(2) which enjoins the state to respect, protect, promote and fulfil the rights in the Constitution; sec 10 which guarantees human dignity; sec 12(2)(a) which guarantees the right to bodily and psychological integrity including the right to make decisions about reproduction; sec 28(1)(c) which, inter alia, guarantees a child a right to basic health-care services; sec 195 which, inter alia, enjoins that public administration must be governed by the democratic values that are enshrined in the Constitution and that a high standard of professional ethics must be promoted and maintained, and sec 237 which provides that all constitutional obligations must be performed diligently without delay. 96 2001 (1) SA 46 (CC). 97 P de Vos ‘Grootboom, the Right of Access to Housing and Substantive Equality as Con- textual Fairness’ (2001) 13 SAJHR 258 at 258; S Liebenberg ‘The Right to Social Assistance: The Implications of Grootboom for Policy Reform in South Africa’ (2001) 13 SAJHR 232 at 232; J Sloth- Nielsen ‘The Right to Social Services, the Right to Social Security, and the Primary Prevention of Child Abuse in the Aftermath of Grootboom’ (2001) 13 SAJHR 210 at 224. programme was commendable in many respects, it did not pass constitutional muster because it did not accommodate the immediate needs of the poorest and, perforce, most vulnerable in our society.98 Thus Grootboom constitutes a triumph for the realisation of an egalitarian ethos. In Treatment Action Campaign, the court, taking its cue from Grootboom, demonstrated a bold willingness to impugn executive policy to the extent that the policy impacted on the respect, protection, promotion and fulfilment of fundamental rights in the Constitution. While the court conceded that the executive had constitutional pre-eminence in policy decision-making, the court did not at the same time interpret the doctrine of separation of powers as implying judicial abdi- cation on policy matters that impact on fundamental rights.99 Government had a positive duty to take reasonable legislative and other measures, with consideration of its available resources, to achieve the progressive realisation of the right of access to health-care services.100 The court was of the unanimous view that government policy was inconsistent with the faithful discharge of this duty. Government policy was inflexible.101 It denied 90 percent of mothers and their babies who relied on public health facilities the opportunity to access safe, life-saving therapy that was man- ifestly affordable to the state.102 The court was clearly aware that these mothers and consequently their children were indigent and unable to access private health-care facilities, where Nevirapine was available for a fee.103 In reaching this conclusion, the court also took cognisance of section 28 of the Constitution which guarantees children a package of rights, including a right to ‘basic health services’.104 According to the court, Nevirapine was ‘essential’ to the child.105 Without Nevirapine the life of the rights would be ‘most in peril’.106 Although Treatment Action Campaign was concerned only with the issue of access to anti- retroviral therapy for the prevention of mother-to-child transmission of HIV, it appears to have heralded positive changes in government policy towards the provision of antiretroviral therapy generally. For many years government policy has been to provide symptomatic treatment only for HIV/AIDS. Government had maintained that it could not afford the cost of antiretrovirals. However, in 2003, government announced that it was committed to the universal provision of antiretroviral therapy for people living with AIDS and set up a committee to plan and oversee the implementation of its commitment.107 South Africa has the highest number of people liv- ing with HIV/AIDS in a single country. It is estimated that 5.3 million people (approximately twelve and a half percent of the population) are living with AIDS.108 HIV/AIDS-related deaths account for 25 percent of all adult deaths.109 On account of costs, antiretroviral therapy has thus far been inaccessible to the majority of people living with HIV/AIDS, with a consequent toll on morbidity and mortality. There is little doubt that if the commitment to provide univer- Historical Development of the SA Health-Care System 193 98 Grootboom 2001 (1) SA 46 (CC) paras 44, 52, 56, 63, and 69. 99 Treatment Action Campaign 2002 (5) SA 721 (CC) paras 98–99. 100 Sec 27(2) of the Constitution. 101 Treatment Action Campaign 2002 (5) SA 721 (CC) par 80. 102 Par 98. 103 Par 79. 104 Sec 28(1)(c) of the Constitution. 105 Treatment Action Campaign 2002 (5) SA 721 (CC) par 78. 106 Par 78. 107 Department of Health Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa (2003). 108 Department of Health National HIV and Syphilis Sero-Prevalence Survey of Women Attending Ante-Natal Clinics in South Africa in 2001 (2003). 109 RE Dorrington et al The Impact of HIV/AIDS on Adult Mortality in South Africa (2001) at 6. 1 9 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E sal access to antiretroviral therapy is implemented, it will go a long way towards redressing the lottery of income in determining access to life-saving therapy. It is not, however, suggested that the change in policy on antiretroviral therapy should be ascribed to Treatment Action Campaign. A number of factors came into play, including a gov- ernment-commissioned report, indicating that it was feasible to provide antiretroviral therapy in the public sector;110 political pressure brought to bear on government by civil society;111 sig- nificant lowering of the price of antiretroviral therapy by pharmaceutical multinational firms;112 and international commitments to permit developing countries facing dire HIV/AIDS pandemics to avail themselves of strategies such as parallel importation and compulsory licens- ing under the Agreement on Trade Related Aspects of Intellectual Property Rights without fear of economic reprisals from Western countries.113 What Treatment Action Campaign managed to do, however, was to facilitate the sustenance and intensification of the public debate on equi- table access to antiretroviral therapy in the media and other fora. It is important to appreciate that Treatment Action Campaign is not the only case in which the courts have dealt with a fundamental right impacting on access to health-care services. There are two earlier cases, B v Minister of Correctional Services114 and Soobramoney v Minister of Health, KwaZulu-Natal,115 where courts adjudicated on access to health care. Neither case can be regarded as particularly instructive on the development of principles that relate to equitable access to health-care services. In B four prisoners who were HIV-positive had been refused access to antiretroviral therapy by the department of correctional services on the ground of cost. Antiretroviral therapy had been prescribed for two of the prisoners. They sought an order before the High Court to require provision of antiretroviral therapy. They based their case on section 35(2)(e) of the Constitution, which guarantees a person in state incarceration a right to ‘adequate medical treatment’. The court held that the department had a duty to provide the therapy to only the two prisoners to whom it had been prescribed. A number of criticisms can be levelled at the B case. Much of the case dealt with determin- ing whether anti-retroviral therapy was within the ambit of adequate medical treatment, given its costliness. However, the court did not turn to international human rights jurisprudence for interpretive guidance on this point, except to observe that the term ‘adequate’ was relative and that its meaning could only be determined according to a given context, taking into account available resources. Notwithstanding the relative exorbitant price of antiretroviral therapy at the time and its inaccessibility to the majority of South Africans living with HIV/AIDS, the court was satisfied that the treatment the prisoners were seeking was no more than ade- quate.116 The case seemed to turn on the narrow point that the department of correctional serv- ices had pleaded lack of resources, but had failed to submit convincing supporting evidence. 110 J Kindra ‘AIDS: Ministers Revolt’ Mail & Guardian 2003-08-15 to 2003-08-21 at 2. 111 C Keeton ‘Turning Point for AIDS Treatment’ Sunday Times 2003-08-10 at 17. 112 Globally, the annual cost of antiretroviral therapy has fallen from about $12 000 to $300pp. 113 On 2003-08-30, the WTO agreed to permit developing countries badly affected by HIV/AIDS, tuberculo- sis, and malaria to import cheap generic drugs: C Kapp ‘World Trade Organisation Reaches Agreement on Generic Medicines’ (2003) 362 Lancet 807 at 807; N Courage ‘WTO Agreement Improves Access to Life- Saving Drugs’ The Lawyers Weekly 2003-09-26 at http://www.bereskinparr.ca/publications/art_html/biotech- wto-html. 114 1997 (6) BCLR 789 (C). 115 1998 (1) SA 765 (CC). 116 B v Minister of Correctional Services 1997 (6) BCLR 789 (C) par 60. Even if it is accepted that the court was correct in regarding antiretroviral therapy as adequate medical treatment within the meaning of section 35(2)(e), the order to provide antiretroviral therapy to only two of the applicants is problematic. As the judge observed, the overcrowding in prisons exacerbates the vulnerability of prisoners living with HIV to opportunistic infections, including tuberculosis and pneumonia.117 Overcrowding contributes significantly to neglect of hygiene, care and supervision. Over and above the overcrowding, there is stress, violence and malnutrition to contend with.118 South African prisons are characteristically violent places. Rape is rampant.119 It has been suggested that incarceration reduces the life expectancy of a person living with HIV by 50 percent by accelerating the infectious stage of the disease to full- blown AIDS.120 In 1999 a study conducted by a judicial inspectorate found that 90 percent of deaths of people who are incarcerated are AIDS-related.121 Voluntary as well as coerced sex in prisons adds significantly to HIV prevalence among male prisoners. It is estimated that 65 per- cent of male prisoners engage in homosexual activity.122 Even though prisoners have a higher morbidity and mortality rate from HIV/AIDS than their counterparts in the community, the court in B did not consider whether antiretroviral therapy would also constitute adequate treatment for other prisoners for whom it had not been pre- scribed, but were nonetheless seeking it on the ground that it had a prophylactic effect in peo- ple living with HIV/AIDS. Brand J rejected the claim of the prisoners for whom the therapy had not been prescribed on the ground that granting the order would amount to instructing med- ical doctors to prescribe the therapy.123 The judge erroneously equated granting an order of constitutional entitlement to antiretroviral therapy with obliging doctors to prescribe those entitlements. As shown by Treatment Action Campaign, it would have been possible for the court to grant a wider order to the effect that where antiretroviral therapy is medically indi- cated for prisoners living with HIV/AIDS, there is a constitutional duty to provide it on the part of the state, but subject to available resources. That way, the decision of the court would have assisted other prisoners falling in the same class as the successful applicants. It would have pro- vided clearer guidance to those doctors who are consulted by prisoners living with HIV/AIDS. The Soobramoney case concerns a man who was seeking to compel the respondent to pro- vide him with renal dialysis. He suffered from chronic renal failure. He had been receiving dial- ysis through private care, but his funds had run out. He sought to have dialysis provided to him, at state expense, by a renal unit of a state hospital. Otherwise he would have died. His request was declined. The renal unit could only meet 30 percent of the demand for renal dialysis. It could only provide renal dialysis to patients who were candidates for renal transplantation. Thus, it could only provide dialysis to those patients who needed it in the short term and not as life-long therapy. The applicant was not a candidate for transplantation. He suffered from ischaemic heart disease and was a diabetic with peripheral vascular disease. In the previous year, he had suffered a stroke. Though the applicant canvassed several grounds in support of his application, in the main, Historical Development of the SA Health-Care System 195 117 Par 54. 118 KC Goyer ‘HIV/AIDS in South African Prisons’ http://www.iss.co.za/Pubs/Monographs/ No79/Chap1.html accessed on 2004-01-18. 119 Ibid. 120 Ibid. 121 Ibid. 122 Ibid. 123 B v Minister of Correctional Services 1997 (6) BCLR 789 (C) par 37. 1 9 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E he contended that the respondent’s decision had infringed his right to life in terms of section 11 of the Constitution and his right not to be refused emergency medical treatment in terms of sec- tion 27(3). The court was of the opinion that the right to life argument was inappropriate as the Constitution provided explicitly for rights concerning access to health-care services. In respect of section 27(3), the court held that although the section was capable of being more broadly interpreted to include ongoing treatment for chronic conditions, it had a narrower meaning. It was not intended for a condition such as chronic renal failure. Instead it was intend- ed for a sudden catastrophe or unexpected trauma. In any event, the court was also of the view that even if chronic renal failure constituted an emergency, the state was not violating its obli- gations when it declined to provide renal dialysis, as its resources were limited. Although the applicant had not raised the issue, the court also took the opportunity to con- sider the application of section 27(1) and (2) to the facts of the case. The court suggested that these sections were more appropriate to the facts of the case than sections 11 or 27(3) of the Constitution. It was held, unanimously, that on account of scarcity of resources, it could not be said that the state had failed to discharge its section 27(2) obligations.124 For a number of reasons Soobramoney did not contribute much to the understanding of socio-economic rights.125 The outcome of the case itself was correct, given the prevailing scarci- ty of resources to provide life-long renal dialysis at a time when the state health sector could meet only 30 percent of the demand for renal dialysis.126 Under the guidelines that had been worked out by the state renal unit, priority was given to patients who were candidates for renal transplant and, thus, did not require life-long dialysis. Despite reaching the correct decision, the court was unduly restrictive in its interpretation of section 27(3). It had been argued by the appellant that section 11 of the Constitution was rel- evant to the interpretation of section 27(3) to the extent that refusal to provide renal dialysis meant that the right to life would be nullified. In retort, the court took the view that the right to life argument was inappropriate as the Constitution had express provisions governing issues of access to health-care services. In adopting this approach, the court unduly minimised the rel- evance of section 11. Even conceding that chronic renal failure of the type that the appellant was afflicted with did not constitute a medical emergency as contemplated by section 27(3), the effect of the court’s interpretation was to cast the provisions of the Bill of Rights as individual elements that are not linked. The court thus adopted a legalistic interpretation of section 27(3) in contrast with its own professed generous, purposive approach.127 It was also a mistake for the court to interpret section 27(3) as a negative rather than a pos- itive right.128 The court held that section 27(3) created a negative right only: the right not to be turned away arbitrarily by an institution or facility that is able to provide emergency treat- ment.129 To the extent that the court’s approach can be construed as imposing no obligation upon the state to develop and make emergency services available, the import of the positive duties of health-care providers was undermined.130 Socio-economic rights draw sustenance 124 Chaskalson P delivered the leading judgment. 125 C Scott & P Alston ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 SAJHR 207 at 206; De Vos (note 97 above) at 258–259. 126 Soobramoney 1998 (1) SA 765 (CC) par 26. 127 S v Makwanyane 1995 (3) SA 391 (CC) par 9; De Waal, Currie & Erasmus (note 44 above) at 130–135. 128 Soobramoney 1998 (1) SA 765 (CC) par 20. 129 Ibid. 130 Scott & Alston (note 125 above) at 235–237. from the imposition of positive obligations. Scott and Alston have described the court’s approach as constituting ‘negative textual inferentialism’.131 Soobramoney also seems to paint a picture of undue judicial deference in decisions on the allocation of health-care resources and the protection of socio-economic rights in gener- al.132 The court seemed to take as its starting point that once it has been asserted by a provincial or national health-care provider that resources are unavailable, then that per se limits the realisation of a right of access to the service. The court did not inquire into whether the state and the province were in fact according due priority to the realisation of the right sought by making available resources that ought to be available and utilising such resources effectively. It seemed enough for the health-care provider to ‘toll the bell of tight resources’.133 Soobramoney, unlike Treatment Action Campaign, is of little use for understanding the constitutional right to equitable access to health-care services. The court did not consider how the right to health or the right of access to health care has been interpreted under internation- al human rights instruments. In particular, the court failed to make use of jurisprudence that had been developed by the Committee on ESCR. Failure to consider international law was a serious shortcoming on the part of the court, not least because the Constitution enjoins the courts to consider any relevant international law.134 VII Conclusion When viewed from an egalitarian perspective, the South African health-care system had for the greater part of the twentieth century conformed to the paradigm of a lottery where race, income and geographical location have been the main determinants of access. Post- apartheid reforms are, however, challenging this lottery, not least through major health-care reforms and the constitutional imperatives to achieve substantive equality, and perforce equitable access to health-care services. Section 27 of the Constitution is the clearest indi- cation of a commitment towards equity in access to health care. However, political reforms rarely come without contradictions and the same stands true for the reform of the South African health-care system. While the trajectory towards a health-care system that embraces egalitarian equity is clear, there are attendant problems and detracting factors. Providing universal care is cost- ly to a middle-income country that does not have a national health insurance system and has a high unemployment rate.135 South Africa still has poor indicators for health when compared with other middle-income countries.136 The health-care sector is competing with Historical Development of the SA Health-Care System 197 131 Scott & Alston (note 125 above) at 237. 132 D Mollendorf ‘Reasoning about Resources: Soobramoney and the Future of Economic Rights Claims’ (1998) 14 SAJHR 327 at 327. 133 R v Cambridge Health Authority, ex Pb (a minor) (QBD) 25 BMLR 5 17 per Laws J; Soobramoney 1998 (1) SA 765 (CC) par 52 per Sachs J (where drawing from Cambridge Health Authority he said that ‘[i]n a case as the present which engages our compassion to the full, I feel it necessary to underline the fact that Chaskalson P’s judgment, as I understand it, does not “merely toll the bell of lack of resources”’). 134 Sec 39 of the Constitution. 135 M Bachmann ‘Would Social Health Insurance Improve South African Health Care? What other Middle Income Countries Can Teach Us’ (1994) 24 Transformation 26 at 26. 136 Bachmann (note 135 above) at 27. 1 9 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E other sectors for scarce resources. Skilled health workers are emigrating in significant num- bers.137 The burden on the health-care system is increasing on account of rising levels of poverty and unemployment. Perhaps more than any other factor, the gigantic scale of the country’s HIV/AIDS epidemic has been a constraining factor in the realisation of universal access to health care. The divide between a first rate but expensive private health-care sec- tor and a second-class public health sector remains and will persist for the foreseeable future.138 Furthermore, the pace of transformation itself is not above criticism. Changes have at times been introduced well ahead of creating capacity in terms of human resources and other infrastructure.139 Despite these impediments, it is, nonetheless, incontestable that the building blocks for an equitable health-care system are being laid. At least in the medi- um to long term, there is no reason why South Africa cannot realise for all of its people the provision of a decent basic minimum package of care commensurate with resources. While this article has focused on equity in access to health from the angle of policy and prac- tice, it is important to bear in mind that in the case of developing countries the factors that impact on equity are governed not only by internal factors, but also external ones.140 The costs of life-saving or life-prolonging drugs that are manufactured by conglomerates that are based in developed countries are a major constraining factor. The global inequity in access to AIDS drugs is a clear illustration.141 Regardless of the extent of commitment to the provision of anti- retroviral drugs, if the price of drugs is exorbitant and patent protection rules are unduly restrictive and indifferent to public health catastrophes, equity cannot be obtained for the poor in developing countries. 137 ‘Young Doctors Plan to Bolt en Masse’ Sunday Times 2002-12-08. A survey carried out on new medical graduates has revealed that 43% intend to leave the country and that only 38% are committed to working in the public health sector. 138 Van Rensburg (note 87 above) at 1. 139 Ibid. 140 HCJ Van Rensburg & C Ngwena ‘Health and Health Care in South Africa against an African Background’ in WC Cockerham (ed) The Blackwell Companion to Medical Sociology (2001) at 365–391. 141 CA Reich ‘The Global Drug Gap’ (2000) 287 Science 1979 at 1979; D Resnik ‘Developing Drugs for the Developing World: An Economic, Legal, Moral and Political Dilemma’ (2001) 1 Developing World Bioethics 11 at 11. Pro-Poor Court, Anti-Poor Outcomes: Explaining The Performance of the South African Land Claims Court T H E U N I S R O U X * Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Honorary Reader in Law, University of the Witwatersrand I Introduction Why has a specialist court that was purposely established to adjudicate claims made under pro- poor legislation come to play a very minor role in the adjudication of those claims? How did it happen that a decision of that court rejecting a claim by an indigenous community should be overturned by an appellate court staffed by non-specialist judges? And why did the specialist court, in several decisions across different areas of law, interpret social rights so narrowly that they were rendered virtually meaningless? These are some of the questions that have driven the writing of this article. The court in ques- tion, the Land Claims Court of South Africa (‘the LCC’), was established in 1996 under a statute that was among the first wave of legislation enacted by the post-apartheid legislature. Indeed, the statute concerned, the Restitution of Land Rights Act,1 was so important to the new democratic government that special authorisation for it was built into the transitional constitution.2 Anyone reading the Restitution Act at the time of its promulgation would have had no doubt that the LCC had been established to oversee the reversal of eighty years of state-orchestrated land dispossession. And anyone observing the process of its establishment would have noted that the judges chosen to staff the Court all had strong human rights credentials. None of them had served as a judge under apartheid,3 and all had in their previous work as practising lawyers demonstrated their commit- ment to improving the lives of the poor and the landless. And yet, ten years later, the LCC plays no * I would like to thank the anonymous referees of this article for their helpful comments, and also the par- ticipants in the two conferences at which draft versions of this article were presented: the Centre for Applied Legal Studies conference on Human Rights, Democracy and Social Transformation: When do Rights Work? (November 2003), and the University of the Witwatersrand Law School conference celebrating Twenty Years of Human Rights Scholarship and Ten Years of Democracy (July 2004). This article first appeared in (2004) 20 SAJHR 511-543 and is reprinted here with the kind permission of T Roux, I Currie (editor of SAJHR) and Juta & Co. 1 Act 22 of 1994 (‘the Restitution Act’). 2 See sections 121-123 of the Constitution of the Republic of South Africa, Act 200 of 1993. 3 As noted below, the President of the court, Fikile Bam, had acted as an additional member of the Industrial Courts in the former Ciskei and Transkei ‘homelands’, after being deported from South Africa in 1980. 2 0 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E meaningful role in overseeing the land restitution process, and has concurrent jurisdiction over another statute that, at least in part because of the way the Court has interpreted it, is regarded as ‘facilitating’ a new wave of land dispossession.4 In seeking to explain this anomaly, this article draws on the work of a group of scholars who are studying the role of courts in new democracies. The group is particularly interested in two issues: the accountability function of courts (which concerns the capacity of courts to check the power of the political branches), and the role of courts in social transformation. The first phase of this study has been completed.5 The second phase, to which this article belongs, tests a the- oretical model of the role of courts in social transformation that is described in detail else- where.6 In brief, the model assumes that the capacity of courts to be used as agents for social transformation is influenced by a number of ‘indicators’, including: institutional indicators (such as the structure of the legal system and the social composition of the judiciary), indica- tors of poor groups’ voice (the frequency and nature of cases brought), and resource indicators and indicators of access to justice barriers (such as access to legal aid and other funding for lit- igation, and motivational, psychological and practical barriers to access).7 What makes the study of the LCC interesting for purposes of this model is that it provides an opportunity to eliminate some of the variables that typically condition the social transfor- mation performance of courts, such as the social composition of the judiciary and the underly- ing legal framework. Neither of these factors can explain the performance of the LCC in the areas of law just described. The judges on the court, one may safely assume, have not changed their political opinions since their appointment, and the legislation that the LCC is required to enforce remains stridently pro-poor. If the theoretical model tested in this article is sound, this means that the performance of the LCC in these areas must be explicable in terms of one or more of the remaining indicators: either a resource indicator (such as the absence of legal aid or lawyers capable of pursuing effective, pro-poor legal strategies), an access to justice barrier (such as the physical location of the court, the inaccessibility of the legal language used to artic- ulate the claims of the poor, and various other motivational and psychological barriers to access), or an institutional indicator (such as the influence of legal culture, the doctrinal force of the common law, or professional concerns amongst the judges about how their decisions are perceived). Before examining the possible role of these indicators it is necessary first to describe in more detail the nature and functions of the LCC, including the social background of the judges who staff it, the history of its establishment, and the character of the legislation it administers. In addition to reinforcing the points made already in relation to the history of the Court, this sec- 4 The term ‘facilitating’ was used by several speakers at the ESTA Review Workshop held in November 1999 to describe the impact of the Extension of Security of Tenure Act 62 of 1997 (‘the ESTA’) on farm workers. See Department of Land Affairs: Land Rights Directorate ESTA Review Workshop Report (December 1999). At this workshop, which was attended by a wide cross-section of government officials, NGO work- ers and representatives of the farming community, the ESTA and various judgments of the LCC were severe- ly criticised for failing to stem the tide of farm worker evictions in South Africa. There is at present no empirical evidence to support this claim. 5 See sec Gloppen, R Gargarella & E Skaar (eds) Democratization and the Judiciary: The Accountability Function of Courts in New Democracies (2004) (first published as a special issue of the journal Democratization in 2003). 6 See sec Gloppen ‘Analyzing the Role of Courts in Social Transformation: Social Rights Litigation, Court Responsiveness and Capability’ paper presented at the Centre for Applied Legal Studies Workshop on Human Rights, Democracy and Social Transformation: When do Rights Work? (November 2003). 7 Ibid. tion is intended to make the analysis presented here more accessible to non-South African schol- ars interested in the lessons to be learned from the performance of the LCC. It will also be necessary as a preliminary matter to make out a stronger case for the poor, pro-poor performance of the Court in the areas of law chosen for analysis. Assessments of courts’ performance are inevitably contested, with judges themselves necessarily taking the view, at least when justifying their decisions, that their judgments are doctrinally sound. In addition, other legal academics may take a different view from the one presented here on the doctrinal correctness of the decisions discussed. Since the assessment of the correctness of a legal decision is itself an act of legal interpretation, the argument presented in this article is vul- nerable to the criticism that it is based on a flawed understanding of the record of the Court, particularly since only a fraction of the total number of decisions handed down by the Court will be discussed. The further difficulty is that there is a (very respectable) view in the literature that, given the expense of litigation, every case that goes to court must in theory be capable of decision in favour of either party, and therefore that every act of adjudication is really a deci- sion between plausible legal outcomes.8 Indeed, if the LCC never handed down a decision unfavourable to a poor litigant, this in itself would be anomalous, and of course the landown- ers who litigate the other side of these cases would soon seek another forum in which to defend their interests. This methodological problem is addressed in the following way. After describing the nature and functions of the LCC, the third section of this article discusses a series of cases in four areas of law that produced anti-poor outcomes. By ‘anti-poor outcomes’ is meant cases in which the losing party was poor.9 In relation to cases heard in the LCC the identification of a poor liti- gant is not difficult: the vast majority of the cases decided by the Court involve poor, mostly black claimants asserting or defending their statutory land rights against relatively affluent, mostly white landowners.10 Having classified the cases in this way, the article proceeds to Performance of the SA Land Claims Court 201 8 See F Schauer Playing by the Rules: A Philosophical Examination of Rule-Based Decision-making in Law and in Life (1991) 193 (citing G Priest & W Klein ‘The Selection of Disputes for Litigation’ (1984) 13 J of Legal Studies 1-23) and F Schauer ‘Judging in a Corner of the Law’ (1988) 61 Southern California LR 1717- 33). 9 I draw here on some of the methodology developed in scalogram analysis. In its application by judicial behaviouralists, this form of analysis amounts to distinguishing various judicial attitudes, expressed as antinomies (eg pro-labour/pro-business, pro-regulation/anti-regulation) and then assessing the performance of judges in relation to these antinomies across a number of decisions. See M Shapiro & A Stone Sweet On Law, Politics, and Judicialization (2002) 44-46. Scalogram analysis is generally used to study ordinary courts applying the common law, and in respect of non-unanimous decisions involving issues of public pol- icy decided on the merits. See DE Fouts ‘Policy-Making in the Supreme Court of Canada, 1950-1960’ in G Schubert & DJ Danelski (eds) Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision- Making in the East and West (1969) 257-91, 265. The non-unanimity requirement comes from an assump- tion that the handing down of a dissenting judgment means that there were at least two legally plausible outcomes to the case, and that judicial discretion (in the form of an underlying attitude) therefore came into play. It is this part of the methodology that I draw on here. The full application of scalogram analysis is inappropriate because there has not been a single dissenting judgment in the entire history of the LCC, and the LCC is of course not an ordinary court applying the common law. 10 By using the label ‘anti-poor’ to describe the outcomes in these cases I do not mean to suggest that the Court was motivated by anti-poor sentiments. As will become clearer below, the explanation I posit for these anti- poor outcomes is independent of the judges’ private political views – as indeed it must be, since those views, as far as can be ascertained, are not anti-poor. Rather, I choose the term ‘anti-poor’ because it is the bina- ry opposite of the term ‘pro-poor’, and the anomaly I wish to explore is the anomaly of a pro-poor court, interpreting pro-poor legislation, handing down decisions that adversely affected not just the poor litigants involved, but also other similarly situated poor people. 2 0 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E analyse the written reasons given for the decision in each case. The point of this exercise is not to argue that the cases were wrongly decided, in the sense that the Court made clear mistakes of law. Rather, it is to show that plausible, pro-poor legal arguments were presented to the Court, and then either rejected or ignored. Of course, there is room for doubt at this stage over whether the contention that the reject- ed or ignored arguments were plausible is itself doctrinally sound. In two instances, however, the argument that the cases might have been decided differently is supported by decisions of other courts – one of them the appellate decision mentioned earlier, and the other a minority judgment of a judge of a court of equivalent status to the LCC. By referring to these instances, this article shifts the burden of persuasion onto those who would disagree with its interpreta- tion of the cases to show why these other judgments were so clearly wrong that they were not even plausible. The second way in which this article shores up its arguments relating to plausibility is by referring to independent evidence of the way in which the Court’s decisions were perceived. This evidence comes in the form of responses by the legislature to the LCC’s decisions. In two instances one can draw a direct line of causation between a decision discussed here and an amending statute aimed at counteracting that decision. This does not demonstrate, of course, that the two LCC decisions concerned were not doctrinally sound, or that the pro-poor argu- ments they ignored or rejected were plausible, but it does indicate that the legislature was dis- satisfied with the LCC’s performance. Since the LCC is a creature of statute, this result is sig- nificant enough to warrant investigating. From the perspective of the theoretical model tested in this article, a legislative amendment to social transformation legislation is evidence of poor judicial performance in the weak political sense. The next part of the article considers some possible explanations for the poor, pro-poor per- formance of the LCC in the four areas of law discussed, drawing on, and at the same time test- ing, the theoretical model introduced above. In addition to the two sets of indicators already eliminated, two further explanations will not be pursued in detail here: the absence of legal aid, and the legal strategies pursued by the poor to assert their rights. The absence of legal aid can- not explain anti-poor outcomes in a series of cases across several areas of law where plausible, pro-poor legal arguments were presented to the court.11 The same logic applies to the legal strategies pursued by the poor: to the extent that the LCC was presented with plausible pro- poor legal arguments in the cases discussed here, the anti-poor outcomes cannot be attributed to the legal strategies pursued. This leaves three other possible explanations, all of which have to do with institutional indicators, viz the influence of South African legal culture, the doctrinal force of the common law, and the LCC’s desire for approval from its professional peers. The final part of the arti- cle revisits the cases in an attempt to find an explanation for the anti-poor outcomes in these factors. 11 It could, of course, explain a general tendency of interpreting the rights framework in a way contrary to the poor, but this is a different issue. II Background (A) THE LCC’S JURISDICTION AND COMPETENCE The LCC was established in 1996 and handed down its first decision on 16 April 1996. Since then it has handed down over 300 decisions.12 The LCC’s powers and functions are set out in Chapter III of the Restitution Act. As noted above, the Restitution Act was one of the first statutes to be passed by the post-apartheid legislature, from which one may deduce that the issue of land restitution was given high priority by the incoming government. With hindsight, the Restitution Act was perhaps a little too hastily enacted, as there have been numerous amendments to it, one each year from 1995-2000, and again in 2002. The 1999 amendments were very extensive indeed, and virtually legislated the LCC out of the restitution process. This circumstances giving rise to these amendments are discussed in III (A) below. The LCC’s foundational jurisdiction is derived from section 22 of the Restitution Act. In addi- tion, section 13 of the Land Reform (Labour Tenants) Act (‘the LTA’)13 and section 20 of the Extension of Security of Tenure Act (‘the ESTA’)14 define the LCC’s particular jurisdiction in relation to these statutes. The LCC’s jurisdiction over the Restitution Act and the LTA is exclu- sive of other courts, whereas it shares jurisdiction over the ESTA with the magistrates’ courts and the High Court. In practice, the LCC hands down very few decisions under the Restitution Act (about seven a year),15 and the overwhelming majority of restitution claims are settled in terms of the powers conferred on the Minister of Land Affairs under section 42D of the Restitution Act (as amended in 1999).16 The LCC also decides very few labour tenants cases (about five a year),17 notwithstanding the provision in section 13 of the LTA that all labour tenants matters in other courts be referred to the LCC, except where oral evidence has already been led. The vast majority of the LCC’s work, as a proportion of judgments delivered, involves its automatic review jurisdiction under section 19(3) of the ESTA. Over 50 per cent of the LCC’s total output since 1998 has consisted of decisions of this type.18 The LCC’s automatic review jurisdiction has been described as a hybrid jurisdiction, combining elements of appeal and review.19 In essence, on every occasion in which a magistrate hands down an order for eviction against a person who qualifies as a protected occupier under the ESTA, the decision must be sent on review to the LCC. In an important line of cases, the LCC has extended its jurisdiction in this context to all magistrates’ court orders for eviction falling into the ‘sphere of law’ defined by the ESTA.20 Thus, even where the eviction order is not technically speaking handed down Performance of the SA Land Claims Court 203 12 As at the end of June 2004. 13 Act 3 of 1996. 14 Act 62 of 1997. 15 My list contains 53 decisions between 1996 and July 2003, including decisions in applications for leave to appeal. 16 The latest figure available from the Commission on Restitution of Land Rights is that 36 908 restitution claims had been settled by 28 February 2003. 17 My list contains 38 decisions between 1996 and July 2003, including decisions in applications for leave to appeal. 18 The respective percentages for each year of operation of the ESTA are: 1998 (28.8%), 1999 (51.5%), 2000 (72%), 2001 (68.5%), 2002 (59.4%), 2003 (40.7%), 2004 to date (61.5%). 19 Lategan v Koopman en Andere 1998 (3) SA 457 (LCC) at 464C, Atkinson v Van Wyk and Another 1999 (1) SA 1080 (LCC) at 1085-86. 20 See Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561 (LCC), Pitout v Mbolane [2000] 2 All SA 377 (LCC), Mahlangu and another v Van Eeden and another [2000] 3 All SA 321 (LCC), Bergboerdery v Makgoro 2000 (4) SA 575 (LCC), Khuzwayo v Dludla [2000] 4 All SA 329 (LCC), and Van Zyl NO v Maarman [2000] 4 All SA 212 (LCC). 2 0 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E in terms of the ESTA, the LCC will assume jurisdiction to review it if the ESTA was raised in argument, or should have been applied as a matter of law. In a further important decision handed down in 2001, however, the LCC held that its auto- matic review decisions, being decisions of a single judge sitting in chambers, were not formal deci- sions as such.21 Accordingly, in the event of an appeal being raised against such a decision, the appeal should lie first to a two-judge bench of the LCC, and then to the Supreme Court of Appeal. This means that just more than half of the LCC’s decisions are not really decisions at all. The remainder of the LCC’s workload consists of cases under the ESTA that are initiated in the LCC itself. These cases mainly take the form of urgent applications for eviction and appli- cations to enforce occupiers’ or owners’ use rights. The magistrates’ court rules in South Africa are not designed to deal with urgent applications, and hence these cases go directly to the LCC. (B) THE SOCIAL COMPOSITION OF THE COURT There are now four LCC judges: two African men, one Indian woman, and one white man. A fifth judge, a white man, resigned from the Court in 2000 to pursue a career as an advocate at the Johannesburg Bar. The four sitting judges all have backgrounds in human rights law.22 The Judge President, Fikile Bam, was a former Director of the Legal Resources Centre in Port Elizabeth, and sat on the Goldstone Commission of Inquiry. Judge Antonie Gildenhuys, although a former member of the secret Afrikaner club, the Broederbond, went through a self-described personal political transformation in the early 1990s as chair of the National Peace Secretariat. Judge Gildenhuys is also a former President of the Transvaal Law Society, and the author of a leading academic textbook on the law of expropriation. Judge Yasmin Meer’s human rights background includes a brief stint, in 1995, as National Director of South Africa’s leading public interest litigation firm, the Legal Resources Centre. Before that, she practised as an attorney at the Legal Resources Centre for 12 years. Judge Justice Moloto (‘Justice’ is his first name), although never a human rights lawyer, was executive director of the Black Lawyers’ Legal Education Centre for five years, and has been committed throughout his professional career to the development of young black lawyers. (C) LEGAL EDUCATION AND TRAINING OF JUDGES All of the LCC judges have had a formal university legal education. During the period when the judges were in training, university education in South Africa was, with a few exceptions, seg- regated on racial lines, and black lawyers were thus trained either at an historically black uni- versity (like the University of Durban-Westville, where Judge Meer obtained her BA degree) or at a distance learning university, like the University of South Africa (Judges Bam and Moloto). Judge Meer later attended the University of Cape Town for her LLB degree, and the University of Warwick (LLM). Very unusually for his time, President Bam’s first law degree, a BA (Law), was from the University of Cape Town. Judge Gildenhuys graduated BA LLB from the University of Pretoria. He also has a LLD from the University of South Africa. Three of the four judges practised as attorneys before being appointed to the LCC, Judge 21 See Magodi and others v Van Rensburg [2001] 4 All SA 485 (LCC). 22 The information in this section and the next one is taken from the LCC’s website <www.wits.law.ac.za/lcc>. Meer at the LRC, Judge Gildenhuys in a commercial law firm in Johannesburg, and Judge Moloto as an attorney in Durban. The only former advocate amongst the judges is Judge President Bam, who was a member of the Johannesburg Bar and then the Transkei Bar, after being deported from South Africa in 1980. Judge President Bam is also the only one of the four to have had previous judicial experience, as an additional member of the Industrial Courts in the former Ciskei and Transkei ‘homelands’. (D) JUDGES’ PERCEPTION OF THEIR ROLE In its early judgments the LCC expressly stated that it saw itself as interpreting and applying ‘social legislation’, by which it meant legislation whose primary objective was to transform social power structures in favour of the landless groups identified in that legislation. This approach came out most strongly in its judgments on costs orders, where it developed the prin- ciple that costs should generally not be awarded against a poor litigant who litigates in good faith on a novel point of law. Thus the LCC has held that punitive, attorney-client costs will only be awarded where one party litigates ‘maliciously or in wilful disregard of the [other party’s] rights’,23 that ‘[i]t is not always appropriate to grant [ordinary] costs orders in respect of litigation under [the ESTA]’,24 and that parties should not be discouraged from enforcing their rights under social legislation by the fear of an adverse costs order.25 The principle that costs should generally not be awarded against a litigant who has litigated in good faith is direct- ly opposed to the common-law principle that ‘costs follow the result’, ie that the losing party should pay the other side’s costs, whatever their personal economic circumstances might be. The mere fact that the judges of the LCC perceive themselves to be interpreting social legis- lation does not, of course, mean that their judgments have the effect of promoting the objec- tives of that legislation. As argued below, it may be that in practice other factors, such as the legal culture in which they are operating, their greater familiarity with the common law, and their desire for professional respect, exert a restraining influence on their choice of legal rules. Only a close reading of the cases will reveal the extent of the rule choices open to them, and the possible influences on the exercise of their discretion in areas of legal uncertainty – to which task this article now turns. III The Cases The four areas of law chosen for analysis in this article are: (a) the confirmation of out-of-court settlement agreements made in terms of the Restitution Act; (b) the validity of a claim made by an indigenous community under the Restitution Act to return of its ancestral land; (c) the enforce- ment of rural farm dwellers’ right under the Extension of Security of Tenure Act 62 of 1997 (‘the ESTA’) to bury their relatives on the land on which they are residing; and (d) dependants and spouses’ rights under the ESTA not to be arbitrarily evicted. As explained above, these areas were all chosen because they illustrate instances in which the LCC decided cases against poor litigants, Performance of the SA Land Claims Court 205 23 Karabo and Others v Kok and Others 1998 (1) SA 1014 (LCC) at 1024I. 24 Serole and Another v Pienaar 2000 (1) SA 328 (LCC) at 336E. 25 Skhosana v Roos [1999] 2 All SA 652 (LCC) at 666c-e. See also the LCC’s decisions on costs orders under the LTA: Hlatshwayo v Hein 1999 (2) SA 834 (LCC) at 844-50 and Mahlangu v De Jager 1996 (3) SA 325 (LCC) at 246F-247D. 2 0 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E despite the existence of plausible legal arguments justifying an alternative outcome. The cases dis- cussed represent only a fraction of the total number of cases decided by the LCC, most of which have had pro-poor outcomes. The discussion that follows therefore does not purport to be an assessment of the overall performance of the LCC, which would require a book-length study. Rather, my intention is to focus on a set of apparently anomalous outcomes in the hope that the explantory power of the model tested in this article can be demonstrated. (A) SUPERVISION OF RESTITUTION SETTLEMENTS In its very first decision under the Restitution Act, In re Macleantown Residents Association: Re Certain Erven and Commonage in Macleantown (‘the Macleantown case’),26 the LCC was required to endorse a settlement agreement that had been reached between an urban land- claiming community, a local ratepayers’ association, and a municipality. The agreement had been signed after painstaking negotiations, and was described by the LCC in its judgment as demonstrating ‘a common-sense approach to the restitution claim’.27 Nevertheless, the LCC refused to endorse it. The main reasons given for this decision were: ‘the papers submitted to the Court [did] not contain a list of [individual] claimants’,28 no resolutions were filed autho- rising the representatives of the land-claiming community and the ratepayers’ association to sign the settlement agreement on behalf of their constituents,29 there was no proof that the local government authority had the legal power to transfer the land in question to the land-claiming community,30 the ‘involvement’ of each individual member of the land-claiming community in the original land dispossession had not been made out on the papers,31 and the proper Deeds Office description of the land claimed had not been submitted to court.32 Although all of these requirements were technically speaking necessary for the Court to make an effective order, the Restitution Act did not expressly confer on the Court the power to refuse to endorse a settlement agreement for non-compliance with these requirements. Rather, the Court arrives at this rule through interpreting section 14(3) of the Act.33 Section 14(3), as it was then formulated,34 simply set out the procedure that the Commission on Restitution of Land Rights had to follow in referring settlement agreements to the Court. Section 14(6), to which the Court refers in a footnote,35 then went on to provide that the Court should not make an order ‘unless the Commission has, in respect of the claim in question, acted in accordance with the provisions of this section’.36 This provision plainly referred to compliance by the Commission with the procedural steps required by section 14, rather than the substantive requirements for a valid restitution claim. And yet, it is the latter interpretation that the Court prefers, glossing section 14(6) as meaning that, before making a settlement agreement an order 26 1996 (4) SA 1272 (LCC). 27 Ibid 1275C. 28 Ibid 1278B. 29 Ibid 1279D. 30 Ibid 1279F. 31 Ibid 1280E. 32 Ibid 1281E. 33 Ibid 1276G-I. 34 This subsection has since been substituted by sec 6(b) of the Land Restitution and Reform Laws Amendment Act 18 of 1999. 35 Macleantown (note 26 above) 1276J. 36 This subsection has also since been amended, by sec 10(1)(b) of the Land Restitution and Reform Laws Amendment Act and sec 6(e) of the Land Restitution and Reform Laws Amendment Act 18 of 1999. of court, it must ‘determine whether all requirements imposed by such legislation [ie the Restitution Act] have been met’.37 Not surprisingly, the Macleantown decision was very badly received by the Commission, which seems to have understood it as a criticism of its technical competence. At the time, the Commission was struggling under the massive weight of the unexpectedly large number of resti- tution claims lodged, which were then reckoned at 64 000.38 Of these, the Commission had set- tled only one by the end of the fiscal year in which the Macleantown case was decided.39 By insisting on detailed technical compliance with the Act in an uncontested case where all the par- ties were in favour of the solution reached, the LCC missed a crucial opportunity to set itself up as a partner to the Commission in pursuit of the overall policy objectives of the Act. That the decision in the Macleantown case was not dictated by the Restitution Act is illus- trated by a decision of the LCC handed down some three months later, In re Elandskloof Vereniging.40 In this case, the LCC held that its role in relation to the supervision of settlement agreements was not, after all, to assess the underlying validity of the restitution claim, provid- ed the settlement agreement was fairly reached.41 This holding directly contradicted the dictum in Macleantown that ‘[t]he Court can only make a settlement agreement an order of Court if it is a competent order of the Court in terms of the Act’.42 Although the meaning of this dictum is not entirely clear in the abstract, the Court in the very next paragraph of the Macleantown judgment proceeded to inquire whether the claimants had been ‘dispossessed after 1913 under racially discriminatory legislation’,43 confirming that it thought that it was under a duty to ensure that the claim was a valid one under the Restitution Act. This aspect of the holding in Macleantown is quietly abandoned in the Elandskloof case, which does not refer to the Macleantown decision, despite the fact that it was directly in point. Within a year and a half of the Macleantown decision, a new section 42D had been inserted in the Restitution Act giving the Minister of Land Affairs the power to endorse settlement agreements in consultation with the Commission on Restitution of Land Rights, to the exclu- sion of the Court.44 It is impossible to determine the role played by the Macleantown decision in this amendment. But the consequence of the amendment is clear: today, only a minute frac- tion of the total number of restitution claims are decided by the LCC, the vast majority being settled through the administrative procedure laid down in section 42D. The LCC, which was originally conceived as the main institution through which restitution claims would be adjudi- cated, has been virtually legislated out of the restitution process. Performance of the SA Land Claims Court 207 37 Macleantown (note 26 above) 1276H. 38 The total number of restitution claims lodged changes as the investigation of the claims by the Commission pro- ceeds, mainly because some claims are split on investigation into two or more claims. As at the end of December 1998, the total number of claims stood at 63 455, but this has since escalated to 72 975. See R Hall ‘Rural Land Restitution in South Africa’ paper prepared for Programme for Land and Agrarian Studies (July 2003) at 25. 39 Ibid 26. 40 1999 (1) SA 176 (LCC). 41 Ibid 179E. 42 Macleantown (note 26 above) at 1276I-J. 43 Ibid 1277A-F. 44 Inserted by sec 30 of the Land Restitution and Reform Laws Amendment Act 63 of 1997, which came into effect on 21 November 1997. (The Macleantown decision was ahnded down on 4 July 1996.) Section 42D was later substituted by sec 12 of the Land Restitution and Reform Laws Amendment Act 18 of 1999. The substituted provision, which was enacted after a comprehensive ministerial review of the restitution process, including interviews with the LCC and the Commission, goes even further in empowering the Minister to enter into settlement agreements with parties interested in a claim. 2 0 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E (B) CLAIMS BASED ON THE DOCTRINE OF ABORIGINAL TITLE UNDER THE RESTITUTION ACT The question whether the doctrine of aboriginal title, which has been used by indigenous groups in Australia and Canada to claim back their ancestral land, might be applicable in South Africa has loomed large over the restitution process for some time.45 Given the scale of land dispossession, and the proportion of the population that would be able to show a continuing connection to an indigenous group, the adoption of this doctrine would have a significant impact on the stability of land titles across the country. In recognition of this, the African National Congress, during the constitutional negotiations leading up to the adoption of the 1993 South African Constitution, agreed to set 19 June 1913 as the cut-off date for the statu- tory land restitution process.46 The effect of this agreement was to prohibit claims for restitu- tion from people or communities who had been dispossessed of a right in land before this date. The cut-off date did not, however, exclude such claims from being brought under the common law, or indeed claims under the Restitution Act in which the claimants alleged that they had been dispossessed of their aboriginal rights after 19 June 1913. The first, and thus far only, claim of this kind brought in South Africa involved a communi- ty of Khoi San people whose ancestral land is situated in the northwestern corner of South Africa, just south of the Namibian border, stretching all the way to the Atlantic Ocean. The coastal portion of the land is the site of rich alluvial diamond deposits, which have for a long time been mined by a state-owned mining company, Alexkor Ltd. The claimant group, known collectively as the Richtersveld Community, launched two separate cases claiming return of this land. The first case, in the Cape High Court, was based squarely on the doctrine of aboriginal title, which the Richtersveld Community alleged was part of South African common law. The second case, under the Restitution Act, was launched in the LCC. In its first decision in this case, the LCC dismissed a special plea of lis pendens by Alexkor Ltd, holding that the Richterveld Community’s cause of action in the High Court case was suf- ficiently different from the case launched in the LCC to warrant continuing with the latter.47 In its decision on the main issue,48 however, the LCC ruled against the claimant community. According to the first principle of intertemporal law, the Court held, the consequences of the colonial acquisition of a territory must be examined on the basis of the conditions and rules in existence at the time of colonisation.49 It was clear from the surrounding documents that, upon annexation in 1847, the British colonial government assumed full ownership of the Richtersveld, to the exclusion of the Richtersveld Community. The community accordingly had no ownership rights in the subject land after 1913.50 To the extent that their claim was based not on ownership but on aboriginal title, the LCC did not have jurisdiction to decide it because the recognition of aboriginal title depended on the development of the common law.51 Whilst 45 See T Bennett & C Powell ‘Aboriginal Title in South Africa Revisted’ (1999) 15 SAJHR at 449. 46 See Constitution of the Republic of South Africa, Act 200 of 1993. This date is repeated in sec 25(7) of the 1996 Constitution, and in sec 2 of the Restitution Act. Its significance derives from the fact that it was the day on which the Natives Land Act 28 of 1913 commenced. 47 Richtersveld Community v Alexkor Ltd and another 2000 (1) SA 337 (LCC). 48 Richtersveld Community and others v Alexkor Ltd and another 2001 (3) SA 1293 (LCC). 49 Ibid para 42. 50 Ibid para 43. 51 Ibid para 47. it was possible that an aboriginal title right could be recognised as a ‘customary law interest’ for purposes of the Restitution Act, the Court held, such a step again depended on the devel- opment of the common law, and thus fell outside the LCC’s jurisdiction.52 The only basis, therefore, on which the Richtersveld Community could be said to have enjoyed rights in land over the Richtersveld was as beneficial occupiers.53 To succeed in their claim, the Richtersveld Community had to prove that they had been dispossessed of such rights after 1913 as a result of ‘past racially discriminatory laws or practices’. According to the LCC’s previous decisions on this point, this meant that they had to prove dispossession in terms of ‘a law or practice designed to bring about spatial apartheid’.54 None of the laws that had been used to dispossess the Richtersveld Community were of this type, the Court held, being mostly mining laws that were only indirectly discriminatory.55 Nor were any of the practices followed in dispossessing the Richtersveld Community of their land deliberately racist. Rather, they were race-neutral practices aimed at securing the land for mining purposes.56 The LCC accordingly dismissed the claim with a recommendation that the Minister of Land Affairs should consider granting the plaintiffs alternative relief in terms of section 38E(d) of the Restitution Act.57 The LCC was soon asked to revisit its decision in the form of an application for leave to appeal to the Constitutional Court, alternatively the Supreme Court of Appeal. In accordance with the somewhat curious practice that prevails in South Africa, this required the LCC to decide whether there was a reasonable prospect that the Constitutional Court or the Supreme Court of Appeal would come to a different conclusion, which was a bit like asking it to decide whether there was any possibility that it might have been wrong. In the event, the LCC refused leave to appeal for much the same reasons given in its main judgment.58 The Richtersveld Community’s direct appli- cation to the Supreme Court of Appeal was, however, subsequently granted. The confidence demonstrated by the LCC in refusing leave to appeal was not borne out by the Supreme Court of Appeal’s judgment, which emphatically rejected the two main bases for the LCC’s decision.59 The first point of difference concerned the effect of the annexation of the Richtersveld by the Cape Colony in 1847. On this point, the LCC had held that, since the colo- nial authorities had not expressly recognised the existing rights of the Richtersveld people, the effect of the annexation was to extinguish them. On the contrary, the Supreme Court of Appeal held, ‘a mere change in sovereignty does not extinguish the private property rights of the inhab- itants of a conquered territory which continue in force unless confiscated by an act of state’.60 In any event, on the facts, it was not clear whether the colonial authorities had not recognised the rights of the Richtersveld people.61 In relation to the issue of whether the Richtersveld Community had been dispossessed of their rights ‘as a result of past racially discriminatory laws or practices’, the Supreme Court of Performance of the SA Land Claims Court 209 52 Ibid para 53. 53 Ibid para 65. A beneficial occupier under the Restitution Act is someone who has been in occupation of the land for ‘not less than 10 years prior to the dispossession in question’ (see definition of ‘right in land’ in sec 1). 54 Ibid para 93, citing Minister of Land Affairs and Another v Slamdien and others [1999] 1 All SA 608 (LCC); 1999 (4) BCLR 413 (LCC). 55 Ibid para 98. 56 Ibid para 113. 57 Ibid para 118. 58 Richtersveld and others v Alexkor Ltd and another [2001] 4 All SA 563 (LCC) paras 13-26. 59 Richtersveld Community and others v Alexkor Ltd and another [2003] 2 All SA 27 (SCA). 60 Ibid para 55. 61 Ibid para 62. 2 1 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Appeal again emphatically rejected the LCC’s reasoning. In particular, the Supreme Court of Appeal held that the LCC’s interpretation of this phrase as meaning that the law or practice concerned had to relate to the furtherance of ‘spatial apartheid’ was too ‘restrictive’.62 ‘The real ratio of the judgment in Slamdien was … not the absence of “spatial apartheid” measures but that the [Restitution] Act limited restitution remedies to people who had been discriminated against in the exercise of their land rights’.63 It was clear from the evidence that, although there may have been no intention on the part of the state to discriminate against the Richtersveld Community, the effect of the laws and practices applied to them had been discriminatory.64 In accordance with the Constitutional Court’s equality jurisprudence, this was all that the claimant community had to show.65 The significance of the Supreme Court of Appeal’s reversal of the LCC’s decision in the Richtersveld case is that it is based on two principles of law that a specialised court might have been expected to have got right. The LCC’s ‘doctrine of recognition’ approach to the effect of the annexation of the Richtersveld has been widely discredited in foreign law and was not in any event borne out by the evidence. Similarly, the LCC’s failure to emphasise the obviously dis- criminatory impact of the laws and practices at issue in this case is very puzzling. The passages on this point in the LCC judgment read like a wilful denial of the obvious. At the very least, the Supreme Court of Appeal’s decision confirms that there were plausible legal arguments jus- tifying a pro-poor outcome to the case, and that these were ignored. Why should this have hap- pened? The answer clearly does not lie in the absence of legal aid or in the legal strategy pur- sued by the Richtersveld Community, since the Legal Resources Centre supported the Com- munity throughout, with the assistance of one of South Africa’s leading advocates.66 The answer must lie somewhere else, in one or more of the institutional indicators impacting on the LCC’s performance. The next section explores this question further. Before doing so, two addi- tional areas of law in which the LCC has ignored or rejected plausible pro-poor arguments are discussed, this time involving the interpretation of the Extension of Security of Tenure Act, a tenancy protection statute over which the LCC was given jurisdiction in 1997. (C) RIGHTS OF SPOUSES AND DEPENDANTS AGAINST ARBITRARY EVICTION According to the semi-feudal arrangements that still prevail on many South African farms, the primary employment relationship is that between the farmer and the male ‘head’ of the farm worker household, with the household head’s spouse and other dependants deriving their right to reside on the farm through him. Often, this belies an actual situation where the spouse is also employed on the farm, with her own separate contractual relationship with the landowner. Under the common law, and according to conventional pleading practice, the de facto existence of two separate contractual relationships is ignored, and a plaintiff may institute an action for ejectment against the male head of household, citing the spouse and dependants as ‘all those who derive their right to occupy the property through him’. In the draft version of the Extension of Security of Tenure Act (‘ESTA’) that was published for public comment in February 1997, an express distinction was made between ‘primary’ and 62 Ibid para 97. 63 Ibid para 99. 64 Ibid para 104. 65 Ibid para 105. The Supreme Court of Appeal’s decision was confirmed on appeal to the Constitutional Court. See Alexkor Ltd and Another v Richtersveld Community and Others 2004 (5) SA 460 (CC). 66 Wim Trengove SC. ‘secondary’ occupiers, the latter category consisting mainly of women and children living on commercial farms. The clear intention behind this distinction was to amend the common law by providing special protection against arbitrary eviction to the latter group. After an inter- vention by the National Land Committee,67 however, the drafters were persuaded that the dis- tinction between primary and secondary occupiers would only perpetuate the discriminatory treatment of female farm workers. The distinction was accordingly dropped. Secondary occu- piers, the drafters assured everyone, would be protected as occupiers in their own right. In its decision in Conradie v Hanekom and Another,68 the LCC appeared to vindicate this bold step when ruling that a woman, whose husband had been dismissed for assaulting a fel- low farm worker, could not be evicted merely for that reason. Since she was herself an employ- ee on the farm, and therefore an occupier in her own right, the LCC held, separate grounds for evicting her had to be alleged and proven.69 Not only that, but her husband, although lawful- ly dismissed and therefore liable to eviction under the Act, could not be denied access to the farm, because his wife’s right to family life entitled her to have him stay with her.70 In effect, this meant that he could not be evicted either. The Conradie judgment was immediately hailed as a triumph for court-driven social transfor- mation in South Africa, overturning as it did the centuries-old vulnerability of female farm work- ers to the consequences of their husbands’ actions. Unfortunately, the victory was short-lived: some two and a half years later, in Die Landbou Navorsingsraaad v Klaasen,71 a different judge of the LCC glossed and restricted the Conradie judgment. The Klaasen gloss effectively re-instates the discarded distinction between primary and secondary occupiers, but without restoring the spe- cial protection originally provided for the latter group. According to the LCC in this case, the ‘gen- eral rule’ in eviction proceedings in South Africa is that ‘the sheriff may remove from the farm any person claiming [a right of occupation] through or under [an] occupier’.72 The ESTA did not expressly change this rule. On the contrary, it appeared to support it in a number of provisions that implied that ‘an eviction order against an “occupier” (as defined) is also operative against family members living with that occupier’.73 In addition, the term occupier in the ESTA was used inconsistently, resulting in several ‘incongruities’, including the situation at issue in the Conradie case, where a lawfully dismissed farm worker was allowed to remain on the farm on the basis of his wife’s right to family life.74 It followed that the word ‘occupier’ had to be understood in a wide and a narrow sense. Occupiers in the wide sense fell ‘outside the statutory definition of “occupi- er”’ and accordingly did not enjoy protection in their own right.75 This interpretation, the Court added, would not ‘disempower’ such occupiers because their needs were given special attention in the Act, and they would in the end enjoy the same protection against eviction as the occupier from whom they derived their right to reside on the land.76 Performance of the SA Land Claims Court 211 67 One of the main non-governmental organisations active in the land sector in South Africa. 68 1999 (4) SA 491 (LCC). 69 Ibid para 20. 70 Ibid para 21(vii), citing sec 6(2)(d) of ESTA. 71 LCC Case 83R/01 (unreported judgment of Gildenhuys AJ handed down on 29 October 2001) para 24. 72 Ibid para 26, citing Ntai and others v Vereniging Town Council and Another 1953 (4) SA 579 (A) at 584 and 590. 73 Ibid para 26 (citing two examples in paras 27 and 28). 74 Ibid para 32. 75 Ibid para 33. 76 Ibid para 34. 2 1 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Whereas the effect of the Conradie judgment had been to force landowners, when drafting pleadings in an action for ejectment under the ESTA, to cite each member of the male farm worker’s family by name, and allege separate substantive grounds for their eviction (which might have included an express allegation that their permission to reside on the property was entirely derived through the male farm worker), the practical effect of the Klaasen judgment has been to restore the common-law position in so far as the method of citation of a farm worker’s spouse and dependants is concerned. In the result, female farm workers and their children are once again being routinely evicted along with their husbands, unless they can prove (the bur- den being on them) that their tenure rights are not derivative on the tenure rights of the male head of household (because, for example, their employment contract states or implies that they have a right to reside on the farm notwithstanding the dismissal of their husband) . (D) FARM DWELLERS’ BURIAL RIGHTS UNDER THE ESTA The LCC’s somewhat reluctant embrace of the transformative potential of the ESTA is further discernible in its approach to occupiers’ right to bury relatives on land belonging to someone else. In South African law, the right to bury a relative is a sui generis right, but comes closest to a personal servitude in favour of the deceased’s relatives, in perpetuity.77 At common law, per- sonal servitudes are typically created by agreement between the owner of the servient tenement and the servitude holder. The servitude binds successors in title of the servient tenement if reg- istered, provided it satisfies the so-called ‘subtraction from dominium’ test.78 As originally enacted, section 6 of the ESTA conferred certain use and service rights on stau- torily protected occupiers, but did not specifically confer on them the right to bury their rela- tives on the land on which they were staying. Rather, section 6(4) conferred on everyone (whether or not they qualified as an occupier) the right to visit and maintain family graves, sub- ject to reasonable conditions imposed by the owner or person in charge of the land. The ESTA also conferred on occupiers the right to ‘freedom of religion, belief and opinion and of expres- sion’,79 and the right ‘to family life in accordance with the culture of that family’.80 For many rural African families in South Africa, the right to culture protects a sphere of personal life that is indistinguishable from that protected by the freedom of religion, and includes the important cultural practice of communicating with their ancestors through the establishment, ritual visit- ing, and maintenance of family burial sites. In Serole and Another v Pienaar,81 the LCC was asked to enforce an alleged right to bury the applicant’s family member, either as a use right under the ESTA, or in terms of the applicant’s rights, as a protected occupier, to culture. Comparing the granting of permission to establish a grave to the granting of a servitude, and therefore ‘a significant inroad into the owner’s common-law property rights’82 the LCC dismissed the application. Before enforcing a right to bury a relative on land belonging to someone else, the LCC held, the Court would need to be convinced by suitable evidence 77 It is not a personal servitude in the strict sense, because a personal servitude is typically granted in favour of a single person for their lifetime. In the case of burial rights, the servitude is effectively granted in favour of a family, including descendants yet to be born. 78 Laid down in Ex parte Geldenhuys 1926 OPD 155. 79 Sec 5(e). 80 Sec 6(2)(d). 81 2000 (1) SA 328 (LCC). 82 Ibid para 16. that occupiers had an express or tacit contractual right to this effect.83 Mere evidence of the exis- tence of a graveyard that had been used in the past would not suffice.84 The Serole decision was cited with approval in Buhrmann v Nkosi and another,85 a Full Bench decision of the Transvaal Provincial Division, which was was later confirmed on appeal.86 Although the reasons for decision given in the two main Buhrmann judgments differ somewhat from the reasons given in the LCC judgment, the three courts adopt essentially the same view, viz that in a direct conflict between the right to property and the right to culture and religion, the former must trump the latter. The only dissenting voice in Buhrmann was that of Ngoepe JP, who wrote a minority judgment in the Full Bench decision in which he argued that a landowner’s property right in a small piece of earth could not be said to trump a sincerely held religious belief.87 It is perhaps not insignificant that Ngoepe JP was the only African judge involved in deciding the Buhrmann case. Certainly, his judgment, in quoting a lengthy passage from the occupier’s affidavit,88 reveals an understanding of the importance of the practice of ancestor worship that is absent from the other judgments. Not only is his judgment more understanding of this practice, but it also presents a plausible legal argument that might have justified an alternative outcome, not only in the Buhrmann case, but also in Serole. In essence, Ngoepe JP argues, the dispute over occupiers’ burial rights under the ESTA represents an irres- oluble conflict between the interests of owners and occupiers, each of whom can claim protec- tion for their interests in both statutory and constitutional rights. In such a situation, the judge has no choice but to vindicate one right at the expense of the other. In so doing, he or she must be guided by the relative importance attached to the competing rights, both in the statute under consideration and in the Constitution.89 Further guidance can be found in considering the prac- tical consequences of the decision, one way or the other.90 The plausibility of Ngoepe JP’s argument is enhanced by the fact that the main judgments in the Serole and Buhrmann cases are all premised on the closest thing to a clear mistake of law one is ever likely to encounter, viz the view that it was never the intention of the legislature when enacting the ESTA to confer servitudinal rights on occupiers. On the contrary, section 24(1) of the ESTA provides that ‘[t]he rights of an occupier shall … be binding on a successor in title of an owner or person in charge of the land concerned’. According to the subtraction from the dominium test mentioned earlier, this means that occupiers’ rights are statutory real rights with the same legal effect as registered personal servitudes. Whether motivated by the frustration of its original intention, or because of a superven- ing intention to alter the outcome of the Serole and Buhrmann cases, the legislature quick- ly responded to the Supreme Court of Appeal’s decision in Buhrmann by amending the ESTA so as to make it clear that occupiers enjoyed the right in certain circumstances to bury their relatives on land belonging to someone else. In particular, section 6(2) of the ESTA was Performance of the SA Land Claims Court 213 83 Ibid para 17. 84 Ibid. 85 [1999] 4 All SA 337 (T). 86 Nkosi and another v Buhrmann 2002 (1) SA 372 (SCA). 87 Buhrmann (note 86 above) at 352c and 354c. 88 Ibid 351a-e. 89 In this regard, Ngoepe JP argues that secs 5 and 6 of the ESTA, together with other sections, ‘are specifi- cally aimed at making some inroad into [owners’ rights]’, and therefore that the right of ownership must in this instance give way to the right of freedom of religion in sec 5(d) of the ESTA (ibid at 353j). 90 Ibid 354c (dismissing fears that ‘an avalanche of burials might follow’ the granting of the application in the Buhrmann case). 2 1 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E amended by the insertion of a new paragraph, para (dA), which provides that: …[An occupier shall have the right] to bury a deceased member of his or her family who, at the time of that person’s death, was residing on the land on which the occu- pier is residing, in accordance with their religion or cultural belief, if an established practice in respect of that land exists…91 At the same time, ‘established practice’ was defined in s 1(1) as meaning: a practice in terms of which the owner or person in charge or his or her predecessor in title routinely gave permission to people residing on the land to bury deceased members of their family on that land in accordance with their religion or cultural belief.92 The effect of this amendment was to give occupiers who are able to prove that they were rou- tinely granted permission to bury their family members in the past, the right to do so, without the permission of the landowner.93 As argued earlier, although this amendment does not show that the LCC, the Full Bench of the TPD and the Supreme Court of Appeal, in deciding the Serole and Buhrmann cases, made clear mistakes of law, or that Ngoepe JP’s argument in sup- port of an alternative outcome was plausible, it does indicate that the LCC failed to fulfil the social transformation function allocated to it by the legislature. The possible explanations for this result are themselves worth investigating for what they reveal about the role of courts in new democracies, particularly since, in the case of the LCC, some of the factors that might typ- ically have influenced it were absent. IV The Possible Explanations In all four areas of law discussed in the previous section the LCC handed down decisions that were unfavourable to poor litigants, despite the existence of plausible legal arguments to the contrary. This is most clearly apparent in the Richtersveld case, where a higher court overturned the LCC decision in terms quite dismissive of its reasoning. In the case of spouses and depen- dants’ rights under the ESTA, the LCC restricted the impact of a rule laid down in one of its prior decisions that had been more favourable to the poor, thereby exposing female farm work- ers and their children to the possibility of being evicted through no fault of their own. In the burial rights cases, Ngoepe JP’s dissenting judgment in Buhrmann is indicative of the way that the issue might have been decided in Serole had the LCC not proceeded from an erroneous legal premise. That the LCC’s decision did not accord with the legislature’s social transformation objectives is evidenced by the amendment rapidly effected to the ESTA after the appellate deci- 91 As inserted by sec 7(a) of the Land Affairs General Amendment Act 51 of 2001. 92 Definition of ‘established practice’ inserted by the Land Affairs General Amendment Act 51 of 2001. 93 In an interesting sequel to this story, the constitutionality of this amendment was challenged soon after its enact- ment under the constitutional property clause. See Nhlabati v Fick [2003] 2 All SA 323 (LCC); 2003 (7) BCLR 806 (LCC). Finding that the amendment provided for the uncompensated expropriation of property contrary to sec 25(2) and (3) of the Constitution, the LCC upheld it under the general limitations clause as being a lim- itation on the right to property that was reasonable and justifiable in an open and democratic society. sion in Buhrmann. The Macleantown decision, too, met with a fairly swift legislative response that virtually eliminated the LCC from the restitution process. The fact that the LCC had by this time tacitly overruled its own decision suggests that a plausible pro-poor legal argument had all along been available to it, but was for some reason ignored. The absence of effective legal aid for the rural poor has certainly contributed to the failure of the legislation over which the LCC has jurisdiction to achieve its objectives, but this factor on its own cannot explain anti-poor outcomes in cases where the poor were effectively represented. The absence of an effective legal strategy on the part of poor litigants also does not explain these outcomes, since two of the cases discussed (Richtersveld and Serole) were taken on by experi- enced human rights lawyers, and the others involved areas of law in which the legal strategy pur- sued was initially successful (Conradie) or in which there was no need for a legal strategy because the LCC was simply required to confirm a settlement agreement (Macleantown). Enough at least has been said to suggest that the performance of the LCC must be attribut- able to other factors. If the theoretical model tested in this article is sound, it must be possible to explain the outcomes in these cases by reference to one or more of the three institutional indi- cators identified, these being: the legal culture in which the LCC is operating, the residual influ- ence of common-law rules and forms of legal reasoning, or a desire on the part of the judges for professional respect. The possible role of these indicators in explaining the performance of the LCC is now discussed in turn. (A) THE INFLUENCE OF LEGAL CULTURE (i) Defining South African Legal Culture By far the most comprehensive study of South African legal culture is that by Martin Chanock in The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice.94 As its title suggests, this work is mainly a historical study, although it does contain a speculative final chapter in which Chanock considers how the transition to democracy in 1994 might have affected the received legal culture he describes in the rest of his book. For Chanock, ‘a legal cul- ture is made up of an interrelated set of discourses about law: some professional, some admin- istrative, some political, some popular’.95 This is a very broad definition, to which he is driven because of his concern to shift the debate about South African legal culture away from what ‘courts and judges’ do towards the study of bureaucratic behaviour. Chanock thus makes a dis- tinction between professional legal discourse, which he assumes was dominated by legal for- malism,96 and bureaucratic legal discourse, which he argues was legal realist in character.97 He then goes on to discuss in detail the nature of bureaucratic legal culture, reducing the discus- sion of professional legal discourse to a single chapter.98 In the result, Chanock’s study, despite its length and theoretical ambition, has little to contribute to the debate about the nature of pro- fessional legal discourse in South Africa. Unsurprisingly, the most intense period of debate about South African legal culture in the Performance of the SA Land Claims Court 215 94 Published by Cambridge University Press in 2001. 95 Ibid 23. 96 Ibid. 97 Ibid. 98 Ibid chapter 10. 2 1 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E narrow sense occurred during the last decade and a half of apartheid, when liberal legal aca- demics produced a series of studies on the role of lawyers and judges in that system. The best known of these studies are those by Hugh Corder,99 Christopher Forsyth,100 John Dugard,101 Stephen Ellmann,102 David Dyzenhaus,103 and Richard Abel.104 In general, this literature depicts professional legal culture as ‘executive-minded’,105 by which is meant a tendency to defer to the intuited wishes of the executive, whether by formalistic application of clearly artic- ulated rules, or by filling doctrinal gaps with rules that the legal professional perceived to be in line with the executive’s preferred policy choice.106 In relation to judges, the point of this debate was of course to expose or defend the degree of discretion enjoyed by the judiciary when deciding politically controversial cases, and thereby to explore the extent of the opportunities available to judges to soften the impact of apartheid laws. Interestingly, the liberal camp split into two on this issue, with some aca- demics positing the existence of some discretion as the moral justification judges had for staying in office and others the absence of any real discretion as the reason why judges had a moral duty to resign.107 For conservative defenders of the judiciary, of course, the absence of discretion was the very reason why judges could not be charged with complicity in the apartheid system.108 In this way, one section of the liberal camp and the conservative camp may have had a common strategic interest in typifying professional legal discourse as being more committed to legal formalism than it actually was. Certainly, the extreme view that judges are never required to fill doctrinal gaps by resort to policy-reasoning would have been dismissed by professionals of all political stripes.109 Nevertheless, there does seem to be an overwhelming consensus in the literature that professional legal discourse under apartheid, particularly in relation to the interpretation of statutes,110 was predominantly 99 Judges at Work: The Role and Attitudes of the South African Appellate Judiciary, 1910-50 (1984). 100 In Danger for their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950-80 (1985). 101 ‘The Judicial Process, Positivism and Civil Liberty’ (1971) 88 SALJ 181 at 182. See also J Dugard Human Rights and the South African Legal Order (1978). 102 In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency (1992). 103 Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (1991) (hereafter Dyzenhaus Hard Cases). See too D Dyzenhaus Truth, Reconciliation and the Apartheid Legal Order (1998) (hereafter Dyzenhaus Truth, Reconciliation and the Apartheid Legal Order). 104 Politics by Other Means: Law in the Struggle against Apartheid, 1980-1994 (1995). 105 The origin of this term appears to be a passage in Lord Atkin’s dissent in Liversidge v Anderson [1952] AC 206. See Dyzenhaus Hard Cases (note 103 above) 93-97. The Liversidge decision later played a central role in the South African Appellate Division’s approach to national security cases, and Lord Atkin’s phrase con- sequently came to be used by liberal legal academics as a convenient label for this approach. See, for exam- ple, Cameron ‘Legal Chauvinism, Executive-Mindedness and Justice: LC Steyn’s Impact on South African Law’ (1982) 99 SALJ 38, and Forsyth (note 100 above) 226-34. 106 Note David Dyzenhaus’s interesting alternative thesis that the South African judiciary under apartheid was not so much ‘executive-minded’ as committed to a doctrine of judicial responsibility that required them to align themselves with the views of the executive (Dyzenhaus Hard Cases (note 103 above) 105). 107 See R Wacks ‘Judges and Injustice’ (1984) 101 SALJ 266; J Dugard ‘Should Judges Resign? A Reply to Professor Wacks’ (1984) 101 SALJ at 286. 108 See A Van Blerk ‘The Irony of Labels’ (1982) 99 SALJ 365 and A Van Blerk Judge and Be Judged (1988). See also LC Steyn ‘Regsbank en Regsfakulteit’ (1967) 30 THRHR at 101. 109 See Forsyth (note 100 above) at 230 (arguing that judicial formalism in South Africa under aparthied was not so much the expression of a firmly held legal theory as a device to ‘conceal the reality of [judicial] choice … from the reader of the judgment’). 110 See Forsyth (note 100 above) at 207 commenting on the use of ‘principle and policy’ in the development of the common law under apartheid. formalistic.111 Even liberal defenders of the judiciary had to concede that the opportunities for softening the impact of apartheid laws by exploiting doctrinal gaps were few and far between.112 This was partly the result of the apartheid legislature’s use of increasingly de- tailed rules. But it was also partly the result of the fact that legal professional discourse cen- sured any overt instances of judicial law making, however well intentioned. The question whether South African legal culture in the narrow sense has begun to change under the influence of the new democratic order has not been extensively studied, but there is some research that touches on this issue indirectly. After the Constitutional Court’s first year of operation, Alfred Cockrell published a much-cited article in which he argued that the Constitutional Court had yet to develop the coherent ‘substantive vision of law’ required by the new Constitution.113 He attributed this failure in large measure to the lag-effect of the judges’ background and training in a rule-bound, ‘formal vision of law’.114 Two years’ later, Karl Klare published an equally celebrated article in which he examined the new modes of legal reasoning required by the South African Constitution, and pondered on the likelihood of these new modes being adopted by the legal profession and judges.115 In a section devoted specifically to legal culture, Klare remarked that ‘[a] visiting U.S. lawyer cannot help but be struck by the conser- vatism of South African legal culture’.116 He went on to explain that what he meant by this was not ‘conservatism’ in the form of political ideology, but ‘cautious traditions of analysis common to South African lawyers of all political outlooks’.117 More recently, Cora Hoexter has defined legal formalism in its South African guise as ‘a judi- cial tendency to attach undue importance to the pigeonholing of a legal problem and to its superficial or outward characteristics; and a concomitant judicial tendency to rely on techni- cality rather than substantive principle or policy, and on conceptualism instead of common sense’.118 As Hoexter notes, this approach to legal interpretation is not necessarily conserva- tive, since a formalistic interpretative strategy can be, and was under apartheid, used to achieve progressive results.119 For the same reason, a formalistic approach to progressive, social legis- Performance of the SA Land Claims Court 217 111 For example, David Dyzenhaus’s account of the South African judiciary’s approach to the interpretation of apartheid legislation dealing with racial segregation and national security distinguishes between two main approaches: a ‘plain fact’ approach and a ‘common law’ approach. He describes the former approach as open to the ‘charge of formalism and mechanism’ (Dyzenhaus Hard Cases (note 103 above) at 58) because of its ten- dency to fill interpretative gaps ‘by deciding the case in accordance with what would jump to the minds of most white South Africans’. Later he states that ‘a blinkered focus on the provisions of the statute’ is a ‘hallmark of the plain fact approach’, one that goes ‘with a doctrine of judicial responsibility which seeks to keep a judge’s moral and political convictions out of interpretation’ (ibid 90). See also D Dyzenhaus Truth, Reconcilation and the Apartheid Legal Order (note 103 above) at 77 (describing the plain fact approach as ‘part of a judicial response pattern … identified’ by Robert Cover as a ‘retreat to a mechanistic formalism’ (quoting R Cover Justice Accused: Antislavery and the Judicial Process (1975) at 232). The common law approach identified by Dyzenhaus is, in my view, equally a retreat to ‘a mechanistic formalism’ in as much as the common law, rather than principled or policy-based reasoning, is used to fill the interpretative gap. 112 See Dugard (note 107 above) at 291 (remarking that there was ‘some room for judicial advancement of human rights in the interstices of the apartheid legal order’). 113 A Cockrell ‘Rainbow Jurisprudence’ (1996) 12 SAJHR at 1. 114 Ibid 35. 115 Karl E Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR at 146. 116 Ibid 168. 117 Ibid. 118 ‘Contracts in Administrative Law: Life after Formalism?’ (2004) 121 SALJ 595-618. 119 See Abel (note 104 above) at 490 (referring to legal formalism as a ‘two-edged sword’, which ‘could be invoked by the state as well as against it’, and to the fact that ‘parties and courts opportunistically used and ignored legal formalism’). 2 1 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E lation is not necessarily an indication of conservative judicial politics, inasmuch as the formal application of a clearly stated pro-poor rule should in theory produce a pro-poor outcome. Where the legislation is unclear, however, or where it requires judges to engage in substantive reasoning as part of the formulated rule, a culture of legal formalism may work against the achievement of the objectives of a social transformation law. The next section explores this question in greater detail. (ii) Legal Formalism and the Interpretation of Social Transformation Statutes The literature on legal formalism distinguishes between legal formalism as a legal theory and legal formalism as a mode of legal reasoning.120 The two senses of the term are said to share a common ‘attitude to verbally formulated rules which both seeks to disguise and to minimize the need for [decision-maker] choice, once the general rule has been laid down’.121 The charge of legal formalism is almost always pejorative,122 and consequently no serious scholar is said to espouse this theory, at least in its pure form.123 Rather, legal formalism is said to consist either in the mistaken belief ‘that a particular abstract legal norm can generate a particular subrule’, or in a ‘general tendency to overestimate the capacity of norms … to generate subrules by deduction’.124 A tendency of this sort was the tendency against which the legal realist move- ment in the United States is said to have reacted in the early part of the last century.125 In juris- dictions where legal realism is the dominant professional legal culture, such as the United States after the attack on formalism, legal formalism survives in individual instances of legal inter- pretation.126 In the context of adjudication, legal formalism in the narrow sense may manifest itself in one of two main ways: either as a genuine mistake regarding the ambit of the rule being applied, such that the judge sincerely believes that the outcome of the case is determined by deduction from the rule being applied; or as a discursive strategy used to mask an outcome that is moti- vated by a policy choice that the judge for some or other reason does not wish to articulate expressly. Where adjudication occurs against the background of a professional legal culture that censures overt judicial law making, such as that prevailing in South Africa, the reason for not disclosing a policy choice need not be the sinister reason that the judge wishes to legislate by stealth. It may simply be that the judge has been so immersed in a culture of justifying decisions by deduction from general rules that he or she is incapable, for professional reasons, of justify- ing decisions in any other way. It follows that, when interpreting a legislative rule, any ambiguity in the formulation of the rule, or any under-inclusiveness of the rule when applied to the facts, will create a kind of pro- 120 See D Kennedy A Critique of Adjudication (fin de siècle) (1997) at 105-07; HLA Hart The Concept of Law (1961) 121-150; NE Simmonds Central Issues in Jurisprudence: Justice, Law and Rights (1986) at 87 (dis- cussing Hart’s distinction between formalism and rule-scepticism). 121 Hart (note 120 above) at 126. 122 Ibid (referring to the ‘vice known to legal theory as formalism or conceptualism’). See also F Schauer Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991) 214 (referring to the ‘argument for what is often pejoratively referred to as “formalism”’). 123 See, however, BA Garner (ed) Black’s Law Dictionary (7ed 1999) at 904, which lists Christopher Columbus Langdell and Lon Fuller as legal formalists. 124 Kennedy (note 120 above) at 106. 125 Brian Bix Jurisprudence: Theory and Context (1996) at 152-53. 126 Kennedy (note 120 above) at 106-7. fessional tension in the mind of a judge committed to legal formalism, all the more so where the rule occurs in a social transformation statute. By definition, the issue to be decided in a case involving the interpretation of this sort of statute will be the extent to which the legislature intended to transform the social order, either directly or by amendment of the existing legal rules. Faced by a situation of legal indeterminacy, the instinctive reaction of a judge committed to legal formalism is to try to close the doctrinal gap by falling back on the maxim of statuto- ry interpretation that the statute amends the existing legal rules only to the extent that it does so expressly. In many cases, this means that, rather than filling the doctrinal gap with a princi- ple-based or policy-derived rule, the judge will come to the conclusion that the pre-existing legal rules (of common law or statute) have not been amended. Of course, this does not mean that the doctrinal gap left by the social transformation statute remains unfilled. It simply means that it is filled by the pre-existing legal rules. Karl Klare’s observation about the role of ‘cautious traditions of analysis common to South African lawyers of all political outlooks’127 makes much the same point: it is not that judges committed to legal formalism are necessarily conservative, it is that their professional training and, in particular, their aversion to policy-reasoning, often drives them to fill doctrinal gaps in social transformation statutes with pre-existing legal rules. The distinction Klare draws between judicial ideology and the dominant professional legal culture in South Africa is, I think, an important one for the assessment of the performance of the LCC. As noted earlier, the LCC judges all had prior careers as human rights lawyers or lawyers engaged in what might loosely be termed ‘progressive’ causes, such as the education of black lawyers or the national peace process. Although there is probably a range of political thought represented on the Court, none of the judges can be described as a political conservative. Nevertheless, they were all trained in the apartheid era, and can therefore be expected to have absorbed the then dominant profes- sional legal culture, a culture in which respect for the techniques of deductive reasoning tend- ed to outweigh resort to principles or policy arguments. If this is correct, what we should expect to find in the LCC’s judgments is a tendency to shun principles and policy arguments in favour of strained deductions from general rules. (iii) Revisiting the Cases The Macleantown decision, as we have seen, is characterised by the high value placed by the Court on formal compliance with the Restitution Act and an almost wilful disregard of the con- sequences of its decision for the restitution process. The LCC must have been aware, as it wrote its judgment, of the painfully slow progress the Commission on Restitution of Land Rights had been making in settling claims. And yet it chose to hand down a highly technical judgment in which the fact that the parties were all in agreement as to how the claim should be settled was given less weight than the question whether the enforcement of the settlement agreement would be a competent order for the Court to make. Had the deficiencies in the settlement agreement been substantial, or the likely impact on the parties and other affected persons of the endorse- ment of a technically deficient agreement severe, this might have been a reasonable approach for the Court to have taken. But neither of these factors was present. Nor did the Court attempt, in the fashioning of its order, to balance its concern for technical correctness with the need to assist the Commission in the performance of its duties. Rather, the relationship that the Performance of the SA Land Claims Court 219 127 Klare (note 115 above) at 168. 2 2 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Court sought to construct with the Commission was that of hierophant and acolyte, with the Court initiating the Commission into the sacred mysteries of the law. This approach is very typ- ical of a professional legal culture in which judges’ legitimacy is built on an assumed absence of discretion in the face of determinate rules. The problem confronting the LCC in the Macleantown case, however, was that the Resti- tution Act was unclear on what its role in enforcing settlement agreements should be. As we have seen, section 14(3) of the Act (as originally formulated) simply set out the procedure that the Commission had to follow in referring settlement agreements to the Court, and section 14(6) provided that the Court should refuse to endorse a settlement agreement if the proper procedure had not been followed. But by what criteria the Court should decide whether or not to enforce a settlement agreement the Restitution Act did not say. Faced with this doctrinal gap, the judges’ professional training led them to supply a rule as if by logical deduction from the statute. Since the enforcement of a settlement agreement amounts to the making of a court order, the Court reasons, ‘the Court can only make a settlement agreement an order of the Court if it is a competent order of the Court in terms of the Act’.128 This is a neat syllogism, but the rule the Court thereby derives is hardly dictated by the Restitution Act in the manner the Court would have us believe. The closest the Court in Macleantown gets to policy reasoning is in its statement that the consequence of the enforcement of the settlement agreement would be ‘the transfer of land rights either to dispossessed black families or to a community’.129 This consequence of course justifies taking its duty to enforce settlement agreements seriously. But the degree of time and resources invested in ensuring that settlement agreements under the Restitution Act are techni- cally correct obviously has to be weighed against the total number of claims lodged, the aver- age time and resources available for the settlement of each claim, and the political context in which the restitution process is taking place. These are all factors that a court more disposed towards filling doctrinal gaps by resort to policy reasoning might have seen fit to mention. That the LCC does not mention these factors is a function of the relative weight accorded by South African professional legal culture to deductive reasoning vis-à-vis policy reasoning. The influence of South African legal culture is also evident in the LCC’s decision in the Richtersveld case, although here it is apparent that a formalistic mode of reasoning was used to justify an outcome that appears to have been motivated by policy considerations. As noted earlier, the issue of the recognition of the doctrine of aboriginal title in South Africa is a high- ly controversial one, since the recognition of this doctrine would call into question the validity of a great many title deeds. Rather than confronting this policy question head on, the LCC in the Richtersveld case deploys a highly formalistic argument around the question of the recog- nition of aboriginal title to decide the case against the claimant community. In this instance, the culture of legal formalism is less a straightjacket from which the Court is unable to escape, than a convenient disguise for the policy choice the Court feels unable openly to articulate. The situation confronting the Court in the Conradie and Klaasen cases was somewhat dif- ferent. It will be recalled that the legislative history leading up to the enactment of the ESTA was one in which a late change had been made to a fundamental principle underlying the statute, namely whether to treat women and children living on commercial farms as protected occupiers in their own right, or as secondary occupiers with special protection. In the nature of 128 Macleantown (note 26 above) 1276I-J. 129 Ibid 1276G. last-minute amendments, the conversion of the statute to one based on the former principle was not perfectly realised by the legislative drafter, leaving a number of textual traces of the latter principle at the level of rule formulation. It is these textual traces to which the Court referred in the Klaasen judgment, after having initially upheld the occupiers-in-their-own-right principle in Conradie. Of particular interest here is the Court’s about-face on the question whether a female farm worker, who is herself employed by the farmer, is an occupier in her own right. In Conradie these were the precise facts that presented themselves for decision, and the Court seemingly had little trouble in deciding that the principle underpinning the ESTA was that each person should be treated as an occupier in his or her own right, and accordingly that a woman could not be evicted merely in consequence of her husband’s actions. This of course produced an anomaly in that the husband, although in principle liable to eviction, could not in fact be evicted because his wife’s right to family life provided an alternative legal basis on which he could remain on the farm. In Klaasen, the Court, whilst acknowledging the Conradie situation as an exception to the general rule,130 later refers to exactly this situation as an example of one of the ‘incongruities’ that follows from reading the ESTA as being based on the principle that family members of an occupier are occupiers in their own right.131 In particular, the incongruity is said to consist in the fact that, if family members are recognised as occupiers in their own right, they ‘will be allowed to remain on the farm, and as part of their right to family life, they will be allowed to bring the evicted farm labourer back to live with them’.132 Instead of confronting this incon- gruity head on by weighing the competing interests involved, the LCC resorts to the legal for- malist mantra that ‘[t]his could never have been the intention of the legislature.’133 But of course it was, at least to the extent that the legislature could be said to have applied it mind in advance to this particular situation. In Conradie, by contrast, when confronted by the ‘incongruous’ result produced by the occu- piers-in-their-own right principle, the Court simply states that the landowner will have to seek ‘other remedies in respect of [the husband’s] misbehaviour’.134 What is going on here? Is the difference in outcome simply a function of the fact that the Conradie and Klaasen judgments were handed down by different judges, one of whom may be more ideologically predisposed to the kind of social transformation envisaged by the ESTA than the other? Or was it because the facts in Conradie (where the husband was clearly prone to violence) drove the Court to articu- late a broad equitable principle that it later regretted? It seems to me that the two judgments are best explained by the fact that the last-minute amendments to the ESTA effected an imper- fect conversion of that statute at the level of detailed rules from a statute based on the princi- ple of primary and secondary occupiers to one based on the occupiers-in-their-own-right prin- ciple. When confronted by the resultant contradiction at the level of detailed rules, what the Court in Klaasen did was to fall back on the organising principle that most closely resembled the principle that had always been applied at common law, namely that the spouse and depen- dants of a male occupier should be treated as secondary occupiers. The fact that this choice of principle exposed women and children living on commercial farms to eviction through no fault of their own was a consequence that lay outside the Court’s field of reference. Why? Because Performance of the SA Land Claims Court 221 130 Klaasen (note 71 above) para 24. 131 Ibid para 32. 132 Ibid. 133 Ibid. 134 Conradie (note 67 above) para 21(vii). 2 2 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E consequentialist, policy-based reasoning was a form of reasoning with which the Court was not particularly comfortable. To have adopted the occupiers-in-their-own-right principle would have required the Court to expose itself to the possibility of having to legislate afresh each time a case came before it in which the contradiction produced an anomaly. Far better for the Court to adopt the secondary-occupiers principle since that principle came ready-to-use with a set of accepted common-law rules. Once again, it would seem, the prevailing professional legal cul- ture in South Africa provides an adequate explanation for the poor, pro-poor performance of the Court. The three areas of law discussed thus far represent three different types of legal indetermi- nacy that the LCC resolved in ways that obviated the need to engage in policy reasoning. In Macleantown, the Restitution Act was silent as to the role of the Court in supervising settle- ment agreements, and the Court filled the gap with a rule that it purported to deduce from the language of the statute, but which was in actual fact a rule of its own making. In the Richtersveld case, faced with the awkward uncertainty in the Restitution Act as to what to do about aboriginal title claims, the Court made a policy choice and then disguised this choice by resort to formalistic reasoning. And in Klaasen, as we have just seen, the Court decided between two competing principles by choosing the one that most closely resembled the principle appli- cable at common law. The Serole case produced a fourth type of legal indeterminacy that the LCC dealt with in much the same way. In this case, it will be recalled, the Court was asked to vindicate one of two competing rights: the landowner’s property right in a patch of ground, and the occupiers’ right to freedom of religion and culture. As Ngoepe JP’s minority judgment in the Buhrmann case shows, there was really no way of deciding this issue other than to declare the contradiction, and to seek a principled and policy-based justification for choosing one right in preference to the other. Instead what the LCC (together with the Full Bench of the TPD and the Supreme Court of Appeal) did was to eschew a potentially radical in effect, but textually supported, interpretation of the ESTA (as conferring real rights on occupiers), so as to bolster the landown- er’s property right at the expense of the occupiers’ right to freedom of religion and culture. Once again, the mantra of the cautious judge – that the legislature could not have intended to alter the common law to the extent suggested135 – is used to close the doctrinal gap and justi- fy the rule-choice without resort to policy reasoning. And once again, what looks at first blush like an outcome motivated purely by conservative judicial politics, is really an outcome influ- enced by the prevailing professional legal culture. (B) OTHER INSTITUTIONAL INDICATORS The theoretical model tested in this article posits two other institutional indicators that may condition the social transformation performance of courts: the influence of the common law, and judges’ desire for professional respect. Both of these indicators have, however, already been subsumed under the influence of professional legal culture as defined. In a culture dominated by legal formalism, the influence of the common law is registered as a source of ready-made legal rules on which the cautious judge may rely in order to fill doctrinal gaps, without engag- ing in policy reasoning. Confronted by a situation of legal indeterminacy when interpreting a 135 Serole (note 81 above) para 16 (holding that the right to establish a grave is ‘not the kind of right which the legislature intended to grant to occupiers’). social transformation statute, the cautious judge, rather than justifying his or her decision on policy grounds, does one of two things: either he or she alludes to the ambiguity and fills it with a pre-existing legal rule drawn from the common law, or the judge makes the ambiguity disap- pear by straining the language of the statute to produce a gap-filling rule. The common law, in other words, exerts an influence on the social transformation performance of courts in a legal formalist culture by providing a fallback source of legal rules in cases of legal indeterminacy. Since the statute being applied is by definition a statute that attempts to transform the existing social order by transforming the rules that regulate it, the result is almost always a ‘conserva- tive’ result, in the sense that the existing social and legal order remains unchanged. But this does not necessarily mean that the judges who are responsible for such results are themselves con- servative, or that the results are attributable in some mechanistic way to the influence of con- servative judicial politics. The influence of the judges’ natural desire for professional respect has also already been accommodated in the concept of professional legal culture used here. It is precisely because the judges of the LCC want to be recognised as professionally competent that they are susceptible to the influence of professional legal culture. The fact that the judges of the LCC were not drawn from the ranks of practising advocates or sitting judges only exacerbates this situation, since the absence of prior approval from their peers provides all the more reason for the judges to want to establish their professional credentials. This influence emerges clearly in the highly technical decision in Macleantown, which probably had a lot to do with the LCC’s desire to establish its credibility in its first decision. The same desire for professional respect might explain the Court’s reluctance to depart from established forms of civil procedure in relation to the citation of spouses and dependants in actions for ejectment under the ESTA. In the other cases, the desire for professional respect is less obviously present, but exerts an indirect influ- ence in the manner just described, ie as a necessary condition for the influence exerted by the prevailing professional legal culture. V Conclusion This article has sought to test a theoretical model of the role of courts in social transformation through examining the performance of the South African Land Claims Court in four areas of law. The LCC was chosen for analysis because it provided an opportunity to eliminate some of the variables that typically condition the performance of courts in this context. If the model is sound, the elimination of non-relevant variables should not affect the capacity of the model to explain the observed phenomenon. In this case, however, the further problem is that the observed phenomenon – the record of the LCC in the four areas chosen for analysis – is in the nature of a sub-atomic particle that cannot be measured without distorting the result. In order to guard against this danger, the methodology pursued in this article has been to lower the stan- dard of persuasion that is ordinarily required in acts of legal interpretation. Rather than argu- ing that the cases studied here were wrongly decided, this article has argued that they ignored or rejected pro-poor legal arguments that could have been used to justify an alternative out- come. In some cases, independent evidence of the existence of pro-poor legal arguments is found in the form of minority or appellate judgments. In others, the legislature’s response to decisions of the LCC is used to crosscheck its performance in the weak political sense. Having made out the case for the poor, pro-poor performance of the LCC in this way, this article set out to explain that performance in terms of the indicators suggested by the model. Performance of the SA Land Claims Court 223 2 2 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E For various reasons, all but the so-called ‘institutional indicators’ were capable of elimination, and the main institutional indicator – the influence of professional legal culture – was defined in such a way as to incorporate the other two (the influence of the common law and the judges’ desire for professional respect). Although there is some difference in emphasis, the literature on South African legal culture in the narrow sense portrays that culture as predominantly legal for- malist in character. Legal formalism was defined as a tendency at a discursive level to assume or pretend that legal rules are capable of producing determinate outcomes in every case, with- out resort to policy reasoning. This being so, the theoretical model suggested that the judgments studied here should be explicable as instances in which the LCC’s allegiance to the discursive methods and professional standards of legal formalism outweighed any ideological predisposi- tion it might have had to decide the cases differently. Conversely, in the event that the judges’ private political views are adduced as possible explanations of the outcomes in these cases, adherence to legal formalism should be capable of providing an adequate alternative explana- tion. Tested in this way, the theoretical model survived contradiction. In all four areas of law examined here the anti-poor outcomes were adequately explained in terms of the LCC’s resort to quasi-deductive reasoning when faced by doctrinal gaps in the rules relevant to the decision. In the Macleantown case the gap consisted in the legislature’s failure to regulate the precise function of the Court in enforcing settlement agreements under the Restitution Act. In the Richtersveld case, the gap took the form of a crucial ambiguity surrounding the application of the Restitution Act to claims based on the doctrine of aboriginal title. In the remaining two areas, the doctrinal gap was produced by competing principles (Conradie and Klaasen) and contradictory rights (Serole). In every case, rather than filling the gap by reasoning on the basis of principle or policy, the LCC attempted to fill it by quasi-deductive methods typical of the cul- ture of legal formalism in which it is operating. This result confirms the soundness of the theoretical model to this extent. At the same time it provides an insight into the way in which South African professional legal culture continues to exert a restraining influence on the capacity of courts to be used as agents of social trans- formation. If there is a single, ironic lesson to be learned from this study, it is that the same methods that were used under apartheid to turn the courts into agents of that malevolent pol- icy – the use of detailed prescriptive rules – might have to be used to ensure that the courts play an effective role in democratic social transformation. Of course, this recommendation itself places too much legal formalist faith in the capacity of rules to produce determinate results. Until such time as South African professional legal culture has changed from one dominated by a ‘formal vision’ of law to one dominated by a ‘substantive vision’,136 however, there appears to be little alternative. 136 Cockrell (note 113 above) 35. On Social and Economic Justice in South Africa Today: A Theological Perspective on Theoretical Paradigms D J S M I T Department of Systematic Theology and Ecclesiology, Stellenbosch University I Introduction The present research project is developed around two hypotheses about social and economic transformation in South Africa. The first is that theory matters, that theoretical frameworks and paradigms have an influence upon the developments taking place within and around them, more specifically, that prevailing and dominant theoretical paradigms concerning social and economic justice in South Africa today have an influence on the implementation of policy, leg- islation and general transformation. The second is that theoretical drag may be partly respon- sible for slower delivery on social and economic justice than the Constitution promises, more specifically, that the theoretical framework in which present transformations have to take place fails in many ways to support the necessary implementation, thereby frustrating rather than facilitating social and economic justice. Christian theology – probably similar to law and economy – does not speak with one voice. Historically, the dominant theological traditions – including the Orthodox, Catholic, and Protestant traditions – have developed different views concerning ethical approaches. This also applies to theories of justice. Even within these traditions themselves – for example Pro- testantism, or even more specifically the Reformed faith – different approaches complement and often contradict one another. There is no single authoritative theological position regarding the- ories and practices of social, economic or legal justice. All claims are therefore modest and con- textual, and reflect specific traditions, experiences and perspectives. The following comments are accordingly also made from a specific perspective, namely that of Protestant and ecumeni- cal developments during the last century, particularly associated with the confessional tradition of Barmen and experiences of resistance against injustices in Germany, Latin America and apartheid-South Africa.1 1 For the confessional tradition of Barmen, including theological understandings of the notion of justice from the so-called Confessional Church Struggle in Germany, see K Barth Texte zur Barmer Theologischen Erklärung (1984), A Burgsmüller and R Weth (eds) Die Barmer Theologische Erklärung: Einführung und Dokumentation (1983), and E Busch Die Barmer Thesen 1934 - 2004 (2004). For a helpful discussion of the reception of the notion of ‘the preferential option for the poor’ from Latin American church struggles for social and economic justice in ecumenical documents, see H Bedford-Strohm Vorrang für die Armen: auf dem Weg zu einer theologischen Theorie der Gerechtigkeit (1993). For the church struggle against the the- ology of apartheid and specifically the historical context and thrust of the Confession of Belhar, see GD Cloete and DJ Smit A Moment of Truth: The Confession of the Dutch Reformed Mission Church (1984). 2 2 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E From this specific theological perspective, the two hypotheses seem very plausible, and some of their implications are of direct importance to theology and the church. To put it in theological- ethical and ecclesiological language, it seems possible to argue, firstly, that the way the public opinion thinks and speaks about justice will have a definite impact on any possible structural implementation of social and economic justice (‘theory matters’), and secondly, that many of the processes needed to implement more social and economic justice in South Africa today may be hindered by the way the public opinion thinks and speaks about justice (‘theoretical drag’). Therefore, changing the way the South African public opinion thinks and speaks about justice – the prevailing and dominant theoretical framework – may contribute toward overcoming the present theoretical drag and the slow pace of implementing social and economic justice. Given the nature and the calling of the Christian church, as seen from this specific theological perspec- tive, together with the social position and role of the church in the South African society today, it may be argued that the church should and could make a meaningful contribution in this regard. The following paragraphs will develop these general claims somewhat more fully. II ‘Theory Matters’ From this specific theological perspective, it is of crucial importance to affirm an intimate rela- tionship between justice (that is, legal justice, but also political, economic and social justice) and ethics (and therefore morality, and theology). Where total separation between law and ethics has historically developed (particularly in Western modernity’s separation of legality and moral- ity, especially since Kant), this development is regarded as one-sided and suspect, from this the- ological viewpoint. Such varieties of separation would include diverse forms of legal positivism, but also different theoretical claims to exclude moral and ethical discourses from economic and political rationalities.2 Some of the important reasons for affirming such a relationship between law and ethics are given both with the nature and content of the Christian faith, as well as with historical experi- ences of large-scale injustices. Such historical experiences include the failure of twentieth-cen- tury legal systems and political and economic rationalities to deal adequately with the social injustices they faced. From this specific theological perspective, however, this relationship between law and ethics is not and should not be construed as one of identity, for example by subsuming the one in the other. Instead, it is regarded as of crucial importance to distinguish between legal, moral, ethi- cal and therefore theological discourses.3 All forms of identification between law and ethics that have historically developed, including all (theological, philosophical and legal) theories of nat- 2 For an extensive theological critique of these forms of separation, see W Huber Gerechtigkeit und Recht: Grundlinien Christlicher Rechtsethik (1996). For a related but philosophical treatment, see many of the later works of Jürgen Habermas, including for example his article ‘Vom pragmatischen, ethischen und moralischen Gebrauch der praktischen Vernunft’ in J Habermas Erläuterungen zur Diskursethik (1991) at 100-118; J Habermas Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratis- chen Rechtsstaats (1992). 3 For different ways of maintaining such distinctions, see eg J Habermas Erläuterungen zur Diskursethik (1991); N Luhmann Ausdifferenzierung des Rechts: Beiträge zur Rechtssoziologie und Rechtstheorie (1981); W Huber Gerechtigkeit und Recht (1996); as well as the influential work of the systematic theolo- gian also working within this Reformed tradition, M Welker ‘Moral, Recht und Ethos in evangelisch-theol- ogischer Sicht’ in W Härle and R Preul (eds) Ethik und Recht (2002) at 67-82. ural law, are seen as deeply problematic and even dangerous, since they can easily lead to ide- ological misuse. Any form of moralising of the law, politics or the economy is rejected. This theological perspective, therefore, will show affinity with theoretical paradigms and the- ories of justice that seek ways between positivism on the one hand and natural law on the other hand, respectively making absolute claims for what is on the one hand and for what should be on the other hand. What could the contribution be of such a ‘critical theology of law’?4 Broadly speaking, it will seek to contribute both loyalty to, as well as criticism and reform of the existing legal, political and economic systems. It will both strongly support the existing justice and, wherever and whenever it is regarded as necessary, plead and work for better and more justice. Both these approaches – loyalty and criticism – are deeply embedded in the Biblical and Christian tradi- tions, for example with its well-known command to obey all authority, yet if necessary to obey God more than any form of human authority. This obviously raises many questions, including questions concerning the theory of justice involved. When should loyalty become criticism and reform? What would be the theological norm? Which criteria of justice are used to discern between moments of loyalty and moments of criticism, between conditions calling for support and conditions calling for renewal and even resistance?5 Is there – to put it differently – a specifically theological theory of justice?6 Theological Perspective on Theoretical Paradigms 227 4 This is for example the way that Huber characterises his own approach, see Huber (note 2 above) at 17, 26-27, 97-106. He explains: ‘Die erste christlicher Rechtsethik war deshalb nicht nur eine Ethik der Rechtsloyalität, … sondern sie war zugleich eine Ethik des zivilen Ungehorsams: ‘Man muss Gott mehr gehorchen als den Menschen’. Damit ist dem christlichen Nachdenken über das Recht eine kritischer Impuls mitgegeben, der freilich in der Geschichte des Christentums allzu häufig verdrängt wurde. Eine theologische Beschäftigung mit dem Recht die jene Anfänge nicht verdrängt, kann nur die Gestalt einer kritischen Theologie des Rechts annehmen. Gerade so kann sie zu einer kritischen Theorie des Rechts beitragen. … Damit ist auch die bestimmende Frage dieses Buches genannt. Es lässt sich von folgender Überzeugung leiten: Eine Rekonstruktion der Sphäre des Rechts muss bei der Situation derer beginnen, die unter den spez- ifisch modernen Formen der Rechtlosigkeit leiden. Nicht das Stöhnen der Wohlhabenden unter der Verrechtlichung der Industriegesellschaft, sondern das Leiden der Unterdrückten und Entrechteten unter Ungerechtigkeit steht am Anfang. Eine kritische Theologie des Rechts beginnt mit den Ausgeschlossenen und Eingesperrten, die politischer Willkür ausgeliefert sind. Sie beginnt mit denen, die sich in ihrem eigenen Land nicht mehr zu Hause wissen und in der Fremde Asyl suchen. Sie beginnt mit den Diskriminierten, die unter einer rassistischen Gewaltherrschaft leben müssen. Sie beginnt mit den Opfern schneller wirtschaftlicher Entwicklung, die sich häufig mit einer autoritären Staatsordnung verbindet. Sie beginnt mit dem Blick auf Menschen, denen in ideologisch beherrschten Ländern das Recht der Meinungsfreiheit geraubt wird. Sie beginnt mit der Perspektive von Frauen, denen in männlich bestimmten Gesellschaften Selbstverwirklichung und Gleichheit vorenthalten werden. Sie beginnt mit denen, die in reichen Industriestaaten dem Modernisierungsprozess weichen müssen und in die Arbeitslosigkeit gedrängt werden. Für sie alle hat das Recht nur Bedeutung, wenn es in den Dienst der Gerechtigkeit tritt, auf die sie hoffen. Wenn dies die bestimmende Perspective auf das Recht ist, wird es freilich unmöglich, Recht und Ethik – die Frage nach dem, was gilt, und die Frage nach dem, was gut ist – voneinander zu trennen. Eben diese Trennung aber bildete einen entscheidenden Schritt in der Ausbildung des neuzeitlichen Rechtsverständnisses. Müssen wir dieses Rechtsverständnis hinter uns lassen? Stehen wir vor einem Epochenwechsel?’ – This then becomes the leading question of his extensive historical and systematic reflections. 5 In a recent key collection of essays edited by P Dabrock et al Kriterien der Gerechtigkeit: Festschrift für Christofer Frey zum 65. Geburtstag (2003), published in honour of the German ethicist Christofer Frey, three theological approaches to justice are for example discussed. A first section on the foundations of justice (Begründungen) offers firstly Old and New Testament perspectives on justice, followed by discussions on jus- tice in the writings of Martin Luther and in evangelical ethics, amongst others. An important contribution by the ethicist Johannes Fischer (‘Jenseits reiner Normativität: Skizze einer theologisch-ethischen Annäherung and die Gerechtigkeitsthematik’ in P Dabrock et al (eds) Kriterien der Gerechtigkeit (2003)) provides a synopsis of current theological-ethical theory on justice. A second (and the largest) section investigates how these various 2 2 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E For this specific perspective, theology does not claim to have its own (alternative) theory of jus- tice.7 Rather, it seeks to engage with existing theoretical frameworks by drawing on its own sources and resources. Drawing on these sources and resources, this theology hopes to con- tribute to some broad theoretical orientation concerning justice that could be helpful in for- mulating law, in evaluating law, and in evaluating the implementation of law. This theology would further support political and economic attempts to implement, practice and embody such forms of justice and join forces with those criticising and resisting failures to embody such forms of justice. In this respect theology can certainly play a role in the present research project. Firstly, both Old and New Testament records can offer valuable orientation and perspective; secondly, the Christian tradition of interpretation can provide instructive developments and case studies; and thirdly, recent and contemporary ecumenical discussions may help to discern critical issues and insights. Research into all three these fields of inquiry (biblical, historical, systematic) could play an important role in developing theology’s own voice and particular contribution.8 Some well-known examples from these, often conflicting histories of interpretation could suffice: understanding the nature and role of justice according to the complex and manifold New Testament traditions;9 understanding justice against the background of the Sermon on the Mount;10 understanding the relationship between justice and love, historically often falsely con- insights are to be applied in a number of social disciplines (Anwendungen), that is in ecological theory, in bio- genetics, in medicine, in just war theory, in matters of asylum seeking, in economy, labour and business, and in family studies. The third and final section (Vermittlungen) deals specifically with how these applications are to be communicated to the public, particularly through visual and audio media, through religious education and through the diaconate of the church – themes of special importance for this research project, which also involves questions of communication and the formation of public opinion. 6 The question whether there is something like a theological theory of justice is often acknowledged and dis- cussed as a very complex and controversial matter. This is demonstrated, for instance, in two successive studies by the respected North American ethicist Karen Lebacqz. In Six Theories of Justice: Perspectives from Philosophical and Theological Ethics (1986), she discusses various theological and philosophical views on justice. She compares influential positions such as John Stuart Mill’s utilitarianism, John Rawls’ contract theory and Robert Nozick’s ‘entitlement’ view with responses from Catholic, Protestant and Liberation per- spectives. She emphasises that different people mean different things by justice and that it is, therefore, an illusive concept – without one single theological solution or approach. In a subsequent collection, K Lebacqz Justice in an Unjust World: Foundations for a Christian Approach to Justice (1987), she attempts to for- mulate an own theory of justice by relating the righteousness of God to injustice in the world and she draws on Scripture to interpret such injustice. Again, she does not offer a comprehensive theological response to the question of justice. She subsequently uses concrete examples to demonstrate how ‘justice’ can be brought about ‘in an unjust world’. 7 For popular discussion of this theme from the perspective of Reformed ethics and proclamation, see DJ Smit ‘Reformed Ethics and Economic Justice’ (1996) 37 Nederduitse Gereformeerde Teologiese Tydskrif 438- 455; DJ Smit ‘Oor die Prediking van Regverdiging en Reg’ in BA Müller et al (eds) Riglyne vir Prediking oor Regverdiging en Reg. Woord teen die Lig III/3 (1993) 1-14; DJ Smit ‘Die Droom van Bybelse Geregtigheid’ (1985) 15 Scriptura 51-70. 8 Many theologians have done this and developed their own discussions of justice from a theological per- spective. See for example the classical study by E Brunner Gerechtigkeit: eine Lehre von den Grundgesetzen der Gesellschaftsordnung (1943), as well as the popular W Lienemann Gerechtigkeit (1995), an ethicist from Bern, Switzerland, writing an overview for ecumenical use. 9 See for example H Balz ‘Die Gerechtigkeit der Gerechtfertigten: eine neutestamentliche Skizze’ in P Dabrock et al (eds) Kriterien der Gerechtigkeit (2003) 45-61. 10 In many Christian theological circles, especially since the Enlightenment, the Sermon on the Mount has been a very popular extract or summary of the Biblical teaching and was often used as the only source for strued as exclusive of one another;11 understanding justice against the background of the legal traditions of the Old Testament, an area of research that recently led to major new and valuable insights;12 understanding the complex historical developments in which classical and Biblical the- ories of justice contradicted, but also complemented one another;13 understanding philosophical and legal developments in modernity, in which deliberately secular theories of justice were often developed in direct opposition to ecclesial, theological and often ethical perspectives; understand- ing conflicting theological theories of justice that build respectively on notions of creation, provi- dence, sin, anthropology and eschatology;14 and finally understanding recent ecumenical debates and struggles concerning justice, freedom, liberation, human rights and the dignity of creation.15 It is immediately obvious that such theological research will necessarily have to be inter-discipli- nary, involving scholars from different theological disciplines. What form could such theological contributions to some broad theoretical orientation con- cerning justice take? At the outset, at least six possible forms could perhaps be foreseen. Firstly, this specific theological perspective brings an eschatological (in philosophical terms: Theological Perspective on Theoretical Paradigms 229 Christian ethics. The interpretation of the Sermon on the Mount is, however, complicated and controver- sial, and so also its use in ethical questions. For a discussion see DJ Smit ‘Die Bergrede in die Geskiedenis’ in CW Burger et al (eds) Riglyne vir Prediking oor die Bergrede (1990) at 11-25; DJ Smit ‘Die bergrede en Christelike etiek’ in CW Burger et al (eds) Riglyne vir Prediking oor die Bergrede (1990) at 34-38. 11 A well-known example has been the influential work of the North-American Reformed theologian Reinhold Niebuhr. See for example the four very authoritative studies of his work by LB Gilkey On Niebuhr: A Theological Study (2001); CW Kegley Reinhold Niebuhr, His Religious, Social, and Political Thought (1984); HB Clark Serenity, Courage, and Wisdom: The Enduring Legacy of Reinhold Niebuhr (1994); RH Stone Reinhold Niebuhr: Prophet to Politicians (1981). See also the unpublished doctoral thesis of SM de Gruchy Not Liberation but Justice: An Analysis of Reinhold Niebuhr’s Understanding of Human Destiny in the Light of the Doctrine of the Atonement (1992) DTh thesis, University of the Western Cape, Bellville. 12 The German systematic theologian Michael Welker has written extensively on justice in the legal traditions of the Old Testament, often together with the widely known Old Testament scholars Jan Assmann and Bernhard Janowski. See the collection of essays in J Assmann et al Gerechtigkeit: Richten und Retten in der abendländischen Tradition und ihren altorientalischen Ursprüngen (1998); also M Welker ‘Dynamiken der Rechtsentwicklung in den biblischen Überlieferungen’ in A Aarnio (ed) Rechtsnorm und Rechtswirklichkeit: Festschrift f. Werner Krawietz zum 60. Geburtstag (1993) at 779-795. Another very influential theologian in this field is the Old Testament scholar Frank Crüsemann. See for example the seminal essay F Crüsemann ‘Jahwes Gerechtigkeit im Alten Testament’ (1976) 36 Evangelische Theologie 427-450, as well as the recent collection of essays in his Festschrift, published as C Hardmeier et al (eds) Freiheit und Recht: Festschrift für Frank Crüsemann zum 65. Geburtstag (2003). 13 A well-known example is the influence of Aristotle and the principle of suum quique, via Thomas Aquinas and scholasticism, in Christian theology. See for T Aquinas ‘Treatment of Justice’ in J Porter ‘The Virtue of Justice’ in SJ Pope (ed) The Ethics of Aquinas (2002); as well as the influential A MacIntyre Whose Justice? Which Rationality? (1988), who makes use of conflicting traditions of interpretation of this legacy in con- structing his own argument and position. 14 Both in more general theological discussions of justice, and in the ecumenical debates on the so-called the- ological basis for human rights, the traditional confessional preferences for some of these theological loci often played a determinative role, for example the central vision of the covenant in the World Alliance of Reformed Churches, the doctrine of justification in the Lutheran World Federation and traditions of moral anthropology for the Roman Catholic Bishops. 15 For a helpful overview of the development of ecumenical social thought during the twentieth century, see M Robra Ökumenische Sozialethik (1994); and for the state of the present discussion in the Ecumenical Movement on some of these themes, see U Duchrow ‘Justice’ in N Lossky et al (eds) Dictionary of the Ecumenical Movement (2002) at 627-630; E Weingärtner ‘Human Rights’ in N Lossky et al (eds) Dictionary of the Ecumenical Movement (2002) at 548-551; DJ Smit ‘Liberty/Freedom’ in N Lossky et al (eds) Dictionary of the Ecumenical Movement (2002) 685-688. 2 3 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E teleological) orientation to the discourse. It speaks a language of hope. It reminds everyone of justice not yet real and fulfilled. It thereby moves and inspires agents for justice, and it empow- ers those who suffer under present injustices not to surrender hope and not to accept their lot without struggle and resistance. It calls the church and all believers to keep praying, to long for this justice and to dream of this reign, and therefore to take all possible steps, small as they may be, in witnessing to this coming reality.16 Secondly, because of this eschatological orientation, it strengthens critical and self-critical thought. This theology encourages those involved in working for justice, particularly those in legal, political and economic spheres. It supports all those actors, including legal theorists, prac- titioners and activists, who seek to strengthen theoretical paradigms that will lead to legal, eco- nomic and social transformations and to practical policy implementations that will contribute to serve justice. From the perspective of the Christian faith, it reminds everyone to remain self- critical, to acknowledge that full justice will never be realized historically, and therefore to emphasise that even – and precisely – the best constitutions, laws and catalogues remain open to (self-) critical evaluation and improvement. Thirdly, based on the content of the Biblical traditions, particularly as they have come to be understood in certain twentieth-century contexts of historical injustice, this theological per- spective advocates a view of justice that takes the perspective of those who suffer under such injustices very seriously. Perhaps this is the most characteristic material contribution of the Biblical traditions concerning justice to any contemporary theory of justice. In South Africa, this perspective has, for example, been expressed in the third article of the Belhar Confession, where it is claimed that the Biblical God has been revealed as ‘in a special way the God of the destitute, the poor and the wronged,’17 and that this God calls the church to follow in this way.18 16 For an extended argument on the importance of seeing as first step in the process of ethical decision-mak- ing, also regarding issues of poverty, suffering and social justice, see DJ Smit ‘On Learning to See? A Reformed Perspective on the Church and the Poor’ in P Couture and BJ Miller-McLemore (eds) Suffering, Poverty, and HIV-AIDS (2003) at 55-70. The famous German systematic theologian Jürgen Moltmann has made a major impact on the discussion on justice and eschatology. Throughout his life he has been active- ly involved in human rights debates within ecumenical circles and he wrote extensively on this through the years. Already in his collection J Moltmann The Experiment Hope (1975), he published three articles on racism, human rights and human dignity. A decade later he wrote specifically on human dignity, as the title suggests: J Moltmann On Human Dignity: Political Theology and Ethics (1984). This volume was wholly dedicated to human rights, where he examined, amongst others, the ecumenical debate on human rights, the relationship between Christian faith and human rights, and the right to ‘meaningful work’. In his recent (and somewhat more popular) book J Moltmann God for a Secular Society: The Public Relevance of Theology (1999), he continues these reflections in a section on human rights (117-134), which includes top- ics such as ‘individual and social rights’, ‘economic rights and ecological obligations’ and ‘the world reli- gions in the forum of human rights.’ 17 The third article on justice reads as follows: ‘We believe that God has revealed himself as the One who wish- es to bring about justice and true peace among people; that in a world full of injustice and enmity He is in a special way the God of the destitute, the poor and the wronged and that He calls his Church to follow Him in this; that He brings justice to the oppressed and gives bread to the hungry; that He frees the pris- oner and restores sight to the blind; that He supports the downtrodden, protects the stranger, helps orphans and widows and blocks the path of the ungodly; that for Him pure and undefiled religion is to visit the orphans and the widows in their suffering; that He wishes to teach His people to do what is good and to seek the right; ‘That the Church must therefore stand by people in any form of suffering and need, which implies, among other things, that the Church must witness against and strive against any form of injustice, so that justice may roll down like waters, and righteousness like an ever-flowing stream; Fourthly, it is therefore to be expected that this theological perspective will show a special sensitivity for all those – individuals, groups and categories of people – who suffer forms of injustice, oppression, rejection, exclusion, violation or abuse. For this reason, the church sometimes, under specific historical circumstances, feels itself called to be a voice for the voiceless, a public conscience, an advocate for the oppressed, or a critical, prophetic chal- lenge to authorities and powers.19 Such claims do not imply that the church – in whichever form – has an alternative theory of justice, but only that its own message and the very rea- son for its existence, its faith, involves a calling to care for those who suffer injustices and to plea and act on their behalf. The involvement of the ecumenical church and theology today in issues of economic globalisation provides an instructive example.20 The church does not resist contemporary global transformations in any of their complex forms (whether cultural, political or economic), but is concerned with some of the disastrous effects of economic glob- alisation in its present form, especially the exclusion, marginalisation and triage of many, including many living in Africa today. In asking whether this form of economic life should not concern the faith of Christians – which is the way the major ecumenical bodies, like the World Alliance of Reformed Churches recently in Accra,21 are framing the question – they do not claim to have any alternative theory of economic justice. They do, however, remind everyone of the suffering of many, and of the injustice thereof, and appeal to everyone in positions of (legal, social, economic and political) responsibility and influence to take this suffering seriously. Fifthly, this theological perspective understandably shows a strong affinity for those theories Theological Perspective on Theoretical Paradigms 231 ‘That the Church as the possession of God must stand where He stands, namely against injustice and with the wronged; that in following Christ the Church must witness against all the powerful and privileged who selfishly seek their own interests and thus control and harm others. ‘Therefore, we reject any ideology which would legitimate forms of injustice and any doctrine which is unwilling to resist such an ideology in the name of the gospel’ (in GD Cloete and DJ Smit A Moment of Truth: The Confession of the Dutch Reformed Mission Church (1984) at 1-6). 18 For historical accounts, interpretations and theological reflections on the God-images at stake, see J Botha and P Naude Op Pad met Belhar: Goeie Nuus vir Gister, Vandag en Môre (1998); and the essays DJ Smit ‘Paradigms of Radical Grace’ in C Villa-Vicencio (ed) On reading Karl Barth in South Africa (1988); and DJ Smit ‘… in a special way the God of the destitute, the poor and the wronged…’ in GD Cloete and DJ Smit (eds) (note 17 above) 127-150. 19 Recent history demonstrates various instances where the church understands itself to be a voice for the voiceless. Three such examples are, for instance, the publication of the Dutch Reformed Church in Africa ‘Transition and Poverty’ (1990) 2/90 (Supplement) DRCA Action 1-25; the more recent docu- ment by the Southern African Catholic Church, Economic Justice in South Africa: A Pastoral Statement (1999), but also the very influential German document published jointly by the Evangelical and Catholic Churches, For a Future Founded on Solidarity and Justice: A Statement of the Evangelical Church in Germany and the German Bishops’ Conference on the Economic and Social Situation in Germany (1997). 20 The literature from the ecumenical church is already vast. For three recent contributions from people involved in the Beyers Naudé Centre, see HR Botman ‘Human Dignity and Economic Globalization’ in HR Botman and K Sporre (eds) Building a Human Rights Culture: South African and Swedish Perspectives (2003) at 20-34; M Haspel Protestantische Ethik vor der Herausforderung der Globalisierung (2004); DJ Smit ‘Theologische Ansätze für kirchliches Engagement in Fragen der Globalisierung - Reformierte Perspektiven aus dem Südlichen Afrika’ 2004 Ökumenische Rundschau 160-175. 21 See Covenanting for Justice in the Economy and the Earth, agreed by the General Council, World Alliance of Reformed Churches, 24th General Council, Accra, Ghana, July 30 – August 13, 2004, http://www.warc.org. 2 3 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E of justice in which the dignity of the human person is regarded as central.22 The inalienable worth and dignity of the human person is the boundary that may not be transgressed, the norm that may not be ignored, the ultimate criterion to apply to social, political and economic life together. Again, this is argued on inner-theological grounds, based on the content and thrust of the Biblical message – although it too has been very controversial within theological circles.23 Despite all these historical and even recent theological debates, however, it is fair to claim that 22 The impact of the German ethicist and bishop Wolfgang Huber on the theological debates on human dig- nity, human rights and justice cannot be overstated. He has become the leading theological figure in the field. He made several contributions regarding theological theories of justice, for example W Huber ‘Beten und Tun des Gerechten’ in W Huber and I Tödt (eds) Ethik im Ernstfall: Dietrich Bonhoeffers Stellung zu den Juden und ihre Aktualitat (1982) at 11-22; W Huber ‘Recht im Horizont der Liebe’ in Brandt et al (eds) Ein Richter, ein Bürger, ein Christ: Festschrift für Helmut Simon (1987) at 1045-1058; W Huber ‘Justice, Peace and the Integrity of Creation: A Challenge for Ecumenical Theology’ (1988) 24 Scriptura 1-16; W Huber ‘Menschenrechte - Christenrechte’ in Recht nach Gottes Wort: Menschenrechte und Grundrechte in Gesellschaft und Kirche (1989) at 82-100; W Huber Konflikt und Konsens: Studien zur Ethik der Verantwortung (1990); W Huber ‘Menschenrechte und biblisches Rechtsdenken: ein Versuch’ (1993) 2 Neukirchener Theologische Zeitschrift: Kirche und Israel 144-160; W Huber ‘Die Prediking oor Regverdigheid en Geregtigheid’ in CW Burger (note 10 above) at 15-24; W Huber ‘Gottesrecht und Menschenrechte in gesellschaftspolitischen Entwürfen’ (1995) 32 epd-Dokumentation 55-60; W Huber Rechtfertigung und Recht: über die christlichen Wurzeln der europäischen Rechtskultur (2001). In the process he often reflected on legal theory, law and German constitutional law; see for example W Huber ‘Das Grundgesetz und die Menschenrechte’ (1989) 33 Zeitschrift für Evangelische Ethik 82-85; W Huber ‘Die Menschenrechte und das Grundgesetz: theologische Überlegungen’ in M Pfeiffer (ed) Auftrag Grundgesetz: Wirklichkeit und Perspektiven (1989) at 190-213; W Huber ‘Recht als Beruf: Verantwortung für das Recht im Horizont der Gerechtigkeit’ in U Neumann and L Schulz (eds) Verantwortung in Recht und Moral: Referate der Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie (2000) at 39-55 (also published as W Huber ‘Recht als Beruf: Verantwortung für das Recht im Horizont der Gerechtigkeit’ in Limbach et al (eds) Ist der Rechtsstaat auch ein Gerechtigkeitsstaat? Interdisziplinäre Referatsreihe an der Universität Basel (2000) at 31-59). He dealt extensively with the notion of human dignity; see W Huber ‘Die Würde des Menschen ist antastbar: Anfragen aus der Sicht der christlichen Ethik’ (1990) 45 Universitas 852-861; W Huber ‘Menschenrechte/Menschenwürde’ in Theologische Realencyklopädie XXII (1992) at 577-602; W Huber Die tägliche Gewalt: Gegen die Ausverkauf der Menschenwürde (1993) (translated as W Huber Violence: The Unrelenting Assault on Human Dignity (1996)); W Huber ‘Menschenwürde? Gewalt und Intimität als Unterhaltung’ in W Wunden (ed) Öffentlichkeit und Kommunikationskultur (1994) at 181-199; W Huber ‘Lebenswert und Lebensrecht’ (1995) 31 epd-Dokumentation 51-56; W Huber ‘Die Würde des Menschen ist antastbar: Anfragen aus der Sicht der christlichen Ethik’ in S Abarbanell et al (eds) Fernsehzeit (1996) at 185-195; and he regularly published on human rights; see W Huber ‘Human Rights: A Concept and its History’ (1979) 124 Concilium 1-10; W Huber ‘Menschenrechte’ in Staatslexikon Bd. 3 (1987) at 1103-1118; W Huber ‘Menschenrechte’ in L Engel et al (eds) Hoffnung in der Krise: Dokumente einer christlichen Existenz in Südafrika zum 65. Geburtstag von Wolfram Kistner (1988) at 298-311. Together with HE Tödt he published an authoritative study called W Huber and HE Tödt Menschenrechte: Perspektiven einer menschlichen Welt (1977). He also contributed on specific themes, such as the right to protest, for example W Huber Protestantismus und Protest: zum Verhältnis von Ethik und Politik (1987) and the rights of nature, W Huber ‘Rights of Nature or Dignity of Nature?’ (1992) The Annual of the Society of Christian Ethics 43-61. These contributions culminated in his magnum opus, W Huber Gerechtigkeit und Recht (1996). 23 The very influential German theologian Karl Barth, for instance, placed human dignity central in his whole theology. See for example his well-known essay K Barth The Humanity of God (1967) in which he explained this autobiographically. For a fuller discussion of Barth’s views on justice within his approach to ethics, see DJ Smit ‘’... The Doing of the Little Righteousness’ - On Justice in Barth’s view of the Christian life’ in M Welker and C Jarvis (eds) Serving God with Our Minds: Festschrift for Wallace Alston (2004) at 120-145. For human dignity within theology, see also the collection of key essays in I Balderman et al (eds) Menschenwürde: JBTh 15 (2001). Another important collection is a special edition of the ecumenical jour- nal Una Sancta devoted wholly to human dignity: G Voss et al ‘Menschenwürde neu buchstabieren’ (2000) 55 Una Sancta - Zeitschrift für ökumenische Begegnung 97-176. contemporary ecumenical theology is in very strong agreement that the message of the gospel, the good news of the loving and gracious Triune God, affirms in all its aspects the importance, value and dignity of human beings.24 What is human dignity? Can it be defined or described? Is it possible to give material con- tent to the notion of human dignity? Recent and contemporary discussions – for example the debate in the European Convention on the inclusion or exclusion of human dignity in the European Constitution, and its possible material content, should it be included – have shown that this is not really fully possible, even in those circles where people are deeply committed to the notion and dedicated to serve and protect human dignity, to determine its content in any definite way. Still, it is possible to agree on certain characteristics, often defined negatively, for example in the Universal Declaration of Human Rights, suggesting that human beings deserve to be protected from fear and from want. Of course, these are very broad and general guide- lines, and their implementation will always remain open, dependent on concrete interpretations and realities, yet, they are not for that reason without importance and usefulness. From this theological perspective, it is indeed a very helpful guideline, to link human digni- ty to freedom from fear and freedom from want, and to search for means of common life, including economic life, that could contribute to protect human beings – very specific, concrete individuals and groups of human beings, under very specific and concrete conditions – from causes of fear and causes of want that could indeed be prevented. Sixthly, for that reason, contemporary ecumenical theology (after earlier hesitation) also strongly supports theoretical paradigms in which human rights, as the concrete embodiment of the inalienable human dignity, are central.25 This is not a strong claim. It does not claim, for example, that human rights can be based on or deduced from Scripture, or that human rights Theological Perspective on Theoretical Paradigms 233 24 For a popular statement of this conviction, see DJ Smit ‘Oor die God wat Ons Roep’ in Handelinge van die NGK in SA (Wes- en Suid-Kaapland) (2003) at H99-H103. See also various publications from the ecu- menical church, for instance AO Miller (ed) A Christian Declaration on Human Rights: Theological Studies of the World Alliance of Reformed Churches (1977); as well as the special edition of the journal Reformed World on ‘Theology and Human Rights’ with contributions by AD Falconer ‘Pressing the Claims: Reflections in the Theological Basis of Human Rights’ (1998) 48 Reformed World 50-62, J Schaeffer ‘WARC’s Historic Commitments to Justice and Human Rights’ (1998) 48 Reformed World 63-78, and C John ‘Human Rights and the Churches: The New Challenges’ (1998) 48 Reformed World 79-96; see also the earlier, but popular statement by the Reformed Ecumenical Council RES Testimony on Human Rights (1983). 25 See for instance the study by the influential ethicist M Honecker Das Recht des Menschen: Einführung in die evangelische Sozialethik (1978). An important collection (with contributions by Claus Westermann, Ulrich Luck, Martin Brecht and Jörg Baur) is J Baur (ed) Zum Thema Menschenrechte: theologische Versuche und Entwürfe (1977). For a recent collection of essays on the theological reflection on human rights, see for instance L Gearon Human Rights & Religion: A Reader (2002). This reader includes a valu- able introduction by Gearon and offers various positions on the relationship between religion (including different religions) and international human rights, with case studies from various regions throughout the world. The point of the reader is to show not only how human rights discourses contribute to individuals’ and groups’ rights to religious freedom, but also to demonstrate how different religions view the importance of human rights as such. Included is also a contribution by the South African theologian C Villa-Vicencio ‘Theology and Human Rights’ in L Gearon (ed) Human Rights & Religion (2002) at 98-119, where he specifically attempts to bridge the historical divide between individual and socio-economic rights via theol- ogy and the central theological affirmation of the worth and dignity of being human. In the closing essay (C Wellman ‘The Proliferation of Rights: Moral Progress or Empty Rhetoric?’ in L Gearon (ed) Human Rights & Religion (2002) at 368-388) the complex and, perhaps, troubled relationship between first, sec- ond and third generation rights is discussed. Apart from Villa-Vicencio’s work, another South African ethi- cist who contributed to human rights debates over many years is Danie du Toit; see D du Toit (ed) Menseregte: Opstelle (1984); D du Toit Die Mens en sy Regte: Geloof en Praktyk in Suid-Afrika (1988). 2 3 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E developed historically as a direct product of the Christian tradition, or that human rights rep- resent a universal value system that other traditions and cultures must merely accept in its pres- ent form. It is simply the modest claim that in their complex and controversial inter-relation- ships and in their openness for continuous improvement and criticism, contemporary human rights provide ‘perspectives of a human world’,26 with very strong analogies to central convic- tions of the Christian faith. This is also true of South Africa, and part of the reasons why churches and the local ecumenical church enthusiastically claim the Constitution and the Bill of Rights, and often eagerly monitor real or potential human rights violations. This is in fact the reason why churches could be expected to show a particular interest in implementing the so- called social and economic rights, whether as already formulated in the Constitution, or per- haps in even stronger form as well. It would therefore – at least from this theological perspective – be totally consistent with the faith, confession and theology of the Christian church if the South African ecumenical church, denominations and congregations, including church leaders and individual believers, would show very strong commitment to support the increased implementation of these social and economic rights, and would be very concerned with slow social transformation and delivery. To the extent that the South African church – understood in this comprehensive way – is not eagerly involved in supporting such implementation and does not contribute to the formation of public opinion and thereby practical policies in this direction, this would indeed be inconsistent with the faith, confession and theology of the church, and would raise the question of ‘theoretical drag’. III ‘Theoretical Drag’ Theoretical drag may be partly responsible for slow implementation of social and economic jus- tice in different ways and for different reasons. Popularly speaking, at least two major ways may be distinguished. On the one hand, the embodiment of social and economic justice in the form of laws and policies may be slow to follow public expectation and opinion. This happens for very understandable reasons. One of the strengths of modern legal systems is their reliability. The law is slow to change because it is intended to serve security of expectations, Rechtssicherheit.27 What is legal today should not be illegal tomorrow. The law can therefore not be changed arbitrarily, but tends to be conservative. Accordingly, laws carry the imprints of their origins and history, and they are often slow to respond to new challenges and problems, creating a certain ‘time-lag’. …Das durch die moralischen Vorstellungen, Herrschaftsformen und Macht- verhältnisse seiner Entstehungszeit geformte Recht gilt aber oft für lange Zeit; seine Beständigkeit soll ja gerade Verläßlichkeit und Rechtssicherheit verbürgen. Gegenüber neuen Problemlagen ist das Recht deshalb oft ungleichzeitig; wenn neue 26 See for example the very helpful systematic reflections of W Huber and HE Tödt Menschenrechte: Perspektiven einer menschlichen Welt (note 22 above) written by two Lutheran ethicists, but without doubt still one of the most valuable theological contributions in the field. 27 See N Luhmann Ausdifferenzierung des Rechts (note 3 above); M Welker ‘Security of expectations’ (1986) 66 Journal of Religion 237-260. Michael Welker, a Reformed systematic theological from Heidelberg and one of the most respected voices in postmodern theology, made extensive use of Luhmann’s complex theo- ries on modern societies in his earlier work and combined that in very insightful ways with Old and New Testament perspectives on justice, law and morality. Lebensverhältnisse entstehen, wenn neue moralische Vorstellungen sich durchsetzen, wenn tradierte Herrschaftsformen und Machtverhältnisse in Frage gestellt werden, zeigt sich oft ein ‘time-lag’ des Rechts. Seine konservativer Charakter mindert seine Steuerungs- und Orientierungsleistung. Es wirkt lähmend, ja vielleicht sogar lebens- feindlich… .28 On the other hand, the embodiment of social and economic justice in the form of laws and poli- cies may be slow because public expectation and opinion is not yet ready for it. Again, this may happen for very understandable reasons. Another strength of modern legal systems is precisely its independence from any specific moral or ethical viewpoint. That is indeed the important ele- ment of truth in positivist theories of justice. The legal system in a pluralist society, like South Africa, should not be moralised or ideologically misused by any particular tradition or com- munity, but should rather enable diverse moral and religious traditions and communities to co- exist peacefully and fairly. These two seemingly opposing processes may therefore take place simultaneously in a specific society. The implementation of social and economic rights may be slow since it does not (yet) reflect the expectations of specific (also moral and religious) com- munities and traditions in society, and it may be slow since it (still) reflects the opinion of per- haps the majority of (also moral and religious) communities and traditions in the same society. Empirical research by others will have to ascertain and document whether these processes are indeed at work in South Africa today. To the extent that these time-lags are indeed present in the implementation of social and economic justice in South Africa, this kind of ecumenical (and Reformed) theology will certainly be deeply concerned. This theological perspective supports those theoretical positions that argue that human rights are not only implemented by legal means and therefore also argue against all those restrictive views which claim that only individual rights should be regarded as proper rights, since only they are presumably justifiable and enforceable. Rather, this theological viewpoint would claim that human rights are promoted, implemented and realised, firstly, by political means, secondly by legal means and thirdly by resistance.29 Accordingly, the political and social preconditions must also be created without which human rights could not be enjoyed, including many of the rights formulated in sections of the South African Constitution’s Bill of Rights under environment (24), property (25, for example on land reform), housing (26), health care, food, water and social secu- rity (27) children (28), education (29), language, culture, religion and life in community (30 and 31). From this theological perspective, the state indeed has the responsibility to respect and pro- tect, but also ‘to promote and fulfil’ these rights (Chapter 2, section 7(2), Constitution). Necessary social and economic measures must be implemented and initiatives in the formation of public opinion that prepare, claim and welcome such measures should be supported and strengthened. Under specific circumstances, theology may be concerned with all three ways of imple- menting human rights, including social and economic rights. Theology can, therefore, sup- port victims of violations seeking legal remedies, especially when other social institutions fail to act (the second means). Theology can, also, join others in forms of public resistance whenever human dignity is systematically violated (the third means). The recent South African history bears witness to both these forms of theological involvement. The ecumeni- Theological Perspective on Theoretical Paradigms 235 28 W Huber Gerechtigkeit und Recht (note 22 above) at 59. 29 For an authoritative discussion of the integral role of protest and resistance within the Protestant theology and tradition, see W Huber Protestantismus und Protest (note 22 above); see also W Huber Gerechtigkeit und Recht (note 22 above) at 400-419. 2 3 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E cal church has been deeply involved, both in helping victims of human rights violations, also by seeking legal support, as well as in civil disobedience (regarding specific laws seen as unjust) and public resistance of the apartheid system as such.30 Under normal circum- stances, however, theology is particularly concerned with the first means of implementation, namely the political – creating the political conditions, strengthening the political will, find- ing concrete political policies and decisions and supporting practical political measures and actions that will help to implement human rights. Through the formation of public opinion, political action that will provide the conditions necessary for freedom and for living lives of human dignity is made possible.31 Theology does this – contributing to the formation of public opinion – primarily by serving the church.32 The ideal of theology and theologians directly impacting on society and public opinion is an illusion, at least in contemporary South Africa.33 The church, however, is a com- plex institution, with many forms and activities, and with the ability to influence South African 30 During the time of apartheid, for instance, the ecumenical church in South Africa through the South African Council of Churches and the Southern African Catholic Bishops’ Conference made various studies and took part in many actions to address, challenge and overcome the human rights abuses in the country. See for example B Johanson (ed) Human Rights in South Africa (1974); as well as Human Rights and Repression in Southern Africa: The Apartheid Machine Grinds On (1989). 31 The Scottish ecumenical theologian Duncan Forrester has worked extensively on the subject of justice and public theology. For his views on the insights that Christian theology can provide for contemporary theo- ries of justice, see D Forrester Christian Justice and Public Policy (1997). Another very insightful essay on the origin and meaning of the term ‘public theology’ may be found in EH Breitenberg ‘To Tell the Truth: Will the Real Public Theology Please Stand Up?’ (2003) 23 Journal of the Society of Christian Ethics 55- 96. Breitenberg distinguishes public theology from civil religion (out of which it partially developed), polit- ical theology, public church, public philosophy and public (or social) ethics. Another important and chal- lenging study on the role of the church in public life is by the renowned social ethicist LL Rasmussen Moral Fragments and Moral Community: A Proposal for Church in Society (1993). Also in the context of South Africa, this debate may be followed with the valuable book by K Clements Learning to Speak: The Church’s Voice in Public Affairs (1995), as well as contributions by NN Koopman ‘Some Comments on Public Theology Today’ (2003) 117 Journal of Theology for Southern Africa 3-19, and KT August The Quest for Being Public Church (2003) DTh thesis, University of Stellenbosch, Stellenbosch. 32 In this regard the relationship between church and ethics becomes important, as has been acknowledged in much recent debate in the ecumenical movement. An important study by the World Council of Churches on ecclesiology and ethics ‘sought to explore the link between what the church is and what the church does. It explored the ethical dimension not as a separate “department” of the church’s life, but as integrally relat- ed to its worship, its confession of faith, its witness and service in the world’ (TF Best and M Robra ‘Introduction’ in TF Best and M Robra (eds) Ecclesiology and Ethics: Ecumenical Engagement, Moral Formation and The Nature of the Church (1997) at vii). On the many publications that have appeared on this important debate, see especially the work of the systematic theologian LS Mudge The Church as Moral Community: Ecclesiology and Ethics in Ecumenical Debate (1998), and the ethicist R Hütter Evangelische Ethik als kirchliches Zeugnis: Interpretationen zu Schlüsselfragen theologischer Ethik in der Gegenwart (1993). For a survey of the vast amount of work that the World Council of Churches has done on the church’s responsibility to be a moral community (that not only reflects on its ethical dimension but also par- takes in the search for justice in the world), see the influential study TF Best and M Robra (eds) Ecclesiology and Ethics: Ecumenical Engagement, Moral Formation and The Nature of the Church (1997). This work deals with the three groundbreaking documents, ‘Costly Unity’ (1993), ‘Costly Commitment’ (1994) and ‘Costly Obedience’ (1996) which paved the way towards a new approach to the relationship between eccle- siology and ethics, as well as further contributions by Duncan Forrester and Larry Rasmussen, already referred to in the previous note. 33 In South African scholarly circles the impact of theology on society and public opinion has often been dis- cussed; see for example BC Lategan ‘Taking the Third Public Seriously’ in JW de Gruchy and S Martin (eds) Religion and the Reconstruction of Civil Society (1995) at 217-230; DJ Smit ‘Oor die Kerk as ‘n Unieke Samelewingsverband’ (1996) 36 Tydskrif vir Geesteswetenskappe 119-129; DJ Smit ‘Oor die Unieke society in important ways.34 It may, therefore, indeed and in several practical ways contribute towards changing the dominant theoretical paradigm – which, in the form of present public opinion, is probably contributing to resist the implementation of social and economic justice, according to the hypotheses of this project. So-called public theology and the public church participate in the formation of public opinion – with all its practical consequences also for the implementation of social and eco- nomic justice. It does this in the full awareness of being only voices amongst many other voices, and without any special claims. Public theology includes social ethics, as well as the specialised so-called ethics of social institutions or different spheres of life in modern soci- eties.35 Public theology through the public church has different modes of discourse as well as a wide range of activities at its disposal. These modes of discourse include the wisdom discourses of research, study, dialogue, consultation and education. It includes the priestly discourses of service and engagement, for example breaking down hostility and helping to build trust and reconciliation.36 It also includes – according to many, but not all – prophet- ic discourses such as critical witness and advocacy, when judged necessary.37 The activities Theological Perspective on Theoretical Paradigms 237 Openbare Rol van die Kerk’ (1996) 36 Tydskrif vir Geesteswetenskappe 190-204; DJ Smit ‘Openbare Getuienis en Publieke Teologie Vandag?’ (2003) 82 Scriptura 39-48. 34 For more detailed analyses of the church’s impact on South African society, see for example DJ Smit ‘The Impact of the Church in South Africa after the Collapse of the Apartheid Regime’ in K Bediako et al (eds) A New Day Dawning: African Christians Living the Gospel (2004) at 128-149; DJ Smit ‘Oor die Kerk en Maatskaplike Uitdagings in Ons Land’ (2004) 45 Nederduitse Gereformeerde Teologiese Tydskrif 350-362. In the last article for example it is argued that the church takes on at least six different social forms, name- ly: the worshiping assembly; the local congregation as human community; denominational structures and institutions; diverse local, regional and national ecumenical forms; individual believers in the fullness of their life and activity; participation of believers in different organisations, initiatives and forms of civil soci- ety. It is argued that each of these forms potentially impacts on society. 35 For essays dealing from different perspectives with the complex ways of building a human rights culture, see the volume of conference papers Botman and Sporre (eds) Building a Human Rights Culture (note 20 above). 36 A very instructive recent study on practices of social reconciliation, including consideration of the potential contribution of religious communities, is available in SF du Toit Learning to Live Together: Practices of Social Reconciliation (2003). 37 The respected social ethicist James Gustafson, formerly from the University of Chicago, gave a lecture series in 1987-88 on four such modes of moral discourse, which was subsequently published as J Gustafson Varieties of Moral Discourse: Prophetic, Narrative, Ethical, and Policy (1988). The first form of moral dis- course, namely prophetic discourse, seeks to identify a moral evil in society and to raise awareness of the particular issue. It uses passionate language to criticise and confront existing power structures and offers ideal alternatives to the state of affairs. Narrative discourse tells paradigmatic stories that may reveal overt or hidden morals. Narrative tries, in a more subtle way than prophetic discourse, to persuade and inspire people and communities. On their own these two forms are, however, not sufficient. Moral discourse requires policy discourse, which rather asks what actions and transformation would in fact be possible (rather than simply desirable) within the given circumstances. Finally it also requires technical, ethical dis- course in the strict sense, which tries to analyse and clarify matters through conceptual distinctions. Gustafson’s typology initially remained limited to the ecumenical sphere (where it in fact originated after he made a thorough study of the ethical documentation of the World Council of Churches), but recently it has been taken up in the wider field of Christian ethics, such as the recent book by BV Brady The Moral Bond of Community: Justice and Discourse in Christian Morality (1998). This has also been introduced in South African Christian ethical circles – see for example DJ Smit and De Villiers ‘Hoe Christene in Suid-Afrika by Mekaar Verby Praat ... Oor Vier Morele Spreekwyses in die Suid-Afrikaanse Kerklike Konteks’ (1994) 15 Skrif en Kerk 228-247. 2 3 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E of the public church range from the worship of local congregations38 through the institu- tional work of denominations and ecumenical bodies to the initiatives of believers and vol- untary initiatives. The Beyers Naudé Center for Public Theology is dedicated to serve these purposes through such research, education and involvement, thereby hopefully contributing to more social and economic justice in South Africa today.39 38 For a discussion of the both constructive and destructive ways that Christian worship can contribute to social justice, see DJ Smit ‘On Learning to See’ in; DJ Smit ‘’Seeing Things Differently’ - On Prayer and Politics’ in L Holness and RK Wüstenberg (eds) Theology in Dialogue: The Impact of the Arts, Humanities, and Science on Contemporary Religious Thought: Essays in Honor of John W de Gruchy (2002) at 271- 284. 39 The Beyers Naude Centre for Public Theology is one of a growing number of public theology institutes in the ecumenical church (www.sun.ac.za/theology/bnc). Others may be found in Scotland (The Centre for Theology and Public Issues at the University of Edinburgh, http://www.div.ed.ac.uk/theologypubl.html), the United States (The Abraham Kuyper Center for Public Theology at Princeton Theological Seminary, http://www.ptsem.edu/grow/kuyper/; The Center for Business, Religion and Public Life at Pittsburgh Theological Seminary, http://www.pts.edu/busrel.html) and elsewhere. Beyond Labour Law’s Parochialism: A Re-envisioning of the Discourse of Redistribution* L U C Y A W I L L I A M S Professor of Law, Northeastern University School of Law, Boston I Introduction Left labour and welfare law constitute two primary fields of discourse about redistribution. However, each has traditionally seen itself as isolated, not only from one another but also from the critically related fields of immigration, family, and international law. The failure of each to engage with the other results in theoretical and political gaps that have contributed to both fields’ inability to envision redistribution strategies sufficient to measure up to the power and pervasiveness of the conservative/neo-liberal agenda. This essay seeks to draw threads between fields of inquiry and practice that progressives, especially labour and welfare lawyers, must understand as intimately linked. I argue that any progressive transformation of labour law requires intense engagement with welfare law. With notable exceptions, labour law still largely situates questions of power and income distribution within the framework of labour markets. Its perspective on work remains limited to wage labour. And it still privileges collective bargaining by unions within a nation-state as the pri- mary site of progressive initiatives for economic and social redistribution. These internalized ways of thinking guarantee that labour law will become increasingly stultified and marginal- ized as the new century progresses, and that labour lawyers will have steadily less to contribute to economic redistribution and social change. Likewise, progressive welfare lawyers have traditionally focused almost exclusively on cen- tral government transfers as the redistributive hub, failing to engage with and expose the state’s role in constructing labour markets. More recently, since the 1996 US ‘welfare reform’, dis- cussed below, progressive welfare lawyers have often focused on developing social services to help poor families ‘overcome barriers to employment,’ instead of challenging the structure of low-wage labour markets. Activists in both welfare and labour law, viewing their constituen- cies within nation-state boundaries, have not infrequently voiced protectionist rhetoric. Privileging nation-state waged work as the site for redistributional politics ignores and deval- ues the needs and concerns of millions of productive, low- and non-waged workers in the glob- alized economy. Likewise privileging government transfers as the primary site of redistribution, * This paper was originally published in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) at 93-114 and is reprinted here with kind permission of L Williams, J Conaghan, RM Fischl and K Klare and Oxford University Press. 2 4 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E counterintuitive as this might sound, contributes to the dominant discourse of a ‘free market’ by failing to expose the politically chosen, legally constructed labour market structures that reinforce income disparity. Left lawyers certainly do not intend their theoretical formulations and political stances to render disempowered populations invisible. But often, through lack of interdisciplinary and cross-border dialogue, we fail effectively to criticize our own positions and re-imagine broad-based redistributive political agendas. This chapter attempts to expose ways in which many left labour and welfare lawyers have unwittingly played into a discourse that reinforces the economic status quo by validating the economic structures creating poverty. The left’s default can be seen particularly in a failure fully to appreciate and expose the reinforcing links between three seemingly disparate legal-theoret- ic discourses that feed into the dominant political consensus on social policy. Together these dis- courses privilege and naturalize waged labour within a free market as the arena for productive participation in society, thereby justifying the assault on the welfare state. The first is the discourse of the public and private distinction. Mainstream legal thought, both conservative and liberal, conceives private law as arising more or less naturally, rather than being a contingent product of state policy. Within this understanding, private law, and the institutions it structures such as market and family, arise ‘prior to’ and independent of state power. This conceptual framework naturalizes the existing distribution of wealth and power in these social arenas, which then appear to have nothing to do with, and indeed, to require pro- tection from state intervention. In addition, it necessarily marginalizes welfare law and policy by portraying it as government ‘intervention’ into natural market outcomes and family arrange- ments. When welfare lawyers focus on government transfers, and when labour lawyers mar- ginalize welfare law as state intervention, both are contributing to the legitimization of the ‘free market.’ Similarly central within the dominant legal and policy framework, is the conception of a ‘worker’ as someone engaged in wage labour. Social protection laws connected to waged work frequently further narrow the meaning of ‘worker’ to those in full-time, high-wage, long-term jobs. This definition identifies as ‘non-workers’ and therefore excludes many individuals who are, in fact, active in waged work as well as the many who work but do not receive a wage. These definitions reinforce the socially constructed identities upon which mainstream discourse and political rhetoric are founded. By pursuing a traditional social welfare agenda1 primarily connected to an anachronistic image of the waged worker, and by distancing other members of society as ‘non-productive,’ labour contributes to the stigmatization of millions of low-waged and non-waged workers, including welfare recipients and immigrants. Finally, there is the notion of social citizenship, to which some progressive welfare and labour policy-makers have subscribed, often as a repository of democratic and egalitarian aspirations, without critically assessing the gender, racial, and economic biases of traditional citizenship dis- course. In addition, they typically view their fields within the boundaries of nation-state citi- zenship, without engaging with the current social reality of global economic integration or the 1 In the US, ‘welfare’ is commonly used to refer to Aid to Families with Dependent Children (AFDC), replaced in 1996 by Temporary Assistance to Needy Families (TANF). Throughout this chapter, I use the term ‘wel- fare’ to refer to social assistance programmes, the eligibility for which is means-tested, not conditioned on a requisite tie to waged work. I use the term ‘social welfare’ in a broader sense, to include both social assis- tance and social insurance programmes, in which eligibility is defined by a sufficient attachment to waged work. class, racial, and alienage implications of a citizenship paradigm that fails to incorporate a cross-border perspective. By failing critically to analyse our roles in perpetuating these discourses, left labour and wel- fare theoreticians have, albeit inadvertently, ceded discursive and political ground to the con- servative/neo-liberal consensus, contributing by default to the hegemonic discourses that por- tray the social status quo as natural. Through interdisciplinary and cross-national dialogue by and among progressives working in the fields of labour, welfare, immigration, and internation- al economic organization, we can strengthen our critiques, and better position ourselves to dis- rupt the ‘naturalness’ and self-fulfilling quality of dominant discourse. My particular focus is on the perceived lack of connection between labour and welfare law, primarily in a US and UK context. I then draw threads from labour and welfare to the areas of family, immigration, and international economic law. My hope is that by elucidating theoreti- cal and political gaps in and among these fields, we can develop a more sophisticated redis- tributive agenda – one that is multicultural and gender-sensitive, allowing, indeed encouraging, transformation of social roles, and one that incorporates a re-imagined, globalized conception of citizenship, attentive to racial and gender differences. Finally, it should be one that reclaims and re-legitimates redistribution, moving beyond the mere redistribution of income to facilitate the redistribution of power, resulting in self-actualization and active citizenship within the mar- ket, family, and political community. One (although only one) step toward developing the the- oretical tools needed to revitalize transformative politics is for labour lawyers and others thor- oughly to engage with the insights and innovations of modern welfare law. II The Legal Creation of Poverty Welfare law is premised upon and uniquely illuminates fundamental teachings of critical legal thought first developed, in the US, by the Legal Realists. The core insight is that all legal rules are contingent products of human choice that have distributive consequences. That is, legal rules affect the distribution of wealth and power, whether vertically among classes, horizontal- ly among races and genders, or internationally among regions, communities, and nation-states. For a century, traditional legal thinkers have engaged in intense ideological work to suppress or marginalize these insights. Left-legal theorists and practitioners have resisted this hegemonic view. But they have never fully appreciated the theoretical contributions of welfare law or its potential as a forum to expose the legal means by which poverty is perpetuated. By uncritical- ly accepting the mainstream view that welfare law takes market outcomes as its starting point, left-legal theory has implicitly validated the mainstream view that the background rules struc- turing market behaviour are not really acts of government. The dominant political discourse in Western nations, reinforced by our legal culture, teach- es that poverty arises naturally and that the legal system bears no responsibility for causing it. Private law concepts of family, tort, property, and freedom of contract are made to appear as the necessary and neutral framework of social and economic power relations, arising inde- pendently of law. The dominant political culture denies that these background rules privilege any group or have anything to do with allocating wealth or income. The role of law in distrib- uting property, valuing waged labour, and consequently devaluing family work, is almost always invisible. In fact, the stubborn persistence of poverty, in both developed and developing countries, largely results from political and legal decisions and institutions that generate and sustain a Re-Envisioning the Discourse of Redistribution 241 2 4 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E sharply unequal distribution of wealth and resources. Far from being natural or neutral, legal rules, norms, and practices play a central part in maintaining poverty by according privilege to and legitimating certain values, interests, and concerns over others. Legal precepts shape social roles by assigning power and responsibility in social relationships, whether within the family or in the workplace. For example, the everyday common sense of modern, democratic, political and legal cultures – that the family is a private haven from the public realms of market and government – ignores the intimate, indispensable, and legally constructed connections between these social spheres. As dis- cussed below, the production of goods and services for the market by paid workers depends on the subsidy of unpaid care-givers’ – predominantly women’s – labour. Similarly, family wealth and income could not exist without the full range of property rules entrenched by government. The rules that comprise freedom of contract, referring to rich and poor, male and female, and employ- er and employee as ‘equals’ because they formally share the power to contract, ratify steeply unequal access by individuals and families to the economic means of life-enjoyment. The state is not independent from other social structures. The state entrenches those structures. Nor is the existing array of background legal rules inevitable. Human actors, making implic- it or explicit moral and political decisions about who is and is not deserving of reward, create legal entitlements that reflect and enact distinct political values. All of the ways in which soci- ety sustains income inequality and poverty – whether through government programmes fund- ed by general taxation, market structures, familial responsibility, or private charity – reflect politically chosen regulatory policies. Welfare law, whose raison d’être is to question the existing distribution of wealth and in- come, provides a forum for exploding the neutrality of these background rules of entitlement. It is, therefore, at least potentially, a permanent threat within mainstream jurisprudence because it reveals the false pretense or illusion that the bedrock common law of property, market, and family is distributionally neutral and exists prior to and independent of governmental action. From a critical perspective, welfare discourse sees every legal artifact as crafted by officials in a given historical and institutional framework. Thus, welfare law persistently threatens to reveal the contingency and political character of all law. Mainstream politicians, at least subliminally alert to the Trojan-horse nature of welfare law and its potential to explode the most basic assumptions of the legal culture, periodically go to considerable lengths to suppress its critical aspect and to recast welfare law in a manner con- sistent with status quo assumptions. Just as labour law’s potentially radical implications for wealth and power distribution, even within the limited waged work sphere, were blunted by a functional reinterpretation of the discourse,2 so, too, have progressive ideas in welfare law needed to be domesticated or marginalized. Thus, mainstream policymakers and jurists face the intellectual challenge of creating a conception of welfare law that, while moderately re-distrib- utive, does not disrupt or delegitimate core institutions. To accomplish this goal, a modicum of procedural due process, and thus a perception of fun- damental fairness, was incorporated into welfare law.3 But this concession, important as it was, has been ultimately overwhelmed in significance by increasingly vitriolic debate about the wel- fare system’s very purpose. The normative foundations of welfare state theory are ideas about 2 K E Klare ‘Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform’(1988) 38 Catholic University L Rev at 1, ‘Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness’ (1978) 62 Minnesota LR at 1049. 3 See, eg, Goldberg v Kelly 397 US 254 (1970) and its progeny. equality and minimum material circumstances for a meaningful life-experience. Over the last twenty years, the ‘new’ welfare theory, legitimated and promoted by a policy consensus of con- servatives (for example, Thatcher and Reagan) and liberal/neo-liberals (for example, Blair and Clinton), has promoted different assumptions and commitments. One normative baseline of this strange alliance is a modernized version of the old ideal of liberty, meaning freedom from governmental interference. Advancing under the banner of the so-called ‘Washington Consensus’ and espousing the virtues of deregulation, limited govern- ment spending, and free trade, politicians in many Western nations4 have attacked and dis- mantled previously well-established welfare programmes. Most varieties of the neo-liberal tra- dition take the position that social provision is a sometime necessary evil to correct market fail- ures and imperfections, just as sometimes the state must ‘intervene’ in domestic matters because of family-breakdown.5 Many New Right theorists and politicians acknowledge the possibility of market failure in theory but doubt its existence in practice. Accordingly, social provision for them is simply an interference with the free market and has no legitimate purpose. But the var- ious wings coalesce around so-called free markets and the two-parent heterosexual family as the appropriate institutions for distributing wealth and power. In sum, the intellectual achievement (if one can call it that) of the conservative/neo-liberal ‘welfare reform’ consensus is to formulate social policy as an adjunct to private law. Questions of income, wealth, and power inequality – let alone redistribution – fade from the picture. Moreover, the consensus is also built on historical ambivalence over how much the poor are responsible for their own plight, resurfacing the causation issue with intensely pejorative rhet- oric. Welfare benefits, the consensus holds, generate pernicious social consequences, as well as inefficiencies, and must be eliminated because they foster a culture among the poor that does not reflect majoritarian values.6 This discourse attributes poverty to individual fault, charac- terized as a lack of the work ethic in the first world and a lack of acquaintance with or mas- tery of entrepreneurial values and skills in developing countries. The common assumption is that individual agency can always overcome cultural, societal, and economic obstacles. The argument continues that these individual character flaws are largely created and sustained by the institution of welfare. Thus it is argued, without a trace of irony, that because the welfare state creates dependency, welfare actually causes poverty rather than ameliorating it. Without state intervention, the free market would create the incentives for mainstream attitudes and behaviour, by which is meant those consistent with waged work and the patriarchal family. The rhetoric of individual responsibility and institutional dependency legitimates the inevitability of Re-Envisioning the Discourse of Redistribution 243 4 Of course, many European countries continue to maintain more expansive welfare states, including addi- tional family supports, albeit still retaining elements of gender bias as well as racist connotations in terms of immigration law and immigrant access to benefits. The role of social protection and labour in many Latin American, African, and Asian countries is, in many ways, even more complex. This chapter does not attempt to highlight and problematize the labour and social welfare debate throughout the world, but focuses rather on US/UK discourse, which currently forms the basis of discussion in many other countries, in part because of World Bank and International Monetary Fund structural austerity measures. 5 FE Olsen ‘The Myth of State Intervention in the Family’ (1985) 18 University of Michigan J of Law Reform 835 at 835. 6 For discussions of the history of welfare theory from various sub-movements of the right, see L Williams ‘Welfare Law and Legal Entitlements: The Social Roots of Poverty’ in D Kairys (ed) The Politics of Law: A Progressive Critique (1998) 569; L Williams Decades of Distortion: The Right’s 30-Year Assault on Welfare (1997); L Williams ‘The Ideology of Division: Behavior Modification Welfare Reform Proposals’ (1992) 102 Yale L J 719. 2 4 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E growing disparity in the distribution of wealth both within and between nation-states and underwrites the policy imperative of dismantling the welfare state. The hegemonic success of this rhetoric has led to a significant retrenchment in availability of and entitlement to social pro- tection benefits. Despite differences, mainstream political rhetoric about welfare, from moderate-liberal to the far right, have come to share a common thread in recent decades by subsuming welfare pol- icy into private law. At best, welfare smooths out rough edges of the free market (what are tech- nically called ‘market imperfections’ or ‘externalities’). This theoretical ploy cried out for a pro- gressive response aimed to show that the background rules and assumptions by which law reg- ulates the free market themselves constitute a site of distributive conflict. Instead, most left-legal criticism has pursued one of two alternative avenues. Progressive welfare theorists have largely seen their task as that of defending the legitimacy of state ‘intervention’ to achieve egalitarian redistribution. Of course, they make strong argu- ments against welfare retrenchment, for example, skillfully rebutting the argument that welfare is an addictive drug, and exposing the racism and sexism inherent in the welfare reform con- sensus. But their ultimate solution to poverty and inequality is still framed as a system of cen- tral government transfer payments, criticized by some politicians as a ‘tax and spend mentali- ty.’ The Achilles heel of this approach is that it concedes the mainstream’s central premises, that free markets and governmental regulation are diametrically opposed modes of social ordering, and that family and markets are autonomous from state power. Progressive welfare advocates’ method of redistribution assumes a conceptual framework in which a ‘regulatory’ state inter- venes in a ‘free market.’ That focus contributes to the belief that the legal background rules gov- erning the market and the family have no part in the distribution of income and power and operate in a totally separate realm from welfare law. In other words, welfare law is about state intervention in a normally ‘free’ realm, while background legal rules arise more or less sponta- neously in private spheres. Thus welfare law’s traditional, bounded assumption that central government transfer policy is the primary arena of redistribution has frustrated its efforts to counter the centre/right consensus and challenge the overall legal structure of inequality. While labour lawyers take for granted that labour markets are sites of distributive conflict, they customarily fixate on increasing waged workers’ bargaining power. Unable to think very far beyond labour market conflict as the engine of redistribution, left labour academics and activists have unwittingly reinforced the naturalization of family, contract, property, and tort law. Rarely do they deploy their critical arsenal against the background rules of private law that give existing labour markets their highly inegalitarian shape. Like most practitioners and legal academics, they fail to appreciate the importance and theoretical richness of welfare law or to develop its connections with and implications for labour law. By marginalizing welfare law as separate from labour law, they have contributed to a discourse that frames welfare law as com- prising isolated acts of ‘state regulation,’ thereby naturalizing the free market. This limited view of welfare law as anomalous state intervention, and the artificial concep- tual divisions between family, state, and market,7 regrettably mirrors the ideas behind the cur- rent welfare reform consensus. The hegemonic rhetoric, in both the US and UK, deflects atten- tion from the political underpinnings of income inequality and instead focuses on an alleged 7 See generally AS Orloff ‘Gender and the Social Rights of Citizenship: The Comparative Analysis of Gender Relations and Welfare States’ (1993) 58 American Sociological Rev 303. breakdown of the natural family and the failure of poor people, particularly lone mothers, to participate in the ‘free’ market. The prevailing political consensus relies on this unchallenged belief in the neutrality of private law to support the dismantling of welfare programmes, artic- ulated as public interventions in the natural order but which are really ameliorative adjuncts to alienated waged work. Critical welfare and labour law must expose the state’s presence in struc- turing and distributing power in families and markets, and it must reclaim welfare law as a site of redistributional politics. It must engage with and undermine the central premise of the con- temporary welfare reform consensus (and its historical antecedents) that poverty can be allevi- ated simply by strengthening families and pushing people into wage labour. And it must expose and challenge the class, gender, and racial biases of the legal rules structuring family life and market processes. III Social Welfare Laws Construct Identities and Exclusions Having artificially distinguished public and private realms, placing welfare in the former, the next challenge for mainstream political discourse was to explain why some central government income transfers are legitimate without exposing the contingency of all socio-economic struc- tures. Why choose some income transfers and not others, just as easy to imagine (for example, a guaranteed minimum income funded by steeply progressive taxation)? One solution has been to define ‘legitimate’ income transfers so as to reinforce the core institutions and understand- ings of the social status quo, made ‘natural’ by common law background rules. Thus, social welfare laws and policies were crafted in the shadow of an assumed model of alienated wage labour, comprised of breadwinners who were subsidized by unpaid work in the home based on a gendered division of labour. In the process, social welfare law built upon and added its own nuances to law’s naturalizing and legitimation projects. An area of doctrine that illuminates this process concerns the legal designation of eligible claimants for various social welfare programmes. In legal fiction, drafters of social welfare statutes develop policy based on a population consisting of people with fixed identities inde- pendent of law (for example, a person who is, in medical terms, permanently disabled from waged work). But drafting and administering welfare laws are political practices with discur- sive as well as instrumental consequences. In short, legal work creates meanings. Social welfare- related legal practices partially construct the identities of deserving and undeserving claimants. By way of illustration, one of the most fundamental distinctions in social welfare law is between programmes for ‘workers’ who suffer income interruption (due, for example, to unem- ployment, accident, or retirement) and programmes for ‘non-workers.’ Social insurance pro- grammes for ‘workers’ or ex-workers are typically financed by employer-employee contribution schemes. Social assistance programmes for ‘non-workers’ are commonly financed from general revenues, and are less generous and highly stigmatized. An elaborate body of statutory rules and doctrines determines who is a ‘worker’ and who is not. The worker versus non-worker distinction is highly ideological. It draws upon and develops the messages of the legal culture generally – the public/private distinction, the disjuncture of family and market, and the privileging of market activity. The highly negative popular image of welfare beneficiaries is largely a self-fulfilling prophecy of general social welfare law and poli- cy, built upon long-standing prejudice against the poor, whether in waged or non-waged work. To begin with, the fundamental, and fundamentally gendered, assumption of mainstream theory is that ‘work’ means paid work, and ‘worker’ means someone who works almost exclu- Re-Envisioning the Discourse of Redistribution 245 2 4 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E sively in wage labour. Traditional theories of ‘productivity’ largely exclude the value of unpaid labour as an integral factor, a cost of production. Workplace productivity assessments are based on factors that isolate one’s role in paid work and ignore other parts of life that influ- ence, contribute to, or detract from productivity. While economists and lawyers speculate about increased ‘efficiency’ or ‘productivity’ as if these were fixed or ‘natural’ concepts, they ignore production costs currently absorbed by the household, such as the provision of health care and childcare. The production of value outside and apart from paid work for employers does not ‘count’ (it is valuated at zero), so policy makers take this form of subsidy largely for granted.8 In addition, since everyone (including, by the twentieth century, women) owns his or her labour power and has freedom of contract, everyone potentially can work (that is, earn wages). So if a woman does not earn wages, and also fails to marry and make a home for a wage-earn- ing spouse, her poverty is attributable to her social deviancy. Such a person becomes ‘depend- ent’ on ‘the state.’ The main point of this rhetoric is, of course, to stigmatize the victim, but there are several powerful subtexts. First, since waged work is the opposite of non-waged work, and since non-waged work is ‘dependent,’ waged work must be ‘independent.’ Therefore main- stream theory complacently ignores or actively suppresses the alienated, subordinate, often authoritarian character of waged work, and most waged workers’ utter dependence on how well their employers manage and cope with technological and market shifts. Secondly, since ‘non-worker’ recipients of social assistance are dependent on the state, every- one else must be independent of the state. Therefore, mainstream theory ignores the role of gov- ernment in creating and protecting the ‘entitlement programmes’ of the well-to-do, namely, the background laws of property, contract, family, and tort, not to mention tax and other subsidies to business and to middle and upper-class households. The mainstream framing of social welfare policy in terms of the worker/non-worker dis- tinction produces many unfortunate consequences for both general public debate and the left’s ability to imagine transformative alternatives. Among the most damaging is that this perspective renders invisible the population who are both ‘workers’ (that is, waged workers) and ‘non-workers’ (welfare recipients, most of whom do massive amounts of unpaid family work). Large numbers of people cycle between low-waged work and welfare programmes. Studies within the US, immediately preceding the 1996 US ‘welfare reform’, document welfare and waged work as inextricably intertwined, thereby challenging the widely held assumption that welfare recipients are a category separate and distinct from paid workers. A majority of women receiving welfare move in and out of low-waged work on a regular basis.9 One study found that of the sixty-four per cent of women on welfare for the first time who left the rolls within two years, almost half left for work. But of those who left, three-quarters eventually returned; forty- 8 On the economic interdependence of paid and unpaid work and its invisibility in dominant discourse, see further K Rittich ‘Feminization and Contingency: Regulating the Stakes of work for Woman’ in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 117-137. 9 If one used ‘point in time’ data, ie, counting the percentage of those on a given day both receiving welfare and participating in wage work, there appears to be very little overlap, figures showing only about 7% of welfare recipients are also in paid labour. Staff of House Committee on Ways and Means Background Material and Data on Programs. Within the Jurisdiction of the Committee on Ways and Means (1996) 104th Cong 2d Sess at 474. But this type of data collection does not take into account the ‘cyclical wel- fare/work population.’ five per cent returned within a year.10 Another study found that seventy per cent of welfare recipients participated in some way in the wage labour force over a two-year period: twenty per cent combined paid work and welfare, twenty-three per cent worked intermittently, receiving welfare between jobs, seven per cent worked limited hours and looked for more paid work, and twenty three per cent searched for, but could not obtain, paid work. The women in this study held an average of 1.7 paid jobs over the two-year period and spent an average of sixteen weeks looking for paid work.11 As in most Western nations, the US legal rules concerning eligibility for benefits under the Unemployment Insurance (UI) system reflect the false dichotomy between waged workers and welfare recipients. Although low-waged workers contribute to the UI benefit-pool in the sense that employers pass payroll taxes onto them in the form of lower wages, UI rules exclude many low- waged workers, particularly women12 and people of colour, from the definition of ‘employee.’13 Minimum past earning requirements in many states14 render ineligible many part-time, low-wage workers.15 Thus most of the single mothers who moved from welfare to wage labour and then lost their jobs found they were ineligible for the UI Program. In one study of women-maintained families in which the mother was employed for at least three months, almost three times as many families turned to welfare as to UI. In another study of 1,200 single mothers who received wel- fare for at least two months in a twenty-four month period, forty-three per cent also worked, aver- aging just about half-time. However, only eleven per cent of those who worked later qualified for UI. By denying many low-wage earning mothers transitional support when they become unem- ployed, forcing them to resort or return to welfare, UI law constructs them as persons who are ‘not attached to the labour force,’ that is, as social deviants who cause their own poverty by refus- ing to work and who are, therefore, unworthy of assistance from society. Re-Envisioning the Discourse of Redistribution 247 10 LD Pavetti The Dynamics of Welfare and Work: Exploring the Process by Which Young Women Work Their Way Off Welfare, unpublished PhD dissertation, JFK School of Government, Harvard University (1993). 11 R Spalter-Roth Making Work Pay: The Real Employment Opportunities of Single Mothers Participating in the AFDC Program (Washington DC: Institute for Women’s Policy Research, 1994). 12 20% of women were excluded based on minimum weeks of prior employment as opposed to eight percent of men. 10% of women were disqualified based on the required amount of earnings in the highest earning quarter compared to 4% of men. Minimum earnings requirements disqualified 4% of women as opposed to 2% of men. Taken together, prior earnings requirements excluded 34% of women as opposed to 15% of men. YH Yoon, R Spalter-Roth & M Baldwin Unemployment Insurance: Barriers to Access for Women and Part-Time Workers (Washington DC: National Commission for Employment Policy, 1995) 24. 13 For example, UI coverage requires not just a connection to waged work, but a sufficient connection, dis- advantaging low-waged and contingent workers. To meet monetary eligibility minimums, low-waged work- ers must work more hours than higher paid workers: Advisory Council on Unemployment Compensation, Report and Recommendations (Washington, DC: US Government Printing Office, 1995) 17. In nine states, a half-time, full-year (1040 hours of work) worker who earns minimum wage is completely ineligible for benefits, while the worker who earns $8.00 an hour for the same hours of work is eligible (ibid). Likewise, a two-day a week, full-year worker earning minimum wage would be ineligible in 29 states, but the same worker earning $8.00 an hour would be eligible in all but two states (ibid). 14 33 states require that a minimum amount of earnings be received in an individual’s high-waged quarter. Thus, workers who concentrate their work hours in a shorter period are more likely to meet the eligibility requirements (Advisory Council on Unemployment Compensation (note 13 above) at 94, 98). For exam- ple, nine states would disqualify a half-time, full-year minimum wage worker (who worked 1040 hours), but only one state would disqualify the same worker if she worked the same number of hours full-time for 26 weeks and did not work at all for the rest of the base period (ibid 98). 15 One study found that 10% of all unemployed part-time workers received unemployment insurance as opposed to 36% of full-time workers: Yoon et al (note 12 above) at 34. 2 4 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Far from welfare recipients demonstrating an unwillingness to work, these studies suggest that most welfare recipients prefer and endeavor to earn wages even under the most trying per- sonal circumstances. Their efforts are frequently frustrated by barriers for which legal rules and public policies are responsible. Often, they cannot find employment for which they are quali- fied. Even in times of low unemployment, low-waged work conditions are so precarious as to guarantee that many low-waged earners will periodically cycle through periods of unemploy- ment. Low-waged jobs in the US, UK, and many other developed nations pay below-subsistence wages (thereby ensuring that workers cannot provide for their families), provide little or no training or advancement opportunities, and typically have inflexible work schedules allowing no adjustment for the family care needs of low-income families who do not have nannies or other family members available to care for their children and elders. Low-wage employers often induce employee turnover as a wage-depression strategy. Far from providing a forum for self- actualization, independence, autonomy, and empowerment, these jobs generate self-alienation, depression, poverty within wage work, and disempowerment. The perceived bifurcation of waged work and welfare receipt allows the idea of dependen- cy to be severed from any connection with the sale of labour power in the market, discursive- ly erasing the alienation and subordination within low-waged work. The legal system defines who is a worker and who is independent, thereby stigmatizing adults who do not meet the legal definition of worker as trapped in dependency. The legally constructed identity of wel- fare recipients as shiftless non-workers, rather than as ‘autonomous’ wage earners, reinforces the negative images of welfare recipients that resonate so deeply with much of the US and UK public. This ‘reality’ drives the debate about welfare reform, as, for example, during the US debates leading to the passage of the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). The PRWORA limits a family’s ability to get welfare to a maximum of five years in a lifetime, and mandates stringent work requirements even during the eligibility period. In other words, the Orwellian power of legal discourse to portray work- ers as non-workers creates a disconnection between people’s experience as workers and their recognition as workers. Like the background rules that divide the family and the market into independent ‘private’ spheres, both separated from ‘state-imposed’ welfare, social welfare laws create and reinforce identities and images that deeply influence labour and welfare policy debates. Unfortunately, progressive labour lawyers have often played into this discourse, again privi- leging labour markets as the site for redistributive politics and wage labour as the arena of pro- ductivity. The dominant consensus treating ‘dependency’ as a condition located outside waged work helps sustain a cultural and psychological framework that encourages the labour move- ment and waged workers to deny or overlook their dependency and subordination. Labour movements can and do view government transfer programmes serving paid workers as legiti- mate entitlements for those who contribute to society, not for those dependent on society. For example, UI laws in the US often reflect hard fought victories for the labour movement. But traditionally, as US unions lobby for improvements in and expansion of UI laws, they have consciously distanced themselves from welfare recipients. Indeed, in urging UI reform, unions have often explicitly invoked the rhetoric of the ‘worthiness’ of UI as an earned entitlement, specifically juxtaposed against a view of welfare as an unearned ‘dole’ for non-workers. Perhaps they have done so under an assumption that union members or prospective members will never need to rely on welfare or be out of waged work for substantial periods of time because of fam- ily responsibilities, or that incremental victories for waged workers within the bargaining unit can only be achieved by valorizing a certain ‘self-reliant’ image of earner. However justified, this approach has deflected labour’s attention away from government social policy as an arena of redistributive politics separate from ameliorating market imperfections. Thus organized labour plays into the fundamentally conservative vision that even favoured social programmes like UI (as we have seen for welfare programmes as well) are simply an adjunct to market outcomes, rather than potentially redistributive programmes. And, however unwittingly, labour reinforces the social exclusion of non-waged workers. IV Who is a Citizen? Recently, activists and theorists on both the left and right have embraced a refurbished dis- course of citizenship as a paradigm for developing welfare policy. Despite some rhetorical appeal, this turn to citizenship discourse has not avoided, and, in some ways, has deepened, the problems arising from more traditional framings of social policy questions: privileging the mar- ket as a site for self-actualization and independence, while often ignoring, misunderstanding, and, on occasion, rendering invisible invidious class, gender, racial, and alienage biases, there- by devaluing subordinated social groups. Advocates of the New Right have advanced claims about the obligations of citizens to sup- port arguments for reducing or eliminating social protection programmes. They pose ‘active cit- izenship,’ by which they mean participation in waged work, as an alternative to social protec- tion. This rhetoric has been generously incorporated into current policy thinking in the US and UK and lends support to the welfare reform consensus. Ironically, many left activists and theo- rists in the US and UK are also embracing a discourse of citizenship, in part as a medium for developing arguments to defend social protection in the face of the welfare reform consensus. At times, they rely on an aspect of the idea of social citizenship,16 that communal provision of basic needs is critical to human flourishing and self-actualization. The democratic and republi- can overtones are appealing, and revitalizing the concept of social citizenship may be seen as a helpful way to move beyond the liberal conception of formal equality based on acquisition of property, the franchise, and the right to associate. On the other hand, the concept of citizenship carries considerable ideological baggage. The willingness of progressive activists and theorists to work within an unreconstituted, unchallenged discourse of citizenship can be dangerously misleading in two important ways: First, within most political and theoretical discourse to date, the idea of citizenship is premised on one or another version of the public/private distinction, with the obligations of cit- izenship, albeit couched in neutral terms, incorporating racial and gendered models of white male productivity in the public sphere. Secondly, classical concepts of citizenship rest on a model of political community that most theorists, including most left theorists, have been unwilling or unable to detach from the notion of the ‘nation-state.’ The modern nation-state is the product of historical forces, including conquest, imperialism, exclusion, and genocide. Nationalism is sometimes an emancipatory discourse of self-determination, but is often a plat- form for racism and domination. Thus the left should interrogate not valorize the nation-state or build a political theory on it. Re-Envisioning the Discourse of Redistribution 249 16 See generally TH Marshall ‘On Citizenship and Social Class’ in Class, Citizenship and Social Development (1964) at 28 where citizenship is defined as ‘a status bestowed on those who are full members of a com- munity’ and developing three stages of citizenship: civil, connoting liberty and property rights, political, connoting the franchise and right to organize, and social, connoting economic welfare and security. 2 5 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Citizenship discourse encompasses both rights and obligations within the ‘public’ sphere. In its traditional, more limited, version, ‘public’ means ‘governmental,’ and ‘private’ includes the realms of market, waged work, and family. Public/private corresponds to state/civil society. Under this model, citizenship entails entitlements and duties to participate actively in the polit- ical affairs of the day (for example, by voting and the exercise of expressional rights). People of colour, women, children, and individuals without real property – groups who have historically suffered political disenfranchisement – have been to a significant extent excluded from this tra- ditional conception of citizenship. Progressives fought a long, uphill battle to bring the concept of citizenship into the paid work- place in the form of collective bargaining rights, minimum labour standards, and equal employ- ment opportunities. Even so, the expansion of citizenship rights into paid work, as progressives tra- ditionally fought for it, has incorporated a racialized, gendered breadwinner model. In other words, traditional progressivism effectively promotes a second version of the public/ private distinction, in which ‘public’ means government and economic activity, whereas ‘private’ denotes the family. Although the boundary between the public and private has shifted, citizenship obligations contin- ue to incorporate racial and gender hierarchies and bias by excluding those who are economically disenfranchised, that is, insufficiently attached to waged work. Little conceptual progress has been made to imagine viable alternative forms of citizenship participation in other arenas. Specifically, citizenship obligations until heretofore have not included care-giving, and correspondingly, the image of the citizen does not include care-givers, whether wives, servants, or slaves. As previously disenfranchised groups have acquired formal, political status as citizens, with rights to vote, contract, own property, and associate, the dominant political culture has embraced the assumption that ‘equality’ has been achieved – that all individuals, regardless of race, class, and gender, stand on an equal playing field and can negotiate in markets and fami- ly structures as equals in the pursuit of economic welfare and security. Thus, the traditional dis- course of citizenship reinforces formal conceptions of equality, individualism, and self-reliance, and the view that individual responsibility (merit and effort) is the primary method for cor- recting economic and power imbalances. An imagery of citizenship focused on independent and autonomous individuals possessing rights and obligations within the public sphere legitimizes the correlative imagery of ‘dependants’ – people who are not full citizens because they are not in waged work. Paid work becomes the forum within which social citizenship can be recog- nized. In other words, the ‘private’ pre-legal rules of the market become the ‘public’ cultural sphere through which citizenship obligations can be fulfilled. It is very difficult to erect a broad, multi-layered programme for economic redistribution on such a platform. Indeed, from this, it is a short step to rhetoric emphasizing the need for wel- fare recipients to be active and productive participants of society within the public sphere of waged work. This concept of citizenship – the white male breadwinner version – excludes wel- fare recipients cycling in and out of low-waged employment, juggling the demands of paid work and family responsibility, as well as care-givers who are not in the paid labour market. Like the statutory definitions of ‘worker’ that exclude low-waged workers and home-makers, building ‘social citizenship’ on the foundation of an unproblematized, liberal conception of who is a cit- izen risks excluding welfare recipients and others considered outside mainstream society.17 17 Note the current rhetorical deployment by the UK government of notions of ‘exclusion’ and ‘inclusion,’ often designating lone mothers as ‘excluded’ from society, reminiscent of the poverty discourse in Elizabethan times that viewed the pauper as outside the community, ie, in the poor house. On current UK welfare policy, see further Conaghan ‘Woman, Work and Family: A British Revolution’ in J Conaghan, RM Because the dominant discourse embraces formal, ahistorical conceptions of the individual, the citizen, and equality, concepts of social citizenship uncritically derived therefrom will not be sufficiently sensitive to the structural limitations of civic rights and entitlements in societies per- meated by illegitimate racial, gender, and class domination. Yet often left labour and welfare theorists have not attended to the highly gendered and racialized nature of citizenship as we know it, nor have they done much to re-envision the con- cept to include the life experiences and needs of the millions of people who cannot meet the conventionally defined obligations of citizenship.18 The forum for fulfilment of citizenship, even among progressive labour and welfare advocates, remains the public realm. Labour’s con- ception of social citizenship refers largely to collective action and minimum guarantees in the labour market. Jurists interpreting welfare laws valorize waged work as the privileged site of human self-realization.19 Not surprisingly, since the PRWORA, many progressive welfare lawyers have focused on assisting poor families to overcome barriers to participation in paid work. They have done so, however, without seriously challenging the mainstream tenet that government ‘interventions’- like welfare programmes – are presumptively inefficient and should be carefully limited to the role of ameliorating the contradictions, and correcting the imperfec- tions, of the market. A left political agenda that merely grafts some socio-economic rights onto the model of citizenship, albeit within discourses of workplace democracy and egalitarian fam- ily relations, fails to problematize its foundational concepts. Even if we were to develop a richer conception of participation, for example, by including care-giving activities currently denigrated because of the privileged place of politics and wage labour, it remains the case that citizenship discourse rest historically on notions of membership and participation in a particular polity or nation-state.20 Although this may not be logically entailed, membership is taken to imply exclusion, whether by social or geographic boundaries. But the nation-state as we know it owes more to conquest, racial exclusion, imperialism, and genocide than to the liberal-democratic revolutions and the progressive appeal of self-determi- nation.21 When labour and welfare academics and activists take the national context for grant- ed, we fail to grapple with the intricate connections linking social protection, labour, mobility of capital, and immigration, often, in ostrich-like fashion, hiding our heads in the sand in a time of increasing global economic integration. Re-Envisioning the Discourse of Redistribution 251 Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 53-74. 18 Notable exceptions include JS O’Connor ‘Gender, Class and Citizenship in the Comparative Analysis of Welfare State Regimes: Theoretical and Methodological Issues’ (1993) 44 British J of Sociology 501; Yuval- Davis ‘Women, Citizenship and Difference’ (1997) 57 Feminist Rev 4; Orloff (note 8 above); R Lister ‘Citizenship: Towards a Feminist Synthesis’ (1997) 57 Feminist Rev 28. 19 See, eg, New York State Department of Social Services v Dublino, 413 US 405 (1973), and Brief of the Appellants, New York State Departments of Social Services and Labor and their Commissioners at 36: ‘…But work is not an obligation that makes less of a man[sic], but rather it makes more of a man. Tub work is more than doing a job, putting in time and collecting pay. Work is a source of interest, of friendship, and of activity that gives meaning and fulfillment to life…’ 20 For additional discussion of the idea of citizenship within the discursive framework of the nation-state, see further, Bosniak ‘Critical Reflection on “Citizenship” as a Progressive Aspiration’ in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 339-352. 21 Recent US critical approaches to international law have begun to articulate more complex, multi-layered notions of borders. See, eg R Buchanan ‘Border Crossings: NAFTA, Regulatory Restructuring, and the Politics of Place’ (1995) 2 Indiana J of Global Legal Studies 371. 2 5 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Of course, in light of the crisis of declining union power and the intensity of assaults on the wel- fare state, US labour and welfare advocates and theorists have understandably focused atten- tion on their domestic scene. However, in so doing, our rhetoric often reflects a nostalgia for isolationism. Labour’s nation-state focus is most evident in its fixation on collective bargaining as the privileged site of redistributional possibility. While this model has yielded many impor- tant victories, it rests on several increasingly problematical assumptions, including, for exam- ple, the assumption that nation-states can control the impact of capital flight and currency fluc- tuations; that immigration can be regulated through border enforcement of legal prohibitions established by nation-states; and that union density, even within a nation-state, will reach work- er-majority levels and incorporate waged workers not currently included within any collective bargaining framework, so that vertical redistribution (from management to labour) through collective bargaining poses only limited risks of exacerbating horizontal inequalities (between higher paid unionized and non-unionized, low-wage workers). While perhaps some of these assumptions were plausible in the postwar years, for reasons discussed below, social reality is rapidly pushing in a different direction. Labour and welfare law cannot be viewed as ‘domestic issues’ within any nation-state. In light of currently unfold- ing trends toward global economic integration, a concept of citizenship anchored solely in the nation-state is anachronistic. The expansion and liberalization of trade, increased volume and mobility of capital and financing, breakdown of the Bretton Woods mechanisms for currency control, portability of many production techniques and equipment, and the emergence of third world manufacturing all sharply call into question the assumption that employment and social policy can be made within a nation-state framework. All of this is in addition to the moral and political imperative for people in the developed world to accept responsibility for addressing the gross maldistribution of wealth and resources on a world scale. Mainstream US politicians and, regrettably, many progressive critics, discuss ‘transitioning’ welfare recipients to work under the PRWORA within a framework based not only on a dichotomized image of welfare recipient versus waged worker, but also on a domestic labour market, as if the US had no links to the rest of the world. But economic life in the US involves massive cross-border capital and labour flows and integrated, cross-border production chains. Changes in labour or welfare laws in other countries often have important ramifications in the US (and vice-versa), whether in the form of human migration, capital migration, or rising nat- uralizations of legal immigrants. More restrictive immigration policy, rather than reducing migration, may produce more undocumented immigrants, creating a quite different impact on US low-wage labour markets than that produced by legal immigration. Progressive lawyers attempting to develop new institutional mechanisms for redistribution must grapple carefully with the tension between capital mobility and restrictions on the free movement of persons. The relationship between the US and Mexico highlights the implications of cross-border labour, welfare, immigration, and trade interactions, particularly the impact of anti-NAFTA and anti-immigrant rhetoric on US welfare policy and naturalizations, and the artificiality of borders vis-à-vis citizenship. US labour union opposition to the NAFTA in 1994 was often voiced as a fear of ‘losing US jobs to Mexico.’ Two years later, the PRWORA terminated the eligibility of legal immigrants, whether or not in waged work, for virtually all welfare pro- grammes. Mexicans formed the largest group of US legal immigrants by far, who had chosen not to naturalize as US citizens. Labour and welfare academics and activists condemned PRWORA, but there was virtually no self-critique as to whether labour’s anti-NAFTA position might have, however unintentionally, fed into racist, anti-Mexican, and anti-immigration atti- tudes that culminated in the disqualification of thousands of legal immigrants. In ratifying the NAFTA, one bone that Congress threw to labour was the NAFTA-Trade Adjustment Act providing additional weeks of UI benefits for retraining workers (excluding workers not covered by UI laws) who lose their jobs due to increased imports or capital flight generated by the NAFTA. As a result, US taxpayers are funding the extended UI and retraining of workers dislocated by US trade policy, at the same time as they are defunding many welfare benefits to low-waged welfare recipients and legal, often Mexican, immigrants. PRWORA’s targeting of immigrants and similar political developments (such as California’s Proposition 187 barring undocumented immigrants from receiving almost all education, social services, and health benefits) prompted the emergence of a new consciousness among legal Mexican immigrants in the US to become naturalized US citizens so that they could vote and participate fully politically. Until 1994, the number of naturalizations by Mexicans legally residing in the United States was fairly stable at about 20,000 per year. This development in turn has brought about profound changes in the political landscape. In 1994, the year that Californians adopted Proposition 187, naturalizations surged to 46,186, and in 1995, to 79,614. Most dramatically, in 1996 (the year the PRWORA was being debated and enacted), Mexico was the leading country-of-birth of persons naturalizing, with 254,988 or 24.4 per cent of total naturalizations.22 As naturalized citizens, these individuals enjoy greatly expanded legal rights to bring family members into the US. Thus the ironic result of anti-immigrant politics in the 1990s may be that even greater numbers of Mexican immigrants will settle in the US, nat- uralize and vote. This, in turn, raises questions about the effect of this additional supply of waged workers on both union density and decisions of companies to relocate cross-border. Juxtapose these developments to recent dramatic changes in Mexican laws relating to dual citizenship and the ability of non-residents to vote in Mexican elections. Recent legal changes allow Mexican non-residents to maintain dual citizenship. In particular, Mexican immigrants who are naturalized US citizens are now permitted to reclaim their Mexican citizenship.23 Mexico’s Congress enacted legislation, not yet implemented at the time of the 2000 election (in which the Institutional Revolutionary Party (PRI) was defeated for the first time since 1920 by the National Action Party (PAN)), which would allow non-resident Mexican citizens to vote in Mexican elections without returning to Mexico.24 Almost 10 million Mexicans more or less permanently residing in the US could be eligible to vote in Mexican elections and are expected to support either the PAN or the Party of the Democratic Revolution (PRD), Mexican political parties advocating the democratization of labour unions in Mexico.25 Thus the huge increase in US naturalizations by Mexicans (in turn opening the door for further immigration by fami- ly members) and the emergence of dual citizenship and dual voting privileges in Mexico could have broad implications for social protection and low-wage labour in both the US and Mexico, Re-Envisioning the Discourse of Redistribution 253 22 US Dept of Justice, Immigration and Naturalization Service, 1996 Statistical Yearbook of the Immigration and Naturalization Service (1997) 152. Of course, there were other legal changes which factored into this increase, most specifically the numbers of undocumented immigrants allowed to naturalize pursuant to the Immigration Reform and Control Act of 1986, Pub L No 99-603, 100 Stat 3359 (1986). 23 Constitucion Politica de los Estados Unidos Mexicanos, art 30 (amended 1996). 24 Although the Chamber of Deputies had approved a package implementing this election reform, the Senate (controlled by the PRI) allowed the measure to die in July 1999. JF Smith ‘Vote Denied to Mexicans Living Abroad’ (1999) 2 July Los Angeles Times at A1. 25 PJ McDonnell ‘US Votes Could Sway Mexico’s Next Election’ (1999) 15 February Los Angeles Times at A1. On labour politics in a Mexican context, see further C de Buen Unna ‘Mexican Trade Unionism in a Time of Transition’ in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 401-416. 2 5 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E exemplifying why citizenship attached to the nation-state is an increasingly antiquated concept. Most lawyers working to revivify the concept of social citizenship and enlist it in the service of progressive causes reflexively and unconsciously adopt the nation-state perspective or, at best, leave that aspect of citizenship discourse unexamined. But ‘social citizenship’ will never become the emblem of redistributive politics and transformative aspirations until it is re-imag- ined from a thoroughly globalized perspective. V Conclusion The three legal discourses discussed in this essay individually and cumulatively privilege labour markets and waged work, marginalize broad redistributive agendas as exceptions, and obscure the understanding that all legal questions have distributive implications. Family and market are constructed as private, pre-legal, and autonomous from the state. The role of back- ground legal rules in entrenching power imbalances within those societal spheres is ignored. Labour lawyers and welfare lawyers have both contributed to the discursive construction of income distribution as somehow independent of state action: labour lawyers by valorizing labour markets and collective bargaining as the privileged site of income distribution, while at the same time viewing welfare law as a ‘special case’ of state intervention, and welfare lawyers by fixating on government transfer policy and largely ignoring private law. Thus welfare law becomes a market corrective technique, an adjunct to private law, rather than a redistributive hub. Likewise social insurance and social assistance statutes, often fought for and defended by the left, separate ‘workers’ and ‘non-workers’ through artificial definitions that support the creation of partial identities. When labour lawyers argue for enhanced UI benefits on the ground that society should protect and reward primary-sector wage-earners, they are ‘other- ing’ many potential allies within waged work and denigrating non-waged work, thereby per- petuating a hierarchy of market work over family care-giving performed primarily by women. The discourse of citizenship perpetuates a male model of participation in the ‘public’ spheres of liberal democratic institutions and waged work as the means of fulfilling citizenship obli- gations and therefore acquiring full social status. And traditional citizenship discourse legiti- mates first-world protectionist policies and attitudes that perpetuate gross global inequalities, while ignoring the implications of increasing global interdependence. The discourses of these quite disparate fields reinforce one another. However unwittingly, progressive legal advocacy often reaffirms the prevailing political ‘consensus’ – that policies privileging the nation-state, market, and traditional family are natural and those dismantling the welfare state are inevitable. In other words, the rhetoric of many progressive labour and welfare theoreticians and activists assumes that the identities constructed by statutory social welfare programmes accu- rately reflect a pre-legal order providing the appropriate framework for self-fulfilment and cit- izenship activity. The reaffirmation of the free market and the traditional family as the ‘correct’ framework for dealing with domestic and global income disparities – without challenging and transforming the background rules that structure markets and families – perpetuates class, racial and gender inequality and disempowerment. I do not suggest that we must devise a single, integrated, cross-border low-wage labour and poverty policy. But we must challenge ourselves to look beyond our limited or narrowly defined constituencies, to frame new questions about labour and welfare strategy within an increasing- ly globalized economy. My hope is that, by increasing the amount and sophistication of dia- logue among social welfare, low-wage labour, immigration, family and economic globalization discourses, scholars and activists in these linked fields can begin to disrupt and undermine the ways legal culture legitimates and reinforces the social and economic status quo. This essay challenges both labour and welfare lawyers to enter more rigorously into interdisciplinary self- critique as a basis for intellectual renewal and the creation of a transformative vision of the pol- itics of redistribution. Re-Envisioning the Discourse of Redistribution 255 Opening the Door to More Equality R O S S Z U C K E R Professor of Political Science, Lander College for Men, Kew Gardens Hills The (Greek) colonists tended to divide the land they settled into equal shares, reflect- ing the egalitarian tendency inherent in the ethical system of the yeoman farmers in the mother cities.1 I Income Inequality and Contemporary Political Theory The idea of egalitarian rules of income distribution runs against the grain of much, if not most, of contemporary political theory.2 This is curious considering the fact that contemporary polit- ical theory is full of theories claiming to be egalitarian. Ronald Dworkin announces that ‘egal- itarian liberalism is the dominant substantive theory of justice — indeed it is hardly even much challenged.’3 It may in fact be the dominant theory of justice, but it is, nevertheless, not well disposed toward rules that distribute market-generated inequalities of income more equally and is not egalitarian, at least in that way. (It only supports rules that redistribute inequalities stem- ming from social and natural background that are not generated by the market.) Similarly, com- munitarian opponents of liberal egalitarianism have not been formulating such rules,4 not to mention the position of liberalism’s conservative challengers.5 The Anglo-American moral and political theories developed since World War II are more concerned about inequalities of so-called basic liberty, opportunity, social background, natural talents, and capabilities than they are about inequality of income. Many, perhaps most, of them accept the legitimacy of market outcomes, including income inequalities, as long as they arise under (variously stipulated) conditions of equal opportunity. As Rawls writes, ‘[O]nce a suit- able minimum is provided by transfers, it may be perfectly fair that the rest of total income be settled by the price system.’6 The newest school of political theory, real libertarianism, seeks to justify a basic income guarantee, but this measure is not coupled with a rule that limits relative inequality above the basic income. Few on the left concern themselves with the concentration of income and wealth in the US, though it is warranted by the fact that ‘the United States ha[s] just experienced the most colos- 1 D Kagan, S Ozment & FM Turner The Western Heritage to 1715 (2001) at 48-49. 2 I would like to express my appreciation to Elizabeth Wagner for her comments on a draft of this paper. 3 R Dworkin ‘Why We Are All Liberals’ paper presented at the Program for the Study of Law, Philosophy & Social Theory NYU School of Law 19 October 1995 at 1. 4 MJ Sandel Liberalism and the Limits of Justice (1982). Sandel’s discussion implies that unequal income is justifiable if it is necessary in order to further a communal purpose. 5 See R Nozick Anarchy, State, and Utopia (1974). 6 J Rawls A Theory of Justice (1971) at 277. sal [upward] redistribution of wealth in world history.’7 Some left liberals are concerned, not about very unequal income and wealth, but about egalitarian democratic theories that conceive of democracy in a way that entails strong economic equality. Believing that real progress toward economic equality is unlikely, these left liberals conclude that full democracy, requiring strong economic equality, is unrealistic. ‘[T]here are good reasons,’ writes Stephen Elkin, ‘to think this [real progress toward economic equality] cannot be the case. Economic theory suggests that strong economic equality is not available to us, not least because it will run afoul of the need for economic incentives required if there is to be a high level of economic prosperity.’8 But the pendulum of income and wealth distribution has swung widely in the past hundred years. In 1944, the 94 percent top marginal tax rate on the highest incomes significantly reduced inequal- ity in the US.9 Now the US has just experienced a huge upward distribution of income and wealth. With these swings here and those in Europe due to the adoption and rejection of the mixed economy, why is it unthinkable that a future change in public opinion could produce a large downward redistribution? The old economic orthodoxy on incentives continues to have remarkable traction within contemporary political theory. Economic theory’s mere suggestion about the need for incentives is enough to wash away the possibility of a more egalitarian society. Old ideas can be so author- itative that many contemporary political theorists do not even ask if society could achieve ade- quate productivity with substantially reduced income differentials. Senior executives received as much as 200 or even 2000 times the annual incomes of their low- est paid workers in the US in recent years.10 But a productive economy can evidently be achieved using much lower multiples. About 35 times the annual income of the lowest paid worker ade- quately drove the American and Japanese economies in decades of strong growth during the twen- tieth century.11 And it is possible that lower multiples might have sufficed. Moreover, much of a person’s salary does not have to do with incentives anyway. Salaries of senior executives in major corporations have as much to do with power as they do with incentives, as law professors Lucien Bebchuk, Jesse Fried and David Walker demonstrated in their analysis of executive compensa- tion.12 Senior executives and corporate compensation committees are in a position to reward sen- ior executives handsomely and they take advantage of the situation. Liberals and left liberals who say ‘economic theory’ considers high income inequality necessary for incentives give a one-sided account of its position. Mainline economic theorists are not all of one mind on this. John Maynard Keynes differed from the economic orthodoxy of his day, which is not much different from current economic orthodoxy in this regard, when he said ‘There are valuable human activities which require the motive of money-making and the environment of pri- vate wealth ownership for their full fruition. … But it is not necessary for the stimulation of these activities … that the game should be played for such high stakes. … Much lower stakes will serve the purpose equally well, as soon as the players are accustomed to them.’13 Opening the Door to More Equality 257 7 Sam Pizzigati ‘The Left and the Rich’ Paper presented at the Global Left Forum, New York City (2005) at 1. 8 SL Elkin ‘Notes on the Old Political Science for the Present Age’ (2004) 1 The Good Society at 4. 9 S Pizzigati ‘The Left and the Rich’ (note 7 above) at 5. 10 P Bennis ‘Talking Points: Iraq, The UN, & US Corporations’ (2003) Web publication by United for Peace and Justice: http://unitedforpeace.org/article.php?id=2031 3 at 1. The 2000 figure refers to the multiple of Lockheed CEO Martin Vance Coffman’s 2004 pay package over that of the entry level soldier. 11 ‘CEO Pay in ’98: Insanity Marches On’ (1999) 5 Too Much 1 at 3. 12 See L Bebchuk, J Fried & D Walker ‘Managerial Power and Rent Extraction in the Design of Executive Compensation’ (2002) 69 University of Chicago LR 751. 13 The General Theory of Employment, Interest, and Money (1964) at 374. 2 5 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E The government of the United States grapples more with the problem of unequal opportunity than with unequal income and wealth (not to say the amount of its attention to the former inequalities is adequate). One might expect that policies to reduce unequal opportunity and capability would indirectly reduce inequalities of income and wealth. But inequalities of income and wealth proved intractable in late twentieth and early twenty-first century America and some other countries. Indeed they grew considerably during the last three decades. A compre- hensive analysis of contemporary inequalities of income and wealth, recently conducted by Sam Pizzigati, shows that they play a very large part in the story of contemporary America.14 Contemporary political theorists, for the most part, have not responded to evidence of the intractability of inequalities of income and wealth by developing justifications for rules of more equal distribution of income. That they have not done so serves to support a highly unequal system. Prevailing high levels of income inequality make it crucial to reconsider the direction that contemporary political theorists have chosen. Can contemporary political theory be refor- mulated to provide a justification for more direct and effective remedies to income inequality? The question turns, I think, on whether philosophical foundations for rules of egalitarian dis- tribution of income and wealth can be formulated. The income-inegalitarianism of contemporary theorists derives to a significant extent from its patrimony in the work of the distinguished philosopher John Rawls.15 They work within his paradigm in A Theory of Justice (1971) or within his related paradigm in Political Liberalism (1993). Rawls’s highly influential 1971 book supports almost all of the forms of equality then known except equality of income and wealth. Theory treats income and wealth very different- ly from the basic liberties, lexically ordering the latter before the former. While basic liberties are subject to strictly equal distribution, income and wealth are relegated to treatment under the ‘difference’ principle. As a result, equality of liberty and of opportunity is required and unlimited inequalities of incomes and wealth are authorized as long as they work to the advan- tage of the worst off. Inequalities of income and wealth are deemed just, because and insofar as they generate incentives that augment the GNP and yield a larger portion for the worst off than they otherwise get. Since A Theory of Justice was published thirty four years ago, theorists have diverged from Rawls on many points, but they tend to share his position on income inequalities, which may be characterized as follows: 1. Income inequality is not a primary concern. 2. Income inequality is justifiable. 3. The condition of the worst off is the major concern of distributive justice. 4. Market outcomes, and market inequalities, are legitimate for the rest of the population, so long they arise under equal opportunity. 5. The height of the income hierarchy cannot be limited by rules of egalitarian redistribution. Many contemporary theories of economic justice stand or fall on the veracity of these proposi- tions. Rawls attempts to justify a principle authorizing extreme inequalities of income and wealth 14 S Pizzigati Greed and Good (2005). 15 M Nussbaum calls him ‘the most distinguished moral and political philosopher of our age’: ‘The Enduring Significance of John Rawls’ (2001) The Chronicle of Higher Education B7 at B7. by appealing to the judgment of all. Everyone in the ‘original position’ (a hypothetical condi- tion designed to yield a just choice) would consent to that position, he claims. But the reason- ing of the participants seems flawed to me. They err, firstly, in supposing that inequalities of income and wealth are mere matters of the ‘good’ rather than of the ‘right’. As anyone can test out by trying to act upon one’s choice of consumption bundle without any income or wealth, income and wealth are means of freedom. For this reason, inequalities of income and wealth are inequalities of freedom and they are, therefore, subject to control by the principle of right. Mistaking inequalities of income and wealth as matters of the good, the participants downgrade the importance of inequalities of income and wealth relative to the so-called basic liberties. This decision then leads them to authorize unlimited inequality of income and wealth for incentive purposes, as long as these steps benefit the worst off.16 The last two steps are not warranted, however, because income and wealth are means of freedom. The choices afforded by income and wealth are as basic as those Rawls deems ‘basic liberties.’ Far greater caution then needs to be exercised before allowing unlimited unequal distribution of them. The reasoning of the participants seems flawed, secondly, because their concerns are parochial in comparison with the broad scope of justice. What they consent to, the difference principle, is very limited in its concerns. The difference principle holds that inequalities of income and wealth are just if they are to the advantage of the worst off members of society. The participants give their consent to this principle out of a grave concern that they may wind up among the worst off members of society.17 But they do not reflect much about inequalities over the rest of the income spectrum, though the worst off may be only a fraction of the total in a society with a mushrooming middle class. The upshot is a philosophical justification for a wel- fare state. The participants in the original position are blithely unconcerned that it might be accompanied by widening inequalities between the middle class and the upper class and between different strata within the middle class. Yet this is exactly what has come to pass in the United States.18 Indeed it is a dominant feature of contemporary life in America and increas- ingly in other countries as well. The condition of the worst off members of society is, undoubtedly, an urgent matter from the standpoint of justice. But the difference principle is not a principle of justice, in my view, because the concerns of justice are general; they do not privilege one group, even the least advantaged, to such an extent that they withhold full consideration from everyone else. Incomes of people at the top of the income hierarchy supply them with tremendously more freedom than the incomes at the bottom supply the worst off with (if they receive any income). However, there are significant dif- ferences between the incomes of other individuals all along the income gradient. The inequality of freedom between someone who has 20 billion dollars worth of means of freedom and someone who has little or no financial means of freedom is more terrible than the inequality of freedom between someone with a 625,000 dollar per year income and another with a 40,000 dollar income, but justice cannot ignore the latter inequality. Because many of the income differences along the entire income hierarchy involve substantial differences between the means of freedom available to individuals, justice is concerned with achieving real progress toward equal means of freedom all along the income hierarchy, not just with the especially objectionable inequalities in the means of freedom between the worst off and the best off. This is not to say, however, that the general rule of economic justice would level income. Some inequalities of income may be necessary for equal Opening the Door to More Equality 259 16 As to their being unlimited in Rawls’s theory, see Rawls (note 6 above) at 151. 17 Rawls (note 6 above) at 153. 18 See R Zucker ‘On the Future of the Justice Debates’ (2004) 13 The Good Society 67 at 76-77. 2 6 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E freedom, due to differences between individuals’ consumption and production ambitions. But many of them do not result from differences between individuals’ consumption and production ambitions.19 To this extent they are inimical to equal freedom. Rawls’s focus on unequal opportunity for education and training suggests an implicit empha- sis on supply side determinants of income inequality. Market rewards to productive agents depend, however, not only on training and education, but also on the demand for what is being produced. Since extreme inequalities of income naturally arise from within the market, even under conditions of fair equality of opportunity, equal opportunity rules exercise less control over income inequality than some might suppose. As William Julius Wilson demonstrated in The Truly Disadvantaged (1987), income inequality rose among blacks during the 1980s despite greater equality of opportunity afforded by the civil rights laws and legislation passed during 1960s and ’70s. These facts suggest that egalitarian liberalism has shortchanged equality by emphasizing equality of opportunity at the expense of real progress toward equality of incomes. Any theorist concerned with limiting the range of income inequality might recognize a need to try to formulate principles of relative distribution of income, not just rules regarding capabilities or opportunities. As economic inequality grew in the 1970s and 1980s, liberal theorists brought out a seeming- ly new approach, known as ‘liberal egalitarianism.’ In ‘Equality of Resources — Part Two’ Ronald Dworkin argued that inequalities of income and wealth that result from social background, nat- ural talents, and brute luck are not outcomes of free choice. These inequalities are therefore incon- sistent with equal freedom or real equality of resources and they should be nullified by optional insurance plans.20 Apart from concern with these sorts of inequalities, liberal egalitarians accept the legitimacy of market outcomes, including extreme inequalities of wealth and income. Inequalities of income and wealth could have been significantly reduced if countries imple- mented liberal egalitarian principles for dealing with the ramifications of social background, natural talents, and unequal opportunity. But extreme inequalities of income and wealth would not be eliminated by such measures. Capital-based market systems have internal processes that would generate extreme inequalities despite measures to offset the income-effects of social background and natural talent. For example, liberal egalitarianism does not reduce demand- side causes of inequalities of income. People with equal talents and social backgrounds can make extremely different incomes depending on consumer preferences for their products. During the 1980s and 1990s contemporary political and moral theory supplemented its focus on the worst off, equal opportunity, social background, and natural talents by adding an emphasis on capabilities. This change roughly tracked the shift in the American economy from a capital-goods producing economy to a service economy and a high technology economy. The new economy is one where possession/ non-possession of marketable capabilities rivals ownership/non-ownership of cap- ital as a determinant of income.21 Amartya Sen provided a philosophical justification for increased governmental and societal emphasis on the development of capabilities.22 In doing so, he broadened the moral scope of liberal theory considerably. But his formulation emphasizes capabilities over incomes and the principles that he proposes do not directly regulate the inequality of income. Sen 19 For more on this, see R Zucker ‘Democracy and Economic Justice,’ Paper presented at the annual meeting of the American Political Science Association 23 August 2003. 20 R Dworkin ‘What Is Equality: Part 2: Equality of Resources’ (1981)10 Philosophy and Public Affairs 283. 21 C Graham and S Pettinato Happiness and Hardship: Opportunity and Insecurity in New Market Economies (2002) at 41. 22 A Sen Choice, Welfare and Measurement (1982) at 367; A Sen Inequality Reexamined (1992) at 19-22. For an interesting, recent treatment of capabilities, see DP Levine ‘Poverty, Capabilities, and Freedom’ (2003) 15 Review of Political Economy 101. contended that every basal equality entails a secondary inequality.23 In a system of thought which accords priority to capabilities, this means that capability equality can require income inequality or, in other words, that income inequality is justified for the sake of capability equality. The principles proposed by the foregoing liberal theories could have some beneficial effect upon economic inequality if they were implemented, but they would not adequately or direct- ly reduce income inequality. Each one of them authorizes a wide scope for market-generated inequalities of income and wealth. These inequalities cannot be dealt with satisfactorily by lib- eral egalitarianism’s roundabout methods. To rectify them direct limits need to be placed on the scope of market generated inequalities. Capping incomes is not necessary, however. A rule of redistribution that strictly equalizes part of a person’s income and leaves another part of it unregulated would substantially reduce inequality without a cap. The central question for this article is whether such a rule is morally defensible. Against the background of roundabout liberalism, ‘real libertarianism’ presents a welcome change. Finally there is a contemporary political theory that focuses directly on income and offers rules of income distribution. Van Parijs claims that this economic philosophy would pro- vide real liberty if adopted.24 I suspect that it would not promote liberty as much as he main- tains. The basic income guarantee provides basic means of freedom, but above this floor peo- ple can have extremely unequal means of freedom. No limit is defined for the height of the income hierarchy above the floor. Real libertarianism is a more direct form of liberalism in its treatment of income, but it is not a form of real liberty. Direct libertarianism, if you will, does not answer to the challenge of 21st century income in- equality. Its central concept, a basic income, represents a throw back to Rawls’s emphasis on the worst off or a way of realizing his emphasis on this group. The provision of a basic income adjusts the height of the floor, but — like previous welfare entitlements — allows extreme income inequality between the upper, middle, and lower strata. Van Parijs explicitly formulates the basic income theory as a lex- imining approach, which places tremendous weight on the condition of the worst off rather than on general inequality, just as the difference principle does.25 Sounding like Nozick, Van Parijs character- izes egalitarian rules of income distribution as violations of freedom and of basic security rights.26 Real libertarianism leaves in its wake the same question that the rest of contemporary polit- ical theory does: Is real progress toward equality of income justifiable? II A Social Theory of Reward for Economic Contributions (A) INTRODUCTION A theory of distributive justice sets forth principles stating that resources should be distributed in a certain way. Principles of just distribution are arrived at by reasoning guided in line with ideals of justice. One of these ideals is that people should be rewarded in proportion to their economic con- tributions. This ideal, the reasoning, and the principles comprise a branch of justice known as the ‘ethics of reward for economic contributions’ or as ‘ethics of dueness for economic contributions.’ Another branch of distributive justice, the ‘ethics of community,’ has a distinct ideal of justice: that Opening the Door to More Equality 261 23 A Sen Inequality (note 22 above) at 19-22. 24 P van Parijs Real Freedom for All (1995). 25 Van Parijs Real Freedom (note 24 above) at 25, 33. 26 Van Parijs Real Freedom (note 24 above) at 25. 2 6 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E the members of a community, united for the pursuit of some common end or ends, are entitled to share in the end(s) of association, to the extent that it is a community. Still another branch of jus- tice, the ‘ethics of freedom,’ holds that resources should be so distributed that they contribute, as much as possible, to the realization of freedom. I will sketch a derivation of principles of just dis- tribution within the first two branches of distributive justice. Ethicists of reward for contributions usually take the position that unequal rewards are jus- tified because some individuals make bigger contributions to the creation of value than others do. In fact, they usually think extremely unequal rewards are morally supportable as long as they are proportionate to contributions. Reward proportionate to contributions sounds like the standard distributive ethics in economics, but actually it is not. JR Hicks showed that the mar- ginal product of labour or capital does not determine the wage or rent; it only equals the wage or rent.27 Thereafter most neoclassical economists ceased to view the ethics of reward as a sci- entific ethics of distribution. The neoclassical theory nevertheless continues to provide a major underpinning for the ethics of unequal reward. However, ethicists rather than neoclassical theorists are for the most part the ones that treat this ethics as a scientifically well-founded approach. In neoclassical theory, the system is one where individuals receive unequal incomes partly because of differences between their labour-leisure choices and partly because the selling prices of the final products (which indirectly affect factor prices) are affected by consumer preferences that are different to the point of non-comparability. Since differences between individuals are vital to its account of the determination of major system variables, neoclassical theory has an elective affinity for the ethics of unequal reward. In view of this, it is not surprising that some normative economists (Hayek, Zamagni) and ethicists outside of the profession continue to uphold principles of unequal remuneration based on different contributions. Ostensibly value-free microeconomic theory perpetuates the ethics of reward for unequal contributions in the contemporary era. The modern economic ethic of unequal reward can be assessed by reexamining the theory of the determination of economic value on which it is based. The theory of economic value is a theory of the determination of the value of commodities, that is, goods and services bought and sold on the market. As neoclassical theorists contend, individual contributions differ. But in what ways and to what extent? I will argue that individual contributions are also similar in some ways that ethicists have not taken into account when calculating appropriate rewards for contributions. If forms of equal contributions can be demonstrated, then these equalities must be taken into account when calculating just remuneration. The implications of their incorpora- tion into an ethics of dueness are clear: people have been remunerated more unequally than they should have been and income should be distributed more equally than it is. The theory of value presupposed by most theorists of reward is itself premised on a certain assumption about the kind of economic agents that make economic contributions. Producers are assumed to be the only kind of economic agents that can make economic contributors, since they are the only ones that can create economic value. The labour theory of value or the pro- duction theory of value was put forth by classical liberal theorists (eg Locke), classical political economist (eg Smith) and by Marx. Theorists of reward from the classical liberalism to the pres- ent day have tended to base their ethics upon an essentially classical theory of value and of con- tributions. In their assumption of a classical theory of value, contemporary theorists of reward for contributions have not found themselves much challenged. When they are challenged it is usually on other grounds. Encountering little challenge to their underlying theory of value, con- 27 JR Hicks The Theory of Wages (1963) [1932]. temporary theorists of reward have not provided any defense of this approach. Their assump- tion that only producers create value clearly is at odds with the established position of modern, or ‘neoclassical’ economic theory, which holds that consumers, not only producers, help to determine the value of commodities. Rewards theorists do not consider the implications of this for the ethics of reward because they do not take it much into account. Neoclassical theorists also do not bring out the full ethical implications of their value theory. In particular, they have not explored the possibility that consumers’ part in the creation of value can be considered to be a contribution which can accrue entitlements for the value they create. (B) DO CONSUMERS QUALIFY AS CONTRIBUTORS? The foregoing analysis raises a serious problem for the ethics of reward for contributions. Do consumers meet the criteria for remuneration under a theory of reward for economic contribu- tions? The theory of reward is one that divides up rewards in proportion to contributions. As such, it must register any human source of economic creation. On this theory, inanimate objects and animals do not accrue entitlements for contributions, any more than they are entitled to any other sorts of rights. They can be protected, though, by fiduciary arrangements made on their behalf. An activity can qualify as an economically creative action if it contributes to the creation of the value of commodities. Consumer activities qualify as economically creative activities because they contribute to the determination of value and, therefore, satisfy the fore- going criterion of economically creative action. For this reason, consumer activities inexorably accrue moral titles for their contributions, on a principle of dueness. Consumer activities, such as the pursuit of want satisfaction or need satisfaction, display the same qualities that entitle producers to reward for their contributions. Producer contributions qualify because and insofar as they help to create value in the sense of exchange value, not merely use-value for the person himself or herself. But consumer contributions can meet this test as well. Neoclassical models of the economy in a condition of general economic equilibri- um show that consumer preferences help to determine relative prices or exchange values. Producer contributions qualify for remuneration because and insofar as they make socially val- ued contributions. Consumer contributions meet this test too. The effect of consumer prefer- ences upon relative prices shows that they are socially valued. Since consumers meet all of the requirements for remuneration for contributions that producers meet, they qualify for remu- neration proportionate to their contributions, just as producers do. To accord remuneration only to producers and to deny it to consumers would be, in a word, unjust. One might object that producer and consumer contributions differ in other ways which preclude the latter from entitlement to rewards. Productive activities, one might argue, involve effort and they are disutilities, whereas preference satisfaction is pleasurable, effortless, and has utility. But productive activities do not compare to consumptive activities as labour or effort does to satisfac- tion. Robert Lane points out that ‘[i]t is in work, not in consumption and, as research reports show, not even in leisure, where most people engage in activities that they find most satisfying, where they learn to cope with their human and natural environments, and where they learn about themselves. The economists’ ideas that work is the sacrifice or disutility that earns for workers the benefits or utilities of consumption is … quite false.’28 If productive activities can be due rewards for contri- butions notwithstanding the fact that they can be satisfying, then consumer activities and wants cannot be disqualified for rewards simply because they are satisfying. And, if consumer activities Opening the Door to More Equality 263 28 R Lane The Market Experience (1991) at 235. 2 6 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E are disqualified for rewards because they are satisfying, then work must be disqualified for remu- neration as well — since it is satisfying for most people too. In some of the leading contemporary theories of reward for contributions, contribution to the value of commodities, rather than the subjective experience of toil and trouble, is the major basis of reward for contributions. It would be inconsistent with this standpoint to preclude consumer activities, like the pursuit of want satisfaction, from receiving rewards for their contributions to value. Friedrich von Hayek argued that producers should be remunerated in proportion, not to the subjective experience of toil and trouble expended in production, but to the value of the product as determined by the market.29 Someone who enjoys tinkering, effortlessly invents a new widget, and sells it for a million dollars, is entitled to the market value of the widget in Hayekian ethics. Likewise a virtuoso pianist who practices constantly, but whom no one is willing to pay to hear, does not deserve any remuneration. Contemporary ethicists have not however drawn the implica- tions of this argument for rewarding consumers for their value contributions. If producer activities should be rewarded for contributions to value, not for the ‘toil and trouble’ they involve, then con- sumer activities can be due rewards for their contributions to value. (C) DO CONSUMERS REALLY MAKE CONTRIBUTIONS? Thomas Spragens, a professor of political theory at Duke University, argues that the social the- ory of rewards that I have presented is unpersuasive.30 The egalitarian rewards for consumer contributions are not warranted because consumer preferences, wants, and needs do not help to create economic value. He also objects to my claim that consumers play a role in the deter- mination of value in neoclassical economics. This last objection surprises me because the sup- ply and demand graphs in almost every microeconomics textbook show consumers helping to determine relative prices and, in this sense, to create value. Moreover, mathematical models of general economic equilibrium are even clearer that postulated consumer preferences and the state of technological knowledge help to determine prices.31 Spragens’ objection needs to be considered, however, because the egalitarian theory of reward cannot be valid if the underlying theory of value, involving a role for consumers, is wrong. ‘Needs become contributions to the creation of economic value,’ he writes, ‘only when they are backed by the resources to make them ‘effective,’ and that results only when those with the needs have produced something others want in order to generate the wherewithal to make their demand effective’.32 Since consumer wants, preferences, and needs do not make a contribution to the value of commodities, he thinks that the consumer theory of reward cannot be right. Spragens is correct to the extent that consumer preferences cannot help to determine relative prices if the consumer has no purchasing power. But from this point he moves to dismiss the possibility that consumer needs or preferences contribute to the value of commodities. My account of neoclassical economic theory does not deny the fact that consumer preferences can- not help to determine relative prices unless consumers have purchasing power. Moreover, the theory of value that I employ, which is not quite the same as neoclassical theory’s approach, does not deny it and is not refuted by it. The fact that consumer preferences have to be combined with purchasing power to have an effect 29 FA von Hayek The Constitution of Liberty (1960) at 94-97. 30 T Spragens ‘Review Essay: Justice, Consensus, and Boundaries: Assessing Political Liberalism’ (2003) 31 Political Theory 589 at 592. 31 G Debreu Theory of Value: An Axiomatic Analysis of Economic Equilibrium (1959). 32 Spragens ‘Review Essay’ (note 30 above) at 592. on prices does not mean that they cannot help to create value. It just means that they cannot help to create value without purchasing power. When Spragens denies that consumer preferences help to create value (because they can only do so when combined with purchasing power), he assumes that the influence of preferences is absolutely indistinguishable from the contribution which pur- chasing power makes. But they are distinguishable, though not wholly separable. Labour cannot engage in commodity production unless it is combined with capital in a production process, but that does not prevent labour from contributing to the creation of value. Everything in an interde- pendent neoclassical system effects prices through its relation to other variables, but that does not prevent them from making distinguishable contributions of their own. As I have already noted, when Spragens reduces the influence of consumers upon prices to the value of the resources that they (in their capacity as producers) obtain from producing things, he then denies that consumer wants form part of the value-creation process. He is attempting to reduce the role of the consumer in price determination to production, so that production appears to be the underlying source of value. But neoclassical economic theory is not really reductive in the specific way Spragens suggests that it is. Such theory accords consumer preferences relative autonomy in the process of creating value. Their role can be seen by considering a neoclassical model of gener- al economic equilibrium. If we alter the consumer preferences in the model, without changing the endowments (in this case of labour or wheat), relative prices change, suggesting, contrary to Spragens, that they make a distinguishable contribution to value. To illustrate, let us consider a standard neoclassical 2 x 2 x 2 general equilibrium model of the economy with decreasing returns to scale production functions. Specifications of the Model w1..price of input 1 w2..price of input 2 p1..price of good 1 p2..price of good 2 s1 1.. share of profits in industry 1 owned by person 1 100% of π1 s1 2.. share of profits in industry 1 owned by person 2 0% of π1 s2 1.. share of the profits of industry 2 owned by person 1 0% of π2 s2 2.. share of profits of industry 2 owned by person 2 100% of π2 q1..quantity of produced commodity 1 q2..quantity of produced commodity 2 v1..labour, v2.. land v1 1.. consumer 1’s endowment of input 1 (labour) v2 1.. consumer 1’s endowment of input 2 (land) v1 2.. consumer 2’s endowment of input 1 v2 2.. consumer 2’s endowment of input 2 v1..the total endowment of labour Let us suppose that the total endowment of labour is 20. v2..the total endowment of land. Let us suppose that the total endowment of land is 16. x1..wheat x2..wool x1 1.. amount of produced good 1 consumed by person 1 x2 1.. amount of produced good 2 consumed by person 1 x1 2.. amount of produced good 1 consumed by person 2 x2 2.. amount of produced good 2 consumed by person 2 Opening the Door to More Equality 265 2 6 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Utility functions: Consumer 1 U1 = (x1 1) (x2 1) Consumer 2 U2 = (x1 1) (x2 1) Production functions: Wheat production (Good 1; Labour intensive) q1 = (v1 1) (v2 1) Wool production (Good 2; Land intensive) q2 = (v1 2) (v2 2) Let us choose as the numeraire good. Solving the system of equations for this model, I obtained the following results:33 x1 1 = 5.8 x2 1 = 1.8 x1 2 = 1.9 x2 2 = 5.3 v2 1 = 4.6 v1 1 = 14.3 v1 2 = 5.7 v2 2 = 11.4 q1 = 7.7 q2 = 7 w1 = 4 p1 = 11.9 p2 = 12.9 π1 = 11.4 π2 = 11.4 Now let us suppose that one consumer’s tastes are different from what we initially supposed. Initially consumer 1 was presumed to prefer wheat. Now let us presume that consumer 1 does not prefer wheat and that his or her tastes, as between wheat and wool, are about the same. The other consumer’s tastes remain the same as we thought they were initially. But consumer 1’s utility function is now assumed to be U = (x1 1) (x2 1) . There are no other changes to the parameters of the model. Endowments remain the same, as do the production functions. w2 continues to be the numeraire and it is still set at 5. 3/4 1/4 3/4 1/4 1/4 3/4 5/8 2/8 2/8 5/8 33 For the sake of brevity I have omitted the system of equations needed to perform the calculations. w1= 3.2 x1 1 = 4.2 x2 1 = 3.4 x1 2 = 2 x2 2 = 4.9 p1 = 9.9 p2 = 12.4 When consumer 1 was originally thought to have a preference for good 1, he consumed 5.8 units of it. But when we realized that he does not prefer good 1 to good 2, his consumption of good 1 was only 4.2 units and the price of good 1 was lower as well (9.9 rather than 11.9). Prices changed in this model even though there was no change in the endowments of labour and wheat, demonstrating that the value of goods can change in response to a change in preferences even if there is no change in endowments. Since consumers help to determine relative prices and, in this sense, help to create value, this analysis indicates that there can be a consumer theory of rewards dealing with contributions made by consumer wants. The analysis has not, however, determined yet whether the theory will be egalitarian or inegalitarian, which we will take up in a moment. In constructing the consumer theory of rewards, one proceeds either by considering con- sumer wants and consumer activities in abstraction from their purchasing power or by consid- ering them in conjunction with their purchasing power. The former approach would not deny that consumer wants work in conjunction with purchasing power, but would just factor out their role. Consumer wants and purchasing power can be distinguished for analytical purpos- es, on the basis of the view that purchasing power does not fully explain the consumer’s con- tribution to relative prices, because consumer wants make a relatively autonomous contribu- tion. I will consider both lines of development in this article. No attempt will be made, howev- er, to determine which one of these ways is better than the other. It seems to me that that would be a worthwhile project for anyone who wanted to further pursue the consumer theory of rewards in the future. (D) AN INITIAL POSTULATE Suppose for the moment that we consider consumer preferences in conjunction with purchas- ing power. If we do so, then it can be argued that the consumer theory of reward cannot be an egalitarian theory, because unequal purchasing power leads to unequal consumer contribution to value, which makes consumers unequally deserving of rewards. As Gary Mongiovi writes, ‘agents with greater incomes demand, and therefore induce, greater levels of production than those with lower incomes, and so would be entitled to a larger reward.’34 The unseemly logic of the theory would then be that ‘”to him that has more, more should be given.”’35 But this slogan is only implied if the analysis takes as its starting point an unequal initial distribution of income and wealth. If the starting point of the reasoning for the theory is a postulate that every- one had equal initial amounts of income and wealth, then the theory would be egalitarian in that it would posit equal shares of a portion of national income. Opening the Door to More Equality 267 34 G Mongiovi ‘Distributive Justice: An Economist’s Perspective’ (2004) 13 The Good Society 45 at 47. 35 Mongiovi ‘Distributive Justice’ (note 34 above) at 46. 2 6 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Gary Mongiovi cautions, however, against making this postulate. ‘If the purpose of the exercise [formulating an equalitarian theory of reward] is to provide a guide to policy, we need to know how to proceed from where we now find ourselves: that is, from a position in which distribu- tion is unequal.’36 For various reasons, I think it may be necessary to construct the theory from a postulate of initial unequal income and wealth. The postulate ‘all men are equal,’ which sev- enteenth and eighteenth century liberals laid down, represented an even greater disjunction from their societies, which were even more extremely and rigidly unequal than our own, yet it still motivated historical change. To see how to proceed from where we are now, what we need to know is, not how our soci- ety would proceed, but how a just society functions. Its principles, not ours, should guide us. The critical question that needs to be addressed is this: do extreme inequalities of income nat- urally develop when economic dynamics are regulated by principles of justice? One way of find- ing the answer to this question is to inquire into whether highly unequal consumer contribu- tions arise from an initial equality of income and wealth. Such an assumption does not bias the analysis in either an egalitarian or inegalitarian direction. Suppose that consumer preferences really do make unequal contributions to value. One person with the same endowments, but greater production and consumption ambitions than another person, makes a larger contribu- tion to value that merits larger rewards. So, if consumer contributions really are unequal, they will still show up even after equal initial income and wealth is postulated. The postulate does not bias the analysis toward egalitarianism, so there should be no objection to it. But if we assume initial unequal purchasing power, it would bias the theory’s conclusions. Unequal con- tributions and rewards would follow almost automatically, so that we would not get a test of the nature of contributions. There is therefore nothing lost and much to gain from construct- ing the theory beginning with a postulate of initial equal income and wealth. The characteristics of a just economy, not of our own economy, are what we need to know if we want to know how to proceed from where we are now to a more just system. Hobbes, Locke, and Rousseau abstracted from their own societies and formulated a state of nature so that they could formulate a just society. Their own societies, fraught with a severe class system, made people appear to be very unequal. Under these circumstances, philosophers thought that they could only deter- mine if people are truly equal by abstracting from the class system that made them unequal. Once the abstraction disclosed their equality, classical liberals had a basis for condemning master-servant relations and asserting equal entitlement to rights of property. The ‘unrealistic’ abstraction from empirical class systems was precisely what they needed in order to provide guidelines for policy. Postulating an initial equal distribution of income and wealth is an analogous move with respect to the issue of equal contributions. By abstracting from prevailing sharp inequalities of purchasing power, it becomes possible to examine the logic of consumer contributions, free of the bias of unequal purchasing power, and thus to see whether consumer activities have an equal or unequal influence on the formation of value, and to act accordingly when devising distributive policy. Since the egalitarianism of the consumer theory of reward depends on a postulate of initial equal distribution of economic resources, Chris Armstrong and Peter Dietsch argue that the application of the theory in practice ‘depends on huge prior changes to the distribution of economic resources.’37 Dependence on this condition, which Dietsch believes is not likely to be achieved in the real world, 36 Mongiovi ‘Distributive Justice’ (note 34 above) at 46. 37 C Armstrong ‘Equality, Community, and the Production of Value’ (2004) European Journal of Political Theory 339 at 342; see also P Dietsch ‘Review of Ross Zucker Democratic Distributive Justice’ (2002) 14 The Review of Political Economy 397 at 398-399. renders the theory inapplicable to most real world countries. And if the theory was applied in an actual context, without equalizing the preexisting distribution of economic resources, the theory would not deliver egalitarian rewards. Because huge prior changes in the distribution of economic resources are unlikely in most places, he maintains that the theory will be strongly egalitarian only in restricted circumstances. Armstrong concludes that the social theory of rewards is not superior, as an egalitarian theory, to Rawls’s theory, which also can be egalitarian only in specific circumstances. There may be some misunderstanding over the requirements of the consumer theory of rewards. To construct the theory, which is to find out what a just economy morally entails, one has to postulate an initial equal allocation of economic resources. But to say that the theory must postulate an initial equal allocation does not mean that there must be an actual equal dis- tribution before its principles can be applied to an actual economy. The theory can be opera- tionalized without actually instituting a strictly equal distribution of income and wealth. Suppose that an egalitarian democratic regime is established by the adoption of a new set of amendments or the ratification of a new constitution altogether. Following the conclusion of the first economic period after its inauguration, just remuneration can be assessed by making a massive abstraction from contributions to economic value that come from higher or lower ini- tial endowments of income and wealth, rather than by making an actual, initial, massive, redis- tribution of economic resources. By making this abstraction from unequal initial purchasing power, the calculations of reward will necessarily be more egalitarian than they would be if the abstraction was not made. Calculating rewards this way conforms to egalitarian principles of remuneration; it does not reproduce morally questionable preexisting inequalities.38 In short, the construction of the theory requires a massive abstraction from initial high inequalities; the application of it, however, may not require an actual initial equal distribution of income and wealth. For this reason, I think that the abstraction is not unrealistic or inegali- tarian in its consequences. When Dietsch objects to the unrealism of postulating an initial equal distribution of income and wealth, his concern is not just that it is uncharacteristic of real world economies, but that its adoption in the future is unrealistic. Many analysts share the view that major states are not likely to implement extensive egalitarian redistribution in the future. The rise of American con- servatism and the collapse of communism in the former Soviet Union and Eastern Bloc lead many analysts to predict that major egalitarian changes will not occur in the future of advanced capital-based economic systems. But widespread repudiation of capitalism and acceptance of the mixed economy by populations in England and France just a few decades ago suggests that egalitarian democracy is not beyond the realm of possibility.39 Moreover, if the social welfare regime in the Netherlands and the corporatist welfare regime in Germany reduced income inequality by 30 to 40 percent in recent years, as Goodin and colleagues estimate,40 then egal- itarian norms could undergo further evolution in public opinion, leading to the eventual estab- lishment of a more egalitarian democracy in the future. Opening the Door to More Equality 269 38 One question for further research is whether one could do this in successive periods. After the second peri- od, the consumer’s purchasing power would be a combination of past unjust inequalities of income and wealth plus a reward for equal contributions that was adjusted so that initial inequalities in purchasing power were adjusted. Calculation of egalitarian rewards in the next period would depend on whether one could continue to factor out the ongoing contribution of the initial unequal endowments. If one could not, then Mongiovi is right that the theory could not be operationalized without an actual initial equal distri- bution of income and wealth devoted to consumption. 39 D Yergin & J Stanislaw The Commanding Heights (1998) at 22-25, 27. 40 R E Goodin, B Headey, R Muffels & HJ Dirven The Real Worlds of Welfare Capitalism (1999) at 185. 2 7 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E (E) SOCIAL THEORY, FORMS OF EQUAL CONTRIBUTIONS, AND EGALITARIAN ENTITLEMENTS Social theory, liberal theory, and neoclassical theory (really just an economic form of liberal the- ory) all conceive of individuals as self-determined persons, but social theory diverges from the other two theories with respect to the nature of self-determination. Liberal and neoclassical the- ories are more individualistic than social theory in that they accord social influences less weight in the formation of the self, its ends and actions. Though liberal and neoclassical theories are not entirely individualistic, they may be designated ‘individualistic’ in view of the greater weight that they place on subjective attributes, desires, and ends.41 Individualistic theories underestimate the role of social influences in the formation of the self and, therefore, also in the determination of individual actions and ends. Neoclassical theory of consumer behavior is weakened by deemphasizing social influences in the formulation of con- sumer behavior. To be sure, neoclassical economists responded to criticism of the overly sub- jectivist theory of utility maximization by developing a theory of ‘endogenous formation of preferences’ or, in other words, of social formation of preferences. But this theory does not overcome the deficiencies in the neoclassical understanding of social influence. It recognizes only arbitrary and capricious social influences (like peer pressure and bandwagon effects), neglecting more important influences flowing from system requisites which shape individuals in accord with the requirements of the system of commodity exchangers and producers. If the neoclassical theory of consumer preferences was selected for use in the theory of con- sumer rewards, the latter theory would not be egalitarian in its outcomes. The individualistic view of preferences stresses differences between consumer preferences that extend to the point of non-comparability. Individuals, understood in this way, will generate different amounts of value in the course of maximizing their utility. And those differences entitle them to very unequal amounts of rewards, on a theory of ‘dueness’ for economic contributions. But the social theory of consumer rewards which I propose is not inegalitarian, because it does not rely on the subjective theory of the consumer. The social theory of the consumer that I formulate has very different implications for con- sumer rewards. In contrast to the neoclassical theory of subjective preferences or the neoclassi- cal theory of endogenous formation of preferences I will argue that individuals have socially self-determined wants. By this I mean that individuals shape their wants, and their wants are shaped by and in accord with, the system of commodity exchangers and producers. Social analysis reveals that economic agents are subject to some of the same influences and conditions. As a result, they develop some of the same characteristics and undertake some of the same actions in creating economic value. By looking at the influences that are necessary to the exis- tence of the system and identifying the profound and systematic social influences that help to form individuals, social theory can find general equalities in individuals’ contributions to the creation of value, because the requirements of the system produce broad and deep influences affecting all alike. Using a social theory of consumer wants and desires (as well as of other attributes of the consumer), the theory of consumer rewards constitutes an egalitarian theory. Socially self-determined wants have several defining features. Although they cannot all be treated within this article, I would like to discuss some of them. To attain satisfaction from 41 By social theory I mean Hegelian social theories: GWF Hegel The Philosophy of Right (1952); DP Levine Economic Theory (1978) vol 1; and RD Winfield The Just Economy (1990). Some other kinds of social the- ories, of course, do not accept the view that individuals are self-determined. commodities produced by others, a person must want them. To want them, a person must con- stitute herself and her needs in such a manner that she can be satisfied by what other persons can provide. This kind of wants is relevant to the theory of consumer rewards because it makes a contribution to economic value. Needs that are shaped by the individual and by the system, so that they accord with what the market offers, constitute a necessary condition for the exis- tence of value. Commodities cannot have economic value, or price, unless they attract con- sumers and they cannot do the latter unless consumers are willing to shape their wants so that they can be satisfied by what the market provides. If consumers insist upon satisfying wholly subjective or psychological wants, commodity products will remain unsold and they will be valueless. Socially self-determined wants, therefore, make a contribution to value. It is, I sug- gest, a contribution people equally make. Everyone in a capital-based market system has wants of this sort and makes this sort of contribution. In this respect, consumers make an equal contribution to value. And this equal contribution makes them equally deserving of the value those help to create. Another feature of socially self-determined wants is that they are quantitatively and qualita- tively multiplied rather than fixed in kind and number. (Qualitative multiplication is a multi- plication of kinds.) Every consumer’s wants are approximately equal in that their wants are sub- ject to a quantitative and qualitative multiplication. Almost no member of a capital-based eco- nomic system is content with the biological minimum. Wants multiplied in kind and number is critical to the creation of value. In a capital-based market system, economic value is the value, not of a fixed and limited set of goods, but of a vast accumulation of commodities. The same can be said of value in a sustainable economy. The establishment of a no-(physical) growth economy, starting from the current enormous produc- tive capacity, still generates a vast amount of value, but does so without physical expansion of inputs or outputs. The vast amount of value characteristic of either a capital-based market sys- tem or a sustainable economy is impossible without consumer wants that have been quantita- tively and qualitatively multiplied. Value in a capital-based market system is capable of ongo- ing expansion through increases either in the physical or non-physical amounts of inputs and outputs. Expansion of value may also be possible in a sustainable economy, but it takes the form of growth without increases in physical magnitudes of inputs and outputs. Expansion of value either in a capitalist economy or a sustainable economy would be impossible if the wants of consumers were fixed in kind and number. Multiplied wants provide the motivational spur for the multiplication of commodities and the expansion of value. Multiplication of wants is, therefore, essential to the existence of value as self-expanding value. Since every consumer’s wants are subject to a quantitative and qualitative multiplication, each person is in this sense equally responsible for the existence of economic value. Corresponding to this form of equal responsibility for value, all consumers are equally respon- sible for the value that is generated by this kind of equality. Though they are not entitled to equal amounts of the total national income, because there are, in addition to their equal con- tributions, different contributions to value, such as in the amount and kind of their productive activities. The quantitative and qualitative multiplication of wants is not something that varies with consumers’ incomes, so its contribution to value does not differ depending with different con- sumers’ incomes. The quantitative and qualitative multiplication of wants is excited by expo- sure to the manifold products of the division of labour, rather than being a function of indi- viduals’ incomes. It forms a motivational bedrock for the multiplication of commodities and for the expansion of value that is relatively independent of differences between consumers’ Opening the Door to More Equality 271 2 7 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E incomes. While a person’s purchasing power may limit his or her effective demand, that pur- chasing power will not be translated into an actual purchase unless the person’s wants have been subject to quantitative and qualitative multiplication. The equality among persons’ wants with respect to the quantitative and qualitative multiplication of wants makes them equally entitled to the part of value that is due to this form of wants. (F) INDIRECT CONTRIBUTIONS AND INDIRECT ENTITLEMENTS Another form of contribution that consumers make toward the creation of economic value is more indirect than the two described above and it deals with a different aspect of socially self- determined wants. A consumer can indirectly contribute to the creation of economic value by influencing the preferences of other consumers. As already noted, consumer preferences can affect prices. By the same token, an individual who influences other consumers’ preferences plays an indirect role in their contribution to the creation of value. This influence can qualify as a contribution itself, despite being an indirect factor. If consumer preferences can contribute to the creation of value, then individual influences that help to form their preferences can also be contributions to the creation of value, though more indirectly. The reason for this is that almost any human contribution to the creation of value, direct or indirect, warrants remuner- ation on a principle of dueness for economic contributions. If we grant that social influences upon consumer preferences can contribute to the creation of value, then the question arises whether it has egalitarian implications when incorporated into the theory of consumer rewards. This depends upon whether individuals contribute equally or unequally to the formation of consumer preferences. To answer this question, we have to explore the relevant social influences. For this purpose we may focus on the social formation of the following feature of consumer wants: the fact that they are quantitatively and qualita- tively multiplied rather than fixed and limited. At first it seems unlikely that individuals have equal influence upon consumer preferences in this respect. A large advertising agency, such as J Walter Thompson, presumably has greater im- pact upon the multiplication of consumer wants than the average individual does. Yet I will argue that the average individual exerts a profound, though less obvious, influence upon the multiplication of kinds and numbers of consumer preferences, And I will argue, further, that, in this process, she or he has equal formative influence upon other consumers’ multiplicity of wants. The multiplication of wants that is significantly responsible for the multiplication and expansion of value arises within the social process of formation of wants. By way of illustration consider the formation of the desire for a Mercedes Benz. Influences which help to create this sort of want are systemic. Although advertisers affect the market for Mercedes, they may not be the sole or primary influence on the desire for these cars. The interest of the wealthy in Mercedes presumes the existence of a society with a keen interest in automobiles. Mercedes provide their owners a status symbol, which impresses rich, poor, and middle class alike. But the status symbol that it provides is so ubiq- uitous because the great bulk of consumers value cars. The great car culture of the United States accounts more for the interest in Mercedes cars than an advertiser could. This car culture is not just an epiphenomenon of automobile advertisements, but a way of life embraced by the great bulk of consumers in the US. Interest in cars is excited by exposure to them in the neighborhood, by neigh- borhood talk about cars, and by cultural practices regarding cars. Ultimately it is due to the system of consumers because neighborhood talk and practices are influenced by interactions between peo- ple of different neighborhoods. Interactions between members of the system of commodity exchang- ers spread the virtues of cars far and wide. This case suggests that the multiplication of wants occurs through the interactions of a system of individuals. Because the system of commodity exchangers is profoundly responsible for multiplying the kinds and numbers of preferences, credit for this is spread equally among individuals. They are equally system-members and it is as system-members that they have their most profound influence. On a principle of remuneration for economic contributions, the account of the indirect formation of the multiplication of the kinds and number of wants supports an equal distribution of the value generated by the action of these socially self-determined prefer- ences upon prices. The argument that individuals have an equally strong mutual influence on each others’ pref- erences — and that this justifies a certain distributive equality — is ‘highly speculative’ and ‘less interesting,’ according to Peter Dietsch, because it ‘depends on equal income and wealth to start with,’ which is an ‘unrealistic premise.’42 I have argued above that it is not unrealistic or unwar- ranted to postulate initial equal income and wealth. If that argument is correct, it follows that it is not unrealistic or uninteresting to argue that individuals have an equally strong mutual influence on others’ preferences. Deutsch does not doubt that there would be relatively equal formative influence on preferences if there were an initial equal allocation of income and wealth. If this premise is realistic — relative to the nature of a just economy — then the rest of the characteristics that I have ascribed to this order are not highly speculative. Equally strong mutual influence on individual preferences would follow and equal indirect entitlements for value created thereby would also follow. (G) ANOTHER FORM OF EQUAL CONTRIBUTION Consumers have another equal feature that contributes to the value of commodities. One of the most important causes of the subsistence of value is the process of ongoing circulation of com- modities and money. I argue that consumers equally accept the system goal of ongoing circu- lation of commodities and money and that, by doing so, they make equal contributions to the subsistence of value through the circuit, which entitles them equally to shares of part of the value sustained and expanded by this process. According to neoclassical economics, consumers are preference maximizers. That is their only goal. Contrary to this view, Adam Smith asserted that all individuals have a goal of having money at hand.43 The goal of having money at hand has no meaning or purpose in itself, but derives sig- nificance from the fact that it is necessary for the circulation to continue. Therefore, the goal of having money at hand is, inferably, a tacit acceptance of the system goal of ongoing circulation of commodities and money. General acceptance of this goal reflects centuries of accumulated expe- rience with the circulation of commodities and money, and societal acceptance of the goal repre- sents a tacit recognition that payment for produced goods is a necessary condition for the ongo- ing circulation of commodities and the reproduction and expansion of capital. Moreover, the exchange cannot be written off as reflecting ideological hegemony or domination, because the cir- culation of capital is necessary even in a socialist market system. Unlike the neoclassical theory of consumer behavior in which preference maximization appears as subjective choice, self-seeking in accord with the goal of ongoing circulation of capital is a form of social self-determination. The individual has this goal through a social self-determination. Because individuals subsist within a system of commodity circulation, no one will give the indi- Opening the Door to More Equality 273 42 Dietsch ‘Review’ (note 37 above) at 398-399. 43 A Smith The Wealth of Nations (1937) at 22. 2 7 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E vidual anything economically valuable without receiving valuable consideration in exchange. The individual assimilates a goal of ongoing circulation because he or she must do so in order to sub- sist within a social process dependent upon ongoing circulation of commodities. Self-seeking in accord with the goal of ongoing circulation is one of the individual’s most important contributions to the subsistence of value through the circuit, and in this sense to the creation of value. Patterns of accountability for this kind of self-seeking therefore relate directly to the problem of determining individuals’ dueness for value contributions, that is, for determin- ing the amount of value that should be distributed to them because its creation is due to them. The fact that the individual has a goal of ongoing circulation of commodities is partly due to every other member of the process. As determinants of her having this goal, they are also a fun- damental source of her contribution to the value of commodities, for her actions in accord with this goal contribute to the subsistence of value and, therefore, to the creation of value. These other persons, therefore, have an indirect entitlement to a share of the value that accrues to her in the course of her socially self-determined self-seeking. This makes property a right to some significant equalization of value. In what way do they all contribute to the fact that she has and pursues a goal of ongoing cir- culation? When the individual approaches the world of commodity exchange with the intent of acquiring a desired good, no one will give it to her without receiving another good or money in return, because each knows that he can’t survive and flourish in a process of ongoing circu- lation unless he makes this stipulation. And this is an exceptionally strong inducement to the consumer to have a goal of having money at hand — the prime condition for the ongoing cir- culation of commodities and money. In order for this indirect contribution to be an equal contribution (deserving of equal rewards), the influence of each other person upon the consumer would have to be equal. Is the contribution that others make to her having the goal of having money at hand an equal con- tribution? The fact that a wealthier person declines to turn over goods without consideration is no more or less responsible for her assimilation of said goal than the fact that a poorer person makes a similar stipulation for entering into exchange with her. It is clear, then, that everyone else has a relatively equal responsibility for the fact that the individual has a goal of ongoing circulation of commodities and money. The people exercising this indirect influence have an indirect entitlement to equal shares of part of the value that accrues to the subject in the course of her market activities, specifically, the part of the value due to their indirect influence. This has implications for Spragens’ contention that purchasing power is the major consideration in considering a consumer’s contributions to value. The indirect influence of the consumer on other consumers just discussed does not depend on differential purchasing power. (H) DISTRIBUTIVE EFFECTS The social theory of rewards for contributions yields a right to an equal portion of part of the income that accrues to every other person in the course of her or his market activities. At this point in the development of the theory, I have not yet fixed the redistributable portion, except to say that it is clearly a substantial amount, in view of the enormous contribution that consumers make to the creation of value. We can get a sense of the theory’s potential distributive effects by con- sidering how inequality is affected by its adoption in two sorts of economies, one with a less unequal economy, another with a more unequal economy. Assume that the size of the redistrib- utable portion is 10 percent of each person’s income. This means that every citizen shall pay 10 percent of her or his income and that 10 percent of the income of every person will be distributed in equal amounts to every person. As the first half of Table 1 illustrates, this kind of redistribu- tion can be effective in promoting equality in the less unequal economy. As a result of this redis- tribution, the income of the poorest 5 percent rises by 115 percent, the income of the next 15 per- cent of the population rises by 35.5 percent, the income of the second quintile rises by 12.2 per- cent, the income of the third quintile rises by 3.2 percent, while the fourth quintile experiences minimal reduction in income (only -1.4 percent), the next 15 percent of the people experience a moderate reduction in income of -4.5 percent, and the income of the richest 5 percent declines by -7.7 percent. Under this plan, a substantial increase in income equality is achieved at small cost to the middle class and without severe reduction in the position of the top 5 percent of the popula- tion. Only 20 percent of the population incurs noticeable loss of income and it is not a large loss compared to the very considerable gains they get from social cooperation. Opening the Door to More Equality 275 TABLE 1 DISTRIBUTIVE CONSEQUENCES OF THE SOCIAL THEORY OF CONSUMER REWARDS, ASSUMING A 10% TAX* Distributive effects in a less unequal economy Bottom Next Next Next Next Next Top Percentile 5% 15% 20% 20% 20% 15% 5% Share of Total Income 0.4% 3.3% 9.0% 15.1% 23.3% 27.3% 21.6% 100.0% Number of Persons 1 3 4 4 4 3 1 20 Total Income 4 33 90 151 233 273 216 $1,000 10% Tax 0.4 3.3 9 15.1 23.3 27.3 21.6 $100 Redistributed on Per Capital Basis 5 15 20 20 20 15 5 $100 Income after Tax and Transfer 8.6 44.7 101 155.9 229.7 260.7 199.4 $1,000 Percentage Increase in Income 115.0% 35.5% 12.2% 3.2% -1.4% -4.5% -7.7% Top 5%/Bottom 5% (pre-tax) 54 Top 5%/Bottom 5% (post-tax and transfer) = 23 Distributive effects in a more unequal economy Bottom Next Next Next Next Next Top Percentile 5% 15% 20% 20% 20% 15% 5% Share of Total Income 0.2% 2.0% 5.4% 9.1% 26.9% 31.5% 24.9% 100.0% Number of Persons 1 3 4 4 4 3 1 20 Total Income 2.0 20.0 54.0 91.0 269.0 315.0 249.0 $1,000 10% Tax 0.2 2.0 5.4 9.1 26.9 31.5 24.9 $100 Redistributed on Per Capital Basis 5 15 20 20 20 15 5 $100 Income after Tax and Transfer 6.8 33.0 68.6 101.9 262.1 298.5 229.1 $1,000 Percentage Increase in Income 240.0% 65.0% 27.0% 12.0% -2.6% -5.2% -8.0% Top 5%/Bottom 5% (pre-tax) 125 Top 5%/Bottom 5% (post-tax and transfer) = 34 * I am grateful to KS Sastry for providing the first half of this table: Distributive Effects of the Social Theory of Rewards in a Less Unequal Economic Society. 2 7 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E In the more unequal economy, the implementation of the egalitarian right achieves even more dramatic improvement in income equality. The lower three quintiles all make substantial increases of income, with the bottom 5 percent receiving a whopping 240 percent increase in their income, while only the highest quintile suffers substantially decreased incomes (-8 percent for top 5 percent and -5.2 percent for the next 15 percent), which does not seem large next to the benefits that they derive from social cooperation. III Social Ethics of Economic Community (A) INTRODUCTION The ethics of economic community can also help us to open the door to more equality. The central idea of this ethics is as follows: when a number of individuals are united for the pur- suit of some end that they hold in common, they should be able to share in the attainment of that end. Although the ethics of economic community is controversial, this main theme is not particularly problematic. It has strong intuitive appeal, garnering support from people of diverse ideologies. Various theorists, ranging from classical liberals (Locke and Kant, whom some libertarians venerate)44 to social theorists (Hegel and Charles Taylor) give their analyt- ical support to it. The ethics of economic community faces other difficulties. These problems relate to the appropriateness or relevance of communal ethics to capital-based market systems. It is quite clear that an association would have to be a community before it could qualify for regulation by the ethics of community. This is because community is the moral basis that invokes the dis- tributive rule of the ethics of community. The contention that everyone should share equally in the ends of association is without foundation if the association is not a community. The com- munal requirement for applying the ethics of community seems to be an insuperable barrier to applying it to capital-based market systems, for these systems are not communities in the view of most analysts. Some theorists point out sub-communities within the modern economy. Others point to the surrounding community in the form of a political system with common ends. Still others say the economy is contained within a communal ‘social capsule.’45 But not even the most ardent communitarians like Amitai Etzioni claim that capital-based market sys- tems are communities. Scholars understand the capital-based market system as a competitive, rather than commu- nal, system. Some tend to see it as atomistic. Others prefer to say it is individualistic. Still oth- ers qualify its individualism, saying the market and the division of labour are conditions of interdependence rather than of pure self-reliance. But even when qualified by interdependence, scholars do not generally regard the capital-based market economy as a community. Recognition of interdependence does not lead them to pronounce it a community. Most scholars who position themselves on the matter maintain that market interdependence is not communal because it lacks the common action for common ends essential to community.46 Understanding the economy as a condition of individualistic interdependence rather than of 44 R Nozick Anarchy, State, and Utopia (1974) at 32, 337 fn 4. 45 A Etzioni The Moral Dimension (1988) at 212, 199-216. 46 C Armstrong ‘Equality’ (note 37 above) at 343; V Chibber ‘Individualism, Community, and Distributive Justice’ (2004) 13 The Good Society 62 at 63-65. communal interdependence leaves scholars indisposed toward egalitarian rules of distribution of income, because they can’t see the communal basis for invoking such rules. While capital-based market systems are evidently not fully communal, no one has proved that they do not contain a dimension of community on a systemwide scale. The existence of this dimension remains an open question. This possibility deserves further study, because it ful- fills the prerequisites for applying communal ethics of distribution to these systems. Community is more often contrasted with markets than identified with them, because it usu- ally involves some sort of central direction or authority through which people implement their common purposes, whereas the market is composed of decentralized exchange relations though which people pursue alternate goals.47 Hierarchical medieval community, twentieth century communism, and liberal political community exemplify communities with central authority. Community can, however, take a decentralized form, such as general agreement or common character. So the market’s decentralized character does not preclude its having a dimension of community. From this we can learn something more about the kind of object that the search for economic community is looking for. It seeks a dimension of community within a decentral- ized system. For that to exist, it would have to be possible for a system of individuals to engage in common action for common ends through decentralized interactions. There is an intuitive basis for the notion of a dimension of community within capital-based market systems. As individuals compete in the modern market economy, they simultaneously stitch together something of a community by engaging in common actions for certain common ends. Each one of them is involved in doing things for other people that they would otherwise have to do for themselves, and that meets the definition of common action. Arguably, all eco- nomic agents have a common goal of preserving and expanding capital, because all of the goods and services that they desire hinge on the ongoing circuit of money and commodities, that is, the circuit of capital. The common actions sustaining the circuit of capital are generated by socially influenced but individually willed actions. An element of cooperation arises between firms because they have to adjust their production processes to what other firms provide and need. Though opposed in a number of ways, capital and labour also unite to produce and gain portions of social wealth. Mutual adjustment is required for joint production. Labourers and managers of capital acquire skills and pattern their work for the efficient production of goods and capital. Moreover, since profits depend on sales, production and consumption are interrelated as well. While producers orient output toward the satisfaction of consumer wants, they also shape those wants by adver- tising their products and by other means. This intuition suggests that capital-based market systems have a communal dimension. If so, this kind of system has the qualification for being regulated by the ethics of community, to some significant extent. Because this ethics morally warrants equal distribution of relevant resources among community members, capital-based market systems should be subject to this rule to the extent that they are communities. From the intuitive account just given, it is apparent that individual actions and ends in the economy have an inter-subjective inner structure. By that I mean the inner composition of the person changed in response to the requirements for self-seeking under conditions of mutual dependence. For example, labour acquires skills and patterns her work for the efficient pro- duction of goods and capital, because she cannot gain a share of wealth unless she unites with Opening the Door to More Equality 277 47 On the nature of markets, see CE Lindblom Politics and Markets (1977) at 33-51. 2 7 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E capital in a process of commodity production. The inter-subjective inner structure of the per- son is noteworthy because it constitutes a nexus between individual action and ends and the actions and ends of others. Instead of being substantive, that is, independent and self-existent, individual action and ends, therefore, are dependent parts of common action and ends. By way of illustration, the nature of the skills acquired, the labour performed, and the education under- taken — are all characteristic of the inter-subjective inner structure of the worker, whose labour forms common action with other workers and with the owners and managers of capital. And only insofar as it constitutes common action does it constitute productive action. Neoclassical economic theory does not grasp the dimension of community in the economy, partially because it passes over the internal changes which individuals make in response to the requirements for self-seeking within the circuit of capital. As mentioned above, neoclassical theory subscribes to conception of the self as having a subjective, rather than inter-subjective, structure of the self. On this basis it is not able to grasp the nexus between individual action and ends and common action and ends, which also renders it incapable of recognizing the exis- tence of economic community. Instead it renders a stylized portrait of the economy as a highly individualized process, with market outcomes resulting from the choices of largely self-deter- mined decision makers (producers, consumers and resource holders).48 (B) COMMUNITY AMONG CONSUMERS AND PRODUCERS The next stage of argument is to elabourate upon the preceding sketch. To demonstrate a dimension of community in the economy, one has to show that — despite the existence of dif- ferent categories of economic agents — the members of the economy share some attributes, actions, and ends. I will argue that consumers, producers, owners of capital, and managers of it share some fundamental attributes in common and they engage in common action toward a common end, even though they belong to different categories of economic agents. To begin with, let us consider the relationship between consumers and producers. According to neoclassical economic theory, consumers and producers hold alternative behav- ioral goals: preference maximization and profit maximization. The engagement of consumers and producers in separate actions in pursuit of alternative goals would appear to refute the contention that they engage in common action toward a common end. But does it really? While consumers and producers pursue alternative goals through separate actions, could they not also be engaged at the same time in other actions toward other ends with communal features? The neoclassical portrayal elides these correlative communal actions and ends, but they can be restored to view. Preference maximization and profit maximization each has a correlative action that reveals common action among consumers and producers. A producer does not just engage in profit maximization. She also produces useful and desirable items for the benefit of consumers. A con- sumer, meanwhile, does not just engage in preference maximization. He also pays money for the useful or desirable objects acquired from producers. Because profit maximization includes the production of use-values, it is designed to give consumers what they want. Likewise, because preference maximization includes the payment of money, it is designed to give produc- ers what they want. Seen in relation to their correlative actions, preference maximization and profit maximization meet the qualification for common action in markets. Common action in markets is defined by the conjunction of two sorts of actions: (a) an 48 Debreu Theory of Value (note 31 above). action by one person for another person that the second person would have to do for himself if the first person did not do for him and (b) an action by the second person for the first per- son that the first person would have to do for himself if the second person did not do it for him. Payment of money by the consumer to the producer and production of goods by the producer for the consumer unite preference maximization and profit maximization in common action. These two categories of maximizing behaviors, therefore, cannot be understood simply as alter- native behaviors that separate consumer behavior from producer behavior. Granting that consumers and producers engage in common actions, what about common ends? In neoclassical economics, the market system is defined as a mechanism for the allocation of scare resources between alternative ends. By definitional fiat, common ends are precluded. A better place to look for ends, I suggest, is in the process of circulation of capital. The owner of capital seeks to exchange money for commodities. She then combines them as productive capital for the production of commodities for sale. The various actions of the capi- tal owner have a common underlying goal: to acquire more economic value. Taken together these actions constitute an expansion of value, but the acquisition of value is not a final goal, it is just a means of renewing the circuit. It returns the capital owner to her starting point, which leads to multiple repetitions of the circuit. Production, then, is not simply production, but part of a larger circulatory process. Consumer purchases help owners and managers to complete the circuit of the firm’s capital. Because consumer payment is a necessary link that completes the producer’s circuit, the two constitute common action. Consumer behavior is not ordinarily conceived of in this way. Consumers are said to make independent decisions about the kinds and quantities of goods they buy. These decisions may in turn injure the rejected producers rather than complete the circuit of their capital. For this reason, consumer behavior is generally not understood as action taken in common with producers. But consumers would have to perform the behavior of profit max- imization if producers did not do it. It is for this reason that they induce producers to become profit maximizers by making profit maximizers better off than profit minimizers. Producers freely accept these action directives from consumers because they can become better off that way. Since producer activities are made to serve consumer goals through inducements offered by consumers, profit maximization forms a common activity with preference maximization, not simply an alternative to it. Up to this point, we have considered bilateral relationships between the consumer and the circuit of individual capital. But in order to demonstrate a dimension of community on a sys- temwide scale, we have to identify a broader pattern of common action and ends than just bilat- eral ones. Every consumer does not relate only to the firms from which she makes her pur- chases. The capital of each firm, from which she purchases, is directly or indirectly related to that of other firms. The interdependence of producers is systematic. Exchange links them with every other owner of capital. As a result, every consumer interrelates with those other firms and, therefore, with the system of circulation. The systemic interdependence of individual cir- cuits implies a correspondingly systemic scope of common action within the economy. Consumers and producers have alternative ends, as neoclassical theory maintains, in the sense that consumer 1 may not want good X produced by producer 2 and seeks instead good Y produced by producer 3. This condition of alternative ends precludes the existence of com- prehensive community within the economy. But it does not preclude the existence of a commu- nity overarching the pursuit of these alternative particular ends. Relatively independent actions and ends are subsumed under more general common actions and ends: the ongoing process of circulation of capital. Although consumer 1 purchases producer 3’s product, rather than produc- Opening the Door to More Equality 279 2 8 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E er 2’s product, he nonetheless shares an overarching common end: the preservation of producers’ capital. This goal glimmers through the consumer’s actions when he pays money for goods received, because such payment is a general need of all producers, not just of producer 3. (C) COMMUNITY AND EQUAL SHARES OF PART OF NATIONAL INCOME According to classical liberal theory, people unite for the sake of attaining a certain common goal: the goal of living under conditions where each person can define and pursue his or her own ends. These conditions are the conditions of right or ethically valid freedom. In other words, people unite in civil society because it is their common will to live under conditions of right. In the classical liberal theory, the presence of community with respect to living under con- ditions of right is the moral basis for the equal entitlement to rights. It entitles every member of civil society to the right of property. Property is a matter of right, not just a matter of the good, because it is the freedom of the person to define and pursue her own ends in relation to and over external things. Classical liberal theory does not, however, maintain that people are entitled to equal amounts of property. While defending a communal basis for the equal right to property it denies a com- munal basis for the right to equal amounts of property. There is a union with respect to the gen- eral conditions needed for the free choice of ends, but not a union with respect to the amounts of goods a person should have. The sphere in which goods are pursued, which we call an econ- omy, is characterized as a disunified multitude. ‘Men have different views of the … ends of hap- piness,’ Kant states, ‘so that as far as happiness is concerned, their will cannot be brought under any common principle.’49 The disunified multitude with respect to the pursuit of the good can- not supply the necessary communal basis for a right to equal amounts of property. Owing to the absence of economic community, ‘the utmost inequality of the mass in the degree of its pos- sessions’ is admissible, Kant maintains. 50 The classical liberal principle of the distribution of property is mistaken, in my view, because it is based on a one-sided account of the economy. When Kant ascribes unqualified disunity to the economy, he neglects the presence of a dimension of community, which can supply com- munal basis for equal distribution of part of national income. He believes community is limit- ed to what may be called a procedural community, where citizens are agreed that everyone should be able to choose his or her own ends. But citizens also agree on a substantive end, the goal of creating and acquiring wealth. Their common will to create and acquire wealth estab- lishes a substantive community in the economy which morally grounds a right to equal shares of part of national income. Contrary to the view that everyone in civil society seeks wealth, it is sometimes argued that some people just seek subsistence and other people just seek comfort. But most members of cap- ital-based market systems exhibit larger numbers and kinds of needs than this view suggests. Most people in these systems do not seek mere biological subsistence. There are few who seek to subsist on a biological cocktail of the minimally necessary nutrients for survival. Even with respect to typical subsistence goods like food, the lower strata have preferences, for example between different sorts of bread. And their wants are not usually limited to classical subsistence goods. They manifest preferences for various kinds of processed foods and other goods. Most 49 I Kant ‘On the Common Saying: “This May be True in Theory, But it Does not Apply in Practice”’ in Hans Riess (ed) Kant’s Political Writings (1970) 61 at 73-74. 50 Kant ‘On the Common Saying’ (note 49 above) at 75. people in a capital-based market system clearly have a wide range of needs: needs for televi- sions, radios, a telephone, McDonald’s hamburgers, CDs, tapes, expensive sneakers and other fashionable garb, among other things. Each person has a range of wants for things beyond fixed needs for subsistence, but he or she may differ from other persons in some of his or her specific preferences. The fact that some of the wants that people have differ from those of other persons does not however confirm Kant’s view that people differ in the ends of happiness or that there cannot be any economic community. The range of wants just mentioned is not encompassed by needs for the naturally occurring surplus of nature or by the products of limited commodity production. It entails wants that are wants for social wealth, for a vast accumulation of commodities produced by a system of wealth. Reflective of the need for wealth, most people in the United States do not engage in production of use-values for self-consumption, which would supply a much more restricted range of goods. Rather, they seek a money wage that gives them command over part of the world of commodities, that is, over social wealth. Since the members of a capital-based market system all seek wealth in this sense, there is a community of ends among them, includ- ing the lower strata. Against the claimed existence of economic community, one might argue that people pursue a great variety of different ends, not just the end of wealth. You use your wealth to buy a house because you like suburban living; I rent an apartment because I prefer urban living. But the goal of seeking wealth permeates every other goal of economic agents, whatever else they seek. Both an apartment and a house are forms of social wealth, bought and built with particles of social wealth; so they are not merely forms of natural shelter. The common goal of wealth, permeating different particular ends, substantiates a claim that a dimension of community pervades the economy. To be sure, many people are content with a comfortable living and they may recoil from the garishness and materialism of those they view as seekers of wealth. But what many people call a desire for comfort is really a desire for wealth, properly understood. The desire for wealth is not best understood as a desire for a limousine or a penthouse. It should be grasped as the sort of desire that has been multiplied in kind and number and that cannot be satisfied without a social production process capable of producing an immense accumulation of commodities. Let us take a look at the seemingly modest requirement for ‘comfort.’ In the United States today, the desire for comfort encompasses desires for things like automobiles, refrigerators, toaster ovens, televisions, stereo equipment, processed foods of manifold varieties, microwave ovens, clothes of considerable variety, furniture of various sorts, travel vacations, restaurants, computers, books, leisure for study or recreation, college and graduate education, movies, inter- net connections, highly advanced medical treatment. But these are in no sense modest wants, wants that can adequately be deemed ‘comfort.’ Satisfying wants like these requires products that result from a prodigious system of wealth generation, whose products are parcels of social wealth. The fact that an immense accumula- tion of commodities is needed to satisfy quantitatively and qualitatively multiplied wants shows how little the term ‘comfort’ conveys about the average person’s objectives in economic socie- ty. Wealth is, quite clearly, the only appropriate term to designate the amount and diversity of stuff under consideration. The desire for this, which is pervasive in capital-based market sys- tems, is the desire for wealth. So the desire for wealth is a common desire. Since everyone in a capital-based market system seeks wealth in the sense just described, a community of economic ends exists within the economic system. The dimension of economic community indicated by commonalities in economic ends supplies a communal basis for demanding equal distribution of part of national income. But it does not require equalization Opening the Door to More Equality 281 2 8 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E of all national income, because the economy is not entirely community, for although everyone seeks wealth they also seek different particular use-values. If, as Kant argued, community with regard to conditions for choosing one’s own ends equally entitles members to the right of prop- erty, then union for the pursuit and acquisition of wealth must entitle them to equal distribu- tion of part of national income, proportionate to the extent of community. The members of a capital-based market system are united with respect to more than just employment or a minimally decent income. They are united with respect to a larger share of the economic resources of society. They are united for the sake of the preservation and expansion of the capital of the firm and of the system in its entirety. Given the interdependence of indi- vidual pursuits of wealth, there is a unity among them with respect to all of the capital wealth of the nation that is used for consumption. Labour has an interest, not only in a wage, but in all of the capital wealth of the firm and of the nation. Consumers seek not only to satisfy pref- erences but also to satisfy a multiplication of kinds and numbers of preferences, so they have a common desire for wealth. Analysis of their wants revealed that they have not only a common denominator in wanting at least a minimally decent level of consumption, but also a common denominator with respect to the rest of consumption. This common denominator consists in the quantitative and qualitative multiplication of all consumers’ wants, which implies that they have a common desire for wealth. The community of ends is, therefore, much broader than the- orists of the welfare state recognize. The consumers’ goal of seeking wealth cannot be achieved without their participation in a system of commodity exchange and production based on capi- tal, which has a dimension of common action, since individual circuits of capital are intercon- nected. Individual action in pursuit of wealth therefore exhibits a dimension of common action. The multiplication of wants unites consumers with producers in the circulation process, because this process continues and expands the circulation of capital. Since economic agents are united with respect to many more economic resources than mod- ern liberal theory realizes, they must, correspondingly, have an equal entitlement to a larger part of economic resources than such theory posits. The unity of capital owners, labourers, and con- sumers for the sake of the creation and acquisition of capital gives every member an equal enti- tlement to an equal share of part of the national income devoted to purposes of consumption. They are not just entitled to employment or subsistence, since their unity is not limited to the common pursuit of employment or subsistence. Given the interdependence between individual pursuits of wealth, there is a unity between them with respect to all of the capital wealth of the nation used for consumption. Claims based on membership in this sort of union extend to all of the capital wealth of the nation that is directed toward consumption and that is created by community. This membership does not, however, justify a strict equalization of income, because the overarching unity of economic actors includes a lot of relatively independent action for somewhat separate ends. (D) DO PEOPLE BUY CHOCOLATE BECAUSE THEY LIKE IT? The notion of a common goal of acquiring and consuming wealth is ‘very generalized’ and ‘insubstantial,’ according to Chris Armstrong.51 The alleged dimension of community is there- fore also insubstantial and it cannot supply the moral warrant for egalitarian regulation of income distribution in capital-based market systems, he argues. Furthermore, the desire for 51 Armstrong ‘Equality’ (note 37 above) at 343. wealth is unreal. ‘Personally, I usually buy chocolate because I like it,’ he says, not because I seek wealth.52 Intuitive appeal is, admittedly, all on the side of Armstrong’s point. And it would seem to form a basis for a powerful critique of the ethics of economic community. If Armstrong is right in suggesting that people buy chocolate simply because they like it, then there is no common desire for wealth, in which case a major foundation for the theory of economic community is lost, along with the redistributive ethics of community that is built on top of it. Because the argument for the existence of community hinges on the existence of a common desire for wealth Armstrong’s critique needs to be considered. For this reason we find ourselves is the rather awk- ward position of having to undertake a rather extended excursus on chocolate. Although Armstrong has intuition on his side, the proper study of needs in capital-based markets requires abstraction. The issue calls to mind Adam Smith’s statement that one can only appreciate the divided nature of manufacturing through theoretical analysis, because ‘we can seldom see more, at any one time, than those employed in a single branch.’53 In contrast, con- sumer goals, as Armstrong conceives of them, are entirely concrete and particular, devoid of any abstract or general feature substantial enough to constitute a community. Armstrong’s point that people buy chocolate because they like it is seemingly self-evident, but it actually reduces a complex social phenomenon to a simple datum and underestimates the importance of the abstract and general features of desire, which form a real component of its nature, just as the division of labour is an essential aspect of labour. The desire for chocolate or the want for chocolate is an instance of the desire for wealth rather than the natural need for subsistence. The need for subsistence is a need for food, clothing, and shelter in their most basic forms, as required for survival. In contrast, the desire for wealth may be defined as a desire that has been multiplied in two ways: it is multiplied, qualitatively, in terms of the kinds of things that individuals want to consume and, quantitatively, in regard to the amounts of things they want. There is no assignable limit upon the kinds and numbers of things that people who desire wealth can want, whereas people who seek subsistance seek a fixed and limited set of substances. Like the desire for other objects of wealth, the desire for chocolate has been multiplied in kind and number and it continues to increase without apparent limit. Total US consumption of chocolate stood at 3.3 billion pounds in 1999 and per capita con- sumption rose above 11.9 pounds.54 At these levels, the desire for chocolate has clearly been multiplied in amount and it is widespread too: 84% of households consume it, 72% more than once a week.55 By the 1980s Hershey’s found enough desire there to sell 25 million kisses a day.56 The kinds of desires for chocolate have also been subject to multiplication. The desire for chocolate candy has been diversified into desires for solid chocolate, solid chocolate with inclusions, enrobed or molded chocolate with bakery-product centre (eg, chocolate covered wafers), enrobed or molded with candy, fruit, nut, or granola centre (eg chocolate covered cher- ries), panned (eg chocolate-covered raisins), and assortments of the above types or others. Between World War I and World War II, more than 30,000 varieties of chocolate bars were Opening the Door to More Equality 283 52 Armstrong ‘Equality’ (note 37 above) at 343. 53 Smith (note 43 above) at 4. 54 R Lopez Chocolate: The Nature of Indulgence (2002) at 109. 55 RM Rees ‘Bite-Sized Marketing: Candy Bars’ in A Szogyi (ed) Chocolate: Food of the Gods (1997) 125 at 128; The Chocolate Market (2001) at 31 Web publication by MarketResearch.com Academic: www.aca- demic.marketresearch.com/product/print/default.asp?. 56 M Morton and F Morton Chocolate: An Illustrated History (1986) at 94. 2 8 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E introduced.57 Desire for chocolate candy was subsequently differentiated into desires for choco- lates distinguished by size and packaging, as well as by seasonal and non-seasonal characteris- tics. It has been multiplied by differentiating it into desires for four categories of chocolate prod- ucts: chocolate candy, chocolate chips/baking chocolate, powdered cocoa mixes, and chocolate syrup/dessert toppings. It has also been differentiated and multiplied into desires for many other product types that contain chocolate but whose primary definition is not chocolate, such as cake mixes, frostings, and cake decorations; ice cream, puddings, and other deserts, and cocoa-fla- vored cereals. In fact, the desire for chocolate has been distinguished into so many types that it would take more than five pages to list the top brands and products of selected marketers in the US chocolate market alone. A single commercial supplier lists 2,000 types of chocolate.58 With the multiplication of kinds and numbers of desires for chocolate, the desire for chocolate has the character of a desire for wealth. The number and kinds of chocolate products are wealth in the sense that they clearly form part of a vast accumulation of commodities, which is what wealth is. And the desire for them is a desire for particles of social wealth. The kinds and numbers of these desires are too great to be classified as either subsistence wants or comfort. Another feature of a desire for wealth that the desire for chocolate exhibits is that it expands and increases. ‘Per capita consumption of chocolate candy has risen steadily over the past few years, growing 13% between 1994 and 1998, from 10.8 pounds to 12.2 pounds’.59 New desires keep arising in relation to new products that have been innovated. In 1999-2000, Hershey’s alone introduced nine new products: Kit Kat Big Kat, line extensions to Hershey’s bites — York Peppermint, etc — Novelty Dr Seuss’s How the Grinch Stole Christmas packages, Whoppers, Cinnamon Chips, syrup in Hershel the Cow-shaped bottles, and Health Sundae Syrup, and Fudge Cookie Crunch Shell topping. Twenty percent of ‘Hershey’s recent sales come from new products’.60 It is in the nature of wealth that it expands and increases. It is self-expanding value, rather than just value that gets reproduced at an arbitrarily assigned level. As an expanding desire, the desire for chocolate has the quality of the desire for particles of wealth. We can also see that the desire for chocolate is a desire for wealth when we look at the process by which this desire is formed. Ideas play a role in the expansion of a person’s desires, but these ideas may not all originate within the self. As Hegel explained, the multiplication of desires is caused by the division of labour, because the division of labour produces a multitude of products that excite a multiplicity of desires. The members of the system of commodity pro- ducers need to produce wealth, a vast accumulation of commodities, if they are to expand value and to attain wealth themselves. Desires stimulated by producers of wealth are desires for par- ticles of wealth. The chocolate industry exposes prospective consumers to a multiplicity of chocolate products which excite interest in these products. It does so by displaying the product in widely distributed retail sites, and by extensive advertising in magazines, newspapers, televi- sion, radio, movies, and on the Internet. The industry assures its own growth by establishing ‘almost infinite points of sale’ where desires are excited.61 With an estimated ‘2 million places where confectionary can be purchased in the United States,’ the opportunities for exciting inter- 57 Rees (note 55 above) at 127. 58 The Chocolate Market (2001) at 31 Web publication by MarketResearch.com Academic: www.academ- ic.marketresearch.com/product/print/default.asp?. 59 The Chocolate Market (note 58 above) at 31. 60 Rees ‘Bite-Sized Marketing’ (note 55 above) at 128. 61 The Chocolate Market (note 58 above) at 68. est are truly vast.62 Sites for exposing consumers to chocolate products have expanded out from candy stores to supermarkets, gourmet and specialty stores, convenience stores, mass mer- chandisers, vending machines, drugstores, warehouse clubs, hardware stores, office supply stores, video stores, craft and hobby stores, health and natural foods stores, the internet,63 and car washes. The upscale Toblerone brand is now available at the best truck stops. Marketing through cross promotions and tie-ins also stimulates a lot of interest in chocolate. After ET reached for a Reece’s peanut butter cup, the brand’s sales tripled.64 The tie-in to Lindberg’s solo flight across the Atlantic launched the Lindy Bar.65 Advertising also excites interest in chocolate. National consumer advertising expenditures in 1999 reached an estimat- ed $369 million.66 Hershey spends 10 percent of its enormous yearly sales on advertising67 giv- ing it considerable capacity to stimulate desires for its chocolate. If Chris Armstrong really purchased chocolate just because he liked it, rather than because his desire for it is a desire for a part of social wealth, then his desire would have no common- ality with the desires of those who do not like chocolate. Consequently, we would be unable to establish that consumers have common goals. But as we have seen, the desire for chocolate is a quantitatively and qualitatively multiplied desire. As such, it has the shared property of being a desire for wealth. The common desire for wealth establishes a dimension of community among citizens, which invokes the ethics of community and its egalitarian rules of distribution of part of national income. (E) CAN THERE BE COMMUNITY IN MARKET ECONOMIES WITH DISSIDENT ENVIRONMENTALISTS AND SUSTAINABLE ECONOMISTS AROUND? The proposition that capital-based market systems have a dimension of community is apparently contradicted by the fact that these systems contain economic democrats, right- and left-wing liber- tarians, market socialists, devotees of sustainable economics, all advocating alternative economic arrangements: a system of self-owned and self-governing economic enterprises, unregulated capi- talism, a system of collectively owned and self-managed firms, a system with highest attainable basic income, etc. Some proponents of these systems view them as categorically different from, and ethically superior to, capital-based market systems with egalitarian rules of distribution derived from the ethics of community. 68 As they see it, the ethics of community for capital-based market systems does not provide principles of distributive justice that are generally valid for all economic systems or specifically valid for capital-based market systems. Some theorists doubt that commu- nity could be ascribed to systems fraught with this much dissensus.69 Disagreement between individuals in a capital-based market system regarding distributive rules may not rule out a dimension of community regarding some or all of the system’s funda- mentals. While economic actors may disagree over whether there should be liberal property or redistributory property, they may agree that the economy should be arranged so as to preserve Opening the Door to More Equality 285 62 The Chocolate Market (note 58 above) at 20. 63 The Chocolate Market (note 58 above) at 68. 64 Lopez Chocolate (note 54 above) at 126 65 Lopez Chocolate (note 54 above) at 126. 66 The Chocolate Market (note 58 above) at 18. 67 Rees ‘Bite-Sized Marketing’ (note 55 above) at 127. 68 V Chibber ‘Individualism, Community, and Distributive Justice’ (2004) 13 The Good Society 62 at 62-66. 69 Armstrong ‘Equality’ (note 37 above) at 346 fn 23. 2 8 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E and expand capital. As long as they agree on this relevant fundamental, a dimension of com- munity can exist within capital-based market systems, and it can invoke the redistributory rules of the ethics of community. Even if the minority prefers traditional liberal property rights, the majority can cite the agreement on the preservation and expansion of capital as a communal basis for the egalitarian rules of distribution of the ethics of community. Disagreement between individuals in capital-based market systems regarding private versus collective ownership of production precludes some forms of community among the members. But it does not rule out agreement on a relevant fundamental: that the system should be arranged so that capital is preserved and expanded, and wealth created and acquired. Community in regard to the preservation and maintenance of capital can, therefore, exist in a capital-based market systems, despite the lack of community with respect to whether there should be collective versus decentralized ownership of firms. And it can invoke the egalitarian distributive rules of the ethics of community. Do differences between advocates of capital-based systems and sustainable economies pre- clude an element of economic community from the former systems? And therefore also pre- clude the ethics of economic community with their egalitarian rules of distribution? I don’t think so. Sustainable economics rejects growth economics and adopts steady-state economics. Its advo- cates define growth as ‘an increase in the physical scale of the matter/energy throughput that sus- tains the economic activities of production and consumption commodities.’70 If adherents of sus- tainable economics were right that economic growth could be defined as an increase in the amount of physical inputs and physical outputs, then a sustainable economy that eliminates this kind of increase would obviously be categorically different from a capital-based economy, where increases in physical inputs and outputs are ongoing. But economic growth cannot be reduced to increased use of physical inputs (raw materials and capital stock) and increased production of physical outputs. New generations of computers, refrigerators, televisions, and other electronic devices can have innovative features that add to their value, even though their production does not utilize as much matter and energy as previous generations did. Since the growth of capital consists essentially in the growth of value, the limitation of physical inputs and outputs that sus- tainable economics requires does not necessarily limit capital’s growth. A sustainable develop- ment model is, at least in this fundamental respect, indistinguishable from a capital-based mar- ket system. Disagreements between the advocates of these alternatives systems do not bar the existence of community with respect to the preservation and expansion of value, so the commu- nal basis exists for the ethics of community and its egalitarian rule of distribution. As the natural resource constraint upon physical growth tightens, however, countries will have to try to shift from the mode of expansion of capital under capitalism to the mode of expansion of capital in the sustainable economy. Instead of expanding capital through expan- sion of physical inputs and outputs there will be an intensified drive to expand it through expanding value—without expansion of physical inputs and outputs. If, on the one hand, this works, then capital-based markets will be preserved. If, on the other hand, economic society cannot convert to the alternative mode of value expansion, then the economy will cease to be a value-growth system and will lose a basic feature of a capital-based market system (though it can still have another basic feature of a capital-based market, which I will mention in a moment). Community will not obtain between the advocates of sustainable and wealth-based 70 Herman Daly Beyond Growth (1996) at 31. economics with respect to continued expansion, and to this extent there will not be a basis on which to argue for the ethics of community with its egalitarian rules of distribution. There will, however, continue to be agreement with respect to the pursuit and acquisition of a portion of wealth, considered as a vast amount of wealth involving an immense accumulation of com- modities, though not as a growing sum and possibly as a retreating sum. This degree and kind of community would also continue to justify egalitarian distribution proportionate to the extent of community. The number of advocates of expansionary capital-based economics will probably dwindle under circumstances of severe resource constraints, just as support for capitalism waned after World War II in Europe, where a new consensus on the mixed economy arose. In this case, there would be community with respect to the mode of value creation in the sustainable economy, which would invoke egalitarian rules of community. Suppose that capital-based market systems can successfully change to economic growth involving expansion of value without expansion of physical inputs and outputs. Then it would seem like the ethics of capital-based economic community would still be valid. The common goals of the members — preservation and expansion of capital and the creation and acquisition of wealth — would not have hit an insuperable barrier. People would continue to have a com- mon interest in the preservation and expansion of capital, except that it would take the form of a common interest in the preservation and expansion of value rather than of physical inputs and outputs. The egalitarian rules of distribution would still be invoked, because community had been maintained. In sum, there is a communal element in both sustainable economics and capital-based mar- ket systems. Indeed the former can be capital-based market systems and can have the dimen- sion of community that the latter have. Under certain circumstances, however, they will cease to be species of capital-based systems. When resource constraints are very severe, sustainable economies will not be capital-based market systems, and they will lack at least some of the forms of community that reside in the latter systems. But they will have a different dimension of community, one that obtains with respect to the mode of value creation characteristic of a sustainable economy, and that dimension of community will invoke the rules of the ethics of community. The ethics of community, therefore, seem general in their application to the various types of modern real world economies. (F) ON THE MARXIST CRITIQUE OF THE ETHICS OF COMMUNITY FOR CAPITAL-BASED MARKETS In the judgment of some radical and liberal analysts, cooperative relations between owners and workers do not display an element of community, because these relations do not arise from free, uncoerced choices. Labour deals with capital on pain of starvation, not out of a community of interests. This line of critique seeks to undermine the communal thesis by refuting the premis- es on which it is based. But I do not think the attempt is successful. One of the premises of com- munity is that labour and capital share an interest in preserving and expanding wealth and cap- ital. Another is that labour has an interest in creating and consuming a share of social wealth. Neither one of these premises can be set aside by arguing that labour cooperates with capital on pain of starvation. To refute these premises, one would have to show labour could success- fully pursue its interest in a share of social wealth without proceeding in accordance with the requirements for preserving and expanding capital. As far as I know, neo-Marxist and liberal Opening the Door to More Equality 287 2 8 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E arguments have not shown this, so the communal dimension remains well founded. The argument that cooperation in capitalism is necessitous rather than volitional hinges on a neo-Marxist or classical political economic view of how capital provides for the needs of workers. On this view, capitalism affords the bare minimum for workers’ needs, if that. But the classical model does not square with the facts, noted above, of the twenty-first century Ameri- can economy. With thirty five million white collar workers receiving mean hourly earnings of 19 dollars, fifteen million workers in professional specialty and technical occupations with average earnings of 26.18 dollars, twenty three million blue collar workers with mean hourly earnings of 13.61 dollars, and fourteen million workers in state and local governments receiv- ing mean hourly earnings of 20.56 dollars, workers in twenty-first century America share enough in the ends of association for the economy to have a substantial dimension of commu- nity, though not equally enough for the distributive ethics of community to be fully realized.71 The presence of an element of community makes the ethics of community applicable to capi- talism to the extent that community exists within it. Because this ethics morally entails equal- ization, there should be an equalization of income proportionate to the extent of community present in the system. Once the redistributive rules of ethical community are applied, they can reduce the antago- nism in capital-labour relations. That antagonism is treatable by these external rules partly because the antagonism is not entirely intrinsic to these relations. And, to the extent that the antagonism is intrinsic, it can still be substantially overcome by external measures. The antag- onism between labour and capital arises in part from an external source: liberal laws of prop- erty and contract which promote income inequality by giving legal authorization to almost any terms that capital and labour agree upon. It is therefore susceptible to reduction by redistribu- tive measures which alter the external legal environment of business that currently authorizes highly unequal incomes. Marxists in particular believe that external redistributive policies cannot significantly en- hance community between labour and capital, because the antagonism springs from sources intrinsic to their relations rather than extrinsic to them. Under competitive market conditions, capitalistic owners who seek to maximize profits must minimize costs by, among other things, keeping wages down. For this reason, Marxists contend that wage conflict is built into capital- labour relations and that it is unalterable so long as private ownership of capital exists. Since the antagonism between workers and owners is a function of the private ownership and con- trol of firms, Marxists contend that it cannot be overcome by governmental policies in regard to welfare or redistribution. While the antagonism between labour and capital does, as Marxists claim, have some internal causes within capitalism, the fact that the sources of wage conflict are internal does not put the antagonism beyond the ameliorative reach of redistribu- tive policies. Redistributive measures can reach the inequality of incomes wherever it arises, inside or outside the economy. And, by allowing workers to share more fully in the ends of asso- ciation, these measures are able to strengthen the bonds of association. From the perspective of neo-Marxists and some liberals, wage conflict is inherent in capital- ism, so it can not be eradicated or significantly reduced under capitalism, because there is a zero-sum relation between profit and wages. It is true that profits and wages are partially inversely related, but they are not entirely inversely related. A partially inverse relation between wages and profits precludes a fully communal relationship between labour and capital, but it 71 See National Compensation Survey: Occupational Wages in the United States, 2001. does not preclude a partially communal one. A dimension of community is, therefore, compat- ible with a partially inverse relationship between wages and profits. Profits are important for capital accumulation, and capital accumulation is an essential input to long-term growth, which in turn is one of the most important causes of rising standards of living.72 As Joel Mokyr puts it, ‘To say … that a country is rich is to say that it experienced economic growth in the past.’73 Both workers and owners of capital can, therefore, have some common interest in profit max- imization and cost minimization. This means that the opposition between workers and owners of capital as regards wages and profits is not thoroughgoing and that it can co-exist with an element of community. When one adds this aspect of community to other aspects that the sys- tem possesses, there are gathering bases for invoking an ethics of community and applying its egalitarian rules to the distribution of income in capital-based market systems. Marxists also believe that antagonism is intrinsic because workers and owners hold different values and act from different motivational goals. And they think that these motivational dif- ferences give rise to conflicts that can only be eradicated or reduced by changing the basic form of ownership and control, not by promulgating redistributive measures. In a competitive envi- ronment, wealth-seeking capitalists organize the labour process so as ‘to extract the maximum quantum of effort from workers.’ 74 This inevitably pits capitalists against workers, who value ‘leisure over work’ and even ‘shirk[] from it where possible.’75 Though this might undermine the preservation of capital, workers do not care, because they are motivated by a ‘different set of incentives.’ ‘Given the different set of incentives motivating labour and capital,’ some Marxists argue that ‘the employment relation comes to involve an irreducible element of con- flict—not over distribution, but over autonomy and control.’76 To focus on simple inequality of incomes is ignore other more important conflicts that are irresolvable within the context of capitalism. In the Marxist view there is, therefore, no community to speak of. The fact that workers and owners differ about the appropriate pace and quantity of work does not mean, however, that they hold fundamentally different values. The view that workers value leisure over income is another feature of classical political economic and Marxist models, which posit that labour seeks subsistence rather than a share of wealth. The worker who val- ues leisure over work does not seem, however, to be the worker that inhabits advanced capi- talist economies. Workers integrated into the wealth-seeking ethos of the modern economy tend to value work over leisure or money-incomes over leisure. Shirking by workers does not mean that they seek subsistence rather than wealth. Executives for that matter are just as capable of shirking as workers are, yet no one adduces a desire for subsistence as an explanation for it. Shirking, whether by workers or owners, is instead symptomatic of an organizational patholo- gy, which leads them to believe that a share of wealth can be had without working. Since the modern worker shares the owner’s desire for a share of wealth, and she is not moti- vated by utterly different incentives, her values cannot be sharply distinguished from those of owners of capital. The differences between thee goals of workers and owners do not, therefore, constitute an intrinsic source of conflict over ownership and control that is so thoroughgoing that all elements of community are vitiated from labour capital relations. And, broadening our account of points of conflict from simple inequality of income to ownership and control of Opening the Door to More Equality 289 72 Philippe Aghion & Peter Howitt Endogenous Growth Theory (1999) at 114. 73 Joel Mokyr The Lever of Riches (1990) at 3. 74 Chibber ‘Individualism, Community, and Distributive Justice’ (2004) 13 The Good Society 62 at 64 . 75 Chibber (note 74 above) at 64. 76 Chibber (note 74 above) at 64. 2 9 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E firms has not, contrary to Marxist theory, revealed oppositions of interests so thoroughgoing that they preclude all significant elements of community. The differences that Marxist and classical theory posits between the values of workers and owners may also not hold with respect to workers in developing countries. In countries of this sort with highly unequal distributions of income, workers sometimes appear to have a prefer- ence for leisure over monetary reward, but this may not be their real preference. In these economies poor workers do not have much capital to work with, so they can only expect to receive low payoffs from hard work. If redistribution were implemented, ‘so that the payoffs are more equally shared,’ Aghion and Howitt contend, the incentives of the poor will be raised and this will raise output.77 In sum, the element of community is not refuted by any supposedly thoroughgoing conflict over autonomy and control arising from irreducible differences between the values of workers and owners. This element of community continues to invoke the ethics of community with respect to capital-based market systems, requiring egalitarian redistribution of a portion of national income. 77 Aghion & Howitt (note 72 above) at 318. Bibliography A Abel R A Time of Trouble: Law and Liberty in South Africa’s State of Emergency (1992) Abbott-Smith G A Manual Greek Lexicon of the New Testament (1977) Acemoglu D ‘Root Causes. A Historical Approach to Assessing the Role of Institutions in Economic Development’ (2003) 40 Finance and Development 27 Ackermann L ‘Equality and the South African Constitution: The Role of Dignity’ (2000) 60 The Heidelberg Journal for International Law 537 Aghion P & P Howitt Endogenous Growth Theory (1999) Albertyn C ‘Equality’ in M H Cheadle, D M Davis and N R L Haysom (eds) South African Constitutional Law: The Bill of Rights (1990) Albertyn C & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248 Altizer TJJ The Genesis of God – A Theological Genealogy (1993) Archer M ‘The Private Life of The Social Agent: What Difference Does It Make?’ in J Cruickshank (ed) Critical Realism. The Difference it Makes (2003) 91 Armstrong C ‘Equality, Community, and the Production of Value’ 2004 European Journal of Political Theory 339 Aron J ‘Growth and Institutions: A Review of Evidence’ (2000) 15(1) The World Bank Observer 99 Ashcraft R ‘Liberalism and the Problem of Poverty’ (1992) 6 Crit Rev 493 Assmann J et al Gerechtigkeit: Richten und Retten in der abendländischen Tradition und ihren altorien- talischen Ursprüngen (1998) August KT The Quest for Being Public Church (2003) DTh thesis, University of Stellenbosch, Stellen- bosch B Bachmann M ‘Would Social Health Insurance Improve South African Health Care? What other Middle Income Countries Can Teach Us’ (1994) 24 Transformation 26 Balderman I et al (eds) Menschenwürde: JBTh 15 (2001) Balz H ‘Die Gerechtigkeit der Gerechtfertigten: eine neutestamentliche Skizze’ in P Dabrock et al (eds) Kriterien der Gerechtigkeit (2003) 45 Barberton C ‘Progressive Realisation’ of Socio-Economic Rights’ (1999) 2 Economic and Social Rights Review 1 Barenberg M ‘Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production’ (1994) 94 Col LR 753 Baron M, P Pettit & M Slote Three Methods of Ethics: A Debate (1999) Barth K Church Dogmatics (1960) Barth K Texte zur Barmer Theologischen Erklärung (1984) Barth K The Humanity of God (1967) Baumol WJ ‘Entrepreneurship: Productive, Unproductive and Destructive’ (1990) 89 Journal of Political Economy 893 Baur J (ed) Zum Thema Menschenrechte: theologische Versuche und Entwürfe (1977) 2 9 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Bebchuk L, J Fried & D Walker ‘Managerial Power and Rent Extraction in the Design of Executive Compensation’ (2002) 69 University of Chicago LR 751 Bedford-Strohm H Vorrang für die Armen: auf dem Weg zu einer theologischen Theorie der Gerechtigkeit (1993) Bell W Aid to Dependent Children (1965) Bellah R et al Habits of the Heart. Individualism and Commitment in American Life (1985) Bellah R et al The Good Society (1991) Ben-Bassat A & M Dahan ‘Social Rights in the Constitution and in Practice’ Hebrew U of Jerusalem School of Public Policy Working Paper No 05-03 May 2003 Benedict ML ‘Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origins of Laissez-Faire Constitutionalism’ (1985) 3 Law & History Review 293 Bennett T & C Powell ‘Aboriginal Title in South Africa Revisited’ (1999) 15 SAJHR 449 Bennis P ‘Talking Points: Iraq, the UN, & US Corporations’ (2003) Web publication by United for Peace and Justice http://unitedforpeace.org/article.php?id=2031 Berlin I ‘Two Concepts of Liberty’ in I Berlin (ed) Fours Essays on Liberty (1969) 118 Berger P (ed) The Desecularization of the World. Resurgent Religion and World Politics (1999) Best TF and M Robra (eds) Ecclesiology and Ethics: Ecumenical Engagement, Moral Formation and the Nature of the Church (1997) Best TF and M Robra ‘Introduction’ in TF Best and M Robra (eds) Ecclesiology and Ethics: Ecumenical Engagement, Moral Formation and The Nature of the Church (1997) vii Bhaskar R ‘On the Possibility of Social Scientific Knowledge and the Limits of Naturalism’ in J Mepham & DH Rubin (eds) Issues in Marxist Philosophy vol 3: Epistemology, Science, Ideology (1979) 125 Biko S I Write What I Like (2004) Bilchitz D ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2002) 118 SALJ 484 Birch B & L Rasmussen Bible and Ethics in the Christian Life (1989) Bix B Jurisprudence: Theory and Context (1996) Bloch FS ‘Cooperative Federalism and the Role of Litigation in the Development of Federal AFDC Eligibility Policy’ (1979) Wis LR 1 Botha H ‘Freedom and Constraint in Constitutional Adjudication’ (2004) 20 SAJHR 249 Botha H, A van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) Botha J & P Naude Op Pad met Belhar: Goeie Nuus vir Gister, Vandag en Môre (1998) Botman HR ‘Human Dignity and Economic Globalization’ in HR Botman & K Sporre (eds) Building a Human Rights Culture: South African and Swedish Perspectives (2003) 20 Bosniak LS ‘Critical Reflection on “Citizenship” as a Progressive Aspiration’ in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 339 Brady BV The Moral Bond of Community: Justice and Discourse in Christian Morality (1998) Brand D & S Russell Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (2002) Brand D ‘Introduction to Socio-Economic Rights in the South African Constitution’ in D Brand & CH Heyns (eds) Socio-Economic Rights in South Africa (2005) 1 Brand D ‘The Proceduralisation of South African Socio-Economic Rights Jurisprudence, or “What are Socio-Economic Rights For?”’ in H Botha, A van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 33 Breitenberg EH ‘To Tell the Truth: Will the Real Public Theology Please Stand Up?’ (2003) 23 Journal of the Society of Christian Ethics 55 Brodsky G ‘Gosselin v Quebec (Attorney General): Autonomy with a Vengeance’ (2003) 15 Canadian Journal of Women and the Law 194 Brown S & A Fölscher Taking Power in the Economy – Gains and Directions (2004) Browning D A Fundamental Practical Theology. Descriptive and Strategic Proposals (1996) Brunner E Dogmatics (1950) Brunner E Gerechtigkeit: eine Lehre von den Grundgesetzen der Gesellschaftsordnung (1943) Buchanan A ‘The Right to a Decent Minimum of Health Care’ (1984) 13(1) Philosophy and Public Affairs 55 Buchanan JM & RA Musgrave Public Finance and Public Choice. Two Contrasting Visions of the State (2000) Buchanan JM ‘Politics without Romance’ in JM Buchanan (ed) The Collected Works of James Buchanan. Volume I. The Logical Foundations of Constitutional Liberty (1999) 45 Buchanan R ‘Border Crossings: NAFTA, Regulatory Restructuring, and the Politics of Place’ (1995) 2 Indiana J of Global Legal Studies 371 Budlender D The People’s Voices (1998) Burgsmüller A & R Weth (eds) Die Barmer Theologische Erklärung: Einführung und Dokumentation (1983) Burke E ‘Reflections on the Revolution in France’ in E Burke (ed) On Taste; On the Sublime and Beautiful; Reflections on the French Revolution; A Letter to a Noble Lord (1937) 143 Busch E Die Barmer Thesen 1934 - 2004 (2004) C Calitz E & K Siebritz: ‘Macroeconomic Stability and Developmental Expectations: Fiscal Consolidation in Post-Apartheid South Africa’ (2003) Cameron E ‘Legal Chauvinism, Executive-Mindedness and Justice: L C Steyn’s Impact on South African Law’ (1982) 99 SALJ 38 Casper G ‘Changing Concepts of Constitutionalism: 18th to 20th Century’ (1989) S Ct Rev 311 Chanock M The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2001) Chapman A ‘Core Obligations Related to the Right to Health and their Relevance for South Africa’ (2002) in D Brand & S Russell Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (2002) 35 Chetty K ‘The Public Finance Implications of Recent Socio-Economic Rights Judgments’ (2002) 6 Law, Democracy and Development 231 Chibber V ‘Individualism, Community, and Distributive Justice’ (2004) 13 The Good Society 62 Clark HB Serenity, Courage, and Wisdom: The Enduring Legacy of Reinhold Niebuhr (1994) Clements K Learning to Speak: The Church’s Voice in Public Affairs (1995) Cloete GD & DJ Smit A Moment of Truth: The Confession of the Dutch Reformed Mission Church (1984) Cloete JJN Administration of Health Services (1981) Coase RH ‘The Institutional Structure of Production’ in RH Coase (ed) Essays on Economics and Economists (1994) 3 Cockrell A ‘Rainbow Jurisprudence’ (1996) 12 SAJHR 1 Cohen WJ ‘The Social Security Act of 1935: Reflections Fifty Years Later’ in The Report of the Committee on Economic Security of 1935 at 3 (50th Anniversary ed Natl Conf on Soc Welfare 1985) Collier P & JW Gunning ‘Explaining African Economic Performance’ (1999) 37 Journal of Economic Literature 64 Bibliography 293 2 9 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Commons JR Legal Foundations of Capitalism (1924) Conaghan J ‘Woman, Work and Family: A British Revolution’ in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 53 Conaghan J, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) Coons JE et al ‘Educational Opportunity: A Workable Constitutional Test for State Financial Structures’ (1969) 57 Cal LR 305 Corder H Judges at Work: The Role and Attitudes of the South African Appellate Judiciary, 1910-50 (1984) Courage N ‘WTO Agreement Improves Access to Life-Saving Drugs’ The Lawyers Weekly 2003-09-26 Cover R Justice Accused: Antislavery and the Judicial Process (1975) Cowen S ‘Can “Dignity” Guide South Africa’s Equality Jurisprudence?’ (2001) 17 SAJHR 34 Cranston M ‘Human Rights, Real and Supposed’ in DD Raphael (ed) Political Theory and the Rights of Man (1967) 51 Crüsemann F ‘Jahwes Gerechtigkeit im Alten Testament’ (1976) 36 Evangelische Theologie 427 Cupitt D The Long-legged Fly (1987) Currie DP ‘Positive and Negative Constitutional Rights’ (1986) 53 Univ of Chicago LR 864 Currie DP The Constitution of the Federal Republic of Germany (1994) D Dabrock P et al (eds) Kriterien der Gerechtigkeit: Festschrift für Christofer Frey zum 65. Geburtstag (2003) Daly H Beyond Growth (1996) Daniels N ‘Health Care Needs and Distributive Justice’ (1981) 10 Philosophy and Public Affairs 146 Daniels N ‘A Reply to Stern Critics and a Remark on Health Care Rights’ (1983) 8 Journal of Medicine and Philosophy 363 Davis DM ‘The Case Against the Inclusion Of Socio-Economic Demands In a Bill of Rights Except as Directive Principles’ (1992) 8 SAJHR 475 Davis DM ‘Equality: The Majesty of Legoland Jurisprudence’ (1999) 116 SALJ 398 Davis DM Democracy and Deliberation (1999) Davis DM ’Elegy to Transformative Constitutionalism’ in H Botha, AJ van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 57 Davis DM ‘Socio-Economic Rights in South Africa. The Record of the Constitutional Court after Ten Years’ (2004) 5:5 ESR Review 3 Davis MF Brutal Need: Lawyers and The Welfare Rights Movement, 1960-1973 (1993) De Beer C ‘A Forward View of the Health Services in South Africa’ (1976) 50 South African Medical Journal 431 De Beer C ‘Explaining the Present: Why Health Services do not meet the Health Needs of the Population’ in A Zwi & WB Saunders (ed) Towards Health Care for All (1985) 59 Debreu G Theory of Value: An Axiomatic Analysis of Economic Equilibrium (1959) De Buen Unna C ‘Mexican Trade Unionism in a Time of Transition’ in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 401 De Gruchy SM Not Liberation but Justice: An Analysis of Reinhold Niebuhr’s Understanding of Human Destiny in the Light of the Doctrine of the Atonement (1992) DTh thesis, University of the Western Cape, Bellville De Gruchy J Christianity and Democracy. A Theology for a Just World Order (1995) De Gruchy J ‘African Theology: South Africa’ in D Ford (ed) The Modern Theologians. An Introduction to Christian Theology in the Twentieth Century (1997) 445 De Long JB & A Shleifer ‘Princes and Merchants: European City Growth before the Industrial Revolution’ (1993) 36 Journal of Law and Economics 671 Derthick M The Influence of Federal Grants: Public Assistance in Massachusetts (1970) De Vos P ‘Grootboom, The Right of Access to Housing and Substantive Equality as Contextual Fairness’ (2001) 17 SAJHR 258 De Waal J, I Currie & MG Erasmus The Bill of Rights Handbook (4th ed) (2001) Diamond J Guns, Germs and Steel. The Fates of Human Societies (1997) Dicey AV Lectures on Law and Public Opinion in England During the Nineteenth Century (1905) Dietsch P ‘Review of Ross Zucker Democratic Distributive Justice’ (2002) 14 The Review of Political Economy 397 Dollar D & A Kraay ‘Growth is Good for the Poor’ (2001) World Bank Policy Research Working Paper Series 2587 Donnely J Universal Human Rights in Theory and Practice (1989) Dorrington RE et al The Impact of HIV/AIDS on Adult Mortality in South Africa (2001) Duchrow U ‘Justice’ in N Lossky et al (eds) Dictionary of the Ecumenical Movement (2002) 627 Dugard J ‘The Judicial Process, Positivism and Civil Liberty’ (1971) 88 SALJ 181 Dugard J Human Rights and the South African Legal Order (1978) Dugard J ‘Should Judges Resign? A Reply to Professor Wacks’ (1984) 101 SALJ 286 Durkheim E Suicide. A study in Sociology (1952) Durkheim E Professional Ethics and Civic Morals (1957) Durkheim E The Rules of Sociological Method and Selected Texts on Sociology and its Method (1982) Durkheim E The Division of Labour in Society (1984) Durkheim E The Elementary Forms of Religious Life (1995) Du Toit D (ed) Menseregte: Opstelle (1984) Du Toit D Die Mens en sy Regte: Geloof en Praktyk in Suid-Afrika (1988) Du Toit SF Ideas of Truth and Revelation in the Light of the Challenge of Postmodernism (1995) University of Oxford: DPhil Thesis Du Toit SF Learning to Live Together: Practices of Social Reconciliation (2003) Dworkin R Taking Rights Seriously (1977) Dworkin R ‘What Is Equality: Part 2: Equality of Resources’ (1981)10 Philosophy and Public Affairs 283 Dworkin R ‘Why We Are All Liberals’ paper presented at the Program for the Study of Law, Philosophy & Social Theory NYU School of Law 19 October 1995 Dykstra C& DC Bass ‘A Theological Understanding of Christian Practices’ in M Volf & DC Bass Practicing Theology. Beliefs and Practices in Christian Life (2002) 13 Dyzenhaus D Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (1991) Dyzenhaus D Truth, Reconciliation and the Apartheid Legal Order (1998) E Easterly W The Elusive Quest for Growth (2001) Edelman MW Lanterns: A Memoir of Mentors (1999) Eggertsson T Economic Behaviour and Institutions (1990) Elkin SL ‘Notes on the Old Political Science for the Present Age’ (2004) 1 The Good Society 4 Ellmann S In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency (1992) Engelhardt HT ‘Rights to Health Care: A Critical Appraisal’ (1979) 4 Journal of Medicine and Philosophy 113 Etzioni A The Moral Dimension (1988) Bibliography 295 2 9 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E F Fabre C Social Rights under the Constitution: Government and the Decent Life (2000) Falconer AD ‘Pressing the Claims: Reflections in the Theological Basis of Human Rights’ (1998) 48 Reformed World 50 Feldman D Civil Liberties and Human Rights in England and Wales (1993) Feuerbach L The Essence of Christianity (1989, 1st ed 1841) Fineman MLA ‘Masking Dependency: The Political Role of Family Rhetoric’ (1995) 81 Virginia LR 2181 Fischer J ‘Jenseits reiner Normativität: Skizze einer theologisch-ethischen Annäherung and die Gerechtig- keitsthematik’ in P Dabrock et al (eds) Kriterien der Gerechtigkeit (2003) 137 Forbath WE ‘The Ambiguities of Free Labor: Labor and the Law in the Gilded Age’ (1985) Wis LR 767 Forbath WE ‘Habermas’s Constitution: A History, Guide, and Critique’ (1998) 23 L & Soc Inquiry 969 Forbath WE ‘Caste, Class, and Equal Citizenship’ (1999) 98 Mich LR 1 Forbath WE ‘“Constitutional Welfare Rights”: A History, Critique and Reconstruction’ (2001) 69 Fordham LR 1821 Forbath WE ‘The New Deal Constitution in Exile’ (2001) 51 Duke LJ 165 Forbath WE ‘Lincoln, the Declaration, and the “Grisly, Undying Corpse of States’ Rights”: History, Memory, and Imagination in the Constitution of a Southern Liberal’ (2004) 92 Georgetown LJ 709 Forbath WE ‘Not So Simple Justice: Frank Michelman on Social Rights 1969-Present’ (2004) 39 Tulsa LR 597 Forrester D Christian Justice and Public Policy (1997) Forsyth C In Danger for their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950-80 (1985) Fouts DE ‘Policy-Making in the Supreme Court of Canada, 1950-1960’ in G Schubert & DJ Danelski (eds) Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (1969) 257 Frank J Law and the Modern Mind (1930) Fraser N ‘Talking about Needs: Interpretive Contests as Political Conflicts in Welfare-State Societies’ (1989) 99 Ethics 291 Fraser N & L Gordon ‘A Genealogy of Dependency: Tracing a Keyword of the US Welfare State’ (1994) 19 Signs: Journal of Women in Culture and Society 309 Fredman S ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ unpublished paper delivered at SAJHR Conference, 5 – 7 July 2004 G Garner BA (ed) Black’s Law Dictionary 7ed (1999) Gauri V ‘Social Rights and Economics. Claims to Health Care and Education in Developing Countries’ (2003) World Bank Policy Research Paper 3006 Gearon L Human Rights & Religion: A Reader (2002) Gelderblom D Morality, Individual and Society: Emile Durkheim (2004) Gewirth A ‘Are there any Absolute Rights?’ in J Waldron Theories of Rights (1984) 92 Giddens A Studies in Social and Political Theory (1977) Gilkey LB On Niebuhr: A Theological Study (2001) Glendon M ‘Rights in Twentieth-Century Constitutions’ (1992) 59 U Chi LR 519 Glendon M A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001) Gloppen R ‘Analyzing the Role of Courts in Social Transformation: Social Rights Litigation, Court Responsiveness and Capability’ paper presented at the Centre for Applied Legal Studies Workshop on Human Rights, Democracy and Social Transformation: When do Rights Work? (November 2003) Gloppen R, Rargarella & E Skaar (eds) Democratization and the Judiciary: The Accountability Function of Courts in New Democracies (2004) Goldberg AJ ‘Equality and Governmental Action’ (1964) 39 FNY U LR 205 Goldsmith AH et al ‘The Psychological Impact of Unemployment and Joblessness’ (1996) 25 J Socio-Eco 333 Goodin E, B Headey, R Muffels & HJ Dirven The Real Worlds of Welfare Capitalism (1999) Goyer KC ‘HIV/AIDS in South African Prisons’ http://www.iss.co.za/Pubs/Monographs/ No79/Chap1.html Graham C & S Pettinato Happiness and Hardship: Opportunity and Insecurity in New Market Economies (2002) Gray JC Restraints on the Alienation of Property (1895) Green W and J Neusner (eds) The Religion Factor. An Introduction to how Religion Matters (1996) Griffen D Primordial Truth and Postmodern Theology (1989) Grilli V, D Masciandaro et al ‘Institutions and Policies’ (1991) Economic Policy 341 Gustafson J ‘An Analysis of Church and Society Social Ethical Writings’ (1988) 40 Ecumenical Review 267 Gustafson J Varieties of Moral Discourse: Prophetic, Narrative, Ethical and Policy. The Stob Lectures of Calvin College and Seminary (1988) Gustafson J ‘Moral Discourse About Medicine: A Variety of Forms’ (1990) Journal of Medicine and Philosophy 125 H Habermas J ‘Law as Medium and Law as Institution’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 204 Habermas J The Philosophical Discourse of Modernity: Twelve Lectures (1987) Habermas J The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1989) Habermas J Erläuterungen zur Diskursethik (1991) Habermas J Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (1992) Habermas J Between Facts and Norms (1996) Habib A & C Skinner ‘The Poor Must Fend for Themselves’ (04-08-2002) Sunday Times 14 Hall KL The Magic Mirror (1989) Hall R ‘Rural Land Restitution in South Africa’ paper prepared for Programme for Land and Agrarian Studies (July 2003) Hall R & CI Jones ‘Why do Some Countries Produce so Much More Output per Worker than Others’ (1999) 114 Quarterly Journal of Economics 83 Handler JF & Y Hasenfeld We the Poor People: Work, Poverty, and Welfare (1997) Hardmeier C et al (eds) Freiheit und Recht: Festschrift für Frank Crüsemann zum 65. Geburtstag (2003) Hart HLA The Concept of Law (1961) Haspel M Protestantische Ethik vor der Herausforderung der Globalisierung (2004) Hauerwas S Vision and Virtue: Essays in Christian Ethical Reflection (1974) Hauerwas S Truthfulness and Tragedy: Further Investigations in Christian Ethics (1977) Hauerwas S A Community of Character: Toward a Constructive Christian Social Ethic (1981) Hauerwas S The Peaceable Kingdom. A Primer in Christian Ethics (1983) Hauerwas S Christian Existence Today. Essays on Church, World and Living in Between (1995) Bibliography 297 2 9 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Hauerwas S & C Pinches Christians among the Virtues. Theological Conversations with Ancient and Modern Ethics (1997) Hauerwas S & S Wells (eds) The Blackwell Companion to Christian Ethics (2004) Hayek FA The Constitution of Liberty (1960) Hayek FA ‘Individualism: True and False’ in FA Hayek (ed) Individualism and Economic Order (1984) 1 Hayek FA ‘The Meaning of Competition’ in FA Hayek (ed) Individualism and Economic Order (1984) 92 Haysom N ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’ (1992) 2 SAJHR 451 Hegarty A & S Leonard Human Rights. An Agenda for the 21st Century (1999) Hegel GWF The Philosophy of Right (1952) Heller PS ‘Wealth Creation and Social Justice: An IMF perspective’ (2003) Paper Presented at the World Council of Churches/World Bank/IMF Meeting, February 2003 Hendriks H The Future of the Church, the Church of the Future (2004) Unpublished Inaugural lecture, University of Stellenbosch Heywood A Politics (2002) Heywood M ‘Preventing Mother-to-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 SAJHR 278 Hicks JR The Theory of Wages (1963) Hoctor S ‘Dignity, Criminal Law and the Bill of Rights’ (2004) 121 SALJ 265 Hofstadter R Social Darwinism in American Thought (1955) Honecker M Das Recht des Menschen: Einführung in die evangelische Sozialethik (1978) Hont I & M Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (1983) Horne TA Property Rights and Poverty: Political Argument in Britain, 1605-1834 (1990) Huber W & HE Tödt Menschenrechte: Perspektiven einer menschlichen Welt (1977) Huber W ‘Human Rights: A Concept and its History’ (1979) 124 Concilium 1 Huber W ‘Beten und Tun des Gerechten’ in W Huber & I Tödt (eds) Ethik im Ernstfall: Dietrich Bon- hoeffers Stellung zu den Juden und ihre Aktualitat (1982) 11 Huber W ‘Menschenrechte’ in Staatslexikon Bd. 3 (1987) Huber W ‘Recht im Horizont der Liebe’ in Brandt et al (eds) Ein Richter, ein Bürger, ein Christ: Festschrift für Helmut Simon (1987) 1045 Huber W ‘Justice, Peace and the Integrity of Creation: A Challenge for Ecumenical Theology’ (1988) 24 Scriptura 1 Huber W ‘Menschenrechte’ in L Engel et al (eds) Hoffnung in der Krise: Dokumente einer christlichen Existenz in Südafrika zum 65 Geburtstag von Wolfram Kistner (1988) 298 Huber W ‘Die Prediking oor Regverdigheid en Geregtigheid’ in CW Burger et al (eds) Riglyne vir Prediking oor die Bergrede (1990) 15 Huber W ‘Das Grundgesetz und die Menschenrechte’ (1989) 33 Zeitschrift für Evangelische Ethik 82 Huber W ‘Die Menschenrechte und das Grundgesetz: Theologische Überlegungen’ in M Pfeiffer (ed) Auftrag Grundgesetz: Wirklichkeit und Perspektiven (1989) 190 Huber W ‘Menschenrechte – Christenrechte’ in Recht nach Gottes Wort: Menschenrechte und Grund- rechte in Gesellschaft und Kirche (1989) 82 Huber W ‘Die Würde des Menschen ist antastbar: Anfragen aus der Sicht der christlichen Ethik’ (1990) 45 Universitas 852 Huber W Konflikt und Konsens: Studien zur Ethik der Verantwortung (1990) Huber W ‘Menschenrechte/Menschenwürde’ in Theologische Realencyklopädie XXII (1992) 577 Huber W ‘Menschenrechte und biblisches Rechtsdenken: ein Versuch’ (1993) 2 Neukirchener Theologische Zeitschrift: Kirche und Israel 144 Huber W Die tägliche Gewalt: gegen die Ausverkauf der Menschenwürde (1993) Huber W ‘Meschenwürde? Gewalt und Intimität als Unterhaltung’ in W Wunden (ed) Öffentlichkeit und Kommunikationskultur (1994) 181 Huber W ‘Gottesrecht und Menschenrechte in gesellschaftspolitischen Entwürfen’ (1995) 32 epd- Dokumentation 55 Huber W ‘Lebenswert und Lebensrecht’ (1995) Huber W ‘Die Würde des Menschen ist antastbar: Anfragen aus der Sicht der christlichen Ethik’ in S Abarbanell et al (eds) Fernsehzeit (1996) 185 Huber W Gerechtigkeit und Recht: Grundlinien Christlicher Rechtsethik (1996) Huber W ‘Recht als Beruf: Verantwortung für das Recht im Horizont der Gerechtigkeit’ in U Neumann and L Schulz (eds) Verantwortung in Recht und Moral: Referate der Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie (2000) 39 Huber W Rechtfertigung und Recht: über die christlichen Wurzeln der europäischen Rechtskultur (2001) Hunsinger G How to Read Karl Barth – The Shape of His Theology (1991) Huntington S The Clash of Civilizations and the Remaking of Worldorder (1997) Hütter R Evangelische Ethik als kirchliches Zeugnis: Interpretationen zu Schlüsselfragen theologischer Ethik in der Gegenwart (1993) I Iles K ‘Limiting Socio-Economic Rights: Beyond the Internal Limitations Clauses’ (2004) 20 SAJHR 448 J Jackman M ‘Constitutional Rhetoric and Social Justice: Reflections on the Justiciability Debate’ in J Bakan & D Schneiderman (eds) Social Justice and the Constitution: Perspectives on a Social Union for Canada (1992) 17 Jeeves A ‘Public Health and Epidemiology in the Era of South Africa’s VD Pandemic of the 1930s and 1940s’ paper read at AIDS in Context International Conference held at the University of the Witwatersrand 4–7 April 2001 Johanson B (ed) Human Rights in South Africa (1974) Johanson B Human Rights and Repression in Southern Africa: The Apartheid Machine Grinds On (1989) John C ‘Human Rights and the Churches: The New Challenges’ (1998) 48 Reformed World 79 Johnsen DE ‘Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change’ (2003) 78 Ind LJ 363 Jones J Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (1985) K Kagan D, S Ozment & FM Turner The Western Heritage to 1715 (2001) Kant I ‘On the Common Saying: “This May be True in Theory, But it Does not Apply in Practice’’’ in Hans Riess (ed) Kant’s Political Writings (1970) 61 Kant I The Moral Law: Kant’s Groundwork of the Metaphysic of Morals (1963) Kapp C ‘World Trade Organisation Reaches Agreement on Generic Medicines’ (2003) 362 Lancet 807 Kasper W & M E Streit Institutional Economics: Social Order and Public Policy (1998) Keeton C ‘A Turning Point for AIDS Treatment’ Sunday Times 2003-08-10 Kegley CW Reinhold Niebuhr, his Religious, Social, and Political Thought (1984) Bibliography 299 3 0 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Kennedy D A Critique of Adjudication (Fin de Siècle) (1997) Keynes JM The General Theory of Employment, Interest, and Money (1964) Kindra J ‘AIDS: Ministers Revolt’ Mail & Guardian 2003-08-15 to 2003-08-21 Klaaren J ‘An Institutional Interpretation of Socio-Economic Rights and Judicial Remedies after TAC’ in H Botha, AJ van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 105 Klare KE ‘Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness’ (1978) 62 Minnesota LR 1049 Klare KE ‘Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform’(1988) 38 Catholic University L Rev 1 Klare KE ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146 Knack S ‘Predation of Production? The Impact of Political, Legal and Social Institutions’ in S Knack (ed) Democracy, Governance and Growth (2003) 1 Knack S & P Keefer ‘Institutions and Economic Performance: Cross Country Tests Using Alternative Institutional Measures’ (1995) 7 Economics and Politics 207 Koopman N ‘Tussen die Duiwel van Konstantinisme en die Diep Blou See van Sektarisme – Kerk en Staat Verhoudinge in Post-apartheid Suid-Afrika’ (2001) 43 NGTT 135 Koopman N ‘ “... and the wronged…” A Basic and Neglected Conviction of (Reformed) Theology?’ in P Coertzen (ed) 350 Years Reformed 1652-2002 (2002) 252 Koopman N ‘Freedom of Religion and the Prophetic Role of the Church’ (2002) 43 NGTT 237 Koopman N ‘Some Comments About Public Theology Today’ (2003) Journal of Theology for Southern Africa 1 Koopman N ‘Defence in a Democracy. A Church Perspective on the Postapartheid Defence Review Process’ in K Haglind (ed) Arms Trade. Final Report from the 2nd Ecumenical Conference in Gothenburg (2004) 7 Koopman N ‘The Role of Tradition in Moral Decisionmaking and Moral Consensus’ (2004) 45 NGTT 838 Koopman N ‘Let the Plight of the Poor be Heard. Prophetic Speaking about Poverty Today’ (2004) 45 NGTT 440 Koopman N & R Vosloo Die Ligtheid van die Lig. Morele Oriëntasie in ‘n Postmoderne Tyd (2002) Küng H (ed) Yes to a global ethic (1996) Küng H & KJ Kuschel (eds) A Global Ethic. The Declaration of the Parliament of World Religions (1993) Kymlicka W Liberalism, Community and Culture (1989) L Ladd-Taylor M Mother-Work: Women, Child Welfare, and the State, 1890-1930 (1994) Landes D The Wealth and Poverty of Nations. Why Some are so Rich and Some so Poor (1998) Landes D The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (2003) Landman W ‘Appropriate Health Care as a Human Right’ in A Van Niekerk (ed) Health Care as Human Right (1993) 36 Lategan BC ‘Taking the Third Public Seriously’ in JW de Gruchy & S Martin (eds) Religion and the Reconstruction of Civil Society (1995) 217 Lawrence SE The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990) Lebacqz K Six Theories of Justice: Perspectives from Philosophical and Theological Ethics (1986) Lebacqz K Justice in an Unjust World: Foundations for a Christian Approach to Justice (1987) Leech BE ‘The Right of the HIV-positive Patient to Medical Care: An Analysis of Costs of Providing Medical Treatment’ (1993) 9 SAJHR 39 Levine DP Economic Theory (1978) Levine DP ‘Poverty, Capabilities, and Freedom’ (2003) 15 Review of Political Economy 101 Liebenberg S ‘The Right to Social Assistance: The Implications of Grootboom for Policy Reform in South Africa’ (2001) 17 SAJHR 232 Liebenberg S ‘South Africa’s Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in Challenging Poverty?’ (2002) 6 Law, Democracy and Development 159 Liebenberg S ‘The Interpretation of Socio-Economic Rights’ in M Chaskalson et al Constitutional Law of South Africa (2nd edition 2004) chap 33 Lienemann W Gerechtigkeit (1995) Lindblom CE Politics and Markets (1977) Lister R ‘Citizenship: Towards a Feminist Synthesis’ (1997) 57 Feminist Rev 28 Locke J Two Treatises of Government 170 (1960) Lopez R Chocolate: The Nature of Indulgence (2002) Lovin R Christian Ethics. An Essential Guide (2000) Lucas RJ ‘Econometric Policy Evaluation: A Critique’ in K Brunner & Meltzer AH (ed) The Phillips Curve and Labour Markets (1976) 19 Lucas RJ ‘Some Macroeconomics for the 21st Century’ (2000) 14 Journal of Economic Perspectives 159 Lucas RJ Lectures on Growth Theory (2002) Luhmann N Ausdifferenzierung des Rechts: Beiträge zur Rechtssoziologie und Rechtstheorie (1981) Luhman N ‘The Self-Reproduction of Law and its Limits’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 111 Lukes S Émile Durkheim. His Life and Work: A Historical and Critical Study (1975) M McDonnell PJ ‘US Votes Could Sway Mexico’s Next Election’ (1999) 15 February Los Angeles Times A1 MacIntyre A Whose Justice? Which Rationality? (1988) McIntyre DE & RE Dorrington ‘Trends in the Distribution of South African Health Care Expenditure’ (1990) 78 SAMJ 125 Macneil I ‘Economic Analysis of Contractual Relations’ in P Burrows & CG Veljanovski (eds) The Economic Approach to Law (1981) 61 Maddison A The World Economy: A Millennial Perspective (2002) Maklem P ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 Univ of Pennsylvania LR 1 Malan N ‘Civil Society and the Right to have Access to Social Security in South Africa’ (2004) Unpublished Research Paper, RAU: Johannesburg Margolis J ‘The Rights of Man’ (1978) 4 Social Theory and Practice 423 Marshall TH ‘On Citizenship and Social Class’ in Class, Citizenship and Social Development (1964) 28 Marx K & F Engels The Communist Manifesto (1848) May J Poverty and Inequality in South Africa: Report Prepared for the Office of the Executive Deputy President and the Inter-Ministerial Committee for Poverty and Inequality (PIR Report) (1998) Melnick RS Between the Lines: Interpreting Welfare Rights (1994) Meyerson D Rights Limited (1997) Minow M ‘Just Education: An Essay for Frank Michelman’ (2004) 39 Tulsa LR 547 Michel S Children’s Interests/Mothers’ Rights: The Shaping of America’s Child Care Policy (1999) Michelman FI ‘Foreword: On Protecting the Poor through the Fourteenth Amendment’ (1969) 83 Harv LR 7 Bibliography 301 3 0 2 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Michelman FI ‘In Pursuit of “Constitutional Welfare Rights”: One View of Rawls’ Theory of Justice’ (1973) 121 U Pa LR 962 Michelman FI ‘Welfare Rights in a Constitutional Democracy’ (1979) 3 Wash Univ LQ 659 Michelman FI ‘Justification (and Justifiability) of Law in a Contradictory World’ in J R Pennock & J W Chapman (eds) NOMOS XXVIII: Justification (1986) 71 Michelman FI ‘Foreword: Traces of Self-Government’ (1986) 100 Harv LR 4 Michelman FI ‘Possession vs. Distribution’ in the Constitutional Idea of Property’ (1987) 72 Iowa LR 1319 Michelman FI ‘Law’s Republic’ (1988) 97 Yale LJ 1493 Michelman FI ‘Conceptions of Democracy in American Constitutional Argument: Voting Rights’ (1989) 41 Fla LR 443 Michelman FI ‘Family Quarrel’ (1996) 17 Cardozo LR 1163 Michelman FI ‘Morality, Identity and ‘Constitutional Patriotism’’ (1999) 76 Denv U LR 1009 Michelman FI ‘“Democracy-Based Resistance” to a Constitutional Right of Social Citizenship: A Comment on Forbath’ (2001) 69 Fordham LR 1893 Michelman FI ‘The Problem of Constitutional Interpretive Disagreement: Can “Discourse of Application” Help?’ in M Aboulafai et al Habermas and Pragmatism (2002) 113 Miller AO (ed) A Christian Declaration on Human Rights: Theological Studies of the World Alliance of Reformed Churches (1977) Mokyr J The Lever of Riches (1990) Mollendorf D ‘Reasoning about Resources: Soobramoney and the Future of Economic Rights Claims’ (1998) 14 SAJHR 327 Moltmann J The Experiment Hope (1975) Moltmann J On Human Dignity: Political Theology and Ethics (1984) Moltmann J God for a Secular Society: The Public Relevance of Theology (1999) Mongiovi G ‘Distributive Justice: An Economist’s Perspective’ (2004) 13 The Good Society 45 Morton M & F Morton Chocolate: An Illustrated History (1986) Moskop J ‘Rawslian Justice and a Human Rights to Health Care’ (1983) 8(4) Journal of Medicine and Philosophy 329 Mostert H ‘Liberty, Social Responsibility and Fairness in the Context of Constitutional Property Protection and Regulation’ in H Botha, AJ van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 131 Mudge LS The Church as Moral Community: Ecclesiology and Ethics in Ecumenical Debate (1998) Mureinik E ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8 SAJHR 464 N Nedelsky J ‘Reconceiving Rights as Relationship’ (1993) 1 Review of Constitutional Studies 1 Newman KS, No Shame in My Game: The Working Poor in the Inner City (1999) Niebuhr H The Responsible Self. An Essay in Christian Moral Philosophy (1978) North DC ‘Transaction Costs, Institutions, and Economic History’ (1984) 140 Journal of Institutional and Theoretical Economics 7 North DC Institutions, Institutional Change, and Economic Performance (1990) North DC ‘Institutions’ (1991) 5 Journal of Economic Perspectives 97 North DC ‘Five Propositions about Institutional Change’ in J Knight & I Sened (ed) Explaining Social Institutions (1995) 15 Novak WJ The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996) Nozick R Anarchy, State, and Utopia (1974) Nussbaum MC ‘Capabilities, Human Rights and the Universal Declaration’ in B H Weston & S P Marks (eds) The Future of International Human Rights (1999) 25 Nussbaum MC Women and Human Development – The Capabilities Approach (2000) Nussbaum MC ‘The Enduring Significance of John Rawls’ (2001) The Chronicle of Higher Education B7 O O’Connor JS ‘Gender, Class and Citizenship in the Comparative Analysis of Welfare State Regimes: Theoretical and Methodological Issues’ (1993) 44 British J of Sociology 501 Olsen M The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities (1982) Olsen FE ‘The Myth of State Intervention in the Family’ (1985) 18 University of Michigan J of Law Reform 835 Olson M ‘Big Bills left on the Sidewalk: Why Some Nations are Rich, and Others Poor’ in S Knack (ed) Democracy, Governance and Growth (2003) 29 Orloff AS ‘Gender and the Social Rights of Citizenship: The Comparative Analysis of Gender Relations and Welfare States’ (1993) 58 American Sociological Rev 303 P Packard R White Plague, Black Labor: Tuberculosis and the Political Economy of Health and Disease in South Africa (1989) Pavetti LD The Dynamics of Welfare and Work: Exploring the Process by Which Young Women Work Their Way Off Welfare (1993) unpublished PhD dissertation, JFK School of Government, Harvard University Peters AAG ‘Law as Critical Discussion’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 250 Pieterse M ‘Beyond the Welfare State: Globalisation of Neo-liberal Culture and the Constitutional Protection of Social and Economic Rights in South Africa’ (2003) 14 Stellenbosch LR 3 Pieterse E & M van Donk ‘The Politics of Socio-Economic Rights in South Africa. Ten Years after Apartheid’ (2004) 5:5 ESR Review 12 Pillay K ‘Implementation of Grootboom: Implications for the Enforcement of Socio-Economic Rights’ (2002) 6 Law, Democracy & Development 255 Pizzigati S ‘The Left and the Rich’ Paper presented at the Global Left Forum, New York City (2005) Pizzigati S Greed and Good (2005) Pope SJ (ed) The Ethics of Aquinas (2002) Popper KR The Logic of Science (1959) Popper KR The Poverty of Historicism (1961) Popper KR ‘Towards a Rational Theory of Tradition’ in KR Popper (ed) Conjectures and Refutations: The Growth of Scientific Knowledge (1992) 120 Posner RA Overcoming Law (1995) Posner RA ‘Values and Consequences: An Introduction to Economic Analysis of Law’ (1998) Chicago Law & Economics Working Paper no 53 Price M Health Policy and Planning (1986 ) Price M ‘Health Care as an Instrument of Apartheid Policy in South Africa’ (1986) 1 Health Policy and Planning 158 Priest G & W Klein ‘The Selection of Disputes for Litigation’ (1984) 13 J of Legal Studies 1 Bibliography 303 3 0 4 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Q Quint PE ‘The Constitutional Guarantees of Social Welfare in the Process of German Unification’ (1999) 47 Am J Comp L 303 R Radin MJ & FI Michelman ‘Pragmatist and Poststructuralist Critical Legal Practice’ (1991) 139 U Pa LR 1019 Rasmussen LL Moral Fragments and Moral Community: A Proposal for Church in Society (1993) Rawls J Political Liberalism (1996) Rawls J ‘Preface for the French Edition of A Theory of Justice’ in Samuel Freeman (ed) Collected Papers (1999) 415 Rees RM ‘Bite-Sized Marketing: Candy Bars’ in A Szogyi (ed) Chocolate: Food of the Gods (1997) 125 Reich CA ‘The “New Property’’’ (1964) 73 Yale LJ 733 Reich CA ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale LJ 1245 Reich CA ‘The Global Drug Gap’ (2000) 287 Science 1979 Resnik D ‘Developing Drugs for the Developing World: An Economic, Legal, Moral and Political Dilemma’ (2001) 1 Developing World Bioethics 11 Rhodes RP Health Care Politics, Policy and Distributive Justice (1992) Richardson N ‘Ethics of Character and Community’ in C Villa-Vicencio and J de Gruchy (eds) Doing Ethics in Context. South African Perspectives (1994) 89 Robra M Ökumenische Sozialethik (1994) Rodrik D, A Subramanian et al ‘Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development’ (2002) NBER Working Paper 9305 Romer PM ‘The Origins of Endogenous Growth’ (1994) Journal of Economic Perspectives 8 Rorty R Philosophy and the Mirror of Nature (1980) Rorty R Contingency, Irony, and Solidarity (1989) Rorty R Truth and Progress (1998) Roosevelt FD ‘Objectives of the Administration’ (June 8, 1934) in The Public Papers and Addresses of Franklin D Roosevelt (1938) vol 3 291 Roux T ‘Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court’ (2003) 10 Democratization 92 Ross T ‘The Rhetoric of Poverty: Their Immorality, Our Helplessness’ (1991) 79 Georgetown Law Journal 1499 S Sable CF & WH Simon ‘Destabilisation Rights: How Public Law Litigation Succeeds’ (2004) 117 Harvard LR 1016 Sachs A ‘Enforcement of Social and Economic Rights’ Speech at London School Economics Feb 27 2000 Sager LG ‘Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law’ (1993) 88 Nw U LR 410 Sala-i-Martin X ‘The World Distribution of Income’ (2002) NBER Working Paper 8933 Samuelson PA ‘Some Uneasiness with the Coase Theorem’ (1993) 7 Japan and the World Economy 1 Sandel MJ Democracy’s Discontent: America in Search of a Public Philosophy (1996) Sandel MJ Liberalism and the Limits of Justice (1998) Schachter O ‘Human Dignity as a Normative Concept’ (1983) 77 Am J of Int Law 848 Schachter O ‘Human Dignity as a Value – Part I’ (1999) 14 Public Law 682 Schachter O ‘Human Dignity as a Foundational Value of our Constitutional Order’ (2000) 16 SAJHR 193 Schaeffer J ‘WARC’s Historic Commitments to Justice and Human Rights’ (1998) 48 Reformed World 63 Schauer F ‘Judging in a Corner of the Law’ (1988) 61 Southern California LR 1717 Schauer F Playing by the Rules: A Philosophical Examination of Rule-Based Decision-making in Law and in Life (1991) Scheppele KL ‘A Realpolitik Theory of Social Rights’ (2004) 82 Tex LR 1921 Schultz V ‘Life’s Work’ (2000) 100 Col LR 1881 Sen A Choice, Welfare and Measurement (1982) Sen A The Penalties of Unemployment (1997) Banca D’Italia Working Paper No 307 Sen A ‘The Possibility of Social Choice’ (1999) 89 American Economic Review 349 Sen A Development as Freedom (1999) Sen A The Penalties of Unemployment (1997) Banca D’Italia Working Paper No 307 Sened I ‘The Emergence of Individual Rights’ in J Knight & I Sened (ed) Explaining Social Institutions (1995) 161 Shapiro M & A Stone Sweet On Law, Politics, and Judicialization (2002) Singer JW ‘The Player and the Cards: Nihilism and Legal Theory’ (1984) 94 Yale LJ 1 Singer P (ed) A Companion to Ethics (2002) Skocpol T Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) Sloth-Nielsen J ‘The Right to Social Services, the Right to Social Security, and the Primary Prevention of Child Abuse in the Aftermath of Grootboom’ (2001) 17 SAJHR 210 Smit DJ ‘Die Droom van Bybelse Geregtigheid’ (1985) 15 Scriptura 51 Smit DJ ‘Paradigms of Radical Grace’ in C Villa-Vicencio (eds) On Reading Karl Barth in South Africa (1988) 33 Smit DJ ‘Die Bergrede en Christelike Etiek’ in CW Burger et al (eds) Riglyne vir Prediking oor die Bergrede (1990) 34 Smit DJ ‘Die Bergrede in die Geskiedenis’ in CW Burger et al (eds) Riglyne vir Prediking oor die Bergrede (1990) 11 Smit DJ ‘Oor die Prediking van Regverdiging en Reg’ in BA Müller et al (eds) Riglyne vir Prediking oor Regverdiging en Reg. Woord teen die Lig III/3 (1993) 1 Smit DJ and JL De Villiers ‘Hoe Christene in Suid-Afrika by Mekaar Verby Praat ... Oor Vier Morele Spreekwyses in die Suid-Afrikaanse Kerklike Konteks’ (1994) 15 Skrif en Kerk 228 Smit DJ ‘Oor die Unieke Openbare Rol van die Kerk’ (1996) 36 Tydskrif vir Geesteswetenskappe 190 Smit DJ ‘Oor die Kerk as ‘n Unieke Samelewingsverband’ (1996) 36 Tydskrif vir Geesteswetenskappe 119 Smit DJ ‘Reformed Ethics and Economic Justice’ (1996) 37 Nederduitse Gereformeerde Teologiese Tydskrif 438 Smit DJ ’Oor die Kerk as Unieke Samelewingsverband’ (1996) Tydskrif vir Geesteswetenskappe 119 Smit DJ ’Oor die Unieke Openbare Rol van die Kerk’ (1996) Tydskrif vir Geesteswetenskappe 190 Smit DJ ‘Seeing Things Differently – On Prayer and Politics’ in L Holness & RK Wüstenberg (eds) Theology in Dialogue: The Impact of the Arts, Humanities, and Science on Contemporary Religious Thought: Essays in Honor of John W de Gruchy (2002) 271 Smit DJ ‘Liberty/Freedom’ in N Lossky et al (eds) Dictionary of the Ecumenical Movement (2002) Smit DJ ‘On Learning to See? A Reformed Perspective on the Church and the Poor’ in P Couture & BJ Miller-McLemore (eds) Suffering, Poverty, and HIV-AIDS (2003) 55 Smit DJ ‘Oor die God wat Ons Roep’ in Handelinge van die NGK in SA (Wes- en Suid-Kaapland) (2003) H99 Smit DJ ‘Openbare Getuienis en Publieke Teologie Vandag?’ (2003) 82 Scriptura 39 Smit DJ ‘Oor die Kerk en Maatskaplike Uitdagings in Ons Land’ (2004) 45 Nederduitse Gereformeerde Teologiese Tydskrif 350 Bibliography 305 3 0 6 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Smit DJ ‘The Impact of the Church in South Africa after the Collapse of the Apartheid Regime’ in K Bediako et al (eds) A New Day Dawning: African Christians living the Gospel (2004) 128 Smit DJ ‘Theologische Ansätze für kirchliches Engagement in Fragen der Globalisierung - Reformierte Perspektiven aus dem Südlichen Afrika’ 2004 Ökumenische Rundschau 160 Smith A The Wealth of Nations (1937) Smith A An Inquiry into the Nature and Causes of the Wealth of Nations (1950) Smith JF ‘Vote Denied to Mexicans Living Abroad’ (1999) 2 July Los Angeles Times A1 Smith RKM Textbook in International Human Rights (2003) Simitis S ‘Juridification of Labor Relations’ in G Teubner (ed) Juridification of Social Spheres (1987) 113 Soifer A ‘The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921’ (1987) 5 Law & History Review 252 Spalter-Roth R Making Work Pay: The Real Employment Opportunities of Single Mothers Participating in the AFDC Program (1994) Spragens T ‘Review Essay: Justice, Consensus, and Boundaries: Assessing Political Liberalism’ (2003) 31 Political Theory 589 Stone RH Reinhold Niebuhr: Prophet to Politicians (1981) Streak J & J Wehner ‘Children’s Socio-Economic Rights in the South African Constitution: Towards a Framework for Monitoring Implementation’ in E Coetzee & J Streak (eds) Monitoring Child Socio- Economic Rights in South Africa: Achievements and Challenges (2004) 50 Stern L ‘Opportunity and Health Care: Criticims and Suggestions’ (1983) 8(4) Journal of Medicine and Philosophy 339 Stewart RB & CR Sunstein ‘Public Programs and Private Rights’ (1982) 95 Harv LR 1195 Steyn LC ‘Regsbank en Regsfakulteit’ (1967) 30 THRHR 101 Stiglitz JE ‘Principal and Agent’ in J Eatwell, M Milgate & P Newman (eds) The New Palgrave Dictionary of Economics (1987) 966 Sunstein CR ‘On Property and Constitutionalism’ (1991) Chicago Law and Economics Working Paper no 3 Sunstein CR ‘Social and Economic Rights? Lessons from South Africa’ (2001) Chicago Law and Economics Working Paper no 124 Sunstein CR ‘The Second Bill of Rights: The Last Great Speech of Franklin Delano Roosevelt and America’s Unfinished Pursuit of Freedom’ (prelim draft 26 July 2003) Sunstein CR The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (2004) T Tanzi V ‘The Changing Role of the State in the Economy’ (1997) IMF Working Paper WP/97/114 Tanzi V ‘The Role of the State and the Quality of the Public Sector’ (2000) IMF Working Paper WP/00/36 Taylor MCE Erring: A Postmodern A/theology (1984) Trengove W ‘Judicial Remedies for Violations of Socio-Economic Rights’ (1999) 1 ESR Rev 8 Teubner G ‘The Transformation of Law in the Welfare State’ in G Teubner (ed) Dilemmas of Law in the Welfare State (1986) 3 Teubner G ‘Juridification Concepts, Aspects, Limits, Solutions’ in G Teubner (ed) Juridification of Social Spheres (1987) 16 Toebes BCA The Right to Health as a Human Right in International Law (1999) Torrance TF Karl Bath: An Introduction to his Early Theology, 1910-1931 (1960) Townsend P et al The Black Report and the Health Divide (1990) Tracy D The Analogical Imagination. Christian Theology and the Culture of Pluralism (1981) Tushnet M ‘State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations’ (2002) 3 Chi J Intl L 435 Tushnet M ‘Strong Rights, Weak Courts’ (2004) 82 Tex LR 1895 V Van Blerk A ‘The Irony of Labels’ (1982) 99 SALJ 365 Van Blerk A Judge and Be Judged (1988) Van den Brink G Een Publieke Zaak. Theologie tussen Geloof en Wetenskap (2004) Van der Berg S & R Burger ‘Social Delivery in South Africa’ (2003) Stellenbosch Report prepared for the CDE Van der Westhuizen J ‘The Human Rights Debate in South Africa’ in K Nürnberger (ed) A Democratic Vision for South Africa. Political Realism and Christian Response (1991) 471 Van der Walt AJ ‘A South African Reading of Frank Michelman’s Theory of Social Justice’ in H Botha, A van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 163 Van Marle K ‘Love, Law and the South African Community: Critical Reflections on “Suspect Intimacies” and “Immanent Subjectivity”’ in H Botha, A van der Walt & J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2004) 231 Van Marle K ‘‘‘No Last Word” – Reflections on the Imaginary Domain, Dignity and Intrinsic Worth’ (2002) Stell LR 299 Van Marle K ‘Revisiting the Politics of Post-Apartheid Constitutional Interpretation’ (2003) TSAR 549 Van Marle K ‘‘‘The Capabilities Approach”, “The Imaginary Domain”, and “Asymmetrical Reciprocity”: Feminist Perspectives on Equality and Justice’ (2003) 11 Feminist Legal Studies 255 Van Parijs P Real Freedom for All (1995) Van Rensburg HCJ ‘South African Health Care in Change’ (1991) 22 SA Journal of Sociology 1 Van Rensburg HCJ Health Care in South Africa: Structure and Dynamics (1992) Van Rensburg HCJ ‘Health and Health Care in South Africa in Transition: A Macro Perspective’ (1999) 31 Acta Academica 1 Van Rensburg HCJ & SR Benatar ‘The Legacy of Apartheid in Health and Health Care’ (1993) 24 SA Journal of Sociology 99 Van Rensburg HCJ & Fourie A ‘Privatisation of South African Health Care: In Whose Interest?’ (1988) 11 Curationis 1 Van Rensburg HCJ & C Ngwena ‘Health and Health Care in South Africa against an African Background’ in WC Cockerham (ed) The Blackwell Companion to Medical Sociology (2001) 365 Villa-Vicencio C A Theology of Reconstruction – Nationbuilding and Human Rights (1992) Voss G et al ‘Menschenwürde neu Buchstabieren’ (2000) 55 Una Sancta - Zeitschrift für ökumenische Begegnung 97 W Wacks R ‘Judges and Injustice’ (1984) 101 SALJ 266 Waldron J Liberal Rights: Collected Papers 1981-1991 (1993) Walshe P ‘Christianity and the Anti-apartheid struggle: The Prophetic Voice within Divided Churches’ in R Elphick & R Davenport (eds) Christianity in South Africa. A Political, Social and Cultural History (1997) 383 Walzer M ‘Philosophy and Democracy’ (1981) 9 Pol Theory 379 Ward G (ed) The Postmodern God: A Theological Reader (1998) Weingärtner E ‘Human Rights’ in N Lossky et al (eds) Dictionary of the Ecumenical Movement (2002) 548 Bibliography 307 3 0 8 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Welker M ‘Security of Expectations’ (1986) 66 Journal of Religion 237 Welker M ‘Dynamiken der Rechtsentwicklung in den biblischen Überlieferungen’ in A Aarnio (ed) Rechtsnorm und Rechtswirklichkeit: Festschrift für Werner Krawietz zum 60. Geburtstag (1993) 779 Welker M ‘Moral, Recht und Ethos in evangelisch-theologischer Sicht’ in W Härle & R Preul (eds) Ethik und Recht (2002) 67 Wellman C ‘The Proliferation of Rights: Moral Progress or Empty Rhetoric?’ in L Gearon (ed) Human Rights & Religion (2002) 368 Williams L ‘The Ideology of Division: Behavior Modification Welfare Reform Proposals’ (1992) 102 Yale L J 719 Williams L Decades of Distortion: The Right’s 30-Year Assault on Welfare (1997) Williams L ‘Welfare Law and Legal Entitlements: The Social Roots of Poverty’ in D Kairys (ed) The Politics of Law: A Progressive Critique (1998) 569 Williamson OE ‘Contract Analysis: The Transaction Cost Approach’ in P Burrows & CG Veljanovski (eds) The Economic Approach to Law (1981) 39 Wilson S ‘Taming the Constitution: Rights and Reform in the South African Education System’ (2004) 20 SAJHR 418 Wilson WJ When Work Disappears: The World of the New Urban Poor (1996) Winfield RD The Just Economy (1990) Witte J ‘The Study of Law and Religion: An Apologia and Agenda’ (1988) Ministry and Mission 14 Wogaman JP Christian Moral Judgment (1988) Wogaman JP Christian Perspectives on Politics (2000) Y Yergin D & J Stanislaw The Commanding Heights (1998) Yoon YH, R Spalter-Roth & M Baldwin Unemployment Insurance: Barriers to Access for Women and Part-Time Workers (1995) Yuval- Davis N ‘Women, Citizenship and Difference’ (1997) 57 Feminist Rev 4 Z Zucker R Democratic Distributive Justice (2002) Zucker R ‘Democracy and Economic Justice’ Paper presented at the annual meeting of the American Political Science Association 23 August 2003 Zucker R ‘On the Future of the Justice Debates’ (2004) 13 The Good Society 67 Cases Alexkor Ltd and Another v Richtersveld Community and Others 2004 (5) SA 460 (CC) 210 Atkinson v Van Wyk and Another 1999 (1) SA 1080 (LCC) 203 August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) 143, 165 B v Minister of Correctional Services 1997 (6) BCLR 789 (C) 194, 195 Baartman v Port Elizabeth Municipality 2004 (1) SA 560 (SCA) 26 Bergboerdery v Makgoro 2000 (4) SA 575 (LCC) 203 Bernstein v Bester 1996 (2) SA 751 (CC) 142 Brink v Kitshoff NO 1996 (4) SA 197 (CC 152 Connors v The United Kingdom 2005 (40) EHRR 189 161 Conradie v Hanekom and Another 1999 (4) SA 491 (LCC) 221, 222 Cooper v Laupheimer 316 F Supp 264 (ED Pa 1970) 81 Cruzan v Director, Missouri Department of Health et al 497 US 261 (1990) 28 Dandridge v Williams 397 US 471 (1970) 85, 86, 88, 95 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) 142,143 Dandridge v Williams 397 US 471 (1970) 9 DeShaney v Winnebago County Dept of Social Services 489 US 189 (1989) 73, 98 Douglas v California 372 US 353 (1963) 87, 88 Eldridge v British Columbia (Attorney General) (1997) 151 DLR (4th) 577 (SC) 163, 163 Ex parte Chairperson of the Constitutional Assembly 1996 (4) SA 744 (CC) 38 Ex parte Geldenhuys 1926 OPD 155 212 Ferreira v Levin NO 1996 (1) SA 984 (CC) 148 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) 37 Gideon v Wainwright 372 US 335 (1963) 88 Goldberg v Kelly 397 US 254 (1970) 9, 12, 79, 82, 83, 84, 85, 242 Gosselin v Quebec (Attorney General) 2002 SCC 84 221 DLR (4th) 141, 151, 152, 153, 155, 156, 157, 158, 160 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 3, 18, 26, 27, 28, 31, 33, 35, 54, 143, 144, 148, 154, 155, 158, 159, 160, 161, 164, 165, 192, 193 Griffin v Illinois 351 US 12 (1956) 8 Hlatshwayo v Hein 1999 (2) SA 834 (LCC) 205 Hagans v Lavine 415 US 528 (1974) 79 Harksen v Lane NO and Others 1998 (1) SA 300 (CC) 143, 144, 153 Harper v Virginia Board of Elections 383 US 663 (1966) 8, 87 Hoffman v SAA 2000 (11) BCLR 1211 (CC) 151 Holley v Lavine 553 F2d 845 (2d Cir 1977) 81 In re Jobes 529 A2d 434 (NJ S Ct 1987) 28 In re Macleantown Residents Association: Re Certain Erven and Commonage in Macleantown 1996 (4) SA 1272 (LCC) 206, 207 JA v Riti 377 F Supp 1046 (DFNJ 1974) 81 Jackson v City of Joliet 715 F 2d 1200 (7th Cir) (1983) 7 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (1) BCLR 78 (CC) 143, 160 Jooste v Botha 2002 (2) BCLR 187 (T) 29 3 1 0 T H E O R I E S O F S O C I A L A N D E C O N O M I C J U S T I C E Karabo and Others v Kok and Others 1998 (1) SA 1014 (LCC) 205 Khosa v Minister of Social Development 2004 (6) SA 505 (CC) 18, 25, 33, 34, 150, 151, 161, 162, 163, 164, 166 King v Smith 392 US (1968) 79, 80, 95 Khuzwayo v Dludla [2000] 4 All SA 329 (LCC) 203 Landbou Navorsingsraad v Klaasen LCC Case 83R/01 (unreported 29 October 2001) 21, 222 Lategan v Koopman en Andere 1998 (3) SA 457 (LCC) 203 Law v Canada (Minister of Employment and Immigration) (1999) 170 DLR (4th) 153 Lewis v Martin 397 US 552 (1970) 81 Magodi and Others v Van Rensburg [2001] 4 All SA 485 (LCC) 204 Mahlangu and Another v Van Eeden and Another [2000] 3 All SA 321 (LCC) 203 Mahlangu v De Jager 1996 (3) SA 325 (LCC) 203, 205 Mashavha v President of the RSA & Others 2004 (12) BCLR 1243 (CC) 152 Maryland v Mathews 415 F Supp 1206 (DDC 1976) 81 Minister of Finance & Another v Van Heerden 2004 (11) BCLR 1125 (CC) 145 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) 18, 24, 25, 29, 30, 31, 32, 33, 53, 54, 151, 154, 155, 159, 160, 165, 192, 193, 194 Minister of Home Affairs and Others v Watchenuka and Another 2004 (2) BCLR 120 (SCA) 150, 151, 153, 154 Minister of Land Affairs and Another v Slamdien and Others [1999] 1 All SA 608 (LCC); 1999 (4) BCLR 413 (LCC) 208 Modderfontein Squatters v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA) 18, 25, 33, 35 Muller v Oregon 208 US 412 (1908) 14 National Coalition for Gay & Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC) 42, 143, 145, 146, 184 Nevada Department of Human Resources v Hibbs 123 S Ct 1972 (2003) 106 Nhlabati v Fick [2003] 2 All SA 323 (LCC) 3, 214 Nkosi and Another v Buhrmann 2002 (1) SA 372 (SCA) 213 Ntai and Others v Vereniging Town Council and Another 1953 (4) SA 579 (A) 211 Owens v Roberts 377 F Supp 45 (MD Fla 1974) 81 Pitout v Mbolane [2000] 2 All SA 377 (LCC) 203 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)3, 18, 27, 33, 34, 35, 150, 151 President of the Republic of South African and Another v Hugo 1997 (4) SA 1 (CC) 150 Prince v President of the Law Society of the Cape of Good Hope & Others 2002 (2) SA 794 (CC) 148 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) 152 R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA) 27, 197 Richtersveld Community v Alexkor Ltd and Another 2000 (1) SA 337 (LCC) 208, 209 Rosado v Wyman 397 US 397 416-17 (1970) 81 Rothstein v Wyman 303 F Supp 339 (SD FNY 1969) 87 S v Makwanyane & Another 1995 (3) SA 391 (CC) 143, 145, 149, 150, 196 S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) 144 San Antonio Independent School District v Rodriguez 411 US 1 (1973) 85, 88 Serole and Another v Pienaar 2000 (1) SA 328 (LCC) 205, 222 Shapiro v Thompson 394 US 618 (1969) 79, 81, 82, 87 Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561 (LCC) 203, 205 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) 18, 25, 27, 28, 31, 32, 55, 144, 148, 149, 150, 194, 196, 197 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria Communication No 155/96 October 2001 (African Commission on Human and Peoples’ Rights) 143, 148 Tucker v Toia 371 NE 2d 449 (NY 1977) 11 Van Lare v Hurley 421 US 338 (1975) 81 Van Zyl NO v Maarman [2000] 4 All SA 212 (LCC) 203 Williams v Dandridge 297 F Supp 450 469 (D Md 1968) 85 Cases 311 Legislation and Policy Documents Advisory Council on Unemployment Compensation, Report and Recommendations (Washington, DC: US Government Printing Office 1995) 247 African Charter of Human and People’s Rights (1981) 148 Choice on Termination of Pregnancy Act 92 of 1996 191 Constitution of the Republic of South Africa Act 200 of 1993 179, 199, 208 Constitution of the Republic of South Africa Act 108 of 1996 164, 165, 167, 169, 179, 190, 192, 193, 203, 235 Constitucion Politica de los Estados Unidos Mexicanos, art 30 (amended 1996) 253 Convention on the Elimination of All Forms of Discrimination Against Women (1979) 183 Convention of the Rights of the Child (2002) 183 Department of Health National HIV and Syphilis Sero-Prevalence Survey of Women Attending Ante-Natal Clinics in South Africa in 2001 (2003) 193 Department of Health Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa (2003) 193 Dutch Reformed Church in Africa ‘Transition and Poverty’ (1990) 2/90 (Supplement) DRCA Action Economic Justice in South Africa : A Pastoral Statement (1999) 231 Evangelical Church in Germany and the German Bishops’ Conference For a Future Founded on Solidarity and Justice: A Statement of the Evangelical Church in Germany and the German Bishops’ Conference on the Economic and Social Situation in Germany (1997) 231 Extension of Security of Tenure Act 62 of 1997 203, 205, 210, 212, 213, 220, 221, 222, 223 Gluckman Commission Report of the National Health Services Commission (1944) 186, 187 International Covenant on Economic, Social and Cultural Rights (1966) 183, 183, 168, 169, 183 Land Affairs General Amendment Act 51 of 2001 214 Land Reform (Labour Tenants) Act 3 of 1996 203 Land Restitution and Reform Laws Amendment Act 18 of 1999 206 MarketResearch.com Academic The Chocolate Market (2001) Web publication www.academic.marketresearch.com/product/print/default.asp 283, 284, 285 Medical Schemes Act 131 of 1998 191 Medical Research Council Changing Health in South Africa: Towards New Perspectives in Research (1991) 188 Medicines and Related Substances Act 90 of 1997 191 National Compensation Survey: Occupational Wages in the United States, 2001 288 National Health Act 63 of 1977 179, 189 National Health Act 61 of 2003 179, 191, 192 Natives Land Act 28 of 1913 208 Nelson Mandela Foundation/HSRC Report Emerging Voices: A Report on Education in South African Rural Communities (2002) 59 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 26, 146 Public Health Act 1919 79, 185 Restitution of Land Rights Act 2 of 1994 199, 203, 206, 208, 220, 223, 224 RES Testimony on Human Rights (1983) 223 Social Assistance Act 59 of 1992 26 Social Security Act 1935 (US) 79, 84 Staff of House Committee on Ways and Means Background Material and Data on Programs. Within the Jurisdiction of the Committee on Ways and Means (1996) 104th Cong 2d Sess 246 The Confession of Belhar (1986) 129, 225 The Kairos Document: Challenge to the Church: a Theological Comment on the Political Crisis in South Africa (1985) 129 United Nations General Comment No 3 (Fifth session, 1990) The Nature of States Parties Obligations (art 2(1) of the Covenant), UN doc E/1991/23 163 United Nations General Comment (2003) Human Security Now, presented to the United Nations Secretary-General, Kofi Annan on 1 May 2003 57 United Nations General Assembly (1948) Universal Declaration of Human Rights adopted 10 December 1948 168 US Dept of Justice, Immigration and Naturalization Service, 1996 Statistical Yearbook of the Immigration and Naturalization Service (1997) 253 White Paper on Transformation of the Health System in South Africa (1997) 179, 190 World Bank World Development Report 2002. Building Institutions for Markets (2002) 46 World Health Organisation Global Strategy for Health for All by the Year 2000 (1981) 190 Legislation and Policy Documents 313 Index Anti-paternalism 6, 13 Children 29, 77, 80, 85 Citizenship 153, 240, 249, 280 Civic Republicanism 7, 74, 98, 100 Civil society / NGOs 33, 129, 131, 135, 177, 237 Communitarianism 34, 280 Critical theories 6, 199, 227, 230, 239 Depoliticisation 18, 21, 25, 36 Development economics 40, 51 Dignity-based theories 90, 92, 141, 143, 145, 152, 232 Directive principles 104 Due process-based theories 3, 242 Durkheim, Emile 108 Economic theory 4, 37, 41, 51, 52, 109, 168, 170, 256, 257, 261, 267, 274, 276, 285, 287 Egalitarian vs libertarian theories 180, 256, 270 Equality-based theories 2, 69, 87, 144, 153, 256, 260, 261 Fraser, Nancy 19 Fundamentalism 68 Hayek, Friedrich von 43, 51, 171 Health care 26, 27, 29, 151, 165, 179, 193, 194, 196 HIV/Aids 18, 19, 26, 30, 33, 58, 151, 192, 193, 194, 195 Homelessness and housing 26, 28, 33, 35, 58, 192, 199, 206, 208, 210 Institutional argument 32, 49, 61, 112, 175, 222 Institutional capacity 30, 31, 60, 93, 96, 103 Judicial review / overview 31, 32, 35, 49, 53, 154, 159, 160, 165 199, 206 Justiciability 93, 96, 103, 142 Klare, Karl 17, 49, 218 Labour rights / employment 89, 239, 240, 245, 251 Legal Realism 6, 8, 11, 12 Michelman, Frank 2, 9, 72, 73, 79, 86, 90, 98 Millennium Development Goals (UN) 58 Minimum / core rights 30, 85, 86, 155, 158, 160, 166, 168, 169, 183 Morality-based theories 57, 61, 115, 120, 261, 276 Needs-based theories 2, 86, 154 Negative vs positive rights 7, 48, 49, 108, 111, 149 New Deal 15, 73, 76, 84 New Institutional Economics 38, 43, 44, 49, 112 New Property 9, 82 Normality assumption 3, 241 Normative theories 39, 226, 276 Positive social science 37, 38, 39, 41, 52, 53, 54 Posner, Richard 7, 8 Poverty 9, 15, 19, 21, 60, 79, 241, 260 Progressive realization 47 Public choice theory 40, 41 Public vs private 32, 61, 65, 114, 240, 245 Race 77, 78, 188, 189, 208, 210 Rawls, John 74, 86, 90, 124, 171, 180, 258 Reich, Charles 2, 9, 12, 15, 82 Rhetoric 24, 25, 28, 33, 36, 244, 254 Roosevelt, Franklin D 8, 15 Sen, Amartya 60, 67, 172, 174 Social citizenship 89, 97, 101, 103, 105, 240, 249, 276 Social Darwinism 13 Sunstein, Cass 6, 9 Theological theory 62, 63, 64, 67, 69, 128, 133, 225 ‘Theory drag’ 3, 38, 39, 128, 214, 215, 225, 234 ‘Theory matters’ 3, 38, 39, 57, 128, 225, 226 Transformative Constitutionalism 17, 49, 50, 199, 214, 215, 218 War on Poverty 9, 15, 75, 78, 89 Welfare rights 9, 10, 75, 76, 78, 79, 82, 85, 100, 101, 105, 150, 239, 241, 246, 252 Index 315 Th eor ies o f So cia l an d E co no m ic J us tic e Theories of Social and Economic Justice T h eories of S ocial an d E con om ic Ju stice A J van d er W alt Edited by AJ van der Walt T he bulk of the contributions in Theories of Social and Economic Justice originated in a research project initiated by the Stellenbosch Institute for Advanced Study (STIAS) in 2002. STIAS hosted a workshop in July 2004 in which researchers from Law, Economics, Theology and Sociology participated, and some of the contributions at the workshop were subsequently reworked into chapters for this book. In addition, colleagues, both in South Africa and abroad, who had not participated in the workshop but whose recently published work on social and economic justice fitted in with the project extremely well, gave permission to re-publish their articles in the book. The book is based on the idea that the attainment of greater social and economic justice, specifically in the South African context, is strongly influenced by the implications and the coherence of various theories of social and economic justice. Furthermore, it is argued that the promotion and protection of social and economic justice need to be approached from different theoretical perspectives when considering different practical circumstances, contexts and dilemmas. One theoretical size simply does not fit all, as far as social and economic justice is concerned. The range of theoretical approaches represented in this book – legal, economic, theological and sociological – is testimony to the truly cross- and multi-disciplinary nature of the contributions. Apart from leading South African scholars in Law, Economics, Theology and Sociology, four contributions from American academics are included: Professors Gregory Alexander (Cornell Law School), William Forbath (University of Texas), Lucy Williams (Northeastern University), and Ross Zucker (Lander College). AJ van der Walt is professor in the Faculty of Law at Stellenbosch University and author of Constitutional Property Clauses: A Comparative Analysis (1999) and Constitutional Property Law (2005). He is also a co-editor, with H Botha and J van der Walt, of Rights and Democracy in a Transformative Constitution (2004, AFRICAN SUN MeDIA). THEORIES finaal Q5 2/8/05 9:15 Page 1 Preface Socio-Economic Rights in American Perspective: The Tradition of Anti-Paternalism in American Constitutional Thought The ‘Politics of Need Interpretation’ and the Adjudication of Socio-Economic Rights Claims in South Africa New Tools for the Constitutional Bench Social Justice and Theological Method A Not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present The Just Community: Emile Durkheim on Liberalism and Society Theology and the Fulfillment of Social and Economic Rights: Some Theoretical Considerations The Value of Human Dignity in Interpreting Socio-Economic Rights The Fiscal Implications of Social and Economic Justice: An Overview of the Changing Theoretical Framework The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism Pro-Poor Court, Anti-Poor Outcomes: Explaining The Performance of the South African Land Claims Court On Social and Economic Justice in South Africa Today: A Theological Perspective on Theoretical Paradigms Beyond Labour Law’s Parochialism: A Re-envisioning of the Discourse of Redistribution Opening the Door to More Equality Bibliography Cases Legislation and Policy Documents Index Button1: 
work_dlwvfv2wsbh5zehbxzlfb2vcga	----	TRR 2013 8 DATA NEEDS AND AVAILABILITY Collecting the appropriate types of data in sufficient quantities for rigorous analysis is a challenge that pervades all of transportation planning. This section looks at five types of data that are needed for determining the EJ implications of a long-range plan, compar- ing what is currently available with what is ideally needed for both a base year and future years. The data types considered are the spa- tial distributions of race and income, the spatial distributions of trip ends, trip tables, network performance, and cost estimates of improvements. When any type of data are obtained, their accuracy should be questioned. Long-range plans, or metropolitan transportation plans (MTPs), forecast anywhere from 20 to 50 years into the future. Demo- graphics forecasts are known to be subject to much uncertainty (13), and the finer the level of data required (i.e., locations of retail busi- nesses instead of locations of total businesses) and the longer the amount of time between the base and forecast years, the more uncer- tainty there is. Hirschman details the assumptions in projections of demographics by race and ethnicity (14), and Smith and Nogle study projections of the Hispanic population and conclude that the errors tend to be larger for this group than for the total population (15). Spatial Distribution of Race and Income The decennial census provides information on the race of each per- son and the income level of each household at the block group level. For most MPOs, demographic forecasts output total residents and total employment by type in each zone or district, but they do not forecast the spatial distribution of race or income. Without predic- tions of the spatial distributions of race and income, the distributions in future years are typically assumed to be the same as those in the base year. A comparison of the 1990 and the 2000 census data for many regions shows that this assumption is a poor one, but there are few alternatives. Purvis describes the difficulty in obtaining predic- tions of race and income for EJ analyses, commenting that federal and state forecasts typically continue past trends (16 ). Spatial Distribution of Trip Ends In a growing region, keeping abreast of new developments (i.e., sub- divisions and shopping centers) can be a full-time job, and pre- dicting the location of development years into the future is nearly impossible. Despite the availability of data on existing develop- ments, trends, topography, and land use restrictions, the locations chosen by developers are not predictable with any degree of accu- racy. The uncertainty about future development is important not only for determining future trip tables but also for determining future Environmental Justice Analysis Challenges for Metropolitan Transportation Planning Jen Duthie, Ken Cervenka, and S. Travis Waller This research focuses on three major challenges of incorporating envi- ronmental justice into metropolitan transportation planning. The data needed are compared with the data currently available on the spatial distributions of race and income, the spatial distributions of trip ends, trip tables, network performance, and cost estimates of improvements. Several conflicting definitions of equity are offered, as are applications for each within the context of environmental justice. The importance of choosing a correct unit of analysis is discussed, with particular emphasis on how the geographic unit of analysis is a poor proxy for the group unit, which is theoretically required, as the analysis’s purpose is to compare performance measures across groups. The primary goal of this paper is to explore challenging topics such as these raising questions and con- cerns. The answers to the questions raised will differ depending on each implementing agency’s objectives and resources. In the 12 years since Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations (1), was issued, much progress has been made in formalizing environmental justice (EJ) analyses within transportation planning. However, as metropolitan planning organizations (MPOs) produce long-range plans approximately every 5 years, formal EJ analyses of these plans are still in their infancy. To date, most of the research on EJ analyses in transportation planning has focused on specific analysis techniques (2, 3) or the equity impacts of specific projects (4–7), modes (8–10), and fund- ing structures (11, 12). Although such discussions are of obvious importance, this paper focuses on three major challenges that have received limited attention in the context of long-range planning: 1. Collecting the needed data, 2. Coming to a consensus on how equity should be defined and applied in the context of EJ, and 3. Using an appropriate unit of analysis The goal of this paper is to explore these challenging topics, raising questions and concerns; it is not to offer specific recommendations to public agencies. The following sections are devoted to addressing the three challenges mentioned above, and the paper concludes with a summary and a discussion of research needs. J. Duthie, 6.506 ECJ Hall, and S. T. Waller, 6.204 ECJ Hall, Department of Civil, Architectural, and Environmental Engineering, University of Texas at Austin, 1 Uni- versity Station, C1761, Austin, TX 76011. K. Cervenka, North Central Texas Coun- cil of Governments, 616 Six Flags Drive, Centerpoint Two, Arlington, TX 76005. Corresponding author: J. Duthie, jduthie@mail.utexas.edu. Transportation Research Record: Journal of the Transportation Research Board, No. 2013, Transportation Research Board of the National Academies, Washington, D.C., 2007, pp. 8–12. DOI: 10.3141/2013-02 Duthie, Cervenka, and Waller 9 accessibility to important locations. Several MPOs compare access to critical nonwork locations, such as schools and health care facil- ities, by protected and unprotected classes. As residential and com- mercial developments sprawl, so do schools and hospitals. However, without more information, the locations of these facilities are assumed to remain unchanged in the future. Increased cooperation between transportation and land use planners and school and hospital admin- istrators could reduce the level of surprise at new developments. Even current year data can be difficult to work with in some cases because not all health care facilities accept low-income people, not every job is suited for every person, and not all children can attend their neighborhood school. Trip Tables Accurate trip tables are important for the many EJ performance mea- sures related to accessibility, as they can be used to compare travel times to employment and other critical locations. [A comprehensive overview of such measures has been presented previously (17 ).] If trip tables were available by minority and income classes, much more could be done to measure accessibility. Segmented trip tables would allow the analysis of selected links to determine how many people from each class will benefit from a particular roadway or transit proj- ect. Without this, accessibility measures must assume that the percent- age of trips between each origin–destination pair made by a specific class is equal to the percentage of residents at the origin that are a member of the class. This assumption is rather arbitrary and could be improved by the use of information from household survey data. A second issue with future-year trip tables related to EJ is the poten- tial to reinforce existing inequities. According to Deka, “if workers who live in predominantly low-income and minority areas have short commutes at present, computer models will predict a short commute for them in the future as well, regardless of their true commuting needs” (18). This observation implies that network improvements may be based on the paths where people currently are traveling, not on the paths where they would like to travel. By making it easier for them to travel on their current path, they are being helped with con- tinuing the status quo rather than helped with getting where they would like to go. This concern is much greater with gravity-based models than with models that use destination choice. Network Performance Measures of network performance based on the results from a travel model are limited mostly to expected volumes, delays, and travel times. As models are calibrated to expected conditions, the model re- sults, including EJ-related performance measures, are approximates of the expected performance. Unfortunately, this process leaves out one important measure of performance: reliability. Performance mea- sures that capture the reliability of travel times would aid not only EJ analysis but also other transportation analyses. The resulting perfor- mance measures may be misleading if average measures are used because two groups may have the same average time, but one group’s access may vary much more from day to day. Data collected from intelligent transportation systems can aid with the collection of the large amounts of data required to obtain an accurate representation of current reliability. Future reliability may be more difficult to discern, but as research is conducted on trends that have led to the current levels of reliability, the ability to predict future levels of reliability will be improved. Cost Estimates of Improvements As will be discussed in the following section, EJ can be defined in terms of the impacts (i.e., travel time changes) on each population or in terms of the funding spent on improving conditions for each popu- lation. To estimate equity in funding, accurate cost estimates must be obtained for each improvement specified in the long-range plan. The difficulties with this method are the assumptions made for inflation rates and the costs of construction in future years. Also, the MTP may specify categories of spending instead of specific projects, making the benefit to each population group impossible to discern. State-of-the-art travel models that rely on microsimulation to track activity patterns promise to alleviate some of these data issues. Household survey data could perhaps be used more extensively to synthesize trip tables and the behavior specific to each population group. There is, however, the danger that such tools will improve the precision of the results without improving the accuracy. The following section describes the various ways in which equity may be defined in the context of EJ. EQUITY This section reviews several definitions of equity presented in the literature, three main applications of equity in long-range planning, and multiple methods for approaching the time frame and scope of analysis. The purpose of this section is to stress that the calculation of performance measures is a futile effort unless it is certain what type of equity is achieved, because after the calculations are com- plete, there will be numbers that cannot provide a sense of whether or not an injustice has occurred. Defining Equity Reaching an agreement as to which type of equity should be applied in an EJ analysis is not easy, and all of the options should be weighed. More definitions of equity than can be concisely presented here can be found in the literature. Four types of equity most applicable to trans- portation planning are presented and are referred to here as “oppor- tunity,” “equality,” “market based,” and “basic needs.” FHWA does not provide clear guidance on how to define equity, so the decision is left up to the MPOs. Opportunity Equity of opportunity is most often defined as each person or group having equal access to the planning process and having their opin- ions taken into account in an equal manner. The first step that many MPOs take toward fulfilling the EJ requirements is outreach to the traditionally underserved populations. Outreach can take several forms, including hosting public meetings in protected areas at times of day convenient for working people, ensuring easy access to the meeting by nonautomobile modes of travel, and providing translators for people who are not fluent in English. Equality Equality—which is typically thought of as a synonym for equity— entails the comparison of performance measures with the goal of 10 Transportation Research Record 2013 providing equal benefits for each population. Within the context of equality, one can consider equal benefits in a future year or an equal change in benefits over time. As the needs and desires of people dif- fer, equity in benefits may be achieved even if the actual benefits received by each group are different. Equality can also be considered in terms of the allocation of funding. Market Based Market-based equity means “you get what you pay for.” Several studies have evaluated how well market-based equity is achieved in transportation financing (11, 12) by comparing how much a group pays in taxes and fees with the resources and benefits that it receives. Taylor (19) also refers to this as market equity; Litman (20), Khisty (21), and Lee (22) refer to this as horizontal equity. Basic Needs Meeting basic needs is a compromise between the first two types of equity. First, the basic needs of each person are met, and then any remaining resources and benefits are distributed according to mar- ket equity. Khisty describes it best as “bread for all, before butter for some” (21). Challenge of Defining Equity Deciding which type of equity to strive for does not, by itself, make the selection of plans or projects among alternatives straightforward. If Plan A offers each of two groups $10 in benefits and Plan B offers the first group $10 and the second group $15, should Plan A be cho- sen on the grounds of equity? Khisty uses a small network to demon- strate how the optimal network improvements differ depending on the type of equity considered (21). The guidance from FHWA on the distribution of funding and its impacts is conflicting. A memorandum issued in January 2000 states that one of the three basic principles of EJ is to “assure low-income and minority groups receive proportionate share of benefits” (23). However, the current FHWA policy, as stated on its website (24), is that beyond the requirement to mitigate disparate impacts, “there is no presumed distribution of resources to sustain compliance with the environmental justice provisions.” Applications of Equity Equity determinations are threefold, examining first the equity in public participation, then the equity in funding, and lastly the equity in impacts. Because the focus of this paper is on technical methods, this section looks primarily at equity in funding and equity in impacts. Giving each population group equal access to the planning pro- cess is extremely important; however, unlike funding and impacts, it is not easily measured by quantitative tools. First, it should be noted that equitable funding does not imply equitable impacts. For example, Group A and Group B could be allocated equal funds, but if Group A decides to use its funds to run a highway through the center of Group B’s community, the resulting impacts will likely be inequitable. The distribution of impacts and funding into the future is difficult to measure because MTPs cannot, because of their long time frame, specify projects in great detail. Much of the money allocated in MTPs goes toward programs that act as funding mechanisms for projects that will be specified at a later date. Some entries in the MTP, such as capacity improvements on a corridor, may contain more detail than other entries, such as a program for funding intelligent transporta- tion systems. Until the projects are selected, there is no accurate way of evaluating the impact that will be felt by each population. Any calculation of program benefits that occurs before the projects are selected will be a rough regional estimate and will be unsuited for a group-level analysis. It is similarly difficult to determine years in advance the distribution of funding among population groups, as it is not specified as such in the plan. Although future funding can be estimated, the exact amount of money available for a particular MTP is also not known with cer- tainty. Revenue from fuel taxes depends on vehicle usage and effi- ciency, and political pressures exist to keep them from rising with inflation. Toll roads may bring in another source of revenue, albeit an uncertain source, as their popularity increases. Private investment in toll roads is an increasingly enticing option for regions in need of upfront money for new projects. Money available for transit depends not only on fares but also on the political climate and public senti- ment. Despite all the funding uncertainty, however, if the planned funding is distributed equitably and the removed or additional fund- ing is removed or added equitably, then the final funding distribution should be equitable. Static Versus Changing Time Frames Perhaps the most controversial aspect of impact evaluation is the time frame considered. Impacts can be assessed in the future year or through the change in impacts from the base year to the future year. At the core of this debate is whether or not EJ should redress past injustices. For example, if the MTP improves travel times for Groups A and B by 10 min each, but Group A’s base year travel time is 30 min longer than Group B’s, is the MTP equitable? Most MPOs, by focusing on the change in measures during the planning period, would say “yes,” claiming that as long as their current and future actions affect each group proportionately, they are within the fed- eral guidelines. Although MPOs may be within their legal limits to evaluate impacts in this way, as long as disparities exist in trans- portation benefits and costs, sectors of the population will continue to believe that the system is not just. Equating future-year perfor- mance measures, however, has its problems, too. One issue with using future-year travel times as a performance measure is that some populations, particularly those with higher incomes, may choose a longer commute in return for other benefits, such as a larger house or better schools. It is unreasonable to try to equate such a popula- tion’s long commute time with the commute time of a lower-income population that lives in close proximity to its destinations. Scope of Analysis As stated above, the purpose of considering EJ in the MTP is to en- sure that no group is disproportionately adversely affected. Before an MPO can determine whether or not the plan is equitable, a deci- sion must be made as to whether each performance measure is going to be looked at individually or whether a holistic view will be taken in the analysis. Most practitioners and researchers would argue that the point of analyzing EJ in the MTP is so that the system can be evaluated as a whole; the total benefits, costs, and funding should be compared across groups. Despite this apparent consensus, it is not uncommon for an EJ analysis to present many types of perfor- mance measures without concluding whether or not a group is dis- proportionately adversely affected. This issue is more one of impact equity than funding equity, as combining monetary units is simpler and requires fewer value judgments than combining various impact measures. The difficulty in creating a system-level EJ determination is in how to combine the individual performance measure results. A survey of the population could tell the analyst which performance measures are the most important and allow the creation of a generalized utility term. One could make the problem even more difficult by allowing each sector of the population to have a different set of preferences. If each group is assumed to have the same transportation needs, then the evaluation of disparate impacts within programs or single perfor- mance measures is appropriate. If the needs of each group are dif- ferent, however, a system-level analysis is the only way to determine EJ results. To find out the needs of the EJ populations, some MPOs have formed task forces composed of representatives from each group. Other MPOs, fearing that an EJ task force will slow the plan- ning process without being truly representative of the traditionally underserved groups, have increased their public outreach efforts. Once the needs of each group are defined, the trick is to evaluate equity in terms of how well each group’s needs are met. If Group A is primarily concerned with pedestrian access to destinations and Group B cares about automobile commute times, an equity analysis would measure how well Group A’s need for better sidewalk con- nectivity is being met compared with how well Group B’s desire for increased freeway capacity is being fulfilled. This example also illus- trates a case in which impact equity will lead to funding inequity, because sidewalk connectivity is cheaper to provide than roadway capacity. Although a system-level equity analysis requires more thought and public input than evaluation of program-level or performance-measure disparities, it is much more intuitive and has the added benefit of ensuring that the transportation services pro- vided are actually meeting the needs of the public. Funding Equity at Federal and State Levels This paper focuses on equity related to EJ in long-range planning; however, the topic of equity brings much debate in other areas of transportation. Most notable is the discussion of equity in the distri- bution of federal funds to states. When states argue that they are not getting their fair share of funds, they are usually implying that they are the subjects of market inequity. Currently, the allocation of fed- eral funds from the Highway Trust Fund ensures a pseudo–market equity in which each state receives at least a 90.5% rate of return on the basis of its tax receipt contribution (11). The distribution of funding within states has also caused contro- versy. In recent years the Denver Regional Council of Governments has worked with the State of Colorado to remedy a market inequity in which the Denver metropolitan area was receiving $0.54 in funding for every $1 that it contributed (25). Washington State created a statewide Transportation Improvement Account to funnel gas tax rev- enue to urban areas after it was discovered that Seattle raised 51% of the state’s revenues and received only 39% in return (11). Tennessee, Arkansas, Ohio, and Alabama distribute portions of their transporta- tion funds evenly to each county in the state, regardless of the popu- lation and the need (11). It is argued that this type of geographic equity facilitates sprawl because of the spending of proportionally more money in rural areas. UNIT OF ANALYSIS EJ compliance determinations can be made by use of one of the fol- lowing units of analysis: individual, group, or geographic. The unit of analysis is the basis for the comparison of performance measures. Most equity analyses for applications other than EJ use the individual unit of analysis. For example, Levinson (26) uses the Gini coefficient to measure the equity of ramp metering, and Connors et al. (27) seek toll rates that maximize the Theil entropy index used to measure social welfare. In theory, EJ uses the group unit of analysis and compares the impacts across groups defined by race, ethnicity, and income. Because adequate data at the group level (i.e., trip tables disaggre- gated by group) are rarely available, most EJ analyses are done by the use of geographic units. There are, however, several problems with this approach. A traffic survey zone is defined as protected or unprotected on the basis of its percentage of minority or low-income residents. Such a classification accounts for neither the number of residents in a zone nor the size of the zone. This means that Zone A is protected if it has only one resident and this person’s income is below the poverty line, but an adjacent Zone B with 10 low-income residents and 90 high-income residents will be unprotected if the threshold for classifying a zone as “low-income protected” is greater than 10%. This arbitrary dis- tinction could be interpreted to mean that the one person in Zone A is somehow valued more than the 10 low-income residents in Zone B. If the zonal boundaries change, perhaps neither zone would be pro- tected. Also, the classification of a zone as protected or unprotected may change depending on how the groups are defined. For exam- ple, a racially and ethnically diverse zone may be protected under a “minority” designation but unprotected if separate designations are used for each racial and ethnic class. Use of the geographic unit as a proxy for the group unit does not work well for groups that do not congregate spatially. Although mem- bers of some minority groups may tend to reside in geographic prox- imity to one another, members of other minority groups may be more dispersed. This problem is especially evident when groups such as disabled and elderly populations are considered. Each zone may have an approximately equal percentage of members of a spatially dis- tributed group, making determination of protected and unprotected zones arbitrary. CONCLUSION Three challenges faced by EJ analyses in transportation planning are discussed in this paper. Data needs are identified, definitions and applications of equity are offered, and technical issues associated with the unit of analysis are presented. The increased use of household travel survey data, activity-based models, and microsimulation may alleviate some of the data needs. Before starting an EJ analysis, an MPO must decide what type of equity it is trying to achieve and how it will treat the potentially different needs of its population groups. The choice between group and geographic unit must be made carefully, as each has advantages and pitfalls. As transportation planners explore new types of projects and new sources of funding, equity analyses will become more complex. For example, it is becoming more common for metropolitan planning agencies to devote funding to land use improvements with the goal of reducing automobile use or efficiently using the existing transporta- tion network. The impact of land use improvements, such as transit- oriented development, on various sectors of the population has not yet been studied extensively. The equitable distribution of these projects Duthie, Cervenka, and Waller 11 12 Transportation Research Record 2013 across a region does not ensure equitable impacts, as low-income populations may be “priced out” if gentrification occurs. The increasing popularity of toll roads, managed lanes, and com- prehensive development agreements with private developers poses new challenges for equity analyses. The distinction between public and private goods in transportation has always been blurry, as people must purchase the appropriate equipment (i.e., an automobile, bicy- cle, or shoes) to use most modes of travel and the marginal impact of each person on most systems is not constant (20). MPOs, with the assistance of the public and stakeholders, must make difficult decisions on how to meet the transportation needs of their regions without limiting access and benefits for specific groups. REFERENCES 1. Executive Order 12898. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. Federal Register, Vol. 59, 1994, p. 7629 (Section 1-101), 3 C.F.R. §859. Reprinted in 42 U.S.C. §4321. 2. Forkenbrock, D. J., and L. A. Schweitzer. Environmental Justice in Transportation Planning. Journal of the American Planning Association, Vol. 65, 1999, pp. 96–111. 3. Chakraborty, J., L. A. Schweitzer, and D. J. Forkenbrock. Using GIS to Assess the Environmental Justice Consequences of Transportation System Changes. Transactions in GIS, Vol. 3, 1999, pp. 239–258. 4. Bullard, R., G. Johnson, and A. Torres. Highway Robbery: Transporta- tion Racism and New Routes to Equity. South End Press, Cambridge, Mass., 2004. 5. Kain, J. F., and J. R. Meyer. Transportation and Poverty. Public Interest, Vol. 18, 1970, pp. 75–87. 6. Collin, R. W., T. Beatley, and W. Harris. Environmental Racism: A Chal- lenge to Community Development. Journal of Black Studies, Vol. 25, No. 3, 1995, pp. 354–376. 7. Lane, L. B., S. Hoffeld, and D. Griffin. Environmental Justice Evalua- tion: Wilmington Bypass, Wilmington, North Carolina. In Transporta- tion Research Record 1626, TRB, National Research Council, Washington, D.C., 1998, pp. 131–139. 8. Hodge, D. C. Fiscal Equity in Urban Mass Transit Systems: A Geographic Analysis. Annals of the Association of American Geographers, Vol. 78, No. 2, 1988, pp. 288–306. 9. Wachs, M. U.S. Transit Subsidy Policy: In Need of Reform. Science, Vol. 244, 1989, pp. 1545–1549. 10. Pucher, J. Who Benefits from Transit Subsidies? Recent Evidence from Six Metropolitan Areas. Transportation Research, Vol. 17A, No. 1, 1983, pp. 39–50. 11. Puentes, R., and R. Prince. Fueling Transportation Finance: A Primer on the Gas Tax. The Brookings Institution, Washington, D.C., March 2003. 12. Taylor, B. The Geography of Urban Transportation Finance. In The Geog- raphy of Urban Transportation, The Guilford Press, New York, 2004. 13. Shahidullah, M., and S. K. Smith. An Evaluation of Population Projection Errors for Census Tracts. Journal of the American Statistical Association, Vol. 90, 1995, pp. 64–71. 14. Hirschman, C. Race and Ethnic Population Projections: A Critical Eval- uation of Their Content and Meaning. Presented at 13th SUNY—Albany Conference on American Diversity: A Demographic Challenge for the Twenty-First Century, Albany, N.Y., 1994. 15. Smith, S. K., and J. M. Nogle. An Evaluation of Hispanic Population Estimates. Social Science Quarterly, Vol. 85, No. 3, 2004, pp. 731–745. 16. Purvis, C. L. Data and Analysis Methods for Metropolitan-Level Environmental Justice Assessment. In Transportation Research Record: Journal of the Transportation Research Board, No. 1756, TRB, National Research Council, Washington, D.C., 2001, pp. 15–21. 17. Cambridge Systematics, Inc. Technical Methods to Support Analysis of Environmental Justice Issues. Final report for NCHRP Project 8-36(11). TRB, National Research Council, Washington, D.C., 2002. 18. Deka, D. Social and Environmental Justice Issues in Urban Trans- portation. In The Geography of Urban Transportation, Guilford Press, New York, 2004. 19. Taylor, B. The Geography of Urban Transportation Finance. In The Geography of Urban Transportation, Guilford Press, New York, 2004. 20. Litman, T. Evaluating Transportation Equity: Guidance for Incorporating Distributional Impacts on Transportation Planning. Victoria Transport Policy Institute, Victoria, British Columbia, Canada, 2006. 21. Khisty, C. J. Operationalizing Concepts of Equity for Public Project Investments. In Transportation Research Record 1559, TRB, National Research Council, Washington, D.C., 1996, pp. 94–99. 22. Lee, D. B. Making the Concept of Equity Operational. In Transportation Research Record 677, TRB, National Research Council, Washington, D.C., 1978, pp. 48–53. 23. Burbank, C. J., and C. Adams. Status of Environmental Justice Activities. Memorandum to FHWA Division Administrators and FTA Regional Administrators, Jan. 19, 2000. 24. The Facts—Questions and Answers on Environmental Justice. FHWA. www.fhwa.dot.gov/environment/ejustice/facts/index.htm#QA. Last modified Jan. 30, 2002. Accessed July 27, 2007. 25. 2003 Annual Report. Denver Regional Council of Governments, Den- ver, Colo., 2003. www.drcog.org/index.cfm?page=2003AnnualReport. Accessed July 30, 2006. 26. Levinson, D. Identifying Winners and Losers in Transportation. In Transportation Research Record: Journal of the Transportation Research Board, No. 1812, Transportation Research Board of the National Academies, Washington, D.C., 2002, pp. 179–185. 27. Connors, R., A. Sumalee, and D. Watling. Equitable Network Design. Journal of the Eastern Asia Society for Transportation Studies, Vol. 6, 2005, pp. 1382–1397. The Environmental Justice in Transportation Committee sponsored publication of this paper. 
work_dmkrxvsmj5cwji2jmapujqupzu	----	LAW WP 03_2010 DEPARTMENT OF LAW EUI Working Papers LAW 2010/03 DEPARTMENT OF LAW CONSTITUTIONAL JUSTICE AND THE PERENNIAL TASK OF ‘CONSTITUTIONALIZING’ LAW AND SOCIETY THROUGH ‘PARTICIPATORY JUSTICE’ Ernst-Ulrich Petersmann EUROPEAN UNIVERSITY INSTITUTE, FLORENCE DEPARTMENT OF LAW Constitutional Justice and the Perennial Task of ‘Constitutionalizing’ Law and Society through ‘Participatory Justice’ ERNST-ULRICH PETERSMANN EUI Working Paper LAW 2010/03 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © 2010 Ernst-Ulrich Petersmann Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Author contact details Prof. Dr. Ernst-Ulrich Petersmann Professor of International and European Law European University Institute, Florence, Italy. Email: Ulrich.Petersmann@EUI.eu This paper is a contribution to the forthcoming conference book edited by H.Micklitz, The Many Concepts of Social Justice in European Private Law (2010). Abstract This contribution argues that concepts of social justice in European and international private law must remain consistent with the principles of justice underlying European and international public law. The contribution begins with a brief explanation of the diversity of conceptions of constitutional justice and of their legal impact on ever more fields of European public and private law (1). After clarifying the constitutional terminology used in this contribution (2), Rawlsian principles of justice for national and international law (3) are distinguished from multilevel human rights as principles of justice (4), multilevel judicial protection of constitutional rights and rule of law by ‘courts of justice’ (5), and the diverse forms of democratic and private ‘participatory justice’ for transforming legal and social relationships (6). The constitutional dimensions of the 2007 Lisbon Treaty (as discussed in section 7) confirm that the ‘many concepts of social justice in European private law’ - the focus of this conference book - must be construed and developed with due regard to the diverse dimensions of ‘constitutional justice’ in European and international public law. Keywords constitutional law; constitutionalization; distributive justice; ECHR; ECJ; economic law; EU law; human rights; justice; Lisbon Treaty; multilevel constitutionalism; participatory justice; principles of justice; private law; Rawlsian principles of justice; social justice; theories of justice 1 1. Diverse Conceptions of ‘Constitutional Justice’ for Justifying National and International Law The EU Charter of Fundamental Rights, UN human rights instruments and many national constitutions (like Article 1 of the German Basic Law of 1949) proceed from respect for human dignity as source of inalienable human rights that must be protected by rule of law and democratic governance. This modern constitutional foundation of national and international legal systems can be interpreted in conformity with Immanuel Kant’s moral theory of human rights: Respect for the moral, rational and reasonable autonomy (dignity) of human beings justifies individual rights to equal external freedoms and corresponding moral duties to protect equal freedoms in all human interactions at national, transnational and international levels through multilevel constitutional guarantees.1 As ‘(e)ach person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override’, justice is – as famously proclaimed by J.Rawls – ‘the first virtue of social institutions, as truth is of systems of thought’.2 The term ‘constitutional justice’ can be used broadly in this Rawlsian sense as referring to constitutional ‘principles of justice’ and institutions (like ‘courts of justice’) for the moral and legal assessment of post-constitutional legislation, administration, adjudication and private conduct structuring social relations among free and equal citizens. The diverse procedural, conventional, egalitarian, redistributive, corrective, commutative and social principles of justice can be conceived as sub-categories within this broader concept of ‘constitutional justice.’ The moral assessment of individual and collective actions within the basic structure of rules is the domain of ethics and justice as a virtue of personal conduct. Principles of constitutional justice for designing and improving a just national and international order remain dependent on moral analysis of such social conduct (e.g. the individual responsibility of citizens to participate in designing and maintaining their society’s institutional order) and of the ‘circumstances of justice’ (e.g. the rational egoism and limited reasonableness of individuals constrained by scarcity of resources in their pursuit of a good life) that make just rules and institutions necessary for a stable social order protecting peaceful cooperation among free and equal citizens with often diverse conceptions for a good life and for social justice. The main proposition of this contribution is that principles of ‘constitutional justice’ are of fundamental importance for the legitimacy and stability of social order and may also influence judicial interpretation and legislative harmonization of private law. Sections 3 to 6 briefly summarize four different, yet complementary conceptions of ‘constitutional justice’: Justice as constitutional fairness (3); justice as multilevel constitutional guarantees of human rights and protection of basic human needs (4); constitutional justice as multilevel judicial protection of individual rights and ‘rule of law’ in conformity with ‘principles of justice’ in relations among individuals, among individuals and governments, as well as among states (5); as well as democratic and private forms of ‘participatory justice’ for agreed transformations of social relations (6). Human rights and constitutional law make ‘constitutionalizing’ law and social cooperation across Europe a perennial task of democratic lawmakers, governments, ‘courts of justice’ and of civil society. The judgment by the German Constitutional Court in the famous Lüth case (concerning a private boycott against a film produced by a former Nazi film director) of 1958 – in which the Court inferred from Article 1(3) of the German Basic Law that fundamental constitutional rights (such as the general personality right and freedom of expression protected by Articles 2 and 5 of the Basic Law), apart from granting individual rights, also prescribe objective constitutional values that apply to the whole legal order and must be taken into 1 On the diverse interpretations of Kant’s moral, historical and political conceptions of natural rights see, e.g.: G.Beck, Immanuel Kant’s Theory of Rights, Ratio Juris 19 (2006), 371-401. 2 J.Rawls (rev. edition 1999), at 3. Ernst-Ulrich Petersmann 2 account in judicial interpretation of general private law clauses3 - illustrates the potential relevance of constitutional law for the interpretation and judicial protection of private law, as recognized also in the case-law of the European Court of Justice (e.g. the 2007 ECJ judgments in the Laval and Viking cases) and in the Preamble to the EU Charter of Fundamental Rights of the European Union: ‘Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.’4 The relevance of European constitutional law for influencing, justifying or limiting harmonization and ‘constitutionalization’ of private law in Europe remains, however, contested. As European constitutional law is committed to ‘respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organization of their public authorities at national, regional and local levels’ (Preamble to the EU Charter of Fundamental Rights), the constitutional principles of EU law may also be invoked for justifying the prevailing diversity of national private law systems in EU member states. 2. Defining ‘Constitutions’, ‘Constitutionalism’ and ‘Constitutionalization’ The terms ‘constitution’, constitutionalism’ and ‘constitutionalization’ are used in this contribution in the following ways:  Constitution refers to a coherent set of long-term principles and rules of a higher legal rank constituting the basic order of a political community (e.g. in a state), or of a functionally limited community (e.g. based on an international ‘treaty constitution’ for the collective supply of international public goods), with legislative, administrative and dispute settlement functions for the maintenance of rule of law for the benefit of citizens. Many national rules (e.g. ‘basic laws’, charters of human rights) and international ‘treaty constitutions’ can serve ‘constitutional functions’ for protecting equal rights, rule of law and transparent self-governance of citizens in public and private law relations even if the respective rules are not formally designated as ‘constitutional.’  Constitutionalism refers to the political method of using constitutional principles, rules and institutions (such as constitutional conventions elaborating constitutional rules) for the collective supply of national and international public goods that benefit all citizens concerned. Multilevel constitutionalism uses constitutional principles, rules and institutions at national and international levels of governance (e.g. legal organizations constituting legislative, executive and judicial powers protecting rule of law among citizens) for the collective supply of international public goods.  Constitutionalization refers to legal methods aimed at strengthening constitutional principles, rules and institutions (like independent judicial protection of constitutional rights and ‘constitutional justice’) in the diverse forms of national and international rule-making, rule-administration and rule-enforcement. Due to the independence and impartiality of ‘courts of justice’ (e.g. compared with majoritarian political institutions) and their judicial ‘administration of justice’ on the basis of ‘due process of law’, judicial settlement – at national and international levels - of disputes over the interpretation and application of rules, and the resulting clarification and continuous adaptation of legal systems to the needs of citizens, offer a distinct mode of ‘multilevel judicial governance’ and principle-oriented ‘constitutional restraint’ on political rule-making and policy-making. As many international disputes are, directly or indirectly (e.g. by means of ‘diplomatic protection’ of individual rights by the home state), initiated at the request of citizens in order to defend their 3 BVerfGE 7, 198 (15 January 1958); cf. H.Rösler, Harmonizing the German Civil Code of the 19th Century with a Modern Constitution – The Lüth Revolution 50 years ago in Comparative Perspective, in: Tulane European and Civil Law Forum 23 (2008), 1 ff. 4 Cf. O.J. EU C 306 of 17 December 2007 and: The Lisbon Treaty. The Readable Version (Foundation for EU Democracy 2008), at 199. Constitutional Justice and the Perennial Task of ‘Constitutionalizing’ Law and Society through ‘Participatory Justice’ 3 rights against alleged abuses of private and public power, ‘judicial governance’ complements the diverse modes of self-governance of citizens in constitutional democracies as well as in the multilevel governance of international cooperation among citizens.5 3. How to Interpret the EU Law Commitments to ‘Justice’? Rawlsian ‘Justice as Constitutional Fairness’ in National and International Law-Making All EU member states have adopted national constitutions based on the insight of democratic constitutionalism that a society’s legal and institutional order may be justified, improved and politically supported over time by constitutional agreement on political ‘principles of justice’ of a higher legal rank (e.g. for constituting, designing and limiting rights of citizens, human rights and democratic governance institutions) that must respect and protect the legitimate diversity of moral, religious and political conceptions of citizens and can be freely supported by all reasonable citizens.6 Such an ‘overlapping consensus’ on a limited ‘political conception of justice’ can help justifying, maintaining and adapting a stable social order, endorsed by citizens with competing worldviews, if the principles respect and protect basic human needs and remain compatible with the enduring reality of diverse, and partially conflicting, moral, religious and other worldviews of citizens. Also in European law and integration, a shared conception of ‘principles of political justice’ justifying the ‘basic structure’ of European rules and institutions – as agreed in the 2007 Lisbon Treaty as well as in the EU Charter of Fundamental Rights which, inter alia, codify principles and rules of European constitutional law - can help resolve disputes on how constitutional rules and individual rights are to be developed over time and adapted to changing circumstances. The Treaty on European Union (as amended by the Lisbon Treaty), like the new Treaty on the Functioning of the EU and the EU Charter of Fundamental Rights as integral part of EU law, include numerous provisions referring to ‘justice’ (e.g. Article 2 TEU), for instance regarding the EU’s ‘area of freedom, security and justice’ (e.g. Article 3 TEU, Arts. 67 ff TFEU), the ‘Court of Justice of the EU’ (Arts. 251 ff TFEU) and fundamental rights to justice (Title VI of the EU Charter of Fundamental Rights). Such explicit references of EU law to justice reflect the longstanding European tradition, since ancient Greek law, of conceptualizing law as participation in the idea of justice. Rawls’ Theory of Justice aims at promoting an ‘overlapping consensus’ among citizens on (1) a common moral justification of (2) principles of political justice for (3) the design, and adjustment over time, of the ‘basic structure’ of a stable social order. In accordance with this tripartite objective, Rawls conceived his Theory of Justice as having three tiers: the ‘original position’ on the top level is a contractualist thought experiment necessary for ensuring ‘justice as fairness’ in the social agreement, on the middle level, on two principles of justice7 (with two priority rules) that constitutionally guide and restrain, on the bottom tier, the ‘basic structure’ of rules concretizing and institutionalizing the ‘principles of justice’ so as to sustain a stable order for social cooperation among citizens with fundamental interests in a good life, in a shared public conception of justice, and in successfully pursuing their chosen life plans. As citizens are not only shaped and bound by, but also collectively 5 Cf. Joerges/Petersmann, (2006). See also M.Shapiro/A.Stone Sweet (2004), chapter 4 (describing adjudication as a particular mode of governance, through which the legal structures of a legal community are continuously adapted to the needs and purposes of citizens and governments). 6 On this ‘idea of a well-ordered society’ respecting the ‘fact of reasonable pluralism’ and pursuing only a limited conception of ‘political justice’ see: J.Rawls (1993), at 35 ff. 7 Rawls’ first statement of the two principles reads as follows: ‘First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonable expected to be to everyone’s advantage, and (b) attached to positions and offices open to all’ (Rawls, rev. ed. 1999, at 53). Ernst-Ulrich Petersmann 4 responsible for their social order, the Rawlsian constitutional theory justifies constitutional rules as resulting from justice as fairness, and as being in the rational self-interest of all reasonable citizens affected by the rules. In order to protect the ‘constitutional contract’ from being distorted by differential bargaining power and potential threats favouring certain contracting parties, the reasoning of citizens and balancing of their diverse interests must take place behind a ‘veil of ignorance’ (Rawls) ensuring equal consideration for all citizens. As, in such an ‘original position’, all individual interests are represented fairly and the constitutional principles of justice protect equal access of citizens to the ‘social primary goods’ essential for their individual well-being (e.g. equal basic liberties, rights and opportunities)8, ‘justice as fairness’ (Rawls) suggests that also the principles of justice and basic rules and institutions justified by such a ‘constitutional contract’ are to be accepted as fair and just by all individuals living under this social order. European constitutional law reflects Rawlsian principles of justice and of procedural fairness in diverse, albeit imperfect ways. For instance, similar to the features of Rawls’ ‘original position’ for negotiating national and international principles of justice (such as the ‘veil of ignorance’, the requirement of publicity and unanimity, the negotiation of international principles of justice by representatives of national peoples rather than by individuals), the elaboration of the Lisbon Treaty and of the EU Charter of Fundamental Rights (as entered into force on 1 December 2009) by intergovernmental negotiations and ‘European Conventions’ (which elaborated the EU Charter of Fundamental Rights adopted on 8 December 2000 as well as the 2003 Draft Constitution for Europe9), and the ratification of the Lisbon Treaty by national parliaments, the European Parliament and by popular referenda, offered uniquely comprehensive procedures for taking into account interests of all groups of European societies and of their democratically elected representatives. EU law includes much broader and more detailed, constitutional as well as judicial guarantees of transnational liberty rights, equality rights, solidarity rights, citizen rights and rights of ‘access to justice’ (e.g. in terms of national and European judicial remedies) than any national constitution of any of the 192 UN member states. In spite of the economic origins of European law (e.g. in the European Atomic, Coal and Steel as well as Economic Communities), justice has become recognized – in line with the Rawlsian theory of justice – as being prior to utilitarian promotion of economic welfare through market integration and sectoral policy integration. Also the controversial, eight Rawlsian principles for an international ‘law of peoples’10 – respect for the freedom and independence of people, pacta sund servanda, equality of people, non-intervention, the right of self-defense, respect for human rights, for the laws of war and international development assistance – are all reflected in corresponding EU law principles. Likewise, the Rawlsian explanation of the causes of economic welfare in terms of domestic legal and political culture11 seems to be confirmed by the relative welfare in each EU member state, just as Rawls’ support for the longstanding ‘democratic peace argument’ (i.e. the explanation by philosophers like Montesquieu, Kant and A.Smith that voluntary international trade contributes to peaceful cooperation across frontiers among democracies)12 appears to be confirmed by the ‘democratic peace’ among all 27 EU member states. 8 Cf. Rawls (rev. ed. 1999), at 52 ff, 78 ff; on the lexical priority of basic liberties (which may be reduced only for the sake of basic liberties but not for the sake of any other social primary goods), see 36 ff. 9 Cf. J.M.Beneyto, From Nice to the Constitutional Treaty. Eight Theses on the (Future) Constitutionalisation of Europe, in: Griller/J.Ziller (2008), at 1-20. 10 J.Rawls (1999), at 36-37. 11 Rawls (1999), at 108 ff. 12 Cf. Rawls (1999), at 51-54. Constitutional Justice and the Perennial Task of ‘Constitutionalizing’ Law and Society through ‘Participatory Justice’ 5 4. Justice as Multilevel Constitutional Guarantees of Human Rights The multilevel, constitutional protection of human rights through national laws, European law and international human rights conventions in all EU member states reflects Kant’s theory of justice based on multilevel constitutional guarantees of human rights to maximum equal freedoms. In contrast to the US tradition of prioritizing civil and political liberties over economic and social rights ensuring fulfilment of basic socio-economic needs, Rawls later recognized that ‘the first principle covering the equal basic rights and liberties may easily be preceded by a lexically prior principle requiring that citizens’ basic socio-economic needs be met, at least insofar as their being met is necessary for citizens to understand and to be able fruitfully to exercise those rights and liberties.’ 13 This Rawlsian acknowledgement - that fulfilment of basic needs may be among the ‘equal basic rights and liberties of citizenship’14 – corresponds to the today worldwide recognition, in hundreds of national and international human rights instruments, of ‘inalienable’ and ‘indivisible’ civil, political, economic, social and cultural human rights to be respected and protected by national and international legal systems.15 By explicitly acknowledging (e.g. in the Preambles of the European Convention on Human Rights and of the 1966 UN Covenants on civil, political, economic, social and cultural human rights) ‘the equal and inalienable rights of all members of the human family (as) the foundation of freedom, justice and peace in the world’, human rights are simultaneously recognized as ‘principles of justice’ limiting governance powers and guiding legislation, administration and adjudication. European Community law and the 2007 Treaty of Lisbon provide for comprehensive constitutional rights, human rights and other ‘principles of justice’ for an ‘area of freedom, security and justice without internal frontiers’ (Article 2 TEU), safeguarded by multilevel legal and judicial remedies in national and European courts. The EU Charter of Fundamental Rights emphasizes that ‘the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’ (Preamble). 16 The comprehensive legal guarantees of the EU Charter for the protection of dignity rights, liberty rights, equality rights, solidarity rights, citizen rights and judicial rights, like the Lisbon Treaty’s requirement of EU accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), reflect a dynamic evolution, and slow convergence, of national and international human rights and constitutional rights in Europe limiting multilevel governance and protecting social justice beyond national frontiers. The recognition of a human right to respect for, and protection of, human dignity by national and European courts, notwithstanding its diverse judicial interpretation within particular jurisdictions17, has promoted judicial protection also of basic human needs for a decent life and work in dignity (e.g. offering special protection to weaker parties like 13 Rawls (1993), at 7. Rawls specifies (at 166) that the level of well-being and education required depends on the level of development of the respective society; someone’s basic socio-economic needs are met if she has the requisite means (including education) to take part in the social and political life of the society as a citizen. 14 Cf. Rawls (1993), at 227 ff. 15 E.U.Petersmann, Human Rights, Markets and Economic Welfare: Constitutional Functions of the Emerging UN Human Rights Constitution, in: F.Abbott/C.Breining/T.Cottier (2006), 29-67. 16 Cf. The Lisbon Treaty (note 4), at 198. 17 Cf. C.McCrudden, Human Dignity and Judicial Interpretation of Human Rights, in: 19 EJIL (2008), 655 ff. Ernst-Ulrich Petersmann 6 foreign workers, refugees, migrants and their families inside EC member states).18 The new Article 6 TEU on the legally binding effect of the EU Charter of Fundamental Rights, on EU accession to the ECHR, and on fundamental rights as ‘general principles of the Union’s law’ will further strengthen the multilevel constitutional character of European law and its constitutional safeguards of fundamental rights and ‘principles of justice’ constraining multilevel governance inside the EU.19 5. Justice through Multilevel Judicial Protection of Constitutional Rights and Rule of Law As an alternative to Rawls’ ‘original position’ as the basis for ‘justice as fairness’, the ethical theory of T.Scanlon20 and the theory of justice by B.Barry21 posit participants who are aware of their identities and motivated to seek agreement under conditions of impartiality and terms that nobody could reasonably reject. The constitutional protection of human rights of access to justice (e.g. in the sense of individual access to legal and judicial remedies, cf. Articles 6, 13 ECHR) and of independent courts administering justice impartially, subject to ‘due process of law’, are examples of constitutional justice as multilevel judicial protection of fundamental rights and ‘rule of law’ as constitutional restraints on ‘rule by men’ and their ‘rule by law.’22 The functional interrelationships between law, judges and justice are reflected in legal language from antiquity (e.g. in the common core of the Latin terms jus, judex, justitia) up to modern times (cf. the Anglo-American legal traditions of speaking of courts of justice, and giving judges the title of Mr. Justice, Lord Justice, or Chief Justice). Like the Roman god Janus, justice and judges face two different perspectives: Their ‘conservative function’ is to apply the existing law and protect the existing system of rights so as ‘to render to each person what is his [right].’ Yet, laws tend to be incomplete and subject to change. Hence, impartial justice may require ‘reformative interpretations’ of legal rules in response to changing social conceptions of justice. As explained by R.Dworkin, courts of justice should interpret law in conformity with its rule-of-law objectives and its underlying principles of justice.23 Dworkin’s ‘adjudicative principle of integrity’ requires judges to interpret law as expressing ‘a coherent conception of justice and fairness’: 18 On ‘capabilities approaches’ to the interpretation of human rights (as developed by A.Sen and M.C.Nussbaum) see: M.C.Nussbaum (2006). 19 On protection of citizen rights by means of the EU Charter of Fundamental Rights see: I.Pernice, The Treaty of Lisbon and Fundamental Rights, in: Griller/Ziller (2008), at 235 ff. 20 T.Scanlon (1998). 21 B.M.Barry (1995). 22 On the dialectic developments of constitutional rights and principles of justice restraining the instrumental ‘governance by law’ see already Aristotle, The Politics and the Constitution of Athens (1996), book III, para.16, at 1287 a-b. On ‘rule of men’ as domination, and ‘rule of law’ as non-domination, see: P.Pettit (1997). According to F.A.Hayek (1960), it is ‘because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule’ (at 153). Rule of law differs from ‘rule by law’ and ‘rule by men’ in terms of constitutional safeguards such as judicial enforcement of law vis-à-vis private persons and public authorities and judicial protection of human rights and other principles of justice. Yet, the historical division between common law and equity law in England (where the Court of Chancery provided additional remedies in certain situations if the common law courts failed to do so) illustrates the long-standing claim by theories of justice (e.g. Aristotle, Nicomachean Ethics, 1999, at 1137b-1138a) that equitable and reasonable interpretation and application of the law may require judges to address particular circumstances of the dispute justifying particular interpretations of ‘principles of justice’, ‘rules of reason’ and ‘rules of recognition’ in order to do justice to particular circumstances of disputes. 23 R.Dworkin (2006), at 9-21. Constitutional Justice and the Perennial Task of ‘Constitutionalizing’ Law and Society through ‘Participatory Justice’ 7 ‘Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards.’ 24 The European Court of Justice, for example, protects the fundamental rights and human rights of 500 million EU citizens not only vis-à-vis restrictions by EU institutions and by member states, but also against abuses of power in the ‘horizontal relations’ among citizens (e.g. in labour markets and consumer markets).25 The ever more comprehensive jurisdictions and judicial remedies inside constitutional democracies and in European courts confirm the Kantian postulate that ‘perpetual peace’ – both inside nations as well as across nations - requires constitutional rights and judicial protection of ‘rule of law’ in all social interactions of citizens, i.e. among individuals, among individuals and governments, as well as among states.26 The development of the customary international law rules for the protection of aliens, which require states to provide decent justice to foreigners and ‘to create and maintain a system of justice which ensures that unfairness to foreigners either does not happen, or is corrected’27, into human rights of access to justice28 illustrates the progressive transformation of state-centred into citizen-oriented rules also in international law. The ever larger number of international treaties, notably in the field of international economic and environmental law, providing for individual rights of access to courts confronts judges with a ‘constitutional dilemma’:  On the one side, citizens increasingly invoke specific treaty rules (e.g. relating to human rights, labour rights, intellectual property rights, investor rights, trading rights, fishing rights, protection of the environment) in national and international courts.  On the other side, most intergovernmental treaties do not offer effective individual legal and judicial remedies29; hence, national, European and international judges are increasingly confronted with legal claims that intergovernmental treaty rules on the protection of individual rights - e.g. in UN human rights conventions, conventions on intellectual property rights adopted in the context of the of the World Intellectual Property Organization, in conventions on labour and social rights adopted in the context of the International Labour Organization, rules of the World Trade Organization, regional trade agreements on individual freedoms of trade and in investment treaties protecting investor rights - should be legally protected by judges as justifying not only rights of governments, but also individual rights and legal remedies against arbitrary violations by governments of their international treaty obligations to the detriment of domestic citizens. 24 R.Dworkin (1986), at 225, 243. 25 Cf. B. De Witte, Balancing of Economic Law and Human Rights by the European Court of Justice, in: Dupuy/Francioni/Petersmann (2009), 197-207. 26 Cf. I.Kant, Perpetual Peace, in: Kant Political Writings (1991), at 98 f. 27 J.Paulsson (2006), at 7, 36. 28 Cf. F.Francioni (2007). 29 Cf. J.Dugard, First Report on Diplomatic Protection (International Law Commission UN Doc. A/CN.4/506, 2000), para. 25: ‘To suggest that universal human rights conventions, particularly the International Covenant on Civil and Political Rights, provide individuals with effective remedies for the protection of their human rights is to engage in a fantasy which, unlike fiction, has no place in legal reasoning. The sad truth is that only a handful of individuals, in the limited number of States that accept the right to individual petition to the monitoring bodies of these conventions, have obtained or will obtain satisfactory remedies from these conventions.’ Ernst-Ulrich Petersmann 8 According to Rawls, ‘in a constitutional regime with judicial review, public reason is the reason of its supreme court’; it is of constitutional importance for the ‘overlapping, constitutional consensus’ necessary for a stable and just society among free, equal and rational citizens who tend to be deeply divided by conflicting moral, religious and philosophical doctrines.30 Also in international law, the UN Charter (Article 1) and the Vienna Convention on the Law of Treaties (VCLT) recall the general obligation under international law ‘that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law’, including ‘universal respect for, and observance of, human rights and fundamental freedoms for all’ (VCLT, Preamble). The ECJ, the European Court of Human Rights (ECtHR) and the European Free Trade Area (EFTA) Court successfully transformed the intergovernmental European Community (EC) treaties and the ECHR into constitutional orders founded on respect for human rights.31 Their ‘judicial constitutionalization’ of intergovernmental treaty regimes was accepted by citizens, national courts, parliaments and governments because the judicial ‘European public reason’ protected more effectively individual rights and European ‘public goods’ (like the EC’s common market). The ‘Solange method’ of cooperation among European courts ‘as long as’ constitutional rights are adequately protected, reflects an ‘overlapping constitutional consensus’ on the need for ‘constitutional justice’ and judicial cooperation (comity) in the multilevel judicial protection of rule of law in European integration. 6. Progressive ‘Constitutionalization’ of Legal and Social Relationships through Participatory Justice with Due Regard for ‘Reasonable Disagreement’ The legitimate diversity of national democratic constitutions illustrates that the transformation of ‘principles of justice’ into constitutional, legislative, administrative and judicial rules and institutions may legitimately vary among constitutional democracies according to their democratic preferences and historical experiences. The diversity of national and international human rights instruments and related constitutional guarantees likewise confirms that the two Rawlsian principles of justice – maximum equal liberties and a ‘difference principle’ protecting the least advantaged in societies – can be specified by very diverse civil, political, economic, social and cultural liberty rights and corresponding governance obligations depending, inter alia, on the respective constitutional traditions, democratic preferences and economic resources of the people concerned. For example, while multilevel cooperation among national and international courts in Europe in their clarification and judicial protection of international guarantees of freedom (e.g. in the EC Treaty, the EEA Agreement, the ECHR) have promoted a progressive ‘constitutionalization’ of ‘international law among sovereign states’ for the benefit of constitutional rights of European citizens, judicial cooperation among international and national courts outside Europe protecting individual rights remains limited to a few areas such as international criminal law (where national and international criminal courts increasingly cooperate in protecting victims’ rights), international investment law (where national courts recognize and enforce transnational investor-state arbitral awards), regional economic and human rights law (e.g. in a few regional human rights courts and regional free trade areas with regional economic courts as in the Andean Common Market and MERCOSUR ). Participation and legal protection of citizens are the legitimizing factors in the elaboration of Rawlsian principles of justice, in judicial protection of human rights as well as in democratic legislation transforming general principles of justice and human rights into specific rules and institutions for peaceful cooperation among citizens. The pervasive reality of conflicts of interests among individuals competing for scarce resources, like the often unconscious conflicts inside the human mind (e.g. among rational egoism, limited reasonableness, emotional passions and unconscious instincts of 30 J.Rawls (1993), at 231 ff. 31 Cf. E.U.Petersmann, Human Rights, International Economic Law and ‘Constitutional Justice’, EJIL 19 (2008) 769-798. Constitutional Justice and the Perennial Task of ‘Constitutionalizing’ Law and Society through ‘Participatory Justice’ 9 individuals), require dispute prevention and dispute resolution through ‘pre-commitment’ to constitutional rules and dispute resolution procedures not only in ‘political markets’ (e.g. so as to protect citizens against abuses of government powers), but also in private markets (e.g. so as to protect employees in labour markets and consumers in economic markets against abuses of private economic power and ‘information asymmetries’). Political markets, labour markets and economic markets for private goods and services reveal similar ‘market failures’ that must be constitutionally restrained by constitutional rules of a higher legal rank (e.g. for protecting equal freedoms and non-discriminatory competition) as well as by ‘participatory justice institutions’ (e.g. for parliamentary and judicial protection of citizen-driven ‘deliberative democracy’, consumer-driven market competition and ‘freedom of commercial speech’). The increasing calls for ‘transforming social relationships through participatory justice’ - beyond ‘deliberative democracy’, participatory democratic self-governance and adversarial judicial procedures - reflect the perennial task of progressively ‘constitutionalizing’ public and private law systems in order to prevent and resolve social conflicts (e.g. by promoting public and private ‘mediation’ procedures reflecting constitutional values like rule of law, dialogue among the disputants and voluntarily agreed dispute settlements aimed at ‘consensus-based justice’).32 Conflicts of interests are not only enduring features of all societies; rules and procedures for peaceful conflict resolution based on ‘participatory justice’ also offer opportunities for continuously reviewing, adapting and developing rules, institutions and ‘justice systems’ in response to citizens calling for ever more comprehensive guarantees of ‘social justice’. 7. The Future of European Constitutional Law and ‘Social Justice’ Following the rejection (in popular referenda in France and the Netherlands) of the 2004 Treaty establishing a Constitution for Europe, the 2007 Lisbon Treaty on the European Union was presented as an international treaty without ‘constitutional character’. Yet, – both in terms of a formal, positivist concept of constitution (e.g. as referring to the long-term, basic rules of a higher legal rank constituting the governance system for a political community) as well as in terms of a substantive concept of democratic constitutionalism (e.g. as referring to constitutional citizen rights and basic rules constituting legislative, executive and judicial self-governance) – the Lisbon Treaty codifies and further develops European constitutional rules as they had been acknowledged already in the 2001 Nice Treaty on the EU (e.g. Article 6) and are now being further developed in the TEU (e.g. its Title I) as amended by the Lisbon Treaty. The diverse constitutional structures of the ECHR, of EU law and of EEA law (as interpreted by its EFTA Court) illustrate the legitimately diverse forms of multilevel ‘constitutional pluralism’ in European integration. As long as the European courts continue their successful cooperation with national courts, their multilevel judicial interpretation and protection of the ECHR, of the EU Treaty and EEA agreement as ‘constitutional instruments’ will continue to constitutionally limit private and public legal practices; it seems inconceivable today that the EU courts, the EFTA Court and the European Court of Human Rights (ECtHR) could ever abandon their constitutional commitment to judicial protection of fundamental rights protected by EU law, EEA law and the ECHR.33 The case-law of the European courts on ‘horizontal protection’ of fundamental rights also in private relations among citizens in economic and labour markets, like the explicit recognition (e.g. in the Preamble to the EU Charter of Fundamental Rights) that European fundamental rights ‘entail responsibilities and duties with regard to other persons, to the human community and to future generations’, confirm that the ‘principles of justice’ and constitutional restraints of European law limit also private law systems and private legal practices (e.g. in commercial, corporate and competition law, consumer law, labour law, contract law, family law) across EU member states. Without such 32 Cf. Transforming Relationships through Participatory Justice (Law Commission of Canada: Ottawa 2003). 33 On the perennial ‘constitutional problems’ of European integration law see: E.U.Petersmann, The Reform Treaty and the Constitutional Finality of European Integration, in: Griller/Ziller (2009), at 337-358. Ernst-Ulrich Petersmann 10 safeguards of ‘constitutional justice’ and of ‘participatory justice’, the power asymmetries, information asymmetries and other ‘market failures’ in political markets, economic markets and labour markets would risk undermining the European ideals of citizen-driven democratic self- governance, consumer-driven market competition and collective bargaining among employers and employees. The reality of moral, religious, political and legal pluralism, and the need for constitutional legitimacy of European governance on behalf of 500 million European citizens living in 27 nation states, is even more obvious in transnational European integration than inside nation states; both require respect for reasonable, political disagreement and for the social reality of ‘pluralism’ (as explicitly recognized in Article 2 TEU), which often reflects moral disagreement and legitimately diverse social and legal traditions. The Rawlsian theory of justice emphasizes that - in view of the ‘fact of reasonable pluralism’ and ‘the fact that in a democratic regime political power is regarded as the power of free and equal citizens as a collective body’- the democratic exercise of coercive power over one another is democratically legitimate only when ‘political power … is exercised in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason.’34 The judicial activism of the European Court of Justice in protecting non-discrimination and social integration of EU citizens exercising their EU market freedoms and claiming access to universal services, like the ECJ judgments (e.g. in the Viking and Laval cases) about the need for reconciling (‘balancing’) the EC ‘market freedoms’ with the rights of trade unions, illustrate that - in disputes over social justice - the exercise of judicial power and judicial reasoning must be justified with due regard to agreed ‘principles of justice’, such as the Lisbon Treaty’s new commitment to a ‘highly competitive social market economy’ (Article 3 TEU) or the ‘dignity rights’ protected in Title I of the EU Charter of Fundamental Rights (which might justify interpreting ‘common market freedoms’ and the ‘liberty rights’ protected in Title II of the Charter in terms of autonomy-based ‘positive liberties’).35 The Lisbon Treaty’s emphasis on, inter alia, the constitutional principles of respect for societal ‘pluralism’ (Article 2 TEU), limited conferral of powers, subsidiarity and proportionality (cf. Article 5 TEU) suggests that EU law may continue to have only a limited impact on private law systems (e.g. for promoting ‘contractual justice’ by means of legal protection of weak parties in contract law, consumer law, labour law and tenancy law). Even if EC legal acts (e.g. EC Directives on harmonization of certain areas of private law like corporate social responsibility) and court decisions are legally binding on their respective addressees, they may be questioned by citizens and political parties if their constitutional legitimacy is not justified in terms of protecting essential interests of EU citizens. Hence, in their judicial interpretation of EU rules and their systemic interrelationships (e.g. between European and national competition laws, labour laws and private law rules), judges must respect legitimately diverse traditions of interpreting and applying ‘principles of justice’ in domestic laws (such as conventional justice in the sense of rule-following, egalitarian justice in the sense of treating like cases alike, distributive justice in conformity with basic needs justifying limited redistribution of income, retributive justice in the sense of just compensation or punishment, reciprocal justice in the sense of mutual advantage, procedural justice and individual justice as protected by human rights). In ‘vertical disputes’ among citizens and governments (such as investment disputes in national courts and investor-state arbitration inside the EU), the legitimate functions of courts, their judicial ‘balancing’ of relevant ‘principles of justice’, and the limits imposed by constitutional rights and competing jurisdictions may differ from those in ‘horizontal disputes’ among governments (e.g. in the ECJ) or in private commercial arbitration. Just as European integration law protects European citizens against harmful border discrimination by national governments, so can legal EU 34 J.Rawls (2001), at 41. 35 On competing constitutional conceptions of liberty rights see, e.g.: K.Möller, Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of Constitutional Rights, in: Oxford Journal of Legal Studies 29 (2009), 757-786. Constitutional Justice and the Perennial Task of ‘Constitutionalizing’ Law and Society through ‘Participatory Justice’ 11 harmonization of national social and private rules help overcome harmful biases in national social and private law systems (e.g. exclusionary trade union practices preventing competition by posted workers from new EU member states as in the Laval and Viking disputes in the ECJ). Whether, to what extent and in which areas European integration requires, or justifies, harmonization of private law systems remains contested and needs to be legally and judicially clarified with due regard to the ‘principles of justice’ and limited scope of European constitutional law. Ernst-Ulrich Petersmann 12 BIBLIOGRAPHY F.Abbott/C.Breining/T.Cottier (eds), International Trade and Human Rights (OUP: Oxford 2006) Aristotle, The Politics and the Constitution of Athens (ed. by S.Everson, CUP:Cambridge, 1996) Aristotle, Nicomachean Ethics, ed. by M.Ostwald, Prentice Hall: Upper Sadle River, 1999 B.M.Barry, Justice as Impartiality (Vol. II of A Treatise on Social Justice, Oxford: Clarendon Press, 1995). P.M.Dupuy/F.Francioni/E.U.Petersmann (eds), Human Rights in International Investment Law and Arbitration (OUP: Oxford, 2009) R.Dworkin, Law’s Empire (Harvard University Press: Cambridge Mass., 1986) R.Dworkin, Justice in Robes (Harvard University Press: Cambridge Mass., 2006) C.Joerges/E.U.Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Hart Publishers: Oxford, 2006) F.Francioni (ed), Access to Justice as a Human Right (OUP: Oxford, 2007) S.Griller/J.Ziller (eds), The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty? (Springer Verlag: Vienna, 2008) F.A.Hayek, The Constitution of Liberty (Routledge: London, 1960) Kant Political Writings (ed. by H.Reiss, CUP: Cambridge, 1991) M.C.Nussbaum, Frontiers of Justice (Harvard University Press: Cambridge Mass., 2006) J.Paulsson, Denial of Justice in International Law (OUP: Oxford, 2006) P.Pettit, Republicanism: A Theory of Freedom and Government (1997) M.Shapiro/A.Stone Sweet, On Law, Politics and Judicialization (OUP: Oxford, 2004) J.Rawls, A Theory of Justice (Cambridge: Harvard University Press, rev. edition 1999) J.Rawls, Political Liberalism (Columbia University Press: New York, 1993) J.Rawls, The Law of Peoples (Harvard University Press: Cambridge 1999) J.Rawls, Justice as Fairness: A Restatement (ed. by E.Kelly; Harvard University Press: Cambridge Mass., 2001) T.Scanlon, What We Owe to Each Other (Harvard University Press: Cambridge Mass., 1998). 
work_dnrabiohxzfdplz7f3zdky3kca	----	When Caring Is Just and Justice Is Caring: Justice and Mental Retardation Eva Feder Kittay , “Praise to you, Lord God, king of the universe, who varies the forms of thy creatures.” So begins an ancient Hebrew prayer which is to be recited upon encountering an individual with “deformities.” Wolf Wolfensberger, The Principles of Normalization in Human Services When speaking of a person labeled “profoundly mentally retarded” emphasize “profound.” David Hingsburger, First Contact: Charting Inner Space Interjecting Voice P mong the various human forms alluded to in the Hebrew prayer, mental retardation appears to be one of the most difficult to celebrate.1 It is the disability that other disabled persons do not want attributed to them. It is the dis- ability for which prospective parents are most likely to use selective abortion (Wertz 2000). And it is the disability that prompted one of the most illustrious United States Supreme Court Justices to endorse forced sterilization, because 1. A word about the term mental retard&m. In speaking of mental retardation. some speak of mental disabilities, or cognitive or intellectual disabilities, or developmental disabilities, or being men- tally challenged. 1 reject the last term as condescending. Although only mental retardation captures precisely the population I address, I vary the terms with a sensitivity to their over- or underinclusive- ness. Public Culture 13(3): 557-579 Copyright 0 2001 by Eva Feder Kittay 557 Public Culture I “three generations of imbeciles are enough.“’ The mentally retarded have at times been objects of pity, compassion, or abuse by their caretakers and society at large. But they have rarely been seen as subjects, as citizens, as persons with equal entitlement to fulfillment. Mental retardation comes to the public’s attention in sensational stories that expose appalling forms of abuse. We encountered the horror decades ago in Look magazine’s photo expose “Christmas in Purgatory” and, more recently, in the heavily illustrated article in the New York Times Muguzine showing conditions at Hidalgo in Guadalajara, Mexico, one of many “Global Willowbrooks” (Winerip 2000); or closer to home, in the Wushin@~n Post’s coverage of the unexplained and uninvestigated deaths of mentally retarded people living in the city-funded group homes of the nation’s capital (Vobejda 2000). And we gasp at the inhu- manity of those entrusted with the care of extremely vulnerable people. We won- der: How can this happen? How is it that we allow this to occur? Although we occasionally hear of these extreme cases of abuse, the victimiza- tion of severely intellectually disabled persons is more pervasive than these iso- lated examples suggest. Many individuals with mental retardation, especially when it is severe or profound or compounded by other disabilities, have been unaffected by the important strides made by other people with disabilities. Advo- cates of disability rights have insisted that the independence and productivity that are essential to being considered equal citizens in a liberal society are no less attainable for the disabled than for the nondisabled. They have argued that their impairments are only disabling in an environment that is hostile to their differ- ences and that has been constructed to exclude them. Yet, the impairment of men- tal retardation is not easily addressed by physical changes in the environment. Although a significant number of mentally disabled persons have been moved out of large state institutions into smaller, community-based facilities or independent apartments and are employed in supportive environments, most will need to be financially supported or to subsist on very low salaries. Of all disabled people, the severely mentally retarded have least benefited from the inclusion fought for by the disability community (Ferguson 1994). Perhaps this should not be surprising. The movement for the rights and inclu- sion of people with disabilities has followed a blueprint developed by persons of color, women, and gays and lesbians. All of these attempts by the marginalized to be recognized and fully enfranchised demanded that the practice of liberalism be 2. With this remark, Justice Oliver Wendell Holmes justified upholding the state’s right to deter- mine that Carrie Bell, a “feeble-minded woman” residing in a state institution, should be sterilized (Buck L: Bull, 274 U.S. 208 [1927]). 558 consistent with its tenets of universal equality and freedom. All the formerly When Caring Is Just and excluded have insisted on no longer being silenced, on having their voices heard. Justice Is Caring But for many with severe mental retardation, such a demand for voice appears futile. Even though other movements of inclusion have challenged the liberalism that they nonetheless invoked, the inclusion of people with mental retardation may well be liberalism’s limit case, just as it is a limiting case for the demands of many in the disability community. Liberalism invokes a notion of political partic- ipation in which one makes one’s voice heard. It depends on a conception of the person as independent, rational, and capable of self-sufficiency. And it holds to a conception of society as an association of such independent equals. Yet many with severe retardation cannot ever hope to be equal in these terms. Some, at least, may never be able to be independent or capable of participating in rational deliberation. Those who speak do so in a language not recognized-and even demeaned- by those who speak in the language of the public sphere. Without a claim to cog- nitive parity, even those who can speak are not recognized as authors or agents in their own right. Those who cannot speak must depend on others to speak for them. Those who can speak find that their voice is given no authority. Perhaps there is no more disabling disablement. To be heard, to be recognized, to have her needs and wants reckoned along with those of others, the mentally retarded individual requires an advocate-a role that has voice at its center. It is in the role of an advocate for my daughter, Sesha, that I enter into the field of “disability criticism.” I have wondered not only how and where I fit into this discourse; I have also considered how I interject my daughter into this critical discourse, into any public discourse. To do so, I must first tell the reader about her, for she cannot speak for herself. How do I describe Sesha? In speaking not only about her, but for her, I have already begun by describing her in the negative-as one who cannot speak for herself. Yet this lack is a synecdoche for all that she is unable to do: feed herself, dress herself, toilet herself, walk, talk, read, write, draw, say Mama or Papa. I would have preferred to start by speaking of her capabilities: the hugs and kisses she can give, her boundless enjoyment of the sensuous feel of water, or her abid- ing and profound appreciation of music. When asked about my daughter, I want to tell people that she is a beautiful, loving, joyful young woman. But then I need to tell them what she cannot be, given her profound cognitive limitations, her cerebral palsy, and her seizure disorders. When people ask how old my daughter is I always hesitate, wondering whether to give her chronological age and speak of her as a lovely and intense thirty-year-old woman, or to speak of the indeter- 559 Public Culture minate age that reflects her level of functioning and her total dependence. The positive set of responses is truer to who she is. Her limitations describe the face she shows to those who don’t know her, but they also convey the ways she cannot make her own way in the world. Knowing her capabilities, one gets a glimpse into the richness of her life and the remarkable quality of her very being. Nonetheless, the limitations shape her life and those of her family, so we all must address them if we are to make it possible for her beauty to flourish. Con- versely, only by considering her in the fullness of her joys and capacities can we view her impairments in light of her life, her interests, her happiness-and not as projections of her “able” parents or of an able-biased society. An exclusive focus on her limitations would set her outside liberal definitions of personhood and cit- izenship that are fixated on intellect, independence, and productivity. These val- ues throw into question her entitlement to the resources she needs for her full development and her flourishing. Advocating for the Cared-for by Advocating for the Carer Foremost among her needs is the need for care. If she is to flourish, she needs good caring care-and lots of it. Care is a multifaceted term. It is a labor, an atti- tude, and a virtue. As labor, it is the work of maintaining ourselves and others when we are in a condition of need. It is most noticed in its absence, most needed when it can be least reciprocated. As an attitude, caring denotes a positive, affec- tive bond and investment in another’s well-being. The labor can be done without the appropriate attitude. Yet without the attitude of care, the open responsiveness to another that is so essential to understanding what another requires is not pos- sible. That is, the labor unaccompanied by the attitude of care cannot be good care (see Kittay 1999). Good caring is cultivated as a virtue by some who can provide it for intimates and strangers alike. More frequently it is elicited when we are in an affectionate relationship with another. But even here, consistency of care, maintaining care even when it is difficult and disadvantageous to us, requires the cultivation of the virtue. Care as a virtue is a disposition manifested in caring behavior (the labor and attitude), in which “a shift takes place from the interest in our life situation to the situation of the other, the one in need of care” (Gastmans, Dierckx de Cast- erle, and Schotsmans 1998: 53). Since my daughter requires constant and attentive care, and because such care (the labor) requires devoted and caring caregivers (the attitude), to advocate for my daughter without also advocating for those who are entrusted with her well- 560 being is at once unjust and uncaring toward the caregiver. It also fails to accom- When Caring 1s Just and plish its original aim of assuring a good and fulfilling life for my daughter. This is Justice Is Caring so despite the fact that the interests of my daughter and those of her caregivers (whether me or others) are not always aligned, and that the interests of her paid caregivers are not infrequently at odds with those of her familial caregivers. To give voice to one who cannot speak, whose very agency appears so attenu- ated, means to pay the utmost heed to what 1 have called elsewhere the “depen- dency relation”: the relation between one who gives care and one who is depen- dent upon caregivers for her most basic life functions (“the charge”), a dependency that, while always socially shaped, is grounded in the inevitable circumstances of the human animal (see Kittay 1999).3 As a worker (elsewhere I speak of the “dependency worker”), the caregiver is vulnerable to exploitation. But because of the special demands of caregiving and because of the traditional assignment of this work to women or servants, depen- dency workers are more subject to exploitation than most. When paid, depen- dency work is rarely well paid. When done by family members, it is, as a rule, unpaid. Paid dependency workers are frequently drawn from classes or groups who are themselves relatively powerless within the society at large and who occupy a social status lower than that of their charge. As a result, even though the charge may be totally dependent on the dependency worker for the satisfaction of fundamental needs, the dependency worker may be vulnerable to those whose interests it serves to have the charge cared for, as well as to the actions of her charge. Conversely, given the dependency of the charge, or her physical or mental incapacity, the trust invested in the dependency worker not to abuse her power over the charge is enormous. The more stigmatized the condition that gives rise to the dependency and the more excluded and unvoiced the dependent is, the greater the opportunity and latitude for the dependency worker to violate that trust. It is conceivable that sheer coercion and policing could guarantee that a dependency worker charged with the care of a highly vulnerable person will not violate her trust and abuse her power over her charge. But the vigilance required makes such a means ineffectual in all but the most oppressive social conditions. More commonly, the emotional bond that forms between the caregiver and her charge secures the moral obligation to meet the needs of one who is vulnerable to your actions (Goodin 1985). The caregiver who has cultivated the virtue of care 3. Macintyre (1999) and Nussbaum (2000) tie our dependency to our continuity with other ani- m a l s . 561 Public Culture comes to view the interest of the charge as part of her own well-being. In the absence of some bonding or some attitudinal commitment, the care may be indif- ferent or even disastrously poor. Those who advocate for vulnerable persons must ask what conditions would encourage an attitude of care in the caregiver- all the while respecting the caregiver’s own needs and desires. Because good caregiving is inherently other directed, the agency of the good caregiver is not easily accommodated by the picture of the agent under liberal- ism, the rationally self-interested actor. Because the severely and profoundly mentally retarded are so dependent on the caregiver to exhibit other-directed behavior, the relationship between the two falls outside of conventional under- standings of relationships between equals within liberalism. The advocate for the severely retarded person needs to look beyond liberal- ism, while still respecting the values of autonomy and liberty propounded by lib- eral theory. She must seek conditions that are just to the caregiver as well as con- ducive to good care and justice for the charge. To advocate for caregivers is to insist that significant resources be set aside to pay for the services of caregivers, to provide them with the same benefits as other workers, to invest in training and the building of skills that will enable those who give care to help their charges develop all their capabilities. But why, a skeptic may ask, should we invest such resources (presumably pub- lic resources if they are to benefit all affected individuals) for the sake of a popu- lation that will never be able to reciprocate, whose material contributions will never match the outlay? We can demand such reciprocity from the subject of tra- ditional theories of liberal justice, but it makes little sense in the case of persons whose mental capabilities are very seriously limited. Charity or benevolence may motivate us to contribute to the care of such people, but is there any case to be made for the injustice of doing otherwise? Simply allowing those who cannot care for themselves to go unfed and unattended seems indecent. But do we have any duty to provide for their flourishing? We need therefore to ask what is due to the retarded, why it is due to them, and what is due to those who care for persons as dependent and vulnerable as my daughter and others like her. The Tradition of Personhood William Wordsworth, speaking of his poem “The Idiot Boy,” wrote of the “loathing and disgust” evoked by a person with mental retardation, and remarked that this is the consequence of a “want of comprehensiveness of thinking and feeling,” a “false delicacy” (De Selincort 1935: 295-96). Perhaps there will be a time when 562 we can rid people of the “false delicacy” and broaden the measure of thinking When Caring Is Just and and feeling to embrace a capacious concept of personhood. But it was not so in Justice Is Caring Wordsworth’s time, and it is not so now and here. Beauty may charm and physical prowess may awe, but intellect rules supreme. The intellect not only provides access to power and material goods. From Aris- totle to Rawls, it is by virtue of our intellect, our powers of rational deliberation, that humans acquire a unique moral status as well. For Aristotle, the possession of the deliberative faculty and ability to act from rational deliberation was the sine qua non for citizenship, an ability he attributed only to free men, not women and not slaves. The ascendance of humans’ rational capacities as the defining mark not only of citizenship but of personhood itself is illustrated by John Locke’s definition of a person as “a thinking intelligent being, that has reason and reflec- tion, and can consider itself as itself, the same thinking thing, in different times and places” (1987: 1.27.11). Persons, in turn, become the bearers of rights, the only signers of the social contract, the only actors in our morality plays, the only players to whom the rules of justice pertain, and so, the only ones for whom citi- zenship and justice are defined. Kant understood the dignity of humans to derive from their ability to assume duty through a law they themselves author. The capacity that elevates humans to the status of moral agents, he thought, is the rationality by which we judge if we can universalize maxims we choose for our own actions. Rational agency, he maintained, not our mere species membership, gives us the dignity of moral beings. Because we are capable of autonomy, of rationally determining what our duty is, we are due the respect of an end-in-itself, of an inhabitant of the kingdom of ends. Kant’s is a tradition that has endured; it finds especially influential expression today in the theory of justice advanced by John Rawls. Let us linger for a moment on Rawls, for his is the reigning theory of liberalism. Rawls understands justice to be due to those who enter with others into an association based on fair terms of cooperation. Those who are fully cooperating throughout their lives are the free and equal citizens of the well-ordered society. It is they who partake of both the benefits and burdens of social cooperation. Two moral powers, maintains Rawls, can be attributed to citizens who are both rational in recognizing and pursuing their own conception of the good (the first moral power) and reasonable in rec- ognizing the fairness of others also pursuing their own ends (the second moral power). It is the business of a just society to provide its citizens with the means to express these moral powers, that is, to pursue the good life as they see it and to allow others to pursue the good life as they see it. With Rawls’s theory of justice, 563 Public Culture free and equal agents in a fair procedure deliberate and choose the principles by which “primary goods” (the goods we require whatever our conception of the good is) are distributed through the basic institutions of society (Rawls 1980: 526). These goods presume and are determined by a conception of the person as possessing two moral powers, that is, as being both reasonable and rational. Where in this moral universe-and in a social/political world so repre- sented-is there room for those whose rational, reasonable, and reasoning capac- ities are impaired, perhaps severely? A conception of the primary goods is not tailored to their lives. It is not clear that their moral powers are adequately cap- tured in this picture of moral life, or that this conception of the moral powers is adequate to provide them with the protection, care, and resources they require to flourish (see Kittay 1999). Can moral citizenship be granted to those lacking such powers, powers presumed in the citizen who is “fully functioning throughout a life?’ (Rawls 1980: 546). What moral status does my daughter then have? If she has no place at the table of equal deliberators, of free and equal moral agents, of free and equal citizens, does justice apply to her?4 If traditional theories in the Western moral and political tradition are correct in their exclusion, then we have to wonder: When the heart cries “Injustice” upon encountering pictures of the mentally retarded tied to their beds, where one atten- dant cares for over one hundred entirely dependent residents (as in the “asylum” in Guadalajara), is this merely a misunderstanding of the term justice? When we read Nancy Scheper-Hughes’s (1992) vivid and sympathetic account of the abject lives of sugarcane workers of northeastern Brazil, of the numbed misery of the mothers who allow their weak (and doubtless impaired) infants to “return to Jesus” by failing to feed them, and believe that unjust circumstances compel these mothers to participate in a moral wrong (albeit one for which they are not the prime culprits)-are we merely foisting sentimental middle-class values on those who cannot afford them? And is there any ground for the accusation that the United States-the wealthiest nation in the history of the world-is unjust for not providing appropriate resources to families who lack means to properly care for their developmentally disabled child? Wealthy parents might, of course, choose to lavish care on their “deviant” family members, just as those with resources can lavishly spend on the many things for which there is no public sup- port. Similarly, a family who has resources to care for a child with Down syn- 4. Rawls, in fact, does not seem to think that the individual who is permanently impaired in such a way that he or she cannot fully participate in social cooperation throughout a life is not a citizen. See my discussion of this point in Kittay 1999: 105 n. 178. 564 drome might refuse prenatal testing and selective abortion. But should any fam- When Caring 1s Just and ily expect public support for such a child when an abortion would have been an Justice Is Caring inexpensive way to prevent such a birth‘? Are there any claims from justice to extend public provision for families to lighten the extra demands of raising a child with cognitive deficits so severe that no education or habilitation will turn that child into a future taxpayer? In the above discussion, we began thinking of the individual with intellectual disabilities, but we soon find ourselves including the family of which she is a part and her caregivers in our consideration. Earlier I spoke of caregivers as if they were different from the family and directed us to the vulnerability of the paid caregiver. But all caregivers, familial or paid, become derivatively dependent when they turn their time, attention, and concerns to a dependent other. And the greater the dependency of their charge,‘the greater their derivative dependency. Elsewhere I argue that not only are dependents effectively left out of the social contract, but dependency workers are implicitly excluded as well (Kittay 1999). Even as they advocate for their charge or other dependent kin, their own voice and the needs that arise from their role as caregivers come to be eclipsed. 1 asked above whether assistance to those who are dependent because of their permanent mental incapacity should expect support at the expense of the public. The same question could be asked of those who provide their care-even though the latter are surely capable of the full functioning that Rawls (1972, 1992) speaks of as requisite to membership in the community of equals. We can ask whether parents or kin who assume the role of caregiver should have claims on the larger society to support them in their efforts to provide care. If, for all the effort and care in raising a child with disabilities into adulthood, there is no payback (convention- ally understood) to the society at large, can we still insist that there be a state interest in helping families with the additional burdens of caring for a develop- mentally disabled child? Is there a state interest in assuring families that their vulnerable child will be well cared for when the family is no longer able or will- ing to do so? The Construction of Disability, the ADA, and Mental Retardation The enactment of the 1990 Americans with Disabilities Act (ADA) is an affirma- tion of the citizenship and the justice due to all disabled persons. That act, how- ever, does not try to establish the ground for affirming the personhood or citizen- ship of disabled Americans. It assumes it. Its point is to make discrimination based on disability illegal. Modeled on other antidiscrimination legislation, its 565 Public Culture approach is largely a negative one, stipulating that obstacles not be placed in the way of an individual’s opportunity to participate in the social cooperation consti- tutive of citizenship. As Anita Silvers (1998) argues, in the case of disability, a purely negative right not to be interfered with actually mandates positive action, such as the building of ramps and the modification of toilet facilities. Such positive action is largely com- pensatory, since the physiosocial environment might have been built so as not to exclude persons with differing abilities. Silvers makes the case that this approach supports the social model of disability rather than the medical model. The medical model locates the source of disability in the individual: the individual is defective and needs fixing; the social model locates the source of the disability in the social situation: the social situation requires fixing, not the individual. The supposition, endorsed by Silvers and adopted in some of the language of the ADA itself, is that once the barriers to full participation are removed, the disabled will be able to be as productive, self-sustaining, and independent as the abled. The focus on physical disabilities has given much plausibility to the arguments of the disability community that disadvantage, and the disability that results from a physiological impairment, is itself a consequence of an environment built to accommodate certain capacities but not others. Such an analysis of disability is especially applicable to physical disabilities, but may have some limited applica- bility to persons with a mild retardation as well. As a number of disability theo- rists and advocates have argued, it is only a consequence of our technologically advanced environment that we need to have skills that depend on very developed and trained cognitive capacities, skills beyond the capacities of mildly retarded persons. In an agrarian community, the mental abilities of a mildly retarded per- son may be quite sufficient to allow such an individual to live a reasonably inde- pendent and productive existence-a life that is viewed as normal. Even if this is true of very mildly retarded adults, there is no accommodation that transforms as severe a case of retardation as that of my daughter, Sesha, into a condition that is not profoundly disabling. The cognitive impairments of the severely and pro- foundly retarded are not merely contingently disabling. Unlike many disabilities, hers are not simply social constructions. Someone such as my daughter could not survive, much less thrive, without constant and vigilant attention, without some- one performing for her nearly all the tasks of daily living, as well as providing for her-and her caregiver-the material resources required for her existence and flourishing. We might say, however, that in the case of developmental disabilities, espe- 5 6 6 cially severe ones, though the disability itself is not socially constructed, the view When Caring Is Just and that mental retardation is a “problem” rather than a possible outcome of human Justice Is Caring physiology is. Those who have developmental disabilities require more supports than those without these impairments. However, they also provide different and rich opportunities for relationships and experiencing new ways of seeing the world (see Cushing and Lewis n.d., Bogdan and Taylor 1992, and Hingsburger ! 2000). Constructed only as a problem, Sesha and other developmentally disabled persons appear to have no claim to the aids and supports that they need to live and live well. According to some theories she is not a citizen of this or any coun- try.5 Must she and those who share her disabilities then be consigned to live off the scraps of a gratuitous and uncertain generosity? An Alternative Conception of Personhood In a recent essay, 1 contrast the lives of those shattered by inappropriate institu- tions and social neglect with that of Sesha. I evoke a morning in my kitchen when Sesha, accompanied by her caregiver, is having breakfast, and I sneak in to give her a kiss: Sesha, as always, is delighted to see me. Anxious to give me one of her distinctive kisses she tries to grab my hair to pull me to her mouth. Yet at the same time my kisses tickle her and make her giggle too hard to con- centrate on dropping the jam-covered toast before going after my hair. I negotiate, as best as I can, the sticky toast, the hair-pulling and the rasp- berry jam-covered mouth. In this charming dance, Sesha and I experience some of our most joyful moments-laughing, ducking, grabbing, kissing. (Kittay 2000b) They are “small” pleasures, to be sure, but pleasures that provide so much of life’s meaning and worth that they permit the deep sorrows of Sesha’s limitations to recede into a distant place in the mind; they are small joys, but are so profound that they even make me question that very sorrow. It is a pleasure both Sesha and I would have been denied if we could not share our lives together. Because we as a family have been able to keep Sesha in our home and com- munity, those who have made contact with her and have learned to see her as we who love her do have gained new perspectives on what it means to be a person. Seeing Sesha in her interactions with those who care for-and about-her 5. See Sachs 1999 for a report on the hurdles put in the way of persons with mental retardation and other mental disabilities by changes in the immigration law that took effect in 1994. 567 Public Culture reveals that being a person has little to do with rationality and everything to do with relationships-to our world and to those in it. If personhood is limited to those who possess certain intellectual capacities and to those who are productive, then my daughter would not be a person. But my daughter is a person. She is, after all, my daughter. How can she be anything but a person‘? If traditional conceptions of personhood are not capacious enough to include Sesha and those who share her impairments, we need a new definition. I propose that being a person means having the capacity to be in certain relation- ships with other persons, to sustain contact with other persons, to shape one’s own world and the world of others, and to have a life that another person can conceive of as an imaginative possibility for him- or herself (see Diamond 1991). It is a def- inition that brings our relationships (real and imaginative) with others to the center of any conception of personhood. We do not become a person without the engagement of other persons-their care, as well as their recognition of the uniqueness and the connectedness of our human agency,6 and the distinctiveness of our particularly human relations to others and of the world we fashion.7 The shaping of one’s own world is a gift that each individual possesses and that some make more use of than others. Sesha, in spite of all her limitations, makes ample use of this gift. To be with Sesha is to enter her orbit, to gain a glimpse of the world as she constructs it. Even those who are still more limited than Sesha have this capacity. It requires an openness to experience it. In one who can scarcely move a muscle, a glint in the eye at a strain of familiar music estab- lishes personhood. A slight upturn of the lip in a profoundly and multiply disabled individual when a favorite caregiver comes along, or a look of joy in response to the scent of a perfume-all these establish personhood. We know that there is a person before us when we see, as David Hingsburger (2000: 24) says, that there is “someone home”; that the seemingly vacuous look is not vacant at all; that an individual’s inability to articulate a “language” as publicly defined does not indi- cate a lack of anything to say. To fail to recognize that capacity is to deny an indi- vidual’s personhood. When we do so, we cut ourselves off from those who enlarge our relational possibilities, and we lessen ourselves as persons. Keeping Sesha at home would not have been possible without an extensive and costly support system. Without these neither Sesha, nor her family, nor those 6. See Becker 2000 for an account of the good of agency and the ADA. 7. I take species membership to be central to our understanding of personhood, as does Diamond (1991). The kiss I share with another human is distinctively human. 1 argue that to reduce what makes us persons to a set of defined characteristics is a mistake. See Kittay 2000a. 568 Public Culture be made to partake in one tiny step in an assembly line production, and she is given some material compensation, we would call this “working” and being “pro- ductive”-whether or not this activity has any meaning for her.8 To so stretch these concepts both empties them of meaning and undermines the possibility that dignity is compatible with life-long dependency. It means that when a disabled person requires attendants to help her dress, assist her mobility, or monitor a medical disability-related condition in order to be “independent,” we mask a gen- uine dependency. But who in any complex society is not dependent on others, for the production of our food, for our mobility, for a multitude of tasks that make it possible for each of us to function in our work and daily living? Many of these dependencies are hidden, as when we fail to think about our dependence on those who grow our food. Other dependencies are hypervisible, such as the dependence that results from certain disabilities or the dependence on state support of poor, single moth- ers who cannot simultaneously be employed (at minimum wage) and care for young or disabled children. But dependence that goes unacknowledged is still not independence. Independence, except in some particular actions and functions, is a fiction, regardless of our abilities or disabilities, and the pernicious effects of this fiction are encouraged when we hide the ways in which our needs are met in relations of dependencies. On the other hand, this fiction turns those whose dependence can- not be masked into pariahs, or makes them objects of disdain or pity. It causes us to refuse assistance when it is needed. It encourages us either to deny that assis- tance to others when they require it or to be givers of care because we fear hav- ing to receive care ourselves. In acknowledging dependency we respect the fact that as individuals our dependency relations are constitutive of who we are and that, as a society, we are inextricably dependent on one another. I suggest that it is preferable to refuse the contractarian basis for the distribution of benefits and burdens (that only those who assume their share of society’s burdens are due a fair share of the benefits) and with it the myth of independence and an overem- phasis on rationality. In acknowledging dependency we can borrow from what is best in Marx: that benefits and burdens are to be assigned by need and capability, respectively (cf. Nussbaum 2000). Behind the ADA and the prohibition of discrimination is the deeper concept that physical or mental impairments should not result in lives devoid of the satis- factions for which we all yearn and which make life worth living. The satisfaction 8. These are all interpretations that I have, in fact, heard applied to very severely retarded adults. 570 of those yearnings may take forms that are distinctive, but the disabled person- When Caring Is Just and even when profoundly mentally retarded-is as entitled to them as the nondis- Justice Is Caring abled. The principle that the disabled are as entitled as the nondisabled should not be held hostage to a notion that a disabled person must become “productive” or live “independently” if “suitably assisted,” or that it is less costly to place an indi- vidual in a community rather than an institution. Supporting the Caregiver-Justly The appalling conditions found in the global Willowbrooks, of which the psychi- atric hospital in Mexico is only one example, are part of the history we thought we left behind when we moved large numbers of institutional residents into group homes. But the mistreatment, which largely had been attributed to the systemic inadequacies of what Goffman (1961) had called “total institutions,” has resur- faced in group homes. The headline in the Washington Post announcing the crim- inal conduct of those who run many of the group homes in Washington, D.C., and the callousness and indifference of some of the staff, testify to the persistent nature of the problem of good care for the mentally retarded. And this case is only one among many (see Ohlemacher 2000, Tully 1999, and Boo 1999). In “a society which defines and confines all meaning and worth in terms of production, profit, and pervasive greed,” writes James Trent in his history of men- tal retardation, the intellectually disabled will be exploited (1994: 277). In such a society, their caretakers will also be exploited and will have the opportunity to become victimizers as well as victims. The change from institution to group home can help, but the form of the residence will not alter the poor care its residents receive if the caregivers are as abject as their charges. In such a society, care will be minimal, and callous caretakers will be inevitable. Family Dependency Work The home may not always be “a haven in a heartless world,” but for the very vulnerable, connections with family members are often the only shield against the slings and arrows of an uncaring society. Family mem- bers are often, but not only (and not always), those whose ties are biological or legal, but are those “who by birth, adoption, marriage, or declared commitment share a deep personal connection and are mutually entitled to receive and oblig- ated to provide support of various kinds to the extent possible, especially in times of need” (Levine 1990). In the United States as well as in most other nations, state support for families who want to keep their family member home is far too limited and tends to be 5 7 1 Public Culture means-tested, providing relief only for families who are below a certain income. As one researcher states, “when programs are limited in scope and size, return- ing a person with disabilities to the community may be a euphemism for return- ing the child to the mother” (Nemzoff 1992: 20). Affluent as well as poor fami- lies find themselves overwhelmed with medical and caretaking responsibilities. The Kelso family, the father a CEO and the mother an activist for disabled peo- ple, made the front page of newspapers across the country when they abandoned their multiply disabled and medically fragile young son in a hospital during the Christmas holidays, when relief caregivers were in very short supply (Jacobs 1999).9 Given the circumstances families face, it is hardly a wonder that when families decide to place their child in residential care, there is an estrangement-an estrangement that comes with the relief of a burden too heavy to bear.10 In group homes within the community there is a better likelihood that the protective con- nections will be retained, but not for individuals whose families have already lost touch. When families disappear from the scene, there are few who provide the oversight to assure that residents are not neglected or abused. The weight of the burden that causes the estrangement is less a function of the impairment per se than of the larger society’s failure to help the family in its efforts to care for its disabled relative. Although familial caregivers are as capable of neglect and abuse as strangers paid to care,” affective bonds that normally form between family members offer important defenses against the harmful behavior, especially when supports are available to ease hardships. It would seem that expenditures that aided mothers, fathers, grandmothers, and other family members who do the dependency work or continue to assume dependency responsibilities even when their relative is in residential care would be especially well spent. Paid Dependency Workers If unpaid familial caregivers need assistance in main- taining their relationship to their mentally disabled family member and keeping ties alive for the long haul, caregivers who do their work for pay need support in 9. Manning 2000 places the Kelso case into the context of others raising children with serious medical and mental disabilities. 10. Reported in discussion with the director of the Sullivan County Diagnostic Center in Sullivan County, New York. 11. See Bonner and Rimer 2000 for a report on Johnny Paul Penry, a retarded man and convicted rapist and murderer in Texas, who suffered abuse at the hands of his mother. 572 Public Culture With one stroke, dependents-be they small children or incapacitated adults, be the impairments physical or mental-become an integral part of any social organization. To presume that they stand outside of justice, that they are not enti- tled, that-for reasons of their impairments and dependence-they lack rights, seems odd indeed if the point and purpose of such principles (if not the sole one) is a social order that secures the ability to care for dependents. Inevitable dependencies, the dependencies of our early years, old age, disabil- ity, and illness, however, have been privatized, so that we have come to discount them and the integral part of social life they in fact constitute. Doing so permits us to avoid our collective responsibility to maintain dependents. We forget the extent to which we need social organization to assure that should we become dependent, we will have the assistance we need, and to assure that should we have to care for dependents, we ourselves will not come to bear the full burden and become unable to meet our own needs. Not all of us will remain in a state of dependency as profound as that of my daughter. But any of us could become so- an illness or an accident could make us so. From the vantage point of our socially constructed independence, we might think, “Oh, but should that happen, I would rather be dead.” From the vantage point of my daughter, that is wasteful of what life has to offer, a failure to appreciate the gifts of being. Within the reigning liberal understanding of justice, we must continue to think of those with severe or profound cognitive disabilities as exceptional, as those who can never be citizens, whom we will care for out of compassion (or pity?), and who have no rights associated with their needs. If we meet their needs, it is out of a gratuitous kindness, a kindness they have no right to demand. As “excep- tions” then, those with profound developmental and cognitive impairments are vulnerable to the vicissitudes, indignities, and stigma of being passive recipients of charity. However, it may be that calling for charity and benevolence is sufficient for protecting this portion of the disabled population from neglect and abuse, that it is unnecessary to overhaul long-standing treatments of justice because they exclude the retarded. Can’t we argue from benevolence and charity that the men- tally retarded should not be neglected and abused? Indeed, to invoke “the stigma of being passive recipients of charity” and to speak, as I did earlier, of generosity as uncertain and gratuitous may be prejudicing the case and may be mere rhetoric. Is charity really inadequate? Why insist on a full-blown notion of personhood or citizenship to cover those whom so many have so long viewed as falling short, as inappropriate subjects for justice? Let us concede, for the sake of argument, that the severely retarded do not 574 have claims to citizenship and may not even be persons. Sti]], they should not be When Caring Is Just and harmed, because doing SO diminishes those in the larger society who would do Justice Is Caring the harm or allow the harm. Just as cruelty to animals may be immoral not because of what it does to the animal, but because of what it does to those who inflict the cruelty, so we should not be cruel to the mentally retarded. Is this not sufficient to protect the severely retarded from neglect and abuse? If such thinking is the basis for providing aid, the aid will, of necessity, be a low priority in any public distribution of resources. It will tend to be minimal, except in cases in which individual acts of generosity surface. But if such support is minimal, those who do the dependency work for this population will, as is now the case, be only minimally rewarded for their labors. The respect they gain for their work will be similarly minimal. The low pay and lack of respect will encour- age the conditions that breed the neglect and abuse that calls for charity and benevolence were intended to counter. For nonhuman animals it may be sufficient to invoke the principle that harm inflicted on them is wrong because of what it does to those who do the injury. Nonhuman animals can fend for themselves, if they are not harmed or interfered with by humans. But the fate of human beings who are impaired is intimately tied in with other humans-especially those who provide care. Not being harmed is only part of what we require when we are dependent, and the lack of care-the full-blown sort, not the labor mechanically carried out-is equivalent to harm. How the care is bestowed makes all the difference between the potential for harm and spirit-sustaining aid. Care is a costly morality: costly in the personal and emotional resources it demands and in the time it consumes (time that cannot be devoted to investing in a career or advancing oneself materially). When care is not adequately sup- ported, either the cost of care is borne by the caregiver alone or the charge fails to receive adequate care-or both suffer. If the retarded person should be treated with charity and benevolence because she should not be harmed, then she must be treated with an enlarged concept of justice-a justice large enough to embrace her and her (familial and nonfamilial) caregivers-that gives a right to care and support for care. Only then can the most vulnerable of disabled people hope to be safe and able to develop and flourish as persons in a just and caring society. To stigmatize dependency, ignore its frequency, and valorize only a particular segment of human possibility is to shirk our collective responsibility to take care of one another and to ensure that we are well taken care of by someone for whom our well-being matters deeply. Looking at justice through a lens of social con- structionism that only sees dependence as constructed and fails to see indepen- 575 Public Culture dence as still more constructed will only reinstate prejudices against disability. This time the prejudice falls most heavily on the shoulders of the severely and profoundly mentally retarded, who are the most vulnerable and whose enormous dependencies cannot be nullified by environmental modifications. But we exclude them from justice at a cost. That cost is the denial of the dependent animals we are. It is a condition no amount of rationality can alter. Although care seems to have less in common with rights and justice than with virtues and benevolence, the virtue and kind hand of care requires a just setting in which to blossom. In a context of condescending pity (toward the mentally impaired dependent) and exploitative demands (toward the dependency worker), the inequality between dependent and dependency worker too easily fosters dom- ination rather than caring. In a society ruled by the conceptions of liberalism, where rights are “trump cards,” charity and benevolence can never replace the guarantees of human dignity that entitlements of justice provide. In the end, this may be the great achievement of liberalism. It is one that we cannot forgo, no matter how much we challenge liberalism in our hope for a more progressive, a more inclusive, and a more caring political vision than it now provides. Justice that is caring begins with an acknowledgment of our dependency and seeks to organize society so that our well-being is not inversely related to our need for care or to care; such justice makes caring itself a mode of just action. Coda-An Acknowledgment For my daughter, dependence of the most profound sort will be part of her normal existence. But such dependence does not preclude a certain form of mutual depen- dence. I depend on her as well. Sesha and her well-being are essential to my own. Her smile chases away the trivial distractions of the day. Her embrace grounds me in what is important and precious. Watching her grow and develop skills and take pride in her accomplishments nurtures me as much as my own work. In another place I’ve written: “It’s perhaps self-delusional to say that I am as depen- dent on her as she is on me, but perhaps not. Others could take care of her and even love her-in fact, I must think that she will continue to thrive with or with- out me. But without her, I would wither” (Kittay 2000b). Writing that passage, acknowledging that I was even more dependent on her than she on me was itself a moment of discovery. Although my daughter can never be “productive” or pay back to society any- thing of material value, still her contributions are great. Her sweetness radiates and enriches the lives of everyone she touches, those who allow themselves to be 576 touched by her. Without her abundant and exuberant love, the world would be a W h e n C a r i n g I s J u s t a n d more dismal place. I am only beginning to fill volumes with what I have learned Justice Is Caring from her. Eva Feder Kittay is a professor of philosophy at the State University of New York at Stony Brook. Her most recent book is Love’s Labor: Essays on Women, Depen- dency, and Equality (1999). References Becker, Lawrence C. 2000. The good of agency. In Americans with disabilities: Exploring implications of law for individuals and institutions, edited by Leslie Pickering Francis and Anita Silvers. New York: Routledge. Bogdan, Robert, and Steven J. Taylor. 1992. The social construction of human- ness. In Interpreting disability: A qualitative reader, edited by Philip M. Fer- guson, Diane L. Ferguson, and Steven J. Taylor. New York: Teachers College Press. Bonner, Raymond, and Sara Rimer. 2000. Mentally retarded man facing Texas execution draws wide attention. New York Times, 12 November, A 1. Boo, Katherine. 1999. Invisible lives: Troubled system for the retarded. Wash- ington Post, 5 December, Al, 3. Cushing, Pamela, and Tanya Lewis. N.d. Negotiating mutuality and agency in care-giving relationships with women with intellectual disabilities. Unpub- lished manuscript. De Selincourt, Ernest, ed. 1935. The early letters of William and Dorothy Words- worth (1787-1805), 295-96. Oxford: Clarendon. Quoted in James W. Trent, The invention of the feeble mind (Berkeley: University of California Press, 1995), 9. Diamond, Cora. 1991. The importance of being human. In Human beings, edited by David Cockbum. Cambridge: Cambridge University Press. Ferguson, Philip M. 1994. Abandoned to their fate: Social policy and practices toward severely retarded people in America. Philadelphia: Temple University Press. Gastmans, Chris, Bernadette Dierckx de Casterle, and Paul Schotsmans. 1998. Nursing considered as moral practice: A philosophical-ethical interpretation of nursing. Kennedy Institute of Ethics Journal 8: 43-69. Goffman, Erving. 1961. Asylum: Essays on the social situation of mental patients and other inmates. New York: Anchor. 577 Public Culture Goodin, Robert. 1985. Protecting the vulneruble: A reanalysis of our social responsibilities. Chicago: University of Chicago Press. Hingsburger, David. 2000. First contact: Charting inner space. Quebec: Diverse City. Jacobs, Andrew. 1999. Pennsylvania couple accused of abandoning disabled son. New York Times, 31 December, Al. Kittay, Eva F. 1999. Love’s labor: Essuys on equality, women, and dependency. New York: Routledge. -. 2000a. Relationality, impairment and Peter Singer on the fate of severely impaired infants. APA Newsletter on Philosophy and Medicine 99: 253-56. -. 2000b. At home with my daughter. In Americans with disabilities, edited by Leslie Pickering Francis and Anita Silvers. New York: Routledge. Levine, Carol. 1990. AIDS and changing concepts of the family. The Milbunk Quarterly 68: 33-57. Locke, John. 1987. An essay concerning human understunding. Edited with a foreword by Peter H. Nidditch. New York: Oxford University Press. Macintyre, Alisdair. 1999. Dependent rutional animals. Peru, Ill.: Carus. Manning, Anita. 2000. Quietly overwhelmed. USA Today, 17 January, Al. Nemzoff, Ruth, E. 1992. Changing perceptions of mothers of children with devel- opmental disabilities 1960- 1992: A critical review. Working Paper. Working Paper Series. Center on Research on Women: Wellesley College, Wellesley, Mass. Nussbaum, Martha C. 2000. The future of feminist liberalism. Presidential address given at the annual meeting of the American Philosophical Associa- tion, Central Division, Chicago, 22 April. Ohlemacher, Stephen. 2000. Retarded patients lack protection, study finds. Cleve- land Plain Dealer, 8 January, 1 A. Rawls, John. 1972. A theory ofjustice. Cambridge: Harvard University Press. -. 1980. Kantian constructivism in moral theory: The Dewey lectures 1980. Journal ofPhilosophy 77: 515-72. ---. 1992. Political liberalism. New York: Columbia University Press. Sachs, Susan. 1999. An I.N.S. hurdle for the disabled: Promised exemptions elude many would-be citizens. New York Times, 18 February, B 1. Scheper-Hughes, Nancy. 1992. Deuth without weeping: The violence of everyday life in Brazil. Berkeley: University of California Press. Silvers, Anita, David Wasserman, and Mary Mahowald. 1998. Disability, difer- ence, discrimination. Lanham, Md.: Rowman and Littlefield. 578 Trent, James W. 1994. The invention of the feeble mind. Berkeley: University of California Press. Tully, Tracy. 1999. Retarded are found living in squalor. New York Daily News, 12 July, A7. Vobejda, Barbara. 2000. City wards face daily indignities: Documents illustrate the suffering of mentally retarded in D.C. system. Washington Post, 15 Febru- ary, Al. Wertz, Dorothy. 2000. Drawing the line. In The ethics of prenatul testing and selective abortion: A report from the Hastings Center. edited by Adrienne Asch and Eric Parens. Philadelphia: Temple University Press. Winerip, Michael. 2000. The global Willowbrook. New York Times Magazine, 16 January, 58-67. When Caring Is Just and Justice Is Caring 579 
work_dog4auai4vgt5f23dqihnevp2m	----	Notes and News. 481 would sooner divest themselves; and the best way to encourage crime of the worst character in the reading ranks of life is to promulgate the " couldn't help it " doctrine, taking care to invest it with the authority of science. Constance Kent's confession completely brushes away all the fine-spun cobwebs which pseudo- philanthropists and philosophers have been spinning about her case. The culprit owns her motive—the old-fashioned one of jealousy and revenge—and describes the consummate craft, subtlety, and cruelty with which she accomplished her purpose—a purpose which she had nursed for a long period, and which she would never have confessed had not her dormant better nature—of which no human being is utterly destitute—been awakened by the teachings of religion. Dr. Bucknill, whilst he throws any suspicion of insanity iu the case to the winds, yet thinks* " that, owing to the peculiarities of her constitution, it is probable that under prolonged solitary confinement she would become insane." He goes on to say that " the validity of this opinion is of importance now that the sen tence of death has been commuted to penal servitude for life ; for no one could desire that the punishment of the criminal should be so carried out as to cause danger of a further and greater punishment not contemplated by law." We are quite ready to concede to Dr. Buckuill that Miss Constance Kent's history shows that she has "a peculiarity of disposition" which seems to us, however, to be peculiar only in strength of will and depravity ; but that, because her early girlhood was blackened by a great crime, conspicuous for the coolness, determination, and circumspection with which it was executed, she is more likely to go mad than other criminals, we do not see. AYe sincerely hope that the accounts we have heard of Constance Kent's peni tence may be true, but we should be sorry to see her let loose on society on the ground that insanity might be produced by pro longed confinement. There is really but one party to be con sidered in the matter. Public safety and public justice require that such criminals as Miss Kent should not only be punished, but restrained from committing further crimes. Although in the course of their punishment insanity should arise, the infliction of a just sentence is not to be suspended or relaxed on such a possibility. We may also remind Dr. Bucknill that penal servitude and solitary confinement for life are by no means one and the same thing.—Medical Times and Gazelle, Sept. 2nd. Justice to Criminal Lunatics. On the 29th July, we commented on the case of George Broom- field, who had been tried for murder and left for execution—the 432 Notes and News. man being a manifest lunatic. Notwithstanding his trial by judge and jury, the man has since been reprieved and converted into a criminal lunatic. Again, on August 3rd, a man was tried for murder of his wife. The crime of murder, and the responsibility of the murderer, according to law, were as certain and clear in this case as in the case of Broomfield ; but Mr. Justice Montague Smith saw the case in a different light from the judge who tried Broomfield, and actually stopped the trial ; and the man was ac quitted on the ground of insanity. We venture to think that, in both these cases, there is a grievous miscarriage of justice ; and that the conclusions arrived at in both cases must tend to bring judge and jury and criminal law into disrepute. In the case of Broomfield, the man, after being tried by judge and jury, is again tried by a Government expert (whose name even does not appear) ; and by the sentence of this expert is upset the solemn verdict of the jury. This sort of upsetting of justice is becoming an everyday oc currence ; and it will continue to be so, until Government has the good sense to send an expert in lunacy to examine and give evi dence in court concerning the mental condition of criminals, who are supposed to be, or who are, lunatic. What can be more outrageous to reason and justice—more brutal, we might say—than to throw upon a lunatic the onus probandi his lunatic state of mind ? What, again, can be more dissonant from our English idea of administering justice, than that the verdict of the jury should be reconsidered and settled after trial by an unknown and irresponsible lunacy expert ? What can more tend to throw the opinions of judges and the verdict of juries into disrepute—to render justice uncertain—than the fact that, after the solemn judicial trial of a criminal, he is to be tried again in private by an individual who is responsible to no court of law ? Is it not a scandal to our laws that cases of such kind should be now of constant occurrence? Smethurst, for example, was condemned to death by judge and jury ; but his fate was finally decided by a report of the late Sir B. Brodie, who thus revised the jury's verdict ! Consider, again, the scandal of Townley's case. He is first made a lunatic by the jury and sent to a lunatic asylum ; and afterwards declared sane by Government experts, and sent from the lunatic asylum into penal servitude for life. All such constantly recurring scandals to justice can be prevented by making the impartial Government expert give his evidence in court during the trial, and, therefore, of course, before the jury deliver their verdict. Such a course of proceeding is demanded by humanity as well as by justice. Humanity requires that a skilled and impartial inquirer should investigate and report upon the con dition of supposed criminal lunatics; and save them—if they be Notes and News. 433 really lunatic in the eyes of science—from the hangman's hands. Why should a poverty-stricken wretch be put in a worse position than the rich criminal who is able to fee heavily some high authority in lunacy ? And again, justice demands, on the other side, that criminals who have the means of paying heavy fees in order to bring witnesses with high names into court, should not thereby escape the just reward of their crimes. Justice demands that, in suoli cases also, an impartial Government expert should be there to counteract the evidence of the authoritative names; i.e., if the evidence be guided by party considerations rather than by the actual facts of the case.—British Medical Journal, Sept. 2nd. The Legal View of Insanity. To the Editor of ' The Lancet.' SIR,—At Winchester, on July 16th, George Broomfield was found guilty of murder. He was ably defended by Mr. Coleridge, Q.C., on the ground of insanity. It was proved in evidence that two years previously he had been shot in the head, and had since been a "changed man;" that he had delusions and suicidal im pulses ; and that at this moment he is half dead from the effects of a shot-wound inflicted upon himself. The counsel for the crown made no attempt to rebut the evidence of Dr. Tweed, and that of a crowd of other witnesses who deposed to the insanity of the prisoner; nevertheless the learned judge, in his summing-up, told the jury that " it was not every aberration of mind that would free the prisoner— it must be such an aberration of intellect as to disable him from distinguishing between right and wrong." Under this ruling the jury returned a verdict of " guilty," and the poor, lunatic cri minal, whose own only plea was, " I wish to die," is duly sentenced to be hanged. The same eloquent counsel, before the same judge, will, on Saturday, plead in behalf of Miss Constance Kent. It is possible that in her case the defence of insanity may be set up, and may be equally justified ; nevertheless it is clear that, whether insane or not, she must be condemned to death on her own confession, by making which she herself shows her full appreciation and knowledge of the difference between right and wrong. Surely there must be some grave mistake as to the value of a test that inevitably sends the possibly insane daughter of an insane mother to die upon the scaffold. That it is practically fallacious must be shown by the fact that, standing by her side, condemned in the same week by the same judge, will be found another unhappy homicide, admittedly suffering under mental disease arising from physical injury to the brain, 
work_drnpyrtgfzdxzj732z5htznzve	----	The Journal of Teaching and Learning, Fall 2018 Vol. 12, No. 1, pp. 59–62 http://www.uwindsor.ca/jtl 59 Book Review: Transforming Teacher Education for Social Justice by By Eva Zygmunt and Patricia Clark, with Jon Clausen, Wilfridah Mucherah, and Susan Tancock New York, NY: Teachers College Press, 2016, 138 pages ISBN: 978-0-8077-5708-6 (Paperback) Reviewed by: Oluseyi Matthew Odebiyi University of Alabama The uncertainties in the current dichotomized social and political climate necessitate a new way of thinking about quality teacher improvement. Crafting this dynamic way of thinking has become the central focus of teacher education with a focus on improving instructional competencies of future teachers in handling hot-point issues such as diversity in lived experience, religion, culture, and race to mention a few. Teacher education programs increasingly focus on how future teachers can create equitable and democratic approaches, and incorporate the lived experiences of historically marginalized students and create an opportunity for all students to become participatory global citizens. Zygmunt, Clark, Clausen, Mucherah, and Tancock’s (2016) book Transforming Teacher Education for Social Justice, draws on research to examine the relationship among the nature of teacher education, quality of teachers, and the dimension of experience provided for marginalized students. The book proffers an alternative to the ideological inconsistencies inherent in traditional teacher education while simultaneously addressing the perpetuated inequity and social injustice in public school classrooms. The book advocates for a social justice-based immersive teacher residency model tagged “schools within the context of community” (p. 9). Teacher candidates are educated within and immersed in the lived experiences of the community settings where young learners live and learn, an approach that is beyond the traditional teacher preparation. This social justice-oriented teacher education provides a framework for restructuring and actualizing the need for change in teacher education programs’ focus on strategies for addressing disadvantaged public schools from seemingly difficult structural change to improving teacher quality (Takayama, Jones, & Amazan, 2017). Unlike the current traditional teacher education practice of strictly sending http://www.uwindsor.ca/jtl Book Review: Transforming Teacher Education for Social Justice Journal of Teaching and Learning 12(1) 60 teacher candidates to various cultural communities without prior negotiation and mediation, the book elucidates intentional engagement of community expertise and wisdom in the training of future educators for effective practice. The book has six chapters. The first chapter examines an inclusive collaborative approach to situated learning in the community of practice. It discusses in detail the theoretical and structural frameworks for schools within the context of community. The immersion program provides teacher candidates the concrete experience of understanding the contextual complexities of the environment beyond the classroom. Notably, the book speaks to the heart of the needed mediation between huge classroom diversities and teaching practices. The book provokes readers to contemplate questions such as, how can teacher preparation programs develop in future teachers the pedagogical competencies and dispositions to address differential personal experiences of marginalized students through a socially just model? This approach to teacher education provides reciprocal ways out from intense navigation of agency for both teacher and students (Bamberg, De Fina, & Schiffrin, 2011; Sunal & Haas, 2008). Chapter two focuses on a community-based interdisciplinary approach that current traditional teacher education programs can leverage to connect their formal and structural perspectives to community conceptual perspectives of teacher education that integrate content, pedagogy, and practice. Pivotal to social justice, teacher education is the promotion of multidimensional meanings, active engagement, and partnership among teacher preparation colleges, schools, and communities. Supported by groundbreaking research, chapter three explicitly describes how community teachers can be developed in line with the schools within the context of community framework. Remarkably, this chapter establishes a deviation from the common practice of textbooks presenting only the theory and aggregated view of how teacher preparation works (Odebiyi & Mansouri, 2017). The book provides details from actual practice on developing teachers that are conscious of the community and promote social justice. Explicating the sustainability, the model is ongoing and implemented intentionally to train teachers who connect formal curriculum, instruction, and assessment to young learners’ lived experience. Arguably, these capacity building experiences helped the teacher candidates to better serve diverse students and meet each community on their own terms. Chapters four and five jointly describe the effects of the social justice residency model on the teacher education program, teacher educators, teacher candidates, the students and the host community. The description of the teacher candidates’ pedagogical and dispositional successes is compelling. Various data speak to the achievement of educating teachers for social justice. Achievements include the ability of program graduates to identify and respond to critical incidences, as well as a highlighting of how future teacher would be able to synthesize learning, develop strong self-efficacy, and transition from the teacher education program to practice without difficulties. As per students’ learning and behavior, the evidence provided in this book convincingly explains how the university-school-community partnerships help improve school culture and students’ behavior and learning. Finally, chapter six is a form of appeal to teacher education programs to adopt or adapt the social justice approach to teacher preparation. Given the current climate of uncertainties, the Journal of Teaching and Learning 12(1) O. M. Odebiyi 61 authors advance that social justice-based teacher education represents a paradigm for a great teacher education program because moral and ethical codes guide teachers and inform their daily decisions. Teacher educators and teacher candidates are challenged to contribute to the community and students’ learning by developing an understanding of the community conditions and addressing the learning needs of their students while working alongside members of the community. This way, teacher educators and teacher candidates get acquainted with the contextual and systematic structures that inhibit the work of social change in marginalized communities. The framework for developing and implementing social justice teacher education in this book is research-based, however, the authors did not provide enough caution that its implementation does not guarantee in all cases the preparation of future teachers whose practice would exemplify social justice. In addition, the book does not draw a clear line between social justice, culturally relevant pedagogy, and culturally responsive pedagogy. The book assumes equivalence in meanings for these constructs. Scholars in these areas may not necessarily agree with such equivalence, hence understanding the book's framework may become controversial and mislead readers—especially those who are not conversant with the specified fields. Educating teacher candidates for social justice is more important now than ever before because of the conflict between the growing diversities among learners and the failure of nations to educate children equitably. Transforming Teacher Education for Social Justice would be a beneficial resource for educators, researchers, policymakers, and readers who believe in social justice. It would be a good starting point for educators and practitioners who want to learn about a practical way of incorporating social justice into teacher education programs and practices to further the course of social justice in classrooms. Practitioners and researchers can learn from the practical explanation offered by the book on how teacher educators and teacher candidates can align theoretical knowledge with, and be more actively engaged in, the knowledge construction and meaning-making experiences of students and communities. Researchers in teacher education would find the framework useful to adapt because of its flexibilities to suit different programs and communities. The authors demonstrate the adequate ethical value of openness by offering the required level of commitment for successful implementation of the social justice model. If properly adopted, the perspective advanced in the book would deliver the promise of an equitable and socially just learning opportunity that is the hallmark of public education, one which everyone in educational studies is pursuing. References Bamberg, M., De Fina, A., & Schiffrin, D. (2011). Discourse and identity construction. In Schwartz, S. J., K., Luyckx & V. L., Vignoles (Eds.). Handbook of identity theory and research (pp. 177-199). New York, NY: Springer. Odebiyi, O. M., & Mansouri, B. (2017). Looking through the social studies textbooks with activity type lenses. GATEways to Teacher Education, 28(1), 1-9. Sunal, C. S., & Haas, M. E. (2008). Social studies for the elementary and middle grades: A constructivist approach (3rd ed.). Boston, MA: Pearson. Book Review: Transforming Teacher Education for Social Justice Journal of Teaching and Learning 12(1) 62 Takayama, K., Jones, T., & Amazan, R. (2017). Thinking with/through the contradictions of social justice in teacher education: Self-reflection on NETDS experience. Australian Journal of Teacher Education, 42(4), 83-96. 
work_duwdnv42frdxvhwapzeyhnuf3q	----	Charles R. Menzies New Proposals Editorial Collective Introduction New Proposals: Journal of Marxism and Interdisciplinary Inquiry Vol. 7, No. 2 (March 2015) Pp. 5-6 On the cover of this issue of the journal is a photo taken in the wheelhouse of a coastal British Columbia fishboat. It is dark out, the image is not in sharp focus, the man on the wheel is staring up at an electronic map display, and we can’t see forward through the vessel’s windows. For those familiar with navigational electronics you will know that the green display is of a GPS (Global Positioning System) assisted chart plotter. It shows where one is and aids in finding the way towards one’s destination. On a vessel of this size we also had a radar that helped show other vessels moving around us, radios provid- ing information on weather conditions, and devices to tell us how deep the water was underneath the boat’s hull. All of that is meaningless, of course, if we didn’t also know how to interpret the informa- tion. All of that electronic data is then compared with the sounds we hear and what we see when we open a wheelhouse window and peer forward into the dark, rainy night. Early navigators travelling through these same waterways millennia ago did not have our electronic instruments. They did share a similar understanding of the physical sense of navigation and observational skills required to move through unfamiliar terrain. The old histories of navigating through these waters include references to landmarks and currents that remain familiar to us today. Yet we see them slightly differently and we use them to purposes somewhat different than our predecessors did. We remain intent, however, upon finding our way from one point to another. Łagyigyet, the old people or ancestors, made their lives in these waters. They struggled to find a balance between themselves and their human needs and the other social beings that inhabited these waters. While their world was not perfect, it was a world in which a certain sense of social justice pervaded. When the people lost their way from the path retribution was swift – floods, slides, death felled the prideful. Out of each crisis and col- lapse the old people rose again and reestablished themselves. The most recent crisis, one that we have yet to find our way out of, was heralded in by the arrival of a new class of navigators: European merchant adven- tures. These sail powered ships arrived searching for new resources to exploit as part of the capitalist expansion out of Europe then underway. In addi- tion to being instrumental in expanding capitalist relations of production, these newcomers brought devastating disease that led to massive depopulation at genocidal levels. Out of the ensuing melee came the imposition of a system of economic and politi- Navigating the Way Toward Social Justice 6 • C. R. MENZIES cal governance that has prioritized greed, individual advancement, and dishonesty. The 20th century was witness to several disastrous attempts to find an escape from the depredations of capitalism and capitalists. The revolutionary attempts at change fell prey to the poisoned global environ- ment and crashed in on themselves. In their wake even worse examples of capitalist libertarianism have emerged. Mistakes can happen. Knowledge, tools, skills don’t guarantee that our journey is made without difficulty or mishap. I have stood in a wheelhouse of a boat when the seas were too rough, the condi- tions too dangerous to go forward. I recall one time when we were all gathered in the wheelhouse. We were heading out across a treacherous open body of water with the waves and wind coming up. A decision needed to be made. Did we keep moving forward, take the risk of that dangerous crossing? Ultimately the decision was made to turn back. Yet, even that decision was difficult to execute. To turn the boat at the wrong moment would capsize her. That I write about it nearly 40 years later testifies to the fact we made the turn and brought the boat around. The journey toward a more just society is fraught with turnarounds, disruptions, and even loss of faith in the possibility. The commentaries and arti- cles in the opening section of this issue hold fast to the idea that a better world is not only possible but also desirable. From scholarly activism to feminist interventions we have a set of tools and a body of knowledge that can help as we navigate forward. In the cracks and fissures of an imperfect capitalism we can make spaces for collaboration and cooperation, even in the center of imperialist nations (see Shannon this issue on museum collaborations with Indigenous curators). The papers in the second section of this issue provide additional content and analysis of the world that we must now navigate through. Here we see the role of information technology in shaping the early 21st century landscape of capitalism. A lot has changed since the days when a paper newspaper sold on a street corner could be a revolutionary instrument of change. Today the internet has superseded that older technology. Nonetheless the same configuration of capitalism remains at the heart of the problem: a patent disregard for human sentiment or dignity. We can offer no certainty about the outcome. We can and will offer examples to follow. Read on and join the journey toward social justice. 
work_dva4rxhtgbaahdymbvfbvoxgnq	----	Infinite Justice: An Architectural Coda Author(s): Arindam Dutta Source: Grey Room, No. 7, On 9/11 (Spring, 2002), pp. 40-55 Published by: The MIT Press Stable URL: http://www.jstor.org/stable/1262584 Accessed: 28/05/2009 11:18 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=mitpress. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org. The MIT Press is collaborating with JSTOR to digitize, preserve and extend access to Grey Room. http://www.jstor.org http://www.jstor.org/stable/1262584?origin=JSTOR-pdf http://www.jstor.org/page/info/about/policies/terms.jsp http://www.jstor.org/action/showPublisher?publisherCode=mitpress Infinite Justice: An Architectural Coda ARINDAM DUTTA We begin with Lyotard's opening paragraph on the "differend": As distinguished from a litigation, a differend [differend] would be a case of conflict, between (at least) two parties, that cannot be equitably resolved for lack of a rule of judgement applicable to both arguments. One side's legitimacy does not imply the other's lack of legitimacy. However, by applying a single rule of judgement to both in order to settle their differend as though it were merely a litigation would wrong (at least) one of them (and both of them if neither side admits this rule). Damages result from an injury which is inflicted upon the rules of a genre of discourse but which is reparable according to those rules. A wrong results from the fact that the rules of the genre of discourse by which one judges are not those of the judged genre or genres of discourse.1 There are the standard questions that need repeating: Whose justice? Whose history? Whose memory? Whose architecture? Whose modernity? Lyotard's dazzling passage introduces the concept of the differend as the residual or excess element in the scene of the encounter, any encounter, between heterogeneous modes of discourse. To be attentive to the differend is to bear witness to the irreducible alterity of the other, at the very point where either party seems to resist the very terms of the encounter. Lyotard opens the framing of the differend with a European example-the problem at hand is juridical, posed as a problem of evidence. Those who witnessed the gas chambers in action, those who could testify to their existence and use, died in them. In their absence, how are others to persuade the tribunals that the gas chambers did indeed exist, or more important, to whom do they owe justice when the victims themselves no longer live to phrase their tes- timony? Since the rest of the world did not die in the gas chambers, what world would be a beneficiary of this justice? The questions asked earlier can be reframed, not only as whose justice, but also as justice for whom? In its ultimate unwillingness to address these questions within its own territo- ries, Europe exports the "Jewish" differend to Asia. Let us reframe the differend through an Asian example. The place: Hopetown, part of the penal colony founded by the British in Grey Room 0 Spring 2002, pp. 40-55, 2002 Grey Room, Inc. and Massachusetts Institute of Technology 41 -~' 1' - . THE I1DIAN EMPIRE rpuea~ f Sir W3a? WImoa Wlsohmte MPERIAL GAZETTEER OF INDIA ,I. . ̂ &. L ::*n*r**rr u,~~~~ O "Map of India showing the Principal Buddhist Localities:' in James Fergusson: History of Indian and Eastern Architecture. (1876; Delhi: Munshiram Manoharlal Publishers, 1998). 40 the Andaman and Nicobar islands, in the middle of the Bay of Bengal. The time: the evening of February 8,1872. A visiting dignitary, an Irishman named Richard Southwell Bourke steps off the boat along with his official retinue. They are here to inspect the programs set underway to "reform" the convicts. As they head back to the ship after having toured the island, a man creeps up behind Bourke, stabs him in the back, and kills him. The mur- derer's name, as far as we are able to determine, is Sher Ali. He is a Pashtun native of Jamrud, near Peshawar, at the foot of the Khyber Pass. After 1901, having miserably failed to conquer the entirety of the Pashtun homelands, the British will call this area the North-West Frontier Province (NWFP), a name that remains to the present day. Its strategic geopolitical importance as the frontier toward the vast Tsarist empire to the north takes precedence over local place names. To its immediate west is Afghanistan, much of whose population is composed of the same ethnic background as Sher Ali's. Over the period between 1838 and 1919, Britain and Russia will fight three major wars and many small battles in this region, using several local warlords as proxies and dupes. Sher Ali, a subaltern in the Peshawar police, had been arrested for avenging the murder of a kinsman by killing the assailant, a practice justified in tribal custom under certain conditions. British jurisprudence, which forbade the individual from taking the law into his own hands, deemed Ali's act a crim- inal infraction. The trial was carried out on what was at best questionable jurisdiction-had Ali incidentally carried out the murder outside of the porous borders of British-held territory, he would not have come under the purview of British law. Taking these circumstances into consideration, the magistrate handed out what he considered a lenient sentence-transporta- tion to the Andamans. It is precisely because of the importance given to cus- tom in British jurisprudence and political thought that the incarcerated subject has to be distanced from its "traditional" surroundings. Edmund Burke's traditionalism is as much the progenitor of the penal colony as the utilitarianism of Bentham. Considering this symbolic ignominy rather than legitimate punishment, Sher Ali asked to be put to death, rather than be incarcerated in a foreign land. This voluntary offer was, of course, ignored. At the Andamans, Ali now set about planning his own death, but this time he would factor in British imperial justice in an entirely new equation. When Sher Ali killed Bourke in 1872, he had waited four years for the opportunity, four years of planning and waiting not only for a significant victim to arrive but for his own death as well. And the murdered victim was the ideal one, indeed it was an assassination and not just a murder, since Bourke was none other than the Earl of Mayo, Benjamin Disraeli's appointee as the Viceroy of India, the Laat Saaheb2 of Britain's eastern empire. The 42 Grey Room 07 incident triggered shock waves across the world, including a corresponding burst of nationalism in Britain itself. Many commented on how mourning had "united" the country from its usual fractious internal rivalries. Newspapers opined and discussed, editorialized and investigated the possible geopolit- ical implications of the event. The British-run Friend of India suggested that the government "[s]end the scoundrel to perdition in a pig skin to break his caste."3 When asked to divulge his accomplices, Sher Ali refuted any larger plot, "Mera sharik koi ddmi nahin; merd sharfk khuda hai" (No mortal is my companion, my companion is God himself).4 His statement notwith- standing, almost everybody was intent on wrenching global meaning out of this isolated act. Liberals, nervous not to sound antipatriotic, made ineffec- tive noises attributing the act to disaffection over Britain's economic and taxation policies. Some pointed out Mayo's oppressive treatment of Wahhabism, an insurgent and millenarian movement that had recently emerged in India. The Times in London darkly hinted at the existence of a secret "fraternity of hatred," of a secret Wahhabi plot to undermine the British empire. Originally founded in the eighteenth century in the Nadj area where the Saud tribe had established a kingdom on its literalist emphasis on the reading of Islamic scriptures, the Wahhabi movement in India had no direct connections to the Arab context. Its beginnings stemmed from conversions to the cause in the eastern city of Patna. Its early campaigns had been directed against the Sikh kingdom, under which Muslims were badly off. Since the British were fight- ing the Sikhs at this time, they found it convenient to encourage them in the early stage. However, with the annexure of the Punjab in 1848, the Wahhabis increas- ingly became a thorn in the side of the colonial administration as well. After a spate of police crack-downs on the insurgent sect, tensions came to a head when J.P. Norman, the officiating Chief Justice of the Calcutta High Court, was assassinated on September 20, 1871 by a man affecting Wahhabi sym- pathies, barely three months before Mayo's own assassination. The specter of international insurgency with sectarian adherents as far distant as Mecca and Calcutta unnerved many who saw all manner of conspiracies being hatched to destabilize the British empire. It hardly helped that the Duke of Edinburgh, Victoria's second son, had been shot at by an Irish Fenian on the way from India to Australia in 1868.5 After Mayo's murder, officials searched for letters that Sher Ali might have received from the "Patna malcontents," hoping to establish links with the larger Wahhabi movement. No such "proof" was forthcoming. The British administration commemorated Mayo's short-lived career in India with a spate of institution building that would bring home the mes- sage of the intended persistence and tenacity of the Empire. Consequently, Dutta A Infinite Justice: A A rchitectural Cod 43 Left: Mayo School of Arts, now Pakistan's National College of Arts, Lahore. Photo: Arindam Dutta. Opposite, left: Lahore Museum, exterior. Although the museum as moved into this building after John Lockwood Kipling's departure from Lahore, it is a testimony to his legacy. Photo: Arindam Dutta. Opposite, right: Lahore Museum, interior. Photo: Arindam Dutta. even as the administration was unwilling to pub- licly state that Mayo was assassinated for political reasons, every official action they took thereafter reflected precisely those apprehensions. This Th-e o memorializing impetus realized its apogee in Lahore, capital of the erstwhile Sikh kingdom, i the latter a traditional enemy of the Afghan rulers, with the construction of the Lahore museum and the Mayo School of Art. Both the program and the form of these coupled institutions reflected the t . io transformed attitude of the administration toward .......accommodating "native agency" in the policies of governance, especially after the 1857 Mutiny. The spate of localized insurgencies that continued throughout the nine- teenth century was to keep the question of tradition alive in debates over colonial policy. In any case, the creation of the Punjab as a "nonregulatory" province in 1849 had already signaled the turn toward the institutionalization of native customary agency.6 This turn derived as much from economic considera- tions as political ones. A minimalist administration that left the terrain of domestic and personal law for native adjudication also absolved itself of the infrastructural costs of a full-fledged state apparatus at the periphery. From the mid-nineteenth century onward, colonialism seeks not so much to trans- form native subjecthood as to manage it. Punjab's administrative status thus contrasted sharply with the early "Regulatory" provinces (such as Bengal) where personal and domestic laws were brought directly under the purview of colonial jurisprudence. Recurrent insurgency from below owing to colonial interference in domestic and personal laws thus only appeared to justify a general tendency toward minimalism in colonial governance from above. This dual rationale was instrumental in shaping a decentralized and two- tiered policy where customary jurisprudence devolved to native authorities and the colonial administration retained control over political, criminal, and economic policy. Both feminist and other scholars of colonialism have noted that this two-tiered structure effectively exacerbated the patriarchal and despotic dimensions of this seemingly decentralized equation. In this system of "indirect" rule, traditional informal transactions acquired formal sanction from above, thus creating the conditions for increased native despotism at the ground level within the rubrics of "household," "caste," and "tribe." Imperialism resolves the problem of the differend by situating it within relativism. The architecture of colonialism reflected the above concerns of gover- nance at almost every level. The Mayo School and Museum were designed 44 on the lines of what was now shaping up to be the official architectural style of the British administration in India, the so-called Indo-Saracenic style. This representational motif was consistent with the general thrust of colo- nial policy in economic, political, and cultural fields. India would have her antiquity resurrected and restored to her through the recuperative stability of the Empire. To that effect, the manifestoes underlining the school and museum envisaged them as headquarters to document, incorporate and reinvigorate the traditional artisanal trades of the region in order to instill industriousness within native life. The sphere of "employment," realized through the alibi of traditional artisanry, could now be activated as a ruse to cover over the general economic depradation in the colonial landscape. In the imperial periphery, the monument is not so much a mute testimonial as a machine for subject formation.7 Let us cut to a scene within the Lahore Museum, which the British have renamed Jadoo-Ghar or Wonder House, appropriating native "irrationalist" colloquial language as official terminology.8 The time: indeterminate. We cannot be quite sure. The North-West is restive again. Beyond Afghanistan looms the vision of an all-pervasive Russian empire that threatens to infil- trate the core of Britain's territories in Asia. Soon there will be a war. At this time, a Tibetan lama arrives at the gates of the Museum. A boy playing out- side takes him in to meet the elderly curator, a white-bearded, gentle, learned Briton empathetically expert in the ways of the East. A peculiar encounter then unfolds-peculiar because it signals a shift in sign systems. The lama has come to the Museum because he has heard of the renowned Buddhist statuary kept there. At the sight of an image of Sakya Muni Buddha, the lama breaks down. The secularized ruins and fragmented museum display of a lost Buddhist civilization in South Asia suddenly becomes activated into a palpable and living idiom. Sculpture once again becomes idol. Curatorial Dutta It filnite Justice: An Architectural Coda 45 canon becomes religious pantheon. Seeming to acknowledge the East's greater profundity in these matters, the European curator defers his sense of ratio- nalist historiography to the lama's transcendentalist understanding. Both the curator and the lama, through their respective powers of knowledge and faith, appear to share a stupendous secret that both must realize in their sep- arate ways. "We be craftsmen together, thou and I," the lama tells the cura- tor, in their respective quest for a redemptive destiny. The history of the past encapsulated in these lifeless images augurs a future British India where knowledge and religion will impeccably coincide in a time of peace to come. As proxy agent for the curator's epistemological project, Kim, the little brown-skinned boy loitering outside the museum will accompany the lama on his sacred search in order to realize this convergent prophecy. The scene is, of course, from Rudyard Kipling's Kim.9 It is well known that Kipling based the character of the curator on his father, John Lockwood Kipling, professor of architectural ornament, founding principal and cura- tor of the Mayo School and the Lahore Museum. Part of an emergent gener- ation of liberal colonial administrators, Kipling Sr. derived his creed from the ongoing scholarly effort by the British to unravel the native's frame of action and ethics through the extraordinary interdisciplinary collaboration between quite distinct professional endeavors. Colonial scholars such as James Fergusson (in significant ways the doyen of a global architectural history) and, in his wake, Alexander Cunningham, first head of the Archaeological Survey of India, equated formal typologies with different ethnic and racial groupings.10 Thus Indian architectural history came to be periodized into successive stages such as "Buddhist," "Jain," "Brahmanical," "Indo-Scythian," "Pathan," or "Moghul," respectively.11 The institution of the Archaeological Survey underlined a series of parallel initiatives in museology and preser- vation. At least part of the concern over colonial archaeology and preservation stemmed from the fact that Indians themselves seemed to be least interested in either recovering or preserving their own past. Under a recuperative imperial epistemology, the contemporary Indian (or for that matter, Greek or Egyptian) unable to gauge his sense of historical agency, would gain a sense of his ethical present through the colonialist excavation of the past. Memory must be instituted as if intuited. We are in Blade Runner territory here-historical memory is always already an implant. This is the secret, the fabulous normalization of complicity between colonizer and colonized, that is shared by the curator and the lama-the curator desires to institute what the lama intuits. The lama's character is also significant for another reason. As is well known, the overwhelming and minuscule minority of Europeans as compared with the native population necessitated the creation of a native gentry and 46 Grey Room 07 bourgeoisie who would act as imperialism's agents at the periphery. It is the native bourgeoisie's political consciousness, ever susceptible to European notions of political action and opposition, that must be circumscribed by this form of history. In Kim, the Bengali Hindu spy for the British and aspi- rant to membership of the Royal Geographical Society, Hurree [Hari] Babu, the figure held most in contempt by Kipling-approximates the subjective outlines of this emergent figure.12 In the affairs of British India, Buddhism, more or less a political nonentity, could therefore also be invoked as a major alibi in the establishment of Pax Britannica, precisely to counter this polit- ically emergent subject (both Hindu and Muslim) militantly recuperating its religious identity as instrument for sedition. With the transition of mercantilism to industrial capitalism in Europe, transcoded in philosophy and culture as the "Enlightenment," European states could dissemble their identity as triumph of the political state over religion. However, the basic identification of every European state with one particular religion remains to this day a dirty little secret that could be made visible, or covered over at will. In this sense, there is nothing "spontaneous" about singing "God Bless America" on the Capitol steps in Washington. Triumphal religion can write this history quite differently: the massacre of Jews in Europe could be written off as a crime of the German nation rather than a crime of Christianity. This is not restricted to the First World. At the height of the first wave of secular nationalisms in the Third World, to the astonishment of many, "religion" was introduced as one of the two funda- mental principles to be discussed at the famed Bandung conference in 1955.13 In a classic instance of derivative postcoloniality, Third World lead- ers pledged to build solidarity in the shared fight against underdevelopment and European colonialism on the principles of Buddhism.14 In the nineteenth century it is because of this fear of an insurgent nation- alism driven by religion that imperialist politics acquires its secular face in the global arena. The secularism of European polity would be used not to battle religion in Europe, but to circumscribe it in the colony. Religion would therefore both be undone in its insurgent potentials, even as some of its ele- ments would be transcendentalized into proxy ideologies for the imperial agenda of keeping the peace. The political script of empire could now be read as our Benjamin Disraeli, your Gautama Buddha. Through this political reframing of the economic theater of imperialism as a cultural conundrum, as a conflict between religion and customs, the colonized native bourgeoisie would be pried away from attending to the most depredatory effects of the British imperial system. The skeletons of the 30 million Indian dead from starvation in the period between 1870 to 1947 would be covered over by the bourgeois staging of a conflict between cultures and civilizations.15 Dutta i tnfinite Justice: An Architectural Coda 47 In the context of colonial archaeology, the contending claims of a cultur- alist ethnography invoking an identification between native agency and the romantic evocation of place found itself at odds with the demands of scien- tific epistemology and research. The claims of the museum, repository of the latter strategy and of the Enlightenment principles of disinterested study of objects removed from their context, began to be squared off in the 1860s against the countervailing principle of preserving artifacts and buildings in situ. Even as the introduction of reproductive techniques such as photogra- phy, casts, and drawings appeared to satisfy museumatic demands, colonial archaeologists and architectural historians now saw India itself as an open- air museum. The categories created in the museum were now extended to the geographical map itself. Henry Hardy Cole, first Curator of the Department of the Conservation of Ancient Monuments, founded in 1880, therefore reclassified the Indian map, marking different sites as B (Buddhist), H (Hindu), J (Jain), or M (Muhammadan). Imperialism places the differend within relativism-but this relativism is limned precisely byfiguring a tran- scendentalist identity larger than the peoples that encompass it. In the con- text of the Indian North-West the largely neofeudal character of the colonial administration, born out of political expediency, is supplemented by parallel claims to the transcendant history of Islam and Buddhism in the region. Thus, the many "open-air" sites of the Gandhara region and the Bamiyan Buddhas complement the limited institutional locus of the Lahore and the nearby Kabul museum-thus explicitly encoding them within a larger regional identity that appears to figure its importance in global civilization. It is important to note here that this dyad of regional trans-signification and global particularity is the principal thematic invoked in the first wave of anticolonial nationalist imaginaries. It is because of the noncoincidence of transcendentalist imagination and geographical map that the nationalist project can be said to be a kind of longing for an origin that is inevitably located "elsewhere." Nothing epitomizes this better than the case of the two states carved out of British India. The Indus Valley civilization, perceived fount of Indian history, has most of its archaeological remains located inside Pakistan, while the principal imperial remains of Pakistan's presumed cul- tural forbearers, the Islamic emperors, are located inside India. In the after- math of so-called political decolonization, the complicity between this flawed transregional imaginary and a derivative Eurocentrism can be said to be underpinned by the creation of the United Nations, the old cosmopolitan specter of a global community of nation-states. Correspondingly, institu- tions such as UNESCO and the World Heritage project can be considered to be the direct legatees of the Fergussons and the Cunninghams in that their prin- cipal aim is more to secure a global pax than to sanctify local imaginaries. 48 In contemporary South Asia this has had some interesting ramifications. On December 6, 1992, gangs of the Hindu religious right destroyed an aban- doned mosque, the Babri Masjid, named after the first Mughal emperor Babar, in the northern Indian town of Ayodhya. Even as this symbolic affront cre- ated ripples across Asia and the Islamic world, the mavens of Eurocentric global "cosmopolitanism" and agencies such as UNESCO kept quiet. The destruction of a mundane mosque was an affair too regional to be of import to the concept of World Heritage. In the subsequent national election, the political party responsible for the destruction was voted into power in India's federal government. It remains there today. In the beginning of 2001 the Taliban government, enraged at what it perceived as the global commu- nity's apathy toward its economic desperation, blew up the ancient Buddhist sculptures in the province of Bamiyan. B becomes M on the map. The spark appears to have been ignited by UNESCO's offer to come in with teams and millions of dollars to preserve the sculptures when the Taliban was desperately seeking international funding to stabilize its government. Militia leaders also pointed to the destruction of the Babri Masjid as precedent. The "international community's" reaction was distinctly different from the Babri Masjid incident. In the context of the history that I have narrated above, how are we to read these apparently corresponding acts of iconoclasm? Identitarian funda- mentalism against capitalist cosmopolitanism? As comeuppance for a his- toriographic strategy set in place by imperialism? As the revenge of the local and particular against the global and the universal? Not quite. First of all, under the dispensations of modernity realized by imperialism and neocolonialism, the global can hardly be equated with the universal. Conversely, the local is hardly the particular. I would like to return us to the concept of the differend, and with it the singular case, both juridical and historiographic, of Sher Ali. I have noted above that he had requested to be executed by the British administration rather than be trans- ported to a distant place. In the following section I will attempt to suggest that Ali's request can be said to be unraveling the project of European humanism. There are a few more determinants that one would have to con- sider along the way. One question cannot be ignored, especially after close to two hundred years of a repetitive history-Why Afghanistan? Peter Hopkirk's extraordi- nary series of books on Central Asia have highlighted the incredible history of the contestations over the region by the great imperial powers. Of these books, written from an Anglophone romantic perspective, The Great Game: On Secret Service in High Asia is remarkable. In addition, five of his other books also narrate the complicity between imperial geopolitics and humanist knowledge gathering in this region. These are: Trespassers on the Roof of the 49 World, Setting the East Ablaze, Foreign Devils on the Silk Road, Questfor Kim, and Like Hidden Fire.16 Reading these books not entirely against their grain, I would like to expli- cate the question "Why Afghanistan?" through Louis Althusser's invocation of the Leninist theme of "the weakest link": "A chain is as strong as its weakest link."17 In the aftermath of the October revolution, Lenin attempted to theo- rize its inexplicable early triumph by asking the question "Why Russia?" Lenin calculated that the overwhelming contradictions articulated in Russian society, the overlap of advanced industrialism in the cities and exacerbated feudalism in the rural areas, the crepuscular "ignorance" of the peasantry, and the enlightened cosmopolitanism of its exiled political elites derived as much from internal determinants as from its external relationship with regard to the other imperialist states. Given the particular stage of global his- tory in the aftermath of the war, "Russia was the weakest link in the chain of the imperialist states."18 While it is these contradictions that fuel the rev- olution, in its aftermath it became clear that the bourgeois revolution could not be coincided with the peasant revolution. It goes without saying there- fore that Stalin sought to sew up these maximized contradictions through the vision of a bourgeois "Communist Party that was a chain without weak links."19 The contradictions were erased rather than worked through. With this frame in mind, I would like to suggest Afghanistan's status as a "weak link" in the chain of colonized states. Its locus is defined by maximum overdetermination in the context of Eurocentric imperialist geopolitics and maximum undermining of the project of Eurocentric modernity. Suspended in the cusp, the no-man's-land and buffer state between two superpowers, it was therefore the global nonplace that not only was not colonized, but could not be colonized.20 The global "balance of powers" figures the national ter- ritory of Afghanistan as absence-the Taliban's effort to secure national integrity is therefore as much a Stalinist eradication of weak links as an instance of theocratic oligarchy. In September 1996 one of the first acts of retribution by the Taliban after the conquest of Kabul was the execution of Najibullah, former head of the genocidal secret service agency Khad, and Communist president during the Soviet era. Before he was dragged out from the U.N. compound, where he had sought refuge after the defeat of his government by U.S.-backed Islamist rebels in 1992, Najibullah had told U.N. officials that he was translating Peter Hopkirk's The Great Game into Pashto.21 This last ditch, and failed, attempt to institute for Afghans the narrative of the overdetermination of Afghanistan's modern history exemplifies its failed nationalism. I have tangentially indicated earlier that it became the lot of the great anticolonialist nationalisms to undo the imperialist legacy of neofeudalism 50 Grey Room 07 and transcendentalist religion in the colony. In Western Europe, the vaunted "democratic" revolutions of the modern era-the nominal accession of the representative population of the nation-state into political rights-could only proceed as a stage-bound maneuver. At each stage a newly emergent class gaining access to political representation prepared the ground for the next, so that the classes below the current dispensation could only enter this ambit to the extent that they acceded to the key ideological motifs of the rul- ing class. It must be pointed out that the great decolonization struggles-in the Third World, in their embrace of the nation-state as liberative instru- ment-set out to achieve this historical transformation at the single stroke of an hour. This caprice presaged their failure-both from within and without. In today's neocolonial context, Afghanistan is not the only place in the world where this project can be said to be failing.22 If the bourgeois-communist Najibullah waited for his death by unsuc- cessfully attempting to forge a nationalist, therefore modern, historiography, Sher Ali's wait for death marks the failed relationship to modernity in a slightly different way. As a Pashtun, Sher Ali's linguistic-ethnic matrix is split between imperial extraterritoriality (Afghanistan) and the terra firma of British justice (NWFP). It is here that his case can be seen to approxi- mate the differend between neofeudalism and the enlightenment subject. In his dying confession, Sher Ali stated that the slaying of a hereditary foe was no crime in his eyes. In spite of this disavowal of culpability, however, he preferred to be executed rather than be transported and kept alive. Operative in this is a robust sense of submission to justice, even when jus- tice is delivered through the law of the other. On the other hand, the British magistrate's decision to transport him cannot be seen as anything less than a humane act. Embedded in this act is the exemplary tolerance of British liberal humanism toward the nuances of customary and common law. And yet, for Sher Ali, the core of the injustice lies in the decision to keep him alive rather than kill him. On the level of singular acts of justice, this asymp- tote epitomizes the differend-the honorability of either side cannot be doubted at the level of singular intention. Two systems of justice seek to compete not by undoing but by outdoing the other. However, in his next crime, the murder of the Viceroy, Sher Ali puts this very singularity, and therefore this presumed honorability of intent, into question. European liberal humanism could unfold as a global ethic only under the cocked rifle hammer of British imperialism. Sher Ali's lunge with the knife undoes this coerced complicity-it is here that his revolt becomes systemic, the unraveling of a protocol of power, rather than merely an intu- itive opposition. It is important to note here that Islam acts as customary constraint rather than messianic injunction. Dua nfinite Justice: An Architectural Coda 51 This reading is further intensified by his response to a telegram sent by Mayo's children on the eve of his execution. On hearing their message, "May God forgive you," Ali became enraged, saying that if they had sent a message ordering him to be cut to pieces he would have been glad, but a prayer for God's forgiveness he could not accept from them.23 I grant you the right to punish, but not the right to forgive. I accept your law, but not your justice. It is because the origins of modernity in the colony are inexplicably tied up with the ends of imperialism that its outlines operate as a historical tele- ology in reverse: first the institution of the neofeudal-capitalist/disciplinary apparatus (even within the postcolonial "independent" state), while the "enlightenment" of the native is a project that can be deferred endlessly. But the assassin or the insurgent are more functions of discursive difference- the activators of the differend-than they are representations of a "non- modern" native will or symptoms of some "other" manner of being. It is the teleology of imperial discourse itself that is unraveled by the assassin. Sher Ali's action produces a crisis at the geopolitical level. At the same time his narrative singularity can neither be embraced by statist historiog- raphy (whether imperialist or Third World nationalist) nor can it be approx- imated to modes of collective "political" insurgency. Sher Ali's ethical trajectory is in the great apocalyptic master narratives of modernity, but not ofthem. Within the province of law, Lyotard points out that the "humanist" assumption of innocence on the part of the accused primarily benefited hegemonic power, since its victims could never formulate their testimony into a cognizable "phrase."24 Sher Ali's singular narrative cannot therefore be recognized by colonial power as full-fledged "political" consciousness. This is why in the first historiographic account we encounter of his story, Mayo's biography, his name is willfully written out: "Neither his name, nor that of his village or tribe, will find record in this book."25 The early Subaltern Studies collective in India read the colonial archive to tease out precisely such irruptions in its textual protocols. In the colonial records of anticolonial insurgency, subalternist historians saw these insurgencies as necessarily failing (since colonial power could always muster enough force to stamp them out physically) and yet leaving their trace as a crisis in the textuality of colonial historiography.26 Sher Ali's plea inviting his own execution reveals death itself as the keeper of the differend. If I cannot live according to my norms in your (triumphal- ist) juridical frame, then let me die so that the norm can be preserved. Bury the differend so that it can be mourned "properly." Do not rationalize it away and leave it to fester as the province of the irrational. Humanistic justice, willfully noncognizant of its complicity with imperialism, cannot honor this plea as a desire for modernity, a plea for accession to a universal justice, a 52 justice that could also be the name for a modernity yet to come-a moder- nity and a justice that the Christianized pax imperialis can never bear. Unlike Western Europe, internal revolutions-the necessary "working through" that leads the ancestors to their proper burial-continue to be interdicted across the (neo)colonial world. The differend must invoke other forms to win recognition. 53 Notes This paper has benefited immensely from my conversations with Kryzstof Wodiczko. I am grateful for his input. 1. Jean-Francois Lyotard, The Differend: Phrases in Dispute (Minneapolis: University of Minnesota Press, 1988), xi. 2. Colloquial expression for "Lord Sahib," the administration's own vernacularist term for the viceregal position. 3. The politics of religion in British colonial sociology was yet to unfurl in its formal dimensions. 4. William Wilson Hunter, Rulers of India: The Earl of Mayo (London: Oxford Clarendon Press, 1891), 198. 5. Mayo himself had served as Chief Secretary for Ireland back in Britain, the experience from which was considered a positive attribute in being appointed Viceroy of India. 6. See John Stuart Mill's comments on the subject in Mill, Writings on India, Vol. XXX of the Collected Works (Toronto: University of Toronto Press, 1990), 116. 7. See Arindam Dutta, Designing the Present: The Cole Circle and the Architecture of (an) Imperial Bureaucracy (Ph.D. diss., Princeton University, 2001). 8. See Dutta, ch. 5, "Peasants in the Architecture: Event and the Politics of Representation." 9. Rudyard Kipling, Kim (New York: Penguin Books, 1997). 10. See Tapati Guha-Thakurta, "The Museumised Relic: Archaeology and the First Museum of Colonial India," The Indian Economic and Social History Review 34, no. 1: 21-51. My account of the politics of the Archaeological Survey of India derives substantially from her analysis. 11. Developing from its own roots in a monarchical system, British colonialist historiog- raphy (as opposed to French, for example) developed an account of India's past as riven by internecine conflict between feudal and kingly states, alternating with periods of stability and prosperity realized only at periods of comprehensive imperial consolidation. Two such sanctified periods, the widespread empires of the Hindu (and later Buddhist) king Ashoka and the Mughal emperor Akbar, thus reflected not only what the British saw as the two prin- cipal religious constituencies in their Indian empire, but also seemed to presage the institu- tion of Victoria as Empress of India in 1877. 12. I thought of Hurree Babu as we saw the recent televised images of the Northern Alliance, ridiculously costumed in jungle warfare fatigues in a patently arid and desert landscape. After the fall of Kabul, news reports reach us of these mimic soldiers dragging women out of their houses and ripping off their burqas in front of Western cameramen and journalists, thus claiming to have "liberated" them. 13. Albert Memmi notes this with not little consternation in the aftermath of the Algerian revolution. Albert Memmi, The Colonizer and the Colonized (Boston: Beacon Press, 1965), 133. 14. Mike Mason, Development and Disorder: A History of the Third World since 1945 (Hanover: University Press of New England, 1997), 31. 15. That starvation-based genocide across the world under British imperialism was an unintended effect of its economic policies made it no less a planned event. See Mike Davis, Late Victorian Holocausts: El Nino Famines and the Making of the Third World (London: Verso, 2001). 16. Peter Hopkirk, The Great Game: On Secret Service in High Asia (Oxford: Oxford University Press, 1991); Foreign Devils on the Silk Road: The Search for the Lost Trea.sures 54 Grey Room 07 of Central Asia (Oxford: Oxford University Press, 1980); Trespassers on the Roof of the World: The Race for Lhasa (Oxford: Oxford University Press, 1982); Setting the East Ablaze: On Secret Service in BolshevikAsia (Oxford: Oxford University Press, 1984); Questfor Kim: In Search of Kipling's Great Game (Ann Arbor: University of Michigan Press, 1996); and Like Hidden Fire: The Plot to Bring Down the British Empire (New York: Kodansha International, 1997). 17. Louis Althusser, "Contradiction and Overdetermination," in For Marx, trans. Ben Brewster (London: Verso, 1969). 18. Althusser, 97. 19. Althusser, 98. 20. The Balkan states play out a comparable thematic on the European side-except that their proximities to the countries of the Enlightenment locate them within the crisis of "Europe" as cosmopolitan superstate. 21. New York Times, 6 October 1996. "Afghanistan Reels Back into View," cited in Gayatri Chakravorty Spivak, "Foucault and Najibullah," in OtherAsias (Oxford: Blackwell, forthcoming). 22. The Indian economist Prabhat Patnaik's work on the fiscal legacies of the older terri- torial imperialism in today's decentralized neocolonialism, and their relationship to the resurgence of antidemocratic authoritarianism in the South, is illuminating here, especially in the context of macroeconomic "conditionalities" imposed by the World Bank/International Monetary Fund/WTO triad. Prabhat Patnaik, "Whatever Happened to Imperialism?" in Whatever Happened to Imperialism and Other Essays (New Delhi: Tulika Press, 1995), 209-210. 23. George Pottinger, Mayo: Disraeli's Viceroy (Salisbury: Michael Russell, 1990), 188. 24. When sufficiently challenged, hegemonic power can transform itself into despotic power and suspend this assumption of innocence-vengeance can overrule other principles of justice. 25. W.W. Hunter: A Life of the Earl of Mayo, Vol. II (London: Smith, Elder and Co., 1876), 366. 26. See Ranajit Guha, "The Prose of Counter-Insurgency," in Subaltern Studies II: Writings on South Asian History and Society (New Delhi: Oxford University Press, 1983), 1-42. Dutta I Infinite Justice: An Architectural Coda 55 Article Contents p. 41 p. 40 p. 42 p. 43 p. 44 p. 45 p. 46 p. 47 p. 48 p. 49 p. 50 p. 51 p. 52 p. 53 p. 54 p. 55 Issue Table of Contents Grey Room, No. 7, On 9/11 (Spring, 2002), pp. 1-158 Front Matter [pp. 1-5] The Editors [pp. 6-7] Twin Memories: Afterimages of Nine/Eleven [pp. 8-13] War, Terrorism, and Spectacle, or: On Towers and Caves [pp. 14-23] Terrorism, Feminism, Sisters, and Twins: Building Relations in the Wake of the World Trade Center Attacks [pp. 24-39] Infinite Justice: An Architectural Coda [pp. 40-55] Explanation and Exoneration, or What We Can Hear [pp. 56-67] The Language of Damage [pp. 68-71] Dangerous Fragments [pp. 72-81] A City Transformed: Designing 'Defensible Space' [pp. 82-85] Divided Responsibilities: Minoru Yamasaki, Architectural Authorship, and the World Trade Center [pp. 86-95] Around Ground Zero [pp. 96-101] City Square: Structural Engineering, Democracy and Architecture [pp. 102-105] Enduring Innocence [pp. 106-113] One or More [pp. 114-123] Building Global Modernisms [pp. 124-134] Editor's Note [p. 135] "Welcome to Crisis!": Notes for a Pictorial History of the Pictorial Histories of the Arab Israeli War of June 1967 [pp. 136-158] Back Matter 
work_dvsmveuqovdljicvwpqrevd72e	----	POLIS. Volume 15. Issues 1 and 2, 1998 SOCIAL JUSTICE IN PLATO�S REPUBLIC Robert Heinaman In two papers on the Republic1 Gregory Vlastos argued that, insofar as it con- cerns the distribution of goods or �the allocation of substantive rights,�2 social justice was determined for Plato by �the Principle of Functional Reciprocity�: (FR) All members of the polis have equal right to those and only those benefits which are required for the optimal performance of their function in the polis.3 As everyone knows, Plato�s ideal state divides into three classes � produc- ers, auxiliaries and guardians � which perform different roles to promote the city�s wellbeing. Producers furnish the material necessities of life, auxiliaries form an army to protect the city from external and internal enemies, and guardians rule. According to FR, one�s rights are determined by the class to which one is assigned and by one�s specific task within that class: provided that one actually performs one�s function or work,4 one receives whatever 1 �The Theory of Social Justice in the Polis in Plato�s Republic�, Studies in Greek Philosophy II (Princeton, 1995), pp. 69�103; originally printed in Helen North, ed., Interpretations of Plato (Leiden, 1977) (Mnemosyne, Suppl. vol. 50), pp. 1�40; �The Rights of Persons in Plato�s Conception of the Foundation of Justice�, Studies in Greek Philosophy II, pp. 104�25; originally published in H. Tristram Englehardt, Jr., and Daniel Callahan, eds., Morals, Science and Society (Hastings-on-Hudson, N.Y., 1978), pp. 172�201. All page references are to the articles as published in Studies in Greek Philosophy II. 2 �Social Justice�, p. 86. 3 �Rights of Persons�, p. 110. 4 �Rights of Persons�, pp. 112, 123. In FR �one�s work� refers solely to one�s spe- cific task or role, such as shoemaking or cobbling. But Vlastos allows that the phrase can also refer to the entire range of public and private obligations governing one�s conduct, and many of these obligations are not tied to one specific job such as shoe- making (�Social Justice�, p. 79): �this �single service in the polis� [�doing one�s own�], though vocationally based, is not meant to be restricted to on-the-job activity but to extend over the whole of one�s conduct in the polis, private no less than public.� Vlastos is correct to recognize this broad use of �doing one�s own�, and hence of �justice.� (See, for example, 441d�e and 443a). But he does not appear to realize that this recognition conflicts with his previously argued claim that in the Republic δικαιοσβνη is restricted to the narrow use of the term (�Social Justice�, pp. 73�78). If justice is �doing one�s work� and �one�s work� refers to �the whole of one�s conduct 24 R. HEINAMAN goods one needs in order to carry out one�s job. One receives no other goods and, in particular, one is denied anything that might damage one�s ability to perform one�s job as well as possible. At the same time, Vlastos argued against the view that social justice in the Republic is based on proportional equality, the account of justice which in ancient times was set out most fully by Aristotle. According to proportional equality,5 justice exists when goods are distributed to people in proportion to their merit or desert (¢x�a). In the simplest case involving two people � A and B � justice exists when the ratio of the value of the good assigned to A to the value of the good assigned to B equals the ratio of the merit of A to the merit of B � The merit of A The value of the goods assigned to A ------------------- = --------------------------------------------- The merit of B The value of the good assigned to B. Clearly, this idea of proportional equality is very general and loose, and as stated so far it is compatible with all sorts of views about distributive justice, depending on how we identify the goods to be distributed, their value, and the merit of the people who receive them. Thus, when Aristotle discusses the just distribution of political power, he refers to disagreements about what the relevant merit is which validates its possession.6 Democrats maintain that what determines a person�s merit is being a free citizen, and therefore, since all free citizens equally share this merit, all deserve an equal amount of po- litical power. Since all free citizens cannot occupy political office at the same time, office holding is settled by lot. Oligarchs, on the other hand, maintain that political power should be distributed on the basis of the possession of a certain degree of wealth, while aristocrats maintain that it is virtue which warrants the possession of political power.7 According to Vlastos, when considering the Republic�s account of politi- cal justice we should forget all about proportional equality.8 I believe that this is a mistake and that proportional equality plays an important role in the Re- in the polis�, then this must be justice in the broad use which is identical with virtue as a whole. 5 For a good exposition of Aristotle�s position, see D. Keyt, �Aristotle�s Theory of Distributive Justice�, in D. Keyt and F. Miller, Jr. (eds.), A Companion to Aristotle's Politics (Oxford, 1991), pp. 240�47. 6 NE 1131a24�29; cf. Pol. 1280a18�19, 1282b14�23. Aristotle also claims that people agree about the value of the goods distributed (Pol. 1280a18�19). 7Cf. Rep. 549a, 550c�d 551a�b, 557a, 558c, 562b�c. 8 �Social Justice�, p. 89. SOCIAL JUSTICE IN PLATO�S REPUBLIC 25 public�s account of social justice.9 The first part of my paper will try to show that Vlastos� arguments against so interpreting the Republic are not convinc- ing. I do not claim that Vlastos is wrong to think that a principle along the lines of FR plays an important role in the Republic. Rather, I believe that Vlastos failed to see how easily the idea behind his principle could be ab- sorbed by the notion of proportional equality. Furthermore, while this idea behind FR plays a significant part in Plato�s account of justice, it is insuffi- cient as a full account of social justice in the Republic because, as I will argue in the second part of the paper, there are several important decisions which Plato makes about the distribution of goods which FR cannot explain. On the other hand, these decisions can be explained on the basis of proportional equality. I Vlastos� position is based on the contention that Plato makes certain choices about the distribution of goods in the city which conflict with the distribution required by proportional equality. He makes four points which I will consider in turn. (1) Vlastos says that, apart from the distribution of honour, �Platonic jus- tice would flout �proportional� equality . . . � by giving less of some of the major means of happiness to those who give the polis more�.10 By �the major means of happiness� Vlastos means a normal sexual and family life, and pri- vate property. These are denied the guardians � �those who give the polis more� � on the grounds that such goods would undermine the guardians� ability to rule the city properly. Here Vlastos takes the fact that the guardians do not get certain goods to show that they are not distributed on the basis of proportional equality. Therefore, he must be assuming that the guardians would merit or deserve these goods according to proportional equality. And so he is assuming that 9 Vlastos (�Social Justice�, p. 87, n. 84) refers to the following authors as holding that proportional equality is upheld in the Republic: E. Barker, Greek Political Theory (New York, 1951), p. 139, n. 2; K. Bringmann, Studien zu den politischen Ideen des Isokrates (Hypomnemata, no. 14, 1965), p. 86; R. Maurer, Platons �Staat� und die Demokratie (Berlin, 1970), p. 75f. I have not been able to obtain Bringmann�s book. See also E. Barker, The Political Thought of Plato and Aristotle (New York, 1959), p. 20, n. 1; J. Derbalov, �Ursprungsmotive und Prinzipien der Platonischen Staatsden- kens�, Kantstudien, 55 (1964), pp. 274�76, 290. Cf. also M.B. Foster, �On Plato�s Conception of Justice in the Republic�, Philosophical Quarterly, 1 (1951/52), p. 209. 10 �Social Justice�, pp. 88�89. There is some unclarity about what Vlastos believes determines merit according to proportional equality. In the passage under discussion he assumes that proportional equality would say that one merits or deserves goods in proportion to one�s degree of contribution to the good of the city. But he also assumes that it would say that the basis for deciding one�s merit is one�s degree of virtue (p. 89). 26 R. HEINAMAN proportional equality is committed to the following: what one deserves is de- termined by what contribution one makes to the wellbeing of the city, and what one�s contribution to the wellbeing of the city entitles one to is all so- cially distributable goods in proportion to the scale of one�s contributions. One problem here is Vlastos� assumption that Plato regards the items in question as among �the major means of happiness.� Plato, of all people, does not set a high value on possessions;11 nor does the Republic12 or the Sympo- sium suggest that he regards a family or sexual relations as among �the major means of happiness.� In his opinion, the guardians are given the best life pos- sible, and the belief that the items in question are necessary for happiness is dismissed as �a foolish adolescent opinion about happiness� (Republic 465d- 466b). Since Plato rejects Vlastos� assumption, even if proportional equality said that �the major means of happiness� should be distributed in proportion to people�s contribution to the wellbeing of the city, it would not imply that the guardians should receive more of the goods in question than anyone else. So the fact that Plato does not allow such items to be distributed to the guardians would not show that distributive justice in the Republic is not de- termined by proportional equality. More seriously, Vlastos� argument rests on a misunderstanding of the idea of proportional equality, for that idea can easily assimilate the point behind FR and explain Plato�s decision about the distribution of the goods which Vlastos says are among �the major means of happiness�. Proportional equality does not say that people should receive all goods to that degree which matches their degree of virtue. Nor does it say that people should receive all goods to that degree which matches their contribution to the city�s wellbeing. Proportional equality can allow that �what people merit� will be determined by different factors in different cases, depending on what good is being distributed and for what purpose. There is no reason why the question of how the possession of a good would affect one�s ability to per- form one�s function may not be among the considerations which determine what one merits when certain goods are distributed. Thus, in the Laws (744b- c), where justice is explained in terms of proportional equality (756e-758a), Plato points out that it is not virtue alone which determines the merit (¢x�a) that grounds the distribution of burdens and benefits according to propor- tional equality. Vlastos seems to be making a mistake which Aristotle criticizes when ex- plaining his view of social justice, viz. the mistake that results when people think that if they are equal (or unequal) in one respect, they are equal (or un- equal) in all.13 Aristotle discusses an example where the question is how to distribute justly a limited number of flutes. He does not think that the flutes should be distributed to those who have the greatest virtue of character or to 11 Cf. Rep. 485d�e, 491c, 493d, 495a, 547b, 559b�c. 12 Rep. 395d�e, 402e�403c, 485d�e. 13 Pol. 1280a21�25; cf. 1282b18�30, 1283a26�27, and Rep. 551b�d. SOCIAL JUSTICE IN PLATO�S REPUBLIC 27 those who have contributed most to the wellbeing of the polis, or to those who are better born or more beautiful. Among fluteplayers who are equal in the art we should not give the prefer- ence of flutes to the more nobly born, because they will not play any better. We should give the superiority in instruments to him who is superior at the work (�rgon) . . . If someone excelled at playing the flute, but was very in- ferior in birth or beauty, then, even if each of these is a greater good than fluteplaying (I mean birth and beauty), and even if their superiority to fluteplaying is proportionately greater than his superiority as a fluteplayer, still he should be given the outstanding flutes. For their superiority must contribute to the work (�rgon); but superiority in wealth and birth contrib- ute nothing.14 For Aristotle, proportional equality maintains that what determines merit in specific cases will depend on what good is being distributed, and on the pur- pose for the sake of which it is being distributed.15 So if flutes are being distributed for the purpose of organizing an orchestra to play music as well as possible, then merit is determined by flute playing skill, by who can do the work that accomplishes the end in view. As far as the distribution of this good for this purpose goes, it does not matter how virtuous or vicious those with flute playing skill may be. Plato makes a similar point in the Republic (453d�455a) when he is con- sidering how to distribute functions or tasks, and starts to justify his belief that women should be assigned the same jobs as men. Earlier,16 Socrates had said that for justice to be realized in the city, people with different natures (ϕÚσεις) should be assigned different functions: justice will be realized when people do their own work according to nature (453b). Since men and women differ in nature, the proposal for women to be given the same jobs as men might appear to contradict the earlier rule on the assignment of tasks. Plato now points out that the contradiction is only apparent. In saying that different natures should be assigned different jobs, he did not mean that if our present 14 Pol. 1282b33�1283a3. Richard Robinson�s translation. 15 Cf. Pol. 1280a25�36, and III.9 as a whole, where the determination of political justice rests on determining what a polis is, which depends on determining the end of the polis. According to Aristotle, it is the fact that what determines merit depends on the purpose of the community in question which is �the main point� (1280a25) missed by those who think that if they are equal in one respect they are equal in all, and by those who think that if they are unequal in one respect they are unequal in all (1280a16�24). As NE 1160a8�25 shows, the purpose is closely tied to the kind of association (koinwn�a) between people that is in question. And in at least many cases, what people merit depends on what relations exist between the associated parties. For example, in the association of a father with a son, or a husband with a wife, �the justice . . . that exists between persons so related is not the same on both sides but is in every case proportional to merit� (NE 1161a21�22; cf. IX.2). 16 Rep. 412b�415b. 28 R. HEINAMAN day shoemakers are bald-headed, then hairy men should be banned from shoemaking on the grounds that they differ in nature. Although they do, in a way, differ in nature, it is not a difference that is relevant to the question of who should be a shoemaker. People are alike and different in various respects, and in assigning jobs we must specify what difference in nature is relevant. This is done, Plato says, by making it clear what it is with reference to which natures are to be distin- guished; and this determining factor is the task to be performed.17 If we must look to the purpose for the sake of which an item is being distributed, then just as beauty is irrelevant in deciding who should be given flutes, so degree of hairiness is irrelevant in deciding who ought to be a shoemaker or a sol- dier. The items in question should be distributed to those with the relevant ability for performing the task in question. Since difference in sex does not necessarily affect the capacity to perform the jobs to be done in the city, i.e. does not affect one�s �nature� in the relevant sense, women will often merit the same jobs as men.18 The view that the just distribution of goods to people depends on the �na- tures� of the recipients is repeated in the Laws (757c), where Plato explicitly defends the view that political justice is based on proportional equality.19 He explains that proportional equality involves granting �more to the greater per- son and less to the lesser person, adjusting what you give to take account of the nature of each�(tù men g¦r me�zoni ple�w, tù d/ �l£ttonismikrÒterÒtera n�mei m�tria didoàsa prÕj t¾n aÙtîn fÚsin �kat�rw) and that what �nature� is relevant depends on the kind of good being distributed.20 The idea of what one deserves or merits is very elastic, and one can adopt the idea of proportional equality while at the same time maintaining that all sorts of factors determine merit or worth in different cases. If prizes in a race are awarded, then merit is determined by swiftness.21 Or suppose people have associated in a business with different individuals contributing different amounts to the original investment.22 Other things being equal, profits are 17 πρÕj ti te�non(454b7); πρÕj aÙt¦ te�non t¦ �pithdeÚmata (454d1); πρÕj t�cnhtin¦ ½ ¥llo �pit»deuma (454d8; cf. 455a1). Cf. Aristotle�s reference to the �rgon in the pas- sage quoted above; and Plato�s reference to �rga which, he goes on to argue, the nature of a woman allows her to achieve in common with men (453a2). In so far as their natures are alike, it is fitting (pros»kei) to assign them the same task (�rgon) (453b10). � Note that, in these texts, ��rgon� refers to the task or job one is assigned, and this does not necessarily coincide with the end with regard to which it is decided what natures are appropriately assigned a specific job. But a distinction between work and its goal does not play any explicit role in Plato�s argument. 18 Cf. Laws 715b�c, and R. Maurer, Platons �Staat� und die Demokratie, pp. 75� 76. 19 Laws 756e�758a. 20 Laws 696a�b. 21 Pol. 1283a11�14. 22 EE 1242b11�15. Cf. Pol. 1280a25�31, Rep. 333a�b. SOCIAL JUSTICE IN PLATO�S REPUBLIC 29 distributed justly when they are distributed proportionately to the original sum invested, so that those who invested more get more in return, and those who invested less get less in return. Here again, the virtue or vice of the peo- ple involved is irrelevant to determining what counts as a just distribution of money. What determines one�s merit is the relative size of one�s original in- vestment. So it is easy to see how the idea of proportional equality can be made con- sistent with Plato�s decision about the distribution of the items Vlastos referred to in his argument. When the basic structure of the city is being de- cided, and the goods distributed to the members of the ideal polis are the rights to a normal sexual life and family life, and the right to own private property, then the goal with regard to which we decide what is just will be the overriding aim of the distribution of all goods in the city � the wellbeing of the city as a whole, which requires that the essential tasks in the city be per- formed as well as possible. With this goal in mind, one will merit what one needs to make one�s greatest contribution to the wellbeing of the city in the performance of one�s function, and one will not deserve any item which would threaten one�s ability to thus contribute to the wellbeing of the city. Since Plato believes that the items mentioned by Vlastos would harm the guardians� ability to rule, they are denied those goods � they do not merit them. In other words, the idea of proportional equality can absorb Vlastos� idea and say that, for the distribution of many goods, what one deserves at least partly depends on how the possession of that good affects one�s ability to do one�s job in contributing to the city�s wellbeing.23 (2) What I have just said also provides part of the answer to Vlastos� first objection to proportional equality in �Rights of Persons.�24 Consider, he says, a flutemaker in Plato�s ideal city with the skill to become much richer than other members of the producing class while working far less. FR explains why Plato would not allow the flutemaker to get away with this � having more money, property and leisure than others would not enable him to do his job any better, so he will not be allowed to have them. On the other hand, Vlastos claims, proportional equality will not explain Plato�s decision: �why shouldn�t the flutemaker claim that the merit of his superior talent is so much greater than [the talent] of mere shoemakers and the like that it entitles him to vastly greater social benefits?�25 So, according to Vlastos, FR explains why 23 Vlastos� second argument in �Rights of Persons� (pp. 117�18) is basically the same as the argument just considered, differing only in that the latter argument as- sumed that proportional equality positively demands that the guardians be given the goods which Plato denies them, while the argument in �Rights of Persons� merely claims that nothing in the idea of proportional equality can explain why Plato denies the guardians private property and a family. 24 �Rights of Persons�, p. 115. 25 Ibid. 30 R. HEINAMAN Plato rules out inequalities of a sort which proportional equality would toler- ate. The reply is that Plato can allow that in laying down a general policy for how much accumulation of wealth is to be permitted, and on how much ine- quality of wealth may exist, the effect of these factors on the ability of people to perform their work must be taken into account in deciding what people de- serve.26 Since, Plato believes, excessive wealth and leisure would render the flutemaker unfit to perform his function, he will not merit these goods and will not receive them. Thus in the Laws,27 we find that Plato appeals to pro- portional equality in ruling that neither poverty nor excessive wealth should be allowed in the city whose constitution is being devised. Later I will argue that Plato�s second argument for his account of social justice shows that FR is unable to handle the Republic�s position concerning private property. (3) In the guardian class, Plato thought that women should be treated in the same way as men. They would have the same rights to education, work, social intercourse, and the same sexual, legal and political rights as men. Ac- cording to Vlastos, Plato�s position is based on FR: �membership in the guardian class should be as open to women as to men . . . on the ground that biological femaleness is irrelevant for good performance in any recognized work role.�28 On the other hand, we can see, Vlastos says, that proportional equality will not yield these results by considering the Laws (756e�758a), where jus- tice is determined by proportional equality, and women no longer have the same legal, political or vocational rights which Plato granted them in the Re- public. How exactly Plato would have thought that the justice of these inequalities is validated by PE is unclear. What is clear is that this principle is so vague and loose that it can offer no resistance to them, while if FR were being applied it would have ruled them out as firmly here [in the Laws] as previ- ously in the R[epublic].29 There are four points to be made in response to this argument. First, I have already explained how the Republic�s defence of its treatment of women is very close in thought and language both to Aristotle�s account of justice in terms of proportional equality, and to the Laws� account of political justice in terms of proportional equality. Secondly, Vlastos� characterization of the position of women in the Laws is quite misleading. To support it, he refers to Glenn Morrow�s book, Plato�s Cretan City. But Morrow correctly points out that, in the Laws, �Women are 26 Rep. 421c�422a. 27 Laws 744a�745b. 28 �Rights of Persons�, p. 117. 29 Ibid. SOCIAL JUSTICE IN PLATO�S REPUBLIC 31 to share with men, to the greatest extent possible, in all the activities and du- ties of the state.�30 Thirdly, even setting aside these points, Vlastos would only have suc- ceeded in indicating that social justice is not exhausted by the idea of proportional equality. But that is clear in any case. As we have seen, the be- lief in proportional equality does not by itself determine what the goods are whose distribution is to be governed by proportional equality. Nor does it specify what factors are to be taken into consideration in determining the merit or worth of the people who are to receive the goods. Even if Vlastos� view of the position of women in the Laws were correct, Plato could have ac- cepted proportional equality in both the Republic and the Laws while changing his mind between the two dialogues on the question of what women merit � just as, between the two dialogues, he changed his mind on the ques- tion of what kind of political power philosophers merit.31 Finally, this objection can be thrown back at Vlastos, for FR fails to ex- plain why anyone, male or female, is given power in Plato�s ideal city. This will be explained in the second half of the paper. (See (7) in section II). (4) A final point which Vlastos makes is this: Nor is it clear how P[roportional] E[quality] could have sustained the sense of affectionate partnership between the powerful elite and the powerless mass which Plato is counting on to provide the morale of the just society . . . Fraternal solidarity is what he has in view, affection generated in a work- ing relationship where the sense of interdependence is heightened to the nth degree as each of the partners feels that his own work gets the benefit of the best that the others have it in them to give. It is the FR principle that provides the basis for the emotional unity of the class-stratified Platonic polis.32 This is a strange argument, for it seems clear that on this question FR ex- plains nothing and proportional equality is the relevant consideration. According to FR, �all members of the polis have equal right to those and only those benefits which are required for the optimal performance of their func- tion in the polis.�33 So if the Republic�s principle of distributive justice 30 G. Morrow, Plato�s Cretan City (Princeton, 1960), p. 331. See Laws 781b, 785b, 805a, c�d, 806c. This does not mean that the position of women is in all re- spects equivalent to that of men. See, for example, 937a. 31 See Laws 713c, 875a�d and 691c�d: If we disregard due proportion (tÕ m�trion) by giving anything what is too much for it, too much canvas to a boat, too much nutriment to a body, too much authority to a soul, the consequence is always shipwreck ... [I]ts issue is injustice ... No soul of man while young or accountable to no control, will ever be able to bear the burden of supreme power among men without tak- ing the taint of the worst spiritual disease, folly ... Hence it calls for a great legislator to forestall this danger by his insight into due proportion. 32 �Rights of Persons�, pp. 118�19. 33 �Rights of Persons�, p. 110. 32 R. HEINAMAN applies to the amount of love which citizens are entitled to, then FR yields the result that one is only entitled to that amount of affection from other members of the polis which is required to enable one to perform one�s job as well as possible. But it is extremely implausible to suggest that a shoemaker or a farmer, or a soldier or a guardian for that matter, could not perform his or her job as well as possible without a certain amount of affection. In reply it might be said that one will be able to perform one�s job better the greater one�s degree of psychological contentment, and, other things be- ing equal, the more love one is given the greater one�s contentment. Hence, the amount of love one receives will affect one�s ability to do one�s job. But there is no evidence that Plato sees the matter in these terms, and if he had, then he would also have had to admit that this provides no justification for a guardian receiving more love than a farmer. Both would benefit equally with regard to their ability to do their work from the affection they receive. Indeed, if �one�s work� is understood to include all of one�s social obliga- tions, then it is quite plausible to suggest that the farmer would benefit more than the guardian since the latter�s motivation to fulfil his obligations should be much less dependent on such external factors. So, on the basis of FR, there would be no reason to love the city�s guardians any more than the city�s low- liest farmers, even if the guardian is an exemplar of virtue and wisdom while the farmer is at the bottom of Plato�s scale of virtue. Such a position cannot be seriously attributed to Plato. Rather, the Sympo- sium shows that if distributive justice is meant to apply to the degree of love one accords different objects, it will be determined by the same principle which Vlastos concedes34 will govern the distribution of honour35 in Plato�s ideal city: proportional equality. The enlightened Platonic lover loves good things in proportion to the degree which they deserve or merit, namely in proportion to the degree of beauty and goodness which they exemplify (Sym- posium 210a�212a; cf. Republic 402d, Laws 757a5�b7). In Plato�s city, ties of affection are supposed to unite a citizen to people from different classes as well as to others from his or her own class. If we assume that the Sympo- sium�s account holds in the Republic, then we can say that one should love people in proportion to their merit. When A and B are equal in merit, A and B should love one another to the same degree. When A is B�s superior, then A deserves more love from B in proportion to the degree in which A is supe- rior to B. So if A is twice as valuable as B, then B should love A twice as much as A loves B.36 34 �Social Justice�, p. 88. 35 Cf. Aristotle, NE 1159a16�17: �Being loved appears to be close to being hon- oured.� 36 Cf. Aristotle�s account of love between unequals in terms of proportionality: EE VII.3; 1241b32�40, 1242b6�15; NE 1158b27�33, 1159a34�b2, 1161a20�22, 1162a15�16, b2�4, 1163a24�b18. SOCIAL JUSTICE IN PLATO�S REPUBLIC 33 I conclude that Vlastos� objections to the view that proportional equality governs political justice in the Republic are unsuccessful.37 The next section will point out some serious difficulties for FR. II Both before and after the Republic, in the Gorgias (508a)38 and in the Laws (756e�758a; cf. 744b�d), Plato refers to proportional equality in explaining justice. So if Vlastos were right, Plato would have twice shifted his position on the issue of social justice being considered here. While not impossible, it is more likely that Plato�s view remained consistent from the Gorgias to the Laws. More seriously, Vlastos must also claim that Plato�s position shifts within the Republic itself, since he concedes that proportional equality deter- mines the Republic�s account of political justice on two important points.39 (1) As Vlastos concedes,40 the distribution of honour in the city is not governed by FR but by proportional equality. Honour may not strike us as a particularly important good for just distribution, but in the Laws (744c) Plato mentions it as one of the goods whose distribution should be governed by 37 At one point (�Social Justice�, p. 88) Vlastos speaks as though he considers an- other weakness of the proportional equality interpretation to lie in the fact that it only applies to socially distributable compensations, and hence cannot govern the greatest good which the guardians enjoy, the contemplation of Forms. Whether or not there is some way in which this good could be thought to be controlled by social justice in so far as the leisure of the guardians is so controlled, I do not see how the fact that a cer- tain account of social justice only applies to socially distributable goods could be considered an objection against it. Furthermore, if, for the above reason, the distribu- tion of this good is thought to be determined by political justice, proportional equality can handle it for the same reason that FR can. Vlastos would presumably say that, ac- cording to FR, the guardians deserve this good because it enables them to perform their work properly. But proportional equality can say exactly the same thing. 38 Cf. Statesman 257a�b; Epistle 7, 326d. As Morrow says (Plato�s Cretan City, p. 524, n. 10), it is presumably proportional equality that is in question in Diogenes Laertius� report (III, 23) that Plato refused to construct a constitution for the Megala- politans because they were unwilling to accept equality. 39 It is also interesting to note that the author of the Magna Moralia (1194a6�25) affirms that proportional equality governs political justice in the Republic. Some further minor support for the proportional equality interpretation is that Si- monides� account of justice � expressed by Socrates at 332c as giving to each what is due (tÕ prosÁkon) � is never repudiated (cf., for example, Rep. 444b4; 474c1). Plato concludes (335e) that �if ... anyone tells us that it is just to give everyone his due, and he means by this that from the just man harm is due to his enemies and benefit due to his friends � the man which says this is not wise, for it is not true.� Plato �does not suggest that the rejection of Polemarchus� attempted interpretations of the Simonidean view requires rejection of the view itself.� (T. Irwin, Plato�s Ethics (Oxford, 1995), pp. 173). �tÕ prosÁkon� is the term Isocrates used in explaining proportional equality in Areop. 21�22: �that which gives to each man his due (tÕ prosÁkon).� 40 �Social Justice�, p. 88. See Rep. 414a, 415a. Cf. 425b. 34 R. HEINAMAN proportional equality. Likewise, Aristotle considers honour one of the goods of immediate concern for distributive justice.41 FR fails to explain the Republic�s distribution of this good. What does FR say? �All members of the polis have equal right to those and only those bene- fits which are required for the optimal performance of their function in the polis.� So, according to FR, the guardians should be honoured only to the ex- tent required to enable them to perform their job as well as possible. But that would mean that the guardians should not be honoured at all, since they should be able to perform their task of ruling independently of how much honour they receive. However, Plato thinks that they deserve and should re- ceive more honour than anyone else, and after their death they should be honoured as divinities or godlike men.42 Receiving honours after death obvi- ously does not contribute anything to anyone�s ability to perform a certain task, so it is clear that FR does not explain why Plato thinks this distribution of goods is just. On the other hand, proportional equality explains why the guardians should be honoured so much more than anyone else. One should receive the good of being honoured in proportion to one�s merit, and since the guardians deserve this honour so much more than others43 they will re- ceive a proportionately greater amount of it. It is equally obvious that proportional equality, not FR, is needed to ex- plain why neglect of the gods is regarded as unjust (443a): such behaviour fails to accord the gods their due; it does not deprive the gods of what they need to promote the city�s wellbeing. (2) Plato criticizes democracy on the basis of the assumption that propor- tional equality is the proper account of social justice. In the Laws, when defending proportional equality as the proper account of justice, he says that �equal treatment of the unequal ends in inequality when not qualified by due proportion.�44 At Republic 558c Plato objects that democracy distributes �a kind of equality to equals and unequals alike.�45 In ancient Greek democra- cies, political offices were distributed by lot to all the citizens in a city irrespective of their abilities. This is pointed out at Republic 557a where it is said that, in a democracy, the ruling offices are distributed on an equal basis, given, for the most part, by lot.46 So when Plato objects that democracy dis- 41 EN 11130b2, 31. 42 Rep. 465d�e, 503a, 540b�c. Cf. 468e�469b. �They will be billionaires of honour in the Platonic state.� Vlastos, �Social Justice�, p. 88. 43 Why they deserve this honour is not completely clear. Vlastos thinks it will be based on their contribution to the city�s wellbeing. 540b�c suggests that it may be based on their outstanding virtue and intelligence. 44 Laws 757a2�4. A.E. Taylor�s translation. Cf. 757d4�5. 45 Cf. Rep. 453e, 454b, 456b5�6; Gorgias 483c5�6; Aristotle, NE 1131a24. 46 Cf. 561a�c and the contrast drawn in the Laws (757b�e) between proportional equality and choosing by lot. SOCIAL JUSTICE IN PLATO�S REPUBLIC 35 tributes a kind of equality to equals and unequals alike, he is saying that equal power (cf. 557a4) in the city is distributed to unequals, i.e. the same power is given to two people despite the fact that the one person may deserve it less than the other in virtue of possessing less ability to rule. He is saying that it is wrong to distribute the same amount of power both to those who de- serve it, those who have the ability to rule, and to those who do not deserve it, those who lack any ability to rule.47 The implication is that Plato believes that political offices should be dis- tributed on the basis of proportional equality, i.e. the degree of political power one gets should be proportional to one�s ability to use it properly. This underlies the question he asks in justification of assigning political power to women as well as men: (456b5�6): �Must not the same occupations be given to the same natures?� Proportional equality provides the basis for the distribu- tion of political offices in Plato�s ideal state.48 (3) Plato�s second argument for his definition of social justice in Book IV, 433e�434a, shows that his conception of justice applies to the right to posses- sion of specific items of private property which one has acquired by legitimate means. Proportional equality explains this while in many cases FR does not. When the guardians act as judges in lawsuits, Plato says, they will aim at justice, and what they will aim for is �that no one have what belongs to oth- Rep. 557�58 shows that F. David Harvey is wrong when he says that Laws 756e� 758a is probably the earliest text to make a connection between arithmetical equality and the lot, in �Two Kinds of Equality�, Classica et Mediaevalia 26 (1965), p. 112. 47 The word Aristotle standardly uses to refer to the quality of a person which de- termines what good they deserve is �¢x�a�, �merit� or �worth� (see, e.g., NE V.3). In Rep. 434a�b, in his third argument for his definition of political justice, Plato explains that real harm � injustice � occurs to the city when someone with only the ability of a soldier tries to become a guardian, ¢n£xioj õn ν. Cf. Laws 744b6. 48 Cf. Derbalov, �Ursprungsmotive und Prinzipien der Platonischen Staatsden- kens�, p. 274, n. 54 and 276. Vlastos (�Social Justice�, p. 87) notes that Republic 558c is regularly referred to in support of the idea that proportional equality is upheld in the Republic, and he himself maintained this position in ΙΣΟΝΟΜΙΑ ΠΟΛΙΤΙΚΗ (in Pla- tonic Studies (Princeton, 1973), pp. 193�94). �Social Justice� still admits that 558c must be understood in terms of proportional equality, but Vlastos now claims (p. 87) that Plato�s appeal to the idea is only �momentary.� Given Vlastos� admission that the Republic also distributes honour according to proportional equality, he is in the posi- tion of maintaining that Plato is committed to proportional equality both before and after the Republic, but rejects it in the Republic even though the Republic occasionally appeals to it in deciding questions about justice. Republic 557�58 shows that Vlastos is wrong to suggest that Plato�s avoidance of the word �to �sÒthj � in Book IV of the Republic indicates Plato�s rejection of both the idea of proportional equality and the idea of arithmetical equality (�Rights of Persons�, p. 114). 557�58 uses the word while defending proportional equality. 36 R. HEINAMAN ers, nor be deprived of what belongs to him.�49 Suppose that A steals some- thing from B. How can we justify the assertion that it would be just for B to be in possession of this property? FR says B has a right �to those and only those benefits which are required for the optimal performance of [his] func- tion in the polis.� But it is not going to be true in every case that B will not be able to do his job as well if his property is not returned to him. So according to FR, when one can do one�s job as well without one�s stolen property being returned, it will not be just for one to possess that property again. But Plato, who characterizes a just situation as one where people both do and have their own, describes the situation where a person has been robbed (for example) as a case in which someone is deprived of �his own,� and someone else has what is not his own but what is another�s (�csi t¢llÒtria).50 That is, for Plato, such a situation is unjust. If justice is people having �their own,� where this is a matter of people having what they merit or deserve, then we can explain how the example fits Plato�s definition of justice. For one may deserve and have a right to property one has acquired in a legitimate manner.51 49 Note that �justice� here characterizes the situation which the judges aim at, not their own action, as in Vlastos� rewriting of the argument (�Social Justice�, pp. 75� 76). Plato argues that (i) the judges will aim at a situation where no one has what be- longs to another or is deprived of his own because (ii) such a situation is just. From (i) and (ii) he concludes that the having and doing of one�s own is justice. Vlastos claims (p. 76, n. 32) that in the argument as presented the conclusion is �a wild non sequitur�, apparently because he does not see how doing one�s own can get into the conclusion from (i) and (ii). The alleged difficulty is removed by noting that the situa- tion described in (i), where �no one has what belongs to another�, can exist only if everyone does his own, and hence is not �a busybody� (oÙ polupragmone�), i.e. does not take what belongs to another (as Vlastos himself appears to point out in �Justice and Happiness in the Republic�, Platonic Studies , pp. 121�22). Vlastos� revision of the argument turns the example into one where the justice at issue is a matter of what Aristotle called rectificatory justice, i.e. a feature of the judge�s action which rectifies the (distributively) unjust situation where the robber has what is not his own. But in Plato�s example �justice� rather characterizes the distribu- tively just situation which the judge hopes to bring about. 50433e7. At Rep. 344a�b, injustice exists when �temple robbers, kidnappers, housebreakers, defrauders, and thieves� take �what belongs to others (t−llÒtria).� At 360b�d, laying �hands on what belongs to others (tîn t−llotr�wn)� is the description of unjust behaviour. 51 A similar argument can be given for other examples of unjust behaviour men- tioned by Plato at 443a: betrayal, breaking of oaths, adultery, neglect of parents (cf. 463c�d), failure to care for the gods. Even when these actions do not damage the vic- tims� ability to do their work, the situation may be unjust because they have not been given their due. Likewise, Plato clearly does not think that bringing false charges is unjust (565e) solely because it hinders the ability of the accused to do their work; or that the sole reason why it is unjust for a younger man to strike an older man (465a�b) is that it would make it more difficult for the older man to carry out his work. SOCIAL JUSTICE IN PLATO�S REPUBLIC 37 The connection between the situation Plato envisages and the idea of pro- portional equality is clear from Aristotle�s discussion of distributive justice in Nicomachean Ethics V. The case Plato is talking about is one where, before the situation is rectified, someone has what is not his own and another person has been deprived of what is his own. The person who has grasped what is not his own is guilty of taking more than his due, of pleonex�a In Nico- machean Ethics V.1 and 2, it is the contrast with this notion of pleonex�a that Aristotle uses to explain the idea of particular justice, i.e. distributive justice, as opposed to generic justice. And he then goes on to explain distributive jus- tice in Nicomachean Ethics V.3 in terms of proportional equality.52 (4) In 520a�b, when the question is raised of whether it is just to require the philosophers to participate in the task of ruling the city, Socrates says the following: Consider that we won�t be doing injustice to the philosophers who come to be among us, but rather that we will say just things to them while compel- ling them besides to care for and guard the others. We�ll say that when such men come to be in other cities it is fitting for them not to participate in the labours of those cities. For they grow up spontaneously against the will of the regime in each; and a nature that grows by itself and doesn�t owe its rearing to anyone has justice on its side when it is not eager to pay In the case of justice, someone might reply by saying that if the city is indeed just, everyone will have only what they need to do their work well. So if they are robbed of anything, that will hinder them in performing their work. But while the Republic clearly has egalitarian leanings, there is no reason to believe that Plato thinks the just city can exist only if there is absolute equality of wealth between citizens who per- form the same work. The Laws too has egalitarian leanings, but it allows that members of the wealthiest class of citizens may have four times as much wealth as members of the poorest class. So in the just city either the robbed wealthier shoe- maker can still perform his work as well as before, or the poor shoemaker who is robbed did not possess everything he needed to do his job as well as possible. 52 In the Nicomachean Ethics (1132b11�18), Aristotle says: These names, both loss and gain, have come from voluntary exchange; for to have more than one�s own (tÕ men g¦r pl�on �cein ½ t¦ aØtoà) is called gaining, and to have less than one�s original share is called losing; e.g. in buying and selling and in all other matters in which the law has left people free to make their own terms; but when they get neither more nor less but just what belongs to themselves (aÙt¦ <t¦> di' aÙtîn g�nhtai), they say that they have their own (t¦ aÙtîn fas�n �cein) and that they neither lose nor gain. So it is easy to see how the �having one�s own� formula can apply to the posses- sion of goods acquired in return for services rendered. Here Aristotle applies it to a case in which goods are exchanged, and one �has one�s own� if one receives goods equivalent in value to the goods surrendered to the other person. (Cf. also Laws 918a� b). Likewise, there is no problem in seeing how, in the case of involuntary exchange which occurs in the case of theft, the robber can be described as having what is an- other�s and the victim described as not having his own. 38 R. HEINAMAN off the price of rearing to anyone.53 But you we have begotten for your- selves and for the rest of the city like leaders and kings in hives; you have been better and more perfectly educated and are more able to participate in both lives. So you must go down, each in his turn . . . Note first that, in the just polis, the reason why it is just for the non- philosophers to receive the benefit of the philosophers� rule is not that they need it to do their jobs but the fact that the philosopher received a benefit from the non-philosophers in the past. This shows that the question of what one needs to perform one�s job is not the only consideration that must be taken into account in deciding what is just. (5) Vlastos can explain why the philosopher who grows up in a non-ideal city has no obligation to benefit others in the city by ruling them: not having �done their own� they have not fulfilled their obligations to him, and it is only if that condition is satisfied that they have the right to the good of being ruled by the philosopher. However, the fact that other citizens in the unjust polis have not done their own does not mean that they thereby forfeit all their rights.54 For example, Plato certainly does not think that philosophers living in non-ideal societies may justly murder or rob whoever fails to do their proper work. The problem for FR is that it cannot explain why. For the rights that it specifies are conditional on the persons in question performing �their work�. Recall that doing one�s own can refer not merely to the performance of one�s specific job but to the entire range of one�s public and private obliga- tions to other people. One might try to interpret Vlastos� position as being that one is entitled to certain rights to some degree corresponding to the de- gree to which one does one�s work in the broad sense, where this refers to the entire range of one�s obligations. But this is evidently not what Vlastos in- tended. For he believes that, in Plato�s view, the fact that one cannot carry out one�s assigned job by itself suffices for the loss of all of one�s rights. 53 At 496d Plato describes the philosopher who withdraws from the madness of public life in an unjust city as someone who �does his own.� So the definition of social justice does not have application solely in the ideal polis: there is a kind of behavior that is doing one�s own, is just, even in the non-ideal polis. 54 Perhaps Vlastos can be understood as arguing against this claim at the end of �Rights of Persons�, pp. 120�23, when he criticizes Plato on the grounds that FR fails to explain why all people �have equal right to share in those benefits which accrue to individuals from the general observance of moral rules� (p. 121). For example, it fails to explain why all have equal right to the benefits resulting from others� observing moral rules prohibiting murder and robbery. On FR, he says, your rights to such bene- fits depend on your performing your work role. In response, I am arguing that Vlastos� point rather brings out a problem with his own interpretation of Plato, viz. that Plato does not think all of your rights depend on your work, and this in two ways. (1) It is not the case that you are entitled only to whatever you need to perform a cer- tain job. (2) It is not the case that all or your rights depend on the performance of your job. SOCIAL JUSTICE IN PLATO�S REPUBLIC 39 Consider what would happen in this utopia if someone through no fault of his own were to cease being a public asset. One of the philosophers, let us say, becomes permanently disabled and can no longer do his job or any other work that would come anywhere near the expected level of produc- tive excellence . . . What may he then claim, now that he may no longer ground his claims on the needs of his job, but only on the value of his indi- vidual existence? As I read the Republic, the answer is: Nothing.55 Of course, the inability to do a specific job does not mean that one is no longer able to fulfil any of one�s moral obligations, and so the disabled phi- losopher could still continue to do some of the things that constitute �doing one�s own� in the extended sense. But as far as Vlastos is concerned, that would earn him no rights whatever. (6) Another problem for FR is that it is explicitly restricted to relations be- tween members of the polis, whereas Plato takes it for granted that the notion of justice that he is talking about applies to the relations between one city and another.56 Thus, he explains that it is not �just� for one Greek city to enslave another Greek city, or to allow any other city to do so (469b�c); nor is it just for one Greek city to ravage the countryside or to burn the houses belonging to other Greeks. On the other hand, Plato apparently thinks that there is no in- justice in a Greek city so treating a city that belongs to barbarians. Since FR does not apply to inter-city relations, it cannot explain Plato�s views about what is just and unjust in such cases. But Proportional Equality can: since Greeks are by nature friends, while Greeks and barbarians are natural ene- mies (470c�d), Greeks do not merit or deserve such treatment from other Greeks; but since Greeks and barbarians are alien in nature, barbarians do merit such treatment from Greeks. For the same reason, Proportional Equality explains why Plato believes it is unjust for a Greek soldier to enslave another Greek (469c). But it is hard to see how FR could always justify such a rule since a soldier would often be able to do his job better when assisted by a slave. (7) Vlastos says that the most important issue for the question of political justice is the distribution of political power: 55 �The Individual as Object of Love in Plato�, Platonic Studies, p. 15. Note that at 498b�c Plato envisages the guardians retiring from political duties and evidently sur- viving to study philosophy. And the kind of argument used in 520a�b suggests why Plato would consider it just to allow healthy individuals who are too old to work to continue to live from the goods provided by other citizens. In 520a�b Plato argues that it is just for the rest of the citizens to receive the good of the philosophers� rule in re- turn for the past benefits which the philosophers received from the citizens even though the future philosophers were at that time contributing little to the good of the city as a whole. Likewise, the past benefits which the elderly citizens conferred on the rest of the city can be the basis for the justice of others helping them now even though the elderly citizens are now contributing little to the overall good of the city. 56 Rep. 332e, 351b, 428d, 469b�471c. 40 R. HEINAMAN For Plato�s public the question concerning the rights of persons whose ur- gency remained paramount over that of all other public issues concerned the just allocation of political rights which, for the Greeks, meant the right to direct participation in functions of government and therewith a share in the control of the state.57 But a major defect with FR is that it gives us no answer to this question of how political offices should be distributed in the polis. Vlastos explains FR as follows: Plato�s unstated, but firmly followed, rule is that each has a right to those, and only those, socially distributable benefits which will maximize his contri- bution, regardless of the ratio which the value of services rendered bears to that of benefits received. . . . Given this model, and the collateral assumptions which Plato makes about what is best done by whom, the allocation of rights which produces the social structure of the rationally ordered polis of Plato�s vision be- comes completely lucid. 58 The italicized phrase refers to (i) assumptions about what functions are best done by whom, which are distinguished from (ii) the model of just distribution. This indicates Vlastos� tacit recognition of the fact that FR does not itself de- termine �what is best done by whom,� i.e. it does not determine what functions are assigned to which people in the city. Hence, it does not deter- mine who is assigned the job of ruling in the city. FR59 presupposes that 57 �Rights of Persons�, p. 113; cf. p. 114. 58 �Social Justice� p. 89. My italics. 59 Some other formulations: for people in the polis, �their function is sole title to the benefits distributed within the polis� (�Social Justice�, p. 90, n. 94). �All members of the polis have equal right to those and only those benefits which are required for the optimal performance of their function in the polis� (p. 110). �The only benefits one is now allowed of right from the cooperative interchange are those which are required for the optimal performance of one�s function� (�Social Justice�, p. 112). �[T]he mem- bers of the polis are to have only those rights which are required for the optimal performance of their respective function...� (�Social Justice�, p. 114). A person �can claim no benefit for himself except insofar as it would enable him to be a better pro- ducer� (�The Individual as an Object of Love in Plato�, Platonic Studies, p. 13). In his paper �Was Plato a Feminist?� (in Studies in Greek Philosophy, vol. II, p. 141), where his attention is on the justification for allowing women as guardians, Vlastos� formulation is significantly different: �the rights and duties justly allocated to citizens of the polis would be all and only those which would enable each of them to make the greatest personal contribution to the happiness and excellence of the whole polis� (my italics). If this is accepted, we need to know how we will distribute duties to the citizens in order to ensure that they do the work that makes the city as happy SOCIAL JUSTICE IN PLATO�S REPUBLIC 41 functions, including political offices, have already been distributed and so it cannot explain the pattern of distribution advocated by Plato. It says that what you deserve depends on what your function is � ruling, producing, etc. Hence, it answers the question of what goods should be distributed to a per- son on the basis of the assumption that that person has already been assigned a certain function. So Vlastos cannot explain why certain people should receive political power on the basis of FR. Before the assignment of a specific function they have no function the performance of which requires certain goods in order to be done as well as possible. We need an account of justice that is independent of FR to determine how political power is to be justly distributed. Vlastos does say something about the proper grounds for distributing po- litical offices. One qualifies for a certain role in the polis, he says, �by natural aptitude, by politically provided education, and by excellence of perform- ance.�60 �The right to participate in the functions of government . . ., like every social function, belongs by right to those who can do it best.�61 But then, of course, it is not one�s social function that grounds the assignment of social function. Rather, the assignment of a certain role in the city will be explained on the basis of proportional equality: one gets the job one merits or deserves � one gets the job one is best able to perform. Thus, Plato believes the guardians alone, because of their preeminent virtue and knowledge, possess the neces- sary ability to rule the city properly. Since everyone else merits or deserves no political power, everyone else gets no political power.62 The assignment of one�s job will be covered by the idea of distributive justice, but sometimes it appears that, for Plato, it is not a matter of distribut- ing goods, but rather a matter of distributing the burdens or �evils� which everyone must endure in a fair manner. This is certainly a matter for which the question of justice or injustice will arise,63 but FR only applies to the dis- tribution of benefits. Hence, it does not clearly apply to the distribution of political power, which, as Vlastos points out, the Republic regularly classifies as an example of a good which is intrinsically bad and possess merely in- strumental value.64 and excellent as possible. I am arguing that the distribution will be in accordance with proportional equality. 60 �Rights of Persons�, pp. 110�111. 61 �Social Justice�, p. 89. 62 Note, too, Plato's criticism of the basis of oligarchic rule at 551c: �would anyone appoint the pilots of a ship this way, by their wealth, and not entrust the ship to a poor man even if he was a better pilot?� 63 The Laws (744c) mentions �contributions� or taxes (e�sfora�) as one of the items whose distribution is governed by proportional equality. 64 Rep. 345d�347d, 517c�d, 519c�d, 520c�e, 521b, 540b. Vlastos says that the guardians �can be expected to make bigger sacrifices in personal happiness for the common good, the biggest of them being the very exercise of the right to govern, 42 R. HEINAMAN One final point. There will be no problem about the proportional equality interpretation accommodating Plato�s analogy between psychic justice and political justice. In the case of psychic justice, while Plato does speak in terms of distributing goods to parts of the soul by allowing them to experi- ence certain pleasures (586d-587a), the emphasis is on each part of the soul performing its proper task, on each part of the soul doing its own rather than having its own. Injustice exists in the soul when a lower part of the soul at- tempts to �rule in the soul although this is not proper (oÙ prosÁkon) since by nature it is fit (pr�pein) to be a slave.�65 The part of the soul which is properly assigned the task of ruling one�s life is reason. This deserves to rule (tÕ m�n which Plato thinks a painful bore� (�Social Justice�, p. 89.). It is hard, then, to see how Vlastos can also say that the performance of one�s work in the city �is for each of these people a privilege, an infinitely precious one, the basis of the worth and mean- ing of their life, so much so that if ... they were to become unfit to do their work, life would lose its value for them� (�Rights of Persons�, p. 112). Likewise, if ruling is a painful bore for the philosopher, how can it be that his vision of the Form of Justice �fills him with a passionate longing to make it the ordering principle of his own life and of the life of his polis� (�Social Justice�, p. 98; my italics)? When Vlastos speaks about justice in the city requiring a sharing of �burdens� as well as of benefits (�Social Justice�, p. 79), the heaviest burden would appear to be the performance of one�s job. If the guardians rightly consider ruling of no intrinsic value, it is even clearer that the work of the auxiliaries and producers would have no intrinsic value. How, then, can the performance of this work be �the basis of the worth and meaning of their life�? But the conflict in Vlastos� account of the value of one�s function does no more than mirror an unresolved conflict in Plato�s own position. The Republic is supposed to be demonstrating that doing what is just, including one�s work, is an intrinsic good (cf. 497a), and Plato does say that the performance of one�s job is necessary if one�s life is to be worth living (406d�407a). But Plato often regards the specific actions in which doing what is just is realized as intrinsic evils (as in the passages cited above), or at least as devoid of any intrinsic value (357c�d). Plato has no account of the rela- tion between doing what is just and, say, building a house, when one does what is just by building a house. Irwin tries to help Plato out by saying that all he needs to show is that the guardi- ans value ruling insofar as it is just action, not insofar as it is ruling (Plato�s Ethics, pp. 300�301). But this distinction is not found in Plato. And it is an evasion of the problem Plato ought to be facing. The view Plato aims to refute holds that doing injustice is good in itself while doing what is just is evil in itself. The adherents of this view do not think that an unjust action is good qua doing what is unjust and indiffer- ent or worse qua (e.g.) getting possession of gold. It is precisely because an unjust act is a matter of getting possession of another�s gold that it appears good. Likewise, do- ing what is just appears to be an evil because of the specific content of the action in which it is realized � insofar as it is handing over one�s money, for example � not insofar as it falls under the description �doing what is just.� On its own, the demonstration that handing over one�s money or ruling is worthwhile only qua doing what is just leaves the position of Plato's opponent untouched. It was not that aspect of the action which anyone found objectionable. 65 Rep. 444b4. Cf. 442b1�2. SOCIAL JUSTICE IN PLATO�S REPUBLIC 43 logistikù ¥rcein pros»kei)66 because it alone possesses wisdom and looks to the good of the whole soul (442c). On the other hand, the lowest part of the soul is entirely unfit to rule, and so it is assigned no role in ruling the life of the just person. In the just person, the task of ruling the soul is distributed ac- cording to proportional equality � according to merit. Since, with respect to ruling, reason has all the merit and appetite has none, appetite is the slave of reason in the just soul (444b4) as the producer is the slave of the guardian in the just state (590c�d; contrast 463b). Psychic justice exists when each part of the soul does its own, and each part of the soul does its own when it does that which is fitting for it to do (Ö pros»kei). Robert Heinaman UNIVERSITY COLLEGE LONDON 66 Rep. 441e4. Cf. 474b�c. 
work_dxgsto4fnnhm3mwfgir33gw6vm	----	BOOK REVIEW Comparative Criminal Justice (2nd edn.) Francis Pakes. Willan Publishing, Devon, UK, 2010: ISBN: 978-1-84392-769-3, v-ix + 212 pages, £20.99 (Paperback) Michael Adorjan Received: 16 August 2010 /Accepted: 18 August 2010 / Published online: 7 September 2010 # The Author(s) 2010. This article is published with open access at Springerlink.com Pakes’ book Comparative Criminal Justice is ambitious. The book provides a broad, topically geared and internationally comparative introduction to criminal justice. It follows a tried-and-true yet practical progression from policing, pre-trial and trial systems, punishment, and finishing with chapters on international policing and the development of universal human rights and international courts of justice. Each chapter offers a general introduction to areas that are then elaborated with reference to differing cultural contexts. Case studies are frequently presented in boxes that help flesh out the main arteries of thought, and often help introduce further comparisons and contrasts. The book is most suitable for undergraduate students, though its insights may appeal to a broad readership, including criminal justice practitioners and those involved in policy. The strongest feature of Comparative Criminal Justice is its inclusiveness. Pakes underscores at several points his argument that a comprehensive comparative lens must take into account both quantitative and qualitative approaches (p. 9); that “the question of meaning remains highly pertinent” (p. 30); and that no matter how global our perspective, we should be carefully attuned to the local exigencies of culture under which globalization trends in criminal justice are appropriated and attuned. This is the second edition of the book, featuring reference to current events [e.g., discussion of Obama’s potential recognition of the International Criminal Court (p. 179)]. Pakes aims to go “beyond police, courts and prisons” (p. 1) by including discussion on, for example, privatized policing and security, criminal justice in the Middle East (including Sharia law), and cybercrime, including reference to the ‘great firewall of China’. The best chapter opening is for the chapter on systems of trial (p. 86). Pakes begins with an elaborated discussion on the ergonomic features and layout of courtrooms, suggesting that the spatial relationships of courtrooms, for instance the placement of defendant in relation to the judge, illustrates much about the style and operation of the court system— especially when comparing adversarial and inquisitorial systems. Pakes sustains his references to ergonomics throughout the chapter, which serves to underscore theoretical and conceptual points. This proves to be a pedagogically effective approach. Asian Criminology (2012) 7:193–195 DOI 10.1007/s11417-010-9094-3 M. Adorjan (*) Department of Sociology, The University of Hong Kong, Pokfulam Road, Pokfulam, Hong Kong e-mail: madorjan@hku.hk A consistent theoretical thread is upheld throughout the book regarding the differences, advantages and disadvantages of adversarial and inquisitorial judicial systems. During discussions about which nations gravitate towards which system, Pakes successfully underscores why certain international criminal justice initiatives (such as international tribunals) encounter problems: they pool actors from different cultural contexts who hold differing approaches. Part of the way forward, Pakes implies, involves understanding the geo-historical roots that have shaped variegated systems worldwide, and arriving at compromises that work. Another theoretical point with resonance is his frequent referrals to levels of trust or distrust in governments and crime control authorities. Pakes argues that “the type of person society decides to put its faith in with regard to dealing with alleged wrongdoers hinges on the answer to the question of whom to trust” (p. 120). Perhaps the work of David Nelken should be more prominent here, given Nelken’s advocacy of research on trust to further comparative criminology. Nevertheless, while never a central point, it becomes obvious that nations with neoliberal systems often hold higher levels of distrust, leading to particular crime control responses (penal populism is discussed in the chapter on punishment). It is equally obvious that nations with higher levels of trust in the state and crime control respond quite differently to crime. Pakes is quick, however, to offer up-to-date evidence that, for instance, the ‘rosy’ image of crime control in the Netherlands needs tempering in light of recent evidence challenging the region’s classic reluctance to rely on imprisonment (p. 130). Pakes is critical towards theories of globalization, arguing that there still exists an enormous gap between those with access to information technologies and the advantages of ‘space-time compression’ (p. 151) and those left out (and left ‘local’). He notes, “against global winners we must set large groups of clearly identifiable global ‘have nots’” (p. 153). For all the discussion on globalization, however, I found it surprising that no reference is made to Bauman’s writings, especially on ‘glocalization’. It would be worthwhile to make this connection considering Pakes’ already developed analyses on local–global intercon- nections and limitations. As Pakes says, “we can continue to look at national or local arrangements but we must be aware of the fact that globalisation also impacts on [them]” (p. 21), adding “the differential impact of globalisation on local communities is a key area of comparative research” (p. 22). Pakes is likely well aware of areas where more theoretical muscle could be added, but chooses to refrain to make the text accessible to an undergraduate student audience. Nevertheless, student receptivity to theoretical criminology should not be underestimated. It is interesting to consider whether an effective comparative analysis is enabled by a value neutral or critical orientation. Pakes is certainly value neutral (for the most part), especially when carefully discussing the details of Sharia law and Islamic systems of crime control (pp. 96–99). He states facts associated with gender disparities here without making further critical remarks: “In most Islamic courts evidence from a male witness counts heavier than that from a female witness and in some jurisdictions women hardly appear at all as witnesses” (p. 98). His non-judgmental analysis allows readers to consider complexities and ambiguities and ultimately make up their own minds. As he notes, such an analysis may help prevent ethnocentrism (p. 3). In some locations, however, Pakes’ political and critical leanings are more evident: e.g., in his reference to Kenya as a nation that “ridicules the notion of ‘free’ state police” (p. 57); or in his reference to the “pervers [ity]” that in the Netherlands suspects’ rights are “severely limited” due to the feeling that “the presence of a defense lawyer would hinder the development of rapport between interviewer and suspect” (p. 75). It may be, indeed, safer to critique Western criminal justice systems than Islamic systems animated more by religion than legal protocol. Pakes 194 Asian Criminology (2012) 7:193–195 seems to be deliberately holding back his criticisms of Islamic systems, but does so likely to promote empathy and understanding. As Pakes notes at the end of this chapter, “there is no easy way of judging which [system] is better or worse. That would probably be a meaningless exercise” (p. 103). The reader will be left to decide if Pakes could (and should) be more critical here in the same manner as he is—with much greater ease—with respect to occidental regions. Pakes asserts that despite pressure on scholars of comparative criminal justice to be experts on everything, this is impossible (p. 11); indeed a book on comparative criminal justice should not try to be everything to everyone, for too much would be lost. Nevertheless, there are areas where minor mistakes are made that may be more noticeable to readers in Southeast Asia. For instance Pakes incorrectly asserts that Hong Kong’s Independent Commission Against Corruption was founded in 1994 (p. 56), when in fact (referring to the same ICAC source Pakes himself cites) it was founded in 1974. This has implications for the discussion, as Pakes refers in this section to the 1990s, not the 1970s, as a period during which Hong Kong was embroiled in “the fight against corruption,” which took “centre stage” (p. 56), and discusses ICAC statistics as recent as 2009. I also feel that Pakes presents too uncritically the ‘zero tolerance’ success of New York City during the 1990s under mayor Giuliani (pp. 51–52). He may have at least referred to skeptics who have pointed to trends indicating declining crime rates before Giuliani took office. Overall, however, these points are minor quibbles and in no manner detract from the validity and rigorous scholarship that runs consistently throughout the text. Readers interested in Hong Kong and China may note Pakes’ attention to these areas. Hong Kong’s recent inclusion in the United National International Crime Victims Survey facilitates this. Pakes’ discussion of Internet censorship in China via its ‘great firewall’ is given balanced treatment. He refers to the initiative’s real name, the Golden Shield Project, and presents a series of facts about it while reserving judgement (p. 160). While readers invested in researching these areas will not be satisfied about the attention they receive (short paragraphs embedded in larger comparative discussions), this is to be expected in a book that is careful not to place too much emphasis on any particular area. While Asian and Middle Eastern regions receive attention, the book is often more robust in its intra-regional comparisons within Europe, with frequent references to the US as well. This is obviously due to Pakes’ experience researching these areas, though more sustained attention to areas outside of Western domains would help underscore insights Pakes makes in reference to neoliberalism (p. 151) and nations that do not seem to follow the same neoliberal patterns of certain Western regions. Comparative Criminal Justice may serve its purposes best as a springboard to both classroom discussion and further research. It is evident that comparative criminology is still an emerging area, with questions and criticisms regarding methods, theories, and whether or not a more critically oriented engagement is appropriate. Pakes guards against critical approaches, perhaps due to reservations that a descent into pejorative assessments would stymie the ability to explore culturally specific meanings. The book is a success, in any event, which helps to break readers out of ostensibly myopic criminological research. Open Access This article is distributed under the terms of the Creative Commons Attribution Noncommercial License which permits any noncommercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. Asian Criminology (2012) 7:193–195 195 Comparative Criminal Justice (2nd edn.) 
work_dznjlx7anjh4pmg6eziere6ori	----	PowerPoint-Präsentation Using Factorial Surveys to Study Justice Perceptions: Five Methodological Problems of Attitudinal Justice Research SFB 882 Working Paper Series ○ No. 47 ○ January 2015 DFG Research Center (SFB) 882 From Heterogeneities to Inequalities http://www.sfb882.uni-bielefeld.de/ Stefan Liebig Carsten Sauer Stefan Friedhoff Stefan Liebig, Carsten Sauer and Stefan Friedhoff Using Factorial Surveys to Study Justice Perceptions: Five Methodological Problems of Attitudinal Justice Research SFB 882 Working Paper Series, No. 47 DFG Research Center (SFB) 882 From Heterogeneities to Inequalities Research Project A6 Bielefeld, January 2015 SFB 882 Working Paper Series General Editors: Martin Diewald, Thomas Faist and Stefan Liebig ISSN 2193-9624 This publication has been funded by the German Research Foundation (DFG). SFB 882 Working Papers are refereed scholarly papers. Submissions are reviewed by peers in a two-stage SFB 882 internal and external refereeing process before a final decision on publication is made. The Working Paper Series is a forum for presenting works in progress. Readers should communicate comments on the manuscript directly to the author(s). The papers can be downloaded from the SFB 882 website http://www.sfb882.uni-bielefeld.de/ SFB 882 “From Heterogeneities to Inequalities” University of Bielefeld Faculty of Sociology PO Box 100131 D-33501 Bielefeld Germany Phone: +49-(0)521-106-4942 or +49-(0)521-106-4613 Email: office.sfb882@uni-bielefeld.de Web: http://www.sfb882.uni-bielefeld.de/ DFG Research Center (SFB) “From Heterogeneities to Inequalities” Whether fat or thin, male or female, young or old – people are different. Alongside their physi- cal features, they also differ in terms of nationality and ethnicity; in their cultural preferences, lifestyles, attitudes, orientations, and philosophies; in their competencies, qualifications, and traits; and in their professions. But how do such heterogeneities lead to social inequalities? What are the social mechanisms that underlie this process? These are the questions pursued by the DFG Research Center (Sonderforschungsbereich (SFB)) “From Heterogeneities to Inequalities” at Bielefeld University, which was approved by the German Research Foundation (DFG) as “SFB 882” on May 25, 2011. In the social sciences, research on inequality is dispersed across different research fields such as education, the labor market, equality, migration, health, or gender. One goal of the SFB is to integrate these fields, searching for common mechanisms in the emergence of inequality that can be compiled into a typology. More than fifty senior and junior researchers and the Bielefeld University Library are involved in the SFB. Along with sociologists, it brings together scholars from the Bielefeld University faculties of Business Administration and Economics, Educational Science, Health Science, and Law, as well as from the German Institute for Economic Research (DIW) in Berlin and the University of Erlangen-Nuremberg. In addition to carrying out research, the SFB is concerned to nurture new academic talent, and therefore provides doctoral training in its own integrated Research Training Group. A data infrastructure project has also been launched to archive, prepare, and disseminate the data gathered. Research Project A6 “The Legitimation of Inequalities – Structural Conditions of Justice Attitudes over the Life-span” This project investigates (a) the conditions under which inequalities are perceived as problems of justice and (b) how embedment in different social contexts influences the formation of attitudes to justice across the life course. We assume that individuals evaluate inequalities in terms of whether they consider them just, and that they hold particular attitudes toward justice because, and as long as, these help them to attain their fundamental goals and to solve, especially, the problems that arise through cooperation with other people (cooperative relations). As a result, attitudes on justice are not viewed either as rigidly stable orientations across the life span or as “Sunday best beliefs” i.e. short-lived opinions that are adjusted continuously to fit situational interests. Instead, they are regarded as being shaped by the opportunities for learning and making comparisons in different phases of the life course and different social contexts. The goal of the project is to use longitudinal survey data to explain why individuals have particular notions of justice. The key aspect is taken to be changes in the social context – particularly households, social networks, or workplaces – in which individuals are embedded across their life course. This is because social contexts offer opportunities to make social comparisons and engage in social learning, processes that are decisive in the formation of particular attitudes to justice. The project will test this empirically by setting up a special longitudinal panel in which the same individuals will be interviewed three times over an 11- year period. The results of the project will permit conclusions to be drawn on the consequences of changes in a society's social and economic structure for its members' ideas about justice. The project therefore supplements the analysis of the mechanisms that produce inequality, which is the focus of SFB 882 as a whole, by looking at subjective evaluations, and it complements that focus by addressing the mechanisms of attitude formation. Research goals (1) Analysis of the conditions in which justice is used as a criterion for evaluating inequalities. (2) Explanation of attitudes toward justice as the outcome of comparison and learning processes mediated by the social context. (3) Longitudinal observation of the individual development of attitudes to justice over the life course. Research design (1) Continuation and expansion of the longitudinal survey of evaluations of justice conducted by the German Socio-Economic Panel Study (SOEP). (2) Commencement of an independent longitudinal panel with ties to the process-generated individual data of the German Institute for Employment Research (IAB) and information on companies and households (the plan is to carry out three survey waves over an 11-year period). The Authors Stefan Liebig is Professor of Sociology with a special focus on Social Inequality and Social Stratification at the Faculty of Sociology, Bielefeld University, and Principal Investigator of the Collaborative Research Centre (SFB) 882 research project A6, “The Legitimation of Inequalities – Structural Conditions of Justice Attitudes over the Life-span”. His research interests are empirical justice research, organizations and social inequality, and methods of empirical research. Recent publications are “The justice of earnings in dual-earner households”, in: Research in Social Stratification and Mobility 30 (2012): 219-232 (with C. Sauer and J. Schupp); “Gerechtigkeit”, in: S. Mau & N. M. Schöneck (Eds.), Handwörterbuch zur Gesellschaft Deutschlands (2013), Springer VS: 286-299 (with C. Sauer and P. Valet); “The Application of Factorial Surveys in General Population Samples: The Effects of Respondent Age and Education on Response Times and Response Consistency”, in: Survey Research Methods 5 (2011): 89-102 (with C. Sauer, K. Auspurg and T. Hinz). Contact: stefan.liebig@uni-bielefeld.de Carsten Sauer is a postdoctoral research fellow in the SFB 882, project A6 at Bielefeld University. His research interests include the explanation of behavior, social inequality and justice and quantitative research methods (especially factorial surveys). Among his recent publications are: “The Factorial Survey as a Method for Measuring Sensitive Issues”, in: U. Engel, B. Jann, P. Lynn, A. Scherpenzeel, P. Sturgis, (Eds.), Improving Survey Methods. Lessons from recent Research (2014), Routledge: 137-149 (with K. Auspurg, T. Hinz, S. Liebig); “Incentives and Inhibitors of Abusing Academic Positions: Analysing University Students' Decisions about Bribing Academic Staff”, in: European Sociological Review 30 (2014): 230-241 (with P. Graeff, S. Satter, G. Mehlkop); “Less is Sometimes More: Consequences of Overpayment on Job Satisfaction and Absenteeism”, in: Social Justice Research 26 (2013): 132-150 (with P. Valet); “When Decisions Should Be Shared: A Study of Social Norms in Medical Decision Making Using a Factorial Survey Approach”, in: Medical Decision Making 33 (2013): 37-47 (with M. Müller-Engelmann et al.). Contact: carsten.sauer@uni-bielefeld.de Stefan Friedhoff is a member of the SFB 882 project “Information and Data Infrastructure” (INF) and PhD candidate at the Bielefeld Graduate School in History and Sociology (BGHS). In the INF project he assists researchers with problems of everyday documentation and improves documentation practices. His research interests focus on data management, survey methodology, social inequalities and factorial survey research. Contact: stefan.friedhoff@uni-bielefeld.de Using Factorial Surveys to Study Justice Perceptions: Five Methodological Problems of Attitudinal Justice Research Stefan Liebig, Carsten Sauer, and Stefan Friedhoff1 Summary: This article provides an overview of how factorial surveys have been used in justice research in the past. It addresses the question of why this method is particularly useful to survey attitudes toward justice. This question is discussed with reference to five problems of empirical justice research. For each of these problems, findings are presented from recent justice research that has used the factorial survey method, with a focus on assessing the allocation and distribution of goods (earnings/income, transfer payments, pensions) and burdens (taxes). The paper concludes with a discussion of future developments and possible applications in this research field. Introduction For a long time, the question of what is just and what is not was regarded as a purely normative problem and, thus, as a subject of philosophy, legal theory, or theology. The aim of this normative justice research is to provide answers to Kant’s question “What ought I to do?”, and to do so has to identify principles or rules of justice that ensure that, from a moral point of view, the allocation and distribution of goods and burdens can be regarded as just (e.g., Rawls, 1975). Starting around the middle of the last century, a descriptive, or empirical, line of research on justice began to establish itself, first in psychology, and later in the social sciences and in economics (Adams, 1965; Deutsch, 1985; Jasso, 1978; Runciman, 1966; Törnblom, 1992). This steadily growing line of research examines what individuals and societies consider to be a just distribution of goods and burdens; why a state of justice is regarded as something worth achieving; and what consequences can be observed in a society when something is perceived as just or injust. Most of this empirical research has focused on the study of attitudes toward procedural and distributive justice (cf. Liebig & Sauer, 2013, 2015). While questions of procedural justice involve an evaluation of decision-making processes regarding the allocation and distribution of goods or burdens (Deutsch, 1985; Jasso, 1980; Törnblom, 1992; Wegener, 1987), questions of distributive justice involve an evaluation of the outcomes of such processes. The main finding of this research is that attitudes toward or beliefs about justice, as well as evaluations of concrete outcomes, not only depend on individual characteristics—and thus do not have the status of personal traits—but are affected by the social situation in which an individual is embedded and the type of resource that is allocated. A specific allocation amount can therefore only be assessed on the basis of contextual information (Hegtvedt, 2006). This is why judgments concerning distributive justice are always complex, context- dependent, and context-related attitudes. At least five methodological problems result from this complexity which are partially known from other areas of attitude research but are particularly important in justice research. First, the high degree of context dependency of judgments implies that a lack of contextualization can lead to systematically biased measurements of attitudes toward justice, particularly in survey-based justice research, but also in experimental behavioral economics, where researchers deduce individual attitudes toward justice from behavior in very abstract and artificial distribution situations. Second, since attitudes toward justice appear to be determined by a variety of very different factors, the actual importance and, especially, the relative importance of these factors must be determined (for example, to draw conclusions about their role in the generation of distributive injustices). This leads 1 This paper is an outcome of the research project “The Legitimation of Inequalities – Structural Conditions of Justice Attitudes over the Lifespan,” which is funded by the German Research Foundation (DFG) within the Collaborative Research Center 882 “From Heterogeneities to Inequalities” at Bielefeld University, Germany. 1 us to a third problem: in order to investigate the causes and influencing factors of individual perceptions of justice, in some fields of justice research, experimental studies are conducted in the laboratory, with only a certain group of individuals—usually students—participating (Henrich et al., 2010). As a result, the findings are often based on the study of convenience samples which include students and in which the external validity is usually not sufficiently clarified. This is particularly problematic in justice research because there is evidence that individual attitudes toward justice are influenced by sociostructural position and previous individual experiences, among other things. The fourth problem, the problem of social-desirability bias in response behavior (Paulhus, 1984), is particularly important when measuring attitudes toward justice because attitudes are sometimes not measured appropriately, so that the findings obtained lead to erroneous conclusions. The fifth problem is the problem of measuring and identifying causal relationships; this problem is particularly relevant when conducting research on the causes of certain attitudes, whether toward justice or other factors. In this article, we will show how factorial surveys can be used, if not to overcome, then at least to reduce, the risk and impact of these five problems in empirical research on justice. We will review studies that analyze attitudes toward distributive justice and report problems in relation to the illustrated key results.2 The article concludes with a discussion of future developments and possible applications. Factorial Surveys in Empirical Justice Research Factorial surveys have been used in empirical justice research for over 30 years to determine what ideas exist about the fair allocation of goods or burdens (e.g., Beck & Opp, 2001; Jasso, 2006; Rossi & Anderson, 1982; Wallander, 2009). Generally speaking, respondents in these studies are asked to evaluate short descriptions (“vignettes”) of recipients (e.g., employees, households), in which the individual or situational characteristics (“dimensions”) used to describe the case are varied systematically in their levels. Since these levels are simultaneously changed among vignettes, the procedure is also referred to as “multifactorial.” Figure 1 shows a vignette that is used to measure attitudes toward the distributive justice of income. The description consists of five dimensions, four of which are characteristics describing the individual (age, gender, vocational training, occupation), with the fifth dimension indicating the individual’s gross earnings. The specific values of these characteristics are varied from vignette to vignette. Respondents are then asked to rate the justice of the gross earnings presented on an 11-point scale. In the analysis, these ratings are treated as dependent variables, and the five dimensions are treated as independent variables. By systematically varying these dimensions, their importance for justice evaluations can be estimated through statistical analysis and conclusions about justice can be drawn, with questions that can be addressed in this way including: Should earnings increase with age? Should women receive the same income as men? Should individuals with vocational training earn more than individuals without training? 2 The following illustration is based on a literature review that involved two steps. The first step was to search for articles in Google Scholar and the Social Science Citation Index which use any combination of the German and English keywords “justice” or “fairness” [“Gerechtigkeit”] and “factorial survey” [“faktorieller Survey”] or “vignette(s)” [“Vignette(n)”]. Following the procedure described by Wallander (2009), the results were then complemented by publications citing the article “Who Should Get What? Fairness Judgments of the Distribution of Earnings” by Alves and Rossi (1978), because it is one of the first and most frequently cited articles in justice research that use factorial surveys. 19 articles in German and English were identified in this way. An overview of the studies used here can be found in the Appendix. 2 Figure 1. Example vignette with five dimensions A 60-year-old woman with occupational training works as a social-worker. Her gross monthly earnings are €2,500 (before taxes and transfers). In your opinion, are her monthly gross earnings just, unjustly high, or unjustly low? Unjustly low Just Unjustly high -5 -4 -3 -2 -1 0 +1 +2 +3 +4 +5            Source: Sauer et al. (2011) In the past, factorial surveys have been used in justice research primarily to examine attitudes toward the allocation of monetary rewards (individual earnings, household income, welfare-state transfer payments) or burdens (taxes). Compared with the use of vignettes in other fields of research (e.g., Wallander, 2009), the proportion of factorial surveys used in population surveys is larger in justice research, and there are also more international comparative studies (Auspurg et al., 2013; Hysom & Fişek, 2011; Jasso & Meyersson Milgrom, 2008; Schrenker, 2009). Recent applications of factorial surveys in justice research show two methodological peculiarities. (1) As regards the decisive advantage of factorial surveys, which is to provide the respondents with contextualizing information, studies differ in the number of dimensions (information content) and vignettes per respondent. The numbers of dimensions used per vignette range from three (Jann, 2008) to ten (Auspurg et al., 2013; Gatskova, 2013; Sauer et al., 2009). The number of vignettes to be evaluated varies much more. This is due to a methodological peculiarity. Especially in the early days of using factorial surveys, a very large number of vignettes were presented; the studies of Jasso, Rossi, and their colleagues used between 40 and 60 vignettes per respondent (Alves & Rossi, 1978; Jasso, 1994; Jasso & Meyersson Milgrom, 2008; Jasso & Rossi, 1977; Jasso & Webster, 1997). They did so because they wanted to obtain as many data points as possible for each subject to improve the estimation of individual judgment behavior (within-analysis) and to make comparisons among respondents based on their judgments (between-analysis). This procedure involves a two-step process. In the first step, individual regressions are estimated to measure the influence of the dimensions on the justice judgments of a single respondent (within-estimation). In the second step, these coefficients are used as individual traits to analyze correlations or differences among groups of respondents or other attitude measurements (between-estimation). (2) The second methodological peculiarity has to do with the use of open and magnitude response scales, which are used to avoid direct measurement. When asked the direct question, respondents state what they think would be a just reward the individual described in the vignette should receive (Hysom & Fişek, 2011; Shepelak & Alwin, 1986). When the respondents are asked the indirect question, the justice evaluation (amount of injustice) is measured, but the respondents are not asked to specify the reward (e.g., earnings). The actual amount is determined ex-post using a two-step estimation procedure. A classic application is the determination of the just amount of earnings (for details, see Jasso, 2006; Jasso & Meyersson Milgrom, 2008; Jasso & Wegener, 1997). This procedure is based on the theory of Jasso (1978, 2006), according to which the justice evaluation J is the product of the logarithmic ratio of the actual earnings (A) and the just earnings (C), as well as an individual constant (θ) (Jiv = θi × ln (Av / Civ), with i = judging individual and v = vignette). Both 3 C and θ are unknown and must be estimated. To calculate the just reward C, it is necessary to transform Jasso’s equation (Civ = Av × exp (–Jiv / θi)) and estimate θ as the slope coefficient of individual regression equations.3 The estimation is done by regressing individual-specific bivariate regressions of all judgments of an individual (J) on the actual earnings given in the vignettes. The estimated slope coefficient then provides the individual constant θ, which is used to calculate the just earnings for each vignette. This procedure makes it possible to express the attitudes toward justice in the reward units (see Figure 2). It is obvious that in this procedure at least an interval scale level of the justice judgment J is needed. For this reason in particular, open scales or magnitude scales are used (Jasso & Meyersson Milgrom, 2008; Jasso & Webster, 1999; Liebig & Mau, 2002, 2005) in addition to conventional 9- or 11-point rating scales (Alves & Rossi, 1978; Jasso, 1994; Jasso & Rossi, 1977; Jasso & Webster, 1997; Schrenker, 2009).4 The rationale for using these indirect measures of attitudes toward justice is that certain groups of respondents might find it too difficult to state specific rewards or burdens. More important, respondents do not express their own perceptions when asked about just rewards, because they are too heavily influenced by the given rewards (Jasso, 2006; for arguments to the contrary, see Markovsky & Eriksson, 2012). However, this method has been critically discussed (Auspurg & Hinz 2015), and the use of open or magnitude scales has been considered to be particularly problematic (Sauer et al., 2009, 2014). But how might factorial surveys be used to reduce the methodological problems of empirical research on justice? In the following, we will provide a detailed description of the five problems mentioned and explain how factorial surveys might be used to reduce these problems in justice research. Issues of Empirical Justice Research and Findings from Studies Involving Factorial Surveys Contextual Information: Complexity of Distribution Processes The first problem of analytical justice attitude research is rooted in the very subject itself. In most cases, the question of whether or not the allocation of certain rewards or burdens is just can be answered only on the basis of contextual information (Hegtvedt, 2006). This is because the actual allocation of rewards and burdens itself depends on a combination of individual and structural characteristics. The amount of actual earnings is determined by various factors, including individual performance, human capital, age, gender, occupation, industrial sector, and company size. The questions that arise when the justice of earnings is assessed are which of these factors the respondents think determine the amount of fair earnings and what relative importance each dimension has. Previous research shows that individuals judge allocation and distribution results on the basis of very general rules or principles of distribution, which also specify which dimensions the respondents will consider to what extent. The most important principles besides the principle of equality are the proportionality or equity principle (rewards should be proportional to an individual’s current expenses and efforts), the principle of need (individual requirements in terms of minimum social standards and non-self-inflicted disadvantages should be considered in the allocation), and the principle of entitlement (an individual’s position and status in the hierarchical structure of a society or a group should be taken into consideration) (Liebig & Sauer, 2013, 2015). The respondents’ decision as to which of these principles should guide the allocation or distribution process depends on the situation and on the type of goods or burdens to be distributed (e.g., income, 3 The equation is solved using the following conversion and Slutsky’s theorem: J = θ × ln A – θ × ln C = a + θ × ln A (cf. Jasso, 2007; Jasso & Wegener, 1997). 4 When the magnitude scale is used, respondents are asked to express the degree of their feeling of injustice by giving a random number or by drawing a line. To ensure the comparability of judgments, the respondents are first presented with a vignette (anchor vignette), which is similar for all respondents. 4 medical assistance). In making such decisions, respondents might also use a combination of any of these principles. It is important to note that there is no way any of these principles could be “simply” applied, because it is impossible to make generalized statements about what “individual performance” actually is, which of the criteria required are legitimate, or which status characteristics of an individual should be rewarded and with what amounts. This more precise determination of the conditions and their links to specific reward amounts in turn depends on the context, and is the result, of social-comparison processes. Only by comparing themselves with other individuals or groups (individual reference individuals or “generalized others”) can respondents develop concrete ideas about what might constitute a just reward or burden. Thus, information on the recipients and the situational conditions is needed to decide which principles of justice should apply in a given case and what reward or burden is just or unjust. Survey-based justice research in particular relies primarily on item-based measurement instruments, which provide respondents with little contextual information and measure attitudes toward justice on a very general and abstract level.5 The aim of these measurements is to identify cross-context preferences or general normative orientations.6 Item-based measurements are useful, generally speaking, but can also lead to a systematic distortion of response behavior. Since item-based instruments are designed to evoke a response behavior that favors equal distributions of goods and burdens, their exclusive use could lead to an overestimation of equality preferences. Studies on empirical justice research show that respondents always rely on “equality heuristics” if there is too little information about distributive decisions. A similar behavior is observed when the respondents want to or can invest only little cognitive capacity in processing the instruments used because the instruments are too abstract, too difficult to comprehend, or not concise enough (Keller et al., 2013; Messick, 1993; Roch et al., 2000). The use of the equality principle can be understood as a “rule of thumb or an intuitive rule of sharing” (Keller et al., 2013, p. 172) and as what might be called the “default” attitude in resolving allocation and distribution conflicts in “ambiguous, novel, or complex social situations” (Messick, 1993, p. 28). The advantage is that when using the equality principle, no information is needed about the recipients of the allocation or distribution or about any other situational parameters. Nor are there any complex cognitive processes required of the respondents to be able to make a more differentiated allocation and distribution (Messick, 1993). By exclusively using item-based questions it is possible to favor this use of a simple equality-oriented heuristic. Factorial surveys allow researchers to avoid this problem. The first reason is that it requires respondents to make greater cognitive efforts than do item-based attitude measurements (Sauer et al., 2009, 2011). The vignettes presented have a more complex structure (several dimensions), and in most cases respondents are asked to evaluate several vignettes. Second, in a factorial survey respondents are provided with more information. The contexts of the evaluation can be compared in a way that is more appropriate to the subject; for example, when asked to evaluate the justice of earnings, individual factors such as performance and job experience may be complemented with contextual dimensions such as the economic situation of the company or the situation of the family (Sauer et al., 2009, 2011). In addition, it is likely that the use of realistic vignettes helps the respondents to imagine the situation better and thus enables them to make appropriate decisions that go beyond simple heuristics. For the measurement of income inequality this means that measurements that use factorial surveys should show significantly lower “inequality aversion” compared with classic item-based questions. This is suggested by the results of a population survey conducted in Germany in 2009 (Sauer et al., 2011). Of the 1,600 respondents recruited for an item- 5 Experimental behavioral economics operates in a similar way when distribution behavior in highly artificial game situations is used to draw conclusions about the justice preferences of participants, most of whom are students (cf. Fehr & Schmidt, 2006). 6 One example is an item respondents in the German General Social Survey (ALLBUS) are asked about on a regular basis to determine whether they agree with the statement “Income inequality in Germany is too high” (ALLBUS 2010, Item 6a), in order to draw conclusions about preferences of income inequalities in society. 5 based measurement, 91 percent stated that income inequality in Germany was “too high” or “far too high.” From these responses a clear equality preference can be derived. The same questionnaire also asked respondents to evaluate the justice of earnings of vignette persons. As Figure 2 shows, respondents clearly differentiated between just earnings depending on the occupation of the vignette individuals (Sauer et al., 2009), thus creating inequality with their judgments. Figure 2. Earnings rated as just and actual earnings by occupation of vignette individuals in Germany in 2009 Source: Attitudes toward justice from Sauer et al. (2009), actual earnings by occupation (mean of full-time-employed in a given occupation), calculated on the basis of SOEP 2009 The triangles connected by the continuous line in Figure 2 show the just earnings for each of the ten occupations (mean values), which were estimated on the basis of the respondents’ judgments, while the squares connected by the dashed line show the actual earnings of each of the occupations as given in the data set of the German Socio-Economic Panel 2009 (averages of full-time employees in each occupation [ISCO four-digit code]). The two lines run fairly parallel, which suggests that the respondents’ judgments were not arbitrary and that the estimations of just earnings based on the justice judgments provide meaningful values. On the whole, the respondents would slightly increase the earnings of individuals in lower-status occupations (manufacturing laborers, hairdressers) and lower the earnings of high-status occupations (medical doctors). However, the existing variation of earnings across occupations is still considered to be just. A uniform distribution of earnings—as could be derived as favored based on the item-based measurement—is not considered to be just. In addition, there is no statistically significant correlation between the inequality preference expressed in the vignette judgments and the preference for smaller inequalities in the item-based measurement. This means that if more detailed information about the potential recipients and their situation is available, the assessment of what constitutes just earnings is more differentiated, and that if this and other contextual information is not available, respondents use the “rule of thumb” 0 1000 2000 3000 4000 5000 6000 7000 8000 Just gross earnings Actual gross earnings 6 appropriate to the given situation and regard greater equality as just. This pattern is consistent with the findings on the use of the “equality heuristics” (see Messick, 1993; Roch et al., 2000). The potential of this method to allow for differentiated judgments of justice by using appropriate “contextualizations” has also been shown by two studies that do not focus explicitly on earnings. The first of these studies, Schaffer (1990), examined what criteria respondents used to determine what they thought would be fair child support payments the parent not living in the same household as their child should make. The results clearly showed a tendency toward justice judgments based on actual needs, with respondents stating that child support payments should be proportional to the income of the persons liable for child support. In other words, the higher the income of the parent liable for child support, the higher the child support payment should be to be considered just. The second study, Liebig and Mau (2002), focused on minimum social security and examined the attitudes toward a minimum income provided by the state. Their finding was that the respondents were generally in favor of a minimum level of social security that would ensure the recipients’ existence, which is consistent with the results of item-based measurements. However, their results also show that respondents think that the actual amount of welfare benefits should depend on whether the individuals described in the vignettes had put themselves in a state of welfare dependency. The general consensus what that those who are in financial distress through their own fault should receive less welfare state support than those who were in financial distress through no fault of their own. Thus, the preference for a uniform distribution is lower if additional information is provided on the potential recipients of an allocation. The above discussion suggests that factorial surveys are more useful in measuring attitudes toward justice that are not the result of routinized behavior in the form of applying an equality heuristic. Relative Importance: The Different Relevance of Individual Allocation Criteria The allocation criteria that underlie factual distribution processes often have different and, more important, competing normative implications. Normative conflicts therefore arise only as a result of the relative weighting of individual criteria, such as when considering the question of whether individuals’ formal education should be given more weight in determining their income than their seniority, their experience, or their actual job performance. Traditional item-based survey methods cannot clearly distinguish between individual determinants. Factorial surveys can make this distinction because the multifactorial design requires respondents to make “trade-offs” among various different dimensions and thus to weigh up individual characteristics against one another. This makes it possible to determine the influence of each named and varied attribute on the respondents’ response or judgment, as well as the relative importance of individual vignette dimensions. This may be done by considering standardized coefficients (Shepelak & Alwin, 1986) or by decomposing into the respective semi-partial explanation of variance (cf. Auspurg et al., 2013; Auspurg & Jäckle, 2012; Gatskova, 2013). Most of the existing research has investigated the relative importance of individual allocation criteria for individual incomes and household incomes, with a focus on two central questions. The first question is: Which of the individual characteristics of the income earners described in the vignettes and which of the situational factors are relevant for the justice evaluation? Here, the individual and situational characteristics are regarded as indicators of the general principles of justice described. The other central question is: Is it possible to identify differences among societies or among social groups? Generally speaking, the results of this research show that respondents actually weigh up several individual and situational factors against one another, and that they give the greatest relative weight to vignette dimensions that are directly related to employment (e.g., 7 Auspurg et al., 2013).7 Key factors in the decision making include occupation, human capital (education and experience), and individual performance: respondents believe that it would be just if the vignette individuals in more prestigious occupations who have more experience, a higher level of education, and above-average performance in the workplace earned more than others (Sauer et al., 2009). Thus, two distribution principles dominate in justice evaluations of earnings: first, the principle of proportionality as described in equity theory (Adams, 1965), because individual performance is seen as a central reward principle. Justice of earnings is constituted not by absolute equality but by proportional equality, that is, by the principle of equal pay for equal performance and unequal pay for unequal performance. Thus, contrary to the findings obtained by using the theoretical models advocated in behavioral economics (Fehr & Schmidt, 2006), individuals do not show “inequality aversion” when it comes to earnings; rather, it would be more accurate to say that they show “inequity aversion,” meaning that injustice is experienced, and is to be avoided, when individuals who have equal expenses achieve unequal outcomes or when individuals achieve equal outcomes with unequal expenses.8 However, because similar weight is given to the allocation category “occupation,” or prestige of the occupation, it is expected that for earnings to be considered just, they must also reflect differences in status. The results for Germany are shown in Figure 2; respondents make a clear differentiation of earnings by occupation (with factors such as level of education, performance, and experience used as control variables). A key observation in this respect is that respondents clearly expect that individuals in occupations with a higher social status and greater prestige should be entitled to a higher income, regardless of their current expenses and benefits.9 Thus, respondents believe that the allocation of income should be based on the principle of entitlement as well as on the proportionality principle. This finding is consistent with the results of a study Hermkens and Boerman (1989) conducted in the Netherlands which found that occupational prestige is the most important determinant for the level of just household income. 7 To compare the weight of individual dimensions in order to determine their relative weight, beta-coefficients (Alves & Rossi, 1978; Hermkens & Boerman, 1989), semi-partial explained variance (Auspurg et al., 2013; Gatskova, 2013), and t-values are considered (Liebig et al., 2010). 8 Incidentally, this inequity aversion has also been observed in non-human primates (see Brosnan, 2006). 9 The term “education” does not allow for a clear distinction because it can be understood not only as an indicator of individual productivity (proportionality principle) but also as a status characteristic (principle of entitlement). 8 Figure 3. A comparison of the relative importance of dimensions in vignette-based and item-based measurements Source: Liebig et al. (2010). The relative weight of the dimensions was measured using t-values. The fact that the studies considered here found that “status criteria” play an equally important role in the just allocation of income as “performance criteria” certainly also has to do with the differentiated form of the attitude measurement used in factorial surveys. If we compare the ranking of the different income criteria obtained directly using item-based survey with the ranking obtained indirectly using a factorial survey, the survey conducted in Germany in 2009 reveals significant differences. While the item-based survey leads to the conclusion that the proportionality principle is the most important criterion, factorial surveys show that the principle of entitlement (occupation) is the most important principle. The results also indicate that individual need is another important allocation criterion besides the two central principles of proportionality and entitlement: the number of children to be supported or marital status also constitute legitimate claims. Respondents think that individuals should be allocated a higher income if they have more family responsibilities, if they are the sole breadwinner, or if they have to support children. The above clearly shows that the evaluation of earnings is based on a combination and weighting of different principles of justice. This was the key assumption of the model proposed by Leventhal (1980): the justice of the earnings is evaluated on the basis of a combination of actual expenses (equity principle), position in the status and/or prestige structure of a society (principle of entitlement), and individual need (needs principle), with the last-mentioned principle given the least weight of all. The relative importance of the principles varies among different societies and among different social groups. This is not necessarily true of the role of the proportionality principle in the allocation of earnings (Auspurg et al., 2013; Cohn et al., 2000; Hysom & Fişek, 2011; Jasso & Meyersson Milgrom, 2008). A comparative study of Eastern European countries (Bulgaria, Hungary, Poland, Russia) and Western countries (France, Spain, United States) conducted by Cohn and colleagues (2000) found a clear preference for the equity principle in all of the countries under study. This finding is consistent with the results of a study of American and Turkish students 9 conducted by Hysom and Fişek (2011) and with those of a comparative study conducted by Jasso and Meyersson Milgrom (2008) in the United States and Sweden. Both of these studies showed that the preference for the equity principle was more pronounced among American respondents, whereas the Swedish respondents gave more weight to operational context conditions (industry, capital, location) in the allocation of earnings. Auspurg et al.’s (2013) comparative study of perceptions of income equity in Western Germany, Eastern Germany, and Ukraine found that age had a significant effect on performance orientation. Older respondents in Germany gave more weight to status criteria (principle of entitlement), whereas in Ukraine, older respondents gave more weight to the needs principle and younger respondents gave more weight to the performance principle. This serves to illustrate the third problem of attitudinal justice research, namely that different attitudes toward justice may be the result of different conditions of socialization (e.g., East vs. West) and different experiences with the processing of distributional conflicts. This will be the focus of the following section. Experience-Based Attitudes: Attitudes toward Justice and the Problem of Selective Sampling Many studies in the area of empirical justice research are based on laboratory experiments that use small and very homogeneous samples. These experiments involve surveys among students of psychology, economics, or the social sciences (e.g., Greenberg, 1993; Markovsky, 1988), which means that the results of these experiments are not necessarily generalizable. The same criticism leveled against all experimental studies—namely the problem of the external validity of results (Henrich et al., 2010; Jones, 2010)—can also be leveled against these experiments. However, in the field of justice attitude research, such criticism is much more problematic. There are theoretical reasons to believe (Liebig & Sauer, 2013; Vanberg, 2007), and there is empirical evidence that indicates (Almås et al., 2010; Keller et al., 2013; Meulemann & Birkelbach, 2001), that attitudes toward justice are not personality traits that remain stable and persistent through an individual’s life course. Thus, attitudes toward justice, and judgments of what is just, are “position effects” (Boudon, 1990) in that they reflect not only the specific interests but also the experiences individuals “accumulate” in different occupational and social positions over the life course (Liebig & Sauer, 2013, 2015). The local justice approach developed by Jon Elster in the 1990s (Elster, 1991a, 1991b, 1992) is explicitly based on this assumption. Owing to their experience in solving distribution problems, certain population groups have attitudes toward justice that are different from those of individuals who cannot draw on such experiences (Keller et al., 2013). This is particularly true of students because they are at a specific stage of their life course, have very similar sociostructural characteristics and social backgrounds, and little experience with social distribution conflicts and possible ways to resolve such conflicts. Experimental studies involving surveys among students thus capture only a small range of the spectrum of possible attitudes toward justice, namely the range of attitudes that are not based on working life experience and experience with the resolution of distribution conflicts. Thus, more than many other areas of research, justice research is faced with the challenge of finding ways to benefit from the advantages of experimental methods outside the laboratory and to examine heterogeneous populations. This is another problem factorial surveys can help overcome. Since they can be used to combine experimental methods and standardized surveys, factorial surveys can be embedded in traditional survey methods such as interviewer-based, online, or mail-based surveys (Sauer et al., 2009, 2011, 2014). One possible application is the determination of the weight of individual dimensions by individual groups of respondents. Such “cross-level interactions” have been observed by Schrenker (2009), who found that respondents with a high income gave significantly more weight to the income that vignette individuals had before reaching pension entitlement age when deciding what constitutes a just pension than did respondents with a low income. Auspurg et al. (2013) found that 10 respondents with a higher level of education gave more weight to occupational prestige when allocating earnings than did respondents with a lower level of education. Both of these examples show that justice judgments also reflect respondents’ personal interests and that experience with the resolution of distributional conflicts (or lack of it) plays a crucial role. This is supported by Buzea et al. (2013) and Gatskova (2013). Buzea et al. (2013) found significant differences between students and the rest of the population, with the former leaning more toward the equal-distribution principle. On the whole, the results reported here show that when larger segments of a population are to be surveyed, factorial surveys can help to overcome the problems that result from selective sampling and small sample size. Social Desirability: Justice as a Normative Concept Justice as a normative concept is always a part of normative discourses and of social conflicts that are covered by the media, especially when it comes to social problems of distribution (Brettschneider, 2007; Leisering, 2004; Volkmann, 2004). Attitudes toward justice that are related to such discourses are faced with the problem of socially desirable response behavior (Paulhus, 1984), meaning that respondents do not express what they really think or believe but instead respond in accordance with what they anticipate as the majority opinion or existing norms. Researchers find that this problem is particularly pronounced when conducting item-based surveys (King & Bruner, 2000) or relying on self-reports by individuals (Fisher & Katz, 2000). It is also one of the main problems in justice research. One example is the question of the pay gap between men and women. The general observation is that in item-based surveys, an individual’s gender should not be of any importance. Thus the general consensus is that gender-based wage discrimination— the so-called gender wage gap—is to be regarded as unjust. However, studies that use factorial surveys indicate that respondents do allocate different earnings to male and female workers and that they believe that men should earn more than women with otherwise identical characteristics. This finding was reported in one of the first studies to have used a factorial survey (i.e., Jasso & Rossi, 1977) and has been confirmed several times since (Auspurg et al., 2013; Jann, 2008; Jasso, 1994; Jasso & Webster, 1997, 1999; Sauer, 2014). The conclusion that can be drawn is that if several judgment-relevant dimensions are presented simultaneously, the tendency to give socially desirable responses—in this case, gender should not matter—is suppressed in the vignettes (Alexander & Becker, 1978; Mutz, 2011). Another example of the suppression of social-desirability effects by using factorial surveys is provided by a study on just taxation conducted by Liebig and Mau (2005), who used a regional sample in Germany to examine attitudes toward criteria of what respondents believed constituted a just tax system. They concluded that “most of the applicable principles of the current tax system are regarded as legitimate” (Liebig & Mau, 2005, p. 468, transl. from the German), that the principle of progressive taxation is generally regarded as just, but that “flat-tax” models were not consistent with the German respondents’ attitudes toward justice at the time the study was conducted. However, in the context of our own study, the difference between item-based and vignette-based surveys is more relevant. Respondents in an item-based survey were asked which of the dimensions presented should be relevant for taxation. “Marital status: Married” was one of the dimensions. The majority of respondents did not think that marital status should be considered as a dimension of taxation. The respondents were then asked to evaluate the rates of taxation of the fictitious taxpayers presented. “Married” was a level of the dimension “Marital status”—besides “cohabiting.” The results showed that the respondents thought it would be just to allocate a lower tax burden to the married fictitious taxpayers. Unlike in the item-based survey, which disregarded traditional ideas of marriage and family, in the vignette-based survey, the respondents lowered the tax burden on married vignette individuals. As before, there is good reason to believe that item- 11 based surveys tend to reflect a more socially desirable opinion. This is more evidence that factorial surveys are likely to help to avoid socially desirable response behavior (Auspurg et al., 2015). Causality: Scientific Explanation and Empirical Testing Empirical justice research that intends to provide not only mere descriptions of collective opinions and attitudes but also explanations on the basis of theoretically derived statements on causal connections is confronted with the same problem that all empirical social research has, namely that of modeling causal relationships and of sufficiently testing these relationships using empirical methods (Gangl, 2010; Opp, 2010). Traditional survey-based research, which uses cross-sectional data, is practically incapable of reliably identifying possible causal relationships, since correlations between two variables might just as well be caused by other variables that have not been measured. Due to the simultaneous measurement of theoretically assumed causes and effects, and due to the problem of unobserved heterogeneity, complex methods are needed to identify causal relationships post hoc (Gangl, 2010). Although longitudinal studies can be used to measure causes and effects separately in time, and appropriate methods (fixed-effects models) can be used to exclude the time- constant unobserved heterogeneity (Allison, 2009; Brüderl, 2010),10 the best way to test causal relationships is to use experimental methods (Falk & Heckman, 2009). The first reason is that the researcher can control the central independent variables (with causal effect) and that the experimental manipulations are randomly distributed among the participants (“randomization”). The second reason is that the laboratory allows for most confounding factors to be ruled out and thus for the isolated measurement of causal effects (Webster & Sell, 2007). However, it should be noted that the problems described above occur when specific populations are surveyed. Once again, factorial surveys can provide a way out of this dilemma. Ceteris paribus modeling of hypotheses enables direct testing of theoretical relationships, and the randomized assignment of vignettes to respondents ensures independence of vignette and respondent characteristics. This rules out third-variable effects. In the specific case of justice research this means that the survey instrument takes the context dependence of attitudes toward justice into consideration, given that the respondents are provided with an appropriate description of the allocation and distribution situation. In addition, random assignment makes it possible to test models that explain causal relationships (Liebig & Sauer, 2013, 2015). As this article has shown, factorial surveys can be used, if not to overcome the five key conceptual and methodological problems of attitude-based empirical research on justice entirely, then at least to reduce these problems to a certain extent. Conclusion In this paper, we discussed the reasons why factorial surveys are used in justice research, the specific methodological features of studies that use these surveys, and the key results such studies have provided in the past. Our findings confirm that an individual’s decision whether goods and burdens are allocated justly does indeed depend on certain characteristics of the recipients of such goods and burdens, as well as on situational conditions. Factorial surveys can help to reveal how respondents differentiate when judging whether something is just or not. Factorial survey studies also reveal consensus structures that relate to the application of the norms and principles that 10 There are some longitudinal studies in the area of justice research which use fixed-effect models, among others (cf. Liebig et al., 2012; Sauer & Valet, 2013; Schunck et al., 2013). 12 underlie them and in which not only specific cultural features but also specific sociopositional features play a role. A particular advantage of using factorial surveys is that they enable the determination of the exact amounts of specific rewards and burdens recipients would allocate. The studies on just earnings or household income, socially just welfare benefits, or fair taxation allow researchers to derive conclusions as to what a given society believes are equitable rewards and burdens. Factorial surveys thus have benefits that far exceed those of item-based surveys. Recent years have seen an increasing use of factorial surveys in empirical social research, as well as a growing number of studies that focus on the methodological issues of and the questions that arise in connection with this method. To the extent that the experiences and insights derived in this way will inform the practice of conducting factorial surveys, the conceptual and methodological approaches can be expected to be optimized further in the future. As regards justice research, the use of factorial surveys in international comparative studies appears to be particularly promising (e.g., Auspurg et al., 2013; Hysom & Fişek, 2011; Jasso & Meyersson Milgrom, 2008) because most of the research in this area has been descriptive in nature (cf. Liebig & Sauer, 2013, 2015) and for precisely this reason is incapable of identifying the causal mechanisms that underlie judgments in different societies and thus cannot clearly differentiate between cultural and positional influences. We also think that it would be worthwhile to continue to explore the potential of interactive survey methods. One question in justice research that has yet to be answered is what influence the distribution of earnings in a given society has on respondents’ assessments of their own earnings. Does the actual degree of income inequality have any influence at all, or do individuals usually evaluate their earnings without regard to societal distribution parameters? Factorial surveys may help to answer these questions because they offer the opportunity to vary distribution contexts and to test the causal effects of “structural” parameters on individual justice judgments. However, a question that remains largely unresolved is whether factorial surveys enable more reliable behavior predictions in the context of justice research (cf. Eifler, 2010). This is where we see the greatest potential for development in this research field. References Adams, J. S. (1965). Inequity in Social Exchange. Advances in Experimental Social Psychology, 2, 267–299. Alexander, C. S., & Becker, H. J. (1978). The Use of Vignettes in Survey Research. Public Opinion Quarterly, 42(1), 93–104. Allison, P. D. (2009). Fixed Effects Regression Models. Thousand Oaks, CA; London; New Delhi; Singapore: SAGE. Almås, I., Cappelen, A. W., Sørensen, E. Ø., & Tungodden, B. (2010). Fairness and the Development of Inequality Acceptance. Science, 328(5982), 1176–1178. Alves, W. M., & Rossi, P. H. (1978). Who Should Get What? Fairness Judgments of the Distribution of Earnings. American Journal of Sociology, 84(3), 541–564. Auspurg, K., & Jäckle, A. (2012). First equals most important? Order effects in vignette-based measurement. ISER Working Paper Series, no. 2012-01. Colchester: Institute for Social and Economic Research. Auspurg, K., Gatskova, K., & Hinz, T. (2013). Vorstellungen von Lohngerechtigkeit in West- und Ostdeutschland und in der Ukraine. WSI-Mitteilungen, 66(2), 77–88. Auspurg, K., Hinz, T., & Sauer, C. (2013). Status Construction or Statistical Discrimination? New Insights on Fair Earnings from a Factorial Survey Study. Paper presented at the 108th Annual Meeting of the American Sociological Association, New York, NY. Auspurg, K., Hinz, T., Liebig, S., & Sauer, C. (2015). The Factorial Survey as a Method for Measuring Sensitive Issues. In U. Engel, B. Jann, P. Lynn, A. Scherpenzeel, & P. Sturgis 13 (Eds.), Improving Survey Methods: Lessons from Recent Research (pp. 137–150). New York, NY; Hove: Routledge. Beck, M., & Opp, K.-D. (2001). Der faktorielle Survey und die Messung von Normen. Kölner Zeitschrift für Soziologie und Sozialpsychologie, 53(2), 283–306. Boudon, R. (1990). Subjektive Rationalität und die Theorie der Ideologie. In H. Haferkamp (Ed.), Sozialstruktur und Kultur (pp. 384–414). Frankfurt am Main: Suhrkamp. Brettschneider, A. (2007). Jenseits von Leistung und Bedarf: Zur Systematisierung sozialpolitischer Gerechtigkeitsdiskurse. Zeitschrift für Sozialreform, 53(4), 365–389. Brosnan, S. F. (2006). Nonhuman Species’ Reactions to Inequity and their Implications for Fairness. Social Justice Research, 19(2), 153–185. Brüderl, J. (2010). Kausalanalyse mit Paneldaten. In C. Wolf, & H. Best (Eds.), Handbuch der sozialwissenschaftlichen Datenanalyse (pp. 963–994). Wiesbaden: VS Verlag für Sozialwissenschaften/Springer Fachmedien. Buzea, C., Mesesan-Schmitz, L., & van de Vijver, F. J. R. (2013). Reward-Allocation Judgments in Romania: A Factorial Survey Approach. Revista de cercetare şi intervenţie socială, 40, 107–123. Cohn, E. S., White, S. O., & Sanders, J. (2000). Distributive and Procedural Justice in Seven Nations. Law and Human Behavior, 24(5), 553–579. Deutsch, M. (1985). Distributive Justice: A Social-Psychological Perspective. New Haven, CT: Yale University Press. Eifler, S. (2010). Validity of a Factorial Survey Approach to the Analysis of Criminal Behavior. Methodology: European Journal of Research Methods for the Behavioral and Social Sciences, 6(3), 139–146. Elster, J. (1991a). Local justice and interpersonal comparisons. In J. Elster, & J. E. Roemer (Eds.), Interpersonal Comparisons of Well-Being (pp. 98–126). Cambridge; New York, NY; Melbourne: Cambridge University Press. Elster, J. (1991b). Local justice: How institutions allocate scarce goods and necessary burdens. European Economic Review, 35(2–3), 273–291. Elster, J. (1992). Local justice: How Institutions Allocate Scarce Goods and Necessary Burdens. New York, NY: Russell Sage Foundation. Falk, A., & Heckman, J. J. (2009). Lab Experiments Are a Major Source of Knowledge in the Social Sciences. Science, 326(5952), 535–538. Fehr, E., & Schmidt, K. M. (2006). The Economics of Fairness, Reciprocity and Altruism – Experimental Evidence and New Theories. In S.-C. Kolm, & J. M. Ythier (Eds.), Handbook of the Economics of Giving, Altruism and Reciprocity: Volume 1: Foundations (pp. 615– 691). Amsterdam; Oxford: North-Holland. Fisher, R. J., & Katz, J. E. (2000). Social-desirability bias and the validity of self-reported values. Psychology and Marketing, 17(2), 105–120. Gangl, M. (2010). Causal Inference in Sociological Research. Annual Review of Sociology, 36(1), 21–47. Gatskova, K. (2013). Distributive justice attitudes in Ukraine: Need, desert or social minimum? Communist and Post-Communist Studies, 46(2), 227–241. Greenberg, J. (1993). Stealing in the Name of Justice: Informational and Interpersonal Moderators of Theft Reactions to Underpayment Inequity. Organizational Behavior and Human Decision Processes, 54(1), 81–103. Hegtvedt, K. A. (2006). Justice Frameworks. In P. J. Burke (Ed.), Contemporary Social Psychological Theories (pp. 46–69). Stanford, CA: Stanford University Press. Henrich, J., Heine, S. J., & Norenzayan, A. (2010). The weirdest people in the world? Behavioral and Brain Sciences, 33(2–3), 61–83. Hermkens, P. J., & Boerman, F. (1989). Consensus With Respect to the Fairness of Incomes: Differences Between Social Groups. Social Justice Research, 3(3), 201–215. 14 Hysom, S. J., & Fişek, M. H. (2011). Situational determinants of reward allocation: The equity– equality equilibrium model. Social Science Research, 40(4), 1263–1285. Jann, B. (2008). Lohngerechtigkeit und Geschlechterdiskriminierung: Evidenz aus einem Vignetten-Experiment. In B. Jann (Ed.), Erwerbsarbeit, Einkommen und Geschlecht: Studien zum Schweizer Arbeitsmarkt (pp. 107–126). Wiesbaden: VS Verlag für Sozialwissenschaften. Jasso, G. (1978). On the Justice of Earnings: A New Specification of the Justice Evaluation Function. American Journal of Sociology, 83(6), 1398–1419. Jasso, G. (1980). A New Theory of Distributive Justice. American Sociological Review, 45(1), 3– 32. Jasso, G. (1994). Assessing Individual and Group Differences in the Sense of Justice: Framework and Application to Gender Differences in the Justice of Earnings. Social Science Research, 23(4), 368–406. Jasso, G. (2006). Factorial Survey Methods for Studying Beliefs and Judgments. Sociological Methods & Research, 34(3), 334–423. Jasso, G. (2007). Studying Justice: Measurement, Estimation, and Analysis of the Actual Reward and the Just Reward. In K. Törnblom, & R. Vermunt (Eds.), Distributive and Procedural Justice: Research and Social Applications (pp. 225–253). London; Burlington, VT: Ashgate. Jasso, G., & Meyersson Milgrom, E. M. (2008). Distributive Justice and CEO Compensation. Acta Sociologica, 51(2), 123–143. Jasso, G., & Rossi, P. H. (1977). Distributive Justice and Earned Income. American Sociological Review, 42(4), 639–651. Jasso, G., & Webster, M. J. (1997). Double Standards in Just Earnings for Male and Female Workers. Social Psychology Quarterly, 60(1), 66–78. Jasso, G., & Webster, M. J. (1999). Assessing the Gender Gap in Just Earnings and Its Underlying Mechanisms. Social Psychology Quarterly, 62(4), 367–380. Jasso, G., & Wegener, B. (1997). Methods for Empirical Justice Analysis: Part 1. Framework, Models, and Quantities. Social Justice Research, 10(4), 393–430. Jones, D. (2010). A WEIRD View of Human Nature Skews Psychologists’ Studies. Science, 328(5986), 1627. Keller, M., Gummerum, M., Canz, T., Gigerenzer, G., & Takezawa, M. (2013). The Is And Ought of Sharing: The Equality Heuristic Across The Lifespan. In R. Hertwig, U. Hoffrage, & ABC Research Group (Eds.), Simple Heuristics in a Social World (pp. 171–198). New York, NY: Oxford University Press. King, M. F., & Bruner, G. C. (2000). Social desirability bias: A neglected aspect of validity testing. Psychology and Marketing, 17(2), 79–103. Leisering, L. (2004). Paradigmen sozialer Gerechtigkeit: Normative Diskurse im Umbau des Sozialstaats. In S. Liebig, H. Lengfeld & S. Mau (Eds.), Verteilungsprobleme und Gerechtigkeit in modernen Gesellschaften (pp. 29–68). Frankfurt am Main: Campus. Leventhal, G. S. (1980). What Should Be Done With Equity Theory? New Approaches to the Study of Fairness in Social Relationships. In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social Exchange: Advances in Theory and Research (pp. 27–55). New York, NY: Plenum Press. Liebig, S., & Mau, S. (2002). Einstellungen zur sozialen Mindestsicherung: Ein Vorschlag zur differenzierten Erfassung normativer Urteile. Kölner Zeitschrift für Soziologie und Sozialpsychologie, 54(1), 109–134. Liebig, S., & Mau, S. (2005). Wann ist ein Steuersystem gerecht? Einstellungen zu allgemeinen Prinzipien der Besteuerung und zur Gerechtigkeit der eigenen Steuerlast. Zeitschrift für Soziologie, 34(6), 468–491. Liebig, S., & Sauer, C. (2013). Soziologische Gerechtigkeitsanalyse: Überlegungen zur theoretischen Fundierung eines Forschungsfeldes. Analyse und Kritik, 35(2), 371–394. 15 Liebig, S., & Sauer, C. (2015). Sociology of Justice. In C. Sabbagh & M. Schmitt (Eds.), Handbook of Social Justice Theory and Research. New York: Springer. Liebig, S., Sauer, C., & Schupp, J. (2012). The justice of earnings in dual-earner households. Research in Social Stratification and Mobility, 30(2), 219–232. Liebig, S., Sauer, C., May, M., Hinz, T., Auspurg, K., Joos, A., & Schwarz, J. (2010). Bericht zur Studie Einkommensgerechtigkeit in Deutschland. Bielefeld: Bielefeld University/Konstanz: University of Konstanz. Markovsky, B. (1988). Injustice and Arousal. Social Justice Research, 2(3), 223–233. Markovsky, B., & Eriksson, K. (2012). Comparing Direct and Indirect Measures of Just Rewards. Sociological Methods & Research, 41(1), 199–216. Messick, D. M. (1993). Equality as a decision heuristic. In B. A. Mellers, & J. Baron (Eds.), Psychological Perspectives on Justice: Theory and Applications (pp. 11–31). Cambridge; New York, NY; Oakleigh, Vic.: Cambridge University Press. Meulemann, H., & Birkelbach, K. (2001). Biographische Erfahrungen und politische Einstellungen zwischen Jugend und Lebensmitte: Die Entwicklung von Wertansprüchen an die Politik bei ehemaligen Gymnasiasten im 16., 30. und 43. Lebensjahr zwischen 1969 – 1997. Politische Vierteljahresschrift, 42(1), 30–50. Mutz, D. C. (2011). Population-Based Survey Experiments. Princeton, NJ: Princeton University Press. Opp, K.-D. (2010). Kausalität als Gegenstand der Sozialwissenschaften und der multivariaten Statistik. In C. Wolf, & H. Best (Eds.), Handbuch der sozialwissenschaftlichen Datenanalyse (pp. 9–38). Wiesbaden: VS Verlag für Sozialwissenschaften/Springer Fachmedien. Paulhus, D. L. (1984). Two-component models of socially desirable responding. Journal of Personality and Social Psychology, 46(3), 598–609. Rawls, J. (1975). Eine Theorie der Gerechtigkeit. Frankfurt am Main: Suhrkamp. Roch, S. G., Lane, J. A. S., Samuelson, C. D., Allison, S. T., & Dent, J. L. (2000). Cognitive Load and the Equality Heuristic: A Two-Stage Model of Resource Overconsumption in Small Groups. Organizational Behavior and Human Decision Processes, 83(2), 185–212. Rossi, P. H., & Anderson, B. (1982). The factorial survey approach: an introduction. In P. H. Rossi, & S. L. Nock (Eds.), Measuring Social Judgements: The Factorial Survey Approach (pp. 15–67). Beverly Hills, CA: Sage. Runciman, W. G. (1966). Relative Deprivation and Social Justice: A Study of Attitudes to Social Inequality in Twentieth-Century England. London: Routledge. Sauer, C. (2014). A Just Gender Pay Gap? Three Factorial Survey Studies On Justice Evaluations Of Earnings for Male and Female Employees. SFB 882 Working Paper Series, no. 29. Bielefeld: DFG Research Center (SFB) 882 From Heterogeneities to Inequalities. Sauer, C., Auspurg, K., Hinz, T., & Liebig, S. (2011). The Application of Factorial Surveys in General Population Samples: The Effects of Respondent Age and Education on Response Times and Response Consistency. Survey Research Methods, 5(3), 89–102. Sauer, C., Auspurg, K., Hinz, T., Liebig, S., & Schupp, J. (2009). Die Bewertung von Erwerbseinkommen – Methodische und inhaltliche Analysen zu einer Vignettenstudie im Rahmen des SOEP-Pretest 2008. SOEPpapers on Multidisciplinary Panel Data Research, no. 189. Berlin: DIW Berlin, The German Socio-Economic Panel (SOEP). Sauer, C., Auspurg, K., Hinz, T., Liebig, S., & Schupp, J. (2014). Method Effects in Factorial Surveys: An Analysis of Respondents’ Comments, Interviewers’ Assessments, and Response Behavior. SOEPpapers on Multidisciplinary Panel Data Research, no. 629 Berlin: DIW Berlin, The German Socio-Economic Panel (SOEP). Sauer, C., & Valet, P. (2013). Less is Sometimes More: Consequences of Overpayment on Job Satisfaction and Absenteeism. Social Justice Research, 26(2), 132–150. Schaeffer, N. C. (1990). Principles of Justice in Judgments About Child Support. Social Forces, 69(1), 157–179. 16 Schrenker, M. (2009). Warum fast alle das deutsche Rentensystem ungerecht finden, aber trotzdem nichts daran ändern möchten: Die Wahrnehmung gerechter Renten und die Akzeptanz von Rentenreformen. Kölner Zeitschrift für Soziologie und Sozialpsychologie, 61(2), 259–282. Schunck, R., Sauer, C., & Valet, P. (2013). Macht Ungerechtigkeit krank? Gesundheitliche Folgen von Einkommens(un)gerechtigkeit. WSI-Mitteilungen, 66(8), 553–561. Shepelak, N. J., & Alwin, D. F. (1986). Beliefs about Inequality and Perceptions of Distributive Justice. American Sociological Review, 51(1), 30–46. Törnblom, K. Y. (1992). The social psychology of distributive justice. In K. R. Scherer (Ed.), Justice: Interdisciplinary Perspectives (pp. 177–236). Cambridge; New York, NY: Cambridge University Press. Vanberg, V. J. (2007). Marktwirtschaft und Gerechtigkeit – Idee und Kritik der sozialen Gerechtigkeit im Konzept der Sozialen Marktwirtschaft. In S. Empter, & R. B. Vehrkamp (Eds.), Soziale Gerechtigkeit – eine Bestandsaufnahme (pp. 25–50). Gütersloh: Bertelsmann-Stiftung. Volkmann, U. (2004). Die journalistische Konstruktion gerechter Ungleichheiten. In S. Liebig, H. Lengfeld, & S. Mau (Eds.), Verteilungsprobleme und Gerechtigkeit in modernen Gesellschaften (pp. 297–328). Frankfurt am Main: Campus. Wallander, L. (2009). 25 years of factorial surveys in sociology: A review. Social Science Research, 38(3), 505–520. Webster, M., & Sell, J. (2007). Theory and Experimentation in the Social Sciences. In W. Outhwaite, & S. Turner (Eds.), The SAGE Handbook of Social Science Methodology (pp. 190–207). London; Thousand Oaks, CA; New Delhi; Singapore: SAGE. Wegener, B. (1987). The illusion of distributive justice. European Sociological Review, 3(1), 1–13. 17 1 Appendix Table 1. Distributive justice: An overview of factorial surveys Note: Publications have been selected on the basis of the procedure described in Footnote 3. Jasso and Rossi (1977), Jasso (1994), and Jasso & Webster (1997) are based on the same sample. NV = Number of vignettes used; NB = Number of respondents; NV/NB = Number of vignettes per respondent; ? = Exact number not reported. The column “Dimensions” is read as follows: e.g., 5 (2 × 34) means 5 dimensions with 1 × 2 levels and 4 × 3 levels. Sorted by topic and year. Characteristics that were used as dependent variables, had no influence, or were not examined in the article are given in brackets. Reference Object of investigation Relevant characteristics Dimensions (levels) NB NV NV/NB Answering scale Vignette sampling Respondent population Analysis Countries Alves & Rossi (1978) Earned income (individual) Earned Income, Occupational Status, Marital Status, Number of Children, Education, Taxation; [Gender], [Ethnicity] 8 (52 × 2 × 4 × 7 × ? × ? × ? × ?) 522 ? 50 9-point scale Random General population OLS regression USA Jasso (1994) Earned income (individual) Gender; [Relational Status], [Earned Income], [Education], [Number of Children], [Occupational Status] 6 (2² × 7 × 10 × 99 × 15) 200 600 60 9-point scale Random General population Two-stage estimation procedure USA Jasso &Webster (1997) Earned income (individual) Gender; [Relational Status], [Earned Income], [Education], [Number of Children], [Occupational Status] 6 (2² × 7 × 10 × 99 × 15) 200 100 60 9-point scale Random General population OLS regression USA Jasso & Webster (1999) Earned income (individual) Age, Education, Gender, Earned Income; [Occupational Status] 5 (2 × 10² × 4 × 15) 377 30 10 Magnitude scale Random Students Robust regression, respondent- specific regression, and vignette-specific regression USA Cohn et al. (2000) Earned income (individual) Effort (Certificate of Employment, Willingness to Accept Occupational Changes/Salary Cuts), Need (Labor Market Situation, Marital Status); [Voice], [Impartiality of the Company] 4 (42); 5 (5²) 831; 786; 824; 765; 762; 775; 810 32; 1000 2 10-point scale Complete design; random General population OLS regression Bulgaria, Hungary, Poland, Russia, France, Spain, USA 18 Jann (2008) Earned income (individual) Gender, Need (Single Parent, Narrow Finances), Effort (Engagement, Complies with Performance Requirements) 3 (3³) 531 8 1 11-point scale Complete design General population OLS regression Switzerland Jasso & Meyersson Milgrom (2008) Earned income (individual) Age, Gender, Job Experience, Company Site, Industrial Sector, Education, Financial Assets of the Company; [Earned Income] 8 (11 × 2 × 15 × 16× 3 × 4 × 272) 47; 36 80 40 Magnitude scale Random Students Multilevel models and respondent- specific regression USA, Sweden Sauer et al. (2009) Earned income (individual) Earned Income, Occupational Status, Education, Effort, Marital Status, Number of Children, Gender, Situation of the Company, Company Size; [Age] 10 (2 × 35 × 4 × 5 × 10²) 1066 240 24 Magnitude scale Fractionalized design General population Robust regression Germany Hysom & Fişek (2011) Earned income (individual) Kind of Task, Co-Worker Relations, Kind of Occupation; [Gender], [Occupational Status], [Age], [Education], [Occupational Experience], [Group Size] 9 (24 × 35) 295; 314 8 8 Allocation of relative proportion of the reward Selective choice of vignette dimensions on the basis of pretests Students OLS regression USA, Turkey Auspurg et al. (2013) Earned income (individual) Germany (West): Occupational Status, Effort, Education, Marital Status, Gender, Age, Number of Children; [Situation of the Company], [Form of Company], [Earned Income] Germany (East): Occupational Status, Effort, Education, Marital Status, Number of Children, Age, Gender; [Situation of the Company], [Form of Company], [Earned Income] Ukraine: Number of Children, Effort, Occupational Status, Marital Status, Gender, Education, Age; [Situation of the Company], [Form of the Company], [Earned Income] 10 (Germany: 4 × 2 × 35 × 10² × 5; Ukraine: 4 × 2² × 34 × 10² × 5) 944; 1797 240 24 100-point scale Fractionalized design General population Robust regression Germany, Ukraine Buzea et al. (2013) Earned income (individual) Contribution, Occupational Experience, Familiarity with the task, Need (Number of Children), Future Interactions, Age; [Gender] 7 (2 × 8 × 35) 200 8000 40 Percentage pay increase Random Students Multilevel models Romania 19 Gatskova (2013) Earned income (individual) Older Generation: Number of Children, Effort, Occupational Status, Relational Status, Gender, Form of the Company, Age; [Education], [Earned Income], [Financial Situation of the Company] Younger Generation: Number of Children, Effort, Occupational Status, Gender, Relational Status, Form of the Company, Age; [Education], [Earned Income], [Financial Situation of the Company] 10 (2 × 36 × 6 × 10²) 12 11-point scale Fractionalized design General population Robust regression Ukraine Jasso & Rossi (1977) Earned income (household) Multiple Person Households: Education (Husband), Occupational Status (Husband & Wife), Marital Status, Family Income; [Education (Wife)], [Number of Children] Multiple Person Households: Gender, Relational Status, Earned Income, Education, Number of Children, Occupational Status 6 (2² × 7 × 10 × 99 × 15) 200 600 60 9-point scale Random General population OLS regression USA Shepelak & Alwin (1986) Earned income (household) Single Households: Ethnicity, Education, Size of Family, Vocational Training, Gender, Occupational Prestige Family Household: Education (Husband & Wife), Vocational Training, Gender, Occupational Status of Husband & Wife; [Family Size] 6 328 135 15 Monetary units Selective choice General population OLS regression USA Hermkens & Boerman (1989) Earned income (household) Occupational Status, Number of Employed Persons in Household, Number of Children, Occupational Effort; [Gender], [Age] 6 (2² × 27 × 50 × ? × ?) 795 4200; 8400 5; 10 Monetary units Random General population OLS regression Netherlands Schaeffer (1990) Child support Earned Income Father, Earned Income Mother, Marital Status Father, Marital Status Mother, 6 (23 × 32 × 5) 1003 3 Monetary units Random General population Tobit regression USA 20 Number of Children [Occupational Status Father] Liebig & Mau (2002) Minimum collateral Number of Children, Occupational Status, Age, Occupational Position, Amount of State Transfers; [Reason for Lay-Off], [Amount of Income Supplement], [Gender] 8 (22 × 32 × 1 × 4 × 6 × 5) 121 48 24 Magnitude scale Random General population Robust regression Germany Liebig & Mau (2005) Taxes Earned Income, Number of Children, Amount of Inheritance, Marital Status; [Social Engagement], [Age], [Gender], [Occupational Status] 8 (2² × 3 × 4² × 5 × 19 × 33 ) 586 20 20 Magnitude scale Random General population Robust regression Germany Schrenker (2009) Pensions Amount of last Income, Years of Professional Experience, Number of Children, Combined Supply of Partner, Gender; [Amount of Monthly Pension] 6 (22 × 11 × 5 × 6 × 10) 2690 250 25 Monetary units and 11- point scale Random General population Random coefficient models and OLS models (including beta- values and t- values) Germany 21 Previously published SFB 882 Working Papers: Diewald, Martin / Faist, Thomas (2011): From Heterogeneities to Inequalities: Looking at Social Mechanisms as an Explanatory Approach to the Generation of Social Inequalities, SFB 882 Working Paper Series No. 1, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Bielefeld. Busch, Anne (2011): Determinants of Occupational Gender Segregation: Work Values and Gender (A)Typical Occupational Preferences of Adolescents, SFB 882 Working Paper Series No. 2, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Faist, Thomas (2011): Multiculturalism: From Heterogeneities to Social (In)Equalities, SFB 882 Working Paper Series No. 3, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Amelina, Anna (2012): Jenseits des Homogenitätsmodells der Kultur: Zur Analyse von Transnationalität und kulturellen Interferenzen auf der Grundlage der hermeneutischen Wissenssoziologie, SFB 882 Working Paper Series No. 4, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Osmanowski, Magdalena / Cardona, Andrés (2012): Resource Dilution or Resource Augmentation? Number of Siblings, Birth Order, Sex of the Child and Frequency of Mother’s Activities with Preschool Children, SFB 882 Working Paper Series No. 5, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Amelina, Anna / Bilecen, Başak / Barglowski, Karolina / Faist, Thomas (2012): Ties That Protect? The Significance of Transnationality for the Distribution of Informal Social Protection in Migrant Networks, SFB 882 Working Paper Series No. 6, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Alemann, Annette von / Beaufaÿs, Sandra / Reimer, Thordis (2012): Gaining Access to the Field of Work Organizations with the Issue of “Work-Family-Life Balance” for Fathers, SFB 882 Working Paper Series No. 7, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B5, Bielefeld. Kaiser, Till (2012): Haben gebildetere Mütter gewissenhaftere Kinder? Soziale Herkunft und Persönlichkeitsentwicklung im frühkindlichen Alter, SFB 882 Working Paper Series No. 8, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Gusy, Christoph / Müller, Sebastian (2012): Social Construction of Heterogeneity Indicators and their Relationship to Law. The Example of Guiding Principles in Immigration Law, SFB 882 Working Paper Series No. 9, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C4, Bielefeld. Liebig, Stefan / May, Meike / Sauer, Carsten / Schneider, Simone / Valet, Peter (2012): Inequality Preferences in Interviewer- and Self-Administered Interviews, SFB 882 Working Paper Series No. 10, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Fauser, Margit / Voigtländer, Sven / Tuncer, Hidayet / Liebau, Elisabeth / Faist, Thomas / Razum, Oliver (2012): Transnationality and Social Inequalities of Migrants in Germany, SFB 882 Working Paper Series No. 11, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C1, Bielefeld. Freistein, Katja / Koch, Martin (2012): Global Inequality and Development. Textual Representations of the World Bank and UNDP, SFB 882 Working Paper Series No. 12, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Golsch, Katrin (2013): Shall I Help You My Dear? Examining Variations in Social Support for Career Advancement within Partnerships, SFB 882 Working Paper Series No. 13, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Bröckel, Miriam / Busch, Anne / Golsch, Katrin (2013): Headwind or Tailwind – Do Partner’s Resources Support or Restrict a Promotion to a Leadership Position in Germany?, SFB 882 Working Paper Series No. 14, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Cardona, Andrés (2013): Closing the Group or the Market? The Two Sides of Weber’s Concept of Closure and Their Relevance for the Study of Intergroup Inequality, SFB 882 Working Paper Series No. 15, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Friedhoff, Stefan / Meier zu Verl, Christian / Pietsch, Christian / Meyer, Christian / Vompras, Johanna / Liebig, Stefan (2013): Social Research Data. Documentation, Management, and Technical Implementation at SFB 882, SFB 882 Working Paper Series, No. 16, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Project “Information and Data Infrastructure” (INF), Bielefeld. Reinecke, Jost / Stemmler, Mark / Sünkel, Zara / Schepers, Deborah / Weiss, Maren / Arnis, Maria / Meinert, Julia / Kucur-Uysal, Burcu / Pöge, Andreas / Wallner, Susanne / Wittenberg, Jochen (2013): The Development of Deviant and Delinquent Behavior over the Life Course in the Context of Processes of Social Inequalities, SFB 882 Working Paper Series No. 17, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A2, Bielefeld. Hense, Andrea / Edler, Susanne / Liebig, Stefan (2013): Individual Determinants of Recalls, SFB 882 Working Paper Series No. 18, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B4, Bielefeld. Bilecen, Başak (2013): Analyzing Informal Social Protection Across Borders: Synthesizing Social Network Analysis with Qualitative Interviews, SFB 882 Working Paper Series No. 19, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Schunck, Reinhard / Abendroth, Anja-Kristin / Diewald, Martin / Melzer, Silvia Maja / Pausch, Stephanie (2013): What do Women and Men Want? Investigating and Measuring Preference Heterogeneity for Life Outcomes using a Factorial Survey, SFB 882 Working Paper Series No. 20, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B3, Bielefeld. Sauer, Carsten / Valet, Peter / Liebig, Stefan (2013): The Impact of Within and Between Occupational Inequalities on People’s Justice Perceptions Towards their Own Earnings, SFB 882 Working Paper Series No. 21, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Schneider, Simone / Valet, Peter (2013): Social Comparison Orientations and their Consequences for Justice Perceptions of Earnings, SFB 882 Working Paper Series No. 22, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Cardona, Andrés (2013): The Programmatic Bias in the Discussion on Social Mechanisms in Sociology, SFB 882 Working Paper Series No. 23, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Hille, Adrian / Schupp, Jürgen (2013): How Learning a Musical Instrument Affects the Development of Skills, SFB 882 Working Paper Series No. 24, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Faist, Thomas (2014): "We are all Transnationals now": The Relevance of Transnationality for Understanding Social Inequalities, SFB 882 Working Paper Series No. 25, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C1, Bielefeld. Lohmann, Henning / Ferger, Florian (2014): Educational Poverty in a Comparative Perspective: Theoretical and Empirical Implications, SFB 882 Working Paper Series No. 26, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A5, Bielefeld. Freistein, Katja / Koch, Martin (2014): The Effects of Measuring Poverty – Indicators of the World Bank, SFB 882 Working Paper Series No. 27, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Andernach, Björn / Schunck, Reinhard (2014): Investigating the Feasibility of a Factorial Survey in a CATI, SFB 882 Working Paper Series No. 28, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B3, Bielefeld. Sauer, Carsten (2014): A Just Gender Pay Gap? Three Factorial Survey Studies on Justice Evaluations of Earnings for Male and Female Employees, SFB 882 Working Paper Series No. 29, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Berger, Johannes (2014): Dringend erforderlich: eine stärker vereinheitlichte soziologische Ungleichheitsforschung, SFB 882 Working Paper Series No. 30, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project Z, Bielefeld. Karsch, Anna (2014): Geschlechtstypische Unterschiede in den Berufspräferenzen deutscher Jugendlicher, SFB 882 Working Paper Series No. 31, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Barglowski, Karolina (2014): Social Classifications and Inequalities: Ideologies of Mobility, Care and Work in Transnational Families, SFB 882 Working Paper Series No. 32, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C3, Bielefeld. Sauer, Carsten / Valet, Peter / Liebig, Stefan (2014): Ungleichheiten am Arbeitsmarkt und die Gerechtigkeitswahrnehmung von Erwerbseinkommen, SFB 882 Working Paper Series No. 33, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Dawid, Herbert / Harting, Philipp / Neugart, Michael (2014): Cohesion Policy and Inequality Dynamics: Insights from a Heterogeneous Agents Macroeconomic Model, SFB 882 Working Paper Series No. 34, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A4, Bielefeld. Liebig, Stefan / May, Meike / Sauer, Carsten / Schneider, Simone / Peter Valet (2014): The Effect of Interviewer Presence on Inequality Preferences, SFB 882 Working Paper Series No. 35, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Cardona, Andrés / Diewald, Martin (2014): Opening the Black Box of Primary Effects: Relative Risk Aversion and Maternal Time Investments in Preschool Children, SFB 882 Working Paper Series No. 36, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A1, Bielefeld. Fehl, Caroline / Freistein, Katja (2014): Institutional Mechanisms of Global Inequality Reproduction, SFB 882 Working Paper Series No. 37, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Freistein, Katja (2014): Are there any Global Imaginaries of Equality and Democracy in Discussions about Inequality? SFB 882 Working Paper Series No. 38, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project C5, Bielefeld. Meinert, Julia (2014): Selection into criminogenic contexts by personal heterogeneity and its effects on delinquency, SFB 882 Working Paper Series No. 39, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A2, Bielefeld. Schepers, Debbie (2014): Social Inequalities as Causes of the Causes of Juvenile Delinquency. Heterogeneities in the Context of Situational Action Theory, SFB 882 Working Paper Series No. 40, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A2, Bielefeld. Abendroth, Anja-Kristin / Pausch, Stephanie / Böhm, Sebastian (2014): German Fathers and Their Preference to Reduce Working Hours to Care for Their Children, SFB 882 Working Paper Series No. 41, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Bürmann, Marvin: Determinanten beruflichen Aufstiegs (2014): Der Einfluss von Unterstützung durch Kollegen und Vorgesetzte. Eine Sekundäranalyse anhand der Daten des Sozio-oekonomischen Panels. SFB 882 Working Paper Series No. 42, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A3, Bielefeld. Rosenbohm, Sophie / Gebel, Tobias / Hense, Andrea (2015): Potenziale und Voraussetzungen für die Sekundäranalyse qualitativer Interviewdaten in der Organisationsforschung. SFB 882 Working Paper Series No. 43, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project B4/INF, Bielefeld. Schneider, Simone / Shamon, Hawal (2015): How Others' Earnings influence our Justice Perceptions. Studying the Effects of Income Distribution and Social Position on Reflexive Justice Evaluations among German Employees. SFB 882 Working Paper Series No. 44, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Kruphölter, Sonja / Sauer, Carsten / Valet, Peter (2015): Occupational gender segregation and gender differences in justice evaluations. SFB 882 Working Paper Series No. 45, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Liebig, Stefan / Sauer, Carsten / Hülle, Sebastian (2015): Why is justice regarded as so important? Theoretical considerations and an empirical test of a fundamental question. SFB 882 Working Paper Series No. 46, DFG Research Center (SFB) 882 From Heterogeneities to Inequalities, Research Project A6, Bielefeld. Foliennummer 1 Liebig-Sauer-Friedhoff-2015.pdf Introduction Contextual Information: Complexity of Distribution Processes Conclusion References 1 Appendix 10-point scale 
work_e2yhm5n3vjayjoktid3w3h6d6m	----	Juvenile Justice in Mexico Laws 2014, 3, 580–597; doi:10.3390/laws3030580 laws ISSN 2075-471X www.mdpi.com/journal/laws/ Article Juvenile Justice in Mexico Martha Frías Armenta * and Livier Gómez Martínez Department of Law, Universidad de Sonora, Rosales y Transversal s/n Col, Centro, Hermosillo, Sonora 83246, Mexico; E-Mail: liv_gomez@hotmail.com * Author to whom correspondence should be addressed; E-Mail: marthafrias@sociales.uson.mx; Tel.: +52-662-259-2170; Fax: +52-662-259-2171. Received: 18 July 2014; in revised form: 15 August 2014 / Accepted: 18 August 2014 / Published: 26 August 2014 Abstract: The first tribunal in Mexico was established in the central state of San Luis Potosi in 1926. The Law Regarding Social Prevention and Juvenile Delinquency for the Federal District and Mexican territories was promulgated in 1928. In 2005, Article 18 of the Mexican Constitution was modified to establish a comprehensive system (“Sistema Integral de justicia” in Spanish) of justice for juveniles between 12 and 18 years old who had committed a crime punishable under criminal law. Its objective was to guarantee juveniles all the due process rights established for adults, in addition to the special ones recognized for minors. The constitutional reform also provides a framework that includes special tribunals as well as alternative justice options for juveniles. With these reforms, institutionalization of minors was to be considered an extreme measure applicable only to felonies and to juveniles older than 14. In 2006, all states within the Mexican federation enacted the “Law of justice for adolescents”. This system, at both the federal and state levels, formalizes a new global paradigm with regard to the triangular relationship between children, the State and the Law. It recognizes that children are also bearers of the inherent human rights recognized for all individuals, instead of simply objects in need of protection. However, despite formally aligning Mexican juvenile justice law with the Convention on the Rights of the Child (CRC), issues of actual substantive rights remained and new ones have appeared. For example, juveniles younger than 14 who have not committed a felony are released from institutions without any rehabilitation or treatment options, and alternative forms of justice were included without evaluating their possibilities of application or their conditions for success. In addition, the economic status of most juvenile detainees continues to be one of the most important determining factors in the administration of justice. Juveniles lack real access to an adequate defense because they OPEN ACCESS Laws 2014, 3 581 cannot afford to pay lawyers. This disconnection between rights and reality undermines the new system, raising the question of whether recent modifications to bring laws in line with international norms are in fact advancing juvenile justice. By approaching the Mexican juvenile justice systems as a single, multilayered system combining international, federal and local laws and procedures, we can better describe some of the substantive inconsistencies that continue to prevail, even as new ones develop in terms of children’s rights. Keywords: juvenile delinquency; justice; Mexico 1. Introduction The development of juvenile justice law in Mexico was directed to create special tribunals and laws for juveniles, keeping them separate from criminal laws, processes and penalties administered to adults. Two objectives were paramount: juveniles should be separated from adults so as not to be negatively influenced by them, and should be treated differently from adults. This “special treatment” was based on principles of education and protection [1]. The first tribunal in Mexico was established in the central state of San Luis Potosi in 1926. However, the subsequent legal developments in the area of juvenile justice occurred mainly in Mexico City. Those first courts adopted the model of the Chicago Court and of the Paternal Judge of New York [2]. The Law regarding Social Prevention and Juvenile Delinquency for the Federal District and Mexican territories was stated in 1928 [2]. It regulated juvenile offenses for common matters in the Federal District and for federal matters in the rest of the country. This law established that minors under 15 years old do not incur criminal responsibility. Therefore, they could not be criminally prosecuted nor submitted to judicial process. However, it decreed that these minors should be placed under state protection, which should take the appropriate actions in order to educate them [3]. Moreover, the tribunal action was extended to cases of neglected (abandoned), undisciplined, and vagrant children. In 1941, the Organic Law and Procedural Norms for Minors Tribunal and its Auxiliary Institutions for the Federal District and Territories was passed, modifying the structure of juvenile courts [4]. That law decreed two courts for Mexico City, with three members each, who would take decisions in a plenary session [5]. Article 18 of the Mexican Constitution was amended in 1964 to expressly recognize juvenile delinquents [6]. It mandated the federal government and the state governments to establish special institutions for the treatment of juvenile delinquents. After the first national conference for juvenile offenders in 1973, a new theory for treatment emerged and the law was changed once more [2]. In 1974, the law creating the Juvenile Tutelary Council in Federal Territories and the Federal District was passed [7]. This law included new concepts, objectives and procedures, and returned to preventive, protectionist, corrective and non-punitive treatment. The tribunal was divided into small courts and its structure included a president and a counselor for each president. This law served as a model for similar legislation in other states of the republic. The fundamental characteristic of the tutelary approach is that minors are not considered Laws 2014, 3 582 criminals. Accordingly, in this law there is no criminal responsibility, because due their age, juveniles (under 18 years old) do not have the capacity to understand criminal law [2]. This law did not bestow any Due Process rights and other Procedural Guarantees because the state functioned as “parens patriae”. In this sense, the state is the guardian of the children and has the power to intervene in their education, orientation and treatment. When a child committed a crime, the parents have failed in their task of educating their children; therefore, the state has to intervene and function as a tutor searching for their “wellbeing”. Even though the imprisonment was the “treatment” for children (separate for adults), it was understood that the state did not punish the delinquent children, it was education. For this reason, it was not necessary confer any procedural right to the children; the state was protecting them instead of punishing. United Nations beholden to the states to recognize that imprisonment is punishment and it was necessary to provide procedural rights to juvenile delinquents. For this purpose, a new law was enacted in 1991: The “Juvenile Treatment Law for the Federal District”. It regulates state level crimes for the Federal District and federal crimes for the rest of the republic [8]. The objective of this law is established in its first statute: “…[It] Rules the function of the State in protecting juvenile rights as well as in the social adjustment of those whose conduct is typified within the federal laws and in those of the federal District law” [8]. This is an administrative court, since all the officials that constitute the juvenile council are administrative authorities (non-judiciary). The structure of the tribunal changed significantly from the previous. A president, a single counselor (in Mexico this is called Unitarian), a superior court (appeal body), an interdisciplinary committee (which issues the diagnosis), and a juvenile defense unit formed this tribunal. Unlike the former tribunals, a Unitarian counselor makes the resolutions during the process. In 2007, a new law for the Federal District, the “Law of Justice for Adolescents for the Federal District” was decreed, which included the new treatment for juveniles proposed under the Mexican Constitution and the Convention on the Rights of the Child [9]. The objective of this new law is to establish an integral system of justice for adolescents (“Sistema Integral de justicia para adolescentes” in Spanish) guaranteeing all their Constitutional rights including the right of Due Process, and institutionalization as a last resort. This Law creates judicial courts for adolescents, eliminating the administrative tribunals in existence before 2007. In 2005, Article 18 of the Constitution [6] was modified to establish an integral system of justice for adolescents between 12 and 18 years old, who had committed a crime punishable under the criminal law. Its objective was to guarantee juveniles all the due process rights established for adults, in addition to the special ones recognized for minors. The constitutional reform also provides a framework that includes special tribunals as well as alternative justice options for juveniles. With these reforms, institutionalization of minors was to be considered an extreme measure applicable only to felonies and to juveniles older than 14 years old [10]. In 2006, all states within the Mexican federation enacted the “New Law of justice for adolescents”. This system, at both the federal and state levels, formalizes a new global paradigm with regard to the triangular relationship between children, the State and the law. It accepts that children are also holder of the inherent human rights recognized for all individuals, instead of simply objects in need of protection. However, despite formally aligning Mexican juvenile justice law with the Convention on the Rights of the Child (CRC) [11], issues of actual substantive rights remained and new ones have appeared. For example, juveniles younger than 14 who have not committed a felony are released from Laws 2014, 3 583 institutions without any rehabilitation or treatment options, and alternative forms of justice were included without evaluating their possibilities of application or their conditions for success. In addition, the economic status of most juvenile detainees continues to be one of the most important determining factors in the administration of justice. Juveniles lack real access to an adequate defense because they cannot afford to pay lawyers. This disconnects between rights and reality undermines the new system, raising the question of whether recent modifications to bring laws in line with international norms are in fact advancing juvenile justice. By approaching the Mexican juvenile justice systems as a single, multilayered system combining international, federal and local laws and procedures, we can better describe some of the substantive inconsistencies that continue to prevail, even as new ones develop in terms of children’s rights. 2. International Influence Mexico ratified the United Nations Convention on the Rights of the Child in 1990 [11], thus making this treaty part of the supreme law. Article 18 of the Mexican Constitution [6] is the constitutional foundation for juvenile justice, wherein the Federal and State governments are required to create, regulate and administer a juvenile justice system within their respective legal systems. In 2005, the Mexican Constitution was modified, establishing an integral system of justice for juvenile delinquents (article 18) [6], including alternative forms of justice, and its operation by specialized institutions and authorities. Almost all Mexican states modified their Juvenile Justice Laws in 2006 to conform to the new constitutional provisions. However, despite bringing Mexican law in line with the CRC, several problems persist, and new ones have appeared. Therefore, the aim of this paper is to analyze whether and to what extent these new legal modifications constitute progress in the protection of children’s rights. 3. Procedural System The Mexican Constitution (article 18) [6] establishes the accusatory system for juvenile justice, implying the division and separation of the investigation and judgment functions during the juvenile trial. The judge cannot proceed to the investigation, prosecution or accusation of the offenses; he/she decides about the law and facts presented in the trial. Moreover, it is assumed there will be contradiction, debate, equal opportunities for the parties, and ample recognition of defense rights [12]. The accusatory procedural system will be applied for the first time in the juvenile justice system under the Law of Justice for Adolescents. The previous law (Law that Creates the Juvenile Tutelary Council) operated under the inquisitorial system; it was characterized by the concentration of the investigation and judgment functions within one institution [13]. The counselor was the person who executed those functions. However, within the accusatory system the investigation is executed by one legal body and the judgment is handed down by another. The new system decrees that the investigation is the purview of the specialized prosecutor (fiscal) and the judgment, that of the juvenile judge. This regulation claims to assure the right to impartiality in the trial and the respect of due process rights for minors. Another difference between the two laws is that in the inquisitorial judicial system the instruction phase is fundamental for the process; sentences are based on the trials produced during this stage. However, in the accusatory system there is only a single preparatory stage of the trial. Laws 2014, 3 584 The new law includes the phases of investigation, instruction, trial and application of measures. The specialized prosecutor (fiscal) conducts the investigation stage. The stages of instruction and judgment are the responsibility of the specialized judge, and the application of measures to a treatment institute. The instruction phase consists of previous diligence conducted to determine the nature and circumstances of the criminal act and the identity of the people who have participated in it. The law also establishes the resources of appeal, revision, revocation, and complaint in diverse instances; they could be claimed before a superior court. In the adversarial system, an impartial person makes the decision about the case; usually a judge or jury and two institutions operate to persuade the judge (prosecutors against defense) as to the culpability or innocence of the defendant [14]. Under new law, a special prosecutor officer conducts the investigation of the case. The prosecutor rather than the judge direct this stage, and the evidence obtained is taken into consideration by the judge in deciding the case. However, it is argued in the literature that this situation could maintain impartiality because one of the parties is in charge of the facts and the judge does not directly obtain the evidence [13]. Moreover, a real defense for most juveniles is difficult because they cannot afford a private lawyer. The state provides free defense for all adolescents; however, there are 5 defense attorneys for 500 juvenile delinquents in each state. Therefore, the principles of equal opportunities for the parties and ample recognition of defense rights are not reached. The state has all the resources to investigate and find proofs to condemn the adolescent, and most of the time; juveniles lack the resources to ensure a suitable defense. 4. Principles of Law that Establish the Integral System of Justice for Adolescents 4.1. Best Interest of the Child The Law that Establishes the Integral System of Justice for Adolescents states the “best interest of the child” is the most important principle. Mexican jurisprudence (decisions of the Supreme Court of justice) states that In considering the articles 4th of the Political Constitution of Mexico; 3rd of the Convention on the Rights of the child (ratified by Mexico and published in the Official Federation Newspaper on 25 January 1991); and 3rd, 4th, 6th and 7th of the Law for the Protection of the Rights of Children and Adolescents, the courts must primarily apply the best interest of the child in all the measures that concern the child. The Convention principle “best interest of the child” was construed by the Inter-American Court of Human Rights on 16 December 1998 when ratified the Inter-American Convention of Human Rights) as implying that children’s development and the total exercise of their rights, must be considered as the governing criteria for the elaboration of norms and the application of these in all the orders relative to the life of the child [15]. The Supreme Court in Mexico established that the principle of the “best interest of the child” is conceived as the means through which his/her total and integral development are achieved, and this includes providing to him/her the care and necessary attention to effect this [16]. Laws 2014, 3 585 4.1.1. How Should “Best Interest” Be Interpreted? Related to the Child’s Individual’s Needs? In the literature, there is no concise interpretation of the best interest standard. However, one traditional interpretation is the consideration that “parents know what is best for the child”. A more recent explanation is that the State knows what the best interest of the child is, and using the parens patriae power, can decide for the child [17]. “Best interest” has also been interpreted as responding to children’s wishes and in terms of their rights and developmental needs, taking into account their physical and psychological health. The position and autonomy of the child is recognized in interpreting the best interest standard [17]. The participation of the child in determining what could be her/his best interest and influencing decisions concerning her/him is the central point of the CRC Convention. Consequently, authorities cannot make decisions on what constitutes the best interests of an individual child without taking that child’s views into account [18]. Therefore, the best interest of the child is associated with the right of the child to be heard, in addition to due process rights, religious freedom, freedom of speech and respect of his/her own opinions. Rodriguez [19] indicates that the best interest of the child should be understood as the physical and emotional stability of the child, in a context of respect for her/his decisions; in conclusion, taking into account the fundamental development of his/her personality. The state of Veracruz, México states that the best interest of the child in concrete situations means [20]: 1. The opinion of the child (the right to be heard), 2. The equilibrium between the rights and obligations of the child, 3. The equilibrium between the requirements of the common good, the rights and guarantees of the child, 4. The equilibrium between the rights of persons and the rights of the child, 5. The specific condition of the child as a developing person. CRC states that children should be recognized as separate human beings from their parents, and that they can have their own interests, which may conflict with those of their parents [11]. The CRC article 12 establishes that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” [11]. It also indicates that the child can express those views directly, or through a representative or appropriate body. Therefore, it is important to establish at what age children can form their own views and when they can express them directly. Under current Mexican law, children under 18 years old can express their views only through their representatives (Mexican Federal Civil Code, article 23) [21]. However, the goal of the Convention is direct expression by the child. Thus, the right of children to be heard, at least on matters of personal importance for them, originates from a view of the child as separate from their parents [22]. Child participation in court proceedings is therefore considered a manifestation of respect for children’s rights. The denial of the direct participation of the child in court proceedings could be considered as affecting the child’s personhood [22]. The right to be heard constitutes the direct participation of children in expressing their opinions in matters important to them. The Federal Law for the Protection of Children and Adolescents (2000) in turn establishes that children can express their opinion related to matters that affect them and other subjects connected Laws 2014, 3 586 to their family and community (article 41) [23]. However, the Federal Court has interpreted this right differently. In 2000, the Supreme Court determined that the Juvenile Law of Tamaulipas State violated the child’s right to be heard because it did not provide children with the opportunity to designate a representative to intervene in their defense. Children must be heard in a trial, in order to fulfill the guarantee of hearing, before depriving them of their liberty [24]. 4.1.2. What does the “Best Interest of the Child” Mean in Relation to His/Her Protection in the Process? Dagdug-Kalife [13], considers four basic protection rights to determine the best interest of the child: (a) the right to privacy; (b) precautionary treatment or measures; (c) alternative measures; and (d) protection. The right to privacy. The Convention establishes privacy in all stages of the proceedings. It legislates to protect the normal physical and psychological development of the child. Precautionary treatment or measures. Measures should be directed to child protection and take into consideration the presumption of innocence enshrined in the Convention. In this sense, the privation of freedom should be the last resort. Alternative measures. The process could finish in the first stages through care, guidance, supervision orders, mediation, conciliation, restoration or any alternative measure. Protection. It should be implemented to avoid stigmatization due to the crime committed. This best interest of the child principle appear after the Constitutional reform in Mexico. It is shown in Table 1. Table 1. Understanding of the best interest of the child in Mexican states juvenile justice laws. Explanation on the law for justice of adolescents Before the reform After the reform No mention 29 0 Maximize the rights of adolescents 0 4 Mention that it is a basic principle but, not explain it 0 9 Respect of all the children’s rights 0 4 Effective fulfillment of the children´s rights and guaranties 0 9 Optimal development 0 2 Increased quality of personhood 0 1 Total 29 29 The best interest of the child is directed to child protection and the satisfaction of their needs; however, state intervention in the case of juvenile delinquents is most directed to punish the criminal acts. The state does not seek the fulfillment of children rights and wellbeing during the process for juvenile delinquents. The process is directed to pursue the delinquent, similar to adults, and find the grade of guiltily of the adolescent. It is supposed that the state will find the optimal measure to achieve their healthy and optimal development. The most frequent option is incarceration, the use of alternative measures is scarce; state does not have the structure for applying them. Incarceration deprives children of opportunities for healthy socialization, family attachment, and education. Therefore, it does not help to reach the optimal development of the children, as it is established in the Mexican Constitution and Convention. Laws 2014, 3 587 4.2. Principe of Legality The Convention on the Rights of the Child declares “no child shall be accused by act or omissions not previously prohibited by the national or international law” [11]. The Mexican Constitution (article 18) recognizes this [6]. The previous laws (Law that Creates the Juvenile Tutelary Council) established that measures up to and including institutionalization could be applied to minors committing antisocial acts, but it did not define antisocial behavior. Article 14 of the Mexican Constitution establishes the principle of no crime without sanction and no sanction without law (nullum crimen sine poena, nullum poena sine lege certa) [6]. It states, “In a criminal trial it is prohibited to impose, by analogy or majority of reason, a sanction not established in the law which is exactly applicable to the crime”. The standard is the exact application of the law in view of the facts and it constitutes the fundamental principle of legality. The definition of this principle in the new system implies that measures can be applied only after a non-appealed judgment is obtained, dictated by a competent judge in a due process and under the form prescribed by the law. It also means that any adolescent can suffer restrictions of his/her liberty only because of a judge’s sanction [25]. The Supreme Court establishes the legality of the authorities’ restraint in its public power, which can only be exerted in conformity with the law and the faculties it grants [26]. This principle derives from article 14 of the Mexican Constitution, which states the restricted exigency of concrete contents, meaning that law should be neither vague or imprecise nor open or ample enough to allow arbitrariness [27]. In sum, the principle of legality constitutes the exact application of criminal law and the administration of previously established laws for criminal acts. The liberty of adolescents can be restricted only when a previously established law and tribunal have judged them and a non-appealed judgment has been obtained. Table 2 shows that before the reform antisocial behavior or indiscipline could be considered for arresting any children. After the reform of 2006 children could be arrested only for crimes established by the law. This is one of achievements of the new law. Table 2. Legality principle. Type Number of states Before reform After reform Children abandoned, when parents asked and crimes established in criminal law 1 0 Indiscipline and crimes established in the law 1 0 Antisocial behavior and crimes established in the law 24 0 Crimes established in the law 0 29 No data 3 0 Total 29 29 4.3. Diversion The CRC (article 40) promotes the possibility of extrajudicial measures, while respecting children’s rights [11]. The article 18 of Mexican Constitution establishes that, when possible, alternative forms of justice should be utilized [6]. Thus, the new system foresees pre-judicial or extra-judicial instances of conflict resolution and favors a non-judicial process, using the principles of minimal intervention and Laws 2014, 3 588 the best interest of the child. Reducing the use of the judicial system implies the existence of an alternative solution for criminal processes [28]. In some states of the Mexican Republic, mediation and conciliation are considered alternative forms of justice. For example, in Sonora State, article 9, fraction XVI [29]. Nuevo León State favors restorative justice, which is defined as the voluntary juridical act conducted between the victim and the accused children that results in the solution of the conflict through any suitable mechanism (article 62) [30]. In Sonora State, mediation could occur during the procedure or before pronouncing the resolution (article 155). Conciliation and mediation are utilized in repairing the damage that results from crime. These alternative forms are allowed for crimes that are prosecuted at the request of the offended party and they allow the extinction of the criminal action when legal disinterestedness of the victim in the continuation of the cause exists (article 156) [29]. All states of the Mexican Republic consider the judicial process as the last resort in the treatment of juvenile offenders, and in many states, the law promotes the use of alternative processes. However, few states allow these processes to be carried out it in a center for alternative justice. In addition, alternative systems exist for misdemeanors but in some of them, it is difficult to have recourse to them because of a number of prerequisites for their use [25]. Two Mexican states (Querétaro [31] and Chiapas [32]) contemplate extra-judicial process; however, their legal systems indicate that a judge will prescribe psychological assistance for the processed adolescent, who must repair the harm inflicted on the victim. Most of the state’s laws authorize judges and public prosecutors to settle agreements through mediation and conciliation, yet, some states request the intervention of specialized public or private centers; for example, Durango [33] State redirects the process to an alternative center of justice. Table 3 shows the number of states that considered diversion for adolescents. Table 3. States that consider diversion for adolescents. Type Number of states Before reform After reform Conciliation 0 5 Mediation and conciliation 0 10 Mediation, conciliation and restorative justice 0 2 Conciliation and suspended process to proof 0 6 Mediation, conciliation and suspended process 0 3 Restorative justice and suspended process 0 1 Restoration, mediation, conciliation, and suspended process 0 2 Total 0 29 A real extra-judicial process carried out in the community, school contexts, or in a combination of these, is not recognized by law. An alternative process conducted outside of the court is not possible under the Mexican system, only one state considers an alternative center of justice. Considering former arguments alternative process for juveniles is not possible and it is essential to ensure a healthy social and psychological development of adolescents. Laws 2014, 3 589 4.4. Due Process Rights and Other Procedural Guarantees The Mexican Constitution (article 18) and juvenile justice laws recognize that the procedural guarantees of adults have to be granted to juveniles; moreover, these legal frameworks enshrine the special guarantees granted for persons under 18 years old (children and adolescents) and their due process rights [6]. The due process rights constitute the principles, rights and guarantees that protect persons against arbitrary acts by authority, conferring on them a strong status in the presence of punitive action by the state. These protections include the rights to be judged in judicial tribunals, to be heard, of contradiction and defense, the presumption of innocence, the right to an oral trial, the establishment of the means of incrimination, and the accusatory system. For children, due process rights conceive them as subjects of rights and procedural guarantees granted to all persons, but those rights also provide special guarantees because of their condition [34]. The Interamerican Court of Human Rights stated that in the application of these rights the special condition of the child should be taken into consideration [35]. Table 4 indicates the number of states that contemplate the presumption of innocence before and after the reform. Table 4. Presumption of innocence principle. Type Number of states Before reform After reform No guarantee for adolescents 25 0 Guarantee for adolescents 4 29 Total 29 29 In the case of children, due process rights should be respected in all the stages of the process, even during the application of the treatment. The due process rights granted by this law are: the right to be informed about the due process rights; to not be private of freedom just for cases established by the law; to be respected; to presumption of innocence; to not be forced to testify; to guarantee that the burden of proof should be charged to their prosecutors; to be informed about procedural acts; to short preventive institutionalization; to the presence of their parents or tutors in all stages of the diligence; to the right to privacy; to the right to an appropriate defense (which includes the right to counsel and the right to a state-appointed attorney when no other counsel has been designated); to the right to an interpreter in case of being indigenous or not Spanish-speaking; to have access to all information available for their defense; to an expeditious, complete and impartial trial; to present any evidence regulated by Criminal Law; to confront and cross-examine witnesses; to assure notification of their parents or guardians regarding the charges; to appeal the resolutions; to be notified about the charges, and the right to privacy and confidentiality. Children have the right to respect of their privacy and that of their families, thus they have the right to non-disclosure of any information about their identity (name, address, relationships, picture, etc.) at any stage of the process. All the authorities intervening in the process have the obligation to maintain confidentiality regarding all information that could lead to the identification of the child. Some Mexican states mandate this obligation as applied to their police forces and prosecutors. All publicity related to children’s cases is prohibited. The right to intervention means that the adolescent should have enough time to prepare his/her defense and participate in all the hearings of the process, to have access to all the documents, have the Laws 2014, 3 590 right to formulate questions to witnesses, to present allegations and other important arguments for the defense, and to propose and contradict proofs. The right to be informed implies that children should be informed concerning all their rights and all aspects of the process. Children should receive information in a simple and clear form, according to their capacity to comprehend. This information could vary depending on their age, contents of the law, the meaning of the process diligences, the object, purpose, motive and duration of the measures, and so on. This has two objectives for children: to ensure that they understand the value of the prescribed judicial actions and grasp the educational function of those actions. Non-discrimination is another essential right for adolescents. However, the law does not define it; it merely describes the causes of discrimination. The law indicates the right of equality, and non-discrimination for reasons of gender, religion, race, ethnic origin, language, nationality, cultural practices or beliefs, special capacities, social mal-adaptation, nature and seriousness of behavior, political preference, parents’ situation, and economic and social condition. The non-discrimination right is also considered in the application of measures. The absolute impartiality of their execution, under the supervision of a judge, is established. The law also contemplates special protection for native, female and handicapped adolescents. In spite of this, the state grants all procedural rights to adolescents, for example precautionary prison is considered in all states of Mexico, it is established for exceptional cases and for minimal time. However, all adolescents that break the law are arrested immediately and remain in jail until the sentence. 4.5. Application of Measures The Mexican Constitution [6] denominates “measures” by the state in response to those responses contravening Criminal Law. These measures constitute real penalties or sanctions because they imply the adolescent’s responsibility for their criminal offences. The Senate, in passing the law, explained the term “measures” was used to differentiate them from penalties applied in the adult system because the latter involves individuals possessing mens rea. Measures aim to eliminate the retributive goal of sanctions; the Mexican Constitution [6] establishes that the purpose of measures is “the familiar and social rehabilitation of the adolescent to reach a complete development of her/his person and capacities”. Therefore, according to the Constitution, the measures or treatment have an educational function. The administration of measures should be flexible and the judge applies discretion in their administration in order to respect the minors’ due process rights. The objective is to find the most appropriate measure for the adolescent’s rehabilitation. The juvenal system of justice establishes very diverse measures for adolescents who violate Criminal Law, ranging from a warning and reprimand to systems of semi-freedom or institutionalization. Mainly, two kinds of measures are applicable to adolescents: one is institutionalization; another is external measures consisting of orientation, protection, education and treatment. Institutionalization is considered an extreme measure applicable only to felonies and to juveniles older than 14 [6] (article 18). Some Mexican states include other forms of deprivation of freedom, for example domiciliary arrest (23 states, constituting the majority of states), free-time arrest (11 states), semi-open system (16 states), and weekend arrest (12 states) [25]. Deprivation of freedom should be the last resort, consisting of the shortest incarceration time possible. There is no regulation to define this disposition and each state determines what “the shortest time” is. In some states, it depends Laws 2014, 3 591 on the age and the severity of the crime. In addition, some states consider different gradations of deprivation of freedom, and the judge has to justify the use of the extreme measure of institutionalization. However, in reality the law increased the maximum years of penalties and incarceration. The next table (Table 5) shows a comparison of the penalties before and after of constitutional reform. Table 5. Penalties that establish the laws for juvenile delinquents in the different states of Mexico before the reform of 2006 and after the reform. Maximum Years of penalties Number of States Before of reform After the reform 5 20 3 6 1 0 7 2 12 8 0 3 10 0 5 12 0 1 15 0 2 18 0 1 20 0 1 22 1 0 No exceed the penalty for adults 0 1 Undefined 1 0 No data 4 0 Total 29 29 All states establish rights for children who are subject to institutionalization and indicate that the intervention must be tailored to the individual child’s needs. In addition, it is agreed that children should be heard in the elaboration of this individualized program. Indeed, their agreement to the program is important for the accomplishment of the measure and the goal of the intervention system. The purpose of rehabilitation of the new law is converted into an increased time of incarceration. 4.6. Proportionality of Measures The CRC [11] establishes in article 40 that a correlation should exist between punitive measures, the circumstances of the crime and the severity of the infraction. Punitive measures should be prescribed according to the goal of the integral system, which is the education of the adolescent. Therefore judges should impose the most appropriate sanction to strengthen the child’s rights, freedom and developmental, as well as the social integration of adolescents [25]. For example, the law of Justice for Adolescents in Sonora [29] indicates that, in determining a measure, the Judge will have to consider: first the best interests of the child, and second, various global characteristics of the case, such as life circumstances and the severity of the criminal conduct, the adolescent’s age, the conditions of his/her development, the adolescent’s attitude during the process, his/her efforts carried out to repair the harm, and the possibility that the adolescent will fulfil the prescribed punitive measures (article 83). With these dispositions, the law tries to adhere to the principle of proportionality in the application of punitive measures. Moreover, the law states that these measures should always favor the interests of Laws 2014, 3 592 the adolescent; for this reason, it is important that the judge consider the juvenile’s needs and circumstances, because they can affect his or her behavior. Adverse social and familial conditions experienced by the adolescent should mitigate the sanction, rather than aggravate it. Increasing time of incarceration does not favor the social and familiar rehabilitation and development of the children; therefore, the application of the law does not reach the best interest of the child. 4.7. Specialization The CRC [11], the Mexican Constitution [6] (article 18) as well as the Justice for Adolescents [29] state that any process will be conducted in specialized institutions, by specialized authorities and courts. The specialization is also extended to the administration of punitive measures; the new law requires specialized personnel for the elaboration of programs for adolescents subject to “institutionalization and application of other punitive measures” [25]. Specialized courts have been created to administer justice for adolescents, in the context of the judicial power of the state. With this establishment of specialized courts, the juvenile courts in Mexico [29] moved from an administrative to a judicial context (article 22). Provisional custody, the execution of external measures and the institutionalization of adolescents will be administered by the Institute of Treatment and Application of Measures for Adolescents, under the authority of the Executive Secretary of Public Security of the State [29] (article 23). This law also created the Specialized Unit of Prosecution of Justice for Adolescents, part of the General Prosecution Office of the State. The position of specialized prosecutor in the administration of justice for adolescents was also created. This unit will prosecute and investigate the crimes of adolescents (article 16) [29]. The law also mandated the establishment of the Specialized Unit for the Defense of Adolescents, under the authority of the General Direction of the Official Counselling (Government institution). This specialized unit will provide adolescents with assistance, legal representation, advice and defense of their rights during trial (article 16) [29]. The law establishes that the staff of these units should be carefully selected, demonstrating previous experience in the treatment of children, and competence in the management of children’s issues. Chihuahua State (article 118) [36] established that these personnel should exhibit “aptitudes to exercise the [expected] function, a gender perspective, knowledge of human rights, and specialization in adolescents in private practice”. Other states establish that staff should demonstrate knowledge of children’s rights and juvenile delinquency, as well as possess appropriate legal knowledge. Moreover, systematic and continuous training on the psychological, physical, and social development and needs of children is mandated. Furthermore, specialized background and training in children’s issues is a condition for hiring, granting of permanency and promotion of all personnel. Table 6 indicates the number of specialized judges before and after the reform. Table 6. Specialization of the judges. Type Number of states Before reform After reform No specialization 29 0 Specialization 0 29 Laws 2014, 3 593 The personnel of the system are: 1. Prosecutors 2. Police officers 3. Judges and magistrates 4. Public attorneys 5. Technical team 6. Institution for the execution of the measures 7. Directors of institutions of incarceration centers 8. Auxiliary team After the reform all the Juvenile system was modified, prosecutors, judges, and unit of defense are specialized. They receive an orientation about children rights, legal process and juvenile delinquency. However, there is no specialized police; adolescents are arrested for police officers that attend general population. 5. Concluding Remarks The new law radically changes the concept of the child, who is now considered a subject with rights and obligations instead of simply an object to be protected. The best interest of the child is the fundamental principle of the law, and full protection of children its main goal. However, these changes, designed for juveniles who contravene criminal law, have not modified their legal and social status. Application of the new principles has not improved their situation, in part because of ambiguities in definitions. The concept of integral protection, for example, is diffuse; there is no clear definition in the law. This system tries to responds to juvenile delinquency problems in a social scenario where there is a demand for solutions; through this system, the government addresses the issue of adolescents who contravene criminal law [28], although apparently, only in a conceptual or theoretical way. In contrast, alternative forms of justice could encourage the Mexican government to focus on the needs of children. This would also promote a more egalitarian system. The new system is directed to this end in theory, but the first step to an improved juvenile legal system would be the recognition that more than half of Mexican children live in poverty. If the State ignores this situation, it does not meet its responsibilities. The new system of protection involves providing education, promoting and guaranteeing health, and offering opportunities for complete human development. Although the proposal of the new juvenile legal system is the fulfilment of the needs of the adolescent, in practice, the system is more directed to social control. It tries to eliminate the undesirable behavior of adolescents through sanctions and by encouraging the juvenile to recognize his/her responsibility, while at the same time deterring other adolescents from committing crimes. Most Mexican States increased their penalties for adolescents. However, there is no real social service proportionating to adolescents the opportunity to receive social, familial, educational, and health support to develop a healthy lifestyle. Although institutionalization is intended for felonies, each state differs in its definition of a felony. Frequently, it is up to judges to decide what constitutes a felony for juveniles. In addition, adolescents could be incarcerated for any offense, increasing the probability for institutionalization. The instruction phase thus continues to be the most important part of the trial. Therefore, could be considered the new law has not changed this situation. Laws 2014, 3 594 Under new system a special prosecutor is designated to investigate juvenile cases. In practice, then, the prosecutor, not the judge, directs the investigation of the facts and this evidence is taken into consideration by the judge in deciding the case [13]. Such a situation threatens the impartiality of the proceeding because one of the parties directly involved is in charge of handling the facts. Moreover, the judge does not directly obtain the evidence. In conclusion, although the Mexican laws are responding to international requirements, the protection of children has not been achieved. In contrast, a complex, sometimes contradictory, system of pluralistic rules has developed, making the goal of children’s protection unreachable in the present context. Author Contributions The first author wrote the article and the second elaborated the tables. Conflicts of Interest The authors declare no conflict of interest. References and Notes 1. Robert C. Trojanowicz, and Merry Morash. Juvenile Delinquency: Concepts and Control. New Jersey: Prentice Hall, 1987, p. 517. 2. Luis Rodríguez-Manzanera. Criminalidad de Menores [Criminality of Minors]. Mexico City: Editorial Porrua, 1997, pp. 367–85. 3. D.O. (Official Journal) 21 de junio de 1928, Ley sobre la Prevención social de la Delincuencia Infantil en el Distrito Federal (Law Regarding Social Prevention and Juvenile Delinquency for the Federal District and Territories, 1928). 4. D.O. (Official Journal) 26 de Junio de 1941, Ley Orgánica y Normas de Procedimiento de los Tribunales de Menores y sus Instituciones Auxiliares en el Distrito y Territorio Federales (Fundamental Law and Procedure Rules of Children Courts and Its Auxiliary Institutions in District and Federal Territory). 5. Victoria Adato de Ibarra. “Derecho Procesal de Menores y la Constitución in Derecho de la Niñez.” In Memorias del Coloquio de Derechos de la Niñez del Instituto de Investigaciones Jurídicas. Mexico City: Universidad Nacional Autónoma de México, 1990, pp. 91–108. (In Spanish) 6. Congreso de la Unión. Poder legislativo de los Estados Unidos Mexicanos. “Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United Mexican States).” Available online: http://www.diputados.gob.mx/LeyesBiblio/pdf/1_07jul14.pdf (accessed on 20 August 2014). 7. D.O. (Official Journal) 2 de agosto de 1974, Ley que Crea el Consejo Tutelar para Menores Infractores en el Distrito Federal. 8. D.O. (Official Journal) 27 de diciembre del 1991, Ley para el Tratamiento de Menores Infractores para el Distrito Federal en Materia Común y para toda la República en materia federal. 9. Asamblea Legislativa del Distrito Federal. VI Legislatura. “Ley de Justicia para Adolescentes para el Distrito Federal (Law of Justice for Adolescents of Federal District). Publicada en la Gaceta Oficial del D. F. el 17 de Noviembre de 2007.” Available online: Laws 2014, 3 595 http://www.aldf.gob.mx/archivo-102c072ba3aadbf6f952a4d2f77d5c1c.pdf (accessed on 20 August 2014). 10. D.O. (Official Journal) Diario Oficial de la Federación, 12 de diciembre de 2005. 11. Convention on the Rights of the Child (2009). Ratified by Mexico in 10 August 1990. (Convención Sobre los Derechos del Niño ratificado 10 de agosto de 1990). 12. Gomes Da Costa, and Antonio Carlos. “Futuro de las políticas Públicas para la Infancia en América Latina.” Available online: http://www.iin.oea.org/Futuro_para_las_politicas_ publicas.pdf (accessed on 13 August 2014). 13. Dagdug-Kalife, Alfredo. “Aspectos procesales de los asuntos de menores infractores.” In Derecho Penal. Memoria del Congreso Internacional de Culturas y Sistemas Jurídicos Comparados. Edited by S. García Ramírez. México City: Instituto de Investigaciones Jurídicas UNAM, 2005, pp. 180–206. Available online: http://www.bibliojuridica.org/libros/4/1727/11.pdf (accessed on 25 March 2009). (In Spanish) 14. Bakken, Tim. “Truth and innocence procedures to free innocent persons: Beyond the adversarial system.” University of Michigan Journal of Law Reform 41 (2008): 547–95. 15. Semanario Judicial de la Federación (hereinafter S.J.F.). Primera Sala (First Chamber), Novena Época. Tesis: 1a. CXLI/2007; Pagina 265. The best interest of the child. 16. Semanario Judicial de la Federación (hereinafter S.J.F.). Primera Sala (First Chamber), Novena Época. Tesis: II.3o.C.13 K; 2005, Pagina 1798. Custody and the best interest of the child. 17. Henderson, Tammy L. “Grandparent Visitation Rights: Justices’ Interpretation of the Best Interests of the Child Standard.” Journal of Family Issues 26 (2005): 638–64. 18. Lidén, Hilde, and Hilde Rusten. “Asylum, participation and the best interest of the child: New lessons from Norway.” Children & Society 21 (2007): 273–83. 19. Rodriguez, Sonia. La protección de los menores en el Derecho Internacional Privado Mexicano. México City: Instituto de Investigaciones Jurídicas UNAM, 2006. Available online: http://www.bibliojuridica.org/libros/libro.htm?l=2197 (accessed on 25 March 2009). (In Spanish) 20. Congreso del Estado de Veracruz. Poder Legislativo del Estado de Veracruz. “Ley de Responsabilidad Juvenil para el Estado de Veracruz Ignacio de la llave (art. 9).” Available online: http://www.legisver.gob.mx/leyes/LeyesPDF/RESPONSABILIDADJUVENIL09-03-07.pdf (accessed on 25 March 2009). 21. Congreso de la Unión. Poder legislativo de los Estados Unidos Mexicanos. “Código Civil Federal (Federal Civil Code).” Available online: http://www.diputados.gob.mx/LeyesBiblio/pdf/ 2_241213.pdf (accessed on 20 August 2014). 22. Grover, Sonja. “The right of the child to be heard in education litigation: An analysis of the ‘intelligent design’ Pennsylvania case on the separation of Church and State in the public schools.” Education and the Law 18 (2006): 149–60. 23. Congreso de la Unión. Poder legislativo de los Estados Unidos Mexicanos. “Ley Para La Protección De Los Derechos De Niñas, Niños Y Adolescentes (Federal Law for the Protection of Children and Adolescents).” Available online: http://www.diputados.gob.mx/LeyesBiblio/pdf/ 185.pdf (accessed on 20 August 2014). 24. D.O. (Official Journal) Semanario Judicial de la Federación (hereinafter S.J.F.). Primera sala (Second Chamber), Novena Época. Amparo directo en Revisión 397; 2000, Página 181. Juvenile Laws 2014, 3 596 delinquents: Law for prevention of Antisocial Behavior, Assistance to Victims, Tutelary Measures and Social Readjustment for Children in the State of Tamaulipas, violates hearing guarantee because it does not anticipate the intervention, in the process, of the person that exerts the custody or the advocate of their confidence (Law published in the official gazette, 27 December 1986). 25. Vasconcelos-Mendez, Rubén. La justicia para Adolescentes en México: Análisis de las leyes Estatales. México City: Instituto de Investigaciones Jurídicas de la UNAM, 2009. Available online: http://www.bibliojuridica.org/libros/6/2640/pl2640.htm (accessed on 24 April 2009). (In Spanish) 26. Semanario Judicial de la Federación (hereinafter S.J.F.). Tribunal Colegiado de circuito en materia Administrativa, primer cuito (Fist Circuit), Novena Época. Tesis aislada I.7o.A.511 A /2007. Página 1673. Competence by territory of the administrative authorities. The fact that an individual voluntarily attends an authority’s request does not imply a tacit submission, attending the principle of legality anticipated in article 16 of the federal constitution. 27. Semanario Judicial de la Federación (hereinafter S.J.F.). Segundo tribunal Colegiado en materia Penal del Segundo Circuito (Segundo Circuit), Novena Época. Amparo directo 137/2005, Página 1879. Principle of legality standard constitutes the fundamental base and rule, with the principle of taxability and hermeneutic plenitude derived from the first, which is the base of a criminal system in a democratic state. 28. Belloff, Mary. “Los nuevos Sistemas de Justicia Juvenil en América Latina (1989–2006).” In Justicia y Derechos del Niño. Edited by Mary Beloff, Miguel Cillero, Emilio García Méndez, María Loreto Quijada, Gimol Pinto, Alejandro Gómez and Susana Falca. Santiago de Chile: UNICEF, 2006, vol. 8, pp. 9–50. 29. Congreso del Estado de Sonora. Poder Legislativo del Estado de Sonora México. “Ley que Establece el Sistema Integral de Justicia para Adolescentes del Estado de Sonora (The Law that Establishes the Integral System of Justice for minors in Sonora).” Available online: http://www.congresoson.gob.mx/Leyes_Archivos/doc_107.pdf (accessed on 20 August 2014). 30. Congreso del Estado de Nuevo León. Poder Legislativo del Estado de Nuevo León. “Ley del Sistema Especial de Justicia para Adolescentes Del Estado de Nuevo León.” Available online: http://www.hcnl.gob.mx/trabajo_legislativo/leyes/pdf/LEY%20DEL%20 SISTEMA%20ESPECIAL%20DE%20JUSTICIA%20PARA%20ADOLESCENTES%20DEL%2 0ESTADO%20DE%20NUEVO%20LEON.pdf (accessed on 12 August 2014). 31. Congreso del Estado de Querétaro. Poder Legislativo del Estado de Querétaro. “Ley de justicia para menores del estado de Querétaro.” Available online: http://info4.juridicas.unam.mx/adprojus/ leg/23/962/ (accessed on 12 January 2009). 32. Congreso del Estado de Chiapas. Poder Legislativo del Estado de Chiapas. “Ley para la protección y tratamiento de menores infractores para el Estado de Chiapas.” Available online: http://info4.juridicas.unam.mx/adprojus/leg/8/275/default.htm?s= (accessed on 20 January 2009). 33. Congreso del Estado de Durango. Poder Legislativo del Estado de Durango. “Código de Justicia para Menores del Estado de Durango.” Available online: http://congresodurango.gob.mx/ Leyes/CODIGO_DE_JUSTICIA_PARA_MENORES_INFRACTORES_EN_EL_ESTADO_DE_ DURANGO.pdf (accessed on 18 August 2014). Laws 2014, 3 597 34. Armijo Sáncho, Gilbert. Manual de Derecho Procesal Penal Juvenil. San José: ILANUD, 1998, p. 230. (In Spanish) 35. Inter-American Court for Human Rights. “Consultiva opinion OC-17/2002.” Available online: http://www.corteidh.or.cr/docs/opiniones/seriea_17_esp.pdf (accessed on 18 January 2009). 36. Congreso del Estado de Chihuahua. Poder Legislativo del Estado de Chihuahua. “Ley de Justicia Especial para Adolescentes infractores del Estado de Chihuahua.” Available online: http://www.congresochihuahua.gob.mx/biblioteca/leyes/archivosLeyes/87.pdf (accessed on 10 August 2014). © 2014 by the authors; licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license (http://creativecommons.org/licenses/by/3.0/). 
work_e6xz2kberfcgdaakki4adhms4u	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221729145 Params is empty 221729145 exception Params is empty 2021/04/06-03:20:25 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221729145 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:25 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_e77xab7isnep3iiomaqvox7kvi	----	250 Book reviews In recent years there has been an expanding literature devoted to the case stories of those who are ill, but this collection of articles is unusual in that it starts with this approach in part one, and then considers the ethical, social, cultural and political responses to them, attempting to provide a link with policy issues, in part two. This is an ambitious and important develop- ment which deserves far more atten- tion than it has received so far. The individual contributions to the volume are generally of a high stan- dard, and rather than attempt the briefest sketch of each of them, I will highlight certain issues which I found of particular interest. In the first chapter of part one Kay Toombs's description of her personal experi- ences - "Sufficient unto the day: a life with multiple sclerosis" - was both insightful and compelling. Two telling quotations speak for themselves. First that "...there is nothing intrinsically good about chronic, progressive multiple sclerosis. Nothing. This is not, however, to deny that my life has been profoundly affected in ways that are enriching" (page 20). Second: "Perhaps the greatest challenge of all for the multiple sclerosis patient is to learn to live with ongoing and perma- nent uncertainty" (page 20). In another chapter in part one, "Whose story is it anyway?", Sue Estroff analyses the ethical issues raised in doing narrative research on chronic illness. Estroff's own work has been with the long-term mentally ill and her sensitive and honest account exposes the impossibility of deriving ethical research practices from theo- retical considerations alone. In par- ticular she demonstrates the problem of applying ethical codes primarily developed for quantitative research on those with acute physical illness, to qualitative and especially narrative research with those with chronic mental illness. The central issue here is that narrative research requires that the researcher empathise and collabo- rate with the subjects of the study, whilst also being sufficiently distant from them to maintain a degree of objectivity. One ambiguity that arises from this is that in attempting to adopt a neutral stance the researcher may be seen by the research subject as the most caring person he or she has contact with. Estroff concludes that "the lines between friend and investi- gator blur over time, producing almost as many difficulties as positive contributions to the quality of the research" (page 91). In the second part of the book, which focuses on policy, John Douard's chapter "Disability and the persistence of the normal", is con- cerned with the distinction that arose in the nineteenth century between the normal and the abnormal, both medically and socially and the way it can lead to two responses to disability which tend to sustain conformity and discipline within society rather than solving problems of how to live together. These are, first, giving special rights to distinct minority groups, so institutionalising labelling; and, second, requiring people to behave in such a way as to "qualify" as normal, so that they are held respon- sible for their own status. These observations are important and demonstrate the relevance of social and historical analysis to ethical issues, a theme which Arthur Kleinman takes up in his chapter on "The social course of chronic illness": "I maintain that there is a role for anthropology, social history, and other social sciences in shifting the object of inquiry to include the social processes of everyday local worlds which shape suffering in ways quite distinct from the usual individual psychological orientation of clinical and ethical approaches taken to this most human of conditions [that of suffering]" (page 185). The difficu!ty though is how to put this process into operation and make it relevant to social policy; the struc- ture of the book is itself an indication of where the problem lies. The first part concentrates on the individual experience of suffering, and the second on how to harness that experi- ence in fostering better approaches to policy-making. However, the two parts are largely unrelated to each other. Only Estroff connects the direct accounts ofher own narrative research with ambiguities in its nature and so points to ethical dilemmas relating to research policy; and there is no attempt to form a bridge between the other chapters in the two parts of the book. This then is not just a collection of interesting articles, because it raises the question of how to bring together illness narrative research with more traditional historical, sociological and anthropological approaches in such a way as to enrich the overall analysis and more fruitfully inform social policy. Although the book is limited in how far it has taken this project forward, the distinction of many of the contributions is in having shown the importance of this area for the future. DAVID GREAVES Centre for Philosophy and Health Care, University of Wales, Swansea Justice and Health Care: Comparative Perspectives Edited by Andrew Grubb and Maxwell J Mehlman, John Wiley, Chichester, 1995, 350 pages, £35.00. Limited resources and rationing are "buzz words" today in health care across the globe. The development of modem medical technology with its ability to prolong life has at the same time raised the dilemma of just who should get the treatment? justice and Health Care: Comparative Perspectives, a collection of essays which, as the title suggests, discusses particular problems relating to health care allocation in the light of experiences drawn from a number of jurisdictions, is thus a timely publication. A number of essays concentrate on broad questions of policy in resource allocation. For instance, Alan Maynard, an economist, examines rationing - currently one of the most hotly debated issues within the National Health Service (NHS). Maynard argues for the establishment of criteria for resource alloca- tion within the NHS, drawing upon experiences in Oregon and elsewhere. While overt resource allocation decisions may prove a difficult and uncomfortable task, some may see this as preferable to the somewhat covert allocation process undertaken in the past. Physicians on both sides of the Atlantic have taken into account a patient's lifestyle in deciding whether to undertake treatment. Robert Schwartz questions this in his essay "Life style, health status and distribu- tive justice". For example, decisions regarding lifestyle may not be truly voluntary - the fact that an individual becomes an alcoholic may relate to a whole series of factors beyond whether or not an individual chooses to have a drink. In addition, he doubts whether restriction of resources on lifestyle criteria is justifi- able on the basis of punishment or of deterrence. Many of the essays in this collec- tion address the role of the law in o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 2 .4 .2 5 0 o n 1 A u g u st 1 9 9 6 . D o w n lo a d e d fro m http://jme.bmj.com/ Book reviews 251 facilitating access to health care. The difficulties with legal recognition of rights to health care are explored by Dieter Giesen. Some of the themes considered by Professor Giesen, notably the duty to rescue, are also taken up in Barry Furrow's essay examining provision of care to persons falling outside the health insurance scheme in the USA. Lawrence Gostin in his essay "The Americans with Disabilities Act and the corpus of anti-discrimination law: a force for change in the future of public health legislation", discusses the extent to which public health powers in the USA conflict with the rights of persons with communicable diseases and the role which can be played by anti-discrimination legisla- tion in the form of the Americans with Disabilities Act. Deficiencies in health provision and sensitivity to the particular needs of ethnic groups in England are considered by David Pearl. This essay also illustrates the existing difficulties in attempting to use English law as a means of obtaining access to health care resources. The remaining essays provide: an examination of dimensions of justice in the context of the operation of the Canadian Health system, by Carolyn Tuhoy; the use of financial incentives in a market in organs, by James Blumstein, and problems of access to health care experienced by those from the USA African- American community, by Vernellia E Randall. All the essays in the collection explore the central theme in the con- text of a well-developed Western health care system. It perhaps should be borne in mind that a comparative analysis of matters regarding justice and health care in relation to, for example, the Third World, would of course, bring into focus somewhat dif- ferent issues. While some essays draw cross-jurisdictional comparisons the primary focus of this collection is American, with five out of nine of the essays concentrating upon American health care. The collection is thus per- haps not truly "comparative". Never- theless, overall J7ustice and Health Care: Comparative Perspectives provides a number of lively, provocative and scholarly contributions to what is becoming an increasingly vociferous debate. J V McHALE Lecturer in Law, Faculty of Law, University of Manchester Torture: Human Rights, Medical Ethics and the Case of Israel Edited by Neve Gordon and Ruchama Marton, London, Zed Books, 1995, 206 pages, £42.50 hc, £16.95 sc. The book derives from a conference on the International Struggle against Torture and the Case of Israel, held in Tel-Aviv in 1993, organised by the Association of Israeli-Palestinian Physicians for Human Rights and the Public Committee against Torture in Israel. It is not merely a proceedings, but a compilation by seventeen of the participants with diverse interests and skills, though it does include reports of workshops held at the end of each section of the conference. Considering the composition of the population of Israel and the past personal experiences of many of its citizens, it might be thought that the very idea of torture would be anathema. However, it is a tragic fact that the whole history of Israeli- Palestinian relationships has been tainted by allegations ofinhuman treat- ment on both sides, but particularly by Israeli soldiers and interrogators. The book is divided into four parts. The first, dealing with the public realm takes the political status first, des- cribing how harsh treatment amount- ing to torture has not been condemned but made legitimate by the Landau Report. In 1987 a commission of inquiry headed by ChiefJustice Moshe Landau, was set up to investigate com- plaints of ill-treatment of Palestinian detainees. The commission, instead of outlawing torture, authorised the General Security Service (GSS) to use "a moderate measure of physical force" in the interrogation of "secur- ity" detainees. The recommendations became law. Though the exact methods permitted have never been published, the interpretation of "mod- erate physical force" has led to the use of such techniques as beating, hood- ing, sleep deprivation, confining in a cupboard-sized cell, electric shocks and vigorous shaking. Next, the social response to the situation is described. There are three lines of argument commonly used: i: To deny that tor- ture takes place except as an occa- sional aberration; ii: Avoiding the use of pejorative words and substituting phrases such as "moderate physical pressure" or what the French in Algiers called "special procedures"; and iii: Acknowledging its use but justifying it by claiming that harsh measures are necessary to bring the emergency to a more speedy con- clusion. Even "liberal" sections of the community are guilty of these decep- tions, colluding with the majority in turning a blind eye. The second section deals with the involvement of health professionals in torture. It is alleged that a doctor is in the background behind every torturer/ interrogator. He performs a pre- torture examination, monitors the tor- ture process, examines and takes care of the prisoner following the infliction of torture and writes a medical opin- ion or a pathology report. A form of "Fitness for torture" used by the Department of Interrogation asks the doctor to certify whether there are any medical reasons for limitations to a stay in an isolated cell, chaining, hooding or prolonged standing. When the Israeli-Palestinian Physicians for Human Rights protested to the Israeli Medical Association (IMA) about this form, their chairperson, Dr Miriam Tzangen, wrote urgently to the Prime Minister. He replied that it was simply experimental and its use would be dis- continued. Apart from this example, the IMA has remained silent over the mounting evidence of participa- tion by doctors in interrogation by the security services, in spite of the fact that the terms of the Declaration of Tokyo (to which the IMA is a signatory) are clearly being breached. They even failed to take any action when one of their colleagues, a Palestinian doctor, was detained and ill-treated. The workshop at the end of this section of the conference decided on a number of measures which could be expected to improve the record of the health professionals coming into con- tact with evidence of torture. These included better education in ethics for students and doctors, mechanisms of reporting offences anonymously, and making video records of interroga- tions. The third brief section, which deals with the legal struggle against torture, begins with a history of torture in Israel, giving examples of confessions being extracted from Palestinian detainees by torture as early in the Occupation as 1968, when the very existence of the Shabak, the interro- gation organisation, was officially denied though it enjoyed a symbiotic relationship with the police, judiciary and elements of the medical profes- o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 2 .4 .2 5 0 o n 1 A u g u st 1 9 9 6 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_eape37elcffkhapbg57zrvo45y	----	Illuminating the ‘Face’ of Justice: A Meta‐Analytic Examination of Leadership and Organizational Justice Illuminating the ‘Face’ of Justice: A Meta-Analytic Examination of Leadership and Organizational Justice Elizabeth P. Karam, Jinyu Hu, Robert B. Davison, Matthew Juravich, Jennifer D. Nahrgang, Stephen E. Humphrey and D. Scott DeRue Texas Tech University; University of Nevada, Reno; University of Kansas; The University of Akron; Arizona State University; Pennsylvania State University; University of Michigan ABSTRACT A significant body of research has described effective leader behaviours and has connected these behaviours to positive employee outcomes. However, this research has yet to be systematically integrated with organizational justice research to describe how leader behaviours inform justice perceptions. Therefore, we conduct a meta-analysis (k = 166, N = 46,034) to investigate how three types of leader behaviours (task, relational, and change) inform four dimensions of organizational justice (procedural, distributive, interpersonal, and informational) referenced to the leader and to the organization. Further, we examine the joint impact of leader behaviours and justice perceptions on social exchange quality (i.e., leader– member exchange), task performance, and job satisfaction. Our results suggest that leader behaviours differentially inform leader- and organization-focused justice perceptions, and the joint effect of leader behaviours and justice perceptions offer more nuanced explanations for outcomes. Keywords: Leader behaviours, organizational justice, meta-analysis, social exchange theory INTRODUCTION Leadership is one of the most studied phenomenon in management (Cascio and Aguinis, 2008), and an extensive body of research has examined the behaviours that contrib- ute to effective leadership (Dinh et al., 2014). For example, studies that have exam- ined task leader behaviours (i.e., transactional leadership, contingent reward, initiating structure) have articulated that effective leaders define roles, solve problems, and plan Journal of Management Studies 56:1 January 2019 doi: 10.1111/joms.12402 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Address for reprints: Elizabeth P. Karam, Rawls College of Business, Texas Tech University, 703 Flint Ave, Lubbock, TX 79409-2101 (elizabeth.karam@ttu.edu). mailto: mailto:elizabeth.karam@ttu.edu Illuminating the ‘Face’ of Justice 135 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies activities (Bass, 1985; Burns, 1978; Podsakoff et al., 2006; Yukl, 2012). Research into relational leader behaviours (e.g., consideration, servant leadership, participative lead- ership) describe how leaders demonstrate support and develop followers (Fleishman, 1953; Greenleaf, 1977; Spreitzer, 2007; Yukl, 2012). Change leadership research (e.g., transformational, charismatic) has focused on how effective leaders inspire, develop a vision, and encourage innovation (Bass, 1985; Howell and Avolio, 1993; Yukl, 2012). The positive effects of leaders on employee attitudes and behaviours have been noted in numerous conceptual and meta-analytic reviews (e.g., DeRue et al., 2011; Gardner et al., 2010; Judge et al., 2004). Indeed, this body of research contains detailed descriptions of what leaders do and how they affect individual, team, and organizational performance outcomes. A significant stream of organizational justice research has also examined the role of the leader in employee assessments of (un)fair treatment (Colquitt et al., 2013; Rupp and Cropanzano, 2002; Rupp et al., 2014). This research has found that justice perceptions of the leader (i.e., supervisor- or leader-focused justice), rather than perceptions of other organizational entities (e.g., the organization itself), are most strongly related to employee outcomes (Colquitt et al., 2013; Rupp et al., 2014). This is not surprising given that an employee’s relationship with his or her leader ‘may be the single most powerful con- nection an employee can build in an organization’ (Hui et al., 2004, p. 233). Therefore, justice research has identified the leader as an important source of justice (thereby an- swering the question, who is responsible for the (un)just treatment?), yet this research has not adequately answered the question of what behaviours the leader engages in to inform justice perceptions. This has prompted Rupp and Aquino (2009) to suggest that justice research is ‘ripe for integrative application’ with other theories so that more specific guid- ance can be given to leaders about how to promote fairness in the workplace (p. 208). Hence, one purpose of this study is to integrate research on leader behaviours with organizational justice research to explicate the specific behaviours that leaders utilize to inform justice perceptions. In doing so, we attempt to provide greater focus to the ‘face’ (i.e., the leader) of justice. An increased understanding of the relationships between leader behaviours and jus- tice perceptions is important for two reasons. First, employee-leader relationships are often characterized as social exchange relationships and are distinguished from other forms of exchanges by having expectations of longer-term, interdependent interactions that generate trust, reciprocal behaviours, and high-quality relationships (Blau, 1964; Cropanzano and Mitchell, 2005; Mitchell et al., 2012). This dynamic, interactive re- lationship suggests that employees’ justice perceptions may not be based exclusively on the leader’s justice decisions, but that these perceptions may also be informed by a range of the leader’s role-relevant behaviours. For this reason, examining only leader-focused justice perceptions, particularly in relation to an explicit ‘event’ (e.g., a single episode such as a performance appraisal), fails to consider the broader task, relational, and change in- teractions between the leader and the employee and how these interactions may impact justice assessments. Second, studies that examine leader-focused justice commonly focus on research questions related to either (a) investigating the unique effects of leader-focused justice 136 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies dimensions (i.e., procedural, distributive, interpersonal, informational justice) on organi- zational outcomes (e.g., Colquitt et al., 2013; Frazier et al., 2010), or (b) exploring how (un)fair treatment attributed to a leader is similar to or different from (un)fair treatment attributed to others (e.g., the organization; Lavelle et al., 2009; Liao and Rupp, 2005). This has produced a robust body of research informing scholars about which dimension of justice is most strongly related to specific organizational outcomes, and how leader- focused justice more strongly predicts affective and behavioural employee outcomes than justice attributed to other organizational entities (Colquitt et al., 2013; Rupp et al., 2014). However, research has neglected to explore the specific behaviours of the leader that relate to these justice dimensions. The second purpose of this study is to assess the joint effects of leadership and justice in explaining social exchange quality (i.e., leader-member exchange, LMX) and em- ployee outcomes (i.e., task performance and job satisfaction). Accumulated meta-an- alytic research to date has found that leader behaviours and justice perceptions have similar relationships with employee outcomes. For example, the effect size estimate for the relationship between leader-focused justice perceptions and task performance reported in a leader behaviour meta-analysis is .28 (Podsakoff et al., 2006), whereas organizational justice meta-analyses have reported this relationship to range from .16 to .27 (Colquitt et al., 2013; Rupp et al., 2014). Therefore, existing research has ex- amined the independent relationships of leader behaviours and justice perceptions with employee outcomes, but not the joint effects nor the relative importance of these predictors when considered together. This is a striking omission given that this exam- ination would provide a more comprehensive view of the effects of a leader’s decisions and behaviours. Thus, we integrate leadership research with organizational justice research to explore how leader behaviours inform justice perceptions. Then, we conduct a meta-analysis (k = 166, N = 46,034) to provide effect size estimates of the relationships between leader behaviours and justice dimensions, and we examine the joint effects of leadership and justice on LMX, task performance, and job satisfaction. We find that task, relational, and change leader behaviours differentially inform procedural, distributive, interpersonal, and informational justice perceptions. Additionally, combined leader behaviours and justice perceptions offer a more nuanced explanation for the relationships with social exchange quality and performance outcomes as compared to considering only the inde- pendent effects of leadership behaviours or justice on outcomes. Using meta-analysis for this study has several strengths including serving as a tool for theory development related to effective leader behaviours and organizational justice (Combs et al., 2011; Hunter and Schmidt, 2004). Therefore, we develop new theory that describes how leader behaviours have direct implications for justice perceptions. We point to the omission of, and the need for, current leadership theories to clearly ar- ticulate the importance of fairness in leader behaviours, and we describe how taking a more comprehensive view of the decisions and behaviours of the leader, by integrating leader behaviours and justice perceptions, is critical to accurately assessing the impact of a leader on employee outcomes. Illuminating the ‘Face’ of Justice 137 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies THEORETICAL BACKGROUND One purpose of this meta-analysis is to investigate behaviours that inform leader- focused justice perceptions. We therefore examine leader behaviours that are related to four dimensions of organizational justice referenced to the leader (i.e., leader-focused distributive justice, leader-focused procedural justice, leader-focused interpersonal jus- tice, leader-focused informational justice; Colquitt, 2001; Colquitt et al., 2013). Further, given that leaders are often viewed as representatives of the organization (Eisenberger et al., 2010; Levinson, 1965), we also consider how leader behaviours affect percep- tions of organization-focused distributive justice and organization-focused procedural justice.1 The four dimensions of justice are based on distinct assessments of fairness in organizational decision-making. Perceptions of distributive justice, the perceived fairness of outcomes, are based on an employee comparing the ratio of his or her inputs and outcomes to the inputs and outcomes of referent others (Adams, 1965; Ambrose and Arnaud, 2005). Procedural justice suggests that individuals evaluate fairness not just on outcomes, but also on fairness in the decision-making process and the ability to have voice in this process (Levanthal, 1980; Thibaut and Walker, 1975, 1978). Interpersonal justice reflects fairness perceptions of interpersonal treatment, and informational justice reflects fairness perceptions of the adequacy and truthfulness of explanations (Colquitt, 2001; Greenberg, 1993). Justice research is grounded in social exchange theory (SET; Colquitt et al., 2013; Gouldner, 1960; Rupp and Cropanzano, 2002), and this theory provides an important basis for a contextual understanding of the leader-employee relationship. Social exchange relationships are characterized by a high frequency of interactions and task interdepen- dence. Additionally, a characteristic of SET is the notion of time – including knowl- edge of past actions and an expectation of future obligations (Blau, 1964; Gouldner, 1960). Colquitt et al. (2013) suggested that justice attributed to a particular source has expansive time bracketing, lacking a discrete beginning and end. Therefore, in a social exchange relationship, employees are not evaluating a justice ‘event’ but an ‘entity’ with whom the employee has considerable interactions. Indeed, Cropanzano and colleagues (2001) argued that the ‘key issue regarding the relationship paradigm is that respondents are judging the fairness of [the leader]… over time and/or across situations’ (p. 190). Consequently, perceptions of leader-focused justice are likely to take into account nu- merous decisions and behaviours made by the leader given the number of interpersonal exchanges in the relationship (Colquitt, 2008). Managerial role theory has identified decision-making as a key role requirement of leaders in organizations (Dierdorff et al., 2009; Mintzberg, 1973), and numerous scholars have maintained that decision-making is a core component of effective leader behaviours (e.g., Borman and Brush, 1993; Tett et al., 2000; Yukl, 2012). Examples of decision-making responsibilities include planning how to organize and prioritize work; determining how to allocate resources; and assigning responsibilities. Many of these decisions have fairness implications for employees. Employee justice perceptions, 138 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies therefore, are likely to be based on observation and assessment of numerous leader de- cisions. To be precise, each leader decision provides employees with information to po- tentially (re-)assess the fairness of the leader as well as information to (re-)evaluate the effectiveness and competence of the leader (Masterson and Lensges, 2015). Employees, therefore, can both assess the behaviour and appraise the fairness of their leader in their interactions. As a result, we suggest that there is a reciprocal relationship between leader behaviours and justice perceptions and that both of these assessments can inform per- ceptions of the leader. However, decision-making is only one of several key role requirements for organiza- tional leaders. In fact, Yukl (2012) identified three meta-categories of effective leader behaviours based on an analysis of 50 years of research.2 The first meta-category, task leader behaviours, includes previous research on transactional leadership, initiating structure, and contingent reward behaviours (Bass, 1985; Burns, 1978; Fleishman, 1953). Task leader behaviours are focused on efficient use of resources, and they include plan- ning, solving problems, and monitoring progress toward goals (DeRue et al., 2011; Yukl et al., 2002). Task leader behaviours clearly convey information about expectations and standards to clarify employee responsibilities. Therefore, effective task leaders also em- phasize and make allocation decisions related to discretionary and formal rewards for job performance (Howell and Avolio, 1993). The second meta-category, relational leader behaviours, is focused on supporting, rec- ognizing, developing, and empowering individuals (Yukl, 2012). These leader behaviours demonstrate consideration, concern, respect, empathy, and socioemotional support for subordinates (Fleishman, 1953; Greenleaf, 1977). Effective relational behaviours negoti- ate conflict, encourage participation, and focus subordinate attention on group welfare in their own actions and decision making (Bass, 2008). Relational leaders also are par- ticipative in that they seek input from employees, and they treat all group members as equals (Brower et al., 2000). Finally, the third meta-category, change leader behaviours, is focused on facilitating and driving change and innovation within an organization (Yukl, 2012). Change leader behaviours include developing and communicating a vision for change; encouraging sub- ordinates to be creative and to take risks; and seeking alternate perspectives on challenges facing the group (Bass, 1985; Howell and Avolio, 1993). Several dimensions of transfor- mational leadership theory are included in effective change leader behaviours including charisma, inspirational motivation (i.e., inspiring employees to perform at high levels), intellectual stimulation, and idealized influence (Bass, 1985). Further, change leader be- haviours include upholding high ethical standards (Bass, 1985). The three categories of effective behaviours – task, relational, and change – involve distinct behaviours and decisions of a leader. Thus, these leader behaviours are expected to have different implications for justice perceptions. Therefore, we now turn to exam- ining how task, relational, and change leader behaviours uniquely inform procedural, distributive, interpersonal, and informational justice perceptions. Illuminating the ‘Face’ of Justice 139 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies HYPOTHESES Leader Behaviours and Leader-Focused Procedural Justice The most prevalent area of leadership and justice research examines leader behaviours and procedural justice. Procedural justice refers to perceptions of fairness in decision making processes (Colquitt, 2001), and two dominant theories attempt to describe why employees are concerned with fair processes. The control theory perspective, also re- ferred to as the self-interest or instrumental model, argues that employees value voice in the decision-making process because of the potential connection to the resulting out- come (Thibaut and Walker, 1975, 1978). Levanthal (1980) further developed control theory by articulating six rules for fair procedures. These include the consistency rule whereby consistent decisions are made across time and persons. The bias suppression rule which suggests that the decision maker should remove personal biases/interests in the decision-making process. The accuracy rule relates to procedures being followed that are based on valid information. The correctability rule provides a mechanism to reverse a decision. The representativeness rule ensures that procedures ref lect the concerns of those impacted by the decision, and the ethicality rule ensures that decisions conform to moral and ethical standards. The second theoretical perspective, the relational model, proposes that there are psy- chological aspects of procedural justice that are not covered by control theory, and it argues that individuals care about procedural justice because of the relational messages communicated through fair processes (Blader and Tyler, 2015; Lind and Tyler, 1988). Therefore, fairness in the decision-making process matters not solely because of control or voice, but because it reaffirms group values and relational status in the decision-mak- ing process (Tyler and Blader, 2000). Tyler and Lind (1992) further suggest that people seek identity-relevant information through interactions with leaders and that when lead- ers demonstrate concern in the decision-making process, they convey socioemotional support as well as social standing through these interactions. Numerous empirical studies have found support for the combined effects of the control theory perspective and the relational model of procedural justice (e.g., Lind et al., 1990; Tyler, 1989). Based on employee concerns for both control and the relational messages conveyed in fair processes, two leader behaviour categories are most likely to inform perceptions of leader-focused procedural justice. First, effective task leader behaviours involve structur- ing tasks, standardizing procedures, and ensuring rules are followed in a systematic for- mat. These behaviours are likely to satisfy an individual’s control needs for consistency, bias suppression, accuracy, and correctability (Holtz and Harold, 2013). Second, effec- tive relational leader behaviours involve consulting employees about matters that affect them which conveys standing to employees as well as fulfilling their needs for representa- tiveness in the decision-making process (Yukl, 2012). Relational leaders also demonstrate consideration and support which affirms relational status (Holtz and Harold, 2013). Finally, relational leaders also regularly offer praise and recognition which signal group values and make employees feel that decisions are consistent (Ng, 2017). Conversely, change leader behaviours are focused on communicating and inspiring. Therefore, even though the ethical elements of change leader behaviours may be related to the ethicality 140 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies rule, the majority of needs articulated in the control theory perspective are related to task leader behaviours rather than change leader behaviours. Hypothesis 1: Task (a) and relational (b) leader behaviours will exhibit a stronger pos- itive relationship with leader-focused procedural justice perceptions than change leader behaviours. Leader Behaviours and Organization-Focused Procedural Justice Levinson (1965) suggested that there is a transference process whereby employees de- velop a relationship with a leader and ascribe that relationship to the organization. Therefore, employees view leaders not only as ‘individuals in their own right’ but also as agents, or representatives of the organization (Eisenberger et al., 2010, p. 1086). This process suggests that perceptions of (un)fair treatment by the leader are likely to be viewed, at least partially, as (un)fair treatment by the organization. As such, employ- ees may view fairness and treatment in decision making processes through the lens of the leader acting as an embodiment of the organization because they generalize the decision and treatment from their leader to the organization (Cropanzano et al., 2001; Eisenberger et al., 2002; Stinglhamber et al., 2015). Given this, we suggest that effective task and relational leader behaviours will also inform organization-focused procedural justice perceptions and more so than the change leader behaviours following the ratio- nale described above. Hypothesis 2: Task (a) and relational (b) leader behaviours will exhibit a stronger pos- itive relationship with organization-focused procedural justice perceptions than change leader behaviours. Leader Behaviours and Leader-Focused Distributive Justice Distributive justice research is based in equity (Adams, 1965) and social exchange theo- ries (Blau, 1964). These theories position distributive justice as the perceived fairness of outcomes based on employees comparing ‘the ratio of their inputs and outcomes to the inputs and outcomes of referent others. Distributions are [deemed to be] fair to the ex- tent that rewards are proportionally matched to contributions’ (Ambrose and Arnaud, 2005, p. 61). Distributive justice perceptions are then based on equity norms of alloca- tion (Adams, 1965; Colquitt, 2001). Subsequent work by Levanthal (1980) described alternate reasons individuals care about distributive justice by calling attention to sev- eral issues with equity theory. First, he argued that equity theory took a unidimensional rather than multidimensional conception of fairness. That is, by focusing exclusively on the contribution (i.e., equity) rule, equity theory ignored other standards that could inf luence distributive justice perceptions including an employee’s psychological needs. Second, equity theory only considered the final outcome and not the organizational systems, policies, and practices that can lead to allocations (Levanthal, 1980). Numerous others echoed these criticisms. For example, Greenberg (1993) argued that the original Illuminating the ‘Face’ of Justice 141 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies theorizing on distributive justice was too narrowly focused on structural matters at the expense of the social determinants of distributive fairness. Greenberg (1993) asserted that the ‘interpersonal aspects of justice – which thus far have been appreciated only from a procedural justice perspective – are also involved in the distributive side of jus- tice’ (p. 82). We acknowledge both the structural and more contemporary theorizing based on the personal and social determinants of distributive justice and assert that two leader be- haviour categories are most likely to inform perceptions of leader-focused distributive justice: task and change leader behaviours. Effective task leader behaviours involve allo- cating resources among different employees and activities (Yukl, 2012). Therefore, per- ceptions of distributive justice are likely to be enhanced based on the perceived fairness of these decisions. Further, task leader behaviours focus on contingent rewards whereby a leader promises specific rewards in exchange for performance (Bass, 1985). Hence, a clear link between employee efforts and rewards is established. Finally, task leader be- haviours aimed at initiating structure with standardized work environments and uniform performance guidelines should enhance employee perceptions that reward allocations are made equitably. In a similar vein, effective change leaders uphold high ethical stan- dards and make resource allocations decisions in a way that satisfies personal psycholog- ical needs related to equity (Cropanzano et al., 2001; Ng, 2017). That is, change leaders’ ‘moral values take into account the cost and benefits to all stakeholders, the application of distributive justice, and universal moral principles’ when confronting issues related to fairness (Bass, 1985, p. 218). This suggests that change leaders are not only aware of fairness issues, but they are adept at navigating these issues equitably. In contrast, the emphasis of relational leader behaviours is on supporting and recognizing employees which is not the focus of either the structural nor more contemporary theorizing on distributive justice. Hypothesis 3: Task (a) and change (b) leader behaviours will exhibit a stronger positive relationship with leader-focused distributive justice perceptions than relational leader behaviours. Leader Behaviours and Organization-Focused Distributive Justice As argued above, employees may view leaders as representatives of the organization; and therefore, leader behaviours may impact perceptions of organization-focused dis- tributive justice. Eisenberger et al. (2010) have specifically argued that both task (e.g., directive, evaluative, coaching) and change (e.g., developing and/or communicating a vision) leader behaviours are commonly viewed by employees as activities carried out on behalf of the organization. As a result, when a leader is conducting a performance evaluation, the employee may attribute some portion of the reward allocation decision to the policies, processes, or other structural aspects of the organization rather than exclusively to the leader. Similarly, by communicating a vision to encourage greater in- puts, the employee may view potential rewards as coming from the organization rather than exclusively the leader. Therefore, we suggest that effective task and change leader 142 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies behaviours will inform organization-focused distributive justice perceptions as well, whereas relational behaviours are less likely to do so. Hypothesis 4: Task (a) and change (b) leader behaviours will exhibit a stronger positive relationship with organization-focused distributive justice perceptions than relational leader behaviours. Leader Behaviours and Interpersonal Justice Interpersonal justice focuses on perceptions of interpersonal interactions and the extent to which people are treated with respect when decisions are made and outcomes are determined (Colquitt et al., 2013). Holtz and Harold (2009) have described interpersonal justice as encounter-based in that the social exchange transactions between leaders and subordinates occur frequently. Therefore, they argue that interpersonal justice is more salient than other forms of justice. This is consistent with fairness heuristic theory, part of the relational model of justice, which suggests that subordinates make quick assess- ments of the fairness of their leaders based on initial justice encounters (Lind, 2001). Relational leaders are especially skilled at sensing the needs of subordinates and show- ing concern. They listen, provide support, and treat employees with dignity and respect (Bass, 1985; Yukl, 2012). As interpersonal treatment is promoted through respect, status, and showing concern for others, relational leader behaviours are most likely to inform perceptions of leader-focused interpersonal justice. Alternatively, whereas effective task (i.e., structuring tasks, directing activities, coaching) and change (i.e., communicating a vision, encouraging innovation, upholding high ethical standards) leader behaviours may be communicated in a manner that demonstrates respectful treatment, such treat- ment is not the primary focus of these behaviours. Hypothesis 5: Relational leader behaviours will exhibit a stronger positive relationship with interpersonal justice perceptions than will either task (a) or change (b) leader behaviours. Leader Behaviours and Informational Justice Informational justice ref lects fairness perceptions related to the comprehensiveness and truthfulness of explanations (Colquitt, 2001; Greenberg, 1993). It is also encoun- ter-based in that the frequency of interactions between leaders and subordinates in social exchange relationships offers employees numerous opportunities to assess the fairness of information provided. Effective change leader behaviours involve communicating why changes are necessary for employees (Bass, 1985), and the emphasis on open and com- prehensive communication in change leader behaviours allows employees to more fully understand decisions. Further, change leader behaviours encourage employees to seek alternate perspectives, and they promote intellectual stimulation which allows for greater comprehension of an explanation (Zhang et al., 2014). Finally, change leaders generally uphold high ethical standards which should enhance perceptions of the truthfulness Illuminating the ‘Face’ of Justice 143 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies of the explanation (Bass, 1985). Conversely, task leader behaviours are focused on di- recting, coaching, clarifying responsibilities, and monitoring progress. Therefore, these behaviours have less of an emphasis on comprehensiveness of information conveyed and more of a transactional focus. Similarly, relational leader behaviours focus on recog- nizing and showing socioemotional support for employees which is more ref lective of empathic communications rather than comprehensive and truthful explanations. Hypothesis 6: Change leader behaviours will exhibit a stronger positive relationship with informational justice perceptions than will either task (a) or relational (b) leader behaviours. SOCIAL EXCHANGE QUALITY AND EMPLOYEE OUTCOMES The preceding section suggested how leader behaviours inform justice perceptions. We turn now to the second purpose of this study: discussing the joint impact of justice perceptions and leader behaviours in explaining social exchange quality and employee outcomes. Here, we also present a model that describes the nonrecursive nature (i.e., reciprocally interdependent; Bentler and Raykov, 2000) of perceptions of the leader (in- cluding both leader behaviours and justice perceptions) as they impact social exchange quality and performance outcomes (see Figure 1). Social Exchange Quality The quality of the social exchange relationship between a leader and subordinate is commonly assessed by examining LMX (Graen and Scandura, 1987; Liden and Maslyn, 1998). Studies have argued and found support for assertions that both justice perceptions and leader behaviours enhance the quality of social exchange directly or indirectly (e.g., Wayne et al., 2002). However, what is lacking from current research is a better understanding of which leader behaviours or justice dimensions have greater Figure 1. Conceptual model of organizational justice, effective leader behaviours, social exchange quality, and subordinate outcomes 144 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies inf luence on LMX when considered jointly. The target similarity model in the orga- nizational justice literature predicts that there will be stronger relationships between target similar justice perceptions and outcomes (e.g., leader-focused justice➙perceived leader support➙leader-directed citizenship behaviour) than target dissimilar justice perceptions and outcomes (e.g., leader-focused justice➙perceived organizational sup- port➙organization-directed citizenship behaviour; Lavelle et al., 2007). Accordingly, leader-focused justice perceptions should have a stronger relationship with LMX than organization-focused just perceptions. Yet neither the target similarity model nor any theories of leadership specifically address how justice, combined with assessments of the leader’s behaviours, will inf luence social exchange quality. Therefore, given that these perceptions are based on numerous interactions with the focal leader, existing research has an incomplete understanding of the joint effects and relative importance of justice and leader behaviours in explaining LMX. Therefore, we pose the following research question: Research question 1: When considered simultaneously, what unique contributions do leader behaviours and justice dimensions make to explaining variance in LMX, and what is the relative important of these contributions? Task Performance and Job Satisfaction Extant research has demonstrated strong, positive relationships between both leader behaviours and justice perceptions and employee task performance and job satisfaction (Colquitt et al., 2013; DeRue et al., 2011; Podsakoff et al., 2006; Rupp et al., 2014). Indeed, the dominant focus of both leader behaviour and justice research has been the prediction of these outcomes. However, there are conf licting theoretical arguments as to whether leader behaviours or justice dimensions have greater inf luence on subordinate outcomes when considered jointly. For example, Kirkman et al. (2009) suggest that jus- tice will be a stronger predictor of outcomes, and they assert that leader behaviours are a ‘more distal and ambient stimuli’ than justice perceptions because leader behaviours are directed broadly to all individuals in a group (p. 748). Conversely, they argue that justice perceptions vary between individuals, and therefore are more proximal to (and will have a greater effect on) subordinate behaviours. An alternate argument proposed by De Cremer et al. (2007) suggests that leader behaviours exert a stronger inf luence on outcomes because justice practices simply create the essential conditions for leadership to emerge. That is, fair practices ‘create a psychological platform’ on which appraisals of leadership are built which motivate follower performance more directly (De Cremer et al., 2007, p. 1798). In other studies (e.g., Wayne et al., 2002), authors do not make predictions about whether leader behaviours or justice dimensions will have a greater impact on outcomes. Instead, they consider both as unique antecedents and do not ad- dress which is expected to have a greater effect on outcomes. Given this accumulation of research, and the divergence in theorizing related to the effects of leader behaviours and justice perceptions on subordinate outcomes, the Illuminating the ‘Face’ of Justice 145 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies joint effect and relative importance of these predictors when considered simultaneously remains unclear. Therefore, we pose the following second research question: Research question 2: When considered simultaneously, what unique contributions do leader behaviours and justice dimensions make to explaining variance in (a) task performance and (b) job satisfaction, and what is the relative importance of these contributions? DATA AND METHODOLOGY Literature Search and Inclusion Criteria To identify empirical studies related to leader behaviours and organizational justice, we relied on several sources. First, we performed a literature search in four databases (PsycINFO, ISI Web of Science, Business Source Complete, and ProQuest Dissertations & Theses) for published studies, dissertations, and theses from 1900 to December 2017. The search was conducted using the term leader* as well as the justice-related keywords from Colquitt et al. (2001): procedural fairness, procedural justice, distributive fairness, distrib- utive justice, interactional justice, interpersonal treatment, interpersonal justice, informational jus- tice, and equity. Second, we searched for additional studies by sending emails through three Academy of Management (AOM) division listserves (Human Resources Division List, Network for Leadership Scholars, and Organizational Behavior Division List) re- questing published and unpublished studies that examined the relationship between leadership and organizational justice. Third, we searched the previous six years (i.e., 2012–17) of conference programs from the AOM and the Society for Industrial and Organizational Psychology to identify presented papers examining leader behaviours and organizational justice. Emails were then sent to the first authors of these conference papers requesting the unpublished manuscripts. These searches yielded an initial popu- lation of 760 studies to review for possible inclusion. Next, we examined these studies in detail to determine if they met the following inclusion rules established for this study. First, the study had to include both a leader- ship variable and an organizational justice variable. Second, the study had to report an effect size in a correlation matrix or other relevant information that could be used to calculate a zero-order correlation. Third, the study had to include a unique sample. If a sample was used in multiple studies, only one study was included; however, articles that included multiple studies with independent samples were coded separately. Fourth, we included only individual-level effect sizes and excluded group- or organizational-level data. Of the 760 studies in our initial population, 145 met all of these criteria, comprising 126 published studies, 19 unpublished manuscripts, and 166 independent samples (N = 46,034). Table I lists the primary studies coded for this meta-analysis. 146 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Table I. Studies included in the meta-analysis Academy of Management Journal Human Performance Erdogan et al. (2006) Johnson et al. (2009) Kirkman et al. (2009) Spector and Che (2014) Korsgaard et al. (1995) Human Relations Masterson et al. (2000) Cobb and Lau (2015) Tekleab et al. (2005) El Akremi et al. (2010) Tepper (2000) Keller and Dansereau (1995) Zhang et al. (2014) Murphy et al. (2003) Academy of Management Learning & Education International Journal of Contemporary Hospitality Management Graen et al. (2006) Dai et al. (2013) African Journal of Business Management International Journal of Hospitality Management Katrinli et al. (2010) Luo et al. (2014) Asian Journal of Social Psycholog y International Journal of Human Resource Management Jiang and Cheng (2008) Tuytens and Devos (2012) Australian Journal of Management Lee and Wei (2017) Georgalis et al. (2015) International Journal of Nursing Studies Brazilian Business Review Gillet et al. (2013) Cavazotte et al. (2013) International Journal of Sports Science & Coaching Decision Support Systems Kim and Andrew (2015) Tsay et al. (2014) International Journal of Stress Management Educational and Psychological Measurement Riolli and Savicki (2006) Kacmar et al. (1999) International Public Management Journal Employee Relations Potipiroon and Faerman (2016) Katou (2015) Journal of Applied Behavioral Science European Journal of Social Psycholog y Wu et al. (2007) De Cremer and den Ouden (2009) Journal of Applied Psycholog y European Journal of Work and Organizational Psycholog y Choi (2008) Colquitt (2001) De Cremer (2006) Colquitt et al. (2012) Gaudet et al. (2014) De Cremer and Van Knippenberg (2002) Mayer et al. (2008) De Cremer et al. (2005) Piccolo et al. (2008) Dineen et al. (2006) Sparr and Sonnentag (2008) Korsgaard et al. (2002) European Management Journal Rhoades et al. (2001) Grover and Coppins (2012) Thau and Mitchell (2010) Gender, Work and Organization Wayne et al. (2002) Cole (2004) Journal of Applied Social Psycholog y Group & Organization Management Cobb and Frey (1996) Camerman et al. (2007) De Cremer et al. (2007) Carter et al. (2014) Heck et al. (2005) Cropanzano et al. (2002) Lin et al. (2009) Frazier et al. (2010) (Continued) Illuminating the ‘Face’ of Justice 147 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Journal of Business and Psycholog y Journal of Personnel Psycholog y Burton et al. (2008) Camps et al. (2012) Tremblay et al. (2013) Journal of Social Psycholog y Walsh et al. (2018) Chi and Lo (2003) Journal of Business Ethics Leadership Chiaburu and Lim (2008) Kim and Kim (2015) Hsiung (2012) Leadership & Organization Development Journal Xu et al. (2016) Ansari et al. (2007) Journal of Business Research Bhal (2006) DeConinck (2010) Bhal and Ansari (2007) Gumusluoglu et al. (2013) Chiaburu and Marinova (2006) Journal of Experimental Social Psycholog y Fein et al. (2013) van Dijke and De Cremer (2010) Fuchs (2011) Journal of International Business Studies The Leadership Quarterly Pillai et al. (1999) Cho and Dansereau (2010) Journal of Leadership & Organizational Studies Haynie et al. (2014) Song et al. (2012) Sun et al. (2013) Strom et al. (2014) Walumbwa et al. (2008) Tremblay et al. (2018) Yang et al. (2009) Journal of Management Management and Organization Review Elicker et al. (2006) Chen et al. (2009) Karriker and Williams (2009) Li et al. (2014) Pillai et al. (1999) Wu et al. (2012) Roch and Shanock (2006) Military Psycholog y Rosen et al. (2011) Tremblay (2010) Journal of Marketing New Educational Review Netemeyer et al. (1997) Ishaq et al. (2012) Journal of Organizational Behavior Organization Science Andrews and Kacmar (2001) Hui et al. (2004) Aryee et al. (2002) Organizational Behavior and Human Decision Processes Epitropaki (2013) Johnson et al. (2006) Erdogan and Liden (2006) Lian et al. (2012) He et al. (2016) Martinko et al. (2007) Holtz and Harold (2013) van Dijke et al. (2012) Khazanchi and Masterson (2011) Walumbwa et al. (2011) Ogunfowora (2013) Personnel Psycholog y Walumbwa et al. (2009) Ehrhart (2004) Xu et al. (2012) Mansour-Cole and Scott (1998) Journal of Organizational Change Management Kool and van Dierendonck (2012) Table I (Continued ) (Continued) 148 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Data Coding As suggested by meta-analytic reporting standards (Kepes et al., 2013), the data coding process was guided by a set of protocols. First, we generated a list of leader behaviours and or- ganizational justice constructs guided by prior meta-analytic studies (Colquitt et al., 2001, 2013; DeRue et al., 2011; Rupp et al., 2014). If the study met the inclusion criteria above (i.e., contained both a leadership variable and a justice variable), we proceeded to code the correlations for the study variables. We articulated definitions for each of the coded constructs along with a list of common variable names to ensure consistency in coding among authors. An excel worksheet with macros was designated as the standard cod- ing sheet to capture relevant information defined by the protocols. This information included the measures, correlations, means, standard deviations, and reliabilities for all study variables. In addition, we captured the country where the data was collected, the context for the study (e.g., field, lab), and we noted whether the study was published or unpublished.3 Personnel Review Strategic Change Connell et al. (2003) Ferres et al. (2005) Tuytens and Devos (2012) Conference Papers Wat and Shaffer (2005) Rhodes et al. (2013) Psychological Reports Dissertations Tziner et al. (2008) Anand (2012) Procedia-Social and Behavioral Sciences Burlacu (2013) Zeinabadi and Rastegarpour (2010) Hoobler (2002) Public Administration Review Kiersch (2012) Hassan et al. (2014) Lam (2010) Public Management Review Li (2012) Gould-Williams and Davies (2005) Morrison (2015) Public Personnel Management Mosley (2006) Chen and Jin (2014) Oginde (2013) Review of Public Personnel Administration Ren (2008) Meng and Wu (2015) Roberts (2004) Revista De Psicología Del Trabajo Y De Las Organizaciones Sanchez (2006) Shalhoop (2004) Chernyak-Hai and Tziner (2014) Shull (1995) Service Industries Journal Simon (1995) Kang et al. (2012) White (2008) Social Behavior and Personality Williams (2012) Huang et al. (2015) Wilson (2011) Table I (Continued ) Illuminating the ‘Face’ of Justice 149 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Leader behaviours. Consistent with the definitions provided in Yukl (2012) and DeRue et al. (2011), correlations that included leader behaviours were coded as either task, relational, or change. Task leader behaviours are job-focused behaviours aimed at defining task roles and role relationships. They included initiating structure, contingent reward, and management by exception-active (DeRue et al., 2011). Relational leader behaviours focus on providing socioemotional support and demonstrating concern and respect. They include consideration (Bass, 1990), empowering leadership (Conger, 1989), and participative leadership (Kahai et al., 1997). Change leader behaviours are focused on developing and communicating a vision of change, encouraging innovation, and facilitating collective learning. They include the transformational leadership dimensions of charisma, inspirational motivation, intellectual stimulation, and idealized inf luence, and visionary leadership (Bass, 1985). Organizational justice. Following the protocols in existing meta-analyses (Colquitt et al., 2013; Rupp et al., 2014), we coded correlations that included justice variables by dimension (i.e., procedural, distributive, interpersonal, or informational ) and by source, the party referenced as the ‘deliverer’ of the (un)just treatment (leader-focused or organization- focused ). We determined the type and source by examining the specif ic scale item(s) and item instructions in the method section. Consistent with the coding details provided by Rupp et al. (2014), we found that justice type was most often labeled explicitly whereas justice source was not. Therefore, again following the coding protocol of Rupp et al. (2014), when information about the source of justice in the method section was ambiguous, we would review the theoretical arguments and hypotheses to make a coding determination about the justice source. In the case of conf licting information about the source between the method and theory sections, we used the source def ined by the scale items or instructions. Our f inal dataset consists of correlations with six justice variables: leader-focused procedural justice, leader-focused distributive justice, (leader-focused) interpersonal justice, (leader-focused) informational justice, organization-focused procedural justice, and organization- focused distributive justice. Social exchange quality and subordinate outcomes.4 To capture the social exchange quality between the leader and subordinate, we coded bivariate correlations with LMX as a leader-referent social exchange variable (Graen and Scandura, 1987; Liden and Maslyn, 1998). We also coded correlations that included two subordinate outcome variables – one behavioural outcome (i.e., task performance) and one affective outcome (i.e., job satisfaction). Task performance ref lects activities that contribute to the production of goods or provisions of services and that are commonly ref lected in formal job requirements (Rotundo and Sackett, 2002); and job satisfaction captures the positive cognitive or affective emotional response to one’s job (Hulin and Judge, 2003). Consistent with prior research, we conceptualized task performance as a leader-directed outcome variable and job satisfaction as a global, organization-directed outcome variable for purposes of comparing findings with the target similarity model (Cropanzano et al., 2002; Rupp and Cropanzano, 2002; Rupp et al., 2014). 150 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies ANALYSIS AND RESULTS Analytical Procedures We used the procedures recommended by Hunter and Schmidt (2004) in conducting the meta-analysis. We corrected for sampling error and for measurement unreliability in the reported correlations using the Cronbach’s alpha statistics reported in the study. In the small number of cases where reliability information for a variable was not reported, we employed the average reliability of all other studies that did report reliability data for that variable (Hunter and Schmidt, 2004). In addition, several studies reported multiple estimates of the same bivariate relationship (e.g., procedural justice and LMX). For these cases, we created a composite correlation for the relationship of interest (Colquitt et al., 2013; Hunter and Schmidt, 2004). We report the results of the meta-analysis for the rela- tionships between leader behaviours and referent-specific justice dimensions in Table II. For each bivariate relationship, we report the number of studies (k); the sample size (N ); the uncorrected (ρu) population correlation and the 95% confidence interval (CI) around this value; the corrected (ρc) population correlation and the 80% credibility interval (CV) around this value; the standard deviation of the corrected population correlation (SD-ρc); the percentage of variance in each population correlation explained by study artifacts (%Vart); and the homogeneity test score (Q ). Further, as biases may exist in our effect estimates due to selective publication of studies, we conducted Duval and Tweedie’s (2000) nonparametric ‘trim and fill’ analyses of publication bias employing the metatrim command in Stata (Steichen, 2000). We report the additional imputed studies (Δk) and the adjusted population correlation (adj-ρc) resulting from this analysis in Table II. To analyse the hypotheses, we first created a meta-analytically derived correlation matrix for all variables in the study using our coded data. Then, we compared the me- ta-analytic corrected population correlations from this study to published meta-analytic estimates. Where published meta-analytic data was available, we replaced the value in our original data with the published corrected correlation in subsequent analyses unless our data had a higher k and N than the published data. In these cases, we retained our original data.5 The meta-analytic source of the substitutions and the meta-analytic val- ues are presented in Tables III, IV respectively. Employing the resultant meta-analytic correlation matrix, we conducted a dominance analysis (DA) for each hypothesis to investigate the relative importance of leader be- haviours in predicting justice perceptions (Budescu, 1993). DA is a qualitative compari- son of the relative importance of predictors in multiple linear regression (MLR), and it is robust to issues of multicolinearity because the approach is based on a predictor’s added predictive ability in the presence of other predictors. Further, it is more ‘sensitive to the various importance patterns that can emerge’ relative to other analytic techniques (Azen and Budescu, 2003, p. 124). Thus, DA is a superior statistical approach to assessing the relative importance of variables, particularly with a set of correlated predictors (Azen and Budescu, 2003). By using DA, we are able to infer which variables are dominant predictors of outcomes when considered in combination with other predictors. DA calculates and employs the squared multiple correlations of all possible MLR mod- els involving the predictors (2p – 1 models; p = number of predictors) to rank order Illuminating the ‘Face’ of Justice 151 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le I I. M et a- an al yt ic c or re la ti on s am on g le ad er b eh av io u rs a n d re fe re n t- sp ec if ic d im en si on s of o rg an iz at io n al ju st ic e V ar ia bl e k N ρ u 95 % C I ρ c 80 % C V SD -ρ c % V ar t Q Δ k ad j- ρ c L ea de r- fo cu se d pr oc ed ur al ju st ic e T as k le ad er b eh av io u rs 10 2, 53 4 .5 4 [. 4 8 , . 61 ] .6 4 [. 4 6 , . 82 ] .1 4 11 .6 6% 85 .7 6 0 N C R el at io n al le ad er b eh av io u rs 15 3, 4 69 .5 3 [. 4 4, .6 1] .6 0 [. 38 , . 82 ] .1 7 8 .9 4% 16 7. 75 0 N C C h an ge le ad er b eh av io u rs 23 5, 58 0 .5 2 [. 4 6 , . 58 ] .6 0 [. 37 , . 82 ] .1 7 8 .7 9% 26 1. 75 0 N C O rg an iz at io n- fo cu se d pr oc ed ur al ju st ic e T as k le ad er b eh av io u rs 9 6 ,8 30 .2 7 [.1 1, .4 2] .3 2 [- .0 2, .6 6 ] .2 6 2. 37 % 37 9. 21 3 .1 8 R el at io n al le ad er b eh av io u rs 5 2, 26 6 .6 3 [. 54 , . 71 ] .7 2 [. 61 , . 8 4] .0 9 11 .6 7% 42 .8 4 0 N C C h an ge le ad er b eh av io u rs 12 5, 01 4 .5 6 [. 49 , . 63 ] .6 2 [. 4 4, . 8 0] .1 4 6 .7 1% 17 8 .7 7 0 N C L ea de r- fo cu se d di st ri bu ti ve ju st ic e T as k le ad er b eh av io u rs 8 1, 65 3 .4 4 [. 36 , . 52 ] .4 9 [. 36 , . 62 ] .1 0 27 .5 8% 29 .0 1 0 N C R el at io n al le ad er b eh av io u rs 5 78 4 .3 6 [. 25 , . 47 ] .4 3 [. 26 , . 6 0] .1 3 27 .3 5% 18 .2 8 0 N C C h an ge le ad er b eh av io u rs 10 2, 0 87 .3 6 [. 26 , . 4 6 ] .4 0 [. 21 , . 59 ] .1 5 17 .7 5% 56 .3 3 0 N C O rg an iz at io n- fo cu se d di st ri bu ti ve ju st ic e T as k le ad er b eh av io u rs 8 6 ,5 32 .2 9 [.1 1, .4 8] .3 5 [- .0 5, .7 5] .3 1 1. 49 % 53 5. 6 6 5 .1 5 R el at io n al le ad er b eh av io u rs 5 2, 22 7 .5 3 [. 41 , . 65 ] .5 8 [. 39 , . 77 ] .1 5 6 .3 2% 79 .0 9 0 N C C h an ge le ad er b eh av io u rs 6 3, 03 2 .5 1 [. 36 , . 67 ] .5 9 [. 29 , . 89 ] .2 4 2. 45 % 24 4. 81 0 N C In te rp er so na l j us ti ce T as k le ad er b eh av io u rs 9 1, 55 9 .4 9 [. 42 , . 56 ] .5 4 [. 43 , . 6 6 ] .0 9 35 .0 1% 25 .7 1 0 N C R el at io n al le ad er b eh av io u rs 6 91 8 .5 1 [. 4 0, .6 3] .6 0 [. 4 0, . 8 0] .1 5 17 .0 0% 35 .2 9 0 N C C h an ge le ad er b eh av io u rs 6 1, 4 03 .5 5 [. 50 , . 59 ] .6 0 [. 57 , . 63 ] .0 3 77 .4 0% 7. 75 1 .5 9 In fo rm at io na l j us ti ce T as k le ad er b eh av io u rs 8 1, 4 85 .5 8 [. 49 , . 6 6 ] .6 4 [. 49 , . 8 0] .1 2 18 .1 7% 4 4. 0 4 3 .6 0 R el at io n al le ad er b eh av io u rs 5 79 9 .5 6 [. 43 , . 69 ] .6 6 [. 47 , . 85 ] .1 5 15 .6 6% 31 .9 2 1 .6 3 C h an ge le ad er b eh av io u rs 3 97 1 .6 8 [. 63 , . 73 ] .7 5 [. 75 , . 75 ] .0 0 10 0. 0 0% 2. 99 1 .7 4 N ot es : k = n u m b er o f s tu d ie s; N = s am p le s iz e; ρ u = u n co rr ec te d p op u la ti on c or re la ti on ; 9 5% C I = co n fi d en ce in te rv al a ro u n d u n co rr ec te d p op u la ti on c or re la ti on ; ρ c = c or re ct ed p op u la ti on c or re la ti on ; 8 0 % C V = c re d ib il it y in te rv al a ro u n d w ei gh te d co rr ec te d m ea n c or re la ti on ; S D -ρ c = s ta n d ar d d ev ia ti on o f t h e co rr ec te d p op u la ti on c or re la ti on ; % V ar t = p er ce n ta ge o f va ri an ce i n ρ c ex p la in ed b y st u d y ar ti fa ct s; Δ k = n u m b er o f fi lle d st u d ie s in t ri m a n d fi ll an al ys is ; ad j- ρ c = a d ju st ed ρ c af te r ad d in g fi lle d st u d ie s in t ri m a n d fi ll an al ys is ; N C = n o ch an ge i n a d ju st ed ρ c fr om t ri m a n d fi ll an al ys is . 152 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le I II . S ou rc e of c or re la ti on s am on g st ud y va ri ab le s fo r d om in an ce a n al ys es V a ri a b le 1 2 3 4 5 6 7 8 9 10 11 1. T as k le ad er b eh av io u rs 2. R el at io n al le ad er b eh av io u rs N ew 3. C h an ge le ad er b eh av io u rs N ew D et al 11 4. P J- le ad er N ew N ew N ew 5. P J- or ga n iz at io n N ew N ew N ew N ew 6 . D J- le ad er N ew N ew N ew N ew N ew 7. D J- or ga n iz at io n N ew N ew N ew N ew N ew N ew 8 . In te rp er so n al ju st ic e N ew N ew N ew N ew N ew N ew N ew 9. In fo rm at io n al ju st ic e N ew N ew N ew N ew N ew N ew N ew N ew 10 . L M X G & A 16 G & A 16 D et al 12 N ew N ew N ew N ew N ew N ew 11 . T as k p er fo rm an ce P et al 0 6 W & L 93 N 17 C et al 13 C et al 13 C et al 13 C et al 13 C et al 13 C et al 13 M et al 16 12 . Jo b sa ti sf ac ti on JP I0 4 JP I0 4 N 17 N ew N ew N ew N ew N ew N ew D et al 12 Je ta l0 1 N ot es : P J- le ad er = le ad er -f oc u se d pr oc ed u ra l ju st ic e; P J- or ga n iz at io n = or ga n iz at io n -f oc u se d pr oc ed u ra l ju st ic e; D J- le ad er = le ad er -f oc u se d d is tr ib ut iv e ju st ic e; D J- or ga n iz at io n = o rg an iz at io n -f oc u se d d is tr ib ut iv e ju st ic e. N ew = d at a or ig in al t o th is s tu d y; D et al 11 = D eR u e et a l. (2 01 1) ; G & A 16 = G ot tf re d so n a n d A gu in is ( 20 16 ); D et al 12 = D u le b oh n e t al . ( 20 12 ); P et al 0 6 = P od sa ko ff e t al . ( 20 0 6) ; W & L 93 = W of fo rd a n d L is ka (1 9 93 ); N 17 = N g (2 01 7 ); C et al 13 = C ol q u it t et a l. (2 01 3) ; M et al 16 = M ar ti n et a l. (2 01 6) ; J P I0 4 = J u d ge e t al . ( 20 0 4) ; J et al 01 = J u d ge e t al . ( 20 01 ). Illuminating the ‘Face’ of Justice 153 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le I V . M et a- an al yt ic e st im at es o f c or re la ti on s am on g st ud y va ri ab le s 1 2 3 4 5 6 7 8 9 10 11 ρ c ρ c ρ c ρ c ρ c ρ c ρ c ρ c ρ c ρ c ρ c k; N k; N k; N k; N k; N k; N k; N k; N k; N k; N k; N 1. T as k le ad er b eh av io u rs 2. R el at io n al le ad er .7 2 b eh av io u rs 11 ; 3 ,2 36 3. C h an ge le ad er .6 3 .7 1 b eh av io u rs 15 ; 6 ,7 4 4 8 , 1 ,0 74 4. P J- le ad er .6 4 .6 0 .6 0 10 ; 2 ,5 34 15 ; 3 ,4 69 23 ; 5 ,5 8 0 5. P J- or ga n iz at io n .3 2 .7 2 .6 2 .6 4 9; 6 ,8 30 5; 2 ,2 6 6 12 ; 5 ,0 14 6; 1 ,6 9 4 6 . D J- le ad er .4 9 .4 3 .4 0 .6 2 .5 1 8; 1 ,6 53 5; 7 8 4 10 ; 2 ,0 87 33 ; 5 ,5 0 6 4; 6 69 7. D J- or ga n iz at io n .3 5 .5 8 .5 9 .4 4 .6 9 .6 0 8; 6 ,5 32 5; 2 ,2 27 6; 3 ,0 32 19 ; 1 0, 63 9 10 9; 5 8 ,5 29 2; 3 41 8 . In te rp er so n al .5 4 .6 0 .6 0 .6 2 .6 5 .5 0 .4 1 ju st ic e 9; 1 ,5 59 6; 9 18 6; 1 ,4 03 12 ; 2 ,2 81 29 ; 1 2, 8 65 10 ; 1 ,7 50 25 ; 6 ,8 25 9. In fo rm at io n al .6 4 .6 6 .7 5 .7 5 .6 0 .6 0 .4 9 .7 7 ju st ic e 8; 1 ,4 85 5; 7 99 3; 9 71 10 ; 1 ,9 58 16 ; 4 ,0 6 8 8; 1 ,3 77 15 ; 4 ,0 33 31 ; 7 ,1 42 10 . L M X .6 6 .7 4 .7 3 .5 6 .4 9 .4 2 .4 2 .6 2 .6 3 22 ; 5 ,9 73 23 ; 6 ,2 0 9 20 ; 5 ,4 51 29 ; 4 ,8 0 0 35 ; 8 ,6 99 25 ; 3 ,5 69 33 ; 8 ,8 19 16 ; 4 ,2 0 8 12 ; 2 ,9 43 11 . T as k p er fo rm an ce .2 8 .2 5 .2 7 .2 4 .2 0 .2 3 .2 0 .1 6 .2 6 .3 0 17 ; 6 ,1 8 0 36 ; 2 ,6 51 59 ; 1 4, 17 8 13 ; 2 ,6 8 6 42 ; 1 0, 07 5 8; 1 ,8 6 6 30 ; 6 ,9 9 0 11 ; 3 ,5 42 7; 1 ,4 62 14 6; 3 2, 67 0 12 . Jo b sa ti sf ac ti on .2 2 .4 6 .4 8 .4 6 .4 7 .5 3 .4 1 .4 1 .4 6 .4 9 .3 0 72 ; 1 0, 31 7 76 ; 1 1, 37 4 81 ; 3 2, 35 5 18 ; 2 ,5 34 28 ; 2 ,8 20 15 ; 1 ,9 81 30 ; 4 ,6 0 9 7; 1 ,0 19 6; 1 ,0 42 8 8; 2 2, 52 0 31 2; 5 4, 47 1 N ot es : P J- le ad er = le ad er -f oc u se d pr oc ed u ra l j u st ic e; P J- or ga n iz at io n = o rg an iz at io n -f oc u se d pr oc ed u ra l j u st ic e; D J- le ad er = le ad er -f oc u se d d is tr ib ut iv e ju st ic e; D J- or ga n iz at io n = o rg an iz at io n -f oc u se d d is tr ib ut iv e ju st ic e; ρ c = c or re ct ed p op u la ti on c or re la ti on ; k = n u m b er o f s tu d ie s; N = s am p le s iz e. 154 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies predictors by their relative contribution to total variance explained. (A variety of software packages – e.g., the ‘yhat’ package in R: https://cran.r-project.org/web/packages/yhat/ index.html – are available to conduct a DA; see Nimon and Oswald, 2013.) The degree to which a focal predictor dominates other predictors is determined by examining the in- cremental variance explained across the models (Azen and Budescu, 2003). DA ‘indicates whether one IV contributes more unique variance than another IV, either (a) across all possible MLR submodels (i.e., complete dominance) or (b) on average across models of all-possible-subset sizes (i.e., conditional dominance); averaging conditional dominance weights yields general dominance weights’ (Nimon and Oswald, 2013, p. 652). Complete dominance occurs when the incremental variance explained by a focal pre- dictor is greater in all possible MLR models than that of the comparison predictor(s). Conditional dominance occurs when the average incremental variance explained by a focal predictor within each model size (i.e., averaged across the subset of models with the same number of predictors) is greater than that of the comparison predictor(s). General dominance occurs when the average of all conditional dominance measures (i.e., aver- age of the average for each model size) for a focal predictor is greater than that of the comparison predictor(s). Notably, the relative weight measure epsilon (Johnson, 2000) reported in many meta-analyses (e.g., DeRue et al., 2011) is an approximation of the general dominance measure. Dominance types are nested based on the strictness of the type’s definition: general under conditional and conditional under complete. Because each hypothesis has three leader behaviour predictor variables, there are seven subset models and three subset model sizes for each justice criterion. The research questions presented in this study attempt to determine the relative im- portance of leader behaviours and justice variables in explaining LMX, task perfor- mance, and job satisfaction. Here again, we employed DA to examine the rank order of predictor variables (Azen and Budescu, 2003; Budescu, 1993). Each research question had three leader behaviour and six justice predictor variables resulting in 511 subset models and nine subset model sizes for each outcome criterion. RESULTS Hypotheses 1–6 were concerned with the relationships between leader behaviours and dimensions of organizational justice (see Tables V‒VIII). Specifically, Hypothesis 1a pre- dicted that task leader behaviours would have a stronger positive relationship with lead- er-focused procedural justice than change leader behaviours. In support of this, we find that task leader behaviours completely dominate change leader behaviours (i.e., incremen- tal variance explained is greatest for task leader behaviours in all comparison models; see Table V, average ΔR2 = .19 > .15). Therefore, Hypothesis 1a was supported. Hypothesis 1b predicted that relational leader behaviours would have a stronger positive relationship with leader-focused procedural justice than change leader behaviours. Contrary to this hypoth- esis, change leader behaviours exhibit general dominance over relational leader behaviours (see Table V, average ΔR2 = .15 > .14). Therefore, Hypothesis 1b was not supported. Hypothesis 2a predicted that task leader behaviours would have a stronger, positive relationship with organization-focused procedural justice than change leader behaviours. https://cran.r-project.org/web/packages/yhat/index.html https://cran.r-project.org/web/packages/yhat/index.html Illuminating the ‘Face’ of Justice 155 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le V . D om in an ce a n al ys is fo r le ad er b eh av io u rs p re d ic ti n g le ad er - an d or ga n iz at io n -f oc u se d pr oc ed u ra l j u st ic e M od el s iz e Su bs et m od el s C ri te ri on : L ea de r- fo cu se d pr oc ed ur al ju st ic e C ri te ri on : O rg an iz at io n- fo cu se d pr oc ed ur al ju st ic e T as k R el at io na l C ha ng e T as k R el at io na l C ha ng e Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k k = 0 a ve ra ge (n u ll ) 3 .4 1 1 .3 6 2 .3 6 2 .1 0 3 .5 2 1 .3 8 2 k = 1 a ve ra ge 3 .1 0 1 .0 5 3 .0 6 2 .0 4 3 .3 3 1 .1 6 2 k = 2 a ve ra ge 1 .0 6 1 .0 1 3 .0 3 2 .1 1 2 .2 6 1 .0 5 3 O ve ra ll av er ag e .1 9 1 .1 4 3 .1 5 2 .0 9 3 .3 7 1 .2 0 2 M od el R 2 .4 8 .6 5 N ot es : Δ R 2 = a ve ra ge i n cr em en ta l va ri an ce e xp la in ed b y ad d in g fo ca l le ad er b eh av io u r as a p re d ic to r to s u b se t m od el s of s iz e k, w h er e k = n u m b er o f ot h er p re d ic to rs i n t h e su b se t m od el . R an k = r an k or d er o f p re d ic to r in t er m s of r el at iv e im p or ta n ce i n p re d ic ti n g cr it er io n ( b as ed o n a ve ra ge i n cr em en ta l v ar ia n ce e xp la in ed , Δ R 2 ) . O ve ra ll av er ag e re pr es en ts t h e av er ag ed a d d it io n al c on tr ib ut io n t o va ri an ce e xp la in ed e ac h le ad er b eh av io u r ac ro ss a ll su b se t m od el s iz es (i .e ., av er ag e of a ll co n d it io n al v al u es ). T a b le V I. D om in an ce a n al ys is fo r le ad er b eh av io u rs p re d ic ti n g le ad er - an d or ga n iz at io n -f oc u se d d is tr ib ut iv e ju st ic e M od el s iz e Su bs et m od el s C ri te ri on : L ea de r- fo cu se d di st ri bu ti ve ju st ic e C ri te ri on : O rg an iz at io n- fo cu se d di st ri bu ti ve ju st ic e T as k R el at io na l C ha ng e T as k R el at io na l C ha ng e Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k k = 0 a ve ra ge (n u ll ) 3 .2 4 1 .1 8 2 .1 6 3 .1 2 3 .3 4 2 .3 5 1 k = 1 a ve ra ge 3 .0 8 1 .0 3 2 .0 2 3 .0 1 3 .1 4 2 .1 5 1 k = 2 a ve ra ge 1 .0 5 1 .0 0 3 .0 1 2 .0 3 3 .0 8 2 .0 8 1 O ve ra ll av er ag e .1 3 1 .0 7 2 .0 6 3 .0 5 3 .1 8 2 .1 9 1 M od el R 2 .2 6 .4 3 N ot es : Δ R 2 = a ve ra ge i n cr em en ta l va ri an ce e xp la in ed b y ad d in g fo ca l le ad er b eh av io u r as a p re d ic to r to s u b se t m od el s of s iz e k, w h er e k = n u m b er o f ot h er p re d ic to rs i n t h e su b se t m od el . R an k = r an k or d er o f p re d ic to r in t er m s of r el at iv e im p or ta n ce i n p re d ic ti n g cr it er io n ( b as ed o n a ve ra ge i n cr em en ta l v ar ia n ce e xp la in ed , Δ R 2 ) . O ve ra ll av er ag e re pr es en ts t h e av er ag ed a d d it io n al c on tr ib ut io n t o va ri an ce e xp la in ed o f e ac h le ad er b eh av io u r ac ro ss a ll su b se t m od el s iz es (i .e ., av er ag e of a ll co n d it io n al v al u es ). 156 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le V II . D om in an ce a n al ys is fo r le ad er b eh av io u rs p re d ic ti n g in te rp er so n al a n d in fo rm at io n al ju st ic e M od el s iz e Su bs et m od el s C ri te ri on : I nt er pe rs on al ju st ic e C ri te ri on : I nf or m at io na l j us ti ce T as k R el at io na l C ha ng e T as k R el at io na l C ha ng e Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k k = 0 a ve ra ge (n u ll ) 3 .2 9 3 .3 6 1 .3 6 1 .4 1 3 .4 4 2 .5 6 1 k = 1 a ve ra ge 3 .0 3 3 .0 8 2 .0 9 1 .0 5 3 .0 6 2 .1 8 1 k = 2 a ve ra ge 1 .0 1 3 .0 3 2 .0 5 1 .0 2 2 .0 1 3 .1 2 1 O ve ra ll av er ag e .1 1 3 .1 5 2 .1 6 1 .1 6 3 .1 7 2 .2 9 1 M od el R 2 .4 3 .6 2 N ot es : Δ R 2 = a ve ra ge i n cr em en ta l va ri an ce e xp la in ed b y ad d in g fo ca l le ad er b eh av io u r as a p re d ic to r to s u b se t m od el s of s iz e k, w h er e k = n u m b er o f ot h er p re d ic to rs i n t h e su b se t m od el . R an k = r an k or d er o f p re d ic to r in t er m s of r el at iv e im p or ta n ce i n p re d ic ti n g cr it er io n ( b as ed o n a ve ra ge i n cr em en ta l v ar ia n ce e xp la in ed , Δ R 2 ) . O ve ra ll av er ag e re pr es en ts t h e av er ag ed a d d it io n al c on tr ib ut io n t o va ri an ce e xp la in ed b y ea ch le ad er b eh av io u r ac ro ss a ll su b se t m od el s iz es (i .e ., av er ag e of a ll co n d it io n al v al u es ). Illuminating the ‘Face’ of Justice 157 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le V II I. D om in an ce a n al ys is fo r le ad er b eh av io u rs a n d le ad er - an d or ga n iz at io n -f oc u se d ju st ic e pr ed ic ti n g L M X M od el s iz e Su bs et m od el s C ri te ri on : L M X T as k R el at io na l C ha ng e P J- L dr P J- O rg D J- L dr D J- O rg IJ In fo J Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k k = 0 a ve ra ge (n u ll ) 9 .4 4 3 .5 5 1 .5 3 2 .3 1 6 .2 4 7 .1 8 8 .1 8 8 .3 8 5 .4 0 4 k = 1 a ve ra ge 36 .1 7 3 .2 5 1 .2 3 2 .0 7 6 .0 4 7 .0 2 9 .0 2 8 .1 2 4 .1 1 5 k = 2 a ve ra ge 8 4 .1 0 3 .1 6 1 .1 5 2 .0 2 6 .0 2 7 .0 1 9 .0 1 8 .0 6 4 .0 4 5 k = 3 a ve ra ge 12 6 .0 6 3 .1 2 1 .1 1 2 .0 1 7 .0 1 6 .0 0 9 .0 1 8 .0 4 4 .0 2 5 k = 4 a ve ra ge 12 6 .0 4 3 .0 9 1 .0 9 2 .0 0 8 .0 1 5 .0 0 9 .0 1 7 .0 3 4 .0 1 6 k = 5 a ve ra ge 8 4 .0 2 4 .0 8 1 .0 7 2 .0 0 9 .0 1 5 .0 0 7 .0 0 6 .0 3 3 .0 0 8 k = 6 a ve ra ge 36 .0 1 5 .0 7 1 .0 7 2 .0 0 9 .0 2 4 .0 1 6 .0 0 7 .0 3 3 .0 0 8 k = 7 a ve ra ge 9 .0 1 7 .0 7 1 .0 7 2 .0 0 8 .0 2 4 .0 1 5 .0 0 9 .0 3 3 .0 1 6 k = 8 a ve ra ge 1 .0 1 7 .0 8 1 .0 8 2 .0 1 8 .0 4 4 .0 1 6 .0 0 9 .0 4 3 .0 2 5 O ve ra ll av er ag e .1 0 3 .1 6 1 .1 6 2 .0 5 6 .0 5 7 .0 3 8 .0 3 9 .0 9 4 .0 7 5 M od el R 2 .7 2 N ot es : P J- L d r = l ea d er -f oc u se d pr oc ed u ra l ju st ic e; P J- O rg = o rg an iz at io n -f oc u se d pr oc ed u ra l ju st ic e; D J- L d r = l ea d er -f oc u se d d is tr ib ut iv e ju st ic e; D J- O rg = o rg an iz at io n - fo cu se d d is tr ib ut iv e ju st ic e; I J = i n te rp er so n al j u st ic e; I n fo J = i n fo rm at io n al j u st ic e. Δ R 2 = a ve ra ge i n cr em en ta l v ar ia n ce e xp la in ed b y ad d in g fo ca l v ar ia b le a s a pr ed ic to r to su b se t m od el s of s iz e k, w h er e k = n u m b er o f o th er p re d ic to rs i n t h e su b se t m od el . R an k = r an k or d er o f p re d ic to r in t er m s of r el at iv e im p or ta n ce i n p re d ic ti n g cr it er io n ( b as ed on a ve ra ge i n cr em en ta l va ri an ce e xp la in ed , Δ R 2 ) . O ve ra ll av er ag e re pr es en ts t h e av er ag ed a d d it io n al c on tr ib ut io n t o va ri an ce e xp la in ed b y ea ch p re d ic to r ac ro ss a ll su b se t m od el s iz es (i .e ., av er ag e of a ll co n d it io n al v al u es ). 158 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Contrary to this hypothesis, change leader behaviours exhibit general dominance over task leader behaviours (see Table V, average ΔR2 = .20 > .09). Therefore, Hypothesis 2a was not supported. Hypothesis 2b predicted that relational leader behaviours would have a stronger, positive relationship with organization-focused procedural justice than change leader behaviours. In support of this, we find that relational leader behaviours exhibit complete dominance (i.e., incremental variance explained is greatest for rela- tional leader behaviours in all comparison models; see Table V, average ΔR2 = .37 > .20). Therefore, Hypothesis 2b was supported. Notably, the model R2 for leader-focused procedural justice (.48) was less than for organization-focused procedural justice (.65). We return to this in the discussion section. Hypothesis 3a predicted that task leader behaviours would have a stronger, positive relationship with leader-focused distributive justice than relational leader behaviours. In support of this, we find that task leader behaviours completely dominate relational leader behaviours (i.e., incremental variance explained is greatest for task leader behaviours in all comparison models; see Table VI average ΔR2 = .13 > .07). Therefore, Hypothesis 3a was supported. Hypothesis 3b predicted that change leader behaviours would have a stronger positive relationship with leader-focused distributive justice than relational leader behaviours. Contrary to this hypothesis, relational leader behaviours exhibit gen- eral dominance over change leader behaviours (see Table VI, average ΔR2 = .07 > .06). Therefore, Hypothesis 3b was not supported. Hypothesis 4a predicted that task leader behaviours would have a stronger positive re- lationship with organization-focused distributive justice than relational leader behaviours. Contrary to this hypothesis, relational leader behaviours exhibit complete dominance over task leader behaviours (see Table VI, average ΔR2 = .18 > .05). Therefore, Hypothesis 4a was not supported. Hypothesis 4b predicted that change leader behaviours would have a stronger, positive relationship with organization-focused distributive justice than relational leader behaviours. In support of this, we find that change leader behaviours completely dominate relational leader behaviours (i.e., incremental variance explained is greatest for change leader behaviours in all comparison models, see Table VI, average ΔR2 = .19 > .18). Therefore, Hypothesis 4b was supported. Again, worthy of note was that the model R2 for leader-focused distributive justice (.26) was less than for organiza- tion-focused distributive justice (.43). Hypothesis 5 suggested that relational leader behaviours would have a stronger, pos- itive relationship with interpersonal justice than either task (a) or change (b) leader be- haviours. Consistent with this prediction, relational leader behaviours had a stronger positive relationship with interpersonal justice than task leadership behaviours (see Table VII, average ΔR2 = .15 > .11). Therefore, Hypothesis 5a was supported. However, con- trary to this prediction, change leader behaviours generally dominate relational leader behaviours (see Table VII, average ΔR2 = .16 > .15). Therefore, Hypothesis 5b was not supported. Finally, Hypothesis 6 predicted that change leader behaviours would have a stronger positive relationship with informational justice than either task (a) or relational (b) leader behaviours. Incremental variance explained is greatest for change leader behaviours in all comparison models indicating that change leader behaviours completely dominate Illuminating the ‘Face’ of Justice 159 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies task and relational leader behaviours (see Table VII, average ΔR2 = .29 > .16 and .29 > .17 respectively). Therefore, Hypotheses 6a and 6b were supported. The research questions were concerned with the relative importance of leader be- haviours and justice dimensions in predicting LMX, task performance, and job satis- faction. With regard to research question 1, which assessed the relative importance of leader behaviours and leader-focused justice predictors for LMX, we find that leader behaviours (minimum average ΔR2 = .10) demonstrate general dominance over the justice predictors (maximum average ΔR2 = .09). Further, relational leader behaviours exhibit conditional dominance (Rank = 1 for all subset model sizes) over all other pre- dictors and change leader behaviours exhibit conditional dominance (Rank = 2 for all subset model sizes) over all but relational leader behaviours (model R2 = .72, see Table VIII). Research question 2 investigated the relative importance of leader behaviours and leader- and organization-focused justice predictors on (a) task performance and (b) job satisfaction. For task performance, we find that the general dominance rank order of predictors is task then change leader behaviours followed by informational justice, leader-focused distributive justice, and relational leader behaviours (model R2 = .11, see Table IX). For job satisfaction, we find that the general dominance rank order of predictors is leader-focused distributive justice first, followed by relational, change, and task leader behaviours, followed by organization-focused procedural jus- tice (model R2 = .58, see Table X). Table XI presents a summary of results for all of the hypotheses and research questions. DISCUSSION Research into the impact of effective leader behaviours and organizational justice has demonstrated significant, positive effects on employee affective and behavioural out- comes. However, to date, these studies have not systematically investigated how effective leader behaviours inform justice perceptions, nor has research assessed the joint effects of leadership and justice on social exchange quality and employee outcomes. Therefore, the purpose of this research was twofold. First, we meta-analytically examined the re- lationships between three types of leader behaviours and four dimensions of justice ref- erenced to the leader and the organization. Second, we investigated the joint effects of leader behaviours and justice perceptions to gain a greater understanding of how these assessments of a leader impact LMX, task performance, and job satisfaction. With respect to organizational justice research, our results demonstrate that leader be- haviours differentially inform justice perceptions. Specifically, we found that task leader behaviours were the most important predictor of leader-focused procedural and lead- er-focused distributive justice perceptions. These results provide support for the control theory perspective of procedural justice (Thibaut and Walker, 1975, 1978 ) and the equity theory perspective of distributive justice (Adams, 1965). Conversely, relational leader be- haviours were the most important predictor of organization-focused procedural justice, and change leader behaviours were the most important predictor of organization-fo- cused distributive justice. These results are most consistent with the relational models of procedural justice (Lind and Tyler, 1988) and personal determinants perspective of 160 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le I X . D om in an ce a n al ys is fo r le ad er b eh av io u rs a n d le ad er - an d or ga n iz at io n -f oc u se d ju st ic e pr ed ic ti n g ta sk p er fo rm an ce M od el S iz e Su bs et m od el s C ri te ri on : T as k pe rf or m an ce T as k R el at io na l C ha ng e P J- L dr P J- O rg D J- L dr D J- O rg IJ In fo J Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k k = 0 a ve ra ge (n u ll ) 9 .0 8 1 .0 6 4 .0 7 2 .0 6 5 .0 4 7 .0 5 6 .0 4 7 .0 3 9 .0 7 3 k = 1 a ve ra ge 36 .0 4 1 .0 2 4 .0 3 2 .0 2 6 .0 1 8 .0 2 5 .0 1 7 .0 0 9 .0 2 3 k = 2 a ve ra ge 8 4 .0 2 1 .0 1 5 .0 2 2 .0 1 6 .0 0 8 .0 1 4 .0 0 7 .0 0 9 .0 1 3 k = 3 a ve ra ge 12 6 .0 2 1 .0 1 5 .0 1 2 .0 0 7 .0 0 8 .0 1 3 .0 0 9 .0 0 6 .0 1 4 k = 4 a ve ra ge 12 6 .0 2 1 .0 0 6 .0 1 2 .0 0 8 .0 0 7 .0 1 3 .0 0 9 .0 1 4 .0 1 5 k = 5 a ve ra ge 8 4 .0 1 1 .0 0 7 .0 1 3 .0 0 8 .0 0 6 .0 1 4 .0 0 9 .0 1 2 .0 0 5 k = 6 a ve ra ge 36 .0 1 1 .0 0 7 .0 1 3 .0 0 8 .0 0 6 .0 0 4 .0 0 9 .0 1 2 .0 0 5 k = 7 a ve ra ge 9 .0 1 1 .0 0 7 .0 0 3 .0 0 8 .0 0 4 .0 0 5 .0 0 9 .0 1 2 .0 0 6 k = 8 a ve ra ge 1 .0 1 2 .0 0 8 .0 0 6 .0 0 7 .0 1 3 .0 0 5 .0 0 9 .0 1 1 .0 0 4 O ve ra ll av er ag e .0 2 1 .0 1 5 .0 2 2 .0 1 6 .0 1 8 .0 1 4 .0 1 9 .0 1 7 .0 1 3 M od el R 2 .1 1 N ot es : P J- L d r = le ad er -f oc u se d pr oc ed u ra l j u st ic e; P J- O rg = o rg an iz at io n -f oc u se d pr oc ed u ra l j u st ic e; D J- L d r = le ad er -f oc u se d d is tr ib ut iv e ju st ic e; D J- O rg = o rg an iz at io n -f o - cu se d d is tr ib ut iv e ju st ic e; I J = i n te rp er so n al j u st ic e; I n fo J = i n fo rm at io n al j u st ic e. Δ R 2 = a ve ra ge i n cr em en ta l va ri an ce e xp la in ed b y ad d in g fo ca l va ri ab le a s a pr ed ic to r to su b se t m od el s of s iz e k, w h er e k = n u m b er o f o th er p re d ic to rs i n t h e su b se t m od el . R an k = r an k or d er o f p re d ic to r in t er m s of r el at iv e im p or ta n ce i n p re d ic ti n g cr it er io n ( b as ed on a ve ra ge i n cr em en ta l va ri an ce e xp la in ed , Δ R 2 ) . O ve ra ll av er ag e re pr es en ts t h e av er ag ed a d d it io n al c on tr ib ut io n t o va ri an ce e xp la in ed b y ea ch p re d ic to r ac ro ss a ll su b se t m od el s iz es (i .e ., av er ag e of a ll co n d it io n al v al u es ). Illuminating the ‘Face’ of Justice 161 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies T a b le X . D om in an ce a n al ys is fo r le ad er b eh av io u rs a n d le ad er - an d or ga n iz at io n -f oc u se d ju st ic e pr ed ic ti n g jo b sa ti sf ac ti on M od el S iz e Su bs et m od el s C ri te ri on : J ob s at is fa ct io n T as k R el at io na l C ha ng e P J- L dr P J- O rg D J- L dr D J- O rg IJ In fo J Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k Δ R 2 R an k k = 0 a ve ra ge (n u ll ) 9 .0 5 9 .2 1 4 .2 3 2 .2 1 4 .2 2 3 .2 8 1 .1 7 7 .1 7 7 .2 1 4 k = 1 a ve ra ge 36 .0 1 9 .0 7 4 .0 8 2 .0 7 5 .0 7 3 .1 4 1 .0 5 7 .0 4 8 .0 6 6 k = 2 a ve ra ge 8 4 .0 2 7 .0 4 3 .0 5 2 .0 4 4 .0 3 5 .1 0 1 .0 2 8 .0 2 9 .0 3 6 k = 3 a ve ra ge 12 6 .0 4 3 .0 3 4 .0 4 2 .0 2 5 .0 1 6 .1 0 1 .0 1 8 .0 1 9 .0 1 7 k = 4 a ve ra ge 12 6 .0 6 2 .0 4 4 .0 4 3 .0 2 5 .0 1 6 .1 0 1 .0 1 8 .0 0 9 .0 1 7 k = 5 a ve ra ge 8 4 .0 8 2 .0 5 3 .0 4 4 .0 2 5 .0 1 6 .1 1 1 .0 1 7 .0 0 9 .0 0 8 k = 6 a ve ra ge 36 .1 1 2 .0 7 3 .0 5 4 .0 2 5 .0 2 6 .1 2 1 .0 1 7 .0 0 8 .0 0 9 k = 7 a ve ra ge 9 .1 4 1 .0 9 3 .0 7 4 .0 3 6 .0 4 5 .1 4 2 .0 1 7 .0 1 8 .0 1 9 k = 8 a ve ra ge 1 .2 0 1 .1 3 3 .1 0 4 .0 4 6 .0 6 5 .1 7 2 .0 1 9 .0 2 8 .0 2 7 O ve ra ll av er ag e .0 8 4 .0 8 2 .0 8 3 .0 5 6 .0 5 5 .1 4 1 .0 3 8 .0 3 9 .0 4 7 M od el R 2 .5 8 N ot es : P J- L d r = le ad er -f oc u se d pr oc ed u ra l j u st ic e; P J- O rg = o rg an iz at io n -f oc u se d pr oc ed u ra l j u st ic e; D J- L d r = le ad er -f oc u se d d is tr ib ut iv e ju st ic e; D J- O rg = o rg an iz at io n -f o - cu se d d is tr ib ut iv e ju st ic e; I J = i n te rp er so n al j u st ic e; I n fo J = i n fo rm at io n al j u st ic e. Δ R 2 = a ve ra ge i n cr em en ta l va ri an ce e xp la in ed b y ad d in g fo ca l va ri ab le a s a pr ed ic to r to su b se t m od el s of s iz e k, w h er e k = n u m b er o f o th er p re d ic to rs i n t h e su b se t m od el . R an k = r an k or d er o f p re d ic to r in t er m s of r el at iv e im p or ta n ce i n p re d ic ti n g cr it er io n ( b as ed on a ve ra ge i n cr em en ta l va ri an ce e xp la in ed , Δ R 2 ) . O ve ra ll av er ag e re pr es en ts t h e av er ag ed a d d it io n al c on tr ib ut io n t o va ri an ce e xp la in ed b y ea ch p re d ic to r ac ro ss a ll su b se t m od el s iz es (i .e ., av er ag e of a ll co n d it io n al v al u es ). 162 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Table XI. Summary of results for hypotheses and research questions Hypothesis/Research Question Result H1(a): Task leader behaviours will exhibit a stronger positive relationship with leader-focused procedural justice perceptions than change leader behaviours. Supported H1(b): Relational leader behaviours will exhibit a stronger positive relation- ship with leader-focused procedural justice perceptions than change leader behaviours. Not supported H2(a): Task leader behaviours will exhibit a stronger positive relationship with organization-focused procedural justice perceptions than change leader behaviours. Not supported H2(b): Relational leader behaviours will exhibit a stronger positive relation- ship with organization-focused procedural justice perceptions than change leader behaviours. Supported H3(a): Task leader behaviours will exhibit a stronger positive relationship with leader-focused distributive justice perceptions than relational leader behaviours. Supported H3(b): Change leader behaviours will exhibit a stronger positive relationship with leader-focused distributive justice perceptions than relational leader behaviours. Not supported H4(a): Task leader behaviours will exhibit a stronger positive relationship with organization-focused distributive justice perceptions than relational leader behaviours. Not supported H4(b): Change leader behaviours will exhibit a stronger positive relationship with organization-focused distributive justice perceptions than relational leader behaviours. Supported H5(a): Relational leader behaviours will exhibit a stronger positive relation- ship with interpersonal justice perceptions than task leader behaviours. Supported H5(b): Relational leader behaviours will exhibit a stronger positive relationship with interpersonal justice perceptions than will change leader behaviours. Not supported H6(a): Change leader behaviours will exhibit a stronger positive relationship with informational justice perceptions than will either task leader behaviours. Supported H6(b): Change leader behaviours will exhibit a stronger positive relationship with informational justice perceptions than will relational leader behaviours. Supported RQ1: When considered simultaneously, what unique contributions do leader behaviours and justice dimensions make to explaining variance in LMX, and what is the relative important of these contributions? Relational leader behaviours exhibit conditional dominance RQ2(a): When considered simultaneously, what unique contributions do leader behaviours and justice dimensions make to explaining variance in task performance, and what is the relative importance of these contributions? Task & change leader behaviours exhibit general dominance RQ2(b): When considered simultaneously, what unique contributions do leader behaviours and justice dimensions make to explaining variance in job satisfaction, and what is the relative importance of these contributions? Leader-focused distribu- tive justice exhibits general dominance Notes: H = hypothesis; RQ = research question. Illuminating the ‘Face’ of Justice 163 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies distributive justice, which emphasizes the importance of the social and interpersonal aspects of reward allocation decisions (Greenberg, 1993; Levanthal, 1980). Our hypotheses related to interpersonal and informational justice demonstrate sup- port for the role of change leader behaviours in informing these justice dimensions. That is, change leader behaviours that include an emphasis on learning (intellectual stimula- tion), communication, and encouraging employees most inform perceptions of inter- personal and informational justice (Yukl, 2012). However, with regard to interpersonal justice, the overall average variance explained between change and relational behaviours was minimal (.16 vs. .15, respectively), suggesting that both forms of leader behaviours are important to informing interpersonal justice perceptions. Another noteworthy finding of Hypotheses 1–4 was that leader behaviours explain considerably more variance in perceptions of organization-focused procedural and dis- tributive justice than leader-focused procedural and distributive justice. These results provide strong support for the role that leader’s play as an embodiment of the orga- nization (Cropanzano et al., 2001; Eisenberger et al., 2010; Levinson, 1965). Further, these results lend support to the actor-focused model of justice rule adherence proposed by Scott et al. (2009). This model suggests that leaders have various levels of discre- tion in the enactment of justice with the least discretion afforded in distributive justice because of organizational factors (e.g., HR policies or practices) that limit a leader’s decision-making ability. Therefore, whereas effective leader behaviours explained con- siderable variance in all dimensions of justice, they explained the least variance in lead- er-focused distributive justice, which subordinates may attribute to a lack of discretion in outcome allocation decisions. The findings related to our research questions on the unique contributions of leader behaviours and justice dimensions to explaining variance in social exchange quality and employee outcomes are nuanced. With regard to social exchange quality, leader be- haviours dominate the effects. Specifically, relational leader behaviours most inform per- ceptions of LMX followed by change and task leader behaviours. This is consistent with the conceptual definition and empirical evidence for LMX (for a review, see Dulebohn et al., 2012). However, the results also provide some support for the target similarity framework in organizational justice research. That is, of the six target-specific justice dimensions examined in the analysis, three of the four leader-focused justice dimen- sions (interpersonal justice, informational justice, and leader-focused procedural justice), explain, on average, more variance in LMX than the two organization-focused justice dimensions. The results of the research question related to task performance show that task and change leader behaviours were generally the strongest predictors. However, the average variance explained by all leader behaviours and justice dimensions ranged from .01-.02, suggesting that numerous other decisions and behaviours impact task performance. Here again, the results provide support for the target similarity framework given that all four of the leader-focused justice dimensions explained more average variance in task perfor- mance than the two organization-focused justice dimensions. With regard to job satisfaction, leader-focused distributive justice demonstrated con- ditional dominance for all but the very largest models, and all three leader behaviour 164 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies categories (i.e., relational, change, and task) demonstrated general dominance over the remaining justice dimensions. This highlights the central role that leader allocation de- cisions and effective leader behaviours play in overall job satisfaction. Given that job satisfaction is generally considered an organization-directed outcome (Rupp et al., 2014), this finding (along with the pattern of average variance explained by the remaining or- ganization- and leader-focused justice dimensions) is counter to target similarity model predictions. However, it reaffirms the powerful role that leaders play in an employee’s experience in the organization (Hui et al., 2004), and it supports the recommendation by Colquitt and colleagues (2013) for scholars to reference all justice dimensions to the leader to better explain variance in outcomes. Theoretical Implications Our results detail several important theoretical contributions. First, we provide evidence that task, relational, and change leader behaviours play a significant role in informing justice perceptions. In fact, the variance explained by leader behaviours in the models examining leader- and organization-focused justice dimensions ranged from .26 to .65, suggesting that employees take into account multiple behaviours of their leader when assessing organizational justice. This shows that research that focuses only on justice decisions likely provides an incomplete assessment of justice perception formation, and future research should incorporate role-relevant leader behaviours into theoretical mod- els of justice perceptions. The differences in findings between the most important predictors of leader-focused procedural and distributive justice perceptions (task leader behaviours) and organiza- tion-focused procedural and distributive justice perceptions (relational and change leader behaviours, respectively) have implications for justice theories as well. Namely, leaders af- fect perceptions of their own procedural and distributive justice through how they carry out concrete and specific activities, likely because of the proximity and salience of these behaviours (Lind et al., 2001). Conversely, it is the more social behaviours (relational and change) that are informative for representing the organization with regard to justice. Change is inevitable in organizations (Van de Ven and Poole, 1995); we show that ef- fective change leaders can positively influence employee perceptions of organization-fo- cused distributive justice. Further, relational leader behaviours – how effective leaders are at showing consideration and respect to employees – influences whether employees perceive the organization as being procedurally fair. The conceptual model presented in this study and the results of the research questions provide evidence of the need for greater integration of leadership and justice theories. These two literatures have evolved largely independently without articulating (a) the be- haviours of a ‘just leader,’ and (b) the impact of a ‘just leader’ on employee outcomes. We demonstrate that ‘just leaders’ impact outcomes differently than what has been reported in prior meta-analyses that have not taken into account a more holistic view of the leader. For example, the organizational justice meta-analysis by Rupp et al. (2014) presented ev- idence that the variance explained in LMX by justice perceptions was .51. In our study, the variance explained in LMX by leader behaviours and justice perceptions is .72: the overall average variance explained by the three leader behaviours is .42, and the overall Illuminating the ‘Face’ of Justice 165 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies average variance explained by all justice dimensions is .32. This suggests that LMX qual- ity is shaped more by the leader’s behaviours than justice perceptions. As a second ex- ample, the leader behaviour meta-analysis by DeRue et al. (2011) presented data that the variance explained in job satisfaction by task, relational, and change leader behaviours is .51. In our study, when examining the results for job satisfaction, the variance explained by effective leader behaviours is .24 whereas the overall average variance explained by all justice dimensions is .34 (total Model R2 = .58), suggesting that job satisfaction is more influenced by justice perceptions that effective leadership. Therefore, to more accurately assess the effects of leaders in social exchange relationships on employee outcomes, fu- ture research should concurrently consider leader behaviours and justice perceptions. Finally, the high correlations between leader behaviours and justice dimensions (rang- ing from .32 to .75) indicate that employees perceive effective leader behaviours as containing elements of justice. Yet remarkably, there are very few explicit references to justice or fairness in either the theoretical work (e.g., Bass, 1985; Conger and Kanungo, 1987; Fleishman, 1953; Pawar and Eastman, 1997) or the most common measures of effective leader behaviours (e.g., Leader Behavior Description Questionnaire, Stodgill, 1963; Multifactor Leadership Questionnaire, Avolio and Bass, 2004). Therefore, future theoretical and empirical work on effective leader behaviours is needed to clearly artic- ulate and measure the fairness elements of effective task, relational, and change leader behaviours. As a starting point, task leadership research should explicitly articulate the importance of fairness in transactional and contingent reward behaviours such as fairly solving problems and rewarding employee performance equitably. Similarly, relational leadership research should emphasize the fairness aspects of providing support and showing consideration, and change leadership research should emphasize the fair and just communication aspects of a transformational or charismatic leader. Suggestions for Future Research Humphrey (2011) emphasized the importance of advancing the literature through re- views. Therefore, we would like to suggest several opportunities for future research. First, future research on leadership and justice should consider alternate study design and measurement options. Most of the studies in our meta-analysis used the same source of data for measuring leader behaviour and justice variables and/or measured these vari- ables at the same time. Therefore, there could be a ‘halo effect’ affecting the ratings of leadership and justice, and it would be beneficial to disentangle leader behaviours from justice perceptions through measurement that clearly delineates the two. This could be done by examining the collective (i.e., bystander) effects of justice and the contextual factors that may inf luence these perceptions; by separating measurement in time; or by developing multilevel models to explore the effects of executive leadership and justice behaviours on lower level employees. Next, future research should examine moral leader behaviours (e.g., ethical, authentic, moral leadership – see Dinh et al., 2014 for a review) and justice dimensions, and their joint effects on performance outcomes. Given the connection between ethics-related judgments and organizational justice perceptions, these behaviours may have significant implications for justice perceptions. 166 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Also, Rupp and Aguino (2009) have suggested that leadership development pro- grams should include justice as a leadership competency, and we are aware of no research to date to assess these types of programs. The results of our study suggest that leader behaviours and justice dimensions have diverse impacts on outcomes. Therefore, leadership development programs should take into account a broader range of behavioural competencies – including fairness – to have a greater impact on employee outcomes. The primary studies in our sample were largely cross-sectional, so there is a need for future research to examine how perceptions of leadership and justice develop over time. Holtz and Harold (2009) have conducted preliminary research in this area and their re- sults demonstrated that leader-focused justice perceptions do change over time. However, we know little about how leader behaviours inform justice perceptions as the social ex- change relationship develops, stabilizes, and changes. Limitations This study has a number of limitations. First, given that the meta-analyses relied on primary studies as the source of data for analysis, our conclusions are also limited by the limitations in the primary studies. As mentioned above, much of the data measuring leader behaviours and justice dimensions in our study was collected at the same time from the same source. Therefore, the estimated meta-analytic relationships could be inf lated due to common method bias (Podsakoff et al., 2006). In addition, the average number of studies (k) for the correlations between leader behaviours and justice variables is 8.5 (range: 3-23) which is somewhat small relative to the number of independent sam- ples in other leadership and justice meta-analyses. Also, we utilized DA to test the hypotheses because it is a superior statistical method to other types of analyses when assessing the relative importance of correlated predictor variables. However, the interpretation of DA is a qualitative comparison of the relative importance of predictors across model sizes (Budescu, 1993). Therefore, when there are small differences in the average ΔR2 between predictors, the conclusions for these hy- potheses should be interpreted with caution (e.g., Hypothesis 1b found an average ΔR2 of .15 vs. .14 for change and relational leader behaviours, respectively, in predicting leader-focused procedural justice). Furthermore, we were only able to examine a limited number of criterion variables due to the availability of primary data, and consequently we were not able to examine the links between leader behaviours, justice perceptions, and other outcomes such as or- ganizational citizenship behaviours and counterproductive work behaviours. Thus, there is a need and opportunity for scholars to expand research efforts to consider a broader set of employee outcomes. CONCLUSION There has been considerable empirical research into leader behaviours and leader- and organization-focused justice perceptions (Colquitt et al., 2013; DeRue et al., 2011; Rupp Illuminating the ‘Face’ of Justice 167 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies et al., 2014). However, existing research has yet to assess how effective leader behaviours impact these perceptions of fairness. To address this gap, we meta-analysed the relation- ships between three types of leader behaviours and four dimensions of justice referenced to the leader and the organization in an attempt to provide greater focus on the ‘face’ of organizational justice. Our results demonstrate that task, relational, and change leader behaviours differentially impact perceptions of procedural, distributive, interpersonal, and informational justice. Further, we found that leader behaviours and justice dimen- sions have unique effects on employee outcomes when considered jointly. We hope that future research can utilize these findings as a platform for additional empirical and theoretical advancements in leadership and organizational justice research. ACKNOWLEDGMENT The authors would like to acknowledge and thank Fred Oswald for his helpful guidance on the meta-analytic methods and analyses in the manuscript. We are also grateful to Jim Combs and two anonymous reviewers for their thoughtful comments and efforts toward improving the manuscript. NOTES [1] Our data included one study where interpersonal justice and informational justice were referenced to the organization (i.e., all other studies referenced the leader for these dimensions). This was not surprising given that original theorizing on interpersonal and informational justice suggested these dimensions are social determinants of fairness attributable to a specific source (Greenberg, 1977). Therefore, we do not offer predictions regarding organization-focused interpersonal justice nor orga- nization-focused informational justice. [2] Yukl (2012) actually presents four meta-categories: task, relational, change, and external leadership behaviours. External leadership behaviours include networking, external monitoring, and represent- ing the organization to stakeholders outside of the organization. Given that these behaviours are targeted to non-subordinate employees, they are outside the scope of this study and are not included in our discussion. [3] Supplementary materials with additional coding information, including construct coding definitions and a summary of data included in the meta-analysis (i.e., sample size, correlations, reliabilities, variables, and variable scales) can be found online at the Journal of Management Studies website. [4] Consistent with prior meta-analytic research (Colquitt et al., 2011; Rupp et al., 2009), we coded the following social exchange quality variables noting the target of the exchange quality as well: affec- tive commitment (leader-directed, organization-directed); LMX (leader-directed); perceived support (leader-directed, organization-directed); and trust (leader-directed, organization-directed). In addi- tion, we coded the following affective and behavioural outcome variables noting the target: satisfac- tion (leader-directed); global job satisfaction (organization-directed); identification (leader-directed, organization-directed); counterproductive work behaviours (leader-directed, organization-directed); organizational citizenship behaviours (leader-directed, organization-directed); and task perfor- mance (leader-directed). Given the limited data available from primary studies, only LMX, task performance (leader-directed), and global job satisfaction (organization-directed) were used in the analyses. [5] We are not aware of any published meta-analytic estimates for the correlations among referent-spe- cif ic justice variables. Therefore, in response to a comment from the Associate Editor and an anon- ymous reviewer, we supplemented our original coding by searching the reference section of the 168 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies most recent multifoci justice meta-analysis that presents data for the four dimensions of organiza- tional justice (i.e., Colquitt et al., 2011) for studies included in their meta-analysis from the Financial Times 50 journal list. As a result of the search, 84 additional studies (95 independent samples) were coded and added to our dataset. Additional details for this coding are available from the f irst author. REFERENCES Adams, J. S. (1965). ‘Inequity in social exchange’. In Berkowitz, B. (Ed.), Advances in Experimental Social Psycholog y, 2. New York: Academic Press, 267–99. Ambrose, M. L. and Arnaud, A. (2005). ‘Are procedural justice and distributive justice conceptually dis- tinct?’. In Greenberg, J. and Colquitt, J. A. (Eds), Handbook of Organizational Justice. Mahwah, NJ: Lawrence Erlbaum Associates, 59–84. Avolio, B. J. and Bass, B. M. (2004). Multifactor Leadership Questionnaire, 3rd edition. Palo Alto, CA: Mind Garden. Azen, R. and Budescu, D. V. (2003). ‘The dominance analysis approach for comparing predictors in mul- tiple regression’. Psychological Methods, 8, 129–48. Bass, B. M. (1985). Leadership and Performance Beyond Expectations. New York: Free Press. Bass, B. M. (2008). The Bass Handbook of Leadership, 4th edition. New York: Free Press. Bass, B. M. (1990). ‘From transactional to transformational leadership: Learning to share the vision’. Organizational Dynamics, 18, 19–31. Bentler, P. M. and Raykov, T. (2000). ‘On measures of explained variance in nonrecursive structural equation models’. Journal of Applied Psycholog y, 85, 125–31. Blader, S. L. and Tyler, T. R. (2015). ‘Relational models of procedural justice’. In Cropanzano, R. and Ambrose, M. (Eds), The Oxford Handbook of Justice in the Workplace. New York: Oxford University Press, 351–70. Blau, P. M. (1964). Exchange and Power in Social Life. New Brunswick, NJ: Transaction Publishers. Borman, W. C. and Brush, D. H. (1993). ‘More progress toward a taxonomy of managerial performance requirements’. Human Performance, 6, 1–21. Brower, H. H., Schoorman, F. D. and Tan, H. H. (2000). ‘A model of relational leadership: The integra- tion of trust and leader-member exchange’. The Leadership Quarterly, 11, 227–50. Budescu, D. V. (1993). ‘Dominance analysis: A new approach to the problem of relative importance of predictors in multiple regression’. Psychological Bulletin, 114, 542–51. Burns, J. M. (1978). Leadership. New York: Harper & Row. Cascio, W. F. and Aguinis, H. (2008). ‘Research in industrial and organizational psychology from 1963– 2007: Changes, choices, and trends’. Journal of Applied Psycholog y, 93, 1062–81. Colquitt, J. A. (2001). ‘On the dimensionality of organizational justice: A construct validation of a mea- sure’. Journal of Applied Psycholog y, 86, 386–400. Colquitt, J. A. (2008). ‘Two decades of organizational justice: Findings, controversies, and future direc- tions’. In Cooper, C. L. and Barling, J. (Eds), Sage Handbook of Organizational Behavior. Newbury Park, CA: Sage, 73–88. Colquitt, J. A., Scott, B. A., Rodell, J. B., Long, D. M., Zapata, C. P., Conlon, D. E. and Wesson, M. J. (2013). ‘Justice at the millennium, a decade later: A meta-analytic test of social exchange and af- fect-based perspectives’. Journal of Applied Psycholog y, 98, 199–236. Combs, J. G., Ketchen Jr., D. J., Crook, R. T. and Roth, P. L. (2011). ‘Assessing cumulative evidence within “macro” research: Why meta-analysis should be preferred over vote counting’. Journal of Management Studies, 48, 178–97. Conger, J. A. (1989). ‘Leadership: The art of empowering others’. Academy of Management Executive, 3, 17–24. Conger, J. A. and Kanungo, R. N. (1987). ‘Toward a behavioral theory of charismatic leadership in orga- nizational settings’. Academy of Management Review, 12, 637–47. Cropanzano, R., Byrne, Z. S., Bobocel, D. R. and Rupp, D. E. (2001). ‘Moral virtues, fairness heuristics, social entities, and other denizens of organizational justice’. Journal of Vocational Behavior, 58, 164–209. Cropanzano, R. and Mitchell, M. S. (2005). ‘Social exchange theory: An interdisciplinary review’. Journal of Management, 31, 874–900. Cropanzano, R., Prehar, C. A. and Chen, P. Y. (2002). ‘Using social exchange theory to distinguish pro- cedural from interactional justice’. Group & Organization Management, 27, 324–51. Illuminating the ‘Face’ of Justice 169 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies De Cremer, D., van Dijke, M. and Bos, A. E. R. (2007). ‘When leaders are seen as transformational: The effects of organizational justice’. Journal of Applied Social Psycholog y, 37, 1797–816. DeRue, D. S., Nahrgang, J. D., Wellman, N. E. D. and Humphrey, S. E. (2011). ‘Trait and behavioral the- ories of leadership: An integration and meta-analytic test of their relative validity’. Personnel Psycholog y, 64, 7–52. Dierdorff, E. C., Rubin, R. S. and Morgeson, F. P. (2009). ‘The milieu of managerial work: an integrative framework linking work context to role requirements’. Journal of Applied Psycholog y, 94, 972–88. Dinh, J. E., Lord, R. G., Gardner, W. L., Meuser, J. D., Liden, R. C. and Hu, J. (2014). ‘Leadership the- ory and research in the new millennium: Current theoretical trends and changing perspectives’. The Leadership Quarterly, 25, 36–62. Duval, S. and Tweedie, R. (2000). ‘A nonparametric “Trim and Fill” method of accounting for publication bias in meta-analysis’. Journal of the American Statistical Association, 95, 89–98. Dulebohn, J. H., Bommer, W. H., Liden, R. C., Brouer, R. L. and Ferris, G. R. (2012). ‘A meta-analysis of antecedents and consequences of leader-member exchange: Integrating the past with an eye toward the future’. Journal of Management, 38, 1715–59. Eisenberger, R., Karagonlar, G., Stinglhamber, F., Neves, P., Becker, T. E., Gonzalez-Morales, M. G. and Steiger-Mueller, M. (2010). ‘Leader–member exchange and affective organizational commit- ment: The contribution of supervisor’s organizational embodiment’. Journal of Applied Psycholog y, 95, 1085–103. Eisenberger, R., Stinglhamber, F., Vandenberghe, C., Sucharski, I. L. and Rhoades, L. (2002). ‘Perceived supervisor support: contributions to perceived organizational support and employee retention’. Journal of Applied Psycholog y, 87, 565–73. Fleishman, E. A. (1953). ‘The description of supervisory behavior’. Journal of Applied Psycholog y, 37, 1–6. Frazier, M. L., Johnson, P. D., Gavin, M., Gooty, J. and Snow, D. B. (2010). ‘Organizational justice, trust- worthiness, and trust: A multifoci examination’. Group & Organization Management, 35, 39–76. Gardner, W. L., Lowe, K. B., Moss, T. W., Mahoney, K. T. and Cogliser, C. C. (2010). ‘Scholarly leader- ship of the study of leadership: A review of The Leadership Quarterly’s second decade, 2000–2009’. The Leadership Quarterly, 21, 922–58. Gottfredson, R. K. and Aguinis, H. (2016). ‘Leadership behaviors and follower performance: Deductive and inductive examination of theoretical rationales and underlying mechanisms’. Journal of Organizational Behavior, 38, 558–91. Gouldner, A. W. (1960). ‘The norm of reciprocity: A preliminary statement’. American Sociological Review, 25, 161–78. Graen, G. B. and Scandura, T. A. (1987). ‘Toward a psychology of dyadic organizing’. Research in Organizational Behavior, 9, 175–208. Greenberg, J. (1993). ‘The social side of fairness: Interpersonal and informational classes of organiza- tional justice’. In Cropanzano, R. (Ed.), Justice in the Workplace: Approaching Fairness in Human Resource Management. Hillsdale, NJ: Lawrence Erlbaum Associates, 79–103. Greenleaf, R. K. (1977). Servant Leadership: A Journey into the Nature of Legitimate Power and Greatness. New York: Paulist Press. Holtz, B. C. and Harold, C. M. (2009). ‘Fair today, fair tomorrow? A longitudinal investigation of overall justice perceptions’. Journal of Applied Psycholog y, 94, 1185–99. Holtz, B. C. and Harold, C. M. (2013). ‘Effects of leadership consideration and structure on employee perceptions of justice and counterproductive work behavior’. Journal of Organizational Behavior, 34, 492–519. Howell, J. M. and Avolio, B. J. (1993). ‘Transformational leadership, transactional leadership, locus of control, and support for innovation: Key predictors of consolidated-business-unit performance’. Journal of Applied Psycholog y, 78, 891–902. Hui, C., Lee, C. and Rousseau, D. M. (2004). ‘Employment relationships in China: Do workers related to the organization or to people’. Organization Science, 15, 232–40. Hulin, C. L. and Judge, T. A. (2003). ‘Job attitudes’. In Borman, W. C., Ilgen, D. R. and Klimoski, R. J. (Eds), Handbook of Psycholog y: Industrial and Organizational Psycholog y. Hoboken, NJ: John Wiley & Sons, 255–76. Humphrey, S. E. (2011). ‘What does a great meta-analysis look like?’. Organizational Psycholog y Review, 1, 99–103. Hunter, J. E. and Schmidt, F. L. (2004). Methods of Meta-analysis: Correcting Error and Bias in Research Findings, 2nd edition. Thousand Oaks, CA: Sage. 170 E. P. Karam et al. © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Johnson, J. W. (2000). ‘A heuristic method for estimating the relative weight of predictor variables in mul- tiple regression’. Multivariate Behavioral Research, 35, 1–19. Judge, T. A., Piccolo, R. E. and Ilies, R. (2004). ‘The forgotten ones? The validity of consideration and initiating structure in leadership research’. Journal of Applied Psycholog y, 89, 36–51. Judge, T. A., Thoresen, C. J., Bono, J. E. and Patton, G. K. (2001). ‘The job satisfaction-job performance relationship: A qualitative and quantitative review’. Psychological Bulletin, 127, 376–407. Kahai, S. S., Sosik, J. J. and Avolio, B. J. (1997). ‘Effects of leadership style and problem structure on work group process and outcomes in an electronic meeting system environment’. Personnel Psycholog y, 50, 121–46. Kepes, S., McDaniel, M. A., Brannick, M. T. and Banks, G. C. (2013). ‘Meta-analytic reviews in the orga- nizational sciences: Two meta-analytic schools on the way to MARS (the Meta-Analytic Reporting Standards)’. Journal of Business and Psycholog y, 28, 123–43. Kirkman, B. L., Chen, G., Farh, J.-L., Chen, Z. X. and Lowe, K. B. (2009). ‘Individual power distance orientation and follower reactions to transformational leaders: A cross-level, cross-cultural examina- tion’. Academy of Management Journal, 52, 744–64. Lavelle, J. J., McMahan, G. C. and Harris, C. M. (2009). ‘Fairness in human resource management, so- cial exchange relationships, and citizenship behavior: Testing linkages of the target similarity model among nurses in the United States’. International Journal of Human Resource Management, 20, 2419–34. Lavelle, J. J., Rupp, D. E. and Brockner, J. (2007). ‘Taking a multifoci approach to the study of justice, social exchange, and citizenship behavior: The target similarity model’. Journal of Management, 33, 841–66. Levanthal, G. S. (1980). ‘What should be done with equity theory? New approaches to the study of fairness in social relationships’. In Gergen, K. J., Greenberg, M. S. and Willis, R. H. (Eds), Social Exchange: Advances in Theory and Research. New York: Plenum Press, 27–55. Levinson, H. (1965). ‘Reciprocation: The relationship between man and organization’. Administrative Science Quarterly, 9, 370–90. Liao, H. and Rupp, D. E. (2005). ‘The impact of justice climate and justice orientation on work outcomes: A cross-level multifoci framework’. Journal of Applied Psycholog y, 90, 242–56. Liden, R. C. and Maslyn, J. M. (1998). ‘Multidimensionality of leader-member exchange: An empirical assessment through scale development’. Journal of Management, 24, 43–72. Lind, E. A. (2001). ‘Fairness heuristic theory: Justice judgments as pivotal cognitions in organizational relations’. In Greenberg, J. (Ed.), Advances in Organizational Justice. Stanford, CA: Stanford University Press, 56–88. Lind, E. A., Kanfer, R. and Earley, P. C. (1990). ‘Voice, control, and procedural justice: Instrumental and noninstrumental concerns in fairness judgments’. Journal of Personality and Social Psycholog y, 59, 952–59. Lind, E. A., Kray, L. and Thompson, L. (2001). ‘Primacy effects in justice judgments: Testing predictions from fairness heuristic theory’. Organizational Behavior and Human Decision Processes, 85, 189–210. Lind, E. A. and Tyler, T. R. (1988). The Social Psycholog y of Procedural Justice. New York: Plenum Press. Masterson, S. S. and Lensges, M. (2015). ‘Leader–member exchange and justice’. In Bauer, T. N. and Erdogan, B. (Eds), The Oxford Handbook of Leader-Member Exchange. Oxford: Oxford University Press, 67–84. Martin, R., Guillaume, Y., Thomas, G., Lee, A. and Epitropaki, O. (2016). ‘Leader-member exchange (LMX) and performance: A meta-analytic review’. Personnel Psycholog y, 69, 67–121. Mintzberg, H. (1973). The Nature of Managerial Work. New York: Harper & Row. Mitchell, M. S., Cropanzano, R. S. and Quisenberry, D. M. (2012). ‘Social exchange theory, exchange re- sources, and interpersonal relationships: A modest resolution of theoretical difficulties’. In Tornblom, K. and Kazemi, A. (Eds), Handbook of Social Resource Theory. New York: Springer, 99–118. Ng, T. W. (2017). ‘Transformational leadership and performance outcomes: Analyses of multiple media- tion pathways’. The Leadership Quarterly, 28, 385–417. Nimon, K. and Oswald, F. L. (2013). ‘Understanding the results of multiple linear regression: Beyond standardized regression coefficients’. Organizational Research Methods, 16, 650–74. Pawar, B. S. and Eastman, K. K. (1997). ‘The nature and implications of contextual inf luences on trans- formational leadership: A conceptual review’. Academy of Management Review, 22, 80–109. Podsakoff, P. M., Bommer, W. H., Podsakoff, N. P. and MacKenzie, S. B. (2006). ‘Relationships between leader reward and punishment behavior and subordinate attitudes, perceptions, and behaviors: A meta-analytic review of existing and new research’. Organizational Behavior and Human Decision Processes, 99, 113–42. Illuminating the ‘Face’ of Justice 171 © 2018 John Wiley & Sons Ltd and Society for the Advancement of Management Studies Rotundo, M. and Sackett, P. R. (2002). ‘The relative importance of task, citizenship, and counterproduc- tive performance to global ratings of job performance: A policy-capturing approach’. Journal of Applied Psycholog y, 87, 66–80. Rupp, D. E. and Aquino, K. F. (2009). ‘Nothing so practical as a good justice theory’. Industrial and Organizational Psycholog y, 2, 205–10. Rupp, D. E. and Cropanzano, R. (2002). ‘The mediating effects of social exchange relationships in pre- dicting workplace outcomes from multifoci organizational justice’. Organizational Behavior and Human Decision Processes, 89, 925–46. Rupp, D. E., Shao, R., Jones, K. S. and Liao, H. (2014). ‘The utility of a multifoci approach to the study of organizational justice: A meta-analytic investigation into the consideration of normative rules, moral accountability, bandwidth-fidelity, and social exchange’. Organizational Behavior and Human Decision Processes, 123, 159–85. Scott, B. A., Colquitt, J. A. and Paddock, E. L. (2009). ‘An actor-focused model of justice rule adherence and violation: The role of managerial motives and discretion’. Journal of Applied Psycholog y, 94, 756–69. Spreitzer, G. (2007). ‘Giving peace a chance: Organizational leadership, empowerment, and peace’. Journal of Organizational Behavior, 28, 1077–95. Steichen, T. J. (2000). ‘Updates of tests for publication bias in meta-analysis’. Stata Technical Bulletin, 57, 4. Stinglhamber, F., Marique, G., Caesens, G., Hanin, D. and De Zanet, F. (2015). ‘The inf luence of trans- formational leadership on followers’ affective commitment: The role of perceived organizational support and supervisor’s organizational embodiment’. Career Development International, 20, 583–603. Stodgill, R. M. (1963). Manual for the Leader Behavior Description Questionnaire – Form XII. Columbus, OH: Ohio State University, Bureau of Business Research. Tett, R. P., Guterman, H. A., Bleier, A. and Murphy, P. J. (2000). ‘Development and content validation of a “hyperdimensional” taxonomy of managerial competence’. Human Performance, 13, 205–51. Thibaut, J. and Walker, L. (1975). Procedural Justice: A Psychological Analysis. Hillsdale, NJ: Lawrence Erlbaum Associates. Thibaut, J. and Walker, L. (1978). ‘A theory of procedure’. California Law Review, 66, 541–66. Tyler, T. R. (1989). ‘The psychology of procedural justice: A test of the group-value model’. Journal of Personality and Social Psycholog y, 57, 830–38. Tyler, T. R. and Blader, S. L. (2000). Cooperation in Groups: Procedural Justice, Social Identity, and Behavioral Engagement. New York: Psychology Press. Tyler, T. R. and Lind, E. A. (1992). ‘A relational model of authority in groups’. Advances in Experimental Social Psycholog y, 25, 115–91. Van de Ven, A. H. and Poole, M. S. (1995). ‘Explaining development and change in organizations’. Academy of Management Review, 20, 510–40. Wayne, S. J., Shore, L. M., Bommer, W. H. and Tetrick, L. E. (2002). ‘The role of fair treatment and rewards in perceptions of organizational support and leader-member exchange’. Journal of Applied Psycholog y, 87, 590–98. Wofford, J. C. and Liska, L. Z. (1993). ‘Path-goal theories of leadership: A meta-analysis’. Journal of Management, 19, 857–876. Yukl, G. (2012). ‘Effective leadership behavior: What we know and what questions need more attention’. Academy of Management Perspectives, 26, 66–85. Yukl, G., Gordon, A. and Taber, T. (2002). ‘A hierarchical taxonomy of leadership behavior: Integrating a half century of behavior research’. Journal of Leadership & Organizational Studies, 9, 15–32. Zhang, Y., LePine, J. A., Buckman, B. R. and Wei, F. (2014). ‘It’s not fair… or is it? The role of justice and leadership in explaining work stressor–job performance relationships’. Academy of Management Journal, 57, 675–97. S U P P O R T I N G I N F O R M A T I O N Additional supporting information may be found online in the Supporting Information section at the end of the article. 
work_echuputsiffsdffptirhn7ayd4	----	Humane Forensic Practice Serves Social Justice Humane Forensic Practice Serves Social Justice Anna R. Weissman, MD, and Philip J. Candilis, MD In response to a call for revision of the current procedures for involuntary treatment in Massachusetts, this commentary explores the ethics basis for such institutional reform. In the decades since the landmark Rogers v. Commissioner decision of 1983, the ethics foundation for forensic psychiatry has evolved from a purist approach that prioritized legal values above therapeutic ones. Building on systemic approaches by Gutheil et al. and Ciccone and Clements, Candilis and Martinez, for example, have argued that a robust professional ethic requires moving beyond the strict role theory of the adversarial system to consider broader approaches that integrate multiple perspec- tives: the ultimate goal is protection of vulnerable people and ideas. In this commentary, we suggest that the current system for involuntary treatment does not protect the vulnerable people it ought to serve, failing the neglected goal of social justice. J Am Acad Psychiatry Law 46:454 –57, 2018. DOI:10.29158/JAAPL.003796-18 This important piece by Biswas et al.1 examines the unintended consequences of the process for involun- tary treatment in Massachusetts following the 1983 Rogers v Commissioner decision by the Massachusetts Supreme Judicial Court.2 The authors make a strong case that the delays in treatment inherent in the cur- rent adversarial system result in mental deterioration that deprives patients of liberation from symptoms and leads to a more severe course of illness. The au- thors describe the current process as a consequence of “the steady development of a mental health jurispru- dence dedicated to the preservation of human rights,”1 acknowledging that self-determination and autonomy are critical aspects of this perspective (Ref. 1, p 447). While we agree that autonomy is an important ethics principle, it is only one aspect of human rights. Empowering patients to make in- formed decisions about their treatment is central to the practice of medicine and law; but the key word is “informed.” When a person is unable to make an informed decision about treatment due to mental illness, the unwavering pursuit of autonomy be- comes a distortion of human rights. The U.S. legal system addresses conflicting values by pitting them against one another. Similarly, the current system of mental health jurisprudence is a battlefield where individual good vies with social good and medical values clash with legal ones. These polarized constructs can lead to tunnel vision, obfus- cating rather than elucidating the complex human condition. In contrast, the human mind traffics in ambivalence. From molecules to cells to circuits, the brain is engaged in a constant, active, and sophisti- cated balancing act; not “either/or,” but “both/and.” At the intersection of medicine and the law, forensic psychiatry is ideally positioned to navigate conflict- ing values and uncover complex truths. The ethics foundation of forensic psychiatry has evolved in recent decades to embrace a homeostatic balance between conflicting principles.3 In their the- ory of decision analysis, Gutheil and colleagues4 pointed out the complexity of interactions between individuals, their institutions, and society at large. They suggested a decision-making system that bal- ances the tension of values, tension between profes- sions, and tension between objective and subjective factors. They eschewed a purist view of strict roles and argued for a collaborative network that addresses the moral claims of the individual, clinician, and so- ciety all at once. Ciccone and Clements5 also em- braced this synthesis in their systems approach to Dr. Weissman is Associate Director, Psychiatry Residency Training Pro- gram, Assistant Professor of Psychiatry and Behavioral Sciences, George Washington University School of Medicine, Washington, DC. Dr. Can- dilis is Interim Director of Medical Affairs, Saint Elizabeths Hospital, and Professor of Psychiatry and Behavioral Sciences, George Washington Uni- versity School of Medicine, Washington, DC. Address correspondence to: Anna R. Weissman, MD, Department of Psychiatry & Behavioral Sci- ences, George Washington University School of Medicine and Health Sciences, 2120 L Street, NW, Suite 600, Washington, DC 20037. E-mail: anna.weissman@gmail.com Disclosures of financial or other potential conflicts of interest: None. 454 The Journal of the American Academy of Psychiatry and the Law C O M M E N T A R Y forensic psychiatry. They suggested an ethics model that reflects “the inevitable conflict between two dif- ferent levels of good and suggests homeostatic mech- anisms for dealing with such conflicts” (Ref. 5, p 265). Their dialectical approach offers a broader, more nuanced perspective on the problem of invol- untary treatment: “Respect for individuals is a more useful concept than rights and autonomy concepts in the development of a medical ethic . . . we must re- define respect for individuals to include empathy and concern for the individual’s best interest, rather than only respect for reason” (Ref. 5, p 275). As Biswas et al.1 point out, there is an inherent paradox in for- going a best-interest model for substituted judgment when incompetency stems from treatable mental ill- ness; if the person were competent, he would not need involuntary treatment. Beyond balancing conflicting principles, the eth- ics practice of forensic psychiatry requires attention to the stories of marginalized individuals. In his nar- rative approach to forensic ethics, Ezra Griffith called for a cultural formulation, contending that there could be no justice in ethics frameworks that ignore the different treatment of dominant and nondomi- nant groups.6 Matthew Wynia and colleagues7 sim- ilarly pointed to the importance of advocating for the disenfranchised in their 1999 article in the New Eng- land Journal of Medicine, arguing that “professions protect not only vulnerable persons but also vulner- able social values” (Ref. 7, p 1612). Candilis and Martinez8 built on these ideas in their unifying ethics theory of robust professionalism, integrating the complex personal, social, and institutional commit- ments of forensic work. They described the forensic encounter as a moral relationship and proposed us- ing an individual’s narrative to enrich the way that principles are applied to specific cases. Biswas et al.1 echo the call for a more nuanced approach to indi- viduals and their stories: “A single law [to determine capacity for those with mental illness] cannot address the entire problem . . . it is a blunt instrument” (Ref. 1, p 450). More recently, Alec Buchanan9 connected the principle of respect for persons with a respect for human dignity. He suggests correctly that “the link between dignity and vulnerability may be that we see people as needing a minimum level of wellbeing and freedom to act in pursuit of their goals” (Ref. 9, p 15). Buchanan specifically points to the importance of dignity in issues of competence: “Respecting dig- nity when people are not competent to make their own choices seems to require us to do things other than simply respect their decisions. It seems to in- clude, for instance, acting to ensure that their best interests are protected” (Ref. 9, p 13). Buchanan’s call echoes that of Ciccone and Clements decades earlier. When individuals with mental illness are commit- ted without treatment, there are two frequent out- comes. The first scenario is well characterized by Bis- was et al.1; they languish in a medical institution, “rotting with their rights on”10 or receiving treat- ment on an inconsistent, emergency basis that is traumatic and ineffective. Another common scenario is that they are discharged, despite remaining actively in crisis, and subsequently arrested for a (usually) minor criminal offense. These encounters with law enforcement can be deadly; up to 25 percent of fatal police shootings in the United States in 2015 and 2016 involved individuals who had mental illness.11 To appreciate the regularity of this diversion to the criminal justice system, one need only look as far as our jails and prisons, where the rate of serious mental illness far exceeds the rate in the general population.12,13 The failure to treat involuntarily hospitalized in- dividuals contributes to the disproportionate arrest and incarceration of the most vulnerable people in our society. People of color with mental illness are overrepresented in prisons.14 –16 This is a result of systemic racial bias; but racism is not the only mar- ginalizing force at work in the incarceration of people with mental illness. Incarcerated individuals are not only people of color who are disproportionately af- fected by serious mentally illness, they are also far more likely than the general population to be low-income, under-employed, under-housed, and under-educated.17 These intersecting, multiply-mar- ginalized identities lead to exponential stigmatiza- tion and disempowerment.18 Even when they are once again involuntarily insti- tutionalized this time in jail many of these vulnerable individuals will continue to be deprived of treatment for weeks to months until their attorneys finally ar- gue that they are incompetent: not to refuse treat- ment, but to stand trial. This well-known back door to treatment comes at an astronomically high cost, not just for the state, but for these most marginalized citizens who endure the repeated trauma of commit- ment, arrest, detention, and incarceration. Weissman and Candilis 455Volume 46, Number 4, 2018 When they finally receive treatment, most will be restored to competence and go on to stand trial.19 Whether justice is ultimately served in these cases is another matter. Many will be incarcerated for acts that they had no capacity to understand or control. Despite the lack of mens rea, they will not pursue an insanity defense because, in many jurisdictions, suc- cess would lead to longer confinement. Others, hav- ing experienced the deleterious effects of extended, untreated mental illness, will be found not compe- tent and not restorable. According to the landmark Jackson v. Indiana20 decision, they are subject to civil commitment proceedings. Those who are ultimately found not competent, not restorable, and not com- mittable will have their charges dropped. They will be swiftly discharged, often with little planning, no housing, and no leverage to continue outpatient treatment. While only a minority of defendants fall into this category, those who do are vastly overrepre- sented in the criminal justice system and in forensic psychiatric settings. With no justice and no treat- ment, the cycle of illness, arrest, and trauma is free to accelerate: the brakes are cut. Social justice is integral to the ethics mission of many professions; in medicine, it requires promoting the fair distribution of health care resources and working actively to eliminate discrimination in health care.21 In forensic psychiatry, ethics ap- proaches have evolved to integrate social context, multiple perspectives, and the narratives of vulnera- ble individuals. These more nuanced approaches all indicate that respect for individuals encompasses far more than just autonomy. But current adversarial procedures for involuntary treatment prioritize au- tonomy above all else, not just at the expense of hu- man dignity, but at the expense of social justice. There can be no justice of any kind when the most vulnerable citizens are deprived of appropriate health care and left to languish in medical, forensic, and correctional institutions. The gross discrepancies in life expectancy for persons with mental illness that may, as Biswas et al. suggest, result in part from treatment non-adherence, represent another social injustice.1 The goals of psychiatry and the law are often not the same; but a set of procedures that pits one against the other is no longer a solution. As Ciccone and Clements5 pointed out in the early days of Rogers, “Working in a setting that calls for a balanced tension can be disturbing to those who want a neat ethical system with ideal resolutions to problems, but this does not express the human social condition . . .” (Ref. 5, p 273). Across professions, judges, attorneys, and physicians take different approaches to achieve the common goal of protecting vulnerable people, but there may already be more common ground than the current procedures acknowledge. Attorneys and judges find themselves in a situa- tion similar to physicians when they recognize that a vulnerable person in their care needs treatment. As Schouten and Gutheil22 pointed out in their empir- ical assessment of the costs of the Rogers decision, the vast majority of petitions pursued to completion (99.1%) were granted by the courts. They hypothe- sized that “despite requirement for substituted judg- ment analysis, judges may exhibit some bias toward the more humanitarian (but less libertarian) tradi- tional best-interest analysis” (Ref. 22, p 1350). Sim- ilarly, they suggested that “some attorneys might yield to their own interpretation of fiduciary respon- sibility and present a pro forma or less-than-aggressive opposing argument” (Ref. 22, p 1350). Forensic psy- chiatry is not the only profession that benefits from an integrated ethics approach that protects vulnera- ble people. While the prospect of reform may be daunting, Elizabeth Wolgast23 reminds us why we must move forward: “The motive for tackling these gargantuan projects of reform is that the alternative is a further thinning in the meaning of responsibility on one side while nurturing institutions that defeat it on the other. A decision to change is acutely a moral deci- sion, and moral courage is needed to make it” (Ref. 23, p 157). Some forensic authors have already sug- gested that the strict, strong, or narrow professional role may well be the concept that allows for what Wolgast described as the “further thinning of indi- vidual responsibility” (Ref. 23, p 157). It is the broader view of professional role that allows redress of social inequities and their visitation on vulnerable persons. More recent commentators24 contend that “we will have to look carefully at the connection between professional role and institutional or societal needs if we are to develop the ‘moral courage’ to seek reform” (Ref. 24, p 109). The moral courage to re- form is at the core of social justice. References 1. Biswas J, Drogin EY, Gutheil TG: Is treatment delayed is treat- ment denied. J Am Acad Psychiatry Law 46:447– 453, 2018 Humane Forensic Practice Serves Social Justice 456 The Journal of the American Academy of Psychiatry and the Law 2. Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) 3. Griffith EEH (Editor): Ethics Challenges in Forensic Psychiatry and Psychology Practice. New York: Columbia University Press, 2018 4. Gutheil TG, Burstajn HJ, Brodsky A, et al: Decision Making in Psychiatry and the Law. Baltimore, MD: Williams & Wilkins, 1991 5. Ciccone JR, Clements CD: The ethical practice of forensic psy- chiatry: a view from the trenches. Bull Am Acad Psychiatry Law 23:263–77, 1994 6. Griffith EEH: Ethics in forensic psychiatry: a cultural response to Stone and Appelbaum. J Am Acad Psychiatry Law 26:171– 84, 1998 7. Wynia MK, Lathan SR, Kao AC, et al: Medical professionalism in society. N Engl J Med 341:1612– 6, 1999 8. Candilis PJ, Martinez R, Dording C: Principles and narrative in forensic psychiatry: toward a robust view of professional role. J Am Acad Psychiatry Law 29:167–73, 2001 9. Buchanan A: Respect for dignity and forensic psychiatry. Int’l J L & Psychiatry 41:12–17, 2015 10. Applebaum PS, Gutheil TG: “Rotting with their rights on”: con- stitutional theory and clinical reality in drug refusal by psychiatric patients. Bull Am Acad Psychiatry Law 7:308 –17, 1979 11. Frankham E: Mental illness affects police fatal shootings. Con- texts 17:70 –72, 2018 12. Steadman HJ, Osher FC, Robbins PC, et al: Prevalence of serious mental illness among jail inmates. Psychiatr Serv 60:761–5, 2009 13. James DJ, Glaze LE: Mental health problems of prison and jail inmates. Special Report, Bureau of Justice Statistics, 2006 14. Grekin PM, Jemelka R, Trupin EW: Racial differences in the criminalization of the mentally ill. Bull Am Acad Psychiatry Law 22:411–20, 1994 15. Hawthorne WB, Folsom DP, Sommerfeld DH, et al: Incarcera- tion among adults who are in the public mental health system: rates, risk factors, and short-term outcomes. Psychiatr Serv 63: 26 –32, 2012 16. Fisher WH, Roy-Bujnowski KM, Grudzinskas AJ Jr, et al: Pat- terns and prevalence of arrest in a statewide cohort of mental health care consumers. Psychiatr Serv 57:1623–28, 2006 17. Greenberg G, Rosenheck R: Jail incarceration, homelessness, and mental health: a national study. Psychiatr Serv 59:170 –7, 2008 18. Crenshaw K: Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist policies. U Chi Legal F 1:139 – 67, 1989 19. Mossman D: Predicting restorability of incompetent criminal de- fendants. J Am Acad Psychiatry Law 35:34 – 43, 2007 20. Jackson v. Indiana, 406 U.S. 715 (1972) 21. ABIM Foundation, ACP-ASIM Foundation, European Federa- tion of Internal Medicine: Medical professionalism in the new millennium: a physician charter. Ann Intern Med 136:243– 6, 2002 22. Schouten R, Gutheil TG: Aftermath of the Rogers decision: assess- ing the costs. Am J Psychiatry 147:1348 –52, 1990 23. Wolgast E: Ethics of an Artificial Person. Palo Alto, CA: Stanford University Press, 1992 24. Candilis PJ, Weinstock R, Martinez R: Forensic Ethics and the Expert Witness. New York: Springer Publishing Co., 2007 Weissman and Candilis 457Volume 46, Number 4, 2018 
work_edpcmuqvrzglng2u7fluk6riku	----	Microsoft Word - 00 Prelims 15(1).doc LAWYERS, JUSTICE AND THE STATE The Sliding Signifier of Law in Popular Culture Jason Bainbridge* This article examines how the concept of ‘law’ is culturally defined through a semiotic analysis of some of the ways in which law is constructed in popular culture. The article goes on to map the changing signifier of law across a number of film and television series, from the heroic lawyer to the embodiment of the ‘state’, the police officer and the government agent. In each case, analysis is provided of how the change in signifier alters the corresponding signified of ‘law’ — and the implications this change has for the pursuit of justice and fidelity to the rule of law. It is suggested that the popular cultural signifier of law has slid further and further away from the modern rule of law towards an increasingly transcendent and interventionist pursuit of justice, pushing the boundaries and promoting debate over what law can and should be. The policeman’s job is only easy in a police state. That’s the whole point, captain. Who is the boss, the cop or the law? — ‘Mike’ Vargas (Charlton Heston), Touch of Evil You’re only Spider-Man Dad, not God. —Charlie Deed (to her father, Judge John Deed), Everyone’s Child Introduction The term ‘law’ has many possible meanings, not just in legal institutions (where it can refer to positivist law, natural law, Indigenous law or police powers) but also in the wider culture. Law, it seems, is a malleable concept, its definition often depending upon the context in which it is found. Despite this, legal and cultural theorist Steve Redhead notes that conventionally ‘in jurisprudential and political theory’, law is taken as a given — ‘we assume that we know what it is and where to find it, and also what it does’.1 Redhead goes * School of Journalism, Media & Communications, University of Tasmania 1 Redhead (1995), p 10. Interestingly, this does not seem to be the case in practice. The adversary system is, in part, based on the idea that law can be interpreted differently. Similarly the composition of courts acknowledge that judges interpret 154 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 on to suggest that this is in fact ‘a powerful (legal) fiction which may be crucial to the exercise of political power and legal authority across many different fields, especially the “cultural”’.2 One possible starting point for understanding how law is culturally defined is through Swiss linguist Ferdinand de Saussure’s notion of semiotics,3 the study of communication. Adopting a structuralist approach to communication, de Saussure breaks down communication practices into a series of units called signs. A sign is anything that produces a meaning. Each sign is comprised of a physical component (the signifier) and a mental concept associated with that physical component (the signified). The relationship between the signifier and the signified is called signification, the process by which meaning is made.4 Thus, when we are confronted with a statue of justice, an image of a courtroom, or the figure of a lawyer or a policeman, we can understand them all as the physical signifiers of the mental signified — law. Saussurean semiotics is therefore useful because it provides a set of tools to describe how law is culturally constructed. It permits an analysis of culture without the imposition of value judgments (based on artistic or moral merit) and, unlike empirical sociology, can focus on individual texts rather than large- scale patterns.5 Furthermore, despite criticisms that it is too abstract and formalist in its approach, semiotics is committed to the social production of meaning. For Saussure, meaning is not contained in a single sign, but rather exists in the various sorts of relationships into which a sign enters.6 Of particular importance here would be the relationship between law and justice. Saussure therefore seems to be acknowledging that meaning is contextual. This is incredibly important in the analysis of law because, as noted above, the very meaning of law seems to depend on the context in which it is found. Therefore, as the physical signifier of law changes, so too does the mental concept of law that is signified. This article adopts a semiotic analysis of some of the ways in which law is constructed in popular culture. The article maps the changing signifier of law in popular culture from the heroic lawyer to the embodiment of the ‘state’, the police and the government agent. In each case, analysis is provided of how the change in signifier alters the corresponding signified of ‘law’ — and of the implications this change has for the pursuit of justice and fidelity to the rule of law. The examples are all drawn from film and television because, as Meyrowitz notes, film and television are the most prevalent popular cultural laws differently; some believe the constitution, for example, to be a living document while others turn to what the original drafters of the law intended. 2 Redhead (1995), p 10. 3 de Saussure (1983 [1916]). 4 De Saussure (1983); Hawkes (1977). 5 Fiske (1982); O’Sullivan et al (1994). 6 Culler (1976). BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 155 forms and therefore the most accessible to a mass audience.7 As Roland Barthes notes, ‘iconic images [be it Perry Mason or Harry Callaghan] distil complex details [of legal process] into blissful clarity’.8 This makes film and television ‘the main source of common knowledge about the law … [exerting] a powerful influence on ordinary people’s attitudes to, and expectations of, law and the legal system’9 because they are so much more accessible to the general public than law reports or even visiting courtrooms for themselves. Beyond simply representing the legal system, we can also read film and television as being in a dialogic relationship with these ideas, actively commenting upon these notions of law and justice. Cultural theorist Douglas Rushkoff,10 for example, has suggested that ‘popular cultural forums’ (like film and television) offer a ‘conceptual interface between the order of our laws and the chaos of our world’11 that makes them ‘the place for us to evaluate our rules and customs’.12 Film and television are therefore vitally important for making visible how law is constructed and, in the very process of representing law on screen, putting these ideas into the public sphere where they can be debated and contested.13 Following Bennett and Woollacott’s study,14 the examples are wide- ranging (from America, England and Australia) and there is some deliberate slippage between film and television. It is submitted that any other approach would be too limiting, abstracting texts from the wider culture and ‘the shifting orders of inter-textuality’15 which both elucidate their meaning and demonstrate how widespread these ideas of law truly are. Focusing on lawyers, policemen and government agents, this article aims to trace ways of thinking about law across related areas of popular culture by following ideas through intertexts with common concerns. The article then concludes with a consideration of why these ideas are important and what they can tell us about the changing nature of ‘legal authority’16 in the wider culture. 7 Meyrowitz (1985). 8 Barthes (1972), p 143. 9 Laster (2000), pp 10–11. It is important to note that, while I agree with Laster’s proposition that texts form ‘the main source of common knowledge about the law’, I downplay the idea of ‘influence’ with its implications of power over the viewer. 10 Rushkoff (1994). 11 Rushkoff (1994), p 51. 12 Rushkoff (1994), p 52. 13 For more on this idea of the public sphere. see McKee (2004). 14 Bennett and Woollacott (1987), pp 55–69. 15 Bennett and Woollacott (1987), p 59. 16 Redhead (1995), p 10. 156 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 Justice and Law A central consideration in analysing the way law is culturally constructed is the relationship between law and justice.17 However, as Barry notes: Despite more than 2000 years of political theorizing the notion of justice still has no settled meaning: it is the paradigm case of an essentially contested concept. It is not simply that there are fundamental disputes at the normative level … it is the fact that there is so little agreement as to what the concept stands for that causes serious problems.18 In his keynote speech at a Cardozo Law School symposium on deconstruction and law,19 Jacques Derrida claimed that, since justice transcends the legal system, it can never be wholly immanent. Following Plato,20 Derrida views justice as something ‘beyond’ the legal system, something quite apart from legal rights and remedies.21 Indeed, Derrida quotes Montaigne when he states: ‘Laws keep up their good standing not because they are just but because they are laws.’22 This allows for the possibility of justice being something that exceeds or even exists in opposition to the law.23 Justice can therefore be categorised in two ways: as procedural justice (relating to fairness and ensuring that the proper procedures have been followed); and as substantive justice (relating to getting the ‘right’ or ‘correct’ result, even at the expense of some procedural fairness). The classification reveals justice’s relationship with the law. Procedural justice is subordinate to the law. Here justice remains just another aspect of the law, with fairness and closure remaining the true aims of the legal system. In contrast, substantive justice is the aim of the law. Other aspects of the law (like fairness or closure) may necessarily be suspended or ignored to achieve it.24 Clearly, then, the pursuit of justice has a significant impact on the form that law may take. Indeed, Derrida famously pronounced that ‘deconstruction is justice’.25 Legal scholar Douglas Litowitz sees this as ‘laying the 17 Fiebelman (1985). 18 Barry (2000), p 135. 19 Derrida (1992). 20 Balkin (1994). 21 Derrida (1992), p 10. 22 Derrida (1992), p 12. 23 Derrida (1992), p 16. 24 This article is therefore adopting a pragmatic view of justice as the ‘correct’ or ‘fair’ result, predicated on the notion that something is ‘just’ when individuals get what is due to them — a definition which fits both these ideas of justice. In part, the article plays into the debates around moral relativism in accepting that justice does have a different meaning depending on where it is found — though in this case this is produced more by its relationship with law than its social or cultural context. 25 Derrida (1992), p 15. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 157 groundwork for … an almost dialectical struggle between law and justice’ 26 — or, more precisely, that ‘the call to do justice to the other is what spurs the deconstructive process into action, and hence the very process of deconstruction is a process of seeking justice’.27 Here, then, the act of seeking justice itself shapes the law, creating instability in the law and resulting in at least two different forms of law, what I have termed modern law and pre- modern law.28 Modern law refers to ‘black letter law’, based around the idea of the Rule of Law. I’ve termed this concept ‘modern law’ because the Rule of Law is itself at the very heart of modernity, both as an important part of the public sphere and as a way of ensuring the continuing maintenance of ‘order’ and ‘certainty’ — two of the central concerns of modernity.29 Modernity’s belief in progress through rationalism resulted in a corresponding rise in the presence of the courtroom and the idea of empirical argumentation as a locus of justice, leading Max Weber30 to conclude that law itself legitimated the modern state.31 The Rule of Law is defined by contrast with the ‘rules of man’ — arbitrary, ad hoc decisions. Its most basic requirements are consistency, through rules fixed in advance, and public knowledge and fairness, through neutral application.32 The modern ideal of law is therefore based around rationality. It aims to provide due process, ensuring fairness and equality. To a certain extent, it also seeks to provide reassurance that the legal system is the best forum for dealing with criminal and civil issues as it ensures objectivity and impartiality. In modern law, then, justice remains procedural in that it is 26 Litowitz (1997), p 97. 27 Litowitz (1997), p 102. 28 This is based in part on Lyotard’s (1985) notion of a ‘multiplicity of justices, each one of them defined in relation to the rules specific to each [language] game’: (1985), p 100, emphasis added. Here I’m suggesting that the intersection of justice and law actually results in a ‘multiplicity of laws’, each based on ‘the rules specific to each game’ — that is, the place of justice in the law. We could include postmodern law here as well, but for reasons of space this article remains focused on pre-modern and modern law. 29 Sarup (1996), p 50, citing Zygmunt Bauman. 30 Max Weber (1991). 31 American legal historian Jerold Auerback (1983) concurs, stating that ‘no longer is it possible to reflect seriously about American culture without accounting for the centrality of law in American history and society’ (p 115). It is certainly valid that Auerback’s argument regarding the centrality of law in modern society also applies, at the very least, to England and Australia as well. We can break down the relationship between law and the modern state further: civil litigation encourages an aggressive form of individualism; criminal law legitimates military power (both foreign and domestic); statute law governs surveillance, both directly and indirectly (through regulation), providing transparency and equality to all citizens; test cases encourage research and development (progress); and the legal system, as a whole, enshrines equality through access and fair representation (at least in principle). 32 Fallon (1997). 158 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 just another aspect of law, to be considered and balanced against these other requirements. In contrast, a pre-modern ideal of law privileges justice over equality and emotion over rationality, with emotion often viewed as a conduit to the ‘truth’. This ideal of law is ‘pre-modern’ in the sense that it has a connection to the ‘sacred’, the (pre-modern) forms of church law or divine law in ancient societies. Here, kings or clergy were said to have a direct conduit to the will of the divine and therefore came to personify the law themselves.33 In pre-modern law, justice is clearly substantive in that it is the aim of law, overriding concerns of due process or equality. The Lawyer As an officer of the court, and hence a representative of the legal system, the lawyer is one of the most common signifiers of law. In film and television, the lawyer is often presented as the heroic protagonist of the legal drama, the visual antecedent of the legal thriller, because the drama typically comes out of the relationship between the lawyer and the legal system of which they are a part, rather than from the relationship between the lawyer and the criminal.34 A number of Perry Mason (1957–66) episodes bear this out, where Mason has to work against the legal system to prove his client’s innocence. Similarly, in To Kill a Mockingbird (1962), Atticus Finch’s struggle to exonerate Tom Robinson is framed as a struggle by a moral lawyer against a flawed and bigoted justice system. In some instances, legal dramas suggest that professionalism, working within the constraints of the system, can itself be heroic.35 When DAs Richard Bey (Jason Kravits) and Helen Gamble (Lara Flynn Boyle) go to lunch after losing a case on the television series The Practice (1997–2004), Bey reassures Gamble that they are the heroes because they are trying to uphold justice and put away the criminals (an argument often replicated by the DAs in Law & Order (1990– )). The Practice’s defence lawyer Eugene Young (Steve Harris) reminds the lawyers at his firm that their courage to represent unpopular clients makes them heroic — an argument that echoes the sentiments of defence lawyers in films from Compulsion (1959) to In the Name of the Father (1993). Similarly, The Verdict’s (1982) Frank Galvin (Paul Newman) is presented as heroic because he learns how to overcome his alcoholism and depression, work hard and win a case. Here, Galvin’s move toward professionalism is presented as heroic. The lawyers in each of these examples clearly signify the modern ideal of law: their professionalism maintains faith in the legal system; the fact they are heroic simply by discharging their duty, or attempting to discharge their duty, reinforces the need for due process; and the fact that resolution occurs in the courtroom underscores the importance of rational argumentation. But legal 33 See Feldman (2000). 34 Bainbridge (2004). 35 Menkel-Meadow (2001), p 1319. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 159 dramas do not form an homogenised discursive whole, and more often than not quite a different form of law is signified. In May 2003, the American Film Institute nominated Atticus Finch (Gregory Peck), the indomitable Southern lawyer of To Kill a Mockingbird, as the greatest hero in the history of motion pictures.36 The main reason given for Finch’s nomination was his role in fighting racial prejudice through his defence of the alleged rapist Tom Robinson. At first glance, Atticus Finch’s victory in To Kill a Mockingbird seems to be an endorsement of the modern ideal of law, signified by a lawyer simply discharging their duty; however, as Simon notes,37 Finch concludes the film by engaging in an obstruction of justice. Sheriff Heck Tate and Finch collude to say Bob Ewell’s death was an accident rather than the act of Boo Radley, who was defending Finch’s children from Ewell’s attack. To be fair, Finch does argue against the sheriff, saying that Radley should go to trial as the killing is justified, but he ultimately concedes Tate’s point that the legal system that has just failed Tom Robinson will most likely fail Boo Radley too.38 Here, then, Finch is clearly not operating as an officer of the court. Justice relies on what Simon terms Finch’s moral pluck — ‘a combination of transgression and resourcefulness in the vindication of justice’.39 In To Kill a Mockingbird, then, justice is found to lie outside and occasionally (as here) in opposition to the legal system. Similarly at other points in the film, Finch is forced to act outside his role as Robinson’s lawyer, standing guard over his gaol cell to protect him from a lynching and engaging in a good amount of detective work to ‘prove’ (though not to the jury’s satisfaction) that Robinson is incapable of the rape ascribed to him. Finch’s nomination as ‘hero’ relies in equal measure on his abilities inside the courtroom and, at certain moments, acting outside or even in opposition to his role as lawyer. Finch therefore incorporates aspects of both the ‘modern’ and ‘pre-modern’ ideals of law — a mixture of rationality and emotion where due process is frequently overridden by the pursuit of substantive justice. Simon pursues this idea of moral pluck through the literary works of John Grisham and the television series LA Law (1986–94)40 — and it is an idea that can be applied to the analysis of what may be thought of as other ‘heroic’ lawyers too, most notably Perry Mason. Originating in Erle Stanley Gardner’s stories in a variety of pulps (including Black Mask magazine) in 1933, Mason always straddled a variety of genres as his tales were part legal procedural and part pulp thriller.41 Perry Mason’s transition to radio (1943–55) marked the 36 Age, 14 June 2003. 37 Simon (2001). 38 The original scene occurs in Harper Lee’s To Kill a Mockingbird (1960) at 286-91. For another discussion of the scene as a justified ‘cover up’, see Atkinson (1999). 39 Simon (2001), p 422. 40 Simon (2001). 41 Mason’s transition from pulp to courtroom procedural is demonstrable in a comparison of The Case of the Velvet Claws (1933), which takes place entirely outside the courtroom, and The Case of the Sulky Girl (1934), which features a 160 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 addition of another genre, soap opera, that was later abandoned for the long- running television series (1957–66) featuring Raymond Burr, from which the character is probably best remembered.42 Some critics have been quick to dismiss Perry Mason’s importance as a legal drama because of the inordinate amount of time Mason spends on detective-work,43 and the fact that he loses only once (and then only because the defendant refuses to reveal information that would save her). I prefer to think of Perry Mason as one of the most subversive of all law shows because of its implicit idea that a lawyer discharging their duty is not enough to be heroic. As with Atticus Finch, to be heroic necessarily requires a combination of legal and extra-legal action.44 This idea of combination, of justice requiring a combination of the legal and the extra-legal, is important. Mason’s victories depend on both his legwork (usually through private investigator Paul Drake (William Hopper)) outside the courtroom and his devastating cross-examinations within. Indeed, the trademark courtroom confessions which conclude almost every episode of the television series are only used irregularly in the novels. These confessions seem indicative of a desire to reassert the idea that justice (as represented by the confession of guilt) is ultimately found in the courtroom, even if such a finding is reached through a combination of legal and extra-legal means. So, while substantive justice is clearly Perry Mason’s aim, finding the ‘correct’ result in the courtroom also provides some measure of reassurance in the modern legal system as the appropriate forum. Collins and Javna45 see Perry Mason’s structure — of a crime, an innocent accused, Mason and company engaging in detective work to find the truth and a concluding courtroom showdown — as moving ‘beyond formula into ritual’. At its heart is this notion that discharging one’s duty as a defence attorney (defending one’s client to the best of one’s ability) is not enough to be heroic. Rather, it is necessary to go one step further and uncover who is actually guilty. Furthermore, any amount of rule-breaking (and occasional law- breaking) is presented as justified in light of Mason’s end result; in The Case lengthy courtroom interrogation. Mason carried on for 82 novels, a few short stories and a novella before crossing over to films in 1934. 42 The soap opera elements were spun off into another television series, The Edge of Night (1956), which utilised the same radio cast with new character names. The Perry Mason television series returned in 1973–74 with a different cast as The New Adventures of Perry Mason. Finally, there was a series of telemovies, The Perry Mason Mysteries (1985–93), marking Raymond Burr’s return to the role which ran until (just after) his death. 43 For example, Steven Bochco, creator of LA Law, describes Perry Mason as a mystery series; Collins and Javna (1988) classify it as a private eye series. 44 This was highlighted in the Perry Mason newspaper strip (1950–54), where Mason was continually reminding his clients ‘I’m a lawyer … not a policeman’ (The Case of the Innocent Thief) or ‘you need a detective, not a lawyer’ (The Case of the Nervous Horse) — and, of course, in both these cases Mason ends up lending a hand (Mason, 1989). 45 Collins and Javna (1988), p 29 BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 161 of the Curious Bride, for example, Mason ‘bought an apartment building so he could legally change the locks and doorbells and screw up DA (Hamilton) Burger’s evidence’.46 This is a ritual that is replicated in later series like America’s Matlock (1986–95), Australia’s short-lived Case for the Defence (1974) and, again to a lesser extent, the UK series Rumpole of the Bailey (1978–92) (in Rumpole’s occasional interest in finding who really committed the crime). In some ways, The Practice can also be classified as following this trend. Sometimes the defence lawyers do track down the real culprit or, in a neat inverse of the Perry Mason tactic of breaking down the guilty party on the stand, accuse someone else of the crime. The lawyers on The Practice, Thomas suggests,47 are therefore heroic ‘in the sense of going beyond their typical call of duty’.48 More recently, the British legal drama Judge John Deed (2004– ) presents a heroic judge in much the same mould as Finch and Mason. The promotional literature describes him as ‘contemptuous of the rules created by an archaic and out of touch bureaucracy, his passion for justice and maverick approach set him at odds with the Lord Chancellor’s department’.49 Deed (Martin Shaw) is frequently seen to ‘transgress’ the laws of his office by giving the accused another chance to speak before the jury, fraternising with the defence barrister and even conducting private searches on judges he considers may be corrupt. While all of these men remain officers of the court, frequently they must act outside the scope of their role as a lawyer — and sometimes in direct contravention of it — to achieve justice. This is a clear endorsement of the pre- modern ideal of law, where substantive justice becomes the primary motivator, even where other legal rights and duties must be suspended to achieve it. As such, these lawyers in the Finch-Mason-Deed mould represent the first slide in the signification of law away from the modern rule of law and towards a more pre-modern conception. The Police Procedural The distinction between the modern and pre-modern forms of law is well made in Orson Welles’ classic film Touch of Evil (1958, reconstructed 1998). The film depicts the struggle between ‘modern’ chairman of the Pan American Narcotics Commission, Ramon Miguel ‘Mike’ Vargas (Charlton Heston), and ‘pre-modern’ corrupt policeman Hank Quinlan (Orson Welles) in the Mexican border town of Los Robles (itself a metaphor for the larger issue of the treatment of Mexicans by American law enforcement). Motivated by the unsolved murder of his wife, described as ‘the last killer that ever got out of my hands’, Quinlan is corrupt insofar as he plants evidence on suspects he 46 (Collins and Javna (1988), p 30. 47 Thomas (2001). 48 Thomas (2001), p 1511. This means The Practice is advancing two ways for lawyers to be heroic — one is by discharging their duty, the other is by going beyond their duty. 49 Channel Seven website. 162 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 considers guilty of a crime. In one of his early encounters with Vargas, Quinlan juxtaposes the policeman’s role quite clearly against the lawyer’s: Adair: Hank’s a born lawyer, you know. Quinlan: Lawyer! I’m no lawyer. All a lawyer cares about is the law! Vargas: Captain! You are a policeman, aren’t you? Quinlan: Mmm … Aren’t you? You don’t seem to be very fond of the job. Vargas: There are plenty of soldiers who don’t like war. Quinlan: Hmmm … Vargas: It’s a dirty job enforcing the law, but it’s what we’re supposed to be doing, isn’t it? Quinlan: I don’t know about you. But when a murderer’s loose, I’m supposed to catch him. The way Quinlan places the capture of the suspect above due process clearly marks him as a signifier of the pre-modern ideal of law. Indeed, Quinlan’s frequent comments that ‘we’ll get evidence’ point to the way he fabricates evidence as a way of proving the guilt of the people he suspects. As far as he’s concerned, he never framed anybody but rather was ‘aiding justice’ — that is, getting the ‘correct’ result. The point is well made when Vargas tries to expose Quinlan’s corruption, culminating in the quotation that heads this article: Quinlan: Our friend Vargas has some very special ideas about police procedure. He seems to think it don’t matter whether a killer is hanged or not, as long as we obey the fine print … Vargas: Well, no, captain … Quinlan: … in the rule books. Vargas: … I don’t think a policeman should work like a dog-catcher … Quinlan: No? Vargas: … putting criminals behind bars. No! In any free country … Quinlan: Aw … Vargas: … a policeman is supposed to enforce the law, and the law protects the guilty as well as the innocent. Quinlan: Our job is tough enough. Vargas: It’s supposed to be. It has to be tough. The policeman’s job is only easy in a police state. That’s the whole point, captain. Who is the boss, the cop or the law? For the purposes of this article, Quinlan’s corruption is less important than his assertion that the police generally signify a pre-modern ideal of law.50 50 While this paper accepts Barthes’ and Foucault’s notion of ‘the death of the author’, this also seems in keeping with Welles’ original intention. There is evidence that Welles’ work in Touch of Evil was inspired by the beating and blinding of black naval veteran Isaac Woodward Jr by police in South Carolina. On the Orson Welles Sketchbook (BBC-TV, 7 May 1955), Welles comments: ‘I BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 163 Indeed, as if to prove the point, the very modern Vargas himself has moved towards a pre-modern ideal of law by the end of the film when he is reduced to illegally taping Quinlan to prove his guilt. In police procedurals, films and series which focus on the workings of police, the signifier of law presented is either ‘the police force’51 or ‘the individual policeman’.52 These signifiers represent another slide away from the modern ideal of law where rational inquiry is frequently abandoned in favour of instinct or emotion, where individual rights are suspended for the good of the community and crime’s ‘causes and definitions [become] self-evident, that criminals are easily recognisable and the punishments that we should give them, obvious’.53 Ironically then, despite the police and the state being profoundly modern institutions, the police are signifiers of a pre-modern ideal of law. The classic example here is the film Dirty Harry (1971). The title foregrounds, even celebrates, Harry Callahan’s (Clint Eastwood) ‘dirtiness’, his lack of respect for the legal system in favour of doing whatever is deemed necessary to control crime (here, bringing the sniper Scorpio (Andrew Robinson) to justice). This is exemplified in a scene Chase describes where Harry clashes with DA William T Rothko over the abuse of a suspect’s rights.54 Ultimately it is Harry who delivers his own transcendent justice with the (now immortal) quip: ‘Do I feel lucky? Well, do you? Punk?’ As Scorpio reaches for his gun, Harry blows him away. His final rejection of the modern ideal of law is revealed at the film’s end when Harry skips his police badge across the water. Harry becomes a signifier of pre-modern law through his desire to protect community rather than individual (Scorpio’s) rights, through his ‘direct line’ to the truth (appointing himself Scorpio’s executioner) and through his often complete lack of accountability (his rejection of modern law at the movie’s conclusion). Of course, police procedurals are not always uncritical of police as exemplars of the law. Some foreground ‘the ideological and coercive work of the police’55 as evident in series featuring ruthless or just plain corrupt cops like The Sweeney (1975–78), The Shield (2002) and recent seasons of The Bill. Similarly, there are many hybrid forms of the police procedural, creating an ever-changing signifier of ‘the law’ applicable to series as diverse as Cagney am willing to admit that the policeman has a difficult job, a very hard job. But it’s the essence of our society that a policeman’s job should be hard. He’s there to protect the free citizen, not to chase criminals — that’s an incidental part of his job.’ (quoted in Comito 1985), which seems to elucidate the difference between pre-modern and modern law, if not using that exact terminology. 51 As in the UK The Bill (1984– ), Australia’s Blue Heelers (1994– ) or the US Hill Street Blues (1981–87). 52 Be it America’s Columbo (1971–77), Australia’s Boney (1972–73) or England’s Inspector Morse (1987–2000). 53 Grant (1992), p 58. 54 Chase (2002), pp 73–74. 55 Clarke (1986, 1992). 164 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 and Lacey (1982–88), Cracker (1993– ) and Inspector Morse.56 However, common to all of these series is a narrative Toby Miller identifies as belonging to the detective genre but which is just as applicable to the police procedural: The villain and the detective depend on each other through an overarching third term: the law and its embodiment in the state, which one must elude and the other convince that justice be meted out.57 It is this conception of ‘the state’ that is important here — a ‘state’ that, despite its legal implications,58 for the most part is seen to exist without the presence of lawyers. This disenchantment with the legal system is best demonstrated by what is not shown. Most police procedurals are discrete. They end with the capture of the criminal, the implication being that it is here that justice occurs, sparing us the intricacies of the legal system, its failures and its delays. As Friedman notes,59 popular culture often displays an ‘impatience with technicality and procedure’ through its depiction of technicalities as ‘obstructions to justice’. The interrogation room has come to replace the courtroom on police procedurals as the locus of ‘truth’ and ‘justice’ in series like NYPD Blue (1993–2005), Homicide: Life on the Street (1993–99) and more recently Law & Order: Criminal Intent (2001– ). NYPD Blue’s Andy Sipowicz (Dennis Franz) regularly abuses and slaps suspects. Greg Medavoy (Gordon Clapp) strikes a suspect with a telephone book. Homicide’s Frank Pembleton (Andre Braugher) engages suspects in complex mind games, whittling away at them until they crack. Criminal Intent’s Robert Goran (Vincent D’Onofrio) does the same. As Sterne notes,60 all do this without reference to a code of conduct (like the Amnesty International 1996 Report) and always without the presence of a lawyer. Most often, suspects are tricked into not calling their lawyers in the belief that it will ‘be easier’ for them if they don’t. Here the policeman becomes the transcendental justice figure, as aptly demonstrated in an episode of Law & Order: Criminal Intent.61 During the police room interrogation, the terrorist Ethan says: ‘I was sent by God.’ To which Detective Eames (Kathryn Zerbe) (Goran’s partner) replies: ‘So were we.’ The production of a confession replaces the verdict as the moment of catharsis in these dramas, providing both resolution and a sense of justice, with detectives often rewarding themselves afterwards for getting ‘results’. In the police procedural, then, it is the arrest of the suspect that provides narrative 56 Creeber (2001), pp 19–23. 57 Creeber (2001), p 18, emphasis added. 58 Following on from Weber’s (1992) idea that law legitimated the modern state, by ‘state’ I refer to a legal association, a ‘juridicially organized nation, or a nation organized for action under legal rules’ (Baker 1951). Baker therefore sees the state as existing for law: ‘it exists in and through law: we may even say it exists as law’. 59 Friedman (2000), p 556. 60 Sterne (2000). 61 18 March 2003. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 165 closure, bypassing the legal system (and its attendant requirements) with a ‘Book ’em Dano’ (as Jack Lord provides in Hawaii Five-O (1968–80) and a cut to the end credits. The Lawyer and the Policeman When lawyer characters are present, they are often treated with at best a healthy distrust and scepticism, and at worst outright hostility. Lawyers are portrayed as impediments to the police investigation; the rights of the accused are seen to stand in the way of the pursuit of justice. But, as Toby Miller notes, there is one way in which the lawyer can be included in the police procedural: the police need togetherness to survive rather than utility-maximising individualism. This affective bond allows protagonists to maintain a sense of self as they are sent into situations that frequently bear no relationship to their own existence.62 Therefore, the only way lawyer characters are given any sort of respect or place in these series is if they become a part of the police community. In NYPD Blue, for example, ADA Sylvia Costas (Sharon Lawrence) is only really accepted as part of the community when she commences a relationship with Detective Sipowicz (Dennis Franz). After this, she is seen in more domestic situations. Similarly on Hill Street Blues, Public Defender Joyce Davenport (Veronica Hammel) is only accepted as a part of the system through her relationship with Captain Frank Furillo (Daniel J Travanti). Hill Street Blues consistently demonstrated Davenport’s acceptance into the community in the way most episodes ended with Furillo and Davenport in bed, rather than through her work in court (which remained rarely seen).63 An interesting example occurs in the Australian series Stingers Undercover (2000–04), which introduced a lawyer character, Ingrid Burton (Rebecca Gibney), in its 2002–03 season to capitalise on the interest in the American legal series then airing on Australian television.64 Stingers Undercover revolves around the activities of a police undercover unit, the principal member of which is Peter Church (Peter Phelps). At the end of the 2001 season, Church’s team-mate Oscar Stone is killed by Kevin Conrad. The 2002 season opens with the episode Collateral Damage, depicting Conrad’s trial and the introduction of Ingrid Burton as Kevin Conrad’s attorney.65 62 Quoted in Creeber (2001), p 18. 63 Indeed, during the fifth season (1984), Davenport briefly switched sides, becoming an ADA and prosecuting cases (before returning to the Public Defenders Office at season’ s end). 64 This was part of a trend that included the launch of Channel 7’s legal comedy Marshall Law and ABC’s legal/medical drama MDA 65 Burton is also constructed as very sexual. She’s tall, her gown hangs open to enable point-of-view shots of her legs and she wears her wig well back on her head to make the most of her long, blonde hair. By way of explanation, prosecutor Dawson Lynch (Christopher Gabaldi) tells Church: ‘Burton is a very astute lawyer … she’s very persuasive with the jury.’ 166 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 Burton is cast very much at odds with the undercover unit. She represents the man who killed their partner and seems to take pleasure in her job. Here and in subsequent appearances, Burton will not only represent someone whom the undercover unit is investigating but will actively encourage them to sue the unit for some perceived wrongdoing.66 Burton’s first appearance also features the first of many exchanges with Church: Church: Ever wonder if it’s worth it — defending these low lifes? Burton: Don’t take it personally. It was a court appointment. Church: So that’s your excuse? Burton: I do my job, Peter. The difference is I do it within the law. Burton falls back on this line ‘It’s my job’ to defend her role in the legal system time and again. In many ways, it follows the approach of Eugene Young (The Practice), Compulsion and In the Name of the Father (as outlined above), where being heroic is simply discharging one’s duties. ‘I’m a lawyer, it’s what I do’ she says in Breakdown and again, ‘It’s my job’ in Partners in Crime, but it is in Scratch me Lucky, as she begins a sexual relationship with Peter following a chance encounter in a bar, that she sets out to explain her position: Burton: It’s my job. Church: Defending slime? Burton: Everyone’s entitled to the best possible defence. It’s the only way we can protect the innocent. Church: But you know [your client’s] guilty don’t you? Burton: Guilt’s for the jury to determine. I’m just an officer of the court. Burton is therefore a signifier of the modern ideal of law. She is heroic simply by virtue of doing her work, discharging her duty and ensuring due process is followed.67 This particular episode ends with Church and Burton in bed together. Although some of their adversarial nature remains visible in the fact that Church is secretly taping confessions Burton makes (which could lead to perjury charges in the future), it is the first indication that Burton’s role may change. Like Sylvia Costas and Joyce Davenport, she starts being seen in social settings (The Whole Truth) and visits Church at his headquarters 66 As in the episode Separation Anxiety, where Burton encourages Miles Vanderhoeven (Tony Richards) to sue both the unit and Angie Piper (severally) for negligence. 67 Burton also accepts that this sets her apart from Church. In the episode Payback, she tells Church: ‘You think we’re on opposite sides don’t you? Professionally, docially, morally’. This neatly delineates the differences between the modern and pre-modern ideals of law they signify. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 167 (Payback). While there is some lingering confusion over their professional and private lives, Burton is more readily accepted into the Stingers team, first to assist the team in catching the escaped Conrad (The Whole Truth) and then helping Angie Piper when Church disappears (Breakdown). Also noticeable is that Burton’s ‘I’m a lawyer’ routine is starting to break down, as is tellingly revealed in Partners in Crime, where the following exchange occurs: Church: Well, I’m a cop, you’re a lawyer. Burton: Doesn’t that bother you? That we can’t be friends with each other? … If you had any evidence you’d lay charges [against Burton’s client Stig Endquist (Tim Robertson)]. Church: And you’d defend him. Burton: It’s my job. Something that you’re making really bloody difficult for me to do. Here she is expressing some doubt over her position. Her signification of the modern ideal of law has been problematised. Indeed, her position has shifted so much over the course of the season that by the last episode she is actively helping Church in his operation against Endquist, a position that leaves her own life in jeopardy in the season cliffhanger. Burton has become part of the undercover community. Through a sexual relationship, she has been accepted into that community and then subsequently proves herself as part of that community. She has become a sliding signifier of law, moving almost completely away from the modern ideal she first signified toward a pre- modern one. Endquist’s individual rights, to representation, to due process, are suspended for the communal good. Following her rescue at the start of the next season and the end of her affair with Church, Burton proves her ‘pre-modernity’ by performing a ‘sting’ herself. Burton empties a number of Endquist’s bank accounts, effectively exposing his schemes and bankrupting him (thus bringing him to justice) and also supporting herself as she goes into hiding. Justice is achieved, Endquist is arrested and Church grins as Burton (literally) flies off into the sunset; Burton has become a ‘stinger’ too. She now embodies a pre-modern ideal of law, completely removed from the modern ideal she once signified. Burton, Costas and Davenport are all indicative of a trend in police procedurals: that, to be accepted into the police community, the lawyer must necessarily sacrifice part of their modern role as lawyer and embrace a more ‘pre-modern’ role.68 When this does not happen, the lawyer remains a fringe figure, largely obstructionist and often reduced to a caricature or stereotype, symptomatic of the way some elements of modernity — like fairness and equality — are consistently sidelined in police procedurals. 68 It is notable, of course, that all of these examples are female and their acceptance begins with a sexual relationship with the male police characters. 168 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 Government Thrillers While the lawyer and the policeman are still perhaps the most common signifiers of law, increasingly, in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon, a new signifier of law has been appearing with increasing regularity — the government agent. The government agent features in the American series Alias (2001– ), Without a Trace (2002– ) and 24 (2001– ) and the English series Spooks (2002– )69 and, perhaps most famously, the James Bond, Mission Impossible and Jason Bourne film franchises.70 The government agent is a signifier of law that slides still further away from the modern ideal of law and towards a purely pre-modern one because not only is justice the perceived aim, it is pursued with few limitations. The threat of death (as classically represented by James Bond’s licence to kill) or torture (as evidenced by Jack Bauer’s actions in 24 or Michael Vaughn’s actions in Alias) are both presented as justifiable ways of achieving substantive justice. Once again, we can see that this is a significant shift if we compare, for example, the interrogation scenes from the Law & Order: SVU Season 6 episode Rage to the interrogation scenes in 24. In Law & Order: SVU, Detective Elliot Stabler (Christopher Meloni) is seen setting up the interrogation room for Gordon Rickett (Matthew Modine), a child rapist he tried to convict 14 years earlier and who he now suspects has murdered a young girl. Stabler ensures the lights flicker, Rickett’s chair is uneven and has the heat turned up. He does everything to make Rickett as uncomfortable as possible. He even has food and drink provided in the hope that it will force Rickett to use the toilet. In contrast, 24 features Counter Terrorism Unit (CTU) agent Jack Bauer (Kiefer Sutherland) shooting suspects in knee caps, squeezing bullet wounds and making it appear he has executed someone — all presented as legitimate means of obtaining information from a suspect. The signifier of law has therefore shifted from the intimidation and threats (of the police procedural) to actual physical torture. As television writer Clive Thompson notes: this crop of smart thrillers … began twisting the thumbscrews right after 9/11, three years before Guantanamo and Abu Ghraib [the facilities where mistreatment of terrorist detainees occurred] hit the headlines. Alias launched nineteen days after the World Trade Center attacks … The shows are unusually good at capturing the dark sensuality of 69 Spooks is known as MI-5 in America. 70 At the time of writing, there are 26 Bond films (the latest is 2006’s Casino Royale), three Mission Impossible films and two Jason Bourne films — The Bourne Identity (2002) and The Bourne Supremacy (2004). It should also be noted that the government agent/spy genre is also prevalent in children’s entertainment, including the film series Spy Kids, Agent Cody Banks and Alex Rider and the television series James Bond Jr and Kim Possible. This is the only signifier covered by this paper that also features in a children’s format. While they are more restrained than their adult counterparts, there is still little respect for the modern ideal of law in these children’s series. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 169 torture: the Cartesian horror of being trapped in a vulnerable body, the sub-dom relationship of the torturer and his victim.71 Most interesting for Thompson is that often ‘it’s the good guys in the tormentor’s seat’72 and they are celebrated as heroic in their endeavours to garner the truth from their suspects. Jack Bauer, for example, is referred to as heroic a number of times in 24, no more so than in the final episode of Season 4 where the head of CTU, defending Bauer’s decision to raid a Chinese consulate for information (killing a consular official in the process) says: ‘We’d be burying a million Americans now if it weren’t for Jack Bauer. He’s a hero.’ Here we have a clear statement of the pre-modern ideal of law; the ‘right’ result, the ‘correct’ result, has occurred — and justifies whatever means were used. Justice and preventing terrorism are conflated into one and the same thing. In these government thrillers, as in the police procedural, lawyers are again sidelined and seen as an impediment to the delivery of substantive justice. In 24, for example, a terrorist suspect calls ‘Amnesty Global’ to get a lawyer and ensure due process applies. Here the point is well made: terrorists are about to get their hands on a nuclear warhead, millions of American lives are in the balance and Bauer believes that only this suspect can help them. He needs to make him talk, by any means necessary. The lawyer therefore becomes an impediment to justice. To drive the point home, Bauer even asks his superiors: ‘Why won’t he let us do our jobs?’ Unlike the police procedural, there is no provision for the lawyer to join the community here. But while Bauer is diegetically celebrated as a hero, most of the last episode of 24’s fourth season is given over to exploring the repercussions of the government’s meddling. The Chinese demand Bauer be turned over to them, President Logan doesn’t authorise Bauer’s murder but certainly won’t do anything to stop it, and the national hero becomes a problem that needs to be disposed of. What is at issue here is best expressed by (former) President David Palmer (Dennis Haysbert), who will not allow Bauer to be turned over to the Chinese because ‘they’ll put you on trial to propagandise about American interference’. It is this ‘making visible’ that the government fears, and to some extent it is this ‘making visible’ (of the liminality of law, of the ways in which suspects are intimidated and questioned) that forms the basis of the intellectual work these series are engaged in. As Thompson notes,73 ‘the fact that such shows cater to our creepier revenge fantasies isn’t reason to condemn them; for all their flash and gore, they can also be a step toward a moral debate’ — this is an idea to which I return below. The presentation of torture as policy in series like 24 demonstrates how far the signifier of law has slid, as crime fighters (arguably the rubric under which lawyers, police and government agents all fall) become ever more brutal in their efforts to achieve justice and the state suffers the repercussions of its endless meddling. 71 Thompson (2005). 72 Thompson (2005). 73 Thompson (2005). 170 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 The increasing prevalence of ‘the state’ as the signifier of law in popular culture parallels the increasing intervention of ‘the state’ in the real world, particularly post-September 11 and particularly in the area of proactive law. Here, there has been a notable expansion and concentration of power in the executive74 and a move towards interventionist justice. In the United States, the Patriot Act’s75 expansion of the investigative powers of the Federal Bureau of Investigation (FBI) has led to accusations of racial profiling and discrimination that are defended as proactive measures. The ongoing ‘war on terror’ is also couched in terms of spreading freedom in the world and therefore ‘an urgent requirement of our nation’s security’,76 thereby demanding intervention. In Australia, proactive anti-terrorist legislation aims to broaden the definition of a terrorist act to enable prosecution of people who are plotting an attack (ABC News Online). Similarly interventionist ASIO Legislation Amendment Act 2006 amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004 would enable the Australian Security Intelligence Office (ASIO) to commandeer information from journalists.77 In all of these Acts, we see a continuing shift away from the modern ideal of law with its emphasis on due process, fairness and a right to trial toward a pre-modern ideal of law where individual rights are suspended and justice is prioritised. Part of the problem in legislating against terrorism seems to be in defining the term ‘terrorism’ itself. There remains no accepted definition of terrorism at international law. More particularly, the problem arises in distinguishing acts of terrorism from an armed struggle waged by national liberation movements. The United States, for example, defined the September 11 attacks as acts of war rather than crimes outside a war context which led to terrorism being treated as sui generis (of its own kind) rather than as a crime under existing modern law. This encourages the use of the metaphor ‘war on terror’, with the word ‘war’ itself justifying the use of ‘emergency powers’, the ‘suspension’ of certain liberties and the demarcation of a clear beginning (an act of war like the September 11 attacks), rather than politically contextualising the attacks or responding through the modern legal system — as a number of European countries did. In the United States, there is therefore a shift towards a pre- modern ideal of law which requires new methods to achieve increasingly nebulous ideas of substantive justice. Indeed, this shift toward the pre-modern is articulated by a number of sources. For example, the Justice Department and the FBI blamed their intelligence failures regarding the September 11 attacks on their over-reliance 74 Pillar (2005) notes that this is very much a product of the times. Post Watergate and the Pike and Church committees there had been a curtailing or controlling of executive power rather than an expansion (6). 75 Full Citation: The `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’ (HR 3162). 76 (Bush 2005), 77 Fifth Estate (2005). BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 171 on a criminal justice (modern) approach to counter-terrorism.78 The ‘pre- modernity’ of the state’s approach is underscored by the frequent restatement of the US administration’s aim to ‘bring terrorists to justice for their crimes’,79 which deliberately highlights ‘justice’ rather than ‘trial’. As noted earlier, in all of these sources, justice and preventing terrorism are equated as being one and the same. Perhaps the greatest irony is that, as German notes: ‘Terrorist groups almost never refer to themselves as terrorists, but rather as soldiers, revolutionaries, holy warriors’;80 therefore, terrorists themselves are enacting a pre-modern form of law, with clear links back to the sacred and the belief that substantive justice is on their side. The line between terrorist and hero therefore becomes a matter of perspective, and this serves as a reminder of how nebulous a concept substantive justice truly is. Finch and Mason’s transgressions are only justified by their client’s innocence, Stabler and Burton by the suspect’s guilt, Vargas by Quinlan’s corruption and (arguably) Bauer by the terrorists’ imminent attack. The further the signifier slides away from the modern rule of law, the more difficult it becomes to justify a ‘hero’s’ actions. Conclusion The popular media are alternatively dismissed as liberal (and therefore unceasingly critical of right-wing policy) or conservative (and therefore controlled by big business interests who use the media to hegemonically reinforce their private opinions). But when we take the time to study popular culture’s signifiers of law (from Atticus Finch through to Jack Bauer), we find instead some quite complex intellectual work being undertaken. First, they make visible the mutability of law as term of definition and the commensurate change in government policy this permits. As Thompson notes: ‘For the past three years shows like Alias, 24 and MI-5 [Spooks] have provided a perverse mirror of the real-life response to terror. They’ve reflected, and sometimes eerily predicted, the rise of torture as a government policy.’81 Thus, while the Guatanamo military tribunals are presented as the public face of state law (merging war and crime into one), popular culture makes visible other less popular state policies — including extra-judicial detention, intimidation and torture — by making them the basis of fictional narratives and bringing them into the public sphere, via the popular media, for wider dissemination. are, in Redhead’s terms,82 exposing the ‘(legal) fiction’ that is presented as ‘legal authority’. Second, popular culture promotes debate about the relationship between law and justice and the balance involved in preserving human rights while protecting security interests. 78 9/11 Commission Report (2004), p 423. 79 US Department of State (2004), p ix. 80 German (2005), p 11. 81 Thompson (2005). 82 Redhead (1995), p 10. 172 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 Certainly Rushkoff’s idea that popular culture is ‘the place for us to evaluate our rules and customs’83 seems to be being borne out. Bob Cochrane, co-creator of 24, has publicly stated that one of the series’ roles is to explore debates around torture, law and justice84 and in this, at least, it appears to have been successful.85 The signifier of law, from lawyer to policeman to government agent, has slid further and further away from the modern rule of law towards an increasingly transcendent and interventionist pursuit of justice. In so doing these signifiers continue to interrogate the law and push the boundaries of what law can be, well beyond the relatively limited and circumscribed space of the courtroom towards increasingly problematic pre-modern notions of ‘justice’ in the wider society. It is a form of intellectual work similar to the notion of ‘work[ing] at the limits of what the rules permit, in order to invent new moves’ that Lyotard advances,86 not only moving the law closer to justice but also promoting debate about how law and justice work together in the wider culture. Re fe re nc e s Secon dar y Sou rc es ABC News Online 2005. ‘Legislation to Broaden Definition of Terrorist Act’, 3 November, www.abc.net.au/news/newsitems/200511/s1496527.html Douglas E Abrams (1998) ‘Picket Fences’ in Robert M Jarvis and Paul R Joseph (eds), Prime Time Law, Carolina Academic Press. Rob Atkinson (1999) ‘Lucifer’s Fiasco: Lawyers, Liars and L’Affaire Lewinsky’ 68 Fordham Law Review 567. Jerold S Auerback (1983) Justice Without Law? Oxford University Press. Jason Bainbridge (2003) ‘Discovering the Law Again: John Grisham, Ed Stevens and the Postmaterial Lawyer’ 30 The Australian Journal of Communication 15. Ernest Baker (1951) Principles of Social and Political Theory, Oxford University Press. Jack Balkin (1994) ‘Transcendental Deconstruction, Transcendental Justice’ 92 Michigan Law Review 1131. Jack Balkin (1987) ‘Deconstructive Practice and Legal Theory’ 96 Yale Law Journal 743. Norman Bary (2000) An Introduction to Modern Political Theory, 4th edn, Macmillan. Roland Barthes (1972) ‘Myth Today’ in Mythologies, Noonday Press. Tony Bennett and Janet Woollacott (1987) Bond and Beyond: The Political Career of a Popular Hero, Methuen. 83 Rushkoff’s (1994), p 52. 84 Thompson (2005). 85 Certainly 24 has achieved this. The Council of American Islamic Relations (CAIR) and a number of other groups complained about the representation of Muslims in Series 4, leading to the screening of ads reminding viewers that most Muslims are good people. 86 Lyotard (1985), p 100. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 173 George W Bush (2005) ‘Second Inaugural Address’, www.whitehouse,gov/news/releases/2005/01/20050120-3.html. Bill Carter 1997. ‘Tracking Down Viewers Till They’re Captured: Stars Come and Go, but NBC’s Law & Order Plugs Away’, New York Times, 19 February, p C11. Anthony Chase 2002. Movies on Trial: The Legal System on the Silver Screen, The New Press. Alan Clarke (1986) ‘This is Not the Boy Scouts’: Television Police Series and Definitions of Law and Order’ in Tony Bennett et al (eds), Popular Culture and Social Relations, Open University. Max Allan Collins and John Javna (1988) The Best of Crime and Detective TV, Harmony Books. Terry Comito (1998 [1985]) Touch of Evil — Orson Welles, director, Rutgers. Glen Creeber (2001) The Television Genre Book, British Film Institute. Jonathan Culler (1976) Saussure, Fontana. Peter Dalghren (1995) Television and the Public Sphere: Citizenship, Democracy and the Media, Sage. Richard Delgado (1993) ‘Discussion’ 45 Stanley Law Review 1671. Jacques Derrida (1982) Margins of Philosophy, trans Alan Bass University of Chicago Press. Jacques Derrida (1992) ‘Force of Law: The “Mystical Foundation of Authority”’ in Drucilla Cornell, Michael Rosenfield and David G Carlson (eds), Deconstruction and the Possibility of Justice, Routledge. Jacques Derrida (1994) Specters of Marx, trans Peggy Kamuf, Routledge. Ferdinand De Saussure, Ferdinand (1983 [1916]) Course in General Linguistics, trans Roy Harris, Duckworth. Ronald Dworkin (1998 [1985]) Law’s Empire, Hart. Richard H Fallon Jr (1997) ‘“The Rule of Law” as a Concept in Constitutional Discourse’ 97 Columbia Law Review 1. James K. Feibleman (1985) Justice, Law and Culture, Martinus Nijhoff. Stephen Feldman (2000) American Legal Through from Premodernism to Postmodernism: An Intellectual Voyage, Oxford University Press. Fifth Estate, The (2005) ‘Sunset on Media Freedom?’ http://fifth.estate.rmit.edu.au/sunset-on-media-freedom.php. John Fiske (1982) Introduction to Communication Studies, Methuen. Lawrence Friedman (2000) ‘Lexitainment: Legal Process as Theatre’ 50 De Paul Law Review 539. Clifford Geertz (1983) Local Knowledge: Further Essays in Interpretive Anthropology, Basic Books. Michael German (2005) ‘Squaring the Error’, in Law vs War: Competing Approaches to Fighting Terrorism: Conference Report. July, www.carlisle.army.mil/ssi. Steven Gillers (1989) ‘Taking LA Law More Seriously’ 98 Yale Law Journal 1608. Judith Grant (1992) ‘Prime Time Crime: Television Portrayals of Law Enforcement’ 15 Journal of American Culture 58. Jurgen Habermas (1997) ‘The Public Sphere’ in Robert E. Goodin and Philip Pettit (eds), Contemporary Political Philosophy: An Anthology, Blackwell. Bob Harris (1996) Politics and the Rise of the Press, Britain and France 1620–1800, Routledge. Herbert Hart (1995 [1961]) The Concept of Law, rev edn, Clarendon Press. John Hartley (1999) Uses of Television, Routledge. Terence Hawkes (1977) Structuralism and Semiotics, Methuen. 174 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 Agnes Heller (1999) A Theory of Modernity, Blackwell. Dawn Keetley (1998) ‘Law and Order’ in Robert M Jarvis and Paul R Joseph (eds), Prime Time Law, Carolina Academic Press. Kathy Laster (2000) The Drama of the Courtroom, Federation Press. Douglas Litowitz (1997) Postmodern Philosophy and Law, University Press of Kansas. Douglas Litowitz (2000) ‘In Defence of Postmodernism’ 4 Green Bag 39. Jean-Francois Lyotard (1984) The Postmodern Condition: A Report on Knowledge, Manchester University Press. Jean-Francois Lyotard (1985) Just Gaming, trans Wlad Godzich with Jean-Loup Thebaud, University of Minnesota Press. Jean-Francois Lyotard (1988) The Differend: Phrases in Dispute, trans Georges Van Den Abbeele, University of Minnesota Press. Lyotard, Jean-Francois (1989) ‘Rewriting Modernity’ 54 Substance 8. Tom Mason (ed) (1989) Erle Stanley Gardner — Four Cases of Murder Starring Perry Mason, Malibu Graphics. Carrie Menkel-Meadow (2001) ‘Can They Do That? Legal Ethics in Popular Culture: Of Characters and Acts’ 48 UCLA Law Review 1305. Jim McGuigan (1996) Culture and the Public Sphere, Routledge. Alan McKee (2001) Australian Television: A Genealogy of Great Moments, Oxford University Press. Alan McKee (2004) An Introduction to the Public Sphere, Cambridge University Press. Joshua Meyrowitz (1985) No Sense of Place, Oxford University Press. 9/11 Commission Report 2004. The 9/11 Commission Report: The Final Report of the National Commission on Terrorist Attacks Upon the United States, WW Norton. Tim O’Sullivan, John Hartley, Danny Saunders, Martin Montgomery and John Fiske (1994) Key Concepts in Communication and Cultural Studies, Routledge. Paul R Pillar (2005) ‘Perceptions of Terrorism: Continuity and Change’, Law vs War: Competing Approaches to Fighting Terrorism: Conference Report, July, www.carlisle.army.mil/ssi. Steve Redhead (1995) Unpopular Cultures: The Birth of Law and Popular Culture, Manchester University Press. Richard Rorty (1989) Contingency, Irony and Solidarity, Cambridge University Press. Douglas Rushkoff (1994) Media Virus: Hidden Agendas in Popular Culture, Random House. Madan Sarup (1996) Identity, Culture and the Postmodern World, Edinburgh University Press. William H. Simon (2001) ‘Moral Pluck: Legal Ethics in Popular Culture’ 101 Columbia Law Review 2. Richard K Sherwin (2000) When Law Goes Pop: The Vanishing Line Between Law and Popular Culture, Chicago University Press. Richard K Sherwin (2001) ‘Nomos and the Law’ UCLA Law Review 1529. Richard Clarke Sterne (1998) ‘NYPD Blue’ in Robert M Jarvis and Paul R Joseph (eds), Prime Time Law, Carolina Academic Press. Jeffrey E Thomas (2001) ‘Legal Culture and The Practice: A Postmodern Depiction of the Rule of Law’ 48 UCLA Law Review 1495. Clive Thompson (2005) ‘Cruel Intentions: TV Torture Scenes are Ugly, Powerful, Exploitative — and a Mirror of Our National Debate’, New York Magazine, 7 February, www.newyorkmetro.com/nymetro/arts/tv/10966. BAINBRIDGE: LAWYERS, JUSTICE AND THE STATE 175 US Department of State (April 2004) Patterns of Global Terrorism 2003, www.globalsecurity.org/security/library/report/2004. Max Weber (1991) Protestant Ethic and the Spirit of Capitalism, trans Talcott Parsons, HarperCollins Academic. Films an d TV Series 24, FOX Network, 2001. Alias, ABC Network, 2001 Arrest and Trial, ABC Network (USA), 1963–64. The Bill, ITV1, 1983– Blue Heelers, Seven Network (Aust), 1994– Boney, Nine Network (Aust), 1972–73 Boston Legal, ABC Network (USA), 2004– Cagney and Lacey, CBS Network, 1982–88 Case for the Defence, Seven Network (Aust), 1974 The Closer, TNT, 2005– Columbo, NBC Network, 1971–77; ABC Network, 1989–93 Compulsion, Dir Richard Fleischer, 1959 Cracker, ITV1 Network, 1993–96 CSI: Crime Scene Investigation, CBS Network, 2000– Dirty Harry, Dir Don Siegel, 1971 Hawaii Five-O, CBS Network, 1968–80 Hill Street Blues, NBC Network, 1981–87 Homicide: Life on the Street, NBC Network, 1993–99 Inspector Morse, ITV1, 1987–2000 In the Name of the Father, Dir Jim Sheridan, 1993 Judge John Deed, ITV, 2004– LA Law, NBC Network, 1986–94 Law & Order, NBC Network, 1990– Law & Order: Criminal Intent, NBC Network, 2001– Law & Order: SVU (Special Victims Unit), NBC Network, 1999– Law & Order: Trial by Jury, NBC Network, 2005 Matlock, NBC Network, 1986–92; ABC Network (US), 1993–95 NYPD Blue, ABC Network, 1993–2005. Perry Mason — radio: 1943–55 — television (first run): CBS Network, 1957–66. — television (second run/different cast): CBS Network, 1973–74 Perry Mason Mysteries, The, NBC Network, 1985–97 The Practice, ABC Network (USA), 1997–2004. Rumpole of the Bailey, ITV1, 1978–92 The Shield, FX Network, 2002– Spooks, BBC, 2002– Stingers Undercover, Nine Network (Aust), 2000–04 The Sweeney, ITV1, 1975–78 176 GRIFFITH LAW REVIEW (2006) VOL 15 NO 1 To Kill a Mockingbird, Dir Robert Mulligan, 1962 Touch of Evil, Dir Orson Welles, 1958 (reconstructed 1998) Trial and Retribution, ITV1, 1997–2004 The Verdict, Dir Sidney Lumet, 1982 Without a Trace, CBS Network, 2002– 
work_eelccsi35jferd2ans6lkckuye	----	<35BCADB5B5BDC42E687770> I. II. ? III. 1. 2. IV. V. DOI : 10.21458/siuh.2016.8.1.005 사회적 노동과 정의 * 1) 서도식 서울시립대학교 철학과 이 논문에서 필자는 호네트의 인정이론에 의거하여 분배적 정의의 핵심 내용이 물질적 재화가 아닌 ‘인정’이라는 도덕적 자원의 재분배에 있음을 주장하고자 한다. 개인의 사회적 노동 활동의 목적은 자기보존 이 아니라 사회적 존재로서의 자신의 가치를 인정받는 데 있다. 왜냐 하면 개인의 사회적 노동의 성과는 타인과 사회 전체의 복지 증진에 기여하기 때문이다. 따라서 개인의 사회적 노동 분업 조직에의 참여와 그의 노동성과에 한 정당한 재분배는 호네트가 열거한 근 사회의 * 이 논문은 2009년도 정부재원(교육과학기술부 인문사회연구역량강화사업비)으로 한국연구재단 의 지원을 받아 연구되었음(KRF-2009-332-A00032). 130 8 1 3 인정 영역 중 하나인 사회적 가치평가 영역, 곧 연 성 확장의 도덕적 전제가 된다. 인정이론적 정의 모델은 이처럼 개인의 노동성과 에 기반한 업적 평가 외에도 사랑, 권리 동등 우 등을 정의의 원칙들 로 삼는 삼극적 모델이며, 사회는 이러한 다원적 정의 원칙들의 이행 으로 사회구성원 각자의 개성과 사회적 포용성의 증 를 뜻하는 도덕 적 진보를 달성한다. 주제어 : 인정, 사회적 노동, 정의, (재)분배, 호네트 
work_eg76hyatyrfnjj2eomipsory3m	----	ewi003 57..75 Ex-Post Egalitarianism and Legal Justice Alon Harel Hebrew University of Jerusalem Zvi Safra Tel Aviv University Uzi Segal Boston College In any legal system, one finds numerous rules, practices, and constitutional pro- visions that are incompatible with utilitarian considerations. It is not merely util- itarianism that fails to explain a diverse range of rules and practices. Other theories that, like utilitarianism, involve ex ante considerations cannot explain them as well. There are two possible primary explanations for the prevalence of these nonutilitarian rules and practices: Kantian (deontological) explanations and a view we label ex post egalitarianism, which requires that the state decides on its action in an egalitarian manner ex post. Our approach allows for compar- isons among different societies by giving meaning to statements like ‘‘Society A is more egalitarian than society B.’’ Furthermore, we show that the more egal- itarian societies should also employ less extreme criminal law rules and should be more sensitive to various kinds of injustice, whether it is caused by individual wrongful behavior or by criminal law rules. 1. Introduction In any legal system, one finds numerous rules and practices as well as consti- tutional provisions that are incompatible with utilitarian considerations (i.e., with maximizing the sum of individual utilities). These rules and practices often grant benefits to an individual whose well-being is at risk; yet the costs of these benefits, in terms of utilities, to other individuals may outweigh these benefits. Thus, for instance, despite the persistent belief of economists that efficiency requires to impose the harshest possible sanctions, legal systems often impose light sanctions and consequently have to bear the high costs of increasing the probability of detection. It is not merely utilitarianism that fails to explain a diverse range of rules and practices. Other theories that, like utilitarianism, involve ex ante We thank Ariel Rubinstein for helpful discussions. Zvi Safra thanks the Israel Institute of Busi- ness research for its financial support. Uzi Segal thanks the National Science Foundation (grant 0111541) for financial aid. The Journal of Law, Economics, & Organization, Vol. 21, No. 1, doi:10.1093/jleo/ewi003 � The Author 2005. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oupjournals.org JLEO, V21 N1 57 considerations cannot explain them as well. An ex ante analysis ranks distribu- tionsofexanteutilitiesbeforepeopleknowtheactualoutcometheyreceive. 1 Ex post analysis, on the other hand, relates to the final distribution of utilities. This analysis, too, is done before information concerning the distribution of final out- comesisrevealed,butrelatestotheevaluationofdistributionsoffinaloutcomes. There are two possible primary explanations for the prevalence of these non- utilitarian rules and practices: Kantian (deontological) explanations and a view we label ex post egalitarianism. Kantian explanations are based on the con- viction that there are nonconsequentialist obligations. The state is sometimes obliged to act or not to act in certain ways even if acting differently is con- ducive to utility, or to the ex ante interests of individuals. Typically those explanations rely on autonomy-based considerations and are based on the belief that respecting the dignity of individuals constrains the promotion of their well-being. For contemporary sophisticated deontological explanations of various rules and practices, see Kamm (1996:143–204). Ex post egalitarianism, on the other hand, requires that the State decide on its actioninanegalitarianmannerexpost.ItdiffersfromtheKantianapproachsince it is founded on a comparison between the well-being of the people who are affected by a certain rule and practice rather than presupposes the existence of moral constraints, which are independent of consequentialist considerations. It differs from utilitarianism since it is concerned with equality, and not only with the maximization of the sum of utilities. Finally, it differs from ex ante analysis, as itconsidersthe well-being of individuals after they have the knowledge of the prevailing social outcomes. The purpose of this article is to demonstrate that some legal rules and practices that are traditionally justified in terms of Kantian explanations can alternatively be explained in terms of ex post egalitarianism. Two impor- tant qualifications should be stated. First, we do not reject Kantian consider- ations. It is not claimed that the rules and practices examined here cannot be explained on the basis of Kantian considerations. Instead, we simply claim that they can also be explained in terms of ex post egalitarianism. Second, it is not claimed here that ex post egalitarianism is an absolute value, which overrides any conflicting values. The rules and practices examined here demonstrate that ex post egalitarianism competes with other considerations such as ex ante anal- ysis and utilitarian considerations. To demonstrate our approach, consider the issue of sentencing practices. As was argued by Becker (1968), sentencing practices pose a great challenge for the utilitarian approach: If criminals react to the expected sanction, then greater deterrence can be achieved by either increasing the probability of de- tection or by increasing the size of the sanction. However, increasing the prob- ability of detection is much more costly than increasing the size of the sanction. Hence the most efficient way to deter criminals is to impose the harshest 1. Note that when we use the term ‘‘ex ante’’ we do not discuss the extreme situation of ex ante decision process—the situation in which the decision is made behind the ‘‘veil of ignorance,’’ before the individual is even aware of his personal characteristics. 58 The Journal of Law, Economics, & Organization, V21 N1 sanction possible and to reduce accordingly the probability of detection. In reality, however, sanctions do not conform to Becker’s recommendations and they are usually proportional to the degree of culpability and wrongfulness of the crimes committed. Numerous explanations were provided to the puzzle raised by Becker. First, if criminals are risk averse, an increase in the sanction is not a costless transfer payment. Increasing the sanction and reducing the probability increases the risk faced by individuals. Second, the system proposed by Becker eliminates marginal deterrence—the incentive to substitute less for more serious crimes. We suggest below the following explanation. Sanctions generate inequality because those who are subjected to the sanctions are worse off relative to those who are not. The harsher the sanction is, the larger is the inequality between two classes of individuals, namely those offenders who are subjected to the sanction and nonoffenders who are subjected to the sanction by mistake, and offenders and nonoffenders who are not subjected to the sanction. Harsh sanctions are indeed, as Becker observed, required by consideration of aggre- gate utilities. Yet social interests in harsh sanctions must be balanced against social concerns for equality. Therefore it may well be the case that what dic- tates limits on the size of sanctions is ex post egalitarianism and not retributive justice considerations. Our approach allows for comparisons among different societies by giving meaning to statements like ‘‘Society A is more egalitarian than society B.’’ Furthermore, we show that the more egalitarian societies should also employ less extreme criminal law rules and should be more sensitive to various kinds of injustice, whether it is caused by individual wrongful behavior or by the society’s criminal law rules. As we elaborate in Section 8, such societies would use less harsh sentencing practices; furthermore, they would try to avoid wrong- ful convictions by raising the required burden of proof and, at the same time, they would try not to sacrifice minorities for the sake of the whole society. In Section 2 we present social policies and discuss the ex post and ex ante approaches. We define the notion of being an ex post egalitarian society and provide a way for comparing levels of egalitarianism among societies. In Sec- tion 3 we present our results, and we present our results and offer some appli- cations in Section 4. Formal analysis is deferred to the appendix. 2. Social Policies and Their Evaluation Consider a situation where individuals are facing some uncertainty regarding outcomes that are controlled by society, for example, road accidents or some health-related issues. There are many individuals and we assume that the risks they face are independent of each other. If society is sufficiently large, we can assume, for practical measures, that the proportion of those who receive a cer- tain outcome equals the probability of receiving this outcome. For example, if each member of society is facing an independent chance of 2% to fall victim to a car theft, then in a large society the probability that the true proportion of victims will differ from 2% by more than e is negligible. Social policies are Ex-Post Egalitarianism 59 often aimed at controlling these proportions, but they rarely try (or are even able) to determine the recipients of each outcome. For example, lower speed limits or wider road shoulders reduce the probability of fatal car accidents, but they do not tell who will be involved in accidents. There are two extreme ways in which society can view such issues: ex ante and ex post. Suppose that society is facing a choice between two economic policies. One implies an annual increase of 5% in everybody’s utility, the other provides each person with an independent risk, where there is a 50% chance of a 10% increase and a 50% chance of no change in utility. From an ex ante per- spective, both policies are equally attractive, as all expected utility maximizers are indifferent between the two. But the two policies may differ from an ex post perspective. The first implies a 5% increase in the utility of all. As individual risks are independent, the second policy implies (for a sufficiently large so- ciety) a 10% increase in the utility of half of the population and no change in the utility of the rest. If initially everybody’s utility is 100, now half of the population will have 110 and half will get only 100. Ex post, the two pol- icies are not the same and a nonutilitarian society may not be indifferent between them. Which is the correct analysis, the ex ante or the ex post? Consider another situation, where one unit of an indivisible good needs to be given to one of two individuals. Both receive utility one from receiving it and zero otherwise. All allocation procedures lead to an uneven allocation of ex post utility, one person receives one, the other zero. Diamond (1967:765) suggested randomization over the two individuals as a tool for improving social well-being, thus cre- ating ex ante egalitarianism. There is an extensive discussion in the literature about whether social welfare is really improved by such randomizations. Broome (1984a,b) argues in favor of ex post analysis, claiming that equality of expected utilities is not a real equality. Harsanyi (1977) also argues against attributing ex ante egalitarianism any significant value. Epstein and Segal (1992) focus attention on ex ante analysis, while Karni and Safra (2000) and, more explicitly, Ben Porath, Gilboa, and Schmeidler (1997) try to com- bine both ex post and ex ante consideration into one evaluation function. This article offers an ex post analysis, while assuming that society is not necessarily utilitarian (i.e., evaluations of social policies do not depend solely on the sum of individual utilities). We restrict attention to situations where each social policy leads to a known ex post distribution of utilities. As argued above, even though we cannot predict individual outcomes, we nevertheless know, for each policy, what proportion of the population will receive each possible utility level. We evaluate such distributions using a social welfare function W, which, not being utilitarian, is not necessarily linear. A utilitarian society is interested in maximizing the sum of individual util- ities and does not pay attention to the diversity of the distribution of utilities. Preferences for equality imply that society will be willing to reduce the av- erage utility in order to make the distribution more concentrated around its mean. Such concerns can be represented by quasi-concave functions, where the social evaluation of the average of two equally attractive distributions 60 The Journal of Law, Economics, & Organization, V21 N1 is better than both. 2 Such functions can be monotonic in individual utilities, but are also sensitive to utility differences between individuals, and admit some trade-off between the sum of utilities and their disparity. We now present an outline of our model; a more formal analysis appears in the appendix. Given two distributions of utility x and y, the mixture ax þ (1 � a)y gives each individual a times his allocation under x plus 1 � a times his allocation under y. For example, if x ¼ (3, 1) and y ¼ (1, 5), 1 2 x þ 1 2 y ¼ ð2; 3Þ. Our first assumption is that mixtures of equally attractive ex post utility distributions improve social welfare. Quasi-Concavity. Let x and y be two distributions of utility. If W(x) ¼ W(y), then for all a 2 (0, 1), W(ax þ (1 � a)y) c W(x). Strict quasi-concavity requires that for all x 6¼ y, W(x) ¼ W(y) implies W(ax þ (1 � a)y) > W(x).3 As mentioned above, we are interested here in utility distributions and do not care for the identity of the individual recipients of these utilities. Distri- bution x of utilities can therefore be represented as a cumulative distribution, where Fx(u) is the proportion of individuals whose utility given x does not exceed u. Two distributions that lead to the same cumulative distribution should therefore be equally attractive. Symmetry. If the two utility distributions x and y satisfy Fx ¼ Fy, then W(x) ¼ W(y). The major concept of the article is that of egalitarian social welfare functions: Definition 1. We say that a social welfare function is ex-post egalitarian if it is strictly quasi concave and symmetric. For a meaningful comparative statics analysis, we need to be able to com- pare different societies. For this, we will need the following concept: Definition 2. A social welfare function W# is more egalitarian than another social welfare function W if, whenever the society with the social welfare func- tion W is willing to sacrifice the difference between the averages of the two distributions in order to improve equality, so does the society with the social welfare function W#. 2. Recall that from an ex ante perspective, such functions imply preferences for randomizations. 3. Note the relation of this definition to Diamond’s (1967:765) argument in favor of ex ante evaluation—choosing the utility distribution x with probability p and y with probability 1 � p yields each individual expected utility that is equal to p times his utility under x plus 1 � p times his utility under y. Preferences for randomization imply quasi-concave preferences over social lotteries. Assuming that all individuals are expected utility maximizers, such preferences imply that the social welfare function is quasi-concave in ex ante utilities (Epstein and Segal, 1992). Ex-Post Egalitarianism 61 (see the Appendix for a more precise definition). Figure 1 depicts this concept for the case of two individuals. In this picture, W# is more egalitarian than W and distributions between x and E[x] (the average of the distribution x) display more equality. In the region between x and the main diagonal, the indifference curve through x of W# is lower than the corresponding indifference curve of W, hence W# is showing more egalitarianism than W. In the literature, considerations of equality that are based on cumulative dis- tributions lead to the concept of aversion to mean-preserving spreads. How- ever, by Dekel (1986), if W is symmetric and quasi-concave, then W must also represent such aversion, hence this concept of equality is related to the concept of quasi-concavity discussed above. 3. More Egalitarian Societies Suppose that society has control over a decision variable a 2 [0, 1] that leads to a utility distribution c(a). We assume that a > b implies that there is s such that the distribution of c(b) þ s is a mean-preserving spread of the distribution of c(a). In other words, as a moves from zero to one, c(a) is becoming more and more concentrated (even with respect to a changing average). The curve c(a) is called a track. The optimal value of a depends on social preferences, and our aim here is to compare these optimal values for societies with different degrees of ex post egalitarianism. The main result of the article is that the more egalitarian the society, the further it is willing to sacrifice average utility in order to reduce the variation of the optimal utility distribution. This result is stated in the following theorem. Figure 1. W# is more egalitarian than W. 62 The Journal of Law, Economics, & Organization, V21 N1 Theorem 1. If W# is more egalitarian than W, then along a track c where there is a substitution between average utility and spread, the optimal point for the more egalitarian function has a weakly lower sum of utilities and more concentration than the less egalitarian function. We present a formal statement of this theorem and provide a proof in the appendix. Moreover, we provide three conditions for a strict result (Theorem 2). Another result, implied by both theorems, is that an egalitarian society chooses a utility distribution that is more concentrated than the one chosen by a utilitarian society. This result is stated in the following corollary (and is proved in the appendix). Corollary 1. Let W be an ex-post egalitarian social welfare function and let c be a differentiable track. The optimal utility distribution of W is more con- centrated (and has a lower sum of utilities) than the optimal distribution of a utilitarian society. 4. Applications In this section we discuss some applications of our main result, namely, that a more egalitarian society will go further in the direction of reducing utility spread, even at the cost of total utility. 4.1 Victims of Crime versus Victims of the Criminal Law System Under the most fundamental principles of evidence law, facts constitutive of the defendant’s guilt have to be proven beyond a reasonable doubt. 4 This rule is perceived by practitioners as well as scholars to be grounded in justice-based considerations; it is often described as a right of defendants against the state. The rhetoric of rights and justice used in the justification of the strict standard of proof is often hostile to utilitarian calculations. This is no accident; utili- tarianism cannot in general justify the heightened burdens of proof associated with this principle. To see it, assume that a legal system can adopt either a strict or a lenient rule of proof. Under the strict rule, guilt has to be proven beyond a reasonable doubt. Under the lenient rule, guilt has to be proven in a ‘‘satisfactory man- ner.’’ Each one of these alternative rules involves costs and benefits, and there 4. This is an old principle of common law. An important articulation of it can be found in the English landmark case of Woolmington v. DPP [1935] A.C. 462. The court stated there unambig- uously that ‘‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained’’ (see Woolmington v. DPP [1935] A.C. 481). In the United States the same principle is regarded as required by the due process clause. The Supreme Court stated that this clause ‘‘protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.’’ See In Winship, 397 U.S. 358, 364 (1970). The rule however had much longer and deeper roots which can be traced to Roman law (Williams, 1963:186–190). Ex-Post Egalitarianism 63 is some trade-off between convicting the innocent and acquitting the guilty (Williams, 1963:188, Wertheimer, 1977:51–52). It is reasonable to believe that a legal system that adopts the lenient rule fulfills better its task of protecting its citizens from crime than a system that adopts the strict rule and the costs of the strict principle in terms of deterrence may outweigh the benefits the strict principle provides to the innocent people who are better protected under it from wrongful conviction. In that case, util- itarianism dictates a rejection of the strict rule. In their efforts to justify the strict rule, utilitarians often develop justifica- tions that depend on some restrictive assumptions. Bentham (1825:197), for example, supported the claim that there ought to be a presumption in favor of the accused, writing: ‘‘Generally speaking, a too easy acquittal excites regret and uneasiness only among men of reflection; while the condemnation of an accused, who turns out to have been innocent, spreads general dismay; all se- curity appears to be destroyed; no defence can any longer be found, when even innocence is insufficient.’’ Yet moral theorists usually reject utilitarian justi- fications for the principle that guilt should be proven beyond a reasonable doubt (Dworkin, 1986:72,81–84). Some of their arguments rely on the intu- ition that wrongful conviction seems to be a direct interference in the lives of an innocent person. In contrast, the failure to prevent a crime is merely an omission on the part of the state. Expostegalitarianismisanin-betweenapproach.LikeBenthamandlikeutil- itarianism, it does not ignore the individual costs and benefits of different bur- dens of proof. However, it also considers social norms and notions of justice, whicharerepresentedbythequasi-concavityofthesocialwelfarefunction.Such functions pay more attention to the well-being of those members of society who areworseoffcomparedtotherest.Toillustrate,considerthefollowingstructure. Society is composed of innocents and criminals. Innocent people face the risk of wrong conviction and the risk of criminal victimhood. Criminals may or may not be caught and convicted (for simplicity, we ignore minor groups such as criminals who are not convicted but are victims of crime). For a given level of burden of proof a, we get an ex post utility distribution of the form cðaÞ ¼ ðui; piÞ5i¼1; where u1 is the utility of convicted innocents, u2 is the utility of convicted criminals, u3 is the utility of innocent victims of crime, u4 is the utility of innocents, and u5 is the utility of the unconvicted criminals. We as- sume that crime benefits the criminal, that punishment is more severe than the consequences of the criminal act, and that wrongful conviction is worse than just conviction to the bearer of the punishment. Therefore we assume u1 < . . . < u5 (see distribution s1 —the continuous line—in Figure 2). As explained in Section 2, pi is the proportion in the population of those who receive utility ui (and is also the probability of getting this utility level). Society now raises the burden of proof while simultaneously raising the probability of detection so that the level of crime in society remains untouched. The reason for this simultaneous act is the desire that the cost of the increase in crime level be shared by the whole society and not only by the additional vic- tims. Criminals are interested in the probability of being punished, which is the 64 The Journal of Law, Economics, & Organization, V21 N1 product of the probability of detection and the conditional probability of con- viction given detection. As crime does not change, this combined probability too does not change. Moreover, assuming one crime per criminal, the number of criminals is unchanged. Therefore the number of those who receive utility levels u2 and u5 is unchanged. Also, the size of the u3 part of society is not changed—these being the people who suffer from crime. Obviously the combination of higher burden of proof and higher rate of de- tection that does not change the crime rate will reduce the number of convicted innocents, hence the size of the u1 level will go down, while the size of the u4 group will increase. Better detection is of course not cost free. Suppose that society finances the cost by taxing those who are not convicted and did not suffer from crime, that is, groups 4 and 5. 5 The new distribution is depicted by curve s2 (the dotted line). Obviously the second distribution intersects the first one only once, and from below. If the first distribution is optimal, then the new distribution must have a lower expected value, otherwise, as it is less spread than before, a higher expectation would have prevented distribution s1 from being optimal, even for a utilitarian society, and certainly for an egalitarian one. We strengthen this statement by assuming that the expected value is actually monotonically decreasing as we move from the first to the second distribution. The conditions of Theorem 1 are thus satisfied (observe that the set of dis- tributions society can choose from is a track) (section 3). Even when the second distribution is shifted to the right by the whole increased cost of detection, there will be only one crossing point, and the expected value of the shifted distribution will be more than the expected value of distribution s1 ). We there- fore find out that the more egalitarian society will seek a higher level of burden of proof. Our analysis does not imply that the optimal social policy is to set the burden of proof at its highest possible level (‘‘beyond any reasonable doubt’’). We Figure 2. Burden of proof. 5. Arguably, one should tax group 3 as well (recall that groups 1 and 2 cannot be taxed, as they are serving jail terms). However, we will ignore this tax in order to satisfy the conditions of Theorem 1. For infinitesimal changes this tax is indeed negligible, as the number of those who suffer from (serious) crime is small compared to the number of those who are not affected by it, and the tax is small compared to the sanction against criminals. Ex-Post Egalitarianism 65 recognize the validity of two claims on the social ruling. The obligation to increase social well-being, but also the obligation to promote equality. Unlike utilitarianism, and unlike some of the above justifications for the strict rule, we refuse to give one claim lexicographic dominance over the other. Ex post egal- itarian social welfare functions do indeed take both factors into consideration. 4.2 Torture and Other Forms of Cruel Punishment One of the most puzzling concerns of the legal economist is the ceiling on the size of the criminal sanction. Since Becker (1968), legal economists tried to explain the reasons for the widely held intuition that the criminal law system should not impose the maximally possible sanctions. Becker’s argument is simple and yet compelling. An expected punishment of $1000 can be imposed by different combinations of fines and probabilities of apprehension. If the costs of collecting fines are assumed to be zero, regard- less of the size of the fine, but the costs of apprehending and convicting crim- inals rise with the probability of apprehension, 6 then the most efficient combination is a probability close to zero and a fine arbitrarily close to infinity (see Becker, 1968; see also Posner, 2003:219–227). Under this argument, the only optimal sanction for every crime is the most extreme—possibly torture and death. Such a sanction enables one to obtain that even very low probability of apprehension and conviction would be sufficient to guarantee a sufficiently large expected sanction. Yet our legal system does not conform to the Becker model. Instead, our system imposes a ceiling on criminal sanctions. Torture is prohibited altogether in modern legal systems and most modern legal systems do not impose capital punishment. There are several primary explanations for the ceilings on criminal sanc- tions. Some legal economists dispute some of the presuppositions of Becker’s analysis. They point out that criminals may be risk averse or risk preferring, and if criminals are not risk neutral, Becker’s analysis does not yield the same outcome (Polinsky and Shavell, 1979). Moreover, economists point out the importance of marginal deterrence, that is, the incentive to substitute less for more serious crimes as a reason for differentiating between the sanctions imposed for different crimes (Shavell, 1983:1245–1246; Posner, 2003:222). Traditional criminal law provides, Kantian justification to the ceiling on sanc- tions. The wrongfulness and the culpability of criminals dictate what they de- serve and criminal law should not impose any sanctions that exceed what is being deserved. For a use of this Kantian insight, see Nozick, (1981/2000:363– 397) and Fletcher (2000:454–491). Ex post egalitarian considerations could explain the very same phenome- non. Criminal sanctions yield benefits that are provided to the public at large at the cost of the particular individual upon whom they are imposed. The im- position of criminal sanctions contributes to the well-being of others by 6. These costs are increasing with the probability because higher probabilities imply more po- lice, prosecutors, judges, defense attorneys, etc. 66 The Journal of Law, Economics, & Organization, V21 N1 producing deterrence. Yet, if too large sanctions are imposed on a small group of individuals, the disparity between the well-being of those who bear the costs of deterrence and those who benefit from it is too large. The ceiling on the criminal sanction is aimed at constraining this disparity. As before, society is composed of innocents and criminals. The first group consists of victims of crime (with the utility u2) and of nonvictims (with the utility u3), while the second group consists of those who are punished (u1) and of those who are not (u4). 7 Here too we assume that crime benefits the criminals and that punishment is more severe than the consequences of the criminal act. Therefore we assume u1 < . . . < u4, see distribution s1 in Figure 3. Society now reduces the severity of punishment while simultaneously rais- ing the probability of detection so that the number of convicted criminals is not higher than before. It follows that the number of criminals is thus decreasing (as before, we assume one crime and one victim per criminal). This, of course, is not cost free (otherwise, society would not have been at an optimal point), and we assume, as before, that the financial burden falls on the shoulders of those who are not convicted and did not suffer from crime (see footnote 5). The new distribution is depicted by curve s2. In this distribution, the utility of convicted criminals is higher than before (as the punishment is less severe), and there are not more of them than before. The utility of unconvicted crim- inals is less than before (they have to pay for better detection), and since the overall crime rate is down and the probability of detection is higher, the size of this group diminishes. As there are fewer crimes, there are fewer victims of crime, but their utility is the same as before. Finally, less crime means more people who are neither criminals nor victims (the old u3 group), but since they Figure 3. Cruel punishment. 7. We ignore here the possible existence of innocent people who are wrongly convicted. For the sake of simplicity, we assume that all innocent people share the same utility. Relaxing this assump- tion would not affect the outcome of our analysis. For example, introducing an additional group of typical and nonactive potential criminals whose social state is inferior to innocent non-victims and superior to innocent victims would create a new utility level u# between u2 and u3. Since it is reasonable to assume that this group is small and less wealthy, and hence only little taxes are imposed on it, our analysis holds for this case as well. Ex-Post Egalitarianism 67 have to pay for better detection, their utility goes down. Obviously the new distribution intersects the first one only once, and from below. If the first distribution is optimal, then the new distribution must have a lower expected value, otherwise, as it is less spread than before, a higher expectation would have prevented distribution s1 from being optimal even for a utilitarian society. We thus assume that the expected value is monotonically decreasing as we move from the first to the second distribution. It is reasonable to assume that crime benefits criminals less than the harm it imposes on its victims (otherwise it would have been socially optimal to have more crime, at least for a utilitarian society). In other words, u4 � u3 < u3 � u2. Moreover, since the number of convicted criminals is reduced, the change in the number of victims must be higher than the change in the number of un- punished criminals. In other words, when the new distribution s1 is shifted to the right by the full amount of the increased cost of detection, its expected value will be higher than the original distribution, hence the social choice set is a track. The conditions of Theorem 1 are thus satisfied, and we therefore find out that the more egalitarian society will seek less severe punishment than the less egalitarian one. 4.3 Sacrificing Some for the Rest The problem of whether or not society should sacrifice some (hopefully few) individuals to save the rest is at least 2500 years old. In Iphigeneia at Aulis, Euripides describes the attempted sacrifice of Iphigeneia to appease Artemis’ wrath, thus obtaining fair wind to carry the Greek navy out of the bay of Aulis to sail for Troy (Hornblower and Spaworth, 1996:765). Similarly the rabbin- ical law deals with the situation of a group of people who are surrounded by enemies and are asked to surrender one of them to be killed. The law is that they should all be killed, but should not do it, unless the enemy specified the one they wanted (Tosefta, 1977:20). In both sources there is an unambiguous reluctance to accept the idea that social goals may be achieved by sharply re- ducing the well-being of some members of society. Figure 4. Sacrificing some for the rest. 68 The Journal of Law, Economics, & Organization, V21 N1 In this subsection we discuss a similar problem, where society can reduce the utility of a minority to improve the position of the majority. We assume a homogeneous society, where initially everyone has utility level u1. By re- ducing the utility of some members of society it is possible to increase the utility of the rest—two such possibilities are depicted in Figure 4 (distributions s2 and s3 distribution s1 represents the fully egalitarian situation). Such redis- tributions of utility can be obtained, for example, by a military draft, jury duty, and other such obligations. If the expected value of the third distribution is less than that of the second one, then there is no point in switching from s2 to s3 even in a utilitarian society. We therefore assume that the expected value in monotonically decreasing as society is moving from distribution s3 to s2. Shifting distribution s3 to the left to get the same expected value as that of distribution s2 will maintain the single, fewer crossing property of the two distributions, hence Theorem 1 may be applied. We obtain that the more egalitarian society will opt for fewer benefits for the privileged at the cost of the underprivileged. We would like to emphasize that our analysis does not imply that society should not recruit only part of the citizenry, as it may well be that the fully egalitarian distribution is suboptimal, for example, when a relatively modest reduction in utility for a small number of individuals can significantly increase the utility of the rest. But the ex post egalitarian society is certainly more sen- sitive than the utilitarian society to issues of utility distribution, and will there- fore ask for greater benefits for the privileged than the utilitarian society before it agrees to further sacrifices by the underprivileged. 5. Conclusion Our most fundamental rules and practices constrain the pursuit of maximiza- tion of utility. It is often natural to explain these constraints as grounded in deontological considerations founded on principles of dignity and inviolability of persons. This indeed has been the explanation traditionally given to many of the rules and principles constraining the pursuit of utility. This article provides an additional explanation—one that relies on principles of ex post egalitarianism. More specifically, it is argued that ex post egalitar- ianism can explain a broad array of rules and practices, including the require- ment that guilt be proven beyond reasonable doubt, the prohibition on torture and cruel and unjust punishment, and the prohibition of sacrificing some for the sake of saving others. These rules and practices constrain the pursuit of utility. At the same time, they reallocate utility in a fashion that promotes ex post egal- itarianism. More specifically, they reduce the costs which otherwise would be imposed on people whose well-being turns out ex post to be lower at the expense of those whose well-being turns out ex post to be higher. Unlike ex ante egalitarianism, which is often achieved through randomiza- tions over social members, ex post egalitarianism involves a real transfer of goods from some individuals to others. It is therefore important that these goods be divisible, as indeed are the goods in all of our examples. Ex-Post Egalitarianism 69 6. Appendix Let X be the set of real bounded random variables on the probability space (S, R, P), and let Fx denote the cumulative distribution function of x 2 X, where X is the set of all utility distributions. Generic elements of X are denoted x, y, z, while degenerate random variables are denoted r, s, t. Scalars are denoted a, b, c. A preference relation c is a binary relation on X that is complete, transitive, continuous, 8 and monotone with respect to the relation of first-order stochastic dominance (as usual, ; denotes indifference and _ denotes strict preference). The preference relation c is symmetric if for all x; y 2 X; Fx ¼ Fy 0 x ; y: It is quasi-concave if for all x; y 2 X; x ; y 0 "a 2 ð0; 1Þ; ax þ ð1 � aÞy c x (strict quasi-concavity is defined with strict preferences). Note that quasi concavity is defined with respect to outcomes, and not with respect to probabilities. By construction, quasi-concavity implies preferences for av- eraging, hence it is related to equity-seeking behavior. Let U denote the set of all symmetric and quasi-concave preference relations on X. The social welfare functions W and W# used in this article represent preferences in U. Example 1. Consider the set L � U of preference relations that satisfy positive linearity: for all a > 0 and for all r 2 v x c y5ax þ r c ay þ r Let c 2 L and pick a non-degenerate utility distribution x. The preference relation c can be fully reconstructed from the set fy 2 v : y ; x and E½y� ¼ E½x�g and from the unique degenerate distribution a that satisfy a ; x. The set L was characterized in Safra and Segal (1998). Definition 3. Let c, c# 2 U. The preference relation c# is more egali- tarian than c if for all x 2 v fy 2 v : y c x and E½y�E½x�g � fy 2 v : y#x and E½y�E½x�g The preference relation c# is strictly more egalitarian than c if these inclu- sions are strict for all non-degenerate x. Note that the relation ‘‘more egalitarian than’’ is a partial order on the set of preference relations U. Fact 1. Assume c# is more egalitarian than c and that they are both strictly quasi-concave. Then, for all x 2 X; fy 2 X : y ; #x and E½y� ¼ E½x�g ¼ fy 2 X : y ; x and E½y� ¼ E½x�g: That is, both induce the same preferences over subspaces in which the expected values are fixed. 8. We use the topology of weak convergence with the Lévy metric on it. This metric is defined by d(F, G) ¼ inffe > 0: For all x, G(x – e) – e � F(x) � G(x þ e) þ eg; see Huber (1977). 70 The Journal of Law, Economics, & Organization, V21 N1 Proof. Let x 2 X and denote Ix ¼ fy 2 X : y ; x and E½y� ¼ E½x�g and I#x ¼ fy 2 X : y ; #x and E½y� ¼ E½x�g: First consider y 2 Ix. By definition, y c# x. If y c# x, then x 2 fz 2 X : z c y and E½z� � E½y�gnfz 2 X : z c #y and E½z� � E½y�g; a contradiction to the assumption that c# is more egalitarian than c. Next consider y 2 I#x\Ix and let a denote the degenerate utility distribution in which all utilities are equal to E[x]. By strict quasi-concavity, a _ x and a _ y. If x _ y, then, by continuity, there exist k 2 (0, 1), such that z ¼ ky þ (1 � k)a satisfies z ; x. Since z 2 Ix, it follows by the above argument that z 2 I#x, hence z ; #y; a contradiction to the strict quasi-concavity of c#. Since y;Ix, it must be the case that y _ x. By the strict quasi-concavity of c# and the continuity of c, there exists z satisfying E[z] ¼ E[x], x _#z, and z _ x. Hence, z 2 fy 2 X : y c x and E½y� � E½x�gnfy 2 X : y c #x and E½y� � E½x�g; a contradiction to the assumption that c# is more egalitarian than c. n Let x8y denote that Fy is a mean-preserving spread of Fx while Fx 6¼ Fy. The following fact shows that if c# is (strictly) more egalitarian than c, then, whenever the addition of r > 0 suffices to compensate the preference relation c# for the lack of equity manifested by y, then r (more than) suffices for the preference relation c. This result demonstrates the close connection between our definition and the strong measure of risk aversion suggested by Ross (1981). Note that the analysis of Ross is restricted to a subset of preferences in U—preferences that correspond to expected utility preferences in the liter- ature on risk. Fact 2. If c# is more egalitarian than c, then, for all x; y; r 2 X such that x 8 y, y þ r c #x 0 y þ r c x: Similarly, if c# is strictly more equitable than c, then y þ r c #x 0 y þ r_x: Proof. Let x, y, and r satisfy x8y, y þ r c#x, and x _ y þ r. By mono- tonicity, there exists z ¼ y þ r# (r# > r) satisfying z ; x and z ;#x þ r$ _# x (r$ > 0). Hence x belongs to fw 2 X : w c z and E½w� � E½z�g; while it does not belong to fw 2 X : wc#z and E½w� � E½z�g; a contradiction to the assumption that c# is more egalitarian than c. n Definition 4. A track is a function c : [0,1] / v such that a > b 0 cðaÞ 8 cðbÞ þ s for some s 2 v.9 9. s is a function of a and b. Ex-Post Egalitarianism 71 Note that s can be either a positive or a nonpositive distribution. Also note that if c(a) is a degenerate distribution, than a¼1. Otherwise, if c(a) is a mean- preserving spread of c(1) þ s, then c(a)¼ c(1) þ s, while the definition of 8requires the two to be different from each other. Theorem 1. Let c, c# 2 U and assume that c# is more egalitarian than c. Let c be a track and let c (a) and c (a#) be the unique optimal distributions of c and c# along c, respectively. Then a# � a. Proof. Suppose that a > a# and let s satisfy c(a)8c(a#) þ s. Consider first the case s c 0. The quasi-concavity of c# implies that c(a)c#c(a#) þ s. By monotonicity, c(a#) þ s#c(a#), hence c(a)c#c(a#), a violation of the assump- tion that a# is the unique optimal point of c# along c. Suppose now that s < 0. By assumption, c(a#) c#c(a). Since c# is more egalitarian than c, it follows Fact 2 and from the fact that c(a)8c(a#) þ s that cða#Þ ¼ ½cða#Þ þ s� þ ð�sÞ_#cðaÞ 0 cða#Þ_cðaÞ: A contradiction to the assumption that a is the unique optimal point of c alongc. It thus follows that a# c a. n Figure 5. Proof of Theorem 2. 72 The Journal of Law, Economics, & Organization, V21 N1 Next we want to establish conditions under which a# is strictly greater than a. Define the positive tangent c#þ(a) to satisfy c#þðaÞ ¼ lim anYa ¼ cðanÞ � cðaÞkcðanÞ � cðaÞk ; where k�k is with respect to the Lévy metric (see footnote 8). Definition 5. The track c : [0,1] / v is equitably-differentiable if for all a the tangent c#þðaÞ is well defined and there exists �c > 0 such that for all 0 < c < �c; cðaÞ þ cc#þðaÞ8cðaÞ þ s for some s ¼ s (a, c) 2 v. The ray cðaÞ þ cc#þðaÞ is the linear continuation of the curve c from the point c(a). The condition of the last display equation says that small movements in this direction increase the level of equity. (Recall that all preferences in U are quasi-concave.) Definition 6. The preference relation c 2 U is smooth is for all non- degenerate x 2 v there exists a unique linear function gx : v / < such that y ; x implies gx(y) � gx(x), and moreover, gx is continuous in x. Since a hyperplane in X is an indifference set of a linear function, it follows that if a preference relation c 2 U is smooth, then for all x 2 X there is a unique hyperplane Hx supporting the indifference set at that point. Note that Fréchet differentiability may not imply this property (Machina, 2001; Safra and Segal, 2001). Let c, c# 2 U be strictly quasi-concave and smooth and assume that c# is strictly more egalitarian than c. Let Hx (similarly H#x) be the supporting hyperplane to the indifference set of c(c#) through the nondegenerate dis- tribution x. Let D denote the line generated by all degenerate distributions, D ¼ fr : r 2 Xg; and consider the two-dimensional plane T ¼ SpanfD, xg. By monotonicity, D is not contained in Hx, hence Hx \ T is a line. By monotonicity and quasi-concavity there exists t satisfying ftg ¼ (Hx \ T) \ D and, by symmetry and strict quasi-concavity, t < E[x] (see Figure 5). By construction, Hx \ T ¼ fxg þ Spanfx � tg. Let Jx (J#x) be the indifference curves of c (c#) in T through x. Let Gx ¼ fy 2 X : E½y� ¼ E½x�g: Clearly, Hx ¼ SpanfHx \ Gx, x � tg and, by Fact 1, H#x \ Gx ¼ Hx \ Gx. By definition, the curves Jx and J#x intersect each other at x such that the following holds: Jx lies above J#x between x and D and Jx lies below J#x other- wise. This, however, is not sufficient to imply that x þ (x – t) does not belong to H#x. To have this, we assume the following generic assumption: ð*ÞFor all nondegenerate x; HðxÞ 6¼ H#ðxÞ: Ex-Post Egalitarianism 73 Note that the set of points fx : Hx \ T ¼ H#x \ Tg is the complement of an open and dense set (by comparability, Hx \ T ¼ H#x \ T iff Hx ¼ H#x; by smoothness, the set of points where Hx 6¼ H#x is open; and the fact that c# is more strictly equitable than c implies that there is no open set on which Hx ¼ H#x). Theorem 2. Let c, c# 2 U be strictly quasi concave and smooth. Assume that c# is strictly more egalitarian than c, and that condition (*) is satisfied. Let c be an equitably-differentiable track and let c(a) and c(a#) be the unique optimal points of c and c# along c, respectively. If a < 1, the a# > a. Proof. Since a < 1, c(a) must be a non-degenerate distribution (see the discussion after Definition 2 above). By Theorem 1, it is sufficient to show that a# 6¼ a. Consider the tangent c#þ(a). By the optimality of x, x þ c#þ(a) 2 Hx. There- fore x þ c#þ(a) ¼ z þ d(x � t) for some d, where z 2 Hx \ Gx ( ¼ H#x \ Gx). We show that x þ c#þ(a) does not belong to Hx \ Gx. Assume the contrary. Since c is equitably differentiable, it follows that for sufficiently small c > 0, c(a) þ cc#þ(a)8c(a) (note that the s in the definition of an equitably differentiable track satisfies s ¼ 0). The smoothness of c implies that for sufficiently small c > 0, c(a þ c) c c(a); a contradiction. Therefore d 6¼ 0. It follows by condition (*) that x þ (x � t) does not belong to H#x. Now d 6¼ 0 implies that x þ c#þ(a) does not belong to H#x. Therefore the optimality of c(a#) for c# shows that c(a#) 6¼ x and a# 6¼ a. n Corollary 2. Let c, c# 2 U such that c# is strictly quasi concave and smooth and c is a utilitarian preference relation. Let c be an equitably- differentiable track and let c(a) and c(a#) be the unique optimal points of c and c#, respectively. If a < 1, then a# > a. Proof. We will use the notations of the previous proof. By Theorem 1, a# c a. The condition that c is a utilitarian preference relation implies that the supporting hyper plane to the indifference set of c through the nondegenerate distribution x satisfies Hx ¼ Gx (note that t ¼ E[x]) and the tangent vector x þ c#þ(a) belongs to Hx \ Gx. As in the former proof, the facts that c is equitable- differentiable and that c# is smooth, symmetric, and strictly quasi-concave imply that for sufficiently small c > 0, c(a þ c) c#c(a), hence a# > a. References Becker, G.S. 1968. ‘‘Crime and Punishment: An Economic Approach,’’ 76 Journal of Political Economy 169–217. Ben Porath, E., I. Gilboa, and D. Schmeidler. 1997. ‘‘On the Measurement of Inequality Under Uncertainty,’’ 75 Journal of Economic Theory 194–204. Bentham, J. 1825. A Treatise on Judicial Evidence. London: Paget. Broome, J. 1984a. ‘‘Uncertainty and Fairness,’’ 94 Economic Journal 624–32. ———. 1984b. ‘‘Selecting People Randomly,’’ 95 Ethics 38–55. Dekel, E. 1989. ‘‘Asset Demand Without the Independence Axiom,’’ 57 Econometrica 163–69. Diamond, P.A. 1967. ‘‘Cardinal Welfare, Individualistic Ethics, and Interpersonal Comparison of Utility: Comment,’’ 75 Journal of Political Economy 765–66. 74 The Journal of Law, Economics, & Organization, V21 N1 Dworkin, R. 1986. ‘‘Principle, Policy, Procedure,’’ in R. Dworkin: A Matter of Principle. Oxford: Oxford University Press. Epstein, L.G., and U. Segal. 1992. ‘‘Quadratic Social Welfare Functions,’’ 100 Journal of Political Economy 691–712. Fletcher, G. 2000. Rethinking Criminal Law. Oxford: Oxford University Press. Harsanyi, J.C. 1977. Rational Behavior and Bargaining Equilibrium in Games and Social Situa- tions. Cambridge: Cambridge University Press. Hornblower, S., and A. Spaworth. 1996. The Oxford Classical Dictionary. Oxford: Oxford Uni- versity Press. Huber, P.J. 1977. Robust Statistics Procedures. Society for Industrial and Applied Mathematics. Kamm, F.M. 1996: Morality, Mortality, vol. II. New York: Oxford University Press. Karni, E., and Z. Safra. 2002. ‘‘Individual Sense of Justice: A Utility Representation,’’ 70 Econ- ometrica 263–84. Machina, M. 2001. ‘‘Payoff Kinks in Preferences Over Lotteries,’’ 23 Journal of Risk and Un- certainty 207–60. Myerson, R. 1981. ‘‘Utilitarianism, Egalitarianism and the Timing Effect in Social Choice Prob- lems,’’ 49 Econometrica 883–97. Nozick, R. 1981. Philosophical Explanations. Cambridge, MA: Harvard University Press. Polinsky, M., and S. Shavell. 1979. ‘‘The Optimal Tradeoff Between the Probability and Magni- tude of Fines,’’ 69 American Economic Review 880–91. Posner, R. 2003. Economic Analysis of Law, 6th ed. New York. Aspen Law & Business. Roemer, J.E. 1996. Theories of Distributive Justice. Cambridge MA: Harvard University Press. Ross, S.A. 1981. ‘‘Some Stronger Measures of Risk Aversion in the Small and in the Large with Applications,’’ 49 Econometrica 621–38. Safra, Z., and U. Segal. 1998. ‘‘Constant Risk Aversion,’’ 83 Jornal of Economic Theory 19–42. ———. 2002. ‘‘On the Ecomomic Meaning of Machina’s Fréchet Differentiability Assumption,’’ 104 Journal of Economic Theory 450–61. Shavell, S. 1985. ‘‘Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent,’’ 85 Columbia Law Review 1232–62. Tosefta, 1977. Translated by J. Neusner. New York: Ktav. Wertheimer, A. 1977. ‘‘Punishing the Innocent Unintentionally,’’ 20 Inquiry 45. Williams, G. 1963. The Proof of Guilt: A Study of the English Criminal Trial, 3rd ed. London: Stevens. Ex-Post Egalitarianism 75 
work_ehotxdwno5fdjhsusmfrxvf6ym	----	Philosophica 52 (1993, 2) pp. 75-103 SOCIAL JUSTICE AND INDIVIDUAL ETHICS· Philippe Van Parijs It happened to me when bargaining over the price of a hammock on a Mexican beach, when checking my purse in my back pocket on a packed Italian bus and when running into a legless beggar on a Russian souvenir market. It happens to me every year when wondering whether I should report on my tax form the fees or royalties I earned abroad. It happens to me every week when chucking outunread yet another leaflet from yet another charity that caught my name on its mailing list. And it happens to me nearly every day when hearing one of my children ask for more, or nicer, or bigger than what (s)he has already been spoiled with. On all these occasions - and on countless others -, I hit upon the nagging, discomforting question of what, if anything, my professed beliefs about social justice entail for my personal conduct, of what constraints, if any, a person's conception of justice imposes on her personal ethics!, or of what it means to be ethically consistent across the political/individual boundary. In particular - I cannot help asking -, if one is committed - as I am - to some broadly "Rawlsian" conception of justice, is one not also necessarily committed to a broadly "Christian" personal ethics?2 More explicitly, if one believes that justice requires the maximinning of mate- rial conditions - however the latter are precisely defined, and possibly subject to the respect of self-ownership, fundamental liberties, or the like -, should one not use one's time and resources as well as one can in order to assist the poorest, the most vulnerable - subject, presumably, to not making oneself worse off than them in the process and also pos- sibly, again, to the respect of other people's fundamental liberties, self- ownership and the like? Or more succinct! y, does it make ethical sense to advocate maximin institutions while recoiling from maximin conduct? 76 PHILIPPE VAN PARIJS Can one consistently be a "Rawlsian" without also being a "Christian"? 1. Managerial dilemmas, utilitarian distinctions Those anxious to find reasons to support what I shall call the dichotomic view, i.e. a positive answer to this last question, may first appeal to the following sort of example, which suggests that if you are a Rawlsian, consistency does not only allow you not to be a Christian, but prevents you from being one. Consider the choice of a manager committed to a maximin conception of justice who has to sack one of her workers. Does her commitment to (a lexical version ot) maximin demand that she should sack, not her worst worker, for whom it is likely to be most difficult to find another job, but her best worker, for whom this is likely to be easiest? Or suppose she has to hire someone. Should she seek out the person who most needs the job and is likely to be the least employable, the least productive among the applicants? Surely, this inference from maximin at the macro-level to maximin at the micro-level is spurious, as the latter, when consistently practiced, is bound to undermine the former, by gravely impairing the economy's performance, and hence making the best material condition that can sustainably be granted to the worst off considerably worse than is necessary. Far from implying a maximin personal ethics, commitment to a maximin conception of social justice seems to rule it out. But one should not make too much of this sort of example. For all it does, in the present context, is warn against a naive interpretation of the policy implications of the maximin at both the political and the per- sonal level. If one can sufficiently trust the efficiency of the institutional framework, and especially of its redistributive component, it will general- ly be best, for the sake of the worst off in our society, if managers do not try, when hiring or firing, when buying or selling, and in any other professional circumstances, to benefit the worst off, but maximize instead their firms' expected profits. However, this does not exemplify a discrep- ancy between social justice and individual ethics. It simply reflects the fact that the behavioural rule which maximin-designed institutions should impose or which maximin-minded agents should follow in some specific role, need not be maximin itself. 3 In the same spirit, rule utilitarians are likely to recommend that judges take decisions in line with their convic- SOCIAL JUSTICE AND INDIVIDUAL ETHICS 77 tions about who is guilty, rather than on the basis of their conjectures about which decision would be best for aggregate welfare. What is shown by examples of this sort is not that maximin social justice rules out max- imin personal conduct, but that neither must be understood and imple- mented in too simplistic a fashion. Does the utilitarian tradition not provide a second, and more rele- vant, type of support to those who would like to cut the link from max- imin justice to maximin conduct? True, if you believe that some version of utilitarianism provides the correct answer to the question of how each individual ought to behave, then it is hard to see how you could deny that the same version of utilitarianism provides the criterion in terms of which alternative institutional setups are to be evaluated. If your individual ethics is utilitarian, how could your conception of justice be anything else? But it does not follow that it is impossible to be utilitarian on the social level - a just social framework is one that maximizes expected aggregate welfare -, while having, for example, a hedonistic life ideal. Indeed, this possibility seems emphatically asserted when utilitarians stress that the content of each person's welfare is "liberally" left entirely open or, even more perhaps, when they want to cleanse people's prefe- rences of any "other-regarding" element the latter may contain, in order to avoid the inappropriate discounting or multiple counting of some people's preferences.3 On reflection, however, all this can be reconciled with the claim that if we must try to maximize aggregate welfare in the choice of institutions, then we must also do so in our personal conduct. For suppose all mem- bers of society are committed utilitarians at both the individual and the social level. If utilitarianism, at both levels, is to avoid unwelcome biases and double counting, it will have to care equally for the satisfaction of every person's self-regarding preferences only: the filtering out of other- regarding preferences at both levels has nothing to do with the separation of the two levels. Moreover, the f~ct that people's self-regarding pref- erences, as aggregated by any unbiased utilitarian calculus, can be al- lowed to vary without limits shows that utilitarianism, at both the per- sonal and the social level, is in some sense "liberal" or "non-perfectionis- tic". It does not show that the ethical principle that defines appropriate personal conduct can consistently diverge from the one that defines appropriate institutional design, let alone that it must do so. Thus, despite some appearances, utilitarian distinctions have proved 78 PHILIPPE VAN PARUS no more able than our managerial dilemmas to support the strong claim that the principles of individual mora I behaviour cannot coincide with the principles of social justice. The dichotomic view, however, only makes the weaker claim that the former need not coincide with the latter. This view is forcefully expressed in John Rawls's recent writings. 2. Rawls's conception of a well-ordered society. According to Rawls's (1971, 453-4) original characterization, a well- ordered society is "a society in which everyone accepts and knows that the others accept the same principles of justice, and the basic institutions satisfy and are known to satisfy these principles". Hence, "its members have a strong and normally effective desire to act as the principles of justice require". In so far as the difference principle is concerned, the concrete meaning of this "normally effective desire" is vividly suggested in the connection Rawls (1971, 105) establishes earlier between this principle and "a natural meaning of fraternity": "Members of a family commonly do not wish to gain unless they can do so in ways that further the interests of the rest. Now wanting to act on the difference principle has precisely this consequence." Such formulations strongly support the view that in Rawls's ideal of a just society, maximin does not only shape the institutions, but also guides people's personal conduct. This is, however, the most fundamental point on which Rawls (1993a, xvi) has changed his position since the publication of his first book. In his more recent writings, he still defines a well-ordered society, the subject of "strict compliance theory", as a society in which "(nearly) everyone strictly complies with, and so abides by, the principles of justice" (Rawls 1990, §5.1). But he stresses that the account of the well- ordered society he offered in A Theory of Justice (TJ) was inconsistent. "The fact of a plurality of reasonable but incompatible comprehensive doctrines - the fact of reasonable pluralism - shows that, as used in TJ, the idea of a well-ordered society of justice as unfairness is unrealistic. This is because it is inconsistent with realizing its own principles under the best of foreseeable conditions." (Rawls 1993a, xvii). To understand this, one needs to see that, according. to TJ's account, "the members of any well-ordered society [ ... ] accept not only the same conception of justice but also the same comprehensive doctrine of which SOCIAL JUSTICE AND INDIVIDUAL ETHICS 79 that conception is a part, or from which it can be derived" (Rawls 1990, §55.4). But this "fails to take into account the condition of pluralism to which [Tf's] own principles lead" (ibid. §55.5). "Given the free institu- tions that conception itself enjoins, we can no longer assume that citizens generally, even if they accept justice as fairness [Le. Rawls's two prin- ciples of justice] as a political conception, also accept the particular comprehensive view to which it might seem in TJ to belong. We now assume citizens hold two distinct views; or perhaps better, their overall view has two parts: one part can be seen to be, or to coincide with, a political conception of justice; the other part is a (fully or partially) comprehensive doctrine to which the political conception is in some manner related." (ibid. §55.5) Whereas a comprehensive moral doctrine is "one that applies to all subjects and covers all values", a political conception "focuses on the political (in the form of the basic structure), -which is but a part of the domain of the moral" (ibid. §5.3). And it is precisely because commitment to the political doctrine does not entail commitment to the corresponding comprehensive doctrine that realizing the former can be "realistically utopian" (ibid. §5.1, my emphasis). "By contrast, a free democratic society well-ordered by any comprehensive doctrine, religious or secular, is surely utopian in the pejorative sense. Achieving it would in any case require the oppressive use of state power. This is as true of the liberalism of rightness as fairness [the comprehen- sive moral doctrine corresponding to justice as fairness], as it is of the Christianity of Aquinas and Luther." (ibid. §55.5) Does this new formulation of the ideal of a well-ordered society provide the dichotomists with the support they are looking for? Does it provide the resources required to resist the entailment from maximin justice to maximin conduct? Certainly not according to a lineage of critics who have accused Rawls of explicitly allowing a far wider range of inequalities than consistency with his own conception should permit. s For this criticism - which has been articulated most recently and systematic- ally by G.A. Cohen (1992a, 1992b) but goes back to Thomas Grey (1973, 316-25) in a leftish variant and to Jan Narveson (1976, 7-19) in a rightish variant - presupposes, as we shall see, that such a cut between the two parts of a citizens' overall morality cannot be made, and in particular that strict compliance with a maximin conception of justice must entail maximin conduct. Let us briefly examine the general structure of this line of criticism by focusing on the version offered by G.A. 80 PHILIPPE V AN PARIJS Cohen, before scrutinizing the threat it poses for the dichotomists' stance. 3. Cohen's egalitarian challenge Suppose that everyone is committed to a maximin conception of justice such as the one encapsulated in Rawls's (1971) difference principle. It is commonly believed and said, including by Rawls himself, that even in this sort of context inaximin will diverge from equality because the incentives created by income inequalities make it possible to give more to the worst off than the latter would get under strict equality. But why should that be the case ? If I am committed to maximin and could get more than others on the market because of the talents I possess, surely I shall not exploit this possibility and shall accept instead to do the same job for no more pay than the others, thus making it possible (say, through lower prices or higher transfers) to. maximize the real income of the worst off without any departure from equality. If everyone's behaviour con- forms to the difference principle, the latter will justify no such inequali- ties. Or, put differently, if you take seriously Rawls's idea that, in a just or well-ordered society, people are committed to the principles of justice that underlie the institutions, then maximin justice demands that incomes be equalized. This is the claim, in its simplest formulation. But there are two compelling reasons, both acknowledged by Cohen, why this proposition cannot possibly be sustained in this form. Firstly, income on its own does not provide an appropriate metric for a plausible interpretation of the difference principle. This is the case not only bec- ause restricting attention to income would lead one to neglect the other dimensions of socio-economic advantages explicitly mentioned in canon- ical formulations of the difference principle (wealth, powers and preroga- tives, the social bases of self-respect), but also, more relevantly, because it would lead one to neglect the unequal distribution of the length and irksomeness of labour. It is in no way inconsistent with a commitment to the difference principle, plausibly interpreted, to say : "I claim more income than others, but no more than what is required to match the burden of doing. more hours of work or a more strenuous job" or "I accept less income than others, but on condition that my work load is correspondingly decreased, using some meaningful metric for measuring burdens". Asking whether the difference principle justifies incentive- SOCIAL JUSTICE AND INDIVIDUAL ETHICS 81 providing inequalities amounts to asking whether it justifies rewards that go beyond the sheer compensation of arduous work, which can be con- strued as equalizing unequal situations. Cohen's (l992a, 296-7; 1992b, section 4) claim is that there is no justification for payments to talented people that go beyond this compensation and thereby constitute genuine inequalities. The many philosophers who have pondered at length about the fortunes of basketball player Wilt Chamberlain and his younger brother hockey player Wayne Gretsky will need little convincing to believe that such inequalities can still be very considerable. Secondly, some inequalities may be needed to make it possible (as opposed to attractive) for the talented to perform the job at which they would be socially most useful. I think I can remember, for example, that during the week preceding the Oxford-Cambridge rowing contest, the Oxford University rowing team was hosted by its captain's college and given lavish meals, in order to enable them (not motivate them) to win a victory that would bring great pride to all Oxonians. Similarly, a stressed manager's expensive holidays are arguably needed to enable her and her family to live the sort of life they have to live without going crazy. In such cases, genuine inequality (beyond sheer compensation for doing the job: both the rowers and the manager may actually enjoy it) may be justified, though not justified qua subjective incentives. To use Cohen's (l992a, 311; 1992b, section 8) formulations, such inequalities are "strictly necessary", "necessary apart from human choice", "neces- sary apart from people's chosen intentions", they reflect "purely objective feasibility sets". Their point is to enable, not to stimulate. Such genuine inequalities, Cohen (1992b, section 4) concedes, are consistent with everyone being committed to the difference principle, but he ascribes them to "special circumstances" and distinguishes them from the "normal case", in which inequalities work as incentives. 4. Subjective compensation,' or the convergence o/maximin, equal- ity and self-interest. What matters to us here, however, is not the empirical question of how much ineqUality would still find room in Rawls's well-ordered society in the event that Cohen's claim (appropriately qualified) proves valid, but whether the latter is indeed valid. In a society whose institutions are 82 PHILIPPE VAN PARIJS shaped by the difference principle and whose members are committed to it, are the only legitimate inequalities those that are required to compen- sate for special burdens or to generate worthwhile capacities? In other words, do incentive payments have no place in a just society? To get a better grip on this question, let us try to imagine the func- tioning of a society that is not only equipped with institutions governed by the difference principle, but also consists in people committed to the latter. Should one, for example, require these people to find out how hard they would work spontaneously in the absence of institutions designed to maximally favour the worst off and then to work just as hard despite the redistributive mechanisms (a rather problematic and underspecified coun- terfactl,lal exercise)? Or should one require them to be constantly on the look out for the worst off in order to display their generosity? There seems to be a far simpler approach which asks the members of such a well-ordered society no more than a willing and honest participation in the working of appropriately designed institutions. Leaving out, for the sake of simplicity, the possibility of enabling inequalities, one particularly convenient construal of these institutions goes like this. 6 First, select at random some no-work-some-income option common to all the members of the society concerned, and call it the zero option. Next, ask each person what her reservation wage would be for each occupation (defined by type and length of labour) she could do, and accordingly draw 'her fair compensation curves, which specify, for each type of labour, the (possibly negative) level of pay required to make that person indifferent between various lengths of labour time and the zero option. Next, determine each person's productivity for each such oc- cupation. Finally, require people to choose occupations in such a way that the social surplus is maximized. The social surplus is here understood as the difference between the aggregate social product (net of capital used up) and the aggregate compensation of those who have contributed to it, as determined by the reservation wages just mentioned. This social sur- plus is to be distributed equally to all members of the society concerned, thus providing the common zero option. There is of course no reason why the fair compensation curves associated to any particular zero option picked at random should lead to socially optimal assignments that will generate a social surplus per head that matches exactly ,.the chosen zero option. The associated social surplus may fall short of or exceed what is needed to fund this option. The level of income that defines the latter is SOCIAL JUSTICE AND INDIVIDUAL ETHICS 83 appropriately chosen when the funds required to finance it exactly match the social surplus generated as a result of people taking up their socially optimal assignment among those they regard as equivalent to the zero option. Within this institutional framework, people's commitment to the difference principle simply requires them (1) to reveal the true pattern of their reservation wages and productivity patterns, so that their fair com- pensation curves can be worked out and their socially optimal assignment determined; and (2) to willingly accept the latter, as characterized by a particular type and length of labour. Before turning to the problems the scheme poses, let us note that it painlessly combines maximin, equality and free choice of occupation within each person's legitimate choice set made up of all subjectively equivalent occupations (with appropriate compensatory payments). It even seems able to generate, with choice sets thus shaped, a smooth conver- gence between commitment to justice and self-interest, the latter nega- tively defined as whatever, among the things a person cares about, does not reduce to or derive from a commitment to justice. For it suffices to increase very slightly (say, by €) the payment associated with the socially optimal option, for each person to choose out of self-interest the occupa- tion which will most contribute to the situation of the worst off, i.e. of everyone, since everyone enjoys a situation equivalent (in her own eyes, and forgetting about the €'s) to the zero option. Consequently, this picture of the implied institutional framework seems to fully substantiate Cohen's defensive insistence that he "do[es] not aim to impugn the integrity of a conception of justice which allows the agent a certain self-regarding prerogative" (Cohen 1992a, 314), and that "it is not true that, in the society [he has] in mind, a person would have to worry about unfortunate people every time he made an economic decision" (ibid. 316). Moreover, the basic setup just sketched can easily be extended from the choice of occupation to the choice of levels of effort within an oc- cupation. Material incentives, and hence inequalities, are not only said to be required to induce the talented to choose occupations which put their talents to productive use. Under the standard version of the so-called efficiency-wage approach to unemployment, for example, the effort is assumed to be a positive function of the wage rate because the higher the latter, the greater the fear of being dismissed. If the employer gave the worker no more than the latter's reservation wage, the worker would be indifferent between working and being sacked, and hence would not put 84 PHILIPPE VAN PARIJS as mU'ch effort in her work. But here again, if workers are committed to the difference principle, they ~ould reveal truthfully what levels of pay would exactly compensate them for various levels of effort. They could then be told not only what job to do, but also what level of effort to muster (which would not be the maximum feasible one, given the need for compensation), and they would comply, without thereby sacrificing themselves, since they would not be worse off (and could even be made better off by E) than 0 at lower levels of effort. Furthermore, the same framework can conceivably be extended from working to saving, i.e. to an area which Cohen does not consider but which is no less concerned by claims about the need for incentives. Given some common no-work, no-saving, some-income option, we could then (1) construct for each person the set of combinations of (financially compensated) work and (financially compensated) saving that are equivalent, using her own preferences, to this option, and (2) ask each person (possibly with an E signal) to select from this legitimate choice set the combination of work and saving behaviour that maximizes the sus- tainable social surplus. Whether in its simpler or in its more complex variant, one striking feature of this egalitarian institutional framework is that it does not re- quire any sacrifice of people's self-interest in addition to the truthful provision of the information the working of the institutions requires. The situation of the worst off will be maximized without any incentive pay- ment (apart from the negligible E'S), just as a result of people pursuing their self-interest within the choice set designed for each of them by the institutional framework. The proposal, however, also raises a number of difficulties, at least one of which I believe to be decisive. One essential feature of the proposed institutional setup is that the same type and amount of work (or the same type and amount of saving) will have to be rewarded differently depending on who performs it: the more distaste a person has for contributing to social production in a certain way, the higher the rate at which she will have to be compensated, at least if her contribution is worth having at that rate. Clearly, this feature makes the institutional scheme practically un- workable: each worker or saver would need to face a personalized, preference-specific set of wage and interest rates. But at the level of abstraction the present exercise is being conducted, this can hardly count as a decisive defect. More seriously, in order to determine the appropri- SOCIAL JUSTICE AND INDIVIDUAL ETHICS 85 ate differentiation of payments, one needs information that is entirely private: since the self-interest reflected in the fair compensation curves is not definitionally equivalent to the preference schedule that guides a person's choices, there is no way of checking the truth of a person's statements about her reservation wage or interest payments. And this arguably violates the publicity requirement which Rawls and others want any just institutional setup to meet. But above all, the key feature singled out above makes the scheme most questionable as an adequate expression of the egalitarian ideal. For although every person's situation will be, in her own eyes, equivalent to (or, taking the €'S into account, no worse than) some common baseline situation (the zero option), some people may end up in an objective situation that is far worse, in everyone's eyes, than some others, simply owing to their having more accommodating preferen- ces. Suppose, for example, that you and I can do only the same one job and that, whatever the number of working hours, I resent doing the job more than you do. Consequently, for any given number of hours, the criterion of fair compensation will require paying me more than you. (Surplus maximization may, but need not, ask you to perform more hours than me.) And my assignment (with the associated compensation) is then most likely to be universally preferred to yours. A setup that ends up giving me a universally preferred job because of my being fussier than you - or, to put it differently, because of my having, relative to you, an expensive taste for leisure - is not very credible as an adequate expres- sion of the egalitarian ideal. 5. Objective compensation; or maximin, equality and self-interest at odds Cohen (1992a, 296; 1992b, section 4) is not very explicit about the notion of "special burden" which allows higher remuneration to work as a "counterbalancing equalizer" "where work is specially arduous, or stressful". But the most plausible ways of spelling out the institutional framework called forth by his egalitarian ideal do not rest - if the ar- guments just stated are cogent, fortunately so - on a subjective notion of fair compensation, as does the proposal examined above. Along with Baker (1992, 109-10), he might rather be taken to assume that some objective, individually undifferentiated notion of burden can be used to play the role ascribed above to the subjective, person-specific disutility 86 PHILIPPE VAN PARIJS of working or saving. The formal structure sketched above then remains relevant: (1) for each level of the zero option, each type of activity and each individual, one draws a fair compensation curve - a set of work-income combina- tions equivalent to the zero option - which indicates the remuneration needed to cover the ~pecial burden incorporated in a certain number of hours of that activity; (2) among these equivalent combinations, people are asked to select the one that maximizes the social surplus (to be dis- tributed equally to all and thereby provide the income entering the zero option); and (3) the zero option is pitched at the highest sustainable level consistent with this process. But b~cause of the objective interpretation of the notion of burden, the implementation of this framework no longer raises the same problems of untractability and lack of publicity - there are no longer different rates of pay depending on some features of a person which only that person can know -, nor the same objection of ~nfairness - the work-shy no longer get a premium. But while solving these difficulties, the shift to an objective notion of burden creates another problem, of central importance, as we shall see, for the question of the relationship between maximin justice and in- dividual ethics. For one can now no longer bank on a guaranteed har- mony between the maximal improvement of the situation of the worst off and self-interested choice within the choice sets shaped by egalitarian institutions. Obviously, the various occupations (cum compensation) deemed equivalent by virtue of the objective notion of burden are no longer automatically equivalent according to the agents' preferences. Consequently, it can no longer be taken for granted that picking the surplus-maximizing element in the choice set drawn by the egalitarian institutions will involve no substantial cost, relative to other options in that set, in terms of the person's self-interest. The level of fair compen- sation associated to various occupations by this objective assessment will in general exceed for some people what is needed to match the disutility incurred, while falling short of it for some other people. Given the choice, the latter's self-interest may therefore strongly favour the zero option over the zero-option-objectively-equivalent occupation (for short, ZOE) which surplus maximization would recommend, and this time, therefore, an insignificant e would be incapable of reconciling maximin and self-interest by steering people's self-interested choices in the socially optimal direction. Note, moreover, that this tradeoff would not only arise SOCIAL JUSTICE AND INDIVIDUAL ETHICS 87 for those who would be undercompensated, relative to the disutility incurred, if they were assigned to their surplus-maximizing ZOE, but also for those who would then get exactly the right compensation or be over- compensated, as overcompensation may be even greater for some other, non-surplus-maximizing ZOE. This may seem to point to an unbridgeable conflict between equality, maximin and free occupational choice. If you let people free to choose their occupation, there is no reason to expect that people's choices in their egalitarian choice sets will select the surplus-maximizing option, and maximin will therefore generally diverge from equality. For example, choice-respecting egalitarian institutions seem bound to make you lose the services of an exceptionally gifted manager whose tastes are such that she would be subjectively undercompensated at the rate of pay that matches the objectively assessed burden of a managerial job. Given the choice, she may choose to do no work at all or opt for another, more relaxed oc- cupation (say, being a sculptor) whose objective burden, and hence pay, have been assessed at a lower level but for which she has a far greater liking, so that the lower pay is more than offset by the reduced stress, or by the greater intrinsic pleasure she derives from the job, or by the importance she attaches to her children and spouse no longer having to suffer her being away at unsuitable times. As a result of occupational choice being guided by this preference, exceptional managerial skills are left unused, and both the social surplus and the situation of the worst off remain at a lower level than would have been the case if the absence of free occupational choice had made it possible to effectively assign the sculptor to the manager job instead. However, formulating the conflict as one between maximin equality and freedom of occupation begs the central question of this article. For if commitment to the difference principle (whether constrained by free- dom of choice or unconstrained) implies accepting the surplus-maximizing assignment, then there is no conflict, in a well-ordered society, between maximin equality and free occupational choice, nor any reason to expect freely choosing but appropriately committed individuals to prevent e- quality from achieving the maximin. What the example of our manager- ially gifted sculptor illustrates is rather the possibility of a sharp conflict between maximin equality and self-interest, even when the choice is restricted to objectively equivalent options. Realizing this possibility forces us to ask the following question: 88 PHILIPPE V AN P ARIJS Does the ideal of a just society involve that people should always sacri- fice their self-interest to their commitment to the difference principle, by accepting the surplus-maximizIng assignment, however much they would (self-interestedly) prefer another, objectively equivalent occupation? Under the subjective compensation interpretation of equality, the question did not arise. But under the objective compensation interpretation, unless there is a close fit, not just an (uncontroversial) positive correlation, between what people like and what they are good at, it can take a very acute and worrying form. For what people need, if they are to sacrifice their self-interested .preferences, is not just a strong commitment to the difference principle, but also a full trust in the way in which the objective burden of the various occupations is being assessed. This puts a lot. of weight on the possibility of working out a meaning- ful objective notion of burden. While it is clear that the latter should not be person-specific, it is also clear that it cannot be completely discon- nected from the disutility incurred by the people performing the activity concerned. If everyone prefers doing' A to doing B, one cannot sensibly associate a heavier objective burden, and hence a higher level of fair compensation, to the doing of A. But how is this burden to be defined? Perhaps as average disutility, the latter being measured by the reservation wage with the zero option as the only alternative option? But what is the relevant sample? The whole of the active population of the society con- cerned? Only those among them who have the skills required to do the job? Only those among them who know what they are talking about, because they have had an opportunity to try the job? And what if some would not do the job whatever the wage, thus making the job's average disutility infinite? If simple (or more sophisticated) averaging is no good, perhaps we could appeal to some democratic procedure. But even h~aving aside the fact that any workable democratic procedure would involve delegating the assessment to an appropriate group of experts, which would take us back to square one, what would be the credentials of majority rule on the presumably factual issue of how burdensome a particular activity is? I am not claiming that these few remarks make total nonsense of the notion of objective burden. But they suffice to show, I believe, that any such notion is bound to remain conceptually problematic. Consequently, one could never feel on firm ground when turning down the complaint of someone who believes to be unfairly treated, i.e. considers herself unjus- SOCIAL JUSTICE AND INDIVIDUAL ETHICS 89 tifiably made worse off than others in terms of income-burden bundles, as a result of being asked to accept, out of commitment to the difference principle, her surplus-maximizing ZOE. This does not force us to aban- don the whole approach. But it seems hard to escape the need to protect oneself against serious injustices by providing every worker with the fol- lowing sort of safeguard: apart from her surplus-maximizing option, she can also choose, if she prefers, the common zero option to which the latter is supposed to be objectively equivalent. This seems to be, given the specific interpretation of the egalitarian institutional framework adopted here, a natural way of interpreting Cohen's concession to Scheffler that "every person has a right to pursue self-interest to some reasonable extent" (1992a, 302) or his emphatic refusal "to impugn the integrity of a conception of justice which allows an agent a certain self-regarding prerogative" (1992a, 314). One could of course think of more restrictive or complicated ways of making some room for the pursuit of self-interest. For example, one could exempt a worker from her socially optimal assignment only if the cost to her of accepting it would be great, and the benefit to society rather small. Or one could imagine that each person would be allowed to pick from a subset of ZOE's involving some contribution on her part rather than to go for the zero option. But apart from its simplicity, the safeguard has the great advantage of meeting what would seem to be a minimum con- dition of any fair scheme of work compensation, namely that it should make sure that no worker ends up worse off than if she had been left to do nothing. Even those who feel inclined towards more subtle or guarded ways of making some .room for self-interest should therefore find it worthwhile exploring what follows from introducing the safeguard. 6. Why incentive payments can be just after all But here comes the crux. For once such a safeguard is introduced (ar- guably as a minimalist way of spelling out Cohen's concession), there is no longer any reason to believe that, in a well-ordered society of suitably committed people (and abstracting, as usual, from enabling inequalities), maximin will necessarily coincide with equality, nor therefore that incen- tive payments should be ruled out. Once people are left the choice bet- ween their socially optimal occupation and the zero option, the (largest 90 PHILIPPE V AN P ARIJS sustainable) social surplus and hence the zero option will obviously be smaller than if their choice had been restricted to the former. One way of weakening this negative effect consists in assigning to each worker who would otherwise choose the zero option the socially most beneficial among the ZOE's not blocked by the safeguard. This is no doubt better as far as maximin is concerned, while still being perfectly egalitarian according to the objective metric. But there is better still. 'It may be possible, consistently with the safeguard, to generate a higher social surplus if people are not only given access to some suboptimal ZOE's, but also to some supra-ZOE's, to some options that are superior to the zero option according to the objective metric. Paying more than the objectively fair compensation may make a productive worker relinquish the zero option in favour of an occupation that will contribute more to the surplus than any of her safeguard-proof ZOE's, despite the additional compensation required. In the case of the exceptionally gifted but not very keen manager referred to above, for example, it may be better, as far as maximin is concerned, to ask her to be a sculptor rather than remain idle. But it may be even better to provide her with a wage sufficiently high to make her prefer being a manager to doing nothing. For if this higher wage still allows the manager's net contribution to the social surplus to be greater than it would have been with the best ZOE occupation she would have accepted, then, assuming the other workers' compensation is unaffected, social surplus maximization, and hence maximin, will deviate from (bu- rden-sensitive) equality. Ignoring this potential by sticking to payments that do not exceed the assessed objective burden, in other words, amounts to keeping the social surplus, and hence the situation of the worst off, lower than it could be. Maximin no longer necessarily coincides with equality once a person's commitment to the difference principle is no longer interpreted as entailing the lexical priority of accepting her sur- plus-maximizing ZOE over all the other moral and non-moral considera- tions that make up her self-interest. Once this is admitted, incentives of the standard type are not much further down the road. For what has been said so far supposes that one can identify the gifted but reluctant workers and award them the premium required to make them self-interestedly prefer their optimal assignment to the zero option. This supposes in turn that different people may receive different incomes for the same job, depending on the nature of their SOCIAL JUSTICE AND INDIVIDUAL ETHICS 91 preferences. This does not take us completely back to the subjective compensation scheme and to the expensive-taste difficulty which proved fatal to it. For paying the fussy more than the keen is now no longer an embarrassing component of the egalitarian ideal, but a by-product of the pursuit of maximin in a context in which self-regarding considerations are allowed to play some role. Nonetheless, this person-specific compensation scheme raises the other difficulties mentioned in connection with the subjective compensation scheme, notably those grounded in its reliance on essentially private information, and this can reasonably be deemed sufficient to discard it. The alternative consists in conceding the supra-ZOE pay, not only to the reluctant managers, but to anyone else doing the same job. While increasing the net contribution of the reluctant manager, the introduction of the premium now also reduces the net contribution of her no less productive but keener fellow managers. This will no doubt make the labour allocator very cautious about awarding any significant premium. It will also further complicate her job, for what was socially optimal for a person to do if she were paid no more than the objectively fair compen- sation may no longer be socially optimal once she is paid an extra pre- mium. So, instead of adding this further headache to a job that was already unmanageable anyway, the labour allocator may wisely decide to give over to a sufficiently competitive and self-interest-guided labour market the task of allocating people to jobs and determining their gross incomes, while converting herself into a tax collector. The social surplus is then being maximized, not through the filling of jobs and the fixing of wages, but through the sustainable-yield-maximizing taxation of every type of job, taking both supply and demand reactions into account, and the equal distribution of this yield. The two approaches are not quite equivalent. For example, whereas the central allocation method described allows only upward deviations from the ZOE baseline, nothing prevents in principle taxation from turning some jobs which a sufficient number of appropriately skilled workers are keen to do into infra-ZOE's, i.e. occupations paid less than is justified by the objective assessment of the associated burden. Indeed, in the taxation approach, the very notion of objective burden has become superfluous. But I very much doubt this makes any significant difference. Let us bear in mind, in particular, that the equal and unconditional distri- bution of the surplus guarantees that no worker will be worse off while 92 PHILIPPE VAN PARIJS working than under the zero option. Let us also bear in mind that scarce talents may command large gross incomes as potential employers compete to hire them, but that yield-maximizing taxation should manage to extract the bulk of this factor rent. How much the resulting income distribution would diverge from objective-burden-sensitive equality is of course a question that can only be settled on an empirical basis. But on the plau- sible assumption that there cannot be that many people who particularly hate doing what they are particularly good at, one can safely conjecture that the income inequalities that would survive yield-maximizing taxation will not be far greater nor far different from those implied by any sen- sible notion of fair compensation. In this light, it remains quite possible - indeed, if the facts are not wildly different from what I think they are, extremely plausible - that "a modest right of self-interest [of the sort acknowledged above] seems insufficient to justify the range of inequality, the extremes of wealth and poverty, that actuall y obtain in [contemporary Britain]" (Cohen 1992a, 302-3). But is the range of inequality thus justified any narrower than the range of inequality allowed by the conventional interpretation of the difference principle? Cohen's concession, as elaborated above step by step, seems to lead to legitimizing all incentive payments that boost the social surplus, and hence the situation of the worst off. Does this mean that people's commitment to the difference principle, once softened by the safeguard, has no impact whatever on legitimate inequalities? Not quite. To start with, in the institutional context sketched above, each person committed to the difference principle can be expected to report truthfully her gainful activities and pay honestly whatever tax rates the surplus- maximizing institutions attach to the pay and perks these activities give access to. Being able to bank on this sort of behaviour will enable a well- ordered society to collect and distribute a higher social surplus than would be the case in a society whose members are not so committed. Even in such a society, higher tax rates will induce, owing to the safe- guard, lower levels of performance. But they will not widen the gap between actual and reported activities. Thus, safeguard-checked commit- ment demands that people should not cheat. It also demands that they should not use their bargaining power, especially their collective bar- gaining power as exercised in strikes and similar actions, in order to resist tax pressure more than they would do by adjusting parametrically to the tax structure, i.e. by simply reducing individually their supply of SOCIAL JUSTICE AND INDIVIDUAL ETHICS 93 labour or capital as the tax rate increases. In a well-ordered society, the availability of the highest zero option that can be made available to all provides the legitimate safeguard. Free collective bargaining, or an unrestricted right to strike, cannot be part of the picture. In other words, it is not enough not to cheat the institutions, it is equally important not to bend them.s These are two important features of economic behaviour, whether individual or collective, that follow from a commitment to maximin justice, understood as willing compliance with institutions that aim to maximize the situation of the worst off. But among the choices left open by such institutions and the two constraints on individual behaviour just mentioned, people can and should be left free to pursue their self-interest - broadly understood, remember, as anything that does not reduce to or derive from a concern with achieving justice as characterized, including for example visiting an old aunt or supporting Greenpeace's action in the Antarctic. And if this is conceded, it follows, along the path followed above, that incentive payments - the rewarding of talents over and above what is needed to compensate the objective burden associated to their productive use (and to make the latter possible) - are legitimate in some quite plausible circumstances, namely in those circumstances in which the sustainable social surplus would be smaller without them, owing to the room granted to self-interest-guided choice. There will of course be people who will book a substantial "produ- cer's surplus", i.e. enjoy the benefit of a large difference between their actual pay and their reservation pay, as a result of such incentive pay- ments being allowed. But this also happens if the pay matches exactly the assessed burden, as soon as the latter is not defined in terms of person- specific disutility. More seriously, even with perfectly enforced maximin institutions, skills inequalities and/or various obstacles to the clearing of the labour market may well generate situations of dominance, i.e. of unanimous strict preference for one job situation over another or over the zero option. There is no question that these would be genuine inequali- ties. But once the concern to maximize the objectively worst income- burden bundle is constrained, as a way of making room for legitimate self-regarding considerations, by the possibility of choosing the zero option (or other, socially superior alternatives), then such inequalities are justified. Under perfectly operating maximin institutions, some job situa- tions may be superior to others in everyone's eyes. But any attempt to tax 94 PHILIPPE VAN PARIJS away such universally recognized advantages necessarily leads to a smaller redistributable surplus, as a result of some of the people taxed more heavily legitimately shifting to occupations that yield smaller net contributions to this surplus. 7. Why most incentive payments are nonetheless unjust, or the unexpected alliance of justice and patriotism Even on Cohen's premises, it thus turns out, some genuine incentive payments are justified. But my guess is that the inequalities so justified are of such a modest scope that not only Rawls but also Cohen would feel quite comfortable about condoning them. If this is the case, the apparent clash between left liberalism and radical egalitarianism has melted away. And since there is no point in insisting stubbornly on differences that vanish under scrutiny, radical egalitarians would simply have to shelve their interesting but misguided challenge and rally behind the left liberal flag. Or at least so they would have to do if one could reason, as we have done so far, within the boundaries of a closed economy. But once this assumption is lifted, the picture becomes very different indeed. We are then led to considerations that rescue the importance of Cohen's chal- lenge, but also have some other, rather puzzling implications. Let me briefly sketch these considerations and return, by the same token, to our initial question about the implications. of a maximin theory of justice for individual ethics. Suppose first that people can legitimately leave the country with their skills and other assets, if this is what their self-interest tells them to do. The agents' legitimate choice sets are then no longer basically shaped by the fact that the zero option should be available to all and that institutions should maximin people's situations, bearing this safeguard in mind. If agents have the option of supplying their labour and capital abroad and if the country concerned can attract precious factors from the outside world, then, whether or not the other countries each have their own maximin institutions, the situation is deeply altered. For the condition that needs to be met if a person is to choose her socially preferred occupation is no longer that she should regard it as preferable to the zero option (and other ZOE's), but that she should regard it as preferable to the most attractive option abroad. How attractive this possibilityis to the person SOCIAL JUSTICE AND INDIVIDUAL ETHICS 95 concerned obviously depends on the subjective cost of supplying abroad the factors one owns and on the prices these factors command in other countries, which will in turn depend both on the overall level of develop- ment of these countries and on their distributive institutions. Clearly, under such circumstances, just as in the actual world, the owners of potentially mobile and widely valued factors of production will be able to earn, even without any cheating or bending, far higher returns than in the world assumed so far. For the tax elasticity of the supply of these factors (essentially capital and highly skilled labour) tends to be very high, i.e. the amounts of these factors which a country can hope to retain or attract tends to be highly responsive to increases or decreases in their post-tax returns, and the maximin criterion will therefore lead to selecting very low, though yield-maximizing, tax rates. But is this picture consistent with the assumption that all members of the society concerned are committed to the difference principle? In other words, must disloyalty to one's country be assimilated to cheating or bending, and hence ruled out, or rather to choosing the zero option, and hence. legitimized by some variant of our safeguard? There is a strong prima facie case in favour of the first answer. If commitment to the difference principle implies that people will not want to cheat by con- cealing some of their gains in their home country, while still conceivably making a very sizeable contribution to the situation of the worst off in their country through the taxes they payor the employment they create, then surely commitment to the difference principle must also rule out that people may care so little about their countrymen that they may want to send their capital abroad or to move out altogether with their productive talents in a way that avoids maximin taxation in their home country. In other words, if one is committed to contributing as much as possible to improving the situation of the worst off in one's society, one must a fortiori be committed to sticking with this society - not whatever hap- pens perhaps, but as long as the soc.iety's institutions remain just. This argument, however, cannot be right. For if it were, then it would be even less legitimate to opt for the zero option. At least those who choose to leave the country altogether are not sucking the social surplus. So, if commitment to the difference principle makes it bad to quit, it must make it even worse to get a free ride or, more gener all y, to get a share in the surplus that exceeds the productive contribution one chooses to make. Or conversel y, if a safeguard I egitimatel y protects the 96 PHILIPPE VAN PARIJS desire I may have to surf rather than work, should it not also allow me to move abroad, at a lesser cost to my society, because I fell in love with a foreign culture, a foreign landscape or a foreign woman? The argument, however, can be rephrased in a way that is not vul- nerable to this objection. Let us look at the issue from the standpoint of the original position: we do not know what conception of the good life we shall have nor what talents we shall be endowed with, but we do know which society we belong to. In order to keep our life options open both at home and abroad, we shall certainly not commit ourselves to contributing to the surplus as much as we can. But in order to give ourselves the firmest possible real basis for making any choice we may want to make in case we turn out to have the poorest endowment, we shall not only choose to introduce maximin institutions but also commit ourselves to not cheating nor bending them. These institutions will have to involve the yield-maximizing taxation of incomes earned abroad as well as at home, and the matching individual duties will have to require the truthful reporting of foreign no less than of domes tic earnings. Nothing said so far requires that the members of a well-ordered society be subjected to a special duty of patriotism. For the duty not to cheat, and in particular to honestly report any foreign income, seems sufficient to check the downward pressure on the social surplus that would otherwise result from actual or potential international factor mobil- ity. This ignores, however, the crucial question of what defines, for redistribution purposes, membership in the society concerned. Whether it is permanent residence or formal citizenship, it is clear that the duty not to cheat offers only very poor protection against the pressure of international mobility if membership can easily be changed. If the institu- tions were to prohibit emigration (whether interpreted as a change of permanent residence or of citizenship status), the duty not to cheat would encompass the duty not to emigrate and the problem would disappear. But such an institutional prohibition would clearly violate what Rawls and many others would count among people's fundamental liberties. And so would, presumably, the imposition of prohibitive costs on prospective emigrants, such as the reimbursement of educational expenses, or of the present value of their skills, to the society they are leaving. This is why a special duty of patriotism needs to enter the picture. Such a duty does not need to require that one should never use the insti- tutionally guaranteed right to emigrate. What it must require is rather that SOCIAL JUSTICE AND INDIVIDUAL ETHICS 97 one should not emigrate for the wrong reason, i.e. modify one's resi- dence or citizenship status in order to enjoy a more favourable tax treat- ment. What generates strong constraints on the effective operation of an open economy's maximin institutions in a large world is not that its members may want to relinquish their membership because they fell in love with foreign people or foreign landscapes, but only that they may want to do so because of their interest in maximizing their post-tax in- comes. If they endorse maximin institutions, it would be inconsistent for the best endowed members of a society not only to consider cheating but also to consider escaping in response to high taxation. For the conse- quence would be that the objective of the maximin institutions would be defeated: precious little could be collected for redistribution to the worst off, both because of actual cheating or escaping and even more because of credible threats to cheat or escape. Knowing which society they belong to, people in the original position will protect themselves against this risk by committing themselves to behaving not only honestly but also patriot- ically, in the restricted sense of refusing to consider relinquishing mem- bership in their society for the wrong sort of reason. If the society's members can be relied on not only to refrain from cheating (and bending), but also to refrain from moving out in search of higher returns, then the constraints on the society's attempt to make its worst off members as well off as possible are greatly loosened, and the size of the incentive payments that will sustainably maximize the situation of the worst off will be far smaller than if tax rates had to keep subjecting themselves to the ruthless discipline of a highly responsive world finan- cial market or of an ipcreasingly integrated international market for skilled labour. Of course, how great a loss can be avoided in this way will greatly vary as a function of the size of the territory controlled by the relevant tax authority, of the society's relative prosperity, of the distinctness of its language and culture, of the charm of its climate and countryside, and of many other factors. But the very modest extent to which people actually alter their place of residence or their citizenship in order to avoid taxes· should not make us underestimate the impact of potential emigration on the current and, even more, the future shape and size of redistributive policies. The growing asymmetry between the taxation of capital and labour income and the erosion of the progres- siveness of income taxation in several countries can plausibly be inter- preted as two clear signs of growing pressures in an ever more open - 98 PHILIPPE V AN P ARIJS and unpatriotic - world. One implication of this argument, if it is correct, is that - after all - Cohen is right and Rawls is wrong on the issue of whether (the bulk of) surplus-enhancing incentive payments are justified, or at least that Rawls would be wrong if what he had in mind was an open economy in a large world of the sort we live in. In a hypothetical closed economy, whatever incentive payments would be paid to self-interest-guided econo- mic agents under maximin institutions can be justified, because maximin requires them, despite"a universal commitment to the difference principle, as soon as self-regarding considerations are allowed to guide people's choice with the zero option as a common baseline. In an open economy, this would not be the case. Some part, and probably by far the greatest part, of the incentive payments paid to self-interest-guided economic agents under maximin institutions would then remain unjustified, because they would only be needed as a consequence of the widespread adoption of an attitude that is inconsistent with a commitment to the difference principle. 8. Rawlsians: not Christians but patriots? What constraints, if any, does a commitment to maximin justice impose on one's individual ethics? The (very partial) answer we are ending up with can be summed up as follows. Once maximin institutions are in plage, commitment to maximin does entail a duty not to cheat or bend these institutions, and strict compliance with this duty will enable the maximin to be far more egalitarian than it would otherwise be. But it does not entail a moral duty to help those poorer than oneself. It "is not inconsistent with such a duty, but performance of the latter would be a expression of love, charity or caring, not an implication of a commitment to maximin justice, as we have come to interpret it. In a well-ordered society, being committed to the difference principle does not force us to find it despicable or objectionable to spend much of one's time and money collecting Indian totems or supporting the local soccer team, at the expense of doing everything within one's power to improve the situation of the worst off, providing of course the time and money thus used do not exceed what we get allotted by maximin institutions. To be honest, this negative conclusion is not particularly relevant to SOCIAL JUSTICE AND INDIVIDUAL ETHICS 99 the moral choices we face in our daily lives, such as, those mentioned in the first few sentences of this article. For we undoubtedly live in a badly ill-ordered society, and this leads to a different set of questions. In such circumstances, could we, for example, allow ourselves to be less honest, less cooperative, less patriotic than we would need to be in a well-ordered society, whether because the institutions are not to be trusted to generate, collect and distribute the social surplus in an efficient way, or because others do not do what the institutions expect them to do? Or should we rather be more demanding on ourselves, for example because it is up to us, in our private conduct, to do part of what the institutions of a well- ordered society would do, and because it is also up to us, in our political conduct, to fight e~ergeticall y for a juster institutional setup? I am not sure what overarching criterion could be applied in this balancing exer- cise, and there is little in the arguments of this article that may be helpful on this issue. My hunch, however, is that the second set of considerations is bound to weigh far more heavily, at any rate for all those (probably you and certainly me among them) who are better off than they would be in a just society. One cannot consistently claim to be committed to a maximin conception of justice and complacently enjoy privileges one can only be granted because the institutional setup violates this conception. Even if Rawlsians need not be Christians in a well-ordered society, they may well, after all, have to be (something like) Christians in the real world. Even in a hypothetical well-ordered society, however, it is not enough for Rawlsians to refrain from cheating their maximin institutions and from using their bargaining power in order to force redistribution down. They may not have to be Christians, but they will have to be patriots, in the limited sense of refusing to pull out of their society for the sake of collecting higher post-tax incomes elsewhere. Unless the members of our society - and also those of other societies - are patriotic in this sense, concern with maximin will force our institutions to pay large unjustified incentive payments to th'e holders of precious factors. There is, it must be conceded, one alternative to such a patriotic commitment. It consists in hoisting the maximin institutions from the local to the global level, from the-nation state to the world community. This is not, how- ever, the way Rawls (1993b) himself conceives of global justice. The just law of peoples, in his view, is not the one on which the representatives of individuals would settle in a global original position in which they 100 PHILIPPE V AN PARIJS ignore which society they belong to. It is one on which the represen- tatives of well-ordered societies would settle behind a suitably redesigned veil of ignorance, and it will include no stronger redistributive institution than mutual aid in the event of famines and other disasters. But if this is the way Rawlsians need to conceive of global justice, then, as the world market strengthens its grip on a growing number of countries, it becomes every day more crucial that Rawlsians should also be patriots. In so far as Rawlsianism rejects the global maximin of a world society while at the same time shying away from patriotism, it can only turn into the ideolo- gical justification of a world-wide breakdown of redistributive institutions in the name of maximin constrained by free exit. 9 And even if the global maximin is recognized, as I believe it should, as the only coherent long- term ideal, patriotic commitments would provide a welcome help to relieve pressure on each country's (or each region's or each confedera- tion' s) redistributive setup in the long interim period that is bound to elapse before sufficiently powerful interpersonal transfer systems can be introduced at the global level. Hence, whether or not consistent Rawlsians can stop short of ad- vocating a global maximin, patriotism is a central ingredient in the in- dividual ethics called forth by the conception of justice they assert. Universite catholique de Louvain Chaire Hoover d'ethique economique et sociale 3 Place Montesquieu, B-1348 Louvain-Ia-Neuve, Belgium NOTES * This article is a significantly abridged version of a paper that grew, in directions I did not anticipate, out of a sequence of talks given in various places in the course of the academic year 1993-1994: at a meeting of the Institut International de Philosophie on "Public and private morality" (Liege, 2 September 1992), at the Philosophy Department of Bristol University (Bristol, 12 February 1993), at the conference on "Democracy and consensus. A debate around John Rawls" (Oxford, 13 February 1993, at the Philosophy Department of the Universite du Quebec (Montreal, 7 April 1993), at the Legal Theory Workshop of Yale Law School (New Haven, 8 Apri11993), SOCIAL JUSTICE AND INDIVIDUAL ETHICS 101 at the Seminaire de philosophie contemporaine of the U niversite catholique de Louvain (Louvain-Ia-Neuve, 22 April 1993), at the Faculty of economic and social sciences of the Universite catholique de Fribourg (Fribourg, 11 May 1993), at the Theology Faculty of the Universite de Geneve (Geneva, 12 May 1993), at the Philosophy Department of Fu Jen University (Taipei, 29 May 1993), at the Faculty of Sociology and Politics of the Universitat Autonoma de Barcelona (Barcelona, 19 June 1993) and at the 1993 meeting of the September Group (London, 3 September 1993), I am particularly grateful to Bruce Ackerman, Karl-Otto-Apel, Christian Amsperger, Ruth Barcan-Marcus, Brian Barry, Sam Bowles, Chris Bertram, John Broome, Jerry Cohen, Jocelyne Couture, Genevieve de Pesloiian, Toni Domenech, Paul Dumouchel, Ronald Dworkin, Owen Fiss, Marc Fleurbaey, Andreas Follesdal, Keith Graham, Steven Lukes, Adam Morton, Robert Nadeau, Kai Nielsen, Onora O'Neill, John Passmore, Michael Rosen, Dan Weinstock, Erik Wright and' above all John Baker and Joe Carens, for stimulating oral and/or written comments. All of them forced me and helped me to think harder about the issues touched upon in the article, but only some of this further thinking found its way into this abridged version. The com- plete version will appear in the newly founded European Journal of Philosophy. 1. Here, and throughout the remainder of this paper, "her" stands for "his or her" or "him or her", and "she" for "he or she" . 2. As a professor in a catholic University, I may perhaps be forgiven for using this convenient but admittedly parochial formulation. 3. See James Meade's (1973,52) statement that "ideal society would be one in which each citizen developed a real split personality, acting selfishly in the market place and altruistically at the ballot box" (quoted by Barry 1989, 394-5). Split personalities are not the out- come of a conflict beteen two moralities, but the instrument of a single one. . 4. On the former, see the discussion between Scanlon (1991) and Rawls (1993a, 179-80) on whether utilitarianism is a form of liberalism. On the latter, see the discussion between Dworkin (1977, 234-8), and, for example, Ten (1980, 30-3) and Ezorsky (1981) on the notion of "personal" preferences. 5. I shall return below (section 6) to the question of what does follow 102 PHILIPPE VAN P ARIJS for individual conduct, according to Rawls himself, from a commit- ment to justice as fairness as a purely political conception. 6. The present section and the following two are heavily indebted, more than is acknowledged in the footnotes of this abridged version, to discussions of equality and compensation by Joseph Carens (1981, 1985, 1986) John Baker (1987, 1992) and Brian Barry (1992). 7. I should say that I am exploring this interpretation of the egalitarian ideal because it is present in Cohen's critique of Rawls, not because I bel ieve it provides the most appealing approach. Some metric of opportunities (rather than of income-burden bundles) makes for a better fit with (at least) my moral intuitions, generalizes easily be- yond the sphere of production and dispenses with the problematic notion of objective burden (see Van Parijs 1990, 1991). However, some version of the central issues raised in this article arises also under the opportunity-egalitarian interpretation. 8. This twofold restriction on individual behaviour bears at least some resemblance with Rawls's (1990, §37.1) stipulation that, in a well- ordered society, "citizens accept existing institutions as just and usually have no desire to violate, or to renegociate, the terms of social cooperation, given their present and prospective social posi- tion. Here we suppose that political and social cooperation would quickly break down if everyone, or even many people, always acted self- or group- interestedly in a purely strategic, or game-theoretic fashion" (my emphasis). 9. Rawls (1990, §26.5; 1993b) speaks of a "suitably qualified right of emigration". But the qualifications he has in mind have nothing to do with the patriotic duty advocated here: "I shan't discuss these qualifi- cations. I have in mind, for example, that those properly convicted of certain sufficiently serious crimes may not be allowed to emigrate, pending serving their sentence" (Rawls 1990, §26.5, n 15). REFERENCES Baker, John. 1988. Arguing for Equality. London: Verso. Baker, John. 1992. An egalitarian case for basic income .. In Arguing for Basic Income. Ethical Foundations for a Radical Reform Ed. P. Van Parijs.London: Verso, 101-27. SOCIAL JUSTICE AND INDIVIDUAL ETHICS 103 Barry, Brian. 1989. Theories of Justice. London: Harvester-Wheatsheaf. Barry, Brian. 1992. Equality Yes, Basic Income No. In Ed. P. Van Parijs. Arguingfor Basic Income. Ethical Foundationsfor a Radical Reform. London: Verso, 128-40. Carens, Joseph H. 1981. Equality, Moral Incentives and the Market. Chicago: University of Chicago Press. Carens, Joseph H. 1985. Compensatory justice and social institutions. Economics and Philosophy 1: 39-67. Carens, Joseph H. 1986. Rights and duties in an egalitarian society. Political Theory 14 (1): 31-49. Cohen, G.A. 1992a. Incentives, Inequality and Community. In The Tanner Lectures on Human Values Vol. XIII: Salt Lake City: Uni- versity of Utah Press, 261-329. Cohen, G.A. 1992b. The Pareto Argument for Inequality. Oxford: All Souls College, June 1992, 56 p. Ezorsky, Gertrud. 1981. On Refined U til itarianism . Journal of Philoso- phy 78: 156-9. Grey, Thomas C. 1973. The First Virtue. Stanford Law Review 25: 286- 327. Meade, James E. 1973. Theory of Economic Externalities. Leiden: Sij- thoff. Narveson, Jan F. 1976. A Puzzle about Economic Justice in Rawls's Theory. Social Theory and Practice 4: 1-27. Rawls, John. 1990. Justice as Fairness. A Restatement. Harvard Univer- sity, unpublished lecture notes. Rawls, John. 1993a. Political Liberalism. New York: Columbia Univer- sity Press. Rawls, John. 1993b. The Law of Peoples. Amnesty International Lecture, Oxford University, 12 February 1993. Scanlon, Tim M. 1991. The Moral Basis of Interpersonal Comparisons. In Eds. J. Elster & J .E. Roemer. Interpersonal Comparisons afWell- being. Cambridge: Cambridge University Press, 17-44. Ten, C.L. 1980. Mill on Liberty. Oxford: Clarendon Press. Van Parijs, Philippe. 1990. Equal Endowments as Undominated Diver- sity. Recherches Economiques de Louvain 56: 327-356. Van Parijs, Philippe. 1991. Why Surfers Should be Fed. The liberal case for an unconditional basic income. Philosophy and Public Affairs 20: 101-31. 
work_ejx6zzsrnjdclicvwtvms43asm	----	The British Crime Survey (BCS) showed that there were 10.7 millions crimes committed against adults living in private households in England and Waes in 2008/09, 8.7 million fewer crimes than in 1995. (Table 9.2) According to the BCS in England and Wales in 2008/09, victims of domestic violence were most likely to report being a repeat victim, with 38 per cent of domestic violence victims experiencing this crime more than once in the 12 months prior to interview. (Figure 9.4) The number of crimes reported to the police in England and Wales in which a firearm excluding air weapons had been used was 8,208 in 2008/09, a fall of 17 per cent compared with the previous year. (Figure 9.6) In 2008, there was a total of £609.9 million worth of plastic card fraud losses on UK issued cards, the highest recorded since 1998, when £135.0 million worth of fraud losses occurred. Losses of £379.7 million (62 per cent) occurred in the UK, compared with £230.1 million (38 per cent) of fraud which occurred abroad. (Figure 9.8) Police officers from ethnic minority groups accounted for 4.4 per cent of total police officer strength in England and Wales at 31 March 2009. (Table 9.19) In 2008/09, a total of 31,259 complaint cases were made by members of the public against those serving with the police in England and Wales, an increase of 8 per cent on the previous year and the most complaints recorded in a single year since 1990. (Figure 9.21) C h ap ter 9 Download data by clicking the online pdf www.statistics.gov.uk/ socialtrends Crime and justice 126 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 Many people will be affected by crime during the course of their lives, either directly through loss or suffering, or indirectly through, for example, experiencing heightened levels of fear. This can restrict people’s behaviour, or mean that they feel they have to take additional security measures in the course of their daily life. Crime and its associated problems are a continuing concern for society and the Government. There are two main sources of statistics on crime levels: household population surveys of people’s experiences of crime, and police records of crime (see Measures of crime text box). Crime levels This chapter discusses the incidence and the prevalence of crime (see also Appendix, Part 9: Prevalence rates and incidence rates). The prevalence of crime, or the percentage of people who were victims, is covered in the Offences and victims section later in the chapter. The incidence of crime, or the number of crimes experienced, is analysed in this section. In 2008/09, there were 5.2 million crimes recorded by the police across the UK (Table 9.1), this was a fall of 5 per cent from 5.4 million offences in 2007/08. In England and Wales, recorded crime also fell by 5 per cent between 2007/08 and 2008/09, to reach 4.7 million notifiable offences. Nearly three-quarters (71 per cent) of recorded crimes in England and Wales were property crimes; these include theft and handling stolen goods, burglary, offences involving a vehicle, criminal damage and fraud and forgery. Almost a fifth (19 per cent) of all recorded crime involved violence against the person. The definition of crime in Northern Ireland is broadly comparable with that in England and Wales. The police in Northern Ireland recorded 110,000 crimes in 2008/09. Theft and handling stolen goods accounted for 24 per cent of all recorded crimes, a lower proportion than in England and Wales or Scotland. In Northern Ireland criminal damage and violence against the person formed higher proportions of recorded crime, at 26 per cent and 27 per cent respectively. Measures of crime There are two main measures of the extent of crime in the UK: surveys of the public, and crime recorded by the police. The British Crime Survey (BCS) interviews adults aged 16 and over who are living in private households in England and Wales. The Scottish Crime and Justice Survey (SCJS) and the Northern Ireland Crime Survey (NICS) interview adults aged 16 and over in Scotland and Northern Ireland respectively. In some ways the BCS, the SCJS and the NICS give a better measure of many types of crime than police-recorded crime statistics. These surveys show the large number of offences that are not reported to the police and also give a more reliable picture of trends, as they are not affected by changes in levels of reporting to the police or by variations in police recording practice (see Appendix, Part 9: Types of offence in England and Wales, in Scotland, and in Northern Ireland). Recorded crime data cover offences reported to, and recorded by, the police. The National Crime Recording Standard (NCRS), introduced in England and Wales in 2002 and the Scottish Crime Recording Standard (SCRS), introduced in 2004, were implemented with the aim of taking a more victim-centred approach and providing consistency between police forces (see Appendix, Part 9: National Crime Recording Standard). Police-recorded crime and survey-measured crime have different coverage. Unlike crime data recorded by the police, surveys are generally restricted to crimes against adults living in private households and their property and do not include some types of crime (for example, fraud, murder and victimless crimes such as drug use, where there is not a direct victim). See also Appendix, Part 9: Availability and comparability of data from constituent countries Table 9.1 Crimes recorded by the police: by type of offence,1 2008/09 United Kingdom Percentages England & Wales Scotland Northern Ireland Theft and handling stolen goods 36 34 24 Theft from vehicles 8 4 3 Theft of vehicles 3 3 3 Criminal damage 20 29 26 Violence against the person2 19 3 27 Burglary 12 7 11 Drugs offences 5 11 3 Fraud and forgery 3 2 3 Robbery 2 1 1 Sexual offences 1 1 2 Other offences3 2 12 3 All notifiable offences (=100%) (thousands) 4,702 377 110 1 See Appendix, Part 9: Types of offences in England and Wales, in Scotland and in Northern Ireland, and Availability and comparability of data from constituent countries. 2 Data for Scotland are serious assaults only. Those for England and Wales and Northern Ireland are all assaults including those that cause no physical injury. 3 Northern Ireland includes ‘offences against the state’. Scotland excludes ‘offending while on bail’. Source: Home Office; Scottish Government; Police Service of Northern Ireland www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_01.xls 127 Social Trends 40: 2010 edition Chapter 9: Crime and justice 9 In Scotland the term ‘crime’ is reserved for the more serious offences, broadly equivalent to ‘indictable’ and ‘triable-either- way’ offences in England and Wales, while less serious crimes are called ‘offences’ (see Appendix, Part 9: Types of offences in England and Wales, in Scotland and Northern Ireland). The most common recorded crime in Scotland in 2008/09 was theft and handling stolen goods (34 per cent), followed by criminal damage (29 per cent) and drugs offences (11 per cent). The British Crime Survey (BCS) estimates of crime are considerably higher than the number of crimes recorded by the police. Many crimes reported to the BCS are not reported to the police, for a variety of reasons. For example, people may consider that the crime was too trivial, or that it was not worthwhile reporting because there was no loss involved. Whether or not a crime had been reported to the police varies by type of offence. Of the comparable crimes covered in both the BCS and police records, (see Appendix, Part 9: Comparable crimes) in 2008/09 theft of a vehicle was the most likely crime captured in the BCS to be reported to the police: 89 per cent of all thefts of vehicles in England and Wales had been reported. Burglaries in which something was stolen had the second highest reporting rate (83 per cent). This is at least in part because both these types of crime need to be reported to the police if the victim wishes to make an insurance claim. Of the 10.7 million crimes reported to the British Crime Survey (BCS) in England and Wales in 2008/09, almost two-thirds (6.8 million offences) were household crimes (Table 9.2). The remainder, 3.9 million offences, were personal crimes. The total number of crimes estimated by the BCS rose steadily throughout the 1980s and early 1990s and peaked in 1995, at 19.4 million. Estimated crime levels then declined steadily until 2004/05 and have remained broadly stable since. The Scottish Crime and Justice Survey (SCJS) estimated that around 1.04 million crimes were committed against adults in private households in Scotland in the 12 months prior to interview in 2008/09, 70 per cent of which were property crimes. The remaining crimes were violent crimes of assault and robbery. Estimates from the Northern Ireland Crime Survey (NICS) estimated that 176,000 crimes were committed against adults living in private households in the 12 months prior to interview in 2008/09. This was a fall of almost 12 per cent compared with the total of 199,000 in 2007/08, and was two-fifths (40 per cent) lower than the peak recorded in 2003/04 (295,000 crimes). Offences and victims According to the 2008/09 British Crime Survey (BCS), around 23 per cent of all adults aged 16 and over in England and Wales had experienced one or more BCS crimes in the 12 months prior to interview. The most common crime experienced was vandalism, with 2.8 million incidents in the 12 months prior to interview (Table 9.3 overleaf). There were 1.5 million incidents of vehicle-related theft (including theft of, or from, motor vehicles, but not bicycles), a fall of two-thirds (66 per cent) since 1995. In 2008/09, vehicle-related thefts accounted for 14 per cent of BCS crime, compared with 23 per cent in 1995. In Northern Ireland in 2008/09, around 13 per cent of households were victims of at least one Northern Ireland Crime Survey (NICS) crime during the 12 months prior to interview, which is the lowest level of victimisation since the survey began in 1994/95. In Scotland in 2008/09, 20 per cent of adults were the victim of at least one Scottish Crime and Justice Survey (SCJS) crime during the 12 months prior to interview. Being a victim of crime can be traumatic and the impact can vary depending on the type of offence and the circumstances under which it occurs. For example, the impact can be worse when a person is repeatedly victimised. In the BCS, repeat victimisation is defined as being a victim of the same offence, or group of offences, more than once within a 12 month period. According to the BCS in England and Wales in 2008/09, 9 per cent of victims who experienced theft from the person in Table 9.2 British Crime Survey offences1 England & Wales Millions All household crime All personal crime All BCS crime 1983 7.7 4.2 11.9 1987 9.0 4.4 13.4 1991 10.4 4.7 15.1 1995 12.4 6.9 19.4 1999 9.4 5.6 15.0 2003/04 7.2 4.5 11.7 2007/08 6.5 3.8 10.2 2008/09 6.8 3.9 10.7 1 Until 2000 respondents were asked to recall their experience of crime in the previous calendar year. From 2001/02 onwards the British Crime Survey (BCS) became a continuous survey and the recall period was changed to the 12 months prior to interview. Source: British Crime Survey, Home Office www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_02.xls 128 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 the 12 months prior to interview had been victims of this offence more than once during the period (Figure 9.4). Victims of domestic violence were most likely to report being a repeat victim, with 38 per cent of domestic violence victims experiencing this crime more than once in the 12 months prior to interview, and around a fifth (21 per cent) were victimised at least three times. The second most common offence reported by the same victim on more than one occasion within the last 12 months was vandalism (28 per cent). In England and Wales there were 2.1 million violent offences reported in the BCS in 2008/09, a fall of 614,000 incidents since 2001/02. Assault without injury accounted for the largest proportion of violent offences (40 per cent) followed by assault with minor injury (25 per cent), wounding (22 per cent) and robbery (13 per cent). These proportions were very similar to those in 2007/08. The number of violent crimes increased during the 1980s to reach a peak of more than 4 million incidents by 1995. Incidents of BCS violent crime have fallen markedly since the mid-1990s to a level similar to 1981 (2.1 million crimes). The risk of becoming a victim of violent crime varies according to personal characteristics. Except in cases of domestic violence, men are most likely to be victims of violent crime. In England and Wales in 2008/09, the overall risk of an adult becoming a victim of violent crime at least once in the 12 months prior to interview was 3.2 per cent (Figure 9.5). This proportion rose to 13.2 per cent for men aged 16 to 24, compared with 5.5 per cent of women of the same age. The risk to a single person of becoming a victim of violence (7.6 per cent) was more than five times higher than the risk to a married person (1.4 per cent) and around twice as high as the risk to a cohabiting person (3.8 per cent) or a divorced person (3.2 per cent). The level of risk is also related to lifestyle. For example, those who visited a nightclub on average at least once a week were considerably more at risk (12.4 per cent) than those who had not visited a nightclub in the last month (2.5 per cent). Firearms are defined as having been used in an incident if they are fired, used as a blunt instrument against a person, or used as a threat. The number of reported crimes in England and Wales involving the use of a firearm was 14,250 in 2008/09, Table 9.3 Incidents of crime: by type of offence1 England & Wales Millions 1981 1991 1995 2001/02 2006/07 2007/08 2008/09 Household crime Vandalism 2.7 2.8 3.4 2.6 3.0 2.7 2.8 All vehicle-related theft2 1.8 3.8 4.4 2.5 1.7 1.5 1.5 Burglary 0.7 1.4 1.8 1.0 0.7 0.7 0.7 Bicycle theft 0.2 0.6 0.7 0.4 0.5 0.4 0.5 Other household theft3 1.5 1.9 2.3 1.4 1.2 1.1 1.2 All household crime 6.9 10.4 12.4 7.9 7.1 6.5 6.8 Personal crime Theft from the person 0.4 0.4 0.7 0.6 0.6 0.6 0.7 Other thefts of personal property 1.6 1.7 2.1 1.4 1.1 1.0 1.1 All BCS violence 2.1 2.6 4.2 2.7 2.5 2.2 2.1 Assault with minor injury 0.6 0.8 1.4 0.7 0.6 0.5 0.5 Assault with no injury 0.8 1.0 1.6 1.0 1.0 0.9 0.8 Wounding 0.5 0.6 0.9 0.6 0.6 0.5 0.5 Robbery 0.2 0.2 0.3 0.4 0.3 0.3 0.3 All personal crime 4.1 4.7 6.9 4.7 4.2 3.8 3.9 All crimes reported to BCS 11.0 15.1 19.4 12.6 11.3 10.2 10.7 1 Until 2000 respondents were asked to recall their experience of crime in the previous calendar year. From 2001/02 onwards the British Crime Survey (BCS) became a continuous survey and the recall period was changed to the 12 months prior to interview. 2 Includes theft of, or from, a vehicle, as well as attempts. 3 Includes thefts and attempted thefts from domestic garages, outhouses and sheds, not directly linked to the dwelling, as well as thefts from both inside and outside a dwelling. Source: British Crime Survey, Home Office www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_03.xls 129 Social Trends 40: 2010 edition Chapter 9: Crime and justice 9 a decrease of 18 per cent from the previous year, 2007/08, when 17,343 offences were recorded, and a fall of 41 per cent since the peak of 24,094 offences recorded in 2003/04 (Figure 9.6). In 2008/09, 8,208 offences were committed in which firearms were reported to have been used (excluding air weapons) of which 2,671 were fired with 39 offences resulting in a fatal injury. During the same period, of the total number of firearm offences (excluding air weapons) committed, 5,337 offences were reported in which the weapon was not fired but was used as a blunt instrument or to threaten a person. The number of firearm offences (excluding air weapons) involving any kind of injury almost halved between 2007/08 and 2008/09, falling from 3,241 to 1,764. An air weapon differs from the conventional firearm by the fact that it, and the pellets discharged, do not contain any explosive substance and most are of such limited powers that they are not required to be licensed, except those classified as dangerous weapons by the Firearms Rules 1969. In 2008/09, the number of reported crimes in England and Wales involving the use of an air weapon was 6,042, of which 5,340 reported incidents involved the air weapon being fired and 702 incidents were reported in which the air weapon was not fired but was used as a blunt instrument or to threaten a person. Around half of firearm offences in 2008/09 (excluding those involving air weapons) involved a handgun (52 per cent). Imitation firearms were used in 18 per cent of incidents, shotguns in 8 per cent, and rifles in 1 per cent. Other firearms including CS gas, stun guns, and paintball guns accounted for 9 per cent of all firearm offences. The firearm was unidentified in 12 per cent of offences. Table 9.3 showed that there were 1.5 million vehicle-related thefts against the household population in England and Wales in 2008/09. Of these, 70 per cent of offences were thefts from Figure 9.4 Repeat victimisation:1 by type of offence, 2008/09 England & Wales Percentages 1 Victims of the same offence, or group of offences, more than once in the last 12 months. 2 Includes thefts and attempted thefts from domestic garages, outhouses and sheds, not directly linked to the dwelling, as well as thefts from both inside and outside a dwelling. 3 Includes theft of, or from, a vehicle, as well as attempts. Source: British Crime Survey, Home Office 0 5 10 15 20 25 30 35 40 Domestic violence Vandalism Acquaintance violence Other household theft2 Vehicle-related theft3 Stranger violence Burglary Bicycle theft Other theft of personal property Theft from the person Figure 9.5 Adults most at risk of violence,1 2008/09 England & Wales Percentages 1 People who reported being a victim of violence one or more times in the 12 months prior to interview. Source: British Crime Survey, Home Office 0 2 4 6 8 10 12 14 Men aged 16–24 Visited nightclub/disco once a week or more in last month Full-time student Unemployed Single people Mixed ethnicity All adults Figure 9.6 Crimes1 reported to the police in which a firearm had been used England & Wales Thousands 1 Changes in counting offences were made in April 1998 and the National Crime Recording Standard was implemented in April 2002. See Appendix, Part 9: National Crime Recording Standard. Source: Home Office 0 5 10 15 20 25 1998/99 2000/01 2002/03 2004/05 2006/07 2008/09 Air weapons All weapons excluding air weapons All weapons www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_04.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_05.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_06.xls 130 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 vehicles and 10 per cent were thefts of vehicles, while 20 per cent were attempted thefts either from or of the vehicle (Figure 9.7). In a pattern similar to violent crime, the number of offences in each of the vehicle-related theft categories had fallen by around two-thirds since they peaked in 1995 (see Table 9.3). The fall in vehicle-related crime may be at least in part the result of better vehicle security. The proportion of vehicles in England and Wales fitted with security devices has risen over time and in 2008/09 the majority of vehicles had some form of security device installed: 91 per cent of main cars (that is, the car most used by the household) had central locking, and 80 per cent had immobilisers. The risk of being a victim of vehicle-related theft varies according to the employment status of the household reference person (see Reference persons text box on page 15). For example, in England and Wales in 2008/09, 10.1 per cent of households headed by a student had experienced vehicle-related theft, compared with 2.5 per cent of households headed by a retired person. The household’s accommodation was also a risk factor: households living in flats or maisonettes were more likely to be victims of vehicle-related theft (8.3 per cent) than those living in detached houses (4.7 per cent). The risk to households with three or more cars (11.1 per cent) was more than double the risk to households with only one car (5.1 per cent). In 2008, the value of transactions resulting from fraudulent use of UK credit and debit cards, both in the UK and overseas, totalled £609.9 million, an increase of 14 per cent on the previous year and over 350 per cent since 1998 (Figure 9.8). However, this amounted to 0.1 per cent of the total value of transactions made in 2008 using plastic cards issued in the UK. Losses of £379.7 million (62 per cent) occurred in the UK, compared with £230.1 million (38 per cent) of fraud which occurred abroad. More than half (54 per cent) of all losses on UK issued cards were through card-not-present transactions, and more than a quarter (28 per cent) resulted from the use of counterfeit cards. The remaining losses were a result of lost or stolen cards (9 per cent), card identity theft (8 per cent) and mail non-receipt, in which cards are stolen while in transit from the issuer to the cardholder (2 per cent). Card-not-present fraud, where genuine card details are used to make a purchase online, over the phone or by post, increased by 350 per cent between 2000 (72.9 million frauds) and 2008 (328.4 million frauds). However, over the same period, the value of online shopping alone increased more than tenfold, from £3.5 billion in 2000 to £41.2 billion in 2008. Counterfeit card fraud involves the unauthorised use of card details taken from the magnetic strip of a genuine card. Although the value of this type of card fraud taking place in UK increased by 9 per cent between 2007 and 2008, it fell by 68 per cent between 2004 and 2008 because of the introduction of chip and PIN, which requires people to enter a unique code, rather than signing their name, when purchasing goods. Counterfeit card fraud accounted for 58 per cent of losses in value that occurred abroad involving UK issued cards, as fraudsters use the cards in countries that do not yet have chip and PIN. Figure 9.7 Vehicle-related theft1 England & Wales Incidents 1 Until 2000 respondents were asked to recall their experience of crime in the previous calendar year. From 2001/02 onwards the British Crime Survey became a continuous survey and the recall period was changed to the 12 months prior to interview. Source: British Crime Survey, Home Office 0 500 1,000 1,500 2,000 2,500 1981 1991 2001/02 2008/09 Theft from vehicle Theft of vehicle Attempted theft Figure 9.8 Plastic card fraud losses1 on UK-issued cards £ million 1 Value of transactions resulting from fraudulent use of UK credit and debit cards, both in the UK and overseas. Source: The UK Cards Association 0 100 200 300 400 500 600 700 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_07.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_08.xls 131 Social Trends 40: 2010 edition Chapter 9: Crime and justice 9 Perceptions of crime Table 9.2 showed that there were an estimated 10.7 million crimes committed in England and Wales in 2008/09, a fall of 45 per cent since the peak of 19.4 million crimes recorded in 1995. However, when asked if they believed crime levels had changed nationally and locally over the last two years, the 2008/09 British Crime Survey (BCS) reported that 75 per cent of respondents thought that crime levels across the whole country had increased over the last two years, but around half this proportion (36 per cent) thought that there was more crime in their local area. This pattern of belief that crime had increased to a much greater extent nationally than in their local area was reflected in perceptions of the levels of individual types of crime. Almost four-fifths (78 per cent) of people living in private households in England and Wales in 2008/09 believed that knife crime had increased a lot nationally over the last two years, while 16 per cent thought it had increased a little (Table 9.9). At a local level, 8 per cent of people believed that knife crime had increased a lot and 21 per cent thought that it had increased a little. In contrast, BCS data show that knives were used in less than 8 per cent of all violent crimes in each year since 1995 (7 per cent in 2008/09). Bank and credit card fraud were perceived to have gone up at a local level more than any other crime, with 22 per cent of people questioned stating that they thought bank and credit card fraud had gone up a lot in their area and 31 per cent thinking that it had gone up a little. The Crime and Disorder Act (1998) defined anti-social behaviour as ‘acting in a manner that caused or was likely to cause harassment, alarm or distress, to one or more persons not of the same household (as the defendant)’. In 2008/09, 17 per cent of people questioned in England and Wales believed that there were high levels of anti-social behaviour in their area (Table 9.10). The most common anti-social behaviours Table 9.9 Perceptions of changing crime levels: by type of crime,1 2008/09 England & Wales Percentages National level Local level Increased a lot Increased a little Increased a lot Increased a little Knife crime 78 16 8 21 Bank/credit card fraud 70 21 22 31 Gun crime 62 25 4 12 People getting beaten up 55 29 9 25 Muggings/street robberies 45 34 7 23 Vandalism 40 33 9 28 Homes being broken into 31 34 9 25 Cars being broken into 34 30 9 23 Cars being stolen 31 31 6 20 1 British Crime Survey respondents were asked if they thought specific crimes had increased locally or nationally. Data are the proportion of people who answered ‘increased a lot’ or ‘increased a little’. Source: British Crime Survey, Home Office Table 9.10 Anti-social behaviour indicators1,2,3 England & Wales Percentages 1992 1996 2000 2002/03 2004/05 2006/07 2008/09 Teenagers hanging around on the streets 20 24 32 33 31 33 30 Rubbish or litter lying around 30 26 30 33 30 31 30 People using or dealing drugs 14 21 33 32 26 28 28 Vandalism, graffiti and other deliberate damage to property 26 24 32 35 28 28 27 People being drunk or rowdy in public places . . . 23 22 26 26 Noisy neighbours or loud parties 8 8 9 10 9 11 10 Abandoned or burnt-out cars4 . . 14 25 12 9 6 High level of perceived anti-social behaviour5 . . . 21 17 18 17 1 Until 2000 respondents were asked to recall their experience of crime in the previous calendar year. From 2001/02 the British Crime Survey became a continuous survey and the recall period was changed to the 12 months prior to interview. 2 People saying anti-social behaviour is a ‘very/fairly big problem’ in their area. 3 Percentages do not sum to 100 per cent as respondents could give more than one answer. 4 Question only asked of a quarter of the sample in 2002/03. 5 This measure is derived from responses to seven individual anti-social behaviour strands. See Appendix, Part 9: Anti-social behaviour indicators. Source: British Crime Survey, Home Office www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_09.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_10.xls 132 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 identified were teenagers hanging around on the streets and rubbish or litter lying around, both reported by 30 per cent of survey respondents, followed by people using or dealing drugs (28 per cent); vandalism, graffiti and other deliberate damage to property (27 per cent); and people being drunk or rowdy in public (26 per cent). Between 2002/03 and 2008/09, the proportion of people who perceived abandoned or burned out cars to be a problem fell from 25 per cent to 6 per cent. Perceived levels of anti-social behaviour varied according to household and area characteristics, age and sex. For example, 19 per cent of households in urban areas felt there to be a high level of anti-social behaviour in their area compared with 8 per cent of households in rural areas. People in social rented accommodation perceived higher levels of anti-social behaviour (29 per cent) than private renters (18 per cent) or owner- occupiers (13 per cent). Older people aged 65 and over (13 per cent) were less likely to feel that there was a high level of anti-social behaviour in their area compared to young people aged 16 to 24 (24 per cent). Young women were the most likely to feel that there was a high level of anti-social behaviour in their area: 29 per cent of women aged 16 to 24 compared with 20 per cent of men in the same age group. The gap between the sexes narrowed in the older age groups and at the oldest ages there was no difference: 9 per cent of both men and women aged 65 to 74 and 4 per cent of both men and women aged 75 and over felt there was a high level of anti-social behaviour problems in their area. Offenders Recorded crime figures based on administrative data collected by the police show that in 2008, 1.69 million offenders were found guilty of, or cautioned for, indictable and summary (including motoring) offences in England and Wales. (See Appendix, Part 9: Types of offence in England and Wales). Most of the offenders were male (76 per cent), of whom around 11 per cent were aged under 18. In 2008, 32,700 people aged 10 to 14 were found guilty of, or cautioned for, an indictable offence in England and Wales. Males in this age group were more likely than females to be offenders, 22,200 compared with 10,500 (Figure 9.11). Of all offenders who were found guilty of, or cautioned for, an indictable offence in 2008, 35 per cent were aged 20 to 29, the highest proportion for any age group. The proportion of the population who were offenders declined with age as males and females entered their 30s. Less than 15 per cent of males and females over the age of 40 were found guilty of, or cautioned for, an indictable offence in 2008. For those aged 60 and over the proportion of the population who were offenders was negligible. In Northern Ireland, 7,600 offenders were found guilty of, or cautioned for, indictable offences in 2006. Of these, 88 per cent were male. Young men aged 19 and 20 were most likely to be offenders, with 4 per cent of this age group being found guilty of, or cautioned for, an indictable offence. The proportion of women who were offenders was less than 1 per cent for all age groups. The type of indictable offences for which people were found guilty of, or cautioned for, were similar for men and women in England and Wales in 2008. For both men and women, the most common indictable offence was theft and handling stolen goods accounting for 31 per cent of all male offences (125,200) and 52 per cent of all female offences (48,900) (Figure 9.12). The second most common offences for men were drug offences (88,800) at 22 per cent followed by violence against the person (65,100) at 16 per cent of all male offences. Theft and handling stolen goods, violence against the person and drug offences accounted for the majority of all offences by females (78 per cent). ‘Other offences’, which include fraud and forgery and indictable motoring offences, accounted for 16 per cent of offences for both men and women. In Northern Ireland, the most common offences to be found guilty of, or cautioned for, in 2006 were violent offences (violence against a person, sexual offences, and robbery) and acquisitive offences (theft, burglary and fraud and forgery) Figure 9.11 Offenders:1,2,3 by age England & Wales Thousands 1 People found guilty of, or cautioned for, indictable offences. 2 For motoring offences only persons found guilty are included; these offences may attract written warnings, which are not included in this chart. 3 Data for April, July and August 2008 excludes convictions data for Cardiff magistrates’ court. Source: Office for Criminal Justice Reform, Ministry of Justice 0 40 80 120 160 200 2003 2004 2005 2006 2007 2008 10–19 20–29 30–39 40–49 50–59 60 and over www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_11.xls 133 Social Trends 40: 2010 edition Chapter 9: Crime and justice 9 both at 34 per cent, followed by criminal damage and drug related offences, at 17 per cent and 10 per cent respectively. Not all offences have to be dealt with by the court, the police can deal with some people using a range of alternatives such as a simple caution, conditional caution, penalty notice for disorder or fixed penalty notice for motoring offences. Once the police obtain enough evidence for conviction, the offenders are charged and taken to court where, if found guilty, the court imposes a sentence. Sentences in England, Wales and Northern Ireland can include immediate custody, a community sentence, a fine or, if the court considers that no punishment is necessary, a discharge. In 2008, of the 495,200 offenders found guilty of, or cautioned for, indictable offences in England and Wales, 63 per cent (310,000 offenders) were sentenced (Table 9.13). The type of sentence given depends on the offence committed and other factors that may be applied on a case-by-case basis (see Appendix, Part 9: Sentences and orders). In 2008, the most common type of sentence was a community sentence (32 per cent), with more than two-fifths (44 per cent) of offenders sentenced for criminal damage receiving this sentence. Suspended sentence order was the least common sentence given at 9 per cent, with violence against a person and motoring offenders being the most likely offenders (18 per cent) to receive this sentence. Figure 9.12 Offenders found guilty of, or cautioned for, indictable offences:1 by sex and type of offence, 2008 England & Wales Thousands 1 See Appendix, Part 9: Types of offence in England and Wales. 2 Includes fraud and forgery and indictable motoring offences. Source: Office for Criminal Justice Reform, Ministry of Justice Theft and handling stolen goods Drug offences Violence against the person Burglary Criminal damage Robbery Sexual offences Other offences2 0 15 30 45 60 75 90 105 120 135 Males Females Table 9.13 Offenders sentenced for indictable offences: by type of offence1 and type of sentence,2 2008 England & Wales Percentages Discharge Fine Community sentence Suspended sentence order Immediate custody Other All sentenced (=100%) (thousands) Theft and handling stolen goods 20 13 37 6 19 6 109.5 Drug offences 16 33 23 6 18 4 52.4 Violence against the person 5 4 36 18 33 4 39.8 Burglary 3 2 40 10 42 4 23.6 Fraud and forgery 14 12 28 15 30 3 16.9 Criminal damage 21 11 44 5 12 8 9.4 Motoring 3 20 27 18 30 2 4.6 Robbery 0 0 34 5 60 2 8.5 Sexual offences 3 2 27 8 58 2 5.1 Other offences 9 28 23 10 24 7 40.3 All indictable offences 13 16 32 9 25 5 310.0 1 See Appendix, Part 9: Types of offence in England and Wales. 2 Data are based on the principle offence basis, where an offender has been sentenced for more than one offence the principle offence is the one for which the heaviest sentence was imposed. See Appendix, Part 9: Sentences and orders. Source: Ministry of Justice www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_12.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_13.xls 134 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 Prisons and sentencing Prison is the usual eventual destination for offenders given custodial sentences, and also for those who break the terms of their non-custodial sentence. Sentenced prisoners are classified into different risk-level groups for security purposes. Women prisoners are held in separate prisons or in separate accommodation in mixed prisons. Young offenders receiving custodial sentences have traditionally been separated from adult offenders, enabling them to receive additional educational and rehabilitative treatment. The size of the prison population in England and Wales (those held in prison but excluding those in police cells, see Appendix, Part 9: Prison population for more details) has risen by 79 per cent over the years from 17,435 in 1900 when the records began to reach 82,572 in 2008. During this period the population of females in prisons almost doubled from 2,976 in 1900 to 4,414 in 2008, but decreased as a proportion of the male population from 17 per cent in 1900 to 5 per cent in 2008 (Figure 9.14). The prison population was relatively stable during the 1970s and early 1990s, but in the mid-1990s it began to increase. The largest increase during the 1990s occurred between 1996 and 1997 at 11 per cent. Apart from decreases of less than 1 per cent in 1993 and again in 1999, the prison population has increased annually since 1991. Of the 70,800 British nationals in prison in England and Wales in 2008, the majority were White (79 per cent of male inmates and 83 per cent of female inmates) (Table 9.15). The second largest ethnic group within the prison population in 2008 was Black or Black British, at 11 per cent of male inmates and 9 per cent of female inmates. The proportions of male and female inmates who were from the Mixed ethnic group were similar (3 per cent and 4 per cent respectively) but there were more Asian or Asian British males in prison (5 per cent of all inmates) than Asian or Asian British females (2 per cent). On 30 June 2009 the prison population was 83,454, with a further 258 people held in secure training centres and 175 in local authority children’s homes, an increase in total prison population of less than 1 per cent compared with June 2008. The increased prison population may partly result from a rise in the use of longer prison sentences. Average custodial sentence lengths given by the Crown court have increased from 21.8 months in 1998 to 24.5 months in 2008. Over the same period, the average length of custodial sentences given by the magistrates’ courts has been stable at around three months. In 2007, there were 2.7 million motoring offences in England and Wales dealt with by official police action or penalty notice charge, of which 2.6 million were fixed penalty notices issued by the police (including traffic wardens) which were paid and thus resulted in no further action. Speed and traffic light cameras in England and Wales provided evidence for almost Figure 9.14 Average prison population:1,2 by sex England & Wales Thousands 1 Data are annual averages. 2 Excludes prisoners held in police cells. Source: Ministry of Justice 0 10 20 30 40 50 60 70 Males Females 80 1968 1973 1978 1983 1988 1993 1998 2003 2008 Table 9.15 Prison population of British nationals: by ethnic group1 England & Wales Percentages 2004 2005 2006 2007 2008 Males White 75 82 81 80 79 Mixed 2 3 3 3 3 Asian or Asian British 4 5 5 5 5 Black or Black British 9 10 11 11 11 Chinese and other ethnic group - - - - - Total male population (=100%) (thousands) 60.8 62.1 62.7 64.5 67.3 Females White 78 82 83 84 83 Mixed 4 5 4 4 4 Asian or Asian British 1 2 2 2 2 Black or Black British 9 10 10 9 9 Chinese and other ethnic group - - - - - Total female population (=100%) (thousands) 3.6 3.5 3.4 3.2 3.5 1 See Appendix, Part 1: Classification of ethnic groups. Source: Ministry of Justice www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_14.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_15.xls 135 Social Trends 40: 2010 edition Chapter 9: Crime and justice 9 1.4 million of these fixed penalties, an increase of nearly half (48 per cent) compared with 2001 (Table 9.16). The majority (92 per cent) of those offences for which evidence had been provided by a camera were speeding offences, with the remainder being traffic light offences. Overall, cameras were used to provide evidence for 86 per cent of speeding offences in 2007 that resulted in fixed penalty notices being issued. Cameras were also used in 53 per cent of offences of neglect of traffic signs and directions and pedestrian rights, which includes traffic light offences. Fixed penalty notices are motoring offences that are issued on the spot, and can be endorsable (accompanied by points added on the driving licence) or non-endorsable (no points added). There was a fall in the number of fixed penalty notices issued in England and Wales for the use of a hand-held mobile phone while driving, from 167,000 offences in 2006 to 122,000 offences in 2007. This is partly because, at the end of February 2007, the offence was changed from a non-endorsable offence to an endorsable offence, increasing the penalty and adding points to the offender’s licence. In 2007, 90 per cent of fixed penalty notices issued by the police were paid. Fixed penalty notices issued for endorsable offences were more likely to be paid without further enforcement action than were those for non-endorsable offences: 98 per cent of fixed penalty notices issued for endorsable offences were paid compared with 74 per cent of non-endorsable offences where the driver was present and 73 per cent of non-endorsable offences where the driver was not present. Anti-social behaviour orders (ASBOs) were introduced in England and Wales under the Crime and Disorder Act (1998) and have been available since April 1999. ASBOs are civil orders that impose restrictions on the behaviour of individuals who have behaved in an anti-social way in order to protect communities from often longstanding and intimidating activity. They can be made against anyone aged 10 and over. The number of ASBOs issued in England and Wales increased from 350 in 2001 to a peak of 4,122 in 2005, since when they have fallen back to 2,299 in 2007. The increase between 2003 and 2005 followed the introduction of the Anti-Social Behaviour Act in 2003. This Act strengthened the ASBO by increasing the number of categories for which ASBOs can be awarded, enhancing their legal status and banning spray paint sales to people under the age of 16, and also gave local councils the power to order the removal of graffiti from private property. It also covers truancy, people making false reports of emergency, misuse of fireworks, private drunkenness and gang activity. Of the 2,299 ASBOs issued in 2007, 17 ASBOs were to persons of unknown age. Of the 2,282 ASBOs issued to persons of known age 1,362 were issued to individuals aged 18 and over, and 920 were issued to 10 to 17-year-olds (Figure 9.17). A larger proportion of males than females were issued ASBOs in 2007. Of the total number of ASBOs issued in this year, half (50 per cent) were issued to men aged 18 and over and more than a third (36 per cent) were issued to males aged 10 to 17, while 9 per cent were issued to women aged 18 and over and 4 per cent were issued to females aged 10 to 17. The remaining 1 per cent were issued to males whose age was unknown. Table 9.16 Fixed penalties1 for motoring offences detected by cameras: by type of offence England & Wales Thousands Speeding offences Traffic light offences All offences 2001 878 46 923 2002 1,135 71 1,206 2003 1,670 115 1,785 2004 1,787 113 1,900 2005 1,764 123 1,887 2006 1,634 119 1,752 2007 1,260 109 1,369 1 Includes paid, fixed penalties only. Offences where the fixed penalty was not paid are not counted, as further action was taken. Source: Home Office 1 Issued at all HM Courts and reported to the Home Office by the Courts Service. Source: Home Office Figure 9.17 Number of anti-social behaviour orders (ASBOs) issued:1 by age England & Wales Numbers 0 500 1,000 1,500 2,000 2,500 3,000 2001 2002 2003 2004 2005 2006 2007 10–17 18 and over www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_16.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_17.xls 136 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 Between June 2000 and December 2007 a total of 14,972 ASBOs were issued in England and Wales. Of these, more than half (53 per cent) were proved in court to have been breached at least once and 39 per cent were proved to have been breached more than once. Life imprisonment, or its equivalent, must be imposed on all persons aged 10 and over convicted of murder. This sentence may also be imposed for a number of the most serious crimes, including manslaughter, robbery, rape, assault with intent to do grievous bodily harm, aggravated burglary, and certain firearms offences. In 2008, 523 people were sentenced to life imprisonment in England and Wales, a fall of 4 per cent compared with 2006 (Table 9.18). The great majority of people sentenced to life imprisonment were men (95 per cent) and just over one in ten (11 per cent) were aged 18 to 20 and one in twenty (almost 5 per cent) were males aged 10 to 17. In Scotland, 32 people were sentenced to life imprisonment in 2008, excluding those given indeterminate sentences. This was a decrease of 21 persons on the previous year. More than three-quarters (78 per cent) were men aged 21 and over, and 19 per cent were men aged 18 to 20. No life sentences have been issued to anyone aged under 18 in Scotland since 2004. Resources There were 43 police forces in England and Wales employing 143,770 full-time equivalent police officers at 31 March 2009, the highest number of police officers ever recorded. Of these, 6,290 police officers were from an ethnic minority group, equivalent to 4.4 per cent of the total police strength and double the proportion recorded in 2000 (2.2 per cent) (Table 9.19). The proportion of police officers belonging to an ethnic minority was lower at senior ranks. In 2009, 2.8 per cent of officers at chief superintendent level were from an ethnic minority compared with 4.8 per cent of officers who were constables. One per cent of officers did not state their ethnicity in 2009. Of the officers who stated they were from an ethnic minority group, 39.3 per cent were Asian or Asian British, 27.0 per cent were from the Mixed ethnic group, 22.7 per cent were Black or Black British and 11.0 per cent were from the Chinese or Other ethnic group. The proportion of ethnic minority officers varies by police force in England and Wales. The largest proportion of ethnic minority officers were based in the Metropolitan Police force (8.8 per cent) which accounted for 45 per cent of all ethnic minority police officers in England and Wales, followed by West Midlands (7.7 per cent), accounting for 11 per cent, Leicestershire (6.6 per cent) accounting for 2 per cent and Bedfordshire (6.1 per cent) accounting for 1 per cent. Police officers from ethnic minority groups accounted for less than 1 per cent of the total police strength in four police force areas in 2009: North Wales (0.8 per cent), Devon and Cornwall (0.8 per cent), Dyfed Powys (0.7 per cent) and Humberside (0.9 per cent). A quarter (25.1 per cent) of all police officers in England and Wales were women at 31 March 2009. This proportion was lower in the more senior ranks with 13.0 per cent of officers at rank of chief inspector or above being female compared with 27.9 per cent who were constables. According to the 2008/09 British Crime Survey just over two-thirds (67 per cent) of people in England and Wales had overall confidence in the police in their local area, a Table 9.18 People sentenced to life imprisonment:1 by sex England & Wales Numbers Males Females All people 1998 380 14 394 2000 446 21 467 2002 536 19 555 2004 548 22 570 2006 531 16 547 2008 495 28 523 1 See Appendix, Part 9: Sentences and orders. Source: Ministry of Justice Table 9.19 Ethnic1 minority police officers as a proportion of all police officers: by rank2 England & Wales Percentages 2008 2009 Association of Chief Police Officers 3.3 4.0 Chief Superintendents 2.3 2.8 Superintendents 2.9 3.2 Chief Inspectors 3.0 2.7 Inspectors 2.6 3.1 Sergeants 3.0 3.2 Constables 4.4 4.8 All ethnic minority police officers 4.1 4.4 1 See Appendix, Part 1: Classification of ethnic groups. 2 As at 31 March in each year. Source: Home Office www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_18.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_19.xls 137 Social Trends 40: 2010 edition Chapter 9: Crime and justice 9 2 percentage point increase since 2007/08 (Table 9.20). More than half (53 per cent) of people thought that their local police force was doing a good or excellent job, the same proportion as the previous year, and a 3 percentage point increase since 2005/06. In general, these indicators showed that the majority of people in England and Wales agreed that their local police treat people with respect (84 per cent), that they treat everyone fairly (65 per cent), and that they understand the issues affecting the community (65 per cent). People were less likely to agree that their local police force could be relied upon to be there when needed (48 per cent) or to deal with minor crimes (46 per cent). The proportion of people who agreed that their local police force was doing a good or excellent job in 2008/09 varied according to certain demographic characteristics. For example, women were more inclined than men to rate the police as doing a good or excellent job (56 per cent compared with 51 per cent) and people from non-White groups were more likely than White people to rate the police as doing a good or excellent job (57 per cent compared with 53 per cent). However, 67 per cent of men thought that the police would treat people fairly, compared with 63 per cent of women. Similarly, 84 per cent of White people thought that the police would treat people with respect, compared with 81 per cent of people from non-White groups. In 2008/09, a total of 31,259 complaint cases were made by members of the public against those serving with the police in England and Wales, an increase of 8 per cent on the previous year and the most complaints recorded in a single year since 1990 (Figure 9.21). Complaints were made by 31,673 individuals in England and Wales in 2008/09, a rate of approximately one complainant per complaint. Almost two-thirds (63 per cent) of complainants were White, Table 9.20 Ratings and perceptions of local police England & Wales Percentages 2005/06 2006/07 2007/08 2008/09 Ratings of local police1 How good a job do you think the police are doing 50 51 53 53 Perceptions of police in local area2 Would treat you with respect if you had contact with them 82 83 83 84 Treat everyone fairly regardless of who they are 63 62 64 65 Understand the issues that affect this community 60 60 62 65 Are dealing with the things that matter to people in the community 49 49 51 54 Can be relied on to be there when you need them 47 47 48 48 Can be relied on to deal with minor crimes 42 41 43 46 Overall confidence in the local police2,3 63 64 65 67 1 Proportion of respondents who rated police as excellent/good. 2 Proportion of respondents who strongly agreed/tended to agree with the statement. 3 Based on the question ‘Taking everything into account I have confidence in the police in this area’. Source: British Crime Survey, Home Office Figure 9.21 Number of complaint cases recorded1,2 by police forces England & Wales Thousands 0 5 10 15 20 25 30 35 1990 1993 1996/97 1999/2000 2002/03 2005/06 2008/09 1 Complaints made by members of the public against those serving with the police. Includes completed complaint cases and pending cases at end of reporting year. 2 Data from 2004/05 are post-Police Reform Act 2002. Source: Independent Police Complaints Commission www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_20.xls www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_21.xls 138 Chapter 9: Crime and justice Social Trends 40: 2010 edition 9 7 per cent were Black, 6 per cent were Asian, 3 per cent were in the Other ethnic group and the ethnicity of around a fifth (22 per cent) of complainants was unknown. A complaint may comprise one or more allegations, for example, a person may complain that a police officer was rude to them (one complaint) or that he was rude to them and that he pushed them (two allegations but treated as one complaint). There were 53,534 allegations in England and Wales in 2008/09, a rise of 11 per cent on 2007/08. The most common types were ‘incivility, impoliteness and intolerance’ (21 per cent), which includes abusive, offensive or rude language or behaviour, and ‘other assault’ (13 per cent), which includes allegations that unreasonable force was used. Allegations of ‘other neglect or failure in duty’ (24 per cent) includes allegations such as a failure to record or investigate matters and keep interested parties informed. Allegations of discriminatory behaviour formed 3 per cent of the total, the majority of which (76 per cent) concerned allegations of racial discrimination. The British Crime Survey asked people in England and Wales how confident they were that the Criminal Justice System (CJS) was fair and effective. Overall, 59 per cent of people questioned in 2008/09 thought that the CJS was fair although fewer people (38 per cent) thought that it was effective. However, levels of confidence in the CJS, particularly in its effectiveness, vary considerably by the respondent’s occupation (Table 9.22). For example, 72 per cent of full-time students felt that the CJS was fair and 60 per cent thought that it was effective. In comparison, 56 per cent of those in intermediate or routine and manual occupations felt that the CJS was fair and 35 per cent of those in managerial and professional or intermediate occupations thought that it was effective. White people were less likely to have confidence in the CJS than people from other ethnic groups. In 2008/09, 57 per cent of White people thought that the CJS was fair and 36 per cent thought that it was effective. In comparison, 72 per cent of Asian or Asian British people thought that the CJS was fair and 61 per cent thought that it was effective. For Black and Black British people, the equivalent figures were 60 per cent and 51 per cent. People who had any type of contact with the police in the 12 months prior to interview were slightly less likely to believe that the CJS was fair (57 per cent) or effective (37 per cent) that those who had not had contact with the police (61 per cent and 40 per cent). Table 9.22 Confidence in the criminal justice system (CJS): by respondent’s occupation, 2008/09 England & Wales Percentages Confidence that the CJS is fair Confidence that the CJS is effective Managerial and professional occupations 59 35 Intermediate occupations 56 35 Routine and manual occupations 56 38 Never worked and long-term unemployed 68 52 Full-time students 72 60 Not classified 49 32 Source: British Crime Survey, Home Office www.statistics.gov.uk/downloads/theme_social/Social-Trends40/09_22.xls Crime and justice Crime levels Offences and victims Perceptions of crime Offenders Prisons and sentencing Resources 
work_eleckkd64rfkpbqkfltamwlwiq	----	Review Caring democracy: Markets, equality and justice Joan Tronto New York University Press, New York and London, 2013, x+228pp., ISBN: 978-0814782774 Contemporary Political Theory (2016) 15, e22–e25. doi:10.1057/cpt.2015.32; published online 2 June 2015 Don’t let ‘care’ distract you. This book is about democracy, what it requires, what troubles ours and how we might remedy contemporary political malaise. Care, Joan Tronto compellingly argues, is at the heart of both our democratic deficit and our democratic potential. Tronto leads a multidisciplinary field of scholars who have developed a rich literature on care. In this latest pioneering contribution, she brings the insights of care theory to bear on democratic theory and practice. This long-overdue connection reveals much about our political present and possible futures. With Caring Democracy Tronto contributes to renewed efforts to theorize the interaction between economic and political forces of contemporary life. The work vividly illustrates how democracy depends on activities that are often ignored, undervalued and left out of public discussions, and provides a devastating account of how gender norms, tropes of choice and personal responsibility, and market mechan- isms are deployed in the neoliberal context to undermine both care and democracy. The book is of two parts. The first is conceptual, an argument about the connections between democracy and care, and the implications for self-consistent democrats (care-ist and other); the second is a critique of current practices, rhetoric and rationality. Both are powerful and compelling. Tronto’s argument begins with that oft-forgotten fact of which she has spent her career reminding us: we human beings depend on care. ‘Care’ is a vexing political concept. Its maternalist roots suggest something women do in ‘the private sphere’. Tronto’s signature contribution is to expand our understanding of what care is and why it is an essential concern of politics and political theory. In Caring Democracy, she returns to a definition that she and Bernice Fisher developed in 1990: ‘care is a species activity that includes everything that we do to maintain, continue, and repair our “world” so that we can live in it as well as possible’ (p. 19). If this sounds like nearly everything we do, it is. Expansiveness, in a sense, is her point. It is essential to the political project of © 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 15, 2, e22–e25 www.palgrave-journals.com/cpt/ http://dx.doi.org/10.1057/cpt.2015.32 http://www.palgrave-journals.com/cpt exposing and revaluing the swaths of too often ignored activity upon which our lives – and democracy – depend. We are interdependent beings. Living well is not a solo endeavor; it is the result, and Tronto would argue, the activity of care – giving, receiving, taking, sharing – broadly understood. This is the case she makes: production (for example, factory work) and societal protection (for example, policing) ought to be understood as caring activities, similar in key ways to, for example, educating, meal preparing and house cleaning (p. 21). It follows, as she shows, that the distribution of care has profound impacts on the distribution of social and political power. Receive inadequate care and one is less likely to develop the capacity to function well as a democratic citizen; shoulder too much caregiving and one is less likely to have the resources to participate in the democratic process. Call these the facts of care. What we ought to do about these facts, Tronto insists, is a political question. Indeed, as she points out, acknowledged or not, every political system and theory has an account of care and its demands (p. 28). In refreshing divergence from the dominant strains of care theory, Tronto filters the facts of care through democratic commitments. Thus she adds to her earlier definition a ‘final phase of care’: ‘caring with … requires that caring needs and the ways in which they are met need to be consistent with democratic commitments to justice, equality and freedom for all’ (p. 23). If a commitment to democracy implies a commitment to equal voice, then it also entails – at very least, Tronto argues – a commitment to making the distribution of caring responsibilities the first concern of politics. Tronto – it should be highlighted – writes as a partisan of democracy, albeit democracy defined in light of the facts of care. ‘Democratic life rests upon the presumption that citizens are equal … What is distinctive about democratic caring, though, is that it presumes … that we are equal as democratic citizens in being care receivers …. This quality of being needy is shared, equally by all humans’ (p. 29). Building from this Tronto argues that ‘[t]o be a citizen in a democracy is to care for citizens and to care for democracy itself. I call this practice “caring with” ’ (p. x). And to do this, the distribution of care needs to be the first concern of our political lives. Some will worry that she puts outcome (that is, a certain distribution of care) before democratic process. In fact, though, her position is deeply faithful to democratic process; the concern about the distribution of care stems from a commitment to what she quite plausibly claims is the defining value implicit in a commitment to democratic process, that of equal voice. Once ‘a democratic society makes a commitment to equality of all of its members, then the ways in which the inequalities of care affect different citizens’ capacities to be equal has to be a central part of the society’s political tasks’(p. 10). With the conceptual frame of a ‘feminist democratic ethic’ in hand, in the three central and perhaps best chapters of the book, Tronto turns a critical eye to contemporary life. Patriarchal gender norms, neoliberal rationality and marketization, she shows, distort the realities of care and real costs of democracy, and threaten both. Review e23© 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 15, 2, e22–e25 Some citizens shoulder more care responsibilities or receive inadequate care and thus have inadequate resources to participate in politics; other more privileged citizens can purchase better care and are given ‘passes’ that exempt them from significant care responsibilities. Heteronormative masculinity underpins the ‘production’ and ‘protec- tion’ passes that exempt cis-gender men from giving care typically associated with women. Tronto’s expansive definition of care is key here. For her, both production and protection are caring activities. It is not, then, that men do not care, but that our ideologies of gender, citizenship and the private sphere obscure the ways in which care is distributed. Gender norms are also at work, she shows, where recipients of ‘nurturant’ care are cast as feminized dependents and recipients of ‘protective’ care have their status as a citizen affirmed. Gender thus links threats to care and democracy. Neoliberal practices and rationality do much the same. Tronto’s illuminating and much-needed discussion of the marketization of care calls attention to the ways in which class and race mark some as ideal caregivers and thus more likely to be assigned caring responsibilities. For others, class and race function as passes of ‘privileged irresponsibility’ that allow them to shunt caring responsibilities onto others. Neoliberal rationality also underwrites the ‘bootstrap’ and ‘charity’ passes. Representing the refrains of ‘personal responsibility’ and obligation as the results of unfettered choice respectively, both feed the conclusion that care should be left to the market. Without rejecting the value of market mechanisms altogether, Tronto makes a powerful case that this turn threatens both care and democracy. Not only do the market values of efficiency and fungible exchange conflict with the nature of key varieties of care, but markets have very bad memories; they thus tend to re-entrench social inequality and are ill-suited to relieving it. Indeed, without historical memory – and the realities of interdependence it reveals – the basis for the far-reaching sense of responsibility she advocates is lost. By effacing the facts of care, neoliberal rationality and the market mechanisms it champions threaten care and democracy. In the final two chapters, Tronto begins to paint a picture of how we might think about care democratically. Her broadly compelling account provides essential foundations for further work on how care and democracy might be harmonized. This is an important and pioneering book. Any effort of such ambition is bound to leave unanswered questions. Caring Democracy is no exception. To say, as many have, that Tronto’s definition of care is broad is close to an understatement. Indeed, it is not entirely clear what human activity would not fall into the category of care. Poetry, play, violence? Given its baggage of, for example, the connotation of altruism and the historical connection (in scholarship and practice) to motherhood and gendered labor, the question is important. Tronto’s efforts to address it – saying that the general concept can be refined for particular purposes – are successful in part but not, I think, entirely. Take, for example, the function of necessity in the concept. The language of need is central to Tronto’s discussion. Clearly, she has in mind activities that are essential – not superfluous – to living well. The normative power of this status is important: if none of us can do without care, if we have no choice but to Review e24 © 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 15, 2, e22–e25 depend on the care of others, then to claim that we are in some sense mutually responsible for one another makes sense. And yet, as Hannah Arendt has argued, the introduction of necessity into political discourse has a way of closing off real deliberation. One is tempted to ask: what happens, on her account, when the demos doesn’t care about care? What if an actual democratic process does not produce the conclusions she shows are the essential to the realization of democracy’s defining values? Explicitly, Tronto sides with the democratic process. But one wonders then what to do with the force of necessity highlighted by care. To be sure, this is a vexing question for all democratic theory. The essential contribution Tronto makes here is to help us see just what is at stake, really, in our commitment to democracy. Once again, Tronto has broken new ground. The path laid here is one down which anyone interested in democratic, feminist and care theory, and our political world more generally is wise to follow. Tamara Metz Reed College, Portland, OR 97202, USA Review e25© 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 15, 2, e22–e25 Caring democracy: Markets, equality and justice 
work_eltmx4ltfbeobodupm6erxskna	----	cover final Against Sen Against Rawls on Justice Evan Riley* Amartya Sen has recently levelled a series of what he alleges to be quite serious but very general objections against Rawls, Rawlsian fellow travellers, and other social contract accounts of justice. In The Idea of Justice, published in 2009, Sen specifically charges his target philosophical views with what he calls transcendentalism and procedural parochialism, and with being mistakenly narrowly focused on institutions. He also thinks that there is a basic incoherence—arising from a version of Derek Parfit’s Identity Problem—internal to the Rawlsian theoretical apparatus. Sen would have political philosophy pursue inter-societal comparisons of relative justice more directly and in the manner of social choice theory. Yet the positive argument that he develops in support of this method is quite thin. That aside, Sen’s polemical strategy of inflicting death by a thousand cuts is ineffective against the Rawlsian paradigm. For, as I show herein, none of these criticisms has the force we might be led to expect. Keywords: The Idea of Justice, Amartya Sen, Transendental versus Comparative justice Among his many contributions to morally engaged intellectual life, Amartya Sen has long been a trenchant and sympathetic critic of John Rawls's work.1 One of his seminal efforts in that regard is his charge that Rawls's original emphasis in A Theory of Justice on shares of primary social goods, and in particular, on the socially sanctioned all purpose means of fulfilling one’s legitimate ends— for example, monetary income and wealth—is perhaps distorted (see Sen, 1980). Recall that for Rawls therein, the primary social goods are broadly categorized as the “rights and liberties, opportunities and powers, income and wealth” that a rational representative behind the veil of ignorance is presumed to want, and to want more of, whatever else they may want.2 On Rawls' view, it is the fair distribution of these very goods that the just basic structure of society is properly concerned with. As Sen pointed out, this classification may obscure the fact that what we ought to care about in this connection is not the largest fair share of stuff as such, even such potentially useful stuff as money. Instead, the truly basic emphasis should be on fairly fostering the development of capabilities of individual human beings to realize valuable forms of functioning. It is the production and distribution of this sort of thing that properly constituted societies ought to be concerned with. This is a valuable insight, and more of a friendly emendation than a devastating criticism.3 First, by abstracting away from monetary wealth, Sen’s line of thought broadens the potential scope of the Rawlsian-style argument to naturally include more social worlds and more kinds of individual lives. Second, by placing the emphasis squarely on the realized capabilities of human beings, Sen encourages us not to distort our reflections about social justice in the direction of thinking that it is merely a matter of securing the negative liberties. I say ‘Bravo!’ to this. Indian Journal of Human Development, Vol. 5, No. 1, 2011 * Visiting Assistant Professor of Philosophy, The College of Wooster, Ohio, USA. Email: eriley@wooster.edu 212 Indian Journal of Human Development Sen has more recently been arguing for a full-scale recasting of academic philosophical theorizing about social justice.4 I think that this new line of argument is neither remotely convincing in its attack on Rawls nor insightful in its intended basic aim. In an article written in 2006, “What Do We Want from a Theory of Justice?” (see Sen, 2006), he defended this line and strikingly concluded that political philosophers should simply stop pursuing, in the style of Rawls, the grand question ‘What is a just society?’. In presumptive contrast with this dominant approach, Sen argues that political philosophers should be centrally concerned with the making of comparative judgments of justice in a way inspired by the social choice tradition and by Adam Smith, among others. This line of thinking has been redeployed, along with several other arguments that are critical of Rawls, and of the Rawlsian paradigm, in Sen’s recent book, The Idea of Justice (see Sen, 2009). Therein Sen alleges that Rawls' exhaustively discussed and enormously influential account of social justice in A Theory of Justice is vitiated by a host of very serious faults that have not been properly appreciated to date. Chief among these are transcendentalism, procedural parochialism, institutionalism, and populational plasticity. The faults are serious enough, according to Sen, to render the theory and its many relatives and descendants distinctly unhelpful as tools for “enhancing justice and removing injustice” or for serving as “the basis of practical reasoning” in that regard (see Sen, The Idea of Justice, 2009, p. ix). A new approach is recommended: call it comparativism. Here, I argue that there are basic difficulties with the critical side of this line of thought. First, it appears that either these alleged faults are not both correctly attributable to Rawls and genuine problems, or if they are genuine problems, are not specific to the Rawlsian problematic. Second, it is not clear that every such theory of justice is properly supposed to provide us with concrete plans of action for its own realization, and Sen does not make that case. Herein, I am mostly occupied with a critical discussion of the alleged problems mentioned above. I close with some very brief reflections on theories of justice and the actualization of justice. First, what is the character of the alleged problem of transcendentalism, said to be characteristic of what Sen calls “transcendental institutionalism” or in some places, the “contractarian approach” (see Sen, The Idea of Justice, 2009, pp. 5 and xvi, respectively)? Sen suggests that the Rawlsian-style pursuit of the grand question— ‘What is a just society?’—involves a pretension to extremely demanding theoretical comprehensiveness concerning its object. Indeed, Sen takes the contractarian tradition generally to be so focused on a kind of theoretical perfection that it is blocked from developing the materials for making comparative judgments of relative justice and injustice. It does seem clear that making such comparative judgments is a necessary condition of practically reasoned social reform. For in the absence of some actual comparisons, in point of justice, between say present conditions on the ground and an achievable reform, a desire to seek and support justice would be without reasoned practical import. Thus, we are invited to think that pursuing the question in a Rawlsian—or more generally contractualist—fashion will militate against realizing needed social reform. Against Sen Against Rawls on Justice 213 Two questions naturally arise. First, what exactly is the nature of the problem for the comparison posed by the relevant theoretical perfectionism? Second, is the Rawlsian framework perfectionist or transcendentalist in that sense, and is it thereby worse than useless for thinking comparatively about social justice here and now? Sen’s answer to the second question is ‘Yes’. I will take this up below and show that this is a mistaken answer. Sen’s answer to the first of these questions appears to be as follows: first, any theory that aims at completely thoroughly describing the just society and at making out an ideally complete and useful set of practical principles for realizing and maintaining justice is perfectionist (or ‘transcendental’) in the relevant sense. And, second, aiming at this terribly ambitious set of goals is substantively mistaken. There seem to be two considerations that Sen is relying on in support of this second claim just above. On the one hand, he thinks that social justice is intrinsically pluralistic in character, so it will often make inconsistent demands. He claims that there are “genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice.” (See Sen, The Idea of Justice, 2009, p. 57). And the fact that there is a sort of deep pluralism in the demands of justice is the lesson naturally drawn from Sen’s parable of the flute and the three children (see Sen, The Idea of Justice, 2009, pp. 12-13 and p. 106). If that is correct, there simply will be no coherently unified story to tell about those demands, even where, as in the social contract model, everyone’s impartial reasons are being fully expressed and fairly consulted. One might presume against this that there is some unified answer to the question of what social justice requires in and perhaps between contemporary societies, albeit perhaps expressible only as a very abstract set of norms, in some order of priority. This is the assumption of most philosophers who inquire into the nature of social justice. There are two issues worth considering just here. First, Sen does not give a decisive argument for the controversial view that justice is intrinsically pluralistic even at a quite general level, and the jury appears to be out, maybe permanently so, on that question. Second, if he were right about this, that should not be particularly comforting for the reform-minded theorist of justice of the proposed new comparative style. For in that eventuality, things would be even murkier than on the competing monistic picture. We would be in the unenviable position of weighing multiple competing demands of the various justices along with all the familiar other possibly competing demands imposed on us by such alleged social virtues as: security against invasion, the very efficient provision of basic material goods, high rates of growth in GDP, high average living standard, or, in a more philosophical gear, maximal well-being. To put it simply, if social justice itself genuinely pulls us in multiple and even opposed directions, there may be no grounds for making even rough comparisons of relative justice and injustice as such. Pointing out that we can and do make choices in circumstances wherein we weigh goods that cannot themselves be made fully commensurate is not a good defence here (see Sen, The Idea of Justice, 2009, p. 241). In short, if Sen leans too heavily on the alleged fact of robust pluralism, then he undermines the grounds for thinking that there could be a comparative theory of justice at all. 214 Indian Journal of Human Development Sen’s other reason for thinking that the complete description of societal justice (and its realization) is an inapt aim has to do with the thought that it would be such a difficult task to complete. This is quite clear in the following: How complete should the assessment be? In the “totalist” approach that characterizes the standard theories of justice, including Rawls' incompleteness tends to appear as a failure…Indeed, the survival of incompleteness is sometimes seen as a defect of a theory of justice, which calls into question the positive assertion such a theory makes. In fact, a theory of justice that makes systematic room for incompleteness can allow one to arrive at quite strong… judgments, without having to find highly differentiated assessments of every political and social arrangement in comparison with every other such arrangement (for example addressing such questions as: exactly how much tax should be put on the sale of petrol in any particular country, for environmental reasons?) (Sen, The Idea of Justice, 2009, p. 103, emphasis added). Sen seems to be thinking that a complete theory of justice is one that will address every practical scenario generating a need for collective or cooperative decision that might come up in the human circumstances of justice. Such a theory would not only descry a coherent system of social institutions but would provide a detailed conceptual structure suitable for determining what justice calls for, in actions, institutions, and policies given whatever circumstances we find ourselves in, and with whatever preferences we might have. It seems that the theory would contain both a highly detailed model of the just society, and also reliable procedures for getting there and for maintaining justice once it is achieved. Sen suggests that this sort of (hopelessly) extreme comprehensiveness is precisely what the transcendental approach, as he calls it, aims at, that is, it aims at “a complete resolution of all the existing decisional issues about societal organization.” (See Sen, “What Do We Want from a Theory of Justice?”, 2006, p. 236.) This is a grand aim indeed. I am inclined to accept, with Sen, that this aim is indeed far too grand to be seriously pursued, and that it reflects confusion. But is one stuck with this aim merely in pursuing the question in view in the relevant fashion? That does not seem to be the case. Let us now consider Rawls' work in this connection, for it is Sen’s paradigm case. Rawls' dominant focus was indeed the topic of social justice in modern mass democracies and Sen is on solid ground to count him as pursuing a version of the grand question by appealing to a development of the idea of the social contract. Yet, in several places, Rawls also explicitly denies that he has the aim of settling in advance, by means of his theory, every practical question that might possibly arise in the circumstances of justice, even for those imperfect contemporary democracies that his theory speaks to most directly. He simply is not aiming at that sort of absolute theoretical comprehensiveness. Consider the following late discussion of the political conception of justice and the conception of the basic structure. The role of a political conception of justice however is not to say exactly how these questions are to be settled, but to set out a framework of thought within which they can be approached. Were we to lay down a definition of the basic structure Against Sen Against Rawls on Justice 215 that draws sharp boundaries, not only would we go beyond what that rough idea could reasonably contain, but we would risk wrongly prejudging what more specific or future conditions may call for, thus making justice as fairness unable to adjust to different circumstances. For our judgments to be reasonable, they must usually be informed by an awareness of those more specific circumstances (See Rawls, Justice as Fairness: A Restatement, 2001b, p. 12). Rawls, as we can see, is indeed pursuing the grand question, while self-consciously explicitly abjuring the ambitious theoretical aim. Sen, however, takes this aim to follow from that pursuit. It follows that if Rawls is correct about the nature of his own theory, and if his project is roughly coherent (as it seems), Sen is wrong. It is possible to pursue the grand question without aiming at absolute theoretical comprehensiveness. Perhaps it will be thought that since the above passage appears relatively late in Rawls's career, it may not reflect the truth about the view in its dominant form. Perhaps, as Sen puts it, Rawls has telling “second thoughts” on this score, the implications of which are not fully worked out (see Sen, The Idea of Justice, 2009, p. 58). I am not convinced. It seems clear from the canonical expression of the view in A Theory of Justice that Rawls never embraced the sort of theoretical comprehensiveness that Sen attributes to him.5 Moreover, I think that there is general reason to doubt that pursuing the grand question requires one to embrace the aim of total (practical-) theoretical comprehensiveness. Suppose that some philosopher embraces a substantial theoretical modesty when it comes to ethics and political philosophy, or, in general, the demands of practical reason. We might imagine that she has become convinced that practical wisdom is uncodifiable, and accordingly also convinced that the relevant idea of a complete theory of perfect social justice is a misleading chimera.6 Do we insist that this philosopher somehow contradicts herself if she nonetheless vigorously pursues the grand question in a contractual vein? Is there something self-defeating about combining moral-theoretical modesty with the pursuit of the grand question of justice in the style of Rawls? I see no reason to think so. Such a philosopher perhaps will insist on the importance of attending to details if we are to uncover anything useful for action. She would remind us that the general principles of justice are always subject to revision and often require supplementation, or filling in, in order to express the relevant provisional practical truth, or that reflective equilibrium is always somewhat provisional. But being committed to this sort of theoretical modesty is not in any tension with the vigorous pursuit of the grand question. Despite these considerations, Sen could yet conceivably nonetheless be correct and Rawls incorrect about the Rawlsian view, and more generally about the social contract approach. But if that were so, we would not expect to find principles useful for making comparisons of relative justice nested within, and derivable from, the theories that this approach yields. Yet we do find such principles. And worse still, for Sen’s line of objection, we find principles that manifestly call upon us to make comparisons. Consider Rawls' difference principle, which roughly holds that social and economic inequalities are to be arranged to the greatest benefit of the least advantaged members 216 Indian Journal of Human Development of society (see Rawls, A Theory of Justice, 1971, p. 302). The basic implication is that any society S will count as just only when the social and economic inequalities are such that the position of those worst off relative to the other members of S, are better off in absolute terms than are the worst off members of every feasible alternative: S*, S**, etc. This is not a sufficient condition of social justice, according to Rawls, but it is in his view a necessary one. Now, not only can we not apply the difference principle in assessment of the justice of some society S except by making comparisons with other possible or actual societies, we cannot really understand the difference principle except as calling for comparative judgments. This is so since Rawls views the principle as a guiding choice between feasible alternatives, one of which may be actual. Manifestly then, one can pursue the grand question, and in so doing, develop the conceptual materials for making comparative judgments of justice. Sen grudgingly admits as much at one point in The Idea of Justice (see Sen, The Idea of Justice, 2009, p. 97). Consider next the thought that some explicitly comparative approach abjuring the grand question is thereby to be preferred to the transcendental approach. Sen supports this by arguing that achieving the aim of the transcendental approach is neither sufficient nor necessary for producing the relevant comparisons (see Sen, The Idea of Justice, 2009, pp. 98-102.) Let us consider this. As a matter of logic, it is true that possessing even some ideally complete theory of the just society does not, by itself, rank any given set of societies in point of justice. Even achieving the aim of the transcendental approach, as Sen describes it, were that possible, would not automatically generate comparisons. But this is equally true of accounts of justice explicitly focused on comparison and which are designed to accommodate incompleteness! It is of course only when it is conjoined with some relevant information about those societies—their historical and cultural circumstances, and so on—that any theory can provide the cognitive materials needed to make the relevant judgments. Once conjoined with relevant information, a theory generated by either approach may be quite useful for making comparisons. For illustration, consider again Rawls's justice as fairness with its two principles of justice, in lexical order.7 Recall that the first principle calls for the equal protection of the basic liberties, and that the second demands both protection for equitable opportunity to compete for attractive positions, and that any remaining inequalities serve the advantage of the least well-off members of society, relative to feasible alternatives. Suppose that the conditions on the ground are as follows. Three societies—S, S*, and S**— are each apparently feasible alternatives of the others. In society S, there are barriers to advancement and political participation, entrenched in positive law, directed against the members of a particular ethnic group on the sole grounds of membership in that group. Further, the economic institutions of S are rife with corruption and inefficiency, and shot through with extremes of income and wealth inequality kept in place by pervasive racism. Here, it seems as if neither of Rawls's principles is met. In society S*, let us suppose that the first principle is met, since there is a familiar set of enshrined constitutional protections of a version of the equal basic liberties that are reasonably effectively enforced. But, let us also suppose that the worst off in S* Against Sen Against Rawls on Justice 217 are plainly not as well off as are the worst off in society S**, though better off than S.8 On still further supposition, in S**, both principles are arguably met, for, as in S*, the constitutional protections are in place and enforced. Let us also assume that these are realistic cases in that none of these societies is perfectly well-ordered under any theory of justice. When made aware of these empirical conditions, the Rawlsian theorist is surely in a cognitive position to rank the three societies in point of justice. If she has had her morning coffee, she would rank S** as just, S* as partly just, and S as unjust. Notice that in the absence of her grasp of Rawls's specific theory, she might well be unable to rank S* and S** differentially, in point of justice, that is, her grasp of the theory allows her to judge that S** is more just insofar as the inequalities are organized to the benefit of the least advantaged. The grasp of the theory is perhaps usefully thought of as an INUS condition for making the comparative judgments. That is, perhaps it is an individually insufficient but non-redundant part of a set of conditions that are jointly unnecessary but here and now sufficient to produce the comparative judgments (see J.L. Mackie, The Cement of the Universe, 1980). In any event, it is clear that Sen’s original claim that no “transcendental theory of justice” even if “entirely successful in answering that classic question…would …yield—directly or indirectly—a comparative framework… needed for the actual assessment of justice” is false (see Sen, “What Do We Want from a Theory of Justice?”, 2006, p. 236). But perhaps the reader is unimpressed with my hypothetical and terribly abstract example of the Rawlsian apparatus in action. Suppose one thinks that, in practice, social contract philosophy, both generally, and in its specifically Rawlsian version, is likely to lead one down unproductive paths from the point of view of realizing justice. Against this empirical claim, consider the work of Thomas Pogge, a doctoral student of Rawls and an eminent political philosopher in his own right (see Pogge, World Poverty and Human Rights, 2008). Pogge has been working towards realizing a Rawlsian conception of justice for many years. He is particularly interested in issues of global justice, and is sympathetic in places to the idea of a global analogue of the Rawlsian hypothetical Original Position (OP), one that takes individuals—and not peoples—to be the represented parties (see, for example, Pogge, “An Egalitarian Law of Peoples”, 1994, pp. 195-224). Very simply, Pogge takes it that the reasoning exhibited by the representatives in the global OP would license at the very least the justice of a global tax on the extraction of non-renewable resources, with the proceeds intended to benefit the globally worst-off. More recently, he has been working on institutionally realizing the idea of a Health Impact Fund to reduce the burden of preventive disease on the world’s poor, and in general, on issues of global poverty relief. It seems to be obvious that in Pogge’s case, his Rawlsianism has productively and directly informed his work, justifying controversial claims about justice, though it has, of course, not been solely determinative. Sen is, of course, familiar with Pogge’s work, but it gets extremely short shrift in The Idea of Justice. Sen’s critical comment on Pogge that “the idea of one global exercise of social contract for the entire world population would appear to be deeply unrealistic” does not bear much scrutiny.9 218 Indian Journal of Human Development It is obviously true that one need not have a precisely and elaborately detailed complete theory of justice (in the relevant sense) in order to have some basis for making comparative judgments. We should accept Sen’s view that this sort of theory is not a necessary condition for comparison (and so for achieving reasoned reform) here and now. But what does one need and how should one proceed? If one is interested in thinking systematically about the basic demands of justice and then comparing some set of societies’ relative distances from meeting those demands, it remains clear, Sen’s arguments to the contrary notwithstanding, that a good way to begin is with the pursuit of the grand question. Sen is undoubtedly correct in thinking that it is possible to give reasons for a choice, and even to secure some agreement, without presupposing total unanimity of well-ordered preferences, or complete knowledge within a community of choice. But part of the strength of the Rawlsian perspective, and of that afforded to us by the social contract mode generally, is to get some significant traction on the question of social justice that rises above empirically given preferences. These are devices for modelling reflectively sound reasoning. It seems to me that there is no good reason for thinking that the partial social ordering generated by a congruence of, say, a majority of a given group’s set of preference orderings is per se to be given special weight when thinking about what justice requires. In the discussion in the concluding pages of his book, Sen gestures towards considerations of public reasons and impartiality as necessary filters for arriving at a sensible inference (see Sen, The Idea of Justice, 2009, pp. 398-99). Yet this seems to push us towards a Rawlsian model. Allow me to briefly consider some of the remaining charges levelled in the book. First, consider what I call procedural parochialism. In a move partly inspired by his love for Smith’s social thought, Sen argues that an impartial outside observer may be in a better position to sort out what justice requires in some concrete social setting than is a person whose life and livelihood are bound up in that locale. Thus, if an actual group were to embark on an attempt to engage in public reason about the rules of the game for themselves, the views of an outsider might be useful for blocking local prejudice or personal and potentially divisive interest from playing the wrong sort of role (see Sen, The Idea of Justice, 2009, p. 70). This might be correct in any particular case, though it seems like an entirely contingent matter. But it does not amount to a sound criticism of Rawls or of all contractualist ways of framing the relevant issues. After all, the very point of the Rawlsian model, with its ideally well-informed but crucially ignorant hypothetical representatives, is to emphasize the importance of impartiality. Rawls and related thinkers are also charged with being wrongly narrowly focused on institutions as the site of social justice. The thought here is that if we focus narrowly on our favoured institutions as manifestations of justice—for example, properly regulated relatively transparent markets, formal democratic electoral procedures, formal equality before the law— once these institutions are somehow concretely realized in the world, we may fail to take account of the effects that these may be having on actual person’s lives. As I noted above, Sen is to be commended for emphasizing, as fundamental, the realization of valued forms of functioning. But, again, this is not a particularly Against Sen Against Rawls on Justice 219 devastating criticism of Rawls. The latter attends to the basic structure of society as that over which the principles are properly authoritative precisely because in human social life, the nature of the overall institutional structure has thoroughgoing effects on the lives of actual people. It is for this reason that Rawls favours maximin as a theory of principle choice, rather than some other more familiar and less risk-averse strategy of choice under uncertainty.10 So it seems perverse to charge Rawls with neglecting this.11 The alleged populational plasticity problem is the final one that I will consider. A relevant point is made particularly clearly in Derek Parfit’s magisterial Reasons and Persons, viz., that choices of social policy in some society will affect the character and size of the future population of that same society (see Parfit, Reasons and Persons, 1984, pp. 355-77). Parfit was worried over the moral implications of this, which he calls the Non-Identity Problem. Sen thinks that a version of this problem arises in an acute form for Rawls and renders his account of justice incoherent. The thought is that the number of participants in the hypothetical assembly is indeterminate as it is affected by the decisions of that very assembly. Since the choice of principles will affect the basic structure and the character of the basic structure will affect the size and character of the population, the model is presumed to be unworkable (see Sen, The Idea of Justice, 2009, p. 145). It is admittedly difficult to know how to precisely take the interests of potential future people into account when thinking about the requirements of justice. After all, it is difficult to see how decisions we take now could be said either to help or to harm people who do not exist and whose very existence is causally down- stream from those decisions! But surely it is coherent to ask, of the members of a given presently living generation of citizens, how they could be represented to reason in a version of the Rawlsian OP. We are simply not required to assume that every possible future person be given a voice in the hypothetical procedure. In conclusion, Sen is certainly correct to think that comparisons of relative justice and injustice should concern those who care about actually making the world a better place. He is also on strong ground in insisting that aiming at a certain kind of theoretical perfection is quixotic and unnecessary for making useful comparative judgments. But these are not things that Rawls, the Rawslians, or social contract thinkers would generally deny. Nor does any feature of their general way of proceeding make them incapable of appreciating these points. There is one final point to register. I would like to resist cynicism about the prospects of concretely engaged political philosophy. Yet it appears highly unlikely that the genuine practical problems posed by the existence of serious injustices, and their going unaddressed, will be resolved by some general paradigm shift—perhaps moving away from the social contract model—in our theories of justice. What mainly keeps us from doing more to reduce injustice is not I think an over-utopian or obsessively perfectionist streak in our theories of justice. Instead, it is the drearily familiar litany of factors: ignorance, selfishness, confusion about what is, on reflection, important in life, failures of will, the distractions of living in a consumer society, the struggles of keeping life and limb together, the ideological state apparatuses, the dominance of our political institutions by the corrupt, the self-interested, and the incompetent, and 220 Indian Journal of Human Development so on. In pursuing the grand question publicly, we open up the reflective space to articulate and then to begin to redress these factors. That openness and the subsequent articulation of the demands of justice remains part of what we ought to want from the activity of theorizing about justice. NOTES 1. For a crisp recent statement of Sen’s sense of his own intellectual and personal relation to Rawls, see his “The Place of Capability in a Theory of Justice” 2010, pp. 239-253. 2. See John Rawls, A Theory of Justice, 1971. I assume that readers are familiar with Rawls' account of justice. In short, he seeks to model relevant impartiality in the reasoned choice of principles of social justice (viewed as governing the institutionally realized distribution of benefits and burdens attendant upon any society) by blocking the hypothetical procedure of choice from reliance on reasons which he thinks are arbitrary from the moral point of view. One’s representative cannot, for example, bargain in a self-interested way from one’s place in the social hierarchy to a set of principles, differentially favouring those in that place, since that sort of reasoning is blocked by what he calls the ‘veil of ignorance’. 3. It is not clear that this insight is the source of a powerful objection to Rawls. See Footnote 3 in John Rawls, The Law of Peoples, 2001 [1999], p. 13. 4. See in particular Amartya Sen, “What Do We Want from a Theory of Justice?”, 2006, pp. 215-38. See also Sen, “The Place of Capability in a Theory of Justice”, 2010, and his introduction in Adam Smith, The Theory of Moral Sentiments, 2009 [1790], pp. vi-xxvi. 5. See, for example, Rawls, A Theory of Justice, 1971, p. 566. “Now this sequence does not aim at the complete specification of conduct. Rather the idea is to approximate the boundaries, however vague, within which individuals and associations are at liberty to advance their aims and deliberative rationality has free play.” 6. The uncodifiability thesis holds that the deliverances of practical reason (whether judgments or actions) are, in general, not to be understood as consisting in the applications of a rule, every instance of which can be completely specified in advance. It is linked with what is sometimes called anti-theory in moral philosophy. For discussion of and motivation for the uncodifiability thesis, see John McDowell, “Virtue and Reason”, 1998 [1979]. 7. See Rawls, Justice as Fairness: A Restatement, 2001b, pp. 42-43. The idea that the principles would be chosen in lexical order reflects the concern that roughly we should not simply trade off economic gains at the expense of sacrificing the basic liberties. 8. I am not assuming that ‘better off than’ always names a relation strictly transitive at the level of general logic. See Stuart Rachels, “Counter-examples to the Transitivity of Better Than”, 1998, pp. 71-83. But I am assuming that here those worst off in S are both more worse off than the relevant those in S* and way more worse off than the relevant those in S**! 9. See Sen, The Idea of Justice, 2009, pp. 140-41. Rawls' original model and its global analogues are, of course, hypothetical, and it simply isn’t clear what sort of “exercise” Sen is labelling as “unrealistic”. If there is a sensible objection here, Sen has not succeeded in making it. Presumably, he is intending to side with Thomas Nagel in emphasizing the idea that at present, the political institutions that would allow for an immediate implementation of ambitious global social policies related to justice are simply not developed enough. Yet, it is not remotely clear that this constitutes a reason counting against the relevance, to global justice, of the Rawlsian apparatus. See Thomas Nagel, “The Problem of Global Justice”, 2005, pp. 113-47. 10. To put it simply, the maximin principle tells one to maximize the minimum or to choose the scenario with the best of the worst achievable outcomes across a range of feasible scenarios. It expresses a high degree of risk aversion. See Rawls, A Theory of Justice, 1971, pp. 152-53. 11. Compare Sen, The Idea of Justice, 2009, p. 85 and Rawls, The Law of Peoples, 2001a, Footnote 3, p. 13. Against Sen Against Rawls on Justice 221 REFERENCES Mackie, J.L. (1980). The Cement of the Universe, Oxford University Press, Oxford. McDowell, John (1998) [1979]. “Virtue and Reason”, Mind Value and Reality, Harvard University Press, New York. Nagel, Thomas (2005). “The Problem of Global Justice”, Philosophy and Public Affairs, Vol. 33, No. 2, pp. 113-47. Parfit, Derek (1984). Reasons and Persons, Clarendon Press, Oxford. Pogge, Thomas (1994). “An Egalitarian Law of Peoples”, Philosophy and Public Affairs, Vol. 23, No. 3, pp. 195-224. —— (2008). World Poverty and Human Rights, (Second edition), Polity Press, Cambridge. Rachels, Stuart (1998). “Counter-examples to the Transitivity of Better Than”, Australasian Journal of Philosophy, Vol. 76, No. 1, March, pp. 71-83. Rawls, John (1971). A Theory of Justice, Harvard University Press, Cambridge, MA. —— (2001a) [1999]. The Law of Peoples, Harvard University Press, Cambridge, MA. —— (2001b). Justice as Fairness: A Restatement, Edited by Erin Kelly, Harvard University Press, Cambridge, MA. Sen, Amartya (1980). “Equality of What?”, in S. McMurrin, Tanner Lectures on Human Values, Vol. I, Cambridge University Press, Cambridge. —— (2006). “What Do We Want from a Theory of Justice?”, The Journal of Philosophy, Vol. CIII, No. 5, May, pp. 215-38. —— (2009). The Idea of Justice, Harvard University Press, Cambridge, MA. —— (2009) [1790]. “Introduction” in Adam Smith, The Theory of Moral Sentiments, Penguin Books, New York, 2009 pp. vi-xxvi. —— (2010). “The Place of Capability in a Theory of Justice”, in Harry Brighouse and Ingrid Robeyns (eds) Measuring Justice, Cambridge University Press, New York, pp. 239-53. 222 Indian Journal of Human Development front 13-Evan Riley back 
work_enmjhmtgpvb6dbeechvgoqwj3i	----	Page Not Found | Rutgers Law Skip to main content Apply Cost Visit Universitywide New Brunswick RBHS Newark Camden Online Rutgers Health Select resource to search THIS SITE This site All sites People Events Buildings RBHS Search term Search submit Menu Rutgers Law Main menu Why Law? Why Law? One Rutgers Law Our Locations Leadership Statement on Black Lives Matter Message from the Co-Deans Alumni Network The Brief Academics Academics Degree Offerings Curriculum Master Course Lists Academic Affairs Student Life Law Library Continuing Education Undergraduate Legal Studies Admissions ABA Standard 509 Disclosure Admissions Admitted Students Apply Cost Fall 2020 FAQ International Students Minority Student Program Non-Discrimination Policy Part-Time/Transfer/Visiting Students Quick Facts Recruiting Events Social Justice Scholars Students with Disabilities Visiting & Virtual Events Faculty Faculty Faculty Directory Staff Directory Library Directory Administration Directory Faculty by Expertise Academic Centers Faculty Insights Blog Real-World Experience Real-World Experience Legal Writing Field Placements International Programs Judicial Externships Law Journals Legal Clinics Mock Trial Participation Pro Bono & Public Interest Rutgers Law Associates Fellowship Program Career Development CAREER DEVELOPMENT About the Center for Career Development Student Information Alumni Information Employer Information Career Pathways Contact Career Development Center ALUMNI Alumni Get Involved Alumni Events Alumni Updates Giving Alumni Resources Rutgers School of Law – Camden Alumni Association Rutgers Law School – Newark Alumni Association Info Info Commencement Current Students Faculty & Staff Alumni Donors & Friends Legal Assistance Legal Community Prospective Students Rutgers.edu Links Universitywide New Brunswick RBHS Newark Camden Online Rutgers Health Page Not Found The page you are looking for has moved. Here are pages you might find helpful: Admissions Current Student Log-in Faculty and Staff Log-in Academics Questions about the new site can be shared with Elizabeth Moore in Newark. Request Info Apply Directions Visit Law Clinics Legal Assistance Events News NEWS ARCHIVE Donate Footer Right CAMDEN Rutgers Law School 217 North Fifth Street Camden, NJ 08102 Phone: (856) 225-6375 NEWARK Rutgers Law School 123 Washington Street Newark, NJ 07102 Phone: (973) 353-5561 ABA Required Disclosures             COPYRIGHT ©2016, RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, AN EQUAL OPPORTUNITY, AFFIRMATIVE ACTION INSTITUTION. ALL RIGHTS RESERVED. 
work_eo2zbuypsvchbbbbob5yy5dhdi	----	TEACHING SOCIAL JUSTICE ADVOCACY: USING THE METAPHOR OF A QUILT Psychology of Women Quarterly, 34 (2010), 550–557. Wiley Periodicals, Inc. Printed in the USA. Copyright C© 2010 Division 35, American Psychological Association. 0361-6843/10 TEACHING BRIEFS TEACHING SOCIAL JUSTICE ADVOCACY: USING THE METAPHOR OF A QUILT Recent literature has called for the counseling and psycho- logical field to integrate social justice issues into student training (Goodman et al., 2004; Prilleltensky, 1997; Singh et al., 2010). However, there has been little attention to the pedagogy of social justice advocacy and how instructors may bring social justice issues to life for students. Fortu- nately, feminist pedagogy has provided a rich foundation of the relational skills instructors may infuse in their teaching (Kimmel & Worell, 1997). These feminist pedagogical strategies have explored how instructors may address is- sues of power and authority in the classroom through self-reflection and the development of student-teacher col- laborative relationships in the construction of knowledge. Feminist pedagogy has also moved beyond a focus on in- structor pedagogical skills, seeking to understand the influ- ence of these skills on students’ experiences in the class- room (Stake & Hoffman, 2000). The purpose of my essay is to discuss how the metaphor of a “social justice quilt” is used as a feminist pedagogical tool to encourage a collaborative student-teacher exploration of the personal experiences of advocacy in a doctoral-level class on social justice issues. Teaching About Privilege and Oppression One of the challenges of teaching about social justice is- sues in counseling and psychology is the construction of a teaching environment where students can empower them- selves to explore their personal experiences of privilege and oppression. Multicultural counseling and psychology courses highlight the importance of students’ understand- ing of the cultural worldviews of themselves and others (Sue & Sue, 2008). However, social justice courses de- mand that students move beyond a multicultural under- standing of diverse cultural worldviews so that they them- selves may become social change agents and take action on issues of equity and justice (Goodman et al., 2004). Therefore, students must have a thorough understanding of not only strategies for social justice, but also—and perhaps more importantly—the ways they have specifically bene- fitted from previous advocacy movements. In this regard, Address correspondence and reprint requests to: Anneliese A. Singh, Department of Counseling & Human Development Ser- vices, The University of Georgia, 402 Aderhold Hall, Athens, GA 30602-7142. E-mail: asingh@uga.edu students have the opportunity to see and experience social justice issues in a more personal manner—rather than as a construct that is more abstract than relevant and meaning- ful in their lives. The Quilt as a Metaphor for Social Justice Advocacy I am fortunate because the doctoral program in which I work is grounded in social justice principles; these prin- ciples influence students’ learning and values before they enroll in the social justice course with me. Social justice is both the mission and aim of our program. However, in previous experiences of teaching about social justice issues at both the masters and doctoral-level outside this program, I had experiences with students that may be far too com- mon for instructors who teach with these commitments. For instance, although some students could talk about the importance of social justice, they often struggled to connect the concept of the “personal is political” with individual psy- chotherapy and clients’ experiences of oppression outside the therapist’s office. Other students saw social justice as a construct that revealed a “liberal bias” in counseling and psychology that had no place in the teaching of counseling and psychology. Still others experienced intense passion around the subject of social justice, yet they felt just as in- tensely overwhelmed by how psychotherapists could ever address the immense issues entailed in social justice advo- cacy. For these reasons, I shifted my pedagogy from assert- ing the importance of social justice and defining its mean- ing in the counseling and psychology literature. Instead, I returned to the feminist foundation of my own peda- gogy and endeavored to construct a new foundation from which I could collaboratively construct knowledge with stu- dents about the personal meaning and relevance social jus- tice advocacy has for both the instructor’s and students’ lives. Using the metaphor of a quilt, I developed an assign- ment that positioned the “personal is political” and called it the “Social Justice Quilt.” As I describe the assignment, I will take direct quotes from the syllabus for the doctoral- level social justice course. (The full syllabus is avaliable online.) Teaching in the South, the metaphor of a quilt has spe- cific and personal meanings for some students. More often than not, students have a quilt that was made for them at their birth and/or have heard stories of quilts made by careful, meticulous hands within their family. Quilts 550 PWQ Teaching Briefs, December 2010 551 themselves have particular meaning in terms of gender and race/ethnicity. The hands that often make quilts belong to generations of creative, strong women in families. In terms of race/ethnicity—often one of the most challenging oppressions from which to explore and own one’s experi- ences of privilege and oppression—quilts also have partic- ular meaning. People of Black/African heritage who were enslaved in the United States often made quilts that en- sured the continuation of cultural symbols and values and that were also used as maps encoding pathways to libera- tion. Therefore, I use the following quote from Milo (1995) to introduce the activity: The quilt is used symbolically for the feelings about race and ethnicity that cover us while we sleep, com- fort us against the cold, and are folded and neatly put away during various seasons of the year. They may be pieced together using one small scrap at a time, sometimes cut into beautiful designs from fancy ma- terials, at other times cut into odd shapes from plain, ordinary, well-worn fabric, and stitched by a machine instead of by hand. Regardless of any or all of these origins, they are bound with small stitches, bordered, have padded insulation, and are backed with substan- tial material. We think of them as so necessary to sur- vival that we give them to babies, and often pack them when going on lone and desolate journeys. Some are tattered and torn from overuse, others are carted out for display, company, or special occasions; but we each own one (p. 4). Using this quote to frame both the personal and political aspects of quilt making, students and I share stories about actual quilts in our lives. I describe the quilt that my White grandmother made for me on the occasion of my birth— replete with its femininity in the form of light pink cotton threads and large crocheted flowers—to invite the personal stories of quilts into the room. Reading Milo’s (1995) quote aloud with the class, we then connect the metaphor of warmth and comfort to the construct of privilege—the un- earned benefits that are handed down generationally and constructed by our foremothers and forefathers. Inevitably as a class, we then explore how social justice advocacy is both a strategy to “level the playing field” with regard to privilege and oppression experiences and the difficulty of identifying privilege because of its insidiousness, its invisi- bility, and its protected status through systems of privilege and oppression. After discussing the histories and her-stories of quilts and the challenge of identifying systems of privilege and the importance of social justice advocacy, we as a class discuss the importance of creativity in becoming a social change agent. Students are encouraged to use their own creative vision to bring their own social justice quilt to life. Their social justice quilts can draw from many forms of media. They may have an emphasis on using found artifacts and objects in their lives and have a goal to link social justice theories in the course to their own personal life experiences: For this project, use everyday objects (e.g., mag- azine cut-outs, photographs, found objects around your home or workplace) to create a “social justice quilt” that represents the most salient aspects of your identity (e.g., race/ethnicity, gender, sexual orienta- tion) and history of personal social justice advocacy that shape how you view social justice theory, the nature of human challenges and resilience, and the reasons you have chosen a helping profession. When students read this description of the activity from the syllabus, many questions arise. Notably, doctoral-level students endeavor to understand the boundaries of the as- signment and the specific level of personal disclosure ex- pected from them in the presentation of their quilts. Prior to discussing these expectations further, we begin a discus- sion of the awareness they may or may not have of social justice movements in order to illustrate the purpose of the social justice advocacy. Connecting to Social Justice Movements The core component of the social justice quilt assignment is the connection between the instructor’s and students’ expe- riences of privilege and oppression with larger social justice movements. Students inevitably have numerous questions about the definition of what a social justice movement is. I initially invite students to brainstorm as a group to de- fine social justice, and students typically share words that I write on the board—such as “liberation,” “rights,” and “eq- uity.” A discussion invariably follows where students ask what actions “count” in terms of social justice actions for psychologists. I share recent definitions of social justice by scholars in psychology, such as Goodman et al. (2004, p. 793), as an exemplar: “Scholarship and professional ac- tion designed to change societal values, structures, poli- cies and practices, such that disadvantaged or marginal- ized groups gain increased access to these tools of self- determination.” Then, I invite students to share what comes to mind for them when they hear the words “social justice.” Students often identify the civil rights movement of the 1960s, the peace movement of the 1970s, and the women’s liberation movement as examples of social justice advocacy. I sketch out a timeline for the movements they name, and then I make a note of the large amount of white space (repre- senting gaps in time) that has not been filled with other social justice movements. Students have rich discussions of why this knowledge may have been missing from their history textbooks and/or from discussions within their fam- ily. Often, as the discussion continues, students begin to identify additional social justice movements in the United States, such as labor rights. Students then begin to ques- tion the U.S.-centricity of their knowledge base and identify 552 PWQ TEACHING BRIEFS, DECEMBER 2010 international social justice movements—typically related to women’s rights and violence. When students understand the parameters of the assign- ment, I then present my own social justice quilt. Exploring the specific intersections of privilege and oppression in my life, I use a Powerpoint presentation with artifacts from my home (e.g., photos, drawings) to bring my social justice quilt to life. I discuss the varying degrees of class privilege I have had over the lifespan, from working class to poverty to upper middle class to middle class. As a queer South Asian woman born in New Orleans, I discuss how my fa- ther’s academic class bought me the value of education and eventually brought our family to various class levels and out of poverty. I also discuss the ways that my class status intersected with my race/ethnicity, gender, geographic re- gion, and sexual orientation. As I explore these identities and intersections, I endeavor to link the ways I specifically benefitted from previous social justice movements, such as the civil rights movement, women’s liberation movement, Indian liberation movement from British colonialism, and labor rights movements in both the United States and In- dia. I welcome personal questions from students at the end of the presentation, and then I take further questions about the assignment. For the students’ presentations of their Social Justice Quilts, I intentionally schedule the presentations at the beginning of each class in order to ensure that we as a class infuse feminist philosophies of the “personal is polit- ical” into each class. I then have the ability to weave the personal examples of benefiting from social justice move- ments from students’ own lives into the more general class discussions. For instance, if we are discussing theories of counseling and psychology, I integrate a class exploration of how issues of privilege and oppression they identified in the Social Justice Quilts are connected to the topic. I invite each student in these discussions to identify personal biases and assumptions they hold (or have held in the past) about social justice issues (e.g., immigration reform, reproductive justice). Overall, the students’ presentations have been creative, forward thinking, inspiring, and emotional. For instance, a White heterosexual student in her late 20s who is a mother explored the complex intersections in her life of both priv- ilege (White, married to a man, Christian) with her expe- riences of being a woman and a mother. In terms of an identity that is typically marginalized, her gender, this stu- dent explored specific ways she was not connected to the women’s liberation movement and did not have information about this movement throughout her high school and col- lege experiences. This student discussed the isolation she has felt as a woman and mother, and how various privileged identities might have brought her access to resources, but did not mitigate the feelings of being “othered.” She also shared a renewed interest in reading about the women’s liberation movement and specifically becoming involved in third wave feminist movements. From Social Justice Learning to Action As hooks (2003) reminds us, feminist pedagogy at its best inspires not only social justice awareness, but also social justice change. One of the most rewarding aspects of the students’ sharing of their Social Justice Quilts has been witnessing how they integrate their own personal learning about advocacy into the ways they interact professionally with clients and personally with their kinship and peer net- works. For instance, one student (White woman) who works in school settings shared the following reflection about her transition from awareness to action in compiling her Social Justice Quilt project: I used to think, “Why is there a Black History month? There isn’t a White History month.” Now I see that everyday, every month is White History something. I would have also described myself as open-minded and accepting of others, but now that my perspec- tive has changed, I realize that I was accepting of others as to what I was comfortable accepting or I was open-minded about what topics I was comfort- able being open-minded about. Now, I make sure to speak up in school meetings about White priv- ilege. I talk to my family and friends about what I have learned. It’s hard for them to understand, but I can’t keep silent anymore. Now, I include issues of privilege and oppression in my case in- takes and write-ups. I track how oppressive experi- ences influence my clients’ achievement, hopes, and dreams. Interestingly, the Social Justice Quilt assignment also helps students who have typically seen themselves as hav- ing little privilege in their lives to see how they may have not considered privileged statuses they do have. Recog- nizing this privilege, these students often feel empowered by their Social Justice Quilts to use these statuses to in- teract differently with their clients even when identifying these privileged identities may be challenging. One student (African American man) shared: This assignment has been challenging. It was difficult to talk about some of my past experiences of privilege in being heterosexual because they are still so painful, especially when I bullied others because they were gay. However, I felt I needed to be completely honest in describing these experiences not only because they have created the impetus for my advocacy, but also because they have limited me in some ways from being as strong of an advocate as I would like to be. Now, people at work joke that I won’t stop talking about being a LGBTQ-ally. They can joke all they want. I won’t go back to being ignorant or not helping the LGBTQ kids. It would be criminal. PWQ Teaching Briefs, December 2010 553 Implications for Feminist and Social Justice Pedagogy There are several implications of the Social Justice Quilt for feminist and social justice pedagogy. As the field of counsel- ing and psychology recommits itself to values of social jus- tice, the inclusion of feminist practice, theory, research, and advocacy often becomes invisible to these discussions. The Social Justice Quilt breathes life into feminist pedagogy, constructing a space where students can inspire themselves to learn about the importance of feminist movements and their relationship to social justice values. Because many of the students in the class may not have previously learned about issues of social justice and their relationship to coun- seling and psychology, these discussions have the potential to become overwhelming to students. Therefore, instruc- tors using this activity should take an initial pulse of stu- dents’ knowledge of these issues at the beginning of class to assess the range of social justice awareness and knowl- edge. Then, instructors can ensure that students who are new to this topic and/or who have great passion for social justice advocacy may explore how to balance attention to social justice issues in the practice of counseling and psy- chology. Additionally, when instructors and students discuss so- cial justice issues in counseling and psychology, these dis- cussions often focus on the future action and social change that counselors and psychologists may engage in as helping professionals. This focus on students’ future roles as social change agents is indeed important; however, it can be chal- lenging for student trainees to understand the real impor- tance and meaning that social justice movements have for everyday people, human rights, and policy changes with- out understanding past history and her-story. The Social Justice Quilt supports a balance between two forces. One force looks back, so that students can “see” themselves in the history and her-story of liberation. The second force looks forward, so that they can see how they hold the prod- ucts of liberation (e.g., opportunities, resources, access) in addition to holding the power to create change on behalf of others. Finally, the Social Justice Quilt combines the best features of feminist pedagogy, such as attention to reflex- ivity, instructor power, and collaborative relationships with students in the construction of knowledge. In addition, it also provides an ongoing accountability check for the im- portance of making the “personal is political” in becoming a social change agent. REFERENCES Goodman, L. A., Liang, B., Helms, J. E., Latta, R. E., Sparks, E., & Weintraub, S. R. (2004). Training counseling psychol- ogists as social justice agents: Feminist and multicultural principles in action. The Counseling Psychologist, 32, 793– 837. Hooks, B. (2003). Teaching community: A pedagogy of hope. New York: Routledge. Kimmel, E., & Worell, J. (1997). Preaching what we practice: Principles and strategies of feminist pedagogy. In J. Worell & N. Johnson (Eds.), Shaping the future of feminist psy- chology: Education, research, and practice (pp. 148–154). Washington, DC: American Psychological Association. Prilleltensky, I. (1997). Values, assumptions, and practices: As- sessing the moral implications of psychological discourse and action. American Psychologist, 52, 517–535. Singh. A. A., Hofsess, C. D., Boyer, E. M., Kwong, A., Law, A. S. M., McLain, M., et al. (2010). Social justice and counseling psychology: Listening to the voices of doctoral trainees. The Counseling Psychologist, 38, 766–795. Stake, J. E., & Hoffman, F. L. (2000). Putting feminist pedagogy to the test: The experience of women’s studies from student and teacher perspectives. Psychology of Women Quarterly, 24, 30–38. Sue, D. W., & Sue, D. (2008). Counseling the culturally diverse: Theory and practice (5th ed.). New York: Wiley. SUPPORTING INFORMATION The following supporting information is available for this article online at http://onlinelibrary.wiley.com/ journal/10.1111/(ISSN)1471-6402: Dr. Singh’s class syl- labus. Anneliese A. Singh, Ph.D., LPC, is an assistant professor in the department of Counseling and Human Development Services at The University of Georgia. Her research inter- ests include training and supervision on social justice issues in counseling and psychology. TEACHING CRITICAL THINKING ABOUT PSYCHOLOGY OF SEX AND GENDER In 1980, Professor Ronnie de Sousa, then head of the Uni- versity of Toronto Women’s Studies Programme, invited me to coordinate a course he had conceived, to be called “Scientific Perspectives on Sex and Gender.” I accepted on the condition that we teach it from a strong critical think- ing perspective. At that time, there was one full-year core course in Women’s Studies focused on history, philosophy, and literature and film. Dr. de Sousa’s plan was to focus a second full-year core course on the ways that researchers and theorists from the sciences—specifically, psychology, biology, and anthropology—investigated questions related to sex and gender. That year (and for some years thereafter), I coordinated that second course and gave the one-third of its lectures that were about psychology. Despite the important work of many second wave fem- inists, the vast majority of students who enrolled in the course had a great many beliefs about sex and gender dif- ferences in emotions, attitudes, cognition, and behavior Address correspondence and reprint requests to: Paula Ca- plan, 26 Alpine St. Cambridge, MA 02138. E-mail: paulacaplan@ gmail.com 554 PWQ TEACHING BRIEFS, DECEMBER 2010 for which there was little or no solid support from well designed, well executed, and responsibly interpreted research. Rather, their beliefs came partly from the mes- sages in popular media and partly from academic journals. I considered it important to have no prerequisites for the course. However, many students began with consid- erable anxiety about their ability to understand and think critically about scientific material. Thus, it was important to instill in them some confidence about approaching the topics in the course and applying a critical thinking ap- proach. Indeed, when I taught this material at Harvard University very recently, students who had been concen- trating in Psychology for two years or more reported that this was the first time they had been asked to think critically about psychological research. Some found it at first discon- certing to be asked to switch from the mental set that one student described as “the professor tells us what to read that is important and just learn it.” Despite some initial discomfort, however, most said that they ultimately found it liberating to be asked to think critically. Many said that the approach helped them understand the uneasiness they had experienced with some of the material that professors had assigned and discussed as though it represented facts, even though the studies sometimes were poorly conceived and designed and/or included unwarranted interpretations of data. Beginning with the first year that I taught the course at the University of Toronto, I found it frustrating that so little critique had been written about the psychological research about sex and gender. Ultimately, I co-wrote a book entitled Thinking Critically About Research on Sex and Gender, which was intended to fill this need (Caplan & Caplan, 1994). Two more recent editions of the book have subsequently been published (Caplan & Caplan, 1999, 2009). An important early step is to explain that there is noth- ing magical about critical thinking. This point has been true from the first time I co-taught “Scientific Perspectives on Sex and Gender” at the University of Toronto through my most recent teaching of it (as “Psychology of Sex and Gen- der” at Harvard University). As Jeremy B. Caplan and I have written (Caplan & Caplan, 2009), if one were walking along the sidewalk and saw a dog suddenly zoom straight up from the sidewalk into the air, certain questions would immediately come to mind (such as “What happened to gravity?”). Critical thinking about scientific theory and re- search is nothing more than logical, careful thinking, some of which requires no special training or information and some of which is easier once one knows some methods, principles, and conventions. It is also helpful for the student to understand that re- search about sex and gender is not free from subjectivity and bias. To convey this point, some historical perspective is useful. Students find it easier to spot the flaws in research from the 19th or early 20th centuries (Caplan & Caplan, 2009, Chapter 2) than in contemporary research. They can begin by reading about 19th-century researchers’ tireless efforts to discover some part of the brain where men’s su- perior intelligence resided and the way their theories and methodologies became protean as they repeatedly failed to make such a discovery. Often, they are amused by these long-ago researchers’ persistence and puzzled by the tenac- ity with which they clung to the claim of males’ superior intelligence and brains, despite evidence to the contrary. Thus, they have an interesting foundation for discussing contemporary efforts to discover a consistent sex differ- ence between the brains of girls and women and those of boys and men. This background makes it relatively easy to notice parallels between the two lines of research and the similarities of their flaws in theory, methodology, and interpretation of data (Caplan & Caplan, 2009, Chapter 3). It is important to say at the beginning of this course: “Virtually everyone believes certain things about sex and gender and sex differences to be true, but a major goal of our course is to find out what is accurate, based on the qual- ity of the research.” This is not like learning solid geometry or particle physics, because all our lives we are flooded with information about what we should and should not do and feel, depending greatly on whether we are classified as female or male. So, I say, “This course will resonate in an astonishing number of ways with your own life. Some will be positive, even liberating, but others may be deeply disconcerting. So, hold on to your hats.” I have sometimes had students tell me, even close to tears, that it is upset- ting to be asked to question so much of what they have always believed, especially because they often are not sure what to believe instead. For instance, they want to know, if men are not naturally aggressive and women naturally self-denying and patient, then what do we know about dif- ferences between them in these traits? Where will we find the certainty that can be somewhat comforting, even if lim- iting? My response begins with: “It is important to make decisions based on what is known, as well as on knowing what is not yet known. I would prefer to avoid making de- cisions based on unfounded claims about sex differences, no matter how widely they may be believed.” It is also im- portant to help students consider that their decisions about people’s behavior should be based on real understanding of research, rather than on irrelevant factors. Lest students believe that the instructor is simply a cur- mudgeon who refuses to say that some research is well done, it is important to say that some research is quite good. However, it is genuinely challenging to carry out re- search about human behavior. If this research is conducted in a laboratory, where many variables can be controlled, then it may be well done but help us little in understand- ing the real world. However, if it is carried out in the real world, then such a multitude of factors can influence the results that it is often difficult to know just what one can learn from such research. I explain that this does not mean that we should give up hope for carrying out high-quality research but only that we must understand the limitations PWQ Teaching Briefs, December 2010 555 of that endeavor and realize that perfect single studies are nonexistent. From the first meeting of this course, it is important to jump in immediately to talk about research questions, de- signs, and interpretations of results. One should not assume that using an extremely simple example will come across as silly or condescending. In fact, it is an effective way to ease them into a critical thinking approach and to provide an immediate experience in which they can recognize their ability to think critically. For instance, I tell them about the 7-year-old children with whom I first tried this approach (Caplan, Secord-Gilbert, & Staton, 1990; Caplan & Caplan, 2009). (Sometimes they are interested to learn that that took place with the third-grade class of my son, Jeremy Benjamin Caplan, who at 16 coauthored with me Thinking Critically About Research on Sex and Gender (Caplan & Caplan,1994) and who is now a cognitive neuroscientist at the University of Alberta.) After this description, I ask them to read and discuss Chapter 3 in Thinking Critically About Research on Sex and Gender, which my son wrote as an accessible way to introduce students to a great many of the most common methodological errors. In that chapter, he examines the question of whether there are sex differences in strength. Through that example, he describes numerous problems of methodology, ranging from choosing what to study, to designing the research, to carrying out the study, to inter- preting the results. That hypothetical example paves the way for discussion of actual studies and critiques of their methodology that we model in lectures with ample class participation. The class also reads chapters of the Caplan and Caplan (2009) book about particular topics, including research allegedly showing sex differences in certain emotions, certain kinds of behavior, cognitive performance, and the brain. It is helpful to introduce a simple document such as “How to Do a Critique” (see the Appendix) and to help students think through the steps involved in considering a study’s value. It is also helpful to introduce variety in the kinds of arti- cles you discuss and ask them to critique, including reports of research that appear in popular media and in schol- arly journal articles. Students can use the “How to Do a Critique” document and the chapter about methodologi- cal errors from the Caplan and Caplan (2009) book. For still more practice in discussion sections, students can be encouraged to bring in popular and scholarly articles for critical analysis. Early in the course, I have students work in small groups with the following instructions: Choose a topic related to sex and/or gender that in- terests you, and then within that topic area, choose a hypothesis or research question to investigate. To- gether, design the best study you can think of to test that hypothesis or address that question. Pro- duce a written description of your study, including the hypothesis or research question and the design of the study with regard to the participants, instru- ments or interventions, and procedures. Then, using the approach we have been employing in class, write a critique of your study. No piece of psychological research is ever perfect, and most are far from it, so do not be concerned when you notice that yours has flaws or limitations. [Depending on the course, I may ask the students to write their critiques individually or as a group.] Hand in the description of the study and the critique together. Time permitting, each small group can trade research designs with another group and critique each other’s design, a particularly good exercise for discussion sections. Also time permitting, students might design a simple enough study that they can actually carry out, such as observa- tions in a dining hall. Thus students acquire experience in identifying real-life limitations of executing even the best- conceived research. Then they write a critique that includes some of those limitations that they had not foreseen. When students design their own study, they understand some of the difficulties in trying to produce high-quality research about psychology of sex and gender. This project also re- lieves some of their uncertainty about whether they are qualified to understand and critique research. A next step is to choose an article from a popular medium and ask the students to write a three-page critique, again using the “How to Do a Critique” document as a guideline. I sometimes compare this exercise to workbooks’ “What’s Wrong With This Picture?” exercise, in which children are asked to identify all of the problems they can find. The instructor must provide very detailed feedback to the stu- dents so that they can see which steps from the critique document they have followed well and which steps require greater attention. Later in the course, I choose an article from a scholarly journal for the students to critique in the same way. During this time, in lectures and discussions, we use portions of many chapters in the Caplan and Caplan (2009) book. I often compare and contrast at least two articles of different quality about a given topic. This exercise gives students a sense of the problems in research about topics such as sex differences in mathematical abilities. They can also learn how the choice of research question, study design, and responsible interpretation of data can contribute to higher-quality work. One essential topic that is rarely addressed in writing about research on sex differences and similarities is that of intersex people, those who do not fit the usually strict def- initions of biological femaleness or of biological maleness (Fausto-Sterling, 2000). As Jeremy B. Caplan and I point out, the existence of people who are intersex has the potential to revolutionize the field of psycho- logical sex differences, because virtually every study 556 PWQ TEACHING BRIEFS, DECEMBER 2010 of psychological “sex differences” has been based on the erroneous assumption that only typical females and males were studied. Researchers in these stud- ies have virtually never done chromosomal analyses or physical examinations to determine a participant’s sex, and when classification by sex has been based on “Check one: male or female,” many intersex people have not even been aware that they were intersex and thus would have reported the sex to which they were assigned at birth. This is especially important, because those psychological sex differences that have been reported have usually been so small. . . . Keeping in mind that intersex people vary greatly from each other, how might that alter the picture? . . . there is simply no way to know how their inclusion in studies has altered the field (p. 8). Having raised this matter, it is useful to return to it every time research about a new topic is introduced. Depending on the class size, I ask students to give oral presentations during lecture or discussion sections. Each presentation lasts no more than 12–15 minutes. The stu- dent chooses two pieces of research about a particular topic related to sex and gender. One must be better designed, executed, and/or interpreted than the other. The presenta- tion includes a concise but clear description of each study, including whatever listeners need to know in order to un- derstand the critique that the presenter then offers. This exercise provides a good foundation for students in writ- ing the final paper for this course, as well as for writing literature reviews for theses and dissertations. The final essay for the course is a 12- to 15-page paper. I explain that this paper must be very carefully thought out, well organized, and efficiently written. The paper must be based on 8–10 research articles about one topic they choose. They can select these articles in a number of ways, such as two reports from each of the past four or five decades or else the best research reports about the topic that the student can find, combined with the worst. I strongly advise stu- dents before writing the paper to read each of the research articles and take extensive, careful notes using the “How to Do a Critique” approach. This strategy provides a clear view of the strengths and weaknesses of each study and of whether any studies are so seriously flawed that we can learn nothing from them. In writing the paper, students should look for ways to critique the body of studies effi- ciently. For example, they may describe in some detail one, two, or three of the studies and their flaws. Then they can more briefly compare and contrast the subsequent studies to their initial study. Or they may list all of the kinds of problems found in one or more of the studies, and then say which studies include which problems. Where relevant and illuminating, they should also mention studies’ strengths. Crucial to the paper is to compare what each paper’s authors claim their research shows with what—given the paper’s limitations—their research legitimately does show. The paper should end with one or a few sentences that many students find to be the most difficult to write: a “state of the science” statement. This statement is the student’s opinion about what, given the pros and cons of each study, one can confidently say is definitely known about the topic. By the time the reader reaches that final statement, the student’s evaluative descriptions of the research reports should be extremely clear. In fact this final statement should come as no surprise; rather, it should be a crystal-clear digest of the preceding pages. I give a final examination when I teach this material to undergraduates. About one-third consists of short-answer identification items, designed to encourage students to do the reading. The remainder consists of a single essay ques- tion. For the essay, I construct an article that is written as though it comes from a scholarly journal or presenta- tion. This article includes as wide a variety of problems as possible, including (a) citation of previous research with- out questioning its quality or the conclusions its authors reached; (b) biases in choosing the research question; (c) problems in logic when shifting from existing literature to hypothesis or research question; (d) problems in whether the research design follows logically from the hypothesis or research question; (e) problems of various kinds within the design itself; and (f) unwarranted or inadequate inter- pretations of the data. The student’s task is, on the spot, to write a critique of that paper. (An example created with Kathryn Morgan and other instructors is available online.) It is important to include specific instructions on the actual examination that they must not just criticize the authors for not choosing a different topic or for not conducting a larger study. As a result of the elements of this kind of course, stu- dents acquire depth of practice in thinking critically about research on sex and gender. REFERENCES Caplan, P. J., & Caplan, J. B. (1994). Thinking critically about research on sex and gender. New York: Harper Collins. Caplan, P. J., & Caplan, J. B. (1999). Thinking critically about research on sex and gender (2nd ed.). New York: Addison Wesley Longman. Caplan, P. J., & Caplan, J. B. (2009). Thinking critically about re- search on sex and gender (3rd ed.). Boston: Allyn & Bacon. Caplan, P. J., Secord-Gilbert, M., & Staton, P. (1990). Teaching children to think critically about sexism and other forms of bias. Toronto: Green Dragon Press. Fausto-Sterling, A. (2000). Sexing the body: Gender politics and the construction of sexuality. New York: Basic Books. SUPPORTING INFORMATION The following supporting information is available for this article online at http://onlinelibrary.wiley.com/ PWQ Teaching Briefs, December 2010 557 journal/10.1111/(ISSN)1471-6402: Caplan, Morgan, et al.’s final exam research critique. Paula J. Caplan, Ph.D., is a clinical and research psy- chologist currently affiliated at Harvard University with the DuBois Institute and the Kennedy School of Government’s Women and Public Policy Program. APPENDIX: HOW TO DO A CRITIQUE 1. Read the article carefully. Read it at least three more times, making notes as you go, about the authors’ claims and the questions that come to mind. 2. Identify theoretical assumptions the authors make. These may be either explicitly stated or implicit. Con- sider whether or not these make sense and seem true. Furthermore, are there any internal inconsistencies within the theory? 3. What predictions do they make or hypotheses do they state? Do they follow from the theory? Are they clearly stated? 4. Method: Was the study designed and carried out in a way that actually allows the authors to test their predictions or hypotheses? Is it clear what the authors actually did in the study? Are there problems with the way the study was designed? 5. Results: Were the results analyzed appropriately? Are the methods of analysis clearly described (either in the Method or the Results section)? Are the results clearly presented? 6. Discussion: Do the authors’ conclusions follow from the results they obtained? Are there any rival hypothe- ses that could adequately explain the results? Note: DO NOT criticize the authors for not choosing a different topic or doing a larger study UNLESS their predictions/hypotheses cannot be tested using the study they designed. Copyright of Psychology of Women Quarterly is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. 
work_eoql43uylzddhjmndsxriumzpq	----	Race and the Criminal Justice System: An overview to the complete statistics 2004–2005 Section 95 Criminal Justice Act 1991 Race and the Criminal Justice System: An overview to the complete statistics 2004–2005 March 2006 Section 95 Criminal Justice Act 1991 Race and the Criminal Justice System: An overview to the complete statistics 2004–2005 March 2006 ii Section 95 Statistics 2004/5 on Race and the Criminal Justice System (1) The Secretary of State shall in each year publish such information, as he considers expedient for the purpose of: (a) enabling persons engaged in the administration of justice to become aware of the financial implications of their decisions; or (b) facilitating the performance of such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground. (2) Publication under subsection (1) above shall be effected in such a manner, as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the persons concerned. This report was prepared by Batool Reza and Christine Magill and published by the Criminal Justice System Race Unit. Further copies are available from: Criminal Justice System Race Unit 2 Marsham Street London SW1P 4DF Email: CJSRACE@homeoffice.gsi.gov.uk This publication is available on the Home Office website http://www.homeoffice.gsi.gov.uk/rds © Crown copyright 2006 ISBN x xxxx xxxx Criminal Justice Act 1991 section 95 Section 95 Statistics 2004/5 on Race and the Criminal Justice System iii We, the Criminal Justice Ministers, are pleased to publish this update of the Overview to the Section 95 and CJS statistics. This report summarises the most recent statistics available on race and Criminal Justice and seeks to put in context what this reveals about BME groups’ experiences across the CJS. We want to build a society where there are equal opportunities for all. An essential part of this is for all those organisations responsible for delivering criminal justice to make sure they promote equality; do not discriminate against anyone because of their race; that the people who work for them are representative of the population; and that the system is effective in tackling racism and racist crime. We have made enormous progress in recent years strengthening the legal framework against discrimination, improving diversity training and toughening up our recruitment processes to make sure racists cannot get into CJS agencies, making the CJS more representative of the communities it serves; and improving how we investigate and prosecute hate crime. However we are not complacent and realise we still have a lot to do. These statistics show people from BME communities continue to be over- represented in the criminal justice process and are less likely than White people to be confident that the CJS will treat them fairly. Chapter six of this report outlines the variety of activities we are undertaking to continue to address inequalities. We believe the Overview Report and the Section 95 statistics are crucial measuring tools in moving towards an equitable Criminal Justice System. We will continue to encourage joint working between agencies and communities to deliver an impartial, fair and effective system to all. Secretary of State for Constitutional Affairs Attorney General Home Secretary Foreword by Ministers iv Section 95 Statistics 2004/5 on Race and the Criminal Justice System This report provides an overview of the key findings from the detailed publication Statistics on Race and the Criminal Justice System – 2005. It updates the summary of 2003/04 statistics published in February 20051, and looks specifically at what has changed and what has stayed the same. The data reported show that progress continues to be made in relation to the proportion of staff from Black and Minority Ethnic (BME) groups working in the Criminal Justice System (CJS). However, other areas remain largely unchanged with BME groups continuing to be disproportionately represented in the CJS. When interpreting the data, it is important to note that people from BME groups are often disadvantaged in social and economic terms compared to the White population. This disadvantage relates to factors such as housing, education and employment; factors that are in part predictive of offending behaviour and general involvement in the criminal justice process. Data concerning ethnicity and crime needs to be treated with extreme caution2 because the data may be inaccurate or missing altogether (as many crimes may be unreported or the ethnicity of the perpetrator unknown). However, evidence suggests that the imbalance is not simply the result of people from BME groups committing a disproportionate number of crimes.3,4 There is not, as yet, sufficiently robust data and evidence from which to reach definite conclusions as to the cause, or causes, of the disproportionate representation of BME groups observed in the data described. What is clear from the data is that disproportionality continues to be a key issue meriting further investigation. Main findings: Experience as users of the CJS ● The 2004/05 BCS shows that people from Mixed ethnic groups face significantly higher risks of crime than White people. However, there were no other statistically significant differences between people from different ethnic backgrounds. ● The 2004/05 BCS shows that people in BME groups were significantly more likely than White people to be worried about burglary, car crime and violent crime. Summary 1 Barclay et al (2005) Race and the Criminal Justice System: An overview to the complete statistics 2003/4. London. 2 Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman. 3 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 London: Home Office. 4 Aust, R, & Smith, N. (2003). Ethnicity and drug use: key findings from the 2001/2002 British Crime Survey. Findings 209. London: Home Office ● Racist incidents recorded by the police have continued to rise with nearly 60,000 incidents recorded in 2004/05, although the latest information from the BCS (self-reported crime) estimates that actual numbers of racist incidents fell from 206,000 in 2003/04 to 179,000 in 2004/05. ● There were 37,000 racially aggravated offences recorded in 2004/05. Just over a third of these offences were cleared up by the police – a similar proportion to previous years. ● In the three years 2002/03, 2003/04 and 2004/05, the police recorded 2,565 homicides. Wide disparities in risks exist for different ethnic groups. Black people were 4.5 times more likely and Asian people nearly twice as likely to be homicide victims as White people (excluding Shipman cases). Experience as suspects, defendants and prisoners ● There were 838,700 stop and searches recorded by the police under section 1 of the Police and Criminal Evidence Act 1984 and other legislation in 2004/05. This is a 14% increase on the previous year. ● Black people were six times more likely to be stopped and searched under Section 1 compared to White people, Asian people were as twice as likely to be stopped and searched. These rates are similar to previous years. ● In 2004/05, 41,300 searches were recorded by the police under Section 60 of the Criminal Justice and Public Order Act 1994 in 31 police force areas. ● Black people were 14 times more likely to be stopped and searched under Section 60 compared to White people whereas Asian people were six times more likely to be searched. ● In 2004/05, 32,086 searches were recorded by the police under Section 44(1) and Section 44(2) of the Terrorism Act 2000. ● Black people were 2.5 times as likely to be stopped and searched under the Terrorism Act when compared to White people in 2004/05 (down from three times more likely in 2003/04). Asian people were twice as likely to be stopped and searched under these powers than White people; again down from three times in 2003/04. ● The police cautioned 237,323 persons for notifiable offences in 2004. National cautioning rates were similar for Asian, White and Other ethnic groups, whereas the rate for Black people was almost three times that for White people. ● BME groups were more likely than White people to be committed at magistrates’ court to be tried by a jury at the Crown Court (20% for Black people, 30% for Asians and 15% for White people). BME defendants were substantially more likely to be acquitted at the Crown Court than White defendants (29% for Black people, 30% for Asians and 22% for White people). ● Black young offenders and those in the Mixed ethnic group were more likely to receive a community sentence compared to White offenders but less likely to be discharged or given a referral order. ● Black and Asian offenders accounted for 6% and 4% of persons starting court order supervision, with 2% and 1% respectively accounting for by the Mixed or ‘Chinese and other’ ethnicity. ● Excluding foreign nationals, the proportion of Black prisoners on 30 June 2005 relative to the population five times higher than for White people. Similarly, people from Mixed ethnic backgrounds were more than twice as likely to be in prison than their White counterparts. ● The number of deaths recorded for Black people has continued to fall from 16 people in 2002/03, 7 in 2003/04 to 4 in 2004/05. Section 95 Statistics 2004/5 on Race and the Criminal Justice System v Working in the CJS ● The representation of BME groups working for the criminal justice agency has improved in recent years. In 2004/05 the CPS, Police, Prison and Probation Services all recorded an increase in the percentage of BME staff on the previous year. Similarly, the percentage of BME staff also increased in the Crown and magistrates courts. Confidence in the CJS ● People from an Asian or ‘Other’ ethnic background were the most likely to rate the criminal justice agencies as doing a good or excellent job. ● Relative to White people, people from BME groups reported higher levels of perceived discrimination within the Criminal Justice System. Thirty-one per cent of people from minority ethnic groups feel that they would be treated worse than people of other races by one or more of the five Criminal Justice System organisations. This shows no significant change from 2001 (33%) or 2003 (31%). There has, however, been a statistically significant decrease in the percentage of people from minority ethnic groups who feel they would be treated worse than other races in four of the five organisations (the Courts, CPS, the Police and the Prison Service). vi Section 95 Statistics 2004/5 on Race and the Criminal Justice System Section 95 Statistics 2004/5 on Race and the Criminal Justice System vii Page Foreword iii Summary iv Chapter 1: Introduction 1 Chapter 2: The experience of people from BME groups as users of the Criminal Justice System 3 Chapter 3: The experience of people from BME groups as suspects, defendants and prisoners 9 Chapter 4: The experience of people from BME groups working in the Criminal Justice System 23 Chapter 5: Confidence in the Criminal Justice System among people from BME groups 27 Chapter 6: What is being done? 30 References 35 Contents Section 95 Statistics 2004/5 on Race and the Criminal Justice System 1 Since 1992 the Home Office has published statistical information to meet the requirement under Section 95 of the 1991 Criminal Justice Act. The aim of these publications is to help those involved in the administration of justice to avoid discrimination on the grounds of race. An additional publication to the 2002-3 statistics was published in July 2004 to present both an overview5 of the statistical information and also a more general assessment of the experience of Black and Minority Ethnic (BME) groups within the criminal justice system in England and Wales. The current document aims to highlight the main national changes that have taken place between 2003-4 and 2004-5 in both the statistical indicators and also in the development of policy and practice. The companion document Statistics on Race and the Criminal Justice System available on the Home Office RDS website includes breakdowns by police force areas. This report presents summary data describing the experiences of BME groups not just as victims, suspects and offenders but also as employees within the criminal justice system. For the moment, ethnic monitoring data are collected using a broad classification system.6 As a consequence, we lack detailed information on the experiences of specific ethnic categories, and on the particular problems, within distinct geographical areas. The population figures used in this report were derived from the mid year 2004 population estimates produced by the Office for National Statistics and weighted using the 2001 Census.7 This showed the proportions of the population aged 10 years and over across England and Wales as 91.3% White; 2.8% Black; 4.7% Asian and 1.2% ‘Other’. When interpreting the data, it is worth noting that people from BME groups are often significantly disadvantaged in social and economic terms compared to the White population, although there is considerable variation between and within each ethnic group. For example, Chinese and Indian groups tend to suffer little or no economic disadvantage relative to White groups; Black Caribbean, Bangladeshi and Pakistani groups suffer a range of severe forms of disadvantage, as do Black African groups, albeit to a lesser degree.8 This disadvantage relates to factors such as employment, housing and education; factors that are in part predictive of offending behaviour and general involvement in the criminal justice process. C h a p t e r 1 : Introduction 5 Hearnden, I., & Hough, M. (2004). Race and the Criminal Justice System: An overview to the complete statistics 2002/3. London: ICPR. 6 The Home Office has commissioned an independent review of how ethnic monitoring data are collected, which reported in 2005.The Root and Branch Review is due to be published shortly and once due cosideration has been given to the report’s recommendations, changes may be introduced in future years. 7 The 2001 Census was based on 16 categories (including Mixed). In order to make comparisons with the population where data was only collected for four groups (White, Black, Asian, Other) the Mixed category was divided between these categories as described in Statistics on Race and the Criminal Justice System 2005 – see Appendix B. 8 Phillips, C. & Bowling, B. (2003) Racism, Race and Ethnicity: developing minority perspectives in criminology, British Journal of Criminology 43, no.2, pp 269-290. Unemployment rates for people from BME groups are generally higher than those from White ethnic groups. There are differences within the BME group with unemployment among the economically active; rates are high for Black Caribbean, Black African, Bangladeshi, Pakistani and Mixed groups and low for Indian and Chinese groups. People from minority ethnic groups are also more likely than White people to live in low-income households. Again, there is considerable variation among the different ethnic groups. Pakistanis and Bangladeshis are much more likely to be living on low incomes. In terms of education, Chinese pupils are most likely to achieve five or more GSCE grades A*-C with Indian pupils achieving the next highest achievement levels. The lowest level of GCSE attainment is amongst Black Caribbean pupils, particularly boys. Black pupils are more likely to be excluded from schools than children from other ethnic groups.9 How ethnicity is monitored in the Criminal Justice System Ethnic monitoring in criminal justice agencies relies on a variety of recording methods and classification systems. Since 1 April 2003 a standard system of recording has been introduced into all agencies based on self-classification into one of 16 categories used in the 2001 Census. This approach allows direct comparisons to be made between criminal justice data and census data. Classification is based around five main groups: White, Mixed, Black, Asian and ‘Other’. The Mixed group mainly includes those of Black and White origin and Asian and White origin. The change to self-classification has been particularly difficult for the police to implement since it has involved collecting data on ethnicity directly from a suspect on the street. As a consequence, a high proportion of data on ethnicity is missing. In view of this problem, the presentation of police data continues the previous practice of using visual assessments and the four groups Asian, Black,White and Other. For other sources, e.g. household surveys (such as the British Crime Survey), prison receptions and the monitoring of those who work in criminal justice agencies, the 2001 Census categories and self-classification have already been successfully introduced. The aim is to introduce use of the 2001 categories across the entire criminal justice system over the next 2-3 years. 2 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 9 White, A. (2002) Social Focus in Brief: Ethnicity 2003, London: ONS. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 3 People seek the services of criminal justice agencies for various reasons. The most obvious is to notify the police of a crime but for many it may be as a witness, member of a jury or as a lay magistrate, prison visitor or victim support volunteer. Experience as crime victims The British Crime Survey (BCS) is a large face-to-face household survey asking about people’s experience and perceptions of crime in the last 12 months in England and Wales. It also records whether or not a victim of crime perceived the crime to be racially motivated. In this chapter, results from the most recent BCS, that is 2004/05, are reported. Relevant findings from the analysis of earlier surveys, such as the BCS 2002/03 and 2003/04, are also reported. The 2004/05 BCS shows that there has been a fall in BCS recorded crime in England and Wales since its peak in 1995 (Nicholas et al, 2005). Against this background of declining crime, there are variations in the risks of victimisation experienced by different ethnic groups, as shown in Figure 2.1. The 2004/05 BCS shows that people from Mixed ethnic groups face significantly higher risks of crime than White people. However, there were no other statistically significant differences between people from different ethnic backgrounds.10 The levels of risk for people from White, Mixed and Asian ethnic groups fell substantially between 2003/04 and 2004/05. It should be noted that differences in the risk of victimisation between ethnic groups may be at least partly attributable to factors other than ethnicity. Previous analysis on the 2002/03 BCS showed that people from BME groups were at greater risk of total BCS crime, i.e. household crime such as burglary and theft in a dwelling, and personal crime such as common assault and robbery, than White people.11 However, that was largely explained by the younger age profile of the BME population and the fact that younger people experience higher rates of victimisation. Once age was controlled for the difference in risk between BME and White groups disappeared (Salisbury and Upson, 2004). The analysis of the 2002/03 BCS also showed that people in BME groups were at greater risk of personal crime compared with White people but not of household crime. Comparing risk across the individual groups, people from a Mixed ethnic or Asian backgrounds were at greater risk of victimisation than White people. After allowing for age the difference between Asian and White people disappeared. However, this was not the case for those of the Mixed ethnic group who continued to have higher risks of victimisation than all the other ethnic backgrounds even after controlling C h a p t e r 2 : The experience of people from BME groups as users of the Criminal Justice System 10 Statistical significance means that an observed difference between variables is unlikely to have occurred by chance. 11 The respondent answers on behalf of the whole household in the offence categories of: burglary; theft in a dwelling; thefts of and from vehicles; and vandalism to household property and vehicles. For personal offences, respondents report on their experience of: assault; sexual offences; robbery and theft from the person. The BSC does not cover personal crime against those aged under 16 or against those living in institutions. factors such as age and area of residence. This analysis is currently being updated with data from the 2003/04 and 2004/05 BCS and will be published in a forthcoming Home Office Research Findings.12 Figure 2.1(1,2) Risk of being the victim of a crime (2004/05 BCS interviews) (1) For household offences reported in the BCS, all members of the household can be regarded as victims. (2) For personal offences, the respondent reports only on his/her experience to the BCS. Worry about crime The 2004/05 BCS shows that people in BME groups were significantly more likely than White people to be worried about burglary, car crime and violent crime. In addition, people from Black, Asian, and ‘Chinese and Other’ backgrounds were more likely to worry about burglary and car crime than people from the Mixed ethnic group. Worry about car crime had decreased among White people, and the worry about violent crime had increased among the ‘Chinese and Other’ group between 2003/04 and 2004/05. 0 5 10 15 20 25 30 35 Chinese and otherBlack or Black BritishAsian or Asian BritishMixedWhite 24 29 26 24 23 Pe rc en ta ge v ic ti m s o nc e o r m o re 4 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 12 Jansson, K (forthcoming) Ethnicity and victimisation; findings from the 2004/05 British Crime Survey. Home Office Figure 2.2 Worry about crime by ethnic group (2004/05 BCS interviews) Racist crimes The experience of crime for those in BME groups, either as a victim or a witness to a crime, will include some crimes that will have been racially motivated. The latest information from the BCS (self-reported crime) estimates that in 2004/05 there were 179,000 racially motivated incidents (including those on White people), which is lower than the 2003/04 estimate of 206,000. Such incidents include the use of racist language, criminal damage and physical assaults. The police record information on racist incidents using a similar definition to the BCS, that is “any incident which is perceived to be racist by the victim or any other person” (Macpherson, 1999). Police statistics show a different result. Racist incidents recorded by the police increased from just over 10,000 in 1996/97 to nearly 50,000 in 1999/00. As shown in Figure 2.3, the number of racist incidents has continued to rise steadily over the last five years with nearly 60,000 incidents recorded in 2004/05. The sharp rise is thought to be the result of encouragement by all agencies and community groups for better reporting by victims and better recording by the police rather than an actual rise in the number of incidents. Although White people experience the highest number of incidents they are at a comparatively lower risk of racially motivated crime.13 0 5 10 15 20 25 30 35 Violent crimeCar crimeBurglary 11 15 27 26 27 12 17 27 30 29 14 31 37 34 37 Pe rc en ta ge w o rr ie d Chinese or otherBlackAsianMixedWhite Section 95 Statistics 2004/5 on Race and the Criminal Justice System 5 13 Salisbury, H. and Upson, A. (2004) Ethnicity, Victimisation and Worry about Crime: findings from the 2001/02 and 2002/3 British Crime Surveys. London: Home Office Research Findings No 237. Figure 2.3(1) Racist incidents recorded by police forces, percentage change on 1999/00 totals to 2004/05 (1) This figure shows indexed trends. The 1999/00 figure is indexed at 100. The numbers of racist incidents for each subsequent year are each expressed as a percentage of the 1999/00 figures. The 1998 Crime and Disorder Act identified certain offences of violence, harassment and criminal damage as racially aggravated; 37,074 such offences were recorded in 2004/05, of which, 61% were harassment, 24% crimes against the person such as wounding and common assault, and 15% criminal damage. The total number of offences was above that recorded in both 2002/03 (31,034) and 2003/04 (35,022). Just over a third (36%) of racially aggravated offences were cleared up by the police – a similar proportion to previous years (34% in 2003/04 and 34% in 2002/03). This is better than the 30% clear up rate for non-racially aggravated offences. However, the difference between clear-up rates is largely the result of the difference between the number of racially aggravated and non-racially aggravated criminal damage offences. Only for criminal damage offence was the clear-up rate for racially aggravated offences (20%) greater than for the non-aggravated equivalent (14%). For the other offences, that is, harassment, other wounding, and common assault, the reverse was true; the clear up rate was higher for non-aggravated offences than for aggravated offences. Only a small number (4,409 offenders) were cautioned or convicted by the courts for racially aggravated offences. This finding may reflect the difficulty of proving racial aggravation in court.14 60 76 92 108 124 140 2004/052003/042002/032001/022000/011999/00 100 111 114 103 111 124 In de xe d tr en d 6 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 14 Burnley, E. and Rose, G (2002) Racist Offences – how is the Law Working?: the implementation of the legislation on racially aggravated offences in the Crime and Disorder Act 1998, Research Study No 244. London: Home Office. The Crown Prosecution Service (CPS) also monitors prosecution and outcomes in all cases identified by the police or CPS as arising from a racial incident.15 It identified 5,788 of the cases they dealt with in 2004/05 as being racist incidents, 22% higher than in 2003/04. The police identified 91% of these cases, whilst the CPS identified the remaining 9% (the proportions for the previous year were 90% and 10%). Figure 2.4(1) Defendants received by the CPS, percentage change on 2000/01 totals to 2004/05 (1) This figure shows indexed trends. The 2000//01 figure is indexed at 100. The numbers of defendants for each subsequent year are each expressed as a percentage of the 2000/01 figure. Homicides Murder, manslaughter and infanticide (collectively referred to as homicide) are amongst the less frequent crimes in England and Wales. In the three years – 2002/03, 2003/04 and 2004/05, the police recorded 2,565 such offences. However, there are wide disparities in the risks for different ethnic groups. Excluding the 172 homicides of White people killed by Harold Shipman, Black people were 4.5 times more likely and Asian people 1.7 times as likely to be victims of a homicide as White people, the same as in the three years up to and including 2003/04. 60 80 100 120 140 160 180 200 2004/052003/042002/032001/022000/01 100 120 135 152 186 In de xe d tr en d Section 95 Statistics 2004/5 on Race and the Criminal Justice System 7 15 CPS (2005) Racist incident monitoring: Annual Report 2004/5 London: Crown Prosecution Service. Figure 2.5(1) Homicides per 10,000 population, combined data for 2002/3 to 2004/5 (1) Number of victims: White 1,750; Black 242; Asian 153; Other 108 (excluding Shipman cases) While the risk for White people was similar for males and females and all age groups, Black victims were predominately young men and a third were the victims of firearms.16 Figure 2.6(1,2) Apparent method of killing of currently recorded homicide victims by percentage, combined data for 2002/03, 2003/04, 2004/05 (1) Those recorded as homicide as at 28 November 2005 (2) Other category includes the 172 individuals killed by Harold Shipman. Sharp instrument 29% 8% 18% 8% 5% 32% 35% 4% 5% 4% 32% 20% White homicide victims Black homicide victims Blunt instrument Hitting/Kicking Strangulation Shooting Other 0.0 0.5 1.0 1.5 2.0 2.5 OtherAsianBlackWhite 0.4 1.8 0.7 2 Pe r 10 ,0 00 p o pu la ti o n 8 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 16 Bullock, K. and Tilley, N. (2002) Shootings, Gangs and Violent Incidents in Manchester: developing a crime reduction strategy. Crime Reduction Research Series Paper 13. London: Home Office. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 9 Evidence reviewed in this chapter shows quite clearly that people from BME groups are over-represented at each stage of the criminal justice process from initial contact to sentencing. Evidence also suggests that it is not to be because people from BME groups are more likely to offend.17,18 BME groups’ over- representation in the CJS is not unique to England and Wales. International reviews suggest specific minority ethnic groups are more likely to have contact with the system than majority groups.19 Figure 3.1 Proportion (%) of ethnic groups at different stages of the criminal justice process 2004/05 Criminologists have suggested several factors that might lie at the root of this observed disproportionality, including discrimination on the part of the police20, socio-demographic factors21, the suggestion that Black people spend more time on the streets than their White counterparts22, or police recording practices.23 Another possibility is that those in BME groups committing offences are detected to a greater extent by 0 10 20 30 40 50 60 70 80 90 100 Prison Population Prison Receptions Crown Court Young Offenders Cautions Arrests Stops & Searches Population over 10 White Black Asian Other/Unknown 91 3 5 1 75 14 7 2 84 9 5 1 84 6 4 1 85 6 3 3 76 13 7 4 77 14 5 4 81 10 5 3 C h a p t e r 3 : The experience of people from BME groups as suspects, defendants and prisoners 17 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 London: Home Office. 18 Aust, R, & Smith, N. (2003). Ethnicity and drug use: key findings from the 2001/2002 British Crime Survey. Findings 209. London: Home Office 19 Junger-Tas, J. & Marshall, I. H. (1999). The self-report methodology in crime research. In M. Tonry (Ed.), Crime and Justice. A Review of Research. Vol 25. (pp. 291-367). Chicago: The University of Chicago. 20 Smith, D.J., & Gray, J. (1985). Police and the Public. London: Gower. 21 FitzGerald, M. (1993). Ethnic Minorities and the Criminal Justice System. Royal Commission on Criminal Justice Research Study 20. London:HMSO. 22 FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. 23 FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. the criminal justice system as proportionally more of those BME groups are likely to be known to the police.24 Other authors have suggested that methodological and conceptual issues make it impossible to conclude that people from BME groups commit any more or less crime than White people.25 The current lack of robust ethnic monitoring data across the CJS, combined with the lack of unequivocal empirical evidence, make it impossible to provide a conclusive answer to the question of the root causes for this disproportionality. However, it is clear from the data that disproportionality continues to be a key issue meriting further investigation. Offending behaviour There is no consistent picture of whether there are differences in offending behaviour between ethnic groups that could explain the over-representation of BME groups. The BCS has asked victims to give their description of the ethnicity of ‘their’ offender. These results show a slight under-representation of Asian offenders, and a slight over-representation of Black offenders. The exception was victims of personal robbery where a Black person was said to be responsible for the attack in about a third of cases.26 Alternative methods of measurement based on self-reported criminal behaviour have their own methodological limitations, so results have to be treated with caution. However, findings from a self-report survey published in 2005 suggested that Black respondents had rates of self-reported offending that were either similar to or substantially lower than White respondents. It found that Black and Black British males in the general population aged 10 to 25 were no more or less likely to have committed an offence in their lifetime than White males of the same age. Moreover, the figures for offending in the last year suggested that Black male respondents in this age group were significantly less likely than White respondents to have committed an offence during this time period. The pattern for older male respondents aged 26 and above differs slightly – the lifetime offending rate was significantly lower in Black respondents compared with White, whilst the last year offending rate was similar across the two groups.27 Stop and searches Section 1 PACE An important ‘gateway’ for some offenders into the Criminal Justice System are the ‘stop and search’ powers granted under the terms of the Police and Criminal Evidence Act (1984) and other legislation. The disproportionate use of these powers on BME groups has been shown both by household surveys such as the British Crime Survey and also police statistics. Although police statistics provide a measure of the risk of being searched, they only record the total number of searches carried out each year and not the number of persons searched. Searches are carried out on only a small minority of the population, but one person may be searched many times in one year. There were 838,700 stop and searches recorded by the police under section 1 of the Police and Criminal Evidence Act 1984 and other legislation in 2004/05. This is a 14% increase on the previous year. This increase is apparent across all ethnic groups. Compared with 2003/04, there was a 15% increase in the number of searches on White people; a 9% increase for Black people, 12% increase for Asian people and 20% increase for people in the ‘Other’ ethnic group. This contrasts with the 2003/04 figures which recorded the first fall in the use of these stop and search powers since 2000/01. The trends in Figure 3.2 10 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 24 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 London: Home Office. 25 Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman. 26 Kershaw, C., Budd, T., Kinshott, G., Mattinson, J.,Mayhew, P. and Myhill, A. (2000) The 2000 British Crime Survey England and Wales. Home Office Statistical Bulletin 18/00. London: Home Office. 27 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 show that overall there has been a gradual decline in the number of White people stopped and searched since 1997/98. Whereas, for Black and Asian people the numbers of stop and searches are broadly similar to levels recorded in 1997/98. Figure 3.2(1) Persons stopped and searched under s1 Police & Criminal Evidence Act 1984, and other legislation, by ethnic group, percentage change on 1997/98 totals to 2004/05 (1) This figure shows indexed trends. The 1997/98 figure is indexed at 100. The numbers for each subsequent year are each expressed as a percentage of the 1997/98 figures. Figure 3.3 shows the number of searches carried out under section 1 PACE for the different ethnic groups expressed as a rate per 1,000 population. In 2004/05 Black people were six times more likely to be searched than White people. This is a similar rate to 2002/03 and 2003/04. Asian people, as in 2003/04 and 2002/03, were twice as likely to be searched as White people. The pattern and level of disproportionality has historically remained fairly constant although, as shown in Figure 3.2, the number of searches carried out by police forces has varied over time. 0 20 40 60 80 100 120 140 160 2004/052003/042002/032001/022000/011999/20001998/991997/98 In de xe d Tr en d White Black Asian Other Section 95 Statistics 2004/5 on Race and the Criminal Justice System 11 Figure 3.3(1) Persons stopped and searched under s1 Police & Criminal Evidence Act 1984, and other legislation, by ethnic group, per 1,000 population, 2002/03 to 2004/05 (1) Number of stop and searches under s1 in 2004/05: White 626,853; Black 118,187; Asian 59,995; Other 12,901 Number of stop and searches under s1 in 2003/04: White 547,369; Black 108,208 Asian 53,794; Other 10,796 Number of stop and searches under s1 in 2002/03: White 665,232; Black 118,548; Asian 58,831; Other 11,468 Figure 3.4 represents section1 statistics by individual police force areas. The grouping of areas adopts a similar approach to that used in Hearnden & Hough (2004). The areas have been grouped together into four bands on the basis of the total BME population in each police force area. For example, the City of London and Metropolitan Police have the greatest number of BME residents (over 1.8 million) and is the first police force area in Band 1. In contrast, Cumbria has the lowest number of BME residents (just over three thousand) and is the last area in Band 4. The bands are: Band 1 – The six areas with the highest number of BME population Band 2 – The next 12 forces with highest number of BME population Band 3 – The next 12 forces Band 4 – The 12 forces with the lowest BME population. Patterns broken down by individual forces are important, as they provide local knowledge of patterns of disparity, but also illustrate more general patterns of what might be called ‘justice by geography’, whereby the system treats similar people differently in different places.28 For example, within Band 1 the disproportionality in the West Midlands between search rates for Black and White people is higher than the disproportionality seen in London. However, the overall volume of searches for both groups in the West Midlands stand at around half of the London levels. Outside of London, West Yorkshire conducted the highest number of searches in Band 1, however, the disproportionality amongst Black and White people is the lowest amongst these areas. Amongst all the police force areas Northumbria has the least disproportionality between the different ethnic groups, with Black and White people almost equally as likely to be stopped and searched by police. Variations in recording practices in different forces may also play a part in these differences. 0 10 20 30 40 50 60 70 80 90 100 Other Asian Black White 2004/05 Number of searches per 1,000 population 15 13 16 90 83 92 27 24 27 24 20 21 2003/04 2002/03 12 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 28 Hearnden, I. and Hough, M. (2004) Race and the Criminal Justice System: An overview to the complete statistics 2002-2003, London: Home Office Figure 3.4 Persons stopped and searched under s1 Police & Criminal Evidence Act 1984, and other legislation, by ethnic group, per 1,000 population, for Band areas 1 to 4, 2004/05 Band 1 Band 2 0 20 40 60 80 100 120 England and Wales South Wales Avon and Somerset Essex Sussex Surrey Kent Hampshire Nottinghamshire South Yorkshire Hertfordshire Bedfordshire Lancashire White per 1,000 population Black Asian 17 31 22 6 25 10 12 67 27 19 109 46 3 19 15 91 16 8 7 43 60 16 10 8 18 66 5 33 7 12 14 12 43 16 15 27 90 74 5 0 20 40 60 80 100 120 140 England and Wales Leicestershire Thames Valley Greater Manchester West Yorkshire West Midlands MPS and City of London White per 1,000 population 26 108 34 10 51 20 35 118 45 24 24 107 61 27 9 14 23 87 90 15 27 Black Asian Section 95 Statistics 2004/5 on Race and the Criminal Justice System 13 Band 3 Band 4 0 20 40 60 80 100 120 England and Wales Dyfed-Powys Cumbria North Wales Durham Lincolnshire Gwent North Yorkshire Norfolk Dorset Humberside Wiltshire Cleveland White per 1,000 population Black Asian 30 48 23 13 69 8 8 26 19 9 96 11 8 72 5 5 11 9 20 75 20 20 11 18 7 14 18 34 18 13 18 18 30 15 15 27 90 17 11 0 20 40 60 80 100 England and Wales Gloucestershire Cheshire Suffolk Devon and Cornwall Warwickshire West Mercia Northamptonshire Staffordshire Northumbria Merseyside Derbyshire Cambridgeshire White per 1,000 population Black Asian 7 34 15 6 46 22 17 44 20 12 10 18 77 20 42 12 11 22 8 37 12 71 36 16 11 14 7 30 13 15 49 25 7 7 34 15 27 90 50 14 Section 95 Statistics 2004/5 on Race and the Criminal Justice System There are also wide variations in the reason why such searches are made. Nationally 41% of all searches were for drugs, although in some forces, for example Greater Manchester and Lancashire, the main reason given was for stolen property. Few searches resulted in an arrest, with similar proportions recorded across all ethnic groups. Nationally 11% of searches lead to an arrest for the White and Black groups, 10% for the Asian group and 15% for the ‘Other’ ethnic group. In 2004/05, compared with 2003/04, searches resulting in an arrest decreased by 2% for both the Black and White groups and decreased by 1% for both the Asian and ‘Other’ ethnic groups. Section 60 searches Searches may also be made under section 60 of the Criminal Justice and Public Order Act 1994. This legislation provides the police with additional powers to search persons and vehicles where it is believed that to do so would help prevent incidents involving violence or that persons are carrying dangerous instruments or offensive weapons. In 2004/05, a total of 41,302 searches were carried out under these powers in 31 police force areas, 1,109 more than in 2003/04. The largest increases were in the Black and Minority Ethnic (BME) groups (up 22% for Asian, 17% for ‘Other’ and 5% for Black people) compared with a 3% fall for White people. Figure 3.3 shows the number of searches carried out under section 60 of the Criminal Justice and Public Order Act 1994 in 2004/05 for different ethnic groups expressed as a rate per 1,000 population. The rate for Black people is 14 times the rate for White people whilst for Asian people the rate is six times higher.29 This may be due to the large numbers of s60 searches in areas with high BME populations, such as the West Midlands,30 London and Greater Manchester. Figure 3.5 (1,2) Persons stopped and searched under s60 of the Criminal Justice and Public Order Act 1994 per 1,000 population, 2002/03 to 2004/05 (1) Number of stop and searches under s60 in 2004/05: White 23,246; Black 9,833; Asian 6,844; Other 808 Number of stop and searches under s60 in 2003/04: White 23,868; Black 9,385; Asian 5,627; Other 688 Number of stop and searches under s60 in 2002/03: White 24,179; Black 11,204; Asian 6,979; Other 1,095 (2) Figures exclude vehicle only searches (see Ayres and Murray, 2004/05) 0 1 2 3 4 5 6 7 8 9 10 Other Asian Black White 2004/05 Per 1,000 population 0.7 0.6 0.5 9 7.2 7.5 3.5 2.6 3.1 2.4 1.3 1.5 2003/04 2002/03 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 15 29 Calculations based on figures taken to two decimal places 30 Section 60 has been used extensively within the West Midlands under Operation Safer Streets. The proportion of stop and searches resulting in an arrest under section 60 powers varied across forces; overall 3% led to an arrest in 2004/05 compared with 4% in 2003/04, and 6% in 2002/03 (see Ayres and Murray 2004/05). Section 44 searches The Terrorism Act 2000 provides the police with further powers to carry out searches. These powers (under section 44(1) for vehicle searches and section 44(2) for pedestrians) were used to carry out about 32,086 searches in 2004/05, a 9% increase since 2003/04 in 21 police force areas. It should be noted that these figures cover the financial year 2004/05 and therefore predate events in July 2005. Of these searches 23,400 were of White people, 2,511 of Black people, 3,494 of Asian people and 1,481 of ‘Other’ ethnic groups. Two fifths (40%) of all searches were in the Metropolitan Police District and 20% in the City of London. The use of the powers in London reflects the high level of police security as the powers help to deter and disrupt potential terrorist attacks. Figure 3.6 shows Black people were 2.5 times more likely to be stopped and searched under the Terrorism Act when compared to White people in 2004/05 (down from three times more likely in 2003/04). Asian people were twice as likely to be stopped and searched under these powers than White people; again down from three times in 2003/04, whilst the ‘Other’ group were almost four times as likely, similar to 2003/04. Figure 3.6(1,2,3) Persons stopped and searched under s44(1) or s44(2) of the Terrorism Act 2000, per 10,000 population, 2002/03 to 2004/05 (1) Number of stop and searches under s44(1) or s44(2) in 2004/05: White 23,400; Black 2,511; Asian 3,494; Other 1,481. Number of stop and searches under s44(1) or s44(2) in 2003/04: White 20,637; Black 2,704; Asian 3,668; Other 1,322. Number of stop and searches under s44(1) or s44(2) in 2002/03: White 14,429; Black 1,744; Asian 2,989; Other 1,259. (2) Rates expressed as per 10,000 to accommodate the relative infrequency of the use of powers under s44. (3) Analysis calculated using the population estimates for only those police force areas where powers were used. Arrests Seven per cent of all arrests for notifiable offences in 2004/05 resulted from a ‘stop and search’, the same proportion as 2003/04. Figure 3.7 shows the incidence of arrests per 1,000 population for 2002/03 to 0 5 10 15 20 25 30 35 40 Other Asian Black White 2004/05 Number of searches per 1,000 population 9 7 6 22 23 16 20 20 16 34 29 31 2003/04 2002/03 16 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 2004/05.31 A similar pattern is apparent in terms of disproportionality as is shown above for searches. However, the differences between ethnic groups are not as distinct. Black people, for example, were six times more likely to be searched under section 1 than White people whereas the arrest rate for Black people is three times the rate for White people. Figure 3.7 also shows that arrest rates for different ethnic groups have changed little over the three years. Unlike stop and searches the level of total arrests has remained relatively constant for all BME groups over this time. The difference between the two trends can be explained by the recent fall in arrests for offences, for example drugs offences, that could follow a stop and search in contrast to a rise in arrests for other types of offences. Figure 3.7(1,2) Persons arrested for notifiable offences per 1,000 population, by ethnic group 2002/03 to 2004/05 (1) Number of arrests 2002/03: White 1,102,900; Black 116,722; Asian 64,276; Other 17,250 Number of arrests 2003/04: White 1,122,135; Black 116,427; Asian 63,458; Other 19,092 Number of arrests 2004/05: White 1,142,266; Black 118,579; Asian; 65,905 Other 19,508 (2) Figures for Merseyside estimated. The type of offences that led to an arrest has changed little over recent years. In 2004/05, Black people remained over-represented for robbery offences (29% of all arrests for robbery) and Black and Asian people for fraud and forgery (18% and 11% respectively of those arrested for this offence). Cautions Once arrested, suspects may be charged, given a formal caution, written warning or have no further action taken. For those aged under 17, a caution is in the form of a reprimand or final warning. Relative to population (Figure 3.8), the cautioning rates per 1,000 population were similar for Asian,White and Other groups, whereas the rate for Black people was almost three times that for White people in 2004. There has been little change in cautioning rates and differences between groups since 2002. Looking at the percentage of arrests resulting in a caution, Black people remained slightly less likely to be cautioned than other ethnic groups – only 13% of arrests resulting in a cautioned compared with 16% for Asian and 0 10 20 30 40 50 60 70 80 90 100 Other Asian Black White 2004/05 Per 1,000 population 27 26 26 91 89 90 30 30 29 36 35 32 2003/04 2002/03 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 17 31 Incidence describes the number of incidents in an area. 17% for White people. When compared with arrests Black people were shown to be consistently more reluctant to be cautioned than White people. A caution or reprimand can be given only where an offender admits the offence, and this partly explains the lower rates of cautioning for ethnic minorities.32 Figure 3.8(1) Persons cautioned for notifiable offences, per 1,000 population, by ethnic group, 2002 to 2004 (1) Number of cautions 2002/03: White 173,273; Black 13,901; Asian 9,918; Other 2, 313 Number of cautions 2003/04: White 1, 85,082; Black 14,720; Asian 10,256; Other 2,703 Number of cautions 2004/05: White 198,847; Black 15,266; Asian 10,511; Other 2,740 Court proceedings Increasingly the police seek charging advice from the CPS. This is under the provision of the new statutory charging scheme through which the CPS prosecutor decides the charge in the majority of cases, with a few minor exceptions. Statutory charging is currently being rolled out across the country and will be fully implemented in all parts of England and Wales by 2007. An initial race and gender impact assessment of charging decisions was undertaken in two parts of London in early 2004 and found no ethnic differential. The CPS is currently undertaking an Equality and Diversity Impact Assessment on the impact of statutory charging to discover if charging decisions vary with the gender and ethnicity of the suspect. The report on this work is due to be published in the first quarter of the financial year 2006/07. At present there are no comprehensive ethnic data on proceedings at either magistrates’ courts or the Crown Court. For magistrates’ courts, ethnic data is only available for six police force areas where the level of missing data is below 20%. The Crown Court has recently introduced an ethnic monitoring system enabling the collection of the ethnicity of 78% of all suspects tried in 2004 (up from 65% in 2003).33 Each year figures are published for only those police force areas with the most complete data, i.e. where the proportion unknown was 15% or less. In 2004, there were 16 such areas. This is an improvement on 2003 when figures were published for only five police force areas. At both courts, court staff extract the 0 2 4 6 8 10 12 14 Other Asian Black White 2004/05 Per 1,000 population 5 4 4 12 11 11 5 5 5 5 5 4 2003/04 2002/03 18 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 32 Phillips and Brown (1998) Entry into the Criminal Justice System: a Survey of Police Arrests and Their Outcomes, Home Office Research Study No. 185, London: Home Office. 33 For complete breakdown of ethnicity data provided by the magistrates and Crown Court refer to Statistics on Race and the Criminal Justice System – 2005. London: Home Office. ethnicity of a suspect from the charge sheet supplied by the police. The incompleteness of data means that the results must be treated with caution. However the mix of ethnic groups found for Crown Court trials is very similar to that for arrests, suggesting that the data is representative of the population as a whole. Combined information for the magistrates’ courts in the six police force areas is consistent with earlier research34 and the HM Crown Prosecution Service Inspectorate Report,35 which suggests that in 2004 BME groups were more likely than White people to be committed at magistrates’ court to be tried by a jury at the Crown Court (20% for Black people, 30% for Asians and 15% for White people). Earlier research36 suggests that this may reflect the wish of BME defendants to be tried by a jury at the Crown Court. For the Crown Court: combining all available information for 2004 indicates that BME defendants were substantially more likely to be acquitted at the Crown Court than White defendants (29% for Black people, 30% for Asians and 22% for White people). Research by the Crown Prosecution Service37 suggests a tendency for the police to bring charges against Black and Asian defendants with weaker evidence. Sentencing Defendants convicted at either magistrates’ courts or the Crown Court will be sentenced after taking into account information from the pre-sentence report. A small number of defendants will be sent from the magistrates’ court to the Crown Court where magistrates feel their powers are insufficient. The sentencing decision is probably the most complex of all those that are made in the criminal process. Sentences have to take into account the nature of the offence, the plea, the offender’s previous criminal history and other mitigating or aggravating circumstances relating to the offence and the offender. In these circumstances it is difficult to separate differences due to ethnicity against other factors. A major study conducted by Hood (1992) attempted to differentiate ethnicity from such factors and covered decisions made in five Crown Court Centres in the West Midlands in 1989.38 The study concluded that adult male Black defendants were slightly more likely to be sentenced to custody than White defendants, and Asian defendants slightly less likely. It also showed that substantially longer sentences were given to both Black and Asian offenders than White offenders. A more recent study of young offenders (aged from 12 to 17) showed no evidence of significant differences in the likelihood of Black, Mixed race or White male youths receiving a custodial sentence. Asian males, however, were more likely to receive a custodial sentence. Black males, if sentenced to custody, were more likely to get a longer sentence than their White counterparts.39 The data currently available from magistrates’ courts and the Crown Court partly supports the conclusions from this survey although as with the data on court proceedings the results must be treated with caution. It cannot, however, allow for the factors that the Hood study40 was able to take into account since this would require a similar new study. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 19 34 Barclay, G. and Mhlanga, B. (2000) Ethnic differences in decisions on young defendants dealt with by the Crown Prosecution Service. Home Office Section 95 Findings No 1. London: Home Office. 35 HM Crown Prosecution Inspectorate (2002) Report on the Thematic Review of Casework having a Minority Ethnic Dimension. London: HMCPSI. 36 FitzGerald, M. (1993). Ethnic Minorities and the Criminal Justice System. Royal Commission on Criminal Justice Research Study 20. London:HMSO. 37 John, G. (2003) Race for Justice. A review of CPS decision making for possible racial bias at each stage of the prosecution process. London CPS. 38 Hood, R. (1992) Race and Sentencing. Oxford: Clarendon Press. 39 Feilzer, M. & Hood, R. (2004). Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System, London:Youth Justice Board,. 40 Hood, R. (1992) Race and Sentencing. Oxford: Clarendon Press At the magistrates’ court (for six areas) there was no difference in the use of custody between those from BME groups and White people. However, Black offenders were more likely to be fined and less likely to be discharged compared with White offenders, although the overall use of community sentences was the same. In contrast Asian offenders were less likely to be given community sentences compared with White offenders and more likely to be fined. Community service orders mainly include community rehabilitation orders and community punishment orders. At the Crown Court (for 16 areas) there was a distinct difference in the custody figures for fraud and forgery offences. Forty nine per cent of White offenders were sentenced to custody compared to 70% for ‘Other’ and 61% for Black groups. In contrast there was no marked difference in the use of custody for BME groups and White people for violence, sex offences and burglary or robbery. However, overall Black offenders were more likely to be sentenced to custody than both Asian and White offenders with the highest differences found for drug offences. Eighty per cent of Black offenders were sentenced to custody for drug offences, 74% of Asian and 62% of White offenders. Young Offenders Youth Offending Teams (YOTs), produce the pre and post trial interventions for offenders under the age of 17. Research41 has been carried out on the experiences of BME young people dealt with in this way. This showed that there were higher proportions of young Black people committing some offences and receiving certain disposals than in the general population. In 2004/05, 287,013 offenders were dealt with in this way, of which, 85% were White, 6% Black, 3% Asian, 2% Mixed and 1% ‘Other’. The number of offences has risen by 1% since 2003/04 with the proportion of young offenders in the different ethnic groups remaining largely unchanged. Young Black people were substantially over-represented compared with White people for robbery offences. BME suspects were more likely to be remanded in custody. This could reflect differences between groups in the severity of the charges faced or other factors such as the suspect’s accommodation, previous convictions, failure to appear, inference with a witness, mental health etc. The use of remand has fallen slightly for all ethnic groups since 2003/04 apart from the ‘Other’ ethnic group which showed an increase from 7% to 8%. Black offenders and those of Mixed origin were more likely to receive a community sentence compared to White offenders but less likely to be discharged or given a referral order. Ten per cent of Black and Mixed offenders were sentenced to custody, compared with 8% for Asian and 6% for White offenders. Probation Following the introduction of the 2001 Census categories, information on the ethnicity of persons supervised by the National Probation Service became available. The data reveals that as with other parts of the criminal justice process there is an over-representation of Black offenders. For example, 6% of persons starting court order supervision in the last quarter of 2004 were Black compared to 4% for Asians, 2% for Mixed and 1% for ‘Chinese and Other’ ethnic group. 20 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 41 Feilzer, M. & Hood, R. (2004). Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System. London:Youth Justice Board Prison Population On 30 June 2005, there were 76,190 people in prison establishments, of which 18,752 (24.6%) were from BME groups42. Nearly two-fifths (38%) of BME prisoners were foreign nationals. Figure 3.9 presents the prison population per 1,000 population for 2004/05. In March 2003 the Prison Service began to introduce new ethnic categories based on the 2001 Census. Due to these changes, comparisons between the figures presented here and those of previous years are not possible. Figure 3.9 shows that, excluding foreign nationals, the proportion of Black prisoners on 30 June 2005 relative to the population was five times higher than for White people. Similarly, people from Mixed ethnic backgrounds were more than twice as likely to be in prison than their White counterparts. In contrast people from ‘Chinese and Other’ ethnic backgrounds were least likely to be in prison, 0.5 compared to 1.4 and 1.5 per 1,000 population for White and Asian groups respectively. The disproportionate number of Black people in prison was, therefore, higher than for arrests although this could be expected from the higher use of custody and the longer sentence lengths referred to in the Hood (1992) study, as well as higher remand rates. Figure 3.9(1,2,3) Prison population per 1,000 population by ethnic group 2004/05 (1) Based on data for UK nationals only. (2) Prison population on 30th June 2005: White 53,645; Mixed 1,746; Black; 6,749; Asian 2,929; Other 168. (3) Proportion calculations based on 2004 Census data for over 15 population. No evidence has been found for any differential treatment of people from the BME group on release from prison. The rate at which prisoners were released on Home Detention Curfew in 2002 have been found to be very similar for White, Black, and Asian prisoners while the rate for ‘Chinese and Other’ prisoners was higher.43 Research on the decisions of the Parole Board44 found no evidence of differential treatment of BME prisoners other than those accounted for by other characteristics associated with release, such as the number of adjudications received during sentence and being housed in an open prison. 0 1 2 3 4 5 6 7 8 Other Asian Black Mixed White Per 1,000 population 1.4 3.2 1.5 7.1 0.5 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 21 42 This figure includes foreign nationals; of the 76,190 in prison establishments on 30 of June 2005, 10,520 were not UK Nationals. 43 Home Office (2003) Prison statistics England and Wales 2002. London: Home Office. 44 Moorthy, U.,Cahalin, K. and Howard , P. (2004) Ethnicity and Parole. Home Office Research Findings No 222. London: Home Office. Reconviction A study of those released from prison in 200145 and reconvicted within two years showed lower reconviction rates for BME offenders. For example, for those discharged in 2001, 62% of prisoners classified as White were reconvicted within two years of release. For Black, South Asian and ‘Other’ ethnic group, the proportions were 56%, 46% and 46% respectively. However, this analysis included foreign nationals, who record a lower reconviction rate than British nationals as many leave the country after completing their sentence. Restricting the analysis to British nationals reduces the differences found in reconviction rates – White (63%), Black (61%), South Asian (48%) and ‘Other’ (55%). Deaths in police custody In 2004/05 there were 106 deaths in police custody, an increase from the 100 recorded in 2003/04 (Table 11.1). Ninety-six deaths involved White people compared to 90 in 2003/04. For minority ethnic groups the overall number (10) of deaths remained the same as the previous year. In 2004/05, there were three deaths recorded for Asian people and three from the ‘Other’ group. In 2003/04, there were two deaths recorded for Asian people and one in the ‘Other’ ethnic group. In contrast, the number of deaths recorded for Black people has continued to fall from 16 people in 2002/03, 7 in 2003/04, and 4 in 2004/05. 22 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 45 Home Office (2005) Offender Management Caseload Statistics 2004. London: Home Office. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 23 This chapter provides information on the representation of Black and Minority Ethnic (BME) groups working for the Criminal Justice System. The number of BME staff working in criminal justice agencies has traditionally been very low. There has, however, in recent years been a marked improvement in representation at all grades in line with targets set for each agency.46 Targets have been set for agencies to reach full representation in relation to the proportion of their staff belonging to BME groups by 2009. Police Service In 2004/05, 3.5% of police officers were from BME groups, compared with 3.3% in 2003/04. This figure is below the representation of BME groups in the population (8.2%).47 In total 6% of police constables with less than one year’s service in 2004/05 were from the BME groups. Asian people formed the largest group making up 37% of all BME officers compared with 26% for Black officers, 25% for those of Mixed origin and 12% from ‘Other’ BME groups. As Figure 4.1 shows the highest increase in 2004/05 compared with 2003/04 has been in Asian (9.6%) and Mixed (11.9%) ethnic groups. Figure 4.1(1) Percentage increase in Police officers by ethnic group 2003/04 to 2004/05 (1) Figures as at 31 March 2004 and 31 March 2005. 0 2 4 6 8 10 12 14 WhiteMixedBlackAsianOther 7.3 9.6 4.8 11.9 1.5 Pe rc en ta ge in cr ea se C h a p t e r 4 : The experience of people from BME groups working in the Criminal Justice System 46 Home Office (2005) Race Equality: Home Secretary’s Employment Targets, London: Home Office. 47 The Home Secretary’s Employment Targets were laid down in 1999 and therefore used the Labour Force Survey as their basis as this was best measure available at the time. In this report, the 2001 Census figures on the percentage of the population in England and Wales economically active and from BME groups are used as a comparison point for representation. Among those ranked Superintendent and above the proportion from BME groups has increased in recent years – from 0.8% in 1999 to 2.2% in 2003/4 and to 2.3% in 2004/05. For those BME police constables leaving the force during 2004/05 the proportion resigning voluntarily was 54% (this was 8% less than 2003/04) however, it remains higher than the 28% of voluntary resignations by White police constables. These differences may reflect the varied lengths of time some officers have been in post. In 2004/05, 6,214 Community Support Officers were in post 14% of whom were from BME groups. This compares to 3,418 in 2003/4 of whom 17% were BME officers. These proportions would have been affected by the large numbers of these officers recruited in 2004/05. There was a numerical increase in the number of BME Community Support Officers from 591 in 2003/04 to 889 in 2004/05. Prison Service The overall figure for BME prison officers in the Prison Service was 4.4% in 2004/05 compared with 4.1% in 2003/04. This is below the 8.2% representation of BME groups in the population as a whole. For Governor grades, the equivalent figures are 3.0% and 3.2%. Black people accounted for nearly one half (47%) of BME prison officers. Eight percent of recruits in 2004/05 were from BME groups. Figure 4.2(1) Percentage increase in Prison officers by ethnic group 2003/04 to 2004/05 (1) Figures as at 31st March 2004 and 31st March 2005 0 2 4 6 8 10 12 14 OtherAsianBlackWhite 4 9.8 1.9 12.5 Pe rc en ta ge in cr ea se 24 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Probation Service The Probation Service continues to have representation from BME groups above the 8.2% in the general population. The overall proportion of BME officers was 10.9% in 2004/05, up from 10.5% in 2003/04. This change may have been affected by the decrease in the number of Probation Service Staff where the ethnicity was unknown (the ethnicity of 5.8% of Probation Service staff in 2004/05 remained unknown). The largest percentage increase in the number of staff was found in the Mixed and Asian groups (13.2% and 21% respectively). Overall there was 3.3% increase in the number of Probation Service staff from 2003/04 to 2004/05. This increase is largely contributed to by a 4.9% increase in the White group compared to a 0.4% increase in BME groups. Figure 4.3 Percentage change in Probation staff by ethnic group 2003/04 to 2004/05 Crown Prosecution Service Levels of employment in the Crown Prosecution Service (CPS) are also above the 8.2% BME representation in the population. The proportion of BME staff in the CPS was 11.7% in 2004/05, up from 11.3% in 2003/04. Overall there was 3% increase in the number of CPS staff from 2003/04 to 2004/05. The largest percentage increase in the number of staff was found in the Black and Mixed groups (5.9% and 20.7% respectively). The Other group was the only group to experience a decrease (the groups small sample size means that a fall in the number of Chinese/Other staff from 45 in 2003/04 to 42 in 2004/05 resulted in a decrease of 5.7%).48 The CPS Annual Equalities in Employment Report 2004-2005 states that there is continued progress in improving BME representation at all levels in the CPS. For example, 13% of Chief Crown Prosecutors are from BME groups. Furthermore, 27% of scholars on the CPS Law Scholarship Scheme are from BME groups (a 7% increase from the previous year).49 -5 0 5 10 15 20 25 OtherAsianBlackMixedWhite 1.9 21 3.2 13.2 -0.9 Pe rc en ta ge in cr ea se Section 95 Statistics 2004/5 on Race and the Criminal Justice System 25 48 These figures are based on calculations including the Unknown category. 49 CPS (2005) Annual Equalities in Employment Report 2004-2005. London: Crown Prosecution Service Figure 4.4 Percentage change in CPS staff by ethnic group 2003/04 to 2004/05 Other Criminal Justice agencies The proportion of BME staff in the Department of Constitutional Affairs was 11.6% in 2004/05. Mixed and BME groups continue to be underrepresented at the most senior levels. For example, for DCA staff at Span 8 or above only 3.8% were from minority ethnic groups. In contrast 14.2% of Span 7 and below were from BME groups. The proportion of Black and Minority Ethnic staff in the magistrates’ court was 9.8% in 2004/05, up from 6.8% in 2003/04. The proportion of BME staff in the Crown Court was 7% – below the BME representation in the population as a whole. -10 -5 0 5 10 15 20 25 Chinese/OtherAsianBlackMixedWhite 2.6 20.7 5.9 5.7 -5.7 Pe rc en ta ge c ha ng e 26 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Section 95 Statistics 2004/5 on Race and the Criminal Justice System 27 This chapter summarises information about the confidence of BME groups in the Criminal Justice System. It draws on findings from two surveys: the British Crime Survey and the Home Office Citizenship Survey (HOCS).50 There is limited evidence on drivers of BME confidence in the CJS. Therefore, findings from recent smaller scale studies commissioned by the Office for Criminal Justice Reform (OJCR) and the Department for Constitutional Affairs (DCA) are also reported here.51 The BCS asks respondents their views on how good a job individual agencies in the CJS are doing. Figure 5.1 shows the results from the most recent BCS (2004/05).52 It found that, in general, Asian people and those from ‘Other’ ethnic groups were the most likely to rate the criminal justice agencies as doing a good or excellent job. For all ethnic groups levels of satisfaction were considerably higher for the Police Services and comparatively lower for the Juvenile courts. Figure 5.1 Perception that the CJS agencies are doing a good or excellent job, by ethnic group 2004/05 0 10 20 30 40 50 60 Juvenile Courts Probation Service PrisonsMagistratesJudgesCrown Prosecution Service The police 48 45 52 52 56 25 34 40 38 42 25 33 44 34 45 27 37 44 34 44 25 31 31 28 38 27 36 35 33 38 16 25 31 28 33 % t hi nk in g go o d o r ex ce lle nt Chinese or otherBlackAsianMixedWhite C h a p t e r 5 : Confidence in the Criminal Justice System among people from BME groups 50 HOCS is a biennial survey, asking a representative sample of 10,000 in England and Wales for their views and experiences in relation to a range of issues, including racial prejudice. There is a minority ethnic boost sample of 5,000 to ensure that the views of this group are robustly represented. 51 These studies are small scale and findings should not therefore be treated as representative. 52 Jansson, K. (forthcoming) Ethnicity and victimisation: findings from the 2004/05 British Crime Survey, London: Home Office However, the most recent HOCS (2005)53 reported that BME groups have much higher levels of perceived discrimination when it comes to CJS agencies compared to the White population. In 2005, 33% of the Black population, 29% of the Mixed and 21% of the Asian group felt that the police would discriminate against them, compared to just 5% of the White population. Similar views were held of the Prison service, the Courts, Crown Prosecution Service and the Probation Service although to a lesser extent. HOCS is used to measure the Public Service Agreement target (PSA2(e)), that is to reduce the percentage of people from BME communities who believe they would be treated worse by one or more CJS agency. Respondents are asked whether they think they would be treated differently than people of other races by the Police, the Prison Service, the Courts, the CPS and the Probation Service. Their responses for each organisation are then brought together into the composite measure, looking at discrimination by any of the five. The baseline for the target is 2001. On the composite measure, 31% of people from minority ethnic groups feel that they would be treated worse than people of other races by one or more of the five criminal justice system organisations.54 This shows no significant change from 2001 (33%) or 2003 (31%).55 There has, however, been a statistically significant decrease in the percentage of people from minority ethnic groups who feel they would be treated worse than other races in four of the five organisations (the Courts, CPS, the Police and the Prison Service) between 2001 and 2005. Change between the perceptions of BME and White people in 2003 and 2005 are illustrated in Figure 5.2. Figure 5.2 Percentage of BME and White people expecting CJS agencies to treat them worse than people of other races, Home Office Citizenship Survey 2001, 2003 and 2005. 0 5 10 15 20 25 30 Probation Services CPSCourtsPrison Service Police 27 23 24 6 5 5 21 17 17 4 2 2 14 13 12 5 6 6 14 12 11 5 5 5 11 10 10 4 3 3 % t hi nk in g go o d o r ex ce lle nt White 2003White 2001BME 2005BME 2003BME 2001 White 2005 28 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 53 Murphy, R. Wedlock, E. and King, J. (2005) Early findings from the 2005 Home Office Citizenship Survey, Home Office online Report 49/05. 54 The CJS agencies are the Police, the Prison Service, the Courts, the CPS and the Probation Service. 55 Recent analysis has shown that the percentage change from 2003 to 2005 is too small to be statistically significant. Knowledge about the workings of the CJS is one of the factors which may affect BME confidence in the CJS organisations.56 Findings from recent research commissioned by the DCA57 suggest that awareness of the CJS activities is generally lower among ethnic minorities, particularly Asians, than among the White population (based on self assessment of knowledge levels). Similarly a recent MORI study found awareness of the CJS agencies was low across BME groups.58 However, the DCA research also found that Black people were more likely than White and Asian groups to show a strong interest in CJS activities and were also more willing to get involved. Similarly, Asians were more willing than White people to get involved with victim and witness support schemes. In general, BME groups were less likely to have reported a crime to the police and less likely to have any experience of court. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 29 56 Page, B., Wake, R. & Hill, R. (in press) Confidence in the Criminal Justice System: explaining area variation in public confidence. Home Office Findings 251. 57 Department for Constitutional Affairs (2005) Consumer Experience of the Criminal Justice System, Volume A: Consumer Engagement. 58 BME Communities’ Expectations of Fair Treatment by the Criminal Justice System (2005) 30 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Earlier chapters of this Overview report highlighted that BME groups have different experiences and requirements of the Criminal Justice System both as offenders, defendants and victims of crime. The Government is committed to building a society with opportunities for all. A key part of that is a CJS which treats all communities equally, is fair, representative and effective in tackling racist crime. This chapter describes the steps CJS agencies have undertaken to address the needs of BME communities and increase their confidence in the CJS. Criminal Justice System Race Unit BME Trust and Confidence The Government’s public service agreements to ‘Re-assure the public, reduce the fear of crime and anti-social behaviour, and build confidence in the criminal justice system (CJS) without compromising fairness” demonstrates its commitment to having a CJS that is fair and can demonstrate that it is fair to all communities. One of the targets contributing to this objective is ‘to reduce the % of people from BME Communities who believe they would be treated worse by one or more CJS agencies.’ This target requires individual CJS agencies to work collectively to improve BME perception of the CJS by 2007/08. The CJS Race Unit is responsible for guiding and monitoring the work of CJS agencies at both national and local level to deliver this target. Although the target deals with perceptions it will only be achieved if BME people’s experience of the CJS is improved. The work outlined by the CJS agencies in this chapter form part of the delivery strategy which concentrates on improving service delivery, providing information to BME communities and engaging with them to improve their experience of the CJS. Working with LCJBs Local Criminal Justice Boards are at the heart of delivering improved services that will impact on BME people’s trust in the CJS. In December 2005, the CJS Race Unit issued the Fairness and Equality in the CJS toolkit to provide LCJBs with a framework to identify and prioritise actions to deliver the target. This is being followed up by a series of regional seminars to help LCJBs review their current activities to improve delivery. Throughout the coming year the Unit will continue to support and assist LCJBs in working with BME communities and will identify and promulgate good practice. Stop and Search The Stop and Search Action Team (SSAT) was created to provide a joined up response to the problem of disproportionality in the use of stop and search by the Police. As a result of the Team’s work in a number of pilot sites around the country, a guidance manual was issued in January 2005. C h a p t e r 6 : What is being done? The manual provides forces with a template to understand the causes of disproportionality and provides guidance and good practice to remove inappropriate disproportionality. This manual is being developed into Practice Guidance by the National Centre for Policing Excellence (NCPE) with a view to publication in June 2006. In addition Her Majesty’s Inspectorate of Constabulary (HMIC) are now using the key points from the manual to inform inspections. The ultimate outcome of this work is a reduction in the levels of inappropriate, disproportionate stops and searches as well as increased BME community confidence in the use of the stop and search powers. It is disappointing that the activity to date has not generated a decrease in disproportionality however a number of new initiatives will be launched in 2006 including a publicity campaign and a Community Manual to accelerate progress. Developing statistics that drive change If Local Criminal Justice Boards are to deliver a fair and effective system to BME service communities they need to understand BME groups’ experiences of the CJS in their area. The statistics presented in this report are one of the main sources of information available on BME perceptions across the CJS and are a potentially powerful tool in driving performance and race equality. The CJS Race Unit is currently taking forward a major programme of work to improve the collection and dissemination of these statistics. As part of this programme the Unit distributed Race Information Packs to all LCJBs in November 2005. The packs presented a selection of race-related management information taken from Section 95 and were intended to provide Boards with an idea of the range and types of information that is available to inform policy making and delivery. The Unit will use the feedback received from Boards to inform the content of future information packs. In addition to improving dissemination they will also be taking forward work to improve data collection. A key element of this will be developing a minimum dataset mapping out the race related information that needs to be collected across the CJS. This work will be undertaken in consultation with principal stakeholders including policy makers, practitioners and academics. Home Office Police The report of the Stephen Lawrence Inquiry highlighted that BME communities feel unfairly targeted by Police Stop and Search Powers. In April 2005, the Police and Criminal Evidence Act was amended to include the recording of all stops (previously only searches were recorded). The implementation of this recommendation was supported by guidance produced by the Home Office, the Association of Chief Police Officers and the Association of Police Authorities. A further recommendation of the report of the Stephen Lawrence Inquiry was to improve services to victims. The police last year introduced a Code of Practice for the reporting and recording of the racist incidents. A Home Office evaluation of the Code was produced in October 2005. The response to its recommendations will be overseen by a Racist Incidents Group set up by the Home Secretary. The National Community Safety Plan 2006-09 (incorporating the National Policing Plan) was published in November 2005 and confirms the continuation of a priority focus on delivering a citizen focused police service. The police are introducing dedicated, visible, accessible and responsive neighbourhood policing teams in all areas in England and Wales by 2008. These teams will forge a new relationship with local people Section 95 Statistics 2004/5 on Race and the Criminal Justice System 31 based on active cooperation and engagement. Forces are also implementing a set of minimum service standards that every member of every community can expect from the police service. The Police and Home Office have continued to focus efforts on improving BME representation in police officers, police staff and the Special Constabulary. Prison Service The Prison Service remains committed to providing equal opportunity, promoting diversity and eliminating racism and other forms of discrimination. Good progress has been made with taking forward the action plan, Implementing Race Equality in Prisons – A Shared Agenda for Change. The plan was agreed with the CRE in 2003, and sets out the work that the Prison Service will undertake to ensure full compliance with the Race Relations (Amendment) Act 2000 and embed the lessons learned from the CRE Formal Investigation. This work now forms part of the Prison Service Race Equality Scheme, which was revised during 2004/05. The scheme, which sets out how the service will meet its general statutory duty under the Race Relations (Amendment) Act 2000 duty, was published in May 2005 and may be viewed at www.prisonservice.gov.uk/abouttheservice/racediversity Improvements in the IT programs have enabled greater use of ethnic monitoring data by the Race Relations Management Team, who have developed race relations key performance targets for both staff and prisoners. Race relations audits include: racist incident reporting; ethnic monitoring data; prisoner survey (measuring the quality of prison life); visitor survey; staff race equality audit; staff racial grievances and complaints; percentage of BME staff and percentage of BME staff in contact roles. Since the introduction of the Employment Targets in 1999, increasing BME representation remains critical to the Prison Service. The information, data and analysis produced by the Quarterly Ethnicity Review the Human Resources Planning Team helps to highlight and pinpoint the areas where the Service still has to work harder. It allows for the continuous tracking of progress and efforts made towards meeting the targets set. Representation at senior officer level is not progressing as well, therefore the Service has recently developed a senior operational managers’ programme, which encouraged applications into the management grades direct. The Service is currently developing a positive action programme for its current BME managers and it continues to support BME staff through the RESPECT network. Implementation of the Quarterly Ethnicity Review by the Human Resources Planning Team has enabled continuous tracking of progress and highlighted areas of need for BME focused activities. Quarterly questionnaires on race equality are cross checked against Her Majesty’s Chief Inspector of Prisons (HMCIP) and Independent Monitoring Board (IMB) reports, as well as Prison and Probation Ombudsman reports. Probation The National Probation Service (NPS) has exceeded the Home Secretary’s employment targets for BME staff and has a workforce where 10.9% of the staff is from BME communities. However, minority ethnic groups are still under represented at the senior management level. To address the issue of the low representation of BME staff at senior management level, the NPS has invested in a positive action leadership programme called ACCELERATE which targets BME managers and provides a two-year personal development programme. The first cohort of this programme commenced in September 2004 with 12 participants and is due to be completed in 2007, 25% of this cohort has 32 Section 95 Statistics 2004/5 on Race and the Criminal Justice System already been successfully promoted to more senior roles within the criminal justice sector. The ACCELERATE programme was short listed for the Personnel Today award (2005) for excellence in career development. A high priority for the National Probation Directorate (NPD) has been to improve probation monitoring statistics on the ethnicity of staff and offenders. Consequently, meaningful comparisons can now be made between ethnic groups to inform policy and determine the quality of service delivery to BME groups. A target of 95% monitoring for all offenders and staff was set in 2005/06 and was almost achieved with an average total of 94% across the two groups. NPD have incorporated ethnic monitoring into a weighted score card performance monitoring management system to ensure continuous improvement in ethnic monitoring statistics. To ensure that probation responds to the needs of BME offenders the NPD has supported the NPS in developing ‘pathfinder programmes’ for BME offenders. These are currently being evaluated. Crown Prosecution Service The Crown Prosecution Service adopted a new equality and diversity policy and strategy in May 2005. As part of this strategy the CPS has introduced key equalities measures into its Area Performance Review System. These key measures focus on hate crime prosecutions and community engagement. Alongside this a number of equalities themed reviews are being undertaken as part of its performance review systems, including one on workforce representation. A Community Engagement Strategy was agreed in May 2005. As part of implementing this strategy the Service is running 3 community engagement pilots in West Yorkshire, Durham, and Thames Valley. These pilots will be independently evaluated and the findings profiled at a national conference in the autumn of 2006. Good Practice Guidance will also be developed from these. Alongside these initiatives the CPS is also deepening engagement with a range of communities through a series of forthcoming regional information, reassurance and listening events with Muslim Communities. A number of initiatives are underway to further equalities in employment including active implementation of a departmental Diversity Delivery Plan to help achieve Senior Civil Service (SCS) workforce diversity targets by 2008. The CPS is also committed to a programme of impact assessments of key employment processes including a recent impact assessment of Performance Appraisal Box marks rating system. An improved electronic recording project for hate crime data will be launched in 2006/07 and in due course this will be developed further to produce more accessible public reports on hate crime prosecutions. A comprehensive impact assessment of the ethnic and gender distribution of changing decisions is currently being undertaken and the CPS aims to publish this assessment in 2006/07. This involves an assessment of 225,000 prosecutors changing decisions, and will be the largest scale assessment of prosecutor decision-making undertaken to date. The CPS intends to review and update its Racist and Religious Crimes Policy in 2006/07 in line with planned developments on incitement to religious hatred. Alongside this the CPS will keep its training programme for prosecutors on racist and religious crimes under review. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 33 Department for Constitutional Affairs The DCA is examining whether and to what extent, the courts system deals fairly and justly with the needs of a diverse and multi-cultural society, and whether it is regarded as fair. Two projects already completed are ethnic minority magistrates’ experience of their role and of the court environment, and ethnic diversity and the jury system. A targeted research project to examine the satisfaction of BME users has also been undertaken. The aim is to understand whether the causes of dissatisfaction are related to the service received or determined by other factors and influences such as their age, gender or the capacity in which they were using the court. The DCA is working to increase the diversity of the judiciary through two key work streams: the Magistrates National Recruitment Strategy (MNRS) and the programme of work that came from the consultation paper “Increasing Diversity in the Judiciary” which was published in October 2004. The Judicial Diversity Programme focuses on three main areas; encouraging applications and raising awareness; removing barriers to appointment, and ensuring that the way the judicial office operates encourages and supports a more diverse judiciary. In addition, the Diversity Programme contains four projects of which three have now been delivered. For example, the Developing Policy Project has been developed and is now implementing the DCA’s Diversity Impact Assessment Tool. The purpose of the tool is to ensure that diversity impact assessments and race equality impact assessments are carried out on all policies to check whether the policy could have an adverse impact on different groups of people. Diversity Impact Assessments (DIAs) are carried out on both internal and external policies. Youth Justice Board In the light of the research by the University of Oxford59 a priority of the Youth Justice Board (YJB) has been to reduce the over-representation of young Black offenders. To this end it has set itself the target of ensuring the all Youth Offending Teams have action plans in place: ● to achieve equal treatment at local level for comparable offences by different ethnic groups; and ● to deliver targeted prevention activity that substantially reduces local differences by ethnicity in recorded conviction rates by March 2008. To achieve this the YJB launched, in November 2004, an audit and planning process to address the continued over-representation of BME groups in the youth justice system. This required YOTs’ and their partner agencies to assess the local pattern of BME disproportionality in pre-court and post-court disposals with data on the local BME population. In summer 2005 action plans were submitted from all YOTs, and YJB regional teams will monitor progress against their stated objectives. In addition, for YOT’s that are struggling to make progress, support will be available from YJB performance improvement consultants. Regional workshops will also take place to showcase and disseminate emerging practice. The YJB has also established a Diversity Board that will be chaired by the Chief Executive Officer and will co-ordinate cross directorate activity to ensure effective co-ordination. 34 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 59 Felizer, M. & Hood, R. (2004). Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System. Youth Justice Board. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 35 Aust, R. & Smith, N. (2003), Ethnicity and drug use: key findings from the 2001/2002 British Crime Survey. Findings 209. London: Home Office. Barclay, G. and Mhlanga, B. (2000) Ethnic differences in decisions on young defendants dealt with by the Crown Prosecution Service. Home Office Section 95 Findings No 1. London: Home Office. Bibi, N., Clegg, M. and Pinto, R. (2005) Police Service strength, England & Wales, 31 March 2005. Home Office Statistical Bulletin 12/05. London: Home Office Research Development and Statistics Directorate. 29 September 2004. Available at: http://www.homeoffice.gov.uk/rds/pdfs05/hosb1205.pdf Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman. Bullock, K. and Tilley, N. (2002) Shootings, Gangs and Violent Incidents in Manchester: developing a crime reduction strategy. Crime Reduction Research Series Paper 13. London: Home Office. Burnley, E. and Rose, G (2002) Racist Offences – how is the Law Working?: the implementation of the legislation on racially aggravated offences in the Crime and Disorder Act 1998. Research Study No 244. London: Home Office. Councell, R. (2005) Offender Management Caseload Statistics 2004, England and Wales. Home Office Statistical Bulletin 17/05. London: Home Office Research Development and Statistics Directorate. December 2005. Available at: http://www.homeoffice.gov.uk/rds/pdfs05/hosb1705.pdf CJS (2005) BME Communities’ Expectations of Fair Treatment by the Criminal Justice System. London: Office for Criminal Justice Reform. CPS (2004) Racist incident monitoring: Annual Report 2003/4. London: Crown Prosecution Service. CPS (2005) Racist incident monitoring: Annual Report 2004/5. London: Crown Prosecution Service. CPS (2005) Annual Equalities in Employment Report 2004/5. London: Crown Prosecution Service. Department for Constitutional Affairs (2005) Consumer Experience of the Criminal Justice System. Volume A: Consumer Engagement. Feilzer, M. & Hood, R. (2004) Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System. Youth Justice Board. FitzGerald, M. (1993) Ethnic Minorities and the Criminal Justice System. Royal Commission on Criminal Justice Research Study 20, London: HMSO. References FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. Hearnden, I. & Hough, M. (2004). Race and the Criminal Justice System: An overview to the complete statistics 2002/3. London: Criminal Justice System (Race Unit). HM Crown Prosecution Inspectorate (2002) Report on the Thematic Review of Casework having a Minority Ethnic Dimension. London: HMCPSI. Home Office (2003) Prison statistics England and Wales 2002. London: Home Office. Home Office (2004) Offender Management Caseload Statistics 2003. London: Home Office. Home Office (2005) Offender Management Caseload Statistics 2004. London: Home Office. Home Office (2005) Race Equality: Home Secretary’s Employment Targets. London: Home Office. Hood, R. (1992) Race and Sentencing. Oxford: Clarendon Press. Jansson, K. (forthcoming). Ethnicity and victimisation; findings from the 2004/05 British Crime Survey. Home Office. John, G. (2003) Race for Justice. A review of CPS decision making for possible racial bias at each stage of the prosecution process. London CPS. Junger-Tas, J. & Marshall, I. H. (1999) The self-report methodology in crime research. In M. Tonry (Ed.), Crime and Justice. A Review of Research. Vol 25. (pp. 291–367). Chicago: The University of Chicago. Kershaw, C., Budd, T., Kinshott, G., Mattinson, J., Mayhew, P. and Myhill, A. (2000) The 2000 British Crime Survey England and Wales. Home Office Statistical Bulletin 18/00. London: Home Office. Moorthy, U.,Cahalin, K. and Howard, P. (2004) Ethnicity and Parole. Home Office Research Findings No 222. London: Home Office. Murphy, R. Wedlock, E. and King, J. (2005) Early findings from the 2005 Home Office Citizenship Survey. Home Office online Report 49/05. www.homeoffice.gsi.gov.uk/rds/citizensurvey.html Murray, L. and Ayres, M. (2005). Arrests for Notifiable offences and the operation of certain police powers under PACE, England and Wales, 2003/04. Home Office Statistical Bulletin 18/04. London: Home Office Research Development and Statistics Directorate. Available at: http://www.homeoffice.gov.uk/rds/pdfs05/sb2105.pdf Nicholas S. and Walker A. (eds), Crime in England and Wales 2002/3: Supplementary Volume 2: Crime, Disorder and the Criminal Justice System – Public attitudes and perceptions. Home Office Statistical Bulletin 2/04. London: Home Office. Page, B., Wake, R., & Hill, R. (in press) Confidence in the Criminal Justice System: explaining area variation in public confidence. Home Office Findings 251. Phillips, C. and Brown, D. (1998), Entry into the Criminal Justice System: a Survey of Police Arrests and Their Outcomes. Home Office Research Study No. 185, London: Home Office. 36 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Phillips, C. & Bowling, B. (2003) Racism, Race and Ethnicity: developing minority perspectives in criminology. British Journal of Criminology 43, no.2. Salisbury, H and Upson, A. (2004) Ethnicity, Victimisation and Worry about Crime: findings from the 2001/02 and 2002/3 British Crime Surveys. London: Home Office Research Findings No 237. Sharp, C. & Budd, T. (2005) Minority ethnic groups and crime: findings from the Offending, Crime and Justice Survey 2003. Home Office online report 33/05. Smith, D.J. & Gray, J. (1985). Police and the Public. London: Gower. White, A. (2002) Social Focus in Brief: Ethnicity 2003. London: ONS. Whitehead, E. (2001) Witness Satisfaction: findings from the Witness Satisfaction Survey 2000. London: Home Office Research Study No 230. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 37 38 Section 95 Statistics 2004/5 on Race and the Criminal Justice System This report has been prepared by the CJS Race Unit, and Research, Development and Statistics in the Office for Criminal Justice Reform (RDS-OCJR). Further copies are available from: Criminal Justice System Race Unit 2 Marsham Street London SW1P 4DF Email: CJSRACE@homeoffice.gsi.gov.uk This publication is available on the Home Office website http://www.homeoffice.gsi.gov.uk/rds Contact Points Published by the Office for Criminal Justice Reform. March 2006. Ref: 274134 
work_epolg6bp7ve4zhvclssetxuliy	----	Journal ofMedical Ethics 1999;25:137-143 Does justice require genetic enhancements? Nils Holtug University of Copenhagen, Copenhagen, Denmark Abstract It is argued thatjustice in some cases provides a pro tanto reason genetically to enhance victims of the genetic lottery. Various arguments - both to the effect that justice provides no such reason and to the effect that while there may be such reasons, they are overridden by certain moral constraints - are considered and rejected. Finally, it is argued that justice provides stronger reasons to perform more traditional medical tasks (treatments), and that therefore genetic enhancements should not play an important role in a public health care system. (7ournal ofMedical Ethics 1999;25:137-143) Keywords: Justice; genetic enhancements; genetic lottery; end of medicine The chances are that you - the reader of this jour- nal - are a reasonably healthy person. I do not mean to say that you are likely to be perfectly healthy; after all, most of us have some medical conditions that cause inconveniences, lost oppor- tunities or even suffering. However, I think it is fair to say that, as far as our health is concerned, most of us are reasonably well off. But not every- one is so fortunate. Here follows a description of some of the patients at the Children's Convales- cent Hospital in San Diego: "On the beds lie the children - the two-year-olds, the four-year-olds, the ten-year-olds, and the teenagers - some whose limbs convulse erratically, others who are unnaturally still ... "Some of these children will die very young in the bright world of Children's Hospital. For others there will be a succession of hospital rooms, with- out toys or murals, and a succession of nurses, who may no longer wonder how to extend their hands to elicit a response, who no longer wind music boxes, a succession of rooms, to which the children will be largely oblivious. A few will return, at least for a while, to their parents." "In one of the rooms at Children's Hospital, a four-year-old boy who looks much younger than his age sits on the floor playing with a toy. He is afflicted with neurofibromatosis, and his develop- ment was quite normal until a year or so ago, when he suffered a massive seizure, which returned him to a state of early infancy. Slowly, the doctors and nurses at Children's have brought him back, watching him reacquire the capacities of a young toddler. Soon his parents will follow his further developmental steps, waiting for the next seizure, wondering how far he will go this time and how much will be lost."' Some of these children have severe diseases that are due to genetic conditions. They will suffer and, in some cases, die at an early age because they were unfortunate enough to come into exist- ence with a (or several) disease-causing genes. Many of us think that, since they cannot possibly be said to deserve these genes or their vast negative effects, they should be compensated in terms of publicly funded health care services, and perhaps in other ways as well. In the following, I shall spell out in greater detail this argument for compensating people with genetically determined diseases. I shall then argue that, perhaps somewhat surprisingly, it implies that justice may provide us with a reason not only to treat diseases, but also genetically to enhance certain characteristics in people. The reasons I refer to here are pro tanto2 reasons - we have a reason to treat and to enhance. However, pro tanto reasons need not be decisive; they may be outweighed by other, stronger reasons. So the pro tanto reason to enhance may be outweighed by conflicting reasons, pertaining either to justice itself or to some other part of our moral system. There are various ways of drawing the distinc- tion between treatments and enhancements, but I shall take a treatment to be an intervention that aims at curing or reducing the effects of a disease, where a disease is taken to be a departure from species-typical normal functioning. Enhance- ments, on the other hand, do not aim to cure or reduce the effects of diseases. I draw the distinction in this way because I believe that it is at least close to what many people who believe in the moral significance of the distinction have in mind. o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ 138 Does justice require genetic enhancements? Since my claim about justice and the pro tanto reason to enhance is controversial, I shall consider various objections and argue that these are not very compelling. Finally, I shall argue that while justice may give us a pro tanto reason for genetic enhancing, it will also (mostly) provide us with a stronger (or overriding) reason not to. This is because more traditional medical tasks - for example, trying to treat severe diseases such as those from which the children at Children's Hos- pital suffer - are more important. 1. The genetic lottery When we come into existence, we do so with a particular set of genes that we have not chosen or influenced ourselves. I shall refer to this distribu- tion of genes to people as the "genetic lottery". Our lot in this lottery is crucial as to how well our lives go. Some are fortunate, others are not. Some are born healthy and with much potential, others are born with severe, painful diseases that cause them to die young. The point of introducing the idea of a genetic lottery is that since we have not chosen our genes, we cannot be said to deserve them. Nor can we be said to deserve the benefits we reap or the harms we suffer because of our genetic make-ups, since neither are due to our choices. For instance, a person who needs an expensive medical treatment because he or she suffers from cystic fibrosis has not chosen to need this treatment or even made choices that cause him or her to need it. Of course, many diseases are more complicated than cystic fibrosis, in that they are partly due to choices. In some such cases, we may be less inclined to say that people are not responsible for them themselves. For instance, what should we say about a case in which a person chooses to smoke although he knows that, because of his genetic make-up, he has an above average chance of developing lung cancer? However, for present purposes, I want to stick to the simpler cases in which people's own choices cannot be said to play a causal role.3 John Rawls has famously argued that we have a pro tanto reason to eliminate inequalities between people that are due to natural contingencies, such as the distribution of genes.4 In fact, Rawls believes we also have a reason to eliminate inequalities that are due to social contingencies, but my focus here is on the genetic lottery. However, as some commentators have pointed out, it does not follow from the claim that inequalities are not deserved that they should be eliminated, or, for that matter, that any particular distribution should be implemented. Nevertheless, I believe that the point that certain benefits and harms are not deserved lends some support to the claim that we ought to redistribute to accommodate the interests of the worse off. Many ofus have moral intuitions to the effect that, when people are badly offthrough no fault of their own, we have a reason to compensate them, for example, in terms of adequate health care services. These intuitions can be accounted for in a number of different ways. We may believe, as do egalitarians, that when inequalities are not de- served we should eliminate them and, for that rea- son, compensate the worse off. Or we may believe, as do prioritarians, that we should simply give pri- ority to the worse off, at least when they are not responsible for so being. Or we may believe, as do utilitarians, that we should aim to maximise the sum of utility and that, in general, compensating the worse off, when they are not responsible for being so, is an efficient way of achieving this aim. Either way, we have a reason to redistribute. And we have a reason to provide health care for people who suffer from genetic defects (and, presumably, for many other people as well). However, the misfortunes that people may suf- fer in the genetic lottery do not stop at diseases. For instance, in a survey of the research done on physical attractiveness and how people are per- ceived it is concluded that: "The social psycho- logical effects of physical attractiveness are perva- sive, strong, and generally uniform in nature. They are such that the physically attractive, whether male or female, old or young, black or white, or of high or low socioeconomic status, receive preferential treatment in virtually every social situation examined thus far."5 Furthermore, other factors with a genetic basis or genetic component, such as intelligence, talent, strength and height, are not evenly distributed. While such features may be less important than health, they are still important for the sort of opportunities a person has. The point I want to make here is that if we are inclined to believe that there is a pro tanto reason to compensate people who are worse off because of their lot in the genetic lottery, there is a pro tanto reason to compensate people whose genes cause them to be worse off because they are less intelligent, less talented, less attractive, etc. The argument presented for compensating people with genetically determined diseases also applies to these other features. One way of compensating people would be by using gene therapy to enhance various features, or by using genetic engineering to produce hor- mones which would have the same effect. Of course, it will be a long time before gene therapies o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ Holtug 139 that can enhance, for example, intelligence are available, if this is indeed ever possible. However, today genetic engineering allows us to produce human-growth hormones, and perhaps it will not be too long before gene therapy can be used to make people taller. And there are other, similar cases. Therefore, we have an issue of whether justice provides a pro tanto reason genetically to enhance people to compensate for their misfortune in the genetic lottery. Many people will want to resist this claim and therefore I shall consider various objections, both to the effect that justice provides no such reason and to the effect that while justice may give us a reason to compensate in this way, there are overriding moral reasons not so to do. 2. Justice and distributive units It may be thought that it is only if we hold the dis- tributive unit of social concern to be utility (welfare) that we shall be inclined to favour genetic enhancements on the grounds of justice. While it is true, it may be argued, that people can be unhappy about not being, for example, very attractive, they are not worse off in the relevant sense, that is, worse off in a sense that would make compensations appropriate. However, I believe that on any plausible view of what the relevant distributive unit is, a pro tanto case can be made for genetic enhancements. Suppose that the relevant unit is resources, or opportunity for acquiring resources. Some people make less money than others because they are less intelligent or less talented. Of course, we can redistribute money to obtain a fair (for example equal) distri- bution. But perhaps we can also equalise people's monetary possessions by genetically enhancing people who are less talented or intelligent. So resourcist views do not automatically rule out genetic enhancements as a means of compensa- tion. However, Norman Daniels has come up with a different argument against medical enhance- ments. He distinguishes between treatments and enhancements along the lines suggested above. He then suggests that "medicine has the role of mak- ing people normal competitors, not equal competitors".6 So, at least within medicine, what we should aim at is equality in the sense that eve- ryone is a normal competitor (in the sense of hav- ing species-specific normal functioning), but we should not provide enhancements for people who are within the range of what is normal. Daniels calls this "the standard model for thinking about equality of opportunity". He contrasts it with "a more radical version", according to which "wher- ever possible we must actually try to reduce vari- ance in the distribution of capabilities, equalizing them wherever possible".7 There is, however, some tension between Dan- iels's standard model and another claim he makes, namely that we should "mitigate the effects of normally distributed capabilities through restric- tions on other inequalities we allow".7 So Daniels, if I understand him correctly, claims that if, for instance, some people are making less money because they are less intelligent, or talented, etc, and are not responsible for so being, we have a reason to compensate them, but in terms of social rather than natural assets. Daniels, then, seems to accept my claim to the effect that we have a pro tanto reason to compen- sate people who have suffered bad luck in the genetic lottery, even if the features in question fall within the range of what is normal; however, he adds that compensation for normal features should be dealt with in terms of social assets, and so not in terms of genetic enhancements. But if genetic interventions are appropriate compensa- tion in some cases (that involve treatments) but not in others (that involve enhancements), we must ask what the relevant difference between the cases is supposed to be. As a defence of his claim that medical enhance- ments are not appropriate compensation, Daniels argues that his standard model captures our actual concerns about equality better than the more radical version. However, I do not think that this defence is very compelling. First of all, Daniels compares his standard model to a view that is not very plausible. According to the radical version, inequalities in capabilities should be neutralised. But why should we insist on equalising such differences if there are alternative ways of compensating the worse off that are just as good or even better? Rather, we should aim at the best available compensation, and in some cases this may involve medically improving normal capabili- ties, while in others it may involve compensating in terms of social assets. Secondly, I am not so sure that Daniels is quite right about what our actual concerns are. Suppose that a boy is constantly teased because his ears stick out. And suppose that, from this boy's point of view, the best available compensation would be a surgical enhancement. I am inclined to think that many of us would favour surgery in such a case. Daniels does claim that "we generally resist assimilating these cases of enhancement to cases of treatment because we do not see them as meet- ing important needs".8 However, while we may not want to describe surgery for sticking-out ears as meeting an important need, we would have to be o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ 140 Does justice require genetic enhancements? very insensitive indeed to claim that there is no reason to fulfil the boy's desire for surgery. Nevertheless, Daniels may be correct in assuming that we believe that it would be much more important to provide treatment for another boy with, for example Lesch Nyhan syndrome. But granting this to Daniels hardly establishes his claim that, according to our actual concerns, medical enhancements do not fall within the lim- its of justice. An alternative account may be intro- duced, according to which we believe that as far as justice is concerned, there is sometimes a reason to compensate people for their misfortune in the genetic lottery in terms of medical enhancements but that, in general, there is a much stronger though similar reason medically to compensate people who have fared significantly worse in this lottery, in that they have ended up with severe (or even less severe) diseases. I shall develop this idea further in the final section of this article. Finally, I do not think that Daniels really tells us what the relevant difference between medical treatments and medical enhancements is sup- posed to be. He claims that we believe intuitively that there is a difference, but this is an intuition that may have to be rejected if it turns out that, like many other firmly held moral views, it is baseless. This becomes particularly acute in his own exam- ple of two boys, both of whom, it is predicted, will attain an adult height of 160 cm. One, however, has a growth-hormone deficiency resulting from a brain tumour, while the other has short parents and is short because of his (normal) genotype. As Daniels remarks, while the causes of their shortness may be different, they both suffer the same undeserved disadvantages in a "heightist" society, and they are both victims of the natural biological lottery. So how can it be right to treat these two cases differently? Another suggestion as to why justice does not require genetic enhancements comes from Allen Buchanan. Buchanan defends a principle of justice according to which "other things being equal, no person should be barred from the chance to have a minimally decent life as a result of undeserved natural (or social) deficits".9 So disadvantages resulting from the genetic lottery do not require compensation unless they preclude people from reaching a certain decent minimum. Assuming, then, that the genetic disadvantages that might "require" enhancements are generally not severe enough to preclude people from reach- ing this minimum, we generally do not have a rea- son to perform enhancements. (Actually, this is not quite right. There are people who fall below the minimum for [wholly or partly] independent reasons, but who can nevertheless be raised by performing genetic enhancements). Buchanan may either be claiming that, once the decent minimum is reached, justice does not pro- vide a pro tanto reason to improve a person's con- dition, or claiming that, all told, justice provides no reason to so improve. Since I am presently concerned with pro tanto reasons, I shall address the former claim, although this might not be what Buchanan has in mind. So the question is, does justice provide a pro tanto reason to raise people above the minimal level? I, myself, find it very difficult to understand why one should be troubled by a disadvantage that precludes a person from reaching the minimum, but not at all by a disadvantage that is compatible with reaching it. Changes in a person's level of benefits may be very gradual, and to suggest a particular level where her disadvantage no longer matters seems arbitrary. Why should our concern for disadvantaged individuals suddenly pop out of existence once the minimum is met? Of course, there is an issue of what counts as a decent minimum. The higher the minimum, the more plausible it may seem that there is no (not even a pro tanto) reason to compensate people who have reached it. But note that the higher the minimum, the larger the amount of cases in which people are prevented from reaching it due to fea- tures that have nothing to do with diseases. Buchanan does acknowledge that we may believe that it would be a good thing to provide benefits to people who already have a minimally decent life, but goes on to claim that the reason to do so need have nothing to do with justice.'0 However, it seems to me that the reason to provide such benefits is (sometimes) of the very same kind as the reason to provide benefits to people with, for example, cystic fibrosis - people have been dis- advantaged in the genetic lottery through no fault of their own. Rather, as I shall suggest in the final section, there is always a reason to compensate people who have been disadvantaged in the genetic lottery, but this reason can be outweighed by more urgent reasons to compensate people who have suffered greater disadvantages. So while there is sometimes a pro tanto reason to perform genetic enhance- ments, these will (mostly) be outweighed by stronger reasons to perform other medical tasks instead. 3. The end ofmedicine Perhaps there are other reasons, outside the realm of justice, why we should resist medical enhance- ments. It has been suggested that such enhance- ments do not comply with the end of medicine o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ Holtug 141 and, for that reason, are suspect. Here, one advo- cate of this view, David Hyman, addresses the issue of cosmetic surgery: "Cosmetic surgery ... collapses the distinction between health and the wishes or happiness of the patient. ... Necessity, requiring intervention, is constituted in the disease rather than in the patient's expressed desires. ... The physician's privilege to refuse to intervene is predicated on a consistent goal of health. ... Medicine is debased as it becomes the handmaiden of vanity and self- indulgence, in the name of 'being your best'."'II The core idea seems to be that medicine has an identifiable goal or end, and that this end establishes the limits as to what goals medicine ought to be used to achieve. This end is defined in terms of "a consistent goal of health". So whereas medicine should be used to treat diseases, it should not be used to enhance normal features in people. There is an issue here of whether the end of medicine can really be restricted to a consistent goal of health. Many of the tasks that are currently dealt with within medicine do not accurately fit this description. Consider, for instance, abortions or surgery for projecting ears. In any case, there is a more serious objection to Hyman's view. Let us, for the sake of argument, grant him that medicine has a well-defined goal or end. Why then should medicine not be used also to promote other ends? Consider this analogy. School-teachers are trained to educate children. But it is hardly plausible to argue that, for this reason, they ought not to use their skills to write poetry. More technically, the "consistent goal of health" to which Hyman refers can be interpreted as a descriptive notion that somehow captures the way that medicine is actually practised. In which case, we are left wondering why this notion should say anything about how medicine ought to be used. Or it can be interpreted as a (partly) evalua- tive notion, that says something about the proper aims of medicine; but then we need an explana- tion of why the evaluative features captured in this notion that rule out medical enhancements are valid or important. And while I cannot rule out that such an explanation can be given, I have yet to see a plausible suggestion as to how it might work. 4. The doctrine of correcting and enhancing in medicine It may be argued that I have not done justice to our actual moral intuitions about genetic en- hancements. When discussing Daniels's standard model, I considered the view that justice or fairness does not require enhancements; I now want to consider the issue of whether there are other moral values that might be brought into play, that would speak against such a medical practice. Consider: The Doctrine of Treating and Enhancing in Medicine Medical treatments are inherently more impor- tant than medical enhancements. This doctrine is intended to capture some important moral intuitions, for example to the effect that there is a moral difference between using genetic engineering to treat cystic fibrosis and using it to enhance a person's (normal) height. Note that the doctrine claims that treating is inherently more important, and not that it is more important because it has better conse- quences. I have deliberately made the doctrine rather vague, in that it does not specify to what extent medical treatments are more important or urgent than enhancements. It is both compatible with an absolute constraint against medical enhancements and with the claim that enhancements are only slightly less important than treatments, although, in order for it to have any real force, presumably it must claim that enhancements are significantly less important. Furthermore, I suppose that some adherents of this doctrine will want to claim that while medical treatments have a positive moral value, medical enhancements have a negative moral value. However, I believe that this doctrine does not adequately capture our intuitions. The standard way of testing such doctrines is to come up with two cases that differ only regarding the factor that the doctrine claims to be morally important, in our case, treatments versus enhancements. So consider the following two cases.'2 Jane is infected with HIV and she is about to develop AIDS. However, there is a new kind of gene therapy available that will boost her immune system - bring it back to normal - and so ensure that she never develops this disease. By giving her the therapy, we would be providing a treatment, since we would be bringing her immune system back to normal. In our second case, Helen has not yet been infected with HIV but, since she is a haemophiliac and since blood reserves at the hospital have not been screened for HIV, it is only a matter of time before she is infected, unless, that is, a new sort of gene therapy is performed on her that will make her immune. By giving her the therapy we would be enhancing her immune system, since we would o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ 142 Does justice require genetic enhancements? be giving her a desirable property that people do not normally (or naturally) have. Intuitively, it does not seem less important to provide the gene therapy for Helen than to provide (the other kind of) gene therapy for Jane. But this is what the doctrine of treating and enhancing in medicine says is the case. Therefore, this doctrine does not really capture our intuitions about treating and enhancing. I need to make two remarks about my argument against the doctrine of treating and enhancing. Firstly, since I first introduced the cases of Jane and Helen, evidence has been put forward in sup- port of the claim that perhaps some people have genotypes that make it less likely that they will be infected with HIV. Perhaps they are even immune. This evidence may threaten my claim that people do not normally or naturally have the desirable features that Helen may acquire. However, suppose no one had such features. Would that really make a difference as to how we should mor- ally evaluate Helen's therapy? I very much doubt it. Secondly, note that I am not in my argument using what Shelly Kagan has called a contrast argument."3 In a contrast argument, it is argued that if two cases only differ regarding one factor, and there is a moral difference between them, then the moral difference can be attributed to the differing factor, and this factor will then make a moral difference in any two cases that differ regarding it. Alternatively, if the two cases do not differ morally, then the factor never makes a moral difference. However, as Kagan points out, a factor may make a moral difference sometimes but not always (depending on which other factors are present). I am not using this kind of argument since I am not arguing that it can never make a moral difference whether a therapy is a treatment or an enhancement. I am arguing that since it does not always make a moral difference, the doctrine of treating and enhancing cannot be right. Admit- tedly, since I do not argue that it never inherently matters whether a treatment or an enhancement is performed, my argument is limited, but that is inevitable. Perhaps a different definition of "treatment" would confer greater plausibility on the doctrine of treating and enhancing. Above, I took a treatment to be an intervention that aims at curing or reducing the effects of a disease, where a disease is taken to be a departure from species- typical normal functioning. However, this defini- tion may be broadened to include the prevention of diseases as well. Since Helen's therapy will pre- vent her from being infected with HIV, it should not be considered an enhancement but merely an instance of disease-preventing treatment. But then recall Daniels's case of the two boys who are both predicted to be very short, one because of a growth-hormone deficiency, the other because of his (normal) genotype. If we were to provide growth hormones for the second child, we would not be providing a treatment, even according to our new definition. But why should that matter? Both bQys have a disadvantage (in a heightist society) they have not deserved because of their misfortune in the natural lottery. While it may matter that neither is responsible for the cause of his disadvantage, it does not seem to matter what the exact cause is - rather, it is the effect, and the fact that they are not responsible for it that matters. 5. Justice in health care To sum up, I have argued that a plausible and influential line of reasoning that supports com- pensating people who have severe diseases be- cause of their misfortune in the genetic lottery also speaks in favour of genetic enhancements. Justice requires genetic enhancements in the sense that it provides a pro tanto reason to make such enhancements available to (some) victims of the genetic lottery. Furthermore, I have argued that such enhancements cannot be ruled out on the basis of the claim that they do not conform to the end of medicine or by appealing to the doctrine of treating and enhancing in medicine, since neither of these invoke values that are very plausible. However, while justice provides us with a pro tanto reason to perform genetic enhancements, it also provides us with reasons to perform other tasks, such as providing medical care for people with serious diseases such as the four-year-old boy in Children's Hospital, and even for people with less serious diseases. Since the amount of resources available in the health care system or, in general, for compensating victims of the genetic lottery, is limited (even if we throw in extra resources, this is still the case), we shall have to prioritise. And, although I cannot argue this point here, I believe that when prioritising, we should give priority to the worse off."4 It simply matters more to provide benefits for the worse off than for the better off. Therefore, in general, it matters more to provide health care services for people with serious diseases than to provide genetic enhancements. But, of course, there may be exceptions. Maybe a child who is very unhappy about being short, as in Daniels's example, is a case in point. Maybe it is as urgent to provide a growth hormone for this child as it is to provide medical treatment for a o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ Holtug 143 person who has, say, a broken wrist. Obviously, though, we cannot answer this question ad- equately if we do not know the proper unit of social concern, and space does not allow me to discuss this issue here. So let me merely point out that I have already provided a reason to believe that, on any plausible view on what the proper unit is, there will be a pro tanto case for medical enhancements. A further issue that would have to be consid- ered, though, is what the long term effects would be of giving to certain children, for example, growth hormones, or appropriate kinds of gene therapy. It may be argued that giving in to height- ist ideals in this way will just further intolerant attitudes in society and so, even if we restrict our- selves to the issue of justice, such medical enhancements will be counter-productive in the long run. This is a legitimate worry, but one based on predictions very difficult to assess. How, exactly, will medical enhancements affect social attitudes? Another worry about long term effects that has received a great deal of attention is the risk of a slippery slope. I discuss this in some detail elsewhere. 15 These are difficult issues, and I cannot discuss them further here. However, I believe I have pro- vided a case for the claim that justice sometimes gives us a pro tanto reason for making genetic enhancements available; however, I have also sug- gested that, since justice generally gives us stronger reasons to perform other tasks such as providing treatments for people with severe diseases, perhaps, at the end of the day, genetic enhancements should not play an important role within publicly funded health care. What role, if any, they should play in private health clinics is a complicated matter that, again, I cannot address here. Acknowledgements I would like to thank Roger Crisp, Klemens Kap- pel, Kasper Lippert-Rasmussen and Julian Savu- lescu for helpful comments on an earlier version of this article. Nils Holtug, PhD, is Assistant Professor in the Department of Philosophy, University of Copenhagen, Denmark. References and notes 1 Kitcher P. The lives to come. The genetic revolution and human possibilities. London: The Penguin Press, 1996:13-14. 2 The term pro tanto reason was introduced into modern moral philosophy by Shelly Kagan, who writes: "A pro tanto reason has genuine weight, but nonetheless may be outweighed by other considerations. Thus, calling a reason a pro tanto reason is to be distinguished from calling it a prima facie reason, which I take to involve an epistemological qualification: a prima facie reason appears to be a reason, but may actually not be a reason at all, or may not have weight in all cases it appears to. In con- trast a pro tanto reason is a genuine reason - with actual weight - but it may not be a decisive one in actual cases." The limits of morality. Oxford: Clarendon Press, 1989: 17. The important point which is relevant for the paper is that a pro tanto reason is a genuine reason, but may be outweighed by other stronger reasons (like my reason to go shopping may be outweighed by my stronger reason to finish my paper). 3 I consider the issues of responsibility and justice in more com- plicated cases that involve choices, in Holtug N. Genetic knowledge in a just society. In: Thompson A, Chadwick R, eds. Genetic information: acquisition, access, and control. New York: Plenum Publishing Corporation (in press). 4 Rawls J. A theory of justice. Oxford: Oxford University Press, 1971: 65-80. 5 Bersheid E, Gangestad S. The social psychological implications of facial physical attractiveness. Clinics in Plastic Surgery 1982; 9:290. 6 Daniels N. The genome project, individual differences, and just health care. In Murphy TF, Lappe MA, eds. justice and the human genome project. Berkeley: University of California Press, 1994:122. 7 See reference 6:125. 8 See reference 6:126. 9 Buchanan A. Equal opportunity and genetic intervention. Social philosophy and Policy 1995;12:129. 10 See reference 9:130. 11 Hyman DA. Aesthetics and ethics:the implications of cosmetic surgery. Perspectives in Biology and Medicine 1990;33: 193,197,201. 12 See also Holtug N. Creating and patenting new life forms. In: Singer P, Kuhse H, eds. A companion to bioethics. Oxford: Basil Blackwell, 1998. 13 Kagan S. The additive fallacy. In: Fischer JM, Ravizza M, eds. Ethics. Problems and principles. Fort Worth: Harcourt Brace Jovanovich College Publishers, 1992. 14 See Parfit D. Equality or priority? The Lindley lecture 1991, University of Kansas, 1995, and reference 3. 15 Holtug N. Human gene therapy: down the slippery slope? Bioethics 1993;7: 402-19. o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .2 5 .2 .1 3 7 o n 1 A p ril 1 9 9 9 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_erkrdoxn5vfnvah553escyzyna	----	NimbusRomNo9L-Regu This is an Open Access document downloaded from ORCA, Cardiff University's institutional repository: http://orca.cf.ac.uk/101431/ This is the author’s version of a work that was submitted to / accepted for publication. Citation for final published version: Moragues Faus, Ana 2017. Problematising justice definitions in public food security debates: towards global and participative food justices. Geoforum 84 , pp. 95-106. 10.1016/j.geoforum.2017.06.007 file Publishers page: https://doi.org/10.1016/j.geoforum.2017.06.007 <https://doi.org/10.1016/j.geoforum.2017.06.007> Please note: Changes made as a result of publishing processes such as copy-editing, formatting and page numbers may not be reflected in this version. For the definitive version of this publication, please refer to the published source. You are advised to consult the publisher’s version if you wish to cite this paper. This version is being made available in accordance with publisher policies. See http://orca.cf.ac.uk/policies.html for usage policies. Copyright and moral rights for publications made available in ORCA are retained by the copyright holders. 1 Problematising justice definitions in public food security debates: towards global and participative food justices Ana Moragues-Faus In: Geoforum 2 Problematising justice definitions in public food security debates: towards global and participative food justices. In the current environment of austerity, social justice concerns are increasingly permeating the food security agenda. However, there is a need to clarify what it means to create socially just food systems conceptually and practically. To address this gap, this paper proposes an analytical framework to embed a more complex conceptualisation of justice in food security debates that also serves as a bridging device across competing narratives. This framework is mobilised to analyse the framing process of the UK media, which plays a key role in developing narratives that provide audiences with schemas for interpreting events. Results show the emergence of eleven frames which highlight different solutions to deliver food security. The application of the justice analytical framework evidences the contingent relationship between food security and justice claims and discusses how these food security frames address differently what counts as a matter of justice (including economic, socio-cultural and political dimensions) and who counts as a subject of justice, tackling issues around delimitation of scales and sites of justice. The analysis reveals polarised positions between whether the sites subject to justice should be individuals or structures and uncovers how political and global elements of justice are largely by-passed in food security debates. These conceptualisations of justice and associated policy recommendations neglect the potential for people to participate fully in the conditions and decisions that give rise to particular distributions of goods and bads in the first place; limiting the construction of shared responsibilities to deliver global and participative food justices. Key words: justice, food security, global food justice, frames, media, participative approaches 1 . I n t r o d u c t i o n Rising levels of obesity sitting alongside staggering undernutrition numbers situate food insecurity - or the inability of people to regularly access sufficient nutritious and culturally acceptable food – as one of the main social challenges of our time. Increasingly, the delivery of good food for all has been regarded as impossible without social justice (Cadieux and Slocum, 2015:3). Given the multifaceted processes and the complexity that 3 characterises food security dynamics, developing a successfully resilient and equitable global food system requires high levels of interaction between diverse stakeholders and a commitment to flexibility and learning in order to produce effective collective responses (Misselhorn et al., 2012). However, so far, solutions and conceptualisations - envisaged from policy, academic spheres and lobby groups - have mostly revolved around oppositional narratives (e.g. efficiency vs sufficiency, productivist vs demand-led) reproducing old dichotomies (e.g. production vs consumption, rural vs urban, local vs global, protectionism vs free trade, etc.) that are unable to address the systemic nature of the global food crisis and its unjust outcomes (Freibauer et al., 2011; Sonnino et al., 2014; Lang and Barling, 2012). This paper explores further how these competing food security narratives support or hinder the creation of socially just food systems conceptually and practically. Recently, there has been a growing body of work around food security framings that aims to unblock this polarised debate and gain an in-depth understanding of narrative formation and its policy implications. Framing is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation Entman, 1993: 52). Of particular interest is Mooney and Hunt's (2009) examination of food security as a consensus frame - that is, as a term that finds broad acceptance and consent but that is used to make different claims which result in divergent policy positions to address food insecurity. These can range from supporting genetic engineered technology to advocating for land reform. In the UK context, Kirwan and Maye (2013) use the food security consensus frame to scrutinise the relationship between scale and framing, paying particular attention to the polarisation between the official UK discourse – which supports sustainable intensification, market liberalisation and risk management policies (see also MacMillan & Dowler 2012) - and the side-lined proposals of local food systems advocates. These studies highlight how food security discourses have the capacity to produce social realities (see also Nally, 2014), which then translate into targets for policy interventions having implications for people s wellbeing (Sonnino et al., 2016). Despite the insights gained from previous framing analysis, an emerging food security agenda is calling for an examination of the relationality and potential convergence of 4 different narratives and associated interests in order to deliver good food for all (Jarosz, 2014; Hopma and Woods, 2014). For example, Sonnino et al (2016) recently analyse the distinct governance frameworks embedded in food security narratives in order investigate their potential integration. However, there is a need to explore further key concepts that can serve as bridging devices in the entrenched food security debate, and how those concepts are mobilised across different constituencies and deliberation spaces (i.e. academia, policy arenas, social movements and the general public). In this paper, I contribute to this agenda by focusing on social justice, a concept that has recently being recognised as one of the necessary starting points to analyse, and explore solutions to, food insecurity (Cadiex and Slocum, 2015: 3). Furthermore, in the context of economic crisis and austerity measures, both food security and social justice have also become more prominent in public debates of developed countries such as the UK, fuelled by reported increases in food poverty and inequality (see for example Oxfam and Church Action, 2013; Kneafsey et al., 2013). Particularly, social justice has become a fuzzy and ubiquitous word to qualify food poverty or food security challenges, seldom defined in the academic literature, policy arenas or media outlets. For example, Godfray et al (2010:818) state in an agenda setting Science paper that the food security challenge now also requires the delivery of social justice outcomes. Similarly, the European Commission (2010:1) argues that global health improvement depends on greater social justice ; or as Oxfam (2013:7) puts it, the answer to hunger and poverty it s simply justice . The limited engagement of these assertions with the rich literature on (social) justice1 poses a risk of generating a new consensus frame where justice is invoked as an abstract call for fairness. As Loo (2014) identifies, scholars efforts have been concentrated in understanding distributive food disparities leading to a narrow conceptualisation of justice that tends to by-pass the root causes of inequality. By unpicking the connections between food security and the justice literature, through this piece of research I set out to address recent calls for a more rigorous scholarship that engages in clarifying what it means to create socially just food systems (Cadieux and Slocum, 2015). 1 In many cases authors such as Fraser and Young use indistinctively the notion of justice and social justice. There are authors who advocate the use of justice when applied to individuals and social justice when referring to society. In this paper I use justice in order to integrate all the possible subjects and matters of justice. 5 This paper aims to problematise the concept of justice in order to foster progress in current food security debates. The main objective of this piece of work is to embed a more complex and reflexive conceptualisation of justice that allows critical evaluation of existing narratives and provides new elements to help in unblocking entrenched food policy positions. Questions such as what are the different conceptualisations of justice in food security debates, how different food security narratives converge and diverge around particular justice dimensions, and how these distinct justice definitions underpin support for particular policy solutions; are instrumental to assessing the potential contribution of notions of justice to the food security agenda. For that purpose, section two presents a literature review on justice and its intersections with food security, outlining an analytical framework to examine key elements in the process of constructing justice definitions. This framework illustrates the way in which different perspectives address what counts as a matter of justice (including economic, socio-cultural and political dimensions) and who counts as a subject of justice, tackling issues around delimitation of scales and sites of justice. In order to understand how different justice definitions are mobilised, I apply this analytical framework to the UK public food security debate. The analysis of media outlets constitutes an innovation given the lack of food security frame analysis of non-policy communications (with some exceptions, see Wells and Caraher(2014)). Furthermore, the mass media constitutes a key framing actor (see Herman and Chomski, 1988), actively intervening in people s environment by creating public narratives that provide audiences with schemas for interpreting events, that is, framings (Iyengar, 1994; Pan and Kosicki, 1993). For example, Sampei & Aoyagi-Usui (2009) found a direct correlation between newspaper coverage on climate change and an increase of awareness of the public, which was instrumental in the implementation of environmental policies by the Japanese government to cut emissions. The framing and presentation of events and news in the mass media can thus systematically affect how recipients of the news come to understand these events galvanising support for specific policies or interventions. Or in other words, frames influence opinions by stressing specific values, facts, and other considerations, endowing them with greater apparent relevance to the issue than they might appear to have under an alternative frame (Nelson et al., 1997:569). 6 The UK media analysis consisted of two-steps. First, 475 text units were analysed from eight main British newspapers2 published in the 2010-2014 period. The text units were selected from the lexis-nexis database by entering food security or food poverty as key words which resulted in a total of 2572 articles. The text units were selected according to their relevance, source, topic and number of articles in that source. Following Candel et al., (2014), an inductive frame analysis was applied using the qualitative software NVIVO to code problem definitions, proposed solutions and moral bases displayed in the different newspaper articles. The eleven resulting frames were discussed through semi- structured phone interviews with six experts representing non-governmental organisations and institutions working on sustainable development/sustainable food, trade unions, anti-poverty campaigners, academics and agricultural experts. These interviews were instrumental in the establishment of connections among frames and in the discussion of their relevance in public and political debates. Section three discusses these eleven food security framings constructed in the UK media with the objective of gaining an in-depth understanding of narrative formation and its policy implications. Section four presents the second analytical phase, where these eleven frames are further examined under the justice framework proposed to understand how food security debates operationalise different definitions of justice. Using justice as a bridging concept, section five discusses the emergence of two main justice narratives in UK popular debates and their (dis)connections with the justice literature. Finally, section six outlines the conclusions of the paper highlighting how superficial approaches to justice can hinder the delivery of good food for all. 2 . A n a n a l y t i c a l f r a m e w o r k t o p r o b l e m a t i s e j u s t i c e n a r r a t i v e s Food security is widely acknowledged as a situation that exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life (FAO, 2002). This definition appeals to basic notions of equality. In fact, food security is increasingly associated with notions of sustainability and justice, acknowledging that 2 The newspapers selected were the Guardian, Telegraph, The Sun, The observer, The Independent, The evening standard, Daily Mail and The Mirror. 7 food systems that are environmentally sound but socially unacceptable would not be resilient in the future and vice versa (Garnett and Godfray, 2012; Sonnino et al., 2014). In this regard, by and large, social movements, policy makers and academics resort to social justice as a way of qualifying food security. For example, Kirwan and Maye (2013) call for an official UK interpretation of food security that better accommodates social justice imperatives p. , while others identify specific social justice issues such as farmworker rights, economic concentration and hunger (Clancy, 1994). However, even when considering the different narratives under the food security consensus frame, there are difficulties to explicitly define justice, treating the term as a broadly shared antidote to distinct inequalities (based on race, class, gender, etc.) and generally promoting progressive rather than radical change (see for example Alkon, 2014; Holt Gimenez and Shattuck, 2011). In the study of the intersections between food security and justice the concept of food justice holds particular interest. This concept emerges out of diverse social and environmental justice concerns to highlight distinct socio-economic, racial and cultural inequalities within the food system. Food justice is intimately associated with a section of the US food movement that aims to combat causes, processes and outcomes that create food inequalities (Agyeman and McEntee, 2014), ensuring that the benefits and risks of where, what, and how food is grown and produced, transported and distributed, and accessed and eaten are shared fairly (Gottlieb and Joshi, 2010:6). Nevertheless, different voices raise concerns over the multiple meanings and interpretations of food justice (Gottlieb and Joshi, 2010; Sbicca, 2012), as well as its focus on consumption, access, race and class; generally privileging the local and micro-scale practices ahead of a more comprehensive and multilevel account of the food system (Cadieux and Slocum, 2015; Jarosz, 2014). As Cadieux and Slocum (2015:15) put it if food justice means anything, it may stand for nothing—or, worse, serve to undermine the credibility and rigor of substantive food justice practices . Accordingly, they call for more clarity around what it means to create socially just food systems including a more rigorous food justice scholarship and activism that discloses how increasing food justice claims actually further justice. In order to do so, there is a need to reconnect food justice and other food claims food security, food sovereignty, the right to food, food democracy, etc. see Sonnino et al., 8 (2016) for a recent review) with the vast literature that problematises the concept of justice more generally. In this section I outline debates and key contributions on justice from political philosophy, social science and geographical literature. This allows us to identify different dimensions of justice which are instrumental to broadening narrow definitions that have prevailed in food debates (Loo, 2014). 2.1 From distributive justice to productive justice Political scientist John Rawls (1971) reinvigorated the debate on social justice in the 1970s, defining social justice as fairness. Stemming from this definition, he proposed a way to design a system of justice, invoking the notion of a veil of ignorance on the initial endowments of different people, to ensure that the distribution of goods and bads is as equitable as possible. This fair equality of opportunity principle is complemented by a difference principle that only permits inequalities that work to the advantage of the worst-off. Equality is then the logical definition of justice as well as the guiding principle for an appropriate system of justice. This idea of distributive justice, that is, of justice as distributing the goods and bads that we have been assigned arbitrary at birth, has received criticisms from different fronts. First, Marxist or radical critics posit questions around the object of justice, that is, what needs to be equalised (i.e. outcomes or opportunities), and how to deal with spatial, temporal and social unevenness in the process of defining equal goods and bads. In this context, Harvey (1992) calls for the application of historical-geographical materialist methods to understand the production of power differentials that result in distinct conceptions of justice mobilised by diverse groups in the struggle for ideological hegemony. Consequently, considering justice as a universal principle is problematic since there are competing interpretations of good and bad that need to be acknowledged. In this line, the prominent political philosopher Iris Marion Young (1990) developed an early post-structural critique highlighting the politics of difference at play and stressing the difficulties associated with constructing a theory of justice to become a universal standard for evaluating institutions and relations. Young (1990) defines justice as the elimination or reduction of oppression, which has five faces – exploitation, marginalisation, powerlessness, cultural imperialism and violence. Finally, and likened to 9 the development of the capabilities approach (see Nussbaum, 2003), Sen (2009) recently formulated a theory of justice that aims to clarify how we can proceed to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice p. ix . His proposal is to build a comparative approach that allows us to assess the justice of a situation or process by reference to other situations without having a perfect theory. Taken together, these criticisms led to a formulation of productive or participative justice approaches that highlight not only the redistribution of material resources, but also the need to recognise different realities and allow them to participate in the development of institutions O Connor, 98). In this line, Fraser (2008) defines justice as parity of participation, identifying economic, cultural and political obstacles that prevent people from participating as full partners in social interaction. 2.2 A framework to unpack justice narratives The analysis of different conceptualisations of justice prompts us to identify two main challenges in defining justice: what counts as a matter of justice and who counts as a subject of justice. These challenges are examined below, and constitute a framework to analyse how justice narratives are constructed. 2.2.1 The what of justice Fraser (2008) proposes three dimensions to address what counts as a matter of justice. These three dimensions are directly linked to the evolution of theoretical approaches to justice as succinctly summarised above, but also highlight key elements at play when constructing a justice narrative. The first dimension relates to the economic elements of justice, where distributive justice scholars have made an important contribution. Debates around the economic dimension of justice include supporters of equalising outcomes but also scholars that emphasise the importance of applying justice parameters to redistribute opportunities (Waterstones, 2009). The second dimension relates to cultural aspects of justice, championed by post- structuralist critics who argue for the recognition of difference in front of universalising and sometimes blanket approaches in defining equality and fairness. Young (1990) addresses the importance of difference and identifies cultural imperialism as an essential 10 face of oppression, that is, how dominant groups construct a social hierarchy of difference by portraying their experiences and cultural products as superior. This hierarchy creates moral norms that condition the identification of injustices. Nevertheless, Smith (2000) points out that recent preoccupation with difference can ultimately be divisive, with the risk of eroding the sense of human sameness or close similarity to ground a broader egalitarian project (p.1151). Smith draws on the foundations of human sameness - including aspects of care and human needs – to call for a wider recognition of sameness in justice evaluations without abandoning the awareness of the particularity of persons and places brought by post-structuralist contributions. Finally, there is also a political dimension when defining the matter of justice. Early conceptualisations of distributive justice revolve around the application of justice principles. (owever, as O Connor (1998) points out, any definition of justice striving for equality should include the process of production of justice. This participatory or productive approach to social justice aims to include the potential for people to participate fully in the conditions, situations and decision that give rise to particularly distributions of goods and bads in the first place. For example, environmental justice claims are not only about redistributions of goods and bads, but also about whose values and visions of the environment are recognised as well as who participates in decision- making and deliberation spaces (Martinez-Alier, 2014; Moragues-Faus and Morgan, 2015; Sikor and Newell, 2014). One of the main characteristics of political injustice is, therefore, misrepresentation, where miss-framing – or when questions of justice are wrongly framed in a way that exclude some from consideration Faser, : - constitutes a key mechanism to create injustice. This miss-framing not only applies to what counts as a matter of justice but also who counts as a subject of justice, which includes defining who is affected by given structures and therefore holds a moral standing as a subject of justice in relation to it (see Barnett, 2012). 2.2.2 The who of justice The second key challenge in defining justice approaches revolves around determining who counts as a subject of justice, which includes clarifying the sites and the scales of justice. When demarcating the sites of justice, Barnett (2011) identifies two main focuses 11 in current moral and philosophical debates, either emphasising the coercive institutions of the basic structure or the non-coercive fields of personal conduct and ethos. In the first group, Rawls (1999) argues that the subject of justice should be the institutions of society which sustain inequalities - what he called the basic structure of society - while individual choices and attitudes should not be subject to the principles of justice. On the contrary, Cohen (2009) supports the inclusion of non-coercive structures - such as conventions, social ethos and personal choices - in the evaluation of justice. Young (2011) breaks this polarised debate to call for a more complex analysis of injustice that posits the individual as the central locus of ethical responsibility but also recognises the central role of structures in producing injustices. She calls for a shared responsibility, a model in which responsibility is distributed across complex networks of causality and agency (Barnett, 2011; Young, 2007). According to this model, being responsible means that one has an obligation to join with others in order to transform the structural processes to make their outcomes just (Young, 2011:96). Defining the sites subject to justice is closely related to problematising the scales or the scopes of justice. The scales of obligations of justice are widely considered to be defined by membership to a particular political community, mainly the nation-state (Miller, 2008; Rawls, 1971). This Rawlsian position basically holds that obligations of justice with other human beings presuppose the existence of shared political institutions Young, 2011:136), and therefore global distributive justice could only rely on the possibility of a global basic structure (Buchanan, 2003; Pogge, 2002; see Barnett, 2011 for a debate on the existence of a global institutional order). However, critics of this position highlight the arbitrary membership to a nation-state from a moral point of view, stressing the role of power in the evolution of political communities and boundaries (Young, 2011). Furthermore, relationships between people can be unjust without political institutions that govern them and, at the same time, non-governmental collective actors can have an important role in the creation of injustices. Indeed, current globalising processes – including discourses of justice and corresponding institutional arrangements but also capitalist developments (Fraser, 2008; Sikor and Newell, 2014) –have reshaped existing forms of inequality and modified the spaces available for the pursuit of justice beyond Westphalian states (Newell, 2012). 12 In contrast, other authors support a cosmopolitan-utilitarian view where moral agents have obligations to all human and even non-human beings (Singer, 1993; Unger, 1996). This stance also receives criticism for being overly individualistic, disregarding the roles of institutions and collective action as well as failing to propose specific actions. In the face of these two conceptions, Young (2011) argues for a shared responsibility of all agents contributing to structural processes involved in reproducing injustice. Those processes cut across jurisdictional boundaries creating moral geographies as illustrated by the environmental justice scholarship that demonstrates how place-specific policies and practices can have consequences that cross national boundaries, affect multiple scales, and extend across global networks (Holifield et al., 2009: 595). This review of justice conceptualisations allows the construction of an analytical framework to examine justice narratives. Table 1 summarises the dimensions involved in developing these narratives, as well as key questions and debates on the who and what of justice. This analytical framework constitutes a tool to navigate conflicting views, establish new connections among narratives and support the development of more complex accounts of justice in different food security approaches as discussed below. 13 Table 1. Summary of the analytical framework to identify key justice challenges and its constitutive dimensions Challenges Dimensions Key questions and debates The what of justice Economic: Redistribution Do narratives champion equalisation of outcomes (final goods enjoyed) and/or equalisation of opportunities (possibilities of access)? Social and cultural: Recognition Do narratives emphasise sameness of all humans and/or they call for recognition of difference (e.g. vulnerable groups)? Political: Representation Do narratives consider the application of justice principles (by who, to who) and/or do they problematise the process of producing justice (who participates in defining justice)? The who of justice Scales of justice Do narratives refer to national boundaries (linked to the capacity of the national state to act, e.g. legislate) and/or do they include global perspectives (other geographies are implicated in defining and applying justice principles)? Sites of justice Do narratives consider the structures of the basic society as the places to apply justice principles and/or they focus on individuals when evaluating justice? Source: Author s own elaboration 3. UK media food security framings: a segmented discursive foodscape The UK is a particularly interesting example to study food security frames given its combination of increasing dependency on food imports since the 1980s - which today constitute 40% of all food consumed in the UK (DEFRA, 2014a) – as well as rising numbers of people experiencing diet-related diseases and food poverty. In England, 64% of the population is overweight, with low-income families being particularly affected (HSE, 2013). Unsurprisingly, one of the main concerns now for the UK s population is food prices, which have increased by 18% in real terms between 2007 and 2012, affecting mainly low-income households (DEFRA, 2014b). Government figures estimate that there are around 13 million people in poverty in the UK, that is, one in five people (Department for Work and Pensions, 2014). Alternative sources state that four million people suffer from food poverty (Gordon et al., 2000) and that around three million people suffer from undernourishment or are at risk of being underfed (Brotherton et al., 2010). There has been an expansion of charity-run food banks around the UK, with estimates of around 500,000 residents are now reliant on food aid; and the Trussell Trust food banks have 14 delivered 3 days emergency food to 913,138 people in 2013/2014 (Lambie-Mumford et al.,2014). The media has been active in reporting some of these trends, and particularly the food banks surge (Wells and Caraher, 2014). The analysis of the UK media framing process from 2010 until 2014 resulted in the identification and characterisation eleven food security frames. Following the methodology of Candel et al. (2014), the table below summarises these frames, including the way in which each frame defines food insecurity as a problem and identifies related threats, key concepts and associated solutions suggested with examples of specific policies, and the moral bases mobilised. 15 Table 2 Food security (FS) frames emerging from UK media analysis Frames Problems definition/threats Key concepts / suggested solutions Policies Moral bases Distributive justice Increasing social inequalities, Violence and riots, Economic crisis, Cuts to public expenditure, Tax avoidance. People are arbitrarily born with distinct endowments. This is unfair and needs to be corrected in order to deliver FS for all. Redistribution and effective welfare enable FS. Increase minimum wage/living wages. Reform welfare state. We are arbitrarily endowed with different resources and skills. These should be redistributed fairly. Social justice as fairness and equality. Ecological Soil fertility loss, Pollution, Climate change, Pressures on biodiversity. Sustainable food production. Organic and environmentally friendly production practices. Animal Welfare. Inter-generational sustainability, Respect for nature, Eco-centrism. Food safety Spread of animal & plant diseases, Food chain complexity & inefficiencies, Food contamination, Cuts on public expenditure. Food safety standards are key for national FS. Increase controls of food safety. Scientific evidence, Hygenic-sanitary measures to ensure public health. Free trade Dependency on food imports and international trade, Price volatility and surge, Food chain complexity & inefficiencies, Spread of animal & plant diseases, Food contamination. Relying on competitive advantage theories and creating global food chains is the way to assure an efficient and affordable food provision for all. Liberalise trade. Freedom of choice, Efficiency. Individualistic Economic crisis, Short term crisis, Welfare dependency. People are responsible for their own choices and associated consequences, therefore they are the ones responsible for assuring FS in their households. Reduce welfare state, Achieve high levels of employment. Individual freedom and responsibility. Productionist Climate change and bad weather, Spread of animal & plant diseases, Population growth, Violence and riots, Anti-GM lobby. Stimulating production and increasing productivity. Invest in sustainable intensification techniques. Invest in technologies to increasing yields. Every country should be involved in producing more food and increase yields, using technological advances. Quality Unsustainable purchasing & eating practices, Increasing social inequalities, Economic crisis, Prices. Having access to nutritious, healthy and good food. Promotion of local foods. Promotion of east well guides, eat five a day. Nutritious food as a right for everybody. Promoting local/national and 16 indigenous food as part of the rural landscape, preserving identity. Regulatory Dependency on food imports and international trade, Price volatility and surge, Food chain complexity & inefficiencies, Unsustainable purchasing & eating practices, Food fraud and crime, Increasing social inequalities, Food industry lobbying & advertisement, Tax avoidance. Markets work inefficiently since they do not consider environmental, social and economic externalities or the fulfilment of the right to food. Governments are responsible for people s FS. Protectionist measures. Grants and payments to protect and support national markets and producers. Sugar and unhealthy food taxes. Regulate advertisement. State as steward of its citizens, responsible for delivering rights. Solidarity3 Increasing social inequalities, Population growth, Price surges, Economic crisis. People should help each other to achieve FS, building a Big society . Food assistance is an expression of this community and solidarity spirit delivering short-term and effective solutions for people in need. Empower communities, devolve resources. Human solidarity, community spirit, compassion. Sovereignty Increasing social inequalities, Food industry lobbying & advertisement, Dependency on food imports and international trade, Economic crisis, Land competition, Food chain complexity & inefficiencies, Financial speculation, Cuts in public expenditure, GMs. People and communities must have control over their food systems in order to deliver FS. Provide rights to people (access to land, water, seeds etc.). Protect local economies through trade barriers. Right to decide on the food system, tackle power imbalances. Technology Low farming productivity, Soil fertility loss, Population growth, Climate change and bad weather, Anti-GM lobby. New technological developments would deliver FS for all. Invest and deregulate the development of new technologies. Scientific evidence, Efficiency, Freedom of choice. 3 This fra e is a ed solidarity i order to refle t the des riptors used i the edia arti les a alysed. Ho e er, this defi itio of solidarity represe ts only one of the manifold meanings and practices of solidarity linked to food insecurity or food poverty dynamics. For example other radical approaches to solidarity or community building rooted in anarchist principles such are food not bombs (see Heynen (2010) are by and large absent in print media outlets. 17 According to experts interviewed, these frames capture the areas where conversation and controversies hinge in the UK food security debate. These frames show the complexity of food security narratives and the current segmentation of food debates that, among other limitations, preclude holistic accounts of food security challenges. This lack of holistic understanding is clearly exemplified by the suggested solutions presented by these narratives which tend to deal with specific aspects such as food safety, boosting production or improving welfare assistance. However, there are clear correlations among the different frames, many of them sharing the identification of key problems and in some cases elements of the moral basis. Indeed, when presented with these frames several respondents identified two main sets of frames that impinge on national policy debates reproducing the polarised positions outlined in the literature (see above). On the one hand the productionist, free trade and technology frames were acknowledged as the main drivers of national policy (and also European policy) which one expert described as a consistent policy position with regard to food production, food systems and the food economy . On the other hand, a second set of frames is made up of ecological, regulatory and distributive justice narratives; championed by a diverse set of charities, NGOs and think tanks in the UK. Experts showed a range of moral and justice concerns when asked about the relevance of these frames in public debates. For example, an interviewee supporting a mixture of productionist, free trade and technology frames to address food security challenges asserted that the UK is benign when it comes to social justice. ) think there is a general socio-democratic feel about the way you look at food as sort of an essential part of life . On the contrary, another informant downplayed the role of these three frames resorting as well to justice claims and stating that the productionist and the technology narrative are quite powerful because it is quite emotive to say we can feed hungry people and we can do it now. But now is not about a fair distribution of nutrition, it is about profits. In order to understand better these linkages between food security and justice, the next section analyses in depth how different definitions of justice are mobilised in the UK media food security frames. 18 4. What do you mean by justice? This section presents the results of the analysis of the UK food security frames under the justice analytical framework proposed in section two. The main aim is to understand how food security frames converge and diverge around particular justice dimensions, and, how these distinct justice definitions underpin support for particular policy solutions. 4.1 The matter of justice: economic, socio-cultural and political dimensions of justice in UK media food security frames The individualistic and the distributive justice frame are particularly engaged with defining what is the matter of justice, while the other frames generally position themselves around specific dimensions. The individualistic frame conceptualises the matter of justice as the equalisation of opportunities that arises from freedom of choice and de-regulation. Food insecurity is, therefore, the result of making the wrong individual choices, like purchasing the wrong foods, spending money on the wrong goods (e.g. TVs) or not working hard enough (see figure 1). This narrative enhances the sameness of individuals and individual rights, claiming that we all are free to make our own decisions and (in the UK) have similar basic conditions to fulfil our needs. Cultural recognition is therefore overlooked within this frame, avoiding any reference to distinct needs and values that groups in society might hold. This sameness resonates as fairness to part of the population, although in some cases is constructed in opposition to others, such as highlighting the use of foodbanks by immigrants (see for example The unpalatable truth about food banks the left finds so hard to swallow Daily Mail 13/05/2014) or stressing the wealth of the UK in front of other countries. Therefore, the initial premise of the sameness of individuals is frequently jeopardised by constructions of us and the others , raising questions about who is deserving or entitled to share this sameness. 19 Figure 1. Headlines related to the individualistic frame The free trade frame also champions the distribution of opportunities and appeals to sameness, in this case calling for all countries to participate under equal trade conditions in the global market. Based on the comparative advantage theory proposed by David Ricardo, the definition of food security under this frame is that free flow of goods allows food to be produced at the lowest possible cost, building global food chains that assure efficient and affordable food provision for all and providing business opportunities. Similarly to the individualistic frame, this definition of justice resonates with the neo- liberal project (Ferguson, 2010), reinforcing the expression of people s freedom of choice through the market. Also, these two frames do not consider the different initial endowments of individuals or countries that might jeopardise ideals of sameness when participating for example in the so-called free markets. Contrastingly, the distributive justice frame as deployed in the media appeals to fairness and equality, calling for a redistribution of goods and bads that lead not only to better opportunities but that result in fairer outcomes. The definition of the what of justice, 20 therefore, has an important economic dimension that coalesces around policy demands to have an effective welfare system and assure living wages. In fact, much of the rhetoric around this distributive justice frame refers to austerity measures such as benefits cuts and delays as a generator of food insecurity in the UK. This position has been reinforced by investigations on food banks showing that many of their users are suffering from changes in welfare payments (Lambie-Mumford et al., 2014, Oxfam and Church Action, 2013). While this frame is sensitive to different groups and needs - showcasing a number of individual s situations such as single mothers or disabled people - it does not unpack culturally diverse definitions of what is good food for all. In common with the individualistic frame, notions of sameness are also brought to the fore, highlighting different life stories and the idea that it might happen to you see for example article Food poverty: You think it doesn t happen to normal people The Guardian 06/06/2013). Figure 2. Headlines related to the distributive justice frame4 4 The image of the front page of the Daily Mirror shows a child crying. Following UNICEF ethical guidelines, this figure does not sho the hild s fa e to a oid further stig atisatio of a i age that has e o e i o i i the UK food poverty debate. 21 The analysis of the media food security frames under the justice framework reveals that practically none of them referred to the political dimension of justice or acknowledged (mis)representation mechanisms. Even in the distributive justice frame, there is an absence of contestation or reflection regarding how people suffering from food poverty are represented in this narrative, using (strategically) the rise of food bank users as a means to gather support for specific policies such as benefit reforms or living wage campaigns. Moreover, the participation of food insecure people in producing - and not only benefiting from - a more just system is seldom discussed. The only frame explicitly tackling issues of empowerment and participation is the sovereignty frame which argues for people and communities to regain control over their food systems in order to deliver food security. However, in the UK context food sovereignty is rarely discussed in the media apart from international events related to La Via Campesina and as an umbrella term to amalgamate a myriad of food initiatives. The diverse strands of independent, sustainable and organic food producers are, at present, little more than a glimmer of light in the gloom, but they may represent the beginnings of a movement for food sovereignty, restoring the connection between the people of this country and more democratic ownership of the chain that brings food from the fields to our kitchens (The Guardian, 26/03/2014) The food sovereignty frame relies on the right to decide over how food is produced and accessed. This clearly aims to tackle power imbalances as a precondition to delivering sustainability, justice, and ultimately food security for all. However, there are conceptual and practical gaps in linking these global goals to the needs of people actually suffering from food insecurity within the UK. Other frames do not engage directly in participation issues but draw attention to key aspects of the political process of defining justice. For example, the ecological frame highlights intergenerational aspects of sustainability and therefore the need to establish a temporal dimension in the formulation of policy solutions. In the case of the technological and safety frames, they make explicit references to application mechanisms of justice; specifically, they share a strong focus on scientific evidence as the basis to guide decision making. 22 The Government has a position on GM foods which is, provided that it's used safely and responsibly, it can deliver benefits and help address the challenge of global food security. We have to ensure public safety and take decisions based on the scientific evidence (Daily Mail, 11/12/2012). The technological frame deploys a particular definition of scientific evidence, including only experts and mostly natural science findings. Science is therefore seen as an objective and impartial tool to guide policy, and opponents to developments such as bio-technology are seen as having a lack of scientific understanding. This frame rarely includes as scientific evidence studies that highlight socio-cultural impacts of technology or the development of low-cost techniques and knowledge. Nevertheless, the safety frame includes reports and inquiries that rely on socio-economic data as scientific evidence and also highlights the importance of public perception in policy making processes (see for example Elliot (2014) on the horse meat scandal). 4.2 The who of justice: sites and scales of justice in food security frames The food security frames identified in the UK media engage more actively in constructing different sites and scales of justice than in defining the matter of justice. The analysis reveals a polarised position between whether the sites subject to justice are individual behaviours or the institutions of the basic structure and consequently support very distinct policy interventions. In the first case, the individualistic frame portrays food security as an individual matter, the site of justice or who is responsible are individuals instead of institutions. People s attitudes and practices are therefore key to being food secure, and independent from public policies or market forces, mainly understood as people making the wrong choices . (Edwina Currie) declared that food poverty simply did not exist. "It's about choices", she said. What she meant was that she believed poor people had enough money, they just spent it on fags and booze and getting into debt with loan sharks. (The Guardian 03/03/2014). In the UK, this frame has actively been deployed throughout the food banks debate contesting the reach or even existence of food poverty in the country. In this context, some commentators have argued that some people are taking advantage of the welfare system and charity initiatives and call for subsequent policy reform. 23 Some people like to believe that there has been this enormous upsurge in food poverty. My point is that there have always been poor people in this country. … The fact is that food banks are a new phenomenon. … )f you provide a service, people use it Daily Mail 13/03/2014). In a more nuanced position, the solidarity frame as deployed in the media avoids pointing out specific sites of justice, trying to de-politicise food security solutions through an appeal to build strong, active and self-reliant communities. In this line, these communities would not expect support from the state, what makes this discourse of building a Big Society 5 compatible with elements of the individualistic frame that locate individual freedom and responsibility at its heart. Similarly, these ideas of individual freedom and responsibility resonate with the technological and free-trade frame. These last two emphasise individual freedom particularly in relation to consumer and producer choice that is, by and large, materialised through access to global food chains. Nevertheless, these frames recognise the role of the state in delivering reforms that would progress in solving food insecurity by reinforcing free competition or the introduction of specific technologies. The Government sometimes says it can t do anything about the rise in food prices, but there are policies that can be adopted. On commodity prices, we need to double our efforts to support free-trade agreements in agricultural goods, support global adoption of high-yield crops and put food production at the heart of our development programmes abroad. (The Telegraph 19/06/2014) The Environment, Food and Rural Affairs select committee urged ministers to do more to bring in GM food and to get the EU to loosen curbs on the controversial crops to boost "food security" (The Mirror 01/07/2014) On a different note, the regulatory frame emphasises the responsibility of the national state to deliver food security for all, deeming markets as inefficient tools that ignore 5 The idea of the Big society in the UK is by and large mostly associated with the conservative agenda which aims to integrate a free market approach with a theory of social solidarity based on voluntarism (Alcock et al., 2012). This concept commends that a significant amount of responsibility for the running of a society is devolved to local communities and volunteers. 24 environmental, social and economic costs or the need to fulfil human rights, as illustrated below. Finally, there is an answer that lies in treating food security as a priority, rather than as a soft commodity to be traded like any other. Its production and trading should be much more heavily regulated, and protected (The Guardian 01/06/2011). (Tory MP) Laura Sandys called for ministers to take a stronger regulatory approach to tackle rampant food inflation, to prevent consumers being ripped off, and to rebuild the UK's consumer's declining food skills. That meant controlling food policy she said, rather than delegating it to the supermarkets (The Guardian 04/06/2013). The safety frame is also related to the regulatory frame, considering necessary the state intervention to regulate specific areas such as developing hygienic bureaucratic norms to assure minimum standards. Nevertheless, food frauds and scares have brought to the fore contrasting positions on responsibility, that is, whether food safety should be more regulated and monitored by public agencies or be devolved to the private sector. The distributive justice frame clearly posits socio-economic structures as the main root cause of food insecurity in the UK, and therefore also proposes that the principles of justice should be applied to institutions - which play a key role in solving unjust situations such as food insecurity. Indeed, this frame advocates for an improved welfare system and other forms of state intervention including raising minimum wages. Trussell Trust's chairman, said: )n the last year we've seen things get worse, rather than better, for many people on low incomes.' In a highly political intervention, he also called for the Government to drop sanctions against benefit claimants and increase the minimum wage (Daily Mail 17/04/2014). The polarised positions around individuals or structures as legitimate sites of justice permeate the definition of the scales of justice where the analysis reveals three main levels: global, national and local (including communities). By and large, the frames championing the institutions of the basic structure as a site of justice resort to the national level. For example, in the case of distributive justice the institutions pointed out as key for solving food insecurity are located at the national level and mostly relate to the UK s socio-economic policies. In this regard, global discourses around food security for all are rarely included in media articles tackling food poverty in the UK and therefore 25 restrict their definition of the who of justice to national boundaries. This particularly contrasts with debates and proposals of environmental justice which impinge upon global rights, and reinforces the idea that food justice claims tend to remain local and potentially exclusionary. The regulatory and safety frame also refers mostly to UK s responsibilities towards its citizens. Interestingly, the individualistic frame champions individual responsibility mostly in relation to the UK context but also in some cases this narrative is applied to justify why other countries are food insecure (e.g. due to corruption, mismanagement or lack of knowledge). While the individualistic frame is very much constructed around the UK and its particular dynamics, it does not necessarily stress the nation as the scale where justice principles and norms are implemented. However, as stated above, it does mobilise nationality and national borders to construct a compelling narrative. The productionist and the technology frame reinforce this global scale of justice, asserting that by increasing food production and developing technologies to increase yields in the UK and abroad, they are contributing to global food security. Children are going blind in impoverished parts of the world because of the "hang-up" of opponents of GM foods, Environment Secretary Owen Paterson warned today (The Evening Standard, 14/10/2013). At the other end of the spectrum, the quality frame celebrates - among other attributes - local food or British food, putting emphasis on high-quality products, grow-your-own or initiatives such as farmers markets. Some commentators argue that this construction of quality is linked to middle-class concerns that create exclusive spaces where these types of food can be accessed (see for example Guthman, 2008). In this frame, local/national and indigenous foods are presented as part of the British identity. Nevertheless, uncritical approaches to local food have been reported as detrimental in terms of advancing towards equality, since they might reproduce power relations and also develop narratives only accessible to certain societal groups with specific cultural and economic endowments (Johnston, 2008; Moragues-Faus, 2016). This potential local trap permeates the construction of justice developed by the solidarity frame where solutions to food insecurity revolve around the devolution of powers to communities and the 26 promotion of solidarity spirit by encouraging people to take an active role in their local environment. In Oxford, a food bank was started up four and a half years ago, based on a sustainable model. … As an example of the much-disparaged Big Society , it could hardly be bettered. The volunteers – who … come from every background and represent every political hue – have co-operated to build an organisation with local roots, serving local needs, without any subsidy from state sources whatsoever. (The Telegraph 19/06/2014). This local focus might potentially obscure the distinct capacity of communities to self- organise and tackle food insecurity. Indeed, having time to engage in alternative practices or voluntary activities often requires a pre-existing class privilege (Gross, 2009). Furthermore, this local community focus can reinforce negative unintended consequences of particular food practices on distant communities given the globalised character of existing food chains. Recent literature on food banks has been active in highlighting how food assistance programmes can indeed reproduce root causes of food insecurity and domination relations (see for example (Minkoff-Zern, 2014)). 27 Table 3. Analysis of food security frames under justice framework Challenges The what of justice The who of justice Dimensions Frames Economic: Redistribution Social and cultural: Recognition Political: Representation Scales of justice Sites of justice Distributive justice Outcomes and opportunities to be food secure Difference (vulnerable groups but not diverse definitions of good food), sameness (it can happen to you) Application National Structure Ecological Outcomes around environmental protection - *Future generations Global - Food Safety Outcomes to be food secure - *Scientific evidence National Structure Free trade Opportunities (countries) Sameness (trade agreements, free competition) Application Global Individual Individualistic Opportunities to access food Sameness but disregard of certain groups as less deserving Application National/global Individual Productionist - - - Global - Quality - - - Local - Regulatory - - - National Structure Solidarity Opportunities - - Local Not structures Sovereignty Opportunities (access to food but also rights) and outcomes - Production of justice Global/local Structures Technology - - *Scientific evidence Global Individual 28 5. Neoliberal and structural justice narratives in food security debates The analysis of media food security frames under the justice framework allows identifying new linkages and gaps that result in the characterisation of two main justice narratives. Firstly, the free trade, individualistic and technology frames share a neoliberal justice narrative revolving around providing equal opportunities, championing application of principles and identifying individual practices as key sites of justice. The scale of this neoliberal narrative is rather fluid, with a strong global focus but favouring the interests and needs of a particular nation and its citizens. The term neoliberal justice has been used in the literature to emphasise a formulation of justice that reduces the explanations of social and political theory to the behaviour of individual actors rather than structures of society (Okereke, 2007), as well highlighting its connection to the neoliberal project based on liberating individual entrepreneurial freedoms within an institutional framework characterised by strong private property rights, free markets, and free trade (Harvey, 2005:2). However, the neoliberal justice narrative in food security public debate combines this policy framework with ideas of sameness and equal opportunities to access markets or jobs. Secondly, the distributive justice, food safety and regulatory frames construct a structural justice narrative that not only focuses on opportunities but is largely occupied with the actual outcomes and the application of justice principles. These principles are applied to the institutions of the basic structure primarily located at the national level. The term structural injustice has been used to reject individualising and blaming justice perspectives. According to Young (2006) structural injustice exists when social processes put large categories of persons under a systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time as these processes enable others to dominate or have a wide range of opportunities for developing and exercising their capacities (p.114). Nevertheless, and contrarily to the narrow structural justice narrative used in food security debates, Young argues that individuals bear responsibility for structural injustice because they contribute by their actions to the processes that produce unjust outcome (p.119). Consequently, the structural processes can be altered only if many actors in diverse social positions work together to intervene in these processes to produce different outcomes p. . However, the structural justice narrative identified throughout the media analysis falls into a rather narrow conceptualisation of structure that hinders the development of a 29 range of state and non-state led actions to correct current food insecurity dynamics. That is, to propose solutions that go beyond welfare reforms and minimum salaries. Finally, the rest of the food security frames do not articulate a comprehensive justice narrative. However, they bring to the fore specific aspects of justice such the importance of considering the temporal aspects in the definition of justice (ecological frame), the role of communities and local spaces (solidarity frame) or the importance of questioning how justice is produced (sovereignty frame). In general, the UK media food security frames show a rather narrow definition of justice in relation to the existing justice literature and its development since the 70s - when liberal definitions of justice started to be contested. Nevertheless, the results of the analysis show that justice claims are central in building an appealing food security frame. The structural justice narrative constitutes a clear example of this lack of definition and evidences the need to further qualify justice assertions by its proponents - particularly since, according to interviewees, the media frames capture the wider UK food security debate. This narrative aims to bring to the fore social justice goals in the convoluted UK media, however, it fails to articulate a comprehensive account of cultural recognition, over-relying on food banks as a key framing device of food insecurity. This results in a definition of vulnerable groups in relation to food bank users (a characteristic shared by other frames) which highlights specific food practices (mainly at the consumption end) and obscures other roles that as citizens all of us might perform. This focus also excludes different lived experiences of food poverty that do not necessarily include using food banks; as well as different accounts of what is good food. Accordingly, this narrative overlooks the existence of vulnerable distant communities and how proposed policies might contribute to reproduce or mitigate global inequalities. A more systemic account of food security, often absent in food poverty debates, will allow the uncovering of the existing linkages with global processes implicated in current and future food insecurity outcomes such as climate change or food production. As illustrated above, the sole focus on the institutions of the basic structure as the sites of justice precludes establishing these multi-level linkages that acknowledge a contingent geography of injustice. This justice narrative could benefit from engaging with shared responsibility conceptualisations of justice when identifying who is the subject of justice, and therefore its policy targets. Finally, this frame also disregards the importance of participation when addressing 30 inequality which constitutes a key mechanism to redress structural and root causes of injustice (see Fraser, 2009). 6. Conclusions: reclaiming justice to deliver food security for all This paper contributes to the current food security agenda by exploring the connections and disconnections of public food security narratives and their relationality through the concept of justice. In order to broaden and deepen the linkages between food security and justice literature, and practice, two key justice challenges (the what and the who of justice) are expounded to build an innovative analytical framework. The application of this innovative justice framework to the analysis of the UK media food security debate has revealed gaps and ways forward for food security practitioners and the associated scholarship. First, the identification and characterisation of eleven food security frames reveal clear disconnections and partial accounts of the systemic nature of food insecurity, including the proposal of disparate solutions and policies (see table 2). These marked contrasts limit the adoption of integral approaches and innovative practices that have proved instrumental in delivering good food for all- as the literature shows elsewhere (see for example Brunori et al., 2013). Secondly, the media frames engage recurrently with different notions of justice, revealing the contingent relationship between food security and justice claims. Furthermore, the concept of justice constitutes a bridging device across narratives that has uncovered different controversies and relations than those recurrently portrayed in academic and policy debates. Results of the analysis show a clear polarisation with respect to the economic dimension of justice (with frames championing opportunities vs those focused on outcomes), the cultural dimension (where sameness and recognition of difference are seldom articulated) and the site of justice (whether the application of justice should pivot around individuals or the institutions of the basic structure). These distinct justice definitions have clear policy implications since they support different types of policies, for example by setting targets regarding access to food vs resulting levels of malnutrition (opportunities/outcomes), developing universal policies or working with differentiated groups (sameness/difference), and reinforcing state regulation or reducing public intervention (structure/individual). The UK media frames also showcase a very limited reflection of 31 the spatial interdependencies implicated in the food system and their role in achieving global food security outcomes, mostly limiting policies or actors interventions to the national interest. Despite the centrality of justice in popular perceptions of food security in the UK, the analysis reveals a partial engagement with justice definitions and a general overlooking of the political dimension of justice – linked to (mis)representation and participation. Yet, explicit problematisation of who participates in decision-making process and whose rights and values are recognised has proven to be essential in resolving entrenched inequalities (see Martinez-Alier, 2014). This lack of engagement in public discourse with the ideas espoused in the participative justice literature mirrors the deficiencies of academic contributions (see Loo, 2014). Furthermore, experts interviewed acknowledged that the media frames identified captured the wider public and policy food security debate; thus signalling a generalised failure of civil society, public and private stakeholders to include the process of producing justice in current narratives and policy solutions. In this context, the justice framework proposed is instrumental to unpick further these linkages between food security and justice. This framework provides a tool to evaluate justice assertions but also prompt polarised narratives and associated stakeholders to evaluate (and further define) what type and whose justice they are championing. Specifically, this analytical tool acknowledges the role of framing as a key mechanism of generating injustice at the economic and social level (Fraser, 2008) by creating powerful discourses that outline who is subject to what justice principles and producing social realities that translate into targets for policy. This type of analytical tool contributes to the implementation of deliberative and reflexive food governance approaches based on fostering spaces for learning and adapting social solutions to collectively resolve food insecurities (Marsden, 2013). For example, using justice as a bridging concept we start to ask individualistic narratives how they address cultural diversity and different notions of good food, or how distributive justice proponents tackle the global scale to actually deliver good food for all. Similarly, this framework brings to the forefront different questions to elucidate in food policy arenas such as where is the site of responsibility or who is deserving to be considered in food security interventions. Ultimately, linking food security narratives to the justice framework can help to develop integrative and 32 participative policies that cut across scales, sites and dimensions of justice in order to deliver good food for all. Consequently, this framework aims not only to guide critique but also to support the creation of counter and equally compelling narratives which can begin to reconstruct a more democratic and inclusive food politics (Moragues-Faus, 2016). This paper proposes to use justice as a common thread to hold new discussions and connect food policy arenas to other spaces tackling socio-economic, cultural and political inequalities. Furthermore, and building on Young s and Fraser s work, ) contend that a food security approach that aims to provide consistently good food for all needs to incorporate a definition of justice that i) provides opportunities to access good food with a strong emphasis on final outcomes, ii) appeals to the equal rights of all peoples to food but also acknowledges different needs and definitions of good; and iii) includes the potential for people to participate fully in the conditions, situations and decisions that give rise to particular distributions of goods and bads in the first place. Recognising and unpacking the political elements of justice that are clearly manifested through representation and misrepresentation processes are key to advancing in the current conceptualisations and practices of participative food justices. Truly participative food justices necessarily depart from the acknowledgment of the global processes that connect individuals and institutions across different geographies. Indeed, multi-scalar approaches to food security and justice are essential to grasp contemporary fluid liaisons between place and power (Bauman, 2013; Conversi, 2016) which are currently fostering the emergence of multilevel, cross-sectorial and multi-site networks that do not conform to administrative boundaries, ranging from transnational corporations to sustainable food cities networks or global justice movements. This multi- scalar approach provides the grounds to dissolve individual-structure dichotomies and build shared responsibilities to deliver global and participative food justices. References Agyeman, J., McEntee, J., 2014. Moving the Field of Food Justice Forward Through the Lens of Urban Political Ecology. Geogr. Compass 8, 211–220. 33 Alcock, P., Kendall, J., Parry, J., 2012. From the third sector to the Big Society: consensus or contention in the 2010 UK General Election? Volunt. Sect. Rev. 3, 347–363. Alkon, A., 2014. Food Justice and the Challenge to Neoliberalism. Gastron. J. Food Cult. 14, 27–40. Barnett, C., 2012. Situating the geographies of injustice in democratic theory. Geoforum 43, 677–686. Barnett, C., 2011. Geography and ethics: Justice unbound. Prog. Hum. Geogr. 35, 246– 255. Bauman, Z., 2013. Liquid modernity. Jogn Wiley & Sons. Brotherton, A., Simmonds, N., Stroud, M., 2010. Malnutrition Matters Meeting Quality Standards in Nutritional Care [WWW Document]. Br. Assoc. Parenter. Enter. Nutr. (BAPEN ). URL http://www.bapen.org.uk/pdfs/toolkit-for-commissioners.pdf (accessed 8.19.14). Brunori, G., Malandrin, V., Rossi, A., 2013. Trade-off or convergence? The role of food security in the evolution of food discourse in Italy. J. Rural Stud. 29, 19–29. Buchanan, A., 2003. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law: Moral Foundations for International Law. Oxford University Press, Oxford. Cadieux, K., Slocum, R., 2015. What does it mean to do food justice. J. Polit. Ecol. 22, 1– 26. Candel, J.J.L., Breeman, G.E., Stiller, S.J., Termeer, C.J.A.M., 2014. Disentangling the consensus frame of food security: The case of the EU Common Agricultural Policy reform debate. Food Policy 44, 47–58. Clancy, K., 1994. Commentary social justice and sustainable agriculture: Moving beyond theory. Agric. Human Values 11, 77–83. Cohen, G., 2009. Rescuing justice and equality. Harvard University Press, Cambridge, Massachusetts. Conversi, D., 2016. Sovereignty in a Changing World: From Westphalia to Food Sovereignty. Globalizations 13, 484–498. DEFRA, 2014a. Basic Horticultural Statistics 2014. London. DEFRA, 2014b. Food Statistics Pocketbook 2014. Department for Work and Pensions, 2014. Households below average income (HBAI): 1994/95 to 2012/13. Elliot, C., 2014. Elliott Review into the Integrity and Assurance of Food Supply Networks . A national Food Crime Prevention Network, HM G. Entman, R., 1993. Framing: Towards clarification of a fractured paradigm. J. Commun. 43, 51–58. European Commission, 2010. The EU Role in Global Health. COM(2010)128 final. Accessed 01/03/2017 http://eur-lex.europa.eu/legal- content/en/TXT/?uri=CELEX:52010DC0128 34 FAO, 2002. The State of Food Insecurity in the World 2001. Rome. Ferguson, J., 2010. The Uses of Neoliberalism. Antipode 41, 166–184. Fraser, N., 2008. Scales of justice: Reimagining justice in a globalizing world. Polity, Cambridge. Fraser, N., . Justice interruptus: Critical reflections on the postsocialist condition. Routledge, New York. Freibauer, A., Mathijs, E., O´Brien, L., Treyer, S., 2011. Sustainable Food Consumption and Production in a Resource-Contrained World (Report), European Commission – Standing Committee on Agricultural Research (SCAR). The 3rd SCAR Foresight Exercise . Garnett, T., Godfray, C., 2012. Sustainable intensification in agriculture. Navigating a course through competing food system priorities. Godfray HCJ, Beddington JR, Crute IR, et al. (2010) Food security: the challenge of feeding 9 billion people. Science 327(5967): 812–818. Gordon, D., Levitas, R., Pantazis, C., Patsios, D., Payne, S., Townsend, P., Adelman, L., Ashworth, K., Middleton, S., Bradshaw, J., Williams, J., 2000. Poverty and social exclusion in Britain, Joseph Rowntree Foundation. Gottlieb, R., Joshi, A., 2010. Food justice. MIT Press, Cambridge, Massachusetts. Gross, J., 2009. Capitalism and Its Discontents: Back-to-the-Lander and Freegan Foodways in Rural Oregon. Food Foodways 17, 57–79. Guthman, J., 2008. Bringing good food to others: investigating the subjects of alternative food practice. Cult. Geogr. 15, 431–447. Harvey, D., 2005. A brief history of neoliberalism. Oxford University Press, USA, Oxford. Harvey, D., 1992. Social Justice, Postmodernism and the City. Int. J. Urban Reg. Res. 16, 588–601. Herman, E.S. and Chomsky, N., 1988 Manufacturing Consent: The Political Economy of the Mass Media. Pantheon Books, USA. Heider, F., 1958. The psychology of interpersonal relations. Wiley, New York. Heynen, N., 2010. Cooking up non-violent civil-disobedient direct action for the hungry: Food Not Bombs and the resurgence of radical democracy in the US. Urban Stud. 47, 1225–1240. Holt Gimenez, E., Shattuck, A., 2011. Food crises, food regimes and food movements: rumblings of reform or tides of transformation? J. Peasant Stud. 38, 109–144. (opma J and Woods M Political Geographies of Food Security and Food Sovereignty . Geography Compass 8(11): 773–784. HSE, 2013. Health Survey for England - 2012. (mr) Web Master, United Kingdom. Iyengar, S., 1994. Is Anyone Responsible?: How Television Frames Political Issues. University of Chicago Press, Chicago and London. Jarosz, L., 2014. Comparing food security and food sovereignty discourses. Dialogues 35 Hum. Geogr. 4, 168–181. Johnston, J., 2008. The citizen-consumer hybrid: ideological tensions and the case of Whole Foods Market. Theory Soc. 37, 229–270. doi:10.1007/s11186-007-9058-5 Kirwan, J., Maye, D., 2013. Food security framings within the UK and the integration of local food systems. J. Rural Stud. 29, 91–100. Kneafsey, M., Dowler, E., Lambie-Mumford, H., Inman, A., Collier, R., 2013. Consumers and food security: Uncertain or empowered? J. Rural Stud. 29, 101–112. Lambie-Mumford, H.., Crossley, D., Jensen, E., Verbeke, M., Dowler, E., 2014. Household Food Security in the UK: A Review of Food Aid [WWW Document]. Dep. Environ. Food Rural Aff. URL https://www.gov.uk/government/uploads/system/uploads/attachment_data/file /283071/household-food-security-uk-140219.pdf (accessed 12.16.14). Lang T and Barling D (2012) Food security and food sustainability: reformulating the debate. The Geographical Journal 178(4): 313–326. Little, J., Austin, P., 1996. Women and the rural idyll. J. Rural Stud. 12, 101–111. Loo, C., 2014. Towards a More Participative Definition of Food Justice. J. Agric. Environ. Ethics 27, 787–809. MacMillan, T., Dowler, E., 2012. Just and sustainable? Examining the rhetoric and potential realities of UK food security. J. Agric. Environ. ethics 1–24. Marsden, T., 2013. From post-productionism to reflexive governance: Contested transitions in securing more sustainable food futures. J. Rural Stud. 29, 123–134. Martinez-Alier, J., 2014. The environmentalism of the poor. Geoforum 54, 239–241. Miller, D., 2008. National responsibility and global justice. Crit. Rev. Int. Soc. Polit. Philos. 11, 383–399. Minkoff-Zern, L.-A., 2014. Subsidizing farmworker hunger: Food assistance programs and the social reproduction of California farm labor. Geoforum 57, 91–98. Misselhorn A, Aggarwal P, Ericksen P, et al. (2012) A vision for attaining food security. Current Opinion in Environmental Sustainability 4(1): 7–17. Mooney, P.H., Hunt, S.A., 2009. Food Security: The Elaboration of Contested Claims to a Consensus Frame*. Rural Sociol. 74, 469–497. Moragues-Faus, A., 2016. Emancipatory or neoliberal food politics? Exploring the politics of collectivity of buying groups in the search for egalitarian food democracies. Antipode 49: 455–476 . Moragues-Faus, A., Morgan, K., 2015. Reframing the foodscape: the emergent world of urban food policy. Environ. Plan. A 47, 1558–1573. Murdoch, J., Lowe, P., Ward, N., Marsden, T., 2003. The Differentiated Countryside. Routledge , London. Nally, D., 2014. Governing precarious lives: land grabs, geopolitics, and food security. Geogr. J. n/a-n/a. Nelson, T., Clawson, R.A., Oxley, Z.M., 1997. Media framing of a civil liberties conflict and 36 its effect on tolerance. Am. Polit. Sci. Rev. 91, 567–583. Nussbaum, M., 2003. CAPABILITIES AS FUNDAMENTAL ENTITLEMENTS: SEN AND SOCIAL JUSTICE. Fem. Econ. 9, 33–59. O Connor, J., . Natural causes: Essays in ecological Marxism. Guilford Press, New York. Okereke, C., 2007. Global justice and neoliberal environmental governance: ethics, sustainable development and international co-operation. Routledge, London; New York. Oxfam and Church Action, 2013. Walking the Breadline: The scandal of food poverty in 21st-century Britain. Oxfam, 2013. The Power of People against Poverty. Accessed 01/03/2017 https://www.oxfam.org/sites/www.oxfam.org/files/oxfam-strategic-plan-2013- 2019.pdf Pan, Z., Kosicki, G., 1993. Framing analysis: An approach to news discourse. Polit. Commun. 10, 55–75. Pogge, T., 2002. Moral universalism and global economic justice, in: World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms. Polity Press, Cambridge, pp. 91–117. Rawls, J., 1999. The Law of Peoples. Harvard University Press, Cambridge, Massachusetts. Rawls, J., 1971. A theory of justice. Harvard University Press, Cambridge. Sampei, Y., Aoyagi-Usui, M., 2009. Mass-media coverage, its influence on public awareness of climate-change issues, and implications for Japan s national campaign to reduce greenhouse gas emissions. Glob. Environ. Chang. 19, 203–212. Sbicca, J., 2012. Growing food justice by planting an anti-oppression foundation: opportunities and obstacles for a budding social movement. Agric. Human Values 29, 455–466. Sen, A., 2009. The idea of justice. Harvard University Press, Harvard. Sikor, T., Newell, P., 2014. Globalizing environmental justice? Geoforum 54, 151–157. Singer, P., 1993. Practical Ethics. Cambridge University Press, Cambridge. Smith, D.M., 2000. Social justice revisited. Environ. Plan. A 32, 1149–1162. doi:10.1068/a3258 Sonnino, R., Marsden, T., Moragues-Faus, A., 2016. Relationalities and convergences in food security narratives: towards a place-based approach. Trans. Inst. Br. Geogr. 41: 477–489 Sonnino, R., Moragues-Faus, A., Maggio, A., 2014. Sustainable Food Security: An Emerging Research and Policy Agenda. Int. J. Sociol. Agric. Food 21, 173–188. Unger, P., 1996. Living high and letting die: Our illusion of innocence. Oxford University Press, New York. Walker, P.A., 2006. Political ecology: where is the policy? Prog. Hum. Geogr. 30, 382– 37 395. Wells, R., Caraher, M., 2014. UK print media coverage of the food bank phenomenon: from food welfare to food charity? Br. Food J. 116, 1426–1445. Young, I., 2011. Responsibility for Justice. Oxford University Press, Oxford. Young, I., 2007. Global Challenges: War, Self- determination and Responsibility. Polity Press, Cambridge. Young, I., 2006. Responsibility and global justice: A social connection model. Soc. Philos. Policy. Young, I.M., 1990. Justice and the Politics of Difference. Princeton University press, Princeton. 
work_es6a3ejunjccxb4gkuktqvjl4a	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_f5gerpyfjbhm7lize3dd64gyqm	----	econstor Make Your Publications Visible. A Service of zbw Leibniz-Informationszentrum Wirtschaft Leibniz Information Centre for Economics Ash, Michael; Boyce, James K. Working Paper Measuring corporate environmental justice performance Working Paper, No. 2008-16 Provided in Cooperation with: Department of Economics, University of Massachusetts Suggested Citation: Ash, Michael; Boyce, James K. (2008) : Measuring corporate environmental justice performance, Working Paper, No. 2008-16, University of Massachusetts, Department of Economics, Amherst, MA This Version is available at: http://hdl.handle.net/10419/64231 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in EconStor may be saved and copied for your personal and scholarly purposes. You are not to copy documents for public or commercial purposes, to exhibit the documents publicly, to make them publicly available on the internet, or to distribute or otherwise use the documents in public. If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. www.econstor.eu DEPARTMENT OF ECONOMICS Working Paper UNIVERSITY OF MASSACHUSETTS AMHERST Measuring Corporate Environmental Justice Performance by Michael Ash and James K. Boyce Working Paper 2008-16 Measuring Corporate Environmental Justice Performance∗ Michael Ash† James K. Boyce‡ October 31, 2008 Abstract Measures of corporate environmental justice performance can be a valuable tool in efforts to promote corporate social responsibility and to document systematic patterns of environmental injustice. This paper develops such a measure based on the extent to which toxic air emissions from industrial facilities disproportionately impact racial and ethnic minorities and low-income people. Applying the measure to 100 major corporate air polluters in the United States, we find wide variation in the extent of disproportional exposures. In a number of cases, minorities bear more than half of the total human health impacts from the firm’s industrial air pollution. Keywords: Corporate social responsibility; corporate environmental performance; environmental justice; air pollution JEL codes: M14, Q52, Q56 1 Introduction This paper analyzes corporate environmental justice performance, measured in terms of the human health impacts of airborne emissions of toxic chemicals from their industrial facili- ties. Prior studies of corporate environmental performance (CEP) have focused primarily on total emissions of pollutants, remediation efforts, or aggregate environmental damage. Prior studies of environmental justice (EJ) have examined the extent to which hazards dispropor- tionately impact specific groups, such as racial minorities. To the best of our knowledge, this paper is the first effort to combine these two strands of research by building a measure of corporate environmental justice performance (CEJP). ∗Corresponding author: Michael Ash, Department of Economics, Thompson Hall, University of Mas- sachusetts, Amherst, MA 01003; mash@econs.umass.edu. Acknowledgments: We thank the Ford Foun- dation and the V.K. Rasmussen Foundation for support of the research. Bengi Akbulut, Grace Chang, Rich Puchalsky, Helen Scharber, Gül Ünal, and Ann Werboff provided outstanding research assistance and data management. The authors alone bear responsibility for the analysis. †Associate Professor, Department of Economics, Center for Public Policy and Administration, and Polit- ical Economy Research Institute, University of Massachusetts, Amherst ‡Professor, Department of Economics and Political Economy Research Institute, University of Mas- sachusetts, Amherst 1 The difference between CEP and EJ studies is partly methodological: in CEP, the unit of analysis is the source of pollution, the firm or an individual facility; in EJ, the unit of analysis is the receptor, the community or households on the receiving end. They also differ in their audiences and aims. The main audience for CEP research is socially responsible managers, investors, and consumers, with the main aim being to improve firm behavior. The main audience for EJ research is the impacted communities and the responsible government officials, the main aim being to protect communities from disproportionate hazards. This paper presents a measure of corporate environmental justice performance, in an effort to bridge the gap between CEP and EJ research. Our measure is based on data that link pollution exposures to pollution sources. The audiences for this work span the CEP and EJ audiences, including both corporate social responsibility advocates who want information about this important dimension of environmental performance, and environmental justice advocates who want documentation on systematic patterns in corporate behavior. The paper is organized as follows. In Section 2, we describe the datasets and methodology for matching the exposure and Census data. Our environmental data come from a source-and-receptor model of air-toxics release and exposure from the U.S. Environment Protection Agency (EPA). We merge the EPA data with socioeconomic data from the U.S. Bureau of the Census to analyze expo- sure disparities by race, ethnicity, and income. This facility-level information is aggregated to obtain firm-level measures using a dataset on corporate ownership of industrial facilities developed at the Political Economy Research Institute (PERI) of the University of Mas- sachusetts, Amherst. In Section 3, we present the CEJP measure, and report the results of applying it to 100 corporations operating throughout the United States. The corporations are those listed in the latest edition of PERI’s “Toxic 100,” which uses the same data sources to rank the largest firms in the country on the basis of total human health hazards resulting from air toxics emissions at their facilities. In Section 4, we present “worst-in-class” and “best-in-class” rankings for firms in two industrial sectors that rank high in their air toxics emissions: oil refining; and plastics and synthetic materials. Community-based EJ activists generally have focused on impacts from specific facilities, such as the Solutia (former Monsanto) plant in Anniston, Alabama.1 Whether the exposure patterns at individual facilities can be generalized to overall corporate behavior is seldom evident. Academic EJ researchers generally have focused on the aggregate pollution loads imposed on people of color and low-income communities, rather than iden- tifying specific sources of these burdens.2 Whatever the overall extent of disproportionate impacts, there is no reason to assume that disparities are constant across firms. We show that the extent to which firms even in the same industrial sector impose disparate pollution burdens on different groups can and does vary substantially. In Section 5, we examine the relationship between CEJP and the measure of total hu- man health risk for the Toxic 100, with the dual aims of assessing whether a measure of 1On the Anniston case, see U.S. Senate Committee on Appropriations [2002] and Bryan [2003]. 2See, for example, Ash and Fetter [2004], Pastor et al. [2006], and Mohai and Saha [2007]. 2 environmental justice performance adds value to a more conventional measure of CEP, and of testing the hypothesis that performance in these two dimensions, while not identical, is positively correlated. In Section 6, we conclude by discussing potential uses of these data in research on the determinants and effects of CEJP and in efforts to improve corporate performance. 2 Data and Methods The underlying data for the CEJP measure come from three sources: the EPA’s Risk- Screening Environmental Indicators (RSEI); the 2000 U.S. Census of Population and Hous- ing; and the PERI corporation-facility identification dataset. This section describes these data sources and how we merge them in order to construct our measure of corporate envi- ronmental justice performance. 2.1 The RSEI project First, we describe two sets of data emerging from the EPA’s RSEI project: the aggregated version which is contained in the EPA’s RSEI public-release data; and the disaggregated RSEI Geographic Microdata (RSEI-GM) which currently are not available to the public at large. Our measure relies on the latter, but it is useful first to describe the public-release data. 2.1.1 The RSEI Project and Public-Release Data Estimates of exposure to airborne toxics emitted by industrial facilities across the United States are generated by the RSEI project of EPA. The RSEI project starts with information on annual releases of more than 600 chemicals from more than 20,000 facilities, reported in the Toxics Release Inventory (TRI). It then incorporates data on the relative toxicity of these chemicals, their fate and transport (taking into account chemical breakdown rates, stack heights, exit-gas velocities, prevailing wind currents, etc.) and the resulting exposures. For each air release (that is, each facility-chemical pair), RSEI estimates exposures in each square kilometer of a 101 km × 101 km grid centered on the facility. The EPA publicly releases facility-level measures of the resulting human health hazards, aggregated over the 10,201 one km-sq cells within the grid and across chemicals. These “RSEI scores” are used by federal and state environmental officials to prioritize enforcement actions. The TRI was created at the direction of the Congress under the Emergency Planning and Community Right-to-Know Act passed in 1986 after the Bhopal chemical plant disaster. The Act requires industrial facilities to submit annual data to EPA on deliberate and accidental releases of roughly 600 toxic chemicals into air, surface water, and the ground. TRI data are available on an annual basis starting in 1987. In 2005, more than 20,000 TRI-reporting facilities released a total of 1.5 billion pounds of toxic chemicals into the air, and additional toxics were released from offsite incinerators. The TRI is widely used in both CEP and EJ literature: CEP studies typically use TRI data on the total mass (pounds) of emissions, while EJ studies typically analyze the geographical distribution of TRI-reporting facilities in relation to the demographics of the communities in which they are located. The TRI data are the jewel in the crown of the environmental “right-to-know” movement 3 in the United States. But valuable as they are, the TRI data have important limitations. Some of these stem from the nature of the data: the releases are annual totals, estimated, self-reported, and limited to listed chemicals from qualifying facilities and processes. One of the most significant limitations is that the TRI simply reports pounds of chemical releases, often generating press stories that identify local “top polluters” on this basis. Such reporting does not account for variations in the toxicity of different chemicals, some of which, pound- for pound, are as much as ten million times more toxic than others. Nor does it take into account the fate and transport of these chemicals in the environment, or the number of people impacted. Finally, because the TRI reports facility-by-facility data, the cumulative impact on communities that are affected by multiple facilities is not evident.3 The RSEI project was launched by the EPA in the mid-1990s to address several of these limitations. The EPA Office of Pollution Prevention and Toxics (OPPT) processes the TRI data on the quantity of each chemical released by each facility to create the RSEI. To assess the human health risks posed by each release, the EPA combines this with information on: (1) toxicity, or how dangerous the chemical is in terms of chronic human health effects; (2) fate and transport, or how the chemical spreads from the point of release to the surrounding area; and (3) population exposure, or how many people live in the affected areas and are exposed to inhalation of different concentrations of the chemical. Each air release begins at a stack, leaking valve, open canister, or other source within the facility, or at the stack of an offsite incineration facility to which it ships wastes. The In- dustrial Source Complex-Long Term (ISCLT3) model, a Gaussian-plume fate-and-transport model, is used to map how the chemical spreads from the point of release in the surround- ing geography.4 EPA combines data on temperature and local wind patterns with facility- specific information on smokestack height and the exit velocity of released gases, together with chemical-specific information on molecular weight and rates of deposition and decay, to estimate the ambient concentrations of each release in each square kilometer within a 101 km by 101 km grid (10,201 sq km) around each facility. By multiplying the mass (pounds) of each chemical by a toxicity weight, EPA compares the toxicological significance of releases of different chemicals. The EPA’s toxicity-weighting system is based on peer-reviewed databases from several sources: the EPA’s Integrated Risk Information System (IRIS); the EPA’s Office of Pesticide Programs (OPP) Reference Dose Tracking Reports; the U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry (ATSDR); the California Environmental Protection Agency (CalEPA) Office of Environmental Health Hazard and Assessment (OEHHA); and the EPA’s Health Effects Assessment Tables (HEAST). For some chemicals listed in the 3The TRI data capture the largest point-source air pollution emissions in the United States, but they do not capture emissions from mobile sources, such as trucks, automobiles, ships, and aircraft. The TRI also excludes facilities that are not required to report by virtue of small size or belonging to non-listed industrial sectors. Potentially significant air polluters not covered for these reasons include gas stations, dry cleaners, and auto-body shops. 4Geographic buffers based on plume modeling provide a more accurate picture of exposure to industrial air releases than do simple circular or distance-weighted buffers [Chakraborty and Armstrong, 1997, Saha and Mohai, 2005]. 4 TRI, no consensus has been reached on the appropriate toxicity weight, and these chemicals are currently excluded from the RSEI public-release data. In recent years, the excluded chemicals have represented about one percent of the total mass of reported toxic air releases nationwide. Although all TRI chemicals are hazardous, their toxicities vary widely. For carcinogens, the EPA’s toxicity-weighting system uses inhalation-based dose-response estimates of the excess lifetime cancer risk per unit of concentration. The toxicity-weighted concentration is proportional to an individual’s excess risk of cancer from that concentration. For non- carcinogens, the toxicity-weighting system uses the “Reference Concentration,” which is the highest level of exposure concentration with no adverse health impact, and expresses toxicity-weighted exposures as multiples of this (for example, “six times the highest safe concentration”). Equivalence between the non-carcinogenic and carcinogenic scales has been set by the EPA Science Advisory Board at a Reference Concentration being equivalent to a carcinogenic risk of 250 excess cancer cases per million persons. At the extreme ends of the resulting toxicity scale for the chemicals on the TRI list, one pound of friable asbestos is equivalent, in terms of inhalation toxicity, to 27 million pounds of chlorodifluoromethane (HCFC-22). The RSEI project overlays the grid of toxicity-weighted air pollution concentrations upon a grid of population data drawn from block-level data from the U.S. Census. The calculation of aggregate human health risk is based on population exposure to given toxicity-weighted concentrations. In addition to the number of people in each one-square-kilometer grid cell, the RSEI’s population weights take into account the age and sex composition of the popu- lation, because exposure varies by the volume of air inhaled per unit of body weight.5 The RSEI score for a given release (facility-chemical) affecting a given grid cell is: RSEI Scoref cg = ∑ a ∑ s Populatonasg × IEFas × Toxicityc × Concentrationf cg (2.1) where Populatonasg is the population of sex s in age category a in cell g; IEFas is the inhalation factor for persons of sex s in age category a; Toxicityc is the toxicity weight for chemical c; and Concentrationf cg is the estimated concentration from the plume model at cell g for chemical c released by facility f. The release-cell score, measuring the impact of a given release on a given cell, represents the total human health risk for the population exposed in that location. In the case of carcinogens, this score is directly proportional to the number of excess statistical cancer cases. The EPA’s main objective in creating the RSEI was to assist federal and state agencies in setting priorities for environmental protection. To this end, the release-cell scores are 5The population-exposure values reflect the cubic meters of air inhaled by a person (roughly 20 cubic meters per 70 kg) per day. Inhalation exposure factors ranging from 0.165 to 0.341 are used to convert toxicity-weighted air concentrations into human exposures, according to the following formula: 0.341×(count of males, aged 0 to 17) + 0.209×(males, 18 to 44) + 0.194×(males, 45 to 64) + 0.174×(males, 65 and Up) + 0.310×(females, aged 0 to 17) + 0.186×(females, 18 to 44) + 0.165×(females, 45 to 64) + 0.153×(females, 65 and Up). 5 aggregated (across chemicals and cells) on a facility-by-facility basis: RSEI Scoref = ∑ c ∑ g RSEI Scoref cg (2.2) The facility-wise RSEI scores are made available to government agencies and the public on the RSEI public-release data CD-ROM, available for free from EPA. The public-release data include information on the contribution of each chemical to the facility’s RSEI score, but they do not include disaggregated information on the geographic cells impacted by the toxic releases. The RSEI methodology described above has been subjected to extensive internal and external reviews, including a peer review by external risk-assessment experts, three peer reviews by the EPA’s Science Advisory Board, peer reviews by the States, and submission for public comment.6 2.1.2 The RSEI Geographic Microdata (RSEI-GM) Because EPA developed the RSEI data for the purpose of prioritizing facilities (that is, sources) for enforcement and clean-up, the public-release data are not designed for examining differences among communities (that is, receptors) in terms of their exposure to industrial toxic releases. The CEJP measure requires use of the disaggregated RSEI-GM data, which provide 1 km2 cell-by-cell estimates of exposure to airborne toxics identified by source facility and chemical. The disaggregated data are not available to the public, owing to their daunting size and complexity. EPA has, however, made the geographic microdata available to the research community. At an earlier stage, EPA provided partially disaggregated RSEI data on total estimated health hazards from air toxics for each of the roughly two million impacted 1 km2 grid cells. These data were not fully disaggregated; instead they were summed over all releases, i.e., aggregated on a cell-by-cell basis across facilities (sources) and chemicals. The aggregate RSEI score for a cell g is RSEI Scoreg = ∑ f ∑ c RSEI Scoref cg (2.3) where f indexes facility and c indexes chemical. Although these earlier data provided no distinction among sources, the total human health risk was measured at fine geographic resolution. By merging this receptor-based measure of aggregate hazards with Census data, two published EJ studies [Bouwes et al., 2003, Ash and Fetter, 2004] have analyzed hazards in relation to race, ethnicity, and income using these data for the years 1997 and 1998, re- spectively. These studies found statistically significant evidence of disproportionate impacts, both by race and ethnicity (controlling for income) and by income (controlling for race and ethnicity). To develop corporation-specific measures of EJ performance, we must use the fully dis- aggregated geographic microdata, which identify impacts by source facility and receptor cell 6For details, see Office of Pollution Prevention and Toxics [2004]. 6 (RSEI scoref g). The RSEI-GM data provide this information. Unlike most other data used in the investigation of environmental inequalities, the RSEI-GM data offer: 1. National scope and coverage of a wide range of industries, chemicals, and facilities. The RSEI-GM data include almost all (99 percent by weight) of the air releases reported to the TRI. The TRI is the most comprehensive list of industrial toxic releases in the United States, in 2005 covering 494 chemicals and chemical groups released by 23,438 facilities in manufacturing, metal mining, electrical power generation, waste storage and processing, and chemical storage, as well as Federal facilities. The criteria for inclusion in TRI reporting include industrial sector and the quantity of toxic chemicals processed at the facility. 2. Fate, transport, and exposure modeling of all national releases at precise geographic resolution. The fate-and-transport model permits the unbiased measurement of expo- sure at receptor sites resulting from point-source air releases, with a high degree of geographic specificity.7 The focus on exposure at the receptor site outflanks the “How near is near?” debate in the environmental justice literature as to what distance best fits the notion of “closeness” to a point source (for discussion, see Boyce [2007]). 3. Identification of the source facility for each pollutant release. The data on ambient con- centrations of toxics at receptor sites are disaggregated by source facility and chemical. Unlike the Global Emissions Monitoring System (GEMS) and other pollution-exposure data based on aggregate levels of pollutants at the receptor site, the RSEI-GM makes it possible to track each exposure to its source. The simultaneous identification of source and exposure is perhaps the most important and distinctive strength of the RSEI-GM. 4. Nearly twenty years of annual data spanning the decennial Censuses of 1990 and 2000. The RSEI-GM time series makes it possible to conduct innovative temporal analysis. Much of the debate over causality and policy in the environmental justice literature has revolved around matters of timing: which came first, the people or the pollution? Longitudinal studies can help us understand the dynamic processes of demographic and environmental change. 5. Toxicity weighting, expressing the human health risk of emissions per quantity re- leased. The EPA’s toxicity-weighting system permits comparison of toxic releases from disparate industrial processes. 6. Construction by well-documented methods that have undergone extensive peer review. The EPA’s RSEI data are among the most rigorously reviewed environmental datasets in the nation, and they carry the imprimatur of the Federal regulatory authorities. In summary, the RSEI-GM database offers a remarkable tool for the analysis of envi- ronmental justice issues in the United States. Its fine geographic resolution exceeds that 7The 1 square-km resolution of the data does not exhaust the power of the plume model; rather, the trade-off between geographic specificity and database size determines the scale. 7 of other national exposure databases, such as the National Air Toxics Assessment (NATA). By measuring exposure, it circumvents the how-near-is-near problem that has plagued EJ studies based simply on proximity to point sources. Disaggregation by source and chemical permits the identification of problematic and improving industrial sectors and processes. The linkage of release and exposure—that is, source and receptor—provided by the RSEI-GM is unparalleled by any other national dataset. The longitudinal character of the data enables time-series and panel analyses that can shed light on trends as well as levels of exposure, and on the dynamic interplay between demographic and environmental change. The RSEI-GM data thus extend the range and complexity of EJ research questions that can be feasibly addressed. In this paper, we show how the data can be used to measure corporate environmental justice performance. 2.2 Census of Population & Housing: The Spatial Join The 2000 U.S. Census of Population and Housing provides the social, economic, and demo- graphic data for construction of our measure. Census blocks, defined by roads and other geographic features, are the smallest geographic unit of data published by the Census. The data provided at this level include counts of the race, sex, and age of residents. With the help of local committees, the Census Bureau defines Census block groups, which typically contain roughly 30 blocks that correspond to neighborhoods, a method that ensures a degree of socioeconomic homogeneity. Block groups contain 600 to 3,000 people.8 The block group is the smallest geographic unit for which the Census Bureau publicly releases socioeconomic data, including counts of the number of people in poverty. The Census and RSEI-GM data are well-matched in terms of geographic precision, but they are not in the same geographic format. The RSEI-GM model divides the United States, including Puerto Rico, into one-square-kilometer cells, of which seven million are within the 101 km × 101 km catchment of at least one industrial facility and almost three million have positive toxics exposure. Census blocks and block groups have irregular boundaries, and they can be larger or smaller than one square kilometer. Working with the EPA, its contractor, and a consortium of academic researchers, we constructed a crosswalk by which Census geography is spatially joined with the 1 km2 grid-cell data.9 For every cell, the crosswalk calculates the fraction of the total area of each block that falls into it. In this way we can count, by age category and sex, the number of poor people, blacks, Latinos, Asian-Americans, Native Americans, and non-Hispanic whites in each of the 1 km2 cells: Populationrasg = ∑ b αgb × Populationrasb (2.4) where Populationrasg is the estimated population of race or ethnicity r, age a, and sex s in cell g; Populationrasb is the population of race r, age a, and sex s in Census block b, and αgb is the share of Census block b that lies in grid cell g. The year 2000 Populationrasb of Census 8Block groups fully partition Census tracts, the next level of aggregation, which on average contain 4,000 residents. 9In addition to the authors, other members of the RSEI-GM research consortium are based at the Uni- versity of Michigan, the University of Southern California, and the University of California, Berkeley. 8 block b is extracted from the Summary File 1 data from the Census. The crosswalk term, αgb, is used by the EPA to incorporate population densities in the RSEI project. Using this method, we obtained age-sex-race/ethnicity population counts for each grid cell g. Our race/ethnicity population counts, segmented by age-group and sex, were derived at the 1 km2 grid-cell level from the block-grid spatial merge, using exactly the same method that the EPA’s RSEI model uses in its total population counts. We then compute: RSEI Scorerf cg = ∑ a ∑ s Populatonrasg × IEFas × Toxicityc × Concentrationf cg (2.5) where Populationrasg is the race or ethnicity r, age a, and sex s population of cell g. Summing over the 10,201 cells around each facility, the score expresses the aggregate health risk to minority group r from exposure to a given release: RSEI Scorerf c = ∑ g RSEI Scorerf cg (2.6) For the impact from all of the releases from a single facility, RSEI Scorerf = ∑ c ∑ g RSEI Scorerf cg (2.7) The Census does not report income data at the block level, but only at the block-group level and higher aggregations (in Census Summary File 3). For this reason, the poverty- specific population counts are derived from a spatial merge of block-group data with the grid cells.10 We tested whether applying this broader block-group aggregation to the racial/ethnic population data caused results to vary much from those obtained from the spatial merge at the finer block level, and found that there is little difference in the results. 2.3 Corporation-facility matching To develop corporate performance measures, one more step is required: matching individual facilities to their corporate parents. PERI’s Corporate Toxics Information Project (CTIP) has developed a dataset for this purpose. This parent-facility matching requires continu- ous updating to track mergers and acquisitions, transfers of facilities to new owners, and the entry of new facilities into the TRI and RSEI databases. Extracting information on company ownership of facilities from the TRI reports, Dun & Bradstreet’s Million Dollar Database, Mergent Online, http://www.hoovers.com, company websites, printed reports, and telephone calls, the CTIP matches facilities to their parent companies. By aggregating the RSEI scores of the facilities owned by individual parent companies, the CTIP produces “The Toxic 100,” a ranking of the largest corporations operating in the 10The Census poverty data are reported by age-group but not by sex, and the age-groups are less disag- gregated than those at the block level used by the RSEI model: where RSEI distinguishes 18 to 44 and 45 to 64, the Census block-group data on the poor report 18 to 64 as a single category. Hence we averaged the age-specific exposure factors for males and females; for example, (0.341 + 0.310) / 2 = 0.326 for persons aged 0 to 17. For the combined age group, we computed a span-weighted average: (27/47×(0.209 + 0.186)/2 + 20/47×(0.194+0.165))/2) = 0.190 for persons aged 18 to 64. 9 http://www.hoovers.com United States on the basis of the total human health risk from air toxics emissions from their facilities, as measured by the RSEI data. The most recent edition of the Toxic 100 (available at http://www.peri.umass.edu/toxic100/) identifies the top polluters among the companies that appeared in the year 2007 on the Fortune 500, Fortune Global 500, and S&P 500 lists of the country’s largest corporations, and on the Forbes Global 2000 list of the largest 500 U.S.-based and 500 foreign-based corporations. The most recent available RSEI data from EPA refer to the year 2005. The Toxic 100 therefore reports 2005 air pollution from industrial facilities in the United States, based on the latest available (2007) data on ownership structure. 3 A Measure of Corporate Environmental Justice Performance In this section we present our measure of corporate environmental justice performance (CEJP) for the 100 large firms that appear in the latest edition of PERI’s Toxic 100. The measure indicates the extent to which the human health impacts from releases of toxic air pollutants at industrial facilities owned by the corporation are borne by specific subgroups of the U.S. population. Two CEJP indicators are reported here: the first measures impacts on racial and ethnic minorities, and the second measures impacts on people with incomes below the national poverty line. 3.1 Measuring group shares of human health risk To measure human health risk for a given corporation, we aggregate the race/ethnicity- specific and poverty-specific scores for the facilities it owns: RSEI ScorerF = ∑ f∈F RSEI Scorerf (3.1) where r indexes racial/ethnic or poverty categories, and f indexes facilities owned by firm F . Our CEJP measure is the percentage share of these groups in the total human health risks generated by air toxics releases from the firm’s facilities. To obtain this, we divide this score by the total RSEI score for the firm, as reported in the Toxic 100: CEJPrF ≡ RSEI ScorerF /RSEI ScoreF (3.2) CEJP is a purely distributional measure, in that it does not distinguish between a dis- proportionate share of a small total human health impact and a disproportionate share of a large total impact. We examine the relationship between the CEJP measure and total pollution impacts in Section 5. To assess whether the share of impacts accruing to specific population groups is “dis- proportionate,” we must choose an appropriate counterfactual to define a “proportionate” impact. The most straightforward benchmark for this purpose is the share of the group in the national population. In the 2000 Census, racial and ethnic minorities11 constituted 31.8 11We classify as minority all persons reporting either Hispanic for ethnicity or a response other than white 10 http://www.peri.umass.edu/toxic100/ percent of the U.S. population, and people living below the official poverty line were 12.9 percent. Alternative benchmarks for assessing disproportionality include the share of the group in the population of the specific regions—for example, states or metropolitan areas—in which the firm’s facilities are located, or their share in the firm’s labor force. A region- specific benchmark would be consistent with the view that the facility siting decisions of firms are often “within-region” choices, constrained by the desire to locate within a certain part of the country for ease of access to input or output markets [Pastor et al., 2001]. An employment-based benchmark would provide a rough gauge of the balance between “costs” and “benefits” to specific groups, sometimes invoked in discussions of the supposed “jobs-versus-environment” tradeoff. Both alternatives would apply different benchmarks to different firms, complicating the task of inter-firm comparisons. Our CEJP measure can be compared to these and other benchmarks. In the tables presented here, we report national population shares as the simplest, and for our purposes most robust, standard for comparison. It is also of interest to see how a specific firm compares with other firms. For this purpose, our tables also show group shares of human health hazards aggregated over all firms and facilities in the RSEI-GM database and aggregated over the universe of the large firms represented in the Toxic 100. For all firms, the share of minorities and the poor in 2005 were 34.8 percent and 15.3 percent, respectively (above their respective national population shares of 31.8 percent and 12.9 percent). The shares for the Toxic 100 firms were slightly lower than for all firms, but still above the shares of these groups in the national population. Inter-firm comparisons can also be made within specific industrial sectors. To illustrate, we report “best-in-class” and “worst-in-class” CEJP measures for firms in the plastics and oil refining sectors below. 3.2 Results Table 1 reports the CEJP minority measure for the top ten firms ranked on this basis from the firms in the Toxic 100. In all ten cases, more than half of the human health impacts resulting from the firm’s air toxics releases are borne by minority groups. Two of these firms— Exxon Mobil and Arcelor Mittal—also rank in the top ten of The Toxic 100 itself; in other words, they rank very high in total pollution burden as well as the share of the burden borne by minorities. In both cases, the main subgroup contributing to the large impact on minorities is blacks. In the case of Exxon Mobil, the black share of total human health impacts is 55.5 percent—the highest share of any firm in the Toxic 100. [INSERT TABLE 1 HERE] Looking at the bottom three lines in Table 1, we can compare group shares of health hazards for all firms in the Toxic 100 and the entire RSEI-GM database to their shares in for race. The breakout columns for blacks, Asians and Pacific Islanders, Native Americans refer to persons reporting exactly one race and non-Hispanic ethnicity. The breakout column for Hispanics may refer to people of any race. Because of the multiracial and other categories, the breakout columns do not sum to the total for minorities. 11 the U.S. population. Again, the disproportionate burden borne by blacks is evident: their share of the total pollution burden (18.1 percent) is more than 50 percent greater than their share of the national population (11.8 percent). In the case of Hispanics, Asian-Pacific islanders, and American Indians, their shares of the total pollution burden are somewhat below their shares of the national population. This is consistent with the finding of Ash and Fetter (2004) that within metropolitan statistical areas (MSAs), Hispanics tend to live in significantly more polluted neighborhoods than non-Hispanic whites, but that this effect is moderated in national-level data by the fact that they tend to live in MSAs that have less industrial toxic air pollution than the national average. In the case of blacks, by contrast, Ash and Fetter (2004) found that they not only live “on the wrong side of the environmental tracks” at the MSA level, but also are concentrated in MSAs with above-average industrial air toxics pollution. Table 2 reports the CEJP poverty measure, again for the top ten firms ranked on this basis from the Toxic 100. Not surprisingly, there is considerable overlap with Table 1: seven firms place in both lists. In the cases of the top two firms—National Oilwell Varco and Hess—the share of human health impacts borne by people living below the poverty line is more than double their share in the national population. Three firms that rank in the top ten by the CEJP poverty measure—Exxon Mobil, Arcelor Mittal, and Archer Daniels Midland—also rank in the top ten of the Toxic 100 itself. [INSERT TABLE 2 HERE] The Appendix Table presents these measures for all of the firms in the Toxic 100 universe, together with their Toxic 100 rank, number of TRI-reporting facilities, number of releases (that is, chemical-facility combinations), and total human health hazard (RSEI) score. The firms with the highest shares for Hispanics, Asian/Pacific Islanders, and Native Americans are, respectively, Freeport-McMoran Copper & Gold, Avery Dennison, and Northeast Utili- ties; in each case, the share of these subgroups in the firm’s human health impacts is more than three times their share in the national population. 3.3 Environmental justice performance at the facility level Two factors enter into a firm’s CEJP score. The first is the share of minority or poverty groups in the human health impacts of all its facilities, averaged over the number of facilities. The second is the extent to which its “dirtiest” facilities—that is, the facilities with the highest total RSEI scores—are located in places where these shares are higher (or lower) than average. To illustrate this point, we examine facility-level measures of environmental justice per- formance for Exxon Mobil, the corporation with the highest share of total impacts borne by blacks. Table 3 presents data for the firm’s top five facilities, ranked by RSEI scores, and for a composite of the fifty other Exxon Mobil facilities that contribute to the firm’s score. It is evident that the top two facilities, both of which are in Baton Rouge, Louisiana, drive the result for blacks. It is also noteworthy that the next two facilities, refineries in Baytown, Texas, and Torrance, California, both have exceptionally large shares of Hispanics and, in the case of Torrance, Asian/Pacific-islanders. 12 [INSERT TABLE 3 HERE] 4 Best and worst “in class” rankings This section investigates whether inter-firm differences in environmental justice performance persist within specific industrial sectors, taking as examples two particularly “dirty” sectors, the manufacture of plastics (and other synthetic materials) and oil refining. Because firms often are diversified—owning facilities in a number of different industrial sectors—we restrict the comparison to facilities in the sectors of interest. The TRI and RSEI data include SIC (Standard Industrial Classification) codes for each reporting facility; we use these to select the relevant set of facilities for each firm.12 Tables 4 and 5 report the CEJP scores for firms in the oil and plastics/synthetics sectors, respectively. To conserve space, we report scores only for firms whose total human health hazard from air emissions from facilities in the relevant sector surpass a threshold level.13 The firms are ranked from “best-in-class” to “worst-in-class” on the basis of the share of human health impacts borne by minority groups.14 In the case of the oil industry, Tesoro, Marathon Oil, and Sunoco achieve best-in-class rankings, with minorities accounting for less than 35 percent of the impacts, although Tesoro is the only ranked firm whose minority share of health impacts is below the minority share in the U.S. population at large (31.8 percent). The worst-in-class rankings go to Pasadena Refining, ExxonMobil, and Hess: minorities account for more than 67 percent of the impacts from their oil-refining facilities. [INSERT TABLE 4 HERE] In the case of the plastics and synthetic materials sector, Neville Chemical Co., Eastman Chemical, and High Voltage Engineering Corporation achieve best-in-class rankings, with minorities accounting for less than 12 percent of the impacts. The worst-in-class rankings in this sector go to BP, ExxonMobil, and Resinall Corporation, with minorities accounting for more than 60 percent of the impacts. [INSERT TABLE 5 HERE] 5 Total Human Health Impact and CEJP The relationship between corporate environmental performance (CEP), here measured in terms of total human health impact from air toxics emissions at facilities owned by the firm, and corporate environmental justice performance (CEJP) is of interest for three reasons. First, if the correlation between these two dimensions of performance were extremely high—that is, the biggest polluters also had the biggest shares of minorities and the poor in 12Oil-refining facilities correspond to three-digit SIC code 291; plastics and synthetic materials manufac- turing facilities correspond to four-digit SIC codes 2820–2824. Some facilities engage in production activities in multiple industrial sectors, for which they can report up to six SIC codes. We select all facilities that report production in the relevant codes. 13As a cutoff, we use a combined RSEI score of 5,000 for the relevant facilities. 14Rankings based on the share borne by people with incomes below the poverty line (reported in the last column of the tables) yield similar results. 13 the resulting health impacts—then the calculation of a separate CEJP measure might not be worth the effort: CEP would tell us all we need to know. Second, there are plausible a priori reasons to expect that the correlation between the two will be positive, albeit imperfect. The reason is that where inequalities of power and wealth between polluters and the “pollutees” who bear environmental costs are larger, one outcome is likely to be a larger overall magnitude of pollution. Wealth inequalities can yield this result under the standard assumptions of benefit-cost analysis, in which the value of an adverse health impact is measured in terms of a person’s willingness to pay to avoid it. To put matters bluntly, in this calculus the health and lives of the poor are worth less than those of the rich. Where the society’s decisions about environmental policies are shaped by political influ- ence, in addition to benefit-cost calculations, power inequalities can further contribute to this outcome. For example, Boyce [2002] has suggested that environmental policies are governed by a “power-weighted social decision rule,” in which what matters is not only the monetary values of costs and benefits but also the power of the parties to whom these accrue. The relationship between CEP and CEJP can provide one test of this hypothesis. A final reason why this relationship is worth examining is that if, instead of a positive correlation, the two were inversely related—such that disproportional impacts were concen- trated among relatively minor polluters—then this might mitigate, to some degree, findings of environmental injustice. To examine this relationship, we looked at plotted total RSEI scores against our CEJP measures for the firms appearing in The Toxic 100. The results are shown in Figures 1 and 2 for the CEJP minority and poverty measures, respectively. In both cases, the results show a weak positive relationship, consistent with the expectation that the overall magnitude of pollution will be correlated with the distribution of the resulting burdens, but not so strongly correlated as to obviate the need for measures of the latter. [INSERT FIGURES 1 & 2 HERE] Fitting linear regression lines to the 100 observations in each figure, we find that as the minority share rises from 0 to 80 percent, the extent of observed variation, the predicted human health hazard rises by 27 percent. As the poverty share rises from 0 to 30 percent, the small range of variation in poverty shares, the predicted human health hazard rises by 150 percent. 6 Conclusions The measure of corporate environmental justice performance (CEJP) presented in this paper provides meaningful new information on an important dimension of corporate behavior. For ethical reasons, it is of interest to know not only how much pollution is released by a firm’s industrial facilities, but also how the resulting human health impacts are distributed across racial, ethnic, and income groups. The CEJP measure provides this information. Apart from ethical concerns, there may be good legal and financial reasons for corpora- tions and investors to pay attention to this dimension of firm performance. Environmental 14 justice—defined in terms of both race/ethnicity and income class—became an explicit objec- tive in federal government policy making in 1994, when President Clinton signed Executive Order 12898 directing each government agency to take steps to identify and rectify “dis- proportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” In the case of minorities, moreover, systematically disproportionate burdens could prove to be grounds for legal challenges under the U.S. Civil Rights Act. Public and private responses could translate environmental injustice into liabilities that affect the firm’s bottom line. Regular measurement of CEJP can provide stakeholders—investors, managers, regula- tors, consumers, and residents of affected communities—with a report card for assessing levels and changes in performance. Furthermore, because the fate-and-dispersion model can be used to estimate concentrations from hypothetical releases, it can be used to predict the environmental and EJ impacts of planned expansions or decreases in air toxics emissions. The CEJP measure is scalable, and as we demonstrated above, it can be used to compare both firms and facilities within firms. It can be readily extended to specific industrial sectors, specific chemicals, or other classifications of industrial point-source pollution. We believe that the joint measurement of total impact (CEP) and disparate impacts (CEJP) provides the most robust picture of corporate environmental performance. Al- though correlated, neither measure adequately conveys information about the other. Both dimensions are relevant, and both should—and can—be incorporated into the assessment of corporate behavior. References Michael Ash and T. Robert Fetter. Who Lives on the Wrong Side of the Environmental Tracks? Social Science Quarterly, 85(2):441–462, 2004. Nicolaas W. Bouwes, Steven Hassur, and Marc Shapiro. Information for Empowerment: The EPA’s Risk-Screening Environmental Indicators Project. In James K. Boyce and Barry G. Shelley, editors, Natural Assets: Democratizing Environmental Ownership, pages 135–150. Washington, DC: Island Press, 2003. James K. Boyce. The Political Economy of the Environment. Edward Elgar, 2002. James K. Boyce. Inequality and Environmental Protection. In Jean-Marie Baland, Pranab Bardhan, and Samuel Bowles, editors, Inequality, Collective Action, and Environmental Sustainability, pages 314–348. Princeton: Princeton University Press, 2007. Dave Bryan. Minority Groups Mobilize on Pollution: Alabama Towns Battle for PCB Cleanup Reflects Fight Against ‘Environmental Racism’. Associated Press, 6 April 2003. http://www.ejrc.cau.edu/washpostejarticle.html. J. Chakraborty and M. P. Armstrong. Exploring the use of buffer analysis for the identifica- tion of impacted areas in environmental equity assessment. Cartography and Geographic Information Systems, 24(3):145–157, 1997. 15 http://www.ejrc.cau.edu/washpostejarticle.html Paul Mohai and Robin Saha. Racial Inequality in the Distribution of Hazardous Waste: A National-Level Reassessment. Social Problems, 54(3):343–370, 2007. Office of Pollution Prevention and Toxics. Risk-Screening Environmental Indicators. U.S. Environmental Protection Agency, Washington, DC, 2004. Accessed February 1, 2008. URL: http://www.epa.gov/oppt/rsei. Manuel Pastor, James Sadd, and John Hipp. Which Came First? Toxic Facilities, Minority Move-in, and Environmental Justice. Journal of Urban Affairs, 23(1), 2001. Manuel Pastor, James Sadd, and Rachel Morello-Frosch. The Air is Always Cleaner on the Other Side: Race, Space, and Air Toxics Exposures in California. Journal of Urban Affairs, 27(2), 2006. Robin Saha and Paul Mohai. Historical Context and Hazardous Waste Facility Siting: Un- derstanding Temporal Patterns in Michigan. Social Problems, 2005. U.S. Senate Committee on Appropriations. PCB Contamination in Anniston, Al- abama. 107th Congress, 19 April 2002. Available at http://www.ewg.org/files/ AnnistonSenateHearingTrans.pdf. 16 http://www.epa.gov/oppt/rsei http://www.ewg.org/files/AnnistonSenateHearingTrans.pdf http://www.ewg.org/files/AnnistonSenateHearingTrans.pdf Figure 1. Total Human Health Impact and CEJP for Minorities: Toxic 100 ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ●● ● ●●●● ●●● ● ●● ● ● ●●● ●●● ● ● ●●●● ● ● ●● ●●● ●●● ●● ●● ●● ●● ●●●● ●●● ●●● ● ●● ● ●● ●● ●● ●●● ● ●● ●● ● ● ● ●●●● ●● ● 0 20 40 60 80 0 5 0 0 0 0 1 0 0 0 0 0 1 5 0 0 0 0 2 0 0 0 0 0 2 5 0 0 0 0 Minority Share S co re E.I. du Pont de Nemours Archer Daniels Midland (ADM) Dow Chemical Bayer Group Eastman Kodak General Electric Arcelor Mittal US Steel ExxonMobil AK Steel Holding Eastman Chemical Source: Toxic 100 Corporate RSEI Score and Appendix Table 1. 17 Figure 2. Total Human Health Impact and CEJP for Poverty: Toxic 100 ● ● ● ● ● ● ● ● ● ● ● ● ● ●● ● ● ● ●●● ●●● ●●● ● ● ●● ●● ●●● ●● ●●● ●● ●●● ● ●●●● ●●●●●● ●● ●● ●●●●● ●●● ● ● ●●● ●● ● ●● ●● ●● ●●● ●● ●●● ●●● ●●●● ●●● 0 20 40 60 80 0 5 0 0 0 0 1 0 0 0 0 0 1 5 0 0 0 0 2 0 0 0 0 0 2 5 0 0 0 0 Poor Share S co re E.I. du Pont de Nemours Archer Daniels Midland (ADM) Dow Chemical Bayer Group Eastman Kodak General Electric Arcelor Mittal US Steel ExxonMobil AK Steel Holding Eastman Chemical Source: Toxic 100 Corporate RSEI Score and Appendix Table 1. 18 Table 1. Corporate Environmental Justice Performance: Minorities Minority Black Hispanic Asian/Pacific Nat. Am. Share Share Share Share Share National Oilwell Varco 78.0 22.3 53.0 2.0 0.7 ExxonMobil 69.1 55.5 10.4 2.2 0.3 General Dynamics 69.0 11.1 49.1 6.7 1.0 Hess 66.5 15.6 47.6 4.9 0.3 Freeport-McMoran Copper & Gold 62.1 2.9 57.1 0.5 1.6 Arcelor Mittal 61.6 46.6 12.5 1.3 0.3 Valero Energy 59.9 38.7 18.3 1.8 0.5 Akzo Nobel 58.6 44.4 10.4 2.4 0.3 Public Service Enterprise Group (PSEG) 57.0 18.2 26.8 10.1 0.4 Northrop Grumman 56.6 49.8 3.3 1.8 0.4 Toxic 100 Firms 34.2 19.8 10.5 2.1 0.5 All Firms 34.8 18.1 12.6 2.2 0.6 US Population 31.8 11.8 13.7 3.7 0.7 19 Table 2. Corporate Environmental Justice Performance: People in Poverty Poor Share National Oilwell Varco 26.5 Hess 26.4 ExxonMobil 25.4 Akzo Nobel 25.2 Arcelor Mittal 24.9 Northrop Grumman 22.6 Archer Daniels Midland (ADM) 22.5 Rowan Cos. 21.6 Nucor 21.2 General Dynamics 20.9 Toxic 100 Firms 15.2 All Firms 15.3 US Population 12.9 20 Table 3. Minority and Poverty Shares of Airborne Human Health Risk: ExxonMobil Facilities Minority Black Hispanic Asian/Pacific Nat. Am. Poor Score Share Share Share Share Share Share Baton Rouge Refinery (LA) 62269 78.0 75.3 1.1 1.0 0.1 31.1 Baton Rouge Chemical (LA) 24748 73.1 70.0 1.2 1.1 0.1 29.1 Baytown Refinery (TX) 18405 54.6 15.0 35.8 2.6 0.5 15.3 Torrance Refinery (CA) 6710 69.9 10.8 40.9 15.5 0.7 15.1 Joliet Refinery (IL) 6277 33.7 16.5 13.0 2.9 0.2 7.8 50 Additional Facilities 10347 50.8 23.2 23.4 2.6 0.8 17.3 55 Total Facilities 128758 69.1 55.5 10.4 2.2 0.3 25.4 21 T ab le 4. M in or it y an d P ov er ty S h ar es of A ir b or n e H u m an H ea lt h R is k: O il R efi n in g M in or it y B la ck H is p an ic A si an /P ac ifi c N at . A m . P oo r F ac il it ie s R el ea se s S co re S h ar e S h ar e S h ar e S h ar e S h ar e S h ar e E xx on M ob il 8 56 4 11 53 70 65 .5 51 .9 10 .2 2. 4 0. 3 24 .6 C on oc oP h il li p s 17 79 0 90 47 8 34 .8 19 .6 10 .6 2. 3 0. 9 15 .4 V al er o E n er gy 17 10 31 83 41 6 59 .8 38 .6 18 .3 1. 8 0. 5 19 .7 B P 6 38 6 48 84 1 56 .2 16 .4 32 .6 5. 8 0. 6 16 .3 C it go P et ro le u m C or p . 7 31 4 29 36 4 47 .8 28 .5 15 .7 2. 3 0. 4 19 .4 P as ad en a R efi n in g S ys te m In c. 1 36 25 29 1 73 .6 12 .6 57 .7 2. 4 0. 6 25 .1 S u n oc o 5 17 6 24 89 6 34 .0 22 .9 5. 8 3. 8 0. 3 16 .3 T es or o 6 31 5 24 64 0 24 .5 2. 6 11 .6 5. 9 1. 8 10 .0 S u n co r E n er gy 1 35 20 37 8 45 .3 6. 9 33 .6 2. 5 1. 3 12 .9 M ot iv a E nt er p ri se s L .L .C . 5 17 3 14 70 7 42 .2 35 .6 4. 1 1. 4 0. 3 16 .8 H es s 2 11 0 12 56 4 67 .4 14 .6 49 .8 4. 9 0. 3 26 .9 S in cl ai r O il C or p . 3 17 1 12 45 9 35 .3 18 .2 6. 8 1. 1 5. 3 20 .3 R oy al D u tc h S h el l 6 29 1 11 43 0 43 .5 8. 8 25 .5 6. 0 1. 0 12 .2 M ar at h on O il 7 36 4 11 27 7 33 .8 16 .3 13 .6 1. 9 0. 6 14 .3 C h ev ro n 7 43 2 55 84 66 .2 17 .4 31 .9 13 .3 0. 6 18 .9 A ll O il R efi n in g 16 3 68 36 55 52 98 51 .3 27 .9 18 .8 2. 9 0. 7 19 .0 A ll F ir m s 10 26 36 16 47 0 14 57 69 82 34 .8 18 .1 12 .6 2. 2 0. 6 15 .3 U S P op u la ti on − − − 31 .8 11 .8 13 .7 3. 7 0. 7 12 .9 22 T ab le 5. M in or it y an d P ov er ty S h ar es of A ir b or n e H u m an H ea lt h R is k: P la st ic s an d S yn th et ic M at er ia ls M in or it y B la ck H is p an ic A si an /P ac ifi c N at . A m . P oo r F ac il it ie s R el ea se s S co re S h ar e S h ar e S h ar e S h ar e S h ar e S h ar e E .I . d u P on t d e N em ou rs 25 73 2 22 22 29 37 .1 31 .6 2. 8 1. 0 0. 3 17 .9 E as tm an C h em ic al 4 25 2 98 29 2 9. 9 6. 4 1. 7 0. 6 0. 2 15 .1 A p ol lo M gt . (H ex io n S p ec ia lt y C h em .) 23 37 0 62 76 6 40 .3 14 .8 22 .1 2. 1 0. 5 13 .2 D ow C h em ic al 23 11 81 62 80 6 43 .4 17 .1 23 .9 1. 3 0. 4 15 .0 N ev il le C h em ic al C o. 1 22 28 49 8 7. 6 4. 9 0. 6 1. 2 0. 1 6. 6 E xx on M ob il 9 28 9 26 77 0 71 .7 66 .3 3. 4 1. 2 0. 2 28 .3 B A S F 13 14 0 22 57 9 31 .3 22 .8 4. 7 1. 4 0. 4 13 .0 In vi st a S . A . R . L . 7 10 6 17 58 0 26 .5 20 .1 3. 8 0. 6 0. 5 13 .7 B P 2 20 3 14 86 4 77 15 .0 44 .3 15 .4 0. 8 20 .6 Z eo n C h em ic al s L P 2 23 14 75 9 17 11 .5 2. 1 1. 6 0. 2 8. 7 R es in al l C or p . 2 21 14 15 0 62 .5 60 .2 1. 2 0. 3 0. 4 32 .3 G en er al E le ct ri c 8 22 5 12 54 1 10 5. 6 2. 0 1. 0 0. 2 11 .5 S te p an C o. 1 25 12 34 5 35 .1 18 .2 12 .8 2. 8 0. 2 8. 2 G eo rg ia G u lf C or p . 3 13 5 11 13 8 45 .7 41 .7 1. 8 1. 3 0. 3 22 .5 C yt ec In d u st ri es In c. 7 10 8 10 95 7 12 .3 6. 0 3. 2 1. 1 0. 5 14 .1 L an xe ss 3 43 10 54 9 17 .4 11 .7 2. 8 1. 5 0. 2 9. 9 L u b ri zo l C or p . 8 14 7 10 21 1 21 .1 14 .7 2. 7 1. 7 0. 3 12 .7 R oy al D u tc h S h el l 1 63 88 24 48 .2 10 .3 34 .2 2. 7 0. 5 13 .0 U . S . P ol ym er s A cc u re z L L C 1 10 83 97 24 .8 17 .6 3. 0 1. 6 0. 4 18 .3 R oh m an d H aa s 14 32 3 79 55 25 .1 17 .1 2. 7 3. 6 0. 3 21 .3 H er cu le s In c. 5 32 73 66 40 .2 21 .5 15 .3 1. 7 0. 5 20 .8 M it su b is h i C h em ic al 2 20 69 06 20 .8 12 .5 4. 3 2. 6 0. 2 10 .6 H ig h V ol ta ge E n gi n ee ri n g C or p . 1 4 65 55 11 .2 3. 0 5. 5 1. 9 0. 2 6. 2 W it co C or p . 2 62 65 53 38 .8 34 .5 2. 3 1. 1 0. 2 16 .9 W es tl ak e O le fi n s C or p . 4 42 63 52 38 .3 34 .1 2. 0 1. 2 0. 2 16 .5 S ol u ti a In c. 5 72 63 36 29 20 .5 5. 6 0. 9 0. 9 15 .2 G oo d ye ar 2 30 61 85 58 .6 20 .7 33 .7 3. 3 0. 4 18 .5 M ic h el in G ro u p 1 17 54 36 35 .5 31 .5 1. 5 0. 7 0. 2 17 .0 In n ov en e U S A L L C 3 69 54 04 24 .1 19 .1 1. 9 0. 6 0. 2 16 .7 A ll P la st ic s 54 3 88 98 84 74 04 34 .1 22 .6 8. 3 1. 6 0. 3 16 .0 A ll F ir m s 10 26 36 16 47 0 14 57 69 82 34 .8 18 .1 12 .6 2. 2 0. 6 15 .3 U S P op u la ti on − − − 31 .8 11 .8 13 .7 3. 7 0. 7 12 .9 23 A p p e n d ix T a b le 1 . M in o ri ty a n d P o v e rt y S h a re s o f A ir b o rn e H u m a n H e a lt h R is k : T o x ic 1 0 0 C o rp o ra ti o n s T o x ic 1 0 0 R S E I M in o ri ty B la ck H is p a n ic A si a n / P a c ifi c N a t. A m . P o o r R a n k F a c il it ie s R e le a se s S c o re S h a re S h a re S h a re S h a re S h a re S h a re E .I . d u P o n t d e N e m o u rs 1 5 8 1 2 7 7 2 8 5 6 6 1 3 6 .0 2 9 .9 3 .4 1 .0 0 .4 1 7 .3 A rc h e r D a n ie ls M id la n d (A D M ) 2 3 4 2 1 1 2 1 3 1 5 9 3 2 .0 2 5 .9 2 .7 1 .1 0 .2 2 2 .5 D o w C h e m ic a l 3 4 1 1 4 1 5 1 8 9 6 7 3 4 2 .7 1 5 .0 2 3 .6 2 .8 0 .4 1 3 .0 B a y e r G ro u p 4 1 6 2 8 9 1 7 2 7 7 3 2 4 .3 3 .2 1 8 .5 1 .4 0 .4 6 .8 E a st m a n K o d a k 5 6 1 4 2 1 6 2 4 3 0 2 6 .2 1 4 .2 8 .2 2 .0 0 .3 1 3 .4 G e n e ra l E le c tr ic 6 1 3 0 8 2 8 1 4 9 0 6 1 3 2 .4 1 1 .7 1 6 .1 2 .7 0 .5 1 3 .4 A rc e lo r M it ta l 7 2 4 3 0 4 1 3 4 5 7 3 6 1 .6 4 6 .6 1 2 .5 1 .3 0 .3 2 4 .9 U S S te e l 8 1 2 2 8 1 1 2 9 1 2 3 3 6 .8 2 9 .3 4 .6 0 .9 0 .4 1 7 .8 E x x o n M o b il 9 5 5 1 4 5 2 1 2 8 7 5 8 6 9 .1 5 5 .5 1 0 .4 2 .2 0 .3 2 5 .4 A K S te e l H o ld in g 1 0 9 1 2 4 1 0 1 4 2 8 7 .9 5 .0 0 .9 0 .7 0 .2 1 6 .9 E a st m a n C h e m ic a l 1 1 5 2 8 4 9 8 4 3 2 9 .9 6 .4 1 .7 0 .6 0 .2 1 5 .1 D u k e E n e rg y 1 2 2 2 4 1 0 9 3 1 7 4 2 0 .3 1 4 .7 2 .9 1 .5 0 .3 9 .8 C o n o c o P h il li p s 1 3 4 5 1 2 6 9 9 1 9 9 3 3 4 .7 1 9 .6 1 0 .4 2 .5 0 .9 1 5 .2 P re c is io n C a st p a rt s 1 4 2 9 1 9 5 8 7 5 0 0 1 5 .8 5 .0 5 .3 2 .7 0 .6 1 2 .8 A lc o a 1 5 6 1 5 7 4 8 5 9 8 3 2 0 .3 1 1 .1 5 .2 1 .5 1 .2 1 1 .7 V a le ro E n e rg y 1 6 3 6 1 4 4 2 8 3 9 9 3 5 9 .9 3 8 .7 1 8 .3 1 .8 0 .5 1 9 .8 F o rd M o to r 1 7 3 5 4 4 4 7 5 3 6 0 2 4 .6 1 5 .4 5 .1 2 .0 0 .3 1 1 .2 G e n e ra l M o to rs 1 8 4 5 6 6 2 7 3 2 4 8 2 9 .5 1 7 .9 7 .3 1 .7 0 .4 1 5 .6 G o o d y e a r 1 9 2 7 2 1 1 6 7 6 3 2 2 7 .3 1 9 .1 4 .3 1 .6 0 .4 1 5 .7 E .O N 2 0 1 0 1 9 4 6 5 5 7 9 2 1 .6 1 7 .1 1 .8 1 .1 0 .2 1 3 .2 M a ts u sh it a E le c tr ic In d l 2 1 4 1 8 6 5 3 4 6 5 4 .6 4 8 .1 3 .6 1 .4 0 .3 1 3 .1 F re e p o rt -M c M o ra n C o p p e r & G o ld 2 2 1 8 1 6 8 6 3 9 1 1 6 2 .1 2 .9 5 7 .1 0 .5 1 .6 1 4 .8 A p o ll o M g t. (H e x io n S p e c ia lt y C h e m ic a ls ) 2 3 3 5 4 2 3 6 3 8 8 0 4 0 .2 1 4 .9 2 1 .9 2 .1 0 .6 1 3 .3 A v e ry D e n n is o n 2 4 1 3 1 0 2 6 2 7 4 0 3 7 .7 8 .3 1 4 .4 1 2 .7 0 .2 9 .7 B A S F 2 5 4 5 6 0 3 6 0 9 8 4 3 1 .9 2 4 .5 4 .3 1 .1 0 .3 1 5 .9 O w e n s C o rn in g 2 6 3 7 1 4 3 5 9 6 0 9 4 2 .6 1 4 .2 2 2 .0 4 .4 0 .5 1 4 .2 D o m in io n R e so u rc e s 2 7 1 9 1 9 6 5 8 6 4 2 2 9 .3 2 1 .4 3 .5 2 .2 0 .3 1 1 .3 A ll e g h e n y T e ch n o lo g ie s 2 8 2 9 1 6 8 5 8 3 7 5 8 .3 5 .2 1 .2 0 .6 0 .2 1 3 .1 B P 2 9 5 8 1 2 7 1 5 4 3 3 6 5 4 .7 1 6 .9 3 0 .9 5 .4 0 .7 1 6 .2 H o n e y w e ll In te rn a ti o n a l 3 0 5 7 4 1 1 5 0 4 1 7 4 2 .1 3 0 .3 8 .8 1 .9 0 .3 1 5 .8 In te rn a ti o n a l P a p e r 3 1 5 2 6 0 8 4 9 3 8 5 3 0 .6 2 5 .5 2 .6 1 .0 0 .4 1 6 .2 A sh la n d 3 2 6 7 6 4 6 4 3 4 9 2 3 0 .7 2 0 .6 5 .9 1 .6 0 .3 1 8 .9 C o n st e ll a ti o n E n e rg y 3 3 1 4 1 0 8 4 2 9 7 2 3 5 .5 2 1 .5 1 0 .2 2 .1 0 .3 1 1 .2 P u b li c S e rv ic e E n te rp ri se G ro u p (P S E G ) 3 4 9 9 7 4 1 7 7 3 5 7 .0 1 8 .2 2 6 .8 1 0 .1 0 .4 1 6 .5 A E S 3 5 1 4 1 9 1 3 9 7 8 9 2 9 .8 1 4 .0 1 3 .9 1 .2 0 .3 1 5 .1 P ro g re ss E n e rg y 3 6 1 4 2 3 4 3 8 0 2 7 2 4 .0 1 2 .3 7 .7 2 .1 0 .6 1 1 .2 N u c o r 3 7 2 9 3 1 7 3 6 9 6 3 5 1 .3 4 6 .9 2 .6 0 .7 0 .3 2 1 .2 U n it e d T e ch n o lo g ie s 3 8 4 2 1 5 0 3 6 5 2 6 3 0 .6 2 1 .7 5 .7 2 .0 0 .3 7 .6 T im k e n 3 9 1 5 7 9 3 6 0 4 7 1 7 .6 1 2 .9 1 .1 0 .5 0 .4 1 7 .4 B e rk sh ir e H a th a w a y 4 0 6 2 4 1 9 3 5 2 8 5 3 7 .8 2 4 .3 1 0 .1 1 .5 0 .7 1 3 .2 S P X 4 1 1 2 4 9 3 4 5 5 9 3 9 .8 1 9 .6 1 4 .6 3 .2 0 .5 1 1 .2 T o x ic 1 0 0 F ir m s − 2 5 1 8 3 0 9 6 5 4 7 2 4 0 9 4 3 4 .2 1 9 .8 1 0 .5 2 .1 0 .5 1 5 .2 A ll F ir m s − 1 0 2 6 3 6 1 6 4 7 0 1 4 5 7 6 9 8 2 3 4 .8 1 8 .1 1 2 .6 2 .2 0 .6 1 5 .3 U S P o p u la ti o n − − − − 3 1 .8 1 1 .8 1 3 .7 3 .7 0 .7 1 2 .9 24 A p p e n d ix T a b le 1 , c o n ti n u e d . M in o ri ty a n d P o v e rt y S h a re s o f A ir b o rn e H u m a n H e a lt h R is k : T o x ic 1 0 0 C o rp o ra ti o n s T o x ic 1 0 0 R S E I M in o ri ty B la ck H is p a n ic A si a n / P a c ifi c N a t. A m . P o o r R a n k F a c il it ie s R e le a se s S c o re S h a re S h a re S h a re S h a re S h a re S h a re R o y a l D u tc h S h e ll 4 2 1 9 6 0 9 3 4 5 5 6 4 3 .5 1 7 .3 2 0 .4 3 .8 0 .7 1 3 .8 S o u th e rn C o 4 3 2 2 3 0 6 3 3 5 7 7 3 3 .6 2 6 .2 4 .2 1 .7 0 .4 1 2 .5 A ll e g h e n y E n e rg y 4 4 9 1 5 9 3 1 5 3 9 1 0 .2 7 .1 0 .8 1 .0 0 .2 1 4 .1 A m e ri c a n E le c tr ic 4 5 2 0 5 2 4 3 1 3 6 4 9 .3 5 .7 1 .2 0 .7 0 .4 1 2 .4 R e li a n t E n e rg y 4 6 1 5 2 6 0 3 0 8 2 1 1 4 .0 8 .1 3 .5 1 .2 0 .2 1 0 .7 B o e in g 4 7 1 2 1 1 3 3 0 4 5 3 3 3 .7 1 2 .3 1 1 .1 6 .1 1 .3 1 3 .6 G e n e ra l D y n a m ic s 4 8 1 6 6 7 3 0 3 3 7 6 9 .0 1 1 .1 4 9 .1 6 .7 1 .0 2 0 .9 O c c id e n ta l P e tr o le u m 4 9 2 1 3 9 1 3 0 1 6 7 4 3 .6 3 0 .8 9 .7 1 .6 0 .4 1 6 .9 K e y S p a n 5 0 4 4 0 2 9 0 0 8 5 3 .7 1 8 .2 2 4 .7 9 .1 0 .5 1 7 .8 L y o n d e ll C h e m ic a l 5 1 2 5 5 0 1 2 8 5 9 1 3 3 .6 1 1 .8 1 8 .5 1 .9 0 .3 1 4 .9 S u n o c o 5 2 4 0 7 7 4 2 7 8 5 1 3 3 .5 2 2 .2 6 .1 3 .6 0 .3 1 6 .6 A n h e u se r- B u sc h C o s 5 3 2 1 7 9 2 7 0 3 2 4 1 .0 3 0 .1 6 .5 2 .4 0 .4 1 6 .7 B a ll 5 4 3 0 1 8 4 2 5 7 0 9 3 8 .5 1 1 .3 2 1 .4 4 .1 0 .6 1 4 .8 D e e re & C o 5 5 1 0 6 7 2 5 3 4 6 1 9 .9 6 .8 1 0 .2 1 .1 0 .4 1 5 .6 P ro c te r & G a m b le 5 6 2 3 1 0 8 2 5 2 3 8 4 1 .2 3 6 .6 2 .4 1 .1 0 .2 1 6 .1 T e so ro 5 7 8 3 6 1 2 4 7 0 8 2 4 .6 2 .6 1 1 .6 5 .9 1 .8 1 0 .0 T e m p le -I n la n d 5 8 1 9 1 2 0 2 4 5 3 7 4 7 .0 2 4 .8 2 1 .2 0 .5 0 .4 2 0 .1 P fi z e r 5 9 1 7 2 3 1 2 4 5 0 8 3 8 .3 1 9 .5 1 3 .9 2 .5 0 .5 1 9 .8 R o w a n C o s. 6 0 2 2 1 2 4 3 8 9 4 6 .2 3 0 .3 1 3 .6 0 .7 0 .5 2 1 .6 L e g g e tt & P la tt 6 1 3 6 6 9 2 3 8 7 0 2 8 .2 5 .5 1 8 .6 1 .8 1 .0 1 2 .6 N o rt h ro p G ru m m a n 6 2 1 4 8 7 2 3 7 9 8 5 6 .6 4 9 .8 3 .3 1 .8 0 .4 2 2 .6 W e y e rh a e u se r 6 3 4 9 4 7 6 2 2 7 0 8 2 3 .0 1 5 .1 4 .0 1 .1 1 .1 1 7 .1 R o h m a n d H a a s 6 4 3 7 5 8 4 2 2 4 8 9 4 0 .9 1 5 .1 2 1 .4 3 .1 0 .4 1 6 .5 T y c o In te rn a ti o n a l 6 5 2 9 2 1 5 2 2 1 1 5 3 2 .7 1 6 .6 1 0 .6 3 .0 0 .7 9 .3 T e re x 6 6 1 1 3 1 2 1 7 3 0 1 7 .3 4 .9 4 .6 4 .4 0 .6 9 .4 C o rn in g 6 7 6 2 6 2 0 9 4 2 1 7 .6 1 2 .6 2 .4 1 .2 0 .3 1 2 .6 E x e lo n 6 8 5 5 3 2 0 8 1 1 3 3 .6 2 4 .2 4 .9 3 .3 0 .2 1 3 .6 F o rt u n e B ra n d s 6 9 2 2 1 0 3 2 0 5 8 3 1 9 .5 8 .0 9 .4 0 .8 0 .5 8 .0 F ir st E n e rg y 7 0 7 1 5 8 2 0 4 4 1 1 6 .8 1 2 .7 1 .7 1 .1 0 .1 1 0 .0 S u n c o r E n e rg y 7 1 1 3 5 2 0 3 7 8 4 5 .3 6 .9 3 3 .6 2 .5 1 .3 1 2 .9 C ro w n H o ld in g s 7 2 2 3 1 3 7 1 9 4 4 7 3 0 .5 8 .0 1 7 .9 3 .6 0 .5 1 4 .3 M a sc o 7 3 3 4 1 4 8 1 8 5 7 2 6 .7 1 .3 2 .8 1 .4 0 .4 1 2 .0 T h y ss e n K ru p p G ro u p 7 4 1 6 1 3 0 1 8 1 3 3 2 1 .7 1 2 .0 7 .3 1 .2 0 .5 1 2 .1 T e x tr o n 7 5 1 3 6 9 1 7 4 4 3 3 3 .6 2 4 .5 4 .9 1 .6 0 .7 1 3 .6 S o n y 7 6 6 3 6 1 6 4 2 6 1 2 .5 7 .4 2 .1 2 .0 0 .2 5 .3 M ir a n t 7 7 9 1 3 8 1 6 3 3 7 4 2 .4 2 4 .9 1 0 .6 4 .6 0 .4 9 .2 R A G 7 8 3 1 2 5 2 1 6 0 8 0 5 2 .9 4 5 .6 4 .2 1 .5 0 .5 1 8 .4 A lc a n 7 9 1 1 5 1 1 5 2 3 1 1 0 .8 6 .6 2 .2 0 .6 0 .2 1 2 .1 H u n ts m a n 8 0 1 7 2 8 0 1 5 1 1 9 4 7 .7 3 5 .0 9 .3 2 .2 0 .4 2 0 .4 B ri d g e st o n e 8 1 3 0 1 5 5 1 4 9 5 2 1 5 .9 8 .7 4 .0 1 .5 0 .4 1 0 .1 D a n a h e r 8 2 2 2 4 6 1 4 6 2 1 2 3 .9 3 .9 1 5 .8 2 .1 0 .9 1 5 .7 T o x ic 1 0 0 F ir m s − 2 5 1 8 3 0 9 6 5 4 7 2 4 0 9 4 3 4 .2 1 9 .8 1 0 .5 2 .1 0 .5 1 5 .2 A ll F ir m s − 1 0 2 6 3 6 1 6 4 7 0 1 4 5 7 6 9 8 2 3 4 .8 1 8 .1 1 2 .6 2 .2 0 .6 1 5 .3 U S P o p u la ti o n − − − − 3 1 .8 1 1 .8 1 3 .7 3 .7 0 .7 1 2 .9 25 A p p e n d ix T a b le 1 , c o n ti n u e d . M in o ri ty a n d P o v e rt y S h a re s o f A ir b o rn e H u m a n H e a lt h R is k : T o x ic 1 0 0 C o rp o ra ti o n s T o x ic 1 0 0 R S E I M in o ri ty B la ck H is p a n ic A si a n / P a c ifi c N a t. A m . P o o r R a n k F a c il it ie s R e le a se s S c o re S h a re S h a re S h a re S h a re S h a re S h a re P P G In d u st ri e s 8 3 3 0 4 9 6 1 4 3 0 0 2 3 .2 1 6 .7 3 .9 1 .1 0 .3 1 3 .0 H e ss 8 4 2 4 4 5 7 1 3 6 8 7 6 6 .5 1 5 .6 4 7 .6 4 .9 0 .3 2 6 .4 A k z o N o b e l 8 5 2 7 3 7 1 1 3 4 5 3 5 8 .6 4 4 .4 1 0 .4 2 .4 0 .3 2 5 .2 D y n e g y In c . 8 6 7 1 0 7 1 3 4 3 9 2 5 .6 1 3 .2 8 .9 2 .1 0 .3 1 0 .1 F e d e ra l- M o g u l 8 7 2 5 1 1 8 1 3 4 3 5 2 8 .0 2 1 .5 3 .5 1 .3 0 .3 1 3 .6 S ta n le y W o rk s 8 8 8 3 0 1 3 1 9 6 3 2 .1 2 3 .3 5 .7 1 .7 0 .4 1 0 .2 K o m a ts u 8 9 2 4 1 3 1 3 2 3 0 .9 2 3 .2 4 .0 1 .0 0 .3 1 9 .2 S a in t- G o b a in 9 0 5 5 1 5 9 1 3 0 1 2 3 8 .6 2 3 .5 1 0 .2 3 .0 0 .6 1 6 .7 P P L 9 1 4 8 3 1 2 9 7 2 1 1 .6 4 .3 4 .6 1 .6 0 .2 8 .0 C a te rp il la r 9 2 1 3 5 6 1 2 9 2 4 2 4 .2 1 1 .9 8 .6 1 .7 0 .2 1 1 .0 S m u rfi t- S to n e C o n ta in e r 9 3 3 0 2 4 4 1 2 8 6 8 2 9 .9 2 3 .1 3 .1 1 .6 0 .7 1 2 .0 S ie m e n s 9 4 2 2 6 6 1 2 6 4 9 3 2 .8 1 8 .3 1 0 .5 2 .1 0 .4 1 2 .8 M e a d W e st v a c o 9 5 1 0 2 1 4 1 2 4 6 5 4 0 .9 3 4 .0 4 .0 1 .4 0 .4 1 8 .3 M a ra th o n O il 9 6 3 7 7 0 5 1 2 4 5 4 3 3 .0 1 6 .3 1 2 .9 1 .9 0 .5 1 4 .3 E m e rs o n E le c tr ic 9 7 3 9 1 1 0 1 2 2 5 8 1 3 .1 7 .2 3 .7 0 .9 0 .3 1 5 .1 N o rt h e a st U ti li ti e s 9 8 5 8 4 1 1 1 1 5 1 1 .7 1 .4 5 .0 1 .4 3 .1 7 .9 N a ti o n a l O il w e ll V a rc o 9 9 7 2 5 1 1 0 4 2 7 8 .0 2 2 .3 5 3 .0 2 .0 0 .7 2 6 .5 D a n a 1 0 0 1 8 4 9 1 0 6 3 8 3 6 .2 2 9 .4 5 .3 0 .4 0 .2 1 7 .6 C h e v ro n 1 0 1 4 8 9 8 4 1 0 5 0 5 4 5 .4 1 7 .1 1 7 .0 8 .3 0 .4 1 3 .7 T o x ic 1 0 0 F ir m s − 2 5 1 8 3 0 9 6 5 4 7 2 4 0 9 4 3 4 .2 1 9 .8 1 0 .5 2 .1 0 .5 1 5 .2 A ll F ir m s − 1 0 2 6 3 6 1 6 4 7 0 1 4 5 7 6 9 8 2 3 4 .8 1 8 .1 1 2 .6 2 .2 0 .6 1 5 .3 U S P o p u la ti o n − − − − 3 1 .8 1 1 .8 1 3 .7 3 .7 0 .7 1 2 .9 26 Introduction Data and Methods The RSEI project The RSEI Project and Public-Release Data The RSEI Geographic Microdata (RSEI-GM) Census of Population & Housing: The Spatial Join Corporation-facility matching A Measure of Corporate Environmental Justice Performance Measuring group shares of human health risk Results Environmental justice performance at the facility level Best and worst ``in class'' rankings Total Human Health Impact and CEJP Conclusions 
work_f5wsakoncfae5per2cf3pumzjy	----	[PDF] Transgenerational epigenetics and environmental justice | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1093/eep/dvx011 Corpus ID: 1428014Transgenerational epigenetics and environmental justice @article{Rothstein2017TransgenerationalEA, title={Transgenerational epigenetics and environmental justice}, author={M. Rothstein and H. Harrell and G. Marchant}, journal={Environmental Epigenetics}, year={2017}, volume={3} } M. Rothstein, H. Harrell, G. Marchant Published 2017 Political Science, Medicine Environmental Epigenetics Abstract Human transmission to offspring and future generations of acquired epigenetic modifications has not been definitively established, although there are several environmental exposures with suggestive evidence. This article uses three examples of hazardous substances with greater exposures in vulnerable populations: pesticides, lead, and diesel exhaust. It then considers whether, if there were scientific evidence of transgenerational epigenetic inheritance, there would be greater… Expand View on SSRN academic.oup.com Save to Library Create Alert Cite Launch Research Feed Share This Paper 15 CitationsBackground Citations 5 View All Topics from this paper study of epigenetics SEN virus Biological Science Disciplines substance Pesticides Greater Than responsibility Inheritance Patterns Hazardous Substances Diesel Fuel Policy 15 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Transgenerational epigenetic inheritance and social responsibility: perspectives from the social sciences M. Meloni, R. Mueller Sociology, Medicine Environmental epigenetics 2018 11 PDF Save Alert Research Feed Human rights in the postgenomic era: Challenges and opportunities arising with epigenetics C. Dupras, Y. Joly, E. Rial-Sebbag Political Science 2020 1 View 1 excerpt, cites background Save Alert Research Feed Epigenetics, ethics, law and society: A multidisciplinary review of descriptive, instrumental, dialectical and reflexive analyses C. Dupras, Katie M. Saulnier, Y. Joly Psychology, Medicine Social studies of science 2019 8 Save Alert Research Feed Epigenetics: ethics, politics, biosociality L. Chiapperino Sociology, Medicine British medical bulletin 2018 4 PDF Save Alert Research Feed POHaD: why we should study future fathers Adelheid Soubry Psychology, Medicine Environmental epigenetics 2018 44 PDF Save Alert Research Feed Points-to-consider on the return of results in epigenetic research S. Dyke, Katie M. Saulnier, +8 authors Y. Joly Psychology, Medicine Genome Medicine 2019 10 Save Alert Research Feed Air pollution associated epigenetic modifications: Transgenerational inheritance and underlying molecular mechanisms. A. Shukla, N. Bunkar, +5 authors P. Mishra Biology, Medicine The Science of the total environment 2019 29 Save Alert Research Feed Epigenetics at the epicenter of a revolution in ARTs D. Albertini Medicine, Biology Journal of assisted reproduction and genetics 2018 PDF View 1 excerpt, cites background Save Alert Research Feed Impact of Environmental Injustice on Children’s Health—Interaction between Air Pollution and Socioeconomic Status Sahana Mathiarasan, Anke Hüls Medicine International journal of environmental research and public health 2021 PDF Save Alert Research Feed Synthetic female gonadal hormones alter neurodevelopmental programming and behavior in F1 offspring K. Garbett, T. Ding, J. Sweatt Biology, Medicine Hormones and Behavior 2020 View 2 excerpts, cites background Save Alert Research Feed ... 1 2 ... References SHOWING 1-10 OF 126 REFERENCES SORT BYRelevance Most Influenced Papers Recency DDT, epigenetic harm, and transgenerational environmental justice W. Kabasenche, M. Skinner Political Science, Medicine Environmental Health 2014 24 PDF View 2 excerpts, references background Save Alert Research Feed The ambiguous nature of epigenetic responsibility C. Dupras, V. Ravitsky Sociology, Medicine Journal of Medical Ethics 2016 24 PDF View 2 excerpts, references background Save Alert Research Feed Epigenetics and Future Generations. Lorenzo Del Savio, M. Loi, E. Stupka Sociology, Medicine Bioethics 2015 14 View 1 excerpt, references background Save Alert Research Feed Epigenetic inheritance and the responsibility for health in society. Mark Hanson, Ruth Müller Medicine The lancet. Diabetes & endocrinology 2017 15 View 1 excerpt, references background Save Alert Research Feed Multigenerational and transgenerational effects of endocrine disrupting chemicals: A role for altered epigenetic regulation? F. Xin, M. Susiarjo, M. Bartolomei Biology, Medicine Seminars in cell & developmental biology 2015 116 View 1 excerpt, references background Save Alert Research Feed Race and the new epigenetic biopolitics of environmental health B. Mansfield Biology 2012 78 Save Alert Research Feed Epigenetics in the Neoliberal "Regime of Truth": A Biopolitical Perspective on Knowledge Translation. C. Dupras, V. Ravitsky Sociology, Medicine The Hastings Center report 2016 18 View 1 excerpt, references background Save Alert Research Feed Neurological Diversity and Epigenetic Influences in Utero. An Ethical Investigation of Maternal Responsibility Towards the Future Child K. Hens Psychology 2017 3 Save Alert Research Feed Human transgenerational responses to early-life experience: potential impact on development, health and biomedical research M. Pembrey, R. Saffery, L. Bygren Biology, Medicine Journal of Medical Genetics 2014 197 PDF Save Alert Research Feed Social Epigenetics and Equality of Opportunity M. Loi, Lorenzo Del Savio, E. Stupka Sociology, Medicine Public health ethics 2013 74 PDF Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Topics 15 Citations 126 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_fammyzn6vfae7hnhguxmfauhnu	----	Violence and social justice Vittorio Bufacchi Palgrave MacMillan, Basingstoke, 2007, pp. xi, 218, hardcover £55.00, $32.95, ISBN: 0230552951 Contemporary Political Theory (2010) 9, 513–516. doi:10.1057/cpt.2010.13 ‘No justice, no peace’, threatens the bumper sticker and rally sign, raising in this popular form a serious question for contemporary political theory: What is the connection of violence and justice? Does injustice justify violence? Is violence, by its very nature, unjust? Vittorio Bufacchi attempts to clarify some of the conceptual puzzles surrounding our thinking about violence. Even if one demurs from some of his conclusions, the clear exposition of his liberal position makes this book a valuable contribution for political theorists trying to understand these critically important questions. Bufacchi offers a new definition of violence. He distinguishes between two common accounts of violence, which he labels the ‘minimalist approach’, which sees violence as an act of ‘intentional, excessive force’ and the ‘comprehensive approach’, in which violence is ‘a violation of rights’ (p. 26). The first of these approaches, Bufacchi argues, views violence more from the perspective of perpetrators, and the second, more from the perspective of victims. Arguing that the distinction between these two approaches is more ideological than logical, Bufacchi suggests his own alternative, as a way to provide an account of the nature of violence that ‘aspires to be universally valid’ (p. 29) and which can be seen to be from the perspective of a third-party observer. According to Bufacchi, then, violence is best understood as a ‘violation of integrity’, ‘used here in a strictly non-philosophical sense, meaning wholeness or intactness’ (p. 40). ‘An act of violence is fundamentally a violation of the integrity of the subject or object that suffers the violence, to the extent that the act of violence takes something away from the victim, therefore shattering the pre-existing psychological and/or physical unity that was in place before the violence took place’ (p. 46). For Bufacchi, this definition combines elements of both of the previous two understandings, but allows a third party to make the judgments about when violence has occurred. This allows him to identify four faces of violence: ‘when integrity is violated intentionally by means of a direct action; when integrity is violated intentionally by means of an omission; when the violation of integrity is foreseeable (even if not intended) as Book Reviews 513r 2010 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 9, 4, 508–516 a result of certain actions and when the violation of integrity is foreseeable (even if not intended) as a result of certain omissions’ (p. 91). From this definition of violence, through a series of elegant moves, Bufacchi is able to demonstrate that what is wrong about violence is that it results in humiliation, understanding humiliation as an affront to one’s integrity. By this account, then, Bufacchi defines violence as overlapping with the unjust. Bufacchi ends by considering whether violence can ever be just; he forces Fanon’s argument for violence into a kind of ‘identity’ argument for violence and finds it unconvincing, but argues that consequentialist accounts can help us to answer the question of ‘just violence’ by introducing a kind of proportionality. This short summary does not do justice to the intelligence of Bufacchi’s analysis; it is worth reading carefully. The most obvious target of Bufacchi’s argument is obviously and predictably approaches that see violence as ‘structural violence’. Bufacchi takes issue with this approach, begun with the Norwegian thinker Johan Galtung, whose more expansive definition is that ‘violence is present when human beings are being influenced so that their actual somatic and mental realizations are below their potential realizations’ (quoted at page 134) and for whom such structural violence is more harmful than direct violence. For Bufacchi, structural violence so broadens and weakens the category of violence as to make it meaningless; better, he argues, to call such exploitation ‘exploitation’ and not to assimilate it to the term violence. What, he asks, is gained by calling it violence? Quite the contrary, argues Bufacchi, expanding a term waters down its conceptual and moral force. Further, he argues, since some people see violence as biologically inevitable, then ‘if an injustice is reclassified as an act of violence, there is the potential risk that injustice will also be seen as inevitable’ (p. 137). ‘Fortunately’, he continues, ‘this debate between geneticists and philosophers can conveniently be by-passed if we rethink the relationship between injustice and violence y ’ (p. 137). Then, drawing upon the work of Judith Shklar, who saw injustice as so harmful that ‘most of us would rather reorder reality than admit that we are the helpless objects of injustice’ (p. 139), Bufacchi observes that the harm of injustice is that it, like violence, is bad and wrong because of ‘the Humiliation Factor, namely the sense of humiliation, vulnerability and powerlessness that goes with having one’s integrity violated’ (p. 139). This argument reveals both the strengths and limits of Bufacchi’s approach. His goal is to create a philosophically clear concept of violence. Yet in his attempt to provide a delimited and perspicuous account of violence, Bufacchi ends up bracketing some of the problems that are associated with using this concept in the real world. His ‘third person’, ‘impartial spectator’ conception of violence forces the question about who decides when a person’s integrity has been violated to another level, but it does not eliminate the question. And in Book Reviews 514 r 2010 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 9, 4, 508–516 making the question of humiliation the key, Bufacchi, though he recognizes ‘social and political dimensions’ to this question, evades the serious problem that we might call, after Peter Bachrach’s famous ‘second face of power’, the ‘second face of violence’ problem. After all, imagine that Shklar is right and some people do not see the injustice, or by extension, the violence committed against them, as humiliating. We might agree that a woman who thinks it is ‘natural’ that her husband will slap her if she makes a comment about the number of beers he has drunk has had her integrity violated, but if she does not, and if she is not humiliated, is it violent? On the one hand, Bufacchi’s impartial spectator is meant to solve this problem. But as many feminist analyses of domestic violence show (Bufacchi makes a passing reference to domestic and family violence at page 24), the ‘objective’ analysis is inadequate to providing any basis for changing the violent situation. Has her integrity been violated if she says, ‘well, I deserved it today and it is no big deal’? Similarly, Fanon’s account of violence does not rest upon ‘identity’, but on something close to what Bufacchi calls ‘humiliation’. Reading Fanon’s accounts of the individual Algerians who have suffered psychological devastation in Wretched of the Earth (Fanon, 1963) might well lead some ‘impartial spectator’ to think that colonialism is intrinsically violent. But suppose the impartial spectator sees such cases as isolated cases of individual devastation, and accepts the idea that colonialism has a civilizing mission (Narayan, 1995). Might not accounts that are ‘subjective’ in such cases prove more revealing about the nature of violence, and what the injustice of such violence is? It was to avoid such gaps between ‘objective’ and ‘subjective’ accounts of violence that lead theorists of structural violence, and Iris Young in defining violence as a ‘face of oppression’ to their conclusions. One wishes that Bufacchi had engaged the feminist literature on the nature of violence more directly, and that he had responded to the logic behind concepts such as structural violence rather than simply criticized them for their vagueness. There are many other questions about violence that we would want a political theory of violence to answer. Bufacchi evades the question about whether humans are intrinsically violent, and thinks his account stronger for this evasion. He also does not consider in depth the psychological questions about the effects of violence on perpetrators and victims. And his account of violence does not help us think about whether it is appropriate to provide ‘restorative justice’ as a remedy for violence. But it is unfair to ask Bufacchi to have taken on all of these questions. As he wisely notes at the outset of this book, the question about the relationship of violence and justice can only become more important to political theory in this new century. In providing such a clear and thoughtful addition to this discussion, he has done a major service to contemporary political theory. Book Reviews 515r 2010 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 9, 4, 508–516 References Fanon, F. (1963) The Wretched of the Earth. New York: Grove Press. Narayan, U. (1995) Colonialism and its others: Considerations on rights and care discourses. Hypatia 10(2): 133–140. Joan C. Tronto Department of Political Science, University of Minnesota, Minneapolis, USA Book Reviews 516 r 2010 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 9, 4, 508–516 Violence and social justice References 
work_fbhnwgm3vjhwdfvqxhx57npr3i	----	272-5651ndd.indd 300 Nature Vol. 272 23 March 1978 Mr Justice Parker and technical fact Mr Justice Parker, who some time ago handled the Flixborough inquiry into a devastating explosion in a British chemical plant with consummate judicial skill, applied the same talents last year to the proposed construction of THORP (see p298). He was appointed to the Windscale Inquiry, as it became known, perhaps because he had gained experience at Flixborough in inquiries requiring assessment of technical argument. Therefore, as one might expect, where the arguments concerning the con- struction of THORP are capable of strict technical analysis Justice Parker's final report- published by the government on 6 March this year - is masterly. At the lowest level of contention, his description of the basic physics and chemistry of the nuclear fuel cycle should be read by anyone wishing to understand the technical basis of nuclear power and the reprocessing of nuclear fuel. At the next level, Justice Parker 's chapters on risk perform a very valuable function in drawing together the data on the effects of routine discharges of radionuclides from Windscale, and on assessing the possibilities of accident. The Inspector even ordered a few experiments. With their agreement he subjected a few regular ftsh eaters on the coast (where the existing Magnox reprocessing facility discharges low-level liquid waste) to whole body monitoring for the presence of radio- active elements passed down the food chain to the fish and thence to the fish eater. Levels were well below the limits set by the International Commission on Radiological Protection . In such ways Mr Justice Parker allayed some fears about the dangers of Windscale by ascertaining facts . Parker has also made some positive recommendations for improvement, as in the scientific competence of the Nuclear Installations Inspectorate (Nil) to check the designs of THORP were it to be built, and in the constitution of the Windscale local liaison committee. The latter was set up to prepare emergency plans between the local community and Windscale , but, writes the Inspector 'it emerged in evidence that some of those who, in the event of an emergency, would be required to take action under the plan ... did not even know they had any responsibilities, much less know what these responsibilities were. This was clearly a grave defect .. .' British Nuclear Fuels Ltd (BNFL) who control Windscale have agreed to act on all Parker's criticisms so local liaison at least should improve shortly. Politics is involved in the environmental and health risks associated with THORP at least to the extent that being subject to them is not a matter of choice for the local residents; but it seems clear that the risks are not likely to be greater than those involved with any other industry. But in almost all the other issues faced by the Inspector complex political judgements are involved. The two central political questions concerned with the construction of THORP are international and national: the effect on the proliferation of nuclear weapons (which we deal with on p302), and the choice of UK energy future. The latter choice offers a number of options quite distinct from the familiar ones of the high growth and low growth future. On one of these Mr Justice Parker heard two days of evidence (outlined below) from Gerald Leach of Mr Ju stice Parker : " We will be castiga ted anyway" the International Institute for Environ- ment and Deve-lopment (liED) , but he pays scant a ttention -to this in his report. The choice of energy future (in Leach 's paper it is one of low primary energy reached largely by choice of efficient consumption technology) drastically affects Mr Justice Parker's recommendation to build THORP. He argues in his conclusions that : ftr st, extra facilities are ne.eded for pro- jected lJ K arisings of spent fuel after about !995 ; second, the best way of dealing with the wastes is to reprocess the fuel; third, that it is better to build the plant early rather than late to gain experience of the technology and avoid possible technical hitches ; and fourth, ·that if we arc going to have reprocess- ing anyway we might as well improve its economics by importing foreign fuel for treatment . (He disposes of the problem of the prolifera,tion of nuclear weapons on the way by a s.pcc.ial read- ing of the non-proliferation treaty.) Thus the argument depend s on the projected UK arisings, which have their origins in a forecast of the Central Electricity Generating Board. This in turn depends on an energy con sumption forecast. A forecast used in this way represents a political decision. It selects a particular path among many options. Parker's words in the report are illuminating. Considering UK ansmgs of spent fuel to the year 2000 he first calculates that 4,150 tonnes will have a risen from existing reactors and from those under construction. He goes on " If, as appears likely, reactors to pro- duoc a further 4,000 MW per year of electricity are ordered in the ncar future and begin to operate between 1990 and 1995 they will, by the year 2000, have produced a further 1,700 tonnes of spent fuel. Thus a total of 6,000 tonnes by the year 2000 from UK reactors alone is a realistic forecast" . (Another 4,000 MW is a large increase in nuclear power : the total nuclear generating capacity in England and Wales at the end of March last year was 3,462 MW) . It quite genuinely seems not to have occurred to Mr Parker, that the usc of "as appears likely" and "realistic" is, intentionally or nr)t, loaded, repre- senting a choioc of paths among alternatives. For example, the Depart- ment of Energy's recent decision to invest in the conservation of energy is projected by the department to reduce energy consumption by the end of the centry by 20%-or the equivalent of about 40,000 MW . Flexibilities of that order by political choice are quite fea sihle. Energy futures Gerald Leach 's two days of evidence , which formed an interim report on a study to be published by IIED in June, described a future with "substantial rises in ma terial standards, mobility and other energy-related activities". But it required not a rise but a reduction primary energy demand by the year 2000. This is achieved through increased consumption efficiencies with, for example, gas-fired heat pumps for heat- in g and good thermal insulation. The energy group of the Sussex University Science Policy Research Unit has also discovered that market competition between North Sea gas and electricity at the end of the century might restrict electricity to "essential" uses --such as lights, television, and electric motors. It follows, because of the poor energy efficiency of electricity generation in power stations, that on this basis there is a reduction of some 40% in primary energy consumption . Futures studies have lately taken on a completely new meaning , of which Mr Justice Parker does not appear to be aware: the meaning of offering an option to a policy maker, not of pre- dicting the future . Mr Wedgwood Bcnn, the UK Secretary of State for Energy. expressed a view on this at a meeting on Windscalc at the Royal Institution last year: "To be mcs- • Macmillan Journals Ltd 1978 © Nature Publishing Group1978 Nature Vol . 272 23 March 1978 merised by forecasts is a way of getting you to do what the forecaster wants you to do" said Benn. "I want to have elbow room" . Elbow room-in the form of a set of decision options and their probable consequences-is what energy forecasts are now offering; it is false thinking to take only one as "realistic". Mr Justice Parker uses his single set of projected arisings to indicate that the existing Windscale reprocessing facilities, and those already granted planning permission, are insufficient to cope with the load. Waste management The next step is to show that the only effective means of dealing with this excess of spent fuel is to reprocess it- that is, to treat it chemically to separate out the highly act.ive wastes and, as a by.product of the existing process, produce separated uranium and plutonium. (The latter is not an essential step in that it can be reversed to produce a degraded mixture of the two , but it is essential if it is wished to conserve plutonium for bombs or fast breeder reactors). Here again a political element creeps in. The inquiry considered two principal options. The first is as pro- posed for THORP, to reprocess spent fuel rods, separate out the highly active wastes containing fission products and actinides, gla ssify the resul.t and dis- pose of it underground in geologically stabl.e rock formations. The second is to hold the spent fuel in its can, perhaps further encapsulate it , and store it m cooling pond s or in dry vaults (possibly filled with inert gas). Each means of waste management suffers an unresolved technical prob- lem . In the reprocessing route, we do not know if geological storage will work for the I 00,000 years or so for which the actinides are decaying . If it failed, a large amount of radioactivity could be released upon future generations. Equally in the storage route we do not know if the cans (stainless steel in the case of AGR reactors and zirconium alloy in the case of PWRs) will corrode. Agreed scientific knowledge is lack- ing in both cases; and projecting the futures of mate-rials must always be contentious as t·he only conclusive way to test a theory is to wai·t and se.e. Effective work on both has only recently been undertaken . What re- search there has been has concentrated on the re.proce.ss.ing route, as reprocess- ·ing has always been the obje·ctive of the nuclear industry for a rooson other than waste management: <the separa- tion of plutonium. So it is difficult, if not impossible, to assess in an entirely objective way which is the most eff·ective means of waste management. In such cases an apparently scientific and technical choice is in reality influenced by other forces : particularly, consideration of the decision one wants to reach. In that sen se the choice becomes a matter for political debate. Mr Justice Parker's choice (glassifica.tion) appeared to rest on his confidence in BNFL, hardly an impartial observer. Proliferation The most difficult poJ,itical judge- ment in the report concerns the pro- liferation of nuclear weapons through the separation of plutonium in repro- cessing. (In Japan's contract with BNFL, for example, plu<tonium-and the wastes-ultimately return to Japan, if the US, suppJ,ier of the original uranium, is willing.) If energy futures studies and waste management options offer a political choice, the dangers of proliferation require a finely balanced interna-tional diplomatic and political perspective, and should surely not have been a matter for decision in a court in Cumbria . BNFL's argument that providing reprocessing facilities, under international control, for foreign counc tries was deprolife.rating in that iot dis- couraged those countries from developing their own unsafeguarded reprocessing pla nts was accepted by Mr Justice Parker. Yet he did not apply to those coun- tries the argument he applied •to the UK: that there was pressure to re- process to lessen dependence on foreign suppliers through •the collection of plutonium (whi·ch might give a 50- fold increase in the ava·ilable energy in a given stock of uranium, if fast breeder reactors were 'employed). Nor did Parker give weight to the over-riding question in proliferation: the effect that the example of build- THORP might have on the tense international atmosphere prevailing on commercial trading in nuclear materials. Mr Justice Parker accepted the arguments of BNFL and yet BNFL's strict impartiality on proliferation must be questioned. It is true that many people in the nuclear industry have been involved in international exercises on non-proliferation throughout their careers; but they have inevitably mixed motives. Their aim is to transfer nuclear tech- nology and materials; but with that goes a small but unavoidable risk of bringing another country closer to nuclear war-a risk they attempt to reduce. One way of reducing the risk (in the short term at least, before the country creates its own technology) is not to transfer the technology or materials at all. But that option would not be likely to occur to them . The 301 attitude of certain senior members of BNFL to proliferation is, to say the least , equivocal: in an interview with Nature last week one made it plain that in his view limited nuclear war in re- mote countries u!ling weapons made from commercial-grade plutonium need not necessarily escalate to global con- flict and would be survivable even for the countries involved. It is with this kind of pressure- whether those producing it were aware of it or not-that Mr Justice Parker was dealing; yet he shows no signs of recognising the fact in his report , and perhaps compensating for it. Mr Justice Parker , however , is not to be castigated for coming to decisions on all these issues. That was his role: as a judge, to judge. But while demon- strating the ridiculousness of many of the more irrational fears about nuclear power-a good thing- he did little to illuminate the corners where the political decision making lay. The Inquiry itself, howeve-r, had done just that, and many h2.d been left w~.th a hope-which in retrospect seems no more than romantic- that the report would reflect the debate. But Mr Justice Parker was there to decide, not to illuminate controversy. Yet it might still be the case that the kind of analysis given here of the political content of technical decision making would be alien to him. Intro- duced by politically leftist thinkers and groups it seems automatically to have been ignored by those of a rightist inclination-because of its unsavoury associations. But the decisions would still have a political content even if Mr Justice Parker had decided in com- pletely the opposite direction, and this article would have equal force. It is the nature of the case. Technical decisions as complex as these have a political content and that content must be isolated and recognised for what it is . It is illuminating to discover that, with a few outstanding exceptions, those to whom the political content of the report has become apparent are those who disagree with its conclusion. Sir John Hill, chairman of the United Kingdom Atomic Energy Authority, is delighted with the report for its "lack of ambivalence. I'm not fond of debate" said Sir John "I prefer analy- sis" . Sir John considered the document to be preferable to its forerunner on nuclear power, the sixth report of the Royal Commission on Environmental Pollution, chaired by Sir Brian Flowers, which he did find to be ambivalent. But this indeed was its strength , in that it declared the places where there must be political decisions and proffered the evidence. Mr Justice Parker, if the constitution of the inquiry had allowed it, would have done better to have done the same. Robert Walgate Mr Justice Parker and technical fact Waste management Proliferation 
work_fccvd7tve5ec5lhxprg4coupym	----	Procedural justice and regulatory compliance Law and Human Behavior, VoL 20, No. 1, 1996 Procedural Justice and Regulatory Compliance 'Ibni Makkai 1 and John Braithwaite 1~ This is a study o f perceptions o f the procedural justice of a business regulatory process among 341 Australian chief executives o f small organizations. Only mixed support is found for the notion that procedural justice perceived by chief executives explains changes in the compliance o f the organizations they run. A factor analYsis suggests that five facets o f procedural justice--consistency, correctability, control impartiality, and ethicality--can be combined to form a single measure. The decision accuracy facet was not part of the general procedural justice factor. It is just one of these facets, contro~ that is significantlY associated with changing compliance. As the chief executive's perception that they have had some control over the enforcement process increases, organizational compliance improves. The procedural justice measures correlate more strongly with regulatee satisfaction for this regulatory regime than do regulatory outcomes. A significant reorientation of law and social science research has been effected by the social psychology of procedural justice tradition (Lind & Tyler, 1988; Thibaut & Walker, 1975; Tyler, 1990). At root, this intellectual tradition challenges forward- lookingl economistic and rational choice models, with their focus on outcomes. Pro- cedural justice scholars emphasize, in contrast, the effects of the perceived fairness of the processes that lead to outcomes. The idea is that looking back on the fairness of the processes one has experienced might shape future behavior more than look- ing forward to expected outcomes. Experienced fairness matters more than expected utilities. While this claim remains controversial, there can be no doubt that subjec- tive procedural justice has some capacity to explain Why People Obey the Law? (Ty- ler, 1990). In this study, we will test the explanatory power of procedural justice in a domain where expected utility has been found to lack general explanatory power (Braithwaite & Makkai, 1991; Makkai & Braithwaite, 1994). This domain is com- pliance with the quality of care standards mandated for nursing homes by the Aus- tralian government. This will enable quantitative testing of procedural justice hypotheses for the first time on corporate as opposed to individual compliance. IResearch School of Social Sciences, Australian National University. 21"o whom correspondences (including requests for reprints) should be addressed at Law Program, Research School of Social Sciences, Australian National University, 0200 Canberra, Australia. E-mail: jbb304@coombs.anu.edu.au. 83 0147-7307/96/02{X)4]083509,50fl �9 1996 American Ps~hology-Law Society/Divlsion 41 of the American Psychological ~ t i o n 84 Makkai and Braithwaite It might be said that the social psychology of procedural justice constructs theories o f individual behavior, so there is n o reason to expect that it would be relevant to corporate conduct. On the contrary, qualitative research on corporate compliance with regulatory laws that has been conducted by sociologists, political scientists, and business scholars has been replete with observations of managers' perceptions o f procedural injustice undermining corporate commitments to compli= ance (Bardach & Kagan, 1982; Braithwaite, 1985; Levi, 1988; Sigler & Murphy, 1988; Vogel, 1986). While the procedural justice tradition is primarily about mi- croencounters between individuals (but see Lind, Kulik, Ambrose, & de Vera Park, 1993; Lind & Tyler, 1988), there is a parallel tradition of political theory at the macro level of whole societies which advances the proposition that states secure the compliance of their people when they strike a policy bargain that the citizenry perceives as just. Levi calls this the theory of contingent consent (Levi, 1993). T h e study of corporate compliance involves a test of the conceptual tools o f procedural justice t h a t is intermediate between individual and societal compliance. T h e capacity to abuse the organizational form enables the organizational actor to "pass o n " resentments fueled by perceived injustice in ways that non-organiza= tional actors cannot. This extends even to passing through the organization the impact of sanctions that are perceived as unfair:. Facilities will steal the money to pay fines from food or medical supplies because he Is/c] resents it. H e sure won't take it out of profits o r the Administrator's salary if he doesn't think the fine was fair. Because he resents it, he'll spite the bureaucrats by cutting the meat and eggs expenditure and blame the bureaucrats in his own mind for the way the patients are made to pay. (Executive Director of a U.S. state nursing home trade association) A n u m b e r of different facets of the procedural justice domain have been sug- gested in the literature. Drawing on Leventhal (1980) and Tyler (1988), six facets of procedural justice are identified in this paper--consistency, decision quality o r ac- curacy, correctability, control, impartiality, and ethicality. Consistency is Leventhal's (1980) first criterion of procedural justice. It can m e a n consistency across time, but its important meaning in the domain of business regulation is consistent treatment of different businesses. This is the sense in which consistency is used in this article. 3 While consistency equates with the scientific conception of reliability, decision accu- racy or quality equates with validity. It means doing what is necessary to get the decision right (Tyler, 1988). Correctability means being able to complain about un- fairness by a law enforcer to some "agency or organization" (Tyler, 1988, p. 113). Control was partitioned by Thibaut and Walker (1975) into process control and de- cision control, while Leventhal (1980) combines t h e m in his notion of representation. Impartiality means absence of bias. The most i m p o r t a n t forms of prevention of favouritism or external bias in Australian society are t h e elimination o f bias o n the basis o f race, sex, age, nationality or o t h e r characteristics of persons. Ethicality is the m o s t vaguely defined of the procedural justice facets. Tyler (1988) defines it as "the degree to which the decision-making process accords with general standards o f fairness and morality" (p. 105). This gives it a m e a n i n g with little more specificity Sin a way, there is neither the reality nor the pretense of consistency across time in this domain because we are dealing with a new regulatory program (which was accepted as being thoroughly inconsistent with the past). Precedural Justice 85 t h a n t h e broad d o m a i n o f procedural fairness itself. W h e n Tyler (1988) c o m e s to operationalize ethicality, he does so in two ways--perceptions o f politeness a n d concern for rights. We prefer to view politeness as something conceptually quite different from ethicality (and i n d e e d ~ o m procedural j u s t i c e ) ? O u r p r e f e r e n c e is for Tyler's second specification o f ethicality as respect for rights. T H E N U R S I N G H O M E STUDY To test the importance o f a perceptual m o d e l o f procedural justice o n o r g a n - izational compliance, a panel design was used with two waves o f inspection d a t a a n d interviews with chief executive officers (directors o f nursing). Such d a t a were provided f r o m a study of Australian nursing h o m e s surrounding the four largest metropolitan centers in Australia where m o r e t h a n two-thirds of all nursing h o m e s in Australia are located. In 1987 t h e Australian g o v e r n m e n t moved t o take over from state governments the monitoring a n d e n f o r c e m e n t o f standards o f quality o f care in nursing h o m e s t h r o u g h o u t Australia. A t this time they also replaced the input standards t h a t h a d been used t o regulate the industry with 31 new o u t c o m e standards covering seven main objectives--health care, social independence, free- d o m o f choice, privacy and dignity enjoyed by residents, the environment o f the nursing home, the variety o f experience available to residents, and safety (including risks f r o m fire, violence, infection and the u s e of restraints). 5 A n initial sample o f 410 nursing h o m e s were inspected over a two y e a r pe- riod. 6 T h e p r o c e d u r e for inspecting nursing h o m e s is straightforward. A t e a m o f n o t fewer t h a n two, one o f w h o m must always be a t r a i n e d nurse, visits the nursing h o m e for an average o f 6.5 hours. The t e a m is required to inspect and rate each o f t h e 31 standards as met, action required or u r g e n t action required. Following this there is a compliance meeting between the nursing h o m e and the inspection t e a m where the t e a m discusses its initial ratings with staff. Negotiation over the accuracy o f the ratings sometimes requires t h e inspection t e a m to revisit the h o m e to g a t h e r f u r t h e r information. In this meeting the appropriate action plans t o bring the nursing h o m e into compliance are discussed a n d are included in the final report. 4Indeed, there is a correlation of only .17 between our measure of ethicality in Table II and a 7-point rating of the inspection team as "courteous" at one pole to "rude" at the other measured at time 1. When the courteous-rude rating is entered into the regression in Table V it is not a significant predictor. 5See Braithwaite, Braithwaite, Gibson, Landau, and Malckai (1991) for a detailed discussion of the standards. eThe government agreed to inspect a proportionate random sample (stratified by size, type of ownership, and level of disability of residents) of 242 nursing homes over a 20-month period. In order to increase sample size all additional homes inspected within the sampling regions during this time flame were included in the study (n = 168). The random and supplementary samples were compared on a range of factors (see Braithwaite, Makkai, Braithwalte, Gibson, & Ermann, 1990). There were no substantial differences between these two groups of homes in terms of geographical and organizational characteristics of the nursing home, the sociodemographic characteristics and attitudes of the directors of nursing, and the nursing home's compliance ratings. On this basis the two groups have been combined. However, the models include a control variable indicating whether or not the nursing home was part of the random sample. 86 Makkai and Braithwaite Within ten days o f the compliance meeting the final report is sent to the nursing h o m e w h o have six weeks in which to object to its contents. ~ It is these 31 ratings that provide the d e p e n d e n t measure of organizational compliance. A separate study has shown that the standards are reliable, valid, a n d comprehensive i n their coverage of the medical, personal, and social n e e d s o f the nursing h o m e ' s residents (Braithwaite, Bralthwaite, Gibson, Landau, & Mzkkai, 1992). O n this basis, the standards are s u m m e d to form a total measure o f com- pliance ranging f r o m 0 (no compliance) to 31 (absolute compliance). Test-retest reliabflities based o n i n d e p e n d e n t inspectors rating 50 h o m e s ranged f r o m .93 to .96 (Bralthwalte et a l , 1992). Following the finalization of the first inspection report, each director o f nursing was asked to participate in a face-to-face interview. These interviews were extensive, often lasting u p to three hours or into a second sitting. A wide range of issues were covered, two of which a r e important for this article--perceptions of procedural justice and decision accuracy. A 96% response rate was obtained for the random sample homes. A second inspection was undertaken of 341 of the initial 410 homes, mostly 18 to 20 m o n t h s later, s O n e h u n d r e d and three o f these h o m e s had c h a n g e d their chief executive officer between the two inspections. T h e directors o f nursing o f t h e remaining 238 h o m e s were mailed a questionnaire following the completion o f the inspection t e a m ' s report. To ma~miTe response rates, two follow-up letters were mailed to the respondents and the final follow-up was undertaken by telephone. Five directors o f nursing refused to participate and 36 failed to return a c o m p l e t e d schedule, resulting in a response rate o f 83%. �9 To properly assess the importance of procedural justice it is necessary to focus n o t on compliance at some point in time but on w h e t h e r compliance has improved over time. Perceptions of the procedural justice afforded to nursing h o m e s by in- spectors are assumed to be formed by the first encounters with standards monitor- ing teams experienced during the period from their first inspection through to their second inspection. Since we are testing the effect of an intervention during a finite period of time rather than the effect of an ongoing structural feature o f the envi- r o n m e n t , a change in compliance m o d e l is the correct one. I m p r o v e m e n t in com- pliance is m o s t effectively captured by using the total compliance score at the second inspection as the d e p e n d e n t variable and controlling for compliance at the f a s t inspection as a baseline against which to m e a s u r e change. T h e addition of the first inspection ratings as a control in "Ihble III partials out the nursing h o m e ' s initial performance, leaving only the change i n performance as the d e p e n d e n t vari- 7In the early days of monitoring the nursing homes, the report was sent to the proprietor of the home who then passed it o n to the director of nursing. This changed in 1988 so that the report was sent to both the proprietor and the director of nursing. SSee Braithwalte, Makkai, Braithwaite, and Gibson (1992) for a detailed discussion o f the follow-up rates for the study. Although preliminary data analyses indicated that the time between the first a n d second inspections d i d n o t significantly affect compliance, the time between the two inspections has been included in the model as a control variable. Analyses were undertaken to determine if there were any significant differences between homes that had, and had not, been visited by an inspection team. Out of seven characteristics of the director of nursing, four characteristics of the nursing home and three characteristics of the proprietor, only one characteristic of the director of nursing was found to significantly differ (p < .01) ('Braithwaite et al, 1992). Procedural Justice 8'7 able. This also has the effect of controlling for a variety o f factors that have been shown in previous work to affect corporate compliance among nursing homes (see Makkai & Braithwaite, 1991). These factors include the type of ownership, size and age o f the nursing home, and nursing resident profile. As there is no theoretical rationale as to why these factors should also affect change in the level o f compliance (compliance at time 2 controlling for compliance at time 1) it is assumed that the control for initial compliance captures all of their effects. T h e model does control for two additional factors. The first and most impor- tant is the geographical location of the nursing home. This factor was shown to be important in predicting first wave compliance, but as our fieldwork suggests that interstate differences in regulatory styles may have varied across time, this will im- pact on change in compliance. Three dummy variables are used to capture the four geographical regions--Queensland, Victoria, New South Wales, and South Austra- lia. South Australia has been chosen as the excluded category as nursing homes located in this state had significantly lower levels of compliance than the nursing homes in the other three states. The second control variable is whether or not the nursing home had been selected as part of the original random sample. In the models we also include measures of two alternative hypotheses--the use o f praise and subjective perceptions of deterrence. These rival measures allow some comparison of procedural justice with the explanatory power o f competing theories. Praise was selected f o r inclusion in the model because of previous evidence that it affects compliance (Makkai & Braithwaite, 1993) and because o f the plau- sibility o f the claim that inspectors who are procedurally fair will also be inspectors who offer a lot of praise. A procedural justice finding will be more robust if it shows an effect over and above the effect of praise. The praise measure is a com- posite scale of the use of eight different approaches to encourage compliance as reported by the individual team members (Makkai & Braithwaite, 1993). Directors of Nursing were asked the following questions: Different approaches will work under different circumstances in getting nursing homes to comply with government standards. How often have you used each of the following approaches to encourage compliance with the standards? Very often used, Quite often used, Sometimes used, Rarely used and Never used? Appendix A shows the individual items. Responses to these items were summed resulting in a praise scale ~vith a mean of 5.62, standard deviation o f 2.43, and a Cronbach alpha of .80. The final scale has a mean of 5.62, standard deviation of 2.43, with a Cronbach alpha of .80. As the inspection process is a team exercise, praise scores were averaged across the multiperson teams and then matched to the nursing home that the team inspected. Although 74% of inspectors returned usable questionnaires, 9 there were only 187 homes for which all members of the team answered a questionnaire, and there were 13 homes where no m e m b e r of the team returned a questionnaire. These latter homes have been excluded from the analyses. In the case o f homes where there are incomplete data on the team, we have taken what were available and 9Two hundred and fifty-eight inspectors were mailed questionnaires. Of these 14 refused to participate, 32 were returned to the sender, and 21 failed to return the questionnaire. 88 Maklud and Braithwaite included in the models a control for whether or not there were data for all t e a m members. 1~ "lhble IV shows that this has no effect on the model. A deterrence measure is included because the procedural justice paradigm is gene~ally advanced as an alternative to conceiving compliance as motivated by ra- tional weighing o f likely outcomes such as punishment (Tyler, 1990). The subjective perceptions o f deterrence measure used is a subjective expected utility model for enforcement, which is comprised of the additive and multiplieative effects o f the perceived certainty and severity o f five different sanctions that can be applied to nursing homes for noncompliance (Makkai & Braithwaite, 1994). The formal speci- fication o f this model is Compliance = a + b l ~ [ ( D 1 x P1 x $1)+ . . . + ( D 1 • Pk • Sk)] + e where a is the constant, b 1 is the coefficient, D 1 is the perceived probability o f detection, P1 is the perceived probability of punishment, S 1 is the perceived severity o f punishment, k is the full range o f sanctions, and e is the disturbance. At this time there were three Commonwealth sanctions in force along with a n u m b e r o f residual state government enforcement powers. The deterrence variable specified here includes three Commonwealth sanctions: (a) withdrawal of Common- wealth funding for new admissions to the nursing home; Co) withholding annual Commonwealth funding increase to compensate for inflation; and (c) cutting off all Commonwealth funding. It also includes two state sanctions: prosecution and $2,000 fine o f the proprietor, and withdrawal o f the home's license to operate. As the measure is comprised of 12 variables, there are some missing data which in a listwise procedure reduce the number of cases by 30%. To overcome this problem we have included eases with missing data in the variable but included a d u m m y variable where a score of 1 indicates that the home has missing d a t a and score o f 0 indicates that the home did not have missing data. This control variable was not found to be significant, as is shown in "lhble 1~. MEASURING PROCEDURAL JUSTICE This article uses both a composite and a disaggregated multifaceted measure o f procedural justice. We collect information on each o f the six facets of procedural justice--decision accuracy, consistency, correctabflity, control, impartiality, and ethi- cality. First, perceived decision accuracy was measured in the following way. A f t e r the first inspection, directors o f nursing were asked whether they agreed with the ratings that the inspection team had given the nursing home. There was high agree- m e n t with the inspectors' ratings. In 42% o f homes there was complete agreement with the inspection team's ratings on all 31 standards. A further 18% agreed with ratings given on 30 of the standards. The average number o f standards on which l~ elsewhere have shown that homes where complete data for t h e team was available were more h'kely to be located in Victoria and less likely to be from South Australia. Thus, restrictm" g the analyses would bias t h e sample to reflect the V'~'torian region. Procedural Justice 89 d i r e c t o r s o f n u r s i n g a g r e e d w i t h i n s p e c t i o n t e a m s w a s 28.5. T h e l o w e s t n u m b e r o f s t a n d a r d s o n w h i c h t h e r e w a s a g r e e m e n t w a s e i g h t ; this o c c u r r e d in o n e i n s t a n c e . F o l l o w i n g t h e s e c o n d i n s p e c t i o n , d i r e c t o r s o f n u r s i n g w e r e a s k e d t h e e x t e n t o f t h e i r a g r e e m e n t w i t h a v a r i e t y o f a t t i t u d i n a l s t a t e m e n t s . N i n e o f t h e s e i t e m s h a d b e e n specifically d e s i g n e d t o c a p t u r e t h e r e m a i n i n g f a c e t s o f p r o c e d u r a l j u s t i c e . Table I s h o w s t h e i t e m s a n d t h e d i s t r i b u t i o n o f r e s p o n s e s t o t h e m . T h e v a s t m a j o r i t y o f r e s p o n d e n t s a g r e e t h a t t e a m s w e r e i m p a r t i a l in t h e i r d e a l i n g s w i t h t h e d i r e c t o r o f n u r s i n g , a n d t h e r e is also r e l a t i v e l y h i g h a g r e e m e n t t h a t t e a m s w e r e ethical. D i - r e c t o r s o f n u r s i n g w e r e m o r e likely t o a g r e e t h a n d i s a g r e e t h a t t h e y h a d s o m e c o n - t r o l o v e r t h e i n s p e c t i o n p r o c e s s , w h i l e o p i n i o n is s o m e w h a t m o r e e v e n l y split o n t h e issue o f c o n s i s t e n c y . A l m o s t h a l f o f t h e d i r e c t o r s o f n u r s i n g n e i t h e r a g r e e d n o r Table I. Items Measuring Various Facets of Procedural Justice Neither Strongly agree nor Strongly agree Agree disagree Disagree disagree Consistency Standards monitoring teams are pretty 5 46 15 25 consistent in the way they do their job The Team that visited my nursing home two 3 15 36 39 years ago gave us compliance ratings inconsistent with the way other nursing homes are rated Correctability If you are treated unfairly by a standards 5 25 49 18 monitoring team, it is easy to get your complaint heard If a standards monitoring teams makes a 5 20 42 30 mistake in its ratings of your home, it is extremely difficult to get it corrected Control Standards monitoring teams have not 1 15 17 56 given me enough opportunity to put my point of view to them Standards monitoring teams have taken 7 64 17 10 notice of the things I said to them Things I said to the team that visited 4 45 32 14 my home two years ago had an influence on t h e final ratings by the team Impartiality Standards monitoring teams have shown 26 58 13 2 no bias against me because of race, sex, age, nationality or any other characteristic of me as a person Ethicality Standards monitoring terns have always 9 58 21 9 respected my rights 10 7 10 2 90 Makkai a n d Braithwaite disagreed on the issue o f correctability, probably a result of their having no expe- rience o f appeal processes (which arc available but rarely used). Where there was more than one item measuring a facet they have been com- bined to form composite mensures. 11 As there was no theoretical reason for a par- ticular item to have a heavier weight i n the scale, all items were standardized to have a variance o f 1 prior to scaling. Scales with no natural metric were rescaled to run from 0 to 10. EFFECTS OF PROCESS VERSUS OUTCOME ON REGULATEE SATISFACTION A n American study o f corporate agents by Lind et al. (1993) found that pro- cedural justice judgments about court annexed arbitration of civil suits explained acceptance o f t h e arbitration award in preference to going to trial. These re- searchers found a "fairness heuristic"--procedural justice judgements that mediated the effects of process impressions and outcome evaluations. 1hble II shows the cor- relations between the different measures of procedural justice and satisfaction with the new regulatory process at time 2 for the present study. Satisfaction with t h e regulatory process was measured by the following four items: Today, my opinion of the whole standards monitoring program is highly favorable, favorable, neither favorable nor unfavorable, unfavorable or highly unfavorable; My opinion of the whole standards monitoring program since it started has gone up a lot, g o n e up somewhat, not changed, gone down somewhat, or gone down a lot; The standards monitoring program has not made nursing home residents any better off: strongly agree, agree, neither agree nor disagree, disagree, strongly disagree; and On balance the standards monitoring program is an unwelcome development: strongly agree, agree, neither agree nor disagree, disagree, strongly disagree. With a Cronbach alpha o f .69, responses to these four items were summed to form a single measure of corporate actor satisfaction. 12 Where appropriate, item re- sponses were reverse scored prior t o scaling so that the final satisfaction measure r a n g e d from low satisfaction (0) to high satisfaction (10). 13 Consistent with the theory o f procedural justice, perceptions o f the fairness o f process are more strongly correlated with corporate actor satisfaction than are the favorableness of outcomes (overall compliance ratings after the first and second in- spections), with one exception. All the facets o f procedural justice, except for decision accuracy, correlate significantly with corporate actor satisfaction. These correlations range from .27 for impartiality to .46 for ethicality. The composite measure of pro- llWhere appropriate, items were reverse scored so that a high score indicated strOng agreement with the procedural justice facet. 12A principle components analysis of the four items resulted in a single factor being extracted which 3explained 53% of total variation among the four items. Items were standardized to a variance of one, prior to scaling. As the resulting scale had no natural metric it was re, scored so that it ran from 1 to 10. Procedural Justice Table IL Correlations Between Procedural Justice and Satisfaction with the Regulatory Process Corporate actor satisfaction Facets of procedural justice Impartiality .27** Ethicality .46"* Consistency .38"* Correctability .44** Control .44"* Decision accuracy .08 General measure of procedural justice Composite .54"* Favorablcness of outcome measures Compliance T] .01 Compliance T2 .15" */7<.05. **p < .01. 91 cedural justice correlates significantly with satisfaction. Of the two measures of fa- vorableness of outcomes, it is only compliance measured after the second inspection that is significantly associated with satisfaction, but this is weak (.15). DIMENSIONALITY AND PROCEDURAL JUSTICE The literature uses the term procedural justice to cover a number of facets all o f which were conceived as potentially important contributors to this general con- struct. A question that arises is whether empirically these measures can be viewed as components of a single procedural justice dimension. A principal component analysis of the six domains was undertaken and the factor loadings from the rotated solution are shown in Table III. The intercorrelations among the facets are relatively high except for the decision accuracy measure. This facet is poorly correlated with control and impartiality. Its highest correlation is with consistency; directors of nurs- ing who had high agreemettt with the inspection team's ratings were also more likely to perceive the tearn~ as having been consistent in their ratings. Tyler (1990) conducted a factor analysis on this same set of facets. A two- factor solution was obtained, with consistency and ethicality defining the second factor and all t h e remaining facets loading on the first factor. A two factor solution also emerged from the principal component analysis of the six facets in the present data, though a different two-factor solution. The first factor accounts for 47% of the variation in the original six variables. This factor contains 5 of the 6 facets. 14 The remaining factor comprised the decision accuracy measure, accounting for 17% of the variation in the facets. These data would seem to suggest that there is a 14Given that the variance of the decision accuracy measure is larger than for the other facets, the principal component analysis has been undertaken on the correlation matrix (Dunteman, 1989). 92 Makkai and Braithwaite Table HI. Principal Components Analysis of the Six Facets of Procedural Justice Intercorrelatious 1 2 3 4 5 Factor 1 Factor 2 1. Ethicality .84 .13 2. Control .28 .81 -.06 3. Correetability -~2 .40 .66 .34 4. Consistency .30 .43 .51 .62 .49 5. Impartiality .42 .28 .32 .30 .61 .04 6. Decision accuracy .19 .06 .21 .32 .10 .01 .94 Percent of variance explained 47 17 general procedural justice domain which can b e formed empirically by creating a composite measure of the five facets. Given that decision accuracy is measured in a very different way from the other facets, which are attitudinal items with the same response categories, we must not discount the possibility that decision accu- racy dropping out of the procedural justice construct is a measurement artifact. D O E S PROCEDURAL JUSTICE IMPROVE COMPLIANCE? A general procedural justice domain was formed by combining the five facets. As the literature does not insist that particular facets of procedural justice are of more importance than other facets in affecting orgardza" tional compliance, each item was given equal weight in the scale by ensuring that all the items had a variance of 1. A low score on the resulting composite procedural justice scale indicated that the director o f nursing had a low perception of the procedural justice of the regulatory process while a high score indicated that their perception of procedural justice was high. x5 In "lhble I V the effects of the composite measure on procedural justice are ex- amined. Appendix B provides the inter-correlations between the items. The composite measure of procedural justice (formed by combining ethicality, control, correctability, consistency, and impartiality) is not significantly associated with changing compliance. N o r are subjective perceptions of deterrence a significant factor in accounting for changes in compliance. Hence, the major competing paradigm to procedural justice, rational calculation over outcomes (Tyler & Dawes, 1993), fares no better in this model. However, praise is found to have a strong and significant effect on compliance. We see that nursing home inspectors who use praise as a strategy do b e t t e r at increasing compliance (see Makkai & Braithwaite, 1993 for a detailed discussion o f this finding). As there is a significant positive correlation of .18 be- tween praise and composite procedural justice, it could be that the significant praise effect is masking a procedural justice effect. However, composite procedural justice is still not significant when praise is excluded from the model. It may b e the case that empirically some facets are more important than others in changing compliance. To test this hypothesis, "lhble V examines the effects of each o f the facets of procedural justice separately on changing compliance. Given 15/~ the scale had no natural metric it was reseored so that it ran from a low of 0 to a high of 10. Procedural Justice Table IV. Examining Globa ! and General .Procedural Justice on Compliance a 93 Composite measure b (S~) Controls Initial inspection ratings .33 (.29)** Hew South Wales 1.72 (1.08) Queensland 1.29 (1.20) Victoria -1.64 (1.20) Sample home .07 (.87) Length of time between first and second inspection .03 (.08) Gender composition of the team .11 (.65) Team's experience -.12 (.58) Full team 1.05 (.69) Control for missing data on deterrence model .42 (.62) Alternative hypthoses Team's reported use of praise .62 (.19)** Full deterrence model .01 (.02) Procedural justice measure Composite .15 (.20) Constant 10.65 Adjusted ~ .30 an = 192. Likewise deletion of data was used when estimating the models. The model also controls for missing data on the deterrence measure. *p < ,05. **p < .01. that the c o m p o s i t e m e a s u r e has failed to b e a significant predictor, w e should n o t b e surprised to see t h a t all b u t o n e o f t h e facets fail to b e significant. P e r c e p t i o n s o f control, however, are associated with a significant change in compliance o v e r time after praise, d e t e r r e n c e , and o t h e r controls a r e e n t e r e d in the model. T h e relationship is in the hypothesized direction, with directors o f nursing w h o perceive t h e m s e l v e s as having h a d s o m e control o v e r the regulatory process b e i n g m o r e likely to b e in charge o f nursing h o m e s that have i m p r o v e d in their compliance ratings over time. This is a strong result w h e n w e r e m e m b e r t h a t a masking effect m a y arise from including praise in t h e model. Again in this m o d e l praise has a significant positive effect o n c o m p l i a n c e and praise is c o r r e l a t e d .20 with control. T h e r e is a c o m p e t i n g interpretation to the t h e o r y o f p r o c e d u r a l justice for this result. This is that t h e fact o f giving directors o f nursing m o r e control o v e r t h e assessment o f compliance ratings is w h a t causes t h e i m p r o v e m e n t in c o m p l i a n c e ratings. While this c o m p e t i n g interpretation is obvious a n d strong, it m u s t b e t e m - p e r e d by recalling t h e extraordinarily high (.93 to .96) reliability o f c o m p l i a n c e b e - t w e e n raters, a result that is n o t consistent with i n s p e c t o r s b e i n g led to very different ratings in r e s p o n s e to differential assertion o f control b y directors o f nursing. A conclusion t h a t subjective p e r c e p t i o n s o f c o n t r o l over a process increase c o m p l i a n c e with its r e q u i r e m e n t s is c o n s i s t e n t with t h e literature (Tyler, 1990). Thibaut and Walker's (1975) original theory o f p r o c e d u r a l justice is really a t h e o r y o f control, to t h e exclusion o f t h e o t h e r facets later e m p h a s i z e d by L c v e n t h a l (1980) and Tyler (1988). H e n c e , t h e s e findings r e t u r n us to t h e centrality o f control as the h e a r t o f w h a t T h i b a u t and Walker saw as p r o c e d u r a l justice. 9 4 M a k e | a n d B r a i t h w a i l e ;I "~ .~ G~ A A ~ " ~ , i ~ ~ ~ 8 v Procmtural Jugi~ 95 CONCLUSION T h e r e is some vindication of t h e claims o f the social psychology of procedural justice tradition in these results. Perceptions of the fairness of processes are m o r e strongly associated with satisfaction with the regulatory process than are the favor- ableness o f regulatory outcomes. Apart from decision quality or accuracy, the cri- teria of procedural justice cited in the literature are indeed strongly correlated with general perceptions o f fairness. Indeed, a principal components analysis finds that they comprise a general procedural justice factor. However, the general measure of subjective procedural justice does not sig- nificantly predict compliance, and only one o f the specific facets of procedural jus- tice significantly predicts compliance in the regressions. Even so, control, the facet that does h a v e a significant effect in,improving compliance, is precisely the facet that we, like Thibaut and Walker (1975), had predicted would be most important. T h e o t h e r facets, one way or another, we had concluded on the basis of our quali- tative fieldwork not to be major issues. O u r reliability study shows consistency t o be remarkably high, at least within states (Braithwaite et al., 1992). O n the o t h e r hand, at the subjectiv e level there is a surprisingly marked concern about consis- tency a m o n g a substantial minority of directors of nursing. At this subjective level, impartiality and ethicality arc rarely concerns about Australian nursing h o m e in- spectors. They c o m m a n d enormous respect on these dimensions. Correctability is a strange facet in this domain since it is extremely rare for directors of nursing to contemplate lodging, an appeal against the decision of an in- spection team, let alone actually doing so. Such an appeal has yet to end up in a court, and even utilization of the tripartite (industry-government-consumer group) alternative dispute resolution mechanism (the Standards Review Panel) has rarely been used. T h e modal response on the correctability items is "neither agree nor dis- agree" because directors of nursing are responding from no basis of experience and in most cases have thought little about it. In some important ways, there is a negative relationship between the importance of control and the importance of appeal mecha- nisms. A nursing home inspector from New Jersey explained the common reason in both the United States and Australia why the sanction of imposing a ban on new admissions to the nursing home is rarely appealed: "Control is in the nursing home's hands. As soon as you fix this, it's lifted. Because they control their destiny, they d o n ' t challenge it." Through this process of elimination, control became the dimension of procedural justice that we always thought would be important in this context. T h e implication would seem to be that in different contexts, we need to think in rather specified ways about what are the facets of procedural justice that matter. In this first test of the theory on corporate compliance with the law, voice to influence the process and the decision was important in building a commitment among man- agers to comply. Our qualitative fieldwork observing 58 Australian nursing h o m e inspection events strongly confirms the importance of both process and decision con- trol. T h e agenda for future quantitative work o n corporate compliance might be to develop m o r e elaborate measures o f control that distinguish process from decision control. Also n e e d e d are more elaborate designs (ideally experimental designs) that 96 Makkal and Braithwaite enable researchers to rule out competing interpretations of the direction of the causal processes underlying the voice-compliance association. There is a need to be cautious about the generalizability of these results. Aus- tralian nursing home regulation is a domain where corporate satisfaction with the regulatory process is mostly high: Directors of nursing generally agree with the rat- ings that inspectors give them, and consistency ratings have been shown objectively to be high; concerns about impartiality, ethicality, and correctability are rarely in- tense. These procedural justice facets might loom as more important in regulatory settings with greater heterogeneity o f client satisfaction. ACKNOWLEDGMENTS This project has enjoyed the funding support of the Australian Department of Health, Housing and Community Services, The Australian Research Council, the American Bar Foundation, and the Australian National University. The authors are indebted to the support of their colleagues on the Nursing Home Regulation in Action Project, Valerie Braithwaite, David Ermaun, Diane Gibson, and Anne Jenkins. We would also like to thank two anonymous referees for their comments. APPENDIX A Items Used to Form Team's Praise Scale a Percent who "very often Item-total used" correlation 45 .65 When a nursing home has caring values, telling them that you see them as having caring values When nursing home management puts care of the residents ahead of their own interests, telling them that you see them as a home that puts residents first Looking for opportunities to give credit to the nursing home where it is due Helping the nursing home feel good about the quality of the service they are providing Being generous with praise when improvements are made Offering words of encouragement when things are well done Praising an instance o f the nursing home solving a problem as a model for how they should set about solving other problems Finding out who are the caring professionals in the nursing home and trying to give them support (e.g., through praise in the report) (Cronbach alpha) 40 .53 45 .52 41 .51 44 .50 59 .49 17 .48 .39 (.80) an = 173. Eroced~il ,Justice _= ~ r o o r ~ t ~ �9 . ~ �9 I" l " I" I" I" N N N ~ g = ~ N ~ �9 r " " i . . . . r �9 ~ " " 1 " 1 " " i . . . . . I I . . . . ~ ' ' 1 " " 1 . . . . . . I ' 1 " I I I ~ " I ' 1 ' ' 1 " " 1 " 1 " 1 " | ' l ' l ' l ' i " ~ ' " I I ~ " 1 " 1 " " I ' 1 " 1 " M ' I ' " " 1 ~ I ' ' l ' " I ' 1 " 1 " 1 " 1 " ~ ~ ~ , , ~ , ~ ~ . . . . . . . I" " " I . . . . . . . . L = . = u ~ E ~ �9 ~ t4 k . ~ c.) vV 98 ~ and Braithwaite REFERENCES Bardach, E., & Kagan, R.A. (1982). Going by the book." The problem o f regulatory unreasonableness. Philadelphia: Temple University Press. Braithwaite, J. (1985). To punish or persuade: Enforcement o f coal mine safeo. Albany, NY: State University of New York Press. Braithwaite, J r Braithwaite, V., Gibson, Dr Landau, M., & Makkai, T. (1992). The reliability and validity o f nursing home standards. Canberra: Australian Government Publishing Service. Brm'thwaitc, J~ & Makkai, T. (1991). Testing an expected utility model of corporate deterrence. Law and Society Review, 2~ 7-41. Braithwaite, J r Makkai, T , Braithwaite, Vr & Gibson, D. (1992). Raising the standard." Res/dent centred nursing home regulation in Australia. Canberra: Australian Government Publishing Service. Braithwaite, J~ Makkai, T . Braithwaite, V~ Gibson, D., & Ermann, D. (1990), The contribution o f the standards monitoring process to the quality o f nursing home life: A preliminary report. Canberra: Department of Community Services and Health. Dunteman, G. (1989). Principal components anabeis (Sage University Paper Series on Quantitative Appfications in the Social Sciences, 07-069). Beverley Hills: Sage. Hanusheck, E. A., & Jackson, J. F.. (1977). Statistics methods for social scientists. Orlando, FL: Academic. l.eventhal, G. S. (1980). What should be done with equity theory7 In K. J. Gergen, M. S. Grnenberg, & tL H. Willis (Ecls.), Social ~3mnge: Advances in theory and research (pp. 27-55). New York: Plenum. Levi, M. (1988). O f ru/e and ~ Berkeley:. University of California Press. Levi, M. (1993). The construction of consent. Canberra: Urban Research Unit Discussion Paper, Australian National University. Lind, E., Kulik, C. T., Ambrose, M., & de Vera Park, M. V. (1993). Individual and corporate dispute resolution: Using procedural fairness as a decision heuristic. Adm/nistrat/ve Science Quartedy 38, 224-251. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum. Makkai, T., & Braithwaite, J. (1991). Criminological theories and regulator 7 compliance. Crbn/nology, 29, 191-220. Makkai, T., & Braithwaite, J. (1993). Praise, pride and corporate compliance. International Journal o f the Sociolo~ o f Law, 21, 73--91. Makkai, T., & Braithwaite, J. (1994). The dialectics of corporate deterrence. Journal in Research on ~ m e and Delinquency, 31, 347-73. Sigler, J. R., & Murphy, J. E. (1988).~Interactive corporate compliance: An alternative to regulatory compulsion. New York: Quorum. Thibant, J., & Walker, L (1975). Procedural justice" A psychological anatysis. I-Iillsdale, NJ: Erlbaum. Tyler, T. tL (1988). What is procedural justice? Criteria used by citizens to assess the fairness of legal procedures. Law and Society Review, 22, 103--135. Tyler, T. R. (1990). Why people obey the law? New Haven: Yale University Press. Tyler, T., & Dawes, R. M. (1993). Fairness in groups: Comparing the self-interest and social identity perspectives. In B. A. Mellers & J. Baron (Eds.), Psychological perspectives on justice" Theory and practice (pp. 87-108). Cambridge: Cambridge University Press. Vogel, D. (1986). National soles o f regulation: Environmental policy in Great Britain and the United States. Ithaca: Cornell University Press., 
work_fejshhkxkjfkzfkenoqv2ozwue	----	Science Magazine S C I E N C E sciencemag.org By David H. Strauss1,2, Sarah A. White1,3, Barbara E. Bierer1,3,4 T he disproportionate impact of COVID-19 on certain populations, such as Black, Latinx, and Indigenous populations in the United States, has focused attention on inequalities in health and on the need to increase en- rollment of racial and ethnic minorities and other underrepresented groups in biomedi- cal research (1). Yet too often, in the United States and globally, participant enrollment in research has not reflected the demo- graphic composition of the general popu- lation, those affected by the health condi- tions being studied, or those for whom the investigational product is intended (2), with racial and ethnic minorities and the young and the elderly, among others, being con- sistently underrepresented (3). Underlying causes for this underrepresentation have been described (4, 5), but change has been slow. Notwithstanding the roles of other stakeholders in addressing this issue, we maintain that the specific value of institu- tional review boards (IRBs) and research ethics committees (RECs) in promoting di- versity has been underrecognized and their authority underutilized. Here, we substanti- ate the role of and outline practical steps for the IRB and REC (hereafter “IRB”) to help achieve greater diversity in clinical research. The appropriate inclusion of diverse pop- ulations in clinical research is necessary if we are to understand how biological vari- ability and social determinants of health contribute to disease prevalence, transmis- sion, course, experience of illness, and treat- ment outcome. The inclusion of understud- ied and underserved groups informs clinical decision-making and health policy and can serve efforts to address mistrust of research and health care (6, 7). Responsibility to the goals of diversity lies with all stakeholders in the clinical research enterprise (6), and a commitment to diversity, individually and collaboratively, by research sponsors, funders, academic institutions, contract re- search organizations, study sites, investiga- tors, and IRBs is necessary. RESPECT, BENEFICENCE, JUSTICE Most regulated clinical research undergoes obligate review and approval by an IRB. IRBs are charged with safeguarding the rights and well-being of human partici- pants in accordance with the foundational tenets of respect for persons, beneficence, and justice, as described in the Belmont Report (8). An IRB’s ethical responsibilities with regard to diversity derive from these and other principles, guidelines, and stan- dards (9, 10). The discussion of justice in Belmont cites “moral requirements that there be fair procedures and outcomes in the selec- tion of research subjects.” As Belmont and other codes of ethics emerged from a his- torical backdrop of abuse and injustice in research, “fair procedures” have been ap- plied by IRBs largely (and, we believe, too narrowly) to ensure that subjects are not exploited and enrolled as a matter of con- venience. The idea of justice within the Belmont Report also includes the notion of access to the benefits of research (i.e., knowledge gained); this has direct implica- tions for populations that have been under- studied, whether incidentally or systemati- cally. Subject selection cannot be equitable, and the requirements of justice cannot be met, when there is de facto exclusion of un- derstudied populations. This notion of justice is supported by the World Health Organization’s International Ethical Guidelines for Health-related Research Involving Humans, Guideline 3, which states, “In cases where the underrep- resentation of particular groups results in or perpetuates health disparities, equity may require special efforts to include members of those populations in research” (9), and by the World Medical Association Declaration of Helsinki, which states, “Groups that are underrepresented in medical research should be provided appropriate access to participation in research” (10). Therefore, consideration of diversity is essential to the question of fairness in subject selection and to IRB review. Diversity in clinical research is respon- sive to the principle of beneficence, which places priority on the welfare of research participants and creates the obligation that research presents a favorable balance of benefit to risk, after risks and burdens have been minimized. In calling for “maximiza- tion of benefits” in the research, Belmont directs attention to both individual benefit and to the broader value of research to so- ciety. A clinical research enterprise that is not inclusive does not adequately address the health needs of a diverse society. Group differences in susceptibility to disease and in treatment outcome can only be identi- fied when those groups are studied. It is the obligation of an IRB to maximize ben- efits through the inclusion of understudied groups in a manner that is consistent with the study aims and does not introduce un- acceptable harm or burden. Belmont describes two ethical convic- tions in relation to respect for persons, self-determination, and decision-making: the obligations to treat individuals as au- tonomous agents and to protect those with diminished autonomy. IRBs provide ad- ditional safeguards for research involving participants with compromised voluntari- ness (e.g., prisoners) or impaired compre- hension. With regard to the inclusion of diverse populations, respect for persons demands efforts to foster informed and autonomous decision-making and, there- fore, to address common barriers posed by age, language, culture, and educational disadvantage. Respect for persons requires the identification of opportunities and re- sources to engage understudied popula- tions and to enhance awareness, access, and inclusion in research (4, 6). It also demands modification of those aspects of research and of consent that inadvertently limit the participation of understudied populations. For example, although inclusion of non- English speakers in a study may involve ad- ditional expenses of translation and/or in- terpreters, it strengthens the commitment to autonomy and justice. The ethical positions presented above compel attention to inclusion of diverse populations in clinical research and define a specific duty for the IRB. In a 2019 sur- vey (11), a majority of IRB chairs, IRB ad- ETHICS AND DIVERSITY Justice, diversity, and research ethics review It is time for institutional review boards and research ethics committees to address the ethics of inclusion P O L I C Y F O R U M 1Multi-Regional Clinical Trials Center of Brigham and Women’s Hospital and Harvard University, Cambridge, MA, USA. 2Vagelos College of Physicians and Surgeons, Columbia University, New York, NY, USA. 3Brigham and Women’s Hospital, Boston, MA, USA. 4Harvard Medical School, Boston, MA, USA. Email: bbierer@bwh.harvard.edu 19 MARCH 2021 • VOL 37 1 ISSUE 6535 1 2 0 9 Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ I N S I G H T S | P O L I C Y F O RU M 1 2 1 0 19 MARCH 2021 • VOL 37 1 ISSUE 6535 sciencemag.org S C I E N C E ministrators, and investigators agreed that “IRBs should play a key role in ensuring diversity among participants in terms of gender, ethnicity, and language.” Despite this, there has been scant regulatory consideration, and little formal discussion within the field, as to whether diversity falls within the IRB’s remit. There are also little data as to whether and when IRBs exercise this authority, but the observed underrepresentation in completed studies suggests that IRBs do not consistently attend to this responsibility. Further questions relate to re- cent U.S. regulation and policy requiring a single, designated IRB to serve as the IRB of record for multicenter research and whether this will offer benefit in consistency and reach with re- gard to diversity and inclusion. INCLUSION AND PROTECTION In the face of the persistent problem of underrepresenta- tion in clinical research, institu- tions should establish policies and provide necessary resources at all institutional levels to en- sure that reviewing IRBs fulfill this obligation. The specific ap- proaches we outline here will serve to help incorporate the ethical oversight of diversity in IRB procedures, deliberations, and expectations (see the box). An IRB has authority to re- quire that a research protocol details study elements relevant to considerations of diversity. A description and justification by the investigator of the demo- graphics of the intended study sample (e.g., by age, sex, race, ethnicity, social determinants of health) and a description of either the demographics of the condition or those using or intended to use the product in the general population per- mit the IRB to make an assessment of the appropriateness of the recruitment plan. When the makeup of the proposed sample deviates substantially from that of the de- mographics of the condition being studied in the general population or for whom the intervention is intended, and no valid sci- entific justification is offered, the IRB can require modification of the study to re- cruit a more representative sample. Such requirements are tailored to the nature and phase of the study, the study’s specific aims, and the study location, as discussed further below. Note that inclusion of a demographically diverse study population does not imply that statistical conclusions regarding het- erogeneity of treatment outcome will be possible, but it may allow directional as- sessments of efficacy and safety that can then be further investigated. Inclusion will, at a minimum, address the equitable selec- tion of participants and the principle of jus- tice in research. During review, an IRB should consider the feasibility of study methods that seek to identify, recruit, and retain underrepre- sented populations. Research team partnerships with pa- tients and their families, ad- vocacy groups, and commu- nity representatives have been shown to be effective in inform- ing recruitment and retention strategies (12) as well as in providing input on study ques- tions and participant-relevant endpoints, study conduct, and culturally and linguistically ap- propriate communications. The IRB should require a statement in the study proposal summa- rizing the nature, process, in- put, and impact of such patient and community engagement and how this information has shaped the study itself and the recruitment plan; simply ask- ing the question will prompt consideration by investigators. The IRB can review and pro- vide specific feedback to facili- tate successful recruitment of specific populations, includ- ing language use, translation, placement of advertisements, and workforce characteristics. The IRB should also ensure that all study materials adhere to health literacy principles and that user-testing is uti- lized where indicated. The IRB should identify factors, such as excessive time commitment, re- stricted clinic hours, the costs of travel, and inadequate com- pensation, that have a foresee- able and negative impact on the enrollment of an appropriately representative sample (13). IRBs should require inves- tigators to detail study inclu- sion and exclusion criteria and, when not self-evident, to provide a rationale for exclusion. Review of eligibility criteria should ensure that under- studied populations are not inadvertently or unnecessarily excluded and that criteria are only as restrictive as necessary for safety and to minimize harm. For example, the ex- clusion of older populations with a specific age criterion might be revised to exclude individuals with specific health concerns who would be at increased risk, regardless of age. When laboratory measures serve as the basis for eligibility criteria, they should be adapted to reflect known sex-, age-, race-, Institutional review board oversight: Points to consider by reviewers INITIAL REVIEW Study aims and subject selection • Do the demographics of the proposed sample reflect those of the population affected by the condition or for whom the intervention is intended? • When they do not, is the deviation adequately justified? • Is planned under- or overrepresentation by age, race, ethnicity, sex, gender, or social determinants of health in the sample scientifically justified? • Is there a statistical plan for examining heterogeneity in outcome or across subgroups? Criteria for inclusion and exclusion • Will inclusion and exclusion criteria inadvertently or unnecessarily result in under- or overrepresentation of understudied subgroups? • Have alternative approaches to minimizing risk that do not rely on exclusion been considered? Recruitment • Have recruitment procedures considered specific approaches to engage underserved populations? Study conduct • Are study procedures flexibly organized to accommodate the needs of underrepresented groups? • Do all participant-facing materials conform to health literacy principles? • Are participant materials translated? Is back translation necessary? If not, why not? Payment • Is payment sufficient to cover costs of participation? Return of results • Are study results intended to be returned in a manner that meets the needs of populations studied? CONTINUING REVIEW • Has the study fulfilled its recruitment and accrual goals? • Is demographic distribution on track to approximate the study goals? • If not, are adequate corrective actions described, sufficient, and likely to be successful? Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ 19 MARCH 2021 • VOL 37 1 ISSUE 6535 1 2 1 1S C I E N C E sciencemag.org or ancestry-specific normal values, when failure to do so would unnecessarily de- crease eligibility of some individuals (14). IRBs should identify common practices that limit enrollment of immigrant or minority language speakers in multilingual commu- nities, restrict the participation of women of child-bearing potential (when requiring appropriate contraception would suffice), and introduce bias in participant selection by using overly subjective criteria (such as “investigator discretion”). In exercising the regulatory requirement for continuing oversight of ongoing research, the IRB should periodically review the demo- graphic breakdown of the accrued sample by age, race, ethnicity, sex, and social deter- minants of health where applicable to the research. Along with these data, IRBs should require an explanation of any meaningful de- partures from the recruitment plan and re- quest, review, and approve proposed correc- tive action when indicated. Ongoing tracking of accrual by the IRB, as well as dialogue between the IRB and investigator, commu- nicates the importance of diversity, promotes transparency with regard to progress or lack of progress, provides a measure of account- ability, and, ultimately, will change behavior. IRB requirements with regard to study demographics should be flexibly tailored to individual study purpose, phase, set- ting, and size. For example, for some re- search (e.g., phase 3 studies, comparative effectiveness research), an IRB may adopt the principle, as a rebuttable presumption, that a study sample should reflect the de- mographic makeup of the condition being studied or for whom the intervention is in- tended. Other studies, such as small explor- atory, proof-of-concept, early phase studies, or research that seeks to learn about spe- cific communities, would not be expected to be representative of those affected by the condition. Similarly, a local site in a multi- site study may be selected because it pro- poses to recruit a specific racial or ethnic group to diversify a larger study population. Equitable subject selection requires the balancing of inclusion and protection and, like all aspects of research with human par- ticipants, grounding in good science. When a study proposes to recruit a sample that is composed predominantly or solely of a racial, ethnic, or other minority, the IRB might reasonably ask why the selection of this sample is scientifically necessary, how the findings are generalizable, and whether an alternative recruitment strategy might yield a more diverse or less burdened, stig- matized, or disadvantaged population. Flexibly adapting requirements to spe- cific study types will encourage dialogue between investigators and the IRB. When an investigator faces particular challenges in the recruitment and retention of specific populations, the IRB could offer guidance or consultation on protocol revision. The IRB itself should be diverse in com- position, with membership and input re- flecting the demographic compositions of the communities and populations studied in the research it reviews through the use of ad hoc consultants and by appointing members with experience working with di- verse communities. However, a recent study showed that 87% of IRB members and 91% of IRB chairs were white (11). A diverse IRB will be better attuned to the experience and needs of participants and better able to offer input from the perspective of varied popu- lations. At a minimum, training in cultural competence and implicit bias should become part of required ethics education for all IRB members and staff. Finally, IRBs should de- velop expertise in providing concrete recom- mendations for investigators in methods and tools to achieve greater diversity (6). Impediments to inclusion of underrep- resented and underserved populations in research are numerous and complex. There are no specific regulatory mandates of the kind that typically drive accountability in clinical research. Institutional commitment to diversity is uneven, the research work- force itself is inadequately diverse, and re- sistance from the research community to any additional oversight is likely. Further, expertise in the engagement and study of hard-to-reach populations is variable and related infrastructure is limited. Finally, in the United States, some question whether Belmont or the Common Rule are appropri- ately applied to matters of social justice. Institutions should support, educate, and resource IRBs, investigators and their study teams, and others in research so that they can give necessary attention to diversity as a fundamental value in the ethical conduct of research. The application of diversity to re- search review is neither simple nor without risk, but we do not believe the requirement fundamentally differs from other compo- nents of IRB review. Overly prescriptive approaches by the IRB and REC, specific mandates, or the application of quotas to study samples will not serve the interests of science and would not be justifiable or pal- atable to the research community. Drawing attention to diversity and inclusion as a goal and setting reasonable expectations as a condition of study approval, however, will give rise to necessary discussion and col- laboration between IRBs and among inves- tigators and the evolution of best practices in the field. Of course, the obligation to pro- mote diversity in clinical research does not rest solely on the IRB or REC or the inves- tigators. Sponsors, regulators, research and academic institutions, funders, patients and patient advocates, and others must build capacity and infrastructure in what, in the end, must be a collaborative enterprise. As entities that hold investigators ac- countable, IRBs are themselves accountable to their ethical and regulatory mandates and ultimately to those who serve as partic- ipants in research. The duty of IRBs to view subject enrollment and retention beyond the lens of “protection,” to deliberate on the benefits and risks of greater inclusion, and to exercise their authority to promote diversity should be recognized and actively implemented as a matter of justice. j R E F E R E N C E S A N D N OT E S 1. D. B. Chastain et al., N. Engl. J. Med. 383, e59 (2020). 2. T. C. Knepper, H. L. McLeod, Nature 557, 157 (2018). 3. U.S. Food and Drug Administration (FDA), “2015-2019 drug trials snapshots summary report: Five-year summary and analysis of clinical trial participation and demographics” (FDA, 2020); www.fda.gov/ media/143592/download. 4. S. George, N. Duran, K. Norris, Am. J. Public Health 104, e16 (2014). 5. L. T. Clark et al., Curr. Probl. Cardiol. 44, 148 (2019). 6. B. E. Bierer et al., “Achieving diversity, inclusion, and equity in clinical research,” version 1.0 (Multi-Regional Clinical Trials Center of Brigham and Women’s Hospital and Harvard, 2020); https://mrctcenter.org/ diversity-in-clinical-trials/. 7. R. C. Warren, M. G. Shedlin, E. Alema-Mensah, C. Obasaju, D. A. Hodge Sr., Ethics Med. Public Health 10, 128 (2019). 8. The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, “The Belmont Report: Ethical principles and guidelines for the protection of human subjects of research” (U.S. Department of Health, Education, and Welfare, 1979); www.hhs.gov/ohrp/regulations-and-policy/belmont- report/read-the-belmont-report/index.html. 9. World Health Organization, Council for International Organizations of Medical Sciences (CIOMS), “International ethical guidelines for health-related research involving humans” (CIOMS, ed. 4, 2016); https://cioms.ch/wp-content/uploads/2017/01/WEB- CIOMS-EthicalGuidelines.pdf. 10. World Medical Association, “WMA declaration of Helsinki—Ethical principles for medical research involving human subjects,” 9 July 2018; www.wma.net/ policies-post/wma-declaration-of-helsinki-ethical- principles-for-medical-research-involving-human- subjects/. 11. S. H. Berry et al., “Profile of institutional review board characteristics prior to the 2019 implementation of the revised common rule” (RAND Coproration, 2019); www.rand.org/pubs/research_reports/RR2648.html. 12. T. Greenhalgh et al., Health Expect. 22, 785 (2019). 13. L. Gelinas et al., N. Engl. J. Med. 378, 766 (2018). 14. D. A. Vyas, L. G. Eisenstein, D. S. Jones, N. Engl. J. Med. 383, 874 (2020). AC K N OW L E D G M E N TS D.H.S. received consulting fees as a member of the Takeda Pharmaceuticals Bioethics Advisory Council. 10.1126/science.abf2170 “Equitable subject selection requires the balancing of inclusion and protection…” Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ Justice, diversity, and research ethics review David H. Strauss, Sarah A. White and Barbara E. Bierer DOI: 10.1126/science.abf2170 (6535), 1209-1211.371Science ARTICLE TOOLS http://science.sciencemag.org/content/371/6535/1209 REFERENCES http://science.sciencemag.org/content/371/6535/1209#BIBL This article cites 8 articles, 0 of which you can access for free PERMISSIONS http://www.sciencemag.org/help/reprints-and-permissions Terms of ServiceUse of this article is subject to the is a registered trademark of AAAS.ScienceScience, 1200 New York Avenue NW, Washington, DC 20005. The title (print ISSN 0036-8075; online ISSN 1095-9203) is published by the American Association for the Advancement ofScience Copyright © 2021, American Association for the Advancement of Science o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/content/371/6535/1209 http://science.sciencemag.org/content/371/6535/1209#BIBL http://www.sciencemag.org/help/reprints-and-permissions http://www.sciencemag.org/about/terms-service http://science.sciencemag.org/ 
work_fhnfsa6gwndu3cc567xzmolaei	----	Labor Market and Access to Justice HAL Id: halshs-01634209 https://halshs.archives-ouvertes.fr/halshs-01634209 Submitted on 14 Nov 2017 HAL is a multi-disciplinary open access archive for the deposit and dissemination of sci- entific research documents, whether they are pub- lished or not. The documents may come from teaching and research institutions in France or abroad, or from public or private research centers. L’archive ouverte pluridisciplinaire HAL, est destinée au dépôt et à la diffusion de documents scientifiques de niveau recherche, publiés ou non, émanant des établissements d’enseignement et de recherche français ou étrangers, des laboratoires publics ou privés. Labor Market and Access to Justice Romain Espinosa, Claudine Desrieux, Marc Ferracci To cite this version: Romain Espinosa, Claudine Desrieux, Marc Ferracci. Labor Market and Access to Justice. Interna- tional Review of Law and Economics, Elsevier, 2018, 54, pp.1-16. �10.1016/j.irle.2017.09.008�. �halshs- 01634209� https://halshs.archives-ouvertes.fr/halshs-01634209 https://hal.archives-ouvertes.fr Labor Market & Access to Justice Romain Espinosa∗, Claudine Desrieux†and Marc Ferracci‡ September 2017 Abstract In 2008, the French government enacted a reform that reduced the number of labor courts by one quarter. This led to significant changes in access to labor courts for many workers and employers who had to travel further to proceed with conflict litigation. We use this reform to evaluate how access to labor courts affects the labor market. Our empirical approach mainly re- lies on regression-adjusted conditional differences-in-differences estimations. We find that cities that experienced an increase in the distance to their associated labor court suffered from a lower growth rate of job creation (-4 percentage points), job destruction (-4.6 pp) and firm creation (-6.3 pp) between 2007 and 2012 compared to unaffected cities. We find opposite but insignif- icant effects for cities that experienced a fall in the distance to the labor court. These results emphasize the central role of labor courts for the good functioning of the labor market. JEL codes: K31, K41. Keywords: Job creation; job destruction; firm creation; labor courts; judicial reform. 1 Introduction The rationalization of the court system has become a popular proposal in order to cut public expenditure in European countries. The 2011 Vilnius declaration, issued by the European Network of Councils for the Judiciary, urged European countries to reform their judicial framework and, more specifically, to rationalize and reorganize their court system. As a consequence, many European countries reduced the number of their courts, such as France and Portugal in 2008, Croatia in 2010, ∗CRED (TEPP), University Paris II, 12 Place du Panthéon, 75005 Paris, France. E-mail: romain.espinosa@u- paris2.fr †Corresponding Author. CRED (TEPP), University Paris II, 12 Place du Panthéon, 75005 Paris, France. Tel.: +33(0)44418991. E-mail: claudine.desrieux@u-paris2.fr ‡CRED (TEPP), University Paris II, 12 Place du Panthéon, 75005 Paris, France., & LIEPP Sciences Po, 27 rue saint-guillaumme, 75007 PARIS, France, & CREST. E-mail: marc.ferracci@ensae.fr 1 2 Italy in 2011, and Belgium and the Netherlands in 2013. Similar reforms have been implemented or debated in Norway, Sweden and Germany. The costs and benefits associated with these reforms are usually difficult to establish. On the one side, public decision-makers hope to cut public expenditure by reducing the number of public facilities and public employees. On the other hand, these reforms entail reorganizational costs, and are likely to hinder access to justice as the geographical distance between courts and litigants increases. Institutions, and especially judicial institutions, are known to be key determinants of economic and financial outcomes (Acemoglu and Johnson (2005)). Reducing the effective access to justice services can therefore potentially inflict great damage on economic activity, therefore making the reforms less attractive. In this paper, we consider the 2008 French reform that closed almost one quarter of labor courts. The purpose of this reduction was to cut public expenditure. The number of labor courts dropped from 271 to 210, although the number of judges remained constant. Some courts increased their levels of activity with a wider geographical jurisdiction. However, the reform sparked off great debate, both before and after its implementation. Opponents feared that some litigants would be prevented from going to court, were the distance to their new local court to rise (Sénat (2012)).1 The evaluations of the global costs and benefits of the reform are still being discussed (Ministère de la Justice (2011); Sénat (2012); Cour des comptes (2015)). Given the challenge many European countries currently face with respect to employment, we here propose to evaluate the impact of this reform on the labor market. We use panel data on labor-market conditions at the city level to estimate the effects of the removal of labor courts. After the reform, areas that were previously under the jurisdiction of the removed courts were reallocated to unaffected courts. The reform thus changed the distance between some cities and their associated labor courts. The distance rose for many cities, and fell in some others. This situation allows us to establish how geographical access to courts affects job creation, job destruction, unemployment and firm creation. Our main empirical challenge is to separate the causal impact of the reform from a possible selection effect reflecting the government’s choice of which courts to remove (Espinosa, Desrieux and Wan, 2017). We address this in two ways. First, we run panel regressions using a differences- in-differences approach and assess the validity of the Common Trend Assumption. Second, we rely on matching methods to increase the comparability of the cities that were affected and unaffected by the reform, and run conditional differences-in-differences estimations. We find strong evidence for a negative effect of labor-court removal on the labor market when the reform increased the distance to the labor court. The growth rate between 2007 and 2012 in job creation was 4 percentage points lower for cities with a rise in distance compared to unaffected cities; the analogous figures for job destruction and firm creation are 4.6 and 6.3 percentage points respectively. The labor market has thus become less fluid and less dynamic. We find the opposite results for cities which experienced a fall in the distance to their labor court following the reform, although the effects are not statistically significant. This is the first piece of academic research to document the effect of the rationalization of the judiciary on economic activity. It provides public decision-makers with empirical information 1See also the debates reported in newspapers, such as that in Le Monde dated 13/7/2012: http: //www.lemonde.fr/societe/article/2012/07/13/la-reforme-de-la-carte-judiciaire-une-occasion- manquee-selon-la-commission-des-lois-du-senat_1733397_3224.html. http://www.lemonde.fr/societe/article/2012/07/13/la-reforme-de-la-carte-judiciaire-une-occasion-manquee-selon-la-commission-des-lois-du-senat_1733397_3224.html http://www.lemonde.fr/societe/article/2012/07/13/la-reforme-de-la-carte-judiciaire-une-occasion-manquee-selon-la-commission-des-lois-du-senat_1733397_3224.html http://www.lemonde.fr/societe/article/2012/07/13/la-reforme-de-la-carte-judiciaire-une-occasion-manquee-selon-la-commission-des-lois-du-senat_1733397_3224.html 3 to better anticipate the impact of similar reforms in other countries. Our results call for careful reflection regarding these reforms, as justice accessibility is shown to affect economic outcomes. In the light of the French experience, the reduction in the number of labor courts has made the labor market less flexible. The remainder of the paper is structured as follows. Section 2 relates our work to the previous economic literature. Section 3 presents the French reform and its economic and institutional context. Section 4 then describes our data, and the empirical analysis appears in Section 5. Last, Section 6 discusses our results and concludes. 2 Literature The empirical literature on the impact of the judiciary on economic activity has continued to grow over the years. From the seminal contributions of Djankov et al. (2003) and Acemoglu and Johnson (2005), the role and design of judicial institutions have been analyzed to better understand their economic effects and provide practical recommendations for public decision-makers. For instance, Chemin (2009) considers a reform carried out by the Pakistani government in 2002 to provide judges with more training. The results show that judges took care of a quarter more cases and the entry rate of new firms increased by one half due to the reform. Using Indian data, Chemin (2012) shows that reforms in the organization of the judiciary to speed up the resolution of civil suits led to fewer breaches of contract, encouraged investment, and facilitated access to finance. More related to court organization, Visaria (2009) and Von Lilienfeld-Toal et al. (2012) analyze the introduction of debt-recovery tribunals in India to speed up debt-recovery claims. They show that this reform reduced delinquency for the average loan and lowered the interest rates charged on larger loans, holding borrower quality constant. The reform reduced credit access for small borrowers, and expanded it for wealthy borrowers. These papers have mainly exploited spatial variations in reform implementation in order to identify its effects. Our paper is related to the above work by investigating how changes in the judiciary feed through to economic outcomes. However, we differ in a number of ways. First, we focus on a reduction in the number of courts, while the above work focused on changes in procedural rules or the creation of new courts. Governments and international organizations (World Bank (2011); Sénat (2012); ENCJ (2012)) recommend the rationalization of courts, yet there is little empirical evaluation of the judicial map. Second, we rely on French data, while the previous work has used data from de- veloping countries. Since many developed countries are debating whether to reduce the number of courts, the evaluation of a reform in a developed country seems apposite. Third, we focus on labor- market outcomes, which are currently one of the biggest challenges faced by public decision-makers. Last, our empirical strategy relies on differences-in-differences and matching regressions instead of spatial variation, as the reform was implemented over the whole territory at the same time but did not affect all cities. This is a common phenomenon, so that our methodological techniques can be replicated in further work. To date, legal scholars (Gomes (2007); Mak (2008); Van Djik and Horatius (2013)) and interna- tional institutions have expressed concern about access to courts and their geographical allocation. These topics have however received less attention in the economic literature. Chappe and Obidzinski 4 (2014) model how the distance to court affects both the demand for litigation and the probability of accidents via the level of care chosen by individuals. When the probability of accidents depends on the level of care chosen by the parties, increased distance to court may bring about higher levels of care: parties want to avoid accidents that lead to potentially costly litigation. Espinosa et al. (2017) empirically analyze how the 2008 French reform that reduced the number of labor courts by almost a quarter affected the demand for litigation and average case duration in the remaining courts. Case duration rose, and the demand for litigation fell more significantly in areas where courts had to deal with a higher level of new claims coming from the removed courts. We here go one step further to determine whether the reform influenced the labor market. By changing the distance to labor courts, the reform may have changed employers’ decisions to hire and fire employees or create new firms. To a lesser extent, our paper is also related to the literature on firing costs. Changing access to courts can be perceived as a change in litigation costs, and so firing costs, for the parties concerned. Most work suggests that higher firing costs reduce employment. For instance, Kugler and Pica (2008) use Italian panel data to consider the impact of a reform increasing unjust dismissal costs for businesses with fewer than 15 employees, while not changing these costs for larger businesses. The higher dismissal costs reduced job creation and destruction in small relative to large firms, especially in sectors with greater employment volatility. They also find some evidence that the reform reduced firm entry rates and employment adjustments, but had no effect on exit rates.2 Similar results have been replicated in different institutional environments (Kugler and Saint-Paul (2004), Hernanz et al. (2005), Behaghel et al. (2008)).3 In a different set-up, Gianfreda and Vallanti (2015) investigate the effect of the duration of labor litigation on the composition of employment. They find that longer litigation increases job creation for women and young people in both temporary and permanent jobs, while it produces a switch from permanent to temporary jobs for workers in the middle age range. The closest paper to ours is Fraisse et al. (2014), who analyze the French judicial process and its effect on the labor market. They use lawyer density as a proxy for judicial fees, and find that greater density leads to more litigation. This increased filing rate, and thus increased firing costs, brings about a large fall in employment fluctuations, especially for shrinking or exiting firms. However, it also leads to a small positive effect on net employment growth. We depart from this work by using a different identification strategy to measure the impact of litigation costs on employment decisions, namely the 2008 reform of the judicial map of labor courts. 3 The institutional context 3.1 The French labor market According to the French National Statistical Institute (INSEE), 25.5 million people in France were working in 2015.4 About three out of four jobs are in the service sector, and almost nine out of 2Other work has shown that the proportion of firms with under 15 employees was reduced after the reform (Garibaldi et al. (2003); Schivardi and Torrini (2008)). 3Two other contributions, Bauer et al. (2007) and von Below and Thoursie (2010), suggest that lower firing costs that may be applied to small firms have no significant impact on job creation and job destruction. 4The employment rate of people between 15 and 64 years of age is at the European Union average, i.e. around 64%. 5 ten workers are salaried. In this respect, proper enforcement of labor contracts is a real concern for French workers. More precisely, in 2015, 85.6% of these salaried workers held an open-ended contract (permanent/regular/long-term jobs, called contrats à durée indéterminée: CDI), and 13.5% had a fixed-term contract (temporary/short-term job). The good functioning of the labor market then reflects the appropriate regulation of the contractual employment relationship. As for many European countries, France suffers from a high level of unemployment (10% of the labor force according to the ILO definition, i.e. 2.9 million people). Regional disparities are large: some cities have unemployment rates over 33% while for others this figure is below 8%. In addition, 554,000 firms were created in France in 2016. Around 40% of these were “auto- entrepreneurs”, i.e. firms with a special status (enacted in 2009) for individual activity with limited sales revenue (self-employment). The other creations were public limited-liability companies (34%) and individual enterprises other than “auto-entrepreneurs” (26%).5 Overall, there are 2.42 million firms in France (excluding the self-employed) and 86% of these are small, employing fewer than 10 employees.6 By enforcing labor contracts, labor courts are key institutions for employment protection. Ac- cording to the OECD indicators, employment protection legislation (EPL) in France is fairly high: on a scale from zero (fewest restrictions) to six (most restrictions), the overall EPL indicator for France is 2.38, whereas the OECD average is 2.04.7 One side effect of this stringent EPL is “to produce a large amount of legal procedures related to labor disputes” (Le Barbanchon and Malherbet (2013)). Those disputes are brought to the French labor courts, called “Conseils des prud’hommes”. 3.2 French Labor Courts Labor courts are first-level tribunals,8 dealing with individual disputes affecting labor relationships in the private sector only (e.g. the validity of employment contracts, canceling dismissals, monetary compensation and the level of severance payments).9 There are currently 210 courts spread out all over France, each of which has jurisdiction over a certain geographical area determined by the law. The territorial jurisdiction for a claim is determined by the location of the establishment in which the work takes place and, if the work is not carried out in an establishment, by the residence of the employee. Each court is divided into five sections by activity (agriculture, commerce, industry, executives and diverse activities). The judges in labor courts are not professional but are rather elected representatives (on a parity basis in each section) of employees and employers.10 5Source: https://www.insee.fr/fr/statistiques/2562977 (Last Access: April 2017). 6Source: https://www.insee.fr/fr/statistiques/1379753#consulter (Last Access: April 2017). 7These figures relate to the indicator “Strictness of employment protection - individual and collective dismissals (regular contracts)” and come from the OECD website: http://stats.oecd.org/Index.aspx?DataSetCode=EPL_R (Last access: October 2015). Note that the indicator for the strictness of employment protection regarding temporary contracts was 3.63 for France in 2013, and 1.72 on average in OECD countries. 8Appeals are brought before the “Cour d’Appel” (“Chambre sociale”), and appeals against the “cour d’appel”’s decisions are lodged with the “Cour de cassation” (“Chambre sociale”). 9These courts only deal with individual disputes, as disputes affecting collective labor relationships (such as strikes) are dealt with by ordinary civil courts (“Tribunal de grande instance”). However, if people individually challenge their dismissal that is part of a collective dismissal, they do so in the labor courts. 10The last election was held in 2008. From 2018, the nomination conditions of the lay judges will change, according to the law No.2014 − 1528 of December 18th 2014. https://www.insee.fr/fr/statistiques/2562977 https://www.insee.fr/fr/statistiques/1379753#consulter http://stats.oecd.org/Index.aspx?DataSetCode=EPL_R 6 Between 2004 and 2013, around 200,000 cases were brought to labor courts each year in France (Guilloneau and Serverin (2015)). Cases suffer from long delays and take about 12 months to be resolved, whereas civil and commercial courts make decisions in half the time (respectively 5.4 and 5.8 months on average). Labor courts mainly deal with dismissals. In 2013, 8 out of 10 plaintiffs’ claims asserted the breach of their employment contract (Guilloneau and Serverin (2015)), with 76% of claims contesting dismissals for personal reasons.11 Since July 13th 1973, firms have to provide a real and serious cause of termination (“cause réelle et sérieuse”) to dismiss a worker. The French Labor Code does not provide any definition of real and serious causes, nor a list of situations considered as such. The content and scope of this notion has instead been defined by French case law, leading to many difficulties in interpretation that help explain the large number of litigated cases. 3.3 Overview of the 2008 Reform The reform to reduce the number of French courts was discussed and implemented in 2008. This reform aimed to (i) reduce the gap between demographics and the allocation of courts in the country, and (ii) rationalize the court network.12 In 2015, the total cost of this reform was evaluated at 413Me, and the savings on administrative expenditures at 9.1Me per year (Cour des comptes (2015)).13 Before the reform, there were 1,206 courts in France, of which 271 were first-level labor courts. Access to courts was very unequal: some Départements14 had up to 14 labor courts, while others had only one (Sénat (2012)). The reform was enacted by decree n0 2008-514 of May 29th 2008, and removed 62 labor courts, i.e. over 20% of the 271 initial labor courts. One court was created, so that the total number of labor courts fell to 210 after the reform. The judicial map was redrawn: areas with removed courts were reassigned to the other remaining labor courts. This reform was introduced on December 3rd 2008.15 There were two main criteria for removal. First, public authorities were willing to maintain at least one labor court per “Département”.16 Second, public decision-makers primarily targeted low-activity courts (fewer than 500 new cases each year). Appendix 1 shows the judicial map of French labor courts before and after the reform. 11Around 30% of dismissals are challenged in court (Tresor-Eco (2014)), and one out of four dismissals for personal reasons is brought to court. Pursuant to Article L. 1233-3 of the French Labor Code, a dismissal can only be considered as economically grounded if it is based on a reason unrelated to the employee and caused by economic difficulties or technical changes. On the contrary, dismissals for personal reasons may reflect disciplinary problems (e.g. refusal to follow work instructions) or other case-to-case issues (professional inability or repeated errors, for instance). 12The last general reform regarding the number of courts in France dated back to 1958. Another smaller reform targeting only labor courts was implemented in 1992: 11 labor courts were removed. 13These figures come from the institution in charge of evaluating the public organizations and public services in France (the Cour des Comptes). They cover the entire reform. Note that this reform concerned not only labor courts but also civil and commercial courts. Overall, 341 courts were removed, of which 62 were labor courts. 14Départements are French administrative subdivisions of the territory. Metropolitan France is made up of 95 Départements that are themselves divided up into “cantons” that serve as constituencies for the election of the members of the representative assembly in each department. Each labor court covers a number of “cantons” defined by the law (Decree No. 2008-514 of May 29th 2008 and decree No. 2014-899 of August 18th 2014.) 15The judges in removed labor courts were reallocated to other courts. Some 114 civil servants were working in removed labor courts: most of them were reallocated to other jurisdictions, with 26 positions being removed between 2008 and 2010 (Sénat (2012)). 16The exact criterion was to keep one labor court per “Département”, and one in the geographical area of each civil court. These two geographical areas are more or less the same. 7 The reduction of the number of courts led to a redefinition of the jurisdiction of some remaining courts. Following decree No. 2008-514, we distinguish between four types of courts: • Courts that were removed at the end of 2008 (removed courts); • Courts that took on the claims of the removed courts after 2008 (receiving courts). The jurisdiction of these courts was extended at the end of 2008 to cover the geographical areas of the removed courts. All future and already-opened claims from a removed court were transferred to one and only one receiving court within the same Département; • Courts that could not be removed during the reform because they were the unique court of their Département before 2008 (non-treatable courts); and • Courts that were not affected by the reform but that could have been selected (unaffected courts). 3.4 Potential impacts of the reform The reform may affect job creation and destruction on the labor market by changing the cost of litigation to challenge dismissals. We briefly discuss here the different channels via which this reform may operate. First, courts were more concentrated after the reform. The distance to court increased for some parties, and case delays may also rise as more cases are brought to courts whose geographical jurisdiction has been widened. Both lead to higher litigation costs. This may affect the employees’ decision to open claims. Anticipating this, employers could predict lower firing costs as the likelihood of going to court falls. This could increase job destruction and creation on the labor market. However, the reverse can also come about: firing costs also increase for employers in the case of litigation, especially for small and medium-sized firms, which can make them more reluctant to hire and fire. Overall, the net theoretical effect of the reform on job creation and destruction is difficult to determine. There are also other effects. If litigation costs increase, the parties’ incentives to settle before going to court will rise. However, this can also change the required settlement amount as the outside option in case of settlement failure is more costly. Here again, the net effect on the pre- court settlement (and ultimately on firing costs) is ambiguous. The nature of claims sent to court may also be affected by the reform. As litigation costs increase, pre-court settlements may become more attractive for "simple" cases (those whose probability to win or lose at court is easy to predict). More complex claims can continue to be sent to court. They may require a number of hearings to be decided, which makes the delays at court longer.17 This will raise litigation costs for the parties. More broadly, business creation (or destruction) can also be affected: if fewer jobs are opened, individuals may have a greater incentive to open their own business. 17The procedure for most claims is as follows. First, there is the “conciliation” stage: parties are invited to find a settled solution to their conflict. If there is no agreement they go to a ruling panel, comprising two employer lay-judges and two employee lay-judges. If the ruling panel does not make the decision (split votes inside the ruling panel, difficulties in interpreting the law etc.), then a professional judge is added to the jury (in another hearing) to decide the vote. 8 This short discussion illustrates that it is difficult to determine the final impact of the reform on the labor market. We require empirical analysis to identify the consequences of court access on employment. 4 Data 4.1 Information and units of observation We construct our dataset from information at the city and court levels. We first collect annual data on court activity from the website of the French Ministry of Justice, including average case duration, the number of new cases, the plaintiffs’ winning rate, and the départage rate.18 Second, we collect information on the economic and demographic dynamics of French metropolitan municipalities between 2006 (two years prior to the reform) and 2012 (four years after the reform) from two French administrative sources (the Pôle Emploi and INSEE). Data on economic activity include annual information on job creation, job destruction, unemployment, and the creation of new firms. Socio-economic variables cover population characteristics (size, population of working age, and socio- economic categories). Third, we retrieve information on the courts affected by the reform from the decree that implemented it.19 Last, we obtain the correspondence between each municipality and its associated labor court from the Ministry of Justice, and we developed a web-scraping script (Javascript) to compute the driving distance between the two.20 4.2 Descriptive Statistics Using the distinction between removed, receiving, unaffected and non-treatable courts in Section 3.3, we define four categories of cities: • Cities whose labor court was removed and that were assigned to a new labor court (removed- treated cities); • Cities whose labor court has expanded its geographical jurisdiction (receiving-treated cities); • Cities whose labor court was potentially removable but was not removed (unaffected cities); and • Cities that were precluded from treatment as there was only one labor court prior to the reform in the Département (non-treatable cities). Table 1 shows the summary statistics in 2007 of our set of variables for these four categories. As can be seen, groups are relatively heterogeneous. Removed-treated cities were the least-populated, their working-age groups were among the smallest, and they had the shortest distance to the labor court. Their labor courts were very different from the other courts: they dealt with far fewer cases and 18Départage is a special procedure in French labor courts in which a professional judge assists the lay judges in charge when they are not able to reach a majority decision. It is associated with longer delays 19Decree No. 2008-514 of May 29th 2008. 20The script was executed in June 2015. It generated individual requests to Google Maps about the driving distance between the city at stake and the municipality where the labor court is located. 9 had low départage rates and shorter delays. These findings are consistent with the previous results in Espinosa et al. (2017) that the government targeted low-activity courts in high-unemployment areas when deciding to remove courts. On the contrary, receiving-treated cities were more similar to the untreated cities: they are comparable in terms of population, the creation of new firms, and are more similar (but still statistically different) in terms of court activity and the distance to the labor court. Regarding labor-market conditions, cities whose distance to the labor court was changed by the reform had statistically different market conditions, with lower unemployment, less job destruction and creation and fewer new firms. This is not surprising given that these cities were significantly smaller than the cities which were not affected by the reform. To compare these subsamples, we normalize these 2007 outcomes to 100 for all cities and focus on growth rates compared to this benchmark for the remainder of the paper. Figure 1 shows the evolution of these normalized values over time. Overall, we see an increase in job destruction and unemployment, and less job creation and fewer new firms between 2006 and 2012. The global deterioration in the labor market reflects the 2008 financial crisis that greatly affected France, and whose long-term effects were still being felt in 2012. The large fall in the number of new firms between 2008 and 2009 mainly comes from a 2009 reform that created a simplified legal status for the self-employed (auto-entrepreneurs). Many people starting a business used this new status instead of creating a new firm (see Section 3.1).21 For each of the four outcomes, removed-treated and untreated cities have similar trends over the years. Cities experiencing a change in the distance to their labor court had a smaller rise in job destruction and a sharper fall in job creation compared to cities that were not targeted by the reform. Moreover, entrepreneurs appear to have created fewer firms in the areas affected by the reform compared to those in unaffected areas. On the contrary, unemployment does not seem to be related to the change in distance to the labor court. Last, Figure 2 illustrates the distribution of the changes in distances after the reform for removal- treated cities. Workers in most of the “removed-treated cities” had to travel 25 kilometers further on average to get to their labor court. Also the change in distance is negative for some workers, so that the new labor court is closer than the older removed court. This can occur case when individuals work in cities located at the frontier of a zone. We then have the interesting situation of an exogenous shock (the reform) that rendered the distance to court either shorter, longer or unchanged. 21In other words, we focus here on the creation of firms other than self-employment. Since the creation of self- employment status is free of charge, many were opened but without a real professional activity (or the activity was abandoned a few weeks later). Including self-employment would not then paint a realistic picture of professional occupations. 10 Figure 1: The evolution of labor-market conditions by type of city (scores normalized to 100 in 2007). 1 0 0 1 0 5 1 1 0 1 1 5 1 2 0 2006 2008 2010 2012 Year Job Destructions Removed Not treated 8 0 9 0 1 0 0 1 1 0 2006 2008 2010 2012 Year Job Creations 1 0 0 1 1 0 1 2 0 1 3 0 2006 2008 2010 2012 Year Unemployed workers 4 0 6 0 8 0 1 0 0 1 2 0 2006 2008 2010 2012 Year New Enterprises 5 Empirical Analysis We wish to assess the effect of the removal of labor courts on city-level economic activity. As cities were treated in different ways, we propose to estimate two kinds of effects: first the average treatment on the treated (ATT), i.e. the reform’s average effect on cities where the labor court was removed, and second the effect conditional on the change in distance to the labor court. Estimation Method The evaluation of public policies in non-randomized experiments is usually carried out either by propensity-score matching (PSM) or differences-in-differences (DiD) estima- tion. These methods estimate the average reaction of treated units to a particular treatment. The two techniques differ, however, in their assumptions about reaction functions and treatment assignment. The main assumption behind DiD is that treated and non-treated units would have had similar trends were the treated units not to have been treated (the Common Trend Assumption, CTA). They further assume that treatment does not produce any general-equilibrium effects (the Stable Unit 11 Figure 2: The distribution of changes in distance after the reform for removed cities. −50 0 50 100 Density of changes in distance Treatment Value Assumption, SUTVA). If these two assumptions hold, DiD estimation successfully assesses the treatment effect by comparing the change over time between the treated and non-treated units once the treatment is introduced. Alternatively, PSM estimation relies on two assumptions. First, the Conditional Independence Assumption (CIA) requires that a treated unit would have had the same outcome as non-treated units were it not to have been treated, conditional on the observables. This assumption ensures that the outcomes of similar untreated units can be used as counterfactuals for the treated units. DiD estimation makes a stronger assumption since they assume that both treated and non-treated units have the same reaction function (un)conditional on the observables (depending on whether the DiD are regression-adjusted). The second assumption, called the Common Support Assumption, states that units used to estimate the ATT should all have a positive probability of being treated and untreated. Regarding the 2008 reform, Espinosa et al. (2017) have shown that the removal decisions were not random.22 Nevertheless, the graphical discussion of the outcome variables in the previous section suggests that the CTA is likely to hold: the changes between 2006 and 2007 were similar in the treated and control groups. We thus proceed in two steps. We first estimate a DiD model including the treatment effect together with covariates that might also affect the outcome considered (regression adjustment: see Rosenbaum and Rubin (1983); Morgan and Harding (2006); Marcus (2014)). Given this first set of results, we discuss the likelihood of the CTA. Second, we use matching methods on the trends of the outcomes to generate control and treated samples that had common trends prior to the reform. 22Removed courts dealt with fewer cases and were closer to other labor courts. In Appendix 3, we present a few elements showing that it was indeed the case, and, more importantly, that these decisions were independent from the labor market situation. 12 We show that the CTA is more likely to hold once the correction is applied, and then discuss the new set of results. 5.1 Differences-in-Differences 5.1.1 Method We first exploit the panel structure of the data to estimate the reform’s effects in a differences- in-differences framework with regression adjustment. To estimate the ATT we use the following specification on the sample including cities that could have been affected by the reform and cities that were affected by the reform. The general specification is: yit = βXit + µt + αi + ∑ s6=2007 φs(Di ×1s=t) + uit (1) where X is the set of covariates discussed in the descriptive statistics,23 µt is the set of year fixed- effects, αi is the set of city fixed-effects, and uit is a random term. The variable Di is 1 for removed treated cities and 0 for non-treated cities (excluding non-treatable courts).24 The set of coefficients φ = {φ2006,φ2008,φ2009,φ2010,φ2011,φ2012} represents the ATT for each year. The reform was dis- cussed, voted and ratified in 2008. We deal with anticipation effects by taking 2007 as the reference year. An insignificant estimate of φ2006 implies that the treated and untreated cities had similar trends between 2006 and 2007, making the CTA more likely to hold. The outcomes yit considered here are the normalized scores of job creation, job destruction, unemployment and new firm cre- ation introduced in Section 4.2. Given the normalization, the marginal effects are the differences in growth rates between the treated and non-treated cities between 2007 and year t. Second, we explore the reform’s effect conditional on the change in distance to the new labor court. To do so, we estimate the above model for two subsets of treated cities: those for which the distance to the labor court rose (φI) and those for which it fell (φD). 5.1.2 Results Table 2 in the Appendix shows the estimated coefficients from equation 1. Cities that were af- fected by the reform had significantly lower job destruction, job creation and creation of new firms. However, this first estimation also shows a significantly higher trend of firm creation in treated cities prior to the reform (φ2006 > 0). This casts some doubt on the validity of the CTA for firm creation. On the one hand, it might be that the estimated negative coefficients associated with the reform after 2008 underestimate the impact: treated cities benefited from a higher trend in firm creation that was so strongly affected that it turned negative after the reform. On the other hand, it is possible that the effect is overestimated: the boom in firm creation between 2006 and 23We exclude the duration of cases at the court level since this is missing in 2008. The results including this variable are qualitatively equivalent and are presented as a robustness check. 24We change the composition of the control group by including the non-treatable cities as a robustness check: see below. 13 2007 would have potentially been offset by a negative trend after 2007, even in the absence of reform. Second, we estimate our econometric model separately for cities that experienced rises and falls in distance to the labor court . The results appear in Tables 3 and 4 respectively, and are depicted in Figures 3 and 4. A number of comments can be made in the light of this new set of estimates. For cities with a rise in distance to the labor court, we have similar but stronger effects compared to the average effect over the entire set of treated cities: job creation, job destruction and new firm creation all fall significantly compared to cities that were unaffected by the reform. Job destruction between 2007 and 2012 was about 4 percentage points (pp) lower in cities with an increased distance to the labor court; the analogous figures for job creation and the creation of new firms are 4.6 pp and 6.3 pp respectively. In other words, labor-market functioning there was significantly degraded by the reform. Employers were less likely to hire new employees, fire existing employees and create new firms. The overall effect on unemployment is not statistically significant, but the coefficient is positive. For cities with a fall in the distance to the labor court, the results are opposite but insignificant (i.e. higher job destruction and creation). The lack of significance might reflect two technical considerations, as Figure 2 shows. First, only relatively few cities experienced a fall in distance (108) compared to the number with a rise (1,093), which reduces statistical power. Second, the average fall in distance is relatively small (-11.3 km) compared to the average increase in distance (+25.7 km). The smaller sample size and weaker treatment are likely behind the lack of significance for cities with a fall in distance. Robustness We explore the sensitivity of our findings to changes in the control group and esti- mation method. We first re-estimate the above specifications including the untreatable cities in the control group. The results in Tables A1 to A3 in the Online Appendix are similar. Second, we reconsider the above specifications for the two types of treated cities using a multilevel mixed effects model. We introduce random effects at the city and court × year level (φc(i),t). The vector of covariates Xit is decomposed into covariates that are defined at the city level (X1,it) and those that are defined at the court level (X2,c(i)t) The multilevel model is: yit = βX1,it + µt + αi + φc(i),t + ∑ s 6=2007 φs(Di ×1s=t) + uit (2) αi = γ0 + ei φc(i),t = λX2,c(i)t + �c(i),t where λ includes an intercept, uit is a random term at the city × year level, ei a random term at the city level, and �c(i),t a random term at the court × year level. The estimates from this model for the two separate samples (e.g. rising or falling distance) appear in Tables A4 and A5 in the Online Appendix and are similar to those shown previously, i.e. a significant fall in job destruction, job creation and new firms in cities that had a rise in distance to the labor court, and insignificant rises in job destruction and creation for cities with a smaller distance. 14 CTA Two variables may be suspected of violating the Common Trend Assumption in the above regressions. First, the number of new firms seems to have grown faster between 2006 and 2007 in treated compared to control cities (Table 2). This effect is mainly due to cities whose distance to the labor court increased (Table 3). Second, unemployment rose significantly more in cities where the distance to the labor court fell compared to the control group (Table 4). We now turn to matching methods to correct the control group sample and ensure the validity of the Common Trend Assumption. Figure 3: The marginal effects of the reform in cities that experienced a rise in the distance to the labor court. (Differences-in-differences) − 6 − 4 − 2 0 2 2006 2008 2010 2012 Year Job Destructions − 1 0 − 5 0 5 2006 2008 2010 2012 Year Job Creations − 2 0 2 4 6 2006 2008 2010 2012 Year Unemployed Workers − 1 0 − 5 0 5 1 0 2006 2008 2010 2012 Year New Enterprises Note: The confidence intervals are at the 95% confidence level. The outcomes are normalized to 100 in 2007. These are regression-adjusted differences-in-differences, with standard errors clustered at the court level. 5.2 Conditional Differences-in-Differences The results above reveal the potential violation of CTA is for some of our outcomes. We therefore propose to correct our estimations by weighting the sample control to produce a sample of untreated cities with a pre-reform trend similar to that in treated cities. We first estimate a propensity score and then run the above regressions with the weights derived from a matching algorithm. 5.2.1 Matching To obtain similar pre-reform trends, we estimate the propensity score at the city level, i.e. the probability that a city have its associated court removed, based on the change between 2006 and 15 Figure 4: The marginal effects of the reform in cities that experienced a fall in the distance to the labor court. (Differences-in-differences) − 1 0 − 5 0 5 1 0 2006 2008 2010 2012 Year Job Destructions − 5 0 5 1 0 2006 2008 2010 2012 Year Job Creations − 1 0 − 5 0 5 1 0 2006 2008 2010 2012 Year Unemployed Workers − 2 0 − 1 0 0 1 0 2 0 2006 2008 2010 2012 Year New Enterprises Note: The confidence intervals are at the 95% confidence level. The outcomes are normalized to 100 in 2007. These are regression-adjusted differences-in-differences, with standard errors clustered at the court level. 2007 of the variables of interest (job creation, job destruction, unemployment and new firms).25 This matching on pre-reform trends aims to correct for any pre-trend differences in the DiD estimation. The removal decision is defined as: removal∗i = γ∆Yi + ui (3) where removal∗ is the latent variable associated with removal (which is set to 1 if the labor court associated with city i was removed and 0 if not). ∆Yi are the changes in labor-market outcomes between 2006 and 2007. We consider a number of matching algorithms to calculate weights based on the propensity score from the above equation. We consider in turn the Epanechnikov Kernel (EK), Gaussian Ker- nel (GK), and three-nearest neighbor algorithm (N3). We further use a fourth matching algorithm, the Covariate Balancing Propensity Score (CBPS) method. This technique relies on GMM estima- tion, and jointly estimates the propensity score and the associated weights so as to minimize the 25Matching is effected on the changes between 2006 and 2007 rather than between 2007 and 2008 to avoid potential anticipation effects, as the reform was discussed, voted and ratified in 2008. 16 ex-post bias between the treated and control groups. Comparing Matching Techniques Table 5 presents the average standardized bias (ASB) in each matching model. It also shows, for each estimation, the number of variables with standardized bias above 5%.26 We present two sets of results: on the left-hand side we show the ASB for the matching procedure in cities whose distance to the labor court rose; the right-hand side shows the analogous results for cities whose distance fell. First of all, the data reveal relatively little heterogeneity in the pre-reform trends: the ASB figure is below the 5% threshold for cities with increased distance and below the 10% threshold for cities with lower distance. We note however that half of the labor-market outcomes can be considered as biased, i.e. as having statistically different trends between 2006 and 2007. This justifies the use of matching to produce a control group with pre-reform trends similar to those in treated cities. Second, regarding the matching algorithm, the CBPS seems to be the most efficient way of reducing the ASB, with the values of the latter falling from 4.44 (resp. 7.25) in the unmatched sample to 0.06 (resp. 0.03) in the matched sample for cities with greater (lower) distance. The CBPS algorithm also minimizes the number of biased variables. The Nearest Neighbor Algorithm (N3) is the second-best matching algorithm in terms of the ASB. 5.2.2 The Results of Conditional Differences-in-differences We now estimate equation 1 with the weights from the CBPS matching algorithm.27 Given that the reform seems to have had different effects according to the change in distance (higher or lower), we estimate an ATT separately by type of affected city. Table 6 and Figure 5 display the results of this new estimation for cities with greater distance to the labor court. We first note a substantial improvement in the CTA, which now holds for all outcomes. Second, this new set of results confirms the original findings: cities with greater distance to the labor court suffered from lower job destruction (about -3.8 percentage points between 2007 and 2012), job creation (-5.8 pp) and new-firm creation (-5.4 pp). The results for cities with a fall in distance (Table 7 and Figure 6) reveal no significant effects of the reform. However, as in the DiD framework, the results by city type are mirror images of each other, with increased job creation and destruction in this second set of cities. Here again, insignificance likely reflects the less-pronounced treatment in these cities, and the relatively small number of cities with lower distance. Robustness We explore additional specifications to test the robustness of the above results. We first include non-treatable cities in the control group, i.e. cities whose labor court could not have been removed by the reform (Online Appendix, Tables A7 and A8). Second, we add the average duration of terminated cases in the associated labor court to the control variables (Online Appendix, Tables A9 and A10). For this latter, we exclude observations in 2008 for which the Ministry of 26The 5% threshold is usually used in the literature following the original paper of Heckman et al. (1998). 27We use the Stata xtreg package to estimate the model with weights, clustering observations at the pre-reform labor court level. 17 Justice data has many missing values.28 Third, we estimate the above models using the second-best matching algorithm in terms of bias reduction (N3: Online Appendix, Tables A11 and A12) Finally, we use the CBPS scores with the multilevel mixed-effects model with the same specification as in the previous section (Online Appendix, Tables A13 and A14). All of these alternative estimations yield the same results as in the main text above: the reform had no significant effect on cities with lower distance to the labor court, but a negative effect on job creation, job destruction and new-firm creation for cities where this distance rose. Figure 5: Marginal effects of the reform for cities that experienced a rise in the distance to the labor court. (Conditional Differences-in-differences) − 6 − 4 − 2 0 2 4 2006 2008 2010 2012 Year Job Destructions − 1 0 − 5 0 5 2006 2008 2010 2012 Year Job Creations − 2 0 2 4 6 2006 2008 2010 2012 Year Unemployed Workers − 1 0 − 5 0 5 1 0 2006 2008 2010 2012 Year New Enterprises Note: The confidence intervals are at the 95% confidence level. The outcomes are normalized to 100 in 2007. These are regression-adjusted differences-in-differences, with standard errors clustered at the court level. 5.3 Linear Impact of the Distance The above sections have presented the overall impact of the reform for two groups of cities: those that experienced an increased in distance to their labor courts, and those that experienced a fall. We now propose to estimate a linear specification, which seeks to estimate the impact of one additional kilometer to the associated labor court. We assume here that distance has a linear impact on the labor market outcomes, and that an increase and a fall of distance have similar but opposite effects. The associated specification is: 28We prefer to drop data in 2008 rather than only the missing values, as the estimations are carried out using weights, which are calculated using the entire sample. Dropping one year for every observation does not affect the validity of the matching process. 18 Figure 6: Marginal effects of the reform for cities that experienced a fall in the distance to the labor court. (Conditional Differences-in-differences) − 5 0 5 1 0 2006 2008 2010 2012 Year Job Destructions − 5 0 5 1 0 2006 2008 2010 2012 Year Job Creations − 2 0 2 4 6 8 2006 2008 2010 2012 Year Unemployed Workers − 2 0 − 1 0 0 1 0 2 0 2006 2008 2010 2012 Year New Enterprises Note: The confidence intervals are at the 95% confidence level. The outcomes are normalized to 100 in 2007. These are regression-adjusted differences-in-differences, with standard errors clustered at the court level. yit = βXit + µt + αi + ∑ s 6=2007 φs1s=t∆i + uit (4) where ∆i represents the change of distance to the associated labor court. It is equal to zero for non-treated cities for all periods, and to the change of the distance for treated cities due to the reform. This specification allows us to estimate the impact of one additional kilometer for each year after the reform. Results of this estimation are displayed in tables 8 (without matching correction) and 9 (with matching correction). First of all, one can observe that the coefficient associated to the reform change of distance is significant for New Enterprises in 2006 in absence of matching correction (table 8). This suggests that, prior to the reform, cities in the sample differ in the number of New Entreprises according to the future change in distance. The matching correction successfully erases these differences, and no effect is significant in 2006 once we use a weighted specification (table 9). Results with the matching correction are graphically displayed on figure 7. As one can see, an increase of distance to the labor court significantly decreases job destructions, job creations and, eventually, the firm creations in the subsequent years. For an increase of 10 kilometers, we 19 estimate that the growth rate between 2006 and 2012 was lower by 0.8 percentage points for job destructions, by 1.5 percentage points for job creations, and by 1.8 percentage points for new firms. Results including non-treatable cities, displayed in the Online Appendix (tables A15 and A16), lead to similar observations. Figure 7: Marginal effects of an increase of one kilometer in the distance to the labor court on affected cities. (Linear specification, with matching-correction) − .1 5 − .1 − .0 5 0 .0 5 .1 2006 2008 2010 2012 Year Job Destruction − .3 − .2 − .1 0 .1 2006 2008 2010 2012 Year Job Creation − .1 − .0 5 0 .0 5 .1 .1 5 2006 2008 2010 2012 Year Unemployment − .3 − .2 − .1 0 .1 .2 2006 2008 2010 2012 Year New Firms Note: The confidence intervals are at the 95% confidence level. The outcomes are normalized to 100 in 2007. Standard errors clustered at the court level. 5.4 Limitations Our empirical investigation attempted to address most of the challenges public-policy evaluations generally face. However, two main issues were not tackled here, as the necessary econometric tools have not yet been developed. First, we are aware that the estimation of the propensity score might produce measurement errors, which are not taken into account here. Abadie and Imbens (2016) show that propensity-score estimation affects the large-sample distribution of the matching estimator. Their contribution is however to date limited to the ATT without regression adjustment. Further developments (especially in regression adjustment and conditional DiD) are required to correct for the potential biases in our case. Second, the matching algorithm might generate a need for additional clustering between matched units. Abadie and Spiess (2016) derive results for the K-nearest neighbors matching technique without replacement. This is the simplest matching algorithm, as the clusters are exclusive, and we have no doubt that these results will be extended 20 to more complex matching algorithms in the coming years. 6 Conclusion and Discussion Public decision-makers usually face a trade-off between two (opposite) policy goals: limiting public expenditure and ensuring the good functioning of the labor market. In recent years, this dual optimization problem has received increasing attention, with rising concern about national debt and the sharp increase in unemployment in developed countries. In June 2016, the IMF stated: "[The risks of stagnation] are particularly worrisome for the euro area, given the high level of unemployment and public and private debt in some member countries".29 Public authorities have thus devoted particular attention to reductions in public expenditure that would have the smallest effect on the economy and, in particular, the labor market. One popular proposal among public decision-makers has been to rationalize public administra- tion in order to reduce its costs. A number of countries have thus sought to reduce their number of (labor) courts. However, the impact of such reforms on the labor market has received little attention from public authorities given the lack of associated empirical evidence. Our paper is the first piece of empirical analysis to assess the impact of labor-court access on the labor market. We do so by exploiting the 2008 French reform that removed one quarter of the labor courts in France. We distinguish between two types of cities that were affected by the reform: those with increased and reduced distance to the labor court. The estimation of (conditional) differences-in-differences reveals that greater distance is associated with worse-performing labor markets: lower job destruction (-4 percentage points), job creation (-4.6 pp) and new-firm creation (-6.3 pp) between 2006 and 2012 for cities with a greater distance compared to unaffected cities. We also find opposite-signed but insignificant effects in cities where the distance to the labor court fell (i.e. higher job destruction and creation). These results cast some doubt on the net benefit of such reforms. There are multiple effects on both public spending and economic activity. Labor courts are a key institution for the enforcement of labor contracts, and access to them affects economic behavior. Our results suggest that greater distance brings about higher costs. Our interpretation is that these latter can be particularly heavy for small-sized firms, which represent the majority of firms in France, as described in Section 3.1. Employers in these firms are particularly affected by the changes in litigation costs resulting from court accessibility. The regions that were affected by the reform already had weaker labor markets prior to the reform. Their economic network was mainly composed of smaller firms: these employers are particularly affected by the changes in litigation costs due to court access. The costs can be both direct (transportation costs) and indirect (opportunity cost of going to court). As the presence of both parties is mandatory at certain stages of the procedure (even though the party can be represented for others) the repeated costs of greater distance might translate into a substantial burden for employers. Overall, our estimations show that the increased burden for both employees and employers leads to worse labor-market performance. 29https://www.imf.org/external/pubs/ft/fandd/2016/06/pdf/lin.pdf. https://www.imf.org/external/pubs/ft/fandd/2016/06/pdf/lin.pdf 21 Acknowledgements We are grateful to Pierre Cahuc, Laurent Davezies, Xavier d’Haultfoeuille and Francis Kramarz for discussions which led to improvements in the paper. We also thank participants at the CREST seminar, the Law & Economics Workshop (Florence, 2016), the LAGV conference (Aix-en-Provence, 2016), the EEA conference (Geneva, 2016), the AFSE conference (Nancy, 2016) and the TEPP winter school (Aussois, 2016). 22 References Abadie, A. and Imbens, G. W. (2016). Matching on the Estimated Propensity Score. Econometrica, 84(2):781–807. Abadie, A. and Spiess, J. (2016). Robust Post-Matching Inference. Working Paper. Acemoglu, D. and Johnson, S. (2005). Unbundling Institutions. Journal of Political Economy, 113(5):949–995. Bauer, T. K., Bender, S., and Bonin, H. (2007). Dismissal Protection and Worker Flows in Small Establishments. Economica, 74(296):804–821. Behaghel, L., Crépon, B., and Sédillot, B. (2008). The perverse effects of partial employment protection reform: The case of French older workers. Journal of Public Economics, 92(3-4):696– 721. Chappe, N. and Obidzinski, M. (2014). The Impact of the Number of Courts on the Demand for Trials. International Review of Law and Economics, 37:121–125. Chemin, M. (2009). The impact of the judiciary on entrepreneurship: Evaluation of Pakistan’s Access to Justice Programme. Journal of Public Economics, 93(1-2):114–125. Chemin, M. (2012). Does Court Speed Shape Economic Activity? Evidence from a Court Reform in India. Journal of Law, Economics and Organization, 28(3):460–485. Cour des comptes (2015). Rapport public annuel 2015. Technical report. Djankov, S., La Porta, R., López-de Silanes, F., and Shleifer, A. (2003). Courts. The Quarterly Journal of Economics, 118(2):453–517. ENCJ (2012). Judicial Reform in Europe, 2011-2012. Technical report. Espinosa, R., Desrieux, C., and Wan, H. (2017). Fewer Courts, less Justice? Evidence from the 2008 French Reform of Labour Courts. European Journal of Law and Economics, forthcoming. Fraisse, H., Kramarz, F., and Prost, C. (2014). Labor disputes and labor flows. Industrial and Labor Relations Review, forthcoming. Garibaldi, P., Borgarello, A., and Pacelli, L. (2003). Employment protection legislation and the size of firms: A close look at the Italian case . Giornale degli Economisti e Annali di Economia, 63(1):33–68. Gianfreda, G. and Vallanti, G. (2015). Labour Courts delays and the composition of employment: Is labour encouraged or endangered by institutions? Working papers luisslab, Dipartimento di Economia e Finanza, LUISS Guido Carli. Gomes, C. (2007). The Transformation of the Portuguese Judicial Organization: between Efficiency and Democracy. Utrecht Law Review, 3(1):101–111. Guilloneau, M. and Serverin, E. (2015). Les litiges individuels du travail de 2004 à 2013: des actions moins nombreuses mais toujours plus contentieuses. Technical Report 135, Infostat, Ministère de la Justice. 23 Heckman, J. J., Ichimura, H., and Todd, P. (1998). Matching As An Econometric Evaluation Estimator. Review of Economic Studies, 65:261–294. Hernanz, V., Jimeno, J., and Kugler, A. (2005). Employment consequences of restrictive permanent contracts: Evidence from Spanish labour market reforms. CEPR Discussion Paper No. 3724. Kugler, A. and Pica, G. (2008). Effects of employment protection on worker and job flows: Evidence from the 1990 Italian reform. Labour Economics, 15(1):78–95. Kugler, A. D. and Saint-Paul, G. (2004). How Do Firing Costs Affect Worker Flows in a World with Adverse Selection? Journal of Labor Economics, 22(3):553–584. Le Barbanchon, T. and Malherbet, F. (2013). An anatomy of the French labor market. Technical Report Employment Working paper 142, International Labour Office. Mak, E. (2008). Balancing Territoriality and Functionality; Specialization as a Tool for Reforming Jurisdiction in the Netherlands, France and Germany. International Journal for Court Adminis- tration, 1(2):2–9. Marcus, J. (2014). Does Job Loss Make You Smoke and Gain Weight? Economica, 81(324):626–648. Ministère de la Justice (2011). La réforme de la carte Judiciaire. Technical report, L’Actu Justice. Morgan, S. L. and Harding, D. J. (2006). Matching estimators of causal effects: Prospects and pitfalls in theory and practice. Sociological Methods & Research, 35(1):3–60. Rosenbaum, P. and Rubin, D. (1983). The Central Role of the Propensity Score in Observational Studies for Causal Effects. Biometrika, 70:41–55. Schivardi, F. and Torrini, R. (2008). Identifying the effects of firing restrictions through size- contingent differences in regulation. Labour Economics, 15(3):482–511. Sénat (2012). La réforme de la carte judiciaire: une occasion manquée. Technical report, Rap- port d’Information de Mme Nicole Borvo Cohen-Seat et M. Yves Détraigne, fait au nom de la commission des lois. Tresor-Eco (2014). Le traitement des litiges en droit du travail : constats et perspectives economiques. Technical Report 137, Lettre du Minsitere de l’Economie, de l’Industrie et du Numerique. Van Djik, F. and Horatius, D. (2013). Judiciary in Times of Scarcity: Retrenchment and Reform. International Journal for Court Administration, 5(1):15–24. Visaria, S. (2009). Legal Reform and Loan Repayment: The Microeconomic Impact of Debt Recov- ery Tribunals in India. American Economic Journal: Applied Economics, 1(3):59–81. von Below, D. and Thoursie, P. S. (2010). Last in, first out?: Estimating the effect of seniority rules in Sweden. Labour Economics, 17(6):987–997. Von Lilienfeld-Toal, U., Mookherjee, D., and Visaria, S. (2012). The Distributive Impact of Re- forms in Credit Enforcement: Evidence From Indian Debt Recovery Tribunals. Econometrica, 80(2):497–558. World Bank (2011). Improving the Performance of Justice Institutions. Technical report. 24 Appendix 1: Maps of Judicial System Figure 8: French courts before the reform and removals during the reform 25 Figure 9: French courts after the reform 26 Appendix 2: Tables Table 1: Summary statistics in 2007. Variable Label Non-treatable Removed Receiving Untreated unemployed Number of unemployed workers 290.044 157.265*** 262.401 252.625 (966.2) (304.6) (1054.34) (863.3) jobDest Number of job destructions (registration for unemployment benefits) 383.916 213.514*** 372.36 348.375 (1250.4) (412.6) (1626.2) (1278.6) jobCrea Number of unemployed workers who left unemployment benefits after finding a job 107.877 75.392*** 115.219 107.769 (293.1) (122.7) (415.8) (304.2) newEntr Number of firms created per year 24.321 12.739*** 23.581 23.775 (75.49) ( 22.70) (103.80) (81.34) distance Distance between the city and its labor court (km) 28.986 17.178*** 22.005*** 28.618 (23.082) (13.215) (21.791) (54.593) pop Population (log) 7.728 7.614*** 7.768 7.803 (.95) (.783) (.926) (.95) popAge Working age population (log) 7.253 7.159*** 7.326 7.355 (.962) (.779) (.931) (.955) propCS1 Proportion of individuals in the 1st social category .02 .015 .012*** .014 (.023) (.019) (.017) (.019) propCS2 Proportion of individuals in the 2nd social category .039 .036*** .037*** .038 (.016) (.017) (.016) (.017) propCS3 Proportion of individuals in the 3rd social category .05 .054*** .072*** .068 (.027) (.03) (.043) (.047) propCS4 Proportion of individuals in the 4th social category .124 .13*** .145*** .14 (.041) (.04) (.044) (.043) propCS5 Proportion of individuals in the 5th social category .169 .162*** .168** .166 (.033) (.035) (.035) (.036) propCS6 Proportion of individuals in the 6th social category .158 .179*** .152*** .158 (.051) (.054) (.052) (.056) propCS7 Proportion of individuals in the 7th social category .298 .274*** .262** .266 (.081) (.062) (.069) (.074) propCS8 Proportion of individuals in the 8th social category .142 .15 .153** .15 (.042) (.042) (.042) (.041) newAff� Number of new claims per year 991.7 196.2*** 1266*** 926.556 (1108.0) (72.3) (1268) (987.413) succRate� Success rate for plaintiffs .712 .74*** .722*** .714 (.092) (.128) (.081) (.074) concRate� Conciliation rate .107 .127*** .118*** .108 (.052) (.054) (.047) (.051) depRate� Rate of départage 16.59 8.28*** 13.94 14.067 (9.624) (10.353) (8.769) (10.205) durAff� Average duration of terminated cases in months (log) 10.443 8.355*** 11.099** 10.94 (2.676) (2.378) (3.059) (3.058) Means and standard deviations (in parentheses). Variables with � are reported at the labor-court level. Stars indicate that the sample mean is statistically different from the untreated cities’ sample mean at the 10% (*), 5% (**) and 1% (***) levels. 28 Table 2: Estimation of the difference between cities not affected by the reform and cities whose labor court was removed (Differences-in-differences, regression-adjusted, excluding non-treatable cities). Job Destruction Job Creation Unemployment New Firms φ2006 -0.554 0.705 -0.0908 -5.252** (1.031) (1.345) (0.533) (2.445) φ2008 -0.766 -1.250 0.0920 1.433 (0.782) (1.152) (0.435) (2.684) φ2009 -0.444 -3.456** 0.126 -3.481 (1.462) (1.504) (0.829) (2.403) φ2010 -2.076 -4.020** 0.140 -3.357 (1.443) (1.862) (1.223) (2.268) φ2011 -2.661* -2.730 1.556 -5.236** (1.425) (2.061) (1.561) (2.049) φ2012 -3.536*** -3.879** 1.364 -5.771*** (1.222) (1.919) (1.589) (1.973) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 50,376 50,376 50,372 49,497 R-squared 0.255 0.151 0.341 0.279 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 29 Table 3: Estimation of the difference between cities not affected by the reform and cities that experienced a rise in the distance to the labor court (Differences-in-differences, regression-adjusted, excluding non-treatable cities). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.579 0.596 0.108 -5.547** (1.105) (1.356) (0.565) (2.624) φI,2008 -0.789 -1.723 -0.00714 1.181 (0.729) (1.163) (0.458) (2.855) φI,2009 -0.411 -4.187*** 0.0137 -3.976 (1.487) (1.538) (0.897) (2.429) φI,2010 -2.506* -4.781** 0.107 -4.021* (1.427) (1.957) (1.270) (2.298) φI,2011 -3.118** -3.319 1.576 -4.979** (1.349) (2.109) (1.625) (2.188) φI,2012 -3.952*** -4.651** 1.475 -6.323*** (1.200) (1.993) (1.646) (2.051) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 49,640 49,640 49,636 48,768 R-squared 0.255 0.152 0.340 0.279 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 30 Table 4: Estimation of the difference between cities not affected by the reform and cities that experienced a fall in the distance to the labor court (Differences-in-differences, regression-adjusted, excluding non-treatable cities). Job Destruction Job Creation Unemployment New Firms φD,2006 -0.271 1.603 -2.057** -2.375 (1.340) (2.488) (0.923) (6.703) φD,2008 -0.324 3.504 1.351 3.859 (2.451) (2.222) (1.107) (4.897) φD,2009 -1.282 4.058* 0.306 1.490 (2.542) (2.199) (1.637) (4.476) φD,2010 2.015 3.773 -0.343 3.033 (3.320) (3.825) (2.273) (5.659) φD,2011 1.746 3.238 0.592 -8.051* (4.530) (2.973) (3.116) (4.697) φD,2012 0.591 3.922 -0.463 -0.630 (3.303) (2.829) (3.000) (3.727) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 42,891 42,891 42,901 42,228 R-squared 0.267 0.138 0.348 0.278 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 31 Table 5: Diagnosis of the matching process: Average standardized bias and number of biased variables at 5% (excluding non-treatable cities). Increased Distance Reduced Distance Algorithm Average Bias №. Biased Var. Average Bias №. Biased Var. Before Matching 4.44 2 7.25 2 EK 2.82 0 7.28 2 GK 3.63 0 7.27 2 N3 1.28 0 4.92 2 CBPS 0.06 0 0.03 0 Table 6: Estimation of the difference between cities not affected by the reform and cities that expe- rienced a rise in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.0423 -0.206 -0.330 0.354 (1.015) (1.326) (0.526) (2.525) φI,2008 -0.349 -2.461** -0.172 4.300 (0.727) (1.149) (0.440) (2.809) φI,2009 0.145 -5.085*** -0.0715 -3.089 (1.474) (1.626) (1.057) (2.538) φI,2010 -2.102 -5.848*** 0.192 -2.825 (1.392) (2.033) (1.426) (2.327) φI,2011 -2.845** -4.582** 1.765 -4.116* (1.316) (2.120) (1.786) (2.255) φI,2012 -3.834*** -5.792*** 1.299 -5.420** (1.177) (2.058) (1.829) (2.264) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 48,752 48,752 48,755 48,754 R-squared 0.234 0.190 0.330 0.290 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 32 Table 7: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a fall in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities). Job Destruction Job Creation Unemployment New Firms φD,2006 0.641 0.00567 -0.151 -3.459 (1.290) (2.343) (0.900) (6.968) φD,2008 -1.097 2.990 1.296 4.696 (2.305) (2.206) (1.170) (4.812) φD,2009 -0.314 1.644 2.554** 0.0869 (2.293) (2.373) (1.234) (5.558) φD,2010 2.958 1.755 1.978 2.969 (3.072) (3.366) (1.963) (6.231) φD,2011 2.661 1.296 2.881 -8.300 (4.172) (3.150) (2.535) (5.249) φD,2012 0.622 2.636 2.833 0.421 (3.136) (2.715) (2.615) (4.030) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 42,226 42,226 42,229 42,228 R-squared 0.272 0.130 0.381 0.282 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 33 Table 8: Linear estimation of the effect of a change of distance. (No matching-correction, excluding non-treatable cities.) Job Destruction Job Creation Unemployment New Firms φ2006 -0.0129 0.0426 0.0183 -0.145** (0.0361) (0.0382) (0.0195) (0.0708) φ2008 -0.0283 -0.0666** -0.00349 -0.0245 (0.0203) (0.0331) (0.0128) (0.0843) φ2009 -0.0131 -0.141*** -0.00997 -0.123* (0.0436) (0.0420) (0.0232) (0.0667) φ2010 -0.0973*** -0.140*** -0.0129 -0.138* (0.0291) (0.0532) (0.0302) (0.0760) φ2011 -0.0976*** -0.103* 0.0292 -0.123** (0.0335) (0.0568) (0.0495) (0.0607) φ2012 -0.0950*** -0.123** 0.0473 -0.219*** (0.0333) (0.0520) (0.0455) (0.0462) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 50,371 50,371 50,367 49,492 R-squared 0.255 0.151 0.341 0.279 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 34 Table 9: Linear estimation of the effect of a change of distance. (With matching-correction, exclud- ing non-treatable cities.) Job Destruction Job Creation Unemployment New Firms φ2006 -0.00765 0.00242 0.0151 -0.0287 (0.0323) (0.0330) (0.0185) (0.0663) φ2008 -0.0139 -0.111*** -0.0129 0.00129 (0.0204) (0.0272) (0.00988) (0.0844) φ2009 -0.00485 -0.178*** -0.0206 -0.0939 (0.0444) (0.0358) (0.0233) (0.0654) φ2010 -0.0937*** -0.169*** -0.0202 -0.111 (0.0253) (0.0506) (0.0271) (0.0772) φ2011 -0.0925*** -0.147*** 0.0192 -0.0751 (0.0319) (0.0494) (0.0498) (0.0568) φ2012 -0.0807** -0.151*** 0.0429 -0.188*** (0.0316) (0.0479) (0.0468) (0.0425) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 49,476 49,476 49,479 49,478 R-squared 0.236 0.185 0.333 0.289 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 35 Appendix 3: Decision to remove courts The decision to remove courts in 2008 mainly resulted from the government’s will to reduce public expenditures. In French history, reductions of the number of courts, and more broadly amendments of the judicial map, turn to be rare events. Indeed, prior to 2008, the last significant reform dated back to 1958. In 2008, the government had therefore a unique opportunity to substantially amend the judicial map. During the preliminary discussions, the government declared that the courts to be removed would be chosen in the light of their level of activity. We propose here a few elements to see whether (i) the government effectively based its choice on the court’s activity level, and (ii) whether some dimensions of the labor market under scrutiny affected its decision. To do so, we consider data of 2007 at the court level. The dependent variable is a dummy variable equal to 1 if the court was removed and to 0 otherwise. The independent variables include variables about the court (the number of new cases, the average delay to obtain a decision, the average winning rate for the plaintiffs, the average conciliation rate, and the average so-called dé- partage rate which accounts for a procedure specific to French labor courts), and average values of the job market outcomes considered in our study (job destructions, job creations, new enterprises, unemployed workers).30 Table 10 shows the results of probit estimation of the probability of a court to be removed. It excludes labor courts that were unique in their département, since the government refused to remove such courts. Sample A includes removed courts and courts that were not affected by the reform. Sample B also includes courts that took on the competency of removed courts. As one can see, the court’s activity, i.e. the number of new cases, has been the main criterion to determine the removal of courts. We observe indeed that this only criterion explains almost 47% of the removal decision. Furthermore, it appears that the government did not consider issues related to the labor market conditions when deciding on the reform: none of the coefficients associated to these variables is significant in the regression. 30Note that the averages of the outcome variables are weighted by the population in working age. 36 Table 10: Probit regressions of the probability of being removed. (Z-values in parentheses.) (1) (2) (3) (4) Sample A Sample B Sample A Sample B New Cases -0.0097*** -0.0093*** -0091*** -0.0092*** (-5.16) (-5.34) (-5.94) (-6.13) Winning Rate 1.100 1.527 -0.89 -1.33 Conciliation Rate 1.428 1.107 -0.57 -0.47 Départage Rate 0.0058 0.0113 -0.43 -0.86 Job destructions -0.0010 -0.0017 (-0.57) (-1.02) Job creations 0.0011 0.0020 -0.3 -0.55 New Enterprises 0.0031 0.0029 -0.25 -0.26 Unemployed Workers 0.0007 0.0012 -0.55 -1.01 Average Duration -0.1326** -0.1337** (-2.14) (-2.23) Observations 142 189 142 189 Pseudo R2 0.5051 0.4996 0.4669 0.4609 1 Online Appendix Labor Market & Access to Justice Romain Espinosa, Claudine Desrieux and Marc Ferracci Differences-in-Differences Table A1: Estimation of the difference between cities not affected by the reform and cities whose labor court was removed (Differences-in-differences, regression-adjusted, excluding non-treatable cities). Job Destruction Job Creation Unemployment New Firms φ2006 -0.691 0.626 -0.109 -5.707** (1.040) (1.315) (0.529) (2.403) φ2008 -0.610 -1.114 0.149 0.626 (0.782) (1.129) (0.422) (2.682) φ2009 0.107 -3.465** 0.184 -3.210 (1.453) (1.494) (0.829) (2.389) φ2010 -1.786 -3.698** 0.206 -3.054 (1.437) (1.836) (1.216) (2.243) φ2011 -2.485* -2.468 1.677 -4.493** (1.411) (2.035) (1.539) (2.033) φ2012 -3.463*** -3.668* 1.530 -5.394*** (1.210) (1.880) (1.562) (1.972) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 57,124 57,121 57,120 56,147 R-squared 0.243 0.155 0.340 0.279 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 2 Table A2: Estimation of the difference between cities not affected by the reform and cities that experienced a rise in the distance to the labor court (Differences-in-differences, regression-adjusted, including non-treatable cities). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.710 0.521 0.0904 -5.991** (0.525) (0.695) (0.872) (0.0216) φI,2008 -0.632 -1.580 0.0515 0.375 (0.387) (0.168) (0.908) (0.895) φI,2009 0.142 -4.201*** 0.0706 -3.706 (0.923) (0.00642) (0.937) (0.127) φI,2010 -2.215 -4.461** 0.172 -3.718 (0.120) (0.0220) (0.892) (0.103) φI,2011 -2.937** -3.056 1.697 -4.227* (0.0281) (0.144) (0.291) (0.0532) φI,2012 -3.874*** -4.442** 1.640 -5.934*** (0.00122) (0.0239) (0.312) (0.00419) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 56,388 56,385 56,384 55,418 R-squared 0.243 0.157 0.340 0.279 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 3 Table A3: Estimation of the difference between cities not affected by the reform and cities that experienced a fall in the distance to the labor court (Differences-in-differences, regression-adjusted, including non-treatable cities). Job Destruction Job Creation Unemployment New Firms φD,2006 -0.482 1.494 -2.078** -2.944 (0.726) (0.544) (0.0250) (0.660) φD,2008 -0.158 3.600 1.373 3.101 (0.949) (0.104) (0.213) (0.534) φD,2009 -0.910 3.942* 0.405 1.735 (0.723) (0.0763) (0.806) (0.697) φD,2010 2.116 3.932 -0.241 3.359 (0.536) (0.295) (0.916) (0.557) φD,2011 1.693 3.312 0.729 -7.386 (0.717) (0.266) (0.815) (0.118) φD,2012 0.470 3.952 -0.257 -0.378 (0.891) (0.159) (0.932) (0.921) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 49,639 49,636 49,649 48,878 R-squared 0.252 0.145 0.347 0.278 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 4 Table A4: Estimation of the difference between cities not affected by the reform and cities that experienced a rise in the distance to the labor court (Differences-in-differences, regression-adjusted, excluding non-treatable cities, Multilevel mixed effects). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.443 1.788 -0.218 -5.569** (0.979) (1.385) (0.884) (2.260) φI,2008 -0.522 -0.950 -1.185 1.428 (0.992) (1.402) (0.896) (2.292) φI,2009 -1.065 -4.647*** -0.644 -2.079 (0.965) (1.364) (0.870) (2.220) φI,2010 -2.778*** -4.839*** -0.821 -2.695 (0.964) (1.364) (0.870) (2.219) φI,2011 -2.916*** -4.535*** 0.552 -3.648 (0.964) (1.363) (0.869) (2.219) φI,2012 -4.338*** -5.749*** 0.248 -4.793** (0.965) (1.364) (0.870) (2.221) City RE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Court × Year RE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 49,640 49,640 49,636 48,768 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. 5 Table A5: Estimation of the difference between cities not affected by the reform and cities that experienced a fall in the distance to the labor court (Differences-in-differences, regression-adjusted, excluding non-treatable cities, Multilevel mixed effects). Job Destruction Job Creation Unemployment New Firms φD,2006 -0.375 2.255 -3.312 -1.943 (2.347) (3.297) (2.251) (6.220) φD,2008 -1.281 3.565 0.0155 4.167 (2.377) (3.341) (2.277) (6.287) φD,2009 -0.513 2.648 -0.665 2.159 (2.272) (3.190) (2.180) (6.033) φD,2010 1.473 5.370* -1.650 4.158 (2.270) (3.188) (2.179) (6.030) φD,2011 0.249 2.045 -0.967 -7.222 (2.271) (3.189) (2.180) (6.033) φD,2012 -0.823 4.029 -1.853 0.562 (2.271) (3.189) (2.180) (6.033) City RE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Court × Year RE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 42,891 42,891 42,901 42,228 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. 6 Conditional Differences-in-Differences Table A6: Diagnosis of the matching process: Average standardized bias and number of biased variables at 5% (including non-treatable cities). Increased Distance Reduced Distance Algorithm Average Bias №. Biased Var. Average Bias №. Biased Var. Before Matching 4.64 2 7.27 2 EK 2.89 0 7.28 2 GK 3.81 2 7.28 2 N3 0.74 0 5.33 2 CBPS 0.05 0 0.03 0 Table A7: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a rise in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, including non-treatable cities). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.0567 -0.218 -0.326 0.382 (1.018) (1.301) (0.521) (2.495) φI,2008 -0.131 -2.357** -0.129 3.771 (0.722) (1.124) (0.428) (2.797) φI,2009 0.889 -4.932*** -0.0434 -2.812 (1.465) (1.632) (1.071) (2.530) φI,2010 -1.615 -5.333*** 0.239 -2.493 (1.381) (2.016) (1.431) (2.302) φI,2011 -2.490* -4.132* 1.833 -3.329 (1.301) (2.109) (1.778) (2.243) φI,2012 -3.571*** -5.389*** 1.426 -5.031** (1.172) (2.039) (1.814) (2.260) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 55,395 55,394 55,398 55,397 R-squared 0.227 0.193 0.329 0.291 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 7 Table A8: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a fall in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, including non-treatable cities). Job Destruction Job Creation Unemployment New Firms φD,2006 0.608 -0.00404 -0.154 -3.451 (1.294) (2.318) (0.890) (6.915) φD,2008 -0.894 3.100 1.294 4.066 (2.298) (2.186) (1.160) (4.833) φD,2009 0.376 1.658 2.727** 0.444 (2.300) (2.411) (1.224) (5.610) φD,2010 3.346 2.186 2.121 3.357 (3.122) (3.278) (1.947) (6.283) φD,2011 2.888 1.622 3.070 -7.466 (4.237) (3.175) (2.500) (5.316) φD,2012 0.695 2.950 3.071 0.885 (3.194) (2.703) (2.576) (4.083) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 48,869 48,868 48,872 48,871 R-squared 0.266 0.133 0.380 0.282 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 8 Table A9: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a rise in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities, including delay in cases at the labor court). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.158 -0.226 -0.311 0.501 (1.002) (1.312) (0.520) (2.508) φI,2008 . . . . φI,2009 0.305 -5.340*** 0.263 -2.362 (1.501) (1.654) (1.169) (2.503) φI,2010 -1.943 -6.033*** 0.492 -2.043 (1.365) (2.030) (1.534) (2.386) φI,2011 -2.706** -4.770** 2.057 -3.400 (1.315) (2.211) (1.874) (2.293) φI,2012 -3.672*** -5.895*** 1.555 -4.783** (1.175) (2.048) (1.898) (2.212) Delay in cases Yes Yes Yes Yes City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 41,837 41,837 41,840 41,839 R-squared 0.230 0.215 0.332 0.264 Significance level: *** significant at the 1% level; ** significant at the 5% level; * signifi- cant at the 10% level. Robust standard errors are clustered at the court level. 9 Table A10: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a fall in the distance to their labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities, including delay in cases at the labor court). Job Destruction Job Creation Unemployment New Firms φD,2006 0.645 0.0157 -0.0756 -3.203 (1.305) (2.415) (0.917) (6.917) φD,2008 . . . . φD,2009 -0.183 0.642 2.945** 0.0520 (2.379) (2.809) (1.363) (6.062) φD,2010 3.270 0.835 2.293 3.124 (3.094) (3.275) (1.935) (6.209) φD,2011 3.121 0.395 3.231 -7.810 (4.242) (3.429) (2.582) (4.856) φD,2012 1.058 1.608 3.087 0.632 (3.076) (3.044) (2.595) (3.976) Delay in cases Yes Yes Yes Yes City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 36,197 36,197 36,200 36,199 R-squared 0.275 0.145 0.391 0.234 Significance level: *** significant at the 1% level; ** significant at the 5% level; * signifi- cant at the 10% level. Robust standard errors are clustered at the court level. 10 Table A11: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a rise in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities, 3-nearest neighbor matching algorithm). Job Destruction Job Creation Unemployment New Firms φI,2006 -0.340 -0.665 -0.159 0.989 (1.064) (1.448) (0.542) (2.796) φI,2008 -0.864 -2.254* 0.0661 4.751 (0.794) (1.232) (0.461) (3.230) φI,2009 -0.246 -4.952*** 0.279 -2.290 (1.526) (1.758) (1.096) (2.646) φI,2010 -2.518* -5.966*** 0.239 -2.053 (1.437) (2.085) (1.460) (2.380) φI,2011 -3.662*** -5.147** 1.677 -4.047* (1.383) (2.218) (1.829) (2.432) φI,2012 -4.225*** -6.560*** 1.025 -5.363** (1.256) (2.174) (1.901) (2.504) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 24,142 24,142 24,142 24,142 R-squared 0.237 0.192 0.340 0.294 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 11 Table A12: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a fall in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities, 3-nearest neighbor matching algorithm). Job Destruction Job Creation Unemployment New Firms φD,2006 0.318 -2.345 -0.472 -7.530 (1.766) (3.052) (0.976) (8.456) φD,2008 -1.216 3.284 1.206 -1.972 (2.643) (2.628) (1.328) (7.785) φD,2009 -1.871 1.649 2.883** -6.002 (2.860) (2.954) (1.409) (7.263) φD,2010 1.208 1.834 1.768 -4.766 (3.599) (3.932) (2.132) (8.135) φD,2011 1.251 0.288 1.104 -13.84* (4.756) (3.723) (2.647) (7.535) φD,2012 -0.639 1.072 0.840 -9.122 (3.954) (3.185) (2.874) (5.897) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 2,927 2,927 2,927 2,927 R-squared 0.292 0.142 0.429 0.254 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 12 Table A13: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a rise in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities, Multilevel mixed effects). Job Destruction Job Creation Unemployment New Firms φI,2006 0.482 0.460 -0.448 0.479 (0.888) (1.393) (0.602) (2.684) φI,2008 -0.0243 -2.233** -1.125** 4.586 (0.799) (1.114) (0.457) (2.877) φI,2009 -0.0778 -5.086*** -0.684 -0.637 (1.269) (1.310) (0.647) (2.049) φI,2010 -2.120* -5.739*** -0.747 -0.767 (1.278) (1.725) (1.098) (1.905) φI,2011 -2.600** -5.198*** 0.624 -1.975 (1.182) (1.778) (1.452) (1.787) φI,2012 -3.927*** -6.528*** -0.0754 -3.358** (1.148) (1.756) (1.537) (1.623) City RE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Court × Year RE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 48,752 48,752 48,755 48,754 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. 13 Table A14: Estimation of the difference between cities not affected by the reform and cities that ex- perienced a fall in the distance to the labor court (Conditional differences-in-differences, regression- adjusted, excluding non-treatable cities, Multilevel mixed effects). Job Destruction Job Creation Unemployment New Firms φD,2006 0.400 0.332 -1.540 -2.149 (1.407) (2.670) (1.677) (6.788) φD,2008 -0.695 3.195 -0.370 6.541 (2.217) (2.453) (1.083) (4.771) φD,2009 -1.422 0.717 -0.583 2.556 (2.405) (2.228) (1.229) (3.641) φD,2010 2.087 1.099 -1.639 5.029 (2.560) (3.843) (1.563) (5.236) φD,2011 1.635 0.749 -0.834 -6.513 (3.289) (2.857) (3.062) (4.504) φD,2012 0.111 2.078 -1.116 1.995 (2.431) (2.711) (3.026) (3.394) City RE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Court × Year RE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 42,226 42,226 42,229 42,228 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. 14 Table A15: Linear estimation of the effect of a change of distance. (No matching-correction, includ- ing non-treatable cities.) Job Destruction Job Creation Unemployment New Firms φ2006 -0.0155 0.0408 0.0177 -0.155** (0.0365) (0.0378) (0.0194) (0.0702) φ2008 -0.0249 -0.0629* -0.00174 -0.0419 (0.0201) (0.0326) (0.0127) (0.0839) φ2009 -0.000262 -0.142*** -0.00908 -0.120* (0.0428) (0.0421) (0.0232) (0.0660) φ2010 -0.0904*** -0.133** -0.0116 -0.134* (0.0290) (0.0528) (0.0302) (0.0751) φ2011 -0.0933*** -0.0967* 0.0323 -0.108* (0.0332) (0.0565) (0.0492) (0.0604) φ2012 -0.0942*** -0.119** 0.0510 -0.212*** (0.0330) (0.0515) (0.0452) (0.0459) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 57,119 57,116 57,115 56,142 R-squared 0.243 0.156 0.340 0.279 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. 15 Table A16: Linear estimation of the effect of a change of distance. (With matching-correction, including non-treatable cities.) Job Destruction Job Creation Unemployment New Firms φ2006 -0.00746 0.00247 0.0152 -0.0278 (0.0324) (0.0327) (0.0184) (0.0658) φ2008 -0.00998 -0.109*** -0.0118 -0.00818 (0.0202) (0.0269) (0.00969) (0.0840) φ2009 0.00737 -0.176*** -0.0206 -0.0907 (0.0435) (0.0358) (0.0234) (0.0647) φ2010 -0.0858*** -0.160*** -0.0197 -0.106 (0.0252) (0.0501) (0.0270) (0.0766) φ2011 -0.0868*** -0.140*** 0.0202 -0.0620 (0.0318) (0.0493) (0.0496) (0.0563) φ2012 -0.0772** -0.144*** 0.0448 -0.182*** (0.0314) (0.0478) (0.0466) (0.0421) City FE Yes Yes Yes Yes Year FE Yes Yes Yes Yes Covariates Yes Yes Yes Yes Observations 56,119 56,118 56,122 56,121 R-squared 0.229 0.188 0.332 0.290 Significance level: *** significant at the 1% level; ** significant at the 5% level; * significant at the 10% level. Robust standard errors are clustered at the court level. Introduction Literature The institutional context The French labor market French Labor Courts Overview of the 2008 Reform Potential impacts of the reform Data Information and units of observation Descriptive Statistics Empirical Analysis Differences-in-Differences Method Results Conditional Differences-in-Differences Matching The Results of Conditional Differences-in-differences Linear Impact of the Distance Limitations Conclusion and Discussion 
work_fjeze6dlafhpfhhbneu6hs3ku4	----	S074808141700011Xjra 33..39 ESSAY ROUNDTABLE god the judge and human justice randy beck Justice Thomas O. Marshall Chair of Constitutional Law, University of Georgia School of Law KEYWORDS: justice, mercy, retribution, punishment, reward The biblical authors often portray God as a royal judge who brings justice to a fallen creation. This portrayal analogizes God’s role in governing humanity to the role played by judges in human legal systems. The divine judge, like human judges, investigates and evaluates conduct, measuring human acts against applicable laws. Like human judges, he fashions punishments and rewards to accom- plish justice in light of the conduct disclosed. The recurring biblical portrayal of God as a judge invites reection on the relationship between divine and human justice: How far should the analogy between God and human judges be taken? Should judges “imitate God, in whose Seat they sit?”1 Or might the differences between God and human judges mean that some judgments are appropriate only for God to impose?2 This essay considers what insights divine justice might offer for human law. I begin by analyzing three biblical accounts of divine justice: Jesus’s story of the rich man and Lazarus, the punishment of King Uzziah for usurping priestly functions, and the reward bestowed on Jesus for resisting the devil’s temptations. In each account, God implements a sophisticated form of retributive justice, artistically applying the principle “as he has done it shall be done to him” (Leviticus 24:19).3 This biblical understanding of divine justice can help us understand and evaluate human legal systems. biblical portrayals of divine justice The Rich Man and Lazarus In Luke’s gospel, Jesus tells the story of the rich man and Lazarus (Luke 16:19–31). The narrative concerns a rich man who feasts daily. He routinely walks past a poor beggar named Lazarus but never stops to help. Jesus artistically describes how the rich man and Lazarus effectively trade places in the afterlife. As illustrated in the table below, the account reects a sustained parallelism between what the rich man does (or fails to do) in this life and what happens in the life to come: 1 Francis Bacon, Of Judicature, in FRANCIS BACON, THE ESSAYS 316, 320 (1625) (Scholars Press 1971). 2 Vladimir Soloviev, On the Death Penalty, in 2 THE TEACHINGS OF MODERN CHRISTIANITY ON LAW, POLITICS AND HUMAN NATURE 430 (John Witte, Jr. & Frank S. Alexander, eds., 2007). 3 Biblical quotations come from the English Standard Version. Journal of Law and Religion 32, no. 1 (2017): 33–39 © Center for the Study of Law and Religion at Emory University doi:10.1017/jlr.2017.11 journal of law and religion 33 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core This life The afterlife The rich man lives luxuriously. Lazarus rests in Abraham’s bosom. Lazarus is hungry and covered with sores. The rich man is thirsty and tormented by ame. Lazarus longs for crumbs from the rich man’s table. The rich man longs for drops of water from Lazarus’s nger. Lazarus begs, but the rich man fails to help. The rich man begs, but Lazarus cannot help. The rich man is presumably well known; Lazarus is overlooked. Lazarus has a name; the rich man’s name is never mentioned. The Mosaic “eye-for-an-eye” principle assumes a simple scenario in which one individual assaults another. In Jesus’s story, the rich man commits no act of violence. He hardly notices Lazarus. Does retributive justice apply to wrongful inaction? The Proverbs anticipated this question and offered a picture of retributive justice in circumstances like these: “Whoever closes his ear to the cry of the poor will himself call out and not be answered” (Proverbs 21:13). Jesus’s story offers an extended illustration of the proverb, clarifying how divine justice responds to indifference in the face of suffering. Uzziah and the Priests The author of Chronicles tells the story of Uzziah, who became king of Judah in place of his father (2 Chronicles 26). “[A]s long as he sought the LORD, God made him prosper.” As an old man, how- ever, Uzziah’s pride led to his downfall. Uzziah entered the temple to burn incense, where he was confronted by Azariah and a company of priests: “It is not for you, Uzziah, to burn incense to the LORD, but for the priests, the sons of Aaron, who are con- secrated to burn incense. Go out of the sanctuary, for you have done wrong, and it will bring you no honor from the LORD God.” Then Uzziah was angry. Now he had a censer in his hand to burn incense, and when he became angry with the priests, leprosy broke out on his forehead in the presence of the priests in the house of the LORD, by the altar of incense. And Azariah the chief priest and all the priests looked at him, and behold, he was leprous in his forehead! And they rushed him out quickly, and he himself hurried to go out, because the LORD had struck him. And King Uzziah was a leper to the day of his death, and being a leper lived in a separate house, for he was excluded from the house of the LORD. And Jotham his son was over the king’s household, governing the people of the land. (2 Chronicles 26:18b–21) From one perspective, we could say that Uzziah was unwilling to let God rule in God’s “house,” so the punishment made it impossible for Uzziah to rule in his own “house.”4 From a broader perspec- tive, however, Uzziah’s punishment reects the harm inicted on Israel’s communal life. Israel’s kings were to be descendants of David, from the tribe of Judah. Temple functions were reserved for priests from the tribe of Levi. By assigning the kingship and priesthood to different tribes, God implemented a form of separation of powers, ensuring a degree of partition between religion and politics. In his pride, Uzziah challenged this divided structure, seeking a place at the center of both political and religious life. Since Uzziah sought to usurp religious authority God had not given him, he was effectively deprived of the political authority God had given him. 4 Many thanks to Beth Beck for this observation. randy beck 34 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core Uzziah’s usurpation of priestly functions rested on an implicit claim that he was morally t to serve in the temple. Divine justice not only undermined the king’s objective, but also responded to the implied assertion. The authority of the high priest was represented by a gold plate worn on his forehead, engraved with the words “Holy to the LORD” (Exodus 28:36–38). In response to Uzziah’s misconduct, God gave the king leprosy, a sign of uncleanness, in the same location as the high priest’s inscription. Jesus’s Resistance to Temptation Discussions of “justice” often focus on punishment, but giving people what they deserve also involves rewards for meritorious conduct. As illustrated in the table below, Matthew’s gospel dis- plays this sort of divine justice, artistically linking Jesus’s virtuous conduct near the beginning of his public ministry, when he resists the devil’s temptations (Matthew 4:8–10), with the honors bestowed on Jesus as the gospel draws to a close (Matthew 28:16–20). Matthew 4:8–10 Matthew 28:16–20 The devil takes Jesus to a very high “mountain.” The disciples meet Jesus on a “mountain.” Jesus refuses to “worship” the devil. The disciples “worship” Jesus. The devil offers to “give” Jesus “all” the kingdoms of the world. Jesus says “all” authority in heaven and on earth has been “given” to him. These passages describe the rst and last times Jesus ascends a mountain in Matthew’s gospel, narrative details with structural signicance.5 The passages are linked by the theme of proper wor- ship. Jesus rejects the devil’s temptation based on the Deuteronomic principle that one must wor- ship God alone. The gospel subtly reveals Jesus’s divine identity when the disciples worship him at the end of the book. Comparison of the accounts also reveals parallelism between the inducement offered by Satan and the honor bestowed on Jesus after he triumphs over the cross. The devil offered to “give” Jesus “all” the kingdoms of the world and their glory. Because Jesus resisted temptation, God “gives” him “all” authority in heaven and on earth, a reward like, but greater than, the inducement offered by Satan. jesus and the lex talionis In the Sermon on the Mount from Matthew’s gospel, Jesus seems to call into question the talionic “eye-for-an-eye” principle from the law of Moses: You have heard that it was said, “An eye for an eye and a tooth for a tooth.” But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. (Matthew 5:38–41) 5 WARREN A. GAGE & STEPHEN P. CARPENTER, A LITERARY GUIDE TO THE LIFE OF CHRIST IN MATTHEW, MARK, AND LUKE-ACTS: HOW THE SYNOPTIC EVANGELISTS TELL THE STORY OF JESUS 21–24 (St. Andrews House 2014) (digital pub- lication through Logos Bible Software). god the judge and human justice journal of law and religion 35 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core This passage has led some Christians to conclude that “Jesus explicitly repudiated the lex talionis.”6 If Jesus in fact rejected the talionic principle, that could call into question the broader norm of retributive justice. Several other passages from the Sermon on the Mount, however, assume that God as judge enforces the demands of retributive justice. Consider a familiar petition from the Lord’s Prayer: “forgive us our debts, as we also have forgiven our debtors.” Jesus elaborates: “For if you forgive others their trespasses, your heavenly Father will also forgive you, but if you do not forgive others their trespasses, neither will your Father forgive your trespasses” (Matthew 6:14–15). Jesus’s teach- ing rests on a talionic understanding of divine justice; God treats people the same way they treat others. Another familiar passage makes a similar point: “Judge not, that you be not judged. For with the judgment you pronounce you will be judged, and with the measure you use it will be mea- sured to you” (Matthew 7:1–2). Retributive justice may also underlie a number of the Beatitudes. For instance, “Blessed are the merciful, for they shall receive mercy” seems perfectly retributive; the blessed are treated the same way they treat others (Matthew 5:7). Considering the context, then, we should read Jesus’s teaching concerning the talionic principle against a background assumption of divine retribution. In place of “[a]n eye for an eye and a tooth for a tooth” from the law of Moses, Jesus instructs “[d]o not resist the one who is evil,” offering three illustrations. Each illustration, on closer examination, involves a connection between the talionic principle and Jesus’s suggested response. If one person slaps another on the cheek, the talionic principle would call for a retaliatory slap on the aggressor’s cheek. When Jesus says “turn to him the other [cheek] also,” he urges the victim to accept the punishment the aggressor deserves. Similarly, if someone evil sues for a person’s tunic, the talionic response would be to demand the plaintiff’s garment in return. Instead, Jesus tells the victim to “let him have your cloak as well,” accepting the retributive punishment earned by the wrongdoer. The talionic response to being forced to walk a mile would be to force the aggressor to walk a mile in a different direction. Jesus instead asks the victim to “go with him two miles.” Jesus does not question the justice of retribution, but asks his followers to set aside the demands of justice or, more precisely, to fulll the demands of justice on behalf of those who wrong them. Jesus’s teaching here provides a picture of His own ministry as explained in other parts of the New Testament. Jesus’s death fullled the demands of justice on behalf of those who were his enemies (Romans 3:21–26, 5:6–10). We should not be surprised, then, that echoes of this passage reverberate through Matthew’s account of Jesus’s trial and execution. We see Jesus slapped on the face during his trial before the high priest (Matthew 26:67–68). We see him stripped of his garments by Roman soldiers (Matthew 27:31, 35). We see him forced to walk from Gethsemane to Caiaphas, then from Caiaphas to Pilate, and then from Pilate to Golgotha (Matthew 26:57, 27:2, 31). Jesus does not reject retributive justice in the Sermon on the Mount, but instead draws novel implications from the assumption of divine retribution. The talionic principle gives retributive jus- tice a backward looking focus. Jesus gives retributive justice a forward looking focus in the Golden Rule: “So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets” (Matthew 7:12). Christians are not to treat others the way others treated them in the past; instead they must treat others the way they would like to be treated in the future. 6 UNITED METHODIST CHURCH, BOOK OF RESOLUTIONS, 2004 (2004), resolution 246. randy beck 36 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core god’s justice and human justice Having examined biblical depictions of divine justice, we are now in a position to consider impli- cations for human law. We might analogize this exercise to the use economists make of the idea of perfect competition. A model of perfect competition assists in economic analysis because “the oper- ation of a purely competitive economy provides us with a standard, or norm, against which the efciency of the real-world economy can be compared and evaluated.”7 Similarly, we can describe perfect justice by reference to the characteristics of God as Judge and the relationship between acts and consequences in his judgments. These features of perfect justice can then help us evaluate human legal systems and identify shortcomings and limitations of human law. God’s Character as a Model for Human Judges Biblical narratives about divine justice rest on the foundation of God’s character. Attributes that make God an ideal judge can be used to evaluate human judges. King Jehoshaphat makes this logic explicit when he instructs the judges of Judah: “Consider what you do, for you judge not for man but for the LORD. He is with you in giving judgment. Now then, let the fear of the LORD be upon you. Be careful what you do, for there is no injustice with the LORD our God, or par- tiality or taking bribes” (2 Chronicles 19). God is just, so judges must be just. God is impartial, so they should be impartial. God will not take a bribe, so neither should they. Human Judges Lack God’s Knowledge and Power Although we want human judges to imitate God in certain respects, there are many ways in which human judges differ from God. These differences affect the reliability of human judgments and the capacity of human institutions to accomplish complete justice. Human judges lack God’s full knowledge of past and future events. They often base their legal conclusions on factual ndings later found to be inaccurate. God also differs from human judges with respect to the power and resources at his command. The limited power of human courts bounds the sorts of judgments they can impose and, hence, the objectives human justice can pursue. A biblical understanding of our moral obligations—perfect love of God and neighbor—compels a distinction between moral- ity and law. Human justice necessarily falls short of divine justice both in the range of obligations enforced and the accuracy of determinations concerning whether those obligations have been violated. Perfect Retribution and the Theory of Punishment How should governments decide what punishments to inict? Retributivists argue that offenders should be given the punishments they deserve. They suggest that viewing punishment as a means to an end, without reference to any notion of desert, could result in excessive punishments. Consequentialists argue that punishment should produce desirable consequences, such as deter- rence or incapacitation or reformation. A consistent theory of retribution, they believe, calls for the state to inict suffering on the morally culpable, even when no social good results. 7 CAMPBELL R. MCCONNELL & WILLIAM HENRY POPE, ECONOMICS: PRINCIPLES, PROBLEMS, AND POLICIES 137 (4th Canadian ed. 1987). god the judge and human justice journal of law and religion 37 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core Discussions between retributivists and consequentialists often reference the talionic principle, understood to embody a retributive theory of punishment. But while divine justice is retributive, it does not follow that Christians should side with retributivists over consequentialists in debates about human law. Our examination of biblical justice led to the conclusion that human government can enforce only a small subset of the obligations imposed by divine law. Human government pos- sesses limited capacity and resources, and must leave much wrongdoing unaddressed. In deciding how to direct the coercive efforts of government, plenty of room exists for consequentialist consid- erations, even if one believes in retribution as the ideal of justice. The Unsatisfactory Results of Proportionality Review The US Supreme Court has interpreted two provisions of the Constitution to require some degree of proportionality between an offense and the resulting punishment, the Eighth Amendment with respect to criminal sentencing8 and the Due Process Clause in connection with punitive damages.9 The Court’s proportionality jurisprudence will always be problematic. We can see the problem by comparing the Court’s attempts at proportionality analysis with the examples of biblical justice dis- cussed above. In the biblical accounts, the punishment was like the offense in some clearly discern- ible way. Our system of justice, however, relies on monetary penalties and imprisonment. These homogenized modes of punishment make it virtually impossible to determine whether the magni- tude of a penalty matches the gravity of the offense. Divine Justice as a Motive for Mercy Some retributivists consider mercy problematic, since clemency involves a departure from the requirements of justice. Saint Augustine addressed this question in a fascinating letter responding to an inquiry from a Roman judge. The provincial governor of Africa, Macedonius, asked why the clergy interceded on behalf of condemned prisoners. He suggested that the church implicated itself in criminal conduct by seeking to prevent just punishment. In response, Augustine offered several arguments for clerical intercession and judicial clemency. Of particular interest, Augustine contended a judge should extend mercy because the judge will one day be judged: “[Y]ou need the mercy which you grant to others.”10 In this respect, he suggested, the judge, the criminal, and the intercessor all stand on common ground: “we intercede, if not as criminals for criminals, at least as sinners for sinners, and, I think, with sinners.”11 Augustine’s letter to Macedonius suggests various limiting principles to cabin judicial clemency. Intercession was apparently limited to offenders who acknowledged their crimes and promised a change of behavior. He also recognized that for some offenders, mercy might do more harm than good. Moreover, he acknowledged that judicial severity can serve important purposes, includ- ing deterrence.12 8 See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991). 9 See, e.g., State Farm Mutual Automotive Insurance Co. v. Campbell, 538 U.S. 408 (2003). 10 Letter from Augustine to Macedonius (Letter 153), in OLIVER O’DONOVAN & JOAN LOCKWOOD O’DONOVAN, FROM IRENAEUS TO GROTIUS: A SOURCEBOOK IN CHRISTIAN POLITICAL THOUGHT 119, 125 (1999). 11 Id. 12 Id. at 127 (“There is good . . . in your severity which works to secure our tranquility, and there is good in our intercession which works to restrain your severity.”). randy beck 38 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core conclusion Biblical portrayals of God as judge turn out to hold numerous lessons for human law. Not least is the need for humility, as the human judge contemplates the limitations that make it impossible to accomplish more than a pale shadow of the justice of God. god the judge and human justice journal of law and religion 39 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2017.11 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:29, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2017.11 https://www.cambridge.org/core GOD THE JUDGE AND HUMAN JUSTICE Biblical Portrayals of Divine Justice The Rich Man and Lazarus Uzziah and the Priests Jesus's Resistance to Temptation Jesus and the Lex Talionis God's Justice and Human Justice God's Character as a Model for Human Judges Human Judges Lack God's Knowledge and Power Perfect Retribution and the Theory of Punishment The Unsatisfactory Results of Proportionality Review Divine Justice as a Motive for Mercy Conclusion 
work_fm3o7ymovrhndk25k7epeflwiq	----	artigojosecarlosricardo Justiça de Transição e Poder Judiciário brasileiro - a barreira da Lei de Anistia para a responsabilização dos crimes da ditadura civil-militar no Brasil Ricardo Silveira Castro∗ José Carlos Moreira da Silva Filho∗∗ 1. Introdução Justiça de transição é o termo que designa o conjunto de práticas e mecanismos que devem ser adotados pelos Estados que passam por períodos de conflito (ditaduras, guerras civis e outras situações de prática de violência massiva) e precisam se reestruturar para possibilitar a consolidação da democracia. A atuação das ações transicionais costumam ser divididas em quatro dimensões: as que buscam atender o direito à verdade e à memória, as que pretendem reparar as vítimas dos atos de exceção, as que visam a reforma das instituições e as que objetivam a punição dos agentes estatais que violaram normas de direitos humanos1. O foco desse trabalho é a dimensão ∗ Acadêmico do curso de Direito na Pontifícia Universidade Católica do Rio Grande do Sul. Bolsista de Iniciação Científica PIBIC/CNPQ. Membro do Grupo de Pesquisa CNPq Direito à Verdade e à Memória e Justiça de Transição. E-mail: silveiraricardocastro@gmail.com ∗∗Doutor em Direito das Relações Sociais pela Universidade Federal do Paraná - UFPR; Mestre em Teoria e Filosofia do Direito pela Universidade Federal de Santa Catarina - UFSC; Bacharel em Direito pela Universidade de Brasília - UnB; Professor da Faculdade de Direito da Pontifícia Universidade Católica do Rio Grande do Sul - PUCRS (Programa de Pós-graduação em Ciências Criminais – Mestrado e Doutorado - e Graduação em Direito); Bolsista Produtividade em Pesquisa do CNPq - Nível 2; Vice- Presidente da Comissão de Anistia do Ministério da Justiça; Coordenador do Grupo de Pesquisa CNPq Direito à Verdade e à Memória e Justiça de Transição; Membro-Diretor do Grupo de Estudos sobre Internacionalização do Direito e Justiça de Transição – IDEJUST. E-Mail: josecarlosfilho@terra.com.br 1 Diante da limitação do espaço não pretendemos adentrar aqui na problemática da definição do termo "Justiça de Transição", tema explorado por diferentes estudos, tais como: ARTHUR, Paige. Como as 'transições' reconfiguraram os direitos humanos: uma história conceitual da justiça de transição. In: REÁTEGUI, Félix (org.). Justiça de Transição - manual para a América Latina. Brasília: Comissão de Anisita, Ministério da Justiça; New York: International Center for Transitional Justice, 2011. p.73-133; TEITEL, Ruti. Transitional Justice. New York: Oxford University, 2000; WINTER, Stephen. Towards a unified theory of transitional justice. In: The International Journal of Transitional Justice, Oxford University Press, v.7, n.2, p.224-244, julho 2013; IVERSON, Jens. Transitional justice, jus post bellum and international criminal law: differentiating the usages, history and dynamics. In: The International Journal of Transitional Justice, Oxford University Press, v.7, n.3, p.413-433, novembro 2013; AMBOS, Kai. The Legal Framework of Transitional Justice. In: AMBOS, Kai; LARGE, J.; WIERDA, M. (Eds). Building A Future On Peace And Justice: Studies On Transitional Justice, Conflict Resolution And Development, Berlim, p. 19-103, 2009. Disponível em: http://ssrn.com/abstract=1972143 or http://dx.doi.org/10.2139/ssrn.1972143 (Acesso em 07/01/2014); QUINALHA, Renan Honório. Justiça de Transição - contornos do conceito. São Paulo: Outras Expressões; Dobra Editorial, 2013; Revista Anistia Política e Justiça de Transição, Brasília, n.7, jan.- jun. 2012. Como patamar introdutório suficiente para os fins deste artigo, enunciamos a definição adotada em documento produzido pelo Conselho de Segurança da ONU: “A noção de ‘justiça de transição’ que costuma ser a mais problemática da justiça transicional, isto é, a responsabilização. A importância do estudo a respeito da possibilidade jurídica de haver julgamentos voltados à atribuição de responsabilidade criminal aos agentes do regime militar de 1964 está relacionada com a necessidade de se construir uma cultura de respeito e fortalecimento aos direitos humanos pelas forças de segurança pública do Estado Democrático de Direito brasileiro. Na primeira parte do presente trabalho, buscar-se-á apresentar – a partir do contexto político de limitação da transição brasileira – a dificuldade encontrada pelos perseguidos políticos e seus familiares em responsabilizar os agentes do Estado envolvidos em crimes comuns durante a repressão política do regime militar de 1964. Num segundo momento, serão analisados os rumos que a transição brasileira tomou, inclinando-se mais à dimensão da reparação às vítimas da ditadura e menos à responsabilização dos agentes estatais. Mais adiante serão tecidas algumas considerações a respeito da contrariedade existente entre os principais precedentes do Supremo Tribunal Federal que discutiram o tema das transições políticas relacionadas às ditaduras civis-militares que assolaram o Cone Sul na segunda metade do século XX. Por fim, será trazido à baila o tema da vinculação do Brasil e das suas decisões judiciais aos termos da Convenção Americana de Direitos Humanos e à jurisprudência da Corte Interamericana de Direitos Humanos. 2. Os crimes da ditadura brasileira e a anistia de 1979: tentativas frustradas de responsabilização Durante as décadas de 1960 e 1970, no contexto da Guerra Fria, ocorreram diversos golpes de Estado em países da América Latina, dentre os quais, está o Brasil. A ditadura civil-militar que golpeou a Constituição de 1946 - democraticamente discutida no presente relatório compreende o conjunto de processos e mecanismos associados às tentativas da sociedade em chegar a um acordo quanto ao grande legado de abusos cometidos no passado, a fim de assegurar que os responsáveis prestem contas de seus atos, que seja feita a justiça e se conquiste a reconciliação. Tais mecanismos podem ser judiciais e extrajudiciais, com diferentes níveis de envolvimento internacional (ou nenhum), bem como abarcar o juízo de processos individuais, reparações, busca da verdade, reforma institucional, investigação de antecedentes, a destruição de um cargo ou a combinação de todos esses procedimentos” (NAÇÕES UNIDAS – Conselho de Segurança. O Estado de Direito e a justiça de transição em sociedades em conflito ou pós-conflito. Relatório do Secretário Geral S/2004/616. In: Revista Anistia Política e Justiça de Transição, Brasília, n.1, p.320-351, jan.-jun. 2009. p.325). Sobre o tema da Justiça de Transição, conferir: ABRÃO, Paulo. (Org.) ; VIEIRA, Jose Ribas (Org.) ; LOPES, J. R. L. (Org.) ; TORELLY, M. D. (Org.). Dossiê: o que é justiça de transição? In: Revista Anistia Política e Justiça de Transição, Brasília, n.1, p.31-112, jan.-jun. 2009. promulgada - marcou esse período histórico pela cultura do terror instaurada. A perseguição promovida contra os opositores do regime autoritário logo em seguida do golpe revelou a impossibilidade de diálogo democrático e sepultou a liberdade de expressão. O regime militar utilizou-se da estrutura estatal para cometer crimes de lesa- humanidade. O Estado de Exceção criou técnicas de neutralização2 que visavam inverter o cenário decorrente da prática de seus crimes: os agentes policiais e militares passavam de criminosos a defensores da ordem e da lei. É característica do crime de Estado a pretensão de sempre estar justificado. No caso brasileiro, as marcas deixadas pelas técnicas de neutralização são tão profundas que continuam contaminando o entendimento de muitos cidadãos, inclusive com a negação do direito de resistência dos que se opuseram ao plano de poder imposto em 1964. O fenômeno da legalidade autoritária3 relacionado especificamente à ditadura civil-militar é fruto de uma grande preocupação dos golpistas em legitimar suas ações através do campo jurídico. É preciso reconhecer que o Poder Judiciário brasileiro, em geral, foi importante aliado das Forças Armadas na construção do projeto militar autoritário. Essa aliança foi desenvolvida ao longo do período ditatorial, quando o Poder Judiciário reconheceu como “subversivos” os opositores políticos do regime militar, aplicando-lhes penas estabelecidas em leis draconianas. A transição política controlada pelos militares e pelos setores da sociedade que os apoiavam teve início ainda na década de 1970 e foi marcada pela ameaça de um autoritarismo ressurgente. Mesmo assim, a promessa de liberdade em um regime democrático guiou as lutas dos comitês brasileiros pela anistia, que colocaram em 2 O conceito de "técnicas de neutralização" advém dos estudos de Sykes & Matza desenvolvido nos anos 50 a respeito da delinquência juvenil (SYKES, Gresham M.; MATZA, David. Techniques of neutralization: a theory of delinquency. In: American Sociological Review, n.22, 1957, p.664-670) e apontam para a ideia de que a sua utilização neutraliza em determinadas circunstâncias o caráter reprovável do ato violento. Zaffaroni faz uso desses conceitos para analisar os crimes do Estado. A esse respeito, ver: ZAFFARONI, Eugenio Raul. La palabra de los muertos - conferencias de criminologia cautelar. Buenos Aires: EDIAR, 2011. p.447-474 e SILVA FILHO, José Carlos Moreira da . Crimes do Estado e Justiça de Transição. Sistema Penal & Violência, v. 2, p. 22-35, 2010. 3 O conceito está presente no importante estudo de Anthony W. Pereira acerca da judicialização e legalização da repressão no Chile, na Argentina e no Brasil e pode ser estendido não somente para o período autoritário iniciado em 1964, mas também para outros momentos marcantes da história do Brasil nos quais o bacharelismo legalista serviu para dar preferência a tecnicalidades pontuais em detrimento das orientações principiológicas voltadas ao aprofundamento democrático e ao fortalecimento dos direitos humanos. Ver: PEREIRA, Anthony W. Ditadura e repressão: o autoritarismo e o estado de direito no Brasil, no Chile e na Argentina. São Paulo: Paz e Terra, 2010. discussão na sociedade civil a importância da anistia para a retomada do exercício de direitos fundamentais pelos brasileiros perseguidos pelo regime de exceção. A anistia reclamada veio em 1979, com a promulgação da Lei Nº 6.683. Repleta de distorções, a Lei de Anistia registrava, a grosso modo, um “perdão” recíproco: opressores e oprimidos estariam anistiados. É necessário enfatizar que tal instrumento normativo surge no contexto de uma ditadura militar que seguia comandada por um general e que havia recebido das mãos do seu antecessor, também um general, um Congresso Nacional desfigurado pelo pacote de abril, instituído em 1977 com base no mais virulento dos Atos Institucionais, o AI-5. O Congresso foi fechado por 15 dias e a forma da sua composição foi alterada, aumentando a base de sustentação parlamentar da ditadura e criando, inclusive, a figura do “senador biônico”. Tal esclarecimento é fundamental para que se compreenda a inviabilidade de quaisquer ações naquele momento que buscassem contestar a extensão da anistia aos agentes da repressão estatal. A visualização dessa realidade mostra-se importante na medida em que não é incomum encontrar-se o argumento de que a Lei de Anistia deveria ter sido questionada no seu tempo e não depois. Ocorre que, embora houvesse um processo de abertura política em andamento, em 1979, ainda era muito marcante o controle do regime ditatorial. Contudo, os magistrados do Supremo Tribunal Federal - durante o julgamento da Arguição de Descumprimento de Preceito Fundamental Nº 153 - ignoraram o contexto político existente no período posterior à promulgação da Lei de Anistia para corroborar o argumento de que uma discussão atual daquele instrumento normativo representaria uma “revisão da história” que afrontaria os valores constitucionais vigentes desde 1988. Argumentou-se, em linhas gerais, que se antes não houve possibilidade de enfrentamento da anistia aos agentes da ditadura porque se vivia uma incipiente abertura democrática, hoje esse caminho restou obstaculizado por conta do longo período de tempo (mais de trinta anos) que se passou desde o fim do Estado ditatorial. Em que pese a ameaça do governo militar ter restringido consideravelmente a ação dos perseguidos e de seus familiares na busca pelo esclarecimento de crimes e abusos de autoridade, o fato é que houve algumas tentativas de acionamento do Poder Judiciário após a edição da Lei de Anistia que visavam a defesa dos direitos fundamentais escrachados pelo império da força. Na seara criminal, destacam-se duas batalhas jurídicas travadas antes de 1988: a primeira na Justiça Estadual do Rio Grande do Sul por conta do assassinato do sargento do exército Manoel Raymundo Soares; e a segunda no Superior Tribunal Militar pela tortura do perseguido político Milton Coelho de Carvalho. O militar Manoel Raymundo Soares foi encontrado boiando com as mãos amarradas no Rio do Jacuí no dia 24 de agosto de 1966. Conforme consta no inquérito policial militar que investigou os fatos, Manoel desertou e foi expulso do exército em 1964, a partir de quando passou a viver na clandestinidade. No ano de 1966 o sargento foi recolhido à prisão na Ilha do Presídio por ter sido abordado com panfletos que veiculavam críticas ao governo militar. Mesmo diante do conjunto probatório que apontava para a responsabilidade de agentes do DOPS e da polícia pela prática de tortura e pelo homicídio, o delegado concluiu o procedimento de investigação preliminar sem indiciar ninguém. O caso ganhou repercussão depois que o Promotor de Justiça Paulo Cláudio Tovo decidiu denunciar três policiais pelo homicídio, contrariando a conclusão duvidosa do inquérito4. O juiz de primeiro grau decidiu negar o pedido de pronúncia dos envolvidos por considerar as provas insuficientes5; tempos depois, em 1975, o Tribunal confirmaria esse entendimento para inviabilizar a punição dos agentes denunciados6. De igual modo, Milton Coelho de Carvalho, a época aposentado da Petrobras, foi preso no dia 20 de Fevereiro de 1976 em Aracajú (Sergipe) acusado de ser ligado ao Partido Comunista Brasileiro. A prisão arbitrária fazia parte da “Operação Cajueiro” que foi fruto dos esforços do DOI-CODI, do DOPS e da Polícia Federal. No cárcere, por causa dos procedimentos adotados na tortura, Milton perdeu a visão. O processo para averiguação da responsabilidade dos agentes do estado e sua respectiva punição 4 Ver o famoso "Relatório Tovo" em publicação especial organizada pelo Tribunal Regional Federal da 4a. Região em 2008: ASSUMPÇÃO, Eliane Maria Salgado (org.). O Direito na História: o caso das mãos amarradas. Porto Alegre: TRF 4a. Região, 2008. 5 Cópia dos originais da denúncia oferecida pelo Ministério Público podem ser visualizadas no site: http://digital.canaleletronico.net/maosamarradas/denuncia/index.html (Acesso em 07/01/2014). Ver também a descrição do caso no Relatório da Comissão de Mortos e Desaparecidos Políticos: BRASIL. Secretaria Especial dos Direitos Humanos. Comissão Especial sobre Mortos e Desaparecidos Políticos. Direito à verdade e à memória. Brasília: Secretaria Especial dos Direitos Humanos, 2007. p.75-77. 6 RIO GRANDE DO SUL. Tribunal de Justiça. Câmara Criminal Especial. Recurso Crime n.16.336. Negado provimento em 01/10/1975. Relator: Cristovam Daiello Moreira. Os autos do processo estão arquivados no Memorial do Judiciário do Rio Grande do Sul - TJRS, e para consultá-los é preciso marcar hora e comparecer pessoalmente ao arquivo. transcorreu, em 1980, no Superior Tribunal Militar e na ocasião representou a primeira aplicação da Lei de Anistia como “perdão recíproco”: aqueles que cegaram Milton estavam perdoados7. Além desses dois casos que provocaram o Poder Judiciário a se manifestar antes de 1988 (durante o regime de exceção, portanto), é preciso mencionar outras duas situações que – mesmo ocorrendo após a vigência da Constituição Cidadã – demonstram uma continuidade da ordem estabelecida em 1964: a tentativa do Ministério Público de São Paulo de abrir um inquérito civil para apurar, em 1992, a morte do jornalista Vladimir Herzog e a tentativa de reabrir a investigação do caso Riocentro, em 1996, no Superior Tribunal Militar. Em ambos os casos houve o indeferimento dos pleitos pela mesma razão: incidência da anistia “bilateral” de 19798. O curioso é que, no segundo caso, referente ao atentado ocorrido em 1981 no Riocentro, mesmo reconhecendo indícios de autoria de militares no crime, os Ministros do STM – agindo em desacordo com a própria Lei Nº 6.683/1979 – justificaram o arquivamento do procedimento pela incidência da anistia a crimes cometidos após 1979. A construção de uma “anistia pra frente” representou um verdadeiro estelionato jurídico que contribuiu para fortalecer a noção de que – no Brasil – não haveria responsabilização dos agentes do estado de exceção: como pensar em punir os crimes de tortura, sequestro e homicídio ocorridos antes de 1979 se sobre aqueles que ocorreram depois (como o atentado ao Riocentro) também incidia – legitimamente, conforme o poder Judiciário – a malfadada causa de extinção da punibilidade? Assim, seja antes, seja depois do estabelecimento da ordem democrática pela Constituição de 1988 a tentativa de se construir o pilar da “responsabilização” no 7 JOSÉ, Otto. Os torturadores anistiados – como está sendo aplicada a Lei de Anistia. Movimento, São Paulo, abr. 1980 apud TELES, Janaína de Almeida. As disputas pela interpretação da Lei de Anistia de 1979. In: Idéias. São Paulo, n.1, jan./jun., 2010. p.12. Disponível em:http://www.ifch.unicamp.br/ojs/index.php/ideias/issue/view/2/showToc (Acesso em 07/01/2014). 8 A decisão de trancar o inquérito policial do caso Herzog veio da Quarta câmara do Tribunal de Justiça de São Paulo (SÃO PAULO. Tribunal de Justiça. Habeas Corpus n. 131.798-3/2. Relator Péricles Piza) e foi mantida pelo Superior Tribunal de Justiça (SUPERIOR TRIBUNAL DE JUSTIÇA. Recurso Especial n.33.782-7-SP, j.18/08/1993, 5a Turma, unânime, Relator Ministro José Dantas). Já a decisão de trancar as investigações do caso Riocentro com base na Lei de Anistia foi tomada pelo Superior Tribunal Militar em 1988, quando declarou de ofício a extinção da punibilidade dos autores (Representação n. 1.067-7/DF) e quando negou em 1996 novo pedido de abertura da investigação (Representação Criminal n. 4-0/DF). Maiores detalhes sobre ambos os casos podem ser vistos em: SANTOS, Roberto Lima; BREGA FILHO, Vladimir. Os reflexos da "judicialização" da repressão política no Brasil no seu engajamento com os postulados da justiça de transição. In: Revista Anistia Política e Justiça de Transição. Brasília, n.1, p.152-177, jan./jun. 2009. processo transicional brasileiro sempre esteve presente como reivindicação dos que sofreram com os atos de exceção. No entanto, como se constatou, os termos da interpretação dada ao instituto da anistia impediram qualquer análise de mérito que viabilizasse alguma providência no sentido da investigação e da responsabilização. Somente após a virada do século, a partir de 2008, é que houve uma nova mobilização, por parte de organismos da sociedade civil e de órgãos vinculados ao Estado, que buscou questionar a validade da interpretação da anistia como “acordo bilateral” perante o Supremo Tribunal Federal9. O foco deste artigo é justamente averiguar as contradições da postura do Supremo Tribunal Federal – enquanto órgão máximo do Poder Judiciário – acerca dos temas envolvendo a justiça de transição, precipuamente no que tange ao aspecto da possibilidade de persecução criminal dos crimes de lesa-humanidade cometidos pelos agentes do Estado ditatorial. Para tanto, serão analisadas as contradições existentes em cinco precedentes do Egrégio Tribunal: a ADPF Nº.153, a ADPF Nº 130, a Extradição Nº 974, a Extradição Nº 1.150 e a Extradição Nº 1.228. Na sequência, o foco recairá sobre a contradição da Suprema Corte quanto à interpretação da Convenção Americana de Direitos Humanos e dos precedentes da Corte Interamericana de Direitos Humanos. Antes disso, no entanto, a fim de melhor esclarecer o contexto que deu oportunidade a essas discussões, se fará no próximo item uma breve reflexão acerca do caminho 9 No dia 31 de julho de 2008 a Comissão de Anistia organizou uma audiência pública no prédio sede do Ministério da Justiça em Brasília para discutir as possibilidades jurídicas de julgamento dos torturadores que atuaram em prol do governo ditatorial. A reação da imprensa foi imediata e incessante, e, apesar da tentativa inicial de desqualificar o debate, pautou o tema com elevada frequência em jornais, revistas e outros meios de massa. Artigos a favor e contra a possibilidade do julgamento eram publicados e não paravam de surgir nas páginas dos principais jornais do país. Até então este parecia um assunto proibido. O então Presidente do Conselho Federal da OAB, Cezar Britto, compareceu à audiência e meses depois, sob a influência da discussão, mobilizou o Conselho e propôs, com a assinatura de Fábio Konder Comparato, a Argüição de Descumprimento de Preceito Fundamental Nº 153 no STF. Importante também mencionar a corajosa e importante sentença do juiz Gustavo Santini Teodoro, de outubro de 2008, confirmada pelo Tribunal de Justiça paulista em agosto de 2012, e que, embora só tenha efeitos declarativos, foi a primeira manifestação judicial que reconheceu explicitamente um ex-agente público brasileiro como torturador: o Coronel Carlos Alberto Brilhante Ustra, apontado em dezenas de relatos de ex-perseguidos como torturador e que foi comandante da temida Operação Bandeirante em São Paulo na década de 70. Esquentando ainda mais o ambiente para o julgamento da ADPF Nº 153 no STF, em janeiro de 2010 a Secretaria Especial de Direitos Humanos lança o III Plano Nacional de Direitos Humanos, inaugurando uma Diretriz inexistente nos planos anteriores, aquela que cuida do Direito à Memória e à Verdade. Entre outras deliberações, o Plano propugnou a instituição de uma Comissão Nacional da Verdade, que veio a ser constituída em 2012, e uma série de outras políticas públicas em torno da memória, dano espaço para as opiniões desfavoráveis ao bloqueio da Lei de anistia quanto à investigação e responsabilização dos crimes de lesa humanidade praticados pelos agentes da ditadura. adotado pelo Brasil em sua transição política, mostrando que o motor desse processo foi a preocupação em reparar as vítimas dos atos de exceção. 3. Mais reparação, menos responsabilização A Constituição Federal de 1988 representou uma conquista para o processo de democratização iniciado após a Lei de Anistia de 1979, mas isso não fez dela um instrumento capaz de romper com a cultura autoritária impregnada nas instituições estatais durante os vinte e um anos de vigência do estado de exceção10. Aliás, para criar possibilidades reais de rompimento com a estrutura autoritária é que os mecanismos transicionais atuam em quatro frentes de combate ao legado de repressão: a busca pela verdade e pela memória, a reforma das instituições, a reparação às vítimas e a responsabilização dos crimes cometidos com a violação de direitos humanos. É preciso dizer que no enfrentamento desse legado autoritário não há um percurso “certo” ou “errado”, pois cada país possui suas peculiaridades que necessariamente resultarão em uma postura própria diante da necessidade de se optar pelos meios que serão utilizados para o enfrentamento do legado autoritário. No caso específico do Brasil, é possível perceber que grande parte dos esforços dispensados voltaram-se para a promoção da reparação às vítimas. O próprio texto constitucional que instaurou o Estado Democrático de Direito elencou – no Art. 8º do Ato das Disposições Constitucionais Transitórias (ADCT) - a reparação aos atingidos pelos atos de exceção como imperativo necessário para o restabelecimento de uma ordem legítima. A execução desse mandamento constitucional operacionalizou-se pelo trabalho organizado de duas comissões de reparação: a Comissão Especial de Mortos e Desaparecidos Políticos, vinculada à Secretaria Especial de Direitos Humanos da Presidência da República e a Comissão de Anistia, vinculada ao Ministério da Justiça. A Comissão Especial de Mortos e Desaparecidos Políticos foi criada pela Lei Nº. 9.140/1995 e recebeu a incumbência de reconhecer as pessoas desaparecidas, envidar esforços para localizar os restos mortais dos perseguidos políticos desaparecidos e 10 Como destaca de modo perspicaz Cristiano Paixão (PAIXÃO, Cristiano. A constituição em disputa: transição ou ruptura? In: SEELAENDER, Airton (Org.) História do Direito e construção do Estado. São Paulo: Quartier Latin, 2012. no prelo), a partir das eleições de 1986 e mais intensamente com a instalação da constituinte tornou-se nítida a disputa em torno do significado da Constituição, seja no conflito em torno dos procedimentos adotados pelos constituintes para elaborarem o texto, seja nos esforços de defini-la como o resultado de uma ruptura ou de uma continuidade com o regime de força. também emitir pareceres quanto aos pedidos de indenização formulados pelos familiares, orientando suas ações pelo “princípio de reconciliação e de pacificação nacional”. Enfatize-se que foi por meio desse instrumento normativo que o ordenamento jurídico pátrio reconheceu, pela primeira vez, a responsabilidade objetiva do Estado pela morte e pelo desaparecimento forçado de opositores políticos, durante o regime militar11. Já a Comissão de Anistia foi criada pela MP Nº 2.151/2001, depois convertida na Lei Nº 10.559/2002 e sua função é reparar os perseguidos políticos pelas várias circunstâncias que lhes geraram prejuízos (patrimoniais e extra-patrimoniais): torturas, prisões arbitrárias, demissões, transferências de serviço por razões políticas, sequestros, compelimentos à clandestinidade e ao exílio, banimentos, expurgos estudantis, monitoramentos ilícitos, etc. A reparação aos perseguidos políticos prevista na Lei Nº 10.559 inclui: direito à declaração de condição de anistiado político; direito à reparação econômica; direito à contagem – para todos os efeitos – do tempo em que o perseguido político foi obrigado a afastar-se de suas atividades profissionais, devido à punição ou ameaça de punição; direito à conclusão de curso interrompido por punição ou ao registro de diploma obtido em instituição de ensino fora do país; e direito à reintegração dos servidores públicos civis e dos empregados públicos. Como se pode notar, a Lei procurou trazer meios capazes de restabelecer as condições dos perseguidos políticos, tanto economicamente quanto simbolicamente12. Aliás, no campo da reparação 11 O resultado do trabalho da Comissão foi publicado no livro BRASIL. Secretaria Especial dos Direitos Humanos. Comissão Especial sobre Mortos e Desaparecidos Políticos. Direito à verdade e à memória. Brasília: Secretaria Especial dos Direitos Humanos, 2007. A publicação e o lançamento deste livro no ano de 2007, em uma grande solenidade ocorrida no Palácio do Planalto, com as presenças do Presidente da República, Luis Inácio Lula da Silva, o Ministro da Defesa, Nelson Jobim, a Ministra-Chefe da Casa Civil, Dilma Roussef e o Ministro da Secretaria Especial dos Direitos Humanos da Presidência da República, Paulo Vannuchi, representou um avanço significativo do Brasil no resgate da sua memória política. A obra, que demarca a conclusão dos trabalhos da Comissão Especial dobre Mortos e Desaparecidos Políticos pode ser consultada no seguinte endereço eletrônico: http://www.presidencia.gov.br/estrutura_presidencia/sedh/.arquivos/livrodireitomemoriaeverdadeid.pdf 12 Ampliando a reparação e evidenciando o cuidado e a preocupação com o olhar das vítimas da repressão ditatorial, a Comissão de Anistia lançou em março de 2013 o Projeto Clínicas do Testemunho, que pretende fornecer assistência psicológica aos que foram atingidos pela repressão política. O projeto contou em sua preparação com o auxílio de especialistas da área e prevê a sua execução em parceria com instituições aprovadas em Edital público com verba, apoio e estrutura para dar conta de prover essa assistência. O projeto prevê a sua execução primeiramente nas cidades de São Paulo, Porto Alegre, Recife e Rio de Janeiro, com a expectativa de ampliação para outras cidades em uma segunda fase. Para maiores informações ver: http://blog.justica.gov.br/inicio/tag/clinicas-do-testemunho/ (Acesso em 07/01/2014). Outro aspecto digno de nota é que a experiência das Clínicas do Testemunho poderá ser aproveitada para que se efetive um projeto semelhante para o tratamento de vítimas das atuais práticas criminosas de agentes públicos, especialmente, da tortura, ainda numerosa no país. simbólica, a partir de 2007, a Comissão da Anistia passou a formalmente, em cada caso de deferimento do pedido de reparação fomulado, pedir desculpas pelos erros cometidos pelo Estado. Tal pedido de desculpas traduz um ato de reconhecimento da legitimidade do direito de resistência dos opositores do regime militar. Cabe registrar ainda a importância que as Caravanas da Anistia assumiram nesse contexto, já que durante essas ocasiões – quando ocorrem julgamentos públicos de requerimentos feitos por perseguidos políticos em diferentes cidades e espaços comunitários do país – é dado espaço de fala para as vítimas. Durante esses momentos, aqueles que tiveram desrespeitados seus direitos fundamentais de livre expressão e consciência podem testemunhar e oferecer a sua versão dos acontecimentos – quebrando-se, assim, a lógica do silêncio das vítimas e da “verdade oficial”13. A opção do Brasil em priorizar a efetivação do direito à reparação acabou influenciando diretamente na dimensão da busca pela verdade. Isso porque o trabalho das comissões de reparação, em boa medida, promoveu um questionamento da versão dos fatos oferecida pelos órgãos do estado ditatorial. Para conceder indenização pecuniária, por exemplo, as comissões investigaram a circunstância da morte dos desaparecidos e das perseguições de milhares de perseguidos políticos, reconhecendo a participação do poder público e desqualificando versões esdrúxulas oficializadas pelo regime militar (como as mortes supostamente ocorridas por suicídio, conforme registro oficial, ou por mirabolantes e fantasiosos acidentes, como se registrou em inúmeras investigações policiais do período). As atenções atualmente voltam-se à Comissão Nacional da Verdade que busca estender e consolidar as conquistas obtidas até a sua Há ainda que se mencionar, no campo da reparação simbólica a iniciativa do Edital Marcas da Memória. Divulgado anualmente desde 2010 o Edital Marcas da Memória faz parte das políticas de memória executadas pela Comissão de Anistia e tem por objetivo destinar verba pública a projetos culturais, artísticos e científicos voltados ao resgate da memória política brasileira. Ver: BAGGIO, Roberta Camineiro. Marcas da Memória: a atuação da Comissão de Anistia no campo das políticas públicas de transição no Brasil. In: Ciências Sociais Unisinos, São Leopoldo, Vol. 48, N. 2, p. 111-118, mai/ago 2012. 13 Até agosto de 2013, 72 Caravanas foram realizadas em todo o Brasil. Em recente publicação, apoiada pelo Projeto Marcas da Memória, está o detalhamento das primeiras 50 Caravanas realizadas acompanhado de diversos textos escritos sobre o significado das Caravanas, escritos por diversas personalidades dentre artistas, intelectuais, pesquisadores, ex-perseguidos políticos, juristas, jornalistas, entre outros. Ver: COELHO, Maria José H.; ROTTA, Vera (orgs.). Caravanas da Anistia: o Brasil pede perdão. Brasília: Ministério da Justiça; Florianópolis: Comunicação, Estudos e Consultoria, 2012. Uma descrição mais sucinta de todas as Caravanas realizadas de 2007 a 2010 pode ser vista em: Ações Educativas da Comissão de Anistia - relatório de gestão 2007-2010. Brasília: Ministério da Justiça, 2010. Para as Caravanas mais recentes, inclusive com vídeos, entrevistas e transcrição de depoimentos, ver o Blog do Ministério da Justiça no site: http://blog.justica.gov.br instalação, em 2012 Em compensação, pouco tem-se progredido no que tange à reforma das instituições e à responsabilização dos agentes policiais e militares que violaram normas de direitos humanos. Em que pese as instituições (tais como o Serviço Nacional de Informações, as Divisões de Segurança Institucional, o Departamento de Operações de Informações - Centro de Operações de Defesa Interna e os Departamentos de Ordem Política e Social) responsáveis pela repressão organizada do regime de exceção terem sido extintas, o fato é que a cultura de desrespeito e desvalorização dos direitos humanos tem ganhado espaço perante as forças de segurança pública do país. Se é verdade que a reparação das vítimas está intimamente ligada ao direito à verdade, é preciso reconhecer a relação que a reforma das instituições possui com o campo da responsabilização14. Não é difícil de entender o porquê: os agentes estatais que estiveram envolvidos em crimes de lesa- humanidade, além de não terem sido responsabilizados, foram realocados nos quadros da administração pública e levam consigo os métodos utilizados na abordagem dos que outrora eram denominados de “subversivos”. A lógica do direito penal do inimigo assume uma nova veste (já que o inimigo muda de denominação), mas a sua essência – que é a negação da esfera de direitos do outro – segue intocável, assim como a forma de atacá-lo15. 14 Esta relação é apontada na pesquisa de Kathryn Sikkink. Ver: SIKKINK, Kathryn. The Justice Cascade - how human rights procesutions are changing world politics. New York, London: W.W. Norton & Company, 2011. Ver também o artigo: SIKKINK, Kathryn. WALLING, Carrie Booth. The impact of human rights trials in Latin America. Journal of Peace Research, Los Angeles, London, New Delhi, Singapore, vol.44, n.4, 2007, p.427-445. 15 Importa esclarecer que não se ignora ser a violência policial uma característica tradicional das forças de segurança pública brasileiras, desde antes do advento do golpe de Estado de 1964, desde as práticas escravistas até a era Vargas, contudo, a ditadura então instalada contribuiu significativamente não apenas para dar continuidade a esta macabra tradição como aprofundá-la dentro das corporações e das instituições brasileiras ligadas à segurança pública. Nesse sentido, ver o interessante estudo de Martha Huggins: HUGGINS, Martha Knisely; ZIMBARDO, Philip G.; HARITOS-FATOUROS, Mika. Operários da Violência – policiais torturadores e assassinos reconstroem as atrocidades brasileiras. Brasília: UnB, 2006. Ver também: JESUS, Maria Gorete Marques de. O crime de tortura e a justiça criminal: um estudo dos processos de tortura na cidade de São Paulo. São Paulo: IBCCRIM, 2010. (Monografias, 55). Corroborando o elevado índice de mortes e torturas praticadas pelas forças policiais brasileiras, ver os relatórios: NUCLEO DE ESTUDOS DE CIDADANIA, CONFLITO E VIOLÊNCIA (UFRJ). “Autos de" resistência: uma análise dos homicídios cometidos por policiais na cidade do Rio de Janeiro (2001-2011). Disponível em: http://www.necvu.ifcs.ufrj.br/images/Relatorio%20final%20Autos%20de%20Resist%C3%AAncia.pdf Acesso em: 07/01/2014; HUMAN RIGHTS WATCH. Lethal Force. Police Violence and Public Security in Rio de Janeiro and São Paulo. Disponível em: http://www.hrw.org/sites/default/files/reports/brazil1209webwcover.pdf . Acesso em 07/01/2014; JUSTIÇA GLOBAL. Segurança, Tráfico e Milícias no Rio de Janeiro. Disponível em: http://global.org.br/wp-content/uploads/2009/12/Relatorio_Milicias_completo.pdf . Acesso em A responsabilização é, das quatro dimensões da justiça de transição, a única que segue ainda estagnada. Como já foi exposto, a busca pela responsabilização dos agentes que utilizaram a estrutura do Estado para perseguir, torturar e assassinar sempre foi posta em pauta diante do Judiciário, mas tem esbarrado na anistia “ampla, geral e irrestrita” de 1979. Uma análise superficial poderia resultar na conclusão de que a Lei de Anistia é um empecilho, um “erro” no percurso das transições políticas. Ocorre que, a anistia de 1979 trouxe a estabilidade política necessária para que os militares se sentissem seguros o suficiente para, se não auxiliar, ao menos não dificultar o processo de abertura política. Assim, é preciso reconhecer o papel de destaque que o instituto da anistia desempenhou para que a democracia ganhasse espaço diante do aparelho autoritário de poder. A função desse mecanismo, contudo, não pode ser impossibilitar eternamente a responsabilização. O prejuízo que haveria para a sociedade brasileira se houvesse julgamentos tão logo o regime de exceção tivesse se encerrado equipara-se ao dano causado pelo bloqueio perene das vias de responsabilização defendido atualmente. Estudos na área da justiça transicional concluem que “a responsabilização (julgamento) deve ser equilibrada com a estabilidade (anistia) para obter êxito”16. Explicando a relação responsabilização-estabilidade, os pesquisadores referem que “em alguns casos, anistias fornecem a estabilidade que mais tarde permite que democracias fortes processem os perpetradores e estabeleçam a proteção dos direitos humanos. (…) Nesse cenário, o equilíbrio envolve dar sequência à responsabilização após a anistia ter favorecido a estabilidade política”17. Foi justamente por compartilhar dessa compreensão que o Ministério da Justiça, em 2008, organizou a audiência pública “Limites e possibilidades para a responsabilização jurídica dos agentes violadores de 07/01/2014; JUSTIÇA GLOBAL. Execuções Sumárias, Arbitrárias e Extrajudiciais. Uma aproximação da realidade brasileira. Disponível em: http://dhnet.org.br/dados/relatorios/r_jglobal/r_jg_exec_extra_judiciais1.pdf. Acesso em 07/01/2014; AMNISTIA INTERNACIONAL BRASIL. “Entrán Disparando”: La actuación policial em las comunidades socialmente excluidas. Disponível em: http://www.amnesty.org/es/library/asset/AMR19/025/2005/es/d6c16d41-d49c-11dd-8a23- d58a49c0d652/amr190252005pt.html. Acesso em 07/01/2014. 16 OLSEN, Tricia D.; PAYNE, Leigh; REITER, Andrew G. As implicações políticas dos processos de anistia. In: ABRÃO, Paulo; PAYNE, Leigh; TORELLY, Marcelo. A Anistia na Era da Responsabilização: o Brasil em perspectiva internacional e comparada. Brasília: Ministério da Justiça, 2010p.563. Ver também dos mesmo autores: OLSEN, Tricia D.; PAYNE, Leigh; REITER, Andrew G. Transitional Justice in Balance - comparing processes, weighing efficacy. Washington, D.C.: United States Institute of Peace Press, 2010. 17 Ibidem, p.564. direitos humanos durante o estado de exceção no Brasil”. O tabu da anistia bilateral estava prestes a ser enfrentado, pela primeira vez, diante de um Estado democraticamente constituído e organizado. Foram as ideias veiculadas durante essa audiência pública, que contou com a participação da sociedade civil e de agentes políticos do poder legislativo, do poder executivo e do Ministério Público, que embasaram a pretensão do Conselho Federal da Ordem dos Advogados do Brasil de questionar, perante o Supremo Tribunal Federal via Arguição de Descumprimento de Preceito Fundamental, a interpretação da Lei de Anistia de 1979. Também podem ser identificados como fatores que contribuíram para a iniciativa do Conselho Federal da OAB as reviravoltas ocorridas nos países do Cone Sul onde foram reconhecidos como nulos os indultos oferecidos pelos regimes ditatoriais, passando-se para promoção de julgamentos e punições dos agentes estatais. Cabe destacar as três principais teses de fundamentação que, na provocação do Poder Judiciário, poderiam ser defendidas para questionar a extensão da anistia: a primeira, de que a Lei Nº 6.683/1979 não poderia representar um empecilho à responsabilização dos agentes do Estado porque isso seria contrariar a jurisprudência da Corte Interamericana de Direitos Humanos que considera como nulo o instituto da auto- anistia; a segunda, de que os crimes cometidos pelo Estado, por meio de seus agentes, não podem ser entendidos como “conexos” aos crimes políticos de modo que, embora essa tenha sido a intenção do governo militar, a anistia não incidia sobre eles; e por fim, a terceira, de que embora seja possível válida a anistia bilateral, é inadmissível aplicá-la a crimes permanentes (sequestro e ocultação de cadáver, por exemplo) e aos que ocorreram depois de 1979. Tanto a primeira quanto a segunda tese de fundamentação foram sustentadas na petição inicial da ADPF Nº 15318. No entanto, durante o julgamento, o STF afastou esses argumentos adotando a seguinte postura: quanto ao primeiro posicionou-se no sentido de qualificar como legítima a anistia de 1979, com base no fato de ela ter sido resultado do trabalho do Congresso Nacional e consequentemente não se enquadrar no perfil de uma auto-anistia; e quanto ao segundo, compreendeu que, embora os crimes dos agentes do Estado não se enquadrem no 18 BRASIL. Supremo Tribunal Federal. Ação de Descumprimento de Preceito Fundamental Nº 153/DF. Arguente: Conselho Federal da Ordem dos Advogados do Brasil. Arguidos: Presidente da República e Congresso Nacional. Relator Ministro Luis Fux. Brasília/DF: 29 de abril de 2010. Disponível em:<http://www.stf.jus.br/portal/geral/verPdfPaginado.asp?id=330654&tipo=TP&descricao=ADPF%2F1 53>. Acesso em 25 ago. 2013. conceito de crimes políticos, a “conexão” criada pela Lei Nº 6.683 é sui generis (não se trata da conexão conhecida no processo penal) e representa o expoente do acordo bilateral firmado entre governo militar e oposição. A terceira tese surgiu nos embargos de declaração interpostos pelo Conselho Federal da OAB contra a decisão do Supremo na ADPF Nº 153, que, no momento da redação deste artigo, ainda aguardava julgamento. A decisão do STF na ADPF Nº 153 assume a importância de ser o precedente jurisprudencial da Suprema Corte brasileira que mais diretamente se debruçou sobre o tema da transição política pátria no aspecto da responsabilização. Nesse julgamento, os Ministros do STF puderam manifestar o seu entendimento a respeito da validade e do alcance da Lei de anistia de 1979. Com base no que ficou registrado na ADPF Nº 153 serão confrontadas algumas premissas assumidas em sede de outras decisões proferidas por esse mesmo órgão jurisdicional, quais sejam: a ADPF Nº 130, a Extradição Nº 974, a Extradição Nº 1.150 e a Extradição Nº 1.278. O Partido Democrático Trabalhista - PDT ajuizou a ADPF Nº 13019 questionando a recepção da Lei Nº 5.250/1967 (conhecida como Lei de Imprensa) pela ordem constitucional estabelecida em 1988. Conforme o defendido na petição inicial, a norma atacada era incompatível com os tempos democráticos por restringir a liberdade de expressão e cercear a liberdade de imprensa. No dia 30 de Abril de 2009 o STF, por maioria, reconheceu a procedência da ação para negar a recepção da Lei de Imprensa – aprovada pelo Congresso Nacional e promulgada durante o regime militar – pela Constituição Cidadã. A EXT Nº 97420 envolveu o pedido de extradição formulado pelo governo argentino em relação ao cidadão uruguaio Manuel Cordeiro Piacentini. O major do exército uruguaio foi acusado de participar de crimes de associação ilícita voltada à prática de crimes durante a Operação Condor nos países do Cone Sul. No dia 6 de 19 BRASIL. Supremo Tribunal Federal. Ação de Descumprimento de Preceito Fundamental Nº 130/DF. Arguente: Partido Democrático Trabalhista. Arguidos: Presidente da República, Congresso Nacional, Federação Nacional dos Jornalistas Profissionais, Associação Brasileira de Imprensa e Artigo 19 Brasil. Relator Ministro Carlos Ayres Britto. Brasília/DF: 30 de abril de 2009. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=605411>. Acesso em 25 ago. 2013. 20 BRASIL. Supremo Tribunal Federal. Extradição Nº 974. Requerente: Governo da República Argentina. Extraditando: Manoel Cordeiro Piacentini. Relator Ministro Marco Aurélio Mello; Relator p/ acórdão Ministro Ricardo Lewandowski. Brasília/DF: 06 de agosto de 2009. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=606492>. Acesso em 25 ago. 2013. Agosto de 2009 o STF, por maioria, deferiu o pedido de extradição, reconhecendo a possibilidade do uruguaio ser punido pelos crimes cometidos durante o regime de exceção. De igual modo, o governo da Argentina requisitou a extradição dos cidadãos argentinos Norberto Raul Tozzo (EXT Nº 1.15021) e Cláudio Vallejos (EXT Nº 1.27822) pela prática de crimes de desaparecimentos forçados durante o regime militar argentino. O resultado desses dois julgamentos seguiram o decidido no precedente da EXT Nº 974, e o STF atendeu ao pedido de extradição dos dois nacionais argentinos para que houvesse a devida persecução criminal. 4. A Suprema Corte brasileira enfrentando a responsabilização Inicialmente, revela-se importante a constatação de que as premissas assumidas pelos Ministros do STF nos julgamentos da ADPF Nº 130 e da ADPF Nº 153 são diametralmente opostas. Quando analisaram a primeira, precisamente um ano antes da segunda, os Ministros reconheceram o conteúdo autoritário da Lei de Imprensa que tinha o objetivo principal de impedir a difusão de ideias e críticas que pudessem levar à mobilização social em face do regime vigente à época. Por conta disso, entendendo que o conteúdo dessa lei contraria frontalmente os valores que foram elevados à hierarquia de norma constitucional, o STF fez prevalecer a Constituição de 1988 e fulminou o ato normativo autoritário atacado. Nesse caso, o Egrégio Tribunal assumiu o papel de defensor da Constituição, afastando do ordenamento jurídico uma norma que, embora promulgada pelo parlamento em 1967, carregava um sentido autoritário. Postura adversa foi adotada durante a análise da ADPF Nº 153. Na ocasião do julgamento que discutia a interpretação da Lei de Anistia de 1979, o STF descumpriu a sua missão constitucional de fortalecer e tornar efetivas as disposições da Carta Magna. Houve inclusive a sustentação de que o Poder Judiciário não está autorizado a alterar o texto normativo ou a dar outra redação, diversa da nele contemplada. A explicação para 21BRASIL. Supremo Tribunal Federal. Extradição Nº 1150. Requerente: Governo da República Argentina. Extraditando: Norberto Raul Tozzo. Relatora Ministra Carmem Lúcia. Brasília/DF: 19 de maio de 2011. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=624223>. Acesso em 25 ago. 2013. 22 BRASIL. Supremo Tribunal Federal. Extradição Nº 1278. Requerente: Governo da República Argentina. Extraditando: Claudio Vallejos. Relator Ministro Gilmar Mendes. Brasília/DF: 18 de setembro de 2012. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=2875328>. Acesso em 25 ago. 2013. essa fundamentação foi a classificação das leis de anistia como “leis medida”. Segundo o Ministro Eros Grau, defensor desse posicionamento, a anistia de 1979 veicula uma decisão política assumida naquele momento, não podendo ser entendida como uma “regra para o futuro”23. Uma segunda constatação, a partir do estudo dos acórdãos selecionados, é a contradição existente no âmbito da Suprema Corte a respeito da prescrição dos crimes dos agentes estatais que violaram normas de direitos humanos. É importante não esquecer que a anistia e a prescrição são causas de extinção da punibilidade que não se confundem. Para que haja, portanto, a possibilidade de persecução criminal desses crimes é necessário afastar tanto a incidência da anistia, quanto a incidência da prescrição. Em outras palavras, o afastamento de um instituto não implicará o do outro. Foi por isso, inclusive, que alguns Ministros do STF desqualificaram a discussão a 23 No seu voto, que foi acompanhado pela maioria dos demais Ministros, Eros Grau registrou que: "A Lei n. 6.683 é uma lei-medida, não uma regra para o futuro, dotada de abstração e generalidade. Há de ser interpretada a partir da realidade no momento em que foi conquistada. (...) A Constituição não recebe, certamente, leis em sentido material, abstratas e gerais, mas não afeta, também certamente, leis-medida que a tenham precedido". (BRASIL. Supremo Tribunal Federal. Ação de Descumprimento de Preceito Fundamental Nº 153/DF. Arguente: Conselho Federal da Ordem dos Advogados do Brasil. Arguidos: Presidente da República e Congresso Nacional. Relator Ministro Luis Fux. Brasília/DF: 29 de abril de 2010. Disponível em: <http://www.stf.jus.br/portal/geral/verPdfPaginado.asp?id=330654&tipo=TP&descricao=ADPF%2F153> . Acesso em 25 ago. 2013). Como anota em sua obra Emilio Peluso Neder Meyer, o coneito de "lei- medida" foi importado de Erns Fortshoff, que o produziu no contexto da Alemanha pós-Primeira Guerra Mundial, querendo com ele indicar a necessidade da edição de leis com caráter administativo e concreto, ou seja, despidas das características normalmente associadas às "leis-norma", quais sejam a generalidade e a abstração. Conforme salienta Meyer a invocação do conceito pelo Relator Eros Grau é inadequada por três razões: 1) por pretender dar um tratamento não normativo à violação de direitos fundamentais causada pela anistia aos agentes da ditadura que praticaram crimes de lesa-humanidade (afetando neste caso os direitos das vítimas), o que quer dizer que mesmo que a categoria lei-medida pudesse se manter de pé, ela certamente não poderia ser aplicada a uma lei de anistia; 2) pelo fato de que mesmo que se pudesse admitir como correta a existência de uma "lei-medida" ela não poderia ficar à margem do controle de constitucionalidade das leis em geral (o que ficou consignado na própria jurisprudência do STF na MC-ADI Nº 4.048-1/DF, julgada em 14 de maio de 2008, em voto majoritário do Ministro Gilmar Mendes e que foi, inclusive, seguido pelo Ministro Eros Grau); 3) por restar superado pelos avanços teóricos no campo da hermenêutica e da filosofia da linguagem, especialmente quando busca contrapor uma esfera concreta a outra abstrata da norma. A própria noção gadameriana de applicatio, invocada constantemente pelo Ministro Eros Grau para fundamentar a sua afirmação de que a norma só existe quando interpretada e de que não se deve separar o momento da interpretação do momento da aplicação, já é suficiente para mostrar o desacerto do conceito de "lei-medida", como também serve para evidenciar o contra-senso argumentativo do Ministro em voltar-se contra suas próprias teses ao recomendar que uma lei seja interpretada não com os olhos do presente mas com os olhos da época, como se fosse possível abstrair do que se sabe hoje e contemplar os fatos como se estivéssemos postados em um momento e local já ultrapassados por nossas próprias experiências. Ver: MEYER, Emilio Peluso Neder. Ditadura e Responsabilização - elementos para uma justiça de transição no Brasil. Belo Horizonte: Arraes, 2012. p.68-75; e também: SILVA FILHO, José Carlos Moreira da . O Julgamento da ADPF 153 pelo Supremo Tribunal Federal e a Inacabada Transição Democrática Brasileira. In: Wilson Ramos Filho. (Org.). Trabalho e Regulação - as lutas sociais e as condições materiais da democracia. Belo Horizonte- MG: Fórum, 2012, v. 1, p. 129-177. respeito do alcance da anistia, sustentando a inequívoca incidência da prescrição. O Ministro Marco Aurélio fez constar em seu voto que a discussão trazida pela ADPF Nº 153 era estritamente acadêmica e serviria apenas para ficar nos Anais do Tribunal. Na análise dos julgamentos das extradições, é possível perceber que o STF manifestou-se no sentido de reconhecer a não incidência da prescrição nos crimes de sequestro (desaparecimento forçado) praticados pelos estrangeiros Manuel Cordeiro Piacentini, Norberto Raul Tozzo e Cláudio Vallejos. Nesses casos, como não estava ainda previsto na legislação penal brasileira o crime de desaparecimento forçado, o STF entendeu que a conduta criminosa imputada aos extraditandos era análoga à figura do sequestro, esta sim já prevista na legislação brasileira, e que, portanto, como até os dias presentes não se revelou o paradeiro das vítimas, o crime é permanente, não tendo havido ainda o início da contagem do prazo prescricional. O precedente deu embasamento aos Embargos Declaratórios interpostos contra a decisão proferida na ADPF Nº 15324, já que raciocínio semelhante foi adotado pela própria Corte Interamericana de Direitos Humanos na condenação do Brasil no Caso Gomes Lund, na qual aceitou-se a ingerência da Corte sobre a responsabilidade dos crimes praticados pelos agentes da ditadura na Guerrilha do Araguaia, visto que embora a jurisdição da Corte só tenha sido aceita pelo Brasil em 1992, quase 20 anos após a Guerrilha do Araguaia, ela incide sobre crimes que embora iniciados no passado ainda continuam sendo praticados após a data da adesão, ou seja, são crimes permanentes25. A tese levantada nos Embargos Declaratórios é a de que sobre crimes permanentes 24 No momento da redação deste artigo, os Embargos Declaratórios seguem pendentes de apreciação. De todo modo, é interessante identificar a breve manifestação na EXT Nº 1150, cujo julgamento ocorreu após o da ADPF Nº 153, do novo Relator, Ministro Luis Fux, que substituiu o Ministro Eros Grau após a sua aposentadoria. Está ela a indicar alguma possível reviravolta na decisão do STF diante da ADPF Nº 153? Só o futuro dirá. Disse o Ministro Luis Fux no início do seu voto: "(...) esse é um momento importante para a minha geração, porque esse Massacre de Margarita Belén foi exatamente um evento político que marcou muito a minha juventude, assim como também a bomba do Riocentro e todos esses eventos que se encaixam bem na advertência de um poeta latino de que 'Quando não lembramos o que nos aconteceu, pode vir a acontecer tudo outra vez'" (BRASIL. Supremo Tribunal Federal. Extradição Nº 1150. Requerente: Governo da República Argentina. Extraditando: Norberto Raul Tozzo. Relatora Ministra Carmem Lúcia. Brasília/DF: 19 de maio de 2011. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=624223>. Acesso em 25 ago. 2013). O ex-major argentino Norberto Raul Tozzo, o extraditando em questão, foi acusado na Argentina de ter comandado o conhecido Massacre de Margarita Belén, no qual 22 jovens peronistas foram torturados e fuzilados. 25 Essa também tem sido a tese adotada pelo Ministério Público Federal após a condenação do Brasil pela Corte Interamericana de Direitos Humanos, o que tem rendido um conjunto de acões interpostas pelo MPF que visam a responsabilização de agentes da ditadura responsáveis por desaparecimentos forçados, tais como Sebastião Curió, Carlos Alberto Brilhatne Ustra, Dirceu Gravina, Lício Maciel, entre outros. não incide a prescrição, logo, haveria possibilidade de haver julgamentos no Brasil pelos sequestros e ocultações de cadáveres cometidos pelos agentes militares. Ocorre que o afastamento da prescrição, como também já foi apontado, não é o suficiente: é preciso afastar a anistia. Aliás, nos julgamentos das extradições referidas no presente estudo, o STF só reconheceu a não incidência da prescrição nos crimes de caráter permanente depois de considerar o afastamento dos indultos dos quais tinham se beneficiado os extraditandos. Assim, revela-se imprescindível – no caso brasileiro – afastar a incidência da anistia de 1979. O argumento que tem recebido acolhida por grande parte dos que lutam pela responsabilização dos agentes que cometeram crimes de lesa-humanidade durante o regime militar é o de que o caráter permanente de alguns crimes inviabilizaria a sua anistia. Concretamente, observando a realidade brasileira, essa construção pretende questionar a possibilidade de uma lei de anistia (que traz determinado um período certo de tempo dentro do qual ocorreram as condutas criminosas anistiadas) atingir crimes de caráter permanente, que continuam acontecendo – já que sua consumação se prolonga no tempo – até os dias de hoje. Diante dos argumentos utilizados pelo STF para negar o pedido constante da ADPF 153, é possível que a tese dos crimes permanentes não seja acolhida26. Por fim, vale apontar a inverossimilhança de três teses veiculadas pelos Ministros do STF no julgamento da ADPF 153. Em primeiro lugar, destaque-se a sustentação do Ministro Cezar Peluso de que não houve tentativas de responsabilização dos agentes da ditadura. Procurou-se mostrar no início desse trabalho que nas ocasiões em que o Estado brasileiro, via provocação do Poder Judiciário, foi chamado a promover a responsabilização desses crimes, a anistia de 1979 representou um obstáculo intransponível. Aliás, como foi possível constatar, a Lei de Anistia inviabilizou inclusive a persecução de crimes cometidos após 1979. Não faltou oportunidade para que o Poder Judiciário promovesse a punição dos crimes de lesa-humanidade, faltaram órgãos jurisdicionais suficientemente comprometidos nesses casos com os valores da Constituição de 1988 e o com os compromissos assumidos perante o Direito 26 Ainda que possa parecer estranho considerar anistiado um crime que continua a ocorrer, o que seria uma hipótese curiosa de anistia para o futuro, é possível que o STF adote a tese de que como a anistia teria excluído a ilicitude do ato inicial, não caberia arguir a ilicitude da sua continuidade, daí a importância em realmente se afastar a incidência da lei de anistia para os crimes de lesa-humanidade, em geral, praticados pelos agentes ditatoriais. Internacional, aos quais o país está legalmente submetido. Um outro ponto que merece atenção é a convalidação, pelo STF, de um suposto acordo bilateral que teria sido firmado entre o regime autoritário e a sua oposição. Nos termos desse acordo, aqueles que golpearam a Constituição de 1946 e tomaram o poder pela força permitiriam que os civis reassumissem o governo desde que os crimes cometidos pelos primeiros (crimes de lesa-humanidade) fossem perdoados. A declaração da Ministra Ellen Gracie em seu voto na ADPF Nº 153 não deixa dúvidas: Não se faz transição, ao menos não se faz transição pacífica, entre um regime autoritário e uma democracia plena, sem concessões recíprocas. Por incômodo que seja reconhecê-lo hoje, quando vivemos outro e mais virtuoso momento histórico, a anistia inclusive daqueles que cometeram crimes nos porões da ditadura, foi o preço que a sociedade brasileira pagou para acelerar o processo pacífico de redemocratização(...)” 27. Assim, o STF confirmou a legitimidade da pretensão dos que vislumbraram uma troca: entrega-se a democracia desde que se desconsidere alguns direitos fundamentais. Para além desse questionamento envolvendo a matéria desse acordo – que, data venia, é inaceitável – é preciso lembrar a disparidade de forças existente durante o regime de exceção, que inviabiliza a compreensão de que houve um “acordo”. O pressuposto básico de um acordo – que é a existência de partes minimamente equiparadas - não existiu28. A análise dos acórdãos selecionados neste estudo revela de um lado uma flagrante contradição na jurisprudência da própria Corte, ora realizando o controle de adequação de leis autoritárias anteriores diante da Constituição, como o fez no julgamento da ADPF Nº 130, ora fazendo prevalecer a legislação autoritária anterior, como ocorreu no julgamento da ADPF Nº 153. Este último julgamento, por sua vez, denota uma continuidade no que se refere ao lastro autoritário deixado pelo golpe militar de 1964. 27 BRASIL. Supremo Tribunal Federal. Ação de Descumprimento de Preceito Fundamental Nº 153/DF. Arguente: Conselho Federal da Ordem dos Advogados do Brasil. Arguidos: Presidente da República e Congresso Nacional. Relator Ministro Luis Fux. Brasília/DF: 29 de abril de 2010. Disponível em: <http://www.stf.jus.br/portal/geral/verPdfPaginado.asp?id=330654&tipo=TP&descricao=ADPF%2F153> . Acesso em 25 ago. 2013. 28 Explorando mais amiúde os motivos para a inexistência do alegado acordo, ver: SILVA FILHO, José Carlos Moreira da . O Julgamento da ADPF 153 pelo Supremo Tribunal Federal e a Inacabada Transição Democrática Brasileira. In: Wilson Ramos Filho. (Org.). Trabalho e Regulação - as lutas sociais e as condições materiais da democracia. Belo Horizonte-MG: Fórum, 2012, v. 1, p. 129-177. Se a Constituição de 1988 representou uma ruptura de paradigmas no que diz respeito a muitos assuntos tratados pelos constituintes, o mesmo impacto não ocorreu em matéria de justiça de transição – sobretudo no que se refere ao campo da responsabilização. Para chegar a essa conclusão basta identificar que houve o acolhimento do argumento, por alguns Ministros, de que a Emenda Constitucional Nº 26 de 1985 selava a anistia bilateral, sem que a Constituição de 1988 pudesse romper com ela. O entendimento, portanto, foi de que o Poder Constituinte Originário que deu origem à Constituição de 1988 estava limitado por normas pré-constitucionais, como se verá com mais detalhes no próximo item. 5. O STF e a vinculação do Brasil à Convenção Americana de Direitos Humanos Há outro aspecto crucial no qual o STF demonstra flagrante contradição quando se compara a decisão tomada na ADPF Nº 153 com decisões anteriores que tomou. Tal aspecto é o que sinaliza para a vinculação do Brasil ao Pacto de San Jose da Costa Rica e a sua submissão à jurisdição da Corte Interamericana de Direitos Humanos. Em 25 de setembro de 1992 o Brasil depositou sua carta de adesão à Convenção Americana de Direitos Humanos (Pacto de San José da Costa Rica). Posteriormente, em 10 de dezembro de 1998 o Brasil reconheceu a competência da Corte Interamericana de Direitos Humanos, a ela se submetendo soberanamente. Este fato gerou uma discussão acerca da estatura hierárquica das normas garantidoras de direitos humanos presentes na Convenção mas não explicitadas no texto constitucional. De 05 de outubro de 1988 até a Emenda Constitucional Nº 45, promulgada em 30 de dezembro de 2004, o Art. 5º da Constituição de 1988 trazia apenas dois parágrafos após a enumeração dos incisos definidores de direitos e garantias fundamentais. O § 1º estabeleceu a aplicabilidade imediata e o § 2º estabeleceu o princípio da abertura do catálogo de direitos fundamentais demarcando que os "direitos e garantias expressos nesta Constituição não excluem outros decorrentes do regime e dos princípios por ela adotados, ou dos tratados internacionais em que a República Federativa do Brasil seja parte". A presença solitária desses parágrafos, ainda sem o acréscimo do 3º e 4º 29, que viriam somente com a EC Nº45, criou a dúvida a respeito da 29 O parágrafo 3º do Art. 5º, criado pela EC Nº 45/2004, estabelece que "os tratados e convenções internacionais sobre direitos humanos que forem aprovados, em cada casa do Congresso Nacional, em estatura hierárquica dos direitos e garantias expressos nos tratados internacionais de direitos humanos aos quais o Brasil havia aderido após a promulgação da Constituição, isto porque até então a jurisprudência consolidada do STF era de que os tratados de direitos humanos teriam o status de lei ordinária. Foi em 03 de dezembro de 2008, com a decisão do leading case que discutiu a prisão civil do depositário infiel (HC 87.585/TO30 e RE 466.343/SP) que o posicionamento do STF atingiu um novo patamar sobre o tema do status dos tratados de direitos humanos. A Constituição de 1988 previu em seu Art.5º, LXVII que "não haverá prisão civil por dívida, salvo a do responsável pelo inadimplemento voluntário e inescusável de obrigação alimentícia e a do depositário infiel". Por outro lado, a Convenção Americana de Direitos Humanos estabeleceu em seu Art. 7º que "ninguém deve ser detido por dívidas", excepcionando apenas o caso do devedor alimentar. A solução encontrada pelo STF para dirimir a antinomia clara entre a Convenção e a própria Constituição brasileira tanto nos casos citados acima como em outros que se seguiram31 foi estabelecer duas importantes inovações. A primeira delas significou a mudança da jurisprudência que delimitava a estatura de mera lei ordinária aos tratados de direitos humanos. Vingou na opinião majoritária de 5 Ministros a tese da supralegalidade dos tratados de direitos humanos, isto é, são superiores às leis ordinárias mas inferiores à Constituição, ainda que façam parte de um bloco de constitucionalidade por especificarem direitos fundamentais referidos no texto constitucional. Registre-se que os outros 4 votos demarcavam a teoria do status constitucional dos tratados internacionais de direitos humanos, mesmo no caso de dois turnos, por três quintos dos votos dos respectivos membros, serão equivalentes às emendas constitucionais". Com isto, firmou-se o entendimento de que para um direito ou garantia expresso em um tratado ou convenção internacional de direitos humanos, firmado pelo país após a entrada em vigor da EC Nº 45, possa gozar do status constitucional ele deve passar pelo mesmo processo legislativo pelo qual passa uma Emenda Constitucional. Já o parágrafo 4º estabelece que "o Brasil se submete à jurisdição de Tribunal Penal Internacional a cuja criação tenha manifestado adesão". 30 BRASIL. Supremo Tribunal Federal. Habeas Corpus Nº 87.585/TO. Paciente: Alberto de Ribamar Ramos Costa. Coator: Superior Tribunal de Justiça. Relator Ministro Marco Aurélio Mello. Brasília/DF: 03 de dezembro de 2008. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=597891>. Acesso em 25 ago. 2013; BRASIL. Supremo Tribunal Federal. Habeas Corpus Nº 466.343/SP. Recorrente: Banco Bradesco S/A. Recorrido: Luciano Cardoso Santos. Relator Ministro Cézar Peluso. Brasília/DF: 03 de dezembro de 2008. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=595444>. Acesso em 25 ago. 2013. 31 O posicionamento adotado acabou por gerar a Súmula 25, a qual prevê que "é ilícita a prisão civil do depositário infiel, qualquer que seja a modalidade de depósito". tratados incorporados antes da EC Nº 45 e, portanto, sem a utilização do rito que passou a ser previsto no Art. 5º, §3º. Muito embora sejam mais aceitáveis sob o ponto de vista da coerência na busca de uma ordem jurídica cada vez mais forte na promoção e proteção dos direitos humanos tanto a tese do status constitucional quanto a da supraconstitucionalidade (os tratados de direitos humanos valem mais do que a própria Constituição), o STF optou pela via da supralegalidade. Ao menos avançou em relação à jurisprudência anterior. De todo modo, a adoção da supralegalidade dos tratados de direitos humanos não impediu no caso da prisão do depositário infiel que se desse preferência à Convenção Americana de Direitos Humanos em relação à Constituição brasileira. E esta é a segunda inovação. O fundamento adotado para tanto foi o princípio da aplicação da norma mais favorável em direitos humanos, ainda que em um engenho de argumentação se tenha estabelecido que tal predomínio não necessariamente revoga a norma constitucional restritiva mas impede que norma infraconstitucional lhe dê eficácia. Desse modo, ao mesmo tempo em que o STF afirmou que a Constituição vale mais que o tratado, assegurou que o tratado valesse mais do que qualquer lei ordinária e que no caso de norma mais favorável impedisse a regulamentação de dispositivo constitucional restritivo, prevalecendo inclusive sobre norma constitucional originária. Tal posicionamento causa espécie quando se vislumbra a decisão do STF sobre o status da lei de anistia de 1979. A suprema corte brasileira, embora não o declare explicitamente na decisão da ADPF Nº 153, conferiu prevalência à Lei Nº 6683/1979, especialmente em seu Art.1º, §1º, dispositivo que trata dos "crimes conexos" e que em interpretação predominante até aqui anistia agentes da ditadura que praticaram crimes de lesa humanidade, tanto sobre a Constituição de 1988 como sobre a Convenção Americana e a jurisprudência da Corte Interamericana sobre ela. E corre o risco de fazê- lo também em relação à decisão tomada pela Corte Interamericana de Direitos Humanos no Caso Gomes Lund, a depender da apreciação dos Embargos Declaratórios interpostos pela OAB na ADPF Nº 153, e que até a redação deste artigo seguiam pendentes de decisão. Tratando primeiramente da Constituição republicana de 1988, deve ser repudiada qualquer tentativa de vincular a soberania da constituinte a uma norma construída na ordem jurídica anterior, de perfil autoritário e ditatorial, mesmo que tenha sido uma norma que serviu para iniciar o processo constituinte como o foi a EC Nº 26/1985. Além da Lei Nº 6683/1979, a referida Emenda, em seu Art.4, §1º, também estabeleceu a anistia aos crimes conexos32. É preciso ter claro, contudo, que esta última norma emendou a Constituição anterior, a de 1969, instituída de modo autoritário em plena ditadura, pertencendo portanto à ordem jurídica instaurada de modo ilegítimo pelo golpe de 1964. Ao contrário do que defenderam o Ministro Eros Grau e o Ministro Gilmar Mendes em seus respectivos votos na ADPF 153, quaisquer condições impostas pela ordem constitucional anterior não podem ser tomadas como efetivas e limitadoras do poder constituinte originário, especialmente quando essa ordem anterior é autoritária. Assim, as disposições sobre anistia que constam na EC Nº 26/1985, bem como as que estão na Lei Nº 6683/79 só devem vincular a nova ordem naquilo que não sejam com ela incompatíveis. Ao contrário, a Constituição de 1988 deixou bem claros os seus pressupostos axiológicos e principiológicos quanto ao tema. Em seu Art.1º, III estabelece a dignidade da pessoa humana como fundamento da República; em seu Art. 4º, II estabelece que a República rege-se nas suas relações internacionais pelo princípio da prevalência dos direitos humanos; em seu Art.5º, XLIII prevê que a tortura é crime inafiançável e insuscetível de graça ou anistia33; e, finalmente, no Ato das Disposições Constitucionais Transitórias em seu Art. 8º menciona que "é concedida anistia aos que, no período de 18 de setembro de 1946 até a data da promulgação da Constituição, foram atingidos, em decorrência de motivação exclusivamente política, por atos de exceção, institucionais ou complementares", ou seja, nenhuma palavra em toda a longa extensão do texto constitucional sobre anistia a crimes conexos ou de qualquer natureza. Veja-se que quando se fala em anistia na Constituição de 1988 ela é direcionada para os que foram perseguidos políticos e não para os que realizaram esta perseguição, sem falar 32 Importante salientar que na EC Nº 26/1985 não foi reproduzida a enigmática definição do que seriam crimes conexos e que consta no Art.1º, §1º da Lei Nº 6683/1979, a saber: "Consideram-se conexos, para efeito deste artigo, os crimes de qualquer natureza relacionados com crimes políticos ou praticados por motivação política". 33 É verdade que o crime de terrorismo também é mencionado no mesmo dispositivo, mas antes que alguma análise mais apressada sugira que os participantes da luta armada contra a ditadura possam ser aí enquadrados, é preciso reconhecer dois fatos: que não há até os dias atuais qualquer tipificação do crime de terrorismo, seja na ordem jurídica interna, seja na ordem internacional, e que aqueles que pegaram em armas contra a ditadura não praticaram terrorismo mas sim exerceram o seu legítimo direito de resistência, colocado em prática exatamente para combater o terrorismo de Estado (sobre isto ver: SILVA FILHO, José Carlos Moreira da. O terrorismo de Estado e a ditadura civil-militar no Brasil: direito de resistência não é terrorismo. Revista Anistia Política e Justiça de Transição, Ministério da Justiça, n.5, jan/jul 2011, Brasília, p.50-74). que é explicitamente vedada no caso de crimes de tortura. É verdade que esta última previsão se volta aos casos posteriores a 1988, mas indica de todo modo o repúdio da nova ordem a atos de anistia voltados para este tipo de crime. Quanto à prevalência dos direitos humanos na ordem internacional, prevista no Art.4º, II da Constituição, depreende-se daí que a orientação a ser tomada deveria ser a mesma adotada no caso da vedação da prisão do depositário infiel, ou seja a de que os tratados de direitos humanos prevaleçam sobre qualquer norma da ordem jurídica interna que restrinjam os direitos e garantias ali previstos, ainda mais quando a norma colidente seja uma lei ordinária editada na ordem constitucional anterior. Em trecho didático da sentença prolatada pela Corte Internacional de Direitos Humanos no Caso Gomes Lund, que condenou o Brasil em relação aos crimes praticados pela ditadura durante a Guerrilha do Araguaia34 apresentam-se as violações dos artigos da Convenção que restam existentes enquanto a lei de anistia representar um obstáculo para a apuração e a responsabilização desses crimes: 172. A Corte Interamericana considera que a forma na qual foi interpretada e aplicada a Lei de Anistia aprovada pelo Brasil (...) afetou o dever internacional do Estado de investigar e punir as graves violações de direitos humanos, ao impedir que os familiares das vítimas no presente caso fossem ouvidos por um juiz, conforme estabelece o artigo 8.1 da Convenção Americana, e violou o direito à proteção judicial consagrado no artigo 25 do mesmo instrumento, precisamente pela falta de investigação, persecução, captura, julgamento e punição dos responsáveis pelos fatos, descumprindo também o artigo 1.1 da Convenção. Adicionalmente, ao aplicar a Lei de Anistia impedindo a investigação dos fatos e a identificação, julgamento e eventual sanção dos possíveis responsáveis por violações continuadas e permanentes, como os desaparecimentos forçados, o Estado descumpriu sua obrigação de adequar seu direito interno, consagrada no artigo 2 da Convenção Americana. 173. A Corte considera necessário enfatizar que, à luz das obrigações gerais consagradas nos artigos 1.1 e 2 da Convenção Americana, os Estados Parte têm o dever de adotar as providências de toda índole, para que ninguém seja privado da proteção judicial e do exercício do direito a um recurso simples e eficaz, nos termos dos artigos 8 e 25 da Convenção. Em um caso como o presente, uma vez ratificada a Convenção Americana, corresponde ao Estado, em conformidade com 34A audiência pública foi realizada nos dias 20 e 21 de maio de 2010 e a sentença condenatória, com data de 24 de novembro de 2010, só foi divulgada no dia 14 de dezembro de 2010. Importante registrar que foi somente após o anúncio da data aproximada da audiência pública na Corte IDH é que o STF colocou em pauta a ADPF 153. o artigo 2 desse instrumento, adotar todas as medidas para deixar sem efeito as disposições legais que poderiam contrariá-lo, como são as que impedem a investigação de graves violações de direitos humanos, uma vez que conduzem à falta de proteção das vítimas e à perpetuação da impunidade, além de impedir que as vítimas e seus familiares conheçam a verdade dos fatos. E de modo categórico, conclui a sentença: 174. Dada sua manifesta incompatibilidade com a Convenção Americana, as disposições da Lei de Anistia brasileira que impedem a investigação e sanção de graves violações de direitos humanos carecem de efeitos jurídicos. Em consequência, não podem continuar a representar um obstáculo para a investigação dos fatos do presente caso, nem para identificação e punição dos responsáveis, nem podem ter igual ou similar impacto sobre outros casos de graves violações de direitos humanos consagrados na Convenção Americana ocorridos no Brasil.35 Como se não bastasse a difícil convivência entre o Art. 1º, §1º da Lei Nº 6683/1979, quando interpretado como anistia a crimes de lesa humanidade, com a Constituição de 1988 e a Convenção Americana, há também o choque com a jurisprudência consolidada da Corte Interamericana de Direitos Humanos. Nos casos Barrios Altos36 e La Cantuta37 (Peru) e Almonacid Arelliano e outros38 (Chile) a Corte deixa patente que as anistias são incompatíveis com a Convenção Americana em casos de graves violações de direitos humanos, independentemente, inclusive, de se tratar ou não de auto-anistia ou de se ter ou não algum tipo de acordo neste sentido39. 35 CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Gomes Lund e Outros ("Guerrilha do Araguaia") vs. Brasil. Sentença de 24 de novembro de 2010. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_por.pdf >. Acesso em 25 de ago. de 2013. 36 CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Barrios Alto vs. Peru. Sentença de 14 de março de 2001. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/Seriec_87_esp.pdf>. Acesso em 25 de ago. de 2013. 37CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso La Cantuta vs. Peru. Sentença de 30 de novembro de 2007. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_173_esp.pdf>. Acesso em 25 de ago. de 2013. 38 CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Almonacid Arellano y otros vs. Chile. Sentença de 26 de setembro de 2006. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_154_esp.pdf>. Acesso em 25 de ago. de 2013. 39 Em outro texto procurou-se assinalar que no caso brasileiro o fato de a anistia ter se voltado tanto para perseguidos políticos como para perseguidores não elimina o caráter de auto-anistia da Lei Nº 6683/1979, visto que a anistia aos agentes da ditadura era algo imposto pela ditadura e inegociável. Além disso, argumentou-se igualmente que, para o bem da história, não houve nenhum acordo digno deste nome. Ver: SILVA FILHO, José Carlos Moreira da . O Julgamento da ADPF 153 pelo Supremo Tribunal Federal e a Inacabada Transição Democrática Brasileira. In: Wilson Ramos Filho. (Org.). Trabalho e Regulação - as lutas sociais e as condições materiais da democracia. Belo Horizonte-MG: Fórum, 2012, v. 1, p. 129-177 Ao se submeter à competência da Corte Interamericana de Direitos Humanos em 1998, portanto antes do julgamento da ADPF 153, que se deu apenas em 2010, o Estado brasileiro reconheceu "como obrigatória, de pleno direito e sem convenção especial, a competência da Corte em todos os casos relativos à interpretação ou aplicação desta Convenção" (Art. 62, 1 da Convenção). Complementando, preconiza o Art. 62, 3 da Convenção que a Corte é o órgão competente para "conhecer de qualquer caso, relativo à interpretação e aplicação das disposições desta Convenção, que lhe seja submetido". Ainda, no Art. 68, 1 da Convenção está consignado que os "Estados-partes na Convenção comprometem-se a cumprir a decisão da Corte em todo caso em que forem partes". Surge daí o questionamento sobre o grau de vinculação do STF à jurisprudência da Corte IDH. Há quem afirme que esta vinculação só seria obrigatória caso estivesse expressamente prevista na Constituição ou na Convenção40. Ora, na Constituição de 1988, além do princípio da abertura do catálogo de direitos fundamentais no Art. 5º, §2º, há o Art. 7º do ADCT que prevê que "o Brasil propugnará pela formação de um tribunal internacional dos direitos humanos". Diante disto, é lógico pressupor que uma vez consolidada a submissão do país à jurisdição da Corte, ele deva respeito à sua jurisprudência ou ao menos a leve em consideração, especialmente quando ela está consolidada e representa interpretação mais favorável aos direitos humanos. Afinal o próprio STF já construiu e consolidou jurisprudência interna no sentido da prevalência da norma mais favorável aos direitos humanos. Por que este raciocínio vale para o caso da prisão do depositário infiel e não vale para o caso da anistia aos crimes de lesa humanidade? Importante também lembrar que a Convenção Americana, norma que vincula o Brasil, estabelece que a Corte é o órgão competente para interpretá-la (Art.62, 1 da Convenção). Talvez a única hipótese escusável de não alinhamento à jurisprudência da Corte seja quando ela não indique a interpretação ou norma mais favorável, quando o atendimento do princípio pro homine se dê a partir de interpretação divergente do STF, o que não é o caso, visto que se trata de não estender a anistia a crimes de lesa 40 É a posição sustentada em: VASCONCELOS, Eneas Romero de. O conflito entre Direito nacional e internacional: a jurisprudência da Corte Interamericana de Direitos Humanos vs. a jurisprudência do Supremo Tribunal Federal. Revista Anistia Política e Justiça de Transição, Ministério da Justiça, n.7, jan./jun 2012, Brasília, p.170-200. humanidade. Na ADPF 153 o voto do Ministro Celso de Mello, praticamente o único que menciona a jurisprudência da Corte IDH e a ela dá alguma atenção, tenta justificar a sua decisão favorável à validade da lei de anistia para casos de grave violação de direitos humanos diante da jurisprudência da Corte Interamericana. O seu argumento é que como a lei de anistia foi bilateral não se trata de auto-anistia, o que não resiste a um exame de lógica, pois como já se afirmou, o fato de que a anistia tenha alcançado perseguidos e perseguidores não elimina o fato de que a anistia a esses últimos foi fruto de uma imposição do governo ditatorial. Vê-se nitidamente, porém, que o Ministro não explorou a jurisprudência da Corte e não aprofundou a sua análise à luz do Direito Internacional dos Direitos Humanos, não se sabe porque razão, especialmente quando se aprecia seu rico voto no leading case da ilicitude da prisão do depositário infiel41. E, como já se assinalou acima, em acordo com a jurisprudência da Corte IDH, mesmo que não se tratasse de auto-anistia não seria lícito que ela alcançasse crimes de lesa humanidade. É como restou consignado na sentença da Corte IDH no Caso Gomes Lund: 176. Este Tribunal estabeleceu em sua jurisprudência que é consciente de que as autoridades internas estão sujeitas ao império da lei e, por esse motivo, estão obrigadas a aplicar as disposições vigentes no ordenamento jurídico. No entanto, quando um Estado é parte de um tratado internacional, como a Convenção Americana, todos os seus órgãos, inclusive seus juízes, também estão submetidos àquele, o que os obriga a zelar para que os efeitos das disposições da Convenção não se vejam enfraquecidos pela aplicação das normas contrárias a seu objeto e finalidade, e que desde o início carecem de efeitos jurídicos. O Poder Judiciário, nesse sentido, está internacionalmente obrigado a exercer um "controle de convencionalidade" ex officio entre as normas 41 Afirmou o Ministro em seu voto no HC 87.585 que "a relação de eventual antinomia entre os tratados internacionais em geral (que não versem o tema dos direitos humanos) e a Constituição da República impõe que se atribua, dentro do sistema de direito positivo vigente no Brasil, irrestrita precedência hierárquica à ordem normativa consubstanciada no texto constitucional, ressalvadas as hipóteses excepcionais previstas nos §§2º e 3º do art. 5º da própria Lei Fundamental, que conferem hierarquia constitucional aos tratados internacionais de direitos humanos. (...) É preciso ressalvar, no entanto, como precedentemente já enfatizado, as convenções internacionais de direitos humanos celebradas antes do advento da EC nº 45/2004, pois, quanto a elas incide o §2º do art. 5º da Constituição, que lhes confere natureza materialmente constitucional, promovendo sua integração e fazendo com que se subsumam à noção mesma de bloco de constitucionalidade" (BRASIL. Supremo Tribunal Federal. Habeas Corpus Nº 87.585/TO. Paciente: Alberto de Ribamar Ramos Costa. Coator: Superior Tribunal de Justiça. Relator Ministro Marco Aurélio Mello. Brasília/DF: 03 de dezembro de 2008. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=597891>. Acesso em 25 ago. 2013). internas e a Convenção Americana, evidentemente no marco de suas respectivas competências e das regulamentações processuais correspondentes. Nessa tarefa, o Poder Judiciário deve levar em conta não somente o tratado, mas também a interpretação que a ele conferiu a Corte interamericana, intérprete última da Convenção Americana. 177. No presente caso, o Tribunal observa que não foi exercido o controle de convencionalidade pelas autoridades jurisdicionais do estado e que, pelo contrário, a decisão do Supremo Tribunal Federal confirmou a validade da interpretação da Lei de Anistia, sem considerar as obrigações internacionais do Brasil derivadas do Direito Internacional (...)".42 A sentença da Corte IDH no Caso Araguaia, ainda que se queira arguir que a jurisprudência da Corte não vincule o Judiciário brasileiro ou que não imponha a ele ao menos uma obrigação de ser levada em consideração, revela uma vinculação indiscutível desse mesmo judiciário aos termos que condena o Estado do qual faz parte. Qual seria o propósito de o Brasil acatar a jurisdição da Corte se ele pudesse simplesmente desobedecer suas decisões se o seu judiciário assim entendesse? O Poder Judiciário não compõem o Estado? Não está consignado na Convenção que as decisões da Corte devem ser acatadas pelo Estado contra o qual ela se volta? A decisão do STF na ADPF 153, ainda não transitada em julgado, visto que sobre ela ainda pairam Embargos Declaratórios terá de ser revista e o bloqueio da Lei de Anistia afastado. Não há, à luz do Direito Internacional e dos princípios que amparam o Estado Democrático de Direito da República Federativa do Brasil, outra conclusão possível. 6. Considerações finais: A transição política no Brasil ainda está inacabada, mesmo já tendo passado vinte e cinco anos da promulgação da Constituição de 1988. A análise das ações do Estado brasileiro – principalmente no que diz respeito às dimensões da reforma das instituições e da responsabilização – revelam-se insuficientes para que seja possível reconhecer uma ruptura com os paradigmas autoritários instaurados em 1964. A pesquisa sobre as oportunidades que o STF teve de se pronunciar a respeito de temas envolvendo o tema da justiça de transição revela o papel de destaque que assume 42 CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Gomes Lund e Outros ("Guerrilha do Araguaia") vs. Brasil. Sentença de 24 de novembro de 2010. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_por.pdf >. Acesso em 25 de ago. de 2013. o julgamento da ADPF Nº 153. A análise das contradições existentes entre a decisão desse julgamento e dos demais precedentes analisados demonstra que o Egrégio Tribunal proferiu – na ocasião do julgamento da ADPF Nº 153 – uma decisão predominantemente política, com fracos fundamentos jurídicos, que contraria os valores constitucionais vigentes. Certo está que toda decisão de um órgão jurisdicional é – também – uma decisão política. No entanto, a Constituição Federal – que apresenta as escolhas e diretrizes políticas construídas pela Assembleia Constituinte – limita a decisão dos órgãos dos poderes da República, inclusive do Judiciário. É com base naqueles valores elencados na Carta de 1988 que os magistrados devem encontrar a solução para os conflitos trazidos aos tribunais. Quando houve o julgamento da ADPF Nº 153, o STF deu força aos paradigmas que vigoravam no período anterior à instauração do Estado Democrático de Direito, retirando a força imperativa do texto constitucional. A posição adotada pelo STF, é preciso enfatizar, corrobora o entendimento de que a aliança existente durante o regime militar e os órgãos do Poder Judiciário permanece condicionando os avanços dos mecanismos de justiça transicional. Se por um lado a judicialização da repressão política no Brasil – materializada na busca do regime militar em levar a julgamento os seus opositores políticos – diminuiu a ocorrência de penalizações extrajudiciais (em comparação com as ditaduras do Cone Sul) durante o Estado de Exceção, por outro ainda se sofre com a convalidação, por parte de muitos magistrados, do simulacro de legalidade forjado pela ditadura civil-militar brasileira. A responsabilização dos crimes da ditadura sofreu, no julgamento da ADPF Nº 153, substancial prejuízo já que a decisão proferida tem efeito vinculante e eficácia erga omnes. Além disso, o próprio recurso de Embargos Declaratórios que aguarda julgamento já possui a sua esfera de abrangência limitada, uma vez que questiona a possibilidade de persecução criminal apenas dos crimes permanentes – homicídios, torturas, estupros e todos os outros crimes estão, conforme a lógica do “acordo bilateral” - anistiados. Os efeitos dessa postura do Estado brasileiro revelam-se ainda mais perversos: a cultura de impunidade dos crimes de lesa-humanidade faz aumentar – por parte das forças de segurança pública do país – o desrespeito pelos direitos humanos. A lógica do direito penal do inimigo segue fazendo suas vítimas no Estado Democrático de Direito43. Há, ainda nesse cenário, a necessidade de se considerar o fato de que o Brasil deve encontrar um modo de cumprir a condenação que sofreu na Corte Interamericana de Direitos Humanos após o julgamento da ADPF Nº 153 no Caso Gomes Lund. A Corte Interamericana foi taxativa ao reconhecer a nulidade da anistia brasileira e que ela não pode impedir a responsabilização de crimes de lesa-humanidade. Embora alguns Ministros já tenham se pronunciado informalmente defendendo que a Corte Interamericana não é órgão revisor das decisões do STF, o fato é que a questão segue sem solução. O descumprimento da sentença da Corte Interamericana pelo Brasil, em tese, poderia gerar sanções de direito internacional. Não parece que isso seja uma preocupação dos agentes políticos brasileiros. Aliás, tomando como referência os próprios Ministros do STF, a análise dos votos da ADPF Nº 153 revela um grande desprezo por toda a construção acerca do jus cogens, característico das normas de Direito Internacional, atitude contraditória com o próprio posicionamento anterior da Suprema Corte, o que situa a Lei Nº 6.683/1979 como um grande "tabu jurídico" para o Judiciário brasileiro. 7. Referências bibliográficas: ABRÃO, Paulo; TORELLY, Marcelo D. As dimensões da Justiça de Transição no Brasil, a eficácia da Lei de Anistia e as alternativas para a verdade e a justiça. In: ABRÃO, Paulo; PAYNE, Leigh; TORELLY, Marcelo. A Anistia na Era da Responsabilização: o Brasil em perspectiva internacional e comparada. Brasília: Ministério da Justiça, 2010. ABRÃO, Paulo. (Org.) ; VIEIRA, Jose Ribas (Org.) ; LOPES, J. R. L. (Org.) ; TORELLY, M. D. (Org.). Dossiê: o que é justiça de transição? In: Revista Anistia Política e Justiça de Transição, Brasília, n.1, p.31-112, jan.-jun. 2009. Ações Educativas da Comissão de Anistia - relatório de gestão 2007-2010. Brasília: Ministério da Justiça, 2010. AMNISTIA INTERNACIONAL BRASIL. “Entrán Disparando”: La actuación policial em las 43 Afirma relatório da Human Rights Watch que, “Segundo dados oficiais, as polícias dos estados do Rio de Janeiro e de São Paulo mataram juntas um total de mais de 11.000 pessoas desde 2003. Em quase todos esses casos, a polícia relatou que as mortes teriam sido atos de legítima defesa em tiroteios com supostos criminosos. Em São Paulo esses casos são designados por 'resistência seguida de morte' e no Rio conhecidos como 'autos de resistência'. No entanto, uma análise detalhada dos autos, das declarações das autoridades e dados estatísticos sugere de forma contundente que uma parte significativa desses casos são na realidade execuções extrajudiciais” (HUMAN RIGHTS WACTH. Força letal: violência policial e segurança pública no Rio de Janeiro e em São Paulo. 2009. p.27. Disponível em: http://www.hrw.org/sites/default/files/reports/brazil1209ptwebwcover.pdf . Acesso em 25 de ago. de 2013). comunidades socialmente excluidas. Disponível em: http://www.amnesty.org/es/library/asset/AMR19/025/2005/es/d6c16d41-d49c-11dd-8a23- d58a49c0d652/amr190252005pt.html. Acesso em 07/01/2014. ASSUMPÇÃO, Eliane Maria Salgado (org.). O Direito na História: o caso das mãos amarradas. Porto Alegre: TRF 4a. Região, 2008. BAGGIO, Roberta Camineiro. Marcas da Memória: a atuação da Comissão de Anistia no campo das políticas públicas de transição no Brasil. In: Ciências Sociais Unisinos, São Leopoldo, Vol. 48, N. 2, p. 111-118, mai/ago 2012. BRASIL. Secretaria Especial dos Direitos Humanos. Comissão Especial sobre Mortos e Desaparecidos Políticos. Direito à verdade e à memória. Brasília: Secretaria Especial dos Direitos Humanos, 2007. BRASIL. Supremo Tribunal Federal. Ação de Descumprimento de Preceito Fundamental Nº 153/DF. Arguente: Conselho Federal da Ordem dos Advogados do Brasil. Arguidos: Presidente da República e Congresso Nacional. Relator Ministro Luis Fux. Brasília/DF: 29 de abril de 2010. Disponível em:<http://www.stf.jus.br/portal/geral/verPdfPaginado.asp?id=330654&tipo=TP&descricao=A DPF%2F153>. Acesso em 25 ago. 2013. BRASIL. Supremo Tribunal Federal. Ação de Descumprimento de Preceito Fundamental Nº 130/DF. Arguente: Partido Democrático Trabalhista. Arguidos: Presidente da República, Congresso Nacional, Federação Nacional dos Jornalistas Profissionais, Associação Brasileira de Imprensa e Artigo 19 Brasil. Relator Ministro Carlos Ayres Britto. Brasília/DF: 30 de abril de 2009. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=605411>. Acesso em 25 ago. 2013. BRASIL. Supremo Tribunal Federal. Extradição Nº 974. Requerente: Governo da República Argentina. Extraditando: Manoel Cordeiro Piacentini. Relator Ministro Marco Aurélio Mello; Relator p/ acórdão Ministro Ricardo Lewandowski. Brasília/DF: 06 de agosto de 2009. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=606492>. Acesso em 25 ago. 2013. BRASIL. Supremo Tribunal Federal. Extradição Nº 1150. Requerente: Governo da República Argentina. Extraditando: Norberto Raul Tozzo. Relatora Ministra Carmem Lúcia. Brasília/DF: 19 de maio de 2011. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=624223>. Acesso em 25 ago. 2013. BRASIL. Supremo Tribunal Federal. Extradição Nº 1278. Requerente: Governo da República Argentina. Extraditando: Claudio Vallejos. Relator Ministro Gilmar Mendes. Brasília/DF: 18 de setembro de 2012. Disponível em <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=2875328>. Acesso em 25 ago. 2013. BRASIL. Supremo Tribunal Federal. Habeas Corpus Nº 87.585/TO. Paciente: Alberto de Ribamar Ramos Costa. Coator: Superior Tribunal de Justiça. Relator Ministro Marco Aurélio Mello. Brasília/DF: 03 de dezembro de 2008. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=597891>. Acesso em 25 ago. 2013. BRASIL. Supremo Tribunal Federal. Habeas Corpus Nº 466.343/SP. Recorrente: Banco Bradesco S/A. Recorrido: Luciano Cardoso Santos. Relator Ministro Cézar Peluso. Brasília/DF: 03 de dezembro de 2008. Disponível em: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=595444>. Acesso em 25 ago. 2013. COELHO, Maria José H.; ROTTA, Vera (orgs.). Caravanas da Anistia: o Brasil pede perdão. Brasília: Ministério da Justiça; Florianópolis: Comunicação, Estudos e Consultoria, 2012. CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Gomes Lund e Outros ("Guerrilha do Araguaia") vs. Brasil. Sentença de 24 de novembro de 2010. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_por.pdf >. Acesso em 25 de ago. de 2013. CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Barrios Alto vs. Peru. Sentença de 14 de março de 2001. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/Seriec_87_esp.pdf>. Acesso em 25 de ago. de 2013. CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso La Cantuta vs. Peru. Sentença de 30 de novembro de 2007. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_173_esp.pdf>. Acesso em 25 de ago. de 2013. CORTE INTERAMERICANA DE DIREITOS HUMANOS. Caso Almonacid Arellano y otros vs. Chile. Sentença de 26 de setembro de 2006. Disponível em: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_154_esp.pdf>. Acesso em 25 de ago. de 2013. FAORO, Raymundo. A República inacabada. São Paulo: Globo, 2007. FILHO, Vladimir Brega; SANTOS, Roberto Lima. Os reflexos da “judicialização” da repressão política no Brasil no seu engajamento com os postulados da justiça de transição. In: Revista Anistia Política e Justiça de Transição. Brasília: Ministério da Justiça, n.1, jan-jun, 2009. HUGGINS, Martha Knisely; ZIMBARDO, Philip G.; HARITOS-FATOUROS, Mika. Operários da Violência – policiais torturadores e assassinos reconstroem as atrocidades brasileiras. Brasília: UnB, 2006. HUMAN RIGHTS WACTH. Força letal: violência policial e segurança pública no Rio de Janeiro e em São Paulo. 2009. Disponível em: http://www.hrw.org/sites/default/files/reports/brazil1209ptwebwcover.pdf . Acesso em 07/01/2014. INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE, ICTJ. Parecer tácnico sobre a natureza dos crimes de lesa-humanidade, a imprescritibilidade de alguns delitos e a proibição de anistias. In: Revista Anistia Política e Justiça de Transição. Brasília: Ministério da Justiça, n.1, jan-jun, 2009. JESUS, Maria Gorete Marques de. O crime de tortura e a justiça criminal: um estudo dos processos de tortura na cidade de São Paulo. São Paulo: IBCCRIM, 2010. (Monografias, 55). JOSÉ, Otto. Os torturadores anistiados – como está sendo aplicada a Lei de Anistia. Movimento, São Paulo, abr. 1980 apud TELES, Janaína de Almeida. As disputas pela interpretação da Lei de Anistia de 1979. In: Idéias. São Paulo, n.1, jan./jun., 2010. JUSTIÇA GLOBAL. Execuções Sumárias, Arbitrárias e Extrajudiciais. Uma aproximação da realidade brasileira. Disponível em: http://dhnet.org.br/dados/relatorios/r_jglobal/r_jg_exec_extra_judiciais1.pdf. Acesso em 07/01/2014 JUSTIÇA GLOBAL. Segurança, Tráfico e Milícias no Rio de Janeiro. Disponível em: http://global.org.br/wp-content/uploads/2009/12/Relatorio_Milicias_completo.pdf . Acesso em 07/01/2014. MEYER, Emilio Peluso Neder. Ditadura e Responsabilização - elementos para uma justiça de transição no Brasil. Belo Horizonte: Arraes, 2012. p.68-75. NAÇÕES UNIDAS – Conselho de Segurança. O Estado de Direito e a justiça de transição em sociedades em conflito ou pós-conflito. Relatório do Secretário Geral S/2004/616. In: Revista Anistia Política e Justiça de Transição, Brasília, n.1, p.320-351, jan.-jun. 2009. p.325. NUCLEO DE ESTUDOS DE CIDADANIA, CONFLITO E VIOLÊNCIA (UFRJ). “Autos de" resistência: uma análise dos homicídios cometidos por policiais na cidade do Rio de Janeiro (2001-2011). Disponível em: http://www.necvu.ifcs.ufrj.br/images/Relatorio%20final%20Autos%20de%20Resist%C3%AAn cia.pdf Acesso em: 07/01/2014 OLSEN, Tricia D.; PAYNE, Leigh; REITER, Andrew G. As implicações políticas dos processos de anistia. In: ABÃO, Paulo; PAYNE, Leigh; TORELLY, Marcelo. A Anistia na Era da Responsabilização: o Brasil em perspectiva internacional e comparada. Brasília: Ministério da Justiça, 2010. OLSEN, Tricia D.; PAYNE, Leigh; REITER, Andrew G. Transitional Justice in Balance - comparing processes, weighing efficacy. Washington, D.C.: United States Institute of Peace Press, 2010. PAIXÃO, Cristiano. A constituição em disputa: transição ou ruptura? In: SEELAENDER, Airton (Org.) História do Direito e construção do Estado. São Paulo: Quartier Latin, 2012. no prelo. PEREIRA, Antrhony W. Ditadura e repressão: o autoritarismo e o estado de direito no Brasil, no Chile e na Argentina. São Paulo: Paz e Terra, 2010. RIO GRANDE DO SUL. Tribunal de Justiça. Câmara Criminal Especial. Recurso Crime n.16.336. Negado provimento em 01/10/1975. Relator: Cristovam Daiello Moreira. SANTOS, Roberto Lima; BREGA FILHO, Vladimir. Os reflexos da "judicialização" da repressão política no Brasil no seu engajamento com os postulados da justiça de transição. In: Revista Anistia Política e Justiça de Transição. Brasília, n.1, p.152-177, jan./jun. 2009. SIKKINK, Kathryn. The Justice Cascade - how human rights procesutions are changing world politics. New York, London: W.W. Norton & Company, 2011. SIKKINK, Kathryn. WALLING, Carrie Booth. The impact of human rights trials in Latin America. Journal of Peace Research, Los Angeles, London, New Delhi, Singapore, vol.44, n.4, 2007, p.427-445. SILVA FILHO, José Carlos Moreira da . O Julgamento da ADPF 153 pelo Supremo Tribunal Federal e a Inacabada Transição Democrática Brasileira. In: Wilson Ramos Filho. (Org.). Trabalho e Regulação - as lutas sociais e as condições materiais da democracia. Belo Horizonte-MG: Fórum, 2012, v. 1, p. 129-177. SILVA FILHO, José Carlos Moreira da. O terrorismo de Estado e a ditadura civil-militar no Brasil: direito de resistência não é terrorismo. Revista Anistia Política e Justiça de Transição, Ministério da Justiça, n.5, jan/jul 2011, Brasília, p.50-74. SILVA FILHO, José Carlos Moreira da . Crimes do Estado e Justiça de Transição. Sistema Penal & Violência, v. 2, p. 22-35, 2010. SOARES, Inês Virgínia Prado; KISHI, Sandra Akemi Shimada (coords.). Memória e verdade – a justiça de transição no estado democrático de direito. São Paulo: Fórum, 2009. SYKES, Gresham M.; MATZA, David. Techniques of neutralization: a theory of delinquency. In: American Sociological Review, n.22, 1957, p.664-670. VASCONCELOS, Eneas Romero de. O conflito entre Direito nacional e internacional: a jurisprudência da Corte Interamericana de Direitos Humanos vs. a jurisprudência do Supremo Tribunal Federal. Revista Anistia Política e Justiça de Transição, Ministério da Justiça, n.7, jan./jun 2012, Brasília, p.170-200. ZAFFARONI, Eugenio Raul. La palabra de los muertos - conferencias de criminologia cautelar. Buenos Aires: EDIAR, 2011. 
work_fm5bfayekfbmxarolod7doc3gq	----	L A N G U A G E P L A N N İN G : H E G E M O N Y OR S O C İA L J U S T IC E ? Kutlay Y ağmur M iddle E ast Technical University The practices of Language Planning and Policy Making is highly polemical in multilingual communities. In this paper we will examine Language Planning in terms of the principles of "Language Rights" and "Language Hegemony". The issues discussed in this paper are widespread throughout the world. IN T R O D U C T I O N In this p ap er we are going to review two articles in relation to L anguage Planning and L a n g u a g e R ights' in the U nited States o f A m erica, C alifornia. In these two opposing articles, 'for' and 'against' argum ents are raised in relation to the latest 'E n g lish L an g u ag e A m en d m en t/ P roposition 63' in C alifo rn ia. W hile E duardo H e rn a n d e z -C h a v e z l (1988) raises issues against Proposition 63, C onnie D yste^ (1989) argues m ainly for the Proposition. In the history o f m ultilingual societies, the struggle for survival o f the m inority languages against the dom inance o f the m ajority language is a never ending story and U nited States is a typical exam ple for that situation. In this struggle L anguage Planning and Policy M aking plays an im portant role in the structure o f pow er and (in )eq u ality th ro u g h o u t the w orld, especially in m u ltilin g u al so cieties like the U .S.A ., C anada, A ustralia, U.K., and form er U SSR. L an g u ag e P lan n in g is defined by T ollefson^ (1991) as the p lanners' conscious efforts to influence the structure or function o f language/s. These deliberate efforts m ight involve language purification, language revival (H ebrew ), language reform (Turkish), language standardization (Swahili), and language m odem ization (Swedish) 1 Hemandez-Chavez, E. 1988. 'Language Policy and Language Rights in the United States' in T. Skutnabb-Kangas & J. Cummins (eds.) Minority Education: From Shame to Struggle. Clevedon: Multilingual Matters. ^Dyste, C. 1989. 'Proposition 63: The California English Language Amendment', Applied Linguistics, 10-3. ■^Tollefson, J.W. 1991. Planning Language, Planning Inequality. London: Longman. Dilbilim Araştırmaları 1995 97 (E astm an, 1983)*. Therefore language planning practices are view ed from different perspectives in m onolingual and m ultilingual societies. It is clear that depending on the situation in a country or in a speech com m unity language planning m ay take different forms. O n the o th er hand, L an g u ag e P olicy is defin ed as "the in s titu tio n a liz a tio n o f lan g u ag e as a basis for d istin ctio n s am ong soeial groups o r elasses" (T o llefso n , 1991). L a n g u ag e p o lic y is seen as a m e c h a n ism fo r the e s ta b lis h m e n t o f "hegem ony" by the dom inant group/s. A s claim ed by A pple and M u y s k e n ^ (1987), language planning does not take place in a soeial vacuum . It is affected by m any facto rs like: so e ia l d em o g ra p h ic fa c to r s im plicating the n u m b er o f lan g u ag e s spoken, the num ber o f their speakers, geographical distribution; linguistic fa c to r s im p lic a tin g the status o f th e lan g u ag e /s (degree o f in tern atio n al use, literary tradition, ete.); the so cio -p sych o lo g ica l fa c to r s concerning the attitudes o f people tow ards a language, soeial m eanings attached to various languages; the p o litic a l fa c t o r s w hich are the m ost influential in language planning; and fınally, relig io u s fa c to r s the use o f local languages in the spread o f religion, for instance, the spread o f A rabic through İslam (W ardhaugh, 1987)3. x h o se five factors proposed by A pple & M uysken (1987: 56-57) are pertaining to 'Status planning' (decision procedures) but it is only the first step in language planning as there are also C orpus P la n n in g (C odifıcation and Standardization procedures); im plem entation (educational spread); and fınally, Elaboration (functional development). O n the other hand, K aplan (cited in B ald au f 1988: 16)^ points out that language plan n in g is alw ays open to the influence o f key individuals, bureaucratic struetures and in stitu tio n s, w hich act as 'intervening variables' in the lan g u ag e p la n n in g p ro c e s s. S om e o f those v a ria b le s are stated as p erceiv ed eco n o m ic d em an d , in stru m en tal benefits (source o f inform ation, scientific ex ch an g e), n atio n alism , e th n ic id e n tity , relig io n , h isto rical facto rs, the gro w th o f u rb a n iz a tio n , and b u reau cracies and education (B aldauf, 1988). L ike A pple & M u y sk en 's fa c to r s , K ap lan 's in terven in g v a ria b le s relate very closely to status plan n in g (decision procedures). ̂Eastman, C. 1983. Language Planning: An Introduction. San Francisco: Chandler & Sharp. ■^Appel, R. & P. Muysken. 1988. Language Contact and Bilingualism. London: Edward Amold. ^Wardhaugh, R. 1987. Languages in Competition: Dominance, Diversity, and Decline. London: Basil Blackwell. ^Baldauf, R.B. & A. Luke. 1988. Language Planning and Education in Australasia and the South Pacific. Clevedon: Multilingual Matters. 98 Yağmur H o w ev er, o u r m ain co n cern w ill be d e m o n stra tin g the m an ip u lab le nature o f language as it is subject to social and political pressures. T he articles chosen for this discussion illustrate the H egem onic P rin cip le o f language planning (D yste, 1989) and Social Jııstice Principle (Hem andez-Chavez, 1988). H egem ony Principle is discussed by T ollefson (1991) along with Skutnabb-K angas (1986)1, anj phillipson (1988)^ from a m inority perspective. Tollefson claim ed that "people who speak the p referred variety d eserve to be in p ositions o f authority a nd p o w e r a n d to control p o litica l and econom ic institutions. (...) To the extetıt that this fe e lin g o f naturalness o f language use becom es pervasive, the dom inant group has established hegem ony, w hich is the su ccessfu lp ro d u ctio n o f ideology." A chievem ent o f hegem ony is m ost con trov ersial in m ultilingual and industrialized societies; w hereas the hegem ony o f certain languages, nam ely English, is not only tolerated by the 'developing' coun tries but also considered a legitim ate m odel for society (T ollefson, 1991). H owever, in countries like the U SA , U.K., and A ustralia the struggle o f ethnic groups to m aintain their m other tongue is very closely tied to econom ic and political policies o f those countries. Even though G iles (1977)3 and his follow ers claim that ethnolinguistic vitality o f the groups determ ine the survival o f m in o rity languages, T ollefson (1991) su g g ests that the survival o f m inority languages is not sim ply a function o f the 'internal vitality' o f m inority groups, but ra th e r the stren g th o f the d o m in an t group and the h isto rical con seq u en ces o f hegem ony. Fishm an (1989)^ also com m ents on the m atter that there is no d o u b t in my mirıd that language a n d ethnicity in A m erica can n o t m ake it on their own, in terms o fp u b l ic p o licy a n d at p u b lic expense, both because they are too w eak and also because the opposition to them is ready-made and therefore ever-ready. On the other hand, H ernandez-C havez's (1988) paper calls into question the social- ju s tic e issue o f L anguage Planning m ainly on the hum anitarian grounds. Skutnabb- 1 Skutnabb-Kangas, T. & R. Phillipson. 1986. 'Denial of Linguistic Rights: The New Mental Slavery' paper presented at l l t h VVorld Congress of Sociology, New Delhi, India. -Phillipson, R. 1988. ’Linguicism: structures and ideologies in Linguistic Imperialism' in T. Skutnabb-Kangas & J. Cummins (eds.) Minority Education: From Shatne to Struggle. Clevedon: Multilingual Matters. "Giles, H. (ed.) 1977. Language, Ethnicity and Intergroup Relations. London: Academic Press. ^Fishman, J. 1988. Language & Ethnicity in Minority Sociolinguistic Perspective. Clevedon: Multilingual Matters. Dilbilim Araştırmaları 1995 99 K angas (1986) claim s that "different languages have different p olitical rights, n o t by v ir tu e o f a n y in h e r e n t lin g u istic characteristics, b u t d e p e n d e n t on the p o w e r rela tio n sh ip s betw een the sp ea kers o f those la n g u a g es.” She claim s th at unless m inority languages have offıcial use (as the m edium o f instruction in schools), they will not survive; that is w hy, there has to be legislation openly prom oting m inority languages vvithin a 'm aintenance-oriented' framevvork. Sim ilarly, P hillipson (1989) claim s that L in g u icism is the very threat to L anguage R ights o f m inorities because "the ideologies a n d structures w hich are used to legitimate, effectuate a nd reproduce an urıequal division o fp o w e r and resources between groups are d efined on the basis o f lang u a g e”, th at o f hegem ony. B A C K G R O U N D TO T H E STUD İES U N D ER C O N SID ER A TIO N As sum m arized in detail both by D yste (1989) and H ernandez-C havez (1988), there have been so m any attem pts to regulate the role o f language since C alifornia ceded from M exico to the U .S.A . in 1849. T he Treaty m ade in that tim e p ro m ised that E nglish and S panish w ould be given equal status in the operations o f governm ent and education in that region. H ow ever, after one and a h a lf a century, the E nglish L an g u ag e is ch o sen to be the offıcia l language o f the S tate, w hich is the fırst legislature act in the history o f the U nited State. In other States, E nglish is given a sy m b o lic reco g n itio n ; b u t P ro p o sitio n 63 is an offıcial leg islatio n , the ro le o f w hich is defined as follovvs: It requires the Legislature to take ali steps necessary to ensure that the role o f E nglish as the com m on language o f the State o f C alifornia is p reserved a n d enhanced, a n d to m ake no law which dim inishes o r ignores the role o f E nglish as the com m on language o f the State o f California. (D yste, 1989). H ow ever, the m o st im portant aspect o f the Proposition 63 is that rather than being a top-dow n act, the legislation was initiated by certain pressure groups and voted by the m ajority o f the public on the grounds that E nglish m ust be the only dom inant language in C alifo rn ia. On the o th er hand, as discussed in detail by H ernandez- C havez (1988), in the history o f the U .S.A ., there have been m any cases o f the use o f m inority languages in public places, schools, courts, ete. being banned due to v arious reasons. M ainly in tim es o f crises, banning o f m inority languages and diserim inatory m oves w ere very comm on. 100 Yağmur A r g u m e n ts fo r P r o p o s itio n 63 D y ste (1 9 8 9 ) a rg u es for P ro p o sitio n 63 by cla im in g th at u n le ss E n g lish is g iv en th e o ffic ia l sta tu s, A m e r ic a 's fu tu r e m ig h t be in je o p a r d y due to e th n ic strife. S he gives a long account o f the history o f the argum ents for E nglish to be the o fficial language o f C alifornia. D y ste structures her argum ent around the concept o f N ation al U nity. D yste's argum ent can be sum m arized as follovvs: X the U .S .A . has alvvays been a m o n o lin g u a l, E n g lish -sp e a k in g country; bilingual education and bilingual voting rights threaten dom inant State o f E nglish language by introducing language divisions vvhich vvill gradually displace E nglish; X today's im m igrants' are different from those o f the p ast as they com e from L atin A m erica and A sia and they are unvvilling to learn English; X use o f ethnic languages other than English delays the econom ic, cultural and linguistic assim ilation o f those im m igrants; X m ultilingualism threatens the political and cultural unity o f the U.S.A. A r g u m e n ts A g a in s t P r o p o s itio n 63 In his argum en ts ag ain st P roposition 63, H ernan d ez-C h av ez raises som e issues m ainly on the social ju stice principle and hum anitarian grounds. H e claim s that language on a cultural level is "the sym b o lic expression o f com m unity erıcoding a g ro u p 's values, its folkvvays a n d its history. Socially, language is the m ost p o w erfu l rneans o f in te ra c tio n a n d co m m u n ica tio n ; a n d it is th ro u g h la n g u a g e th a t an individual o r a group seeks and attains participation in society. The denial o f a peo p le's developm ent and use o f its native tongue is thus a d enial o f its participation in society a n d o f its very peoplehood. " H ernandez-C havez defınes language rights as the right o f a people to learn, to keep and use its own language in ali m anner o f public and private affairs and that to do so is a hum an right. Hovvever, he adds, the dom inant group Controls ali the institutions and develops m echanism s to lim it the access o f m inority groups to services, and Dilbilim Araştırmaları 1995 101 oppo rtu n ities av ailable to people. B ecause o f the barriers, he claim s, ethnic group m em bers can not participate in ali m anner o f life; and finally, he adds that since the m inority groups can not attain a level o f proficiency, their right to participate in life and enjoy the sam e rights as others is ignored. He adds th at even if they acquire a high co m p eten ce in the d o m in an t gro u p 's language, som e other barriers to full access will be faced. In his final analysis, H ern an d ez-C h av ez hig h lig h ts the im portance o f b ilin g u al education fo r ethnic groups. H e believes m o th er tongue teaching w ould function as tra n sitio n to E n g lish and the p u rp o se is m o re e ffe c tiv e teac h in g o f E n g lish . H ow ever, he adds, the opponents o f b ilin g u al education claim s that it is sim ply m a in ta in in g the lan g u ag es and cu ltu res o f ethnic m in o rities at p u b lic expense. M o reo v er, he claim s, both the p ro p o n en ts and opp on ents o f bilingual education ignore the fact that learning one's native tongue is a right. Finally, he argues that if the native language has not been developed, the child loses a pow erful m eans o f learning. In short, the child under these con d itio n s is denied the rig h t to an equal ed u catio n al o p p o rtu n ity eq ually as im p o rta n t, the failu re to d ev elo p the hom e lan g u ag e is often a cause o f alienation betvveen children, their parents and their com m unity. C O N C L U S I O N A s we have seen the argum ents fo r and ag ain st can be grouped around the social ju s tic e ’e q u ity ' p rin c ip le and h eg em ony p rin c ip le o f L an g u ag e P lan n in g . T h e argum ents fo r the banning o f m inority languages claim ed that m inority language teaching m ig h t be a potential th reat to th e status o f E nglish vvhich could lead to tu rm o il in th e co u n try , and the only so lu tio n is m ak in g E n g lish the o ffıcia l lan g u ag e o f the State and fo rcin g eth n ic gro u p s to learn E n g lish by b a n n in g languages other than English. T hey also believe that bilingual education is a barrier to full participation and com plete assim ilation for ethnic children. O n the other hand, the argum ents against Proposition 63 claim that speaking one's m o th er to n g u e is a hum an right and the use o f a child's language is som ething to vvhich s/he is m orally entitled to. It is im p o rtan t to note that Proposition 63 passed by a margin of 73 percent to 27 percent vvhich shovvs strong p reference fo r the hegem ony o f English am ong people. People voted and by doing that they announced th at lan g u ag es o th er than E nglish m ust be banned. T he strongest su pporters o f P ro p o sitio n 63 vvere "whites, the less educated, a n d co n serva tiv es; vvhile the opponents w ere H ispanics andA sians, highly educated, and Liberals." It is quite clear that even in a country like the U .S .A ., w here H um an R ig h ts are v alu ed the m ost, languages other than E nglish can be banned. A nd in doin g that th e y c la im e d th a t th e p o lit ic a l a n d c ıılt u r a l u n ity o f th e S t a t e is th r e a te n e d . R E F E R E N C E S A ppel, R. & P. M uysken. 1988. Language C ontact a n d B ilingualism . London: Edward Amold. B aldauf, R. B. & A. Luke. 1988. Language Planning a nd Education in A usîralasia a n d the South Pacific. C levedon: M ultilingual M atters. D yste, C. 1989. Proposition 63: The C alifornia E nglish L anguage A m endm ent, A p p lie d L inguistics, 10-3. E astm an, C. 1983. Language P lanning: A n Introduction. San Francisco: C handler & Sharp. F ishm an, J. 1988. Language & E thnicity in M inority Sociolinguistic P erspective. C levedon: M ultilingual M atters. G iles, H. (Ed.) 1977. Language, Ethnicity, a n d Intergroup Relatiotıs. London: A cadem ic Press. H em andez-C havez, E. 1988. 'Language Policy and L anguage R ights in the U nited States' in T. Skutnabb-K angas & J. C um m ins (Eds.) Minority- E ducation: F rom Sham e to Strııggle. Clevedon: M ultilingual M atters. Skutnabb-K angas. T. & R. Phiilipson. 1986. 'Denial o f L inguistic R ights: T he N ew M ental Slavery' paper presented at 1 lth W orld C ongress o f Sociology, Nevv Delhi, India. T ollefson, J.W . 1991. Planning Language, Planning Inequality. London: L ongm an. W ardhaugh, R. 1987. Languages in Competition: D om inance, D iversity, a nd D ecline. London: Basil Blackvvell. 102 Yağmur 
work_fokf7zqunzc4njukukslvbeboa	----	10.1177/1059601104265054 ArticleGROUP & ORGANIZATION MANAGEMENTFoley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE Perceptions of Discrimination and Justice ARE THERE GENDER DIFFERENCES IN OUTCOMES? SHARON FOLEY Drexel University NGO HANG-YUE The Chinese University of Hong Kong ANGELA WONG The Chinese University of Hong Kong This article examines the relationship among perceived gender discrimination, organizational justice, and work-related attitudes (i.e., job satisfaction, organizational commitment, and inten- tions to leave) for a sample of Protestant clergy in Hong Kong. The moderating role of gender on the relationship is also explored. The results of regression analysis showed that (a) justice and discrimination perceptions were significantly related to job attitudes; (b) compared to men, women who perceived more gender discrimination had a lower level of organizational commit- ment; (c) compared to women, men who perceived more distributive justice had a higher level of job satisfaction; and (d) perceptions of justice influenced intentions to leave through their impact on job satisfaction and organizational commitment. Theoretical and practical implications are discussed. Keywords: gender discrimination; organizational justice; job attitudes; gender differences During the past decade, increasing research attention has been paid to per- ceived injustice and discrimination in management literature. Both per- ceived injustice and perceived discrimination are found to be associated with some negative outcomes. For example, perceived procedural injustice has been positively linked to retaliation against the organization (Skarlicki & Folger, 1997); perceived distributive injustice has been positively linked to Correspondence concerning this article should be addressed to Sharon Foley, Department of Management, Drexel University, Philadelphia, PA, 19104; e-mail: sf46@drexel.edu. Group & Organization Management, Vol. 30 No. 4, August 2005 421-450 DOI: 10.1177/1059601104265054 © 2005 Sage Publications 421 employee theft (Greenberg, 1990); and perceived gender discrimination has been positively linked to work conflict (Gutek, Cohen, & Tsui, 1996). Although one published study focused on both perceived ethnic discrimi- nation and perceptions of distributive justice (Foley, Kidder, & Powell, 2002), few studies have examined perceived gender discrimination, proce- dural justice, and distributive justice together in one model, particularly in a non-Western setting. In addition, in the studies that have focused on gen- der differences in the reactions to justice or discrimination, the results from these studies have been mixed (Lee & Farh, 1999; Ngo, Tang, & Au, 2002; Sweeney & McFarlin, 1997). In the present study, we relate individuals’ perceived gender discrimina- tion, procedural justice, and distributive justice to their reactions to the job and to the organization, and we examine the moderating role of gender on these relationships in a non-Western setting. The purpose of this study is fourfold: (a) to provide a theoretical framework that links perceptions of jus- tice and gender discrimination to several salient job attitudes (i.e., job satis- faction, organizational commitment, and intentions to leave); (b) to extend the current literature by testing several new hypotheses about the moderating role of gender; (c) to test the mediating effect of work-related attitudes on the relationship between justice or discrimination perceptions and intentions to leave the organization; and (d) to assess the generalizability of research find- ings in Western settings by employing a non-Western sample. We examine the reactions of Protestant clergy in Hong Kong to perceptions of justice and gender discrimination. Similar to other professional occupations, the clergy has been male- dominated and male-controlled (Bock, 1967; McDuff & Mueller, 2002). There is clear evidence that female clergy experience inferior work condi- tions and suffer from workplace inequalities (Chang, 2000; McDuff, 2001; Nesbitt, 1996; Schneider & Schneider, 1997). The present study adds to the management literature by examining the outcomes of perceptions of gender discrimination and justice for professional workers. Also, using samples from other countries allows us to see whether American management theo- ries, which reflect American culture, are transferable to other countries (Hofstede, 1993). We apply theories from social psychology including social identity theory, social comparison, relative deprivation, and gender-role the- ory. Based on gender-role theory, we propose that men react more strongly to perceived justice in the workplace and women react more strongly to per- ceived gender discrimination. Attention to these matters is important for organizations concerned about attracting and retaining professionals of both genders. 422 GROUP & ORGANIZATION MANAGEMENT LITERATURE REVIEW PERCEIVED GENDER DISCRIMINATION AND SOCIAL COMPARISONS Gender discrimination is said to occur when personnel decisions are based on gender, an ascribed characteristic, rather than on an individual’s qualifications or job performance (Gutek et al., 1996; Ngo et al., 2002). Per- ceived discrimination is an individual’s perception that he or she is treated differently or unfairly because of his or her group membership (Sanchez & Brock, 1996). One’s identity group may include individuals with similar demographic characteristics, such as ethnicity, gender, or age (Ensher, Grant-Vallone, & Donaldson, 2001). When individuals perceive gender dis- crimination, they believe that members of their sex are systematically disad- vantaged at work relative to the other sex (Gutek et al., 1996). In assessing whether they are experiencing gender discrimination, indi- viduals often use social comparisons. Social comparisons provide informa- tion about what types of outcomes and/or treatments, such as salary increases or promotions, it is possible to achieve (Major, 1994). Collective relative deprivation refers to the grievance felt on behalf of one’s group and the reac- tions to those grievances, such as resentment and dissatisfaction (Crosby, 1982). Consistent with the theory of collective relative deprivation, women who perceived that their organization discriminated against their own sex (i.e., group deprivation) expressed their feelings in concrete ways, such as decreased self-efficacy (Gutek et al., 1996). DISTRIBUTIVE AND PROCEDURAL JUSTICE Distributive justice is grounded in equity theory, which states that individ- uals believe outcomes are fair when they are consistent with individual inputs (Adams, 1965; Folger & Cropanzano, 1998). Since justice refers to individuals’ perceptions of fairness, we will use the terms justice and fairness interchangeably. The fairness of the means used to determine organizational outcomes is referred to as procedural justice. Two central themes in the study of organizational justice are that fairness in organizational procedures consti- tutes both an important determinant of work attitudes (Lee & Farh, 1999) and a predictor of employee reactions, such as how individuals evaluate their workplace experiences (Sweeney & McFarlin, 1997). Justice researchers have generated a large body of research illustrating that justice perceptions have substantial effects on job satisfaction and organizational commitment (Cohen-Charash & Spector, 2001; Younts & Mueller, 2001). Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 423 Employees’ perceptions of distributive and procedural justice are related to organizational policies and practices. According to Balser (2002), individ- uals’ interpretations and perceptions of discrimination are also affected by the practices and procedures, adopted by the organization, that signal stake- holders about the organization’s concerns for the fair treatment of employ- ees. Some organizational practices (e.g., lower pay for women) may simulta- neously affect the perceptions of distributive justice, procedural justice, and gender discrimination, whereas other practices (e.g., salary cut in a depart- ment) may affect only one perception. Although the perceptions of distribu- tive justice and gender discrimination involve social comparisons, the target of comparisons may not be the same. Therefore, the three constructs are different but related as they focus on different aspects of equity at work. GENDER AND CULTURAL DIFFERENCES Research examining gender differences in the justice/outcome relation- ship has shown mixed results. Brockner and Adsit (1986) found that per- ceived distributive justice had a stronger relationship with job satisfaction for men compared to women. Sweeney and McFarlin (1997) found that relation- ships between the fairness of procedures (e.g., performance appraisal) and various organizational outcome variables (e.g., commitment and intent to stay) are stronger for women than for men, and that relationships between the fairness of outcome distributions (e.g., pay raises) and those same variables are stronger for men than for women. Lee and Farh (1999) replicated Swee- ney and McFarlin’s study, and the only moderated effect they found was between distributive justice and trust in supervisor, which was stronger for women than for men. Fields, Pang, and Chiu (2000) found that the effects of procedural and distributive justice are about the same for men and for women, suggesting that women may expect to obtain fair treatment in the allocation of rewards. Brockner and Adsit (1986) were guided by the notion that if the equity norm is more salient for males than females, then males’ satisfaction with an exchange relationship would be more dependent upon the equity of that rela- tionship relative to females’ satisfaction. Lee and Farh (1999) suggested that females focus more on process-oriented issues, whereas males focus more on outcome-oriented issues. Sweeney and McFarlin (1997, p. 84) based their hypotheses on “the overall pattern of laboratory research and theorizing,” including women’s low sense of personal entitlement and women’s social- ization to be more interested in cultivating relationships with co-workers than are men. Fields et al. (2000) proposed that distributive and procedural justice will predict work outcomes in Hong Kong in the same way as in the 424 GROUP & ORGANIZATION MANAGEMENT U.S. (i.e., procedural justice will have a stronger relationship than distribu- tive justice with work outcomes for women). They took the viewpoint that Hong Kong’s exposure to Western business and employment practices has led to a convergence of work-related values and expectations despite sub- stantial cultural differences (i.e., differences in collectivism vs. individual- ism, power distance, and Confucianism). Thus, the relationships of justice and work outcomes for Hong Kong employees would be similar to rela- tionships found in previous studies of American employees. Rather than focusing on the above cultural differences, we propose that due to a similarly high masculinity score in Hong Kong and the United States, the relationship between distributive justice and various organiza- tional outcomes is stronger for men than for women. The level of masculinity versus femininity in a society is related to the division of gender roles and gender differences in values (Hofstede, 2001). In masculine societies, men are supposed to be assertive, competitive, and focused on material success, whereas women are supposed to be more modest, tender, and concerned with the quality of life (Hofstede, 1980, 2001). Studies have found that Chinese subjects show greater degrees of sex-role differentiation than Americans (Bond & Hwang, 1986). Therefore, we also expect that the relationship between procedural justice and outcome variables is stronger for men than for women. We suggest that a culture’s masculinity dimension may have sig- nificant consequences for the validity of applying theories of justice and discrimination from one country to another. GENDER ROLE THEORY AND PERSONAL RELATIVE DEPRIVATION One explanation for gender differences in reactions to justice or discrimi- nation that has not been fully explored is the social role theory of gender dif- ferences (or gender role theory). According to this theory, women and men tend to differ in a wide range of social behaviors in social contexts in which gender roles are salient (Eagly, 1987). Individuals conform to gender stereo- types (e.g., men exhibit traditionally masculine behaviors, and women ex- hibit traditionally feminine behaviors) in large part because the different roles that they perform place different social demands on them (Vogel, Wester, Heesacker, & Madon, 2003). Males, likely to be in higher-status roles, display gender-stereotypic “agentic” qualities (e.g., assertive, compet- itive, controlling), and females, likely to be in lower-status roles, display gender-stereotypic “communal” qualities (e.g., nurturing, kind, selfless) (Crosby, 1982, p. 16). The enactment of gender roles and the confirmation of gender stereotypes appear to be a dynamic process that is dependent on Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 425 specific contextual factors (Vogel et al., 2003). Applying gender role theory, Fields et al.’s (2000) finding of no gender difference in the justice/outcome relationship may be due to specific social roles (e.g., occupational roles) that are of considerably more importance in determining work behavior than are gender roles. In other words, because such social roles may easily override gender roles under certain conditions, it is possible that women and men in the same specific social role behave quite similarly (Eagly, 1987). The general explanation for personal relative deprivation is that individu- als’ expectations, based largely on social comparisons, determine levels of contentment regardless of their objective situation. Whereas justice theory takes into account people’s feelings about distributions in general, relative- deprivation research concentrates on how people react to “their own position in the larger matrix” (Crosby, 1982, p. 26). Social comparisons are an essen- tial component in assessing whether one is deprived. Building on Crosby’s (1982) work, Major (1994) argued that women feel less entitled to job re- wards than do men, and that is the key to understanding women’s greater job satisfaction. SOCIAL IDENTITY THEORY The basic principles of social identity underlie much of the research on equity and justice theory (Primeaux, Karri, & Caldwell, 2003). Social iden- tity theory (Capozza & Brown, 2000; Tajfel & Turner, 1986) suggests that people classify themselves and others into social categories and then identify more with members of their own category (in-group) than with members of other categories (out-group). According to this perspective, identity has a social component derived from salient group memberships, such as gender, race, class, and nationality (Ashforth & Mael, 1989). People may identify more with individuals who are similar along a dimension of social identity that they believe has been used as the basis of discrimination against them (Wharton, 1992). Social identity theory suggests that females in the work- place may be sensitive to discrimination or injustice that they believe is directed toward women (Schmitt, Ellemers, & Branscombe, 2003) and that women’s own personal experiences or the experiences of others with whom they identify will affect their perception of discrimination (Gutek et al., 1996). Since Hong Kong is a masculine society where social gender roles are clearly distinct (Hofstede, 2001), we expect that individuals will identify with others along gender lines. In summary, perceptions of gender discrimination and justice, and the processes that generate these perceptions, occur within social contexts that often treat or reward people differently based on the social group to which 426 GROUP & ORGANIZATION MANAGEMENT they belong. Organizational characteristics, such as segregation and discrim- ination, are likely to structure comparison processes by shaping the relative value individuals attach to various social groups. Gender differences in work attitudes and behaviors are affected by many aspects of the organizational context, such as role expectations associated with one’s gender and job position. HYPOTHESES Figure 1 presents our proposed model of perceptions, attitudes, and inten- tions. Below, several hypotheses are derived for our Protestant clergy re- spondents in Hong Kong. DIRECT EFFECTS Employees who perceived sexist policies and practices in their organiza- tions reported less job satisfaction and organizational commitment (Ensher et al., 2001) and are less likely to choose the same career if they could start over (Gutek et al., 1996). Discrimination against female clergy is demon- strated by their disproportionate absence from positions of authority, their assignment to specialized positions with less chance of promotions, and lower salaries than male colleagues receive (Nesbitt, 1997; Ngo, Foley, Wong, & Loi, 2003; Schneider & Schneider, 1997). In addition, studies of male and female clergy consistently find a gender gap in benefits and pay Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 427 Job Satisfaction Organizational Commitment Intentions to Leave H1b, H2b, H3b H8a H8b H8a H1a, H2a, H3a H8b H5a, H5b, H6a, H6b, H7a, H7b Gender Perceived Gender Discrimination Distributive Justice Procedural Justice H4a, H4b, H4c Figure 1: Proposed Theoretical Model (Chang, 2000; McDuff, 2001). Female clergy as a group still face difficulties in being accepted by congregations, and female clergy have not integrated well into the occupation beyond lower-level positions (Nesbitt, 1997; Ngo & Wong, 2002). We predict that when individuals perceive that their gender is used as the basis of discrimination in their workplace, they will display a low level of job satisfaction and organizational commitment. Hypothesis 1a: Perceived gender discrimination will be negatively related to job satisfaction. Hypothesis 1b: Perceived gender discrimination will be negatively related to orga- nizational commitment. It is well documented that when individuals perceive that the basic out- comes in their organization are more fair, they have more positive work- related attitudes (Greenberg, 1986, 1990). Individuals make social compari- sons between themselves and their coworkers in regards to their organizational rewards. These comparisons are likely to influence their assessment of the fairness of rewards in their organization (Ngo et al., 2003), which in turn affects their level of job satisfaction and commitment to the organization. Hypothesis 2a: Perceived distributive justice will be positively related to job satisfaction. Hypothesis 2b: Perceived distributive justice will be positively related to organi- zational commitment. One of the most consistent and significant findings of procedural justice research is the positive effect perceptions of procedural justice exert on indi- viduals’ long-term attitudes (such as commitment and satisfaction) toward groups, institutions, and leaders (Kim & Mauborgne, 1998). The manner in which a social system deals with allocating rewards and resources has an impact on organizational effectiveness and on the satisfaction of organiza- tional members (Leventhal, 1980). Randall and Mueller (1995) provide evi- dence of the positive effect of justice evaluations on job satisfaction and organizational commitment. Hypothesis 3a: Perceived procedural justice will be positively related to job satisfaction. Hypothesis 3b: Perceived procedural justice will be positively related to organiza- tional commitment. Intentions to leave have been studied extensively in the management liter- ature (e.g., Randall, Cropanzano, Bormann, & Birjulin, 1999). Most turn- over research has found that intentions to leave are the strongest predictor of 428 GROUP & ORGANIZATION MANAGEMENT employee turnover behavior (Rosin & Korabik, 1991; Stroh, Brett, & Reilly, 1996). Other organizational phenomena have been hypothesized to influ- ence intentions to leave the firm. For one sample of female managers, work- ing in a male-dominated environment was significantly related to low satis- faction and commitment and to a high propensity to leave the firm (Rosin & Korabik, 1991). Female managers leave their organizations because they “bump their heads” against a glass ceiling. Thus, perceived gender discrimi- nation will increase turnover intentions (Morrison, White, & Van Velsor, 1987). Stroh et al. (1996) also found that female managers who are frustrated at their lack of career opportunities are more likely to quit their organizations than are male managers with a similar level of frustration. Previous research has identified a link between organizational justice and intentions to leave (DeWitt, Trevino, & Mollica, 1998). Social comparisons (with others or self) affect wants, aspirations, and judgments of what is feasi- ble for oneself (Major, 1994), and when social comparison leads to feelings of unfairness, the individual may intend to leave the firm. As pointed out by McDuff and Mueller (2000), clergy intentions to leave one church for another are based on a rational assessment of work conditions in their current church. Thus, we predict that despite their professional service calling, clergy will seriously consider leaving their organization if they are experi- encing gender discrimination and unfairness in their church. Hypothesis 4a: Perceived gender discrimination will be positively related to inten- tions to leave. Hypothesis 4b: Perceived distributive justice will be negatively related to inten- tions to leave. Hypothesis 4c: Perceived procedural justice will be negatively related to inten- tions to leave. MODERATING EFFECT OF GENDER In the present study, we hypothesize that the relationship between per- ceived gender discrimination and work-related attitudes will differ for women and for men.1 Existing evidence indicates that women experience more gender discrimination in the workplace than do men (Northcraft & Gutek, 1993) and encounter a glass-ceiling barrier to promotion based on gender (Morrison et al., 1987). Some researchers contend that women tend to be more aware of employment discrimination than men owing to their mem- bership in a discriminated-against social group (Ngo et al., 2002; Trentham & Larwood, 1998). Although social identity theory and the concept of rela- tive deprivation suggests that women typically use other women as their so- cial comparison group (Crosby, 1982), women presumably compare them- Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 429 selves to men when assessing gender discrimination. Working women can see that women in general are disadvantaged in the workplace. In other words, women easily recognize areas of collective disadvantage (Crosby, 1982). If women do indeed perceive more discrimination based on gender than do men, and if they expect to suffer more from it than do men, then the relationship between gender discrimination and negative reactions to the job and organization will be stronger for women than for men. Hypothesis 5a: Gender will moderate the relationship between perceived gender discrimination and job satisfaction. Specifically, the negative effect of per- ceived gender discrimination on job satisfaction will be stronger for women than for men. Hypothesis 5b: Gender will moderate the relationship between perceived gender discrimination and organizational commitment. Specifically, the negative effect of perceived gender discrimination on organizational commitment will be stronger for women than for men. Gender differences in entitlement for pay is an important reason why women are no less satisfied than men are with their jobs or pay despite their objective disadvantage (Major, 1994). Major (1994) argued that women feel less entitled to job rewards than men do and women’s sense of entitlement is likely to be affected by their acceptance of gender-based inequality in job rewards and conditions. The “contented female worker” sees little gap be- tween her actual and desired job rewards, even though she is underpaid rela- tive to men, because pay does not constitute a critical desire for her (Crosby, 1982, p. 160). Women and men estimate what they deserve on the basis of intragroup comparisons that occur in social contexts in which women are dis- advantaged, resulting in women having a lesser sense of entitlement to pay and rewards than men have (Major, 1994). Female clergy receive lower pay, serve in less desirable churches, and receive fewer opportunities for ad- vancement, yet they are significantly more satisfied with their jobs than are male clergy in comparable positions (McDuff, 2001). Among the Protestant clergy in Hong Kong, gender roles are salient and likely to override any specific social roles (e.g., organizational or profes- sional roles), and thus we would expect to find gender differences in justice/ outcome relationships. There are two reasons for the gender differences. First, female clergy have fewer opportunities for promotion and ordination compared to male clergy, and they have a lower representation in large denominations (Nesbitt, 1996; Ngo & Wong, 2002). According to McDuff and Mueller (2002), under such circumstances, female clergy tend to develop alternative models of ministry. For example, they may be expanding the images of ways to perform the ministry and reevaluating traditional values 430 GROUP & ORGANIZATION MANAGEMENT about their profession. In ambiguous work situations that lack well-defined organizational and professional roles with clear role requirements, gender roles are relatively salient (Eagly, 1987). Second, in the local church setting, jobs are highly sex segregated (Ngo et al., 2003). Because of sex segregation and the assignment of differential tasks for men and women, gender roles become important and even more relevant to job performance than do other social roles. Personal relative deprivation occurs when an individual feels disadvan- taged in his or her job situation relative to others in his or her own group. For a woman, this social comparison group is often comprised of other women (Crosby, 1982). Crosby (1982) suggested that because of job and occupa- tional segregation, women typically use other women as their social compar- ison group and consequently have lower expectations for work rewards than do men. Men will react more negatively to injustice than will women because (a) men have been socialized to derive satisfaction from outcomes obtained from competition; (b) men may be more likely to be concerned with fairness issues because procedures and outcomes generally favor them (Sweeney & McFarlin, 1997); and (c) in moral problem solving, men primarily employ a justice orientation characterized by considerations of fairness and equity (Gilligan, 1982). Thus, we expect that men will react more strongly to per- ceived distributive and procedural justice than will women. Hypothesis 6a: Gender will moderate the relationship between perceived distribu- tive justice and job satisfaction. Specifically, the more fair the reward, the higher men’s job satisfaction compared to women’s. Hypothesis 6b: Gender will moderate the relationship between perceived distribu- tive justice and organizational commitment. Specifically, the more fair the reward, the higher men’s organizational commitment compared to women’s. Hypothesis 7a: Gender will moderate the relationship between perceived proce- dural justice and job satisfaction. Specifically, the more fair the process, the higher men’s job satisfaction compared to women’s. Hypothesis 7b: Gender will moderate the relationship between perceived proce- dural justice and organizational commitment. Specifically, the more fair the process, the higher men’s organizational commitment compared to women’s. MEDIATING RELATIONSHIP Job satisfaction and organizational commitment may function as media- tors in our model because they account for the relationship between fairness and discrimination perceptions and an individual’s intention to leave the organization. We argue that unfairness or discrimination alone may not cause an individual to consider leaving the organization. However, when the unfairness or discrimination translates into dissatisfaction or low commit- Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 431 ment, they take on significance through these work-related attitudes. In other words, job dissatisfaction and low organizational commitment intervene between perceptions and intentions to leave and account for why or how indi- viduals intend to leave. Therefore, although we have hypothesized that per- ceptions of unfairness and discrimination will affect an individual’s intention to leave the organization, the mechanism by which these variations in inten- tions to leave are produced is through job dissatisfaction and low organizational commitment. Hypothesis 8a: Job satisfaction mediates the effects of perceived gender discrimi- nation, distributive justice, and procedural justice on intentions to leave. Hypothesis 8b: Organizational commitment mediates the effects of perceived gender discrimination, distributive justice, and procedural justice on inten- tions to leave. METHOD SAMPLE AND PROCEDURE Our sample is comprised of Protestant clergy in Hong Kong. We chose clergy as our respondents for many reasons. First, gender inequity and dis- crimination at work has long been a concern in religious organizations (Chang, 2000; Nesbitt, 1997; Ngo & Wong, 2002). Partly because of reli- gious doctrines and traditions, women clergy have been disproportionately absent from positions of authority, and they face difficulties in being ac- cepted (Nesbitt, 1996). As female clergy confront more discrimination than their male colleagues, it is interesting to study how their job attitudes are affected by the perception of gender discrimination at work. Second, in re- cent research, justice evaluations are found to affect pay satisfaction among clergy (Younts & Mueller, 2001). Few studies, however, have examined other outcomes of organizational justice in the church setting. Third, clergy have been viewed as a “professional occupational labor market” character- ized by long-term career orientation (McDuff & Mueller, 2000). Compared to workers in the business sector, clergy tend to have longer job tenure and to care more about their long-term career prospects in the organization. Clergy are characterized by their professional service orientation, a “calling” that goes beyond self-interest toward the divine (McDuff & Mueller, 2000). A sense of calling reflects the public service ideal that is one of the primary criteria of a profession (Hatch, 1988). Using clergy as our sample helps us to understand more about how professional workers perceive fairness and 432 GROUP & ORGANIZATION MANAGEMENT discrimination at work and about how organizational conditions affect their perceptions. The data come from a survey of Protestant clergy conducted in Hong Kong in 2001. The target respondents were 2,600 pastors and preachers for local churches. All of the respondents were local Chinese. A Christian asso- ciation provided the names and mailing addresses for these clergy. Mailed to each potential respondent was a self-administered questionnaire along with a cover letter that explained the purpose of the survey (i.e., to understand the work situation and role expectation of clergy) and that invited them to partic- ipate on a voluntary basis. All respondents were assured of confidentiality and asked to return their completed questionnaire to a research center affili- ated with a local university. A follow-up call was made to remind the respon- dents to complete the questionnaire 3 to 4 weeks after the initial mailing. A total of 877 surveys were finally returned, representing a response rate of 33.7%. The questionnaires were administered in Chinese with some well- established scales developed in the West. Items for these scales were origi- nally developed in English and then translated into Chinese. The wording of some items was modified to fit the research setting. To ensure the quality of the translation, a back-translation was also done (Brislin, 1970). Among the respondents, 52.5% were male and 67.6% were married. The average work experience and organizational tenure were 9.5 and 5.6 years, respectively. Regarding their job positions, 21.7% were pastors and 64.0% were preachers. 27.1% of them (mostly pastors) reported that they were in charge of the church. Male and female clergy, however, reported holding dif- ferent job positions in the hierarchy. Of the male respondents, 157 (34.3%) and 217 (47.4%) were pastors and preachers, respectively. The figures were 32 (7.7%) and 341 (82.4%) for the female respondents. In fact, more men were granted ordination (to be pastors) than were women. Moreover, among those who are in charge of their church, 190 (80.5%) were male and 46 (19.5%) were female, which reflected that female clergy are less likely to be appointed or promoted to that position compared with their male colleagues. MEASURES Perceived gender discrimination. Four items, adopted from Sanchez and Brock (1996), were used to measure respondents’ perception of gender dis- crimination in the workplace. The original scale with 10 items was designed to measure perceived ethnic discrimination among Hispanic employees. We selected and modified four items from that scale to fit our research context. Coefficient alpha for this scale was 0.868. Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 433 Distributive justice. Distributive justice was measured by four items tap- ping perceived fairness of reward that were modified from Goodman (1974) and from Tremblay and Roussel (2001). The perceived justice of rewards was broken down into justice based on efforts and time, based on internal equity (colleagues in the same organization), and based on external equity (workers in other organizations). This scale has a high alpha coefficient of 0.943. Procedural justice. Procedural justice was assessed with four items modi- fied from Balkin and Gomez-Mejia (1990) and from Parker, Baltes, and Christiansen (1997) to capture the perceived fairness of the procedures used to make personnel decisions and to determine work arrangements. These items focused mainly on respondents’ inputs into and degrees of involve- ment in the decision-making process. Coefficient alpha for this scale was 0.831. Job satisfaction. This variable was measured by a three-item scale devel- oped by Price and Mueller (1981). Coefficient alpha for this scale was 0.861. Organizational commitment. A short form of the affective organizational commitment scale developed by Allen and Meyer (1990) was employed. We changed the word “organization” to the word “church” in our scale items. This scale had an alpha coefficient alpha of 0.849. Intentions to leave. This variable was measured by a three-item scale developed by Cohen (1998) and based on Mobley, Griffin, Hand, and Meglino’s (1979) definition. The three items had an alpha coefficient of 0.855. The items and scales of the above measures are shown in the Appendix. Gender. Males were coded as 0, and females were coded as 1. Control variables. A review of previous studies on clergy’s job attitudes suggested three important variables to control for in the analysis, including church size, tenure with the current church, and job position. McDuff and Meuller (2002) pointed out that clergy who serve large churches tend to have a high level of job satisfaction and attachment to their current parish. In our study, church size refers to the size of congregation as measured with nine categories ranging from “less than 50 parishioners” to “more than 1000 parishioners.” We follow the works of McDuff (2001) and McDuff and Mueller (2000) to control for organizational tenure, which is often found to 434 GROUP & ORGANIZATION MANAGEMENT be a significant predictor of job satisfaction and organizational commitment. It is measured as the respondent’s total number of years working in the church. Lastly, ministerial position is related to work autonomy and author- ity in decision-making that affects work satisfaction (McDuff, 2001). In our study, job position is indicated by a dummy variable coded 1 if the respon- dent is the person who is in charge of the church and coded 0 if the respondent is not. STATISTICAL ANALYSES We employed hierarchical regression to test the hypotheses. Separate analyses were conducted for job satisfaction, organizational commitment, and intentions to leave. For the analysis of job satisfaction and organizational commitment, the control variables were entered in the regression model in step 1. Discrimination and justice perceptions were then entered as a block in step 2, followed by gender in step 3. In the last step, the three interaction terms (i.e., gender with discrimination, distributive justice, and procedural justice) were entered. Such a stepwise design was used to test the moderating effect of gender (Baron & Kenny, 1986). Our hypotheses were tested by examining the regression coefficients and the change in model R2 at each step. For moderator hypothesis testing, we employed a less stringent signifi- cance level (i.e., 0.1) because measurement error and shared variances make Type II errors likely. Significant interactions were plotted to show the exact moderating effect. For testing mediating relationships, we adopted the proce- dure suggested by Baron and Kenny (1986). We first regressed job satisfac- tion and organizational commitment, the two potential mediators, on the three independent variables (i.e., perceived gender discrimination, distribu- tive justice, and procedural justice). Then, we regressed intentions to leave on these independent variables. Finally, we regressed intentions to leave on both the independent variables and on the mediators. The mediation effects can be shown by the changes in the regression coefficients of the independent variables in different models. RESULTS Table 1 presents the means, standard deviations, and zero-order correla- tions among the study variables. Perceived gender discrimination was nega- tively correlated with distributive and procedural justice (r = –.27 and –.31, respectively). It also showed a negative correlation with job satisfaction (r = –.23) and organizational commitment (r = –.29) and a positive correlation Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 435 with intentions to leave (r = .37). In addition, the correlation of distributive justice and procedural justice was strong (r = .58). These two variables were positively related to job satisfaction (r = .32 and .38, respectively) and orga- nizational commitment (r = .50 and .61, respectively), and both were nega- tively related to intentions to leave (r = –.35 and –.42, respectively). To test for common method variance and to help establish the convergent and discriminant validity of the major constructs in this study, we performed a confirmatory factor analysis using LISREL 8.30. All items for the six per- ceptual and attitudinal measures were included in the analysis. The results revealed that the six-factor model provides a good fit to the data, with a chi- square value of 808.03 (df = 174; p < .01). The root-mean-square error of approximation (RMSEA) was 0.064, whereas the goodness of fit index (GFI) and comparative fit index (CFI) were 0.92 and 0.95, respectively. All the indicators loaded exactly on their respective constructs. t-tests were conducted to show the gender differences in study variables. As shown in Table 2, male and female respondents were different in their perceptions of gender discrimination (t = –6.79, p < .001), with female clergy perceiving more gender discrimination in the workplace than did their male colleagues. Male respondents also reported a slightly higher level of distribu- tive and procedural justice (t = 2.11 and 2.70, p < .01 and p < .05, respec- tively) than did female respondents. Men were higher on organizational commitment (t = 3.05, p < .01) and lower on intentions to leave (t = –2.03, p < .05), but no significant difference was found between men and women in their level of job satisfaction. Tables 3 and 4 display the results of regression analyses on job satisfac- tion and organizational commitment, respectively. The direct effects of per- ceived gender discrimination, distributive justice, and procedural justice are evaluated in Model 2. First, perceived gender discrimination was negatively related to job satisfaction (β = –.07, p < .05) and organizational commitment (β = –.07, p < .05). This provides support for Hypotheses 1a and 1b. Addi- tionally, both distributive justice and procedural justice were significantly related to job satisfaction (β = .11, p < .01 and β = .28, p < .01, respectively) and organizational commitment (β = .19, p < .01 and β = .44, p < .01, respec- tively) in the predicted direction. Thus, Hypotheses 2a, 2b, 3a, and 3b gained empirical support. When gender was entered in Model 3, it did not account for a significant amount of variance for either outcome variable. Hypotheses 5a to 7b posit that gender will play a moderating role in the above relation- ships. To test these hypotheses, three interaction terms were included in Model 4, and they slightly increased the explained variance in job satisfac- tion (∆R2 = .01, p < .1) and organizational commitment (∆R2 = .01, p < .05). 436 GROUP & ORGANIZATION MANAGEMENT 437 T A B L E 1 M ea n s, S ta n d ar d D ev ia ti on s an d C or re la ti on s A m on g S tu d y V ar ia b le s V a ri a b le M S D 1 2 3 4 5 6 7 8 9 1 0 1. G en de r (f em al e = 1 ) 0. 47 0. 50 2. O rg an iz at io na l te nu re 5. 57 4. 99 –0 .1 1* * 3. Jo b po si ti on 0. 27 0. 44 –0 .3 4* * 0. 28 ** 4. C hu rc h si ze 3. 94 2. 34 0. 03 0. 02 –0 .2 3* * 5. P er ce iv ed g en de r di sc ri m in at io n 2. 65 1. 09 0. 22 ** –0 .0 9* –0 .1 5* * –0 .0 8* 6. D is tr ib ut iv e ju st ic e 4. 49 1. 12 –0 .0 7* 0. 12 ** 0. 12 ** 0. 02 –0 .2 7* * 7. P ro ce du ra l ju st ic e 4. 43 0. 99 –0 .0 9* 0. 14 ** 0. 19 ** –0 .1 1* * –0 .3 1* * 0. 58 ** 8. Jo b sa ti sf ac ti on 4. 75 0. 80 –0 .0 5 0. 16 ** 0. 18 ** 0. 05 –0 .2 3* * 0. 32 ** 0. 38 ** 9. O rg an iz at io na l co m m it m en t 4. 72 1. 02 –0 .1 0* * 0. 29 ** 0. 21 ** –0 .0 1 –0 .2 9* * 0. 50 ** 0. 61 ** 0. 56 ** 10 . In te nt io ns t o le av e 2. 18 1. 09 0. 07 * –0 .1 1* * –0 .1 6* * –0 .0 1 0. 37 ** –0 .3 5* * –0 .4 2* * –0 .4 6* * –0 .5 7* * N O T E : A ll t w o- ta il ed t es ts . *p < .0 5. * *p < .0 1. The interaction of gender with perceived gender discrimination was signifi- cant for organizational commitment (β = –.24, p < .01) but not for job satis- faction. In other words, Hypothesis 5b was supported, and Hypothesis 5a was not supported. Based on the procedure suggested by Holmbeck (1997) 438 GROUP & ORGANIZATION MANAGEMENT TABLE 2 Gender Differences in Study Variables Variable x for males x for females t-value Organizational tenure 6.09 4.97 3.25** Job position 0.41 0.11 10.71** Church size 3.89 4.01 –0.73 Perceived gender discrimination 2.42 2.91 –6.79** Distributive justice 4.57 4.41 2.11* Procedural justice 4.51 4.33 2.70** Job satisfaction 4.78 4.70 1.39 Organizational commitment 4.81 4.60 3.05** Intentions to leave 2.11 2.26 –2.03* NOTE: n range from 836 to 872. *p < .05. **p < .01. TABLE 3 Regression Analysis on Job Satisfaction Predictor Model 1 Model 2 Model 3 Model 4 Organizational tenure 0.11** 0.07* 0.07* 0.07* Job position 0.16** 0.09** 0.11** 0.11** Church size 0.08* 0.09** 0.09** 0.09** Perceived gender discrimination –0.07* –0.08* –0.13* Distributive justice 0.11** 0.11** 0.17** Procedural justice 0.28** 0.28** 0.27** Gender (female = 1) 0.06† 0.21 Gender x perceived 0.11 gender discrimination Gender x distributive justice –0.28† Gender x procedural justice 0.03 R 2 0.05** 0.19** 0.19** 0.20** F-statistic 13.80 31.74 27.72 20.12 ∆ R2 0.14** 0.01† 0.01† F-statistic 47.34 3.10 2.13 NOTE: n = 822. Standardized regression coefficients are reported. † p < .1. *p < .05. **p < .01. for a dichotomous moderator, we plotted the interaction effect. As shown in Figure 2, the effect of perceived gender discrimination on organizational commitment was stronger for women than for men. It is also worthy to note that the interaction of gender with distributive justice was significant for job satisfaction (β = –.28, p < .1) but not for organizational commitment. Thus, Hypothesis 6a was supported, and Hypothesis 6b was not supported. Figure 3 reveals that distributive justice was associated with lower job satisfaction for men than for women. Since the interaction of gender with procedural justice was not significant for either outcome variable, Hypotheses 7a and 7b were not supported by the data. The results of regression analysis for intentions to leave are shown in Table 5. Model 1 is the baseline model that includes gender and the control variables. In Model 2, when perceived gender discrimination and the two jus- tice variables were entered, they raised the explained variance by 22%. Spe- cifically, it was found that perceived gender discrimination (β = .25, p < .01) had a positive effect, whereas distributive justice (β = –.11, p < .01) and pro- cedural justice (β = –.27, p < .01) had a negative effect on intentions to leave. Thus, support was found for Hypotheses 4a, 4b, and 4c. However, in Model Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 439 TABLE 4 Regression Analysis on Organizational Commitment Predictor Model 1 Model 2 Model 3 Model 4 Organizational tenure 0.25** 0.19** 0.19** 0.19** Job position 0.14** 0.05 0.05 0.05† Church size 0.02 0.04 0.04 0.04 Perceived gender discrimination –0.07* –0.07* 0.02 Distributive justice 0.19** 0.19** 0.23** Procedural justice 0.44** 0.44** 0.44** Gender (female = 1) 0.01 0.39* Gender x perceived –0.24** gender discrimination Gender x distributive justice –0.16 Gender x procedural justice –0.03 R 2 0.10** 0.44** 0.44** 0.45** F-statistic 31.70 107.97 92.44 66.01 ∆ R2 0.34** 0.00 0.01* F-statistic 165.18 0.03 2.87 NOTE: n = 823. Standardized regression coefficients are reported. † p < .1. *p < .05. **p < .01. 440 GROUP & ORGANIZATION MANAGEMENT 4 4.5 5 Low High Perceived Gender Discrimination O rg a n iz a ti o n a l C o m m it m e n t Males Females Males Females Figure 2: Moderating Effect of Gender on the Relationship Between Perceived Gender Discrimination and Organizational Commitment 4 4.5 5 Low High Distributive Justice J o b S a ti s fa c ti o n Males Females Figure 3: Moderating Effect of Gender on the Relationship Between Distributive Justice and Job Satisfaction 3, the interaction terms of gender with perceived gender discrimination, dis- tributive justice, and procedural justice were insignificant. Hypotheses 8a and 8b, stating that job satisfaction and organizational commitment mediate the effects of gender discrimination and distributive and procedural justice on intentions to leave, were tested according to Baron and Kenny’s (1986) procedure. As shown in Models 1, 2, and 3 in Table 6, the three predictors significantly affected job satisfaction and organizational commitment (i.e., the two hypothesized mediators) and intentions to leave in the predicted direction. In Model 4, when both the mediators and independ- ent variables are included, the significant effects of distributive justice and procedural justice in the previous model disappeared. Taking these findings together, both Hypotheses 8a and 8b were supported in that job satisfaction and organizational commitment fully mediated the effects of justice percep- tions on intentions to leave. However, the effect of perceived gender discrim- ination remained significant in Model 4. This variable seems to have a strong direct effect on intentions to leave and not through job satisfaction and organizational commitment. Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 441 TABLE 5 Regression Analysis on Intentions to Leave Predictor Model 1 Model 2 Model 3 Organizational tenure –0.06† –0.02 –0.02 Job position –0.16** –0.09* –0.08* Church size –0.04 –0.03 –0.03 Gender (female = 1) 0.01 –0.05 –0.14 Perceived gender discrimination 0.25** 0.25** Distributive justice –0.11** –0.14** Procedural justice –0.27** –0.26** Gender x perceived gender discrimination –0.00 Gender x distributive justice –0.04 Gender x procedural justice 0.13 R 2 0.03** 0.26** 0.26** F-statistic 7.10 40.04 28.04 ∆ R2 0.22** 0.00 F-statistic 81.17 0.28 NOTE: n = 821. Standardized regression coefficients are reported. † p < .1. *p < .05. **p < .01. DISCUSSION In the present study, perceived injustice and gender discrimination were significantly related to job dissatisfaction, low organizational commitment, and greater intentions to leave the organization. Additionally, we found that women perceived higher levels of gender discrimination than did men, and for women, perceptions of gender discrimination were associated with lower organizational commitment but not with job satisfaction. This suggests that women may more strongly attribute gender discrimination to the organiza- tion than do men. Thus, their commitment to the organization is adversely affected as a result. Women’s satisfaction with their jobs, which may be seen as separate from the organization, is not particularly affected by their per- ception of gender discrimination. The other significant moderating relationship we found was between dis- tributive justice and job satisfaction, which was stronger for men than for women. As shown in Table 2, women reported a lower level of perceived procedural and distributive justice perceptions than did men, and both differ- ences were statistically significant. However, the effects of distributive and procedural justice were about the same for both sexes, supporting Fields et al.’s (2000) conclusion that women in Hong Kong may expect equal treat- ment with men in recognition and rewards, and hence they respond similarly to men. For female and male clergy, their responses to justice may be similar because they are highly educated and share the same religious values. 442 GROUP & ORGANIZATION MANAGEMENT TABLE 6 Testing Mediating Effects of Job Satisfaction and Organizational Commitment Model 1: Model 2: Model 3: Model 4: Job Organizational Intentions Intentions Predictor Satisfaction Commitment to Leave to Leave Perceived gender discrimination –0.10** –0.08** 0.25** 0.20** Distributive justice 0.13** 0.20** –0.12** –0.02 Procedural justice 0.27** 0.46** –0.27** –0.05 Job satisfaction –0.18** Organizational commitment –0.39** Adjusted R2 0.17 0.40 0.25 0.40 F-statistic 58.39** 195.49** 95.65** 117.03** n 864 865 863 863 NOTE: Standardized regression coefficients are reported. *p < .05. **p < .01. Furthermore, we found a relationship between perceived distributive and procedural justice and intentions to leave the organization through the medi- ating effects of job satisfaction and organizational commitment. Unfair pro- cedures and outcomes alone may not be enough to result in individuals’ intentions to quit their present job. Our findings revealed that job satisfaction and organizational commitment fully mediated the relationships between justice perceptions and intentions to leave. This confirms the importance of satisfaction and commitment as intervening variables in models of turnover intentions (Williams & Hazer, 1986). We were surprised to find that the relationship between gender discrimi- nation and intentions to leave the organization was not mediated by job satis- faction and organizational commitment, suggesting that gender discrimina- tion alone is enough to affect individuals’ leave intentions. Individuals seem to form leave intentions in part by directly considering the gender discrimi- nation experienced in their organization. IMPLICATIONS FOR THEORY By measuring both discrimination and justice perceptions, researchers can better understand how organizational conditions and processes affect job satisfaction and organizational commitment and how these work-related atti- tudes drive intentions to leave. The present study makes several contribu- tions to the literature. First, it examines discrimination from the point of view of those who may actually be experiencing discrimination. Thus, it offers insight into the reactions and work-related outcomes of the victims of dis- crimination. Second, our study establishes a theoretical and empirical link, not often recognized in the current literature, between the gender discrim- ination literature and justice theory. Third, our study answers Barak, Cherin, and Berkman’s (1998) call for future research examining employees’ per- ceptions of discrimination and the impact on their job attitudes. Fourth, Hofstede’s (1980, 2001) masculinity dimension may help in predicting gen- der differences in individuals’ perceived justice and discrimination in the workplace. Last, we address Sweeney and McFarlin’s (1997) view that much more needs to be done to identify factors or conditions that affect the moder- ating role that gender has on justice/outcome relationships. As we use clergy as our sample, the present study enables us to understand more about gender differences in a professional setting. IMPLICATIONS FOR PRACTICE Our findings have practical implications for understanding the moder- ating effect of gender on the perception-intention relationships we tested. Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 443 Perceptions of unfair organizational rewards have a more negative effect on men’s job satisfaction than on women’s job satisfaction. This would suggest to managers that the fairness of rewards is particularly important to men and that managers should endeavor to be perceived as fair when making reward allocations to minimize the adverse impact on job satisfaction. Continued research on the managerial practices that influence fairness perceptions will contribute to the design and implementation of fair allocative procedures and outcomes. Managers need to realize that decreasing employees’ perceptions of unfairness and discrimination is as important to employee retention as increasing job satisfaction and organizational commitment. The direct effect of gender discrimination on intentions to leave also has practical implications. The perception of gender discrimination in the work- place directly affects employees’ intentions to leave regardless of how satis- fied they are in their job or how committed they may be to the organization. Gender discrimination creates an overall negative work environment for all employees (Ensher et al., 2001); thus, individuals who perceive gender dis- crimination may be more likely to consider leaving the organization. Our results should alert managers to the negative consequences of employees’ attributing differences in treatment to their gender. Management decisions and communications with employees should be carefully shaped to prevent perceptions of differential treatment based on gender. LIMITATIONS AND DIRECTIONS FOR FUTURE RESEARCH Some methodological limitations of our study should be acknowledged. First, the potential for social desirability bias influencing responses was pres- ent because of the sensitive nature of the questions. This limitation was addressed in part by the guaranteed confidentiality of responses. Second, all of the variables were assessed by self-report measures, raising the possibility of common-methods bias. Third, the study was cross-sectional and did not capture trends within organizations, but causal relationships were inferred. One must be sure to note that causal inferences made from cross-sectional designs are never more than inferences (Moorman, 1991). Fourth, the view- point of the decision-makers, which may have shed further light on the per- ceptions of fairness and discrimination, was not assessed. Last, the depen- dent variables consisted of attitudes rather than behaviors. The behavioral consequences of justice and discrimination perceptions also need to be examined to understand the full ramifications of the gender differences in work-related attitudes. In addition, three potential limitations to the generalizability of this theo- retical perspective deserve comment. One issue concerns whether and to 444 GROUP & ORGANIZATION MANAGEMENT what extent the theoretical framework developed here generalizes across dif- ferent types of professions. We believe that our results generalize to other workers in helping professions (e.g., social workers) as well as to other work- ers in the non-profit sector because they face similar work conditions and practices as clergy. Future research is needed to cross-validate the current model using other professional employees as well as different nationalities and denominations. A second issue is whether and to what extent the theo- retical framework developed here generalizes across different types of out- comes (including both positive and negative ones) or to outcomes less ame- nable to social comparison. Third, the generalizability of these findings may extend only to those countries that are high on the masculinity dimension (e.g., the United States, Japan, Mexico, Germany, and Austria) rather than low-masculinity countries (e.g., Sweden, Norway, the Netherlands, Den- mark, and Finland). Future research is needed to cross-validate the current model using other professional employees, different nationalities, and social groups other than male and female. A longitudinal research design may better assess individu- als’ intentions to leave or remain with an organization (Farkas & Tetrick, 1989). Therefore, future research that can track a cohort of employees in an organization is needed. In conclusion, this study broadens our understanding of the influence of perceived (in)justice and gender discrimination on job attitudes for male and female professional workers. APPENDIX A six-point Likert-type scale format (1 = Strongly Disagree; 6 = Strongly Agree) was used to measure employees’ perceptions and job attitudes in this study. Perceived Gender Discrimination (α = .868) 1. At work, I sometimes feel that my gender is a limitation. 2. My gender has a negative influence on my career advancement. 3. At work, many people have sex stereotypes and treat me as if they were true. 4. At work, I feel that others exclude me from their activities because of my gender. Distributive Justice (α = .943) 1. Compared with my effort and time I put, I receive reasonable reward. 2. Compared with my colleagues, I receive reasonable reward. 3. Compared with workers in other churches, I receive reasonable reward. 4. I get the reward that I deserve. Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 445 Procedural Justice (α = .831) 1. My church tries to understand the view of workers on pay and work arrange- ments through various channels. 2. Workers are involved in making decisions that are related to their work. 3. Workers can express their opinions concerning their job assignment. 4. There is sufficient visibility on personnel decisions such as promotion and pay raise. Job satisfaction (α = .861) 1. I find real enjoyment in my job. 2. Most days I am enthusiastic about my job. 3. Overall speaking, I feel well satisfied with my job. Organizational Commitment (α = .849) 1. I would be very happy to spend the rest of my career with this church. 2. I really feel as if this church’s problems are my own. 3. I feel a strong sense of belonging to my church. Intentions to Leave (α = .855) 1. I think a lot about quitting my job. 2. I am actively searching for an alternative to my present job. 3. As soon as it is possible, I will leave the church. NOTE 1. In our study, gender is considered as the moderator. According to Baron and Kenny (1986), a moderator is a qualitative or quantitative variable that affects the direction and/or strength of the relation between an independent variable and a dependent variable. On the other hand, a mediator is a variable that accounts for the relation between the independent and the dependent variable. Whereas moderator variables specify when certain effects will hold, media- tors speak to how or why such effects occur. In our study, job satisfaction and organizational commitment are considered the two mediators between perceived gender discrimination, distrib- utive justice, procedural justice, and intentions to leave. REFERENCES Adams, J. S. (1965). Inequality in social exchange. In L. Berkowitz (Ed.), Advances in experi- mental social psychology (pp. 267-299). New York: Academic Press. 446 GROUP & ORGANIZATION MANAGEMENT Allen, N. J., & Meyer, J. P. (1990). The measurement and antecedents of affective, continu- ance, and normative commitment to the organization. Journal of Occupational Psychology, 63, 1-18. Ashforth, B. E., & Mael, F. (1989). Social identity theory and the organization. Academy of Man- agement Review, 14, 20-39. Balkin, D., & Gomez-Mejia, L. (1990). Matching compensation and organizational strategies. Strategic Management Journal, 11, 153-169. Balser, D. B. (2002). Agency in organizational inequality: Organizational behavior and individ- ual perceptions of discrimination. Work and Occupations, 29, 137-165. Barak, M. E. M., Cherin, D. A., & Berkman, S. (1998). Organizational and personal dimensions in diversity climate: Ethnic and gender differences in employee perceptions. Journal of Applied Behavioral Science, 34, 82-104. Baron, R. M., & Kenny, D. A. (1986). The moderator-mediator variable distinction in social psy- chological research: Conceptual, strategic, and statistical considerations. Journal of Person- ality and Social Psychology, 51, 1173-1182. Bock, E. W. (1967). The female clergy: A case of professional marginality. American Journal of Sociology, 72, 531-539. Bond, M. H., & Hwang, K. K. (1986). The social psychology of the Chinese people. In M. H. Bond (Ed.), The Psychology of the Chinese People (pp. 213-266). Hong Kong: Oxford Uni- versity Press. Brislin, R. W. (1970). Back-translation for cross-cultural research. Journal of Cross-Cultural Psychology, 1, 185-216. Brockner, J., & Adsit, L. (1986). The moderating impact of sex on the equity-satisfaction rela- tionship: A field study. Journal of Applied Psychology, 71, 585-590. Capozza, D., & Brown, R. (Eds.) (2000). Social identity processes. London: Sage. Chang, P. M. Y. (2000). The effects of organizational variation in the employment relationship on gender discrimination in denominational labor markets. In H. Z. Lopata & K. D. Henson (Eds.), Current research on occupations and professions: Unusual occupations (Vol. 11, pp. 213-240). Stamford, CT: JAI. Cohen, A. (1998). An examination of the relationship between work commitment and work out- comes among hospital nurses. Scandinavian Journal of Management, 14, 1-17. Cohen-Charash, Y., & Spector, P. E. (2001). The role of justice in organizations: A meta- analysis. Organizational Behavior and Human Decision Processes, 86, 278-321. Crosby, F. J. (1982). Relative deprivation and working women. New York: Oxford University Press. DeWitt, R. L., Trevino, L. K., & Mollica, K. A. (1998). The influence of eligibility on employ- ees’ reactions to voluntary workforce reductions. Journal of Management, 24, 593-613. Eagly, A. H. (1987). Sex differences in social behavior: A social-role interpretation. Hillsdale, NJ: Lawrence Erlbaum. Ensher, E. A., Grant-Vallone, E. J., & Donalson, S. I. (2001). Effects of perceived discrimination on job satisfaction, organizational commitment, organizational citizenship behavior, and grievances. Human Resource Development Quarterly, 12, 53-72. Farkas, A. J., & Tetrick, L. E. (1989). A three-wave longitudinal analysis of the causal ordering of satisfaction and commitment on turnover decisions. Journal of Applied Psychology, 74, 855-868. Fields, D., Pang, M., & Chiu, C. (2000). A comparative field study of the effects of distributive and procedural justice in Hong Kong. Journal of Organizational Behavior, 21, 547-562. Foley, S., Kidder, D. L., & Powell, G. N. (2002). The perceived glass ceiling and justice percep- tions: An investigation of Hispanic law associates. Journal of Management, 28, 471-496. Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 447 Folger, R., & Cropanzano, R. (1998). Organizational justice and human resource management. Thousand Oaks, CA: Sage. Gilligan, C. (1982). In a different voice: Psychological theory and women’s development. Cam- bridge, MA: Harvard University Press. Goodman, P. S. (1974). An examination of referents used in the evaluation of pay. Organiza- tional Behavior and Human Performance, 12, 170-195. Greenberg, J. (1986). Organizational performance appraisal procedures: What makes them fair? In R. J. Lewicki, B. H. Sheppard, & M. H. Bazerman (Eds.), Research on negotiations in organizations (Vol. 1, pp. 25-41). Greenwich, CT: JAI. Greenberg, J. (1990). Organizational justice: Yesterday, today, and tomorrow. Journal of Man- agement, 16, 399-432. Gutek, B. A., Cohen, A. G., & Tsui, A. (1996). Reactions to perceived discrimination. Human Relations, 49, 791-813. Hatch, N. O. (1988). The professions in American history. Notre Dame, IN: Notre Dame Univer- sity Press. Hofstede, G. (1980). Culture’s consequences: International differences in work-related values. London: Sage. Hofstede, G. (1993). Cultural constraints in management theories. Academy of Management Executive, 7, 81-94. Hofstede, G. (2001). Culture’s consequences: Comparing values, behaviors, institutions and organizations across nations. Thousand Oaks, CA: Sage. Holmbeck, G. N. (1997). Toward terminological, conceptual, and statistical clarity in the study of mediators and moderators: Examples from the child-clinical and pediatric psychology lit- eratures. Journal of Consulting and Clinical Psychology, 65, 599-610. Kim, W. C., & Mauborgne, R. (1998). Procedural justice, strategic decision making, and the knowledge economy. Strategic Management Journal, 19, 323-338. Lee, C., & Farh, J. L. (1999). The effects of gender in organizational justice perception. Journal of Organizational Behavior, 20, 133-143. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27-55). New York: Plenum. Major, B. (1994). From social inequality to personal entitlement: The role of social comparisons, legitimacy appraisals, and group membership. In M. P. Zanna (Ed.), Advances in experimen- tal social psychology (Vol. 26, pp. 293-356). San Diego, CA: Academic Press. McDuff, E. M. (2001). The gender paradox in work satisfaction and the protestant clergy. Sociol- ogy of Religion, 62, 1-21. McDuff, E. M., & Mueller, C. W. (2000). The ministry as an occupational labor market. Work and Occupations, 27, 89-116. McDuff, E. M., & Mueller, C. W. (2002). Gender differences in the professional orientations of protestant clergy. Sociological Forum, 17, 465-491. Mobley, W. H., Griffin, R. W., Hand, H. H., & Meglino, B. M. (1979). Review and conceptual analysis of the employee turnover process. Psychological Bulletin, 86, 493-522. Moorman, R. H. (1991). Relationship between organizational justice and organizational citizen- ship behaviors: Do fairness perceptions influence employee citizenship? Journal of Applied Psychology, 76, 845-855. Morrison, A. M., White, R. P., & Van Velsor, E. (1987). Breaking the glass ceiling: Can women reach the top of America’s largest corporations? Reading, MA: Addison-Wesley. Nesbitt, P. D. (1996). Women Clergy. In P. J. Dubeck & K. Borman (Eds.), Women and work: A handbook (pp. 181-184). New York: Garland Publishing. 448 GROUP & ORGANIZATION MANAGEMENT Nesbitt, P. D. (1997). Feminization of the clergy in America: Occupational and organizational perspectives. New York: Oxford University Press. Ngo, H. Y., Foley, S., Wong, A., & Loi, R. (2003). Who gets more of the pie? Predictors of per- ceived gender inequity at work. Journal of Business Ethics, 45, 227-241. Ngo, H. Y., Tang, C., & Au, W. (2002). Behavioural responses to employment discrimination: A study of Hong Kong workers. International Journal of Human Resource Management, 13, 1206-1223. Ngo, H. Y., & Wong, W. C. (2002). A study on work conditions of protestant clergy in Hong Kong: A brief report. Hong Kong: Hong Kong Christian Council. Northcraft, G., & Gutek, B. A. (1993). Discrimination against women in management: Going, going, gone? or going, but never gone? In E. Fagenson (Ed.), Women in management: Trends, issues, and challenges in managerial diversity (pp. 219-245). Newbury Park, CA: Sage. Parker, C. P., Baltes, B. B., & Christiansen, N. D. (1997). Support for affirmative action, justice perceptions, and work attitudes: A study of gender and racial-ethnic group differences. Jour- nal of Applied Psychology, 82, 376-389. Price, J. L., & Mueller, C. W. (1981). Professional turnover: The case of nurses. New York: Spectrum. Primeaux, P., Karri, R., & Caldwell, C. (2003). Cultural insights to justice: A theoretical per- spective through a subjective lens. Journal of Business Ethics, 46, 187-199. Randall, M. L., Cropanzano, R., Bormann, C. A., & Birjulin, A. (1999). Organizational politics and organizational support as predictors of work attitudes, job performance, and organiza- tional citizenship behavior. Journal of Organizational Behavior, 20, 159-174. Randall, C. S., & Mueller, C. W. (1995). Extensions of justice theory: Justice evaluations and employee’s reactions in a natural setting. Social Psychology Quarterly, 58, 178-194. Rosin, H. M., & Korabik, K. (1991). Workplace variables, affective responses, and intention to leave among women managers. Journal of Occupational Psychology, 64, 317-330. Sanchez, J. I., & Brock, P. (1996). Outcomes of perceived discrimination among Hispanic employees: Is diversity management a luxury or a necessity? Academy of Management Jour- nal, 39, 704-719. Schmitt, M. T., Ellemers, N., & Branscombe, N. R. (2003). Perceiving and responding to gender discrimination at work. In S. A. Haslam, D. Van Knippenberg, M. Platow, & N. Ellemers (Eds.), Social identity at work: Developing theory for organizational practice (pp. 277-292). Philadelphia: Psychology Press. Schneider, C. J., & Schneider, D. (1997). In their own right: The history of American clergy- women. New York: Crossroad. Skarlicki, D. P., & Folger, R. (1997). Retaliation in the workplace: The roles of distributive, pro- cedural, and interactional justice. Journal of Applied Psychology, 82, 434-443. Stroh, L. K., Brett, J. M., & Reilly, A. H. (1996). Family structure, glass ceiling, and traditional explanations for the differential rate of turnover of female and male managers. Journal of Vocational Behavior, 49, 99-118. Sweeney, P. D., & McFarlin, D. B. (1997). Process and outcome: Gender differences in the assessment of justice. Journal of Organizational Behavior, 18, 83-98. Tajfel, H., & Turner, J. C. (1986). The social identity theory of intergroup behavior. In S. Worchel & W. G. Austin (Eds.), Psychology of intergroup relations (2nd ed., pp. 7-24). Chicago: Nelson-Hall. Tremblay, M., & Roussel, P. (2001). Modelling the role of organizational justice: Effects on sat- isfaction and unionization propensity of Canadian managers. International Journal of Human Resource Management, 12, 717-737. Foley et al. / PERCEPTIONS OF DISCRIMINATION AND JUSTICE 449 Trentham, S., & Larwood, L. (1998). Gender discrimination and the workplace: An examination of rational bias theory. Sex Roles, 38, 1-28. Vogel, D. L., Wester, S. R., Heesacker, M., & Madon, S. (2003). Confirming sex stereotypes: A social role perspective. Sex Roles, 48, 519-528. Wharton, A. S. (1992). The social construction of gender and race in organizations: A social identity and group mobilization perspective. In P. T. Tolbert & S. B. Bacharach (Eds.), Research in the sociology of organizations (Vol. 10, pp. 55-84). Greenwich, CT: JAI. Williams, L. J., & Hazer, J. T. (1986). Antecedents and consequences of satisfaction and com- mitment in turnover models: A reanalysis using latent variable structural equation methods. Journal of Applied Psychology, 71, 219-231. Younts, C. W., & Mueller, C. W. (2001). Justice processes: Specifying the mediating role of per- ceptions of distributive justice. American Sociological Review, 66, 125-145. Sharon Foley is an assistant professor of management in the LeBow College of Business at Drexel University, Philadelphia, PA. She has a Ph.D. from the University of Connecti- cut, and her research interests include diversity in the workplace and the work-family interface. Ngo Hang-yue is a professor in the Department of Management at the Chinese Univer- sity of Hong Kong. He obtained his Ph.D. from the University of Chicago. His current research interests include gender and employment, human resource management, and labor issues in China. Angela Wong is an associate professor in the Department of Modern Languages and Intercultural Studies at the Chinese University of Hong Kong. She is also a member of the Committee on Gender Studies and the Gender Research Centre of the same University. 450 GROUP & ORGANIZATION MANAGEMENT 
work_fozbgqb2x5czjje43xd5vz7j6i	----	S2053447718000441jra 158..173 The Differend of Justice: Violence and Redemption in Dworkin’s Justice for Hedgehogs ABSTRACT: This article uses Ronald Dworkin’s argument for the unity of value to explore the redemptive core of modern legal order. Dworkin establishes a formal unity: all legal claims reside within a linked framework of moral justification. However, Jean-Francois Lyotard’s concept of the differend exposes a lingering gap. Arguments within a moral universe do inevitably converge, but such unity is only possible due to the formative violence enacted by such orders. Dworkin hopes to provide the definitive statement against moral subjectivity, but in its purest form, he proves precisely the opposite. The lesson to draw from Dworkin’s work is that ‘justice’ is ultimately only the means by which political orders categorize and thereby sustain their own formative acts of exclusion under the guise of offering their redemption. KEYWORDS: justice, interpretation, moral reason, Dworkin, Lyotard, Gadamer In Justice for Hedgehogs, the final major work of his long career, Ronald Dworkin recalls that that old line of poetry, made famous by Isaiah Berlin: ‘the fox knows many things, but the hedgehog knows one big thing’ (Berlin : ). Dworkin’s goal: nothing less than the integration of ‘theories of truth, language, and metaphysics with and into the more familiar realms of value’ (Dworkin : ). In this formulation, every seeming distinction between moral claims is facile, as are distinctions between objects of interpretation and the interpreting subject. The apparent contradictions are simply a product of thinking like a fox. Once framed correctly, the hedgehog’s perspective will reveal a deeper unity and coherence. This article takes Dworkin’s argument as an invitation to explore the possibilities and limits of justice. Hedgehogs is important, I argue, not because it fully succeeds, but rather due to the nature of its failure. Dworkin does correctly describe an underlying unity of political, moral, and legal thought. However, this unity remains incomplete. And, crucially, its incompleteness cannot be detached from its scope. As Dworkin successfully proves, the trans-historical unity of value is not unique to his approach but instead is present in every instance and formulation of justice. His failures, therefore, expose the failures of justice as such. But what exactly is the nature of this failure? Though he does not characterize it in these terms, I argue that Dworkin’s ‘unity’ is best understood as a form of fidelity to the redemptive potential of shared meaning, which regards every form of exclusion as an invitation to recuperation. This orientation toward redemption is the beating Journal of the American Philosophical Association () – © American Philosophical Association DOI:./apa.. Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://doi.org/10.1017/apa.2018.44 https://www.cambridge.org/core heart of modernity’s secular orientation—a world without theological certainty, where faith must be transferred to the architecture of justice (Schmitt ). But for all that ‘justice as redemption’ is ubiquitous, it is rarely acknowledged as such. And this clarifies the importance of Dworkin’s work. By recentering our theoretical gaze on the process of justification, and by challenging any attempt to fragment our perspective, he provides a crucial vantage point for describing and critiquing the redemptive impulse. The terms of this argument are presented in two stages. The first is a process of immanent critique, in which Dworkin’s work is compared to the hermeneutics of Hans-Georg Gadamer. While these approaches are by no means identical— indeed, Dworkin’s late career work might be read as a repudiation of his earlier dalliance with Gadamer—beneath the surface, they each embody a similar faith in the potential for integration. That is, they presume that interpretive gaps are not only amenable to negotiation, but that such negotiation is the heart of meaningful political engagement. The symmetry at this level may be most usefully understood as a shared commitment to the idea of interpretation as a technique of redemption, where justice is not defined by the elimination of exclusion but rather by the continuous practice of redeeming exclusions by fitting them into a larger scheme of justification. In Dworkin’s case, this occurs through a process of persistent self-evaluation—which regards each supposed gap as an invitation to recalibrate the linked structure of normative obligation. Gadamer rejects this integrative objective—arguing for the need to preserve interpretive gaps as the necessary terrain on which understanding may be sought. These approaches differ in both goal and method, but converge in one crucial way: for each, justice is not a result to be achieved but rather a process of continual transition—conducted in the name of a redemptive principle that exceeds material achievement. The second stage of the argument takes this immanent critique as an invitation to reflect on the limitations of justice as redemption as a form of political practice. Here, I draw on Jean-François Lyotard’s concept of the differend to illustrate the durability of a formative violence, which includes both the conceptual exclusion of meaning-making as well as the material exclusion of law-making. The differend of justice is the inextinguishable violence that resides within the structures of every moral order—which can neither be acknowledged nor resolved. It is the point of exception, which cannot even be characterized as injustice, because it exceeds the concept of justice itself. Dworkin’s own argument for the unity of moral thought provides the necessary bridge for this claim. Tracing the flows of normativity backward exposes the indelible status of redemption at the heart of every justice claim. By stripping away all the accouterments of normativity, Dworkin hopes to restore its universal potential. All political claims, he argues, are ultimately normative in nature, and therefore imply the potential to stitch together that which appears fractured. By establishing the universality of this premise, Dworkin seeks to divide the world between justice and injustice. But in this separation the excluded third is never fully resolved. It lingers on, as the foundational violence upon which its order is sustained, and against which the redemptive potential of justice is delineated. Because it cannot be incorporated, such violence is neither ‘just’ nor ‘unjust;’ it simply is. T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Dworkin deserves credit and attention for scaling the heights of theoretical inquiry. He has climbed to the highest peak of justice. Unfortunately, it is only from this vantage point that its tensions are revealed to be terminally irresolvable. I. The Unity of Value: Interpretation for Hedgehogs Justice for Hedgehogs is framed as a reformulation of ‘law as integrity’, Dworkin’s prior model of legal interpretation. That approach posited an active role for the legal thinker: to make law ‘the best that it can be’ (Dworkin : ). In contrast with the ‘plain facts’ view of law that imagines a legal order to exist in an objective sense (See Hart ), Dworkin argues that interpretation is a constructive practice that necessarily helps to generate the concept being interpreted. Given these constraints, any decision about what the law is must also be a decision about what the law ought to mean. But, simultaneously, the normative value of law cannot be disentangled from its historical location. That is: what the law ought to be depends on its interpretive community (Dworkin : –). A judge should interpret legal practices in the best light, but this is always dependent on existent communal interpretive practices that render the concept meaningful. In Justice for Hedgehogs, Dworkin criticizes this old approach. Law as integrity, he now argues, suffered from a critical lacuna. As a theory of legal interpretation, it could instruct a judge how to act with integrity but it lacked the scope needed to justify why a judge should adopt this method in the first place. In effect, its interpretive mode required an act of faith in the principle that law deserves to be treated with integrity. This means its entire apparatus was parasitic on a prior, external choice to affirm a ‘larger integrated network of political value’ that enframes the entire structure of legal reason (Dworkin : ; see also Prǐbáň : –). Law as integrity, in this way, smuggled the notion of fidelity to law into the process of interpreting it. The realization that law as integrity presumed a truth it lacked the capacity to justify leads him to broaden his perspective. In doing so, he concludes that all interpretation follows this same structure—any moral statement necessarily contains an implicit self-affirming principle that statements can in fact be valid (Dworkin : ). Furthermore, this principle extends to ‘nonmoral’ statements as well. After all, stating the absence of an obligation is simply a reconfigured moral judgment, insofar as it asserts the truth of nonobligation (Dworkin : –). This insight is similar to Nietzsche’s that even the most absolute critique of morality remains grounded in a will to truth, which is not the remainder of an ideal but is ‘this ideal itself in its strictest, most spiritual formulation, esoteric through and through, with all external additions abolished, and thus not so much its remnant as its kernel’ (Nietzsche : ). However, while Nietzsche sees this as reason to doubt the practice of truth itself, Dworkin interprets this as a call to reaffirm truth’s unity. In his view, even the most profound relativism retains a standpoint from which the impossibility of judgment can be articulated. Thus, the arguments of positivists, deconstructionists, and all those in between suffer from the same basic flaw: they rely on an external form of skepticism that looks beyond itself for justification, seeking an Archimedean point from which one may judge  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core morality from outside morality (Dworkin : ). But since such a point cannot exist, any justification must come from within. Therefore, Dworkin argues, moral judgment must be regarded as a single, unified set of interpretive obligations. There are no objective, bare truthsin moraljustification; there are only reasons. If a claim is true, it is only because a reason makes it so. The resulting system of reasons is defined by interpretive consistency: moral claims are true when they fit together with other moral claims and false when they cannot be incorporated into the fabric of a moral universe. There is no standpoint from which to evaluate truth outside these moral claims. It is, as the saying goes, turtles all the way down. Moreover, since external resolution is impossible, ‘the argument ends when it meets itself, if it ever does’ (Dworkin : ). This does not, however, mean that truth is simply up for grabs. After all, ‘morality is in the eye of the beholder’ is a self-refuting claim, since it relies on a will to truth that exceeds the scope of its argument. Durable disagreement over the nature of morality is inevitable, but this does not disprove the unity of value; it merely reveals the need for further interpretive refinement (Dworkin : ). All claims are moral, but the only truthful moral claims are those that affirm the possibility of a shared interpretive obligation. If this is correct, then the essential moral object is not truth itself, but instead is a fidelity to the search for truth, and the unifying structure of moral reason is the principle of responsibility and mutual respect (Dworkin : ). II. The Role of History: Fidelity or Transcendence? Dworkin believes that the hedgehog’s approach, which treats law as merely ‘a branch, a subdivision, of political morality’ provides a unified picture of the world (Dworkin : ). The seed of this idea was present in his earlier formulation of law as integrity, but that seed could only reach its potential once detached from the confines in which it had been formulated. It is worth dwelling for a moment on precisely what is sacrificed in this move. Law as integrity was defined by the productive tension between two distinct interpretive responsibilities: ‘best light’ and ‘fit’. To interpret a law in the best light is to attach it to a larger process of moral judgment. By contrast, ‘fit’ means that judges are tasked with seeing a thing as the best version of that thing and not some other thing. This requirement of fit signifies that ‘the history or shape of a practice or object constrains the available interpretations’ (Dworkin : ). Here, it is worth noting that Dworkin approvingly cites Gadamer, ‘whose account of interpretation as recognizing, while struggling against, the constraints of history strikes the right note’ (Dworkin : ). The Progressive Case against Tradition In Justice for Hedgehogs, Dworkin splits apart the relationship of fit and best light. Now, the best version of law is simply the one that expresses its value in a unified fashion. The frame of reference is one’s own moral universe, which should include fidelity to the object of inquiry, but which always conceives of that fidelity as T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core conceptually contained within to the larger demand for unity. Accordingly, while a historical perspective will often be crucial to grasping the contours of moral truth, there is no obligation to honor such history beyond the value contained in the content of its moral claims. To do otherwise would trap the moral structure of reason within the amber of a particular historical tradition (Dworkin, : , , ). The danger here is particularly acute in the case of extreme evils located in a collective past. Why treat decisions such as Dred Scott or Korematsu with integrity? They are historical facts, but facts whose validity should be actively written out of existence (See Donato ; Fleming ). Indeed, for Drucilla Cornell and Nick Friedman (), Dworkin’s new approach is laudable precisely because he now treats history as merely one moral object among others. By rejecting ‘the precedence of the past over both the present and the future’ he returns judgment to its proper location: a progressive present tense (Cornell and Friedman : ). Habermas () clarifies the significance of this move, arguing that the inherent imbalances within history necessarily structure interpretation. As such, hermeneutics is subject ‘to the repressivity of forces which deform the intersubjectivity of agreement as such and which systematically distort everyday communication. It is for this reason that every consensus, as the outcome of an understanding of meaning, is, in principle, suspect of having been enforced through pseudo-communication’ (Habermas : ). Hermeneutic engagement requires good faith from all parties, but history can never play such a role. Its deformities, therefore, will be incorporated into the present without challenge, thus ‘nullifying or rendering absurd our emancipatory aspirations’ (How : ). In this way, the unbridgeable prejudices of the past are built into the hermeneutic relationship by the simple act of taking them as legitimate. According to the progressive argument, Dworkin was correct to dispense with his Gadamerian inclinations. The hermeneutic perspective is a useful model for approaching interpretive engagement, but fidelity to the text is a means for pursuing truth, not an independent value. By the same light, tradition is valuable only insofar as a unified conception of value gives us good reason to regard it as such. Past wrongs are not to be respected simply because they are part of a continuing order, but instead should be excised to help sustain a genuinely unified moral order. The ideal act of interpretation draws the external object out of its original time and place to make it present. It expresses the ever-evolving truth of an omnipresent now, in which the past is never truly past but instead is renewed by the constant obligation of justification. Gadamer and Dworkin’s Lost Horizons To Dworkin, this move away from Gadamerian hermeneutics is necessary. It is worth considering, however, whether the opposite move might have been superior. After all, Gadamer would likely argue that Dworkin’s recuperative attitude toward truth is the real problem. The unity of value implies that every dissonance may ultimately be expressed through incorporation; the appearance of the gap disappears in the expression of underlying truth. But what if the presence of difference is the very condition of thought?  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core For Gadamer, understanding is not something possessed by subjective agents but instead is implicit in the structure of conversation itself (Gadamer : ). Truth, to the extent that it is possible, is constituted by the space between a subject and a text; it is not something discovered or articulated by the subject. In this process, the enduring friction generated by the discontinuity between worlds is the necessary precondition for understanding. The Enlightenment has taught us to treat prejudice as an unadulterated negative, as the bane of objectivity and the prioritization of self-interest over justice. But this is itself a (specifically modern) prejudice: paradoxically, a prejudice against prejudice (Gadamer : ). The flaw of this approach is its desire to generate knowledge, as opposed to understanding—and thereby to achieve control rather than engagement (Gadamer : xxxii). Knowledge takes place within the boundaries of a horizon; it depends on the preformed network of concepts and effective history. The place of a subject in a particular moment provides her with a broad but finite horizon of potential understanding. Understanding, by contrast, shifts horizons. By engaging with a perspective outside of an effective history, one’s own perspective must also shift. Understanding only emerges when horizons overlap, provoke conflict, fuse. It requires openness as well as tension. Thus, what Dworkin diagnoses as holes in a unified order—the unfilled spaces between reasons and their justification, between subject and object, between past and present—Gadamer treats as necessary. A world without gaps would need no bridges and thus would produce no understanding (Gadamer : xxviii). Indeed, understanding is nothing but the temporary bridges built across these gaps. Rather than seeking to fill these holes, we should regard the lingering dislocation they produce as essential to meaning-making. By this argument, we might characterize Justice for Hedgehogs as terminally misguided. Faced with the inherent doubt that comes from fusing horizons—its imperfection and incompleteness—Dworkin shies away. He perceives this insecurity as dangerous, and therefore seeks to quash it under the weight of moral unity. But this task is ultimately fruitless. He will inevitably reach, as Wittgenstein might say, a bedrock where his spade is turned and whatever justification may be supplied beyond this point is simply ‘a kind of ornamental coping that supports nothing’ (Wittgenstein : §). And there, faced with the seeming nihilism at the heart of interpretation, he ‘would rather will nothingness than not will’ (Nietzsche : ). From the hermeneutical perspective, then, Dworkin’s choice to double down on the principle of unity is a colonizing act, an attempt to compel coherence and meaning. This effort can only produce a false form of closure, in which the interpreter claims to discover truth that she herself has in fact created. In the name of truth, the hedgehog eliminates the possibility of understanding. III. Interpretation as Redemption: The Formal Unity of Interpretive Approaches The debate described in the previous section—progressive unity versus hermeneutic disjuncture—is organized primarily around a presumed break between Dworkin’s T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core old and new approaches. Where he once aligned with the Gadamerian model of effective history and thereby sided (at least partially) with the foxes, he has now chosen the logic of the hedgehog. Framed in this way, the key question raised by Justice for Hedgehogs is simply whether this choice is justified. Was Dworkin right to reduce the force of history, to side with the progressive model of free-floating reason? However, the caesura between these perspectives is smaller than it seems. While different in some respects, these approaches might best be understood as a parallax effect: the result of looking at the same phenomenon of judgment from different vantage points. Ultimately, each of these interpretive approaches is founded on a redemptive narrative, which treats the persistent fact of difference as an opportunity for the recuperation of order. The meaning of this process may be characterized in an almost limitless variety of ways—with fidelity to an interpretive past or to a timeless morality being merely a small subset of the possibilities. But in any case, the one thing justice cannot mean is the straightforward admission of unjustifiable violence at the heart of political unity. Such violence is the theological remainder, the necessary byproduct of endless and irresolvable debates over interpretation (Schmitt ). We are asked to justify, but all justification occurs only against the background of debts that may never be repaid, owed to those whose very existence was nullified to establish the specific, material present within which such debates take place. The full ramifications of this effect are explored below in section IV. First, however, the convergence of these seemingly distinct approaches must be mapped. The Redemptive Core of Law as Integrity To define the structure of this redemptive impulse, it is helpful to start with Dworkin, and the supposed shift from law as integrity to the unity of value. What we find is far more similarity than difference in these approaches. Indeed, every significant element of the argument from Justice for Hedgehogs is prefigured in the earlier work. For the early Dworkin, the commitment to the past as a distinct obligation is real, but is nevertheless framed as a mechanism for stabilizing the present coherence of moral reason (Hutchinson ). Judgment means regarding the mistakes of the past as negated principles. We honor the story of the law through its progressive reconstitution: binding together past and present by conceiving of mistakes as amenable to rectification through the law—rather than through revolution. This teleology of progress provides a mechanism for affirming the principles of a moral order against its historical failures (Meister : –). The contiguous principles that unify a constitutional history come to life precisely through their progressive incorporation into the present. Understood this way, the obligation of fit was never a genuine commitment to the externality of history, but rather was an internal obligation of reason. Its emphasis on unity always required incorporation of the past into the present; the river could only flow in one direction. The priority of moral coherence is absolute, while the obligation to an imagined past endlessly recedes.  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Therefore, Justice for Hedgehogs merely states clearly what was already implicit: both integrity and the unity of value stem from the impulse to read the positive values of a moral order against its failures, to redeem the system by situating its core principles against those past injustices. Doing so honors the continuity of community while redeeming what we now take to have been erroneous (See Balkin ). To speak of justice, in either case, is to affirm a basic shared human dignity, which shows that no one is irredeemable. Dworkin’s interpretive method was never in need of rescue from a conservative reliance on tradition over present judgment; rather, it needed a philosophical justification for why the present is permitted to colonize its subject. Justice for Hedgehogs provides that justification, by treating it not as colonization but instead as redemption. The Redemptive Core of Gadamer’s Hermeneutics What then of Gadamer? Does he not provide an alternative approach, one untainted by such universalizing structures? If law as integrity is a failed hermeneutics, one implicitly guided by the hedgehog’s impulse, why paint Gadamer with the same brush? After all, his approach is built around active resistance to the incorporative techniques of enlightenment thought, which collapse the incommensurable gap between past and present into a unifying logic of reason (Gadamer: –). However, as Jacques Derrida argues, the very attempt to theorize this gap itself imposes a form of unity. Even as Gadamer attempts to evade the logic of rationality, his interpretive procedures necessarily reimpose a will to meaning. This is because ‘we can pronounce no single destructive proposition which has not already had to slip into the form, the logic, and the implicit postulations of precisely what it seeks to contest’ (Derrida : –). The very act of interpretation involves the generation of order. In particular Derrida focuses on the concept of ‘good will’, which, for Gadamer, is the necessary condition for successful interpretation. It does not insist on the construction of a single truth but rather seeks the understanding that is possible among truths. This permits consensus without agreement (Gadamer : ). This notion of good will, however, is ill-equipped for the hidden traps and closures that Derrida sees as intrinsic to communication. Even more, good will is infeasible in the context of an unreliable interlocutor. For good will to produce understanding, both the subject and object of interpretation must remain open to the other (Gadamer : ). But this cannot account for objects of inquiry that actively seek to block shared meaning. For example, this is a problem in psychoanalysis, where ‘the aim is to understand, not what the other wants to be understood, but exactly that which the patient wishes to conceal’ (Shapcott : ). Once again, the fact of historical wrongs clarifies this problem. When interpreting the law, one must constantly struggle with a legal history replete with grave exclusions. The Gadamerian interpreter, facing such a reality, is forced to search for a foothold of good faith—a way in which the exclusion may be understood without being affirmed. This is not likely to be framed as a project of ‘justice’, but T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core the resemblance is uncanny. Just as with Dworkin, the desire to understand the legal order implicitly contains an expression of faith in the potential good will of its structure. One must be willing to read its failures as horizons not yet fused or else abandon the prospect of interpretation as such. This faith, as with Dworkin, enacts a narrative of continuity. Moreover, the manner in which horizons may be fused depends on a hidden form of exclusion, stemming from the necessity for mutuality. While engagement may shift horizons, it can only occur if both sides are willing to put themselves at risk. This means that the ‘hermeneutic experience extends as far as does reasonable beings’ openness to dialogue’ (Gadamer : , emphasis added). While he intends this to clarify the essentially limitless scope of dialogue, it is crucial to note how casually Gadamer slips into the language of reasonableness. Indeed, as framed here it is quite difficult to distinguish meaningfully his theoretical structure from that of Rawlsian political liberalism. Both require the posited framework of the reasonable—defined as the willingness to converse on terms that that arise out of but do not impose any particular effective history (See Rawls : –). Gadamer fills this concept of reasonableness with less content than Rawls, to be sure, but this does not alter the basic formal similarity. Therefore, Gadamer is no better equipped than the liberals to deal with the circularity of this concept. What distinguishes reasonable subjects (with whom understanding may be achieved) from enemies (who seek only destruction)? Only the judgment of reasonable subjects—who mark themselves as reasonable through their willingness to engage. The unreasonable other is thus conceptually essential —it clarifies the capacity for dialogue through its absence—but also necessarily excluded (See O’Neill , Schmitt ). The result is a form of stasis, in which such unreasonable outlaws linger in a sort of perpetual limbo and mark the undefined exteriority of hermeneutic engagement. In Derrida’s terms, this reveals that the supposed ‘continuity of rapport’ at work in hermeneutic understanding is in fact built upon ‘the interruption of rapport, a certain rapport of interruption’ (Derrida : ). Redemptive Unities: The Search for Truth Each of these interpretive models is struggling with the same problem: how to articulate a concept of fit that does not self-destruct under the weight of an interpretive unity. Because none can accomplish this goal, they default to redemptive stories, whereby the remaining gap between what is best and what is understood may be justified. In one form or another, that gap is treated as an invitation to justification. In this respect, they all construct theodicies, interpretive models meant not just to explain the fact of evil but also to incorporate that evil into a broader narrative of the good. In a certain sense, therefore, Dworkin’s argument in Justice for Hedgehogs is correct. He quite brilliantly demonstrates that there is no ‘outside’ to value; it encompasses the entire universe. Further, this universality of value is intrinsic to every interpretive effort. However much an approach might pay fealty to the notion of openness, that commitment is founded on the imposition of order. The  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core hedgehog’s justice is therefore neither more progressive nor more universal than any other approach: it merely expresses those features with greater clarity. However, this is a hollow victory. Dworkin has revealed a universal structure, but in the process has lost hold of its meaning. As I explain in the next section, the redemptive impulse may inflect all moral claims, but in doing so it merely clarifies the impossible task of expunging the ghosts that haunt our political universe. IV. The Differend of Justice: Violence beyond Redemption Dworkin convincingly argues for an infinite system of value—an unbounded universe of moral claims. However, this infinity remains sharply constrained. Within it, one may travel endlessly, but the journey only leads in a circle back to the same location. It is therefore a secular infinity, one without beginning or end, an eternal present. The different techniques of interpretation (law as integrity, the unity of value, Gadamerian hermeneutics, utilitarianism, positivism, the original position, etc.) each generates its own flavor of infinity, but all of these approaches share the same underlying problem, a variation of Russell’s paradox: they seek to create a set of all things but cannot account for the system of thought necessary to generate such a set in the first place (Barrow : –, –). In the case of the law, this obscures the lingering necessity of legal decision—something that can be justified by, but never incorporated into, the unity of value. This section seeks to clarify the extent of this limit. It does so by applying Lyotard’s concept of the differend to the practice of moral reason. To explain: the differend is a lingering injury that falls outside the accepted terms of the language game in which it is manufactured. It cannot be addressed on the terms of a shared interpretive structure because it represents pain beyond articulation. It is like an untranslatable word, whose meaning is altered when expressed in a different language. To the extent that it can be filtered into a new language it loses an element of its own identity; it becomes a new, slightly different concept. For example, any attempt to litigate the Holocaust founders on the incapacity for legal concepts to capture the world-destroying nature of that act. To litigate the crime washes away its unique texture and renders it banal (Lyotard : –). The well-meaning attempt to express fidelity to victims falters in the face of the ineffable reality of the act. In making this argument, Lyotard treads on familiar ground. Like Dworkin and Gadamer, he also emphasizes the endlessly recursive process of understanding, the impossibility of stepping outside interpretation. For him this is expressed: ‘To doubt that one phrases is still to phrase’ (Lyotard : xi). Just as an argument against moral obligation is still a moral argument, to reject the representational capacity of language is still to make a representational claim. Any attempt to limit the scope of interpretation, therefore, is self-contradictory. The ‘last phrase’ ceases to be final as soon as it is named as such (Lyotard : ). As such, Lyotard shares the perception that judgment is limited to endless recirculation with no objective resolution. The key difference is his attitude toward this limitation of reason. For Dworkin, the lack of external certainty proves the unity of value; if there can be no permanent T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core foundations, all that is left is a secular world of linked justifications, a closed universe. But what if the question of externality is divorced from the question of foundations? Self-justifying grounding may be impossible, but this does not foreclose the possibility of a second type of external object: remainders. While foundations are positive externals—they provide the secure basis from which a moral claim may be advanced—remainders are negative exclusions. They exist in a space beyond reason and evade explanation or even comprehension (Badiou : ). The defining feature of every concept of justice in our secular age is its attitude toward such remainders. In every case an attempt is made to formalize them, to comprehend them, to make them explicable. They cannot be erased in a material sense—violence and exclusion are indelible features of a world without God—but they can be neutralized. This entails fitting them into a conceptual scheme, sorting them, explicating them. As soon as one is capable of correctly formulating the act of violence, it ceases to be arbitrary; it is given meaning through its articulation. Justice is therefore the practice by which distinctions are drawn between forms of exclusion. In the first case are those who suffer for no cause (victims). In the second case are those who inflict suffering without justification (perpetrators). The line is drawn in this fashion in order to generate legitimacy for a certain kind of violence: the punishment meted out by a collective will. The collectivization of judgments on violence is necessary to restrain victims from lashing out and thus becoming perpetrators of violence themselves (Meister : ; see also Locke : – , ). In a very real sense, justice is nothing else but the performance of this distinction. It comes into being through the administration and organization of violence—the construction of formal mechanisms through which the disjuncture of injustice is redeemed, and thereby reincorporated into the legal order (Benjamin ). Formative Violence Material violence, then, generates the tension through which justice may come into being. Law’s core function is to concretize this distinction, to divide the world between legitimate and illegitimate violence. This task, however, utterly founders when it encounters violence that is neither (Derrida ). This is a formative violence, which exceeds the politics of gain and loss. It cannot be expressed in terms of justice, but is a revolutionary and creative violence—the clearing away of space so that normative order may be written. The violence of this enclosure is never merely conceptual but instead depends on the active destruction of those who threaten to disrupt it (Schmitt : –). The American case offers a particularly stark picture: the continent-wide project of Indian extermination that was necessary for the formation of a new United States (Meister : ; Gerstle : –; Saxton : ). However, the problem is not uniquely American. Every legal order is built on the ashes of that which came before. We are all ‘taking the place (or living on the ruins) of a vanished civilization’ (Meister : ). If it is turtles all the way down, then each turtle is birthed out of the ashes of those that came before.  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core Such violence—the initial expression of law’s aporia—is permanently locked into the past. It therefore exceeds any potential for remedy. It is the lingering silence of those who have been cast aside by history: the differend of justice. The victims of this exclusion cannot be cast within the frame of ‘victim’ and ‘perpetrator’ because they no longer exist. There are no victims left, and the ruins of preexisting civilizations cannot ask for justice. At the same time, no one can be marked as perpetrator when all that remain are equally the beneficiaries of the absence in which their order has been formed. The community of justice, by the very logic of interpretive unity that binds them to the concept, cannot accept the thought of unredeemable collective communal guilt for a mass injustice. Instead, they must treat justice as the obligation to ‘deplore what happened to prior inhabitants without wishing that it hadn’t’ (Meister : ). Certainly, this is the story told by secular modernity: right and wrong may be judged only through the lens of finitude. However, Dworkin’s brilliant unification of all interpretive models under the framework of justice clarifies that formative violence must inevitably seep back into the practices of everyday justice. Because every judgment is linked together, no judgment is free of its origin. The battle must constantly be refought. Every ‘interruption’, to borrow Derrida’s phrase, must be brought into the fold, through violence if necessary. Such violence is justified because the alternative would be to acknowledge the existence of exclusion beyond the reach of justice. Further, this process can never be ended. In drawing the distinction between victim and perpetrator, the judge must always generate a third perspective capable of evaluation. This third standpoint necessarily lies outside the supposedly universal logic of justice. And any effort to incorporate that third will only generate a new position of judgment, against which the original concept may then be judged. This recursive impossibility for incorporation constitutes a ‘meta-differend’ intrinsic to the idea of discussion (Lyotard : ). Each individual case of injustice thus appears available for incorporation, but the position of judgment itself always lingers as a remainder. The goal of law, therefore, is always both an attempt to remedy injustice by incorporating it into the moral order and an effort to exterminate the lingering violence that defies incorporation. As such, even the fusing of horizons can never be truly open; it always includes an element of colonization: even if only in the characterization of that which refuses understanding to be ‘unreasonable’. The cover of legitimacy thus eradicates the particularity of the victim’s suffering. By fitting it into a scheme of ultimate redemption, it ‘ultimately preordains the irreducible experience of suffering to a foretold redemption, meaning that [it] doesn’t really allow suffering to be in its otherness but has already reduced it to sameness beforehand’ (Badiou : ). These logics of redemption serve a very specific purpose. They are not merely free-floating theories but instead are necessary and inevitable results of a system of law founded on the depoliticization of radical violence. The redemptive narrative isolates the fact of violence, modulates it, legalizes it. It treats the fact of violence as an inspiration to justification, to a logic of persuasion, whose goal is not to justify the coercive act to those upon whom it is exercised but instead is to justify T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core it to those who must enact it. To organize the concept of law around this goal entails drawing together a community who may then punish those who remain exterior. The force of law is justified entirely by the fact that such outlaws could have been persuaded but chose not to be. Law’s Violence: Pain and Legal Interpretation This problem is expressed well by Robert Cover (), in his excellent critique of Law’s Empire. For Cover, Dworkin’s approach is dangerous because it focuses on the procedure of justification and writes out the existence of the subject upon whom this law is written. The outlaw who suffers the decision is reduced to being nothing but the receptacle of legal violence. For such a person the law produces no redemption but only the bare fact of pain (Cover : ). Such pain, by its nature, can never be fit into the realm of justification; indeed, pain ‘destroys language itself’ (Cover : ). For example, in the case of torture, even a full confession cannot confirm the legitimacy of the process. The concern here is not that torture violates a moral principle (as Dworkin might argue) and is therefore unjustifiable. Such reasoning operates within the flux of moral persuasion, and is therefore susceptible to rewriting—with both substantive arguments (exceptional need) and/or procedural ones (appropriate restraint/due process) available to offer legitimation for the act. Dworkin would likely reject such justifications as incorrect assessments of moral obligation, but this is precisely the problem. Torture cannot be folded into a rational judgment about value because the entire purpose of torture is to break the rational world apart (Cover : ). Between the wielder and object of pain, no shared community is possible and ‘any commonality of interpretation that may or may not be achieved is one that has its common meaning destroyed by the divergent experiences that constitute it’ (Cover : ). Consider the scenes at the end of , in which O’Brien tortures Winston Smith with the goal of completely realigning Smith’s subjectivity. The experience of pain destroys resistance not by overwhelming the desire for freedom but rather by breaking the capacity to understand freedom as anything other than slavery (Orwell, , –). It may seem overly dramatic to analogize torture and the abstract workings of a legal system, but at root they employ the same logic. The law is not simply an abstract phenomenon; it ‘is built only to the extent that there are commitments that place bodies on the line’ (Cover : ). And the important binding feature of law is not the people’s willingness to affirm its principles but rather is their commitment to make themselves martyrs to its purpose, that is: to commit violence in its name. That such martyrdom has become highly formalized and abstract in the modern world does not change the underlying fact. Judicial decisions that purport to honor the hermeneutic process necessarily overlook the institutional structure of those judgments; they miss the ‘pre-legal’ feature of legal interpretation (Goorden ). The law is a political object, one held together by the collective administration of violence in the name of (a particular concept of)  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core justice (Dallmayr : –). And the interpretive community of law is always a finite body built against its excluded remainders. In this way, the formative violence of law is manifested in every decision. Law’s structural exclusion is not simply the abstract loss of faded civilizations; it is instead carried forward through the act of interpretation and made present in every new decision. As a permanent disjuncture in the concept of justice, formative violence ensures the continual reenactment of daily exclusion. The judgment is made to distribute pain, but that pain cannot be conceptually fit into the normative order of justice. It is neither just nor unjust. It simply is. And behind the veil of interpretation lie only material bodies that suffer, bereft of law’s redemption. Cover’s analysis of the world-destroying fact of pain demonstrates the very real consequences. A brick wall of implicit violence blocks the persuasive appeal of law from obtaining universality. In the body of the accused criminal, its terminal breakdown is made clear. Recall Dworkin’s argument that moral reason is founded on the doctrine of responsibility: that one must treat others as objectively important in order to make any moral claim. The dark underside of this premise is made clear in an innocent-seeming passage about mutual recognition. Because respect is mutual, he argues, moral agents must respect others ‘only so far as they accept the burden of responsibility . . . because only then do they really accept that equal importance’ (Dworkin : ). The criminal facing the violence of incarceration, or the exterminated ghosts of the past, will find little comfort in this sense of mutual respect. V. Justice and the Limits of Reason The desperate need of every political philosophy is to translate unlimited (and thus incomprehensible) violence into ‘injustice’. Once so rendered, such exclusion can be redeemed by isolating its pain as past and drawing its injunction for reparation into the present. However, such redemption is always incomplete, founded as it is on the erasure of that violence which cannot be transmuted in this way. To illustrate this process, I have explored three seemingly distinct interpretive modes. Using the framework set up in Justice for Hedgehogs, the apparent differences collapsed into a larger unity: the goal of redemption. Each one, in a distinct way, reflects the underlying logic of life in an inter-messianic, secular age. They arise from the need to cope with irresolvable doubt. That coping takes the form of second chances. Hope is never extinguished but instead comes to life through the continual process of redeeming evil. What has become clear is that this approach founders on its conceptual limits. The interpreting subject lives within a moral universe but cannot grasp the formative violence that is enacted by a moral universe (its differend). And this interpretive gap is occluded by the concept of justice. Dworkin attempts to resolve the tempestuous battle that has defined modern politics—legality versus legitimacy, morality versus politics. He observes a perpetual indeterminacy and refuses to collapse the contradiction by choosing a side. Armed with a deep faith that goodness may be found within the scope of T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core human reason, he reaches into Schrödinger’s box and draws out a hedgehog. However, this very faith is itself the perfect realization of reason’s limit. By sanding away all the rough edges from the normative case for justice and expressing it in all-encompassing terms, Dworkin takes us onto ‘slippery ice where there is no friction and so in a certain sense the conditions are ideal, but also, just because of that, we are unable to walk. We want to walk: so we need friction. Back to the rough ground!’ (Wittgenstein : §). That is: by treating justice as a subject of reason, he removes it as far as possible from the active practice of law. If justice is simply a matter of persuasion, then the enactment of its precepts becomes relegated to mere enforcement. What is lost here is the way in which such enforcement, the delineation of a line between us and them, is the essence of judgment itself. In this, law’s violence is fully externalized; it becomes the differend of law. Justice for Hedgehogs, by seeking completely to eliminate the exclusions of politics that stem from a relativistic worldview, circles entirely around to meet itself on the other side. Its terminal point of enclosure is found by reversing its most basic maxim. If relativism is always a moral concept, then so is the opposite true: every moral concept is ultimately a form of relativism. And the more that justice is differentiated from the world-breaking fact of violence, the closer it comes to enacting precisely the violence it seeks to end. CHARLES OLNEY UNIVERSITY OF TEXAS AT RIO GRANDE VALLEY charles.olney@utrgv.edu References Badiou, Alain. () Five Lessons on Wagner. Translated by Susan Spitzer. London: Verso. Badiou, Alain. () Wittgenstein’s Antiphilosophy. Translated by Bruno Bosteels. New York: Verso. Balkin, Jack. () Constitutional Redemption: Political Faith in in an Unjust World. Cambridge, MA: Harvard University Press. Barrow, John. () The Infinite Book: A Short Guide to the Boundless, Timeless and Endless. New York: Pantheon Books. Benjamin, Walter. () ‘Critique of Violence’. In Marcus Bullock and Michael Jennings (eds.), Selected Writings, Vol. , – (Cambridge, MA: Harvard University Press), –. Berlin, Isaiah. () The Hedgehog and the Fox: An Essay on Tolstoy’s View of History. London: Weidenfeld and Nicolson. Cornell, Drucilla, and Nick Friedman. () ‘The Significance of Dworkin’s Non-Positivist Jurisprudence for Law in the Post-Colony’. Malawi Law Journal, , –. Cover, Robert () ‘Violence and the Word’. Yale Law Journal, , –. Dallmayr, Fred. () ‘Hermeneutics and the Rule of Law’. In Gregory Leyh (ed.), Legal Hermeneutics: History, Theory, and Practice (Berkeley: University of California Press), –. Derrida, Jacques. () Writing and Difference. Translated by Alan Bass. Chicago: University of Chicago Press. Derrida, Jacques. () ‘Three Questions to Hans-Georg Gadamer’. In Diane Michelfelder and Richard Palmer (eds.), Dialogue and Deconstruction: The Gadamer-Derrida Encounter (Albany: State University of New York Press), –.  C H A R L E S OL N E Y Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. http://orcid.org/0000-0002-8512-5181 mailto:charles.olney@utrgv.edu https://www.cambridge.org/core Derrida, Jacques. () ‘Force of Law: The Mystical “Foundation of Authority”’. In Drucilla Cornell, Michael Rosenfeld, and David Carlson (eds.), Deconstruction and the Possibility of Justice (New York: Routledge), –. Donato, James. () ‘Dworkin and Subjectivity in Legal Interpretation’. Stanford Law Review, , –. Dworkin, Ronald. () Law’s Empire. Cambridge, MA: Harvard University Press. Dworkin, Ronald. () Justice for Hedgehogs. Cambridge, MA: Harvard University Press. Fleming, James. () ‘Fidelity to Our Imperfect Constitution’. Fordham Law Review, , – . Gadamer, Hans Georg. () ‘Reply to Jacques Derrida’. In Diane Michelfelder and Richard Palmer (eds.), Dialogue and Deconstruction: The Gadamer-Derrida Encounter (Albany: State University of New York Press), –. Gadamer, Hans-Georg. () Truth and Method. New York: Continuum. Gerstle, Gary. () American Crucible: Race and Nation in the th Century. Princeton, NJ: Princeton University Press. Goorden, Dean. () ‘Dworkin and the Phenomenology of the “Pre-Legal”?’. Ratio Juris, , –. Habermas, Jürgen. () ‘The Hermeneutic Claim to Universality’. In Gayle Ormiston and Alan Schrift (eds.), The Hermeneutic Tradition: From Ast to Ricouer (Albany: State University of New York Press), –. Hart, H. L. A. () The Concept of Law. Oxford: Clarendon Press. How, Alan. () The Habermas-Gadamer Debate and the Nature of the Social: Back to Bedrock. Brookfield: Avebury. Hutchinson, Allan. () ‘Indiana Dworkin and Law’s Empire’. Yale Law Journal, , –. Locke, John. () Second Treatise of Government. In Peter Laslett (ed.), Two Treatises of Government (Cambridge: Cambridge University Press), –. Lyotard, Jean-François. () The Differend: Phrases in Dispute. Translated by Georges Van Den Abbeele. Minneapolis: University of Minnesota Press. Meister, Robert. () After Evil. New York: Columbia University Press. Nietzsche, Friedrich. () On the Genealogy of Morals. Translated by Walter Kaufmann and R. J. Hollingdale. New York: Random House. O’Neill, Onora. () ‘Political Liberalism and Public Reason: A Critical Notice of John Rawls, Political Liberalism’. Philosophical Review, , –. Orwell, George. () . New York: Signet Classic. Prǐbáň, Jirí̌. () ‘The Time of Constitution-Making: On the Differentiation of the Legal, Political and Moral Systems and Temporality of Constitutional Symbolism’. Ratio Juris, , –. Rawls, John. () Political Liberalism. New York: Columbia University Press. Saxton, Alexander. () The Rise and Fall of the White Republic: Class Politics and Mass Culture in Nineteenth Century America. London: Verso. Schmitt, Carl. () Political Theology: Four Chapters on the Concept of Sovereignty. Translated by George Schwab. Cambridge, MA: Massachusetts Institute of Technology Press. Schmitt, Carl. () The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Translated by G. L. Ulmen. New York: Telos Press. Shapcott, Richard. () Justice, Community and Dialogue in International Relations. Cambridge: Cambridge University Press. Wittgenstein, Ludwig. () Philosophical Investigations. Translated by G. E. M. Anscombe. New York: MacMillan. T H E D I F F E R E N D O F J U S T I C E  Downloaded from https://www.cambridge.org/core. 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use. https://www.cambridge.org/core The Differend of Justice: Violence and Redemption in Dworkin's Justice for Hedgehogs Abstract The Unity of Value: Interpretation for Hedgehogs The Role of History: Fidelity or Transcendence? The Progressive Case against Tradition Gadamer and Dworkin's Lost Horizons Interpretation as Redemption: The Formal Unity of Interpretive Approaches The Redemptive Core of Law as Integrity The Redemptive Core of Gadamer's Hermeneutics Redemptive Unities: The Search for Truth The Differend of Justice: Violence beyond Redemption Formative Violence Law's Violence: Pain and Legal Interpretation Justice and the Limits of Reason References 
work_fseoxlznezadzabz7yazkz6xg4	----	GENDERED VIOLENCE AND RESTORATIVE JUSTICE: THE VIEWS OF VICTIM ADVOCATES SARAH CURTIS-FAWLEY 32 CUMBERLAND AVE CUMBERLAND PARK, SA, 5041, AUSTRALIA 8-8357-0205 (HOME) 413-592-323 (MOBILE) SCURTISFAWLEY@YAHOO.COM KATHLEEN DALY SCHOOL OF CRIMINOLOGY AND CRIMINAL JUSTICE GRIFFITH UNIVERSITY, MT GRAVATT CAMPUS BRISBANE, QUEENSLAND 4111, AUSTRALIA 7-3875-5608 (FAX) 7-3875-5625 (OFFICE) K.DALY@MAILBOX.GU.EDU.AU We would like to thank the advocates who participated in this study for their enthusiasm and honesty, the Australian-American Fulbright Commission for supporting Sarah Curtis-Fawley to travel to Australia to undertake this research, and the Australian Research Council for supporting Kathleen Daly?s program of research on the race and gender politics of new justice practices. We would also like to extend special thanks to research assistant Brigitte Bouhours. Key Words: Restorative justice, gendered violence, victim advocates 1 ABSTRACT The use of restorative justice for gendered violence has been debated in the feminist literature for some time. Critics warn that it is inappropriate because the process and outcomes are not sufficiently formal or stringent, and victims may be re-victimized. Proponents assert that a restorative justice process may be better for victims than court because it holds offenders accountable and gives victims greater ?voice.? This paper presents what victim advocates in two Australian states think about using restorative justice for gendered violence. We find that while victim advocates have concerns and reservations about restorative justice, most saw positive elements. 2 INTRODUCTION Victims of gendered violence1 have been able and encouraged to seek justice in a limited number of ways, either through civil mechanisms such as restraining orders or through the criminal justice system (see e.g., Estrich, 1986; Mills, 1999). Although these routes of redress may not sufficiently protect individual women or decrease violence against women and children, criminal law reform has been the top priority of feminists for three decades, propelled by what Martin (1998, p. 168) deems an ?irresistible pressure?to make prosecutions easier and punishments more severe.? Feminist efforts to reform law and legal process have resulted in significant transformation at all levels of the justice system?s response to gendered violence, from police practice to the cross-examination of victim- witnesses (see e.g., Esteal, 1998). Still, the mood amongst feminists remains somber because the evidence suggests that from a victim?s perspective, little has changed (e.g., Hengehold, 2000; Presser & Gaarder, 2000; Spohn & Horney, 1992). As Heath and Naffine (1994, p. 32) observe, ?perhaps we had been lulled into believing that legislative reform meant progress.? Despite decades of legal reform, the vast majority of victims of sexual, domestic, and family violence still do not report offences to the police, and prosecution rates for gendered violence are still amongst the lowest for all offences (see e.g., Cook, David, & Grant, 2001; Douglas & Godden, 2002; Holder, 2001); victims have negative experiences in police interviews (Centre Against Sexual Assault, 1997); and when cases do go to trial, victims face long and distressing court processes (New South Wales Department for Women, 1996). Feminists are now ?questioning anew the ability of law by itself? to deliver justice to victims (Frohmann & Mertz, 1995, p. 829) and are looking outside the established criminal justice system for ways forward. 1 We use the term ?gendered violence? as an umbrella concept that captures Liz Kelly?s (1988) idea of a continuum of violence: child sexual abuse, incest, sexual assault, rape, domestic violence, and family violence. While acknowledging that gendered violence does occur in the context of same-sex relationships, and that women can victimize men, our focus is on male violence against adult women and male and female children. 3 In the past decade, restorative justice has been proposed as a promising means of responding to gendered violence (Braithwaite & Daly, 1994; Daly, 2002a; Hudson, 1998, 2002; Morris, 2002a; Morris & Gelsthorpe, 2000). Academic feminists have responded to these calls with skepticism, concern, and cautious interest, and a burgeoning critical literature has grown (see e.g., Strang & Braithwaite, 2002). Compared with the energetic debate occurring in academic circles, we know little about how victim advocates and service providers view the idea of restorative justice. Specifically, what do the people who work with victims every day think about the potential and perils of restorative justice? This article explores the views of Australian victim advocates on restorative justice. We find that in contrast to what many think ? that advocates are against alternatives to criminal justice ? advocates hold more pragmatic views on how to best deliver justice to victims. The advocates interviewed for this study were in fact more receptive to restorative justice than policy makers and academic commentators may think, and even we had initially imagined. Our article begins with a review of the literature on restorative justice and its potential applications for gendered violence. Next, we present the study context and methods. We then turn to these major themes arising from the interviews: advocates? recognition of the limits of the current justice system, yet a desire to rely upon it; their knowledge about and understandings of restorative justice; their perceptions of the benefits and pitfalls of restorative justice for gendered violence; and their views on optimal restorative justice practices for victims. Restorative justice triggers both hope and fear among victim advocates, and these different reactions can be traced, in part, to their varied experiences with and understandings of it. 4 RESTORATIVE JUSTICE AND GENDERED VIOLENCE A significant problem in researching and writing about restorative justice (RJ) is that people have disparate understandings and definitions of it (Crawford & Newburn, 2003, chaps 1 & 2; Daly, 2002b). Moreover, people get stuck in having a too literal interpretation of the words restorative or restoration. Although a major RJ proponent argues that ?restorative justice [is] about restoring victims, restoring offenders, and restoring communities? (Braithwaite, 1999, p. 1), we argue that RJ is better seen as a nominal concept that stands for a set of activities (see below), rather than as literally and narrowly being about ?restoring.? This conceptual shift is important in debating the appropriateness of RJ in gendered violence for as Coker (2002, p. 143) argues ?the concept of restoration suggests that a prior state existed in which [a domestic violence] victim experienced significant liberty and the offender was integrated into the community? when ?neither [may be] true.? Flying under the RJ banner are practices in juvenile justice, criminal justice, family welfare and child protection. They include diversion from the formal court process, actions taken in parallel with court decisions, meetings between offenders and victims at any stage of the criminal process (from arrest, pre-sentencing, and prison release), or meetings held for child protection cases. For criminal matters, in general, RJ typically contains these elements and set of activities: ? Offenders have admitted to the offence (or have chosen not to deny). ? Offenders and their supporters have a face-to-face meeting with a victim (or a victim representative) and a victim?s supporters, although having a face-to-face meeting is not essential. There may be other relevant people present, such as police officers or victim advocates. ? The process is informal, although the person organizing and running a meeting establishes the ground rules for participants (such as people must listen to each other and everyone has a chance to speak). 5 ? Discussion and decisions taken rely on the knowledge and decision-making capacities of lay actors rather than legal actors (although diversionary conferences generally have a police officer present). ? The aims are to reduce victim fear and anger toward the offender, for the victim to ?tell the story? of how the crime affected him or her, for the offender to acknowledge the harm and the negative consequences the crime caused a victim, for the offender to apologize, and for the offender to make up for what s/he did (?repair the harm?) by penalties agreed to. The major kinds of RJ practices include conferences, circles and sentencing circles, and a variety of victim-offender mediation processes (see Kurki, 2000). The history of RJ is contested. Some suggest that it was the ?dominant model of criminal justice throughout most of human history for all the world?s peoples? (Braithwaite, 1999, p. 2), a claim that is ?quickly refuted by any serious look at the literature of legal anthropology? (Bottoms, 2003, p. 88) (see further in Johnstone, 2002). What is not contested is the phenomenal growth and worldwide popularity of the idea in a short span of time. As discussed in Daly and Immarigeon (1998, pp. 23-29), three streams of activism and thought propelled the rise of informal justice in the 1970s and 80s, and RJ in the 1990s: major social movements of the 1960s (e.g., Civil Rights, Women?s Movement, Victim?s Movement, Prisoners? Rights), particular practices and programs (e.g., victim-offender mediation, conferencing, circles), and academic theories and research (e.g., informal justice, reintegrative shaming, feminist theories of justice). The term restorative justice came into widespread use in the mid-1990s, having been applied after the fact to existing programs or legislation. For example, when New Zealand passed its historic legislation in the late 1980s (Children, Young Persons and Their Families Act 1989), which created family group conferences for adolescent offenders, there was no reference to restorative justice in the legislation. Likewise, the first Australian state to legislate diversionary conferences for juvenile cases, South Australia, made no reference to restorative justice in the statute (Young Offenders Act 1993). Legislation establishing conferencing for juvenile offenders 6 has since been passed in all but one Australian jurisdiction (Daly & Hayes, 2001). One noteworthy feature is that with the exception of New Zealand and the Australian states of South Australia and Queensland, conferencing is prohibited in cases of sexual assault, and typically also for domestic or family violence. Conferencing is now being piloted or under consideration for adult offenders in parts of Australia and New Zealand, and here too we find that cases of domestic violence and sexual assault have been placed beyond the reach of conferencing. One reason that gendered violence is off the RJ agenda is that academic feminists and victim advocates have made compelling arguments against it. An early Australian document, which continues to exert significance, is a position paper by the National Committee on Violence Against Women (Astor, 1991; see also Astor, 1994). Astor argued against mediation in cases of domestic violence, and her concerns are enshrined today in the advocacy and academic literature. A critical focus by some feminists on RJ as just another type of mediation (which may mean mediating ?facts? between a victim and victimizer) as compared to what occurs in RJ conferences (where ?facts? are already admitted to by an offender and a larger group of people is present) has created much confusion in the debates on RJ and gendered violence. However, even with RJ conferencing in mind, feminists have raised many concerns (Busch, 2002; Coker, 2002; Goel, 2000; Hooper & Busch, 1996; Lewis et al., 2001; Stubbs, 1995, 2002), these being the most prominent: ? Informal processes risk re-victimizing victims (vis a vis power imbalances between victim and offender) or jeopardizing their safety. ? RJ will appear to be a ?soft option? or what Coker (1999, p. 85) terms ?cheap justice? to offenders and society. Serious offences like gendered violence ought to be treated seriously (that is, adjudicated in criminal court), not diverted from court to an alternative process. ? RJ may re-privatize gendered violence in ways that are harmful to women. 7 ? RJ has theoretical weaknesses, including its assumptions of a distant state and sufficient community opposition to domestic violence, and an under-theorization of the nature of domestic violence. RJ may also require additional state resources to adequately support both victim and offenders. Most of the critical feminist literature has focused on the problems of using RJ to respond to domestic violence. Of all crimes, domestic violence is unusual in that offences are not discrete events, but are typically characterized by an entrenched pattern that cycles from periods of calm to an escalation of violence to reconciliation (see e.g., Laing, 2002). While sexual assault can also occur in the context of domestic violence and as a pattern of abuse, many sexual assaults are discrete events. We consider both domestic violence and sexual assault, as well as other forms of violence such as child sexual abuse, in this article to examine RJ?s appropriateness for the range of cases falling under the umbrella of gendered violence, but it is important to recognize the distinctive problems each poses for victims in the legal process. The major hurdles for victims of sexual assault is the state?s ability to prove their case (see Frohmann [1998] on how prosecutors ?manage? adult sexual assault victims in cases with little evidence) and the impact of the trial process (see Eastwood [2003] on child sexual abuse victims), whereas the pressing concern for victims of domestic violence is to find methods of stopping the violence and securing a victim?s ongoing safety (Holder, 2001). While some victims of gendered violence wish to continue a relationship with an offender, others intend to sever it, and still others never had a relationship with the offender. These differing victim-offender relationships and victim needs must be considered in any legal response to gendered violence; as yet, this diversity of victim contexts and desires has posed major challenges to both feminist legal reformers and the established criminal justice system. Countering the critical literature, a growing number of academic feminists suggest that RJ practices may be more effective for diverse groups of victims compared to established criminal justice and formal legality (Blagg, 2002; Braithwaite & Daly, 1994; Daly, 2002a; Hudson, 1998, 2002, 2003; 8 Koss, 2000; Martin, 1998; Mills 2003; Morris, 2002a, 2002b; Morris & Gelsthorpe, 2000; Pennell & Burford, 2002; Presser & Gaarder, 2000; Snider, 1998). The major arguments for the merits of RJ are these: ? RJ offers a dialogic encounter between victims, offenders, and supporters. This increases the chances of condemning the violence in ways that are meaningful and consequential for offenders and victims, and it permits victims to tell their stories of the violence. ? RJ encourages admissions of offending, rather than denial (this is especially relevant in sexual assault cases where prosecution is especially difficult). ? The process and outcomes of RJ can validate victims? experience, provide assurances that they are not to blame for the violence, and give them greater priority in a legal process. ? RJ may offer more options to diverse groups of victims, some of whom do not want to formally prosecute the offender. ? RJ gives greater attention to lay, rather than legal views of crime, encouraging a more holistic understanding of the offence, rather than one confined to legal relevancies. A major irony in assessing the merits of RJ for gendered violence is a paucity of evidence to confirm or discount the critics? or proponents? claims. Feminists and victim advocacy groups have been successful in blocking the application of RJ for cases of gendered violence in most world jurisdictions. Therefore, there is a dearth of evidence on how RJ might work in practice rather than in theoretically best or worst case scenarios. Hudson (2002, p. 618) pointed to this problem when she wrote: Critics of the extension of restorative justice conferencing to offences such as domestic violence seldom address the question of whether there are standards and safeguards that could make it satisfactory for victims, whilst its proponents often fail to address questions of procedural safeguards or just outcomes for offenders. We agree with the critics that caution should be exercised, and that there is much we need to consider before RJ is introduced as one of several responses to gendered violence. At the same time, the 9 required learning cannot take place so long as principled positions are permitted to prevail in the absence of empirical evidence. Morris (2002b, p. 600) captures the qualities of infinite regress into speculation: There are occasions in this paper when I refer to a criticism which has been made without an empirical basis to support it but when, equally, I am not able to cite rebuttal evidence. All I can do then is to rebut speculation with speculation ? There is some evidence amidst the speculation. Critics of RJ cite studies of mediation of divorce cases, where couples have a history of violence, to show the effects of power imbalances (Astor, 1994; Cobb, 1997). They also cite an early study (Maxwell & Morris, 1993, p. 119), which showed that one-quarter of victims ?felt worse? after a conference, although Strang (2002) later observed that conference victims fared better than those whose cases went to court. From research on Canadian families, Pennell and Burford (2002, p. 108) believe that ?family group conferencing can stop family violence.? Coker (1999, p. 103) finds that Navajo peacemaking offers many benefits to battered women, but at the same time it can create ?real dangers for some women.? McGillivray and Comaskey?s (1999, p. 129) study of Canadian Indigenous women, who endured many years of partner violence, found that women wanted ?stiffer sentences and effective treatment programs.? They viewed ?community-based dispute resolution as partisan and subject to political manipulation? (pp. 143-4). These findings depart from Blagg?s (2002, p. 198) work with Australian Indigenous women, whose ?family violence paradigm? emphasizes interventions ?that stop abuse, cool out situations, open pathways to healing, with minimum intervention by the criminal justice system.?2 Our research on nearly 400 sexual offence youth justice cases that were finalized in court and by conference in South Australia (Daly, Curtis-Fawley, & Bouhours, 2003) finds that conferences outperform court in measures that matter to victims. Conference offenders admitted to their offending, whereas half the 2 Their differing conclusions arise, in part, from the study contexts. Blagg is analyzing family violence (partner violence, child abuse, and other kin violence) in remote Indigenous communities, and McGillivray and Comaskey have partner violence in mind. 10 court cases were dismissed; and for penalties, we find that conference offenders did more for victims (apology and acknowledgment), more for the community (through community service), and more for themselves (involvement in a therapeutic intervention) than offenders whose cases went to court. In reviewing the evidence on RJ and gendered violence, we would emphasize the varied phenomena being considered: is it partner violence by an adult male or a sexual assault by an adolescent male toward a sibling? Is it family violence in remote Indigenous communities or partner violence in urban areas? Is the RJ process specifically tailored to gendered violence, as in Pennell and Burford?s 2002 work, Intimate Abuse Circles (described in Mills 2003), and the program being undertaken by Hopkins, Koss, and Bachar (this volume), or not? These elements are crucial in understanding the nature and contexts of violence, and in making judgments on the appropriateness of an RJ process. We would also emphasise that RJ may warrant a justice response that is more vigorous than simply diversion from court (see Daly 2002), a point that Hudson (2002) has developed and elaborated upon. She argues that RJ ?could carry out the traditional function of criminal justice-- retribution, rehabilitation/reintegration, individual and public protection? (p. 626) in ways that current criminal justice practices have failed to do. THE STUDY: CONTEXT AND METHODS The study presented here is one component of a program of research on RJ and gendered violence, which has these sub-studies: (1) interviews with representatives of victim advocacy groups in South Australia and Queensland to elicit their views on RJ for cases of gendered violence (the study reported here); (2) interviews with Australian Indigenous and non-Indigenous women, working in policy and government in Queensland, to elicit their views on RJ for cases of gendered violence; (3) an archival analysis of nearly 400 sexual offence cases disposed of by court and conference over 6.5 years in South Australia (Daly, Curtis-Fawley, & Bouhours, 2003); and (4) an in-depth analysis of 15 conferences of sexual assault and domestic violence in South Australia, with a focus on what happened 11 at the conference and how victims were affected. The aim of these studies is to examine empirically and sympathetically the many claims and concerns that feminist scholars and victim advocates have lodged toward restorative justice. Unlike almost every other jurisdiction in the world, South Australia has been quietly pioneering the use of restorative justice, in the form of diversionary youth conferencing, for gendered violence (Daly, 2002a). Since the introduction of the Young Offenders Act 1993, over 150 sexual offence cases, with charges ranging from indecent exposure to rape, have been disposed of by family conference.3 In the latter part of 2001, we traveled to South Australia to undertake the first systematic empirical study of restorative justice and gendered violence. We were based in the Adelaide Youth Court for three months, gathering materials for the archival and in-depth analyses. This study reported here arose from Curtis-Fawley?s experience as an advocate in sexual assault and domestic violence service agencies in the United States. She wondered, what do victim advocates think of RJ as a response to gendered violence? With their significant experience, knowledge, and political influence, victim advocates have views that should be listened to and considered (see Strang, 2001 on the crime victim?s movement). At the same time, we recognize that advocates? claims about victims? needs may not be consistent with what crime victims say their needs and desires are (Fraser, 1989). The ?victim perspective? has been used (and, some would say, abused) to provide ammunition for the competing claims that victims want increased punitive sanctions (thus supporting more vigorous criminal law interventions), or that they ultimately want acknowledgement and apology rather than punishment (thereby providing support for alternatives such as RJ) (see Laster & Erez, 2000). While acknowledging that victims have wide ranging interests, experiences, and visions of justice, we believe 3 Conferencing began in South Australia in February 1994, and over time, the annual number of completed conferences for sexual offences has ranged from 12 to 25, with an average of 18 each year. It is difficult to estimate the number of domestic violence cases in the youth justice system because they are part of a larger category of common assault cases. From our in-depth analysis of ?domestic violence? cases (we put the term in quotes because the typical offence is a male or female adolescent assaulting his or her mother), we would estimate that 10 to 15 such cases are disposed each year by conference. Together, these two categories of offenses are a very small share (about 2%) of the annual number of cases disposed of by conference (ranges from 1600 to 1800 per year). 12 that victim advocates? years of experience in the field make them well positioned to speak authoritatively and reflectively about issues affecting victims, including alternative justice practices like RJ. During 2001-02, Curtis-Fawley conducted semi-structured interviews with representatives of 15 victim advocacy organizations in South Australia and Queensland (see Appendix 1). Victim advocacy was defined broadly to include organizations and government departments that advocate for or work on behalf of victims of gendered violence, at the level of policy or direct service. They included state- funded and non-government organizations, with a varied degree of feminist orientation. The organizations worked with or for victims of sexual assault, child sexual abuse, and domestic violence in a range of ways, including providing counseling, legal support, therapeutic interventions, policy work, lobbying, and community education. All but three study participants were female; nine were coordinators or directors of the organization, and the remainder were service providers. Most had considerable years of experience working in the field, on average ten years, although this ranged from one year to 26 years. The sample includes a wide range of organizations and perspectives, but because of its sample size, we cannot make strong generalizations from it. We see it as an exploratory study that can contribute to the literature and expand the range of viewpoints and voices on RJ and gendered violence. The interviews, which lasted, on average, 90 minutes, canvassed these areas: ? Advocates? views on the benefits and shortcomings of the criminal justice system?s handling of gendered violence. ? Advocates? understandings of what RJ is, and what they see as the benefits and concerns of using RJ for gendered violence. ? Advocates? views on the kinds of gendered violence that may be more or less appropriate for RJ or established criminal justice processes. 13 ? Advocates? views on optimal RJ practices, the risks of RJ for victims and offenders, and whether they would recommend that RJ be used for gendered violence. South Australia has been routinely using conferences in youth justice cases of gendered violence since the mid-1990s. By contrast, while Queensland has not proscribed gendered violence from conferencing, it has rarely been used in these cases. Until it was amended in 2003, Queensland?s juvenile justice legislation permitted victims the right to veto their case being referred to conference, which meant that police officers were wary of proposing a conference for serious offences.4 The consequence of these jurisdictional differences is that the South Australian advocates generally had more exposure to RJ than their Queensland counterparts, a difference that affected their views toward RJ. ?WE DON?T CALL IT A JUSTICE SYSTEM ANYMORE:? ADVOCATES? VIEWS ON CRIMINAL JUSTICE To understand the advocates? orientation towards restorative justice, the interview began with a set of questions about how the criminal justice system is and is not working for victims of gendered violence. All of the advocates had had some contact with the criminal justice system through their work, usually by providing information and support to victims. It was not surprising, then, that they spoke about the criminal justice system with a sense of urgency and frustration. The experience of one sexual assault and domestic violence advocate who has been working in the field for more than five years was typical: ?[the criminal justice system] is very tough on them, it is such a painful process. I 4 The Queensland Juvenile Justice Act 1992 was amended in 2002, and proclaimed in July 2003. Among other changes, the amendment abolished the right of victims to veto a referral to a community conference, although police must consider the harm suffered by the victim when deciding how to refer or dispose a case. In South Australia, police officers take the victim?s needs into account when making a decision to refer to court or conference, but victims do not have the right to over-ride the decision nor to direct how the case should be handled. Of course, if victims choose not to attend the conference, they can opt to send a representative or submit written or video statements. 14 have to say I only know of one woman who got a conviction? (QLD4).5 Advocates acknowledged that the standard practices in the criminal justice system put victims in the untenable position of risking further degradation and disappointment with very little chance of a ?successful? outcome, for example, a conviction. When the advocates were asked how the criminal justice system has been successful in responding to the needs of victims, they most commonly pointed to an increased awareness of gendered violence at all levels of the criminal justice system, including that of police and judicial officers. Legal reforms were also thought to make witnesses less vulnerable in the courtroom; for example, advocates mentioned the increased availability of closed circuit television and screens for young victims. Yet despite the successes and statutory changes brought about by feminist legal reform, the advocates recognized that there remained significant deficiencies in the justice system, one saying, for example: I think there is more awareness, but again I think it depends on what police station you call and who is on duty. It depends which magistrate you get. There?s a long way to go in terms of educating the police and the courts about the effects of violence. (SA4) All spontaneously made a negative comment about the justice system?s ability to effectively address gendered violence. These advocates? remarks are indicative: Victims see court as a kind of public humiliation ? there is a view that justice doesn?t happen, and very few cases are actually prosecuted. (SA7) Women are quite aware, usually, that the system will re-traumatize them, and they have to weigh that against whether they are going to go forward or not. (QLD5) When they actually get into the system, they feel that they are on trial ? It is a very embarrassing and humiliating process. I have never been so angry in all my life as watching a defense lawyer effectively attacking and undermining a [victim] on the stand. (QLD4) 5 The participants in this study were assured that their comments would be kept anonymous; therefore we do not identify the speaker of the quoted material. However, in order to show some of the differences between the organizational views in South Australia and Queensland, each quote will be followed by an identification code including the state (SA or QLD) and a random number for each organization. 15 The advocates spoke with exasperation on the shortcomings of the criminal justice system, noting that after decades of legal reform, much work remained to be done. Their concerns mirrored what socio-legal and feminist scholars have been saying for some time: ? victims are systematically re-victimized by their experiences with the system, from reporting the offence to the police through to their experiences in court as witnesses; ? sexual assault and domestic violence are under-reported and face many hurdles when prosecuted; ? if cases do proceed to court, the focus shifts to the victim?s credibility and behavior; ? because the system is adversarial, there is little scope for addressing violence between intimates or family members who wish to remain in a relationship, which is one reason that domestic violence victims may opt out of the system; and ? the system is incapable of dealing with child victims. These comments illustrate advocates? views on the inadequacies of the criminal justice system: I get called out and see these women who have been recently raped, and I think to myself, if I were in their position, knowing what I know, I wouldn't take it to court, I wouldn't pursue it. (SA3) The way the system is structured so women are not believed ? The onus is upon them to prove that an assault took place ? That's degrading and humiliating. So the act [of violence] is, and the court process further perpetuates that. (SA7) If a victim is three years old, she?s not going to be able to give evidence. She won?t be able to answer the questions, she won?t understand the concept of cross-examination, so it?s a useless exercise. People don?t understand that about half the children we see a year make quite clear allegations, but none of these cases make it to trial because it is a problem of evidence ? It puts incredible amounts of stress on the families, and creates a lot of problems for the child too. (SA2) The advocates? comments point to three major failures in the current criminal justice system. First, criminal proceedings rarely, if ever, validate a victim?s understanding of her experiences and rarely acknowledge that she is not to blame for the violence (Estrich, 1986). Second, the criminal court is unlikely to be an effective forum for addressing violence between intimates who will be in continuing relationships (Morris & Young, 2000). Finally, legal reform has thus far been unable to 16 create processes that are tailored to child victims? needs and capacities (Eastwood, 2003). As will be explored further in this paper, it is in precisely these areas that RJ has potential. The interviews bring to light a contradiction between continued efforts to reform the law and criminal justice system, and the recognition that such efforts will likely produce limited results. This contradiction reflects a paradox for feminist engagement with criminal law. Estrich (1986, pp. 1092- 93) put it well when she wrote, ?the law has reflected, legitimised, and enforced a view of sex and women which celebrates male aggressiveness,? and yet the over riding goal of many feminists is to ?write the perfect statute.? Despite the widespread view that the criminal justice system routinely harms victims in significant ways, most advocates in our study believed the justice system remained the best site for dealing with gendered violence. Typical of this position are the views of one advocate, who after describing the justice system as ?degrading and humiliating,? went on to say, ?we have not necessarily exhausted what is possible within the criminal justice system? (SA7). This persistent investment in legal reform puts advocates in the untenable position of continuing to defend and support a system they know fails most victims. ?IT?S ABOUT TRYING TO RESTORE SOME CONNECTION:? UNDERSTANDINGS OF RJ The lack of clarity about what does and does not constitute restorative justice has clouded the debate on its appropriateness for gendered violence. This confusion was evident in the interviews. Many victim advocates had difficulty answering the question, ?What does restorative justice mean to you?? Generally, advocates? descriptions of RJ focused on a victim-centered process that emphasizes healing over punishment. They also perceived RJ as an alternative to the current criminal justice system, which may allow for more flexible or creative outcomes. Statements from two advocates show how RJ is understood: 17 Because it is in its infancy, restorative justice is better understood as a challenge to the way we do things. In other words, it is another way of thinking about the administration of justice. (SA1) To me it means some kind of model that looks to put the victim back in the position that they were in before an offence was committed against them ?to give them an outcome that is more victim- driven, that the victim wants. (SA5) The advocates also focused on RJ?s potential to repair the relationship between the victim and the offender, which was perceived as a benefit by some, but also seen as major drawback by others, as exemplified by this advocate: Anything that gives the perpetrator access to a victim is doing the victim a disservice, is leaving her more vulnerable ? It is setting up the potential [for] reconciliation, and therefore more violence. (QLD6) Nine of the 15 advocates referred specifically to conferences as a form of restorative justice, and in fact, some believed it to be the only form. Many Queensland advocates linked RJ to a much- criticized state practice of mandatory referral to ?primary dispute resolution? (mediation) before the granting of Legal Aid, including cases that involve domestic violence. Of the 15 advocates, five believed that RJ is mediation dressed up in politically correct language. Some were concerned that governments? interest in RJ was driven by a need to reduce the costs of administering justice, not to provide better outcomes for crime victims. Several expressed positive understandings of RJ, but felt that its scope should be restricted to adolescent offending. One advocate warned that gendered violence was simply beyond RJ?s reach, saying, ?This isn?t about kids who shoplift? (SA7). Another advocate who was strongly opposed to RJ for gendered violence said: I guess I don?t have a problem with restorative justice itself. My real concern is that any chance that the system gets to water down crimes against women and children, they?ll take it, and restorative justice would be a prime example of that. (QLD5) Those expressing the greatest opposition to RJ throughout the interview were also those who were the most unsure of what it is. One said, for example, ?I am not sure I like it. I am not sure what it means? (QLD5). Very few said they had read the research literature on RJ; rather, they received information about it from television or radio reports, or through email networks. Several made statements like ?I don?t think my thinking [on RJ] is particularly sophisticated or advanced? (SA5), or 18 ?it?s a bit hazy to me really? (QLD7). These comments suggest the need for greater public education about RJ, drawing on both the theoretical and empirical literatures. ?RESTORATIVE JUSTICE CREATES OPPORTUNITIES:? PERCEIVED BENEFITS OF RJ The critical literature warns of the many ways that victims may be hurt by RJ. For example, existing power imbalances may be exacerbated, victim-offender meetings could lead to re- victimization, and RJ processes may be too informal and outcomes too lenient for the serious offending that constitutes gendered violence (Busch, 2002; Stubbs, 2002). In light of these concerns, an important and somewhat surprising finding from our study is that most advocates believed that RJ has something positive to offer victims of gendered violence, especially when compared with established criminal justice processes and outcomes. Of the 15 advocates, five were generally positive toward RJ; seven were cautiously positive, having many reservations, but also seeing potential benefits; and three were generally negative toward RJ, seeing the negative consequences to outweigh any benefits. All but two felt that RJ had something positive to offer victims of gendered violence. Those who had worked in the field the longest were more likely to hold positive views of RJ: they appeared more disillusioned with the established system, less optimistic that it could be sufficiently reformed, and were more receptive to expanding the range of options for victims. The advocates? orientations toward RJ were affected by their exposure to RJ practices. Most of the South Australian participants (five of eight) had had first-hand exposure to RJ, typically as a support person for a victim before or during a conference. This exposure seemed to reassure them that RJ had potential for victims. By comparison, just one of the Queensland participants had had direct exposure to RJ. During the interviews, the South Australian participants often drew on their experiences with RJ practices to talk about the real benefits and concerns for victims. One advocate 19 described a conference she had attended for a sexual assault case, saying, ?if a conference is done properly, it is a way more powerful tool [than going to court]? (SA3). The Queensland advocates spoke from a position of principle rather than experience, as indicated by an advocate who said, ?I think it would be an absolute nightmare, I can?t even begin to think of what it would look like for it to work? (QLD5). RJ as an Alternative to Criminal Justice Almost all the advocates cited some beneficial elements of RJ processes for gendered violence. One of the most frequently mentioned benefits was that RJ provided a clear alternative to the criminal justice system. As one advocate stated: The main benefit I see is that it provides an alternative to the existing system ? The existing system, which is an adversarial system, isn?t working for victims of intimate violence. (SA5) The advocates? conceptualization of RJ as an activity distinct from the justice system is not surprising given their deeply felt frustrations with established justice responses to gendered violence. One advocate whose core work is to support victims going through the criminal process said this about RJ?s benefits: Not having to go through the criminal justice system is a huge benefit. It?s so demoralizing and judging, and it sets up this win-lose situation ... With the criminal justice system, there isn?t anything around rehabilitation, any focus on repairing the situation. There is such loss in the criminal justice system. (SA8) Not all of the advocates, however, felt that RJ should be viewed as an alternative to existing criminal justice. Several believed that RJ may be most effective as a parallel process to established criminal proceedings, thereby retaining the sanctioning clout of a court process and providing a forum for victims to express themselves and to be heard. One advocate said, ?I would still be an advocate for conferencing to be used in the context of sentencing processes, I think, not necessarily as an alternative 20 to going to court? (SA5), and another stated, ?In cases of intimate violence, [RJ] should exist not as an alternative, but as ? a service or a process available, either now or any time in the future, in the course of [the victim?s] own healing? (SA4). The relative informality of RJ was also seen to be beneficial for victims, and in particular those who wished to maintain relationships with an offender or for young victims. One advocate reflected on this positive aspect of RJ: One of the advantages of restorative justice [is that] it is a different way to think about things, and therefore an opportunity for more innovative responses ? That might appeal to victims who report or disclose their victimization for the purpose of trying to stop it, but they don?t want to see their partner or their family member being dragged into a court process. What they want is for that person to be dealt with in a fashion that stops the violence and allows the relationship to continue ? So therefore we stretch the range of alternatives that are offered to victims of crime. (SA1) The Victim?s Voice The importance of the victim?s voice and the opportunity to speak about her experience was a recurrent theme in the interviews. Advocates see the potential for RJ processes to give victims a chance to speak and to be heard in a way that the criminal court does not allow. RJ may also empower victims to participate in decision-making and to propose desired outcomes. The healing opportunity to ?confront? the offender was seen as a benefit by this advocate: We encourage people as a way of voicing it, having it said in public, a public acknowledgement that this happened, whether or not the perpetrator is found guilty or not guilty, that the perpetrator has been confronted with what they have done. And that can actually be quite therapeutic and healing for the victim. (SA3) Several advocates spoke of how RJ may be able to address power imbalances between victims and offenders, in clear opposition to the widely held feminist critique that RJ processes will exacerbate power imbalance. Two advocates said this about how RJ could contend with power: It could give women a voice in the process. It could give them a forum where the power imbalance is addressed so they can actually participate. (QLD7) Restorative justice models rely on the notion of power and the recognition that there is some way of trying to rebalance power relationships between two parties. (SA1) 21 That advocates perceive RJ as being capable of addressing power differentials constructively was a surprising finding of this study. One of the most commonly cited concerns about RJ is that power imbalances will prevent victims from being effective participants in the process (Busch, 2002). But by creating forums that privilege the victim?s voice and account of her experiences, the distribution of power between victim and offender can be rebalanced. As noted by Presser and Gaarder (2000, p. 178), ?victims who have a say in the legal proceedings may feel more empowered to get help, if not to terminate the abusive relationship.? While imbalances of power between victim and offender, and men and women, are not small matters, they need not be viewed as inherent impediments to RJ. RJ Allows Offenders to Acknowledge Responsibility In addition to the benefits that may accrue to victims, the advocates also believed that RJ could better serve offenders by lowering the stakes for acknowledging their violent behavior. Admitting guilt for an offence is a keystone of most RJ programs, and this insistence that offenders take responsibility for their behavior is an attractive feature for advocates. Victims of gendered violence often bear a deep sense of guilt and self-blame, and criminal processes can reinforce this by questioning their behavior and relationship choices (Frohmann, 1998). Furthermore, the established criminal justice system offers perpetrators little incentive for full admissions of guilt, and in fact ?defendants (or their lawyers) are making an accurate assessment of the (good) chances of acquittal? by maintaining a stance of denial (Heath & Naffine, 1994). Because RJ processes are set in motion only after an offender admits to an offence, advocates perceived greater opportunity for the healing of victims and therapeutic interventions for offenders. The following comments reflect this potential benefit of RJ: Anything that establishes the guilt of somebody in a formal, relatively public sense probably has a significant effect on how the family of the victim can manage that. (SA2) Any healing of any relationship comes from a process of restorative justice, whatever it?s called, that is, the process of someone who has been hurt being heard. That is where healing comes from, they need to be heard and they need the other person to take responsibility for what they did. (SA4) 22 Advocates know that victims of gendered violence must contend with systematic disbelief throughout the justice system. Restorative justice has the potential to recognize victims? desire for ?clear and public acknowledgement? (Martin, 1998, p. 184) by lowering the penalty stakes for offenders to take responsibility for their actions. We must be cognizant, however, that many violent men may be incapable of ?hearing and taking seriously victims? account of the impact of their offending? (Stubbs, 1997, p. 121). ?WE WOULD BE MOVING SO FAR BACKWARDS:? CONCERNS ABOUT RJ Although most advocates saw positive elements in RJ, they also expressed concerns and reservations, at times quite vigorously. For example, when one advocate was contacted to arrange an interview time, she said, ?I don?t know why you are bothering, I can tell you right now that I am completely opposed to restorative justice.? Recapitulating what we see in the academic literature, their major concerns were that RJ processes may cause victims to be re-victimized, power imbalances will be exacerbated, victims will feel pressure to choose RJ over other criminal proceedings, RJ may appear to be a ?soft option? or ?cheap justice? for victims, and RJ can re-privatize gendered violence. Re-Victimization and Imbalances of Power Eight of the 15 advocates believed that victims could be re-victimized by RJ practices, particularly if it involved a face-to-face meeting with the offender. A related concern was that power imbalances between the victim and offender would be difficult to address and manage in an informal process, as captured in this statement: It is potentially forcing a woman to be in less formal conversations with an alleged perpetrator, which I think could be more abusive than the formality of a court situation with the barriers and stuff that we?ve got there. (SA7) 23 Busch (2002), drawing from Astor (1994), provides a lucid discussion of how power imbalances may impede RJ conferences for cases of domestic violence. Facilitators may be unable or lack the skill and insight to challenge ?an abuser?s belief systems? (p. 237), an abuser may threaten the victim or others at the conference, and balancing power or equality in the conference setting may be an impossible goal in light of a history of violence. It is often remarked, moreover, that abusers can intimidate and control victims through gestures or words that may be invisible to everyone in the room except for the victim. Hence, many feminists and victim advocates (both RJ proponents and critics) would say that the informality of restorative justice processes can risk exposing victims to further violence or intimidation, compromising the integrity of the conference. We would counter this concern by noting that court processes also create risks for victims and that abusers? intimidation tactics can be carried out in both court rooms and conference settings. Further, there are ways around this problem for RJ processes; victim presence could be optional, a victim could opt to present a pre-recorded statement or to send a representative to the conference, or the victim and offender could be in separate rooms with a speaker phone system. Further, we agree with the advocates who insisted that conference coordinators be required to undergo training on the dynamics of gendered violence. If a coordinator suspected or observed signs of intimidation, threat, or abusive language, the conference could be immediately stopped or referred to court. The Cheap Justice Problem Stubbs (2002, p. 51) and other feminist scholars have suggested that ?restorative justice may be seen to be offering a form of second class justice?, and six of the 15 advocates specifically used the term ?soft option? to describe RJ. The perception of RJ as an easy option worried advocates, as reflected in these comments: My concern about shifting into a restorative justice model, I hate to use this term, but it is a soft option. My concern is that there will at least be a perception, and that might be quite an influential 24 perception, that the criminal justice system is saying somehow that [gendered violence] is different and less serious. (SA5) I think it?s a pretty cruisy way out for an offender. He?s not really paying too much of a price, he might suffer some shame and embarrassment, have to apologize in front of some people, but I think the offender is getting off reasonably lightly. (QLD3) Even the advocates who themselves believed that RJ could be a powerful intervention for gendered violence expressed the fear that RJ will appear to the public to be a too lenient response. One advocate who has worked to promote the benefits of RJ in the victim advocacy community acknowledged this dilemma: Because there is a perception, I think a widely held community perception that a family conference is a slap on the wrist ? If rape and sexual assault and domestic violence were to go to that, then maybe the community wouldn?t see them as significant, important crimes that really need to be prosecuted, you know, high crimes. They might be devalued, or the experience of those crimes might be devalued. (SA3) Kelly and Radford (1996, p. 31) have warned that diversion programs for abusive men send a powerful message that gendered violence ?is less deserving of legal sanction than other offences? and that we must guard against practices which allow for the ?privileging of men who abuse women and children.? Martin (1998, p. 155), on the other hand, argues that feminists must look beyond punitive justice as the sole mechanism for taking gendered violence seriously because criminal justice ?does little to serve the goals of equality and security?. Hudson (1998, p. 245) accurately describes this impasse when she writes: The dilemma ? is that of moving away from punitive reactions, which ? even when enforced ? further brutalize perpetrators, without, by leniency of reaction, giving the impression that sexualized ? violence is acceptable behavior. Linked with the advocates? concern that RJ could subject victims of gendered violence to ?cheap justice? is that RJ will re-privatize gendered violence after decades of work to raise social awareness and to make legal authorities and the broader community take violence against women and children seriously: 25 I think part of it is a backlash against feminism, and the increase in patriarchy in our society. The white picket fence, get back behind there with the kids, it is all part of those false family ideals. (QLD6) The fear that RJ will undo decades of work to raise consciousness about gendered violence is shared by feminist critics. As P. Martin (1996, p. 59) warns, we must ensure that RJ processes ?do not result in the decriminalisation of family violence and a return to the viewing of family violence as a private matter or ?just a domestic.?? At the same time, we may need to balance the goal of social awareness with the desires of victims themselves. A 1993 Australian Bureau of Statistics survey found that one of the most common reasons for victims not reporting sexual assault was that they felt it was a private matter (see Doyle & Barbato, 1999, p. 51). For these victims, perhaps RJ could offer a mechanism for confronting offenders without exposing themselves and their victimization to the shame of public scrutiny. RJ May Harm Offenders Strikingly, some advocates also expressed concerns about how offenders might be negatively affected by RJ processes. Two who had worked with victims for many years suggested that some victims may use RJ processes to inflict harm on offenders, as one said: Some victims are committed to remaining victims and derive a lot of their self-definition, meaning for life out of being victims, and using that as punishment. ?I have been hurt and therefore I am entitled to hurt? ? The restorative justice process is also an opportunity for someone to become an offender themselves, a victim to become an offender, to become abusive and punishing. (SA4) This statement reminds us that neither criminal justice nor RJ processes should assume ?that victims are the virtuous ?us? and the offenders the culpable ?other?? (Strang, 2001, p. 75; see also Mills, 2003). Hudson (2003, p. 187) takes this point further by suggesting that ?the (liberal) requirement that rights and interests be kept in balance is glossed over in some RJ formulations.? She points out that: [RJ] assumes a procedural model of equality between the parties in some respects?representatives of both parties, ensuring that no one dominates proceedings?but other rules deny this equality. ? [For example] ? in some schemes, offenders are not able to include as supporters people who might approve or excuse their behaviour. 26 Hudson is referring specifically to what should and should not be considered permissible in conferences dealing with gendered violence. Although she does not ?want to promote racist, sexist or otherwise anti-social behaviour,? she argues that RJ ?should abandon [its claim to] even-handedness? by ?defin[ing] itself more clearly as victim-centred reparative justice? (p. 187). ?SOME SORT OF ACCOUNTABILITY:? WAYS FORWARD Throughout the interviews, many of the advocates reflected on ?what victims really want? when engaging a legal process. While about half said that some victims want to see the offender punished, a similar number said that victims are motivated by a more abstract sense of justice and the desire for accountability on behalf of the offender. The advocates had this to say about what victims most want: Well, women are seeking justice. They are looking for some sort of accountability and particularly want the offenders to stop offending. They are fearful that they are offending against others, and I?d say that would be more a priority for them even than their own sense of justice. Often, though, they do want to be at least acknowledged and for there to be some consequences. (QLD 4) I think there is a sense of justice that people have ? And because it is a violation, victims do have the desire that justice occurs and that the violation is to some small degree redressed. (SA7) That sense of acknowledgement fails in our current criminal justice system, the acknowledgement that yes, this has occurred?and [the offender] needs to take responsibility. (SA8) RJ holds significant promise in addressing the desires of victims to be heard, to have their suffering publicly acknowledged, and to hold perpetrators accountable for their behavior. We are mindful, however, of the limits to this potential. For example, Smart (1989, p. 164) warns that when feminists reform or make new law and policy, it is often administered by people ?far removed from the values and politics of the women?s movement.? Many of the advocates expressed the concern that RJ practices may fail to live up to RJ?s promise of extending benefits to victims, communities, and offenders. 27 Victim Agency and RJ Most victim advocates (nine of 15) said that victims should be given the power to decide if their case is disposed of by an RJ process, or referred to the criminal justice system. In addition, two-thirds felt that a feminist or victim advocacy organization should be involved in the process of screening cases for referral to a restorative or established justice process. The belief that RJ processes should give this particular set of victims decision-making authority poses a significant challenge to RJ. What degree of control should victims of gendered violence have, and for what kinds of decisions? A victim?s power is considerable if she is permitted to veto a referral to an RJ process because the veto has significant consequences for offenders. On the other hand, victims of intra-familial or partner violence may be pressured (by their partners or other family members) to choose RJ over criminal proceedings in order to avoid punitive outcomes. One advocate said: I suppose I would be concerned in some instances that women would feel too compassionate, you know, ?I don?t want to send him to jail.? (QLD7) Further, several advocates acknowledged that victims of gendered violence report their victimization precisely because they want the state to intervene on their behalf (see also Shapland?s [2000] discussion of the responsibilities that justice processes should and should not place on victims). Giving victims decision-making authority over how and when their case should be disposed is a responsibility that many simply do not want, as this advocate said: I don?t know to what extent we should be empowering victims to make decisions. I think that?s an incredible responsibility and one that not all victims want. (SA1) Clearly, many of the advocates felt strongly that victims of gendered violence must be given the opportunity to provide input and direction if an RJ process is used. This is understandable in that victim advocates do not want to see victims used or harmed by a legal process, and more positively, they would like to see victims ?empowered? by it. However, as Ashworth (2000, p. 196) argues, there must be a principled basis for balancing between ?personal interests of victims and the broader public interest? in an RJ process. Simply invoking ?the language of balance is a mere fudge,? Ashworth says, 28 and ignores the identification of ?reasonably clear and principled weighting of interests that come into play? (p. 196). Among many questions that arise in this complex area is the role of victims in sentencing. Ashworth argues, and we agree, that ?it would be unfair if sentences on offenders varied according to whether a particular victim is forgiving or vengeful? (p. 199) (see also Ashworth, 2002, pp. 584-88), and the same could be said for a victim?s role in decisions to divert a case from court prosecution. When is RJ Appropriate? It is important to reiterate that debates concerning RJ and gendered violence are complex because ?gendered violence? includes a wide range of violent acts and different mixes of ages and victim-offender relations, including child sexual abuse, incest, sexual assault, rape, domestic violence, and family violence (Kelly, 1988). Some of these offences and some of the victim-offender relations may be better suited to RJ processes than others. Advocates were more positive towards RJ for offences involving adolescent offenders and young victims. This is not surprising given RJ?s genesis for adolescent offending, coupled with the view that youthful offenders are more amenable and deserving of rehabilitation. Several advocates felt that intra-familial sexual violence and child sexual abuse, rather than sexual or physical violence occurring between adults, may be better suited to RJ interventions than established criminal justice. One advocate said, for example: It seems like a lot of sexual perpetrators start young, so if they can be picked up at that stage and helped to understand the consequences of their actions and on the victim, to people, it will help them stop. (QLD4) Advocates pointed out that cases with very young victims were unlikely to be prosecuted successfully, and that parents (or other family members) were often loath to report abuse because it would mean that their son (or other family member) would be charged with a criminal offence. For these types of cases, RJ was seen as a viable option that could help families respond to intra-familial sexual abuse in ways 29 that addressed traumas experienced by victims and families, as well as offenders? needs for intervention and rehabilitation. Advocates viewed RJ processes for violence between adults, and especially domestic violence, with more trepidation. Overall, they expressed their gravest reservations toward RJ for domestic violence, as compared to other forms of gendered violence. Again and again, advocates pointed out that domestic violence is a deeply entrenched pattern, and RJ is unlikely to be sufficient to change such ingrained behavior. At the same time, some felt that RJ could be a way to confront emotional and verbal abuse, which is difficult to prove in a criminal context. In addition, it was frequently noted that victims of domestic violence may not want their case to go to court, either out of fear of reprisal or because they intend to remain in the relationship. For these cases, advocates felt that RJ could provide an important legal response without the attendant costs (in victims? minds) associated with established criminal processes. Beyond Either/Or The advocates interviewed for this study did not see RJ merely in theoretical terms. Throughout the interviews they offered a variety of ideas about how RJ could work in concrete, operational ways. The most recognized face of RJ in Australia and New Zealand is youth justice conferencing, but the advocates recognized that RJ is a flexible concept that can take other forms and occur at other sites within the justice system. For example, it was suggested that RJ could be integrated into the existing criminal justice system, by providing mechanisms for pre-sentencing advice to judicial officials, post-sentencing ?victim impact? meetings, or pre-release conferences. These forums would give victims the benefits of RJ, including the opportunity for a victim to voice her story, to have the harm publicly acknowledged, and to hold the offender accountable for the offence, while also allowing for concurrent criminal justice processes. As pointed out by Daly (2002a), a clear view of restorative justice is impeded by the impulse of its critics ? and some supporters ? to hold it in opposition to 30 retributive justice. The advocates in this study understand Mills? (2003, p. 27) warning that ?one glove does not fit all hands? when it comes to justice policy for gendered violence. Criminal and restorative justice need not be pitted against each other as mutually exclusive ways of doing justice. Perhaps one way forward is for feminists to identify the potential and limits of each form of justice to create policy and practice that is responsive to the needs identified by victims and advocates. CONCLUSION The victim advocates interviewed for this study recognized that the current criminal justice system ?encourage[s] women to report rape and to participate in rape prosecutions that are in fact damaging to them personally? (Heath & Naffine, 1994, p. 51). Perhaps it was this disillusionment with the justice system that facilitated the advocates? openness to RJ. At the same time, the advocates clearly did not want to relinquish their reliance on criminal law, even while recognizing its patriarchal basis and systematic inadequacies. For example, early in the interview, one advocate said, ?The criminal justice system is based on patriarchy ? It is a system that fails from the beginning? It is a system that doesn?t believe women and children from the outset.? Yet, this same advocate concluded the interview by saying, ?First and foremost, sexual assault is a crime, and it needs to be dealt with in that way before any kind of restorative justice? (QLD5). As long as advocates and other feminist critics view RJ in opposition to established criminal justice, it will be perceived as a ?soft option? that is incapable of dealing with serious crimes like gendered violence. The task ahead is to create a dialogue that moves beyond this dualistic debate and seeks to imagine how the future of RJ may be shaped by feminist engagement (see also Frederick and Lizdas, 2003). In their analysis of different feminist orientations to law and violence and against women, Lewis et al. (2001, pp. 116-17) suggest the futility of taking an either/or approach. They propose that we should not choose between civil or criminal law, but rather find elements in both systems that may be useful. Nor must we choose between being a member of the feminist engagement with law camp 31 (reformists) or the critique of law?s futility camp (abstentionists). Their call to avoid ?dualistic thinking? (p. 117) comes to a halt, however, when they consider the appropriateness of RJ for domestic violence: Community conferences are absolutely inappropriate for domestic violence offences [although they] may be a positive development for some offences, for example, juvenile offences ? (p. 118). Just as some of the advocates interviewed in this study viewed RJ as a practice distinct from criminal justice, Lewis et al. understand RJ conferences as ?working outside the confines of the current legal system? (p. 118). This assessment is inaccurate for Australia and New Zealand, where conferences are an integrated component of the criminal justice system. By incorporating RJ processes into the criminal justice framework, we will increase opportunities for violent men to acknowledge responsibility for their behavior in a forum that is both legally and emotionally significant. This acknowledgement is the first step for offenders to change and for victims to recover from the offence and to rebuild their lives. It is an exciting call to action for RJ critics and supporters that most victim advocates we interviewed in South Australia and Queensland did not engage in dualistic thinking. They saw the importance of engaging with established criminal justice, while at the same time, they were open to alternatives and parallel processes that may better serve diverse groups of victims. Few advocates were willing to rule out RJ as an option for gendered violence, although most were hesitant to support its application for adult partner violence. Our study challenges the impulse of some to caricature feminists and victim advocates as supportive of strictly punitive approaches to gendered violence. The debate must move beyond either/or analyses that unequivocally promote or denigrate RJ approaches to gendered violence. We require a more flexible, pragmatic approach, which permits consideration of when RJ may (or may not) be appropriate, for which kinds of offences and victim-offender relations, and when it should be used as diversion from court or as a parallel court process. We cannot afford to put anything off the agenda. 32 REFERENCES Ashworth, A. (2000). Victims? rights, defendants? rights, and criminal procedure. In A. Crawford & J. Goodey (Eds.), Integrating a victim perspective within criminal justice: International debates (pp. 185-204). Aldershot: Ashgate/Dartmouth. Ashworth, A. (2002). Responsibilities, rights and restorative justice. British Journal of Criminology, 42, 578-595. Astor, H. (1991). Mediation and violence against women. Paper prepared for the National Committee on Violence Against Women. Report available from Violence against Women and Legal Matters Section of the Office of the Status of Women, Department of the Prime Minister and Cabinet, 3-5 National Circuit, Barton, ACT. Astor, H. (1994). Swimming against the tide: Keeping violent men out of mediation. In J. Stubbs (Ed.), Women, male violence, and the law (pp. 147-173). Sydney: The Institute of Criminology Monograph Series. Blagg, H. (2002). Restorative justice and aboriginal family: Opening a space for healing. In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 191-205). Cambridge: Cambridge University Press. Bottoms, A. (2003). Some sociological reflections on restorative justice. In A. von Hirsch, J. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? (pp. 79-114). Oxford: Hart Publishing. Braithwaite, J. (1999). Restorative justice: assessing optimistic and pessimistic accounts. In M. Tonry (Ed.), Crime and justice: A review of research, Vol. 25 (pp. 1-127). Chicago: University of Chicago Press. Braithwaite, J., & Daly, K. (1994). Masculinities, violence and communitarian control. In T. Newburn & E. A. Stanko (Eds.), Just boys doing business? Men, masculinities, and crime (pp. 189-213). London: Routledge. 33 Busch, R. (2002). Domestic violence and restorative justice initiatives: Who pays if we get it wrong? In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 223-248). Cambridge: Cambridge University Press. Centre Against Sexual Assault (1997). Just tokens? A report on the experience of victim/survivors of sexual assault when making application for crimes compensation. Carlton, Vic: Centre Against Sexual Violence, Royal Women?s Hospital. Cobb, S. (1997). The domestication of violence in mediation. Law & Society Review, 31, 397-440. Coker, D. (1999). Enhancing autonomy for battered women: Lessons from Navajo peacemaking. UCLA Law Review, 47, 1-111. Coker, D. (2002). Transformative justice: Anti-subordination processes in cases of domestic violence. In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 128-152). Cambridge: Cambridge University Press. Cook, B., David, F., & Grant, A. (2001). Sexual violence in Australia. Canberra, ACT: Australian Institute of Criminology Research and Public Policy Series. Crawford, A., & Newburn, T. (2003). Youth offending and restorative justice: Implementing reform in youth justice. Devon, England: Willan Publishing. Daly, K. (2002a). Sexual assault and restorative justice. In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 62-88). Cambridge: Cambridge University Press. Daly, K. (2002b). Restorative justice: The real story. Punishment & Society, 4, pp. 55-79. Daly, K., Curtis-Fawley, S., & Bouhours, B. (2003). Sexual offence cases finalised in court, by conference, and by formal caution in South Australia for young offenders, 1995-2001: Final report, August 2003. Brisbane: School of Criminology and Criminal Justice, Griffith University. Available at http://www.gu.edu.au/school/ccj/kdaly.html Daly, K., & Hayes, H. (2001). Restorative justice and conferencing in Australia. Trends and Issues in Crime and Criminal Justice, 186. Canberra: Australian Institute of Criminology. 34 Daly, K., & Immarigeon, R. (1998). The past, present, and future of restorative justice: Some critical reflections. The Contemporary Justice Review, 1, 21-45. Douglas, H., & Godden, L. (2002). The decriminalisation of domestic violence. Brisbane: Griffith University, The Socio-Legal Research Centre. Doyle, S., & Barbato, C. (1999). Justice delayed is justice denied: The experiences of women in court as victims of sexual assault. In J. Breckenridge & L. Laing (Eds.), Challenging silence: Innovative responses to sexual and domestic violence (pp. 47-58). St. Leonards: Allen & Unwin. Eastwood, C. (2003). The experiences of child complainants of sexual abuse in the criminal justice system. Trends and Issues in Crime and Criminal Justice, 250. Canberra: Australian Institute of Criminology. Esteal, P. (1998). Balancing the scales: Rape, law reform and Australian culture. Leichhardt, NSW: The Federation Press. Estrich, S. (1986). Rape. The Yale Law Journal, 95, 1087-1184. Fraser, N. (1989). Unruly practices: Power, discourse, and gender in contemporary social theory. Minneapolis: University of Minnesota Press. Frederick, L., & Lizdas, K. (2003). The role of restorative justice in the battered women?s movement. Battered Women?s Justice Project. Frohmann, L. (1998). Constituting power in sexual assault cases: Prosecutorial strategies for victim management. Social Problems, 45, 393-408. Frohmann, L., & Mertz, E. (1995). Legal reform and social construction: Violence, gender, and the law. Law and Social Inquiry, 20, 829-851. Goel, R. (2000). No women at the center: The use of Canadian sentencing circles in domestic violence cases. Wisconsin Women?s Law Journal, 15, 293-334. 35 Heath, M., & Naffine, N. (1994). Men?s needs and women?s desires: Feminist dilemmas about rape law ?reform.? The Australian Feminist Law Journal, 3, 30-52. Hengehold, L. (2000). Remapping the event: Institutional discourses and the trauma of rape. Signs, 26, 189-214. Holder, R. (2001). Domestic and family violence: criminal justice interventions. Australian Domestic & Family Violence Clearinghouse Issues Paper 3. Sydney: University of New South Wales. Hooper, S., & Busch, R. (1996). Domestic violence and the restorative justice initiatives: The risks of a new panacea. Waikato Law Review, 4, 101-30. Hopkins, C. Q., Koss, M., & Bachar, K. (2004). Restorative justice and sex offences: A challenge for feminist theory. Violence Against Women, this volume. Hudson, B. (1998). Restorative justice: The challenge of sexual and racial violence. Law and Society, 25, 237-256. Hudson, B. (2002). Restorative justice and gendered violence: Diversion or effective justice? British Journal of Criminology, 42, 616-634. Hudson, B. (2003). Victims and offenders. In A. von Hirsch, J. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? (pp. 177-194). Oxford: Hart Publishing Johnstone, G. (2002). Restorative justice: Ideas, values, debates. Devon, England: Willan Publishing. Kelly, L. (1988). Surviving sexual violence. Minneapolis: University of Minnesota Press. Kelly, L., & Radford, J. (1996). ?Nothing really happened?: The invalidation of women?s experiences of sexual violence. In M. Hester, L. Kelly, & J. Radford (Eds.), Women, violence, and male power (pp. 19-33). Buckingham: Open University Press. Koss, M. (2000). Blame, shame, and community: Justice responses to violence against women. American Psychologist, 55, 1332-1343. 36 Kurki, L. (2000). Restorative and community justice in the United States. In M. Tonry (Ed.), Crime and justice: A review of research, Vol. 27 (pp. 235-303). Chicago: University of Chicago. Laing, L. (2002). Responding to men who perpetrate domestic violence: Controversies, interventions, and challenges. Australian Domestic & Family Violence Clearinghouse Issues Paper 7. Sydney: University of New South Wales. Laster, K., & Erez, E. (2000). The Oprah dilemma: The use and abuse of victims. In D. Chappell & P. Wilson (Eds.), Crime and criminal justice in Australia: 2000 and beyond (pp. 240-258). Sydney: Butterworths. Lewis, R., Dobash, R., Dobash, R., & Cavanagh, K. (2001). Law?s progressive potential: The value of engagement with the law for domestic violence. Social and Legal Studies, 10, 105-130. Martin, D.L. (1998). Retribution revisited: A reconsideration of feminist criminal law reform strategies. Osgoode Hall Law Journal, 36, 151-188. Martin, P. (1996). Restorative justice: A family violence perspective. Social Policy Journal of New Zealand, 6, 56-68. Maxwell, G., & Morris, A. (1993). Family, Victims and Culture: Youth Justice in New Zealand. Wellington: Institute of Criminology, Victoria University of New Zealand. McGillivray, A., & Comaskey, B. (1999). Black eyes all of the time. Toronto: University of Toronto Press. Mills, L. (2003). Insult to Injury: Rethinking our Responses to Intimate Abuse. Princeton: Princeton University Press. Mills, L. (1999). Killing her softly: Intimate abuse and the violence of state intervention. Harvard Law Review, 113, 550-613. Morris, A. (2002a). Children and family violence: Restorative messages from New Zealand. In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 89-107). Cambridge: Cambridge University Press. 37 Morris, A. (2002b). Critiquing the critics: A brief response to critics of restorative justice. British Journal of Criminology, 42, 596-615. Morris, A., & Gelsthorpe, L. (2000). Re-visioning men?s violence against female partners. The Howard Journal of Criminal Justice, 39, 412-428. Morris, A., & Young, W. (2000). Reforming criminal justice: The potential of restorative justice. In H. Strang & J. Braithwaite (Eds.), Restorative justice philosophy and practice (pp. 11-31). Burlington: Ashgate. New South Wales Department for Women (1996). Heroines of fortitude: The experiences of women in court as victims of sexual assault. Woolloomooloo, NSW: NSW Department for Women. Pennell, J., & Burford, G. (2002). Feminist praxis: Making family group conferencing work. In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 108-127). Cambridge: Cambridge University Press. Presser, L., & Gaarder, E. (2000). Can restorative justice reduce battering? Some preliminary considerations. Social Justice, 27, 175-194. Shapland, J. (2000). Victims and criminal justice: Creating responsible criminal justice agencies. In A. Crawford & J. Goodey (Eds.), Integrating a victim perspective within criminal justice (pp. 147-164). Smart, C. (1989). Feminism and the power of law. London: Routledge. Snider, L. (1998). Towards safer societies: Punishment, masculinities and violence against women. British Journal of Criminology, 38, 1-39. Spohn, C., & Horney, J. (1992). Rape law reform. New York: Plenum Press. Strang, H. (2001). The crime victim movement as a force in civil society. In H. Strang & J. Braithwaite (Eds.), Restorative justice and civil society (pp. 69-82). Cambridge: Cambridge University Press. 38 Strang, H. (2002). Repair or revenge: Victims and restorative justice. London: Oxford University Press. Strang, H., & Braithwaite, J. (2002). Restorative justice and family violence. Cambridge: Cambridge University Press. Stubbs, J. (1995). Communitarian conferencing and violence against women: A cautionary note. In M. Valverde, L. MacLeon, & K. Johnson (Eds.), Wife assault and the Canadian criminal justice system (pp. 260-289). Toronto: Centre of Criminology, University of Toronto. Stubbs, J. (1997). Shame, defiance, and violence against women. In S. Cook & J. Bessant (Eds.), Women?s encounters with violence: Australian experiences (pp. 109-126). London: Sage. Stubbs, J. (2002). Domestic violence and women?s safety: Feminist challenges to restorative justice. In H. Strang & J. Braithwaite (Eds.), Restorative justice and family violence (pp. 42-61). Cambridge: Cambridge University Press. 39 APPENDIX 1 Victim Advocacy Organizations Interviewed South Australia Women's Legal Service, Inc. Child Protective Services, Women & Children?s Hospital Victim Support Service Witness Assistance, DPP Yarrow Place Rape & Sexual Assault Service South Australia Office for the Status of Women Domestic Violence Crisis Service Victims of Crime Coordinator, Office of the Attorney General Queensland Centre Against Sexual Violence Queensland Police, Sexual Crimes Unit Gold Coast Domestic Violence Service Domestic Violence Resource Centre Coordinated Community Response to Domestic Violence Brisbane Rape and Incest Survivor's Support Centre Women's Legal Aid 40 BIOGRAPHICAL STATEMENTS Sarah Curtis-Fawley received her BA in Psychology and Women's Studies from the University of Virginia (1999), where she was deeply involved in anti- sexual assault and domestic violence advocacy work. After working on a MacArthur Foundation study on adolescent offenders' competence to stand trial (1999-01), Curtis-Fawley came to Australia as a Fulbright scholar to collaborate with Daly on the South Australia Juvenile Justice and Criminal Justice (SAJJ-CJ) project during 2001-02. Currently Curtis-Fawley works at a service for homeless youth in Adelaide. Kathleen Daly is Associate Professor, School of Criminology and Criminal Justice, Griffith University, Brisbane. She has written extensively on race and gender in crime and justice, feminism and criminology, and restorative justice. She is currently directing the South Australia Juvenile Justice and Criminal Justice (SAJJ-CJ) project, which is analysing the race and gender politics of restorative justice and indigenous justice, with a series of studies in South Australia, Queensland, and New Zealand (2001-03). She directed a major project on conferencing for youthful offenders and victims in South Australia (1998-99). 
work_fvwyc5ws4ngdxio64uygengy5i	----	Hot Spots Regulation and Environmental Justice Hot Spots Regulation and Environmental Justice Rama Mohana R. Turagaa, Douglas Noonanb, Ann Bostromc a Indian Institute of Management, Ahmedabad, India b School of Public Policy, Georgia Institute of Technology, Atlanta, GA c Daniel J. Evan School of Public Affairs, University of Washington, Seattle, WA Accepted manuscript; final version published as: Turaga, R. M. R., Noonan, D., & Bostrom, A. (2011). Hot spots regulation and environmental justice. Ecological Economics, 70(7), 1395–1405. doi:10.1016/j.ecolecon.2011.02.016 Corresponding Author: Rama Mohana R Turaga Public Systems Group, Indian Institute of Management Campus, Vastrapur, Ahmedabad Gujarat 380015, India Tel: +91-79-66324956 mohant@iimahd.ernet.in 2 Abstract This paper analyzes whether regulating “hot spots” of toxic air pollution by increasing the spatial resolution of regulation could address environmental justice (EJ) concerns. To examine this question, this paper develops a decision model of a regulator choosing emission controls within a net cost minimizing framework. An empirical application of the model using air toxic emission data for Escambia and Santa Rosa Counties in Florida estimates the emission standards and spatial distribution of risks at a coarse and a finer spatial resolutions. Implications for EJ are analyzed by combining the simulated spatial risk distributions at the two resolutions with the demographic data. Results indicate that different measures of EJ point to different conclusions regarding the question of whether finer resolution regulation alleviates EJ concerns. The paper concludes with a discussion of the implications for EJ policy. Keywords: environmental justice, air toxics, spatial resolution 3 1.0 Introduction Environmental justice (EJ) has been one of the central themes of environmental policy debate in the United States over the past decade. The evidence of disproportionate distribution of environmental risks and grassroots political activism in a number of communities across the country led to several policy initiatives to address EJ, including an executive order in 1992 (Brulle and Pellow, 2006). In this paper, we present an ex ante analysis of a specific policy approach primarily aimed at addressing the EJ concerns arising from emissions of air toxics.1 The policy approach studied here involves regulation at the local or community scale by characterizing air toxics risks at fine spatial resolutions. Our primary research question is: does spatially finely resolved regulation of toxic air pollutants lead to a more equitable distribution of risks? To address this question, we first develop a decision model of a net cost minimizing regulator and analyze the implications of finer resolution regulation to emission standards. We then apply the model to air toxics data in two counties to simulate how emission standards, spatial distribution of risks, and measures of EJ could change as regulation changes from a coarse spatial resolution to a finer resolution. We show that the evidence of policy effectiveness in addressing EJ concerns depends on the measure of EJ employed. Our analysis also suggests that EJ policies, in order to be effective, require a clear articulation of the goals of EJ and explicit incorporation of those goals into the decision making process of agencies. This study contributes to the growing literature on the analysis of EJ policy effectiveness. 1 Air toxics are one class of air pollutants regulated under the Clean Air Act. These include pollutants such as benzene, formaldehyde, and heavy metals. 4 This paper is organized as follows. The next sub-section reviews previous research on the evaluation of EJ policies. Section 2 presents some background on the policy approach our paper analyzes. In Section 3, we formulate our research question and describe the methodology used to test our research question. Sections 4, 5, and 6, respectively, present our decision model, empirical analyses, and results. The paper concludes in Section 7 with a brief discussion of the implications of our study for EJ policy. 1.1 Previous Research Some of the early studies on the analysis of EJ policy have focused on evaluating the impact of the EJ executive order (EJEO) 12898 on agency rule making. Bass (1998) utilized two case studies of EJ assessments under the National Environmental Policy Act (NEPA) to recommend “questions” that the federal agencies should address in assessing the EJ implication of NEPA implementation. The U.S. Government Accounting Office, in its recent reports, analyzed three air quality rules promulgated by the U.S. Environmental Protection Agency (EPA) and found that EPA is lacking in clear guidance and tools to effectively incorporate EJEO in its rulemaking (GAO, July, 2005). A more recent study analyzed the Superfund site listing before and after the EJEO and concluded that the implementation of EJEO did not address the inequity in the listing of Superfund sites (O’Neil, 2007). For example, for Superfund sites discovered after the EJEO, ceteris paribus, the probability of listing in a minority or poor community is lower, compared to the sites discovered before the EJEO. The other prominent federal program aimed at addressing EJ has been the EJ Small Grants (EJSG) Program, the objective of which is to encourage collaborative local solutions to environmental problems in EJ communities. This program funds specific non-profit 5 organizations, city, township or county governments, and Native American tribal governments involved in working with EJ communities.2 A spatial analysis of this program showed that funds under this program might not be reaching the intended communities and in several counties that received these grants, TRI emissions have actually increased (Vajjhala, 2007). Although TRI emissions represent an imperfect measure of the environmental outcomes intended under the program, this analysis suggests a lack of clarity in the criteria set for funding under the program. In addition to federal policies, several states adopt and implement EJ policies, either on their own or by federal mandates (see Ringquist and Clark, 1999 for a review of state EJ policies). A comprehensive study of state EJ policy adoption tested whether EJ policy at state level represents a protective regulatory policy or a redistributive policy and found that state EJ policies share the characteristics of both policies (Ringquist and Clark, 2002). One of the several findings of this study is that “environmental justice exists in the policy making arena as a shadow rather than as an issue of substance and immediacy” (p: 380). The authors attribute this to the lack of consensus on part of the EJ activist community on such basic issues as the nature of EJ problem and potential solutions to the problem. Finally, an important component of EJ policy is providing opportunities and avenues for the involvement of EJ communities in the decision making process. A growing trend in this area is the community-based participatory research, which emphasizes “involving community members in identifying issues in need of investigation, collaborating in the conduct of the research, and translating research-based findings into action, including advocacy for policy level change” (Petersen et al., 2006, p: 339). Case study evaluation of some of these efforts, 2 EPA Factsheet available at http://www.epa.gov/compliance/resources/publications/ej/factsheets/fact-sheet-ej- small-grants-4-08.pdf 6 especially in California, suggests significant success in the ability of these community-academic partnerships to affect policy change that benefits public health (Petersen et al., 2006; Minkler et al., 2008). The drawback of these case study evaluations is the difficulty in separating the effect of the partnerships from other contextual factors that contribute to the policy change. Overall, our review suggests that much of the emphasis in the literature has been on the “process” aspects of the EJ policy implementation (e.g., whether the EJ intervention led to a policy change and whether the adopted EJ policies are protective or redistributive in nature). Few studies analyze particular EJ policies from the perspective of the environmental outcomes to the targeted EJ groups. Further, it appears that the effectiveness of EJ policies is impeded by a lack of clarity and agreement on fundamental issues, including the nature of the EJ problem and metrics to assess “justice” or “equity” or “disproportionate impact” (Noonan, 2008). This paper addresses these issues and contributes to the EJ policy literature by analyzing, ex ante, the EJ implications of a specific policy: regulation of air toxics hot spots at fine spatial resolutions. 2.0 Policy Background The increasing use of emissions trading programs in U.S. air pollution policy has brought air pollution “hot spots” 3 – locations with unacceptably high pollutant concentrations – into focus in recent policy debates. The critics of the trading programs raise the concern that such a policy would result in hot spots near those sources for which it is cheaper to buy permits than abate emissions (e.g., Heinzerling and Steinzor, 2004). Concern about hot spots has been a 3 The National Academies study on future air quality management in the United States defined hot spots as “locales where pollutant concentrations are substantially higher than concentrations indicated by ambient outdoor monitors located in adjacent or surrounding areas (NRC, 2004, p:274).” 7 driving force of opposition, for example, to EPA’s mercury rule (Graham, 2007) and California’s greenhouse emissions regulation (Hanemann, 2008). In addition to concerns related to trading programs, there is also growing evidence of hot spots near roadways due to vehicular air pollution. Zhu et al., (2002), for example, show that the concentration of ultrafine particles within 100m of a roadway could be 25 times higher than concentrations beyond 300m. Addressing hot spots is one of the main challenges facing air quality management in the United States (NRC, 2004). 2.1 Hot Spots and Air Toxics Hot spots with regards to air toxics have been a particular concern for at least three reasons. First, air toxics emissions from a large number of small sources such as dry cleaners and gas stations have the potential to create high localized concentration of emissions in densely populated areas (EPA, 2006a). Second, the sparse ambient monitoring network4 for air toxics is unlikely to capture local variations in pollutant concentrations, especially the concentrations close to the emitting sources. Finally, evidence suggests that some population groups (low- income and minority) may be disproportionately subjected to higher risks from air toxics (e.g., see Morello-Frosch et al., 2001; Dolinoy and Miranda, 2004; Apelberg et al., 2005). 2.2 Hot Spots Regulation at Fine Spatial Resolutions Reduction of risks from hot spots has been an important component of EPA’s overall air toxics strategy. The National Air Toxics Program or “Urban Air Toxics Strategy” (EPA, 2000) intended to “characterize exposure and risk distributions….” in “geographic ’hot spots’…” (p: 38712) to achieve the goal of addressing disproportionate impacts of air toxics. Similarly, risk 4 The current national monitoring network for air toxics, called the National Air Toxics Trends Station network, has only 22 monitors across the country and monitors 18 toxic air pollutants (E.P.A, 2004), mainly in large urban areas. 8 reduction in hot spots is a “near-source” and “community/neighborhood” goal of EPA’s Workplan for the National Air Toxics Program and Integrated Air Toxics State/Local/Tribal Program Structure (EPA, 2001). One approach to deal with hot spots has been to encourage local/community-scale regulation of air toxics at fine spatial resolutions. The rationale behind this approach is that monitoring networks and modeling studies at the national scale (e.g., the National Air Toxics Assessment, which estimates risks at census tract resolution) do not provide adequate spatial resolution to regulate locations of high air toxics concentrations (i.e., hot spots) (e.g., see Dolinoy and Miranda, 2004). Thus, in its latest national air toxics monitoring strategy, instead of expanding the sparse national air toxics monitoring network, EPA decided to use 60% of its monitoring budget to fund community-scale air toxics efforts (EPA, 2004a). These projects typically involve extensive ambient monitoring or modeling studies to characterize air toxics risks at very fine spatial resolutions. Currently, EPA is supporting projects in about 30 communities across the country, under its community-based air toxics projects program.5 Consistent with this approach, EPA has also been developing tools and guidance to model air toxics risks at finely resolved spatial units. An example of this is the recently developed integrated risk assessment tool, the Regional Air Impact Modeling Initiative (RAIMI) (EPA, 2006b). RAIMI is a GIS-based tool that can be used to estimate cancer and non-cancer risks from multiple air toxics emitted from multiple sources at a community resolution. EPA has also published a detailed guidance document for conducting community-scale risk assessments as part of its Air Toxics Risk Assessment Reference Library series (EPA, 2006a). 5 http://www.epa.gov/air/toxicair/community/basic.html. Last accessed on July 8, 2009. http://www.epa.gov/air/toxicair/community/basic.html 9 An example of this policy approach is the Strategic Toxic Air Reduction (STAR) program of The Louisville Metro Air Pollution Control District Board.6 Based on extensive local monitoring and modeling studies, this program identified 37 stationary source air toxics that pose or may pose risks above a specified health risk goal; nearly 170 facilities are subject to regulation under this program. These facilities must conduct risk assessments to estimate cancer and non-cancer risks posed by their emissions and submit an emission reduction plan to reduce the risks below the health risk goal (Williams, 2007). The U.S. EPA provided financial and technical assistance to design the STAR program. 3.0 Research Question and Methodology As the discussion above illustrates, regulation at finely resolved spatial units is emerging as one of the key approaches to addressing air toxics hot spots. To elucidate the implications thereof, this paper asks: what effects will regulating air toxics at finely resolved spatial units have on the spatial distribution of risks and on environmental justice? The initial steps of our analysis strategy involve simulating spatial distribution of air toxics risks under regulation at different spatial resolutions. We then assess if and how measures of EJ change as the spatial resolution of regulation increases. The following outlines the methodology we adopt to address our research question: • We first develop a model of an optimizing decision maker within the context of air toxics regulation, based on previous research and the decision processes described by EPA and state environmental agencies. 6 http://www.louisvilleky.gov/APCD/STAR/. Last accessed on October 16, 2009. http://www.louisvilleky.gov/APCD/STAR/ 10 • We then apply this decision model to analyze stationary sources emitting air toxics in Escambia and Santa Rosa counties in Florida. The empirical analysis includes, estimation of: (i) the emission standards a regulator would set and (ii) the resulting spatial distribution of risks under two spatial resolutions of regulation: the census tract and a finer census block resolution. This simulates the risk distribution that would result from a policy aimed at addressing hot spots (i.e., regulation at finer resolution). • Lastly, we overlay the spatial distributions of risk estimated at each resolution (in the previous step) on to the demographic data in our study area to analyze the EJ implications of spatially finely resolved regulation. We use three different measures of EJ, explained in the later sections. 4.0 A Model of Air Toxics Decision Making The predominant policy tool employed in the management of air toxics in the U.S. is emission standards, which either limit the emissions to a specified level or specify the technology that the regulated entities should employ to control emissions. In order to develop our decision making model, we review the relevant federal and state level regulations. A key element of consideration in the risk-based regulation of air toxics is the concept of maximum individual risk (MIR). MIR is the lifetime upper-bound risk to which the maximally exposed individual would be exposed. In 1987, in its judgment in the Vinyl Chloride case, the U.S. Court of Appeals for the District of Columbia directed EPA to consider costs of air toxics regulation only after ensuring an acceptable MIR. Since then, MIR has been a constraint that EPA has to meet in its decisions on setting emission standards for air toxics.7 7 van Houtven and Cropper (1996) analyzed EPA’s air toxics decisions under the Clean Air Act of 1970 and found that EPA considered both the costs and benefits of regulation until the verdict on the Vinyl Chloride case; after the 11 In its current residual risk regulations, 8 EPA adopts a two-step decision process, which is consistent with the direction of the court in the Vinyl Chloride case. The first step involves determining the acceptable MIR. The second step sets emission standards, taking into account other factors including the costs of compliance, technological feasibility, and population risks, but only after ensuring that the MIR will not exceed the acceptable level determined in the first step (EPA, 1999b). A related regulation at the state level is the Air Toxics “Hot spots” Information and Assessment Act enacted by the California Air Resources Board in 1987. This act requires that the facilities that cause “significant” health risks conduct health risk assessments and inform the affected public of those risks. “Significant” health risks are those risks that exceed the threshold risk levels set by the concerned Air Pollution Control Districts (APCD). This threshold risk is similar to MIR under the federal residual risk regulation. Facilities that exceed the threshold risk must submit a “risk audit and reduction plan” for APCD’s approval, in order to bring the risks down to the threshold value. Consistent with these decision processes and following the previous models of agency decision making in the literature,9 the regulator in our decision model chooses emission standards to minimize net costs, subject to the constraint that the MIR does not exceed a threshold level. The MIR, however, is determined as the maximum risk estimated based on a fixed number of locations in space (for example, ambient air monitoring network or the receptor network of an air quality model). Hence, we model the MIR constraint as follows: no spatial location over which risks are regulated should have a risk exceeding the threshold value. Vinyl Chloride decision, however, EPA did not consider costs in regulating air toxics, unless the estimated MIR was below 1 in 10,000. 8 Under the residual risk rules, EPA is required to assess the risks that remain after the implementation of technology standards and set additional standards, if required. 9 Such previous studies include analysis of pesticide regulations (Cropper et al., 1992), Superfund clean-up decisions (Gupta et al., 1992), and state adoptions of strict liability programs (Alberini and Austin, 1999). 12 4.1 Decision Problem Set-up Suppose there are I sources (i =1,2,…,I), each emitting J toxic air pollutants (j = 1,2,3,….,J). First, we assume that the regulator cares about only two types of costs: private costs of compliance for the polluting sources and the health costs of residual risk. We further assume for simplicity that our regulator weighs these two costs equally. For any source i reducing its emissions of pollutant j from the initial level of Qbij to Qij, and given MCij (assumed to be strictly convex and increasing) as the marginal cost function for that pollutant and source, the private abatement cost (or compliance costs) takes the form: ij b ij Q I J p ij ij ij i=1 j=1 Q C MC (Q ) dQ= ∑∑ ∫ (1) 0p ijC Q∂ ∂ < (2) The second type of costs our regulator is concerned about is the population health costs. We assume here that our regulator quantifies only the health costs associated with cancer risks and that the cancer risks are additive across different toxic pollutants. To develop an expression for these health costs, we begin with the individual cancer risk, 10 rm, defined as: 1 1 I J m ij ijm j i j r Q uβ = = = ∑∑ for all individuals m = 1,2,3,…, M (3) Where, ijQ Emission rate (gram/second) of pollutant j from i th source 10 Cancer risk is expressed as probability. For example, if the cancer risk is n in a million, then it is expected that there will be ‘n’ additional cases of cancer when a million people are exposed to that level of risk. 13 ijmβ Exposure concentration, in [( 3/g mµ )/(g/s)], an individual m is exposed to due to a unit emission rate (1 g/s) of pollutant j from source i = f (meteorology, emission and site characteristics, location of m with respect to the source, activity patterns of individuals, etc.,) ju Unit Risk Factor for j th pollutant, ( 3/g mµ )-1, which represents the probability of cancer due to continuous exposure for 70 years to 1 3/g mµ of pollutant j For M individuals (indexed m =1,2,…,M) exposed, the total population risk (i.e., the total number of expected additional cancer cases) is merely the sum of all the individual risks. Assuming that the value of statistical life (VSL) is constant across all individuals, the population health costs could be estimated simply as the product of the total number of expected additional cancer cases and the VSL (V).11 Thus, the health costs associated with cancer are given as: 1 M h m m C r V = = ∑ (4) 0h ijC Q∂ ∂ > (5) The MIR constraint requires that the maximum cancer risk not exceed the threshold value of r. Let K be spatial resolution at which risks are regulated. Here K represents the number of locations, within a geographic area of interest, over which risks are regulated. The MIR constraint for regulating risks at spatial resolution K can be expressed as: 1 1 1,2,3,…., I J ij ijk j i j Q u r k Kβ = = ≤ ∀ =∑∑ (6) 11 This assumes that incidence of cancer results in mortality and that VSL is constant across additional cancer cases. Because V enters as a scalar, it implies that there is no heterogeneity across individuals in their willingness to pay to reduce the risk of death. 14 where ijkβ is the exposure concentration due to unit emissions at any given spatial location k. K is a variable of interest for the research question addressed here. A finer spatial resolution of regulation would then mean an increase in the number of receptor locations over which risks are regulated. In other words, K is increasing with spatial resolution.12 Regulating over census tracts instead of counties, for example, implies increasing K. The decision maker’s objective function is thus: ( ) 1 1 1 1 1 . ij ij b ij QI J I J M ij ij ij ij ijm jQ i j i j mQ Min MC Q dQ Q u Vβ = = = = =                +∑∑ ∑∑∑∫ (7) subject to the constraints in equation (6) and the non-negative emissions constraints: 0≥ijQ In the next section, we apply this decision model13 to air toxics data of two counties, Escambia and Santa Rosa in Florida, to first estimate the emission standards a regulator would choose under a coarse resolution (K) and a finer resolution ( K′ >K). The emission standards under the two resolutions of regulation will then be used to estimate the resulting spatial distribution of risks at each resolution. Finally, we combine these risk estimates with demographic data to analyze the EJ implications of regulating at finer spatial resolutions. 12 Our conception of finer resolution here is simply an increase in the number of spatial locations over which risks are regulated. The implicit assumption is that the location of new receptors at the finer resolution is arbitrarily determined, which appears to be the case in the real world (Su et al., 2007). 13 The full analytical solution for the model is available from the authors. The basic result is that the optimal emission standards at finer regulation could be stricter, laxer, or unchanged relative to the emission standards at coarse regulation. The direction of change depends on (i) whether or not the finer resolution reveals new hot spots that are not revealed at coarse resolutions and (ii) how much a source/pollutant contributes to the risk at those new hot spots. The full solution is not included here due to space constraints. 15 5.0 Empirical Analysis Our study area consists of two counties in Northwest Florida: Escambia and Santa Rosa. This region has a history of problems related to toxic pollutants and environmental justice. One of the most publicized problems has been the case of “Mount Dioxin,” a Superfund site of Escambia Treating Company. The dioxin contamination from this site prompted grassroots level action and led to relocation of people living near the site (see Bullard and Johnson, 2000). More recent concerns relate to the quantities of toxics emissions. According to the toxic release inventory data of 2005, Escambia county was ranked top and Santa Rosa was ranked 9th in Florida in terms of total tons of toxics released into various media. Responding to public concerns related to environmental impacts, the US Congress sponsored the Partnership for Environmental Research and Community Health (PERCH) to conduct a series of environmental health studies, including an assessment of air toxics risks in the region (UWF, 2011). According to the National Toxics Inventory (NTI) of 1999, our study area had 94 air toxics emission sources distributed across 43 facilities, including manufacturing plants, utilities, and waste landfills, and emitting 78 different air toxics. The sources include “major” 14 sources as well as “area”15 sources. Many of these sources are currently regulated under the Maximum Achievable Control Technology (MACT) standards developed by the federal EPA under the CAA. Florida, to the best of our knowledge, does not have a separate state program that regulates the sources of air toxics. Florida department of environmental protection, however, 14 A “major” source is one that emits more than 10 tons per year (TPY) of any one of the regulated air toxics or more than 25 TPY of a combination of air toxics. 15 “Area” sources emit quantities below the thresholds specified for “major” sources. 16 issues operating permits in accordance with the federal regulations and enforces compliance with the permits. We use two criteria to select a subset of the 94 sources for our analysis: (1) the source is categorized as a “major” source and (2) the source emits at least one toxic air pollutant for which inhalation cancer risk can be quantified (because our model assumes quantification of only cancer risks). Based on these criteria, our final sample includes 15 sources from seven facilities, which emit six different air toxics.16 The empirical analysis uses three nested spatial resolutions: census tract, census block group, and census block.17 The census tract (“tract” from hereon) is the biggest spatial unit and is composed of several census block groups (“block group” from hereon) while the census block (“block” from hereon) is the finest spatial unit with a number of blocks forming a block group. Furthermore, in the empirical analysis, because it is not possible to estimate risks at the individual level, we apply the risk estimated at the geographical centroid of a census unit to all the individuals within that census unit. Finally, consistent with the theoretical decision model, in our empirical analysis, finer resolution is assumed to include all those locations over which risks would be regulated at the coarse resolution in addition to the new receptors. Thus, for example, the receptors for regulation at the block group resolution include not only the centroids of all the block groups but also that of all the census tracts. General Algebraic Modeling System (www.gams.com) version 22.3 is used to solve the optimization model. 5.1 Data 16 We dropped one facility that met our criteria from the final sample because no abatement cost information was available. 17 The choice of census unit to characterize spatial resolution is one of convenience; with the advent of advanced remote sensing technologies to characterize air pollution, it is perhaps possible to regulate at much finer resolutions than those we choose here. http://www.gams.com/ 17 5.1.1 Marginal Cost (MC) Functions We estimate marginal MC functions using an engineering cost approach, which is a common method in the literature (e.g., Kilmont et al., 2000; EPA, 2003; Karvosenoja and Johansson, 2003; Rousseau and Proost, 2005). Ideally, the MC functions should be derived for each source based on the data specific to the source. In reality, however, such information is rarely available, if ever, especially for air toxics. Thus in our case, we make some assumptions to make sense of the little that data are available. Specifically, we assume that each of the sources in our analysis represents a “typical” or “average” firm in that source category. We rely on EPA’s abatement costs estimates under its technology-based MACT standards. EPA is required to conduct Regulatory Impact Analyses (RIA) to assess the costs and benefits of its costly regulations. In case of MACT standards, the EPA assessed the costs of a range of available abatement technologies for each regulated source category. To estimate the cost functions for our empirical analysis, we first identify the MACT standards relevant to the air toxics sources in our sample. We then use the air permit documents available from the Florida Department of Environmental Protection to match our sources with the corresponding MACT standard. After identifying the relevant MACT for each source, we collect, from the relevant RIAs, the information on the emission control options including the range of control technology options available, the emission reductions associated with each technology option, and the annual costs of implementing the technology.18 The annual costs include estimated annualized capital costs as well as operational costs. Because these studies were carried out in different 18 This data on abatement technology options, removal efficiencies, and annual costs for each source are available from the authors on request. 18 years, we convert all costs into 1999$. Typically, the RIAs report total compliance cost estimates aggregated at the level of the source category. The estimates, however, report the number of firms on which these aggregate estimates are based. Thus, for an “average” firm, the estimated costs could be calculated as the total sector-wise annual costs divided by the number of firms. Based on our assumption that the source in our analysis represents an “average” source in that category, we use the cost estimates generated in the previous step for our empirical analysis In this analysis, in order to be consistent with the assumptions of our decision model (i.e., strictly convex and increasing MC functions), we fit our cost estimates to an exponential functional form. Another advantage of an exponential form for our analysis is that this functional form restricts the estimated annual costs to positive values. This is also consistent with previous studies, which assumed either a quadratic form (Hartman et al., 1997) or an exponential function (Mariam and Barre, 1996). ij ij b Q ij ij C a e= (8) Annual costs of abatement for pollutant from source ($) Emission levels of pollutant from source (Ton/Year) , Parameters to be estimated ij ij ij ij C j i Q j i a b = = = The cost function is fitted using non-linear least squares regressions with the annual costs as the dependent variable and emission level (TPY) as the independent variable. The estimated cost parameters for various sources are given in Table 1. The table also shows the standard errors for the coefficient estimates. Because the data for some sources had only two abatement technology options, the standard errors could not be estimated. 19 [TABLE 1 APPROXIMATELY HERE] 5.1.2 Exposure Concentrations ( ijmβ ) Application of the decision model to simulate the optimal emission standards a regulator would set requires estimation of exposure concentrations at the centroids of various census units. This analysis estimates the annual average ambient air toxics concentrations using the version 3 of the Industrial Source Complex Short Term (ISCST3)19 air dispersion model, integrated within RAIMI, the integrated risk assessment tool developed by EPA. RAIMI uses a geographical information system (GIS) interface. The GIS data required for RAIMI include (i) land use and land cover maps, which we obtained from Florida Geographic Data Library, (ii) digital elevation maps, which we collected from the United States Geological Survey, and (iii) aerial photographs of the two county region, downloaded from Terra Server (http://terraserver.microsoft.com). The ISCST model also requires hourly upper air and surface meteorological data. We use EPA’s Meteorological Preprocessor for Regulatory Models to process the raw meteorological data collected at the Pensacola Airport for the years 1986 to 1990. Although the theoretical model requires that we estimate the exposure concentrations, we use the ambient air toxics concentrations as surrogates for exposure concentrations because RAIMI does not incorporate an exposure model. In addition, the risk estimation within RAIMI is based on the assumption that individuals would be exposed to the same estimated exposure concentrations throughout their lifetime. This is not realistic but it is very difficult, if not impossible, to predict 19 ISCST3 is a steady-state, multiple source, Gaussian dispersion model and has been the preferred regulatory model for industrial sources until it was replaced by AMS/EPA Regulatory Model (AERMOD) in 2005 (FR, 2005) http://terraserver.microsoft.com/ 20 the lifetime exposures, which depend on the environment in which the individual will live in his/her entire lifetime. 5.1.3 Other Data With regards to the other data, we adopt a value of $5.5 million (1999$) for VSL (V in the model). This is the same value EPA used for its benefit cost assessment of the Clean Air Act (EPA, 1999a) for 1990-2010 (EPA used a mean VSL of $4.8 million in 1990$, which is $5.5 million in 1999$). The baseline emissions (Qbij in the decision model) represent current emissions according to the 1999 NTI for the sources and pollutants selected for the empirical analysis. Values of unit risk factors, ju , for each of the six pollutants in the sample are obtained from EPA’s Integrated Risk Information System database. The values used in the analysis are: 0.0000078 for benzene, 0.0000022 for acetaldehyde, 0.000013 for formaldehyde, 0.000068 for acrylonitrile, 0.00024 for nickel, and 0.0043 for arsenic. Finally, we obtain the population data from the US Census Bureau for the year 2000. 21 6.0 Results 6.1 Emission Standards Table 2 shows the estimated emission standards at three spatial resolutions under a MIR constraint of 100 in a million. The emission standards do not change at the block group resolution compared to a coarser census tract resolution. This is because regulation at block group resolution for our empirical setting does not capture any new hot spots. The last column of Table 2 shows the emission standards at the finest (block) resolution. Compared to regulation at coarser resolution, the emissions at this resolution are higher for a majority of sources and lower for some sources – resolution of regulation at the block level captured new hot spots that would not have been regulated at the coarser resolutions. Table 3 shows the estimated emission standards under different resolutions of regulation at a more restrictive threshold cancer risk of 10 in a million. [TABLE2 2 and 3 APPROXIMATELY HERE] 6.2 Spatial Distribution of Cancer Risk We use these emission standards, Q*ij, to estimate cumulative excess individual cancer risk, rb, attributable to air toxics exposures at the centroid of each census block (b=1,2,…,B) in our two-county region for each spatial resolution of regulation. By estimating risk at the centroid, we assume that each individual in the census block is exposed to that risk level. We calculate the cancer risk with the following equation (the terms are defined as before): 22 * 1 1 1,2,3,…., I J b ij ijb j i j r Q u b Bβ = = = ∀ =∑∑ (9) Figures 1 shows the spatial distribution of cancer risks when air toxics are regulated at the tract resolution with the threshold risk constraint of 100 in a million. Figure 2 shows the spatial distribution at the block resolution regulation for the same threshold risk. Figures 3 and 4 show the spatial distribution of cancer risk for tract and block regulation, respectively, at the 10 in a million risk threshold. [FIGURES 1 to 4 APPROXIMATELY HERE] 6.3 Environmental Justice Analysis The first EJ measure we use is based on an interpretation of EJ by the EPA: “Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.” (EPA, 2008) Based on this interpretation, we assess the EJ implication of regulation at finer resolution by using the following measure: EJ Measure 1: No population group should be disproportionately exposed to hot spots. 23 In this measure, the “negative environmental consequence” is the probability of an adverse health outcome, which in our case is the risk of cancer. If one defines hot spots as the locations at which the risk of an adverse health outcome is above an acceptable threshold, as we have defined in this paper, then a comparison of Figure 1 and Figure 2 shows that the regulation at finer block resolution would eliminate the hot spots that would have resulted from a coarse regulation (the blocks in black in Figure 1 are no longer seen in Figure 2). This holds true at the 10 in a million threshold risk (Figures 3 and 4) as well. The result is not surprising because at the block regulation, our decision model constrains the risk in each block to the acceptable threshold risk. Thus, by this definition of EJ, under the regulation at finer spatial resolution, no group is disproportionately exposed to unacceptable risk levels. The second measure we use is based on the “disproportionately adverse effect” definition developed by EPA in its EJ toolkit for staff. “….the term disproportionately high and adverse effects or impacts means an adverse effect or impact that: (1) is predominately borne by any segment of the population, including a minority population and/or a low-income population; or (2) will be suffered by a minority population and/or low-income population and is appreciably more severe or greater in magnitude than the adverse effect or impact that will be suffered by a non- minority population and/or non-low-income population.” (EPA, 2004b, p: 71) The toolkit also emphasizes that, to assess whether an EJ concern exists, the adverse impacts in the communities of concern should be compared to the impacts in reference communities. In our interpretation of this guidance, a “community of concern” is any census block in which the proportion of minority population is higher than the proportion of minority 24 population in our study area as a whole. The proportion of minorities in our study area is 22.4% and thus any block group that has a minority population share of more than 22.4% is a community of concern for our analysis. To assess the EJ implications, we compare the mean individual cancer risk in communities of concern to the mean individual risk in all other communities. Base on this classification, our EJ measure is: EJ Measure 2: On average, communities with a larger proportion of minorities than the region as a whole should not be exposed to greater individual cancer risks than the other communities. Table 4 shows the results of our analysis. At the tract resolution, the mean individual risk in the communities of concern is significantly higher than the mean risk in the reference communities. This is the case for both the 100 in a million and 10 in a million risk thresholds. If the regulation at finer resolution were to address the EJ concern, as defined by our measure, the difference in mean risk between the two communities should be statistically insignificant at the finer block resolution. However, as the table 4 shows, that is not the case. The mean individual cancer risk at the finer block resolution is statistically higher in the communities of concern at both the threshold risks. Thus, the regulation at finer resolutions does not address the EJ concerns, as defined by this second measure. Our third EJ measure is based on a population risk measure. The previous two measures are based on individual risk, which represents the probability that an individual will develop a cancer when exposed to a certain concentration of air toxics. The population risk is simply the 25 sum of individual risks in a population. For example, if a million people are exposed to a 1 in a million risk, the expected population risk is one case of cancer. 20 At any given resolution of regulation, we assess equity with respect to the population risk using the following measure: White, Non-white i i i i i i i CC CC EJPOP i POP POP = = ∑ ∑ (10) Where iCC = Additional Expected Cancer Cases for Racial Group i iPOP = Population of Racial Group i In a just world, each population group should have a value of one for this measure. A value greater (less) than one indicates that the group bears a greater (lower) share of the expected cancer cases relative to the share of their population. [TABLE 4 APPROXIMATELY HERE] EJ Measure 3: The share of expected additional cancer cases for minorities as a proportion of their share of total population should be equal to one. Figure 5 and Figure 6 show the results of the analysis with respect to our population risk EJ measure. Both figures show that at tract resolution as well as block resolution, the EJ 20 One can argue that the population risk is a more appropriate measure because it weights the risk by population. For example, if two census blocks are exposed to same individual risk but if one of the blocks has a much higher population than the other, the individual risk measure will not capture the fact that the overall risk is greater in the block with larger population. 26 measure is greater than one for nonwhites and less than one for whites. As explained earlier, this result indicates that nonwhites would share a greater share of expected cancer cases relative to their share of population and this situation is not alleviated at a finer resolution regulation. That is, if finer resolution regulation were to address EJ concerns, our EJ measure should reduce from greater than one at tract resolution to one at block resolution, which does not happen either at 100 in a million threshold risk scenario or at the 10 in a million risk threshold scenario. This suggests that the regulation at finer resolutions is unlikely to adequately address EJ concerns as defined by our third measure. [FIGURES 5 and 6 APPROXIMATELY HERE] 7.0 Discussion and Implications Regulation of air toxics at finely resolved spatial units has been emerging as an approach to deal with hot spots. Given that addressing EJ concerns is one of the primary rationales for regulating hot spots, our goal in this paper was to analyze, ex ante, whether the policy of finer regulation of hot spots could address EJ concerns. Based on the interpretation of various regulations and guidelines on EJ, we constructed three measures of EJ in order to evaluate the policy. Our analysis suggests that increasing the resolution of regulation could change the spatial distribution of risk in such a way that the risk in hot spots (i.e., locations with risk levels beyond some acceptable level) is mitigated; the change in the distribution of risk might not, however, translate to a more equitable distribution of risk across racial groups. In other words, 27 the policy of finer resolution regulation would be a protective regulatory policy but not a redistributive policy in a way that it addresses EJ concerns. It is possible to argue that our results are not necessarily generalizable across all situations and locations. That is, it is conceivable that under some other empirical settings, spatially finer regulation would result in redistribution of risks in a way that addresses the EJ concerns, even within our modeled decision framework. Such an outcome would, however, be a result of chance rather than design. Even assuming that redistribution of risks in a way that equalizes risks across racial groups is the goal of EJ policies (which itself is not clear), the current decision process, as reflected by our model, incorporates only a general equity constraint and has no provision that explicitly addresses EJ goals. This would, by design, ensure only a protective policy. Thus in order to guide future EJ policy, EPA and the other state agencies, in collaboration with the potentially affected EJ communities, should develop well-defined EJ goals and explicitly incorporate those goals into the decision process. For example, if the goal is redistribution of risks from the EJ groups to the other groups, then such a goal could be incorporated into the decision process by specifying location-specific constraints. One such location-specific constraint could be that locations, in which the percentage of the minorities exceeds the overall percentage of the minorities in the region, should be subjected to stricter risk threshold standard than other locations. Such a constraint is easy to incorporate into the decision framework we modeled here. The challenge, however, is to arrive at a basis for specifying the location-specific risk thresholds. What should be the risk threshold for minority areas relative to other areas in the region? This question gets complicated because of the lack of conclusive 28 evidence or guidance on the extent (quantitatively) to which EJ groups are more susceptible than other groups to exposure from air pollution (see Sexton, 1997 and Post et al., 2009 for a discussion). Another implication of our findings is that the assessment of EJ policy success could depend on the definition of EJ goals. In the context of the policy we analyzed, if the goal is to ensure that the EJ communities are not exposed to adverse environmental impacts greater than some acceptable threshold levels, then the finer regulation policy meets that goal by design. If the goal, however, is to redistribute risk such that the adverse impacts are equalized across groups, then the policy of finer resolution regulation may not help. This suggests that agencies should develop clear metrics for measuring the effectiveness of EJ policies, in addition to specifying well-defined EJ goals. Future extensions to our paper can take several paths. A potentially interesting path is to investigate the implications of our assumptions, in the decision model as well as empirical analysis, for the main findings. First is the assumption that there is no variation in susceptibility to air toxics exposures across population groups. It is straightforward to incorporate such a variation into our model and empirical analysis if concentration-response functions (cancer unit risk factors in the case of toxic air pollutants) can be specified differently for different population groups. Such subgroup-specific risk factors are currently not available21, however (Sexton, 1997; Post et al., 2009). Second, due to limitations in the abatement cost data, we used the cost functions for an “average” firm in a given source category as a proxy for source-specific cost 21 The only exception with regards to cancer risk assessment is the case of children. In its “Supplemental Guidance for Assessing Susceptibility from Early-Life Exposure to Carcinogens” the EPA recommends incorporating age dependent adjustment factors (ADAFs) in the dose-response relationships (EPA, 2005b). For example, EPA recommends an ADAF of 10 for exposures before age 2 and an ADAF of 3 for exposures between the ages 2 and 16. 29 functions. Although source-specific functions are unlikely to significantly alter our main findings, future research could use the more accurate plant-specific cost functions, if available. Third, we assumed constant VSL across individuals. Theoretical and empirical evidence in environmental economics indicates that VSL could vary with such factors as age, income, and baseline risk (Hammitt, 2000). The evidence, however, does not appear conclusive (Krupnick, 2007) and thus the current regulatory analysis continues to be based on constant VSL (EPA, 2007). In our case, we expect that a varying VSL will affect the risk distributions at coarse and finer regulation in a similar fashion. Thus a varying VSL is unlikely to change our main findings significantly because our analysis is based on the differences in risk distribution between regulation at the coarse resolution and a finer resolution. Again, it is straightforward to incorporate individual-specific VSL into our model and empirical analysis and we wish to incorporate such variations in future extensions. Acknowledgments Much of this work was carried out during Turaga’s tenure first as a graduate student at the Georgia Institute of Technology, Atlanta, GA and then as a Research Associate at Dartmouth College, Hanover, NH. We gratefully acknowledge research support from the University of West Florida (UWF) Sub Award # 2519-229-22(02). The prime award is from the U.S. EPA (Award # /x974550002-3) for the Partnership for Environmental Research and Community Health (PERCH) project. We would also like to acknowledge Mark Borsuk and two anonymous reviewers for their valuable inputs to the manuscript. 30 References Alberini, A., Austin, D., 1999. On and Off the Liability Bandwagon: Explaining State Adoptions of Strict Liability in Hazardous Waste Programs. J. Regul. Econ. 15, 41-64. Apelberg, B.J., Buckley, T.J., White, R.H., 2005. Socioeconomic and Racial Disparities in Cancer Risk from Air Toxics in Maryland. Environmental Health Perspectives 113, 693. Bass, R., 1998. Evaluating environmental justice under the national environmental policy act. Environmental Impact Assessment Review 18, 83-92. Brulle, R.J., Pellow, D.N., 2006. Environmental Justice: Human Health and Environmental Inequalities. Annual Review of Public Health 27, 103–124. Bullard, R.D., Johnson, G.S., 2000. Environmental justice: Grassroots activism and its impact on public policy decision making. Journal of Social Issues 56, 555-578. Cropper, M.L., Evans, W.N., Berardi, S.J., Ducla-Soares, M.M., Portney, P.R., 1992. The Determinants of Pesticide Regulation: A Statistical Analysis of EPA Decision Making. J. Polit. Economy 100, 175-197. Dolinoy, D.C., Miranda, M.L., 2004. GIS Modeling of Air Toxics Releases from TRI-Reporting and Non-TRI-Reporting Facilities: Impacts for Environmental Justice. Environmental Health Perspectives 112, 1717-1724. E.P.A, 2004. National Monitoring Strategy: Air Toxics Component. U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards. Accessed from on EPA, 1999a. The Benefits and Costs of the Clean Air Act, 1990 to 2010. EPA-410-R-99-001, Office of Air and Radiation, Washington, DC. Accessed from on 31 EPA, 1999b. Residual Risk Report to Congress. US Environmental Protection Agency, Office of Air and Radiation, Office of Air Quality Planning and Standards. Accessed from on EPA, 2000. National Air Toxics Program: The Integrated Urban Strategy’. Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina, July, 99-007. EPA, 2001. Workplan for the National Air Toxics Program and Integrated Air Toxics State/local/tribal Program Structure. Emission Standards Division, Office of Air Quality Planning and Standards. Accessed from on EPA, 2003. International Analysis of Methane and Nitrous Oxide Abatement Opportunities: Report to Energy Modeling Forum. Accessed from http://www.epa.gov/climatechange/economics/pdfs/methodologych4.pdf on 18 February 2011 EPA, 2004a. National Monitoring Strategy: Air Toxics Component. U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards. Accessed from on EPA, 2004b. Toolkit for Assessing Potential Allegation of Environmental Injustice. Office of Environmental Justice. Accessed from on EPA, 2006a. Air Toxics Risk Assessment Reference Library Volume 3, Community-Scale Assessment. Accessed from http://www.epa.gov/ttn/fera/risk_atra_vol3.html on EPA, 2006b. RAIMI – Regional Air Impact Modeling Initiative. Accessed from http://www.epa.gov/earth1r6/6pd/rcra_c/raimi/raimi.htm on 12 March 2006 EPA, 2007. SAB Advisory on EPA’s issues in valuing mortality risk reduction. Office of the Administrator, Science Advisory Board, October 12, 2007. Accessed from http://www.epa.gov/climatechange/economics/pdfs/methodologych4.pdf http://www.epa.gov/ttn/fera/risk_atra_vol3.html http://www.epa.gov/earth1r6/6pd/rcra_c/raimi/raimi.htm 32 http://yosemite.epa.gov/sab%5Csabproduct.nsf/4128007E7876B8F0852573760058A978/ $File/sab-08-001.pdf on 16 August 2010 EPA, 2008. Environmental Justice: Basic Information. Accessed from http://www.epa.gov/compliance/basics/ejbackground.html on 31 October, 2008 FR, 2005. Revision to the Guideline on Air Quality Models: Adoption of a Preferred General Purpose (Flat and Complex Terrain) Dispersion Model and Other Revisions, Final Rule. Federal Register, pp. 68217-68261. GAO, July, 2005. EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules. GAO-05-289. Accessed from on Graham, J.D., 2007. The Evolving Regulatory Role of the U.S. Office of Management and Budget. Review of Environmental Economics and Policy 1, 171-191. Gupta, S., Van Houtven, G., Cropper, M., 1992. Paying for Permanence: An Economic Analysis of EPA's Cleanup Decisions at Superfund Sites. RAND J. Econ. 27, 563-582. Hammitt, J.K., 2000. Valuing mortality risk: theory and practice. Environmental Science & Technology 34, 1396-1400. Hanemann, M., 2008. California's New Greenhouse Gas Laws. Review of Environmental Economics and Policy 2, 114-129. Hartman, R.S., Wheeler, D., Singh, M., 1997. The cost of air pollution abatement. Appl. Econ. 29, 759-774. Heinzerling, L., Steinzor, R.I., 2004. A Perfect Storm: Mercury and the Bush Administration, Part II. Environmental Law Reporter 34, 10485-10497. http://yosemite.epa.gov/sab%5Csabproduct.nsf/4128007E7876B8F0852573760058A978/$File/sab-08-001.pdf http://yosemite.epa.gov/sab%5Csabproduct.nsf/4128007E7876B8F0852573760058A978/$File/sab-08-001.pdf http://www.epa.gov/compliance/basics/ejbackground.html 33 Karvosenoja, N., Johansson, M., 2003. Cost curve analysis for SO2 and NOx emission control in Finland. Environmental Science & Policy 6, 329-340. Kilmont, Z., Amann, M., Cofala, J., 2000. Estimating costs for controlling emissions of volatile organic compounds (VOC) from stationary sources. International Institute for Applied Systems Analysis, Austria. Accessed from http://www.iiasa.ac.at/Admin/PUB/Documents/IR-00-051.pdf on 18 February 2011 Krupnick, A., 2007. Mortality-risk valuation and age: stated preference evidence. Review of Environmental Economics and Policy 1, 261. Mariam, Y., Barre, M., 1996. VOCs’s cost functions in the design of emission abatement strategies. MPRA Paper No. 658. Accessed from on Minkler, M., Vasquez, V.B., Tajik, M., Petersen, D., 2008. Promoting Environmental Justice Through Community-Based Participatory Research: The Role of Community and Partnership Capacity. Health Education & Behavior 35, 119. Morello-Frosch, R., Pastor, M., Sadd, J., 2001. Environmental Justice and Southern California's" Riskscape": The Distribution of Air Toxics Exposures and Health Risks Among Diverse Communities. Urban Affairs Review 36, 551. Noonan, D.S., 2008. Evidence of Environmental Justice: A Critical Perspective on the Practice of EJ Research and Lessons for Policy Design. Social Science Quarterly 89, 1153-1174. NRC, 2004. Air quality management in the United States. National Academies Press, Washington, D.C. O’Neil, S.G., 2007. Superfund: Evaluating the Impact of Executive Order 12898. Environmental Health Perspectives 115, 1087. http://www.iiasa.ac.at/Admin/PUB/Documents/IR-00-051.pdf 34 Petersen, D., Minkler, M., Vasquez, V.B., Baden, A.C., 2006. Community-Based Participatory Research as a Tool for Policy Change: A Case Study of the Southern California Environmental Justice Collaborative. Review of Policy Research 23, 339-354. Post, E., McCubbin, D., Belova, A., Huang, J., Frey, N., 2009. Methodology for Distributional Benefit Analysis of a National Air Quality Rule. Report Prepared for EPA/NCEE by Abt Associates. Accessed from http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0520- 01.pdf/$file/EE-0520-01.pdf on 10 February 2011 Ringquist, E.J., Clark, D.H., 1999. Local Risks, States' Rights, and Federal Mandates: Remedying Environmental Inequities in the US Federal System. Publius: The Journal of Federalism 29, 73. Ringquist, E.J., Clark, D.H., 2002. Issue definition and the politics of state environmental justice policy adoption. International Journal of Public Administration 25, 351-389. Rousseau, S., Proost, S., 2005. Comparing environmental policy instruments in the presence of imperfect compliance–A case study. Environ. Resource Econ. 32, 337-365. Sexton, K., 1997. Sociodemographic aspects of human susceptibility to toxic chemicals: Do class and race matter for realistic risk assessment? Environmental Toxicology and Pharmacology 4, 261-269. Su, J.G., Larson, T., Baribeau, A.M., Brauer, M., Rensing, M., Buzzelli, M., 2007. Spatial Modeling for Air Pollution Monitoring Network Design: Example of Residential Woodsmoke. Journal of the Air & Waste Management Association 57, 893-900. UWF, 2011. Partnership for Environmental Research and Community Health (PERCH). Accessed from http://uwf.edu/cedb/perch.cfm on 11 February 2011 http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0520-01.pdf/$file/EE-0520-01.pdf http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0520-01.pdf/$file/EE-0520-01.pdf http://uwf.edu/cedb/perch.cfm 35 Vajjhala, S., 2007. Building Community Capacity? Mapping the Scope and Impacts of the EPA Environmental Justice Small Grants Program. Resources for the Future. Accessed from on van Houtven, G., Cropper, M.L., 1996. When is a life too costly to save? The evidence from US environmental regulations. J. Environ. Econ. Manage. 30, 348-368. Williams, A., 2007. Louisville 2005: STAR Adopted. Accessed from http://www.louisvilleky.gov/APCD/STAR/ on 16 April 2007 Zhu, Y., Hinds, W.C., Kim, S., Sioutas, C., 2002. Concentration and Size Distribution of Ultrafine Particles Near a Major Highway. Journal of the Air & Waste Management Association 52, 1032-1042. http://www.louisvilleky.gov/APCD/STAR/ 36 Table 1 Details of Cost Function Parameters Used in Empirical Analysis Facility Source Pollutants Emitted Cost Parameters ija ijb IP Bleaching Line Vent Acetaldehyde 5303579 (1230) -0.019 (0.0001) Pulping System Vent Formaldehyde, Acetaldehyde, Benzene 27600000 (2.17e+06) -0.005 (0.0013) GP Boiler Formaldehyde, Acetaldehyde, Benzene 755887 (48729) -0.083 (0.013) Boiler Formaldehyde, Acetaldehyde, Benzene 755887 (48729) -0.083 (0.013) Boiler Formaldehyde, Acetaldehyde, Benzene 755887 (48729) -0.083 (0.013) Boiler Nickel, Arsenic 755887 (48729) -0.083 (0.013) SO Maelic Anhydride Plant Vent Formaldehyde, Acetaldehyde, Benzene 1214368 (551409) -0.066 (0.013) AP Methylamine Plant Vent Formaldehyde, Acetaldehyde, Benzene 1214368 (551409) -0.066 (0.013) SF Fugitive Emissions Acrylonitrile 25600000* -3.225* Fugitive Emissions Acrylonitrile 25600000* -3.225* Fugitive Emissions Acrylonitrile 25600000* -3.225* FG Turbine Formaldehyde, Acetaldehyde, Benzene 2248523* -6.307* SR Turbine Formaldehyde, Acetaldehyde, Benzene 2248523* -6.307* Turbine Formaldehyde, Acetaldehyde, Benzene 2248523* -6.307* TEG Reboiler Benzene 31863* -0.112* For cost parameters, numbers in parentheses indicate standard errors *Standard errors could not be estimated due to low sample size 37 Table 2 Emission Standards for Regulation at Various Spatial Resolutions (Threshold Risk = 1.0E-04; VSL=$5.5 Million) Facility Pollutant Baseline Emissions (T/Y) Optimal Emissions (TPY) Tract Block Group Block IP Acetaldehyde 5.5 149.6 149.6 196.4 Formaldehyde 8.5 0 0 0 Acetaldehyde 50.9 135.1 135.1 69.3 Benzene 5.08 0 0 0 SO Formaldehyde 0.0436 1.57 1.57 7.87 Acetaldehyde 0.00575 28.6 28.6 34.9 Benzene 0.00052 9.35 9.35 15.6 SF Acrylonitrile 2.819 0.11 0.11 0.03 Acrylonitrile 5.48 0.28 0.28 0.21 Acrylonitrile 1.159 0.17 0.17 0.07 AP Formaldehyde 0.869 0 0 0 Acetaldehyde 0.073 4.25 4.25 10.7 Benzene 0.03 0 0 0 SR Formaldehyde 30.52 1.02 1.02 1.07 Acetaldehyde 2.561 1.30 1.30 1.35 Benzene 1.0405 1.10 1.10 1.15 Formaldehyde 0.01027 1.06 1.06 1.11 Acetaldehyde 0.00135 1.34 1.34 1.39 Benzene 0.000123 1.14 1.14 1.19 Benzene 1.3 0 0 0 FG Formaldehyde 78.8 1.15 1.15 1.20 Acetaldehyde 6.615 1.43 1.43 1.48 Benzene 2.687 1.23 1.23 1.28 GP Formaldehyde 0.031 14.9 14.9 18.4 Acetaldehyde 0.000006 36.3 36.3 39.8 Benzene 0.00087 21.1 21.1 24.5 Formaldehyde 0.00098 24.2 24.2 27.0 Acetaldehyde 0.0000002 45.6 45.6 48.4 Benzene 0.000028 30.4 30.4 33.1 Formaldehyde 0.00228 37.8 37.8 40.2 Acetaldehyde 0.0000004 59.2 59.2 61.6 Benzene 0.0000621 44.0 44.0 46.4 Nickel 0.4095 0 0 0 Arsenic 0.438 0 0 0 38 Table 3 Emission Standards for Regulation at Various Spatial Resolutions (Threshold Risk = 1.0E-05; VSL=$5.5 Million) Facility Pollutant Baseline Emissions (TPY) Optimal Emissions (TPY) Census Tract Block Group Block IP Acetaldehyde 5.5 112.0 113.9 96.9 Formaldehyde 8.5 0 0 0 Acetaldehyde 50.9 0 0 0 Benzene 5.08 0 0 0 SO Formaldehyde 0.0436 0 0 0 Acetaldehyde 0.00575 17.5 17.0 16.4 Benzene 0.00052 0 0 0 SF Acrylonitrile 2.819 0 0 0 Acrylonitrile 5.48 0.06 0.06 0.03 Acrylonitrile 1.159 0 0 0 AP Formaldehyde 0.869 0 0 0 Acetaldehyde 0.073 0 0 0.54 Benzene 0.03 0 0 0 SR Formaldehyde 30.52 0.90 0.90 0.86 Acetaldehyde 2.561 1.2 1.19 1.14 Benzene 1.0405 0.99 0.99 0.94 Formaldehyde 0.01027 0.94 0.94 0.94 Acetaldehyde 0.00135 1.22 1.22 1.22 Benzene 0.000123 1.02 1.02 1.02 Benzene 1.3 0 0 0 FG Formaldehyde 78.8 1.03 1.03 1.06 Acetaldehyde 6.615 1.31 1.31 1.35 Benzene 2.687 1.11 1.11 1.14 GP Formaldehyde 0.031 6.10 5.48 3.22 Acetaldehyde 0.000006 27.5 26.9 24.6 Benzene 0.00087 12.3 11.6 9.4 Formaldehyde 0.00098 15.4 15.2 13.3 Acetaldehyde 0.0000002 36.8 36.6 34.7 Benzene 0.000028 21.6 21.4 19.5 Formaldehyde 0.00228 29.0 29.1 27.4 Acetaldehyde 0.0000004 50.4 50.5 48.8 Benzene 0.0000621 35.2 35.2 33.5 Nickel 0.4095 0 0 0 Arsenic 0.438 0 0 0 39 Table 4 Mean Individual Cancer Risk in EJ and non-EJ communities 100 in a Million Threshold 10 in a Million Threshold Resolution of Regulation Mean Individual Risk in “communities of concern” Mean Individual Risk for all other communities Mean Individual Risk in “communities of concern” Mean Individual Risk for all other communities Census Tract 12.4 (n=2446) 9.6** (n = 4701) 4.8 (n=2446) 3.6** (n = 4701) Census Block 14.1 (n=2446) 10.7** (n = 4701) 4.1 (n=2446) 3.1** (n = 4701) ** Difference in mean individual risk between communities of concern and other communities is significant at 1%; All cell values are “n in a million” units Figure 1 Spatial Distribution of Cancer Risks under Regulation at Census Tract Resolution (Cancer Risk Threshold of 100 in a Million) 41 Figure 2 Spatial Distribution of Cancer Risks under Regulation at Census Block Resolution (Cancer Risk Threshold of 100 in a Million) 42 Figure 3 Spatial Distribution of Cancer Risks under Regulation at Census Tract Resolution (Cancer Risk Threshold of 10 in a Million) 43 Figure 4 Spatial Distribution of Cancer Risks under Regulation at Census Block Resolution (Cancer Risk Threshold of 10 in a Million) Figure 5 Share of Expected Additional Annual Cancer Cases Relative to Share of Population at Tract and Block Resolution of Regulation for Whites and Nonwhites (Risk Threshold: 100 in a Million) E J P O P Nonwhites Whites 45 Figure 6 Share of Expected Additional Annual Cancer Cases Relative to Share of Population at Tract and Block Resolution of Regulation for Whites and Nonwhites (Risk Threshold: 10 in a Million) E JP O P Nonwhites Whites 
work_g26mpmcmbzcmjjkgjmvbayivqy	----	Genocide and Transitional Justice | Scholarly Publications Skip to main content Leiden University Scholarly Publications Home Submit About Select Collection All collections This collection Academic speeches Dissertations Faculty of Archaeology Faculty of Governance and Global Affairs Faculty of Humanities Faculty of Science Faculty of Social and Behavioural Sciences Leiden Journals, Conference Proceedings and Books Leiden Law School Leiden University Press Medicine / Leiden University Medical Centre (LUMC) Research output UL Search box Persistent URL of this record https://hdl.handle.net/1887/70120 Documents Download Genocide and Transitional Justice Not Applicable (or Unknown) open access Full text at publishers site In Collections This item can be found in the following collections: Institute for History Regilme, S.S. (2017) Genocide and Transitional Justice Article / Letter to editor All authors Regilme, S.S. Date 2017-02-10 Journal Human Rights Review Volume 18 Issue 1 Pages 111 - 116 DOI doi:10.1007/s12142-016-0448-9 Link http://link.springer.com/article/10.1007/s12142-016-0448-9 ©2020-2021 Leiden University A service provided by Leiden University Libraries Contact About us Recently Added Digital Collections Student Repository 
work_g4ixiyvq6zhxfjpz2pq4i6c65i	----	JSS-29-2-183-11-1133-Obioha-U-P-Tt.pmd The Nature of Justice Uwaezuoke Precious Obioha Department of Philosophy, Faculty of Arts, Olabisi Onabanjo University, P.M.B. 2002, Ago-Iwoye, Ogun State, Nigeria Telephone: +234-803-3950-443, E-mail: unclepees@yahoo.com KEYWORDS Rights. Distributive. Equality. Fairness. Difference Principle. Commutative ABSTRACT Since the Renaissance period in history initiated the act of free thinking and independent thought, there have existed and still exist various notions and perspectives over every single subject of human discourse. The concept of justice is a good example. There are shades of opinion and views concerning the nature of justice. Consequent upon this, human relationships and co-existence have become precarious as a result of wrong or inadequate conceptions of justice. This is particularly true, I believe, because justice is a basic imperative for good human relationships and co-habitation. In this paper therefore, I have tried to analyze the various conceptions of justice and the implications of such conceptions to human quest for peaceful co-existence and the full realization of human potentials. At the end I argue that justice as fairness, better than every other conception of justice, provides answers to man’s quest for a global social order requisite for human flourishing any time and any day. INTRODUCTION The need and the quest for justice in the mi- cro and macro societies and by extension the global world is increasingly becoming inevitab- le in the wake of all kinds of violence and orch- estrated social disorder and break down of law that characterize our world today. Justice cuts across and assumes a high degree of importan- ce in every sphere of human endeavor such that it is a recurrent concept, an ideal in ethics, juris- prudence, governance and every other form of human undertaking that involve human rela- tionships, management and administration. At the intrapersonal and interpersonal levels, it is a cardinal virtue such that with it global peace is guaranteed and without it our world will re- main a place of horror and discomfort. As a re- sult of this, the concept of Justice has become real and very topical in contemporary societies. Verily, we do have an insight into the reality of justice whenever somebody cheats us or our group is marginalized in the share and distribu- tion of national resources and properties. How- ever, the concept of justice cuts across national boundaries and assumes a very important place in international politics, that is, politics between and among states. There is something anthropologically and ontologically common to man and objects, cre- atures and phenomena of the universe. This co- mmonness lies in the fact that all are parts that make up the universe whose origin is a mystery which man is one. The ‘life’ of one part may not be known by the other, yet each part obeys the rhythm of nature who has judiciously assigned the respective parts their respective purposes, agenda, mission and reasons for existence. The universe’s natural order is never an accident or a coincidence. It is not only teleological, but also a milieu of commitments and avoidances. Each object of nature (both animate and inanimate) desires to herself a breathing place in the natu- ral space, herself being natural too, to fulfill her innate or natural callings, to avoid threats from other objects of nature and exercise the freedom necessary for her existence. Against this background, the history of jus- tice is as old as the history of man. This follows, therefore, that justice is natural to man. Man has never bothered himself with what justice means since it is a natural law. Instead the problematic of natural justice has bordered on its hermeneu- tics. It borders on justice calculus – what natural justice is and what it is not (Dukor 2003). Although justice has taken the coloration of cultures, philosophies, individuals and sch- ools of thought, still the bottom line of this con- cept is that it is synchronically (a historical) in terms of definition. Whatever differences there may be in the definition of justice by scholars, broadly speaking, the concept pictures integrity, impartiality, rightness and fairness as constitut- ing the notion of justice. However, more funda- mental to the concept of natural justice are nat- ural rights, which constitute the most original, inalienable and natural, form of justice. In rec- ognition to this, the ‘United Nation’ Charter on © Kamla-Raj 2011 J Soc Sci, 29(2): 183-192 (2011) Fundamental Human Rights and Nigerian Con- stitution chapter IV, outline the fundamental hu- man rights as follows: Right to life, right to dignity of human person; right to personal liberty; right to fair hearing; right to private and family life; right to freedom of thought, conscience and religion; right to peaceful assembly and association, right to freedom of movement; right to freedom from discrimination; compulsory acquisition of property; restriction on and derogation from fundamental rights and special jurisdiction of High Court and Legal aid (Nigerian Consti- tution 1989). Be that as it may, it is pertinent that we co- nceptualize justice for proper understanding and application. This we shall do through the optic of various philosophers and jurists across epochs and periods. Hence, the concept and the meaning of justice. THE CONCEPT OF JUSTICE Ogunmodede (2005) identifies justice as the oldest human virtues in the world. It is mentio- ned among the 42 virtues of “Negative Confes- sions” called the Book of the Dead (Hilliard 1987) by the Ancient Black Egyptians. The Egyp- tian term “Maat” is the oldest word for justice and it means “truth, justice and righteousness” of life among men and before the gods. In view of the various meaning to the concept of justice, Macquarrie (1967) in the “Dictionary of Ethics” opines that several meanings can be actually given to justice, namely: Justice in the oldest se- nse; justice in the narrow sense; and justice in the proper sense. In the oldest sense, as contained in the An- cient Egyptian Wisdom Literature and Old Te- stament, justice means moral “righteousness, re- ctitude or moral excellence, or perfection”. In order to be in communion with the spirit of the gods and to be found worthy on judgment day, man must live a righteous and perfect life. The oldest existing work in the world, the teachings of Ptah Hotep in this sense can be aptly describ- ed as the oldest document on past living among men. In the narrow sense, justice means conform- ity with the law. However, the limitation of this sense of justice is two-fold. One, an unjust law is no law at all. Two, conforming to written or legal law without the spirit of justice shows the inadequacy and defects of justice in the narrow sense. While in the proper sense, justice is un- derstood as the “harmonious functioning of the constituent parts in the individual, or in the state. It is in this sense that Plato understands and de- fines justice. Plato accepts justice as the basis of society and goes on to emphasize another as- pect of it. “Justice is keeping what is properly one’s own and doing one’s own job”. Plato says: Justice is the requirement we laid down at the beginning as of universal application when we founded our state, or else some form of it. We lay down; if you remember and have often repeated that in our state, one man was to do one job, he was naturally most suited for (Plato 1974). It is obvious that Plato dislikes amateurish- ness and meddlesomeness because this duo ch- aracterized the Athenian city of his time which to him brought about its ruin and decay. Plato therefore added, ‘justice consists in minding yo- ur own business and not interfering with oth- er people. Before Plato, Ptah-Hotep in his 5th instructions or, teachings defines Maat (Justice) as the basis of good governance. He says: If you are a man who leads, a man who controls the affairs of many, then, seek the most perfect way of performing your responsibility so that your conduct will be blameless. Great is Maat (truth, justice, righteousness). It is everlasting. Maat has been unchanging since the time of Asar. To create obstacle to the following of laws is to open a way to a condition of violence. The transgressor of laws is puni- shed; although the greedy person overlooks this. Baseness may obtain riches; yet crime never lands its waves on the shore. In the end, only Maat lasts. Man says: Maat is my father’s ground (Hilliard 1987). In another place in the 19th instruction, he defines distributive justice as “rightness” or “straight line” which is an antidote for the vice of greed. Greed is a grievous sickness that has no cure. There is no treatment for it. It is com- pound of all evil…. That person endures whose rule is rightness, who walks a straight line, for that person will live a legacy by such behavi- our (Hilliard 1987). Aristotle regards justice as the sovereign vi- rtue and the major purpose of the state. Justice is treating equals equally and unequals unequal- ly and in proportion to their relevant differen- ces (Aristotle 1976). He further maintains that UWAEZUOKE PRECIOUS OBIOHA184 “unjust means either lawless or unfair; therefo- re justice means either lawful or just”. Howev- er, if positive law theory is anything to go by, then Aristotle’s definition of justice as confor- mity to law reduced the concept of justice to le- gality. The implication is that the concept of ju- stice could as well be replaced by legality. On the contrary, we argue that justice is also appea- led to in matters where there is no positive law. More so, it is justice that supplies the criteria of law as well as judges its justification. There- fore, justice cannot be synonymous with lega- lity since it transcends it and gives it its justifi- cation. In Plato’s Republic, Thrasymachus defines justice as “the interest of the stronger”. Thrasy- machus is portrayed as the sophist who asserted that injustice is to be preferred to the life of ju- stice. He sees nothing wrong with injustice. He goes ahead to consider the unjust to be positi- vely superior in character and intelligence. He says, “injustice pays” not at the meager level of the pick pocket, although there is profit in that too, but especially in the case of those who car- ry injustice to perfection and make themselves masters of cities and nations. According to him, “justice is pursued by simpletons and leads to weakness. He held that people should aggres- sively pursue their own interests in a virtually unlimited form of self-assertion, and thus sees justice as the interest of the stronger having be- lieved “might to be right”. Laws are made by the ruling party for its own interest and these laws define what is right meaning that what is right is the same everywhere. This reductionist concep- tion of justice goes without grave consequen- ces for human existence and global interaction. It reduces morality to brute and naked power. The effect of this in our global world is obvious and apparent. People rise against people; cities rise against cities; the powerful against the we- ak; the powerful nations always threaten the we- ak ones; dictate to them almost in all things in- cluding how they (the weak nation) should run their governments. They even (the stronger na- tions) go to the extent of choosing their rulers for them against their (the citizens of the weak nations) wish. The powerful nations do this with reckless abandon provided it serves their inter- ests-the interest of the mighty counts, that of the weak is a non issue. Imagine the implications of this in our global world. It is that of rancor, war and violation. It consequently degenerates to the state of nature of Thomas Hobbes where life is solitary, nasty, poor, brutish and short. The influence of this Thrasymachean view of justice was obvious on Thomas Hobbes who ev- en after coming out of the state of nature could not rise above “the interest of the stronger” in his civil society. His theory on what constitutes justice is contained in his major works as “De Cive” (on the citizens) 1642, “Human Nature” published together with “De Corpore political” (republication of De Cive in 1650) under the single title “Eternal Law”. For Hobbes, the in- teraction of naturally free human beings, the push and pull of efficient cause (fear of death) and final cause (desire for happiness, or a more contended life) combined to bring “state of na- ture” to the point at which the transformatory social contract was made not between the ruler and the ruled but among the people who wanted to transcend the state of nature. Hobbes’ con- tract theory confers power on one man or ass- embly of men, without which it can be enfor- ced. It is a contract made by the citizens with each other to obey such ruling power, as the majority shall choose. When they have chosen, the citizens lose all right except such as the gov- ernment may find it expedient to grant. “There is no right of rebellion, because the ruler is not bound by any contract, whereas the subjects are” (Russell 1979). According to Hobbes, the sovereign’s job is the procurement of safety for the people and by safety is meant not a bare preservation of li- fe but also all the other contentment of life wh- ich every man by lawful industry, without da- nger or hurt to the common wealth, shall acqu- ire to himself. His view of political authority makes the sovereignty of the ruler inviolable and thus his “Leviathan” could be a tyrant who may choose not to recognize individual freed- om and aspiration. Another philosopher or rather political the- orist who was greatly influenced by the Thrasy- machean view on justice was Niccolo Machia- velli (1469 – 1527). Though not explicitly wri- tten as a title, his thoughts on justice and the st- ate are contained in his two famous books, “The Prince” and “Discourses on the first Decade on Titus Livinus”. He started the ‘The Prince’ with a question asking how many kinds of principa- lities there are and the way in which they are acquired. What is principality? It is defined as sovereignty, territory of a prince or a prince hi- THE NATURE OF JUSTICE 185 mself. In his works, he advocates the principle where the ruler must be firm and unyielding wh- ile feigning to be virtuous. To him, it is more im- portant to retain political power than to seek to take over one. It is better for the prince to be feared than to be loved. The prince should not bother himself about morality and religion but because man is pretentiously moral and religi- ous, the prince could exploit this quality in man to his own advantage. Since morality and reli- gion make man susceptible to deceit, fickleness and feebleness, the prince can exploit this to en- hance his political gains. The Prince must be ab- ove the law and outside morality in order to co- nveniently and successfully carry out his task of unification, consolidation and influence. To be able to do this, the Prince must freely use as his tools perfidy, cruelty, murder and any other means acceptable to him. Machiavelli despises morality because for him the first law of politics is expediency and not moral consideration. He rejects meekness, patience and true justice but in their place he enthrones vitality, energy, str- ength of character, ability to achieve one’s aim, desire for fame, courage, patriotism, ability to win power and preserve it. The goal achievab- le by these means is what matters to him irre- spective of the morality or immorality of the means, thus his famous dictum: “the end justi- fies the means”. An outright opposite to the Thrasymachean view of justice is Thomas Aquinas conception of justice. Aquinas defines justice as “a perpet- ual and constant will of giving everyone his due”. In this view, the angelic doctor St Thomas Aq- uinas recognizes justice as a moral virtue rooted in the will which includes other’s welfare. This is essential because since the will necessarily seeks the good whether the good in itself or the proximate good of the individual, it would need a virtue that will make it possible for the respect of the other. Readen (1979) recognizes this con- ception of justice as one of the classical account of justice found in the institute of Justinian. The other classical account of justice is the one pr- eferred by Emmanuel Kant which was offered by a celebrated jurists Ulpian as “to live honor- ably, to injure nobody, to give every person his due”. In view of this, Kant states that every ac- tion is just in itself or in its maxim if “the free- dom of the will of each can co-exist together with the freedom of everyone according to the universal laws” (Readen 1979). Spinoza (1951) also understand justice from the Justinian view when he says, “justice is the ha- bitual rendering of everyman his lawful due, wh- ile injustice is depriving a man, under the pre- tence of legality, of what the law rightly inter- preted would allow him”. When Hegel conce- ives of justice, he conceives of man as having dignity and respect. Therefore, according to him, justice, in the sense of abstract right, is a kind of egalitarianism in which each person is respected because he is human, and exists in- dependent of the power of the state. Although he sees the justice of the state to be supreme and above the justice of the individuals, how- ever, he advocates for civil disobedience in ca- ses of unjust laws. His reason is that not all sta- tes and all laws should command obedience. According to him, a despotic government vitia- tes the law and does not deserve obedience. To support this claim, he insists that “insofar, as the state is the synthesis of particularity and uni- versality, of the family and the individual, there ought to be the preservation by the state of in- dividual liberty which the individual possesses as a member of civil society” (Stumph 1964). For Hume (1964) the concept of Distributi- ve Justice is contingent upon the economic co- nditions and needs of man. This is because of the scarcity of resources, goods and services in view of the multiplicity of human needs and wa- nts that have arisen. If such goods and services were in abundance, the concept of justice in th- eir distribution would never have occurred to anyone. He says, “What purpose makes a par- tition of goods where everyone has already mo- re than enough?” However, if the scarcity of ne- eded goods or services were so extreme that the- re is no way to prevent the majority of the po- pulation from perishing and the remainder from suffering extreme deprivation and misery, then the strict laws of justice are suspended in such a pressing emergency and give place to the str- onger motives of necessity and self-preservati- on. And whenever we can imagine such condi- tions to have always obtained, there the concept of Distributive Justice would not have risen, co- ncluded Ogunmodede (2005). From the foregoing, almost all the definitions of justice (in its proper sense) we have consid- ered point to the conclusion that justice is giving one his or her due. Although, the concept of ‘giv- ing one his or her due’ raises a fundamental pro- blem here, for instance, what determines rights UWAEZUOKE PRECIOUS OBIOHA186 and dues or what justifies claims? Is it not the individual alone that knows what is due to him or her? Even when we claim through “public interest” to know what is in the best interest of a person, often times we have misunderstood a person’s interest and thus misrepresent it. If in- dividuals are the true representatives of their in- dividual interest, how then do we know what is due to people? However, it seems that the concept of right or natural right or what is commonly called the fundamental human right has answers to this question. The place of right in the understand- ing of justice and its application cannot be over- emphasized such that the notion of justice and its applications become a mere play on words, without recognition of the concept of right. Ar- istotle is one of the outstanding proponents of natural right theory. This theory holds that na- tural right is the ultimate basis of justice. Man has right not primarily because he has received them by society, but because his nature as a hu- man being confers right upon him. The rights that are to be respected by justice primarily de- rive from the laws inherent in nature itself. Men and human communities have a natural right to well ordered existence, self-realization and pr- ogress. On a secondary level man’s rights also derive from the further determination of natur- al rights by the positive law of a community. The demands of natural right can usually be compli- ed with in different ways. For example property and inheritance rights and it is left to the comm- unity to determine in which concrete forms the- se demands shall be met with. However, posi- tive law must agree with demands of natural ri- ght as much as possible and may never contra- dict it, if it wants to be legitimate and binding. When Plato sees justice as the greatest of all virtues arising from the harmonization of the th- ree classes of the state and the three aspects of human soul, little did he know that he was lay- ing down a monumental principle that will gui- de the actions of individuals and states in gen- erations to come. Plato says: ‘justice in the state is the same as justice in the individual. It is the product of every one staying in his place and doing his task”. A proper understanding of Pla- to’s concept of justice shows that his concept of justice is more in line with the theory of justice as fairness. From the perspective of Rawls (1971), fair- ness ensures a just state. Thus, to him justice as fairness is a surer way of achieving a just social order. According to him, man is placed at the initial position of equality. They have knowle- dge of the general laws of psychology, but they are ignorant of particular facts both about them- selves and about the society in which they live. They are conceived to be self interested and ra- tional. In coming together to form a society they must agree on principles for the distribution of benefits and burdens. This agreement rests on the principle of equality both of basic rights and duties. Thus, Rawls sees justice as emanating fr- om the contractual hypothesis and it connotes nothing but fairness or more generally rightness. Curson corroborated this view when he defines justice as “the virtue which results in each per- son receiving his or her due. It is the quality of being right and fair (Adeigbo 1994). According to Rawls, to be fair in selecting the principles of justice, the possibility of bias must be removed. Fairness in his theory requi- res the more favored to agree to the type of dis- tributive rule they would prefer if they were not more favored. Rawls proposes that persons in an original position will or should agree that all social primary goods (for example, Basic liber- ties such as political freedom and freedom of choice in occupations, opportunity, income, we- alth and the bases of self-respect) are to be dis- tributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored (Rawls 1971). For him ju- stice is an issue of fairness focusing on the dis- tribution of resources and permitting an uneq- ual distribution only to the extent that the weak- est members of society benefit from that inequ- ality. According to Rawls, even if an inequality does not harm the least well off, it is unjust if it leaves them no better off than before. This em- phasizes a distributionist type of justice and a defensible presumption in favor of equality in distribution of primary goods such as wealth and income. According to Younkins (2000), in Rawls’ di- fference principle, an inequality can be advan- tageous to the person who gets the smaller sh- are because inequalities can constitute incenti- ves which increase the size of the pie to be sha- red, so that the smaller piece may be larger in absolute terms than an equal share of the smal- ler pie that would have existed in the absence of such incentives. The difference principle col- lapses to strict equality under conditions where THE NATURE OF JUSTICE 187 differences in income and other rewards have no effect on the incentives of individuals. How- ever, in the real world currently and in the fore- seeable future, greater rewards bring forth grea- ter productive efforts, thus increasing the total wealth of the economy and under the difference principle, the wealth of the least advantaged. Edwards Younkins argues that Rawls does not see the natural endowments of individuals as their making and therefore, his difference pr- inciple is an agreement to consider the distribu- tion of natural talents as a common asset and to share in the fruits of this distributions, no matter what it ends up being in this view an individual’s natural endowments are not considered to be his own property, but rather the property of society. According to Gorr (1983), this is one of the fun- damental tenets of John Rawls’ theory of justice, “that we should seek a conception of justice that nullifies the accidents of natural endowment…as counters in quest for political and economic ad- vantage…” Now what makes Rawls’ idea of ju- stice so important is that he systematically ex- presses a vision that had already underpinned a great deal of social policy, legal theory and even international relations. The goal of Rawls’ con- ception of justice is to put certain segments of society in the position that they would have been in except for some underserved and unfortunate circumstances. Furthermore, Rawlsian idea that one’s own status, endowment, and wealth are unearned is especially potent when it is combined with (1) the Kantian notion that there is no vir- tue in pursuing one’s own personal flourishing and/or (2) the guilt felt by those who are asham- ed to live in material abundance while others in the world suffer. Kant advocates abject selfless- ness and held that an action is moral only if a person performs it out of a sense of duty without regard to any personal goal, desire, motive or in- terest (Kant 1959). If a person acts to derive ben- efit, his action is amoral. Furthermore, Kant wo- uld even maintain that no moral credit would accrue to a person who gains pleasure from his charitable activities even though he did not se- ek such pleasure. In addition, so-called politic- al guilt can be defined as the belief that one be- longs to a group of people that has unjustly or unduly fortunate circumstances, endowments, or privileges. However, Rawls’ theory of justice has come under heavy criticism. Rawls has been criticiz- ed for focusing on how goods are distributed among person ‘representative’ of various posi- tions in society but ignore which individuals ha- ve which goods and how they gained possess- ion of them. Critics of Rawls argue that people hold an entitlement to what they produce or ha- ve legitimately acquired and therefore should be protected from Rawls’ proposed redistribu- tionist policies (Younkins 2000). To them the Difference Principle is an unacceptable infrin- gement on liberty in that redistributive taxation to the poor requires the immoral takings of just holdings. Rawls’ opponents contend that the ju- stness or otherwise of income or wealth distri- bution depends only on the manner in which th- at distribution came about and not the pattern of the distribution itself. Another criticism levied against Rawls theory of justice is that fairness is not the proper stan- dard of justice because the world is inherently unfair and thus unjust. There is no equality in nature; some are smarter, more talented, better looking than others. People have the freewill to either use or not use the talents nature has en- dowed them with. Therefore economic equality is a goal incompatible with nature. True justice is attained when people’s lives and property are secure and they are free to own property, order its direction, determine the purpose to which their bodies are put, engage in consensual transact- ions and relationship with others and freely pu- rsue their conception of happiness. Further, his critics argue that Rawls fail to recognize that tal- ents are not a common pool, that the aptitudes that one person enjoys in no way lessens the num- ber and magnitude of abilities that are available to another. My talent is not acquired at anybo- dy’s expense. Thus, Rawls is rebelling against reality, nature and the existence of human talent. The existence of one’s talents is neither just nor unjust – it just is. So why should those “favored by nature” be made to pay for what is not a mo- ral problem or an injustice and is not of his or her own making, his critics argue. But for the fact that whatever one acquires is not of his own making, is the more reason such acquisition should be freely distributed. For the fact that our world is already lopsided and imbalanced as a result of nature’s inequality, then there is a mo- ral burden on those so blessed to freely give to those who are not so favored. So to that extent Rawls’ argument is tenable. Even Nozick’s (1983) entitlement theory and end state based on the principle that all human beings have UWAEZUOKE PRECIOUS OBIOHA188 absolute rights to their person and to the fruits of their labor could not provide the needed de- vastation of Rawlsian justice which Nozick in- tended. Justice has been classified into commutati- ve, distributive, contributive or legal, vindictive and social justice. Commutative justice demands that the exchange of goods and services should take place according to strict equality of values. This form of justice is also called contractual ju- stice because it is based on contract. And this is why it operates mainly in commercial exchange and just regulation of prices and wages. It leaves to everyone what is his or her own by right and attributes to him or her, what he or she really is. Distributive justice regulates the relations of a community with its members. It stipulates th- at advantages and burdens be distributed in the community according to proportionate equali- ty. Since individuals and groups are not equal in their qualification, resources and dedication to the common good, aids, burdens, honors must be distributed in proportion to needs, capabili- ties and merit, that is, according to proportion- ate equality. Contributive or legal justice is concerned with the general good of the community. It requires the members of a community to comply with the just demands of law for example; social legis- lation, taxation, National Youth Service Corps (NYSC). Legal justice obliges authorities to con- tribute to the common good by appropriate la- ws. Since the common good takes precedence over private interest, legal justice demands that the common good should not be sacrificed for the private interest of the individual or for his or her convenience. Another form of justice is vindictive (or Re- tributive) justice. This is a meeting out of a pro- portionate punishment to an offender for the of- fence committed, with a view to correct such an offender. This is in response to the natural ten- dency in human beings that evil must be pun- ished and good rewarded. However, the offender should not be punished beyond what he or she deserves and he or she should not be punished as a means of vengeance. Social justice on the other hand deals with the economic well-being of social groups. It de- als with the distribution of benefits and burd- ens throughout society. On the individual level, it demands a proportionate share of the benefits of economic endeavor of social partners, that is, proportionate distribution of the fruits of their labor so that no one is cheated in any manner. On the national level, every group demands a proportionate and equitable share of the nation’s wealth among various groups. It also demands that minority groups be not neglected. On the international level, social justice demands that the relationship between nations be guided by mutual respect of every nation. It imposes an obligation on developed nations of the world so that every nation will enjoy fruits of earth, and so, fully live as human beings. However, our interest lies more on distrib- utive and social justice for these forms of just- ice better exemplify what the relationship of in- dividuals to the state, and the state to the indi- viduals should be. It also establishes what the relationship between nations should be. THE PRINCIPLES OF JUSTICE As we have principles of physics within wh- ich the laws of nature guide all natural happen- ing in the world and in so doing prevent chaos in the order of nature, in no less, do we have prin- ciples guiding human conduct and the relation- ship existing between individuals on one hand and between individuals and the state on the other hand. In the same vein, there exist principles guiding the structuralization of the society. The later principle, we call principle of justice. Den Uyl and Rasmnssen (1998) distinguish between meta normative justice and justice as a constituent virtue of one’s personal flourishing. While meta normative justice is concerned with the orderly and peaceful coordination of any pe- rson with any other, justice as a normative pri- nciples and constituent virtue of a person’s con- textual recognition and evaluation of others ba- sed on objective criteria. Normative justice is concerned with selective relationships and re- quires practical reason and discernment of dif- ferences of both persons and situation. Justice as a constituent virtue deals with individuals in more specific and personal ways than does jus- tice in a meta normative sense. The question of how persons ought to act (normative justice) and the question of how society ought to be struc- tured (meta normative justice) are separate and distinct investigation. Nature has its own imperatives. As the wo- rld is governed by principles or laws that dictate how society ought to be structured in much the THE NATURE OF JUSTICE 189 same way do natural laws dictate how bridges or buildings should be constructed. Given the nature of man and the world, we should adopt and respect a social structure that accords each person a moral space over which he has freedom to act and within which no one else may right- fully interfere. Such structure would enable per- sons to pursue happiness, peace and prosperi- ty while living with one another. Younkins has argued that “the idea of natural rights can be used to create a legal system that makes it possible for individuals to pursue happiness and carry on a virtuous life”. From the foregoing, it suffices to argue that the fundamental principle of justice is respect for free and non-aggressive choice. Both justice and morality require respect for individual free choice. A state that restricts freedom of choice violates the basic principle of justice. Justice me- ans that a person must be accountable for his own actions, entitled to the reward of his labor and responsible for the consequences of his wrong-doing. Any violation of man’s right and freedom is an act of injustice against such man (although we are aware that man’s right and free- dom are not absolute and therefore can be lim- ited). Injustice therefore involves the violation of natural rights and includes murder, assault, theft, kidnapping, enslavement, rape, fraud, un- due interference, threat and intimidation etc. As this claim holds between states and individua- ls, so also it holds between nations at the inter- national level. On the normative justice, the relationship be- tween individuals and situation should reflect Kant’s imperative that persons should be treated as an end in themselves and never as a means. It is therefore a fundamental principle and require- ment of justice that persons apart from having natural rights also have dignity, respect and self worth and should be thus treated. Any act that disrespects their dignity, respect, self-worth and humanity is injustice against them. JUSTICE AND SOCIAL ORDER Social order refers to the social system as we- ll as a scheme of relations that defines the poli- tical, economic and social roles, rights and du- ties of a people in a society (Messner 1949:149). It is a state of harmonious relationship among individuals and groups that live in a society. So- cial order involves achieving co-operation for the common good of the members of a society through balancing of conflicts of interest amo- ng individuals and between individuals and the state, to this end, Kordig (1981) stresses that so- cial order is the end result of human arrangem- ents, values, norms, regulations, ideologies and institutions that enhance the proper function- ing of the various parts of society or community. In the light of the above importance of social order to human sociality, Aluko (2000) argues that the phenomenon of social order is an indis- pensable one to human existence. It is then safe to say that the attainment of peace, self and gro- up actualization as well as the general well-be- ing of all in a social system is a function of so- cial order. But what are the minimum requirements for the attainment and sustenance of social order? We consider these imperatives to be namely: co- mmon good, personality, solidarity, respect and subsidiarity. Common good affirms society’s du- ty to ensure common justice and fairness in the relationships between individuals. Personality affirms man’s dignity expressed through real pe- rsonal freedom, self actualization and respon- sibility and the accordance of necessary rights definitive of the person. Solidarity affirms co- operative togetherness and communion of all human persons. It demands a sharing of our var- ious qualities, characteristics and talented pro- ductivities. Such allows for man’s contribution to the common good. Respect involves revere- ncing the being, life and activities of other per- sons so long as such activities are not anti-so- cial. Subsidiarity holds that in the relationship between the individual and society, the subor- dinate group should have priority over the su- perior groups. One common factor however pervades these imperatives of social order. That factor is rela- tionships amongst individuals and between in- dividuals and society. But justice as fairness is necessary for cultivation and enduring of rela- tionships. Without justice rancor, distrust and cynicism enter relationships and everything falls apart. Therefore justice to me is the basic foun- dation for social order. Every other thing neces- sary for social order can be built on it. Except for the Thrasymachean “might is ri- ght” and Machiavellian “the end justifies the means”, Justice as fairness in giving people their due or justice as fairness in treating human be- ings in their humanity; in respecting their dig- UWAEZUOKE PRECIOUS OBIOHA190 nity, right and freedom. Justice as fairness in doing what one is naturally assigned to do; st- aying in one’s duty post without undue interfer- ence and meddlesomeness. Justice as fairness in bridging the gap and the gulf between the too- powerful nations and the weak nations; justice as fairness in closing the intimidating gap be- tween the wealthy, the very wealthy nations of the world and the poor and very poor nations, is the answer for social order. When people are denied their due, the natural thing is to seek re- dress. When the redress is not achieved through dialogue and other peaceful means, they resort to violence which characterizes social disorder. The activities of the Movement for the Emanci- pation of Niger Delta of Nigeria seem a good case in point. When the most powerful nations threaten and intimidate the weak ones for no just cause just to showcase their naked powers and tech- nology, just to show the weak nations that they (the too-powerful nations) are more powerful than them and therefore should be “feared and worshiped”, the result is for the weak to device means to free themselves over time, after all no- body is a monopoly of strength and violence. Hobbes (1980) puts it more succinctly in the st- ate of nature when he said: Nature hath made men so equal, in the faculties of the body, and mind; as that though there be found one man sometimes manifestly stronger in body, or quicker mind than another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can there upon claim to himself any benefit to which another may not pretend as well as he for as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with other, that are in the same danger with himself. More so, when people experience undue in- terference in their territorial domain or even in their sovereignty as a state; and undue interfer- ence in their state policies and chosen way of governance by another state or power, experi- ence has shown that more often than not such activities have generated conflicts of interest which if not properly managed can and have led to various forms of social disorder. However, we do not claim to have exhaust- ed all there is in the nature of justice for the pe- aceful coexistence of humanity and the furth- erance of human happiness. Be that as it may, the proper sense of justice as presented here can be debated, refined and reconceptualized for the correction of human and social ills in the global order. CONCLUSION In this paper, we focused mainly on the na- ture of justice, concept of justice and the prin- ciples of justice. We saw that there is a rhythm in nature which both human and non- human ob- jects follow. We also saw that following from this rhythm, justice is natural to man and there- fore to deprive man justice is to deprive him of his humanity. Although there are differences in the definition of justice by scholars, however, broadly speaking, we pictured impartiality, in- tegrity, rightness and fairness as constituting the right notion of justice. We also identified as more fundamental to the concept of natural justice, na- tural rights which constitutes the most original, inalienable and natural form of justice. On this note we concluded the paper by advocating th- at respect to these imperatives should guide the relationships between individuals and nations whether in terms of socio-political relationships and or economic ties. This constitutes justice and will help correct human and social ills in the global order. REFERENCES Adeigbo FA 1994. Readings in Social and Political Philosophy. Vol 2. Ibadan: Claverianum Press. Aluko BA 2000. Philosophy, culture and the quest for social order in Africa. In: Kolawole Owolabi (Ed.): Issues and Problems in Philosophy. Ibadan: GROVACS Network, pp. 44-68 Aquinas Thomas 1981. Summa Theologiae. Maryland: Christian Classics. Aristotle 1976 Ethics. Trans. by JAK Thomson. England: Penguin Books Ltd. Bhandari DR Plato’s Concept of Justice, An Analysis. From <http://www.bu.edu/wcp/papers/Anci/Anci Bhan.> (Retrieved February 12, 2010). Coplestone Frederick 1964. A History of Philosophy. Volume V, Part II. New York: Image Books. Dukor Maduabuchi 2003. Justice and the principle of necessity. In: Maduabuchi Dukor (Ed.): Philosophy and Politics: Discourse on Values, Politics and Power in Africa. Lagos: Malthouse Press, pp. 41-52. Gorr Michael 1983. Rawls on natural inequality. The Philosophical Quarterly, 33: 1-26 Hilliard Asa 1987. The Teachings of Ptah Hotep. Egypt: Blackwood Press. Hobbes Thomas 1980. The Study of Human Nature. New York: Oxford University Press. Kant Immanuel 1959. Foundations of the Metaphysics of THE NATURE OF JUSTICE 191 Morals. Translated by Lewis White Beck. Indianapolis: Bobbs Merrill. Kordig R 1981. A Theory of Rights. Pacific Philosophical Quarterly, 62: 171-192. Macquarrie John 1967. Justice. In: John Macquarrie (Ed.): A Dictionary of Ethics. London: S.C.M Press, pp.183- 188. Nozick Robert 1983. Distributive Justice. In: Michael Bayles, Kenneth Henley (Eds.): Right Conduct: Theories and Applications. New York: Random House, pp. 49-57. Ogunmodede Francis 2005. What is justice. In: Pantaleon Iroegbu (Ed.): Kpim of Morality, Ethics: General, Special and Professional. Ibadan: Heinemann Educational Books, pp. 401-415. Plato 1974 The Republic. Translated by Desmond Lee. England: Penguin Books Ltd. Rearden Myles 1987. Law and Justice. In: Myles Reardden (Ed.): Society and the Rule of Law. Lagos: Heinemann Press, pp. 112-114. Russell Bertrand 1979. The History of Western Philosophy. London: George Allen and Unwin. Spinoza B. 1951. A Theologico-political Treatise. New York: Penguin Books. Stumph Enoch 1964. Philosophy: History and Problems. New York: McGraw-Hill Inc. Rawls John 1971. A Theory of Justice. Cambridge, Massachusetts: The Belknap Press of Harvard University. Uyl D, Rasmnssen N 1998. Understanding Justice. New York: Random House. Younkins Edward 2000. Justice in a Free Society. From < h t t p : / / q u e b e c o i s l i b r e . o r g / y o u n k i n s 2 7 . h t m > (Retrieved June 20, 2009). UWAEZUOKE PRECIOUS OBIOHA192 
work_gaowmrsjuranzeito25krp3uwq	----	11-Bradford.PDF Rawlsian Justice and Preferences Over Work by Wylie Bradford wbradfor@efs.mq.edu.au Abstract Rawls’s assertion that the specification of property rights over the means of production is not determined by the theory of justice is shown to rest on shaky foundations. His account of the subjective circumstances of justice, which serve as an empirical constraint on the deliberations of those in the original position, is shown to reflect neoclassical economic theory in which preferences over work are excluded from welfare analysis. As a result, those in the original position are concerned only with the distributive outcomes of the basic structure, and not at all with its form in terms of the modalities of ownership of productive assets. This in turn is shown to conflict with Rawls’s professed methodology, in which constraints are not to be placed upon the conceptions of the good held by those in the original position. There is, however, very little scope for Rawls to amend his argument on this point without compromising the integrity of the whole. Hence, there is no good reason to exclude property rights over the means of production from consideration in the liberal theory of justice. JEL Classification: A13, D63, P16 1 Introduction* An important aspect of any discussion of economic justice is the question of property rights over the means of production. The significance of the issue follows from the obvious importance of such relations for the material productivity of any given society, and for the social relations that will emerge from the economic interactions of its citizens. Given the undeniable complexity of the issues involved, it is surprising that Rawls provides a disarmingly simple answer, one that survives through the considerable transformation that takes place in his overall theory of justice. For Rawls, the theory of justice provides no guidance on the question of whether private ownership of the means of production should be one of the institutions included in the basic structure of the just society (1971, henceforth TJ, p280).1 Instead, the principles of justice are to be derived separately, treating only as basic the right to personal property, leaving the specification of property rights over the means of production to be determined by the history and traditions of the society in question. This feature of Rawls's argument, whereby history is summarily accorded priority in terms of shaping the form of the basic structure, and is apparently immune to analysis in terms of the principles of justice, is referred to as historical dominance by Bradford (2000a). An obvious implication of historical dominance is that the parties in the original position are not concerned with the form of the basic structure (at least in terms of its ‘economic’ aspect), but rather only with its distributive outcomes. That is to say, they are not concerned whether a form of either capitalism or socialism obtains. This reflects the fact that, contra rights to personal property, property rights over the means of production are not considered basic. Hence, they need not receive the constitutional protection implied by the first principle of justice as fairness. In what follows, it is shown that Rawls’s argument rests, in part, on his reliance on neoclassical economic theory, as represented by Koopmans (1957). In particular, it is the assumptions concerning preferences over work (i.e. relating to different production processes) underlying that approach that leads Rawls to affirm the conditional comparability of outcomes, the claim that any specific desired welfare outcome is achievable under any assignment of property rights over the means of production. As the parties in the original position concern themselves only with the outcomes of the basic structure, it follows that the conditional comparability of outcomes suffices to render them uninterested in the specification of property rights over productive assets. However, it is demonstrated that the irrelevance of the form of the basic structure in Rawls’s argument is intimately related to his account of the circumstances of justice, particularly the subjective circumstances. The circumstances of justice are general facts, known to those behind the veil of ignorance, the function of which is to ensure that the conjectures of those in the original position remained tied to fundamental aspects of the reality to which they are to be applied. Rawls’s account of the subjective circumstances of justice is shown to be, in effect, a restatement of the neoclassical position regarding preferences over work; the circumstances of justice, in other words, are theoretical inferences rather than facts. Thus, the exclusive focus on the outcomes of the basic structure stems from assumptions made concerning the values of the parties to the deliberations in the * The author acknowledges the benefit of comments from Geoff Harcourt, Ken Tsutsumibayashi, Ugo Pagano and Rod O’Donnell. All are resolved of responsibility for any remaining errors. 1 This is despite the fact that he acknowledges that the arrangement of the background institutions of property is one of the “moral problems of political economy “ (TJ p265) 2 original position. This is inconsistent with Rawls’s insistence that no strong assumptions are made concerning the conceptions of the good held by the agents in the original position. Hence, Rawls can avoid consideration of property rights over the means of production only by ignoring his own methodological precepts. Furthermore, it is shown that the difficulties caused by Rawls’s account of the subjective circumstances of justice cannot be avoided without significant modifications of his central argument. The Circumstances of Justice In Section 40 of TJ, Rawls suggests an interpretation of the original position that is intended to imbue the device with more philosophical weight than it would have as a simple thought experiment.2 To this end he invokes Kant on the appropriate conception and bases of moral philosophy, and relates that his own approach is an attempt to conform to, and apply, Kantian principles. Kant, according to Rawls, holds that moral philosophy is the study of the “conception and outcome” of a “suitably defined rational decision” (TJ p251). Moral principles are “legislation for a kingdom of ends” and furthermore must be “agreed to under conditions that characterize men as free and equal rational beings” (TJ p252). When persons choose principles of action that express their nature as free and equal rational beings they are acting autonomously. This is to be contrasted with heteronomous action, which stems from principles chosen on the basis of social position, natural endowments, the type of society in which the person lives or the specific things which he/she desires. Rawls contends that the deliberative stage of the original position is a mechanism for realising Kant's conception of moral philosophy; the veil of ignorance prevents the parties from choosing heteronomous principles. As a result, the principles agreed to reflect the nature of persons as free and equal rational beings, and thus permit autonomous action. Furthermore, the principles of justice derived in the deliberative stage of the original position are categorical imperatives in Kant's sense. These are rules of conduct which apply to a person “in virtue of his nature as a free and equal rational being” (TJ p253). These are to be contrasted with hypothetical imperatives, which “[direct] us to take certain steps as effective means to achieve a specific end”, where the desire for the end involved is not a necessary condition for being a rational human being (ibid). Rawls asserts that the structure of the original position ensures that the principles of justice are categorical imperatives, as the argument for the principles is not based on the assumption that the parties have any particular ends. Instead they desire only the primary goods. This desire, based on the ‘thin theory of the good’, is part of the definition of rationality; as primary goods are all-purpose means to any end whatever, it is rational to want them regardless of other desires.3 Thus, 2 Strictly speaking, Rawls’s focus in this case is on the first stage of the four-stage sequence that makes up the original position. This first stage is denoted the deliberative stage by Bradford (2000a). The purpose of the deliberative stage is the derivation of the principles of justice – it is here that the ‘veil of ignorance’ is at its thickest. Rawls labels the subsequent stages of the original position the constitutional , legislative and judicial stages. He confuses the reader somewhat by continuing to use the term ‘original position’ to denote what is here called the deliberative stage, even after he has introduced the four-stage sequence as an elaboration of the original position device. 3 The ‘thin theory of the good’ is ‘thin’ in the sense that no assumptions are made concerning what individuals actually value, or ought to value. That is, they know that they possess a conception of the good without knowing to what it refers. The thin theory of the good is examined in more detail 3 to act from the principles of justice is to act from categorical imperatives in the sense that they apply to us whatever in particular our aims are. This simply reflects the fact that no such contingencies appear as premises in their derivation (TJ p253). Finally, Rawls contends that the deliberative stage can be interpreted as the viewpoint from which the noumenal self sees the world.4 It is at this point that he introduces a significant modification of the Kantian project. An obvious problem with viewing the parties in the original position as the collection of noumenal selves is that the latter are transcendental, lacking in empirical foundation. Sandel (1982 p13) notes that it is unclear how…abstract, disembodied [subjects] could without arbitrariness produce determinate principles of justice, or how in any case the legislation of such…[subjects] would apply to actual human beings in the phenomenal world. Rawls's response is to 'constrain' the hypothetical choice situation, from which the principles of justice are derived, in such a way as to ensure a determinate outcome applicable to actual human societies.5 He achieves this by allowing a minimal amount of empirical information to be available in the deliberative stage, namely, that the parties are aware that they are subject to the circumstances of justice (TJ pp. 126-128). The circumstances of justice comprise both the subjective and the objective. The aspect of the former stressed by Rawls in TJ is that the members of society are mutually disinterested; each has his or her own conception of the good, which they consider worthy of recognition and deserving of satisfaction, but they take no interest in the interests of others.6 Thus there are competing claims made on the benefits of social subsequently. 4 The noumenal self in Kant is the self qua subject of experience, the transcendental self, given prior to its ends. As Sandel (1982 p8) has it This something further [beyond the stream of sense data], which we cannot know empirically but must nonetheless presuppose as the condition of knowing anything at all, is the subject itself. The subject is the something 'back there', antecedent to any particular experience, that unifies our diverse perceptions and holds them together in a single consciousness. It provides the principle of unity without which our self-perceptions would be nothing more than a stream of disconnected and everchanging representations, the perceptions of no one. And while we cannot grasp this principle empirically, we must presume its validity if we are to make sense of self-knowledge at all. The converse of the noumenal self is the phenomenal self: the self qua object of experience, which can be empirically known and is subject to all the laws of nature and regularities of cause and effect. 5 Rawls claims that The theory of justice…tries to present a natural procedural rendering of Kant's conception of the kingdom of ends, and of the notions of autonomy and the categorical imperative. In this way the underlying structure of Kant's doctrine is detached from its metaphysical surroundings so that it can be seen more clearly and presented relatively free from objection (TJ p264). 6 As Rawls is committed to making no restrictive assumptions about the parties' conceptions of the good, he insists that the interests of individuals need not be egoistic, but could involve “ties of sentiment and affection” which would become known once the veil of ignorance is lifted (TJ p129). It is interesting to note Rawls's strange definition of egoism, and how it relates to the concept of primary 4 cooperation. Rawls argues that if this were not the case, if society was “an association of saints agreeing on a common ideal”, then justice would be nugatory (TJ p129). It is the fact that there is conflict over the distribution of primary goods which makes justice necessary, and establishes its primacy as a virtue.7 In his later work, Rawls (1993, henceforth PL) moves away from Kantian constructivism in favour of what he calls political constructivism. The essence of the change in perspective is that the principles of justice are no longer taken to represent a comprehensive moral doctrine shared by all citizens of the well-ordered society. Rather, they are a set of principles that are modular in character, capable of being affirmed by citizens holding a wide range of comprehensive doctrines without being seen to derive their legitimacy uniquely from any particular member of that set. As such, the case for the principles cannot be based, as in TJ, on the fundamental nature of human beings, an approach Rawls considers appropriate for a moral theory. Instead, the foundations of justice as fairness must be political in nature, reflecting the reality that modern democratic states are characterised by a plurality of comprehensive doctrines. Thus, in PL, Rawls defines the subjective circumstances of justice (SCJ) as the existence of pluralism as such, delimited to reasonable pluralism in the case of a well- ordered society of justice as fairness (p66). It is the awareness of the need to produce principles of justice that are compatible with this plurality of extant basic positions that represents the empirical constraint on the deliberations of the parties in the original position. Although this account is superficially different from that provided in TJ, it is apparent that beneath the fact of pluralism lies the reality of competing claims on resources and output. For instance, those moral (or religious) doctrines that hold that other sentient creatures ought not be utilised as food for humans imply very different usage patterns for land and other natural resources to those in which meat-eating is not proscribed. Conflicting moral positions on abortion or euthanasia can likewise be represented in terms of their differing claims regarding the allocation of health and medical resources, and the form of the output resulting from such allocations. On a grander scale, religious doctrines that differ on their attitudes to the moral worth of material gain, and ethical systems that weigh competitive and cooperative behaviour differently, will involve starkly contrasting distributive claims. Indeed, a society in which pluralism did not involve competing claims over resources and output would be goods. The primary goods are all-purpose means to any ends that may figure in a conception of the good. As such, it is implied that they cannot be desired for their own sake. As wealth and income, and powers and opportunities, figure among the primary goods it follows that these will not be ends pursued by any person. Now even casual observation of most human societies seems to make nonsense of this claim. The reasoning underlying this aspect of Rawls's argument is his definition of egoism. A conception of the good is considered to be egoistic if it treats “wealth, position, and influence, and the accolades of social prestige” (ibid.) as ends. By assuming that parties in the original position are not egoistic , Rawls at one definitional stroke ensures both that no person in the just society will desire wealth, prestige and power for their own sake, and, more importantly, that the device of primary goods is meaningful. Despite Rawls's claim that he makes no restrictive assumptions about the parties' conceptions of the good, it appears that without the restrictions entailed in the definition of egoism the parties in the original position would have nothing to distribute. In other words, the argument would stall at the outset. 7 Sandel (1982) replies ingeniously to this that, given this reasoning, the removal of the circumstances which give rise to the need for justice must be a virtue of equivalent importance to justice itself (pp. 31- 2). If the existence of danger makes physical courage a prized virtue, then the eradication of danger ought to be accorded the same importance as the inculcation of bravery. Rawls does not follow this route, and treats justice as strictly a remedial virtue. In this light, those who consider Rawls an apologist for mature American welfare capitalism are provided with telling ammunition. 5 perilously close to the “association of saints” in which discussions of justice have little import. Hence, other differences notwithstanding, the accounts of the SCJ in TJ and PL can be seen to share the feature that the presence of competing claims over the fruits of social cooperation represents a constraint to which the principles of justice formulated in the original position must conform. However, the fact of competing claims is not sufficient to establish the primacy of justice as a virtue, and so Rawls marries it with the objective circumstances of justice (OCJ). The most important of these is the moderate scarcity condition. The parties in the original position know that resources are not limitless, and that “mutually advantageous arrangements”, while feasible, will not be so productive as to satisfy all demands (TJ p127). The parties in the deliberative stage are aware that, beyond the veil of ignorance, the circumstances of justice hold. The only empirical information available to them, about the society in which they will live, is what they can infer from their knowledge that the circumstances of justice apply. Hence, although the parties in the deliberative stage have complete freedom to choose whatever principles of justice they desire, they also have a desire to express their nature as rational and equal members of the intelligible realm with precisely this liberty to choose, that is, as beings who can look at the world in this way and express this perspective in their life as members of society. They must decide, then, which principles when consciously followed and acted upon in everyday life will best manifest this freedom in their community, most fully reveal their independence from natural contingencies and social accident (TJ p255). Rawls contends that justice as fairness, a “theory of human justice” which “counts among its premises…the elementary facts about persons and their place in nature”, is the conception of justice that would satisfy these conditions in the deliberative stage (TJ p257). What is the connection between Rawls's use of the circumstances of justice as the empirical lifeline to the agents in the deliberative stage, and the central theme of this paper, the contention that in Rawls's system the form of the basic structure (particularly with respect to property rights in the means of production) is subordinate in importance to the distributive outcomes thereof? The answer lies in Rawls's understanding of the circumstances of justice. To him they are facts, the most elementary and general facts about persons and social reality. However, it is clear upon reflection that the circumstances of justice are not facts at all, but are better thought of as assumptions, or even theories, bristling with important, but perhaps hidden, implications. It is these implications which effectively force the parties in the original position to disregard the form of the basic structure, leaving it to be defined in accordance with historical dominance. That the circumstances of justice are assumptions is not a problem in itself; every argument requires premises. It is Rawls's conception of the nature of his enterprise that creates the difficulties to be spelt out below. He intends that the argument for justice as fairness should be “strictly deductive” and cites theories in politics and economics(!) as evidence of the fact that fully deductive theoretical schemes can be based on assumptions about human beliefs and interests. His ultimate aim is to achieve “a kind of moral geometry” with “all the rigor which this name connotes” (TJ p121). The problem of course is that the premises of Rawls's argument are poor analogues for the axioms of geometry. The latter are simple inventions which carry little, 6 if any, implicational baggage, and the primitives involved (such as 'point' and 'line') need not necessarily map onto features of observable reality as closely as the parties in the original position are meant to be connected to actual persons.8 By contrast, it will be argued that the circumstances of justice smuggle tacit premises into the deductive scheme, premises that skew the argument towards the position where the question of whether the just society is to be capitalist, socialist, or any other kind, is of little interest or import. The SCJ imply an unacknowledged restriction on the ends of the parties in the original position, in defiance of Rawls's self-imposed methodological precepts. And the OCJ unjustifiably render the question of property rights in the means of production superfluous in the deliberative stage via undefended assumptions about the nature of technology and its relationship to the institutions of production. 9 This contention, with regard to the SCJ, will now be elucidated.10 Outcomes, Forms and Preferences It is significant that Rawls stresses the 'competing claims' aspect of the SCJ.11 This, in itself, suggests that the parties in the deliberative stage of the original position will have an overriding interest in the distribution of primary goods.12 This impression is confirmed by Rawls's account of the reasoning behind the two principles of justice, especially that of the difference principle. According to Rawls the benchmark position in the deliberative stage is one of complete equality in the distribution of primary goods (TJ p62, PL p282). From this position, departures from equality are considered, both in “organisational powers” - an undefined term - and the distribution of wealth and income (TJ p62). Where these inequalities work to the benefit of the least-advantaged representative person, they ought to be permitted.13 The extent of inequality permitted is determined by the point at which greater inequality fails to improve the lot of the least-advantaged.14 8 Euclidean geometry is a pure axiomatic system; replace the geometrical terms consistently in the postulates with nonsense syllables and the system still 'works' in that all the conclusions are logically valid. If 'persons' is replaced by 'booyangs' throughout TJ or PL, the result is morass of pointless verbiage. It is the fact that his argument is intended to be in some way descriptive, and applicable to the world, which makes Rawls's endeavour something different in kind from pure axiomatic systems like geometry. 9 An interesting case concerns the objective circumstances, and the assumption of moderate scarcity. On what basis is this known to be true? Reflection on the history of human societies seems to imply that an imbalance between demands and the extent of the social product is the norm, but is this to be taken therefore as an enduring 'fact' about all societies past, present and future? Why must it be true that scarcity will prevail? This 'fact' is in reality an inductive argument with no particular claim to universal truth. This observation does not commit us to the Utopian proposition that scarcity definitely can be eliminated, but rather it points to the fact that Rawls bases his “moral geometry ” not on facts per se, but, in this case, on an argument taken at face value. 10 The case of the OCJ is taken up in detail by Bradford (2000a). 11 This is especially evident when he endeavours to encapsulate the meaning of the circumstances of justice. Thus, “one can say, in brief, that the circumstances of justice obtain whenever mutually disinterested persons put forward conflicting claims to the division of social advantages under conditions of moderate scarcity” (TJ p128), and, “justice is the virtue of practices where there are competing interests and where people feel entitled to press their rights on each other” (TJ p129). 12 Rawls speaks of the basic structure distributing primary goods, but it is clear that this is true only of a subset (TJ p62). Rights and liberties are part of the 'skeleton' of the basic structure, being guaranteed to all via the constitution and just legislation. Thus the distributive aspect of the basic structure comprises the mechanics of wealth and income distribution, and the means whereby powers and opportunities (the worth of liberty) are shared out. Clearly the former is the most important with respect to discussions of the difference principle, and therefore to the central theme of this paper. 13 Rawls ties the welfare of the least-advantaged to that of all other groups in society by means of the 7 When turning to a more detailed discussion of this point, Rawls acknowledges that the meaning of a departure from distributional equality being to 'everyone's advantage' is open to several interpretations (TJ p65). He therefore considers a variety of interpretations of the Second Principle (TJ pp. 65-83). The common thread running through all of these is what Rawls calls the “principle of efficiency” (TJ pp. 67-68). This is none other than the familiar concept of Pareto optimality, suitably modified to apply to the basic structure rather than the allocation of a stock of commodities among a group of individuals. The system of Natural Liberty is the libertaria n model of society. With careers open to those with the talent and desire to strive for them, the distribution of wealth, income and authority is determined by the principle of efficiency, in the context of a free market system, and the result deemed just. The system of Liberal Equality is an attempt to counter the moral arbitrariness of Natural Liberty by insisting on fair, and not simply formal, equality of opportunity in the pursuit of social positions. In this way the contingencies of social fortune are countered, and the resulting Pareto optimal distribution reflects the underlying distribution of natural abilities. The system of Democratic Equality combines fair equality of opportunity with the difference principle. In effect, the just distribution is that Pareto optimum which satisfies first the condition that it has been achieved through fair equality of opportunity, and second that the expectations of the least-advantaged representative person are maximised.15 Rawls obviously concludes that this interpretation is to be preferred and presented to the parties in the deliberative stage. Thus, in line with the 'competing claims' aspect of the SCJ, the reasoning for the principles of justice is based squarely on consideration of the distribution of primary goods, and not at all on the manner in which they are to be produced. The underlying reason for this is straightforward: Rawls assumes that the parties in the deliberative stage accept the Pareto principle as the yardstick by which to judge the efficiency of social and economic arrangements (TJ p67). Pagano (1985) demonstrates convincingly that modern general equilibrium theory, and thus its associated welfare economics, relies on the assumption that work assumption of chain connection (TJ pp. 81-82). This principle entails that, at least over a certain range, the welfare of the various socioeconomic 'groups' (from 'best-off' to 'worst-off') does not display mutual independence. Specifically, anything that improves the situation of the worst-off can be relied upon to do the same for the better-off, and vice versa . As a result, departures from the complete-equality benchmark can be considered either to everyone's advantage or not, depending upon their effect on the least-advantaged. Barry (1973 pp. 110-11) labels chain connection “a sort of living fossil, a coelacanth among ideas ” and notes that it instantly knocks the bottom out of most possible issues concerning the distribution of desirable but scarce resources of the kind which have given an edge to political dispute in the past few millennia. Rawls explicitly declines to examine the likelihood that chain connection will, or does, hold (ibid.). 14 Rawls acknowledges the index-number problem associated with assessing the welfare of the least- advantaged based on different 'baskets' of primary goods (TJ pp. 93-5). What he does not comment on, however, is exactly how the parties in the deliberative stage know that an unequal distribution impacts upon the welfare of the least-advantaged. How is it that they are aware of the mechanism through which more for some makes others better off? They have neither information about the nature of their society nor any about themselves or any other individual. They do have access to the principles of social, political and economic theory, but it is hard to see how the required inferences could be made in the absence of more detailed empirical information. 15 These are expectations of realising their conception of the good, which are dependent on the bundle of primary goods received. 8 enters the preference structure of economic agents only in regard to the amount of labour supplied by the individual, and not in relation to the nature of the tasks performed. This aspect of orthodox theory is rooted in Walras's treatment of labour whereby the labour supply of an individual is divided into two parts. One part is sold for use in the production of consumer goods or consumption services, while the remaining part is 'consumed' by the individual him(her)self. This latter part has subsequently been labelled 'leisure' (or some utility-producing 'reservation activity') and is assumed to yield utility to the individual, while that part of available labour which is dedicated to the production of consumer goods is assumed to have no impact on the welfare of the individual concerned.16 Thus the disutility of labour supply consists only of the opportunity cost of the number of hours worked in terms of foregone leisure. The use of the 'leisure device' implies that workers are indifferent to their conditions of work and the nature of the tasks they are to undertake; 8 hours working in a sewage treatment plant is therefore a no less desirable prospect than the equivalent amount of time spent working as a photographer of supermodels. Consumption goods and leisure time are the only ends desired by these agents, and work is regarded purely as a homogeneous means to these ends. Pagano demonstrates these implications more formally in the context of an orthodox resource allocation model. 17 He shows that when the social welfare function is dependent on the output vector of goods only, where leisure is a good produced by a reservation activity, technical efficiency is a necessary condition for social welfare maximisation. The optimisation problem can be broken down into two independent steps. First, purely as an engineering problem, the set of efficient vectors is identified; the quantity of manpower available to each firm is allocated among productive uses in such a way that more of one commodity can only be produced if the output of at least one other is reduced. Once this is achieved, preferences over output are considered in order to identify the efficient vector which maximises social welfare. In other words, as preferences over the organisation of production - that is, the allocation of tasks among jobs - play no part in the determination of the efficient production vectors, social welfare is invariant to the allocation of manpower within firms. This result holds both for capitalist firms and the single-firm centrally-planned economy. Under both regimes there is the possibility of rational conflict over the distribution of output, but none whatever over the organisation of production as the latter affects no individual's welfare. Now let us return to Rawls and the SCJ. If attention is focussed on the 'economic' primary goods (wealth and income) it is clear that the 'competing claims' aspect of the SCJ emphasised by Rawls is just another means of expressing the orthodox economic 16 For example, Koopmans (1957 p73n), Rawls's main reference for economic theory, acknowledges the need to introduce “artificial commodity concepts ”: “if labor is a primary input but leisure a desired commodity, one may introduce ‘man-hours ’ as a primary commodity and have its use as labor in actual production compete with its use in a ‘process’ which converts ‘man-hours ’ into an equal number of desired ‘leisure-hours ’”. 17 In Pagano's model the production function is defined over the vector of tasks. A task is understood to be a “use of manpower in production” described by a specification of the work to be done, how it is to done, and the time permitted for its execution (1985 p118). From the definition of tasks are derived the definitions of a job and a skill. The former is a subset of tasks to be performed by one unit of manpower within a particular firm, and thus represents the organisation of production within the firm. A skill is the resource endowment of an individual worker, defined as the set of tasks that the individual unit of manpower is able to perform. 9 assumption that preferences over work do not enter the social welfare function, that distribution, not production, is the prime concern. 18 This flies in the face of Rawls's insistence that he would not impose constraints on the conceptions of the good that are held (though unknown) by the parties in the deliberative stage. Apparently they are not to include the characteristics of the work they perform among the things they will value beyond the veil of ignorance. Furthermore, given that the parties must possess some kind of general awareness of the nature of human life and experience, the assumption that the quality and enjoyability of work is to be accorded no importance whatever is a strong and startling one to make.19 This is in direct conflict with Rawls's claim that the case for justice as fairness is based on “widely shared and yet weak conditions” and assumes “as little as possible” (TJ p129). Rawls appears to have flouted his own methodological prescriptions. This inconsistency notwithstanding, Rawls faces more fundamental difficulties arising out of his version of the SCJ. Pagano (op.cit.) reveals that implicit in resource allocation models which exclude preferences over work is the principle that de-skilling of jobs is conducive to the achievement of higher levels of social welfare.20 Within the framework of Pagano's model, de-skilling entails the redefinition of jobs within the production process of a firm (set of tasks to be performed) such that the number of tasks comprising at least one job is reduced, without an increase in the tasks comprising any of 18 It is fair to assume that Rawls is aware of this assumption and its role in orthodox theory, as it is mentioned at least twice in the section from Koopmans to which Rawls refers on the question of the principle of efficiency. There Koopmans notes that the optimality results of neoclassical theory require that “the satisfaction of each consumer is affected only by his own consumption and work, and not in addition by other people's consumption or by any production processes except through the fact that he contributes labor” (Koopmans 1957 p41, emphasis added). Later Koopmans reiterates that the proof of the allocative efficiency of a competitive market organisation depends in part on the assumption of the “independence of any man's [sic] preference structure from any production process ”(p53). 19 Given the history of industrial relations in the United States, marked as it is by outbreaks of violent and often fatal conflict over the organisation of production, it is a patently absurd assumption for Rawls to make. The historical record on this issue also poses some interesting questions with respect to the constitutional and legislative stages. When historical information is made available in these stages, facts of this nature, common to most industrialised countries, will presumably become known. Would we not expect this to influence any decisions regarding the ownership of the means of production? If, historically, capitalism has been characterised by violent struggles between the owners of the means of production and those whose labour they purchase, is that not a good reason to consider alternative property rights arrangements? Rawls's reliance on historical dominance implies that historical forms will be perpetuated despite past failings; at no time does he explicitly acknowledge the possibility that a wholesale change of regime may be required by the principles of justice. A more important question involves the extent to which information about individual conceptions of the good may be inferred from the historical information available in the later stages of the original position. If the parties become aware that many individuals have risked death and injury in the name of workplace reform and workers' rights, is it not reasonable to assume that they will infer, correctly, that the quality of work is an important element of the conception of the good of at leas t some persons? Once this step is taken, however, it is hard to see how the issue of the form of the basic structure would not become extremely important in the original position. More fundamentally still, once the parties have deduced that the organisation of production features in conceptions of the good, would they not consider Rawls's account of the SCJ to be incomplete and inaccurate? As the SCJ are one of the empirical constraints on the deliberative stage, this situation would necessitate a revaluation of the principles of justice in light of the new information. 20 As Pagano explains, this idea is rooted in pre-neoclassical thought. Gioia argued that a detailed division of labour would yield savings on training time, and thus be of benefit to society as a whole. Babbage maintained that the 'master manufacturer' could, assuming wages proportional to the skill requirements of jobs, realise cost savings by breaking complex and demanding tasks down into skilled and unskilled components. James Mill held that the Babbage principle should be extended to society as a whole in order to enhance social welfare through increased production of consumption goods. 10 the remaining jobs. As de-skilling enlarges the set of employable skills in an economy, it eases skill constraints and permits an increase in output from given manpower inputs. Given a social preference structure defined over goods only, this implies that de-skilling can only increase social welfare, or at least leave it unchanged (Pagano 1985 pp. 122- 126). Since the set of feasible output vectors for an individual firm remains feasible after de-skilling, while new vectors may be attainable, the process of de-skilling cannot decrease profits. Pagano states that the conclusion that can be derived from the resource allocation model is that the internal allocation of manpower will be organised by a profit-maximising manager according to the criterion that the de-skilling of jobs is never disadvantageous and that such an organisation of manpower is consistent with the aim of improving social welfare (ibid.). Moving beyond pure economic theory, these conclusions are also supported strongly by the labour process theory literature, particularly Braverman (1974). Braverman focuses on the implications of Taylorism, or 'scientific management' as an extension of the Gioia-Babbage principle. He isolates three main principles of Taylorism - the dissociation of the labour process from the skills of the workers, the separation of the conception and execution of tasks, and the use of management's knowledge of the productive process to plan and control production in a stepwise process - and argues that their widespread implementation in the capitalist mode of production reflects the necessity of control over the labour process under capitalism. Control is necessary if capitalists are to realise the potential of purchased labour power, impose their will within the social relations of production, and lower production costs (increase profits) by rendering labour more homogeneous. He concludes that the proliferation of Tayloristic control mechanisms has resulted in a destruction of all-round skills and the degradation of work. Braverman updates Marx's analysis of the labour process by examining the degradation of work in the history of twentieth-century industrialisation. As much of the labour process literature is also based extensively on historical information - for example, Marglin (1974) - the conclusions therein would presumably become known in the legislative stage, when the decision regarding the ownership of the means of production is meant to be made. Since the conclusions reached are scarcely flattering to capitalism, it would seem that Rawls is required to explain why historical dominance holds in the face of such information. If historical material of this nature is to be excluded from the legislative stage, Rawls must explain the criteria that differentiate 'acceptable' facts about the past from those that are 'unacceptable'. Without such explanations, Rawls's conclusions seem to be ultimately little more than an elaborate expression of his personal beliefs. Thompson (1989) notes that many within the literature on labour process theory have criticised what they see as the inexorable trend toward de-skilling implied by Braverman. 21 He acknowledges the importance of national differences in the development of the labour process (particularly with respect to the Japanese experience), the impact of flexible specialisation and the associated trend toward multiskilling and the recombination of intellectual and manual skills, and the incidence of both worker resistance to control and cooperation in the re-shaping of the labour process. 21 For example, see the papers collected in Wood (1982). 11 He concludes, however, by noting that the rejection of a uni-dimensional version of the Braverman thesis does not thereby negate the important conclusions of the labour process literature. When, as under capitalism, the capacity to work is utilised as a means of producing value, the logic of accumulation forces a constant revision of the labour process in order to accommodate the competition between units of capital, and the antagonism between capital and labour that characterises the capitalist mode of production. Linked to this is a control imperative; structures of control over labour are necessary if legal ownership of the means of production is to be translated into real possession. Neither of these principles imply that simple de-skilling is their only possible manifestation; capitalists will engage in flexible strategies which can incorporate re- skilling and the ceding of selected areas of responsibility and control. Overall, however, the need to retain general directive control over labour, and to satisfy the demands of accumulation, implies that both the use of workers' individual creative capacities, and attempts to dismantle hierarchical relations, must play a limited role in the capitalist labour process. The problem that the theoretical results of Pagano and labour process theory pose for Rawls concerns his account of the rationality of the parties in the original position, the so-called ‘thin theory of the good’. Rawls considers that a person's good is determined by the rational plan of life that he/she would choose with deliberative rationality from the maximal class of plans (TJ p424).22 A life-plan is seen as a hierarchy of sub-plans reflecting a procession of desires from more to less general. Although plans cover the whole of an individual's life, the details of the various sub-plans decrease the further they are away from the present.23 Rational plans are those which most efficiently match means and ends, and encompass the results of other plans (Rawls calls the latter the principle of inclusiveness). Rawls insists that the theory of the good must be 'thin', meaning that ideas of human excellences, and other specifications of what ought to be wanted, should not be incorporated into the definition of rationality. Yet without some restriction on the content of rationa l plans, Rawls's argument is in danger of collapsing into a kind of utilitarianism; the good for an individual simply becomes getting more of what he/she wants (Barry 1973 p30). In such a situation, there is no reason for the parties in the deliberative stage to focus on the primary goods as the things to be distributed. As a result, the solution to their choice problem (deciding on 22 The concept of deliberative rationality, which Rawls ascribes to Sidgwick, is in essence a state of perfect foresight with respect to the outcomes of plans. The problems associated with defining 'goodness' for parties in the original position with reference to the case where all future outcomes are known need little elaboration. The parallel with the role of perfect foresight assumptions in (much) neoclassical theory is intriguing. 23 There are interesting similarities between Rawls's device of rational plans and Koopmans's discussion of the interpretation of the competitive general equilibrium model with respect to time. Rawls has the conception of the good determined by the rational life plan that he/she would choose with deliberative rationality from the maximal class of plans (TJ p424). A life-plan is seen as a hierarchy of sub-plans reflecting a procession of desires from more to less general. Although plans cover the whole of an individual's life, the details of the various sub-plans decrease the further they are away from the present. Koopmans notes that when time is divided into successive periods and commodities dated, the choice of a consumer is in fact “a plan for future consumption extending over all periods considered”. Furthermore “[the consumer's] preference ordering is thought of as an ordering of all such plans”. Koopmans (1957 p61) admits that uncertainty is excluded from the model: “[c]onsumers choose a plan for their lifetime, in full present knowledge of their future preferences, of the time of their death, and of the place occupied in their preference structure by the resources handed on at death to their heirs”. Rawls does not acknowledge any debt to Koopmans, nor is any suggested, but it is intriguing to consider that the thin theory of the good may be based in part on some aspects of intertemporal general equilibrium theory. 12 principles of justice) is indeterminate; the argument for justice as fairness stalls at the outset. Since the parties in the deliberative stage are assumed not to know the details of their conception of the good, Rawls is forced to introduce an empirical generalisation about human psychology that is to be known in the original position, and which will imply that rationality entails desiring the primary goods. This is the Aristotelian Principle: ceteris paribus, humans enjoy the exercise of their innate and trained capacities, and this enjoyment is proportional to the extent of the capacity utilised and the degree of complexity required (TJ p414). For example, a person who can play both draughts and chess would prefer the latter. From this Rawls concludes that humans prefer a larger pattern of ends (in order to utilise capacities more intensively) and that plans will reflect this in that comprehensive plans will be preferred.24 In other words, humans have a higher-order desire to follow the principle of inclusiveness. For Rawls, the Aristotelian Principle is a theory of motivation that accounts for our major desires and preferences (TJ p428). By ordering all human activities in interdependent chains according to the principle of inclusiveness - such that the nth activity in a given chain encompasses all of the skills required for the (n-1)th - the Aristotelian Principle can be reformulated as the assertion that humans always desire to move up chains. In fact, in a manner sure to please any neo-classical economist, humans will apply their available resources (in terms of time and energy devoted to development) to moving up the chains associated with any preferred pattern of activities to the point where no benefit is to gained from rearrangement (TJ p431). The role of the Aristotelian Principle in the thin theory of the good is, according to Rawls, that it states a deep psychological fact which, in conjunction with other general facts and the conception of a rational plan, accounts for our considered judgements of value. The things that are commonly thought of as human goods should turn out to be the ends and activities that have a major place in rational plans. The principle is part of the background that regulates these judgements (TJ p432). The question of the relationship between the thin theory of the good, centred on the Aristotelian Principle, and the rationality of desiring primary goods is unclear.25 In 24 Note the difficulty associated with the fact that it is the content of rational plans (or specifically the plan which would be chosen with deliberative rationality) which defines the good for a person. What then is the basis for preference between plans? How can we make sense of the claim that comprehensive plans are 'better' than simple plans? It cannot be that they produce more 'goodness', as that would be circular. 25 Rawls himself seems undecided of the truth of the Principle and indeed whether or not it needs to be true in the context of his theory. On page 427 he claims that there is no reason to explain why it is true. After introducing some casual, anecdotal 'evidence', he concludes that the issue is unimportant for the theory of the good. On page 429 the Principle has become a tendency rather than an invariable pattern, one which could be overridden by the costs of training. Two pages later Rawls alludes to evolution to support the Principle, and holds that the important point is to illustrate its role in the formulation of rational plans given that it is true. On page 432 he makes the truth of the Principle a condition for it having a proper role in moral theory, despite having just declared that it expresses a “deep psychological fact“. He then goes on to state that even if the Principle is not universally true, the idea of rational plans as the determinants of goodness is still valid. He strengthens this claim on the next page by holding that the correctness of defining goodness in terms of rational plans does not require the truth of the Aristotelian Principle at all. In fact it is defensible on instrumental grounds as by assuming it we can explain why certain things have been recognised as goods. Moreover, it has a central role to play in the moral psychology upon which the theory of justice as fairness is based. Economists will be reminded at this point of Hicks's (1946 p84) admission that the main reason for maintaining the 13 fact, Rawls declines to make the case, claiming that the relationship is “evident enough” (TJ p434). The impression given by the arguments for goodness as rationality is that the primary goods are means to virtually all ends, and since the Aristotelian Principle implies that rational plans will be those which include the widest possible diversity of ends, it follows that rational parties in the original position would wish to secure as large an amount of primary goods for themselves as possible. Thus, as a motivational assumption, the Aristotelian Principle explains the desire for primary goods in the deliberative stage. Unfortunately, it conflicts with the implications of the economic and social theory presumed known in that stage. Given that they know humans enjoy exercising their abilities, how will the parties react to the fact that the logic of capitalist production requires the de-skilling of jobs, and thus the retardation of those skills, the work-related skills, utilised most intensively throughout a human life?26 If the Aristotelian Principle is indeed a theory of motivation that accounts for our major desires and preferences (TJ p428), why would the implications of capitalist ownership and control mechanisms, with regard to de- skilling and the maintenance of authoritarian and hierarchical relations within production, not result in the question of the organisation of production taking a prominent place in the discussions of the deliberative stage?27 This conclusion is strengthened by the psychological evidence, cited by Bowles and Gintis (1976), Ryan (1981) and Schwartz (1982), to the effect that participation in monotonous, routine activity is damaging to cognitive performance in general. Thus the process of de-skilling could be held to lead to a general deterioration in the ability of workers to exercise their capacities in any and all of the activities in which they engage.28 Awareness of this potential effect of capitalist employer behaviour represents an avenue through which the assignment of property rights over the means of production could affect the development of the “sufficient material basis for a sense of personal independence and self-respect” that Rawls holds to be essential for the development of the two moral powers (PL p298). Possession of the two moral powers is held by Rawls to be a necessary and sufficient condition for being regarded as a “full and equal member of society” with respect to questions of political justice, and thus is central to the development of self-respect, the most important of primary goods (PL p302). As such, the definition of rationality for the parties in the assumption of perfect competition is that the coherence of equilibrium theory requires it. For further criticism of the Aristotelian Principle see Barry (1973). 26 The importance of these skills is acknowledged by Rawls, at one remove, when he identifies the choice of occupation with the choice of a life-plan and conception of the sort of person to be (TJ pp. 415-16). 27 Strictly speaking, de-skilling is an outcome of profit-maximisation or some other behaviour, the outcomes of which are identical to those that obtain from profit-maximising behaviour. For this reason Rawls's reference (TJ p271n) to Vanek (1970), intended to establish the equivalence of perfect competition and perfect socialism and thus provide support for Rawls's concentration on distribution, appears to be unhelpful. Pagano (1985 p174) relates that the Ward-Vanek-Meade models of self- managed firms assume that the members of workers' cooperatives attempt to maximise income per head without reference to the utility derived from work. As a result, the self-managed firm will allocate labour, and be managed, according to the same criteria as if a profit-maximising capitalist were at the helm. However, this contention itself would appear to apply only to the ‘dehumanised’ model of Part I of Vanek (1970) where effort intensity and labour quality are assumed constant and equal. In his subsequent analysis Vanek drops these assumptions and argues that the labour-managed firm will be more responsive to the desires of its members than capital-managed firms. Although Vanek does not explicitly mention preferences over work, the effects of the democratisation of the division of labour would seem to counter Pagano’s assertion. 28 Capacities that could conceivably include those related to the second moral power – the capacity to form, revise and pursue a conception of the good. 14 deliberative stage would encompass an interest in the ownership status of the means of production. Difficulties and Remedies If this were to occur, however, Rawls's argument comes apart in a number of crucial places. First, it is unclear how the central focus on the primary goods could be justified in this context. Second, the difference principle could no longer be defined in relation to the principle of efficiency; the parties in the deliberative stage would no longer be satisfied merely with considering deviations from a benchmark of an equal distribution of primary goods, as the form of the basic structure would be an important, relevant consideration. A new method of justification is required. Third, the problems associated with the specification of the basic liberties would be intensified, as there seems to be no obvious reason to exclude social property in the means of production from the list. Yet allowing its inclusion implies that it should be incorporated into the just constitution. This would have the effect of negating Rawls's conceptual division of the basic structure into 'political' and 'economic' sections, and, more fundamentally, would undermine the priority rules of justice as fairness whereby political justice is lexically prior to equality of opportunity which is lexically prior to the justice of economic distribution. In light of these disastrous consequences, how can Rawls respond? Unfortunately, given the structure of the argument in TJ, his options are limited. Altering his account of the SCJ so as to take account of preferences over work is not a feasible option. Pagano (1985 p126-29) shows that when workers' preferences over tasks are included in the social welfare function, the manpower allocations of profit-maximising firms need not be conducive to social welfare maximisation.29 As de-skilling can now result in a decrease in social welfare, the derivation of the optimum output vector can no longer be decomposed into a two-stage procedure beginning with the isolation of efficient vectors, conceived as an engineering problem. Hence, Rawls could no longer employ the principle of efficiency in deriving the difference principle and he would have to recast his entire argument, taking into account the subsequent interest the parties in the deliberative stage would have in the organisation of production. The dilemma facing Rawls may be put as follows. If he maintains his account of the SCJ and ignores preferences over work, then the conflict between the Aristotelian Principle and the de- skilling implications of economic theory renders untenable arguments based on the principle of efficiency, as the parties will not accept simple comparisons of distributions only. If he repudiates his version of the SCJ and recognises the welfare implications of work, the principle of efficiency ceases to be operative and thus cannot be utilised in deriving the principles of justice. As the inconsistency between the SCJ and the Aristotelian Principle is at the root of Rawls's difficulties, he could utilise another principle of motivation. Although he acknowledges in PL (p203n) that other, unspecified, psychological principles could yield the same results, it is not really possible to deduce the ramifications of such a move for Rawls's system. It is worth noting, however, that in PL (pp. 203, 207) Rawls indicates 29 Thurow (1980-81) employs the concept of “psychic income ” to derive the same conclusion and argue that capitalist work organisation represents a case of market failure . In a perspicacious treatment of the issue, Sen (1975) demonstrates the problems posed for assessments of ‘efficiency’ by the existence of worker preferences relating to both tasks and alternative techniques. Albert and Hahnel (1991 p19 ) argue that tasks that are “employee empowering” in their effects will be undersupplied, and paid less than the socially optimal wage, under capitalism, thus generating a form of market failure. 15 that the Aristotelian Principle is central to the case for the goodness of the well-ordered society of justice as fairness. The link is through the exercise of the two moral powers, which are interpreted as examples of the kind of capacities to which the Aristotelian Principle refers. Hence certain key aspects of Rawls's program seem to be dependent on the particular moral psychology represented by the Aristotelian Principle. Buchanan (1982 pp. 123-124) suggests that Rawls could evade the difficulties outlined above, with respect to the SCJ, by including 'meaningful' work as one of the social bases of self-respect, the most important of the primary goods. However, this defence is unreliable for several reasons. First, Rawls holds that the definition of meaningful work is not a problem of justice (TJ p290). As such, there seems to be little scope for incorporating it into the list of primary goods. In any case, Buchanan offers no account of how the thin theory of the good, as it stands, provides a justification for considering 'meaningful' work to be a primary good. Nor does he explain how the reasoning for the principles of justice could incorporate the link to the organisation of production implicit in a definition of rationality that refers in part to a desire for 'meaningful' work. In short, Buchanan may wish to espouse a mutant form of Rawls's argument, but Rawls cannot. Second, although Rawls identifies 'meaningful' work as one of the 'human goods' (TJ p425), it is clear from the context that it is an end rather than a means.30 As such, including it among the primary goods serves only to make the thin theory of the good appreciably 'thicker', a state of affairs precluded by Rawls's methodology. Third, it seems a rather ad hoc procedure to simply enlarge the list of primary goods whenever a critic points out lacunæ in the argument. If the concept of primary goods is to be useful, then surely the list of primary goods must be a limited subset of all possible goods. If the two are coextensive, then justice as fairness becomes utilitarianism. If most goods are considered primary then the coherence of the thin theory of the good is endangered. Rawls himself is guilty of the sin of multiplying the primary goods without necessity. When replying to Musgrave (1974) on a point concerning optimal taxation, defensive goods-leisure substitutions and the institutions of the just society, Rawls (1974 p654) indicates that leisure may be included in the list of primary goods. The problem with this case is that the basic structure is held by Rawls to distribute the primary goods. If leisure is construed as a strictly private activity, as in mainstream economic theory, then it is not distributed by the major social and economic institutions, or anything else.31 However, not regarding leisure as a private activity in that sense would require attention to the organisation of production, as it is the economic institutions that will 'distribute' leisure through their impact on required work time. Finally, the link to self-respect is not as obvious as it seems on the basis of 'commonsense' psychology. For Rawls, self-respect is derived not from interpersonal experiences directly, but from knowledge of the justice of the basic structure. Hence, by securing the basic rights and liberties for all, and guaranteeing fair equality of opportunity, the just society underwrites the “essentials of persons' public recognition as free and equal citizens” (PL p203). This state of affairs secures the fundamental needs of citizens and establishes the social bases of self-respect. Clearly, there are few prospects for integrating 'meaningful' work into such a conception of self-respect. In presenting the next possible line of defence, it should be noted that Rawls is aware of the less desirable implications of the capitalist labour process, and, indeed, he feels they would be inappropriate in the just society. He declares that: 30 Rawls states elsewhere that “what men want is meaningful work in free association with others, these associations regulating their relations to one another within a framework of just institutions” (TJ p290). 31 Private in the sense that it involves a given, private ‘reservation activity’. 16 a well-ordered society does not do away with the division of labor in the most general sense. To be sure, the worst aspects of this division can be surmounted: no one need be servilely dependent on others and made to choose between monotonous and routine occupations which are deadening to human thought and sensibility. Each can be offered a variety of tasks so that the different elements of his nature find a suitable expression (TJ p529). The sentime nt is welcome, but Rawls provides no explanation as to how the monotonous jobs will be replaced by stimulating and rewarding ones in the just society. Barry (1973 pp. 163-165) is probably correct when he suggests that Rawls believes that ensuring the freedom of choice of occupation, and full employment through the stabilisation branch, will suffice to make work meaningful. If this were so, then Rawls could evade the criticisms made above. He certainly argues that, in equilibrium, the attractiveness of jobs will be equalised (TJ p305). This ties in with his partiality to the property-owning democracy of Meade (1964). Meade waxes utopian about the way in which work would become purely voluntary in such a system (exit would be costless).32 But since the characteristics of jobs are out of the control of workers it seems there is no mechanism to ensure that jobs are meaningful. 33 Such an outcome may be possible if jobs covering all conceivable combinations of tasks were available under conditions of continuous full employment. Given the difficulty of achieving the latter conditions under capitalism, and the fact that the imperatives of control and accumulation make it unlikely that all superseded production methods would coexist with their replacements, this seems a most unhelpful straw at which to clutch. Rawls's final, and most feeble, retort is methodological in character. He argues that common understanding in the original position requires bounds on the complexity of theoretical arguments permitted there (TJ p142). Although it is difficult to grade general facts on the basis of complexity, he holds that we “recognise an intricate theoretical construction” easily enough. On these grounds, he supposes that conceptions of justice which depend on simpler general facts, and which require less trawling through theoretically defined possibilities, are to be preferred. That the author of the 582 pages of argument which constitute TJ could put forward this proposition without apparent irony is, to put it mildly, quite surprising, but in any case it is somewhat hypocritical to reject the above criticisms on the ground that they require excessive theoretical manipulation. At root, the criticisms rest on aspects of the very theories that Rawls calls upon to justify his own argument. Besides, whether or not the economics of Koopmans is considered an ‘intricate theoretical construction’, it is certainly no more so than the argument for justice as fairness itself. Conclusion Ultimately, Rawls is left with no viable defence to the charge that the neglect of production in favour of distribution in his system stems from his 'competing claims' account of the SCJ, which in turn reflects the assumption of neo-classical economic theory that social welfare and technical efficiency are independent of preferences over work. The implications of the SCJ clash with the psychological premises upon which the rationality of parties in the original position is based, and thus deprive Rawls's 32 Bradford (2000b) examines the relationship between Rawls and Meade in greater detail. 33 Perhaps the orthodox model assumes that jobs, like consumption goods, have only one characteristic - in this case 'jobness'? 17 conclusions of logical support. One or the other must go, but modifying the SCJ (retreating from the 'competing claims' interpretation and taking account of preferences over the organisation of production) means ditching the principle of efficiency and therefore the argument for the principles of justice, particularly the difference principle. Thus Rawls appears committed to retaining his account of the SCJ if he is to preserve, at least superficially, the integrity of his argument. This leaves him in the awkward position of maintaining that the parties in the original position will focus on distribution, and ignore the form of the basic structure, only on the basis of a strong assumption that represents a prior constraint on possible conceptions of the good in violation of his own methodological dicta. 18 References Albert, M. and Hahmel, R. (1991) The Political Economy of Participatory Economics (Princeton, Princeton University Press). Barry, B. (1973) The Liberal Theory of Justice (Oxford, Clarendon). Bowles, S., and Gintis, H. (1976) Schooling in Capitalist America: Educational Reform and the Contradictions of Economic Life (New York, Basic Books). Bradford, W.D. (2000a) Value and Justice: Property, Economic Theory and Rawls (Doctoral Dissertation, University of Cambridge). _____ (2000b) “Rawls and Meade: Unfortunate Bedfellows?”, Macquarie Economics Research Papers 8/2000 (Sydney, Macquarie University). Braverman, H. (1974) Labor and Monopoly Capital: The Degradation of Work in the Twentieth Century (London, Monthly Review Press). Buchanan, A. (1982) Marx and Justice: The Radical Critique of Liberalism (London, Methuen). Hicks, J.R. (1946) Value and Capital: An Inquiry into Some Fundamental Principles of Economic Theory (Oxford, Clarendon Press). Koopmans, T.C. (1957) Three Essays on the State of Economic Science (New York, McGraw-Hill). Marglin, S.A. (1974) “What do Bosses Do? The Origins and Functions of Hierarchy in Capitalist Production”, Review of Radical Political Economics, 6, pp. 60-112. Meade, J.E. (1964) Efficiency, Equality and the Ownership of Property (London, Allen and Unwin). Musgrave, R.A. (1974) “Maximin, Uncertainty, and the Leisure Trade-Off”, Quarterly Journal of Economics, 88, pp. 625-32. Pagano, U. (1985) Work and Welfare in Economic Theory (Oxford, Basil Blackwell). Parkin, M. and Norbay, A.R. (1975) Contemporary Issues In Economics (Manchester, Manchester University Press). Rawls, J. (1971) A Theory of Justice (Oxford, Oxford University Press). _____ (1974) “Reply to Alexander and Musgrave”, Quarterly Journal of Economics, 88, pp. 633-55. _____ (1993) Political Liberalism (New York, Columbia University Press). Ryan, W. (1981) Equality (New York, Pantheon Books). 19 Sandel, M.J. (1982) Liberalism and the Limits of Justice (Cambridge, Cambridge University Press). Schwartz, A. (1982) “Meaningful Work”, Ethics, 92, pp. 634-46. Sen, A.K. (1975) “The Concept of Efficiency” in Parkin and Norbay (1975). Thompson, P. (1989) The Nature of Work: An Introduction to Debates on the Labour Process 2ed (London, MacMillan) Thurow, L. (1980-81) “Psychic Income: A Market Failure”, Journal of Post Keynesian Economics, 3, pp. 183-93. Vanek, J. (1970) The General Theory of Labor-Managed Market Economies (Ithaca, Cornell University Press). Wood, S. (ed) (1982) The Degradation of Work? Skill, Deskilling and the Labour Process (London, Hutchinson). 
work_gc6tzyav7jfrdmn2mgboeine7e	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221735940 Params is empty 221735940 exception Params is empty 2021/04/06-03:20:34 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221735940 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:33 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_gflym2t4z5gr7ao3ptxnuapxiq	----	untitled PAPER Justice and the NICE approach Richard Cookson Correspondence to Dr Richard Cookson, Centre for Health Economics, University of York, York YO10 5DD, UK; richard.cookson@york.ac.uk Received 5 September 2014 Revised 26 September 2014 Accepted 3 October 2014 To cite: Cookson R. J Med Ethics 2015;41:99–102. ABSTRACT When thinking about population level healthcare priority setting decisions, such as those made by the National Institute for Health and Care Excellence, good medical ethics requires attention to three main principles of health justice: (1) cost-effectiveness, an aspect of beneficence, (2) non-discrimination, and (3) priority to the worse off in terms of both current severity of illness and lifetime health. Applying these principles requires consideration of the identified patients who benefit from decisions and the unidentified patients who bear the opportunity costs. INTRODUCTION What is it to do good medical ethics? An uncharit- able reader of the philosophical medical ethics lit- erature might be forgiven for answering, ‘come up with an absurdly unrealistic example, and use it to argue for an absurdly counter-intuitive conclusion.’ This flippant remark is, of course, grossly unfair. Yet replace ‘absurdly’ with ‘appropriately’, and it describes two important virtues of ethical thinking. Unrealistic examples can help clarify our thinking by placing the essential features of an ethical problem into sharp focus. And common sense intuitions can lead us astray. Our moral psychology was shaped by evolution during millions of years of human prehistory living in small hunter-gatherer tribes. The resulting intuitions may sometimes lead us astray in today’s much larger and more techno- logically advanced societies. Rather than resting content with ‘fast thinking’ intuitions, therefore, it behoves us to engage in some ‘slow thinking’ to arrive at more considered ethical judgements.1 2 The medical ethics literature pays close attention to technological advances in medicine and how they raise new ethical challenges. However, it pays less attention to another important difference between hunter-gatherer and modern societies: size. Hunter-gather tribes rarely contained more than around 150 people—the ‘Dunbar number’, above which humans and primates find it hard to handle social relationships3—and everyone knew each other. By contrast, modern societies are vast and impersonal. National governments routinely make decisions that influence thousands, millions and in some cases even hundreds of millions of fellow citizens who do not know each other. Medical ethicists spend a lot of time discussing hypothetical examples involving a small number of identified patients. In this essay, I want to focus on population level decisions involving a large number of unidentified patients. My focus is not on clinical decisions about particular patients, but on policy decisions by healthcare managers and policymakers about the institutional, regulatory and financial environment within which such clinical decisions are made. A paradigmatic example is the National Institute for Health and Care Excellence (NICE). NICE pro- duces guidance on the use of healthcare technolo- gies within the single payer, universal and comprehensive National Health Service (NHS) in England and Wales. However, NICE has no control over the size of the tax-funded NHS budget or how local NHS organisations manage their budgets. When NICE recommends the use of a cost-increasing healthcare technology for one par- ticular group of patients, therefore, it is implicitly recommending the displacement of expenditure on unknown alternative uses of NHS money for unknown other patients. What principles of justice should govern such decisions about the allocation of scarce healthcare resources? I will sketch out the ‘NICE approach’ to this question—or, rather, my own interpretation of it—and argue that it embodies ‘good’ rather than ‘bad’ medical ethics. The starting point for NICE is the procedural justice framework that bioethicist Norman Daniels has dubbed ‘accountability for reasonableness’, with its four requirements of: (i) publicly accessible decisions and the rationales for them, (ii) reason- ableness of rationales in the sense both of giving reasons and applying relevant principles, (iii) the possibility of challenge through appeal and of revi- sion of decisions and (iv) the presence of mechan- isms to ensure that the foregoing requirements are met.4 Within this framework, NICE focuses on three substantive principles of justice: (1) cost- effectiveness, (2) non-discrimination and (3) prior- ity to the worse off.5 I will start with cost-effectiveness. COST-EFFECTIVENESS Should opportunity costs for large numbers of unidentified people be taken into account in health- care priority setting decisions? NICE thinks the answer is an unequivocal ‘yes’. It accounts for opportunity costs to unknown patients in exactly the same way that it accounts for benefits to the known patients who use the healthcare technology under consideration. It values these opportunity costs in terms of the expected impact on the length and quality of people’s lives using the ‘quality adjusted life year’ (QALY). One QALY represents 1 year of life in full health, half a QALY represents a year of life in 50% health and so on. NICE cur- rently estimates that a reduction of £20 000 pounds of NHS expenditure on unknown NHS activities benefiting unknown patients will typically Cookson R. J Med Ethics 2015;41:99–102. doi:10.1136/medethics-2014-102386 99 JME40: Good medical ethics o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /m e d e th ics-2 0 1 4 -1 0 2 3 8 6 o n 1 6 D e ce m b e r 2 0 1 4 . D o w n lo a d e d fro m http://crossmark.crossref.org/dialog/?doi=10.1136/medethics-2014-102386&domain=pdf&date_stamp=2014-12-11 http://jme.bmj.com/ http://www.instituteofmedicalethics.org/website/ http://jme.bmj.com/ have an opportunity cost of one QALY. This is not far off the current best estimate of this ‘cost per QALY threshold value’ of £18 000, based on real data on variation in NHS expenditure and outcomes between subnational administrative areas (for- merly known as ‘Primary Care Trusts’ when the data were col- lected in 2008, and now ‘Clinical Commissioning Groups’).6 By using this estimate to value opportunity costs, NICE is making the value judgement that each QALY lost by unknown NHS patients has the same value as each QALY gained by the known group of patients who use the healthcare technology under consideration. This value judgement is a straightforward corollary of the principle of cost-effectiveness that healthcare resources should be used to improve population health. Stewards of the public purse have a duty of ‘beneficence’ towards all the citizens they serve, to do as much good as possible with scarce public resources. In the context of healthcare, it seems reasonable to interpret this as a duty to improve population health. This seems to be the UK government’s interpretation since it charges both NICE and the NHS with the objective of improving popu- lation health. How should ‘population health’ be measured? The value judgement made by NICE is that units of health should simply be added up across different citizens, on the basis that ‘a QALY is a QALY is a QALY’. It is thus assumed that a year or a day or indeed an hour of life in full health has the same value, no matter who lives it. A QALY thus the same value no matter whether it is lived by a known or an unknown group of citizens, no matter whether it is seen as a gain or a loss from the refer- ence point of the current situation, and no matter how many healthy years are gained or lost in total compared with the current situation. That value judgement is illustrated in figure 1. The horizontal x-axis shows the health opportunity cost in terms of the total number of QALYs lost by unknown patients. The vertical y-axis shows the total value of those health opportunity costs, accord- ing to NICE. It is a 45° straight line, reflecting the NICE value judgement that each QALY is worth the same. Psychic numbing The NICE approach contrasts sharply with the common sense intuitions embedded in our moral psychology. Drawing on evi- dence from psychological experiments, as well as the observations of social commentators and our own everyday experience, Paul Slovic7 has described the phenomenon of ‘psy- chophysical numbing’ and its more extreme cousin of ‘psychic numbing’. The psychology evidence typically focuses on health losses framed in terms of numbers of deaths; but the same idea can be applied to any numerical unit of health loss, including QALYs. Psychophysical numbing involves diminishing marginal concern for health losses. In that case, we care a lot about a single unit of health loss, but then a bit less about the next one, a bit less still about the next one and so on. This implies that our concern for an opportunity cost of 1000 QALYs is not much greater than our concern for an opportunity cost of 1 QALY, and nowhere near 1000 times greater as the NICE approach implies. Psychic numbing is more extreme, and involves diminishing total concern for health losses, as illu- strated in figure 2. In that case, we care more about a health loss of 1 QALY to a single identified person than about a health loss of 1 QALY each to 1000 unidentified people. Figure 3 compares the NICE approach with common sense ethical intuitions. When thinking about health opportunity costs to large numbers of unknown people, our common sense Figure 1 National Institute for Health and Care Excellence’s valuation of health opportunity costs. Figure 2 Public concern for health opportunity costs under psychic numbing. Figure 3 Compassion deficit—National Institute for Health and Care Excellence (NICE) valuation versus public concern under psychic numbing. 100 Cookson R. J Med Ethics 2015;41:99–102. doi:10.1136/medethics-2014-102386 JME40: Good medical ethics o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /m e d e th ics-2 0 1 4 -1 0 2 3 8 6 o n 1 6 D e ce m b e r 2 0 1 4 . D o w n lo a d e d fro m http://jme.bmj.com/ intuitions result in what we might call a ‘compassion deficit’. We are capable of feeling a high degree of compassion about a health loss to a single identified person, but we are not capable of feeling thousands of times more compassion about health losses to thousands of unidentified people. Indeed, because our instincts evolved to feel compassion towards identifiable indivi- duals, we tend to feel more compassion for a single known indi- vidual than thousands of unidentified individuals. Crude utilitarianism? Does the NICE approach imply a crude utilitarianism that favours inhumane acts, for example, the callous neglect of severely ill patients who fail the cost-effectiveness test? Or ‘Brave New World’ style happiness pills for all, coupled with ‘Logan’s Run’ style involuntary euthanasia for the over 30s? Of course not! For one thing, QALYs measure health and longevity, not happiness. Happiness pills do not necessarily increase health and longevity—for that, you need health and longevity pills— and involuntary euthanasia would reduce longevity. So the NICE approach is not ‘utilitarian’, at least not in the classical Benthamite sense of maximising the sum total of all the happy experiences in the universe. The NICE approach is not crude, either. NICE is pluralistic about principles of justice and does not endorse the value judge- ment that sum total health impact is the only relevant ethical consideration. Cost-effectiveness is just one important consider- ation that NICE takes into account when reaching its decisions —not the only one. NICE does not set a rigid cost-effectiveness cut-off point for recommending healthcare technologies; it merely sets a cost-effectiveness range beyond which a positive recommendation requires particularly strong and careful justifi- cation through wider considerations. In line with the ‘account- ability for reasonableness’ framework described above, NICE formulates its recommendations through a deliberative process which involves diverse stakeholders and takes into account a wide range of considerations. NON-DISCRIMINATION The principle of non-discrimination acts as an ethical constraint on the principle of cost-effectiveness. Discussions about cost- effectiveness and discrimination in the medical ethics literature often focus on clinical decisions about particular individual patients. This is potentially misleading because in practice cost- effectiveness calculations based on QALYs are only ever used to inform population level decisions involving large numbers of unidentified patients. So here I want to consider a hypothetical example of potential disability discrimination that is more akin to the kinds of population level decisions made by NICE. Imagine NICE is faced with a new life extending treatment for stomach cancer that is borderline cost-effective in the full patient population. Further, imagine that the treatment has the same probability in all patents of a good biomedical response in terms of shrinking the tumour and restoring patients to their previous level of health and expected longevity. But now imagine it is not cost-effective for a subpopulation of severely disabled individuals, because their previous level of health and expected longevity are lower than average. The principle of cost-effectiveness thus suggests recommending that the treat- ment should be funded for most patients, but not for severely disabled patients. However, that would be an act of invidious discrimination against the disabled; it would generate political outrage; and it might also be contrary to European legislation on human rights. So NICE would not do it. Indeed, I doubt NICE advisory committees ever find themselves having to con- sider a cost-effectiveness argument for discriminating against the disabled, since subgroup analyses of cost-effectiveness based on severe disability are rarely if ever performed. NICE often under- takes subgroup analysis on suitable patient and treatment characteristics in pursuit of cost-effective ways of funding a par- ticular healthcare technology, but it does not strive officiously to find opportunities for disability discrimination. PRIORITY TO THE WORSE OFF Priority to the worse off in terms of severity of illness is a prin- ciple of justice that reflects policy concern to distribute health- care according to need, insofar as severity of illness is an important component of need. In pursuit of accountability, NICE has recently proposed two ways of measuring the severity or ‘burden’ of illness. First, the absolute shortfall from normal healthy life expectancy. This is the difference between the years of life in full health that the average person would expect, given their age and sex, and what the patient can expect given the severity of their disease. Second, the relative shortfall. This is the absolute shortfall expressed as a percentage of normal healthy life expectancy. Absolute shortfall tends to be larger in younger patients who have longer left to live and so will tend to suffer a larger absolute shortfall from any given disease in terms of years of healthy life lost. Importantly, NICE recognises that NHS patients who bear the health opportunity costs of its decisions may also be severely ill. So it compares severity of illness not against healthy indivi- duals with ‘zero’ severity of illness but against a benchmark severity of illness for the typical NHS patient. However, NICE has not gone so far as to specify a formula for giving greater weight to QALY gains for patients with more severe illnesses. This may be wise, given the complexity of judgements about justice and structural differences between principles of benefi- cence versus priority to the worse off.8 Instead, NICE will con- tinue to make these nuanced judgements on a case by case basis, through a deliberative process. A quite different way of defining the ‘worse off’ is in terms of lifetime health, rather than current severity of illness. Priority to the worse off in terms of lifetime health is a principle of justice that reflects policy concern to reduce social inequalities in lon- gevity and health.9 In a healthcare context, however, the prin- ciple of non-discrimination often acts as an ethical constraint against this principle. For example, the NHS might be able slightly to reduce social inequality in health by funding a treat- ment only for the poor. Yet this might seem like invidious dis- crimination against the rich. In my view, therefore, the principle of priority to those with poor lifetime health is typically more relevant in relation to healthcare decisions about improving access to and uptake of preventive healthcare, rather than deci- sions about whether to fund particular treatments. For example, this principle may be relevant in decisions about whether to locate smoking cessation clinics near affluent or deprived neigh- bourhoods, or whether to make special additional marketing and outreach efforts to encourage people from socially disad- vantaged backgrounds to attend a cancer screening programme. CONCLUSIONS I have argued that, when thinking about population level health- care decisions, opportunity costs for unidentified fellow citizens are an essential feature of the ethical landscape. Justice concerns Cookson R. J Med Ethics 2015;41:99–102. doi:10.1136/medethics-2014-102386 101 JME40: Good medical ethics o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /m e d e th ics-2 0 1 4 -1 0 2 3 8 6 o n 1 6 D e ce m b e r 2 0 1 4 . D o w n lo a d e d fro m http://jme.bmj.com/ the distribution of burdens as well as benefits. So in order to take appropriate account of justice, good medical ethics requires careful consideration of the opportunity costs of healthcare decisions and who will bear them. We need to consider the total size of those opportunity costs in order to apply the ethical principle of beneficence or cost-effectiveness. We also need to consider who will bear those opportunity costs in order to apply the ethical principle of priority to the worse off. Funding RC is funded by a Senior Research Fellowship award from the National Institute for Health Research. Competing interests None. Disclaimer The views expressed in this publication are those of the author and not necessarily those of NICE, the NHS, the National Institute for Health Research or the Department of Health. Provenance and peer review Commissioned; internally peer reviewed. REFERENCES 1 Kahneman D. Thinking, fast and slow. 1st edn. New York: Farrar, Straus and Giroux, 2011. 2 Greene JD. Moral tribes: emotion, reason, and the gap between us and them. Penguin Press, 2013. 3 Cozolino L. The neuroscience of human relationships: Attachment and the developing social brain. WW Norton & Company, 2014. 4 Daniels N. Accountability for reasonableness. BMJ 2000;321(7272):1300–1. 5 Shah KK, Cookson R, Culyer AJ, et al. NICE’s social value judgements about equity in health and health care. Health Econ Policy Law 2013;8(2):145–65. 6 Claxton K, Martin S, Soares M, et al. Methods for the estimation of the NICE cost effectiveness threshold. York: University of York, 2013. 7 Slovic P. If I look at the mass I will never act: Psychic numbing and genocide. Judgment Decis Mak 2007;2(2):79–95. 8 Broome J. Fairness versus doing the most good. Hastings Cent Rep 1994;24 (4):36–9. 9 Eyal N, Hurst SA, Norheim OF, et al. Inequalities in health: concepts, measures, and ethics. Oxford: Oxford University Press, 2013. 102 Cookson R. J Med Ethics 2015;41:99–102. doi:10.1136/medethics-2014-102386 JME40: Good medical ethics o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /m e d e th ics-2 0 1 4 -1 0 2 3 8 6 o n 1 6 D e ce m b e r 2 0 1 4 . D o w n lo a d e d fro m http://jme.bmj.com/ Justice and the NICE approach Abstract Introduction Cost-effectiveness Psychic numbing Crude utilitarianism? Non-discrimination Priority to the worse off Conclusions References 
work_ghkbrbpf5ngbrisjfydeyoac7y	----	pjn011 576..600 Chief Justice Roberts, Justice Alito, and New Federalism Jurisprudence Christopher Banks* andJohn Blakemany The Rehnquist Court returned power back to the states in rulings that scholars have dubbed ‘‘New Federalism.’’ The appointments of Chief Justice Roberts and Justice Alito invite speculation about the future direction of federalism cases in the Supreme Court. A survey of the Roberts Court’s federalism rulings discovers that the ideological pathways of new federalism depend upon Justice Kennedy’s swing vote and the effects the new appointments have on shaping voting coalitions in light of the vacancies they have filled. Although there is a reconfigured ‘‘States’ Rights Five’’ voting coalition, neither Roberts nor Alito endorses rigid viewpoints about federalism and it remains uncertain if the Court will return to the type of aggressive new federalism which arguably defined the legacy of the Rehnquist Court. It is reasonable to think the appointments of Chief Justice John G. Roberts, Jr and Associate Justice Samuel Alito would continue the progress toward new federalism jurisprudence1 in the ‘‘Roberts Court.’’ In spite of a series of rulings reaffirming federal regulation near the end of the Rehnquist Court (Nevada Department of Human Resources v. Hibbs [2003], Tennessee v. Lane [2004], Gonzales v. Raich [2005]), the Court’s sharp limits on Congress’s power to regulate state activities in U.S. v. Lopez (1995), City of Boerne v. Flores (1997), and U.S. v. Morrison (2000) are still very much intact. Although the Rehnquist Court’s singular impact in constraining the development of national public policy remains debatable (Clayton and Pickerill 2004), it is still renowned for its role in rearticulating states’ interests (Dinan 2004, 39). While early Roberts Court rulings demonstrated uneven support for states’ rights, the 2006–2007 term sheds more light on whether a conservative bloc will coalesce and aggressively protect the states in a manner reminiscent of the Rehnquist Court. In this light the change of personnel may also register another dynamic: Whether the justices purporting to favor the states are having trouble agreeing on basic anti-federalist principles, a tendency that increasingly typified later Rehnquist Court jurisprudence (Banks and Blakeman 2006). *Kent State University; E-mail: cbanks6@kent.edu yUniversity of Wisconsin-Stevens Point; E-mail: john.blakeman@uwsp.edu Publius:TheJournal of Federalism volume 38 number 3, pp.576^600 doi:10.1093/publius/pjn011 AdvanceAccess publication 24 April 2008 � TheAuthor 2008. Published by Oxford University Press on behalf of CSFAssociates: Publius, Inc. All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org. This essay surveys the Roberts Court’s federalism and highlights judicial conflicts on the bench and resulting from the new appointments. The cases denote that the ideological pathways of new federalism frequently depend upon Justice Anthony Kennedy’s swing vote, and that the new brethren are affecting precedents and internal coalitions in light of the vacancies they have filled. Chief Justice Roberts is a crucial replacement for Chief Justice Rehnquist, once described as the most important ‘‘judicial entrepreneur interested in pressing [the federalism] constitu- tional agenda’’ (Whittington 2001, 503), and who others hold responsible for igniting the ‘‘long fuse’’ for the state rights’ revival (Tushnet 2006, 255; see also Fry v. U.S.[1975]). Justice Sandra Day O’Connor’s absence is likewise critical because she was part of the five-justice coalition supporting states’ rights; and she or Justice Kennedy often provided the decisive fourth or fifth votes in limiting federal power (Claeys 2005, 792). Justice O’Connor’s minimalist judicial philosophy (Maveety 2003), along with her at times tepid support for the principles underlying new federalism (Tushnet 2003), are significant benchmarks to measure whether Justice Alito will follow her lead or, instead, drift further right and adapt the kind of rigorous orginalism defining Justice Clarence Thomas’s interest in protecting state sovereignty. Although they are part of a reconfigured ‘‘States’ Rights Five’’ voting bloc (Baker 2006, 205), the judicial record shows that neither Roberts nor Alito endorses rigid viewpoints about federalism. Thus, it is less predictable that the Court will return to the type of provocative new federalism jurisprudence epitomized by Lopez (1995) or Morrison (2000). After briefly touching upon Chief Justice Roberts’s and Justice Alito’s federalism viewpoints before joining the high court, key cases of the first two terms of the Roberts Court are analyzed, in order to detail their impact in solidifying the movement towards new federalism and the avid protection of state interests. The last section is an assessment of the impact of the new appointments in the Roberts Court. Pre-Supreme Court Federalism Positions The past judicial records, confirmation testimonies, and extra judicial writings of Chief Justice Roberts and Justice Alito reveal underlying patterns of judicial thought illustrating their approaches to federalism. At the core of each jurist’s thinking is the advocacy of judicial restraint as a means to advance structural limitations on federal power in a ‘‘dual sovereignty’’ constitutional framework. In a National Public Radio interview with Nina Totenberg on June 24, 1999, Judge Roberts defined federalism in structural terms by describing rulings invigorating states’ interests as ‘‘a healthy reminder that we’re a country that was formed by States and that we still live under a Federal system . . . The cases remind us that New Federalism Jurisprudence 577 ‘‘the States, as co-equal sovereigns, have their own sovereign powers, and that includes, as everyone at the time of the Constitutional Convention understood, sovereign immunity’’ (Committee on the Judiciary, U.S. Senate 2003b, 267). Similarly, for Alito judges ‘‘should be careful not to usurp the rightful powers of the other branches of the federal government or those of the states and their subdivisions,’’ because one of the most important safeguards of freedom is ‘‘the separation and distribution of government powers’’ (Committee on the Judiciary, U.S. Senate 1990, 650). At their confirmation hearings the chief justice and Justice Alito addressed the scope of congressional commerce regulation, but each expressed different levels of support for it. Although liberal critics argued that Roberts’s D.C. Circuit dissent in Rancho Viejo LLC v. Norton, (2003) reflected a narrow conception of commerce authority in environment cases (Fortenberry and Beck 2005, 76, 81–84), other evidence showed a healthy respect for limiting state sovereignty. In discussing Gonzales v. Raich (2005), he acknowledged the nearly conclusive weight of New Deal precedents under the commerce clause; but he also declared that U.S. v. Lopez (1995) and U.S. v. Morrison (2000) ‘‘did not junk all the cases that came before’’ (Lazarus 2006, 15). In contrast, when asked about Raich at his own hearings, Judge Alito interpreted Lopez differently by implying that it did not necessarily preserve the Court’s post-New Deal commerce clause precedents, perhaps because of his dissent as a Third Circuit judge in U.S. v. Rybar [1996] (Lazarus 2006, 29). In Rybar, Judge Alito dissented from the ruling that Congress could regulate intrastate possession of machine guns under the commerce clause. In disagreeing, Alito dismissed his colleagues’ ringing endorsement of federal power over intrastate conduct because it reduced the Lopez precedent to being ‘‘a constitutional freak’’ (Rybar 1996, 287). Essential to Roberts’s and Alitos’ commerce clause analysis is the sufficiency of congressional findings, a judicial tendency that also colors their views of Section Five (of the Fourteenth Amendment), conditional spending, and sovereignty immunity cases. As a nominee, Judge Roberts accepted few constraints on congressional commerce power so long as there is proof that the activity under review is adequately connected to interstate commerce (Committee on the Judiciary, U.S. Senate 2005, 226, 260–264, 440; Fortenberry and Beck 2005, 80–84). As Roberts explained, if judges get to the ‘‘point of reweighing congressional findings, that starts to look more like a legislative function,’’ and courts must ‘‘make sure that they’re interpreting the law and not making it’’ (Committee on the Judiciary, U.S. Senate 2005, 219). Similarly, not only did Alito testify that the judiciary must have ‘‘great respect’’ for congressional fact-finding, he also went so far as to admit that he probably would not have dissented in Rybar, if Congress had compiled findings linking the intrastate possession of machine guns 578 C. Banks and J. Blakeman to interstate commerce (Committee on the Judiciary, U.S. Senate 2006, 389). Although Judge Alito conceded that the machine gun statute might have withstood constitutional scrutiny, he further explained that: . . . neither Congress, the Executive (in the form of government lawyers who briefed and argued the case), nor the majority has adduced any appreciable empirical proof . . . . I would view this case differently if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machinegun possession . . . has a substantial effect on interstate commerce. But despite the resources at their command to investigate questions such as this, neither Congress nor any of its committees did so . . . [and] congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce . . . [but] they are lacking here (Rybar [1996], 293, quoting U.S. v. Lopez [1995]). Such commentary reveals that each justice gives great weight to empirical proof; but doing so can cut both ways and either advance or hinder state interests. Whereas heightened scrutiny of congressional fact-finding arguably protects individual rights in the states by imposing limits on legislative influence, it also may become the basis for trumping state claims to Eleventh Amendment sovereignty immunity or, alternatively, increasing federal enforcement against individual rights based on Section Five of the Fourteenth Amendment. In legal terms, if Congress expresses a clear and unequivocal intent to waive state immunity or, in Section Five cases, Congress can establish a congruence and proportionality between the exercise of federal power and the target of the regulation, the testimonies inferred that each jurist is likely to give preference to federal prerogatives. The affinity to look for empirical facts is illustrated by Judge Roberts’s confirmation discussion of Section Five abrogation of state immunity in cases alleging discrimination under the federal American with Disabilities Act, an issue in Board of Trustees of the University of Alabama v. Garrett (2001) and Tennessee v. Lane (2004). In Garrett, the Court insulated Alabama from a federal lawsuit by a discharged state employee and cancer victim alleging discrimination under the ADA’s Title I. In Lane, federal power was extended to let a paraplegic plaintiff who was denied physical access to a court sue Tennessee under the public accom- modations provision, or ADA’s Title II. In spite of the different outcomes, Roberts asserted that in both cases the Court did not substitute its policy judgment for that of Congress. Instead, it engaged in principled decision-making by focusing on whether Congress established unequivocal factual findings that state governments transgressed federal disability law and which therefore justified a waiver of state sovereign immunity (Committee on the Judiciary, U.S. Senate 2005, 420–421). New Federalism Jurisprudence 579 Thus, for Roberts, Congress may remedy anti-discrimination practices in the states under Section Five in appropriate factual circumstances. In like fashion, Judge Alito’s Third Circuit record demonstrated that the judicial line between congressional power and state immunity was drawn on the sufficiency of empirical facts. In Chittister v. Pennsylvania Department of Community and Economic Development (2000), a case involving Congress’ abrogation of Eleventh Amendment immunity under the Family Medical Leave Act (FMLA), Judge Alito looked to the Supreme Court’s precedents in Kimel v. Florida Board of Regents (2000) and City of Boerne v. Flores (1997) to strike down the FMLA on the grounds that there were no congressional findings about the prevalence of gender discrimination in medical leave policies; hence the law was incongruent and disproportionate as a remedy of state violations (Chittister 2000, 228–229). Notably, Chittister did not apply the Kimel standard, under which congressional waivers of state immunity must be unmistakably clear in the statute’s language; but the federal law failed Boerne’s congruence and proportionality test, and Judge Alito’s opinion relied heavily on the lack of legislative findings to discount Congress’s reasons for waiving state immunity. As a result, Alito’s opinion approximates his Rybar dissent because both depend a great deal on the absence of empirical proof to validate federal regulation. Before their appointments, each judge accepted Congress’s authority under the spending clause to compel states to waive their Eleventh Amendment immunity if they receive federal monies, provided there is a clear nexus between the federal law’s purpose and state spending. Roberts and Alito supported Congress’s spending power under South Dakota v. Dole (1987) to require states to fulfill conditions before they receive federal monies if it is built upon a firm foundation of congressional fact-finding (Committee on the Judiciary, U.S. Senate 2003b, 267). As a D.C. Circuit judge, Roberts endorsed Barbour v. Washington Metropolitan Area Transit Authority (2004), which held that a State entity could be sued in federal court because Congress statutorily declared its intent to condition the receipt of federal monies upon a waiver of state immunity. Although Alito’s views of congressional spending power were not detailed in any cases or during his confirmation hearings, he acknowledged Dole’s precedential value as giving Congress ‘‘very broad authority’’ over federal spending. Congress could, therefore, ‘‘attach all sorts of conditions to receipt of federal aid,’’ provided they are clear and relevant to the purposes of funding (Committee on the Judiciary, U.S. Senate 2006, 621). Also, a different Third Circuit ruling, New Jersey Payphone Association v. Town of West New York (2002), provides hints as to Judge Alito’s views on federal preemption. At issue was whether a municipality’s grant of an exclusive pay phone franchise on public rights of way is preempted by the 1996 Telecommunications Act. Although the court held the local ordinance was preempted, Judge Alito declined to 580 C. Banks and J. Blakeman reach the preemption question by reasoning it was unnecessary to do so. As he explained: The rationales behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles—the ‘great gravity and delicacy’ of judicial review . . . and principles of federalism . . . Moreover, the federalism rationale is pertinent here because we have the option of avoiding invocation of federal supremacy over local laws. Therefore, resolving this case on state-law grounds does less violence to principles of federalism and dual sovereignty (New Jersey Payphone Association 2002, 249–50). Thus, Judge Alito viewed preemption prudentially, and perhaps as a last resort when overarching federalism principles are at stake. Whereas some of Alito’s views on preemption were disclosed, Roberts’s position is hard to discern. Yet, some of his off-the-bench writings have federalism overtones that are sensitive to states’ rights, and they infer he respects justiciability requirements. Of the eleven publications Judge Roberts listed in the Senate Judi- ciary Committee Questionnaire (Committee on the Judiciary, U.S. Senate 2005, 64), two law reviews speak to the protection of individual property rights in the states in the ‘‘takings’’ and ‘‘contract clause’’ context: He advocates against strict judicial construction of constitutional text because it would diminish those rights (Roberts 1978a, 1978b). In a Wall Street Journal article, Roberts analyzed President Clinton’s appointment of Drew Days as Solicitor General and suggested that the transfer of power from Solicitor Ken Starr may lead to fewer amicus brief filings that would otherwise protect over-burdened state governments from effectively fighting street crime, preventing abortion, and stopping affirmative action (Roberts 1993a). Also, Roberts defended the Supreme Court’s strict interpretation of the standing doctrine by ‘‘recognizing that Article III [and its ‘case and controversy’ requirement] is a constraint on Congress’s power to assign matters to the federal courts’’ (Roberts 1993b, 1229). The pre-Supreme Court portraits of each jurist, moreover, may address ideological differences that they have with the justices they are replacing and with whom they are serving on the bench. For instance, Roberts has publicly distanced himself from endorsing an original or strict understanding of constitutional text (Committee on the Judiciary, U.S. Senate 2005, 298–299; Committee on the Judiciary, U.S. Senate 2003a, 57); if true, that sets him apart from Justices Scalia or Thomas. Similarly, but only if one overlooks the anti-nationalist position he took in Rybar in light of Lopez, Judge Alito’s later acknowledgement of Congress’s broad and evolutionary commerce power at his Supreme Court confirmation hearing (Committee on the Judiciary, U.S. Senate 2006, 628) tends to set him apart New Federalism Jurisprudence 581 from Justice Thomas’s originalist reading of the interstate commerce clause (which makes a distinction between commerce and other forms of economic activity). Also, whereas Justice Alito’s posture on the scope of Congress’s spending authority is less clear, Chief Justice Roberts’s inclination to defer to Congress in federal conditional spending cases may distinguish him from Justice Sandra Day O’Connor, who dissented in Dole (1987). Finally, on the question of whether the national political process can effectively safeguard the states’ interests in structural terms, it is noteworthy that Justice Alito implied in Rybar that normative limits on federal power exist outside of the political process. As a result, Justice Alito arguably does not agree with the ‘‘political safeguards’’ argument and, accordingly, he offers continuity with Justice O’Connor’s federalism jurisprudence in respect to the political safeguards approach (see Justice O’Connor’s dissents in Raich [2005], or Garcia v. San Antonio Metropolitan Transit Authority [1985]; Huhn 2006). Federalism in the Roberts Court The vagaries of Chief Justice Roberts’s and Justice Alito’s pre-Supreme Court federalism views accentuate their potential in significantly affecting the doctrinal and ideological pathways of the Roberts Court’s emerging new federalism jurisprudence. While the first two terms offer insight into the trend of several commerce clause, spending clause, and sovereign immunity cases, Massachusetts v. Environmental Protection Agency (2007) and Watters v. Wachovia Bank (2007) may be the most significant statements of the role that justiciability and preemption doctrines will play in delimiting federal power and state sovereignty. While Gonzales v. Carhart (2007) probably remains the Court’s most important political decision regulating abortion, it also had a federalism dimension because it conspicuously left unanswered whether Congress can regulate abortions in the states under the commerce clause. After briefly discussing the Massachusetts and Watters rulings, the federalism implications of Carhart are addressed. Thereafter, the inroads made by the justices in the remaining areas of federalism doctrine are synthesized. Table 1 provides a summary of significant Roberts Court federalism decisions and voting alignments. In the 5:4 ruling of Massachusetts (2007), the Court’s liberal wing, plus Justice Kennedy, granted Massachusetts standing to contest the EPA’s decision not to regulate the emission of greenhouse gases from new cars and possibly ease the problem of global warming. Justice John Paul Steven’s majority opinion reasoned that the Clean Air Act vested in Massachusetts a procedural right to challenge agency nonaction on behalf of its citizens. Chief Justice Roberts’s dissent, joined by Justices Scalia, Thomas, and Alito, countered that the case was a nonjusticiable ‘‘case or controversy’’ under Article III. Because Massachusetts did not establish a link between its harm and the agency’s failure to act, Chief Justice Roberts flatly 582 C. Banks and J. Blakeman Table 1 Roberts Court Federalism Decisions (2006–2007) Case Federalism issue Federalism implications Voting alignments U.S. v. Georgia 126 S. Ct. 877 (2006) 11th A. Sovereign Immunity; Sec. 5 of 14th A. Enforcement (not decided) Title II of American Disabilities Act abrogates state sovereign immunity 9:0 Sc, St, OC, RBG, So, K, Br, Th, Ro g Con: St, RBG Gonzales v. Oregon 546 U.S. 243 (2006) Commerce Clause U.S. Attorney General could not enforce Controlled Substances Act against physicians applying state assisted suicide law under commerce authority 6:3 K, St, OC, So, RBG, Br g Diss: Sc, Th, Ro g Diss: Th Central Va. Comm. College v. Katz 546 U.S. 356 (2006) 11th A. Sovereign Immunity Art. I Bankruptcy Clause abrogates state sovereign immunity 5:4 St, OC, RBG, So, Br g Diss: Th, Sc, K, Ro Northern Ins. Co. v. Chatham 547 U.S. 189 (2006) 11th A. and Common Law Sovereign Immunity State county could not claim 11th A. and Common Law Sovereign Immunity 9:0 Th, St, Sc, RBG, So, K, Br, Ro, Al Rapanos v. U.S. Army Corps of Engineers 126 S. Ct. 2208 (2006) Commerce Clause Congress could not regulate wetlands on private land as navigable waters in interstate commerce under Clean Water Act 4:1:4 Sc, Th, Ro, Al g Con (in result): K g Diss: St, RBG, So, Br Arlington Central School Dist Bd. v. Murphy 126 S. Ct. 2455 (2006) Spending Clause Federal Individuals with Disabilities Education Act did not allow recovery of expert fees by parents in legal action against school boards under Article I Spending Clause 6:3 Al, Sc, K, Th, Ro g Con/Diss (in part, in result): RBG g Diss: So g Diss: Br, St, So Massachusetts v. EPA 127 S. Ct. 1438 (2007) Standing of states asserting Quasi-Sovereign Interests States asserting quasi-sovereign interests in protecting citizens against ill-effects of global warming have standing to sue EPA for its decision not to regulate greenhouse gas emissions of new cars 5:4 St, K, So, RBG, Br g Diss: Ro, Sc, Th, Al continued N ew F ed eralism Ju risp ru d en ce 5 8 3 Table 1 Continued Case Federalism issue Federalism implications Voting alignments Watters v. Wachovia Bank 127 S. Ct. 1559 (2007) Preemption; 10th A.; Commerce Power Federal National Bank Act preempts state mortgage lending laws pertaining to sub- sidiary of federally-licensed banking institu- tion; and national banking regulation is within commerce authority and not barred by the Tenth Amendment 5:3 RBG, K, So, Br, Al g Diss: St, Sc, Ro g Th did not participate United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mangmt. Auth. 127 S. Ct. 1786 (2007) Dormant Commerce Clause County ordinance does not violate dormant commerce clause by requiring private haul- ers to use local publicly-owned waste facilities 6:3 Ro, Sc, So, Th, RBG, Br g Con (in part): Sc g Con (in result): Th g Diss: Al, St, K Winkelman v. Parma City School Dist. 127 S. Ct. 1994 (2007) Spending Clause Federal Individuals with Disabilities Education Act permits parents to proceed pro se in legal action against state school boards, independent of Congress’s Article I Spending Clause 7:2 K, St, So, RBG, Br, Ro, A g Diss/Con (in part): Sc, Th Note: Opinions for the Court, plurality opinions, concurring, and dissenting opinions are abbreviated, with its author identified in bold, are listed in far right column. Key: Chief Justice John Roberts (Ro); Justice John Paul Stevens (St); Justice Antonin Scalia (Sc); Justice Anthony Kennedy (K); Justice David Souter (So); Justice Clarence Thomas (Th); Justice Stephen Breyer (Br); Justice Samuel Alito (Al); Justice Ruth Bader Ginsburg (RBG); Justice Sandra Day O’Connor (OC). Source: Supreme Court of the U.S. homepage, at http://www.supremecourtus.gov (accessed October 9, 2007). 5 8 4 C . B an k s an d J. B lak em an http:// denied that states are entitled to a ‘‘special solicitude’’ in standing analysis simply because they assert a quasi-sovereign interest in protecting citizens against the specter of catastrophic rising sea levels. If anything, Roberts concluded, a State making that type of claim must satisfy a higher threshold of standing under the Court’s precedents, which require that citizens, as well as the State itself, suffer direct harm. In short, under federal law the states do not enjoy any ‘‘special rights or status’’ to request, as aggrieved litigants, judicial relief from the Environmental Protection Agency’s political decision to not regulate greenhouse gases (Massachusetts 2007, 1464). Although Justice Alito’s Third Circuit New Jersey Payphone opinion may have inferred a lukewarm endorsement of the preemption doctrine, he joined most of the Court’s liberal wing (plus Justice Kennedy) to hold in Watters v. Wachovia Bank (2007) that a subsidiary of a federally chartered bank did not have to comply with registration and auditing requirements that were a part of state, but not federal, mortgage lending laws. In contrast to Justice Ruth Bader Ginsburg’s majority opinion declaring that the lending activities of federal subsidiaries were controlled by the National Banking Act, Chief Justice Roberts and Justice Scalia joined with Justice Stevens in dissent2 to argue that nondiscriminatory state regu- lations, which do not impede federal law are immune from federal control. In that Congress did not express a ‘‘clear and manifest purpose’’ in its laws to regulate federally licensed affiliates, the dissent maintained the Court’s ruling showed less than ‘‘a healthy respect for state sovereignty’’ (Watters 2007, 1584) and diminished the ‘‘vital role state legislation plays in the dual banking system’’ (Watters 2007, 1574). Notably, in dicta, Chief Justice Roberts and Justice Scalia conceded the majority’s point that the Tenth Amendment did not constrain federal power as exercised under the commerce and elastic clauses; still, they took special note of it because it was ‘‘included in the Bill of Rights, [and that] should . . . remind the Court that its ruling affects the allocation of powers among sovereigns . . . [and] the reasons for adopting that Amendment are precisely those that undergird the well-established presumption against preemption’’ (Watters 2007 1585). Prior to Gonzales v. Carhart (2007), which upheld, 5:4, the federal Partial-Birth Abortion Ban Act, court watchers speculated about whether the justices would answer if Congress’s commerce power extended to regulating abortions in the states (Devins 2007; Pushaw 2005). At first blush, the case squarely presented the issue because the ban was explicitly based on the commerce clause and, under Gonzales v. Raich (2005), the Court implied that Congress had sweeping power to regulate activities with an economic dimension if there was a rational basis to do so. Also, the commerce issue seemed ripe for resolution for other reasons. Anti-abortion critics typically argue that abortion regulation is a province of the states. A bevy of new federalism rulings, among them U.S. v. Lopez (1995) and U. S. v. Morrison (2000), and arguably Gonzales v. Oregon (2006), and Rapanos v. U.S. Army Corps of Engineers (2006) (but decided principally on statutory grounds, and discussed shortly), New Federalism Jurisprudence 585 appeared to limit commerce authority. Also, at least three justices, Justices Scalia, Thomas, and Alito, have gone on record opposing Roe v. Wade (1973). In spite of its legal ambiguity and political ramifications, the prospect of commerce clause regulation was only briefly raised at oral argument, and the legal issue was not briefed. Accordingly, Justice Kennedy’s plurality opinion did not address it, presumably on prudential grounds. Even so, that did not stop Justice Thomas from specially observing in a brief concurrence joined by Justice Scalia that the commerce clause issue was not addressed in the briefs, a sign that those justices may want to revisit the issue but that the Chief Justice and Justice Alito might not. Commerce Clause Interpretations The Roberts Court made additional, and at times more definitive, statements about commerce clause federalism in Gonzales v. Oregon (2006), Rapanos v. U.S. Army Corps of Engineers (2006), and United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007). Without Justice Alito on the bench, in Gonzales v. Oregon (2006) Justices Anthony Kennedy and Sandra Day O’Connor joined the liberal bloc in a 6:3 decision to strike down the U.S. Attorney General’s authority under the federal Controlled Substances Act (CSA) to prevent state doctors from using drugs that assisted in patient suicide under Oregon’s Death with Dignity Act. The outcome was reached via statutory interpretation and purported to favor the states. Yet, all the justices agreed that Congress possessed commerce authority to prevent state-assisted suicide. Chief Justice Roberts, along with Justice Thomas, joined Scalia’s dissent arguing the Attorney General acted within the bounds of the statute to regulate death-producing drugs; but only Justice Thomas, in a separate dissent, questioned the inconsistency of not allowing the CSA to be used to prevent intrastate suicides in Oregon, while permitting it to stop the intrastate use of medicinal marijuana in California under Raich. In his words, ‘‘The Court’s reliance upon the constitutional principles that it rejected in Raich— albeit under the guise of statutory interpretation—is perplexing to say the least’’ (Gonzales 2006, 302). With Justice Alito confirmed and on the bench, in Rapanos v. U.S. Army Corps of Engineers (2006) the Court fractured into three groups (4:1:4) in deciding whether the U.S. Army Corps of Engineers could assert jurisdiction over state wetlands under the Clean Water Act on the grounds that ditches or man-made drains emptied into federally controlled navigable waters. Contrary to the liberal bloc’s preferences, Justice Scalia, plus Chief Justice Roberts, and Justices Thomas and Alito, denied federal jurisdiction. Justice Kennedy cast the deciding vote, but in a stand-alone concurrence did not fully embrace Scalia’s plurality rationale or the dissent’s deferential position, led by John Paul Stevens, and joined by Justices Souter, Ginsburg, and Breyer. What remained was a narrow construction of the 586 C. Banks and J. Blakeman CWA and a jurisdictional rule requiring a ‘‘significant nexus’’ between the wetlands at issue and navigable waters (Adler 2006). The fragmented outcome produced a remand, and probably created little guidance for understanding the true limits of federalism in analogous water cases; although some maintain that Justice Kennedy’s test in significant in striking a pragmatic balance between federal and state interests (Harvard Law Review Association 2006, 358). New insights—as well as additional disagreement across and between the political spectrums—came from the Court’s analysis of the so-called negative, or dormant, commerce clause in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007). There, in a 6:3 ruling by Chief Justice Roberts, federal commerce power did not void a county flow-control ordinance requiring private haulers to use local publicly owned waste facilities that charged higher ‘‘tipping’’ fees as compared to those found out-of-state. An unusual cohort of justices in the majority, namely the Chief Justice, Souter, Ginsburg, Breyer, Thomas, and Scalia, reasoned the ordinance did not discriminate against interstate commerce even though it favored local government at the expense of the private trash industry. The public interest in allowing the county flow ordinance to stand, the Court said, outweighed the interest private haulers had in minimizing their costs. For Roberts, not making a distinction between the public and private interests at stake encouraged judicial activism of the worse sort, giving the judiciary a ‘‘roving license’’ to create policies about waste regulation that ought to be decided by the democratic processes (United Haulers 2007, 1796). Yet, in separate concurrences Justice Scalia and Thomas questioned the Court’s reliance on precedents supporting the negating effect of the commerce clause on state laws and the underlying politics producing them. Whereas Scalia called it ‘‘an unjustified judicial intervention’’ (United Haulers 2007, 1798), Thomas went further by saying he would ‘‘discard’’ it altogether as an ‘‘unworkable’’ set of guidelines unjustifiably permitting the Court to usurp economic policymaking of either Congress or state governments in regulating trash disposal (United Haulers 2007, 1799). In a dissent joined by Justices Stevens and Kennedy, Justice Alito accepted the Court’s role in developing its dormant commerce clause jurisprudence but argued that the precedents themselves did not justify ‘‘an exception for discrimination in favor of a state-owned entity’’ (United Haulers 2007, 1806). That is, the distinction the Court used to favor state interests amounted to a discriminatory form of economic protectionism that runs counter to the ‘‘usual dormant Commerce Clause standards’’ prohibiting different treatment (United Haulers 2007, 1809). Although the shifting coalitions among the justices in commerce clause cases make it difficult to pin down their ideological preferences, some patterns nonetheless emerge. The dichotomous results in Oregon and Rapanos, with each going in contrary directions in accepting federal regulation over assisted suicides New Federalism Jurisprudence 587 and wetlands, are reconcilable as decisions based on statutory interpretation. In spite of the different outcomes, Chief Justice Roberts was aligned with Justices Scalia and Thomas in both cases, and Justice Alito joined that bloc in limiting federal power in Rapanos after he was confirmed. Still, the positions and signals expressed by Scalia and Thomas in all of the cases may set them apart from Roberts and Alito, for political and doctrinal reasons: (i) whereas in Carhart Scalia and Thomas hinted they might object to allowing Congress to use commerce authority to outlaw abortions, the Chief Justice and Alito chose not to speak on the issue; (ii) in Rapanos, all the justices except for Scalia and Thomas voiced support for the constitutional use of commerce power; and (iii) in United Haulers, only Scalia and Thomas questioned the underlying dormant commerce clause precedents. Spending Clause Interpretations The Individuals with Disabilities Education Act (IDEA) is legislation enacted under Congress’s spending (and Section Five of Fourteenth Amendment) authority that conditions the receipt of federal dollars for states adopting federal guidelines, which control educational intervention and related services for children with special needs. Two cases, Arlington Central School District Board v. Murphy (2006) and Winkelman v. Parma City School District (2007), identified the limits of federalism by addressing, in Arlington Central, the recovery of expert fees by parents who prevailed in a civil suit against a school board; whereas, in Winkelman, the dispute concerned if parents, acting independently apart from their children’s interests, could file an IDEA lawsuit without legal counsel. Justice Alito, writing on behalf of the Chief Justice and Justices Scalia, Kennedy, and Thomas, used Arlington Central to extract from a prior Spending Clause case, Pennhurst State School and Hospital v. Halderman (1981), a requirement that Congress must express ‘‘clear notice’’ that it intended to bind the States to the reimbursement of expert fees in setting conditions for the receipt of federal monies (Arlington Central 2006, 2459). That intent, he emphasized, was not ‘‘what a majority of the Members of both Houses intend,’’ but rather consists of the states being ‘‘clearly told’’ about the ‘‘conditions that go along with the acceptance of those funds’’ (Arlington Central 2006, 2463). In contrast, Justices Ginsburg (in a separate concurrence in the result only) united with dissenting Justices Souter, Breyer, and Stevens in contesting the creation of a new limitation on Congress’s spending power based on a clear intent rule (Arlington Central 2006, 2464, 2470). Yet, in Winkelman (2007), all the justices except two agreed with Justice Kennedy’s opinion holding that the ‘‘entire statutory scheme’’ underlying IDEA gave parents independent and enforceable rights relative to their children’s education, including the option to sue pro se (Winkelman 2007, 2000). In doing so, the Court distinguished Arlington Central and rejected the school district’s 588 C. Banks and J. Blakeman argument that Congress, under the Spending Clause, failed to give clear notice that states could be sued by parents seeking to vindicate their own child’s rights, even though ‘‘some rights repose in both the parent and the child’’ (Winkelman 2007, 2006). Justice Scalia, in a partial concurrence and dissent joined by Justice Thomas, did not address the Spending Clause argument; but they did write separately to state IDEA should not be interpreted to construct a general substantive parental right to education. Instead, for Scalia and Thomas it only let the parents proceed pro se in regards to asking for reimbursement of monies incurred in sending their kids to private school or to correct violations of their own procedural rights (Winkelman 2007, 2007). In evaluating the judicial lines drawn in the two spending cases, it remains unclear whether the decision by Chief Justice Roberts and Justice Alito to align themselves with a contextual reading of IDEA in Winkelman also implies that the law, for them, carries the type of substantive connotation that the dissent rejected. Still, it may underscore two closely related points. It may be further evidence that like-minded conservative justices fundamentally disagree on issues of statutory construction, with Justices Kennedy, Roberts, and Alito accepting what most would consider a liberal view based on statutory context and purpose. Also, Justice Scalia and Thomas’s Winkelman dissent did not address the spending clause issue—which perhaps may foreshadow they sponsor limits on Congress’s spending authority in future cases because they did not join with the rest of the Court in distinguishing the legal application of Arlington Central’s clear notice rule in Winkelman. State Sovereign Immunity Interpretations In U.S. v. Georgia (2006), a unanimous Court (without Justice Alito) construed Congress’s Fourteenth Amendment Section Five power to permit the federal American with Disabilities Act to allow a paraplegic prisoner to sue a state prison for actual unconstitutional violations pertaining to his confinement. That enforcement power, Justice Scalia’s majority opinion held, additionally abrogates state sovereign immunity under the Eleventh Amendment. In second case, predating Justice Alito’s confirmation, state immunity was likewise upheld to be validly abolished by Congress in a federal bankruptcy proceeding by a 5:4 ruling in Central Virginia Community College v. Katz (2006). The justices divided bitterly over their readings of whether the history of bankruptcy clause vested in Congress the ability to subordinate state sovereignty in the interest of securing uniformity in debtor–creditor relations among the states. Justice Stevens’ opinion, consisting of a bare majority of Justices O’Connor, Souter, Ginsburg, and Breyer, thought that it did, whereas the dissent, led by Justice Thomas and joined by Chief Justice Roberts, Scalia, and Kennedy, declared that it did not, adding that the result cannot ‘‘be justified by the text, structure, or history of our Constitution’’ (Central Virginia New Federalism Jurisprudence 589 Community College 2006, 379). The judicial conflict over the proper scope of state immunity eased with Northern Insurance Co. v. Chatham County (2006), a unanimous opinion by Justice Thomas (including Justice Alito) that held a county being sued for negligently operating a drawbridge could not assert sovereignty immunity because it was not ‘‘an arm of the state’’ when it controlled the bridge. Georgia invariably complicates the judicial lines drawn in the series of earlier Section Five rulings that at first cut back (U.S. v. Morrison [2000], Kimel v. Florida Board of Regents [2000], Board of Trustees of University of Alabama v. Garrett [2001]), but then expanded federal power in later opinions construing the scope of federal disabilities law (Nevada Department of Human Resources v. Hibbs [2003], Tennessee v. Lane [2004]). Yet, the Court’s holding may best be viewed as confined to its facts and only pertaining to actually established constitutional violations under the Fourteenth Amendment. Even with Justice Alito participating, Chatham’s effect is probably similar because the Court’s precedents barring entities that are not deemed part of state operations consistently ban claims of immunity. In light of Justice O’Connor’s departure, the more interesting ambiguity concerns the effect Justice Alito will have in subsequent litigation testing the scope and limits of Central Virginia in federal bankruptcy or analogous economic regulation, especially in the context of claims made by states to sovereign immunity. The Court’s 2007^2008 Term and Beyond Early in the 2007–2008 term, the Roberts Court decided a federalism case involving the limits of state taxation policy, plus it ruled on three other preemption cases and it resolved a rather unique appeal relating to the confluence of presidential power, international law, and state criminal justice administration. It was also scheduled to settle at least one additional dormant commerce clause case (as applied to state taxation). The cases not only help clarify the judicial lines between the justices, they also accentuate the impact of the Chief Justice and Justice Alito on new federalism jurisprudence. What the cases will not ostensibly reveal, however, is another dynamic interposed by Justice Thomas and his interpretation of the First Amendment’s Establishment Clause in religion cases with federalism dimensions. In that some states have used Justice Thomas’s interpretation in litigation, his argument and its constitutional implications are briefly outlined following a discussion of the preemption, state taxation, and international law cases. In Riegel v. Medtronic, Inc. (2008), the Court applied preemption to prohibit state common law claims challenging the safety or effectiveness of preapproved FDA medical devices. At issue was whether an injured heart patient could sue a catheter manufacturer under state tort law when the device failed in an operation in light of a federal law barring such claims. The Court, in an 8:1 ruling delivered over Justice Ginsburg’s dissent, held that the federal Medical Device Amendments (MDA) 590 C. Banks and J. Blakeman of 1976 preempts state common law claims against the manufacturers of FDA- approved medical devices. Writing for the Court, Justice Scalia reasoned that Congress clearly meant to preempt all state regulations that interfered with federal safety oversight of medical devices; but ‘‘only to the extent’’ that they are dissimilar to federal law (Riegel 2008, 1011). Thus, the MDA allows state common law claims ‘‘premised on a violation of FDA regulations; the state duties in such a case ‘parallel’ . . . the federal requirement’’ (Riegel 2008, 1011). In dissent Justice Ginsburg disagreed, and she refused to read the MDA ‘‘as an automatic bar to state common law tort claims’’ (Riegel 2008, 1019). In her view, ‘‘the purpose of Congress is the ultimate touchstone of pre-emption analysis’’ and hence the ‘‘constriction of state authority . . . was not mandated by Congress and is at odds with the MDA’s central purpose: to protect consumer safety’’ (Riegel 2008, 1013, 1020). As a result, Congress did not intend ‘‘to effect a radical curtailment of state common law suits’’ (Riegel 2008, 1013). Notably, in a partial dissent and concurrence, Justice Stevens joined the majority’s conclusion that the text of federal law barred state-based tort claims when state requirements were different; but he agreed with Justice Ginsburg that Congress could not have silently foreclosed all judicial recourse for consumers hurt by FDA-approved devises, a position that the majority embraced in the part of the opinion that Justice Stevens refused to join. In Rowe v. New Hampshire Motor Transport Association (2008), the State of Maine required licensed retailers that ship tobacco products to use a delivery service that verified recipients were of legal age to purchase tobacco. With Justices Ginsburg and Scalia filing separate concurrences, the Court held unanimously that the Federal Aviation Administration Authorization Act of 1994 (which regu- lates trucking companies, among other things) preempted Maine’s regulation. By interpreting precedent, which allowed for the preemption of state consumer- protection laws, Justice Breyer’s Opinion for the Court held Maine’s law interfered with Congress’ intent to deregulate the trucking industry and to favor free market competition. As well, the Court was unwilling to adopt, as per Maine’s argument, a public health exception that would allow a state to regulate tobacco deliveries as a step to protect public health. In construing congressional intent, the justices declared that the legislature clearly meant to further a national policy of deregulation; and Congress did not want to create ‘‘an implicit general ‘public health’ exception broad enough’’ to cover the delivery of tobacco that Maine sought to regulate (Rowe 2008, 997). As in Riegel, moreover, Justice Ginsburg’s separate concurrence understood that preemption’s application sometimes leads to harsh results. While she agreed with the Court, she wrote apart to express her doubt that Congress intended an outcome harming minors when it deregulated the trucking industry; and to signal Congress that it ought to ‘‘fill that gap’’ in national policy by creating legislation that would account for state laws designed to restrict minors’ access to tobacco (Rowe 2008, 998). New Federalism Jurisprudence 591 In a third preemption case, Preston v. Ferrer (2008), Justice Ginsburg joined her colleagues in deciding whether the Federal Arbitration Act (FAA) preempts state laws, which refer state law contract disputes to administrative agencies. The Court, with only Justice Thomas dissenting, ruled that ‘‘when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA’’ (Preston 2008, 981). Writing for the Court, Justice Ginsburg observed that the FAA established a ‘‘national policy favoring arbitration of claims that parties contract to settle in that manner,’’ and it ‘‘forecloses state legislative attempts to undercut the enforceability of arbitration agreements’’ (Preston 2008, 983). In a lone dissent, Justice Thomas simply reiterated his long-standing view that the Federal Arbitration Act does not apply to state court proceedings. Although Medtronic, Rowe, and Preston, and do not necessarily denote a trend, they shed light on Chief Justice Roberts’s and Justice Alito’s approach to preemption cases. In brief, these cases suggest that Roberts and Alito are willing to follow in the path of conservative justices on the Rehnquist Court who often sided with the states in cases concerning the commerce clause, Tenth Amendment, Eleventh Amendment and Section Five of the Fourteenth Amendment, but were prone to uphold federal authority in preemption cases (Conlan and Dudley 2005). As noted previously, the Chief Justice’s preconfirmation views on preemption are hard to discern, but the preemption cases suggest that he might be willing to find that federal law preempts very basic (and traditional) state regulatory powers. Arguably, Chief Justice Roberts’ sensitivity to states’ rights—as inferred from his off-the-bench writings—may be softened in preemption cases. Further, Justice Alito’s preconfirmation views on preemption are mainly derived from his Third Circuit New Jersey Payphone decision—there, he asserted that preemption should be viewed prudentially. Yet, by joining the majority in Rowe and Medtronic Justice Alito might be indicating that he is shifting his position to less prudential view, and hence he might be more deferential to federal power in similar cases. Yet, New Jersey Payphone presented Alito with the option, as he saw it, to decide the case based on preemption or under state law, and significantly he based his decision on the state law claim. In addition, once a preemption case has been accepted by the Supreme Court, other avenues for decision have been most likely foreclosed; that is, the Court will only consider the preemption issue. Thus, in subsequent preemption cases Justice Alito will face a stark choice: either a state law is preempted by federal law, or it is not. In the end, it may be more difficult for Justice Alito to view preemption prudentially now that he is on the Supreme Court. A few common threads in the three preemption cases are also apparent. In each case, the Court relied heavily on precedent interpreting the text of the relevant statutes, and using that approach the Court discovered clear congressional intent: such as, for example, in Rowe where Congress did not recognize a public health 592 C. Banks and J. Blakeman exception to state trucking regulations affecting delivery services, or in Preston where Congress did intend to put in place a national arbitration policy. Finally, the Court reasoned in each case that state regulations directly interfered with national policy, as defined by Congress. Thus, although Chief Justice Roberts and Justice Alito, along with six other Justices in Riegel and Preston, and with all others in Rowe, held that federal preempted state laws regulating public health, contracts, and state common law, the Court is more likely to preempt contrary state law when Congress’s intent is clearly expressed, clear Supreme Court precedent exists, and state action directly frustrates national policy. The adherence to textual moorings and congressional intent was also evident in CSX Transportation, Inc, v. Georgia State Board of Equalization (2007). As with most of the preemption rationales, the Court found consensus in addressing whether a railroad may challenge, in light of anti-tax discrimination federal law designed to protect the railroad industry, a State’s methodology in valuing CSX’s railroad property at a higher tax than analogous commercial properties. For Chief Justice Roberts and a unanimous Court, the federal law, as expressed in the so-called ‘‘4-R’’ law (the Railroad Revitalization and Regulatory Reform Act of 1976), manifested a clear congressional purpose and intent to prevent Georgia from discriminating against CSX by imposing a higher levy. Notably, in so holding the Chief Justice dismissed the State’s argument that ‘‘background principles of federalism’’ prevented courts from interfering with state tax policy decisions. In Medellin v. Texas (2008), a preemption case with a unique foreign policy twist, the Court decided by a 6:3 vote, with Justices Breyer, Ginsburg, and Souter dissenting, that state criminal courts are not bound to follow a Presidential directive implementing an International Court of Justice decision and the President’s interpretation of a treaty. In 2004, the International Court of Justice ruled in the Avena Case that the United States had violated the terms of the 1963 Vienna Convention on Consular Relations because Texas had not allowed Jose Medellin, a Mexican national, to contact his local consulate, as per the terms of the treaty, during his arrest and conviction for capital murder in the Texas criminal justice system. In response to the Avena Case decision President Bush issued a Memorandum providing that state courts give effect to the ICJ decision and comply with the Vienna Convention. Subsequently, the Texas Court of Criminal Appeals determined that the Avena Case and the Presidential Memorandum were not binding upon the states and therefore did not have to be followed in state criminal proceedings. The Court ruled in favor of the State of Texas, and the majority decision authored by Chief Justice Roberts focused on the Court’s role in interpreting international treaties. Using a strict textual analysis, the Court determined that treaties under which the United States accepts the International Court of Justice’s jurisdiction is not self-executing and thus inapplicable to the states without New Federalism Jurisprudence 593 implementing congressional legislation. Consequently, ICJ decisions are not binding upon the states either. Chief Justice Roberts’s opinion noted that the President ‘‘may not rely upon a non-self-executing treaty to establish binding rules of decision that preempt contrary state law’’ (Medellin 2008, 22). The Chief Justice’s opinion also addressed the federal government’s argument that the President has an independent source of authority to order states to comply with international law. Although the Court recognized several precedents that establish executive authority to settle claims with other sovereign states by executive agreement, it refused to stretch those cases to justify the president’s directive to state courts to follow the Avena Case decision. And, applying the tripartite framework from Justice Robert Jackson’s concurring opinion in the seminal case Youngstown Sheet and Tube v. Sawyer (1952), the Court determined that the president did not have the unilateral power to enforce state compliance with the Avena Case decision and Congress had not acquiesced in the president’s asserted foreign policy authority over the states. Thus, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced to) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments (Medellin 2008, 24). Justice Breyer’s dissent, joined by Justices Souter and Ginsburg, argued more forcefully that the Supremacy Clause and ‘‘the extensive case law interpreting the Clause as applied to treaties’’ indicates that the ICJ decision is binding upon state courts (Medellin 2008, 42). A few other cases, still pending, are likewise important in identifying the boundaries between state law and federal policy. In Department of Revenue of Kentucky v. Davis (2007), the Court will determine if the dormant commerce clause prohibits a state from exempting its state and local bonds from state taxation, while taxing government bonds issued outside of its borders. The Court’s decision will greatly impact state policymaking. One brief, filed by attorneys general of forty- eight states (in addition to Kentucky), argues that states have long exempted their own bonds from taxation (while taxing bonds from other states), thereby preserving their sovereign interests in regulating finance and debt service. Briefs supporting Kentucky’s tax policy also have been filed by interest groups that reflect the parochial interests of the National Governors Association and the National Conference of State Legislatures. If the Court applies the dormant commerce clause to strike down the tax policy, the ruling will directly repudiate the consensus of almost all states that operate under the principle that bond taxation policies are uniquely sovereign. In light of United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007), it is plausible that the justices will sustain Kentucky’s bond tax policy, especially given the near-unanimous state consensus 594 C. Banks and J. Blakeman underlying it. Also, the case invariably presents another opportunity for exacerbating judicial conflict, especially if the Chief Justice and Justice Alito opt to distance themselves from the jurisprudence of Justices Thomas and Scalia. In United Haulers, Thomas and Scalia voted with the majority to limit federal power, but they further questioned the legitimacy of the dormant commerce clause doctrine as well as its application to state economic policymaking. In contrast, dissenting Justice Alito (with Kennedy and Stevens) accepted the Court’s role in shaping dormant commerce clause doctrine as it applies to state economic policymaking, and Chief Justice Roberts (joined by the three liberal justices Souter, Ginsburg, Breyer) agreed with dormant commerce clause precedents and limited federal power based on the facts of the case. Finally, federalism cases litigated in the Roberts Court in subsequent terms may have to contend with arguments in litigant briefs adopting Justice Clarence Thomas’s interpretation of the Establishment Clause ‘‘as a federalism provision’’ in religious freedom cases. Two recent First Amendment cases, with states as litigants and amicus curiae, have adopted Justice Thomas’s federalism reading of the Establishment Clause. In Cutter v. Wilkinson (2005), which concerned the constitutionality of RLUIPA—the Religious Land Use and Institutionalized Persons Act—the State of Ohio argued that ‘‘the federalist aspect of the Establishment Clause is reflected in the basic constitutional framework’’; and that State sovereigns, when acting within their ‘‘respective sphere[s],’’ such as in matters of religion, are ‘‘not subject to federal oversight’’ (Brief of Respondent State of Ohio 2005, 53). Ohio’s position was echoed by other states as amicus curiae (Brief of the Commonwealth of Virginia 2005). Significantly, the states derived their rationales from Justice Thomas’s concurrence in Elk Grove School District v. Newdow (2004). There, he argued that the Establishment Clause is a federalism provision that imposes jurisdictional barriers to federal oversight of state religious policymaking. In its Cutter brief, the federal government vehemently disagreed; and perhaps that influenced the Court to rule unanimously in favor of RLUIPA, especially because the justices failed to address the merits of Ohio’s federalism arguments.3 Analogous federalism arguments resurfaced in the most recent church-state case of Hein v. Freedom from Religion Foundation, Inc. (2007), but this time in regards to whether a litigant had taxpayer standing to challenge the constitutionality of the White House’s Faith Based Initiative’s Office. Specifically, the State of Indiana, joined by eleven other states as amicus curiae, argued: Permissive treatment of state-taxpayer lawsuits undermines our federalist structure by involving federal courts in the daily functioning of state bureaucracies. The Court has repeatedly emphasized that federal courts must respect principles of federalism when cases portend judicial regulation of state programs . . . these same concerns apply in Establishment Clause cases, New Federalism Jurisprudence 595 which increasingly threaten to put state-government bodies under federal- court supervision (Brief of the State of Indiana and other States, as Amicus Curiae, Hein v. Freedom from Religion Foundation 2007, 13). As in Cutter, the Court ignored this federalism argument, and showed that, at least insofar as the other justices are concerned, a federalism reading of the Establishment Clause is unlikely to be adopted by the rest of the Court any time soon. Even so, the importance of this development is registered by the decision of several states to press that view on the Roberts Court, perhaps indicating that at least some of the states perceive federalism arguments as a viable, if not a fruitful, avenue to initiate change in constitutional doctrine affecting states’ rights and church–state relations. Conclusion The appointments of Chief Justice Roberts and Justice Alito probably will not appreciably reverse the recent trend of ‘‘counter-revolutionary’’ new federalism cases that impose fewer limits on federal authority. Many of the seminal states’ rights decisions were set by the Rehnquist Court, and the new Chief Justice and the addition of Justice Alito are probably not going to reconfigure the basic voting blocs and push the Court further to the right on key federalism issues. As a result, Chief Justice Roberts, as a replacement for his mentor, is likely to ‘‘stay the course’’ in new federalism cases, using minimalist principles of judicial restraint and the rule of law as pragmatic guideposts to adjudicate federalism disputes. It is an open question whether Justice Alito, in replacing Justice O’Connor, will be any more conservative than she was in those types of cases. In any event, the ‘‘States’ Rights Five,’’ although now consisting of Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito, are likely to remain intact as a solid bloc, Justice Kennedy—and not the Chief Justice or Justice Alito—will probably assume the role Justice O’Connor played as a swing vote in crafting limits on federal power. It seems unlikely that Roberts and Alito will subscribe to the federalism of Thomas and Scalia, and their failure to do so—while not putting them in the same ideological camp as Justices Ginsburg, Breyer, and Souter—may well create a wider split among the conservatives on the Court. However, in this light the new justices will have a greater effect on the interpretative lines drawn by the five-justice coalition favoring state interests. Nothing in Chief Justice Roberts’s or Justice Alito’s records indicate they will fully adopt the ideological rigidity of Justice Thomas’s originalism relative to new federalism; and, even if they did, Justices Scalia and Kennedy would have to go along in order to push the Court back toward a greater recognition of state sovereignty principles. While Justice Alito may prove to be more conservative than Justice O’Connor, he is likely to be 596 C. Banks and J. Blakeman more liberal than Justice Thomas on federalism issues. Similarly, the new Chief Justice’s decision-making is likely to resemble more that of Chief Justice Rehnquist, or Justice Scalia; and, perhaps, Justice O’Connor and Justice Thomas in certain cases. Aside from preemption cases, any constraints imposed on federal power will only develop in accordance with how well the coalition remains cohesive. In sum, the Court will continue to vindicate state power in federalism rulings but, in doing so, it remains uncertain if the justices are likely to speak with one voice in the most politically contentious cases. Notes 1. Admittedly, there is little consensus about whether ‘‘new federalism’’ jurisprudence produced solid, or even new, support for states’ rights, especially in the Rehnquist Court (Hannah 2007). Whereas Solberg and Lindquist (2006) find mixed support for correlating conservative values with judicial outcomes favoring state interests in the Rehnquist Court, Collins (2007) reports that conservative ideology explains judicial support for state and local policies. As used here, the term describes a series of decisions, epitomized by U.S. v. Lopez (1995), signaling the Court’s willingness to place greater limits on congressional commerce authority and, concomitantly, reinvigorate state sovereignty in immunity, enforcement clause, and related federalism cases (Claeys 2005). 2. Justice Clarence Thomas recused himself and did not participate in the case. 3. The Solicitor General argued that ‘‘It is too late in the day to argue that the federal Constitution contains two different Establishment Clauses with varying levels of potency’’ depending on which level of policymaking—state or federal—was at issue. Also, calling a federalism reading of Establishment a ‘‘junior varsity’’ attempt to overturn the incorporation doctrine, General Paul Clement pointed out that the Court had been asked to adopt a similar federalism reading of the Establishment Clause two decades ago in Lee v. Weisman (1992) and it chose not to do so. References Adler, Jonathan H. 2006. Reckoning with rapanos: Revisiting ‘waters of the United States’ and the limits of federal wetland regulation. Missouri Environmental Law & Policy Review 14: 1–28. Arlington Central School District Board v. Murphy, 126 S. Ct. 2455. 2006. Avena Case, 2004. 2004 I.C.J. 12. Baker, Lynn A. 2006. Federalism and the spending power from Dole to Birmingham board of education. In The Rehnquist legacy, ed. Craig Bradley. New York: Cambridge University Press. Banks, Christopher P., and John C. Blakeman. 2006. The Roberts Court and New Federalism Jurisprudence. Unpublished paper delivered at the 2006 Meeting of the American Political Science Association in Philadelphia, Pennsylvania. New Federalism Jurisprudence 597 Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161. D.C. Cir. 2004. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356. 2001. Brief of the Commonwealth of Virginia and Seven Other States, and One Territory as Amicus Curiae in Support of the Respondents, Cutter v. Wilkinson, 2005 WL 363513. 2005. Brief of Respondent State of Ohio, Cutter v. Wilkinson. 2005 WL 363713. 2005. Brief of the State of Indiana and other States, as Amicus Curiae, Hein v. Freedom from Religion Foundation, 2007 WL 62298. 2007. Central Virginia Community College v. Katz, 546 U.S. 356. 2006. Chittister v. Pennsylvania Department of Community and Economic Development, 226 F.3d 223. 3d Cir. 2000. City of Boerne v. Flores, 521 U.S. 507. 1997. Claeys, Eric R. 2005. Raich and the judicial conservativism at the close of the Rehnquist court. Lewis & Clark Law Review 9: 791–822. Clayton, Cornell W., and J. Mitchell Pickerill. 2004. Guess what happened on the way to revolution? Precursors to the supreme court’s federalism revolution. Publius: The Journal of Federalism 34 (3): 85–114. Collins, Paul M. 2007. Towards an integrated model of the U.S. supreme court’s federalism decision making. Publius: The Journal of Federalism 37 (4): 505–531. Committee on the Judiciary, U.S. Senate. 2006. Confirmation hearing on the nomination of Samuel A. Alito, Jr. to be an associate justice of the United States. S. Hrg. 109-277. 109th Cong., 2nd Sess. Washington, DC: U.S. Government Printing Office. ———. 2005. Confirmation hearing on the nomination of John G. Roberts, Jr. to be chief justice of the United States. S.Hrg.109-158. 109th Cong., 1st Sess. Washington, DC: U.S. Government Printing Office. ———. 2003a. Confirmation hearings on federal appointments: Hearing, part 3. S.Hrg.108-135 (Part 3). 108th Cong., 1st Sess. Washington, DC: U.S. Government Printing Office. ———. 2003b. Confirmation hearings on federal appointments: Hearing, part 1. S.Hrg.108-135 (Part 1). 108th Cong., 1st Sess. Washington, DC: U.S. Government Printing Office. ———. 1990. Confirmation hearings on federal appointments: Hearings on confirmation hearings on appointments to the federal judiciary, part 5.’’ S. Hrg.101-651 (Part 5). 100st Cong., 2nd Sess. Washington, DC: U.S. Government Printing Office. Conlan, Timothy J., and Robert L. Dudley. 2005. Janus-faced federalism: State sovereignty and federal preemption in the Rehnquist court. PS: Political Science and Politics 38 (July): 363–366. CSX Transportation, Inc. v. Georgia State Board of Equalization, 128 S.Ct. 467. 2007. Cutter v. Wilkinson, 544 U.S. 709. 2005. Dinan, John. 2004. Consequences of the Rehnquist court’s federalism decisions for congressional lawmaking. Publius: The Journal of Federalism 34 (2): 39–67. 598 C. Banks and J. Blakeman Department of Revenue of Kentucky v. Davis, 127 S. Ct. 2451. 2007 (granting certiorari). Devins, Neal. 2007. Lessons from the federal partial birth abortion ban. St John’s Journal of Legal Commentary 21: 461–471. Elk Grove School District v. Newdow, 542 U.S. 1. 2004. Fortenberry, Paul Alexander, and Daniel Canton Beck. 2005. Constitutional interpretations of Article III and the commerce clause: Will the ‘hapless toad’ and ‘John Q. Public’ have any protection in the Roberts Court? University of Baltimore Journal of Environmental Law 13: 55–94. Fry v. U.S., 421 U.S. 75. 1975. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528. 1985. Gonzales v. Carhart, 127 S. Ct. 1610. 2007. Gonzales v. Oregon, 546 U.S. 243. 2006. Gonzales v. Raich, 545 U.S. 1. 2005. Hannah, Jim. 2007. Forgotten law and judicial duty. Albany Law Review 70: 829–840. Harvard Law Review Association. 2006. Leading cases. Harvard Law Review 120: 351–358 (unsigned student note). Hasen, Richard L. 2005. Congressional power to renew the preclearance provisions of the voting rights act after Tennessee v. Lane. Ohio State Law Journal 66: 177–207. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553. 2007. Huhn, Wilson Ray. 2006. The constitutional jurisprudence of Sandra Day O’Connor: A refusal to ‘foreclose the unanticipated’. Akron Law Review 39: 379–415. Kimel v. Florida Board of Regents, 528 U.S. 62. 2000. Lazarus, Simon. 2006. Federalism R.I.P.? Did the Roberts hearing junk the Rehnquist court’s federalism revolution?’’ DePaul Law Review 56: 1–54. Lee v. Weisman, 505 U.S. 577. 1992. Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438. 2007. Maveety, Nancy L. 2003. Justice Sandra Day O’Connor: Accommodationism and conservatism. In Rehnquist Justice, ed. Earl M. Maltz. Lawrence, KS: University of Kansas Press. Medellin v. Texas, 76 USLW 4143. 2008. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721. 2003. New Jersey Payphone Association v. Town of West New York, 299 F.3d 235. 3rd Cir. 2002. Northern Insurance Co. v. Chatham County, 547 U.S. 189. 2006. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1. 1981. Preston v. Ferrer, 128 S.Ct. 978. 2008. Pushaw, Jr, Robert J. 2005. Does congress have the constitutional power to prohibit partial- birth abortion? Harvard Journal on Legislation 42: 319–353. New Federalism Jurisprudence 599 Rancho Viejo LLC v. Norton, 334 F.3d 1158. D.C. Cir. 2003. Rapanos v. U.S. Army Corps of Engineers, 126 S. Ct. 2208. 2006. Riegel v. Medtronic, Inc., 128 S. Ct. 999. 2008. Roberts, John G., Jr. 1993a. Rule of law: The new solicitor general and the power of the amicus. The Wall Street Journal (May 5, 2003): A23. ———. 1993b. Article III limits on statutory standing. Duke Law Journal 42: 1219–1232. ———. 1978a. Contract clause—legislative alteration of private pension agreements. Harvard Law Review 92: 86–99 (unsigned student note). ———. 1978b. The takings clause. Harvard Law Review 91: 1462–1501 (unsigned student note). Roe v. Wade, 410 U.S. 113. 1973. Roper v. Simmons, 543 U.S. 551. 2005. Rowe v. New Hampshire Motor Transport Association, 128 S. Ct. 989. 2008. Schragger, Richard C. 2004. The role of the local in the doctrine and discourse of religious liberty. Harvard Law Review 117: 1810–1892. Solberg, Rorie Spill, and Stefanie A. Lindquist. 2006. Activism, ideology, and federalism: Judicial behavior in constitutional challenges before the Rehnquist court, 1986-2000. Journal of Empirical Legal Studies 3 (2): 237–261. South Dakota v. Dole, 483 U.S. 203. 1987. Tennessee v. Lane, 541 U.S. 509. 2004. Tushnet, Mark. 2006. A court divided: The Rehnquist court and the future of constitutional law. New York: W.W. Norton. ———. 2003. The new constitutional order. Princeton, NJ: Princeton University Press. United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786. 2007. U.S. v. Georgia, 126 S.Ct. 877. 2006. U.S. v. Lopez, 514 U.S. 549. 1995. U.S. v. Morrison, 529 U.S. 598. 2000. U.S. v. Rybar, 103 F.3d 273. 3d Cir. 1996. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779. 1995. Watters v. Wachovia Bank, 127 S. Ct. 1559. 2007. Whittington, Keith E. 2001. Taking what they give us: Explaining the court’s federalism offensive. Duke Law Journal 51: 477–520. Winkelman v. Parma City School District, 127 S. Ct. 1994. 2007. Youngstown Sheet and Tube v. Sawyer, 343 U.S. 575. 1952. 600 C. Banks and J. Blakeman 
work_ghremggrmjhxfddwxczsilhk2a	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221741787 Params is empty 221741787 exception Params is empty 2021/04/06-03:20:41 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221741787 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:41 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_gj7cwzebknb2to5jmdinzy4mvm	----	Homelessness: a barometer of social justice Comment www.thelancet.com/public-health Vol 5 January 2020 e2 Homelessness: a barometer of social justice The number of people experiencing homelessness in the UK has dramatically increased since 2010. In the autumn of 2018, 4677 people in England were estimated to be sleeping rough, a worrying increase from 1768 in 2010.1 Although these numbers almost certainly underestimate the total number of people affected, the trends in these data are important and unsurprising, given that one in five bed spaces for single homeless people have been lost during the same period, a reduction from 43 655 in 2010 to 34 900 in 2018.2 Rough sleeping is at the extreme and visible end of homelessness, and estimates of the total number of people affected by the UK’s housing crisis highlight an even larger problem. Data from 2019 suggest that around 250 000 households and 400 000 people are currently homeless or at risk of homelessness.3 Homelessness can have fatal consequences. The UK Office for National Statistics (ONS) estimated that 726 people experiencing homelessness died in England and Wales in 2018.4 These figures represent a 22% year- to-year increase and are the highest since these estimates began in 2013. The ONS data suggest that most deaths among people who were homeless were caused by drug- related poisoning, suicide, and alcohol-specific deaths. Like estimates of the number of people who are sleeping rough, these data are likely to underestimate deaths, but the trend is important and provides a rare insight into the precarious health of this population. Our recent study of deaths among people experiencing homelessness showed a different pattern of deaths to that of the ONS data.5 We examined the causes of death among people previously admitted to hospital and seen by specialist integrated homeless health and care schemes. Similar to the ONS data, we found high numbers of deaths caused by drug-related poisoning, suicide, and alcohol. However, our study highlighted the importance of chronic and potentially preventable diseases, such as coronary heart disease, respiratory disease, and cancer. Crucially, after adjusting for age and sex, nearly one in three of the deaths among people who were homeless in our study were due to causes that are amenable to timely health care.5 Collectively, this evidence demonstrates a public health emergency that we already know how to tackle— but have failed to do so. Most people experiencing homelessness had been admitted to hospital in acute health crisis.5 Their health needs represent a system failure to intervene early and prevent serious harms. Evidence from England, corroborated internationally, highlights multiple missed opportunities for timely intervention. First, the unsafe discharging of patients who are homeless must be stopped. Safeguarding Adults Reviews into the deaths of people who are homeless have highlighted poor hospital discharge practices, including people being discharged back onto the street.6 Health-care professionals have a duty of care and should apply the same standards of quality and safety to all patients; for example, discharge should be delayed when it is not safe.7 Discharging a patient without them having somewhere safe to stay is a safeguarding issue. Second, specialist integrated homeless health schemes are more effective and cost-effective than standard care.8 Despite large increases in homelessness and deaths among people who are homeless, many of these specialist schemes closed because of an absence of sustainable funding. The case for reinvesting in and scaling up these services nationally is clear. Third, intermediate care facilities in the community can prevent serious illness and unplanned hospital admissions, saving lives and money.8 These services play a vital role in freeing up acute beds, while ensuring that people still get the help and support they need to manage long-term conditions and plan for their future. These services need to be widely accessible to both community and hospital health-care providers as part of specialist integrated homeless health schemes, and all of these services should be designed collaboratively to ensure they are accessible to, and meet the needs of, people experiencing homelessness.9 Fourth, we need to move away from emergency hostels and unaffordable or unsustainable private lettings to adopt a full housing-first approach to homelessness. People who become homeless should have rapid access to permanent housing with ongoing health and social care support that recognises the complex needs of individuals who have experienced long periods of severe adversity.10 This approach to housing should be accompanied by a large increase in social housing to reduce the number of people at risk of homelessness. Finally, we must tackle Published Online December 2, 2019 https://doi.org/10.1016/ S2468-2667(19)30240-3 http://crossmark.crossref.org/dialog/?doi=10.1016/S2468-2667(19)30240-3&domain=pdf Comment e3 www.thelancet.com/public-health Vol 5 January 2020 the political determinants of homelessness, including child poverty, poor education and employment oppor- tunities, criminalisation, invisibility, and stigma. Everyone has a right to dignity and respect. Home- lessness is a barometer of social justice that reflects a serious problem in our society, the remedy to which is within our grasp. Rob Aldridge Institute of Health Informatics, University College London, London NW1 2DA, UK r.aldridge@ucl.ac.uk I declare no competing interests. Copyright © 2019 The Author(s). Published by Elsevier Ltd. This is an Open Access article under the CC BY 4.0 license. 1 UK Ministry of Housing, Communities & Local Government. Rough sleeping statistics: autumn 2018, England (revised). Feb 25, 2019. https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/781567/Rough_ Sleeping_Statistics_2018_release.pdf (accessed Nov 20, 2019). 2 Homeless Link. Annual review of single homelessness support in England. https://www.homeless.org.uk/facts/our-research/annual- review-of-single-homelessness-support-in-england (accessed Nov 20, 2019). 3 National Housing Federation. How many people need a social rented home? September, 2019. http://s3-eu-west-1.amazonaws.com/img. housing.org.uk/NHF_Briefing_How_many_people_need_a_social_ rented_home_FINAL.pdf (accessed Nov 20, 2019). 4 Office for National Statistics. Deaths of homeless people in England and Wales: 2018. Oct 1, 2019. https://www.ons.gov.uk/ peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/ bulletins/deathsofhomelesspeopleinenglandandwales/2018 (accessed Nov 21, 2019). 5 Aldridge RW, Menezes D, Lewer D, et al. Causes of death among homeless people: a population-based cross-sectional study of linked hospitalisation and mortality data in England. Wellcome Open Res 2019; 4: 49. 6 Martineau S, Cornes M, Manthorpe J, Ornelas B, Fuller J. Safeguarding, homelessness and rough sleeping: an analysis of Safeguarding Adults Reviews. Sept 3, 2019. https://kclpure.kcl.ac.uk/portal/files/116649790/ SARs_and_Homelessness_HSCWRU_Report_2019.pdf (accessed Nov 20, 2019). 7 Cornes M, Aldridge R, Tinelli M, et al. Transforming out-of-hospital care for people who are homeless: support tool complementing the high impact change model for transfers between hospital and home. Nov 18, 2019. https://kclpure.kcl.ac.uk/portal/files/119151993/HHD_SUPPORT_TOOL_ Nov_2019.pdf (accessed Nov 20, 2019). 8 King’s College London. Effectiveness and cost-effectiveness of ‘usual care’ versus ‘specialist integrated care’: a comparative study of hospital discharge arrangements for homeless people in England. https://www.kcl. ac.uk/scwru/res/hrp/hrp-studies/hospitaldischarge (accessed Nov 21, 2019). 9 Nobody Left Outside. NLO checklist guidance document. October, 2019. https://nobodyleftoutside.eu/nlo-checklist-guidance-document (accessed Nov 22, 2019). 10 Baxter AJ, Tweed EJ, Katikireddi SV, Thomson H. Effects of Housing First approaches on health and well-being of adults who are homeless or at risk of homelessness: systematic review and meta-analysis of randomised controlled trials. J Epidemiol Community Health 2019; 73: 379–87. Homelessness: a barometer of social justice References 
work_gjvqovgtdbgyvbtehrkl5thdfe	----	Future of Youth Justice in Japan Masahiro Suzuki1; Kenji Takeuchi2 1 School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia 2 Faculty of Law, Kyushu University, Fukuoka, Japan Corresponding Author Name: Masahiro Suzuki Position: Doctoral candidate Affiliation: School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia Tel: +61 (0)7 3735 1202 Email: masahiro.suzuki@griffithuni.edu.au Published in Youth Justice, doi: 10.1177/1473225419869988. https://protect-au.mimecast.com/s/XFVyCyoNQ6C4ojYPIMoTBK?domain=doi.org 1 Abstract Japanese youth justice has experienced several reforms to date. Currently, a radical revision is under consideration: to lower the age of criminal majority from 20 years to 18 years. Japanese scholars and practitioners have since been engaged in debates over this proposal. Drawing on existing empirical research on youth offending and juvenile justice, the purpose of this paper is to advance a critical analysis on (in)appropriateness of lowering the age of criminal majority. By focusing on its potential consequences, we also discuss what the future of youth justice in Japan would look like. We conclude with offering research implications. Keywords Youth justice, Japan, age of criminal majority, juvenile law, youth offending 2 Introduction The age of criminal majority varies between countries. For example, according to Abrams, Jordan, and Montero (2018; also see Pruin and Dünkel, 2015 for other countries in Europe, and Thomas, 2017 for the US), who recently examined what defines as young offenders in the justice systems of Argentina, Belize, UK, and Finland, the age of criminal majority ranges from 16 years to 21 years. In Japan, since its enactment in 1948, the Juvenile Law defines the age of criminal majority as under 20 years. The Japanese government is currently considering revising this threshold. It proposes to lower the age of criminal majority from 20 years to 18 years (Ellis and Kyo, 2017). This proposal has caused a heated debate over its justification and appropriateness. Specifically, Japanese scholars and lawyers have raised grave concerns about this radical change (Japan Federation of Bar Associations, 2015; 2018; 2019; Japanese Criminal Law Scholars, 2015; 2018; The Japanese Society of Psychiatry and Neurology, 2019). We aim to add to this debate in Japan. By drawing on existing empirical research on juvenile justice and youth offending, our objective is to conduct a critical analysis on lowering the age of criminal majority in Japan. Inspired by Haines and Case (2018), with a focus on its potential consequences, we also discuss what the future of youth justice in Japan would look like if the age of criminal majority were lowered. Similar to other East Asian countries, such as China (Hebenton and Jou, 2010), criminology is a subfield of law in Japan (Konishi, 2013). Most criminologists in Japan have a law background. Legal perspectives tend to dominate the debates on lowering the age of criminal majority in Japan. There is a lack of focus on important and relevant perspectives, such as developmental psychology and other behavioural and social sciences, including criminology. Examining potential consequences on the basis of existing evidence on youth 3 offending and juvenile justice will offer an important contribution to advancing the discussion over revising the threshold of the age of criminal majority in Japan. In the youth justice literature, defining the age threshold for the juvenile justice system has been a major topic of discussion (e.g. McDiarmid, 2013). For example, researchers have argued the necessity of raising the minimum age of criminal responsibility in the UK (Goldson, 2013) and Australia (Cunneen, 2017), and the ‘raise the age’ movement has been occurring in the US (Cauffman et al., 2017). Internationally, youth justice scholars and practitioners have advocated for expanding the scope of juvenile justice. With the proposed reform to lower the age of criminal majority from 20 years to 18 years, Japanese youth justice attempts to narrow down its scope. In this sense, discussing Japanese youth justice adds to the youth justice literature as an interesting example in the international context. The structure of this paper is as follows. First, we briefly describe the history of reforms in Japanese youth justice, as well as the current proposed revision. Second, we provide the debates over lowering the age of criminal majority in Japan. In particular, we introduce the pros and cons that have been offered in Japanese literature. Third, drawing on existing empirical research on youth offending and juvenile justice, we critically analyse the (in)appropriateness and potential consequences of lowering the age of criminal majority. Finally, we conclude by discussing the future of youth justice in Japan and by providing future research implications. Reforms of Youth Justice in Japan History of Reforms Japanese youth justice has experienced several reforms. These revisions have already been discussed elsewhere (for example, see Ellis and Kyo, 2017; Suzuki and Otani, 2017), and these past revisions are not the main focus of this paper. Therefore, we briefly review the 4 history of reforms in youth justice in Japan. The Japanese Juvenile Law has been revised four times to date. Below we describe the main changes of each revision. The first revision of the Juvenile Law in Japan occurred in 2000. This involved the following three main changes (Hoffmann, 2007; Schwarzenegger, 2003; Yoshida, 2003). First, the minimum age of criminal responsibility was lowered from 16 years to 14 years, and serious crimes, such as intentional homicide, were determined to be automatically transferred to the adult court. Second, this revision introduced a panel of judges in youth justice and enabled the involvement of prosecutors in the adjudication process of the Family Court for serious cases. Finally, victims were allowed to access the court records and offer their statements to the youth justice proceedings. In 2007, the second revision of the Juvenile Law was conducted. Several changes were made at this time (Osaki, 2017; Takumi, 2017). These included the expansion of police investigations on status offences; lowering the minimum age for juvenile reformatory schools from over 14 years to around over 12 years; introduction of more penalties for a breach of a probation order; and the introduction of court-assigned counsel for serious crimes committed by a young offender. The Juvenile Law in Japan was again changed in 2008. This revision mainly concerned with victim rights (Matsui, 2011). In relation to the 2000 revision on access to court records and victim statements, victim rights were expanded and strengthened. Further, victims were allowed to participate in the Family Court hearings. The fourth and most recent revision was conducted in 2014. This revision was mainly related to sentencing (Ellis and Kyo, 2017). For example, the upper limit for custodial sentences was increased from 15 years to 20 years. The condition of parole was also tightened so that it required a longer period before eligibility. 5 The Juvenile Law in Japan has been revised as discussed above. The common theme among these reforms is that it was revised in a punitive way (Kuzuno, 2005). Inconsistent with the aim of the Juvenile law—to protect juveniles—young offenders, particularly those who commit a serious crime, now receive more severe punishments. As Suzuki and Otani (2017, p. 168) noted, ‘the notion of parens patriae, long maintained in the Japanese youth justice, seems to be declining’. The Current Proposed Revision In addition to these past reforms, another revision is currently under consideration. The Japanese government proposes to lower the age of criminal majority from 20 years to 18 years. This proposal is not entirely new. Since the enactment of the current Juvenile Law, lowering the age of criminal majority has been advocated several times, particularly by prosecutors in the 1960s and1970s. However, it was never implemented because its justification that youth crime was worsening was found to be wrong during the legislative council that discussed this proposal (Saito, 2018; Takeuchi, 2017b). We elaborate on two main reasons why this revision is again proposed. The first and foremost reason is the revision of the Public Offices Election Law (Japanese Ministry of Justice, 2016; Osaki, 2017; Takumi, 2017). In 2015, the right to vote was lowered from 20 years to 18 years. The supplementary provision of this revised law required legislators to consider also revising the civil law because the civil law in Japan defines 20 years as an adult, which was the reason why the right to vote was set at 20. This provision also requested legislators to take other necessary legislative measures. As a result, the Japanese government has started considering lowering the age of criminal majority from 20 years to 18 years to maintain consistency among laws. Another reason for this proposal is the tough on (youth) crime policy (Japanese Criminal Law Scholars, 2015; Kawade, 2015; Sasaki, 2016). The most apparent example is the remark 6 by the then Chairperson of the Policy Research Council in the ruling party, the Liberal Democracy Party of Japan, that it is necessary to consider revising the Juvenile Law in order to address the increasingly serious nature of youth offending. As is evident in the past reforms of youth justice in Japan (Fenwick, 2013; Ryan, 2005), lowering the age of criminal majority in Japan is proposed as part of increasing punitiveness in the Japanese criminal justice policy (Fenwick, 2013; Hamai and Ellis, 2008; Miyazawa, 2008). Debates over Lowering the Age of Criminal Majority in Japan The proposal of lowering the age of criminal majority in Japan has caused a heated debate among scholars and practitioners in youth justice. Once it is approved, it will be arguably one of the most radical revisions to transform Japanese youth justice, in the sense of who qualifies as ‘youth’ offenders. In this section, we introduce the debates over lowering the age of criminal majority in Japan. We focus on the pros and cons that have been offered in Japanese literature. Pros To discuss the proposal of lowering the age of criminal majority in Japan, the Japanese Ministry of Justice has formed a study group consisting of scholars and government officials (Japanese Ministry of Justice, 2016). This study group interviewed experts involved in youth justice and juvenile law, lawyers, victim support groups and media, and sought public opinions and examined current juvenile justice and youth offending in Japan. Subsequently, it published a report summarising the overall discussion. As some scholars, such as Takumi (2017) and Osaki (2017) observed, this report outlines reasons for justifying lowering the age of criminal majority in Japan (Japanese Ministry of Justice, 2016). The major reason for its justification is to maintain consistency with other laws (Japanese Ministry of Justice, 2016). As discussed above, as a consequence of the revision of the right 7 to vote in the Public Offices Election Law, other laws, such as the civil law, will also redefine an adult as 18 years. The advocates of lowering the age of criminal majority argue that people over 18 years who are considered adults in the civil law should not be eligible for the Juvenile Law in terms of the notion of parens patriae. In light of paternalism that governs the criminal justice system in Japan (c.f. Foote, 1992), it is considered that those who are defined as an adult should not receive protection of the Juvenile Law as children (see also a discussion in the legislative council of the Japanese Ministry of Justice, Hoseishingikai, 2018). They also suggest that consistency between laws would help to promote understanding among the public in terms of the legal definition of an adult in Japan. They claim that it is important to raise the awareness of and hold accountable young people who are above 18 as an adult in the criminal justice system. To strengthen this argument, the advocates provide examples of other countries that define 18 years as an adult offender (Japanese Ministry of Justice, 2016). In addition to these reasons, the advocates of lowering the age of criminal majority claim that increased recidivism as a potential consequence of lowering the age of criminal majority can be addressed by taking new measures for young adult offenders aged 18–19 years (Japanese Ministry of Justice, 2016). For example, they suggest introducing a new punishment that allows young adult offenders to be accommodated in juvenile reformatory schools, or new rehabilitation programs that offer special treatments in the adult correction facilities. They also propose to prepare a special measure for re-entry support, such as coordination with relevant agencies for housing and employment (Japanese Ministry of Justice, 2016). Cons In contrast to the endorsement for lowering the age of criminal majority in Japan, there are strong criticisms against lowering the age of criminal majority in Japan. Juvenile law and 8 youth justice scholars in Japan have raised grave concerns (Japan Federation of Bar Associations, 2015; 2018; Japanese Criminal Law Scholars, 2015; 2018) because the proposed revision does not align with the philosophy, history, purpose, and practice of youth justice and Juvenile Law in Japan. Japanese scholars have offered the critique that maintaining consistency among laws cannot justify lowering the age of criminal majority because it is not consistent with the legislative intent of the Juvenile Law to protect and rehabilitate young offenders (Goto, 2015). They go on to argue that reflecting its legal purposes, different laws should be able to set different ages to define an adult (Maruyama, 2017; Saito, 2018; Takeuchi, 2017a). In fact, as Abe and Yamazaki (2018) have observed, the Japanese government plans to continue restricting access to smoking, drinking and gambling among people under 20 years. Such restrictions are reflections and evidence of paternalism, which the Japanese government considers necessary for protecting these young people who are currently eligible for the Juvenile Law (Japan Federation of Bar Associations, 2018). Another critique is based on a historical perspective of the Juvenile Law in Japan. In the past, inconsistency between laws regarding the age of majority existed in Japan (Washino, 2017). While the civil law defined 20 years as an adult, the old Juvenile Law set the age of criminal majority as 18 years. After World War 2, when the current Juvenile Law was enacted, the age of criminal majority was raised from 18 years to 20 years (Maruyama, 2017; Moriya, 2018). It is important to note here that this revision of raising the age of criminal majority was conducted not because of the need to maintain consistency between laws. Instead, the age of criminal majority was raised because it was recognised that offenders under 20 years are still transitioning into adulthood, and therefore requiring protection because of their developmental needs (Takeuchi, 2015b). 9 Japanese scholars also criticise against lowering the age of criminal majority by giving examples of other countries that define the age of criminal majority as 18 years. This is not only because there are also countries whose age of criminal majority is 21 years (Abe and Yamazaki, 2018). But also, as Takeuchi (2017b) has observed, even if the age of criminal majority is 18 years, some of these countries, such as Germany, offer special proceedings and treatment for young adult offenders aged 18–21 years because there is consensus that they are more equivalent to young offenders than adult offenders in their maturity. The strongest criticism against lowering the age of criminal majority in Japan is derived from a rehabilitative perspective. This concern is especially raised in the event of a minor crime. According to Takeuchi (2017a) who analysed the Japanese youth justice system, minor crimes are the most common crime committed by senior young offenders who would become ineligible for the Juvenile Law after the proposed revision. Takeuchi (2017a) observed that these minor crimes, such as theft and assault, are currently handled in accordance with the aim of the Juvenile Law. Even if young offenders commit a minor crime, for which adult offenders would receive only a suspended prosecution or fine, these young offenders need to undergo a clinical assessment governed by the Family Court and receive necessary treatments. In practice, Japanese youth justice is operated with this rehabilitative focus. In this sense, youth justice in Japan is not necessarily ‘soft’ on youth crime (Abe and Yamazaki, 2018), as the politicians claim. However, lowering the age of criminal majority would result in these young offenders in need receiving a criminal record (Abe and Yamazaki, 2018; Japanese Criminal Law Scholars, 2018) instead of receiving appropriate treatment (Kawade, 2015; Takeuchi, 2015a). This potential consequence does not align with the purpose of the Juvenile Law—to give a second chance to young offenders (Otsuka, 2018). 10 (In)Appropriateness of Lowering the Age of Criminal Majority The preceding section has provided the current debates over lowering the age of criminal majority in Japan. In this section, we critically analyse the (in)appropriateness of lowering the age of criminal majority in Japan. To do so, we discuss whether this proposed revision of lowering the age of criminal majority in Japan is in line with established knowledge based on existing empirical research on juvenile justice and youth offending. Because the debates over lowering the age of criminal majority in Japan tend to be limited to legal perspectives, examining its potential consequences on the basis of existing empirical evidence on youth offending and juvenile justice will shed new light on the debates. We focus on the characteristics of young offenders and the potential consequences of changing the age of criminal majority. Characteristics of Young Offenders Evidence shows that young offenders differ from adult offenders. First, young offenders only have limited comprehensibility. The most well-known research is by Grisso (1981; Grisso et al., 2003). Examining the level of understanding of Miranda warnings, Grisso’s research has demonstrated that youths younger than 15 years, or those with IQ scores below 80, have difficulties properly understanding their legal rights. This finding is consistent with the results in recent research (e.g. Eatwood et al., 2015; Zelle et al., 2015). This challenge facing young offenders is also recognised by lawyers. Interviewing attorneys in Canada, Viljoen et al. (2010) found they had faced challenges when defending juvenile offenders; they had encountered cases that made them question whether young offenders correctly understood the legal process and consequences of their decision-making. Young offenders feel this difficulty in the youth justice process. Lount et al. (2018) examined how young offenders experienced and perceived youth justice in New Zealand. Their findings 11 highlighted that, due to their low verbal ability, young offenders felt disadvantaged in the justice process because they had difficulties understanding the legal terms used. Another distinction between young and adult offenders is their level of psychosocial maturity (Cauffman and Steinberg, 2000; Steinberg and Cauffman, 1996). Young offenders have a diminished ability of judgement because they are more impulsive and often cannot consider future consequences in their decision-making. In other words, young offenders tend to be risk-takers (Steinberg, 2008) and sensation-seekers (Steinberg et al., 2008). This characteristic is evident in their decision to become involved in anti-social behaviours (Cauffman et al., 2016). Examining the effect of psychosocial maturity on antisocial decision-making, Modecki (2008, p. 88) has found that ‘adolescents are less mature on the judgment . . . relative to college students, young-adults, and adults’. Similar results are reported in other research (e.g. Bryan-Hancock and Casey, 2010). Young offenders are still in the human developmental process. For this reason, young offenders need a different justice system that offers special treatment and care. This difference between young and adult offenders is the reason why the ‘raise the age’ movement has been occurring in the US (Cauffman et al., 2017; Justice Policy Institute, 2017; Thomas, 2017). While the age of criminal majority is 18 years in most states, in several states, such as New York (Raise the Age NY, n.d.), the age of criminal majority is still lower than 18 years (Arya, 2011). Along with this ‘raise the age’ movement, some states, such as Louisiana (Louisiana Youth Justice Coalition, 2016), have already successfully raised the age of criminal majority to 18 (Williams, 2015). Several scholars have further argued that young adult offenders aged 18–24 years are more comparable to younger offenders (Cauffman, 2012; Farrington et al., 2012; Feld, 2018; Prior et al., 2011), thereby claiming that these young adult offenders should be treated similarly, or that special courts and correctional facilities should be established for them 12 (Farrington et al., 2012; Loeber et al., 2012; Loomis-Gustafson, 2017). Young adult offenders tend to have the same characteristics, as well as face the same challenges in the justice procedures, as younger offenders. Examining experiences of young adult offenders (18–25 years) in the criminal justice system in Hong Kong, Cheng and Leung (2018) have found that they also faced difficulties similar to those described above, such as lack of understanding of their legal rights and of the legal process. This is congruent with the research conducted in the UK, showing that young adult offenders experienced challenges understanding the legal terminology used in the criminal justice procedure (Centre for Justice Innovation, 2018). If young offenders receive different treatment in a different justice system due to their immaturity, young adult offenders may also need such care because they may be more like young offenders than adult offenders. In sum, given the differences between young and adult offenders, lowering the age of criminal majority from 20 years to 18 years in Japan does not align with the evidence on the characteristics of young offenders. Considering similarities between young and young adult offenders, this proposed revision is, rather, moving in the opposite direction to the evidence. It may result in young offenders losing opportunities to receive appropriate treatment, consequently leading them to reoffending. Potential Consequences of Lowering the Age of Criminal Majority As discussed above, one of the justifications for lowering the age of criminal majority in Japan is that the current Juvenile Law is ‘soft’ on youth crime. By punishing young offenders more severely, it intends to prevent youth offending. However, due to the revision in the Juvenile Law, serious youth crimes are already transferred to the adult criminal justice system in Japan. More importantly, there is no evidence that this juvenile transfer can prevent youth crime in terms of both specific and general deterrence. 13 As for specific deterrence by juvenile transfer, many studies have been conducted. Therefore, there exist several systematic reviews and meta-analyses. According to the systematic review conducted by the Task Force on Community Preventive Services, the juvenile transfer is more likely to increase reoffending among transferred youths than among those not transferred (Hahn et al., 2007; McGowan et al., 2007). While the number of studies included is small, the meta-analysis conducted by the Washington State Institute for Public Policy (2014) also indicates that juvenile transfer is related to an increased likelihood of recidivism. Similarly, in the most recent meta-analysis, Zane, Welsh, and Mears (2016, p. 915) have reported that juvenile transfer may lead to ‘a small but statistically nonsignificant increase in future offending’. While cautioning the interpreting of the overall finding, they have suggested that juvenile transfer ‘does not result in an overall reduction in recidivism and may even increase it’. Thus, the systematic reviews on and meta-analyses of the specific deterrence effect by juvenile transfer consistently show that juvenile transfer is likely to increase recidivism or at least have no effect on preventing it. With regards to general deterrence through juvenile transfer, because of an insufficient number of studies, neither systematic reviews nor meta-analyses has been conducted (Hahn et al., 2007; McGowan et al., 2007). However, existing research consistently shows that juvenile transfer is not likely to have a deterrent effect on youth crime. The most recent research has been conducted by Steiner et al. (2006), who examined the general deterrence effect of juvenile transfer laws in 22 states in the US. Consistent with the past few studies (Jensen and Metsger, 1994; Risler et al., 1998; Singer and McDowall, 1988), their findings have demonstrated that juvenile transfer has no impact on deterring youth crime. Other, but limited, research has directly explored the impact of revising the age of criminal majority on youth offending. The study conducted by Fowler and Kurlychek (2018) is one such study. In this research, focusing on the fact that the age of criminal majority in 14 Connecticut was raised from 16 years to 17 years in 2010, they conducted a natural experiment. Comparing 16-year-old offenders who were processed as adult offenders before the legislative change and those who were processed as young offenders after the change, they examined the recidivism in a two-year follow-up period. They found that those treated as young offenders were less likely to reoffend than those treated as adult offenders (Fowler and Kurlychek, 2018). However, the findings of research conducted by Loeffler and Grunwald (2015) have shown otherwise. Because Illinois also raised the age of criminal majority from 17 years to 18 years in 2010, they also conducted a natural experiment. In this study, they compared the rearrest rates between 17-year-old offenders who experienced youth justice after the change and those who experienced the adult justice system before it. Their finding has demonstrated that raising the criminal majority had no impact on recidivism. This remains the case even when they considered subsamples of those ‘arrested within 60 days of their 17th or 18th birthday’ as well as ‘those arrested within 60 days of the change in law’, in order to ensure the robustness of their findings (Loeffler and Grunwald, 2015, p. 363). In addition to these studies on the specific deterrence effect, Loeffler and Chalfin (2017) have examined the general deterrence effect of raising the age of criminal majority. They also focused on Connecticut, but they also included the data up to 2013 because in Connecticut the age of criminal majority was again raised from 17 years to 18 years in 2012. To examine the impact of raising the age of criminal majority on the overall youth crime rate, based on the official crime data they created a hypothetical state whose youth crime rate resembled that in Connecticut before the change in the age of criminal majority in 2010. Comparing youth crime between Connecticut and this hypothetical state, they found that raising the age of criminal majority had no impact on deterring youth crime. 15 The above three studies have examined the impact of raising the age of criminal majority on youth offending, not that of lowering the age of criminal majority. One may question their relevance to this paper. In our view, however, the above findings may have an important implication about lowering the age of criminal majority.1 Although it remains speculative at this stage, changing the age of criminal majority might not have an impact on youth crime. This implication may be even more important because such null effects are seen even for raising the age of criminal majority, which is a beneficial revision for young offenders. As Loeffler and Grunwald (2015) phrased it (although their argument was about raising the age of criminal majority), this implication may be unexpected to both advocates for and opponents of lowering the age of criminal majority in Japan. If lowering the age of criminal majority did not impact on youth crime, it would not support either side of the claims. But, when considering the consequences of lowering the age of criminal majority, it is necessary to look beyond its effect on youth offending. For example, as Farrington et al. (2017) have suggested in the context of raising the age of criminal majority, lowering the age of criminal majority may lead to a loss of an opportunity for young offenders to receive appropriate treatment and rehabilitation when needed. A related point is that lowering the age of criminal majority may also negatively influence the future of offenders, particularly in terms of employment. Particularly 1 Following the ‘raise the age’ movement, several cost-benefit analyses have been conducted in US, and they consistently indicated that the benefits of raising the age of criminal majority would outweigh its costs (Deitch et al., 2012; Henrichson and Levshin, 2011; Hornby Zeller Associates, 2018; Independent Democratic Conference, 2016). If raising the age of criminal majority did not have an impact or only had a limited impact on youth crime in terms of both specific and general deterrence, these estimates might have overestimated its benefits because even as a conservative estimate, these cost-benefit analyse anticipated 10% reduction of recidivism (for example, see Deitch et al., 2012; Henrichson and Levshin, 2011). 16 problematic may be a criminal record because, unlike youth justice, a record is not expunged in the adult criminal justice system. It may influence their future employment (Illinois Juvenile Justice Commission, 2013; Justice Policy Institute, 2017; Loomis-Gustafson, 2017). The negative impact of a criminal record on employment among other outcomes, such as recidivism, is well known (e.g. Denver, 2017). Indeed, existing research on juvenile transfer shows that undergoing the adult criminal justice system rather than in the youth justice system is linked to diminished opportunities for employment as well as to reduced income (Augustyn and Loughran, 2017; Sharlein, 2018; Taylor, 2015). Another problem of lowering the age of criminal majority may be the negative consequences of accommodating younger offenders in adult correction facilities (Cauffman et al., 2017). Compared to juvenile facilities, there tend to be fewer services available for rehabilitation in adult correctional facilities (Kupchik, 2007; Ng et al., 2012). This may be problematic because the lack of support for reintegration is noted as one of the possible reasons for the increased likelihood of reoffending by juvenile transfer (Redding, 2008). Research has also shown that younger offenders incarcerated in adult prisons are more likely to be depressed (Murrie et al., 2009; Ng et al., 2011). Additionally, young offenders incarcerated in adult prisons may be more likely to be physically or sexually assaulted (Forst and Fagan, 1989; National Prison Rape Elimination Commission, 2009). The Future of Youth Justice in Japan: Promising or Precarious? If the age of criminal majority were lowered, what would the future of youth justice in Japan look like? According to the extant literature on youth offending and juvenile justice, we expect that it would likely be precarious rather than promising. Given the differences between young and adult offenders, lowering the age of criminal majority does not align with existing evidence on the characteristics of young offenders. Although studies on the impacts 17 of changing the age of criminal majority on youth offending are limited, coupled with the research on juvenile transfer, these studies imply that lowering the age of criminal majority may be less likely to provide benefits in terms of deterring youth crime. Lowering the age of criminal majority in Japan may raise other problems, such as diminished future opportunities for employment and negative consequences of incarceration with older prisoners. Overall, based on existing evidence, we assume that lowering the age of criminal majority is more likely to bring about negative consequences for youth justice in Japan. However, a limitation exists in our argument because the majority of empirical studies we have relied on to build our argument have been conducted in the US. There are differences between Japan and the US in terms of how the youth justice systems operate. For instance, research suggested that ethnic minorities are more likely to be transferred to the adult court in the US (Brown and Sorensen, 2013). The quantity of young offenders who are transferred to the adult court in Japan is also different from those in the US because the annual number of serious crimes that are eligible for juvenile transfer cases in Japan is much lower than that in the US (for example, see Homusogokenkyujo, 2007). There is also a distinction in terms of age thresholds for youth justice. This difference may be of particular importance because the age of criminal majority in Japan would be 18 years even if it were lowered, whereas the age of criminal majority in most US states would be 18 years even if it were raised. Given these differences, the findings of the above studies may not necessarily apply to youth offending and juvenile justice in Japan. Despite these limitations, we strongly recommend against lowering the age of criminal majority in Japan and argue that this proposed revision will not benefit youth justice in Japan. As we have discussed, the proposal to lower the age of criminal majority in Japan has emerged mainly out of the need to maintain consistency between laws, in particular recently with the civil law, which was determined to redefine adults as 18 years (Japanese Criminal 18 Law Scholars, 2018). The proponents for this revision do not carefully consider existing knowledge on youth offending and juvenile justice. Despite the past reforms driven by punitivism (Fenwick, 2013; Hamai and Ellis, 2008; Miyazawa, 2008), Japanese youth justice has maintained its rehabilitative focus and been successful in reintegrating young offenders in practice (Ellis and Kyo, 2017). The emphasis on and success of rehabilitation in youth justice are recognised even in the study group formed by the Japanese Ministry of Justice to discuss lowering the age of criminal majority (Japanese Ministry of Justice, 2016). However, lowering the age of criminal majority might be radical enough to transform youth justice in Japan into something entirely different. Given the recent discussions in the legislative council in Japan that do not consider the knowledge we drew upon, but emphasise the importance of consistency between laws, we are pessimistic about whether the critique will be taken into account. We anticipate that lowering the age of criminal majority is likely. This will be unfortunate for youth justice in Japan. What we can and should do is examine its impact on juvenile justice and youth offending in Japan. Compared to not only other industrialised countries but also to other East Asian countries, Japan has fewer empirical studies in criminology (for example, see Suzuki et al., 2018). The reforms in the justice system in Japan have been implemented without giving a lot of thought to whether the revisions are moving in the right direction in light of empirical knowledge on youth offending and juvenile justice. Similarly, after reforms were conducted, little research has been conducted to evaluate the effectiveness of the reforms. Japan should step out of this vicious cycle and start developing evidence-based youth justice (Haines and Case, 2018). 19 References Abe Y and Yamazaki H (2018) Shonenho tekiyonenrei no hikisage nitsuite kangaeru. Katei no Ho to Saiban 16: 57-70 (in Japanese). Abrams L S, Jordan S P and Montero L A (2018) What is a juvenile? A cross-national comparison of youth justice systems. Youth Justice 18(2): 111-130. Arya N (2011) Legislative victories from 2005 to 2010: Removing youth from the adult criminal justice system. Washington D.C.: Campaign for Youth Justice. Augustyn M B and Loughran T A (2017) Juvenile waiver as a mechanism of social stratification: A focus on human capital. Criminology 55(2): 405-437. Brown J M and Sorensen J R (2013) Race, ethnicity, gender, and waiver to adult court. Journal of Ethnicity in Criminal Justice 11(3): 181-195. Bryan-Hancock C and Casey S (2010) Psychological maturity of at-risk juveniles, young adults and adults: Implications for the justice system. Psychiatry, Psychology and Law 17(1): 57-69. Cauffman E (2012) Aligning justice system processing with developmental science. Criminology & Public Policy 11(4): 751-758. Cauffman E, Cavanagh C, Donley S and Thomas A G (2016) A developmental perspective on adolescent risk-taking and criminal behavior. In: Piquero A R (ed.), The handbook of criminological theory. Surrey, UK: Wiley-Blackwell, 100-120. Cauffman E, Donley S and Thomas A (2017) Raising the age: Raising the issues. Criminology & Public Policy 16(1): 73-81. Cauffman E and Steinberg L (2000) (Im)maturity of judgment in adolescence: Why adolescents may be less culpable than adults. Behavioral Sciences and the Law 18(6): 741-760. 20 Centre for Justice Innovation (2018) The voices of young adult defendants. London, UK: Centre for Justice Innovation. Cheng K K-Y and Leung B P-Y (2018) Passing the threshold of one justice system to the next: Challenges of emerging young adults in Hong Kong’s adult criminal justice process. International Journal of Offender Therapy and Comparative Criminology 62(9): 2650-2668. Cunneen C (2017) Arguments for raising the minimum age of criminal responsibility. Sydney, Australia: University of New South Wales. Deitch M, Breeden R and Weingarten R (2012) Seventeen, going on eighteen: An operational and fiscal analysis of a proposal to raise the age of juvenile jurisdiction in Texas. American Journal of Criminal Law 40(1): 1-67. Denver M (2017) Evaluating the impact of "old" criminal conviction decision guidelines on subsequent employment and arrest outcomes. Journal of Research in Crime and Delinquency 54(3): 379-408. Eastwood J, Snook B and Luther K (2015) Measuring the reading complexity and oral comprehension of Canadian youth waiver forms. Crime & Delinquency 61(6): 798- 828. Ellis T and Kyo A (2017) Youth justice in Japan. In: Tonry M (ed.), Oxford handbook of crime and criminal justice online. Oxford, UK: Oxford University Press. Farrington D P, Loeber R and Howell J C (2012) Young adult offenders: The need for more effective legislative options and justice proceedings. Criminology & Public Policy 11(4): 729-750. Farrington D P, Loeber R and Howell J C (2017) Increasing the minimum age for adult court: Is it desirable, and what are the effects? Criminology & Public Policy 16(1): 83-92. 21 Feld B C (2018) Punishing kids in juvenile and criminal courts. Crime & Justice 47(1): 417- 474. Fenwick M (2013) ‘Penal populism’ and penological change in contemporary Japan. Theoretical Criminology 17(2): 215-231. Foote D H (1992) The benevolent paternalism of Japanese criminal justice. California law review 80(2): 317-390. Forst M and Fagan J (1989) Youth in prisons and training schools: Perceptions and consequences of the treatment-custody dichotomy. Juvenile & Family Court Journal 40(1): 1-14. Fowler E and Kurlychek M C (2018) Drawing the line: Empirical recidivism results from a natural experiment raising the age of criminal responsibility. Youth Violence and Juvenile Justice 16(3): 263-278. Goldson B (2013) ‘Unsafe, unjust and harmful to wider society’: Grounds for raising the minimum age of criminal responsibility in England and Wales. Youth Justice 13(2): 111-130. Goto H (2015) Seijinnenrei no hikisage. Hogaku Kyoshitsu 423: 30-35 (in Japanese). Grisso T (1981) Juveniles' waiver of rights: Legal and psychological competence. New York, NY: Plenum Press. Grisso T, Steinberg L, Woolard J, Cauffman E, Scott E, Graham S, Lexcen F, Reppucci N D and Schwartz R (2003) Juveniles' competence to stand trial: A comparison of adolescents' and adults' capacities as trial defendants. Law and Human Behavior 27(4): 333-363. Hahn R, McGowan A, Liberman A, Crosby A, Fullilove M, Johnson R, Moscicki E, Price L, Snyder S, Tuma F, Lowy J, Briss P, Cory S and Stone G (2007) Effects on violence of laws and policies facilitating the transfer of youth from the juvenile to the adult justice 22 system: A report on recommendations of the task force on community preventive services. Morbidity and Mortality Weekly Report 56(9): 1-11. Haines K and Case S (2018) The future of youth justice. Youth Justice 18(2): 131-148. Hamai K and Ellis T (2008) Japanese criminal justice: Was reintegrative shaming a chimera? Punishment & Society 10(1): 25-46. Hebenton B and Jou S (2010) Criminology in and of China: Discipline and power. Journal of Contemporary Criminal Justice 26(1): 7-19. Henrichson C and Levshin V (2011) Cost-benefit analysis of raising the age of juvenile jurisdiction in North Carolina. New York, NY: Vera Institute of Justice. Hoffmann J L (2007) Globarization and Japanese criminal law. In: Foote D H (ed.), Law in Japan: A turning point. Seattle, WA: University of Washington Press, 334-342. Homusogokenkyujo (2007) Kenkyubuhokoku 35 - judaijihanshonen no jittai to shogu (dai 2 hokoku) -. Tokyo, Japan: Japanese Ministry of Justice. Hornby Zeller Associates (2018) The cost of raising the age of juvenile justice in Michigan: Final report: State of Michigan Legislative Council Criminal Justice Policy Commission. Hoseishingikai (2018) Shonenho・keijiho (shonennenrei・hanzaisyashogukankei)bukai dai11kaikaigi. Tokyo, Japan: Japanese Ministry of Justice (in Japanese). Illinois Juvenile Justice Commission (2013) Raising the age of juvenile court jurisdiction: The future of 17-year-olds in Illinois' justice system. Chicago, IL: Illinois Juvenile Justice Commission. Independent Democratic Conference (2016) The price of juvenile justice: Why raising the age makes cents for New York. New York, NY: Independent Democratic Conference. 23 Japan Federation of Bar Associations. (2015). Shonenho no 'seijin' nenreihikisage nikansuru ikensyo (in Japanese). Accessed 22 November, 2018, from https://www.nichibenren.or.jp/activity/document/opinion/year/2015/150220_2.html Japan Federation of Bar Associations. (2018). Shonenho niokeru 'shonen' no nenrei wo 18saimiman tosurukotoni hantaisuru ikensyo (in Japanese). Accessed 22 November, 2018, from https://www.nichibenren.or.jp/activity/document/opinion/year/2018/181121_3.html Japan Federation of Bar Associations. (2019). Shonenho no tekiyonenreihikisage ni hantaishi, shodantaito to renkeishite korenitorikumu ketugi (in Japanese). Accessed 15 June, 2019, from https://www.nichibenren.or.jp/activity/document/assembly_resolution/year/2019/2019 _2.html?fbclid=IwAR0h7E_c6979L3hb3tPz0O_DameeVYAOKfbudKnMbkJOlMlkj 6aFFoerr94 Japanese Criminal Law Scholars. (2015). Shonenho tekiyoutaisyonerei no hikisage ni hantaisuru keijihokenkyusha no seimei (in Japanese). Accessed 22 November, 2018, from https://sites.google.com/site/juvenilelaw2015/ Japanese Criminal Law Scholars. (2018). Shonen ho no jogen tonaru nenrei wo hikisagerutameno hokaisei wo okonaukotoni hantaisuru keijihokenkyusha no seimei (in Japanese). Accessed 22 November, 2018, from https://sites.google.com/view/juvenilelaw2018/%E8%A6%81%E6%97%A8?authuser =0 Japanese Ministry of Justice (2016) 'Jakunensya nitaisuru keijihosei no arikata nikansuru benkyokai': Torimatome hokokusho. Tokyo, Japan: Japanese Ministry of Justice (in Japanese). 24 Jensen E L and Metsger L K (1994) A test of the deterrent effect of legislative waiver on violent juvenile crime. Crime & Delinquency 40(1): 96-104. Justice Policy Institute (2017) Raise the age: Shifting to a safer and more effective juvenile justice system. Washington, D.C.: Justice Policy Institute. Kawade T (2015) Shonenho no tekiyonenreihikisage wo meguru giron. Keijiho Janaru 46: 3 (in Japanese). Konishi T (2013) Diversity witin an Asian country: Japanese criminal justice and criminology. In: Liu J, Hebenton B and Jou S (eds.) Handbook of asian criminology. New York, NY: Springer, 213-222. Kupchik A (2007) The correctional experiences of youth in adult and juvenile prisons. Justice Quarterly 24(2): 247-270. Kuzuno H (2005) Juvenile diversion and the get-tough movement in Japan. Ryukoku Law Review 22: 1-21. Loeber R, Hoeve M, Farrington D P, Howell J C, Slot N W and van der Laan P H (2012) Overview, conclusions, and policy and research recommendations. In: Loeber R, Hoeve M, Slot N W and van der Laan P H (eds.) Persisters and desisters in crime from adolescence into adulthood. Surrey, UK: Ashgate, 335-412. Loeffler C E and Chalfin A (2017) Estimating the crime effects of raising the age of majority: Evidence from Connecticut. Criminology & Public Policy 16(1): 45-71. Loeffler C E and Grunwald B (2015) Decriminalizing delinquency: The effect of raising the age of majority on juvenile recidivism. Journal of Legal Studies 44(2): 361-388. Loomis-Gustafson C (2017) Adjusting the bright-line age of accountability within the criminal justice system: Raising the age of majority to age 21 based on the conclusions of scientific studies regarding neurological development and culpability of young-adult offenders. Duquesne Law Review 55(1): 221-246. 25 Louisiana Youth Justice Coalition (2016) A common-sense plan for safer communities: Include 17-year-olds in juvenile court. Baton Rouge, LA: Louisiana Youth Justice Coalition. Lount S A, Hand L, Purdy S C and France A (2018) Tough talk: Youth offenders’ perceptions of communicating in the youth justice system in New Zealand. Australian & New Zealand Journal of Criminology 51(4): 593-618. Maruyama M (2017) Shonenhotekiyonenrei no hikisagehihan. Meijo Hogaku 67: 123-151 (in Japanese). Matsui S (2011) Justice for the accused or justice for victims? The protection of victims' rights in Japan. Asian-Pacific Law & Policy Journal 13(1): 54-95. McDiarmid C (2013) An age of complexity: Children and criminal responsibility in law. Youth Justice 13(2): 145-160. McGowan A, Hahn R, Liberman A, Crosby A, Fullilove M, Johnson R, Moscicki E, Price L, Snyder S, Tuma F, Lowy J, Briss P, Cory S and Stone G (2007) Effects on violence of laws and policies facilitating the transfer of juveniles from the juvenile justice system to the adult justice system. American Journal of Preventive Medicine 32(4): 7-28. Miyazawa S (2008) The politics of increasing punitiveness and the rising populism in Japanese criminal justice policy. Punishment & Society 10(1): 47-77. Modecki K L (2008) Addressing gaps in the maturity of judgment literature: Age differences and delinquency. Law and Human Behavior 32(1): 78-91. Moriya K (2018) Shonenho kaisei no rekishi to nenreihikisage. Horitsujiho 90(4): 4-9 (in Japanese). Murrie D C, Henderson C E, Vincent G M, Rockett J L and Mundt C (2009) Psychiatric symptoms among juveniles incarcerated in adult prison. Psychiatric Services 60(8): 1092-1097. 26 National Prison Rape Elimination Commission (2009) National prison rape elimination commission report. Washington D.C.: National Prison Rape Elimination Commission. Ng I Y H, Sarri R C, Shook J J and Stoffregen E (2012) Comparison of correctional services for youth incarcerated in adult and juvenile facilities in Michigan. The Prison Journal 92(4): 460-483. Ng I Y H, Shen X, Sim H, Sarri R C, Stoffregen E and Shook J J (2011) Incarcerating juveniles in adult prisons as a factor in depression. Criminal Behaviour and Mental Health 21(1): 21-34. Osaki Y (2017) Wagakuni niokeru shohensihoseido no genjo to shonenho tekiyonenrei no hikisage nikansuru kadai. Refarensu 67(10): 1-28 (in Japanese). Otsuka E (2018) Shonenhotekiyojogennenrei no hikisage: Shinken no rikai to hikosHonen no tokusei no sitenkara. Kyoiku Gabanansu Kenkyu 1: 59-66 (in Japanese). Prior D, Farrow K, Hughes N, Kelly G, Manders G, White S and Wilkinson B (2011) Maturity, young adults and criminal justice: A literature review. Birmingham, UK: Institute of Applied Social Studies, School of Social Policy, University of Birmingham. Pruin I and Dünkel F (2015) Better in Europe? European responses to young adult offending: Full report. London, UK: Barrow Cadbury Trust. Raise the Age NY. (n.d.). Accessed November 24, 2018, from http://raisetheageny.com/ Redding R E (2008) Juvenile transfer laws: An effective deterrent to delinquency? Washington D.C.: U.S. Department of Justice. Risler E A, Sweatman T and Nackerud L (1998) Evaluating the Georgia legislative waiver's effectiveness in deterring juvenile crime. Research on Social Work Practice 8(6): 657-667. 27 Ryan T (2005) Creating ‘problem kids’: Juvenile crime in Japan and revisions to the juvenile act. AnJel Journal of Japanese Law 19: 153-188. Saito T (2018) Shonenho no nenreihikisage no rekishitekisuimyaku. Kikan Keijibengo 93: 142-146 (in Japanese). Sasaki M (2016) Shonenho 'tekiyonenreihikisage' mondai to kodomo no kenrihosyo. Kodomo no Kenri Kenkyu 27: 36-46 (in Japanese). Schwarzenegger C (2003) The debate about the reform of the juvenile law in Japan. In: Foljanty-Jost G (ed.), Juvenile delinquency in Japan: Reconsidering the "crisis". Leiden, Netherlands: Brill, 173-198. Sharlein J (2018) Beyond recidivism: Investigating comparative educational and employment outcomes for adolescents in the juvenile and criminal justice systems. Crime & Delinquency 64(1): 26-52. Singer S I and McDowall D (1988) Criminalizing delinquency: The deterrent effects of the New York juvenile offender law. Law & Society Review 22(3): 521-535. Steinberg L (2008) A social neuroscience perspective on adolescent risk-taking. Developmental Review 28(1): 78-106. Steinberg L, Albert D, Cauffman E, Banich M, Graham S and Woolard J (2008) Age differences in sensation seeking and impulsivity as indexed by behavior and self- report: Evidence for a dual systems model. Developmental psychology 44(6): 1764- 1778. Steinberg L and Cauffman E (1996) Maturity of judgment in adolescence: Psychosocial factors in adolescent decision making. Law and Human Behavior 20(3): 249-272. Steiner B, Hemmens C and Bell V (2006) Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws enacted post-1979. Justice Quarterly 23(1): 34-59. 28 Suzuki M and Otani A (2017) Myths of restorative features in the Japanese justice system and society: The role of apology, compensation and confession, and application of reintegrative shaming. Restorative Justice 5(2): 158-177. Suzuki M, Pai C-F and Islam M J (2018) Systematic quantitative literature review on criminological theories in Asia. Asian Journal of Criminology 3(2): 129-151. Takeuchi K (2015a) Shonenhotekiyonenrei ha hikisagerarerubekika. Jiyu to Seigi 60(10): 11- 16 (in Japanese). Takeuchi k (2015b) Shonenhotekiyonenrei no hikisage. Horitsu Jiho 87(22): 1-3 (in Japanese). Takeuchi K (2017a) Kenjiho karano kento: Shonenho no tekiyonenreihikisage no giron to 18saisenkyoken tono kankei. Hogaku Semina 744: 21-26 (in Japanese). Takeuchi K (2017b) Shonenho nichidokuhikaku: 'Tekiyonenreihikisage' nitsuite kangaeru. Sekai no Jido to Bosei 81: 64-68 (in Japanese). Takumi M (2017) Shonenho no tekiyonenrei hikisage wo meguru giron. Chosa to Joho 963: 1-14 (in Japanese). Taylor M (2015) Juvenile transfers to adult court: An examination of the long-term outcomes of transferred and non-transferred juveniles. Juvenile and Family Court Journal 66(4): 29-47. The Japanese Society of Psychiatry and Neurology. (2019). Shonenho"kaisei" nikansuru seimei (in Japanese). Accessed 15 June, 2019, from https://www.jspn.or.jp/uploads/uploads/files/activity/20190611.pdf Thomas J (2017) Raising the bar: State trends: In keeping youth out of adults courts (2015- 2017). Washington D.C.: Campaign for Youth Justice. 29 Viljoen J L, McLachlan K, Wingrove T and Penner E (2010) Defense attorneys' concerns about the competence of adolescent defendants. Behavioral Sciences and the Law 28(5): 630-646. Washington State Institute for Public Policy (2014) The effectiveness of declining juvenile court jurisdiction of youth. Washington D.C.: Washington State Institute for Public Policy. Washino K (2017) Kindaisyonenhosei niokeru miseinennenrei: Kyukeihojidai kara syowasyonenhouseitei made. Hikakuhosei Kenkyu 40: 35-69. Williams R (2015) Raising the age of juvenile court jurisdiction. LegisBrief 23(39): 1-2. Yoshida T (2003) The future of the Japanese criminal justice system. In: Walgrave L (ed.), Repositioning restorative justice. Devon, UK: Willan Publishing, 328-338. Zane S N, Welsh B C and Mears D P (2016) Juvenile transfer and the specific deterrence hypothesis: Systematic review and meta-analysis. Criminology & Public Policy 15(3): 901-925. Zelle H, Romaine C L R and Goldstein N E S (2015) Juveniles' Miranda comprehension: Understanding, appreciation, and totality of circumstances factors. Law and Human Behavior 39(3): 281-293. 
work_glsl52klarby5jup2536uzv3cq	----	11211_2007_31_20_1-web 1..9 Tilburg University Justice and feelings De Cremer, D.; van den Bos, K. Published in: Social Justice Research Publication date: 2007 Document Version Publisher's PDF, also known as Version of record Link to publication Citation for published version (APA): De Cremer, D., & van den Bos, K. (2007). Justice and feelings: Toward a new era in justice research. Social Justice Research, 20(1). General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. apr. 2021 https://research.tilburguniversity.edu/en/publications/4cb9d618-3228-4b82-b10b-4fc91566a7ba Justice and Feelings: Toward a New Era in Justice Research David De Cremer1,3 and Kees van den Bos2 In this special issue, the relationship between feelings and justice and its con- sequences are highlighted. Five articles discuss the role that affect, feelings, and emotions play in justice processes across a variety of social settings. In the present introductory article, the position of past and present justice research in relationship to these topics is briefly reviewed. In addition, reasons are outlined to show why a focus on these issues may be pivotal for a better understanding of social justice and how this may pave the way for a new, more process-oriented era in social justice research, focusing more on ‘‘hot’’ cognitive aspects as they pertain to social justice concerns. KEY WORDS: justice; emotions; feelings; affect. Justice is essential to our social functioning as is indicated by the fact that the concept of justice (as well as its violation) often dominates our daily experiences and discussions (e.g., Finkel, 2001; Folger, 1984). Indeed, people often talk about the good and bad things they encounter in their social interactions and frame them as instances of justice versus injustice. Instances of justice take a variety of forms and researchers have throughout the last few decades devoted much attention to distinguishing among different ‘‘types’’ of justice (e.g., Bies & Moag, 1986; Greenberg & Colquitt, 2005; Thibaut & Walker, 1975). More precisely, justice involves issues of 1Department of Social Psychology, Tilburg University, P.O. Box 90153, 5000-LE Tilburg, The Netherlands. 2Utrecht University, Utrecht, The Netherlands. 3Address correspondence to: David De Cremer, Department of Social Psychology, Center of Justice and Social Decision Making, P.O. Box 90153, 5000-LE Tilburg, The Netherlands., e-mail: d.decremer@uvt.nl, www.centerofjust.com Social Justice Research, Vol. 20, No. 1, March 2007 (� 2007) DOI: 10.1007/s11211-007-0031-2 1 0885-7466/07/0300-0001/0 � 2007 Springer Science+Business Media, LLC distribution, treatment, formal and informal decision-making procedures, and so forth. This variety of justice instances has been reflected in the scientific use of concepts such as distributive, procedural, and interactional justice. Concerns about social justice go back to ancient moral philosophers like Plato and Socrates (Rawls, 1971), so by now it is no surprise that we have accumulated an impressive amount of studies addressing a variety of justice issues (for reviews, see, e.g., Brockner & Wiesenfeld, 1996; De Cremer & Tyler, 2005; Folger & Cropanzano, 1998; Greenberg & Colquitt, 2005; Miller, 1999; Tyler & Smith, 1998; Van den Bos & Lind, 2002). All these studies have shown that social justice reveals important conse- quences and that social psychological processes and factors play an important role. Indeed, the observation of justice concerns (as we encounter them in our daily experiences) has been shown to emerge also in more controlled labora- tory settings, so that we are now in a position to focus more directly on the social psychological processes that explain why people direct attention to justice and how they use information about justice (Van den Bos, 2001). As such, research on social psychology is now in a position to demonstrate that social-cognitive and motivational processes underlie the formation of justice judgments and reactions toward justice versus injustice (De Cremer & Tyler, 2005; Van den Bos & Lind, 2002). Thus, it is clear that justice matters and that people care about justice for a variety of reasons (i.e., people may even defend the view that justice is omnipresent and that the pursuit of justice is in itself a guiding and moral directive in our social lives; Montada, 2003). However, it is fair to note that by assuming that a justice motive is simply present, less attention is devoted to the initial psychological processes that determine whether people evaluate fairness or not, or, in other words, to the processes that make us understand why people evaluate instances of justice or injustice in the first place (Lerner, 2003). As noted earlier, social psychological research has shown that certain deliberative and motivational processes guide evaluations of justice, but, in our view this approach does not emphasize sufficiently that the issue of determining justice or injustice is often a matter of intuition and feeling. In making this claim, we thus agree with the view of emotion researchers that ‘‘openness to feelings is a useful and even necessary, adjunct to rationality and to effective social thinking (Damasio, 1994)’’ (Forgas, 2000, p. 1). In the present special issue, we focus our attention on the role that feelings play in the social psychology of justice. Feelings can be referred to as phenomenological states that have an affective or experiential dimension that is reflected in terms of the emotions that people feel (e.g., anger, sadness, joy, and so forth; see Watson, 2000). Thus, one specific psychological seems to have been ignored in empir- ical justice research is the role of feelings. This observation is not new, as illustrated by a rapidly growing number of quotes by justice researchers stressing the importance of emotions. For example, with respect to the status 2 Cremer and Bos of emotions in justice research, Weiss et al. (1999) argue that, ‘‘the relative lack of empirical research assessing emotional reactions to conditions of unfairness is a serious omission.’’ (p. 786,), whereas Bies and Tripp (2002) note; ‘‘to understand justice in organizations, one must understand the events that arouse the sense of injustice – the emotions of injustice’’ (pp. 204–205). Moreover, with respect to the role that emotions play, Barclay et al. (2005, p. 629) very recently observed that, ‘‘although previous justice theories and research suggest emotions are part of the relationship between the experience of injustice and the tendency to retaliate ...little empirical research has examined the mediating role of emotion.’’ Although the worries of these researchers seems to indicate that more and more attention will be directed to the emotional basis of justice, it is disappointing to see that this subject does take a central role in theoretical accounts of justice, but that currently still few attempts are undertaken to translate researchers’ conceptual thinking on justice and emotions into the practice of scientific studies. As we mentioned already, a closer focus on the relationship between emotions and justice seems warranted, particularly if one looks briefly at the history of human justice and morality. Philosophers such as Aristotle and Hume already emphasized the role that emotions play in affecting deliberative processing of justice and morality issues in our social environment (e.g., Hume, 1739/1992; Lyons, 1999). These philosophical ideas have to be seen in the perspective of the debate about whether justice and morality have a rational or a more intuitive basis (e.g., Haidt, 2001; Kant, 1959). In those days, rationalists assumed that our ability to cognitively deliberate social information differentiates us from other species and makes us superior, also in a moral way. In this process, emotions were sometimes seen as having an undesirable influence on our cognitions and way of thinking about morality and justice. Nevertheless, the discussion about the valued role of emotions continued and was also picked up in the 20th century when Adams (1965), a management researcher, introduced equity theory. In this theory, it was explicitly acknowledged that people could feel anger and resentment when being awarded in an unfair and disadavantageous manner. Around the same time, the sociologist Homans (1961) also discussed the issue of distributing outcomes and rewards and emphasized the role of anger and guilt. Despite these references to emotional influences most justice research (that was stirred very much by the work of Adams) remained a focus on attitudinal and behavioral reactions. In the 1980s and 1990s the work of Bies (1987) showed that the sense of injustice led people to experience intense emotional states that one could not easily relieve, which Folger and Cropanzano (1998) referred to as moral outrage. In the present special issue, we thus focus our attention on the role of the experience of emotions when it comes to issues of social justice. We hasten to add, however, that our promotion of a more emotional perspective 3Justice and Feelings on justice issues does not imply that cognition does not play a role. In fact, there is an abundance of evidence available in social psychology demon- strating that both cognition and affect often interact in predicting human behavior (Forgas, 2000) and justice judgments (Van den Bos, 2003). Also, evolutionary psychology sees both psychological components as interrelated as indicated by their idea that emotions are an important component of our cognitive architecture responsible for directing and guiding our actions (Cosmides & Tooby, 1992). Thus, it is not our intention to claim that cog- nition does not play a role. On the contrary, we think that more process- oriented research is needed in order to better understand how people form justice judgments (Van den Bos & Lind, 2002), and hence we would applaud a special issue on the social-cognitive aspects of justice judgment processes as well. This said, we also think it is important to simultaneously stress several reasons why a focus on emotions and feelings is also needed. First, because much justice research had (and still has) a strong focus on behavioral consequences (e.g., Brockner & Wiesenfeld, 1996), it follows logically to include a focus on emotions. That is, prior justice research has shown that negative emotions instigate actions such as protest, revenge, absenteeism, and turnover (Bies & Tripp, 2002; Griffin, O’ Leary-Kelly, & Collins, 1998; Skarlicki & Folger, 1997). This effect of emotions on behavior has also been articulated in the affective events theory (Weiss & Cropanzano, 1996) that argues that emotions can affect behavior directly (affect-driven actions) or indirectly (judgment-driven actions). Further, emotions are evaluative states although that are associated with some object, person, or event of relatively short duration (Frijda, 1993; Larsen, et al. 2002), they do have consequences for people’s actions and behaviors, referred to as action tendencies (Izard, 1993). Thus, emotions are elicited by external situations and are subjectively experienced, leading people to determine whether the emotion has a positive or negative valence, how intense the emotion is (Russell, 1980), and which discrete form the emotion takes (e.g., anger or guilt; Lerner & Keltner, 2000). Once the valence, intensity, and form of the discrete emotion are clarified, the experience is connected to a person or situation, which instigates actions (Frijda, 1993). Second, as already suggested, justice is not only a judgment but can also represent an intuition or feeling. Indeed, often people’s judgments of whe- ther a decision or treatment is fair follows from how they feel about the social instance at hand; that is, they seem to experience justice first and then make up their mind about it (see also Haidt, 2001 for a similar line of reasoning with respect to the issue of morality). In a similar vein, Chebat and Slusarczyk (2005, p. 665) recently noted that ‘‘individuals do not cal- culate justice. They rather experience a justice-related emotion and react to their emotion.’’ Thus, in line with these authors, we believe that identifying the role of emotions in justice can help us in highlighting the subjective and 4 Cremer and Bos intuitive nature of justice judgments in general and in specific situations. In fact, instances of injustice may first activate some kind of ‘‘emotional deliberation’’ before judgments, decisions, and actions are given shape. Third, as indicated earlier, discrete emotions such as anger and frus- tration are evoked by persons, situations, and other social events. The elic- itation of these discrete emotions means that they help us to appraise or evaluate the situation at hand. Indeed, Lerner, Small, and Loewenstein (2004, p. 337) note that discrete emotions elicit specific appraisals that form ‘‘an implicit lens for interpreting subsequent situations.’’ Thus, social situ- ations and events receive meaning through this appraisal process. As a result, depending on the specific emotion evoked, situations can be seen as more versus less unfair. To date, not much attention has been given to emotion- related influences on the justice judgment process (for some exceptions to this statement, see, e.g., De Cremer, 2006; Sinclair & Mark, 1991, 1992; Van den Bos, 2003). Mikula et al. (1998, p. 771) also noted that ‘‘injustice or unfairness are rarely mentioned explicitly by appraisal theorists, whereas Ellsworth and Scherer (2003) more recently have noted that an important social dimension that may elicit discrete emotions includes the evaluation of justice or equity. From this perspective, these authors suggest that justice in itself may serve as an evaluative standard or appraisal that may shape emotional reactions in terms of form, valence, and intensity. Clearly, the role of discrete emotions in the psychology of justice needs to be taken into account. It seems clear that justice researchers have to take responsibility to include emotional expressions of people’s feelings (implicit, explicit, as a dependent or independent variable and so forth) into their empirical enterprises in order to further refine and deepen our understanding of the phenomenon that we refer to as social justice. In the present special issue we brought together a series of papers that address the relationship between feelings and justice in a variety of social settings. These authors all review relevant research focusing on the emotional basis of justice and the possible consequences of this relationship. Interestingly, although our authors approach this topic from different backgrounds (social psychology, man- agement, economics, morality, and philosophy) they arrive at quite similar conclusions, namely that justice and emotions have to be seen as closely connected. The first paper by Tripp, Bies, and Aquino focuses on how emotions play a role in determining actions as a result of injustice in the workplace. According to these authors, acts of injustice can also be repaired in a positive way (i.e., related to issues of reconciliation and forgiveness) rather than in negative ways, such as taking revenge. Moreover, this paper sheds a clear view on how managers should deal with injustice and possibly vengeful acts committed in the workplace. 5Justice and Feelings The second paper, by van Winden, discusses recent research in the field of economics addressing the role of emotions in interdependent negotiation situations. In doing this, the author reviews experimental findings on the ‘‘power-to-take’’ game and focuses on how fairness is defined and approached by economists as well as which emotions (e.g., shame, guilt) play a role in negotiations. This article also provides insightful information about how economists have looked at emotions in the past and how their current perspective seems to change (thereby promoting a useful collaboration between psychology and economics; see also De Cremer et al., 2006). The third paper, by Stouten, De Cremer, and Van Dijk, focuses on the emotional and retributive implications of violations of coordination rules in symmetric public good dilemmas. The paper notes that research examining emotional and retributive reactions to violations of the equality rule by a fellow group member reveal that equality indeed is related to people’s per- sonal values and of what they consider to be fair. The paper further states that a violation of the equality rule results in emotional reactions, and these emotional experiences encourage further retributive actions. Furthermore, the authors describe the different reactions to equality violation as a func- tion of three features: (1) motives to use equality, (2) attributions for explaining the violation, and (3) the honesty of the given explanation. The fourth paper, by Opotow and McClelland, discusses hate from a variety of analytical and scientific viewpoints, including psychoanalytic, social psychological, and criminal justice literatures. Following these view- points the paper proposes a theory of hate that is interdisciplinary and spans levels of analysis. Their theoretical development has strong implications for how we may broaden our thinking about hate, and how we should study hate. The fifth paper, by Haidt and Graham, focuses on the possibility that ‘‘morality opposes justice’’ and suggests that conservatives may have moral intuitions that liberals may not recognize. More specifically, the authors note that researchers in moral psychology and social justice have agreed that morality is about matters of harm, rights, and justice. As a result of this conceptualization of morality, conservative opposition to social justice programs has appeared to be immoral and has been explained as a product of various non-moral processes. Haidt and Graham argue, however, that the moral domain is usually much broader, encompassing many more aspects of social life and valuing traditional institutions as much or more than indi- vidual liberties. The authors go on to present theoretical and empirical reasons for believing that there are in fact five psychological systems that provide the foundations for the world’s many moral codes. The five foun- dations are psychological preparations for caring about and reacting emo- tionally to harm, reciprocity (including justice, fairness, and rights), ingroup, hierarchy, and purity. According to Haidt and Graham, political liberals 6 Cremer and Bos have moral intuitions primarily based upon the first two foundations, and therefore misunderstand the moral motivations of political conservatives, who generally rely upon all five foundations. Taken together, the five articles included in this special issue on justice and feelings take different angles and very different perspectives. With this special issue we hope to have contributed to what, in addition to more process-oriented studies, is an important subject for future social justice research, namely the study of justice and feelings. ACKNOWLEDGEMENTS The preparation of this article was supported by a fellowship from the Netherlands Organization for Scientific Research (NWO) awarded to the first author (Grant No. 016-005.019) and a VICI innovational research grant from the same organization awarded to the second author (Grant No. 453.03.603). REFERENCES Adams, J. S. (1965). Inequity in social exchange. In Berkowitz, L. (ed.), Advances in Experimental Social Psychology, Vol. 2, Academic Press, New York, pp. 267–299. Barclay, L. J., Skarlicki, D. P., and Pugh, S. D. (2005). Exploring the role of emotions in injustice perceptions and retaliation. J. Appl. Psychol., 90, 629–643. Bies, R. J. (1987). The predicament of injustice: The management of moral outrage. In Cummings, L. L. and Staw, B. M. (eds.), Research in Organizational Behavior, Vol. 9, JAI Press, Greenwich, CT, pp. 289–319. Bies, R. J., and Moag, J. S. (1986). Interactional justice: Communication criteria of fairness. In Lewicki, L. R., Bazerman, M. and Sheppard, B. (eds.), Research on Negotiation in Organizations, Vol. 1, JAI Press, Greenwich, CT, pp. 43–55. Bies, R. J., and Tripp, T. M. (2002). ‘‘Hot flashes, open wounds’’: Injustice and the tyranny of its emotions. In Steiner, D. D., Skarlicki, D. P. and Gilliland, S. W. (eds.), Emerging Perspectives on Managing Organizational Justice, Information Age Publishing, Greenwich, Connecticut, pp. 203–221. Brockner, J., and Wiesenfeld, B. M. (1996). An integrative framework for explaining reactions to decisions: Interactive effects of outcomes and procedures. Psychol. Bull., 120, 189–208. Chebat, J.-C., and Slusarczyk, W. (2005). How emotions mediate the effects of perceived justice on loyalty in service recovery situations: an empirical study. J. Bus. Res., 58, 664–673. Cosmides, L., and Tooby, J. (1992). Cognitive adaptations for social exchange. In Barkow, J. H., Cosmides, L. and Tooby, J. (eds.), The adapted mind: Evolutionary psychology and the generation of culture, Oxford University Press, New York, pp. 163–228. Damasio, A. R. (1994). Descartes’ error, New York: Grosset/Putnam. De Cremer, D. (2006). Discrete emotions and procedural fairness effects on self-esteem: The role of certainty versus uncertainty-related emotions, the Netherlands: Unpublished manuscript, Tilburg University. De Cremer, D. , and Tyler, T. R. (2005). Managing group behavior: The interplay between procedural justice, sense of self, and cooperation. In Zanna, M. (ed.), Advances in Experimental Social Psychology, Vol. 37, Academic Press, New York, NY, pp. 151–218. De Cremer, D. , Zeelenberg, M., and Murnighan., J. K. (2006). Social Psychology and Economics, Mahwah, New Jersey: Lawrence Erlbaum. 7Justice and Feelings Ellsworth, P. C., and Scherer, K. R. (2003). Appraisal processes in emotion. In Davidson, R. J., Scherer, K. R. and Goldsmith, H. H. (eds.), Handbook of Affective Sciences, Oxford University Press, New York, pp. 572–595. Finkel, N. J. (2001). Not fair! The Typology of Commonsense Unfairness, Washington, DC: American Psychological Association. Folger, R. (1984). Preface. In Folger, R. (ed.), The Sense of Injustice: Social Psychological Perspectives, Plenum, New York, pp. ix–x. Folger, R., and Cropanzano, R. (1998). Organizational Justice and Human Resource Manage- ment, Thousand Oaks, CA: Sage Publications, Inc. Forgas, J. P. (2000). Feeling and Thinking: The Role of Affect and Social Cognition, Cambridge, UK: Cambridge University Press. Frijda, N. (1993). Moods, emotion episodes, and emotions. In Lewis, M. and Haviland, I. M. (eds.), Handbook of Emotions, Guilford Press, New York, pp. 381–403. Greenberg, J., and Colquitt, J. A. (2005). Handbook of Organizational Justice, Mahwah, New Jersey: Lawrence Erlbaum Associates. Griffin, R. W., Leary-Kelly, O’ A., and Collins, J. M. (1998). Dysfunctional Behavior in Organizations: Violent and Deviant Behavior: Part A, Stamford: JAI Press. Haidt, J. (2001). The emotional dog and its rational tail: A social intuitionist approach to moral judgment. Psychol. Bull., 108, 814–834. Homans, G. C. (1961). Social Behavior: Its Elementary Forms, New York: Harcourt, Brace, and World. Hume, D. (1739/1992). Treatise of human nature, Buffalo, Prometheus Books. Izard, C. E. (1993). Four systems for emotion activation: Cognitive and noncognitive processes. Psychol. Rev., 100, 68–90. Kant, I. (1959). Foundations of the metaphysics of morals (L. W. Beck, translation), Indianapolis, IN: Bobbs-Me. Larsen, R. J., Diener, E., and Lucas, R. E. (2002). Emotion: Models, measures, and individual differences. In Lord, R. G., Klimoski, R. J. and Kanfer, R. (eds.), Emotions In the Workplace, Jossey-Bass, San Fransisco, pp. 64–106. Lerner, M. J. (2003). The justice motive: Where social psychologists found it, how they lost it, and why they may not find it again. Pers. Soc. Psychol. Rev., 7, 388–399. Lerner, J. S., and Keltner, D. (2000). Beyond valence: Toward a model of emotion-specific influences on judgment and choice. Cognition and Emotion, 14, 473–493. Lerner, J. S., Small, D. A., and Loewenstein, G. (2004). Heart strings and purse strings: Carryover effects of emotions and economic decisions. Psychol. Sci., 15, 337–341. Lyons, W. (1999). The philosophy of cognition and emotion. In Dalgleish, T. and Pwer, M. J. (eds.), Handbook of Cognition and Emotion, John Wiley and Sons, Chichester, pp. 21–44. Mikula, G., Scherer, K. R., and Athenstaedt, U. (1998). The role of injustice in the elicitation of differential emotional reactions. Pers. Soc. Psychol. Bull., 24, 769–783. Miller, D. (1999). Principles of Social Justice, Cambridge, Massachusetts: Cambridge University Press. Montada, L. (2003). Justice, equity, and fairness in human relations. In Millon, T., Lerner, M. J. and Weiner, I. B. (eds.), Handbook of Psychology: Personality and Social Psychology, Vol. 5, John Wiley & Sons, New Jersey, pp. 537–568. Rawls, J. (1971). A Theory of Justice, Cambridge Massachusetts: Harvard University Press. Sinclair, R. C., and Mark, M. M. (1991). Mood and the endorsement of egalitarian macrojustice versus equity-based microjustice principles. Pers. Soc. Psychol. Bull., 17, 369–375. Russell, J. A. (1980). A circumplex model of affect. J. Pers. Soc Psychol., 39, 1161–1178. Sinclair, R. C., and Mark, M. M. (1992). The influence of mood state on judgment and action: Effects on persuasion, categorization, social justice, person perception, and judgmental accuracy. In Martin, L. and Tesser, A. (eds.), The Construction of Social Judgments, Erlbaum, Hillsdale, NJ, pp. 165–193. Skarlicki, D. P., and Folger, R. (1997). Retaliation in the workplace: The roles of distributive, procedural, and interactional justice. J. Appl. Psychol., 82, 434–443. Thibaut, J., and Walker, L. (1975). Procedural Justice: A psychological Analysis, Hillsdale, NJ: Erlbaum. 8 Cremer and Bos Tyler, T. R., and Smith, H. J. (1998). Social justice and social movements. In Gilbert, D. T. and Fiske, S. T. (eds.), Handbook of Social Psychology, (4th ed. McGraw-Hill, New York, NY. Van den Bos, K (2001). Fundamental research by means of laboratory experiments is essential for a better understanding of organizational justice. J. Vocat. Behav., 58, 254–259. Van den Bos, K. (2003). On the subjective quality of social justice: The role of affect as information in the psychology of justice judgments. J. Pers. Soc. Psychol., 85, 482–498. Van den Bos, K. , and Lind, E. A. (2002). Uncertainty management by means of fairness judgments. In Zanna, M. P. (ed.), Advances in Experimental Social Psychology, Vol. 34, Academic Press, Inc, San Diego, CA, pp. 1–60. Watson, D. (2000). Mood and Temperament, New York: Guilford Press. Weiss, H. M., and Cropanzano, R. (1996). An affective events approach to job satisfaction. In Staw, B. M. and Cummings, L. L. (eds.), Research in Organizational Behavior, Vol. 18, JAI Press, Greenwich, CT, pp. 1–47. Weiss, H. M., Suckow, K., and Cropanzano, R. (1999). Effects of justice conditions on discrete emotions. J. Appl. Psychol., 84, 786–794. 9Justice and Feelings << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (None) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedJobOptions true /DSCReportingLevel 0 /SyntheticBoldness 1.00 /EmitDSCWarnings false /EndPage -1 /ImageMemory 524288 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveEPSInfo true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /ColorImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org?) /PDFXTrapped /False /Description << /DEU <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> /ENU <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> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [2834.646 2834.646] >> setpagedevice 
work_glyzbc26nfcrhfj5sadyatfuhi	----	Criminal Justice In Malawi JOURNAL OF AFRICAN LAW Vol. XI Autumn 1967 No. 3 NOTES AND NEWS CRIMINAL JUSTICE IN MALAWI Introduction On the last day of October, 1966, the President of the Republic of Malawi, Dr. H. Kamuzu Banda, appointed a Commission to enquire into criminal justice in Malawi. The Commission was asked to enquire into the existing practice, procedure and rules of evidence followed both in the High Court and under local customary law. Recommendations were asked for so as to simplify practice, procedure and the rules of evidence in the courts of Malawi with a view to achieving a more expeditious, efficient and uniform administration of justice, without undue regard to techni- calities. The Commission was also invited to make such other recommendations for the better administration ofjustice as it thought desirable. The terms of reference in each case confined the Commis- sion to the field of criminal justice. The President appointed a very strong, experienced and distin- guished Commission. The Chiefjustice was Chairman, and the other members were the Attorney-General, the leader of the Nominated Members of Parliament (who is also the Chairman of the Malawi Law Society), three Chiefs, one from each of the three Regions of the country, and the Chairman of the Blantyre Local Court. The Commission completed its enquiries and submitted its report to the President within four months of being appointed. During the early part of this period the three Chiefs and the Chairman of the Blantyre Local Court toured the country and prepared an exposition of customary law relating to criminal matters. The President's instructions to this Committee were "that they should go all over the country and find out from the people the way things were done in the old days and at the same time how things are done now, and compare the two". The Report of the Presidential Commission was laid before Parliament1 and a motion to accept it was unanimously carried on April 3rd, 1967.2 The substance of the Report may conveniently be divided into four parts: the investigation and prosecution of cases, the courts of justice, procedure and evidence, and miscellaneous recommendations. 1 Report of the Presidential Commission on Criminal Justice, February, 1967. 1 Hansard, Malawi Parliament, Fourth Session, Fourth Meeting. April 3rd, 1967. 147 https://doi.org/10.1017/S0021855300005064 Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:34, subject to the https://doi.org/10.1017/S0021855300005064 https://www.cambridge.org/core/terms https://www.cambridge.org/core 148 Notes and News [ig67]J.A.L. The Investigation and Prosecution of Gases The Commission recognised that a shortage of police officers sufficiently trained and experienced in criminal investigation and in prosecution was leading to delay and to defective and incomplete investigation. Magistrates complained of the inexperience of some police officers in presenting evidence and in knowing which points to emphasise and which to ignore. The Commission therefore recommended the appointment of a suitably qualified Criminal Investigation Department Training Officer, and the setting up of a specialised Fraud Squad within the C.I.D., with a director, an accountant and supporting staff. They also recommended the securing of the services of an officer qualified to speak as an expert in both ballistics and hand-writing, and of a police surgeon so as to reduce calls on the time of other medical officers. To avoid the dangers of loss of capable officers because promotion appointments lie only within the general promotion structure of the police force, the Commission recommended that a special Prosecu- tion Branch be established within the police force with its own promotion structure. The Director of Public Prosecutions is to organise training courses for police officers serving within the Prosecution Branch. These officers are to serve a pupillage in the Director of Public Prosecutions' department, and are, wherever practicable, to have direct access to state counsel. The Report emphasised the need to avoid delay in bringing cases to trial, the need to recruit from outside Malawi counsel with adequate experience, and the need to continue the training of local state counsel after they have been appointed. Comment was also made on the fact that the courts "were leaning over backwards so that there should be no suggestion that they were being unduly hard on junior counsel", and the courts, especially the High Court, are encouraged to be at pains to point out errors and defects in the presentation of cases by legal practitioners. It was particularly emphasised that once a point in the prosecution's case has been sufficiently covered, no useful purpose is served by calling additional evidence to testify further to it. The Courts of Justice (a) The High Court.—With a view to avoiding delay in the admini- stration of criminal justice, the Report recommended that a Division of the High Court be established in the Central Region, at Lilongwe, the site of the proposed new capital of Malawi, and that fixed assizes should be held at Blantyre, Lilongwe, and in the Northern Region. The Commission considered that judgments in the High Court should be re-served only in exceptional cases, and that normally judgment should be pronounced immediately at the conclusion of the hearing; that judgments of the Supreme Court of Appeal should be embodied in a single majority judgment, dissenting judgments not being recorded; that appeal from a revision order or from a summary dismissal of a first appeal should be only by leave of the https://doi.org/10.1017/S0021855300005064 Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:34, subject to the https://doi.org/10.1017/S0021855300005064 https://www.cambridge.org/core/terms https://www.cambridge.org/core Vol. I I . No. 3 Notes and News 149 High Court or the Supreme Court of Appeal; and that every effort should be made to expedite the hearing of appeals in capital cases. It was emphasised that a conviction ought not to be set aside on appeal unless the Court of Appeal is satisfied that, irrespective of technical defects or omissions, the appellant was wrongly convicted; when a conviction is set aside the Appeal Court must in all cases consider whether a new trial should be ordered. While realising that not all fraud cases can be dealt with by the High Court, the Commission recommended that all those of serious complexity should be prosecuted by state counsel and tried by the High Court. (b) The Magistrates' Courts.—In the Magistrates' Courts the Commis- sion recommended that vacancies in the establishment of Resident Magistrates be filled as quickly as possible and that only those with adequate experience of magisterial work be appointed. It was felt that local officers should have a practical grounding in the work of Local Courts, in prosecuting and defending in the Magistrates' Courts and in the High Court, before being appointed as Resident Magistrates. The Senior Resident Magistrate is to be relieved of much of his court work in order to supervise the work of other magistrates. Magistrates and Local Court chairmen are reminded of the virtues of punctuality in attendance in court. (c) The Local Courts.—Having studied the exposition of customary law prepared by some of its members, the Commission concluded that defilement, indecent assault, and rape are matters which lie peculiarly within the scope of local law and custom, and that the jurisdiction of the Local Courts in these matters should be extended. The possibility of a remand for sentence in more serious cases to a superior court could be considered. (d) Other courts.—-In order to relieve other courts of the routine work of dealing with small debts and minor traffic offences so that Magistrates and Local Court chairmen may give their time to the trial of more serious offences, it was suggested that a new Small Debts Court and a new Traffic Court be established by the City Council of Blantyre, the largest urban centre in the country. Procedure and Evidence Guided by the overriding principle that substantial justice should be done without undue regard to technicalities, the Commission recommended the redrafting and simplification of the Criminal Procedure Code, and particular reference was made to the view that Local Courts should be empowered to dispense with cross-examina- tion by parties when no legal practitioner appears, but that the Local Court chairmen themselves should carry out the requisite examination. It was also suggested that the accused, on a case to answer being found, should be a compellable witness required to give an account of his conduct and to answer relevant questions put to him by the court, complainant or prosecutor. Another suggestion was that magistrates https://doi.org/10.1017/S0021855300005064 Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:34, subject to the https://doi.org/10.1017/S0021855300005064 https://www.cambridge.org/core/terms https://www.cambridge.org/core 150 Notes and News [1967] J.A.L. should not be required to record reasons for their verdicts in minor cases. A major recommendation was that a short code setting out the rules of evidence in criminal cases should be drafted, providing that the admissibility of extra-judicial confessions shall be part of the general issue; that formal admissions by an accused person in court of facts in issue shall be permitted in criminal cases; and that documentary reports of medical officers purporting on the face of them to be authentic shall be admitted in evidence in all cases in which their contents are not in dispute. Miscellaneous Recommendations A number of miscellaneous observations and recommendations were made in the Report. In dealing with prisons it was felt that the standard of subsistence provided in the prisons should be made reasonably to accord with the general measure of subsistence prevailing in the country. It was also recommended that the quantum and hours of work being performed by hard-labour prisoners should be reviewed so as to avoid prisoners being treated with undue leniency. The Commission advised that no account of periods spent in prison awaiting trial should be taken into account in assessing sentence unless remand prisoners opted for hard labour, remand prisoners to have the right so to opt. It was recommended that District Commissioners and Local Court Commissioners should join chairmen and members of Local Courts, magistrates and judges as prison visitors, but that only complaints from convicted prisoners should be heard; judges should not hear complaints from appellants whose appeal to the High Court or Supreme Court of Appeal are still pending. The Commission recommended the introduction of legal educa- tion in the University of Malawi so as to make possible effective research into local law, practice and procedure, and so as to enable Malawians to qualify in the law inside Malawi. The Commission was made aware of a dissatisfaction with the normal measure of sentence in manslaughter cases, and advised, in order to ascertain, as is desirable, the feelings of the deceased person's community in this matter, that before awarding sentence judges should seek the opinion of assessors as to the appropriate measure of sentence. Under local law and custom in Malawi the question of compensa- tion in homicide cases is of prime importance, and the Commission was of the opinion that Local Courts are the tribunals most suited to adjudicate on this matter, and that in each case of homicide the Registrar of the High Court should bring the case to the notice of the District Commissioner in whose district the family of the deceased person lives, with a view to the District Commissioner investigating the circumstances and advising as to the seeking of compensation through the Local Court. Conclusion It is clear from the Report of the Commission, and from state- ments made in Parliament, that there have been undoubted delays https://doi.org/10.1017/S0021855300005064 Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:34, subject to the https://doi.org/10.1017/S0021855300005064 https://www.cambridge.org/core/terms https://www.cambridge.org/core Vol. I I . No. 3 Notes and News 151 and defects in the investigation, prosecution and trial of criminal cases in Malawi, and that these delays and defects were causing widespread dissatisfaction in the country. This dissatisfaction is not attributed to a single cause, but is the result of a combination of circumstances, particularly those stem- ming from a shortage of appropriately qualified and experienced personnel, and those resulting from a "spate of technicalities" which "proliferated out of all sense of proportion". The shortage of staff led to a failure of proper cooperation between the courts, counsel and police, and the position was one of "everybody in the court at the time all learning together". Behind all the recommendations made, the Commission empha- sised "the need for a sound legal and judicial system, and a magis- tracy and judiciary that command respect and confidence", the need for a "system of criminal justice as simple and uncomplicated as possible, directed at enforcing the criminal law against guilty persons speedily and decisively, without unnecessary regard for technicalities". The recommendations were made to achieve this, "that the guilty shall be convicted speedily and properly punished (and) . . . the innocent shall be set free and that they shall also be set free quickly". COLIN BAKER1 T H E AFRICAN LAW REPORTS A new law-reporting organisation has been established for the countries of English-speaking Africa. The African Law Reports will operate under an editorial grant from the Ford Foundation, adminis- tered by the Sailer Project of the International Legal Center, New York, and will be published by Oceana Publications Inc., Dobbs Ferry, N.Y. The organisation is under the direction of Dr. Alan Milner, Fellow of Trinity College, Oxford and formerly the Dean of the Faculty of Law, Ahmadu Bello University, Zaria, Nigeria. The Existing Law Reporting Systems Although law reports are one of the basic tools of any common law system, many of the common law jurisdictions of Africa suffer the disadvantage of inadequate law reporting. With the exception of commercially operated series in East, South and until recently Central Africa, African law reports have normally been published under the aegis of individual colonial or independent governments. Almost without exception, they have been highly selective in their coverage, of variable editorial quality, and sporadic in their publication. At an early stage of colonial rule, the British government sponsored the publication of individual series of reports for many of its African territories. Some ended almost before they began, as in the case of the old Sierra Leone reports (1912-1924, 1 volume); others filled only a few slender volumes over several decades (e.g. Northern Rhodesia 1931-1954, 5 volumes; Nyasaland 1922-1952, 6 volumes; Zanzibar 1 Principal, Institute of Public Administration, University of Malawi. https://doi.org/10.1017/S0021855300005064 Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:34, subject to the https://doi.org/10.1017/S0021855300005064 https://www.cambridge.org/core/terms https://www.cambridge.org/core 
work_gmpgosgdvjanrm3qa33pey7kuy	----	EVIDENCE BASED PUBLIC HEALTH POLICY AND PRACTICE Evidence based health promotion: recollections, reflections, and reconsiderations K C Tang, J P Ehsani, D V McQueen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J Epidemiol Community Health 2003;57:841–843 I mproving the evidence base of health promotion is high on the agenda of the international health promotion commu- nity and it is becoming increasingly apparent that evidence is needed by practitioners for effective health promotion interventions. It is generally accepted that with quality findings from intervention studies, practitioners can make better decisions to achieve effectiveness in their interven- tions. Moreover, without evidence of effective health promo- tion, it may be difficult to obtain policy support. Over the past few years, the debate on the concept or nature of evidence in health promotion effectiveness and its appraisal has focused on the design of a study and other related methodological issues such as validity of indicators, efficacy of the intervention, and context in which the intervention operates.1–4 To a great extent the quality of the evidence has been determined by using the hierarchical structure established by those working in evidence based medicine5 adopting a positivist paradigm. THE RULES OF THE NATURAL SCIENCES To this end, emphasis has been placed on achieving the three rules of scientific inquiry: predictability, repeatability, and falsifiability, when determining the strength of evidence. These are based on widely recognised principles stemming from discussions in the philosophy of science. Predictability is said to be met when a properly implemented intervention will bring about an expected outcome, given that the key elements of the intervention and the cause-effect interaction among those elements are known. The elements of the intervention and the causal relations of those elements thus need to be specified. Repeatability, sometimes referred to as replicability, refers to universal application of the interven- tion, regardless of time and place. The intervention is therefore required to yield the same result wherever and whenever it is carried out. To be falsifiable, the intervention must be capable of being disproved as an effective interven- tion. Once implemented, the intervention is validated if rigorous evaluation research demonstrates that it works and is falsified if it is shown to be ineffective or harmful. Health promotion operates in an environment where numerous cultural, social, economic, and political factors interact. Given a complex context where the links among the elements of an intervention are interrelated, causality, more often than not, cannot be directly established. It is indeed difficult to define causality in a succinct manner.6 7 In brief, it refers to, in biomedical sciences, a probabilistic notion that if an ‘‘x’’ (the exposure) precedes a ‘‘y’’ (the effect) and there is a statistical association between ‘‘x’’ and ‘‘y’’ and if a reduction of ‘‘x’’ will lead to a reduction of ‘‘y’’ and there is not a ‘‘z’’ confounding the association, then causation is imputed. Repeatability of an intervention, regardless of time and place, also has proved difficult to be achieved. The application of the rules of science to health promotion is therefore of questionable merit. It is also important to note that a large part of health promotion is of a social science nature. Behavioural and policy changes are two key focal concerns of many health promotion activities and behaviour is structured by society or is socially constructed. Behaviour here refers to that of individuals as well as of organisations and as such can include lifestyle practices and participation among people in the wider community, sales promotion behaviour of the private industries, and the predisposition of policy makers. Taking into consideration the various types of behaviour (or vested interests), the expressed needs of people in the wider community and the availability of resources, intervention activities as well as policy decisions are determined. When behaviour of individuals, organisations, or the political process is the focus, whether it relates to lifestyle practices, sales decisions or public policy formulation, the explanatory power of science will be limited. Above all, it may be problematic to fit these rules of the natural sciences to the social science disciplines.8 Although the finding of an intervention study may not constitute scientific fact as described by the criteria above, it can be a piece of evidence in the sense that it is a fact disclosed as a result of an evaluation process whereby methods of reasonable rigour are used. In health promotion, for an intervention to be effective, a combination of behavioural, social, and environmental strategies is used. For such interventions, it is not uncommon that the ‘‘what works’’ component is known but ‘‘how it works’’ component remains unclear. This allowance does not imply a compro- mise of accepted standards of methodological rigour in the development, implementation and evaluation of interven- tions. Rather, it expands the range and scope of what can be regarded as valid ‘‘evidence’’ and hence broadens the knowledge and experience base that practitioners and policy makers can draw from. TOWARDS AN IDEAL TYPOLOGY OF EVIDENCE One type of evidence can be found without meeting the causality criterion but where the different elements of an intervention work as a whole to produce the desired outcome. Interventions that may have limited repeatability—for example, only at the local level and within a certain period—can be classified as another type of evidence so long as the intervention works. In sum, a typology of evidence emerges, consisting of four classifications (table 1). A. Evidence of implemented interventions that meet the criteria for scientific fact—that is, they are proved predict- able, and repeatable, regardless of time and place. Assuming there is compliance, immunisation and condom use are classic examples of intervention where the elements of the intervention are known, the cause effect interaction is apparent and have universal application. B. Evidence from interventions that produce desired outcomes and are predictable but are repeatable only at a local level within a certain period of time. The development of 841 www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .5 7 .1 1 .8 4 3 o n 4 N o ve m b e r 2 0 0 3 . D o w n lo a d e d fro m http://jech.bmj.com/ assertiveness skills in commercial sex workers to encourage clients to use condoms, coupled with the availability of condoms, is an example of such an intervention where the cause-effect relation can be determined and the elements readily identified. However, the applicability of this inter- vention is limited to settings where the selling of sex is culturally acceptable and not otherwise. C. Evidence from interventions that work as predicted to produce desired outcomes, without meeting the causality criterion, and are repeatable at any time and anywhere. Acupuncture is an example for treating some illness conditions such as pain relief. D. Evidence from interventions that work as predicted, without meeting the causality criterion, and are repeatable only at a local level within a certain period of time. Community based trials to promote physical activity use a combination of behavioural, social, and environmental action areas which are effective, however which specific component of the action areas led to the outcome is unknown. The success may also be attributable to the interaction effect of the different types of action areas at work. Furthermore, the application is limited by the context where the intervention is applied; hence universal application cannot be achieved. STRENGTH AND TYPES OF EVIDENCE Thus far, the strength or hierarchy of evidence of an inter- vention is, in essence, determined by its evaluation design taking into consideration other methodological issues such as indicator validity and intervention efficacy. Yet the strength of a piece of evidence derived from an intervention may not be simply determined by evaluation design and related metho- dological issues. They are necessary but not sufficient. As illustrated above, there are four types of evidence and with- in each type, all the above mentioned methodological issues apply. Yet implicit in the typology, the strength of evidence of type A would seem to be superior to that of other types. Even if an intervention is shown to work and the methods used to evaluate that intervention are sound, there are other dimensions that need to be certain, for example, how it works and whether or not it is repeatable. The typology presented expands the dimension of evidence for health promotion interventions in the way that the typology presents a horizontal axis for the appraisal of evidence, opening new dimensions for practice and policy formulation and research. KNOWLEDGE BASED HEALTH PROMOTION For improving the evidence base of health promotion, in addition to the deliberation on the typology of evidence, there are other key concerns. In practice, it is important to note that evidence alone cannot constitute effective practice, as is the case of evidence based medicine.9 As suggested, external evidence can inform, but can never replace, the expertise of individual practitioners. It is this expertise that decides whether the external evidence is applied to the target group of an intervention at all and if so, how it should be used for achieving effectiveness. In other words, for an effective intervention, other critical areas in addition to evidence need to be taken into consideration—for example, the needs and expectations of direct service recipients, the interests of other key stakeholders, and the competency of a practitioner in planning and evaluation. Conscientious and judicious use of evidence is only one competency element of health promotion. It is necessary but not sufficient for achieving effective health promotion. Health promotion practitioners are required to be able to absorb and use knowledge in many competency areas as specified in a review report.10 In policy formulation, while the strength of evidence is a base for policy development, there are also other considerations, for example, the socio-political and fiscal climate within which governments and organisations operate as well as the vested interests. The introduction of the typology will also give policy makers another dimension for consideration. In research, effective health promotion often uses a combination of behavioural, social, and environmental strategies that work in synergy. The relation between the outcome variables and predictor variables are complex and not linear. The causal-effect relations of these variables cannot be addressed by traditional quantitative methods in public health alone. This necessitates new modes of practice to emerge and research methods in social sciences to be used, for example, the use of structured equation modelling to examine the validity of theoretical constructs and establish causal effects. The use of qualitative methods will help acquire a better understanding of the meaning of a concept and dissect the complexity of interactions. The use of qualitative methods may also be useful for achieving generalisability or transferability using the notion of repre- sentativeness in the concept when representativeness in the sample cannot be achieved.11 ACKNOWLEDGEMENTS The authors wish to thank Dr Pekka Puska, Director, Department of Non-Communicable Disease Prevention and Health Promotion, World Health Organisation, for his comments on an earlier draft of the manuscript. Table 1 The four classifications used in typology of evidence A B C D What works: elements of an intervention that work (intervention demonstrated to work in evaluation research) What works is What works is What works is What works is Known Known Known Known How it works: cause-effect interaction among those elements (the components and how they work) How it works is How it works is How it works is How it works is Known Known Not known Not known Repeatability Repeatability is Repeatability is Repeatability is Repeatability is Universal Limited Universal Limited 842 Tang, Ehsani, McQueen www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .5 7 .1 1 .8 4 3 o n 4 N o ve m b e r 2 0 0 3 . D o w n lo a d e d fro m http://jech.bmj.com/ Authors’ affiliations . . . . . . . . . . . . . . . . . . . . . K C Tang, J P Ehsani, National and Community Programmes, Department of Non-Communicable Disease prevention and Health Promotion, WHO, Geneva D V McQueen, National Center for Chronic Disease Prevention and Health Promotion, CDC, USA Correspondence to: Dr K C Tang, National and Community Programmes, Department of Non-communicable Disease Prevention and Health Promotion, World Health Organisation, 20 Avenue Appia, CH- 1211 Geneva 27, Switzerland; tangkc@who.int Accepted for publication 5 August 2003 REFERENCES 1 Raphael D. The question of evidence in health promotion. Health Promotion International 2000;15:355–67. 2 McQueen D. Strengthening the evidence base for health promotion. Health Promotion International 2001;16:261–8. 3 McQueen D. The evidence debate. J Epidemiol Community Health 2002;56:83–4. 4 Rychetnik L, Frommer M, Hawe P, et al. Criteria for evaluating evidence on public health interventions. J Epidemiol Community Health 2002;56:119–27. 5 Centre for Evidence-Based Medicine. Levels of evidence. http:// cebm.Jr2.ox.ac.uk/docs/levels.html (accessed Oct 2002). 6 Hill B. The environment and disease: association or causation? Proc R Soc Med 1965;58:295–300. 7 Ehring D. Causation and persistence: a theory of causation. New York: Oxford University Press, 1997. 8 McQueen D. Perspectives on health promotion: theory, evidence, practice and the emergence of complexity. Health Promotion International 2000;15:95–7. 9 Sackett D, Rosenberg W, Gray J, et al. Evidenced-based medicine: What it is and what it isn’t. BMJ 1996;312:71–2. 10 WHO SEARO. Review of certified education and training programmes for health promotion and education in the South East Asia region. New Delhi: WHO SEARO, 2002. 11 Strauss A, Corbin J. Basics of qualitative research: grounded theory procedures and techniques. California: Sage, 1990. THE JECH GALLERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Influential women in occupational health Victoire Cappe—for social justice 1886–1927 Country of birth: Belgium V ictoire Cappe taught social justice as a leader in the Christian Democratic labour movement. She was one of the founders of the Catholic school for social work. In 1907, Cappe founded the Syndicat de l’Aiguille, the first union for needleworkers, dressmakers, and seamstresses. 1 She also began study circles (monthly meetings for young girls and women) to overcome ignorance and indifference, and reach autonomy of mind and action. Facing resistance from most of the clergy, but with the support of Cardinal Mercier, Cappe expanded unions to Brussels, then other Belgian cities. Later, she founded a national Christian professional women’s union. Although suffering with depression, she wrote a book (La Femme Belge), and edited monthly reviews, including a new journal, Joie et Travail. Cappe attended the first Congress of the International Labor Organization in 1919 in Washington, DC, and the first international congress for women workers preceeding it. With Maria Baers and Isidore Maus, Cappe created the International Catholic Union of Social Work. D F Salerno Clinical Communications Scientist, Pfizer Global Research and Development–Ann Arbor Laboratories, Ann Arbor, MI, USA I L Feitshans Adjunct Faculty, Cornell University, School of Industrial and Labor Relations, Albany, NY, USA Correspondence to: Deborah F Salerno, 2800 Plymouth Road, Ann Arbor, MI, USA; deborah.salerno@pfizer.com REFERENCE 1 Keymolen D. Victoire Cappe 1886–1927. Une vie chrétienne, sociale, féministe, Leuven, Belgium: Presses Universitaires de Louvain, 2001. (photo courtesy of Leuven KADOC—Katholiek Documentatie, Katholieke Universiteit) ‘‘…respect for the rights of working women and elevation of their dignity.’’ Evidence based health promotion 843 www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .5 7 .1 1 .8 4 3 o n 4 N o ve m b e r 2 0 0 3 . D o w n lo a d e d fro m http://jech.bmj.com/ 
work_gnbsscd7o5byzjetqhq2rsdnle	----	Review Spaces of environmental justice Ryan Holifield, Michael Porter and Gordon Walker (Eds.) Wiley-Blackwell, Malden, MA, 2010, viii+263pp., ISBN: 978-1444332452 Contemporary Political Theory (2015) 14, e45–e47. doi:10.1057/cpt.2015.7; published online 17 February 2015 Until the mid-1990s, ‘environmental (in)justice’ was conceived largely in terms of the racialized distribution of environmental ‘bads,’ usually in the United States. Environmental justice (hereafter EJ) research largely consisted of rigorous empirical studies demonstrating that racial minorities in the United States were disproportio- nately exposed to environmental hazards. This research not only led to important debates about the racialization of ‘environmentalism’, but also to policy action, including President Clinton’s 1994 signing of Executive Order 12 898 (‘Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations’). The field has evolved considerably since the mid-1990s, as the editors of this collection map out in their introduction. First, scholars and activists outside of the United States have been pushed to consider whether or how EJ might be applied in different national contexts. Second, and perhaps of even greater significance for readers of this journal, those earlier studies’ limited theoretical depth and engagement was increasingly seen as a liability. David Schlosberg’s seminal work emphasized the need to conceptualize EJ in terms of participation and recognition, as well as distribution, and also that ‘doing justice’ includes allowing the subjects of (in)justice to define justice for themselves. The limits of traditional policy interventions also may have helped to clarify the ways in which such key concepts as ‘space’, ‘race’, ‘justice’ and ‘politics’ need to be theorized more carefully. Spaces of Environmental Justice thus refers to bringing the concepts of EJ to new geographic locations, and to placing EJ into new theoretical contexts and conversations. After the editors’ introduction, the book is divided into two parts, each with four chapters. In Part 1, ‘Frameworks for Critical Environmental Justice Research,’ contributors argue for opening up new ways of thinking about and conducting EJ research. Gordon Walker’s first chapter provides a nice opening, laying out the connections between critical geography’s more complex theorizations of space (‘constructed by and through social practices’ (p. 25)) and Schlosberg’s development of the idea of EJ as ‘trivalent, integrating questions of distribution with those of © 2015 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 14, 4, e45–e47 www.palgrave-journals.com/cpt/ http://dx.doi.org/10.1057/cpt.2015.7 http://www.palgrave-journals.com/cpt recognition’ (p. 35). Ryan Holifield then contrasts urban political ecology, which has become a significant theoretical framework in EJ research, with more recent attempts to use Actor-Network Theory in an EJ context. Holifield argues provocatively against a theoretical synthesis of these two approaches, as each asks different questions and thus illuminates different aspects of EJ. Susan Buckingham and Rakibe Kulcur’s chapter focuses on questions of gender. Despite the fact that women have led many EJ movements (p. 73), they argue that gender analysis has been conspicuously absent from EJ research. Part of the case for this is built on an analysis of the gender composition of major European environmental organizations. And while male domination of these organizations may have significant consequences for broader public understandings of ‘environmental justice,’ this is not to say that grassroots EJ organizations or movements are gendered in the same way. More persuasively, they also point to the relative inattention paid to the scales of the household and the body, where the burdens of responsibility fall disproportionately on women. Hilda Kurtz’s chapter draws on theories of the racial state, to argue that even though EJ activists often look to the state for protection against environmental injustice (as in Executive Order 12 898), the state itself plays a significant role in ‘shaping racialized patterns of spatial injustice’ (p. 97). Part 2, ‘Spaces for Critical Environmental Justice Research’, turns to more geographically specific case studies. Petra Tschakert’s chapter discusses her work with artisanal gold miners in Ghana, illuminating the complex politics of scale involved in mining in the global south. Both local labour and host states are significantly disadvantaged vis-à-vis multinational mining corporations. At the same time, Ghanaian ‘artisanal’ miners, who comprise a majority of the mining labour force, operate outside of the formal economy, and often without legal protection or recognition. Tschakert’s participatory research methods show the importance of focusing on inequities of recognition and participation, but also the ways that highly engaged local research may appear problematic at larger scales: ‘galamsey [artisanal] miners did not envision any radical changes themselves …. The large majority … wished to be employed by one of the large mining companies’ (pp. 135, 138). The call for legal (state) recognition of artisanal miners also lies in tension with the understanding of the state developed in Kurtz’s chapter. Zoe Meletis and Lisa Campbell innovatively apply an EJ frame to an ecotourism site in Costa Rica. That site’s ‘isolation’ is an important part of its ecotourist appeal: ‘with no access by road and no cars in town … [it] seems more “natural” ’ (p. 170). At the same time, this ‘isolation,’ contributes to a significant problem in dealing with solid waste. Recalling that ecotourism sites are in fact ‘produced’, not ‘natural’, underlines the power imbalances, and hence EJ issues, at play. Karen Bickerstaff and Julian Agyeman’s chapter on a conflict over shipbreaking in northeast England focuses on the politics of shifting scale-frames. Perhaps because the identity politics that is so central to US EJ struggles is less entrenched in England, and perhaps because this particular struggle involved an international NGO involved in a local campaign, there is greater Review e46 © 2015 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 14, 4, e45–e47 political room for manoeuvre on both sides. The final chapter, by Julie Sze et al., examines a policy-making process for managing the Sacramento-San Joaquin Delta in California’s Central Valley. Here, too, ‘the conflict over scale [is] at the core of the politics’ (p. 221). How is ‘the Delta’ defined and represented? Who is and is not afforded representation in the processes that manage the Delta? In a classic move of EJ analysis, the authors note that ‘local interests are constructed as parochial, short sighted, and irrational, whereas advocates for the state are considered to be acting for the abstract good, rather than in the service of capital and large water users (agriculture and urban water districts)’ (p. 238). While each of the individual chapters provides interesting insights, a firmer editorial hand might have helped the book as a whole to initiate a fuller dialogue about the development of the field. Outside of the editors’ introduction, there are very few references made by the authors to other chapters in the book, despite obvious opportunities to do so. More generally, the chapters each seek to push EJ research in new, and different, directions. The result is that occasionally terrain that is deplored as conventional and inadequate in one chapter is what is covered in another. A number of contributors comment on the US-centrism of the first wave of EJ research, but chapters discussing US case studies do not critically reflect on their location. Sze et al.’s chapter title refers simply to ‘the Delta’ (my emphasis). Kurtz’s chapter, despite what sometimes appear to be broader claims, is singularly focused on the American (United States) state. This is of course not to suggest that other states are not racialized, but rather that specific histories and geographies have racialized the Canadian, English, Brazilian and so on states in different ways. On the other hand, Kurtz’s demand for a more careful theorization of the (racial) state and its role in EJ conflicts is important, and remains underdeveloped or unacknowledged in some other chapters. In sum, while the collection does not quite provide a map of the new ‘spaces of environmental justice,’ it does provide signposts that point in a number of useful and provocative directions. Andrew Biro Acadia University, Wolfville, NS, Canada B4P 2R6 andrew.biro@acadiau.ca Review e47© 2015 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 14, 4, e45–e47 Spaces of environmental justice 
work_gpqtxuavhvemvouqepfbtwepp4	----	On Justice Knowledge Activation: Evidence for Spontaneous Activation of Social Justice Inferences Jaap Ham • Kees van den Bos Published online: 1 February 2011 � The Author(s) 2011. This article is published with open access at Springerlink.com Abstract This article focuses on how people infer the justness of events they encounter. Earlier justice research typically asked participants explicitly for their justice judgments. More recent research provided evidence for the possibility of spontaneous judgment inferences. The present research extends this study in three important ways: it provides strong evidence that (1) spontaneous social justice inferences can occur in multiple research paradigms, (2) these inferences constitute a process separate from spontaneous general evaluation of valence, and (3) spon- taneous justice inferences covary with individual differences in sensitivity to justice. We provide evidence for these three conclusions by means of important implicit measurement research paradigms that we specifically tailored to study justice inferences: the probe recognition paradigm and the grid-relearning paradigm. We discuss the implications of our findings for both the literatures on justice and spontaneous inferences. Keywords Social justice � Spontaneous activation � Inferences � Judgments � Probe recognition � Grid relearning Social justice represents a core issue in society, politics, organizations, intimate relationships—indeed in almost every social situation in which people interact with each other (Folger, 1984). Study in various scientific disciplines (ranging from economics to ethology; see, e.g., Beauchamp, 2001) suggests that in their day-to-day J. Ham � K. van den Bos Department of Social and Organizational Psychology, Utrecht University, Utrecht, The Netherlands J. Ham (&) Department of Human-Technology Interaction, Eindhoven University of Technology, IPO 1.36, P.O. Box 513, 5600 MB Eindhoven, The Netherlands e-mail: j.r.c.ham@tue.nl 123 Soc Just Res (2011) 24:43–65 DOI 10.1007/s11211-011-0123-x lives people are exposed to justice-related issues repeatedly. Because all these encounters inherently demand that people assess the justice of what was going on (as justice is not an innate property of a situation but rather in the eye of the beholder; Mikula & Wenzel, 2000), assessing what is just and unjust may be assumed crucial and frequent human activities. Indeed, recent research provides preliminary evidence that individuals spontaneously judge the justness or unjustness of events that they encounter (Ham & Van den Bos, 2008; see also, Correia, Vala, & Aguitar, 2007; Hafer, 2000; Kay & Jost, 2003). That is, there is some tentative evidence suggesting that people can draw social justice inferences without having the intention to form an impression of whether the event that happened was just or unjust (for a more extensive introduction to the concept of spontaneous inferences, see Uleman, 1999; Uleman, Adil Saribay, & Gonzalez, 2008). We think it is important to build and extend on these research studies indicating that people can infer justice levels of situations spontaneously because more systematic evidence for the spontaneous qualities of the justice judgment process is needed. Part of why we think more systematic evidence is needed is conceptual. That is, earlier studies have disputed that individuals consider the justice implications of events spontaneously (see, e.g., Jasso, 1999; Sabbagh, Dar, & Resh, 1994). Related to this, well-known moral psychologists have stated explicitly that assessing morality is caused primarily by careful, intentional reasoning processes (e.g., Kohlberg, 1969; Piaget, 1975; Turiel, 1983) whereas others assume, yet do not show, that assessing morality ‘‘is generally the result of quick, automatic evaluations (intuitions)’’ (Haidt, 2001, p. 814). Another reason why we argue more systematic evidence for spontaneous justice inferences is needed is empirical. For example, most earlier justice studies did not assess the spontaneity of people’s judgments of the justness or unjustness of events and did not use spontaneous justice judgments as their main dependent variables. That is, almost all studies reported in the literature explicitly asked participants or respondents to form justice judgments using explicit measures like Likert-type rating scales to assess justice ratings (for an overview, see, e.g., the appendix in Lind & Tyler, 1988; see also Colquitt & Shaw, 2005). By definition, these kinds of judgments are intentional (Uleman, 1999) and therefore spontaneously formed justice judgments have largely not been assessed (notwithstanding that they may have been activated). There have been earlier articles that, although they did not directly assess the spontaneity of justice judgments, have argued that after many social experiences people may have justice on their minds (see, e.g., Greenberg, 1986, see also, Lerner & Goldberg, 1999). Also, further support for our argument for spontaneous justice judgments can be found in recent studies that suggest that spontaneous activation of justice-related knowledge indeed may occur (Correia et al., 2007; Hafer, 2000; Kay & Jost, 2003). For example, Hafer (2000) found that participants’ implicit reactions to justice-related words were influenced when participants’ beliefs in a just world were threatened. However, these studies (Correia et al., 2007; Hafer, 2000; Kay & Jost, 2003) do not provide direct evidence for spontaneous, unintentional activation of justice-related knowledge: justice judgments may have been intentional in these studies, but they do assess implicit responses related to the activation of the concept of justice. 44 Soc Just Res (2011) 24:43–65 123 More recently there has been direct evidence reporting that people may spontaneously draw inferences about social justice when they encounter events that may or may not strongly threaten their just-world beliefs (Ham & Van den Bos, 2008). That is, in two studies we investigated the social justice inferences people draw after reading descriptions that are highly personally relevant (e.g., ‘‘You and your colleague do the same work. You make 1400 euros a month and your colleague makes 4100 euros a month’’) versus after reading descriptions of lower personal relevance (e.g., ‘‘He and his colleague do the same work. He makes 1400 Euros a month and his colleague makes 4100 Euros a month’’). In both studies, we not only assessed intentional inferences about social justice (using explicit Likert-type justice judgment scales), but also assessed spontaneous justice inferences (using an implicit measurement paradigm: the probe recognition paradigm). Results indicated that participants drew inferences about justice spontaneously. Furthermore, the personal relevance manipulation did not affect intentional inferences about social justice, but did influence spontaneous justice inferences. That is, spontaneous justice inferences were stronger following the reading of descriptions of high personal relevance than descriptions of lower personal relevance. Building on this insight we will present self-relevant descriptions to our participants in the current experiments, noting that spontaneous justice inferences are possible also using descriptions that are less self- relevant. The Current Research Our 2008 findings were the first direct evidence for spontaneous justice inferences using an implicit research paradigm that is well-suited to assess spontaneous inferences (Uleman, Hon, Roman, & Moskowitz, 1996) and provide preliminary evidence for the idea that people spontaneously draw inferences about social justice (Ham & Van den Bos, 2008). The present research extends on the earlier research in three important ways: a first aim of the current research is to provide more robust evidence that spontaneous social justice inferences can occur, using multiple research paradigms. That is, we will provide evidence from the probe recognition paradigm that we used in our earlier research (Ham & Van den Bos, 2008), and from a new research paradigm as well (the grid-relearning paradigm). Obtaining evidence from multiple paradigms is important before reliable conclusions about spontaneous inferences can be drawn (see, e.g., Uleman, 1999). A second aim of the current research is to provide evidence that spontaneous social justice inferences constitute a process separate from spontaneous general evaluation of valence. We think it is necessary to test this prediction, because a critic might argue that the spontaneity of justice inferences simply constitutes a process of merely evaluating the positivity or negativity of events as opposed to more specific spontaneous evaluation of justice inferences. Thus, it is important to show a difference in spontaneous justice inferences as compared to spontaneous valence evaluation (Fazio, 2001). The second aim of this article, therefore, is to test the specificity of the spontaneity of justice inferences versus more general spontaneous valence evaluation. Soc Just Res (2011) 24:43–65 45 123 A third aim is to show that spontaneous justice inferences can covary with individual differences in sensitivity to justice. Research suggests that people differ in the strength with which they react to just and unjust events. These individual differences can be measured by means of the justice sensitivity scale (JSS) developed by Schmitt (1996; Schmitt, Gollwitzer, Maes, & Arbach, 2005). This scale consists of three subscales, of which the first subscale (JSSVictim) measures sensitivity with regard to experiencing injustice towards oneself. The second subscale (JSSPerpetrator) measures sensitivity to profiting oneself from unjust events. The third subscale (JSSObserver) measures sensitivity to observing that others are treated unjustly. We argue here that the more sensitive people are to issues of social justice, the more they will spontaneously draw inferences about social justice. From a functional perspective, it can very well be stated that functionally it would make the most sense if people high in sensitivity to issues of social justice would be able to form adequate justice judgments most spontaneously. Therefore, in line with earlier findings from the social-cognitive literature that higher mental processes that occur often tend to become automatized (Smith, 1994; see also Smith & Lerner, 1986), we propose that people who are strongly sensitive to justice issues may have made justice judgments more frequently, and, thereby, are more likely to draw spontaneous justice inferences than people who are less strongly sensitive to justice issues. Earlier research did not test this prediction, and we think it is important to show evidence for this hypothesis because it will lead to a better view on the mechanisms leading to spontaneous justice inferences. Experiment 1 In social cognition research, the automaticity of higher mental processes has been studied extensively. Findings show, for instance, that after reading the behavior description ‘‘John gets an A for the test,’’ the trait inference ‘‘smart’’ might be spontaneously activated (e.g., Ham & Vonk, 2003). In addition to the reasons mentioned earlier, we think it is interesting to investigate the spontaneity of social justice inferences because we would like to try to integrate the social cognition and social justice literatures; domains of social psychology that have been developed in largely independent ways yet that may profit from each other’s insights. Building on the literature on spontaneous trait inferences, therefore, we used implicit measures to find evidence for spontaneous justice inferences. Specifically, we used two important different implicit measurement paradigms to find evidence for sponta- neous justice inferences: probe recognition and grid-relearning paradigms (Uleman, Newman, & Moskowitz, 1996). In both the experiments of this article, we presented participants with descriptions that implied a just event or an unjust event had happened as well as with descriptions that did not imply anything related to justice. After this, we measured spontaneous justice inferences using these implicit measurement paradigms. In Experiment 1, we assessed participants’ spontaneous justice inferences by means of the probe recognition paradigm (McKoon & Ratcliff, 1986). In this research paradigm, participants read a short description of a situation after which a 46 Soc Just Res (2011) 24:43–65 123 probe word was presented on their screens. Participants were asked to accurately indicate as quickly as possible whether this probe word was part of the sentence they read. For example, participants in our experimental trials read the sentence ‘‘You and your colleague do the same work. You make 1400 Euros a month, and you colleague 4100 Euros,’’ while on control trials they read a sentence that used the same words (including identical pronouns to refer to the actor) but which did not imply anything related to social justice. After such a sentence had been presented, the word ‘‘just’’ was presented on participants’ computer screen and participants were asked to indicate whether this probe word was part of the sentence they had read. If justice inferences are spontaneously drawn while reading the experimental description, then we should find that participants need more time to respond and/or more often respond incorrectly on experimental trials as compared to control trials (the probe recognition effect). This is because the spontaneous justice inference might have interfered with correctly and quickly rejecting the probe word after reading a description that did imply that probe word more so than after reading a description that did not (McKoon & Ratcliff, 1986). Therefore, finding the probe recognition effect indicates that participants spontaneously drew justice inferences. Additionally, in the probe recognition paradigm, participants must suppress drawing spontaneous inferences to respond quickly and correctly as instructed. Therefore, this paradigm provides strong evidence that inferring the probe concepts is not only unintended but also difficult to control (McKoon & Ratcliff, 1986). What makes the probe recognition paradigm especially suited to study spontaneous justice inferences is that, by its very nature, it pits ostensible task demands against spontaneous inferences (Uleman, Hon, et al., 1996). That is, to respond quickly and correctly as instructed, participants must suppress drawing inferences about social justice. Thereby, this paradigm provides strong evidence that a justice inference was formed without intentions to do so, and in efficient, and, especially, uncontrolled ways (see Bargh, 1994). Additionally, characteristics of the probe recognition paradigm are such that awareness of the formation of a justice inference is avoided (McKoon & Ratcliff, 1986; Uleman, Newman, et al., 1996). That is, one of the important characteristics of the probe recognition paradigm is that of all the descriptions presented to participants in this paradigm, justice-related descriptions need only be a small minority. More specifically, our participants are only presented justice-related descriptions on 4 of all 60 descriptions, and awareness of the formation of a justice inference is thereby hidden between interpreting an abundance of other (filler) descriptions. In sum, the probe recognition paradigm can provide strong evidence that spontaneous justice inferences can be formed during reading of situation descriptions that portray a just or an unjust event. More specifically, the probe recognition paradigm uses short description as stimulus material to guarantee implicit measurement and spontaneity of cognitive activity (see McKoon & Ratcliff, 1986). Therefore, we developed and pre-tested four different, short descriptions of justice-implying situations. Of all four descriptions, we developed three versions; a just-implying version and an unjust- implying version (e.g., a description of a just [unjust] event was: ‘‘On the first class, the professor states that 2 [1] of 2 assignments must be handed in. After the course, both assignments are used to calculate your grade’’); and a control version. All three Soc Just Res (2011) 24:43–65 47 123 versions used identical words. The just-implying and the unjust-implying versions solely differed in numbers or amounts mentioned (e.g., ‘‘2’’ or ‘‘1’’) such that they either implied just or unjust events. Some of the four experimental descriptions involved distributive justice, some procedural justice. The control version presented the words (of either the just-implying or the unjust-implying version) in a different order such that these control descriptions formed logical sentences that did not imply anything related to justice (e.g., ‘‘On the first class, the professor states assignment calculations used in both 2 grades. After the course, the 2 [1] assignments must be handed in.’’). All descriptions were self-involving because earlier research (Ham & Van den Bos, 2008) suggests that highly self-relevant justice-related situation descriptions cause stronger spontaneous justice inferences than low self-relevant descriptions. A pretest (Pretest 1, described in Footnote 1) indicated that for all four different descriptions, the three versions indeed were perceived to be just, unjust, and neutral on a dimension of unjust to just. 1 Our predictions were that we would find effects on the probe recognition measures indicating that participants draw justice inferences spontaneously when they read the descriptions that implied just or unjust events. Furthermore, we used our implicit measurement paradigms also to assess spontaneous evaluations of general valence, and, thus, to explore the possible differences between spontaneous justice inferences and spontaneous valence evaluation. Method Participants and Design Participants were 89 students (25 men and 64 women) at Utrecht University. All participants were native Dutch speakers. For a participation of 20 min they received 2 Euros (1 Euro equaled approximately $1.20 U.S. at the time the studies in this paper were conducted). All participants were submitted to a 2 (trial type: experimental vs. control) 9 2 (description: just-implying vs. unjust-implying) 9 2 (probe type: justice-related vs. valence-related) within participants design. 1 In Pretest 1, 160 participants were asked to evaluate how just (1 = very unjust, 7 = very just), fair (1 = very unfair, 7 = very fair), appropriate (1 = very inappropriate, 7 = very appropriate), and justified (1 = very unjustified, 7 = very justified) they thought the events described in the sentences to be. For each sentence, participant’s answers to these four items were averaged to form a reliable scale of their justice judgments (for each sentence, alpha [ .84). Results indicated that events described in just- implying descriptions were indeed judged to be more just (on average, M = 6.3, SD = 1.4) than unjust- implying descriptions (on average, M = 1.5, SD = 0.9), ps \ .001, for all four descriptions. Also, the control version of each sentence was judged (M = 4.3, SD = 1.2) to be more just than the unjust- implying version, ps \ .001, for all four descriptions, and less just than the just-implying descriptions, ps \ .001, for all four descriptions. Furthermore, an analysis of response times to these questions did not show a difference in response times influenced by description type, F \ 1. Therefore, Pretest 1 shows that, as intended, that processing times of the three types of descriptions are comparable. 48 Soc Just Res (2011) 24:43–65 123 Stimulus Materials In our probe recognition paradigm, participants completed 60 trials in random order. In each trial, a short description and a single probe word were presented to the participants. Of the 60 trials, 8 trials (4 experimental and 4 control trials) were the critical trials that were used to test our hypotheses. In the 4 experimental trials, each description was succeeded by a probe word that was implied by the description. Two experimental trials each employed a description implying just events, whereas the remaining 2 experimental trials each employed a description implying unjust events. In both these 2 sets of 2 experimental trials, the probe word was a justice-related word in one trial, and a valence-related word in the other trial. The 4 control trials were similar to the 4 experimental trials, but used descriptions that presented the words (of either the just-implying or the unjust- implying version) in a different order such that these control descriptions formed logical sentences that did not imply anything related to social justice. All descriptions are available on request. So, to keep words used in the control descriptions completely the same as in the experimental descriptions, we used control descriptions in two versions: either the control description used completely the same words as the just-implying experimental description or completely the same words as the unjust-implying experimental description. For the 2 experimental trials employing a justice-related probe word and the corresponding control trials, 2 probe words were taken randomly from a set of 8 words related to social justice. As just probe words we used ‘‘just,’’ ‘‘fair,’’ ‘‘justified,’’ and ‘‘appropriate,’’ and as unjust probe words we used ‘‘unjust,’’ ‘‘unfair,’’ ‘‘unjustified,’’ and ‘‘inappropri- ate.’’ 2 Using both just and unjust probe words allowed us to assess differences in activation levels between these two types of justice-related probes. For the 2 experimental trials employing a valence-related probe word and the corresponding control trials, 2 probe words were taken randomly from a set of 4 words related to general valence evaluation. The positive probe words ‘‘positive’’ and ‘‘friendly’’ represented positive evaluation, and the negative probe words ‘‘negative’’ and ‘‘hateful’’. The valence of all probe words was assessed in Pretest 2. 3 For all trials, at random a description and a concurring probe were chosen with this restriction that no 2 trials used the same materials. 2 All stimulus materials presented are the English translations of the Dutch materials we used. 3 In Pretest 2, implicit general valence evaluations of all cue words used in Experiments 1 and 2 were assessed using a measure of implicit evaluation (the Extrinsic Affective Simon Task or EAST; see De Houwer, 2003). In the EAST, participants see white words that need to be classified on the basis of stimulus valence and colored words that need to be classified on the basis of color. One can estimate participants’ general valence evaluation of a stimulus by presenting that stimulus on the colored trials and comparing the time needed to give the extrinsically positive response (i.e., the response that has to be made to positive white words) with the time needed to give an extrinsically negative response (i.e., the response that has to be made to negative white words). If on the colored trials, the extrinsically positive response is given more quickly and with fewer errors than the extrinsically negative response, one can infer that the stimulus presented on those trials is positive. If the reverse is true, then the stimulus is evaluated negatively. Soc Just Res (2011) 24:43–65 49 123 In addition to the 8 critical trials, 52 filler trials unrelated to social justice were included in the experiment for two reasons. First, if all materials were justice- related, we would not be able to show that it is specifically spontaneity of justice inferences (as opposed to other, more general inferences) that we are revealing here (McKoon & Ratcliff, 1986). Second, if all correct responses were to answer ‘‘no,’’ attending to the description would not be necessary to complete the task (McKoon & Ratcliff, 1986). Therefore, in 30 of the 52 filler trials the probe was a word that was literally in the description. Filler descriptions and probe words were comparable in length and sentence structure to the critical descriptions and probe words. Experimental Procedure The experiment was run on a computer and started with an explanation of the first task. The first task was the probe recognition task which started with a practice round of 12 trials. The practice rounds were the same as the trials of the experimental task, but materials were unrelated to social justice. Next, the 60 trials of the main task started. In each trial, first a row of X’s appeared in the middle of the screen for 1000 ms. Next, the description was displayed for 3000 ms, followed by a blank screen lasting 500 ms. Again a row of X’s appeared on screen for 500 ms, this time followed by the probe. During the whole task the words ‘‘yes’’ and ‘‘no’’ remained visible on the right and left side of the screen. From the moment the probe was presented, participants could press the appropriate keys (the ‘‘a’’-key and the ‘‘6’’-key to indicate ‘‘no’’ and ‘‘yes,’’ respectively) to give their answer. The probe Footnote 3 continued Specifically, the 40 participants of Pretest 2 completed an EAST that used 4 sets of words: 2 sets of valence-related words (2 positive and 2 negative) and the justice-related words (2 just-related and 2 unjust-related) of Experiments 1 and 2. Within participants, we manipulated set contents (justice-related or valence-related words) and set valence (positive or negative). For each set, we calculated an EAST response time score and an EAST error rate score, identical to De Houwer (2003, Study 2). Positive EAST scores indicate that the stimulus presented on those trials is evaluated positive, whereas negative EAST scores indicate negative valence evaluation. We analyzed EAST response time scores and EAST error rate scores (as De Houwer, 2003) for the 4 sets of cue words in two separate 2 (set contents: justice- related vs. valence-related) x 2 (set valence: positive vs. negative) repeated measures ANOVA’s. In both analyses, we found the expected interaction effect; for EAST response time scores, F(1, 39) = 4.85, p \ .05; for EAST error rate scores, F(1, 39) = 5.00, p \ .05. As expected, inspection of means reveals that for valence-related cue words differences in EAST scores between positive and negative sets are bigger than for justice-related cue words. That is, the interaction effect indicated that for EAST response time scores, valence-related positive set scores (M = 40 ms, SD = 55 ms) differed more from valence- related negative set scores (M = -37 ms, SD = 51 ms), F(1, 39) = 45.83, p \ .001, g2 = .54, than justice-related positive set scores (M = 16 ms, SD = 54 ms) differed from justice-related negative set scores (M = -24 ms, SD = 50 ms), F (1, 39) = 10.25, p \ .01, g2 = .21. Similarly, for EAST error rate scores the above mentioned interaction effect showed that the difference between valence-related positive and negative error rate scores (Ms = 1.17% vs. -0.98%, SDs = .95 and .76%) was bigger, F(1, 39) = 104.36, p \ .001, g2 = .73, than the difference between justice-related positive and negative error rate scores (Ms = .81% vs. -0.73%, SDs = 1.03 and .89%), F(1, 39) = 62.39, p \ .001, g2 = .61. These findings show that the cue words representing valence evaluation are evaluated more extreme on a scale of valence than are words representing justice. As intended, this made our valence-related words better suited for assessing automatic general evaluation than our justice-related words (cf. De Houwer, 2003), because, as expected, these results show that they lead to stronger implicit evaluations. 50 Soc Just Res (2011) 24:43–65 123 remained visible until the participant had pressed one of both keys. After the answer was given, a blank screen was displayed for 1000 ms. Then, the next trial started. After completing all trials, participants completed the most recent version of the justice sensitivity scales (Schmitt et al., 2005). For each subscale, participants had to indicate on a 7-point Likert scale how much they agreed with 10 different statements (1 = totally disagree, 7 = totally agree). Participants’ answers to each set of 10 questions were averaged to form three reliable scales of JSSVictim (alpha = .78), JSSObserver (alpha = .89), and JSSPerpetrator (alpha = .86). An example of a JSSVictim statement is ‘‘It bothers me when others receive something that ought to be mine.’’ An example of a JSSObserver statement is ‘‘I am upset when someone does not get a reward he/she has earned.’’ And an example of a JSSPerpetrator statement is ‘‘I cannot easily bear to unilaterally profit from others.’’ Finally, participants were thanked, paid for their participation and debriefed. Results Response Latencies All participants had a low error rate (M = 5.7%, ranging from 0 to 11.2%). Response latencies were analyzed only if the reaction had been a correct one. As recommended by Ratcliff (1993), we analyzed our response latency data by using two methods. First, an absolute cutoff criterion of \200 and [2000 ms was used. Second, an inverse transformation (1/x) of the response latencies was used. The analyses reported hereafter are based on the cutoff criterion, which yielded converging results to the inverse transformation analysis. By using the cutoff point criterion, only a total of 7 responses (0.16%) from 5 participants had to be dropped from the statistical analyses. Response latencies were submitted to a 2 (trial type: experimental vs. control) 9 2 (description: just-implying vs. unjust-implying) 9 2 (probe type: justice-related vs. valence-related) repeated measures analysis of variance (ANOVA). We found corroborative evidence for our research hypotheses. That is, we found evidence for spontaneous justice inferences, indicated by an interaction between trial type and probe type, F(1, 83) = 5.67, p \ .05. As predicted, for justice-related probe words, participants responded slower on experimental trials (M = 699, SD = 174) than on control trials (M = 639, SD = 204), F(1, 83) = 13.15, p \ .01. For valence-related probe words, participants did not respond slower on experimental trials than on control trials (overall M = 651, SD = 215), F \ 1. So, as expected, participants were slower in rejecting justice-related probe words on experimental trials (after reading a description that implied just or unjust events) than on a control trials (after reading a justice-unrelated control description), whereas for valence-related probe words this effect was weaker, in fact was statistically not significant. Furthermore, there was no statistical evidence that descriptions implying just events led to different probe recognition effects than descriptions implying unjust events, as indicated by a non-significant interaction between trial type and description, F \ 1, and between trial type, description, and probe type, F \ 1. Soc Just Res (2011) 24:43–65 51 123 We also examined whether the 4 just probe words led to different probe recognition effects than the 4 unjust probe words. Because we only allowed for a minimum number of 2 experimental trials to contain only materials (description and probe word) related to justice, each participant saw only two of the four possible combinations of the two types of descriptions (just-implying or unjust-implying) and the two types of justice-related probe words (just and unjust probe words). Because of randomization of these combinations, there were two specific subsets of participants that did see the trials relevant for the current analyses. That is, one subset saw only just probe words and a sentence implying a just event on the one and an unjust event on the other of the two experimental trials. Another subset saw only unjust probe words combined with both a sentence implying a just event and one implying an unjust event. So, we could perform two separate 2 (trial type: experimental vs. control) 9 2 (description: just-implying vs. unjust-implying) repeated measures ANOVAs for the two subsets of participants. Results indicate probe recognition effects for both types of probe words: For just probe words, participants responded slower on experimental trials (M = 667, SD = 181) than on control trials (M = 618, SD = 195), F(1, 20) = 4.44, p \ .05, and for unjust probe words, this pattern was also found (M = 689, and SD = 134, versus M = 599, and SD = 168), F(1, 20) = 7.37, p \ .05, independent of whether the sentence implied just or unjust events, all Fs \ 1. Likewise, we performed two separate ANOVAs identical to those used to analyze response times to justice-related probe words, now to explore whether the positive valence-related probe words led to different response times than negative valence- related probe words. Results indicate no overall probe recognition effects for both types of probe words: Neither for positive nor for negative valence-related probe words did we find a main effect of trial type, both Fs \ 1. However, we did find that descriptions that implied a just event led to spontaneous activation of positive valence evaluation. That is, for positive valence-related probe words, we found an interaction between trial type and description: Simple effect analyses revealed that when the description implied a just event, participants responded slower to positive valence-related probe words on experimental trials (M = 739, SD = 263) than on control trials (M = 635, SD = 177), F(1, 20) = 4.73, p \ .05, but not when then the description implied an unjust event, F \ 1. For negative valence-related probe- words, this interaction was not found, F \ 1. Error rates Because no selection criteria apply in this analysis, all error rates of the 89 participants could be analyzed in repeated measures ANOVA identical to the one used to analyze response latencies. 4 This analysis showed results comparable to the analysis of response latencies: The interaction effect between trial type and probe type was significant, F(1, 88) = 17.98, p \ .001. For justice-related probes, participants made more errors on experimental trials (M = 6.49%, SD = 0.58%) 4 When analyzing error rates, we will analyze binomial data—i.e., answers were either correct or wrong. For analyses of variance on binomial data, see Kirk (1982). 52 Soc Just Res (2011) 24:43–65 123 than on control trials (M = 4.04%, SD = 0.57%), F(1, 88) = 33.94, p \ .001. For probes related to evaluation, this difference in error rates was not found (overall M = 5.59%, SD = 0.60%), F \ 1. Furthermore, as in the analyses of participants’ response times, there was no evidence that descriptions implying just events led to different error rates than did descriptions implying unjust events, as suggested by a non-significant interaction between trial type and description, F \ 1, and between trial type, description, and probe type, F \ 1. Finally, comparable to the response time results, further analyses of error rates for just versus unjust probe words indicated probe recognition effects for both just as well as unjust probe words. Two separate repeated measures ANOVA’s, identical to those used to analyze response times of just and unjust probe words, showed that participants made more errors on experimental trials than on control trials, both for just-related probe words, F(1, 22) = 6.52, p \ .05, as well as for unjust-related probe words, F(1, 21) = 8.89, p \ .01, independent of description type, all Fs \ 1. We also performed identical ANOVAs to assess probe recognition effects on error rates for positive and negative valence-related probe words. Comparable to analyses of response times on the two types of valence-related probe words, results did not show that participants made more errors on experimental trials than on control trials for positive nor for valence-related probe words. However, different from analyses on response times to positive valence-related probe words, the analyses of error rates did not suggest that descriptions that implied a just event led to activation of spontaneous positive valence evaluation. That is, for positive evaluation-related probe words, we did not find an interaction between trial type and description in the analysis of error rates, F(1, 22) = 1.53, p = .23, and a simple main effect of trial type was not found for descriptions implying a just event nor descriptions implying an unjust event, Fs \ 1. For negative valence-related probe words, comparable to the analyses of response times, differences in error rates between descriptions types were not found, F \ 1. Insights from Differences in Justice Sensitivity An additional, intriguing aspect of the current findings is that they suggest that spontaneous justice inferences and individual differences in justice sensitivity may be correlated. Specifically, we analyzed whether participants’ scores on the three subscales of the justice sensitivity scale (JSS) were related to the spontaneous activation of the justice-related probe words. To this end, we constructed a measure representing the spontaneous activation of justice-related probe words by subtract- ing participants’ response times on control trials from their response times on experimental trials (collapsing across just-implying and unjust-implying descrip- tions). A regression analysis on this measure for spontaneous justice inferences, showed that of the three subscales of the JSS (JSSVictim, JSSObserver, JSSPerpetrator), JSSVictim, Beta = .236, t(85) = 1.96, p \ .05, and JSSPerpetrator, Beta = .238, t(85) = 2.12, p \ .05, were significantly related to participants’ spontaneous justice inferences. This suggests that especially individual differences in sensitivity to experiences of own injustice and sensitivity towards profiting from unfair events may be strongly associated with spontaneous justice inferences. Soc Just Res (2011) 24:43–65 53 123 Discussion In accordance with our expectations, Experiment 1 presents evidence for spontaneous justice inferences. That is, when participants had read a justice- implying description and the probe word was justice-related, participants were slower and made more errors on rejecting the probe. This suggests that a justice inference was drawn spontaneously while reading our experimental descriptions and that this spontaneous justice inference interfered with quickly and correctly rejecting the probe. Because the probe recognition paradigm was designed to guarantee spontaneity of activation of inferences (see, Uleman, 1999), and hence not giving participants any intentions or instructions to start forming justice judgments), the findings of Experiment 1 indicate that people can activate concerns for social justice in unintended ways when witnessing justice-related events. The findings of Experiment 1 also indicate that spontaneously drawing an inference about social justice is not necessarily the same as more general, spontaneous processes of valence evaluation, as the findings obtained in our probe recognition paradigm clearly indicated stronger activation by our justice-implying descriptions for justice-related probe words than for valence-related probe words. That is, the results indicate only spontaneous justice inferences, but, overall, no spontaneous activation of valence evaluation. Importantly, the results did suggest that the probe recognition paradigm we used in Experiment 1 is sensitive to detecting spontaneous valence evaluation. That is, when our participants had read a description that implied a just event, participants were slower on rejecting positive valence-related probe, although they did not make more errors. This suggests that positive valence has been spontaneously activated while reading those descriptions as it interfered with quickly rejecting the probe. This indicates that some spontaneous valence evaluation has occurred. In Experiment 2, we will use another implicit measurement paradigm to study the robustness of the effects reported in Experiment 1. Finally, we also obtained evidence that individual differences in sensitivity to experiences of own injustice and sensitivity toward profiting from unfair events may be strongly associated with spontaneous justice inferences. We did not find differences in activation of just-related from unjust-related concepts dependent on whether a description implied a just or an unjust event. We will come back to these findings after we have reported the findings of our second experiment. Experiment 2 One important aim of Experiment 2 was to replicate the findings obtained in Experiment 1 using a different research paradigm. To this end, we adapted another implicit measurement paradigm to detect spontaneous justice inferences: the ‘‘grid- relearning paradigm.’’ This paradigm was recently developed by Ham and Vonk (2003) to study the activation of spontaneous inferences in person perception. It is in general based on the notion that relearning is more effective than learning, and more specifically on research by Carlston and Skowronski (1994), and on the idea that 54 Soc Just Res (2011) 24:43–65 123 implicit inferences are learned when they initially occur, so that when the same material is encountered later on in explicit learning trials, it is essentially relearned and hence learned more quickly. In the grid-relearning paradigm, we developed for the line of research presented here, participants had the opportunity to learn a combination two times. That is, in the three tasks of this paradigm, participants are presented with a 4 9 4 information-grid. In the first task, in each cell of the grid, a description is presented. For example, one unjust-implying description that we used was: ‘‘You and your colleague do the same work. You make 1400 euros a month and your colleague makes 4100 euros a month.’’ This description was presented to the participants in a certain cell of the 4 9 4 grid and the only instruction participants received was to read this sentence. In the second task, cue words are presented in each cell and participants are asked to remember which word was presented in which cell. Finally, in the third task, recall for which word was presented in which cell is tested. In some cases (labeled a relearning trial), the cue word presented in the second task is an implication of the description presented in that same cell in the previous task. For example, ‘‘unjust’’ is presented in the same cell as where the unjust- implying description was presented. In such a case, assuming that a justice inference is already drawn spontaneously while reading the description during the first task (since no instructions were given to participants to form justice judgments), 5 this implies that participants are now learning a combination they already saw before. In effect, then, they are relearning the combination. In other cases (labeled control trials), the cue word presented in the second task is not an implication of the description presented in that same cell in the first task. For example, ‘‘unjust’’ is presented in the same cell as where a description that did not imply something related to justice was presented in the first task. So, in the control trials, relearning does not occur because a spontaneous justice inference cannot have been drawn while reading this description. If a justice inference is drawn spontaneously while reading the justice-implying description in the first task, recall should be better in relearning trials than in control trials, because in case of the relearning trial, the first exposure should have produced a residual effect that facilitates learning in the second task. These facilitation effects (Carlston & Skowronski, 1994; Ham & Vonk, 2003), were used here to study the possibility of spontaneous justice inferences in Experiment 2. 5 Indeed, not giving instructions to form a justice inference does not necessarily mean that people did not intentionally form one. However, as the relearning paradigm does give participants another instruction (namely to read the sentences presented to them), this research paradigm (see also Carlston & Skowronski, 1994) argues that they were not given the intention to form justice inferences but rather other intentions, and therefore, that participants (if the relearning effect is found) drew justice inferences spontaneously, that is, without haven been given the intention. People may spontaneously come up with the intention to draw justice inferences (instead of doing what we ask them: read the sentences), but in that case, their intentions would be at least spontaneously formed. Experiment 1 indicates that even when participants need to suppress drawing spontaneous inferences (to respond quickly and correctly as instructed) they still do so. Thereby, the research paradigm used in Experiment 1 indicates that even when something like ‘spontaneous intentions to draw justice inferences’ is inhibited, we find evidence of spontaneous justice inferences. Soc Just Res (2011) 24:43–65 55 123 The relearning paradigm is especially suited for our current means because it has not only been used to assess spontaneous social inferences, but also to assess spontaneous valence evaluation. That is, in a study by Ho, Skowronski, and Carlston (D. Carlston, personal communication, November 11, 2005), the relearning paradigm showed facilitation effects for general valence evaluation terms like ‘‘positive’’ and ‘‘negative,’’ indicating that valence evaluation spontaneously occurred when participants were presented with positive or negative valence- implying (behavior) descriptions, and can be detected by relearning paradigms. Because the experimental descriptions we used in Experiment 2 were specifically tailored to reflect justice-related issues, we expected participants who have been presented just-implying and unjust-implying descriptions to show stronger facili- tation effects for cue words that are related to justice than for cue words related to general valence evaluation, and exploratively we examined whether facilitation effects on general valence evaluation would be found in our justice-related relearning paradigm. Method Participants and Design Ninety-four students (33 men and 61 women) at Utrecht University participated in this experiment. All participants were native Dutch speakers and received 2 Euros for their participation of approximately 20 min. Participants were submitted to a 3 (trial type: relearning just-implying description vs. relearning unjust-implying description vs. control) 9 2 (cue type: justice-related word vs. valence-related word) within participants design. Stimulus Materials In the experiment, each participant completed 16 trials. Ten of these trials were filler trials and 6 were experimental trials. In each trial, a short description and a single cue word were presented to the participants. In the 6 experimental trials, each participant was presented with 2 just-implying descriptions, 2 unjust-implying descriptions, and 2 justice-unrelated descriptions. The descriptions were presented in a randomized order to participants. The just-implying and unjust-implying descriptions used in Experiment 2 are identical to those used in Experiment 1. The justice-unrelated descriptions were 2 general personality-trait-implying descriptions, taken at random from a set of 12 descriptions used in earlier research using this paradigm (see Ham & Vonk, 2003, Appendix, Descriptions 1–12). Finally, on the 10 filler trials, the remaining 10 descriptions from the Ham and Vonk (2003) materials were used. The cue words used on the experimental trials of Experiment 2 were identical to the justice-related and valence-related probe words used in Experiment 1. Like the descriptions, cue words used on the 10 filler trials were identical to those used in earlier research using this paradigm (see Ham & Vonk, 2003, Appendix, Trait words 1–10). For each experimental trial, at random a description and a cue word were chosen with this restriction that no two trials used the same materials. 56 Soc Just Res (2011) 24:43–65 123 Overview of the Grid-Relearning Paradigm The grid-relearning paradigm consisted of three main tasks: an exposure task, a relearning task, and a cued-recall task. In each task, a grid of 4 9 4 cells was displayed on participants’ screens. In the exposure task, 16 descriptions were presented: One by one, in random order and randomly distributed among the cells of the grid, a description was displayed for 6 s. In the relearning task, a randomly ordered cue word was displayed for 4 s in one of the cells. Participants were instructed to memorize which word was displayed in which cell. In half of the trials—the relearning trials—the cue word fitted an implication of the description that had been presented in the same cell during the exposure task. In the other half of the trials—the control trials—the displayed cue word did not fit an implication of the description presented in the same cell. Thus, these control trials did not allow relearning. Finally, during the cued-recall task, participants were asked to recall what cue word was shown in which cell in the relearning task. So, the grid-relearning paradigm consists of 16 trials, of which 8 were relearning trials and 8 were control trials. Of all 16 trials, 3 trials (2 of the 8 relearning trials and 1 of the 8 control trials) were used to detect spontaneous justice inferences and the other 3 trials (2 of the remaining 6 relearning trials and 1 of the remaining 7 control trials) were used to detect spontaneous evaluation of valence. The design of the current study only applies to these 6 trials. The remaining 10 trials (4 relearning trials and 6 control trials) were filler trials that did not use material related to justice. As in Experiment 1, the filler trials were included mainly to keep the ratio of justice- related descriptions to justice-unrelated descriptions low. Cue type was manipulated within the six experimental trials: In 3 trials, the cue word used in the relearning task was a justice-related word, and in the other 3 trials a valence-related word. Also within these 6 experimental trials, thus within subjects, trial type was manipulated. That is, participants completed two relearning trials that used a just-implying description, two relearning trials that used an unjust-implying description and two control trials. In the two types of relearning trials, the description was just-implying in the one type of relearning trials, and the description was unjust-implying in the other. In control trials, the descriptions in the exposure task did not imply anything related to just or unjust experiences. Procedure Seated behind a computer screen, participants individually went through the instructions and the tasks. They were told that they would participate in a study investigating communication. After receiving general instructions, participants completed a practice trial, consisting of completing a practice exposure task and a practice cued-recall task (both tasks were unrelated to social justice). After this, the actual experiment began, starting with the exposure task. Participants were asked to read all descriptions to be presented in the 4 9 4 grid. In each cell of the grid, in random order, a description was presented for 6 s. After a description had been presented, the screen turned blank for 2 s and then the next description was displayed in another cell. Soc Just Res (2011) 24:43–65 57 123 Between the exposure and the relearning task, a filler task (consisting of five word puzzles) was inserted to make it less easy for participants to recall the specific information presented in each cell (cf. Carlston & Skowronski, 1994). After the filler task, participants completed the relearning task. Identical to the practice task, participants were asked to remember what cue word was presented in which cell in this task. Each cue word was presented for 2 s in a cell of the grid, and then the screen turned blank for 2 s and the next word was presented in another cell. Between the relearning and the cued-recall task, a second filler task (consisting of a different set of five word puzzles) was inserted. The last task was the cued-recall task. In this task, participants were presented with the words presented in the relearning task, and asked in which cell that cue word had been shown during the relearning task. This question was asked about all 16 words, in random order. Every time, the question was presented underneath the 4 9 4 grid, and participants could answer by clicking on a cell with their mouse. So, the dependent variable indicated whether the participant answered a question correct or false (coded as ‘‘1’’ for a correct answer and ‘‘2’’ for an incorrect answer on a specific trial). After the grid-relearning paradigm, participants completed the justice sensitivity scales, identical to Experiment 1. As in Experiment 1, participants’ answers to each set of 10 questions were averaged to form the three reliable scales of JSSVictim (alpha = .81), JSSObserver (alpha = .86), and JSSPerpetrator (alpha = .82). Finally, participants were debriefed and thanked for their participation. Results and Discussion Facilitation Effects To determine whether we found evidence for spontaneous justice inferences in Experiment 2, we analyzed whether the justice relearning paradigm we developed yielded the facilitation effects predicted by our focal hypothesis of Experiment 2. Therefore, whether participants’ responses to the cued-recall on a trial were correct or incorrect was submitted to a 3 (trial type: relearning just-implying description vs. relearning unjust-implying description vs. control) 9 2 (cue type: justice-related word vs. valence-related word) repeated measures ANOVA (see Footnote 3). A difference in activation of spontaneous justice inferences as compared to sponta- neous valence evaluation would be indicated by facilitation effects on justice-related cue words for relearning trials over control trials. In other words, we expected an interaction between trial type and cue type such that superior recall would be found on the relearning trials for justice-related cue words. This interaction effect between trial type and cue type was indeed found, F(1, 93) = 3.15, p \ .05. As hypothesized, for justice-related cue words, relearning trials led to better recall of cue words than the control trials, indicated by a simple effect of trial type, F(1, 93) = 4.26, p \ .05. That is, a facilitation effect was found for justice-related cue words: Of all participants, 47.3% remembered the relearning trials correctly, whereas 30.9% remembered the control trial correctly, indicated by a contrast comparing (the two types of) relearning trials to control trials, F(1, 93) = 10,03, p \ .001. 58 Soc Just Res (2011) 24:43–65 123 Results of Experiment 2 also mirror those of Experiment 1 by showing that whether the descriptions implied just or unjust events did not influence facilitation effects on recall of justice-related cue words: Contrast analyses showed that the facilitation effect was found both for relearning trials using a just-implying description (in which case 48.9% of the participants answered correctly) compared to control trials (30.9% of the participants answered correctly), F(1, 93) = 7.96, p \ .01, as for relearning trials using an unjust-implying description (45.7% of the participants answered correctly) compared to control trials, F(1, 93) = 5.72, p \ .05. A direct comparison of these two effects suggests that just-implying versus unjust-implying sentences did not lead to better relearning of justice-related cue words, as indicated by a non-significant contrast effect, F \ 1. For valence-related cue words, a facilitation effect following the just- or unjust- implying descriptions was not found: Relearning trials were not remembered better than control trials for these cue words, F \ 1 (overall, 44.3% of the participants answered correctly on these trials). 6 Also, both the contrast of relearning trials using a just-implying description versus control trials and the contrast of relearning trials using an unjust-implying description to control trials were not significant, and also a contrast comparing (the two types of) relearning trials to control trials was not significant, all Fs \ 1. Furthermore, we explored whether the 4 just cue words led to different facilitation effects than the 4 unjust cue words. Replicating the pattern found in Experiment 1, results of Experiment 2 indicate a facilitation effect for both types of cue words: For just cue words, 57.9% of the participants remembered relearning trials correctly, whereas only 34.2% remembered the control trial correctly, F(1, 37) = 6.13, p \ .05, and for unjust cue words, this pattern was also found (58.1–24.3% of the participants), F(1, 37) = 11.24, p \ .01, independent of whether the description implied just or unjust events, Fs \ 1. We also explored whether the 2 positive valence-related cue words led to different facilitation effects than the 2 negative valence-related cue words. Although these analyses in Experiment 1 did reveal some evidence of specific spontaneous valence-evaluations, results of the current experiment did not indicate facilitation effects, neither when the probe word was related to positive or negative valence nor when the description implied a just or an unjust event, Fs \ 1. Insights from Differences in Justice Sensitivity Additionally, Experiment 2 corroborates the findings obtained in Experiment 1 in that spontaneous justice inferences and the same individual differences in justice sensitivity (JSSVictim, JSSPerpetrator) were again significantly related: As in Exper- iment 1, we analyzed whether participants’ scores on the justice sensitivity scale (JSS) subscales were related to a measure we constructed that indicated the strength of spontaneous activation of justice-related cue words. This indication of the 6 A direct comparison between findings for justice-related cue words and valence-related cue words cannot be made because these types of cue words consist of different words that can be more easy or more difficult to remember. Soc Just Res (2011) 24:43–65 59 123 strength of spontaneous justice inferences was calculated by subtracting scores on control trials from scores on experimental trials for trials using justice-related cue words. A regression analysis with all three subscales of the JSS as predictors, and this measure for spontaneous justice inferences as the criterion, again showed JSSPerpetrator, Beta = .34, t(90) = 2.61, p \ .05, and JSSVictim, Beta = .25, t(90) = 2.27, p \ .05, to be significant predictors, whereas JSSObserver was not a significant predictor, Beta = .032, t(90) = .25, p = .80. General Discussion The current findings support and extend earlier research that provided the first evidence for spontaneous justice inferences (Ham & Van den Bos, 2008). That is, the current research provides further evidence that people can draw inferences about the justness of situations spontaneously, using the identical research paradigm to assess spontaneous justice inferences as earlier research (Ham & Van den Bos, 2008; the probe recognition paradigm) but also using a new research paradigm (the grid-relearning paradigm). More specifically, in two experiments, using the two different implicit measurement paradigms, we found evidence that people spontaneously draw inferences about the justness of events. In Experiments 1 and 2, we found evidence that people draw spontaneous inferences about social justice when reading a self-relevant situation description of a just or an unjust event. That is, we found that when people read short situation descriptions that portray just or unjust events, they spontaneously activate social justice inferences, resulting in stronger interference effects in a probe-recognition study (Experiment 1) and stronger facilitation effects in a relearning study (Experiment 2). Because of the features of the currently used research paradigms described earlier (for further details, see Carlston & Skowronski 1994; McKoon & Ratcliff, 1986; see also De Houwer & Moors, 2007), we know that spontaneous justice inferences studied here have been formed in unintentional (indicated by both research paradigms) and uncontrollable (indicated by the probe recognition paradigm, see also, Bargh, 1994) ways by our participants, and we can assume that the justice inferences drawn were activated spontaneously while reading the descriptions (see Uleman, 1999).The current results provide further evidence that in many justice-relevant situations people will draw inferences about justice levels of that situation without the necessity of any intentions to assess justice levels, and without being able to refrain from doing so. Therefore, this finding presents empirical evidence to the ongoing debate on the nature of justice and moral judgments mentioned in the introduction (see, e.g., Haidt, 2001): justice judgments do not necessarily need careful and intentional reasoning, but can also be made unintentionally. An implication of the current findings therefore is that it can be expected that people will spontaneously draw inferences about social justice in justice-relevant situations, also when they are busy doing other things (e.g., Van den Bos, Peters, Bobocel, & Ybema, 2006). Furthermore, the results presented here suggest that spontaneous justice inferences should not be equated with spontaneous general evaluation of valence. That is, both experiments clearly indicated stronger spontaneous justice inferences 60 Soc Just Res (2011) 24:43–65 123 than spontaneous general valence evaluation, indicated by stronger interference effects for justice-related words than for valence-related words in Experiment 1, and stronger facilitation effects for justice-related words than for valence-related words in Experiment 2. Thus, both the experiments show that justice-implying descriptions influenced activation of justice-related words stronger than activation of valence- related words. Had spontaneous justice inferences been a process of more general valence evaluation, we should have found no significant differences between justice-related and valence-related probes or cues, or would have found the opposite pattern of results, because, as Pretest 2 indicates, our valence-related words are evaluated more extreme on a valence dimension than the justice-related words and both research paradigms are sensitive to detecting both spontaneous justice inferences as well as spontaneous valence evaluation. 7 This last aspect of our findings suggests that, on the one hand, as Van den Bos et al. (2008) suggest, the cognitive process of assessing social justice seems to be a process identical in its characteristics to other higher mental processes, but, on the other hand, it also seems to constitute an independent higher mental processes that can have unique qualities, at least in the two experiments presented here. Another major aim of the current manuscript was to assess the relation between our measures of spontaneous justice judgments and sensitivity to issues of social justice. In Experiments 1 and 2, we found that sensitivity for social justice issues (Schmitt, 1996) predicted the strength of spontaneous justice inferences. More precisely, the subscales of JSSVictim and JSSPerpetrator predicted the strength of spontaneous justice inferences, whereas the subscale of JSSObserver did not. This indicates that the more sensitive people are to experiencing injustice towards oneself (JSSVictim) and to profiting themselves from unfair events (JSSPerpetrator), the more strongly they spontaneously drew justice inferences in our studies. Contrastingly, spontaneous justice inferences remained independent of sensitivity to observing that others are treated unfairly (JSSObserver). An explanation for this might be that our stimulus material only used descriptions of justice-relevant situations applied to participants themselves (as, e.g., ‘‘You made a test of 40 questions. Your grade is based on 1 of your 40 answers’’) and did not use descriptions of justice-relevant situations applied to other people. So, interestingly, this suggests that spontaneous justice inferences about self-involving justice-related situations can be predicted by specific sensitivity to issues of social justice, namely sensitivity to self-involving issues (JSSVictim and JSSPerpetrator), and not by sensitivity to other-involving issues of social justice. Future research may want investigate whether spontaneous justice inferences about other-involving justice-related situations can be predicted by sensitivity to other-involving issues of social justice (the JSSObserver subscale). The current findings corroborate our argument for the idea that frequently assessing (self-involving) social justice (reflected in high levels of justice sensitivity) will lead to more spontaneous (self-involving) justice inferences. Thereby, these findings are 7 That is, Experiments 1 and 2 indicate that both research paradigms are sensitive to detection of spontaneous justice inferences. In addition, as mentioned earlier, findings of Experiment 1 suggest that the probe recognition paradigm is sensitive to detecting spontaneous valence evaluation, and earlier research (by Ho, Skowronski, & Carlston; D. Carlston, personal communication, November 11, 2005) successfully used the relearning paradigm of Experiment 2 to detect spontaneous valence evaluation. Soc Just Res (2011) 24:43–65 61 123 relevant to recent work by Baumert and Schmitt (2009) that frames justice sensitivity in terms of the accessibility of justice categories. So, in Experiments 1 and 2 we found evidence for spontaneous inferences about social justice, but no evidence that unjust-implying descriptions lead to stronger automatic activation of justice concerns than just-implying descriptions. Furthermore, the current two studies did also not suggest differences in activation of just-related (e.g., ‘‘just’’) from unjust-related concepts (e.g., ‘‘unjust’’) dependent on whether a description implied a just or an unjust event. This latter finding is in line with the finding that negations of evaluative stimuli (e.g., ‘‘no snakes’’) do not influence spontaneous evaluative responses to these stimuli (Deutsch, Gawronski, & Strack, 2006; but see also Mayo, Schul & Burnstein, 2004), even though spontaneous responses to stimuli that consist of traits versus their antonyms (e.g., ‘‘cruel’’ vs. ‘‘kind’’) can vary (Todorov & Uleman, 2002). A measure of concept activation (as the two research paradigms we used in Experiments 1 and 2) might be very sensitive to activation levels of concepts (represented by words or related words), but might not be the best paradigm to assess activation differences between concepts represented by words related to one another. Future research may employ implicit measurement paradigms that are better suited for these specific questions, and in addition study possible mediators of the strength of spontaneous justice inferences. Recently, Uleman et al. (2008) indicated that spontaneous inferences have been insufficiently linked to other phenomena and theories. The current research makes this link in three ways: By integrating the social cognition (including spontaneous inference literature) and social justice literatures, disentangling spontaneous inferences from spontaneous general evaluations, and assessing the covariance between spontaneous justice inferences and sensitivity to justice. Thereby, it adds important knowledge to the literature on spontaneous inferences. A final merit of the current research we want to mention is that it provides methodological tools that can be used in future research to get more fine-grained insights into the social justice judgment process. That is, we have tailored two precise research paradigms and ditto stimulus materials especially to assess and test spontaneous justice inferences. More broadly, the current findings have important implications for proponents of models in moral psychology and social justice research that assume either controlled or spontaneous cognitive processes for making justice judgments or moral judgments. Because we now have strong and additional evidence that justice judgments can occur spontaneously, we can conclude that not necessarily are controlled processes needed for people to come to justice judgments. Therefore, the current results suggest a disconfirmation of an important assumption of earlier justice models stating that the justice judgment process constitutes a particularly controlled process (see, e.g., Jasso, 1999; Sabbagh et al., 1994). Rather, we can conclude that cognitive reactions to justice-related events probably consist of both spontaneous (as indicated by the current research) and controlled (as indicated by earlier research) processes (see, e.g., Strack & Deutsch, 2004), and future research could investigate the relation between these processes. This could lead to the conclusion that, whether 62 Soc Just Res (2011) 24:43–65 123 born-in (De Waal, 2001) or through socialization (see, e.g., Lerner, Miller, & Holmes, 1976), humans seem to be able to make justice judgments spontaneously. In sum, the current research teaches us several things about justice inferences: it provides strong evidence that spontaneous social justice inferences can occur in multiple research paradigms, these inferences constitute a process separate from spontaneous general evaluation of valence, and spontaneous justice inferences covary with individual differences in sensitivity to justice. Also, we now have available research mechanisms to directly assess these spontaneous justice inferences. Thereby, the current research sheds light on the nature of justice inferences. It suggests that the nature of people’s responses to justice-relevant situations and events might at least partly be spontaneous and unintentional. So, when assessing people’s justice-relevant responses, future research should take into account people’s spontaneous justice inferences. Because reflective cognitions (e.g., controlled justice judgments) and implicit cognitions (e.g., spontaneous justice inferences) relate to behavior differently (Strack & Deutsch, 2004), spontaneous justice inferences might prove to be important determinants of behavior in crucial situations. For example, recent research indicates that implicit attitudes about consumer products are good product choice predictors in situations of high time- constraint (Friese, Waenke, & Plessner, 2006). Future research might investigate the relationship between controlled and spontaneous justice inferences and various kinds of justice-related behavior. Thereby, we would not only uncover more about the nature of justice inferences, but also about the implications of the (spontaneous, implicit) nature of justice inferences on human behavior in society, politics, organizations, and intimate relationships. Acknowledgments The research reported in this article was supported by a VICI innovational research grant from the Netherlands Organization for Scientific Research (NWO, 453.03.603) awarded to Kees van den Bos. We thank Annemarie Loseman for providing the Dutch translation of the justice sensitivity scale. Open Access This article is distributed under the terms of the Creative Commons Attribution Non- commercial License which permits any noncommercial use, distribution, and reproduction in any med- ium, provided the original author(s) and source are credited. References Bargh, J. A. (1994). The four horsemen of automaticity: Awareness, efficiency, intention, and control in social cognition. In R. S. Wyer Jr. & T. K. Srull (Eds.), Handbook of social cognition (2nd ed., pp. 1–40). Hillsdale, NJ: Erlbaum. Baumert, A., & Schmitt, M. (2009). Justice-sensitive interpretations of ambiguous situations. Australian Journal of Psychology, 61, 6–12. Beauchamp, T. L. (2001). Philosophical ethics: An introduction to moral philosophy (3rd ed.). Boston: McGraw-Hill. Carlston, D. E., & Skowronski, J. J. (1994). Savings in the relearning of trait information as evidence for spontaneous inference generation. Journal of Personality and Social Psychology, 66, 840–856. Soc Just Res (2011) 24:43–65 63 123 Colquitt, J. A., & Shaw, J. C. (2005). How should organizational justice be measured? In J. Greenberg & J. A. Colquitt (Eds.), Handbook of organizational justice (pp. 113–152). Mahwah, NJ: Lawrence Erlbaum Associates. Correia, I., Vala, J., & Aguitar, P. (2007). Victim’s innocence, social categorization, and the threat to the belief in a just world. Journal of Experimental Social Psychology, 43, 31–38. De Houwer, J. (2003). The extrinsic affective Simon task. Experimental Psychology, 50, 77–85. De Houwer, J., & Moors, A. (2007). How to define and examine the implicitness of implicit measures. In B. Wittenbrink & N. Schwarz (Eds.), Implicit measures of attitudes (pp. 179–194). New York: Guilford Press. De Waal, F. (2001). The ape and the sushi master: Cultural reflections of a primatologist. New York: Basic Books. Deutsch, R., Gawronski, B., & Strack, F. (2006). At the boundaries of automaticity: Negation as reflective operation. Journal of Personality and Social Psychology, 91, 386–405. Fazio, R. H. (2001). On the automatic activation of associated evaluations: An overview. Cognition and Emotion, 15, 115–141. Folger, R. (Ed.). (1984). The sense of injustice: Social psychological perspectives. New York: Plenum. Friese, M., Waenke, M., & Plessner, H. (2006). Implicit consumer preferences and their influence on product choice. Psychology & Marketing, 23, 727–740. Greenberg, J. (1986). Determinants of perceived fairness of performance evaluations. Journal of Applied Psychology, 71, 340–342. Hafer, C. L. (2000). Do innocent victims threaten the belief in a just world? Evidence from a modified Stroop task. Journal of Personality and Social Psychology, 79, 165–173. Haidt, J. (2001). The emotional dog and its rational tail: A social intuitionist approach to moral judgment. Psychological Review, 108, 814–834. Ham, J., & Van den Bos, K. (2008). Not fair for me! The influence of personal relevance on social justice inferences. Journal of Experimental Social Psychology, 44, 699–705. Ham, J., & Vonk, R. (2003). Smart and easy: Co-occurring activation of spontaneous trait inferences and spontaneous situational inferences. Journal of Experimental Social Psychology, 39, 434–447. Jasso, G. (1999). How much injustice is there in the world? Two new justice indexes. American Sociological Review, 64, 133–168. Kay, A. C., & Jost, J. T. (2003). Complementary justice: Effects of ‘‘poor but happy’’ and ‘‘poor but honest’’ stereotype exemplars on system justification and implicit activation of the justice motive. Journal of Personality and Social Psychology, 85, 823–837. Kirk, R. E. (1982). Experimental design: Procedures for the behavioral sciences. Belmont, CA: Brooks/ Cole. Kohlberg, L. (1969). Stage and sequence: The cognitive-developmental approach to socialization. In D. A. Goslin (Ed.), Handbook of socialization theory and research (pp. 347–480). Chicago: Rand McNally. Lerner, M. J., & Goldberg, J. H. (1999). When do decent people blame victims? The differing effects of the explicit/rational and implicit/experiential cognitive systems. In S. Chaiken & Y. Trope (Eds.), Dual-process theories in social psychology (pp. 627–640). New York: Guilford Press. Lerner, M. J., Miller, D. T., & Holmes, J. G. (1976). Deserving and the emergence of forms of justice. In L. Berkowitz & E. Walster (Eds.), Advances in experimental social psychology (Vol. 9, pp. 133–162). New York: Academic Press. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum. Mayo, R., Schul, Y., & Burnstein, E. (2004). ‘‘I am not guilty’’ vs ‘‘I am innocent’’: Successful negation may depend on the schema used for its encoding. Journal of Experiment Social Psychology, 40, 433–449. McKoon, G., & Ratcliff, R. (1986). Inferences about predictable events. Journal of Experimental Psychology. Learning, Memory, and Cognition, 12, 82–91. Mikula, G., & Wenzel, M. (2000). Justice and social conflict. International Journal of Psychology, 35, 126–135. Piaget, J. (1975). The moral judgment of the child. London: Routledge and Kegan Paul. (Original work published 1932). Ratcliff, R. (1993). Methods for dealing with reaction time outliers. Psychological Bulletin, 114, 510–532. Sabbagh, C., Dar, Y., & Resh, N. (1994). The structure of social justice judgments: A facet approach. Social Psychology Quarterly, 57, 244–261. 64 Soc Just Res (2011) 24:43–65 123 Schmitt, M. (1996). Individual differences in sensitivity to befallen injustice. Personality and Individual Differences, 21, 3–20. Schmitt, M., Gollwitzer, M., Maes, J., & Arbach, D. (2005). Justice sensitivity: Assessment and location in the personality space. European Journal of Psychological Assessment, 21, 202–211. Smith, E. R. (1994). Procedural knowledge and processing strategies in social cognition. In R. S. Wyer Jr. & T. K. Srull (Eds.), Handbook of social cognition: Vol. 1, Basic processes (2nd ed., pp. 99–151). Hillsdale, NJ: Erlbaum. Smith, E. R., & Lerner, M. (1986). Development of automatism of social judgments. Journal of Personality and Social Psychology, 50, 246–259. Strack, F., & Deutsch, R. (2004). Reflective and impulsive determinants of social behavior. Personality and Social Psychology Review, 8, 247–320. Todorov, A., & Uleman, J. S. (2002). Spontaneous trait inferences are bound to actors: Evidence from false recognition. Journal of Personality and Social Psychology, 83, 1051–1065. Turiel, E. (1983). The development of social knowledge: Morality and convention. Cambridge: Cambridge University Press. Uleman, J. S. (1999). Spontaneous versus intentional inferences in impression formation. In S. Chaiken & Y. Trope (Eds.), Dual-process theories in social psychology (pp. 141–160). New York: Guilford press. Uleman, J. S., Adil Saribay, S., & Gonzalez, C. M. (2008). Spontaneous inferences, implicit impressions and implicit theories. Annual Review of Psychology, 59, 329–360. Uleman, J. S., Hon, A., Roman, R., & Moskowitz, G. B. (1996a). On-line evidence for spontaneous trait inferences at encoding. Personality and Social Psychology Bulletin, 22, 377–394. Uleman, J. S., Newman, L. S., & Moskowitz, G. B. (1996b). People as flexible interpreters: Evidence and issues from spontaneous trait inference. In M. P. Zanna (Ed.), Advances in experimental social psychology (Vol. 28, pp. 211–279). San Diego, CA: Academic Press. Van den Bos, K., Ham, J., Lind, E. A., Simonis, M., Van Essen, W. J., & Rijpkema, M. (2008). Justice and the human alarm system: The impact of exclamation points and flashing lights on the justice judgment process. Journal of Experimental Social Psychology, 44, 201–219. Van den Bos, K., Peters, S. L., Bobocel, D. R., & Ybema, J. F. (2006). On preferences and doing the right thing: Satisfaction with advantageous inequity when cognitive processing is limited. Journal of Experimental Social Psychology, 42, 273–289. Soc Just Res (2011) 24:43–65 65 123 On Justice Knowledge Activation: Evidence for Spontaneous Activation of Social Justice Inferences Abstract The Current Research Experiment 1 Method Participants and Design Stimulus Materials Experimental Procedure Results Response Latencies Error rates Insights from Differences in Justice Sensitivity Discussion Experiment 2 Method Participants and Design Stimulus Materials Overview of the Grid-Relearning Paradigm Procedure Results and Discussion Facilitation Effects Insights from Differences in Justice Sensitivity General Discussion Acknowledgments References << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated v2 300% \050ECI\051) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 149 /ColorImageMinResolutionPolicy /Warning /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 149 /GrayImageMinResolutionPolicy /Warning /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 599 /MonoImageMinResolutionPolicy /Warning /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /CreateJDFFile false /Description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> /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e9ad88d2891cf76845370524d53705237300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc9ad854c18cea76845370524d5370523786557406300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /CZE <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> /DAN <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> /ESP <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> /ETI <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> /FRA <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> /GRE <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a stvaranje Adobe PDF dokumenata najpogodnijih za visokokvalitetni ispis prije tiskanja koristite ove postavke. Stvoreni PDF dokumenti mogu se otvoriti Acrobat i Adobe Reader 5.0 i kasnijim verzijama.) /HUN <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> /ITA <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> /JPN <FEFF9ad854c18cea306a30d730ea30d730ec30b951fa529b7528002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b4f7f75283057307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a306b306f30d530a930f330c8306e57cb30818fbc307f304c5fc59808306730593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020ace0d488c9c80020c2dcd5d80020c778c1c4c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /LTH <FEFF004e006100750064006f006b0069007400650020016100690075006f007300200070006100720061006d006500740072007500730020006e006f0072011700640061006d00690020006b0075007200740069002000410064006f00620065002000500044004600200064006f006b0075006d0065006e007400750073002c0020006b00750072006900650020006c0061006200690061007500730069006100690020007000720069007400610069006b007900740069002000610075006b01610074006f00730020006b006f006b007900620117007300200070006100720065006e006700740069006e00690061006d00200073007000610075007300640069006e0069006d00750069002e0020002000530075006b0075007200740069002000500044004600200064006f006b0075006d0065006e007400610069002000670061006c006900200062016b007400690020006100740069006400610072006f006d00690020004100630072006f006200610074002000690072002000410064006f00620065002000520065006100640065007200200035002e0030002000610072002000760117006c00650073006e0117006d00690073002000760065007200730069006a006f006d00690073002e> /LVI <FEFF0049007a006d0061006e0074006f006a00690065007400200161006f00730020006900650073007400610074012b006a0075006d00750073002c0020006c0061006900200076006500690064006f00740075002000410064006f00620065002000500044004600200064006f006b0075006d0065006e007400750073002c0020006b006100730020006900720020012b00700061016100690020007000690065006d01130072006f00740069002000610075006700730074006100730020006b00760061006c0069007401010074006500730020007000690072006d007300690065007300700069006501610061006e006100730020006400720075006b00610069002e00200049007a0076006500690064006f006a006900650074002000500044004600200064006f006b0075006d0065006e007400750073002c0020006b006f002000760061007200200061007400760113007200740020006100720020004100630072006f00620061007400200075006e002000410064006f00620065002000520065006100640065007200200035002e0030002c0020006b0101002000610072012b00200074006f0020006a00610075006e0101006b0101006d002000760065007200730069006a0101006d002e> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor prepress-afdrukken van hoge kwaliteit. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /POL <FEFF0055007300740061007700690065006e0069006100200064006f002000740077006f0072007a0065006e0069006100200064006f006b0075006d0065006e007400f300770020005000440046002000700072007a0065007a006e00610063007a006f006e00790063006800200064006f002000770079006400720075006b00f30077002000770020007700790073006f006b00690065006a0020006a0061006b006f015b00630069002e002000200044006f006b0075006d0065006e0074007900200050004400460020006d006f017c006e00610020006f007400770069006500720061010700200077002000700072006f006700720061006d006900650020004100630072006f00620061007400200069002000410064006f00620065002000520065006100640065007200200035002e0030002000690020006e006f00770073007a0079006d002e> /PTB <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> /RUM <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> /RUS <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> /SKY <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> /SLV <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> /SUO <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> /SVE <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> /TUR <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> /UKR <FEFF04120438043a043e0440043804410442043e043204430439044204350020044604560020043f043004400430043c043504420440043800200434043b044f0020044104420432043e04400435043d043d044f00200434043e043a0443043c0435043d044204560432002000410064006f006200650020005000440046002c0020044f043a04560020043d04300439043a04400430044904350020043f045604340445043e0434044f0442044c00200434043b044f0020043204380441043e043a043e044f043a04560441043d043e0433043e0020043f0435044004350434043404400443043a043e0432043e0433043e0020043404400443043a0443002e00200020042104420432043e04400435043d045600200434043e043a0443043c0435043d0442043800200050004400460020043c043e0436043d04300020043204560434043a0440043804420438002004430020004100630072006f006200610074002004420430002000410064006f00620065002000520065006100640065007200200035002e0030002004300431043e0020043f04560437043d04560448043e04570020043204350440044104560457002e> /ENU (Use these settings to create Adobe PDF documents best suited for high-quality prepress printing. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) /DEU <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> >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToCMYK /DestinationProfileName () /DestinationProfileSelector /DocumentCMYK /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles false /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [595.276 841.890] >> setpagedevice 
work_grfbr2buobevfiwpgmch4xdlni	----	The Chief Justice as Executive: Judicial Conference Committee Appointments Cornell University Law School From the SelectedWorks of Dawn Chutkow 2014 The Chief Justice as Executive: Judicial Conference Committee Appointments Dawn Chutkow, Cornell University Law School Available at: https://works.bepress.com/dawn_chutkow/1/ http://www.lawschool.cornell.edu/ https://works.bepress.com/dawn_chutkow/ https://works.bepress.com/dawn_chutkow/1/ The Chief Justice as Executive JUDICIAL CONFERENCE COMMITTEE APPOINTMENTS D AW N M . C H U T K O W, Cornell University ABSTRACT This article is the first comprehensive empirical study of chief justice appointments to the Judicial Con- ference committees of the US Courts, entities with influence over substantive public and legal policy. Us- ing a newly created database of all judges appointed to serve on Judicial Conference committees between 1986 and 2012, the results indicate that a judge’s partisan alignment with the chief justice matters, as do personal characteristics such as race, experience on the bench, and court level. These results support claims that Judicial Conference committee selection, membership, and participation may present a vehicle for advancing the chief justice’s individual political and policy interests. The chief justice of the United States sits at not only the apex of a multileveled judicial decision-making body but also the apex of an increasingly vast administrative organiza- tion that influences federal courts and public policy. The federal judiciary commands an annual budget now in the billions and encompasses a workforce, both judicial and non- judicial, exceeding 30,000. The courts’ complex and sizable governmental face is repre- sented, if not controlled, by the chief justice and the judges he selects to serve on the Judicial Conference committees that set policy for the federal judiciary. The growth of the federal judiciary offers opportunities for political entrepreneurs, like the chief justice, to use the administrative structure and the incentives it creates to influence policy both in- ternal and external to the judiciary. These committees shape how the federal courts func- tion. As well, committees engage in interbranch contacts whose scope and nature include judicial position taking on matters of substantive legal policy. This article is the first com- prehensive empirical study of appointments to the Judicial Conference committees, the criteria by which a chief justice selects committee members and committee chairs, and My thanks to Theodore Eisenberg ð1947–2014Þ, Martin Wells, participants in the 2013 Cornell–Tel Aviv Empirical Legal Studies Conference, two anonymous reviewers, and the journal’s editorial board for helpful comments on earlier versions of the article. My thanks as well to Nicole Heise for her ex- cellent research assistance. Contact the author at dmc66@cornell.edu. Journal of Law and Courts (Fall 2014) © 2014 by the Law and Courts Organized Section of the American Political Science Association. All rights reserved. 2164-6570/2014/0202-0006$10.00 whether those selection criteria evidence an ideological component that suggests Judicial Conference committees can be used to forward the chief justice’s policy preferences in ways that move beyond general judicial administration. This article exploits a newly created database of all judges appointed by the chief justice to serve on Judicial Conference committees between 1986 and 2012. The results indicate that a judge’s partisan alignment with the chief justice matters for committee service. Personal characteristics such as race, experience on the bench, and court level also influence appointments. These results suggest that the avenues available to a chief justice for shaping legal policy extend beyond his role within the Court decision-making process. Control over the administrative side of the federal judiciary, through control over Judicial Conference committee selection, membership, and participation, may also be used to advance the chief justice’s interests in ways that are not ideologically neutral. JUDICIAL CONFERENCE COMMITTEES The Judicial Conference oversees the management of the federal court system aided by both the Administrative Office of the US Courts ðhereafter, “Administrative Office”Þ and the Federal Judicial Center. The Judicial Conference is chaired by the chief justice ðthe only Supreme Court justice who participatesÞ. It conducts the business of the federal courts through an organization of specialized committees whose membership is ap- pointed exclusively by the chief justice and drawn from the entire federal judiciary ðFish 1973; Wheeler 2003Þ. These committees engage in the substantive work of the Judicial Conference and act as gatekeepers with respect to the formulation of administrative ju- dicial policy ðFish 1973; Tacha 1995; Wheeler 2003Þ. Between 1986 and 2012, 25 stand- ing committees served the Judicial Conference. These committees advocate for certain legislative policy positions by providing Congress with assessments of proposed leg- islation’s impact on the federal courts, including substantive reviews of pending criminal laws, bankruptcy statutes, and the appropriate allocation of jurisdiction between the fed- eral and the state systems. They oversee and draft rules of procedure and evidence that govern the operation of federal civil, criminal, appellate, and bankruptcy litigation. Com- mittees prepare and present the federal judiciary’s budgetary requests to Congress, man- age nonjudicial staff and employment issues, identify additional judgeship needs, and report on court performance. Scholars studying this organizational structure are fairly uniform in their assessment that the Judicial Conference follows the conclusions and policy prescriptions reported out of the various committees ðFish 1973; Resnik 2000Þ. The Chief Justice’s Committee Control The chief justice has plenary power over the Judicial Conference committees’ structure and membership. He controls the number of committees, terms of service, chairs, num- ber and appointment of members, and committee jurisdiction ðJudicial Conference of the US Courts 1937, 1948, 1987; Administrative Office of the US Courts 2014Þ. Cur- 3 0 2 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 rently, active and senior Article III judges perform the bulk of committee service. Su- preme Court justices ðother than the chief justiceÞ do not serve in the Judicial Con- ference or on the standing committees, although they may serve on special committees. Appointment criteria are defined by the chief justice. Judges may express interest in service or recommend other judges for service by notifying the Administrative Office. Since 1987, committee service is limited to two 3-year terms per judge, with allowances for additional term extensions or committee chairperson extensions by the chief justice in “exceptional” cases ðJudicial Conference of the US Courts 1987, September 27, 60Þ. Prior Research, Organizational Structure, and Chief Justice Power It is well understood that administrative and organizational structures offer opportunities to influence policy outcomes and consolidate power. The chief justice’s unique position in the federal judiciary, and his potentially heightened ability to influence legal policy, pri- marily lies not in decision making where he is one vote of nine but rather in the accretion over time of administrative and customary powers. These include, most notably, opin- ion assignment, docket and case conference control, appointment power over special tribunals and panels, and—of interest here—appointments to the Judicial Conference committees ðFish 1984; Ruger 2006; George and Williams 2013Þ. The consolidation of institutional power in the office of the chief justice raises concerns, since the concentra- tion of this power is placed within the control of a single politically insulated actor ðCross and Lindquist 2006; Ruger 2006; Pfander 2013Þ. How the chief justice wields the appointment power remains largely unstudied from an empirical stand point. The few studies conducted are suggestive of strategic behavior, but with mixed results. Ruger ð2007Þ finds evidence of conservative appointments by Chief Justice Rehnquist to the Foreign Intelligence Surveillance Act Court but notes that these appointments do not appear out of step with the general leanings of the federal bench. Stancil ð2010Þ examines the power of Judicial Conference committees from a game theoretic perspective, noting their capacity to influence substantive law through rule-making procedures. Nixon ð2003Þ concludes that political ideology influences chief justice appointments to the Judicial Conference Executive Committee. Anecdotal evidence supports the contention that the chief justice uses Judicial Con- ference committee appointments in a strategic way, selecting judges who align with the chief justice’s political point of view and eschewing judges whose policies are too distant ðFish 1973; Resnik 1998Þ. Chief Justice Warren reportedly used the committee struc- ture as a means to orchestrate and bolster his positions before the Judicial Conference, as well as to reward policy allies ðFish 1973, 33–34, 268Þ. Chief Justice Hughes required personal preapproval of important committee reports before submitting them to the main body, which in turn reflexively followed the committee recommendations ð259Þ. More recently, then-senator Joseph Biden commented during a Senate Judiciary Com- mittee hearing on additional judgeships, “When it comes to playing politics and dol- Chief Justice as Executive | 3 0 3 ing out patronage, the Judicial Conference has no equal that I have seen before this committee.”1 Judicial Conference committee service provides value to the serving member. District court and special court judges fought hard to be included in both the conference and its committees ðFish 1973Þ. Federal judges have few opportunities to distinguish themselves ðPosner 1996Þ, their salary and tenure being uniform across district and appellate levels, respectively. Committee service that differentiates a judge from her peers and provides increased opportunity to interact with the executive and congressional branches may function as a kind of judicial patronage. Committees and Substantive Policy Apprehensions about an organized judiciary and the chief justice using the Judicial Con- ference to blur lines between administrative and political matters are not new, dating back to the initial authorization of the Judicial Conference by the Judiciary Act of 1922 ðPadelford 1932Þ. Many of these concerns focus on the potential for the judiciary to influence legislative outcomes and generally are of two kinds. First, the creation of vari- ous procedural rules for the federal judiciary, a task controlled by the related rules com- mittees of the Judicial Conference, may advance judicial self-interest, including policy preferences such as reductions in specific caseload types or litigation barriers aimed only at certain kinds of claimants ðRuger 2006; Stancil 2010; Pfander 2013Þ. Second, and relatedly, there is unease with the potential effects of systemized judicial interaction with Congress under the auspices of providing advice regarding pending legislation and its impact on the federal judiciary ðGeyh 1996, 2006; Cross and Lindquist 2006; Resnik 2010Þ. Both these points skirt a fine line between Congress’s need for relevant informa- tion regarding the judiciary’s experience with certain laws and issue-based advocacy that some scholars note create confounds for a judiciary that may also find some issues of re- lated legislation challenged in the courts ðResnik 2000, 2010; Ruger 2004, 2006Þ. In the 27 years covered by this study, Judicial Conference committee members ap- peared before or reported to Congress over 300 times on a regularized basis, including committee member testimony on pending legislation or other legislative matters.2 Less susceptible to definitive count are ongoing and equally regularized formal and informal contacts with congressional committees and members of Congress. The subject areas that fall under this umbrella are numerous and nontrivial. The Judicial Conference, for example, has long opposed mandatory minimum sentences for federal crimes, usually citing the need for greater judicial control over sentencing to alleviate inequitable and inconsistent outcomes ða factor that induced this type of legislationÞ and the costs of increased prison and supervised release populations. In keeping with this long-standing 1. Hearings on S.2027 and S.2648 before the Senate Committee on the Judiciary, 101st Cong., 2d sess. 308 ð1990Þ; cited in Nihan ð1995Þ. 2. Congressional Record, September 30, 1986, to December 31, 2012. 3 0 4 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 position, Judge Bell, chair of the Judicial Conference’s Criminal Law Committee, wrote Senator Leahy in 2012 advocating for the passage of the Justice Safety Valve Act of 2013, arguing that mandatory sentences “are wasteful of taxpayer dollars, produce unjust re- sults, are incompatible with the concept of guideline sentencing, and could undermine confidence in the judicial system” ðBell 2013, 2Þ. The official organs of the federal judiciary consistently oppose the creation of new federal rights ðJudicial Conference of the US Courts 1995; de Figueiredo and Tiller 1996; Posner 1996Þ or at the very least resist new federal rights not paired with substantial ðand often highly unlikelyÞ increases in judicial resources. In 2013, the conference took a strong position on pending immigration legislation expressing deep concerns about in- tolerable caseloads likely associated with increased enforcement mechanisms, broadened legalization and citizenship programs, and the expansion of the E-Verify program to man- date employer participation ðAdministrative Office of the US Courts 2013; Committee on the Judiciary 2013Þ.3 Immigration reform remains a contentious political issue at this writing, and no doubt legislative change will generate considerable litigation. To round out the list, the Judicial Conference took positions on such widely diver- gent legislative issues as domestic violence on Native American land ðSeptember 2012Þ, the Hague Convention ðMarch 2011Þ, probation officer search and seizure powers ðMarch 2008aÞ, prison litigation reform ðSeptember 2008bÞ, class actions ðSeptember 2007bÞ, wiretapping laws ðMarch 2007aÞ, restrictions on social security claims, diversity jurisdiction, the North American Free Trade Agreement, asbestos-related claims, habeas jurisdiction, medical privacy issues, the General Agreement on Tariffs and Trade, gov- ernmental taking of private property, and animal research ðAdministrative Office of the US Courts 1994, 2005; Nixon 2003Þ. Since so much public policy is either created or challenged in federal courts ðOlson 1991; Kagan 2001Þ, advocating restrictions on litigant access to the federal system may not be a policy-neutral endeavor ðResnik 1998, 2000, 2010; Stancil 2010Þ. Limitations on habeas petitions to federal courts, for exam- ple, affect prisoner rights litigation and federal review of state action by transferring more power to the state courts. Curtailed review of administrative actions in social security and health care serves to bolster the quasi-judicial power of agencies. The remainder of the article empirically examines chief justice selections to the Ju- dicial Conference committees, discusses the results, and then concludes. The chief jus- tice’s plenary control over committee appointments, his strategic use of other institutional powers to advance his preferences, and the anecdotal evidence all suggest that Judicial Conference committees provide another avenue for the chief justice to influence both the legal system and legal policy. 3. The bill, S.744, passed the Senate on June 27, 2013, with minor modifications, despite the judiciary’s concerns. Chief Justice as Executive | 3 0 5 DATA AND METHOD The research presented here employs a newly created database of all judges appointed to serve on Judicial Conference committees from all Article III judges, both active and senior status, serving on the federal bench from June 1, 1986, through December 31, 2012.4 The data span both Rehnquist’s and Robert’s terms as chief justice.5 Dependent Variables The variable of interest, Selected, records whether a judge was selected to serve on any Judicial Conference committee.6 As prior scholarship expresses concern over the im- pact Judicial Conference committees may have on substantive legal policy, Selected Law Committee represents selection to any of the nine committees ð“Law Committees”Þ whose domains involve procedural rules or federal court jurisdictional matters. Outside of the Budget and Spaces and Facilities committees, these nine Law Committees are among the most active before Congress.7 Service for multiple terms, or as a committee chair, increases opportunities to influence committee policy. In particular, when a judge is appointed to a third term and beyond, the chief justice expressly violates his own rule regarding the limits on committee service. Over Two Terms records judges selected to serve on the same committee for more than the two-term maximum articulated by the chief justice. Chair represents a judge’s selection as a committee chairperson. Law Chair represents a judge’s selection as chair for any one of the nine Law Committees. Selections were recorded as binary variables, taking the value of 1 if a judge is selected within a particular observation interval. The unit of analysis is at the individual judge level. For the time-series analyses, a separate observation was recorded for each judge at the end of each 12-month period of service on the federal bench. For example, a judge who serves the full time covered by the data set generates 27 observations, each representing a continuous 12-month interval. This allows for analysis of the chief justice’s selection process, controlling for the pool of 4. Data were acquired from the committee service records kept by the Administrative Office of the US Courts in Washington, DC. 5. Senior judges were included because their status does not preclude committee service. The focus is on aggregate chief justice behavior, so both Courts are considered together. For ancillary regression analyses, the data also were separated by chief justice term. However, observations on the Roberts Court covered approximately 7 years ðSeptember 2005–December 2012Þ, and power issues resulted in some individual chief justice models that could not differentiate from the null. Results from separate chief justice analyses with respect to committee and Law Committee selection are discussed. The remaining power-compromised model results are not reported, although they are available from the author. 6. Service on the Executive Committee was excluded, as its members may be drawn only from the Judicial Conference itself, a constraint not present in other committee selections. 7. The Law Committees are Administration of the Bankruptcy System, Criminal Law, Federal- State Jurisdiction, Rules, and the Rules Advisory Committees on Appellate Practice, Bankruptcy, Civil Procedure, Criminal Procedure, and Evidence. 3 0 6 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 judges available for committee selection during each interval observed. Once a judge was selected to serve on a committee, she was removed from the available selection pool un- til her 3-year term of service was completed or until she left the committee, whichever date was earliest.8 Upon death or retirement, a judge was removed permanently from the selection pool. Party Alignment To explore whether Judicial Conference committee appointments follow some kind of politically based preference, signaling a greater probability that selection operates as a mechanism for control over policy outcomes, each judge was assigned a partisan label ðRepublican or DemocratÞ on the basis of the party of her appointing president.9 Chief Justice Party is a dichotomous variable recorded as 1 if the judge was appointed by a Republican president, and thus is the same party of appointment as the chief justice.10 As a robustness check, more fine-grained measures of ideological preference were based on derivations of Poole and Rosenthal’s first-dimension Nominate Common Space Scores ðPoole and Rosenthal 1997; Poole 1998, 2005Þ.11 Appellate and district court judicial Nominate Common Space Scores were assigned according to the method developed by Giles, Hettinger, and Peppers ð2001Þ, using norms of senatorial courtesy to assign judges a Nominate Common Space Score derived from the scores of their home state senators. The chief justice’s judicial Nominate Common Space Score was calculated by the method described by Epstein et al. ð2007Þ in which preference points for each justice premised on changing voting patterns are transformed into Nominate Common Space Scores.12 These various Nominate Common Space Score calculations are referred to as “Common Space Scores,” throughout the remainder of the article. Biographical and Control Variables With the exception of case decisions and opinions, the federal courts’ impact on policy is filtered through other institutional actors ðCongress, the president, and the bureaucracyÞ. To explore whether the chief justice takes into account preference alignment between 8. In other words, if a judge is selected in 1990 but leaves committee service after 1 year, she is returned to the selection pool in 1991. 9. Party labels, as determined by a judge’s or justice’s appointing president prove to be a remarkably reliable measure of preference across a wide range of studies ðPinello 1999; Sisk and Heise 2005Þ. 10. Both Rehnquist and Roberts were appointed by Republican presidents—Rehnquist by Richard Nixon and then elevated by Ronald Reagan and Roberts by George W. Bush. 11. Ideological divides are structured primarily along the first dimension ðPoole and Rosenthal 1997Þ. All scores are multiplied by 10, so that the scores range from 210 to 10 in order to aid interpretation of the odds ratios coefficients. A 1 unit change in a coefficient corresponds to a 0.10 unit change in the actual Nominate Common Space Score. 12. Databases and documentation for judicial Nominate Common Space Scores are available at http://epstein.wustl.edu/research/JCS.html, May 2010 version. Chief Justice as Executive | 3 0 7 judges and the congressional committees with the most active federal court oversight, the variable House Judiciary is the absolute value of the distance between the individual judge’s Common Space Score and the House Judiciary Committee’s majority member median Common Space Score.13 Contact and experience with state-level elites, designed to capture a judge’s relationships with members of Congress from her state and hence potentially greater access that may benefit the judiciary, is represented by Any State, a dichotomous variable recorded as 1 for judges with prior professional experience at the state level in executive, legislative, judicial, or prosecutorial service. Similar contacts or experience within the federal system, which may represent special access to actors in the executive branch or members of Congress, are reflected in the variable Any Federal, which takes the value of 1 if the judge had prior service in either the federal legislative or executive branch, including agencies and the Department of Justice. Biographical variables were identified for each judge in the database to control for characteristics, unrelated to ideology, which may affect the chief justice’s decision to appoint a particular judge. Biographical data, including prior work experience, seniority, gender, and race, were derived from information reported by the Federal Judicial Center. Recent scholarship on collective decision making and the Court has noted a paucity of variation in background characteristics within the federal judiciary ðincluding race, gender, and occupational experience; Epstein, Knight, and Martin 2003Þ. The follow- ing variables explore whether chief justice committee selection is affected similarly. Ba- sic information on race and gender, standard controls for any population study, were included as dichotomous variables, with Female taking the value of 1 if a judge is female and Nonwhite recorded as 1 if the judge is a minority ðall nonwhite judgesÞ. In addition, controls for occupational backgrounds were included. Business takes the value of 1 if a judge was in the private sector ðexcluding law firms but including in-house legal coun- selÞ. Appellate Clerk, a dichotomous variable, identifies all judges who, after law school, clerked on a federal circuit court of appeals. Academic is coded 1 if the judge was affil- iated before appointment ðeither full-time or in a part-time adjunct capacityÞ with an institution of higher education.14 13. All models were analyzed using the House Judiciary full committee median distance as well as measures for Senate Judiciary distance ðmajority party and full committee medians derived in the same mannerÞ both jointly and separately. As the results were not meaningfully different in any of the alternate specifications, models are reported using House Judiciary distance only. 14. This variable does not differentiate between professors and adjuncts. Engagement with an academic institution can be reflected in a wide range of interactions, and the article operates from the assumption that these interactions may reflect a qualitative difference that affects selection odds between judges affiliated and not affiliated with the academy. Alternate regressions not reported included the separate dichotomous variables “Adjunct” and “Professor.” Neither variable rose to significance in any of the models, with the exception of Adjunct in the Chair Law ðselection 82% less likely, p 5 .03Þ and the Over Two Terms models ðselection 1.75 times more likely, p 5 .01Þ. The general lack of significance is likely due to the small number of observations for each variable. Professors in the selection pool each year ranged from 109 to 176, and the number of adjuncts ranged from 74 to 160. 3 0 8 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 An individual’s experience within the judicial system may also affect committee service, with the assumption that appointment decisions should favor judges who are familiar with the federal judiciary’s administrative operations. Judicial experience on the bench was calculated from a judge’s total federal judicial service in years at the end of each interval.15 To address collinearity with variables for seniority status ðdiscussed belowÞ and the likely nonlinear effect of experience due to its correlation with age, ex- perience on the bench was converted into three dichotomous variables. Low Experience is coded 1 if the judge falls in the bottom quartile of the judges available for selection in an interval. High Experience is coded 1 if a judge is within the top quartile of years on the bench. Middle Experience ð25%–75%Þ is the reference category. Stature within the federal judiciary may also matter to appointments. As the circuit courts sit between the federal district courts and Supreme Court in terms of workflow and importance, it may be easier for an appellate judge to differentiate herself and come to the attention of the chief justice, hence increasing selection odds. Whether a judge sits on the federal courts of appeals is represented by the dichotomous variable Appel- late Judge. Judges who have elected senior status ðsemiretirementÞ may have additional time for committee service or, due to age, may be less likely to be appointed. To control for these possibilities, Senior Status takes the value 1 in any given year for all judges des- ignated as occupying senior status. To account for the default rule that a judge may serve only a two-term maximum, the regressions control for two-term service with the vari- able Served Twice, which takes the value of 1 after the judge completes a second term of committee service. Descriptive Statistics Of the 2,015 eligible judges, 842 ð42%Þ served on one or more of the identified Judi- cial Conference committees, and 297 ð15%Þ served on one of the nine Law Commit- tees. Multiple service terms are the norm, with 166 ð20%Þ of the 842 selected judges serving only one term,16 and 676 ð80%Þ serving at least two terms. However, service beyond the two-term limit was less common, with only 310 ð37%Þ judges serving three or more terms, a total that represents only 15% of the eligible judicial pool. Multiple committee service is observed in 225 ð27%Þ of the judges serving. Most of this service is not consecutive, with 138 ð61%Þ of second committee service taking place an average of 6 years after the completion of initial service. Looking at only consecutive committee service ðcompletion of a term on one committee and then immediate ap- pointment to a second committeeÞ, we observe that 13 of the 24 committees studied saw roughly the same number of judges switch into a particular committee as switch out of that committee.17 Of the remaining 11 committees, differentials between judges 15. For elevated judges, service begins at the first appointment to any federal bench. 16. This number is likely smaller; 66 of these judges cannot be observed past their first term of service, as they were appointed in 2010 or later. 17. The Executive Committee is excluded due to its limitations on selection and service. Chief Justice as Executive | 3 0 9 switching into and out of committees may be suggestive of between-committee service variability, but the numbers are simply too small to provide reliable trends.18 As an initial matter, it appears that party affiliation affects committee selection and composition. For each year 1986–2012, figure 1 compares the percentage of Demo- cratic judge committee appointments, Republican judge committee appointments, and the overall percentage of Republican judges in the available judicial pool. In 18 of the 27 years studied, the percentage of Republican judges appointed to committees exceeds ðoften by a considerable marginÞ both the percentage of Democratic commit- tee appointments as well as the overall percentage of Republicans available for commit- tee service. For example, in 1991, 83% of committee appointments went to Republican judges, although Republicans comprised 63% of the available judiciary. In 2012, appointments were 70% Republican, drawn from a 54% Republican judicial pool. In only three years, 2004, 2006, and 2007, do Democratic appointments exceed Repub- lican appointments. The apparent dominance of Republican judges also emerges as the analysis moves from yearly appointment patterns to the composition of key influential positions within the committee system. Figure 2 presents the percentage of Republican judges within the full judiciary pool ð54%Þ, selected to any committee ð61%Þ, selected to a Law Com- mittee ð66%Þ, selected as committee chairs ð67%Þ, and serving beyond the two-term maximum prescribed by the chief justice ð64%Þ. Some additional judicial characteristics warrant note. Stature, and perhaps familiar- ity to the chief justice, as represented by circuit court judges, also appears salient. Ap- pellate judges are represented in proportionately higher numbers in both committee and chair service than in the general Article III population ðfig. 2Þ. Appellate judges comprise 21% of the overall judicial pool but make up 27% of the selected judges, 30% of the Law Committee selections, 31% of those serving over two terms, and 36% of the committee chair selections.19 Figure 2 also shows that judges from racial minorities appear to be underrepresented in all facets of committee service. Nonwhite judges rep- resent 15% of the general population but only 12% of committee member selections and 10% of Law Committee member selections. Of those selected to serve over two terms, 9% are nonwhite, and of committee chairs, 5% are minorities. Empirical Methodology To further examine the effect of partisan alignment on the odds of committee selection, the data were analyzed using cross-sectional time-series maximum likelihood models, 18. For example, six judges switched out of and no judges switched into the Committee on Court Administration and Case Management. Conversely, nine judges switched into the Committee on Information Technology, and only one judge switched out. 19. These numbers include 57 judges who appear in both appellate and district court categories during the time span of the study, due to their elevation from the district to the appellate court bench. The proportion treats these overlapping judges as serving at the appellate level. 3 1 0 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 the appropriate method for longitudinal analyses of dichotomous dependent variables derived from data that cover a changing population observed annually. In particular, because fewer judges receive committee appointments than judges who are not ap- pointed in any given year ðselection percentages in the majority of years studied range between 2% and 9%Þ, the analyses use random-effects complementary log-log ðcloglogÞ models, designed to address estimation problems caused by the left skew ðdue to an overabundance of zeros, or noneventsÞ.20 A series of models analyze the individual judge-level characteristics that affect a judge’s odds of being selected to any committee, a Law Committee, a committee chair, a Law Committee chair, or appointment beyond the stated two-term maximum.21 Figure 1. Judicial conference committee selections ðby party affiliationÞ compared to full Article III party composition, 1986–2012. R 5 Republican; D 5 Democrat. 20. Results are reported in exponentiated coefficients. Values above 1 indicate an increase in the odds of selection; values below 1, a decrease. For example, a coefficient of 1.5 represents a 50% increase in the odds of selection. A coefficient of 0.50 represents a 50% decrease in selection odds. 21. Additional analyses, not reported here, look at the Rehnquist and Roberts appointments separately with respect to Selected and Selected Law Committee. The main effect with respect to party alignment remains the same for these separate models and is discussed further in the results section. Separate analyses with respect to Chair, Chair Law, and Over Two Terms were unstable due to the rarity of such selections when the data are divided. Out of 28,275 observations, the data contain 240 Chair appointments ðand 153 individuals serving; 189 by Rehnquist and 51 by RobertsÞ and 82 Chair Law appointments ð68 by Rehnquist and 14 by RobertsÞ, and of the 547 times an appointment was Over Two Terms, 307 were appointed by Rehnquist and 240 by Roberts. Chief Justice as Executive | 3 1 1 The regression equation is as follows: Outcomeijt 5 b0a 1 b1Chief JusticePartyit 1 b2Demographicit 1 b3Statusit 1 b4Backgroundit 1 b5PoliticalAdvantageit 1 b6TimeBenchit 1 b7ServedTwiceit 1 εit; where i indexes the individual judge and t indexes the year of selection. Outcome is the variable of interest. In the Selected model, outcome equals 1 when a judge is selected to any committee. In the Selected Law model, Outcome equals 1 when a judge is selected to a Law Committee—any of the nine committees whose jurisdiction encompasses ac- cess to the federal judiciary or changes to legal rules ðeither procedural or substantiveÞ.22 Multiple service patterns are examined in the Over Two Terms model, where Out- come equals 1 if a judge is selected to a committee and that selection represents the third ðor greaterÞ term of service. To examine service as a committee chair, in Chair and Chair Law models Outcome equals 1 if a judge is selected to chair a committee or Law Committee. Finally, controls are included for demographic information, judicial status, background experience, potential political advantage, time on the bench, and, given the two-term service rule, a control for whether a judge has already served the maximum number of terms ðServed TwiceÞ.23 The main coefficient of interest b1 expresses the Figure 2. Descriptive statistics: Characteristics of all judges, selected judges, law committee judges, over two terms judges, and chairs, 1986–2012. 22. Administration of the Bankruptcy System, Criminal Law, Federal-State Jurisdiction, Rules, and the Rules Advisory Committees on Appellate Practice, Bankruptcy, Civil Procedure, Criminal Procedure, and Evidence. 23. Served Twice is not used in the Over Two Terms model because of lack of variance. 3 1 2 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 increase or decrease in the Outcome odds if a judge is in the same party as the chief justice. All regressions also were conducted by replacing party affiliation ðChief Justice PartyÞ with the Common Space Score distance ðin absolute termsÞ between a judge and the chief justice. The substantive results do not vary from those reported below, with decreased judge–chief justice distance evidencing the same effect on selection as being a Republican appointee ðand therefore aligned with the chief justiceÞ.24 This is not surprising on several levels. First, party of appointment correlates strongly with ju- dicial Common Space Scores. Second, judicial Common Space Scores for appellate and district judges are not derived independently from judicial case votes but are as- signed on the basis of home state senators’ Common Space Scores and as such may represent no more granular a measure than party of appointment. Finally, the chief justice appoints, on average, 76 judges each year to various Judicial Conference com- mittees. It may well be the case that from an appointer’s perspective, party is a reliable and easily used heuristic. RESULTS AND DISCUSSION The regression results are consistent with the descriptive statistics and offer robust sup- port for the proposition that party alignment with the chief justice matters for selection to Judicial Conference committees and positions of influence within that system. Being a Republican appointee, and the same party as the chief justice, significantly increases appointment odds in every model ðtable 1Þ. Odds of being selected to any committee increase by about 73% for Republican judges, and the odds of selection to a Law Com- mittee more than double. Republicans judges are 58% more likely to be committee chairs and almost three times as likely to chair a Law Committee. Finally, Republican appointees are 74% more likely to remain on committees beyond the two-term max- imum, as compared to Democratic appointees. Other Variables of Interest In addition to the salience of party, a number of the other variables exhibit a consis- tent relationship to a judge’s appointment odds and are worthy of note. Figure 3 pre- sents these results graphically, with the variables on the X-axis and odds ratios on the Y-axis. The horizontal dashes indicate the odds-ratio coefficient for a particular vari- able, and the vertical lines denote the 95% confidence interval. An odds ratio of 1 rep- resents the null, and this grid line is highlighted. This figure demonstrates a fairly uniform pattern across the five models, with roughly the same groups of variables in- creasing and decreasing the likelihood of appointment. 24. Regression results are not reported but available on request from the author. Chief Justice as Executive | 3 1 3 Violation of the Two-Term Service Rule As was expected, after a judge serves her two-term maximum ðServed TwiceÞ, she is significantly less likely to be appointed to the same or another committee. Accordingly, Served Twice is below the null grid line in both the Selection and Law Selection models, representing a reduction in selection odds of roughly 80% ðtable 1; figs. 3A and 3BÞ. However, the model for multiple-year service ðOver Two Terms; table 1; fig. 3CÞ in- Table 1. Maximum Likelihood Models for Judicial Conference Appointments to a Committee, Law Committee, Chair, Law Chair, or over Two-Term Maximum, 1986–2012 Selected Selected Law Over Two Terms Chair Chair Law Chief justice party 1.73** 2.48** 1.74** 1.58* 2.71** ð.20Þ ð.54Þ ð.29Þ ð.34Þ ð1.04Þ House judiciary 1.00 1.01 .99 1.01 .97 ð.01Þ ð.01Þ ð.01Þ ð.02Þ ð.04Þ Female 1.61** 1.43 2.01** 1.50 1.15 ð.24Þ ð.38Þ ð.42Þ ð.37Þ ð.50Þ Nonwhite .61** .48* .64 .32** .30 ð.10Þ ð.15Þ ð.16Þ ð.13Þ ð.22Þ Senior status .39** .25** .58** .34** .29** ð.04Þ ð.05Þ ð.08Þ ð.07Þ ð.11Þ Appellate judge 1.83** 1.98** 1.99** 1.81** 2.46** ð.21Þ ð.41Þ ð.33Þ ð.37Þ ð.82Þ Business .63* .83 .73 .43 .29 ð.13Þ ð.31Þ ð.22Þ ð.20Þ ð.25Þ Academic 1.50** 2.02** 1.49* .92 .98 ð.19Þ ð.46Þ ð.27Þ ð.21Þ ð.37Þ Appellate clerk 1.93** 3.30** 2.44** 1.74 2.65 ð.44Þ ð1.22Þ ð.75Þ ð.60Þ ð1.41Þ Any state .78* .87 .61** .56** .71 ð.09Þ ð.18Þ ð.10Þ ð.11Þ ð.23Þ Any federal 1.25* 1.01 1.20 .98 .69 ð.14Þ ð.21Þ ð.19Þ ð.20Þ ð.24Þ Served twice .18** .14** . . . 4.13** 2.36** ð.02Þ ð.02Þ ð.74Þ ð.68Þ Low experience .20** .20** .05** .30** .15** ð.02Þ ð.03Þ ð.01Þ ð.08Þ ð.08Þ High experience .41** .28** .73* .28** .14** ð.05Þ ð.07Þ ð.11Þ ð.08Þ ð.08Þ Constant .06** .003** .01** .003** .0005** ð.01Þ ð.001Þ ð.001Þ ð.001Þ ð.0003Þ Wald x2 954.40** 348.20** 254.49** 235.84** 85.73** x2 925.01** 630.37** 404.83** 137.76** 48.23** Source.—Judicial Conference Committee data set, 2012. Note.—Binomial maximum likelihood models fitted with complementary log log function in Stata12. Exponen- tiated coefficients. Served twice is not included in the Over Two Terms model due to lack of variation. N 5 28,275. * p < .05. ** p < .01. 3 1 4 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 dicates that Republican judges are far more likely ð74%Þ than their Democratic counter- parts to serve beyond the two-term maximum. And when it comes to the selection of chairs, either to any committee or to a Law Committee, having served twice increases the odds of appointment by two- to fourfold ðChair, Chair Law; table 1; figs. 3D and 3EÞ. This suggests that the chief justice selects a group of judges for multiyear service, in con- travention to the two-term limit, and then favors them for selection to positions of con- trol within the committees. The question remains whether being a Republican appointee makes it more likely that a particular judge will receive multiple term appointments and will be more likely to serve as a committee chair. To explore this question further, an additional regression was conducted with the dependent variable coded 1 for all judges who already served two terms and in any subsequent year were appointed as committee chairs. Again, partisan alignment with the chief justice matters, almost doubling the odds that a judge will serve multiple terms and act as a committee chair ðtable 2Þ. Positive Impact on Selection Appellate judges, like Republican judges, have significantly higher selection odds. As compared to their district court counterparts, judges on the courts of appeals are 83% more likely to be selected to any committee and 81% more likely to serve as a committee chair, are roughly twice as likely to be appointed to a Law Committee or multiple-year service, and are over two times more likely to chair a Law Committee. Republican ap- pointment and appellate court status are the only two variables significantly positive across all five models. Academics and former appellate clerks also are more likely to serve on committees and to serve beyond the two-term maximum, lending some credence to assertions that the lack of occupational diversity on the bench extends to committee service. However, this increase in odds does not uniformly apply to committee leader- ship positions ðtable 1; figs. 3D and 3EÞ. Negative Impact on Selection Control variables for experience all behaved as expected. The chief justice is more likely to appoint judges from the midrange of experience on the bench. Low Experience and High Experience reduced the odds of appointment anywhere from roughly 30% to 95%, depending on the model, and were consistently negative across all five models. Senior status also consistently and significantly reduced appointment odds by over half in most models. Being a racial minority reduces a judge’s odds of committee service in three of the five models.25 Minority judges are 39% less likely to be selected to any committee, 52% less 25. The exceptions are the multiple term ðOver Two TermsÞ and Chair Law models, where Nonwhite did not rise to the level of significance, although the coefficients are below 1. Chief Justice as Executive | 3 1 5 likely to serve on Law Committees, and 68% less likely to act as committee chairs. It is possible that this is a function of the relative paucity in terms of both raw numbers and time on the bench for minority judges during many of the years studied, which reflects the variation in minority appointments during different presidential terms.26 It was not until 1997 that the percentage of minority judges in the High Experience category con- Figure 3. A, Selected to any committee; B, selected to a Law Committee; C, selected over two terms. 26. For example, newly appointed minority judges declined in 2000–2008. 3 1 6 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 sistently moved out of the single digits. Given this paucity, time on the bench and mi- nority status may interact in ways that dampen appointment ðor willingness to serveÞ. For example, minority judges at various stages of their judicial careers may find public and other external ðnonjudicialÞ demands on their time particularly acute, and these de- mands may supplant time available for committee service. All regressions were rerun using interaction terms to determine whether the odds of committee service differed for minority judges with differing levels of experience on the bench ðcoded 1 if a judge was both a minority and High, Middle, or Low Experience, Figure 3 ðContinuedÞ. D, Selected chair; E, selected law chair Chief Justice as Executive | 3 1 7 respectivelyÞ.27 The results show that, while race remains salient as an independent ef- fect, and experience also remains independently significant, more experienced minority judges are more likely to serve on committees and to serve over two terms in contraven- tion to the overall impact of long-term experience, which diminishes service odds for the selection pool ðtable 3Þ.28 While caution should be used due to analytic power issues associated with such a small number of positive observations, the ancillary regressions do support the theory that race and time on the bench matter for committee service in ways that differ from the nonminority population. Political Connections While the chief justice appears to take party into account when selecting committee members and chairs, there was mixed and contrary evidence that a judge’s possible po- litical connections make committee selection more likely. Prior experience in federal government ðAny FederalÞ increased selection odds by about 25% for any committee 27. The reference category was Middle Experience, with the exception of the Middle Experience model, where the reference category was Low Experience. 28. Nonwhite � Low Experience did not rise to significance. Nonwhite � Middle Experience judges were 30% less likely to serve than their Low Experience counterparts. The small number of observations for minority judges in the Selected Law, Chair, and Chair Law models precluded analysis. Table 2. Maximum Likelihood Model for Judicial Conference Appointment as Chair after Two-Term Maximum Service, 1986–2012 Odds Ratio SE Chief justice party 1.84* .54 House judiciary 1.02 .03 Female 2.35* .81 Nonwhite .29* .16 Senior status .42** .11 Appellate judge 2.28** .63 Business .45 .27 Academic 1.07 .33 Appellate clerk 2.83* 1.34 Any state .40** .11 Any federal 1.06 .30 Low experience .04** .02 High experience .49* .15 Constant .001** .0005 Wald x2 114.68** x2 178.56** Source.—Judicial Conference Committee data set, 2012. Note.—Odds ratios. Binomial maximum likelihood model fitted with com- plementary log log function in Stata12. Exponentiated coefficients. N 5 28,275. * p < .05. ** p < .01. 3 1 8 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 service but was not significant in the other four models. Prior state government ser- vice ðAny StateÞ decreased selection odds in three of the five models by between 22% and 44%. Chief justice committee selections show little preference for committee mem- bers with political ideologies similar to the key congressional committee. The Common Space Score distance between a judge and the House Judiciary Committee majority median ðHouse JudiciaryÞ failed to achieve significance in any model, with coefficients functionally equivalent to the null of one. Data Limitations The following issues arise regarding sample representativeness. Committee service is a function to some degree of judge self-selection via recommendations and judicial ex- pressions of interest funneled through the Administrative Office ðFish 1973; Adminis- trative Office of the US Courts 2014Þ. How strongly this affects the final committee composition is unstudied, as the Administrative Office data only contain committee ser- vice records, not requests to serve. Of the 2,015 judges observed, close to half engage in active committee service during the time periods studied. This number, however, is censored, as the study ends in 2012 and does not capture the full judicial life span of many judges present in the current data who may serve on committees after 2012. Whether self-selection is dispositive can be examined inferentially by looking at the number and tenure of judicial committee service ða substantial repeat cadre would tend Table 3. Nonwhite Interacted with High Experience: Maximum Likelihood Models for Judicial Conference Appointments to a Committee or over Two-Term Maximum, 1986–2012 Selected Over Two Terms Nonwhite � high experience 4.87** 5.65** ð1.50Þ ð2.45Þ Chief justice party 1.73** 1.74** ð.20Þ ð.29Þ Nonwhite .55** .48** ð.09Þ ð.13Þ High experience .35** .63** ð.04Þ ð.10Þ Model covariates Yes Yes Constant .06** .01** ð.01Þ ð.001Þ Wald x2 958.52** 266.26** x2 930.27** 404.30** Source.—Judicial Conference Committee data set, 2012. Note.—Odds ratios. Binomial maximum likelihood model fitted with complementary log log function in Stata12. Exponentiated coefficients. Interaction nonwhite � high experi- ence not included in Selected Law, Chair, and Chair Law models due to small numbers. N 5 28,275. ** p < .01. Chief Justice as Executive | 3 1 9 to support self-selection theoriesÞ. As an initial matter, the impact of any self-selection is moderated by existing term limits set by the chief justice that restrict committee service to two 3-year terms: 42% of the judicial pool engages in Judicial Conference committee service, yet only 15% of the judges observed serve beyond a second term. In addition, if judges self-select, there is no theoretical reason to expect Republican judges to volunteer for committee service in any greater or lesser degree than Democratic appointees ðunless they do so in response to an understood norm about service and party alignmentÞ. The data show a strong relationship between party and committee service. These findings suggest, at the very least, that if some form of self-selection is in effect, it operates in a manner that aligns judges and the chief justice along apparent partisan lines, an align- ment that is consistent with assertions that selection is designed to forward the chief justice’s policy preferences. Republican judges may volunteer to serve on committees more often than Democratic judges, but that choice could be due to the understanding that being Republican makes it more likely that the chief justice will select a judge for committee service. In any event, the end result is committee composition in which party alignment with the chief justice matters. In addition, the data do not include non–Article III members, the bulk of whom are private citizens. This is due to the practical impossibility of generating a full selection population of potential non–Article III committee members ðwhich would have to in- clude all eligible private citizensÞ and collecting the relevant demographic, political, and biographical information addressed in the current study. While there is no theoretical reason to believe that a chief justice would pursue a separate appointment strategy for non–Article III committee members, basic information about committee service pat- terns for this group allay some concern. Across all committees, Article III judges out- numbered private citizens, magistrates, or bankruptcy judges by an average of 56 per- centage points. In 14 of the 24 committees studied,29 Article III judges comprise 80% or more of the membership. Of the remaining 10 committees, five have Article III membership between 60% and 79%. Of the remaining five committees, three are be- tween 55% and 57% Article III judges ðadvisory committees on appellate rules, civil procedure, and criminal rulesÞ, and two ðbankruptcy rules and evidenceÞ were 43% and 41%, respectively. Nonetheless, as a robustness check, the Selected model was run us- ing two separate selection populations: ðaÞ committee selections where 80% or more came from the Article III judiciary ð“80% Group”Þ and ðbÞ the remaining nine com- mittee selections ð“Under 80% Group”Þ. Using either the 80% Group or the Under 80% Group, the results did not differ in any material respect from those presented here. Finally, because the data only include 7 years of Chief Justice Robert’s appointments, and because appointment to a Judicial Conference committee is a comparatively rare event, separate analyses of appointments by chief justice are reliable only at the broadest level: committee selection. The dynamic described in the main results, that being of the 29. The Executive Committee is excluded as its selection mechanism differs from the other committees: only existing Judicial Conference members are eligible for Executive Committee service. 3 2 0 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 same party as the chief justice enhances the overall probability of committee selection or selection to a Law Committee, remains when the data are divided by chief justice. However, more granular analyses separated by chief justice, including appointments over two terms, as chair, or as law chair are not reliable, particularly for Roberts, given the rarity of those actions and the reduction in observations when the data are split. Separate, more detailed analyses of each chief justice’s appointment behavior will have to await further data. CONCLUSION Partisan alignment between a judge and the chief justice is a significant factor in the chief justice’s Judicial Conference committee appointments. Regardless of the type of committee service, or its longevity, Republican judges have a distinct appointment ad- vantage over their Democratic counterparts. These findings are consistent with studies that find the chief justice uses his institutional powers ðopinion assignment, conference control, docket order, specialized court appointmentsÞ to influence case ðread policyÞ outcomes. The results support both the anecdotal evidence about Judicial Conference committees as well as early studies of the Judicial Conference Executive Committee that found ideological appointment behavior by the chief justice. Given the Judicial Con- ference committees’ role in crafting policy on behalf of the federal courts, these results suggest that the chief justice makes his selections with an eye toward populating the committees, and their leadership, with like-minded judges who in turn craft policies that comport with the chief justice’s preferences. The effect of party alignment on multiple-term service and chair appointments is particularly instructive. Positions of authority in a committee and longevity of service provide added opportunities to influence policy outcomes. Multiple-term appointments violate the chief justice’s rule on committee service limits. Yet the chief justice does ab- rogate this rule, and when he does so, it is more likely to be in favor of a Republican judge than a Democratic one. Appointments to positions of authority within the com- mittees follow the same pattern, with significantly higher odds of chairpersonship ad- hering to Republican judges. It is possible that partisan appointment behavior could serve purposes other than just influencing committee policy. The use of political party as a method of overcoming collective action problems is well studied in the context of congressional committees. A Republican chief justice could be rewarding Republican judges with committee assign- ments in order to promote, advance, and generate fidelity among these judges, with an eye toward some sort of internal party cohesion in the judiciary. The purpose of this unity building may be to reinforce the chief justice’s control over the federal judiciary, by appointing like-minded judges who support, or are incentivized to follow, the chief justice’s organizational goals ðas well as policy preferencesÞ. This is consistent with the history of the chief justice as an administrative entrepreneur, beginning with the im- plementation of the committee structure by William Howard Taft in the 1920s, ev- idencing a pattern of consolidated and centralized organizational control and expanded Chief Justice as Executive | 3 2 1 administrative autonomy for the federal courts ðFish 1984; Carpenter 2001; Crowe 2007Þ. The strong relationship between status as an appellate judge and committee service at all levels suggests that, in addition to populating committees ðand committee power structuresÞ with like-minded judges, the chief justice also may draw most from familiar judges. The appellate bench is not only smaller than that of the district court but also the bench through which most federal cases reach the Supreme Court ð28 U.S.C. §1254Þ. Three hundred fifty-seven appellate judges appeared in the judicial pool during the period studied, compared to 1,658 district court judges. In addition to appellate judges being fewer in number, the appeals process itself, with the circuit courts interposed be- tween the district courts and Supreme Court, may result in an increased likelihood that appellate judges are known to the chief justice. The role of familiarity is supported in- ferentially by the significance of judicial time on the bench, a variable designed to cap- ture appointments that favor some level of experience with the federal court system. New judges ðin the lower 25% of judicial experienceÞ are significantly less likely to serve in any committee capacity. In addition to less experience, these judges have had less time to distinguish themselves and become known within the judiciary ðand to the chief jus- ticeÞ. While judges with long careers on the bench ðin the top 25%Þ also are signifi- cantly less likely to be appointed as are senior judges, it may be that selection of this group is suppressed by service willingness or assessments based on age. A significant reduction in selection odds exists for minority judges. Interaction effects between race and time on the bench are suggestive. However, the nature and parameters of this effect are unclear, as is whether the salience of race persists across all committee types. This issue is worth additional consideration. As well, further study could examine whether appointment criteria, including experience, ideology, and self-selection, vary on a committee-by-committee basis. For example, over 90% of the subject pool engaged in prior legal practice. The contours of this professional experience, including practice-type categories ðe.g., litigation, corporate finance, employee benefitsÞ, and their effect on com- mittee service warrant study. Finally, the available data, while covering 27 years, only examine the selection be- havior of two chief justices. This is in part due to the nature of the records available from the Administrative Office. Additional empirical analyses of other chief justices’ com- mittee selection behavior are of interest, given this study’s results. As an initial matter, however, it is important that the office of the chief justice clearly affords the power and opportunity to use specific ideological or partisan criteria when appointing Judicial Conference committees’ members. REFERENCES Administrative Office of the US Courts. 1994. “Judicial Conference Adopts Principles for Health Care Reform.” Third Branch 26 ð8Þ: 1–2. 3 2 2 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 ———. 2005. Annual Report of the Director. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov/uscourts/FederalCourts/AnnualReport/2005.pdf. ———. 2013. Annual Report of the Director. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts /AdministrativeOffice/DirectorAnnualReport/annual-report-2013.aspx. ———. 2014. “Judicial Conference of the United States.” Administrative Office of the US Courts, Washington, DC. http://www.uscourts.gov/FederalCourts/JudicialConference.aspx. Bell, Robert Thomas. 2013. September 17 Letter to Patrick J. Leahy. Copy on file with the Senate Judiciary Committee. Administrative Office of the US Courts, Washington, DC. http://news .uscourts.gov/sites/default/files/Judge-Bell-Chairman-Leahy-mandatory-minimums.pdf. Carpenter, Daniel P. 2001. The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928. Princeton, NJ: Princeton University Press. Committee on the Judiciary. 2013. Senate Report to Accompany S. 744 Border Security, Economic Op- portunity, and Immigration Modernization Act. S. Rep. No. 113-040. Washington, DC: Govern- ment Printing Office. http://www.gpo.gov/fdsys/pkg/CRPT-113srpt40/pdf/CRPT-113srpt40 .pdf. Cross, Frank B., and Stefanie Lindquist. 2006. “Doctrinal and Strategic Influences of the Chief Justice: The Decisional Significance of the Chief Justice.” University of Pennsylvania Law Review 154:1665–1707. Crowe, Justin. 2007. “The Forging of Judicial Autonomy: Political Entrepreneurship and the Re- forms of William Howard Taft.” Journal of Politics 69 ð1Þ: 73–87. de Figueiredo, John M., and Emerson H. Tiller. 1996. “Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary.” Journal of Law and Economics 39:435–62. Epstein, Lee, Jack Knight, and Andrew D. Martin. 2003. “The Norm of Prior Judicial Experiences and Its Consequences for Career Diversity on the U.S. Supreme Court.” California Law Review 91 ð4Þ: 903–65. Epstein, Lee, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal. 2007. “Ideological Drift among Supreme Court Justices: Who, When, and How Important?” Northwestern University Law Review 101:127–31. Fish, Peter G. 1973. The Politics of Federal Judicial Administration. Princeton, NJ: Princeton Uni- versity Press. ———. 1984. The Office of the Chief Justice. Charlottesville, VA: White Burkett Miller Center of Public Affairs. George, Tracey E., and Margaret S. Williams. 2013. “Who Will Manage Complex Civil Litigation? The Decision to Transfer and Consolidate Multidistrict Litigation.” Journal of Empirical Legal Studies 10 ð3Þ: 424–61. Geyh, Charles G. 1996. “Paradise Lost, Paradigm Found: Redefining the Judiciary’s Imperiled Role in Congress.” New York University Law Review 71:1165–1250. ———. 2006. When Courts and Congress Collide: The Struggle for Control of America’s Judicial System. Ann Arbor: University of Michigan Press. Giles, Michael W., Virginia A. Hettinger, and Todd Peppers. 2001. “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas.” Political Research Quarterly 54 ð3Þ: 623– 41. Judicial Conference of the US Courts. 1937. Judicial Conference Report of 1937. Washington, DC: Administrative Office of the US Courts. ———. 1948. Judicial Conference Report of 1948. Washington, DC: Administrative Office of the US Courts. Chief Justice as Executive | 3 2 3 ———. 1987. Judicial Conference Report of 1987. Washington, DC: Administrative Office of the US Courts. ———. 1995. Judicial Conference Report of 1995. Washington, DC: Administrative Office of the US Courts. ———. 2007a. Judicial Conference Report of March 13, 2007. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov. ———. 2007b. Judicial Conference Report of September 18, 2007. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov. ———. 2008a. Judicial Conference Report of March 11, 2008. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov. ———. 2008b. Judicial Conference Report of September 16, 2008. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov. ———. 2011. Judicial Conference Report of March 15, 2011. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov. ———. 2012. Judicial Conference Report of September 11, 2012. Washington, DC: Administrative Office of the US Courts. http://www.uscourts.gov. Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard University Press. Nihan, Charles W. 1995. “A Study in Contrasts: The Ability of the Federal Judiciary to Change Its Adjudicative and Administrative Structures.” American University Law Review 44 (5): 1693– 1717. Nixon, David C. 2003. “Policy-Making by a Different Means: The Chief Justice’s Attempts to Shape Policy through the Judicial Conference of the United States.” Rationality and Society 15 ð3Þ: 345–60. Olson, Walter K. 1991. The Litigation Explosion: What Happened When America Unleashed the Lawsuit. New York: Truman Talley Books, Dutton. Padelford, Norman J. 1932. “The Federal Judicial Conference.” American Political Science Review 26 ð3Þ: 482–85. Pfander, James E. 2013. “The Chief Justice, the Appointment of Inferior Officers, and the ‘Court of Law’ Requirement.” Northwestern University Law Review 107 ð3Þ: 1125–80. Pinello, Daniel R. 1999. “Linking Party to Judicial Ideology in American Courts: A Meta-analysis.” Justice System Journal 20:219. Poole, Keith T. 1998. “Estimating a Basic Space from a Set of Issue Scales.” American Journal of Political Science 42:954–93. ———. 2005. “Common Space Scores, Congresses 75–108 ðMarch 9, 2005Þ.” Department of Political Science, University of Georgia. http://voteview.com/basic.htm. Poole, Keith T., and Howard Rosenthal. 1997. Congress: A Political-Economic History of Roll Call Voting. New York: Oxford University Press. Posner, Richard A. 1996. The Federal Courts: Challenge and Reform. Cambridge, MA: Harvard University Press. Resnik, Judith. 1998. “The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations.” Georgetown Law Journal 86:2589–2636. ———. 2000. “The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence against Women Act.” Southern California Law Review 74:269–75. ———. 2010. “Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality.” Georgetown Journal of Gender and the Law 11:557–69. 3 2 4 | J O U R N A L O F L A W A N D C O U R T S | FA L L 2 0 1 4 Ruger, Theodore W. 2004. “The Judicial Appointment Power of the Chief Justice.” University of Pennsylvania Journal of Constitutional Law 7:341–427. ———. 2006. “The Chief Justice’s Special Authority and the Norms of Judicial Power.” Univer- sity of Pennsylvania Law Review 154:1551–74. ———. 2007. “Chief Justice Rehnquist’s Appointments to the FISA Court: An Empirical Per- spective.” Northwestern University Law Review 101 ð1Þ: 239–58. Sisk, Gregory C., and Michael Heise. 2005. “Judges and Ideology: Public and Academic Debates about Statistical Measures.” Northwestern University Law Review 99 ð2Þ: 743–804. Stancil, Paul J. 2010. “Close Enough for Government Work: The Committee Rulemaking Game.” Virginia Law Review 96 ð1Þ: 69–133. Tacha, Deaell R. 1995. “Judges and Legislators: Enhancing the Relationship.” American University Law Review 44:1537–59. Wheeler, Russell. 2003. A New Judge’s Introduction to Federal Judicial Administration. Washington, DC: Federal Judicial Center. Chief Justice as Executive | 3 2 5 Cornell University Law School From the SelectedWorks of Dawn Chutkow 2014 The Chief Justice as Executive: Judicial Conference Committee Appointments 201250 301..326 
work_grjqtvrxybd55g74226l7hwqgm	----	Social welfare, justice and distribution Soc Choice Welf (2017) 49:415–421 DOI 10.1007/s00355-017-1088-y EDITORIAL Social welfare, justice and distribution An introduction to the special issue in honor of John Roemer Juan D. Moreno-Ternero1 · Roberto Veneziani2 Published online: 27 September 2017 © Springer-Verlag GmbH Germany 2017 1 Introduction It is our great pleasure to present this special issue in honor of John Roemer. The contributions collected here are meant as a homage to him and aim to reflect his many contributions to normative economics, political economy, distributive justice, and political philosophy over the last 4 decades. John Roemer received his A.B., summa cum laude, in Mathematics from Harvard College in 1966 and his Ph.D. degree in Economics from the University of California, Berkeley in 1974.1 His first appointment was at the University of California, Davis, whereheremainedfor26years(asanAssistantProfessorfrom1974to1978,Associate Professor from 1978 to 1981 and Professor from 1981 to 2000). In 2000, he joined Yale University where he is currently the Elizabeth S. and A. Varick Stout Professor of Political Science and Economics. He has served on the board of editors of several journals, including “Social Choice and Welfare” since 1990. He has been President of the Society for Social Choice and Welfare from 2010 to 2012. He is a Fellow of the Econometric Society and of the British Academy and has held a number of visiting appointments in various universities across the world. 1 He was suspended from Berkeley in 1968, due to participation and arrest in a demonstration and an occupation, lost his draft deferment, and taught mathematics in San Francisco secondary schools from 1969 to 1974, before being readmitted to Berkeley. B Juan D. Moreno-Ternero jdmoreno@upo.es Roberto Veneziani r.veneziani@qmul.ac.uk 1 Department of Economics, Universidad Pablo de Olavide, Sevilla, Spain 2 School of Economics and Finance, Queen Mary University of London, London, UK 123 http://crossmark.crossref.org/dialog/?doi=10.1007/s00355-017-1088-y&domain=pdf 416 J. D. Moreno-Ternero, R. Veneziani In the summer of 2015, a 2-day conference took place in London to celebrate John’s 70th birthday, and his intellectual contributions, and many of the papers presented at the conference are collected here. John Roemer’s research spans from Marxian Economic Theory to Climate Change andEquity,encompassingDistributiveJusticeandPoliticalPhilosophy,PoliticalEcon- omy, Public Ownership and Market Socialism, as well as Pure Game Theory, Social Choice and International Economics. The sixteen papers collected in this special issue provide a good illustration of the breadth and depth of John’s contributions. 2 Marxian Economic Theory John’s early years were mostly devoted to Marxian Economic Theory (e.g. Roemer 1977, 1980). John was one of the founders of the so-called “September Group” which comprised social scientists, historians, and philosophers, on the Left and predomi- nantly Marxists at the time, who were engaged in a common project: to re-phrase Marxist questions using modern language, and to address them with contemporary tools of social science and analytical philosophy.2 This was later to become known as analytical Marxism—one of the most prominent Marxist schools in the Anglo-Saxon world. Methodologically, John’s key contribution was to show that much of Marxian eco- nomics can be derived using modern concepts of equilibrium and optimization: the Marxist phenomena of crisis, exploitation, class and technical change, among others, can be conceptualized as equilibrium phenomena of economies with optimizing indi- viduals. John’s models made analytical Marxism a force to be reckoned with in the social sciences. Whatever one thinks of the interpretation of Marx’s economics offered there, Analytical Foundations of Marxian Economic Theory (Roemer 1981) remains a classic. Substantively, it is fair to say that John’s most original and lasting contribution to Marxian economics is his reformulation of the theory of exploitation and class (Roemer 1982a,b,c, 1988). First, he showed that, in the general equilibrium of a range of competitive economies, a robust relationship exists between (Marxian) exploitation and class, and between wealth and class (where class is defined not in terms of income, but in terms of relation to the labor process). Then, exploring the normative foundations of the concept of exploitation, he argued that exploitation’s injustice is a special case of injustice due to unequal ownership of productive assets. Two of the articles published in this special issue deal with these topics. In “Marx’s CapitalThroughtheLensofRoemer’sGeneralTheory(andVice-Versa)”,GilSkillman considers how Roemer’s theory of exploitation and class has engaged and reframed the historical materialist critique of capitalism initiated by Marx’s Capital project. In “Globalisation and Inequality in a Dynamic Economy: An Axiomatic Model of Unequal Exchange”, Roberto Veneziani and Naoki Yoshihara provide an axiomatic 2 The September Group has comprised, among others, Jon Elster, Adam Przeworski, Robert Brenner, Philippe van Parijs, Hillel Steiner, Erik Olin Wright, and especially, Gerald A. Cohen who has had a profound influence on John’s thought. 123 Social welfare, justice and distribution 417 analysis of Roemer’s theory of exploitation using the standard tools of social choice and extend the key insights of exploitation theory to a general dynamic model of the global economy. 3 Equality of opportunity The analysis of the theory of exploitation as the foundation of the Marxian condemna- tion of capitalism represented John’s entry point into the theory of distributive justice and normative economics, starting with Howe and Roemer (1981). He was led to political philosophy in an attempt to understand why Marx’s concept of exploitation diagnosed an instance of injustice. In 1993, John published his most cited paper to date, which contained the seed of his theory of equality of opportunity (Roemer 1993). Traditionally, equality of opportunity was understood as the absence of legal bar to access to education, to all positions and jobs, and the fact that all hiring was meritocratic. This traditional view was mostly challenged in political philosophy to additionally require compensating persons for a variety of circumstances whose distribution is morally arbitrary (e.g., Rawls 1971; Dworkin 1981a,b). Building on these philosophical contributions, John formalized a precise definition of equality of opportunity in an economic framework as an explicit method of selecting policies among a set of alternatives. In general, a policy can be reduced to a proposal for the allocation of some finite amount of resource across types of individuals sharing circumstances (i.e., aspects beyond the individual’s control that influence her status) as a function of the effort (i.e., aspects that also influence the individual’s status but over which she has at least some control) they invest. An equal-opportunity policy, with respect to an objective, should allocate the resource so that the degree to which an individual achieves the objective is a function only of her effort, and therefore independent of her circumstances. John’s theory remains extremely influential today3 and five papers in the special issue are related to it. In “Equality of Opportunity: How to encompass Fifty Shades of Luck”, Arnaud Lefranc and Alain Trannoy explore the issue of luck in the design of equal-opportunity policies. In “Inequality of income acquisition: The role of child- hood circumstances”, Paul Hufe, Andreas Peichl, John Roemer and Martin Ungerer estimate the effect of circumstances on income acquisition and find that the fraction of inequality attributable to circumstances is larger than in earlier empirical studies. In “Preferences for redistribution and social structure”, Erik Schokkaert and Tom Truyts investigate the consequences for redistributive preferences of homophilous reference group formation based on talent. In “Ex Post Inequality of Opportunity Comparisons”, Marc Fleurbaey, Vito Peragine and Xavier Ramos propose different criteria to rank income distributions according to an equality of opportunity approach. Finally, in “Gender and inequality of opportunity in Sweden”, Markus Jantti, Karin Hederos Eriksson and Lena Lindahl apply the theory to Sweden and find that gender is the 3 His 1998 book on the topic (Roemer 1998) has more than 2000 citations, according to Google Scholar. 123 418 J. D. Moreno-Ternero, R. Veneziani single most important circumstance in accounting for inequality in long-run income (and opportunities). 4 Distributive justice Although the theory of equality of opportunity represents one of John’s main con- tributions to normative economics, it is difficult to identify a topic in the theory of distributive justice that he has ignored. After more than 20 years, Theories of Dis- tributive Justice (Roemer 1996) remains a magisterial presentation of all of the main approaches and a deep, rigorous and original discussion of some of the key problems in distributive justice. But John has also analyzed issues of axiomatic bargaining (e.g., Fleurbaey and Roemer 2011), intergenerational justice (e.g., Roemer and Veneziani 2004), the veil of ignorance (e.g., Roemer 2002; Moreno-Ternero and Roemer 2008), fair allocation (Roemer 1986; Moreno-Ternero and Roemer 2006, 2012) and public ownership (Moulin and Roemer 1989; Roemer and Silvestre 1993). Three papers in the special issue deal with these topics. Two of them provide axiomatic analyses of distributive justice.4 In “The greatest unhappiness of the least number”, Walter Bossert and Kotaro Suzumura analyze a pure social choice problem in which they characterize the least-unhappiness principle, which is formally equivalent to the anti-plurality rule. So do Richard Brady and Chris Chambers in “A spatial analogue of May’s theorem”, where they establish that the geometric median satisfies Maskin monotonicity, anonymity, and neutrality (uniquely, for three agents) in a spatial model with Euclidean preferences. From a different vantage point, Woojin Lee and Younghoon Yoon, in “Capital in South Korea: 1966–2013”, deal with the dynamics of capital in South Korea, following Piketty’s successful research line, to which John has also paid close attention lately. 5 Kantian allocations More recently, John has started to investigate what an equilibrium would look like in an economy where people are motivated by more public or cooperative concerns, rather than being driven by self-interested utility-maximizing behavior. The starting point of his analysis is the observation of many instances of cooperative behavior, both in the lab and in the economy, contrary to the predictions of the standard maximizing models. One explanation of this behavior assumes that people are standard utility maximizers but are endowed with ‘altruistic preferences’. Yet, methodologically, this kind of explanation has an almost circular flavor. Substantively, in large economies one immediately faces a free-rider problem, as the welfare of others is a public good if an agent is an altruist. According to John, this suggests that cooperation, if it comes about, must involve some other optimization protocol which involves some kind of cooperative thinking. Specifically, John has recently proposed that cooperation may 4 Due to an unfortunate mistake in the editorial process, these two papers were both submitted to this special issue but appeared in a regular issue of the Journal (Social Choice and Welfare, 2016, Volume 47, Issue 1, pp. 127–139 and pp. 187–205). 123 Social welfare, justice and distribution 419 involve people engaging in ‘Kantian optimization’ (e.g., Roemer 2010, 2015) and choose the action that maximizes their payoff assuming that all other agents take the same action. This represents a fundamental departure from Nash behavior—and the related notion of Nash equilibrium—and may provide an alternative framework for thinking about individual behavior in a number of important economic settings. In “Fairness and the proportionality principle”, Alexander Cappelen and Bertil Tungodden deal with the problem of fair allocation and concentrate on a proportional rule somewhat similar to the one introduced by Roemer and Silvestre (1993), which is the intellectual forefather of Kantian equilibria. In “On seeing and being seen”, Jon Elster provides a thorough critical discussion of Kantian equilibria, and Kantian behavior, both from a broad philosophical perspective, focusing on Kant’s own theory, and from an empirical perspective, reconsidering some of John’s own (unpublished) empirical work. 6 Political economy John’s interest in inequality and distributive justice naturally led him to explore polit- ical competition. He became interested in political science because, as Lipset (1960) famously argued, elections are the democratic form of class struggle. In all advanced democracies, citizens organize their political competition through parties that compete in general elections. Recently, there has been a growing interest in providing formal models of political competition in general elections. The most commonly used models posit a unidimensional policy space and suppose that com- petition takes place between candidates whose sole motivation for running is to enjoy the power and privileges of holding office. Both assumptions, however, are quite unre- alistic. John’s work in this area has mostly been concerned with developing a theory of political competition on a multi-dimensional policy space and with policy-oriented candidates. The core of his theory, which builds around his celebrated concept of Party Unanimity Nash Equilibrium, or PUNE, is summarized in his 2001 book (Roe- mer 2001), but a range of applications have appeared in independent projects dealing with ambitious themes such as progressive income taxation (e.g., Roemer 1999), the role of democracy to foster equality (e.g., Roemer 2006), the role of racism in deter- mining political outcomes and redistribution (e.g., Lee et al. 2007), and the effect of caste on political competition and corruption in India (Acharya et al. 2015). In “Relinquinshing Power, Exploitation and Political Unemployement in Demo- cratic Organizations”, Carmen Beviá, Luis Corchón and Antonio Romero-Medina present a formal model to analyze the evolution of political power showing that, in some cases, rational agents who value the future may yield political power to another class, whereas in others exploitation is possible. In “The political choice of social long term care transfers when family gives time and money”, Philippe de Donder and Marie-Louise Leroux present a formal model of political choice for long term care which rationalizes an empirically observed fact: low income children provide informal help to their dependent parent while richer children provide financial help. 123 420 J. D. Moreno-Ternero, R. Veneziani In “Peripheral Diversity: Transfers versus Public Goods”, Klaus Desmet, Ignacio Ortuño and Shlomo Weber analyze the role of peripheral diversity in the problem of distribution. After micro-founding a new peripheral diversity index, they put forth a simple theory in which the cost of public goods increases with peripheral ethnolin- guistic diversity and tax compliance decreases with overall ethnolinguistic diversity. 7 Climate change In more recent years, John has concentrated on the pressing issue of climate change. Mostly in collaboration with Humberto Llavador and Joaquim Silvestre, he has aimed to provide a normative approach to global warming. There are two main issues in cli- mate justice. One concerns the just way to share the scarce global resource of a clean biosphere across generations. The other concerns the just way to share the respon- sibility of reducing greenhouse gas emissions between countries. It is now widely recognized that no attempt to solve the issues posed by climate change will succeed unless both aspects of the problem are taken into account. In the approach proposed by Llavador et al. (2015), a politically feasible solution to the international allocation problem requires that the dates at which the global South catches up to the global North in income per capita not be delayed from what they otherwise would have been. Subject to this constraint, the concept of sustainability proposed by them—which sig- nificantly departs from the predominant discounted utilitarianism—consists in finding an economic path that would maintain human welfare for all future generations, given environmental and technological constraints. They show that a sustainable path does exist in which the global South converges at the required speed, economic growth continues—albeit at a reduced rate—and global emissions of greenhouse gases stay below a reasonable limit. One paper in the special issue analyzes environmental issues and the notion of sustainability. In “Sustainable Growth”, Geir Asheim explores the view that a criterion of intergenerational equity serves to make choices according to ethical intuitions on a domain of relevant technological environments. Today, we celebrate John’s contributions in all of the above fields and hope that he will continue his research for many years to come. References Acharya A, Roemer J, Somanathan R (2015) Caste, corruption and political competition in India. Res Econ 69:336–352 Dworkin R (1981a) What is equality? Part 1: Equality of welfare. Philos Public Aff 10:185–246 Dworkin R (1981b) What is equality? Part 2: Equality of resources. Philos Public Aff 10:283–345 Fleurbaey M, Roemer JE (2011) Judicial precedent as a dynamic rationale for axiomatic bargaining theory. Theor Econ 6:289–310 Howe RE, Roemer JE (1981) Rawlsian justice as the core of a game. Am Econ Rev 71:880–895 Lee W, Roemer JE, Van der Straeten K (2007) Racism, xenophobia and distribution: multi-issue politics in advanced democracies. Harvard University Press and Russell Sage Foundation, Cambridge, MA Lipset SM (1960) Political man: the social bases of politics. Anchor Books, New York Llavador W, Roemer JE, Silvestre J (2015) Sustainability for a warming planet. Harvard University Press, Cambridge, MA 123 Social welfare, justice and distribution 421 Moreno-Ternero J, Roemer JE (2006) Impartiality, priority and solidarity in the theory of justice. Econo- metrica 74:1419–1427 Moreno-Ternero J, Roemer JE (2008) The veil of ignorance violates priority. Econ Philos 24:233–257 Moreno-Ternero J, Roemer JE (2012) A common ground for resource and welfare egalitarianism. Games Econ Behav 75:832–841 Moulin H, Roemer JE (1989) Public ownership of the external world and private ownership of self. J Polit Econ 97:347–367 Rawls J (1971) A theory of justice. Harvard University Press, Cambridge, MA Roemer JE (1977) Technical change and the tendency of the rate of profit to fall. J Econ Theory 16:403–424 Roemer JE (1980) A general equilibrium approach to Marxian economics. Econometrica 48:505–530 Roemer JE (1981) Analytical foundations of Marxian economic theory. Cambridge University Press, Cam- bridge, MA Roemer JE (1982a) Origins of exploitation and class: value theory of pre-capitalist economy. Econometrica 50:163–192 Roemer JE (1982b) Exploitation, alternatives and socialism. Econ J 92:87–107 Roemer JE (1982c) A general theory of exploitation and class. Harvard University Press, Cambridge, MA Roemer JE (1986) Equality of resources implies equality of welfare. Q J Econ 101:751–784 Roemer JE (1988) Free to lose. Harvard University Press, Cambridge, MA Roemer JE (1993) A pragmatic theory of responsibility for the egalitarian planner. Philos Public Aff 22:146– 166 Roemer JE (1996) Theories of distributive justice. Harvard University Press, Cambridge, MA Roemer JE (1998) Equality of opportunity. Harvard University Press, Cambridge, MA Roemer JE (1999) The democratic political economy of progressive income taxation. Econometrica 67:1–19 Roemer JE (2001) Political competition: theory and applications. Harvard University Press, Cambridge, MA Roemer JE (2002) Egalitarianism against the veil of ignorance. J Philos 99:167–184 Roemer JE (2006) Democracy, education, and equality. Econometric society monograph series. Cambridge University Press, Cambridge Roemer JE (2010) Kantian equilibrium. Scand J Econ 112:1–24 Roemer JE (2015) Kantian optimization: a microfoundation for cooperation. J Public Econ 127:45–57 Roemer JE, Silvestre J (1993) The proportional solution for economies with both private and public own- ership. J Econ Theory 59:426–444 Roemer JE, Veneziani R (2004) What we owe our children, they their children. J Public Econ Theory 6:637–654 123 Social welfare, justice and distribution An introduction to the special issue in honor of John Roemer 1 Introduction 2 Marxian Economic Theory 3 Equality of opportunity 4 Distributive justice 5 Kantian allocations 6 Political economy 7 Climate change References 
work_grp6rqugk5fwvgwb3bvhtfqpya	----	Climate Justice and Human Rights Abstract: Climate change as well as climate policies can have adverse effects on the human rights of certain population groups – and can exacerbate situations of injustice. As it stands today, the human rights regime is not set to sufficiently address these situations of climate injustice. In this article, I suggest a systematization of the normative climate justice literature that can be used as an analytical framework to evaluate current developments in human rights law and policy, and their potential to diminish inter-national, intra-societal and inter- generational climate injustice. I argue that further advancing procedural and substantive human rights obligations and corresponding enforcement mechanisms constitute one important way of establishing climate justice practices. Moreover, I suggest that the normative climate justice literature can be fruitfully used in International Relations to evaluate policy developments at the intersection between climate change and other policy fields. “The law – human rights law […] – is not ready-made to deliver climate justice: it must evolve. A question that arises is whether it can.” 1 1. Introduction In the face of anthropogenic climate change, we have begun to re-think justice. New reflections on the temporal and spatial aspects of justice have gained meaning. 2 It becomes increasingly relevant to consider how just relations between state actors, societies and generations in the context of climate challenges can be construed. Who bears the responsibility for and who are the ‘recipients’ 3 of climate justice? What obligations does climate justice entail? Stephen Humphreys has argued that climate justice begins with the law 4 . Human rights law and commentaries by the respective treaty bodies are clear about identifying rights-holders, duty-bearers and obligations. Climate justice means to comply with the rights standards already agreed upon even if climatic impacts imply more far-reaching and costly implementation obligations than expected when fundamental human rights treaties were adopted and ratified. As it stands today, however, the human rights regime is not set to sufficiently address situations of climate injustice, even more so as climate-related challenges exacerbate already existing situations of injustice. 5 There are various debates on how human rights could further evolve to appropriately protect rights-holders that are affected by climate change and climate- Author(s), Climate justice and human rights, International Relations (32.3) pp. 275-295. Copyright © The Author 2018. Reprinted by permission of SAGE Publications. 2 related activities. Important examples for these debates could be observed in the run-up to the 2015 Paris Conference of the Parties (COP). By the end of 2014, the Special Procedures mandate-holders of the Human Rights Council, among others, the Special Rapporteur on the Human Right to Safe Drinking Water, the Special Rapporteur on Extreme Poverty and Human Rights, and the Special Rapporteur on the Rights of Indigenous Peoples, sent a letter to the State Parties of the United Nations Framework Convention on Climate Change (UNFCCC) urging them to include human rights in the new climate agreement. 6 In the beginning of 2015, a group of 18 countries launched the ‘Geneva Pledge for Human Rights in Climate Action’ emphasizing the human rights implications of climate change and committing themselves to observing rights standards in climate-related action. 7 During the Paris negotiations, the academic Global Network for the Study of Human Rights and the Environment adopted a ‘Draft Declaration on Human Rights and Climate Change’. Its first principle declares that “Human rights and a profound commitment to climate justice are interdependent and indivisible”. 8 Also in the course of the negotiations, an inter-constituency alliance of non-state organizations (NGOs) persuaded states to institutionalize human rights in the climate agreement. This alliance comprised, among others, women and gender NGOs, youth NGOs as well as indigenous peoples’ organizations. The Paris Agreement adopted on 12 December 2015 now acknowledges in its preamble that state parties should: (…) when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity. 9 These preambulatory clauses 10 underline the close link between climate change, climate- relevant action, human rights and inter-generational justice. In this article, I want to delve deeper into understanding this link and the relationship between climate justice and human rights. I argue that an international human right to a clean and healthy environment is an important and comprehensive way to diminish climate injustice, understood as inter-national, inter-generational and intra-societal injustice, and therefore, it needs to be further developed. Human rights can be defined as principled ideas of protecting human beings and providing them with all necessary elements for a life in dignity. In this sense, they define the relationship between a state and its citizens but increasingly also regulate the behavior of private businesses and other non-state actors. 11 Human rights can be understood as a 3 normative concept (prescribing how this relationship should be) but also as an empirical concept (with concrete implementation measures pertinent to specific human rights treaties). Moreover, human rights can bridge the gap between normative climate justice claims and empirical climate justice practices 12 . Systematically analyzing claims brought forward in the normative climate justice scholarship against concrete developments in human rights law and policy helps to gain a better understanding of how climate injustice can be diminished through concrete human activities. These developments comprise procedural rights in climate policies to diminish intra-societal injustice, extraterritorial state obligations (ETOs) to diminish inter- national injustice and an international human right to a healthy environment. The latter is the most encompassing one, which would help to alleviate intra-societal, inter-national but also inter-generational injustice, and thus needs to be further institutionalized. It can be considered as emerging international law; it is anchored in several regional rights instruments and national constitutions but not yet fully institutionalized at the international level yet. This article shall help to grasp the linkages between scholarship on climate justice and policy development in the area of human rights. Its aim is to demonstrate that further advancing procedural and substantive human rights obligations and corresponding enforcement mechanisms constitutes an important way of developing just climate practices. Bringing these often disconnected debates from Law and Political Theory together is a fruitful endeavor for International Relations (IR) scholars interested in climate change, human rights, or the institutional interaction between both. By systematically analyzing the normative literature on climate justice I suggest an analytical framework that can be useful in IR to evaluate institutional and policy developments against claims formulated by Political Theorists and Philosophers on how to diminish climate injustices. This article is structured in the following way. First, I will disentangle the relationship between human rights and climate change. Second, I will systematize the literature on climate justice along three dimensions, inter-national, intra-societal and inter-generational injustice. In a third step, I will introduce developments on ETOs, procedural rights and an emerging human right to a healthy environment, and I will link these to the considerations on climate justice. Fourth, I will ask: What are the advantages and disadvantages of a human rights-based approach to climate justice? Finally, I will conclude by stating that strengthening further human rights developments, especially with a view to establishing a human right to a health environment, can make an important contribution to achieving more climate justice. 4 2. The Relationship between Climate Change and Human Rights The relationship between human rights and climate change is two-fold. One the one hand, the consequences of climate change have adverse effects on the enjoyment of human rights. And on the other hand, climate policies can lead to rights infringements of local communities, in particular indigenous peoples. In the face of climate change, all three dimensions of human rights, (1) civil and political rights, (2) economic, social and cultural rights but also (3) collective rights can be at risk. Climate impacts, including heat waves, floods, storms, droughts and exceptional weather events can – in extreme cases – threaten civil and political rights, like the right to life. It is bindingly anchored in the International Covenant on Civil and Political Rights (ICCPR, 1966) and the Convention on the Rights of the Child (CRC, 1989). Sea level rise, temperature increase and changes in precipitation can also negatively affect the right to food, the right to water, the right to health and the right to adequate housing. 13 All of these social rights are part of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). At the same time, they are also anchored in several core treaties of the UN Human Rights System, such as the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the 1989 CRC or the 2006 Convention on the Rights of Persons with Disabilities (CRPD). Cultural rights are also affected by the implications of climate change. Human rights arguments in this area are raised to strengthen international cooperation for adaptation and mitigation programs to protect world heritage from changed weather conditions, temperature increases, floods, storms and droughts. 14 The implications of climate change also affect collective rights, such as the right to self- determination. It is anchored in the ICESCR and the ICCPR, and reveals that peoples should be free to determine their political status but also their economic, social and cultural development. The right to self-determination can be threatened by rising sea levels and extreme weather events endangering the territorial existence of low-lying island states. It can also be at risk if indigenous peoples lose their traditional habitat as source of subsistence. When human beings have to abandon their state territory, their legal status and protection in the international system is unsettled. 15 Moreover, climate impacts adversely affect the collective right to a healthy environment. Such a right is not yet bindingly anchored in the international human rights system of the UN. Nevertheless, it has found entrance into regional conventions, such as the 1981 African Charter on Human and Peoples‘ Rights, the 2003 Protocol to the African Charter on Human 5 and Peoples’ Rights on the Rights of Women in Africa, the 2004 Arab Charter on Human Rights or the 1988 Additional Protocol to the American Convention on Human Rights. Thus, it can be considered to be a binding human right in several world regions. In addition to this, we can find judisprudence generated by different regional courts. The European Court of Human Rights, for instance, has made several rulings in favor of complainants in relation to environmental risks and pollution. It has also applied international environmental law principles and made reference to the decisions of other regional courts. In addition to that, there is a global trend to adopt environmental rights into national or federal constitutions. 16 Table one summarizes the adverse effects of climate change on human rights. 6 Table 1: The Adverse Effects of Climate Change on the Enjoyment of Human Rights 17 Climate Impact Human Impact Rights Affected Regions Concerned Sea Level Rise  Flooding  Sea surges  Erosion  Salination of land and water  Loss of land  Drowning, injury  Lack of clean water, disease  Damage to coastal infrastructure, homes and property  Loss of agricultural lands  Threat to tourism, lost beaches  Life (ICCPR, 6)  Self-determination (ICCPR, ICESCR, 1)  Health (ICESCR, 12)  Water (ICESCR 11,12)  Means of subsistence (ICESCR, 11)  Adequate housing (ICESCR, 11)  Culture (ICCPR, 27)  Property (UDHR, 17) Coastal (Low-lying) Areas Low-lying Island States Arctic Region Temperature Increase  Change in disease vectors  Coral bleaching  Impact on fisheries  Impact on agriculture  Spread of disease  Change in fisheries  Change in agriculture  Lost diversity  Threat to tourism  Life (ICCPR, 6)  Health (ICESCR, 12)  Means of subsistence (ICESCR, 11)  Adequate standard of living, food (ICESCR, 11) Sub-Saharan Africa Northern Africa South-Asia Latin America Middle East Extreme Weather Events  Higher intensity storms  Sea surges  Dislocation of populations  Contamination of water supply  Damage to agriculture (food crisis)  Psychological distress  Increased transmission of disease  Disruption of education  Damage to tourism  Property damage  Life (ICCPR, 6)  Health (ICESCR, 12)  Water (ICESCR, 11,12)  Means of subsistence (ICESCR, 11)  Adequate standard of living (ICESCR, 11)  Adequate housing (ICESCR, 11)  Education (ICESCR, 13)  Property (UDHR, 13) South-East Asia South Asia Caribbean Coastal Zones Island States Changes in Precipitation  Change in disease vectors  Erosion  Outbreak of disease  Depletion of agricultural soils  Life (ICCPR, 6)  Health (ICESCR, 12)  Means of subsistence (ICESCR, 11) Sub-Saharan Africa South-East Asia South Asia Latin America Based on data from: Marcos A. Orellana and Alyssa Johl, Climate Change and Human Rights: A Primer, (Washington: The Center for International Environmental Law, 2013) and supplemented with data from: OHCHR, Report. 7 On the other hand, there are empirical studies demonstrating that the implementation of climate policies can also lead to severe human rights violations. This concerns mitigation measures, such as Reducing Emissions from Deforestation and Forest Degradation (REDD+) programs, Clean Development Mechanism (CDM) projects 18 and Green Economy (GE) strategies 19 . It has been highlighted that in particular the transition process to altering energy patterns and a low-carbon economy can lead to human rights violations of local communities, indigenous peoples and (agro)-pastoral groups. 20 Rights infringements pertinent to climate policy implementation often occur in the context of conflicts around property, land and resources. This means that in very extreme cases, violations to the right to life have been reported, particularly when violent relocations were undertaken. 21 Furthermore, the right to property specified in Article 17 of the Universal Declaration of Human Rights (UDHR), and the right to development, stipulated in the Declaration on the Right to Development, are often neglected. Similarly affected is the right to self-determination and the right to subsistence as well as related social rights to adequate housing, to food, to water and to health (ICESCR). Thus, one can conclude by stating that human rights are at risk due to severe climate impacts and can be infringed with climate policy implementation. 3. Dimensions of Climate Injustice There is a bulk of literature on climate justice, which is characterized by conceptual uncertainty. Despite this conceptual vagueness, considerations of climate justice have a few common denominators. They, first, stipulate a relational understanding of justice, i.e. the cognition that justice needs to be achieved between different actors. Therefore, it is relevant to establish the recipients (and burden-bearers) of justice and to establish which entities, i.e. individuals, groups, or countries, can raise claims against others. 22 Second, there is the perception that climate change consequences exacerbate already existing inequalities. 23 Environmental challenges can intensify economic and social disparities that might have their root causes elsewhere. Third, injustice in the context of climate change pertains to a situation, in which those who are the least responsible for greenhouse gas emissions are the ones that are most affected and most vulnerable to climate change consequences but have the fewest resources to adapt. 24 In this section, I aim at systematizing the literature on climate justice along several characterizing features, including recipients, burden-bearers, temporal aspects and normative 8 claims. Whereas some authors highlight justice concerns between states, i.e. inter-national injustice, others point to injustice between social groups, i.e. intra-societal injustice, or to an evolving injustice between today’s and future generations, i.e. inter-generational injustice 25 . Deriving from these varying understandings, respective normative claims to enhancing climate justice also differ considerably. Inter-national injustice emphasizes the historically grown relationship between developing and developed states 26 . The main concern is that developed countries have extensively utilized carbon-intensive industries to foster growth and developing countries (and emerging economies) shall not be able to do the same in the future. 27 Many developing countries are, in addition to that, confronted with the consequences of climate change most severely by facing extreme weather events, increasing floods and intensified droughts. Hence, there is an imbalance between the contribution to climate change (by developed states), harm resulting from that and lacking resources to adapt (of developing states). This dimension of injustice is historically grown; it has its roots in colonial times, has been reinforced with globalization processes and is reflected in current institutions. 28 Normative claims in inter-national injustice debates are that greenhouse gas emissions have to be reduced, adaptation and mitigation costs have to be more equally distributed and should relate to historic emission responsibilities (e.g. the polluter-pays-principle), energy and other consumption patterns need to alter, and fair institutions need to be created. 29 Some of these claims are also reflected in the “common but differentiated responsibilities” approach put forward in the 1992 UNFCCC. Harris, Chow and Karlsson, however, suggests to “[…] open up the traditionally closed box of ‘‘the state’’, [to] see that the real divide is not so much between developed and developing states as it is between affluent and poor people”. 30 Such intra-societal injustice concerns refer to the relationship among different groups between or within societies. Particular social groups are unequally exposed to the impacts of climate change to which they have contributed little. Environmental inequality “[…] reinforces and, at the same time reflects, other forms of hierarchy and exploitation along lines of class, race and gender” and may lead to situations of “double-discrimination”. 31 A report by the UN Human Rights Council identified women, children and indigenous peoples – but also the elderly and persons with disabilities – in developing countries to be particularly vulnerable to such challenges. 32 Questions of social injustices have also been taken up by climate justice movements. Concrete demands in this respect do not only refer to equity but also to participation on the basis of comprehensive information, access to judicial remedies and compensation. 33 Increasingly, claims for 9 procedural justice and rights are also brought forward in the context of climate policy implementation. In 2010, under pressure of the climate justice movement, procedural rights were institutionalized for the implementation of REDD+ programs at the COP in Cancun. 34 Finally, inter-generational justice pertains to the relationship between previous, current and future generations. Past and contemporary lifestyles, marked by the consumption of fossil fuels and high greenhouse gas emissions, have led to injustice toward future generations who might not be able to enjoy a clean and healthy environment. 35 The current generation of decision-makers needs to be held accountable for not imposing risks on future generations who are not responsible for greenhouse gas emissions. Demands in this respect comprise the establishment of environmental rights 36 , energy rights 37 but also rights-protecting institutions. 38 The idea behind such considerations is to introduce constitutional environmental human rights that oblige today’s representatives to adopt policies that take the interests of future generations into account fostering ways of indirect (and inter-generational) democratic representation. 39 All of these dimensions of injustice can also overlap, which means that future generations of certain societal groups in developing countries will be particularly exposed to these forms of injustice. Table two summarizes the dimensions of climate injustice. 10 Table 2: Dimensions of Climate Injustice Inter-national Injustice Intra-societal Injustice Inter-generational Injustice Character of injustice Imbalance between states’ responsibility and harm as well as resources to adapt Imbalance between societal groups’ responsibility and harm as well as resources to adapt Imbalance between past/current/future generations’ responsibility and harm as well as resources to adapt Recipients Developing states Societal groups, communities, individuals Future generations Burden- bearers Developed states Capable states, international community Capable states, international community Time range Historically grown Immediately Historically grown Immediately Historically grown Immediately In the future Claims Fair distribution of adaptation and mitigation costs, just institutions, compensation, reduction of greenhouse gas emissions Participation, information, transparency, access to judicial recourse procedures Transition to altering energy and consumption patterns and to a low- carbon, sustainable economy, codification of environmental rights Source: Own compilation on the basis of the literature cited. 4. Linking Climate Justice and Human Rights Debates In the following section, I aim to link normative claims stipulated in the climate justice literature with concrete developments in human rights debates and practices. Extraterritorial State Obligations Rights obligations beyond borders have been intensively discussed in human rights scholarship, particularly after the introduction of the 2011 Maastricht Principles on Extraterritorial State Obligations (ETOs). In the literature, ETOs are discussed as “transboundary” or “transnational obligations”. 40 They can be grasped as an obligation to international cooperation for realizing economic, social and cultural rights. 41 This obligation is derived from several provisions of the UN Charter, the UDHR, the ICESCR but also of more recent treaties like the CRC. 42 Article two of the ICESCR, for instance, states that: 11 Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant […]. 43 This implies that member states are not only responsible for rights realization on their own state territory. In case they dispose of respective resources, they also assume responsibility for engaging into cooperative activities to progressively help implementing economic, social and cultural rights beyond their own territory. Next to territorial duties a state engages in when legally accepting a treaty, it also takes over extraterritorial obligations for the citizens of another state. The meaning of ETOs becomes increasingly important in the context of progressing de- nationalization and global challenges. In one of his reports, the UN Special Rapporteur on Human Rights and the Environment, clearly states that the obligation to international cooperation is particularly relevant with regard to “[…] global environmental threats to human rights, such as climate change”. 44 Moreover, the Maastricht Principles underscore that states have an obligation to avoid extraterritorial harm which is due to activities or omissions of other states or even non-state actors, such as private companies. ETOs, for instance, were clearly stated in the petition issued by Greenpeace South Asia with other NGOs requesting an investigation of the responsibility of major fossil fuel companies for human rights violations resulting from the impact of climate change in the Philippines. These so-called “carbon majors” include Chevron, Exxon, BP and Shell, among others. The Commission on Human Rights of the Philippines reacted to this petition and launched a first-ever investigation into the responsibility of these companies for the drastic climate-related rights impacts on its population in 2015. Public hearings will take place in this ground-breaking case in 2017. The petition clearly states that: “[…] extraterritoriality is not a bar to the Commission’s exercise of authority, considering the transboundary and global nature of climate change and other environmental problems and the associated human rights implications.” 45 ETOs entail the obligation to cooperate in order to realize economic, social and cultural rights even in the face of a changing climate. 46 This interpretation implies that there is a requirement to assist developing countries to bear the costs of adaptation and mitigation policies. 47 Thus, the concrete implementation measures in human rights treaties can be viewed as minimum standards that need to be achieved through adaptation and mitigation measures. The loss and 12 damage article of the 2013 Warsaw Agreement calls for cooperation and cost-sharing in building the resilience of communities and ecosystems, including risk assessment and management, as well as non-economic losses. Here again human rights serve as a guidepost – all cooperative action must be implemented with a view to protect basic human rights standards. Hence, conforming states would foster inter-national justice by providing assistance to those states that lack resources to shoulder costly action to respect, protect and fulfill human rights in the context of climate-related challenges. Even more so, states and international organizations (IOs) would further intra-societal justice by assisting those community members of a society that are most affected in their enjoyment of human rights. A further principle emphasized in the Maastricht recommendations is the right to informed participation in any matters affecting citizen’s rights. 48 This is an important claim in intra-societal justice considerations and constitutes a fundamental human rights principle. The significance of participation is also reflected in current debates on procedural obligations in environmental policy-making. Procedural Rights Procedural rights are of particular importance in environmental law. They establish a link between the state and civil society by fostering transparency and participation in environmental decision-making. 49 The most important procedural rights are the right to information, the right to participation and the right to justice, the latter usually meaning access to judicial and administrative recourse procedures. All of these rights are anchored in the 1948 UDHR and the 1966 ICCPR. Of far more influence in environmental matters, however, is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, also known as the Aarhus Convention from 1998. Although it is only binding for ratifying states, it turned out to become the most relevant reference document when it comes to procedural rights in environmental matters. It has been drafted under strong NGO influence and focuses on establishing fair procedures for environmental regulations. 50 Scholars accentuate the human rights character of the Aarhus Convention as it confers rights to individuals and not to states, it strengthens procedural mechanisms, and comprises non-compliance procedures that are very similar to those of the human rights monitoring bodies. Thus, it can be interpreted as a door-opener for a human right to a healthy environment. 51 13 Although, procedural rights are well-established in environmental law already and relevant case law from the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights and the Committee on Civil and Political Rights, they have recently gained increasing meaning in climate policy-making. During the COP 2010 in Mexico, for instance, procedural criteria for the realization of REDD+ programs were added to the Cancún Agreements. These safeguards encompass respect for the knowledge and rights of indigenous peoples and local communities as formulated in the 2007 UN Declaration on the Rights of Indigenous Peoples as well as effective participation of all affected people and free prior informed consent (FPIC) as anchored in the 1989 ILO Indigenous and Tribal Peoples Convention. A number of NGOs lobby for a revision of the modalities and procedures of the CDM in line with these rights. 52 Infringements of local populations’ and indigenous peoples’ rights in relation to CDM project realization on the ground have continuously been a problem leading, for instance, to a landmark decision of Panama to withdraw the UN registration of its Barro Blanco hydroelectric dam project towards the end of 2016. 53 In the aftermath of COP 21 in Paris and during COP 22 in Marrakech procedural rights and institutional safeguards have also been discussed in relation to the newly established Sustainable Development Mechanism (SDM). 54 Prior to the Marrakech negotiations in 2016, the OHCHR has made a submission to the UNFCCC process emphasizing “the need for robust social and environmental safeguards consistent with international human rights norms and standards” to guarantee that the SDM clearly achieves its objectives without contributing to rights violations. 55 Besides their reflection in the UDHR, the ICCPR, the Rio Declaration and the Aarhus Convention, these procedural human rights obligations are further developed through the general comments of several treaty bodies and by the Special Rapporteurs as well as the ECtHR. 56 Procedural rights can strengthen adaptation policies through the inclusion of valuable local knowledge and participation in decision-making. Mitigation action is much more likely to be accepted if it is developed in line with FPIC and in a transparent and participatory way. Previously, we have seen a number of mitigation policies becoming unsustainable, such as Barro Blanco introduced above, because the exclusion of affected population groups leads to contestation and conflict. Regarding loss and damage, the use of local knowledge, transparency and access to information are necessary for disaster preparedness, as well as risk assessment and management. 14 The considerations made above show that procedural rights are particularly relevant when it comes to climate policy implementation. Even though there is empirical evidence that safeguards maybe difficult to adapt to local contexts or are not always carried out properly 57 , they have the potential to diminish intra-societal injustices. by providing information, ensuring transparency, including individuals and communities into environmental decision- making, granting access to the judiciary and administration and thus, enhancing participation opportunities. A Human Right to a Healthy Environment Although there is no substantial universal human right for the protection of the environment yet, its development is underway. 58 The human rights treaty bodies have in several commentaries recognized the link between a healthy environment and the rights to life, adequate housing, food, water and health. 59 Some scholars have made concrete suggestions on how a right to a healthy environment could be formulated. 60 Others point to the fact that it can be derived from other substantive rights affected in the context of environmental challenges. Regional bodies including the European Committee on Social Rights (ECSR), the IACHR and the African Commission on Human and Peoples’ Rights (ACHPR) have confirmed that environmental challenges can lead to infringements of economic, social and cultural rights like the right to health, water and food. 61 There are also several cases, in which the ECtHR has already enforced social rights with respect to environmental matters and demanded compensation even by private polluters. 62 Other indicators pointing to further developments in this respect are the establishment of environmental rights in regional human rights instruments and a large number of national constitutions. 63 Some scholars argue that due to the existence and application at the regional and national level, a right to a healthy environment is already consolidated. The UN Special Rapporteur on Human Rights and the Environment, John Knox, calls upon states to accept procedural but also substantive human rights obligations relating to the environment as existing or emerging international law. 64 One important argument underlining this emergence is closely related with ETOs and the duty to international cooperation stipulated in the ICESCR. Knox highlights the significance of cooperation in the face of climate change: “The most feasible basis for extending current environmental human rights jurisprudence to climate change is the duty to cooperate”. 65 Hence, one can understand the ICESCR as the basis for further developments in environmental human rights law and the 15 duty to cooperate anchored therein can pave the way to an emerging international human right to a healthy environment. In November 2017, Knox has held consultations on Draft Guidelines on Human Rights and the Environment. Article 9 of these guidelines outlines that every state has an obligation to establish and enforce a normative framework for a clean, healthy and sustainable environment, including: “effective legal and institutional mechanisms to regulate the activities of public and private actors in order to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights.” 66 By defining procedural and substantive obligation in relation to preventing, reducing, and remedying environmental harm that interferes with the enjoyment of human rights, Knox has made an important further step towards an international environmental human right through legal analysis and emerging practice. With the establishment of a human right to a healthy environment, states could make use of the United Nations human rights system to regularly monitor whether adequate actions as well as appropriate cooperation programs with respect to adaptation, mitigation and loss and damage are in place. The Universal Periodic Review Mechanism, the Special Procedures (consisting of thematic and country-specific mandates) and the treaty body (a new one would be created with a new binding human rights treaty) would help states to engage into a dialogue, make concrete recommendations, and strengthen capacities and technical assistance, in order to protect human rights in the face of climate impacts and in order for climate policies to be implemented in consistence with human rights standards. A human right to a healthy environment is oriented towards protecting individuals and communities from adverse climate change impacts today and in the future. By emphasizing the duty to international cooperation, it shows strong parallels with the debate on ETOs and hence, bears the potential to advance inter-national justice (by providing assistance) and intra-societal justice (by fulfilling the rights of societal groups). An environmental human right would also take the interests of future generations into account by fostering cooperative activities to guarantee clean air, water and land. This means this emerging norm has the potential to contribute to inter-generational justice – reflecting the demand for protecting future generations on the basis of equity and common but differentiated responsibilities stipulated in the 1992 UNFCCC. Thus, a human right to a healthy environment can be considered the most encompassing step that would contribute to achieving more inter- national, intra-societal and inter-generational justice. 16 5. Advantages and Disadvantages of a Human Rights-Based Approach to Climate Justice What are the advantages and disadvantages of a human rights-based approach to climate justice – and of strengthening the human rights regime, i.e. ETOs, procedural rights and a human right to a healthy environment, in the context of contemporary climate challenges? Let us begin with carving out the advantages. First, human rights can bridge the divide between normative justice claims and empirical climate practices, i.e. human activities to diminish climate injustice. Human rights constitute a normative concept, but at the same time, rights instruments also entail concrete empirical implementation measures. Since the adoption of the UDHR, recognition for equal and inalienable rights has been understood as building the foundation for justice. 67 Today, scholars increasingly link already existing human rights obligations to climate change 68 and climate justice. 69 Knox reminded negotiating state parties in Paris that: “States’ human rights obligations also encompass climate change,” and that “[…] they must ensure that all of their actions comply with their human rights obligations. That includes their actions relating to climate change”. 70 In fact, there is no single state government in the world anymore that has not committed to at least one of the UN core conventions on human rights. 71 And these entail concrete implementation measures, including ETOs in conventions containing economic, social and cultural rights, which can serve as a guidepost for just climate practices. This means realizing existing human rights, closing implementation gaps and further developing the human rights system can be understood as a concrete climate practice diminishing inter-national, intra-societal and inter-generational injustice. Second, the language of human rights is strong; it emphasizes the need for immediate political action and cannot be easily ignored in contemporary politics. 72 State actors from liberal and democratic countries usually shy away from neglecting human rights because they consider them to be an integral part of their identity. 73 Human rights models, such as the Boomerang Pattern or the Spiral Model of Human Rights Change, emphasize how human rights norms become adopted and internalized if pressure from above, i.e. by transnational human rights networks, and from below, i.e. by domestic opposition groups, is exerted. 74 Thus, embedded in a human rights discourse, climate change is framed a matter of immediate human urgency – as opposed to a technocratic matter of interstate negotiations. It emphasizes a “pressingly relevant” need for action employing the “muscular language of human rights” 75 and it can unleash argumentative, persuasive or pressure mechanisms exerted on state actors to change 17 climate policies and make them more human-centered. The employment of pressure and persuasion mechanisms becomes more likely as recently also some of the big human rights NGOs, Human Rights Watch and Amnesty International, have taken up the issue of climate change and become particularly active in this regard. 76 Third, by employing a human rights-based approach to climate justice, the situation of individual and collective rights-holders becomes central (as opposed to tedious state negotiations). Human rights define the relationship between a state government and its citizens. 77 Rights norms have a hybrid function; they constitute inter-state regulations, but also define norms relevant within societies, for respective rights-holders. This focus on the rights-holders is particularly important if one takes the trans-boundary character of climate change and its unequal implications on vulnerable groups and individuals into consideration. Women, children, elderly, disabled or indigenous peoples and standards for their protection move to the center of attention and policy solutions – as opposed to political negotiations. Fourth, a human rights perspective can be fruitful for assigning obligations. In many cases, these can be derived from the required implementation measures of already existing human rights treaties state parties have committed to. Obligations do not only exist between a ratifying state government and its citizens but also between a ratifying capable state government and the citizens of other, less capable countries. This duty to international cooperation can be found in the UN Charter, the UDHR and the ICESCR. 78 Obligations to international cooperation are also stipulated in targeted treaties, like the CRC, and other conventions containing economic, social and cultural rights. The 2011 Maastricht Principles constitute a recent attempt to strengthen extraterritorial obligations of states and IOs as well as state responsibility for the acts and omissions of non-state actors and transnational corporations. 79 Fifth, human rights and the obligation to international cooperation as reaffirmed in the Maastricht Principles can build the constitutive basis for climate policy programs. Procedural safeguards can guide the design of climate policies, like REDD+ programs, CDM or SDM projects as well as green economy policies. This means a “human rights-based approach to climate change negotiations, policies and measures” 80 can help vulnerable states in cooperating with capable states and IOs to face the consequences of climate change, to design just climate policies and to implement the human rights of their citizens at the same time. Finally, a human rights framework can build an analytical umbrella around many relevant issues pertaining to climate change. It accommodates various aspects of human security, of 18 migration and the protection of climate refugees, and – by fostering economic, social and cultural rights – it frequently enters common ground with development issues. Hence, a broad-ranging human rights framework embraces a variety of issues relating to climate justice (that cannot be merely treated in isolation from each other) with a view to protecting affected vulnerable groups and individuals. The main disadvantages or challenges pertaining to a human rights-based approach to climate justice are, first of all, enforcement and compliance. Although some human rights conventions, such as the CRC or CEDAW, have been nearly universally ratified, key gaps in implementation prevail. In IR scholarship on norms, this “compliance gap” 81 has been grasped in conceptual differentiations between “prescriptive status” and “norm-consistent behavior”. 82 Progressive human rights realization of economic, social and cultural rights is a key challenge and the consequences of climate change exacerbate implementation challenges. The chronic under-fulfillment of human rights goals often lead to skepticism with respect to adopting a rights approach to climate justice. 83 Second, scholars and practitioners have pointed to the impossibility of disentangling cause and effect when it comes to climate change implications on human rights. 84 Anthropogenic climate change has mainly been caused in industrialized states, mostly by private companies, and has devastating effect among vulnerable societal groups in developing countries that often lack the resources to adapt. According to human rights treaties, the ratifying state governments are primarily responsible for respecting, protecting and promoting the rights of their citizens. This would mean that – in the first place – governments of developing states (who do not bear the main responsibility for climate change) have the obligation to secure their citizens’ human rights. If they are lacking the capability to do so, the international community has the duty to cooperate. This complex constellation of cause and effect over time, however, as well as the involvement of public and private actors at various levels and in different world regions makes identifying duty-bearers and assigning (extraterritorial) obligations an ambiguous task 85 . Third, there are concerns about potentially over-expanding the international human rights catalogue, which comes with the risk of devaluing it. 86 Since 2008, there have been six resolutions passed by the Human Rights Council on the relationship between climate change and human rights. The question is whether, next to non-binding resolutions and declarations, a new convention on the same level as the core UN human rights treaties can evolve (potentially embracing an international human right to a healthy environment). There could be 19 strong arguments for rights concerns in the context of climate change to be covered under the ICESCR – and even adding another optional protocol to it can been regarded as a fairly ambitious endeavor. 87 The skepticism around economic, social and cultural rights and even more so regarding collective rights will make the adoption and implementation of environmental human rights a difficult task. Fourth, inter-generational aspects are difficult to work in practice by current decision-makers and have so far mostly been addressed by scholars in Political Theory and Philosophy. 88 Although scholars argue that constitutionally guaranteeing a fundamental human right to a healthy environment today, would enable favorable conditions for rights protection in the future 89 , several concerns remain. Who exactly can speak for future generations, how can they be represented and in which way can we assess their interests? 90 Protecting the rights of future generations in a changing environment means to reshape current political systems and institutions 91 , which is quite an ambitious endeavor and often too far away from current political realities and agendas. Fifth, there are ideological tensions between the human rights and the environmentalist movement. Whereas the human rights movement has an anthropocentric orientation, placing human beings in the center of decision-making, environmentalists rather follow an ecocentric approach, focusing on the entire ecosystem. This tension can lead to different priorities when it comes to the formulation of policy programs, specifically on issues like development, economic growth or population control, 92 and can lead to a situation in which a human rights framework may lack the necessary support of environmental groups. Finally, the human right to a healthy environment as a collective right is severely contested. Collective rights belong to the third dimension and are not bindingly anchored in the UN human rights edifice due to many states questioning their universality. Thus, environmental rights have found entrance in many national constitutions and some regional conventions but there is resistance regarding the establishment of an international human right. Although there is an intensive academic discourse encompassing normative claims for a right to ecological space 93 , environmental rights 94 or concrete formulations for a substantive human right for the protection of the environment 95 , its development in practice still is controversial. An awareness of these arguments and counterarguments is important for taking a clear position in this debate. In this article, I argue in favor of strengthening procedural rights, extraterritorial state obligations and a human right to a healthy environment as relevant ways to diminish climate injustice. Let me briefly explain how I would reply to the disadvantages 20 or counterarguments brought forward above. Enforcement and compliance deficits within the human rights system only partly relate to lacking political will and are very often caused by missing capacities, resources and expertise 96 . Thus, increased cooperation leads to better compliance, especially when it comes to economic, social and cultural rights that are mostly affected by climate change and climate politics. If the international community cooperates, we do not need to disentangle cause and effect in more detail than this was done within the UNFCCC (Annex I and non-Annex I countries) already. Moellendorf, for example, argues for an “ability to pay” account in climate change treaties signaling that this duty needs to be taken seriously and that countries have the right to sustainable development. 97 This is exactly how the duty to cooperate in human rights treaties can be understood; those countries that have ratified and have the capacities to implement rights financially and technically support those countries that have ratified but lack capacities to implement. There are many examples illustrating how ideological tensions between the human rights and environmentalist movement do not prevent NGOs or IOs to collaborate and take a hybrid approach rather than insisting on ecocentric or anthropocentric arguments. An interesting case is the inter-constituency alliance at COP 21 in Paris mentioned in the introduction of this article, in which environmental, human rights, youth, gender and indigenous peoples’ groups worked together. Since Bonn 2017, the inter-constituency alliance has been renamed into ‘coalition for rights’ taking even more actors on board and it increasingly makes references to ecosystem integrity as a key principle, together with indigenous peoples rights, food security, public participation, gender equality and just transition, in implementing the Paris agreement. 98 Moreover, human rights have always been further developed in response to current challenges in the world. Thus, they are dynamic and not static. And even though we should not over- expand the human rights catalogue, we should also not hamper developments in response to serious threats. Probably the most significant example for this is the development of international human rights after World War II. Individual rights above the state and independent of nationality at that time were understood to be the foundation for freedom, peace and justice in the world. Facing the severe challenges of climate change today, we will most probably see the human rights evolving from individual civil and political rights to collective intergenerational environmental rights. 21 6. Conclusions In this article, I have tried to link considerations on climate justice with current human rights developments relating to climate change and climate policies. My aim was to show in which way rights developments and pertinent debates can be linked to the normative claims brought forward in considerations on climate justice. This analysis helps to develop a better understanding of the linkage between climate justice and human rights but also how concrete climate justice practices can be shaped through further human rights development and effective enforcement. I have argued that further developing a human right to a healthy environment would be the most encompassing step to address climate injustice. The analysis reveals the following results: Procedural and substantive human rights obligations relating to climate change and climate policies are still evolving. Procedural rights have, for instance, been adopted as institutional safeguards for REDD+ programs in 2010 but their effectiveness in program implementation have not been comprehensively evaluated yet. Further developments in this respect, including safeguards for the CDM or the newly established SDM as well as for green economy policies can be expected. They have the potential to protect particularly vulnerable groups from the adverse effects of climate policies and hence, can advance intra-societal justice. As procedural rights have entered UNFCCC negotiations, prospects of their advancement are particularly high and we can expect further institutional developments in this respect in the short run. ETOs have their origins in the UN Charter in 1945 and gained significant meaning with the adoption of the ICESCR in 1966. By strengthening the duty to international cooperation in the area of economic, social and cultural rights, ETOs bear the potential to foster inter-national justice. By assisting states to fulfill these rights for respective individuals and communities, they also further intra-societal justice. In the face of climatic challenges, ETOs will be advanced through the commentaries of the human rights treaty monitoring bodies, first and foremost the Committee on Economic, Social and Cultural Rights, but also through regional court decisions and case law. This is already relevant today and will receive further attention and changes in human rights soft law in the coming years. An international human right to a healthy environment would be the most encompassing advancement in the global human rights edifice. It would not only promote inter-national and intra-societal but also inter-generational justice by entailing duties to preserve the environment, i.e. water, air and soil, for future generations. 99 There are many sceptics pertinent to the emergence of such a collective human right to a healthy environment and I 22 have discussed a number of counter-arguments above. In November 2017, John Knox has held consultations on draft guidelines on human rights and the environment including procedural and substantive state obligations. These guidelines can be understood as a further important step towards establishing an international human right to a healthy environment. Institutionalization processes of environmental human rights are further progressing and need to be supported to diminish climate injustice. It is important to note that in the face of a changing climate and demands for more climate justice, human rights are changing and developing – from individual civil and political rights to collective intergenerational rights. The systematization of the climate justice literature presented above can also be used as an analytical framework for IR scholars interested in regime complexity 100 , institutional interaction and institutional interplay 101 of climate change with other policy fields, such as human rights, but also development, economics and trade. In this way, climate justice scholarship can be usefully integrated into empirical studies in IR to evaluate institutional and policy developments against normative claims formulated by Political Theorists and Philosophers on how to diminish climate injustices. It has the potential to bring often disconnected debates together and to shape ideas on concrete climate justice practices in a number of policy fields. 23 Endnotes 1 Steven Humphreys, ‘Climate Justice: The Claim of the Past’, Journal of Human Rights and the Environment 5(0), 2014, pp. 134–148. 2 Ludvig Beckman and Edward Page, ‘Perspectives on justice, democracy and global climate change’, Environmental Politics 17(4), 2008, pp. 527-535. 3 Edward Page, Climate Change, Justice and Future Generations, (Cheltenham: Edward Elgar, 2006), p. 50. 4 Humphreys, ‘Climate Justice’, pp. 141-147. 5 Steve Vanderheiden, ‘Justice in the Greenhouse: Climate Change and the Idea of Fairness’, Social Philosophy Today 19, 2004, pp. 89–101. 6 ‘A New Climate Agreement Must Include Human Rights Protections For All’, OHCHR 2014, available at: http://www.ohchr.org/Documents/HRBodies/SP/SP_To_UNFCCC.pdf (accessed 28 February 2017). 7 ‘Promoting the Geneva Pledge for Climate Action’, Human Rights and Climate Change Working Group 2015, available at: http://climaterights.org/our-work/unfccc/geneva-pledge/ (accessed 28 February 2017). 8 ‘Draft Declaration on Human Rights and Climate Change’, available at: http://gnhre.org/wp- content/uploads/2015/11/GNHRE-draft-declaration1.pdf (accessed 28 February 2017). 9 ‘Paris Agreement: Adopted at the 21 st Conference of the Parties’, UNFCCC 2015, available at: http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf (accessed 10 January 2017). 10 The initial ambition of the inter-constituency alliance was to anchor human rights in article two of the operative part which defines the purpose of the Paris agreement. Although this could not be realized, the inter-constituency alliance still considers itself to have substantially contributed to including human rights in the final agreement, although only in the preambulatory clauses. 11 Hans-Peter Schmitz and Kathryn Sikkink, ‘International Human Rights’, in Walter Carlsnaes, Thomas Risse, and Beth A. Simmons (eds) Handbook of International Relations (London: SAGE, 2013), p. 827. 12 Practices are competent performances structuring world politics, giving meaning to international action and interaction by reproducing, changing and reinforcing action and interaction. Thus, climate justice practices can be understood as policy-specific every day activities to diminish climate injustice. Emmanuel Adler and Vincent Pouliot, ‘International Practices’, International Theory 3(1), 2011, pp. 1-36. 13 OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, Office of the High Commissioner for Human Rights, 2009), p.13. 14 Silvia Maus, ‘Hand in Hand against Climate Change: Cultural Human Rights and the Protection of Cultural Heritage’, Cambridge Review of International Affairs 27(4), 2014, pp. 699–716. 15 OHCHR, Report, pp.14–15. 16 James R. May and Erin Daly, Global Environmental Constitutionalism, (Cambridge: Cambridge University Press, 2014). 17 Based on data from: Marcos A. Orellana and Alyssa Johl, Climate Change and Human Rights: A Primer, (Washington: The Center for International Environmental Law, 2013) and supplemented with data from: OHCHR, Report. 18 Jeanette Schade and Wolfgang Obergassel, ‘Human Rights and the Clean Development Mechanism’, Cambridge Review of International Affairs 27(4), 2014, pp. 717–735. 19 Human Rights Watch, There is No Time Left: Climate Change, Environmental Threats, and Human Rights in Turkana County, Kenya, (New York, Human Rights Watch, 2015). 24 20 Eve Bratman, ‘Passive Revolution in the Green Economy: Activism and the Belo Monte Dam’, International Environmental Agreements 15(1), 2015, pp. 61–77. 21 Human Rights Watch, What Will Happen if Hunger Comes? Abuses Against the Indigenous Peoples of Ethiopia’s Lower Omo Valley, (New York: Human Rights Watch, 2012). 22 Beckman and Page, ‘Perspectives on justice’. 23 Humphreys, ‘Climate Justice’. 24 Karen Morrow, ‘Climate Change and Human Rights: The Defining Dilemma of Our Times?’, Journal of Human Rights and the Environment 1(2), 2010, p. 132. 25 Or climate justice in relation to the non-human world. See: Clare Palmer, ‘Does Nature Matter? The Place of the Nonhuman in the Ethics of Climate Change’ in Denis G. Arnold (ed) The Ethics of Global Climate Change (Cambridge: Cambridge University Press, 2011), pp. 272-291. 26 Henry Shue, Climate Justice: Vulnerability and Protection, (Oxford: Oxford University Press, 2014). 27 Moellendorf, Darrel, The Moral Challenge of Dangerous Climate Change: Values, Poverty and Policy, (Cambridge: Cambridge University Press, 2014). 28 Humphreys, ‘Climate Justice’, pp. 141-147. 29 Richard P. Hiskes, The Human Right to a Green Future: Environmental Rights and Intergenerational Justice, (Cambridge: Cambridge University Press, 2009). 30 Paul G. Harris, Alice S.Y. Chow and Rasmus Karlsson, ‘China and Climate Justice: Moving beyond Statism’, International Environmental Agreements 13(3), 2013, pp. 293–301. 31 Peter Newell, ‘Race, Class and the Global Politics of Environmental Inequality’, Global Environmental Politics 5(3), 2005, p. 70 and p. 87. 32 OHCHR, Report, pp. 15–18. 33 These rights are anchored in the 1966 ICCPR and in the 1998 Aarhus Convention. 34 ‘The Cancun Agreements’, available at: http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=2 (accessed 10 January 2017). 35 Richard P. Hiskes, ‘The Right to a Green Future: Human Rights, Environmentalism and Intergenerational Justice’ Human Rights Quarterly 27(4), 2005, pp. 1346–1364. 36 Hiskes, ‘The Right to a Green Future’. 37 Simon Caney, ‘Climate Change, Energy Rights and Equality’ in Denis G. Arnold (ed) The Ethics of Global Climate Change (Cambridge: Cambridge University Press, 2011), pp. 77–103. 38 Shue, Climate Justice. 39 Beckman and Page, ‘Perspectives on justice’. 40 Sigrun Skogly, Beyond National Borders: States’ Human Rights Obligations in International Cooperation (Antwerpen: Intersentia, 2006), p.5. 41 Caroline Mair, The Maastricht Principles and Environmental Law (London: Foundation for International Environmental Law and Development, 2012), p. 3. 42 de Schutter, Olivier et al., ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ Human Rights Quarterly 34(4), 2012, pp. 1091–1104. 43 International Covenant on Economic, Social and Cultural Rights, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (accessed 10 January 2017), Art. 2. 44 John Knox, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (Geneva: Human Rights Council, 2014), p. 18. 45 ‘The Climate Change and Human Rights Petition’ available at: http://www.greenpeace.org/seasia/ph/press/releases/Worlds-largest-carbon-producers-ordered-to-respond-to- 25 allegations-of-human-rights--abuses-from-climate-change/The-Climate-Change-and-Human-Rights-Petition/ (accessed 28 February 2017). 46 Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ Harvard Environmental Law Review 33(2), 2009, pp. 439–476. 47 John Knox, ‘Climate Change and Human Rights Law’ Virginia Journal of International Law 50(1), 2009, p. 208. 48 ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ available at: http://www.ciel.org/wp-content/uploads/2015/05/Maastricht_ETO_Principles_21Oct11.pdf (accessed 10 January 2017). 49 Aarti Gupta, ‘Transparency Under Scrutiny: Information Disclosure in Global Environmental Governance’ Global Environmental Politics 8(2), 2008, pp. 1–7. 50 Gupta, ‘Transparency Under Scrutiny’, p. 3–4. 51 Alan Boyle, ‘Human Rights and the Environment: Where Next?’ European Journal of International Law 23(3), 2012, pp. 622–626. 52 Schade and Obergassel‚‘Human Rights and the Clean Development Mechanism’. 53 ‘Press Statement – In landmark decision, Panama withdraws UN registration for Barro Blanco hydrodam project’, Carbon Market Watch 2016, available at: http://carbonmarketwatch.org/press-statement-in-landmark- decision-panama-withdraws-un-registration-for-barro-blanco-hydrodam-project/ (accessed 28 February). 54 ‘COP 22’, Carbon Market Watch 2016, available at: http://carbonmarketwatch.org/category/climate- negotiations/cop22/ (accessed 28 February 2017). 55 OHCHR, Comments and recommendations of OHCHR regarding the future UNFCC Sustainable Development Mechanism, (Geneva: OHCHR, 2016). 56 Knox, Report of the Independent Expert, p. 9. 57 Roe, Stephanie et al., Safeguards in REDD+ and Forest Carbon Standards: A Review of Social, Environmental and Procedural Standards and Application (Amsterdam, ClimateFocus, 2013). 58 Stephen J. Turner, A Global Environmental Right (Abingdon: Routledge, 2014). 59 OHCHR, Report, p 3. 60 James W. Nickel, ‘The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Justification’, Yale Journal of International Law 18 (1), 1993, pp. 281-295; Tim Hayward, Constitutional Environmental Rights, (Oxford: Oxford University Press, 2005). 61 Knox, ‘Climate Change and Human Rights Law’, pp. 177–178. 62 Stephen Humphreys, ‘Climate Change and International Human Rights Law’ in Rosemary Rayfuse and Shirley V. Scott (eds), International Law in the Era of Climate Change (Cheltenham: Edward Elgar, 2012), pp. 29–57. 63 David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: University of British Columbia Press, 2012). 64 Knox, Report of the Independent Expert, p. 8. 65 Knox, ‘Climate Change and Human Rights Law’, p. 212. 66 John Knox, Draft Guidelines on Human Rights and the Environment (Geneva: Human Rights Council, 2017). 67 ‘Universal Declaration of Human Rights’ available at: http://www.un.org/en/universal-declaration-human- rights/ (accessed 11 January 2017), preamble. 68 ‘COP21: ’States’ human rights obligations encompass climate change’ – UN expert’ available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16836&LangID=E (accessed 21 July 2016). 69 Humphreys, ‘Climate Justice’. 70 ‘COP21: ’States’ human rights obligations encompass climate change’ – UN expert’. 71 COP21: ’States’ human rights obligations encompass climate change’ – UN expert’. 26 72 Hiskes, The Human Right to a Green Future, p. 2. 73 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999), p. 23. 74 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press, 2013. 75 Hiskes, The Human Right to a Green Future, pp. 3–5. 76 ‘Joint Statement: Protection of Human Rights from Climate Change Requires Urgent Shift to 100% Renewable Energy for All’, available at: https://www.amnesty.org/en/documents/pol30/3033/2015/en (accessed 17 June 2016). 77 Schmitz and Sikkink, ‘International Human Rights’, p. 827. 78 de Schutter, Olivier et al., ‘Commentary to the Maastricht Principles’, pp. 1091–1104. 79 ‘Maastricht Principles on Extraterritorial Obligations of States’. 80 OHCHR, Applying a Human Rights-Based Approach to Climate Change Negotiations, Policies and Measures (Geneva: OHCHR, 2010). 81 Xinyuan Dai, ‘The “Compliance Gap” and the Efficacy of International Human Rights Institutions’ in Thomas Risse, Stephen Ropp, and Kathryn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013), p. 85. 82 Risse, Ropp, and Sikkink, The Power of Human Rights, p. 29, p. 33. 83 Kerri Woods, Human Rights and Environmental Sustainability (Cheltenham: Edward Elgar Press, 2010). 84 Dudai, ‘Climate Change and Human Rights Practice’ Journal of Human Rights Practice 1(2), 2009, pp. 294– 307. 85 On indirect or mediated responsibilities see also: Robin Attfield, ‘Mediated Responsibilities, Global Warming and the Scope of Ethics’ Journal of Social Philosophy 40(2), 2009, pp. 225-236. 86 Philip Alston, ‘Conjuring up New Human Rights: a Proposal for Quality Control’ American Journal of International Law 78(3), 1984, pp. 607–621. 87 Dudai, ‘Climate Change and Human Rights Practice’, p. 305. 88 Hiskes, The Human Right to a Green Future. 89 Tim Hayward, ‘Human Rights Versus Emissions Rights: Climate Justice and the Equitable Distribution of Ecological Space’ Ethics and International Affairs 21(4), 2007, pp. 431–450. 90 Dudai, ‘Climate Change and Human Rights Practice’, p. 302. 91 Beckman and Page, ‘Perspectives on justice’, p. 529; for a different perspective see also Kerri Woods, ‘The rights of (future) humans qua humans’ Journal of Human Rights 15(2), 2016, pp.291-306. 92 Dudai, ‘Climate Change and Human Rights Practice’. 93 Hayward, ‘Human Rights Versus Emissions Rights’. 94 Hiskes, The Human Right to a Green Future. 95 Turner, A Global Environmental Right. 96 Risse, Ropp, and Sikkink, The Power of Human Rights. 97 Moellendorf, The Moral Challenge of Climate Change, p.7. 98 CIEL et al., ‘Delivering on the Paris Promises: Combating Climate Change While Protecting Rights’ available at: https://www.deliveringonparis.com/wp-content/uploads/2017/06/Delivering-On-Paris-Web.pdf (accessed 26 November 2017). 99 Hiskes, The Human Right to a Green Future, p. 143. 100 Kenneth W. Abbott, ‘Strengthening the Transnational Regime Complex for Climate Change’ Transnational Environmental Law 3(1), 2014, pp. 57–88; Eero Palmujoki, ‘Fragmentation and Diversification of Climate Change Governance in International Society’ International Relations 27(2), 2013, pp. 180–201. 27 101 Thomas Gehring and Sebastian Oberthür, ‘The Causal Mechanisms of Interaction between International Institutions’ European Journal of International Relations 15(1), 2009, pp. 125–156. 
work_gygdznd5tjgu3mgpsvbqmnvhge	----	The 'third way' and social justice Journal of Political Ideologies (2001), 6(2), 231–235 COMMUNICATION The ‘third way’ and social justice MARCEL WISSENBURG Faculty of Policy Sciences, University of Nijmegen, PO Box 9108, 6500 HK Nijmegen, The Netherlands ABSTRACT In reaction to Steve Buckler’s and David Dolowitz’s earlier contri- bution to this journal, I argue that New Labour’s ‘third way’ cannot be founded on John Rawls’s theory of justice. ‘Third way’ practice contradict s Rawls’s ideas about both redistributiv e justice and social justice in a broader sense. Rawlsian output justice Social democracy was the � rst to emerge out of the ideological ruins of 1989 with a new perspective on a changing world: the ‘third way’. Recently, Steve Buckler and David Dolowitz1 argued that more can be said in defence of New Labour’s ‘third way’ than has been said so far. With this ‘so far’, one can refer both to writings of the British and other ‘third way’ parties’ politicians ,2 and to those of ‘third way’s academic defenders like Miliband and Giddens.3 What all these texts have in common is, after all, that they mix two elements where three would be needed. ‘Third way’ advocates offer analyses of empirical data and normative claims. What is missing is a theoretical foundation justifyin g the passage from is to ought. The thesis Buckler and Dolowitz defend is that John Rawls’s theory of justice may offer such an underpinning , that in fact ‘third way’ principles and policy already re� ect Rawls’s ideas. I shall argue instead that the ‘third way’ as we know it � ts neither the more familiar part of Rawls’s work, the theory of the just distributio n of the bene� ts and burdens of social co-operation (‘output justice’), nor criteria of social justice in a broader sense. In the end, Buckler, Dolowitz and I might very well agree that the ‘third way’ is an approximation of Rawls’s theory. Yet for now I believe that the principles of the ‘third way’ need serious revision before there can be any talk of an equilibrium between the philosoph y of social justice and the practices of the ‘third way’. One reason for Buckler and Dolowitz to believe in a convergence between Rawls and the ‘third way’ is that the latter would re� ect Rawls’s conviction that there is an irresolvable disagreement on the de� nition of the good.4 This brought Rawls to the conclusion that a theory of social justice needs to be founded on ISSN 1356-931 7 print; 1469-9613 online/01/020231–05 Ó 2001 Taylor & Francis Ltd DOI: 10.1080 /1356931012005387 6 MARCEL WISSENBURG an impartial conception of the right. It is true that we � nd, for instance, Blair and Schröder saying similar things—that governments cannot and should not pre- scribe what kinds of lives people should lead and what kinds of things they should value. Yet the practice of the ‘third way’ deviates considerably from the promise, as I hope to show when I reach my fourth point. A second indication of convergence would lie in the Rawlsian Difference Principle, which Buckler and Dolowitz reformulate as ‘the arranging of social and economic inequalitie s such that they are to the bene� t of all under condition s of fair equality of opportunity ’. The test for whether inequality bene� ts all is that the social system ‘must enhance the long-term interests of the least well off groups in society’.5 This description certainly � ts Blair’s and Schröder’s belief that perfect equality is not a desirable objective for the ‘third way’; we should accept that some inequality is justi� ed.6 But the description does not � t Rawls: Rawls’s true position on inequality is one of ‘equality unless’, not ‘inequality so that’: ‘… there are conceptions of justice that are recognizably egalitarian, even though certain signi� cant disparities are permitted. The two principle s of justice fall, I assume, under this heading’.7 Buckler and Dolowitz go so far as to claim that Rawls accepts inequality because it contributes ‘to ef� cient wealth creation in a system where the prospects of all are potentiall y enhanced’,8 which may be or may not be empirically true for a ‘third way’ society. However, for Rawls ef� ciency and justice are distinct desiderata :9 a slave society where freedom is ‘potentially ’ attainable can be perfectly ef� cient but will never be just. In addition, Rawls rejects the notion of desert or merit as a basis for the unequal distributio n of (say) income: it betrays an inadmissible partiality to a particular theory of the good.10 Thirdly, Buckler and Dolowitz claim that Rawls is concerned about proce- dures not outcomes: unlike many theories of social justice, his does not call for an equal distributio n of the bene� ts and burdens of social co-operation, or for a distributio n mechanism that satis� es some other criterion for a just state of affairs, an outcome. What matters for Rawls is that his two principles are followed, ‘whatever [the] outcome happens to be’.11 The result may be equality one day, inequality the next. Again, this re� ects Schröder’s and Blair’s idea that equality of outcome is not intrinsicall y valuable but disregards people’s efforts. And again, it does not re� ect Rawls. Apart from rejecting desert, Rawls does care about outcomes: the point about the Difference Principle is that it should be applied so as to bring the worst off as close to equality as possible. For Rawls, there can be no justi� cation for social inequality in itself: inequality is the result of systems and institution s that differently reward people on the basis of their natural or social differences, differences which are (in accordance with the is-does-not-imply-ough t rule) morally indifferent. Rawls’s commitment to out- comes also becomes clear in his brief discussio n of Amartya Sen’s suggestio n to replace primary social goods as a distributio n criterion by ‘basic capabilities ’, i.e., by what individual s in their particular situations can actually do with their primary social goods. Rawls rejects Sen’s suggestion , not because outcomes do not matter but because Sen’s criterion is impractical.12 232 THE ‘THIRD WAY’ AND SOCIAL JUSTICE Fourthly, Rawls and the ‘third way’ would converge in applying the Differ- ence Principle to opportunities.13 Yet even if ‘opportunities ’ and ‘primary social goods’ were interchangeable (which they are not), Rawls’s opportunitie s are not those of Blair and Schröder. In ‘third way’ practice, opportunitie s are opportuni - ties for self-suf� ciency given a free market society, which comes down to creating incentives for � nding work and for becoming � exible workers able even to take jobs they would not dream of desiring—and to creating disincentive s for those who will not co-operate. Think of the British New Deal programmes established to ‘cater to the needs of [disadvantaged] groups by offering them packages of support and advice designed to ensure that they are aware of and can take advantage of employment opportunitie s where appropriate’.14 All this deviates from Rawls’s theory in two respects: it lacks impartiality with regard to the individuals ’ theories of the good (forcing them to subject to the dictates of the labour market), and it takes the present free market society for granted, whereas Rawls sees it as one possible context for social justice among many. Finally, Buckler and Dolowitz point out that in providing opportunities , the ‘third way’ wishes to pay special attention to ‘groups that are […] marginalized due to arbitrary factors’.15 This could be interpreted as a re� ection of Rawls’s principle of Fair Equality of Opportunity , but looks are deceiving. As we have just seen, the ‘third way’ de� nes equal opportunit y not as equal opportunit y to attain a particular position or not try at all (thus respecting the individual ’s theory of the good and plan of life), but as an equal opportunity to attain any position the labour market cares to offer and no other. Social justice Social justice is more than distributiv e output justice: it also relates to the input side, i.e., the distributio n of access to the creation of the bene� ts and burdens of social co-operation (hence fair equality of opportunity) , and to commutative justice, i.e., justice among individuals .16 Although Buckler and Dolowitz do not discuss them, it is worthwhile noting that ‘third way’ theory and practice cannot meet standards for these aspects of social justice either. First of all, the ‘third way’ disregards justice in the input sphere. One of the most distinguishin g features of socialism and social democracy used to be that they questioned the existing system or mode of production ; the ‘third way’, however, lets supply rule. It is as if the ‘third way’ has thrown away the baby with the bath water: in relinquishin g its resistance to market mechanisms, it has also abandoned its objections to capitalisti c ownership relations and to the expression of uncritical, potentiall y harmful preferences that market mechanisms thrive on. On the one hand, employers continue to rule the labour market and dictate which jobs are offered, which qualities are desired, and by implication which human beings are useful; on the other, producers dictate which products are offered and are considered desirable or valuable. The ‘third way’s’ interpret- ation of ‘opportunities ’ in the � eld of labour relations at the very least fails to encourage, but probably directly discourages, the development and expression of 233 MARCEL WISSENBURG plans of life and theories of the good that deviate from the ideal of the useful drone. In this respect, the ‘third way’ silences social, political and moral critique before it can even be expressed. A second problem is that the ‘third way’, in the sphere of output social justice and particularly in the � eld of labour, fails to guarantee distributiv e justice as such. Justice is a remedial virtue, a virtue for an imperfect world of scarcity and egoism.17 With its interpretatio n of social justice as attainable by commutative means, the ‘third way’ offers this remedial virtue to the ideal participant in market procedures: self-suf� cient, self-conscious , responsible individuals . Jus- tice is meted out in the market place, and (ideally) given to those who qualify for the criteria of the market place: those who work harder or perform better receive more than those who do not. Obviously, without further remedial measures this would lead to the exclusion of those who do not qualify: the lazy, politicall y motivated defectors, and people who cannot qualify as easily. The last category consists of all those parties for whom the redistributiv e welfare state was invented in the � rst place. In other words, it is still up to old welfare state institution s to deal with these sources of injustice, not the new institution s introduced (and given political priority) by the ‘third way’. Thirdly, the ‘third way’ embraces the market without warranting commutative justice. Ideally, following Aristotle, the market is a place where free and (therefore) equally powerful individuals meet and voluntarily exchange goods (or anything else). In real life in modern society, supply and demand are seldom equally powerful, and therefore seldom in equal negotiatin g positions . In purely formal terms, a market is just when both parties receive what in their individua l eyes is the equivalent of what they gave. Given unequal starting positions , the more powerful party is by de� nition capable of dictating what is on offer on the market, and of raising the price of its product. A � nal reason to question the possibilit y of reconciling the ‘third way’ with social justice is that by refusing to create a completely free market, ‘third way’ politics contradicts its own commitment to moral pluralism and to a reduction of state interference in civil society. This objection relates in particular to the privatisatio n of public services practised in ‘third way’ countries: it is usually the institution providing the service that is privatised, not the product itself. Citizens are still legally obliged to insure themselves against illness, unemployment, old age, and so on—nowadays, they just have to get it elsewhere than at a government agency, and they can (usually) choose between (hopefully) compet- ing social security providers or job mediators. Citizens may not be legally obliged to use electricity, water and gas, garbage disposal, telephone, television, radio and public transport, yet in practice most of these early twentieth-centur y luxuries have become unavoidable basic needs for virtually every twenty-� rst century European. As long as there is demand for a product, supplyin g it can be pro� table; as long as there is no alternative to the product, the market for it is safe. Obviously, obliging citizens to consume services, or not enabling them to consume alternatives, matches with the ‘third way’ intention of keeping the 234 THE ‘THIRD WAY’ AND SOCIAL JUSTICE welfare state alive at lower costs (in public spending, though not necessarily from the point of view of the individua l citizen’s wallet). But it does not match with the idea of a free market, nor with the intention of offering ‘opportunities ’ (in the broad sense), of moving away from a paternalisti c prescription of the terms of a good life towards an impartial respect for the existence of a plurality of life-styles and theories of the good. Thus, there appear to be limits to the degree to which the ‘third way’ is willing to grant responsibilit y to individuals . What is more, the ‘third way’s’ privatisatio n strategy does not result in a reduction of government interference in civil society. By obliging citizens to consume certain services, they also take on a duty to see to it that these services are provided at affordable prices. Hence, they still have to control and regulate the market for public services. The ‘third way’ unlocked a potential source of support for the welfare state never thought of before, at a moment when it was needed more than ever before. As an alternative to the increasing oppositio n between the public and private spheres, between state and free enterprise, it proved that there could be business and pro� t in supplyin g public services. But everything has a price. Rather than obliterating the worst of socialism and replacing it by the best of liberalism , it seems that as far as social justice is concerned, the ‘third way’ has replaced the best part of socialism , distributiv e justice, by the worst part of liberalism , the survival of the � ttest. Acknowledgements The author is grateful to Michael Freeden and two anonymous referees of this journal, to Kees van Kersbergen, Grahame Lock, and Anna van der Vleuten at the Faculty of Policy Sciences, and to members of the Chinese Academy of Social Sciences, for their most helpful comments. Notes and references 1. S. Buckler and D. Dolowitz, ‘Theorizing the third way: New Labour and social justice’, Journal of Political Ideologies, 5/3 (2000), pp. 301–320. 2. A. Blair and G. Schröder, Europe: The Third Way/Die Neue Mitte (www.labour.org.uk , 1999). 3. A. Giddens, The Third Way (Cambridge: Polity Press, 1998); A. Giddens, The Third Way and its Critics (Cambridge: Polity Press, 2000). 4. Buckler and Dolowitz, op. cit., Ref. 1, p. 305. 5. Buckler and Dolowitz, ibid., p. 307. 6. Blair and Schröder, op. cit., Ref. 2. 7. J. B. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 538. 8. Buckler and Dolowitz, op. cit., Ref. 1, p. 309. 9. Rawls, op. cit., Ref. 7, p. 9. 10. Rawls, ibid., p. 103. 11. Buckler and Dolowitz, op. cit., Ref. 1, p. 308. 12. J. B. Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), p. 13. 13. Buckler and Dolowitz, op. cit., Ref. 1, pp. 309, 311. 14. Buckler and Dolowitz, ibid., p. 313. 15. Buckler and Dolowitz, ibid., pp. 310–311. 16. Cf. Rawls, op. cit., Ref. 7, p. 108. 17. M. Wissenburg, Imperfection and Impartiality (London: UCL Press, 1999). 235 
work_gzuyb2jfk5av7haxtga32aud4e	----	HARAMAYA LAW REVIEW Vol. 6 (2017) ISSN: 2227-2178 (P) & 2305-3739 (E) [29] To cite this article: Aberra Degefa Nagawo, Beyond the Individualization of Punishment: Reflections on the Borana Oromo’s Collective Criminal Responsibility, HARAMAYA LAW REVIEW 6 (2017): 29-42 ____________________ BEYOND THE INDIVIDUALIZATION OF PUNISHMENT: REFLECTIONS ON THE BORANA OROMO’S COLLECTIVE CRIMINAL RESPONSIBILITY Aberra Degefa Nagawo Abstract The article mainly looks at the role collective responsibility plays in the prevention of crime among the Borana Oromo of Ethiopia. Borana is a clan-based society where every member of a clan enjoys privileges and is given protection by his (her) clan. The clan provides support to its member when it is needed, and assumes responsibility when a member commits crime. If a member of a clan commits homicide, Guma is paid by the perpetrator’s clan to the clan from which a member has been killed. The objective of this article is to examine the underlying philosophy for the principle of collective responsibility and the merits of the principle in preventing crime among the Borana. The philosophy differs from that of the formal criminal justice system, where crime is individualized and the individual is answerable for the crime he commits. The article is based on the interviews the author has made from 2012-2014 with Borana elders during fieldwork to the area and review of the relevant literature. As it is part of the cultural values of the society and suitable for the clan- based and pastoralist Borana society, the practice of collective responsibility cannot easily be dismissed by forcibly imposing individual responsibility. Keywords: Borana, clan, collective responsibility, crime, Guma I. INTRODUCTION Social norms and disputes are as old as human society. Every human society has norms which regulates relations of its members. Long before the emergence of the modern state and its formal justice system, human society had normative rules, procedures and institutions through which they resolved all their disputes. In the process of resolving disputes, the main parties involved were the disputants and the community within which wrongs have been committed. Previously, states had no role in settlement of disputes including crime. Dispute settlement was the property of the society which the state has stolen at a certain point in human history.1  Aberra Degefa (PhD) is an Assistant Professor at School of Law, Addis Ababa University. He has LLB, LLM and PhD from Addis Ababa University. He has Post-Graduate Diploma from ISS, The Hague. His areas of research interest include Constitutional law, Legal Pluralism and Indigenous Justice System. 1 Nill Christie, Conflicts as Property, 17(1) BRITISH JOURNAL OF CRIMINOLOGY (1977) 1-15. 30 HARAMAYA LAW REVIEW [Vol. 6:2017] With the emergence of the modern state and its formal criminal justice system, the stakeholders lost their control over the justice process and the outcome. Under the formal state criminal justice system, the earlier authority and roles of the society in the settlements of criminal dispute disappeared and replaced by the state. But even if states have taken the monopoly of settling criminal disputes, in significant parts of the world, some indigenous societies have continued to settle their own disputes informally based on their own customary laws.2 In many parts of Africa and the world, these informal justice systems and their corresponding dispute resolution processes are still operating along the formal justice systems.3 The norms regulating the dispute processes are rooted in the communal values of the people. When a certain wrong is committed, it is not only personal relationship but also community harmony that is disrupted.4 For this reason, dispute resolution aims at restoring the communal relationships disrupted by the wrongful act.5 As religion, law and culture are interwoven, it is quite difficult to separately look at the law.6 In order to know the African approach to criminal dispute resolution system, one needs to understand the peoples’ worldview and the social setting within which each African society is placed and interact. Worldview is described as “mental lenses that are entrenched ways of perceiving the world.”7 African people have their own indigenous worldviews that shape their perception of the world and human relationships. What gave rise to these indigenous worldviews are their close relationships and interactions with their environment. Since the assumptions, decisions and modes of problem solving in a given society are influenced by their worldviews, any study concerning a community would require proper understanding of the target community’s worldview.8 Without proper understanding of the worldview of a certain people, the judgment we make about the practices among a certain people will not be sound. African indigenous worldviews are holistic, local and oral in their characteristics. Africans view knowledge itself as holistic, cyclic, and dependent upon relationships and connections to living and non-living beings and entities.9 In many indigenous communities, harmony and peace are looked at not only as harmony between human beings but it extends to harmony with nature. In Africa, family ties, kinship relation and community networking are constantly respected, 2 Ewa Wojkowska, Doing Justice: How Informal justice can Contribute, UNDP-Oslo, Governance Centre, 2006. 3 PENAL REFORM INTERNATIONAL, ACCESS TO JUSTICE IN SUB SAHARAN AFRICA: THE ROLE OF TRADITIONAL AND INFORMAL JUSTICE SYSTEMS, London. Astron Printers (2000). 4 H Driberg, The African Conception of law, JOURNAL OF COMPARATIVE LEGISLATION AND INTERNATIONAL LAW, Third Series 16(4) (1934) Retrieved on November 10, 2014 from http://www.jstor.org/stable/753856 5 R.B.G. Choudree, Traditions of Conflict Resolution in South Africa, AFRICA JOURNAL ON CONFLICT RESOLUTION, 1:1 (1999). 6 L. A. Ayinia, African Philosophy of Law: A Critique, 6 JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, 147 (2002) 7 Michael Anthony Hart, Indigenous Worlds Views, Knowledge and research: The Development of an Indigenous research paradigm, JOURNAL OF INDIGENOUS VOICES IN SOCIAL WORK, 1(1) 2010, at 2. 8 Idowu William, Against the Sceptical argument and the absence thesis: African Jurisprudence and the Challenges of Positivist Historiography, THE JOURNAL OF PHILOSOPHY, SCIENCE & LAW, 6(2): 9-24 (2006). 9 Carol A. Hand, Judith Hunks & Toni House. Restorative Justice: The Indigenous justice system, CONTEMPORARY JUSTICE REVIEW: ISSUES IN CRIMINAL, SOCIAL, AND RESTORATIVE JUSTICE, 15(4) 449-467 (2012), DOI:10.1080/10282580.2012.734576. http://www.jstor.org/stable/753856 Aberra, INDIVIDUALIZATION OF PUNISHMENT 31 maintained and strengthened. This strong belief in collectiveness is an indication of the centrality of communal life with emphasis on interconnectedness and relationships.10 The attitude of togetherness and the spirit of humanity are universal values embedded in African indigenous worldviews. As stated by Steve Biko, We [Africans] regard our living together not as an unfortunate mishap warranting endless competition among us but as a deliberate act of God to make us a community of brothers and sisters jointly involved in the quest for a composite answer to the varied problems of life. Hence, in all we do, we always place man first and hence all our action is usually joint or community-oriented action rather than the individualism which is the hallmark of capitalist approach.11 According to Biko, rather than self-centered individual competition, what governs traditional African way of life is collectiveness and spirit of harmony. In their daily interactions and relationships, Africans are guided by their indigenous norms and values which is an integral part of their worldviews. Belief in consensus, dialogue, inclusion, reciprocity, fairness and mutual trust are the core values of African societies.12 In most traditional African societies, social relationships and harmony are given prime attention. A criminal dispute settlement process usually involves relatives of the victim, the offender and the community. The immediate objective of a criminal dispute resolution is to mend the broken or damaged relationship and repair wrongs, and restore community harmony. In Ethiopia itself, there are societies with their own indigenous justice systems settling disputes based on their own customary laws. Borana Oromo is one such society where disputes including criminal disputes are settled by indigenous justice system.13 The Borana have their indigenous dispute resolution system which is operating along the formal justice system without formal recognition. This has given rise to the co-existence of two competing justice systems. Because of lack of recognition and defined relationship, the two systems have uneasy relationship which is having its own impact on the people of the area. Under Borana indigenous justice system, clan members are collectively liable for the harm one of their members caused to a victim by way of paying Gumaa which is made in the forms of heads of cattle or sum of money. Among the Borana what applies is the principle of collective responsibility which is opposed to the dominant Western principle of criminal justice which makes only the individual offender responsible for a crime. When looked at from the viewpoint of the formal criminal justice system, the principle applied among the Borana is considered collective punishment for a crime committed by an 10 A Melton ‘Indigenous justice systems and Tribal society’, Accessed 29th April 2011 from http://aidainc.net/Publications/ij_systems.htm 11 STEVE BIKO, I WRITE WHAT I LIKE: A SELECTION OF HIS WRITINGS, Heinemann (1987), at 42. 12 J.H. Driberg, The African Conception of Law, JOURNAL OF COMPARATIVE LEGISLATION AND INTERNATIONAL LAW, 16(4) 230-245 (1934) available at http://www.jstor.org/stable/753856; Ada Pecos Melton, Indigenous Justice Systems and Tribal Society, in WANDA D. MCCASLIN, ED., JUSTICE AS HEALING: INDIGENOUS WAYS. WRITINGS ON COMMUNITY PEACE-MAKING AND RESTORATIVE JUSTICE FROM THE NATIVE LAW CENTRE. St. Paul, MN: Living Justice Press. (2005), at 108-120. 13 ALULA PANKHURST & GETACHEW ASEFFA (EDS) GRASS ROOTS JUSTICE IN ETHIOPIA: THE CONTRIBUTION OF CUSTOMARY DISPUTE RESOLUTION, Addis Ababa, French Center of Ethiopian Studies, (2008). http://aidainc.net/Publications/ij_systems.htm 32 HARAMAYA LAW REVIEW [Vol. 6:2017] individual. Rules, institutions and systems in different societies are created by the particular societies to address their own specific problems. If such systems are user-friendly and responsive to the needs of the particular people, imposing an alien system would harm the society. This article aims at exploring the merits of the principle of collective criminal responsibility which is being used among the Borana in the context of Borana society. It tries to investigate how this system has helped in preventing crime within the Borana social setting. To meet its aim, the study is conducted based on qualitative data gathered from Borana elders during the author’s PhD field work between 2012 to 2014. The data were gathered through interviews and focus group discussions with Borana elders. In addition, interviews were conducted with individuals in the justice sector, prisoners and victims of crime. Further information was also gathered by consulting the relevant literature to deal with the merits of collective criminal responsibility as it is being practiced among the Borana. The remaining parts of the article are organized as follows. Section II looks at Borana indigenous worldview and how the indigenous justice system works. The principle of collective criminal responsibility as applied among the Borana is presented under Section III. Finally, section IV provides conclusion and remarks on the subject. II. BORANA WORLDVIEW AND INDIGENOUS JUSTICE SYSTEM Borana is located in the southern part of Ethiopia in Oromia National Regional State. Although, Borana is one of the administrative zones of the National Regional State of Oromia, Borana people also inhabit other neighboring zones of the region. While Borana and Guji Oromo constitute the majority in the zone, other minorities include the Gabra, Burji and Garri.14 Borana people are largely pastoral where the livelihood of the people is based on pastoralism. In Borana social system, the entire society is divided into two exogamous moieties known as Sabo and Gona. The two moieties are further subdivided into clans and sub-clans. Among the Borana, clans share collective rights and obligations. Clan members settle their disputes peacefully at clan assemblies and help one another in times of hardship. The clan elders (hayyus) have the responsibility of settling disputes and imposing sanctions on those who commit wrongful act.15 A. Borana Oromo Worldview Without proper understanding of Borana worldview that shapes the entire Borana way of life and their interactions with one another and the natural world, it is difficult to understand their philosophy as applied to problem of crime and its consequences. The defining feature of Borana worldview is harmony and solidarity between human beings, nature and God. Among the Oromo in general, there is a strong belief that human beings and the natural environment are interconnected and live together in a relationship of harmony. As they believe in the reciprocal relationships and interdependence between human beings and nature, the Borana Oromo give high respect for the cosmic order put in place by Waaqa (God). They take care of all forms of 14 TOM LEUS & CYNTHIA SALVADORI, AADAA BOORANA: A DICTIONARY OF OROMO CULTURE, Addis Ababa Shama Books, (2006) 15 MARCO BASSI, DECISION IN THE SHADE, POLITICAL AND JUDICIAL PROCESSES AMONG THE OROMO-BORANA. Asmara: The Red Sea Press, 2005. Aberra, INDIVIDUALIZATION OF PUNISHMENT 33 life; they never mistreat any form of life.16 The indigenous religion of the Oromo is known as Waaqeffanna. This indigenous Oromo religion is centered around Waaqa, who among the Oromo is considered the Creator of the universe and the sustainer of all life on earth.17 According to Oromo holistic view of cosmic order, Waaqa has placed everything in a well- balanced order. In their view, it is only by being in harmony with each other and with nature that they get the blessing of Waaqa. They all believe that any human act that disturbs the cosmic and social order is an infringement of the laws of Waaqa which would bring danger to the wrongdoer, his relatives and the community. In the context of human relationship, Oromo holistic view plays significant role in maintaining social peace and harmony. In giving recognition to interconnectedness of lives of human beings, the worldview establishes a necessary check and balance to human relations.18 In terms of regulating human relationships, an important moral value that is an integral part of Oromo worldview is the concept of safuu (moral rules). Safuu is a moral standard that is based on Oromo notions of distance and respect for all things. It is a standard which helps to judge social taboo and deplorable habits.19 The moral and ethical obligations embodied in safuu are guides for the respect of the creator and all creatures (Uuma and Uumama). Human actions or inactions are founded on safuu which directs everyone on the right path. The underlying philosophy of safuu is that everything has a role to play and natural right to exist. Oromo understanding of what is wrong and right in human interactions is drawn from their holistic and relational worldview.20 The ways they deal with problems are also shaped by the same relational worldview. One very strong moral bond that unites the Borana is the concept of Boorantitti reflected in “peaceful well–being, unselfishness and respect for a common law.”21 In Borana social life, “the ideology of Boorantitti demands that all conflicts between Borana should be solved peacefully and the maintenance of internal peace is a strongly expressed ideal.”22 Every Borana grows up with full awareness of the supreme value of the ideology of Boorantittii and nagaa Boorana. Nagaa Boorana is the governing philosophy of Borana social relations. Nagaa Boorana refers to the orderly running of all relations, interactions and the non-violent settlement of disputes and conflict while Boorantittii refers to the feeling of commonality each Borana will have for one 16 Workneh Qalbessa, Traditional Oromo Studies towards the Environment: an Argument for Environmentally Sound development, SOCIAL SCIENCE RESEARCH REPORT SERIES, number 19. Addis Ababa: OSSREA (2001). 17 LAMBERT BARTELS, OROMO RELIGION: MYTHS AND RITES OF THE WESTERN OROMO OF ETHIOPIA, Berlin, 1983 18 Id. 19 Gemechu Megerssa, The Oromo Worldview, JOURNAL OF OROMO STUDIES 12 (1&2) 68-79, 2005 20 Dejene Gemechu, Conflict and Conflict Resolution Among the Woliso Oromo of eastern Macha, with particular emphasis on the Guma, Addis Ababa, United Printers (2007) 21 Gufu Oba, Shifting Identities along Resource Borders: Becoming and continuing to be Borana Oromo in P.T.W BAXTER, J HULTIN, AND TRIULZI (EDS.), BEING AND BECOMING OROMO: HISTORICAL AND ANTHROPOLOGICAL ENQUIRIES, 117-132, Asmara: Red sea Press, (1996) at 120. The Borana common law is their Aada Seera which is the embodiment of all their laws. 22 Johan Helland, Institutional Erosion in the Dry Lands: The Case of the Borana Pastoralists, EASTERN AFRICA SOCIAL SCIENCE RESEARCH REVIEW (EASSREA), 14(2): 49-73, (1998) at 64. 34 HARAMAYA LAW REVIEW [Vol. 6:2017] another. The maintenance of nagaa Boorana is the core value that guides the actions of both the spiritual and political institutions in Borana.23 The duty of Abba Gadaa and clan elders (hayyus) at every level is to maintain peace and harmony among the Borana. 24 Nagaa is a pervasive and sustained concern in the daily life of every Borana and the daily blessings given by Borana elders are prayers of peace.25 Borana conception of peace is holistic, relational and collective. Relationships of harmony among members and with the environment are central features in Borana conception of peace and justice. Among the Borana, peace is viewed as a collective value and disruption of this value will have collective harm. The Borana believe that a certain wrongful act disrupts the social harmony within a community. In their view, re-establishment of the disrupted peace would require collective response.26 The Borana view their Waaqa as the source and guardian of peace and truth. When a wrong- doer violates Borana aada-seera, he does not only disrupt nagaa Boorana which is extremely valued by the Borana as a community, but he would also offend Waaqa who is the God of peace (Waaqa mufachiise).27 The totality of Borana normative system is known as aada-seera referring to a sacred and profane set of laws governing behavior and maintenance of peace and order in Borana society.28 Every Borana comes to know and understands aada-seera through his daily experience as a way of life.29 A wrong-doer faces not only public condemnation but also possible punishment of Waaqa. This fear of possible condemnation of the community and Waaqa’s punishment has helped to curb crime among the Borana. The Borana have developed strong moral standards which helped them cultivate and maintain the ideology of Boorantittii and regulate their behavior towards one another. As an individual, in the daily interactions, every Borana should refrain from saying words that spoil relationships with others. The common saying among the Borana is, “nageenyi fuula arrabnni abba oole oolti.”30 This literally means ‘peace follows our tongue’: what we verbally express during our daily interactions with others. If a person makes a statement or utters a word that spoils relationship with others in the daily interaction, it will disrupt harmony. B. Borana Indigenous Justice System The Borana have an indigenous governance system known as Gada. The system is an all- embracing governance system which has been regulating the political, legal, juridical and 23 ASMAROM LEGESSE, OROMO DEMOCRACY: AN INDIGENOUS AFRICAN POLITICAL SYSTEM, Red Sea Press, Asmara (2000). 24 Borbor Bule, Interview made in Aug 1, 2013. 25 Every assembly begins and ends with blessings and prayer of peace. I have observed this during the 40th Gumii Gaayyo Assembly in 2012. 26 BASSI, supra note 15. 27 Borbor Bule, Interview made August 1, 2013 28 E. Watson, Interinstitutional alliances and Conflicts in natural resources management: Preliminary Research findings from Borana, Oromia Region, Ethiopia, Marena research Project Working Paper no 4 (2001). 29 There are clan elders or Hayyus who know all the laws. Besides, most of these laws are discussed every eight years on the Gumii Gaayyo where every participant has the opportunity to know them. Surely, it is also through intergenerational transference of knowledge. 30 Jaatanii Diida, Interview made July 30, 2013. Aberra, INDIVIDUALIZATION OF PUNISHMENT 35 economic aspects of the Borana people.31 Gada is an age-grade class system that succeeds each other every eight years in assuming economic, political and social responsibilities. One age-set rules for eight years before handing over to the next younger age-set. A complete Gada cycle consists of five age-grades. The roles and rules attached to the age-grade system is the most important element that regulates Gada system. Borana Gada governance system is built in such a way as to enable all members of the society to learn and to carry out their duties at different stages of their lives and careers.32 Gada system has strong institutional structure with linkages from the Abba Gada at the top, down to the village levels. The Abba Gada is elected from one of the two Borana moieties with his team of advisors. The governing power under Borana Gada system is decentralized and vested in the assemblies at various levels. At the apex of all the assemblies is Gumii Gaayyo which is a pan–Borana assembly drawn from representatives of all Borana clans. Gumii refers to the general assembly and Gaayyo to the place where the assembly gathers. The assembly takes place every eight years mid-point within one Gada period. Gumii Gaayyo has supreme authority on all important matters like lawmaking and enforcement. Every eight years, the Gumii proclaims new laws, amend the old ones, and evaluate the Abba Gada. As a supreme judicial body, the Gumii resolves disputes referred to it which could not be resolved at lower levels. No other Borana authority can reverse decisions made by Gumii Gaayyo. Borana people have indigenous laws known as aada seera (customary laws). These laws are made by Gumi Gaayyo and amended by the same body. The executive authority in Borana is entrusted to Adulaa Council elders who are six in number. Three each are drawn from Sabo and Gona moieties. As a legitimate leadership of the Borana, the Adulaa Council is responsible for upholding nagaa and aada (peace and custom) of Borana. The Adulaa Council administers all Borana affairs based on laws and customs of Borana aada seera, which is made and modified only by Gumii Gaayyo. The Abba Gada heads the Adulaa Council and with his team of council members, he is responsible for the eight year period.33 Like most African societies, the same collectivist and holistic worldview is prevalent among the Borana Oromo of Ethiopia. Oromo indigenous worldview is an expression of Oromo values and their perception of the world. Oromo worldview is holistic and collectivist in its approach to social problems and ways of solving these problems. The Borana conception of peace (nagaa) goes beyond harmony between human beings and extends to harmony with nature. Their collectivist approach to problem of crime has been shaped by their holistic and collectivist worldview. This collective approach of the Borana has evolved from their local experiences and is part of their indigenous knowledge systems which makes it more suitable in addressing local problems including crimes. 31 ASMAROM LEGESSE, GADA: THREE APPROACHES TO THE STUDY OF AFRICAN SOCIETY. London: The Free Press, (1973). 32 BASSI, supra note 15. 33 E. Watson, Interinstitutional alliances and conflicts in natural resources management: Preliminary research findings from Borana, Oromia Region, Ethiopia Maren research Project Working Paper no 4 (2001) 36 HARAMAYA LAW REVIEW [Vol. 6:2017] The Borana have their indigenous dispute resolution system which is operating along the formal justice system without formal recognition. This has given rise to the co-existence of two competing justice systems. Because of lack of recognition and defined relationship, the two systems have uneasy relationship which is having its own impact on the people of the area. Under Borana indigenous justice system, clan members are collectively liable for the harm one of their members caused to a victim by way of paying Gumaa which is made in the forms of heads of cattle or sum of money. Among the Borana what applies is the principle of collective responsibility which is opposed to the dominant Western principle of criminal justice which makes only the individual offender responsible for a crime. When looked at from the viewpoint of the formal criminal justice system, the principle applied among the Borana is considered collective punishment for a crime committed by an individual. Rules, institutions and systems in different societies are created by the particular societies to address their own specific problems. If such systems are user-friendly and responsive to the needs of the particular people, imposing an alien system would harm the society. This article will try to show the relevance of this principle still being used among the Borana in their specific setting. Borana indigenous justice system embraces the laws and institutions which serve as a framework for settlement of all disputes.34 The Oromo Gada system ascribes great value to the rule of law. Under Oromo indigenous Gada democracy, since law is considered supreme, no one is above the law. The Borana say “Seerri laafaaf kaa’an jabaa hinhaanqatu” which in short means ‘everyone is equal before the law’.35 In their long history of self- administration, one important value that has been maintained by the Borana is respect for the rule of law. According to Asmarom Legesse “the Oromo are one of the most orderly legalistic societies in black Africa and many of their laws are consciously crafted rules, not customarily evolved habits.”36 There is a strong belief among the Borana that any act that disrupts Borana interconnectedness and harmony poses a danger to nagaa Boorana and erode the ideology of Boorantitti.37 Borana indigenous justice system has indigenous dispute resolution mechanism and institutions of justice and reconciliation that are operating and coexist along the formal Ethiopian criminal justice system. Since the formal justice system has exclusive authority over criminal matters, Borana indigenous justice system handles criminal cases without formal recognition. The Borana have effective indigenous laws for the use of common range resources like wells and pasture.38 The Oromo in general strongly believe that social justice and equal benefit from natural resources cannot be maintained in the absence of rule of law.39 34 Like in other indigenous African societies, Borana laws don’t have classification into criminal and civil laws. 35 Badajaa Waariyoo, Interview made July 28, 2013. 36 Asmarom, supra note 23, at 29. 37 Kanu Jilo, Interview made on July 31, 2013. 38 BASSI, supra note 15. 39 DIRRIBI DEMISSIE, OROMO WISDOM IN BLACK CIVILISATION, Finfinnee Print. & Pub. Finfinne (Addis Ababa) 2011. Aberra, INDIVIDUALIZATION OF PUNISHMENT 37 The main objective of Borana indigenous justice system is to ensure nagaa Boorana through effective regulation of relations among the people.40 The social harmony and collective identity of Borana people is ensured by their aadaa-Seera. Since litigation is detested, disputes are rare among the Borana.41 Besides, in view of the fact that every day greetings constitute a form of preaching peace, a “sustained feud between groups or individuals is unacceptable” in Oromo society.42 According to the interviews with the justice officers of Borana Zone drawn from the judiciary, public prosecutors, police and prison and corrective centers, disputes and crimes were frequent around urban areas like Yaballo, Moyale, Bule Hora and the highland areas where there is farming.43 The Borana are socially tied together by kinship relations in that everyone is connected to one of the Borana clans by which he identifies himself. How the Borana behave and address their problems is determined by the kinship relationship and interconnected nature of the society. In view of the fact that Borana people are largely pastoral and significant resources are collectively used, the clan system serves as an important structure through which wealth distribution among clan members is made. Important communal activities of clans include digging, maintenance and regulation of wells and other sources of water. Clans also play a key role in ritual performance, regulation of water resources and in the election of political leaders. Within his own clan, everyone has obligations toward one another. Failing to discharge one’s obligation towards a clan or fellow Borana would spoil the mutually supportive relation established by Boorana aada- seera.44 III. COLLECTIVE SANCTION (RESPONSIBILITY) A. Collective Sanction-Exclusion from Nagaa Boorana Collective sanction may result from two situations. One is when a Borana violates Borana aada- seera and fails to carry the penalty imposed on him by elders at clan and Borana levels. The other sanction is the one imposed collectively on a clan whose member has committed a crime like homicide. When a Borana defies Borana aada–seera and disregards decisions given by elders, the case will be brought before Gumii Gaayyo where his exclusion from nagaa Boorana will be announced.45Gumii Gaayyo is a supreme body with a supreme governing power which is 40 Badajaa Waariyoo, Interview made July 28, 2013. 41 In an interview I have made with Borbor Bule on August 1, 2013, since land and pasture are collectively used and regulated by the community, the causes for criminal disputes between individuals are minimal. In one of my observations during my visit to Dirre district in May 2014, I have been to Dubuluq town on a big market day where there was a single police in the town who as he told me went there from Yaballo for that day. There are no police stations in the Pastoral areas. 42 Mamo Hebo, The Role of elders in conflict Resolution: The Case of arsi Oromo with Special reference to Dodola District and its Environments, in TAREKEGN ADEBO & HANNAH TSADIK (EDS.), MAKING PEACE IN ETHIOPIA: FIVE CASES OF TRADITIONAL MECHANISMS FOR CONFLICT RESOLUTION, pp 48-77 Addis Ababa: peace and development committee, 2008, at 48. 43 Interviews were made on February, 23, 2012, Aug 23, 2012, and July 24, 2013 With the Zonal Justice Bureau Officer (T.A.), Public Prosecutor (M.G) and Police Officer (T.L). 44 BASSI, supra note 15. 45 The exclusion includes denial of greetings. 38 HARAMAYA LAW REVIEW [Vol. 6:2017] subordinate only to divine rule. It is organized every eight years and made up of all the Gada assemblies of the Borana clans. Legislative power on all matters concerning Borana is vested in the Gumii Gaayyo. In addition to legislative power; Gumii Gaayyo has political and juridical powers.46 A person brought before the Gumii will lose all Borana privileges attached to Boorantitti which will make him defenseless. The formal way of depriving a disruptive person his Boorantitti identity is by excluding him from nagaa Borana at Gumii Gaayyo. As a result of the exclusion, the law-breaker will be excommunicated from the community where every Borana will withhold greetings and blessings from him. Most importantly, the habitual offender will be deprived of all social privileges and ritual support required from the whole Borana. In their justice system, the Borana bring habitual law-breakers into line simply by withdrawing all the social privileges, benefits and ritual support required from the whole Borana including the daily greetings, blessings and the prayers of the Borana. At the 40th Gumii Gaayo, which took place in August 2012, a person who has raped a girl and defied the authority of the Gada was brought before the Gumii and he was cursed for the act and defiance.47 The act of the young person was described by the Abba Gadaa as a detestable and disruptive of nagaa Boorana. He considered the act as unacceptable under Borana aada- seera which required the decision of the Gumii.48 After hearing the case from the Abbaa Gadaa, Gumii members discussed on the issue and finally decided to exclude the young person from nagaa Boorana. Since, having known about his son’s criminal act, the father failed to advise his son to respect the law; he was also excluded from nagaa Boorana. According to Borana aadaa- seera, if a person harbors a criminal or advises him not to appear before elders, his act is considered against the law for which he will be punished. Based on the exclusion declared by the 40th Gumii Gaayo, the young person and his father will not be looked for if they are lost; they will not be buried, if they die. No one will marry their daughters nor does any person give them his daughter. They will be deprived of the right to use water-wells (eela) belonging to Borana clans. No one should enter their houses and sit on the seats they provide. The Gumii declared that the exclusion will apply to any Borana who violates the exclusion imposed on the young person and his father. If any person violates the exclusion by allowing them to use a water-well, that person will also face the same exclusion. As a result of the exclusion from nagaa Boorana, the young person and his father have been deprived of Booranntitti and all the privileges and benefits derived from it. In May 2014, the young person asked for forgiveness as a result of which his Borana rights and privileges have been restored. In Borana pastoral way of life, watering of animals, herding, sharing of goods and services and settlement of disputes dictates mutual support and collaboration.49 In Borana social setting, where everything required for livelihood including water is collectively used and administered 46 A Shongolo, The Gumii Gaayyo assembly of the Boran: A traditional legislative organ and its relationship to the Ethiopian state and a modernizing worlds, Zeschcrift fur ethnologie 119 (1996). 47 I have personally observed this. 48 Abbaa Gadaa Guyyo Goba interview made on Aug 20, 2012 49 Jaatanii, Interview made May 14, 2014. Aberra, INDIVIDUALIZATION OF PUNISHMENT 39 through clan system, a habitual offender who may possibly be subjected to such withdrawal cannot survive. A person who violates rules having to do with the use of water resources will be punished by exclusion from using that water resource (eela) which is used collectively by all clan members. If a person repeatedly violates the rules, he will be deprived of access to these collectively used water resources and excluded from all vital social supports.50 In that context, the kind of sanction imposed on the young person and his father at the 40th Gumii Gaayo can be considered a very severe punishment. In a pastoral society, withdrawal of social support and exclusion from access to dry season water wells means the impossibility of carrying out the traditional pastoral activity. Among the pastoral Borana, even a basic work like the extraction of water from the deep traditional wells requires the cooperation of numerous pastoral units. That is why clans share collective rights and obligations and clan members help one another in times of hardship. Through his clan, a person can be coerced to fulfill his obligations towards his clan and fellow Borana. Each Borana clan is clustered into lineages which is an important subdivision of a clan with a considerable influence on the life of individual Borana. The social privileges, rights, duties, seniority position, and social identity of a person are rooted in the lineage. In addition to being an effective way of reaching him in Borana land, in times of crisis, a person’s clan and lineage comes to his rescue.51 Among the Borana, an individual who disrupts nagaa Boorana by repeatedly infringing Borana aada-seera is considered as a person lacking the character of Boorantitti.52 If a Borana disregards his obligations towards his clan and fellow Borana by repeatedly disobeying Borana aada –seera, the clan will withdraw all the benefits and privileges the habitual offender enjoys. Such a person is outlawed by his clan and deprived of his status where he can no more claim clan protection. The clan to which such an offender belongs disowns him and discontinues all further responsibility for his criminal actions.53 B. Gumaa - A Practice of Collective Responsibility Borana aada-seera has put in place punishment (adaba) that is effective by way of inducing obedience and enabling members of the society to maintain a strong sense of discipline. Under Borana indigenous justice system, the clan whose member has committed serious crime like homicide will be collectively responsible for the criminal act committed by such a member. Through such collectivist sanctions, the Borana have created a mechanism of containing crime where every clan as a collective and every individual member make sure that laws are respected by way of refraining from committing crime. The system has been found to be appropriate for the kinship-based Borana pastoral way of life.54 50 Borbor Bule, Interview made on Aug 1, 2013. 51 Asmarom, supra note 23. 52 Jaatanii, Interview made on Aug 3, 2013. 53 Gufu, supra note 21. 54 P.T.W Baxter, Borana Age-Sets and Generation-Sets: Gada, A Puzzle or a Maze, in P.T.W BAXTER & URI ALMAGOR (EDS.) AGE, GENERATION AND TIME (pp. 151-182) London (1978). 40 HARAMAYA LAW REVIEW [Vol. 6:2017] The common practice among the Borana is, when homicide takes place, the killer will immediately report the incident to his near relatives and he will be kept at a certain temporary sanctuary. No Borana clan gives shelter to a culprit or a Borana who has spilled Borana blood with a view to hide him from justice. A culprit will be sheltered until the victim’s relatives are approached and araara process begins. The araara process commences with the family of the offender, with the help of elders, immediately approaching the relatives of the victim and asking for araara so as to avoid revenge. The araara ritual requires that the wrong-doer verbally express his remorse to the victim’s relatives. This will remove the feuds (warra gumaa) between the relatives of the victim and the offender thus bringing the araara process to its consummation.55 ‘Booranni nama ajeese gumaa oso hinbaasin of kessa hinkaa’u. Dhignni namaa dhangala’e sun lammii sana xureessa. Kanaafu gumaa fi hooda baafachu qaba.’56 This means, among the Borana, a clan does not keep or hide a person who has spilt human blood and has not gone through the reconciliation ritual and paid gumaa since doing that would bring from God a certain misfortune to that community. The belief among the Borana is, in case of homicide, the killer’s act violates not only Booranaa aadaa-seera but also the law of Waaqa. As a consequence, the clan to which the perpetrator belongs will collectively be disposed to spiritual retribution from Waaqa. Adabbi Waaqa hambisuuf nama qoffatti oso hintaane Waaqatti araaramuutu barbaachisa.57 This literally means, in order to escape God’s punishment, you need to make reconciliation not only with man but with God as well. For this reason, the Borana consider both the payment of gumaa and the araara compulsory. From the offender’s perspective, based on Borana collectivist philosophy and aadaa-seera, clan members enjoy privileges and benefits deriving from their membership which includes giving a member protection and coming to his rescue when a clan member is in need of support. This indigenous principle of collective responsibility applied among the Borana may be viewed as a practice that encourages criminality. Because if one knows that his/her clan is going to be responsible for his act, he will tend to commit crime. However, the Borana argue otherwise. They say “Gosti sodaa kaffalti yakka irra of eegee, wal’eega.”58 This means the clans restrain their members from committing crime for fear of paying gumaa. Besides, as intentional killing is not acceptable among the Borana, the payment of Gumaa is limited to cases where the killing is accidental (Dagu).59 In case of a clan member who has intentionally killed a Borana and that is proved, the clan will not be responsible for that.60 These days, such cases are left to the court to be dealt with. 55 Dirribii, supra note 39. 56 Waaqo Guyyo, Interview made on July 30, 2013. 57 Jaatanii Diida, Interview made on May 14, 2014. 58 Borbor Bule, Interview made on Aug 1, 2013. 59 Actually, from what I have gathered from the elders, dagu is much broader than accidental. The elders who see the case will determine whether it is dagu or intentional killing. 60 Rape, serious bodily injuries and spilling of human blood are punishable but what is paid may vary. The Borana have laws for everything and what the punishments are for the wrongs committed against another person and even horses. Accidental killing cannot be prevented but the belief and the moral restraint among the society is preventative effect. Aberra, INDIVIDUALIZATION OF PUNISHMENT 41 According to Borana elders, supporting a clan member who intentionally killed a person would be encouraging killing. Since this is known, everyone refrains from intentionally committing crime. Besides, in terms of material costs, since repeated crimes will be too great a strain on the resource of a clan, every clan will see to it that all members comply with Boorana aada-seera. If there is a clan member who repeatedly commits crime, the clan to which the habitual offender belongs withdraws all the privileges and benefits such member enjoys and excludes him from nagaa Boorana. 61 As violation of aada-seera is detested under Borana indigenous justice system, there is no room for criminals. Clans restrain their members from committing crime in fear of paying gumaa.62 As an individual, every Borana comply with Borana laws in fear of being deprived of the privileges and protection flowing from membership which in effect has made the Borana generally law-abiding. According to Asmarom, “how deep the sense of order is among the Borana can be gleaned from the fact that homicide-within their society is virtually unknown.”63 In Borana society, the principle of collective responsibility is serving as an effective instrument through which the individual Borana and the collective mutually ensure obedience to Boorana aada-seera, prevent crime and consequently avoid payment of gumaa. The principle has enabled the pastoral Borana to collectively control those who may possibly disrupt their social harmony (nagaa Boorana).64 The formal criminal justice system has imposed itself on the Borana people and claims to be the best protector of Borana peace.65 As a whole, the philosophy of collective responsibility among the Borana views crime as having communal character. They do not consider crime as a mere solitary act of an individual which has nothing to do with the community. The Borana look at the causes, consequences and remedies of crime in collective sense. In actual fact, the merits of a certain practice are measured by its responsiveness to the needs of the users of the system. IV. CONCLUSION Communal way of life is the bedrock of African indigenous worldview. Africans measure the effectiveness of their laws and sanctions by their ability to maintain communal harmony. The fact that Borana people are largely pastoralists has shaped their values, rules and institutional set up. Borana is a kinship society where a member of a clan enjoys benefits and privileges as a member of a clan. A clan will provide the necessary support and protection to a law-abiding clan member where he faces hardship and attack. But a Borana who disregards his obligations 61 Borbor Bule, Interview made on May 16, 2014. 62 A person who commits crime is a liability to a clan so in order to avoid this liability, clans want to make sure that every clan and clan member comply with Borana laws. 63 Asmarom, supra note 23, at 27. 64 The only prisons in Borana are in Yaballo and Bule Hora. In places where this practice is effectively working, there are police stations. I met a single policeman at Dubuluq on a market day. 65 The formal justice system is inaccessible to Borana pastoral areas. They are limited to the big towns and the Zonal capital Yaballo. Besides, a Zonal police officer I have interviewed has told me that they don’t have police stations in the lowland pastoral woredas (Interview with T. L July 24, 2013). The same thing is true of other formal justice institutions. All these gaps are filled by the Borana informal justice system. 42 HARAMAYA LAW REVIEW [Vol. 6:2017] towards his clan and fellow Borana will lose his benefits and privileges. Among the Borana, the combined use of exclusion (abaarsa) and principle of collective responsibility has made the Borana law-abiding. This approach has been shaped by the people’s collectivist and relationship- focused worldview. Collective responsibility is one of the core values embedded in Borana worldview along with mutual survival and interdependence. Among the Borana, crime is viewed as an act which disrupts nagaa Boorana. For the Borana, nagaa (peace) is indivisible and considered as a collective treasure which belongs to all Borana. The philosophy is that to restore nagaa Boorana which is collective, collective response is necessary. In other words, the maintenance of harmonious relations is a shared duty of every Borana. Collective responsibility and sense of shared destiny are necessary features of Borana way of life. The people have successful record in organizing collective action and managing conflict. In general, so far, in terms of performance, the clan-based Borana justice system in general and its principle of collective responsibility seem to have worked well in disciplining its members. Every clan member has been kept within the bounds of the norms of the society because of the fear of being deprived of his social connection which is a severe kind of punishment. Every clan has more or less ensured that its members continued to be law-abiding in fear of paying gumaa. Hence, in the context of Borana clan-based and pastoral social setting, the principle of collective responsibility would still be relevant. In the context of Ethiopia in general, where there are diverse indigenous justice systems operating, studies have to be made to determine the potential each one may have in preventing crime in the concerned societies. As they are derived from local experiences, indigenous knowledge systems of the people are more suitable in addressing local problems including crimes than the one imposed by the State. The practice of involving the community in the prevention of crime which is working among the Borana can be used by the formal justice system itself. * * * * * 
work_h2acv4v3zrdpfbyukavcy2wfl4	----	Microsoft Word - geoforum EJ editorial6final.doc Geographies of Environmental Justice The concept of environmental justice, from its earliest emergence in the civil rights politics of the United States, has always been intensely geographical. The legal and political contestation of proposals to site polluting and toxic facilities in predominantly poor and black communities, which formed the central political mobilisation of the US environmental justice movement, focused on questions of distribution, inequality and injustice which resonate with long standing traditions of geographical enquiry and analysis. The body of US based literature on environmental justice contains substantial contributions by geographers, including multiple empirical studies of patterns of location of industrial and waste sites, historical research on processes of co-evolution of urban and industrial development, and analysis of environmental justice activism in general and in particular settings. Not surprisingly much of this work has been framed by the particularities of environmental justice in the US. Whilst there are significant exceptions, attention has predominantly been given to the socio-spatial distribution of pollution and ‘toxicity’ within US national borders, to the politics of race and civil rights, and to policy responses to accusations of environmental racism in facility siting. However, the terminology of environmental justice has now travelled beyond the US and the sites of grassroots activism within which it originated. Whilst retaining its potency in relation to grassroots and everyday struggles against injustice at multiple political sites (Dunion and Scandrett 2003; Schlosberg 2004), this ‘fast conceptual transfer’ (Debbane and Keil 2004: 209) has taken place mainly within political and academic elites. Principles of environmental justice have as a consequence begun to feature within policy rhetoric and the work of mainstream institutions operating in varied places and at different scales of governance. For example, in the UK environmental justice (or, frequently ‘environmental inequality’ or ‘environment and social justice’, the terminological significance of which may serve do particular political work in terms of what is included in the politics of justice and the environment) has been included in the strategic priorities of the main environmental regulatory agency, the Environment Agency (Chalmers and Colvin 2005), and features repeatedly within the new national strategy for sustainable development, Securing the Future (DEFRA 2005). In South Africa, principles of environmental CORE Metadata, citation and similar papers at core.ac.uk Provided by Lancaster E-Prints https://core.ac.uk/display/71733?utm_source=pdf&utm_medium=banner&utm_campaign=pdf-decoration-v1 justice have been bought into the mainstream through their inclusion in the Constitution (Patel, this volume), and within the negotiations and documentation of multilateral environmental agreements, principles of equity and justice frequently surface (Okereke, this volume). In breaking away from its origins and initial framing in the US, the concept of environmental justice is evolving to become broader in scope and more encompassing in the sites, forms and processes of injustice it is concerned with. In becoming more globalised, the environmental justice agenda is extending into questions of distribution both between and across nation-states (Stephens et al 2001; Newell 2005), and into very different political, cultural and economic environments (Ageyman et al, 2003). Justice ‘to whom’ is being cast in more inclusive terms to include, for example, differences of gender, age and the rights of future generations (Buckingham- Hatfield et al 2005; Dobson 1998). Notions of the environment have similarly broadened to include access to environmental goods and resources such as water, energy and greenspace (Lucas et al 2004, Heynen 2003) and the threat of ‘natural’ as well as technologically produced risks, interfacing here with ‘vulnerability’ literatures (Walker et al 2006; Adger et al. 2003; Pelling 2005) Whilst opening up new pathways for activism, academic analysis, and institutional intervention, a dynamic and expansive environmental justice agenda also raises many challenges. This special issue of Geoforum considers such challenges and their implications by explicitly focusing on arenas within which environmental justice has to date been relatively unexplored. First presented at a session on environmental justice organised by the Planning and Environment Research Group of the Royal Geographical Society/Institute of British Geographers at the International Geographical Congress, held in Glasgow in August 2004 1 , the papers demonstrate the resurgence of critical concern with issues of environmental justice, and broader issues of (in)justice and (in)equality, within the geographical imagination. In exploring the varied geographies of environmental justice, the papers take on board the need to examine the evolution and application of the concept outside of the narrow confines of the US, and beyond western liberal notions of environment and justice. To this end, 1 Other papers from the conference session concerned specifically with the UK context have been published in Local Environment: the International Journal for Justice and Sustainability, 10 (4). each of the papers is seeking a critical engagement with the use of an environmental justice framework. They do so in different post-colonial political and cultural contexts - India, Ireland, South Africa, Australia, Singapore - and at different scales of articulation extending from the particular local case, through to institutions of international environmental governance. In setting the scene for these discussions, in the remainder of this editorial we consider three particular challenges for the development of (geographical) research on environmental justice: first, how questions of terminology, meaning and definition may be addressed; second, the connections between environmental justice and sustainability; and finally, how notions of environmental justice must confront issues of multiplicity and diversity. Environmental justice and inequality Despite the long history of theoretical discussion over the term justice and all that it implies, the notion of environmental justice, in part reflecting its roots in a social movement, has been subject to less intensive interrogation and definitional precision. The way in which the notion of environmental justice has been deployed has been more as an instinctive gut reaction than as a closely argued concept. There are, of course, some extensive and rigorous treatments (e.g. Dobson 1998; Low and Gleeson 1998), but in the main the impulse has been to call for environmental justice as a response to perceived injustice, as judged through observations of unreasonable inequality in outcome and lack of ‘fair treatment’ for, in particular, people and social groups that are already marginalised and disadvantaged. Given that there are some shared, common sense understandings of environmental injustice/justice, further conceptual deliberation and clarification may not be all that useful. On the other hand, as the concept breaks free from its initial moorings and is at once translated into other political sites of intervention and taken up within mainstream political institutions, exploring critically its varied meanings and keeping hold of a (radical) sense of justice may be important. Several of the papers in this issue take some time to consider the meaning of justice in an environmental context, demonstrating the complexities and diversity of perspectives that can be adopted and recruited for strategic purposes. It we take the idea of environmental justice as equality the “familiar and crucial practical question … equality of what is raised. Should it be opportunities (after liberal convention), primary goods (after Rawls), resources (after Dworkin), capabilities (after Sen) or welfare outcomes?” (Smith 2000: 6). In the main, much of the attention initially given to environmental justice adopted a consequential focus on (in)equality of outcomes, that is of the distribution of environmental risks (Schlosberg 2004). There are, however, concerns about a language of justice based on the premise of distributional equality. First, in relation to environmental risks, this logically could be addressed by the even sharing of environmental burdens rather than by addressing any of the route causes of environmental problems (Dobson, 1998). Second, given that much of the environment, when broadly defined, is inherently and sometimes uniquely distributed into particular places and cannot sensibly be experienced equally or uniformly, it can become positively perverse to be seeking its ‘even’ distribution (whatever that might mean). In this sense, an unequal distribution of environmental goods or bads by itself may not necessarily be unjust (Walker et al 2005a) – it is rather the ‘fairness’ of the processes through which the distribution has occurred and the possibilities which individuals and communities have to avoid or ameliorate risk, or to access environmental resources, which are important. In part for these reasons, both within movements for environmental justice and in academic discourse, alternative notions of justice have been deployed, in terms of both ‘recognition’ (Schlosberg 2004) and participation in the processes through which decisions about exposure to risks and access to resources take place. There is much to be debated here, but, we would argue, no necessity to pursue an agenda of absolute definitional precision and commonality of perspective. Whilst Ikeme (2003; 195) appeals for conceptual clarity and a ‘unifying framework’, the ethical and ideological character of justice theory can only serve to maintain plurality and alternative perspectives are likely to be more or less appropriate to different practical and analytical contexts (there are further tensions here between universal notions of justice/rights and justice worked out on the ground in particular places; see below). Furthermore, the term ‘equity’, rather unhelpfully, too easily slips in its use between the descriptive sense of inequality, and the normative sense of justice, providing a further complication for the search for clarity in language and meaning. The papers in this volume ably demonstrate the need to conceive environmental justice as a ‘broad church’ within which different notions of justice are encompassed. Williams and Mawdsly and Davies emphasise process dimensions, considering the ways in which groups are able to articulate and practise environmental justice activism and take forward agendas, which in turn raise questions of distribution, access and recognition. Hobson, argues that a performative approach can provide an alternative way of viewing environmental justice and its role in everyday political struggles. Patel and Okereke both focus on institutions and the ways in which the egalitarian notions of justice in sustainable development are worked out in practice and constrained in turn by technocratic approaches and a neoliberal emphasis on market efficiency. Hillman suggests that alongside any treatment of the distributional and procedural aspects of environmental justice, due consideration must also be given to ecological justice – in the form of relationships between the social and natural worlds (Low and Gleeson 1998) – and to the ways in which the ‘environment’ is defined in particular social and historical contexts. Not only are multiple dimensions of environment and justice invoked across the papers, but their persistent entanglement suggests that outside the realms of abstract conceptual debate, separating out the multiple dimensions of justice and environment may both be futile and of only limited value. Environmental justice and sustainability In making a journey from its initial conceptualisation, environmental justice has more directly entered the intellectual and policy territory of sustainable development raising questions of interrelationship and relative utility (Ageyman and Evans 2004). Given that sustainable development provides the meta-narrative for environmental concerns it is necessary to ask if the environmental justice vocabulary and analytical lens adds anything useful to what is already in place. Is this just a new unhelpful, branding which begins to take apart the integrative discourse and values of sustainable development? Two key issues are illuminating here. First, whether concepts of justice and equity are reconcilable between the two sets of discourses. 2 Second, how notions of environmental justice seek to engage with the traditional model of sustainable development as a means through which to engage economic, social and environmental concerns simultaneously. If we look back to the Brundtland Report (WCED 1987) as the primary source of conceptualisation of sustainable development, notions of equity and justice are fundamental. The focus on meeting the needs of current and future generations both centres on current inequalities in the meeting of basic needs and establishes the pursuit of intra and intergenerational equity as key dimensions of future progress towards sustainability. If the ability to live in an environment which meets reasonable standards of quality and tolerable levels of environmental risk is included as a basic need, and one which the Brundtland Report argues is intrinsically necessary for meeting other social needs, then addressing these environmental needs and pursuing environmental justice is manifestly encompassed within, if not central to, the broader framing of sustainable development. In practice, however, from the very earliest stages of implementation, translation and re-presentation of the notion of sustainable development, there have been criticisms that equity and justice issues have been downplayed. Nowhere is this perhaps more apparent than in the continuing tensions over responsibilities and equitable approaches to addressing international environmental problems, such as climate change (Okereke, this volume). ‘Weak’ forms of sustainability have been criticised as casting environmental protection in economic terms, whilst ‘strong’ forms of sustainability have been seen to neglect the impacts that moves to sustain critical environmental capital might have on social equity. In this way, the environmental and social dimensions of sustainability have tended to be separately pursued, neglecting their interactions and attendant equity and justice implications (Patel, this volume). When set alongside the failure of environmental movements to engage with how environmental quality is being experienced by marginalised communities at a ‘doorstep’ level; the possibility that the new participatory and deliberative agenda of environmental decision-making may be serving to exclude some ‘public’ voices 2 Within the sustainable development discourse the term equity is typically used rather than justice but, as noted above, without a clear definitional distinction whilst privileging others; and the failure of policy appraisal and impact assessment tools to consider how environmental change may be socially distributed (Walker et al 2005b), it is hard to argue that all of the many concerns that there might be about how the environment is regressively socially distributed, the fairness of decision-making procedures and the negative social consequences of environmental policy, have been adequately given voice, researched and addressed within the 20-year discourse of sustainable development. Nonetheless, it would be a mistake to view environmental justice as simply plugging this gap. While the discourses and mobilisations of environmental justice provide the political space to consider the ‘socio-environmental’ aspects of sustainability, including, for example, issues of fuel poverty, graffiti and vandalism in the UK (Lucas et al 2004), or the differentials of water use and water culture in South Africa (Debbane and Keil 2004: 222), the agenda is both more far-reaching and more fundamental. Rather than being only concerned with the surface manifestations of environmental injustice, as a political programme environmental justice is concerned with the underlying causes and dynamics of inequities at different scales. Thus, in the context of the urban, for example, ‘there is no such thing as an unsustainable city in general. Rather, there are a series of urban and environmental processes that negatively effect some social groups while benefiting others’ (Swyngedouw and Heynen 2003:901). In seeking to understand the causes and consequences of environmental inequities, and the ways in which they can be addressed, we necessarily confront the relations between the economy, society and the state (Newell 2005). Rather than providing a further prop to existing notions of sustainable development, in these ways, environmental justice may bring enable new critical engagements with the relations between economy, environment and society, and illuminate the radical potential of sustainability. As Debbane and Keil (2004:222) argue ‘we must remind ourselves of the perhaps most important single aspect of the global, multiscale environmental justice movement in its various incarnations: its function to provide a safeguard against the depoliticisation of environmental politics.’ In this light, we would argue that the addition of environmental justice as ‘a vocabulary of political opportunity’ (Agyeman and Evans, 2004), and a new framing for research and policy attention in which equity is brought to the foreground, is both welcome and necessary. However, it is critical to ensure that as notions of environmental justice enter into mainstream discourses, the elasticity of the concept does not mean that it is reduced to the (relatively) comfortable assessment of how local, visible manifestations of social justice problems can be ‘cleaned up’ and how environmental law can be more strictly enforced (both of which have been evident in governmental interpretations in the UK). Rather, in refocusing attention on equity and inequity within sustainable development, environmental justice has the potential to provide a productive intellectual and policy space for multidimensional and multi- scalar exploration of its many meanings, manifestations and implications. Environmental justice, multiplicity and diversity Recognition of the plurality of the meanings and principles of environmental justice poses a further challenge to those who seek to identify a set of universal principles of justice and sustainability. For some, ‘notions of justice and notions of movements linked to justice struggles are highly diverse and can not be measured or expressed in universal terms’ (Debbane and Keil 2004: 209). For others, the acceptance of different concepts of justice leads to the kind of relativism which makes any notion of justice in the first instance meaningless (Low and Gleeson 1998). Schlosberg (2004) suggests that an alternative is possible. In recognising the importance of context in shaping struggles for environmental justice, it is argued that by confronting the underlying logics of inequity through multiple sites, a unified, if not uniform, environmental justice movement can be forged (Schlosberg 2004: 534). The papers in this volume, by taking seriously the difference that different contexts make in shaping discourses and practices of environmental inequities, provide insights into the tensions between universal and particular notions of environmental justice, while Willams and Mawdsley (this volume) explicitly consider the validity of Scholsberg’s arguments for engaging with environmental justice in a post-colonial context. At the same time, engaging with environmental justice poses significant material challenges for those seeking equity in access to resources and in protection from harm. Where the ‘environment of justice’ – be it access to clean air, to water, productive land and so on – is subject to change, assessing what constitutes just access and just protection carries additional conceptual and practical challenges (Hillman, this volume). Given that arguments for environmental justice extend across spatial and temporal scales, and the complexities of the environmental systems within which justice is sought, uncertainties about future environmental goods and bads provide another critical issue with which concepts and policies of environmental justice have to engage (Hillman, this volume, Okereke, this volume). There are also local contingencies in the conditions under which environmental justice arguments are and can be evoked within strategies of resistance and activism. Davies (this volume) contrasts the lack of environmental justice discourse in the case of protests against the siting of an incinerator in Ireland, with the political opportunities this could provide in the future through the deployment of scaling-up opportunities, linking with other social justice movements and exploiting the rights now enshrined within the Aarhus convention. In the context of the distinctive capitalist state of Singapore, Hobson (this volume) argues that environmental justice is implicit and performative in the enactment of environmental care and in micro- struggles over the meanings and uses of space, despite the absence of liberal democratic institutions and formal opportunities for political activism. In India Williams and Mawdsley (this volume) emphasise various ways in which the postcolonial experience shapes and constrains opportunities for pursuing a western model of environmental justice. They argue that the western model becomes particularly problematic in its faith in a deliberative democracy that will be inclusive and afford recognition to all and in the expectation that state action to manage the environment will be both effective and applied in non-discriminatory ways. They more generally conclude from their analysis that “regardless of the theoretical lens through which concepts of injustice are viewed … a close examination of differences in the context in which struggles for environmental justice are located is required” This conclusion pervades each of the papers in this volume and provides an important intervention in the sometimes too easy movement of ideas, approaches and concepts between places and contexts. It is also a timely reminder of the need to consider geography in all of its dimensions in the deployment of an environmental justice discourse and frame of analysis. References Adger, N., Huq, S., ,Brown, K., Conway, D. and Hulme, M. (2003) Adaptation to climate change in the developing world, Progress in Development Studies, 3 (3): 179- 195 Agyeman, J., Bullard, R. D. and Evans, B. (2003) Just Sustainabilities: development in an unequal world, Earthscan, London Agyeman, J. & Evans, B. (2004) Just sustainability: the emerging discourse of environmental justice in Britain?, The Geographical Journal, 170(2), pp. 155–164. Buckingham-Hatfield, S., Reeves, D. and Batchelor, A. (2005) Wasting women: the environmental justice of including women in municipal waste management, Local Environment, 10(4), pp 427-444 Chalmers, H. and Colvin, J. (2005) Addressing Environmental Inequalities in UK Policy: an action research perspective, Local Environment, 10(4), pp. 333-360. DEFRA (2005) Securing the Future: Delivering the UK Sustainable Development Strategy, London: The Stationary Office Dobson, A. (1998) Justice and the environment: conceptions of environmental sustainability and dimensions of social justice, Oxford University Press, Oxford Dunion, K. and Scandrett, E. (2003) The campaign for environmental justice in Scotland as a response to poverty in a northern nation, in J Agyeman , R Bullard and B Evans (eds) Just Sustainabilities: development in an unequal world, Earthscan, London Debbané, A. and Keil, R. (2004) Multiple disconnections: environmental justice and urban water in Canada and South Africa, Space and Polity , 8 (2): 209-225. Heynen N. C. (2003) The Scalar Production of Injustice within the Urban Forest, Antipode, 35 (5) 980-998 Ikeme, J. (2003) Equity, environmental justice and sustainability: incomplete approaches to climate change politics, Global Environmental Change 13: 195-206 Low, N. and Gleeson, B. (1998) Justice, society and nature: an exploration of political ecology, Routledge. London Lucas, K., Walker, G., Eames, M., Fay, H., and Poustie, M. (2004) Environment and Social Justice: Rapid Research and Evidence Review, Sustainable Development Research Network, Policy Studies Institute, London. Newell, P. (2005) Race, class and the global politics of environmental inequality, Global Environmental Politics, 5 (3): 70-94 Pelling, M. (2005) The Vulnerability of Cities: natural disasters and social resilience, Earthscan, London. Scholsberg, D. (2004) Reconceiving environmental justice: global movements and political theories, Environmental Politics, 13 (3): 517-540. Smith, D. (2000) Moral progress in human geography: transcending the place of good fortune, Progress in Human Geography, 24 (1): 1-18. Stephens, C., Bullock, S. and Scott, A. (2001) Environmental Justice: rights and mean to a healthy environment for all, Special Briefing Paper 7, ESRC Global Environmental Change Programme Swyngedouw, E. and Heynen, N. (2003) Urban political ecology, justice and the politics of scale, Antipode 35 (5), 898-918 Walker, G. P., Mitchell, G., Fairburn, J. and Smith, G. (2005a) Industrial pollution and social deprivation: evidence and complexity in evaluating and responding to environmental inequality, Local Environment, 10(4), pp 361-377 Walker, G. P., Fay, H. and Mitchell, G. (2005b) Environmental Justice Impact Assessment: an evaluation of requirements and tools for distributional analysis, a report for Friends of the Earth England and Wales, FoE, London. Walker, G., Burningham, K., Fielding, J. and Smith, G. (2006) Addressing Environmental Inequalities: Flood Risk, Environment Agency, Bristol. WCED (World Commission on Environment and Development) (1987) Our Common Future, Oxford University Press, Oxford. 
work_h4k7s5vehzfjfagzr3naobpqfm	----	Rangelov Iavor Justice as a security strategy? International justice and the liberal peace in the Balkans Article (Accepted version) (Refereed) Original citation: Rangelov, Iavor (2016) Justice as a security strategy? International justice and the liberal peace in the Balkans. Journal of Conflict and Security Law, 21 (1). pp. 9-28. ISSN 1467-7954 DOI: 10.1093/jcsl/krv017 © 2015 Oxford University Press This version available at: http://eprints.lse.ac.uk/66914/ Available in LSE Research Online: June 2016 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://www.lse.ac.uk/internationalDevelopment/people/rangelovi.aspx http://jcsl.oxfordjournals.org/ http://dx.doi.org/10.1093/jcsl/krv017 http://global.oup.com/?cc=gb http://eprints.lse.ac.uk/66914/ 1 Justice as a Security Strategy? International Justice and the Liberal Peace in the Balkans Iavor Rangelov 1 Abstract The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the midst of the war in Bosnia and Herzegovina was seen by many as a radical innovation in security thinking and practice. This paper examines the security implications of international justice in the Balkans by situating the analysis within the broader context of international interventions in the region. The paper starts by elaborating a distinctive conception of ‘security’ that emerges from the pursuit of international justice, addressing questions such as security for whom, security from what, and security by what means. It then examines the jurisprudence of the ICTY to determine whether judicial practice has tended to promote this distinctive approach to security. The final section explores the interactions of international justice and liberal peace interventions in the Balkans, focusing in particular on peacemaking, peacekeeping and peacebuilding. The paper argues that the revival of international justice half a century after the Nuremberg Trials can be understood as signaling a shift in security paradigms from statism to human rights, while also giving rise to deep tensions between them. These tensions are most clearly expressed in the interactions of international justice with other security instruments of the liberal peace, which are often employed by the international community in situations where international crimes occur. 1 Global Security Research Fellow, Department of International Development, London School of Economics and Political Science; Co-Chair, London Transitional Justice Network. E-mail: i.p.rangelov@lse.ac.uk. I would like to thank the participants at the conference ‘Law, Justice, and the Security Gap’, held in June 2014 at LSE, for comments on an earlier draft of this paper, and the European Research Council for financial support. 2 1. Introduction The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the midst of the war in Bosnia and Herzegovina was hailed by some as a development that marked the beginning of the end of impunity for egregious human rights violations, ushering in an era in which global security policy would be underpinned by concern for the security of individuals and communities and not only the security of States. Others were much more sceptical, however, arguing that the international community of States, acting through the UN Security Council and its Chapter VII powers to maintain international peace and security, was setting up courts to prosecute atrocities it could have prevented from occurring in the first place, staging trials instead of putting their soldiers’ lives on the line to protect civilians. Neither side was wrong. The deliberations at the Security Council that led to the creation of the Tribunal were dominated by statements expressing concern for the plight of civilians in the Balkans and enthusiasm for a revival of the Nuremberg legacy that could pave the way for a permanent international criminal court. 2 In less than a decade, the International Criminal Court had been established and questions of accountability and justice for serous international crimes were featuring regularly in global security discussions. Shortly after it had decided to put in place a tribunal for the former Yugoslavia, the Security Council was preoccupied with the unfolding genocide in Rwanda. A twin court, the International Criminal Tribunal for Rwanda (ICTR), was set up in the wake of the most dramatic failure of the international community since the end of the Cold War to prevent and stop mass slaughter: “Law became a euphemism for inaction.” 3 These early debates are still relevant because they highlight the need to analyse the role of international justice in the security arena at two levels: with respect to the evolving normative underpinnings of security concepts and practices and, at the same time, in relation to other security instruments that are employed (or not) by the international community alongside international justice. Understanding the distinctive logic of international justice as a security instrument is important but insufficient on its own; it has to be complemented by an examination of the interactions of international justice with other security instruments that are simultaneously deployed and brought to bear in a particular context, especially when such instruments may constrain or reinforce the pursuit of justice in significant ways. 2 See Record of the 3175 th Meeting of the UNSC, 22 February 1993, UN Doc. S/PV.3175 (1993). 3 GJ Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press 2000) 215. 3 This article examines the security implications of international justice in the Balkans by situating the analysis within the broader context of international interventions in the region. It argues that the revival of international justice half a century after the Nuremberg and Tokyo trials could be interpreted as signaling a shift in security paradigms from statism to human rights while also giving rise to deep tensions between them. These tensions are most clearly expressed in the interactions of international justice with a set of security instruments associated with the ‘liberal peace’, which in one form or another have been routinely employed in situations where serious international crimes occur since the 1990s. 4 The argument is elaborated in relation to the Balkans, a region that has served as a laboratory for the international community in developing both transitional justice and liberal peace approaches to conflict-affected states. The concurrent evolution of these approaches over the past two decades has reinforced the idea that transitional justice is central to liberal peacebuilding and claims to that effect have become commonplace among practitioners and scholars. 5 The analysis presented here suggests that such claims should be treated with caution, however, and calls for a critical re-consideration of the relationship between transitional justice and the liberal peace. It also raises questions about a core set of critiques of the liberal peace that identify as the main problem the ‘liberalism’ of the interveners: “If only they were not, in various ways, so liberal, then it is alleged external intervention or assistance may potentially be much less problematic.” 6 The contribution reflects the overall preoccupation of the special issue with ‘security cultures’ as an analytical lens for investigating the role of law and justice in global security. A security culture combines a set of ideas and a set of practices that tend to reinforce each other. As Kaldor points out, a security culture is not a static concept; it is constructed and has to be continuously reproduced: “Understanding the mechanisms through which cultures are constructed enables us to identify openings and closures – points at which policy innovations are possible and where they are stuck… The aim is to substantiate specific security cultures 4 The article focuses on security instruments at the sharp end of the ‘liberal peace’, which refers to a broader set of interventions in fragile and conflict-affected states based on the idea that peace depends on the existence of liberal political and economic institutions that are functioning and effective, and aimed at constructing liberal polities, economies, and societies. See, e.g, A Bellamy, ‘The “Next Stage” in Peace Operations Theory’, in A Bellamy and P Williams (eds) Peace Operations and Global Order (Routledge 2007); M Duffield, Global Governance and the New Wars: The Merging of Development and Security (Zed Books 2001); R Paris, At War’s End: Building Peace after Civil Conflict (CUP 2002); O Richmond, ‘The Problem of Peace: Understanding the “Liberal Peace”’ (2006) 6(3) Conflict, Security & Development 291-314. 5 See Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report of the Secretary General, UN Doc. S/2004/616 (223 August 2004). See generally CL Sriram, ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice’ (2007) 21(4) Global Society 579-591. 6 D Chandler, ‘The Uncritical Critique of ‘Liberal Peace’’ (2010) 36 Rev of Int’l Studies 137-155, 144. 4 and the ways in which they are constructed so as to understand and interpret their different internal logics.” 7 This approach is productive for examining international justice and the liberal peace because it draws attention to the ways in which their relationship is mediated by certain sets of ideas and practices that reflect particular logics and these logics, in turn, structure their interactions. Peace usually refers to peace between states, whereas human rights tend to be about the domestic arena. The liberal peace is statist in that the priority is peace between collective actors (the warring parties) rather than human rights, which are at the heart of the project of international justice. As a security culture, the liberal peace involves a combination of statist objectives and statist methods of enforcement that contradicts the logic of a human rights approach and complicates its pursuit in practice. The article proceeds in three sections. The first section traces the evolution of international justice from its origins in the wake of World War II to its revival half a century later with the establishment of the Yugoslav Tribunal. The aim is to elaborate a distinctive conception of ‘security’ that emerges from this trajectory, addressing questions such as security for whom, security from what, and security by what means. The following section examines the jurisprudence of the ICTY to determine whether judicial practice has tended to promote this distinctive approach to security. The final section explores the interactions of international justice and liberal peace interventions in the Balkans, focusing in particular on three types of security instruments that have been deployed in the region in conjunction with international justice: peacemaking, peacekeeping and peacebuilding. 2. Reinventing Justice, Reframing Security The foundations of international criminal justice were laid down by the Allies in the wake of World War II with the establishment of the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East in Tokyo (Tokyo Tribunal) for the prosecution of major war criminals of the defeated Axis powers. 8 International justice had been suspended for nearly five decades when the Security Council 7 M Kaldor, ‘Security Cultures’, Security in Transition Working Paper, July 2015, 9. 8 Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 59 Stat. 1544, 82 UNTS 279 (1945) (hereinafter Nuremberg Charter); Charter of the International Military Tribunal for the Far East, reproduced in International Military Tribunal of the Far East, Established in Tokyo, Jan. 19, 1946, US Department of State Pub. No. 2675 (1946) (hereinafter Tokyo Charter). 5 unanimously decided to establish the ICTY in February 1993. 9 The decision was seen as advancing the principles and legacy of the Nuremberg trials. There were, however, fundamental differences between the birth of international justice and its resurrection half a century later. With respect to the main purpose and justification of conducting criminal prosecutions at the international level, the Nuremberg Tribunal was set up to punish violations of state sovereignty committed in the context of a ‘total war’, whereas the Yugoslav Tribunal was created to prosecute human rights violations inflicted in pursuit of ‘ethnic cleansing’. The different rationales are reflected in the character of the central offense and have shaped the exercise of international justice at these junctures in other important ways, harnessing international law and forum to promote shifting paradigms of security. An early version of the rationale behind the Nuremberg trials was set out in a report of the Czechoslovak delegate to the United Nations War Crimes Commission (UNWCC, a body created to investigate crimes and identify suspects) in March 1944, which made the case for the offenses subsequently codified in the Nuremberg Charter as ‘crimes against peace’: His thesis was that the paramount crime was the launching and waging of the Second World War, and that individuals responsible for it should be held penally liable and tried accordingly. The criminal nature of the last war was found to derive from its aim and methods. The aims were to enslave foreign nations, to destroy their civilization and physically annihilate a considerable section of their population on racial, political or religious grounds. The methods arouse from the fact that it was a “total” war, which disregarded all humanitarian considerations lying at the root of the laws and customs of war, and introduced indiscriminate means of warfare and barbaric methods of occupation. 10 The central offense selected for prosecution and punishment was the violation of state sovereignty pursued by means of military conquest and occupation. Crimes against peace were prosecuted as the paramount crime at Nuremberg, defined as “planning, preparation, initiation or waging of war of aggression, or a war in violation of international treaties, agreements and assurances, or participation in a common plan and conspiracy for the 9 SC Res 808, UN Doc S/RES/808 (1993); SC Res 827, UN Doc S/Res/827 (1993) adopted the Statute of the International Tribunal as annexed to the Report of the Secretary General pursuant to paragraph 2 of SC Res 808, UN Doc S/25704 (1993) (hereinafter ICTY Statute). 10 UNWCC, History of the United Nations War Crimes Commission and the Development of the Law of War (H.M.S.O. 1948), 180. 6 accomplishment of any of the foregoing.” 11 War crimes and crimes against humanity were also prosecuted at Nuremberg but these offenses were seen as secondary because they emanated, as it were, from the cardinal crime of planning and waging aggressive war. The hierarchy of crimes was made explicit in the Charter of the Tokyo Tribunal, where crimes against humanity and war crimes on their own were not sufficient for assuming jurisdiction: “The Tribunal shall have the power to try and punish Far Eastern war criminal who as individuals or members of organizations are charged with offenses that include Crimes against Peace.” 12 The Nuremberg Judgment reaffirmed the superior status of crimes against peace in relation to other international crimes: The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. 13 Nuremberg’s obsession with aggression has been the subject of much criticism. One problem was the way it affected the framing of crimes against humanity, the other major innovation of the trials, by establishing a nexus to international armed conflict. Crimes against humanity could be prosecuted only in connection with either crimes against peace or war crimes, even though this charge was supposed to capture the crimes of the Holocaust. Hannah Arendt observed that what had prevented the judges from doing full justice to crimes against humanity was that the Nuremberg Charter “demanded that this crime, which had so little to do with war that its commission actually conflicted with and hindered the war’s conduct, was to be bound up with the other crimes.” 14 Others have argued that the Nuremberg legacy was compromised by limiting the enforcement of human rights to atrocities committed in the course of pursuing aggressive war by the defeated party, raising the problem of ‘victors’ justice’. David Luban observers that the aspirations of the Nuremberg trials to vindicate the rights of human beings were called into question by the 11 Nuremberg Charter, Article 6. 12 Tokyo Charter, Article 5. 13 International Military Tribunal (Nuremberg). Judgment and Sentences, 1 October 1946, reproduced in 41(1) AJIL 172-333 (1947), 186. 14 H Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 1994), 258. 7 failure to prosecute crimes committed in Germany before the war as well as those committed by Allied war criminals. 15 Against the background of Nuremberg, the creation of the Yugoslav Tribunal could be interpreted not simply as a revival but a reinvention of international criminal justice, signalling a paradigm shift. The main concern of the international community was the growing evidence of mass atrocities in the former Yugoslavia. By late 1992, the Security Council had put in place a commission to investigate violations of international humanitarian law committed in the region. 16 The Commission of Experts reported that mass killings, rape, torture and destruction of civilian, cultural and religious property had been committed in the context of ethnic cleansing, and suggested that an international criminal tribunal was established to investigate and prosecute the ongoing violations. 17 Acting under Chapter VII powers of the UN Charter to maintain international peace and security, the Security Council established the ICTY with a mandate to bring to justice those responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. 18 The primacy of human rights in the new paradigm is evident from what was included in the substantive jurisdiction of the Tribunal – war crimes (grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war), crimes against humanity, and genocide – and what was missing: crimes against peace. Prosecution and punishment at the international level was justified in relation to supressing human rights violations rather than violations of state sovereignty. Despite the fact that the Security Council acted under Chapter VII and the disintegration of Yugoslavia had sparked heated debates over sovereignty, international justice was not concerned with aggression – the classic threat to international peace and security as these are traditionally understood. It was invoked as a response to ethnic cleansing targeting the civilian population. In line with this approach, the definition of crimes against humanity was expanded to incorporate offenses such as rape and torture. 19 The Security Council established the ICTY in the midst of the war in Bosnia and Herzegovina on the understanding that bringing perpetrators of international crimes to justice 15 D Luban, Legal Modernism (University of Michigan Press 1994). 16 SC Res 870, UN Doc S/RES/870 (1992). 17 See Interim Report of the Commission of Experts, reproduced in Annex I of Letter dated 9 February 1993 from the Secretary General addressed to the President of the Security Council, UN Doc S/25274 (1994). 18 See supra n 8. 19 ICTY Statute, Article 5. 8 would contribute to halting and redressing such violations and this, in turn, would facilitate the restoration and maintenance of peace. 20 This unorthodox approach was animated by a particular logic, reflecting the idea that the prospect for peace in the former Yugoslavia depended on suppressing extreme nationalism and criminalizing its goals and methods: ethnic cleansing and genocide. 21 International justice was viewed as a particularly suitable instrument in that respect because it focused on perpetrators and victims as individuals, effectively countering the narratives of collective guilt and victimhood that were prevalent in the region and fuelling the conflict. Madeline Albright, who spearheaded the efforts to establish the Yugoslav and Rwanda Tribunals while serving as US Ambassador to the UN, put it this way at the time: [T]he tribunal will make it easier for the Bosnian people to reach a genuine peace. The scars left on the bodies and in the minds of the survivors of this war will take time to heal. In too many places, neighbours were betrayed by neighbour and friend divided by friend by fierce and hostile passion. Too many families have assembled at too many cemeteries for us to say that ethnic differences in Bosnia do not matter. But responsibility for these crimes does not rest with Serbs or Croats or Muslims as peoples; it rests with the people who ordered and committed the crimes. The wounds opened by this war will heal much faster if collective guilt is expunged and individual responsibility is assigned. 22 This particular framing of the Tribunal’s contribution to peace in the Balkans by individualising guilt for atrocity crimes was subsequently embraced by the judges and prosecutors as well; in fact, they have gone to great lengths to dispel any suspicion that that the Tribunal might be meting out collective guilt and punishment. Former Chief Prosecutor Carla Del Ponte emphasized that point in her opening speech at the trial of Slobodan Milošević: “No state or organisation is on trial here today. The indictments do not accuse an entire people of being collectively guilty of the crimes, not even the crimes of genocide.” 23 This is a self-consciously liberal conception of justice, centred on individuals as bearers of rights and responsibility for violations, and its contribution to peace. 20 SC Res 827. 21 I Rangelov, Nationalism and the Rule of Law: Lessons from the Balkans and Beyond (CUP 2014), 86-90. 22 MK Albright, Address at the US Holocaust Memorial Museum, Washington, DC, 12 April 1994, available at http://www.silent-edge.org/mt/rwanda/albright.html (accessed 20 May 2015). 23 Prosecutor v. Milošević, IT-01-51-I, Transcripts, 12 February 2002, 4. 9 In sum, the evolution of international justice from its origins at the Nuremberg trials to its reinvention half a century later with the establishment of the Yugoslav Tribunal could be interpreted as a shift in security paradigms from statism to human rights. A distinctive conception of ‘security’ can be detected in the pursuit of international justice in the former Yugoslavia by addressing three questions. First, security for whom? Breaking with the state- centricity of the Nuremberg paradigm, in the new paradigm of international justice the referent object of security are individuals rather than states. Second, security from what? The key shift in this respect is from violations of state sovereignty to violations of human rights, in particular atrocities, expulsions and other human rights abuses committed in the context of ethnic cleansing. Finally, security by what means? International justice contributes to security by enforcing the rights of victims to redress under international law and holding perpetrators accountable by assigning individual criminal responsibility, and thereby also serving to supress extreme nationalism and counter narratives of collective guilt. Taken together, these three dimensions effectively recast international justice as a security strategy premised on a liberal understanding of criminal law’s contribution to security. 24 3. Adapting and Developing the Law Although the pursuit of international justice in the Balkans appeared to promise a shift in security thinking and practice, it was also clear from the start that fulfilling that promise even partially was bound to involve grappling with serious challenges and was anything but predetermined. Some of the challenges were beyond the control of the Tribunal, for example arresting and transferring suspects to The Hague, but others were within its powers. This section examines a set of tensions and problems arising in the jurisprudence of the Tribunal and considers the ways in which the judges have sought to respond by adapting and developing international law. Adapting the law to the logic and purposes of the new paradigm has been pursued by the ICTY primarily in two ways: firstly, by addressing some of the statist assumptions of the Nuremberg paradigm and international humanitarian law to better reflect the character of the violence in the former Yugoslavia and, secondly, by extending the normative reach of the law to encompass new subjects and offenses that become important from a human rights perspective. 24 As Alan Norrie has pointed out, “Criminal law is, at heart, a practical application of liberal political philosophy.” A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (Weidenfeld & Nicolson 1993) 10. 10 One aspect of the state-centricity of international humanitarian law concerns the classic distinction between ‘international’ armed conflict between states and ‘non- international’ or ‘internal’ armed conflict within states. The emphasis on state borders and sovereignty animates this distinction not only in a descriptive sense but also normatively since the same type of abuses may be proscribed and give rise to individual criminal responsibility when committed in interstate conflicts but not in civil ones – a discrepancy in the laws of war that Steven Ratner has called one of the ‘schizophrenias’ of international criminal law. 25 A lot was at stake for the Tribunal when it secured its first defendant, Duško Tadić, and the proceedings began. The Security Council had abstained from determining the character of the hostilities in the former Yugoslavia when it established the Tribunal, leaving the issue to the judges. There were two problems in applying the distinction to the Yugoslav wars of disintegration. First, the conflict in Bosnia and Herzegovina did not fit easily either the ‘international’ or ‘internal’ category. State borders in the former Yugoslavia were porous, shifting, and hotly contested; if anything, the character of the conflict appeared to be regional and transnational. 26 Second, the distinction was normatively loaded in a way that could not withstand critical scrutiny. Given the gravity of the violations committed in the region, the distinction risked frustrating the humanitarian purposes of the law and appeared unsustainable from a human rights perspective. In dealing with these problems, the ICTY has pursued a twofold approach in its jurisprudence. On the one hand, it has acknowledged that an armed conflict may have both international and non-international elements and has sought to determine under what circumstances an internal conflict may become ‘internationalized’. 27 At the same time, the judges have strived to narrow the gap in protection and have criticised the distinction on principle. In the Tadić Jurisdiction Appeal, the Appeals Chamber highlighted the problems with the distinction as far as human beings were concerned: 25 SR Ratner, ‘The Schizophrenias of International Criminal Law’ (1998) 33(1) Texas Int’l LJ 237-256. 26 On regional conflicts, see generally P Wallenstein and M Sollenberg, ‘Armed Conflict and Regional conflict complexes’ (1997) 35(5) Journal of Peace Research 621-634. 27 The Tadić Appeal Judgement stipulated that an internal conflict “may become international (or, depending upon the circumstances, be international in character) if (i) another State intervenes in that conflict through its troops, or alternatively, (ii) some of the participants in the internal armed conflict act on behalf of that other States”. Prosecutor v. Tadić, T-94-1-A, Judgement, 15 July 1999, para. 84 (hereinafter Tadić Appeal Judgement). For a critique of internationalized armed conflict, which argues for a single law applicable to all armed conflict, see JG Stewart, ‘Towards a Single Definition of Armed Conflict in International humanitarian Law: A Critique of Internationalized Armed Conflict’ (2003) 85 RICR/IRRC 313-349. 11 Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted “only” within the territory of a sovereign State? If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight. 28 The state-centric view of war that underpinned much of the relevant international law presented other challenges for the Tribunal. What Mary Kaldor calls ‘new wars’ are typically fought by networks of state and non-state actors. 29 In the Yugoslav wars of disintegration, such networks included an array of military and paramilitary forces, regular and irregular police units, militias, criminal groups, private security companies and other actors. One of the legacies of Nuremberg and subsequent domestic trials for the Holocaust in places like France was that crimes against humanity required a nexus to state policy. 30 Dusko Tadic, however, was not a modern-day Eichmann or Goering; he had been running a café and karate courses in Kozarac, a small town in North-Western Bosnia, not armies or ministries. To do justice to crimes against humanity committed in the context of ethnic cleansing in the Balkans, where these offenses appeared to capture both the goals and methods of warfare, the Tribunal had to acknowledge the important role of non-state actors. The Trial Chamber held that “the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory.” 31 The significance of these developments at the ICTY has been widely acknowledged. William Schabas, for example, argues that as a result of such developments in the law, “perpetrators of serious violations of human rights during non-international armed conflict, including non-State actors, are far less likely to escape justice than they were in the past.” 32 28 Prosecutor v. Tadić, IT-94-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 97 (hereinafter Tadić Jurisdiction Appeal). 29 M Kaldor, New and Old Wars: Organised Violence in a Global Era (Polity 1999). 30 See, for example, Klaus Barbie, Judgement (Chambre criminelle de la Cour de Cassation), 20 December 1985. 31 Prosecutor v. Tadić, IT-94-1-T, Opinion and Judgement, 7 May 1997, para. 654. See also the analysis of the ambiguity created by this interpretation of the law in WA Schabas, ‘Punishment of Non-State Actors in Non- International Armed Conflict’ (2003) 26 Fordham Int’l LJ 907-933, 926-929. 32 Ibid. 922. 12 Much more controversial – and disruptive for the Tribunal itself – has been the effort to adapt the law that relates to modes of criminal liability in ways that could capture the role of state actors in network-based warfare and ethnic cleansing. The complex formal and informal chains of command and the murky relationships forged in the wartime networks in the former Yugoslavia were bound to create problems for the Tribunal. Established theories of liability, such as ‘direct commission’ and ‘command responsibility’, often appeared inadequate when applied to the facts on the ground; at the same time, Nuremberg’s controversial theories of collective criminal liability, such as ‘conspiracy’ and ‘criminal organisation’, were also to be avoided. As a result, a number of cases at the ICTY have involved prosecuting suspects, including Slobodan Milošević, for offenses committed as part of a Joint Criminal Enterprise (JCE) – a doctrine that seemed to offer a viable solution but also aroused much controversy among international lawyers. Initially, the issue with JCE appeared to be that prosecutors and judges at the Tribunal might be using the doctrine as a ‘catch-all’ device, 33 whereas in subsequent cases the judges narrowed its interpretation in ways that were seen by some observers as undermining “JCE’s unique ability to describe criminal arrangements too complex to fit within traditional theories of criminal liability.” 34 JCE divided the Tribunal and sparked public controversy in the case of Gotovina et al., involving three Croatian generals prosecuted for crimes against humanity committed in Operation Storm – the offensive of the Croatian forces in Krajina that effectively ended the war in Croatia. The Trial Chamber unanimously found two of the defendants, Ante Gotovina and Mladen Markač, responsible for participation in a JCE aimed at “the permanent removal of the Serb civilian population from the Krajina by force or threat of force, which amounted to and involved persecution (deportation, unlawful attacks against civilians and civilian objects and discriminatory and restrictive measures), deportation and forcible transfer,” and sentenced them to 24 and 18 years, respectively. 35 A divided Appeals Chamber (three to two), however, reversed the finding of the Trial Chamber that a JCE existed beyond reasonable doubt and acquitted the defendants on that basis. 36 In a strongly worded dissenting opinion, Judge Pocar entertained the possibility that the majority might be driven by ulterior motives in quashing 33 See S Powles, ‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity’ (2004) 2 J of Int’l Criminal Justice 606-619. 34 A O’Rourke, ‘Joint Criminal Enterprise and Brđanin: Misguided Over-Correction’ (2006) 47(1) Harvard Int’l LJ 307-325, 307. 35 Prosecutor v. Gotovina, Markač & Čermak, IT-06-90-T, Judgement, 15 April 2011, paras. 2600, 2617-2618. 36 Prosecutor v. Gotovina & Markač, IT-60-90-A, Judgement, 16 November 2012, paras. 98, 158. 13 the JCE and characterised the entire Judgement as contradicting “any sense of justice.” 37 In Croatia, the public and the State were galvanized by these verdicts, united first in condemnation and then in celebration of the rulings; in Serbia, the reverse was the case. 38 The other issue that has generated much controversy in recent years, both at the Tribunal and in the public domain, concerns aiding and abetting liability. It turns on whether the actus reus of this mode of liability requires ‘specific direction’, i.e. assistance provided by the accused to those who commit crimes that is specifically directed to aiding the commission of the crimes, or whether it is sufficient to establish knowledge that the aided forces are committing crimes and the aid provided would assist them in doing that. The ICTY Trial Chamber rejected the specific direction standard and convicted Momčilo Perišić, former Chief of Staff of the Yugoslav armed forces, for aiding and abetting Bosnian Serb forces implicated in atrocities in Srebrenica and Sarajevo. 39 The Appeals Chamber, however, upheld the specific direction standard. Considering the nature of the aid and the suspect’s remoteness from the theatre, it concluded that it could not be proven beyond reasonable doubt that the aid provided by Perišić was specifically directed to assist the commission of the crimes, and reversed the conviction. 40 As Marko Milanovic has pointed out, the implication of the approach adopted in the Perišić Appeal Judgement is that “it will be practically impossible to convict under aiding and abetting any political or military leader external to a conflict who is assisting one of the parties even while knowing that they are engaging in mass atrocities, so long as the leader is remote from the actual operations and is not stupid enough to leave a smoking gun behind him.” 41 Adopting this narrow approach to aiding and abetting liability (in conjunction with finding, separately, that the accused did not participate in a JCE) subsequently led the Trial Chamber to acquit Jovica Stanišić and Franko Simatović, former chiefs of Serbia’s State Security Service (DB), who had been involved in setting up and running irregular units implicated in mass atrocities in Bosnia and Croatia. 42 37 Prosecutor v. Gotovina & Markač, IT-60-90-A, Dissenting Opinion of Judge Fausto Pocar, 16 November 2012, paras. 30, 39. 38 In an intriguing twist, when Gotovina arrived in Zagreb to a hero’s welcoming, he did not try to fuel the nationalist passions his acquittal had aroused across the country as many had predicted; instead, he made a surprising appeal for reconciliation and return of Serb refugees to Croatia. B Pavelic, ‘Gotovina: Unlikely Hero of Croat-Serb Dialogue’, BalkanInsight, 7 December 2011, available at http://www.balkaninsight.com/en/article/gotovina-unlikely-hero-of-croat-serb-dialogue (accessed 10 June 2015). 39 Prosecutor v. Perišić, IT-04-81-T, Judgement, 6 September 2011, paras. 1624, 1838. 40 Prosecutor v. Perišić, IT-04-81-A, Judgement, 28 February 2013, paras. 17-74. 41 M Milanovic, ‘The Limits of aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic’, EJIL: Talk!, 11 March 2013, available at http://www.ejiltalk.org/the-limits-of-aiding-and-abetting- liability-the-icty-appeals-chamber-acquits-momcilo-perisic/ (accessed 15 June 2015). 42 Prosecutor v. Stanišić & Simatović, IT-03-69-T, Judgement, 30 May 2013, paras. 2356-2363. 14 The controversy was fuelled when Frederik Harhoff, the Danish judge sitting on the ICTY, attacked the President of the Tribunal, Theodor Meron, in a letter that was leaked to the media. The letter accused Judge Meron of exerting pressure on his fellow judges to acquit defendants like Gotovina and Perišić, allegedly acting on behalf of powerful States such as the United States and Israel where the military establishment “felt that the tribunal was getting too close to top-ranking military commanders.” 43 The Harhoff scandal precipitated the most serious crisis in the entire existence of the ICTY. Since then, the tensions in the Tribunal and its jurisprudence on aiding and abetting liability have deepened. The Appeals Chamber in Šainović et al. held that specific direction was not an element of aiding and abetting liability under customary international law and stated that it “unequivocally rejects the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.” 44 As this article goes to press the much-anticipated decision of the Appeals Chamber in Stanišić & Simatović is pending and the controversy continues. At the same time, shifting the lens from statism to human rights has enabled the Tribunal to extend the normative reach of the law in relation to the substantive offenses within its jurisdiction, making visible and prompting prosecution of certain types of human rights violations that had previously been overlooked or dismissed. In the Nuremberg paradigm, for example, atrocities involving civilians were often viewed as aberrations that were not dictated by the logic of ‘total war’ and in some cases directly conflicted with it by diverting resources away from the front and encumbering the war effort. This is one reason why the Holocaust appeared almost incomprehensible at Nuremberg, although once the shocking nature and scale of these atrocities had been revealed in the course of the proceedings they did move the judges and influenced their sentencing practices. 45 Other atrocities against civilians were typically understood as regrettable side effects of the hostilities, largely unrelated to the conduct of the war itself; as one contemporary commentator put it, “It should be remembered that these crimes are committed chiefly against enemy innocent civilians, non-combatants; that these violations have no relationship with military and strategic considerations.” 46 43 Excerpts of the letter in English were quoted in Marlise Simons, ‘Judge at War Crimes Tribunal Faults Acquittals of Serb and Croat Commanders’, New York Times, 14 June 2014. 44 Prosecutor v. Šainović at al., IT-05-87-A, Judgement, 23 January 2014, paras. 1649-1650. 45 RS Clark, ‘Nuremberg and Tokyo in Contemporary Perspective’, in TLH McCormack and GJ Simpson (eds) The Law of War Crimes: National and International Approaches (Kluwer Law International 1997), 175. 46 MH Myerson, Germany’s War Crimes and Punishment: The Problem of Individual and Collective Criminality (Macmillan Co. of Canada 1944), 230-231. 15 One of the implications of the new paradigm of international justice that emerged in the 1990s was that certain types of human rights violations, which had been consistently neglected in the past, were coming into focus and taken up for prosecution and punishment. Historically, wartime rape and other forms of sexual violence have been viewed as little more than an incidental by-product of armed conflict. The trials after World War II largely neglected abuses involving sexual violence, even in cases where such abuses had a direct relationship to the war effort such as the ‘comfort women’ system run by the Japanese military. 47 Half a century later the United Nations Special Rapporteur for Violence Against Women, Radhika Coomaraswamy, argued that rape was still “the least condemned international crime.” 48 Amid reports of widespread and systematic rape in Bosnia, the Security Council explicitly referenced sexual assaults when it created the ICTY and incorporated rape as a crime against humanity in the Statute. 49 Richard Goldstone notes that the strong condemnation of sexual violence was a key aspect of the motivation for establishing the Tribunal in the first place. 50 Reinforced by sustained attention to such violations in civil society and the media, these developments paved the way for a series of ground-breaking cases that prosecuted various forms of sexual violence as war crimes and crimes against humanity. 51 When evaluating the overall legacy of the Tribunal, observers often emphasise the “huge strides in redressing gender crimes and demonstrating that sexual violence is strategically used as a weapon of war and an instrument of terror. The two Tribunals [for Yugoslavia and Rwanda] have together rendered Judgments recognizing rape and other forms of sexual violence as crimes against humanity, war crimes, instruments of genocide, means of persecution, and forms of torture, particularly sexual violence manifested in the form of rape, sexual slavery, forced nudity, and sexual mutilation.” 52 Such developments in the law have to 47 See G Hicks, The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War (Norton 19950; C Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’ (2001) 95(2) AJ Int’l L 335-341. 48 Special Rapporteur on Violence Against Women, Preliminary Report on Violence Against Women, Its Causes and Consequences, UN Doc E/CN4/1995/42 (1994), para. 42. 49 See Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc S/25704 (1993), paras. 9, 11, 48, 88, 108; ICTY Statute, Article 5(g). 50 RJ Goldstone, ‘Prosecuting Rape as a War Crime’ (2002) 34 Case W Res J Int’l L 277-285, 278. 51 See, e.g., Prosecutor v. Furundžija, IT-95-17/1-T, Trial Judgement, 10 December 1998 (rape as a violation of the laws or customs of war); Prosecutor v. Mucić et al., IT-96-21-T, 16 November 1998 (rape constitutes torture and a grave breach of the Geneva Conventions); Prosecutor v Kunarac et al., IT-96-23/1-T, 22 February 2001 (rape as an instrument of terror, a violation of the laws or customs of war and a crime against humanity). 52 KD Askin, ‘Reflections on Some of the Most Significant Achievements of the ICTY’ (2002/3) New Eng L Rev 903-914, 909-910. See generally KD Askin, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21(2) Berkeley J Int’l L 288-349. 16 be understood in terms of the Yugoslav Tribunal’s self-conscious conception of the relationship between international law and shifting paradigms of security. In this respect, when examining challenges to the Tribunal’s jurisdiction in its very first case, the judges held that “a state-sovereignty-oriented approach has been gradually supplanted by a human-rights- oriented approach.” 53 4. International Justice and the Liberal Peace Adapting and developing the law is of little significance if the former Israeli Ambassador to the United States, Abba Edan, is right that international law is the law “the wicked do not obey and the righteous do not enforce.” 54 Compliance and enforcement have indeed been central problems for the Yugoslav Tribunal over the past two decades. Especially with respect to arresting and transferring suspects to The Hague, the interests of States often appeared to trump human rights considerations and obstructed the course of justice. It could be argued that the problems of compliance and enforcement manifest a broader set of tensions between statism and human rights, which arise when international interventions associated with the liberal peace are pursued alongside international justice. These tensions are most clearly expressed in the interactions of international justice with security instruments at the sharp end of the liberal peace, although they can also be detected elsewhere in the toolbox of liberal peace interventionism. The argument is elaborated by examining three types of security instruments that have been deployed concurrently with international justice in the Balkans: peacemaking, peacekeeping and peacebuilding. As already noted, the establishment of the Yugoslav Tribunal advanced a distinctive approach to security by recasting individuals as the referent object of security and human rights violations as a threat to security, and by reframing as means for promoting security the enforcement of rights, prosecution and punishment of perpetrators, and suppression of mutually exclusive nationalisms and narratives of collective guilt. And yet, at key junctures when international justice was supposed to promote this approach, other security instruments were employed by the international community that have often contradicted and undermined its logic and purposes. One such juncture was Dayton. Peacemaking and international justice initially appeared to be mutually reinforcing rather than conflicting. The ICTY indicted the 53 Tadić Jurisdiction Appeal, para 97. 54 Quoted in WK Lietzau, ‘Combating Terrorism: The Consequences of Moving from Law Enforcement to War’, in D Wippman and M Evangelista (eds) New Wars, New Laws? Applying the Laws of War in 21 st Century Conflicts (Transnational Publishers 2005). 17 most senior leaders of the Bosnian Serbs, Radovan Karadžić and Ratko Mladić, in the run-up to the peace negotiations at Dayton. The US envoy leading the talks, Richard Holbrooke, has argued that the indictments made the job of the negotiators easier by allowing them to marginalise Karadžić and Mladić. 55 The Dayton Accords were concluded in November 1995 and incorporated provisions requiring the parties to cooperate with the Tribunal. 56 The international community was desperate for peace in Bosnia and negotiated a deal that ended the hostilities by effectively rewarding the extremists responsible for human rights abuses and legitimising the outcome of ethnic cleansing. The Dayton Accords created a patchwork of ethnic entities and enclaves and set up a framework of power-sharing between the three ‘constituent peoples’: Bosniaks, Croats and Serbs. If the pursuit of international justice was intended to vindicate human rights, promote accountability and suppress nationalism, the international community appeared to be doing the opposite at Dayton – even as it demanded cooperation with the Tribunal on paper. By entrenching ethnic divides and elites in power structures instead of creating the conditions for dismantling them, the settlement has engendered a sort of permanent crisis and two decades later it still requires the presence of peacekeepers. As Timothy Donais notes, the result is that “the country’s politics remains largely segregated along ethnic lines, nationalist rhetoric continues to be the key currency of Bosnian political life, and the practice of reaping the spoils of office for the benefit of self or party continues to be the norm.” 57 The Dayton agreement affected the prospects for human rights and accountability in Bosnia and the wider region in several ways. The tensions between the constitutional order constructed at Dayton and international human rights standards have been highlighted by the European Court of Human Rights. In Sejdić and Finci it held that Bosnia’s constitutional provisions preventing persons not affiliated with one of the three ‘constituent peoples’ to stand for election to the House of Peoples and the Presidency amounted to ethnic discrimination. 58 In the first years after Dayton, suspects like Karadžić and Maldić were allowed to move freely despite ICTY arrest warrants. In fact, Karadžić has insisted that in 55 ‘Seven Questions: Richard Holbrooke on Radovan Karadzic’, Foreign Policy, 24 July 2008, available at http://foreignpolicy.com/2008/07/24/seven-questions-richard-holbrooke-on-radovan-karadzic/ (accessed 15 June 2015). 56 See The Dayton Peace Agreement, General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995, U.S. Dept. State Dispatch Supp. 7(1). 57 T Donais, ‘Power Politics and the Rule of Law in Post-Dayton Bosnia’ (2013) 7(2) Studies in Social Justice 189-210, 202. 58 Sejdić and Finci v. Bosnia and Herzegovina, App. Nos. 27966/06 and 34836/06, Judgment of the Grand Chamber, 22 December 2009. 18 1996 Holbrooke made an agreement with him to withdraw from public life in exchange for immunity from prosecution. 59 Holbrooke denied the allegations but other credible sources have corroborated them and suspicions persist. 60 Dayton also had the effect of strengthening the repressive regimes of Slobodan Milošević and Franjo Tuđman, both of which had been implicated in wartime atrocities. By entrenching Milošević (hailed as a ‘peacemaker’ 61 at that time) and neglecting the brewing crisis in Kosovo, the settlement paved the way for the campaign of ethnic cleansing in the province that prompted the 1999 NATO bombing of Yugoslavia. Peacekeeping operations have also been disruptive for the logic and aims of international justice. The underlying statist understandings of security and stability that often inform such operations have tended to contradict and undermine the human rights approach. One expression of these tensions has involved a clash between force protection and human rights enforcement. States that had earlier spearheaded the effort to establish the Yugoslav Tribunal, such as the United States, became reluctant to put the lives of their soldiers in Bosnia at risk in order to apprehend suspects wanted by the ICTY: “With the memory of the eighteen U.S. soldiers killed in Somalia in 1993 still fresh, the U.S Joint Chiefs of Staff had signed off on the [Dayton] peace agreement only after receiving assurances from the White House that U.S. troops would not be ordered to hunt down war criminals.” 62 In line with force protection priorities, in the initial years NATO peacekeepers in Bosnia were instructed to take into custody individuals indicted by the ICTY only if they surrendered or happened to stumble upon international forces. Another example is the Kosovo crisis. The problems with the NATO bombing of Yugoslavia from a human rights perspective are well-known: use of cluster bombs and depleted uranium missiles; bombing the Serbian television and accidentally bombing the Chinese embassy in Belgrade; air strikes that caused civilian casualties and accelerated ethnic cleansing on the ground. 63 At a time when the NATO air campaign appeared to be losing momentum and public support, indicting Milošević was embraced as a way of legitimating the war and putting more pressure on Belgrade: “After years of refusing to turn over sensitive 59 See Prosecutor v. Karadžić, IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009. 60 M Simmons, ‘Study Backs Bosnian Serb’s Claim of Immunity’, New York Times, 21 March 2009. 61 See A LeBor, ‘Milosevic the Peacemaker’, IWPR, TU332, 7 November 2003, available at https://iwpr.net/global-voices/comment-milosevic-peacemaker (accessed 15 June 2015). 62 C Sudetic, ‘The Reluctant Gendarme’, Atlantic Monthly, April 2000. 63 See Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (OUP 2000). 19 intelligence data to the Tribunal in order to protect “sources and methods,” the United States and Britain were hurriedly handing over reams of satellite imagery, telephone intercepts, and other top secret information to the Prosecutor to make the case against Milosevic.” 64 Milošević and four members of his regime were indicted on 22 May 1999, sixty days into the seventy-eight day NATO air campaign. 65 The potential of international justice to advance human rights, promote accountability and defuse ethnic tensions was overshadowed by the effects of NATO air strikes and peacekeeping, which pulled in the opposite direction. The bombing of Yugoslavia had the effect of radicalizing Serbian nationalism and fuelling its narratives of victimization, reinforcing the traction of collectivist framings of the conflict and crimes in Serbian politics and society. When Serb forces pulled out of Kosovo, KFOR deployed some 40,000 peacekeepers to the province; their presence, however, did not prevent ethnic cleansing targeting the remaining Serbs and revenge attacks against Albanians accused of collaboration. The Kosovo Human Losses database at the Humanitarian Law Center (Belgrade and Pristina) has documented more than 1,600 casualties in Kosovo for the first year and a half of international peacekeeping (June 1999-December 2000), of which around a quarter are Albanian and the rest are Serb, Roma and other minorities, including many disappearances. 66 This high level of casualties at a time when peacekeepers had been deployed in large numbers reflects the reluctance of KFOR to send a clear message early on, particularly to the Kosovo Liberation Army (KLA), that international forces would not tolerate human rights abuses. The abuses and entrenchment of the KLA in power structures that occurred at that time have had far-reaching consequences for accountability by instilling fear in victims and witnesses, who have often been reluctant to come forward and testify in cases involving KLA members at the ICTY and at Kosovo’s hybrid courts for war crimes. The most significant peacebuilding instrument employed by the international community in the region is the Stabilisation and Association Process (SAP) for the Western Balkans, a regional policy framework established by the European Union (EU) in 1999 for the countries of the former Yugoslavia (excluding Slovenia) and Albania. The aim of the instrument is to promote stabilisation through a process of progressive partnership with these countries that includes the prospect of association and, eventually, accession to the EU. Full cooperation with the ICTY was set as a key condition for moving forward in the SAP, 64 MP Scharf, ‘The Legacy of the Milosevic Trial’ (2003) 37(4) New Eng L Rev 915-933, 924. 65 Prosecutor v. Milošević et al., IT-99-36, Indictment (Kosovo), 22 May 1999. 66 Data on file with the author. 20 alongside demonstrating respect for minority rights, offering real opportunities for displaced persons and refugees to return home and demonstrating a clear commitment to regional cooperation. The war crimes conditionality has been one of the most contentious aspects of the SAP and has often dominated the politics of EU integration in the region. 67 It was crucial for ensuring that all suspects sought by the Tribunal from the original list of 161 indicted persons were eventually apprehended and transferred to The Hague to stand trial, a lengthy and difficult process that was completed in 2011 with the arrests of Ratko Mladić and Goran Hadžić. At the same time, the ICTY conditionality was applied rather unevenly in the SAP, raising the issue of selectivity, and created divisions in the EU as some Member States insisted on a principled approach while others preferred compromise and accommodation. The tensions were expressed most clearly when the EU was using the war crimes issue to advance strategic considerations for stability and public order at the expense of the SAP’s normative commitments to accountability and human rights. 68 In the case of Croatia, the EU suspended accession negotiations over its failure to apprehend Gotovina and reopened them only after the Tribunal had been satisfied with Croatia’s efforts to cooperate. In the case of Serbia, however, the ICTY conditionality was repeatedly compromised and used by the EU as a bargaining chip in order to influence political developments in the country and to shape its response to Kosovo’s declaration of independence. Jelena Subotić observes that in that context “the issue of justice for crimes against humanity became an issue of the lowest order, a matter of deal making and compromise setting, removed as far as possible from the ideas and norms of dealing with the past.” 69 With the completion of the Tribunal’s remaining cases in sight, the EU has started to shift attention in the SAP from international justice to domestic prosecution of war crimes. So far, however, the focus has been on building capacity for conducting such trials at the various domestic and hybrid courts in the region, rather than requiring applicant countries to demonstrate effective investigation and prosecution of war crimes. 67 See J Batt and J Obradovic-Wochnik (eds) War Crimes, Conditionality, and EU Integration in the Western Balkans, ISS Chaillot Paper 116, June 2009. 68 See I Rangelov, ‘Democracy or Stability? European Approaches to Justice in Peace and Transitional Processes’ (2014) 5(2) Global Policy 191-200. 69 J Subotić, Hijacked Justice: Dealing with the Past in the Balkans (Cornell UP 2009), 81. 21 5. Conclusion The pursuit of international justice in the former Yugoslavia half a century after the Nuremberg trials signals a shift in security paradigms from statism to human rights, while also giving rise to deep tensions and contradictions between them. Judicial practice at the ICTY has tended to advance this shift by adapting and developing the law in line with a human rights approach to security but it has not been immune to setbacks and interference, especially when the jurisprudence of the Tribunal has appeared to challenge entrenched interests and practices of States. To the extent that the exercise of international justice depends on States for enforcement and for its continued existence, the Yugoslav case suggests that there are inherent tensions between statism and human rights that cannot be addressed by judicial bodies alone, in the absence of a parallel shift in the security thinking and practices of States. These tensions have affected the ability of international justice to offer a security strategy in the Balkans in important ways. The potential of international justice to promote a rights-based approach to security has been repeatedly compromised when liberal peace interventions in the region have been working at cross-purposes with international justice. Key security instruments that have been employed by the international community in the Balkans, such as peacemaking, peacekeeping and peacebuilding, reflect a set of state-centric ideas about security and involve related security practices that often disrupt the pursuit of international justice and undermine its logic and purposes. The interactions of international justice with such instruments could be understood as a series of tensions between elite- mediated peace deals, force protection priorities and an overarching concern for stability, on the one side, and normative commitments to promote accountability and enforce human rights, on the other. When key international actors engaged in the Balkans have viewed stability and justice as competing security strategies, the former has tended to trump the latter in practice. As a security culture, the liberal peace in its current form involves a set of state-centric ideas and practices that cannot be easily reconciled with the distinctive rights-centric conception of security advanced by international justice and often undermine its logic and purposes. More research is needed to illuminate the complex relationship between liberal peace interventions and justice instruments in situations where both are deployed. The Balkan case, however, calls into question the widespread assumption that transitional justice is an integral part of liberal peacebuilding and suggests that analysis along those lines may be misguided and counterproductive. Finally, the tensions between international justice and the 22 liberal peace raise questions about one of the standard lines of critique of liberal peacebuilding, which argues that the problem with the liberal peace is that it is too liberal. If ‘liberal’ means treating individuals as the referent object of security and placing human rights at the heart of the means and ends of public security provision, the problem with the liberal peace might well be the opposite. Rangelov_Justice as a Security Strategy _Cover Rangelov_Justice as a Security Strategy_Author_2016 
work_h4zbadklhjaitpp63f7skobmau	----	73 CRIMINAL JUSTICE SYSTEM OF CHILDREN: AN OVERVIEW RESTORATIVE JUSTICE CONCEPT IN INDONESIA AND OTHER COUNTRIES Loura Hardjaloka Bahar & Partners E-mail: loura.hardjaloka@gmail.com/loura@baharandpartners.com Abstract The pattern of repression in Act No. 3 of 1997 has been changed to a restorative justice through diversion in Act No. 11 of 2012 considering the repressive punishment does not reduce the number of juvenile criminal but increasing. The purpose of this research is to examine the concept of restorative justice in order to see the form of the application of the concept of restorative justice in Indonesia and other countries. The method of this research is judicial normative with secondary data and analyzed based on content analysis. Based on this research, the concept of restorative justice both in Indonesia and other countries is applied through a diversion for the best interest of children (actor), which are implemented in the form of mediation so the children can take their responsibilities for their actions without court trial. Keywords: juvenile justice system, comparative studies, restorative justice, diversion Abstrak Pola represif dalam Undang-Undang Nomor 3 Tahun 1997 telah bergeser menjadi keadilan restoratif melalui diversi dalam Undang-Undang Nomor 11 Tahun 2012 mengingat pemidanaan represif tidak me- nurunkan angka pidana anak tetapi justru meningkat. Tujuan penulisan ialah mengkaji konsep keadilan restoratif sehingga dapat dilihat bentuk penerapan konsep keadilan restoratif di Indonesia dan Negara lain. Metode penulisan yang digunakan ialah yuridis normatif dengan data sekunder dan dianalisis berdasarkan content analysis. Berdasarkan hasil penelitian, konsep keadilan restoratif baik di Indonesia dan Negara lainnya dilakukan melalui diversi untuk kepentingan terbaik (pelaku) anak yang diimple- mentasikan dalam bentuk mediasi sehingga anak dapat mempertanggungjawabkan perbuatannya tanpa melalui pengadilan. Kata kunci: sistem peradilan pidana anak, studi komparasi, restorative justice, diversi Preface Children Criminal Justice System (SPPA) is basically aimed at the welfare of the child, as defined in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.1 As a country that is part of the Convention on the Rights of the Child (Convention on the Rights of the Child), Indonesia also provide special pro- tection to children in conflict with the law through the establishment of Law No. 3 of 1997 about Juvenile Court (Law 3/1997) and Law No. 23 of 2002 about Child Protection. 1 Vanessa Coppins, Sharon Casey, dan Allan Campbell, “The Child’s Best Interest: A Review of Australian Juve- nile Justice Legislation”, The Open Criminology Journal, Vol. 1 No. August 2011, page 23. SPPA in Law 3/1997 do not provide opti- mal protection for the child considering the law still using formal juridical approach by empha- sizing punishment (retributive) that could po- tentially restrict the freedom and independence depriving children.2 The concept of punishment contained in Law 3/1997 not make the number of juvenile criminal diminishing, but increasing from year to year, as can be seen in Figure 1 below.3 2 Sufriadi Pinim dan Erasmus Napitupulu, 2013, Studi Atas Praktik-Praktik Peradilan Anak di Jakarta, Jakarta: Insti- ture for Criminal Justice Reform, page 14. 3 Yutirsa Yunus, “Analisis Konsep Restorative Justice Me- lalui Sistem Diversi Dalam Sistem Peradilan Pidana Anak Di Indonesia”, Jurnal Rechts Vinding, Vol. 2 No. 2nd Au- mailto:loura.hardjaloka@gmail.com/loura@baharandpartners.com 74 Jurnal Dinamika Hukum Vol. 15 No. 1, January 2015 Figure 1. Number of Child Prisoners in 2010 - 2013 Overcome the weaknesses of Law 3/1997, was issued Law No. 11 of 2012 on Juvenile Jus- tice System (Law 11/2012), which uses the ap- proach of restorative justice through diversion system. Diversion system is the transfer of the settlement of the child to outside the criminal justice process that involves a dialogue with victims, perpetrators, law enforcement offici- als, and the public. The concept of diversion gi- ven by Law 11/2012 which is different from the law 3/1997 only allows versioned conducted by the investigator based on the discretionary au- thority by submitting the return of the child to the parent, guardian, or foster parents. Imple- mentation of restorative justice is not only app- lied in Indonesia, but also in different countries applied for criminal cases in children and adoles- cents as in Illinois, Germany, Canada, Austria, Poland, and Spain. Problem Based on background above, therefore this research is intended to answer the problem as follows: first, how is the concept of resto- rative justice for children in conflict with the law in Law 11/2012; and second, how is the con- cept of restorative justice for children in con- gust 2013, Jakarta: Pusat Penelitian dan Pengembangan Sistem Hukum Nasional Badan Pembinaan Hukum Nasio- nal, page 232. 4 Eva Achjani Zulfa, “Keadilan Restoratif dan Revitalisasi Lembaga Adat di Indonesia”, Jurnal Kriminologi Indone- sia, Vol. 6 No. 2nd August 2010, page 185 5 Kristine Buffington, Carly Dierkhising, dan Shawn Marsh, “Ten Things Every Juvenile Court Should Know About flict with the law in the regulations in other countries. Research Methods This research is using normative juridical approach. Normative research is a legal research using secondary data including legislation, books, and research literature related to the re- search topic. Furthermore, the data were ana- lyzed with content analysis to analyze the for- mulation of the problem and then made a con- clusion and suggestion. Discussion The concept of Restorative Justice through Di- version in Law 11/2012 in Indonesia Children facing conflict with the law in Article 1 point 3 Law 11/2012, is a children at least 12 years old but not yet 18 years old. Con- cept and theories of punishment continues to develop. The goal is to address children in con- flict with the law. Starting from the traditional theory of justice that includes retributive justi- ce, restitutive justice, to the modern theory of justice such as restorative justice.4 Most of the criminal law experts, psycho- logists, and child behavior experts consider that the theory of restorative justice and a good right to be applied in the juvenile criminal justice sys- tem.5 The involvement of the parties is a major prerequisite to the implementation of the juve- nile criminal justice system based on restorative justice. The roles of the parties in criminal jus- tice-based subsidiary of restorative justice is as follows in Table 2.6 Law 11/2012, being passed on July 30, 2012, has embraced the paradigm of restorative justice through diversion system. As for the substance of the changes in Law 11/2012 of the most fundamental is expressly settings on res- torative justice and diversion intended to avoid Trauma and Delinquency”, Juvenile and Family Court Journal, Vol. 61 No. 3rd Agustus 2010, page 18. 6 Gordon Bazemore dan Susan Day, “Restoring the Ba- lance: Juvenile and Community Justice”, Journal of the Office of Juvenile Justice and Deliquency Prevention, Vol. 3 No. 1st March 2010, page 9. 0 1000 2000 3000 4000 2010 2011 2012 2013 547 3672 3635 2214 Criminal Justice System of Children: An Overview Restorative Justice Concept... 75 and keep children out of the judicial process so as to avoid stigmatization of children in conflict with the law and is expected child can return to the social environment reasonable. Table 1: The Differences between Retributive Justice, Restitutive Justice, and Restorative Justice7 Retributive Justice Restitutive Justice Restorative Justice  Emphasizing justice to re- tailation;  Children are in a position as an object;  Settlement of legal issues imbalanced. Emphasizes equity compen- sation  Emphasizing justice in the repair/recovery state;  Oriented to the victim;  Provide opportunities for actors to express annoyance to the victim and responsible;  Provide an opportunity for the offender and the victim to meet in order to reduce hostility and hatred;  Restoring balance in society;  Involving community members in an effort to elections. Source: Rosida Table 2: Role of Parties in the Restorative Justice Model for Children Criminalization through Accountability Rehabilitation through Competence Development Improving Public Sector Security Actors Contributing actively to recover losses suffered by the victim and the community and must meet the victims. Actively involved as a human re- sources who should improve the quality of life in the community and have a stock of knowledge, ex- perience, and self-esteem as a pro- ductive human resources to carry out positive activities. Involved in the development of self-competence and restorati- on activities; Increasing self- control, to make new friends, and active in the organization. Victim Involved in the development of self-competence and restoration activities; Increasing self-con- trol, to make new friends, and active in the organization. Providing input to the process of rehabilitation; Suggest the imple- menttation of social services for offenders; Participate in associa- tion victim or victim awareness training to staff and actors. Participating in creating sustai- nable security in the public sec- tor; Support other victims. Community Acting as a mediator; Developing social services and the opening of employment for offenders; Assis- tance to victims and provide sup- port to the actors in carrying out its obligations. Develop new employment oppor- tunities for young people to incre- ase productivity, competence, and a sense of belonging (self of belo- nging). Provide protection to the per- petrators, mentoring, and pro- vide input to the child criminal system in order to provide se- curity to the perpetrator; Over- come the problems that exist in the community related to kena- lana children. Professionals Facilitators of the mediation; En- suring restoration actions (by providing a way for actors to rai- se funds for restoration); Deve- lop creative community/commu- nity social services; To educate the public in accordance with the role. Developing new roles for actors so as to make them learn and demon- strate competencies learned; As- sess and build the strength of youth and the community; Develop cooperation between communi- ties. Accompanying the school and community to control and main- tain the offender in the com- munity; Develop the ability to prevent repeat offenders ac- tions. Source: Bazemore and Day The use of restorative justice approach in the juvenile criminal justice system defined in Article 5 paragraph (1) of Law 11/2012 that the juvenile criminal justice system shall prioritize restorative justice approach. Restorative justice is the completion of criminal cases involving per- petrators, victims, families’ perpetrator/victim, and other relevant parties to work together to find a fair settlement with emphasis on restoring 7 Nikmah Rosidah, “Pembaharuan Ide Diversi dalam Imple- mentasi Sistem Peradilan Anak di Indonesia”, Jurnal back to the original state, and not retaliation. Restorative justice approach is then implemen- ted through a system of diversion. Diversion is the transfer of the settlement of the child to the criminal justice process outside the criminal jus- tice process. Philosophically, the concept of di- version based on the opinion that the court will give stigmatization of children for their actions as a child is considered evil, so it is better to Masalah-Masalah Hukum, Vol. 41 No. April 2012, page 200. 76 Jurnal Dinamika Hukum Vol. 15 No. 1, January 2015 avoid it out of the criminal justice system.8 Di- version is granted because it fit with the philo- sophy of juvenile criminal justice system to pro- tect and rehabilitate child criminals.9 In addi- tion, the diversion is also performed as an actor prevention of child become adult criminals. Child prevention efforts that brought law enfor- cement officers to take discretionary authority or in the United States is often referred to as deinstitutionalization of the formal criminal jus- tice system.10 Diversion through the concept of resto- rative justice in Law 11/2012 is appropriate and consistent with the goals of diversion contained in the Beijing Rules namely: (i) In order to avoid arrest; (ii) to avoid stamp/stigmatized as cri- minals; (iii) to improve the skills of life for the child actors; (iv) that the perpetrators respon- sible for their actions; (v) to prevent the repe- tition of crime; (vi) to promote the necessary in- terventions for victims and perpetrators, with- out having to go through a formal process; (vii) the program will also prevent the diversion of children follow the justice system.11 Further, in Article 5 paragraph (3) of Law 11/2012 mentions, that the compulsory diver- sion system to be at the stage of investigation, prosecution, and trial. This liability is increa- singly defined through various provisions that oblige the law enforcement agencies include the investigator, the public investigator, and the judge to seek diversion, as follows: Table 4: Liability for Diversion Efforts Law Enforcement under Law 11/2012 Provision Law 11/2012 Liability for Diversion Efforts Article 7 Start checking at all levels of investigation, prosecution, and examination of the matter in court is obliged to seek diversion. Article 28 The investigator is obliged to seek diversion within 7 days after being found with the child. Article 37 The public prosecutor is obliged to seek diversion. Article 49 The judge is obliged to seek diversion. Source: Processed under Law 11/2012 Under Law 11/2012, the diversion is done through deliberations involving the child and the parent/guardian, the victim and/or parent/ guardian, the civic, and the supervising social worker professionals. In case necessary, the deliberations can also involve social welfare per- sonnel, and/or the community. As the process of diversion in a nutshell can be shown in Figure 2. Diversion can be carried out by the com- munity in a way to reconcile both parties i.e. victim and perpetrator. However, diversion can only be done with the permission of the victims and the families of the victim, as well as the willingness of the offender and his family. At- tempts to resolve the matter outside of court should take precedence, even the mediation process was still possible even though the mat- ter had been entered in court. The Tribunal jud- ges who adjudicate must facilitate when reques- ted by the parties, and if the litigants agrees to terms the Council immediately halted. Here it is seen that the criminal law as a remedial abso- lutely ultimatum applied. 8 Robert John Zagar, “Delinquency Best Treatments: How to Divert Youths from Violence While Saving Lives and Detention Costs”, Behavioral Sciences & The Law, Vol. 31 No. 3rd June 2013, page 385. 9 Douglas Abrams, “A Primer on Juvenile Protective Le- gislation”, Juvenile and Family Court Journal, Vol. 65 No. 3rd September 2014, page 25. 10 Shelly Jackson, Janet Warren, dan Jessica Jones Coburn, “A Community-Based Model for Remediating Juveniles Adjudicated Incompetent to Stand Trial: Feedback From Youth, Attorneys, and Judges”, Juvenile and Family Court Journal, Vol. 65 No. 2nd January 2014, page 25. 11 John Muncie, “International Juvenile (in) Justice: Penal Severity and Rights Compliance”, International Journal for Crime, Justice and Social Democracy, Vol. 2 No. 2nd July 2013, page 55. Criminal Justice System of Children: An Overview Restorative Justice Concept... 77 Figure 2. Diversion Process under Law 11/2012 Source: Processed Under Law 11/2012 The SPPA Concept of Restorative Justice in Other Countries The SPPA concept of restorative justice in Indonesia also set up in other countries like Illi- nois, Germany, Canada, Austria, Poland, and Spain. As for the age limit for children who are dealing with the law in those countries is as follows: Table 5: Limitation Age of Children dealing with Law in Other Country Age (Years) Country 14-18 Germany, Austria 10-16 Illionois, United States 12-18 Canada 16-18 Spain 15-17 Poland Source: Processed from Several Sources The SPPA Concept of Restorative Justice in Illinois, United States Provisions of the SPPA in Illinois, the Uni- ted States set in the Illinois Juvenile Court Act of 1987 which amended through the Juvenile Justice Reform Provisions of 1998. As for such a significant change is the adoption of restorative justice or negotiations (balanced or restorative 12 Korey Wahwassuck, “The New Face of Justice: Joint Tri- bal-State Jurisdiction”, Juvenile and Family Court Jour- nal, Vol. 60 No. 1st December 2009, page 15. 13 Erna Olafson dan Julie Kenniston, “Obtaining Informa- tion From Children In the Justice System”, Juvenile and justice orientation). The implementation of res- torative justice through versioned also applied in 17 areas in Illinois but not yet in the entire region.12 The implementation of the principle of ba- lanced and restorative justice seeks to balance all the affected parties of any crimes committed by children, as victims, perpetrators, and com- munities. The purpose of the concept of resto- rative justice or negotiations (balanced or res- torative justice orientation) is as follows in Tab- le 6.13 The Prosecutor in children’s condem- nation will provide the opportunity for the de- fendant to undergo a program of restorative jus- tice through the system are versioned. As for restorative justice programs through the diver- sion system offered in Illinois, among other com- munity mediation panels, negotiations between the victim and offender, social services pro- grams, restitution, and other programs that can provide opportunities for children to be respon- sible for his actions at once aimed at rehabili- tation and restoration without the need through the judiciary.14 Community mediation panels Family Court Journal, Vol. 59 No. 4th November 2008, page 80. 14 Illinois Criminal Justice Commission, 2012, Policies and Procedures of The Illinois Juvenile Justice System, Chi- cago: Illinois Criminal Justice Information Authority, pa- ge 10-12. 78 Jurnal Dinamika Hukum Vol. 15 No. 1, January 2015 forms by the country’s lawyers to provide an op- portunity for members of the community to be involved in child delinquency which is through community involvement is expected to help the child understand the seriousness of the acts that he did, and the effects of his actions to the public. Table 6. The Purpose of Restorative Justice Concept in Illinois Form as Accountability Security Community Development of Competencies The concept of restorative justice or negotia- tions (balanced or restorative justice orien- tation) is intended to provide the opportu- nity for the child to being able the perpetra- tors responsible for the crimes that have been made and simultaneously provide the opportunity for players to improve his offen- se. The concept of restorative justice or negotiations (balanced or restorative justice orientation) is keep the security community. The security community can be created with this principle by means of building relationships and strengthening communities to take on the role for the welfare of its members. The concept of restorative justi- ce or negotiations (balanced or restorative justice orientation) seeks to improve the competen- cies of competence the princi- pals that can be useful for social life. Sumber: Olafson and Kenniston The SPPA Concept of Restorative Justice in Germany Children’s condemnation in Germany is re- gulated in the Code of Criminal Law (article 46a), the Code of Criminal Procedure (article 153a) and the Juvenile Justice Act 1953 as amended Youth Court Law Amendment Act 1990. Article 45 and article 47 of the Juvenile Justice Act 1953 as amended Youth Court Law Amendment Act 1990 makes it clear that the Prosecutor and judge must consider measures of non-condemnation compared to the overthrow of the criminal. In Brandenberg, the Prosecutor must refer any case children toward good mediation out- side the courts or special case of children use a mediator to conduct mediation in juvenile court. If the mediation is successful, then the Prosecutor will terminate the case in respect of crimes committed are not serious, while serious crime for which the perpetrators have signi- ficant criminal records then the public prose- cutor must still process such still pay attention to the results of mediation.15 The SPPA Concept of Restorative Justice in Canada Section 717 Criminal Code and The Young Offenders Act 4 of 1984 set about restorative justice through versioned on children’s condem- nation. The existence of such provisions effect- ed because the police and the Court considers criminal justice was not in accordance with the principle of the best interests of the child or the public. Therefore, it takes a step outside the court that can encourage the involvement of families and communities in solving cases, i.e. through restorative justice programs. These are some programs restorative justice for criminal offenders, as follows:16 Table 7: Restorative Justice Programs for Children in Canada Program Description Pre-Charge Restorative Program A move made after a child caught doing the deed, but on condition that certain criminal police would not specify the perpetrators as a defendant. As for the conditions that must be met is that the offender must be willing to participate in the pre-charge restorative programs defined as a form of accountability. In addition, the police can also recommend family actors to participate in this program. Post-Charge Restorative Program A move made after the offender has children is officially designated as a defendant in a court procedure but has not started yet. 15 Arthur Hartmann, “Victim-Offender-Mediation in Germa- ny”, British Journal of Community Justice, Vol. 6 No. 2nd April 2008, page 145. 16 Andrew Becroft, “Children and Young People in Conflict With The Law: Asking The Hard Questions”, Juvenile and Family Court Journal, Vol. 57 No. 4th September 2006, page 25. Criminal Justice System of Children: An Overview Restorative Justice Concept... 79 Post Sentence Program A move made after the offender has been sentenced by a juvenile court. In the verdict, the judge may decide that the offender participate in certain programs as part of the punishment, or in addition to punishment. Youth Justice Committees Juvenile Court Committee is one of the program’s implementation of the principles of restorative justice in the criminal process. In this case the members of the Committee met with the victim, the defendant’s son, and parents (both the defendant and the victim) to negotiate the best course of action that can be performed by actors in order to improve his offense. In addition, the Committee also takes care of the implementation program of pre-and post-charge given to the perpetrators. Further, the Committee will ensure there is community support to child abusers by means of involving actors in social activities and schedule of certain members of the public to provide mentoring and supervision. The Committee will also assist coordination between child protection agencies by the SPPA. Restorative Conferences Restorative talks provided for in Section 19-Young Offenders Act 1984. The talks are aimed at increasing the involvement of the victim and members of the community in the criminal case of the child. As for the negotiations are negotiations involving restorative principals, orban, and members of the community and produce a verdict which is to provide compensation to victims for acts committed by the offender. As for the kinds of negotiations can be restorative (i) family group conferences; (ii) youth justice committee, (iii) reconciliation between the victim and the offender; (iv) sentencing circles17; (v) community accountability panels18; and (vi) inter-agency case conferences. As for the purpose of these negotiations is to provide opinions on the type of the corresponding punishment that can be meted out to the perpetrators. Source: Becroft The SPPA Concept of Restorative Justice in Austria Children’s condemnation Austria is regu- lates in article 7 and article 8 the Juvenile Act of 1988. The implementation of restorative jus- tice in Austria is carried out through the media- tion of the penal (Victim-Offender Mediation) in which the final outcome of mediation was repor- ted to the public prosecutor. Mediation can be done directly, where victims and perpetrators are present together, or indirectly, where the victim and the offender does not meet the facili- tated by the mediator (shuttle mediation).1917 The SPPA Concept of Restorative Justice in Po- land Poland does not control the restorative justice expressly in the Juvenile Justice Act, ho- wever indirectly steel penal mediation for crimi- nal offenders committed by juvenile court judge or by a registered mediator. Mediation is done in the early stages of the trial in order to reach an agreement on how the offender can account for his actions. The results of the mediation will be strengthened in the judge’s ruling. Results on mediation in General may include actions that can be performed by the offender accountable for his actions but still has elements of edu- cational, non-conditional, or returned to the pa- rents.20 The SPPA Concept of Restorative Justice in Spain The application of the concept of restora- tive justice through versioned in system child- ren’s condemnation is regulated in Law 4/92 as amended by Law 5/2000 regarding in criminal justice system for children. Basically penal me- diation can be used in 2 ways:21 17 In this case, victim, offender, family, and community members meet the judges, lawyers, and others to give recommendation for the judge about the kind of punish- ment that should be accepted by the offender. 18 A negotiation which was attended by community leaders, perpetrators, victims (if wanted), and parents actors to reach an agreement fixes the error. 19 Gordon Bazemore, Jay Zaslaw, dan Danielle Riester, “Be- hind the Walls and Beyond: Restorative Justice, Instru- mental Communities, and Effective Residential Treat- ment”, Juvenile and Family Court Journal, Vol. 56 No. 1 January 2005, page 60. 20 Anna Mestitz, “Organisational Features of Victim-Of- fender Mediation with Youth Offenders in Europe”, Bri- tish Journal of Community Justice, Vol. 6 No. 2 April 2008, page 66. 21 Lindsay Arthur, “Tomorrow’s Choices”, Juvenile and Fa- mily Court Journal, Vol. 61 No. 3 July 2010, page 30. 17 80 Jurnal Dinamika Hukum Vol. 15 No. 1, January 2015 Table 8: Limitation of Children Age Dealing with Law in Other Country As a form of Diversion by Prosecutors Before the case is tried Upon request of the public prosecutor or the other Parties For Delays Condemnation by the Court until the Penal Mediation Completed The public prosecutors can refer to penal mediation implementation allows the perpetrator to fix or show his desire to improve his offense to the victim. In this case, the public prosecutor shall not take any action to force abusers as well as meet its stated in the mediation agreement. In this case, the judge will ask mediator of the initial report stated that the case deserves to do mediation. When the mediation has been completed and there has been agreement on a results agreement of mediation, the mediator shall submit a final report to the judge and the judge will consider the results of the mediation decision whether mediation is appropriate decision or need to be sentenced to another. Source: Arthur Closing Conclusion The enactment of Law 11/2012, the SPPA in Indonesia has implemented the concept of restorative justice through versioned. This pro- vision simply accommodate the concept of res- torative justice through diversion system with thrust of things regarding: (a) the obligation to give precedence to the completion of the child through the process of criminal diversion; (b) the duty of every law enforcement agencies to seek diversion at every level examination; and (c) the existence and tasks of professional social workers, social welfare personnel, as well as the community supervisor. As for the diversion pro- cess is done through deliberations involving the child and the parent/guardian, the victim and/ or parent/guardian, the civic, and the super- vising social workers professionals. Deliberation can involve social welfare personnel, and/or the community, in the event it is necessary. Besides Indonesia, many in other countries are first applied the concept of restorative jus- tice through versioned. In General, any other country done diversion for the best interests of the child (the perpetrators) are implemented in the form of mediation. Children are expected to account for his actions without going through the courts. Suggestion Needed the support of the various parties in order to implement the concept of restorative justice through the system are versioned. The support, among others, as follows: Makers of Laws and Regulation Law Enforcement Officers Community To speed up the formation of a go- vernment regulation that governs technically on the implementation process of the diversion, the proce- dures, the implementation and coor- dination of versioned, as mandated in article e15 of ACT 11/2012. In the future, the law enforcement agencies would also have to change the paradigm of retributive to resto- rative in the resolution of criminal cases. In addition, it would also in- crease the capacity and quality of the law enforcement officers throu- gh adequate education and training, in order that the process carried out in accordance with the diversion ap- proach the concept of restorative justice which is ideal. To improve the effectiveness of the imple- mentation of the concept of restorative jus- tice through versioned system then needed an increase in community awareness regar- ding the understanding of children’s rights and the process of diversion. So it can be created in common views and community participation in the protection of the right of the child through the process of diversion. In addition, it takes the cooperation with the community to provide support and accept the criminal perpetrators of the community again. Bibliography Abrams, Douglas. “A Primer on Juvenile Protec- tive Legislation”. Juvenile and Family Court Journal. Vol 65 September 2014; Arthur, Lindsay. “Tomorrow’s Choices”. Juveni- le and Family Court Journal. Vol. 61 No. 3 July 2010; Bazemore, Gordon, Jay Zaslaw, dan Danielle Riester. “Behind the Walls and Beyond: Restorative Justice. Instrumental Commu- nities, and Effective Residential Treat- ment”. Juvenile and Family Court Jour- nal. Vol. 56 No. 1 January 2005; Bazemore, Gordon dan Susan Day. “Restoring the Balance: Juvenile and Community Jus- Criminal Justice System of Children: An Overview Restorative Justice Concept... 81 tice”. Journal of the Office of Juvenile Justice and Deliquency Prevention. Vol. 3 No. 1 March 2010; Becroft, Andrew. “Children and Young People in Conflict With The Law: Asking The Hard Questions”. Juvenile and Family Court Journal. Vol. 57 No. 4 September 2006; Buffington, Kristine Carly Dierkhising, and Shawn Marsh. “Ten Things Every Juvenile Court Should Know About Trauma and Delinquency”. Juvenile and Family Court Journal. Vol. 61 No. 3 August 2010; Coppins, Vanessa, Sharon Casey, dan Allan Cam- pbell. “The Child’s Best Interest: A Review of Australian Juvenile Justice Legisla- tion”. The Open Criminology Journal. Vol. 1 No. 4 August 2011; Hartmann, Arthur.“Victim-Offender-Mediation in Germany”. British Journal of Commu- nity Justice. Vol. 6 No. 2 April 2008; Illinois Criminal Justice Commission. 2012. Poli- cies and Procedures of The Illinois Juve- nile Justice System. Chicago: Illinois Cri- minal Justice Information Authority; Jackson, Shelly, Janet Warren, dan Jessica Jo- nes Coburn. “A Community-Based Model for Remediating Juveniles Adjudicated In- competent to Stand Trial: Feedback from Youth, Attorneys, and Judges”. Juvenile and Family Court Journal. Vol. 65 No. 2 January 2014; Mestitz, Anna. “Organisational Features of Vic- tim-Offender Mediation With Youth Offen- ders In Europe”. British Journal of Com- munity Justice. Vol. 6 No. 2 April 2008; Muncie, John. “International Juvenile (in) Jus- tice: Penal Severity and Rights Complian- ce”. International Journal for Crime, Jus- tice and Social Democracy. Vol. 2 No. 2 July 2013; Olafson, Erna dan Julie Kenniston. “Obtaining Information From Children in The Justice System”. Juvenile and Family Court Jour- nal. Vol. 59 No. 4th November 2008; Pinim, Sufriadi dan Erasmus Napitupulu. 2013. Studi Atas Praktik-Praktik Peradilan Anak di Jakarta. Jakarta: Institure for Criminal Justice Reform; Rosidah, Nikmah. “Pembaharuan Ide Diversi da- lam Implementasi Sistem Peradilan Anak di Indonesia”. Jurnal Masalah-Masalah Hukum. Vol. 41 No. 2 April 2012; Wahwassuck, Korey. “The New Face of Justice: Joint Tribal-State Jurisdiction”. Juvenile and Family Court Journal. Vol. 60 No. 1 December 2009; Yunus, Yutirsa. “Analisis Konsep Restorative Jus- tice Melalui Sistem Diversi Dalam Sistem Peradilan Pidana Anak Di Indonesia”. Jur- nal Rechts Vinding. Vol. 2 No. 2nd August 2013. Jakarta: Pusat Penelitian dan Pe- ngembangan Sistem Hukum Nasional Ba- dan Pembinaan Hukum Nasional; Zagar, Robert John. “Delinquency Best Treat- ments: How to Divert Youths from Violen- ce While Saving Lives and Detention Costs”. Behavioral Sciences & The Law. Vol. 31 No. 3 June 2013; Zulfa, Eva Achjani. “Keadilan Restoratif dan Revitalisasi Lembaga Adat di Indonesia”. Jurnal Kriminologi Indonesia. Vol. 6 No. 2nd August 2010. 
work_h6a7pftyozeftm2ts7zj2ptxme	----	Rights, Duties and the Separateness of Persons Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rppa20 Philosophical Papers ISSN: 0556-8641 (Print) 1996-8523 (Online) Journal homepage: https://www.tandfonline.com/loi/rppa20 Introduction: Globalizing or Transcending Global Justice? Uchenna Okeja To cite this article: Uchenna Okeja (2017) Introduction: Globalizing or Transcending Global Justice?, Philosophical Papers, 46:1, 1-11, DOI: 10.1080/05568641.2017.1295615 To link to this article: https://doi.org/10.1080/05568641.2017.1295615 Published online: 21 Mar 2017. Submit your article to this journal Article views: 372 View related articles View Crossmark data Citing articles: 2 View citing articles https://www.tandfonline.com/action/journalInformation?journalCode=rppa20 https://www.tandfonline.com/loi/rppa20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/05568641.2017.1295615 https://doi.org/10.1080/05568641.2017.1295615 https://www.tandfonline.com/action/authorSubmission?journalCode=rppa20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=rppa20&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/05568641.2017.1295615 https://www.tandfonline.com/doi/mlt/10.1080/05568641.2017.1295615 http://crossmark.crossref.org/dialog/?doi=10.1080/05568641.2017.1295615&domain=pdf&date_stamp=2017-03-21 http://crossmark.crossref.org/dialog/?doi=10.1080/05568641.2017.1295615&domain=pdf&date_stamp=2017-03-21 https://www.tandfonline.com/doi/citedby/10.1080/05568641.2017.1295615#tabModule https://www.tandfonline.com/doi/citedby/10.1080/05568641.2017.1295615#tabModule Philosophical Papers Vol. 46, No. 1 (March 2017): 1-11 ISSN 0556-8641 print/ISSN 1996-8523 online © 2017 The Editorial Board, Philosophical Papers DOI: 10.1080/05568641.2017.1295615 http://www.tandfonline.com Introduction: Globalizing or Transcending Global Justice?1 Uchenna Okeja Global justice is one of the areas in contemporary political philosophy where one can guarantee almost without error that interesting conferences and new publications will jostle for the attention of scholars every new month. The diversity and widespread interest in this topic notwithstanding, an important issue that is hardly scrutinized is the way the story unfolds. In most cases, the texts on global justice begin with a narrative about how John Rawls classic, A Theory of Justice (1971) and the responses to it, most especially by Charles Beitz and Thomas Pogge, led Rawls to restate his views in another book, The Law of Peoples (1999). The narrative would then continue by making clear that the issue at stake is the contention regarding the possibility of extending Rawls’ notion of distributive justice beyond the context he envisaged—within nations. Depending on the dispositions and perspicacity of the author, the story of global justice then fragments at this point into distinct positions, with some authors professing to be cosmopolitans, others statists and, a few, the faithful proponents of all the in-betweens of the two divide. Understood this way, the idea of global justice would seem to have developed and progressed without any meaningful disjunction, the implication being that the provenance of the field is apparent and settled. In other words, the impression given is that there is an ‘official’ narrative regarding the idea of global justice we can harness when we 1 Over the years, my engagement with the idea of global justice and the broader field of political philosophy has profited from discussions with many colleagues. I thank Philipp Schink, Dorothea Gädeke, Matthias Lutz-Bachmann, Paul Nnodim, Katrin Flikschuh, Ward E. Jones, Anke Graness, Julian Culp and Scott E. Hendrix for sharing their perspectives with me and compelling me to clarify my views. 2 Uchenna Okeja develop syllabi for courses on the topic. This makes it unsurprising to encounter people who wrote their PhD on global justice but have little knowledge beyond Rawls and the fragmented positions emanating from disagreements about his views on the scope of distributive justice. For people culturally and physically outside the context of this ‘settled’ narrative, engaging in the debate on global justice would necessarily invite questions. People interested in the sort of philosophy done outside the space where this settled narrative is embedded will have a hard time making sense of the parochial universalism of this ‘official’ narrative. To this end, a special issue on ‘African philosophy and global justice’ needs contextualization. For anyone aware of developments in the discourse on global justice, it should be clear that very little plurality exists with regard to the theoretical traditions informing the discourse. Comparative studies are few and far between. This leads people interested in African philosophy to query global theorists’ lack of engagement with African philosophy. Put differently, why are people working on African philosophy not visible participants in the discourse on global justice, given especially the trajectory of this tradition of philosophy? One could, of course, hypothesize different reasons to explain the situation. It could be argued, for instance, that this lack of engagement is the result of uncertainty in African philosophy regarding who or what to engage with. Another possible explanation could be that global justice does not address the philosophical concerns of African philosophers. One could also hypothesize that the problem lies in the dearth of relevant resources in African philosophy— essentially, a sort of hermeneutic handicap. In addition, it could be argued that African philosophers are simply not philosophically productive with regard to questions about global justice. Even if one were to accept these explanations as plausible (although they are not, as I will point out anon), that would still not provide a satisfactory answer to the question regarding the little contact between global justice discourse and African philosophy. This is because a tradition of philosophy could be part of a global discourse as a result of Introduction: Globalizing or Transcending Global Justice? 3 its theories being harnessed by philosophers from anterior traditions. Most often, the purpose of engaging with other traditions of thought is to sharpen the inter-contextual validity of propositions—basically an attempt to refine the philosophical propositions we put forward by relating them to contexts other than our own. Western philosophical perspectives have been integrated, for instance, into contemporary philosophical discussions about the nature and scope of freedom in Asian as well as in African philosophy. Thus, it does not suffice to say that the reason African philosophy is ignored in important philosophical debates, such as the one on global justice, is because African philosophers do not actively contribute their perspectives to the discourse. It would of course be desirable for them to do so, but given that African philosophy is a tradition of philosophy accessible to anyone interested, its resources are available to be critically integrated into important debates by philosophers from anterior traditions. There is nothing stopping a theorist of global justice, whose work is embedded in Western philosophy, from engaging with Odera Oruka, Ifeanyi Menkiti, Kwasi Wiredu and other renowned African philosophers. In sum, what I am trying to point out here is that the possible failure of African philosophers to engage with the discourse on global justice does not absolve theorists of global justice from their failure to engage with the resources in African philosophy. Perhaps the whole question regarding the failure to engage with African philosophy in the discourse on global justice is wrong or even perverse. It is surely odd to ask someone who does not speak to you to explain their silence. Certainly, that would only happen if the person is a subordinate. By implication, therefore, it could be argued that it is condescending and futile to inquire into the reasons that account for the silence of African philosophy in the discourse on global justice. I grant that this is an important perspective to consider. However, it seems to me that there is a nexus between the trajectory of African philosophy and the discourse on global justice that should make them natural dialogue partners. And this relates not just to the linguistic proximity of 4 Uchenna Okeja both the practitioners of African philosophy and the prominent theorists of global justice (like majority of the works on global justice, most of the works in African philosophy are in English and French), but, most essentially, to the questions discussed in both contexts of inquiry. Global justice explores the unjust nature of the inequality of the world in which we live. Its central question pertains to how global inequality should be addressed from the perspective of justice. Bruce M. Landesman recounts that global justice asks the following questions: ‘Should we have a more equal world? Should we have a world in which everyone can provide for their basic needs and have their basic rights protected? Should we have a world in which people are roughly equally well off regardless of where they live? Or is the global inequality that now exists, or some ameliorated version of it, morally acceptable and just?’ (Landesman 2011: 421). It should occur to anyone attempting to address these questions that one of the most viable starting points would be to investigate the theories deployed to explain this situation by the agents who bear the brunt of the impacts of the unequal and unjust world at the center of global justice discourse. As Anke Graness (2015: 128) rightly noted, ‘about 20 years before it started to be a central topic in the Euro- American debates of the late 1990s, the Kenyan philosopher Henry Odera Oruka (1944–1995) used the concept of global justice in two key articles, “John Rawls Ideology: Justice as Egalitarian Fairness” (1981) and “The Philosophy of Foreign Aid: A Question of the Right to a Human Minimum” (1989).’ It is worth noting that Oruka’s systematic interest in issues relating to global justice was such that he continued to revise his position. For instance, he updated the perspective he put forward in his paper on ‘The Philosophy of Foreign Aid’ mentioned in the citation above in order to take into account Garett Hardin’s life boat ethics and ‘the concerns of the environmentalists in the 1980’s and 1990’s’ (Oruka 1993: 22–23). Apart from Oruka’s work, there are numerous instances in African political thought that have sought to analyze and critique the unjust arrangement of the world, most especially the unequal power relations that lie at the foundation of the Introduction: Globalizing or Transcending Global Justice? 5 problem of poverty. Kwame Nkrumah, for instance, made the following observation as far back as 1966 ‘Africa is a paradox which illustrates and highlights neo-colonialism. Her earth is rich, yet the products that come from above and below her soil continue to enrich, not Africans predominantly, but groups and individuals who operate to Africa’s impoverishment’ (Nkrumah 1965: 1). He even went on to provide the sort of statistics that we find in the works on global justice discourse— figures that show the dire nature of the poverty, inequality and injustice characteristic of the world in which we live. Yet, the literature on neo- colonialism, the ethical problems related to structural adjustment programs in the third world, dependency theories and liberation philosophy have hardly found their way into mainstream theorization of global justice. Although a special issue on African philosophy and global justice cannot remedy all of the cognitive inaccuracies and moral misperceptions engendered by the neglect of African and other non- Western philosophical traditions in the current discussion of global justice, what it can surely do is to begin the conversation. But to do this, it is essential to highlight some of the reasons that account for the lack of engagement with African philosophy in the mainstream discussion of global justice. To be sure, it is simply not the case, as hypothesized earlier, that there is no clarity in African philosophy regarding who or what to engage with when it comes to the question of global justice. Clarity regarding who or what to engage with emerges when we consider that African philosophy designates a critical and systematic reflection on the fundamental questions of life within the context of African experience. Thus, the concerns of the discipline will necessarily include, among other things, the African experience of the social and material conditions of existence. This means that the resources in African philosophy attempting to make sense of the social, political and material conditions of life are apt to provide penetrating insights into the disadvantage occasioned by the experience of global injustice. Against this background, I do not see the way the initial hypothesis alluded to 6 Uchenna Okeja above will explain the lack of engagement with African philosophy by theorists of global justice. Odera Oruka offers a meaningful explanation of the status quo. He avers that ‘in philosophy, different perspectives can have dialogue only if each of the promoters of one perspective appreciates and respects the seriousness of the perspective of a different person or group’ (Oruka 1990: 36). He explains further that even where this criterion is met, there is still need for a referee ‘to conduct and judge the dialogue.’ Although this role has, up till now, been played by history, ‘many have been reading history wrongly or biasedly. They have read history to find a justification for their perspective and special position. That position can be of a conviction that one is a master or servant’ (Oruka 1990: 36). To solve this problem, Oruka proposed a way out, namely, that we should ‘use history to create a new history’ (Oruka 1990: 36). When we contextualize Oruka’s remarks, it could be argued that the history of Western philosophy is one of the factors precluding theorists of global justice from engaging with non-Western philosophies, such as African philosophy. If one insists on limiting philosophy proper only to the texts whose provenance is traceable in some clear ways to Thales, the proto philosopher, then, for that person, engagement with non-Western philosophy will remain an undesirable illusion. Beyond what Oruka pointed out, however, I am persuaded that there are some important reasons embedded in the contemporary practice of African philosophy that account for the lack of engagement with it in theorizing global justice. As I have argued elsewhere (Okeja 2017), ‘just like many contemporary African novelists who use their African experiences and background as resources for their work but are hardly accessible to their African audience, contemporary African philosophers are mostly not in conversation with one another and their context.’ African philosophers are mostly dislocated today because their works, in most cases, seek to conform and address a non-African audience. One chief reason for this is the guidelines regulating research and career progression in African universities. The corporatized African university Introduction: Globalizing or Transcending Global Justice? 7 today requires that African scholars, philosophers included, must publish in so-called accredited journals with impact. The outcome of this practice is the waning of the internal debate among African philosophers. Without a robust internal debate in a tradition of philosophy, it will be difficult to draw the attention of philosophers working in anterior traditions. Where African philosophers are in conversation, the engagement often whittles down into mutual admiration or suspicion. Compared to what obtained in the discussions among first generation postcolonial African philosophers in journals, such as Second Order and Quest, there is a general lack of robust discussion among contemporary practitioners of African philosophy in the academia. If African philosophy is going to be part of the discourse on global philosophical questions, part of the reason would be that it is a thriving tradition of philosophy. The implication is that African philosophers must be engaged in a robust internal and external discussion. But then, why is it desirable to engage with African philosophy in the discussion of global justice? As noted earlier, global justice attempts to grapple with questions that are reflective of the lived experience of inequality and the global injustice it engenders. Thus, recognition of the agency of the people impacted by this situation should propel a theorist dealing with this dimension of their experience to engage with the perspectives their reflection on the situation offers. Most importantly, however, engagement with African philosophy by theorists of global justice is imperative due to the promise of global philosophy. Thom Brooks puts this point aptly. As an ‘unbounded approach to philosophy’, Brooks avers that global philosophy is motivated by focus on ‘improved ability to address philosophical problem-solving’ (Brooks 2013: 258). It ‘is about our having an openness for the need to pursue wider engagement in order to improve potential argumentative power … [it] is not about speaking to all traditions but rather about speaking with diverse traditions’ (Brooks 2013: 262). In contrast to comparative philosophy, global philosophy does not aim to ‘compare and contrast 8 Uchenna Okeja but to uncover new philosophical insights in order to further develop our own tradition’ (Brooks 261). Notwithstanding the merits of Brooks’ proposals about the benefits of global philosophy, it is essential to underscore that what counts is substantive engagement with diverse traditions in the quest for philosophical understanding of global problems—such as poverty, global justice, identity, terrorism etc. As Leigh Jenco pointed out, engagement with other traditions often highlights the aspects that resonate with ‘Western categories, rendering non-Western ideas, thinkers and traditions interesting as case studies but not themselves the domain of theorizing’ (Jenco 2010:9). This definitely is not a viable approach. A substantive approach is one that pays attention to the contextual dynamics of anterior thought traditions, the goal being to understand, rather than to dismiss or uncritically appropriate. Even with these elucidated points, questions could still be raised about the African philosophy one should engage with, the point being that Africa is ‘big’ and thus entails the existence of a plurality of philosophical perspectives. In effect, the idea is that the diversity of ethnic groups in Africa makes unclear which ‘African’ philosophy one should engage with. Effectively, what is implied is the ‘Africanness’ of African philosophy. Given that this issue has been explored by many African philosophers, the remark I should note in this regard is that this concern is not useful because it is incoherent. And I say so for two reasons. First, it equates African philosophy with ethnic philosophies or worldviews. This is clearly wrong and prejudicial. Secondly, it creates a duty of information for an external other in order to exonerate the powerful ignorance of the subject articulating the position. Since African philosophy designates written and oral texts that are accessible to people, the onus is on the subject of knowledge to inquire further about the insights it offers. Redirecting the discourse on global justice through engagement with other traditions, such as African philosophy, is certainly not a favor to non-Western philosophers. Hamid Dabashi is certainly right to Introduction: Globalizing or Transcending Global Justice? 9 emphasize that many non-Western theorists ‘are no longer interested in whatever it is [European philosophers] fancy to be “hegemonic” or “counter-hegemonic” in Europe and for Europeans’ (Dabashi 2015: 4). The West has become provincialized, hence, its grand narratives about universal philosophical theories, which are all too often parochial, have lost their magic. In global philosophy, it is offered another opportunity to reimagine itself as an equal partner in dialogue without any supercilious pretensions. The essays in this special issue provide substantive engagements with aspects of global justice within the context of African philosophy. Ifeanyi I. Menkiti’s paper titled ‘Africa and Global Justice’ analyzes the ways justice is employed and the complexities involved. He makes clear that it is essential to delimit the scope of justice in order to understand the place of mercy. Aptly, he concludes that ‘for Africans, the choice then remains to join the debate on the peoples’ side of things, not on the states’ side. As peoples, Africans have already attained standing, but as states their grounding is precarious, the battles they are supposed to be fighting ethically suspect.’ Katrin Flikschuh’s paper extends the discussion by exploring the desirability or otherwise of African thinkers’ engagement in the discourse on global justice, given the neglect of their tradition in the mainstream discourse. Her careful analysis shows the dimensions of the parochial universalism of Western philosophy, the formidable challenge it received from African philosophers and the implications of this experience for global justice discourse. Dennis Masaka’s paper discusses the problem of epistemic injustice, the goal being to show that epistemicide is an injustice whose neglect does not conduce to any talk about global justice. He accounts for the link between unequal power relations between the global North and global South and epistemic hegemony. He aims in this regard to show that epistemic parity should be the prolegomena to any viable discussion of global justice. Michael Onyebuchi Eze recalls cosmopolitanism from its wondrous sojourn in the far lands of the world to face a basic challenge—how 10 Uchenna Okeja should we live with the stranger ‘beyond the requirement(s) of the law’? Traversing a range of issues and positions in the discourse on cosmopolitanism, Eze shows that what is at stake is to determine ‘who we can become as ethical beings’. Thaddeus Metz confronts development theory and practice within the context of a carefully formulated theory of an African ethic. Given the idea of communion or communalism characteristic of African mode of being, what are the plausible implications we can infer for the discourse on development? He examines this question in order to point out a viable grounding of ‘social progress’ and ‘what justice demands from the West in relation to Africa.’ Edwin Etieyibo provides an account of a cosmopolitan moral and political theory based on Ubuntu. On the basis of Ubuntu cosmopolitanism, he explored the grounds of the duty and obligations we owe to other human beings. Helen Lauer pursues another important goal in her paper. She deploys the resources of West African social and political practice to show, among other things, that global justice is a process, which means that it is a work in progress. Rhodes University U.Okeja@ru.ac.za References Anke Graness, ‘Is the Debate on “Global Justice” a Global One? Some Considerations in View of Modern Philosophy in Africa,’ Journal of Global Ethics 11: 1 (2015), 126–140. Bruce Landesman, ‘Global Justice’ in: Deen K. Chatterjee (ed.), Encyclopedia of Global Justice (Dordrecht: Springer 2011). Charles Beitz, Political Theory and International Relations (Princeton, N.J.: Princeton University Press 1979). H. Odera Oruka, ‘Parental Earth Ethics,’ Quest: An International African Journal of Philosophy, Vol. 7, 1 (1993), 20–27. Hamid Dabashi, Can Non-Europeans Think? (London: Zed Books 2015). Henry Odera Oruka, ‘Cultural Fundamentals in Philosophy: Obstacles to Introduction: Globalizing or Transcending Global Justice? 11 Philosophical Dialogues,’ Quest: An International African Journal of Philosophy, Vol. 9, 2 (1990), p. 21–37. John Rawls, A Theory of Justice (Oxford: Oxford University Press 1971). John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999). Kwame Nkrumah, Neocolonialism: The Last Stage of Imperialism (New York: International Publishers Co. Inc. 1966). Leigh K. Jenco, Making the Political: Founding and Action in the Political Theory of Zhang Shizhao (Cambridge: Cambridge University Press 2010). Thom Brooks, ‘Philosophy Unbound: The Idea of Global Philosophy,’ Metaphilosophy, Vol 44, 3 (2013), 254–266. Thomas Pogge, Realizing Rawls (Ithaca: Cornel University Press 1989). Uchenna Okeja, Consensus and Palaver as Metaphors for the Public Sphere in: Murad Idris, Leigh Jenco and Megan Thomas (eds), Oxford Handbook of Comparative Political Theory (Oxford: Oxford University Press) Forthcoming. 
work_h7gtb4bebffwtbzligrbvczgxy	----	To imagine and pursue racial justice To imagine and pursue racial justice Matthew Desmonda* and Mustafa Emirbayerb aSociety of Fellows, Harvard University, Cambridge, USA; bDepartment of Sociology, University of Wisconsin, Madison, USA At the conclusion of many courses on race and racism, students, having learned, some for the !rst time, about the existence, origins, and complex dimensions of racial domination in America, are left pondering their next steps. ‘What is to be done?’ many ask. ‘And what, exactly, is it that we want?’ Important as they are, these questions too often are given insuf!- cient attention, usually addressed at the end of the semester, sometimes only on the !nal day of class. And students inquiring about the most effective ways to strive toward racial justice are at a loss to !nd a single comprehensive source that provides them with basic analytical guidance about the goals one should work toward (the ends) or the strategies one should employ to achieve those goals (the means). We believe that stu- dents would bene!t greatly from such a source, and we attempt to offer one here. To effectively address racial domination, we argue, one must have not only an idea of the means with which to struggle on behalf of a reconstructed racial order, but also an idea of the ends for which one is struggling. Accordingly, in the !rst major section of this article, we spec- ify three ends: (1) a society where racial domination is addressed intelli- gently; (2) a society that embraces racial justice in all its arenas; and (3) a society that values and practices multiculturalism – offering a glimpse of what a society without racial domination might look like. In the following section, we specify the means – emphasizing four levels or sites of change having to do with: (1) ourselves; (2) our inner circle; (3) our institutions; and (4) our nation – offering some guidance as to how we each can do our part to bring forth a more racially just society. Although we believe this article will provide guidance for advanced scholars and instructors, we have composed it primarily with a broader audience in mind. Keywords: multiculturalism; racial justice; race politics Personal and civic responsibility No, you weren’t there. You weren’t there when European tradesmen kid- napped families from Africa and shipped them across the ocean, tossing the *Corresponding author. Email: mdesmond@fas.harvard.edu Race Ethnicity and Education Vol. 15, No. 2, March 2012, 259–289 ISSN 1361-3324 print/ISSN 1470-109X online ! 2012 Taylor & Francis http://dx.doi.org/10.1080/13613324.2011.578124 http://www.tandfonline.com D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 dead and sick overboard, to be separated and shackled, branded and beaten and worked. It wasn’t your idea to destroy American Indians’ way of life, to steal their land, to outlaw their religion, to enforce a system of coloniza- tion that brought them to extinction’s cliff-edge. ‘Manifest Destiny’ was not your cry; you did not load your guns and push the people of Mexico back until Texas and California were ours. You had nothing to do with America’s racist citizenship requirements, which tore so many Asian families apart and led to the brutal exploitation of Asian workers. It wasn’t your idea. Blood is not on your hands. It is true: None of us are personally or directly responsible for the wrongs in"icted by – or to – our ancestors. But all of us are responsible for repairing the damage, for cleaning up the mess. Why? Because responsibil- ity is more – so much more – than simply our duty to answer for deeds we ourselves commit. We can distinguish between personal and civic responsi- bility (Arendt 2003). Personal responsibility is connected to things directly asked of you and wrongs you have committed. If you are a student, it is your personal responsibility to attend lectures and complete assignments; if you steal your roommate’s laptop, it is your personal responsibility to return it and make things right. Civic responsibility, on the other hand, is connected to your ability – your power – to change your community and beyond. Whereas personal responsibility has to do with your connection to the problem, civic responsi- bility is about your connection to the solution. If a heavy storm causes a levee to break and "ood waters to come rushing toward your town, you are not personally responsible for the "ood, of course, but you are civically responsible for protecting your town and its citizens. It is not the levee, but the sandbag, that has your name on it. The idea of civic responsibility implies that we have an obligation to people other than ourselves and our close friends and family. It means that we have an obligation to justice; that we are responsible for the dispos- sessed. This fact remains even if we had nothing to do with bringing about their dispossession. But, honestly, how many of us – white and non-white alike – can claim to have nothing to do with the suffering of others? You weren’t there at the beginning, that’s true enough. But, as scholars have shown, accumulation and disaccumulation, privilege and disadvantage, are inseparable (Brown et al. 2003). Where were your shoes, shirt, and under- wear made? Didn’t part of the money you paid at the mall !nd its way into the pockets of those running sweatshops in New York City’s Chinatown or on the Mexican border? Do you clean your apartment with chemicals devel- oped in the poor black communities of the Mississippi Delta? Where does your trash go? Is it dumped on an American Indian Reservation nearby? Do you secure a feeling of safety by backing ‘tough on crime’ politicians, who build more prisons and lengthen mandatory sentences, causing poor blacks and Latinos to bear the brunt of their scourge? Do you wallow only in your 260 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 own oppression, refusing to reach out to – or even to notice – other people under the hard heel of domination? Do you believe that your pain is great- est, a conviction that only forti!es racial domination by eroding the possibil- ity of interracial and interethnic coalitions and by causing rifts between blacks and Latinos, Chinese and Koreans, poor whites and poor American Indians? Perhaps, when it comes to racial domination, personal and civic responsibility are not so easily divorced. Perhaps our hands are not as clean as we once thought. ‘But I have done nothing!’ you protest. Exactly: You have done nothing. Today, racial domination persists, not only because politicians and business- men exploit racial divisions for their own gain, but because millions of us, busy with our own lives, hunker down in the shade, indifferent to the suffer- ing of others. We might hope for the best, but we refuse to ‘stand in the bright sun and cast a long shadow,’ in civil rights activist Bob Moses’s ele- gant words. As Holocaust survivor Elie Wiesel (1986) once said, ‘The oppo- site of love is not hate; it’s indifference. The opposite of beauty is not ugliness; it’s indifference. The opposite of faith is not heresy; it’s indiffer- ence. And the opposite of life is not death, but indifference between life and death.’ We can drop bombs on civilian targets without being the one who pushes the button. We can incarcerate thousands of black men without sit- ting on the jury. We can contribute to the suffering of America’s immigrants without ever doing the deporting ourselves. Indifference is never neutrality; it is loyalty to the status quo. To quote Lorraine Hansberry, the great African American playwright, ‘The acceptance of our present condition is the only form of extremism that discredits us before our children’ (quoted in Nemiroff 1969, 72). Indifference sometimes is the product of ignorance. Some people simply do not know the nature and depth of the matter. There is a small library’s worth of research to rectify that problem. This article, by contrast, assumes that you have some grasp on racial domination – that you are familiar with its origin and history, how it penetrates various realms of society. Having familiarized yourselves with the problem of racial injustice, what do you do with all this knowledge? What is to be done? And what, exactly, is it that we want? In this article, we address these questions. The !rst section takes up a discussion of ends, some goals toward which we ought to strive. We specify three ends: (1) a society where racial domination is addressed intelli- gently; (2) a society that embraces racial justice in all its arenas; and (3) a society that values and practices multiculturalism – offering a glimpse of what a society without racial domination might look like. The second sec- tion deals with the means or strategies for achieving those goals. We specify four levels or sites of change: (1) ourselves; (2) our inner circle; (3) our institutions; and (4) our nation – and offer some guidance as to how we each can do our part to bring forth a more racially just society. To put it Race Ethnicity and Education 261 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 another way, the !rst section addresses the question: What is it we wish to achieve? The second addresses the question: And how do we achieve it? The ends Many of America’s whites believe that racial equality already has been achieved, while many of its non-whites hold that little has changed since the Civil Rights Movement and that things may be getting worse (Brown et al. 2003, 224–5). One side declares, ‘Racial harmony has arrived.’ The other side replies, ‘Racial harmony will never come.’ But the truth lies somewhere in the middle. Two things are undeniable: that racial progress in America has been nothing short of astounding and that racial domination in America has yet to be dismantled. As one sociologist has put it, ‘It can be said, unconditionally, that the changes that have taken place in the United States over the past !fty years are unparalleled in the history of minority–majority relations. . . .There does not exist a single case in modern or early history that comes anywhere near the record of America in changing majority atti- tudes, in guaranteeing legal and political rights, and in expanding socioeco- nomic opportunities for its disadvantaged minorities’ (Patterson 1998, 16). If we refuse to recognize this fact, we foster an angry spirit of cynicism and nihilism, a spirit of hopelessness that causes whites and non-whites to throw up their hands and conclude, ‘If racial equality is hopeless, then why should we do anything to !ght it?’ Change has come to America. Indeed, some ethnic con"icts viewed as intractable and eternal a mere 100 years ago hardly exist today. One thinks, for example, of the con"ict between Protestants and Catholics, or between Irish and Italians. The historical record demonstrates that what one genera- tion found unrealistic and impossible – idealistic – the succeeding generation made into reality (Du Bois 1996 [1899], 386). ‘What is considered impossi- ble today may be possible tomorrow,’ observe the authors of White-Washing Race. ‘It is well to remember that in the 1950s few Americans believed that a revolution in civil rights was just around the corner. Jim Crow seemed to be deeply entrenched, racial prejudice too formidable a presence in the minds of white Americans. Yet many people of all races vigorously opposed segregation anyway, not because they knew they would prevail, but because they believed that doing so was morally necessary. And in the end they did prevail’ (Brown et al. 2003, 248). We cannot deny the progress of the past, just as we cannot turn a blind eye to the problems of the present – or the pregnant promise of the future. Researchers and social commentators rightly have documented the (racial) troubles of today, but what does the future hold? What do we want it to hold? Social science is able to provide a much-needed picture of alternative realities. It can, in a phrase, present us with real utopias. Creative and radi- cal alternatives for society ‘grounded in the real potentials of humanity’ as 262 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 well as in social-scienti!c and historical research, real utopias are intellectu- ally rigorous, carefully designed blueprints for a better tomorrow (Wright 2003, vii–viii; see also Bourdieu 2003, 17–25). They are the end products of social change; they are realistic renderings of a society more just, equal, and moral than the one we currently inhabit. Real utopias are hopeful but not naïve; realistic but not cynical. They are what America’s founding fathers envisioned when they longed for ‘a more perfect union’; what Karl Marx had in mind when he spoke of real or ‘human emancipation’ of the working class; of what Martin Luther King, Jr. dreamt when he referred to ‘the promised land.’ (For an extended discussion of realized real utopias in the political and economic spheres, see Cohen and Rogers 1993; Wright 2010.) To work toward racial justice, we must know precisely what we are working toward. Accordingly, in what follows, we sketch three goals, three real utopias, connected to the dismantling of racial domination. This discus- sion is not a venture in prediction, the stuff of social forecasting; rather, it is an exercise of the imagination. Nor do we paint a complete picture of what a racially just society might look like, a project too rich and expansive for our purposes here. We simply sketch what we believe are three ends essen- tial to the ascension of racial justice, inviting you to !ll in the details and, with us, to imagine further possibilities. Multiculturalism The !rst end we propose is: a society that values and practices multicultur- alism. Multiculturalism – de!ned by German philosopher Jürgen Habermas (2003, 4) as ‘the equal co-existence of different cultural forms of life within one and the same political community’ – is one speci!c way in which peo- ple (especially those belonging to marginalized groups) can be incorporated into society. It breaks sharply with assimilationist logic. ‘Multiculturalism dramatically expands the range of imagined life experiences for core-group members. In doing so, it opens up the possibility not just for acceptance and toleration but for understanding and recognition. Insofar as such understand- ings are achieved, rigid distinctions between core and out-group members break down, and notions of the particular and the universal become much more thoroughly intertwined’ (Alexander 2006, 450–5). In its purest form, multiculturalism abolishes ethnic hierarchies and racial domination. All peo- ple, whites and non-whites, immigrants and native-born citizens, are not simply tolerated; they are valued and, as much as possible, are understood – their differences and similarities acknowledged, accepted, and welcomed. Let us take a moment to ponder multiculturalism, not only as a partly and selectively realized reality (which it is), but also as a real utopia. Much has been written about it, in a vast and exciting literature that spans philoso- phy, political theory, cultural studies, as well as sociology. Here we can only Race Ethnicity and Education 263 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 offer a few brief ideas. To begin with, in multicultural theory, the ideal America is not one in which all citizens dissolve into a single national iden- tity, an America that would only reproduce the worldviews and lifestyles of the dominant groups. On the contrary, it is a world of multicultural incorpo- ration that rests on two key principles: !rst, that, drawn shoulder to shoulder in common humanity with others, we have a civic responsibility to all peo- ple; and, second, that we must respect each others’ differences (Kymlicka 1995). Anthony Appiah (who prefers the term ‘cosmopolitanism’), puts it this way: There are two strands that intertwine in the notion of cosmopolitanism. One is the idea that we have obligations to others, obligations that stretch beyond those to whom we are related by ties of kith and kind, or even the more for- mal ties of shared citizenship. The other is that we take seriously the value not just of human life but of particular human lives, which means taking an interest in the practices and beliefs that lend them signi!cance. People are dif- ferent, the cosmopolitan knows, and there is much to learn from those differ- ences. Because there are so many human possibilities worth exploring, we neither expect nor desire that every person or every society should converge on a single mode of life. (2006, xv) Multiculturalism promotes the ‘norm of equal inclusion,’ which, in a racially just world, would become a core component of modern democracies (Barry 2001; see also Kymlicka 1995; Habermas 2003). In such a world, there are no ‘second-class citizens,’ and groups currently rendered invisible by political elites !nally receive their due recognition. To Canadian philoso- pher Charles Taylor (1994, 26), failing to recognize fully and to value non- whites and other dominated groups ‘shows not just a lack of due respect. It can in"ict a grievous wound, saddling its victims with a crippling self- hatred. Due recognition is not just a courtesy we owe people. It is a vital human need.’ If one of the primary techniques of those championing racial and colonial domination is to convince those they seek to dominate that whiteness and the ‘white way of life’ are superior to all other races and life- styles, then the aim of the multicultural project is to banish all such ideas of white supremacy and cultural superiority (Fanon 2004 [1963]). Despite our differences – and, indeed, those differences often are far outweighed by our similarities – we all are bound within a common humanity (Phillips 2007; Abu-Lughod 1991). Abraham Lincoln recognized this as far back as the nineteenth century, arguing that immigrants have a right to claim full American citizenship ‘as though they were blood of the blood and "esh of the "esh of the men who wrote the Declaration of Independence. So they are’ (quoted in Alexander 2006, 431). Recognizing this, the multiculturalist cannot deny his or her civic respon- sibility to dominated groups, and it is here that we witness the convergence of anti-racist movements and the multicultural ideal (Banting and Kymlicka 264 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 2006; Figueroa 1999). Multiculturalism demands that we stand with the suf- fering. It nourishes within us a spirit of solidarity, not only extended to our friends or countrymen, but to every person inhabiting the planet (Alexander 2006; Appiah 2006). The multiculturalist is less interested in protecting exclusively her own group’s agenda – constructing a political identity (based on race, gender, sexual orientation, religion, and so forth) and striving to promote only the aims of those with a similar identity – as much as in imagining and !ghting for a society in which all groups’ needs are realized to the fullest extent possible. In multiculturalism, one !nds a set of moral principles that can replace those of ‘identity politics,’ principles that counter the possibility of interracial and interethnic cooperation (see Brubaker and Cooper 2000; Gitlin 1996). Multiculturalism, after all, is not simply about recognizing other people’s identities and cultural scripts; it is also about rec- ognizing their problems – how they are unfairly treated in a democracy that promises them full and equal inclusion – and about responding with intelli- gent and just remedies (cf. Ford 2005; Phillips 2007). For the multicultural- ist, racial justice is the value; racial diversity and equality are the results. ‘But,’ the cynic interjects, ‘wouldn’t multiculturalism erode our national culture, undermining American unity and pulling us apart?’ Obsessing over our differences, it is true, weakens our democratic potential and breeds ani- mosity. But any multiculturalism worthy of its name does not encourage us to obsess over our differences but inspires us to acknowledge and respect those differences as potential sources of wisdom and good while working together to bring about a more just world. Multiculturalism seeks to draw us nearer, not to push us apart. It does not threaten civic community but nour- ishes its potential by dismantling racial domination (Banting and Kymlicka 2006, 11, 17). It does not weaken democracy but strengthens it. Most critics of multiculturalism believe its alternative to be a color-blind society, where we shed our differences and unite under the banner of ‘American.’ This train of thought is nothing more than the old idea of assimilation in new garb. It assumes that the stew simmering in the great American melting pot suits everybody’s tastes. It also assumes that assimilation melts everyone equally into a new something, even if, in reality, that ‘new something’ is the dominant group projecting itself as the universal American. Whites do not melt; non-whites do. This means that the alternative to multiculturalism is not national unity but disunity and racial strife. Multiculturalism seeks to nourish democracy, to strengthen American civil society, making it freer and fuller, wider and warmer, more inclusive and more just. Besides, to deny the goal of multiculturalism is to deny the very essence of America. America always has been multicultural, although it is only in recent years that it has pursued multiculturalism as an ideal. The United States, said Senator Carl Schurz in 1859, was ‘a great colony of free humanity which has not old England but the world for its mother coun- try’ (Fuchs 1992, 45). It took an enormous labor to convince us otherwise; Race Ethnicity and Education 265 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 it took a movement of great exertion and coercion, mysti!cation and trick- ery to present America as a white nation. In America, multiculturalism is the norm; it is racial domination that is its perverse, unnatural substitute – which is why Appiah makes perfect sense when he says, ‘Cosmopolitanism isn’t hard work; repudiating it is’ (Appiah 2006, xx). Justice The second end we propose is: a society that embraces racial justice. Because racial domination has been such a central feature of American soci- ety since its inception, it might be dif!cult to imagine an America where racial justice !nally has come to replace injustice. Some people have given up trying (Bell 1987). But there is no surer way to guarantee racial domina- tion’s continued reign than to conceive of it as intractable and eternal. Imag- ining alternatives to how we should live is itself a small act of resistance, one that refuses to settle for the world we have inherited and that !rmly rejects the defeatist claim, ‘This is how it is, and how it has always been, so get used to it.’ Since the collapse of the Civil Rights Movement, most activists in Amer- ica simply have not known where to march next (Winant 2001). During Jim Crow, racial domination was obvious and legal; there was a clear enemy (segregation) and a clear goal (desegregation). But today, racial domination can be more elusive and complicated; it can be ghostlike and dif!cult to confront. There is a good deal of truth to this, but numerous studies (Wes- tern 2006; Brown et al. 2003; Feagin, Vera, and Batur 2001; Bonilla-Silva 2003; Gotanda 2000) have shown that today racial domination in"uences all of society’s !elds of life; its consequences are devastating and, in many cases, its presence undeniable. There are tangible problems in need of tangi- ble solutions. A revitalized Civil Rights Movement – uncompromisingly egalitarian, intersectional, and multicultural – is needed. In the paragraphs below, we offer some direction to that movement, ends it can pursue and, in some cases, is pursing today. What might a racially just America look like? It would take several books, in reality, to answer this question thoroughly. But, in what follows, we imagine some real utopias for several major areas or !elds of social life (proceeding from the macro to the micro), in an exer- cise intended to pry open our imaginations and to stretch the limits of what we believe to be possible. In the political !eld, racial justice would come with the advent of a more powerful multicultural democracy, one that lives up to its name (literally, ‘the rule of the people’) (Hacker and Pierson 2005). Because there is no genuine democracy in societies that muzzle dissenting voices, the new American democracy would value and welcome criticism and would pro- mote (not erode) people’s political freedom. Patriotism would be measured by the extent to which we critically evaluate our society and strive to 266 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 change things for the better – not the extent to which we nod ‘yes’ to every- thing party of!cials say. Current systems of ‘taxation without representation’ would come to an end, as poor communities of color, as well as ex-felons, would enjoy political representation that matches that of wealthy white sub- urbanites. How, after all, can we accept a society in which ‘the fullness of freedom [is reserved] for those whose income, leisure, and security need no enhancing, and a mere pittance of liberty [is reserved] for the people, who may in vain attempt to make use of their democratic rights to gain shelter from the [powerful]’ (Polanyi 2001 [1944], 265)? In a racially just society, democracy would triumph over oligarchy, and substantive racial representa- tion to political posts would best super!cial representation. Appointed of!- cials would be intimately connected to the needs and problems of all citizens, including those living in disadvantaged non-white communities. This might require abandoning America’s two-party system – the only one of its kind in the democratic world – for a political system where one does not have to choose between Democrats and Republicans. It would most cer- tainly require the revitalization of a powerful and multicultural Civil Rights Movement (Smith 1999). Racial justice in the economic !eld would mean, !rst, the complete and total eradication of racialized poverty. ‘Impossible,’ whispers the cynic. But why? In a racially just society, the gap between the rich and the poor would narrow, as would income and wealth disparities across race. The simulta- neous extraction of immigrant labor and retraction of immigrant rights would cease. America would develop fair policies that treat its poor immi- grants as more than simply an expendable and cheap labor force. And America would help countries such as Mexico revitalize their economy and reduce their poverty, instead of treating those countries as staging grounds where companies can relocate their factories and pay workers a substandard wage. Finally, the skimpy American welfare state – in large part responsible for the millions of citizens living hand-to-mouth today (Wacquant 2007) – would expand by generous proportions, such that ‘the primary obligation of the state’ would be to ‘use its powers and allocate its resources to eradicate poverty and hunger and to assure security of livelihood, security against the major hazards and vicissitudes of life, and the security of decent homes’ (Harvey 2005, 183). The new American welfare state would guarantee peo- ple a livable wage, affordable housing, health care for all, and secure retire- ment plans. There is good reason to believe that racialized poverty could be considerably reduced if poor communities of color were offered a New Deal and Fair Deal comparable to the one offered whites before and after World War II (Katznelson 2005). A residential !eld guided by racial justice would not be scarred by dras- tic segregation but would promote racial integration and multicultural com- munity. More important, it would eliminate the problems associated with racial segregation, problems such as chronic poverty, educational inequality, Race Ethnicity and Education 267 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 and imbalanced political representation. The American state would initiate massive investment in the nation’s poorest communities and would nourish and promote self-development and sustainable economic growth on Ameri- can Indian reservations. Those living in more af"uent areas would use their af"uence to help others in need instead of building higher fences. Housing discrimination would be shut down. And we would develop cleaner and more energy-ef!cient ways to live, so as not to burden poor and non-white communities with our trash and pollution. One of the most racially unjust institutions today is the American crimi- nal justice system. While non-whites have made gains in the economic and educational !elds in the past 20 years, they have lost ground in the legal realm, as evidenced by the gross racial discrepancies in our prison popula- tion. In a racially just society, those discrepancies would disappear, as would all forms of racial pro!ling as well as the pervasive spirit of racialized fear that links blackness to criminality and Arabness to terrorism. If ‘tough on crime’ policies have not made us safer, as the evidence suggests, then we would abandon those policies in favor of more effective and cost-ef!cient ones. We must think beyond the prison walls, developing alternatives to incarceration that not only decrease racial inequality in punishment but also, unlike our current program of mass incarceration, actually work to decrease crime. A racially just society would mount a proactive assault on the root causes of criminal behavior, instead of relying singularly on reactive pro- grams of harsh punishment. The result would be a safer America – where cities no longer have ‘streets you shouldn’t drive down’ or ‘bad areas of town’ – as well as an expansion of freedom in poor non-white communities previously subjected to drastic policing measures. With respect to education, making higher education more affordable would open up opportunities for thousands of people, including many peo- ple of color, who currently are excluded from the privileges many others enjoy. What is more, a racially just society would invest in its poor schools; and a racially just society would critically reconstruct its curriculum, replac- ing Eurocentric accounts of history, art, politics, and philosophy with a more accurate, well-rounded, and multicultural program of studies (Apple 1999; Banks 2002). In the same vein, the racist aesthetic would be swept out of the aesthetic sphere by an artistic revolution led by non-white and white artists alike, who would renounce caricatured and stereotypical depictions of people of color, as well as distorted and uncomplicated renderings of racism. In their own work, artists would represent people of color in their full humanity, escaping the racist gaze and pushing forward our critiques of racial domina- tion much farther than they have been pushed before. Art of this nature, art upholding an anti-racist aesthetic, would be richly rewarded. In a racially just society, our associations would be guided, not by the principle of homophily, but by an ethic of multiculturalism. Through our 268 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 associations, we would breach racial and ethnic boundaries instead of reify- ing them. Hate groups would be a thing of the past; and the Internet would become a conduit through which radical multicultural democracy "ourishes and expands its reach. Religious associations would "ourish as institutions of justice and equality and would work to foster a spirit of civic responsibil- ity and mutual connectedness. More broadly, a racially just society would entail the galvanization of civil society, where citizens would be involved and deeply invested in community affairs, voting and participating more fully in the political process and working together to !ght racial injustice and strengthen non-white communities that, for decades, have been over- looked by political elites. Finally, in the intimate !eld, a racially just society would disallow stig- mas from being attached to interracial marriages. All consenting adults would be free to marry whomsoever they chose, unbound by family and community prejudices or by unjust laws. Aggressive programs would be developed to help single mothers and to abolish the feminization of poverty. The majority of citizens would enthusiastically embrace the concept of ‘doing the (racial) work,’ the cultural labor required to transverse ethnic and racial boundaries, the determined broadening of one’s cultural competence in an attempt to adopt, as sincerely as possible, another perspective on the world. Citizens would cultivate their intercultural competence and their desire to understand the world through multiple perspectives, admitting that, on some occasions, their vision of the world may be neither universal nor correct. As a result, everyday interactions between blacks and Jews, Jews and Muslims, Latinos and whites, whites and American Indians, American Indians and Asians, and so forth, would be de!ned, not by anxiety, anger, or fear, but by mutual respect and kindness. Whites would deny their white privilege and use the advantages granted them by racial domination to work on behalf of racial justice. Rejecting feelings of superiority as well as white guilt, both of which sti"e positive action, they would embrace a healthy white identity. Non-whites would abandon any form of ethnic chauvinism and would evict from their thinking all traces of internalized white suprem- acy. All these ends, these real utopian possibilities, are distant, to be sure, but they are not beyond our collective reach. Like the !rst "owers of spring after a long hard winter, changes promoting racial justice already are sprout- ing up all across the nation. The stigma around interracial marriage has been weakened; some American Indian Nations successfully have pulled them- selves out of destitution; the Alternatives to Incarceration Movement has developed many practical forms of punishment that take place beyond the prison cell; chronic poverty has declined by sizeable margins over the last century. We still have a long row to hoe, but the work has already begun – and, already, we have started to reap some fruits of the harvest. You might agree with some of our ideas and disagree with others. And, indeed, we Race Ethnicity and Education 269 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 have only scratched the surface of the matter. But one point is undeniable: We must never become numb to the now; we must never allow ourselves to be lulled into mistaking the present for the permanent; we cannot permit our minds to be closed to the real possibilities tomorrow offers. We can – and must – do better. Intelligence The third end we propose is: a society where racial domination is addressed intelligently. We use the term ‘intelligence’ deliberately, for what is called for is precisely an application of intelligence in the philosophic sense of that term. To philosophers, intelligence has to do with one’s ability to exercise good judgment in a world full of uncertainty. As John Dewey wrote in The Quest for Certainty, a person ‘is intelligent. . . in virtue of his capacity to estimate the possibilities of a situation and to act in accordance with his esti- mate’ (Dewey 1988 [1929], 170). For Dewey, our ability to solve the prob- lems we confront was directly connected to our ability accurately to assess those problems and to develop different courses of action. American sociol- ogist Charles Horton Cooley, a contemporary of Dewey, concurred that ‘the test of intelligence is the power to act successfully in new situations. We judge a man to be intelligent when we see that in going through the world he is not guided merely by routine or second-hand ideas, but that when he meets a fresh dif!culty he thinks out a fresh line of action appropriate to it, which is justi!ed by its success. . . . It is, then, essentially a kind of fore- sight, a mental reaction that anticipates the operation of the forces at work and is prepared in advance to adjust itself to them’ (Cooley 1966 [1918], 351). Racial domination, like all forms of domination, relies on a tangled col- lection of distortions, illogic, and lies sometimes misrecognized as truth. Logic, rational decision-making, and good sense – the execution of a racial intelligence – can shine a revealing light on the obfuscation linked to racial domination; it can lay bare the true nature of the beast. Racial intelligence can promote a political climate where people desire – need – to know the best and latest information on the pressing problems of the day; and it can lead to successful resolution of those problems. We imagine an opening of the American mind, where ideas and science are treated seriously and with respect and where people realize the power of clear thinking. As Kurt Lewin remarked over 50 years ago, ‘Nothing is more practical than a good theory’ (Lewin 1951, 169). Freedom and knowledge, that is, liberation and rational awareness, are welded together. One cannot exist without the other. C. Wright Mills wrote: Freedom is not merely the chance to do as one pleases; neither is it merely the opportunity to choose between set alternatives. Freedom is, !rst of all, the 270 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 chance to formulate the available choices, to argue over them – and then, the opportunity to choose. That is why freedom cannot exist without an enlarged role of human reason in human affairs. . . The social task of reason [therefore] is to formulate choices, to enlarge the scope of human decisions in the making of history. (1959, 174) Freedom, in a word, goes hand in hand with intelligence, the ability to spread wide your horizon of possibilities and to make sound judgments in respect of them. In a society such as ours, so !lled with misleading language and technol- ogies of mysti!cation, acting intelligently – that is, actively seeking truth rather than passively accepting this or that party line – is itself a powerful political act. Mills knew this well. Not only did he seek, as a public sociolo- gist, to foster critical thinking in the American citizenry as a whole, but he also noted, with respect to more specialized research, that the very enterprise of social science, as it determines fact, takes on political meaning. In a world of widely communicated nonsense, any statement of fact is of political and moral signi!cance. All social scientists, by the fact of their existence, are involved in the struggle between enlightenment and obscuran- tism. In such a world as ours, to practice social science is, !rst of all, to prac- tice the politics of truth. (Mills 1959, 178) ‘The politics of truth?’ mocks the cynic. ‘What is truth?’ Too often, wherever the question, ‘What is truth?,’ or, more brashly, the declaration, ‘There is no truth!,’ is uttered, indifference, the washing of one’s hands of the problem, is nearby. If there is no right or wrong answer, so the logic goes, then there is no right or wrong action. Is there no better recipe for indifference? The notion that all truth is relative and forever beyond our reach is thoroughly misguided and ought to be discarded. Besides, those who apply such reasoning to the social world would not dare do so to the natural one. The world remains round whether or not you think it so. Reducing hard-earned facts to ‘mere words’ or ‘relative truths’ is a trav- esty and an affront to struggles on behalf of racial justice. There is a differ- ence between opinion and truth. The latter is those opinions that have been subjected to what Dewey called ‘the test of consequences,’ assertions that have been examined and tested and determined collectively and systemati- cally to have warrant (Dewey 1988 [1920], 171, 169). Not all opinions are equal; some are quite wrong and ought to be labeled as such. A black working-class man might perceive that Mexican immigrants are ‘stealing his job,’ but that, according to the best available evidence, would be wrong (Borjas and Tienda 1987; Borjas 1990). The evidence also leads us to con- clude, contrary to popular belief, that white men have not been harmed by af!rmative action (Norton 1996; Jackson 1996; Morin 1997; Reskin 1998) and that the prison boom has not led to a decrease in violent crime (Western Race Ethnicity and Education 271 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 2006, 185). If we believe otherwise, we ought to be corrected. Opinions should be submitted to the best available evidence. A society of racial intelligence would look quite different from the one we have today, in the domains both of everyday life and of high-level poli- cymaking. In everyday life, citizens would, as a matter of disposition, approach problems and con"icts not in terms of their received prejudices and opinions but in a more open-ended, experimentalist spirit, setting alter- native proposed solutions to the pragmatic test and seeing what works and what doesn’t in furthering a more just and harmonious experience. In high- level policymaking, our politicians would have the best data at their disposal and, crucially, would want to be better informed. Political rhetoric would not be chock full of coded language, buzzwords, and manipulations; the days of the political spokesperson adept at dodging questions and masking truth would come to an end. What is more, instead of making it dif!cult for Americans to know what they are up to, politicians would encourage transparency and openness. We are envisioning a society in which all citizens – from teachers and engineers to domestic workers and truck drivers – would be informed and educated. They would participate in a politics of reason, where their opinions would be tempered by intelligence and the cool-headed evaluation of the best avail- able information. And they would possess a ‘radical doubt,’ a skepticism, sharpened by the scienti!c enterprise, which would help them better to dis- tinguish truth from falsehood (Mullings 2005; Feagin and Vera 2001; Willett 2001). The means Like a great locomotive, the movement toward racial equality and justice began slowly and with considerable effort. But it gained speed with every turn of the wheel and every grate on the track and, soon, it shook the rust off its gears and !red up the engine, and got to rolling. It lumbered forward with great momentum and power and quite literally changed the world. But, since the late 1960s, the movement seems to have lost steam, even in a time when the tenets of anti-racism have grown more widely accepted. Today we !nd ourselves in a unique historical moment. On the one hand, there has never been a time in American history when so many people reject racism. A mere generation ago, racial segregation was the law of the land and was embraced by millions; today, nothing could seem more anti- American. On the other hand, while racial domination continues to cause a great deal of suffering and makes a mockery of our democracy, many move- ments for racial justice have faded away. Never has the value of racial equality been so strong while the movement for racial justice is so weak (Winant 2001). 272 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 Right now, there are thousands of people working in the name of multi- culturalism and racial liberation. They are running for local of!ce, teaching on reservation schools, giving water to dehydrated border crossers, arguing civil rights lawsuits, and organizing on college campuses and in inner-city neighborhoods and small towns. Of course, on the opposite side of the con- tinuum, there are also thousands of people working on behalf of racial dom- ination. Not just members of hate groups, but business owners who discriminate against black applicants, real estate agents who only show Puerto Rican families homes in poor areas of town, movie producers who encourage distorted depictions of Native Americans, and politicians who turn a blind eye to the pressing problems of racial domination. And in the middle are the hordes of the indifferent. Where do you stand? ‘I cannot change things,’ you say. In fact, it is the other way around: You cannot but help change things. By virtue of existing, we change things. We affect people in our classes, dormitories, jobs, fami- lies, and social clubs, even if we cannot fully realize exactly how. It is not a question of if we will change things but how we will – for the better or for the worse. What is needed is not just an impassioned response to racial injustice but an intelligent response as well. ‘We are not in danger of being excessively generous; indeed, most of us are in no danger of meeting. . . our basic obli- gation. But what’s wanted. . . is the exercise of reason, not just explosions of feelings’ (Appiah 2006, 170). Where, then, do we start? In what follows we explore four levels or sites of change having to do with our (1) selves; (2) inner circle; (3) institutions; and (4) nation. These are not stages one proceeds through so much as overlapping areas of struggle. All are impor- tant; all are integral elements in the search for positive change in racial life. One cannot simply choose among them. The intelligent reconstruction of our racial order requires them all, in combination and in creative synthesis. Self Leo Tolstoy, perhaps Russia’s greatest novelist, once wrote, ‘Everyone thinks of changing the world, but no one thinks of changing himself.’ But this is precisely where we must begin. How, after all, could someone claim to be an environmentalist while refusing to conserve water or to recycle? How could someone claim to be a feminist while mistreating the women in his own life? How could any of us claim to be !ghting for racial justice without yet critically examining our own prejudices? If we want to help dismantle racial domination, we must !rst address it within ourselves. The goal here is not to purify ourselves of all traces of interpersonal racism before getting involved with anti-racist movements. If it were, nothing would ever get done, for, if we are honest with ourselves, most of us have prejudices that cling, barnacle-like, to our thoughts and feelings. The goal is Race Ethnicity and Education 273 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 not perfection but critical self-engagement, not complete puri!cation (an impossibility) but rigorous re"exivity. Interracial and intercultural competence, moreover, is not a state at which we arrive or something we achieve. It is not a destination but a process, a way of living. There is no conversion moment, no glorious awakening, where once and for all we come out of the darkness and into the light. There is only a life lived, striving and working, succeeding and failing, moving from light to dark and back again. The apt metaphor here is one of training, where day after day we discipline our thoughts and actions so they are not dictated without our consent by forces of domination. This self-training requires, foremost, identifying our prejudices and attempting to scrutinize and, as much as possible, evict them. We must pay serious attention to our thoughts and actions, evaluating how we treat people differently because of their racial identity or how we feel about this or that ‘kind’ of person. Knowing ourselves means taking a good hard look in the mirror and being as honest as a re"ection about what we see. Many of us are truthful with ourselves far too rarely, and, oftentimes, we can practice a kind of disingenuous re!exivity that errs in two opposite directions. On the one hand, we can search within ourselves and happily report that we are free of all prejudices. ‘I treat everyone the same,’ we might declare. ‘I do not have a racist bone in my body.’ On the other hand, we can claim, after a thorough inward-looking meditation, that we are wretches, full of only pre- judice: ‘I am so completely racist; I am helpless.’ One kind of dishonest exaggeration looks inside and !nds an angel, seemingly immune to racial domination; the other !nds a demon that welcomes racial domination with- out resistance. But the truth is that we are all made up of a complicated blend of good and evil, courage and cowardice, ignorance and intelligence. Honest re"exivity confronts the self in its full complexity, and it does not shy away from the nasty bits but seeks them out in order to set them straight. ‘We only become what we are by radically negating deep down what others have done to us’ (Sartre 2004 [1963], li). Our thoughts are ours; we must take responsibility for them. But having a racist thought does not make you a bad person or a ‘racist.’ It makes you a person who has been in"uenced by a society up to its neck in racial domi- nation. You might feel ashamed when a racist thought trespasses your mind, but if shame is your only reaction, you have little chance of controlling your prejudices. ‘Rolling in the muck is not the best way of getting clean’ (Huxley 1998 [1932], vii). To restrain our unconscious racism, we must objectify it and subject it to a historically informed analysis and critique. This endeavor, a sort of socio-analysis that complements and perhaps even goes further than psychoanalysis, is a re"exive enterprise, in which we objectify all those forces that control our imaginations and actions in order rationally to assess and control how they affect our thinking and behavior. We must never stop asking ourselves: Is my idea correct? From where does 274 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 my information come? How do I know that this is the truth? How is it that I know the world works in this way? How might my upbringing and racial identity in"uence my thinking on this matter? Racial intelligence also requires that we become good listeners, that we ‘pay attention – to others and to the world around [us]’; that we take note of human achievements in art, music, craftsmanship, poetry, politics, sports, literature, and journalism. It requires that we read and that we learn how to communicate our ideas more clearly to others. If we hope to become people of intelligence, driven by a love of learning and a deep commitment to the truth, we must discipline our minds and reject half-baked, sloppy thinking. We must also invest in others’ passions and ideas and ‘understand the power of other people’s dreams and nightmares as well as [our] own.’ We must acknowledge that ‘freedom of the individual is possible only in a free com- munity, and vice versa,’ and therefore understand that our livelihood is inex- orably connected to livelihoods of others (Cronon 1998, 76–8). And we must surround ourselves with people who are different than ourselves, who disagree with us, and who can push and challenge our thinking. In a multi- cultural vein, we should never fear differences or ‘strangeness.’ Rather, we should seek them out, knowing full well that our ‘little shard of mirror can- not re"ect the whole’ (Appiah 2006, 8). Perhaps above all, we must develop empathy. You might be the smartest mind of your generation, able to analyze racial domination with precision and brilliance, but if your stomach does not turn when you hear about a hate crime that happened on your campus or when a friend cracks a racist joke or when you pick up the newspaper and read about America’s growing anti- immigrant sentiment, then your intelligence is in vain (Feagin et al. 2001). The philosopher Hannah Arendt (1978, 104) put it this way: We ‘do not become just by knowing what is just but by loving justice.’ Changing our- selves into agents of change, therefore, means changing our minds by culti- vating knowledge and changing our hearts by cultivating empathy. One kind of change drives the other. The more you learn about racial injustice, the more your heart will break for its victims; likewise, the stronger your pas- sion for justice grows, the more you will want to learn about racial domina- tion and the more you will seek out the best prescriptions for change (Pedersen, Walker, and Wise 2005; Stephen and Finlay 1999). A good deal of this work, this self-work, is carried out in solitude. By ourselves, we read and think in the library; we ponder our own thoughts while walking down the street; we imagine a better world while riding the bus. But this can only take us so far, for re"exivity is a fundamentally collec- tive enterprise. We cannot fully change ourselves by ourselves. For our short- comings to be brought most fully to light, we need to participate in collective dialogues that cut across racial boundaries. The importance of honest discus- sions that grapple with the complexities of racial domination – and especially of conversations that take place between women and men of different racial Race Ethnicity and Education 275 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 identities – cannot be overstated. As you might already have discovered, talk- ing about race can be painful. Fear and anger, stubbornness and sel!shness can choke rational dialogue and get in the way of progress. What is needed is cool-headedness, humility, and respect; in certain instances, what is needed most might be honest contrition; in others, forgiveness (Patterson 1998; Tatum 1997). Weariness and apathy, too, are signi!cant barriers to engaging in these – often exhausting, often maddening – conversations. ‘I am tired of talking about race,’ you might say. ‘Let’s just put it all behind us.’ Most of the time, white students are the ones who voice this complaint, a complaint that itself is a product of white privilege (Rich and Cargile 2004). Non-whites, whose livelihood, and whose children’s livelihood, depends on overcoming racial domination, do not have much choice in the matter; their weariness comes, not from conversations about racial domination, but from the thing itself. It goes without saying that all of us, whites and non-whites alike, need to carry out this self-work, confronting the many ways in which racial domi- nation is alive in our innermost beings, our unconscious habits, dispositions, and postures. Whites need to come face to face with their racial privilege. They need to interrogate how their thinking is informed by racial domina- tion; they need to reject notions of rugged individuality, which encourages them to ignore the power of history and society (Katz 1978). Non-whites, too, need to confront their own prejudices as well as to turn away from all whispers of self-hate and embrace a positive image of their self in a society that day after day projects negative ones. They need to come to the full real- ization that racial inequalities are the product of racial domination, not of the de!ciencies of non-whites, and must struggle against reproducing the terms of their own domination (Bell 1987, 228–9). And all of us must strive to understand the world through multiple perspectives. Inner circle Racial domination has to be eradicated, not only from our ideas and prac- tices, but also from the ideas and practices of those nearest us – the persons in our intimate circle. You can have great in"uence over how your family members and friends think about the world. How can you address their rac- ism? Every situation is different and requires a good deal of thought, strat- egy, and patience on your part. But if there is a single guiding principle for addressing racism in the lives of people closest to you, it is this: Hold them accountable for their words and deeds – and ask them to do the same to you. A father sees a group of Mexican-American men and observes, ‘All these Mexicans. They are taking our jobs away!’ Knowing he is misinformed, his son responds, with genuine interest, ‘Why do you think that?’ The father 276 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 replies, ‘It’s just obvious, isn’t it? I mean, you know Bob Kapatrick down the street, he lost his job last year.’ The son answers, ‘That really is sad about Mr Kapatrick, but are you sure he lost his job because of Mexicans? I mean, couldn’t there be other factors involved? I read in the paper that a lot of workers from that factory were laid off, including Mexican workers. You know, I used to think that Mexican immigrants took jobs away from Ameri- cans, but I’ve been convinced otherwise. I started reading up on it, and the best evidence out there shows that Mexican immigrants don’t take jobs away from native-born citizens. They mainly compete for jobs with other immigrants. What do you think?’ When people with racist beliefs are faced with an alternative interpreta- tion about how the world works, a more intelligent interpretation informed by social science, they have a dif!cult time justifying their beliefs. In time, they may come to change their minds and embrace a more informed (and anti-racist) understanding of society. But people often grow defensive and uncomfortable when asked to justify their ideas. Accordingly, there are at least four useful techniques for holding people accountable for their preju- dices. First, take their prejudices seriously. Do not yell at them; do not call them ‘stupid’ or ‘ignorant’; try not to get too angry. If you blow up on peo- ple every time they say something racist, you will not teach them to think differently; you will only teach them not to say such things around you. When confronted with a racist statement – or, more softly, a benign yet mis- informed statement about racial domination – realize that the person who uttered the statement matters very much, that their ideas matter very much, and that their beliefs most likely are tied to their personal experience. If you want them to listen to you, then you must listen – sincerely – to them. Second, ask people questions. In the above conversation, the son responded to his father’s remark with a question and inserted questions throughout the conversation. If he had responded with a statement such as ‘You’re wrong!’ or ‘How can you believe such garbage!’ or ‘You’re so rac- ist!’ he might have blown the teaching opportunity. Questions – posed authentically, not sarcastically or presumptuously – are disarming and invit- ing. They’re also quite natural. If someone says, ‘I think the Los Angeles Lakers are the best basketball team in the country,’ the natural response is to ask, ‘Why?’ Similarly, if someone says, ‘I don’t think American Indians want to climb out of poverty,’ it is equally natural to ask, ‘Why?’ Questions, at bottom, are pursuers of the truth. As such, they are powerful weapons against racist beliefs (Kivel 2002 [1997], 113–14). Third, do your homework. How can you hope to change someone’s mind if you can’t offer them a better interpretation than the one they currently hold? The son was able to offer his father a different way of understanding how Mexican immigrants affect the labor pool because he had read up on the issue. Racial domination’s arch-nemesis is a critically informed citizen. This does not mean you have to memorize statistics (although it’s good to Race Ethnicity and Education 277 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 store a few in your arsenal) or be able to recite the precise date that marked the beginning of the prison boom. But it does require you to have a grasp of the relevant research !rm enough to allow you to articulate educated positions on certain matters. If your knowledge is a bit shaky, don’t be afraid to tell your family members or friends that you’ll hit the books and get back to them – and be sure you do. Finally, the worst thing you can do upon being confronted with a racist belief – other than remaining silent – is to turn the conversation into a debate you intend to ‘win.’ It is extremely dif!cult to learn when you are competing. After all, in a debate you are not trying to understand; you are trying to beat your opponent. And it is an extremely rare thing for someone to walk away from a debate having learned anything. In most cases, both winners and losers leave the debate thinking one thing: that the other person is an idiot. You should be !rm in your convictions, determined with your questions, and con!dent in your knowledge, but the goal should be a rational discussion, not a debate in the sense of a verbal sparring match. If you set out to intimidate someone or make them feel stupid, you usually will produce in them the desired effect, losing credibility and perhaps even calcifying their racist or wrongheaded beliefs. If you truly want to change someone’s mind, then you have to be willing to be vulnerable and (if appro- priate) honest about your own prejudices. One last thing: think about the timing of your conversation. Sometimes a racist utterance is best addressed on the spot; other times, it is better to confront the person at a later time. Be prepared for resistance, and gird yourself for the long haul. It will take much more than a single conversation adequately to address your friends’ and family members’ interpersonal racism. This – it bears repeating – is a process, not a conversion. Understand, too, that, despite your best efforts, you will not always be successful. Some people will go to their graves with their racism. After trying and trying, sometimes the only thing left to do is to move on, expending your energies elsewhere, like !ghting for racial justice at the institutional level. Institutions Racial domination must be confronted at the interpersonal and institutional levels. There are two kinds of change-oriented institutional action: individual and collective. Individual action involves conducting ourselves in a certain manner within the institutions to which we belong so as to promote racial justice. For example, all of us, no matter what our chosen profession, can promote racial justice within our workplaces. Are you a police of!cer? You can decry the pervasive practice of racial pro!ling, never employing this unfair technique and criticizing other police of!cers who do. A journalist? You can promote an anti-racist form of reporting, cutting through the mysti- !cations of racial domination to clutch hold of the truth. A nurse? You can 278 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 strive to provide the same level of care to all patients, regardless of their racial identity or socioeconomic status – and you can pull strings for those who need help but lack health insurance, encouraging other nurses to do the same. A teacher? You can petition the school board to promote a multicul- tural curriculum; speak out against the racist practice of tracking; and teach your students about white privilege. A nutritionist? You can organize free classes in impoverished neighborhoods, giving lessons on how to live well and eat right. An artist? You can work with an anti-racist aesthetic and encourage fellow artists not to depict people of color in overly simplistic modes. A lawyer? You can !ght for civil rights and speak out against injus- tices within the criminal justice system. A business owner? You can make sure your !rm hires and promotes well-quali!ed people of color and that it is de!ned by a healthy and warm racial climate. We easily could go on, but the point is clear: We can be advocates for racial justice in any and all lines of work. If you work for change within your institutions, you will face obstacles and hardships. There might come a time when racial justice requires you to sacri!ce something important to you. It is one thing to write your boss an email, asking him why a white employee was promoted over a more quali- !ed non-white one. But what if you were the one promoted? Or perhaps you are a person of color who has climbed the ladder to a position of power within a company but whose very presence in that position allows the com- pany to get away with all kinds of discriminatory practices. Will you let your voice be heard, even if it threatens the position you worked so hard to attain? When you are looking for a home, will you move into a segregated gated community or invest in a multiracial neighborhood, perhaps in a less af"uent part of town with less attractive property values? Today and in the future, if you !ght for racial justice, you might be faced with some tough decisions. They are tough precisely because they require you to endure discomfort or hardship at the expense of doing the right thing. But, as Socrates said long ago, ‘it is better to suffer wrong than to do wrong’ (Arendt 2003, 151). What is needed is courage and integrity. Change never comes without sacri!ce. Those who fought in the Civil Rights Move- ment endured prison and beatings. They were humiliated and spat upon. They were !red from their jobs. Their children were threatened and shoved and punched and bullied to tears. They endured depression and weariness; insomnia and terror. Some endured their homes being !rebombed; some gave their lives to the movement. What will we endure? Can we expect whites to endure much, to set aside all claims to white privilege and actively to work against a system of racial domination from which they bene!t? Since the earliest days of the anti-racist movement in America, whites have spoken out against racial injustice and have been per- secuted, even killed, as a result (Thompson, Schaefer, and Bond 2003; Thompson 2001; Aptheker 1974 [1943]). In 1899, after emphasizing the Race Ethnicity and Education 279 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 responsibility of non-whites in the liberation struggle, Du Bois wrote these words: ‘Discrimination is morally wrong, politically dangerous, industrially wasteful, and socially silly. It is the duty of whites to stop it, and to do so primarily for their own sakes’ (Du Bois 1996 [1899], 394). Why would Du Bois argue that whites should help put an end to racial domination, not sim- ply because it is the moral thing to do, but ‘for their own sakes’? The answer, of course, is that, despite the advantages whites enjoy on account of their skin privilege, whites, too, are af"icted by racial domina- tion. For one, by creating racial antagonisms within the working class, racial domination has reinforced non-white and white poverty. Moreover, racial domination is costly, and white taxpayers shoulder the bill when they pay for prisons, police of!cers, and super!cial !xes for old and entrenched social problems (Brown et al. 2003; Feagin et al. 2001). Racial domination, studies have shown, takes a psychological toll on whites, who live in fear of the racialized Other and with a good deal of guilt, depression, and shame (Spanierman et al. 2006). White people also suffer a kind of spiritual cost under the forces of racial domination. For their skin privileges, whites pay with a piece of their humanity. ‘The price of the liberation of the white peo- ple,’ Baldwin (1993 [1962], 97) would write, ‘is the liberation of the blacks [and, we add, all people of color] – the total liberation, in the cities, in the towns, before the law, and in the mind’. Collective action pitched at changing institutions complements individual- level action. Both approaches are important, but collective action is far more effective. If you want to effect real and lasting change within your institu- tions, then organize others to join you in pushing change forward. Start where you are, changing the institutions to which you currently belong: your social associations, religious organizations, political parties, and workplaces. How would we do this? We tender two simple guidelines: join and reach. As for joining, in most cases you do not have to start from scratch. You can seek out organizations already at work and lend a hand. Join a union or an anti- racist organization on campus or an interfaith alliance. And once you have joined, reach. Coalition-building means bringing others along with you in your pursuit of racial justice. Look for unlikely alliances; think of unusual connections. Seek out people in all areas of the institution to join your cause, from the mailroom to the corner of!ce. Above all, reach across racial divides. Turn your back on false divisions separating ‘Latino issues’ from ‘African American issues’ or ‘class issues’ from ‘race issues’ and instead pursue an agenda that unites these causes. Multiracial coalition building is bound to fail unless organizations widen their vision and critically assess how their pro- posed solutions to institutional problems produce differential effects across race (Fortier 2005). Consider an issue at the top of today’s feminist agenda: violence against women. If an organization working to protect women from abuse persuades the state to increase the severity of domestic violence laws, it may uninten- 280 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 tionally make things worse for victimized black women. The reason is that, because they are fully aware of the rampant inequalities faced by young black men within the criminal justice system, black women increasingly are reluctant to turn their abusers over to the police. In fact, studies have shown that, in black communities, the frequency of domestic violence calls decreases as the severity of domestic violence laws increases. The important point, one stressed over and over again by women of color, is that today’s feminist movement must be utterly multiracial if it hopes to address the problems of all women. Tokenism simply will not do. The voices of women of color must be heard throughout feminist organizations, and the feminist movement must address their problems with the same commitment and intelligence as it does those of white women (Roberts 1997; Collins 2000; Crenshaw 1991). Workers’ rights won by union mobilization demonstrate the importance of interracial alliances. Asian-American and Mexican-American farm work- ers, along with documented and undocumented immigrants, joined together to !ght for more rights and helped energize a movement that would eventu- ally result in the thoroughly multiracial United Farm Workers of America. Chicago’s white and black packinghouse workers, whom the business elite long had pitted against one another to drive down the price of labor, over- came ethnic and racial antagonisms to form the powerful United Packing- house Workers of America. In 1946, the interracial union went on strike to increase workers’ wages – and won. And Hawaii’s racially diverse working- class movement united native Hawaiian, Portuguese, Chinese, Japanese, and Filipino workers to win better pay and the institutionalization of antidiscrim- ination guidelines (Brueggemann and Boswell 1998; Halpern and Horowitz 1996; Barrett 1987; Jung 2003). In the tradition of the interracial labor movement, we can band together to bring about signi!cant change in our society. ‘Working in multiracial coalitions of equal members,’ writes Frank Wu, ‘united by shared principles, we can create communities that are diverse and just. Together, we can reinvent the civil rights movement’ (Wu 2002, 325). Nation Racial inequalities have persisted to this day in large part because, for far too long, the American state has refused to develop effective policies aimed at abolishing these disparities. The state has invested, and invested hand- somely, in mass incarceration, but it has invested meagerly in drug treatment or job creation programs. It has invested mightily in warfare and weapons technology but has invested meagerly in public education, head start pro- grams, or teachers’ salaries (Brown et al. 2003, 230). A national anti-racist movement would work to reverse these trends and to push for intelligent Race Ethnicity and Education 281 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 ‘reforms that would ease the circumstances of people at the bottom of American society’ (Piven 2008, 1). How would we reform policy and social structure? How would we change our nation? Through ongoing, energetic, and collective political action. We can start by lobbying our elected of!cials, asking them to embrace anti-racist reforms. Write them letters; circulate and sign petitions; participate in Internet-based political movements; put our energies behind a candidate willing to !ght racism and volunteer for her or his campaign. And never fail to vote (Piven and Cloward 2000). These political activities are the bread-and-butter of democratic participation and the least we should do as politically engaged citizens. As history attests, however, bold reform and transformative social change are brought about, not only through such measures, but also – and primarily – through methods of public protest, including strikes, sustained boycotts, public demonstrations, civil disobedience, racial uprisings, and full-scale revolutions. Democracy entered the world through a revolution, and it is a revolution that we celebrate on the Fourth of July. Slavery was abolished because abolitionists employed revolutionary methods while agitating for slaves’ freedom – and because, as Du Bois pointed out, black slaves them- selves rose up in rebellion; women gained the right to vote because mem- bers of the suffrage movement took to the streets; union strikes during the beginning of the twentieth century helped boost thousands of workers from poverty into the middle class; the Vietnam War drew to a close because the powerful anti-war movement of the 1960s demanded it happen; and segrega- tion folded because anti-racist social movements forced its hand (Metzgar 2000; Piven 2008). In 1984, Cesar Chavez re"ected on a lifetime spent organizing farm workers with the words, ‘The UFW [United Farm Workers of America] was the beginning! We attacked that historical source of shame and infamy that our people in this country lived with. We attacked that injustice, not by complaining; not by seeking hand-outs; not by becoming soldiers in the War on Poverty. We organized! . . . [And in so doing,] we created con!dence and pride and hope in an entire people’s ability to create the future’ (Chavez 2008 [1979], 426). To participate in collective political action – to employ the time-honored methods of public protest – is to engage as fully and completely as possible in civil society and to refuse to ‘become victims in a democratic society.’ Of course, some social movements are more effective than others. Why do some movements succeed while others fail? Sociologists have devoted con- siderable effort to answering this question. In what follows, we organize their !ndings around seven components of successful political protest, stated here as injunctions. First, realize you have power. Society is fundamentally a collection of relations of mutual dependence. Workers rely on capitalists for a paycheck, but capitalists rely on workers’ labor; consumers rely on corporations for 282 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 their goods, but corporations depend on consumers’ buying their products; citizens are subject to politicians’ decisions, but they also hold great sway over politicians with the power of the vote; and we all depend on one another to uphold the laws and customs of civil society. When we acknowl- edge these relations of power – and determine how to exploit these relations – we have discovered the foundation of political protest. Second, build coalitions. The practice of coalition-building discussed under the rubric of institutional change applies as well to social movements !ghting for political or structural change. Successful movements accurately identify their targets, their adversaries, as well as their allies: many times, neither group is what one !rst expects. They also !nd ways of incorporating multiple institutions – religious organizations, social associations, student groups, unions – into their organizing efforts so that different institutions can work in concert with one another. To do so, they identify points of con- gruence with other social movements so as to widen their base and appeal (Meyer and Whittier 1994). Third, remember that the insurgency matters more than the insurgent organization. Protest organizations are extremely important and can get quite a lot accomplished, but formal organizations can sometimes end up discour- aging instead of promoting social unrest. As Frances Fox Piven and Richard Cloward point out in their important book, Poor People’s Movements, elites often are happy to comply, as they know it is insurgency, not insurgent organizations, they have to fear (Piven and Cloward 1977, xi–xii). The suc- cessful social movement, then, has its priorities in line. It realizes that the power is in the mob not the meeting – that what is powerful is organizing not the organization – and it does not squander rare opportunities to breathe fresh life into the discontented masses. Fourth, exploit weaknesses in the dominant system. Racial domination is old and powerful, it is true; but it is not a total system, immune to chal- lenges. The smartest social movements !nger its structures, !nd the weak spots, and tear them open. They identify simple strategies that can have large and far-reaching effects. Even individual acts of agitation can throw off the system of racial domination. Each of us, in our own fashion, can ‘throw [our] grain of sand into the well-oiled machinery of resigned com- plicities’ (Bourdieu 2003, 65). Fifth, do not be afraid to break some rules. Some laws are just; others are not. Successful social movements do not allow unjust laws to stand in their way. This is the central idea undergirding civil disobedience, that tactic of protest upon which the Civil Rights Movement relied so heavily – and with great success. Throughout the history of America, people have found it impossible to act justly while obeying an unjust law. For a new society to burst forth, the unjust rules holding it back had to be snapped. In his essay, Resistance to Civil Government, Henry David Thoreau put it this way: ‘If it is of such a nature that it requires you to be the agent of injustice to another, Race Ethnicity and Education 283 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 then I say, break the law. Let your life be a counter-friction to stop the machine.’ Sixth, plan for the long haul. The successful social movement develops strategies to support its members throughout the organizing campaign, espe- cially if those people are participating in political action that causes them some hardship. In many cases, activists need to !gure out, not only how to mobilize together, but also how to live together, how to survive the insur- gency without acquiescing to systems of domination. This is especially important in this day and age, when one !nds many avowed anti-racist peo- ple but very few organized anti-racist activists – and where resistance to fundamental racial change remains strong (Hero and Preuhs 2006; Winant 2004, 57–62). Finally, have fun. A peculiar injunction? Perhaps, but organizing against racial domination is dif!cult work. People often disagree about the funda- mental nature of the problem and how, precisely, to confront it. One person might suggest that her organization focus on children’s education; another might point to the family unit; and still another might suggest concentrating efforts on housing, prison, job-creation, community revitalization, or any number of things. The scarcity of any organization’s time and resources requires the narrowing of objectives; and choosing to confront one problem over another often leads to serious inter-organizational con"ict. Agendas clash, especially within coalitions comprising a diverse array of activists. Matters pertaining to the gay community or women of color might be raised; some members of the coalition might charge the organization with paying too much attention to ‘Mexican issues’ (like immigration) or ‘black issues’ (like inner-city poverty) and not enough attention to ‘American Indian issues’ (like environmental racism) or problems confronting poor whites (like rural poverty). The magnitude and depth of the problem as well as inter-organizational con"ict might lead those who hope to struggle against racial domination to grow weary and burn out. Or they might fall in love with their outrage, overlooking the perhaps small but nonetheless signi!cant victories (Gitlin 2003, 143). Activists might grow bitter and pessimistic and perhaps not recognize the triumph of justice even if it comes. This is why it becomes so important to laugh together. Those in a healthy social movement share stories and jokes; they horse around and pull pranks; they respect one another and look forward to working together. They are forward-thinking and optimistic, holding fast to the truism that we have come a long way and can go much farther. They believe in the promise of democracy. In such a social movement, power is evenly distributed throughout the organization, and control is not monopolized by a cadre of ‘elite activists’ (and neither is the brunt of the labor). Working toward racial justice may require sacri!ce; it undoubtedly will result in frustration, anger, and feelings of defeat. But, ask any activist, it will also give you a deep sense of purpose and joy. When you work for something bigger than yourself, something more important 284 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 than your checking account or your personal ambitions, life grows "ush with meaning and importance. The next word ‘It does not require a majority to prevail but rather an irate, tireless minority keen to set brush!res in people’s minds.’ Samuel Adams, one of America’s founding fathers, offered these famous lines, words that ring true up to this very hour. It is necessary to remind ourselves time and again that during the Civil Rights Movement, the majority of white and non-white Americans stood on the sidelines while a core cadre of committed activists pushed the country forward. The same is true of most major historical events. Analysts have referred to it as the 80/20 phenomenon: the common observation that roughly 80% of social change is brought about by 20% of the population. Sociologist Mario Small (2004, 177) has gone even further, suggesting that a community association that involves less than 1% of the total neighbor- hood population can bring about signi!cant social change in that neighbor- hood. When a few impassioned citizens gather together around a single cause, the potential to move the world is in their hands. ‘Idealist and naïve,’ dis- misses the cynic, coldly and con!dently pointing to the countless times peo- ple have tried and failed. Yes, there have been failures aplenty – power never cedes ground easily – but we owe many of the freedoms we enjoy today to idealistic souls who joined hands and marched forward as the cyn- ics snickered off to the side. Collective action is most effective when people break down the racial cleavages that slice civil society into a hundred different groups. The Civil Rights Movement is a prime example of this, for the movement was never more powerful than when blacks were able to incorporate other non-whites and whites into their liberation struggle (Alexander 2006). ‘The present problem of problems,’ Du Bois (1999 [1920], 33) once remarked, ‘is noth- ing more than democracy beating itself helplessly against the color bar, – purling, seeping, seething, foaming to burst through. . . [but] held back by those who dream of future kingdoms of greed built on black and brown and yellow slavery.’ Democracy has poked through the veil bit by bit, letting some light through with each advance, but its full potential has yet to be unleashed upon America. This article has provided some guidance for how we might advance the march of a multicultural democracy, ways we can address racial domination. We have speci!ed three ends – intended to provide a picture of possibilities that, once in our line of vision, may be used to direct and galvanize engaged citizens – as well as some guidelines for how we might go about achieving these ends. So much more could be said – and we invite you to say it. The next word is yours. Race Ethnicity and Education 285 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 References Abu-Lughod, L. 1991. Writing against culture. In Recapturing anthropology: Work- ing in the present, ed. R. Fox. Santa Fe, NM: School of American Research Press. Alexander, J. 2006. The civil sphere. New York: Oxford University Press. Appiah, K.A. 2006. Cosmopolitanism: Ethics in a world of strangers. New York: Norton. Apple, M. 1999. The absent presence of race in educational reform. Race Ethnicity and Education 2: 9–16. Aptheker, H. 1974 [1943]. American Negro slave revolts. New York: International. Arendt, H. 1978. The life of the mind, volume two: Willing. New York: Harcourt Brace Jovanovich. Arendt, H. 2003. Responsibility and judgment. New York: Schocken Books. Baldwin, J. 1993 [1962]. The "re next time. New York: Vintage. Banks, J. 2002. Race, knowledge construction, and education in the USA: Lessons from history. Race Ethnicity and Education 5: 7–27. Banting, K., and W. Kymlicka. 2006. Introduction: Multiculturalism and the welfare state: Setting the context. In Multiculturalism and the welfare state: Recognition and redistribution in contemporary democracies, ed. K. Banting and W. Kymli- cka, 1–48. New York: Oxford University Press. Barrett, J. 1987. Work and community in the jungle: Chicago’s packinghouse work- ers, 1894–1922. Bloomington: University of Illinois Press. Barry, B. 2001. Culture and equality: An egalitarian critique of multiculturalism. Cambridge: Harvard University Press. Bell, D. 1987. And we are not saved: The elusive quest for racial justice. New York: Basic Books. Bonilla-Silva, E. 2003. Racism without racists: Color-blind racism and the persis- tence of racial inequality in the United States. Lanham, MD: Rowman and Lit- tle!eld. Borjas, G. 1990. Friends or strangers: The impact of immigrants on the U.S. econ- omy. New York: Basic Books. Borjas, G., and M. Tienda. 1987. The economic consequences of immigration. Sci- ence 235: 645–52. Bourdieu, P. 2003. Firing back: Against the tyranny of the market 2, 17–25. New York: New Press. Brown, M., M. Carnoy, E. Currie, T. Duster, D. Oppenheimer, M. Shultz, and D. Wellman. 2003. White-washing race: The myth of a color blind society. Berke- ley: University of California Press. Brubaker, R., and F. Cooper. 2000. Beyond identity. Theory and Society 29: 1–47. Brueggemann, J., and T. Boswell. 1998. Realizing solidarity: Sources of interracial unionism during the Great Depression. Work and Occupations 25: 436–82. Chavez, C. 2008 [1979]. Address to the Commonwealth Club of California, 1984. Freedom in America, ed. Kenneth Bridges, 424-30. Upper Saddle River, NJ: Pearson, Prentice Hall. Cohen, J., and J. Rogers. 1993. Associations and democracy. Social Philosophy and Policy 10: 282–312. Collins, P.H. 2000. Black feminist thought: Knowledge, consciousness, and the poli- tics of empowerment, 2nd ed. New York: Routledge. Cooley, C.H. 1966 [1918]. Social process. Carbondale: Southern Illinois University Press. 286 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 Crenshaw, K. 1991. Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review 43: 1241–99. Cronon, W. 1998. ‘Only connect. . .’: The goals of a liberal education. The Ameri- can Scholar 67: 73–80. Dewey, J. 1988 [1920]. Reconstruction in philosophy. In John Dewey: The middle works, 1899-1924, Vol. 12: 1920. Carbondale: Southern Illinois University Press.. Dewey, J. 1988 [1929]. The quest for certainty, The later works, 1925-1953, Vol. 4: 1929. Carbondale: Southern Illinois University Press. Du Bois, W.E.B. 1996 [1899]. The Philadelphia Negro: A social study. Philadel- phia: University of Pennsylvania Press. Du Bois, W.E.B. 1999 [1920]. Darkwater: Voices from within the veil. New York: Dover. Fanon, F. 2004 [1963]. The wretched of the earth. New York: Grove. Feagin, J., and H. Vera. 2001. Liberation sociology. Cambridge: Westview. Feagin, J.R., H. Vera, and P. Batur. 2001. White racism: The basics, 2nd ed. New York: Routledge. Figueroa, P. 1999. Multiculturalism and anti-racism in a new era: A critical review. Race Ethnicity and Education 2: 281–302. Ford, R.T. 2005. Racial culture: A critique. Princeton, NJ: Princeton University Press. Fortier, A.-M. 2005. Pride politics and multiculturalist citizenship. Ethnic and Racial Studies 28: 559–78. Fuchs, L. 1992. Thinking about immigration and ethnicity in the United States. In Immigration in two democracies: French and American experience, ed. D. Horowitz and G. Noiriel, 39–65. New York: New York University Press. Gitlin, T. 1996. The twilight of common dreams: Why America is wracked by cul- ture wars. New York: Henry Holt and Company. Gitlin, T. 2003. Letters to a young activist. New York: Basic Books. Gotanda, N. 2000. A critique of ‘Our Constitution is Color-Blind’. In Critical race theory: The cutting edge. 2nd ed., ed. R. Delgato and J. Stefancic, 35–8. Phila- delphia: Temple University Press. Habermas, J. 2003. Intolerance and discrimination. International Journal of Consti- tutional Law 1: 2–12. Hacker, J., and P. Pierson. 2005. Off center: The republican revolution and the ero- sion of American democracy. New Haven, CT: Yale University Press. Halpern, R., and R. Horowitz. 1996. Meatpackers: An oral history of black pack- inghouse workers and their struggle for racial and economic equality. New York: Twayne Publishers. Harvey, D. 2005. A brief history of neoliberalism. New York: Oxford University Press. Hero, R., and R. Preuhs. 2006. Multiculturalism and welfare politics in the USA: A state-level comparative analysis. In Multiculturalism and the welfare state: Recognition and redistribution in contemporary democracies, ed. K. Banting and W. Kymlicka, 121–51. New York: Oxford University Press. Huxley, A. 1998 [1932]. Brave new world. New York: Perennial. Jackson, D. 1996. Facts favor af!rmative action. The Boston Globe, October 30: A17. Jung, M.-K. 2003. Interracialism: The ideological transformation of Hawaii’s work- ing class. American Sociological Review 68: 373–400. Race Ethnicity and Education 287 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 Katz, J. 1978. White awareness: A handbook for anti-racism training. Norman: Oklahoma University Press. Katznelson, I. 2005. When af"rmative action was white: The untold history of racial inequality in twentieth-century America. New York: Norton. Kivel, P. 2002 [1997]. Uprooting racism: How white people can work for racial justice, revised ed. Gabriola Island, BC: New Society Publishers. Kymlicka, W. 1995. Multicultural citizenship: A liberal theory of minority rights. New York: Oxford University Press. Lewin, K. 1951. Field theory in social science: Selected theoretical papers. New York: Harper and Row. Metzgar, J. 2000. Striking steel: Solidarity remembered. Philadelphia: Temple Uni- versity Press. Meyer, D., and N. Whittier. 1994. Social movement spillover. Social Problems 4: 277–98. Mills, C.W. 1959. The sociological imagination. New York: Oxford University Press. Morin, R. 1997. Unconventional wisdom. The Washington Post, January 12: CO5. Mullings, L. 2005. Interrogating racism: Toward an antiracist anthropology. Annual Review of Anthropology 24: 667–93. Nemiroff, R. 1969. To be young gifted and black: A portrait of Lorraine Hansberry in her own words. New York: Samuel French. Norton, E.H. 1996. Af!rmative action in the workplace. In The af"rmative action debate, ed. G. Curry, 39–48. Reading: Addison-Wesley. Patterson, O. 1998. The ordeal of integration: Progress and resentment in America’s ‘racial’ crisis. New York: Basic Civitas Books. Pedersen, A., I. Walker, and M. Wise. 2005. ‘Talk does not cook rice’: Beyond anti-racism rhetoric to strategies for social action. Australian Psychologist 40: 20–30. Phillips, A. 2007. Multiculturalism without culture. Princeton, NJ: Princeton Univer- sity Press. Piven, F.F. 2008. Can power from below change the world? American Sociological Review 73: 1–14. Piven, F.F., and R. Cloward. 1977. Poor people’s movements: Why they succeed, how they fail. New York: Pantheon. Piven, F.F., and R. Cloward. 2000. Why Americans still don’t vote: And why politi- cians want it that way. Boston: Beacon Press. Polanyi, K. 2001 [1944]. The great transformation: The political and economic ori- gins of our time. Boston: Beacon. Reskin, B. 1998. The realities of af"rmative action. Washington, DC: American Sociological Association. Rich, M., and A. Castelan Cargile. 2004. Beyond the breach: Transforming white identities in the classroom. Race Ethnicity and Education 7: 351–65. Roberts, D. 1997. Killing the black body: Race, reproduction, and the meaning of liberty. New York: Pantheon. Sartre, J.-P. 2004 [1963]. Preface. In The wretched of the earth, F. Fanon. New York: Grove. Small, M. 2004. Villa Victoria: The transformation of social capital in a Boston barrio. Chicago: University of Chicago Press. Smith, R. 1999. Toward a more perfect union: Beyond old liberalism and neoliber- alism. In Without justice for all: The new liberalism and our retreat from racial equality, ed. A. Reed, Jr., 327–53. Boulder, CO: Westview Press. 288 M. Desmond and M. Emirbayer D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 Spanierman, L., V. Paul Poteat, A. Beer, and P.I. Armstrong. 2006. Psychological costs of racism to whites: Exploring patterns through cluster analysis. Journal of Counseling Psychology 53: 434–41. Stephen, W., and K. Finlay. 1999. The role of empathy in improving intergroup relations. Journal of Social Issues 55: 729–43. Tatum, B.D. 1997. ‘Why are all the black kids sitting together in the cafeteria’ and other conversations about race. New York: Basic Books. Taylor, C. 1994. The politics of recognition. In Multiculturalism: Examining the politics of recognition, ed. A. Gutmann, 25–74. Princeton, NJ: Princeton Univer- sity Press. Thompson, B. 2001. A promise and a way of life: White antiracist activism. Minne- apolis: University of Minnesota Press. Thompson, C., E. Schaefer, and H. Bond. 2003. White men challenging racism: 35 personal stories. Durham, NC: Duke University Press. Wacquant, L. 2007. Urban outcasts: A comparative sociology of advanced margin- ality. Cambridge: Polity Press. Western, B. 2006. Punishment and inequality in America. New York: Russell Sage Foundation. Wiesel, E. 1986. Quoted in US News & World Report, October 27, 1986. Willett, C. 2001. The soul of justice: Social bonds and racial hubris. Ithaca, NY: Cornell University Press. Winant, H. 2001. The world is a ghetto: Race and democracy since World War II. New York: Basic Books. Winant, H. 2004. The new politics of race: Globalism, difference, justice. Minneap- olis: University of Minnesota Press. Wright, E.O. 2003. Preface: The real utopias project. In Deepening democracy: Institutional innovations in empowered participatory governance, ed. A. Fung, and E.O. Wright, vii–viii. London: Verso. Wright, E.O. 2010. Envisioning real utopias. London: Verso. Wu, F. 2002. Yellow: Race in America beyond black and white. New York: Basic Books. Race Ethnicity and Education 289 D ow nl oa de d by [H ar va rd C ol le ge ] a t 0 6: 54 2 9 N ov em be r 2 01 2 
work_h7ivac2ynzaofaykd7ek6qvkoi	----	Northumbria Research Link Citation: Wilson, Tim (2016) Criminal justice and global public goods: The Prüm Forensic Biometric Cooperation. The Journal of Criminal Law, 80 (5). pp. 303-326. ISSN 0022-0183 Published by: SAGE URL: http://dx.doi.org/10.1177/0022018316668450 <http://dx.doi.org/10.1177/0022018316668450> This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/27800/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. Full items must not be sold commercially in any format or medium without formal permission of the copyright holder. The full policy is available online: http://nrl.northumbria.ac.uk/pol i cies.html This document may differ from the final, published version of the research and has been made available online in accordance with publisher policies. To read and/or cite from the published version of the research, please visit the publisher’s website (a subscription may be required.) http://nrl.northumbria.ac.uk/policies.html Accepted version, as corrected at proof stage and with final funding statement. 1 ©T.J. Wilson, 2016 CRIMINAL JUSTICE AND GLOBAL PUBLIC GOODS: THE PRÜM FORENSIC BIOMETRIC COOPERATION MODEL Tim J Wilson Professor of Criminal Justice Policy, School of Law, Northumbria University, Newcastle UK [As unnumbered footnote Corresponding author: Tim J Wilson, School of Law, Northumbria University, Northumbria University, Newcastle City Campus, 2 Ellison Pl, Newcastle upon Tyne NE1 8ST, UK. E-mail: tim.wilson@northumbria.ac.uk.] Abstract This article places sharing forensic biometric data for international criminal justice cooperation purposes within the domain of global public goods. Such cooperation is a rational response to globalization, but faces several obstacles. These range from socio-cultural and political concerns about national legal and criminal justice autonomy to the potential impact of market fundamentalism on scientific standardization and cooperation mechanism delivery. The significance of such inhibitors will vary as societal and personal perceptions of stability change. These issues are examined by analysing the progress achieved with the EU Prüm forensic biometric data exchange model. Shocks to European stability, such as the increased scale of terrorist crimes and the UK EU referendum result will inevitably test the resilience of Prüm. Combining insights from global public goods and criminal law scholarship, however, may help to identify how reactions to such shocks, including questions about future UK participation in Prüm, might be managed. Keywords International criminal justice cooperation; global public goods; forensic science standardization; market fundamentalism/neoliberalism; Brexit Introduction This article responds to the publication of Forensic Science and Beyond: Authenticity, Provenance and Assurance (hereinafter Walport) by addressing the three policy objectives falling within the Chief Scientific Adviser’s remit, namely: (a) identifying how significant emerging technology might be exploited either directly or indirectly in the national interest, (b) providing evidence to support policy making and (c) improving national resilience and security. 1 1 M. Walport, Annual Report of the Government Chief Scientific Adviser 2015: Forensic Science and Beyond: Authenticity, Provenance and Assurance vol. 1 (Government Office for Science: London 2015) 4. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506461/gs-15-37a-forensic- science-beyond-report.pdf (accessed 14 July 2016). mailto:tim.wilson@northumbria.ac.uk https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506461/gs-15-37a-forensic-science-beyond-report.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506461/gs-15-37a-forensic-science-beyond-report.pdf Accepted version, as corrected at proof stage and with final funding statement. 2 ©T.J. Wilson, 2016 Following an earlier chapter commissioned for Walport, it invests them with an international dimension, but differs from its precursor in three respects. 2 Firstly, it focuses exclusively on one scientific or technological development: the automated exchange of forensic bioinformation (DNA and finger/palmprints) data. Secondly, following the UK Refendum, consideration will be given to how this might affect UK policy making that had only several months before settled on and had obtained political approval to join Prüm. Thirdly, it considers the future prospects for the Prüm model following major shocks within the EU from terrorist crimes, which could result in a greater emphasis on security (hereinafter ‘securitization’) in international criminal justice cooperation. 3 Neither Prüm nor the international criminal justice cooperation this facilitates is a ‘final global public good’. Instead this data sharing is treated as an ‘intermediate input’ into the production of a global public good or goods. 4 Comparisons from public health are, respectively, the development of pharmaceutical knowledge and the eradication of polio. 5 Loader and Walker similarly refer to transnational policing as an intermediate input to the final good of security. 6 Therefore this article seeks to answer the following questions (a) is Prüm an effective model as an intermediate input into a global public good(s) and (b), if so, (i) why, (ii) how stable is this approach and (iii), given the Walport focus of this special issue, what are the implications of the EU Referendum results for UK law and policy making towards this model of international criminal justice cooperation? Irespective of how the final and intermediate input to the public good (or goods) are described, arguably criminal justice cooperation brings to international development the doctrinal robustness of law. This may complement the normatively rich attributes of public goods, such as government free from the taint of corruption or more generically goods contributing to the improvement of human life. This assumption is tested by the mullti-disciplinary approach in this article that enables significant congruency to be highlighted between global public goods research findings and various legal doctrines. Global public goods is a concept that originated in development economics. It was primarily intended to improve international decision making –in response to globalisation - for the benefit of poorer countries. There is a clear argument for locating Prüm in this domain. International criminal justice cooperation supports UN Sustainable Development Goal 16.3: ‘promote the rule of law at 2 T. Wilson, ‘The Global Perspective’ in M. Peplow (ed.), Annual Report of the Government Chief Scientific Adviser 2015: Forensic Science and Beyond: Authenticity, Provenance and Assurance: Evidence and Case Studies 82-93Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506462/gs-15-37b-forensic- science-beyond-evidence.pdf ( accessed 14 July 2016). 3 The term ‘securitization’ is used in this article to denote an increased emphasis within criminal justice agencies, such as police services, and their international cooperation activities on protection and prevention against security risks (including terrorism) and not in its more usual financial sense of how assets are used to guarantee loans. 4 P. Eigen and C. Eigen-Zucchi, ‘Corruption and Global Public Goods’ in I. Kaul, P. Conceição, K. Le Goulven and R.U. Mendoza (eds.), Providing Global Public Goods: Managing Globalisation (OUP, New York: 2003) at 583. 5 I. Kaul and R.U. Mendoza, ‘Advancing the Concept of Public Goods’ in Kaul et al., above n.4 at 80-89 and P Eigen and C Eigen-Zucchi, above n.4 at 576-597. 6 I. Loader and N. Walker, ‘Locating the Public Interest in Transnational Policing’ in A. Goldsmith and J. Sheptycki (eds.), Crafting Transnational Policing: Police Capacity-Building and Global Policing Reform (Hart, Oxford: 2007), n.2 117-118. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506462/gs-15-37b-forensic-science-beyond-evidence.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506462/gs-15-37b-forensic-science-beyond-evidence.pdf Accepted version, as corrected at proof stage and with final funding statement. 3 ©T.J. Wilson, 2016 national and international levels and ensure equal access to justice for all’ 7 . Deference to such ideals is found in many criminal justice cooperation texts, but may be combined with more normatively ambiguous objectives. For example, the EU- US Mutual Legal Assistance (MLA) agreement refers to the ’consolidation of the rule of law and respect for human rights and humanitarian law, as well as the preservation of peace’ and then adds ‘and the strengthening of international security’. 8 Kaul and Mendoza have observed how ‘as national borders become porous and cross-border economic activity increases, these goods become indivisible across borders or transnational’. 9 Globalisation has created an impetus for the promotion of criminal justice cooperation. It has also, particularly with terorist crimes, ceased to be geographically remote throughout the EU and has gained ‘a civil dimension’, thus blurring possible distinctions between criminal justice and security cooperation. 10 National boundaries (even maritime borders) are increasingly irrelevant economically and socially, offering little check to unauthorised entry or protection against transnational offending. 11 Similarly in a liberal democracy, at a theoretical level, criminal justice conforms to the two defining characteristics of publicness: (a) non-excludability (the producer cannot exclude any person from benefitting from it) and (b) non-rivalry (consumption by one person does not diminish its availabilty for others). 12 It is possible to classify global public goods on the basis of ‘the nature of their publicness and the conditions of their provision’ (for example natural or human-made). 13 What appears to be more pertinent, however, in a criminal justice context is how to structure cooperation to achieve ‘globalness managed to mutual advantage’. This is seen within a global public goods context, as placing the onus of proof on those proposing an international solution to justify such a strategy. 14 This offers an intial example of a degree of congruence between global public goods and legal doctrine. The former might justify an approach to international negotiations. Should the negotiations eventually result in rights-limiting legislation (inevitable with forensic bioinformation), the necessity stage of proportionality analysis places a similar requirement on the state during judicial review. The article begins by describing the principal theoretical and empirical issues covered.These arise from four factors: (i) the social nature of the good and, in the case of forensic bioinformation, an interrelationship with privacy and data protection; (ii) difficulties for policy making and resource allocation stemming from poor data about the impact of criminal justice initiatives and the burden of 7 United Nations, General Assembly, Report of the Open Working Group of the General Assembly on Sustainable Development Goals, A/68/970, August 2014 . Available at https://sustainabledevelopment.un.org/focussdgs.html (accessed 13 April 2016). 8 Agreement on Mutual Legal Assistance between the European Union and the United States, 25 June 2003, OJ L 181/34. 9 See Kaul and Mendoza, above n.5 at 97. 10 S. Medvedev and I.Tomashov, ‘Security as a Global Public Good: Common Issues for the European Union and the G8’ in M.V. Larionova (ed.), The European Union in the G8: Promoting Consensus and Concerted Actions for Global Public Goods (Ashgate, Farnham, 2012) 214. 11 Home Affairs Committee, Migration Crisis (HC 2016–17, 24) paras 27-33. 12 This article is concerned with access to justice at a theoretical level. The delivery of justice as a public good requires adequate Legal Aid funding, etc. 13 S. Medvedev and I. Tomashov, ‘The Concept and Definition of Global Public Goods’ in M. Lavrionova, above n.10 at 17-20. 14 I. Kaul, P. Conceição, K. Le Goulven and R.U. Mendoza, ‘Why do Global Public Goods Matter today?’ in in I. Kaul et al., above n. 4 at 12. https://sustainabledevelopment.un.org/focussdgs.html Accepted version, as corrected at proof stage and with final funding statement. 4 ©T.J. Wilson, 2016 proof in relation to proportionality; (iii) the extent to which the Prüm model might reflect an asymmetrical distribution of power within the EU resulting in pressure on weaker members to internalise the costs of crime; and (iv) public law concerns about the scope of EU criminal law and socio-cultural notions of national sovereignty. This section ends with a brief description of the key features of Prüm to explain how this model for criminal justice cooperation sidesteps all or some of politico-legal issues. The second section consists of an empirically based analysis of how the criminological externalities of cross-border travel within Europe assume an increasingly global character. This also illustrates how the Prüm system can generate decision-informing data about trends in these externalities or ‘public bads’ of globalization. Both may have probative relevance to proportionality in respect of rights-limiting law relating to the use of forensic bioinformation. The third and fourth sections consider the lessons from the Prüm model and alternative options for cooperation. The first key delivery issue is the extent to which Prüm implementation both ultimately depended on and possibly incentivised international scientific standardization. The second consideration is the significant national legal and institutional effort required for implementation. Both issues raise questions about the assumptions underlying market fundamentalism. The final section begins by considering the future stability of this model, particularly in the light of convergence between EC and US security policy that is accelerating because of terrorist crimes. It addresses whether an awareness of potential congruence between global public goods theory and various legal doctrines might heighten awareness of the strengths of the Prüm model in the face of the potential securitization of EU criminal justice cooperation. These issues are then brought together in the conclusion by considering their implications of this for potential UK post-Referendum options for sharing forensic biometric data for international criminal justice cooperation purposes. The Delivery and Analysis of Global Public Goods with a Criminal Justice Dimension Since the late 1990s there has been a greater appreciation of the ‘negative spillovers from the the inadequate supply of transnational public goods, notably those stemming from communicable diseases, environmental degradation, spreading conflicts and financial instability’. 15 This has introduced significant legal issues into international development debates, but global public goods with criminal justice aspects feature less prominently in policy making and research. 16 Loader and Walker – when locating international policing in the domain of global public goods - identified two elements that distinguish security from purely economic public goods, such as environmental degradation. First, an added dimension: the root problem is socially generated. Second – unlike the more objective (or at least more quantifiable) provision of a classic economic good (e.g. housing) - perceptions of security/insecurity greatly depend on each person’s subjective assessment of the 15 T. Sandler, Assessing the Optimal Provision of Public Goods: In Search of the Holy Grail’ in Kaul et al., above n.4 at 131. 16 For example, the legal focus in the 2000 Millennium Development Goals (MDGs) was international trade, finance and governance related. Available at http://www.unmillenniumprojEct.org/goals/gti.htm#goal8 (accessed 14 July 2016). Criminal justice and even security is overshadowed by such issues in the main publications by Kaul and her colleagues. http://www.unmillenniumproject.org/goals/gti.htm#goal8 Accepted version, as corrected at proof stage and with final funding statement. 5 ©T.J. Wilson, 2016 social order. 17 The second observation should be qualified by noting how significant increases in recorded crime coincided with fairly widespread social uncertainties during the early stages of intensified globalisation. 18 A similar significance might be attached to the rising general anxiety about terrorism. Legal analysis dating back to the inception of Prüm, however, helps to place this second element (a personal peception of threats and their potential consequencies) onto a more extended and justiciable continuum. International criminal justice cooperation involving the exchange of sensitive personal information, such DNA and fingerprint data, will result ( in terms of Article 8 ECHR), in an inteference with privacy and requires effective data protection in all the countries involved. 19 There is a further complication. This arises from the comparatively poor quality of criminal justice data. UK criminal justice policy rarely demonstrates rigorous evidence-based decision-making. Politicians acknowledge in their more candid moments to being ‘driven more by considerations of political advantage than by appeals to evidence’. 20 Nevertheless, if it is hypothesised that decision making in international development and global cooperation more generally is expert dominated (e.g. climate change initiatives), the insufficient range, depth and quality of data relating to criminal justice could be a significant handicap when resources for the delivery of global public goods are rationed. Prüm, however, can assist decision making in such circumstances. It can be used to produce analyses of certain kinds of transnational offences or offending. 21 Such analyses may address also the burden of proof should the proportionality of the law relating to criminal justice cooperation be challenged. 22 It has been argued that the adoption of Prüm evidences an asymmetrical distribution of power or influence in policy making within the EU. This again is chiefly dealt with later, but what follows about the general EU legal context and the specific structure of Prum is relevant to this issue. As Marper makes clear, ECtHR, through the margin of appreciation, gives Convention signatory states very wide discretion over the collection, retention and use of forensic biometric data. 23 Within the EU legal order, the paramount authority of the member states over criminal justice and security is recognised in the treaties. 24 This, however, exists to some extent in a state of tension with developing CJEU case law from Pupino onwards. 25 It is worth noting from a Brexit perspective, that Prime Minster May (as Home Secretary) accepted that bi-lateral criminal justice cooperation with 17 See Loader and Walker, above n. 6 at 114-115. 18 N. Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (CUP, Cambridge: 2008) 20-29. 19 The leading case is S & Marper v. The United Kingdom App no 30562/04 (ECtHR, 4 December 2008). See also for references to separate data protection issues, E.J. Kindt, Privacy and Data Protection Issues of Biometric Applications (Springer: Dordrecht, 2013) 221. 20 D. Faulkner and R. Burnett, Where Next for Criminal Justice? (The Policy Press, Bristol: 2012) 53. 21 For the definition of these terms see Wilson, above n.2 at 82. 22 For a recent critical analysis of the proportionality test see: J. Rivers, ‘The Presumption of Proportionality’ (2014) 77(3) MLR 409-433. 23 See Marper, above n. 19 [125]. 24 Article 4(2) TEU: ‘The Union shall respect the … State functions [of Member States], including …, maintaining law and order and safeguarding national security. 25 Case C-105/03 Pulpino [2005] ECR I-5285. Accepted version, as corrected at proof stage and with final funding statement. 6 ©T.J. Wilson, 2016 the EU, even for a country still well embedded within the TEU and TFEU as Denmark, is subject to CJEU jurisdiction. 26 ) This is potentially problematic from a human rights perspective because of the uncertain and perhaps unpromising jurisdictional interface between ECtHR and the CJEU. 27 Also Herlin-Karnell’s constitutionally focused analysis of EU criminal law suggests that its competence is far too imprecise and its development has been ad hoc rather than strategic, reflecting perhaps an inadequate knowledge of criminal law within its institutions, including the CJEU. 28 These legal and bio-ethical concerns intersect with Loader and Walker’s analysis of the obstacles to international policing as an intermediate public good. This stems from recognising tensions in the social and cultural dimensions of publicness, particularly a significant ‘socio-historical limitation’: … the sense of mutual trust, common engagement and general readiness to put things in common has been and remains strongly associated with the national state… … despite the deepening of global interdependence, the growth of institutions of global governance, and an arguably greater public conciousness of both these developments, sentiments of trust, loyalty and abstract solidarity remain stuck at national or subnational levels ... 29 This gives rise to the notion within the public goods literature on security to cooperation asymmetry (‘… governments remain extremely reluctant to cooperate on security matters …, terrorists have cooperated in networks since the onset of modern day terorism …’). 30 These convergent concerns help to shape views about the potential limits and modalities of EU criminal justice and/or security cooperation policies. These socio-cultural considerations are also congruent to debate about the scope of EU criminal law, which following extensive analysis Herlin- Karnell argues should be restricted to (a) ‘financial crimes ... linked to the concept of market creation’ and (b) the response to cross-border offending. 31 Prüm, in addition to satisfying the most abstemious prescription for the competence of EU criminal law – as a model of criminal justice cooperation – neatly sidesteps these socio-cultural problems. 32 This is so fundamental a point that it is necessary now to briefly describe the key features of the Prüm model. 26 HC Deb, 10 July 2014 vol 584, col 487. 27 S. Douglas-Scott, ‘The Relationship Between the EU and The ECHR Five Years on from the Treaty Of Lisbon’, University of Oxford Legal Research Paper Series, Paper No XX/2015. 28 E. Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart, Oxford: 2012). 29 Above n.6 115-116. 30 T. Sandler, ‘Recognizing The Limits To Cooperation Behind National Borders: Financing The Control Of Transnational Terrorism’ in I. Kaul and P. Conceiçào (eds), The New public Finance: Responding To Global Challenges (OUP, New York: 2006) 195. 31 See Herlin-Karnell above n. 28 at 237. 32 The main legal instrument is Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross- border cooperation, particularly in combating terrorism and cross-border crime. For a more detailed description of the Prüm arrangements see: H. Soleto Muñoz and A. Fiodorova, ‘DNA and Law Enforcement in the European Union: Tools and Human Rights Protection’, (2014) Utrecht Law Review 10 149-162. Accepted version, as corrected at proof stage and with final funding statement. 7 ©T.J. Wilson, 2016 Already a legal obligation for all but one of the current EU member states, the Westminster Parliament (cognizant of support from the Scottish government and the Northern Irish administration) voted in December 2015 to reverse a previous UK opt-out. 33 Iceland and Norway are members of Prüm, but not yet operational, and Switzerland has applied to join. 34 The system operates as a two stage process, but for brevity only the DNA arrangements are described here. During stage 1 anonymous data (DNA profiles are a series of numbers inputted into a digital form in standardized genetic format) are sent, usually daily, to each member state to which the transmitting country is connected for Prüm data exchange purposes. The anonymous data will only be retained in the receiving country if (a) there is an automatic ‘hit’ and (b) that ‘hit’ is scientifically valid (i.e. as a scientifically valid ‘match’) and (c) the case is of sufficient gravity, for personal details to be shared during Prüm Stage 2 about the known individual to whom the DNA profile relates. 35 However, a match between DNA profiles that are anonymous in both countries (i.e. because both were based on the DNA (a ‘trace’) of an unknown person) may, subject to national laws and inter-state agreements, be used to analyse trends etc. in cross-border offending. The key doctrinal issue arising in respect of the international exchange of forensic biometric data is proportionality. Specifically, following Marper, whether the use to which such data is put is proportionate and strikes a fair balance between the competing public and private interests. 36 The Prüm legislation, however, ensures that any questions in relation to this will be determined by relevant national laws – where in Marper ECtHR acknowledged the existence of a very wide margin of of appreciation - and not the EU framework itself. Thus, Prüm provides major scope for the national legal autonomy recognised by the the margin of apprectiation to be exercised. 37 This means that information referring to a known individual will be disclosed internationally (a) in circumstances regulated by the national law of the state holding that demographic information (e.g. rules governing which data may be held and exchanged, especially with regard to the gravity of offence 33 HC Deb 8 December 2015, vol. 603 cols 914-963 and HL Deb 9 December 2015, vol. 767 cols 1636 – 1648. 34 International Agreements Council, Decision of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross- border cooperation, particularly in combating terrorism and cross- border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto (2010/482/EU); and Swiss Federal Council, Coopération Prüm: le Conseil fédéral délivre un mandat de négociation, press noticed dated 13.03.2015. available at: https://www.news.admin.ch/message/index.html?lang=fr&msg-id=56539 ( accessed 14.06.15). 35 The Prüm process and filtering of scientifically unreliable ‘hits’ and criminologically unimportant matches is described in M.D. Taverne and A.P.A Broeders. The light’s at the end of the funnel!: Evaluating the effectiveness of the transnational exchange of DNA profiles between the Netherlands and other Prüm countries (Paris Legal Publishers, Zutphen:2015). The proposals for the introduction of Prüm exchanges into English Law made by Home Secretary (now Prime Minister) May can be found in Home Office, 2015 Prüm Business and Implementation Case Cm (2015) 9149 5-7 and 232-236 available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/480129/prum_business_and _implementation_case.pdf ( accessed 19 July 2016). 36 Above n. 19. 37 This is indicated by an analysis in F. Santos, H. Machado and S. Silva, ‘Forensic DNA databases in European countries: is size linked to performance?’ (2013) Life Sciences, Society and Policy 9:12. It is difficult, however, especially within the text allowance for a journal article to fully describe the range of variation in national laws and a restrictive / expansionist binary division of such laws though useful is also problematic. In some countries the laws governing retention will have changed since their analysis was completed. https://www.news.admin.ch/message/index.html?lang=fr&msg-id=56539 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/480129/prum_business_and_implementation_case.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/480129/prum_business_and_implementation_case.pdf Accepted version, as corrected at proof stage and with final funding statement. 8 ©T.J. Wilson, 2016 and/or the existence of a conviction) and (b) also as a result of operational judgements in both states about whether the crime is sufficiently serious to warrant the exchange of information. Such arrangements may differ under national law to take account of individual circumstances, such as the data subject’s age. 38 The Prüm legislation contains mimimum standards for data protection, but compliance is a matter for national data protection bodies and law. This is sufficiently flexible to accommodate significantly different national approaches, including the enhanced forensic biometric governance regime in England (by both the Information Commissioner and, following the Protection of Freedoms Act 2012, the appointment of a specific (forensic) Biometrics Commissioner). 39 There is a potential weakness in such arrangements as the national authorities of a transmitting state cannot know what happens to personal information from matches that have been retained in a receiving country. The classic answer would be mutual trust among EU member states, but as will be seen later even the international collection of statistics about Prüm operations is flawed and effective regulation may ultimately depend on proactive cooperation between national data supervision authorities who meet with the European Data Protection Supervisor (EDPS) and the Commission under the auspices of the Article 29 Working Party. With Brexit in mind, it is important to note that the data protection authorities of Norway, Liechtenstein and Iceland are members of that working party. 40 The EU was not particularly original in devising an approach that recognised such national autonomy. It is similar, for instance, to the rules under the Rome Statue of the International Criminal Court (ICC) (1998) for cooperation (including information sharing) with signatory states that is often seen as ’a middle ground between a vertical and horizontal model’ for state/ tribunal cooperation. 41 Given that UK accession to the Rome Statue is autonomous of its EU membership, this country’s confidence with this mode of cooperation, presumably also suggests Prüm should be an acceptable option in the event of Brexit for criminal justice cooperation more generally. The costs of Prüm implementation and the scientifc standardization required to improve the efficiency and reliability of such cooperation are not insignificant, but these will be significantly eclipsed by the national costs and benefits of forensic biometrics for purely domestic purposes. The added cost of sharing national DNA data is likely to be low. In the Netherlands the staff cost for handling and interpreting scientifically the Prüm data exchanges in the Netherlands is approximately €27 per match. 42 Prüm: The Socio-economic and Criminological Context The fate of Flight MH17 illustrates our modern globalised reality and how national resilience depends on international cooperation. The aircraft was destroyed on 17 July 2014 over Ukraine 38 See especially Articles 5, 9 and 26 of 2008/615/JHA; above n.32. 39 For the Biometric Commissioner’s powers see The Protection of Freedoms Act 2012, ss. 20-21.; For the proposed roles of the Biometric and Information Commissioners in terms of both Prüm and enhanced UK forensic biometrics governance see: Home Office, above n. 32 at 64 and 69. 40 See the entry on the EDPS website. Available at https://secure.edps.europa.eu/EDPSWEB/edps/site/mySite/Art29 (accessed 17 August 2016). 41 R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure 2 nd ed. (CUP, Cambridge: 2010) 510. 42 See Taverne and Broeders, above n.35 at 63-64. https://secure.edps.europa.eu/EDPSWEB/edps/site/mySite/Art29 Accepted version, as corrected at proof stage and with final funding statement. 9 ©T.J. Wilson, 2016 when travelling from Amsterdam to Kuala Lumpur. The majority of the victims (193 out of 298 passengers and crew) were Dutch. Sixteen of the dead were British citizens, six of whom had dual nationality. Ante-mortem samples for these British victims were collected from three countries - the Netherlands, New Zealand and South Africa - in addition to the UK. 43 DNA and fingerprint experts from many nations contributed to the identification work. During its last phase, scientists from LGC Forensics (UK) were called in, alongside colleagues from Bode Cellmark Forensics (USA) and the International Commission on Missing Persons (ICMP) based in Sarajevo (Bosnia and Herzegovina), to help the Netherlands Forensics Institute accelerate the final DNA analyses of the victims’ remains. 44 Similar collaboration (including UK forensic pathologists and scientists) on another criminal act on an even greater scale serves to reinforce the point that no country - not even one as wealthy as the USA – will necessarily have sufficient national expertise to deal with the consequences of incidents on the scale of 9/11 without international assistance. As a result of being at the forefront of free trade and globalisation, the UK legal systems adapted early to the criminological consequences of the cross-border movement of citizens. The example of England and Scotland shows that this was not at the expense of their distinctive legal cultures. In Scotland, for example, the codification of criminal procedure began much earlier than in England and state law officers retain a procuratorial monopoly over the initiation of criminal proceedings. 45 More recently, the UK Parliament has effectively ceded most legislative competency in criminal justice matters, including the governance of policing within Scotland, to the Scottish Parliament. 46 There always has been and still remains, however, an almost seamless policing based on overlapping cross-border jurisdiction as well as cooperation. An English police officer’s power of arrest is exercisable in Scotland and vice versa. These reciprocal arrangements are justiciable under the law relating to arrest (including those to protect the arrestee’s rights) of the territory on which the arrest takes place and not the UK legislation that confers these reciprocal powers. 47 The demographic logic of cross-border criminal justice cooperation (both within and outside the UK) resulting from geography, colonial history and an increasingly globalised economy can be illustrated as follows:  An estimated 795,000 Scots-born citizens probably accounted in 2001 for less than 1.5% or more of the population of England and Wales, whereas some 400,000 English born citizens account for almost 9% of the population of Scotland. 48 43 J. Williams, ‘Disaster Victim Identification’ in Peplow, above n. 2 at 90-91. 44 W. Heijnen, DVI aspects of forensic investigation, plenary session iv, 7 th European Academy of Forensic Science Conference, Prague, 11 September 2015. 45 L. Harris, ‘Scotland’ in K. Ligeti (ed.), Towards a Prosecutor for the European Union, Volume 1 (Hart, Oxford: 2013) 627. 46 Scotland Act 1998 ss. 28 and 29. The same primacy of the ‘host’ member state’s national law is applied to police actions undertaken in the territory of another member state by 2008/615/JHA, for which see n. 32 at Art. 17 (2). 47 Criminal Justice and Public Order Act 1994 s. 140. 48 The latest available data for the Scottish diaspora comes from the 2001 Census, when, for those who provided information, the figure was approximately 1.5% of the population of England and Wales. See: J. Carr and L. Cavanagh, Scotland’s Diaspora and Overseas-Born Population (The Scottish Government, Edinburgh: 2009) 8 and 14. Accepted version, as corrected at proof stage and with final funding statement. 10 ©T.J. Wilson, 2016  The UK global diaspora was estimated in 2010 to be equivalent to 10% (some 3.5% within the EU) of the UK resident population, compared with 5.5% in 2001. 49  Some 4% of the UK resident population was born elsewhere in the EU and approximately the same percentage of its resident population in third countries (i.e. outside the EU). Third country nationals disappear more rapidly from statistical scrutiny (as a result of naturalisation), consequently foreign born residents from third countries account for 8% of the UK resident population, but the proportion of UK citizens with global family links is much greater. 50 Genetically, non-European ancestry is estimated to extend to some 14% of the population. 51 This data, however, understates social assimilation. For example by 2011 2.3 million people were in inter-ethnic relationships, including 9% of individuals of a Pakistani background. 52  In absolute terms, UK residents are second only to German residents in being regular travellers to other EU countries (respectively, 31 million and 53 million trips in 2011), between twice or three times as many journeys as the next most travelled from countries, (France and the Netherlands) 53 .  In 2014-15, 118 million people (including UK residents) travelled to the UK, many on several occasions in that year, and approximately the same number left. (As a combined total this was approximately four times the resident population.) 54 Among the third country citizens who travelled to the UK during the year ending June 2014, for whom more detailed data is available, some 8.8 million were simply visitors (e.g. as tourists or attending business meetings) compared with 5.5 milion entering the country to study, work for a significant time or for permanent residency or asylum. 55 This significant diversity of resident population, families with multiple national heritages and increasing fluidity of location is typical of any wealthy country within the European Union. 56 49 T. Finch, H. Andrew and M. Latorre, Global Brit: Making the most of the British diaspora, 7 (IPPR, London: 2010). The 2001 estimate is taken from Carr and Cavanagh, above n.48 at 10. 50 Eurostat data (2012). Available at http://Ec.europa.eu/eurostat/statistics- explained/images/d/d8/Foreign_and_foreign- born_population_by_group_of_citizenship_and_country_of_birth_2012.png (accessed 11 February 2016). 51 This has been taken into account to calculate the risk of genetically derived errors when calculating random match probabilities for forensic DNA matches. See: The Forensic Science Regulator (2014), Guidance: Allele frequency databases and reporting guidance for the DNA (Short Tandem Repeat) profiling FSR-G-213 Issue 1. 52 E. Mian, ‘Race to the Bottom’ Prospect August 2016, 72. 53 Eurostat data (2013). Available at http://Ec.europa.eu/eurostat/statistics- explained/index.php/File:Number_of_foreign_trips_of_at_least_one_night%E2%80%99s_duration_for_person al_purposes_made_by_residents_of_EU_Member_States,_with_destination_in_the_EU_or_a_third_country,_ 2008-2011.png (accessed 11 February 2016). 54 National Audit Office, E-borders and successor programmes, HC 608 Session 2015-16, 5. 55 Home Office, Immigration statistics: January to March 2015 Available at https://www.gov.uk/government/publications/immigration-statistics-january-to-march-2015/immigration- statistics-january-to-march-2015 (accessed 22 July 2016). 56 Eurostat data (2016). Available at http://Ec.europa.eu/eurostat/statistics- explained/index.php/EU_citizenship_-_statistics_on_cross-border_activities (accessed 13.April 2016). http://ec.europa.eu/eurostat/statistics-explained/images/d/d8/Foreign_and_foreign-born_population_by_group_of_citizenship_and_country_of_birth_2012.png http://ec.europa.eu/eurostat/statistics-explained/images/d/d8/Foreign_and_foreign-born_population_by_group_of_citizenship_and_country_of_birth_2012.png http://ec.europa.eu/eurostat/statistics-explained/images/d/d8/Foreign_and_foreign-born_population_by_group_of_citizenship_and_country_of_birth_2012.png http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Number_of_foreign_trips_of_at_least_one_night%E2%80%99s_duration_for_personal_purposes_made_by_residents_of_EU_Member_States,_with_destination_in_the_EU_or_a_third_country,_2008-2011.png http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Number_of_foreign_trips_of_at_least_one_night%E2%80%99s_duration_for_personal_purposes_made_by_residents_of_EU_Member_States,_with_destination_in_the_EU_or_a_third_country,_2008-2011.png http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Number_of_foreign_trips_of_at_least_one_night%E2%80%99s_duration_for_personal_purposes_made_by_residents_of_EU_Member_States,_with_destination_in_the_EU_or_a_third_country,_2008-2011.png http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Number_of_foreign_trips_of_at_least_one_night%E2%80%99s_duration_for_personal_purposes_made_by_residents_of_EU_Member_States,_with_destination_in_the_EU_or_a_third_country,_2008-2011.png https://www.gov.uk/government/publications/immigration-statistics-january-to-march-2015/immigration-statistics-january-to-march-2015 https://www.gov.uk/government/publications/immigration-statistics-january-to-march-2015/immigration-statistics-january-to-march-2015 http://ec.europa.eu/eurostat/statistics-explained/index.php/EU_citizenship_-_statistics_on_cross-border_activities http://ec.europa.eu/eurostat/statistics-explained/index.php/EU_citizenship_-_statistics_on_cross-border_activities Accepted version, as corrected at proof stage and with final funding statement. 11 ©T.J. Wilson, 2016 Figure 1. Foreign nationals (% of total population) resident in EU countries (2011). Unless there is a global crisis equivalent to the 1929 Great Crash (not wholly unimaginable), it is likely that the globalised economy and the consequential locational fluidity will continue to profoundly shape the demographics and cross-border travel in the UK and neighbouring countries. North American census data supports this view. In the USA the foreign born population had exceeded the current UK figure of 8% by 1990 and by 2010 was estimated to have reached 13% of the total population. 57 The foreign-born population of Canada represented almost 21% of the total population in 2011. That is the highest such level among the G8 countries. 58 There is far less information and research, however, about the externalities (or ‘public bads’) in terms of cross-border offences or offending. Evidence about this might be judged essential for arguments about legitimate aim and capable means in a proportionality analysis, and highly significant for balancing the case for cooperation against the costs to rights of the cooperation, notably for the privacy of forensic biometric information. What is clear is that freedom of movement and migration have not affected the long-term decline in traditional (non-cyber or fraud) offences or offending. Overall crime data in the 2015 Crime Survey for England and Wales was at its lowest since it began in 1981. 59 In the twelve months ending December 2015 the number of first time entrants dealt with by English and Welsh criminal justice 57 C. J. Gibson and E. Lennon, Population Division Working Paper No. 29: Historical Census Statistics on the Foreign-Born population of The United States: 1850 To 1990, (U.S. Bureau of the Census, Washington, D.C: 1999). Available at https://www.census.gov/population/www/documentation/twps0029/twps0029.html (accessed 13 April 2016) and E. M. Grieco, Y. D. Acosta, G. P. de la Cruz, C. Gambino, T. Gryn, L. J. Larsen, E. N. Trevelyan, and N. P. Walters, Report Number: ACS-19: The Foreign-Born Population in the United States: 2010 (U.S. Bureau of the Census, Washington, D.C: 2012). Available at https://www.census.gov/library/publications/2012/acs/acs-19.html (accessed 13 April 2016). 58 Statistics Canada, Immigration and Ethnocultural Diversity in Canada (Statistics Canada, Ottawa: 2013). Available at https://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-010-x/99-010-x2011001-eng.cfm (accessed 13 April 2016). 59 Office of National Statistics, Crime in England and Wales: Year ending December 2015 5. https://www.census.gov/population/www/documentation/twps0029/twps0029.html https://www.census.gov/library/publications/2012/acs/acs-19.html https://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-010-x/99-010-x2011001-eng.cfm Accepted version, as corrected at proof stage and with final funding statement. 12 ©T.J. Wilson, 2016 agencies fell by 68% in the case of juveniles and 19% for adults since 2006/07 60 There are no national statistics for crimes committed by foreign citizens in England and Wales, but research by Johnson and his colleagues suggests that offending by the citizens of other EU countries accounts overall for some 1% of prosecuted offences. Their research indicates that where data exists for similar offending in other EU member states (approximately 4% of total crime in the Czech Republic, 3% in Italy, Germany and Denmark, 2.5% in the Netherlands, 1.5% in Slovakia, and less than 1% in Austria and Poland), it appears to be broadly consistent with or below the proportion of other EU nationals resident in those countries (see Figure 1 above). 61 Offences committed in the UK by the citizens of other EU states, are chiefly relatively low level acquisitive crime, particularly theft from shops. Such offending is also concentrated geographically in the south east, eastern counties and Cumbria rather than dispersed nationally. 62 This spatial concentration is consistent with other data and estimates. In London, where foreign-born people (not just from the EU) comprised 37 per cent of the population of central London and 33 per cent of the outer boroughs in 2013, it is reported that foreign citizens account for 25-30 per cent of arrests (approximately 50,000-66,000 arrests per annum) and an estimated 25 per cent of high-harm offenders (including organised crime group members and predatory sex offenders). 63 English prison data is difficult to interpret because of problems with convicted prisoner deportations, and laws and policies that encourage custody to be served in the country of nationality. In general, however, it appears to be consistent with ‘high-harm offender’ estimates. Some 9,895 foreign citizens (11.65 per cent of the total population, of which total nationals from other EU countries accounted for 4.98 per cent of that total) were held in English prisons on 31 December 2015. 6465 Although better data is needed, it is known from individual cases that generally low levels of offending and often for minor crimes by most offenders from other EU countries mask much more serious challenges for the police and prosecutors: (a) in finding the much smaller number of serious criminals among such residents and (b) in obtaining information to help assess the criminal threat that an identified individual poses. As this article at several points considers criminal justice cooperation in relation to security initiatives, it is worth noting a similar problem posed by the small number of terrorists within an estimated 1.8 million irregular EU external border crossings (compared with some 200 million authorised crossings) in 2015. 66 This is a problem identified by criminologists and policy makers since the 1990s, for example, in 1993: 60 Ministry of Justice, Criminal Justice Statistics 2015: England and Wales 34. 61 D. Johnson, A. Ludwig, B. Younger and M. McCloskey (2015) The Prüm Implementation, Evaluation and Strengthening (P.I.E.S.) of Forensic DNA Data Exchange: Northumbria University Final Report (Northumbria University, Newcastle upon Tyne, UK, 2014) (Unpublished) 6. Source of Figure 1 is Eurostat, above n. 56. 62 D. Johnson, ‘E.U. migrant criminal activity: Exploring spatial diversity and volume of criminal activity attributed to inter EU migrants in England’ (2014) 5 Applied Geography 48. 63 For sources see: Wilson above n.2 at 198 notes 15-17. 64 Ministry of Justice, Prison Population: 31 December 2015, 2016. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/495322/prison-population- 31-dEcember-2015.xlsx (accessed 8.April 2016). 65 For convicted prisoner deportation problems see: Home Affairs Committee, The work of the Immigration Directorates (Q4 2015), HC (2016–17 22) paras 89 – 93. 66 Commission, Stronger and Smarter Information Systems for Borders and Security COM (2016) 205 final 2. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/495322/prison-population-31-december-2015.xlsx https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/495322/prison-population-31-december-2015.xlsx Accepted version, as corrected at proof stage and with final funding statement. 13 ©T.J. Wilson, 2016 … it may not be an exaggeration to say that criminal organizations abolished national boundaries long ago. Crossing borders is no major problem to them and the losses are marginal. They rather see the border as a handicap for police and prosecution. Crossing the border is one of the trivial precautions which are routinely taken in all kinds (including the most simple forms) of organized crime. Considering these aspects, one may conclude that national borders do not improve, but reduce public safety in Europe. 67 More recent research has described in some detail the activities of the members of travelling criminal gangs in the Netherlands. Their members systematically engage in relatively petty but high volume offending and seek to evade detection by using multiple identities and crossing borders. 68 Patterns of cross-border offending and offences will vary considerably from country to country, but in the absence of a drastic reduction in visitor and foreign worker numbers, withdrawal from the EU is highly unlikely to change this aspect of UK crime. In such circumstances, the efficient international exchange of accurate information and reliable evidence with, at least, neighbouring EU member states, is just as indispensable for UK criminal justice as traditional cooperation between this country’s internal jurisdictions. The value of forensic science for linking crimes in different jurisdictions has been illustrated by the experience of countries, such as the Netherlands, that have routinely shared forensic biometric data via Prüm for several years (Figure 2). Dutch Database: the nature of profile matched (through a scientifically validated comparison) Other member state databases: the nature of profile matched Number of matches reported to Dutch prosecutors and police Anonymous profile (trace) recovered from a crime scene The profile of a known person 3,100 Anonymous profile (trace) recovered from a crime scene Anonymous profile (trace) recovered from a crime scene 2,326 The profile of a known person Anonymous profile (trace) recovered from a crime scene 836 The profile of a known person The profile of a known person 971 Figure 2. Forensic DNA data sharing: identifications made in the Netherlands (at February 2015) 69 A match between anonymous profiles recovered from crime scenes in one or more countries may have considerable value if analysts can link such information with other crimes. This may eventually lead to the identification of a possible suspect. It can certainly be used to identify trends and spatial 67 M. Killias, ‘Will open borders result in more crime? A criminological statement’ (1993) 1 European Journal on Criminal Policy and Research 11. 68 D. Siegal, Mobile Banditry: East European and Central European Itinerant Criminal Groups in the Netherlands, Eleven International Publishing: The Hague, 2014). 69 Source: Netherlands Forensic Institute, ‘Dutch DNA database has resulted in 25,000 international matches’ 2015. Available at https://www.forensicinstitute.nl/about_nfi/news/2015/dutch-dna-database-has-resulted- in-25000-international-matches.aspx (accessed 31.May 2016). https://www.forensicinstitute.nl/about_nfi/news/2015/dutch-dna-database-has-resulted-in-25000-international-matches.aspx https://www.forensicinstitute.nl/about_nfi/news/2015/dutch-dna-database-has-resulted-in-25000-international-matches.aspx Accepted version, as corrected at proof stage and with final funding statement. 14 ©T.J. Wilson, 2016 features in transnational offences and offending. Used in this way, as the examples below from Belgium illustrate (see Figure 3), forensic science data analyses inform crime prevention strategies and investigative priorities at sub-regional levels. 70 Research into Belgian Prüm matches indicated, consistent with the type of offences for which forensic bioinformation can often be recovered, that 39% of such matches related to burglary, other offences included violent theft (22%), sex offences (14%) and murder or kidnapping (4%). 71 Forensic DNA is not the only forensic science discipline that - through international forensic biometric data sharing (including potentially via Prüm) - helps to give meaning to evidence recovered by investigators or unlocks access to important information from other jurisdictions about suspects. For example, fingerprint information from the mutilated remains of a suicide bomber recovered in Saint Denis was used to identify the corpse as that of a person who had been imprisoned in Belgium. 72 Latent fingerprints deposited by a person who handled or made an improvised explosive device (IED) in Afghanistan were matched with an individual arrested as a suspected illegal 70 Information for Figure 3 provided by the Nationaal Instituut voor Criminalistiek en Criminologie (NICC) / Institut National de Criminalistique et Criminologie (INCC) from work undertaken under the PIES project - The Prüm Implementation, Evaluation, and Strengthening of Forensic DNA Data Exchange (HOME/2011/ ISEC/AG/ PRUM/4000002150). For a discussion of how such data can be used at sub regional levels see: Wilson, above n.2 at 85. 71 P. Jeuniaux, ‘Building maps of transnational crimes on the basis of Prüm’, presentation at the PIES Conference held in Brussels on 29 September 2015. 72 Adam Withnall, ‘Paris attacks 'mastermind' Abdelhamid Abaaoud killed in Saint Denis raid, prosecutor confirms’ The Independent, 19 11.15. available at http://www.independent.co.uk/news/world/europe/paris- attacks-mastermind-abdelhamid-abaaoud-is-dead-following-saint-denis-raid-prosEcutor-confirms- a6740406.html (accessed 5.April 2016). http://www.independent.co.uk/news/world/europe/paris-attacks-mastermind-abdelhamid-abaaoud-is-dead-following-saint-denis-raid-prosecutor-confirms-a6740406.html http://www.independent.co.uk/news/world/europe/paris-attacks-mastermind-abdelhamid-abaaoud-is-dead-following-saint-denis-raid-prosecutor-confirms-a6740406.html http://www.independent.co.uk/news/world/europe/paris-attacks-mastermind-abdelhamid-abaaoud-is-dead-following-saint-denis-raid-prosecutor-confirms-a6740406.html Accepted version, as corrected at proof stage and with final funding statement. 15 ©T.J. Wilson, 2016 immigrant sometime later at a border half the world away. 73 In this respect the fingerprint identification processes used as one technique for identifying the victims of the MH17 attack comes full circle. Published research has concentrated on how forensic data exchanges helps to identify suspects and criminological trends in the country where the offence has been committed, 74 but an equally important consequence of such cooperation is that it also enables criminal justice records to be shared between jurisdictions. Bail, ‘bad character’ admissibility and sentencing decisions require knowledge of criminal careers and real-world identity. This is not only a question of criminological efficiency, or even public safety. Where prior convictions may influence guilt and punishment, the law cannot be administered equitably, if prosecutors and courts can access the pertinent records relating to their fellow citizens, but not those of other residents or visitors. Access to criminals’ back- stories can sometimes only be unlocked through sharing standardized biometric data between jurisdictions. There is a parallel EU non-biometric system for joining-up the judicial records of different member states on a case by case basis: ECRIS (European Criminal Records Information System). 75 This extends to the preventative sphere and may facilitate, subject to what is permitted under national law, the exchange of conviction information relevant to employment with children. 76 If a separate biometric database cannot be used in parallel, the use of ECRIS may have to rely solely on an ability to determine through questioning the nationality of a suspect and identify the relevant countries in which he or she may have travelled. It may also have to cope with aliases or multiple identities. Little is known about the extent of such problems, but it has been estimated that in 95% of cases where third country nationals are sentenced in EU courts, no checks have even been made for relevant criminal records in EU member states. 77 ECRIS and Prüm are complementary to each other, thus, demonstrating the importance of how EU criminal justice cooperation is evolving as a system, rather than as a series of discrete international police or security cooperation initiatives or entirely separate databases. Prüm: implementation Lessons: Scientific Standardisation International cooperation, including the co-ordinated use of research funds, is essential to facilitate progress with forensic science based international criminal justice cooperation. This was recognized 73 A. Kimery, ’DHS Testing Border Biometric Program in Hunt to Identify Terrorists’, posted 22.10.15. Available at http://inhomelandsecurity.com/dhs-testing-border-biometric-program-in-hunt-to-identify-terrorists/ ( accessed 5.April 2016). 74 For recent identification studies see: Taverne and Broeders above n. 35 and W. Bernasco, M. Lammers and K van der Beek, ‘Cross-border crime patterns unveiled by exchange of DNA profiles in the European Union’, (2015) Security Journal advance online publication, doi:10.1057/sj.2015.27. 75 See: http://ec.europa.eu/justice/criminal/european-e-justice/Ecris/index_en.htm (accessed 22 July 2016). 76 Commission, ‘Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from criminal records between Member States’, COM(2016) 6 final 8-9. 77 Commission, ‘Impact Assessment Accompanying the proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA’, SWD(2016) 4, 8. http://inhomelandsecurity.com/dhs-testing-border-biometric-program-in-hunt-to-identify-terrorists/ http://ec.europa.eu/justice/criminal/european-e-justice/Ecris/index_en.htm Accepted version, as corrected at proof stage and with final funding statement. 16 ©T.J. Wilson, 2016 in the biometrics standardization aspirations of the US- Canadian ‘Smart Border Declaration’ (2001). 78 By then it was likely that there was an awareness of problem created by earlier uncoordinated national agendas during the pioneering stage of forensic DNA, with the emergence of different national multiplexes. A multiplex (marketed as a biochemistry ‘kit’) targets the forensic genetic analysis on a very small number of loci from the human genome. The analysis of only a few loci can determine whether cellular material recovered from a crime scene is identical to material donated by a known individual (‘source attribution’). DNA analysis is sometimes highly complex. Potential complications arise when small amounts and/or degraded DNA are recovered, because of the smaller genetic variation between siblings, as a result of innocent transfer, or contamination. 79 Normally, however, when sufficient and good quality cellular material is carefully recovered from a crime scene the risk of an erroneous DNA match (‘an adventitious match’) is low. Even for a technologically obsolete multiplex, such as SGM+ (based on the analysis of ten loci) in a large forensic database, such as that operating in the UK, this risk is conservatively estimated to be in the order of 1 in 1,000 million. 80 With a smaller number of loci the random probability of error is much higher, for example, with the six loci SGM multiplex the risk of error was about 1 in 50 million. 81 When national forensic science laboratories began to exchange DNA profiles there was not always a sufficient number of overlapping loci to ensure that the resulting hits/matches were scientifically valid. For example, in the Netherlands, when there were only six or seven loci in common with another country, hits/matches on the database, were respectively, 66% and 5% erroneous. 82 The strong commitment within the European political and scientific communities to make DNA sharing reliable and efficient resulted in two solutions. First, automated hits during Prüm data exchanges are monitored to identify unreliable results. If there are doubts about a hit, additional DNA testing can be undertaken to ensure that only scientifically robust matches are reported to the police or judicial authorities. 83 The latter practice is expensive and time-consuming, but such action will need to continue for many years to come. There are millions of DNA profiles - some even for national purposes (the kit improvements did more than address loci convergence problems and were intended to also improve the analysis of degraded DNA) - that have become technologically obsolescent unnecessarily early because of delayed collaborative development. Secondly, new European standard DNA loci have been introduced to ensure sufficient commonality between European multiplex. Because of a high level of global scientific cooperation, in which the 78 R. Zaiotti, ‘Practising homeland security across the Atlantic: practical learning and policy convergence in Europe and North America’ (2012) 21 European Security, 338. 79 See: P. Gill, Misleading DNA Evidence: Reasons for Miscarriages of Justice (Academic Press, London: 2014). 80 B. Bramley, ‘DNA databases’ in J. G Fraser. and R. Williams (eds.) Handbook of Forensic Science (Cullompton, Willan Publishing: 2009) 329. 81 P. Gill and T. Clayton, ‘the current status of DNA profiling in the UK’ in. Fraser and Williams, above n.80 30- 31. 82 Linda Geddes, ‘DNA super-network increases risk of mix-ups’, New Scientist, 05 September 2011 (issue 2828) . Available at https://www.newscientist.com/article/mg21128285-500-dna-super-network-increases-risk-of- mix-ups/ ( accessed 30 June 2013). 83 Above Taverne and Broeders n. 35 at 21-23. https://www.newscientist.com/article/mg21128285-500-dna-super-network-increases-risk-of-mix-ups/ https://www.newscientist.com/article/mg21128285-500-dna-super-network-increases-risk-of-mix-ups/ Accepted version, as corrected at proof stage and with final funding statement. 17 ©T.J. Wilson, 2016 role of the FBI has been particularly important, there is now a high level of concordance with those used by the other DNA standard setting countries: the USA and China (see Figure 4). EU research funding supported this game-changing reform, but it also benefited from parallel investment by the US and other governments in forensic DNA for internal investigative purposes. Public commitments at that time to expand the forensic use of DNA provided reassurance about potential market demand for private sector commercial investment, particularly by US bio-science. 84 As a result intellectual property in modern multiplex kits belongs mainly to such American companies and the commercial profits from manufacturing this basic criminal justice commodity are likely to accrue mainly in the USA. Figure 4: the international convergence of DNA multiplexes 85 Year Multiplex Number of markers(including, where appropriate, Amelogenin) Overlap with UK multiplex at that time Overlap with USA multiplex at that time/final four rows only by 2017 Overlap with China multiplex at that time England and Wales Scotland 1995 UK SGM 7 N/A N/A N/A 1998 USA Original CODIS 13 6 N/A N/A 1999 UK SGM+ 11 N/A 8 N/A 2010 China Sinofiler 15 9 11 N/A 2014 England and Wales DNA-17 17 N/A 11 8 10 2015 Scotland DNA-24 24 17 N/A 13 14 2017 USA CODIS core loci 20 15 20 N/A 14 At DEc. 2015 Original European Standard set (ESS/ISSOL) 7 7 7 6 6 At DEc. 2015 Current European Standard set (ESS) 12 12 12 11 7 At DEc. 2015 Prüm authorised loci (2008/616/JHA) 24 12 17 13/15 13 The UK gained some significant financial benefits from its pioneering role and investment in forensic DNA. UK government owned intellectual property (IP) rights was licensed to one of the major US biotech companies. In return for the unprotected IP, the Forensic Science Service (FSS) gained a substantial discount on its purchase of SGM+ plus kits over many years, which included, effectively, a royalty on all kits sold by that company. In return for the patent protected IP on a different kit (not an STR multiplex but used widely in both forensic science and molecular biology more generally), the FSS received an initial lump sum followed by royalties on all kits sold. 86 Standardisation is, in effect, an admission fee to criminal justice and security cooperation. It is worth noting here, in anticipation of points considered later about convergence in these areas between US and EU policy initiatives, how American commercial interests profited most from the standardisation of DNA multiplexes and, possibly, the overall emergence of forensic DNA. While little published evidence is available, it is important in the Walport context – of identifying how significant emerging technology might be exploited either directly or indirectly in the national interest - not to 84 This reflects several discussions with former bioscience company executives. 85 Table taken from Wilson, above n.2 at 87. 86 Information provided by a former senior FSS employee. It is unclear what happened to these arrangements when the FSS was closed by the first (Coalition) Cameron Administration. Accepted version, as corrected at proof stage and with final funding statement. 18 ©T.J. Wilson, 2016 unquestioningly accept the assumptions of market fundamentalism (or ‘neoliberalism’). 87 Successive UK governments and the EC possibly made a major error by failing to emulate, in their contribution to the development of forensic DNA, US government scientific and technical development policies. As Mazzucato has demonstrated from a wide range of examples of technological innovation fostering economic growth, it is important ’to do as the United States actually did, not just as it says it did: more State not less’. 88 Returning to the key themes of this article, the role of bio-science companies in the development of DNA multiplexes also provides a reminder that the degree of publicness of intermediate inputs into global public goods may be different to that of the final good itself. This may raise further questions about exclusivity in benefit sharing and access that may require the development of public-private partnership initiatives for the advancement of global public goods to be congruent with clear and effective public procurement and concession award laws. Prüm: Implementation Lessons: Alternative models and Enabling Effective Cooperation The multiplex issues are recorded in the academic literature relating to the development of forensic science, not least because they may have a bearing on reliability of scientific expert evidence during a trial. The legal question that needs to be noted here, however, is that having clearly satisfied the capability stage of the proportionality test, would the Prüm system satisfy the necessity test. Is there an alternative course of action capable of achieving the same aim? There is indeed an alternative and older established approach to sharing biometric forensic and other criminal justice or security information provided by Interpol. The Interpol approach differs from the Prüm model by operating as centralised database systems for fingerprints and forensic DNA. Interpol statistics are not available in the same level of detail and for extended time spans compared with Prüm, but the level of activity achieved, including for the entirely non-biometric (lost or stolen) travel documents system are given at Figure 5. 87 See, for example, J Stiglitz The Euro and its Threat to the Future of Europe (Allen Lane, London: 2016). 88 M. Mazzucato, The Entrepreneurial State (revised edition) (Anthem Press, London: 2015) at 1. Accepted version, as corrected at proof stage and with final funding statement. 19 ©T.J. Wilson, 2016 Figure 5: Interpol centralised database: available results 2008/10 and 2013/2014 89 Comparisons between the two systems are difficult because of two known problems with Prüm statistics. Firstly, a recorded ‘hit’ (i.e. automatically generated hit) does not necessarily indicate a scientifically valid match because there might be (but we cannot tell) insufficient common loci between the two profiles that are declared to be a hit. Secondly, as Prüm is a dispersed system with simultaneous results being obtained in two places, its ‘hit’/’match’ statistics may contain double counting. The 52,500 ‘hits’ achieved by 2012 through Prüm forensic DNA data sharing, however, can be conservatively recalculated. 90 By discounting the published cumulative total by the probably over stringent Dutch (‘hit’ to ‘match’) conversion and reporting data ratio of 33.3%, and then halving the result as a precaution against the risk of duplication, the result is approximately 17,000 matches in under four years. 91 This is a startlingly different level of activity to what is known about the Interpol system. To put the Prüm statistics in perspective, particularly in terms of the low levels of transnational offending noted previously, it is helpful to look at national and not Interpol data. The reduced Prüm total would still be equivalent to 3% of total DNA hits/matches published in 2013 for 89 The 2008/2009 data is taken from C. McCartney, R. Williams and T. Wilson (2010) The Future of Forensic Bioinformation. Available at http://www.nuffieldfoundation.org/sites/default/files/files/forensic- bioinformation-report.pdf (accessed 8.July 2015) and more recent data from the Interpol website http://www.interpol.int/ (accessed 8.July 2015). 90 Soleto Muñoz and Fiodorova, above n. 32 at 153. 91 C.P. van der Beek, Implementing Prüm’s step 1 in the Netherlands Issues and results, presentation at the PIES Conference held in Brussels on 29 September 2015. The Dutch conversation rate from an automated ‘hit’ to a verified ‘match’ is conservative because the Database Custodian either eliminates scientifically valid results or does not attempt to validate hits when information is unlikely to be of interest to prosecutors. http://www.nuffieldfoundation.org/sites/default/files/files/forensic-bioinformation-report.pdf http://www.nuffieldfoundation.org/sites/default/files/files/forensic-bioinformation-report.pdf http://www.interpol.int/ Accepted version, as corrected at proof stage and with final funding statement. 20 ©T.J. Wilson, 2016 all the 26 original Prüm member states, or more matches than the total number of national forensic DNA matches ever achieved in all but eight of those countries. 92 The comparative greater success of the Prüm technical model is reinforced by the data for fingerprint matches and vehicle related information responses. In 2014 the annual totals were, respectively, more than 6,000 and 2 million, by when (unadjusted for scientific validity or duplication) DNA ‘hits’ had exceeded 73,000. 93 Further perspective can be gained by looking at ‘major project’ delivery failure rates, especially where multiple IT interfaces coincide with varying degrees of legal complexity. Such comparisons are bound to some degree to be approximate, but the UK e-borders programme, designed to improve border control faced similar implementation challenges to Prüm:  It required more than 600 air, ferry and rail carriers to supply data about people they are bringing in and out of the UK, and around 30 UK government agencies were also to supply data on persons of interest. All three Prüm data sources together require three times that number of international interfaces and, particularly for fingerprints, significant inter-agency and regional connectivity within member states, and by 2014 (Year 6) had achieved over 750 international connections.  It was also suggested that a lack of clarity within UK government and among its contractors about what was legal under European law further exacerbated the difficult relationships with carriers. As, noted earlier, the Prüm system provides an international exchange framework, but with considerable autonomy in the national laws relating to forensic bioinformation. The e-borders project was initiated in 2003, much earlier than Prüm, and was intended to be completed in 2011. The UK Government signed a contract In November 2007 with Raytheon, a US- based technology and defence company, to implement the programme, but this was terminated in 2010. Following a protracted legal dispute, which was settled out of court in 2015, it was estimated that successive governments had spent ‘at least’ £830 million between 2003 and 2015 on the e- borders programme and its successors. The programme was judged by the National Audit office to have successfully delivered some valuable new capabilities, but to have failed to deliver the programme’s objectives in full. 94 To reach a balanced view of the Prüm delivery model and the e-borders project, context is all important: 92 ENSFI forensic DNA database statistics published on 4.11.2013, but no longer publicly accessible on the ENSFI website. 93 General Secretariat of the Council, ‘Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border-crime, Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border-crime ("Prüm Decisions") statistics and reports on automated data exchange for 2014’. 94 National Audit Office, above n.54, paras 8 and 14. Exact comparisons cannot be made, but by Year 7 (2010, with latest/2015 data in parenthesis) e-borders had achieved the following information flows: 50/(100)% outbound passports and 50/(80)% inbound passport, but unknown/(20)% for the intelligence ‘richer’ booking data (paras 1.15-1.16). Accepted version, as corrected at proof stage and with final funding statement. 21 ©T.J. Wilson, 2016 … IT projects in general, and large public IT projects in particular, indeed tend to fail. IT projects display an alarming rate of failure in terms of both schedule and cost overruns. Perhaps even more severely, large projects have a tendency not to deliver the promised value, and some are abandoned with a huge net loss, having failed to realize any value at all. Large scale public IT projects are typically triggered by policy reform and consequently highly visible in the media as taxpayer’s money is on the line. 95 It is also important to recognize, commonly misplaced criticism of the activities of states and supra- national bodies, that in many of the cases where the public sector ‘failed’, it was trying to do something much more difficult than what many private businesses do…’ 96 Prüm is not solely a European achievement. It benefited from the policy of successive US administrations that made a crucial unilateral contribution to international cooperation, by sharing without charge (except for installation team costs) FBI CODIS (Combined DNA Index System) software. This is used in over 50 countries globally to identify matches among DNA profiles, both nationally and also in Prüm countries for international sharing. 97 Such dependence on USA technology has not come without technical and scientific problems. As indicated in Figure 4, US multiplex do not rely on Amelogenin to determine gender for source attribution purposes. This can cause problems within Europe. Gender mismatches are ignored and amelogenin is included in the automatic counting of the minimum number matching loci. 98 Although not on the same scale as the loci overlap problem, this will result in some additional erroneous automated hits, thus continuing to add to the cost of the monitoring and validation processes described earlier. This disadvantage, however, is probably outweighed by the benefits of building the Prüm system around a single and proven set of DNA comparison software. As the new generation of increased loci multiplex profiles become more common it is likely to cease to be a significant problem for Prüm exchanges. As indicated above, despite the technical success of the Prüm model, achieving full connectivity has been slow. By the end of 2014 (Year 6) it had reached 29 per cent for fingerprints, 36 per cent for DNA and 55 per cent for vehicle/driver registration data. 99 This is probably explained by the time required for settling the national legislation needed to govern the operation of the Prüm system in each member state, the need sometimes to co-ordinate the cooperation of many different national agencies that will share data and, in the case of fingerprints, intra-national database interfaces between regional and specialist data collections. Something of the process can be appreciated from Prüm implementation processes in Poland. This is presented in Figure 6 as three distinct and consecutive cycles of activity. 95 K. Holgeid and M. Thompson A Reflection on Why Large Public Projects Fail 11 Available at https://www.jbs.cam.ac.uk/fileadmin/user_upload/programmes/emba/downloads/A_ReflEction_on_Why_Lar ge_Public_IT_ProjEcts_Fail_-_Kjetil__Mark_Thompson_s_chapter.pdf (accessed 7 April 2016). 96 M. Mazzucato, above n. 87 at 25. 97 Federal Bureau of Investigation, ‘CODIS Brochure’. Available at https://www.fbi.gov/about-us/lab/biometric- analysis/codis/codis_brochure (accessed 14 July 2016). 98 C.P van der Beek, The Prüm framework on DNA data exchange Present status and remaining issues, presentation at the PIES Conference held in Brussels on 29 September 2015. 99 General Secretariat, above n. 92. https://www.jbs.cam.ac.uk/fileadmin/user_upload/programmes/emba/downloads/A_Reflection_on_Why_Large_Public_IT_Projects_Fail_-_Kjetil__Mark_Thompson_s_chapter.pdf https://www.jbs.cam.ac.uk/fileadmin/user_upload/programmes/emba/downloads/A_Reflection_on_Why_Large_Public_IT_Projects_Fail_-_Kjetil__Mark_Thompson_s_chapter.pdf https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure Accepted version, as corrected at proof stage and with final funding statement. 22 ©T.J. Wilson, 2016 Figure 6: The Prüm implementation cycle in Poland 100 (a) Transposition/legislative implementation cycle [2005] to 2012 (b) Technical implementation cycle 2011 to 2015 Relevant existing legislation prior to Prüm (June 2008):  The Police Act (1990)  The Polish Constitution (1997)  The Code of Criminal Procedure (1997)  The Protection of Personal Data Act (1997) Legislative changes made to create the legal framework that governs the technical facilitation of Prüm exchanges:  Order no 1565 of the Police Commander in Chief dated 29 December 2005 [DNA only, and appears to have been issued in anticipation of Prüm]  The Act for the Exchange of Information with the Law Enforcement Authorities of the Member States of the European Union (2011)  The Ordinance of the Minister of Internal Affairs (2012) Other legislative changes relevant to Prüm exchanges:  The Act on Proceedings against Persons with Mental Disorders…(2013) Other legislative changes relevant to the probative significance of forensic bioinformation in Poland:  Amendments to the Code of Criminal Procedure (2013 & 2015) Assessment EU Prüm member states’ experts Initiation of routine data sharing By early 2016, sharing data VRD 28-29 Nov 2011 Jan 2012 17 countries DNA 23-25 Oct 2012 Jan 2013 17 countries Fingerprints 24-26 Nov 2014 Nov 2015 8 countries (c) Operational initiation /match filtering cycle 2012 onwards In was recognized that a decision making process needed to be initiated to determine which verified matches should be prioritized (alternatively which cases to ‘filter out for no immediate action) for further action. Relevant factors, in addition to criminologically determined priorities, such as the seriousness of the offence, will include the avoidance of potential legal inhibitors to further investigation or prosecution. For example, it will be important to have regard to date on which crimes were committed in order to avoid investigations/proceedings becoming time barred should the verified match result in strong case for prosecuting the suspected person/suspect. While the Prüm transposition and implementation processes may have been complicated and complex in many member states, Prüm implementation will have rarely taken place in a legislative or criminal justice policy vacuum. Again, taking Poland as an example and confining the observations to directly relevant legislation, concurrently with the Prüm work there were major amendments in 2013 and 2015 to the Code of Criminal Procedure. Under the Polish Constitution this regulates criminal procedure in some detail. 101 .These changes culminated in July 2015 with a switch to a more adversarial approach that appears to have created significant challenges for prosecutors, the police and the forensic science community. 102 The Code of Criminal Procedure also governs the collection and use of forensic biometric data, including uploading it to a national database. Further new legislation (The Act on Proceedings against Persons with Mental disorders….) involving forensic biometrics dealing, inter alia, with, unidentified bodies and persons who attempt to conceal their 100 The author is grateful to Professor zw. dr hab C. Kulesza and Dr. D. Kużelewski, Faculty of law, University of Bialystok for their detailed and patient introduction to the relevant Polish criminal justice legislation at a UKPFE workshop held in Warsaw on 23.10.2014 and later an officer from the International Information Exchange Department, International Police Cooperation Bureau, Police National HQ at the United Kingdom Prüm Fingerprint Evaluation (UKPFE) Project, End of Project Conference, The Hague, 14-15.01. 2016. Any subsequent error or omission is solely attributable to the author. 101 C. Nowak and S. Steinborn, ‘Poland’ in K. Ligeti (ed.), Towards a Prosecutor for the European Union, Volume 1: A comparative Analysis (Hart, Oxford: 2013) at 498-539. 102 For a brief synopsis of the changes see: M. Mączka-Pacholak, Guest Post: New Polish Criminal Procedure Code, 1 July 2015,< https://www.fairtrials.org/press/guest-post-new-polish-criminal-procedure-code/ > accessed 31 March 2016. The author was able to discuss these changes directly with legal academics, a prosecutor and forensic scientists on three research visits to Poland. https://www.fairtrials.org/press/guest-post-new-polish-criminal-procedure-code/ Accepted version, as corrected at proof stage and with final funding statement. 23 ©T.J. Wilson, 2016 identity will also have placed extra demands on forensic database management and staff during the Prüm implementation period. 103 Discussion: The Potential Advantages of the Prüm Model and will it be able to Withstand Shocks? Prüm’s technical architecture and the project implementation strategies developed by the Commission, other EU institutions and member states, even with 2014 levels of connectivity, appear to reflect successful decision making and implementation management for a project of this type. At first sight, there would seem little need to distinguish between Prüm design and implementation as an exemplar for the delivery of international criminal justice cooperation as an intermediate input into global public goods and, in its legal structure, a model likely to satisfy the capability and necessity stages of a proportionality test. Such a view could be mistaken. It should not be overlooked that EU institutions have also successfully introduced high volume central databases for external border control purposes: the Schengen Information System (SIS), the VISA Information System (VIS) and the asylum applicants and third country irregular entrants records (EURODAC). All of these contain and make use of forensic biometric data and are accessible to member states for criminal justice and security purposes. There is a distinction, however, that may be relevant to the socio- cultural issues identified by Loader and Walker. All the EU centralised systems, with the exception of SIS, hold data exclusively about third country nationals, though potentially, post-Brexit, also UK citizens. A further important question is whether the Prüm decentralised model is preferable from a legal human rights, and data protection perspective? Soleto Muñoz and Fiodorova, after noting the ‘huge difference’ in the greater volume of forensic biometric exchanges facilitated by Prüm compared with the Interpol system, even at the date of their research (completed in July 2013), did not attribute this to technical choices and implementation skills. Instead, they suggested that better national control over the data under the Prüm System, confidence in data protection, a tendency to search for information within the Schengen area first and above all mutual trust between EU countries compared with the arrangements for and context in which the Interpol system operates might explain these differences. 104 It should perhaps be emphasised that, as far as their first point is concerned, Prüm operations offer much more transparency to national data supervisory authorities and will directly reflect how each state has chosen to make use of the accepted wide margin of appreciation over the use forensic bioinformation. In these respects there are qualitative and constitutional reasons in favour of the Prüm model. This view is reinforced by a potentially powerful socio-cultural resonance, especially in a country like the UK that is cautious about ceding sovereignty or the control of aspects its international activities to supra-national bodies, such as Interpol, that are bureaucratically managed, lack transparency and are not democratically accountable. The maximum degree of legal are autonomy, reserved governance and interface with suspect rights under the Prüm model of cooperation, is comfortably like the cross-jurisdictional relationship described in the second part of this article between England and Scotland and accepted by the UK with the Rome Statue. However, it is important to stress that their other points about the success of 103 The Act of 22 November 2013 on Proceedings against Persons with Mental Disorders Posing a Threat to the Life, Health or Sexual Freedom of other Persons…. . 104 Soleto Muñoz and Fiodorova, above n.32 at 153. Accepted version, as corrected at proof stage and with final funding statement. 24 ©T.J. Wilson, 2016 the Prüm model reflect what was suggested earlier about EU criminal justice stem from how it has developed as a system and not a series of discrete projects. It is possible to go further and suggest that perhaps another socio-cultural factor may also be relevant for understanding the Prüm project. This suggestion is based on extended and frequent observations of the key players in Prüm implementation. 105 Key experts from Europol, Eurojust, the Netherlands Forensic Institute (NFI) and the German Federal Criminal Police Office (BKA), together with colleagues from highly proactive member states, especially Austria, formed a small and, as far as other member states have experienced, inclusive community to resolve implementation problems. This observation is consistent with global public goods research - albeit concerned with a different stage in the policy cycle – about the importance for national delegations to intergovernmental negotiations to be able to ensure continuity, interdisciplinary knowledge and skills within the team, together with the ability to develop and exploit an institutional memory. 106 It also has some similarities to what Zaiotti has described as practical learning after analysing the personal interactions behind some of the convergence between EU and US security policies. 107 These arguments do not address an important political consideration: equity in the distribution of ‘publicness’ in the distribution of net benefits (e.g. in the allocation of input costs betweeen richer and poorer countries and decision making). 108 In terms of the specific context of this article, does the Prüm legislation oblige states of (migratory) origin to undertake the cost of databasing criminal justice information for the benefit of destination states? In otherwords, does it force the internalization of externalities? Certainly during the initial years of Prüm concerns were expressed in Portugal about how its promotion by more influential member states might distort criminal justice expenditure priorities in that country. 109 At a more extreme level of influence, academic discourse about international security and policing cooperation warns of the potential risk of subtle ‘re- colonisation’? 110 There is certainly an element of the internalization of externalities in Prüm and, as in all economic and political relationships with significantly asymmetrical distributions of influence. Various funding models have been developed in recognition of these issues. For example, ‘a common pool’ approach based on assessed contributions reflecting national wealth and vulnerability. 111 Alternatively, 105 These observations are derived from periods as a senior UK civil servant (2003-5) and a researcher (2006- 2010 and 2012-16). 106 P Chasek and L Rajamani, ‘Steps Toward Enhanced Parity: Negotiating Capacity and Strategies of Developing Countries’ in Kaul et al., above n.4 at 245-262. 107 Zaiotti, above n.78 at 328-346. 108 I. Kaul, P. Conceição, K.Le Goulven and R.U. Mendoza, ‘How to improve the Provision of Global Public Goods’ in Kaul et al, above n.4 at 21-58. 109 C. I. McCartney, T. J. Wilson and R. Williams, ‘Transnational Exchange of Forensic DNA: Viability, Legitimacy, and Acceptability’ (2011) 17 Eur J Crim Policy Res 309; and H. Machado and S. Silva ‘Portuguese forensic DNA database’ in R. Hindmarsh and B. Prainsack (eds), Genetic Suspects: Global Governance of Forensic DNA Profiling and Databasing (CUP: Cambridge MA, 2011) 233-234; and H. Machado and S. Silva ‘Trust, morality and altruism in the donation of biological material: the case of Portugal’ (2009) 28 New Genetics and Society 103–104. 110 M. den Boer, review: ‘Crafting trans-national policing. Police capacity building and global policing reform’ (see above n. 6) (2009) 19 Policing and Society, 325-328. 111 Sandler, above n.30 at 194-216. Accepted version, as corrected at proof stage and with final funding statement. 25 ©T.J. Wilson, 2016 internalizing states might directly bear modest costs, thus acting like consumers exercising solidarity following normative reflection about climate change 112 . Prüm has been implemented under what appears to be a reasonable hybrid model with ‘significant financial and technical support’ from the Commision or other European instituions and followed by additional low operational costs for national criminal justice systems that aspire to have access to the investigative and probative power of forensic science. 113 There are clear mutual advantages to be gained from criminal justice cooperation generally, as indicated, for example, in the Scott-Baker Review of Extradition: … extradition operates on the basis of mutual benefit and obligations. Given the ease of movement of people throughout the world, the United Kingdom needs the help of the international community to fight serious crime within its borders, just as much as other states need the assistance of the United Kingdom to deal with crime affecting their interests. 114 Hence, the European Arrest Warrant (EAW) was defended by Prime Minister (then Home Secretary) May, in a move foreshadowing her advocacy of Prüm, even against fierce criticism from Eurosceptics in her own party. 115 Beyond such instrumental considerations, however, the deontological and retributive significance of the criminal law distinguishes it from administrative regulation. 116 Such considerations are evident in the extra-territorial jurisdictional powers of English criminal courts for a limited number of serious crimes. These offences range from murder or manslaughter (since 1861) to offences under the Bribery Act 2010. This may sometimes result in powerful congruence with global public goods, such as good governance. Indeed, the universal jurisdiction given to English courts over acts of torture – irrespective of the nationality of perpetrator and victim or location of the offence – goes so far as to transcend normal conceptions of criminal jurisdiction in the protection of universal human rights. 117 The shock (in the sense used in the econcomic and political sciences), from the number of deaths attributable to terrorist crimes in France (234 from 7 January 2015 to 14 July 2016 118 ), is testing the robustness of such congruence between legal doctrine, particularly on human rights, and global public goods. Such events are reinforcing the securitization trajectory of the EU criminal justice cooperation policy making agenda (or alternatively blurring the distinction between criminal justice cooperation and security as global public goods). Since 9/11 cooperation between the USA and the EU, and in North America cooperation between the USA and Canada with, sometimes, also Mexico 112 For example, consumers may be willing to internalize the externalities of energy production (health, climate change and energy insecurity) by the payment of higher prices for green energy production. See A. Longoa, A. Markandya and M Petrucci, ‘The internalization of externalities in the production of electricity: Willingness to pay for the attributes of a policy for renewable energy’ (2008) 67 Ecological Economics 140-152. 113 Commission,’Stronger and Smarter Information Systems for Borders and Security’ COM (2016) 205, 9. 114 A Review of the United Kingdom’s Extradition Arrangements (Scott Baker Review) Home Office, London: 2011), 10. 115 HC Deb, 10 July 2014 vol 584, cols 486-491 116 See, for example, P. Roberts and A. Zuckerman, Criminal Evidence, 2nd edn (OUP: Oxford, 2010) 9-14. 117 s. 134 of the Criminal Justice Act 1988; see R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart: Oxford, 2007) 54-56. 118 ‘Deaths in terror attacks in Fance linked to Islamists’ The New European, July 22-28 2016, 9. Accepted version, as corrected at proof stage and with final funding statement. 26 ©T.J. Wilson, 2016 has seen the emergence of overlapping perimeter security for North America and the EU on a quasi- Schengen shared intelligence model, though for political reasons this is often described as ‘zones of confidence’. 119 Some of the North American discussions, initially sparked by concerns about physical safety, have also appear to have been intermittently extended to cover a wider globalisation induced agenda of economic security, environmental protection, and food and product safety. 120 This is an area where congruence between security as a global public good and legal doctrine have already been severly strained. Reactions to US practices, such as extraordinary rendition and secret detention facilities, mass surveillance activities and discrimination (eg in the selective application of the visa waiver programme) have divided European instituions. The EU-US Passenger Name Record (PNR) agreement is good example of such turbulence. The first agreement (2004) was invalidated by the ECJ. Negotiations about a revised (2007) PNR agreement struggled and were only finally supported by the European Parliament in 2010. Major questions about an asymmetrical relationship remain, however, with some American criticism of the European stance on data protection when the huge US intelligence resources that Europeans could not expect to match, also defends Europe. 121 Some (even transatlantic) observations suggest that European officials have through forging close and practically orientated working relationships come to ‘tame’ some of the US unilateralist tendencies. 122 The entering into force of the EU-US 'Umbrella Agreement' on data exchanges for law enforcement was made dependent on the passage of US legislation in 2016 to enable EU citizens to bring civil actions under the US 1974 Privacy Act against the relevant US government agencies for unlawful disclosures of law enforcement records transferred to the USA. While, when reacting to European political pressures, the Commission has indicated that the Paris and Brussels (2015-16) terrorist crimes require the urgent completion of full connectivity for data systems such as Prüm and improved database interoperability for the police and border guards of all data held through single search interfaces with, thus, potentially biometric identification across all EU databases. This has been balanced by an emphasis on human rights and data protection. 123 It would be unwise to underestimate the greater influence of the USA in its clearly asymmetrical relationship with the EU and the political impact on Europe of shocks from terrorist crime. Such circumstances give traction to policy convergence, as can be seen, for example, in the eventual EU-wide PNR with mandatory information about flights into and outside the EU, and discretionary powers for similar data exchanges on intra-EU travel. 124 This proposal was rejected in 2013 by the European Parliament (on grounds of ‘necessity and proportionality’), but following the first 2015 terrorist murders in Paris, it called for such a directive to be adopted by the end of that year. 125 119 Above n.78 at 341. 120 Ibid. at 339. 121 Parliament, ‘EU-US cooperation in Justice and Home Affairs – an overview’, PE (2016) 580.892 122 Above n. 78 at 331 and 338. 123 Commission, ‘Stronger and Smarter Information Systems for Borders and Security’ COM (2016) 205 final 3- 4, 8 and 11. 124 Directive 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. 125 Parliament, Completing the adoption of an EU PNR Directive, PE (2016) 580.8 86. Accepted version, as corrected at proof stage and with final funding statement. 27 ©T.J. Wilson, 2016 Against such pressures the opportunity provided by judicial review for reflection and reconsideration of security and criminal justice cooperation measures is clearly essential. The CJEU has reserved to itself the power to invalidate a Commission finding that a third country arrangement for the transfer of personal data is lawful. Its case law, however has established the justiciability of challenges to the lawfulness of such arrangements, including the proportionality of security cooperation with the USA, before national data protection authorities and courts. 126 This is the final example in this article of the importance of congruence between global public goods and legal doctrine. Exceptional and threatening circumstances may reduce obstacles to policy convergence, particularly in an asymmetrical relationship, reducing the normal power of both socio-legal inhibitors and muffling the more clearly articulated political arguments about political and legal autonomy. Such circumstances also serve as a reminder about the ultimate public good: wise government. This relies on the third branch of government, the courts, undertaking their role in what should be a tripartite system of checks and balances. If democracy is to survive crises in an age of media fed anxieties, it is not simply a matter of majoritarian will. Its foundations are an endowment based on the experience of generations of voters, politicians, policy makers, legislators and jurists that is known as the rule of law and without which the public goods that matter will be scantily supplied. Conclusions This article has sought to examine the sharing of forensic bioninformation in order to answer a series of questions. In the author’s view several can be dealt with very briefly. Prüm is an effective model as an intermediate input into the production of a global public good(s). This stems from a number of reasons, in particular the way that it respects national political and legal autonmy over the regulation and use of sensitive personal data in a manner that can be effectively regulated by national courts. Also the governance of the system’s operation remains at a national level. Though this may need to be reinforced by international cooperation among national data protection supervisers. It is clearly unsatisfactory, however, that the published statistics for DNA sharing are probably exaggerated by duplication and do not distinguish between automated (not necessary valid) hits and scientifically validated matches. Compared with interpol’s centralised approach and mindful of the problems of major IT project delivery, Prüm implementation appears to have been highly successful. This may be partly a matter of choice over the decision of a decentralised system, but it also owes some of this success to mutual confidence in the European Union’s legal and insitutional structure, of which member state interelationships are a key element, as well as the form that the working relationships have taken among key experts from European insitutions and member states who cooperated to ensure its success. Clearly, achieving full connectivity is now important and the Commision has rightly proposed that this should be as a priority in order to make criminal justice and security cooperation more effective at a time of frequent and serious terrorist crimes. Having considered the consequences for the increasing securitisation of criminal justice cooperation and in particular growing EU-US policy policy convergence, the stability of the Prüm model can be seen to depend on the checks and balances of the European insitutions and their relationship with 126 Case C-362/14 Maximillian Schrems v Data Protection Commissioner [2015] ECLI:EU:C: 650. Accepted version, as corrected at proof stage and with final funding statement. 28 ©T.J. Wilson, 2016 national instituons. In this respect congruence between the global public good objects that Prüm serves and legal doctrine is important and compared with interpol or bilateral cooperation offer the vital safeguards of justiciability before national courts, CJEU and ECtHR. On the debit side doubts have been raised about whether the influence of market fundamentalism within the UK may have possibly resulted in little or insufficient long-term benefit for the UK national interst from its pioneering role in the forensic use of DNA. It is suggested, in terms of the Walport remit for identifying how significant emerging technology might be exploited either directly or indirectly for this purpose, that policy makers may need to understand better how US technological innovation and economic growth rely on the state Finally, given the Walport focus of this special issue, what are the implications of the EU Referendum results for UK law and policy making towards this model of international criminal justice cooperation? At the time of writing (August 2016) and the immense uncertainty over (a) what Brexit might mean and, whatever that is, (b) whether it is achievable in a rational manner, this is clearly a more difficult question. Criminal justice and security need to be broadly treated in common and such cooperation should not be approached as simply a subordinate question to this country’s future relationship with the European Union. An attempt has been made in this article to explain how the UK is too integrated within a globalised economy not to be affected by the negative spillovers of transnational crime and offending. Its physical borders and greater bureaucratic impediments to movement, therefore, are unlikely to have a significant impact on the comparatively small number of internationally mobile criminals who have committed serious crimes or who pose grave threats. A clear example of how the lack of mandatory cooperational obligations (on the EU model) can frustrate justice is the ’wall of protection’ provided by Russia for the two suspects named by Sir Robert Owen in his report into the death of Alexander Litvinenko. 127 . The conclusions in the inquiry report about the fact of and responsibility for the murder of Mr Litvinenko (paras 10.10 - 10.13) are expressed in terms used by the Inquiry Chairman to indicate his personal judgement to the criminal standard of proof (see para 2.20). The UK lost some of its global influence on 23 rd June 2016. With securitization increasing pressure for EU-US convergence on crimimal justice and security issues, there will be no scope (even if there were the time and resources to pursue them) for UK bespoke solutions. Moreover, it is possible to discern, even in North America, a growing appetite for zones of security and/or criminal justice cooperation on an integrated Schenghen model; and , possibly, picking up another Walport theme, eventually environmental and consumer protection goods regulation. International relationships among G8 countries and their immediate neighbours appear to be moving away from shopping lists with access to a database here or mutual assistance there. Physically and legally the UK is and will remain in the EU sphere of influence in such matters and policy makers need to carefully study the nature of the relationships achieved in this respect by Prüm members such as Iceland and Norway. Obviously such analyses must be updated to take account of some of the more recent developments noted in this article, such as the recently conceded rights to EU citizens to be able to litigate against 127 The Litvinenko Inquiry: Report into the death of Alexander Litvinenko, HC (2015-16) 695, para 9.179 Accepted version, as corrected at proof stage and with final funding statement. 29 ©T.J. Wilson, 2016 US government agencies for the misuse of criminal justice or security data sharing. Serious thought also needs to be given to possible socio-cultural reactions, if the price of a summer holiday in Spain for a British citizen might in the future be the retention of sensitive personal information on a central EU database. Particularly where that data could be used by a policeman or border guard with access to any EU criminal justice or security system, and without any UK national governance of the data or the use of such information being justiciable in this country’s courts. Acknowledgement The author wishes to thank colleagues and criminal justice professionals at a Sage-sponsored seminar for their helpful comments and questions about an earlier draft of this article. Other more specific acknowledgements are to be found in the footnotes. Declaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Research on which this article is based was undertaken as a result of participation in two projects: The Prüm Implementation, Evaluation, and Strengthening of Forensic DNA Data Exchange (PIES) and The United Kingdom Prüm Fingerprint Evaluation (UKPFE). Both projects were supported by the ISEC Programme Prevention of and Fight Against Crime of the Directorate General Home Affairs of the European Commission (project numbers: HOME/2011/ISEC/AG/PRUM/4000002150 and HOME/2012/ISEC/AG/4000004396). Responsibility for the content of this article lies solely with the author. The European Commission is not responsible for the contents of this article or any views expressed herein. 
work_haqux5lcxzbppcl3kll6ojoenu	----	CY416B/Elster-FM.tex P1: JZP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 15:27 Closing the Books Transitional Justice in Historical Perspective JON ELSTER Columbia University iii P1: JZP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 15:27 published by the press syndicate of the university of cambridge The Pitt Building, Trumpington Street, Cambridge, United Kingdom cambridge university press The Edinburgh Building, Cambridge cb2 2ru, uk 40 West 20th Street, New York, ny 10011-4211, usa 477 Williamstown Road, Port Melbourne, vic 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org C© Jon Elster 2004 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2004 Printed in the United States of America Typeface Sabon 10/13 pt. System LATEX 2ε [tb] A catalog record for this book is available from the British Library. Library of Congress Cataloging in Publication Data Elster, Jon, 1940– Closing the books : transitional justice in historical perspective / Jon Elster. p. cm. Includes bibliographical references. isbn 0-521-83969-6 – isbn 0-521-54854-3 (pb.) 1. Political crimes and offenses. 2. Justice and politics. 3. Ex post facto laws. 4. Revolutions. 5. Restorative justice i. Title. k5250.e44 2004 303.6′6–dc22 2004043581 isbn 0 521 83969 6 hardback isbn 0 521 54854 3 paperback iv P1: JZP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 15:27 Contents Preface and Acknowledgments page ix part i the universe of transitional justice 1 1 Athens in 411 and 403 b.c. 3 2 The French Restorations in 1814 and 1815 24 3 The Larger Universe of Cases 47 part ii analytics of transitional justice 77 4 The Structure of Transitional Justice 79 5 Wrongdoers 136 6 Victims 166 7 Constraints 188 8 Emotions 216 9 Politics 245 References 273 Index 289 vii P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 part i THE UNIVERSE OF TRANSITIONAL JUSTICE Transitional justice is made up of the processes of trials, purges, and reparations that take place after the transition from one political regime to another. A fuller characterization is provided in Chapter 4. The task of the present book is, first, to describe the variety of cases of transitional justice and, second, to propose an analytical framework that can help us explain the variations among the cases. Part I is devoted to presentation of the cases. In the first two chapters I describe several historical examples in some detail. Chapter 1 describes the processes of transitional justice that occurred in the wake of the restorations of Athenian democracy in 411 and then again in 403 b.c. In Chapter 2, I discuss the measures of retribution and reparation that took place in France after the two Restorations of the Bourbon monarchy in 1814 and 1815. Chapter 3 is a more compact survey of transitional justice in other cases, mainly transitions to democracy in the twentieth century. There are several reasons that I single out the Athenian and French episodes for a fuller discussion than what I provide for other cases. First, they will be less known to most readers than the more recent cases. Second, they show that transitional justice is not limited to modern regimes nor to democratic regimes. Third, both cases show exceptionally clearly that in transitional justice, nations can learn from experience. The measures taken after the second restoration of Athenian democracy were shaped by what was perceived as excessive severity in the first. Conversely, tran- sitional justice after the Second French Restoration was shaped by the perceived failure to strike hard enough in the First. In our century, too, transitional justice can be shaped by the memory of earlier transitions, the most striking instance being the three German transitions of the twentieth 1 P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 2 The Universe of Transitional Justice century: after World War I, after World War II, and after reunification in 1990. On each of the last two occasions, many of those who wanted to hold the outgoing regime to account were adamant that they would not repeat the mistakes that had been made the previous time.1 In Belgium, the desire to hold speedy trials of collaborators after World War II was shaped in part by the memory of the failure to prosecute those who had collaborated with the Germans during World War I (see Chapter 8). 1 On the back cover of a book documenting the lack of denazification of the West German judiciary (Friedrich 1998), a high judge and a law professor both draw the lesson that the same error must not be repeated in dealing with the East German judiciary. For a criticism of this argument, see Rottleuthner (1994). For the relation between 1918 and 1945, see Chapter 7. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 1 Athens in 411 and 403 B.C. i. introduction Democratic transitional justice is almost as old as democracy itself. In 411 b.c. and then again in 404–403 b.c., the Athenians saw the over- throw of democracy by an oligarchy, followed by defeat of the oligarchs and restoration of democracy.1 In each case, the return to democracy went together with retributive measures against the oligarchs. In 403, the Athenians also took steps toward restitution of property that had been confiscated by the oligarchic regime. The next episode of transitional justice occurred more than two thousand years later, in the English Restoration. The Athenians had two episodes of transitional justice that followed closely upon each other. It seems likely that after the first episode some learning took place, shaping the next occurrence. After the collapse of the first oligarchy in 411, the Athenians restored the pre-oligarchic democ- racy, carried out harsh retribution, and enacted new laws to deter future oligarchs from trying to take power. What they did not do was to attack the root causes of the oligarchic coup. In 403, the returning democrats reacted differently. On the one hand, they enacted constitutional changes to eliminate features that had brought democracy into disrepute. On the other hand, they pulled their punches in dealing with the oligarchs, 1 In the following I rely heavily on Ostwald (1986). My indebtedness to Hansen (1991) will also be obvious. The most recent monograph on the transition in 403 is Loening (1987). Although many of the stark statements in the text ignore important controversies in the scholarly literature, I do not think this affects the substance of the argument, as summarized toward the end. 3 P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 4 The Universe of Transitional Justice preferring the forward-looking goal of social reconciliation over the backward-looking goal of retribution. ii. athenian democracy To understand the two transitions and the decisions taken in their af- termath, we have to go back to the beginning of Athenian democracy almost two hundred years earlier. In 594, Solon was given carte blanche by two opposing factions to reform the laws.2 Three of his reforms are directly relevant for transitional justice. He enacted an amnesty law that restored civil rights to those who had been disenfranchised, except ex- iles condemned on charges of homicide or massacre, or for seeking to establish a tyranny.3 This law was the model for the amnesty legislation of 405 b.c. that, in the wake of the defeat of Athens by the Spartan fleet, canceled some of the harsh sentences passed after the overthrow of the oligarchs in 411.4 (The purpose of the amnesty was to reunite the city, but it came too late.) Also, Solon enacted a “peculiar and surprising law, which ordains that he shall be disfranchised who, in time of faction, takes neither side,” the citizen being expected to “espouse promptly the better and more righteous cause, share its perils and give it his aid, instead of waiting in safety to see which cause prevails.”5 Finally, he introduced an important change in the Athenian legal system. Then and later, there was no public prosecutor. All suits had to be brought by private individuals. Solon’s reform was to allow any citizen to start a prosecution, either on behalf of the injured person or simply in the public interest. One effect of the law was to create an incentive for frivolous suits by “sycophants,” or professional denunciators, who would bring a suit against a wealthy man in order to blackmail him by offering to drop the case. They were widely resented by the upper classes, and vigorously prosecuted under the second oligarchy. Other pieces of Solon’s legislation are indirectly relevant, qua impe- tus to a process of democratization that eventually led to untrammeled popular rule triggering an oligarchic backlash. He abolished debt slavery, thereby creating an important condition for effective democracy. Before 2 The basic sources are Plutarch’s Life of Solon and Aristotle’s Constitution of Athens. The latter is usefully interpreted and corrected by Moore (1975). 3 Plutarch, Solon xix.3–4. 4 Andocides, “On the Mysteries,” 73–79. 5 Plutarch, Solon xx.1. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 5 he enacted his reforms, all citizens could vote in the assembly and serve on the popular courts, but eligibility for some offices was reserved for the nobles (“wellborn”). After the reforms, all criteria of eligibility were defined in purely economic terms, so that birth no longer was decisive. Among the four property classes, members of the lowest were excluded from all state offices. For the most important offices, only members of the top class or the two top classes could be chosen. In 457, members of the third-ranked class became eligible for some of these high offices. Yet even though members of the lowest class remained ineligible, they exer- cised great influence as members of the Assembly, of the popular courts, and (after the reforms of Cleisthenes in 507) of the Council of the Five Hundred, which controlled the agenda of the Assembly. The rights to vote and to hold office may be spurious if their exercise is costly. As Aristotle notes in the Politics (1308b–1309a), “If office bought no profit, then and only then could democracy and aristocracy be combined; for both notables and people might have their wishes gratified. All would be able to hold office, which is the aim of democracy, and the notables would be magistrates, which is the aim of aristocracy.” A decisive step to a more effective democracy was taken by Pericles in the mid–fifth century, when he instituted daily pay for jurors, for members of the Council of the Five Hundred, and for magistrates.6 The class structure could also influence politics by its link to military functions. By and large, the navy was manned by the lowest property class (thetes) and the infantry (hoplites) by the second lowest. As Athens in the period that concerns us was more or less constantly at war, the presence or absence of these groups in the Assembly could sway the outcome: Radical democracy was introduced by Ephialtes’ reforms in 462 which were passed by the Assembly when 4000 hoplites of the middle class were away fight- ing in Messina. Fifty-one years later the radical democracy was replaced by the oligarchic rule of the Four Hundred, and that constitutional change was passed by an Assembly in which the thetes were probably under-represented, because the meeting was held outside the walls and because the entire Athenian navy was stationed off Samos.7 6 Payment for going to the Assembly was established only in the following century. By contrast, at that later time payment for magistrates seems to have been abolished, arguably “a retreat from radical-democratic principles and another sign that the Athenians from 403/2 had opted for a more ‘moderate’ form of democracy” (Hansen 1991, p. 241). Other aspects of this retreat from radical democracy are discussed in Section IV. 7 Ibid., p. 126. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 6 The Universe of Transitional Justice Not surprisingly, the impetus for the restoration of democracy came from that very same navy at Samos. The second-highest group, the cavalry (hippeis), was seen as closely associated with both oligarchies. As members of the Assembly, the Athenians could vote laws and de- crees, but it remained to implement them. Perhaps the most remarkable feature of the full-fledged Athenian democracy is the degree of control the citizens exercised over those who were to carry out their decisions. Al- though most officeholders were chosen by lot, the important offices were elective. Whether chosen by lot or elected, all magistrates had to undergo a mandatory scrutiny before and after taking office. Whereas the ex ante scrutiny was usually a formality (but see Section V for exceptions), the ex post examination could be a serious business. Moreover, magistrates were also subject to prosecution for “crimes against the state.” These control functions had originally been lodged in the Areopagus, an elite body consisting of former high officials belonging to the highest property group, but after the reforms of Ephialtes, they devolved on the Council and finally on the popular courts. By the mid–fifth century, a succession of reforms had created the poten- tial for abuses of unrestrained popular power.8 As reflected in the title of Martin Ostwald’s work, the Athenians had popular sovereignty but not yet the rule of law. For a while, as he also writes, “Pericles’ intelligence and psychological and political insight prevented unreason from dominat- ing policy.”9 One cannot, however, judge the robustness of institutions by looking at the outcomes they generate under good leadership: Enlightened statesmen will not always be at the helm. The next generation of lead- ers, of lesser stature or lesser prudence, showed the vulnerability of the 8 We may wonder how this came about. There was certainly no democratic revolution. Although the masses may have used their voting rights to expand their power, this does not seem to have been the main mechanism. Rather, the elites found it in their interest to sponsor popular measures. Ober (1989), p. 85, notes that “by the time of Cleisthenes, the elites recognized mass ambitions as a new weapon to use against each other. As a result, politically ambitious elites actively sponsored democratizing reforms. . . . Ironically, as the elites gained victories over their enemies by sponsoring democratic reforms, there were fewer and fewer institutions that they could control directly.” Similarly, Ostwald (1986), pp. 179–80, writes that “Ephialtes’ reforms had the effect of establishing the sovereignty of the people in political affairs, but that does not mean this was their intent. His primary purpose may well have been to outflank those who had been most effective in supporting Cimon’s now-discredited policy of ‘giving a higher priority to the interests of Sparta than to the expansion of his own country.’” Ober’s comment is especially interesting, in that it suggests that the elites were engaged in something like a prisoner’s dilemma, in which they all lost power by trying to outdo one another in appealing to the people. 9 Ibid., p. 200. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 7 institutions. Although the system contained some safeguards,10 these were least effective in the supremely important realm of military decisions. iii. the first oligarchy and its demise Athens had strong expansionist and imperialist traditions. At its height around 460, the Athens-led Delian League comprised nearly two hundred member states in the Eastern Mediterranean. The idea of empire appealed both to the Athenians’ desire for glory and to their desire for tribute. Yet when decisions to go to war were taken by the popular assembly, they were not always wise. In particular, the disastrous Sicilian expedition of 415 was undertaken on a wave of popular enthusiasm, against the more realistic assessment of Nicias. Summarizing Thucydides, Ostwald writes that Nicias himself recognizes that the sobriety and circumspection of his seasoned military expertise have little chance of stemming the irrational enthusiasm of the Assembly (6.9.3). Even before Alcibiades had opened his mouth, lust for adven- ture had made the commons deaf to Nicias’ warnings: a Sicilian expedition would only swell the number of already existing enemies (6.10); even if the expedition succeeded, it would be difficult to control a large population from a great dis- tance, and if it failed in any way, the Sicilians would join the Spartans, eager to recoup their lost prestige, in attacking Athens itself (6.11), and what strength had been recovered after the recent plague should not be dissipated on alien ventures (6.12).11 The effect of the disaster was “the rise of oligarchic opposition, putting all the blame on the leaders who had persuaded the people and on the people themselves for being cozened by them.”12 In the summer of 411, the oligarchs staged a coup and terrorized the assembly into abdicat- ing its powers to them. Organized as the Council of the Four Hundred, they stayed in power for four months only, as the alliance with Persia on which they had counted fell through and the naval troops at Samos turned against them. The restoration of democracy, including transitional justice, took place in two steps. The first (or “intermediate”) successor regime, which lasted 10 These safeguards included notably the use of delegation of decision making to smaller bodies and delays (Ostwald 1986, pp. 78–79; Hansen 1991, p. 307). See, however, Ruzé (1997, Chap. 22) for important reservations to the idea that the role of the Council in preparing proposals for the Assembly served as a delaying device. 11 Ostwald (1986), p. 318. 12 Hansen (1991), p. 40. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 8 The Universe of Transitional Justice for about eight months, was a truncated democracy, limiting franchise to the Five Thousand, “of which body all who furnished a suit of armor were to be members.”13 The regime immediately engaged in what Ostwald calls “a relentless prosecution of extremist oligarchs.”14 Three of them were tried and two executed for treason, because they went on an embassy to Sparta after news of the revolt of the troops at Samos had reached Athens. Some avoided trial by going into exile, only to return in 403 to become members of the Thirty Tyrants. After the restoration of the full democracy, “vindictive measures against those who had been associated with the Four Hundred widened in scope.”15 Soldiers who had stayed in the city during the regime of the Four Hundred suffered partial loss of their political rights.16 Three democrats are cited as having exploited the retributive apparatus for private gain.17 An oligarch who had already been tried and convicted under the intermediary regime was retried under a more serious charge. Yet three indicators show that the measures were not simply victors’ justice. First, as Ostwald adds, “it was a prosecution not a persecution: we hear of no lynchings or terrorism but only of orderly legal pro- ceedings initiated soon after the new regime had been established.” Sec- ond, many who served on the Council of the Four Hundred to the very end were tried and acquitted. Third, the restored democracy resisted the temptation of retroactive legislation. Because there was no law against attempts to overthrow the democracy, the three oligarchs had to be prosecuted for treason; others presumably were not prosecuted at all. Although the new regime enacted a law against such attempts, the legisla- tion was prospective, not retroactive. It was intended to deter “oligarchic recidivism,” not to punish members of the oligarchy that had just been overthrown.18 13 Thucydides, The Peloponnesian War, 8.97.1. This measure, and the abolition of pay for public office, were voted by the people as a whole. 14 Ostwald (1986), p. 401. 15 Ibid., p. 420. 16 Andocides, “On the Mysteries,” 75–76. 17 Lysias, “Defence against a charge of subverting the democracy,” 26. 18 Ostwald (1986), p. 418. In his account of why the “intermediary regime” tried three oligarchs for treason but not for their “revolutionary activities,” Ostwald (1986), p. 402, cites the fact that “their accusers had themselves been active in establishing the Four Hundred and had been members of the Council but had turned against the extremists and were now leaders of the new regime.” After the restoration of the full democracy, this self-serving reason was presumably less important in the explanation of democratic self-restraint. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 9 iv. the second oligarchy and its demise The next oligarchic regime owes its origin to an event that both discredited the democracy internally and made it vulnerable to external threats. After a great victory in a sea battle against the Spartan fleet off the Arginusae Islands in 406, the Athenians tried eight of their generals for failure to rescue the surviving sailors (or perhaps for a failure to recover the bod- ies of the dead). The proceedings, which may have involved breaches of legality,19 led to the condemnation of all the generals and the immediate execution of the six who were present in Athens. The charged emotional atmosphere that made this outcome possible is captured in Xenophon’s description of what happened when a member of the Council, Callixenus, proposed to vote over the guilt of the generals without a proper trial: Euryptolemus . . . and some others served a summons upon Callixenus, alleging that he had made an unconstitutional proposal. And some of the people applauded this act, but the greater number cried out that it was monstrous if the people were to be prevented from doing whatever they wished. Indeed, when Lyciscus thereupon moved that these men should also be judged by the very same vote as the generals, unless they withdrew the summons, the mob broke out again with shouts of approval, and they were compelled to withdraw the summonses. Furthermore, when some of the Prytanes [the executive committee of the Council] refused to put the question to the vote in violation of the law, Callixenus again mounted the platform and urged the same charge against them; and the crowd cried out to summon to court those who refused. Then the Prytanes, stricken with fear, agreed to put the question – all of them, except Socrates, [who] said that in no case would he act except in accordance with the law.20 The phrase that I have italicized is commonly taken as the most ex- treme expression of unconstrained popular sovereignty in Athens. There is a special irony in that one of the executed generals, Thrasyllus, had been a key actor in restoring the democracy in 411. Although later “the Athenians regretted their action and voted that charges be brought against those who had deceived the people, Callixenus among them,”21 this could not undo the twofold harm that had been done. First, the episode rekin- dled divisions among the citizens and strengthened those who distrusted the democrats. Second, in choosing new generals to replace those who had been executed, the Athenians favored loyalty to the democracy over military competence. In itself, this would not have mattered had the 19 For opposing views on this important point, see Ostwald (1986), pp. 439–41, and MacDowell (1978), pp. 178–79. 20 Xenophon, Hellenica, I.vii. 21 Ibid. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 10 The Universe of Transitional Justice Athenians accepted a peace offer from Sparta after the defeat at Argi- nusae. According to Aristotle, the Assembly rejected the offer because it was deceived by Cleophon, whom he depicts as a notorious demagogue.22 Whether the Assembly acted emotionally or took a calculated gamble based on distrust of Sparta,23 the outcome was disastrous. Led by less- than-outstanding generals, the Athenians suffered a devastating defeat in the battle of Aegospotami in 405, which marked the end of the Athenian empire. In the wake of the defeat, a second oligarchy was installed in 404 under Spartan auspices. The reasons why the Spartans preferred to install a relatively autonomous oligarchic “Vichy” regime, rather than a puppet “Quisling” government, remain conjectural.24 The peace treaty included provisions for the return of the oligarchs who had gone into exile after the collapse of the previous oligarchy, and a vague clause allowing Athens to retain its “ancestral constitution,” a phrase susceptible of several interpretations. In practice, the regime installed by the Thirty Tyrants, as the new oligarchic leaders came to be called, was one of terror. Among other things, they required each of their members to prove his mettle by killing one metic (alien resident). Also, more than fifteen hundred citizens were killed. One motive for the atrocities may have been revenge: The leading oligarch Critias “showed himself eager to put many to death because . . . he had been banished by the democracy”25 after the demise of the previous oligarchy. For some oligarchs, the ultimate goal may have been to remake Athens on the austere model of Sparta.26 Economic gain may also have been a motive. To consolidate their rule, the Thirty created a privileged body of Three Thousand, as they came to be called, and expelled the rest of the citizens from the city. The expelled took up residence in Piraeus, the main port of Athens. Ultimately, with the assistance of an exile democratic army, they routed the oligarchs in battle and killed two of their main leaders. The Spartan leaders once more pulled their punches and supervised a treaty of reconciliation between “the men in the city” and “the men in Piraeus.” According to Aristotle, the terms of the reconciliation were as follows: Those of the Athenians who had remained in the city and wished to leave should live in Eleusis, where they should retain full citizen rights, have complete 22 The Constitution of Athens xxxv.1; see also xxviii.3. 23 For the latter view, see Kagan (1987), pp. 378–79. 24 Ibid., pp. 405–10. 25 Xenophon, Hellenica, II.iii. 26 Ostwald (1986), pp. 485–87. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 11 self-government and enjoy their incomes. The temple was to be common to both sides. . . . Those living at Eleusis were not allowed to visit the city of Athens, nor were those living in Athens allowed to visit Eleusis, with the exception for both sides at the celebration of the Mysteries. The people at Eleusis were to contribute to a defence fund from their revenues like the other Athenians. If any of those leaving the city took over a house at Eleusis, they were to do it with the agreement of the owner; if agreement proved impossible, each was to select three assessors, and the owner was to accept the price they fixed. Any inhabitants of Eleusis ac- ceptable to the new settlers were to live with them there. Those wishing to move out to Eleusis had to register within ten days of the swearing of the reconcilia- tion oaths if they were in the city at the time, and move out within twenty; those abroad had the same periods from the moments when they returned to Athens. Nobody living at Eleusis could hold any office in the city of Athens until he had been registered as having moved his residence back to the city. Homicide trials in cases where someone had killed or wounded a person with his own hands were to be conducted in accordance with traditional practice. There was to be a total amnesty covering everyone except the Thirty, the Ten, the Eleven and the gover- nors of the Piraeus; even they were to be immune from prosecution once they had rendered their accounts. . . . Those who had held office in the city were to appear before citizens with taxable property. On this basis those who wished to leave could leave the city. Each side was to repay separately the money which it had borrowed for the war.27 The terms of the agreement need some comments. Both sides had to swear an oath to the effect that they would “harbor no grievance” against anyone except for one specific act and four specific groups. Pros- ecution for murder was possible when the accused had killed “with his own hands” (autocheiria). “The means which the Thirty had employed to eliminate their opposition made it difficult, however, for potential plain- tiffs to demonstrate autocheiria in its strictest sense. Few victims of the oligarchy were murdered outright; more often they were deposed by an informer on a spurious charge, arrested, convicted before the oligarchic Council (unless a trial were dispensed with altogether) and compelled to drink hemlock.”28 The four groups excluded from the amnesty were the Thirty Tyrants, the Ten who succeeded them in a brief transitional stage before the restoration of democracy, the Eleven who were responsible for executing the orders of the Thirty, and the governors of Piraeus who administered the port on behalf of the oligarchy. The reference to “render- ing accounts” is to the ex post scrutiny to which all officials were subject. 27 The Constitution of Athens xxxix. 28 Loening (1987), p. 83. The example of Polemarchos discussed in Section V indicates that the demand for each member of the Thirty to kill one metic did not imply that they had to do it by their own hands. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 12 The Universe of Transitional Justice Normally, the scrutiny was carried out by a popular jury chosen by lot among all citizens or even by the assembly as a whole. In this exceptional case, the requirement of scrutiny by citizens with taxable property en- sured that nobody from the lowest property group (thetes) would sit in judgment of the oligarchs, so that former members of the Three Thousand would be overrepresented on the juries.29 It is relevant to mention here that the normal ex post scrutiny was widely seen as a manifestation of untrammeled democracy, capable of leading to “excesses, injustice and plain inefficiency,”30 as when generals were punished for defeats that might be due simply to bad luck.31 Hence, stacking the juries in favor of the oligarchs may have been proposed or accepted by the democrats to signal their intention to retreat from extreme forms of popular rule. The clause may of course also have been proposed or imposed by the Spartans to protect their former allies.32 Other evidence that I shall cite shortly suggests, however, that the returning democrats were willing to limit retribution for the sake of civil peace. Although Aristotle does not mention the fate of property confiscated by the oligarchs, other texts show that this issue was also covered by the treaty. In the summary of Thomas Loening: Individuals who had purchased confiscated goods will retain possession of them, and any property which had not been auctioned off will revert to the original owner. . . . This provision only involves movable property. Presumably, the origi- nal owner would have to establish undisputed title to these unsold goods before regaining possession of them. Acceptance of the reconciliation agreement meant a renunciation of all legal claims to movables confiscated and sold by the oligarchy. There may have been a provision whereby the exiles could repurchase their goods for the amount of money paid by the buyer, provided that he were willing to sell. Such a clause would prevent profiteering on the part of persons who had bought confiscated property cheaply and who then later attempted to sell it back to the original owner at an inflated price. There would be no obligation to resell, unless the buyer wanted to do so. . . . Not all confiscated property remained in the hands of the purchasers. The reconciliation treaty ordains that immovable property, such as land and houses, will be returned to their former owners . . . on the condition that they paid.33 29 Ostwald (1986), p. 499. 30 Ibid., p. 78. 31 See, for instance, Kagan (1981), pp. 318–20. 32 I disagree, therefore, with Loening (1987), p. 49, when he argues for a different reading of Aristotle’s text, on the grounds that “[i]n all likelihood the exiles would not concede such an important advantage which would probably result in the exoneration of many of the oligarchs.” 33 Loening (1987), pp. 51–52. The last clause (“on the condition that they paid”) is conjectural. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 13 The most significant provision is the distinction between the confiscated goods that had been sold to private citizens and those that remained in the hands of the state. With regard to the former, which might legitimately be claimed by both the old and the new owners, the treaty settled in favor of the new owners. While the new owners were not necessarily oligarchs, they had certainly profited from the oligarchy, yet their gains were not canceled. Here, too, we can see evidence of a willingness to compromise on the part of the returning democrats. The main architects in restoring the democracy were Thrasybulus and Archinos. Thrasybulus, who had led the democrats in exile, was concerned with rewarding those who had struggled on their side. Consequently, he proposed “to give citizenship to all who had had a part in the return from Piraeus although some were manifestly slaves.”34 Archinos was worried, however, that this might change the balance of power in the city too much in favor of the democrats. When the proposal was passed by the Assembly, he had it annulled through a graphe paranomon, a device by which the Athenians could reconsider their own past decisions. Aristo- tle, who praises this move by Archinos, also cites approvingly two other actions, both of questionable legality, that he undertook to cement the reconciliation. First, he arbitrarily abridged the deadline for registration for emigration to Eleusis, thus compelling oligarchs to stay in the city “against their will.”35 Aristotle refers to this as a “sound move,” perhaps because he thought the balance of forces would be as upset by oligarchs leaving the city as it would be by giving voting rights to returning slaves.36 Second, [w]hen one of the returned exiles began to violate the amnesty, Archinus haled him to the Council and persuaded them to execute him without a trial, telling them now they would have to show whether they wished to preserve the democracy and abide by the oaths they had taken; for if they let this man escape they would encourage others to imitate him, while if they executed him they would make an example for all to learn by. And this was exactly what happened; for after this man was put to death no one ever again broke the amnesty.37 An editor of the text comments that Archinos’s “action in attacking someone for violating the amnesty was indeed right, for the only way of 34 Aristotle, The Constitution of Athens xxxx.2. 35 Ibid., xxxx.1. 36 After a few years, however, “the atmosphere in Athens had changed sufficiently to enable Thrasybulus to try again, this time with more discrimination and success, to fulfill his promise to those who had fought on his side” (Ostwald 1986, p. 509). 37 Aristotle, The Constitution of Athens xxxx.2. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 14 The Universe of Transitional Justice reestablishing the state after such a traumatic period was for the Athenians to turn their backs on the past, but it is legitimate to ask whether an illegal execution was the best way of reestablishing the rule of law.”38 In turning their backs on the past, the Athenians resorted to the methods of the past – but they only had to do it once. Although the amnesty did not altogether eliminate lawsuits related to behavior during the oligarchy,39 these were isolated events. A final restraining measure initiated by Archinos, not mentioned by Aristotle, was the enactment of the procedure of paragraphe, perhaps best translated as “counteraccusation.” It is described in a passage from Isocrates that is worth citing at some length: Now after your return to the city from Piraeus, you saw that some of the citizens were bent upon bringing malicious prosecutions and were attempting to violate the Amnesty; so, wishing to restrain these persons and to show to others that you had not made these agreements under compulsion, but because you thought them of advantage to the city, you enacted a law, on the motion of Archinos, to the effect that, if any person should commence a lawsuit in violation of the oaths, the defendant should have the power to bring a paragraphe; the magistrates should first submit this question to the tribunal, and that the defendant who had entered the plea should speak first; and further, that the loser should pay a penalty of one-sixth of the sum at stake. The purpose of the penalty was this – that persons who had the effrontery to rake up old grudges should not only be convicted of perjury but also, not awaiting the vengeance of the gods, should suffer immediate punishment.40 The new procedure thus had a double purpose. The immediate aim was to deter attempts to bring suit in violation of the amnesty. The broader end was to show that the reconciliation agreement treaty had not been imposed by the oligarchs or their Spartan allies, but freely chosen by the democrats in order to promote the good of the city. The moderation displayed by the victorious democrats was quite re- markable.41 In Thucydides, for instance, we find numerous accounts of the horrors of civil war that might have led us to expect a far worse outcome. 38 Moore (1975), p. 272. 39 Loening (1987), Chap. III, has a full account of the cases that arose. 40 Isocrates, Against Kallimachos 2–3. 41 In his catalogue raisonné of violent episodes in classical Greece, Bernard (1999) does not note the lack of vindictiveness following the demise of the oligarchy in 403. The contrast he draws (pp. 423–24) between the vindictiveness of pre-Christian societies and the charitableness of Christianity leaves no room for simple prudence. One can abstain from revenge merely because one perceives that it will be counterproductive, which arguably is what the Athenians did in 403. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 15 The willingness to show clemency went hand in hand with constitutional reform intended to remove the root causes of oligarchic discontent. A key provision stated that “[t]he magistrates shall under no circumstances whatever employ a law that is not part of the written code. No decree of either Council or Assembly shall have higher authority than a law. No law shall be directed against an individual without applying to all citizens alike, unless an Assembly of six thousand so resolve by secret bal- lot.”42 Also, legislation was removed from the Assembly and delegated to a smaller group of nomothetai. In Ostwald’s words, “The procedures are democratic, since they mandate repeated discussions in the Assem- bly before a new law can be validated, but they represent a restriction on popular sovereignty because the validation does not come from the Assembly but from a broadly based group of nomothetai.”43 Even that smaller group was subject to constraints. If the Assembly, in its annual review of all legislation, found that a set of laws was unsatisfactory, it had to elect five men to speak in the defense of those laws before the matter could go forward to the nomothetai. These long-term measures, which impose procedural constraints on popular rule,44 complement the short- term measures that were taken to alleviate the enmity between oligarchs and democrats. The reconciliation treaty brought about amnesty, but neither oblivion nor silence. Although there are examples of “gag rules” that take certain matters off the table to protect social peace,45 the amnesty decree of 403 is not among them. The clause stating that the Athenians should abstain from harboring grievances did not, as is sometimes asserted,46 impose a total ban on referring to past strifes. It provided immunity for prosecution but did not exclude that a person’s behavior under the oligarchy could be relevant for his suitability to hold public office. Membership of the Council in this period seems to have been viewed as more aggravating than simply belonging to the Three Thousand, although less serious than being one of the Thirty. Nor was the amnesty violated by the decrease in pay for the cavalry, who had largely supported the oligarchy, or by an increase 42 Andocides, “On the Mysteries,” 87. 43 Ostwald (1986), p. 522. 44 MacDowell (1975), p. 74, states that “after the turmoil of 403 the Athenians . . . wanted to make it difficult for themselves to introduce changes in the laws.” Ostwald (1986) similarly writes that the reforms “show that law was to be supreme in the new democracy and that the demos could no longer regard whatever it pleased as valid and binding.” 45 Holmes (1989). 46 E.g., by Loraux (1997). P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 16 The Universe of Transitional Justice in pay for the mounted archers, who were more likely to have opposed it.47 The cavalry could also be punished by other means. When asked to send troops to Persia, “the Athenians sent some of those who had served as cavalrymen in the time of the Thirty, thinking it would be a gain to the democracy if they should live in foreign lands and perish there.”48 v. lysias To explore some of these issues, and to view other aspects of the amnesty through the eyes of a contemporary, I shall consider some speeches of Lysias (ca. 458–380). As a resident alien in Athens, he belonged to a group targeted for persecution by the Thirty Tyrants. His brother Polemarchos was put to death by the tyrants, and Lysias himself had a narrow escape. In three speeches delivered between 403 and 399, Lysias discusses moral issues concerning the oligarchs, their supporters, the resisters, and the beneficiaries of their rule, as well as those who chose to remain neutral. In one speech, he personally accuses one of those responsible for the murder of his brother. In another, he writes as a hired pen for a citizen defending himself against the accusation that his passive behavior during the oligarchy makes him ineligible for public office. In the third, Lysias is himself penning such accusations. The speech “Against Eratosthenes,” one of the Thirty, was probably given at the scrutiny of the latter after the fall of the oligarchy. As noted earlier, the jury is likely to have been stacked in his favor, whence certain constraints on the rhetorical strategies Lysias can deploy. Lysias begins by stating that the Thirty moved against resident aliens, alleging that they were hostile to the administration: Therefore they had an excellent pretext for appearing to punish while in reality making money; in any case, the State was impoverished and the government needed funds. They had no difficulty in persuading their hearers, for those men thought nothing of putting people to death, but a great deal of getting money. So they resolved to seize ten, of whom two should be poor men, that they might face the rest with the excuse that the thing had not been done for the sake of money (6–7).49 47 Loening (1987), p. 119; Ostwald (1986), p. 506. 48 Xenophon, Hellenica, III.1.4. 49 The passage raises an intriguing question: Exactly whom were the Thirty trying to fool? In including two poor individuals, the Thirty showed that they were subject to what I have called the “imperfection constraint” in the process of misrepresenting one’s preferences (Elster 1999, pp. 375–80). If the stated aim of an action (persecuting resident aliens for their political views) coincides too well with the agent’s self-interest (confiscating their P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 17 Lysias then states that Eratosthenes had arrested Polemarchos in the street and taken him to prison, where he received the order to drink hemlock: “[M]y brother, as I said before, was put to death by Eratos- thenes, who was neither suffering under any private wrong himself, nor found him offending against the State, but eagerly sought to gratify his own lawless passions” (23–24).50 Against a possible defense by Eratos- thenes that he was acting out of fear and just following orders (25), Lysias responds by asking “whom, in fact, will you ever punish, if the Thirty are to be allowed to state that they merely carried out the orders of the Thirty?” (29–30). Toward the end of his speech, Lysias joins together the “men of the city” and the “men of the Piraeus” as victims (92), saying that he wants to recall the events of that period so that both groups will remember their grievances against the Thirty and their common desire for revenge. He says to the men of the city, “You were so oppressed by the rule of these men that you were compelled to wage war against your brothers, your sons, and your fellow citizens” (92). The purpose of the argument is clearly to make the men of the city, who were overrepresented in the jury, think of themselves as co-victims with the exiled democrats, rather than as co-perpetrators with the Thirty.51 Whereas it would be absurd for Eratosthenes, a member of the Thirty, to claim to have acted under coercion by the Thirty, that excuse is available to their supporters. Yet with the end of the oligarchy, the excuse is no longer valid: “[I]f you condemn this man, you will declare your indignation at the things that have been done; but if you acquit him, you will be recognized as aspirants to the same conduct as [the Thirty], since today nobody is compelling you to vote against your judgment” (90–91). wealth), the claim of being politically motivated lacks credibility. To create an appearance of political motivation, the Thirty would either have to abstain from prosecuting some wealthy individuals or to prosecute some poor ones; the latter strategy is the one Lysias mentions. Yet at the time when the Thirty published a list with the names of the Three Thousand, they decreed “that none of the Three Thousand could be put to death without a verdict of the Council but that the Thirty had the right to put to death anyone not on that list” (Ostwald 1986, p. 486). Since that decree was probably given before the measures against the resident aliens (ibid., p. 487), it is hard to see whom they needed to “persuade.” 50 Note that Lysias here suggests an alternative way in which Eratosthenes could have sought to misrepresent his motives, by claiming to act for personal revenge rather than for gain. In Elster (1999), p. 213, I argue that for the Athenians, acting for revenge, although an inferior motivation to acting for the good of the state, was superior to that of acting out of self-interest. 51 D. Cohen (2001) emphasizes this aspect of much of the post-403 rhetoric. 
work_gppcjjxbqjeodigel56nm6h75e	----	Electronic copy available at: http://ssrn.com/abstract=2592876 1 Ethics, Law and Social Justice Kiyoung Kim Professor of Law and Governance The Research Institute Chosun University Electronic copy available at: http://ssrn.com/abstract=2592876 2 I. Ethics and Responsibility Introduction Ethics and responsibility would be a vexing or awesome topic that the contemporary citizen more likely wishes to avoid to giving his or her views or opinions. That is perhaps because the society transforms rapidly and turns to become more diverse from the past decades. These concepts, on the other, comes not in the ancient or middle era classics, but from the near modern context in 18 th England and French (Cooper, T., 2012). In dealing with the nature and relationship between the two concepts, another notion of morality also comes into a comparative context. Morality, if often interchangeably used with the ethics, could be seen in some differences that ethics is a dimension one step removed from action. So we used to preach our dependents or subjects to conform their conduct to the kind of moral demand, “Exert your best to the interest of nations or society,” “Practice a love and humiliation with brothers, sisters and neighbors,” “Never be drunken while driving,” “Do not commit an adultery or do not steal other’s property,” and the likes. Law, then, would be a minimal of morality which prescribes a prohibited conduct and corresponding criminal sanctions proportionally with the gravity of culpability or social harms (2012). Those concepts might share a common element in a great extent, but could be made distinguished in some of subtleties. US Government on Review One organization comes readily into my mind since it is now engaged in serious problems involving the international human rights, morality, war and politics. The US government facing an issue of Syria tragedy and use of fatal chemical weapons is illustrative. The middle east nations have long been a region of world attention with a political instability, terrorism, antipathy and confrontation and occasional carnage of wars. Most recently Saddam Hussein was held a war criminal to be executed from his unlawful invasion of Kuwait, and Bin Laden also perished from the American justice about his terrorism. Kaddafi also was driven to disappear for his dictatorship and undemocratic cruelty, and many others including an Egyptian consequence of turmoil and radical transformation in 2013. Syria has been charted notorious to perpetrate a years of genocide and persecution which, in years through, awakened the global minds of peace and humanity. The organization, US government, is largely considered a quasi-police regime for the international peace and human rights, which constitute two sublime ideals that the current international community upholds. It operates basically within the US constitution and international laws, but the nature of business possesses a high extent of international politics and diplomacy. Notably, they have to legitimate their sanction or war of alleged justice from UN or other ground of international laws. As the US acts in some ultimate supremacy of UN Security Council in this area of controversy, the right to veto entertained by five major permanent member states in the Council is generally determinative although some grey occasions of legitimacy could be raised and disputed by scholars. Domestically, the issue has ambiguities also involving a constitutional authority waging a war between the Congress and President. It most always tends to avoid a judicial review in its substance and merits since the judiciary often abstains on the ground of political question doctrine. Most practically, the organization has to focus on the attitudes or collaboration of key allies, seriousness of problem, and international atmosphere, risks involved, and the post-war consequences. 3 Ethics and Responsibility with the Neighboring Concepts Across the four concepts mentioned above, i.e., ethics, responsibility, morality and law, we can verify instantly that those share a common ingredient, to say, public value or humanity, religious and traditional beliefs, social custom, exposure and common experience, shared passion, standard of reason in the prevailing context of society and some of learned interplay or receipt among the gross base of people or organizational members. If we consider a morality were to be prime to penetrate the whole of four, we may have a basic dichotomy between the deontological and teleological paradigms of moral assertion (2012). The deontological version of morality would possess a more quality of absolutism on a desired human conduct and behavior. That likely defines a context of each individual in the face of God or prevailing custom, and meditates through the flesh and spiritual ideals. The deontological approach, thus, often induces one unavoidable solution and prefers a consummation of ideals without alternatives or options. This less likely allows the circumstances or relativistic nature of moral issues to operate in guiding the conduct of individual or organization. It would, in general sense, only be possible in a limited scope of inalienable values, more likely be pertinent with an individual than organization, more religious than social in apprehension, less likely to compromise and so on. The teleological frame of morality often presupposes a utilitarian concept, hence, more likely relativistic, circumstantial, interactive or communicative, reciprocal, evolutionary, and etc. It pursues a greatest good in the greatest number, and has quality to compromise and improve (2012). Then, this dichotomy, in some sense, could be seen to correspond with two perceptions of J.S. Mill on liberty, to say, hedonic nature of pleasure and higher pleasure. In the context of organization and public administration, the teleological concept of morality contributed profoundly to the ethics of bureaucracy and responsibility of public employees. An exploration of ethics would be in two ways, which are descriptive of the process how the individual or organization applies their ethical concept to their conduct and organizational decision making (2012). The other would be normative so that the leaders or decision makers are compelled or practically demanded to abide by and uphold a certain set of values, job requirement, organizational culture and workplace democracy. Some Thoughts on Their Relationships From the above, we can derive several points of relationship between the ethics and responsibility. First, the ethics are presumed on some of societal or organizational context while the responsibility is affiliated with a role, discipline, or sanction and particularized form of realized ethics (Laureate Education Inc., 2013). Without the concept of role or responsibility, the ethics would be practically small thing to be only instructive and inculcating. The ethics are generated and continue or evolve in interplay with the system, process, culture, intelligence and rationale or reason, which, if in a specific context, would be prevailing and governing if some lesser extent of coercion and compulsion than law. Hence they are more objective and persistent on the given society and organizations, but can conflict among each other if deviated from a specific sphere. For example, the ethics between the interested nations about a Syrian incident would not be same or even conflict about the phenomenon and governing ethics. On other case, we may see a 4 conflict of ethics between the justice department and Mafia organization. Given that a Huntington’s forecast on the clash of culture denotes as a most factor in the contemporary world politics, the conflict of ethics would be more bureaucratic or organizational in connotation and mid-colored between the law and culture. This implies that the ethics could be more specific, more organized and tangible in recognition and apprehension of the concerned, more operationalized in action, convincing, and substantial or comprehensive, which is other than culture, but might be lesser than law. This implies that the ethics would be more readily applied to the concept of responsibility, and offers the basis to pursue a responsibility other than culture (The Internet Encyclopedia of Philosophy: Ethics, 2013). Given this attribute, the US government would be more properly conceived in view of ethics and as one of organization rather than the nation or state, which lacks the kind of absolute legitimacy unlike the domestic politics (2013). If we say culture, that would mean a kind of retreat or high of conceptual drawback because of its rigidities and irreconcilable nature at basics. On the other hand, more formalistic approach from the normative nature or international law, that would lack an agility or strategic aspect to secure a peace or human rights. This conception would be practically less wrong if we guess on a more likelihood that President Obama and his national security council would consume much of his time on, inter alia, strategic slides or projections, action or time plan, involved stakeholders than the books describing the cultural differences or historical antipathy as well as than the UN chapter, constitution or statutes. Conclusion: Application of the Concepts Then, the ethics US government has to identify and respect would not be new in a vast context of established sensibilities or understanding. As a quasi-police role state in the world, we could be conventional and less skeptical of what decision US government has to make and act. Perhaps I would not be incorrect to label the US a quasi-police role state if bipolarity or multi-polarity would be respectfully suggested by the scholarly circle of international politics. That would be dissimilar with the late 1990’s and early millennium years, that the ethics or responsibility from a war and the military operation, in its process, could also not be the same. Obviously, the President and his council members would assume a divergent and complicated context of cooperation and collaboration if Russia vetoed a military operation. UK, traditionally a key ally in the international peace keeping operation, denied a ready collaboration unless any sufficient evidence are to be gathered to support the legitimacy of action by further steps of UN. Then the ethical nature of this issue might turn to be more likely a morality dispute which would be less organized and requires a solitude of basic beliefs (Laureate Education, Inc., 2008). This aspect shows a dynamism or more circumstantial nature of ethics than law or morality, which would be organizational or bureaucratic than the state or religion. The responsibility may be viewed in two spheres, i.e., objective and subjective (Cooper, T., 2012). The ethical administrators have a deep awareness of values, beliefs, traditions, norms and standards, and specific context of organizational goals and democratic virtues. They are conforming to the ethics of organization and do not breach it, which flavors in any given or objective context of system and interaction on ethics. When we consider the subjective responsibility on ethics, we often require them to exercise his best wisdom and inner process to reach some specific decision in the belief to uphold the ethics. Hence, responsibility seeks to unravel the specific application of ethics and can be viewed as enhanced and particularized form of ethics to ensure a process reengineering and vitality 5 or morality of organizational performance. Given its political nature of issue, the responsibility of President and his cabinet or council members also largely are political. Hence, unethical decision, which would perhaps be to undermine the set of values or democratic virtues, realistic lesson from the past, general conviction of American people, and amicability of international community, might bring a loss of next election, domestic reaction in an acid criticism and international disrepute of American prestige. References Laureate Education Inc. (2013). Course Preview and Course Introduction :Ethics and Social Justice. Cooper, T. (2012). The Responsible Administrator. San Francisco, CA: John Wiley & Sons. Laureate Education, Inc. (2008). Ethics and social justice. Baltimore: Author. "Philosophical Roots" with Amanda Baker (approximately 11 minutes). The Internet Encyclopedia of Philosophy: Ethics. Retrieved Sep. 2, 2013 from http://www.iep.utm.edu/ethics/. The Internet Encyclopedia of Philosophy: Responsibility. Retrieved Sep. 2, 2013 from http://www.iep.utm.edu/responsi/. http://www.iep.utm.edu/ethics/ http://www.iep.utm.edu/responsi/ 6 II. Some Thoughts on the Morality and Ethics The Concepts, their Quality and Connection Morality is generally defined as a code of conduct as the guide for an action or conduct, which would be formed, upheld, and testified by any particular society or social groups (Stanford Encyclopedia of Philosophy: Morality, 2013). In comparison, ethics is often discussed about the ways of desired state for an agent or being where he or it could thrive or rest in pleasure, philia, good character and good will (Stanford Encyclopedia of Philosophy: Ethics, 2013). Ethics, therefore, may be approached in our usual contact, say, friendship. Ethical conduct or behavior often leads to a friendship in which an individual would consider the factors, say, usefulness, good moral character or pleasure in making a friend. For Aristotle’s, a friend could not be many, but small in number since the true friendship could only be possible by protraction of lived experiences and sharing. Hence, the ethics often can be more friendly engrafted with the discourse of leadership and organization. Morality often is said of a minimal of law, and this description also could be true between the ethics and morality. Hence, morality offers a basic ingredient of ethics that the immoral leaders would never be received as an ethical leader. Ethics, however, generally requires something more in addition to the moral requirements (2013). Morality would repudiate an organicism generally that the reason, religion, tradition and social custom are a principal source to found the elements of morality. Ethics, therefore, concerns a relationship, interactive dimension, and constructive pleasure in sharing and existence. Morality would pursue a human aspect leading to some of inviolable code of conduct, and often be conceived to cover a general base of people within the society. That leads to the difference that morality would be more friendly with the politics and citizenry while the ethics would be more linked with the bureaucracy and various forms of organization. This would bring that the scope of influence would differ. Morality would be seen as more plenary and influence in a larger scope as in the case of Kantian universalism or J.S. Mill’s essence of civilized liberty. However, the conflict, at least a differing perception about the morality, is some of usual phenomenon as we see in the Oriental and Occidental virtues. For example, Good Samaritan law dictates the moral obligation, later developed into the principle of case law, that nobody betrays the nature of order, hence morality in our concern, even if we does not offer a rescue effort for the person in predicament. Once he is involved in the rescue activities, the duty is created to tender any best reasonable way to save him or her from the danger and perils. Oriental morality, as propounded by the Saint as named Mencius, goes otherwise that one is intuitively driven and morally demanded to rescue a drowning child. Other illustrations about a different concept of morality would span widely with the Muslim, Christian, Quakers, homosexuals, Buddhist adherents, and even between the socialists and liberalists (Stanford Encyclopedia of Philosophy: Morality, 2013). In this purview of subtlety about the unversalization and sectarianization, morality could not be said definitely to enjoy a larger scope of respect than the ethics. A morality often phases in the dimension, which is fundamental and basic, and that possesses the quality to expand and even coerce. The typical contrast as perceived by Roman rulers between the citizens of Rome and barbarians of periphery may presuppose a superiority of their morality, civilization, system and tradition. One historian also comments on the nature of western imperialism as a moral conquest and westerners’ lesson against the Orient or uncultivated barbarianism. Kantian universalism, and his protégé, Hegel’s thesis d’état raison perhaps would work as a prelude 7 for a Hitler’s excessive or abusive expansionism of Germanian sanctity or superiority against the exterior morality. So the morality possesses a character of ultimacy and inviolability, hence, fairly religious, but on reason, custom and tradition which would be a relative factor to intercourse with other group or society of different morality. This relativism would require a tolerance more than the ethics since the moral conviction is fundamental and easily embedded in any irreconcilable beliefs. It also can be made keenly affiliated with the politics on campaign and organization that a dissidence or sectarianism is a matter of course to shape the federal constitutionalism in the American continent in 18 th century. Ethics, on the other, is formed relatively and interactively to reach some of pleasant state. Hence, it entails the quality of human condition and eclectic nature depending on the circumstances. Hence, the word can be dealt with the concept of social justice as seen in the title of this course (Laureate Education Inc., 2013). The concern of social justice or welfare, in the earlier of 20th century, plainly reveals an evolution of circumstances from the orthodoxy in belief between the liberalism and quest for a political dominance in the mid of 19 th century. If the latter assimilates an operation of morality through the basics of capitalist society, the turn of 20 th century to see the social justice would come possible as the kind of ethics from a general base of improved wealth, a market failure and polarization of society, increased representation and extended role of the elected officials, and so on. As Aristotle postulated, the ethics can be facilitated by the paradigm of virtuous agent, which would be mutatis mutandis a proactive nature of character in the contemporary equation. Hence, it is positive and proactive while the morality would largely be defensive and conservative on the tradition or basic disposition of each person or agent. His three companion idols, say, contient, incontinent, and evils, is simple but facile to show the contrast involving the four types of character (Stanford Encyclopedia of Philosophy: Ethics, 2013). Contient is a knoweldged person, but stern to keep staying with the counter-pressure. Incontientis ignorant, and did not appreciate the nature, condition, necessary things and events. This, of course, leads to any vulnerability and weaknesses in responding to the counter-pressure. Evils are out of merits to obfuscate and confuse the nature of challenges or undermine the existing conditions to harm an agent or organization. The virtuous agents, in comparison, would be a most idealistic quality as a leader or governor, but this does not necessarily means these persons are best lived nor always bring an affirmative consequence to improve and cultivate. For the Aristotle’s case, the good character and good will come into play to construct an understanding of ethics (2013). One other important focus was drawn from the intelligent or knowledge dimension of human condition, what he called philia (2013). So the concept likely represents a modern dualism about an inner human dimension which cover a consciousness or cognizance and intent. As Duke William conquered the Great Britain in 1076, an agent acts on his intent and will, who would perhaps operate their firms or enterprises on good will.As Sir. Coke and Blackstone spelt on the principles of common law, the leaders of organization are some knowledgeable person to guide the followers in any kind of blackletter rules, often implicitly, however, in his dimension of philia. Aristotle viewed a priori existence of political community or polity before an agent or person. This implies that the ethics and virtue of leadership are one of central qualities although he saw a happiest life in philosophers or their ways of living. These ingredients to compound into the whole of ethics simply show a major difference from the morality. To say, the morality is orienteered dominantly toward an inner dimension of humanity, but the ethics often is expressed in the apparent way, and is interchanged interactively and relationally. Morality often pursues a self- perfection, consistency with the 8 code of conduct in fulfilling a satisfaction of self, as well as avoidance of self collapse. That nature would be dominant even if we occasionally encounter an agent or entrepreneurs morally condemned in the newspaper stories or others. We can see that the knowledge or intent comes to serve relationally and enables a beginning point to interact and lead. A theory of appreciative inquiry would show this in a fashion. The leaders or strategy finders begin his job by inquiring, hence knowledge, in the intent, hence will, to encourage their target organizations. Ethics would require a course of journey to create a pleasant condition of humans and organizations while the morality often is given by an exterior authority as a code of conduct. Hence, a friendship illustration in the discourse of ethics is fairly apposite to reveal the context of differences for two thesis (2013). Let me say some more about recent chores. Reflections from My Recent Experience I have experienced some of displeasure in conducting my lecture series. I have borrowed a specially equipped lecture room for videotaping in this fall term. The videotaping failed once in time last week to display without an audio effect. It also failed again to overlap the two lectures into one piece or might be hacked or stolen, which removed, in no way, a half of class from two hours content. The failure involves an incomprehensible technical difficulties about the computer device and attendant facilities that lay professors could not handle. The paid staffs, who often are graduates of college, were available, but they hardly penetrated the core of technical issues. Their advice is meeker, and most profoundly, other principals in charge are very negative about the use of special room. They are fairly defensive and like to be loyal to the original purpose of that room as a matter of school policy. Actually, however, the policy seems flexible and the hard nature of my course has a good justification for videotaping at the aim of post-school studies for the students. This negative stance of college administrators and less will of theirs seem to create an atmosphere to influence the technical staffs. Their skills and knowledge also seem imperfect to perform their role and service. I got infuriated with the two times failure in sequence. I do not even like to speak of any rule consequetialiam or act consequentialism in this case. However, the ethics are only way to explain this displeasure. The school administrators and technical staffs never are immoral and I could not tell any specific point in violation of any code of conduct. They stay peacefully to be satisfied and look likely to keep with a good moral character. The only way to explain my anger would be from their inaction, as likely contientor incontient. They are never immoral, but merely neither virtuous nor proactive against the counter-pressure. They hang around half of hours for one hour class by reserving any definite advice about the use of special mike. They are never immoral, but we can hardly find any friendship, a useful equivalent with ethics in analogy. Ethics, then, would be an enhanced concept for the desired human or organizational condition (2013). Reference Laureate Education Inc. (2013). Ethics and Social Justice "Fundamental Concepts" with Amanda Baker (approximately 16 minutes). 9 Stanford Encyclopedia of Philosophy: The Definition of Morality. Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/morality-definition/. Stanford Encyclopedia of Philosophy: Aristotle's Ethics (parts 1-4). Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/aristotle-ethics/. http://plato.stanford.edu/entries/morality-definition/ http://plato.stanford.edu/entries/aristotle-ethics/ 10 III. A Comparative Understanding of Liberalism and Libertarianism The Main Profile of Two Thoughts Liberalism and Libertarianism are close concepts, but distinguished in the basis and its present effect on the community. A libertarianism begins with the self full- ownership and penetrate the kind of property or physics origin of metaphor through the discourse (Stanford Encyclopedia of Philosophy: Libertarianism, 2013). It provides the ways to understand a personal autonomy, and its relations with the community and governance. Its contemporary evolution would be less extensive and took the nature of countervailing theme against the paradigm of welfare state or egalitarian liberalism. It tends to seek some of strengthened or defensive logic concerning a lesser intervention, more enhanced conception of personal autonomy from the social justice, as well as an emphasis on distinction between the society and polity or government. Hence, the ideas of libertarian adherents may go into an anarchy or requires a stern justification about the intervention, any scheme of administration on justice or new community ideals. Its tradition, in due course, can be traced back to Lockean ideas and its contemporary leading theorist would be Nozick (2013; R. Nozick, 1977). A liberalism would begin to perceive one as an agent more than the libertarianism that it spans widely thorough the human nature and interaction within the polity or political community (Stanford Encyclopedia of Philosophy: Liberalism, 2013). This ideal generally is considered to play a foundational role in the evolution of western democracy through 18 and 19 th centuries in UK and US. Its origin should get more extended, but its significance as an ideal was framed in the moment as a new social idea in the 16-19 th century western community. It is the kind of rebellious understanding from the prevailing purview of those times from the feudal subjectivity and later a divinity of monarch. One or agent is not autonomous or self-willed to be liberal, and current form of freedom or liberty would only be attributed to the limited scope of people. This perception had broken at first with the struggle between the King, a representation of new nationalism in Europe and Pope, and resolved in the Westphalia peace regime. A next phase would be the contention between the wealthier class and ancien regime as represented by the feudal system and monarchy. In this phase, the contractarian theory offered the ground to liberalize the class of commercial merchants, industrialists, and local agrarians, and other class of bourgeois. It reshaped a dominant version of nobility, divinity and feudal ethics into a new paradigm and ways of understanding. Hobbes, Locke and Rousseau are considered as leading three originators of this ideal, who had, nonetheless, subtle differences in proposing their social contract in theory and basics (2013). From this social contract frame, a limited government could be enabled and the abuse of power may be checked or kept in balance in its structure and function. That means that the people turned to become qualified to enjoy their inalienable rights, such as rights to life and liberty as well as property right. The divinity of monarch was said of illusion to be replaced by a new hypothesis of social contract while Hobbes did not advance to this extent. The ideal of liberalism made a profound impact on the basic structure of democratic rule in the late of 18 th , notably on the constitutionalism in US and universalism of human rights in France. This ideal, philosophically enriched by the work of J.S. Mills, served as a dominant perspective to rule the conquered lands and countries by the British power in the Victorian age. 11 From the idea of J.S. Mills on liberty, we can learn much of human condition, the duty and responsibility of agent, ethics, and ways of interplay to implant or inculcate himself and neighbors (J.S. Mill, 2002). In his conception, therefore, the liberty is not restrictive to the negative concept from coercion or compulsion. Beyond this basic liberty, he evangelized many intrinsic in his philosophical deliberation to substantiate the views of liberty or liberalism to bridge toward the positive concept of liberty. For example, he saw that the context of individual to grow and learn is essential to ensure the liberalism. He also distinguished the doctrine of free trade from the principle of individual liberty, and taught that the justification of personal and economic liberty was distinct (2002). He diversified the true nature of one or agent, and enabled to explicate the unraveled dimension of humanity if just philosophically or as unsupported by the contemporary science on humanity or psychology. Mill's perfectionism and his conception about the two ways of pleasure, hedonic and higher ones has likely echoed in consonance with the modern views on the Maslow’s hierarchy of human needs. He is also available in contrast with the Marxism provided that Marx is purely mercantile and economic in viewing the society on its basics. Millian concept might be received as a false consciousness from the communist adherents in one way, and may bring a structural distaste for the scholars of colonial experience. In his words, we can read, “Despotism is a legitimate form of government in dealing with barbarians, provided the end be their improvement…” (Stanford Encyclopedia of Philosophy: Liberalism, 2013). This view yet would likely be disfavored by Koreans in the context of Japanese imperial rule or US in the context of British rule. I consider, however, his idea is pioneering to flourish a reasonable pluralism and also interesting as if he whispered the Victorian glory of larger opportunities and ample space to fill the civilization errand in the ruled lands. That comes, for example, by mentioning about developing individuality and cultivating capacities. He therefore saw the barbarians not be qualified to entertain a genuine nature of liberty, but could be improved by ways of contact and interaction, which would likely be a Darwinian understanding of our nature (J.S. Mill, 2002). Then the views from the group of distaste likely said that they become as equal to be civilized but in the limits of British hierarchy and convenience of imperialistic rule. I am not sure if Marx, who might be a close peer as a matter of time with Mill, had that point, but Marxist view may overstate the role and capacity of working class to reject the idea of evolutionism. This hypothetical bridge would not be incorrect if we institutionalized a tripartite convention among the labor, capital and government in Korea and Northern European states. One other attribute in these times would likely be the experimental journey of new democratic rule unlike the Victorian system of world governance. The governments in the new continent around the mid of 19 th century had been aching to settle their system of rule and contested points about the democratic virtue and desires. Notably, the civil war and women’s right to suffrage were lodged to contend and evolved. This means any vulnerabilities and weaknesses in terms of the public policy and administration around the times. As J.A. Hobson phrased, the elected officials now are true representatives of the community in competence, capacity and ethics than a mere defender of their wealth as formerly stigmatized (2013). The concept of social justice and ethics of bureaucrats began to maturate if we are in the D.G Richie’s, “genuinely the government of the people and by the people themselves” (2013). This growth of government against the market or wealthier class rule would perhaps notably break into the New Deals around 1930’s and the social welfare or justice concept tend to come into some of primacy for the public administrators. A subtlety can be raised between the views of John Rawls and the paradigm of welfare state, and that the 12 term, “egalitarian liberalism” may more properly investigate the current context of humanity, social justice and ethics of administrators. While the welfare thesis highly tilted on any economic discourse, the egalitarian liberalism is prone to see the people and their social justice in some depth of philosophical justification as in Mill’s case against the pure market theorists (Laureate Education Inc., 2013). Interestingly, a point developed into the classical idea of Plato and his disciples about the function and role of individual in the community and the kind enabling concept between the deprived nations and affluent ones. A substantive justice or positive liberty would surge in the threshold to practice the liberalism as a matter of polity. For example, Ely asserted a social justice and positive liberty for the working class which replicated the ideas of post- modern constitutionalism about an enabling concept of rights on the labor and social welfare benefits. A Summary on Two Thoughts Then the liberalism may be classified on several of its basics as (i) thoroughgoing methodological individualism (ii) individualistic postulate’ against all forms of ‘organicism’, (iii) expansion of an abstract conception of individual selves as pure choosers and ingratification of ideas on the cultural membership and other non-chosen attachments and commitments (iv) aims at development on a decent hierarchical society (v) horizon to explore the social cooperative structure and justice (2013). Interestingly, Mill adverted on the virtue of non-intervention on the non-liberal states which raises an ambiguities how this proposition could apply to non-British subjects or other powers at his time and contemporaries. For example, a previous illustration about Syria comes to be tested in his thesis. Also we can illustrate other ramifications of liberalism such as public reason liberalism and radical pacifism, which would adaptively propose to respond to the circumstances and demand of environment. For example, Republican liberalism could be epitomized in its new ways about the failure of free market structure globally, and economic in its vast aspect of proposition and arguments. Libertarianism, as above introduced, could be viewed in a protesting thesis against the imprudence of social justice or dominant ethics they consider thematically unproved or over- generalized. Hence, they question the prevailing ideas of contemporary society from a rule consequentialism and teleology or rule cotractarianism. The impression would likely be the context of Scooridge who churns on the legitimacy and justification of social justice or established course of governmental ethics. They may constantly raise a suspicion and demand any plausible ground to legitimate the actions and programs by the justice-promoting organizations. Nonetheless, they have a cause and rationale that the public administrators should not disregard. Two Thoughts and Ethics Ethics, in Aristotelian preaching, was viewed for phasing out of virtuous agent in impression and a paragon to reach the idealistic dimension of mean state (Stanford Encyclopedia of Philosophy: Aristotle's Ethics, 2013). Aristotle showed a contrast within three other characteristics, say, contient, incontinent, and evil. A good person chooses to act virtuously, and transcends the knowledgeable, yet inactive person without a public outreach 13 for justice. Kalon, a Greek word in English meaning “beautiful,” “noble,” or “fine”, would be an ideal that the kind of person pursues (2013). This character of agents or person perhaps would be a best lived life on knowledge and understanding as coupled with the second mode, a devotion to politics. For the public administrators or students on the course of journey, I suppose that the ideals of liberalism would be a central point to tackle with to contest the virtue of administration every constantly. In this nexus, the ethics can come into an interplay, and libertarianism also would be an approach of neighbors which advises to communicate for and construct the system into a meaning (Laureate Education Inc., 2013) Reference J.S. Mill (2002). The Basic Writings of John Stuart Mill: On Liberty, the Subjection of Women and Utilitarianism. New York, NY: Modern Library. Laureate Education Inc. (2013). Ethics and Social Justice "Fundamental Concepts" with Amanda Baker (approximately 16 minutes). R. Nozick (1977). Anarchy, State, and Utopia.Basic Books. Stanford Encyclopedia of Philosophy: Aristotle's Ethics (parts 1-4). Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/aristotle-ethics/. Stanford Encyclopedia of Philosophy: Liberalism. Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/morality-definition/. Stanford Encyclopedia of Philosophy: Libertarianism. Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/aristotle-ethics/. http://plato.stanford.edu/entries/aristotle-ethics/ http://plato.stanford.edu/entries/morality-definition/ http://plato.stanford.edu/entries/aristotle-ethics/ 14 IV. Ethics and Design Approach Conflict and Ethics The public administrators are responsible to address the issues and agenda, and may, in some cases, need to make a difficult decision ethically viewed as divergent in ways of dealings. Most notably, they may be required to decide or act in the tension concerning the conflict of authority, interest and role. How the two concepts are connected and interact among each other often matters in the circumstances where the issue, task, course of dealings, agenda, and their role performance come to impose a difficult avenue of ethical consideration beyond the routine course of making a decision. There can we identify the class of conflict which corresponds with the three elements, say, authority, personal interest, and work role (Cooper, T., 2012). A conflict of authority occurs when the ethical dilemma relates with the law, line hierarchy of organization or work structure, and other formal or informal work requirements in terms of control, cooperation or collaboration (2012). A conflict of interest often arises that the organizational course of performance, its goals or missions overlap the sphere of personal interest directly or indirectly, obviously or impliedly, as well as in the spectrum on purity and fidelity from the collective frame of organization. It does not necessarily require a loss or harm to the organization, and merely an improper or disloyal connection between the organization and interested administrator can suffice the conflict of interest test. The personal interest may not be the administrator’s himself, but encompasses that of his spouse or close siblings in general. A drafting of ethical code depends on the nature of organization and public policy as seen in the case of New York code on the professional ethics of bar members. In that enactment, the conflict of interest was narrowly tailored to have a limited ambit about the financial aspect when it defines an impermissible scope of violating the conflict of interest requirement. A conflict of role would be found more flexibly, and pertains to some of professional dimension on the desirabilities, efficiency of administrative performance, as well as the organizational or social utility of agents or administrators (2012). The concept is less rigid in comparison with the conflict of authority, but dynamic and creative in pursuit for a better performance, which, however, interplays to comport with the laws and line hierarchy. The concept of role, therefore, substantiates the formal or perfunctory nature of authority, and intrinsically relates with the administrative responsibility. While both of authority and role incur an issue of administrative responsibility, the former more directly brings the problem of objective responsibility. The latter would extend to the dimension of subjective responsibility while the basics of role also interplay with an objective responsibility. Ethical Reflections and Responsibility on the Design Approach The topic, in nature, entails a difficult dimension in the course of professional service as a public administrator, and often reshores into the ethical dilemma or the conundrum of how to find a fit to resolve it (Hicks, D., 2013). According to Cooper, the design approach would serve a convenience and his or her ways to address the job duties about an ethical issue faced during the course of performance (Cooper, T., 2012). The paradigm, then, needs to be incorporated into his or her daily practice to chart and monitor his performance and standard. The use of this ethical model brings a benefit. This would serve finding a legitimacy of his or her authority and role, and particularly useful when he was questioned about his exercise of 15 authority and role. This means that the design approach could be a useful tool to address any predicament from the claim on subject responsibility. He or she also would be smooth with an autonomous performance of learned behavior sequence, and remove an ad hoc trouble on each respective case (2012). In his view, there are two types of ethical decision model, say, descriptive and prescriptive (2012). The descriptive model shows the ethical decision as the world is while the prescriptive one introduces the ethical decision as the world we would like it to be. His ethical decision model is prescriptive and framed into stages and factors. The first would require our perception about the ethical problem posed as a challenge. Then the administrators begin to describe the problems and define the ethical issues in forms to be explored and finally anticipated to resolve. He or she explores a scope of alternatives to be chosen, and will be required to explore a projection of probable consequences and its analysis. In the next, he stepped into the phase of selecting an alternative, a best fit as confirmed through the process. Finally, he or she imagines the picture that would be realized by implementation of his or her decision, say, state of resolution (2012). The model would be an amalgam of device to enable a leverage of ethical analysis into the express design which would be a dynamic process, rational and principled, but also on human feelings and character (Laureate Education, Inc., 2008). The design approach could increase the attitudes of administrators, i.e., reexamination, respect for the principles, distinction between values and principles, and so on. It would also cultivate the public administrators to think in a principled fashion. The ethical dilemma in its most extent brings an agony leading that the ethical autonomy is reduced to zero, that character is eroded, and that integrity is undermined (Cooper, T., 2012). From this hardship, the design approach can shape some of stable process within the inner minds of administrator which facilitates the nature of ethical analysis, i.e., primordal, spontaneous, complex, logical, principled, and relatively comprehensive justification (2012). Ethical Dilemma and Conflict of Authority, Role and Interest Across three concepts, we may find a Korean illustration about the course of military coup in Dec., 12 th , 1979. The incident may be known to US citizens if Korea is one of key allies and its rising prestige as a world class of nation. General Chun, a Korean of mid fifties, had served as a chief of investigatory authority to probe an assassination and cruel killings of presidential aids in the attempt to terminate the Cheng-hee Park’s lengthy reign on a militaristic ground. Jae-kyu Kim, a chief of National Intelligence Service and conspiracy leader of the plot to assassinate, alleged his legitimacy of killings given the democratic ethos and popular quest to restore the democratic rule, as shown in the Bu-ma marches and confrontation charted around 1979. Mr. Kim was actually executed, and was rejected of his claim in the judicial process. General Chun, a chief of Military Intelligence Service, was appointed as a charge of investigation by Seung-wha Chung, General in Chief of Korean Army. General Chun is required to directly report to the command and order from General Chung as a matter of law and line authority. General Chun had been a key actor of informal fraternity group, what was called Hanahoei, which is powerful and potent under the shield of Park’s support. General Chung’s background was different, who is not a graduate of Korean Military Academy, but was educated in a general base of military training. Hanahoei is a firm club in the promise to share a same destiny, personal welfare, promotion opportunities and 16 career success, and of course, a loyalty to the Park’s administration. The two months from Oct. 1979 through December of that year apparently looked of peace and progressive transition toward the aspired democratic form of government. Three Kims, promising candidates for the next presidency enjoyed a public attention, and the nation gradually had maturated into a campaign mood and political flourishing. That appears certain in due course that Koreans would sooner witness a democratic government long aspired and in the moment of demise of militaristic regime. Chun’s role is obvious in the eyes of public to investigate Kim and his conspirators or accomplice, while General Chung would govern temporarily in responding to the national emergency (Laureate Education Inc., 20o8). A transition to the regular regime seemed ensured in 1980. Abruptly, however, an unauthorized fire battle awakened Koreans in Dec. 12 th , 1979, which broke out in the course of arresting activities of General Chung by General Chun. He later obtained an approval of that arrest by the acting head of state, Kyu-ha Choi, but in the demonstration of his informal power with his fraternity members. Some of implicit coercion can be noted in the evolution of one night revolutionary course of action. Chun’s cause and rationale, later seriously questioned and debated in the courtroom and by many political analysts, were alleged to lie in the investigatory needs about a suspicious behavior of General Chung, at the night of assassination. General Chung was called to report by Kim, and attended a dinner in the near guest room of Blue House close to the place of assassination. Chun’s version is that his presence had been necessary to support the coup of Kim and might imply a conspiracy connection with Kim. He, therefore, had no way to attempt an arrest of his direct supervisor without the approval of president, which had been required as a matter of law (20o8). A prior approval might fail the plan to arrest, but may bring a counteraction from the General in Chief. This scenario would be worse and Chun’s claim was that a possible culprit to harm the national head might continue by sacrificing him. In the period, there was an alleged plan to transfer General Chun and his informal fraternity group to some of marginalized position. As said, they had been strongly associated to serve their spirit and prosperity in their military career. This atmosphere to counter the Hanahoeiprobably threatened their personal expectations that they would turn to react in defending their private interest and in the chance to forge their suspicion about a General Chung’s quandary on the said night (20o8). What motives actually would be more imposing is still dubious, but might well be combined to make the decision to arrest. That night a number of innocent lives were sacrificed, and the divisions or special combat unit were mobilized at the military command order appropriated to serve their unauthorized course of military operation in arresting General Chung. At the time of arrest on Dec, 12, 1979, he spent his time off duty in his public house located at Hannam-dong guarded by the armed military police. This guard line was broken by the attack of his appropriated unit, and other forces were drawn to occupy the command center of Korean Army. This story reveals the context of critical dilemma in terms of ethics and code of conduct on the public administrators. General Chun was responsible to investigate, gather the evidence, and transfer his findings to the prosecution authority of Korean Army. His competence and authority was prescribed expressly by the law and work flows in system and practice. He would also need to report to his supervisor, General Chung and eventually to the acting president. He certainly faced an ethical dilemma how to decide and what course of action he should have to undertake. His deliberation perhaps would go into any deeper analysis the administrators normally would not process. The design approach and ethical decision model might seriously work around the perception of ethical problems, defining an ethical issue, exploring the scope of alternatives, and finally a selection of alternative and 17 state of resolution (Cooper., T., 2012). His ambition as a loyal and faithful cardinal of Korean Army, and human feelings from a Park’s benevolence might move him ethically as a factor. A retreat from any radical action would undermine his and his peer’s military career and personal welfare. His personal conviction to restore the justice and unearth the truths of that night might come highly to risk a military confrontation between the same armies, and eventually his and his peers’ lives (Hicks, D., 2013). His status, however, stood in the conflict of authority which transgressed the law and expected course of action (Cooper, T., 2012). A formality of line authority was clearly violated, but the role analysis may, in some degree, come to favor his courage and blatant initiative to arrest. A conscience, loyalty, passion, and affinity may support his decision. One source confirmed that he called President Park as a father in the informal gathering, and both had been ethically tied. In any case, a US Ambassador as well as the commander of the Eighth Division for Korean Ambit at that time, got infuriated about his usurpation of authority. The Korean government also finally condemned his decision and course of actions as a military coup in the criminal jurisprudence. The context of subjective responsibility was, in heat and passion, contended and debated seriously in the courtroom around 1994. An argument to legitimatize their personal ground to defend their ways of making a decision and course of action was eventually rejected by the court. General Chun and his peer General Noh served as a president in 1980’s and through early of 1990’s, but their glory just stopped there. As we learn, the final destination within this nature of public commission may go more proper if to respect the constitution and laws since any ultimate findings of a fit might sway. The conflict of interest also comes into a play if he or his peers embraced some of personal pursuit for the career success and welfare. Reference Cooper, T. (2012). The Responsible Administrator. San Francisco, CA: John Wiley & Sons. Hicks, D. (2013). Dignity: Its Essential Role in Resolving Conflict, New Haven, CT: Yale University Press. Laureate Education, Inc. (2008). Ethics and social justice, “Ethical Decision-Making” with Amanda Baker (approximately 12 minutes). 18 V. The Ethical Dilemma and Ethical Decision Making Model Introduction One of present controversy in Korea reveals that a chief of national prosecution offices (KPO) had resigned in response to his alleged wedlock child. He has been one of respected senior prosecutor trusted by a group of young manpower in KPO. Mr. Chae, now a popularity from the flak of majority party, Saenuri, and on some of split views from the public opinion, should wait for a completion of internal process on investigation and audit. His resignation was remitted and the Blue House endorsed a supervisory command delivered by the head of Ministry of Justice (KMOJ), Mr. Hwang. Dong-wook Chae, a week ago, announced his resignation in the press and public media right after the minister Hwang, formally a higher authority in ranks and files, decided to process an internal investigation about the alleged Chae’s ethical failure. The story actually has stirred over the month involving one madam, called Lim, who runs a prestigious salon for the socialization and fraternity among the high technocrats and wealthier class of Korea. KPO had been reputed as one of prime justice-promoting organizations since the dismantlement of militaristic nature of government around the early of 1990. They had once been rated by the media as a top public institution attracting the public credibility and trusteeship. They had deeply been engaged to eliminate the evils and harms within the power groups and wealthier class in Korea. One young prosecutor mumbled, “I have been proud of my organization because the injustice and public ailment therefrom was remedied on my own hand…This incident actually frustrated the organizational members.” Other man corroborated with his comment, “KPO may not be perfect if the political power intervenes. It, however, has been on public faith that it, at no exaggeration, worked effectively to correct the ‘past’ political power.” Situation, Factors, and Administrative Responsibility The context actually is complicated to encompass a scope of elements expressly and impliedly working (Laureate Education, Inc., 2008). The plain aspect of incident is an ethical misdemeanor allegedly perpetrated by the Chief of Prosecution Office (CPO), perhaps decades of improper relationship with the said madam and wedlock boy child. The practice of embroiled persons, in my personal experience, are not unusual to hold the kind of pattern behaviors that the prosecution officers have a tie and social coupling with a local pub or salon as the base for their informal contact and off time pleasure. If in worse, some of corruptive shade may exist ranging from the unpaid events of extravagant feast or gatherings and through a sexual brokerage prearranged by the interested private attorney, local potent or businessmen. Their interest may be unlawfully or unethically promoted against the proper administration of justice and professional rule of conduct required of public prosecutors. In the worst, some of prosecution officers may have a connection with the local gangsters to gather information, to subsidize a financial support, or to be engaged in more intimacy to a specific locale or potentials of crime network. Other factors in this kind of ethical issue are in need of consideration which is important to understand Mr. Chae’s objective and subjective responsibilities as well as the context of Cooper’s paradigm (Cooper, T., 2012). First, Chae was not the only officer to resign during his statutory term of two years, but twelfth in roll from a total of 18 since 1988. The statutory term was introduced to ensure an independence of KPO, a quasi-judicial institution, against the abuse or dereliction from the political power (Maccallum, G.C., 1993). Hence, the president or ministry of justice should 19 be restricted in dismissing a CPO at their will, but only statutory causes could justify it, which would be typical, of course and for example, a competence and health required to carry their duty, a level of crimes as provided by the law, and other basics. The bureaucratic line of authority was enshrined as a matter of public administration, but their intervention into any sensitive criminal cases of political nature was intended to be statutorily safeguarded by that very entitlement of mandatory terms. That was welcomed as one of wise institution by public in 1988, which was also grounded on the public trust about the separation of powers principle. Hence, Chae, like other predecessors, thought himself as a bulwark to defend an organizational identity or integrity and would like to maintain his good impression as a leader of KPO and as a courageous or impartial public prosecutor. Second, the presidential election, last year, was tainted in the first half year of Lady President Park from the onslaughter of unlawful meddling into the election process. She was a candidate from Saenuri, a ruling party, and the major opposition party, Democrats, seriously contended that the National Intelligence Service (NIS) intervened unlawfully and manipulated impermissibly the public opinion through their grapevines. Of course, it is not only an ethical requirement, but also a legal issue that the NIS and their officers should remain neutral and independent from the public election (Laureate Education, Inc., 2008). The Democrats, still rallying in the public street by installing a camp for the months stay of Han-gil Kim, a head of that party, had initiated conducting a congressional hearing about some of NIS’ issues. This initiative was actively pursued in the agreement of both parties, but had effected practically nothing with some of face-hidden witnesses, and insipidity of inaction and non-cooperation. Their filibuster or cause to passivism might be good on some legal justification, say, the national security or other public reason as specified in the statute, but the opposition party would be discontented with their defensive or non-engagement attitude. In this chain of power struggle, the prosecution offices decided to indict Se-hoon Won, a head of NIS, invoking its legal ground from a sensitive criminal statute, i.e., violation of the public election laws. This implies, as a matter of tone and attitude, that the prosecution office will go their way as insulated from a political discretion, and that they would be faithful to their job responsibility. Chae, thus, undoubtedly suffered from an ethical dilemma across many competing values and moralities (Cooper, T., 2012). As the issue is highly cardinal for the national integration as a matter of politics, he may waive a strict enforcement of law and apply some of acumen to avoid a couterpressure from its direct application of law. As the issue involves a petit offense as a matter of law, this option would surge very strongly in the course of ethical deliberation on his subject responsibility. The challenge to the legitimacy of president would bring a serious consequence while the application of laws matter at lesser extent about some amount of fines or its equivalent. He may hover around other alternatives, which include an invocation of other available criminal provisions, or some of inter-branch measure on the collaboration and cooperation. For example, the education and learning session about non- engagement principle in political matters and bureaucratic ethics could be used to circumscribe an usurpation of NIS and Blue House political elites (Hicks, D., 2013). He or other concerned group to cherish the rule of law concept within KPO may initiate a legislative workforce to restructure the inter- branch control and more effective system to operate ethically and lawfully as well as for a sheer preserve of bureaucracy independent from any swaying political influence. A scope of alternatives come to play, and could offer the ground of justification as a CPO in terms of subjective responsibility. This inner process is necessary and might later be called upon to respond to the congressional hearing or investigative context of process (Cooper, T., 2012). On the other hand, there are also a range 20 of factors involved in terms of objective responsibility and ethics as a CPO. Is the law applied correctly and could be sustained by the court? This is purely a technical issue of law, and centers at the heart of this organization’s cause to exist. What is the legislator’s intent to secure his term of two years in a statutory way? Are we entirely barred from any political discretion to keep neutral between the politically contending parties. Then the line of authority from the president, justice minister and through a CPO in ranks requires what extent of concession or compromise? How do the public laws on governmental employees, organizing and enabling statute of administration, the Act on KPO, and others interplay to guide his decision and course of conduct to handle this difficult ethical issue, i.e., more discretion v. strict enforcement of law. Third, the factors would become intertwined that may produce an amalgam of professional administrators which a lay person may not be easy, but leveled to be likely a neutral mechanic through the course of his decision and leadership action (2012). He rose to the top of KPO, but was reserved from the last administration led by President, Lee, M.B. He was not chosen by the Lady President, but his nomination was endorsed with the support and acclaim about his trustworthy career profile. He had been publicly introduced as a respected figure within the organization that the young generation of prosecutors admires as a paragon of their professionalism. The event has developed in a pattern for one sense, and unexpectedly in other sense. While a backdrop is not certain, but on the basis of public conjecture, a political group at the center and NIS may leak his private matters on the public media. Now he has turned to be a kind of scapegoat about his wedlock child and the quality of controversy involves an ethically faltering dimension from the normal compassion and traditional morality of Koreans (Laureate Education, Inc., 2008). He is a promising public employee who has been responsible to administer the national justice. The profession is viewed as a sanctity and generally of high level of ethics and moral standard despite being not compatible with that of clergy or priest. He is also considered mightier in power with other citizens that his impious and nasty behavior could well undermine his public impression and imagery of organization, say, KPO. He was unethical and the point exacerbated about some of influence and corruption from his mightier status. As a matter of course in the business of public media, reporters and editors are exalted to divulge this allegation based on the rumor in some cases and independent research on other cases. It suffices definitely to provoke the curiosity of public and the course seems certain to condemn the Chae’s case. He was pushed back to the corner and may be on groggy to become naught with nothing left (Hicks, D., 2013). He may highly wish to keep his good image on career and work profile, and likely detests the possibility to remain a gutless brass for his organization. The specters of Korea may approach to subject him to the kind of ordeal how you confront this dilemma. Inside his mind and on the standard of ethical code, his promenade in agony and exploration through the jumble of complicacies span extensively on the point of alternatives and consequences or prospects from his decision and course of conduct as in Cooper’s generalization (Cooper, T., 2012). The problem is serious in nature if to question and deprave fundamentally the basis of his morality and ethics as a public administrator. His alternatives, henceforth, may shrink to the simple option of whether or not he would resign and pomp his courage or a neutral and impartial carriage of job responsibility in his personal honor. On this front, he would not be best, however, if he simply decides to resign. That is principally because he has already responded by discrediting an accusation of wedlock child. Other important reason is that he would do better to maintain his current status and defend the statutory term. His instant reaction to resign would grow a more suspicion and distrust of public about the KPO. His 21 many predecessors, had to quit during his term, and this may lead him to sustain his position as the modality of organizational heads. He actually dropped this option, and began to defend his case through a media coverage. He later vowed to file the civil action on the claims of invasion of privacy or defamation. The press media counteracted to pressure by mentioning a gene test and other medical ways to prove his purity. In this progress, a moment of critical measure was rendered by his direct higher authority, justice minister Hwang that the department of justice will respond by processing the internal audit and investigation on the integrity and ethics of employees. His measure is grounded on the pertinent public laws about a supervision and command, but historically undocumented to initiate since the quasi-judicial role, i.e., criminal investigation and prosecution, has to be institutionally separated from the policy reason of KPO independence. KPO is generally responsible for the KMOJ, but a final say on the outcome of specific criminal case is institutionally a prerogative of KPO not to be meddled by the minister. His measure, in any way, was legitimate as a supervisory action, but might be acknowledged in other perception, which would be from young prosecutors about its impact as a pressure. They counteracted to investigate the minister Hwang, but the president and minister repeatedly confirmed that the matter is just the class of public employee’s ethics and sanctity required by the law (2012). Their intention is never to tame or control the independent authority of KPO, which should be on the conscience and law. This phase to any final process eventually led Chae to announce his resignation, but the president refused to accept it until the internal process of audit and investigation completed. The Ethical Decision Making Model and Chae’s Case This case shows a typical pattern of ethical dilemma involving a proper function among the intergovernmental organizations, independence of justice administration, and political influence. The Cooper’s ethical decision- making model stages in steps and feedback, which enables an extended scope of review and assessment for the respective ethical issue (Cooper, T., 2012). The idea involves a design approach, and the administrators, as C. Whitbeck proposed, can figure out what to do to deal with the ethical dilemma, as distinct from a normal attitude of merely making a judgment (2012). In application of the Cooper’s framework, we may have some of summaries on his respective element. Figure. Ethical Decision Making Model (Coopers) 22 Table. Application to the Chae’s Dilemma 1. 2. Perception of an Ethical Problem Perception of an Ethical Problem Defining the Ethical Issue Describing the Situation 23 3. 4. (a) rich odor of ethical corruption and infidelity on the basic social morality (improper relationship with a madam and wedlock child (b) political instability from the former administration, Noh and congressional hearing on the NIS, legitimacy controversy about the last presidential election and the NIS’s unethical support and alleged plot to intervene (c) criminal case and KPO’s unbent decision (d) suspicious leakage of private information and public controversy (e) announcement to respond with the civil action, KMOJ’s reaction to process the internal audit and investigation, resignation and pending context to continue by not accepting it (f) typical public issue of Korean judiciary and quasi-judiciary for its independence and proper administration of justice, De Ja Vue of many Chae’s predecessors to quit intermittently. 5. 6. Defining the Ethical Issue 7. 8. (a) Is it ethical and the ways of responsible administrator that Chae decided to apply the election laws in the indictment of NIS head, Won? How would it be working if he applied other available provision for the perhaps bigger cause of political stability? (b) Did he act properly and ethically that he stayed to maintain his office once the allegation stirred the public and raised a public distrust? (c) Is it proper and ethical to instantly respond with the public announcement of KMOJ to process the internal audit and investigation? Identifying Alternatives & Projecting Probable Consequences On the first issue, we may consider several alternatives-indicting as the law dictates, applying an acumen and political sense by avoiding an application of election laws. On the second issue, (a) it may be better to resign instantly if the suspicion has a strong ground and for its severity in the breach of ethical code; (b) he did well to stay since it is a kind of plot and must be subjugated by the public consensus about the traditional ways of leakage and public menace; (c) he did well to stay since his predecessors often happened to resign consecutively, which undermined the legislative purpose of statutory term and seriously tainted a public impression of KPO (Maccallum, G.C., 1993); (d) he did well to stay since his career and profile are high and merit to preserve from his followers. On the third issue, (a) he did well to announce his resignation instantly because KPO has to be insulated from the authority of KMOJ; (b) he did well to announce his resignation instantly because weeks of media coverage are enough to forge an awareness of the nature of controversy and KMOJ’s involvement made it firm about the public sensibility of political influence; (c) he did well to resign instantly since the public damage and debase had grossly aggravated from weeks of media coverage on this depraved unethical incident; (d) he should have continued on his job responsibility since he should respect the measure of higher authority and until his measure was completed; (e) he should have continued on his job responsibility since he initially avowed he did not have an improper relationship and the child is not his wedlock baby. Selecting an Alternative & A State of Resolution I consider his decision and course of action about the controversy and ethical dilemma would get better off provided if he instructed the public prosecutor in charge to act on the principles and law, but to defer a criminal prosecution on the statutory basis and also on the exculpatory clause because Won had been one of top bureaucrats, and contributed 24 much to the national interest, and because the offense was committed not by direct engagement in the alleged crime, but merely in the context of improper or lagged supervision (1993). In this line of thought, he also may consider a political instability if continued on the election laws. The conduct to counter a grapevine nature of disclosure and stay on his office seem proper given the context had been chronicled in the Korean society. This option could also be supported if it is fairly probable for the NIS or political core to intervene. If he plainly gets off his sacred job duty by resignation, it means that Koreans have no final resort to ensure their national justice and KPO’s cause to exist was highly damaged. He should have stayed even if KMOJ announced the process about an internal control. His instant reaction to announce a resignation evoked the public feel about his credibility and trust on his previous statement of innocence. He may see it cardinal or as a first priority to bar any exterior pressure or influence of KMOJ against KPO, but it is considered not to contradict the statutory mandate provided that KMOJ took a process to respond with the public turmoil arising from this surprising issue (1993). An organizational supervision about the integrity and ethics of public employees may be seen in a different light from the preservation of independent authority concerning the quasi-judicial function. Then the final outcome could be resolved by a gene test or findings of judiciary. The problem would arise from any continued media coverage, which cost a misleading and unnecessary consumption of public energy and time as a gossip or extended damage to the KPO’s reputation and honor of public prosecutors. Ways to eliminate this problem might be strived, for example, a faithful inducement to limit its coverage on public reason or others, and it could effect although not completely settled. That would be a proper expense to yield the best outcome in this serious circumstance. Then we have some improvements from the traditionally undesirable practices, a quandary of intermittent discontinuance of the KPO’s head, an unfounded allegation against the public figure, cult or myth on the KPO’s role, and public distrust or disinterest from any of manipulative or defrauded event. The alternative may restore an institutional interplay on the basis of law and statutes, public trust, and could enhance the right to know and serve in ways more than others. Reference Cooper, T. (2012). The Responsible Administrator. San Francisco, CA: John Wiley & Sons. Hicks, D. (2013). Dignity: Its Essential Role in Resolving Conflict, New Haven, CT: Yale University Press. Laureate Education, Inc. (2008). Ethics and social justice, “Ethical Decision-Making” with Amanda Baker (approximately 12 minutes). Maccallum, G.C. (1993). Legislative Intent/Essays Madison. WI: University of Wisconsin Press. 25 V. Differences and Similarities among the Human Rights Civil or Political Rights in the Comparative Viewpoint In a major classification, we have two groups of human rights which include civil or political rights and social rights. The civil or political rights are classic and an antedated group of rights which often are considered foundational through the democratic governance and modern constitutionalism. The attributes of these rights, among others, are (i) their competing virtue against a monarchy or dictatorship, (ii) principally driven to limit the governmental power (iii) negative rights from the abuse of governmental power (iv) to serve the new wealthier class of society (v) to champion the human dignity, autonomy and democratic virtues. Hence, the typology of this first generation of human rights actually has led the world political history to transform the feudal mode of rule to the modern form of Republicanism and democracy. The scope of rights are typical as we often encounter through the modern constitutions and international norms, which span over a writ system against the personhood, freedom of expression, and free exercise of religion, freedom to travel, economic freedom including the sanctity of property right and freedom of contract, equal protection of laws, right to privacy, and others (Stanford Encyclopedia of Philosophy: Human Rights, 2013). These rights are typically placed in the bill of rights, notably in the State of Virginia and US constitution. A principled spirit enshrined in this set of rights are eminently pronounced in the preamble of US constitution or other classic declaration with such beautiful words, like inalienable, inviolable, god-bestowed, and etc. They projected the concept of classic liberty interest and often are considered to include the strands of natural rights. The rights in this group actually worked as a revolutionary thesis that should be achieved, and had been incorporated into the liberal constitutionalism. They are constitutional rights which deserve a special status as a matter of law. Plainly, they could not be repealed or negated by a mere majority of Congress or state legislature. A weightier process of constitutional amendment only could modify or abolish the ideas and requirements. In an in- depth theory, some of modern constitutional scholars argue that the fundamental liberty interest and human dignity could not be derogated even by the constitutional amendment (Hicks, D., 2013). They are the ground in most probabilities to conduct the constitutional review against a suspicious act or statute. Therefore, it has a root nexus with the idea of higher law or hierarchy tenet across a type of norms in order, constitution, statute or treaty, and executive orders. The federal system complicated this structure from the federal laws down through the state laws and in ranks across a type of norms. Practically, the judiciary had performed much role to protect the civil or political rights, nonetheless, it is a prevailing view across the jurisdictions that the rights in this kind are a guideline for all three branches of government to act and comply with. They could only entertain their power and authority under the sanctity of these human rights (2013). The concept, in this stand point of view, would relate with the separation of powers principle and tenet of limited government. The rights are enforceable as a technical matter of law concretely in the courtroom while the social rights are merely declarative or the kind of policy package the nation has to endeavor on programs or as a vision (Stanford Encyclopedia of Philosophy: Human Rights, 2013). The rights are not goal-like one nor any moral standard, but can well be framed as a cause of action in a specific litigation. We often experience news stories which arise from the 26 human rights controversy. For example, the accused in the criminal proceedings may argue on a validity of death penalty statute on the ground of Eighth Amendment. White male students may argue on a violation of admission policy practiced in the public university provided if the policy infringes with his constitutional right of equal protection of laws by an unreasonable and affirmative treatment for minority groups. They share similarities that they are rights of public law. This means that the holders of these rights could claim against the state or federal government, and in theory or principle, could not intervene into the interpersonal affairs. This attribute may be revised in a social perception as we see in the state action theory. For the civil or political rights, we now consider that potential violators should not be confined to the government or public entity, but can, in a limited ambit and under the legal coherence in scheme, expand to some of powerful private enterprises or other organizations. For example, a discriminatory policy in the large shopping malls may impact on the society in the similar extent of influence. Then the shopping malls may properly be viewed, in the purpose of constitutional application, as something like the state in their function or activities. This constructive logic, then, enables that the human rights can be applied to the private entities. Of course, the social rights would be less friendly with the concept of application extension as a matter of nature. Social Rights in the Comparative Viewpoint Other group of human rights would be called social rights, which possess the nature and quality as distinct from the first generation of civil or political rights. The paradigm would have a different basis where each concept respectively corresponds with the liberal staticism and social welfarism. The social rights would differ in notion and attributes, which are (i) positive rights to claim an intervention and social programming of government (ii) cherishing a more focus on the social justice than a liberty interest, (iii) of collective and social nature for the common prosperity (iv) principally driven to expand the governmental roles (v) to serve a socially vulnerable class such as the working class, consumers, and post-modern context of individual realities. The class of rights would spread from the right to labor, humanly labor standard, right to the collective action, right to the basic education, right to the pleasant environment or decent housing, etc. In view of its practical operation, one illustration would serve as charted from the news paper stories. An issue of the child or prison labor would rise to the global attention. It is concerned of the labor standard, and hence entails a social right controversy. It also comes into play as one of international constitutionalism while the underdeveloped countries often perpetrate the kind of inhumane violation. As T. Talbott stated, however, we may see the issue likely as some of structuralist perspective and turn it within a possibly distinct context of compassion, culture, economic capacity of nation, and etc (2013). Therefore, an argument would be unwise if to compel a universal standard of labor as enforced by the developed countries. The problem also relates with the international trade issue which involves the WTO and ILO. The social rights have emerged to restore from a fundamental injustice and gross disparity which a laisez faire system of capitalist economy had brought in the 20 th century. Therefore, we often call them as a second generation of human rights which is in contrast with an 18-19 th prevalence on the civil or political rights. The idea of social rights was officially recognized in the adoption of 1949 Bonn constitution, and many new born states after two world wars have imported that way of dealings in shaping their national framework. It later developed in 27 the context of international constitutionalism in the leadership and initiative of United Nations. So we have two significant achievements to encompass both sphere of human rights, what are known the Universal Declaration of Human Rights (United Nations, 1948b) and International Convention on Economic, Cultural and Social Rights (United Nations, 1966). A constitutional status of social rights would differ in US, so that they had not been entitled to the place of written constitution and pursued in the leverage of US Congress and Executive (Maccallum, G.C., 1993). Notably, new deal programs ambitiously elaborated to rescue the national economy and promote social rights were framed within the series of federal statute. Some critiques would also raise a suspicion about its status as a right since they could not be claimed in the courtroom. Other reason to question its status lies in the tremendous expense and financial burden that make them at least be programmatic or package of idealistic state vision. A counter argument would point the similarities of both groups on this point as we see a positive aspect of state engagement in instituting a criminal justice system, costly public measure to ensure a liberty interest, and so. A Summary of Comparison From a foregoing brief on two groups of rights, we can illuminate a summary in view of the similarities and differences. First, it is similar that they concern human rights the standard of which centralizes on the concept of human dignity. Therefore, they are dynamic and evolutionary to respond with various factors, to say few, a political concept of society, circumstances and intellectual leverage of society (Donnelly, J., 2013). Therefore, the human rights student needs to see its attribute of dynamism and static aspect across the global jurisdictions. As a representative example in this concern, it is noteworthy that the constitution explicitly provides a concept of “unenumerated” rights. The rights set forth in the constitution are just illustrative that the policy makers can exercise their wisdom to define each specific human right. The right to privacy has had no language in the constitutional text, but a product of judicial wisdom. The right to die, right to know, and many others had been shaped and endorsed on this ground by the pertinent authority. Second, both enjoy a constitutional status except for few cases that could not be tarnished from the normal political power. In reverse, the governmental power is required to respect the spirit and command arising from the human rights purpose. A universal and regional covenant also confirms its status as fundamental and essential although the enforcement context would come meeker unlike the national dealings. Third, the idea of human rights presupposes a political community, and generally corresponds with then prevailing political virtue. Our dualism of human rights classification corroborates with this assumption. A liberal capitalism and social welfarism had driven to realize the two groups of human rights. Fourth, as a matter of definition and practical operation of those rights, there could we note a plethora of differences as described above. Reference http://www.un.org/rights/50/decla.htm http://www.amazon.com/Jack-Donnelly/e/B001HD40K0/ref=ntt_athr_dp_pel_1 28 Donnelly, J. (2013). Universal Human Rights in Theory and Practice. Ithaca, NY: Cornell University Press. Hicks, D. (2013).Dignity: Its Essential Role in Resolving Conflict. New Haven, CT: Yale University Press. Hunt, L. (2008). Inventing Human Rights: A History. New York/London: W.W. Norton & Company. Maccallum, G.C. (1993). Legislative Intent/Essays. Madison, WI: University of Wisconsin Press. Stanford Encyclopedia of Philosophy: Human Rights. Retrieved Sep. 20, 2013 from http://plato.stanford.edu/entries/rights-human/. http://www.amazon.com/Jack-Donnelly/e/B001HD40K0/ref=ntt_athr_dp_pel_1 http://plato.stanford.edu/entries/rights-human/ 29 VI. The Attributes and Quality of Human Right Human Rights in the Preview What are human rights? How do we conceive them? We often hear of human rights and their social consequence in various aspect and levels, but we may become less definite what the words precisely denote. Someone may say the human rights are the kind of list in the bill of rights pronounced in the Constitution. Others may illustrate a political control or suppression against the free speech or press in China or North Korea. They, however, often have lacked an awareness if the African states’ children are starved and deprived of some of minimal standard to human livings. They also would become less attended that the middle Asian states have a unique culture to abridge the equal right of different sexes for the very reason that they have a religious justification for a different treatment. In the yardstick of western human rights group, their standard or practices would be inconceivable. In this impasse, a legal pluralism would probably be only way to understand their social dynamism. Therefore, the concept of human rights would have no clear cut to define in the aim of universal comprehension, but would be circumstantial and depends on the purpose of users. This leads to six or more families which are considered to describe the concept in most of influence through the history or political diversities (Hunt, L., 2008; Stanford Encyclopedia of Philosophy: Human Rights, 2013). Asked to give a summary form of definition, the human right is the scope of desired status of humans or some groups to be protected legally or by ways of the high extent of social force which often is deemed fundamental and essential to get along in any of human dignity. As they are fundamental and essential, they are high-priority norms as M. Cranston stated (2013). In this definition, we can derive attributes to entitle the concept as something of human rights. A Right: Human Rights as Static First, it is the right, not any of moral command or religious adherence to worship, which is viewed fundamental and essential (2013). Hence, the concept is presumed that the entitlement of human rights enable to claim the holders to pursue a legal protection, and through the vehicle of special institution. The ways to ensure them as a right may vary to cover a legislative enactment, judicial decision, or custom, but eventually leading to being part of the actual human moralities (Maccallum, G.C. , 1993). The statutory rights, in this ambit, are not human rights since they are neither fundamental nor essential. The right to tort damages, claims in many types of civil action, or administrative relief of industries against the foreign dumping practices would not be covered on this ground in view of the human rights concept. The human rights, therefore, often involve the kind of sensibilities found in the words, like sublime, idealistic, inviolable, or inalienable as we recourse the vintage of classic notion. The preamble of US constitution, the article 10 th of Korean constitution, Declaration of Universal Rights in 18 th France, and many new born constitutions in the 20 th century confirmed this approach utilizing the dealings as the heart of national administration. Since it is the right as a conceptual dealing, we need to investigate how they are realized in any of specific ways to enforce. Now most of nations have instituted the constitutional proceedings to review a violation of human rights by way of statutory provision like in Korea and Germany and by the case law as in US. In the United States, Marbury v. Madison pioneered to legitimate a constitutional review of the federal or state laws under the “case or controversy” requirement. 30 It is the right to protect an individual, but the group may be triggered as in the human rights consideration. For example, females would come into play concerning the domestic violence, reproductive choice, and trafficking of women and girls for sex work, assistance and care during pregnancy and childbearing, custody issues in the case of children, and the loss of historic territories by indigenous peoples (Stanford Encyclopedia of Philosophy: Human Rights, 2013). Emergence as a Protesting Concept The constitutions as a matter of concern often rise in the context of national politics. The classic idea enshrined in the human rights is quite protesting in nature against the power of monarchy or from the fear of mob dictatorship. The constitutional drafters of US notably went that way that they saw the institution of human rights herald their first priority. It is rebellious idea and virtue to question the dominant governmental power. Therefore, the human rights concept is crucially intertwined with the assumption of higher law, national constitutionalism, political democracy and presupposes some of political community. Then it may be connoted in the purview of justified political morality and to identify a preexisting moral consensus. The concept of international constitutionalism had surfaced at the moment of UN inauguration and bitter reflection of the past two world wars. In our characteristics as a right, the international constitutionalism would not be tight unlike the domestic context of constitutional review, but we can witness notable achievements about civil or political rights and economic, cultural and social rights (2013). The regional organizations, Africa, Europe, and South America, also have been proactive in this area of concern (2013).Their extent of engagement would not be ensured by the judicial enforcement or concrete decree, but they are empowered to monitor, propose, and recommend. One cause for the action of UN security council, which would be a unique organ to enforce the mission of UN by a compulsory measure, arises from the violation of human rights. In this point of view, the international constitutionalism is not merely a paper tiger but could be supported by sanction or other forcible means. Human rights, as said, emerged as the ethos of protest against the abuse of governmental power. They had been, in the history and tradition, achieved in a revolutionary way and conceded in complicity with the higher law concept as advocated by the ancient common law lawyers, Sir. Coke and Blackstone (Hunt, L., 2008). Two notable incidents are the French and American revolution against then monarchy and exploitation. A British progress undertook a modest nature of evolution centering at the parliamentary system. A comparative view also shows this distinction that the Great Britain still has no written constitution besides the human right statutes while France respected the universal declaration of human rights as their essence of constitution. Other critical event as a protestant ethos of human rights perhaps would be the foundation of new world regime by inaugurating UN. An intolerable abuse of human rights in the two world wars and depraving cruelty, inhumane debase of human dignity drove to envisage some of international constitutionalism (Hicks, D., 2013). UN made several steps to realize that errand as mentioned above in terms of two classes of human rights respectively in 1948 and 1966. Therefore, the emergence of human rights often involves a shame status of politics and basic human dignity. They could be viewed in aspects not to be transhistorical, but minimal, or at least modest standards as Henry Shue pointed out (Stanford Encyclopedia of Philosophy: Human Rights, 2013). They usually do not include a splendor of policy package, but could well tilt on the metaphor, for example, “how this can be tolerated as in the case of recent Syria?” 31 Static, but Dynamic into an Extension of Application and Scope Since it conceptually differs from the moral or religious command, the nature of right deserves more points of review about its legal status. The human rights are a public law concept which deals with the state and an individual. How to circumscribe the scope of individuals in terms of the entitlements or privileges also comes as a matter of constitutional interpretation. Is it to denote “people” as in the case of 18 th French declaration or “US citizen” encoded in many provisions of US Constitution? Are foreigners a beneficiary of constitutional shield in the issue of equal protection of laws? Korean constitutional court takes a view in general purview that the right to public office or election is limited to the Korean citizens. That is not the case when they face with an infringement of foreigners’ privacy right. The concept, then, is deemed a pillar to support the rule of law ideals against the abuse of state power. If the US Constitution has the nature of dual sovereignty between the federal and state governments, who is the addressee of constitutional dictate to protect the human rights also arises as a constitutional issue. The first ten illustration of bill of rights triggered the federal government, however, it could not reach the ambit of state sphere. This lacking, as we know, contributes to the contentious split of nation in the mid of 19 th century, and caused the civil war. The thirteenth and fourteenth amendments, and others were designed to cure this flaw that the mandate prescribed in these amendments was made imposed on the state power. By way of incorporation, the due process requirements, say, the privileges and immunities clause, could not be interfered by the state government. The contemporary problems about the constitution and human rights extend our deliberation on its nature. It contains, as we plainly encounter, many of sublime ideals to merit the extension possibilities as a guide or in a principled way (Reichert, E., 2011). In prolegomenon through its current status, it must be public and limited to react against the abuse of governmental power. Hence, they are not ordinary moral norms applying mainly to interpersonal conduct. On the other hand, the social evolution and increase of economic capacity allowed a new assessment or perspective how the constitutional affords could be received. It actually provides the moral standards which possess a universal appeal (2011; Donnelly, J., 2013). Furthermore, the classic liberalist view to check and balance as well as to limit the governmental power does not exactly fit within the contemporary passion. We often no longer need to be thrilled at any of tyranny or dictatorship unlike the circumstances of mightier Kings or revolutionary contingency. The practical problems had shown its extension of application that the private nature of contract might be invalidated from the human rights consideration. For example, is the private contract void if it includes a discriminatory clause against the minority? If answered no, how the response would change provided that the contract was enforced in the lower court, and appealed to the superior court? In the latter, the context may transform into a public matter since the lower court enforced such discriminatory contract for the black people. The court now can find an avenue to apply the constitution. Of course the ways or extent of discrimination should be weighed in given that it is private nature of relationship and submissive to the party autonomy. The case actually debated in the courtroom included a shocking arrangement to disable an access to some of residential zoning entirely by the rental agreement. In multiple factors of consideration, the courts now find a violation of human rights within the private sphere by applying the state action theory. This implies that the contemporary constitutions may be the kind of moral document in a limited context, allowing to meddle into some of private dealings beyond the rule of law concept. Therefore, it exists as moral and/or legal rights conceptually. On this 32 strand, it is interesting to see T. Pogge’s view that we can generate individual duties from human rights (Stanford Encyclopedia of Philosophy: Human Rights, 2013). Dynamism in a Conceptual Understanding The initial phase of human rights henceforth evolved in progress to address the circumstantial needs and shape a new understanding of this concept. This means that it is dynamic to interact with the wake of history (Donnelly, J., 2013). Its quest to place it as the supreme status of national attention came from the bottom line, but had been conceded with the democratic rule in interplay and development. The government now accepted it as a first priority to respond that the negative cognizance of human rights turned to underlie the state duty to protect. Now the tone, “the government should not interfere with the freedom of individual,” changed that “the government has a constitutional duty to design and implement an adequate institution or policy to prevent the crimes.” The constitutional document would less be for a check and balance scheme, but could be a positive ground that the public administrators may recourse to base their policy choice or implementation. In this context, the human rights are not static that can be invoked only in the case of infringement or in the purpose to remedy the evils or harms. Given the passive quality of judiciary, however, this aspect of dynamism would range in a limited ambit that only can be addressed by the political branches, the US Congress or Executive (Maccallum, G.C., 1993). The separation of powers principle then factors circumscribing the span of constitutional dynamism. The court has no authority and resources to command positively to realize the constitutional virtues. The aspect of dynamism, as said and not perfect though, would differ if the court strives to connect a nexus in the purpose to apply the constitutional mandates to the powerful private entities. In the state action theory, the court tends on the modest stance in progressivism while it comes restrictively if the issue goes to the structure and function of government. The concept should be dynamic in its very aspect of human dignity (Hicks, D., 2013). The notion generally depends on the circumstances and status of society. A desired status of human condition would not be the same as centuries ago although the extent is not on a speedier turns like decades or years. A rapid transformation of society from the technological advancement, notably on the aspect of informative society, may shorten its turns. In any case, the desired human status may be conceptualized in responding to the evolution of society. This context can be evidenced from the generations of human right, i.e., first generation, second generation, and third generation. The waves of this new formulation may correspond with the political history, say, feudal, liberal paradigm of industrialization, and post-modern context of our livings. The feudal governance and social structure incur a serious injustice for the rising class. Their quest to restructure the system was collected into the bill of rights which reflected the fair share of new wealthier class. They then quested to freely express their idea, freely assemble to organize their political voice, and to be ensured of the property right and freedom of contract as well as personal liberty against the unlawful search and seizure, and so on. The second generation of human rights purported to react against the wrongs or social dilemma from the liberal capitalism. Now the human dignity became only to be restored by ways of social right concept (Hicks, D., 2013; Reichert, E., 2011). The right to labor, mandatory labor standard, right to the social benefit, and the kind of collective response were deemed ways to ensure the desired status of human condition. A predominant scope of them would cover the economic justice. The third generation of human rights advanced to ensure a decent living or human condition in this complex and challenging society. Then the class of rights requires a recognition and awareness as well as constitutional protection, which encompasses the right to decent housing, right to education, and right to the 33 pleasant environment, and others. On this point of dynamism involving the human rights concept, we also can note the attitude of concept and current practices, which span over the concern of human rights inflation, God-given natural rights, specific and problem-oriented ways of approach, feasibility to administer, too little or too much of international documents on human rights (Stanford Encyclopedia of Philosophy: Human Rights, 2013). A Concluding Remark : State Administration and Social Progress I may, in addition, deliver two points which concern a dynamic nature of human rights or constitutionalism. As T. Talbott expounded, the human rights issue would be fairly nationalistic, and reflects a specific culture or compassion that entails the kind of structural issues as less susceptible of any universalistic generalization (2013). This idea has a root ground from the ancient thoughts and primordial intuition of communal primacy. This view is less done on the ages of enlightenment or human attributes that can be shared, which may go extreme to betray. The logic and argument, however, have strengths in the practical aspect. For example, the developing status of national economy may lead to a different level of human decency or the non-intervention policy as a matter of international politics may find their theoretical ground from his proposition. It also can be more adaptive to the concept of state sovereignty rather than the international commitments of human rights. This view also offers an easy way to account for the public emergency which threatens the life of the nation. The second point is why a plethora of contemporary constitutions have a written commitment about the second or third generation of human rights. The critiques argue that the scope of those human rights would not be enforced as a matter of legal right. This constitutional policy of direct incorporation would vitiate our understanding as a right. It is merely prescriptive to expose a vision or ideals that the state pursues, hence, is not a right in the strict sense. This goal-like dealings would blur the notion of human rights. This perspective, however, relates with the concept that human rights are negative rights, but it would be wiser to consider that the first generation also requires a positive engagement, i.e., creating an effective system of criminal law and property rights (2013). The US constitution would not be subject to this criticism, but it vastly matter with other progenies of contemporary global jurisdictions. The critiques also argue that they incur too much expensive cost to realize and their constitutional status is dubious, particularly for the non-enforceability. We may agree on this criticism as a public policy student, and probably find that the financial burden of poor government come at first. One idea could elicit the cause of this constitutional policy that the classic human rights also face with any same dilemma since the rights, as said, also can be afforded a constitutional protection by incurring costly institutions. Then there would be no explicit reason not to declare those rights as fundamental or essential. Reference Donnelly, J. (2013). Universal Human Rights In Theory and Practice, Ithaca, NY: Cornell University Press. Hicks, D. (2013). Dignity: Its Essential Role in Resolving Conflict, New Haven, CT: Yale University Press. 34 VII. A Human Rights Violation and Workplace Introduction The public employees, as we learn, have a duty to respect the human rights in the course of execution of their position power. The kind of dealings to respond with the human rights violation may involve a court proceeding where the context would be posed and resolved in some more stricture of legal terms. The officers of government other than the judiciary, nonetheless, would shape their conscience and position ethics in the adherence of constitutional mandate. The congressmen would be specifically phased out in Article One, and their ambit as well as course of work demand, organization and other key features would be delegated by the Constitution. The president is prescribed, in a direct way of constitutional provision, “he or she is obliged to faithfully execute the laws and…” This mandate, as a matter of logic and line hierarchy of Executive, would be pertinent to a scope of Executive officers. Public organizations other than the government may not be immediated to the constitutional mandate, however, we can see high chances to be regulated by the Constitution, as we see in the cases of affirmative action embroiling the public universities and public bidding. Other private organizations also may not be complacent with their status out of the force of constitutional vision. The reason would be that the state action theory may apply to defame their business reputation and can incur a loss from the damages or others. This awareness, in other aspect, conforms with the ethics of business, entrepreneurship, and social justice. It would be desired from the concept of state action theory that scholar practitioners would bring the social change (Laureate Education, Inc, 2013). Three of the Prison Mistreatment I like to brief on three cases of human rights abuse in the workplace, and present some thought in the assumption that I was charged with the job responsibility at matter. The cases involve a prison setting in which the prisoners are treated unduly in violation of human rights. Korea, in the ethos and passion from a Paris initiative, instituted the National Human Rights Council (NHRC), whose role and power of institution would be similar, in its nature and extent, to HRC of UN (Universal Declaration of Human Rights, 2013). It collects the events of human rights violation, reviews their profile, advises on a correction and alternatives, publish the case books as well as comment and opinion. The human rights violation about the prisoners are serious that reported 35 percents of the whole complaints filed within NHRC (Mun-Wha Daily, 2013). This accounts for one case among the whole of three in math, which deserves a nickname of prison, a “worst devil” about the human-rights public moral. One prisoner, aged around his twenties, was appalled at the sudden demand of body examination when he was escorted to the prison upon a completion of criminal interrogatory in the prosecution offices. The prison officers told that it is an internal regulation to conduct a physical examination when the prisoners came back from outside. He ordered to take off a prison uniform in the public place where other persons are present. Mr. Kim pleaded that the process could be enforced in other confidential place, but was rejected (2013). So he was compelled to expose his body as undressed entirely in the public vision, which includes female prisoners. The context of process imposes an extent of personal shame and debase of human dignity, which caused to file a complaint. Other prisoner, who was aged around forties and now released from the prison, experienced a 35 cruel measure from his altercation with the inmates. The prison authority ordered a handcuffed status of two hands, his upper body being tightened in ropes, and eventually was delivered into a solitary room (2013). This violent measure incurred an aftermath of hospitalization from the callous wrists and fingers. Another prisoner, who was in his forties, was served an inhumane and cruel decision that his petition to an adequate medical care for his chronic illness of bone disk was denied. He suffered from a serious pain and was disabled to walk nor move. The medical assessment that he should be afforded a systemic treatment for one year failed to effect. According to the statistics published by NHRC, the prison context of human violation is a most popular cause to bring a petition. Among 56,415 reported in the section of public institutions, the prison explains 35.3%, 19,932 in number which is most notorious. The police and its supplementary facilities came second in rank that 12,038 cases were reported (2013). The third in row is a public mass camp for the homeless and social protection services (9,071) and the fourth in other unclassed categories of government (5,630). In the last year of 2012, 1,737 cases were reported to claim an intra-prison human violation while the number never reduced this year. One officer of NHRC commented, “The reason for an abundance of human rights violation in this facility would lie in the nature of institution as well as constant monitor as well as on-site activities by the NHRC” (2013). Assessment and My Viewpoint The human rights abuse within the prison exhibits a good point of consideration about the role of public officers and concept of public value. This is because that the nature of public administration requires pursuing a public utility in the sacrifice of private or personal interest. This focus would well be churned in Bentham’s philosophical works extensively (Postema, G. J., 2006). His episode about the dilemma arising from a highwayman and housebreaker shows a hard-reconciled tension as well as pleasure and pain, which are a primal point his thesis begin with. His wry wit can well be understood if the public service is deserving of the kind of sinister persons. It is an irony, however, that the public administrators are required to execute their role and responsibility for these vile people and in conformity with the liaison or network concept as arranged to administer the maximization of happiness (2006). It leads to a free riding injustice, the concept of which can also apply to the contemporary cases. For example, we consider a more due framework about the extent and scope of intellectual property in the international plane. The developed countries argue on a more extent of legal protection while the underdeveloped ones countered. The sense and concept of justice differ that the developed countries impute a free riding accusation for their opposites. In the precept of Cicero, the rulers and public administrators seek a justice, which could only lead to a human solidarity (2006). The state of human solidarity also can only be procured in the event that the private and personal interests coincide with the universal interest according to the Bentham’s calculation. This interplay would be only an avenue that the humans can find a pleasant public life provided if they are any political or social animal. It controls and determines the pleasure and pain, and may influence a final state of happiness as we pursue in the context of definite human goals. 36 That said, we consider a prisoner’s predicament and our personal state based on the fact brief as disposed above. Some may get instantly conflagrated to elevate the standard of prison regulation. The others may see the treatments deserving since he or she is a sinister actor in contradiction to the overwhelming public cause. The four elements, as envisioned by Bentham and composing the universal interest, would not contravene this view, which are a “maximization of subsistence, abundance, security, and equality” (2006). Their status as a prisoner would well be responded with his “fallback principle,” such that the standard would be lowered to suffice four elements (2006). It satisfies the condition that an equality and security would be ensured among the prisoners themselves. Their claim to seek the same status as his law abiding neighbors on those four would come never merited. The points of focus in these cases could be posited in the light of “centre of gravity” argument. The interests to be weighed in involve a sensitive area of personal privacy or right to the basic health and humanly living within the controlled context of prison administration. They might be intervened with less a persuasive reason or deprived implementation not carefully designed about the abuse on human rights interest. The physical examination could be delivered in a confidential area or in decency without costing much. The handcuffed status, particularly on both hands, and upper body in ropes, would make a prisoner appear like the beast immediately captured and delivered into a public shelter. The confinement into a solitary room might be sufficient to prevent any post violence problems. It also can be put to improvement if the prison authority respected the health petition more generously. Reference Laureate Education, Inc (2013). Ethics and Social Justice "Human Rights: Applications" with Amanda Baker (approximately 8 minutes). Mun-Wha Daily, Sep. 24 2103, p. 10. Seoul, Korea. Postema, G. J. (2006). Interests, universal and particular: Bentham's utilitarian theory of value. Utilitas, 18(2), 109-133. Universal Declaration of Human Rights.Retrieved Oct.1, 2013 from http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf 37 VIII. The Utilitarian Theory and Human Rights Violation Introduction The primal strand in the public utility or utilitarianism recourses the human elements, in which many theories, tenet, and polity would undertake as a niche of intellectual persuasion and account. For Bentham, the pleasure and pain are a destination and point of shipment to project his extended concern and philosophical dialectics (Postema, G. J., 2006). His discourse and systemic contention to explain and forefront an inchoate liberalistic society, later highly influenced the work of Mills in terms of political moralities and political sociology. Both are generally considered most profound authorities to marshal intellectually the ethics and public virtue of English speaking concept which had been developed and adapted by the elaboration of Rawls in the twenty century. A revolutionary ethos and turbulence actually dismantled an injustice from Ancien Regime, but the practical consequence had to suffer from the emergence of Napoleonic contingencies in Europe and interstate contention or incongruence leading to the civil war in US. New philosophical wave has been received as inviolable or inalienable, however, how it could be practically achieved posed a challenge to the scholars and public authority. In view of Cicero’s precept, a human solidarity, an equivalent of justice for the rulers, could only be settled on “societas et communicatio utilitatum,” the community or public utility in modern words (2006). This concept would be compatible that the humans are a living creature within the community and only could possibly exist in that context. That said, the human elements now turn to have a meaning in the context of interplay with the community and public. Humans can only be solid in the eyes of such strong Rome and its state theorist within this concept of justice, and their true interests can be negotiated or delivered. In the Napoleonic errand, the public administration has been made rather solid when a modern major genre of national codes was erected and applied in France and the conquered lands, i.e., civil, criminal, two procedurals to serve the substantive rights and duties, as well as administrative law. It is a notable achievement to substantiate the new wave of bourgeois public or democratic virtue. Nonetheless, his background and ways of militaristic imagery had confused his mission to be politically interrupted. His contribution to advance the democratic concepts is assessed positively from the historians. Particularly, his vision and realization of new public virtue into five major national codes are now followed by both of major legal traditions notwithstanding the common and civil law distinction. While the constitution was not declared in an independent scheme, the universal declaration of human rights serves that purpose and more classic or deemed fundamental given no nomenclature to dress it up as a constitution. The new continent began their public administration on the basis of federal constitution, but the federal power was contested in the initial phase. The scope of federal administration would expand and be adjusted to serve the public value and humanly government or public administration. As we note, the commerce clause and contract clause as well as the necessary and proper clause offer the ground to deliberate both standing concerns. A Survey of Basic Tenets on the Utilitarian Theory As a pioneering engineer for modern public administration, Bentham’s concern should rise involving the concept of universal interest (2006). What is universalism? It, as a matter of nature, takes the ways to keep on the logic, tone and metaphor from the kind of fundamentalism, rationalism, and idealism. In order to be universal, it has to be reasonable and also should be idealistic to possess the quality as a universal appeal. It also could serve if 38 to ground on some of fundamental dealings that the mankind could commonly share. Then, he would be a good student who borrowed the concept and theory from David Hume or German idealists. His moralities argument had suffered from multifaceted challenges on the civilian quest for the personal or private interest, which should well be expected from the aftermath of civil revolution. This context can be evidenced from his words, “the world now is fleeting and rare,… insanity” (2006). He also explored the context of international politics in his book titled “Constitutional code,” and exposed a sentiment in his critique of Spanish colonialism, “Typically one’s recognition of this commonality produces a sense of solidarity : by this very community of interest is produced a community of sympathy” (2006). Hume’s influence, as from “Enquiry concerning the Principles of Morals,” would be a necessary condition to develop his humanistic public philosophy, but not a sufficient condition leading to his tremendous contribution for the modern substance of post- revolutionary administration. As we consider, his view also influenced the Weberian concept of practical capitalism and bureaucratic practice while the work of M. Weber, as we see in the ethics of bureaucracy, explored an extended scope of factors, which cover the social custom, religion, compassion and tradition beyond a raison or principles (Murphy, A., 1998). In any case, the perception of Bentham would be more urgent and immediate to bridge the rising quest of civilians and dilemma of how to shape a political sociology or political moralities. Therefore, his nexus comes forward with the communal consequentialism and may develop into the compositionalism as the kind of end state that the public administrators envisage. The social welfarism and individual welfarism may correspond practically with his basic exposition between the universal and private or personal interest. He has some aspect of distinction between the private and personal interest, and his narrative massively relied on the scale of interest given his errand on the public good or utility (Postema, G. J., 2006). So the personal interest may come more trifling than the private interest while both are merged or adjusted to the grand scale of universal interest. He saw that an individual happiness can only turn legitimate or possible to coincide with the universal interest. This ideal comes rather authoritatively and as structured between the public and private dualism (Audard, C., 1999). First, he waived much of contemporary understanding about the role of education. Rousseau and other European thinkers focused on the importance of education and could be corroborated from the work of John Dewey, one of eminent public thinkers from the United States. Second, he also overlooked the potential civil power particularly within the traditional operation of civil laws. His book dealing with the civil code discourse connoted implicit difficulties along with the civil justice on economy and personal status. While we consider an importance of these strands in this contemporary public administration, this may bring his work on a formalistic philosophy, but it is undeniable to proffer a vertebrate organism of it (Murphy, A., 1998). Then his dilemma may revolve about the fundamental confrontation between the equality and utility (Postema, G. J., 2006). Everybody would claim an equality to be static in view of the post-revolutionary imperative. It poses challenges in leading a social or economic reproduction. Nobody would do more, which means just a sacrifice to labor or submit to the public service. It merely would be a heroic sacrifice that Bentham saw a kind of worst or trifling scenario. The equal liberty or equal happiness in the Bentham’s word, other than equality, would engineer their motive to labor given the new capitalistic economy. For example, the equality, which might be graced from the Christianity under the God, now turned on the new political and economic arrangement. They now can claim the property rights and freedom of contract. This emancipated a bourgeois class, however, should be 39 reconciled from the constant tension between the public and private interests. His alternative to deliver this tension comes from the concept of utility or public utility. His analysis draws on the basics of us so as to realize a happiness, which he also perceived as a sovereign master of human motivation and behavior. Therefore, his dealings may culminate in Chrestomathia, which churned on the ideal of public welfare (2006). His junction also could not be compromised in any plain version with the kind of ideas, monarchy or oligarchy since it, in normal conditions, contradicts his ideal of greatest number of happiness. His adherence with the happiness conception never is an abstract nature, but could be substantiated with his words, “greatest equal happiness” (2006). In order to find a proper principle to achieve this end, he has not neglected to deal with the problem, such as identification of interests, genus et differentam, the centre of gravity, and etc. His philosophical disposition on these points are fairly echoing for the modern public administrators. We often consider that a superior public official is competent to identify the conflict of interest involved in the specific public agenda or sensitive issue. They also need to possess a talent and concern about the genesis and differences involved in the object, challenges, issues, projects, and public programs. Then his frame of argument turns again on the tenet between the universal and particular interest in the Book of Fallacies, which he perceived as challenges against his concept of public value, what he called a sinister sacrifice or interest. He saw a constant tension and implacable hostility, and an individual only could maximize his sum of happiness to conform his private or personal interest to the universal one. He, however, degraded the heroic sacrifice since it results in yielding all the instrumentality of felicity and even the life itself (2006). He saw it mere altruism which is neither welcomed nor in comport with his tenet on the sacrifice to the universal interest. His adherence to sacrifice for the universal interest is called upon the premise that the individual has a share in cause of sacrifice and has a genuine basis on the individual ground or human attributes, such as felicity or pleasure, and others. Therefore, he cherished an individual aspect while he stressed on the public cause or reason. This way of approach reflects then dominant assumption on the life, who was endowed of the right to pursue a happiness in the preamble of US constitution. The idea also endorses the role and extent of dominance of civil society between the “subject many” and “ruling few” as well as their protestant ethics or conviction on the revolutionary spirit. An individual, now in a new framework of politics, is the person to be motivated in their interests, which would be prurient or commercial. He was shrewd to look at this aspect, so that he never overlooked the genesis of human or individual. His idea is fairly liberal and democratic, as we see in Kamikaze in the Second World war. The incident, of course, was militaristic and serves the totalitarian cause of imperial Japan. Therefore, the concept of “compensation” arose to bridge the civil interests and public authority. Kamikaze had no basis of individual interest who was pushed forward to sacrifice their lives. Bentham also staggered critically about the aristocracies which he would be reluctant to endorse on his theme of public value. The politicians, landed aristocracy, clergymen, and legal elites were no longer the main of social or economic reproduction, who were idle and predatory (2006). The oligarchy or well structured classic society was seen largely failed to correctly reflect the social justice which came contrary to maximize the greatest number of happiness. In perversion, his illustration involving a highwayman and housebreaker shows the context of social injustice and well provoked a free ride’s calculation. He hardly found any point of public utility for this group, which would be yielded for normal citizens from the public service, such as national defense or policing. In this case, the fallback principle, a close concept of specified justice, could be applied to ensure a maximum happiness. Three Cases of the Human Rights Violation 40 In the application work of Bentham’s tenet, I like to illustrate three examples of human rights violation in the purpose of ranking them on the basis of maximum public utility. That might not be less accurate in a strict terminology of human rights violation, but was drawn in the close context (Universal Declaration of Human Rights, 2013). In the militaristic nature of Korean government during the early of 1980’s, Jong-cheol Park, who was a college student at that time, was tortured to death, and stirred the public sensibilities and antipathetic reaction. The government, at that time, was of hard nature to control and overwhelm the civil society. Korea was then one of underdeveloped countries, and the environment of dictatorship could be fertile. There had been a scope of public cause for the central control and tightened context of rule, for example, development of the national economy and assurance of the social welfare and justice, national security from the aggression of North Korea, and so (Laureate Education Inc., 2003). The incident involved an outrageous conduct of government, specifically the police branch of anti-communist team. Mr. Park was just a suspect, who was allegedly engaged in the public demonstration to restore the democracy of nation and legitimacy of government. The atmosphere of society was well tamed and structured, though questioned seriously on the ground of its legitimacy, under the ideals of national stride both in economy and national prestige in the international community. A limited scope of students in vigil and civil monitors occasionally mobilized a public campaign and street demonstration to react against the undemocratic practice of government. The opposing politicians might have a link with the progressive group of society including the college students. The incident led to the national controversy, and its consequence was serious with the series of protest and picketing in the public streets, and public rally of mass people. The initial response of government was ironic and bought a public outrage that the fact was fabricated. They alleged no torture, such as water boarding, electronic stick, nor application of irresistible physical force from several of torture technicians. This allegation actually proved false from the testimony of one conscientious clergyman, and all the truths were revealed with the aid of public media and civil activists (2003). This incident, which occurred in 1987, conflagrated a public cause of June march of Korean citizen, and led to the consequence adopting a direct election of president. The constitutional reform was realized to restore the separation of powers principle, five years term of presidency, endorsement of privacy right, and others. Most importantly, a superficial method to elect the president in the stadium by an highly dependent electoral body, which, however, represented the national cause monopolized by the ruling party and practically governed by it, was replaced so as to ask a direct will of nationals. The concept might be formalistically similar to the electoral college system of US, but the practical operation would come closer to the communist mode of secret election. One other example would rise from the present context of Korean politics. Lady President Park once promised to design a national welfare system for the aged people. His promise contains the policy that the people over 60 in age would be entitled to 200 US dollars on an annual basis unconditionally. It would be idealistic, and serves a universal interest in the Bentham’s calculation (Universal Declaration of Human Rights, 2013). It now became floated away in the face of tough national treasury. Her administration may well buy a public antipathy since the promise was made during the presidential election and should be kept. The reaction could also be organized in the opportunity of opposing party, and still contended in the National Assembly. This year’s budget will likely face a stiff response in the end of this fiscal year, and may have high chances as usually charted with such physical confrontation in the floor. A physical confrontation and violence is practically an equivalent of phillie buster in Korea. The nature of issue comes ironical as similar to the US case, named 41 “Obama healthcare.” The direction would be perverted, however, that Korean government, in this case, initiated to reduce the welfare benefit. Lady President presented a public apology for her breach of promise, but her action would be supported by concerned intellectuals and professional policy makers. That is because the government frankly would mislead the public if to keep her promise. The debt of government became tremendous and her promise requires an excessive budget without any economic impact to breed the national economy. A disappointment of social minds and ill consequence on the deprived class, however, would be obvious. The last example would be a Mr’ Chae’s ethical violation and its consequence, which has covered months of media coverage, his retirement, and intervention of supervisory body, say, the Minister of Justice and President. As a chief prosecution officer, he was accused of his wedlock baby while he may consider himself as one of scapegoat cases. He may have been disgruntled with the attitude of public media, or personally apprehended with any of political plot against the carriage of his official responsibility. He may esteem himself as to lead the KPO impartially and had a belief of sanctity on the institution’s quasi-judicial quality of public power. He would like to execute a statutory term as the kind of modality unlike his predecessors. He also may deplore an invasion of privacy as a lawyer, and may now have an awareness about the serious consequence from the leakage of private information. He also would consider his status as a public figure and may weigh in factors to be in pertinence. He actually resigned yesterday, and held a public memorial to honor his retirement. His plan is to withdraw a civil action, yet to keep on his promise about the gene test. However, it is dubious whether it could be realized since the consent of biological mother should be acquired. A Possible Rank of Three Cases in View of the Utilitarian Theory Three examples described above would involve the human rights violation. In the first case, we can note a serious nature of human right violation patterned through history (2013). The torture is just the point of focus that the modern civil movement triggered to abolish. It relates with the fundamental civic virtue to ensure against, and has duplicated as a constitutional mandate across the scope of global jurisdictions. The third example also elicits the kind of confrontation between the liberty interest and public cause. The privacy right is classic, but comes into a legal province rather belatedly in the new frame of modern virtue. The second example involves the human right to any entitlement of social benefit or privileges. In the purview of Bentham’s, we hardly rank them in any order concerning “pleasure and pain,” the greatest number of happiness, equal happiness, and maximization of public utility (Postema, G. J., 2006). That is particularly because his idea was never intended on any math or quantification. This is not to say that the quantitative analysis should drop or comes meaningless. It could base well in force to persuade on the policy strengths or urgency to implement. However, I mean that it possesses a quality element as we see in his thesis, the “center of gravity” (2006). That aspect is important particularly because the policy makers often face with the issues and dilemma of multifaceted and complicated status. A social passion, tradition, administrative custom, prevailing concept of politics, morality, and many others beyond the economic factors of cost and benefit would come into play. Therefore, the intuition and instance also has some prongs to perceive the challenges and shape the policy response to address the harms or evils. That is particularly because the “pleasure and pain” as well as the concept of happiness as a measure of public utility are ultimate as we can share, yet not to be definite as a matter of quality. I am not sure how we can finely rank the above three. But I suppose that we may agree if it could be first, second, and third in order if we 42 exercise our intuition. His point about the centre of gravity would tell much to leave the last two behind. Bentham’s concept of universal interest also plays to make the first case more serious and safeguarded (2006). We may well conceive a fear and would fail if to let such practice to go in that way. Bentham’s four prongs of public value also corroborate that a security or maximization of subsistence would be fundamentally depraved in the first case as compared with the last two cases. An equality and abundance come to matter in all three cases, but come poised in the balanced consideration. For example, the equal liberty claimed by Mr. Chae would be legitimately traded off in the public interest. He is a public figure which is an enabling factor for some extent of public disclosure. The equal liberty claimed by the aged people of Korea would have a stronger profile than Mr. Chae’s case. However, that is also amenable to the discretion of government and other competing virtue of Korean Republic. The maximization of subsistence interest may rise in the second case, but it is dubious how much the policy can lead to the after-years lives in peace and affordable subsistence. Abundance also is a very difficult concept to weigh in any definite direction on our examples. Then we now apply his tenet of universal and private or personal interest where the individuals should comply with the former in the maximization of his happiness. If the human rights violation were to be resolved in other way, the private interest and universal interest would comport among another. On this test, the outcome would be similar that the first case only can ensure definitely to share both concepts of interest. In the second case, we see the universal virtue of social welfare, but could be well rivaled from other kind of public interest. The third case would go into a jumble of different values across the culture, social attitudes, legal theory, custom and intellectual divergences. Given the universal interest comes not in any clear context, the third case would be ranked in the last. A Concluding Remark His idea is foundational in theory and tenet, and can persuade many challenges and issues to be resolved. His contribution would convert a youthful idealism into a practical ground with the weighty responsibilities of public organizations. Our lesson also lies in his view about the nature and function of public administration, for example, “liaison” uniting them and “public felicity.” He also recognized the hard nature of public cause or engagement in contrast between a “chain of iron” and “rope of sand” (2006). Although the private interest is only to be endorsed if to coincide with and share the universal interest, there often would be so a strong of private interest like the iron, and the public role would likely search a rope of sand. As we acquiesce in his dealings, “community of interest” and “community of sympathy” in the Spanish America or the concept of “alliance and partnership,” it might be a product of influence from the colonial experience, hence, international in quality, but also coincides with the national dilemma, for example, civil actions in the courtroom between “procedural and substantive.” How to design the civil procedure in the end of speedy, fair and impartial administration of justice would be a concern of public felicity, however, secondary and merely supportive to the serious contention about the property right or private interests. One example could be a former form of GATT, 1947 GATT, in the contemporary international politics, in which the GATT council was relegated as mere a “liaison office” without any decisional power. In any case, his idea is actually ambitious and persuasive to cultivate the public officers, as we agree on his four elements of public utility, i.e., maximization of subsistence, abundance, security, and equality (2006). This quality can immediately subordinate the right, a most enhanced form of private interest, serve the proper ends of government, and comport with the foundations of civil law, and are considered as constituents of universal interest. 43 Reference Audard, C. (1999). Anthologie historique et critique de l'utilitarisme, tome 1 : Bentham et ses précurseurs (1711-1832). Paris: Presses Universitaires de France – PUF. Murphy, A. (1998). Reason, Reality, and Speculative Philosophy. Madison WI: University of Wisconsin Press (1996). Laureate Education Inc. (2003). Ethics and Social Justice "Human Rights: Applications" with Amanda Baker (approximately 8 minutes). Postema, G. J. (2006). Interests, universal and particular: Bentham's utilitarian theory of value. Utilitas, 18(2), 109-133. Universal Declaration of Human Rights, Retrieved Oct. 3, 2013 from http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf 44 IX. Equality and Distributive Justice Some Thoughts on the Concept of Equality The concept of equality is dressed in a different ethos and understanding in history and tenets. It certainly does not connote the kind of identity or nor cohere the objects in any identical finding. It is, therefore, a relational and social concept, which is directed to the human beings. A morality-based equality does not compel to treat the objects same, in general tense, but similar, and complete or absolute equality might be envisaged, but either practically hardly achievable or deemed undue to address the equality challenge. Hence we consider the general and specific context of justice which presumes the idea of distributive justice and can respond to an argument on equality. As a modern critique, R. Dworkin lodged his viewpoint of disagreements about the proposition of absolute equality (SEP: Equality, 2013). He rather cast a competitive strand drawn from the value concept where the equality quest should be contested in a respective province of society. It is interesting given his scholarly pursuit as a legal philosopher. He is generally considered to bridge the common law tenet and ethos with explaining some of coherent uniformity and possibility of governance. As we are aware, an ultimate purpose of law underlies the liberty and equality within the subject. These concepts would be sublime and enjoy a sanctity that undertake, however, a scope of realistic challenges. Particularly, the pragmatic measure and perception from the common law lawyers like to substantiate them to expand the rule of law ideal in the hybrid or multifaceted layer of international structure of governance (West, C., 1989). In his framework, the concept of value rose to center in penetrating a new wave of demand in the international politics. The legal pluralism can also be projected in his ambit and law elements to enable the picture of ideals as we note in his treatise, titled the Empire of Law. So the value, in his thesis, plays leading us to a legal plutocracy and legal pluralism, which opens the eyesight to the realistic posture of our legal system. Then, his perception of equality would not be one of formalistic generalization, but enriched a scope of distributive justice to the emerging diversities via emancipation and post-colonial new republics on earth. In a most comprehensive context of equality moral could be encapsulated in the nomenclature of egalitarianism under which a tack of principles or specifics would be proposed, contended, argued, and debated. In approaching the concept of equality, there are two ways in deals as a matter of intellectual strand, which would cover a descriptive equality and prescriptive one. This view was proposed in most extent by Oppenheim, and accounts for the realities of equality narrative (2013). The descriptive equality concerns the kind of story telling practically shed in our realities, which also could be afforded in an enhanced application in the tradition of common law jurisprudence and post-modern context of intellectual exposure. The ways of approach can lead to an inductive reasoning practiced on the attitudes of common law judge. They never mind to become a story teller to expose a lengthy fact about inequality or harms on injustice. Of course, their final destination would not be merely descriptive so that they analyze the facts to find a most proximate precedent to be applied. In rare cases, they undertake a solitary role to shape his or her own rule given that he fails to find a binding precedent. The context of judge-made law begins with the concern of descriptive equality to finally produce a forest of prescriptive equality. It may be compiled in order, as in the Restatement, to respond with the civil code and prescriptive justice or equality. The ways of approach would be quite opposite in essence concerning the civil law tradition, which, 45 nonetheless, sees an extent of convergence in the practical viewpoints. The prescriptive equality would come, in the first, as to the statutory requirements or provision. A deductive reasoning would be undertaken to apply the law to the facts presented. A phase in the intellectual deliberation, in any case, may often be resolved in tertium comparationis to allow a distinct preserve of jurisprudence as in other area of disciplines. This view can also expand to other disciplines that we often class them in the inductive and deductive formalities (Jeffreys-Jones, R., 2013). The sense and attitude about this point may pose a grand disagreement between the creationists and evolutionists in the past years. We may reflect on our intelligent strand as a public policy student, which would also be advisable given an increasing number of public laws, hence, in a form of statute, as well as needs to refer to the case law in dealing with the public agenda. In consideration of the equality concept to be realized in public administration, we may deliberate on morality and justice in general and distributive justice in particular (SEP, 2013). Actually the policy environments would be constituted from actions, persons, social institutions, and circumstances, which drives us on how to pillory certain inequalities. We may defer to an ethical individualism, but keep on his or her voluntary action and can allot the responsibilities, who would be a policy subject. In the course of weighing, we can learn the general and specific concept of equality as Rawls and Roe expounded. We may revert, in some cases, to the basic about the formal equality and presumption of equality. Within this province, we are required to treat like cases as like (2013; Aristotle, Nicomachean Ethics, V.3. 1131a10-b15; Politics, III.9.1280 a8-15, III. 12. 1282b18-23). In view of moral equality, the humans or policy subject in the public administration should deserve a same dignity and respect as founded in the stoicism, new testamentary of Christianity and a scope of religious branches (also for example, Déclaration des droits de l h́omme et du citoyen of 1789). The presumption of equality would be sustained in various rationale and scholarly propositions, i.e., relevant reasons approach by Williams, a conception of symmetry by Tugendhat, default option by Hinsch, and even for criticism of the presumption of equality (2013). Also one useful tenet involving the equality concern can serve the foundation of our governance structure from the ancient times through the present context. The idea is about a proportional equality as meditated by Aristotle. The concept then comes applied beyond the moral aspect of equality by dealing with a numerical and proportional dimension (2013: Aristotle, Nicomachean Ethics, 1130b-1132b; cf. Plato, Laws, VI.757b-c). Therefore, it turns to possess the quality of being incorporated as the political ground, a virtue of head count in the equal election and governance measure, involving the proportionality concept, so that it enables a hierarchy and inegalitarian treatment. The findings of justice come to be pluralistic, realistic, and circumstantial, but on proportionality principle about the leeway of policy measures on different treatment. Aristocrats, perfectionists, and meritocrats would rely dominantly on this concept of equality and may be seen adapted in the kind of value argument from Dworkin (2013). A Case Review on the Equality Concern Let me brief on the case of equality controversy arising from the context of WTO measure. A preferential treatment for the underdeveloped countries in terms of tariff was deemed a kind of substantial justice or positive liberty in the initiative of UNCTAD around 1970’s. The rules and principles of WTO embedded a non-discrimination and liberalization 46 of trade, which governs the international trade regime. Hence the member states are owed to respect the fundamental principle which crystallized into the MFNT and National Treatment as provided within the scope of multilateral trade agreements. These principles ensure, for example, that the member states are required to levy a same rate of tariffs if the goods are of “identical product.” Hence, the concept of Aristotle, “treat the like case as like” was employed in the end of acquiring an equal justice. The concept of proportional equality also is assured that WTO, through its policy vehicle, monitors and controls the nation’s trade policy in advance, and provides a legal stability and predictability in some of hierarchy and governance structure. A numerical concept of equality also was incorporated by instituting a political consensus system generally on equal vote concerning the issues and agenda of WTO. The threat to equality, then, would be obvious that the preferential treatment on tariffs violates the equality because of its nondiscriminatory imposition. Country A would be prejudiced about a different rate of tariff while Country B may benefit from such preferential treatment. Country C has to keep on her promise, say, a tariff concession, often effected in advance and as general to the whole of member states, toward or with Country A. However, a preferred status from the lower rate of tariff for Country B operates yielding an unfair outcome to decrease the expected share which should be entertained by A. A relational concept of equality would be obstructed, and obviates the requirement of MFNT. The factors in this contradiction is notorious involving a popular contention between the underdeveloped group and developed countries. This dilemma also relates with the concept of positive liberty and substantial justice. We perhaps may share a same concern and ways of approach in the ontological argument about the first principle of justice and distributive one as found in Rawls. His conclusion to legitimate a justification of international aids or grants would hint on an attribute of contention underlying this dilemma. If we apply the value approach from Dworkin, the value could be endorsed in some cases, but may be rejected in other context. For example, the controversy about any due extent of legal protection covering the intellectual property among the two groups are notable that the value to guide a shape of legal dealings about the extent of protection can still be arguable on its merits. Then the general concept of equality now turns on a specific nature that a morality aspect of equality, often endeavored on the laissez faire concept of equal opportunity, would be recast involving factors, as said above, actions, persons, social institutions, and circumstances and so. The positive liberty, in some stronger ethos, rose as we see in the enabling provisions, that justifies an exemption of WTO obligations based on the statutory causes. The provision of General Exception would also indemnify the duties and obligations prescribed in the trade treaty. Here also was involved a political commission of UNCTAD, whose role is expected to support the underdeveloped economies. However, the attempt to institute a preferential system of tariffs on behalf of the underdeveloped countries initially failed to find a space in chapters of GATT. The way to recourse so as to pillory these inequalities could only be practicable through resolving the issue politically. A political nature of provision to deal with the exemption of duties and obligations is the Waiver clause, which can be granted by the weightier majority vote. This course actually was followed in the course of instituting the system, what we call GSP. Some Cases on the Distributive Justice 47 Please let me outline several issues entailing some of dilemma in our intuition of justice or equality, which I have considered to reflect our realities in the contemporary society (West, C., 1989). First, the UN framework is interesting to operate, in major, within two dimensions between the General Assembly and Security Council. The former organ accommodates all member states as their constituent in dealing with the organizational responsibility. They, however, have no realistic power to decide on a coercive action or remedy unlike the National Congress. The UN Security Council would be a unique organ to impose a compulsory measure or sanction where we also have two types of member states between “permanent and non-permanent.” The permanent members of UN Security council are comprised of five major powers, and non-permanent ones would range at ten. The latter serves a two years term, and the permanent members have the power to veto where one dissent may null any possibilities of coercive measure for the international justice and against intolerable challenges. Given the equal right of state to her sovereignty in the international community, the non-member state may complain about their status, particularly if the state is economically powerful or maintains on international bearing as the kind of lead or influence. Second, the global economy, in this contemporary framework, requires the states to be interdependent among another, and virtually could not survive if in shutdown from the international trade regime. This leads to such a high number of WTO memberships, about over 150, and recently allows us to witness the entrance of Russia and China. The advent of this behemoth was achieved in 1995 through the valiant efforts of international policy makers and on extensive negotiation of so long a seven years, from what we call Uruguay Round. The scope of jurisdiction expanded and many intricacies to catalyze their public role and function were instituted. For its foundational vision, almost all of significant global states were incorporated that the component and attribute of member states would be highly incongruent. Some states may be unable to the dire needs of people, and the national system of economy may take a different path as we find in the Communist case. In this background, the contention in basic ways of approach is notable, what we often call the North and South issue. The southern states, located in the southern part of hemisphere, are populated by low income earners, hence, massively underdeveloped countries. That is posed as opposite for the northern states. They are nevertheless as tuned, in tons of proposition, with the liberalization ethos and framework, which WTO envisages as its ideals and coincides with the developmentalist claim on the “level playing field.”In the counter thesis, the less capable states may raise their position in favor of the more concretized concept of substantive equality. Third, the admission policy of public universities are expected to administer fairly based on the quality and his academic achievement. That is required given its nature of organization which would not be compared to the private universities. In some cases, we bubble on a gossip about lots of donation, esoteric or other exterior element involving the children of famous politicians or superrich, which allegedly factors an admission decision of the prestigious private universities. However, that is just the case for pass time. In the context of public universities, it could be disputed as a matter of law, what we are familiar with in the label of affirmative action. The context gives us a useful point when we think about the nature and essence of equality and social justice. It exposes a scope of elements in contention which are often raised as a focal point to deliberate. To say, the simple or complex equality, 48 equality for welfare, choice and responsibility, equality of result, equality of resources and functioning, and so on, which many scholars visited to consider. Principles of Equality, Resolution and Points of Thought Let us consider the first case through the thoughts. The libertarianism has a repercussion to claim its primate value from the right to original freedom, being largely critical about the social right and redistribution policy (SEP, 2013). The state entity is often considered to enjoy the kind of similar aspect on an individual, hence, inviolable nature of selfdom and right to equal treatment in the international norms. We hardly find whatsoever reason to any privileged status, in principle, for the class of nations. A realistic lesson and history may influence the shape and work role within the UN enabling the concept that even a political issue is not to be complacent with the simple equality (Jeffreys-Jones, R., 2013;West, C., 1989). The concept of complex equality may be of use to explain this exposure if the permanent members are viewed to possess the power of policing the international community. A historical contingency upon the bitter World War II also factored to create this power structure, so that the utilitarian concept of equality would less be pertinent to arrive at persuasive reasoning. That is because the theory presupposes an equal share in tenet to maximize the happiness of constituents. Japan and Germany, for example, however, would no longer be saturated given the elapse of long decades and their rise or emerging impression nowadays. The choice and responsibility argument may enlighten a ground for this contemporary structure. Since two nations voluntarily assumed to wage the war and incurred a breach of peace, they should be responsible to be excluded from the sensitive foundation of world politics. From the camp on equality of resources, the “veil of ignorance” works importantly to explain the distributive justice as in Rawls, so that the difference principle may find its dimension on justice (SEP, 2013). They are, therefore, innocent from an unjust consequence from the circumstances beyond his or her control. They are responsible, however, to the consequence grounded on his decision or action. The tenet came rather applied in the case of Dworkin or Sen where the former shed a more emphasis on “ambition- sensitive” as a prelude to the Sen’s “equality of functioning” (2013). Both stressed on a human element and the life conditions more emphatically than the resources or economic elements. In this sense, we can note an “endowment-insensitive” plane that Dworkin has played to enable an equal intelligence, choice, decision, and value. He, then, would be more callous about the materialistic anonymity or capitalistic logic embedded on the autonomous or inhumane dynamism. His illustration, “hypothetical auction,” also implies his undertaking about the importance of human strands, which perhaps would be tuned most vividly with the choice of each individual. This way of thinking is less helpful in the first case given the realistic road of international politics would see the materialistic elements, such as the extent of nuclear capabilities and the national strengths dominantly from a materialistic quality on the basis (West, C., 1989). However, the creative economy and web-based business or industry, now in public attention, could be discussed intimately on his version of justice. Apple may have no manufacturing base or large facilities of factory. It earned a tremendous amount of dollars simply with some of high tech web network, which could well surprises the global public about its aggregate of corporation value in the stock market. We also occasioned, in the newspaper, a success story of information business, the function of which is distinctive from the traditional ways of business. Even the scholarly sector of business, say, contribution of 49 article to the journals, e-books and articles, and the mode of education and so, turns on the internet-based interplay. The equality of functioning, as Sen focused, needs to be adjusted by incorporating a technological advancement. For example, unincorporated limited liability entities (ULLC) are now to be a dominant form of internet-based business, which provokes our thought about the ethics, fiduciary duties of officers and directors, and possible misuse of business form as well as due regulation. What is an endowment in this case, in the sense of Dworkin, would perhaps be gotten in a different strand like the Apple’s case. The equality of resources concept can yield a very instant conclusion to support the current standard of WTO practices, and that would also be complemented with Rawls and Sen (SEP, 2103). How to boost the underdeveloped economies is a serious concern that we need to ponder through the delivery of trade justice in the international community. They may well be viewed to manage on the veil of ignorance and within the circumstances beyond their control. For example, they plainly would be frustrated with the level of high protection given the current standing of national science and the needs to draw any requisite knowledge or technology for their developmental paradigm. We perhaps would find no ways to accuse them of any control or choice on their behalf. The context also corroborates with the “equality of welfare,” though in some variations toward any “maximization of welfare” in the WTO commitment. A theme of WTO would likely be on the tons of welfare advocacies often available from the politicians. This attribute contributes to a special treatment of underdeveloped countries by exempting them from an instant institution and implementation of the western standard of legal protection for the intellectual property rights. They may be privileged by obtaining a legal counsel under the aid of WTO administration bureau and institutionally from the special proceeding requirements. This is because they are less competent to legally claim their interests and rights by formal proceedings. This status is also pertinent to the ambition-sensitive or functioning version from Dworkin and Sen (2013). In this aspect, the privileged group of states would be ambitious to play within the WTO system despite a less endowment and vulnerable capacities in disparity with their developed peers. That may be remedied from many provisions and practices instituted to procure the substantive justice and equality. I suppose that the third case has a distinctive element as notable against other two, say, the past wrong. The affirmative action designed and practiced in the US involves the concern and policy strand to cure the past wrong. Other justice theories most always trigger a progressive and future looking moral argument as in the equality of resources and functioning, ambition-sensitive equality as well as the equality of welfare. It poses, therefore, challenges about the equality and responsibility, perhaps pluralism and democracy or merits based approach. The affirmative action may serve a pluralism or democracy leading to the social congruence, but may damage some of merit based approaches often considered pivotal in the public education. That may relate with the equality of welfare in a distant picture, directly in some extent involving the affirmative action of public bidding, and rather constructively in the school admission policy cases. However, the countervailing argument based on the merit or quality of students is also strong. For example, they argue that a female would be assessed inferior to the male students in view of the learning and intellectual capabilities. Their message cast a suspicion of why only the black students are preferred in the admission decision. Part of countering argument may rely on the theme of curing the past wrong. It perhaps requires, however, undertaking a long journey to persuade from the different principle and veil of ignorance. We may be reluctant to endorse the factors beyond an 50 applicant control, and our usual criticism on the “brute-luck egalitarianism” can find a ground (2013). This generally pushed the court back from the generous stance by wavering on the case-by-case basis concerning its constitutionality. Reference Jeffreys-Jones, R. (2013). In Spies We Trust: The Story of Western Intelligence, New York, NY: Oxford University Press. Stanford Encyclopedia of Philosophy: Equality (2013). Retrieved from http://plato.stanford.edu/entries/equality/. West, C. (1989). The American Evasion of Philosophy: A Genealogy of Pragmatism (Wisconsin Project on American Writers). Madison, WI: University of Wisconsin Press. http://plato.stanford.edu/entries/equality/ 51 X. On the Equity An Outskirt Highway and the Equity of Traffic Fare Seoul is the capital city in Korea, and furnished an outskirt highway to round travel the city. The city officer recently announced that toll booths for the fare to use would be installed. In other words, use of highway now turns to be managed of the paid basis from free of charge system. The public now critically assess the nature of policy shift in square points of contention. One expert, Yong-hoon Park, who serves the Traffic Culture and National Campaign (TCNC), commented, it would be inextricable to change the system. In earlier years, the free of charge system would be effective and mutually beneficial. That is because a number of toll booths require an extended budgetary burden to install at all the lamp entrance places. In this case, the equity interest would not be well served, but the feasibility and overall value on the public benefit would be traded off (Laureaute Education Inc., 2013; Cooper, T.L, 2012). It is, as we know, highly related with the regional transportation demands, and the situation changed rapidly to aggravate toward an intolerable inequity among the region. That is caused by the increase of use exploiting a free of charge system. Other challenge also thrills the policy makers that some specific cuts of entire highway is conspicuously congested with many cars, trucks and buses. This incurs the traffic flows in the problematic cut of area would be baffled at lower speed by two times. Then the Seoul citizens, who would be a major clientele in this issue, can ask, “Why was the change not implemented initially, but after ten years on the free of charge system?” The answer is that the fare collection management has been upgraded recently at the aid of technological provision. This enabled to lower an installation expense, and could be afforded an equal distribution of public service. One problem is still unresolved that the identification system of auto license number has not been 100 percent–proven quality. Therefore, the follow-up measure and efforts are necessary to verify the capacity of current identification instruments. Other chores to trouble a perfect implementation of new system would be the post-travel collection attached on the HIGHPASS exception. In this case, the collection rate is less, so that the course of collection management needs to be tightened and strictly enforced. In terms of equity, the north and south division seems to incur a graver disparity. The above scenario only would pertain to the south division which the Korean Road and Highway Management (KRHM) is responsible for. As in cases, the equity in this Division may be improved. However, the north division, unlike the south, was launched in the responsibility of private enterprises, and the fare to travel has already doubled to the southern case. How do we evaluate this context of inequality between the north and south. The south division, as antedated to the North, was not privatized. However, due to the fiscal cliff, the north division took a different approach to increase the fare at 2.6 times higher. This disparity in the use of public service yields disgruntled clients and highly wavers the residents as depending on the financial problem. If the government is financially affordable, it could purchase the privatized section of highway, the north division. Then the problem may be lessened, but still pounding is it that it could not settle on the challenge of beneficiary’s rule. For the non-users, the inequity would be obvious about why the government appropriated the tax only for the class of highway users. Under the current status of issue, a most plausible alternative is that KRHM purchases the privatized north, but with some countervailing option 52 to complement a fiscal deficit. The precedent could say some that Korail once has the same fiscal dilemma, but that they could be aided by taking over the management of Inchon Airport Rails. The policy wisdom can solve to lower the fare of north (2013). One other issue in terms of equity and social justice is that some highways had been replete of their basis of collection since the construction and maintenance expense was already recovered. They, nonetheless, continue to collect the fare. This problem also leads to think about the inequity among a various nature of clients. Some may reside in the area where the highways have a long history. Others may live to be adjacent with the newly built highway cut or section. This inequity, in nature, could hardly be addressed that the citizens of Inchon have no way to share tolerating. Some policy discretion could diversify the operation by building an underground road on the free of charge system. It can diminish an excessive use on the on-land highway which is a culprit of squeezing traffic congestion. A mere delivery of policy for the free of charge reform could not cure effectively the overall dissatisfaction of Inchon clients. Any imposing factor to the traffic users would be from the congestion more than a little higher fare to travel. In any case, this section in the coverage from Seoul through Incheon would bear the same way of solution that the management responsibility should be clarified and transferred to Inchon city (2012). Between the Two types of Medical Service One other public issue to be related with the equity concern in Korea has been discussed in the National Assembly. Eon-ju Lee, a congress woman from The Public Health Committee in NA, raised an issue about the inequity of the National Health Insurance between the Western mode hospitals and Eastern Methodist clinics. Korea has two types of health service which is official. That differs from the US and other western states. Probably, this dual system, which is sustained from the public education, tax and public insurance program, and others, would often be practiced within the Oriental states on earth. Mrs. Lee cast her critical viewpoint, “the public health insurance needs to be designed on the basis of medicare demand, scientific basis of health service, as coupled with the patient’s financial burden. Any most important standard to weigh the various factors of policy issue would be an equity. The Eastern Methodist health service now achieved an international standard of health science, and the national demand has increased steadily. The public education to breed its professionals often had been included in many universities along with the western mode medical college. Nonetheless, it is unreasonable to discriminate the types of health service in terms of the national health insurance program. Mrs. Lee illustrated the statistical data by pointing to some grossly limited ambit of national insurance policy. In Dec. 2009, the Eastern Methodist physical treatment was incorporated as the policy item of NHIP. Afterwards in the next four years, it turned to be a stalemate without any addition of policy item. This stalemate would be get worse if the initial scope was found to be limited about three sub-strands of policy item, not all of scope we often denote with the meaning of “physical therapy” The total amount of subsidies from the government is as less as 24.4 million dollars in 2011, and 21.7 million dollars in 2010. This passive nature of number shows the government has been unresponsive to the emerging demand of nationals for this type of health care. According to the statistic bureau of government, the satisfaction rate of nationals from this type ranges at 55.9%, which indicates some higher than the western type. Given this, she saw no reason if the scope of physical 53 therapy was limited in the insurance purpose, which would be contrary with a comprehensive recognition for its counterpart. This flaw of system and an unequal treatment without the proper ground about classification would bring a discriminatory effect on the share of patrons within the health service. It also exhibits the harms to make a chilling effect against its universalization. The expansion of insurance scheme is now greatly demanded, according to her view, to increase the public incorporation of Eastern Methodist as well as equity among the different taste of nationals. Some Reflections on the Equity A promise of equity often is desired to restore the fundamental justice, hence, possesses a quality in subtle difference from the equality (2013). Most plainly, the common law system has two types of court division between the Court of Chancellor and ordinary court. The ordinary courts are responsible to administer a technical issue of law and often involve dealing with the issue as a matter of law. The whole concept of justice often can be graced from the Court of Chancellor as a matter of equity. The tradition of legal institution rooted in the equity court also could be found in the contemporary US laws, such as the specific performance, injunctive relief and so. The equity concept often requires a grand scale of wisdom, whose nature can be more salient in the public administration than in the administration of justice. For example, it appeals to the nature of humanity and social justice so that the jumble of difficult legal theories may be avoided. While the public administrators need to understand the law, the policy measure and its shaping would be creative to respond with the political and social challenges. This attribute can be seen as distinctive from the nature of judicial role. Across the two cases imposed now in Korea, the clients of public service and other parties involved would be impacted to incur a possible loss from the inequity. The nature of issues was posited in the economic justice and equal access to the provision of public service. As we see in the doctrine of commercial speech concerning the first amendment issue, the issue would be dealt less serious when we approach in the shoes of judicial business. Unlike the library case of disabled, it does not entail any intrinsic of humans. Then the library case would be more amenable to the logic and metaphor in equality as we often encounter in the case laws (Kranich, N., 2007). The highway fare and different treatment of two types of health services, on the other hand, may be looked into from the road of equity quest. There would be a lesser of accurate rules and any common law justice, rather the public administrators can tackle the issue vastly from his professional inner mind process, which would be evaluative, analytical, politically and economically sensible, and socially agreeable, and also comprehensive beyond a specific rule of law (Cooper, T.L, 2012). Through the Chevron, the court developed this aspect notably in the label of “judicial deference” about the administrative actions. An Equity Issue in Inchon Nam-Gu and Its Impact Inchon Nam-Gu is the prescient that functions on the independent statute ground and as a local government. Mr. Park served as a major of city, who is responsible as an ultimate decision maker about the permit and license to construct. He recently revoked a 54 construction permit around the time when the Muslim temple was virtually completed and foresaw to lay a cornerstone. As the completion embarked and it had been progressed under the construction permit, this sudden and unforeseeable drastic measure surprised the public. The people suspect if the measure is arbitrary and abusive as well as in violation of the universal rights, such as free exercise of and equality among different religions (Laureate Education Inc., 2013). The Inchon Nam-Gu Branch of Civil Association claimed a full disclosure of administrative dealings including a background, motives and reason to reach the revocation conclusion. According to the source of branch, “the decision was rendered that one section of parking lot was not furnished as legally required to meet the permit change from the educational to the religious facilities.” However, the decision was impermissibly drastic and in contradiction of equity or common concept of justice, which forecloses any cure and correction. Nam-Gu, in the progress of construction, has affirmed the change of design and purpose of construction, which incurs a problem of public distrust concerning the city administration. This concept has been affirmed by the court and in theory of administration law in Korea that the government is precluded from the action, decision, or disposition as contrary to the established trust from those of past dealings. A public excuse announced by Nam-Gu elicited that the terminal measure of this kind often is purported to sanction or invoked in the exercise of disciplinary authority. This case has gone in the same context. The Branch raised its tone of criticism that the public administration has to keep a neutral and balanced concept of diverse interest groups and public. It is required as a matter of administrative ethics and to ensure a responsible administration (Cooper, T.L., 2012). Absent this prudence in the score of public issues and resolution, it is, as a matter of course, deemed illegitimate, usurped of power, unethical and irresponsible, as well as arbitrary against the equity and justice (Laureate Education Inc., 2013; Kranich, N. , 2007; SEP Economics and Economic Justice, 2013). The Branch also elucidated that the Christian society petitioned with 50,000 signatures containing their resentment and opposition against the construction. This may work as a pressure and may present an implied and hostile circumstance leading ineluctably to reach this decision. Of course, the suspicion could well be based if this inequitable decision was to avoid a possible backlash from the Christian society. A political compromise in the coming election with a major religious group and as discriminatory of the minor one would factor this prejudice as well as the odd administrative decision. The Branch also heralded that the present decision would hardly be sustained. This is evidenced that the suit already was brought to the courtroom and the boycott of Asian Games is being considered seriously in reaction. It expressed gravely that the present decision would undermine a national honor in the international community in the face of Asian Games. Against the sprit and expectations from the Games, it may provoke a distrust or antipathy among the Asian countries. Finally, the Branch urged a reconsideration of this issue to restore the equity and free exercise of religion. An Equal treatment between the different religious group is expressly ordained in Korean constitution, and history lets us to make sacred and sensitive to correct. In any case, a narrow focus on one sphere only often may invite a contention, turfs, or public criticism. This means that the neglect on any one essence would pay a due price as we notice in many of public controversies. The case above introduced can be seen well in this context. Other point to merit our concern would be autonomous and self-serving tendencies of the large and bureaucratic structures. As Appleby suggests, when functioning properly the hierarchy is, the structure of responsibility would tell its axiomatic process of justice and equity (2012). That could, however, encounter a high chance of variance from 55 the challenges, the nature of complicacies in the agenda and issues, political wind, personal interests, and particularly moral mazes or callous routines. Other useful dualism in approaching an equity or ethical decision making would cover the deontological (duty- oriented) and teleological (consequentialist) dimension in philosophy, and could facilitate the difficult technical strands or requirements in more principled resolution. This way of thinking also serves much to address the challenge of equity issue in the workplace (2013; 2007). An ethics issue involved in this case is serious to impact on the Korean people and Nam-Gu officials as briefed above. As the officer of local government is paid in wage as less than the private employees, their sense of honor and personal conviction as a fiduciary trustee are any principal factor to pull their vigor of service. His or her self-esteem would be affected to discourage their followership. They suspect if the decision could comport with societal expectations of the nation (2012). The Asian Games will be some Korean favorite in the process of years on its preparation, public sharing of progress, occurrence of events, and through the aftermath in economic benefit to the locale and international prestige conducive to the success. They could even be frustrated from the neighbor’s criticism and ill ways of dealing to invite an international controversy. The leadership of mayor also can be derogated by the suspicious and disloyal attitude of officers. The local autonomy and its constitutional subscription in chapter had long been debated since the nation is small in the scale and function and on a congruent basis in view of ethnicity and national history. The opposing views perceived that the restructuring of national administration in a dual dimension would unnecessarily burden the national budget and may operate as contrary to a fiscal soundness. These views had been held throughout the decades of militaristic government in 1970’s and 1980’s, but the democratic passion of nation has, in a tough assumption, endorsed it as one of constitutional mandate in the late 1980’s. This foundation may well be vitiated at this incident in the mind of officers and Korean people in general that the mayor lost a strategically paramount side of his policy decision. The Muslim people, who resided in Korea also has a worse impression from this unanticipated overhauling of initial undertaking. As the right to free exercise of religion is universal in tenet and human rights framework, their disappointment would never be surprising. They consider gravely the contradiction of decision to the requirement of ethics that the responsible administration has to respect. In the substantive aspect of issue, it would be dubious if such minor point of violation could result in such serious consequence, say, a revocation of license continued in effect over the years. Hence the proportionality principle could be weighed in the negative force against the decision of mayor. Recommendations, Decision Making Model and Factors In applying the decision making model to the equity issue, I found it finer to rely on the four planes of deliberation model as reflected below (2012). (A) The conscious delimitation of commitment to an employing organization and the cultivation of identities that transcend its boundaries. A propensity and perception of mayor could be questioned to have a bias and narrowly focused to being misled by himself. He is an elected official who would calculate and plot on the public response and impact on the election. In this aspect, the decision can be compromised or even bribed with the majority religious group. He seems quite to be 56 dismantled to apprehend the nature and quality of issue. It seriously transgresses the normal standard of equity and justice element to prejudice the Muslim minority (2007). The conscious delimitation of commitment to en employing organization would be failed in coming into any reality and practical force to determine the issue. He seems to be overwhelmed by his personal interest of re-election. As a professional, he also seems to craft his own ways to cultivate the ethical identities, and neither on any continued practice with the design approach in shaping an ethical decision. Given a respect of this advice, the chances to render this type of ill decision would be inconceivable. (B) Legal and institutional protection for individual rights and conscience The local government operates under the constitutional structure and its mandate is a guide in hierarchy to be faithfully honored. It is also an ultimate factor often recommended to respect in face with the difficult and multifaceted ethical dilemma. The mayor’s decision seems to contravene this requirement so that it harms the equity and justice well assumed to be due for the Muslim minority. His personality can also be questioned if to cling to the reelection possibilities by attracting the majority voters, in this case, the Christian group in Nam-Gu. It obstructs a conscience often seen essential to be required of responsible administrators as a public fiduciary. Overcoming the conflict of interest might be pressing leading to the impermissible emphasis on a minor requirement of laws and regulation as well as the breach of principles (C) An ethic of awareness and cultivation of principled thinking. The mayor, as a responsible administrator, has to practice an ethic of awareness which cover a scope of elements, i.e., adequate knowledge, exposure to the general ways of approach and specifics in issues, organizational structure and culture, as well as societal expectations. Being more aware of the nature of issue and standing points of controversy, more ethical and practically efficient policy decision can be shaped and implemented. The issue, in this case, includes a sensitive policy area about the religion of minority in Korea, and also entails an aspect of diplomacy as well as the universal notion of human rights. The mayor should have to comprehend an enhanced level of the Korean culture in this light. Korea is a nation of international esteem due to its public virtue and culture. The selection as a host country of Asian Games plainly vindicates our international status in this respect. He failed to apprehend this aspect to disappoint the heat and passion of Asian countries from the commitment and trust by selling his responsibility to his political transaction or personal interest. As mentioned above, if he accepted the lesson and practiced a cultivation of principled thinking over the course of his professional career, the ways of dealings and outcome would develop in other ways. Recommendations and Factors in Implementation A solution to facilitate the correction of perceived evils in his final rendering of decision seems straightforward, say, revoking the decision of revocation of license and endorsing a completion of construction on the pertinent statutory basis, but upon a condition to fix the flaws of parking lot requirement. As the Christian people are a mass of their constituents, their support seems pivotal to administer a city politics and governance. Hence, the public forum could be planned to explain the course of development concerning the issue and obtain their recognition of legitimacy and propriety about the cure. 57 The factors operating in a contrary or facilitating influence may be explored if to pertain to the individual attributes, organizational structure and culture, as well as social expectations. The individual attributes of city mayor can factor in facilitating the cure and proper remedy to the public condemnation. The city mayor may be stubborn on his decision, and can think if he may bent to the public pressure (2012). However, the civil monitor group worked effectively to enable a full disclosure of the administrative process. The high chances would be that it also can facilitate the administrative cure to restore an equity value. Over the decades, particularly in the recent trend, the head of local government often has been arrogant and stresses the local autonomy in neglect of the national needs in uniformity. The governor of Kyung Nam Province showed a determined attitude against the call of National Assembly to make an appearance in the investigatory session. He actually went his own way to shut down a public project for the aged people in the claims about the fiscal deficit of local government. His testimony was deemed precious, but his logic and understanding was fairly entrenched that the any subpoena of NA would be repugnant to the separation of powers principle. He eventually sustained himself his views and NA took no action to escort him in the purpose to realize his presence in the session. This implies that the heads and directors of local government entertain a greater conviction as an elected official leading to a tension between the central and local governments. The social expectations in this case, however, come higher than other cases so that more chances would lie to favor the possibility of cure. In terms of organizational structure, the mayor is placed at the center of power to remedy his vulnerable action. He would be directly responsible to cure the revocation decision, but the practices often do not submit to that way of dealings. The local government often cherishes the stability of decision that most cases to be remedied would process in the judicial proceedings. As the nature of issue is highly sensitizing and touches on the core of Korean concerns, say, the international games and human rights, the organizational structure and culture may possess the quality of dual side of coins in view of limiting or facilitating my recommendation. Reflections As we learnt, we expect the public administrators would be ethicists to make a legally valid, effective and efficient decision to maximize its utility and happiness of organizational members and constituents. Their decision, hence, could be examined in the organizational strategy and planning to have an essential bearing with the imagery of organizational development specialists (2012). The case briefed above entails a miscalculation of policy sequence and actually created the gash that now, amid the public reaction as acid, hardly avoids the alternative to squelch on its basis. While the public administrator would be a juggler managing a multitude of competing obligations and interests, the case actually revealed a vicious aspect of unethical contemplation involving the political interest of mayor himself. Often we believe, as Michener commented, that he or she, as a responsible administrator, needs to pay a due respect to the real moral problems in the abstract where character is formed, hence, they may not be fragile to be a miscreant of policies and specific decisions of challenging nature (2012). This would require, over the course of professional development, of ethical identity beyond their title and status, and can appropriate the mechanism to reach the ethical decision as suggested by Cooper (2012). Four levels would foreground the process to deliberate on behalf of responsible administrators, what we staged in the inner mind process on evaluation or assessment. They would cover the expressive level, level of moral rules, ethical level and post ethical level. The level corresponds in dimension with the process espoused in the Cooper’s design 58 approach including the identification of issue, available options of ethical decision, and probable consequences, and so. The public administration often involves some share of leeway in the spectrum of public values and ethics as leading, lesser in extent, to any ineluctable conclusion. We often rather are susceptible of ample choices to deal, and often reach more like an aesthetic logic or gestalt in the end purpose to attract the citizenry (2012). The public administrators are postulated well in its practical role to respect the obligations to the citizenry and the organization established to serve the citizenry. The public employees would favor to develop a professional career and buy in, in many probabilities, the compensation in the monetary form or promotion, which their conduct or activities may lead to. They nonetheless can see a vignette well-rounded life outside the work. This well vindicates the thesis about the spectrum from the individual attributes through societal expectations. That often, as a tenet in the basics, coheres, and should do, but the issues or agenda may be complicated in a contradictory demand or in conflict of interests. As the policy issues, in this diverse society, are staged amok over the factors and interest groups, the admonition from Ralph Kilmann's to avoid “quick fixes” would help and they could base their dealings on the more practical and comprehensive context (2012). That said, it would project over the internal and external controls as general approaches and specific techniques. The responsible administrators would also be attached with a deep awareness and professional attitude to interplay with the individual attributes, organizational structure, organizational culture, and societal expectations. For example, we would know ourselves that an inherent tension exists between the individuals and the organizations where they are employed. On this point, we need to take an in-depth reflection about the possibility of individual ethical autonomy in the organizations. Then we may explore the useful suggestion about four elements so as to be responsible and in the ambit to produce a working ethics and interactive leadership; “(1) the conscious delimitation of commitment to an employing organization and the cultivation of identities that transcend its boundaries, (2) legal and institutional protection for individual rights and conscience, (3) an ethic of awareness, and (4) the cultivation of principled thinking” (2012). Reference Cooper, T.L. (2012). The Responsible Administrator, San Francisco. CA: Josey-Bass. Kranich, N. (2007). Equality and equity of access: What's the difference? Retrieved July 10, 2008 from the American Library Association Web site: http://www.ala.org/offices/oif/iftoolkits/toolkitrelatedlinks/equalityequity. doi: 388396 Laureate Education Inc., (2013). Ethics and Social Justice "Equality and Equity: Applications" with Amanda Baker (approximately 6 minutes) Stanford Encyclopedia of Philosophy: Economics and Economic Justice http://plato.stanford.edu/archives/sum2008/entries/economic-justice/ http://www.ala.org/offices/oif/iftoolkits/toolkitrelatedlinks/equalityequity http://plato.stanford.edu/archives/sum2008/entries/economic-justice/ 59 XI. On the Liberty The Disabled in South Korea The disabled in Korea perhaps like to ride on the public bus to go somewhere they wish to reach. The subway was not well exploited to suffice the details of specific destination. The public bus was most catalyzed to serve the travel needs of public in Korea, however, we often cannot find the disabled on the bus. The distance from a road to the bottom of bus normally is 98 centimeters (Kee-ryong, K, 2002; Graff, J., 1985). Even for the normal people on the inconvenient knees, riding onto the bus could be challenging. This would certainly exacerbate on the case of disabled. For the manufacturers in Korea, the disabled has long since not been assumed as the scope of passenger. They are treated in discrimination as same like the aged, pregnant woman, children, and the patient to suffer on his legs and knees. The developed countries, i.e., Japan, US and France, have earlier lowered the gap in 30 centimeters, and also provided an equipment to support the users of wheel chair (2002; 1985). Striking is it that Daewoo, a Korean auto manufacturing corporation, already produced this special bus in system, but its purchase has been made on the special order only to meet an occasion. For the improvement of environment, the public bus was mandated to use LNG. The road and traffic sign was neatly reformed to enhance the international events. However, the concerned people regret to find no policy or public support to provide for the disabled. A higher gap about 98 centimeters now frustrate the types of disabled which even include a brain damaged and deaf faced with the insufficient public signs. Particularly, the scene of hurried bus departure to leave the blind drastically often disappoints us. They would have no way but to ride the wheel chair lift which is highly vulnerable to risk his life. Their only way to reach his destination, however, is to use the subway loosely scattered and to undertake a long way to walk. The disabled has been described as a cursed creature in Greek myths. They are treated incompetent to labor and forced to be subject to a public charity or benevolence. They have to hang on his tough life through a deceased in time (1985). The Universal Declaration of Human Rights incorporated their status as a national, who became safeguarded from an infringement on his or her bodily autonomy or freedom. The Weimar constitution enacted in Germany in 1919 could pioneer a state commitment about the social welfare and provision of public program for the disabled. The MB administration of Korea in the past five years had been reluctant to expand the social welfare program and the ethos or passion of society often perceived the disabled as poor and as merely the class of social benevolence (Kee-ryong, K., 2002). Their status may not be elevated to a certain of right or personal interest so as to be protected by law. A previous point of financial burden or declaratory status of constitutional prescription also is not an exception for Korea. Nonetheless, it would be problematic if the Korean constitution lacks an express language to cover them in the ambit of constitutional policy (2002). This leads us to any contrast with the ways of Bonn constitution, which incorporated the class of disabled as one factor if to centralize on the pursuit of social justice. As the constitution is a ground law and often to be referred as a basic morality guideline of nation, this lacking pushed back the critically deprived class of people, namely disabled. A Free Mobility of Disabled and its Infringement 60 A free mobility of disabled in Korean society would be concerned of positive liberty since it does not require the absence of coercion from external factors. An approach to this societal issue rather mandates a public commitment to increase the freedom of person to move and travel. It presumes a certain provision of public aids and would underlie the concept of social justice. Rawls intuition, a “veil of ignorance,” may echo that we are responsible to address that entrenched inequality and their challenge to freely move. How much extent of inconvenience and frustration in the personhood of disabled perhaps would be immeasurable for well persons to sense and apprehend. It would entail both issues on equality and liberty. In the traditional concept of negative liberty or lassies faire liberalism, the problem could well be blinded to let it as is (SEP: 2013). The concept of positive liberty or functional focus on the societal virtue may have some strength to ground any of public measure. Rawlsian concept of social justice would consider a scope of factors, personal talents or competence, resources or wealth as distributed in comport with the first principle, the kind of liberty capitalized to found the basis of modern society, and others. The policy makers are assumed, in the power and competence to find an avenue to realize the social justice, and shape the proper and most effective policy instrument to bridge the first principle and social justice. The group would generally be considered to have surfaced in a more extent of legitimacy and democratic representation from the beginning of 20 th century. They may be posed a challenge by the libertarian circle of orthodoxy on the property right and absolute freedom to resources. As we see, what basis would entitle the owner and user of resources, then, provokes a serious contention around the abusive social welfare program. However, I suppose that an aid to the disabled would often fit within their ambit since they lodge a highest emphasis on the liberty interest. An issue of disabled presented above entails the nature of positive liberty since it triggers the target group to be “liberalized to certain thing,” as not in meaning “the liberty from something.” However, the shape of issue may differ in a subtle context although the argument of positive liberty in ways of approach would look into the internal factors on a true self (2013). This often implies that the agent would exercise a moral process in deciding to act or omit to act. Nonetheless, the issue of disabled on free mobility touches on the basic operation of bodily liberty, and concerns an intrinsic mishap in the distribution of resources. He or she is innately paralyzed to be disabled from movement. Some of them may acquire his unfortunate state from the industrial accident or war sacrifice. Factors to be Considered The profile of issue then develops into a complex equality by not being submissive to any simple notion of equality. In view of liberty, they share a common ground, however, as to be physically depraved to something. Their function to make him or herself as a social ego would be infringed to get incongruent and his personal liberty was critically abridged. The enhanced concept of liberty now requires that the principle cannot serve the whole of requirement if to merely let them to free in the absence of any external coercion. An enjoyment of certain condition to the decent human standard is often envisaged by the policy makers and explains for some of prevailing understanding of liberty discourse in the contemporary society. A liberty discussion also can be made to require the whole of picture if the agent actually does certain things in certain ways? The triadic way of approach involving the agent, purpose and constraints proposed by Christman may direct to be sucked into the topology of liberty assessment (2013). A constraint would constitute the key factors in 61 concern, and the absence of any kind of constraint whatsoever on the realization of one's true self could be a critical test to the desired state. It would also be corroborated by the simple standard as Green and Bousanquet encapsulated, say, “the absence of all factors that could prevent the action x” (2013). The modern views also put an emphasis on the comparative assessment to arrive at the sound stream of societal justice on liberty. Hence, as commented below, the US ways to deal with the issue would illustrate a desired state in protection of the disabled to assist with their physical handicap. A comparative view with the US institution could help to comprehend how the liberty or personal freedom of disabled in Korea was discriminated. It is obvious that they actually cannot do certain things in certain ways. The context of Korea involving the liberty of disabled would clearly fail on this criterion. The US has also experienced a challenge and public debate split in contention concerning the extent of pubic provision and ways to boost them. A first statute to deal with the issue of disabled perhaps would be the Urban Mass Transportation Act (UMTA). This Act includes a policy goal that the aged and disabled have the right to equal access to the public transportation. It also prescribed the mandate of federal government to exert a special care in designing and planning the facilities and program of transportation service. In 1975, the Federal Aid Highway Act was enacted, which purported to mobilize a federal grant or subsidies to facilitate the public transportation for the disabled. A most ambitious and powerful scheme was arranged in the statute, what is called the Rehabilitation Act Section 504 in 1973. This act enabled a scope of public measure by incorporating the duties and obligations of private business. We may consider the standard of liberty for the disabled may be evaluated in variances, which led to the different extent of welfare provision for them. However, it is deplorable that a very basic liberty for the disabled was not succinctly addressed in Korea. The Concepts of Liberty and Politics The liberty would be an epistemologically cumbersome in any hard way of definition, but a ground to be explored and contended seriously in view of human intrinsic, social desirables, morality argument as well as the political terms of society. The liberty, therefore, would be on a due course of dynamism which exposes some incompatible interpretations of a single political ideal. For example, the relationship between the liberty and political ideals or desired frame of political process would not see an agreement between Constant, Humboldt, Spencer, Mill and Rousseau, Hegel, Marx or T.H Green (SEP, 2013). They would probably conceive a same extent of importance or value attached to the liberty, but their vision on the political dealings to address a modern sovereign state would diverge. Often the liberty would constitute one of ultimate goals that any respective political community envisages, pursues, or in the least not to taint the essences enshrined in the value of liberty. That would not be negated by both liberal and communist framework of politics. And even the regime of monarchy could share the idea of liberal subjects in the comprehension of value and in shaping a moral structure of society. Hobbes may be perceived in this purview about his proposition of social contract. He played under the assumption of authoritative monarch as a justification of politics, but ideated the ground of individual liberty to a safe condition, interests of life and limb as well as his or her property. It is an irony that the absolute power and sovereign can shake hands with the liberty concept. Rousseau’s collective will would dispose another errand to respond with the emerging thoughts on enlightenment and political 62 freedom. His idea made the rising class exuberant to entertain the liberty, and enabled to lay the positive concept of liberty by participation and activism to constitute the public will. It could be echoed in a similar fashion as coupled with a labor idealism that the communist society would be paramount in championing a human morality and liberation of self. An emancipation of the rising class in reliance with the social contract principle could be developed in any refined manner by Locke in his treatise on civil government. Based on his bureaucratic career, he derived many strands of public governance, and has been considered as to proffer a lee way of new understating from inference and interpretation (Murphy, A., 1998). His theory would be realistic in practical dialectics about the value of civil society and loyal government to process their responsibility. He recourses the public power from the social contact and an eclectic bridge between the civil power and sovereign. His idea, however, will culminate to favor the former so that a Regicide would be legitimate if to be exercised in the end of preventing an intolerable tyranny. His ways of governmental process could be seen in the separation of powers principle, which was to merit two or four independent attributes and to include the power to legislate and execute or power to consolidate on the different states. Perhaps in order over Hobbes, Rousseau and Locke, the primal concept of modern politics could be classed in view of the extent of authoritarianism, but three version would converge to the ideal of individual liberty (1998). The Positive and Negative Liberty When we deal with the concept of liberty, a most popular way of approach may be found in Berlin’s classification between the negative and positive liberty (SEP, 2013). The negative liberty, in essence, requires the absence of obstacle, barriers, or constraints, hence neither coercion nor intervention from the external strands, such as institution, society, notably government and other forces or influences. Its implication would bring a serious consequence in terms of political rightness and foregrounds in vast extent the basics to constitute the political community. It, in the application, led to the virtue of minimal state and has been most contributive to an economic dimension in developing the modern prosperity of liberal capitalism. The tenet would also still be maintained in virtually no diminution about the practical dominance of metaphor and logic in the contemporary global market. As the concept is presaged, the nature would be on prongs to be related with a biological freedom, natural law ideas, the kind of Darwinian ways of apprehension, and economy. For example, the pursuit of commercial interest would, in some light, be perceived as insurmountable and hardly curbed toward the impractical accumulation of wealth or capital. It can grow indefinitely to stage at some terminal self contradiction according to the communist moral perspective. It is plainly self-evident that the negative liberty would be most favorable that the enterprises would embrace. Recently, the public controversy aggravated at the news paper report of tax heaven. A plethora of Korean superrich allegedly exploited an opportunity of lower tax with the unauthorized export of their wealth and in a hidden way to evade the higher tax duties in Korea. As a host country, Haiti or Virgin Island under the British rule, manages on a benevolent national tax schedule and the banks or intermediaries in trust or estate could conspire to serve their unlawful purpose. A tax issue also created a public resentment in the Boston tea party, hence offered a revolutionary moment to liberalize the colonial merchants or land class. The nature of plutocracy in use to denote an early colonial state is generally undisputed and, in some respect, a more embedded interest and spirit to guide the structure of 1789 federal constitution. The wealth and negative liberty would be a close peer to fit as being championed inviolable (Murphy, A., 1998). Other area in an 63 important interplay with the negative liberty would concern the freedom of personhood. An unlawful seizure and arrest would be in a primary focus when we deal with the concept. A prevention of torture and privacy right to bear a personal appearance can also be exemplary at matter of negative liberty. The militaristic government in 1970’s of Korea enacted the statute to regulate the length of hair whose type would be often patronized by the entertainers and popular artists. The authority of government had ample ways to freeze the pedestrians on the street and imposed a fine or several days of detention in the police station merely on the basis of his hair look. A comrade court of former Soviet Union and the criminal justice system in Great Britain would serve the public goal by imposing a public requirement by the light penalty, but if the negative liberty may not be ensured in a perfect extent. This kind of institution can convivially disclose the operation of negative liberty which would be simple, basic, universal, and through the ultimate of personhood. Interesting is that the criminal justice system in Great Britain would rely on the lay judges, whom we often call a knight and which disposes a petit crime involving the breach of public peace. It is a greater way to exercise the state cause in interacting with the traditional virtue, but may possess the quality to impose the kind of positive liberty in an authoritarian understanding of public or personal moral as in the case of 1970’s Korea. The positive liberty, as hinted, rather deals with the whole of person beyond the nature or personal autonomy. It would be more friendly with the belief of Creationist version where the origin of human being is from the God. The nature and quality of human being would be cast to entertain a self-mastery and self-realization or self-determination, and they would intervene to define the concept of positive liberty (SEP, 2013). In this purview, the internal factors to hinder a liberty could come into play that a psychology or individual morality compounds the argument to shape any true nature of liberty or freedom. While the negative liberty would be framed “the liberty from something”, the positive one foregrounds a dynamism as “the liberty to something.” Hence, it is an applied level of understanding to interplay with the system and political process. As in the Rousseau’s introduction, the agent is required to participate in the political process to ensure their liberty interests. As Marx delineated, the human ought to understand a false consciousness and materialistic injustice or fallacy to betray the nature of humanity. They often call their army as a “liberation might,” as in the case of Korean war, and the liberation theology may develop a similar way of thought on the contemporary society. However, their failure to see the pluralistic nature of humanity, as entirely hallucinated with the materialistic dynamics, would be questioned. A tenet and ethos of positive liberty now offers the conceptual ground to the paternalist or moralist state intervention, and intermediates the third way of European politics, for example, as Giddens suggested (Crocker, L.H., 1980). A most opposing promise of western politics against the paternalistic intervention would be the neo-liberalism espoused by Reagan and Thatcher, which was founded to restructure the flaws and inefficiencies of 20 th welfare paradigm. The examples of positive liberty would be omnipresent in the contemporary affluent society. A Special District of public education may enable their students to function positively by providing a free IPad to support their study and leisure time. The temporary unemployed people in Korea would be afforded a small amount of pension money to reproduce their quality and standard on any job vacancies (Laureate Education Inc., 2003). National pensions for the teachers and government officers can be settled for the decent standard of living upon the retirement age. We can see “the liberty to something,” say, a decent living after some statutory age in this case. Around these cases, we can note that the simple absence of external coercion would not suffice to bring the positive liberty (Crocker, L.H., 1980). Hence, the concept of positive liberty envisages an assumption about the divided self, which 64 hypothesizes a higher self and lower one. On this concept, we note that our empirical desires would be complicated to enhance the dimension of liberty, but the positive liberty may be criticized to neglect on the external factors or political ultimatum which often is determinative about the mode of our existence and interplay. In other review, the critiques pointed to the similarities by illustrating the moral nature of proposition as we encounter in the ascetics, stoics and Buddist sages (SEP, 2103). An unilateral emphasis of the positive liberty can also be misleading because it involves a ‘retreat into an inner citadel’ — a soul or a purely noumenal self (2013). It is noteworthy, however, that some modern thinkers capitalize on the personal growth as the essence of liberty, which could compromise the above dualism and in the illustration of plants. The Political Liberalism and Contemporary Debate on the Liberty A sphere between the liberty concept and political liberalism actually would pose some practical challenges, but unfortunately hardly be reconciled in any expressive framework. This context can be adduced in the perception of Christman that the society is composed of supposedly heteronomous individuals (2013). Absent any definite answer, it would serve to “remain as is,” which would comport with one tactics of oriental wisdom from Paduk (Oriental chess). However, merely non-interference would say little that the virtue of liberty presumes an enjoyment of certain conditions. We consider a most influential promise over the wake of western democracy as neo-Roman (Quentin Skinner) or Republican liberalism (Philip Pettit). It can bridge the concept of liberty and democratic governance on the tradition and inviolable virtue long upheld in the statecraft. The concept of human rights, separation of powers principle, deliberative feature of democratic dynamism, and philanthropic assumption on a fiduciary duty, trust, frugality and others, would ground its ways of recognition and thinking (Laureate Education Inc., 2003). It also substantiates the institutions to practice democracy, and hence interplays with the liberty interest on an individual. A political liberalism in the contemporary context can also be contended as we note in the shutdown of federal government and national crisis of default. The kind of skepticism, “is it any subservient to the increase of positive liberty of Americans,” may be captured in the face of tremendous debt. However, we also question if it would be acceptable to paralyze the federal government which is responsible to ensure the basic liberty of American citizen. A defense and police service may be affected or the national park may fail to ensure the liberty toward a decent living and pleasant environment. The Republican liberalism or neo-Roman would proffer the institutions to regulate the permissible ways to interact with an individual. In this point of concern, the ways that the desire is formed would be emphatic and the government would be expected as neutral about the content of freedom as in the illustration of Muslim women by Christman (SEP, 2013). The same idea could be found in the time, place and manner regulation concerning the First Amendment right. This implies that the content- based regulation on expression, in comparison with the content neutral, would be deemed more culpable and constitutionally suspicious subject to more chances of condemnation. Under the philanthropic ambit of liberty discourse, however, the educational exposure or cultural environment may affect even empirical desires, hence, the content of freedom, and a higher level or course of moral judgment. In other words, the internal factors would be created from his or her personal learning and experiences according to the view of Christman. Other strand entrenched in the Republican liberalism lies in non-domination and the kind of ultimate belief embedded on the positive correlative between the domination, 65 arbitrary power and threat to the liberty (2013). Hence it would be a virtue on their conviction to implore on the partisan switch of political power on a regular basis and to filibuster against the prevailing power in the Congress. In their wellness and conviction, the constraints on the political branch are always greater to secure the liberty interest. In their vision and tradition, the kind of Berlin’s fear about an infringement on the negative or positive liberty, mutas mutandis, the Chrysippus' understanding of self-determination, may be structurally eradicated since his fear would be cultivated by the fact that the political power may be liberal only on a whim. We generally consider that there is no distinctive use of two terms in the lay world and even in the academic or historical context, which are between the liberty and freedom. There could be a contingency to favor one word, but the definition to a different note can hardly be ordained nor occasioned. Hence the concept can share a same attribute and meaning to denote a certain state or human condition that the personal autonomy would be protected by the absence of coercion and their desire can be in comport with their moral standard to act for or forebear from something. The concept of freedom would be attractive to gear up toward a new discourse of liberty or freedom beyond the dualism and other classic controversy entrenched in the wake of history. Nowadays, the comprehension of liberty proposers or critique rather focuses on the overall aspect of human condition so that they detest to be exorbitant in the dealings of analytical philosophy. Hence, the comparative stance between the societies may be one of useful attitudes for them. They also suspect if the three variables or triadic views of “agent, constraints, and purposes” could still be powerful in taking account of the contemporary issues or dilemma involved in the liberty. Their concern may be driven in any more intense level to see whether the agent is “actually doing certain things in certain ways” (2013). For example, the people of China or North Korea may trouble with the liberty or freedom, and cannot be comprehended in any clarified way to assess their problem. Are they free on the popular use of internet or can they actually be free to express an opposing view or to critique the legitimacy of their regime? Are they actually residing within a decent housing from the minimum standard of human condition? This kind of overall and consequential ways to assess would be phenomenological and useful on the realistic ground. A merely different focus on variables or extension of them across the respective theory would be inefficient or mislead to the fallacy of concept. The concept of overall freedom would presume the absence of any kind of constraints whatsoever on the realization of one’s true self. In other words, the absence of all factors that could prevent the action x would be triggered, in the view of Green and Bousanquet, leading to the elimination of elementary confusion and convergence toward the whole of free or liberal person (2013). The Liberty and Freedom or Other Concept Despite this feeble use in distinction, the liberty and freedom may well be in contrast with the concept of license as Locke ascribed. He elicited that a license ill deserves the name of confinement which hedges us in only from bogs and precipices” (2013; Second Treatise, parags. 6 and 57). A liberty would often tackles the universal context of human condition and the state of personhood, which generally squelch the sectarian concern to any discriminatory effect. It would go otherwise if a license means the kind of authorization to qualify the sectarian liberty or freedom to do something. For example, any business license, driver’s, or professional license to practice their expertise would pertain to this scope of freedom. It may assume some of special factors to contravene the universal context of liberty or freedom on the general basis. The concept of license or charter and incorporation for the business http://en.wikipedia.org/wiki/Chrysippus http://en.wikipedia.org/wiki/Self-determination 66 corporate, later subsidized the capitalist economy and amenable to the national control in any uniform fashion and about the factors. It represents a part of human state, but can chill the scope of agent’s liberty. Therefore, it entails an attribute of positive liberty if to examine the internal factors in the purpose of analysis. It often is directed to the dimension to do something freely and intervene to coerce the unlicenced agent to forebear. Furthermore, the bar ethics and standard of practice, for example, often require to maintain a level of integrity and professional morality. Over the history, a dualism on the positive and negative liberty perhaps would impose a highest tension between the liberal and communist scheme of governance or polity. One point of contention underlies the exploitative nature of capitalist economy. In the occasion of bar license, I like to mention the context of working and compensation method on a hourly basis in the law firms. They are paid on the hours for which they are working. The law firms often operate on the basis of partnership agreement, and they liquidated on the fare share for each partner. As coupled with the hourly charge, the law firms, perhaps if they be a small firm, may offer the kind of model and prototype of work mode, to marginalize any extent of exploitation possibility. In the political approach of liberty, some may perceive that the work mode of such law firms, as in Mondrean or cooperatives, may mediate the extent of universal generalization concerning the liberty. Of course, the waged lawyers in the big scale law firm may not develop in this way. Nowadays nobody would suspect if the license to practice law would narrow the scope of liberty or the licensee deserves the name of confinement as a skilled machine on law. Therefore, the concept of liberty in this advanced civil society has pose an intertwined and compounded panorama to stream over the pluralistic dimension or sectors and society. 67 Reference Crocker, L.H. (1980). Positive Liberty: An Essay in Normative Political Philosophy (Melbourne International Philosophy Series), New York, NY: Springer. Graff, J. (1985). Adapting interiors and furnishings for the disabled, Madison, WI: University of Wisconsin—Extension. Kee-ryong, K. (2002). A Free Mobility of Disabled in Korea, The Citizenry and Lawyers. Seoul, ROK: Seoul Bar Association. Laureate Education Inc. (2003). Ethics and Social Justice "Human Rights: Applications" with Amanda Baker (approximately 8 minutes). Murphy, A. (1998). Reason, Reality, and Speculative Philosophy. Madison WI: University of Wisconsin Press (1996). Stanford Encyclopedia of Philosophy : Positive and Negative liberty, Retrieved as of Oct. 25 2013 from http://plato.stanford.edu/entries/rights-human/. http://plato.stanford.edu/entries/rights-human/ 68 XII. Liberty and Public Organizations The Assessment System of Court and KBO’s Policy The Korean Bar Association (KBA) and court as well as the prosecution offices are triadic branches to sustain the Korean legal system. The court is particularly placed to serve the administration of justice and assumes the role to protect the human rights. It functions and execute the judicial power as a constitutional organ. It is responsible to adjudicate on the cases and controversies, and redresses the grievances arising from a legal dispute. Korea has a dual supremacy in judicial terms between the Constitutional Court and ordinary courts. One of organizational policy to interact with the liberty interest of judge would be the assessment system for the tenure review. In order to attain an institutional goal for the fitness and character review of judges, the assessment system often is regarded indispensable. However, it could deviate, in practical effect, from the policy objective, but to obstruct the independence of judiciary and eclipse a full-fledge exercise of conscience, individual or professional conviction (Laureate Education Inc., 2013). Given the nature of meritocracy deeply rooted in the personnel affairs, it assists by advising on and informing a requisite assessment. Since it could be misused to exclude certain judges who are conscientious, but politically dissidents, it often would be raised as a public concern about the commitment of judicial independence. This would be same when we consider a budgetary subjectivity of Judiciary to the Executive. While the liberty of judges would arguably be lawfully restricted on his official duty, the term, liberty, could be apprehended in any organizational, not in a strict legal sense, or informal leeway to administer his personality. For example, some excessive pressure to use a decent word in the bar or to enforce a courteous conduct to serve the sovereigns in loyalty and public trust may bring a tiresome or inefficient outcome in the administration of justice (KBA, 2011). Most problematic is that the assessment system may undermine the professional integrity by forcing them to comply with in his promotion or retention wish. So his or her secular interest on the promotion and retention of office can distort his inner side of moral conviction or due way to be personally held. This personal preserve of mental and intellectual disposition or conviction would be a very strand on which the judicial organs are presumed on. Hence the infringement with a conscience or belief of judges would lead directly to unsettle the judicial independence. The liberty issue then approaches in the same structure about the conscientious objector or anti- war vigils. The court has managed long years the assessment system and graded judges who are to be referred to the tenure review. However, a dominantly conservative ethos and public monitor about the judicial independence or suspect on the system, its practical impact would often be minimal and an automatic renewal for another ten tenure years sees no difficulties for grant. The public attitude has improved to identify the pros and cons of system, and the concept of democratic servant-ship recently has been emphasized to secure a loyal and faithful quality of judges. Also the peer pressure to ensure a fair and democratic quality between the counsels and judges at bar would grow, and could be correlated with such popular attitude. These situational variables affected the culture and ethical paradigm of court judges, and KBA, since 2010, instituted a regular process, on the annual basis, to complement with the assessment system of Court. KBA launched a peer survey to collect the opinion about the judges on the list of tenure review during 8 days, from Jan. 6 through 17. KBA 69 announced its background to meet the end to cross-confirm the personnel powers of the Chief Justice (2011). It pointed to the potential flaws that CJ exercises a plenary power to grant the long years of tenure. This kind of institutional vulnerability actually factored to yield no case of renewal denial which makes the process autonomous and meaningless. Some unethical judges who are verbally abusive in bar communication or indecent to provoke a shame for the clients could not be filtered according to the public report of KBA. This undermined a public trust for the judiciary, and KBO claimed that it was the most objective, relevant, and competent agency to assess the judges. The peer survey was conducted to cover 153 judges on the list of 2011 tenure review (2011). Over 1017 attorneys at law participated which was starkly gross than a previous occasion. 79 judges were found to be defaulted for an entitlement of new tenure. 74 judges were rated superior and qualified for the renewal. The grounds to make up such an impeachment would be, in rank order, the authoritarian or charismatic attitude (45 votes), bias, prejudice, predisposition, and abusive verb or behavior (25 votes). The Liberty of Public Officers and Organizational Integrity In furtherance about the liberty and transgression of assessment policy, I may brief on the public fear or excessive attention on the ideological propensity of judges. Korea is a divided country on this very reason between the leftists and right wing. Often we see it desirable that the court would be composed of diverse judges to represent a social philosophy. This context was seriously suppressed not by the governmental intervention but by such enthusiastic Right Civil Association in Korea (Chosun.Com, 2011). They often would be veterans, middle class of conservative ethos, and those who have a family background to detest North Korea. This created the social circumstances, which may be received as the kind of societal expectations for judges as in the Cooper’s components on responsible conduct (Cooper, C.T., 2011). Hence, they could be affected, and his personal interest on the promotion or retention of public office, in combination with the assessment system, may facilitate the inner process to convert his conscience to a prevailing ethos. This not only abridges the liberty of judges, but also could adversely touch on the core theme of judicial independence and social diversity. The internet portal of Chosun, often viewed as a most strong Korean conservative, hints on this point, “It is a constitutional mandate that judges are amenable to the tenure review for every ten years, who will not be dismissed from the office, but only on the causes exclusively of impeachment from the Congress and criminal conviction leveled above a confinement penalty. The Court Administration of Korea has not been practical to play a minimal role with the perfunctory apparatus of assessment system and tenure review. The tenure system was introduced in 1988, but only five judges during 25 years were denied a tenure” (2011). This quote was complemented by other conservatives so that they perceived this phenomenon serious about the rise of leftism adhering judges. Their tone and criticism has been acid that this lack of proper institution or flawed policy implementation would lead the Republic to collapse. They also expressed a concern of fear if the leftist judges could influence to shape the policy of Supreme or Constitutional Court. Now the public criticism surges to deprave the last election about the political intervention and unfair context of election campaign. It poses serious challenges for the president, ruling party and conservative group that the allegedly leftist circle now are legalized to plan a massive candle vigil in the public place. In their view, the Constitutional Court, in a last case dealing with the US imported mad cows, deplorably has dispatched a generous policy about 70 the right to assembly and demonstration in the public street. In their version, this outcome, of course, would show a weird network with the leftist powers in the judiciary (2011). The threat or evil from the assessment system and KBA’s policy could be illustrated convivially in the case of Kee-ho Seo, who was a middle age judge and alleged to uphold the virtue of leftist ideals. He also has been notorious to lead an e-critique on the court leadership and prevailing judicial policies. He was a recent judge to be dismissed on the ethical ground. His accusation was examined based on the assessment system, but the grades were found to be assigned as misled by the subjective stance of his higher authority. Objectively, the amount of caseload and the rate to dispose or complete would range above the middle of whole judges. He later exploited another career as a congressman, and now is incumbent to impanel within the Government Audit and Hearing Session in 2013. The Benefit of System/Policy and Their Prospect In any way, the assessment system and KBA’s policy likely would sustain ahead in view of its fundamental role about the personnel affairs, quality and character of judges and democratic practice in the consort with KBA. Seung-tae Yang was appointed as a Chief Justice of Korea on Jan. 18, 2011. The nominee was roiled into an interview of public media, and made a brief comment, “most capable judges would be the ones who deserve the public trust.” In broach to this comment, he adverted, “the public trust should be more hardly achieved other than legal research or knowledge.” In his view, the judgment has to be tempered and consonant with the common sense of justice and shared apprehension (Laureate Education Inc., 2013). This would be any authentic role of judiciary so that the clients could be persuaded. In Korea and perhaps universally, a miscarriage of finding the facts or implausible criminal sentence often would be the point of contention and dissuasion. The parties and his counsel would be a most knowledgeable person about the case. The counsels are qualified as a matter of law to represent the party and could share a common step on the progress of litigation. He would be virtually same to the party in the disposition and sensibility about the case. Hence, to obtain his respect and sharing would be really imploring. In this light, KBA’s policy to factor the assessment system could complement its flaws, which is a statutory mandate and overly indispensable (KBA, 2011). Some of court critique perceives it improper since it is odd for the players to evaluate an umpire. The Supreme Court still is reluctant to use the survey result as any definite variables in managing the official assessment system. As said, however, it seems most plausible and convincing to recourse the counsels, a direct peer of court judges, in assessing their quality, integrity, and personality or propensity. It directly is connected to build in the public trust. This policy may be expanded to cover the prosecution offices in Korea. As for its organizational nature of quasi- judiciary, the public trust is urged as a pivotal value than any other governmental branch. This actually underlies in an organizational concept that the key leaders of organization often reiterated to implant its ultimatum. Unfortunately, its genuine implications and moral requirement have been neglected. Now the people are suspicious if KPO were to be committed seriously to improve its poor image on public trust. A meaningful change has been noted recently so that now a large number of criminal cases on a statutory complaint basis are litigated with the counsels being appointed. This phenomenon would be in the sharp contrast than in past ten years. Counsels could be an agent to be fully aware of the client’s satisfaction. They could be more usable to ground the genuine basis of assessment than the previous system, mere a KPO survey of clients. 71 Reference Chosun.Com (2011).Judges and Korean Society. Seoul, South Korea. Cooper, C.T. (2011). The Responsible Administrator, San Francisco, CA: Josey Bass. KBA (2011).Internet Newspaper of Lawyer. Seoul, South Korea. Laureate Education Inc. (2013). Ethics and Social Justice"Liberty: Applications" with Amanda Baker (approximately 7 minutes). 72 XIII. The Organizational Culture, Policy and Ethics The Society and General Aspect of Organizational Culture An ethics and responsible administration now draw any more popular attention in history. There is a scope of variables to bring this context of societal phenomenon. First, the public monitor and pressure activities have become increasingly active and flourishing to advocate the democratic process of politics. As the theme of democratic government deepens and becomes well settled, the bureaucrats turn to be assumed and required to be loyal with the servant-ship to the sovereign people. It can be traced back to early years of new Republic so that Andrew Jackson defines their peer or political group as common men (Cooper, C.T. , 2012). The prevailing view in earlier politics, as we can note, may well be a spoils of victory to staff and administer their governance. This tradition may still wedge in the presidential system, but the cleavage, in another dimension, can be ascertained. An ethics as a fiduciary servant and the imagery of loyal public administrators would be highlighted in the more systemic way in the proposition of Max Weber. Around the industrialization turbulence, he perceived the importance of social factors to sustain a right direction of capitalistic growth in the western society. The continental morality and new frontier of material advancement were engrafted to inculcate the due course of social evolution rooted in the western tradition. Hence, his requirements in ethics and morality about the honorable bureaucrats are practically plausible to account for a realistic exposure and value guides to vitalize on the capitalistic system of statecraft. The press and public media also may interplay to ensure the Weberian virtue by imposing a criticism and monitoring activities. The advancement of e-technology and revolutionary impact of social media or other communication culture also contributes to the increased public attention on the ethics of public employees. A civilian recourse has developed into the “hands and palpable breaths” of the political or social elites in pursuit of social justice and procuring their loyalty. The ruling elites now are circumscribed in any distinct environment of disclosure and strains. Once seen as mere a gossip, the social culture may no longer tolerate an ethical or insensible public decision making with the readily organized force of civil group. A democratic apparatus on the liberal concept of constitution also increases its profile and scope, for example, recognition of the right to know as one of fundamental rights. It is to be noted, however, that there are differences, according to Cooper, in a practical effect among the public tools, such as the code of ethics or law and public media (2012). Second, the public administration itself has been on the trajectory to fortify its discipline as a science with the assistance of modern psychology and sociology. A theme concerning the act of ethical management began to feature in an increasing profile since Bowman published the article titled “the ethical issue for the public manager.” Don Menzel developed this concern by imploring on the systemized and consistent effort to promote ethical organizations (2012). The ethics and responsible administration often would be impacted by several institutions in the combined force including law, history and organizational mission. This would generate a certain of organizational culture in which we derive the essential factors in coverage of normative structures, referent others, obedience to authority, and responsibility for consequences. As I refrain from first person in academic writing. adverted, the society witnesses the changing circumstances in fashion to recourse their public avenue of sovereign role. This larger environment may lead to a new shape of factors. For example, obedience to authority, in some cases, may shift that the civil monitor group could be more pressing and be viewed as the kind of authority to compromise. A 73 responsibility for consequences, in some cases, may be upstaged as deviated from the responsibility chain of line authority. For example, a Congressman in Korea may fear from the public opinion more than the Congressional Ethics Committee and its guidelines. Turning to the discipline, it is highly advisable to ensure the integrity and continued ethical practice that the ethical decision makers plan on and design a scientific model, as the Cooper’s model illustrates, and prevents a self- serving attitude of bureaucrats and public administrators (2012). Other useful framework would be the Person-situation Interactionist Model developed by Trevino (2012). According to that model, public employees may process on the stages beginning with the ethical dilemma, cognitive stage and through the ethical or unethical behavior. The model identified four scores of influence to reach an ethical decision, which incorporates the individual attributes, immediate job context, organizational culture and characteristics of work. It also elicited subelements with respect to each dimension. For example, the individual attributes are determined by assessing the field dependence, ego strength, and locus of control. The Organizational Culture and Organizational Policy Making As sketched, the organizational culture would presume a general ambit through the specifics of organization. It is a societal creature to be rooted in the history, tradition, moral and ethical virtues to be implanted in the bureaucracy and organizations. The changing circumstances on an increasing intensity or compression of society as brought by the technological development as well as popular control along with the increasing power of public media, all accounts for the new shape of organizational culture. The issue of whistleblower, its moral basis and argument, as well as its protection as a public policy plainly proves the upstaged or societal context of organizational culture. In light of the specifics of organization, we need to note the importance of scientific contribution leading to the understanding of ethical or unethical behaviors as well as policies. For example, the Lucifer effect can elucidate the individual character traits and organizational culture as well as other situational variables (2012). The Trevino’s model also employs the organizational culture in four elements as an important variable which brings an ethical behavior or policy making. In this way of thinking, we may infer two dimensions of focus and in the primacy of attention which are elaborated by Finer and Friedrich (2012). Finer emphasized the role of external controls so that the law and code of ethics must be ensured in proper terms and in the nature to control the organizational members to adhere with their ethical requirement. Friedrich rather stressed on the practical importance of internal factors enshrined in individuals. Hence the ethical policy making or behavior would hardly be achievable without any genuine submissiveness to the ethically required way of behavior or conduct. His view, therefore, shed an intense weight on the learning and developmental program for the policy makers or administrators. Remember paragraphing is important to separate points. Otherwise, the reader does not know when a point begins and one ends. If the elements cherished by both camps are not mutually exclusive, they often become concrete in one concept of organizational culture by way of law, history, mission as well as a basic tone of the civilized understanding of public organizations. Of course, the organizational culture may be taken distinctively due to its nature and quality. For example, the Finer’s qualm may have a nuance between the legislative assembly and normal bureaucratic structure (2012). The latter may be more meddling on discretion to favor doubt while an ethical pattern of the latter case often likes to clarify the course of ethical 74 deliberation in the face of public monitor. Hence, the former case would be more amenable to the Weberian concept about limiting a discretion in ways to prevent the civil servant’s remonstrances and to place them in order. In the standing point of view, if the organizational culture needs to be examined from ethical policies, the critical inquiry would be if the organization now operates in the symptom of nonfeasance, malfeasance, and overfeasnace (2012). The Korean Judiciary, Organizational Culture and KBA’s Policy For the purpose of illustration, I consider a recent public focus on the courtesy and ethical behavior of judges, public prosecutors and counsels in the court proceeding. The area of ethics often stems from the professional code of conduct, but, in some cases, related with the criminal response on the contempt of court. They share an enhanced level of covenant as if they fall within the notion of New Adminsitration Movement, so that the smacks of professional eliticism and the concept of “client other than citizens” may apply to explain their status (Cooper, C.T., 2012). The virtues prevailed in the Movement, such as courage, commitment to human values and integrity espoused by E. Dvorin and R. Simmons, could also be the point of sanctity to be respected in the Korean case while some technical standard and specifics will combine to effect in producing an acceptable course of ethical behavior (2012). While the civil power has traveled over the sectors of society in enhancing a compliance with the democratic ethics, the Korean Bar Association erected an assessment policy of judges about their attitude and manner in the courtroom (Camp, J.C.V., 2005; Phillips, F., 2004). The assessment report was regularly disclosed to the public attention that poorly graded judges may suffer a disadvantage in the promotion and decision-making of personnel matter. In the last years, one judge committed a verbal abuse to the party by stating an indecent word. He allegedly affronted an aged party in the civil dispute, who was incompetent to delay the court schedule and had a less sense to present his case, by saying, “If a man turns to be aged, it might be better to die.” One other case involves a similar misconduct so that a presiding judge in the divorce proceeding libeled, “you would get awakened to see your spouse in the same bed with other males.” There are many other examples revealing an abusive or indecent communication with the parties. It seriously disparages the human esteem of client who, in this case, would be the party on the ride of civil service about any justice administration. The organizational culture of Korean judiciary, as in many other foreign examples, has long been distinctive on the dominant flavor of conservative ethos (2005; 2004). The judges would often be respected as honorable, and the ethics are often required of the citizen, or clients to maintain his honor over the court proceeding. The Japanese imperial rule, in early of 19th century, impacted profoundly on the organizational culture of court. That exposes a court scene that the judges look a kind of authority or charisma with the robe dressed up. His statement would be authoritative to direct, command and reprimand the parties and audience. The spirit of public service massively retreats as focused on the requirement of authority and respect of law. A liberty interest often safeguarded to ensure a human dignity, an ultimate destination for all purposes of national constitution and enacted in the Art. 10 of Korean constitution, was directly or indirectly affected (Laureate Education Inc., 2013). For example, an indicted suspect may be suppressed by a possibly overwhelming conduct or words which divert them from fully exploiting a due chance to defend his case. The judges in Korea, in some cases, may carry a wrong form of short court opinion that fails to fully disclose the points of contention and court opinion on the respective issue. This ethical failure, as reported in the 75 last news paper story, may jeopardize the context of party’s right to appeal and the client’s satisfaction (Camp, J.C.V., 2005; Phillips, F., 2004). While there is a separate view about the liberty or human rights viewpoint, the public employees often are conceived as a special group and fall outside the scope of protection. For example, it would be answered in a limited scope of recognition if the government employees enjoy the freedom of expression. The judges and prosecution officers would also be deemed as a natural person entitled to the scope of constitutional protection. The new policy from KBA may infringe upon the liberty interests of judges, but the prevailing view would likely be reluctant to shed on that strand in this case. Some Solutions for the Ethics of Judges Assuming that the Cooper’s decision model is to be exploited in phases and specifics of this illustration, I now could comment on some of the ethical standard as a solution for the concerned parties (Cooper, C.T., 2012). First, the courtesy of “bowing and saying hello” needs to be revisited. The counsels to travel a corridor or courtroom had been usual to nod their head in ways to pay a recognition and respect. This courtesy seems still practiced in the local district, but the buzzing environment of Seoul may have changed on the practice. Now only a small number of attorneys in Seoul follow this routine way to elevate the professional integrity and sharing. This change of personal ethics may be due to the increasing number of new entrants to the profession. The number tripled in the past decade. The lesson from the American scene may be practical where a predicate “Your Honor” is held uniform to refer to the judge. This ethics can increase the public respect and trust in the end of strengthening the rule of law concept. Second, the examination or cross-examination procedure requires the counsels to comply with an impartial, speedy and decent process purported by the law and professional ethics. It needs to be discouraged or banned to disparage the integrity of prosecution authorities which is impertinent to the facts or profile of cases. Often counsels may complain in informal ways to tarnish the prosecution decision as irrational or attack an ill aspect of criminal practices. It entails a serious deviation if the accusation involves an imprecise or wrong fact. For another, it needs to be avoided to intervene in the process of examination or cross-examination. It would be ethical to wait for its completion of prior interrogatory and proceed to his case. An attitude to examine the witnesses also needs to be put to improvement and correction. It is unethical and contradicts to the covenant of democratic rule if the counsels behave in the authoritative or indecent manner. Often an oral statement not taken care of can affront and insult the witnesses. Other ill aspect may be perceptive on the technical standard so that opinion-seeking inquiry or questions about the immoral character of witness would be improper and in violation of the ethical codes. Third, the court judges need to be modest and common so that they never behave pretending to be potent or mightier to teach the counsels. This point would be emphatic about the removal of counsel’s grievance. They are common peers to administer the justice in collaboration and cooperation. Now the judges are no longer the class of public nobility. He or she, as a public administrator, needs to find his standard of conduct and workplace ethics from the virtues of American public administration, say, equality, freedom, beneficence, respect for individuals, popular sovereignty, and justice. This does not mean that the principal role of judges to shape an issue and marshal the points in contention could be derogated or disobeyed by the counsels. A bias or arrogance of judges as if in the step of prosecutor’s case and to squeeze the counsels in his ways or understanding would be problematic, especially in 76 the criminal proceedings. In some cases, it brings the consequence to break the fundamental assumption of party system by exceeding from the scope of indictment statement or prosecution’s claims. Reference Camp, J.C.V. (2005). Ethical Issues in the Courts: A Companion to Philosophical Ethics. New Tech Park, Singapore: Cengage Learning Cooper, C.T. (2011). The Responsible Administrator. San Fransico, CA: Josey Bass. Laureate Education Inc. (2013). Ethics and Social Justice "Liberty: Applications" with Amanda Baker (approximately 7 minutes). Phillips, F. (2004). Ethics of the Legal Profession Portland OR : Routledge-Cavendish. 77 XIV. On the Nature of Social Justice Issue Poverty and Homelessness in 1998’s South Korea Around the end of 1990’s, Korea had undergone a serious financial crisis, and the IMF role only could settle the unsavory condition of national economy. In these years, the poverty class in a ghetto, often unemployed and homeless, had posed the challenges to justice and deserved a social attention. As learned on Frederickson, a poverty also emerged to shift the traditional paradigm of public policy which concerns the race, gender and ethnicity in US (Frederickson, G., 2005). Its extent has gotten worse that the assumption for these elements to imply a poverty would be made inadequate in the face of a rising threat to the social justice in US. A social stratification now rolls back to call a more engaged attention beyond the narrative of diversity or multiculturalism. If the nature of social issue has a profile on the universal element of humanity, it would be a matter of our attitude or disposition rather than any evolution or progress in the time sequence. I mean if the kind of Maya or Inca civilization or others beyond the level of contemporary one, could flourish or perish in mystery, but could be plausible. As in a science film, we may have unknown a superior alien civilization in any other time, but may hardly be recovered into a reality for other reasons. The poverty issue may have been quite that of improved form in 1950’s than the current status. This area of public policy may bear such kind of irony that the attention or maintenance to mend in continuance as well as on constant watch to respond with would be necessary. The kind of apprehension, “the poverty in the past on this level, economic status and social welfare on progress over time, and the present status of poverty issue would be easy,” should not entertain as any convincing ways of thinking. As the concept of justice expounded in the Republic by Plato, the poverty may pose a serious challenge to the ruler and ethical administrator (SEP: Justice As a Virtue, 2013). It is related with the basic standard of humans, and very sensitive as sufficient to question the social justice, ethics, as well as legitimacy of polity. It has a root over the history as we can find a plethora of authority, i.e., the pleasure of moral person or ruler in Plato and Cicero, pleasure and the greatest happiness for the greatest number of people in Bentham’s case, a refined persuasion in German rationalism and Weberian ways of bureaucratic ethics, Rawl’s concept of justice, and even the functional equality or positive liberty circle for the social justice in most modern thinkers (SEP: Distributive Justice, 2013). In this line of thought, I may derive some of implications. First, the issue of social justice would be omnipresent across the polities both in time and geographic distribution. That is because the issue would be interwoven with the universal or human intrinsic and attribute. It could be conceptually shared in any common concern, and may not be submissive to any time rationale. The elapse of time and economic progress never absolutely mean an improvement of poverty in view of the social justice. Second, this aspect alerts the public administers, who are required to be courageous and vigilant to realize the social equity and justice. Now the system is not static which is unlike the aristocracy. As said, roundreasoning has been embedded to ground the human cause for social equity (Frederickson, G., 2005). W. Wilson’ stated, “it is harder to run a constitution than to invent it” (2005). As an implementation is urgent than policy making, it needs an extent of positive engagement. For example, the employers are to improve the hiring practices, which means even to touch on the human resource than mere implementation of social equity program, project and policy (2005). 78 The Status, Threat to Justice, and Factors to Address Poverty may well be conceived as a worst factor leading to the social injustice. It poses a fundamental threat to the justice of society. The poverty class would be often deprived of adequate public education, and the status could persist over the generations. They may economically suffer below the minimum standard of human subsistence. Their social and economic reproduction may be threatened that they often lack a due provision to function as a laborer. They may suffer in the street since they have no shelter, which contravenes a basic right to a decent housing in the commitment of UDHR. We may have a due kind of reference that UDHR would prescribe a standard on the current status of social justice. It is obvious that virtually no human can have a pleasure to face with the reality of homeless. How do we have a pleasant sleep if we have been disposed palpably on their case? The rulers and public administration would be responsible as we learn on the ethics, public value and other sources of moral administration (2005). In Korea, the unemployment rate has sharply increased in the first and third quarter of 1998, 5.7 percents, 6.8 percents, and 7.3 percents respectively (KBA, 1998). The so-called IMF crisis began in 1997, and the firms or enterprises executed massive layoffs in the initiative of rationalization of their business. According to the statistics of Labor Department, the Poor Household Loans for the unemployed sharply increased from 65.5 million dollars per month through 113.2 and 117.3 million at the end of year. This data implies that the unemployed began to exploit the governmental loans to subsidize their living. In other words, the subsidies and pension alimony could no longer support completely to meet their basic needs. The Labor Welfare Foundation also managed a public program about the unemployment loans, but the terms and conditions were tougher to frustrate many unemployed workers (1998). It was ambitious to rehabilitate all scope of unemployed workers, but the loans actually was provided only for eight cases during eight days in the year. This program has envisaged drawing the funds by marketing the unemployment settlement securities, but the goal proved impractical by selling only 12.8 percents of securities in the stock market. It affected an initial plan so that it was reduced seriously and viewed as one of critical policy failure. The government initially shaped the plan to create 270,000 jobs by inputting 544.4 million dollars, but the unexpected growth of unemployed required an additional allocation of funds in the same (1998). A public project committed to the increase of employment purported to ensure a basic right to subsist as well as create the jobs. The factors to be considered would be a marginalized pay, which would be a principal driver for the 3D (to avoid the dirty, dangerous and difficult jobs) vogue in the society. One other point in consideration is to frame an adequate policy vision and its operation in an interplay with the public aids and social welfare program, which were intended for an ineligible person from the unemployment insurance ambit. It is critical to systemize an institution to clarify whether or not the public project on labor, in its quality, is social welfare or labor based. The factors to be taken care of would be that the issue is familial as well as personal. Hence, the policy makers need to shed a light on the starved students in the school. Therefore, it could be timely to provide a free lunch from the next year, 1999 and could be afforded in the vacations. One difficulties lie in the status of schools about the availability of space and other practical strands, which troubled the uniform fashion of administration. The context of 1998’s Korea exhibited a serious injustice between the cause-arouser and victims of society. Many critiques 79 were conceived that the management and capitalist class could be culpable to bring the anomaly of national economy. However, the economic and social benefit for the Chaeboland haves inclined to expand while the lower income class was stigmatized to suffer. They were often deprived of a due status in the employment relations and could be dismissed without any due respect and at the will of employers. The distributive justice may well be seen seriously depraved by the dip between the haves and have-nots. The social injustice henceforth would come into any serious context. It then fell within the responsibility of public administration beyond the private sphere. Unless they were responded with adequately, they would get worse to a homeless status and the crime rate for economic reasons would likely double (Frederickson, G., 2005). A disorganization of family could frequent and harms on its value would be challenging. The foundation of society would be put into a jeopardy. Concerning the homeless issue in Korea, we consider two classes of homeless people between the long-settled vagabonds and dismissed employees in the close years of economic decline. As the latter class often are similar so as to falter from the social alienation, members of disorganized family, marginalized economic status, the classification would less powerfully serve the policy response. With respect to the national attributes of homeless issue, the temporal response to provide a labor opportunity or free meals are not seasonal to attain a more effective outcome. A major portion of homeless in Korea are the fifties in an age range, and the success of British case could give us a lesson. The practice to afford the social safety network in the United Kingdom would yield a best result than any other alternatives, which led to a drastic contrast of 1-2 percents in the age range of fifties. Hence, a systemic provision leading them to rehabilitate as well as the housing welfare program would be seriously explored in the forefront of decades (Frederickson, G., 2008). The Concept of Justice and Social Equity Justice and social equity often arose to be public ideals that the respective branches of government pursue and undertake to struggle through their professional lives. Two dimensions in structure or in the least some of hypothesis other than this preserve would be a politics and civil capitalism. The politics or political science would concentrate on the power, structure of government, political process as well as the virtues or criticism that the specific or universal context of political community need to be addressed or contended. In view of the rule of law or public administration, they would rather be akin to the creation of laws than implementation of them. The views of W. Wilson elicited appealingly, “it must be harder to run a constitution than to create it” (Frederickson, G., 2005). The ideals could be shared by both minds. However, the political scientists often would travel in any philosophical relativism so as to be submissive to the interest of their core theme, say, the political power. It often proves in a convincing force and tack of experiences that the public administrators, including the judges or lawmakers, particularly incumbents or those of majority parties, would be armed with the concepts and practice through their course of responsibility. Given a justice is received in the sort of social quality, the two concepts would be related in any same tone, logic or metaphor leading the ethics of public administrator (Frederickson, G., 2008). Both concepts have projected into the western intelligence as a persistent and enduring guide to practice the ethics of rulers which would hardly be traced nor supervened by other ideals. Monarchs, oriental or western notwithstanding, often recourse their daily business of politics in this way, and stressed the sublime status of justice or social equity although they might be more eagerly disposed to expand their terrain or threat to his might or 80 political power. The socialist states had been notable to cherish this logic, which would go farthest to entirely revolutionize the traditional virtue of Christianity or prevailing thought of Republicanism. The concepts have been embedded on the very notion of human disposition as we have been illustrated in the Cicero’s subscription to justice in fundament of his ruling philosophy. In the ancient times, justice may converge to the same destination between the ruler, who often would be one person and as discarding a check from the Senate, and political community. The ruler’s justice also would be a social one. The context would transform if the public governance began to practice on the free election, equal vote, and representative democracy. The deliberative nature of democratic tradition may negotiate to bridge the kind of conscience, justice, equity, often being ascribed to the absolute figure only, with the science, due process, as well as the traditional virtue of western society. Therefore, the two concepts would not differ, but come congruent to serve the realities of public governance, the ruling and ruled, ethics and community, and in compliance with the pleasure of ruler or that of citizenry as its equivalent in modern terms (Meyer, M., 2008). It could be antithetic to the general thesis of liberalism if to speak for the absolutism of pure market, and could be mediated in a lesser force if some stress the institution of free market as in Hayek and ground laws to support the system. As the laws become complicated in the public pressure and political voice, the social legislation would be coupled to impose an implementation of social equity. Hence, the public administrators in the contemporary society need to meet a dual challenge to address, which could be granted in any inviolable context and in ultimatum. Threats to Justice and Social Equity: Less Courageous In this structure, we derive two strands that they are shaped. First, as Frederickson mentioned, the public administration put any more strains and emphasis on the implementation of policy rather than the creation of them (Frederickson, G., 2005). Of course, they may develop their career later as a law maker or could serve more effectively. However, the policy implementation or the concept of law in action would be unique to be exclusively reserved for the group. His argument on the poverty and increasing inequality between the haves and have-nots are imminent for the public administrators to respond with (2005). His message is straightforward and reflexive since the antigovernmentalism is largely impractical at this point of time. His attribution about the basic propensity of American citizen, as philosophical conservatives and pragmatic liberals, seems to be generally universal in my surmise of global public (2005). Of course, still in contention can it be argued in the first prong, hence, we may go to ask what we like to conserve or make it inviolable. In any notable interplay or in general complacency about the demise of ideology, that question would often be dealt in a secondary profile or impossible to be resolved in any mutual agreements. Then the second prong would be operable to impose a duty or moral leadership to be subservient about. In this backdrop, the justice and social ethics would be defined to level their playing field on professionalism. It would be honorable objectives and the group has to be persistent and continued to mend it, not to end it. It perhaps would be the idealistic smacks of bureaucracy who should not tolerate sinful inequalities. The phenomenon, in Frederickson’s assessment, is serious so that it is important to ask for whom the policy or social program was addressed in any identifiable policy consequence (Frederickson, G., 2008). It is insufficient to point to the shape, codal language in mandate, structure of policy, often expressed in the form of statute and acts whether the social injustice was properly prescribed. Hence, the public administrators need to think about the three faculties as classed of knowledge, courage, and a quick wit. Often incompleteness or shortcomings are caused by 81 the lack of courage which is a major challenge in improving the current state of social ethics in the American society. Some Examples of Justice and Social Equity In consideration of the gaps on this point, and as illustrated in the street level bureaucrats, both concepts may be made distinct in epistemology, epithet, and in intellectual ways to develop the logic and metaphor (2008). As seen generally, both concepts could be used interchangeably, and trigger the same destination practically. The concept of justice, at the beginning point, bears two dimensions, which incorporate the individual and social strands. For the individual justice, the notion would often be posited in the respective condition and behavior of agent, which is processed in his inner mind about the moral issues having to do with goods or property. It may be questioned to probe its verity or ethics, however, as often deferred to be vested in that particular agent. Consider a father to kidnap his early child and abandons her in the deep mountain. Does he act on the terms and requirements of justice? We would not attack his act on its face that his act would contravene the moral or just requirement. He may suffer a worse poverty which drove him to have no way but to discard the early life. Other individual context of background may force him to choose or act. The concept of distributive justice may get closer to that of social justice, but the proposition employs an extent of historical, economic, philosophical, judicial, and political as well as experiential scholarship in flavor (SEP : Distributive Justice, 2013). The concept of social justice is a matter of societal concern and based on the science and statistics, which could be more tangible and beyond the idealistic posture or status. Hence, it anticipates an implementation as its companioned concept, social equity. The individual justice and social one may be independently set, but the marginal example can be convivial in the ancient sage of China, Mencius. Consider, in perversion from the first case, the adult pedestrian who found an early child who are about to be drowned in the river. Is it ethical or does it conform to the justice as Plato traveled in his book Republic? Mencius answered negatively unlike the former case and the courage is required as a moral agent. Mencius was a pro-goodness moral adherent while Xun zi would churn on the evil strand of humanity at its very bottom. Transpose, in hypothesis, the agent to be a father of drowning child. The moral requirement may shift across the society, and offers the source to be discussed intensely in the jurisprudence. We, therefore, can borrow the ideas in understanding the diverse viewpoints in bridging the justice, ethics and morality (Meyer, M., 2008). The Good Samaritan law also would be one example. As the justice entails this individual domain, it can operate as a useful concept to view the phenomenon and social mechanism. For example, the individual justice cannot be assumed if the agent is incompetent or minor. They, in a cogency and assumption, could not be deemed to make an ethical or moral decision. The criminal and civil laws recognize this understanding to institute a law in the case and statutory form. Social equity, as hinted, can possess an applied and phenomenological focus to make us possible on the grand picture of society. This light of dualism may be ascertained in the long practice of Court of Chancellery, what we often call an equity court. The common law court is often ascribed to defend the justice, which would be technical, detailed, party-specific, and inquisitive or probing. The Court of Chancellery would serve the will of sovereign to redress the injustice in a grand and fundamental stage. It may entertain the finality privilege from its character, but the modern court is structured and operates in the idea of division of labor. The social equity could be reinforced to correspond with the advent of democratic society, which would be owed to the development of modern science. For example, Comte’s positivism affected the 82 intellectual minds of society in any revolutionary influence, and enlightened new waves of thinking based on the objective science. A Relationship of Both Concepts The concept of justice would be useful to penetrate the politics, public administration, and law. It encompasses squarely the ambit of individual, social and administrative domain (SEP: Justice as a Virtue, 2013). In the public administration, both concepts would be combined to reflect. In reverting to the Frederickson’s point, the gap actually is problematic that the levels of administrators need to heed on precaution. As a policy implementer, the executives are one organ in assumption to penetrate the line authority in the destination to share the uniform concept of justice. The same context was posed in the theory of criminal justice system in Korea. Each prosecution officer is deemed in terms of its capacity and legal qualification as same in the uniform fashion about respective cases. They are responsible to the higher ranks in the sphere of public administration, but not in the level of quasi-judicial role. Their quasi-judicial role also manifests to deliver a specific justice so that I consider it to be received in any extent to awaken the less courageous bureaucrats or street level ones who could be biased or manipulative. In dealing with the cases, a junior prosecutor is same as the head of prosecution office. In remedying the social inequity and carrying their official power, they would do as same as the president or higher ranks. The concept of justice intrinsically is related with the basic attributes of humanity, and hence individual (SEP : Justice as a Virtue, 2013). As Cicero stated, it enshrines in the quality of ruler, whom the levels of policy administrators can be integrated into one ethics and moral direction despite a different mask. That said, we can understand the theory of vicarious liability where the court centralizes if the officer’s tort is perpetrated in the color of governmental function. Therefore, a scientific inquiry and policy implementation to secure the social equity can be tightened toward a justice. Both concepts swerve through the myriad of bureaucrats and moral administration, which may be leveled from the bottom, mid-ranks and top officers. In some cases, the kind of different institutions, as in the example of Court of Chancellery, may serve the cause of justice and based on the equity concept. As the science develops, their wisdom may respond with the shift in the public value and good. I may state that justice is more specific, individual, on the human-element science, universal, but dominantly national, and through all the ranks of administration while the social equity is grand, collective, often on the quantitative science, grouped, but both national and international, and often urged on the mid-ranks work force. Reference Frederickson, G. (2008). Social equity in the twenty-first century: An essay in memory of Philip J. Rutledge. Journal of Public Affairs Education, 14(1), 1-8. Frederickson, G. (2005). The state of social equity in American public administration. National Civic Review, 94(4), 3138. Korean Bar Association (1998), The Human Rights Report No. 14, Seoul, South Korea. Meyer, M. (2008). Revue Internationale de Philisophie - Volume 62 Number 246 - No 4 - 2008 (Aesthetics). Presse Universitaires de France. Paris. 83 Stanford Encyclopedia of Philosophy: Justice as a Virtue. Retrieved Nov. 8, 2013 from http://plato.stanford.edu/entries/justice-virtue Stanford Encyclopedia of Philosophy: Distributive Justice. Retrieved Nov. 8, 2013 from http://plato.stanford.edu/entries/justice-distributive/. XV. Globalization and Workplace Dimensions and Lives of Public employees In dealing with the ethics and justice within the workplace, I consider two assumptions as important to be reified. The professionals would penetrate the ethics of workplace into its projected scale of policy outcome for the addressees and society. Then they share to be consistent to create a public good and value which the public administration ultimately pursues to realize. In the course of weighing and deliberation, the subtleties in distinction could be touched on. For example, the public administration can be made into an independent slot that a neutrality should be in primacy other than public policy making, a peer concept in this field. As Frederickson articulated, the segmented equality may variegate the terms and conditions of equity to be specific, cultural and pluralistic as well as even esoteric that would hardly be generalized (Frederickson, G., 1990). Therefore, equity to equities and equality to equalities are expected and even desirable to increase a fit of distributive justice in response with the sectors and societal progress or diversity. One thing may evolve into many things as challenges and opportunities for the public administrators. We may ascribe three elements for the administrators to tackle with, i.e., value preferences, organizational design preferences, management style preferences (1990). For example, the social equity would be intense as involved in the last one. However, we need to ask in fundament, “Do we steal popular sovereignty?” I revert to say that this does not necessarily require that the two dimensions, workplace and policy object in span, have to be severed for breeding them into dual minds and attitudes. Still are the elements to converge, and they integrate the workplace and exterior object as a policy addressee from the projected ethics. Basics, rules and principles can well stay universal and inviolable that they have to ultimately respect (Sandel, M. J., 2010). The smacks of bureaucratic professionalism, henceforth, often are habituated with the same tone, manner, errand and mission to be a cult in both planes. Often the public would be outrageous if the public enterprises, particularly high ranks of justice institution, commit to speak of verbal abuse against the females or a racially minority group. That would differ in sensibility and expectations of conscientious citizen if any other entities of private nature have been engaged. Once President Obama expressed a concern and regret about the unlawful killing of minor black boy, who was sacrificed from the prejudice and recklessness by the police on public duty. Consider if the American society stands on the public value, such as equality and liberty as signified in the Statue of Hudson River. I believe that this concept needs to be consistently upheld through the public commitment even in view of a personal imagery or impression as well as knowledge, skills, conscience and courage. The White House speech may be misimpressed how the black president can make an affirmative statement for the same race. I consider it pivotal to make the public emphatic on the American commitment to http://plato.stanford.edu/entries/justice-virtue http://plato.stanford.edu/entries/justice-distributive/ 84 the liberty and equality. This kind of consistent multifacetism, what may be seen a respectful catch-all professionalism through the personal lives, workplace justice, and a policy making or administration for the community, could make it improved and appealing, and diminish a public distrust or potential criticism of showcase administration. It would be idealistic if the public employees could be a living legacy to be constantly diligent for the commitment of public service. It then can make himself, organization and his followers identical and armed with the public values they pursue. Globalization as the Workplace Environment, and Public Governance In rethinking the workplace justice, the neo-liberalization in some combined influence with the globalization may directly or indirectly affect the shape of organizational ethics and justice paradigm or practice. As seen in the message of Mittelman, public governance could have any more potential and possesses a diverse spectrum to give an answer to the global restructuring and counteractive response (Mittelman, J. H., 2002). The states had been contested in the absolute logic of economy, so that it brought about two points of ill consequence. In the first, economically deprived or uncompetitive entities could no longer survive. In other, the national politics are to be enslaved into the global logic of capitalism, which increased a prestige of capitalists or conceptually leading states, being done in tradeoffs of the wane side of Asian or Latin American leadership (2002). As the driving force to an economic interest would be any more powerful than other social factors and on grassroots from an universal motive, it can gainsay any other competing alternatives. His prediction about the important role of public governance could be received in parallel with his suggestion, say, organic intellectuals. A tension and context would be inextricable given the stalemate and some of inefficiencies within the free market system or market failure. I agree on his point about the stellar mediating roles from the organic intellectuals and enhanced concept of public governance (2002). In this understanding, we would not become a fool attempting to rewrite a globalization script. The new paradigm of public governance would not tolerate a courtesan role within which the sleeping states would have passively reacted. It would be based on the constructive friendship to discuss, share and implement on consensus. One ambitious scheme may be found in the Labyrinthine Tobin’s tax, which may face with tough challenges from the local reaction. It may be idealistic as in the neo-liberal experimentalism, but rather abstract or principled with lacking a quality of public governance and enforceability. His proposition would be received as same as the concept of glocalization, but his thesis has persuasively maturated a picture of that experiment. He enabled us to have a histography about the application of neo-liberal tenet, particularly based on the experiences and exposure to such vulnerable region. The nations, for example, South Korea, Malaysia, Russia, Mexico, Brazil, and others, were studied in view of its wake of financial crisis (2002). He considered it some way to discipline those in the scheme to adjust for a new structure of neo-liberal market economy. IMF conditionalities and currency speculation would be two examples to be remarked in impression. A power deflation, in his view, is coupled with the overwhelming economic cause about its hardship, which even dismantles some of area on the embedded commitment by the national policy makers or public administrators. Erstwhile public functions could be discouraged or offset to remedy the dystopia of free market institution (2002). Therefore, the tension between the haves and have-nots has stood out within the 85 course of evolution over the decades. The contemporary dealings enable to witness the possibility of global public governance, as we see in Davos forum and many rounds of summitry, i.e., G8 or G15. His suggestion, while I also consider as workable and practical, for new understanding of public governance in the present context employs three strands, to say, organic intellectuals, self-determination or autonomy, and cooperation or pluralism of financial affairs. Japanese Students and Workers in South Korea For the example of workplace justice, I may think about Japanese students in Chosun University. Japan is an adjacent country, and both countries developed mutually a rich history in commerce, war, and imperialistic rule during early half of the past century, as well as new constructive partnership in some of mixed national sensibilities on antipathy and cooperation. This example would be helpful in reflection with the above promenade in the ethics of administration and globalization. The diasporadic cluster of Japanese community in Korea recently flourished in many localities of Korea. This would be owed to the globalization and enhanced mobility of labor force. Hence, how we perceive and govern this group of people would raise a serious aspect of public governance, which may be keenly related with the kind of segmented equality in the Frederickson frame. It could bring a diversity in the workforce, and the basic commitment on social equity and equality of liberty also are entangled with (Cropanzano, R., 2000). As they are workers of Japanese origin and may work in a different nature of organization, the equity into equities or segmented concept of justice can be embraced for the managers. The generic source of contention also deserves our review across the multiculturalism and effective or more efficient management or leadership. A justice could be prescribed which depends on the Korean authority, and organic intellectualism or autonomy within the globalized arrangement may intervene for the proper shape of workplace justice. In this light, the sociological, psychological or cultural studies about the Japanese community in Korea could offer a useful reference to make a specific justice for this group. Societal Expectations from the Cooper’s and Some Solutions As we learn, Cooper framed a useful paradigm which could lead to a responsible conduct for ethical governance. It covers four elements to interact for shaping a responsible conduct, which are multiple to affect and dimensional as classed into the individual attributes, organizational culture, organizational structure and societal expectations. By waiving other elements, I intend to parcel out the last slot to address the ethical challenges and work place justice. The last slot, societal expectations, would possess the quality as universal and for all scope of organizations although the Japanese workers involve an esoteric nature of bilateral interplay within the national passion or emotion, political and historical resentment, and cultural differences. Other three elements could make it distinct the process of forming an ethical decision and responsible conduct in varying with the purpose of their stay in Korea and organizational culture or structure. In the updated statistics, the Japanese community within Korea has grown, and most of Japanese residents are reported to engage in any quality job, such as research, teaching, technical assistance, professional work, and so (Lim, Y.E. & Huh, S.T., 2012). The purpose of stay would fall in comparison between the male and female workers as shown in the chart below. 86 (Figure) Natio n Sex Trade and Managemen t Universit y professor Japanese instructo r Researc h Technical counselin g Professiona l work Entertainmen t and arts Japan Male 59 147 104 335 5 5 24 Femal e 0 77 258 11 0 0 8 How to address the workplace justice and create any specific ethical decision, as we confirm, highly depends on the types of organization and its mission or work frames, as well as its culture and structure. It requires, however, of proper response to the societal expectations. As the workplace is educational and pursues a philanthropic errand to teach, breed, and research, the equal treatment, social equity and non-discrimination would be cherished and should be shaped in response with the societal expectations. The public administrators, in this aspect, need to heed on the segmented strands which could possibly counteract that important public value, i.e., the workplace equality on aliens. First, the antipathy among two nationals may distort their due status which could threaten a fair treatment. From the qualitative research on an in-depth interview, the Japanese residents, of course including the students in Korea, would suffer a fear and apprehension from some less friendly attitude of Koreans. As Cohen and Safran elicited, the history is a primary source to offer the personal trauma of diaspora, particularly originated from the kindred-ship, national identity and trauma to disperse. In the interview, one aged Japanese male lamented, “some Koreans are friendly and benevolent, but a large number of them are not sympathetic or alienating perhaps because of sad imperial history” (2012). Second, the worse factors to affect an equitable treatment also are related with the false understanding of history and a chronic contention of real issues, such as high school history textbooks, comfort women, and territorial claims of Dokdo, as also noted Takeshima in Japanese. This aspect must be a focal point in education and in the purpose of increasing a mutual awareness (2012). It also would be the strategic subject to create a harmonious ethos among workers and students, as well as a peace in the work place. It could be a precursor to induce the discriminatory consequence against the Japanese students or workers, which has to be tactically responded with. An education and informal fraternity could work for the congruent workplace in justice and effective multiculturalism. Reference Cropanzano, R. (2000). Justice in the Workplace: From theory To Practice, Volume 2 (Applied Psychology Series), Mahwha NJ: Psychology Press. Frederickson, G. (1990). Public administration and social equity.Public Administration Review, 50(2), p228 (10p). 87 Lim, Y.E. & Huh, S.T. (2012), The Diasporadic Cluster of Japanese in South Korea, and its Cultural Identities, The Journal of Northeast Asia Research, Vol. 27. No. 2, Gwang-ju, ROK : Chosun University Press. Mittelman, J. H. (2002). Making globalization work for the have nots. International Journal on World Peace, 19(2), 1-23. Sandel, M. J. (2010). Justice: What's the Right Thing to Do? New York, NY: Farrar, Straus and Giroux. XVI. The Responsible Administration, Ethics and Justice: Two Illustrations from South Korea and Some Reflections about the Public Administration Studies The National Assembly of Korea and Nature of Organization I chose the National Assembly of South Korea (NASK) for the purpose of final assignment, and shall apply the hypothesis as well as typology of ethical analysis on philosophies and corners of ethical virtues. This work would include the ethical challenges seriously debated in the near past and present days of NASK. As a public policy student, I intend to frame recommendations to produce a better picture to resolve the conflict of ethics, and explore factors to affect an implementation (Hicks, D., 2013). I finally draw upon the outcome of suggestions. While linking the two cases with the philosophies and theories to ground an intelligent basis of public administrators, I will discuss two implications about the ethics and responsible administration within the collegiate body as well as new orientation of academic response to the changing world politics, economics and society NASK has long been an indispensable organ incorporated within the Korean constitution since 1948, and the practice or institutional tradition can be shared as same with the universal context. Even if the parliamentary system of government may be discarded by the constitutional drafters as in Korean cases, the assembly body, mutas mutandis, the Congress or Parliament would sustain for a public governance. This tradition would perhaps be more strong as in the Socialist states in Duma or National People’s Congress of People’s Republic of China. In a suggestion later drawn to bridge the Orient and West or Socialist to Liberal by focusing on the ethics of ruler and ruling class or social justice, it bears a perceptive implication that NASK operates as a collegiate body (Laureate Education Inc. a, 2013). This implies that the collegiate body, as structured within the constitutions, is indispensable and centralized in public administration. NASK can well be viewed to mostly share the universal qualities and attributes when we surf onto other global bodies in any comparative politics or constitutional study. It is chaptered in the first of government structure in the Korean constitution, comprised of the elected congressman, exclusive legislative power and supervisory role to monitor other governmental branches, privileges and immunities ascribed to the members, the fixed constitutional term on their service, restrictions in double-posting and so. 88 According to the Constitution, the election will be held in four years to reshuffle a previous body and for the new term. The last election was held in 2012, and was denoted as the 19 th congress in the constitutional history of Korea. The election requires the members directly chosen by the people, but some quota basis approach was introduced to assign the members based on the total number of votes for a respective political party. Sanenouri, the ruling party of Korea, had been successful to achieve a majority status in the last election. Minjoo (democratic party in English), a major opposing party, also acquired a fair number of seats able which became able to influence their political ethos and goal. Some groups may like to explore a constitutional reform, who advocate the parliamentary system of government, but merely hover around the academics or distinct group of politicians. NASK currently operates under the 1987 Constitution based on the presidential system, and the chance to transform would largely be seen improbable in any recent years. Hence, NASK is generally considered to execute their constitutional mandate on the separation of powers principle, which only takes a part to integrate the national policy, neither a center of government unlike the parliamentary system. However, the party system often dominant in the contemporary politics would mediate the president and NASK, which also would be a case in Korea. As the social justice and virtue of Republican democracy still largely are the factors of political contention despite the commonalities and divergences over history, the type of collegiate body would certainly be the forum where the nature and state of social justice issues in a specific national polity are to be debated (SEP : Economics and Economic Justice, 2013). This would not be an exception in Korea. While Korea has practiced the constitutional democracy since 1948, NASK often had been less powerful or usurped, in some sense, below its expected role in the Republican democracy or liberal politics. This means that it has, most of times, generally be seen a feeble institution under the kind of charismatic presidents. From his personal background, Syng-man Rhee had been strong as a national leader of independence from the Japanese imperial rule. He had a hereditary affinity with the Chosen dynasty and one of most enlightened intellectuals educated in the US. Chung-hee Park also ruled in any absolute hierarchy beyond the congressional check and balance, which had been a root basis in his militaristic might and growing quest to national industrialization and economic development. Chun Doo-hwan, who had reigned during 1981-1988 and one of his protégé, would largely be disposed in some similar fashion, who ruled the country in his personified way. The constitutional institution and system were be neglected or disregarded, and the personal network prevailed. It is, however, interesting that the theme of social justice, in his period of rule, made a debut in the Korean politics, at least in the parlance of government owing to the enhanced status of national economy (2013). The role and performance of NASK, therefore, largely depends on the constitutional system and political culture in a specific country. In this respect, NASK, who could be considered as leveled with the western counterpart in its culture and performance, has truly begun since the 1987 constitutional reform and Roh Tae-woo’s administration. Two Ethical or Societal Issues The First Case For the purpose of illustration, let me pick up two issues which possess a different characteristics in terms of the classic liberty and nearer concept of social rights (Universal Declaration of Human Rights, 2013; Crocker, L.H., 1980; SEP: Positive and Negative Liberty, 2013). The first example, contended in view of the ethics or social justice, aroused a 89 public attention about the conflict of interest (Hicks, D., 2013). It poses the challenges, in an analogous context, concerning many issues and agendas of ethics and administration, such as Russian Mafia or Chinese trauma of corruption, although its substance involves a small ambit of national pension for the retired congressmen. Therefore, an ethical dilemma of the issue exhibits a good aspect of discussion about the liberty, equality and social justice, particularly from a perception about the ways of operation within the collegiate bodies (Cooper, T., 2012). The second example developed in the context of municipal program concerning the child subsidies. Seoul city, in the initiative to promote a political philosophy and social justice, has endeavored on the program, which now faces a difficulty from the worse national budget. The issue progressed contentiously and in any intensity of public controversy, which had both strands amenable to public criticism as well as progressive activism. It shows a fine context of political interplay, the concern of which spans over the roles and responsibilities between the national and local governments, as well as the political ideals both major parties engineer in continuance. A contention and disagreement on this issue had fueled a major debating point in the mayor election, and no candidate would be convinced of his unwavering probabilities about winning the election. This would go as same in the 2014 local election since the program also was not supported this year by the national budget. The Pension Program for the National Assemblyman in Korea (PPNAM) was pursued around 2009, and the statute has passed in Mar. 2010. Since 2013, an implantation was secured through the 2013 national budget approved by the national assembly. The official title of statute to ground the PPNAM is the Supportive Act of Democratic Constitutional Rule in the Republic of Korea (SADCRRK, 2013). The Act provides in its pertinent article, “the National and Local Government would grant the subsidies in the purpose to meet the cost and fund which are deemed necessary to support the operation of Democratic Constitutional Association and its senior members above the age of 65 (2013). To put it simply, the goals of statute has been intended to support the former and standing congressmen, who only could enter the Association and obtain its membership. So it has the nature of seniority pension program on the condition of its membership, which at least one chance of successful candidacy and qualification as a congressman is required. The Second Case Other ethical issue for the National Assembly involves the Free Fostering Plan of Child (FFCP), which has led to a serious public debate about the social justice and feasibility of that plan (AECFP, 2013). There had been factors to affect an implementation, for example, excessive budget or incidental irrationalities from the unrefined system (Cooper, T., 2012). Often it was put in contrast between the opposing party, Minjoo, and conservative ruling one, Saenuori. As the local election for a Seoul mayor profiles so high in view of Korean politics, the parties most always do their best to attract the voters and persuade on their strengths of public policy. Seoul citizens often are an educated intellectual who can assess the policy issues and their consequence, who are large to account for one fourth of national populace. Seoul is also the province of contention with a half to half cut leading to any decisive margin for key national elections, such as Presidential and National Assembly. The Plan particularly gets to be problematic since Seoul also is required to be responsible for many social programs including the Free Food Program for the Middle and High Schools and because of its pressing political gravity between the two parties (Korea JoongAng Daily, 2013). I now brief 90 on the feature of that programs, the issues and challenges, points of assessment as well as factors to affect an implementation of both Plans. Key Social Justice Themes The First Case The ethical dilemma of this program contributes to the worse public sentiment as it is problematic in view of the public conscience and reason (Chosun Daily, 2013). The kind of program was not unique in Korea, but a scope of developed countries enacted and implemented such policy. They generally are, however, considered as designed reasonably and in the permissible fashion. US, UK, Germany and France could come within this class, and Japan has recently abolished the system. PPNAMs in these countries mandate a stern classification about an eligibility to the pension money, and the sum was not fixed unlike Korea. It maintains, however, a sliding system on the calculation method which pertains to each specificity. Let me tender an extent of its flaws and weaknesses. First, the scope of eligibility is rather comprehensive and too generous to disable a prudent assessment about the merits. The Act provides ten disqualifying causes in this end, yet to be insufficient because of its ambiguities and catch-all dealings inoperable to exclude an impertinent beneficiary. The practical consequence of this flaw would be that the assemblymen can claim a monthly alimony if to serve a short of one year only. This contradicts a prevailing concept and social justice for which the national pension system is directed. Second, the system would be vile since it did not filter the context of other pension beneficiaries. This means that they may exploit a dual receipt of pension, which doubles their retirement income and causes a social injustice in terms of public welfare. Even for the unworkable scope, e.g., a retired wage assemblyman, the pension would purport to ensure a basic level of human subsistence without the labor. The ideals would be disserved or perverted by allowing the same or more compensation for whose labor cease. This multiplicity problem is now debated around many drafts of pension programs, for example, the National Pension Plan (NPP) and Basic Subsidies Program of Aged People (BSPAP). In the case at matter, the alimony is ten times bigger than BSPAP, and NPP requires a contribution from the beneficiaries. Hence, the dual or multiple eligibility obviously comes more serious in PPNAM. The alimony monies are rather gross in amount. According to the 2009 statistics from the National Pension Foundation, the spouses residing within Seoul are entitled to 1,100 and 1,008 dollars on a monthly basis since 2006, who contributed an installment during 219 months and 218 months respectively (Chosun Daily, 2013). This means that 18 years of contribution of statutory sum in each month could only qualify them to as less than 1,200 dollars. In comparison, an alimony for the retired congressmen, which is set at 1,200 dollars, outpaces it. One day service in the national assembly may bring a more economic benefit than the earnest and honest middle class of Korea. The NPP now undergoes a downward adjustment from the public pressure, but the alimony for them would be adjusted upward as corresponds with the price index. This leads to the challenges about the public sensibility of justice, equity and equality (SEP: Economics and Economic Justice, 2013; Cooper, T., 2012). The Second Case 91 In the second case, the Plan, around Mar. 2012, was designed to promote a social reproduction if the nation was in the face of radical decline within the birth rate. It was pursued by the national government without an exception and on no discriminatory basis. The government applied a scale to increase the subsidies amount, but it has made no significant effect on the parents since it was less effected (AECFP, 2013). The parents may commit their children in some time frame to the public facilities. Besides the subsidies, however, an additional expense falls within the responsibility of parents, such as that for the education or activities. More problematic would be a serious confusion and unpredictability in the floor of public facilities, which stems from the lack of standard, rules nor ethical guideline on the subsidies system (Korea JoongAng Daily, 2013). The system is entirely on the basis of financial contribution by the direct transfer of currency amount. This serves a distortion of system in an intense competition for cash, and undermined the public value of fostering service, the kind of utilitarianism, an expansion of public infrastructure, as well as a liaison or network concept in bridging the private and public for the maximization of happiness. A particular note on the increase of the Household Fostering Service would show a floating away of public commission and trust, but it merely expedited the private enterprises to exploit as their income source. A tremendous amount of budget actually made a lesser effect since the quality of service provision and cost management were neither officially nor institutionally controlled (Reichert, E., 2011). This factor baffles a more efficient outcome. The Plan also has a critical flaw which was failing to exercise a policy survey and assessment concerning the addressee’s class. This failure is a principal culprit for the abusive and imprudent vagary of clients, “file first and wait to see.” On this basis, the true addresses in need of public fostering service could get in a secondary priority or excluded eventually from the benefit of service. Major Challenges and Factors to Implement The First Case A problem of the first case lies in the fact that it contravenes a basic promise and frame of public pension system in that no installment was exchanged for the bargains of eligibility (Chosun Daily, 2013). This way of dealings is prevailing and basic on the kind of system, as we see in NPP, BSPAP, and National Pension System for Teachers, as well as one for governmental employees. This point comes central that most of the conscientious people expose their sentiment and get to be disgruntled. It aroused them that the social justice and equity was either in imbalance or undermined. Other problem lies in the vulnerable system of monitoring and feedback. As said, the exculpatory clause enters the scope on exemption or disqualification (SADCRRK, 2013). The causes are vast to pertain to the initial determination of eligibility. Nonetheless, the regular device to check a qualification needs to be strengthened. The chief of Association is able to ask a submission of evidence to support their continued status as a beneficiary. However, it would be needed of mandatory as a matter of law. Other more enhanced system to ensure a continued check-up for eligibility would be desired. The controversy about this system has not been just on the public, but surfaces as a one of hyperboles within the political parties themselves (Chosun Daily, 2013). The Budget and Audit Committee of National Assembly (BACNA) prepared the white paper, which includes a reaction and resilience of the people in concern and dissatisfaction. The critical 92 points in this paper would be same as briefed that the basis to pension benefit is stripped solely with the age requirement. The elements often factored as a standard in the public pension system, such as income, assets, an employment years, had been waived. That would transgress the ideals of frame instituted in other occupational pensions or National Pension. The controversy became especially serious since they are norm creators and receivers of norm. The ethical dilemma within the conflict of interest as well as prejudice on their position power and privileges enhanced a public contention and criticism (Hicks, D., 2013; Cooper, T., 2012). This aspect was geared up by the media and public press, which heralded an informed disclosure about the issue. A short service assemblyman and the criminals upon the termination of prison terms would not be excluded which could be sufficient to question its ethics and social justice (Laureate Education Inc. a, 2013). A dual or multiple receipt and too much alimony were also pointed out in the paper. One other critical flaw was illustrated that the system avoids an eye from the economic condition of national assembly man or his household. The Second Case We now turn to see the challenges and factors to affect an implementation of the second policy, which, amongst of all, could be encapsulated into three points of consideration. First, the budgetary constraints distort the Plan and lead to a complex ethical or social justice dilemma. On the last day, 2011, NASK approved an increased sum of budget from the governmental proposal covering the subsidies amount for the 0-2 years children (AECFP, 2013). This social benefit was fixed in a scheme over the years whose income ranges as lower than 70 percents. A scope of social welfare programs often have been pursued in a match with the local governments, which, as a corollary, require an incidental local budget in the process (Korea JoongAng Daily, 2013). As the Plan was released on public notice, new demand increased dramatically and the required budget amount doubled. The national conference of city majors and province governors forecast an increase from the 50 percent households to the point around 70-80 percents, who commit their baby for the care of Plan facilities (2013). The local governments, largely troubled on an unsound budget and often vulnerable in the state of financial independence, have to undertake the Plan by creating a heavy debt and owing to the absence of sufficient intergovernmental coordination in advance. Jong-bum Lee, who is a chief administrator of local governments, lamented, “The subsidies for the Plan would be drawn in the form of matching funds, and usually in the half to half ways between two governments en toto, which depends on a specific condition of respective local government. NASK miscalculated the number, 30 percents households disserved in the past, and expected 3.7 million dollars to meet the demand. The new demand unexpectedly exploded that the financial burden of local governments amounted to as high as 7 million dollars” (2013; Reichert, E. 2011). The National Planning and Financing Department and other agencies shared an expectation that the budget basis will be drained within about 10 to 17 local governments in June and July, 2012. One Seocho-gu officer said, “Seocho-gu would be most serious. Other adjacent prescient would be supported with 6o percents share from the central government, but ours would be as less as 30 percents. This means that we will have to discontinue in this June because of the financial unfeasibility” (2013) 93 One rank officer of local government also deplored, “The residue from the last year was officially transmitted to the local government in May. However, this monies already was planned to complement the shortage of NPPAP and other public projects. Then the monies would not serve any fiscal deficit from the FFCP. Any more drastic measure only could save the current dilemma of fiscal impasse” (2013). FFCP was designed and attempted absent any consonance and prior consultation with the local governments, and processed in the NASK. This anomaly from such unilateral initiative should be put on the shoulder of that responsible dimension, i.e., a central government. As the FFCP began to be implemented, over new five hundred public facilities had been recorded through only two months period, Dec, 2011 and Jan. 2012. Only 35 were national and public facilities, but other 438 private ones increased in number by twelve times to the former Plan (2013). This course of multiplication also went same in 2005 and 2006 provided that a subsides amount on the basis of facilities diminished as well as that on the children basis increased. We can chart a same mode of progress that the private or a free home fostering form multiplied, that a competition to induce the children intensified, while the pursuit of commercial interest swaying as unethical. The national or public facilities got marginalized in number as less in 5.3 percents, and the private facilities predominated a provision of service. The policy goals from the Plan had a central focus on the expansion of subsidies amount, and the increase of infrastructure or facilities was on the list in policy items, but set aside because of an insufficient budget. This critical flaw virtually paralyzed the Plan, and well calls upon its halt or suspension. A focal attention from the consumers of Plan would rather sees a trust and credibility related with the quality of facilities and adequate management or supervision. Given the burden from an additional expense, the Plan’s primary goal would less effectively work (Cooper, T., 2012). A use rate of fostering facilities for the 0-2 years children amounted to 50.5% in 2009, which allows a third spot in the OECD statistics. This rate is too high in factors from the OECD recommendation that 30% would be adequate and the home breeding would be a better option below the age two. Korea surpassed the recommended rate four years ago. Only Holland and Sweden outranked Korea by 83 and 66 percents respectively. Their case would be distinct that 72 and 76.5 percents of parents are working while Korea shows only 29.9 percents of parents on the employment status (Korea JoongAng Daily,2013). This statistics shows that no strong reason afforded a ground for such high rate of subscription to the public fostering service in Korea. This trend principally seems to be caused from the unsavory rush of parents, which perhaps would be from the intuition of free riding and any hallucination of loss. No genuine concern seems to be posited on the committing parents. This trend is certainly inimical to the most seriously interested households, say, working mother homes. The system legally misled a consumer’s classification by exclusively relying on the number of children for each facility, as well as the “first come first served” dealings. The housewife mother homes can petition earlier to frustrate a working mother. From the launch of Plan, their propensity got worse to consume the whole hours as maximum as possible and legally entitled to them (AECFP, 2013). 94 It is a postulate dominantly accepted that an affinity and pathos created around the earlier years of children as 24 months is determined to form a healthy psychological ego, i.e., social attitude, personal emotion, and trust relation in later years. A stable affinity and pathos in these years also affect to develop their brain or mental capacity, and autonomy as well as maturity of an ego later years. Otherwise the children would suffer a mental dip about an aggressiveness or brutal hostility and degradation of self-confidence or sense of trust. Any best way to increase the affinity and pathos of children is a mother’s hug that needs to be frequented, and some intimate contact with a biological mother. Ericson, an influential author in this area, particularly stressed the importance of early childhood and intimate relationship between the mother and child. Myoung-hee Ahn, a professor of psychology in the Seogang University, also adverted, “The mother plays a role to bridge the world and child in his or her earlier years. The children can develop the character and intuitive power to overcome a frustrating pressure or strains. A lack of this phase in earlier years often causes a self-suspect and distrust of the exterior world. Korean tradition once would be a paradigm that the western household worshipped to follow. That now is no realities here” (2013). A public employee, named Hye-jeong Choi, served five years to provide a fostering assistance and said, “She is discontent with the Plan. The children committed to her care, all through the daytime, are crying for her biological mother, and the apparent context of subsidies benefit usually incurs an impulse of non-working housewife to ask for long hours of care.” She now works in the Seoul Child Facilities, which operates from 7. 30 in the morning through 7. 30 in the evening.” A tax abuse and additional expense burdened on the parents also pose the challenges. Some of the fostering facilities enforced a wholesale increase of incidental expenses for 3-4 years children although they focused on the five-years group. This practice urges a follow-up investigation and adequate policy response at the national scale. The government granted subsidies in sum on the basis of law, and the facilities often should neither trade off that nor even increase the cost from other justification (AECFP, 2013). This could make a policy effect by never reducing the pocket expense of parents and because of the tremendous amount of budget, i.e., 1.2 billion dollars. Their basis to increase an incidental charge is ambiguous, such as the heating cost or event expense. Nonetheless, the local governments, a principal actor to supervise the system, have not performed any research nor initiate a supervisory command to ensure the transparent administration. This status, highly irresponsible and neither fiduciary nor ethical, forecloses the initial ambition of this plan, which would practically be obvious over ten private facilities at the urban Seoul (Cooper, T., 2012). The fostering administration often does not function in the public trust and credibility, which would likely be from the unethical and interest-driven owners. A short minute of care legally entitle them to claim the subsidies so that they often prefer a housewife children rather than those of working mother. It is highly selective that an easy access to the facilities was baffled. As the quota of children increased, the quality of service would degrade and a workload of fostering teachers gets tougher. The benefit ascribed to each party also shows 95 that the policy grossly favors the fostering facilities, which, in dollar amount, 800 for the facilities, 400 for parents, and 200 for the fostering teachers (Korea JoongAng Daily, 2013). Finally, a geographical disparity can undermine the equal justice of this policy varying with the quality of fostering teachers and their service provision. The government implements a guideline on the work frame in time, which is from 7 in the morning through 7 in the evening. If the work frame would change to extend, the paper work of fostering teachers would add making it a twelve hours cumbersome work. Their compensation might be halted in some cases, which also got worse depending on the fiscal state of each local government. The fostering teachers tend to leave a deprived region for the high income locales, which often are populated with the working mother houses. A reform alternative to improve the facilities is dispensed by the terminal officers or owners which undermines the sense of pride and personal decency. However, they do not have an effective means to raise their political voice. That is because the fostering teachers are not represented collectively unlike the owners of facilities. The unethical owners often see a headcount of children as their income source, and some fostering teachers are incompetent or uncommitted. This context could impact seriously to the disadvantage of children. For the children of 0- 2 years range, a shortage in the supply of teaching servants poses a greater challenge, particularly for the locales of province and in the agricultural area. In case of Chung-chung Province, the necessary fostering teachers would be around 7,000 from the whole quota, 600,000, while the practical force is 6,000 in number (2013). For this reason, the quota often was not satisfied from 80 percents and even lower as 6o percents in the agricultural area. Three children would be assigned to match one fostering teacher, but the context is not being implemented as schemed. One local employee of government urged, “a special policy response needs to be shaped. Otherwise, the ambitious plan may be accused of perpetrating a serious discriminatory consequence” (2013; Reichert, E., 2011). Thirteen facilities among fifteen in Young-dong failed to recruit a requisite number of fostering teachers. Some provinces enacted to reimburse a special compensation in some small sum, but likely effects less. Recommendations and Outcomes The First Case BACNA reported a policy suggestion to remedy the identified problems, which is encouraging and on progress. They perceived a controversy in competing policy goals, i.e., an integrity and sanctity of congressmen as a constitutional agency and the acceptable design of system. They are required of high standard of position ethics from the Constitution, statutes and internal ethical code, but the support of senior members, who could be economically deprived, is lacking. This context was responded, as said, by an enactment of the pertinent laws across the developed countries. Korea has already entered an advanced status, which requires exploring the needs of system more seriously. It increases a point of persuasion provided that the nation has long afforded an affluent public pension for the military personnel and government employees. BACNA adopted the alternative to go with the current system as is, while simultaneously launching the task force to be responsible for a revision. The revision project would begin with a collection of ideas and opinions from the incumbents and former national assemblymen. A first priority was suggested that the administration unit of NASK reviews the merit of sliding scale as well as the linking 96 possibilities with NPP (Chosun Daily, 2013). Their long term ideals would remain as same that it is required and ethically rewarding to support a financially vulnerable and aged assembly man. It comports with the requirement of social justice for their contribution and devotion to the nation. Therefore, their viewpoint on this agenda basically agreed on the fundaments of this system, but urged the need of political process for the popular support and sense of justice, as well as the equality and equity. The reform voice is not solely for BACNA, but the major political parties are active to modify the system toward a more reasonable one (Cooper, T., 2012). Three revision proposals are now pending and assigned with the responsible committee. This development would fall in a sharp contrast with the passage of Act in 2010, which was a one day process. The Second Case Most impending is that the policy makers have to be perspicacious in decreasing the quandary of policy abuse. How to be faithfully committed to the foster and care of children would be the way of fiduciary duty owed by public officials. A mere spending to grant and subsidize would vitiate the values on human right, liberty, as well as social justice (Laureate Education Inc. b, 2013; SEP : Positive and Negative Liberty, 2013; Universal Declaration of Human Rights, 2013). As surveyed, 0-2 years children would be more desired of home fostering, and many countries, in accordance with an OECD suggestion, institutionally support the mode of financial benefit. The Korean system, on the other, enforces a unitary scheme of public facilities, which can bring a discriminatory effect on the households. In consideration of the concerned parents and children, children over three years could be grouped for the fostering service. The national programs in this kind need to be designed carefully, which requires referring to the professional advice and adequate public forum. While we share the merit of subsidies in the cause of welfare expansion, the government will perform well if to revalue the scheme for home breeding of children below 2 years in age. The present system limited an access to the public subsidies for the second class in the government wealth classification code if the household opts for a home breeding. It has to be revised that all classes can choose without any disadvantage between the home breeding and use of public facilities. This would serve the equity interest and would comport with an OECD suggestion (Cooper, T., 2012). A serious assessment of ill effect in the prior year was not made. Until 2011, the subsidies were dispensed exclusively to the users of public facilities. In 2012, the revision rather extended the amount of subsidies and avoided an acid criticism about the discrimination of home breeding (AECFP, 2013). A view announced from the Seoul YMCA is echoing, “As the children under the age of two would be done better at home, and this being in accordance with the OECD guideline….The public service would pertain to the group of three to four years, which requires the system to be transformed from the subsidies to a national child alimony” (2013) It is fortunate that the Department of Health and Welfare (DHW) accepted this view to allow the parents of 0-2 years children an option between two ways of dealings. It would also serve the equality and convenience of system to provide the voucher system where the parents can use only in case of needs. A tax benefit needs to be afforded in the purpose to 97 boost a birth as well as to meet the fostering needs of women. A tax deduction on the educational expenses also would be helpful. On other basis, it would make a public good if the policy can shift to be founded on the disparate income frame and scaling system. The national or public nature of facilities would yield a fair and impartial administration in experiences, and the workplace facilities would be urgent to improve the system. According to the Nov. 2010 report from the government, it obliged the statutory size of firms to provide the workplace fostering facilities, but four of ten would not satisfy that requirement (2013). The government keeps their names confidential to avoid the public criticism. The Civil Society on the Justice of National Economy, one of most active pressure group in Korea, claimed its public disclosure in the last June, but the response has been inattentive in any short comment, “It would jeopardize the property rights of citizen.” This interaction simply shows a historic contention between the liberal and social state paradigm. In the statistics, 236 among the whole 576 classed into the scope of statute failed to meet a legal requirement, which includes a workplace with more than 500 employees at total or more than 300 female workers. In conditions as the safety issue or lack of space, they may alternatively bear the expense to foster the children or designate other exterior facilities. The above 236 firms neglect on these duties, and the aspect of penalty or disciplinary measure has to be reinforced relying on the requisite legal provisions (2013). Philosophies and Theories The cases described above show a typical dilemma about the classic ideas of government as well as the modern national paradigm in the pursuit of social justice or welfare. The first case can be ethically questionable if the lawmakers could enact a law to their self- interest. In the modern ethical term, the pension plan possesses a quality of contention possibly in derogation of the right ways on the conflict of interest requirement (Hicks, D., 2013). The legislative power is expected to operate under the separation of powers principle (SPP), hence, this traditional adage of legal principles can be reminded to respect. As incorporated into the Constitution, the standard as to regulate their conduct and ethics would approach as powerful as in the cases, such as the prohibition of ex-post laws or self- incrimination. Otherwise, even the natural law theory could also mandate to conform their conduct to the inviolable concept of justice. For example, it is self-evident that nobody can enact the laws for himself in any discriminatory or specific ways to dispose. The laws need to keep on the essence of justice in general as well as in the form of abstract terms or prescriptions. A classification and way of dealings are required to be impartial and unbiased so as not to disparage the intrinsic of executive power (Kranich, N., 2007). Hence, it is strictly forbidden to enact the kind of dispositive law, but the acts should allow an interpretive leeway expected to operate within the province of executive power. That assures, as a way of inter-branch check and balance, the ideal of separation of powers principle and against any arbitrary abuse of vested powers by one branch of government. The vehicle of SPP, hence, could enable a “division and loyalty” to the popular democracy. We often say the “divide and rule” axiom in the traditional operation of labor union and in the imperialistic ways of ruling for the subject states. The idea shares a similar attributes except that the public administrators have to be loyal to their sovereign and popular will. The public administrators are no longer placed to the role and responsibility on the successive or hereditary basis. They are elected by the people and may be appointed by the representatives of popular will. That is the only basis that they could be empowered and carry 98 their constitutional or statutory power. They are, in this respect, required to owe the kind of fiduciary duty and act on trust to serve the people in any faith, professional competence and capacity. As Cicero, a Roman philosopher on the ethics of ruler and social justice, said, “Justice is a fundamental element to be ensured of the rule or governance, which is only way leading to a human solidarity” (Laureate Education Inc. a, 2013). While the pension plan can fuel a controversy in light of the liberty and SPP, it also can evoke the dated notion of social justice and ethics of public administrators. Bentham perceived the importance of new thinking about a rule, its ideals, understandings, network, system, and organization. He offers a philosophical foundation for the modern positive state on the legislation and new covenant of public administration to share the revolutionary spirit (Audard, C., 1999; Postema, G. J., 2006). His utilitarian conception and theory could contest, in tenet and ethical requirement, the right ways which NASK had to opt for. His pursuit to maximize the individual happiness would be sublime for the administrators to bear in practicing their official duty. His free rider’s thesis is interesting which could well discourage this faithful public theorist. As outlined, the pension plan led to a high likelihood of public dissatisfaction and unhappiness about its sudden protrusion, hastened progress into the act, lack of public forum, insufficiency in provisions and inadequacy of finding an eligibility, as well as the high amount of subsidies. The goals and purpose triggered by the pension plan, however, could be verified to have a plausible ground. It was planned to support the great nationals who could not afford their lives in later years (Kranich, N., 2007). A fiscal feasibility is considered well in the purview of ordinate treasury and apparently costs less a burden. Many incidents developed in the NASK over the decade, however, proves in other way that several of such self-motivated measures frustrated the citizenry. The civil monitor group in Korea thankfully charted and reported to increase a public awareness. Notably, they have long years voted to increase their compensation under the circumstances where the national economy had staggered, the unemployment of youths disrupted the society, and the citizens were pressured so much to yield the highest rate of suicide in the OECD statistics. They often showed the tendency to side their peers in the incident of justice on the arrest of person, who ccould, then, claim his constitutional privileges and immunities as a national assembly man. They are never a housebreaker or highwayman whom Bentham made a wry wit about and who could stall the ethical and minded public administrators as saddened (Audard, C., 1999; Postema, G. J. (2006). They seem a due cause to institute the plan, which complies with the comparative illustrations of developed states. The practical aspect of Plan, as suggested, could be reexamined in the end to create a supportive ethos of people. FFPC was pursued in the social welfare sprit and in order to promote the birth rate of nation. The social justice and equity, however, would posit a serious challenge as we detailed above. It does neither involve the conflict of interest nor ethics of congressmen in any conspicuous dress, but the redistribution of resources and wealth could possibly be misdirected or in the vein of structural or implementation flaws (Hicks, D., 2013). Most problematic is the present context of progress that a true beneficiary could be discriminated in the interest of facility owners leading to an ineffective consequence and contravening the intended goal of service. The equity, most closely related with the whole scale of social justice, would not be operated as deviated from the expected trajectory of Plan. The housewives have grown in number to exploit the benefit of plan as a primary class of beneficiary so that the working mother home, a target class of the Plan, was set to be secondary since the committed care requires a more hours and work demand. From the libertarian view in clanning on the original freedom and property right, the welfare expense 99 in this type would not be supported. They would entertain their ground that no legitimate basis to spend the tax income and public funds without any key public use, such as police and national defense service. The positive liberty concept, however, suggests its role more affirmatively that the working mothers can be enabled to exercise their function and liberty with the welfare assistance (Crocker, L.H., 1980; SEP : Positive and Negative Liberty, 2013). They can work thanks to the public aids, and can manifest their capabilities, talents, and economic activity in freedom. The negative liberty or equal opportunity from the least involvement or less regulation of state could not reach this dimension. The context of controversy also reveals an equality concern that the functional equality, implored by Dworkin and Sen, could be served if to be compared between the working mothers and unmarried maiden (2013). The government made a classification to serve their policy goals in the benefit of household, which has the intended range of children, i.e., 0-3 years old. This brings the consequence of unequal treatment among the citizens, which can possibly abridge the equality of resources and opportunity. The first principle, in the Rawls proposition, can see its way to the complex equality for the aids and grants to restore a justice. The veil of ignorance in the Rawlsian understanding could be posited about the deprived and child burdened household incidental to the working mothers. They are economically vulnerable, but could contribute to the increase of birth rate and national production or economy. The idea or concept can be shared in the same strand when the developed countries boost the developing counterparts by aids and grants, which Rawls and the current structure of WTO espoused as their economic justice (SEP: Economics and Economic Justice, 2013). The context of interplay would upgrade the function of them and contribute to the material welfare of humankind as well as the increase of world economy. This scheme on social justice would be perceived as ambition-sensitive as Dworkin focused. A retreat to merely an endowment- sensitive approach of equality would lead an intolerable waste of working force and huge sojourn of human resources. The equity or equality requirement may be highlighted by pointing to the geographical terms of nation. A fiscally deprived local governments may suffer a minimal operation of fostering facilities which marginalized the service in a specific region. This would incur a great potential to deprave the legitimacy of Plan, so that the government is required to elicit the standard and revised scheme. It could be on feedback from the initial implementation period of Plan. The supervision and monitoring process need to be enhanced and be controlled to remove the chance of owner’s unethical or contradictory commitment. The nursing teachers would be a precious actor to perfect the Plan. The government should prevent an intermediary exploitation of owners or managers of facility, increase and maintain the quality and faith, and procure a requisite number of teachers to fulfill the demand. Concluding Insights About the Ethics and Responsible Administration of Collegiate Body The rapid context of globalization and geographical compression may be enabled by the technological advancement in the new millennium. I believe that this factor transformed the mode of governance where the collegiate body would penetrate the differing polities on the universal basis (Cooper, T., 2012). Now the people, or global public at this time, perhaps 100 would be less attracted by the political or economic theories, which have depraved the polities to their own way. The Orient and West also had long been deemed heteronomous between the western liberals and communists or feudal Orientalism. The impact of e- technology, as a most notable influence, now affords the opportunity to share and sense in any common attributes of humanity or society. Now the ethics or social justice, which is, in many subtleties, intimate, delicate, and applied beyond the established formality of western intelligence, can appeal not only in the national politics but also in the international plane (Laureate Education Inc. a, 2013). We can encounter a usual scene of summit meetings who exchange their personal value, perception and administrative ethics. That would often not be the case when we consider the most universal body, i.e., national assembly or congress. An interchange in this domain may be in the network or liaison, but could not be leveled to the context of summit. Particularly, the way of executing their constitutional duties would be rather different as pointed out. For example, anonymity in their vote could render them even less responsible than even the executive officials. The two issues discussed above expose a very basic contrast across the self-enactment, self-interest, social welfare and justice, positive liberty, as well as the human rights to a decent condition (Donnelly, J., 2013; SEP: Human Rights, 2013; Universal Declaration of Human Rights, 2013). The first case involves a classic notion concerning the potential power abuse as coupled with the social welfare of target group. The second case deals with some most enhanced science and reasonableness of the social welfare program. Both issues actually sensitized the Korean people in a great concern and interest than any other serious economic issues. This implies that the netizenry and people in this new millennium are largely disposed to track intimately on the public administrators who long enjoyed an insulation and independent nobility. The trend may go similar in the socialist elitism of Congress or communist parties, and converge to be subject to the public monitor or critical eyes. However, the ethics of them were not dealt in any coherent manner which factors the attributes as a collegiate body. I suggest that the Cooper’s model may serve an individual member of collegiate body at this point of time, and hopefully expects for further studies more suited to the ethics of collegiate body (Cooper, T., 2012). Both issues actually disclose a square aspect of ethical failure to pull down the public image of NASK. Behind the controversy and public disappointment, we regret if they might neglect on a due regard to the required ethics. This could have been ameliorated if he or she individually and seriously assessed the problem on the kind of Cooper’s deliberation. The attributes and qualities of organization also seems to matter in the kind of “institutional inertia” or amok, which requires a system studies of ethics and public administration concerning the collegiate body (2012). The ethics and social justice are one of sensitive topic for the contemporary administrators and global public. For the material conditions have improved, this theme poses an aspect of serious challenges to attract our attention. The contemporary literature in this field had been dealt mostly with some philosophical studies, practical point of public administration, and some of efforts on theorization or design approach. The outcome of this less exposure and unattended research would lead to the lack of pertinent frame to analyze more systemically and in affluent sources of reference for the different nature of public organizations. While Cooper’s ethical decision making model shows some of mental stages to deliberate on the ethical dilemma and challenges, it could possibly possess a universal quality as the design of ethical decision making process (2012). However, it is highly generalized to neglect on the specific nature of public organizations. I would like to withhold 101 looking into the private or for profit organizations since the theory or metaphor with the public ones would properly subdue their minimal nature of dealings. Given the Cooper’s analysis and approach provides a good model in the aspect of formality and mental progress about the specific public administrators, it is also necessary to substantiate the quality of ethics or social justice issue in terms of the attributes of public organization (2012). In this standpoint of view, I intend to make a distinction between the bureaucratic nature and collegiate body of public organizations. There are a scope of public organizations in the different nature, which maintains a bureaucratic work structure, notably the executive branch of government, foundations, and high supported charity organizations, public schools, and so. There could we find the collegiate form of organizations, such as congress or national assembly, public commission or council, consortium on the public project, and etc. The quality and attributes concerning the interplay of ethics or social justice with the collegiate bodies could be clarified in several aspects against the bureaucratic types. First, the organizational members generally would enjoy an equal status and competence that a complicated or aura of ethical issues distinctly arising from the context of command and obedience would not be present. Second, the organizational members often undertake an important role and positional power as a decisional body, which would be to leverage their ethical requirement more stern in some cases, but more softened in other cases. Both cases discussed above could be viewed in the latter light. Third, they would be a norm or standard giver and simultaneously a norm or standard receiver, who has to respect the ethics codified or required in any form. They could be plenary to regulate their conduct, but the tradition and social attention would monitor as coupled with their good conscience and personal quality or integrity (Maccallum, G.C., 1993). The specific context of norm formulation, for example, anonymity in the vote, could have a potential to be resilient in producing a socially desirable ethical code. In some of response, we may reinforce a stricter scheme about the name-designated enactment, open vote to be name-disclosed, and the kind of intensive hearing sessions about the sensitive social welfare program as well as a public forum indispensable with the agenda on conflict of interest, and etc. Fourth, they perform their job responsibility on the ad hoc basis in many chances that the ethical requirements would normally be less serious nor challenging than the employees in bureaucracy. Therefore, I consider that the standing status of organization would be more a factor in distinction. For example, the panel would be a lower and ad hoc basis arrangement while the appellate body staffed with tenured judges within the standing nature would be seen otherwise in the context of WTO. Fifth, it seems also relevant about the ways of ethical process whether the organization is governmental or entitled to the constitutional privilege. The non- governmental organizations of public nature would share the attributes in middle status between the private and governmental branches. Given the constitutional privileges, the national assembly, for example, would face a distinct body of ethical practice on the tradition and constitutional expectation. For example, it could be a virtue for them to more readily disclose a public truth in the Floor, which is other than the ranked bureaucrats or executive 102 directors. The philie buster could also be viewed not strictly unethical, although we see it undesirable in some cases. Other governmental organizations, however and across the jurisdictions, tend to be governed uniformly by the centralized statutes or decrees on the ethics and responsibility as a public officer (Laureate Education Inc. a, 2013). From the Econo-political (West) to Ethics or Justice Discourse (Orient and West) The two cases exhibit the typology of western thoughts between the liberal and social dualism projected over the scope of disciplines, i.e., politics, economics, sociology, law, and so (Murphy, A., 1998). The cases also exhibit typical burdens which the public administrators, over the long centuries or decades have been posed as challenges. The two cases would perhaps be irrelevant with the locus of nations, if to be west and east. For example, the spoils of victory in 19 th America would still be on vestige and ethically challenged by some of public views. The Russia Mafia or Princelings in China over the decades would also show a dilemma involving the conflict of interest in any grand scale. The social welfare policy also could be shared in the communist states, and China notably intensifies the liberalization of national economy within the socialist basics (Hunt, L., 2008). They may restructure a perfect, but minimally afforded social welfare due to the materialistic incapacity. The liberal western states also struggle with any adequate extent of social welfare policy. Hence, the two cases are prone to seriate the wake of history and hemisphere on earth, which drove us to mediate on the practical and ethical aspect of academic thinking. I consider the ethics and responsible administration studies in prongs, possibly with sharing and reaching the common breath between the West and Orient, as well as the communists and liberals. The traditional frame is dominantly western, hence, econo-political to implant. Now I consider, however, that the needs or background on this intellectual exposure could be said a tradition or basic, mere a backdrop or in the least practically not arguable. We may impeach an evil state on human rights violation, but never condemn them as they are a communist regime of national economy or so (SEP: Human rights, 2013). Notwithstanding the famous word, “demise of ideology,” we now generally agree on its flip side, but some of new trends in our everyday lives. Reverting to the cases, we suppose that the rulers in power should be on some ethics about the conflict of interest, and that the social welfare program could lead to the positive liberty or functional equality and the kind of substantive justice (Laureate Education Inc. b, 2013; SEP : Positive and Negative Liberty, 2013). Often the econo-political frames have been imposing to structure our intelligence, but the massive society or close context of public interaction on e-technology or for other many reasons, now defines the practical points of contention in other ways. While neither or only minimal improvement could be ascertained from the earlier century or decades of Congress in both issues, the public now are more interested in their ethics, manner, motives of policy, and the kind of justice attitudes. The contemporary society poses a multifaceted challenge of human condition and lives in dignity (Hunt, L., 2008). A progenemonon to the modern civilian society enabled a materialistic prosperity in our living conditions although some of awakened voice claims an aspect of fundamental wrongs from the generalization and consequent amok from the unbeknownst or intoxicated leverage of massive general base or manageable citizens. They have a concern about the unemployment rate, stalemate of economy not to satisfy the population growth, as well as their income or retirement prospect in terms of the assets or pension. The modern structure of politics and economy has settled well making them to be a merely adaptive 103 personality and to focus on their chores vastly. This constant tone and ethos in the lives of dominant class would be refreshed by an occasional exposure to the international controversies or idiosyncrasy from the politics and national or international leaders or other exotic experiences. However, that would not entail a serious political or economic issue to disrupt their pleasant personal domain (Murphy, A., 1998). If we now gradually acknowledge G2 politics and the rise of Oriental power, we may be helped with some of useful insights from the standing Chinese leaders. In the hierarchy and rank order, the newspaper introduced three Chinese leaders, Xi jin Ping, Lee, and Hwang. The leaders had addressed his interest by illustrating a most influential book in his respective leadership. Xi, as matched with his top national status, illustrated a Chinese novel titled Ordeals and New Plane and authored by the professor of Chinese Military Academy. Lee, as a second rank of leadership, was concerned about the national economy, and mentioned the book which frontiers the second industrialization on the fossil fuels toward the third of information technology (1998). Hwang shed a light on the insights and wisdom proposed by A. Tocqueville about the revolutionary social condition. China, besides his rising status in the world economy, is a most populated country. We now witness that the world becomes compressed to see a gradual congruence between the West and East or Orient for many reasons, for example, e-technology or some of decades experience of the liberal or social democracy. The civilian wake of democratic governance has trained both pans to share a common ground and openness to exchange. Despite a continued difference or contention at some extent, I like to suggest the ethics and social justice issue could be one of governing theme which the contemporary global public implicitly receives more than any other political or economic discourse (Laureate Education Inc. b, 2013). While, in the Lee’s interest, his book can bear an intellectual insight and serve to cultivate the mindset or attitude of national leaders, it may be seen to the large public as some of applied restructuring of the current structure within the global or national economy. For Xi, the Chinese novel would offer the soil and implied value or social compassion for this long history of grand nation, but might be nationalistic well to rebut a common rationale for the global public. It would come little to influence that it perhaps lacks a quality of socialism advocacy if the book is merely a novel other than any social science or professional books. Hwang’s regard to the Tocqueville’s may contain a universal theory or viewpoint about the revolution and social condition. However, it could be limited to the worse political condition of China for the still lower per capita income, gradual economic disparity between the poor and rich, and their prevailing adherence with the economic equality on socialism. If we turn our attention to the western mode of developed countries, the econo- political framework devoted to the western industrialization perhaps would exhaust its all the genesis in stalemate. Nobody questions the precious idea of free market and financial policy to energize the national or international economy. FRB has tried their best through the decades to vibrate the national and global economy, and the IMF as well as the World Bank could gladly take a part to cooperate and collaborate. We, the global public, however, could share merely in reticence, accomplice, nodding or support, and general credence of their wisdom and theory. This attitude or intellectual perception would also be same about the modern prevailing political discourse. Now the Korean people generally do not think if any swift of governmental structure to the parliamentary system would bring any difference on the politics or their actual ways of living. They probably would be correct to know if the scheme is keenly related with the turn of modern democracy from the feudal system. The 104 context would be said similarly as the second and third generation narratives in the economic transformation. So I believe that the contemporary global public, in the mid of post modern realities and besides some of distinct groups or individuals, would be vastly concerned of the ethics, social justice or responsible administration than the insipid reiteration of the property and freedom of contract generalization. An assembly man Choi, who is a floor leader of the National Assembly from Sanouri said, “Korea is now on excessive democracy than its lacking or insufficiency, in response with the street demonstration of opposing party.” This comment suggests some of truths that Korean public would detest a stereotype of political narrative on the democracy and freedom, demand a professional ethics, and is more sensitive to the social justice, and pays a due regard to the responsibility of public administrators. Lee Kuan Yew, a respected charisma of Singapore, impressively addressed the Oriental virtues as distinct and precious through the long history (Postema, G. J., 2006). Eo-ryung Lee, a distinguished professor from the Ewha Woman’s University in South Korea, also emphasized thorough his brilliant academic career the Korea and Oriental philosophy, the strengths of Oriental values, and predicted a new cultural primacy of Orient in the new millennium. He commented, “The first millennium had been an era of Oriental dominance in the material prosperity and cultural superiority.” The second thousand years had been led by the Western power to embed the democracy and idea of free market in the world. The new millennium would be wheeled ahead by the Oriental influence where the ethics and values in the esoteric nature could be shared and expand into the universalized respect and followership (2006). For the importance of China, I like to revisit an above illustration pointing out that they imply their social minds except as basically variegated with their urgent needs to administer their state developmental paradigm. Among the aspects of principle, I assess that they sacrifice the liberty interest in trade-offs with the equality adherence. The social justice and conception of human rights would compete, but would probably find a point of compromise with the western concept given the near future on any sufficient material conditions (Donnelly, J., 2013). It also complies with their state foundation recently conformed (SEP: Human rights, 2013). That briefed, I suppose that the future academics would deserve a new enhanced focus on the studies of ethics, social justice and responsibility of public administrators than any other times. 105 Reference A Harsh Response from the Citizenry Against the Passage of Alimony Act (2013, Jan. 6) Chosun Daily, Seoul, South Korea Act on Early Childhood Fostering Program (AECFP), Korea Stat 12068 (2013). Audard, C. (1999). Anthologie historique et critique de l'utilitarisme, tome 1 : Bentham et ses précurseurs (1711-1832). Paris: Presses Universitaires de France – PUF. Cooper, T. (2012). The Responsible Administrator. San Francisco, CA: John Wiley & Sons. Crocker, L.H. (1980). Positive Liberty: An Essay in Normative Political Philosophy (Melbourne International Philosophy Series), New York, NY: Springer. Donnelly, J. (2013). Universal Human Rights in Theory and Practice, Ithaca, NY: Cornell University Press. Hicks, D. (2013). Dignity: Its Essential Role in Resolving Conflict, New Haven, CT: Yale University Press. Hunt, L. (2008). Inventing Human Rights : A History, New York/London :W.W. Norton & Company. Kranich, N. (2007). Equality and equity of access: What's the difference? Retrieved July 10, 2008 from the American Library Association Web site: Laureate Education Inc. a, (2013). Ethics and Social Justice "Equality and Equity: Applications" with Amanda Baker (approximately 6 minutes) Laureate Education Inc. b (2013). Ethics and Social Justice "Liberty: Applications" with Amanda Baker (approximately 7 minutes). Local Governments on the National Child Fostering Program (2013. June 19), Korea JoongAng Daily, Seoul, South Korea. Maccallum, G.C. (1993). Legislative Intent/Essays, Madison. WI: University of Wisconsin Press. Murphy, A. (1998). Reason, Reality, and Speculative Philosophy. Madison WI: University of Wisconsin Press (1996). Postema, G. J. (2006). Interests, universal and particular: Bentham's utilitarian theory of value. Utilitas, 18(2), 109-133. Reichert, E. (2011). Social Work and Human Rights: A Foundation for Policy and Practice, New York, NY: Columbia University Press. Stanford Encyclopedia of Philosophy : Economics and Economic Justice, Retrieved Nov. 2. 2013 from http://plato.stanford.edu/archives/sum2008/entries/economic-justice/. http://plato.stanford.edu/archives/sum2008/entries/economic-justice/ 106 Stanford Encyclopedia of Philosophy: Human Rights, Retrieved Nov. 2, 2013 from http://plato.stanford.edu/entries/rights-human/. Stanford Encyclopedia of Philosophy : Positive and Negative liberty, Retrieved Oct. 25, 2013 from http://plato.stanford.edu/entries/rights-human/. Supportive Act of Democratic Constitutional Rule in the Republic of Korea (SADCRRK). Korea Stat 12068 (2013). Universal Declaration of Human Rights, Retrieved Oct. 3, 2013 from http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. http://plato.stanford.edu/entries/rights-human/ http://plato.stanford.edu/entries/rights-human/ http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf 107 XVII. Ethics of Workplace and Entrepreneurship The Current State of Ethics within the Workplace Nobody would disagree if the contemporary society is on the basis of professionalism and organizational lives (Ethics Resource Center, 2013)). Most of post- modern citizens, probably on the mid-income status, would be amok of the smacks of bureaucracy and their occupational activities. This group often constitutes the prevailing ethos of society and vertebrate of citizenry. They often are ascribed, in most of paradigm, as sovereign people and pillar of national politics or economy, who are the center of contest that the national morals and conscience would reflex and abound around. They are any standard of political or economic issues with which the political leaders have to interact. Their predominant disposition would be embedded on the organizational lives. I consider that three of simple principles would govern their professional course of dealings and commitment, which are ethics, political responsiveness, and merit (Yeager, S. J., Hildreth, W. B., Miller, G. J., & Rabin, J., 2007). These elements are actually overwhelming and powerful on which the leaders and followers could rely. The elements could be on a varying extent in response with the types, size, structure and culture of organizations. For example, the political branch would require more of political responsiveness than an ethics while the private organizations often consider it more important a merit than the former two. The quality of each element also could not be the same where the international organizations often are based on the more universal and loose, but grand principle of ethics than the national ones. The latter could be more enriched in substance and comes in an intense interplay with the leaders and organizational members. In many cases, a condensed, definite-to- pursue, disciplinary and integral, but even nasty on the chances of corruption or static pleasure as in the kind of bureaucratic mazes would the ethics of national organizations be. We often are less experienced of the corruption from the officers of international government. A former IMF chair person, S. Kahn, would come as one example, but we generally do not see it any serious ethical violation. The national aspect would go otherwise if we would consume some time on the news paper articles or reports. The current state of ethics in the workplace, therefore, would hardly be simplified in any single paradigm of assessment, but requires a case by case investigation by the supervisors and researchers (Ethics Resource Center, 2013). It is, however, obvious that the three elements would fairly assist in gauging the current state of workplace ethics. The diversity could come as a fourth factor leading to define the ethics state of workplace, and related with the multiculturalism in leading and managing. This triadic would, of course, need to be substantiated from the inculcation of public value, organizational mission and goals, as well as the political or societal virtues. It would be dissimilar of ethics, no matter if it may be societal and even organizational, between the socialists and liberalists, although it can be sublimated, particularly within this rapidly advanced and compressed global village, into any congruence or sharing of basic human attributes. Conceptually, three elements are independent to lead our organizational lives, but the ethics could be comprehensive to define and matter with other two. The merit, which would be ultimate in any utilitarian perspectives, can plainly impact the shape of ethics. Consider if 108 the bottom line of meritless employees or organizational policy would generally be deemed unethical or unacceptable. The political responsiveness is one criterion to influence the ways of response to some specific challenges. It could be virtuous in some circumstances, and may, in other context, fail of organizational or employee’s reputation or right ways that the organization are obliged to do (Yeager, S. J. et al., 2007). The whistle blowing may simply reveals this aspect of ethical conduct. This type of employees’conduct can well raise a serious debate about the ethics. Hence, the ethics could conceptually be extensive to cover all the three, and the issues have to be what scope of due play needs to be ensured in a specific organization about three different factors. A KPO Issue about the Organizational Ethics A Development of KPO Issue Recently, Seok-yeoll Yoon, a branch head of prosecution office in Korea (KPO), was assigned an important duty to investigate a grave political criminal case involving the central intelligence agency (KCIA). His skills and expertise were bought by the chief of KPO, and called upon to work in the special team of investigation. He was committed and faithful officer to emphasize a neutrality and sanctity within the national exercise of criminal authority. A sinister officer, in his view, has to be punished in proportion with his culpable conduct, no matter who they are. That is principled and authoritative in the prescription of supreme law of nation, and must have fairly been cautioned by himself about any exterior influence. He, in ranks and team structure, is responsible to Yeong-gon,Cho, who is his senior prosecutor and may assume a mediating role between the investigation and higher ranks of political propensity. The case entails a sensitive issue about the legitimacy of last presidential election, and was disputed about an allegedly impermissible engagement to draw the support for the candidate of ruling party. During the course of his professional activities, he might not obtain a favor from Y.G., Cho about his suggestion to tackle more extensively into the core of a nasty or undue influence from KCIA. Not clear in public relations, the context might be led to drop a positive alternative, and eventually exploded with a sudden public announcement of S.Y. Yoon about the unethical command or implied oppression to frustrate the ambition of this junior prosecutor. They were called upon the investigatory hearing held in the national assembly, and a serious inquiry or defense had been exchanged among the congressmen and two prosecutors. The opposing party, Minjoo, likely saw the incident challenging and opportunistic to strip off the ethics of Sanouri and current administration. Y.G. Cho, as a supervisor of special investigation team would be a right person to encourage his subsidiaries as suggested by Yeager, S.J. (2007). He seems to abandon his role to ensure the criminal justice of nation, and merely said,“I alleged him to be neutral or reticent, but in no intention to influence the key investigators in responsibility.” For its social impact and worse public sensibilities, the department of justice (DOJ) began to exercise a supervision authority to impugn and discipline if any misconduct would be confirmed. About two weeks ago, S.K. Yoon was rendered to divest of his official power and status, and Y.G. Cho shortly thereafter announced his resignation. Reflections The episode briefed above brings a point of reflections on the current state of ethics in KPO, and concerning the general aspect of organizational essences, job satisfaction, ethical 109 perspectives, external and internal ethics pressure, likelihood of changing jobs, and so on. The context is esoteric involving the twilight strands of organization, say, quasi-judicial and intra-executive qualities. The criminal justice system on this concern would get diverse, but the Korean system may be generic or dominant. In some of national system, notably in France, the prosecution offices operate within the judicial preserve, and they need to officially report to the court with regard to the administration and supervision. In the socialist states, the prosecution authority is considered to execute the will of people collectively, hence, sees less chances to be reflexive about the individual or professional conscience and theory of humanly justice. The political primacy is absolute which profiles ahead of traditional concept concerning the proportionality principle or perhaps a common understanding of western concept of distributive justice (Laureate Education Inc., 2008). KPO would possess dual qualities so that the administration were integrated into the executive, but shielded from the political influence by affording an independent statutory term of KPO’s chief officer. It also is severed from the command line, i.e., head of DOJ, for the specifics of criminal investigation. It is wiser since the resources are fairly required to meet such great number of criminal cases in personnel and apparatus. The executive, as we are aware, are the sources to administer the public policy with a vaster resource than the legislature or judiciary. The quasi-judicial nature of criminal investigation also requires an independent ground from the executive, which offers the ground to create the current system on the national statute and decrees. For the special matters of politics or other sensitive cases, the statute also provides an independent counsel to be appointed by and responsible to the congress, who is not a full- time public prosecutor, but lawyers, who often are experienced in rich career or retired rank officers. The independent counsel supplements to ensure the sanctity of criminal justice, and the system followed the American model as we see in the Star case for the former president, Clinton, as well as for the Watergate investigation. As the nature of society is highly professional and based on the experts from years of study and apprentice, the ethics in KPO expected to exercise often would not diverge, but be coherent in the same tone or manner of response (Frederickson, H. G., 1999). That, however, would not always the case as we also expect. This kind of sensitive issues particularly could be suspected of whether it would be disposed in comport with the public sense of justice and the ideals of criminal justice system. The case was fairly exciting to impress some quandary of ranked officers, and the research from Yeager S.J. could be applied in terms of importance we can find in the supervision role (Yeager, S. J. et al., 2007). The encouragement of supervisor, C.K. Cho in this case, could have a high potential to increase, even forefront the ethical perspectives of S.Y. Yoon. It would be an easier case for him technically, but entails a delicate aspect of national politics. Hence, a senior supervisor’s role seems determinative, but could be escalated by discussion, consultation, and intimate collaboration. The kind of interplay between the external and internal ethics pressure could come fancied that the former would, in high probabilities, be enormous and demanding. Of course, the young society of public prosecutors in Korea, like the judiciary, had been active and is committed to advocate the professional ethics as central. But the bureaucratic maze in KPO can effectively screen its influence or unacceptable suggestion. They have been a source of intra-organization flak on the public criticism and misconduct of the KPO higher ranks. But it would often be post- incident voice in the remedial recourse and in the end to restore their pride or public relations. Therefore, the external ethics pressure other than the young society must have been rather pounding so that supervisor’s role seems essential to shield and encourage. An unidentified miscarriage within the team or confidential interplay seems to have increased the ethics stress 110 for S.Y. Yoon, who eventually behaved like a whistle blower (2007). Someone may accuse him of committing the kind of vagary and others perceive him as conscientious or loyal to his job demands. We can confirm that the communication is really a critical factor working to maintain an organizational integrity and uniform fashion to proceed. We may well reserve other elements, say, job satisfaction or employee job attitudes since, in this case, they have eventually been depraved on their professional path. They would feel hard pains, and even the likelihood of changing jobs should not be excluded (2007). This incident has to be borne seriously in the mindset of or ethical guides for the posterity generation of prosecutors. I mean that the feedback should be adequate to teach and learn about how much the supervisor’s role would be important for the reputation and credibility of public organizations. The Ethical Management and Entrepreneurship In this discussion, I like to survey the corporations of Korea about its ethical management, its current status within the Korean context, as well as one of great illustrations in view of the management ethics and its social impact. How do we connote the concept of ethical management. In the dictionary, it is defined that the enterprises are required to be responsible to the social expectations beyond the management and legal accountability. The concept demands the increase of moral quality and profile of enterprises and encompasses a set of moral conducts and anti-corruptive deals between the employees and counterparts in trade, bribery in trade, as well as support of cultural or social events, givings and charity activities in the contribution to the society as a whole. The theme of ethical management was supported by an increasing number of enterprises according to the statistics of Korean Management Association (KMA) in 2005 (Ethics Resource Center, 2013). Over ninety percents of largest businesses in Korea have adopted an ethics charter. These enterprises also enacted a scope of ethics programs and action plans to be implemented in their work place. To illustrate some, KTF daily aired the ethics education drama through its intra-firm network since Mar. 2005. Shinsekae developed the ethics index to address the challenges. Posco also began to implement the reward system for the reporting of an unethical conduct. YK had obliterated some nasty strands of salary which were designated as marriage, funeral and public relations expense. LG electronics has continued to offer an ethics education program since Feb. 1994, the year of ethics declaration. KMA conducted a public survey addressed to the member companies and KOSDAQ firms, which are five hundred and completed in 2004. The positive response about the need of ethical management ranged at 38 percents. Same survey conducted in 1999 was as low as 6.8 percents. In the 1992 survey, the reason for ethical management was reported to lie in the social responsibility of enterprises, which accounted for 92.2 percents (Frederickson, H. G., 1999). This rate declined to the point of 60 percents in 2004. This indicates that the increasing profile of ethical management could arise in the concern of profitability other than social responsibility or public opinion. The Ethical Commitment of Yuhan-Kimberly and Its Impact on the Entrepreneurship & Social Change Yuhan-Kimberly is one of corporations which produces the consumer goods for home use (Sung, S.Y. & Choi, J.N., 2010). It attained an international acclaim which made a 111 top ten list in the survey of Asian Wall Street Journal in 2003. The survey ranked 900 Asian companies in terms of worker-friendly firm environment. The market share and recognition of YK products were superior than any other firms, which would well be benchmarked as a world class quality. The national economy these years were staggering. The unemployed youths amount to 500,000 in number and the red credit poor also radically increased to the number of 4,000,000. The domestic market has been in deep stalemate. Under these crises, one enterprise, named YK, has a remarked success in 4 times of sales increase as well as 17 times of net profit between 1991 and 2005. All of its eight sectors of business have entertained a top share in the market. This company was created in the partnership with Kimberly Clark, a US corporation and YuhanLtd., a Korean corporation in 1970 (2010). The Korean public were pleased to witness its success. It fairly deserves a public attention since the IMF crisis in the late 1990’s and economic diminution afterwards had made no factors without any layoffs nor radical rationalization of business. In the survey conducted 2003, it was ranked sixth by being highly rated in the job satisfaction, trust of employees on management, and social change factors. Then what strands enabled YK to continue on its prosperity? Is this a guaranteed bank note to be applicable for many other businesses? Is it easier to benchmark the success story to implant its modality in other firms? We may ascribe its esoteric nature of corporate culture to its splendor of success. I consider it one of successful paragon in any glocalizedculturalism. First, the top management pursued in continuance and conviction that the employment realtions will make better to be stuck on the Korean mode of livings, i.e., four days weekly for personal pleasure and leisure (2010). It is certainly ethical to increase the merit of employees in the workplace. It is contrary to the general theme about management, say, as possible as low pay and much extent of work hours. It would be paradoxical and eventually proved effective in eliminating the low rate of factory operation, increase of inventory, and disgruntled labor union. Its strategic , but ethical aspect of decision can be epitomized in two prongs, i.e., four frames of work turn and lifetime learning. The workers in the production line are divided into four turns. In this frame, they work four days and get off the duty also for four days. The free days will be consumed to develop a personal amenities and learning for self-improvement. This way to deal can effect on the increase of productivity for the employer and job stability for the employees. This management strategy is ethical to bring a merit, social justice, and positive liberty of employees. It also contributed to the social change in the corporate culture of Korea, and serves the national economy as a paradigm of Korean entrepreneurship (2010). It is impounding to make the turn toward a congruence, harmony and coexistence, human value and pain sharing of worse economic conditions. YK actually offered the model in the end to increase the trust, reliability and consensus among the family, individual workers, and company. The understanding was serious in holding a human value and its employment status, and they preferred a sharing on employment other than layoffs. Second, YK management also advanced to propel a competition of ideas from the employees and friendly interchange between them and labor (2010). This requires that the management should be committed ethically to interact and cooperate, and also based on the social attitudes distinct in the Korean culture. This organizational culture and structure could give a lesson to other enterprises, and eventually led to the social change of Korean entrepreneurship. It could not come into any reality unless the management assumes toils and 112 sacrifice in conviction and authentic commitment on the trust of human resources and potential. That is because it requires an investment and mutual trust without a tangible short turn. The mindset is, therefore, the kind of social, humanistic, progressive which involves a courage, knowledge, as well as moralities on the side of management beyond a mere myopic management priority. This could build up the trust leading to the ethical management in their industrial and social commitment. The ethical perspective would turn as desirable while the external and internal ethical pressure could be moderated (Yeager, S. J., Hildreth, W. B., Miller, G. J., & Rabin, J. , 2007). The ethics stress would more be easily resolved because they were humanly interacted and based on the mutual trust. It is needless to speak of job satisfaction of YK employees and their chance of changing jobs (2007). The firm actually purported to convert the kind of physical workers into some intelligible ones, which made a profound effect on the social ethos of Korea. Kook-hyunMun, a CEO of this firm, termed this paradigm shift as a “knowledge management,” which requires to learn as well as to be creative (2010). It should be a critical lesson for the society and Korea, and the progress within YK is notable with so high rate of participation in the learning program. YL offers a compensation for the participants, and programs were neither limited to the occupation skills nor work-related. The humanity subjects and social science were offered to foster the personhood of workers as a democratic citizen. His management philosophy had not rested within a small scale of firm itself, but projected into the neighborhood. The environmental campaign, designed and pursued in his initiative, had impacted on the Korean society, in the least, the basic understanding of Korean citizens about that issue. He seriously perceived an interactive nature between the corporate and society in the whole. The internal turf to oppose his vision of environmental preservation arose since his plan requires a sum of budget. However, it had shortly been proved that the environmental and ethical concept of management could bring a positive consequence about the social change as well as the corporate interest. Reference Yeager, S. J., Hildreth, W. B., Miller, G. J., & Rabin, J. (2007). The relative effects of a supervisory emphasis on ethical behavior versus political responsiveness.Public Integrity, 9(3), 265-283. Frederickson, H. G. (1999). Ethics and the new managerialism. Public Administration and Management: An Interactive Journal 4(2), 299-324. Ethics Resource Center (ERC), Organizational Ethics Articles http://www.ethics.org/resource/organizational-ethics Sung, S.Y. & Choi, J.N. (2010), The Leadership of Mun, K.H.; Myth and Success of Yuhan- Kimberly, Seoul, ROK: HANSMEDIA. Hunt, L. (2008). Inventing Human Rights : A History, New York/London :W.W. Norton & Company. Laureate Education Inc. (20o8).Ethics and social justice. "Philosophical Roots" with Amanda Baker (approximately 11 minutes) http://www.ethics.org/resource/organizational-ethics 113 Maccallum, G.C. (1993). Legislative Intent/Essays, Madison. WI: University of Wisconsin Press. Reichert, E. (2011). Social Work and Human Rights: A Foundation for Policy and Practice, New York, NY: Columbia University Press. Stanford Encyclopedia of Philosophy: Human Rights, Retrieved Sep. 27, 2013 from http://plato.stanford.edu/entries/rights-human/ http://plato.stanford.edu/entries/rights-human/ 114 A Repository of Socratic Conversation Kiyoung Kim Posted Date: September 5, 2013 4:38 AM Hi. Domaneneicka. The organization would play an important role to nurture the boys and girls of America. It obviously would take the form of national system in branches and collaboration. Ethics in this case may involve a difficult educational issue on the conscience or spiritual cultivation of youths. The state of Alabama is notorious even to Koreans in the context of civil disobedience and other civilized concepts in disagreement or contention. You said the bond of youths with the grown-ups and aristocracies in the local community. How do you handle a possibly undesirable influence from the unverified indoctrination or ensure a sound system of youths to grow and learn? Thanks for your introducing a great organization, and I suppose that the organization may have a twin system globally. Regards.Kiyoung. Kiyoung Kim Posted Date: September 5, 2013 4:12 AM Hi. Derek. Thank you for the posting. Your organization seems interesting that the conflict of interest likely is self-adjusted. The board members, are payers and beneficiaries from the operation of company. It is likely a mixed nature of organization between public and private in terms of its commission and budgetary system. I guess that the income may be accumulated to the benefit of owners since it is a private company. Is the organization responsible to the shareholders? Do the board members work on a paid basis? What ethics, if any would be involved in deciding an issue of income distribution? Respectfully. Kiyoung Kim Posted Date: September 5, 2013 2:31 AM Edited Date: September 5, 2013 3:45 AM Hi Amin. Thank you for reading my post. The cause for and calculus from the troublesome sanction or war in other frame, never seems simple nor straightforward. As we share, Syria is a most persistent and acrimonious regime, and the international source reported its relentless continuance on massacre and persecution. Actually we know the middle Asian nations are religiously orthodox and in no probabilities being submissive or repentant if on the Koran. One factor is that they are culturally or religiously incurable to persuade. The other is that we can see some of imperialistic remnants to make them incongruent and less easily 115 defined. The branches or ramification in the society and their political interaction apparently confuse a point for some of constructive dismantlement or regime change. Despite their regime of theology, we can surmise a new wave of democratic group to reconcile with or reform the religious nature of absolute rule. These complicacies, as coupled with a Russian share with this country, perhaps led to a restrictive scenario of war engagement in the last announcement. In this nature of cases, we often consider a state sovereignty, international laws and coercive action based on the UN resolution, collective concept of self-defense, and so. In many cases involving the Middle east Asian states, however, the practical aspect in controversy and armed conflict seems not to be a sovereignty concept on the state, but likely stronger on religious sovereignty. Their pride for the Grand Islam or absolutism on Great Mahomet would not be misperceived if we have their contribution to the world civilization in medieval times. This historical heritage and political dominance at those times, as well as their aspiration to rise seemingly have aggravated their untamed violence problematic in the eyes of western intelligence. This is the case, therefore, typically deserving our attention between the morality or ethics and responsibility. Reason and social custom generally are a principal source of moral standard. One scholar also illustrated that a passion or intuition is another powerful source for embedding the morality within an individual mind. Their moral argument would not be dropped if they may lawfully kill the enemy of Great Mahomet. That is in contrast with Christian teachings, "Love your enemy." Most eclectic perception was institutionalized into the modern penal laws in a proportionality principle and reasonable sanction or penalty. I consider the Syrian authority may argue their moral loyalty, but I am dubious if their process is ethically or by ways of reason and law, tolerable. It biologically fails the global community and produced a mass of victims in cruel and inhumane ways. Ethics possesses the quality of system, institution, co-existence and humanly subsistence, interdependency, and organizational dynamism through the global community. Law might share a vast of these elements, and come closer to the requirement of ethics. Most of legal scholars consider the positivist law of extremist nature as illegitimate as in the case of Nazis’ dictatorship. And the quasi-religious nature of socialist laws also is subject to the criticism and international resilience from the western legal society. The context of present days contention involving Syria, in delicacies and flavor, emanates the confrontation between the West and Quasi-East in strands. They would not be a communist regime that they are Quasi-East. Their perception about the morality and political virtue are idealistic and absolute, but cruel and relentless, and likely disparage the balanced concept or proportionality element in human understanding. I suppose they are not identical in religion, but the tone or atmosphere overlap in impression. I consider the cause seems mature to ground a sanction, and some of practical points should follow in calculus. For example, one commentator saw the sanction is necessary to give a lesson to North Korea. The chances about some of possibly tragic military confrontation with Russia or China would also come into play. The capability on preemptive measure seems very encouraging on the side of US military. The consequence, however, may bring an eruption of retaliatory action in other region. We may agree on a little subtlety in difference from other cases in this region. I consider the positive factors outweigh a retraction alternative if Syria continues to miscarry the ethics of global society in their morality ground. Thank you for sharing. RE: Wk2Disc1KHedgepeth-main post https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505369_1&course_id=_3461476_1&nav=discussion_board&message_id=_24731891_1 116 Author: Kiyoung Kim Posted Date: September 12, 2013 4:22 AM Hi. Kristina. I agree that you seem very penetrating the ethics and morality. It seems applicable that the ethics often is required in the settings of workplace and so. It is precisely true that the extra- marital affairs seem to fail both of work ethics and morality. That is in comparison with the moral demand involving a before marriage sex. Those also would be an example in irony between the passive dictate and affirmative one. Not always though, the morality often appears to be given in some of passive dictate than the ethics. For example, we may construct some of work ethics to convert his religion from Christian to Muslim in the end that facilitates the multinational corporation operating in the Arab states. If not to respect the work command to convert, she may lawfully be dismissed without any violation of fair employment statute. How do you assess this powerful influence of work ethics to intervene a sacred domain of personality? The other context in quite opposite may be illustrated with the case of forceful coercion to foot on the Cross. Of course, this way would be an effective measure for the soldiers to distinguish from the Christian people on hostility, particularly in the war time. The job ethics of dominant military on the conquered land may not see it seriously problematic, but we would see this conduct immoral. I consider those cases show the adaptive or circumstantial nature of work ethics than the morality itself. In any case, we often do not say “work morality” although we talk about “work ethics.” I agree on your view. Respectfully. RE: Ethics and Morality Author: Kiyoung Kim Posted Date: September 12, 2013 2:45 AM Hi. Pamela. Thanks for the posting. I agree that the ethics and morality are a form of building good human character. They likely enable humans on consistency and pleasure to keep on their integrity. The breach of code of conduct contrary to the prevailing force of society would certainly disrupt a self or ego. This means a failure of self in a myopic implication and public education in the larger scale. Conscience is one strand between the two, but highly individualistic and might be a modern equivalent of contient from the Aristotle’s version. Aristotle said contientis not friendly with a virtuous agent or ethical administrators and governor. Hence the notion, conscience, seems more affiliated with morality than ethics, but could be occasionally not shared even in the name of morality. Then, the concept would be nearer to the religious dimension as we see the controversy of conscientious objector against the war. I like to know your thought among the three strands if the state could interrupt the person, say, a conscience objector, on the libertarian beliefs. If his belief is absolute and not swayed, is it permissible to abridge his or her libertarian way to build his character? How do https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505369_1&course_id=_3461476_1&nav=discussion_board&message_id=_24731423_1 117 you perceive if only the state has a definite say on morality? Any point in distinction in dealing with the issue between the liberalism and libertarianism? Respectfully. RE: Ethics and Morals: Kathy J Shelton Author: Kiyoung Kim Posted Date: September 12, 2013 4:55 AM Hi! Kathy. Thank you for the posting. Next time I will make it sure to be seen a sufficient font size in any untroubled vision. You seem to do very good on your nursing job and cumbersome issues faced daily within your job responsibility. I entirely agree that the ethics are presumed on some of knowledge and intent dimension, and get variable on the circumstances. You may retire that your business ethics may become vitiated, but the morality still stands at even the aged years. So the ethics discourse, as you stated, would be “….on the accord that your upbringing, schooling, and practice are congruent with what is ethically reasonable to deliver the healthcare.” Then we may have some sense if we juxtapose those, “Professional Code of Conduct,” “Code of Conduct for the Multinational Corporations,” and etc, which are against a non-denominated, “Code of Conduct. The latter would perhaps be a (human) Code of Conduct to define a morality. Given this perception, the ethics would be an enhanced concept, but be contested still from the morality. As you illustrated, the right to die in comfort and peace for the extremely painful patients would rise. I also favor a virtuous agent, like the doctor, Jack Kevokian, but unfortunately their practice seems excessively controlled by the government. Do you see the current rule of judiciary should be sustained between the medical ethics and human morality? Respectfully. Author: Kiyoung Kim Posted Date: September 13, 2013 10:46 AM Hi! RAE. Great post! I have enjoyed reading. We read that the state or political community in the Aristotle’s exists a priori from an individual citizen. This context of collective supremacy or presage of communal being is also found in his teachers, say, Socrates and Plato. For example, Socrates, in his dialogue with a friend at the imminence of death, had a high tone of preaching about the rightfulness to thank one’s parents and society. An individual can only be an esteemed being since he is bred and educated by the parents and society. He, therefore, objects to debase the legitimacy of death penalty, and thought to be honored if he were to respect the state order. This classic assumption, as basic in our dealings, would also be shared in the Confucianism of Orient. They conceived the loyalty and faith to their parents and state as a most ultimate beauty or fineness, hence, ethical and moral as inviolable from other social or individual needs. However, I consider this does not endorse a communism, monarchy or the type of totalitarian form of government. A dictatorship on the staticism, such as fascism, corporate or social nationalism, would also come defaulted as historically contested and proven. For another example, the former Soviet constitution set forth the duty of children to foster their aged parents as a public matter. However, I am dubious if that provision could https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505369_1&course_id=_3461476_1&nav=discussion_board&message_id=_24732129_1 118 yield any more effect than the lasses faire system about a faith to their parents. The constitution also prescribed the duty of denizen to serve the community in their highest of talent and capabilities. This virtue to view the community or politics supreme and not tempered actually has been dangerous on the historical lessons. Regarding the final sentence of posting, I agree that the libertarians may, in some cases, be penalized in accordance with the state law. However, it should be scrupulous as a matter of criminal policy. For example, anarcho-communism may be subject to the higher standard from the clear and present danger rule if we consider its possible evils on the sedition and insurgency. Hippie, one expression of libertarian idea, should have been considered in view of the constitutional right of privacy on one hand, and its harm against the society on the other. I rather, in this sense, advocate the delicacies and eclectic view between the state and one or agent. The balance test was rejected that the 1970 and 80’s Korea punished them for some days of imprisonment or treated as a petit offense. This is now critiqued by concerned intellectuals in Korea, who argued on its infringement on the privacy right. You also said that a possession of firearms is sanctioned in the State of Virginia. However, I am increasingly has some differing view that we may be prudent if we regulate more tightly for the public peace and against a high rate of killings from this context. Your thought?Respectfully. Author: Kiyoung Kim Posted Date: September 13, 2013 9:42 AM Hi! Amata. Thank you for the posting. I found your final sentence touching on the Korean context in 1950; “it would be unethical not to flourish nor fight for the pursuit of liberty and happiness.” Sixteen liberating nations, in due cause, willingly engaged to fight against the aggression of northern communists in Korea. They certainly were virtuous agents or countries gladly assuming the massive risk of sacrifices and casualties in the Korean war. Hence, the friendship between South Korea and US has been strong and continues as President Obama stressed in the previous speech of Arlington Memorial. I regret, however, that the northern regime accused South Korea and US as a parasite or an object to be stricken off. They do not merely say “unethical” or immoral, but they go further to define the relations in the plot of US imperialism or saw South Korea as the kind of watch dog to ensure the US interests in this region. It is paradoxical, however, that they are a worst of human right record, but mentioned a bit the kind of center-periphery theory. They are highly scientific, and, of course, critiquing on the capitalist economy between South Korea and US. But they persecute for their political objectives and actually is one of world least economies in the statistics. They stress on a state sovereignty, but sustain a generations of dictatorship. I consider the points of ethics differ in our case. I like to ask how we could reconcile the conflict of ethics if we borrow the Aristotle’s idea. If in a Korean case, how could we see the difference between a friendship of two countries and northern accusation about the state sovereignty? Respectfully. RE: Bravo! Author: Kiyoung Kim Posted Date: https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505369_1&course_id=_3461476_1&nav=discussion_board&message_id=_24792005_1 119 September 13, 2013 5:48 AM Thank you for Kathy. Your question is stimulating to see the nature of policy or administration expertise. Most of policy decisions, particularly in the federal system of United States, would involve a wealth redistribution or social justice issue. A scope of policy tools, say, programs, projects, action plans, contracts or partnership would have an impact to lead the society in some intended direction and often underlie an issue of economic assessment. While many competing interests or factors are considered, they often come secondary as any final point of deliberation. The federal government is grossly a provisional nature of state than regulatory one in the US. Hence, this aspect generally intensifies than the unitary form of government, such as Korea and Thailand. A dual sovereignty between the state and federal governments requires the public administrators more sensitive about the policy effect from their funding or granting to the state entities or other linked system between the funds and their obligations. Therefore, I consider the economic aspect approaches seriously as we see in the contention around 1930’s about the role and scope of public intervention within two types of sphere. This point of consideration, as you know, also matters with the political issues between the Republicans and Democrats. For example, the environmental policy may incur a different extent of federal measure, and reshapes the division of responsibility between the federal and state governments. Given the role and nature of public administration on this focus, this week’s topic dealing with the liberalism and libertarianism is thought very useful to see a philosophical foundation about the humanity, social justice, and economic arrangement. Also interesting is that we have a political party named and represented for the libertarian virtue in US. The controversy and departure seem to originate as centers on the politics, liberty and economy or property right. The Three Estates and their feudal interest fell to be contested in 18 th France, and the politics fluctuated although the revolutionary spirit of liberty and property right could keep sacred throughout. In my research, I can confirm that the libertarian school of thoughts or ideas obtained a practical feature in the turmoil of French revolution and Napoleon’s rule. Libertie is a French word to glorify the liberation of Napoleon perhaps against the prevailing hostility on Ancien Regime. A libertarianism seems rather radical than the liberalism with a principal point of identification between the justification of rule and liberty. Hence, the theme is fundamental in “politics vs. individual liberty” while the liberalism would come more squarely and in diverse aspects of humanity. In the course of history and varying politics of localities, the libertarian idea developed in different forms. More extreme is the anarchism, which may be shared by both capitalist libertarians and communist ones. Once I read the article about one of greater teachers in 1930’s US, who spent their later life in devotion to writings and growing plants in their garden zoned on their own. I could not tell his name instantly, but he, one of eminent socialist leader at that time, shows the pattern of their livings. In the historical progress on this ideal, Pierre Pourdon’s perception about the true nature of property and economy was articulated into the tenet of mutualism in the economic relations. The theoretical work of Peter Kropotkin also represents one ramification from the libertarian ideas, as read in his Conquete du Pain. He enlightened an anarcho-communism, which succeeded the tradition of liberty and personal autonomy. They, then, tend to develop a distrust on the mainstream politics and dominant frame of market economy. Their concept on property may be shown typically by their proposition of “personal property” rather than “private property.” They farm for their own needs and may get the products mostly handmade. They may, if necessary, meet to exchange their products, 120 but not for the commercial interests but on the mutualism to be lived in the liberty and against the hyper-structure of rule or governance. That might be similar with our discussion work in an analogy or feel if the context is non-commercial and mutual. Shabby, but intrinsic, and posed by some hyper pressure with any of grand topic or theory, but finally becomes liberated if to write and present. As a public administrator, the libertarian theory or tenet would likely lead us to some fundamental point of rethinking about the system, humanity, society and routine intoxication from the practices or series of policy decision. A most factor in reflection is that the public administrators are a trusted class to determine on serious materialistic issue and any desired outcome. They are also required to respect the popular will of society and act in the line authority or hierarchy in command and responsibility. Then the theory or tenet would go merely intelligible or indirect on their public responsibility. However, some points can also be raised in view of the bureaucratic ethics and their consistency or track unaffected by the switch of government or new directors. The libertarianism may, nonetheless, go dubious how much it could practically works on the policy makers or administrators. The Mondrean concept of market or Green peace group in Europe may be viewed in the libertarian ethos, and the environmentalism may profile in assessing the libertarian thought. But its influence would not be clear since it actually is a minor party or less organized group unlike the Republicans or Democrats. I hope this to answer your question. Respectfully. Author: Kiyoung Kim Posted Date: September 12, 2013 1:27 AM Hi. Susan. I agree that the consistency and integrity are important to behave as an ethical administrator. The design approach, in the Cooper’s proposition, may help the way that the administrators may figure out what to do, and to find a right fit to address the difficult ethical dilemmas. This serves standardizing the ethical practice in an amalgam as a professional agent, as leveled distinctively from the lay persons and based on the general requirements through a respective trait posed by each issue. The practice would likely be an operating manual against ad hoc basis judgment, and facilitates an unbiased and neutral administration about the ethical dilemma. Without the inconsistency and integrity, I believe that any unbiased or neutral administration would be impossible. Respecfully. Author: Kiyoung Kim Posted Date: September 20, 2013 10:56 AM Hi. Freda. I have enjoyed reading your thoughtful post. I agree that the external goods, such as power, money, and status, should be finely matched with the prospective officers, who possess a quality, character, enthusiasm and so. Galton once said that the respected leadership 121 has some of hereditary attributes. The version now may take some of differing concepts over the interplay between the internal goods and external goods. In the times of democratic rule, the educated citizens come to be eligible to practice their vision and conception of public values. That would be harder or inconceivable if we live in the Ancien Regime. You had been raised in Newark, which is your loved hometown. I believe that your attachment or enthusiasm as a public planner would not be questioned. It underscores that you also have a good temper with and respect for the standard ethics from the American Society of Public Administration. You made a point between the public administrators and elected officials. That generally is true as we learnt. For example, it would be same as Korea that the public administrators often times are convoluted from the lengthy approval contingencies. The red tape practice also would incur bureaucratic inefficiencies. However, the career experiences as a public administrator, later likely provide some of background to win the public election in Korea. The status would make a good career path toward an elected official, so that the values or principles may be shared, as you pointed, “political economy, social order, and popular sovereignty.” I am dubious, however, how much the elected officials value the concept of efficiency. Your thought? As Caroline Whitbeck stated, I consider the practical aspect seems important, and the administrators may be helped if to figure out what to do about the ethical problems. In his view, the kind of concept, say, defining a problem and generation of alternative solutions, gathering information would certainly be a working ethical process as we also learn in the Cooper’s model. The bureaucratic practice, then, could be a distinct preserve of wisdom precedent, at least, in each of administrator’s domain, and may serve a frontier-reshaping by the faithful and self-cultivating public servants. How much do you agree if the ethical issue is not merely a simple nature of judgment? Thank you for the great post. RE: Wk3DiscKHedgepeth-main post Author: Kiyoung Kim Posted Date: September 20, 2013 9:44 AM Hi. Christina. The example would be best when we consider an ethical issue. Often the police is viewed a top ranked institution as a matter of public credibility. The police make a high impression on justice and their loyalty for the public, and they are a useful source of cinema and novel stories. Some gangsters or rascals would menace the community, and a detective or special unit counters to finally capture a culprit or eliminate the rascals. To become a police officer had been taken highly honorable in Korea since it serves a social cause, relatively high income from the tradition of underdeveloped country, and seniority system or national pension benefit. A high share of my students aspires for the job, and devotes much time to prepare for the National Police Exam. The income context decreased since Korea is now one of developed countries. They could not be said as of highly paid now, but the decades of economic recession and the job stability of police would still be attractive as a good career alternative. These points are for the Korean police officers, and I wonder how the US context operates. We generally consider the level of pay rendered for the public employees weigh https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505370_1&course_id=_3461476_1&nav=discussion_board&message_id=_25127462_1 122 about the probability of bribery, theft, embezzlement and so. You may agree if one way to respond with the depraved or unethical behavior might be to encourage their public impression and their value for the community? Also your statement about a hardship of Chief can be shared equally with a Korean case. The police officers generally are firmly tied in spirit and morale that they may go unethically further to hide their subsidiaries or fellows. I agree that the best way to find a fit in the ethical decision making model seems a proportionality principle between the culpability and disciplinary measure. The issue still problematic would be how to educate the petit offenders, the small theft, since their propensity would be same as the large theft regardless of their theft amount in dollars. Hence, the sanctity of organizations is still possibly to be tarnished unless they are removed or cultivated to be reborn as a good officer. Your thought? Thank you for this excellent post. RE: Domaneneicka McDaniel: Discussion - Week 4 Author: Kiyoung Kim Posted Date: September 27, 2013 11:56 AM Hi. Domaneneicka. Thank you for your interesting post-modern prose or narrative on this stiff topic. It actually gets leading to the point convivially. Kindly allow to ask several questions. I wonder what the “political human rights” actually imply. Is it the same notion about a “political justice” that the human rights critique employs to satire a judicial policy on the emergent national needs, such as in the Guantanamo camp or others. You juxtaposed the political, party-political, and communal rights with the human rights. I got the point, but actually what does the communal rights mean? If you mean the political rights are the kind of suffrage right or participation to the government, those would likely be a classic human right. You perhaps indicate “power” than right? Then it should be placed in dissimilarities as you said, since both, say, the politics and human rights, had struggled. I also like to know if you think it better to exclude the social rights since they are “peculiar” from the modernization lawful value. Your thought?Respectfully. Author: Kiyoung Kim Posted Date: September 27, 2013 11:16 AM Hi. Amin. Thanks for your Great Post, and I enjoyed reading it very much. Your point that the human rights are a political progeny than any superstitious ways on sanctity would fairly enable to see the realities and need of human strife to watch the progress. Your view would also corroborate with the kind of legal positivism from Austin or Heart to pursue any ground for the validity of laws. They saw the sovereign command only could ground the source of laws. Suppose, however, that the natural rights concept and American legal realism marched forward its way through the world history. I am afraid if you agree that there would be a sphere which a mere political majority could not take a control over. A legal positivism from https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505371_1&course_id=_3461476_1&nav=discussion_board&message_id=_25460004_1 123 the German tradition also rather finds the validity and effect of law from the social custom or legal fundamentalism, as slightly different from Austin or Hart and your version of political rights. For example, we would like a freedom of expression and, of course, champion the right to know in the context of pursuit of happiness. Suppose that the majority congress shut down any opportunities about the books. How do you tolerate if you are an avid reader to know, or publication mania? Consider if the property rights are not ensured on easy confiscation and condemnation from the Eminent Domain without just compensation, how do you tolerate your loss of long works and efforts to the brand new house and necessities? In the normal situation, a sovereign command, social custom or legal fundamentalism would not do those vagaries unreasonably, but who bet from that, perhaps a least possibilities. There are also the case of extremities in the two World Wars, and Syria now undergoes a contentious conflict. The international constitutionalism, as seen in the context of UN, was pushed forward initially from this conflict of politics and reflection to restore. The concept, on the natural rights and inviolability of human rights do not negate the public reason to regulate the society. I am also not definite on the truths of natural rights, nor sure to rebut the legal positivism. My intent is to see the good or bad aspect of those assumptions. In any case, the social rights seem more accurately fall within the kind of political process argument. The death penalty issue or right to abortion, on the other, would rather feel more friendly with the kind of natural law tenet. The practical test would be if the Eighth Amendment about the cruel and unusual punishment could be abolished based on the political consensus. Some group of extreme natural law theorists would not endorse an effect of such constitutional amendment on the ground that it would transgress the inviolable or inalienable strand of human rights. The right to same sex marriage or that of homosexuals are not a social right within the prevailing concept of classification, but a liberty interest or civil right about the personhood or privacy. They could be argued for a legal protection in the courtroom when the state power infringes upon those rights. They may seek a legal remedy to invalidate the heterosexual public record of marriage or imposition of fines on the homosexual relationship. Respectfully. Author: Kiyoung Kim Posted Date: September 27, 2013 10:06 AM Hi. Derek, Amin and Eric. Your illustration about the recent stride within South Arabia and Somalia can signify the working concept of human rights. The right to participation in the government is a threshold to ensure a democracy. The implications would much be doubled if the women were afforded that right. It needs to be noted that the universal suffrage was achieved as late in early 20 th century, which included a woman. Both are critical to ensure an inalienable right to an equal freedom between the different sexes. We welcome the recent context of South Arabian achievement in this respect. Amin’s comment is also helpful to see the nature of theocracy in Middle East states. I wonder, however, how the religion in that region would merely suit a King’s control. As far as I know, the women in the Koran states can be honorably retreated from the western mode of livings. I rather fear if the enactment of participation right would go mere into any ornament or sham provision. The problem to ensure a genuine surge of 124 women within the government would lie in the affirmative action of government and society at large. I consider Eric’s point would be a prevailing view that the social rights would be seen a mere prescription or state goals other than right. They generally lack the quality to a concrete cause of action in the courtroom. They otherwise would operate in the public street to petition for a better law and desired congressional action. However, I also agree that they could be a right in some limited scope of social rights, for example, the right to social benefit in the context of ex post laws argument and loss incurred therefrom. As the society intensifies in communication and interplay, the right to education or free food program for the middle or high school students in Korea virtually approaches some kind of anticipatory right although not inherited from the God. So the distinction may blur in that perception as you said. Thanks for the post, and I have enjoyed reading it. Respectfully. Author: Kiyoung Kim Posted Date: October 4, 2013 8:44 AM Hi Nicholas. Thank you for the interesting post. The context of military administration would likely be considered out of the normal constitutional ambit perhaps because it has the nature of special relations in the purpose of organizational commission and structure. I am dubious if the same extent of freedom or liberty interest would be assured of the military personnel, students of public schools, and government employees. The scope of these people would be assumed to waive, to some extent as required to ensure the organizational commission and purpose, their constitutional rights. This theory of distinctive treatment against the normal civilians has been respected as a matter of law in Germany, France, Japan and Korea. This legal principle has increasingly merged into a unitary yardstick for both groups with some exceptions still based on the organizational goals and special needs. So the chances to censure a freedom of expression in the military are greater, yet to be deemed permissible. The court, if faced with the claims for the damages, corrective measure or invalidation of dismissal and other disciplinary actions, would, in many probabilities, apply a different standard in assessing the argument on the constitutional freedom. However, I consider, as Kathy and Dr. T viewed, that the commander had been seriously prejudicial about the freedom of expression and equal protection of laws. The comment of drill sergeant may be received as the kind of hate speech against the homosexuals, including himself. This personal anxiety would drive Sergeant Monk to make a countering statement as a “discrimination.” The commander might see it a prejudice against the minority group, say, homosexuals, who would be legalized in some state jurisdictions. These points would favor his version on this event, but the manner and final disposition, given its severity and arbitrariness, seemingly could not stand as Kathy and Dr T. perceived. Sergeant Monk may well claim to remedy his grievances from being relieved from his position and banned from the unit. Respectfully. RE: Discussion - Week 5. Main post Rachel Morrison Author: Kiyoung Kim https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505372_1&course_id=_3461476_1&nav=discussion_board&message_id=_25761913_1 125 Posted Date: October 4, 2013 5:37 AM Hi Rachael. Your view is fairly ambitious and encouraging, and the dealings you implemented as a supervisor proactively for perhaps a discrete religious employee are thought to be sustained. The dominant practices, however, are not mandatory unlike a maternity leave or child breeding vacation. They possess an economic quality, so that could be exchanged in the labor market. I suppose it no less meaningful, however, if we review or explore to apply the possibilities of a Bentham’s concept on the public value within the workplace we serve, say, subsistence, abundance, equality and so. I may not be wrong if the religious need is any more important to each personhood. I doubt if any subsistence or abundance, in this highly affluent contemporary society other than Bentham’s’ era, can be perfected without a religious, cultural or social strand. Do you have the authority, in any case, to shape a constant and organized command in this respect? Respectfully. Author: Kiyoung Kim Posted Date: October 4, 2013 5:15 AM Hi, Cornelius. I agree on your point about a due treatment of aged prisoners. The criminal justice system may serve several goals from the prevailing viewpoint, such as a retribution, prevention, correction and so. The dilemma comes in a similar context where Bentham sighed about the tension or incongruence between the public utility or value and sinister actors. Do you consider if a due pain for the criminals serve a human solidarity. It is a basic propensity and humanity strand to impose an extent of retribution against the culpable criminals. One day, I came across a newspaper article that the parent of Dodgers fan deplored on the sudden death of his son after a baseball game. He was struck on his head with the stool by other spectator, and the shock caused him to death. The perpetrator of that violence had been capture and investigated by the police, but acquitted instantly since the police found a self defense claim valid. The parents likely lost their sense of human solidarity, and actually that point was highlighted in the article. Of course, there certainly would be points of legal issues which lay persons could not apprehend. Based on the short introduction, however, I may get as same to the frustrated parent. Without a justice, the human solidarity seems hardly achieved. How much do you believe if the goal of retribution in the national penal system would explain for our justice concept? Is it a stronger point than other correctional or educational paradigm of criminals? How do you consider it better serving if the privatization of prison facility would be expanded? Respecfully. Author: Kiyoung Kim Posted Date: October 11, 2013 3:30 AM 126 Hi. Cornelius and Dr. T. The issue of same sex marriage recently rose in Korea, and according to the similar context of US. One male held a marriage ceremony in the public forum and in the gatherings for media coverage. After the ceremony, he announced to dispute about the current system of heterogeneous marriage only. As Korea adopted a recordation element with the public record as a requirement of legally valid marriage, they would be frustrated even if they completed a ceremony. Hence, they would have a valid ground to question the constitutionality of recordation system and lacking of system to support their case. As Dr. T said, the incorporation clause can enforce a respective state to abide by the liberty or equality requirement within the Federal constitution. The court perhaps would not be expansive in viewing the class of liberty subject to this clause. Perhaps only a fundamental freedom merits to require the state to be bound, such as the right to free travel. It is also a matter of discretion, and in limits from the constitutional empowering, so it is dubious if the Fed would advance to regulate the marriage affairs. If the controversy invokes an equality, and often the ways to be dealt, the 14 th Amendment can be applied. However, I suppose that the court would be less positive to condemn the system of respective state on this matter. Korea is a unitary state on the same ethnic background, but that is not the case of US. This would lead to respect each state authority in this kind of subtle privacy issue. I am not sure if the matter is any kind of federal nature or necessary and proper to advance the federal interest. Hence, the Fed, in high chances for the near future, is expected to stay reticent or indirect about this matter. Respectfully. RE: Discussion 1 - Gender and Equality in the Workplace Author: Kiyoung Kim Posted Date: October 11, 2013 2:57 AM Hello, Pamela. I agree that the gender equality has to be given a due respect in ensuring the workplace democracy. I consider that the pay equality and equal opportunity to promotion would be concerned most seriously. In the recent context, it is interesting that Korean congress women organized an ad hoc monitoring team by themselves against the male abuse of sexes within their House. In the past, one male congressman played on the demeaning statement in the informal meeting, which defamed a woman media worker. He was captured under the public criticism, and faced the challenges to be disqualified. In other case, a congressman subscribed to pornography in the official session of the House. The female team made an official statement to denounce such unethical conduct, and urged a proper response. As the society develops, the equality seems to develop in any extended complexity and diversity in fashion. Respectfully. Author: Kiyoung Kim Posted Date: October 11, 2013 12:25 AM https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505373_1&course_id=_3461476_1&nav=discussion_board&message_id=_26099276_1 127 Hello Dr. T. The policy makers often deliberate on the point of what standard would be proper to design or implement their policy frame and goals. As Phoenix showed, the earlier thinkers would face the dilemma among the democracy, equal quest from a radical emancipation, as well as public rationale. They even detested a pure democratic form of government on an extent of fear and distrust. The 14 th Amendment, as you said, could give a standard that the bureaucrats have to refer to administer the complex nature of public policy, say, efficiency, fairness and creation of public value. In the course of public policy process, it is notable that the 14 th Amendment even allows a different standard of review, say, strict scrutiny, intermediary one, and reasonable test. The suspect classification centers on this theory developed by the courts. In the paraplegic case, I consider it to fall within the last standard so that the policy makers entertain an ample scope of discretion. On the other hand, a policy measure to deal with the suspect classification, such as race, aliens, and other some, requires a more prudence on behalf of the congressional or executive officers. It would also compose a bureaucratic ethic and the responsible administrator shall mind to review. One interesting point would be the “business judgment rule” which relaxes the responsibility of corporate directors and officers. Their personal responsibility would diminish on this rule even if they fail to meet the strict standard of care and harm his corporation. This rule then could effect to encourage an ambitious decision and in reflection of often unforeseeable business environment. I doubt, however, this perspective can apply to the context of government if the damages may be awarded from the wrong measure of government. Korean jurisdiction strictly limits a personal responsibility of governmental employees on very exceptional cases. The business decision rule may go toward the same point of concern about the personal responsibility of public administrator, which, in conception, includes both sphere. If the business judgment rule is enforced strictly, both can converge in the extent of fining a personal responsibility, but still the government employees are entitled to the virtually free context of policy framing work. I am a little skeptical that the mid rank officials, who are principally responsible to shape a specific policy, likely enjoy the immunity, which is similar to the President, Judges or Congressmen. The business judgment rule was invented, in contrary force, for the directors of private organization, but can offer some lesson for the governmental context. My regards. Author: Kiyoung Kim Posted Date: October 12, 2013 9:45 AM Hi Cornelius. I agree on your point that an equal access to the court proceeding would say very much to ensure the justice and human rights. Indigent litigants may be afforded a special assistance about the court fees and other context. That seems particularly pivotal if the case incurs a serious criminal violation and potentially high punishment. You also suggest that the higher education and social or economic privileges can well lead to the different status of people. The court would once deal with the former context, but it is in their limit that cannot say positively to enact or implement. They would say only to rule on the challenged and extant institution. We often regret of no mandatory order to provide a free education or welfare program in the courtroom, but the kind of dealings should be around the politics or public 128 ideals. I like to know if any special treatment for the indigents, such as a free counsel or court-appointed attorney in the criminal jurisdiction or waiver of court fees in the small claims are afforded in South Africa. Your answer? By the way, please disregard the post mistakenly uploaded in the name of Derek. Respectfully. Author: Kiyoung Kim Posted Date: October 12, 2013 9:13 AM Hello Nicholas. It is not unexpected that Michigan people favor a fair competition based on the learning abilities, scholastic aptitude and achievement on the basis of application. It is also problematic as you suggest if the students consider it as a usual course of dealing for the favorable quota. Korea also is very contentious if any unfair, of course meant in the merit based justice, factors affect the admission policy of university. Particularly, most of us have the notion that the academics have to worship of merit and intellectual growth. The counter thesis may look, besides the points on the “affirmative action” from any positive minds and “reversed discrimination” from the negative eyes, to the academic freedom of university and autonomy about the school administration. How do you consider if the school administrators see it serve a bright line of goals and can administer on a reasonable ground? Could they claim their academic freedom to select their student on their own scale and assessment elements? How do you see any difference between the public and private universities? Respectfully. Author: Kiyoung Kim Posted Date: October 12, 2013 8:52 AM Hi Eric. Thanks for your interesting post. Your illustration about the disease and health service seems to allow us in a good comparison. One would voluntarily assume the risk if to be harmed from the tobacco use. Another person may be economically deprived that could not afford to defray their health expense. In terms of the equal justice to social welfare, the second case could be remedied if controversial in extent as in the Obama care. In view of libertarian concept of equality, the second case would be disputed seriously if to establish a prima facie case against the tobacco company, which claim the tort damages. How do you consider if the tobacco company claims their right to the original freedom on property and business operation? Do you see the argument plausible if the tobacco company has to be responsible since they stand on a developed footing about the technology and key information about the harms. In factors about a gross disparity in the economic power between the individual consumer and big tobacco company, does it comport with the social justice to compensate for the death of tobacco patrons? Respectfully. 129 Author: Kiyoung Kim Posted Date: October 12, 2013 8:46 AM Hi Derek. Thanks for your interesting post. Your illustration about the disease and health service seems to allow us in a good comparison. One would voluntarily assume the risk if to be harmed from the tobacco use. Another person may be economically deprived that could not afford to defray their health expense. In terms of the equal justice to social welfare, the second case could be remedied if controversial in extent as in the Obama care. In view of libertarian concept of equality, the second case would be disputed seriously if to establish a prima facie case against the tobacco company, which claim the tort damages. How do you consider if the tobacco company claims their right to the original freedom on property and business operation? Do you see the argument plausible if the tobacco company has to be responsible since they stand on a developed footing about the technology and key information about the harms. In factors about a gross disparity in the economic power between the individual consumer and big tobacco company, does it comport with the social justice to compensate for the death of tobacco patrons? Respectfully. Author: Kiyoung Kim Posted Date: October 10, 2013 9:44 AM Author: Kiyoung Kim Posted Date: October 18, 2013 10:13 PM Hi. Cecilia. I agree that the girls would be one source for the national income. They work on the house chores, but I am dubious if their work value is to be converted into the statistics of GNP or that in per capita. We may have some of conversion chart, but is it dealt so? I also agree on the serious challenge you mentioned about the male crime rate at his earlier years. Is there any tangible measure from the policy makers besides the adverts or oral encouragements? If it were to be so, what extent of probabilities do you consider that the law or regulations in challenge would be brought to the courtroom. Respectfully. Author: Kiyoung Kim Posted Date: October 18, 2013 9:53 PM Hi. Ahmed. 130 Thanks for the interesting post. The context can be applied at the global practices of bureaucracy and training scheme. We, however, would not have any definite sensibility in agreements. Korea once had the Sam-cheong Training Camp to refresh at an emergence of the militaristic rule in 1980. A socially esteemed people had to undertake a severe training in the group of criminals and innocent suspects arrested in the street. Korean bureaucrats often have a personal perception that his career path may be disadvantaged if to be committed to the educational institutions. This apprehension might not be shared with the US and other developed countries if they favor and see the life-time learning good to develop their career. In those countries, it may be one way to enrich their skills and expertise in the alternative for the long years track service in the key post. I am about Michel Foucalt on his churning of prison history. One other peer could be the idea of Pan-opticon of Bentham drawn to idealize a perfect prison structure. This way of approach seems to be required of public administrators. The educational institutions, often managed by key branches of administration, might be compatible with the prison setting, but I also see the tightened bureaucrats on his track also be seen as same. Is there any promotional discrimination if the Nigerian police officers with the experience to be posted into the School. Respectfully. Author: Kiyoung Kim Posted Date: October 18, 2013 9:17 PM Hi. Nicholas. I agree that the LAUSD’s initiative on IPad idea concerning the redistributive welfarism could encounter any public criticism. I suppose if the food program would not be universalized through the public high schools. IPad is an expensive equipment that even adults may not use it due to his short pocket expense in Korea. I am also at odds if the IPads are dominantly for the learning distraction purposes, although you mentioned that there would be some points of concern about the ESL. As we know, the state government has long exhibited a fiscal pressure over the years. Is there any independent basis to collect tax on behalf of the Unified School District? What purposes other than the redistributive welfare would underlie the IPad idea? Given Sen’s functional concept of equality or ambition- sensitive from Dworkin, equal access to the use of IPads may be agreed. However, I am not sure if the students were to be essentialized on the device in any ways about the learning or other educational activities. I consider if the poverty or homeless people should be in any urgent policy priority? Respectfully. Author: Kiyoung Kim Posted Date: October 26, 2013 9:19 AM Hi Ahmed. Thanks for the interesting post. Actually it would be a sad story that the girl was deported to Kosovo and allowed to be imported into France. As you said, the negative liberty is real and the positive liberty is the kind of power or capability as Sen noted. It has been really 131 ambitious to integrate the Europe, and place it under some of uniform public administration. The labor or social welfare policy could be shared in some extent, and its expansion may increase the positive liberty of European citizens. They now progress on the same currency of Euro, common recognition and transfer of academic credits, and many of common policies to facilitate the basis of individual freedom. In this context, the liberty must be positive other than negative. Hence, the level playing field may be assured in any uniform fashion, likely the evolution of US democracy and federalism, which enables an individual to be free to something. The privileges to interstate travel in the US may be applied to France and Kosovo, and the ambit of individual freedom would expand beyond the mere absence of obstacles. In other sense, it may be seen a negative liberty if we take a more universal notion about the human freedom to travel. Therefore, it seems relative in concept and direction. The practical issues in the European integration, I suppose, would trigger a wisdom of public policy and political consensus. It actually poses the challenges as we charted in the decades, including the financial crisis, popular dissention about the common welfare policy and disapproval of European constitution, and so. Given their integration, we agree that the ability to do something on behalf of Europeans would enlarge. However, the wealthier Europeans would be highly reluctant to endorse the European constitution in order to defend their property right and to keep the external constraints to be minimal, which would likely be as the kind of conservatives or libertarians are presumed. It is surely imposing if the positive liberty would encroach upon the public administrators. We could be aware of the dilemma and trouble if European leaders struggle with their tough policy agenda. Respectfully. Author: Kiyoung Kim Posted Date: October 25, 2013 10:41 PM Hi Cornelius. The subjective journalism also once practiced in Korea during 1970’s and 1980’s. In their view, the wisest man can select the information useful or not harmful to the society. His or her ideal or vision perhaps would be paramount, and generally negates the competition of ideas in the market. The basic premise on the free expression and first amendment right could be undue until some of leader’s pursuit is completed. Hence, the normal apprehension about the liberty and equality can dispense way which presumes an understanding “born equal under the God.” Galton’s way of approach about the leadership quality or Joseph de Maistre’s belief would be more powerful in their case. In Korea, the context of 1970’s 1980’s government is still in dispute and feud about the identity, ethics, and political ideals of Korea as well as its legitimacy among the historians, which hovers around the industrialism and democratic fashion of rule, such as the free press and expression. The vision of economically developed countries can deserve a first priority for some of radical critique as in the case of Bismarck. As Koreans lack the phase in history on the absolute power and national industrialization, say, Queen Victoria in Great Britain around the mid of 19 century or the State Premier Wismark in Germany under the Wilhelm administration, they generally see it inextricable that President Park and other militaristic groups may reign to lead the country in their ambit and vision. Other camp, often democratic adherents, perceived it critical on a dominant ethos of democracy. How do you consider your native country in this frame of analytical lens? Respectfully. 132 Author: Kiyoung Kim Posted Date: October 25, 2013 10:03 PM Hello Nicholas. Thanks for the interesting post. If people would often be staunch on their religious beliefs, it might go controversial. You just narrated the fact, and I see little basis to provoke any peer. It would be obvious that cutting hands is any cruel and unusual punishment. Stoning to death the women would also be intolerable for the eyes of normal humans, who committed an adultery. On the other hand, as the religious piety often shapes a dominant part of human subsistence as we believe in Jesus Christ, I also suppose it might be plausible for the Muslims in the course of justice administration to impose such a cruel punishment. The point likely underlies in the Eighth Amendment of US Constitution where the punishment should be humanly. We are surprised to see over 200 years of democratic history since 1789 Constitution has been gone as irrelevant with the Muslim states. Hence, their regime would be classed in more proper terms as theocracy other than democracy. In mere a shape of punishment, the Orient feudal history also exposes an inquisitive nature of criminal process, torture and cruel punishment. Hence, we also are skeptical if the “rule of man” could seriate the kind of Muslim, monarchy and communism. We also suspect what nature of human elements is governing or determines the dominant dimension of human as explored by German psychologist G. Freud. Some might be honest if the woman deserves a death who committed an adultery. That might saturate our intuition or the kind of id instantly. That might be most strong depending on an individual or even universally. In this case, the dimension of ego or in some cases super ego, which usually requires a reason and complex notion of phenomenon may get left secondary for them. In Korea, there has long been a debate about the abolition of death penalty. Often the voice of recognition had prevailed and the abolitionists failed to achieve a popular support. A logic and metaphor of advocates on the death penalty rely on the injustice between the perpetrator and victims as well as honest pathos of humanity about the rightfulness of retribution. Hence it involves points of concern covering the criminal policy and justice system, legal pluralism, the tension between the natural laws and positivism, and so. In any case, we may be wiser not to intervene a domestic jurisdiction or internal affairs of nation. The problem may likely be developed into the breach of public peace or harms against the international community. The notions may not be easily defined, however. Nonetheless we may know some course or pattern in the last half century. I also agree on your bright comment about Turkey. It is a bigger country which probably possesses the quality to take a leading role in the advancement of region. In my native country, the saying is “if it is small, it would more likely be cruel.” Respectfully. Author: Kiyoung Kim Posted Date: November 2, 2013 4:17 AM Hi! Rae. 133 You pointed to a serious issue that the e-communication or business could create. I also share the fear and human indignity which the abusive or unconcerned management decision can bring about. While the ethical standard could not be strictly required of private organizations, the ethics and responsibility of business manager likely are only recourse the public could rely on. Along with the invasion of privacy issue, the e-business grossly is not amenable to public controls so that the business entities often are not in the corporate form, but largely limited liability corporate. A notion or value from the concept of fiduciary duty and other traditional ethics embedded on the partnership could easily dispense away. A tax evasion or other aspect of unethical management including the privacy issue actually is challenging. How do you consider any effective way to remedy this phenomenon? How much the education and training program about the entrepreneurship could save this predicament if it were to be mandatory? Respetfully. Author: Kiyoung Kim Posted Date: November 2, 2013 3:48 AM Hi! Phoenix. Great post to see our reality. The tendency of employers on the incentive or bonus system is really awakening if the positive controls often could be acceptable. Some of firms in Korea, often on an advanced footing, also follow the kind of US employer’s practice. It seems to permeate to develop delicate grievances about the liberty and equality within the workplace. As the private management largely could go in his own judgment, it might discriminate the smokers or other nonconforming workers to the organizational policy. The employers in the US, concerning the labor relations, would be the kind of beneficiaries who are often unregulated or less intervened by the government. You hinted that the policy would be motivated by the cost benefit calculation. It may work to preserve the workforce in quality standard. However, there could be some of socialization issue if it could discriminate or infringes directly or indirectly with the liberty of person. Some may think that smoking is one way to pursue the happiness as critically related with the freedom of lifestyle. It could be patently offensive if his peer is afforded a large bonus. He may feel alienated or even punished if the workplace is any whole of his life context as often we conceive. In a disappointment, he may head around to rely on the lebens philosophie or murmur why we live. The subjective philosophy of vitalism or importance in the immediacy of experience, as held by Bergson, may have supported his long years of work life, but eventually proves devalued objectively by the managers. Managers would be a strong rationalist to support the organizational policy, but the employee’s personal dimension was affected. In any case, we often take it as granted that smoking is worst in the society. And this view likely is prevailing. As a smoker, I also would not recommend others to smoke. How do you consider why the public insurance has yet to be mandated to compensate the victims of smoking and how the incentive scheme could expand in the near future. Is it to be planned on the public enterprises or governmental branches? Respectfully. 134 Kiyoung Kim Posted Date: November 1, 2013 10:30 PM Hi. Trudy. Thank you for your practical points in the posting. The federal government, especially the court, seems to impose a rather strong policy in the purpose for some uniform fashion of FELA in the civil proceedings. While the civil procedure would dominantly be a creature of respective state and Erie doctrine were to be in a higher profile, the concept of federal common law seems to be on track about the labor dispute. I am concerned of what you actually mean about “At Will” concerning the state government. Often we have a notion on the Federal Supremacy between the state and Federal governments. How much were it to be variegated if the issue underlies the employment relationships other than the traditional scope of human rights? Is it really true that the state government entertains so ample a discretion or autonomy to manage the labor issues on their own? The employment at will doctrine, in my surmise, could be restricted to the private nature of contract. Your thoughts? Respectfully. Author: Kiyoung Kim Posted Date: November 9, 2013 3:53 AM Hi. Eric. Your quote of Slotes seems to fairly lead us to any bright line of conceptions about the principle. They would be pivotal to sustain the ethics of public administration, say, equality of liberties, difference principle as well as public value for the maximum advantages of all. We would be bereft of human resources if we end at this point. Hence, the ideals or ultimate principles seemingly could be played out only by ethical leaders. The aspect of ethics would likely be viewed as a litmus test making it distinct from the pure theory of political power. In this context, your illustration of mayor’s failure on the ethical standard would be an ingredient in this area of concern. Often the argument or perception seems so persuasive so that we generally are empathetic on the role of capital or businesses and government. They are key engineers and actors to address the status and vision of society. Hence the leadership or entrepreneurship discourse would flourish, and new technologies have advanced the paradigm of business enabling the individuals to form a small or solo business than any other times. Some of small enterprises based on the electronic creativity now could earn a tremendous amount of dollars just on a few work in the internet paradigm. Now the ethics lecturers could attain a social popularity, manage their consulting service, and make a profit. Therefore, the ethics of public administration needs to be approached beyond the traditional form or narrative. For example, e-ethics can be discussed. However, still the check and monitoring context of civil society seems to come into play despite the diversity or pluralistic trend of ethics. A biological environment of industrialism concerns an imbalance in power between the big and small businesses. The monster businesses in Korea, which are small in number and what are called chaebol, could well be compared to the government in terms of 135 influence and social prestige. I consider two alternatives can be said about the ways to check and monitor the ethics of administrators, i.e., national and international. Some cases may do good on the popular recall system of elected officials. The civil pressure and the role of press can also function leading the government and enterprises to see a right way. An enactment of ethical code or law would be an immediate way to address the issues as in the international code of ethics required of multinational corporations and the anti-corruption laws as nationally and internationally pursued. With regards to this problem, OECD guidelines would be useful, but the progress seems not to be remarked in each national context. A bad aspect of international approach would be less practical to penetrate the issue to some root basis. Is your case one time incident or over long time? How would the local system operate with or without the popular recall? Is it the country which does not have an anti-corruption statute unlike the US? How much is it serious within the national criminal policy? Recently many beloved entertainers were seriously condemned in Korea who had a shot of propople, the kind of cocaine. Respectfully. Author: Kiyoung Kim Posted Date: November 9, 2013 3:41 AM Hi Pamela. I agree that the criminal justice system is another battle ground for the social justice besides an econo-political contention. Stand your ground laws had also been debated, and the attributes of each nation would lead to a different design in some area of criminal policy. Given the sparse populace and diversity in demography, it might be wiser to expand the legitimacy and more space for self-defense. That could differ in Korea concerning those factors, as well as particularly on the right to bear arms. The culture and passion then would also distort the criminal justice in a variegated form. As much an extent of similarity with the model penal code could be one alternative to respond with the criticism. That could, however, face the challenges from an independent state ground. Hence I suppose it fairly difficult to assuage for social justice. In Korea, the criminal issue provoking the social injustice would be a burden of attorney fees. In sayings, “The richer being acquitted, the poorer should be found guilty.” It might be seen as some of Voltaire-like prose in some dereliction of 18 th century common law court on its delay, barrier from the nobility, masked judges of self-interest or social sections. A recent trauma would be the group of Korean superrich who was alleged to commit a fraudulent accounting and embezzlement. Unlike an Enron case, they often have not been delivered a serious sentence which disrupts the public sense of justice. One example to be welcomed, however, was a heightened frame of criminal penalty against the bribed government officers. It was achieved by the amendment of statutes. In the Korean context, the legislature has seldom been criticized because of the wrong or unreasonable criminal policy. The judicial branch had been otherwise. How is it in the state of Florida? Respectfully. RE: Wk10DiscKHedgepeth-main post Author: Kiyoung Kim Posted Date: November 9, 2013 3:33 AM https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505377_1&course_id=_3461476_1&nav=discussion_board&message_id=_27312971_1 136 Status: Published Hi Kristina. Thanks for the interesting post. I also consider we often face with the challenge between one’s fair share and strict egalitarianism. Actually how we perceive or comprehend one’s fair share entails a tack of points entangled with the social ethos and system, individual virtue, culture, national moralities, and history. As the state governments in US are debted across the nation, it might trouble if not successful to pass the bills. They perhaps could no longer collect more money from the tax payers. How do you consider if the bill would be proposed in the next time? If in some greatest materialistic affluence or worst level, it seems that a strict egalitarian argumentation may prevail or serve as in decadence or communism. However, the concept of justice and one’s fair share could not be automated to sustain any level or quality of welfare provision. The kind of ethics dialogue may be similarly required, beyond the moral administration, of the deprived group or individuals if we are a part of capitalistic industrialism. In this line of thought, I suppose that the moral capitalism and bureaucratic ethics from M. Weber could make some of insight. Respectfully. Author: Kiyoung Kim Posted Date: November 16, 2013 3:54 AM Hi. Gerald, I agree on the point that the employers are actually a prime authority to manage the scope of issues on his business. It bears a proposition of modern human rights about the property and economic freedom. However, I am dubious if the employers are so afforded both with a tax benefit or other governmental incentives and their autonomy of decision still intact. Phoenix’s view rather seems practical that the equitable quota may increase a mutual interest in the society. Some aspect in your viewpoint may imply some of policy failure in effecting the desired ends. The public may prefer a more prudent policy design which depends on the nature of business and some of mandatory trade between the incentives and hiring quota. The vets may not be inferior in certain jobs or businesses. Those may be targeted in primacy and as mandatory. Simultaneously, the policy design in other area of jobs may take its scheme as experimental and relatively expanded as well as in the option to choose between the incentives and hiring. I mean that a pursuit to the end consequence needs to be ensured, and that it seems not even economically meritorious to dump all the cards to the employers. Your thoughts? Thank you for the thought provoking post. Respectfully. Author: Kiyoung Kim Posted Date: November 16, 2013 3:49 AM Hi. Eric, I agree on your point that the public education is sacred and deserves a due regard on its autonomy, faith and commitment. The unethical behaviors of teachers are really surprising, 137 particularly because they are educators as responsible to breed their students in any exactly opposite way. A cheating is unethical which would neither be controverted nor granted an excuse not varying with the organizational culture or societal expectations. I may add some more about a cheating in the exam context. In Korea, the TOEFL test regularly has long been administered, and some occasion suffer a post-measure null due to a cheating or impermissible conduct of the Korean test takers. A small allegation for the misconduct of other Asian countries also offer a basis to null the whole context of test. Other innocent test takers in this case may feel or ascertain they performed well, but has to obey the ETS decree of invalidation. That may comply with the requirement of justice since the test must have been stained in the whole. However, it may be compared with the Atlanta incident that the TOEFL case failed to deliver a justice specifically unlike that suited for the unethical and cheating teachers. This organizational policy of ETS was not questioned expressly by public or the group of test takers, but often creates an unidentified stigma for the foreign English students or test takers. The test takers could well be disposed that they are collectively distrusted or prejudiced from the ETS’ discrete dealings than the normal justice administration. I am not sure if they are refunded of the test fee. However, it would be obvious that the innocent test takers incur other costs or loss of time, effort and opportunity. The organizational culture of ETS may come reasonable as differed if it involves the international context of administration. I also suppose if it may be one example of segmented equity Frederickson presented. However, I verify that the universal quest for any more refined distributive justice comparable to the domestic nature is fairly strong in Korea or perhaps other countries. A discipline or sanction should be for the unethical or cheating test takers, not for the innocent others. Your thoughts? Respectfully. Author: Kiyoung Kim Posted Date: November 16, 2013 3:00 AM Hi. Susan. Thanks for raising a sensitive issue. A pay rise or public insurance is certainly the point of primary concern the wage workers attend with. As you agree, the response from Phoenix seems realistic and plausibly addresses our current status. A unionization would serve the social justice and equity, which, however, should be economically inefficient and often felt the kind of feasant to merely reproduce. I would be a middle income earner in Korea, and pays much of taxes and public insurance in draining my gross amount to 70 percents in net. I am doubtful if any richer class will pay more than me. The social injustice or inequity is actually squeezing and one of power games in the society. I am merely strolled around several points as instantly inspired. First, the core concept of “competitiveness” has to be questioned. This concept thrills the capital, and they tend to accumulate their income or revenue for the future risk or some more profitable alternatives, and so on. That could distort a more desired status of social reproduction and can marginalize the worse class. We often rest on the idea as quai-religious, “natural selection or survival of fittest,” but I may suppose that the tendency on the capital is never a matter of nature, rather a mere superstitious interplay on the mutual distrust among the capitals and competitiveness enslavement. I consider a social consensus could be negotiated or turned into any reality. Second, we can have an idea that the earlier capital was absolutely subjected to the Royal control. The Royal 138 charter has been only a ground that they perform the commercial activities as we see in history. Now the logic and hierarchy were overturned that the narrative of economic freedom overwhelms (i) intellectually the concept of sovereignty, (ii) practically political power and (iii) ethically public virtue. A worse aspect of monopoly and dominance in the earlier charter enterprises now remains, but the state control or fundament has likely suffered a disrepute or been neglected by the economic power. Third, we would be wise to retrospect a potential of corruptive practices, which may be embroiled between the political power and capitalists. Of course, an enhanced ethics of public administrators across the global jurisdiction may get those incidents rare, but still the kind of transparency is one point of contention that the global enterprises often see as a barrier. I am interesting to know how Wal-Mart, the kind of largest and famed business in the world would run without the public insurance for their employees. In any case, I may feel not incorrect if to see the problem between the physics and humanity or society. In some level of inertia on the capitalistic wake of development, it seems to turn not economic or materialistic, but physical. It is paradoxical as if the fortune global businesses might be on a fetishism with the kind of public highlight, to see their art concept of product, show girls besides the brand new car, journal ranks of business size, business story or ads, but possibly in the sacrifice of employee’s basics. My regards. Author: Kiyoung Kim Posted Date: November 22, 2013 8:50 AM Hi. Rae. I agree on your point that the ethics could make it different between life and death. We have bad cases in Korea that the basic rule of corporation, for example, a strict requirement about the division of ownership and management, were disrespected. Owner managers have to be ethical on that point, but some of them had, in many occasions, were criminally punished because of the embezzlement of corporate funds. The ethics issue would be one of popular corner in the news section about the bribery, sexual misconduct, embezzlement, and so. The current state of ethics in the workplace perhaps had never improved over time. The internet or new mode of livings also seems to foster a growth of ethics inertia or callousness. Today, we were reported that some video game was developed to depict a killing spree in the public school. It was restrained to distribute from the public reason. The kind of video games may do good for a leisure time, increase of active brain or so. However, it seems also ill on many of human or mental aspects, and particularly concerning an ethical strand. I consider, in the alternative, that a practice of meditation, such as seen on the Buddhists, could help to develop the mental or psychological status of youths and employees. I also share some of incurable realities, in regret as Pamela hinted, that some unethical actors or employees would grin in the hidden side of organizations. I believe, as you implied, that the successful leadership most always would be a triumphant about the ethics issue of organization. Thanks for the interesting post. Respectfully. RE: Workplace Ethical and Unethical Author: Kiyoung Kim Posted Date: https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505379_1&course_id=_3461476_1&nav=discussion_board&message_id=_27895485_1 139 November 22, 2013 8:43 AM Hi. Pamela. Thank you for the current state of ethics in Florida. We, Koreans, have a same story about the dress attire, but in some different concern. The government regulation was enacted about years ago that the employees could work in no tie and short pants during the mid of summer time. That personal appearance or workplace scene may militate against a decent or loyal impression of public employees, hence, could make them less friendly with the public or clients. Of course, some opposing views sustain its informal or soft imagery as acceptable. In any case, it was considered to bring an advantage that the government can reduce a power consumption during the peak season. It also was viewed to increase a personal autonomy of public employees. I have been surprised to know that Korea is fairly short of power supplies, and the price will be adjusted upwardly for the industrial use of power. The ethics of workplace often would be thought in view of the social accountability, but could be malleable by a combination of external or internal conditions. The ethics code could be creative to double the public value depending on a specific leadership role, which leads to “one stone, two birds” as in the Korean case, i.e., the good public relations and economization of cost. By the way, how does Florida regulate the dress attire in their ethics code? Respectfully. Author: Kiyoung Kim Posted Date: November 23, 2013 4:15 AM Hi Rachel. Thank you for the insightful post. I agree on your view that the policy decision making, often reshaping the social attention with a funding and allocation of resources, would draw a new direction or public good, and hence social change. I consider the environment and national health would be two of most intense focus or contention in the allocation of national resources in US. It’s most advanced profile would perhaps be pioneering, and would later be contaminated into the second group of countries, such as Korea, China, and other new developed economies. The concept may penetrate a terminal of enterprises or firms as we see in the enhanced standard of environmental regulations, for example, Green Mark or others. Korea, under the lady president of administration, now champions the concept of creative economy. It is the kind of puzzle for the policy makers and concerned intellectuals how this leadership focus would bring a social change in Korea. I suppose that the policy makers or leaders would be more competent or ethical if to have a level of awareness about the nature of product, consumerism, decency of human subsistence, and others. For example, there is some doubt if we were to be too generous on the GMO products. The health care system would reflect on the national ethos and possesses the general nature of public good. How we could accommodate it in view of the economic terms would be serious and contentious. I may ask how the policy would progress in the prospect. Is there any chance that the Obama care would be revised? Respectfully. RE: Domaneneicka McDaniel: Discussion 2 - Week 12 Author: https://wa.elearning.laureate.net/webapps/discussionboard/do/message?action=list_messages&user_id=_166828_1&conf_id=_602881_1&forum_id=_1505379_1&course_id=_3461476_1&nav=discussion_board&message_id=_27933344_1 140 Kiyoung Kim Posted Date: November 23, 2013 4:12 AM Hi. Domaneneicka, Your post, on a prose-tone, has to be praised to epitomize a cynic, but veritable essences which we acquired in this term. Your mention, “the vicissitudes trade and industry and national globalization, environment fluctuations and the inflexible antagonism for advertises, deteriorating accepted capitals in the appearance of increasing inhabitants, and developing difficulties of transformation” echoes, and frontiers a long term reflexes on the mind of public administrations. As we consider, the Annalesschoolfrom F. Braudelor other perspectives, for example, Kontratief cycle from Russia allows some time to repose and recourse. Of course, we may see some of lament or criticism from the transnational ideology adherents, notably E. Hobsbawm, against the Annales school and so. I consider, however, that a long projected mindset, as practical and curtailed from the pure ideology, may work in some of persuasion and verity. As you said, the vicissitudes have to be charted seriously to unearth a public value and rethink the points of philosophical reflection. I consider OECD, UN and other science organizations would contribute much in this aspect. For example, the suicide rate compiled by OECD reveals Korea is a worst country. That would certainly be not the case in decades ago. What that long term trend on the suicide rate imply for the policy makers and administrators? Ideology, advertises, transformation may constitute the part of engines or dynamic factors for the policy makers, and could be a precursor to common alteration as you said. In other side, we can see a static, the kind of structural, long term science or assessment to make us on new plane or refurbish. In the progress, I consider the ethics or social change would be ensured a more focus under the circumstances where the econo-political narrative must certainly forge and require. Thank you for the interesting post. Respectfully. Reference Kim, Kiyoung, Fiscal Administration and Public Sector (March 22, 2015). Available at SSRN: http://ssrn.com/abstract=2586039 or http://dx.doi.org/10.2139/ssrn.2586039 Kim, Kiyoung, The Relationship between the Law and Public Policy: Is it a Chi-Square or Normative Shape for the Policy Makers? (September 10, 2014). Social Sciences. Vol. 3, No. 4, 2014, pp. 137-143. doi: 10.11648/j.ss.20140304.15. . Available at SSRN: http://ssrn.com/abstract=2577832 Kim, Kiyoung, The Leadership of Korean Universities: A Case Study Concerning the Chosun University (March 30, 2014). Science Journal of Business and Management. Vol. 2, No. 2, 2014, pp. 50-66. doi: 10.11648/j.sjbm.20140202.12 . Available at SSRN: http://ssrn.com/abstract=2577828 Kim, Kiyoung, A Promenade on the Ethics and Ethical Decision Making: Should Chae be Botched from the Korean Public? (October 1, 2014). International Journal of Advanced http://ssrn.com/abstract=2586039 http://dx.doi.org/10.2139/ssrn.2586039 http://ssrn.com/abstract=2577832 http://ssrn.com/abstract=2577828 141 Research (2014), Volume 2 Issue 10, 15-23.. Available at SSRN: http://ssrn.com/abstract=2577806 Kim, Kiyoung, A Reform Agenda of WTO Revisited: The Elements of Public Administration and International Organization (December 1, 2013). International Journal of Advanced Research (2013), Volume 1, Issue 10, 634-648.. Available at SSRN: http://ssrn.com/abstract=2577787 Kim, Kiyoung, Amidst the Temper Across the Equality, Equity, Ethics and Responsibility: A Stymied or Pondering Administrator? - A Little Highlight on the Concept of Equality (September 1, 2014). Management and Administrative Sciences Review. 3(6). 909- 921.. Available at SSRN: http://ssrn.com/abstract=2574739 Kim, Kiyoung, The Strategic Planning: Some Dangling for the Socio-Historical and Organic Lives (September 1, 2014). Management and Administrative Sciences Review, 3(6) 845-857.. Available at SSRN: http://ssrn.com/abstract=2574732 Kim, Kiyoung, The Constitution and Tripartite System of Government: From the Mutiny for the Limited Government Through the Interbranch Subtlety. (September 1, 2014). International Journal of Advanced Research (2014), Volume 2, Issue 9, 392-401. Available at SSRN: http://ssrn.com/abstract=2574711 Kim, Kiyoung, The Separation of Powers Principle: Is it a Lynchpin or Pushpin for the Voyage of American Public? (August 1, 2014). International Journal of Advanced Research (2014), Volume 2, Issue 8, 887-895. Available at SSRN: http://ssrn.com/abstract=2573560 Kim, Kiyoung, Theories and Tenets: An Impalpable Troll for the Policy Makers, Research Officers and Administrators? (March 4, 2015). International Journal of Interdisciplinary and Multidisciplinary Studies (IJIMS), 2014, Vol 1, No. 8, 30-50.. Available at SSRN: http://ssrn.com/abstract=2573526 Kim, Kiyoung, Human Rights: Are They Just a Tweak for the Policy Makers or Administrators? (March 3, 2015). European Academic Research, Vol. II, Issue 6, September 2014. Available at SSRN: http://ssrn.com/abstract=2572951 Kim, Kiyoung, A Case Study Concerning the Strategic Plan: V2020 of Chosun University (.October 20, 2013). Science Journal of Business and Management. Vol. 1, No. 4, 2013, pp. 43-57. doi: 10.11648/j.sjbm.20130104.11. Available at SSRN: http://ssrn.com/abstract=2572943 Kim, Kiyoung, Two Illustrations from South Korea and Some Reflections About the Public Administration Studies: Are We Granted to Pillory the Ethics or Social Justice? (September 2, 2014). International Journal of Philosophy 2014; 2(4): 48-59 doi: 10.11648/j.ijp.20140204.11. Available at SSRN: http://ssrn.com/abstract=2571903 http://ssrn.com/abstract=2577806 http://ssrn.com/abstract=2577787 http://ssrn.com/abstract=2574739 http://ssrn.com/abstract=2574732 http://ssrn.com/abstract=2574711 http://ssrn.com/abstract=2573560 http://ssrn.com/abstract=2573526 http://ssrn.com/abstract=2572951 http://ssrn.com/abstract=2572943 http://ssrn.com/abstract=2571903 142 
work_f3jnyu7bdnd3hbfilw4sxkf7au	----	The World Bank Legal Review Tilburg University The Justice Innovation Approach Muller, S. Published in: World Bank Legal Review Publication date: 2013 Document Version Publisher's PDF, also known as Version of record Link to publication Citation for published version (APA): Muller, S. (2013). The Justice Innovation Approach: How Justice Sector Leaders in Development Contexts Can Promote Innovation. World Bank Legal Review, 4(1), 17-30. http://external.worldbankimflib.org/uhtbin/cgisirsi/x/0/0/5/?searchdata1=756966%7Bckey%7D#_ General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. apr. 2021 https://research.tilburguniversity.edu/en/publications/96b18e18-721f-4e47-b38a-3180aa297109 http://external.worldbankimflib.org/uhtbin/cgisirsi/x/0/0/5/?searchdata1=756966%7Bckey%7D#_ P u b lic D is cl o su re A u th o ri ze d P u b lic D is cl o su re A u th o ri ze d P u b lic D is cl o su re A u th o ri ze d P u b lic D is cl o su re A u th o ri ze d wb425962 Typewritten Text 74465 wb425962 Typewritten Text The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development The World Bank Legal Review is a publication for policy makers and their advis- ers, judges, attorneys, and other professionals engaged in the field of interna- tional development with a particular focus on law, justice, and development. It offers a combination of legal scholarship, lessons from experience, legal de- velopments, and recent research on the many ways in which the application of the law and the improvement of justice systems promote poverty reduction, economic development, and the rule of law. The World Bank Legal Review is part of the World Bank Law, Justice and De- velopment Series managed by the Research and Editorial Board of the Bank’s Legal Vice Presidency. The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development Hassane Cissé Sam Muller Chantal Thomas Chenguang Wang Editors THE WORLD BANK Washington, D.C. © 2013 International Bank for Reconstruction and Development The World Bank 1818 H Street NW Washington, DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org Some rights reserved 1 2 3 4 15 14 13 12 This work is a product of the staff of The World Bank with external contributions. Note that The World Bank does not necessarily own each component of the content included in the work. The World Bank therefore does not warrant that the use of the content contained in the work will not infringe on the rights of third parties. The risk of claims resulting from such infringement rests solely with you. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they repre- sent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any terri- tory or the endorsement or acceptance of such boundaries. Nothing herein shall constitute or be considered to be a limitation upon or waiver of the privi- leges and immunities of The World Bank, all of which are specifically reserved. Rights and Permissions This work is available under the Creative Commons Attribution 3.0 Unported license (CC BY 3.0) http://creativecommons.org/licenses/by/3.0. Under the Creative Commons Attribution license, you are free to copy, distribute, transmit, and adapt this work, including for commercial purposes, under the following conditions: Attribution—Please cite the work as follows: Hassane Cissé, Sam Muller, Chantal Thomas, and Chenguang Wang, eds. The World Bank Legal Review, Volume 4: Legal Innovation and Empowerment for Development. doi: 10.1596/978-0-8213-9506-6 License: Creative Commons Attribution CC BY 3.0 Translations—If you create a translation of this work, please add the following disclaimer along with the attribution: This translation was not created by The World Bank and should not be considered an official World Bank translation. The World Bank shall not be liable for any content or error in this translation. All queries on rights and licenses should be addressed to the Office of the Publisher, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@ worldbank.org. ISBN (paper): 978-0-8213-9506-6 eISBN (electronic): 978-0-8213-9507-3 DOI: 10.1596/978-0-8213-9506-6 Cover photo: ©iStockphoto.com/Mark Wragg; Cover design: Nigel Quinney Library of Congress Cataloging-in-Publication data has been requested. http://creativecommons.org/licenses/by/3.0 www.worldbank.org www.iStockphoto.com/Mark The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development Editors Hassane Cissé Deputy General Counsel, Knowledge and Research, World Bank Sam Muller Director, HiiL Chantal Thomas Professor, Cornell University Law School Chenguang Wang Professor of Law, Tsinghua University Production Editor Matthew Moorhead Legal Associate, World Bank Contents Foreword xi Jim Yong Kim, World Bank Group President Preface xiii Anne-Marie Leroy, Senior Vice President and Group General Counsel Contributors xv Empowerment and Innovation Strategies for Law, Justice, and Development 3 Chantal Thomas The Justice Innovation Approach: How Justice Sector Leaders in Development Contexts Can Promote Innovation 17 Sam Muller and Maurits Barendrecht Legal Empowerment of the Poor: Past, Present, Future 31 Hassane Cissé Beyond the Orthodoxy of Rule of Law and Justice Sector Reform: A Framework for Legal Empowerment and Innovation through the Convention on the Rights of Persons with Disabilities 45 Janet E. Lord, Deepti Samant Raja, and Peter Blanck The Political Economy of Improving Traditional Justice Systems: A Case Study of NGO Engagement with Shalish in Bangladesh 67 Stephen Golub Intellectual Property: Facilitating Technology Transfer for Development 89 Roy F. Waldron Contentsviii Transforming through Transparency: Opening Up the World Bank’s Sanctions Regime 101 Conrad C. Daly and Frank A. Fariello, Jr. Human Rights and Development: Regime Interaction and the Fragmentation of International Law 123 Siobhán McInerney-Lankford Legal Transplantation and Legal Development in Transitional China 161 Chenguang Wang Rule of Law as a Watermark: China’s Legal and Judicial Challenges 179 Stéphanie Balme Achieving Development through Innovative Constitutionalism: A China Story 201 Zhenmin Wang and Yuan Tao The Role of Laws and Institutions in Expanding Women’s Voice, Agency, and Empowerment 213 Jeni Klugman and Sarah Twigg “We Want What the Ok Tedi Women Have!” Guidance from Papua New Guinea on Women’s Engagement in Mining Deals 233 Nicholas Menzies and Georgia Harley Innovation in Asset Recovery: The Swiss Perspective 253 Rita Adam International Asset Sharing: A Multipurpose Tool for Development 265 Karyn Kenny Toward a New Law and Development: New State Activism in Brazil and the Challenge for Legal Institutions 281 David M. Trubek, Diogo R. Coutinho, and Mario G. Schapiro The Role of the Public Ministry in the Defense of the Environment: Hydrogeographical Regions and Attitudes for Coping with Socioenvironmental Conflicts 315 Luciano Badini and Luciano Alvarenga OHADA Nears the Twenty-Year Mark: An Assessment 323 Renaud Beauchard Legal Innovation for Development: The OHADA Experience 335 Marc Frilet Index 349 Contents ix Foreword Jim Yong Kim In this time of extreme fragility in the world economy, when the needs of the world’s poor are as pressing as ever, all who work or study in the field of economic development must constantly reconsider what’s working, what’s not working, and what can work better. Economists, scientists, activists, poli- ticians, investors, workers: all have a responsibility to carefully consider how best to contribute to the development agenda. Lawyers are no exception. Law- yers and legal specialists who work in the development sphere must engage in unending self-examination if they are to continue to make a useful, indeed essential, contribution to fighting poverty. The role of law, or rather the role of the “rule of law,” in achieving devel- opment outcomes has been acknowledged and studied extensively in recent decades. More analysis and debate are required, however, to understand the complicated and multifaceted nature of this role. That is a task that requires the input of practitioners, legal experts, and many others who encounter or work with legal systems. The World Bank Legal Review gathers this input from around the world and compiles it into a useful resource for all development practitioners and scholars. The subtitle of this volume, Legal Innovation and Empowerment for Development, highlights how the law can respond to the chal- lenges posed to development objectives in a world slowly emerging from an economic crisis. The focus on innovation is a call for new, imaginative strate- gies and ways of thinking about what the law can do in the development realm. The focus on empowerment is a deliberate attempt to place the law into the hands of the poor; to give them another tool with which to resist poverty. The two themes are linked by their shared importance in the face of economic uncertainty. There is an urgent need for new, innovative thinking, and a great need to empower the poor to defend themselves. This volume shows some of the ways that the law can make an innovative and empowering difference in development scenarios. Development prob- lems are complex and varied, and the theme of innovation and empowerment naturally has a broad scope. Consequently, this volume reaches far and wide. It considers the nature, promise, and limitations of legal innovation and legal empowerment. It looks at concrete examples in places such as Africa, the Asia- Pacific region, and Latin America. It considers developments in issues with universal application, such as the rights of the disabled and the effectiveness of asset recovery measures. xi Forewordxii The World Bank Legal Review contains many valuable lessons and creative responses. I hope that the exciting ideas in this volume will inspire lawyers and non-lawyers alike to consider what new contribution they can make to our shared poverty-fighting mission xiii Preface AnnE-mAriE LEroY The effects of the global financial crisis and the ensuing Great Recession are still being felt throughout the world and continue to be a preoccupation of the World Bank and other development institutions. Meanwhile, the Bank’s member countries face a range of other economic challenges and crises. As a result, demand for the Bank’s assistance remains elevated. In addition to re- sponding to debilitating crises, both real and potential, the Bank ensures that its resources are focused on the long, hard road to economic development. The Bank’s team of lawyers and legal specialists has a crucial role to play in proactively supporting the Bank in the achievement of its development objectives. It is our responsibility to provide a sound legal response to these many challenges. It is also our responsibility to ensure that that response rep- resents world’s best practice and is at the cutting edge of contemporary think- ing about what the law can and should do to support development goals. With these responsibilities in mind, we have compiled the fourth volume of The World Bank Legal Review, subtitled Legal Innovation and Empowerment for Development. In a time of difficulty and change, innovative ideas and strate- gies to empower the poor are more important than ever. Many (although not all) of the contributions to this volume of The World Bank Legal Review emerged from the second annual World Bank Law, Justice and Development Week, held in Washington, D.C., in November 2011. Jointly hosted by the General Counsels of all the World Bank Group organizations, the Law, Justice and Development Week brought together leading scholars, legal practitioners, development experts, policy institutes, universities, and other concerned parties to share lessons and inspiration. A sense of the great range of legal innovations and empowerment strategies that were discussed and debated is captured in this book. All of the diverse issues under discussion were linked by the understanding that the law must respond with solutions that are innovative and empowering. New problems call for new answers. I thank the contributors to this volume. The diverse topics they discuss and the varied perspectives they represent have been organized by four dis- tinguished editors: Chenguang Wang of Tsinghua University, Sam Muller of the Hague Institute for the Internationalization of Law (HiiL), Chantal Thomas of Cornell University, and our Deputy General Counsel for Knowledge and Prefacexiv Research, Hassane Cissé. Dr. Nigel Quinney provided invaluable editorial as- sistance. This volume deals with important and intriguing topics in law and development, and the contributors’ analyses will assist anyone who is inter- ested, the place of law on today’s development agenda. xv Contributors Rita Adam is Vice-Director of the Directorate of Public International Law (DPIL) at the Swiss Federal Department of Foreign Affairs (FDFA). At the DPIL, she leads the Division of International Law, International Treaties and the Law of Neighbouring States. Ms. Adam also serves as the Ambassador of Switzerland to the Principality of Liechtenstein (based in Bern). Before joining the FDFA in 1999, she worked as a legal advisor in civil and criminal mat- ters at the District Court of Thun, Switzerland. After assignments at the Swiss Mission to the United Nations in Geneva and the Embassy of Switzerland in Pretoria, South Africa, she returned to Bern in 2001 to join the Political Af- fairs Division, where she was appointed Deputy Head of the International Organizations and Host-Country Policy Section in 2004. In 2005, Ms. Adam became Head of the Legal Affairs and Press Service of the Swiss Embassy in Paris, France. From 2008 until July 2010, she was in charge of the Multilateral Peace Policy Section of the Political Affairs Division before being appointed Vice-Director of the DPIL. Ambassador Adam graduated from the University of Bern Law Faculty in 1996 as an attorney at law. Luciano Alvarenga is a professor and associate researcher at the Brazilian Society for Scientific Progress. His research focuses on the interrelationship between law and a variety of other subject areas, such as art and science, the maintenance of the Cerrado biome, environmental and forestry legislation directed at biodiversity, otherness and environmental justice, responsibility for risk and environmental damage, ethics, and new theoretical and meth- odological approaches in the environmental sciences. Professor Alvarenga graduated from the Federal University of Minas Gerais with a law degree, having been awarded a scholarship from the National Council for Scientific and Technological Development. He also holds an M.S. in Natural Sciences from the Federal University of Ouro Preto, Brazil, and a Specialist’s Degree in Environment, Education and Sustainability from the University of Evora, Portugal. Luciano Badini has been a prosecutor at the Public Ministry of Minas Gerais (PMMG) since 1993. He has also served as Coordinator of the Operational Support Center for District Attorneys Working on Environmental Protection, Coordinator of Interstate Justice Prosecutors for the Protection of the São Fran- cisco River, and Executive Coordinator of the agreement between the PMMG and the World Bank that aims at technical and technological improvements of the PMMG for the protection of the environment. He was the recipient of the 2010 Innovare Award for his work in implementing the project that organized the Public Ministry’s actions for the protection of natural resources of all river basins in the state of Minas Gerais. Contributorsxvi Stéphanie Balme is a research fellow at Sciences Po Paris and professor at the Centre for International Studies and Research (CERI) and the Paris School of International Affairs (PSIA), and the head of the “Law, Justice, and Society in China” program. Her research and teaching focuses include comparative con- stitutional law and rule of law developments. Her research applies to “emerg- ing countries,” in particular China and post-socialist countries. She lived in mainland China and Hong Kong SAR, China for many years, working at Tsing- hua University Law School as a delegate for the Civil Law Initiative and the Chinese University of Hong Kong. She has authored six books and a number of other academic publications and public policy papers in English, Chinese, and French. She also is a consultant on China for European and international organizations. Maurits Barendrecht is Academic Director at HiiL and has been a professor of private law at Tilburg University since 1992. He practiced law at a ma- jor Dutch law firm from 1982 to 1997. He studies dispute systems (e.g., legal procedures and informal dispute mechanisms) from an interdisciplinary per- spective, and systematically looks for knowledge from other disciplines (e.g., economics and organization theory) that can be integrated with best practices in order to improve dispute systems for the people who rely on them. His re- search is conducted through the Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems. Professor Barendrecht has led several large-scale innovation projects in the area of justice and governance that directly addressed urgent needs not being met through existing legal ar- rangements. These interactive research and development projects usually take place in cooperation with stakeholders such as client groups, ministries of jus- tice, the judiciary, and the legal-services community. Renaud Beauchard, a French national and U.S. resident, is an attorney and le- gal consultant specializing in rule of law, justice reforms, and anti-corruption. A fellow of the Institut des Hautes Études sur la Justice in Paris and counsel for the law offices of Peter C. Hansen in Washington, D.C., Mr. Beauchard practiced law in France for six years as a litigator in a maritime and transpor- tation law. More recently, he has worked as a consultant for the World Bank’s Office of Evaluation and Suspension and for the U.S. Millennium Challenge Corporation on its Access to Justice program in Benin. Mr. Beauchard has written several publications on topics as diverse as international assets recov- ery, corporate social responsibility, anti-corruption, and the evaluation of legal systems. He holds law degrees from Poitiers University (LL.M.), Cambridge University (LL.M.), and Tulane University Law School (J.D.), and has both practiced and taught law. Peter Blanck is University Professor at Syracuse University, Chairman of the Burton Blatt Institute, also at Syracuse University, and Honorary Professor, Centre for Disability Law and Policy, National University of Ireland, Gal- way. He has published widely on the Americans with Disabilities Act and re- lated laws, serves as Chairman of the Global Universal Design Commission (GUDC), and has practiced law at Covington & Burling, where he served as Contributors xvii law clerk to the late Honorable Carl McGowan of the United States Court of Appeals for the D.C. Circuit. Professor Blanck’s recent books include Disability Civil Rights Law and Policy (with Hill, Siegal & Waterstone) (2009), Race, Ethnic- ity, and Disability: Veterans and Benefits in Post-Civil War America (with Logue) (2010); and eQuality 3.0: Towards a Right to the Web for People with Cognitive Disabilities (forthcoming). He received a J.D. from Stanford University, where he was President of the Stanford Law Review, and a Ph.D. in Psychology from Harvard University. Hassane Cissé, a national of Senegal, joined the World Bank in 1997 after serv- ing for several years as Counsel at the International Monetary Fund. He has been Deputy General Counsel, Knowledge and Research, of the Bank since 2009. In this capacity he advises on strategic legal issues facing the Bank and leads the Bank’s work on law, justice, and development. Previously, Mr. Cissé served as Chief Counsel for Operations Policy of the World Bank. He is the editor-in-chief of the World Bank’s Law, Justice and Development Series and has published papers on rule of law and development and on international economic law matters. Mr. Cissé obtained his LL.B from Dakar University in Senegal. He also holds an LL.M degree from Harvard Law School, graduate law degrees from the universities of Paris I Panthéon-Sorbonne and Paris II Panthéon-Assas, as well as a graduate degree in history from Paris I Panthéon- Sorbonne University. He is a member of the World Economic Forum’s Global Agenda Council on the Rule of Law. Diogo R. Coutinho is an Associate Professor of Law at the University of São Paulo, where his courses include economic law, political economy, and law and development, and a research fellow at the Brazilian Center of Analysis and Planning (CEBRAP). Currently, he serves as investigator of LANDS, the project on Law and the New Developmental State. He was a researcher at FGV São Paulo Law School and at the Brazilian Society of Public Law. Also, he was a visiting professor at the London-based Center for Transnational Legal Studies (2009). Professor Coutinho has written on law and development; ad- ministrative, economic, and social law; and regulatory and antitrust policies in Brazil. He holds an M.Sc. from the London School of Economics and Politi- cal Science (2002) and a doctorate from the University of São Paulo Faculty of Law (2003). Conrad C. Daly is a Legal Consultant for the Operations Policy practice group of the World Bank’s Legal Vice Presidency, where he has been engaged princi- pally in the Bank’s work in governance and anti-corruption. Mr. Daly gradu- ated from a dual-degree program between Cornell Law School and the Ecole de droit de la Sorbonne (Université Paris I Panthéon-Sorbonne). He is also a graduate of Heythrop College, University of London, where he read for a Mas- ter in systematic theology, and of Boston College, where he double-majored in biochemistry and history. While in Paris as a visiting fellow at the Université Panthéon-Assas (Paris 2), he researched issues in competition law and taught classes in U.S. and British constitutional and administrative law. His work experience also includes work with GRC Counsel, as well as legal internships Contributorsxviii at the German gas and engineering company, Linde AG, and at the U.S. Court of International Trade. Prior to making law his chosen profession, Mr. Daly worked at the Southern Medical Journal as the special projects editor. Frank Fariello, a graduate of Brown University and New York University School of Law, is currently Lead Counsel, Operations Policy, in the World Bank’s Legal Vice Presidency (LEG). He is LEG’s primary focal point for the Bank’s sanctions regime and governance and anticorruption policies. In that capacity, he coordinated the recent comprehensive reforms of the Bank’s sanc- tions process and advised Integrity Vice Presidency in connection with the Agreement on Mutual Enforcement of Debarment Decisions among Multilat- eral Development Banks. Before joining the Bank in 2005, Mr. Fariello worked for nine years at the International Fund for Agricultural Development (IFAD) as Senior Counsel and subsequently as Special Advisor to the Vice President. For the first ten years of his career, prior to his service at IFAD, he practiced corporate law, with an emphasis on international financial transactions, at a number of New York firms, including Skadden Arps Slate Meagher and Flom. Marc Frilet is the managing partner of the Paris law firm Frilet Société d’Avocats, which specializes in construction, infrastructure, and mining proj- ects, in France and internationally, with a particular focus on developing na- tions, mostly in Africa. The firm is also active in general corporate and privati- zation law. He teaches international investment law at the University of Paris V: Descartes and mining law at l’Ecole de Mines. He is a frequent lecturer and author, and the former co-chair of Committee T, an international construc- tion project of the International Bar Association (IBA), and a former Council member of the IBA. Mr. Frilet is Secretary General of the French Institute of International Legal Experts, sponsored by the Paris Bar. Stephen Golub is an adjunct professor, attorney, and consultant, who teaches courses on International Development and Legal Empowerment at the Uni- versity of California at Berkeley Law School and at the Central European University Public Policy Department in Budapest. He has edited volumes on legal empowerment and related topics for the Ford Foundation, the Open Society Foundations, the International Development Law Organization, the Hague Journal on the Rule of Law, and the Asian Development Bank. He has more than 25 years of experience in 40 countries, consulting and conducting research on legal empowerment, traditional justice systems, the rule of law, and governance for the World Bank, the Carnegie Endowment for Interna- tional Peace, Amnesty International, development institutions, foundations, policy institutes, and nongovernmental groups. Professor Golub has written over 30 published pieces for law journals, aid agencies, and other policy and scholarly outlets. Georgia Harley is an Executive Legal Adviser with the Australian Depart- ment of Foreign Affairs and Trade and a Legal Consultant for the Justice Re- form Unit of the Legal Vice Presidency at the World Bank. At the Bank, Ms. Harley works for the Justice for the Poor program, and is engaged principally on natural resource governance in fragile states. Previously, she served in the Contributors xix Office of International Law at the Australian Attorney-General’s Department, the Regional Assistance Mission to Solomon Islands, and on various rule of law projects in Southeast Asia and the Pacific. Ms. Harley earned a Bachelor of Arts and Bachelor of Laws (Hons.) from the University of Queensland, an LL.M. in International Law from the Australian National University and a Masters in International Development Policy (Applied Economics and Peace and Conflict Resolution) from Duke University. Karyn Kenny is an International Attorney Advisor for the U.S. Department of Justice, responsible for negotiating asset sharing agreements and building global capacity in anti-money laundering sectors. A former justice expert con- sultant for the World Bank, she served as a U.S. Supreme Court Fellow in 2007, one of four Fellows selected from an international pool by a commission appointed by Chief Justice John G. Roberts. In 2006, she served as a U.S. Ful- bright Scholar in Lithuania, teaching comparative constitutional and criminal law. She has served as an Assistant United States Attorney prosecuting federal economic crimes and as an Assistant District Attorney in the Manhattan Dis- trict Attorney’s Office prosecuting violent street crime. Ms. Kenny teaches law internationally and has received an award for outstanding teaching. A pub- lished author on international legal issues, she frequently serves as an expert speaker, including presentations for the Brookings Institution and the World Bank. Jeni Klugman is the Director of Gender and Development at the World Bank Group. Prior to taking up this position, Ms. Klugman was the director and lead author of three global Human Development Reports (2010, 2011, and 2012) pub- lished by the United Nations Development Programme. From 1992 to 2008, she held various positions at the World Bank, focusing on poverty, inequality, and human development in low-income countries in Africa, Europe, and Asia. She currently serves on the World Economic Forum’s Advisory Board on Sus- tainability and Competitiveness and is a fellow of the Human Development and Capabilities Association. Ms. Klugman has published books, papers, and reports on topics ranging from poverty reduction strategies and labor markets to conflict, health reform, education, and decentralization. She holds a Ph.D. in Economics from the Australian National University, as well as postgradu- ate degrees in Law and in Development Economics from Oxford University, where she was a Rhodes Scholar. Janet Lord is an international lawyer and development practitioner with more than 20 years of professional experience. Ms. Lord directs the human rights and disability inclusive development practice at BlueLaw International LLP and provides subject matter expertise in human rights law and policy reform, advocacy, monitoring and complaints mechanisms, election access for margin- alized populations, building and strengthening national human rights institu- tions, and international disability rights. She also serves as Senior Research Associate at the Harvard Law School Project on Disability and is Adjunct Pro- fessor of Law at the University of Maryland Francis King Carey School of Law. She is internationally recognized for subject-matter expertise in the area Contributorsxx of human rights for marginalized populations, inclusive development, and disability and has authored a wide array of scholarly, as well as practitioner- oriented international law, development, and human rights publications. She holds an LL.B. and an LL.M. in law from the University of Edinburgh, and an LL.M. in international and comparative law from the George Washington University Law School. Siobhán McInerney-Lankford is Senior Counsel in the World Bank Legal Vice Presidency and former Senior Policy Officer, Institutions, Law and Partner- ships for Human Rights, Nordic Trust Fund, Operations Policy and Country Services. She has been advising the World Bank on human rights law issues since 2002 and regularly represents the World Bank in international human rights fora, including at the United Nations (UN), European Union (EU), and Organisation for Economic Co-operation and Development (OECD). From 2006 to 2008, she served as chair of the OECD DAC Human Rights Task Team and was World Bank representative to the UN High-Level Task Force on the Right to Development from 2007 to 2009. Before joining the World Bank, she worked in private practice in Washington, D.C. She has published widely on human rights law and teaches occasionally. Dr. McInerney-Lankford holds an LL.B. from Trinity College, Dublin, an LL.M. from Harvard Law School, and a B.C.L and D.Phil. in EU human rights law from Oxford University. Nicholas Menzies is a Justice Reform Specialist in the Legal Vice Presidency of the World Bank. He works on institutional reform of the formal justice sec- tor and on mainstreaming justice into development programming with the Justice for the Poor program, with particular interests in impact evaluation, indicators, and gender. Prior to the World Bank, he worked at the intersections of plural legal systems as a land and natural resources lawyer for indigenous communities in Australia, on legal empowerment and access to justice issues in Cambodia, and in providing policy advice to the Papua New Guinean cabi- net. Mr. Menzies has an LL.B. and a B.A. from the University of Sydney and a Master of Public Policy degree from the Hertie School of Governance, Berlin. Sam Muller is the founding Director of HiiL. He has also served as Special Adviser to the Registrar on External Relations at the International Criminal Court (ICC), interim Deputy Director of the Common Services Division, and Acting Director of the Public Information and Documentation Section of the Registry. Before heading up the Advance Team to set up the ICC, he worked as Senior Legal Adviser and head of the Legal Department of the Registry of the International Criminal Tribunal for the former Yugoslavia and as a legal officer at the headquarters of the UN Relief and Works Agency in Gaza. In the mid-1990s he was Associate Professor and Programme Coordinator of the Public International Law LL.M. programme of Leiden University. Mr. Muller holds a law degree and a doctorate from Leiden University. He has published and spoken extensively on various topics, focusing on the law of international organizations, international justice issues, and, over the past two years, global legal trends and justice innovation. He serves on various boards, including The Hague Prize Foundation, and is chairman of the Board of the Hague Academic Coalition and of the Rule of Law Action Council of the World Economic Forum. Deepti Samant Raja is the Director of International Programs at the Burton Blatt Institute, Syracuse University. Samant Raja has over seven years of work experience in promoting the social inclusion and economic empowerment of people with disabilities. She has worked on mainstreaming disability in pov- erty reduction and development programs, developing programs to promote access to low-cost assistive devices for people with disabilities in resource- limited environments, ICT accessibility, and full participation in the labor market. She worked for the Secretariat of the Global Partnership for Disability and Development, managing research and knowledge translation activities. Ms. Samant Raja has published and presented on ICT accessibility in develop- ment and the implications of the Convention on the Rights of Persons with Disabilities on employment outcomes. She holds an M.S. in Rehabilitation Counseling (University of Illinois at Urbana-Champaign), an M.S. in Electrical Engineering (University of California–Irvine), and a B.A. in Telecommunica- tion Engineering (University of Mumbai). Mario Schapiro is a full-time professor of law at Getulio Vargas Foundation School of Law (FGV Law School), where his courses include law and develop- ment, administrative law, competition law, and law and finance. Currently, he serves as investigator of LANDS, the project on Law and the New De- velopmental State, and also as investigator of the Brazilian Institute of Ap- plied Research (IPEA), a project on legal capacity for development. He was a visiting researcher at the Columbia Law School (2008) and visiting scholar at King’s College London (2012). Professor Schapiro has written on law and development, administrative law, economic law, and, his main area of interest, the governance of industrial policy and development policies as a whole. He holds a master’s from the University of São Paulo Faculty of Law (2005) and a doctorate from the University of São Paulo Faculty of Law (2009). Yuan Tao is Counsel at the Environmental and International Law practice group of the Legal Vice Presidency of the World Bank, where he works on sustainable development, climate change, environmental and social safeguard policies of the World Bank, and Global Environmental Facility operations. Be- fore joining the World Bank, Mr. Tao served as an Editor of the Harvard Envi- ronmental Law Review, and practiced law with the international law firm Allen & Overy LLP in Beijing, China, and London, where he advised on various in- ternational and environmental law issues. His experience also includes advis- ing on legal aspects in relation to China’s business environment, foreign direct investment, financial regulations, and anti-corruption. He obtained his LL.M. degree from Harvard Law School. Previously, he graduated with an LL.B. and an LL.M. from Tsinghua University, China, and an LL.M. from University Col- lege London, England. Chantal Thomas is Professor of Law at Cornell University Law School, where her courses include International Trade and Development Law and Interna- tional Labor Law. She also directs the Clarke Initiative for Law and Develop- ment in the Middle East and North Africa. Prior to joining Cornell, Professor Contributors xxi Thomas chaired the Law Department of the American University in Cairo. Professor Thomas serves on the U.S. State Department’s Advisory Council on International Law, and is a Counsellor of the American Society of Interna- tional Law. She has consulted for the USAID Bureau for Democracy, Conflict, and Humanitarian Affairs, and before entering the legal academy practiced international financial law at Shearman & Sterling’s New York offices. She has published widely on the relationship between international law, political economy, and global social justice in a variety of contexts. Professor Thomas earned her law degree from Harvard University and her bachelor’s degree from McGill University. David M. Trubek is Voss-Bascom Professor of Law and Dean of Internation- al Studies Emeritus at the University of Wisconsin–Madison and Senior Re- search Fellow at the Harvard Law School. He served as director of the UW’s Institute for Legal Studies from 1985 to 1990 and was appointed as University Dean of International Studies in 1990. In 1995 he became the founding direc- tor of the UW-Madison International Institute. A pioneer in the field of law and development, his work includes Law and the New Developmental State: The Brazilian Experience in Latin American Perspective (forthcoming, 2013), Direito, Planejamento e Desenvolvimento do Mercado de Capitais Brasileiro 1965-70 (2nd edition 2011), and The New Law and Economic Development: A Critical Appraisal (2006). Currently, he serves as Principal Investigator of LANDS, the project on Law and the New Developmental State and Co-Director of GLEE, the Project on Globalization, Lawyers, and Emerging Economies. Sarah Twigg is a consultant in the World Bank Gender and Development Unit. In her current role she conducts research on areas related to gender equality issues in laws and policy, and supports communications, outreach, and advo- cacy efforts in support of the World Bank’s gender and development priori- ties. Prior to joining the World Bank she worked as a researcher for two global Human Development Reports (2010 and 2011) published by the United Nations Development Programme, and as a gender and climate finance consultant for UN Women. Ms. Twigg also has experience practicing as a commercial lawyer in New Zealand and New York. Ms. Twigg holds a master’s degree in Interna- tional Politics and Business from New York University and bachelor’s degrees in Law and Political Science from the University of Otago, New Zealand. Roy F. Waldron is Senior Vice President, Associate General Counsel, and Chief Intellectual Property Counsel at Pfizer Inc., where he leads the team of attorneys and professionals who procure patents; works closely with R&D, Business Development, and the Pfizer Business Units; and ensures enforce- ment of trademarks. He represents Pfizer on the committees of various in- dustry organizations, including the International Federation of Pharmaceu- tical Manufacturers and Associations, where he is chair of the International IP and Trade Committee; the Pharmaceutical Research and Manufacturers of America, IPO, where he represents Pfizer on the Board of Directors; and INTERPAT. Mr. Waldron joined Pfizer in 1999 from White & Case’s IP practice group, and was previously an associate at Fish & Neave. He has a J.D. from Contributorsxxii New York University School of Law, a Ph.D. from Yale University (physical- organic chemistry), and a B.A. from Dartmouth College (chemistry). He was a DAAD Scholar at the Albrecht-Ludwigs-Universität in Freiburg, Germany, and a JSPS Post-Doctoral Fellow at Kyoto University in Japan. Chenguang Wang is Professor of Law and Director of the Health Law Re- search Center at Tsinghua University. He taught at Peking University Law School and Hong Kong City University Law School before joining Tsinghua in 2000. He has also taught as a visiting professor at the law schools of New York University, Cornell University, the University of Toronto, and the University of Pennsylvania. He has been a Special Adviser to the Supreme People’s Court since 2003, an arbitrator at the China International Economic and Trade Arbi- tration Commission since 1993, and a Deputy Chair of the China Association of Legal Theory (since 2003), the China Association of Legal Education (since 2007), and the China Health Law Association (since 2007). His teaching fo- cuses on legal theory, comparative law, and health law. He is the Co-Editor of China’s Journey toward the Rule of Law: Legal Reform, 1978–2008, and has pub- lished more than 40 scholarly articles on topics such as judicial system, legal education, comparative law and heath law. He received a B.A. (1980), M.A. (1983), and Ph.D. in Law (1999) from Peking University, and an LL.M. (1996) from Harvard University Law School. Zhenmin Wang is Professor of Law and Dean at the Tsinghua University School of Law and Vice President of the China Association of Constitutional Law. He is a member of the Committee for the Macao Basic Law and the Committee for the Hong Kong Basic Law under the Standing Committee of the Chinese National People’s Congress. In 2007, he was elected Deputy to the 13th Beijing City People’s Congress. He is the author of The Central-Special Administrative Region Relationship in China: From a Legal Perspective (2002) and Constitutional Review in China (2004). Professor Wang has published over 60 articles and presented papers at many regional and international conferences on Chinese constitutional law and legal reform. He is a Member of the Forum of Young Global Leaders of the World Economic Forum. Dean Wang received an LL.B. from Zhengzhou University (1989) and an LL.M. and Ph.D. in Law from People’s University of China (1992 and 1995, respectively). He also stud- ied in the Law Faculty of Hong Kong University from 1993 to 1995. He was a Fulbright Visiting Scholar at Harvard Law School in 2000–2001. Contributors xxiii The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development Empowerment and Innovation Strategies for Law, Justice, and Development Chantal thomas The concept of the rule of law has now garnered near-universal recognition both as a means and as an end of socioeconomic improvement in poor coun- tries. Yet, the very universality of the concept has generated next-level prob- lems. The rule of law as an abstract goal offers little guidance about the practi- cal aspects of such a goal in specific contexts. As Hassane Cissé notes in this volume, “[d]evelopment policymakers have learnt through bitter experience that a uniform, one-size-fits-all approach to policy interventions in poor coun- tries can have unfortunate, indeed disastrous, consequences.”1 The challenge for rule of law reformers, then, is to overcome the pitfalls of a one-size-fits-all approach and instead to devise regulatory strategies suitable and responsive to the local environment. An additional challenge for rule of law and related “good governance” reforms is that the economic liberalization programs accompanying such policies often have failed to address social inequities and hierarchies. Some contemporary development policy analysts have focused on how to incor- porate these social goals. For example, Amartya Sen’s Development as Freedom provides a template for understanding how the fulfillment of civil, political, and social rights could be factored into development policy.2 The challenge is to ensure that opportunities for, and benefits of, prosperity are equitably enjoyed, and that the least advantaged are able to share them. Both of these challenges—transposing policies to particular contexts and ensuring more equitable processes and outcomes of policy reform—inspire the theme of this volume: Legal Innovation and Empowerment for Development. The fourth installment of a research effort under way at the World Bank, this volume highlights both the necessity of innovating law and policy to address specific development contexts and the importance of doing so in a way that will contribute to socioeconomic empowerment. In this way, the volume makes the case that legal innovation can drive, rather than simply reflect, em- powerment and development. The theme of legal innovation and empowerment for development com- plements substantive and institutional sensibilities in current development policy. Substantively, development policy discourse seems to have moved away from tacking hard toward statist policy or neoliberal policy. Rather, 1 See, in this volume, Hassane Cissé, Legal Empowerment of the Poor: Past, Present, Future. 2 Amartya Sen, Development as Freedom (Oxford U. Press 1999). 3 The World Bank Legal Review4 something of a more self-consciously moderate approach is emerging in which the basic commitment to market-oriented regulation is affirmed, but the im- portance of meeting social needs as a concurrent rather than a long-term goal is simultaneously recognized.3 Institutionally, this self-styled pragmatism is reflected through the en- dorsement of “new governance” techniques that blend public sector and pri- vate sector approaches. Public-private partnerships constitute one important example, but there are many variations, such as a bottom-line approach to measuring policy effects that resembles market metrics. There is cause for hope that these new approaches may help balance out some of the excesses of prior eras. They may be reflected in a greater focus on locality, as well as a greater focus on inclusiveness in processes of gover- nance. Equally welcome is the greater awareness of the importance of self- assessment by the range of actors who participate in the development policy cosmos: developed-country governments, international organizations, and nongovernmental organizations (NGOs). Still, one might ask how much of this apparent change remains only sur- face deep. Can these reforms transform deeply entrenched policy orientations on the ground? Is the turn to social innovation and empowerment merely cos- metic, leaving underlying structural dynamics and biases intact? How pos- sible is genuine interdisciplinary exchange among the various categories of experts in law, economics, and public policy? There is much evidence that deep institutional “inefficiencies” remain. Key among these are imperfect in- formation, powerful interests, and subjective models.4 Despite these persistent questions, many new developments in the field are promising and interesting, and some of these are presented in this volume. In exploring contemporary examples of legal innovation and empowerment, the volume offers a variety of focal points. Some chapters focus on elaborating the broad concepts of innovation and empowerment. Others focus on govern- mental innovations in particular country contexts. Still others discuss the role of NGOs and civil society. Finally, some chapters describe emerging trends in international laws and organizations. Although this brief introduction cannot do justice to the richness and complexity of these contributions, it does con- sider each focal point in turn. The Conceptual State of Play What precisely is meant by “legal innovation” and “legal empowerment”? The general issue of legal, judicial, and constitutional innovation is addressed 3 See, in this volume, David M. Trubek, Diogo R. Coutinho, & Mario G. Schapiro, Toward a New Law and Development: New State Activism in Brazil and the Challenge for Legal Institutions. 4 Chantal Thomas, Law and Neoclassical Economic Development: Toward an Institutionalist Critique of Institutionalism, 96 Cornell L. Rev. 968, 1018–1023 (2011). Empowerment and Innovation Strategies for Law, Justice, and Development 5 by Sam Muller and Maurits Barendrecht in “The Justice Innovation Approach: How Justice Sector Leaders in Development Contexts Can Promote Innova- tion.” The authors stress competition among potential providers (alternative dispute resolution is envisioned as a potential competitor to traditional judi- cial processes) as well as a redefinition of members of society as stakeholders. Within this framework, Muller and Barendrecht emphasize a few key as- pects of desirable “justice innovation.” First, it is low cost and bottom up. Sec- ond, it emphasizes that even though policy goals should be clear, the factors leading to their realization will inevitably be complex, reflecting the environ- ment on the ground. Third, this version of justice innovation favors public- private partnerships in the delivery of access to justice, including something like a “Build-Operate-Transfer” model (in which investors are permitted to build and operate a firm for a period of time in exchange for, among other things, an agreement to transfer possession eventually to the owner). Finally, this version emphasizes the importance of protecting and rewarding innova- tion and experimentation. The authors offer a pragmatic approach to the question of how to deliver a public good, such as justice, through a model based on the ideal of private sector competition. Such an approach may have the virtue of encouraging clearer quantification and greater accountability through a “marketized” fo- cus on systemic “profits,” in the form of increased satisfaction with access to justice, which might permit more precise measurement of the “deliverables” of reform. At the same time, some implications of competition in the justice sector remain unclear. For example, if competition leads to the proliferation of dispute resolution fora, will the “forum shopping” that likely ensues improve the justice sector through regulatory competition, or encourage negative ex- ternalities (i.e., gaming the system)? More profoundly, what danger might privatizing justice pose to public policy goals? As for legal empowerment, this concept is taken up in Hassane Cissé in “Legal Empowerment of the Poor: Past, Present, Future.” Now that the “idea that law has an important role to play in promoting economic development has become well established,” Cissé notes that the “traditional focus on in- stitutions and government machinery has been widened to bring the people themselves into view.” Legal empowerment of the poor (LEP) is in part a reaction to classical rule of law approaches, which focus too much on “institutions and state struc- tures,” perhaps with the unstated premise that these automatically benefit the poor, rather than on whether such benefits are quantifiably delivered. Cissé emphasizes the point made by Muller and Barendrecht that earlier approach- es have been overly top down and therefore likely to misapprehend the con- text of those on the lower rungs of society. Despite these improvements, Cissé notes some difficulties with LEP. First, there is the problem of “causality versus correlation” that characterizes the entire field of good governance policy—does economic empowerment result The World Bank Legal Review6 from, or lead to, better institutions? Second, there is the delicate matter of compliance of LEP reforms with the World Bank Articles of Agreement, which prohibit interference in political matters. Third, in the form it has taken up to now, most visibly in the Commission on Legal Empowerment of the Poor (CLEP), LEP has come under criticism for overestimating the impact of legal exclusion as opposed to other factors on poverty and adopting neoliberal eco- nomic assumptions. Among the latter, property rights enforcement is “pos- sibly the most contested” on the CLEP agenda. Beyond these conceptual difficulties, there are some applied challenges in implementing LEP policy. Cissé writes of the need to see LEP as not merely a technocratic strategy, but also as one that entails confronting the reality of en- trenched power elites and interests. Additionally, vigilance against one-size- fits-all policies must continue. Examples of local LEP solutions include greater incorporation of informal justice systems. If the perils of one-size-fits-all are to be taken seriously, then general ideas about legal empowerment and innovation must take into context more spe- cific social hierarchies. A useful intervention in thinking through one kind of particularity—gender equality—is offered by Jeni Klugman and Sarah Twigg in “The Role of Laws and Institutions in Expanding Women’s Voice, Agency, and Empowerment.” As these authors point out, gender equality has now been mainstreamed as a focus of development policy, one example of which is the 2012 World Development Report, whose title is Gender Equality and Development. A focus on gender equality encourages analytically productive atten- tion to the effects of law. The authors focus in part on formally unequal rules, pointing out that although more and more countries have incorporated non- discrimination principles into their basic laws, many “still have legal provi- sions that overtly discriminate against women in both formal statutory and customary law.” These formal inequalities affect, among other things, access by women to entrepreneurial opportunity through restriction of their ability to sign contracts, open bank accounts, and undertake other business activities. A gender equality analysis requires looking at whether the laws apply for- mally unequal rules as well as at whether they enforce a regulatory structure that is conducive to the kind of economic growth that would increase the well- being of women (and, by extension, children and households more generally). For example, family law can enforce differential treatment, as in the case of many inheritance laws. It can also enforce seemingly neutral provisions that nevertheless generate a disparate adverse impact on women. The authors give an example of the latter when discussing the failure of some legal systems to provide for joint ownership in marriage. The potentially disparate effects of titling practices point to the impor- tance of understanding context before adopting prescribed LEP reforms such as property registration. Without understanding the existing legal and eco- nomic distribution of resources, such registration might have the effect of dis- Empowerment and Innovation Strategies for Law, Justice, and Development 7 owning less powerful members of a community. The authors describe one project, the Reconstruction of Aceh Land Administration System, which ad- dressed this issue by introducing land registration and creating joint titling at the same time—a significant social intervention. Such examples suggest the importance of context within the more specific category of gender. Country Contexts Further to the centrality of context in shaping development policy, the volume considers a variety of country studies. Among the most innovative in the field have been the emerging developing country economies. Brazil and China are leaders within these ranks, and this volume offers multiple perspectives on each country. China In “Legal Transplantation and Legal Development in Transitional China,” Chenguang Wang takes on the debate about the benefits of legal transplants in the specific context of China. Wang notes that transplantation should not be viewed as exceptional: every legal system has evolved through reference to others. Yet, transplants are vulnerable to several critiques. Synthesizing these two sides of the debate, he offers a view of transplants that seeks to capture their benefits while minimizing their potential harms. As Wang demonstrates, China in the past several years has boldly ad- opted numerous legal transplants, but with two innovative characteristics that have increased the chances for success. First, policy makers have integrated transplanted laws with “aboriginal” laws. Second, transplants have involved selective, as opposed to wholesale, adoption. In “Achieving Development through Innovative Constitutionalism: A China Story,” Zhenmin Wang and Yuan Tao tell a story that bears out Chenguang Wang’s narrative of incremental transplantation. Wang and Tao de- scribe the gradual and piecemeal reform of China’s constitution from socialist legal and political commitments to the constitutionalism of liberal capitalist economies. They argue that this style of reform has contributed significantly to China’s economic rise. Regardless of actual causality, these reforms form an important part of the larger legal picture. In “Rule of Law as a Watermark: China’s Legal and Judicial Challenges,” Stéphanie Balme, looks beyond China’s constitution to its massive adoption, from the late 1970s onward, of new legislation and administrative regula- tions—an exertion she dubs “quantitative legislative reforms.” These reforms coincided with the adoption of the 1982 constitution, and, in many cases, provided processes for redressing grievances that were admin- istrative rather than judicial, such as the proliferation of xinfang offices. Balme suggests that China’s process of legalization is incomplete and ongoing. This process is evidenced by, among other things, a gradual increase in both formal The World Bank Legal Review8 legal and nonlegal mediation disputes over xinfang complaints; improvement of the legal system’s “hardware” through better education and regulation of the legal profession and judicial system; and increased incorporation of hu- man rights discourse. Among the remaining challenges are the legal guarantee of ownership rights, which suffers because the current system is complex and the judicial system does not have clear authority to regulate. Underlying all this is the fact that, even though the adoption of the new constitution precipitated much of this reform, there continues to be a lack of respect for the constitution . . . explained by the de facto absence of a hierarchy of norms (despite a clear definition of the “sources of the law,” [fa yuan]), resulting in confusion both in the or- ganization and in the legal texts, administrative regulations, and de- crees. It can also be explained by the lack of a clear conception of the position of the constitution in the hierarchy of the normative system. The chapters by Balme and Wang and Tao support Chenguang Wang’s general analysis of the piecemeal and partial nature of legal transplantation and reform in China. This process leaves much to be desired. At the same time, one might see the disorganized quality of legal reform in China as an acceptable price for a greater legitimacy borne of incremental change as op- posed to radical transplantation. Brazil As with China and its adoption of a new constitution in 1982, the adoption of a new constitution in 1988 marked a watershed moment in the transforma- tion of the structure of economic law and regulation for Brazil. In “Toward a New Law and Development: New State Activism in Brazil and the Chal- lenge for Legal Institutions,” David M. Trubek, Diogo R. Coutinho, and Mario G. Schapiro identify a resulting new wave of governance that seeks to avoid perceived extremes of prior eras in development policy in Brazil—both the unrelenting statism of the early decolonization period and the adamantly deregulatory orientation of the Washington Consensus. Although Brazil’s government adopted characteristic policies in both eras, by the late 1980s, the country was beginning to move toward the ap- proach that Trubek et al. deem “new state activism.” Beginning with the 1988 constitution, building through the Cardoso administration of the mid-1990s, and maturing after the 2002 election of Lula da Silva, new state activism em- braces innovation in governance in two respects. First, innovation as an end is encouraged, particularly in industrial policy. Specialized measures designed to boost select market sectors have been adopted successfully over objections that “governments were not able to strategically identify targets.” Second, in- novation characterizes the means by which policies are implemented. In par- ticular, new state activism features partnerships between the government and the private sector that improve capacity on both sides. Empowerment and Innovation Strategies for Law, Justice, and Development 9 The authors describe a series of structural conditioning factors that have driven innovation in these various manifestations. Legal protections for prop- erty rights and against expropriation, arising from domestic constitutional law and from international treaty commitments, arguably forced the Lula admin- istration to pursue social policy goals through new techniques that ultimately were friendlier to both domestic and foreign investors. The innovative approach to governance that Trubek et al. describe is fur- ther detailed in the context of environmental and water law by Luciano Badini and Luciano Alvarenga in “The Role of the Public Ministry in the Defense of the Environment: Hydrogeographical Regions and Attitudes for Coping with Socioenvironmental Conflicts.” Badini and Alvarenga focus on the techniques that the Brazilian Public Ministry has used to achieve environmental protec- tion and conservation objectives related to freshwater. The authors begin by noting that the Public Ministry is a product of the 1988 constitution, and as such exemplifies that document’s combination of ambitious social goals and institutional prudentialism, as described in Tru- bek et al. Badini and Alvarenga then discuss the particular strategies adopted in relation to freshwater regulation: first, the reorganization of the territorial objects of regulation from a fragmented scheme to one based on the drainage basin as the basic unit of analysis; and second, the pursuit of nonjudicial and therefore presumably less costly approaches to conflict resolution. In the cases of both Brazil and China, we see the operation of the prag- matic and synthetic approaches that are also invoked in more general form in the discussions of Muller and Barendrecht and of Cissé. In both countries, successful reform policies arose out of careful attention to context and a com- paratively gradual pace. Concessions were made to external and internal con- straints of legal and economic liberalism, but socially transformative goals were no less vigorously pursued. A comparative reading of these chapters highlights a notable difference between the two countries: whereas in Brazil the overarching focus of socially transformative policies appears to have been direct poverty-reduction measures, in the Chinese context, more traditional economic growth has remained a priority; and although these measures are also achieving poverty reduction, they may do so at the immediate (though increasingly contested) expense of the environment and the displacement of socially marginal populations. The Global North Within good governance policy, anticorruption efforts play a major role in supporting rule of law reform. The legal innovations discussed by Rita Adam in “Innovation in Asset Recovery: The Swiss Perspective” and Karyn Kenny in “International Asset Sharing: A Multipurpose Tool for Development” point to the beginnings of an important trend in anticorruption policy—one in which developed countries interrogate their own legal systems to identify and cor- rect connections to theft of public assets in poor countries. The complicity of financial institutions and legal systems in the global north contributes to these The World Bank Legal Review10 broader enabling conditions. The temptation of financial corruption in poor countries is magnified by the ability to secure ill-gotten gains in legal jurisdic- tions out of the reach of local actors. Adam describes legal reforms in Switzerland that allow the Swiss Federal Council to freeze assets reasonably suspected to be the product of public theft and to repatriate those assets to the home country without the cooperation of either the home country government (which, Adam argues, may be too weak and ineffective to mount an effective request) or local prosecutorial au- thorities. Kenny describes multilateral, bilateral, and unilateral arrangements to share assets among countries when those assets constitute the proceeds of crime that implicates multiple jurisdictions, such as drug trafficking or money laundering. Much of the contemporary global anticorruption campaign has been ham- pered by a failure to realize that corruption in poor countries arises not only from local malfeasance, but also from enabling conditions across borders and within a globalized political economy. Both Adam and Kenny describe inno- vations that have disrupted and minimized the perverse incentives that for- eign jurisdictions offer to commit corruption. NGOs and Civil Society Whereas the chapters described above focus on governmental reforms, others in this volume take on the role of NGOs and civil society in pursuing legal in- novation and legal empowerment. In “The Political Economy of Improving Traditional Justice Systems: A Case Study of NGO Engagement with Shalish in Bangladesh,” Stephen Golub examines the advantages and disadvantages of employing traditional and customary forms of dispute resolution such as shalish. The advantages, ac- cording to Golub, include increased effectiveness due to greater legitimacy and lower user and operational costs. The disadvantages include unwieldi- ness and unpredictability, as well as reinforcement of traditional hierarchies such as gender inequality. Golub describes how NGOs have worked to modify traditional shalish so as to address some of the disadvantages. In so doing, these NGOs are taking an innovative approach to the goal of increasing access to justice. Rather than replacing traditional justice with a legal transplant, they are seeking to adapt tradition to contemporary concerns while retaining institutional advantages. At the same time, extensive NGO involvement can raise questions of account- ability or neutrality in influencing the outcomes of disputes. Moreover, efforts to correct ingrained social prejudices may fail, resulting in their inadvertent retrenchment. Golub concludes by recommending a cautious optimism with respect to shalish but also emphasizes the need for further study, not only of shalish, but also of other fora for alternative dispute resolution. Empowerment and Innovation Strategies for Law, Justice, and Development 11 In “‘We Want What the OK Tedi Women Have!’ Guidance from Papua New Guinea on Women’s Engagement in Mining Deals,” Nicholas Menzies and Georgia Harley tell the story of a mining agreement negotiation in Papua New Guinea in which some participants in the negotiations represented wom- en as a community group. These interests were not represented by a formally constituted NGO, but rather more informally in the sense of women repre- senting a significant group in civil society. The participation of women in the OK Tedi negotiations is a promising ex- ample of bringing civil society to the table and more generally of recognizing the interests of noncorporate stakeholders in investment. Menzies and Harley identify specific characteristics that allowed the women representatives to ne- gotiate successfully—most important, the experience and skills of the negotia- tors themselves. Yet, the various benefits that were negotiated have suffered from spotty implementation. Once the agreement was concluded, the national govern- ment of Papua New Guinea failed to take an interest in implementing the measures it called for, and the negotiators left the scene, leaving the communi- ty ill-equipped to attend to implementation. This points to some of the struc- tural disadvantages of bringing civil society or the community in as a separate group in the formation of large foreign investment agreements. Although the “community development” aspects of the agreement represented a laudable innovation on the standard foreign direct investment model inspired by the goal of empowerment, further innovation in implementation will be required to realize this goal more fully. Multilateral Contexts Particularly in this age of globalization, the regulatory environment in most countries is significantly shaped by the values and practices of international legal regimes and organizations. These domains of international law extend across a range of subject matters, from human rights to finance. Innovations in this area involve creating stronger connections between the goals of particular specialized regimes. In “Human Rights and Development: Regime Interaction and the Fragmentation of International Law,” Siobhán McInerney-Lankford speaks to this question. Her chapter begins with a gen- eral observation of the phenomenon of fragmentation in international law and a demonstration of fragmentation in regards to human rights law and devel- opment law. Institutionally, these fields remain largely separate. McInerney-Lankford argues, however, that there is also an increasing convergence between human rights and development. Substantively, this con- vergence arises in “shared principles such as equality, participation, account- ability, transparency, and voice, as well as in attention to vulnerable groups.” These policies are acknowledged by international organizations from the United Nations to the International Finance Corporation. The World Bank Legal Review12 However, “not all such provisions translate into a reliance on human rights in a direct operational sense.” McInerney-Lankford points to region- al systems, particularly those in Europe, that intertwine human rights and development more extensively. For example, the European Union formally incorporates human rights principles in its economic partnerships with non- European countries. Such integration, McInerney-Lankford believes, should be more broadly adopted. In this way, she calls for regime interaction as both an innovation and an empowerment strategy. Ideally, international law will eventually consist of “human rights as a shared legal framework, highlighting both partner and donor obligations under international human rights law and of- fering concrete operational entry points for their application in development activities.” In “Beyond the Orthodoxy of Rule of Law and Justice Sector Reform: A Framework for Legal Empowerment and Innovation through the Conven- tion on the Rights of Persons with Disabilities,” Janet E. Lord, Deepti Samant Raja, and Peter Blanck show how this convention—one of the newer ad- ditions to the United Nations’ “core” human rights treaties—innovates by establishing extensive guidelines for domestic implementation of the trea- ty’s principles. In “Transforming through Transparency: Opening Up the World Bank’s Sanctions Regime,” Conrad C. Daly and Frank A. Fariello, Jr., describe the Bank’s sanctions regime, which was established in 1996 to combat corruption and fraud in the disbursement of funds. The regime forms part of a greater ef- fort by the Bank to increase accountability and transparency in its operations, and stands alongside better-known innovations of the Bank such as its Inspec- tion Panel, which examines compliance with Bank protocols more broadly. Such reforms represent commendable efforts to bring good governance policy home; that is, to prioritize good governance principles not only in bor- rower countries but also in the Bank’s own institutional practices. One ques- tion that emerges in considering these reforms is why the Inspection Panel and the sanctions regime are separate institutions. It seems debatable whether the reasons for such separation extend beyond mere historical contingency. As these kinds of internal reforms develop, perhaps the Bank will integrate and consolidate its various monitoring functions. In “Intellectual Property: Facilitating Technology Transfer for Develop- ment,” Roy F. Waldron discusses the innovative arrangements that phar- maceutical companies are entering into with public sector actors in order to increase access to medicines, framed by the author as the transfer and applica- tion of medical technology to national public health. Such innovations are directly linked to empowerment in that they may allow developing countries to increase levels of public health in vulnerable populations and in society more generally. Although many of the specific de- tails of these agreements are not discussed for reasons of confidentiality, they Empowerment and Innovation Strategies for Law, Justice, and Development 13 appear to be highly promising responses to the problem of access to medi- cines, in which the research and development prowess of pharmaceutical companies can be harnessed by nonprofit organizations with public health as their main priority. These arrangements involve a number of different types of international organizations, including the World Intellectual Property Organization (WIPO), the Joint United Nations Programme on HIV/AIDS (UNAIDS), and the World Health Organization (WHO). These organizations often take leading roles in these arrangements, as do other nonprofit and research organizations such as the Oswaldo Cruz Foundation in Brazil and the Geneva-based Drugs for Neglected Diseases Initiative. Furthermore, these initiatives take place against the backdrop of inter- national economic law established by the World Trade Organization (WTO) Agreement on Trade-Related Intellectual Property Rights (TRIPS). Since the adoption of TRIPS, the WTO membership has taken several strides to clarify that the more stringent patent-protection rules in TRIPS should not apply to many developing country access-to-medicine issues.5 These developments in international intellectual property rules have re- arranged the leverage of the parties Waldron describes in his chapter. These parties are “bargaining in the shadow of the law”6—in this case, TRIPS law. Thus, although it is true that, as Waldron points out, pharmaceutical compa- nies are willing to engage in these technology transfer agreements only be- cause patent-protection rules are in place, willingness is likely enhanced by the emergence of legally valid exceptions to those rules. In other words, these companies have an incentive to reach voluntary agreements rather than be subjected to the compulsory licensing permitted by the TRIPS exceptions. In “OHADA Nears the Twenty-Year Mark: An Assessment,” Renaud Beauchard looks at the regional context of the Organization for the Harmoni- zation of Business Law in Africa (OHADA). An ambitious integration scheme, OHADA represents a step forward for the region in terms of the recognition of the benefits of intraregional trade. At the same time, OHADA bears signs of adverse side effects of legal transplantation. Considering the chapters on China presented in this volume, a comparison between modes of transplan- tation is perhaps instructive. Whereas China’s transplants were relatively piecemeal, OHADA constituted a major and sudden overhaul involving some elements that were not particularly useful in the local context, such as a bankruptcy act. Whereas China’s reforms integrated aboriginal practices, OHADA’s seemed to ignore local practices and instead emphasized uniformity and conformity with national and international standards. 5 WTO Declaration on TRIPS and Public Health, WT/MIN(01)/DEC/2 (Nov. 20, 2001), which was followed by the Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (Sep. 2, 2003). 6 Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law, 88 Yale L. J. 950 (1979). The World Bank Legal Review14 For example, the author discusses the difficulty in convincing local actors to settle transactional matters according to OHADA law: they observe that the complex structure of local markets in the central location of Cotonou “op- erates almost entirely outside the realm of formal law and ignores OHADA.” Although some efficiencies are probably be gained by coming into compli- ance with OHADA, the possibility of competing efficiencies of local practices and “private ordering”7 appear to have been wholly dismissed, creating the danger that OHADA will cause greater disruption than improvement of re- gional markets. Given these difficulties, the history recounted in Marc Frilet’s “Legal In- novation for Development: The OHADA Experience” is instructive. Frilet explains that OHADA drafters sought to correct deficiencies in business law practices in the newly independent francophone African countries. Because of difficulty in ascertaining applicable principles of local law, and other in- formation and capacity asymmetries, Frilet states, French law firms servicing local clients tended to provide “authoritative interpretations” based on the company law of their home country. Although this practice may have served as a useful stopgap measure in the early days of independence, the need for a clearer and more locally accessible legal framework inspired the efforts that culminated in OHADA. Thus, the reasoning behind OHADA was largely sound. The member countries stood to capture efficiency gains through legal harmonization that could spur much-needed regional growth. Moreover, the initiative and par- ticipation of distinguished experts and regional authorities to achieve this objective was commendable. As Frilet notes, however, both the substantive and the institutional realization of OHADA’s objectives remain incomplete. Substantively, the framework does not address topics that Frilet asserts are crucially important to current development strategies, such as public contract law. Institutionally, OHADA continues to struggle with implementation, both for reasons of capacity and because the framework is not yet widely under- stood by or familiar to local actors. Consequently, the “OHADA experience” offers insights into what kinds of innovative approaches are likely to be successful. Perhaps a more wide- ly consultative and participatory process could have yielded a more readily adaptive legal framework. In addition, OHADA reinforces the critical need for institutional and administrative capacity to implement legal innovations once adopted. At the same time, such recommendations come with a num- ber of challenges. OHADA drafters may have avoided wider consultation for fear that it would slow or stop momentum. And the devotion of scarce insti- tutional resources to the ambitious goals of OHADA requires costly choices both economically and politically. OHADA exemplifies both the appeal and the pitfalls of legal innovation strategies. 7 Melvin A. Eisenberg, Private Ordering through Negotiation: Dispute-Settlement and Rulemaking, 89 Harv. L. Rev. 637 (1976). Empowerment and Innovation Strategies for Law, Justice, and Development 15 Conclusion This volume reflects the interconnected roles that actors in development policy—governments, donors, lenders, investors, and civil society—play in shaping the substance and the effect of legal reforms. Legal innovation and empowerment for development recognizes and responds to this interdepen- dence. The analytics of attentiveness to context, participatory decision mak- ing, and systemic institutional assessment that emerge from these studies offer valuable contributions to the ongoing effort to revitalize contemporary approaches to law, equity, and global justice. 17 The Justice Innovation Approach How Justice Sector Leaders in Development Contexts Can Promote Innovation Sam muller and mauritS Barendrecht In September 2012, the UN General Assembly devoted its opening debate to the rule of law.1 A clearer signal that the community of states attaches great importance to the development of the rule of law is hardly imaginable. In De- livering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels, the secretary-general of the United Nations proposed a program called “delivering justice.” According to this report, the rule of law involves more than the state and its institutions: it “is at the heart of the social contract between the State and individuals under its jurisdiction, and ensures that justice permeates at every level.” The report continues: “responsibility for ensuring rule of law . . . lies with member States and their citizens.”2 Clearly, the rule of law is about more than simply setting rules; it also involves mecha- nisms to ensure that rules and dispute-resolution processes actually work. De- livering Justice contains sections about budgeting and planning, accountable and transparent delivery at the national level, monitoring, the role of civil society, and informal and traditional justice systems. Rather than encourag- ing states to enact more laws or ensuring that new rights are protected, the secretary-general proposes that states set goals for ensuring the rule of law, assume a monitoring role, measure effectiveness, perform benchmarking ex- ercises, and report progress against indicators. In sum, the report encourages state actors to rethink their role in delivering justice. This chapter develops this idea further. It shows how justice sector lead- ers—ministers of justice, secretaries-general of ministries, strategy depart- ments of ministries, chief justices, and directors of public prosecution agen- cies—can help society deliver justice rather than simply providing justice themselves. The chapter assumes that the process of delivering justice can be improved in a way similar to the delivery of health care, education, or electricity: through continuous innovation. It addresses the issue of how justice sector leaders can enable effective justice innovation. 1 See UN General Assembly Resolution A/Res/66/102 (Jan. 13, 2012), available at http:// www.unrol.org/files/GA%20Resolution%202012.pdf, paragraph 15 et seq. 2 See Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels, Report of the Secretary-General 2, 6–8 (Mar. 16, 2012). http://www.unrol.org/files/GA%20Resolution%202012.pdf http://www.unrol.org/files/GA%20Resolution%202012.pdf The World Bank Legal Review18 The analysis is written with the development context in mind. However, the suggested approach is relevant for all countries, albeit with different pri- orities and areas of emphasis. This chapter first explains the meaning of justice innovation. Then it sets out what a strategic justice leader can do to stimulate and consolidate rule of law. The chapter ends by explaining exactly why the justice innovation approach is worth pursuing and how it can help deal with a number of challenges. What Is Justice Innovation? Building on the Wikipedia definition, we say that justice innovation is the effort to create better or more effective justice products, processes, services, technol- ogies, or ideas that are accepted by markets, governments, and society. Two concepts stand out in this definition: the emphasis on better or more effective justice products and the need to ensure that these products are actually used and liked by all stakeholders. Rule of law assistance and justice sector budgets tend to fund the build- ing or strengthening of existing state institutions. The image of basic rule of law institutions has not changed much in the past 200 years. Courts, bar as- sociations, law-making procedures, and parliaments are all founded on ideas developed during a period in Western history when empires and kings were being replaced by states and democracies. Until recently, justice sector leaders and the organizations that supply development funds felt responsible for train- ing and resourcing judges, prosecutors, and police officers; building bar asso- ciations and national councils for the judiciary; developing constitutions and other laws modeled on Western standards; and setting up national gazettes in which to publish the laws. However, most rule of law mechanisms emerged independent of state in- stitutions. Informal justice systems—with communication, negotiation, me- diation, and adjudication—tend to develop whenever groups of people live or work together and conflicts must be managed.3 Protection of property rights is triggered by demand when people start investing in assets of a certain value that become scarce.4 Often, the state incorporates successful innovations that were developed privately. In line with this reality, and taking criminal justice as an example, the question at the core of the justice innovation approach should be not “how do 3 Deborah Isser ed., Customary Justice and Rule of Law in War Torn Societies (United States Insti- tute of Peace Press 2011). 4 See Francis Fukuyama, The Origins of Political Order, from Prehuman Times to the French Revo- lution 247 (Farrar, Straus and Giroux 2011) (“Of all the components of contemporary states, effective legal institutions are perhaps the most difficult to construct”); Lee J. Alston & Ber- nardo Mueller, Property Rights and the State, in Claude Ménard & Mary M. Shirley, Handbook of New Institutional Economics 573 (Springer Verlag 2008). The Justice Innovation Approach 19 we build a good prosecution service?” but rather “how do we empower and stimulate the stakeholders in the criminal justice system—judges, prosecu- tors, police officers, victim support services, civil servants, legal aid lawyers, psychologists working with drug offenders, academics, correction services, and social entrepreneurs—to continuously improve criminal justice mecha- nisms?” In other words, how can strategic justice leaders contribute to the innovation process so that more justice is delivered? What Can Justice Sector Leaders Do to Foster Innovation? The literature on innovation shows that successful innovation processes can- not be forced by following a simple set of prescriptions. Innovation is a matter of doing many things well and involves many factors.5 One survey found no less than 40 factors associated with successful innovation.6 Many are related to what happens on the ground, as justice sector professionals improve their processes step by step and through trial and error. But there are quite a few things that justice sector leaders can do to help justice innovation thrive.7 Generate Possibilities In the innovation initiation phase, the literature lists nine factors associated with innovation. Innovation is stimulated by creating a setting with diverse views, people, and backgrounds. Practitioners should focus on users of rule of law mechanisms and the people directly serving them. They know best what is needed and what might work. Time and space are required for innovation, as are clear goals for the innovation process. A justice sector leader can take several actions in this phase. Articulate a Clear Vision Innovation can be inspired by a clear vision that shows political commitment and a desire to redirect resources in a particular area. This is a critical factor because innovation—for instance, when dealing with employment conflicts— will require efforts from a wide variety of actors—for instance, employers, lawyers, trade unions, lawmakers, and courts. Typically, the organizations in the justice supply chain are independent and cannot be managed in one com- mon direction. They must be inspired, and they must see that others in the supply chain are adapting to change. 5 See The Best Story in Development, The Economist (May 19, 2012), available at http://www .economist.com/node/21555571, which cites a study of the many things that contribute to a significant drop in child mortality. 6 Nizar Becheikh, Réjéan Landry & Nabil Amara, Lessons from Innovation Empirical Studies in the Manufacturing Sector: A Systematic Review of the Literature from 1993–2003, 26 Technovation 644–64 (2006). 7 See the Innovation Model, available at http://www.innovatingjustice.com/innovationlab /innovation-assistance/innovation-model/?subcategoryID=15535, developed on the basis of factors that have been found to support innovation in the public sector. http://www.economist.com/node/21555571 http://www.economist.com/node/21555571 http://www.innovatingjustice.com/innovationlab/innovation-assistance/innovation-model/?subcategoryID=15535 http://www.innovatingjustice.com/innovationlab/innovation-assistance/innovation-model/?subcategoryID=15535 The World Bank Legal Review20 Politicians are subject to many pressures and can unknowingly sow con- fusion. A minister may make a speech one day in which he (or she) states that access to justice should be improved. The next day he might argue before a different audience that courts are overburdened and that people should do more to resolve their own conflicts. The visions of justice sector leaders should be realistic: in many postconflict contexts, donors demand the articulation of a national rule of law plan. (Interestingly, the donor states that demand such national rule of law plans rarely have one themselves.) Those plans are often very wide in scope (they are, after all, “national”), they rarely clearly priori- tize, and they often contain unrealistic timelines,8 making it hard for potential innovators to coalesce around a common agenda. To be realized, a vision must be as specific as possible, couched in plain language, ambitious but doable, and consistent, not changing with every new administration. The Millennium Development Goals are an excellent example of a clear, concrete, ambitious, doable, and consistent vision. Other examples of justice innovation visions are “to increase the number of people living on land and in houses with tenure security by 20 percent in the next year,” “to make a judge available to every village of more than 500 people within the next two years,” and “to ensure that employers and employees get a solu- tion within two months after filing a claim.” It would not be difficult to list a number of priorities for justice sector innovation based on an assessment of the most frequent and urgent justiciable problems the population experiences; such surveys have been done before.9 Break the Rules Innovation means doing things in new ways. The innovation literature urges innovators to challenge every rule of the game. For justice sector profession- als, this directive creates a dilemma, because their legitimacy is built on fol- lowing the rules, not breaking them. Changing procedures in a relevant way almost always requires a change in the rules or at least in the way rules are applied. So everywhere in the world, professional judges, lawyers, and oth- ers are more likely waiting for the rules to change than taking initiatives to improve procedures. Justice sector leaders can address this dilemma by allowing experiments, provided that the experiments are clearly motivated by goals such as decreas- ing costs, preventing error, increasing procedural justice, or speeding up 8 One of the more extreme examples is the Afghanistan Compact, agreed to between Afghani- stan and the international community, in London in 2006, which provides as benchmarks: “By end-2010, the legal framework required under the constitution, including civil, criminal and commercial law, will be put in place, distributed to all judicial and legislative institu- tions and made available to the public” and “By end-2010, functioning institutions of justice will be fully operational in each province of Afghanistan, and the average time to resolve contract disputes will be reduced as much as possible.” 9 See Basic Justice Care, available at http://www.hiil.org/publication/strategies-towards -basic-justice-care, which lists some basic justice needs. http://www.hiil.org/publication/strategies-towards-basic-justice-care http://www.hiil.org/publication/strategies-towards-basic-justice-care The Justice Innovation Approach 21 trials. Instead of stressing formal barriers to new solutions, justice sector lead- ers can urge stakeholders to develop, try, and test new procedures and to ask for changes in the rules if necessary. Procedures for experimental treatments in the health care sector may be a source of inspiration. Foster Competition Innovation is hardly conceivable without competition. Innovation in an envi- ronment like Silicon Valley is not based on monopolies and rigid agreements between players as to who will deliver what to the exclusion of others. Such incubators are messy, chaotic places where smart ideas compete with other smart ideas for funding, duplication is not frowned upon, and the shared as- sumption is that the best idea will win out in the end. What is “best” is mea- sured by sales figures, demand by clients, and the willingness of venture capi- talists to invest. Organization is limited: it is aimed at creating a place where innovators can meet other innovators and where people who are interested in funding start-ups can find the best ones. What happens next is thanks to the magic of the marketplace and innovation. Can this concept be transposed to the world of order, norms, and justice? Not if one perceives the delivery of justice as the application of a master pro- gram emanating from a state’s constitution. In the real world, delivering justice is a messy process, as every practicing lawyer will testify. There are many ways to solve conflicts, and many rule makers (national, international, local, formal, informal, public, private) work on the same problems. Justice sector innova- tors should be able to develop the best approaches in an attractive, competitive environment in which there are a few generally accepted ways to measure potential success of innovations (such as satisfaction of all types of users).10 Fostering competition in the justice sector can be part of a ministerial in- novation policy. This policy would put the minister less in the position of the holder of power who acts, and more in the role of creating a level playing field to make sure that the fairest, most effective, fastest, and lowest-cost solutions survive. For example, take the provision of fair and efficient dispute settlement processes for employment conflicts or coping with the aftermath of large- scale violence. Various civil and criminal public courts might offer different procedures (national, international), industry tribunals, truth and reconcilia- tion commissions (local or national), commissions establishing adequate com- pensation, semibinding mediation services based on existing informal justice mechanisms, or online dispute-resolution platforms.11 10 See Non State Security and Justice in Fragile States, Overseas Development Institute Briefing Paper 73 (Apr. 2012), which also lists some useful rules of engagement in respect to nonstate actors, available at http://www.odi.org.uk/resources/docs/7640.pdf. 11 See, for example, David Pimentel, Rule of Law Reform without Cultural Imperialism? Reinforcing Customary Justice through Collateral Review in Southern Sudan, 2 Hague J. on the Rule of L. 1–28 (2010). http://www.odi.org.uk/resources/docs/7640.pdf The World Bank Legal Review22 In the Netherlands, E-Court promises its clients quick and cheap awards by arbitrators for money claims. Its initiators tell a story of many obstacles based on resistance from bailiffs, state courts, and the ministry of justice, who all saw the existing way of doing things threatened by the concept of E-Court rather than welcoming a new supplier of fair and speedy solutions.12 Yet, this innovation forced the courts to rethink their ways of dealing with similar claims, seeing that the income for the state justice sector from money claims was no longer guaranteed. Did fostering competition enhance the perfor- mance and effectiveness of state courts and private sector dispute resolution? Competition requires a level playing field based on transparency of quality and costs so that clients seeking access to justice can make informed choices and defendants are protected against unfair procedures. In theory, it should be possible, for example, to send all users of a justice process a brief e-mail or text message on their mobile phones asking them to assess a court process they have just gone through based on a number of criteria.13 Their responses could be aggregated and fed into a website for all to see. And based on that, justice clients, justice providers, and ministry officials could see what works best. Justice sector leaders can foster competition by making the performance of justice services more measurable and transparent, by avoiding general monopolies, and by allowing differentiation and specialization. Develop Innovations Once the innovators are at work, the most fruitful ideas must be selected for the actual innovation process. This requires a situation where people with a positive attitude and sufficient resources can nurture the innovative concept. Partnerships between public services providers and private sector organiza- tions can be very fruitful: legal expenses insurance companies can help ensure access to legal aid; online dispute-resolution platforms can be integrated into court procedures. In today’s world, these are no longer rich-country options. Building a prototype early on is recommended, as well as involving end us- ers in the development process. Again, a justice sector leader can take specific actions. Manage Risk Once the developing process starts, a safe environment in which to develop a new concept, allowing for trial and error, is important. In an environment that is not “safe,” where failure is immediately linked to blame and consequences, innovation tends to be difficult. The appetite of the public for trial and er- ror in the justice sector may not be big, however. A minister of justice may be genuinely committed to creating more room for such an approach, but he too is subject to cabinet, parliamentary, and media scrutiny. So creating safe 12 See http://www.innovatingjustice.com/innovations/e-court-the-first-online-private-court. 13 See, for example, the measuring access to justice tool at http://www.innovatingjustice.com /innovations/measuring-the-costs-and-quality-of-access-to-justice. http://www.innovatingjustice.com/innovations/e-court-the-first-online-private-court http://www.innovatingjustice.com/innovations/measuring-the-costs-and-quality-of-access-to-justice http://www.innovatingjustice.com/innovations/measuring-the-costs-and-quality-of-access-to-justice The Justice Innovation Approach 23 spaces for experiments requires risk management. The minister must build it upward within the cabinet, vis-à-vis the prime minister or president and with respect for parliament. The minister of justice must also have a smart media strategy. The minister of justice must project a strong commitment to gradual innovation processes, allowing for trial and error at the ground level, where the innovations need to come from. Quick wins are likely to be important here—specific improvements that show that the innovation climate is produc- ing results, such as savings in the budget, a higher level of satisfaction from victims, more efficient court hearings, less recidivism, or decreasing juvenile delinquency. Reward Innovation Champions People are important. Almost all successful innovations are linked to a key person who devoted years of hard work to making a dream come true. The justice sector is not very good at rewarding such innovation champions. Mak- ing substantial money from innovation is hard, and one of the strengths (and weaknesses) of the justice sector is stressing the professional roles of judges and civil servants rather than personal qualities and strong personalities. A minister of justice is in a unique position to reward people who have worked for many years on improving procedures or systems of rules. Attaching peo- ple’s names to innovations can be done easily; one should never underesti- mate the effect of simple and consistent praise for good achievements.14 Fund Early Development Many innovations in the justice sector—good as they are—trip over two wires: funding for early development and funding for a sustained period of time. The justice sector tends to be funded in a rigid way. The budget and plan- ning cycle is generally quite short. Budgets are structured around fixed de- liverables, which rarely if ever include money for systematic research and development. Courts cannot invest money now that they can recoup in the next years by cost savings or by an increase in court fees for better services or more plaintiffs bringing cases. Justice sector donors may be interested in trying new procedures, but they tend to want specific deliverables: so many judges trained, so many courts and prisons built, a bar association set up. The situation is slightly different in the legal services industry, where research and development budgets from suppliers to law firms have created innovations in specific areas, such as software to help with e-discovery. A minister of justice can make sure that research and development bud- gets exist and that there are ways to recoup initial investments. He can do that within his own ministry, and he can initiate public-private partnerships with 14 An excellent example is the relationship between the International Criminal Court and the partners of the Legal Tools database and Case Matrix Network. The partners carry the costs of their contribution to the network but are also part of the innovation team. Signs of appre- ciation and commitment by the court stimulate the partners in this innovative network. See http://www.legal-tools.org/en/what-are-the-icc-legal-tools/. http://www.legal-tools.org/en/what-are-the-icc-legal-tools/ The World Bank Legal Review24 donors that provide investments in justice innovation with a commitment, for example, that the ministry will take over responsibility for funding the ser- vices once an innovation has been successfully developed. Developing states can lead the way here. Replicate and Scale Up Once an innovation is up and running, its potential for replication and scaling up should be exploited. Models for interactive court hearings developed for civil justice courts can be adapted to administrative law or criminal justice. What has been developed in one court may be useful for similar courts in other countries, but standardizing new practices too early may stifle innova- tion. Change management is necessary as well. Create Incentives A minister of justice can create incentives for justice leaders to try out well- tested innovations that have been developed elsewhere. Allocating extra bud- gets to those who are willing to adopt an innovation is one method. One factor inhibiting justice sector innovation is that each court in each country tends to develop its own working methods, without relying on external suppliers of procedures, supporting software, or protocols for dealing with certain types of crime. A minister of justice can urge justice sector organizations to consider buying tools that are readily available, either those developed by specialized private sector companies or those developed by colleagues in the public sec- tor. If a worldwide market for justice sector technologies were to evolve, the rule of law could be enhanced substantially and many cost savings would be possible. Ministers of justice from developing countries have more choice than ever. Tanzania need not look only at things that worked in Germany, the United Kingdom, or France; it can also look at innovations from, for example, Brazil, India, South Africa, Ethiopia, and Rwanda. Be Aware of Disruptive Innovations Justice sector leaders should be aware of the possibilities of disruptive inno- vations. Online services, such as those offered by Legal Zoom,15 disrupt the market for lawyers and notaries in civil law countries, who are likely to pro- tect their markets by favoring legislation that has been designed without new possibilities in mind, such as the prohibition of legal advice by nonlawyers or the monopolies of notaries public. Because innovations can make basic justice care available to groups that were unable to get any legal assistance in the past, there is every reason to create a level playing field for such new technolo- gies. The paralegal program Timap for Justice has had a disruptive effect on the legal services market in Sierra Leone.16 15 See http://www.legalzoom.com/. 16 See http://www.timapforjustice.org/. http://www.timapforjustice.org/ http://www.legalzoom.com/ The Justice Innovation Approach 25 Consider Long-Term Business Models Assuring longer-term funding for successful justice innovations after the re- search and development phase is often challenging. One of the reasons for this is that consideration of such funding tends to start only once an innovation has been developed. Justice sector leaders should be thinking about the man- agement and budgeting of research and development processes right from the start of any justice innovation initiative.17 Analyze and Learn Innovation cannot exist without critical reflection. Justice sector leaders should ensure that monitoring mechanisms are in place and that new insights can be implemented in improved versions immediately (real-time learning). One reason why the health care sector is so innovative is that benchmarks for new treatments are easy to establish: symptoms disappear and the patient feels better and does not return with the same complaints. Similar metrics for the justice sector would greatly enhance innovation processes, for example, through lower costs, timelier decisions, and higher satisfaction of users (pro- cedural justice, outcome justice). A minister of justice can ensure that a segment of the core budget is re- served for developing such measurement tools and for applying them to the processes and procedures of the system. This is an area par excellence where the minister can enlist civil society organizations, academic networks, and external donors. Civil society organizations can be stimulated to play a role in assessing elements of the justice system and showing where improve- ments are needed. Outcomes measurement could interest donors; and more and more academic institutions are developing rule of law measuring tools.18 What the minister cannot outsource is working with senior civil servants to build a culture in which the challenges that measuring makes visible are har- nessed toward justice innovation. Challenges and Benefits of a Justice Innovation Approach The best way to make the case for a new role for justice sector leaders is to provide an example. Tunisia will go down in history as the spark that set off a forest fire in the Arab world. After President Ben Ali fled, a transitional gov- ernment organized rather effective and open elections, on the basis of which a constitutional assembly worked on a new constitution; as of July 2012, a provisional government was running the country. Ambitions and expecta- tions are high, also relating to the rule of law. There is a general yearning for a better justice system. However, the challenges are tremendous, and there are 17 A very useful tool for this is http://www.businessmodelgeneration.com. 18 For a good overview, see Special Issue on Measuring Rule of Law, 3(2) Hague J. on the Rule of L. (Sep. 2011). http://www.businessmodelgeneration.com The World Bank Legal Review26 no easy answers.19 Stimulating gradual innovation processes around practical problems and showing quick wins may be the most promising way forward. However, justice sectors leaders in Tunisia and other countries in transi- tion face the following challenges. Lack of Trust In Tunisia, a new social contract is being put in place in the midst of a difficult economic and social context. Trust in the state is low.20 For many citizens, state institutions are linked to capricious behavior by people in positions with au- thority. So most people avoid getting in touch with the state institutions; the idea that law protects and can work for people needs to be sold. State institu- tions are not automatically viewed as legitimate. Trust must be regained. The World Development Report 2011 (WDR) con- vincingly argues that legitimate institutions are the best immunizer against internal and external stresses such as the ones Tunisia faces.21 The WDR shows that legitimacy comes with the responsiveness of institutions and that “capac- ity, inclusion, and accountability” are needed.22 In many developing countries, state institutions have limited capacity, are not seen as fully inclusive, and face little accountability. To build legitimate institutions, the WDR argues, justice sector leaders must work from the bottom up, with “good enough coalitions” to create quick and visible wins that show that rule of law is essential. Any minister of justice can build on processes that work in a country. By examining at informal justice systems for medium-level crime, rule-making processes in specific industries, or court procedures giving effective protec- tion against eviction, the minister of justice can stimulate the people involved to innovate and extend these services to the more urgent justice problems the state faces. Coalitions can be built to nurture these processes and to shield them against attempts to corrupt them. Lack of Funds Unemployment, especially in youth, is very high in Tunisia, making invest- ments in labor-intensive industries a priority among the many other economic 19 To name a few: budgets are limited, ideas of justice differ, trust in public officials in the justice sector is limited, and expectations are high. In May 2012, a dispute arose between the government and the association of judges after eighty-one judges were fired for alleged corruption; see http://www.tunisia-live.net/2012/05/31/judges-strike-lifted-following -agreement-with-ministry-of-justice/. 20 See, for example, a survey by the World Justice Project according to which 51 percent of Tunisians believe that the police forces are the most corrupt institution in Tunisian society, available at http://www.tunisia-live.net/2012/05/29/according-to-poll-80-of-tunisians -feel-free-to-express-themselves/. See also remarks by the head of the national anticorrup- tion agency during a HiiL seminar held in Tunis (Apr. 2011), on record with the authors. 21 World Development Report 2011: Conflict, Security and Development 74 et seq. (World Bank 2011). 22 Id., at 84. http://www.tunisia-live.net/2012/05/31/judges-strike-lifted-following-agreement-with-ministry-of-justice/ http://www.tunisia-live.net/2012/05/29/according-to-poll-80-of-tunisians-feel-free-to-express-themselves/ http://www.tunisia-live.net/2012/05/31/judges-strike-lifted-following-agreement-with-ministry-of-justice/ http://www.tunisia-live.net/2012/05/29/according-to-poll-80-of-tunisians-feel-free-to-express-themselves/ The Justice Innovation Approach 27 challenges. In 2009, the Tunisian GDP stood at around US$40 billion, or US$8 per person.23 This is three to five times less than the GDP in Euro Area coun- tries, making it inconceivable that Tunisia will be able to invest heavily in court infrastructure and expensive professionals to deliver justice sector ser- vices. But Tunisian citizens do not want less “justice” than European ones, nor should they be asked to accept less. So a country like Tunisia has every inter- est in stimulating innovation in the justice sector so that it can deliver better justice for its money. Innovative ways to deliver justice at low cost can be found throughout the world; a transitioning country such as Tunisia presents a window of op- portunity to adopt and adapt these innovations to a local setting. Can court processes be organized in such a way that more solutions are delivered per judge? In Nicaragua, the Facilitadores Judiciales program equipped a judge with a team of facilitadores, who live in villages far away from the courthouse. They mediate under the judge’s supervision and assist with bringing the cases that do not settle to court. Sierra Leone and South Africa pioneered the use of paralegals at a fraction of the cost of training judges and lawyers. In large- scale litigation, which will also occur in Tunisia, expert evidence is often key. Increasing the reliability of the fact-finding process and decreasing the costs of dealing with expertise were the goal of a procedure for a dialogue between experts at a court hearing developed in Australia.24 Online dispute resolution now resolves 60 million disputes between buyers and sellers on eBay, holding promise for dealing with large numbers of disputes anywhere in the world.25 Power Relations Influence on justice sector institutions is always part of a broader struggle for power, especially in situations of transition. Military versus civilian power brokers. Landowners versus landless. Employers versus employees. Domi- nant ethnic groups versus groups that feel oppressed. Secular versus religious norms. Rule of law gets politicized quickly. The stimulation of justice innovation can be a road to reform without po- litical turmoil. It is less about big principles (which is not to say they do not count) and more about little steps that deal with specific problems. Gradual but deliberate improvement of employment complaint procedures can be organized from the bottom up: targets can include more voice for parties at hearings, speedier resolution, more settlement, lower costs, clearer criteria for remedies, and clearer reasons in judgments. This approach is likely to be more effective than a heated discussion about the independence of courts or whether employees should have protection against dismissal. Innovation in- cludes developing transparent monitoring mechanisms that show the extent 23 The Economist, World in Figures, 2012, at The Economist website. 24 See http://www.innovatingjustice.com/innovations/concurrent-expert-evidence. 25 See http://pages.ebay.com/coverage/index.html. http://pages.ebay.com/coverage/index.html http://www.innovatingjustice.com/innovations/concurrent-expert-evidence The World Bank Legal Review28 to which the clients of the courts experienced a neutral procedure with equal opportunities for both parties. Indonesia has found interesting ways to cope with the sharia versus secu- lar dilemma. The area of family relationships is perhaps the foremost area where sharia law has impact (corporal punishment in criminal law is seldom applied in practice in most countries that have sharia law). Facing a choice between formal courts and religious courts, Indonesian couples wanting a di- vorce overwhelmingly choose religious ones. Religious courts are more open to innovation, working in close cooperation with Australian courts to improve their services. Transitional Justice Tunisia is a place where the concept of transition permeates. The judicial or- ganization needs fundamental reorganizing: some judges too closely linked to the former regime may have to go, a role for council for the judiciary must be found, performance mechanisms to hold judges accountable and effective ways to distribute budgets must be developed, and the question of special- ization versus generalization is on the table, as is the question of how it can support courts. Law making represents a huge challenge. The country is em- barking on a fundamental redesign, facing the task of ensuring the quality and coherence of laws. Both the judges and the clients of the justice system need better access to legal information. Key elements of the “hard” justice infra- structure—courthouses and published and available laws—are in bad shape. For a minister of justice, these issues are fraught with choices for which it will be difficult to build support within the courts and the institutions involved in law making. A strategy based on creating a level playing field for justice innovation assumes that justice sector innovators take initiatives to start improving ser- vices. And those improved services should be the point of departure, not the organization itself: ways to create needs for higher quality, more trustworthy services, and lower-cost delivery. For example, if a group of judges decides that disputes over land is an urgent priority and they propose terms of refer- ence for a new procedure, such as transparency of criteria for allocating land and compensation, the more organizational problems of specialization and court independence may be solved on the way. The goal is for the government to be less the structure that is supposed to solve a problem and more a place where leaders work to empower those closest to the problem to creatively resolve concrete, close-to-the-ground issues. Conclusion Justice sector leaders can improve the rule of law by incorporating the justice innovation approach. Because this approach enlists the whole of society (jus- tice users and providers), benefits from best practices and technologies devel- oped in other countries, and harnesses the knowledge of those working on The Justice Innovation Approach 29 problems already, it can deliver more value and justice with less money than other approaches. However, organizing the necessary space for justice innova- tion is not easy in any context, and is even more challenging in the context of a developing state. Good justice sector leadership is a key component of the effort. Legal sys- tems have their own dynamics and tend to move slowly. The WDR estimates that it takes 17 to 41 years to establish basic trust in the rule of law.26 The at- titude of expecting central, top-down coordination is very strong in the justice sector, and many very good ideas now wait until a new constitution is en- acted, the law of procedure is changed, or a budget is cleared. However, there are many opportunities for a justice sector leader to create and manage justice innovation in the meantime. There is certainly risk involved in doing so, but the potential benefits are huge. 26 World Development Report, supra note 21, at 11. 31 Legal Empowerment of the Poor: Past, Present, Future Hassane Cissé The concept that law plays a significant role in promoting economic devel- opment is well established. The nature of that significance, in the context of development narratives, traditionally has been rooted in law’s connection to strong institutions and good governance: the presence of law can be consid- ered a prerequisite for effective government. Effective government has come to be treated as an essential ingredient in the development recipe, and law or, more specifically, the “rule of law,” is the condition for that ingredient. In an effort to reimagine how law can fit into development strategies, scholars and practitioners have widened the traditional focus on institutions and government machinery to bring the people themselves into view: the poor have become a subject in law and development discourse, rather than simply the indirect, long-term beneficiaries of institutional reform. Many scholars and practitioners now argue that law can be used as a tool in the hands of the poor, a tool that they can use to improve their own lives. This process has become known as legal empowerment. This chapter maps the emergence and progress of the legal empowerment movement, if it can be called that. This field is still young, and disagreements over its direction are unresolved. Basic questions of priorities and strategies remain contested; assumptions must be tested further; more data need to be collected. Nevertheless, the movement has much promise and is gaining ac- ceptance. It should be taken seriously by everyone concerned with using the law to end poverty. The Emergence of Legal Empowerment and Its Place in the Rule of Law Agenda Legal empowerment of the poor (LEP) is a relatively new frontier in thinking about how the law can affect the lives of the poor and what can and should be done to empower the poor to use the law for their betterment. By evoking law and power together, LEP directly challenges traditional ideas about the role of law in the lives of the poor. At the same time, the LEP paradigm is not a complete rejection of other ways of theorizing about the purpose of rule of law in development. LEP both reaffirms and reacts against the older develop- ment agenda of advancing the rule of law, and remains closely connected to The author thanks Matthew Moorhead for his invaluable assistance in the preparation of this article. Stephen Golub and Sam Muller also provided constructive comments. Responsibility for errors or omissions remains with the author. The World Bank Legal Review32 it. To understand the origins and evolution of LEP, and possibly its future, one must also understand the nature of this connection with traditional rule of law approaches. The importance of the rule of law in human development is generally acknowledged, despite enduring disagreements about the degree of that im- portance. Lawyers, economists, and development specialists must continue to explore new ways in which the law can alleviate poverty. As practitioners endeavor to improve the imperfect understanding of the role of law in human welfare, advances continue to be made in rule of law scholarship.1 As new insights are uncovered, many traditional ways of thinking about how law can lift people out of poverty become ripe for reevaluation. As the scholarship grows and this process of reevaluation unfolds, elements of what might be termed the “classical rule of law approach” receive more critical attention. In particular, an excessive focus on institutions and state structures, a supposed hallmark of the classic rule of law approach, has been criticized for overlook- ing the needs of the poor. A growing awareness of this risk has caused scholars and development practitioners to conceive of a new way of thinking about how the law can contribute to development: LEP. A central claim of the LEP approach is that poverty endures because, in part, people are forced to live their lives without legal protection. The focus on legal empowerment is intended to strengthen existing and ongoing efforts to further the rule of law agenda. It is also, to some extent, a reprimand of those efforts. Legal empowerment as a strategy for development has gained prominence, in part, on the back of criticism of, or frustration with, the outcomes of the more established rule of law agenda. That agenda can mean many things to different people, and some sense of its meaning is set out here. “Rule of law” is a concept with a broad scope that was established as a development objective and method decades before LEP emerged. Generally, the rule of law is defined in one of two ways. The first emphasizes elements of substantive justice; the second emphasizes the procedural aspects of a system in which the rule of law prevails.2 The conditions of both definitions must be met if the rule of law can be said to exist in any given system. A functional rule of law system that provides both procedural effectiveness and substan- tive justice is obviously important to human welfare and the satisfaction of justice claims. What is less clear is exactly how much the rule of law matters, and how effective rule of law interventions have been in improving develop- ment outcomes for the poor. 1 See, for example, Thomas Carothers ed., Promoting the Rule of Law Abroad: In Search of Knowl- edge (Carnegie Endowment for International Peace 2006); James J. Heckman, Robert L. Nelson, & Lee Cabatingan ed., Global Perspectives on the Rule of Law (Routledge 2010); and Michael J. Trebilcock & Ronald J. Daniels ed., Rule of Law Reform and Development: Charting the Fragile Path of Progress (Edward Elgar 2008). 2 Paul P. Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, 467 Public Law (1997). Legal Empowerment of the Poor: Past, Present, Future 33 The impact of improvements in the rule of law environment on develop- ment outcomes is notoriously hard to quantify. A number of attempts have been made. Daniel Kaufmann and his colleagues measured several aspects of governance, including the rule of law, over time and across more than two hundred countries.3 They suggest that a nation’s GDP increases noticeably by moving ahead when improvements are made in an index of rule of law indicators. Despite efforts such as these, however, it may never be possible to measure the impact of the rule of law in neat percentages. Kaufmann’s study acknowledges that the difficulties inherent in proving a link between the rule of law and economic growth may preclude such measurement. Nevertheless, the study supports a general consensus that there is a positive correlation be- tween economic development and strong legal systems. The way in which the rule of law has evolved en route to becoming part of mainstream development orthodoxy is perhaps best exemplified by the ap- proach of the World Bank, one of the world’s foremost development institu- tions, to the issue. When the Bank realized that the rule of law and judicial reform were related to economic development, the Bank became involved in LEP efforts. The connection to economic development is a critical factor that enables the Bank to engage in legal reform, because its Articles of Agreement prohibit it from taking into account anything other than “economic consid- erations” in its lending operations.4 Before the Bank could be comfortable in- volving itself in LEP work, it needed to accept that the quality of governance affects economic development. This was a delicate task for an institution that is prohibited from “interfering in the political affairs” of its members, yet as evidence of the importance of governance and the rule of law in economic per- formance grew, the Bank responded. In 1990, the general counsel of the Bank issued a legal opinion concluding that the Bank “may favorably respond to a country’s request for assistance in the field of legal reform, if it finds it relevant to the country’s economic development and to the success of the Bank’s lend- ing strategy for the country.”5 Although hard to quantify, the correlation between rule of law indicators and economic development is real. Beyond this assumption, what matters to people is identifying precisely what kind of rule of law initiatives serve them best. As the field matures and the evidence of what works and what does not starts to mount, the “second generation” of rule of law scholarship is challeng- ing many assumptions about how to conduct legal reform and what to expect from the results. In the past decade, some scholars and commentators have 3 Daniel Kaufmann, Aart Kraay, & Massimo Mastruzzi, Governance Matters VI: Governance In- dicators for 1996–2006, World Bank Policy Research Working Paper No. 4280 (2007). See also, for example, Juan Carlos Botero, Robert L. Nelson, & Christine Pratt, Indices and Indicators of Justice, Governance and the Rule of Law: An Overview, 3 Hague J. on the Rule of L. 153 (2011). 4 International Bank for Reconstruction and Development, article IV, section 10. 5 Ibrahim Shihata, Issues of “Governance” in the Borrowing Members—The Extent of Their Rel- evance under the Bank’s Articles of Agreement 25 (Dec. 21, 1990). The World Bank Legal Review34 come to question the dominant ways of thinking about the rule of law. LEP has emerged from this persistent questioning. As Stephen Golub posits, LEP is partly an alternative to the perceived fail- ings of rule of law orthodoxy.6 Golub classifies many of the law-reform efforts of the major international development actors as top-down efforts that pay insufficient attention to the actual needs of the poor. According to Golub, rule of law orthodoxy has been said to focus “too much on law, lawyers, and state institutions, and too little on development, the poor, and civil society.”7 LEP is intended to address these particular deficiencies. In the words of critics such as Thomas Carothers, typical efforts to promote the rule of law cannot convincingly demonstrate “how the rule of law develops in societies and how such development can be stimulated beyond simplistic efforts to copy institutional forms.”8 LEP, however, is more focused on the real needs of the poor. As a development strategy, it has been said to both advance and transcend the rule of law. LEP advances the rule of law in the sense that em- powered people will be in a position to demand good governance, and it tran- scends the rule of law by lifting the focus from governance to more general poverty alleviation.9 A number of definitions of LEP are used in the literature. The UN Com- mission on Legal Empowerment of the Poor (CLEP) defines LEP as “a pro- cess of systemic change through which the poor and excluded become able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens and economic actors.”10 Golub expands on the basic definition of LEP by differentiating it from rule of law orthodoxy on four issues. First, LEP requires lawyers to view the poor as partners instead of simply providing advice. Second, the poor should aspire to influence public policy directly in order to avoid falling into a top-down approach. Third, LEP should employ nonjudicial strategies alongside strictly legal ones. Fourth, law should be integrated into a broader range of development-related activities.11 These features enable LEP to serve as a “useful organizing framework to navi- gate through the complex landscape which has resulted from the fusion of 6 The term “rule of law orthodoxy” is used by Frank Upham in Mythmaking in the Rule of Law Orthodoxy, Carnegie Endowment Working Paper No. 30, Rule of Law Series, Democracy and Rule of Law Project (Carnegie Endowment for International Peace 2002). 7 Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative, Carnegie Endowment Working Paper No. 41, Rule of Law Series, Democracy and Rule of Law Project 3 (Carnegie Endowment for International Peace 2003). 8 Thomas Carothers, Promoting the Rule of Law Abroad: The Problem of Knowledge, Carnegie Endowment Working Paper No. 34, Rule of Law Series, Democracy and Rule of Law Project 3 (Carnegie Endowment for International Peace 2003). 9 Golub, supra note 7, at 7. 10 Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone: Volume One, Report of the Commission on Legal Empowerment of the Poor 3 (2008). 11 Golub, supra note 7, at 4. Legal Empowerment of the Poor: Past, Present, Future 35 the two tectonic plates driving development today: governance and poverty reduction.”12 Cementing the Place of Legal Empowerment: The Commission on Legal Empowerment of the Poor Scholars such as Banik13 and Golub have been working in the area of LEP for years, but the idea that LEP can be a force for development gained international recognition when it became the subject of a landmark UN commission in 2008. The CLEP report brought international attention and credibility to LEP and provides a road map for mainstreaming LEP into development work.14 The report does not understate the view of the commissioners that legal empower- ment is of the utmost importance. Central to the report is the bold claim that “four billion people around the world are robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law.”15 Influential names lend their authority to this statement. The commis- sion was cochaired by former US secretary of state Madeline Albright and re- nowned Peruvian economist Hernando de Soto, and comprised 23 members, of whom 19 were current or former presidents, prime ministers, senior jurists, or other government officials of the highest rank. For the commissioners, poverty partly stems from “legal exclusion,” or exclusion from the protections of the rule of law. The report concluded that “by expanding and deepening legal protection, poor people will be better able to free themselves from poverty.”16 Four areas, or “pillars,” are critical to the task of extending legal protection to the 4 billion excluded people, accord- ing to the CLEP report. The first pillar, access to justice and the rule of law, is essential to the others. Legal empowerment is impossible if poor people do not have access to a functional judicial system of some kind. Efforts in this regard include a range of measures to make judicial systems more accessible to the poor and oriented to their needs. The three other pillars are legal rights: property rights, labor rights, and so-called business rights. The CLEP report emphasizes the foundation of LEP in international human rights law, particu- larly in Article 1 of the Universal Declaration of Human Rights, but it does not elaborate on the nature of this connection to human rights discourse.17 The CLEP report is a welcome contribution to the broader international development agenda. It moves from the traditional focus on strengthening laws and institutions to a focus on the needs of the poor. The prestige and 12 Ana Palacio, Legal Empowerment of the Poor: An Action Agenda for the World Bank 14 (2006). 13 Dan Banik ed., Rights and Legal Empowerment in Eradicating Poverty (Ashgate 2008). 14 Commission on Legal Empowerment of the Poor, supra note 10. 15 Id., at 1. 16 Gordon Brown, Foreword to Commission on Legal Empowerment of the Poor, supra note 10. 17 Commission on Legal Empowerment of the Poor, supra note 10, at 29. The World Bank Legal Review36 scale of the commission have permanently elevated the status of LEP as a development strategy and have similarly increased the general awareness of its purpose and benefits. The response to the CLEP report has included a UN General Assembly resolution endorsing the findings, as well as discussions about possible funding initiatives among key donors. Rather than assuming that the poor will automatically benefit by increas- ing the resources available to courts, the report argues that poverty is best addressed by moving resources and power directly into the hands of the poor. It provides a map to redirect the poverty-fighting rule of law agenda toward a more constructive path. Nonetheless, the report has been the subject of criticism. Golub, for ex- ample, criticizes it for unquestioningly adopting certain neoliberal economic assumptions, for attaching excessive importance to the role of legal exclusion in perpetuating poverty, for taking insufficient notice of preexisting research on LEP, for proposing a top-down approach to what is claimed to be a bottom- up development strategy, and for assuming that rational persuasion will suf- fice to convince elites to surrender political power to the poor.18 The CLEP report arguably overreaches in claiming that 4 billion people are impoverished as a result of their exclusion from the protection of the law. Many scholars, such as Banik, have noted that this claim is not properly sub- stantiated.19 In addition to legal exclusion, many important factors interact in complex and opaque ways to produce poverty, including cultural exclusion, economic failure, high population growth, and political instability. To over- emphasize the poverty-fighting effect of LEP is to risk undermining the entire LEP project. If the CLEP report risks overreaching in its 4-billion-people claim, the focus on four pillars is equally limiting. Property, labor, and business rights are not the only areas in which empowerment can make a difference in poor people’s lives. The poor must be empowered to gain access to education, to benefit from criminal justice, and to combat violence against women, for example.20 Certain policy prescriptions proposed by the CLEP report are vulnerable to the charge that they are unworkable in practice and do not acknowledge the entrenched political obstacles that stand in the way of LEP.21 The CLEP report says that political leadership is necessary for change and assumes that elites can be persuaded by rational arguments to empower the poor. In the words of 18 Stephen Golub, The Commission on Legal Empowerment of the Poor: One Big Step Forward and a Few Steps Back for Development Policy and Practice, 1 Hague J. on the Rule of L. 101, 105 (2009). 19 Dan Banik, Legal Empowerment as a Conceptual and Operational Tool in Poverty Eradication, 1 Hague J. on the Rule of L. 117, 118 (2009). 20 Banik, supra note 19, at 125. 21 Sam Muller & Maurits Barendrecht consider how justice sector leadership can overcome these obstacles in their chapter in this volume. Legal Empowerment of the Poor: Past, Present, Future 37 CLEP, LEP “does not require its political champions to be saints (although that could be useful) but only to recognize an enlightened self-interest . . . what better political legacy than to have made a lasting contribution to the develop- ment of one’s country.”22 The unavoidable truth is that power is a relative concept. When one per- son is empowered, the power that another person has over him or her is di- minished. In the relationships between people, power is both won and lost. In other words, the process of empowering people creates winners and losers. It is not realistic to assume that elites, when confronted by rational economic arguments, will surrender their relative advantage over the poor to further a greater good. Shifting power to the poor is a difficult and highly political task that requires a political strategy to accompany economic theorizing. A technocratic approach that fails to directly address local political exigencies will not succeed. In many developing countries, networks of elites connecting the government and private sector will staunchly resist LEP because LEP pre- sents a direct challenge to the existing power structure. As Matthew Stephens notes, the CLEP report does not adequately address this formidable challenge. The report contains “no strategy for political change, little evidence produced to justify the suggested reforms and an absence of implementable responses to turn theory into practice. These deficiencies diminish [the CLEP report’s] value to practitioners and will curtail its policy impact.”23 No commission, no matter how distinguished or experienced its member- ship, can reveal a magic recipe to make political obstacles to good develop- ment policy disappear. It would be unfair and unrealistic to demand such a recipe from CLEP. However, CLEP does not offer much guidance on this issue beyond stating that “politics cannot be wished away. Powerful actors must be co-opted, won over.”24 Many entrenched elites will not be amenable to co- option under any circumstances and will never be partners in LEP. If elites are uncooperative, the only approach that remains is a bottom-up strategy that empowers the poor and the disenfranchised to protect their own interests. This is, fundamentally, what LEP is about: empowering the poor to improve their own situation. Contemporary Issues in Legal Empowerment of the Poor As the responses to the CLEP report make clear, there are limits to what LEP can achieve and substantial barriers in the way of success. Although law has a significant role to play in defeating poverty, the poor themselves often see the law as a barrier to prosperity and security, rather than as a tool for overcoming 22 Commission on Legal Empowerment of the Poor, supra note 10, at 45–46. 23 Matthew Stephens, The Commission on Legal Empowerment of the Poor: An Opportunity Missed, 1 Hague J. on the Rule of L. 132, 147 (2009). 24 Commission on Legal Empowerment of the Poor, supra note 10, at 43. The World Bank Legal Review38 poverty.25 LEP is about transforming the way the poor experience the law, shifting from a constraining to an empowering experience. Efforts to move in this direction can be grouped by themes, or perhaps by challenges. This sec- tion explores a few of the more prominent issues faced by the LEP movement. Access to Justice The CLEP report’s focus on access to justice is appropriate. LEP has significant potential as a development strategy, particularly through the promotion of ac- cess to justice for the poor. Making justice available to the poor can unlock the greatest development benefits of LEP. Accessing justice means seeing wrongs righted and having the confidence that remedies are available to correct such wrongs that may occur. These are important outcomes to people everywhere. Confidence in the capacity to access justice gives the poor the green light to in- vest in their own future and that of their families, secure in the knowledge that their entitlements will be protected. More formally, “access to justice” means “the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards.”26 This definition acknowledges that access to justice is about more than sim- ply the formal, or official, justice system of courts and judges. Informal justice systems, often in the form of precolonial conflict resolution systems, have an essential role to play. Poor people in developing countries tend to seek justice from informal systems rather than from the formal court system.27 There is a long list of well-known obstacles between the poor and a just outcome in the formal justice system: procedural deficiencies, prohibitive costs, mistrust of the law, fear of the authorities, corruption, language barriers, excessive delays in decision making, and perceived institutional illegitimacy.28 These are just a few examples of the many reasons that formal justice systems are usually out of reach of the poor and why the poor turn to informal systems. Of course, formal systems are extremely important and must be strengthened. Informal justice systems alone are not a long-term solution to the problem of provid- ing justice to the general population. Informal justice systems can perpetu- ate discrimination against women or be problematic from other human rights perspectives. Nevertheless, allowing for these limitations, the role of informal systems in delivering justice to poor people must be acknowledged and sup- ported as part of any comprehensive LEP strategy. It must be noted that access to justice has been a concern of legal prac- titioners and legal policymakers for centuries and was a central objective of legal reform long before the emergence of LEP. The World Bank, for example, targeted access to justice in several of its earliest legal reform projects. Ac- 25 Commission on Legal Empowerment of the Poor, supra note 10, at 3. 26 UNDP, Access to Justice Is the Ability of People to Seek and Obtain a Remedy through Formal or Informal Institutions of Justice, and in Conformity with Human Rights Standards (2005). 27 Banik, supra note 13, at 14. 28 Banik, supra note 13, at 15. Legal Empowerment of the Poor: Past, Present, Future 39 cess to justice first appeared as a World Bank objective in 1996 in the Ecuador Judicial Reform Project.29 Since then, access to justice has been an objective in legal reform projects in countries such as Armenia, Bangladesh, El Salvador, Guatemala, Honduras, Kazakhstan, Mexico, Mongolia, Morocco, Peru, and the Philippines.30 Thus, although much that LEP offers is new, its concern with access to justice is not. What the proponents of LEP promise, however, is that LEP, with its focus on empowering those most in need of improved access to justice, can provide better ways of doing just that. A recent World Bank project in Sierra Leone is an example of a project designed to empower the poor to access justice. The World Bank’s Justice for the Poor program worked with Namati, an organization devoted to legal em- powerment, to train community-based paralegals to overcome obstacles in the delivery of health services.31 Inadequate or nonexistent health care is one of the gravest disadvantages endured by Sierra Leone’s poor. The delivery of health care services is impeded by corruption, mismanagement, and a lack of resources. The failure to provide health care on such a scale is a grave injustice, and the paralegal program is an attempt to use the law to empower Sierra Leoneans to demand justice from health care providers. Health care is a good candidate for a LEP strategy because the delivery of health services encompasses much more than medical staff and medicines. To be effective, the delivery of any public service must be accountable. Much of Sierra Leone’s underperformance in health care can be attributed to the failures of the state institutions that are nominally responsible for health care delivery. The paralegal program grew from the view that addressing these failures requires an understanding of the policy and regulations governing health care, which in turn means an understanding of what the state is sup- posed to provide and to whom, and where pressure should be applied when the state fails to deliver. Sierra Leone does not have enough lawyers for this task. In many of Si- erra Leone’s districts, community paralegals—that is, nonlawyers with some training in law and government administration—help citizens navigate gov- ernment services. Until now, however, paralegals have not been used to im- prove accountability in the delivery of health services. The Justice for the Poor program assesses whether paralegals help improve service outcomes by, for example, making regular, unannounced visits to the health clinic to help en- sure that maternal and child health services are truly provided free of charge. Ultimately, the goal is for paralegals to help empower their communities. A general increase in the level of “social accountability” in Sierra Leonean villages will help people access the services to which they are entitled. Once 29 Roberto Laver, The World Bank and Judicial Reform: Overcoming “Blind Spots” in the Approach to Judicial Independence, 22 Duke J. Comp. & Intl. L. 183, 196 (2012). 30 Id. 31 Justice for the Poor. The World Bank Legal Review40 taught how to pursue redress in the health system, people will gain experi- ence and confidence in engaging with state institutions and will learn how to hold them accountable. Gender Inequality In practice, empowering the poor largely means empowering women. The World Development Report 2012: Gender Equality and Development examines and details the many ways poor women are disempowered.32 Despite prog- ress in recent decades, the likelihood of women dying in childbirth in Sub- Saharan Africa and parts of South Asia remains comparable to that in Northern Europe in the nineteenth century.33 In many countries, women enjoy fewer legal protections and property rights than do men. Women are far more likely than men to work in low-paying, low-status “pink collar” occupations, to face life-threatening violence in the home, and to be unrepresented in senior lev- els of politics and management.34 In its extent, severity, and ubiquity, gender inequality is perhaps the most pressing area calling for LEP strategies. As the World Development Report concludes, gender inequality matters for two reasons: First, gender equality matters intrinsically, because the ability to live the life of one’s own choosing and be spared from absolute privation is a basic human right and should be equal for everyone, indepen- dent of whether one is male or female. Second, gender equality mat- ters instrumentally, because greater gender equality contributes to economic efficiency and the achievement of other key development outcomes.35 An example of the way in which targeting women can empower large num- bers of the poor and how grassroots legal empowerment can instigate change at a national level is a project conducted by the World Bank and its partners in Indonesia. The Bank’s Justice for the Poor program, together with the Aus- tralian Agency for International Development (AusAID), the Family Court of Australia, and PEKKA (an Indonesian civil society organization supporting women-headed households), developed a number of innovative programs to empower women to use their legal identity to exercise their rights and access benefits. A few statistics demonstrate the importance to poor people of establishing legal identity in Indonesia. According to the Indonesian Bureau of Statistics, women head almost 10 million Indonesian households.36 In order to access 32 World Bank, World Development Report 2012: Gender Equality and Development (World Bank 2011). 33 Id., at 2. 34 Id. 35 Id., at 3. 36 Indonesian Bureau of Statistics (Badan Pusat Statistik), Statistik Gender 2009 18 (Bureau of Statistics 2010). Legal Empowerment of the Poor: Past, Present, Future 41 government services such as health insurance, rice subsidies, and cash trans- fer payments, female heads of household must prove to local government au- thorities that they are, in fact, the head of the household. To obtain an identity card giving her head-of-household status, a woman must prove that, if she has been married or divorced, her marriage or divorce was legally registered. This presents a serious obstacle for many women. Research by PEKKA shows that more than 50 percent of the marriages and 86 percent of the divorces of its members are not legally registered because they were not brought before a court.37 In Indonesia, the relevant court is usually a religious court. The reli- gious courts handle 98 percent of divorce cases, which themselves account for 50 percent of all court cases in Indonesia.38 To access poverty alleviation programs, health services, and education programs for herself and her family, a woman must have a legal identity and a status as the head of her household. Legal marriage and divorce also matter to her children. Unregistered or illegal marriages and divorces, and the resulting lack of birth certificates for the children of such unions, feed an intergenera- tional cycle of poverty and social exclusion. When women are disempowered, their children and other family members often join them in poverty. The Women’s Legal Empowerment (WLE) program was designed to help women in West Java formalize their legal identity by building on PEKKA’s existing empowerment programs. The WLE program had both demand- and supply-side empowerment objectives. On the demand side, the program aimed to inform communities of their rights and encourage them to insist that those rights be respected; on the supply side, it aimed to improve the capacity of the government administration and legal system to recognize and protect the rights of poor women. The WLE program used various tools to work to- ward these objectives. In the villages, trained paralegals disseminated legal information about family law and domestic violence, provided assistance to local women, and supported grassroots advocacy efforts. A forum, compris- ing judges, public prosecutors, police, local government officials, NGO repre- sentatives, and academics, was established at the district level to conduct legal awareness and outreach activities. Women used the services of the paralegals and the forum members to obtain hundreds of birth certificates for their chil- dren and to organize circuit courts to visit villages to formalize marriages and divorces. The outcome was the empowerment to a transformative degree of the in- dividual women concerned. On a larger scale, the research and results gener- ated by the WLE and its associated projects contributed to policy develop- ments across Indonesia. After becoming aware of the problems of accessing justice in the religious courts, the government increased the religious courts’ 37 Justice for the Poor, Increasing Access to Justice for Women, the Poor, and Those Living in Remote Areas: An Indonesian Case Study, Briefing Note 6, No. 2 (Mar. 2011). 38 Id. Data taken from Supreme Court annual report for 2009. The World Bank Legal Review42 budget 18-fold in two years.39 New laws have been passed requiring Indone- sian courts to provide legal aid services to the poor, an encouraging example of the impact that LEP can have on policy making by elites. Property Rights LEP is a work in progress. Even as the concept has gained currency as a de- velopment strategy in government and international institutions, the contours and nuances of what LEP means in practice, or what a good LEP policy looks like, remain unresolved. To a frustrated observer, LEP may appear to suffer “from a lack of clarity at many levels of definition, operation, and evaluation.”40 The connection between theory and public policy has not been clearly iden- tified, despite the work of CLEP. Much research remains to be done about what policies and interventions are the most effective at empowering the poor. In the meantime, certain theories about the best kind of LEP policies remain hotly debated. The most important, and possibly the most contested, issue in the brief history of LEP concerns the protection of property rights. Hernando de Soto, the cochair of the CLEP report, has long argued that de- veloping countries are constrained by the dominance of informal economies.41 According to this view, without an effective legal system that recognizes and enforces property rights, a country cannot develop a functioning market and consequently cannot produce or allocate capital. If poor people in developing countries are to escape poverty, their property rights must be formalized and protected so that they can exploit the capital value of that property. This view forms a central pillar of the CLEP report, which urges develop- ing countries to extend property rights to more people by accommodating access to housing, protecting the supply of credit, enacting land reform, and standardizing and uniformly applying property law in the court system. This focus on the importance of formal property rights is influential, and variations of it are widely shared,42 but it has been criticized by some schol- ars. Alan Gilbert has said that de Soto is guilty of “fanning the delusion that anyone, anywhere, can become a fully fledged capitalist,” whereas in fact focusing on securing property rights tends to “persuade policy makers that they need do little more than offer title deeds and then leave the market to do everything else.”43 Others have argued that a Western-inspired vision of indi- vidual property rights is ill suited to economies that have long operated under a system of collective or community ownership of land. 39 Justice for the Poor, supra note 37. 40 Palacio, supra note 12, at 6. 41 Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Every- where Else (Random House 2000). 42 See, for example, Robert D. Cooter & Hans-Bernd Schäfer, Solomon’s Knot: How Law Can End the Poverty of Nations (Princeton U. Press 2012). 43 Alan Gilbert, On the Mystery of Capital and the Myths of Hernando de Soto: What Difference Does Legal Title Make? International Development Planning Review 15 (Liverpool U. Press 2002). Legal Empowerment of the Poor: Past, Present, Future 43 Development policy makers have learned through bitter experience that a uniform, one-size-fits-all approach to policy interventions in poor countries can have unfortunate, and sometimes disastrous, consequences. The same principle certainly applies to legal reform and to property law reform. If a legal reform is to take hold and be effective, it must be perceived as legitimate, not as an alien custom imposed by external forces. Property law reform will have a better chance of taking root if it strengthens rights that individuals already believe they possess or should possess. The reforms must support ex- isting aspirations, not completely reorder society. That is, reforms to systems of property law must incorporate local understandings of the relationship be- tween people and the land they inhabit. This is particularly important where a collective or spiritual attachment to land prevails: land is not always con- ceptualized as “property,” something that can be bought and sold.44 If policy makers bear these sensitivities in mind, much can be done to empower the poor in the area of property rights. Networks LEP is not solely, or perhaps even primarily, a “legal” strategy to reduce pov- erty. As Golub notes, “legal empowerment is about power more than about law.”45 An aim of LEP is to avoid the fixation on formal legal institutions (and lawyers) that some say is a mark of the traditional rule of law agenda and to focus on more community-based methods. Supporting strong and effective judicial institutions is an important part of strengthening the rule of law in a country, but without complementary efforts to empower poor people to use the law, this cannot be considered a LEP strategy. LEP activities can be catego- rized in a number of different ways. Golub’s list is a good example: investing in civil society, engaging NGOs at a country-specific level, integrating with socioeconomic development projects, taking a long-term approach, support- ing impact-oriented research, incentivizing government personnel to support legal empowerment, and making LEP a policy priority for donor countries as well as for developing countries.46 The emergence of organizations that are dedicated to these community- based activities is an indication of the status of LEP within the broader de- velopment agenda. Consider Namati, with which, as noted above, the World Bank is working on a project in Sierra Leone. Namati describes itself as an organization that is focused on “innovations in legal empowerment” and that supports grassroots programs that move away from the familiar model that involves many lawyers.47 Typically, according to Namati, a legal empower- ment program will contain a small group of lawyers and a larger front-line 44 For an interesting discussion of this issue, see Edward Robbins, Formalisation of Land and Housing Tenure to Empower the Poor: Simple Nostrum or Complex Challenge? in Rights and Legal Empowerment in Eradicating Poverty 175 (Dan Banik ed., Ashgate 2008). 45 Golub, supra note 18, at 108. 46 Golub, supra note 18, at 113–16. 47 See http://www.namati.org. http://www.namati.org The World Bank Legal Review44 group of community paralegals. Paralegals work closely with communities, deploy a flexible range of tools, and connect to lawyers for high-level advo- cacy if their front-line efforts prove to be insufficient or inappropriate. In ad- dition to these community-level programs, Namati believes that LEP requires reforms to state institutions to encourage the participation and ownership of individuals and communities. Examples of such institutional reforms include simplifying land registration procedures, strengthening grievance mecha- nisms to respond to failures in public service delivery, and improving access to government information. As more organizations and development agencies adopt LEP approaches, evidence of a global LEP discourse is emerging. The Global Legal Empower- ment Network is an interesting example. The network, the result of a collabo- ration between the World Bank and the Open Society Justice Initiative and hosted by Namati, provides a forum for those involved in LEP, including de- velopment agencies, community paralegals, concerned citizens, NGOs, pub- lic interest lawyers, journalists, and government officials, to share knowledge and experience. The network aims to connect practitioners to each other and to build a strong foundation and momentum for LEP. As of this writing, the net- work consists of an online database for exchanging practical resources, such as a paralegal training manual. Practitioners are invited to form subgroups based on geographical regions or themes and to participate in face-to-face regional meetings. The future of the LEP movement lies in networks that connect develop- ment practitioners with the poor, development practitioners with develop- ment practitioners, and the poor with the poor. If poor people are to realize the benefits of empowerment, such connections must be made. Solidarity and the strengthening of community ties are essential if the power of the poor is to be expressed; that is, if it is to be any kind of power worth having. Conclusion LEP is a new movement in a much older tradition, and it shares with that tra- dition a commitment to bring the law to bear on development challenges. By focusing on those who are directly affected by a lack of economic opportunity and by prioritizing their needs, LEP has the potential to make the development agenda work better for the poor. That is, after all, the purpose of development efforts. Prominently inscribed in the foyer of the World Bank headquarters in Washington, DC, are the words “Our dream is a world free of poverty.” LEP can contribute to turning that dream into a reality, but substantial challenges exist. The priorities for LEP should be to launch pilot projects based on solid LEP principles, to examine the results of those projects for insights, and, above all, to collect more data: data about what the poor want, what the poor think the law can do for them, and how the poor want to empower themselves. As the data grow and the principles and basic strategies of LEP are refined, LEP will assume an important place in the antipoverty agenda. 45 Beyond the Orthodoxy of Rule of Law and Justice Sector Reform A Framework for Legal Empowerment and Innovation through the Convention on the Rights of Persons with Disabilities Janet e. Lord, deepti Samant raJa, and peter BLanck The Convention on the Rights of Persons with Disabilities (CRPD),1 the first legally binding international human rights treaty to address the rights and fundamental freedoms of one billion persons, provides a framework for legal empowerment and innovation that challenges traditional conceptualizations of justice-oriented development intervention. The CRPD implicitly renounces the orthodox view that top-down justice sector and rule of law initiatives should be the primary target of law and development efforts. Although the CRPD does not discount—in fact, it explicitly requires—the reform of legal systems, justice sectors, and institutions in meeting its obligations, it goes well beyond the traditional focus on development donors to embrace an empower- ment model that implicates nonformal and decentralized justice and admin- istrative systems and processes, local communities in development, and the duties of private as well as public actors in fostering inclusion. The legal em- powerment framework set forth in the CRPD has significant implications not only for bridging rights and development in the context of disability but also more broadly for other marginalized groups living in poverty. The UN General Assembly adopted the CRPD, along with its Optional Protocol,2 by general consensus and the instruments were opened for signature by states parties on March 30, 2007.3 It attained the requisite 20 This research was funded in part by grants to Blanck from the U.S. Department of Educa- tion, the National Institute on Disability and Rehabilitation Research (NIDRR), and Syracuse University; for details see http://bbi.syr.edu. This chapter is adapted from presentations made at the session “Persons with Disabilities: Innovation and Empowerment through the Convention on the Rights of Persons with Disabilities,” World Bank Law, Justice and Devel- opment Week, Washington, D.C., 2011. The authors wish to thank participants in the panel session for their inputs. The authors wish to acknowledge and thank Jesse Feitel, Max Smith, and Josh Tumen for assisting with background research for this chapter. 1 Convention on the Rights of Persons with Disabilities, GA Res. 61/106, UN Doc. A/ RES/61/106 (Dec. 13, 2006) (hereinafter, CRPD). 2 Optional Protocol to the Convention on the Rights of Persons with Disabilities, GA Res. 61/106, Annex II, UN Doc. A/RES/61/106 ( Jan. 24, 2007) (hereinafter, Optional Protocol). 3 Updated information on signatures and ratifications is available at http://www.un.org /esa/socdev/enable/rights/humanrights.htm (accessed Jul. 25, 2012). http://bbi.syr.edu http://www.un.org/esa/socdev/enable/rights/humanrights.htm http://www.un.org/esa/socdev/enable/rights/humanrights.htm The World Bank Legal Review46 ratifications in short order, triggering its entry into force on May 3, 2008.4 The impetus for drafting the treaty was the exclusion of an estimated 1 billion persons with disabilities from their communities, where they are routinely de- nied access to education, employment, health care services, and basic needs.5 More often than not, persons with disabilities live in poverty and experience lower levels of education and income compared to the general population.6 Research indicates that in all countries, disability prevalence rates are signifi- cantly higher among groups with lower economic status, underscoring the reinforcing relationship between poverty and disability.7 Prior to the adoption of the CRPD, no international instrument compre- hensively addressed the multitude of barriers experienced by persons with disabilities, and only a handful of states had well-developed disability rights law and policy frameworks.8 Where states did have disability-related leg- islation, often such laws explicitly introduced disability discrimination, for example, denying persons with disabilities the right to vote, to obtain an education, to serve as a juror, to open a bank account, to own property, or to work in certain sectors. In other instances, provisions relating to disability evoked welfare-oriented as opposed to comprehensive human rights protec- tion. Although the human rights of persons with disabilities were implicitly addressed within the framework of general human rights law, and were to some extent reflected in several disability-specific nonbinding initiatives, this framework was insufficient to advance disability human rights and provide an impetus for change at the state level.9 4 For more on the rights of persons with disabilities generally, see Human Rights and Persons with Disabilities, www.un.org/esa/socdev/enable/rights/humanrights.htm (ac- cessed Jul. 24, 2012). For a comprehensive overview of the CRPD, see Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, 8(1) Human Rights L. Rev. 1–34 (2008); M. A. Stein & J. E. Lord, Future Pros- pects for the United Nations Convention on the Rights of Persons with Disabilities, in The UN Convention on the Rights of Person with Disabilities: European and Scandinavian Perspectives (O. M. Arnardóttir & G. Quinn ed., Martinus Nijhoff 2008). 5 See World Health Organization and World Bank, World Report on Disability 29 (2011), available at http://www.who.int/disabilities/world_report/2011/report/en/ (accessed Jul. 25, 2012). 6 Id., at 39. 7 Daniel Mont, Measuring Disability Prevalence, SP Discussion Paper No. 0706 (Disability & Development Team, HDNSP, World Bank, Mar. 2007), available at http://siteresources .worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf. See also Sophie Mitra, Aleksandra Posarac, Brandon Vick, Disability and Poverty in Developing Countries: A Multidi- mensional Study World Development (Jul. 27, 2012). 8 See Gerard Quinn, Resisting the “Temptation of Elegance”: Can the Convention on the Rights of Persons with Disabilities Socialise States in Rights Behaviour? in The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives 215, 224–29 (1st ed., O. M. Arnardóttir & G. Quinn ed., Martinus Nijhoff 2009). 9 For a review of the need for further development of domestic disability law frameworks, see Theresia Degener & Gerard Quinn, A Survey of International, Comparative and Regional Disability Law Reform, Disability Rights Law and Policy: International and National Perspectives 3, 25-45 (Mary Lou Breslin & Sylvia Yee ed., Disability Rights Education and Defense Fund 2002), available at http://www.dredf.org/international/degener_quinn.html (accessed Jul. 24, 2012). www.un.org/esa/socdev/enable/rights/humanrights.htm http://www.who.int/disabilities/world_report/2011/report/en/ http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf http://www.dredf.org/international/degener_quinn.html Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 47 The CRPD fills this gap insofar as it provides a road map for the develop- ment and reform of domestic disability law and policy in alignment with in- ternational human rights principles, but also in its creation of mechanisms and duties to foster the empowerment of disability advocates and their representa- tive organizations. In obligating states parties to pursue specific national-level implementation measures to give full effect to its provisions, the CRPD ad- vances the kind of broad-based approach to human rights advocacy contem- plated in the legal empowerment literature.10 Moreover, recognition of the link between poverty and disability in the CRPD provides added support for legal empowerment approaches in the context of disability.11 In sum, the CRPD calls for innovation to advance domestic disability advocacy to support the human rights and fundamental freedoms of the globe’s “largest minority.”12 CRPD: Structure and Overall Content The CRPD comprises 25 preambular paragraphs and 50 operative articles that set out the historical progression of international disability rights and high- light issues of particular import.13 It has an introductory set of provisions out- lining its purpose (Article 1), key definitions (Article 2), and several general (cross-cutting) articles that are to be interpreted and applied across all articles of the treaty text (Articles 3–9).14 The CRPD is the first international human rights treaty to prohibit discrimination on the basis of disability and, signifi- cantly, to require the provision of reasonable accommodation in order to meet its nondiscrimination and equality requirement. It has a novel provision (Ar- ticle 9, Accessibility) detailing state obligations in the area of accessibility that is broadly defined and is driving innovation in numerous spheres and affects not only states but private actors as well. The CRPD enumerates specific sub- stantive civil, political, economic, social, and cultural rights (Articles 10–30). It establishes a system of monitoring and implementation (Articles 31–40), and it includes provisions that govern the operation of the CRPD (Articles 41–50). The general requirements set forth in Article 4 make clear the need to ground CRPD obligations in national law, policy, and programming in con- sultation with persons with disabilities. Thus, Article 4 requires states parties to consult with and involve persons with disabilities in developing and im- plementing legislation and policies and in decision-making processes, includ- ing development planning. In this sense, the CRPD underscores the need to engage with stakeholders and their representative organizations, reflecting a 10 See Stephen Golub & Kim McQuay, Legal Empowerment: Advancing Good Governance and Pov- erty Reduction, in Law and Policy Reform at the Asian Development Bank (ADB 2001); Anna Pala- cio, Legal Empowerment of the Poor: An Action Agenda for the World Bank (ARD 2006). 11 World Report on Disability, supra note 5, at 39. 12 Id., at 29. 13 CRPD, supra note 1. 14 The CRPD articles are available at http://www.un.org/disabilities/default.asp?id=259 (ac- cessed Jul. 25, 2012). http://www.un.org/disabilities/default.asp?id=259 The World Bank Legal Review48 shift toward legal empowerment approaches, as opposed to only stand-alone, top-down rule of law interventions. Top-down initiatives are needed and are required by the CRPD—including training of lawyers and judiciaries—but these interventions rest within the context of a legal empowerment, access to justice approach. The CRPD lays out a framework for national-level monitoring that in- cludes cross-governmental coordination, independent monitoring (inferred to be performed by a national human rights institution, or NHRI), and stake- holder participation (Article 33). A Committee on the Rights of Persons with Disabilities—the CRPD’s treaty-monitoring body—is tasked with monitor- ing implementation by states parties through its oversight of the mandatory reporting requirement and the issuance of general recommendations for the state party concerned.15 The Optional Protocol to the CRPD,16 consisting of 18 articles, gives the committee competence to examine individual complaints with regard to alleged CRPD violations by parties to the protocol. It allows states parties to opt into participation in individual and group communica- tions procedures, as well as an inquiry procedure, all of which are overseen by the committee.17 These mechanisms are important vehicles for empowering local disabled people’s organizations (DPOs) to bring individual violations and systemic abuses to the attention of the committee for its review. An innovative mechanism that can facilitate disability advocacy is the es- tablishment of a periodic meeting of a Conference of States Parties (COSP), as set forth under Article 40 of the CRPD. Disability advocates and their rep- resentative organizations are using the COSP in ways that reflect creative ap- proaches to legal empowerment.18 The CRPD stands out among the core human rights conventions in affirm- ing the role and impact of international cooperation in promoting the imple- mentation of progressive disability reforms and in establishing a framework to foster international cooperation and inclusive development programming. Through Article 32, the CRPD is the first human rights convention to detail the kinds of measures states parties can take to facilitate the implementation of the convention.19 Article 32 promotes the need to ensure that international 15 For an overview of the development, mandate, and future potential of the CRPD committee, see M. A. Stein & J. E. Lord, Monitoring the Committee on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential, 31 Hum. Rights Q. 689 (2010). 16 Convention on the Rights of Persons with Disabilities, Optional Protocol, United Nations, available at http://www.un.org/disabilities/default.asp?id=311 (accessed Jul. 25, 2012). 17 The committee undertook consideration of an individual communication in which it found a violation of CRPD rights. See Committee on the Rights of Persons with Disabilities, HM v. Sweden, Communication No. 3/2011, Views adopted by the committee at its seventh session (Apr. 16–27, 2012), available at http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Juris prudence.aspx. 18 See UN Enable, Conference of States Parties, available at http://www.un.org/disabilities /default.asp?id=1535 (accessed Jul. 25, 2012). 19 Katherine Guernsey, Marco Nicoli, & Alberto Ninio, Convention on the Rights of Persons with http://www.un.org/disabilities/default.asp?id=311 http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Jurisprudence.aspx http://www.un.org/disabilities/default.asp?id=1535 http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Jurisprudence.aspx http://www.un.org/disabilities/default.asp?id=1535 Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 49 cooperation initiatives, including development programs, are accessible and inclusive of people with disabilities.20 Thus, it gives credence to the impor- tance of mainstreaming disability in development to achieve not only the goals and objectives of this convention but also goals for poverty reduction and empowerment within the development community as a whole.21 States are encouraged to support capacity building and the exchange of knowledge and best practices, strengthen research collaborations and access to scientific knowledge, and offer technical and economic assistance to help meet a state’s obligations under the convention.22 This provision may extend CRPD stan- dards, via development programming, to effect change in discrete contexts such as electoral law reform and practice, community-based rehabilitation, and DPO capacity building. The convention sets forth general obligations familiar to human rights treaties—prompting national law reform and domestic incorporation of its provisions. It provides a framework for national-level disability rights advo- cacy and action. Significantly, the convention draws together a diverse set of obligations that, when surveyed, constitute a map of advocacy and empower- ment opportunities at the local, national, and international level. In so doing, the CRPD plots a course for a human rights practice that goes beyond tradi- tional justice sector and rule of law interventions and includes legal empow- erment and innovation that is locally driven, community focused, and civil society oriented.23 The CRPD as a Framework for Empowerment and Innovation: Beyond Rule of Law and Justice Sector Orthodoxy The CRPD evokes a model of disability rights realization reflective of the lit- erature on legal empowerment. This is specifically reflected in the following articles: • Articles 4 and 8 specify that raising disability rights awareness is a gen- eral obligation requiring strategies aimed at dismantling barriers posed by stigma and discrimination, making the justice system more accessible. • Article 4 proposes that law is a tool for strengthening legal rights through disability legal reform and legal framework development in terms of both substance and process. Disabilities: Its Implementation and Relevance for the World Bank, SP Discussion Paper No. 0712 (World Bank 2007). 20 CRPD, supra note 1. 21 UN Enable, The Millennium Development Goals (MDGs) and Disability, available at http:// www.un.org/disabilities/default.asp?id=1470 (accessed Jul. 25, 2012). 22 CRPD, supra note 1. 23 For a discussion of the limitations of orthodox justice sector and rule of law interventions, see Golub & McQuay, supra note 10. http://www.un.org/disabilities/default.asp?id=1470 http://www.un.org/disabilities/default.asp?id=1470 The World Bank Legal Review50 • Articles 13, 28, and 32 facilitate disability rights implementation through strategies of inclusion, including in justice sector institutional capacity building. • Articles 16, 33, and 34–40 provide strategies for strengthening the moni- toring and enforcement of disability rights. Although countries have enthusiastically supported, ratified, and signed the CRPD,24 many face challenges in implementing the convention due to disempowering social contexts for persons with disabilities and underdevel- oped legal systems. This reality raises a variety of issues, among them the differentiation between developed and developing countries in capacities for implementation and the varied perspectives on the nature and definition of disability. The CRPD does not provide a concrete definition of disability but states that “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”25 This conceptualization demands a shift in how policy- makers think about disability. For example, disability laws in some countries define disability with a finite list of observable impairments, ignoring hidden disabilities that arise from chronic or mental illness, learning and cognitive difficulty, and accident, and disregarding environmental and interactional is- sues completely.26 Prior to the adoption of the CRPD, many disability laws and policies op- erated mainly from the perspective of medical and welfare perspectives on disability, in which a person with a disability is presumed to be incapable of equal participation in society.27 This conception leads to a dependence on wel- fare policies and charity programs to address the “needs” of persons with dis- abilities and their families.28 Many of the concepts set forth in the CRPD may seem foreign to policymakers and at times may be at odds with the legislative approaches used in some countries. Thus, states parties need to bring about significant law and policy reform and development to align with the shift re- quired by the CRPD29—presenting challenges, but also creating opportunities for significant innovation. 24 For an updated list of ratifications and signatories, see http://www.un.org/disabilities /countries.asp?id=166 (accessed Jul. 25, 2012). 25 CRDP, Article 1, supra note 1. 26 See, for example, the case of India in Andrew Byrnes, Disability Discrimination Law and the Asian and Pacific Region (Paper 3), in Resources on Harmonization of National Legislation with the Convention on the Rights of Persons with Disabilities in Asia and the Pacific, available at http:// www.unescap.org/sdd/issues/disability/crpd/files/Paper-III-Andrew-20110121.pdf. 27 Kayess & French, supra note 4. 28 Id. 29 Arlene Kanter, The Promise and Challenge of the United Nations Convention on the Rights of Per- sons with Disabilities, 34 Syracuse J. Intl. L. & Com. 287 (2007). http://www.un.org/disabilities/countries.asp?id=166 http://www.unescap.org/sdd/issues/disability/crpd/files/Paper-III-Andrew-20110121.pdf http://www.un.org/disabilities/countries.asp?id=166 http://www.unescap.org/sdd/issues/disability/crpd/files/Paper-III-Andrew-20110121.pdf Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 51 The provisions and motivations under Article 32, which covers interna- tional cooperation, offer the potential to assist states parties struggling with challenges in crafting required innovations and facilitating access to resources to aid in implementation. Promoting the exchange of technical knowledge and best practices while providing resources for capacity building will aid government workers and practitioners at all levels to usher in improvements and reforms to policies, programs, and practices. Addressing disability in international aid and development funding and support will help low- and middle-income states parties to provide far-reaching and inclusive programs that meet their goals and obligations under the CRPD. The following sections discuss the general schema of legal empowerment and innovation set forth in the CRPD and provide illustrations of how CRPD obligations are pursued in different ways to effect change. These include rais- ing awareness of disability rights; strengthening disability rights; facilitating disability rights; and improving monitoring and enforcement of disability rights. Raising Awareness of Disability Rights The various barriers faced by persons with disabilities in developing countries combine to restrict their access to information and awareness of their rights, a situation also faced by persons living in poverty and other disadvantaged groups. As emphasized in the World Report on Disability, persons with disabili- ties are likely to live in poverty and are very often restricted in their access to education, employment, transportation, and health care and often live in iso- lation from the wider community.30 The social determinants of legal empower- ment, therefore, are severely restricted for persons with disabilities. The need for awareness-building initiatives, including legal literacy programs, partici- patory human rights education tied to action at the local level, legal aid bu- reaus, and inclusive development programming aiming to integrate persons with disabilities into mainstream programming (such as health, economic de- velopment, democracy and governance, and education), are important and implicit in the CRPD framework. The CRPD recognizes in Article 8 (awareness raising) that a precondition to legal empowerment is combating the stigma that seeds discrimination. In so doing, the CRPD signals the central role that legal empowerment plays in ad- dressing the situation of persons with disabilities (and indeed any historically marginalized group). Consistent with legal empowerment models, awareness raising is a fundamental precondition of disability rights realization and com- prises both understanding of legal rights and an appreciation of how to claim those rights through action.31 CRPD provisions that require public consulta- tion as well as accessibility measures in the contexts of law and policy making, 30 World Report on Disability, supra note 5, at 39. 31 Golub & McQuay, supra note 10, at 7. The World Bank Legal Review52 training health professionals in disability rights awareness, and the general obligation to promote the training of professionals and staff working with per- sons with disabilities in the CRPD rights framework are important facilitators of rights awareness and are central to legal empowerment.32 There are numerous examples of innovative disability rights awareness- raising initiatives, many of which are integrated into development program- ming, as opposed to implementation limited to one-off training events. In Li- beria, during the historic 2004 elections in which the first woman African head of state was elected, DPOs used the electoral process to raise the voice and visibility of Liberians with disabilities. At the time, Liberian DPOs were aware of the CRPD drafting process and requested, as part of their election work, information about international standards on disability to help them draft a national disability law. Facilitated through the international election adminis- tration organization, the International Foundation for Electoral Systems and BlueLaw International LLP, the project’s goal was to foster DPO cooperation through the creation of a coalition that affected all phases of the electoral pro- cess—voter education and registration, polling, electoral observation and monitoring, and postelection assessment.33 The methodology was to position members of the Liberian disability community as leaders and experts and to conduct participatory human rights education in raising awareness and understanding about election access on the part of election commissioners.34 A poignant illustration of successful ad- vocacy occurred during a training of 50 election officials from the Liberian National Election Commission. During the workshop, disability advocates, including persons with various types of disabilities, simulated vote casting at a polling station to illustrate the numerous barriers that they had experi- enced in previous elections.35 This method used humor that was effective, and it imparted serious messages of discrimination and exclusion based on stereo- typing and generalized lack of knowledge. Drawing on their individual ex- periences, members of the group demonstrated the barriers that can stand in the way of access and participation for a voter with disabilities, ranging from physical and communication barriers experienced by persons with physical and sensory disabilities to barriers rooted in ignorance and stigma. 32 CRPD, supra note 1, at Article 4. 33 Janet E. Lord & Michael A. Stein, Participation in International Agreements as Transformative Social Change: The UN Convention on the Rights of Persons with Disabilities, in Making Rights Real ( Jody Heymann ed., Cambridge U. Press 2012). 34 Id. 35 For more on using participatory human rights education to forward disability rights, see Janet E. Lord and Nancy Flowers, Human Rights Education and Grassroots Peace Building, in Human Rights and Conflict: New Actors, Strategies and Ethical Dilemmas ( Julie A. Mertus & Jeff Helsing ed., United States Institute of Peace 2006). Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 53 Strengthening Disability Rights To strengthen disability law frameworks so they are more in line with inter- national standards on disability rights, the substance as well as the process of the law must be reformed. Substantive and procedural reforms can cre- ate accessible and consumer-oriented dispute-settlement procedures. These range from legal claims brought before courts and human rights tribunals to electoral complaints mechanisms to complaints procedures of national human rights institutions. Procedural reforms are a core part of enhancing access to justice for marginalized groups, including enhancing the accessibility of no- tice requirements, the right to be heard, access to information rights, and the provision of reasonable accommodations. Legislative Reform to Modify Legal Frameworks and Stimulate Legal Empowerment Although legislation and policies by themselves do not assure full implemen- tation of the CRPD, they are a necessary pillar of the effort to facilitate change. Similar to states parties to other core human rights conventions, states parties to the CRPD are required to adopt specific legislation that prohibits discrimi- nation in all spheres.36 Such laws should aim at eliminating barriers to access that constitute both formal and substantive discrimination, attribute obliga- tions to public and private actors, and introduce measures to bring about equitable access to all rights. Although the CRPD is relatively new, it has already promoted significant law and policy shifts. This work is being under- taken at various levels, including in constitutional development and reform, national-level law reform and development, and targeted law reforms in dis- crete contexts. For some countries, antidiscrimination legislation will require a change in the overall approach toward tackling inequities. For example, Japan does not have comprehensive antidiscrimination laws and policies, and the concept of nondiscrimination in regard to disability is not considered a part of the broader civil and human rights initiative.37 With its ratification of the CRPD, Japan is developing disability discrimination law and policy for the first time.38 States parties should consider using incentives to encourage public and pri- vate actors to change their attitudes and behavior in relation to individuals and groups facing systemic discrimination, or penalize them in case of noncom- pliance. The identification and elimination of barriers will frequently require devoting greater resources to issues of access. Particular attention must be given to ensuring that laws and policies are implemented in practice. In Nepal, DPOs worked to ensure that the voices of persons with disabili- ties were heard during the drafting of a new constitution. The Kathmandu 36 CRPD, supra note 1, at Article 4. 37 J. Nakagawa & P. Blanck, Future of Disability Law in Japan: Employment and Accommodation, 33(1) Loy. L.A. Intl. & Comp. L. Rev. 173 (2010). 38 Id. The World Bank Legal Review54 Center for Independent Living in Nepal held workshops that were strategi- cally designed by the organizers to build linkages among DPOs, civil society organizations, and international actors—such as the United Nations—in the constitution-drafting process. Although few DPOs in the country had pre- viously focused on law and policy advocacy, one objective of the constitu- tion-drafting participation was to help build the capacity of DPOs to engage actively in law and policy reform and development and to engage with in- ternational civil society partners to increase understanding of international standards on disability.39 In other countries, notably South Africa, Uganda, Zambia, and Thailand,40 DPOs have likewise used constitution-building processes to leverage disabil- ity rights. Ecuador issued a presidential executive decree in 2007 to promote the development of disability programs across all sectors and introduced a chapter on disability in its 2008 constitution.41 Article 54 of Kenya’s 2010 con- stitution “seeks to minimize barriers to equalization of opportunities in all as- pects of social-cultural, economic and political life” for persons with disabili- ties.42 In Egypt, efforts are under way to adopt a national disability law, situate disability within the new constitutional framework, and revise the election law in conformity with the CRPD. Enhancing political participation is critical in postconflict and transitioning countries. Legal Empowerment to Support the Reform of Policies, Plans, and Strategies Since the adoption of the CRPD, countries have started developing disability action plans where none existed previously, as well as incorporating disabil- ity into their broader national action plans. Thailand developed the National Plan for Persons with Disabilities’ Quality of Life Development Plan 2007–11 to issue guidelines for an integrated approach to disability and development programs in the country.43 States parties should ensure that strategies, policies, and plans of action are in place and implemented in order to address barri- ers to access. Economic policies, such as budgetary allocations and measures to stimulate economic growth, should take into account the need to guaran- tee the effective enjoyment of all CRPD rights. Public and private institutions should be required to develop plans of action to address nondiscrimination, 39 Lord & Stein, supra note 33. 40 The Thai constitution of 2007 includes “anti-discrimination provisions and guarantees acces- sibility to social welfare and services for persons with disabilities.” For legislative develop- ments as reported to the CRPD committee, see United Nations, Compilation of Legislative Mea- sures Undertaken in the Implementation of the Convention on the Rights of Persons with Disabilities: 2011 Update (CRPD/CSP/2011/CRP.5), available at http://www.un.org/disabilities/docu ments/COP/crpd_csp_2011_crp.5.doc (accessed May 24, 2012). 41 Id. 42 Id. 43 Id. For a more extensive discussion of law and policy within the context of HIV and disabil- ity, see Janet E. Lord, HIV/AIDS, Disability and Discrimination: A Thematic Guide on Inclusive Law, Policy and Programming (One Billion Strong, Washington, D.C. 2012). http://www.un.org/disabilities/documents/COP/crpd_csp_2011_crp.5.doc http://www.un.org/disabilities/documents/COP/crpd_csp_2011_crp.5.doc Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 55 and states should conduct human rights education and training programs for public officials and make such training available to judges and candidates for judicial appointments. Projects aimed at building human rights knowledge and advocacy tech- niques are often pursued in a vacuum, effectively disconnected from follow- up action plans. For instance, some efforts to train local DPOs regarding the CRPD have been provided without enabling those groups to exercise their newly acquired capabilities. Consequently, although DPOs have gained knowledge, they remain unsure how to appropriately utilize it. The Harvard Law School Project on Disability, in cooperation with BlueLaw International and American Institutes for Research, worked with a coalition of DPOs in Zambia. The objectives were to learn more about the CRPD with a specific aim to make public health services, including HIV/AIDS education, be disability inclusive.44 One of the strategies was the placement of a disability advocate on the team implementing a large-scale HIV program involving a large interna- tional organization and a number of local organizations. The provision of dis- ability expertise in the form of a dedicated staff member and the provision of training to a network of disability advocates engaged in both disability policy and HIV education at the community level increased the capacity of DPOs and enabled them to achieve better access to health care, the CRPD goal they identified as a priority. Facilitating Disability Rights Measures in the CRPD aim to ensure the facilitation of the rights set forth in the treaty. The CRPD is a framework in which disability rights may be ex- ercised through a variety of measures that identify and then dismantle the barriers that stand in the way of the legal empowerment of persons with dis- abilities. Such facilitation efforts include the accessibility measures identified in Article 9, the measures of reasonable accommodation and positive mea- sures in Article 5, institutional and individual capacity building, and means to facilitate access to the mechanisms of justice. Accessibility in Virtual Spaces The CRPD has helped to bridge another major frontier in disability em- powerment and inclusion in the mainstream—ensuring that accessibility is not limited to the physical realm alone but extends to virtual spaces as well. Information and communication technologies (ICTs) are a major driver in social and professional interchange in today’s world and permeate almost all transactions and interactions in society. Today, ICT-enabled services and resources are central features of many socioeconomic development initia- tives, including promoting access to banking, health care, education, income 44 For a brief discussion of this project, see http://www.bluelawinternational.com (accessed Jul. 24, 2012). http://www.bluelawinternational.com The World Bank Legal Review56 generation, disaster response and management, and social networking and civic participation.45 This raises the stakes in ensuring that ICTs are accessible to people with disabilities for two reasons: one, ICT-enabled development can significantly help to level the playing field for people with disabilities;46 and two, the lack of accessibility will add to their exclusion from major develop- ment programs, leading to further marginalization.47 The CRPD addresses accessible ICTs and assistive technologies (AT) throughout, most specifically in Articles 9, 21, and 26, emphasizing the criti- cal role these technologies play in realizing all rights, such as access to justice, freedom of expression, and rights to political participation, education, health rehabilitation, and employment.48 However, Web accessibility and the avail- ability of accessible ICTs remain low despite the wide ratification of the CRPD. The Global Initiative for Inclusive ICTs (G3ict) issued the CRPD Progress Re- port on ICT Accessibility 2010 based on a survey of 33 countries. This report found that • Only 58 percent of the countries studied included ICT in accessibility defi- nitions in laws or regulations. • Only 36 percent had laws, policies, or programs to define public procure- ment rules for accessible ICTs. • Sixty one percent enabled persons with disabilities to input information in accessible and usable formats to access services offered online. • Sixty seven percent had laws, policies, or programs that ensure that gov- ernment communications using ICTs are provided in accessible and alter- native formats (for example, sign language or Braille). The pervasiveness of ICTs in most socioeconomic domains requires states parties to develop laws and policies to support a comprehensive, coordi- nated, and successful approach to promoting ICT accessibility for all. Peter Blanck and colleagues at the Burton Blatt Institute at Syracuse University have worked closely with the European Union (EU) to assess the adequacy of laws and policies to ensure broad ICT accessibility. The lessons learned through this work resonate across countries. 45 Deepti Samant, Rebecca Matter, & Mark Harniss, Realizing the Potential of Accessible ICTs in Developing Countries, in Disability & Rehabilitation: Assistive Technology (Informa Healthcare 2012, doi:10.3109/17483107.2012.669022, available at http://informahealthcare.com/doi /pdfplus/10.3109/17483107.2012.669022) also forthcoming in print. 46 Id. 47 Peter Blanck, Towards a Right under the ADA to Web Access for People with Cognitive Dis- abilities (Coleman Institute for Cognitive Disabilities 2012), available at http://www.cole maninstitute.org/images/documents/research_development/2012CTowardsARightUnder TheADA.pdf; M. V. Vicente & A. J. Lopez, A Multidimensional Analysis of the Disability Digital Divide: Some Evidence for Internet Use, 26(1) The Information Society 48 –64 (2010). 48 CRPD (2006), available at http://www.un.org/disabilities/default.asp?navid=13&pid=150 (accessed Jul. 24, 2012). http://informahealthcare.com/doi/pdfplus/10.3109/17483107.2012.669022 http://www.colemaninstitute.org/images/documents/research_development/2012CTowardsARightUnderTheADA.pdf http://www.un.org/disabilities/default.asp?navid=13&pid=150 http://www.colemaninstitute.org/images/documents/research_development/2012CTowardsARightUnderTheADA.pdf http://www.colemaninstitute.org/images/documents/research_development/2012CTowardsARightUnderTheADA.pdf http://informahealthcare.com/doi/pdfplus/10.3109/17483107.2012.669022 Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 57 Laws, policies, and regulations must address accessibility in the entire accessibility supply chain, including “content production, content transmis- sion, and content rendering.”49 Thus, policies must cover the producers and developers as well as the deployers of technology (that is, service providers such as banks).50 Different countries have different approaches for such an undertaking. For example, in the United States different pieces of legislation covering different products, agencies, and sectors that utilize ICT-based ser- vices—a piecemeal approach—coexist with broad-sweeping legislation such as the Americans with Disabilities Act.51 Depending on the political climate and national interest, both approaches may need to be used. Additionally, states parties should promote collaboration and agreement among the differ- ent stakeholders such as consumers, service providers, manufacturers, and law enforcement to create broad support for institutional drive due to the dif- fering interests of and impacts on each stakeholder group.52 Issues such as ICT accessibility encompass the need for top-down (impose direct obligations on the supply side) as well as bottom-up (rights for users/consumers) types of legislation.53 Some states will need to support public and private mechanisms for harmonization toward uniformity of law. Another issue that is increasingly a challenge for law and policymakers is that of convergence—the “erosion of boundaries” between different types of previously separate ICT products and services such as the transmission of television content delivered over the Internet.54 The expansion of such services may fall in the gray areas not clearly covered by accessibility legislation or regulation. As discussed by Cullen et al.: Telephony over the Internet often falls outside the scope of legisla- tion dealing with accessibility of voice telephony and there is a lack of clarity as to whether interactive TV is a broadcast or a telecommu- nications service, or neither of these but a new class of service from an e-Accessibility regulatory point of view.55 Finally, it is important to address the issue of the existence and trans- ferability of standards and regulations for ICT products and services across 49 Kevin Cullen et al., Accessibility of ICT Products and Services to Disabled and Older People: To- wards a Framework for Further Development of EU Legislation or Other Co-ordination Measures on eAccessibility (European Commission 2008). 50 Id. 51 William N. Myhill, Law & Policy Challenges for Achieving an Accessible eSociety: Lessons from the United States, in European Yearbook on Disability Law vol. 2 (L. Waddington & G. Quinn ed., Intersentia 2010). 52 Samant, Matter, & Harniss supra note 45. 53 Cullen et al., supra note 49. 54 Rajendra Singh & Siddhartha Raja, Convergence in Information and Communication Technol- ogy: Strategic and Regulatory Considerations (World Bank 2010), available at http://publi cations.worldbank.org/index.php?main_page=product_info&cPath=0&products_id=23785 (accessed Jul. 25, 2012). 55 Cullen et al., supra note 49, at 65. http://publications.worldbank.org/index.php?main_page=product_info&cPath=0&products_id=23785 http://publications.worldbank.org/index.php?main_page=product_info&cPath=0&products_id=23785 The World Bank Legal Review58 national boundaries. The lack of accessibility standards and policies across regions can create significant challenges for individuals with disabilities in an increasingly global society and impede progress toward the fulfillment of the CRPD. The challenge of CRPD implementation in the context of virtual spaces raises numerous issues pertaining to developing-country needs and underdeveloped capacity. Common but Differentiated Obligations between Developed and Developing States? The notion that international obligations may introduce flexibility and differ- ential treatment for rich and poor countries is a pragmatic response to real disparities in technical and economic capacities to comply fully with treaty standards. Bodansky’s typology of treaty design features that affect obliga- tory stringency in the international environmental realm is instructive in this regard; it includes flexible or contextual commitments; differential standards; and reservations.56 Although it may be anathema to suggest that human rights obligations are somehow contingent or differential on the basis of resources, there are indeed concepts that do, in essence, render obligations either less stringent in the sense of temporality (that is, progressive realization in rela- tion to economic, social, and cultural rights)57 or more flexible in the sense of providing states with a margin of appreciation for the operationalization of a requirement to suit country contexts or in allowing reservations, declarations, and understandings.58 Thus, it is possible to speak in terms of “common but differentiated re- sponsibilities” in the CRPD.59 However, legal, institutional, and economic un- derdevelopment is not an escape hatch for avoiding compliance. The CRPD goes further than any other human rights convention in establishing a frame- work for international cooperation that accommodates divergent levels of economic development and unequal capacities to address disability rights in a comprehensive manner.60 Article 32 represents one model for making interna- tional human rights law responsive to such challenges and to foster substan- tive disability rights equality among states.61 56 D. Bodansky, The Art and Craft of International Environmental Law (President and Fellows of Harvard College 2010). 57 CRPD, supra note 1, at Article 4(2). 58 Id., at Article 46. 59 C. Stone, Common but Differentiated Responsibilities in International Law, 98 Am. J. Intl. L. 276– 301 (2004). 60 Philippe Cullet, Differential Treatment in International Law: Towards a New Paradigm of Inter- state Relations, 10 European J. Intl. L. 549–82 (1999). For a helpful discussion of implementa- tion challenges in another context, see G. Shaffer, The Challenges of WTO Law: Strategies for Developing Country Adaptation, 5(2) World Trade Rev. 177–98 (2006). 61 CRPD, supra note 1, at Article 32. Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 59 Reasonable Accommodation as a Primary Means of Rights Facilitation One of the most important facilitators of the rights recognized in the CRPD is the concept of required reasonable accommodation. The failure to provide reasonable accommodation to an individual with a disability, whether to facil- itate access to education, work, health care, cultural activities, or other spheres of life, constitutes discrimination. Reasonable accommodation is being implemented at the domestic level in numerous ways. One example of using the tools of legal empowerment to equip persons with disabilities and employers to better understand how to operationalize reasonable accommodation is the Job Accommodation Net- work, an initiative of the Office of Disability Employment Policy in the US Department of Labor. The Job Accommodation Network is a model for the provision of free, expert, and confidential guidance on workplace accom- modations and disability employment issues.62 The service helps to identify practical solutions that benefit employers in meeting their reasonable accom- modations duties and employees in negotiating job accommodations. The ini- tiative focuses on workable solutions according to which legal requirements are satisfied within a framework that assists the employer and the employee in understanding legal requirements and measures that may be undertaken to meet them. This approach and similar initiatives are being operationalized as countries implement the obligations set forth in the CRPD. Other applica- tions of reasonable accommodation under development pertain to the obli- gations set forth in Article 12 to facilitate empowered decision making. Law reform initiatives in Ireland and South Africa, for example, are putting into place models that will reasonably accommodate individuals with disabilities in decision making about all aspects of life, including medical and rehabilita- tion issues, financial and property matters, and political participation.63 Improving Monitoring and Enforcement of Disability Rights National legislation, strategies, policies, and plans should provide for mecha- nisms and institutions that effectively address the individual and the struc- tural nature of the harm caused by disability discrimination and inequality of access to rights in all fields covered by the CRPD. Institutions dealing with allegations of disability discrimination customarily include courts and tribu- nals, administrative authorities, national human rights institutions, and om- budspersons. These institutions should be accessible to all persons with dis- abilities without discrimination and consistent with principles of accessibility. 62 See Job Accommodation Network, http://askjan.org/ (accessed Jul. 24, 2012). 63 For a discussion of the Irish initiative, see Amnesty International Ireland, Mental Health Act 2001: A Review, Summary Paper (undated). For a review of the South African effort to draft legislation on supported decision making, see South African Law Reform Commis- sion, Current Investigations, Progress Report, available at http://www.justice.gov.za/salrc /progress.htm. http://askjan.org/ http://www.justice.gov.za/salrc/progress.htm http://www.justice.gov.za/salrc/progress.htm The World Bank Legal Review60 Institutions should be empowered to provide effective remedies, such as com- pensation, reparation, restitution, rehabilitation, guarantees of nonrepetition, and public apologies, and states parties should ensure that these measures are effectively implemented. Improving Access to Dispute-Settlement Mechanisms The drafters of the CRPD understood the barriers that exist for persons with disabilities in seeking access to justice for the vindication of their rights. Some of these barriers parallel those that all marginalized groups experience and that contribute toward disempowerment, while others are more specific to disability. There is an overall lack of awareness or unintended insensitivity to disability-related concerns and needs among court personnel, including in- flexible court policies, practices, and procedures and inaccessible public infor- mation about courts and court services. Given recognition that access to justice programs for marginalized groups is essential and must be pursued in conjunction with top-down justice sector reform strategies, there are numerous possibilities for the use of existing plat- forms to enhance disability inclusion. In Afghanistan, Global Rights partnered with local women’s organizations and several universities to establish legal assistance bureaus in order to enhance women’s access to family courts and justice.64 Improving the accessibility of these courts to women, persons with disabilities, and other marginalized groups is essential to create well-trodden pathways for the enforcement of legal rights. DPOs are working to ensure that such community-based legal services are accessible to persons with dis- abilities. This is consistent with measures set forth in Article 13 of the CRPD. Eliminating Barriers through Litigation Legal empowerment approaches stress not only top-down training of judges and lawyers but also how to work within civil society to build capacity to en- gage in a range of activities that enhance and facilitate access to justice. Strate- gic litigation at the local level and through regional as well as international hu- man rights mechanisms is an effective tool for change provided it is designed and implemented by local organizations and not driven by ill-informed out- siders. Experience with existing domestic disability laws and existing regional systems discloses the possibilities for change. Antidiscrimination legislation with remedial measures is a tool that can help ensure equality and fair treatment in the face of continuing stigma and negative attitudes toward people with disabilities. In the United States, the Americans with Disabilities Act (ADA)65 has significantly affected the ability of persons with disabilities to combat stigma and discrimination in the work- 64 See Global Rights, Afghanistan, http://www.globalrights.org/site/PageServer?pagename =www_asia_afghanistan (accessed Jul. 25, 2012). 65 See, generally, P. Blanck et al., Disability Rights Law and Policy: Casebook (Thomson/West 2009). http://www.globalrights.org/site/PageServer?pagename=www_asia_afghanistan http://www.globalrights.org/site/PageServer?pagename=www_asia_afghanistan Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 61 place. Consider the case of Don Perkl, an individual with intellectual disability, who was fired from Chuck E. Cheese, a pizza restaurant, because of his disabil- ity.66 Despite support from his supervisor and his coworkers, he was fired by a regional manager who believed that Perkl was threatening to the restaurant patrons due to his disability and unfit for the job. A jury disagreed, awarding Perkl back pay, legal fees, and compensatory damages under the ADA, as well as US$13 million in punitive damages, to deliver a strong message.67 Without the ADA for recourse, Perkl would have faced severe difficulty in challenging the regional manager for blatant disability-based discrimination. Across the globe, lawyers are undertaking similar cases in areas of disabil- ity rights. This work, including development projects that aim to strengthen the ability of civil society and legal aid clinics to undertake legal empower- ment work, must target the elimination of systemic disability discrimination and segregation that inhibit equitable access to all rights for persons with disabilities. The Harvard Law School Project on Disability, for example, has served as amici in a number of cases before the European Court of Human Rights, as well as the European Committee of Social Rights.68 Innovations in Monitoring: Disability Rights Budget Analysis Standard rule of law approaches overemphasize legal interventions that not only are top-down and disconnected from the marginalized groups that legal frameworks are intended to serve but also privilege practices that emphasize court-focused action over other equally valid and in some instances more ef- fective forms of interventions for marginalized groups. Legal empowerment approaches increasingly point to the efficacy of budgetary analysis as an im- portant tool in bringing legal obligations to bear on government action.69 In this regard, the CRPD sets up a framework that brings such approaches with- in its aperture. The CRPD conceptualizes nondiscrimination and equality and encom- passes a cross-cutting obligation that may be realized only through its appli- cation to specific substantive human rights, whether civil, political, economic, social, or cultural. It asserts a substantive equality approach that goes beyond formal equality and advances socially, economically, and historically margin- alized groups.70 Moreover, the CRPD is an affront to the discredited notion 66 See P. Blanck, Americans with Disabilities and Their Civil Rights: Past, Present, and Future, 66 U. Pitt. L. Rev. 687–719 (2006), for a discussion of this and other ADA cases in which Blanck was involved as an expert witness and legal counsel. 67 Id. 68 See Alajos Kiss v. Hungary, App. No. 38832/06 (Eur. Ct. of Human Rights, May 20, 2010), para- graph 4. 69 See Gillian MacNaughton & Paul Hunt, A Human Rights–Based Approach to Social Impact As- sessment, in New Directions in Social Impact Assessment: Conceptual and Methodological Advances 355, 360 (Frank Vanclay & Ana Maria Esteves ed., Edward Elgar 2012) (Budget analysis “re- veals human rights problems and affords means to tackle them”). 70 Janet E. Lord & Rebecca Brown, The Role of Reasonable Accommodation in Securing Substantive The World Bank Legal Review62 that civil and political rights require little in the way of positive action and in- vestment of resources by states in order to effect implementation.71 The CRPD brings the human rights framework together in requiring reasonable accom- modation through positive measures in all areas of life.72 The implications of this model for legal empowerment underscore the so- phistication of the CRPD framework. In projecting the need for a multifaceted approach to implementation, the CRPD embraces the need for budget analy- sis to track the extent to which states parties undertake the measures required to realize all rights under the CRPD, even those subject to progressive realiza- tion. Disability rights budget analysis encompasses an approach according to which a state party’s allocation of resources in a given area (for example, education, employment, or community living) is scrutinized and assessed.73 Budget analysis can be used to identify the sufficiency of resource allocation in an attempt to secure the rights of a particularly disadvantaged group.74 In this regard, the Limberg Principles on the Implementation of Economic, Social, and Cultural Rights75 stress that statistical information and information on budgetary allocations and expenditures should be presented in such a way as to facilitate the assessment of compliance with economic, social, and cultural rights obligations.76 Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabili- ties, in Critical Perspectives on Human Rights and Disability Law 273 (Marcia Rioux, Lee Ann Basser, & Melinda Jones ed., Martinus Nijhoff 2011). 71 See Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart 2008). 72 See Lord & Brown, supra note 70. 73 See Gillian MacNaughton, Human Rights Frameworks, Strategies, and Tools for the Poverty Law- yer’s Toolbox, J. Hum. Rights Prac. 83, 95. See also Janet E. Lord & Michael Ashley Stein, The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities, 83 Wash. L. Rev. 449, 459 (2008) (asserting that budget analysis in the disability rights context is an “essential component” of disability rights advocacy work). 74 S. Farrior, Human Rights Advocacy on Gender Issues: Challenges and Opportunities, 1 J. Hum. Rights Prac. 83– 100 (2009). See I. Diokno and M. Socorro, A Rights-Based Approach towards Budget Analysis 8 (International Human Rights Internship Program 1999), available at http://www .crin.org/docs/resources/publications/hrbap/RBABudgetAnalysis.pdf (accessed Feb. 22, 2012); Helena Hofbauer et al., Dignity Counts: A Guide to Using Budget Analysis to Advance Human Rights (International Budget Partnership 2004), available at http://www.iie.org /en/Programs/IHRIP/~/media/Files/Programs/IHRIP/Dignity_Counts.ashx (accessed Feb. 22, 2012). Budget analysis can also serve an important role in the realm of women’s rights. See, for example, Debbie Budlender & Rhonda Sharp, How to Do a Gender-Sensitive Budget Analysis: Contemporary Research and Practice (Commonwealth Secretariat 1998), available at http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B1171EF87-2C5C -4624-9D76-B03CF35F4E65%7D_AusAIDTr.pdf (accessed Feb. 22, 2012). 75 United Nations, Economic & Social Council, Limburg Principles on the Implementation of Economic, Social, and Cultural Rights, paragraph 79, UN Doc. E/CN.4/1987/17 ( Jan. 8, 1987). 76 Id. http://www.crin.org/docs/resources/publications/hrbap/RBABudgetAnalysis.pdf http://www.crin.org/docs/resources/publications/hrbap/RBABudgetAnalysis.pdf http://www.iie.org/en/Programs/IHRIP/~/media/Files/Programs/IHRIP/Dignity_Counts.ashx http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B1171EF87-2C5C-4624-9D76-B03CF35F4E65%7D_AusAIDTr.pdf http://www.iie.org/en/Programs/IHRIP/~/media/Files/Programs/IHRIP/Dignity_Counts.ashx http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B1171EF87-2C5C-4624-9D76-B03CF35F4E65%7D_AusAIDTr.pdf Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 63 Inclusive Development Monitoring, Indicators, and Benchmarks States parties are obliged to monitor the implementation of measures to com- ply with CRPD obligations. Monitoring should assess both the steps taken and the results achieved in the elimination of barriers to effective access. National strategies, policies, and plans should use appropriate indicators and bench- marks in operationalizing the CRPD. Monitoring and evaluation practitioners have made significant advances in developing performance indicators to sim- plify the task of monitoring and evaluating human rights implementation and development interventions. Although most countries have a long way to go before they have effective monitoring and evaluation in the realm of disability and other areas, many are establishing monitoring and evaluation working groups comprising representatives from government, donor agencies, civil so- ciety, the UN system, and academic institutions. These groups seek to identify and adapt the indicators appropriate for their countries and to harmonize the collection, analysis, and reporting of data. As the first human rights convention to explicitly call upon states parties to reform their development assistance programs to include people with dis- abilities, the CRPD provides an important impetus for international coopera- tion and assistance. Considerable effort must be taken to ensure that donor governments and recipient developing countries adhere to the inclusive de- velopment mandate. This is unlikely to be achieved through the vehicle of na- tional disability legislative reform, but instead must be implemented through the adoption and monitoring of development policies. Participation in devel- opment decision making is a major focus of many DPO capacity-building en- deavors, and is reflected in the Australian Agency for International Develop- ment Disability Strategy, along with other donor initiatives. Groups such as Handicap International have worked to ensure that development tools, such as the processes to develop poverty reduction strategy papers in developing countries, are inclusive and conducted in collaboration and consultation with local DPOs. Looking Forward The CRPD provides a conceptual model for the legal empowerment of per- sons with disabilities through innovative and broad-based interventions. Its obligations are to be implemented through actions required by the mecha- nisms familiar to the rule of law orthodoxy. Moreover, beyond law and policy change, CRPD obligations are to be applied through culture building, partici- patory and empowering engagement in decision making, inclusive develop- ment practices, disability rights education, rights-based budget analysis, and other activities. The CRPD calls upon states, as well as development actors and DPOs, to engage in a variety of human rights actions in order to realize its implementation—from scoping exercises that examine accessibility obliga- tions in law and policy to law reform, law development, and human rights education that raises awareness among a wide array of stakeholders. The World Bank Legal Review64 The CRPD embodies the potential for a significant transformation in dis- ability legislation, policies, and programs around the world to empower per- sons with disabilities through full and equal enjoyment of all human rights and fundamental freedoms. Many governments and development practi- tioners realize this necessity, but do not have adequate knowledge of effec- tive practices and solutions. The CRPD addresses this concern prominently through Article 32, which highlights the role that capacity building, technical assistance, and the exchange of evidence-based knowledge and best practices can play in facilitating the changes that may be required after ratification. In- tellectual assistance plays a role, as does monetary assistance to support ac- tions by low- and middle-income countries to put the convention into practice. Article 32 encourages financial assistance to aid in CRPD implementation through inclusive and accessible aid programming. When international devel- opment addresses disability only as a separate issue distinct from mainstream programs, the result is a vicious circle where individuals with disabilities are further excluded and marginalized from the benefits of most economic and social development reforms and actions.77 Hence, Article 32 is critical to as- sist states parties in meeting their obligations under the CRPD and requires strong international cooperation. The international development community, together with the international disability rights community, can play a signifi- cant role in assisting states parties to reform their laws, policies, and programs to implement the CRPD by strengthening technical assistance, providing fi- nancial support to implement the articles of the convention, and exchanging knowledge on best practices. Article 32 requires states parties to work with each other and with relevant organizations to support capacity building “through the exchange and sharing of information, experiences, training pro- grammes and best practices” and to “facilitate cooperation in research and access to scientific and technical knowledge.” Knowledge and practices can be exchanged via networks that encour- age dialogue and collaboration through multiple communication strategies among researchers in academic institutions, think tanks, and governments across geographic regions. Participants in such networks can share findings from their activities that increase awareness and understanding about people with disabilities in areas such as deinstitutionalization and community living, employment and economic empowerment, legal capacity, human rights, and access to health care, education, and technology. One example of such a network is the Global Forum on Law, Justice and Development (GFLJD), initiated by the World Bank’s Legal Vice Presidency together with a number of academic and institutional partners from around the world. The GFLJD aims to bring together stakeholders in the fields of law, justice, and development, combining the economic, legal, and technical as- pects of a range of targeted issues beyond disability. By introducing disability into this network, practitioners can work toward mainstreaming the needs of 77 Samant, Matter, & Harniss, supra note 45. Beyond the Orthodoxy of Rule of Law and Justice Sector Reform 65 persons with disabilities across the spectrum of law, justice, and development programs around the world. The approaches to legal empowerment and innovation called for in the implementation of the CRPD can be built upon to advance an emerging dis- ability rights narrative with roots at the community as well as national level. Empowerment and innovation will be achieved in these reform efforts only with the full participation of and meaningful consultation with persons with disabilities and their representative organizations. The Political Economy of Improving Traditional Justice Systems A Case Study of NGO Engagement with Shalish in Bangladesh Stephen Golub In the past decade, the role that traditional justice systems (TJSs) play in the lives of the rural poor has received increasing attention.1 Sometimes referred to as customary justice systems, nonstate justice systems (because they have not originated as legal systems devised and administered by the state), or al- ternative dispute resolution (when viewed as alternatives to the courts), TJSs handle most disputes and other justice processes in many societies, particu- larly in rural areas. Across the globe, institutions such as development agencies, national gov- ernments, and civil society groups are exploring whether and how to work with TJSs. TJSs merit this focus because they are so central to the lives of so many. Yet, they often are blatantly unfair to women and other populations who suffer from power imbalances in their disputes and in their lives. The powerful can use TJSs as a mechanism to control the relatively powerless. They are often instruments, then, for the administration not just of justice but also, informally, of local governance. With these considerations in mind, what can and should development, government, and civil society institutions do to help make TJSs more equitable in their operations? This chapter aims to address this question by examining how NGOs in Bangladesh attempt to employ, modify, or monitor the country’s main TJS, known as shalish, so as to retain its meritorious features and ameliorate its drawbacks.2 Most Bangladeshi NGOs seek to make shalish less gender biased, corrupt, and punitive, as well as fairer and more accountable. As with any customary system, the way shalish functions varies among communities 1 The World Bank, the UK Department for International Development (DfID), the United Nations Development Programme (UNDP), and the International Development Law Or- ganization are but a few of the major international agencies conducting relevant research, programs, or other initiatives. 2 This chapter draws on the author’s numerous visits to Bangladesh between 1993 and 2012 in the course of consulting for DfID, the Asia Foundation, the Asian Development Bank, the Ford Foundation, and other internationally oriented organizations, as well as additional research conducted by the author. 67 The World Bank Legal Review68 and regions. However, the picture painted with broad strokes in this chapter applies to much of the country. The TJS operations of Bangladeshi NGOs take on additional salience for the international community in view of the recently launched the Community Legal Services Programme, which will support such work (as well as related, justice-oriented activities). Funded by the United Kingdom Department for International Development (DfID), this five-year (2012–17), 17 million GBP initiative will provide a substantial base of experience and research that other development institutions and countries can draw on.3 This chapter first delves into the importance of TJSs. It then discusses the nature of shalish in its conventional, unmodified form, unaffected by NGO in- fluence. It moves on to address NGO efforts to improve shalish operations or to act as substitutes for the process. Finally, the chapter offers some reflections on the implications of this analysis for international development, including for NGOs and governments concerned with customary justice. The political economy approach taken in this discussion mirrors the strat- egies of many NGOs seeking to improve shalish. Traditional justice is not just about dispute resolution. It is also about power, politics, governance, gender, community dynamics, and resource allocation. Any approach to justice and development that relies mainly on technical analyses and solutions is bound to fall far short of the mark in its attempts to formulate, promote, and implement reforms. This kind of approach is es- pecially misguided in the case of customary justice. For instance, an NGO or government program that trains traditional leaders how to mediate intra- community conflicts addresses a minor or nonexistent need. That organiza- tion or program should instead focus on the economic, political, and cultural influences and incentives that shape the behaviors of community leaders and members alike. To their considerable credit, many Bangladeshi NGOs do exactly that in grappling with the considerable challenge of improving shalish. In taking this tack, these NGOs take a legal empowerment approach to working with traditional justice. That is, the NGOs use the law (in this case, customary law) and rights (involving gender equity, for example) specifically to help the disadvantaged gain greater control over their lives. The Global Context: The Main Way the Poor Seek Justice DfID has estimated that “in many developing countries, traditional or cus- tomary legal systems account for 80 percent of total cases.”4 The Development Assistance Committee of the Organisation for Economic Co-operation and 3 See http://www.communitylegalservice.org/index.php (accessed Sep. 28, 2012). 4 DfID, Safety, Security and Accessible Justice: Putting Policy into Practice 58 (undated). http://www.communitylegalservice.org/index.php The Political Economy of Improving Traditional Justice Systems 69 Development (OECD) similarly points to research suggesting that “non-state systems are the main providers of justice and security for up to 80 –90 percent of the population” in fragile states.5 These calculations reflect the fact that, by virtue of choice or necessity, the poor in many societies use customary forums to seek justice more than they do formal governmental institutions, especially in rural areas. Why is this the case? Due to cost, inconvenience, incomprehensibility, or corruption, justice through judiciaries (and other state institutions) can be dif- ficult or impossible for poor people to access. Even where access to justice through state institutions is feasible, it is not necessarily the preferred option. In the relatively rare instances where free legal aid is available and effec- tive, the act of going to court can be an expensive one. It can involve court fees and other expenses, and repeated court visits can drain a great deal of time away from earning a living. Going to court also can be inconvenient, due to those repeated visits and the great distances that the rural poor must travel for trials and other legal proceedings. Once a plaintiff is in court, the proceedings may be incomprehensible, often conducted in languages (such as those of the nations’ former colonial rulers) that may be foreign to him or her. In addition, legal discourse is highly technical and beyond the grasp of even educated nonlawyers, not to mention the illiterate or impoverished. Finally, there is no guarantee that judicial proceedings are free from corruption, political control, gender biases, or other undue influences that undercut their fairness, particu- larly for the poor. None of this is to deny the value of well-functioning courts for many pur- poses, not least addressing serious crimes, human rights abuses, and public policy issues. Nor is it to claim that TJSs always operate fairly; as already em- phasized here, that is far from the case. But the fact that a well-functioning judiciary is desirable does not mean it is achievable. Efforts to address judi- cial inadequacies have proven problematic in many nations, including Ban- gladesh. Notwithstanding the presence of some fine Bangladeshi jurists, the country’s court system has been resistant to change. A 2011 World Bank re- port, Disputes, Crimes and Pathways of Redress: A Household Survey on Citizens’ Perceptions and Experiences of the Justice System in Bangladesh, indicates wide- spread lack of public confidence in the courts, police, and other formal justice sector institutions.6 In terms of cost, convenience, and comprehensibility, TJSs do have distinct advantages over the courts. The poor do not have to pay to use them. TJSs usu- ally take far less time than court cases do, even if they do not always offer in- stant justice. Their dispute-resolution sessions typically take place much closer 5 OECD/DAC Network on Conflict, Peace and Development Co-operation, Enhancing the De- livery of Justice and Security in Fragile States 4 (Aug. 2006). 6 Saku Akmeemana, Disputes, Crimes and Pathways of Redress: A Household Survey on Citizens’ Perceptions and Experiences of the Justice System in Bangladesh (World Bank 2011). The World Bank Legal Review70 to where the poor reside. TJS proceedings are conducted in languages that the poor understand and are often conducted by fellow community members. Being more comprehensible and rooted in their communities can make some TJSs more transparent and accountable to the poor—at least compared with incomprehensible judicial systems that leave the poor open to manipula- tion by judges, court personnel, or even their own attorneys. Nevertheless, although TJSs may be preferable to the courts for many purposes, that fact constitutes faint praise. Conventional Shalish: An Overview The term shalish (or salish) refers to a traditional, community-based, largely informal Bangladeshi process through which small, loosely constituted panels of influential local figures help resolve community members’ disputes and/ or impose sanctions on them. The term is applied in at least four ways: to the process in general, to an individual hearing, to a series of hearings about a specific dispute, and to the panel conducting a hearing. The panel members are called shalishdars. Although practiced across most of the country, shalish is not the only lo- cal, informal method of dispute resolution in Bangladesh. Cultural minorities employ their own, varied methods. As in many societies, Bangladeshi dis- putants may seek out influential individuals for advice or decisions without turning to a panel of such persons. But the widespread use and diverse forms of shalish make it potentially fertile ground for international efforts to under- stand analogous processes and external efforts to improve them. Shalish may involve voluntary submission to arbitration (which, in this context, involves the parties agreeing to submit to the judgment of the shalish panel) or mediation (in which the panel helps the disputants devise a settle- ment themselves). Frequently, shalish blends the two, such that the two par- ties are nominally free to accept or reject shalishdars’ recommendations, but pressure from the shalishdars or other community members may undermine the voluntariness of such decisions. A harsh (though relatively rare) version of shalish can take a punitive form. In such instances, the forum constitutes a de facto criminal court that inflicts trial and punishment on individuals who have not consented to its jurisdiction. With the exception of the summary judgment imposed under that harsh version, a shalish can result in a quick resolution or may extend over numer- ous sessions and months. Negotiations between disputants, often including or represented by family members, sometimes also take place outside these sessions, complementing the discussions that take place within them. The term “dispute-resolution process” suggests calm deliberation, with the parties patiently putting forth their perspectives and impartial facilitators The Political Economy of Improving Traditional Justice Systems 71 soberly sorting through the issues. Although not the product of a scientific survey, this author’s impressions of more than a dozen (NGO-organized) sha- lish sessions during the 1990s were rather different: The actual shalish is often a loud and passionate event in which disputants, relatives, [shalish panel] members and even uninvited community members congregate to express their thoughts and feel- ings. Additional observers—adults and children alike—gather in the room’s doorway and outside. More than one exchange of opinions may occur simultaneously. Calm discussions explode into bursts of shouting and even laughter or tears. All of this typically takes place in a crowded school room or other public space, sweltering most of the year, often with the noise of other community activities filter- ing in from outside. The number of participants and observers may range from a few dozen to well over one hundred.7 Even more significant, it can be misleading to characterize shalish as con- stituting alternative dispute resolution. As Siddiqi explains: The shalish should not be thought of as an alternative [emphasis in original] dispute resolution mechanism in Bangladesh. The concept of Alternative Dispute Resolution (ADR) was developed in relation to a specific set of needs within various “western” legal systems. While many features of ADR are similar to those that characterize the shalish, the latter does not by any means constitute an alterna- tive for the vast majority of the rural population. Indeed, despite its visibility and prominence, available statistics would argue for view- ing the formal justice system as the “alternative” form of dispute resolution.8 Siddiqi’s insight applies to most disputes involving most rural Bangla- deshis and many urban ones. Even if the country’s problematic courts oper- ated more efficiently and equitably, they still would represent an alternative to shalish, rather than vice versa. The Main Types of Disputes Addressed via Shalish Shalish most commonly addresses two types of disputes: one category in- volves family and gender issues; the other involves property, including land and petty theft. Gender/family disputes can pertain to dowry (the price, in cash or kind, that the bride’s family typically pays that of the groom), dower/denmohor (a payment that the groom may promise the bride but that she usually forgoes 7 Stephen Golub, From the Village to the University: Legal Activism in Bangladesh, in Many Roads to Justice: The Law-Related Work of Ford Foundation Grantees around the World 137 –38 (Mary McClymont & Stephen Golub ed., Ford Foundation 2000). 8 D. M. Siddiqi, Shalish and the Quest for Gender Justice: An Assessment of Strategic Interventions in Bangladesh, report prepared for Research Initiatives, Bangladesh, 11 (Mar. 17, 2004). The World Bank Legal Review72 unless he divorces her), maintenance payments (for a wife’s and children’s ex- penses in the event of separation or divorce), polygamy, “torture” (a term that usually refers to physical or psychological abuse, such as by the husband’s family against the wife, rather than to protracted infliction of pain for pur- poses of sadism or interrogation), and divorce. Given the nature of Bangladeshi households and family structures, many such disputes are not confined to two individuals. Entire families often become involved and may even instigate conflict. In such instances, not all mistreat- ment is by men against women. A husband’s mother may be the lead actor in abuses against his wife. And gender-related power imbalances notwithstand- ing, there certainly are instances in which women treat men unfairly. That being said, abusive treatment of women cuts across many gender- related disputes. This can involve both physical and psychological mistreat- ment (the latter sometimes called “mental torture”). Young women who are taken into the homes of in-laws after marriage may be especially victimized in this way. The new wives are often just girls.9 Such abuse often is linked to ongoing dowry demands by the husband’s family. Dowry does not appear deeply rooted in the history of the lands that be- came Bangladesh. White10 and Rozario11 both suggest that dowry dates back only several decades at most, and that previously it was common for the hus- band’s family to pay that of the wife in connection with a wedding. Why dowry has become dominant is a matter of conjecture. Geirbo and Imam discuss an array of possible economic, social, and historical causes—including supply and demand for husbands versus wives—but do not draw firm conclusions.12 In any case, dowry triggers or is otherwise related to gender disputes be- cause it involves demands by the husband or his parents for payments by the wife’s parents. The convention must be seen in the context of a society in which poorly educated girls are viewed as economic liabilities; families may be anxious to see daughters wed because (if the families are impoverished) they represent extra mouths to feed and/or marriages may represent a road to the families’ social advancement; and girls and their families may be socially ostracized if they remain single. As with gender-related disputes, land conflicts blend with other societal issues. They are embedded in the nature of the society’s poverty, structure, 9 In one area studied by the Bangladeshi Rural Advancement Committee (BRAC) and the Population Council, 80 percent of brides were under 18 years old. BRAC and Population Council, Bangladesh Adolescent Survey 2004 (Dhaka 2004). 10 S. White, Arguing with the Crocodile: Class and Gender Hierarchies in a Bangladeshi Village 102 (U. Press Limited 1992). 11 S. Rozario, Purity and Communal Boundaries: Women and Social Change in a Bangladeshi Village 131–35 (U. Press Limited 2001). 12 H. C. Geirbo & N. Imam, The Motivations behind Giving and Taking Dowry, Research Mono- graph Series No. 28, 2 –3 (BRAC Research and Evaluation Division Jul. 2006). The Political Economy of Improving Traditional Justice Systems 73 and agrarian constraints.13 Problems involving land are not always distinct from gender matters, and they may be intrafamily in nature. Conventional Shalish as Both Dispute Resolution and Social Control Before considering efforts to modify shalish, it is important to consider what shalish constitutes in its conventional, traditional form. As summarized by Khair, traditional shalish is basically a practice of gathering village elders and concerned par- ties, exclusively male, for the resolution of local disputes. Sometimes Chairmen and elite members of the Union Parishad [a local govern- ment unit] are invited to sit through the proceedings. Shalish has no fixed dimension and its size and structure depend entirely on the nature and gravity of the problem at hand.14 A shalish may be completed in one day, but it may extend over a number of sessions and involve private negotiations between disputants, often encom- passing their families. Traditional shalish may inappropriately and illegally handle even the most serious criminal actions, including rape. Whether a specific shalish constitutes mediation or arbitration, or a blend of the two, hinges on the dynamics at play. Community mores and the opin- ions of powerful leaders often exert such strong influences that outcomes are imposed on a disputant contrary to his or her wishes. In the alternative, the disputant may have a nominal choice, but pressure to act in accord with mores and opinions effectively forces acquiescence. Thus, a woman victimized by domestic violence may be forced to return to her husband because the shalish- dars tolerate such treatment and because they chastise the husband only in a pro forma manner. Khair and her colleagues highlight some of the problems afflicting con- ventional shalish: Sometimes solutions are arbitrary and imposed on reluctant dispu- tants by powerful village or community members. Such “solutions” are based less on civil or other law than on subjective judgments designed to ensure the continuity of their leadership, to strengthen their relational alliances, or to uphold the perceived cultural norms and biases. The shalish also is susceptible to manipulation by corrupt touts [persons who exploit some nominal knowledge of the law] and local musclemen who may be hired to guide the pace and direction of the process by intimidation. Furthermore, because the traditional 13 See, for example, E. G. Jansen, Rural Bangladesh: Competition for Scarce Resources (Norwegian U. Press 1987). 14 S. Khair, Alternative Approaches to Justice: A Review of ADR Initiatives under the Democracy Part- nership, report prepared for the Asia Foundation, 5 (May 2001). The World Bank Legal Review74 shalish is composed exclusively of male members, women are par- ticularly vulnerable to extreme judgments and harsh penalties.15 One additional, crucial dimension of traditional shalish that must be emphasized is its role as an institution for perpetuating the social control of women and the poor. Hashmi explicates this point when describing the “member-matbar-mulla” triumvirate that controls village affairs, including shalish: The members of the Union Parishad (the lowest electoral unit) are elected officials, in charge of the disbursement of public goods and relief materials among the poor villagers, and are the most powerful in the triumvirate. They are often connected with the ruling political party of other influential power-brokers in the neighboring towns or groups of villages. The matbars (matabbars) or village elders, who also sit on the salish (village court), are next in the hierarchy, hav- ing vested interests in the village economy as rentiers and money- lenders. They often get shares in misappropriated relief goods along with government officials and members-chairmen of the Union Pari- shads. The mulla, associated with the local mosques and maktabs (el- ementary religious schools), are sometimes quite influential as they endorse the activities of village elders albeit in the name of Islamic or Sharia law. They often sit on the salish and issue fatwas in support of their patrons, the village elders. The rural poor, often women, are victims of these fatwas.16 The increasing involvement of women and younger political figures in village affairs may run counter to the bleak picture painted here. However, with the increased politicization of society involving armed thugs, these influences are further tainting traditional shalish, according to a number of sources.17 Why, then, do Bangladeshis still turn to traditional shalish to address their disputes? The reasons echo the reality that customary justice systems are often favored by the poor across the globe. Thus, although otherwise highly critical of the institution, Siddiqi notes: For poor villagers, especially women, the shalish offers many advan- tages. First, a shalish hearing does not require any serious expendi- ture. Second, it takes place locally, at a time that is convenient for all of the parties involved. Proceedings occur in a language and frame- 15 S. Khair et al., Access to Justice: Best Practices under the Democracy Partnership 8–9 (Asia Foun- dation, Apr. 2002). 16 T. Hashmi, Women and Islam in Bangladesh: Beyond Subjection and Tyranny 137 (Macmillan 2000). 17 For a summary of recent scholarship concerning these trends, see Harry Blair, Civil Society, Dispute Resolution and Local Governance in Bangladesh: Ideas for Pro-Poor Programme Support, report prepared for the Department for International Development, UK High Commission (May 2003). The Political Economy of Improving Traditional Justice Systems 75 work of justice that is comprehensible to the litigants. Third, disputes are resolved relatively quickly, usually in one to three sittings.18 The bottom line is that shalish is often the first and only choice available to impoverished Bangladeshis. It is affordable, comprehensible, convenient, and efficient, even in contrast with a well-functioning judicial system—not to mention the country’s courts. Efforts to modify conventional shalish, then, should not be seen simply in terms of improving dispute resolution or access to justice. To the consider- able degree that traditional shalish perpetuates poverty and the poor’s lack of control over their lives, efforts to reform it can contribute to the fundamental development goals of poverty alleviation and good governance. The Punitive Approach: Shalish as Trial From time to time, harshly punitive versions of traditional shalish have been reported. These reports describe incidents of people being lashed or even stoned to death for violation of local norms. The reports, which received at- tention from Amnesty International in the 1990s,19 have attracted significant attention in the Bangladeshi press over the years. The kind of shalish documented in these reports goes far beyond media- tion or even arbitration and amounts to de facto trials. These trials result in fatwas decreed by mullas who belong to the shalish panels or otherwise influ- ence them. The mullas interpret or misinterpret sharia to subject the “defen- dants” to horrible punishment that exceeds the more mundane (though still unfair) edicts described by Hashmi. While egregious, these punitive shalish processes appear to be relatively rare. According to a 2006–07 study conducted by the Asia Foundation for DfID: Only a few NGOs consulted in the study had even heard of such abuses taking place anywhere close to their areas of operation. Even then, their responses to questions about the practice suggest that the few dozen newspaper reports of the abuses may represent the sum total of the problem rather than a window on a problem that is more prevalent than reports would suggest. This is also the opinion of ASK [Ain O Salish Kendra, a women’s rights NGO discussed in fur- ther detail below], which tracks violations of this kind. Local and na- tional NGOs are sometimes able to mobilize police to prevent such actions before they occur.20 18 D. M. Siddiqi, Paving the Way to Justice: The Experience of Nagorik Uddyog, Bangladesh 10 (One World Action 2005). 19 See, for example, Amnesty International, Bangladesh: Taking the Law in Their Own Hands: The Village Salish (ASA Dec. 13, 1993). 20 Asia Foundation, Promoting Improved Access to Justice: Community Legal Service Delivery in Bangladesh 22 (Asia Foundation, Mar. 2007). The World Bank Legal Review76 This is not to minimize the threat that punitive shalish could become if it were to grow in rural areas, particularly given the increasing influence of ultraconservative religious elements in some parts of the country in recent years. At this point, however, the problem seems to be severe in nature but limited in scope. Four Prominent Approaches to Modifying Shalish There appear to be four main approaches that NGOs take to modify shalish.21 NGOs Organize Shalish Possibly the most common form of NGO interaction with shalish occurs when an NGO organizes shalish panels and sessions, sometimes building on other rights-oriented or development-oriented activities it has undertaken in the community. NGOs are able to take such initiatives for varying reasons, includ- ing their long-standing presence and credibility in a community, the influence they derive from their other operations, and in some cases their success at co- opting traditional shalishdars. Much of this approach is derived from the pioneering efforts of the Madaripur Legal Aid Association (MLAA, named for the district in which it mainly works). MLAA’s work reaches back nearly 30 years. In addition to its own direct engagement with shalish, MLAA provides lawyers to assist clients when necessary (such as when they are victims of violent crimes) and trains NGOs from across the country in its approach. The nature and degree of NGO engagement with shalish varies consid- erably. NGOs such as MLAA and Nagorik Uddyog (NU) may include tra- ditional shalishdars in the new panels in order to maintain the presence of influential persons. But they supplement them with educated persons (such as teachers) who may have broader and less-traditional perspectives, women from various backgrounds, and men who may be relatively uneducated or impoverished. Once the NGO convenes a shalish, its own personnel may play passive roles at the session, with the shalishdars managing the mediation. There are distinct differences among organizations taking this approach. MLAA is distinguished by a fairly extensive network of personnel covering a district (and nearby areas) of more than 1 million people and close, longstand- ing connections with the local bar associations. The community-based organi- zations it forms are mainly shalish panels. In contrast, the Bangladesh National Women Lawyers Association (BNWLA) works with partner NGOs that in turn train community members 21 Although the author has been able to update the information upon which he bases this sec- tion via correspondence and three 2012 visits to Bangladesh, much of the analysis in this section draws on research conducted five or more years ago. It is possible that the nature of the engagement of certain NGOs with shalish changed during the intervening period. The Political Economy of Improving Traditional Justice Systems 77 to conduct shalish. Unlike with MLAA, BNWLA personnel do not attend sha- lish sessions, but representatives from partner NGOs do. NU organizes and trains shalish panels on a local (ward) level, requiring that at least one-third of the shalishdars be women. NU then draws on these panels to form higher-level (Union Parishad) legal aid committees that both review shalish outcomes and monitor the more general human rights situa- tion in their areas. Unlike BNWLA and MLAA, NU does not include attorneys on its staff. Like NU, the women’s development NGO Banchte Shekha, which in many respects is also a membership organization, often plays active and di- verse roles with respect to its partner populations. It is active, for instance, in the areas of livelihood, credit, health, education, and other gender-oriented work. Many years of efforts to improve women’s perspectives, knowledge, financial well-being, and status bolster the NGO’s local credibility and influ- ence in its approach to shalish. Its shalish panels are accordingly more heavily weighted with untraditional shalishdars, especially women, drawn from its partner populations. Its personnel play active roles in suggesting and even directing shalish deliberations. Although there is no typical model for NGO-organized shalish, Hasle pro- vides a useful summary of a process employed by NU. She bears quoting at some length, for she illustrates the many stages of the organization’s engage- ment with the process: NU seeks out members of the traditional shalish that are open to a more democratic and just form of dispute resolution—as identified through participatory local level workshops—and invites them to become members of a local NU shalish committee, along with other individuals representing a cross-section of the community. One third of the members are women, and a particular effort is made to in- clude women Union members [i.e., women who have been elected to the local Union Parishad, or governing council]. As a matter of strategy, NU seek[s] to transform rather than replace the existing power structure through a method of cooptation, and in particular by bringing together “influential” and ordinary (“non- influential”) members of the community in training and mediation, thereby fostering new allegiances. . . . Once established, NU aims to provide the committee members with necessary tools for promoting greater justice in the shalish process. Emphasis is given to education and training, combining human rights education with information about the law, including civil and criminal laws, as well as religious and customary laws. Committee members are also introduced to local lawyers who stand ready to assist them on a case-by-case basis. Role-plays and other forms of participatory exercises are used to enhance the members’ sensitivity to prevailing attitudes and norms that discriminate against women, and develop legal and moral arguments for how these can be coun- The World Bank Legal Review78 teracted through the shalish. Members of the shalish committee are not, however, on NU’s payroll, and are free to take part in the tradi- tional shalish in their own capacity. One of NU’s main activities is to organise shalish hearings (NU- shalish hereafter). These are convened on the basis of an applica- tion from an aggrieved member of the community, which is filed with one of NU’s Community Organisers (CO). COs are volunteers from the respective communities where NU operates, and each CO cover[s] one Union. All COs have received human rights and legal training from NU, and have access to local lawyers. When NU has accepted an application . . . the CO undertakes a fact- finding exercise, to verify the applicant’s claims and to collect other relevant information. Provided the application is considered valid (i.e. that the fact-finding confirms that there is a grievance), a formal notice inviting the respondent to a NU-shalish is sent. . . . It should be noted that NU would not convene a shalish in criminal cases, as a part of their strategy to promote greater respect for the rule of law; and would take action to ensure that these cases are adjudicated by formal courts, with assistance from NU as relevant. Assuming the respondent is willing to meet in a NU-shalish, a me- diation session is convened. While NU facilitates the mediation by organising the venue, NU staff plays a passive role in the discussion, which is led by members of the NU-shalish committee, representa- tives from NU’s women leadership programme and representatives from each of the parties (which may include non-NU shalishdars and other influential people). According to NU policy, a resolution should be reached through mediation and not arbitration. As discussed with project staff, this is understood to imply willingness to compromise on both sides, and while law is a relevant factor in the negotiation, it is not the only—or even the dominant—consideration. . . . Provided an agreement is reached, which is overwhelmingly the case, this is recorded in the minutes of the hearing, which is signed by both parties. . . . If the opposing party is unwilling to reach a settlement, or the applicant considers the settlement unreasonable, NU stands ready to provide legal aid to the applicant so as to facili- tate a formal court hearing. This is also an option in cases where the respondent does not abide by the decisions made. Following the mediation, NU undertakes to visit the applicant on a monthly basis for three months, so as to monitor the implementation of the shalish decision.22 A 2011 study of NU’s program to build up women’s leadership roles (in- cluding in shalish) provides a similarly positive assessment of the organiza- tion’s work: 22 Lena Hasle, Too Poor for Rights? Access to Justice for Poor Women in Bangladesh: A Case Study 10 –12 (unpublished MSC dissertation for the London School of Economics 2004). The Political Economy of Improving Traditional Justice Systems 79 [I]t seems that this programme is . . . a potentially useful model of a women’s leadership building strategy. . . . The efforts of Nagorik Uddyog appear to have resulted in perceptible expansion of wom- en’s political space (manifest in greater substantive participation in shalish) and in conjunction with other women’s empowerment strategies currently taking place in rural Bangladesh, such efforts could have a real, positive long-term impact on the status of women in Bangladeshi society.23 NGO-Assisted Community-Based Organizations (CBOs) Modify Shalish Some NGOs concentrate on strengthening partner community-based orga- nizations (CBOs) so that they can affect shalish.24 Part of the rationale is to strengthen access to justice while minimizing NGO engagement and com- munity dependence on NGOs. Under this approach, NGO personnel avoid involvement in creating panels and initiating sessions. They instead concen- trate on strengthening citizen capacities to join, pressure, persuade, educate, and otherwise influence traditional shalish bodies. The community mem- bers who are trained and supported by NGOs seek to influence preexisting shalish panels. To varying extents, NGOs engage in monitoring traditional shalish panels even as they seek to co-opt those panels or set up parallel structures. Ain O Salish Kendra (ASK), a women’s rights NGO, takes this approach. ASK trains and supports a number of other NGOs to help affiliated CBOs exert influence on shalish and on other local institutions and issues. One such partner orga- nization is the Bangladesh Rural Advancement Committee (BRAC), a very large national NGO that promotes livelihood development, microfinance, and numerous other socioeconomic initiatives in many parts of the country.25 Siddiqi summarizes key aspects of this approach, in terms of how ASK aids partner NGOs: The organization does not have any offices in the field but works through six [at the time of Siddiqi’s summary] partner NGOs. GSJP [ASK Gender and Social Justice Program] staff spend considerable time in the field but their mandate is strictly limited. They do not form alternative shalish committees, nor are they allowed to partici- pate in local shalish. Their role is to observe, to monitor and to per- suade. The GSJP seeks to monitor local shalish, track human rights violations in its working areas and increase the legal literacy of the 23 Ryan Higgitt, Women’s Leadership Building as a Poverty Reduction Strategy, 6(1) J. S. Asian Dev. 114 (2011). 24 To make a crude distinction between the two, NGOs are nonprofits that at least partly com- prise paid staff, whereas CBOs comprise members of the very populations they serve, repre- sent, or otherwise benefit. 25 In recent years, BRAC has branched out beyond Bangladesh to launch operations in other countries. The World Bank Legal Review80 local population. The strategy is to empower through knowledge. ASK focuses on legal education and empowerment in a general sense, working on the assumption that the desired effect on the sha- lish can be achieved only with an overall shift in ideology. With the help of its partner NGOs, ASK staff members in the field help to organize a Manobodhikar Songrokkhon Parishad (MSP) [Human Rights Protection Committee], previously known as Ain Shohayota Committees (ASC) [legal assistance committees]. [ASK and its partner NGOs also organize human rights committees exclu- sively comprising women.] As the name suggests, the responsibili- ties of MSP members are primarily to monitor the local situation, to intervene in cases where the law has been broken and to facilitate the spread of human rights information. Committee members basically have a watchdog capacity. Members are not necessary [sic] drawn from the dominant social groups, at least not exclusively. Through its Gender and Social Justice program, ASK seeks to chal- lenge and transform local knowledge and moral codes of conduct. The organization’s approach is quite distinct—unlike other NGOs involved in remaking the shalish, ASK does not intervene directly in shalish proceedings. Its objective is more long-term—it seeks to per- suade the inhabitants in its working areas of the need to transform the existing gendered and unequal structures of power.26 As Siddiqi further explains, “ASK proceeds on the assumption that an equitable and representative shalish structure can be created and sustained only when there is an overall shift in community norms and practices of power.”27 This point does not discount other organizations’ efforts to alter commu- nity dynamics so that women and other disadvantaged populations achieve greater power and more equitable treatment. The ASK approach aims for a lesser degree of NGO engagement so as to facilitate a greater degree of CBO empowerment. The ways in which such an approach plays out in practice vary among partner NGOs, but usually involve a degree of community organizing by the partner. Alim describes how one partner, BRAC, increased the power of its members by pulling them together into not just small-scale community orga- nizations but also larger-scale (but still local) federations that have a greater likelihood of exercising influence.28 Alim analyzes two examples of such operations. In one instance the fed- eration (with a woman leading the way) influenced the deliberations of a 26 Siddiqi, supra note 8. 27 D. M. Siddiqi, Ain O Salish Kendra: Twenty Years on the Frontline 34 (ASK Dec. 2006). 28 A. Alim, Shalish and the Role of BRAC’s Federation: Improving the Poor’s Access to Justice, Social Science Research Network Paper 905745 (2004), available at papers.ssrn.com/sol3/papers .cfm?abstract_id=905745. www.papers.ssrn.com/sol3/papers.cfm?abstract_id=905745 papers.ssrn.com/sol3/papers The Political Economy of Improving Traditional Justice Systems 81 shalish regarding an alleged petty theft. In the other, a case of a husband who had illegally taken a second wife, the federation sought police assistance when the shalish failed to reach a resolution. Specifically, this intervention prevented the husband from selling land and leaving his first wife and five children destitute.29 NGO Staff Members Conduct Shalish A number of NGOs utilize individual staff members to settle conflicts between disputants without the involvement of shalish panels. Such efforts—often also called shalish by such groups because of their mediation-oriented nature— can take a number of forms. In some instances, a field or office worker initially interviews one or more disputants and explores the other options of NGO-fa- cilitated shalish or litigation. In others, this kind of shalish is the main mecha- nism by which the NGO seeks to help resolve a dispute; the NGO retains the option of utilizing its own staff or outside counsel to pursue legal redress. Thus, at the same time that ASK aids partner NGOs and CBOs in modify- ing traditional shalish, its Dhaka-based personnel conduct shalish between disputants. Similarly, even as BRAC (sometimes with the assistance of ASK) seeks to strengthen the roles of its partner populations and CBOs in modifying traditional shalish and human rights in their communities, its staff members individually conduct shalish sessions. Bangladesh Legal Aid and Services Trust (BLAST), a national NGO that undertakes both individual legal aid and more policy-oriented litigation and advocacy, employs this approach exclusively. Staff members engage in shalish but do not become involved in organizing shalish panels or CBOs the way other NGOs’ staff members do. The BLAST approach also differs in that, un- like some other NGOs (that rely on outside counsel), BLAST can threaten a recalcitrant party with litigation on behalf of BLAST’s client if an agreement is not reached. Thus, BLAST is often closer to arbitration than mediation on the spectrum of what shalish effectively means. This is not to say that BLAST always takes the opposing party to court if shalish fails. But the threat is more immediate than for many other NGOs. NGOs Aid the Government’s Village Court System Bangladesh has made an effort to build on the advantages of shalish by insti- tuting a formal, officially recognized mediation system. First implemented de- cades ago, village courts are dispute-resolution bodies that have official status under the laws of Bangladesh30 but have been moribund in large parts of the country. In connection with the adoption of the Village Courts Act in 2006, there has been renewed donor and government interest in reviving these insti- 29 Id., at 42–43. 30 The 1961 Muslim Family Laws Ordinance is a precursor to the village courts. The 1976 Vil- lage Courts Ordinance put in place the legal structure that, except for raising the jurisdiction limit from 5,000 to 25,000 taka, largely stayed unchanged in the 2006 Village Courts Act. The World Bank Legal Review82 tutions. The United Nations Development Programme (UNDP), for example, is conducting a project aiming to “activate” village courts.31 Union Parishad chairpersons head village courts. Other Union Parishad members may substitute for them, however. In addition, with the permission of the chairperson, a nonmember may chair the five-person village court panel. The opposing sides of a dispute each select two of the other four members, in- cluding one Union Parishad member each. If two parties agree to the jurisdic- tion of a village court, they are bound by its decision if four out of the five pan- elists (or if one panelist is absent, three out of four members) agree on a ruling. In recent years, MLAA has played a role in trying to revive the institu- tion through training and advice. Certainly, Union Parishad chairpersons command a great deal of authority in their communities. Disputes, Crimes and Pathways of Redress indicates that community members often seek their help in resolving disputes even in the absence of village courts.32 Other NGOs are more skeptical about the village courts’ prospects for success. They base this skepticism on the long history of largely fruitless ef- forts to fortify institutions. They also are concerned about the village courts’ potentially politicized or corrupt nature. Other sources lend weight to these doubts by raising questions about local political dynamics, Union Parishad members’ biases, and the village courts themselves.33 Additional Research Findings As with so much in the field of law and development, there is a shortage of research that documents the impact of efforts to improve shalish. The studies cited in this chapter provide some preliminary evidence that NGO engage- ment with shalish can enhance equity in resolving disputes and improve the situations of disadvantaged individuals. One could even, very tentatively, in- fer that the gender-equitable effects could contribute to poverty alleviation and improved governance. But much more research needs to be done, and not all findings to date have been favorable. Although the aforementioned 2006-07 Asia Foundation study does not reach firm conclusions, the findings are generally positive. Both beneficiaries and opinion leaders indicate that NGOs that were the foci of the research were generally effective in conducting shalish and otherwise benefit their communities. 31 See http://www.villagecourts.org/index.php (accessed Sep. 29, 2012). 32 Akmeemana, supra note 6. 33 See, for example, Bangladesh Ministry of Women’s and Children’s Affairs (MOWCA), Back- ground Paper on Good Practices and Priorities to Combat Sexual Abuse and Exploitation of Children in Bangladesh (MOWCA 2001); T. Haque et al., In Search of Justice: Women’s Encounters with Alternative Dispute Resolution (Asia Foundation Apr. 2002); and United Nations Development Programme, Human Security in Bangladesh: In Search of Justice and Dignity (UNDP Sep. 2002). http://www.villagecourts.org/index.php The Political Economy of Improving Traditional Justice Systems 83 Yet, not all research on this matter has yielded positive results. Geirbo and Imam find that even though community members served by BRAC have become aware of dowry being illegal, they continue to pay it. Their research further indicates that deeply ingrained social practices and attitudes tend to persist—to some extent, even among some BRAC NGO workers, which has potentially powerful implications for their shalish-oriented work.34 A number of the Asia Foundation study’s focus groups report that illegal dowry and related problems continue despite the efforts of organizations to provide vari- ous kinds of community legal services, including shalish.35 Disputes, Crimes and Pathways of Redress provides provocative insights about how widespread Bangladeshis’ use of NGO justice services such as modified shalish is. Its findings indicate, inter alia, that far more people iden- tify Union Parishad chairpersons (operating informally, rather than in con- nection with formally convened village councils) as a first choice in seeking resolution of legal problems, compared to NGO shalish.36 As scrupulous as this study was, however, it raises as many questions as it answers about dispute resolution and redress. For example, due to the methodology employed by its survey research, the study identified relatively low rates of gender-specific problems (in a society in which dowry, under- age and multiple marriages, physical and psychological abuse of women, and women being cheated out of inheritances and other property are widespread). In addition, especially in view of the aforementioned research regarding the member-matbar-mulla triumvirate and related findings, there remains the is- sue of whether and to what extent people receive fair treatment from chair- persons (or to what extent that treatment is tainted by gender biases, graft, patronage, and other undue influences on their conduct). There also is the matter of whether the study’s design and peer review adequately involved NGO experts. Still, the study provides a useful basis for further research regarding not only NGOs’ and Union Parishad chairpersons’ services but also the public’s widespread lack of confidence in formal justice sector institutions.37 The Bank and the personnel involved in initiating and implementing this research should be commended for providing a model for digging deep into how people seek access to justice. Other Bangladesh-specific studies document NGO efficacy in other re- gards. One example is Hasle’s field research, which includes interviews with NU clients whose shalish agreements were arranged by NU-affiliated panels in 2002. NU’s follow-up records indicate that, of a sample of 37 selected by Hasle, 31 agreements were honored. In subsequently interviewing the clients, 34 Geirbo & Imam, supra note 12. 35 Asia Foundation, supra note 20. 36 Akmeemana, supra note 6. 37 Id. The World Bank Legal Review84 Hasle found that in all but one case the agreements were “more or less” hon- ored.38 Siddiqi’s research on both NU and ASK similarly document their strat- egies and efficacy.39 The findings of Hasle and Siddiqi are not inconsistent with that of Geirbo and Imam. Many of the disputes that Hasle scrutinized, for example, involved domestic violence that was reportedly halted through shalish interventions. In contrast, Geirbo and Imam researched dowry and related phenomena. The impact of modifying shalish might best be considered in the context of researching integrated legal services and/or development efforts that include but are not limited to improving how shalish operates. The Asia Foundation’s quantitative inquiries into legal services efficacy in Bangladesh, conducted un- der the auspices of a seven-country study of legal empowerment for the Asian Development Bank in 2000 –2001, found indications of poverty-alleviating and good-governance-promoting impact. More specifically, it compared control (that is, nonbeneficiary) populations with those belonging to either Banchte Shekha or Samata, an NGO that focuses on land advocacy, livelihood development, and access to government agricultural services.40 The findings indicate that the NGOs’ impact included restraining dowry; increasing successful citizen participation in joint actions and in influencing local government decisions; fostering positive community attitudes toward women’s rights and participation in governance; increasing use by the poor of government-managed lands that local elites otherwise seize; and dramatically reducing reliance on those elites for dispute resolution. The survey research found similar though more modest impact by MLAA in a number of these regards.41 The Foundation findings regarding dowry and other kinds of impact may not be totally consistent with the more qualitative inquiries of Geirbo and Imam. However, these two limited studies looked at different NGOs and communities. Expanded, rigorous research is called for. Implications for International Development Efforts to improve TJSs can be as much about social justice and governance as about dispute resolution. There is a tendency to view TJSs in terms of whether and how they settle disputes. The realities of shalish in Bangladesh contradict this view. Shalish in its traditional form often is a means of social control—of 38 Hasle, supra note 22. 39 D. M. Siddiqi, Paving the Way to Justice, supra note 18; Shalish and the Quest for Gender Justice, supra note 8; and Ain O Salish Kendra, supra note 27. 40 Stephen Golub & Kim McQuay, Legal Empowerment: Advancing Good Governance and Poverty Reduction, in Law and Policy Reform at the Asian Development Bank 135–49 (Asian Development Bank 2001). 41 Id. The Political Economy of Improving Traditional Justice Systems 85 men over women, of the relatively wealthy over the impoverished, and of religious and political leaders over their communities. Whether and to what extent these realities apply to traditional systems elsewhere is beyond the pur- view of this chapter. But the possibility that such systems manifest social con- trol—and the potential to advance social justice by modifying them—should not be overlooked. NGO engagement—and donor support for it—represents a potentially pro- ductive middle ground for efforts to improve TJSs. The experience of NGOs and their CBO partners in Bangladesh suggests that such organizations can productively work to keep the many advantages of TJSs while seeking to im- prove such systems. This effort represents a programmatic middle ground between simply leaving customary systems to their own devices and seek- ing to integrate them into the official state justice system. Pursuing this path does not preclude efforts to initiate or strengthen such integration. But given the fact that even after decades of existence, the state’s village court system remains largely moribund and in need of “activation” by a UNDP project, and given the degree to which that system likely lends itself to political influence and traditional attitudes, NGO engagement with shalish arguably compares favorably with reliance on that system. This is particularly salient in terms of improving dispute resolution and for the aforementioned considerations regarding social justice. It most likely makes sense to support similar civil society efforts elsewhere. However, the reality remains that many beneficiaries of NGO modifica- tion of TJSs may go from “worse to bad.” For example, a farmer may recoup only a portion of the crop proceeds rightly due him, but this is better than nothing. An impoverished woman who in a society that offers more economic opportunities might be able to escape a dysfunctional marriage may opt to re- turn to it by dint of NGO efforts. But this may be preferable to her alternatives outside the marriage: destitution, ostracization, homelessness, or malnourish- ment for herself or her children. On a more hopeful note, it should be borne in mind that community dy- namics in Bangladesh and elsewhere are not stagnant. The 2011 study on NU reached encouraging conclusions about the progress that the NGO and other women’s empowerment strategies are making.42 This author’s observation of NGO-modified shalish in the 1990s found a markedly higher level of engage- ment by women over the years. The possibility of litigation can be a powerful incentive for reaching and hon- oring a TJS agreement. The threat or fear of being taken to court by lawyers associated with an NGO can make an otherwise recalcitrant party cooperate with shalish. Especially when the judiciary is backlogged, corrupt, and oth- erwise dysfunctional, the expense of litigation and uncertainty of result can persuade a party to avoid becoming enmeshed in the formal wheels of justice. 42 Higgitt, supra note 23. The World Bank Legal Review86 Ironically, then, some NGO engagement with shalish implicitly weaves together the country’s nonstate and state legal systems. NGOs sometimes take cases straight to court if criminal or otherwise severe violations of a client’s rights are at play. More commonly, though, NGO engagement integrates the two systems by holding out the possibility of turning to the judiciary should shalish fail. On the other hand, under some circumstances, the possibility of going to court may not appeal to the NGO client or may not intimidate his or her op- ponent. Power imbalances are salient in this regard. An influential person may have resources to afford representation or significant sway in the community, making the client reluctant to go the judicial route. Are NGOs’ potential dual roles in shalish inappropriate? In many instances of shalish, NGOs do not take sides—their influence is on the process as a whole, rather than individual disputes. They convene and moderate in a neu- tral manner, rather than advocating and litigating in a partisan one. Still, the very fact that some convene sessions in response to one party’s request can make her/him a kind of client. And, as discussed above, when they raise the possibility of taking recalcitrant parties to court (and occasionally actually do so), they take a clear stand in their clients’ favor. Are these dual roles—neu- tral convener and partisan advocate—inappropriate? This raises issues of un- checked, unaccountable NGO influence. The issue may be less problematic than it seems, however. There certainly is a tension between the two roles. And there is room for abuse by NGO per- sonnel. But the balance in many disputes is typically tipped against women and other disadvantaged persons to begin with. There is no assurance that the police or courts redress power imbalances any better than NGOs do; in fact, there are indications to the contrary. Even if NGOs do not always act with ab- solute integrity or clarity in deciding whom they will support, their net impact is to make for fairer processes that can sometimes advance social justice. One mechanism for advancing NGO accountability could be the intro- duction or strengthening of systems by which the organization’s management obtains community feedback on whether and how its local personnel are act- ing responsibly. Although there are examples of such mechanisms in other countries—the dispute-resolution NGO Timap in Sierra Leone, for example— it is beyond the purview of this chapter to explore whether and to what extent similar approaches exist in Bangladesh. NGO authority lends weight to shalish. The credibility and influence of an NGO can encourage the parties to participate in shalish and to abide by the results. This influence can flow, for example, from an NGO generating donor resources or otherwise bringing benefits to a community that grants the or- ganization a measure of power. Or the NGO may be based in Dhaka or have influential government, donor, or civil society connections there, which sug- gests to many on a local level that it is a sophisticated, well-connected outfit. The Political Economy of Improving Traditional Justice Systems 87 The NGO can act as a countervailing influence to the corruption or politiciza- tion that may otherwise affect dispute resolution. Yet, the degree of this influence is limited in many areas. Local officials’ and party activists’ political power also generates resources, sometimes far beyond those of an NGO. In addition, they may have criminal or police links that allow them to bring force to bear or otherwise act with impunity. And certainly, not all influential persons in a community necessarily view NGO generation of resources or contacts as unmitigated goods. To the extent that NGOs do have considerable local influence, this has implications for the trade-off between approaches that prioritize their direct engagement with organizing shalish and those that concentrate on building up CBOs that can act independently. An argument for the former is that such engagement is necessary in most of Bangladesh for the foreseeable future, be- cause change is a slow process and countervailing, conservative social dynam- ics are too strong for CBOs to counter. The case for the latter approach is that it is ultimately more sustainable and that the NGO remains in the picture to pro- vide advice, training, legal assistance, and other support on an ongoing basis. The involvement of influential persons can be crucial for shalish. Influential persons on the NGO-modified shalish panels may combine with community mores to create pressure for both parties to reach and honor an agreement. In some cases, long-term NGO engagement in a community on a number of fronts may make such persons’ involvement less important. With its years of involvement with literacy, livelihoods, organizing, and other activities ben- efiting women, Banchte Shekha is a case in point. In some instances, however, NGOs may need to compromise with and try to co-opt influential figures, even if they tend to be conservative in their outlooks, rather than attempt to exclude them from shalish. Nevertheless, there is a line to walk in such efforts. NGOs are effective to the extent that they mitigate traditional shalishdars’ gender biases and other undue influences. The NGOs do this by helping women join the shalish panels and otherwise participate in the process. They also seek to involve commu- nity leaders and educated persons—teachers, for example—who may have broader perspectives. The integration of TJS modification with broader socioeconomic development work holds promise for affecting underlying community dynamics. Shalish is a product of underlying community dynamics. To the extent that improving shalish hinges on affecting those dynamics, it is important to see NGO engage- ment with shalish as part of an integrated approach to poverty alleviation, improved governance, and social change. This is not to discount the value of straightforward income generation, microfinance, and other operations. But attacking problems such as government corruption and gender inequity requires a long-term, multipronged approach. This view might seem to weigh in favor of simply supporting socioeco- nomic development NGOs for service delivery, with legal services NGOs The World Bank Legal Review88 playing supportive (though still crucial) back-up roles. But there are a few reasons to avoid drawing such a stark conclusion. First, insufficient data are available to support it. It would take years of rigorous research to make that judgment. Second, because legal-services NGOs are sophisticated in their le- gal knowledge and activities, they bring countervailing strengths to the table. Finally, and perhaps most significant, in many situations in Bangladesh the two kinds of NGOs are already cooperating in ways (such as training and other support by the legal services groups to the socioeconomic development ones) that produce integrated approaches. A cautious approach to strengthening village courts and other government dispute resolution mechanisms is advisable. MLAA’s interest in fortifying the village court system deserves respect, given its trailblazing role in community legal services in Bangladesh. UNDP’s initiative to work with these bodies also could bear fruit. Nevertheless, it is best to proceed cautiously with govern- ment-centered work in Bangladesh and other countries. NGO-assisted shalish merits a greater investment of donor resources. There are several reasons for such caution regarding village courts. First, the often corrupt and increasingly politicized nature of even the most basic local government functions, together with criminal links to politics, means that the village courts could be similarly infected. Conversely, there is also the more mundane constraint that Union Parishad chairpersons are often too busy to invest time and effort in participating in the process. Third, the prob- lematic history of efforts to energize the system should be taken into account. In addition, MLAA aside, not all NGOs see the village courts as a vehicle for sound dispute resolution. NGO-assisted shalish merits a greater investment of resources because, when integrated with socioeconomic development efforts, it has the poten- tial to modify underlying community dynamics in ways that reach beyond dispute resolution. The village courts could perpetuate such underlying dynamics to the disadvantage of women and the poor. In a related vein, al- though Disputes, Crimes and Pathways of Redress indicates that Union Parishad chairpersons play important dispute-resolution roles even outside the village courts structure, they may also perpetuate unjust community dynamics. 89 Intellectual Property Facilitating Technology Transfer for Development Roy F. WaldRon In 1994, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) established minimum standards for the regulation of many forms of intellectual property (IP), including the right of patent owners to pre- vent unauthorized persons from using a patented process and making, us- ing, offering for sale, selling, or importing a patented product or a product obtained directly by the patented process.1 All members of the World Trade Organization (WTO) were required to adopt TRIPS-compliant IP laws, with the exception of least-developed countries (LDCs), which have until 2016 to apply TRIPS provisions for pharmaceutical patents.2 The most comprehensive and influential international treaty on intellectual property rights, TRIPS is the global baseline for IP protection. To successfully attract imported technology and to build the necessary preconditions for adapting the imported technology, developing countries needed a supportive environment that would facilitate such transfers, which included strong intellectual property protection and enforcement. To a large extent, this was the rationale behind the negotiation of TRIPS: technology would flow to those developing countries that adopted strong intellectual property protection and enforcement. Developing countries view technology transfer as part of the bargain in which they agreed to protect intellectual property rights. TRIPS was crafted to create a common understanding of intellectual property rights globally and to provide its signatories (trading partners) with protections and certainties to ensure fair competition through a regime of IP rights. Articles 7 and 66.2 promote the practice of technology transfer, with the goal of ensuring that The author wishes to thank Sharon Reiche and Angela Wasunna, both of Pfizer, for their contributions in the preparation of this chapter. The views expressed are those of the author and do not reflect the policy or position of Pfizer Inc. 1 Agreement on Trade-Related Aspects of Intellectual Property Rights (Apr. 15, 1994), Mar- rakesh Agreement Establishing the World Trade Organization, Annex 1C, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), article 28 (hereinafter, TRIPS). 2 See World Trade Organization. Declaration on the TRIPS Agreement and Public Health, WT/ MIN(01)/DEC/2 (Nov. 20, 2001). The World Bank Legal Review90 technology holders are assured a favorable environment for investing in de- veloping countries—and transferring their technology.3 The objectives section of Article 7 states that the “protection and enforce- ment of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technol- ogy, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”4 The obligation for developed countries to provide incentives to enterprises and institutions to promote and encourage technol- ogy transfer to LDC members is found in Article 66.2.5 To ensure compliance, developed countries are required to submit reports on actions they have taken or plan to take in order to fulfill their commitments under this article.6 Despite the reference to technology transfer in Articles 7 and 66.2, TRIPS does not set out a universally recognized definition of technology transfer— leaving it open to legal and policy interpretation. There are many ways to transfer technology. Foreign direct investment, trade, and mobility of human resources are important sources of technology transfer and knowledge spill- overs. Imports and exports, scientific collaborations, knowledge-sharing ven- tures, and capacity building help disseminate technology information from one source to another.7 Proprietary knowledge may be revealed during licens- ing agreements and joint ventures with local partners, thus giving rise to the transfer of technology.8 Additionally, foreign direct investment, a significant indicator of economic development and attractiveness of an economy, leads to technology transfer when multinational enterprises transfer information to their subsidiaries, some of which has the potential to “leak” into the host econ- omy. The host country benefits via the experts, skills, and financial resources that are required to develop and make use of technology, as well as the de- velopment of human resources, higher wages, and improvement in corporate governance standards.9 3 TRIPS, supra note 1, Articles 7 and 66.2. 4 Id., at Article 7 (emphasis added). 5 Id., at Article 66.2 (“Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base”). 6 See World Trade Organization, Implementation of Article 66.2 of the TRIPS Agreement IP/C/28 (Feb. 20, 2003). 7 See Bernard Hoekman, Keith Maskus, & Kamal Saggi, Transfer of Technology to Developing Countries: Unilateral and Multilateral Policy Options, Institute of Behavioral Science, Research Program on Political and Economic Change, University of Colorado at Boulder Working Paper PEC2004-0003 (May 2004). 8 See Thomas Müller & Monika Schnitzer, Technology Transfer and Spillovers in International Joint Ventures, 68 J. Intl. Eco. 456–68 (2006). 9 See Maria Maher, Hans Christiansen, & Fabienne Fortanier, Growth, Technology Transfer and Foreign Direct Investment (OECD 2011) (prepared for the OECD Global Forum on Interna- tional Investment: New Horizons and Policy Challenges for Foreign Direct Investment in the Intellectual Property 91 During the 37th Session of the Working Group on Trade and Transfer of Technology (WGTTT),10 Francis Gurry, the director general of the World Intel- lectual Property Organization (WIPO), discussed his organization’s work on innovation and technology transfer. During his presentation, Gurry quoted Sir Francis Bacon’s dictum that “knowledge is power,” extrapolating to pro- pose that the sharing of “technological superiority” is a transfer of power.11 He considered what is required to entice companies to “do away with their competitive power” through technology transfer; in his view, the existence of suitable market conditions and market possibilities in the host country are vital for the transfer of technology to occur.12 The Role of Pharmaceutical Intellectual Property and Technology Transfer in Developing Countries Protection of Intellectual Property Is Critical As Gurry implied, the private sector considers a variety of factors when decid- ing whether to engage in technology transfer. To create the necessary condi- tions to foster confidence to invest in and export new technologies, as well as to develop new technologies in collaboration with developing countries, there must be strong IP protection and effective enforcement in those countries. As an intellectual property–dependent industry, the pharmaceutical industry did not initially engage in technology transfer in developing countries where IP protection was lacking. With TRIPS, a framework was created that encour- ages the rapid dissemination of ideas and efficient technology transfer, both of which are critical for technology-intensive, high-risk sectors. The pharmaceutical industry’s willingness to invest in critical value-added production and research and development (R&D) facilities in developing countries is directly linked to the strength and effectiveness of their IP systems. By safeguarding property against unauthorized commercial exploitation, effective IP protection provides predictability and, more important, the ability for a company to enter into license agreements and contracts. Because patents provide a legal basis for revealing proprietary information to subsidiaries and licensees, companies are less inclined to engage in technology transactions 21st Century, Mexico City, Nov. 26–27, 2001). 10 In 2001, during the WTO’s Ministerial Conference in Doha, Qatar, a number of developing countries proposed the establishment of a working group under the umbrella of the WTO General Council to study the relationship between international trade and technology trans- fer and to make recommendations on ways to increase the flow of technology to developing countries. The proposal was accepted, and the Working Group on Trade and Transfer of Technology (WGTTT) was established. See World Trade Organization, Ministerial Declara- tion WT/MIN(01)/DEC/1 (Nov. 20, 2001), article 37. 11 World Trade Organization, Working Group on Trade and Transfer of Technology. 37th Ses- sion, Notes on the Meeting of Nov. 3, 2011, WT/WGTTT/M/37 ( Jan. 13, 2012). 12 Id. The World Bank Legal Review92 without effective IP protection.13 IP protection helps pharmaceutical compa- nies justify investments in the inherently risky, costly, complex, and lengthy R&D and regulatory process, and ensure long-term foreign investor commit- ment to the local market. Technology transfers that follow in the wake of strong IP protection also help curtail “brain drain” by generating a more qualified and technically ad- vanced labor force that will be motivated to remain in their home countries. Brain drain is “the departure of educated or professional people from one country, economic sector, or field for another usually for better pay or living conditions.”14 When these skilled workers leave their home country in search of better opportunities in wealthier countries, the developing country fails to benefit from its considerable investment of public funds to educate the person who now brings his or her skills to the developed world.15 The loss of these workers negatively affects the developing country’s ability to absorb tech- nology transfer, because knowledge of scientific and technical information is necessary to accomplish technology transfer and advance development.16 By providing companies with increased incentives—such as a supportive IP en- vironment—to establish R&D facilities in developing countries, countries may entice local individuals to return or remain in country to capitalize on these opportunities. IP plays an essential role in technological development and dissemination and provides incentives for innovation in developing countries. Developing countries have the potential to attract not only the transfer of existing technol- ogy but also the transfer of new technologies through stronger patent rights.17 Although the degree to which a country benefits from IP depends on the coun- try’s relative strengths and socioeconomic characteristics, in countries with strong and effective IP regimes in place, there is a significant link between increased incentives for local innovation and the transfer of technologies that encourage local innovation and economic growth.18 By providing the right in- centives and removing barriers to the timely launch of innovative medicines, the patients and the private sector benefit. 13 See Hoekman, Maskus, & Saggi, supra note 7. 14 Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary. 15 See John Barton, New Trends in Technology Transfer: Implications for National and International Policy, International Centre for Trade and Sustainable Development Issue Paper No. 18 (Feb. 2007). 16 See Keith Maskus & Jerome Reichman ed., International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime 57 (Cambridge U. Press 2005). 17 See Walter G. Park & Douglas C. Lippoldt, Technology Transfer and the Economic Implications of the Strengthening of Intellectual Property Rights in Developing Countries, OECD Trade Policy Working Paper No. 62, 25 (2008). 18 Id., at 28. http://www.merriam-webster.com/dictionary Intellectual Property 93 Other Factors Conducive to Technology Transfer Strong and effective IP protection and enforcement, generally a prerequisite for any out-licensing or joint-venture decision, is only one of many factors in- fluencing a company’s decision to engage in technology transfer. Factors such as predictable regulatory standards, government commitment to education, a stable business environment, and alignment with the government’s economic development priorities play an essential role. A reliable and predictable registration process for pharmaceutical prod- ucts is important in providing motivations and incentives to engage in tech- nology transfer.19 A heavily regulated sector, the pharmaceutical industry must meet rigorous standards involving safety, quality, and efficacy in order to ensure the welfare of patients. Therefore, when relying on local production, companies frequently transfer their technology to entities based in part on their capacity to meet international quality standards. This in turn contributes to the development of the local pharmaceutical industry. The presence of a highly skilled workforce is vital to the development, application, utilization, and integration of new technology20 and makes the investment climate more attractive for foreign investors. Due to their depth of knowledge, these highly trained and educated workers are essential for technology transfer to occur. Through improvements in education and in the operating environment, developing countries are encouraged to promote the knowledge, experience, and skills necessary to enable workers to bring eco- nomic value and a competitive advantage to technical companies. These com- panies, in turn, provide education and training and may bring new informa- tion, skills, and technology to host nations. A country’s relative political, economic, and social stability will influence a company’s decision whether to transfer technology and is often considered a precondition for technology transfer to occur.21 Long periods of stability lead to stronger and more successful partnerships because stability lowers the risk of doing business in an unfamiliar environment and provides companies with increased confidence to implement long-term business strategies and assur- ance that their goals will be sustainable. Economic reforms and other efforts that promote trade, investment, nondiscriminatory policies, legal frameworks, and national infrastructure add to the attractiveness of a country with regard to technology transfer.22 As governments begin to understand the interrela- tionship between health care and economic outcomes, investment in health care systems and infrastructures will become a high priority.23 19 See Technology Transfer: A Collaborative Approach to Improve Global Health (IFPMA 2011). 20 See Barton, supra note 15. 21 See Technology Transfer, supra note 19. 22 See Maher, Christiansen, & Fortanier, supra note 9. 23 See Technology Transfer, supra note 19. The World Bank Legal Review94 By aligning themselves with a system that promotes technology trans- fer, developing countries are more likely to create medicines and technolo- gies that address their public health needs and enable local and regional solutions.24 Technology transfer arrangements can create strong alliances and collaborations that can be leveraged for long-term commercial and economic advantage. A supportive environment that encourages these transactions is a win-win situation for both the private sector and the developing country. The R&D activities of companies can enhance economic and social progress in developing countries. In turn, the development of a robust and dynamic inno- vation system in a developing country will expand commercial opportunities for companies. Examples of Technology Transfer in the Pharmaceutical Industry A goal of technology transfer, in the context of pharmaceuticals, is to promote access to new medicines and technologies for diseases that affect a local popu- lation. Access to medicines in developing countries is a high-priority issue in the global health sector, including for multinational pharmaceutical compa- nies.25 Technology transfer can directly affect research for neglected tropical diseases (NTDs) that primarily occur in developing countries. Many forms of collaboration and alliances have been developed to promote research and treatment of these diseases, and many include a technology transfer element.26 These types of arrangements, which are becoming more frequent, demon- strate that solutions to societal issues can be found through partnerships and the sharing of knowledge without undermining IP rights. Pfizer’s Research Partnership with Drugs for Neglected Diseases Initiative According to the World Health Organization (WHO), NTDs affect more than 1 billion people each year and are endemic in 149 countries.27 For NTDs such as leishmaniasis and human African trypanosomiasis (HAT), infections oc- cur among the poorest people in rural areas. To accelerate the elimination or 24 See Luis A. Salicrup & Lenka Fedorková, Challenges and Opportunities for Enhancing Biotech- nology and Technology Transfer in Developing Countries, 24 Biotech. Advances 69–79 (2006). 25 See Sofia Gruskin & Zyde Raad, Are Drug Companies Living Up to Their Human Rights Respon- sibilities? Moving toward Assessment (Harvard School of Public Health 2010); Carsten Fink, Intellectual Property and Public Health: An Overview of the Debate with a Focus on US Policy (World Bank Development Research Group 2008); Joyce Meng, Expanding Global Access: A Comparative Analysis of Pharmaceutical Corporate Social Responsibility Initiative (unpub- lished paper 2007); and Greg Martin et al., Balancing Intellectual Monopoly Privileges and the Need for Essential Medicines, 3(4) Globalization and Health (2007). 26 James T. Gathii, Approaches to Accessing Essential Medicines and the TRIPS Agreement, 15(2) Harv. J. L. & Tech. (2002). 27 See the WHO-sponsored Global Health Observatory website’s section Neglected Tropical Diseases, http://www.who.int.gho/ (accessed Apr. 2012); and World Health Organization, Accelerating Work to Overcome the Global Impact of Neglected Tropical Diseases: A Roadmap for Implementation (WHO 2012). http://www.who.int.gho/ Intellectual Property 95 control of these diseases, Pfizer entered into an agreement with Drugs for Ne- glected Diseases initiative (DNDi) in 2009, in which Pfizer agreed to provide DNDi with access to a Pfizer library of proprietary compounds to screen for new potential targets against leishmaniasis, Chagas disease, and HAT.28 This arrangement, which partners Pfizer’s research infrastructure with DNDi’s neglected disease expertise, maximizes the chances of identifying promis- ing starting points for drug discovery programs. Although Pfizer owns the IP on these compounds, any novel leads are a candidate for licensing agree- ments with regard to NTDs. The Pfizer-DNDi partnership demonstrates that the burden of finding solutions to diseases endemic to developing countries does not rest with a single entity. Through the transfer of technology, dupli- cation of research and repetitiveness of efforts are minimized, resulting in a more streamlined and focused approach that draws on the complementary strengths of each organization. The collaboration has identified promising leads, and DNDi will continue research, development, and commercialization based on these leads. GlaxoSmithKline’s Vaccine Development Initiative with the Oswaldo Cruz Foundation In 2009, GlaxoSmithKline (GSK) announced a partnership with the Oswaldo Cruz Foundation (Fiocruz) to develop and manufacture vaccines for public health needs in Brazil.29 The agreement created an R&D collaboration pro- gram at Fiocruz to develop a vaccine for dengue fever, a mosquito-borne viral infection that is the leading cause of serious illness and death among children in Asian and Latin American countries and for which no specific treatment is available.30 With approximately half of the world’s population at risk of contracting dengue fever,31 this joint R&D initiative will enhance Bra- zilian capacity to improve the health of patients by protecting them against this disease. GSK also partnered with Fiocruz in 2009 to provide access to the tech- nology behind GSK’s 10-valent conjugate vaccine for pediatric pneumococ- cal disease, or Synflorix.32 Under the agreement, GSK supplied Fiocruz with Synflorix until the technology transfer was complete; the vaccine has since been incorporated into Brazil’s national immunization program.33 In shar- ing knowledge and technology between the two organizations, scientists from GSK and Fiocruz work across facilities in Brazil and Belgium to protect 28 See Pfizer and DNDi Advancing International Research Efforts in the Fight against Neglected Tropi- cal Diseases, DNDi Press Release (Nov. 18, 2009). 29 See GSK and Brazil’s Fiocruz Form Partnership for New R&D Effort and Increased Vaccine Access, GSK Press Release (Aug. 17, 2009). 30 Id.; World Health Organization, Dengue and Severe Dengue, Fact Sheet No. 117 ( Jan. 2012). 31 Id. 32 See GSK and Brazil’s Fiocruz, supra note 29. 33 Id. The World Bank Legal Review96 children from diseases such as pneumonia, meningitis, and bacteremia.34 The two organizations extended their partnership in 2010, enabling scientists at Fiocruz and GSK’s Tres Cantos facility in Spain to share new ideas, know-how, and research on diseases such as malaria, tuberculosis, Chagas disease, and leishmaniasis.35 In collaborations such as these, the transfer of technology and expertise drives discovery and development efforts to produce new and innovative medicines to treat diseases that affect people in developing countries. Antonio de Pádua Risolia Barbosa, deputy director of production at the Immunobio- logical Technology Institute, or Bio-Manguinhos unit, of Fiocruz, states, “Be- sides our own innovation and development, we have partnerships with local and global organizations, and we use technology transfer to accelerate the viability of the products for the population.”36 WIPO Re:Search—Sharing Innovation in the Fight against NTDs Recognizing the need for progress in neglected disease research and under- standing that such research is the collective responsibility of the entire global health community, WIPO Re:Search was formed in 2011 through the efforts of several of the world’s leading pharmaceutical companies, WIPO, and BIO Ventures for Global Health (BVGH).37 WIPO Re:Search provides three services: • A comprehensive platform/database, hosted by WIPO, of patent and oth- er proprietary information (for example, clinical trial results, regulatory status) on compounds and technologies available for licensing for NTD research • A partnership hub, managed by BVGH, providing a forum where inter- ested parties can learn about available licensing opportunities, available funding for research, and networking opportunities in their research fields • A range of specific supporting activities, such as facilitating licensing agreements and dispute resolution38 WIPO Re:Search aims to promote the transfer of knowledge through the facilitation of nontraditional partnerships and by encouraging organiza- tions to share proprietary information publicly. WIPO Re:Search also offers researchers in developing countries access to research facilities and scientists 34 Id. 35 See GlaxoSmithKline and Fiocruz Extend Innovative Collaboration to Research and Develop New Medicines for Neglected Tropical Diseases, GSK Press Release (Nov. 12, 2010). 36 Patricia Van Arnum, Technology Transfer in Global Health Initiatives, 7(4) Pharmaceutical Tech- nology Sourcing and Management (Apr. 6, 2011). 37 See Leading Pharmaceutical Companies & Research Institutions Offer IP and Expertise for Use in Treating Neglected Tropical Diseases as Part of WIPO Re:Search, WIPO Press Release (Oct. 26, 2011). 38 See WIPO Re:Search website, www.wiporesearch.org (accessed Mar. 2012). www.wiporesearch.org Intellectual Property 97 working in leading pharmaceutical companies and laboratories, an important step in the technology transfer process. The structure of the consortium dem- onstrates that solutions to societal issues can be solved through partnerships without undermining IP. Users of WIPO Re:Search are granted royalty-free licenses to IP for re- search and development, anywhere in the world, of products and technolo- gies or services for the sole purpose of addressing public health needs for NTDs in LDCs. Users are also granted royalty-free licenses to make or have made such products, technologies, or services. These licenses also allow users to sell these products in LDCs royalty-free. Users are allowed to retain owner- ship of and apply for registration of IP as they deem fit, but are encouraged to license through WIPO Re:Search new IP rights generated under an agreement made pursuant to membership in the consortium.39 WIPO Re:Search leverages expertise to develop new products and tech- nologies, improves research productivity, allows the monetization of technol- ogies and IP assets that would otherwise go unused in the organization’s own business, and makes more efficient use of research investments by enhanc- ing the exchange of mutually beneficial knowledge. Through information- sharing consortiums such as WIPO Re:Search, products and technologies can be brought to market faster and more efficiently. The consortium has received the commitment of more than 50 private and public organizations dedicated to accelerating R&D for NTDs, malaria, and tuberculosis, including Pfizer, GlaxoSmithKline, AstraZeneca, DNDi, Fiocruz, Medicines for Malaria Ventures (MMV), PATH, and the Walter Reed Army Institute of Research (WRAIR).40 Although the commitment and willingness of these partners to transfer technology through WIPO Re:Search is a step toward addressing the R&D challenges that affect the developing world, sus- tained elimination of these diseases is possible only with a commitment by individual countries to ensure access to safe water, proper waste disposal and treatment, basic sanitation, and improved living conditions.41 ViiV Healthcare—Joint Venture between Pfizer and GSK According to the Joint United Nations Programme on HIV/AIDS (UNAIDS), the growth of the global AIDS epidemic appears to have stabilized, and the annual number of new HIV infections has been steadily declining.42 However, approximately 34 million people worldwide continue to live with HIV,43 and 39 See WIPO Re:Search: Sharing Innovation in the Fight against Neglected Tropical Diseases, Guiding Principles (May 2011), available at http://www.wiporesearch.org. 40 Id. 41 See World Health Organization, Accelerating Work to Overcome the Global Impact of Neglected Tropical Diseases, supra note 27. 42 See UNAIDS, Report on the Global AIDS Epidemic 16 (UNAIDS 2010). 43 See UNAIDS website, http://www.unaids.org (accessed Mar. 2012). http://www.wiporesearch.org http://www.unaids.org The World Bank Legal Review98 more than 7,000 people are newly infected every day.44 Discrimination and stigmatization remain, and many people continue to lack access to the antiret- roviral (ARV) medicines and health care support they require; only one-third of the 15 million people living with HIV in low- and middle-income countries who need treatment are receiving it.45 To further efforts to deliver advances in treatment and care for people liv- ing with HIV, Pfizer and GSK created a joint venture and established a new specialist HIV company, ViiV Healthcare, in 2009.46 ViiV Healthcare is focused solely on the research, development, and commercialization of HIV medicines and has a single, sustainable, not-for-profit price for each ARV that it makes available to a wide range of patients in LDCs and sub-Saharan Africa—a total of 69 countries, representing 80% of all people living with HIV/AIDS world- wide.47 ViiV Healthcare extends royalty-free voluntary licensing of its innova- tive drugs to generic manufacturers producing and distributing therapies to people living with HIV in LDCs, low-income countries, and all of sub-Saharan Africa. As of 2012, ViiV Healthcare had granted 11 voluntary licenses for its ARVs.48 By combining the research efforts and knowledge of Pfizer and GSK, ViiV Healthcare will achieve more for those whose lives are affected by HIV than ei- ther company could have achieved alone. Various ViiV initiatives, such as the ViiV Healthcare Effect, strive to strengthen education, support services, local health care capacity, and capabilities through education and collaboration.49 Pfizer’s Global Health Fellows Since 2003, more than 300 Pfizer colleagues have participated in the Global Health Fellows Program, an international corporate volunteer program that places Pfizer colleagues in short-term assignments with international devel- opment organizations in emerging markets.50 The objective of the program is to strengthen the ability of health care providers in these countries to care for their patients. Through Pfizer’s partnership with more than 40 organizations, colleagues are provided the opportunity to transfer their professional medical and business expertise to optimize local supply chains and business functions 44 See UNAIDS, 2011–2015 Strategy: Getting to Zero (UNAIDS 2010). 45 See UNAIDS, supra note 42, at 7. 46 See ViiV Healthcare Launches: A New Specialist HIV Company Dedicated to Delivering Advances in HIV Treatment and Care, ViiV press release (Nov. 3, 2009). 47 See ViiV Healthcare website, www.viivhealthcare.com (accessed Mar. 2012). 48 Id. 49 The ViiV Healthcare Effect is a portal that introduces the company’s approach to partner- ships and showcases best practices throughout the world. It provides users the opportunity to hear directly from people creating new solutions on the ground and to learn what has worked and how those efforts can be applied or expanded to support more communities. See ViiV Healthcare Effect website, www.viivhealthcareeffect.com (accessed Mar. 2012). 50 See Pfizer website, Global Health Fellows, available at http://www.pfizer.com/ghf (ac- cessed Mar. 2012). www.viivhealthcare.com www.viivhealthcareeffect.com http://www.pfizer.com/ghf Intellectual Property 99 and improve health prevention approaches. This program demonstrates that technology transfer encompasses expertise and technical skills. WHO’s TDR Career Development Fellowship Program In 1975, the Special Programme for Research and Training in Tropical Diseases (TDR), sponsored by the United Nations Children’s Fund (UNICEF), the United Nations Development Programme (UNDP), the World Bank, and WHO, was established as a scientific collaboration to coordinate, support, and influence global efforts to combat diseases affecting disadvantaged populations.51 TDR founded the Career Development Fellowship on Clinical Research & Development in 2009 with the support of the Bill & Melinda Gates Founda- tion. Researchers and public health professionals from disease-endemic coun- tries are awarded a 12-month training opportunity with pharmaceutical com- panies in order to receive specialized in-house training to acquire experience in clinical trial management, R&D project management, regulatory compli- ance, and good practices.52 By focusing on human resources development and capacity building, individual fellows are able to maintain their existing capa- bilities, strengthen their potential, and obtain new skills that are not normally taught in academic centers. Once the fellowship has been completed and the fellows return to their home countries, they have the opportunity to assume a leading role in the global effort on R&D, thereby enhancing the develop- ing country’s capacity for product development. In 2009, Pfizer hosted two developing-world clinical researchers as part of the TDR program.53 In 2011, Eisai, a major Japan-based pharmaceutical company, welcomed a TDR clinical research fellow whose goal is to build the health care capacity of developing countries; Eisai provides the fellow with the opportunity to learn about drug development from the US and Japanese perspective.54 Upon completion of the fellowship, the fellow returned to his home country, Colombia, to develop and arrange local and regional academic meetings to educate his counterparts in the study of tropical and neglected diseases.55 Looking toward the Future: Navigating an Evolving Landscape The world today is quite different than it was a few decades ago; trade, as well as scientific and education research systems, is highly globalized, and an 51 See World Health Organization website, TDR, available at http://www.who.int/tdr (ac- cessed Mar. 2012). 52 See International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) web- site, Capacity Building, http://www.ifpma.org/global-health/access/capacity-building .html (accessed Mar. 2012). 53 See Pfizer Corporate Responsibility Report (2009), available at http://www.pfizer.com/respon sibility (accessed Mar. 2012). 54 See Eisai Takes Second Clinical Research Fellow from Developing World, available at http://www .eisai.com (accessed Mar. 2012). 55 Id. http://www.who.int/tdr http://www.ifpma.org/global-health/access/capacity-building.html http://www.ifpma.org/global-health/access/capacity-building.html http://www.pfizer.com/responsibility http://www.eisai.com http://www.eisai.com http://www.pfizer.com/responsibility The World Bank Legal Review100 increasing number of developing countries are becoming more technologi- cally sophisticated. According to the World Bank’s Global Economic Prospects report, however, “the world economy has entered a very difficult phase characterized by significant downside risks and fragility,” with developing- country growth expected to decline to 5.4 percent and 6.0 percent versus 6.2 percent and 6.3 percent in June 2011 projections.56 Developing countries should be encouraged to identify new drivers of growth, one of which is technology transfer. Although technology transfer can be a time-consuming and complex process, given the right incentives and strong interest by developing countries in increasing their access to international technologies, companies from developed countries can assist LDCs in achiev- ing sustained economic change and growth in domestic productivity. Intel- lectual property, in particular, helps realize the model necessary to transfer technology and should be viewed as a vital tool that can aid in social and eco- nomic progress. As countries develop their own assets, they will have greater incentives to respect the IP framework and implement and enforce strong IP regimes that will aid in the facilitation of new types of positive partnerships. Although not all countries are equally prepared to integrate complex tech- nology into their production chains, the level of complexity on the technology transfer spectrum varies, beginning with knowledge and skills training as the most basic form. Therefore, the transfer of technology should be encouraged in all regions of the developing world, because building local capacity can play a major role in moving LDCs to the next stage of development and sig- nificantly affect the pace of innovation within these countries. 56 World Bank, Global Economic Prospects: Uncertainties and Vulnerabilities ( Jan. 2012). 101 Transforming through Transparency Opening Up the World Bank’s Sanctions Regime Conrad C. daly and Frank a. Fariello, Jr. The World Bank,1 whose mission it is to fight against global poverty,2 is one of the world’s premier international financial institutions.3 The Bank’s sanctions system emerges out of the Bank’s fiduciary obligation to ensure that the funds that its shareholders contribute are used with attention to economy and effi- ciency for their intended purposes.4 As fraud and corruption compromise the effectiveness of development projects5 and have a perverse and deleterious 1 In this chapter, “World Bank” is used to refer collectively to two institutions, the Interna- tional Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). IBRD began operations in 1947, with the purpose of providing loans to developing countries, while IDA was founded in 1960 to provide financing on concession- al terms to the poorest and least credit-worthy developing countries. The World Bank is part of the World Bank Group, a constellation of institutions including, in addition to IBRD and IDA, the International Finance Corporation (IFC), the Multilateral Investment Guar- antee Agency (MIGA), and the International Center for Settlement of Investment Disputes (ICSID). 2 See IBRD Articles of Agreement, Article I, Section i (Dec. 27, 1945) (“To assist in the recon- struction and development of territories of members”); and IDA Articles of Agreement, Ar- ticle I (“The purposes of the Association are to promote economic development, increase productivity and thus raise standards of living in the less-developed areas of the world in- cluded within the Association’s membership”). The first president of the World Bank, Eu- gene Meyer, highlighted the place of “the economic development of the world as a whole. . . . [For] economic distress is a prime breeder of war.” IBRD, First Annual Meeting of the Board of Governors: Proceedings and Related Documents, 15 –16 (World Bank 1946). 3 Anne-Marie Leroy & Frank Fariello, The World Bank Group Sanctions Process and Its Recent Reforms 1 (World Bank 2012). 4 See IBRD Articles of Agreement, Article III, Section 5(b) (“The Bank shall make arrangements to ensure that the proceeds of any loan are used only for the purposes for which the loan was granted, with due attention to considerations of economy and efficiency and without regard to political or other non-economic influences or considerations”); and IDA Articles of Agreement, Article V, Section 6 (“The Association and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the politi- cal character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in this Agreement”). See also World Bank Sanctions Procedures (as adopted Apr. 15, 2012) (hereinafter, Sanctions Procedures), Article 1.01(a). 5 See, for example, News & Broadcast, World Bank, Disclosure of Assets and Income by Public Officials Is Crucial to Curbing Corruption Finds New StAR Study, Press Release No. 2012/360/ FPD (Mar. 28, 2012), available at http://go.worldbank.org/6JFJF7TXA0; Stuart Yikona et al., Ill-Gotten Money and the Economy, Experiences from Malawi and Namibia (World Bank 2011), available at http://go.worldbank.org/0PHO7X3QA0. See also C. M. Matthews, Infrastruc- ture Corruption Top of Mind for Public, Private Sectors, Wall St. J. (Apr. 19, 2012), available at http://blogs.wsj.com/corruption-currents/2012/04/19/infrastructure-corruption-top http://go.worldbank.org/6JFJF7TXA0 http://go.worldbank.org/0PHO7X3QA0 http://blogs.wsj.com/corruption-currents/2012/04/19/infrastructure-corruption-top-of-mind-for-public-private-sectors/ The World Bank Legal Review102 effect on systems and societies,6 they are the target of the Bank’s sanctions system. This chapter considers the Bank’s recent commitment to opening up its sanctions regime and to making that system more transparent and account- able, highlighting the particularly innovative manner in which the Bank has opened up its system. The desired end of this opening up is a sanctions regime that inspires confidence through the witnessing of the robust deliberative pro- cess that underlies it, the promotion of good governance at large, and an in- crease in stakeholder confidence. Opening up the process both encourages contractors to participate in Bank-financed projects and also garners further support for the fight against poverty by profiting those who play by the rules. The result is a system with significant due process protections that empowers stakeholders at all levels. This chapter is divided into four parts: • First, this chapter offers an introduction to the nature of the Bank’s sanc- tions regime, highlighting the particular challenges that it faces.7 • Second, it presents an outline of the development of the sanctions regime, focusing on the system’s rapid progression since its foundation in 1996. • Third, it addresses the most recent changes to the system. • Fourth, it examines how this progression is in accord with the Bank’s mis- sion of establishing law and justice as developmental ends in and of them- selves, with a special emphasis on transparency and accountability for the sake of improving both governance and stakeholder ownership and empowerment. The chapter concludes with remarks on the relationship between law and development and what that relationship means for the Bank as it seeks to em- power those for whom it works as well as to give them a sense of confidence in the Bank and the Bank’s systems as a whole. Introduction to the Bank’s Sanctions Regime Like other international financial institutions,8 the World Bank has tradi- tionally considered its decisions to exclude an entity or individual from work- -of-mind-for-public-private-sectors/; David Chaikin & J. C. Sharman, Corruption and Money Laundering: A Symbiotic Relationship (Palgrave Series on Asian Governance 2009); Dayanath Jayasuriya, Anti-Money Laundering Efforts, Stock Market Operations and Good Governance, 1 Qualitative Research in Financial Markets 46 –58 (2009). 6 See id. See also James D. Wolfensohn, People and Development: Address to the Board of Gover- nors at the Annual Meetings of the World Bank and the International Monetary Fund, in Voice for the World’s Poor: Selected Speeches and Writings of World Bank President James D. Wolfensohn, 1995–2005 50 (World Bank 2005). 7 For a detailed discussion of the historical system’s evolution, see Leroy & Fariello, supra note 3. 8 Consider, for instance, the other multilateral development banks (MDBs), discussed further on. See infra note 39. The same is true for many other international organizations, such as the United Nations and the North Atlantic Treaty Organization. http://blogs.wsj.com/corruption-currents/2012/04/19/infrastructure-corruption-top-of-mind-for-public-private-sectors/ Transforming through Transparency 103 ing on Bank-financed projects or programs as a business decision and has thus subjected those decisions to an administrative regime.9 That process of ex- clusion for corrupt or fraudulent behavior is known as “debarment.”10 The principal stated goal of World Bank Group sanctions proceedings is to protect the World Bank Group’s funds and not to “punish” respondents: the sanc- tions imposed do not entail any form of physical coercion, nor even an obliga- tion to repay money to the Bank.11 From such a perspective, relatively little due process12 is due to respondents as compared with during civil or criminal proceedings.13 There are, however, several factors that complicate the classification of such actions as otherwise-banal business decisions. First, with aggregate new lending commitments of approximately US$43 billion, aggregate outstanding liabilities of US$258 billion, and assets of US$314 billion for fiscal year 2011,14 and as the Bank directly or indirectly employs tens of thousands of people,15 9 See Leroy & Fariello, supra note 3. This model has not gone without criticism. See, for ex- ample, Alnoor Ebrhaim, The World Bank Must Fix Its Business Model, Financial Times (Oct. 5, 2009). 10 See Sanctions Procedures, supra note 4. 11 The Bank’s system allows for five different sanctions—reprimand, conditional nondebar- ment, debarment, debarment with conditional release, and restitution or remedy—only the last of which imposes the obligation of financial reparation. Sanctions Procedures, supra note 4, at Article 9. Of course, these stand apart from the typical contractual remedies available to the Bank under the general conditions. 12 Due process is the legal requirement that the sovereign respect the legal rights that are owed to persons; it is a “central promise [of] assurance that . . . government must operate within the law (‘legality’) and provide fair procedures.” Legal Information Institute (LII), Cornell University, at http://www.law.cornell.edu/wex/due_process. The principle ensures a bal- ancing of sovereign power (or the law of the land), on the one hand, and the rights of the individual, on the other. See, for example, In re Winship, 397 U.S. 358, 382 (1970) ( J. Black, dissenting). 13 As a body of public law, administrative law addresses and controls how government and its agencies govern. See William F. Fox, Jr., Understanding Administrative Law (4th ed., Lexis 2000). Generally, fewer rights are afforded to respondents in an administrative system than in civil or (especially) criminal proceedings; in administrative proceedings, the interests and prerogatives of the sovereign and the invocation of its discretionary powers are at stake. 14 See Moody’s Investors Service Credit Analysis: IBRD (World Bank) (Feb. 27, 2012), available at http://treasury.worldbank.org/cmd/pdf/Moodys_IBRD_Report_2012.pdf. The Bank also provides financing in the form of development policy loans (DPLs), which provide bud- get support and other unlinked financing against achievement of defined policy measures rather than to finance specific expenditures. The Bank’s sanctions regime does not extend to DPLs because it is not possible to trace the use of loan proceeds. This approach (or the lack of one) has come under increasing criticism. See, for example, Independent Advisory Board (IAB), 2010 Annual Report 11-12 ( Jan. 2011), available at http://go.worldbank.org /S262CF3KD0 (acknowledging the “significant challenges and difficulties concerning efforts to investigate the extent, if any, of corrupt behaviors that may arise in connection with the implementation of [DPLs],” but encouraging management “to consider ways and means of sharpening the criteria for [DPLs]”). It bears noting that the effect of cross-debarment renders the figures—and the effect of debarment—even greater. See infra note 40 et seq. and accompanying text. 15 Moisés Naím & Uri Dadush, Dr. Kim Comes to Washington, Huffington Post (Apr. 4, 2012), avail- able at http://www.huffingtonpost.com/moises-naim/kim-world-bank_b_1396618.html. http://www.law.cornell.edu/wex/due_process http://treasury.worldbank.org/cmd/pdf/Moodys_IBRD_Report_2012.pdf http://go.worldbank.org/S262CF3KD0 http://www.huffingtonpost.com/moises-naim/kim-world-bank_b_1396618.html http://go.worldbank.org/S262CF3KD0 The World Bank Legal Review104 the stakes of exclusion from Bank-financed projects are substantially higher than those surrounding even the most significant business decisions made by the largest private corporations.16 Moreover, debarment not only entails substantial financial consequences but also causes considerable public noto- riety and reputational damage.17 Second, debarring an entity has significant market effects, especially when a limited number of entities are capable of per- forming highly specialized work.18 Third, the Bank’s decision to debar is not one that affects those entities with which the Bank itself would otherwise work, but rather affects the pool of entities from which the borrower might choose to work; that is, the Bank, on the basis of providing project financing, unilaterally decides for the borrowing party that certain entities are not to be dealt with.19 16 That is to say, the economic implications of exclusion from the possibility of participating in the large potential market of World Bank Group–financed projects are greater than those of being excluded from the activities of any one private actor. For instance, to make a mon- etary comparison, the market value of Apple in 2011, the world’s most valuable company, is around US$337 million, with 12-month sales surpassing the US$100 billion mark. Scott DeCarlo, The World’s 25 Most Valuable Companies: Apple Is Now on Top, Forbes (Aug. 11, 2011), available at http://www.forbes.com/sites/scottdecarlo/2011/08/11/the-worlds-25-most -valuable-companies-apple-is-now-on-top/. 17 Consider, for instance, the press coverage surrounding the sanctioning of Siemens. See, for example, Siemens Selects Initial Projects for US$100 million Integrity Initiative, Siemens AG, Ref. No. AXX20101225e (Dec. 9, 2010), available at http://www.siemens.com/press/en /pressrelease/?press=/en/pressrelease/2010/corporate_communication/axx20101225.htm; Vanessa Fuhrmans, Siemens Settles with World Bank on Bribes, Wall St. J. ( Jul. 3, 2009), available at http://online.wsj.com/article/SB124655953719287521.html. 18 In this regard, consider, for instance, the debarment of a Siemens subsidiary. See News & Broadcast, World Bank, World Bank Group Debars Limited Liability Company Siemens (OOO Siemens) for Engaging in Fraud and Corruption in a World Bank–Financed Project in Rus- sia, Press Release No. 2009/168/EXC (Nov. 30, 2009), available at http://go.worldbank .org/VZ1113XEG0. In addition to having a subsidiary entity debarred, Siemens AG paid US$100 million to fight corruption as part of a settlement with the World Bank Group. See News & Broadcast, World Bank, Siemens to Pay $100m to Fight Corruption as Part of World Bank Group Settlement, Press Release No. 2009/001/EXT ( Jul. 2, 2009), available at http:// go.worldbank.org/WXRNSDVI40. Siemens, France’s Alstom, and Canada’s Bombardier are the world’s big-three passenger train manufacturers. See, for example, Robert Wright, China to Loosen West’s Grip on Rail Sector, Financial Times (Sept. 13, 2010), available at http://www .ft.com/intl/cms/s/0/83d7e478-bec0-11df-a755-00144feab49a.html#axzz1sKPOrVA4. For the argument that certain private contractors may be too big to debar, see Drury D. Steven & Nicholas J. Wagoner, FCPA Sanctions: Too Big to Debar? 80 Fordham L. Rev. 775 (2011). See also FCPA Compliance and Ethics Blog, Is Debarment a Viable FCPA Enforcement Option? (Apr. 19, 2011), available at http://tfoxlaw.wordpress.com/2011/04/19/is-debarment-a-viable-fcpa -enforcement-option/. 19 Others, for reasons such as the absence of privity and the substantial influence that the Bank is capable of exerting, have described the Bank’s behavior as “imperialism” or “neocolonial- ism.” Catherine Caufield, Masters of Illusion: The World Bank and the Poverty of Nations (Henry Holt & Co. 1996); Jonathan Cahn, Challenging the New Imperial Authority: The World Bank and the Democratization of Development, 6 Harv. Hum. Rights J. 159 (1993); Steve Berkman, The World Bank and the Gods of Lending (Kumarian Press 2008); Payal Parekh & Oren Weinrib, Why the Developing World Hates the World Bank, 122 The Tech 5 (Mar. 12, 2002), available at http:// tech.mit.edu/V122/PDF/N11.pdf. http://www.forbes.com/sites/scottdecarlo/2011/08/11/the-worlds-25-most-valuable-companies-apple-is-now-on-top/ http://www.siemens.com/press/en/pressrelease/?press=/en/pressrelease/2010/corporate_communication/axx20101225.htm http://online.wsj.com/article/SB124655953719287521.html http://go.worldbank.org/VZ1113XEG0 http://go.worldbank.org/VZ1113XEG0 http://www.ft.com/intl/cms/s/0/83d7e478-bec0-11df-a755-00144feab49a.html#axzz1sKPOrVA4 http://www.ft.com/intl/cms/s/0/83d7e478-bec0-11df-a755-00144feab49a.html#axzz1sKPOrVA4 http://tfoxlaw.wordpress.com/2011/04/19/is-debarment-a-viable-fcpa-enforcement-option/ http://www.forbes.com/sites/scottdecarlo/2011/08/11/the-worlds-25-most-valuable-companies-apple-is-now-on-top/ http://www.siemens.com/press/en/pressrelease/?press=/en/pressrelease/2010/corporate_communication/axx20101225.htm http://go.worldbank.org/WXRNSDVI40 http://go.worldbank.org/WXRNSDVI40 http://tfoxlaw.wordpress.com/2011/04/19/is-debarment-a-viable-fcpa-enforcement-option/ http://tech.mit.edu/V122/PDF/N11.pdf http://tech.mit.edu/V122/PDF/N11.pdf Transforming through Transparency 105 Thus, Bank operational debarments—taken in the absence of any privity—are more than mere run-of-the-mill business decisions about, say, buying pens or paper.20 Although none of the aforementioned factors necessarily takes the Bank’s regime out of the realm of administrative law, the Bank, in an effort to lead by example, and considering law and justice as developmental ends in and of themselves, affords respondents additional due process protections, more than what are usually required under the general principles of administra- tive law.21 Arguments have been made that the World Bank Group’s system ought to develop its legal regime based on, alternatively, theories of global constitutionalism,22 the exercise of international public authority,23 or the emerging global administrative law (GAL) principles.24 The Bank has taken a more open-ended approach by working toward a quasi-judicial model in- spired by various sources of law from around the world. Such an innovative approach results in a sui generis form that is not dominated by any single tradition (neither common law nor civil law) or by any one national system. In pursuing the objectives of effectiveness and efficiency, the Bank has been equally attentive to ensuring that the process reflects certain fundamental 20 It is worth noting that the World Bank Group maintains a separate sanctions system for its own corporate procurement. See World Bank Vendor Eligibility Policy (as adopted Jun. 18, 2010), available at http://go.worldbank.org/W40WJB5AA0. To be deemed a re- sponsible vendor with whom the World Bank Group will conduct business, a vendor must meet a range of standards, most of which relate to the financial and organizational capacity of the vendor to deliver or perform the services, as well as its track record in not having seri- ously violated the terms of a World Bank Group contract in the past. In addition, a vendor must not have committed “any act or offense indicating a lack of integrity or honesty that seriously and directly affects [its] present responsibility . . . , including fraudulent, corrupt, collusive, coercive, or obstructive practices.” 21 “‘Respondent’ means an entity or individual alleged to have engaged in a Sanctionable Prac- tice and who has been designated as such in a Notice.” Sanctions Procedures, supra note 4, at Article 1.02. 22 See Jan Klabbers, Anne Petters, & Geir Ulfstein, The Constitutionalization of International Law (Oxford U. Press 2009). 23 See Armin von Bogdandy, Philipp Dann, & Matthias Goldmann, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 German L.J. 1375, 1377 (2008) (“The legal framework of governance activities of international institu- tions should be conceived of as international institutional law, and enriched by a public law perspective, i.e. with constitutional sensibility and openness for comparative insights from administrative legal thinking”), and the other articles in the same special issue on public authority and international institutions. 24 See Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Admin- istrative Law, 16 L. & Contemp. Probs. 15, 17 (2005) (defining global administrative law “as comprising the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in par- ticular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make”), and the other articles in the same symposium. See also articles in the symposium Global Administrative Law in the Operations of International Organizations in 6 Intl. Org. L. Rev. (2009); Pascale Hélène Dubois & Aileen Elizabeth Nowlan, Global Administrative Law and the Legitimacy of Sanctions Regimes in International Law, 36 Yale J. Intl. L. 15–25 (2010). http://go.worldbank.org/W40WJB5AA0 The World Bank Legal Review106 principles and values associated with the rule of law from around the world.25 In so doing, it is particularly mindful of the varied—and ever-evolving—le- gal traditions and conceptions of its members.26 Such a creative approach gives the Bank’s system a certain formality while allowing it to retain a nec- essary flexibility.27 That flexibility is particularly useful in dealing with par- ties coming from different developmental backgrounds. The unique mix of formality and flexibility is a development of the Bank’s legal heritage that goes beyond traditional understandings of either civil or common law.28 This legal innovation—with its sensitivity to culture and tradition and its imple- mentation of robust due process guarantees—is particularly important in a world where international organizations (IOs) are increasingly helping to form international law.29 The system’s evolution, with its progressive permutations and additions, has made the regime increasingly robust and juridical. Although it was not the intention of the framers that the Bank’s system be overly “legalistic,”30 such an evolution is an almost-inevitable by-product of a two-tiered adversarial process that allows for legal representation and, more recently, publication of reasoned decision making.31 The Bank has instituted these structural changes in the spirit of due process and of rule of law. Although this judicialization has had the unintended consequence of increasing the system’s intricacy—a 25 Leroy & Fariello, supra note 3, at 6–7. Elements of the rule of law are embedded in the writ- ings of modern and Western political philosophers such as Locke, Montesquieu, Ricardo, and Weber. More broadly, a concept of the rule of law is inherent in natural law ideals as expressed by Aristotle and Aquinas, as well as in religiously inspired legal systems such as Islamic sharia. As far back as the third century B.C., the Chinese legal thinker Han Fei pro- moted the view that laws had to be predictable, public, and consistent. 26 See supra note 25 and accompanying text. See Karen Gottschang Turner, Rule of Law, in The Oxford International Encyclopedia of Legal History vol. V, 164 (Stanley N. Katz ed., Oxford U. Press 2009). 27 For an instance of such duality considered in the US national context of prosecution and prosecutorial discretion, see Nathan Piwowarski, Prosecutorial Discretion and the Rule of Law: Is It Time for a Little Formalism? (Or, Mr. Prosecutor: How Formalists Learned to Stop Worrying and Love Discretion), King Scholar Senior Seminar Paper, Michigan State University College of Law (2007), available at http://www.law.msu.edu/king/2007/index.html. 28 Robert D. Cooter & Hans-Bernd Schafer, Solomon’s Knot: How Law Can End the Poverty of Na- tions 94–95 (Princeton U. Press 2012). 29 See, for example, José E. Alarez, International Organizations as Law-Makers (Oxford U. Press 2005). 30 See, for example, Dick Thornburgh, Ronald L. Gainer, & Cuyler H. Walker, Report Concern- ing the Debarment Processes of the World Bank (Aug. 14, 2002 [Rev.]), available at http:// go.worldbank.org/1O93GTKH40 (hereinafter, Second Thornburgh Report) at 27 (“[I]t should be kept in mind that the Sanctions Committee procedures are designed and intended to be very informal and avoid unnecessary legal complexities. For that reason, circumspec- tion should be employed in evaluating former judges and litigating attorneys—persons whose careers have been steeped in the mastery of formal hearing procedures of particular national jurisdictions and who are thus more likely than others (for example those whose primary experience has been with informal arbitration proceedings or administrative pro- ceedings) to exhibit a penchant for procedural formality and rigidity”). 31 Leroy & Fariello, supra note 3, at 28. http://www.law.msu.edu/king/2007/index.html http://go.worldbank.org/1O93GTKH40 http://go.worldbank.org/1O93GTKH40 Transforming through Transparency 107 weight that weighs most heavily on lesser-capacity respondents—that same augmentation of due process protections has the benefit of assuring all re- spondents ever-greater protection, therein helping to ensure that respondents have an opportunity to have their full and fair day in court. Respondents need not fear lengthy proceedings; despite its evolution toward greater due pro- cess, the Bank’s sanctions process remains far more expeditious than national court systems.32 The Innovative History of the Bank’s Ever-Expanding Sanctions Regime Year by year, the Bank’s system has become more expansive and innovative, providing an ever more complete means of protecting the Bank and the projects that it finances from the deleterious effects of fraud and corruption. Initiated in 1996,33 the implementation of the Bank’s sanctions regime coincided with an increased focus on corruption as a development issue.34 Since its inception, the Bank’s sanctions regime has grown dramatically: in 1999, only corrup- tion, fraud, and collusion were referred to in the Procurement and Consultant Guidelines.35 In 2004, “coercive practice” was added to this list of “sanction- able practices,” therein prohibiting the threatening of competing bidders, gov- ernment officials, or others.36 In 2006, a fifth rubric of “obstructive practices” was added to the guidelines and targets actions that impede an investigation, such as destroying evidence or threatening witnesses.37 Moreover, the regime was expanded beyond fraud and corruption in the limited area of the procure- ment context alone to cover all fraud and corruption that may occur in connec- tion with the use of Bank financing in the preparation and/or implementation of Bank-financed projects at large.38 These reforms were accompanied by new 32 On average, a sanctions case (excluding investigation) takes approximately one year. When a case is not appealed to the Sanctions Board, the median time for sanctions proceedings is about six months. 33 Second Thornburgh Report, supra note 30, at 12. 34 See Leroy & Fariello, supra note 3, at 9. 35 All current and historical guidelines are available at the World Bank website. See World Bank, Guidelines: Selection and Employment of Consultants by World Bank Borrowers, sec- tion 1.22 (Oct. 1, 2006), available at http://go.worldbank.org/U9IPSLUDC0 (hereinafter, Consultant Guidelines); World Bank, Guidelines: Procurement under IBRD Loans and IDA Credits, section 1.14 (May 1, 2010), available at http://go.worldbank.org/1KKD1KNT40 (hereinafter, Procurement Guidelines). 36 Reform of the World Bank’s Sanctions Process ( Jun. 28, 2004), Policies Guiding INT’s Work, World Bank, available at http://go.worldbank.org/VVY6KYS720. 37 Expansion of Sanction beyond Procurement and Sanctioning of Obstructive Practices ( Jul. 28, 2006), Policies Guiding INT’s Work, World Bank, available at http://go.worldbank.org /VVY6KYS720. 38 See President’s Memorandum to the Executive Directors, Sanctions Reform: Expansion of Sanc- tions Regime beyond Procurement and Sanctioning of Obstructive Practices ( Jun. 12, 2006). Con- currently, amended sanctions procedures were adopted, reflecting both the 2004 and the 2006 rounds of sanctions reform. http://go.worldbank.org/U9IPSLUDC0 http://go.worldbank.org/1KKD1KNT40 http://go.worldbank.org/VVY6KYS720 http://go.worldbank.org/VVY6KYS720 http://go.worldbank.org/VVY6KYS720 The World Bank Legal Review108 harmonized definitions of the first four sanctionable practices, as used by all of the five major multilateral development banks (MDBs).39 In 2010, in a move that further expanded the system, the Bank signed a cross-debarment accord with the other four major MDBs,40 allowing for the signatories to cross-debar firms and individuals found to have engaged in wrongdoing in MDB-financed development projects.41 Not only did this agreement establish the first four sanctionable practices as common among the five MDBs (as already noted); it also codified a common standard of proof, namely, the “more likely than not”42 standard.43 The Bank is constantly monitoring the implementation of its sanctions framework with a view to improving its effectiveness and efficiency, in dia- logue with all internal actors as well as with the other major MDBs and other IOs. Similarly, the Bank is always looking for inspiration to improve transpar- ency and fairness. This chronological development has been presented without any reference to the infrastructural developments; a few notes ought to be made. The sys- tem began in 1998 with relatively few structural due process checks and bal- 39 See Uniform Framework for Preventing and Combating Fraud and Corruption, Interna- tional Financial Institutions Anti-corruption Task Force (Sep. 2006), available at http:// go.worldbank.org/VVY6KYS720. The agreement includes the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the Inter-American Development Bank Group, and the World Bank Group. 40 See News & Broadcast, World Bank, Cross-Debarment Accord Steps Up Fight against Corrup- tion (Apr. 9, 2010), available at http://go.worldbank.org/B699B73Q00. See also Integrity Vice Presidency Annual Report, Fiscal Year 2008: Protecting Development’s Potential 2 (World Bank INT 2009), available at http://go.worldbank.org/T40HHT3RF0. 41 See World Bank, Cross-Debarment Accord Steps Up Fight against Corruption, supra note 40; In- tegrity Vice Presidency Annual Report, Fiscal Year 2008, supra note 40. See also Stephen S. Zim- mermann & Frank A. Fariello, Coordinating the Fight against Fraud and Corruption: Agreement on Cross-Debarment among Multilateral Development Banks, in International Financial Institutions and Global Legal Governance (Hassane Cissé, Daniel D. Bradlow, & Benedict Kingsbury ed., World Bank 2011). Cross-debarment is permitted for any of the first four sanctionable prac- tices, namely, corruption, fraud, collusion, and coercive practices. 42 See Sanctions Procedures, supra note 4, at Article 8.01(b)(i). See also Anne-Marie Leroy, Ad- visory Opinion on Certain Issues Arising in Connection with Recent Sanctions Cases, No. 2010/1 (Nov. 15, 2010), paragraphs 45–51, in the UN Juridical Yearbook 2012 (“The standard of proof is predicated on the same basic considerations that underlay the omission of an explicit mens rea requirement from most of the definitions, namely the administrative nature of the proceedings and INT’s lack of investigative tools. This standard of proof is understood as being equivalent to the ‘preponderance of the evidence,’ essentially the standard to be found in civil cases in most jurisdictions. When this nomenclature was adopted in 2004, it was felt that the phrase ‘more likely than not’ would be more understandable to non-lawyers. How- ever, the ‘more than 50%’ approach may not be the most useful or appropriate either at the EO stage or at the Sanctions Board stage. Firstly, it suggests a formulaic approach to the evi- dence while . . . the Sanctions Procedures calls for a discretionary approach. [Secondly . . .], the EO’s assessment of the evidence requires special considerations, given that he or she is looking at only one side of the case. The EO is actually charged with assessing the sufficiency of the evidence”), 43 World Bank, Cross-Debarment Accord Steps Up Fight against Corruption, supra note 40. http://go.worldbank.org/VVY6KYS720 http://go.worldbank.org/B699B73Q00 http://go.worldbank.org/T40HHT3RF0.41 http://go.worldbank.org/VVY6KYS720 Transforming through Transparency 109 ances; an entirely internal sanctions committee reviewed allegations of fraud and corruption and recommended an appropriate sanction to the president of the Bank, who made the actual decision.44 In 2001, a nascent yet independent prosecutorial and investigatory branch, the Integrity Vice Presidency (INT), was established, therein consolidating functions that had been spread across various units of the Bank.45 INT was one of the first specialized units created specifically to address fraud and corruption allegations and integrity issues at an international level.46 The system evolved into its current two-tiered process in 2007, with an initial determination made by the Evaluation and Suspen- sion Officer (EO) and with the possibility of a de novo review by the World Bank Sanctions Board.47 Further modifications were made to assure the inde- pendence and adequacy of the various actors,48 and measures for controlling lingering vulnerabilities at either end of the sanctions process were added.49 Additional added features include the means of sanctioning corporate affili- ates50 and the possibility of resolving disputes through settlement (termed as “negotiated resolution agreements” and “deferral agreements,” depending on the type of settlement).51 Given that the regime is inherently an administrative one, the Bank’s sanctions system has evolved into one that affords respondents substantial 44 See Leroy & Fariello, supra note 3, at 10. See also Ko-Yung Tung, General Counsel, World Bank, The World Bank’s Institutional Framework for Combating Fraud and Corruption, remarks delivered at the Seminar on Monetary and Financial Law International Monetary Fund (May 8, 2002). 45 The then Department of Institutional Integrity was given institutional independence and reported directly to the president. See, for example, Ko-Yung Tung, remarks delivered at the Seminar on Monetary and Financial Law International Monetary Fund (May 8, 2002). 46 Although the UN Office of Internal Oversight Services was created somewhat earlier (1994), that office has a much more general mandate than does INT. See UN Office of Internal Over- sight Services at http://www.un.org/Depts/oios/. 47 See Leroy & Fariello, supra note 3, at 10–11. 48 See, for example, Paul A. Volcker et al., Independent Panel Review of World Bank Group Depart- ment of Institutional Integrity (Sep. 13, 2007) (recommending, among other things, that INT be elevated to the status of a vice presidency with reporting lines directly to the president, as well as the creation of the external Independent Advisory Board to facilitate oversight of INT). 49 Inefficiencies and lingering vulnerabilities undermined the effectiveness of the system, both at the “front end” (for example, firms under investigation remain eligible to bid for Bank- financed contracts) and at the “back end” (for example, sanctioned firms were normally re- leased from debarment without any demonstration of rehabilitation). These weaknesses led to the implementation of, first, in May 2009, the possibility for INT to request early tempo- rary sanctions for the time prior to the commencement of formal proceedings, and, second, the institution of the Integrity Compliance Office, which provided guidance to sanctioned parties and monitored implementation of respondents’ compliance programs. For more, see Leroy & Fariello, supra note 3, at 12–17. The drive for greater efficiency also led the Bank to consider and then pilot negotiated resolutions to sanctions cases (aka settlements) in lieu of full-blown sanctions proceedings. 50 See Leroy & Fariello, supra note 3, at 17–18. 51 Sanctions Procedures, supra note 4, at Article XI. See Leroy & Fariello, supra note 3, at 20–22. http://www.un.org/Depts/oios/ The World Bank Legal Review110 procedural protections.52 Indeed, in a comparative study with the other major MDBs and with other IOs, the Bank’s procedures are substantially more elabo- rate.53 The Bank, with different needs and with a greater variety of interests than most other IOs, has deemed such provisions to be well merited: on the one hand, the Bank funds a diversity of projects in a diversity of places, im- plicating stakeholders around the world; on the other hand, more than half of respondents are sanctioned by default because they do not respond in any way to notices of sanctions proceedings, and only one-third of respondents appeal the EO’s recommended sanction.54 Moreover, recognizing that due process standards are not ubiquitous,55 the Bank has not created a one-size- fits-all system: although operating within the expeditious contours of an ad- ministrative model, the Bank has developed a series of gradations within its regime. Thus, at one end of the spectrum, the system allows for more expedi- ent processing when allegations are less serious and when the corresponding due process requirements are less onerous; at the other extreme, when allega- tions are considerably weightier, the full system, with all of its incumbent due process guarantees, is engaged. Such legal innovations allow the Bank to more attentively engage respondents while fulfilling its fiduciary duty. The Commitment to Transparency: An Ever-Improving System The Bank’s decision to increase due process protections for respondents in its sanctions regime is doubly beneficial. First, it ensures that the Bank appro- priately fulfills its fiduciary duty under its Articles of Agreement.56 Second, it corresponds with the Bank’s emerging role of seeking to encourage not only economic development but also the growth of socially accountable societies founded on and embracing law and justice.57 As this edition of the World Bank 52 See Fox, supra note 13. See also, Second Thornburgh Report, supra note 30 at 2 et seq. 53 See Zimmermann & Fariello, supra note 41. 54 Dubois & Nowlan, supra note 24, at 21–22. 55 See discussion of due process at note 12. The US Supreme Court has said that due process, “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Matthews v. Eldridge, 424 U.S. 319, 334 (1975) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [1961], describing the flexibility of due process). The court highlighted the flexibility of the notion by continuing that its protections are required only when the “particular situation demands” (quoting Morrissey v. Brewer, 408 U.S. 471, 481 [1972]). 56 IBRD Articles of Agreement, supra note 4, at Article III, Section 5(b), and IDA Articles of Agreement, supra note 4, at Article V, Section 1(g). 57 See News & Broadcast, World Bank, The Global Partnership for Social Accountability: A New Mechanism to Support Civil Society Organizations, Press Release No. 2012/406/WBI (Apr. 19, 2012), available at http://go.worldbank.org/1393388IP0; Hassane Cissé, Conflict, Fragility and Development in a Globalized World: Challenges and Implications for the Law of the Future, 4th HiiL Law of the Future Conference ( Jun. 23, 2011) (“[D]iverse . . . forms of violence result in fragility, or the weakening, diminishing and destruction of institutions that would other- wise contain conflicts and resolve injustice peacefully. This definition of fragility constitutes the flip side of what has been defined as ‘rule of law’”); Q&A with Hassane Cissé, Global Forum: How Open Data Links Rule of Law to Economic Growth, East African (Apr. 9 –15, 2012) http://go.worldbank.org/1393388IP0 Transforming through Transparency 111 Legal Review so clearly shows, and as this chapter emphasizes with regard to a specific facet of the Bank’s activities, law and justice are not merely means to an end but are themselves ends, albeit ends that will further other developmental ends, such as economic growth.58 Such theories of inclusive development are not new,59 although they are (relatively) new in their implementation.60 The Bank’s vision of inclusive growth and development—that is, broad- based investment in human beings61—is one that the Bank has embraced at large.62 This vision is apparent in the World Bank Inspection Panel, which en- sures that a voice is afforded to those affected by Bank-financed projects in which there has been a breach of Bank protocol.63 The vision dovetails with (“Business actors need to trust [governmental and social] institutions, and especially judicial institutions. The system has to be robust, efficient and respond to people’s needs. If business people don’t trust that rulings will be timely and just, they will find other ways to solve disputes. More often than not, they will prefer to bypass the justice system and buy out- comes—in other words, resort to corruption. This spills over beyond the business sector and becomes a social problem, setting the clock back for development. . . . A working system has to be fair, transparent, accessible to everyone, and timely. . . . Only then can we have tools to hold government accountable, so that concepts like the rule of law, justice, social inclusion, empowerment and accountability move beyond simple words to become reality, and part and parcel of the development process”). See also Justin Yifu Lin, Demystifying Success: The New Structural Economics Approach (World Bank Apr. 2011); Siobhán McInerney-Lankford & Hans-Otto Sano, Human Rights Indicators in Development: An Introduction (World Bank 2010). 58 See, for example, Justin Yifu Lin and Célestin Monga, The Growth Report and New Structural Economics (World Bank 2010); Q&A with Hassane Cissé, supra note 57 (“Development goes beyond providing economic growth. It has to address equity, equality and justice, and these are at the heart of the rule of law. If these are not dealt with, you don’t have the foundation for economic development”). See also Cooter & Schafer, supra note 28. 59 For example, see David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Re- flections on the Crisis in Law and Development Studies in the United States, 4 Wis. L. Rev. 1062 (1974); Richard A. Posner, Creating a Legal Framework for Economic Development, 13 World Bank Research Observer 1 (1998); Hernando de Soto, The Other Path: The Economic Answer to Terrorism (Basic Books 1989); Amartya Sen, Development as Freedom (Knopf 1999); Kaushik Basu & Ravi Kanbur ed., Arguments for a Better World: Essays in Honor of Amartya Sen (Oxford U. Press 2009). See also Cooter & Schafer, supra note 28. 60 Although the Bank has long acknowledged the important role of civil society and has worked with civil society organizations for decades, having, for example, established what would be called the Civil Society Fund in 1983, the Bank has stepped up efforts and is committed to such activities and to such development. The Global Partnership for Social Accountability, supra note 57. See also Lin and Monga, supra note 58. 61 See Elena Ianchovichina, Susanna Lundstrom, & Leonardo Garrido, What Is Inclusive Growth? PRMED Knowledge Brief (Feb. 10, 2009), available at http://go.worldbank.org /LG5Z4L6LR0. See also Jim Yong Kim, My Call for an Open, Inclusive World Bank, Financial Times (Mar. 28, 2012). 62 World Bank, The Growth Report: Strategies for Sustained Growth and Inclusive Development (World Bank 2008); Lin and Monga, supra note 58, at 14 (“Long-term sustainable and in- clusive growth is the driving force for poverty reduction in developing countries, and for convergence with developed economies”). 63 Inspection Panel, World Bank, at http://www.inspectionpanel.org/. The Inspection Panel is an independent, “bottom-up” accountability and recourse mechanism that investigates IBRD/IDA-financed projects to determine whether the Bank has complied with its opera- tional policies and procedures (including social and environmental safeguards), and to ad- dress related issues of harm. http://go.worldbank.org//LG5Z4L6LR0 http://www.inspectionpanel.org/ http://go.worldbank.org//LG5Z4L6LR0 The World Bank Legal Review112 the selection of Dr. Jim Yong Kim,64 a medical doctor and developmentalist, as president rather than the more traditional choice of an economist or of a politician.65 Similarly, it is a motivating factor behind the Global Forum for Law, Justice and Development, of which the Bank will serve as Secretariat, and which aims to support the development of strong legal and judicial insti- tutions by sharing and generating knowledge through international collabo- ration.66 In the spirit of improving social accountability,67 among other things, the Bank has worked vigorously to develop means of measuring success be- yond traditional economic metrics; critically, it is tying these new measures to governance and anticorruption strategies.68 The key tool therein is transpar- ency; as US Supreme Court justice Louis Brandeis once quipped, “Sunlight is . . . the best disinfectant.”69 64 See, for example, Obama Nominates Dartmouth President Jim Yong Kim to Lead World Bank, Time (Mar. 23, 2012) (“Officials believe [Kim’s] experience will help counter criticism from developing countries that have grown weary of the U.S. stranglehold on the World Bank presidency”). See also News & Broadcast, World Bank, World Bank’s Executive Directors Select Dr. Jim Yong Kim 12th President of the World Bank Group, Press Release No. 2012/395/SEC (Apr. 16, 2012), available at http://go.worldbank.org/AX89KWI2H0. 65 Annie Lowrey, College President Is Obama’s Pick for World Bank Chief, NY Times (Mar. 23, 2012), available at http://www.nytimes.com/2012/03/24/business/global/dartmouth -president-is-obamas-pick-for-world-bank.html. Kim’s acceptance is striking because he has openly—and articulately—challenged “[t]he idea that robust economic growth will au- tomatically lead to a better life for everybody” and has even gone so far as to argue that “the structure and current rules of today’s market-led economic globalization [that is, in 2000] widen the chasm between the privileged and the destitute, imperiling the lives of the world’s poor.” See Jim Yong Kim et al. ed., Dying for Growth: Global Inequality and the Health of the Poor 7, 3 (Common Courage Press 2000). A better metric for the success of development, Kim et al. argue, is “[f]ocusing on health rather than other traditional indicators of wealth.” Kim’s unorthodox background led both to considerable criticism of his nomination (Hats Off to Ngozi: A Golden Opportunity for the Rest of the World to Show Barack Obama the Mean- ing of Meritocracy, The Economist [Mar. 31, 2012]) and to much praise (Thomas J. Bollyky, How to Fix the World Bank, NY Times [Apr. 8, 2012]); Gillian Tett, Right Time for a World Bank Renaissance Man, Financial Times [Mar. 30, 2012]). Kim has responded to criticism by saying that his thoughts in 2000 are not applicable: “Our concern [in 2000] was that the vision was not inclusive enough, that it wasn’t, in the bank’s words, ‘pro-poor.’ The bank has shifted tremendously since that time, and now the notion of pro-poor development is at the core of the World Bank.” Annie Lowrey, Obama Candidate Sketches Vision for World Bank, NY Times (Apr. 9, 2012). Kim has also noted that his top priority is “spurring economic growth that creates jobs.” Nicole Kekeh, Dr. Kim Wins Top Job at the World Bank, Forbes (Apr. 17, 2012), available at http://www.forbes.com/sites/worldviews/2012/04/17/dr-kim-wins-top-job -at-the-world-bank-promises-inclusive-leadership/. 66 Charter of the Global Forum for Law, Justice and Development. 67 See, for example, World Bank president Robert Zoellick’s comments on the need to “democ- ratize development” in his Peterson Institute for International Economics speech, The Middle East and North Africa: A New Social Contract for Development (Apr. 6, 2011), available at http:// go.worldbank.org/QQ10SJQOJ0; see also Robert Zoellick’s talk at the conference “Support- ing Social Accountability for Better Results” (Apr. 19, 2012). 68 The Global Partnership for Social Accountability, supra note 57. See also Governance and Anti- corruption Key Principles, Governance & Anticorruption, World Bank, available at http:// go.worldbank.org/32PINXVIJ0; Beyond Transparency: What’s Next? Governance for Develop- ment, available at http://blogs.worldbank.org/governance/beyond-transparency-what -s-next. 69 Other People’s Money and How the Bankers Use It 13 (Frederick A. Stokes Co. 1913). http://go.worldbank.org/AX89KWI2H0.65 http://www.nytimes.com/2012/03/24/business/global/dartmouth-president-is-obamas-pick-for-world-bank.html http://www.forbes.com/sites/worldviews/2012/04/17/dr-kim-wins-top-job-at-the-world-bank-promises-inclusive-leadership/ http://blogs.worldbank.org/governance/beyond-transparency-what-s-next http://www.nytimes.com/2012/03/24/business/global/dartmouth-president-is-obamas-pick-for-world-bank.html http://www.forbes.com/sites/worldviews/2012/04/17/dr-kim-wins-top-job-at-the-world-bank-promises-inclusive-leadership/ http://go.worldbank.org/QQ10SJQOJ0 http://go.worldbank.org/QQ10SJQOJ0 http://blogs.worldbank.org/governance/beyond-transparency-what-s-next http://go.worldbank.org/32PINXVIJ0 http://go.worldbank.org/32PINXVIJ0 Transforming through Transparency 113 In this vein, the Bank is contemplating further reforms to its sanctions regime, with particular emphasis on improving transparency and participa- tion—both of the sanctions process itself and of the policy making that sur- rounds it—as well as due process protections, and exploring ways to afford better access to low-capacity respondents. Although there is more to be done, the Bank has attempted to remain true to its calling to empower the disem- powered. This cyclical process results in ever-greater legitimacy of the Bank and its sanctions regime, as well as in greater efficiency and effectiveness. The Legal Orientation of the Bank’s Sanctions Regime: Toward Ever-Better Governance The Bank’s current system draws from different legal disciplines, not reflect- ing any single national system, or even any single legal tradition—indeed, that is the point. With stakeholders around the world, the World Bank con- tinually strives to remain both global and worldly—that is, to represent the communities of the world while remaining not merely relevant but vibrant in a developmental sea populated by multiple players of all sizes.70 In devel- oping its own system, the Bank draws from both common law and civil law traditions, as well as looking to national systems for inspiration. The Bank’s incorporation of elements on the basis of efficiency and effectiveness has al- lowed it to create its own sui generis tradition, a tradition that operates best in this transnational space where IOs are increasingly developing the meaning of international law.71 Moreover, legal diversification has the added bonus of allaying potential perceptions that the Bank is biased in favor of any given na- tional system. This sui generis system is a major legal innovation that allows the Bank, notwithstanding its size, to bring an impressive degree of particular- ity, precision, and attention to its dealings with varied stakeholders. To understand the orientation and nature of the Bank’s sanctions system, one must understand that the ultimate aim of the system is not to punish but rather to correct and rehabilitate: the system seeks to reintroduce those enti- ties that have been implicated in fraudulent or corrupt behavior back into the market after a certain minimum period of debarment and upon adoption of adequate and effective policies and measures to guard against future miscon- duct.72 Thus, the system’s baseline sanction is “debarment with conditional 70 See, for example, Robert B. Zoellick, Why We Still Need the World Bank: Looking beyond Aid, Foreign Affairs (Mar./Apr. 2012), available at http://go.worldbank.org/45JDG1N1E0. 71 See Alarez, supra note 29. 72 See Leroy & Fariello, supra note 3, at 15. The nuance is subtle yet important, and it has been overlooked by many observers. For an example of the confusion, see Dionne Searcey & David Crawford, World Bank Punishes Units of Alstom SA for Bribery, Wall St. J. (Feb. 23, 2012), avail- able at http://online.wsj.com/article/SB10001424052970203918304577238943984834040 .html; and Greg McArthur, Meet the World Bank’s Anti-bribery Cop, The Globe and Mail (Feb. 7, 2012), available at http://m.theglobeandmail.com/report-on-business/industry -news/the-law-page/meet-the-world-banks-anti-bribery-cop/article2330154/?service=mobile. Notwithstanding the Bank’s desire to rehabilitate vendors, the Bank recognizes its role in http://online.wsj.com/article/SB10001424052970203918304577238943984834040.html http://online.wsj.com/article/SB10001424052970203918304577238943984834040.html http://m.theglobeandmail.com/report-on-business/industry-news/the-law-page/meet-the-world-banks-anti-bribery-cop/article2330154/?service=mobile.Notwithstanding http://go.worldbank.org/45JDG1N1E0 http://m.theglobeandmail.com/report-on-business/industry-news/the-law-page/meet-the-world-banks-anti-bribery-cop/article2330154/?service=mobile.Notwithstanding http://m.theglobeandmail.com/report-on-business/industry-news/the-law-page/meet-the-world-banks-anti-bribery-cop/article2330154/?service=mobile.Notwithstanding The World Bank Legal Review114 release”: in other words, the sanctioned party will be excluded from the pos- sibility of participating in Bank-financed projects for a period of time, and, on condition of proper implementation of appropriate compliance measures, al- lowed to bid once more.73 Operating—as one would expect from bankers—on the understanding that corruption taints the market but that the free market is generally good for all involved, the aim is one of release from debarment and reintegration within the Bank’s (otherwise open) bidding system. Com- pliance with such measures, as well as the system’s objective of rehabilitation and reintroduction, is facilitated through the guidance offered by the integ- rity compliance officer (ICO), whose office also monitors and decides whether conditions have been satisfied.74 The Bank, as much as any other organization, strives toward good gover- nance—that is, the process of effectively addressing shared problems through group decision making.75 Good governance comes only through good rapport and good communication between those governing and those who are gov- erned.76 Critical to such a process are the principles of both transparency and accountability.77 Transparency, which is premised on free access to information, guards against the particular problems of capture and conflicts of interest.78 supporting the rule of law; to this end, if INT substantiates findings of fraud or corruption, the Bank will refer cases to national authorities for prosecution. See, for example, Referrals Made to Governments in FY 10–11, Integrity Vice Presidency Annual Report, Fiscal 2011 44 (World Bank INT 2011), available at http://go.worldbank.org/T40HHT3RF0; see also FAQs, Fraud & Corruption, World Bank, at http://go.worldbank.org/JF938Z5CU0. 73 See Leroy & Fariello, supra note 3, at 14–17. 74 Similarly, the integrity compliance officer (ICO) decides whether conditions established by the sanctions board or EO as part of a conditional nondebarment sanction have been satis- fied. The conditions imposed are likely to be similar to those imposed under debarment with conditional release, including, for example, adoption or improvement of an integrity compliance program and/or other remedial actions related to the relevant misconduct. See Sanctions Procedures, supra note 4, at Article 9.03 (Compliance with Conditions for Non- debarment and Release from Debarment). The ICO was created in 2010. See INT, Sanctions and Compliance, at http://go.worldbank.org/G9UW6Y0DC0. 75 See, for example, Wesley Carrington, Jim DeBuse, & Hee Jin Lee, The Theory of Governance & Accountability (U. of Iowa Center for International Finance and Development 2008). 76 Huma Haider, Claire Mcloughlin, & Zoë Scott, Topic Guide on Communication and Governance (CommGAP & GSDRC 2011), available at http://go.worldbank.org/7BUHFCCQ70. 77 See, for example, Carrington, DeBuse, & Lee, supra note 75; Haider, Mcloughlin, & Scott, su- pra note 76. See also Caroline Freund & Mélise Jaud, Democratic Transitions: Successful, Grad- ual, and Failed, in Accountability and Transparency, World Bank Economists’ Forum 2012 (May 9, 2012); Ryan Booth, Deon Filmer, & Jamele Rigolini, Does Electoral Competition Raise Account- ability?, in Accountability and Transparency, World Bank Economists’ Forum 2012 (May 9, 2012); Marco Larizza, Ryan Jabonski, & Audrey Sacks, Electoral Competition and Access to Information on Public Service Provision: Evidence from Sierra Leone, in Accountability and Transparency, World Bank Economists’ Forum 2012 (May 9, 2012); Carolin Geginat, Adrian Gonzalez, & Valentina Saltaine, Access to Information in Business Regulation, in Accountability and Transparency, World Bank Economists’ Forum 2012 (May 9, 2012). 78 “Capture” refers to the manipulation of policy formation and/or to the distortion of the rule- making process that results in substantial individual gain to the detriment of society or the nation at large; a classic example comes from the profits that accrue to oligarchs of resource- rich countries rather than to the countries and to their citizens. In this context, a “conflict of http://go.worldbank.org/T40HHT3RF0 http://go.worldbank.org/JF938Z5CU0 http://go.worldbank.org/G9UW6Y0DC0 http://go.worldbank.org/7BUHFCCQ70 Transforming through Transparency 115 Accountability, which contemplates the relationship between the organization and its stakeholders, ensures that the organization remains attentive to the needs and interests of its stakeholders and holds managers responsible for deviations thereof.79 However, accountability can operate only in a transpar- ent environment.80 The World Bank Group as a whole has committed itself to furthering the objectives of good governance, transparency, and accountability.81 Notably, the World Bank Group has decided that its internal documents should be made available to the public: adopted at a World Bank Group–wide level under the 2010 Access to Information Policy, all information not on a list of exceptions is disclosed to the public (rather than only information corresponding to a positive list).82 The sanctions system was construed as an exception to the open informa- tion norm and thus stands apart: understanding that the nature of information concerning the sanctions system is fundamentally different from information generally in the Bank’s possession, and recognizing the need to assure the objectiveness of the deliberative process apart from the potential disruptive effect of media attention, the Bank walled off the sanctions system.83 Thus, in short, the general presumptions underlying the Access to Information Policy do not apply to the sanctions regime. Notwithstanding the exception that was carved out for the sanctions pro- cess, it is undesirable if not untenable to maintain the system behind a veil of interest” occurs where there is self-interest competing with a communal interest. See Ro- berta S. Karmel & Claire R. Kelly, The Hardening of Soft Law in Securities Regulation, 34 Brook. J. Intl. L. 883, 946 (2009). See also Geginat, Gonzalez, & Saltaine, supra note 77; Joel Hell- man & Daniel Kaufmann, Confronting the Challenge of State Capture in Transition Economies, Fin. & Dev. (IMF September 2001), available at http://www.imf.org/external/pubs/ft /fandd/2001/09/hellman.htm. 79 See, for example, Helen Darbishire, Proactive Transparency: The Future of the Right to Infor- mation? CommGAP, World Bank, available at http://go.worldbank.org/7BUHFCCQ70. See also UN DESA DPADM, Transparency and Accountability in the Public Sector in the Arab Region, in Concept Paper 2: Transparency and Accountability in Public Financial Administration, RAB/01/006 (Mar. 2004). For a discussion of the evolution of accountability in public orga- nizations and what the term has come to mean, see B. G. Peters in Restoring Accountability Re- search Studies, Vol. 3: Linkages, Responsibilities and Accountabilities (D. Savoie ed., Public Works and Government Services Canada 2006). 80 Id. 81 In the words of former World Bank president Robert Zoellick, “Accountability and transpar- ency are important pillars of the World Bank’s work.” Inspection Panel, available at http:// www.inspectionpanel.org/. See also Lisa Bhansali, Defining Our Path to the “Rule of Law,” Governance for Development, World Bank (Apr. 17, 2012), available at http://blogs.world bank.org/governance/defining-our-path-to-the-rule-of-law. 82 See The World Bank Policy on Access to Information (Jul. 1, 2010), paragraph 13, available at http://go.worldbank.org/LN06W7ZCB0. See also Disclosure Policy Review & Global Con- sultations, World Bank, available at http://go.worldbank.org/FSBLXEWJ50. 83 One of the categorical exceptions in which most information is kept confidential is “other disclosure regimes,” which includes the Bank’s sanctions regime. http://www.imf.org/external/pubs/ft/fandd/2001/09/hellman.htm http://go.worldbank.org/7BUHFCCQ70 http://blogs.worldbank.org/governance/defining-our-path-to-the-rule-of-law http://go.worldbank.org/LN06W7ZCB0 http://go.worldbank.org/FSBLXEWJ50 http://www.imf.org/external/pubs/ft/fandd/2001/09/hellman.htm http://www.inspectionpanel.org/ http://www.inspectionpanel.org/ http://blogs.worldbank.org/governance/defining-our-path-to-the-rule-of-law The World Bank Legal Review116 secrecy;84 therefore, the regime’s actors have worked steadily toward the goal of ever-greater transparency. A series of events in 2011 is particularly reveal- ing. In January 2011, the first notable step to enhance transparency was taken with the updating and making public of the Bank’s Sanctioning Guidelines.85 These guidelines, which attempt to balance predictability with sufficient and equitable flexibility, afford clarity about the imposition of sanctions and offer guidance to INT in its negotiation of settlements.86 In November 2011, the Bank released, for the first time, a detailed information note describing the entire sanctions regime.87 This note gives the public an understanding of the sys- tem as a whole, making public the system’s internal relations and operations, information that was previously largely unknowable to outsiders. An even bigger step came in December 2011, when the Bank published both the undis- puted first-tier determinations (that is, those of the EO),88 and, in decisions that are fully reasoned and include relevant facts and the applied legal reasoning,89 the decisions of the system’s appellate body (that is, those of the Sanctions Board).90 These developments evince the Bank’s commitment to making fair- ness, transparency, and accountability key tenets of the World Bank Group’s sanctions reform agenda91—indeed, the Bank continually explores ways to further transparency and accountability. It should be cautioned that, although the actors of the sanctions system are seeking to make the system more open, total disclosure is not contemplated. For instance, disclosure is limited to undisputed EO determinations and to Sanctions Board decisions, not to all documents or products of the system. Thus, for the sake of the deliberative process, confidentiality is maintained throughout the process, with disclosure of undisputed determinations and decisions made only when they are final. Similarly, INT maintains a “positive list” approach that is intended to cover information that could “be harmful to innocent persons; undermine the work of these groups; or could interfere with 84 Such notions are in keeping with general notions of due process, for example, Article 6, Section 1, of the European Convention on Human Rights (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal estab- lished by law. Judgment shall be pronounced publicly”). 85 World Bank Group Sanctioning Guidelines (Jan. 1, 2011), Key and Reference Documents, World Bank, available at http://go.worldbank.org/CVUUIS7HZ0. 86 Sanctions Regime—The 2008–2010 Reforms, World Bank, available at http://go.worldbank .org/P7Z3PKTXP0. See also Leroy & Fariello, supra note 3, at 19. 87 The World Bank Group’s Sanctions Regime: Information Note, available at http:// go.worldbank.org/CVUUIS7HZ0. 88 See Sanctions Procedures, supra note 4, at Article 10.01(b); Evaluation and Suspension Officer Determinations in Uncontested Proceedings, World Bank, available at http://go.worldbank .org/G7EO0UXW90. 89 Sanctions Board Law Digest, World Bank, available at http://go.worldbank.org/S9PFFM D6X0. 90 Id. 91 See, for example, Notes from the Sanctions Board Chair, in Sanctions Board Law Digest, supra note 89. http://go.worldbank.org/CVUUIS7HZ0 http://go.worldbank.org/P7Z3PKTXP0 http://go.worldbank.org/P7Z3PKTXP0 http://go.worldbank.org/G7EO0UXW90 http://go.worldbank.org/S9PFFMD6X0 http://go.worldbank.org/CVUUIS7HZ0 http://go.worldbank.org/CVUUIS7HZ0 http://go.worldbank.org/G7EO0UXW90 http://go.worldbank.org/S9PFFMD6X0 Transforming through Transparency 117 the work of the groups that play an independent role within the institution.”92 Thus, although the actors have taken the initiative of making the sanctions system as accessible as possible, the entirety of the process is not made public. In effect, the result of this transparency is an increase in both empower- ment and confidence for stakeholders and external participants. Publication of the Sanctions Board Law Digest is an excellent illustration: the Digest fosters greater access to and awareness of the public while resulting in greater cer- tainty and deterrence due to the regime’s heightened visibility.93 At the same time, the Digest offers illustrations of the legal principles at play and how they are to be applied.94 The transparency resulting from offering to the public the decision-making process—the logic, its application, and the context for judg- ment—serves as a mechanism for accountability for all the various actors in the system. Instruments like the Digest also enforce the notion of indepen- dence, a notion central to a properly functioning dispute-resolution system.95 On the flip side, appeals for abuse of discretion keep both Bank Management and the ICO (who monitors implementation of the compliance systems) ac- countable. As a result, stakeholders have not only reason to be confident in the Bank and in its actors but also the tools necessary for ensuring continued high standards of quality, and Bank adherence to those standards and to the rules that shape them. 92 See INT, The Disclosure of Information Policy of the Integrity Vice Presidency (Feb. 3, 2011), avail- able at http://go.worldbank.org/J65IMLGAX0. The positive list is limited to (1) redacted fi- nal investigation reports (FIRs) that set out findings and recommendations at the conclusion of INT’s external investigations and may be followed by sanctions proceedings; (2) redacted Detailed Implementation Review reports (DIRs) of integrity risks in WBG-financed projects, and assessments of measures designed to prevent them; (3) INT’s annual report; (4) reports and other information generated as part of INT’s preventive efforts, for example, thematic reviews, “lessons learned” publications, training, and capacity-building materials; (5) policy papers; and list of debarred companies. 93 See President’s Introduction, in Sanctions Board Law Digest, supra note 89 (“Sanctions pro- tect Bank Group funds and member countries’ development projects by excluding proven wrongdoers from our operations and financing. Sanctions also deter other participants or potential bidders in Bank Group–financed operations from engaging in fraud, collusion, or corruption. By holding companies and individuals accountable through a fair and robust process, the Bank Group’s sanctions system promotes integrity and levels the playing field for those committed to clean business practices”). 94 See Notes from the Sanctions Board Chair, in Sanctions Board Law Digest, supra note 89. 95 In both common and civil law traditions, emphasis is placed on rule of law principles, no- tably that of separation of powers and its incumbent notion of judicial independence. The notion of separation of powers was first discussed by Locke, Second Treatise on Government chapter XII, section 143 (1690). However, Montesquieu is the best-known theorist who has treated the topic. Montesquieu, L’esprit des lois vol. 1, book XI, chapter 6, page 219 (1749). Because the judiciary is generally understood as the “weakest” branch of government, it is widely accepted that it must have the most substantial structural independence from undue influence. In the words of US Supreme Court chief justice Marshall, “The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary.” Quoted in John B. Cassoday, John Scott, & John Marshall, The American Lawyer vol. VII, 60 (Stumpf & Steurer 1899). http://go.worldbank.org/J65IMLGAX0 The World Bank Legal Review118 The move toward transparency is good practice and is in keeping with general rule of law dictates.96 Moreover, it is hoped that such confidence will further encourage worldwide participation in the combat against fraud and corruption and in the development of law and justice. Opening up the sanc- tions system demonstrates both to those “in the docket” as respondents and to external observers that the Bank has a robust and deliberative sanctions system. This kind of a system inspires trust and confidence, thereby encourag- ing engagement with the Bank at all levels, be it at the level of the sanctions process or in deciding whether to do business with the Bank. Conclusion Poverty persists and economies stagnate or fail when innovation and growth lag.97 Law and justice offer the infrastructure to nurture the trust and certainty that in turn promote innovation and growth.98 However, economic growth should not be considered a panacea for social problems, nor should the ben- efits of providing law and justice be understood as merely the handmaid of economic growth.99 Just law encourages social cohesion, equality, citizen em- powerment, and justice—“[a]fter all, the law is, or ought to be, but the hand- maid of justice”100 and “an unjust law is no law at all.”101 More sophisticated and more formal legal systems expand economic opportunities by creating trust among strangers and expectations of generalized reciprocity,102 therein encouraging the building of communities of hope, trust, and prosperity. De- velopment, therefore, cannot be read as advancing economic development in the strictest sense of the term; a sense of ownership and empowerment must also be nurtured. Accordingly, more attention must be paid to strengthening governance. To achieve such an end, legal and governance institutions must be developed, and a sense of the importance of the rule of law must be fos- tered.103 However, such development can occur only if stakeholders believe 96 “The rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone.” Thomas Carothers, The Rule of Law Revival, 77 Foreign Affairs 96 (1998). 97 Cooter & Schafer, supra note 28, at 5. See also Niall Ferguson, Civilization: The West and the Rest (Penguin 2011). 98 Cooter & Schafer, supra note 28, at 1–26. See also Ferguson, supra note 97; Daron Acemoglu & James A. Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (Random House 2012). 99 See Carothers, supra note 96, at 95–105. See also Philip Alston, The Myopia of the Handmaidens: International Lawyers and Globalization, 3 Euro. J. Intl. L. 423–48 (1997); Shirley V. Scott, Inter- national Lawyers: Handmaidens, Chefs, or Birth Attendants? A Response to Philip Alston, 9 Euro. J. Intl. L. 750 –56 (1998). See also Jim Yong Kim et al. ed., Dying for Growth: Global Inequality and the Health of the Poor 7, 3 (Common Courage Press 2000). 100 Lord Penzance, Combe v. Edwards (1878), L. Reports 3 P.D. 142. 101 St. Augustine of Hippo. 102 Cooter & Schafer, supra note 28, at 82 et seq. 103 See, for example, Lisa Bhansali, Defining Our Path to the “Rule of Law,” Governance for Devel- Transforming through Transparency 119 that the systems are accountable, which in turn requires transparency. Lead- ing by example, the World Bank is adhering to social accountability by mak- ing its sanctions regime increasingly transparent and robust. Internationally, the Bank plays an active role104 in combating the “cancer of corruption.”105 However, for enduring change to occur there must be not only outside support but also the will to reform; that will can come only from with- in the community.106 Merely enacting good laws does little without substantial investment and corresponding changes in implementation and enforcement that nurture mutual trust.107 Realizing as much from its extensive experience in rule of law and justice reform projects,108 the Bank emphasizes transparency and accountability across its work, and in its own sanctions regime in particu- lar, is intended to create a sense of trust, confidence, and ownership, that (it is hoped) will elicit that ever-so-essential will for change. The Bank has further bolstered transparency’s transformative effect by crafting an innovative sui generis system that allows it to attentively and opment, World Bank (Apr. 17, 2012), available at http://blogs.worldbank.org/governance /defining-our-path-to-the-rule-of-law. 104 In taking up this area, the Bank has overcome the strictest interpretations of the “political prohibition” that bars it from interfering in the political affairs of its members. The IBRD Ar- ticles of Agreement contain a provision that states that “[t]he Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned.” See IBRD Articles of Agree- ment, Article IV, Section 10. IDA Articles of Agreement contain an identical provision. See IDA Articles of Agreement, Article V, Section 6. Almost-identical provisions are contained in the Agreement Establishing the Inter-American Development Bank, Article VIII, Section 5(f); the Articles of Agreement of the Asian Development Bank, Chapter VI, Article 36; and the Agreement Establishing the African Development Bank, Chapter V, Article 38. In contrast, the constituent documents of EBRD and EIB do not contain any such restriction. See also Hassane Cissé, Should the “Political Prohibition” in Charters of International Financial Institu- tions Be Revisited? The Case of the World Bank, in International Financial Institutions and Global Legal Governance (Hassane Cissé, Daniel D. Bradlow, & Benedict Kingsbury ed., World Bank 2011). 105 Wolfensohn, supra note 6, at 50. See also Transparency International USA, World Bank– Siemens Agreement Sends Strong Signal ( Jul. 2, 2009), available at http://www.transparency -usa.org/news/documents/TIUSASiemensRelease7.2.09.pdf. For example, the Bank is keenly engaging with national authorities. See, for example, News & Broadcast, World Bank, World Bank Welcomes Norwegian Convictions of Three Former Employees of Norwegian Company “Norconsult” in Bribery Case in Tanzania, Press Release No. 2012/029/INT ( Jul. 22, 2011), available at http://go.worldbank.org/VO2EW48OO0. 106 See Carothers, supra note 96, at 96. 107 Id., at 104. 108 Compare, for example, the great increase in projects over the course of the years: Initia- tives in Legal and Judicial Reform 2002 (World Bank 2002) (listing 330 Bank-financed projects related to legal and judicial reform, including a US$58 million loan to Russia), available at http://go.worldbank.org/PJHSQT4RA0; Initiatives in Legal and Judicial Reform 2004 (World Bank 2004) (approximating the number of Bank-financed projects related to legal and judi- cial reform at 600), available at http://go.worldbank.org/PJHSQT4RA0; Initiatives in Justice Reform 2009 (World Bank 2009) (noting that the Bank’s current justice sector assistance and reform portfolio comprises nearly 2,500 justice reform activities in developing or transition countries), available at http://go.worldbank.org/PJHSQT4RA0. http://blogs.worldbank.org/governance/defining-our-path-to-the-rule-of-law http://www.transparency-usa.org/news/documents/TIUSASiemensRelease7.2.09.pdf http://go.worldbank.org/PJHSQT4RA0 http://go.worldbank.org/PJHSQT4RA0 http://go.worldbank.org/PJHSQT4RA0 http://www.transparency-usa.org/news/documents/TIUSASiemensRelease7.2.09.pdf http://go.worldbank.org/VO2EW48OO0 http://blogs.worldbank.org/governance/defining-our-path-to-the-rule-of-law The World Bank Legal Review120 expeditiously engage respondents of all shapes and sizes. Until recently, those borrowing from the Bank had their freedom restricted: not only did borrowers not understand the nature of the Bank’s debarment system; they also had lim- ited decision-making powers as the Bank decided on whether certain contrac- tors were employable. The opening up of the Bank’s sanctions regime gives increased confidence to borrowers and contractors alike, as they can see the robust and deliberative nature of the Bank’s system; this opening up also will make the sanctions system more predictable and accessible. Of course, the sanctions system—as with any judicial recourse—remains a contingency: it is the unhappy alternative, not the desired route. That said, confidence in the system is of enduring importance to bolstering the rule of law, as obscuring the nature of that system can have a chilling effect: for those entities doing business with the Bank, not knowing the basis on which the Bank debarred, and yet remaining subject to the possibility of a public shaming, detracted from the Bank’s legitimacy, as well as adding a degree of uncertainty and hassle to working with the Bank. Opening up the sanctions system builds confidence in that system, empowers stakeholders, and has the correlative benefit of building confidence in doing business with the Bank. In matters of governance and of rule of law, the Bank is practicing what it preaches, thereby assuring stakeholders that, in doing business with the Bank, they are not throwing caution to the wind. Such relations improve the political economy of Bank-financed development projects. * * * Left unchecked, fraud and corruption have broad, corrosive, and lingering effects on countries and on communities; they undermine the effectiveness of development projects and erode confidence in systems and in societies.109 The consequence of unchecked corruption is an increase in corruption, as well as a general lack of public confidence in democratic processes, slowed eco- nomic growth, the deepening of inequality, and a general breakdown in social norms of sensitivity.110 Shoring up the rule of law helps temper corruption and crime.111 The Bank’s sanctions regime plays a key role in combating fraud and 109 See Governance and Anticorruption (GAC) Implementation Plan, OPCS, World Bank (Sep. 28, 2007), available at http://go.worldbank.org/ZFUWCFJQ80; FAQs, Fraud & Cor- ruption, World Bank, at http://go.worldbank.org/JF938Z5CU0. See also Wolfensohn, supra note 6, at 50; Yikona et al., supra note 5; Chaikin & Sharman, supra note 5; Jayasuriya, supra note 5, at 46–58. 110 Id. For instance, the growth of corruption in South Africa resulted in citizens not knowing how to report corruption and, even more alarmingly, in the general belief that reporting would not be beneficial and fear of the consequences of reporting. See Hennie van Vuuren, Small Bribes, Big Challenges: Extent and Nature of Petty Corruption in South Africa, 9 S. Afr. Crime Quarterly (2004). In an interesting though counterintuitive and somewhat question- able conceptualization, Cooter & Schafer argue that certain corruption can serve a beneficial purpose insofar as it subverts laws that impede economic growth; unfortunately, no con- sideration is made of the subversive rule of law effects of this “good” corruption. Cooter & Schafer, supra note 28, at 168–72. 111 See Carothers, supra note 96, at 99. http://go.worldbank.org/ZFUWCFJQ80 http://go.worldbank.org/JF938Z5CU0 Transforming through Transparency 121 corruption around the world, and it is hoped that the opening up of the pro- cess to stakeholders will help to combat corruption further. The international community has recognized that “[c]ommunity devel- opment draws on existing human and material resources in the community to enhance self-help and social support, and to develop flexible systems for strengthening public participation. . . . This requires full and continuous ac- cess to information, learning opportunities . . . , as well as funding support.”112 By developing an effective and innovative sanctions system, and in making that system transparent, the Bank is stepping up its efforts to fight fraud and corruption, with the ultimate goal of strengthening and empowering com- munities. The World Bank’s dream is of a world without poverty; impoverish- ment, however, can come in many forms, and, so the Bank—and the actors in its sanctions regime—is expanding the battlefront. 112 The Ottawa Charter for Health Promotion (Nov. 21, 1986). 123 Human Rights and Development Regime Interaction and the Fragmentation of International Law Siobhán Mcinerney-Lankford Human rights and development interact in a range of ways, and so too do the legal and policy frameworks, or regimes, that govern each.1 In this chapter, “regimes” are defined as “sets of norms, decision-making procedures, and or- ganizations coalescing around functional issue-areas.”2 This chapter considers the connections between human rights and development from the perspective of public international law as “regime interaction,” focusing specifically on the links between human rights law and development policy. It departs from the premise of the centrality of law as a defining feature of human rights3 and legal accountability as a key contribution of human rights and development.4 It espouses the view that more attention is due to human rights law and hu- man rights obligations in the context of development.5 From this the chapter considers the degree to which human rights are integrated explicitly into de- velopment policies and programs and the extent to which human rights are recognized as law in those contexts.6 The views expressed in this article are those of the author and do not necessarily reflect the views of the Board of Executive Directors of the World Bank or the governments they represent. The author thanks Mac Darrow, Olufemi Elias, Nathan Lankford, Victor Mosoti, Hans-Otto Sano, Andres Rigo Sureda, and Chantal Thomas for comments on earlier drafts of this article, and Behnaz Bonyadian, Christian Jimenez-Tomas, and Laura Lalime-Mowry for research assistance. Responsibility for errors or omissions remains with the author. 1 M. Young, Regime Interaction in International Law: Facing Fragmentation (Cambridge U. Press 2012). 2 M. Young, Introduction, in Young, id., at 9. The term is understood to cover both the for- mal or binding legal frameworks governing a particular area or issue, including treaties, norms, legislation, rules, and regulations, and softer measures such as policies, statements, programs, processes, and directives. Nevertheless, the term “regime” is a nonlegal term with no fixed definition that has generated a vast body of literature in both international relations and public international law. See, for example, S. Krasner ed., International Relations (Cornell U. Press 1983). 3 D. Forsythe, Human Rights Studies: On the Dangers of Legalistic Assumptions, in Methods of Hu- man Rights Research (F. Coomans, F. Grünfeld, & M. Kamminga ed., Intersentia 2009). Despite the author’s thesis and cautions, he acknowledges that “law has remained central to the notion of human rights. That is because, . . . it is law that authoritatively defines a society’s understanding of what are human rights at a given point in time.” 4 See S. McInerney-Lankford, Human Rights and Development: A Comment on Challenges and Op- portunities from a Legal Perspective, 1(1) J. of Human Rights Practice 74–75 (2009). 5 For a critical view of the value of international human rights treaties, see O. Hathaway, Do Human Rights Treaties Make a Difference? 111 Yale L. J. 1935–2042 (2002). 6 This chapter considers the potential influence of human rights on development, rather than The World Bank Legal Review124 In particular, this chapter explores the place of international human rights obligations and human rights treaties in development policies and assesses the impact of this role in operational terms.7 It notes that, despite growing recognition of human rights as the subject of binding international law obliga- tions on the part of development agencies and banks, and despite increased emphasis on policy coherence, the trend across development is far from uni- form and in many respects is inconsistent and divergent.8 The chapter argues that the relationship between human rights and development policy can be analyzed as regime interaction. This interaction exemplifies the fragmentation of international law, most evident in the uneven integration of human rights law obligations into development policies and processes. This chapter contends that the growing recognition of human rights in legal and operational terms could advance international policy coherence and mediate risk. It also suggests that the ability of international development in- stitutions and their regimes to adapt to evolving international norms could be expanded to human rights.9 It argues for the place and relevance of hu- man rights in development regimes rather than suggesting particular ways in which potential norm conflicts between the regimes should be resolved. It therefore invites consideration of the relationship of human rights and devel- opment in terms of regime interaction and suggests a frame for future consid- eration of norm interaction. The Relationship of Human Rights and Development Human rights and development connect in a range of ways. The following discussion does not review in detail the conceptual discussions developed elsewhere but rather sets the context for the ensuing discussion of how human rights are reflected in development policy frameworks or regimes to facilitate a discussion of how those regimes interact and the place of legal obligations within that relationship. Human rights and development are different: achieving a positive result in a given field, such as health, is not the same as realizing the right to health; nor will such a result “automatically promote respect for the corresponding right and imbue the rights-holder and duty-bearers with a long-term guaran- tee [or] set of structural claims.”10 Yet, at some intuitive level, human rights the reverse, although it assumes the two-way nature of the relationship between the two. See World Bank, Development and Human Rights: The Role of the World Bank (World Bank 1998). 7 This approach departs from the view that “when we speak of universal human rights, it is international law that defines them in a positivistic sense, for better or worse.” Forsythe, supra note 2, at 61. 8 P. Uvin, Human Rights and Development 47 (Kumarian Press 2004). 9 A. Rigo Sureda, The Law Applicable to the Activities of International Development Banks, in Re- ceuil des cours 217 (Martinus Nijhoff 2005). 10 Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, A/HRC/17/25 (Apr. 12, 2011), Human Rights and Development 125 and development share affinities. In substantive ways, they occupy many of the same sectors or spheres, and in certain types of operations, development bears distinct similarities to human rights. The “normative and institutional pluralism”11 that exists between human rights and development results in overlapping activities and mutual influence among their governing regimes, such that the demarcation between them is sometimes difficult to draw.12 It may even be said that the overlap between the two areas or regimes is increasing and that the range of development poli- cies and activities now affecting areas governed by human rights treaties is growing. Some practitioners have even observed that there has not been an evolution in the thinking on matters related to human rights to correlate with the expansion in the mandate of development institutions.13 Moreover, “complex problems have ramifications in many specialized directions.”14 Attempts at strict demarcations between different regimes or competencies fail to register the complex realities of international human rights and development, giving rise to both an increased potential for con- flicting norms in international law and a “situation of ongoing institutional diversity and pluralism and the day-to-day and relatively mundane occur- rences of overlapping forms and inter-regime activity.”15 This is particular- ly true because development and human rights share consistent goals16 but pursue them differently, and their agendas overlap extensively17 and in mutu- ally reinforcing ways.18 paragraph 50, quoting P. Uvin, Human Rights and Development 52–53 (Kumarian Press 2004). 11 M. Young, Regime Interaction in Creating, Implementing and Enforcing International Law, in Young, supra note 1, at 86. 12 On the overlap of domains of activity and regulatory processes at the international level, see B. Kingsbury, Introduction: Global Administrative Law in the Institutional Practice of Global Regu- latory Governance, in World Bank Legal Review vol. 3 (H. Cissé, D. Bradlow, & B. Kingsbury ed., World Bank 2012). 13 Sureda, supra note 9, at 217. 14 Judge Weeramantry dissenting, Use of Nuclear Weapons in Armed Conflict Advisory Opinion (1999) (I) ICJ Rep. 66. 15 Young, supra note 11, at 85. 16 United Nations Development Programme (UNDP), Human Rights and Human Development, in Human Development Report 2000, sections 19–28 (UNDP 2000). See S. Jahan, Millennium Development Goals and Human Rights (2002), available at http://www.inwent.org/ef-texte /human_rights/jahan.htm. See also Report of the Millennium Project, Investing in Development: A Practical Plan to Achieve the Millennium Development Goals, which characterizes the MDGs as human rights: “[The MDGs] are also basic human rights—the rights of each person on the planet to health, education, shelter, and security as pledged in the Universal Declaration of Human Rights and the UN Millennium Declaration” (page 1), available at http://www .unmillenniumproject.org/reports/fullreport.htm. 17 P. Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals, 27(3) Hum. Rights Q. 758. 18 OHCHR, Frequently Asked Questions on Human Rights Based Approach to Development Coopera- tion (UN 2006), and UNDP, Human Development Report 2003: Millennium Development Goals: A Compact among Nations to end Human Poverty (UNDP 2003). See also J. L. Roy, Implementing the http://www.inwent.org/ef-texte/human_rights/jahan.htm http://www.unmillenniumproject.org/reports/fullreport.htm http://www.inwent.org/ef-texte/human_rights/jahan.htm http://www.unmillenniumproject.org/reports/fullreport.htm The World Bank Legal Review126 Examples of this convergence can be identified in the areas of social protec- tion, education, governance, and health, as well as in thematic terms through activities aimed at the protection of women, indigenous peoples, children, and persons with disabilities. The Millennium Development Goals (MDG) illus- trate the proximity and compatibility of human rights and development, even if they are critiqued for their silence on human rights19 and their failure to ad- dress inequalities and the plight of the most vulnerable.20 At a deeper level, human rights and development may be viewed as con- verging in shared principles such as equality, participation, accountability, transparency, and voice, as well as in attention to vulnerable groups, all of which are principles that have become hallmarks of good development prac- tice.21 Both development and the international human rights frameworks give expression to these principles in different ways that evince a convergence of a more deliberate and strategic sort. However, in general legal and policy terms, the international frameworks governing human rights and development occupy separate spheres governed by distinct regimes. Nowhere is this more apparent than in relation to legal obligations.22 International human rights are the purview of treaty frameworks such as the International Covenant on Civil and Political Rights (ICCPR)23 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),24 along with a range of other universal instruments and their protocols gov- erning issues such as gender discrimination,25 child rights,26 disabilities,27 Millennium Development Goals: Our Human Rights Obligation, 15(1) Libertas, who opines, “many of the MDGs can be reinforced by the binding human rights obligations of states.” 19 Alston, supra note 17, at 796. See, generally, OHCHR, Claiming the Millennium Development Goals: A Human Rights Approach (United Nations 2008), available at http://www2.ohchr .org/SPdocs/Claiming_MDGs_en.pdf. 20 See, for example, M. Langford, A Poverty of Rights: Six Ways to Fix the MDGs, 41(1) IDS Bul- letin 87 ( Jan. 2010). 21 S. McInerney-Lankford & H.-O. Sano, Human Rights Indicators in Development: An Introduc- tion 31– 36 (World Bank 2010). 22 Id., at 36–40. 23 International Covenant on Civil and Political Rights (ICCPR), UN GA Res. 2200A (XXI), 21 UN GAOR Supp. No. 16, at 52, UN Doc. A/6316 (1966), 999 UNTS 171 (entered into force Mar. 23, 1976). 24 International Covenant on Economic, Social and Cultural Rights (ICESCR), UN GA Res. 2200A (XXI), 21 UN GAOR Supp. No. 16, at 49, UN Doc. A/6316 (1966), 993 UNTS 3 (entered into force Jan. 3, 1976). 25 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), UN Doc. A/34/46, at 193 (1979), 1249 UNTS 14 (entered into force Sep. 3, 1981). 26 Convention on the Rights of the Child (CRC), UNTS 3, 28 I.L.M. 1456 (entered into force Sep. 2, 1990). 27 Convention on the Rights of Persons with Disabilities (ICRPD), A/RES/61/106 (adopted Jan. 24, 2007). http://www2.ohchr.org/SPdocs/Claiming_MDGs_en.pdf http://www2.ohchr.org/SPdocs/Claiming_MDGs_en.pdf Human Rights and Development 127 torture,28 and migrant workers.29 This is complemented by regional human rights law frameworks and monitoring systems in Europe (ECHR,30 the Char- ter of Fundamental Rights of the EU31), the Americas,32 and Africa.33 Development, for its part, is defined more by broad-based goals such as the MDGs and general statements, strategies, programs, and policy frame- works of development institutions, which do not generally incorporate inter- national legal norms34 directly or explicitly. Philip Alston has noted the resis- tance to human rights in the context of the MDGs, attributing it to the fact that human rights are “a quintessentially legal domain and thus not one which is suitable for use in a general development studies context.”35 Thus, the binding legal frame of development cooperation tends to operate either at the level of the constitutive instruments of development agencies or at the transactional level of individual legal agreements underpinning particular operations. Al- though each of these instruments is an international agreement36 subject to public international law,37 the bulk of the development policy framework is not the domain of international legal norms, is not usually framed in terms of treaties, and does not readily admit a place for treaty obligations such as those flowing from human rights treaties. Moreover, despite the more recent emphasis on accountability in develop- ment frameworks,38 these frameworks do not involve legal accountability of 28 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish- ment (CAT ) (Dec. 10, 1984), 1465 UNTS 85 (entered into force Jun. 26, 1987). 29 International Convention on the Protection of the Rights of All Migrant Workers and Mem- bers of Their Families, CPRMW (Dec. 18, 1990), UN GA Res. 45/158 (annex), 30 I.L.M. 1521 (1991) (entered into force Jul. 1, 2003). 30 See http://www.hri.org/docs/ECHR50.html. 31 Official Journal of the European Union C 83/389, available at http://eurlex.europa.eu/Lex UriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF. 32 American Convention on Human Rights (Pact of San Jose), OAS Treaty Series No. 36, 1144 UNTS 123 (entered into force Jul. 18, 1978), available at http://www.oas.org/juridico/en glish/treaties/b-32.html. 33 African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct. 21, 1986). 34 By norms, this chapter refers to legally binding rules that create rights and obligations be- tween subjects of international law. 35 P. Alston, What’s in a Name: Does It Really Matter if Development Policies Refer to Goals, Ideals or Human Rights? 22 SIM Special 101 (1997). 36 Because these international agreements are entered into by UN members, the agreements are subject to the registration requirement of Article 102 of the UN Charter. See A. Broches, The- ory and Practice of Treaty Registration with Particular Reference to Agreements of the International Bank, in Selected Essays World Bank, ICSID, and Other Subjects of Public and Private International Law 99 (Martinus Nijhoff 1995). All treaties and international agreements registered with the United Nations are available at http://treaties.un.org/. 37 I. Shihata, The World Bank Legal Papers 151 (Martinus Nijhoff 2000), in discussing the World Bank general conditions, confirms that the Bank’s loan and guarantee agreements are international agreements that, although insulated from domestic law, are subject to public international law. 38 For example, Global Monitoring is a monitoring framework focused on “how the world is http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF http://www.oas.org/juridico/english/treaties/b-32.html http://www.hri.org/docs/ECHR50.html http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF http://www.oas.org/juridico/english/treaties/b-32.html http://treaties.un.org/ The World Bank Legal Review128 the sort associated with treaties such as human rights treaties, and arguably cannot therefore empower poor or marginalized groups to claim their rights in the development process and bridge the gap between global standards and local circumstances.39 Indeed, some people have argued that accountability itself cannot be separated from contests over the realization of rights and the distribution of resources.40 In general terms, therefore, human rights and development are governed by distinct regimes, including separate legal frameworks, that interact only occasionally and in ways that are far from clear. Only very rarely do human rights law obligations, such as those emanating from human rights treaties, receive formal recognition in the development regimes, and even then the operational consequences of such obligations are not always apparent. This chapter draws on the well-known concept of fragmentation of international law to analyze the relationship between human rights and development and the interaction of the legal and policy regimes that govern each.41 The fragmentation of international law is generally understood to refer to the way in which international law is split into “highly ‘specialized boxes’ that claim relative autonomy from each other and from the general law.”42 It is the subject of extensive academic commentary,43 viewed by many as a product of the expansion and diversification of public international law and connected with the proliferation of special regimes. Some view fragmentation as a prob- lem that undermines the general law and the systemic nature of international law,44 while others view it as inevitable, perhaps even capable of strengthening special regimes.45 Some of the literature focuses on the resolution of conflict between the norms of various special regimes,46 whereas other work explores doing in implementing the policies and actions for achieving the MDGs and related devel- opment outcomes. It is a framework for accountability in global development policy.” See http://go.worldbank.org/AECE2VJFU0 . 39 See P. Newell & J. Wheeler, Rights, Resources and the Politics of Accountability (Institute of De- velopment Studies 2006). 40 Id. 41 The putative causes of this fragmentation are discussed in more detail below. 42 ILC Study Group, Conclusions of the Work of the Study Group on the Fragmentation of Interna- tional Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 256 (2006). 43 P. M. Dupuy, The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice, 31 N.Y.U. J. Intl. L. & Pol. 791–807 (1999); J. Pauwleyn, Bridging Fragmentation and Unity: International Law as a Universe of Inter-connected Islands, 25 Mich. J. Intl. L. 903–17 (2004); K. Wellens & R. Vinaixa ed., L’influence des sources sur l’unité et la frag- mentation du droit international (Bruylant 2006). The 105th Meeting of the American Society of International Law addressed some similar themes in Harmony and Dissonance in International Law (2011). 44 M. Koskenniemi & P. Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Intl. L. 553 (2002), discuss a range of views on the various risks of fragmentation. 45 B. Simma, Fragmentation in a Positive Light, 25 Mich. J. Intl. L. 845 (2004). 46 For example, M. Milanović, Norm Conflict in International Law: Whither Human Rights? 20 http://go.worldbank.org/AECE2VJFU0 Human Rights and Development 129 the ways in which norms and institutions from disparate regimes overlap and interact.47 This chapter adopts the latter approach, applying it to the interac- tion of regimes governing human rights and development. Human Rights and Development: Regime Interaction and Policy Coherence What, then, is the nature of the interaction between the regimes governing human rights and development?48 Where and how do the regimes interact at the level of legal and policy discourse? In particular, how are human rights reflected in the development policy frameworks of bilateral and multilateral donors? This section outlines the various levels of formal interaction between the development and human rights regimes in high-level political statements and soft law, as well as the individual policies of particular agencies and insti- tutions. From there, it assesses the nature and quality of the transposition of human rights, whether in general references, as principles, or as legal obliga- tions with direct operational implications. International Political Statements and Soft Law Soft law measures dating from the 1960s link human rights and development. These recognize that failure to reach development goals impedes the realiza- tion of human rights and that “the achievement of lasting progress in the im- plementation of human rights is dependent upon sound and effective national and international policies of economic and social development.”49 Perhaps the most direct attempt at linking human rights and development emerges in the right to development. In 1986, the UN General Assembly adopted the Declara- tion on the Right to Development,50 which pronounces the right to develop- ment as a new human right, one of the so-called third generation of human rights. At the same time these initiatives were under way at the international political level, philosophers such as Amartya Sen and Martha Nussbaum were forging links between human rights and development. Sen’s concept of devel- opment as freedom, under which the essential goal of development is expand- ing substantive human freedoms, or “capabilities,” has a natural affinity with human rights and human rights–based approaches to development, particu- larly in its emphasis on the importance of voice for marginalized groups.51 Duke J. Comp. & Intl. L. 69 (2009). 47 M. Young ed., Regime Interaction in International Law (Cambridge U. Press 2012). 48 For a definition of regimes, see Young, supra note 1. 49 Proclamation of Teheran, Final Act of the International Conference on Human Rights, Tehe- ran, Apr. 22 to May 13, 1968, UN Doc. A/CONF. 32/41, at 3 (1968). 50 Declaration on the Right to Development, A/RES/41/128 (Dec. 4, 1986). See also S. Marks, Emerging Human Rights: A New Generation for the 1980’s, 33 Rutgers L. Rev. 435 (1981); S. Marks, The Human Right to Development: Between Rhetoric and Reality? 17 Harv. Hum. Rights J. 137 (2004). 51 A. Sen, Development as Freedom (Oxford U. Press 2000). The World Bank Legal Review130 The Declaration on the Right to Development underscores the links be- tween human rights and development by “[r]ecognizing that the human per- son is the central subject of the development process and that development policy should therefore make the human being the main participant and ben- eficiary of development.” Article 1 states, “The right to development is an in- alienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental free- doms can be fully realized.” In 1993, the Vienna Declaration and Programme of Action, in addition to reaffirming the right to development, asserted that “[d]emocracy, develop- ment, and respect for human rights and fundamental freedoms are interde- pendent and mutually reinforcing.”52 Although such measures represent efforts to connect human rights and development cohesively, they also underscore the fragmentation of interna- tional law by not being binding and by the fact that they do not connect hu- man rights obligations operationally with development.53 The marginality of the right to development in normative terms and the vagueness surrounding content and meaning in the operational frameworks of development agencies are evidence of the separateness of the human rights and development frame- works rather than an example of their convergence. In 2000, the global community adopted the Millennium Declaration, which contains commitments to respect human rights and uphold the Uni- versal Declaration of Human Rights.54 This was followed by the 2010 Millen- 52 Vienna Declaration and Programme of Action, A/CONF.157/23 ( Jul. 12, 1993; adopted by the World Conference on Human Rights on Jun. 25, 1993), paragraph 8. 53 The discourse around the right to development has often been a polarized one, generat- ing sharp differences between developed and less developed countries in the context of de- mands for redressing economic imbalances and a new international economic order. For a thoughtful review of the history and implications of the right to development, see I. Bunn, The Right to Development: Implications for International Economic Law, 15 Am. U. Intl. L.J. 1425 (2000). On the right to development more generally, see S. Choudhury, The Right to Develop- ment in International Law (Martinus Nijhoff 1992). 54 Section V of the Millennium Declaration, on human rights, democracy, and good gover- nance, reads: 24. We will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development. 25. We resolve therefore: • To respect fully and uphold the Universal Declaration of Human Rights. • To strive for the full protection and promotion in all our countries of civil, political, economic, social and cultural rights for all. • To strengthen the capacity of all our countries to implement the principles and prac- tices of democracy and respect for human rights, including minority rights. • To combat all forms of violence against women and to implement the Convention on the Elimination of All Forms of Discrimination against Women. Human Rights and Development 131 nium Summit Outcome document, Keeping the Promises: United to Achieve the Millennium Development Goals,55 which contains several references to human rights and international law instruments, reaffirming full respect for interna- tional law and principles56 and for all human rights, including the right to development.57 It also notes that gender equality and women’s full enjoyment of human rights are essential to economic and social development, including the achievement of the MDGs.58 Agencies such as the UN Office of the High Commissioner for Human Rights (OHCHR) have continued to emphasize the importance of human rights to development as part of a broader agenda of international policy coherence.59 This was affirmed by the UN High Commis- sioner for Human Rights in the context of the right to development: “We must foster policy coherence and systemic integration of human rights, including the right to development, across sectors, across institutions and across layers of governance. Human aspirations for well-being can be realized only when there is a strong accountability framework.”60 In the area of aid effectiveness, although the 2005 Paris Declaration on Aid Effectiveness61 does not contain any explicit reference to human rights as a cross-cutting theme,62 it does confirm five core principles deemed essential to improving the effectiveness of development assistance and contributing to meeting the MDGs: ownership, alignment, harmonization, managing for re- sults, and mutual accountability to improve the quality of aid and its impact on development. In 2008, the Accra Agenda for Action (AAA) proclaimed re- spect for human rights as a cornerstone for achieving enduring impact on the • To take measures to ensure respect for and protection of the human rights of mi- grants, migrant workers and their families, to eliminate the increasing acts of racism and xenophobia in many societies and to promote greater harmony and tolerance in all societies. • To work collectively for more inclusive political processes, allowing genuine partici- pation by all citizens in all our countries. • To ensure the freedom of the media to perform their essential role and the right of the public to have access to information. 55 Integrated and Coordinated Implementation of and Follow-Up to the Outcomes of the Major UN Conferences and Summits in the Economic, Social, and Related Fields. Follow-up to the Outcome of the Millennium Summit, A/65/L.1 (Sep. 17, 2010). 56 Paragraph 2, 2010 Millennium Summit Outcome document. 57 Paragraph 3, 2010 Millennium Summit Outcome document. 58 Paragraph 12, 2010 Millennium Summit Outcome document. 59 See below for a discussion of international policy coherence. 60 Closing Statement by the High Commissioner for Human Rights at UN General Assem- bly Event to Commemorate the 25th Anniversary of the United Nations Declaration on the Right to Development (Nov. 8, 2011), available at http://www.ohchr.org/en/NewsEvents /Pages/DisplayNews.aspx?NewsID=11583&LangID=E. 61 See http://www.oecd.org/dataoecd/11/41/34428351.pdf and http://ec.europa.eu/devel opment/icenter/repository/SEC_PDF_2009_1137_F_ACTE_PCD_EN.pdf (2009). 62 Paragraph 42 of the 2005 Paris Declaration on Aid Effectiveness notes the need for “har- monisation efforts on other cross cutting issues such as gender equality and other thematic issues.” http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11583&LangID=E http://www.oecd.org/dataoecd/11/41/34428351.pdf http://ec.europa.eu/development/icenter/repository/SEC_PDF_2009_1137_F_ACTE_PCD_EN.pdf http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11583&LangID=E http://ec.europa.eu/development/icenter/repository/SEC_PDF_2009_1137_F_ACTE_PCD_EN.pdf The World Bank Legal Review132 lives and potential of poor women, men, and children, stating that it is “vital that all our policies address these issues in a more systematic and coherent way.”63 In paragraph 13(c), the AAA goes further: “Developing countries and do- nors will ensure that their respective development policies and programmes are designed and implemented in ways consistent with their agreed inter- national commitments on gender equality, human rights, disability and en- vironmental sustainability.” The 2011 outcome document from the Fourth High-Level Forum on Aid Effectiveness in Busan explicitly preserves the commitments of the AAA and, like the AAA, contains provisions on human rights. In addition, it provides for the right to development and confirms that the “common principles which—consistent with our agreed international commitments on human rights, decent work, gender equality, environmental sustainability and disability—form the foundation of our cooperation for ef- fective development.”64 The trend among such high-level statements and declarations is clearly in favor of recognizing human rights more explicitly and in terms of obliga- tions and international commitments. This movement promotes a vision of development and human rights that supports international policy coherence and that recognizes the potential impacts of actions in one policy realm on other areas. At the level of general political statements, therefore, the trend increasingly recognizes the relevance of human rights law obligations to de- velopment cooperation, including aid effectiveness. Development Policies At an institutional level, the policies of many development agencies and banks reflect the points of convergence, albeit in different ways. This section traces the links between human rights and development in these policies, noting the ways in which they approach the question of human rights as the subject of binding international law obligations. References to Human Rights Some policies contain general or preambular references to human rights, but the operational implications of these references remain unclear. Such references might cite the importance of human rights in the development process or in- clude provisions regarding the respect of human rights of particular groups; some even go so far as to define human rights by reference to the relevant international legal instruments. Examples are found in the indigenous peoples 63 Accra Agenda for Action, paragraph 3. 64 Busan Partnership for Effective Development Cooperation, Outcome Document (Dec. 1, 2011), paragraph 11, available at http://www.aideffectiveness.org/busanhlf4/images/stories /hlf4/OUTCOME_DOCUMENT_-_FINAL_EN.pdf. See also references to human rights and rights-based approaches in relation to the Millennium Declaration (paragraph 3) and the role of CSOs (paragraph 22). http://www.aideffectiveness.org/busanhlf4/images/stories/hlf4/OUTCOME_DOCUMENT_-_FINAL_EN.pdf http://www.aideffectiveness.org/busanhlf4/images/stories/hlf4/OUTCOME_DOCUMENT_-_FINAL_EN.pdf Human Rights and Development 133 policies of a number of multilateral development banks, such as the World Bank65 and the Inter-American Development Bank (IDB). The IDB Operational Policy on Indigenous Peoples makes numerous references to indigenous peo- ples’ rights,66 defined as “the rights of indigenous peoples and individuals, whether originating in the indigenous legislation issued by States, in other rel- evant national legislation, in applicable international norms in force for each country, or in the indigenous juridical systems of each people, hereinafter col- lectively referred to as the ‘applicable legal norms.’”67 The policy enumerates the relevant international and regional human rights instruments, also mak- ing reference to the jurisprudence of international human rights bodies.68 Human Rights as General Principles The frameworks of some agencies evidence a more strategic engagement with human rights, acknowledging their importance for development policy and practice69 and highlighting the links between human rights and sustainable 65 Operational Policy on Indigenous Peoples 4.10, the preamble of which reads: “This policy contributes to the Bank’s mission of poverty reduction and sustainable development by en- suring that the development process fully respects the dignity, human rights, economies, and cultures of Indigenous Peoples.” 66 http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=691261. 67 Id., paragraph 1.2. 68 Page 1, footnote 4 , IDB Operational Policy on Indigenous Peoples, reads: [T]hose international norms in force for each country are defined as follows: Interna- tional legislation includes, as in force for each country, the United Nations Universal Declaration of Human Rights (1948), the International Covenant on Civil and Politi- cal Rights (1966), the American Convention on Human Rights (1969), the International Covenant on Economic, Social, and Cultural Rights (1976), the International Conven- tion on the Elimination of all Forms of Racial Discrimination (1966), the Convention on the Rights of the Child (1990), the International Labor Organization (ILO) Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries (1957), ILO Convention 169 concerning Indigenous and Tribal Populations in Independent Countries (1989), Agenda 21 ad- opted by the United Nations Conference on Environment and Development (UNCED) (1992), and the International Convention on Biological Diversity (1992), as well as the corresponding international jurisprudence of the Inter-American Court of Human Rights or similar bodies whose jurisdiction has been accepted by the relevant coun- try. Other international instruments currently in preparation, such as the draft United Nations Declaration on the Rights of Indigenous Peoples and the draft American Dec- laration on the Rights of Indigenous Peoples, establish aspirational principles that may be taken into account to the extent that these instruments are finalized and subscribed by the relevant country. The UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly in September 2007. 69 NZAid, Human Rights Policy Statement, 4 (2002), available at http://www.nzaid.govt.nz /library/docs/nzaid-human-rights-policy.pdf; Danish Ministry of Foreign Affairs, Democratisation and Human Rights for the Benefit of the People: Strategic Priorities for Dan- ish Support for Good Governance, page 3 (2009), available at http://www.um.dk/NR /rdonlyres/D04B984F-41A2-4E7E-81C1-A35C09F95964/0/DraftDHRstrategyFINALVER SION030309.pdf. Denmark’s general policy on development, “The Right to a Better Life,” was adopted in 2012. The first of five strands of the strategy is freedom, democracy, and human rights. Available at http://um.dk/en/danida-en/goals/strategy/. http://www.nzaid.govt.nz/library/docs/nzaid-human-rights-policy.pdf http://www.um.dk/NR/rdonlyres/D04B984F-41A2-4E7E-81C1-A35C09F95964/0/DraftDHRstrategyFINALVERSION030309.pdf http://um.dk/en/danida-en/goals/strategy/ http://www.nzaid.govt.nz/library/docs/nzaid-human-rights-policy.pdf http://www.um.dk/NR/rdonlyres/D04B984F-41A2-4E7E-81C1-A35C09F95964/0/DraftDHRstrategyFINALVERSION030309.pdf http://www.um.dk/NR/rdonlyres/D04B984F-41A2-4E7E-81C1-A35C09F95964/0/DraftDHRstrategyFINALVERSION030309.pdf http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=691261 The World Bank Legal Review134 development.70 Others draw connections between the international human rights law framework and the MDGs71 and compliance with human rights principles and improvements in MDG-oriented development.72 Several agen- cies have well-established human rights mainstreaming policies73 or policies founded on a rights perspective.74 Such policies promote the integration of hu- man rights into country programs or existing aid interventions across sectors or promote the rights of certain groups such as children, women, minorities and indigenous peoples, or persons with disabilities. Human Rights–Based Approaches Some governments have adopted human rights–based approaches to develop- ment.75 At the global level, the United Nations is the most prominent example of a general rights-based approach to development,76 founded directly on the legal obligations enshrined in the UN Charter, the Universal Declaration, and 70 Human Rights and Australia’s Aid Program. From an aid perspective, development and hu- man rights are interdependent and mutually reinforcing. For development to be sustainable, individuals in developing countries must have secure and long-term access to the resources required to satisfy their basic needs, be they economic, social, cultural, civil, or political. At the broadest level, therefore, the entire Australian aid program contributes to the realiza- tion of human rights. See http://www.ausaid.gov.au/keyaid/humanrights.cfm. 71 Netherlands Ministry of Foreign Affairs, Human Dignity for All: A Human Rights Strategy for Foreign Policy. There are major similarities between the MDGs and the objectives of the human rights instruments. Both aim to eliminate hunger, improve access to education and health care, and improve the position of women, children, and other vulnerable groups. All the MDGs also have an equivalent in the international human rights instruments, par- ticularly the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the International Convention on the Rights of the Child (CRC). 72 BMZ, Human Rights in German Development Policy, BMZ Strategy Paper 4 (2011), at section 2.3; see also Germany’s Development Policy Action Plan on Human Rights (2008 –10). 73 See, for example, F. Uggla, Mainstreaming at Sida: A Synthesis Report 7, Sida Studies in Evalu- ation No. 5 (2007), available at http://www.oecd.org/dataoecd/0/40/39070485.pdf and http://www.sida.se/English/. 74 Sweden’s policy for democratic development and human rights in Swedish develop- ment cooperation, 2010–14. Memorandum Appendix to Government Decision 2010-01-2 (UF2009/33076/UP). “With this policy, the Government is raising its level of ambition and clarifying its aims concerning Swedish development cooperation in working towards the goal of democratic development and greater respect for human rights in developing countries.” Contrasting a rights-based approach and a rights-based perspective, see L. Munro, The “Human Rights-Based Approach to Programming”: A Contradiction in Terms? in Rights-Based Approaches to Development Exploring the Potential and the Pitfalls 187–206 (S. Hickey & D. Mitlin ed., Kumarian Press 2009). According to Munro, a rights-based approach insists that everything the organiza- tion does be based on human rights, whereas a rights-based perspective is less absolute. 75 For instance, a key aim of Germany’s Development Policy Action Plan on Human Rights (2008 –10) is “systematically integrating a human rights based approach into develop- ment.” Available at http://www.bmz.de/en/service/infothek/fach/konzepte/konzept167 .pdf?follow=adword. 76 See, especially, UNICEF’s rights-based approach to programming, Munro, supra note 74, at 193–202. For a critical review of human rights–based approaches in development, see M. Darrow & A. Tomas, Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation, 27 Hum. Rights Q. 471–538 (2005). http://www.ausaid.gov.au/keyaid/humanrights.cfm http://www.oecd.org/dataoecd/0/40/39070485.pdf http://www.bmz.de/en/service/infothek/fach/konzepte/konzept167.pdf?follow=adword http://www.bmz.de/en/service/infothek/fach/konzepte/konzept167.pdf?follow=adword http://www.sida.se/English/ Human Rights and Development 135 the core UN human rights treaties. The 2003 UN Interagency Common Un- derstanding of a Human Rights–Based Agreement77 was adopted by the UN Development Group (UNDG) to ensure the consistent application of a human rights–based approach by UN agencies, funds, and programs at global and regional levels, especially at the country level in relation to the UN Common Country Assessments/UN Development Assistance Frameworks (CCA /UNDAF), which were established to strengthen the coherence and effective- ness of the UN system’s contribution to countries’ development efforts. The Common Understanding establishes a set of principles that guide and define a human rights approach; it confirms the central importance of the international human rights treaty framework in all development cooperation programs.78 The secretary-general’s 2002 reform program included a decision, known as “Action 2,” to mainstream human rights across country programs.79 Ac- tion 2 was followed by further reform programs in 200580 and backed by the commitment of world leaders at the 2005 UN World Summit81 to mainstream human rights within their national policies and in the development programs of the United Nations. Several UN agencies have led efforts to catalog their experiences and guidance on integrating human rights and rights-based approaches.82 In November 2009, the UNDG established a Human Rights 77 The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies, available at http://www.undg.org/archive_docs /6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a _Common_Understanding_Among_UN.pdf. 78 Those principles are 1. All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declara- tion of Human Rights and other international human rights instruments. 2. Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process. 3. Development cooperation contributes to the development of the capacity to meet their obligations and/or of “‘rights-holders’’ to claim their rights. 79 Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, A/57/387 (Sep. 9, 2002), from which the strengthening and mainstreaming of human rights in the UN have come to be known as “Action 2.” Action 2, related to strengthening UN support for the promotion and protection of human rights worldwide, was adopted by UNDG, ECHA, and OHCHR in 2003 pursuant to the secretary-general’s report. Its main goal is to develop the capacity of UN humanitarian and development operations to strengthen national human rights promotion and protection systems consistent with international norms and principles. See http://www.un.org/events/action2/. 80 Paragraph 126 contains the commitment to integrate the promotion and protection of human rights into national policies and support the further mainstreaming of human rights through- out the UN system. See also Secretary-General, In Larger Freedom: Towards Security, Develop- ment and Human Rights for All (UN 2005), available at http://www.un.org/largerfreedom/. 81 2005 World Summit Outcome: Resolution adopted by the UN GA A/RES/60/1. 82 UNICEF Guidelines for Human Rights Based Programming Approach CF/EXD/1998-04 (Apr. 21, 1998), available at http://www.fao.org/righttofood/kc/downloads/vl/docs /212951.pdf; UNDP, Human Rights in UNDP: A Practice Note (Apr. 2005), available at http:// http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_Among_UN.pdf http://www.un.org/events/action2/ http://www.fao.org/righttofood/kc/downloads/vl/docs/212951.pdf http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_Among_UN.pdf http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_Among_UN.pdf http://www.fao.org/righttofood/kc/downloads/vl/docs/212951.pdf http://www.un.org/largerfreedom/ http://www.undp.org/governance/docs/HRPN_English.pdf The World Bank Legal Review136 Mainstreaming mechanism, supported by a multidonor trust fund, to coor- dinate UN systemwide work on human rights in development cooperation. Human Rights Obligations as a Policy Frame Some policies integrate human rights explicitly in terms of international law obligations. In these policies, human rights have potentially far-reaching impli- cations because the policies rely on the legally binding quality of human rights to ground their approach, even if the references are more general and operate as an overall frame. For example, a tenet of the Austrian Development Coop- eration (ADC) Human Rights Policy Document (2006) establishes “[h]uman rights as a normative principle, as a programming principle, and as an in- strument for evaluating interventions.” The ADC policy states: “A stronger link between these two areas offers a legally based framework and a planning instrument for policies and programs. It steers the focus in poverty reduction away from the needs of the poor towards the obligations of the state and the capabilities/potential of citizens to demand their rights.” Like a number of other bilateral aid agencies, the Swedish International Development Coopera- tion Agency (SIDA) has a well-established practice of mainstreaming human rights.83 In keeping with this practice, Sweden’s policy for democratic devel- opment and human rights in Swedish development cooperation84 highlights the human rights perspective,85 which it defines based on the UN Universal Declaration of Human Rights and international and regional human rights conventions, and further confirms that “[a]lthough contradictions or tension may exist between different rights, states cannot choose to disregard certain of their obligations under international law.”86 New Zealand’s International Aid and Development Agency document Human Rights Policy Statement (2002) and its Human Rights Implementa- tion Plan of Action 2004–09 similarly confirm the role of donor and partner human rights treaty obligations in linking human rights and development. Likewise, the policy of German development cooperation rests on common human rights law obligations. Germany’s Development Policy Action Plan www.undp.org/governance/docs/HRPN_English.pdf. The UNDP Strategic Plan, 2008–11 makes numerous references to human rights and clarifies the role of the program: “16. Un- derscores that while UNDP should uphold universal United Nations norms and standards, including those related to human rights, UNDP does not have any normative or monitor- ing role with regard to human rights.” UNDP Strategic Plan, 2008–2011: Accelerating Global Progress on Human Development, DP/2007/43/Rev.1, 4 (May 22, 2008). More generally, see E. Mandeville, United Nations Development Programme, in Encyclopedia of Human Rights 150 –57 (D. Forsythe ed., Oxford U. Press 2009). 83 See, for example, Uggla, supra note 73. 84 Memorandum Appendix to Government Decision 2010-01-2 (UF2009/33076/UP). “With this policy, the Government is raising its level of ambition and clarifying its aims concerning Swedish development cooperation in working towards the goal of democratic development and greater respect for human rights in developing countries.” 85 See Munro, supra note 74. 86 SIDA, Memorandum Appendix to Government Decision 2010-01-2, 6. http://www.undp.org/governance/docs/HRPN_English.pdf Human Rights and Development 137 on Human Rights 2008–2010 highlights the shared obligations of donors and partners under human rights treaties: Human rights provide us with legally binding standards to which we, in common with our partner countries, have committed our- selves inside and outside our borders. We have jointly ratified inter- national human rights treaties and so it is our joint responsibility to work for the respect, protection and fulfillment of human rights. By meeting our obligations, we want to help our partners specifically and effectively to meet theirs.87 The 2011 BMZ strategy paper Human Rights in German Development Policy supports this view, affirming that human rights form the overarching framework for development policy. It states that the implementation of hu- man rights conventions is a legally binding obligation and that this “provides the binding frame of reference for Germany’s development cooperation with partner countries.”88 Among multilaterals, the UN system’s human rights approach89 and UN guidance in development activities are broadly based on human rights treaty obligations,90 even if the broader question of the UN’s own human rights ob- ligations remains contested.91 A sophisticated example is UNICEF’s human rights–based programming approach, which treats the Convention on the Rights of the Child (CRC) as a central programming document, relying on it di- rectly and explicitly. In addition, although the Committee on the Rights of the Child is the monitoring body established by the CRC, and although UNICEF does not have a formal role in monitoring CRC compliance, UNICEF has, over time, become active in all stages of the reporting process. In this respect, the UNICEF example illustrates the possibility of institutional coordination be- tween development programming and treaty monitoring activities. The position of other international organizations has similarly signaled broader recognition of the role of human rights in development. The OECD Development Assistance Committee’s (2007) Action-Oriented Policy Paper on Human Rights and Development (AOPP) is predicated on a vision of human rights as integral to development and of human rights and equitable, sus- tainable development being mutually reinforcing. This approach is squarely 87 BMZ, Development Policy Action Plan on Human Rights 2008–2010, 4. The policy also includes a comprehensive list of human rights treaty resources (18–19). 88 BMZ Human Rights in German Development Policy, BMZ Strategy Paper 4, introductory summary, paragraph 2 (2009). 89 See supra note 77. 90 See, for example, UNDAF guidelines available at www.undg.org. Within the UNDG, imple- menting a human rights–based approach to development programming is the focus of the Human Rights Mainstreaming Mechanism (HRM); see also the UN Common Learning Pack- age on Human Rights–Based Approach. 91 For a thorough and thoughtful analysis of this question in the context of the UN’s develop- ment operations, see M. Darrow & L. Arbour, The Pillar of Glass: Human Rights in the Develop- ment Operations of the United Nations, 103 Am. J. Intl. L. 446 (2009). www.undg.org The World Bank Legal Review138 based on the international human rights law framework: “Human rights con- stitute a unique, internationally shared and accepted normative framework, reflecting global moral and political values. International human rights law has evolved to protect and safeguard the integrity and dignity of the person, by establishing legal obligations on states.” The first of 10 principles, intended to serve as a basic orientation on human rights in key development areas and activities where donor harmonization is of particular relevance, states: “Build a shared understanding of the links between human rights obligations and development priorities through dialogue.” Another acknowledgment of the place of human rights obligations in de- velopment policy, albeit indirectly and from a private sector perspective, is the International Finance Corporation (IFC) Policy on Enviromental and Social Sustainability, which is part of the IFC Sustainability Framework.92 The 2012 policy recognizes the responsibility of business to respect human rights inde- pendently of state duties to respect, protect, and fulfill human rights.93 In a footnote to the term “human rights,” the policy states that “for the purposes of this Policy, IFC shall be guided by the International Bill of Rights and the eight core conventions of the International Labour Organization.”94 Human Rights as Operational Norms in Development Policy Frameworks Despite the broad support for human rights adduced in the policies reviewed above, not all such provisions translate into a reliance on human rights in a direct operational sense. Indeed, not all agencies with human rights–related policies accept that they are under a legal obligation to promote and respect human rights, and intrinsic arguments for including human rights in develop- ment cooperation are not always limited to legal ones.95 Subtle differences in terminology are also discernible in some policies’ treatment of human rights in terms of responsibilities rather than in more definite legal terms such as obligations with specific policy consequences resulting from their invocation. The policies of a number of agencies and institutions are distinguished by the strength of the legal and policy provisions integrating human rights, with the potential for significant operational implications. At their strongest, such policies emphasize human rights as a shared legal framework, highlight- ing both partner and donor obligations under international human rights law and offering concrete operational entry points for their application in devel- opment activities. 92 http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate _site/IFC+Sustainability/Sustainability+Framework. 93 IFC Policy on Environmental and Social Sustainability ( Jan. 1, 2012), paragraph 12, avail- able at http://www1.ifc.org/wps/wcm/connect/7540778049a792dcb87efaa8c6a8312a/SP _English_2012.pdf?MOD=AJPERES. 94 Id. 95 OECD DAC, Integrating Human Rights into Development: Donor Approaches, Challenges and Ex- periences 29 (OEDC 2006), study by L.-H. Piron & T. O’Neil. http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_site/IFC+Sustainability/Sustainability+Framework http://www1.ifc.org/wps/wcm/connect/7540778049a792dcb87efaa8c6a8312a/SP_English_2012.pdf?MOD=AJPERES http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_site/IFC+Sustainability/Sustainability+Framework http://www1.ifc.org/wps/wcm/connect/7540778049a792dcb87efaa8c6a8312a/SP_English_2012.pdf?MOD=AJPERES Human Rights and Development 139 The European Union provides an example of a policy approach connect- ing the dictates of the international human rights law frameworks and the pol- icy requirements applicable in development cooperation. Although its trade and external policies have been critiqued for internal incoherencies,96 for their potential negative impacts on human rights in developing countries,97 and for failing to fully integrate human rights, the EU has, since 1995, adopted “a distinct policy” on human rights in its external relations. As a result a human rights clause98 is introduced into all trade and development agreements with third countries or nonmembers,99 making the protection of human rights an es- sential element of any trade and development agreement.100 As with a number of the bilateral examples discussed above, the centrality of human rights to EU development cooperation draws explicitly on legal commitments that are both internal and external to the EU itself,101 anchoring human rights opera- tionally in development through the treaty obligations of member states.102 Thus, Article 9 of the Cotonou Agreement makes the respect of human rights an essential element of the agreement, basing that clause explicitly on interna- tional obligations and commitments concerning respect for human rights.103 96 B. Mahnkopf, EU Multilateral Trade Policy: Neither Coherent nor Development Friendly, Global Labour University Working Paper No. 2 (Feb. 2008). 97 J. Nwobike, The Application of Human Rights in African Caribbean and Pacific–European Union Development and Trade Partnership, 6(10) German L.J. 1381 (2005). Examples include the fu- ture potential human rights impact (ex ante study) of EU economic partnership agreements on dairy and honey farmers in Zambia and the right to food of milk and maize farmers in Uganda (2009). 98 “The essential element” of an agreement, or the “human rights essential element clause.” See EU Council Decision 7255/95. Human Rights Clauses in Community Agreements with Non- member Countries (May 24, 1995). See also Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Commu- nity and Third Countries COM (95) 216 (May 23, 1995). 99 M. Cremona, Human Rights and Democracy Clauses in the EC’s Trade Agreements, in The Euro- pean Union and World Trade Law after the GATT Uruguay Round (N. Emiliou & D. O’Keefe ed., Wiley 1996); E. Reidel & M. Will, Human Rights Clauses in External Agreements of the EC, in The EU and Human Rights (P. Alston ed., Oxford U. Press 1999). 100 See also Cotonou Agreement—partnership agreement between the EC and ACP countries, concluded in 2000, a revised version of which entered into force on July 1, 2008. Negotiations for a second round of revisions were concluded on March 19, 2010. 101 http://www.ihrnetwork.org/eu-development-policies_215.htm. Internal commitments are based on the Treaty on European Union and were confirmed in the Treaty of Amsterdam and the EU Charter of Fundamental Rights and the European Instrument for Democratization and Human Rights (2006). 102 According to the International Human Rights Network, “Human rights are central to EU Development Cooperation matching similar commitments to its humanitarian aid and Common Foreign and Security Policy. The policies flow from the legal obligations of its Member States, as well as from EU treaty provisions which recognize human rights as com- mon values underpinning EU partnership and dialogue with third countries.” See http:// www.ihrnetwork.org/eu-development-policies_215.htm. 103 Article 9 of the Cotonou Agreement provides: Essential Elements and Fundamental Element 1. Cooperation shall be directed towards sustainable development centered on the hu- man person, who is the main protagonist and beneficiary of development; this entails http://www.ihrnetwork.org/eu-development-policies_215.htm http://www.ihrnetwork.org/eu-development-policies_215.htm http://www.ihrnetwork.org/eu-development-policies_215.htm The World Bank Legal Review140 The centrality of human rights treaties is similarly reflected in the 2007 EU European Instrument for Democracy and Human Rights. This instrument establishes a mechanism under which the community provides assistance within the framework of the community’s policy on development coopera- tion and economic, financial, and technical cooperation with third countries, consistent with EU foreign policy as a whole, contributing to the develop- ment and consolidation of democracy and the rule of law and of respect for all human rights and fundamental freedoms.104 The instrument draws directly from international and regional human rights legal frameworks,105 and its aims are squarely based on human rights106 and the international and regional legal frameworks that enforce them.107 Other developments in the EU con- text reveal the increasing relevance of international human rights standards respect for and promotion of all human rights. Respect for all human rights and fun- damental freedoms, including respect for fundamental social rights, democracy based on the rule of law and transparent and accountable governance are an integral part of sustainable development. 2. The Parties refer to their international obligations and commitments concerning re- spect for human rights. They reiterate their deep attachment to human dignity and human rights, which are legitimate aspirations of individuals and peoples. Human rights are universal, indivisible and inter-related. The Parties undertake to promote and protect all fundamental freedoms and human rights, be they civil and political, or economic, social and cultural. In this context, the Parties reaffirm the equality of men and women. . . . Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and interna- tional policies of the Parties and constitute the essential elements of this Agreement. . . . These areas will also be a focus of support for development strategies. The Community shall provide support for political, institutional and legal reforms and for building the capacity of public and private actors and civil society in the framework of strategies agreed jointly between the State concerned and the Community. 104 Regulation (EC) No. 1889/2006 of the European Parliament and of the Council of December 20, 2006, on establishing a financing instrument for the promotion of democracy and human rights worldwide, 29.12.2006 EN Official J. of the European Union L. 386/1. 105 Paragraph 7 provides: “The Community’s contribution to the development and consolida- tion of democracy and the rule of law, and of respect for human rights and fundamental freedoms is rooted in the general principles established by the International Bill of Human Rights, and any other human rights instrument adopted within the framework of the United Nations, as well as relevant regional human rights Instruments.” 106 Paragraph 2(a) provides: “Such assistance shall aim in particular at (a) enhancing the re- spect for and observance of human rights and fundamental freedoms, as proclaimed in the Universal Declaration of Human Rights and other international and regional human rights instruments.” 107 Paragraph 2(b) provides: “Such assistance shall aim in particular at (a) enhancing the re- spect for and observance of human rights and fundamental freedoms, as proclaimed in the Universal Declaration of Human Rights and other international and regional human rights instruments.” However, it is worth noting that the recent EU Communication on the MDGs does not highlight the role of human rights frameworks in any significant way, other than to mention that “[MDGs] emphasize the importance of a Human Rights based approach to development.” European Commisssion, A Twelve-Point EU Action Plan in Support of the Mil- lennium Development Goals, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Regions, 6 (2010). See also Annual Action Programme 2011 for the European Instrument for the Promotion of Democracy and Human Rights Worldwide (EU Commission Mar. 29, 2011). Human Rights and Development 141 in fostering sustainable development in EU trade policy. Examples include the European Parliament resolution that encourages greater cooperation at the multinational level between the World Trade Organization (WTO) and the main UN institutions in the human rights field. This resolution states that the Parliament considers that closer links with the Office of the United Nations High Commissioner for Human Rights via special procedures would be par- ticularly useful to provide a multilateral trade framework that would enhance respect for human rights and considers, similarly, that the high commission’s expertise could be taken into account by WTO panels and the appeals body when cases of serious breaches of human rights are observed. In addition, the Parliament’s resolution considers that the Human Rights Council’s universal periodic review should be a useful tool to monitor compliance with human rights provisions in international trade agreements and supports the practice of including legally binding human rights clauses in the EU’s international agreements.108 The EU development policy landscape was further defined by new poli- cies on the future of development policy and the instrument of budget support in October 2011. Increasing the Impact of EU Development Policy: An Agenda for Change seeks to focus aid on fewer countries and fewer sectors while prioritiz- ing human rights, democracy, and other key elements of good governance.109 The EU Commission’s 2011 position on budget support to third countries110 reiterates the linkage between human rights and development, indicating that its proposed approach “would lead to enhanced importance of human rights, democracy and good governance trends in determining the mix of instru- ments and aid modalities at country level.”111 The European Investment Bank (EIB) provides another example of broad legal and policy commitment to human rights. As an EU institution, EIB is bound by the EU Charter of Fundamental Rights and takes the charter as a point of departure.112 EIB policy integrates an approach to human rights focused on respect for environmental, social, and economic rights and takes 108 European Parliament resolution of November 25, 2010, on human rights and social and en- vironmental standards in international trade agreements (2009/2219 [INI]). For a critical view of the traditional models on the value added of human rights in trade, see A. Lang, The Role of the Human Rights Movement in Trade Policy-Making: Human Rights as a Trigger for Policy Learning, 5 New Zealand J. Pub. Intl. Law. 77–102 (2007). 109 European Commission, Increasing the Impact of EU Development Policy: An Agenda for Change (EU Commission Oct. 13, 2011), available at http://ec.europa.eu/europeaid/what/devel opment-policies/documents/agenda_for_change_en.pdf. 110 European Commission, The Future Approach to EU Budget Support to Third Countries (EU Commission Oct. 13, 2011). 111 The policy provides that “the EU should assess whether pre-conditions exist to entrust Good Governance and Development Contracts to a partner country, i.e.; whether fundamental values of human rights, democracy and rule of law or a clear path towards international standards exist and whether such a Contract could clearly act as a driver to accelerate this movement.” 112 http://www.eib.org/about/news/business-and-human-rights.htm. http://ec.europa.eu/europeaid/what/development-policies/documents/agenda_for_change_en.pdf http://www.eib.org/about/news/business-and-human-rights.htm http://ec.europa.eu/europeaid/what/development-policies/documents/agenda_for_change_en.pdf The World Bank Legal Review142 human rights considerations into account in its project evaluations. The EIB is reviewing its existing project social performance standards in light of the prin- ciples of the UN Respect, Protect, and Remedy framework113 and will update existing project guidelines and operational practices based on the outcome of that review. The direct links between human rights and development frameworks are evident in the 2005 framework document of the New Economic Partnership for Africa’s Development (NEPAD),114 which contains several references to hu- man rights as a foundation,115 objective, and responsibility of the mechanism. It recognizes that “development is impossible in the absence of true demo- cracy, respect for human rights, peace, and good governance.”116 The African Peer Review Mechanism (APRM),117 which operates as part of the NEPAD, links the final stage of its review to existing human rights mechanisms such as the African Commission on Human Rights.118 In this, the African-led policy is an example of a framework that explicitly links development with human rights and human rights obligations as well as the regional institutional mech- anism that monitors them.119 Some donors specify that human rights obligations operate as minimum legal standards against which their development activities are judged for con- sistency. In these instances, human rights treaty obligations are operationally connected with the core of development cooperation policies and activities. An example of this is Canada’s 2008 Official Development Assistance Account- ability Act, which contains a human rights clause requiring development op- erations financed by Canada to be consistent with international human rights standards.120 113 See infra note 164. 114 http://www.nepad.org/home/lang/en. 115 Id., paragraph 180. The NEPAD has, as one of its foundations, the expansion of democratic frontiers and the deepening of the culture of human rights. A democratic Africa will become a pillar of world democracy, human rights, and tolerance. The resources of the world cur- rently dedicated to resolving civil and interstate conflict could therefore be freed for more rewarding endeavors. 116 Id., paragraph 79. 117 An important accountability-related mechanism to the NEPAD, the APRM is an instru- ment voluntarily acceded to by member states of the African Union (AU) as an African self- monitoring mechanism. The APRM is central to the NEPAD process for the socioeconomic development of Africa. 118 The APRM base document, available at http://www.chr.up.ac.za/hr_docs/aprm/docs /book3.pdf, Article 25, states: “Six months after the report has been considered by the Heads of State and Government of the participating member countries, it should be formally and publicly tabled in key regional and sub-regional structures such as the Pan-African Parliament, the African Commission on Human and Peoples’ Rights, the envisaged Peace and Security Council and the Economic, Social and Cultural Council (ECOSOCC) of the African Union.” 119 See analogies with the IDB policy linkages to the Inter-American Court of Human Rights discussed in the subsection References to Human Rights. 120 Canada, 2008 Official Development Assistance Accountability Act, which came into force on June 28, 2008, states in Section 4(1): “Official development assistance may be provided only if http://www.chr.up.ac.za/hr_docs/aprm/docs/book3.pdf http://www.nepad.org/home/lang/en http://www.chr.up.ac.za/hr_docs/aprm/docs/book3.pdf Human Rights and Development 143 The European Bank for Reconstruction and Development (EBRD) adopts a similar approach, establishing direct operational implications for human rights obligations in development activities. Unlike other multilateral devel- opment banks (MDBs), the Agreement Establishing the EBRD sets forth a po- litical mandate for the EBRD to further the transition to multiparty democracy and to encourage a respect for human rights, making an explicit provision for human rights in its preamble.121 Thus, “the preamble and the phrasing of Ar- ticle 1 seem to imply that the founding members expected that the EBRD in its operations would be sensitive to the human rights of residents in the countries of its operation.”122 Building on its foundational agreement, the EBRD’s 2008 Environmental and Social Policy incorporates human rights as a minimum standard defined in accordance with human rights instruments. “The EBRD will not knowingly finance projects that would contravene obligations under international treaties and agreements related to environmental protection, human rights and sustainable development as identified through project appraisal.”123 The fact that the baseline underpinning this policy is rooted in human rights treaties has not insulated the EBRD from NGO criticism that the Bank’s commitment to human rights is weak in practice.124 A similar example is found in the Council of Europe Development Bank (CEB), administered under the authority of the Council of Europe, which has the protection and promotion of human rights as one of its principal aims. the competent minister is of the opinion that it (a) contributes to poverty reduction; (b) takes into account the perspectives of the poor; and (c) is consistent with international human rights standards.” 121 The preamble of the agreement establishing the EBRD provides that contracting parties are: [c]ommitted to the fundamental principles of multiparty democracy, the rule of law, re- spect for human rights and market economics; . . . Welcoming the intent of Central and Eastern European countries to further the practical implementation of multiparty de- mocracy, strengthening democratic institutions, the rule of law and respect for human rights and their willingness to implement reforms in order to evolve towards market- oriented economies. Article 1 provides: Purpose In contributing to economic progress and reconstruction, the purpose of the Bank shall be to foster the transition towards open market-oriented economies and to promote private and entrepreneurial initiative in the Central and Eastern European countries committed to and applying the principles of multiparty democracy, pluralism and mar- ket economics. 122 A. McAuley, European Bank for Reconstruction and Development, in Oxford Encyclopedia of Human Rights vol. 2, 169, 171 (D. Forsythe ed., Oxford U. Press 2009). 123 EBRD, Environmental and Social Policy, paragraph 9. Paragraph 37 specifies that EBRD’s country and sector strategies should summarize the principal environmental, human rights, gender equality, and other social issues in the relevant country or sector and sets out the EBRD’s proposals for taking these issues into account in its operations, where appropriate. See http://www.ebrd.org/pages/about/principles/sustainability/policy.shtml. 124 For a brief discussion of such critiques, see A. McAuley, The European Bank for Reconstruction and Development, in Oxford Encyclopedia of Human Rights 172 (D. Forsythe ed., Oxford U. Press 2009). http://www.ebrd.org/pages/about/principles/sustainability/policy.shtml The World Bank Legal Review144 The CEB is institutionally grounded in human rights, and the secretary gen- eral of the Council of Europe is required to review all project applications to assess whether they conform to the political and social aims of the Council of Europe. Thus, the CEB’s human rights framework includes loan regula- tions that require projects to conform to provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter. 125 In addition, the CEB Environmental Policy, which describes the environmental and social principles that guide its project-related opera- tions, connects socially and environmentally sustainable development to hu- man rights and mandates that “the CEB will not knowingly finance projects which are identified as undermining human rights.”126 In a similar vein, albeit domestically rather than externally focused, the Council of Europe Parliamen- tary Assembly adopted a resolution inviting its 47 member states to be guided by OHCHR’s 2006 Principles and Guidelines on a Human Rights Approach to Poverty Reduction in their policymaking and budget decisions.127 Human Rights and Development: Initial Observations on Regime Interaction As the foregoing review illustrates, the interaction of human rights and de- velopment regimes is significant and increasing but widely divergent. It is difficult, however, to discern an automatic consequence from the mere men- tion of human rights (or even human rights obligations) in a development pol- icy framework. Even the adoption of a human rights policy or human rights mainstreaming approach does not necessarily have immediate or concrete op- erational consequences. Not every such policy or provision requires particular forms of assessments or analyses, nor will each generate specific guidelines or parameters in financing decisions or dialogues. The review reveals the limited engagement of most development policy frameworks with human rights as binding legal obligations. In many instances, human rights are referred to in general or preambular terms; in others, they receive mention as principles or cross-cutting themes—none of which has a clear legally binding underpinning. Moreover, more explicit and elaborate ar- ticulations of the links between human rights and development, such as in 125 CEB, Policy for Loan and Project Financing, adopted June 2006 under Administrative Council Resolution 1495, Council of Europe, Paris, available at http://www.coebank.org /Upload/legal/en/ppfp_english.pdf. These CEB contractual covenants are a unique fea- ture: CEB can suspend, cancel, and/or demand early reimbursement of a loan if a project’s implementation leads to a human rights violation. (See, for example, Article 3.3(g)(iii) of the CEB loan regulations.) 126 CEB, Environmental Policy, available at http://www.coebank.org/Upload/infocentre /brochure/en/environmental_policy.pdf#search=%22environmental%22. 127 Council of Europe Parliamentary Report and Draft Resolution, Doc. 12555, Combating Pov- erty (Mar. 28, 2012), paragraph 7, provides: “The Assembly strongly supports the Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies proposed by the Office of the United Nations High Commissioner for Human Rights (UNHCHR) and invites member states to take due account of the Guidelines in their public policymaking and relevant budgetary decisions.” http://www.coebank.org/Upload/legal/en/ppfp_english.pdf http://www.coebank.org/Upload/infocentre/brochure/en/environmental_policy.pdf#search=%22environmental%22 http://www.coebank.org/Upload/legal/en/ppfp_english.pdf http://www.coebank.org/Upload/infocentre/brochure/en/environmental_policy.pdf#search=%22environmental%22 Human Rights and Development 145 the declaration of the right to development and the various resolutions built upon it, are not legally binding. Most of the policy examples that integrate hu- man rights obligations do so in ways confined to particular policies, themes, or groups, or in a manner so general that their specific impacts are hard to identify. The operational impacts of human rights legal obligations are only beginning to be explored in policies like those of the European Union or Can- ada, where human rights obligations are operative in a direct legal and policy sense and they trigger some immediate consequence or action. In addition, although the trend in both political statements and develop- ment policies appears to be greater integration of human rights in develop- ment policy and a gradual recognition of the potential relevance of human rights obligations in development contexts, the majority of development pol- icy frameworks evidence the separability of human rights and development and the fragmentation of international law. Human Rights, Development, and the Fragmentation of International Law Fragmentation of International Law: Causes and Consequences Why are there such significant divergences and disconnects between human rights and development? Why do these disconnects persist when the same countries are parties to the human rights treaties and members of develop- ment agencies and banks?128 The reasons are similar to those underpinning the fragmentation of law in general. Some practitioners opine that not only has there never been a single global legislature or appellate court to mold a unified body of law, but there has never been a uniform will for such a sys- tem. Instead, states have implicitly or explicitly conceived of particular issues and problems and responded by agreeing to new laws and supporting inter- national organizations.129 Some observers go further and argue that the “un- wieldy and intransigent nature of regimes is often intentional and may reflect a wish by powerful states to protect their dominance.”130 Other reasons for fragmentation and impediments to coherent regime interaction include lack of coordination at the domestic level, states adopting inconsistent national po- sitions across different international fora, and a lack of transparency within particular regimes.131 128 On the diversity of policy formulations that emanate from international organizations, see Alston, supra note 17, at 95–106, who argues that diversity can be explained by “a desire to maintain as much policy flexibility as possible. This helps to accommodate a broad array of approaches on the part of different governments, gives the organization itself considerable leeway to define or redefine its priorities, and makes it easier to move away from failed poli- cies towards new ones” (97). 129 M. Young, Introduction, in Young, supra note 1, at 2. 130 Id., at 10. 131 Young, supra note 1, at 95. The World Bank Legal Review146 The specific reasons for the divergences between human rights and de- velopment regimes are thus complex and multifaceted, varying across institu- tions and over time.132 They are often connected with historically entrenched understandings of institutional roles and mandates133 and linked to the pre- dominance of different disciplines, evidence bases, premises, and values within those different regimes.134 “Functional differentiation leads to path de- pendency, higher transaction costs, ‘tunnel vision’ and even solipsistic and imperial tendencies within regimes.”135 The separateness may be rooted in legal factors, such as the emergence of the relevant frameworks at different times; the fact that laws (treaties) are implemented by different institutions with different powers of enforcement and relative strengths; the absence of a uniform ratification of the laws (treaties) by all member states;136 and the fact that the laws aim to fulfill particular sets of preferences within the interna- tional legal system that may not be in harmony.137 In the case of development agencies, these factors are underscored by es- tablished legal interpretations of constitutive instruments, which in some cases include strong political prohibitions that have special relevance for human rights.138 Governments take very different positions on human rights, even more so when human rights are connected with development interventions or aid resource allocations. Indeed, the reluctance to connect development co- operation policies and activities with human rights legal obligations may be attributable to the clarity, enforceability, and lack of flexibility such obligations impose. They may also be reinforced by perceptions of human rights obliga- tions as less amenable to measurement or less empirically based. What are the consequences of such fragmentation? What practical prob- lems or risks does it generate, and how do these translate for human rights in the context of development? 132 S. McInerney-Lankford, Human Rights and Development: Some Institutional Perspectives, 25(3) Netherlands Q. Hum. Rights 459 (2007). 133 Y. Yokata, Non-political Character of the World Bank, 20 Japanese Ann. Intl. L. 39 (1976). 134 See D. Seymour & J. Pincus, Human Rights and Economics: The Conceptual Basis for Their Com- plementarity, 4 Dev. Pol. Rev. 387–405 (2008). 135 Young, Introduction, in Young, supra note 1, at 11. 136 See discussion of parallel membership below. 137 Young, supra note 1, at 88–89. 138 See, for example, in relation to the IBRD, I. Shihata, Political Activity Prohibited, in World Bank Legal Papers 219–44 (Martinus Nijhoff 2000); I. Shihata, The Exclusion of Political Consideration in the Bank’s Articles—Its Meaning and Scope in the Context of the Institutional Evolution, in The World Bank in a Changing World: Selected Essays 62–78 (Martinus Nijhoff 1995). Also relevant in this context is I. Shihata, Human Rights, Development and International Financial Institutions, in The World Bank in a Changing World: Selected Essays and Lectures Volume II 553–78 (Martinus Nijhoff 1995), to be contrasted with EBRD, Political Aspects of the Mandate of the European Bank for Reconstruction and Development (1991), available at http://www.ebrd.org/pages /research/publications/institutional/procedures.shtml, and Political Aspects of the Mandate of the European Bank for Reconstruction and Development in Relation to Ethnic Minorities (1991), available at http://www.ebrd.org/pages/research/publications/institutional/ethnic.shtml. http://www.ebrd.org/pages/research/publications/institutional/procedures.shtml http://www.ebrd.org/pages/research/publications/institutional/ethnic.shtml http://www.ebrd.org/pages/research/publications/institutional/procedures.shtml Human Rights and Development 147 Although some commentators have argued that fragmentation is inevi- table139 and endemic to international law,140 and others note the ways in which it may benefit specialized regimes,141 many point to the risks of systemic ambi- guity and incoherence. The first and most obvious consequence of fragmenta- tion is the undermining of coherence in international law in general and in- ternational policy coherence in particular.142 Policy coherence aims to prevent duplication and avoid contradiction in government policy actions by promot- ing consistency across related subject matters and assessing the impacts of di- verse areas of international policy on one another.143 It operates both vertically —ensuring that states implement treaty obligations through laws, policies, and processes—and horizontally—ensuring that state policies across sectors, departments, or ministries are consistent or compatible with one another. Promoting international policy coherence is an objective of growing im- portance for international development agencies and organizations. In the context of development, this objective aims to “ensure that government poli- cies are mutually supportive of the countries’ development goals.”144 It implies “strengthening synergies and weeding out inconsistencies between non-aid policies and development objectives.”145 The EU has made policy coherence a point of emphasis in development, particularly since the Lisbon Treaty;146 in 139 A growing body of literature is emerging on global administrative law that addresses, among other themes, the constraints and enduring reasons for “nonconvergence” and assesses the normative case for and against the promotion of a unified field of global administrative law; see, for example, B. Kingsbury, N. Krisch, & R. Stewart, The Emergence of Global Administrative Law, 68 L. & Contem. Probs. 15 (2005); and B. Kingsbury, Introduction: Global Administrative Law in the Institutional Practice of Global Regulatory Governance, in World Bank Legal Review International Financial Institutions and Global Legal Governance 3 –33 (World Bank 2011). 140 S. Humphreys, Technology Transfer in Three Regimes, in Young, supra note 1, at 195, citing the ILC Study Group, supra note 42. 141 B. Simma, Fragmentation in a Positive Light, 25 Mich. J. Intl. L. 845 (2004). 142 See, for example, M. Salomon, Global Responsibility for Human Rights 106 (Oxford U. Press 2007). 143 http://www.oecd.org/document/54/0,2340,en_2649_33721_35320054_1_1_1_1,00.html. This idea has relevance to efforts in the UN human rights mechanisms to enhance coherence and harmonization among treaty bodies; see UN Report of the Working Group on Harmonisa- tion of Working Methods of Treaty Bodies ( Jan. 9, 2007); Report on Working Methods of the Hu- man Rights Treaty Bodies Relating to State Party Reporting Processes: Note by the Secretariat, HRI /MC/2007/4 ( Jun. 1, 2007); and Report on the Implementation of Recommendations of the 5th Intercommittee Meeting and the 18th Meeting of Chair Persons, Note by the Secretariat, HRI /MC/2007/6 (May 29, 2007). 144 OECD, Declaration on Policy Coherence for Development, C/MIN(2008)2/FINAL ( Jun. 4, 2008). 145 European Commission, EU 2011 Report on Policy Coherence for Development, Commission Staff Working Paper (Dec. 15, 2011). 146 Article 208 of the Lisbon Treaty requires that “[t]he Union shall take account of the objec- tives of development cooperation in the policies that it implements which are likely to affect developing countries.” Some observers have voiced criticism of the implementation of this objective, including in relation to human rights. See http://coherence.concordeurope.org /pdf/Concord_Report_15_AW_LORES.pdf. See also EU Report on Policy Coherence for Devel- opment (2007), available at http://ec.europa.eu/development/icenter/repository/Publica tion_Coherence_DEF_en.pdf. http://www.oecd.org/document/54/0,2340,en_2649_33721_35320054_1_1_1_1,00.html http://coherence.concordeurope.org/pdf/Concord_Report_15_AW_LORES.pdf http://ec.europa.eu/development/icenter/repository/Publication_Coherence_DEF_en.pdf http://coherence.concordeurope.org/pdf/Concord_Report_15_AW_LORES.pdf http://ec.europa.eu/development/icenter/repository/Publication_Coherence_DEF_en.pdf The World Bank Legal Review148 May 2010, the European Parliament created the Standing Rapporteur on Policy Coherence for Development, responsible for facilitating interaction between the parliamentary committee on development and other committees. Policy coherence for development focal points have also been appointed within the European Commission Directorates-General and the External Action Service. In 2008, the ministers of Organization for Economic Cooperation and Development (OECD) countries issued a Declaration on Policy Coherence for Development, which acknowledges the increased economic interdepen- dence among countries, as well as between development policies and oth- er areas of public policy.147 Although it does not mention human rights, the declaration stresses the importance of policy coherence in achieving interna- tionally agreed-upon development goals, including those contained in the Millennium Declaration,148 which includes commitments related to human rights. The OECD launched an international platform for policy coherence in development:149 “OECD countries recognize the need for greater coherence in policies across sectors that affect developing countries. Aid alone cannot address the needs of the developing world. Policies in areas like agriculture, trade, investment, migration and others have a profound impact on develop- ing countries, yet they often work at cross-purposes.” Fragmentation and policy incoherence are apposite in the context of hu- man rights, including threats to “the quality and coherence of international law as a whole and resulting in serious conflicts and tensions between pro- grammes and principles.”150 Such fragmentation has potential impacts on the levels of protection afforded by international human rights law through the emergence of “special normative regimes in various areas of technical cooper- ation described as ‘self contained’ in order to highlight their operation outside the general international law.”151 This in turn potentially leads to “the erosion of international law, conflicting jurisprudence, forum shopping and the loss of legal security”;152 some argue that it undermines the international rule of law.153 It is not inconceivable that development and human rights regimes yield different interpretations of the same rule of international law, which risks gen- 147 OECD, Policy Coherence for Development. 148 For example, paragraph 4. Paragraph 9 contains states’ pledge to “ensure the implementa- tion, by States Parties, of treaties in areas such as arms control and disarmament and of international humanitarian law and human rights law.” See also paragraphs 24–26 and 30. 149 http://www.oecd.org/department/0,3355,en_2649_18532957_1_1_1_1_1,00.html. 150 I. Brownlie, The Rights of Peoples in Modern International Law, in The Rights of Peoples 1, 15 ( J. Crawford ed., Clarendon Press 1988). 151 B. Simma, Self Contained Regimes, 15 Netherlands Yearbook Intl. L. 111, 136 (1985); Kosken- niemi & Leino, infra note 154, at 560. 152 ILC Study Group, supra note 42, paragraph 9. 153 M. Scheinin, Human Rights Treaties and the Vienna Convention on the Law of Treaties—Conflicts or Harmony, in The Status of International Treaties on Human Rights 43 –45 (Venice Commission ed., Council of European Publishing 2006). http://www.oecd.org/department/0,3355,en_2649_18532957_1_1_1_1_1,00.html Human Rights and Development 149 erating confusion and even injustice.154 This has led some observers to point to the risk of a lower standard of protection due to a special regime not tak- ing into account more detailed guidance or robust protection provided for in general law or by other organizations.155 Others point to the failure to assess human rights impacts of policy measures, noting the potentially detrimental consequences for human rights in developing countries.156 The growth of development law or policy-making processes alongside the proliferation of human rights law and standards exemplifies the phenomenon of the fragmentation of international law. The growing reach of development policy and transgovernmental regulation157 into areas governed by human rights treaties increases the likelihood of regime interaction between human rights and development, as evidenced in the substantive and policy overlaps described above. The potential for norm conflict is a growing problem inher- ent in the fragmentation of international law due to the partial and poorly un- derstood points of convergence between human rights and development re- gimes and the lack of clarity around operational implications of human rights provisions in development frameworks. This situation is heightened by the neglect of human rights obligations and the absence of a clear, governing legal baseline where regimes do interact and their norms conflict. The fragmentation in general and these specific consequences in particu- lar generate a risk of accountability gaps158 for human rights in development processes and outcomes.159 Although rights and accountability interact in complex ways in any setting, and although they play an especially complex and dynamic role in development,160 the point here is that neglecting rights 154 M. Koskenniemi & P. Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Intl. L. 553 (2002), discuss a range of views on the various risks of fragmentation. 155 As in the case of Van Alphen v. The Netherlands, where the partially dissenting judges inquired as to whether it was “permissible today for the Europe Convention on Human Rights to provide a lower level of protection than that which is recognized and accepted in other orga- nizations.” 156 M. Salomon, Global Responsibility for Human Rights 106 (Oxford U. Press 2007). See also her related discussion of disparate and contradictory trends in of international legal regimes and the need for international policy coherence; id., 150, 156. 157 Kingsbury et al., supra note 139, at 16. 158 There is a growing body of literature on the theme of accountability in the context of global governance and constitutionalism; see G. de Búrca & J. Scott ed., Law and New Governance in the EU and the US (Hart Publishing 2006). 159 On this theme as applied to the World Bank, see D. Clark, The World Bank and Human Rights: The Need for Greater Accountability, 15 Harv. Hum. Rights J. 205 (2002); S. Skogly, The Hu- man Rights Obligations of the World Bank and the International Monetary Fund (Cavendish Press 2001); D. Bradlow, The World Bank, the IMF and Human Rights, 6 Transnatl. L. & Contemp. Probs. 48–89 (1996); D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF, 17 Hum. Rights Q. (1995); D. Bradlow, The World Bank, the IMF and Human Rights, 6(1) Transnatl. L. & Contemp. Probs 48 (1996); M. Darrow, Between Light and Shadow: The World Bank, the IMF and International Human Rights Law (Hart Publishing 2003); W. van Genugten, P. Hunt, & S. Mathews, World Bank, IMF and Human Rights (Wolf Legal Publishers 2003). 160 Newell & Wheeler, supra note 39, at 7. The World Bank Legal Review150 altogether in development will significantly undermine accountability. That is, the potential to advance accountability for development or access to re- sources or basic services is difficult to advance in a context in which rights are not explicitly acknowledged. The identification of such gaps is symptom- atic of broader concerns that exist about accountability and legitimacy in the context of globalization, the expansion and scope of authority of multilateral organizations, and the increase in numbers of NGOs.161 Thus, human rights accountability may be difficult to locate and uphold where human rights law obligations are not integrated into development policies162 in a way that states—as donors or clients—can pursue development activities without sys- tematic assessments of the human rights consequences of these and without formal legal recourse where those consequences are negative in respect to both process and outcomes.163 Arguing for Coherence Based on Human Rights Obligations The trend of increasingly explicit recognition of human rights obligations and instruments may have positive potential for human rights protection in development. This suggestion is supported by the increased emphasis on in- ternational policy coherence, in particular, coherence based on states’ human rights obligations. Indeed, the UN Guiding Principles on Business and Hu- man Rights, adopted by states in the UN Human Rights Council, include a principle on ensuring policy coherence: “8. States should ensure that govern- mental departments, agencies, and other state-based institutions that shape business practices are aware of and observe the State’s human rights obliga- tions when fulfilling their respective mandates, including by providing them with relevant information, training and support.”164 This section assesses the value of coherence and regime interaction in international law in relation to human rights and development. It focuses on international human rights trea- ties165 to suggest how the pursuit of international legal coherence could be approached and why it might benefit development regimes. 161 R. Grant & R. Keohane, Accountability and Abuses of Power in World Politics, 99(1) Am. Pol. Science Rev. 29 (Feb. 2005). 162 This point does not, however, ignore other important forms of accountability, such as social accountability. Nor does it assume that legal accountability mechanisms are the sole or most effective means of ensuring that people can claim and realize their rights. 163 On this theme, see P. Twomey, Human Rights–Based Approaches to Development: Towards Accountability, in Economic, Social and Cultural Rights in Action 45–69 (M. A. Baderin & R. McCorquodale ed., Oxford U. Press 2007). 164 John Ruggie, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Guiding Principles on Busi- ness and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Frame- work, A/HRC/17/31 21 (Mar. 2011). 165 In this it does not disregard the potential source of obligations in custom or general prin- ciples of law, but focuses on treaties as the most visible and clear source of such obligations for the purposes of the present discussion. For a more elaborate discussion of this argument, see S. McInerney-Lankford, International Financial Institutions and Human Rights: Select Per- spectives on Legal Obligations, in International Financial Institutions and International Law 239 Human Rights and Development 151 Principle 8 of the UN Guiding Principles on Business and Human Rights elaborates on the importance of both vertical and horizontal policy coherence based on government’s human rights obligations. “Vertical policy coherence entails States having the necessary policies, laws and processes to implement their international human rights law obligations. Horizontal policy coher- ence means supporting and equipping departments and agencies, at both the national and sub-national levels, that shape business practices . . . to be informed of and act in a manner compatible with the Governments’ human rights obligations.”166 Principles of international law may promote strategic regime interaction and advance policy coherence between human rights and development in rel- evant ways. For instance, the principle of systemic integration,167 derived from Article 31(3)(c) of the Vienna Convention on the Law of Treaties,168 states that in addition to the treaty’s context, “any relevant rules of international law ap- plicable in relations between parties” should be taken into account under the general rule of interpretation of treaties. This principle is, according to some, “the most influential principle in terms of reception of international law,”169 and one that could be used more generally to argue for taking relevant bind- ing human rights obligations into account in certain development contexts. In particular, this principle might support the integration of relevant human rights obligations at the levels of strategies, programs, processes, or projects as “relevant rules of international law applicable between the parties.” This (D. Bradlow & D. Hunter ed., Kluwer International 2010). 166 Guiding Principles, supra note 164, at 11–12. 167 C. McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 ICLQ 279–320 (2005). 168 Vienna Convention on the Law of Treaties (VCLT), UNTS Vol. 1155 (entered into force Jan. 27, 1980). 169 Forowicz, 13. Vienna Convention on the Law of Treaties (VCLT), Article 31: General rule of interpretation: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addi- tion to the text, including its preamble and annexes: a. Any agreement relating to the treaty which was made between all the parties in con- nexion with the conclusion of the treaty; b. Any instrument which was made by one or more parties in connexion with the conclu- sion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: a. Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b. Any subsequent practice in the application of the treaty which establishes the agree- ment of the parties regarding its interpretation; c. Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. The World Bank Legal Review152 would apply only when the human rights treaty in question was ratified by the state involved and would be delimited also by subject matter relevance. Countries are both parties to human rights treaties and members of devel- opment organizations, and what they do in each realm has potential relevance to the other.170 Without arguing for this principle as a prerequisite for regime interaction, the existence of parallel membership171 between the regimes gov- erning human rights and development is a factor in assessing the relevance of human rights to development and the relationship between their norms. Binding human rights treaty obligations could be relied upon substantively and in the interpretation of a range of development measures in areas cov- ered by a particular human rights treaty provision. In the case of ambiguity or conflict, a human rights treaty obligation and its accompanying interpretation and elaboration by the relevant expert treaty body could provide policy guid- ance grounded in the law. Human rights offer an established legal foundation upon which to base international policy coherence: The fact that both donors and partner countries have ratified the international human rights treaties provides a uniquely valuable reference point for harmonisation efforts. A mutually agreed, uni- versal normative framework already exists, supported not only by political commitment, but also by the force of legal obligation. As well, at the operational level, there is growing convergence in the integration of human rights in development.172 The foregoing does not deny the influence of cultural relativism, diver- gent interpretations of human rights norms, and differences among the social orders across countries and regions, which can be accentuated with respect to rights. In “a pluralist international society in which human rights are not pro- tected at all or only minimally protected the social basis for global administra- tive law based on individual rights is largely absent.”173 What is contended here is that the legal basis for integrating human rights into development, and possibly other spheres of international regulation, does exist in the shared hu- man rights treaty obligations of states. What are the practical benefits of such integration for development? 170 On the related question of the law binding international organization as subjects of inter- national law, the International Court of Justice (ICJ) has long established that such organiza- tions are “bound by any obligations incumbent upon them under general rules of interna- tional law, under their constitutions or under international agreements to which they are parties.” Interpretation of the Agreement of 25 March 1951 between WHO and Egypt, Advisory Opinion, 1980 ICJ Reports, at 89–90. 171 Young, supra note 1, at 94–96. 172 OECD DAC Human Rights Task Team, Human Rights and Aid Effectiveness, DAC Update 3 (Apr. 2007). 173 Kingsbury et al., supra note 139, at 46. Human Rights and Development 153 Coherence and Legal Accountability Some might argue that coherence is a benefit in and of itself and that it un- derpins the international rule of law and legal certainty upon which every specialized body of international law depends.174 This chapter suggests that pursuing such coherence based on the principle of systemic integration could ensure the consideration of human rights treaty obligations and thereby pro- mote legal accountability for human rights in development processes and outcomes. Strengthening accountability by framing development in terms of legal entitlements175 would help ensure that development benefits the poor- est and most vulnerable, thereby promoting poverty reduction goals too. An- choring relevant aspects of development regimes in applicable human rights treaty obligations could mitigate incoherence by providing a relatively clear legal and normative baseline for assessment. Thus, coherence around binding human rights treaty obligations would support states parties (whether as donors, partners, or merely members of development agencies and banks) upholding their human rights obligations and ensure accountability for human rights in development processes and outcomes. Such a renewed consideration of applicable legal norms could strengthen accountability more generally176 by reinforcing legal accountability in frameworks that are more usually the purview of broad policy commit- ments, programs, and processes than of treaties.177 Do No Harm/Do Good A more strategic engagement of development and human rights regimes might ensure that development policies and activities adapt to evolving in- ternational norms such as human rights.178 In particular, it would help ensure that states “do no harm” and that, at a minimum, states engaged in develop- ment bilaterally or through multilateral agencies consider their obligations and endeavor not to undermine human rights standards.179 That is, the in- tegration of relevant human rights standards based on international human rights law obligations could support the prevention and mitigation of undue 174 See supra notes 153 and 154. 175 P. Gready, Rights-Based Approaches to Development: What Is the Value-Added?, 18(6) Dev. in Practice 737 (Nov. 2008). 176 On the theme of accountability in globalized lawmaking and the emerging principles and requirements of global administrative law, see Kingsbury et al., supra note 139, at 44 –45 and 58–59. 177 International trade agreements and environmental treaties do feature somewhat more prom- inently in development policies; see World Bank OP 4.01—Environmental Assessment ( Jan. 1999), available at http://go.worldbank.org/RUEQVWD550. 178 Sureda, supra note 9, at 217. 179 This point is eloquently made by Andres Rigo Sureda, former deputy general counsel of the World Bank: “The IBRD is rightly concerned with its borrowers respecting the treaties that bind them in the course of its operations. In its work, there should not be any question that the IBRD is bound to respect them. [It] itself should not be instrumental in creating opportu- nities for the violation of human rights.” Supra note 9, at 218. http://go.worldbank.org/RUEQVWD550 The World Bank Legal Review154 harm, especially of a social and environmental nature. In this, human rights obligations, such as the obligation to respect, would serve as a minimum stan- dard against which development policies and activities could be assessed to ensure against harm in both processes and outcomes. An apposite example of such a standard emerges in the UN Guiding Prin- ciples on Business and Human Rights.180 Principle 13 states: The responsibility to respect human rights requires that business enterprises: a. Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; b. Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. Although the principles are primarily an elaboration of business enter- prises’ responsibilities rather than state legal obligations, they offer concep- tual and practical guidance by analogy. The different regimes might benefit from interaction and mutual defini- tion. There may be potential for mutual reinforcement among norms derived from human rights and development regimes181 such that human rights ob- ligations of donors and partners could inform development policy and its monitoring and evaluation frameworks,182 or development cooperation activi- ties could advance the realization of human rights (particularly economic and social rights).183 For instance, one could argue that a state party’s obligations under Article 12 of the ICESCR, protecting the right to health,184 might be rele- 180 See Guiding Principles on Business and Human Rights, supra note 164; and UN OHCHR, Corpo- rate Responsibility to Respect Human Rights: An Interpretative Guide 15 –22 (advance unedited version, Nov. 2011). 181 See M. Robinson & P. Alston, The Challenges of Ensuring the Mutuality of Human Rights and Development Endeavours, in Human Rights and Development: Towards Mutual Reinforcement (M. Robinson & P. Alston ed., Oxford U. Press 2005). 182 The fact that the monitoring and internal reviews of the UN Development Programme (UNDP), World Bank, and International Monetary Fund (IMF) do not take the established system of international human rights monitoring into account is noted as a concern by P. Alston, Ships Passing in the Night: The Current State of the Human Rights and Development De- bate Seen through the Lens of the Millennium Development Goals, 27(3) Hum. Rights Q. 755, 814 (2005). 183 See an analogous argument on the potential for a positive role for a development agency (World Bank) to support the realization of the right to food. G. van Hoof & B. G. Tahzib, Supervision with Respect to the Right to Food and the Role of the World Bank, in International Law and Development 334 (Paul de Waart, Paul Peters, & Eric Denters ed., Martinus Nijhoff 1988). 184 Article 12 of the ICESCR provides: 1. The States Parties to the present Covenant recognize the right of everyone to the en- joyment of the highest attainable standard of physical and mental health. 2. The steps Human Rights and Development 155 vant to the design and implementation of a development project, program, or strategy in the health sector.185 In particular, Article 12 could inform both mini- mum standards for process and outcomes by reference to the core obligation to ensure minimum essential levels of the right to health.186 One could argue further that general comment 14, issued in 2000 by the Committee on Eco- nomic, Social, and Cultural Rights on the right to the highest attainable stan- dard of health, could provide relevant guidance to a state party engaged in development cooperation activities in the health sector.187 For instance, guid- ance could be drawn from the four dimensions established by the committee: availability, accessibility, acceptability, and quality.188 The right to health might inform a program’s focus on nondiscrimination and equality and the rights of the most vulnerable groups. It might also provide specificity in terms of both freedoms and entitlements, as well as precision in terms of more particular entitlements implied by the right, such as maternal and reproductive health; water; prevention, treatment, and control of diseases; and a healthy workplace and environment.189 One outcome of the regime interaction described above would be to facili- tate the adaptation of development to evolving international norms such as human rights. This would help “transform development priorities from being measured in macroeconomic terms by focusing on the needs and interests of specific human groups.”190 Or, to argue this point further, this would move development from a matter of needs and trade-offs to one of rights and obli- gations. In this way, a more explicit integration of rights would focus on poor people’s ability to realize the rights to resources and enhance accountability in development.191 At a less formal legal level, it can be argued that human rights to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environ- mental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. 185 Grover, supra note 10, paragraphs 24, 49. 186 Id., paragraph 19. 187 See Committee on Economic, Social and Cultural Rights, General Comment No. 14, Sub- stantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4 (Aug. 11, 2000). 188 See also E. Reidel, The Human Right to Health: Conceptual Foundations, in Realizing the Right to Health vol. 3, 28–30 (M. Robinson & A. Clapham ed., Swiss Human Rights 2009). 189 Paul Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, E/CN.4/2003/58, paragraph 25 (Feb. 13, 2003). 190 M. Koskenniemi, Hegemonic Regimes, in Young, supra note 1, at 322. 191 Newell & Wheeler, supra note 39, at 1, place accountability at the intersection between rights and resources. The World Bank Legal Review156 principles such as participation, inclusion, and transparency in respect to regime interaction and in the structures and processes that govern develop- ment can promote accountability within it.192 Specificity and Technical Guidance In the context of development as a shared,193 stable, bounded structure of trea- ties with substantial and in some cases near-universal ratification,194 the human rights law framework includes a number of key strengths. These offer a le- gitimate195 and delimited legal and normative baseline founded on the volun- tarily undertaken commitments of states that bind them under international law. Human rights treaties are binding international agreements, and, like trade agreements or environment treaties, human rights treaties generate le- gally binding norms and enjoy high levels of ratification.196 However, human rights treaties predate many of these other treaties and have well-established bodies of interpretation and jurisprudence to support them. Beyond their nor- mative power and legally binding nature, such treaties introduce a measure of specificity with regard to substantive and procedural standards—their provi- sions have been the subject of extensive commentary through the interpreta- tions of treaty monitoring bodies,197 the individual complaints brought under those treaties,198 and, in the case of the regional human rights bodies, binding court rulings. In recent years, the UN human rights treaty bodies have enhanced the accuracy and consistency of interpretation by supporting the development of human rights indicators by the Office of the High Commissioner for Human Rights (OHCHR).199 The framework adopted by the OHCHR offers method- 192 See, for example, Young, supra note 1, at 107. 193 AOPP, Principle 1, paragraph 40(1). 194 See, for example, the Convention on the Rights of the Child, which is ratified by all but three countries in the world (the United States, Somalia, and South Sudan); of those nonstate parties, the United States has signed the treaty and is, according to Article 18 of the VCLT, therefore obliged not to act against the object and purpose of the treaty. On the role and strengths of international human rights treaties, see B. Simma & P. Alston, The Sources of Hu- man Rights Law: Custom, Jus Cogens and General Principles, 12 Australian Yearbook of Intl. L. 81–108 (1992). 195 Grant & Keohane note that the standards of legitimacy against which power wielders can be held accountable derive from different sets of norms, and that legitimacy derives from conformity with human rights norms; supra note 161, at 35. 196 http://www2.ohchr.org/english/bodies/ratification/index.htm. 197 UN Human Rights Treaty Bodies, http://www2.ohchr.org/english/bodies/treaty/index.htm. 198 http://www2.ohchr.org/english/bodies/petitions/index.htm. Five of the human rights treaty bodies (CCPR, CERD, CAT, CEDAW, and CRPD) may, under particular circum- stances, consider individual complaints or communications from individuals. 199 This work was initiated in 2005 at the request of the intercommittee meeting of UN human rights treaty bodies to help it assess the use of statistical information in states parties’ reports in assessing the implementation of human rights. See Report on Indicators for Monitoring Com- pliance with International Human Rights Instruments, HRI/MC/2006/7; a report was issued in 2011 that applied the analysis to economic, social, and cultural rights (Report of the UN High Com- http://www2.ohchr.org/english/bodies/treaty/index.htm http://www2.ohchr.org/english/bodies/petitions/index.htm http://www2.ohchr.org/english/bodies/ratification/index.htm Human Rights and Development 157 ological, institutional, and practical considerations for the effective use of hu- man rights indicators. The OHCHR has developed a series of indicators for approximately 12 human rights, covering economic, social, and cultural rights as well as civil and political rights.200 These indicators may be of particular use for development in supporting the measurement of economic, social, and cultural rights by charting progress, stagnation, and retrogression, as well as patterns of discrimination and marginalization.201 Indeed, beyond being posi- tively received and used within the UN system, other agencies and human rights bodies,202 and NGOs, the indicators have been employed by certain governments in national development plans. Connected with the advances in empirical approaches and measurement methodology on human rights indicators and benchmarks, there is a grow- ing body of work on human rights impact assessment (HRIA).203 HRIAs have been developed across a range of sectors, supporting the case for both the feasibility of bringing human rights law to bear in other areas of law and the possibility of generating concreteness and specificity to back the normative underpinning of human rights. In particular, such assessments advance the possibility of identifying rights and duties in a range of contexts and help specify both the human rights claims of rights holders and the corresponding human rights obligations of duty bearers. Such assessment can also identify the immediate, underlying, and structural causes of nonrealization of human rights, as well as offer recommendations on mitigation and approaches for redress,204 monitoring, and evaluation. Conclusions As suggested above, the fragmentation of international law may be as en- demic as it is pervasive, and it may even constitute a semideliberate state of affairs. The specificity of roles of different international regimes and their in- stitutions should be respected for legal, technical, and political reasons; this may be required to afford institutions a necessary measure of flexibility and allow them to leverage their comparative advantages in their respective fields of competence. A host of legal challenges attendant on a project of pursuing missioner on Human Rights, E/2011/90). See http://www.ohchr.org/EN/Issues/Indicators /Pages/documents.aspx. 200 Report on Monitoring and Promoting the Implementation of Human Rights, HRI/MC/2008/3. 201 Report of the UN High Commissioner on Human Rights, E/2011/90, paragraphs 23–24. 202 For example, the European Union Fundamental Rights Agency. Also relevant is the work on human rights benchmarks commissioned by the EU Parliament Subcommittee, Briefing Paper: Human Rights Benchmarks for EU External Policy, EXPO/B/DROI/2011/15, available at http://www.europarl.europa.eu/committees/fr/studiesdownload.html?languageDocume nt=EN&file=67511. 203 See, for example, S. Walker, The Future of Human Rights Impact Assessments of Trade Agreements (Intersentia 2009). 204 Grover, supra note 10, paragraph 22. http://www.ohchr.org/EN/Issues/Indicators/Pages/documents.aspx http://www.ohchr.org/EN/Issues/Indicators/Pages/documents.aspx http://www.europarl.europa.eu/committees/fr/studiesdownload.html?languageDocument=EN&file=67511 http://www.europarl.europa.eu/committees/fr/studiesdownload.html?languageDocument=EN&file=67511 The World Bank Legal Review158 coherence have been expertly documented by the ILC Study Group, among others. These include the absence of a hierarchy among norms;205 the fact that the Vienna Convention on the Law of Treaties does not provide clear guidance on the meaning of “systemic integration” or on how to reconcile conflicting norms; and the lack of an international legislature or appeals court to resolve conflicts around norms and their interpretation. The questions and challenges arising from international bodies reviewing the actions of other international organizations are myriad,206 and their complexity is evident in the EU-Europe- an Convention on Human Rights context,207 with no sense that they would be any less fractious or challenging in the context of human rights agencies and development organizations. The general limits on competences and resourc- es of various international agencies may be heightened in respect to human rights obligations when institutions operate subject to political prohibitions208 that have historically been interpreted to bar human rights considerations.209 At a technical level, the body of knowledge on human rights measure- ment methodology, although growing, is incomplete despite significant prog- ress in areas such as human rights impact assessments and human rights indi- cators. Human rights assessment itself is controversial: it is attended by risks of politicization, annexation, and externalization and, many argue, impossible to undertake in a completely neutral or objective manner. Resources are a relevant consideration here as well: HRIAs are costly and time-consuming, and monitoring and implementation require substantial institutional commit- ments and large amounts of data. For development agencies that do not operate from a normative base and do not fulfill an enforcement role with respect to human rights norms, the fact that the instrumental case for human rights in development has yet to be per- suasively established presents an additional challenge. That is, although risk- based arguments related to “do no harm” can be made, the empirical basis for arguing that integrating human rights increases development effectiveness is less clear. This is compounded by the relatively small number of quality hu- man rights indicators developed, the dearth of human rights data (especially 205 ILC Study Group, supra note 42, at paragraph 31. 206 Kingsbury et al., supra note 139, at 45. 207 See, for example, C. Costello, The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe, 6(1) Hum. Rights L. Rev. 87–130 (2006); T. Lock, EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg, 35 Euro- pean L. Rev. 777 (2010). 208 For example, IRBD Articles of Agreement, Article IV, Section 10, and Article III, Section 5 (Dec. 27, 1945), available at http://siteresources.worldbank.org/EXTABOUTUS/Resources /ibrd-articlesofagreement.pdf. Similar provisions exist in the constituent instruments of a number of other development banks, such as the Inter-American Development Bank and the African Development Bank. 209 Ibrahim Shihata, The World Bank and Human Rights, in The World Bank in a Changing World Selected Essays and Lectures vol. 2, 567 (Martinus Nijhoff 1991); similarly, see Ibrahim Shihata, Human Rights and International Financial Institutions, in id., 553. http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf Human Rights and Development 159 in developing countries), and the difficulty of establishing causation or attri- bution between human rights requirements and development outcomes. Nevertheless, despite the legal, political, and practical challenges of argu- ing for the integration of human rights obligations into development regimes, and despite the elusive nature of coherence in the international legal system, the core relevance of human rights to development must be recognized, and the legal treaty obligations underpinning human rights are one reason to do so. These treaty obligations form part of the body of evolving international norms that have practical relevance and legal pertinence for development re- gimes such that the latter should interact with, and adapt to, them. Interaction between human rights and development regimes could be mutually benefi- cial, potentially strengthening aspects of each regime. At the very least, hu- man rights should not be ignored in development frameworks, in respect of a minimum no-harm threshold. The overall benefit of such interaction and systemic integration would be enhanced by accountability for human rights in development, at least at the macrolevel of regimes, through a more formal type of “hierarchical, supervisory, accountability” system210 and through alter- native accountability models based on a more “dynamic experimentalist vision of benchmarking, borrowing, innovating, monitoring and mutual learning.”211 Human rights and development are inextricably interwoven, but their governing frameworks and regimes have remained largely separate. A grow- ing, but as yet uneven, integration of human rights into development re- gimes is occurring, and there is some evidence of growing recognition of the relevance of human rights treaty obligations in development regimes. This trend signals—despite the prevailing distinctions, fragmentation, and poten- tial conflict—evidence of the possibility for strategic links between human rights and development regimes and the political will to forge them. The trend also augurs well for the possibility of mutually beneficial norm defini- tion through regime interaction at the formal legal level in ways that both avoid harm and do good. 210 Kingsbury et al., supra note 139, at 58, drawing on Grant & Keohane, Accountability and Abuses of Power in World Politics, IILJ Working Paper 2004/7, at 14. 211 Kingsbury et al., supra note 139, at 58, drawing on Grant & Keohane, supra note 211. 161 Legal Transplantation and Legal Development in Transitional China Chenguang Wang China claims that its legal system and the rule of law it intends to build have strong Chinese characteristics distinct from those in the Western world and closely associated with the Chinese socialist political system and social envi- ronment.1 There is no doubt that China’s legal system and its commitment to building a rule of law have had a great effect on the nation’s social and economic development; the Chinese economic boom could not have been achieved without a functional legal system compatible with international and foreign legal practices. In this regard, legal transplantation was a useful tool in the establishment of the Chinese legal system.2 This chapter does not examine the credibility of China’s legal system, but rather proposes that the Chinese legal system has borrowed elements from other legal systems in order to pro- mote its unique market economy reform and social transition in the context of globalization. Legal Transplantation Is a Typical Aspect of Legal Development A function of comparative law is to better understand and improve national legislative work through comparison with foreign and internal legal systems.3 Comparison of different legal systems and the adoption of foreign law on the basis of such comparison or military occupation are established practices in The author is grateful for Dr. Ju Chengwei’s assistance in collecting materials and offering valuable comments on the draft and also for Mr. Hassane Cissé’s insightful comments on the paper. 1 Wu Bangguo, chairman of the National People’s Congress of China, has emphasized that the Chinese legal system embodies Chinese socialist characteristics. In 2011, he announced that “China has established a legal system with Chinese characteristics” and that “we do not use the legal systems in some Western countries as models to cast China’s legal system with Chinese characteristics.” He further indicated that “we are not going to make those laws which exist in foreign systems but do not fit into the Chinese social environment and reality.” Wu Bangguo, Annual Report of the National People’s Congress’ Work of 2011, available at http:// english.gov.cn/2008-03/15/content_921044.htm. 2 Wu Bangguo has said that “we should also learn from foreign experiences in the law making process and adopt those experiences useful to us.” Id. 3 Shen Zongling, On Comparative Law 50–51 (Peking U. Press 1998); Konrad Zweigert & Kein Kötz, Introduction to Comparative Law 17 (Oxford U. Press 1998); Alan Watson, Society & Legal Change 141 (Scottish Academic Press 1977); Rudolf B. Schlesinger, Hans W. Baade, Peter E. Herzog, & Mirjan R. Damaska, Comparative Law: Cases-Text-Materials 9 (5th ed., West Press 1998). http://english.gov.cn/2008-03/15/content_921044.htm http://english.gov.cn/2008-03/15/content_921044.htm The World Bank Legal Review162 history. Legal transplantation—the movement of laws and legal institutions from one state to another—is central to the study of comparative and inter- national law.4 In the midst of globalization, legal transplantation has become more frequent and common. The purposes of legal transplantation are not confined to better understanding and improving national legal systems; le- gal transplantation also promotes the convergence, at least in some fields of law, of different national laws in the global arena. Legal transplantation can be used to improve a national legal system and to promote a uniform global legal framework in the areas of international trade, environmental protection, antiterrorism, international peace, and the protection of human rights. The concept of legal transplantation is an ancient one. Solon of Athens studied laws of other Greek city-states as a basis for social reform. Aristotle studied more than 150 constitutions of other cities to compose Politics. It is said that the XII Tables, the first Roman code, incorporated references to ancient Greek city-states.5 While the Roman Empire declined, the conquering German tribes retained the Roman legal tradition.6 During the Renaissance and the Industrial Revolution, the use of comparative law became increasingly signifi- cant in the rising nation-states. Even the “original” Western legal systems were affected by foreign law: French and German legal systems are based on the Roman legal tradition;7 Anglo-American law is also influenced by civil law.8 In the 19th and early 20th centuries, the emergence of the global market and colonization brought these legal systems to Africa, Asia, and Latin America.9 After World War II, globalization engulfed the world. The US model of law and development introduced “ideal” legal models to the newly indepen- dent states.10 Despite the failure of the first law and development movement, 4 Jonathan M. Miller, A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process, 51 Am. J. Comp. L. 839 (2003). 5 René David & John E. C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law 1–2 (2d ed., Stevens & Sons, 1978); Andrew Borkowski, Textbook on Roman Law 26 (Blackstone Press Limited 1994). 6 Alan Watson, The Evolution of Law 77–92 ( Johns Hopkins U. Press 1985); M. H. Hoeflich, Law, Society and Reception: The Vision of Alan Watson 85 Mich. L. Rev. 1086 (1987). 7 John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 10 (2d ed., Stanford U. Press 1985). 8 Watson demonstrates that Commentaries on the Laws of England, by William Blackstone, the founder of English law, was based on a reference to Dutch scholar Dionysius Gothofredus’s (1549–1622) interpretation of the Institutes of Justinian. English and American conflicts of law referred to Praelectines Iuris Vivilis et Hodienrni by Ulrich Huber, a Dutch scholar. See Alan Watson, Legal Transplants: An Approach to Comparative Law 94, 109–110 (U. Georgia Press 1993). Jerome Frank points out that “[c]ivil law tradition has many impacts on common law.” He expounds on the far-reaching but often neglected impacts of civil law tradition on Ameri- can common law in the areas of the constitution, conflicts of law, legal interpretation, and judicial procedure: “The influences of civil law on common law are legion. Many of them doubtlessly can’t be detected.” Jerome Frank, Civil Law Influences on the Common Law: Some Reflections on “Comparative” and “Contrastive” Law, 104 U. Penn. L. Rev. 888 (1956). 9 David & Brierley, supra note 5, at 69–73; and Shen, supra note 3, at 75–77. 10 Daniel Berkowitz, Katharina Pistor, & Jean-Francois Richard, The Transplant Effect, 51 Am. J. Comp. L. 163 (2003). Legal Transplantation and Legal Development in Transitional China 163 subsequent movements emerged with different theoretical foundations and strategic emphases.11 The collapse of the former Soviet Union and the social- ist bloc encouraged the transplantation of the European and American legal model to East European and former Soviet Union countries as they tried to restructure their legal systems.12 In today’s world, no national legal system can be separated entirely from foreign and international law. Many comparative law scholars emphasize the importance of legal trans- plantation in legal and social development. Orucu states that “the movement of legal institutions and ideas is trans-border and such transmigration is a natural phase in legal development. This is both a historical and present fact and the future will see more of it.”13 He further asserts, “It is a truism that the amount of innovation in law is small and borrowing and imitation is of central importance in understanding the course of legal change.”14 Sacco holds that “borrowing and imitation is therefore of central importance to understanding the course of legal change.”15 Watson points out that direct transplants of legal systems have proliferated in human history and constitute the most important forces for legal development.16 Watson questions Savigny’s volksgeist (popu- lar consciousness), the Marxist theory of economic determinacy, and Jhering’s and Pound’s theory of the sociology of law. He contends that the relation between law and society is more remote than people think and that legal rules are not designed for the particular society in which they operate.17 Not all scholars recognize the important role of legal transplantation in legal development. Montesquieu asserts that “the political and civil laws of each nation ought to be only the particular cases in which this human rea- son is applied. They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation 11 David M. Trubek, Law and Development in a Time of Multiple Visions: The Challenge of the New Developmental State, presentation at Renmin University Law School, available at http:// www.law.ruc.edu.cn/Article/ShowAritcle.asp?ArticleID=11151. Trubek states, “In the first moment, law was seen as a strong tool to be used by the state to shape and guide behavior. In the second it was promoted as a shield against state intervention and a framework for pri- vate transactions.” The third moment is a new type of law and development in developing countries, exemplified by China and Brazil, which show “signs of wanting to move beyond neo-liberalism without simply trying to return to the developmental state of the 1950s and 1960s. . . . The new theories stress the idea that policies must be constructed through experi- mentation and public-private collaboration and tailored to the needs of specific industries and regions, . . . [and] suggest the need for variation within each nation as well as among them.” 12 Daniel Berkowitz, Katharina Pistor, & Jean-Francois Richard, Economic Development, Legality and the Transplant Effect, 47 European Eco. Rev. 166 (2003). 13 Esin Orucu, Law as Transposition, 51 Intl. Comp. L. Q. 205 (Apr. 2002). 14 Id., at 206. 15 Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 394 (1991). 16 Watson, supra note 3, at 95. 17 Watson, supra note 6 at 8. http://www.law.ruc.edu.cn/Article/ShowAritcle.asp?ArticleID=11151 http://www.law.ruc.edu.cn/Article/ShowAritcle.asp?ArticleID=11151 The World Bank Legal Review164 suit another.”18 Savigny advocates volksgeist and theoretically rules out the feasibility of legal transplantation. In the contemporary field of comparative law, Kahn-Freund and Legrand represent the opposite theory, which objects to the possibility of legal transplantation. They hold that transplantation is impossible due to ingrained differences in the systems involved—transplan- tation does not occur at all: the product of moving a rule elsewhere is always something else, “not the same rule.”19 In recent years, both these absolutist visions have long collapsed into a middle ground, densely populated by authors who reject both the sunny aspects of Watson’s world of ever-flourishing transplants and Le- grand’s rejection of that vision. Much of the study has followed a culturalist path, under which outmoded legal formalism was re- placed by realist, socio-politico-cultural theories that consider law as a living social construct. Here, legal culture was offered as a key determinant of the viability of transplantation; complete isolation- ism and hermeneutical closeness were replaced by a vision of law as rooted in its cultural/social frameworks, but also amenable to vari- ous influences, among them foreign ones.20 Even those who assert that legal transplantation is the normal path of le- gal development, such as Watson, cannot refute the effects of national spirit, domestic economic and social foundations, and distinct culture, religion, and political factors on legal development. Watson quotes Engels’ statement that “in a modern state, law must not only correspond to the general economic position and be its expression, but must also be an expression which is consis- tent in itself, and which does not, owing to inner contradictions, look glaringly inconsistent.”21 Watson believes that these social factors are the cause of the transplantation of various forms of legal rules.22 In the post–Cold War world, ideological barriers for legal transplantation may seem insignificant and legal transplantation may appear to be a common phenomenon. But legal systems are based on the foundation of democracy, human rights, and a market economy and have enforced the impulse for ex- portation or transportation. Developing and transitional countries with newly developed market economies have introduced foreign laws in response to the pressures of economic development, democratization, and globalization. “To be in line with international conventions” is the accepted practice in the process of globalization, which encourages convergence or harmonization of legal systems in the areas of economic transactions, cultural exchanges, en- 18 Baron de Montesquieu, The Spirit of Laws vol.1, 6 (Cosimo Inc. 2007). 19 Margit Cohn, Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom, 58 Am. J. Comp. L. 586 (2010). 20 Id., at 587–88. 21 Watson, supra note 3. 22 Watson, supra note 6, at 97. Legal Transplantation and Legal Development in Transitional China 165 vironmental protection, international peace, and some public law fields. The formation of a common market and the wide acceptance of universal values provide a solid foundation for legal convergence and harmonization. The World Bank, the Asian Development Bank, and various foundations that sup- port economic and social development in developing and transitional coun- tries often require the reform of legal systems and the establishment of the rule of law as prerequisites for providing funds and other assistance. This obliga- tion further promotes legal transplants from developed countries to develop- ing countries. “However, the economic development, democratization, and globalization have today so sharply increased the number of legal transplants that at least in developing countries, most major legislation now has a foreign component.”23 The common trajectory of legal transplants is from developed and international legal regimes to developing countries. Thus, from both historical and practical perspectives, legal transplants are a common form of legal development. With the irresistible trend of globaliza- tion, the role of legal transplantation becomes ever more significant. Typology of Legal Transplants The transplantation debate continues, on issues of form, basic conditions, ef- fects, function, compatibility, and implementation. There is little true consen- sus on the typology of and basic conditions for legal transplantation. In practice, governments of different countries adopt different approaches toward legal transplantation because of practical concerns about national sov- ereignty, culture, history, ideology, and social system. Support or disapproval, toleration or rejection, wholesale or selective acceptance, uncritical or flexible adoption of different types of law—legal transplantation takes diversified and multidimensional forms. Moreover, the social, economic, and institutional con- texts often differ remarkably between the countries of origin and of transplant, creating fundamentally different conditions for effectuating the imported le- gal order in the latter. Transplant countries therefore are likely to suffer from the transplant effect, that is, the mismatch between preexisting conditions and institutions and transplanted law, which weakens the effectiveness of the im- ported legal order.24 Although Su Li’s concept of “indigenous legal resources” explains the mismatch problems from the Chinese perspective,25 an examina- tion of the typology of and basic conditions for legal transplantation is in order. Watson divides voluntary legal transplantation into different types: • The transplantation of original law into an uncivilized area by massive immigration 23 Miller, supra note 4. 24 Berkowitz, Pistor, & Richard, supra note 10, at 171. 25 Su Li, The Rule of Law and Its Indigenous Resources (China U. of Political Science & Law Press 2004). The World Bank Legal Review166 • The transplantation of original law into a civilized area • The voluntary acceptance of another nation’s law by the native people In addition, there are other types, such as imposed acceptance, selective adoption, intrusion, filtration, and tacit acceptance. Watson believes that both the type and scale of transplantation vary and that, without specific study of individual cases, categorization has little value and cannot bring new ideas to comparative study.26 Although legal transplantation is a normal form of legal development, it is by no means the only form. A particular social environment and country-specific factors are the major determinants of the development of a legal system. The necessity for and inevitability of revision, adaption, and natu- ralization of transplanted rules by the recipient country cannot be overlooked. Miller uses motives of legal transplantation to categorize its types. This categorization helps explain the internal impetus for legal transplantation in China. Miller believes that there are four types of legal transplantation: • The cost-saving transplant • The externally dictated transplant • The entrepreneurial transplant • The legitimacy-generating transplant27 This typology shifts the focus of transplantation from the donor’s per- spective to the recipient’s perspective. In practice, “many transplants are a mix of the four types, and one rarely encounters a type in pure form.”28 The Cost-Saving Transplant Implemented to save time and costly experimentation, a cost-saving trans- plantation “involves a drafter who when confronted with a new problem pulls a solution from elsewhere off the shelf of the library to save having to think up an original solution.”29 This type of transplantation has the benefit of speed, convenience, and direct application. However, it must be supplemented by a functional and systematic approach that is “the starting point and basis of all comparative law and that different legal systems can be compared only if they solve the same factual problem, satisfying the requirement in adequate legal regulation.”30 In the cost-saving approach, the prospective laws and mechan- ics to be transplanted are analyzed and selected after it has been determined 26 Watson, supra note 6, at 29–30. 27 Miller, supra note 4, at 842. 28 Id. 29 Miller, supra note 4, at 845. 30 Zweigert & Kötz, supra note 3, at 34; see also Jeffrey L. Dunoff & Joel P. Trachtman, Ruling the World? Constitutionalism, International Law, and Global Governance, in Constitutionalism, In- ternational Law and Global Governance 9 ( Jeffrey Dunoff ed., Cambridge U. Press 2009); Djalil Kiekbaev, Comparative Law: Method, Science or Educational Discipline? 7.3 Electronic J. Comp. L. (Sep. 2003), available at http://www.ejcl.org/73/art73-2.html. http://www.ejcl.org/73/art73-2.html Legal Transplantation and Legal Development in Transitional China 167 that both the donor and the recipient face similar social problems capable of being solved by the transplanted rules, and that the transplanted rules and mechanics will function in the same manner in both countries. Basing the de- cision purely on function is not sufficient because social environments may differ substantially, rendering the transplant a failure. This approach poses difficulties that make a complete checklist for comprehensive analysis of func- tion and social factors unrealistic.31 China adopted this approach. It “pays attention to draw ‘international ex- perience’ in the process [of] drafting important laws and regulations, namely, comparing with the relevant foreign and international laws.”32 For example, in the initial stage of “opening to the outside,” China had no experience in the area of foreign investment. To attract foreign investment and cooperation, the Chinese legislature reviewed laws relating to joint ventures and foreign investment from more than 20 countries. It borrowed directly from foreign and international experience in drafting its first law, the Sino-Foreign Equity Joint Venture Law, and thus laid the legal foundation for attracting foreign investment.33 To meet the needs of the increasing volume of foreign trade, the legislature has applied the United Nations Convention on Contracts for the International Sale of Goods to cases of international trade involving Chi- nese parties. In the areas relating to market formation and transaction, such as property, intellectual property rights, securities, companies, and bankruptcy, the legislature has also borrowed from foreign experience. This practice has become a conventional and regular step in China’s legislative process—the legislature sends staff and experts to other countries for field study or to col- lect similar laws for further research and adoption.34 By using this cost-saving transplant model, China has implemented laws based on foreign and interna- tional laws and mechanics to foster economic development. The Externally Dictated Transplant “Externally dictated transplants have become ubiquitous, particularly in developing countries. This kind of transplantation may involve a foreign individual, entity, or government that indicates the adoption of a legal model as a condition for doing business or for allowing the country a measure of political autonomy.”35 In the era of colonialism, a typical way to effect legal 31 Dunoff & Trachtman, id. 32 Shen, supra note 3, at 52. 33 Zhao Xin & Zhang Li, Deng Xiaoping on Sino-Foreign Equity Joint Venture Laws: A Political Declaration, Procuratorial Daily (Sep. 9, 2009). 34 Li Lin, Thirty Years of Reform & Open Policy and China’s Legislative Development, 7(2) Beijing Union U. Rev.—Social Science, 8–10 (2009). See also the civil law section of Comparison of Ar- ticles of Contract Law of the PRC with Relevant Foreign Contract Rules (Legislative Affairs Com- mission of the National People’s Congress ed., Law Press 1999). This detailed comparison indicates clearly that, in the process of drafting this statute, the legislative body conducted systematic and detailed comparisons and borrowed from successful foreign practices. 35 Miller, supra note 4, at 847. The World Bank Legal Review168 transplantation was to dictate acceptance of foreign law. In the contempo- rary world, adoption dictated by military occupation or colonization is rare, although adoption in developing counties dictated by other means, such as economic or diplomatic pressure, is not uncommon. China accepted certain unfavorable rules and conditions imposed by powerful trading partners in the process of negotiating for its membership in international organizations.36 Facing an established international market and regulatory regimes, China had to comply with externally imposed requirements and standards, includ- ing inspections and reviews by foreign agencies. To participate in the global market and export China-made products, China had little choice. Because of the pressure of this model, a recipient country often becomes the victim of economic, political, ideological, and diplomatic confrontation while reflecting the intrinsic demand for globalization and harmonization of the international legal framework; this type of legal transplantation is very common. The Entrepreneurial Transplant This model refers to individuals and groups who reap benefits from investing in, learning about, and encouraging local adoption of a foreign legal system. Its success depends on an exporter willing to provide capital and an importer interested in the import, each side guided by what it might gain domestically by operating internationally.37 In tandem with China’s opening to the outside and economic development, economic entities ranging from large state-owned enterprises to small private companies want to participate in international in- vestment and trade, resulting in direct contact with foreign companies and acceptance of foreign rules. For example, all Chinese companies (both state owned and private) must follow foreign rules when they intend to participate in a foreign securities market. Some enterprises directly apply foreign com- modity standards or labor standards in order to export their products to par- ticular countries. Products with quality below the standards of the importing country have no chance of entering the market; labor safety standards (such as safety protection and work environment) below a legal requirement in the importing country may result in the blockade and boycott of the exported products. Some scholars claim that legal transplantation through private ac- tors, by borrowing law through private contracting, has formed another type of transplantation. Through the channel of contracting, private transactors “smuggle” law across borders.38 As a large export-oriented trading country, 36 Pitman B. Potter, Globalization and Economic Regulation in China: Selective Adaptation of Global- ized Norms and Practices, 2 Wash. U. Global Studies L. Rev. 121–25 (2003). Potter analyzes the demands for China to adopt the principles of transparency, uniformity, national treatment, nondiscrimination, and compatibility with WTO rules, as well as the demands for certain rules and mechanics in the areas of trade, service, intellectual property rights, foreign ex- changes, customs, independent courts, and dispute settlement. 37 Miller, supra note 4, at 849–50. 38 Li-Wen Lin, Legal Transplants through Private Contracting: Codes of Vendor Conduct in Global Supply Chains as an Example, 57 Am. J. Comp. L. 713 –14 (2009). Legal Transplantation and Legal Development in Transitional China 169 China has implemented this model of legal transplantation through private economic and cultural exchanges. The Legitimacy-Generating Transplant This model refers to the process of consciously emulating the most prestigious foreign legal systems. Developing countries tend to regard the legal orders in developed countries as models to be copied. The wide acceptance in develop- ing countries of the doctrine and mechanics of the separation of powers and an independent judiciary, which are deemed as legitimate legal orders by the people just coming out of dictatorship, is an example.39 Different legal systems have their respective levels of prestige. “A country’s legal family is a significant determinant of the effectiveness of its legal system. Countries belonging to the English common law family have the most investor- friendly laws, French and German civil law countries have the least investor- friendly laws, and the Scandinavian countries fall somewhere between.”40 The US securities market is widely regarded as a prestigious legal regime because of its efficiency, flexibility, and security. In the process of drafting its securities laws and building its securities market, China turned to the US model. Similar borrowing and acceptance occurred in the areas of companies, insurance, an- titrust, banking, and accounting. Despite the fact that the US securities market was hit hard by the worldwide financial crisis, because of its critical role and function in the international securities market, its legal regime is still regarded by many countries as the most prestigious legal model, even though this model may harbor potential risks, such as financial bubbles and speculation. These four models focus on the motives and purposes of legal transplan- tation. A pure form of any one model is rare in practice, and a mix of the four is common.41 This mix will take different forms. For example, although China employs all these transplantation models, its incremental approach, the stability required by social transition, the national independence asserted by China in the international community, and its unique historical and social backgrounds constitute a unique Chinese environment of legal development that is distinct from those in other transitional and developing countries. Legal transplantation in China may have created a new model, positioned within a legal framework underpinned by socialism, based on the Chinese so- cial environment, and developed to explore the possibilities of a Chinese social- ist market economy and the Chinese socialist rule of law. Legal transplantation is an effective instrument to promote a legal system with Chinese characteris- tics that mixes transplantation models based on rational and active selection. 39 Id. 40 Berkowitz, Pistor, & Richard, supra note 10, at 166. 41 Miller, supra note 4, at 842. The World Bank Legal Review170 Conditions for a Successful Legal Transplant Simply establishing a typology of transplantation does not, of course, guaran- tee the success of legal transplantation. No matter what type of transplantation is employed, the process may end in failure or with setbacks. The failure of the first law-and-development movement triggered reexamination of the concept. Trubek and Galanter offered the first critique. In 1974, they asserted that the movement was dead because of excessive dependence on the governments of newly independent states and the one-sided intention of American schol- ars and lawyers to bring the legal order of developed countries to new states without considering the social conditions of the recipient countries.42 The sec- ond wave of the law-and-development movement was initiated by neoliberal- ism and the free market doctrine espoused by Ronald Reagan and Margaret Thatcher. This new round took the rule of law as its banner; democracy, free market doctrine, and liberalism as its theoretical foundation; and the Wash- ington Consensus as its guiding principle. The collapse of the socialist bloc headed by the Soviet Union cleared the way for the introduction of American and European legal systems into Russia and East European countries. But to a great extent, the results have not been satisfactory. The global financial crisis delivered a heavy blow to the theory and strategy of law and development. As a result, scholars question the credibility of the legal transplants in this mode and wonder how to guarantee the success of a legal transplantation, and how to use legal transplantation to achieve positive social effects. The success of a legal transplant does not depend exclusively on the choices of laws to transplant, on the system selected as the model, or on the faithful introduction of an entire system. No less important to success are the conditions for transplants in the recipient country. These conditions may already exist or may have to be created to ensure that a transplant is ac- cepted. These conditions include internal demand for the transplant and the local environment, such as relevant institutions, procedures, and social factors that promote and implement the transplanted laws and systems.43 A friendly environment for transplanted laws is one in which social and popular atti- tudes favor acceptance of the transplant, and in which there exists the capacity to absorb the transplant and the ability to resolve possible conflicts between the transplanted law and indigenous law and customs.44 If these conditions are absent or incomplete, no matter how magnificent the intention behind the transplant or how well designed it is, its final result will be disappointing. In the past 30 years, as China has faced numerous challenges in the tran- sition from a planned economy to a market economy, it has experienced an astonishing economic boom and rapid changes in its social structure. The 42 David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 14 Wis. L. Rev. 1062 (1974). 43 Berkowitz, Pistor, & Richard, supra note 10, at 179. 44 Zhang Jianyuan, Symptoms and Diagnosis of Legal Transplantation—Taking HIV Legal Policy as a Case for Study, 4 Ideological Front (2010). Legal Transplantation and Legal Development in Transitional China 171 decisive factor for such change has been the strong desire, embraced by the populace, the government, and the party in power, to build a “strong mod- ernized country” and to elevate living standards. The Cultural Revolution brought the Chinese economy to the edge of bankruptcy; under the planned economy commodities were in short supply and living standards remained at a very low level. The populace concluded that in the wake of the Cultural Revolution there was a need to “shift the working focus to socialist modern- ization and economic construction”45 and to improve living standards. Based on a strong consensus, the policy and practice of borrowing, introducing, and transplanting foreign and international law and legal systems triumphed. De- spite different views regarding choices and modes of transplantation, consen- sus to borrow foreign and international laws was achieved and maintained. By rationally borrowing and transplanting foreign laws to constitute a new legal system that pushes social reform and maintains the open-door policy, China has turned onto a new road. In regard to basic conditions for a successful transplant, China faces a complicated situation. First, as to the institutions and mechanisms that could facilitate transplantation, the existing apparatus, such as law enforcement agencies and judicial organs, has traditional ways of operating that are rife with defects and loopholes and often incompatible with newly transplanted law or mechanisms. When China introduced contracts as a means for market transactions, for example, organs such as the State Administration for Indus- try and Commerce still had the mind-set of a planned economy and exercised their control over business contracts by requiring them to be registered with the administration. Second, legal consciousness in China may still lag behind the laws that are being introduced. Although China has made an effort to build a legal system and promote the rule of law, the law is not regarded as the predominant norm in Chinese society, and the legal system and apparatus are not considered the primary means for constructing a new social structure or solving social problems. The Communist Party and state policies (or even the decisions of individual leaders) continue to play more significant roles than the law. In the areas of rural economic reform and state-owned enter- prise reform, policy is more effective and timely than law.46 Law is often used to enforce or institutionalize policy. In this regard, social and legal conditions are not sufficient for newly introduced laws that cannot have immediate le- gal effects without policy support. Finally, an inadequate legal consciousness creates hurdles to acceptance and implementation of introduced laws and mechanisms. 45 The Communiqué of the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China (Dec. 22, 1978). 46 The Chinese Communist Party’s policy is usually carried out in party documents. For ex- ample, to promote rural reform in China, every year’s first party document states major rural reform policies from 1982 to 1986 and from 2004 to 2012. Thus, the “first party document” is the nickname of rural reform policy. These policies often introduce new reform measures that do not have sound legal grounds and will push law in new directions. The World Bank Legal Review172 China is in the long process of learning how to march to the rule of law. There are bound to be defects, problems, and loopholes in the legal system and in society as this process unfolds. For example, after drafting securities laws and regulations based on foreign models (introducing foreign law), listed companies with state assets are habitually interfered with by the state organs exercising power over them as state-owned enterprises. Based on these kinds of conditions, securities law and regulations operate differently than does the original model and their functions are very much restricted. Traits and Effects of Legal Transplantation in China At this point, China has a relatively comprehensive legal system. Although the legal system needs to be developed and perfected, its role in promoting economic and social development and constructing a new legal and social structure is widely recognized. The system has borrowed and transplanted many foreign laws and legal mechanisms that have been integrated into the system and play a significant role in providing readily gained experience and shortening the process of lawmaking. Why have these transplants been suc- cessfully integrated into the Chinese system? Integration of Transplanted and Aboriginal Concepts The modern Chinese legal system is built on Western legal patterns that have been transplanted on a grand scale. The traditional Chinese legal system (such as the Tang and Qing royal codes and legal apparatus) no longer exists in China. Nevertheless, the legal system has maintained certain traits, including strong nationalist and socialist characteristics. The traditional Chinese legal system, which lasted for more than 2,000 years, is an aboriginal legal system. The system was fundamentally trans- formed due to the formation of international markets and the effects of glo- balization. Although the legal culture and ideology of the system maintain a strong influence (both positive and negative), the Chinese structure and system have been entirely taken over. This transformation took place in the late Qing dynasty and early Nationalist Republic, when the royal “ancestor’s law and the traditional legal system” were abandoned and replaced by the Western legal system. Transplantation has since become a significant feature of the Chinese legal system.47 After the establishment of the People’s Republic of China in 1949, the new government of China abandoned the Western legal pattern and introduced the legal system of the Soviet Union. This massive process of transplantation ended in the early 1960s, when China broke away from the Soviet Union. During the disaster of the Cultural Revolution, the legal system modeled on the Soviet example was dismantled. With the ending of the Cultural Revolution, the Chinese government led by Deng Xiaoping 47 Zhou Shaoyuan, Chinese Legal Changes and Legal Transplantation in the 20th Century, 2 Chinese and Foreign Legal Science (1999). Legal Transplantation and Legal Development in Transitional China 173 decided to initiate structural reforms and open China’s door to the world. A policy of strengthening the legal system was begun to rebuild the ruined legal system. Since then, China has borrowed and introduced many foreign and international laws and mechanisms. Nevertheless, the dominant ideas in the process of transplantation are either “insisting on Chinese learning as the foundation and Western learning for practical use,” as introduced in the late Qing period, or “Chinese characteristics” (socialism under Chinese con- ditions), used currently, in which the transplanted laws and mechanisms are organically combined with traditional Chinese culture, popular ideology, and local environments. Therefore, China’s legal development is unlike that in Asia, Africa, and Latin America during the law-and-development movement of the 1960s, when foreign experts espoused the wholesale transplantation of the Western legal system. In the process of transplantation, China has emphasized the following concepts: • An insistence on the nationalistic and socialist nature of legal develop- ment, by which China tries to integrate transplanted laws and mecha- nisms into the framework of the legal regime embedded in Chinese cul- ture, particularly ideology and the dominant political doctrine. • An insistence on facing and solving real Chinese problems, by which China adopts a functional approach to set up clear targets for the trans- planted laws and mechanisms in order to combine the transplanted laws with Chinese social reality. • An insistence on national sovereignty and the principle of “taking facts as basis,”48 by which China’s legislative, administrative, and judicial agen- cies, after carefully analyzing the Chinese social environment and interna- tional needs, have maintained their authority of initiation and renovation and never blindly borrowed. • An insistence on integration within the national legal system, in which transplanting goes through careful study and adaptation in order to make individual transplants compatible with other laws and mechanisms. This type of transplantation might be described as “selective transplan- tation”—China has built its legal system with its own needs and purposes in mind. Although there are debates over the concepts of “Chinese charac- teristics” and socialism, and these concepts do need further explanation and substantiation, the concepts emphasized by China have the de facto effect of guaranteeing the independence of the Chinese legal system and maintaining its distinctive traits, and therefore integrating the introduced laws and me- chanics into the social environment and the existing Chinese legal framework. The unique approach taken by China to incorporating foreign elements into 48 Gu Ang’ran, Significance of Contract Law Legislation, in Legislative Materials on Contract Law of China, 37 (Law Publishing House 1999). See also Li Peichuan, Theory and Practice of Chinese Socialist Legislation 31–34 (China Legality Press 1991). The World Bank Legal Review174 its legal system represents a major innovation and has directly advanced the country’s economic development. As a result, China has been successful in avoiding an unhappy marriage of the transplanted and aboriginal systems as evidenced in other developing countries. This particular way of integration has also avoided the result of “rejection reaction”49 and guaranteed the natu- ralization of transplanted laws while maintaining their vitality. If legal trans- plants have played an important role in promoting social transition and reform in China, the above-mentioned general approaches, unique models, and tactics of legal transplantations were preconditions for success. Selective Transplantation “Selective adoption is the process of interplay by and mixing of the interna- tional rules and local cultural norms.”50 This concept, proposed by Potter, relates to the application of international rules and foreign laws in different countries, particularly in developing countries in today’s environment of glo- balization. China’s legal transplantation is by no means a blind or wholesale form of transplantation; to a great extent, it is a transplantation based on “self- need.” It requires that recipients scrutinize the target laws to be transplanted, the problems to be solved by transplanted laws, the possible social effects of transplantation, and the differences and similarities of the social environments of exporting and importing countries in order to come up with an active, pur- poseful, and selective legal transplant. In the current development wave, international institutions such as the World Bank and the International Monetary Fund often make the rule of law a prerequisite of financial support and ask recipient countries to implement overall or fundamental legal reform. Facing such requirements, many recipi- ent countries have no other recourse but to accept. There is nothing wrong with such requests, but they often overlook the internal environment of the recipient countries, making the countries passive in the process of reform and transplantation. Therefore, the transplanted laws often appear aimless or mis- matched to local needs or environments. In contrast, China, in its social transition and legal development, has adopted selective borrowing and transplantation rather than wholesale ab- sorption.51 In economic law, China adopted a series of foreign investment and trade laws and regulations when it opened the door to attract foreign 49 Wang Chenguang, Inter Borrowing and Absorption of Legal Systems of Different Countries—An Important Topic in Comparative Law, 4 China Legal Science (1992). 50 Pitman Potter, Selective Adoption and Institutional Capacity Building: Methods of Applying In- ternational Rules under the Impacts of Globalization, in The Hypothesis of “Selective Application” and China’s Legal Practice 2 (Pitman Potter & Gu Xiaorong ed., Shanghai Academy of Social Sciences Press 2009). 51 Pitman Potter, Selective Adaptation of Economic Governance Norms in China: Transparency and Autonomy in Local Context, in Pitman & Gu Xiaorong, id., at 30. Chen Yun, On the Approaches of China’s Rule of Law Resources, in Legal Transplantation and Legal Naturalization 298 (He Qinhua ed., Law Publishing House 2001). Legal Transplantation and Legal Development in Transitional China 175 investors and businesses. At the same time, China made a number of rules in the areas of foreign currency exchange, choices of laws, and management of joint ventures in order to maintain autonomy in conducting foreign trade. In the political field, China emphasizes its socialist nature and the Communist Party’s leading role and rejects the doctrine of separation of powers while it explores efficient means of restricting power, actively borrows and intro- duces foreign laws of legal supervision and control of governmental power, and sets up anticorruption bureaus in the procuratorial organs. In the process of judicial reform, China has pushed for adjudicative reform based on the ad- versarial model of common law while hesitating to adopt fully the principle of judicial independence; it introduced the reform of evidence rules based on the foreign evidence structure; and it actively promoted China’s guiding case system, based on the pattern of case law.52 These selective and adapted trans- plants play effective and practical roles with clear purposes in the incremental process of reform. Openness and Tolerance for Transplanted Laws Chinese reform has another characteristic: to allow a “bold charge” (da dan chuang),53 even new methods may be incompatible with the current rules. Generally speaking, Chinese reform adopts an incremental approach and fol- lows a piecemeal path, but it also encourages bold experiments and tolerates failures,54 including in the process of legal transplantation. In the aspects of structure and legal framework, particularly in the area of reforming concrete rules and institutes, the bold introduction and transplanta- tion of foreign effective laws and mechanisms have been a regular practice in pushing legal reform. Theoretically, there is a consensus that “borrowing and absorbing foreign laws cannot take the distinction of capitalism and socialism as a standard for borrowing and absorbing, but take the functional approach as standards to test whether the borrowing and absorbing is conducive to so- cial reform and economic development or not.”55 Transplants of concrete rules and mechanisms have affected many areas of the law. In the field of civil law, transplants have included the right to privacy, spiritual damages, and the principle of changing situations; in the criminal field, presumption of innocence, exclusion of illegal evidence, and evidence rules; in the administrative law field, administrative litigation, ad- ministrative permission, and protection of private information; and in the 52 Detailed reform is demonstrated in Supreme People’s Court, The Third Five-Year Reform Pro- gram of the People’s Courts (Mar. 2009). See also Xia Jinwen, Contemporary Chinese Judicial Re- form: Achievements, Problems and Future—An Analysis of People’s Courts, 1 China Legal Science (2010); Huang Zaizai, On Legal Transplantation and Establishment of China’s Case Law System, 4 Shanghai Carders Management College of Pol. & L. Rev. (2002). 53 The phrase “bold charge” was used by Deng Xiaoping when he made his famous visit to Shenzhen and encouraged further reforms in 1991. 54 Cao Ying & Hu Liguo ed., Xiaoping’s Centenary 551 –52 ( Jinghua Press 2004). 55 Wang, supra note 49. The World Bank Legal Review176 commercial and economic law field, company law, anti-unfair competition, protection of consumer rights, intellectual property rights, and the stock market. In the social protection field, a social security and social insurance system is garnering attention.56 The Chinese model of legal transplantation has had significant impacts on social transition and economic development. It facilitates the integration of the existing system with the transplanted system by reducing the conflicts be- tween them; at the same time, it exerts enormous momentum for social transi- tion. A good example is in the field of foreign investment: China has success- fully introduced many foreign laws and at the same time kept transplanted laws compatible with society. Thus, the transplanted laws and mechanisms maintain their vitality and effectiveness in the Chinese environment while promoting the transformation of the old legal and social systems. This model creates a vital framework that is capable of accommodating the contradictions of innovation and status quo and of reform and stability. The Chinese model promotes a mixed legal system. China’s current legal system is an open system that has absorbed positive experience from many foreign and international systems. It is based on a continental legal tradi- tion and actively borrows from the common law tradition, for example, in the fields of commercial law and banking law. This mode of transplantation implements the cost-effective formation of a modern legal system in line with international practice and development in other countries. Legal transplanta- tion has the advantage of providing legal rules more advanced than existing ones in developing countries. Rather than following the conventional method of going through all the developmental stages, legal transplantation may help a developing country effectively and efficiently upgrade its old-fashioned system. When China started to foster social reform and economic develop- ment, it could not wait for slow autogenous development but looked at more advanced systems with experience in the market economy; nor could it ac- cept the wholesale transplantation of foreign legal systems. By using this new innovative method of legal transplantation, China adopted market rules and mechanisms that have proved successful in other countries and successfully built a new market system and developed new market behavior patterns. The Chinese model pushes social reform and development. Chinese legal transplantation is never made without a clear purpose; therefore, legal trans- plantation is always directed toward tackling particular problems or issues. This problem-oriented approach is based on social reality and effectively 56 See Chen Xiaojun, On Contract Law Evolution in China, 6 Commercial L. Research (1999); Yu Guohua, On Comparative Study of China’s Contract Law, 2 Exploration (2000); Li Xiaoming, On the Presumption of Innocence Principle and Its Legislation, 6 China Prosecutor (2005); Wu Weishan, Calling for Legislative Efforts for Presumption of Innocence, 7 People’s Forum (2005); Wei Zong, Major Points of Administrative Litigation Law, 6 China Legal Science (1988); Ren Erxin, Economic Analysis of Commercial Legislation in China, 2 Gansu College of Pol. & L. Rev. (2001); Chen Yadong, Several Important Issues in Social Insurance Law Making, 6 Social Protec- tion Research (2009). Legal Transplantation and Legal Development in Transitional China 177 plants the transplanted rules in Chinese soil. The function and potential effect of facilitating social development are embedded at the beginning of any process of transplantation. Conclusion Although some scholars claim that “the amount of innovation in law is small and borrowing and imitation is of central importance in understanding the course of legal change,”57 China’s experience shows that legal transplantation as a means of legal reform and development requires innovation: innovation in the methods and ways of transplantation, and innovation in the content of transplanted laws and mechanisms to ensure that they fit into the recipient le- gal system. Legal transplantation is conducted not for the transplantation per se but for social development. The Chinese approach toward legal transplan- tation and the selective strategy of transplantation constitute an innovative model that enables the recipient legal system to be reformed and revitalized, which in return empowers society to accept successful experience from other countries and to rise to the challenges of social transition, modernization, and globalization. 57 Orucu, supra note 13. 179 Rule of Law as a Watermark China’s Legal and Judicial Challenges Stéphanie Balme Because the law and legal systems are crucial in promoting business interac- tions in the course of globalization, one might well ask, what is the status of the law and the legal system in China, the world’s second-biggest economy?1 This chapter answers that question by examining the major turning points in Chinese legal theory and legal practices since the 1990s, when China be- came a global economic and political actor. It covers some of the major ac- complishments of the People’s Republic of China (PRC) since the end of the Mao era and the beginning of Deng Xiaoping’s “open door policy” in 1978 and after China’s accession to the World Trade Organization (WTO) in 2001. Under Deng Xiaoping, law reforms legitimized the process of economic change. The legal framework affected business growth, while China’s wealth helped build a modern court system. Generally, access to justice for ordinary citizens is bet- ter today than ever before in Chinese history. After three decades, reform objectives have evolved from quantitative reforms to more qualitative reforms. This chapter explores some of the key constraints and challenges facing China today in terms of legal and judicial practices. The lack of guarantee to a fair trial is a recurring concern. One might well ask if Chinese law is inherently unfair because it denies due process or be- cause of deficient enforcement mechanisms. Reform of China’s legal and judi- cial systems relies on a balance among the country’s ruling party and various legal groups with diverging opinions and standards. Supremacy of the con- stitution, the law in action rather than in statutes, and legal certainty are fun- damental challenges in building a rule of law in China. Legal certainty refers to clarity, predictability, and fairness in the implementation of legal rules. New to China’s legal tradition, this Western standard has been translated into Chinese ( falü quedingxing) even though it does not yet have a legal recognition. The author wishes to thank Professor Wang Chenguang (Tsinghua University), Ms. Marina Lou, and M. Can Zhao (Sciences Po Paris) for their comments on an earlier version of this chapter. The author is entirely responsible for its final content. 1 World Bank, Doing Business (World Bank 2004). The World Bank Legal Review180 From Laws of Power to the Power of the Law? The difficulty in establishing a genuine and innovative rule of law in China can be explained by the fact that, at the conceptual level, traditional law has been repeatedly rejected by China’s own lawmakers. The modern law that exists is a combination of a system influenced by Western legality,2 the Maoist legacy (a combination of Stalinist theories with Chinese characteristics), and traditional legal reasoning as well as modern court practices. After the establishment of the PRC in October 1949 by Mao Zedong, a Soviet-style revolutionary regime of criminal justice was implemented. The new government regarded the existing system of law as a straitjacket that aided criminal suspects and in turn restricted its own prosecutorial powers. The anti- rightist movement in 1957, which witnessed the persecution of hundreds of thousands of people, further marginalized the role of law in society. In 1959, the Ministry of Justice was abolished. During the Cultural Revolution, from 1966 to 1976, the poorly shaped legal system, which lacked fundamental stat- utes such as criminal law, civil law, and administrative law, was almost entirely abolished. Only after the disastrous Cultural Revolution did reformist leader Deng Xiaoping use law to promote his policies: legal changes in China in 1978 were a technical response as well as a political answer to the fragmentation of the state under Mao. This is the point at which China began to take the role of law seriously and to embark on the current process of legal construction.3 In assessing China’s main achievements in terms of legal and judicial developments since 1978, this chapter focuses on two areas: the legislative arena and access to justice. Compared to the anarchical and rigorous charis- matic rule of the Maoist period, modern law has become, at least in theory, a legitimate instrument of public action both for authorities and for civil soci- ety. To use Max Weber ’s typology, China has moved from a charismatic type of authority to a more rational-legal authority where legitimacy derives from the existence of a legal order. However, as shown in this chapter, the rheto- ric of the rule of law is often confined to a formula of legal positivism, or pure theory. Important New Regulatory Policies The development of China’s current legal system dates to the late 1970s. The founding text is a speech given by Deng Xiaoping on December 13, 1978, an- nouncing the “policy of opening up,” as well as the official communiqué of December 22, 1978, published at the end of the third plenary session of the 11th Central Committee of the Chinese Communist Party (CCP). This com- muniqué formally abolished the dominant party policy of class struggle and 2 Philip C. Huang, Chinese Civil Justice: Past and Present (Rowman & Littlefield 2010). 3 See Wang Zhenmin & Li Zhenghui, The Rule of Law History, Theory and Criticism, 80(6) L. & Phil. Lib. 647–70 (2007). Rule of Law as a Watermark 181 the orthodox Marxist conception of law, according to which law is an instru- ment of bourgeois or proletarian dictatorship. The period between 1978 and 1982 marked a transition in terms of the Chinese legal system. The CCP clearly controlled the legal reform agenda. With the trial of the Gang of Four (November 1980 to January 1981), the new regime demonstrated its willingness to use legal instruments for dispute reso- lution (despite clear flaws in the trial, such as insufficient legal representa- tion, evidence errors, and political instruction to the special court). The work carried out since then has been considerable: restoration of the Ministry of Justice, rehabilitation of victims of the Cultural Revolution and the antiright- ist movement, and enactment of a new constitution, followed by a decade referred to by some Western academics as “legal bulimia.” The Struggle between Two Philosophies: Rule by Law and Rule of Law The idea of “rule by law” gradually emerged as the nation transformed from a planned economy to a state market economy. The fifth National People’s Con- gress (NPC) adopted the current constitution of the PRC on December 4, 1982. Comprising 138 articles, the constitution reflects a major change that shifts the primary task of the state from a class struggle to economic development and social reform. It stipulates the objectives of the state, the fundamental po- litical and economic systems of the country, a list of basic citizens’ rights, and the structure and power of the political regime. In June 1985, the first of a series of educational campaigns on the “popular- ization of the law” (pufa) was launched with the idea of creating a Chinese “so- ciety governed by law” ( fazhi shehui) and not “rule by men” (renzhi). The main slogan was a call to “reinforce the legal system and improve legislative qual- ity” ( jianquan de lifa zhidu yu hao de lifa zhiliang). In the 1990s, China adapted many international economic and trade laws with a view to the country’s ac- cession to the WTO. Over a period of more than 20 years, a genuine system of economic and trade laws was thus instituted. Until 2004, constitutional amendments were concerned almost exclusively with changing the orthodoxy of economic matters: namely, the diversification of property rights (1988), the establishment of a socialist market economy (1993), the acceptance or recogni- tion of the individual and semiprivate economy (1999), and the recognition of private property rights (2004).4 Moreover, based on previously existing contract laws, the 1999 economic contract law (symbolically promulgated on October 1, the date of the found- ing of the PRC) further validated the principles of autonomy, freedom, and equality of contracting parties. The law is voluminous (more than 400 arti- cles) and was rapidly disseminated in consideration of investors, particularly 4 See also Donald Clarke, Peter Murrell, & Susan Whiting, The Role of Law in China’s Economic De- velopment, available at http://econweb.umd.edu/~murrell/articles/ChinaInstitutions.pdf. http://econweb.umd.edu/~murrell/articles/ChinaInstitutions.pdf The World Bank Legal Review182 foreigners.5 Contract law is now involved in almost every commercial transac- tion in China. Article 26 gives contracting parties the right to request adjust- ment or even rescission of a valid contract but also sets up strict precedents. It aims to bring more certainty to an uncertain economic situation, stating: After a contract is legally formed, in view of objective circumstances not anticipated by the parties when the contract was formed, caused neither by force majeure nor commercial risks, and significant changes occur such that continuing the performance of the contract is unfair and inequitable to one party or the objective of the con- tract cannot be fulfilled, then a party or both parties may request the People’s Court to modify or rescind this contract. Ten years later, in the aftermath of the international economic crisis, the Supreme People’s Court (SPC) issued a judicial interpretation of the 1999 eco- nomic contract law to provide guidance on the right to rescind or modify a contract when a “fundamental change of circumstances” has occurred. A New Objective: “An Administration Based on Law” Between the mid-1980s and China’s entry into the WTO in December 2001, the government focused on enhancing the administrative law system to control governmental authority, which had previously been unlimited, and on adapt- ing the legal system to comply with international norms. This period saw the re-emergence of administrative law and use of the slogan “an administration based on law” ( yifa xingzheng). By the mid-1990s, theories on administrative law were said to be “exploding,”6 with the appointment of more administra- tive law professors and the founding of the National School of Administration (now called the Chinese Academy of Governance). In April 1989, a new administrative litigation law allowed citizens and all legal persons to bring legal challenges against “specific administrative actions.” Through the mid-2000s, various regulations were passed to allow administrative sanctions, such as the Regulations on Public Security Manage- ment and Sanctions (Zhi’an guanli chufa tiaoli), and to restrict the power of administrative organs. Passed in the mid-1990s, the State Compensation Law (Article 2) states: Where State organs or State functionaries, in violation of the law, abuse their functions and powers infringing upon the lawful rights and interests of the citizens, legal persons and other organizations, thereby causing damage to them, the victims shall have the right to State compensation in accordance with this Law.7 5 Available at http://www.law-lib.com/law/. 6 See Zhang Li, Le contrôle juridictionnel de la légalité des actes administratifs en Chine: Eléments d’analyse comparée des contentieux administratifs chinois et français (Bruylant 2010). 7 http://en.chinacourt.org/public/detail.php?id=109. http://en.chinacourt.org/public/detail.php?id=109 http://www.law-lib.com/law/ Rule of Law as a Watermark 183 Other notable laws were the Law on Administrative Punishments (1996), the Law on Administrative Supervision (1997), the Implementation Regula- tions (2004), and the Administrative Licensing Law (2004).8 In ancient China, people beat a drum outside the government offices ( ya- men) to start litigation, to petition a visiting imperial envoy, or “to appeal to the emperor” ( gao yu zhuang). As recently as a few decades ago, the petition system had not been standardized. Under Mao, the government developed a comprehensive network of agencies, the xinfang (letters and visits) offices, throughout the county, as well as a petition system (shangfang). These mecha- nisms were “to petition the government for a redress of grievances by means of letters (xin) or visits ( fang),” according to Isabelle Thireau and Hua Linshan.9 The xinfang system today looks different. Under Mao, only people defined as “legitimate” could express grievances. Nowadays, the xinfang offices must, in principle, allow anyone to exercise his or her constitutional rights. Also, under Mao, the petition system mostly involved the denunciation of enemies and counterrevolutionaries. Now, it aims to maintain social stability by com- pensating people and solving people’s problems. In May 2005, a principle of “solving problems at the grassroots level” (ba xinfang wenti jiejue zai jiceng) was adopted. For the first time, an individual or organization could not retaliate against petitioners; if it did, it would face legal action. Although there has been an increase in the number of petitioners (12.72 million letters, calls, or visits in 2003, for example) and a growing number of visits, the success rate (in terms of petitioners’ cases being accepted) for these visits has always been low, less than 1 percent, according to unofficial statements. In the wake of Li Maorun v. Langzhong Police Station in 2001, citizens can sue local governments for actions in violation of their rights, including ad- ministrative punishments, administrative coercive measures, interference with the operation of enterprises, refusal to take action or perform an obli- gation, unlawful demands for performance of duties, and violations of indi- vidual rights or property rights. Cases commonly involve encroachment by the government on the interests and rights of ordinary citizens, inadequate compensation for land appropriation, illegal land seizures, and expropriation or house demolition. Since the mid-2000s, administrative litigation and land- mark cases involving the government have increased as citizens become more comfortable using legal measures to protect their property from government violation. The relationship between the xinfang system and the judicial system re- mains unclear. In 2011, it is still difficult for the judiciary to give transparent and consistent judgments or efficient enforcement. Judicial review of government action is not permitted in situations of “national defense,” a loosely interpret- ed concept, or foreign affairs. In addition, judicial review is not permitted for 8 See Chen Jianfu, Chinese Law: Context and Transformation 207–60 (Martinus Nijhoff, Brill Academic 2008). 9 Isabelle Thireau & Hua Linshan, Les ruses de la démocratie: Protester en Chine (Le Seuil 2010). The World Bank Legal Review184 “abstract administrative action,” which refers to rule and policy-making activ- ities. The relationship between the state and citizens in public administration is still problematic in terms of not being regulated by due process. A Growing Recognition of Labor and Economic Rights By the late 1990s, restructuring of state-owned enterprises (SOEs) had led to the closure, merger, or privatization of underperforming SOEs and the laying off of more than 30 million workers (xiagang zhigong). Although various ar- rangements were made for the laid-off workers (for example, buying out em- ployment, reducing salaries, and providing assistance for self-employment), the smashing of the “iron rice bowl” (i.e., job security and guaranteed ben- efits) triggered massive labor disputes and unrest. Scholars and think tanks developed a five-year program (1996–2001) for the government with the objective of developing labor protection laws in the new market situation. The Labor Law of 1999 (Laodong Fa) states that it will “protect the legitimate rights and interests of laborers, re-adjust labor rela- tionship, establish and safeguard the labor system compatible to the socialist market economy, and promote economic development and social progress” (Article 1). It further states that laborers have the right to equal treatment, choose occupations, ob- tain remunerations, take rests, have holidays and leaves, receive labor safety and sanitation protection, get training in professional skills, enjoy social insurance and welfare treatment, and submit ap- plications for settlement of labor disputes, and other labor rights stipulated by law. (Article 3) China’s Labor Law of January 1, 2008, requires that labor contracts be in writing and limits the use of term contracts and probationary periods for em- ployees. Their length of probationary periods is limited based on the terms of the employment contract, with a maximum of six months. “Virtually every violation of the law gives the employee the right to sue the employer for pen- alties and damages in the local employment arbitration bureau or in the local courts,” explains lawyer Steve Dickinson.10 In March 2001, China ratified the International Covenant on Economic, Social, and Cultural Rights, but it still places a reservation on obligations re- garding Article 8, which guarantees trade union rights and the right to free- dom of association. Legislative activity in this area developed rapidly as the workers’ movement intensified in 2007 and 2008. Four important laws were adopted to face this new legal challenge: the Law on Prevention and Treat- ment of Occupational Diseases, the Employment Promotion Law, the Law on Labor Dispute Mediation and Arbitration, and the Social Insurance Law. 10 Steve Dickinson, China’s New Labor Law: Power to the People, China International Business Magazine (2007), available at http://www.chinalawblog.com. http://www.chinalawblog.com Rule of Law as a Watermark 185 Legal Empowerment at the Local Level According to Zhu Jingwen’s quantitative measure of rule of law reforms in China, in 1979, there were 15 laws, 68 administrative regulations, and 72 local regulations. In 2006, there were 36 laws, 164 national administrative regula- tions, and 14,124 local regulations.11 Thus, between 1979 and 2006, the average annual growth of national laws and national administrative regulations was around 11 percent, compared with more than 30 percent for local regulations. These figures reveal that there was a massive legislative effort over 30 years, particularly at the local level. This situation contributed to a growing deficit of legal visibility and accessibility of regulations and laws in China. With China’s integration into the international economy through the WTO and the increasing development of the Internet, the decade of 2000–2010 was characterized by new and multiple interactions between authorities and civil society in defining the legal reform agenda. The Law on Legislation (Lifa Fa), enacted in March 2000, was designed to rationalize the system and regu- late legislative processes. It also set up procedures for public participation, such as publication of legislative drafts and public hearings (tingzheng). In March 2008, the chairman of the Standing Committee of the National People’s Congress, Wu Bangguo, controversially announced that a socialist le- gal system with Chinese characteristics had been fundamentally accomplished. “There are laws to cover basically every area of economic, political, cultural and social activities in the country,” he stated in a report on China’s Assembly.12 Table 1. Number of Laws and Regulations in China, 1979-2005 Year Law Administrative Regulation Local Regulation Amount 1979 15 68 72 404 1982 21 145 485 1055 1989 15 111 1,508 3,339 1991 27 111 1,601 3,879 1996 40 118 3,475 6,349 2000 31 171 5,628 8,846 2005 36 164 14,124 18,121 Average Annual Rate of Growth 11.8% 10.7% 33.1% 21.3% Source: Zhu Jingwen, Report on China Law Development: Database and Indicators (RUC Press 2007). Translation S. Balme. 11 Zhu Jingwen, Report on China Law Development: Database and Indicators (RUC Press 2007). 12 Id. The World Bank Legal Review186 Toward Better Access to Justice China’s judicial system resumed in 1979, after the chaotic events of the Cultural Revolution. The reform of the judiciary must be assessed through the lens of judicial transformation under the Maoist regime. During successive Maoist campaigns, particularly in 1950–53, 1957–58, 1967–71, and 1975–76, the num- ber of cases registered as criminal cases exceeded the number of civil cases. Post-Mao China’s legal and judicial reforms were characterized by stop-and- go cycles. For example, the last historical period, after Mao’s death, when the number of criminal cases almost reached the number of civil cases was during the 1983 “strike hard” ( yanda) campaign against criminal suspects. In 1981, Deng Xiaoping used the trial of the Gang of Four to display the regime’s intentions to govern with reference to the law instead of by indi- vidual political decisions. Since then, ordinary, daily justice has been largely depoliticized and professionalized. According to Professor Zhu Jingwen, the percentage of judgments made through formal procedures increased from 16.5 percent to 35.7 percent between the mid-1990s and the mid-2000s.13 Ac- cording to the China National Bureau of Statistics, recent growth in the num- ber of civil disputes has been irregular: from 5,346,986 in 2008 to 6,458,573 in 2009 and 4,980,721 in 2010. Altogether, between 2008 and 2010, Chinese juris- dictions received and adjudicated 16,786,280 cases. The number of marriage and heritage disputes (1,286,437 cases in 2008; 1,423,180 cases in 2010) and the number of contract disputes (2,905,603 cases in 2008; 3,222,555 cases in 2010) also increased during this period.14 In 30 years, successive reform plans have evolved from quantitative re- forms (reestablishing a judiciary, building courts, hiring judges, and training lawyers) to more qualitative reforms such as enhancing the quality of judi- cial training, improving access to justice, and creating alternative dispute- resolution techniques. For litigants who have access to the Internet, judi- cial services are increasingly available in China, and, according to author Bi Shaofeng, legal aid services are more developed than in the past in coastal areas and in remote places.15 However, few legal aid offices or legal clinics (falü yuanzhusuo, falü zhensuo) exist in rural areas or for nonprivileged categories of the population such as the migrant workers or disabled persons. An Emerging Country with an Emerging Judiciary China is a centralized state with a decentralized judicial administration that is largely funded and supervised by local governments. All civil servants in the judicial organs are appointed by local people’s congresses. The SPC, not the Ministry of Justice, supervises the judiciary at various levels through a hierar- 13 Zhu Jingwen, Judicial Transformation and Legal Sociology in China (2008). 14 http://www.stats.gov.cn. 15 Bi Shaofeng, Rural Legal Clinics: An Educational Handbook (China Law Press 2010). http://www.stats.gov.cn Rule of Law as a Watermark 187 chical system of more than 3,000 courts. Politics and law committees (Zhengfa wei) of the CCP at various levels are in charge of the direction and cooperation of courts, procuratorates, and police. The committees ensure the CCP’s leader- ship over judicial issues in every tribunal. The public security organs ( gong’an jiguan) represent the principal police authority, which is responsible for con- ducting criminal investigations and, with the authorization of procuratorates (except under certain circumstances), arresting suspects. The committee also ensures the CCP’s leadership over judicial issues in every tribunal. Lawyers are kept under control by both the legislative and the judicial branches. Since 2002, anyone with a university degree can take the Unified Judicial Exam (Tongyi sifa kaoshi), which is common to all legal professions, including lawyers, judges, and prosecutors. Every year, approximately 300,000 candi- dates (50 percent of whom are from 11 provinces, although the largest por- tion are from Beijing and Guangdong) take this competitive exam. Since 2010, the passing rate has been slightly above 20 percent. Among the 90 percent of undergraduates who take the exam, only a minority are law students who specialize in law. However, overall, the number of graduates from law schools or legal institutes in China increased from around 8,000 in 1996 to more than 135,000 in 2010. There are more than 640 “real” law schools around the coun- try, and the legal education market is booming. In 2002, among the 360,000 candidates who registered to take the exam in order to obtain a Certificate of Legal Practice, the success rate was 8 percent, in- cluding a very small proportion of candidates from the remote western regions. In 1980, the Provisional Law on Lawyering in the PRC defined lawyers as “state legal workers” and law offices as “legal counseling services” ( falü gu- wenchu). In 1986, the Chinese National Lawyer’s Association was established in Beijing, with branches throughout the country. By 2012, a lawyer was de- fined as “a professional who legally obtains a lawyer’s certificate and pro- vides the society with legal services.” The Lawyers Law (Lüshi fa), as amended in October 2007, recognized the specificity of the lawyers as a legal profession. However, judges and prosecutors still greatly outnumber lawyers. Except in the biggest cities and along the coastal provinces, the total num- ber of lawyers per habitant in China is very low. In addition, the distribution of lawyers in China is uneven. In 1996, 100,198 people were “employed as attorneys” (this number refers to all categories of personnel working in a law firm; lüshi gongzuo renyuan); in 2011, this number was 204,000.16 This category can be divided between full-time attorneys (47,879; zhuanzhi lüshi), part-time attorneys (20,243; jianzhi lüshi), and legal workers ( falü gongzuozhe). From 1998 to 2006, the number of people employed as “lawyers” increased from 101,220 to 164,516. The number of full-time attorneys increased dramatically (from 51,008 to 122,242), while the number of so-called nonprofessional lawyers (not employed on a full-time basis) decreased from 17,958 to 8,068. In 2002, after 16 http://www.stats.gov.cn. http://www.stats.gov.cn The World Bank Legal Review188 introduction of the Unified Judicial Exam for the professions of lawyers, judges, and procuratorates, the number of nonprofessional lawyers (or legal workers) decreased considerably. A majority of lawyers are now on full-time status and are supposedly fully qualified. According to Sida Liu and Ethan Michelson’s studies on the development of the legal profession in China, the economic and institutional “vulnerabili- ties” of Chinese lawyers constitute a difficult issue. Lawyers in medium-size cities often have to rely on state judicial agencies to find business and guaran- tee the annual renewal of their license. Lawyers have to contend with “dead- beat clients who fail to pay their legal fees, exploitative employers who fail to support their professional work and to protect their social security,” and insti- tutional actors “who interfere with and obstruct [the lawyers’] work.”17 This situation weakens the role of lawyers in courts and constrains their capacity to represent clients. China’s Judges Law (Faguan fa) was adopted in 1997 and amended in 2001 after the establishment of the Unified Judicial Exam. Theoretically and legally, all judges in China have passed the exam. Their status is somewhat ambiguous: they are called “judge” ( faguan) in everyday life and “adjudica- tor” (shenpanyuan) in court. Article 2 of the Judges Law states that “judges are the judicial personnel who exercise the judicial authority of the State.” They shall “faithfully implement the constitution and laws, and serve the people whole-heartedly” (Article 3). The functions and duties of judges in China are different from those of their counterparts in the West; Chinese judges must “take part in a trial as a member of a collegial panel or try a case alone accord- ing to law” as well as perform all other functions and duties as provided by law (Article 5). In addition, they must accept legal supervision and “supervi- sion by the masses” (Article 7). In 1999, the SPC published its first guiding instrument for enhancing the judiciary: the Five-Year Reform Program for People’s Courts. This document aimed to enhance the efficiency and fairness of adjudication by reforming the courts’ “inquisitorial” trial pattern to a more “adversarial” trial pattern. Since then, the main slogan of the SPC has been “judicial efficiency and judicial fairness” (sifa xiaolü yu sifa gongzheng). In 2004, Measures on the Management of the Publication of Judgment Documents and Several Opinions of the Supreme People’s Court on Strengthening the Work on Judicial Openness in People’s Courts were published, completing the transition. A second Five-Year Reform Program for People’s Courts (2004–08) stressed the importance of bringing greater professionalism and integrity to the judi- ciary. The reform program called for courts to begin “exploring within a certain geographic area the implementation of a system of uniform recruitment and 17 See Ethan Michelson & Sida Liu, What Do Chinese Lawyers Want? Political Values and Legal Practice (Brookings Institution 2010), available at http://www.indiana.edu/~emsoc/Publi- cations/Chapter14_Michelson_Liu.pdf. See also local reports such as those found at http:// www.fabang.com/a/20111207/460510.html. http://www.indiana.edu/~emsoc/Publi�cations/Chapter14_Michelson_Liu.pdf http://www.indiana.edu/~emsoc/Publi�cations/Chapter14_Michelson_Liu.pdf http://www.fabang.com/a/20111207/460510.html http://www.fabang.com/a/20111207/460510.html Rule of Law as a Watermark 189 uniform assignment of judges for duties in the basic-level courts.” The SPC also explored the establishment of guaranteed national funding for local courts by inserting provisions in central and provincial government budgets. Conflict of governance (budget, nomination, management, and judicial inde- pendence) between central and local judicial authorities remains a subject of concern for some judicial authorities. A network of modern courts, inspired by Western architectural styles (Greek temple or US Supreme Court–style), affects citizens’ and litigants’ per- ception of the judiciary. To that end, the SPC developed a policy of erecting new court buildings and investing in hardware and access to justice. Many older court buildings have been demolished. In 2007, the litigation fees’ man- agement system was reformed, separating the collection of litigation fees from courts’ expenditures. Litigation fees are no longer directly handed to courts but are paid instead by litigants through designated banks that are often directly located within the courts. In April 2007, a regulation from the State Council (the Chinese government) unified charging standards and promoted lower litigation fees for civil and administrative disputes. This regulation to reduce litigation fees “to diminish ordinary people’s burden and facilitate access to justice” had a direct and immediate impact on the Chinese courts’ source of income.18 In September 2007, an article in the Legal Daily explained that courts lost an average of 53.55 percent of their rev- enues due to this change. Consequently, 2.4 billion renminbi was allocated to compensate local tribunals for the losses in budgets. In 2008 and 2009, the situation improved. Most courts have received partial or total compensation for losses and have implemented the regulation forbidding arbitrary fees. In March 2009, the SPC promulgated a third Five-Year Program for the Reform of People’s Courts (2009–13), initiating a new round of court modern- ization. This program was formulated with a view to maintaining social fair- ness and justice and satisfying the new demands and new expectations of the general public regarding the judiciary. Much attention was paid to aspects of “judicial efficiency” such as the cost and speed of judicial procedures as well as the enforcement of judicial decisions. These qualities are crucial in the effort to build trust and confidence among litigants. Since the mid-2000s, mediation has been given great significance by the Chinese Communist Party and therefore by all judicial organs. In 2009, the SPC, in its annual Report on the Work of People’s Courts, put forward the policy of mediation first, followed by a combination of mediation and adjudica- tion. The same year, the SPC promulgated the Opinion on the Establishment 18 See also the Report on the Implementation of the Central and Local Budgets for 2006 and on the Draft Central and Local Budgets for 2007, 9 (Ministry of Finance 2007), which states that in 2006, the central authorities supported the strengthening of government authority at the county and township levels. Funds were set aside in the central budget in 2006 to help lower-level procuratorial, judicial, and public security departments to improve conditions for process- ing cases. Available at http://www.chinaview.cn. http://www.chinaview.cn The World Bank Legal Review190 and Improvement of Dispute-Settlement Mechanisms with Coordination between Litigious and Non-Litigious Means. This opinion was a major step in the pro- motion of the development of multiple dispute-settlement mechanisms, including arbitration and administrative and civil mediation, to avoid the danger of forced, or imposed mediation. In June 2012, the SPC revealed a detailed Working Guide to Improve Judicial Efficiency (Tigaosifa xiaolu gongzuo zhinan). The guide’s emphasis is on the quality and the effectiveness of justice to enhance judicial efficiency, which refers to a sense of providing accessible, professional, and fair dispute-settlement services. This implies incentive mechanisms for judges, the simplification of complicated dispute settlement procedures, the professionalization of the judicial manage- ment system, and the reinforcement of a variety of dispute resolution mecha- nisms, including some alternative or nonlitigation procedures. The guide is the product of an innovative international collaboration with the European Union, the UN Development Programme (UNDP), and the Supreme People’s Court. It will provide a benchmark for local courts to use to evaluate their efficiency.19 China has stated its intention to undertake certain reforms, such as promot- ing open, publicly accessible courtroom proceedings, more media interaction and public outreach, and more public access to written judgments including judges’ rationale. Thus far, these reforms have been uneven and limited in terms of both their substance and their geographic scope. Although several reforms have been designed to strengthen the professionalism of the judiciary and to ad- dress judicial corruption and build public confidence, such as the passage of an ethics code for judges, they still need to be institutionalized and fairly, uni- formly, and effectively enforced. The improvement of the “hardware” of the legal and judicial systems has largely benefited plaintiffs and citizens in China. Civil justice in China has been overhauled. A broad range of reforms have been adopted, covering in- stitutional as well as procedural aspects. Although the general context is dif- ferent, the global aim of the reforms has been much the same as elsewhere in Europe where civil justice is being reformed: to ensure fair justice with greater efficiency in terms of both time and costs, in response to an increasing demand from the public at large. The Status of Human Rights vs Human Rights in Action In the late 1980s, the term fazhi (legal system) was gradually abandoned in favor of its homonym fazhi (rule of law), which implies the necessity of the establishment of a formal system to guarantee people’s rights and to check governmental power. In December 1999, a notion similar to the concept of 19 See Stéphanie Balme, Review of Efforts to Improve Judicial Efficiency and Costs (Governance for Equitable Development Aug. 2012). Rule of Law as a Watermark 191 rule of law but not yet due process was incorporated into China’s constitution. Article 5 states: No law or administrative or local rule and regulation shall con- travene the constitution. All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the constitution and the law. All acts in violation of the constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the constitution and the law. Another major step toward reforming the post-Mao state is the progres- sive integration of human rights into Chinese law. Until the 1980s, human rights discourses were ignored or attacked. Today, Marxist critics of human rights still exist among some CCP leaders who con- tinue to advocate historical materialism, deny the notion of jus naturalism, em- phasize collective rights over individual rights, advocate equality rather than liberty, and prefer “real rights” (the right of subsistence, for example) over so-called formal rights, such as freedom of expression. However, Beijing has signed—if not ratified—most of the existing inter- national treaties or conventions related to human rights, including the Inter- national Convention on the Elimination of All Forms of Racial Discrimination (March 1966), the Convention on the Elimination of All Forms of Discrimina- tion against Women (December 1979), the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (of December 1984; although China does not yet recognize the competence of the committee against torture); the Convention on the Rights of the Child (No- vember 1989), the International Covenant on Economic, Social, and Cultural Rights (ICESC; 1997) and the International Covenant on Civil and Political Rights (ICCPR; 1998). In 1991, the Chinese government published its first white paper on human rights. In 2009, a national action plan on human rights was officially launched, demonstrating a general yet genuine recognition of the morality of human rights as described by Michael Perry: “each and every born human being has inherent dignity which is inviolable.”20 The 1996 Criminal Procedure Law (CPL) recognizes the “principle of pre- sumption of innocence” (wuzui tuiding) of innocence without adopting the actual words, which are similar to those found in Article 11 of the Universal Declaration of Human Rights.21 Article 162(3) of the 1996 CPL states that, “if 20 Michael J. Perry, Toward a Theory of Human Rights (Cambridge U. Press 2006). 21 According to the law, everyone charged with a penal offense has the right to be presumed innocent until proved guilty in a public trial at which he or she has had all the guarantees necessary for his or her defense. Stéphanie Balme, La justice pénale en Chine: Son évolution et son avenir; Analyse du projet 2011 de réformes de la Loi de procédure pénale (Institut des Hautes Etudes sur la Justice 2012); available at http://www.ihej.org/la-justice-penale-en-chine-son -evolution-et-son-avenir/. http://www.ihej.org/la-justice-penale-en-chine-son-evolution-et-son-avenir/ http://www.ihej.org/la-justice-penale-en-chine-son-evolution-et-son-avenir/ The World Bank Legal Review192 the evidence is insufficient and thus the defendant cannot be found guilty, he/she shall be pronounced innocent accordingly on account of the fact that the evidence is insufficient and the accusation unfounded.” The right to life and the protection against cruel, inhuman, and degrading punishments (International Covenant on Civil and Political Rights, Article 6, paragraph 1) restricts the use of the death penalty to the most serious crimes. China’s Criminal Law, Article 40, stipulates: “the death penalty should only be applied to criminals who have committed extremely serious crimes and be restricted and excluded for juveniles, pregnant women, mothers and the insane.” A penalty of death must be based on clear and convincing evidence, leaving no room for other explanations of the facts. The maximum term for concurrently applied sentences was raised from 20 to 25 years (Article 69), and individuals originally sentenced to life imprison- ment will be obliged to serve longer prison terms before they can be released through sentence reduction (Article 81). The most serious offenders will not be offered sentence reduction. However, the law requires lenient treatment of offenders aged 75 and older, and judges have been given more specific in- structions about how “lenient punishment” should be applied in sentencing (Articles 17 and 49). Additionally, in 2010, 13 crimes (among a total of 68) were removed from death penalty eligibility under criminal law. The official contestation, in the 1990s—following the Tiananmen Square incident—of the principle of the universality of human rights came not so much from a supposed Confucian tradition, but rather from a Marxist cri- tique. Human rights still are sometimes considered a threat to the political status quo. Finally, this contestation is paradoxically growing at a time when a new generation of human rights (e.g., animal rights and rights to reputation) are emerging in China. Both a developing country and an emerging power, Chinese authorities question the path of contemporary developed societies on human rights and the rule of law. However, it seems that China’s authorities also do not want their performance to be subjected to international scrutiny. The diversity of voices in China makes the judicial and legal systems more difficult to change now than immediately after the Cultural Revolution. Open debates, the vitality of public opinion, reflections on publicized trials, and ju- dicial cases are also assets as China’s rule of law faces new challenges. Rule of Law in China: Current Challenges and Future Perspectives Although the framework of law that has evolved since the end of the Cultural Revolution provides a foundation for rule of law, a more determined and sus- tained effort is necessary to reform China’s legal regime in depth. Experts observed a significant regression of the rule of law in the 2000s, under the guise of preserving social harmony. Wang Shengjun, the president Rule of Law as a Watermark 193 of the SPC, publicly advocated the policy of the “three supremes”: first, the supremacy of the party, then of the people, and finally of the constitution and the law. The many legal and judicial challenges faced by China can be sum- marized by the increasingly urgent need to create a systematic legal frame- work and a hierarchy of norms respectful of both collective and individual rights. Areas of potential reform include legal sources, legal writing and rea- soning, due process, the stability of legal institutions, the predictability of the judicial process, and legal certainty. Chinese judges are civil servants with no real power. The Ministry of Pub- lic Security, the principal police authority, holds the power to conduct inves- tigations and arrest suspects in criminal cases; a Politics and Law Committee (Zhengfa wei) is in charge of the direction and cooperation of people’s courts, people’s procuratorates, and the police. The committee also ensures the CCP’s leadership over judicial issues in every tribunal. Lawyers are kept under strict control by both the legislative and the executive branches. Conflicts of Norms After more than three decades of reforms, China’s legal developments are not immune from defects; some are serious, such as a lack of hierarchy of norms and inconsistency among rules, the absence of a transparent and comprehen- sive constitutional review system (weixian shencha), and a lack of harmoni- zation of law and judgments. Also, the CCP charter and regulations are de facto full-fledged laws. What, then, is China’s grundnorm? To show the complexity of the situation in China, this section focuses on the evolution of three domains of law: criminal procedure, property, and an- tidiscrimination. In criminal procedure and property law, abuses and legal uncertainty are mainly a consequence of unlawful behaviors, which are fa- cilitated by the vagueness and ambiguities of the law. In antidiscrimination regulations, legal discrimination leads to behavioral abuses against the basic principles of rule of law. The Criminal Procedure Law (CPL; 1996) and its amendments (2012) typ- ify how the inconsistencies among laws at different levels generate an opposi- tion to judicial discretion and foster a sense of arbitrariness. Ambiguities of and inconsistences among legal norms affect their credibility and reveal that the court system, which is not even charged with interpreting the law, is not a powerful institution. Chinese courts play very few roles in supervising the police during criminal investigations. Another example: the system of reha- bilitation through labor (RTL) (laojiao) is an administrative sanction taken by the police and the RTL committee without interference from the procuratorate or the tribunal. Under the RTL system, a person can be deprived of liberty without having interacted with any judicial authority. Although the CPL was revised in 2012, many ambiguities remain both with and within the Lawyers Law. Amended in October 2007, the Lawyers Law The World Bank Legal Review194 allows lawyers to meet with clients without the presence of police officers. Lawyers have an obligation of confidentiality but are limited by the fact that theycannot keep certain information secret (Article 38 of the Lawyers Law). In addition, a lawyer can be condemned if he or she influences a client not to con- fess to a crime (Article 38 of the CPL). In China, the absence of a guarantee to the right to a fair trial is a serious issue, especially because the right to remain silent is not clearly established. The CPL stipulates that evidence obtained through torture cannot be used as grounds for a verdict. However, the law emphasizes that accused persons must give “truthful answers” (rushi huida) and that “resistance to answer will be treated severely” (kangju congya). The March 2012 revision of the CPL ex- hibits a punitive philosophy, mainly based on the traditional Marxist notion of crime, and the goal of maintaining public order. (There are more than 60 references to the terms “raison d’Etat” or “state secrets” in the revision.) A lack of empowerment by the judges within the judicial system, in contradistinction to the role played by the public security forces, emphasizes the effectiveness of exceptional police procedures on ordinary judicial procedures. Legal guarantee of ownership rights is a fundamental characteristic of a state that has rule of law. China’s legal system does not provide legal certainty in this regard for the following reasons: the system of ownership is extremely complex in China and public ownership often trumps private ownership; the lack of legal quality (precise rules) leads to legal uncertainty; and the judicial system does not have a strong authority to regulate chaotic legal norms. In 1949, civil codes enacted under the previous, Nationalist, regime were abolished. Land reform policies in 1950 resulted in massive and violent land expropriations and the abolishment of the notion of private property and own- ership rights. The land collectivization that took place during the Maoist pe- riod led to the replacement of the notion of property rights (suoyou quan) with “a system of property” (suoyou zhi). After the Cultural Revolution, the aboli- tion of the people’s communes allowed a growing recognition of the notion of “real rights,” espoused by administrative regulations specifying rules of transfer and the attribution of rights. In 1986, the General Principles of Civil Law (Minfa tongze) defined, for the first time since the Kuomintang’s codes, the notion of property rights. The Rural Land Contracting Law of 2002 (Nongcun tudi chengbao Fa) clari- fied the rights and obligations of the rural household and the agricultural col- lective based on a contractual system (chengbao zhi). In 2007, after a decade of consultations and debates, a Property Law was adopted by 96.9 percent of the 2,889 legislators of the NPC, with 53 delegates opposing and 37 abstaining. In 2004, a constitutional amendment specified that “the lawful private property of citizens is inviolable” (Article 13). Yet, according to the Property Law of 2007, “the state may in the public interest [ gonggong liyi] expropriate or take over land for its use in accordance with the law and provide compat- ible compensation [xiangying buchang]” (Article 10, paragraph 3). Because the Rule of Law as a Watermark 195 notion of public interest is vague and the judiciary has almost no independent authority, the law does not provide protection or legal certainty to the people whose land is being expropriated. The legal system has improved in recent years in that access to property rights is now guaranteed. Still, because urban lands belong to the state and rural lands belong to collective organizations, owners’ rights are limited when expropriations are deemed justified by public authorities. For rural lands, each farmer must be allocated a land parcel based on a contractual system of 30 to 70 years, depending on the status of the land (cultivated land, forest land, etc.). As for nonrural lands, rights are delegated by the state, which can trans- fer, use, and exchange the land (the notion of sûreté in European systems). To fight against the many abusive expropriations that took place in China between 1990 and 2010, new local and administrative regulations have been passed, creating a chaotic legal structure. This lack of legal quality has led to increasing legal uncertainty. For example, a Law on Planification of urban and rural zones (Articles 22–26) was enacted in 2007, as was a resolution amend- ing the Land Management Law (Tudi guanli Fa). These texts present two major amendments to the existing system: “According to the needs of public inter- est, the state can expropriate [zhengshou] or requisition [zhengyong] land and provide adequate compensation.” In other words, the state can expropriate collectively owned land for the purposes of national projects such as dams, railroads, and highways through a transfer of land from collective owner- ship to state ownership, and requisition does not entail a change in owner- ship. The state can also temporarily lease land from a collective for public benefit, but in theory, it must return the land once the lease is over. These provisions include the rights to use and profit from contracted land, to profit from the transmission of the land’s management authority, and to organize and manage one’s own production. Judges review disputes on compensation for expropriated land based on the 2007 Administrative Law on Urban Land and Real Estate Property. According to Article 45 of that law, only the central government (some- times in coordination with provincial governments) can expropriate lands with the precondition of obtaining a “demolishing license.”22 Lands can be expropriated only for public service construction, not for commercial use, and transformation of farmlands into “industrial land” is limited. However, the distinction is primarily administrative, and courts seldom take expropria- tion cases. In most cases, local governments decide expropriations. Persistence of Legal Discrimination When he was working as a consultant to the World Bank on China’s labor legislation in the late 1990s, Ronald Brown noticed a job advertisement that 22 Li Bin, Droit de la Propriété et Expropriation en Droit Chinois (Université Paris I 2010). The World Bank Legal Review196 read, “Seeking an office clerk. Female, decent height and appearance. ‘All five facial organs must be in the right place’ [wu guan duanzheng].”23 In China, discrimination based on physical appearance is common.24 Although general antidiscrimination provisions are included in various laws, administrative regulations and local regulations remain discriminatory.25 The 1982 constitution recognizes that “all citizens are equal before the law” (Article 33). Women enjoy equal rights with men in all spheres of life— political, economic, cultural, and social—including family life (guaranteed by Article 48 of the constitution and the 2005 Law on the Protection of the Rights and Interests of Women). The Labor Law of 1995 states that employees must not be discriminated against on the basis of nationality, gender, or religious belief (Article 12). The 1991 Disabled Persons Protection Law, amended in 2008, protects “the lawful rights and interests of people with disabilities.” Professor Li Dun, a scholar at the Chinese Academy of Social Sciences, showed that the Civil Servants Recruitment Health Check-Up Standard (Gongwuyuan pinyong tijian biaozhun) issued by the Ministry of Health and the Ministry of Human Resources and Social Security was unconstitutional.26 This “standard” prevents people with various physical conditions, includ- ing HIV/AIDS, from taking civil service jobs. It also violates many norms that have superior legal authority, including the Employment Promotion Law and the International Labor Organization Convention on Nondiscrimination in Employment. Although the number of lawsuits against discrimination is increasing, there is little sanction for violations. The first landmark case was that of Zhang Xianzhu in 2002. Zhang was a 25-year-old college graduate who received the highest score on the Wuhu city (Anhui Province) civil service qualification exam but was rejected by the civil service because he tested positive for the hepatitis B virus (HBV). Zhang filed an administrative suit against the local per- sonnel bureau alleging that the rejection of HBV carriers was a discriminatory practice, which violated his fundamental constitutional rights. On April 2, 2003, the Wuhu court issued its judgment, affirming the validity of the gov- ernment regulation while ruling that the decision by the defendant to refuse to 23 Ronald Brown, China’s Employment Discrimination Laws during Economic Transition, 19 Columbia J. Asian L. 361 (Spring 2006). 24 Investigation Report on Hepatitis B Discrimination in China’s Higher Education System (Oct. 2008) by the Yirenping Center (a Chinese NGO operating in Beijing), and Investigation Report on Hepatitis B Discrimination in Multinational Corporations Based in China (Feb. 2009). 25 For further information, see Legal Protection against Employment Discrimination Handbook (Sep. 2007), and Investigation Report on Employment Discrimination in Shenzhen (May 2010). See also Lin Yanling ed., Report on Non-discrimination in Employment: Legal Systems and Practices in Asia (Social Sciences Academic Press 2010). 26 Professor Li Dun was invited by the Ministry of Health to participate in the drafting of The Regulations on HIV Prevention and Treatment. Interview with the author. Rule of Law as a Watermark 197 hire the plaintiff based on his HBV status lacked sufficient evidence. The court refused to grant Zhang’s request to enter the civil service on the ground that the recruitment period was over. However, the court failed to invalidate the discriminatory government regulation on constitutional grounds. A decade later, the judicial decision has not been enforced, but the trend in recent regu- lations regarding public hiring and university admission has mandated that physical tests for employment screening not include testing for HBV. A Weak Constitutional System In China, the lack of respect for the constitution is explained by the de facto absence of a hierarchy of norms (despite a clear theoretical definition of the “sources of the law” [ fa yuan]), resulting in confusion both in the organization and in the legal texts, administrative regulations, and decrees. It can also be explained by the lack of a clear conception of the position of the constitution in the hierarchy of the normative system, despite unambiguous terms used to designate it, such as the “fundamental law” ( genben dafa) or the “mother of all laws” (mufa). The constitution in truth is an abstract political document remote from people’s daily life and social operation. The government and the CCP have a long history of using policy rather than law to steer social development. Every change or amendment of the constitution is initiated by CCP policy changes. This practice results in pay- ing lip service to the constitution and marginalizing its legal function. The constitution then serves as a footnote to party policy and governmental prac- tice. There are numerous examples of liberties taken with the text of the con- stitution and of legal deadlock arising from social complexity and confusion of the legal system due to the absense of consensus on the effective sources of the law. The lack of respect for the constitution testifies to the historical lack of respect for the hierarchy of norms in general, due to their nonexistence in both practical and conceptual terms. However, since the Law on Legislation in 2000 established a principle of unity of the legislative system and initiated a hierarchy of norms, the constitution is theoretically at its highest position. The next challenge lies in the political courage of the government and the CCP to respect the constitution not only in words but in action.27 Another means is to entrust the Supreme People’s Court with a role that is neither recognized in the political system as a whole nor compatible with its present organization, given that the existing system is one of an a posteriori and legislative review of the constitution through the work of the National People’s Congress. While debate on constitutionalism is very rich, it has not yet been fol- lowed by any official call for open debate or adoption. Probably in May 2004, the Law and Regulation Filing Office (Fagui shencha bei’an shi) was created 27 See Cai Dingjian & Wang Chenguang, China’s Journey toward the Rule of Law: Legal Reform, 1978–2008 (Brill 2010). The World Bank Legal Review198 within the Commission for Legal Affairs (Fazhi gongzuo weiyuanhui) of the Standing Committee of the NPC. Constitutional experts have been critical of this new body whose activities and structure have remained secret. Chinese scholars hold the view that a legal apparatus is a common good through which citizens and organizations may achieve justice. They also believe in the theoretical supremacy of the constitution as a means to effec- tively check and control governmental and political power by establishing a constitutional review system. The Western concept of constitutionalism is ac- cepted academically but the political conception of a constitution as a substan- tive legal norm is not. Indeed, in Western rule of law democracies, the constitutionality of the law is intended to give rise to precise and rigorous examination. The constitu- tionality of the law is a matter of legal certainty and judicial consistency, of the practical reliability of legislative arrangements, and of democratic guarantees. Addressing the Role of Judges within the Judicial System Since 2010, judicial reform in China has been more piecemeal than systemic. It also has been oriented more toward access to justice for citizens than toward reform of the system and its actors. As in the rest of the world, litigants in China ask for much better legal services and have higher expectations than in the past. Litigants, via social networks, demand that their disputes be han- dled with greater transparency and uniformity in applying substantive and procedure law. The growing call in China that alternative dispute resolutions and mediation be viewed as intertwined with formal litigation procedures expresses a movement toward “informalizing” legal institutions. In this context, the legal profession faces many challenges in China. One is uneven geographical distribution: in 2011, there were more lawyers in Shang- hai than in the whole of Shaanxi Province, and more lawyers in the city of Shenzhen than in Fujian Province. In 2010, there were 23,000 lawyers in Bei- jing, out of a total estimated 140,000 lawyers nationwide.28 Other problems include an uneven level of professionalization and an accompanying lack of specialization (the number of defense lawyers trained every year in the coun- try is low); an absence of legal recognition of the unique capacity of lawyers to act as agents ad litem; and an inadequate representation of lawyers in courts compared to the number of judges and procuratorates. Also, lawyers’ fees re- main far too high for most litigants. Many non-lawyer legal experts act as agents ad litem in litigation procedures and lawsuits in China. Experts have shown that in China, lawyers face competition from a variety of alternative legal service providers, includ- 28 Beijing Bar Association, interviews with the author in January and May 2012. Rule of Law as a Watermark 199 ing legal workers at grassroots levels and other practitioners, presenting a challenge to the government on how to regulate these competing groups.29 Lack of trust and credibility regarding the court system are among the most pressing issues the government faces. It is important to build trust among judges and all the actors involved in courts’ management; to remain flexible with planned new reforms; and to create mechanisms for institution- alizing changes and build the conditions for achieving sustainable reforms within the judiciary.30 One of the main weaknesses of the Chinese judiciary system is the ex- tremely decentralized administration of a centralized legal system where na- tional laws tend to be abstract and local specificities are given short shrift. The role of people’s courts in the harmonization and convergence (if not unification) of legal practices must be encouraged. The main goal is to cre- ate better cooperation between and consistency of the lawmaking and judi- cial-making process to achieve a greater uniformity in the application of law and to protect citizens. People’s courts should ensure that rules are interpreted consistently throughout the country. This interpretation can be achieved only if courts are given real power and a specific status and specific tasks within the judicial system. Both legal harmonization and consistency of law enforcement require that the judicial body play both legal and moral roles. Reforms need to be oriented toward the reform of the judges’ status. Conclusion During recent decades, the Chinese legal system has undergone a fascinat- ing transformation from barely any law to a relatively comprehensive and complicated network of laws and norms. The foundations of the legal-rational state are undergoing rapid change. The law has been not only an instrument of post-socialist transition, social control, and governance but also a means of social transition and market reform in China. The concept of law is perceived as a modern means of regulation, a tool in the service of this objective. In 30 years, the rule of law rhetoric in China has moved from a concept focused on economic considerations (the Deng Xiaoping era) to one focused on maintaining stability within society and the control of the CCP (during the Hu Jintao–Wen Jiabao era). Yet, the rapid legal development cannot hide the defects in China’s legal system. Besides those mentioned above, the biggest 29 See Terence Halliday, Ethan Michelson, & Sida Liu, China’s Emerging Middle Class: Beyond Economic Transformation, ch. 14 (Cheng Li ed., Brookings Institution Press 2010). 30 See Randall Peerenboom, Economic and Social Rights: The Role of Courts in China (Oct. 17, 2010), available at http://ssrn.com/abstract=http://papers.ssrn.com/sol3/papers.cfm?abstract _id=1693613. http://ssrn.com/abstract=http://papers.ssrn.com/sol3/papers.cfm?abstract _id=1693613 http://ssrn.com/abstract=http://papers.ssrn.com/sol3/papers.cfm?abstract _id=1693613 The World Bank Legal Review200 problem is that the notion of due process of law is underdeveloped because of the lack of constitutional review and the low predictability of legal outcomes. Despite ideological transformations, social changes, and radical economic reforms, the world’s second-biggest economy is not yet governed by the rule of law. Many observers in and outside China question whether rule of law is necessary for a rich, emerging country such as China. The lack of legal cer- tainty affects leadership succession processes as well as governance on a large scale and confidence in business. Demands for rule of law changes by public and legal professionals have been unprecedented. What China can achieve depends on how the legal system develops and whether the concept of the rule of law can be translated into judicial practices. What China can achieve depends largely on what China wants. 201 Achieving Development through Innovative Constitutionalism A China Story Zhenmin Wang and Yuan Tao Constitutions are created to balance political powers, to regulate the behavior of political institutions and individuals, and to protect citizens’ rights. The interplay between constitutionalism and reality constantly changes, with the evolution of a constitution the most obvious proof of that transformation. Traditionally, constitutionalism has been correlated with separation of pow- ers, limited government, and democracy. Today, however, a constitution is no longer seen as a purely political and legal document; it is also viewed as a document incorporating guiding economic principles, and growing attention is being given to the economic functions of a constitution and how consti- tutions might be used to promote economic development. Most transitional and developing nations face the challenge of proper allocation of available economic and financial resources as well as the compatibility of economic de- cisions with the constitutional framework and the limitations created by that framework. The economic function of the constitution can be used to narrow the gap between practical enforcement of the economic, social, and political rights granted by the constitution and the economic policy, budget legislation, and administrative policies conducted by the national government. Constitutions in the 18th and 19th centuries were purely political docu- ments. They had little to do with economy. The first constitution to introduce economic provisions was the 1918 Weimar Constitution of Germany. As con- stitutions have evolved, some are more focused on citizens’ rights vis-à-vis the government and private property ownership, while others provide for both political and economic affairs in a comprehensive fashion. A key challenge for modern constitutionalists, especially in developing countries, is how to use constitutional provisions to facilitate economic advancement and the devel- opment of a market economy. If a constitution can be defined as a framework of fundamental rules and principles according to which a state is governed, the locus of constitutional- ism lies at the intersection of law and politics. Every theory of constitutional- ism must take both law and policy into account and apply them in a way that is open to country-specific variations. The purpose of a constitution should be multifold: the balanced and rational allocation of governmental powers among various branches and levels; the assurance that government behavior is sub- ject to supervision and constraints; the obligation that government agencies or The World Bank Legal Review202 executive officials, whether appointed or elected, be bound by the constitution, abstain from abuse of power and corruption, and be held accountable to the people; and the protection of basic human rights and freedom. Based on this definition of a constitution, economic constitutionalism en- compasses and addresses several issues: first, what economic freedoms and rights can the constitution provide for the people; second, to what extent may the government intervene in economic affairs; and third, where does the boundary lie for government intervention in the economic arena—in other words, how does the government redistribute resources and social wealth among members of the society. The evolution of China’s constitution is an example of the changing and multifaceted nature of economic constitutionalism. The first National People’s Congress (NPC) adopted China’s first constitution in 1954. In 1975, the consti- tution was completely revised to become the second constitution. Three years later, it was rewritten and adopted as the 1978 constitution. In 1980, the Chi- nese authorities established the high-profile Constitution Revising Committee with the mandate to thoroughly review the 1978 constitution and make a new one. After two years’ consultation and deliberation, the new constitution was passed by the fifth NPC in 1982. The 1982 constitution has been amended four times: in 1988, 1993, 1999, and 2004. Most of the amendments are related to economic freedoms, especially the constitutional and legal status of private economy. As such, not only is the 1982 constitution, and its amendments, a document for legal and political affairs, but it also provides a foundation for economic development and economic justice. The 1982 constitution was adopted shortly after Deng Xiaoping took pow- er and initiated China’s “opening and reform” policy. Law played a vital role in Deng’s administration as he sought to provide greater institutional order to support China’s development. The 1982 constitution puts the constitution above all organizations in the country, including the Communist Party of Chi- na (CPC). Post-Deng leaders have modified the constitution through amend- ment, rather than replacement, preserving the continuity of economic reform ideology ushered in by Deng. Amendments have been used to constitutional- ize ideological landmarks of unfolding economic developments. For example, the constitution was revised in 1988 to make reference to a private sector to complement the “socialist public economy.” The 1993 amendments added the phrase “socialism with Chinese characteristics” to the preamble and intro- duced the “socialist market economy,” thus incorporating Deng’s economic theory into the document. A reference to the recently deceased Deng was added to the preamble in 1999. The constitution was amended in 2004 to guar- antee private property rights and provide for compensation for expropriated land, an important signal for both foreign investors and China’s own busi- ness sector. In addition, in keeping with the tradition of each Chinese leader leaving his imprint on the constitution, President Jiang Zemin introduced his theory of the “three represents” into the preamble. This provided ideological coverage for inclusion of the business class (“bourgeoisie”). Achieving Development through Innovative Constitutionalism 203 China has been the fastest-growing major economy in the world for 30 years, with an average annual growth rate above 10 percent. By 2012, as the second-largest economy in the world, China could claim that per capita income had grown at an average annual rate of more than 8 percent over the previous three decades, increasing from 379 yuan, or US$44.6, in 1978 to about US$5,184 (US$8,394 purchasing power parity, or PPP) in 2011, according to the International Monetary Fund (IMF).1 According to the World Bank, China’s economic growth fueled a decline in the poverty rate from 85 percent in 1981 to 16 percent in 2005 (poverty being defined in 2005 as the number of people living on less than US$1.25 per day).2 There are many reasons for such an economic achievement, and the con- stitution and its amendments have played a crucial role in this development. This chapter examines how a developing country such as China made such remarkable progress by enacting a new constitutional system, in particular, a new economic constitutionalism. This chapter shows how China’s economy exemplifies the development of a more traditional constitution into one that reflects many of the advantages of economic constitutionalism. The following pages trace China’s constitutional history to show this development, noting major changes that reflect innovative policies in China’s particular historical context. The Basic Economic System Established by the 1982 Constitution The political revolution that aimed to build China into a socialist country re- sulted in the founding of the People’s Republic of China in 1949. However, the 1954 constitution characterized the country as “neodemocratic” because private ownership and property rights were allowed to exist and were in fact protected. But the 1954 constitution was short-lived—it was cast aside for years, including during the 10-year “Cultural Revolution” (1966–76). Although socialist reform was completed in the late 1950s, the constitution remained unchanged until 1975. Reflecting the ultra-leftist ideology of the Cul- tural Revolution, the 1975 constitution declared that China was a “pure social- ist country.” The constitutional protection of private economy that appeared in the 1954 constitution was abolished. The 1975 constitution incorporates the protection of public ownership, eliminating all elements of private economy. As a result of the paradigm shift that took place after the Cultural Rev- olution, during the 1982 constitution-making process, a main consideration was how to build an economy-friendly constitutional system and establish a rational economic system. In its preamble, the 1982 constitution stipulates “the basic task of the nation in the years to come is to concentrate its effort on [socialist] modernization.” 1 http://en.wikipedia.org/wiki/Economy_of_the_People%27s_Republic_of_China. 2 Shauna Chen & Martin Ravallion, “The Developing World Is Poorer than We Thought, but No Less Successful in the Fight against Poverty (World Bank Aug. 2008). http://en.wikipedia.org/wiki/Economy_of_the_People%27s_Republic_of_China The World Bank Legal Review204 Public Ownership of the Means of Production and Distribution Principles Article 6 of the 1982 constitution stipulates that “the basis of the socialist eco- nomic system of the People’s Republic of China is socialist public ownership of the means of production, namely, ownership by the whole people and col- lective ownership by the working people.” Article 6 also provides for distribution principles: the system of socialist public ownership supersedes the system of exploitation of person by person; it applies the principles of “from each according to his ability” and “to each according to his work.” There are two forms of socialist public ownership mandated in the 1982 constitution. First, ownership by the whole people: Article 7 states that “the state economy is the sector of socialist economy under ownership by the whole people; it is the leading force in the national economy. The state ensures the consolidation and growth of the state economy.” Second, collective ownership by the “working people”: Article 8 provides that rural people’s communes, agricultural producers’ co-operatives, and other forms of cooperative economy such as producers’ supply and marketing, credit and consumers co-operatives, belong to the sector of socialist economy under collective ownership by the work- ing people. Working people who are members of rural economic col- lectives have the right, within the limits prescribed by law, to farm private plots of cropland and hilly land, engage in household side- line production and raise privately owned livestock. The various forms of co-operative economy in cities and towns, such as those in the handicraft, industrial, building, transport, commercial and ser- vice trades, all belong to the sector of socialist economy under collec- tive ownership by the working people. The State protects the lawful rights and interests of the urban and rural economic collectives and encourages, guides and helps the growth of the collective economy. The 1982 constitution allows for the individual economy of urban and ru- ral working people, but only as a complement to the socialist public economy. The official policy toward individual economy is that the state protects the lawful rights and interests of the individual economy. The state guides, helps, and supervises individual economy through administrative control. These provisions stem from the then-prevailing ideology that emphasized “socialist ownership” and tended to marginalize private ownership. Although the 1982 constitution does not permit Chinese citizens to run private companies, it does permit foreign enterprises, other foreign economic organizations, and individual foreigners to invest in China and to enter into various forms of economic cooperation with Chinese enterprises and other eco- nomic organizations in accordance with Chinese law. All foreign enterprises and foreign economic organizations in China, as well as joint ventures with Chinese and foreign investment located in China, must abide by the laws of China. Their lawful rights and interests are protected by the law (Article 18). Achieving Development through Innovative Constitutionalism 205 Property Rights According to Article 9 of the 1982 constitution, mineral resources, waters, forests, mountains, grassland, unreclaimed land, beaches, and other natural resources are owned by the state, that is, by the whole people, with the excep- tion of the forests, mountains, grassland, unreclaimed land, and beaches that are owned by collectives in accordance with the law. The state ensures the rational use of natural resources and protects rare animals and plants. The ap- propriation or damage of natural resources by any organization or individual by whatever means is prohibited. This provision is important for the state to maintain economic stability. Urban land is owned by the state. Land in rural and suburban areas is owned by collectives, except for those portions that belong to the state in ac- cordance with the law. House sites and private plots of cropland and hilly land are owned by collectives. The state may in the public interest take land over for its use in accordance with the law. No organization or individual may appropriate, buy, sell, or lease land or unlawfully transfer land in other ways. All organizations and individuals who use land must make rational use of the land (Article 10). The 1982 constitution emphasizes that socialist public property is sacred and inviolable (Article 12). The state protects socialist public property. Ap- propriation or damage of state or collective property by any organization or individual by whatever means is strictly prohibited. As for private ownership, Article 13 stipulates that “the state protects the right of citizens to own lawfully earned income, savings, houses, and other lawful property. The state protects by law the right of citizens to inherit pri- vate property.” Therefore, the 1982 constitution seems to suggest that citizens cannot have large-scale property such as factories or companies. Management of Economic Affairs According to the 1982 constitution, China practices economic planning on the basis of socialist public ownership, with a view to a proportionate and coor- dinated growth of the national economy by balancing economic planning and market regulation. Disruption of the state economic plan by any organization or individual is legally prohibited. Constitutions in many countries do not stipulate how to manage the econ- omy. Yet, China’s constitution has very detailed provisions on economic af- fairs. For example, Article 14 states that the state continuously raises labor productivity, improves economic re- sults and develops the productive forces by enhancing the enthusi- asm of the working people, raising the level of their technical skill, disseminating advanced science and technology, improving the sys- tems of economic administration and enterprise operation and man- agement, instituting the socialist system of responsibility in various forms, and improving organization of work. The state practices strict The World Bank Legal Review206 economy and combats waste. The state properly apportions accu- mulation and consumption, pays attention to the interests of the col- lective and the individual as well as of the state, and, on the basis of expanded production, gradually improves the material and cultural life of the people. The constitution also provides that state-owned enterprises have decision- making power in operation and management within the limits prescribed by law, on the condition that they respect the centralized leadership of the state and fulfill all their obligations under the state plan. State-owned enterprises practice democratic management through congresses of workers and staff. Collective economic organizations also enjoy decision-making power in conducting independent economic activities, on the condition that they accept the guidance of the state plan and abide by the relevant laws. Collective eco- nomic organizations practice democratic management in accordance with the law, with the entire body of their members electing or removing management and deciding on major issues concerning the operations and management of their community. Economic Freedoms and Rights The 1982 constitution provides for a wide range of freedoms and rights related to economic affairs. All citizens are equal before the law. Every citizen enjoys these rights and at the same time must perform the duties prescribed by the constitution and the law (Article 33). The 1982 constitution also recognizes that the freedom of individual citi- zens is inviolable. No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of a citizen’s freedom by detention or other means is prohibited; unlawful search of the person of citizens is also prohibited (Article 37). The in- dividual dignity of citizens is inviolable. Insult, libel, false charge, or frame-up directed against citizens by any means is prohibited (Article 38). The home of a citizen is inviolable. Unlawful search of, or intrusion into, a citizen’s home is prohibited (Article 39). The freedom and privacy of correspondence of citizens are protected by law (Article 40). In addition to the above political rights, citizens have the right as well as the duty to work. Using various channels, the state creates conditions for em- ployment, strengthens labor protection, improves working conditions, and, on the basis of expanded production, increases remuneration for work and social benefits. Work is a duty of every able-bodied citizen. The state provides necessary vocational training to citizens before they are employed (Article 42). Working people have the right to rest (Article 43). Social security is provided for under the 1982 constitution. The state pre- scribes the system of retirement for workers and staff in enterprises and un- dertakings and for functionaries of organs of the state. The livelihood of re- Achieving Development through Innovative Constitutionalism 207 tired personnel is ensured by the state and society (Article 44). Citizens have the right to material assistance from the state and society when they are old, ill, or disabled (Article 45). Citizens have the duty as well as the right to re- ceive education (Article 46). Citizens have the freedom to engage in scientific research, literary and artistic creation, and other cultural pursuits. The state encourages and assists creative endeavors conducive to the engagement in education, science, tech- nology, literature, art, and other cultural activities (Article 47). The exercise by citizens of their freedoms and rights may not infringe upon the interests of the state, society, or the collective, or upon the lawful freedoms and rights of other citizens (Article 51). Economic Reforms and Constitutional Amendments in 1988, 1993, and 1999 When the constitution was enacted in 1982, China was embarking on large- scale and wide-ranging economic reform. During the pilot phase of the re- form, various restrictions were placed on economic autonomy. For example, the original 1982 constitution did not permit citizens to own and run private companies, although it did permit foreign citizens to do so in China. A sig- nificant portion of China’s economy was still based on the state plan. The re- strictions imposed by the constitution became obstacles to economic reform. Since 1988, China has amended the constitution four times, all in the interest of further liberalizing its economy and promoting greater economic freedom. 1988 Constitutional Amendments On April 12, 1988, the seventh NPC made two constitutional amendments. One concerns private economy. It reads: The state permits the private sector of the economy to exist and de- velop within the limits prescribed by law. The private sector of the economy is a complement to the socialist public economy. The state protects the lawful rights and interests of the private sector of the economy, and exercises guidance, supervision and control over the private sector of the economy. Thus, owning and operating private businesses is legitimized, whereas some citizens were penalized before 1988 simply for owning a factory that employed seven or more employees. If a private business owner employed six or fewer helpers under the original 1982 constitution, it could fall under the “individual economy,” or sole proprietorship, which was protected by Ar- ticle 11. Therefore, this amendment, which decriminalized private economy, opened the door for the development of a market economy. The other amendment also relates to economic development. Article 10 was amended from “no organization or individual may appropriate, buy, sell, or lease land or otherwise engage in the transfer of land by unlawful means” The World Bank Legal Review208 to “no organization or individual may appropriate, buy, sell, or otherwise en- gage in the transfer of land by unlawful means. The right to the use of land may be transferred according to law.” This amendment laid out a constitu- tional foundation for the development of the real estate industry. 1993 Constitutional Amendments On March 29, 1993, the eighth NPC made more amendments to the 1982 con- stitution. One amendment states that “China is at the primary stage of socialism” and introduces “the theory of building socialism with Chinese characteristics.” This amendment provides a rationale for promoting a private and market- oriented economy. A more fundamental change was introduced with another amendment. Article 15 was amended from The state practices economic planning on the basis of socialist public ownership. It ensures the proportionate and coordinated growth of the national economy through overall balancing by economic plan- ning and the supplementary role of regulation by the market. Dis- turbance of the orderly functioning of the social economy or disrup- tion of the State economic plan by any organization or individual is prohibited to the state has put into practice a socialist market economy. The state strengthens formulating economic laws, improves macro adjust- ment and control and forbids according to law any units or indi- viduals from interfering with the social economic order. According to this amendment, the economy in China is no longer a planned economy but a market-oriented one, even though many Western countries still do not recognize the market economy status of China. 1999 Constitutional Amendments On March 15, 1999, China again proposed a sweeping set of constitutional amendments. Seven amendments were passed altogether. Important changes to the economic system include the following. • Deng Xiaoping theory was incorporated into the constitution as state guidance, in addition to Marxism-Leninism and Mao Zedong thought. • It was acknowledged that “China will stay in the primary stage of social- ism for a long period of time.” • Rule of law was officially introduced for the first time. Article 5 was added: “The People’s Republic of China practices ruling the country in accor- dance with the law and building a socialist country under rule of law.” Achieving Development through Innovative Constitutionalism 209 • Article 6, which covers the economic system, was amended from The basis of the socialist economic system of the People’s Republic of China is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people. . . . The system of socialist public ownership supersedes the system of exploitation of man by man; it applies the principle of “from each according to his ability, to each according to his work.” to The basis of the socialist economic system of the People’s Republic of China is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people. The system of socialist public ownership su- persedes the system of exploitation of man by man; it applies the principle of “from each according to his ability, to each according to his work.” . . . During the primary stage of socialism, the state adheres to the basic economic system with the public ownership remaining dominant and diverse sectors of the economy developing side by side, and to the distribution system with the distribution according to work remaining dominant and the coexistence of a variety of modes of distribution. • Article 11, on private economy, was amended from The individual economy of urban and rural working people, oper- ating within the limits prescribed by law, is a complement to the socialist public economy. The state protects the lawful rights and interests of the individual economy. . . . The state guides, helps and supervises the individual economy by exercising administrative control. . . . The state permits the private economy to exist and de- velop within the limits prescribed by law. The private economy is a complement to the socialist public economy. The state protects the lawful rights and interests of the private economy, and guides, su- pervises and administers the private economy. to Individual, private, and other nonpublic economies that exist within the limits prescribed by law are major components of the socialist market economy. . . . The state protects the lawful rights and inter- ests of individual and private economies, and guides, supervises, and administers individual and private economies. Thus, the status of the nonpublic economy was endorsed by official con- stitutional amendments. The World Bank Legal Review210 2004 Constitutional Amendments The 2004 constitutional amendments are significant. From “Socialism with Chinese Characteristics” to “Chinese-Style Socialism” In the preamble, “along the road of building socialism with Chinese character- istics” was revised to “along the road of Chinese-style socialism.” This seem- ingly editorial change means that the socialism in China is “made in China,” not imported from another country or copied from textbooks. This change has been widely interpreted to mean that the development model in China is unique in nature, neither capitalist nor conventionally socialist. Both capitalist and traditional socialist models have their merits and demerits. In this amend- ment, China recognizes the value of both systems. How China develops its own model will be based on Chinese circumstances and the current world sit- uation, rather than on transplanting economic systems from other countries. The Three Represents In the preamble, “under the guidance of Marxism-Leninism, Mao Zedong thought, and Deng Xiaoping theory” was revised to “under the guidance of Marxism-Leninism, Mao Zedong thought, Deng Xiaoping theory, and the im- portant thought of ‘three represents.’ ” This change is more than merely political window dressing. Since 1988, when a constitutional amendment first green-lighted private economy, the private sector has undergone substantial development. By 2004, the private sector dominated the local economy in many coastal provinces. Historically, however, according to the constitution, China was a country for workers and farmers, not the bourgeoisie. The Chinese government constitutionally did not represent nonpublic sectors. The “three represents” means that the party and the state (government) must always represent the development trend of China’s advanced productive forces, the orientation of China’s advanced culture, and the fundamental interests of the majority of the Chinese people. Thus, the Chinese Communist Party and the government also represent the private sector and the business class. According to this amendment, China is not only a country for workers and farmers but also a country for the emerging private sector. This ideology will guide the party and the government for years. State Compensation for Land Expropriated or Requisitioned Article 10 was amended from “The state may, in the public interest, requisition land for its use in accordance with the law” to “The state may, in the public interest and in accordance with the provisions of law, expropriate or requisi- tion land for its use and shall make compensation for the land expropriated or requisitioned.” Achieving Development through Innovative Constitutionalism 211 Protection of Lawful Rights and Interests of the Nonpublic Sectors Article 11 was amended from “the state protects the lawful rights and inter- ests of the individual and private sectors of the economy, and exercises guid- ance, supervision, and control over individual and the private sectors of the economy” to The state protects the lawful rights and interests of the nonpublic sectors of the economy such as the individual and private sectors of the economy. The state encourages, supports, and guides the devel- opment of the nonpublic sectors of the economy and, in accordance with law, exercises supervision and control over the nonpublic sec- tors of the economy. Citizens’ Lawful Private Property Is Inviolable Article 13 was amended from “The state protects the right of citizens to own lawfully earned income, savings, houses, and other lawful property” and “The state protects according to law the right of citizens to inherit private property” to “Citizens’ lawful private property is inviolable”; “The state, in accordance with law, protects the rights of citizens to private property and to its inheritance”; and “The state may, in the public interest and in accordance with law, expropriate or requisition private property for its use and shall make compensation for the private property expropriated or requisitioned.” For the first time, a socialist constitution explicitly provides for the protec- tion of private property. Social Security System In 2004, China added to Article 14: “The state establishes a sound social secu- rity system compatible with the level of economic development.” Human Rights China added Article 33: “The state respects and preserves human rights.” This is the first time that the Chinese constitution has formally recognized the val- ue of human rights. Conclusion The multifarious nature of constitutionalism has inspired different under- standings of the meaning of “constitutionalism.” Adding to this confusion is the inevitable disparity between what is contained in the text of a constitu- tion and how those provisions are implemented. By all accounts, however, progressive economic constitutionalism has contributed to China’s change in one generation from a poverty-stricken country to one of the world’s largest economies. While China has been learning from the rest of the world, it has established its own way of development based on its unique circumstances. The World Bank Legal Review212 China’s experience shows that constitutional changes and economic re- forms are intertwined and that they should be coordinated in a gradual and pragmatic manner. It took many years for China to recognize and accept con- cepts such as private economy, market economy, private property rights, hu- man rights, and rule of law. There is no statically ideal constitution in any dynamically changing society; constitutionalism does not mean that there must be a perfect constitution before its practice. Perhaps there is no perfect constitution—constitutional development is a never-ending process. Ultimately, a constitution resides in the particular historical and circum- stantial settings of its country. One country can draw experiences from other countries, but it is impossible to transplant a constitutional system completely. To achieve national modernization, democracy alone is not adequate; it must be governed by constitutionalism and rule of law. The presence or ab- sence of constitutionalism and rule of law is crucial to the success or failure of democracy. The development of democracy and constitutionalism can be cate- gorized into two models: the success of the British-American model lies in the establishment of constitutionalism and rule of law in the first place, followed by democracy under a ready and stable constitutional and legal framework; while the French model aimed to introduce full democracy first and establish constitutionalism and rule of law later. Either way, to emphasize constitution- alism does not mean to ignore the development of democracy, or vice versa. A synergetic coordination of constitutionalism and rule of law is the ultimate goal for China. The past and current financial crises have proved that a free market economy is not omnipotent. Government involvement and redistribution of resources and social wealth are not always counterproductive. Early consti- tutions in Western countries established a completely free market economy system, which was suspicious and hostile toward government intervention. As the recent crisis has shown, however, a modern constitution should give the government reasonable powers to regulate the market economy and al- locate social resources. This has nothing to do with ideology—it is a matter of distributive justice and social administration. Daniel Webster wrote, “One country, one constitution, one destiny.”3 To a great extent, the nature of a country’s constitution determines the destiny of the country. From the Chinese legal perspective, a constitution not only reflects the country’s economic base but also contributes to the economic base. As such, the constitution in China is not only the supreme law of the state but also an active social, economic, and political program for social transforma- tion and development. 3 From a speech of March 15, 1837; reported in Edward Everett ed., The Works of Daniel Webster 349 (Little, Brown 1853). 213 The Role of Laws and Institutions in Expanding Women’s Voice, Agency, and Empowerment Jeni Klugman and Sarah Twigg “Voice, agency, and empowerment” refers to the ability of individuals and groups to make effective choices. Across all countries, the ability of women and men to exercise voice and agency differs—and women are usually at a disadvantage. The World Development Report 2012: Gender Equality and Devel- opment (WDR 2012)1 highlights the vital importance of women’s voice and agency in both the household and society in general. This report—a landmark for the World Bank because it recognizes both the intrinsic and instrumental values of women’s voice, agency, and empowerment—identifies shrinking gender differences in voice and agency as a policy priority for future action. Voice, agency, and empowerment have intrinsic value for women’s in- dividual well-being and quality of life; they are valuable ends in their own right. This concept is in line with Amartya Sen’s view of development as the process of enlarging a person’s ‘‘functionings and capabilities to function, the range of things that a person could do and be in her life.”2 But the WDR 2012 also shows that these goals are instrumental in achieving sustainable social and economic development. When women and men have equal voice and participation in public life, significant societal benefits result. For example, public health spending in the United States increased dramatically in the early 1920s after women won the right to vote. Women’s participation in politics led to an intensive scaling up of hygiene campaigns and a sharp decline in child mortality. It is estimated that roughly 20,000 child deaths were averted every year because women won the right to vote, which explains about 10 percent of the reduction in child mortality in the United States between 1900 and 1930.3 What roles do laws play in fostering women’s voice, agency, and empower- ment? Laws formalize individual and collective rights and provide the frame- work within which people are empowered to exercise their voice and agency. Laws and their effective implementation and enforcement can be especially The views expressed in this article are solely those of the authors and do not reflect those of the World Bank or its Executive Directors. The authors are grateful to Humay Gulyieva for assistance and Tazeen Hasan for comments. 1 World Bank, World Development Report 2012: Gender Equality and Development (World Bank 2012) (hereinafter, WDR 2012). 2 A. Sen, Development as Capability Expansion, 17 J. of Dev. Planning 41–58 (1989). 3 Grant Miller, Women’s Suffrage, Political Responsiveness, and Child Survival in American History (Stanford Medical School & NBER 2007). The World Bank Legal Review214 important for disadvantaged individuals and groups as they try to overcome underlying discrimination and structural inequalities—although laws some- times serve to further entrench disadvantage and existing inequalities. The interaction between laws on the one hand and voice and agency on the other is mutually reinforcing. Changes in agency, patriarchal attitudes, and social norms can be important triggers for changes in laws, as evidenced by the significant role played by women’s collective movements since 1975 in promoting more egalitarian family laws in 70 countries around the world.4 At the same time, the very act of bestowing the stamp of legality, or illegality, has been a catalyst for increasing agency and transforming attitudes when intro- duced as part of a multisectoral package. As Martin Luther King declared, “It may be true that the law cannot make a man love me. . . . But if it keeps him from lynching me, I think that’s pretty important also.”5 There has been some progress in recognizing women’s equality and wom- en’s rights at the international level. The Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), agreed upon in Mexico in 1975, has been a pioneering instrument of human rights for women. It addressed for the first time discrimination in the private sphere, including the extension of protection to women against family violence, and sought to tackle substantive inequalities. To this end, CEDAW recognized the centrality of eliminating all forms of discrimination in order to achieve equality for women; it articulated the need to eliminate prejudices, customary practices, social norms, and ste- reotyped roles for men and women; and it focused on achieving equality of outcomes, that is, equality in real terms.6 There are many examples of CEDAW helping to win tangible gains for girls and women, as in India, where the Supreme Court in 1997 relied on CEDAW to draw up a set of guidelines and norms for the processing of sexual harassment complaints.7 This chapter, building on the evidence and insights presented in the WDR 2012, reviews the potential power of laws to expand women’s voice and agency. The analysis follows the framework set out in the WDR 2012, which finds that limited progress in women’s agency is explained by mutually reinforcing con- straints in markets, formal institutions, and informal institutions (see figure 1). This points to the need to systematically analyze the interplay of these sectors. The focus of this chapter is confined to the role of formal and informal laws. 4 Mala Htun and S. Laurel Weldon, Communism, Colonialism and Clerical Power: Historical Lega- cies and Feminist Activism in the Struggle over Family Law (Harvard U. 2011). 5 Dr. Martin Luther King, Jr. Towards Freedom, speech given at Dartmouth College (May 23, 1962). 6 For broader discussion of the significance of CEDAW for women’s rights and gender equal- ity see Richard Jolly, Louis Emmerij, & Thomas G. Weiss, UN Ideas That Changed the World (United Nations 2009). 7 Vishaka and others v. State of Rajasthan and others (AIR 1997 SUPREME COURT 3011) J.S. Verma C.J.I., Mrs. Sujata V. Manohar, & B.N. Kirpal, JJ. Expanding Women’s Voice, Agency, and Empowerment 215 Figure 1. Limited Progress in Women’s Agency Is Explained by Mutually Reinforcing Constraints in Markets, Formal Institutions, and Informal Institutions Source: WDR 2012, 153. The chapter begins by outlining the pathways through which laws affect women’s empowerment and their ability to exercise voice and agency, fol- lowed by a review of the role of plural legal systems and customary and reli- gious laws. It then investigates the reality of laws in practice, which includes looking at issues such as access to justice and enforcement of laws, and closes with a discussion of the role of social norms in shaping or constraining the application of laws. Pathways through Which Laws Enhance Women’s Ability to Exercise Voice and Agency Laws formalize individual and collective rights and provide the framework within which people exercise agency. Progress has been made globally in re- forming legislative and constitutional frameworks to advance gender equal- ity and women’s rights. A nondiscrimination clause covering gender now appears in the constitutions of 97 countries, and 132 countries have constitu- tional guarantees of equality before the law. Yet many countries still have legal provisions that overtly discriminate against women in both statutory and customary law, sometimes in the consti- tution and sometimes despite what the constitution requires. Indeed, in 47 of the countries with constitutional equality provisions, legislation on access to institutions means women are less able than men to interact with public au- thorities and the private sector. This includes restrictions on a woman’s ability to get a job, sign a contract, register a business, open a bank account, be the The World Bank Legal Review216 head of the household, or choose where to live.8 According to Women, Busi- ness, and the Law, of the 53 countries studied that formally recognize custom- ary or religious law as valid sources of law under the constitution, more than half exempt such laws from constitutional provisions on nondiscrimination or equality.9 This discrepancy reveals a disconnect between constitutionally pro- tected rights and statutory and customary law, which affects what plays out in practice. In the Democratic Republic of Congo, for example, the constitution expressly prohibits discrimination on the basis of gender and provides for equality before the law; yet married women cannot get a job, sign a contract, register a business, or be the head of a household in the same way as men. The constitution does not invalidate customary law that is discriminatory or in conflict with constitutional provisions of equality. Family laws, laws related to gender-based violence, and laws related to economic opportunities are among the domains of law most likely to limit women’s empowerment; these are discussed briefly below. In some countries, women’s citizenship rights are limited—a woman cannot confer citizenship on a foreign spouse in the same way as a man in 35 countries, and in 20 of those, women cannot confer citizenship on their children.10 Restrictions can limit women’s mobility and access to work. Countries such as the Islamic Republic of Iran, Saudi Arabia, Sudan, and the Republic of Yemen, where married women are required to have male permission to travel or to work outside the home, show how the law itself can restrict wom- en’s agency. One result of this restriction is very low rates of female labor force participation—ranging from as low as 20 percent (Yemen) to 32 percent (Iran)—compared with male labor force participation of 73 percent (Iran) to 80 percent (Saudi Arabia). Legal disparities can reduce women’s ability to participate on an equal footing with men in the economy. Women, Business, and the Law finds that greater lack of legal gender parity in business and institutional laws is associ- ated with lower labor force participation by women (both in absolute terms and relative to men) and lower levels of women’s entrepreneurship. This is supported by a study in Africa that found that gender gaps in legal capacity and property rights limited women’s roles as entrepreneurs. The gap between the share of women and men who are employers is 30 percent higher in coun- tries where there are larger gender disparities in economic rights.11 8 World Bank, Women, Business, and the Law 2012: Removing Barriers to Economic Inclusion (International Bank for Reconstruction and Development/The World Bank 2012) (herein- after, WBL). 9 Twenty-seven countries do not consider customary or personal law as invalid if the law violates constitutional provisions on nondiscrimination or equality; id. 10 WBL, supra note 8. 11 M. Hallward-Driemeier & T. Hasan, Empowering Women: Legal Rights and Opportunities in Africa, World Bank Africa Development Forum Series (2012). Expanding Women’s Voice, Agency, and Empowerment 217 Women’s collective voice in society is a critical component of the full ex- ercise of empowerment and agency. There are many examples of women’s groups at the local level and movements at the national and global level en- abling voice and affecting change. Perhaps one of the better-known examples is the Self-Employed Women’s Association in India (SEWA), which represents the interests of a large number of informal sector workers and entrepreneurs. SEWA provides information, support, and training services to its members; offers a platform for voicing concerns; and has created space for public action through which women workers have actively challenged their employers and the state.12 A major campaign in 2003 in support of better wages for incense stick rollers resulted in around half of all workers (10,000 women) receiving an increase in pay; another 2,000 were able to restart working after having re- ceived training in new techniques.13 In situations like this, the legal framework is key—in Ethiopia, where the framework for civil society has been tightened since 2009, civil society organizations are unable to receive foreign funding if they engage in any work pertaining to human rights. The Ethiopian Women Lawyers Association (EWLA) is one civil society organization whose work has been affected. EWLA provided free legal aid to more than 17,000 women in 2008 and supported other activities that tens of thousands of participants benefited from. As a result of the legislation passed in 2009, EWLA cut back services, which now are restricted to limited legal aid for women provided by volunteers.14 For their voices to be transformative, women need to be present when and where decisions are made—in parliament, legal institutions, formal pro- fessional institutions, and local and state governments. Yet, women make up only 19 percent of parliamentarians worldwide, and in some regions their presence is even lower. In the Middle East and North Africa, women are only 1 in 10 parliamentarians, and in Papua New Guinea there is only 1 female parliamentarian.15 Quotas, while sometimes controversial, can be an effective means of im- proving women’s representation. More than half of the countries in the world have implemented some type of political quota, in the form of voluntary quo- tas by parties on electoral lists, reservation of a certain share of candidate po- sitions for women, or reservation of a share of legislative slots. The use of such quotas has led to a dramatic increase in female leaders across the globe. Voluntary party quotas, for example, currently in place in 51 countries, can both reflect and fuel changes in public attitudes and signify a commitment 12 WDR 2012, supra note 1. 13 J. Blaxall, India’s Self-Employed Women’s Association (SEWA). Empowerment through Mobiliza- tion of Poor Women on a Large Scale: A Case Study from Reducing Poverty, Sustaining Growth; What Works, What Doesn’t, and Why: A Global Exchange for Scaling Up Success (World Bank 2012). 14 Amnesty International (Mar. 11, 2012), available at http://www.amnestyusa.org/news /news-item/ethiopia-human-rights-work-crippled-by-restrictive-law. 15 Inter Parliamentary Union, available at http://www.ipu.org/wmn-e/world.htm. http://www.amnestyusa.org/news/news-item/ethiopia-human-rights-work-crippled-by-restrictive-law http://www.ipu.org/wmn-e/world.htm http://www.amnestyusa.org/news/news-item/ethiopia-human-rights-work-crippled-by-restrictive-law The World Bank Legal Review218 to gender equality, which also contributes to higher levels of female partici- pation. Mandatory quotas in the form of reserved legislative seats have had positive results for women’s representation and participation in South Asia and parts of Africa. In Rwanda, where the constitution stipulates a 30 percent quota for women members of parliament, this number has been far exceeded: women now make up 56 percent of the lower house and 39 percent of the up- per house.16 This change has translated into legislative gains for women in the form of revised family and inheritance laws, for example, and women report increased respect from family and community members, enhanced capacity to speak and be heard in public forums, greater autonomy in decision making in the family, and increased access to education.17 The same is true in the private sector. Women have low representation on the boards of large firms (around 12 percent in Europe, 10 percent in the Americas, 7 percent in Asia and the Pacific, and 3 percent in the Middle East and North Africa). Quotas can be one way to tackle that representation. Nor- way was the first country to introduce legislated corporate quotas in 2003, prior to which female representation had increased slowly. Female board rep- resentation jumped rapidly from around 16 percent in 2004 to the mandated 40 percent in 2008. In Australia, the prospect of reform had a positive effect on women’s participation. In 2011, the Australian Stock Exchange (ASX) Corpo- rate Governance Council implemented a diversity policy requiring all publicly listed companies in Australia to set gender-diversity targets. Anticipation of the reforms had a positive impact on women in ASX leadership—which saw a 600 percent increase in new women board appointees between 2009 and 2010 (increasing from 5 percent to 27 percent).18 Yet there have been some unexpected negative consequences of quotas. Reports from Rwanda suggest there has been some withdrawal of men from politics, increased marital discord, and a perception that marriage as an in- stitution has been disrupted by the upheaval of gender roles.19 In Pakistan, quotas that violated strong social norms have been associated with increased discrimination of women.20 We now turn to look more closely at three key domains of law that af- fect women’s voice and agency: family law, which is an underlying building block; laws regulating domestic and gender-based violence; and laws regulat- ing women’s economic rights. 16 International Parliamentary Union, available at http://www.ipu.org/wmn-e/classif.htm. 17 J. Burnet, Women Have Found Respect: Gender Quotas, Symbolic Representation and Female Em- powerment in Rwanda, 7(3) Politics and Gender 303–34 (2011). 18 Australian Human Rights Commission, available at http://www.hreoc.gov.au/sex_dis crimination/programs/women_leadership.html. 19 Burnet, supra note 17. 20 Mona Lina Krook, The Diffusion of Electoral Reform: Gender Quotas in Global Perspective, paper presented at the European Consortium for Political Research, Lisbon (2009). http://www.hreoc.gov.au/sex_discrimination/programs/women_leadership.html http://www.ipu.org/wmn-e/classif.htm http://www.hreoc.gov.au/sex_discrimination/programs/women_leadership.html Expanding Women’s Voice, Agency, and Empowerment 219 Family Law Laws that regulate relations within the household play a significant role in fos- tering or restricting women’s empowerment and agency. Legislation directed at domestic relations between men and women can lead the way in chang- ing social attitudes. But change on this front has been slow. According to the WDR 2012, progress in law reform has been the slowest in areas that regulate household relations (family laws). Major inequalities still exist in inheritance rights; 26 countries have statutory inheritance laws that differentiate between women and men.21 These inequalities have serious negative consequences for women’s empowerment because inheritance is often a key way to accumulate assets. They can also have serious consequences in terms of impoverishment of widows.22 Land laws and laws around land titling are important for access to assets, especially for female farmers and entrepreneurs. Joint ownership in marriage, for example, increases women’s ability to use land in accessing economic op- portunities, while mandatory joint land titling has the added benefit of pro- tecting a wife’s rights to land in the event of her husband’s death. Evaluations are under way to help document how much difference these policies make in practice. In many countries, women and girls still have fewer inheritance rights than men and boys. All Organization for Economic Cooperation and Devel- opment (OECD) countries, the former Soviet Union, and Latin America re- formed their inheritance laws more than 50 years ago to reflect more equal distribution, while in other regions the picture is mixed. All 14 countries from the Middle East and North Africa included in Women, Business, and the Law have differential inheritance rights for women as compared to men, as well as 7 in Sub-Saharan Africa, 3 in South Asia, and 2 in East Asia and the Pacific. In majority-Muslim countries, important doctrinal differences affect the extent to which females and males inherit equally. In Turkey, for example, inheritance rights for girls and boys have long been equal in law and in practice, while in Bangladesh, the law provides for unequal inheritance rights, albeit with the option for families to agree on more equal distribution. Law reform to improve women’s inheritance rights could provide an ef- fective means to reduce gender discrimination and improve a wide range of socioeconomic outcomes for women. There are some solid examples of re- form. In Rwanda, following reforms to inheritance laws in 1999 that provided for women’s equal inheritance rights with men, land tenure reform was passed in 2004 to ensure that Rwandan men and women have secure title for 21 Countries included in Women, Business, and the Law with gender-unequal inheritance laws are Bangladesh, Burundi, the Arab Republic of Egypt, Guinea, Indonesia, the Islamic Repub- lic of Iran, Kuwait, Lebanon, Malaysia, Mali, Mauritania, Morocco, Nepal, Oman, Pakistan, Saudi Arabia, Senegal, Sudan, the Syrian Arab Republic, Tanzania, Tunisia, the United Arab Emirates, West Bank and Gaza, and the Republic of Yemen. See WBL, supra note 8. 22 See D. van de Walle, Welfare Effects of Widowhood in a Poor Country (World Bank 2011). The World Bank Legal Review220 their land. The law provides that new land titles for couples include the names of both the husband and the wife and that girls are able to inherit land from their parents in the same way as boys.23 In India, law reforms at the state level that eliminated gender discrimination in inheritance rights resulted in delays in the age of marriage for girls and improvements in girls’ education—girls’ mean years of schooling increased by between 11 and 25 percent following the reforms in 1994.24 UN Women’s 2011–2012 Progress of the World’s Women Report notes that, his- torically, legal jurisdiction was divided between public and private matters, leaving the private sphere of the family and intimate relationships outside formal justice systems. The seeming resistance by governments to step into the private sphere to regulate personal relations is reflected in the reservations demonstrated by many countries in signing on to CEDAW. Out of the 187 coun- tries that have ratified CEDAW, 29 have registered reservations to Article 16, which calls for the elimination of all forms of discrimination in all matters relating to family and marriage relations. In many cases, reservations exist because family laws are subject to discriminatory plural legal provisions—an issue discussed in greater detail below. In a number of countries, the act of marriage weakens a woman’s legal and property rights—married women cannot legally choose where to live in 23 countries, married women do not have the same legal ownership rights to movable and immovable property as men (or unmarried women) in 7 coun- tries, and married women cannot apply for a passport in the same way as men (or unmarried women) in 20 countries.25 Marital property regimes that allow a woman to leave a marriage with a significant or equal share of household assets can increase her bargaining power, even if she never exercises that right.26 Conversely, laws restricting a woman’s options for exiting a marriage, such as those that leave her finan- cially insecure in cases of divorce, can limit her agency and bargaining power within the family. Changing these laws can have a dramatic impact, as seen in the United States: domestic violence fell about 30 percent between 1970 and 1990 after equitable divorce laws were introduced.27 Laws that constrain a woman’s mobility limit options for extended social and support networks and restrict her ability to leave in the case of disagreement, violence, or abuse. In 20 countries covered by Women, Business, and the Law, married women cannot apply for a passport in the same way as a man; and in 4 countries, a married 23 OECD, Women’s Economic Empowerment Issues (DAC Network on Gender Equality 2011). 24 Klaus Deininger, Aparajita Goyal, & Hari Naharajan, Inheritance Law Reform and Women’s Access to Capital: Evidence from India’s Hindu Succession Act, Policy Research Working Paper No. 5338 (World Bank 2010). 25 WBL, supra note 8. 26 WDR 2012, supra note 1. 27 Betsey Stevenson & Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Laws and Family Distress, 121 Quarterly Journal of Economics 267–88 (Feb. 2006). Expanding Women’s Voice, Agency, and Empowerment 221 woman legally cannot travel outside her home or outside the country in the same way as a man. Yet, these numbers capture only formal statutory restric- tions; the numbers are much larger when one considers customary laws. Laws that set a minimum age for marriage are important. Yet in 50 countries, the minimum legal age of marriage is lower for females than for males28—as low as 14 years in Mexico, Mozambique, and Venezuela.29 Early marriage exposes girls to early pregnancy and childbirth, increases their risk of contracting HIV/AIDS, and can limit opportunities for education.30 For ex- ample, only 2 percent of married girls between the ages of 15 and 19 in Nigeria attend school, compared with 69 percent of their unmarried female peers.31 Figure 2. Discrimination in Social Institutions Impedes Women’s Education and Literacy Source: OECD SIGI, 2009. The OECD’s Social Institutions and Gender Index (SIGI) captures criti- cal societal norms and institutions that affect how women fare—using family code, physical integrity, son preference, civil liberties, and ownership rights— and is applied to 102 developing countries. Figure 2 shows that countries with high levels of discrimination in social institutions have a lower ratio of 28 UN Statistics Division (2010), “UNdata,” http://data.un.org, as cited in UN Women (2011– 2012). 29 http://data.un.org/Data.aspx?d=GenderStat&f=inID:19 (accessed Apr. 30, 2012). 30 S. Clark, Protecting Young Women from HIV/AIDS: The Case against Child and Adolescent Mar- riage (International Family Planning Perspectives Jun. 2006). 31 Gordon and Sarah Brown Foundation, Out of Wedlock into School: A Review by Gordon Brown (Office of Gordon and Sarah Brown 2012). http://data.un.org http://data.un.org/Data.aspx?d=GenderStat&f=inID:19 The World Bank Legal Review222 female to male literacy rates; that is, women are less literate compared to men in countries with high levels of social institutional discrimination, while those countries where discrimination is lower are closer to parity in education.32 The causality can run in both directions. Evidence from Turkey shows that extending compulsory education age by three years reduced the proportion of 16-year-old girls who were married by 44 percent, and those who had given birth by age 17 by 36 percent.33 Yet, even when countries reform their laws toward more equal treatment of men and women, differences can persist. The amendment of inheritance law reform in India resulted in a range of benefits for girls, as noted above, but it did not fully eliminate the underlying inequality in girls’ access to inherited land.34 This discrepancy may be due in part to a lack of dissemination of infor- mation on the changed legal provisions. Laws are also sometimes ignored or weakly enforced, or they may be circumvented. Laws Regulating Domestic and Gender-Based Violence Gender-based violence both reflects and reinforces inequities between men and women and damages the health, dignity, security, and autonomy of its vic- tims. It is inextricably linked to gender inequality and perpetuates male power and control, in particular when it takes place within the home. Paragraph 12 of the Beijing Declaration and Platform for Action codifies this message, stating: “Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms.” Violence against women, much of which occurs in the private domain, has not been widely legislated against until recently. But significant progress has been made—as of April 2011, 125 countries had passed legislation on domestic violence, and almost two-thirds of countries, in efforts to make workplaces and public spaces safer for women, had passed laws on sexual harassment.35 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa reflects progress in this area. The protocol states that “parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recog- nized international standards.”36 32 The SIGI is calculated based on the following indicators: early marriage, polygamy, parental authority, inheritance, female genital mutilation, violence against women, freedom of move- ment, freedom of dress, access to land, access to credit, and access to property other than land. 33 Murat G. Kirdar, Meltem Dayıoğlu Tayfur, & İsmet Koç, The Effect of Compulsory Schooling Laws on Teenage Marriage and Births in Turkey, Institute for the Study of Labor Discussion Paper No. 5887 ( July 2011). 34 Deininger, Goyal, & Naharajan, supra note 24. 35 UN Women (2011–2012), supra note 28, at Annex 4. 36 African Union, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, paragraph 5 (2003). Expanding Women’s Voice, Agency, and Empowerment 223 Yet, many penal and civil law codes fail to criminalize certain kinds of physical, sexual, or emotional violence. As a result, domestic violence sta- tistics around the world are horrifying: at least 1 of every 10 ever-partnered women is physically or sexually assaulted by an intimate partner or someone she knows at some point in her life.37 Progress in legislating to prevent vio- lence against women has been uneven across regions. The Middle East and North Africa in particular lag behind in legislating against all forms of vio- lence against women—no country in the region has legislation criminalizing marital rape, less than 20 percent of the region has legislation against domestic violence, and just over 20 percent of countries have legislation against sexual harassment. Other regions are more varied—less than 40 percent of countries in East Asia and the Pacific have legislation against sexual harassment, and 37 WDR 2012, supra note 1. World Bank Efforts to Improve Women’s Land Rights Foster Empowerment and Agency In recognition of the importance of property rights in fostering women’s empow- erment and agency, the World Bank has been working with local authorities in some areas to facilitate more equal property ownership. In Aceh, Indonesia, where the 2004 tsunami affected 800 kilometers of coast- line and destroyed close to 53,800 parcels of land, the Bank integrated gender into its post-tsunami reconstruction efforts. The land administration system sus- tained significant damage—documentation of land ownership was washed away, one-third of the National Land Agency’s staff were killed, and physical boundary markers disappeared. The impact on women was particularly grave, because the tsunami deprived them of the safety nets offered by families, especially spouses and parents. In Aceh, land issues are traditionally considered to be the “natural” dominion of men, and this norm is reinforced by the lack of female representation on local committees and the absence of gender-disaggregated data. The Reconstruction of Aceh Land Administration System (RALAS) project integrated a well-functioning and gender-informed approach to land and prop- erty rights by introducing joint titling and recording gender in the official register. Neither of these practices existed before. Considering that more than 275,000 land parcels have been registered during RALAS, the recording of gender is a signifi- cant step forward. In addition, RALAS has been engaged in the promotion of women’s land rights by advocacy and policy dissemination with the study Gender Impacts of Land Titling in Aceh. The experience in Aceh has informed the work of reconstruction teams in Haiti, who recognize that taking gender-related factors into account in land administration can diffuse tensions over identity, status, and power that may threaten peace and security in postconflict situations. The World Bank Legal Review224 just over 40 percent of countries in South Asia and Sub-Saharan Africa have legislation against domestic violence.38 Violence against women and girls perpetrated by family members also remains largely outside the law. Rape within marriage is illegal in only one- third of all countries.39 Even where legislation exists, societal norms may result in persistently high rates of domestic violence. These norms may be widely shared by women and men. In too many countries—including Burkina Faso, Ethiopia, Guinea, Mali, Morocco, and Sierra Leone—more than half of women think it is acceptable for a man to beat his wife when they argue.40 Laws Regulating Women’s Participation in the Economy Women make up only 41 percent of the total workforce in the formal sector and tend to be concentrated in lower-paid and lower-status jobs.41 Evidence suggests that laws explain part of this disparity. Laws can restrict a woman’s participation in the economy, including restrictions on working hours, the sec- tors in which a woman can work, and mandates requiring lower retirement ages for women. Women, Business, and the Law documents 44 countries that restrict the working hours of women and 71 that limit the industries in which women can work relative to men. These restrictions are evident across all in- come levels and all regions of the world—this is not just a developing-country phenomenon. Statutory provision for child care and maternity leave and benefits, along- side the recognition of flexi-time or part-time work, can improve women’s participation in the labor force. In Latin America, 19 of the 20 countries in- cluded in Women, Business, and the Law legally require the state to provide or subsidize child care. These mandates can translate into available and afford- able child care, as in Colombia, where the government’s Hogares Comuni- tarios program pays women a small fee to take care of other women’s children and provides the caregiver food to feed the children three times a day.42 Yet, in Guatemala and Mexico, notwithstanding the legal obligation of the state to provide or subsidize child care, the lack of available care often pushes women into informal employment, and in Peru, 40 percent of working mothers take their children to work.43 The availability of part-time or flexible work can increase women’s partici- pation in the labor force, particularly women with young children. In Argen- 38 UN Women (2011–2012), supra note 28, at Annex 4. 39 WDR 2012, supra note 1. 40 WDR 2012, supra note 1. 41 WBL, supra note 8. 42 Orazio Attanasio and Marcos Vera-Hernandez, Medium and Long-Run Effects of Nutrition and Child Care: Evaluation of a Community Nursery Programme in Rural Colombia (Centre for the Evaluation of Development Policies, Institute for Fiscal Studies EWP04/06 2006). 43 WDR 2012, supra note 1. Expanding Women’s Voice, Agency, and Empowerment 225 tina, as a result of the availability of part-time employment contracts, partici- pation by married women with children in formal employment increased 9 percent and self-employment was reduced by 7 percent as compared to that by married women without children.44 In 41 countries, employees with chil- dren who are minors have additional legal rights to flexible or part-time work schedules, whereas in many countries, part-time work is not legally recog- nized at all.45 There has been progress toward equal rights in the workplace, at least on the statutory side. More than 100 countries now have laws on nondiscrimina- tion in hiring, and 128 have laws requiring equal pay for equal work. Laws against sexual harassment in the workplace are lagging, however, with only 75 countries having formal sexual harassment laws in place. This may be a reflection of underlying social norms that permit such behavior, as touched on above and discussed further below. Legal Pluralism and Its Impact on Women’s Agency Many countries have plural legal systems that formally recognize religious or customary laws alongside statutes. Today, 52 countries recognize customary and religious law as valid sources of law under constitutions. This is most common in Sub-Saharan Africa, where 25 countries formally recognize at least one religious or customary law, followed by the Middle East and North Africa, where 11 countries constitutionally recognize alternative sources of law.46 The recognition of legal pluralism is generally welcome—reflecting the right of all communities to their own cultures and for indigenous communities the right to determine their own systems of law and justice.47 Plural legal systems are not inherently good or bad for women’s agency; the value depends on the extent to which such systems (both statutory and customary) are nondiscriminatory.48 In practice, as documented below, plu- ral legal systems can create barriers for women’s rights and access to justice. The plurality may affect both the content of the law—in Indonesia, there are six official religions and the state recognizes different provisions regulating marriage and divorce for each—and the process—in the United Kingdom, the 1996 Arbitration Act allows for private religious arbitration by Jewish and Muslim organizations on some disputes between spouses.49 44 WDR 2012, supra note 1. 45 WBL, supra note 8. 46 WBL, supra note 8. 47 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UN GA Res. 61/295 (2007). 48 Sandra Fredman, Anti-discrimination Laws and Work in the Developing World: A Thematic Over- view (forthcoming). 49 UN Women (2011–2012), supra note 28. The World Bank Legal Review226 Legal pluralism matters for the exercise of women’s agency because the scope of customary or religious laws often pertains to marriage, divorce, assets and land ownership, inheritance, or other “personal” laws. Legal pluralism can give rise to gender discrimination in family laws, gender-based violence, and procedural bias. In at least 28 countries, parallel legal systems are exempt from meeting constitutional standards, such as nondiscrimination or equal protection pro- visions. Among these countries, 20 differentiate between men and women in areas covering access to institutions and 15 differentiate between men’s and women’s legal capacity to own, manage, control, and inherit property.50 Formal and informal customary and religious laws sometimes contra- dict constitutional or statutory gender parity. The constitution of Botswana expressly exempts laws pertaining to divorce, adoption, marriage, and de- volution of property and other personal and customary laws from the con- stitutional equality guarantee. This exemption has permitted continuing dis- crimination against women in customary law and practice, including early marriage, polygamy, and the continued practice of legal guardianship by men of unmarried women.51 In the Philippines, despite the constitutional guaran- tee of equality before the law, the Code of Muslim Personal Laws permits polygamy and the marriage of girls under 18. Forced marriages are also still tolerated under this system.52 In other countries, including Kenya53 and South Africa, the constitution overrides such laws in cases of inconsistency, subordinating them to the over- riding principle of equality. In South Africa, the bill of rights has enabled women to challenge discriminatory elements of customary law on the basis of their unconstitutionality.54 Plural legal systems can create barriers to women accessing justice. Mul- tiple systems can lead to a complex web of overlapping systems, which can in turn generate gaps and exacerbate the challenges women already face in real- izing their legal rights. Multiple legal systems can mean that issues such as do- mestic violence are dealt with by alternative dispute-resolution mechanisms, often with the effect of decriminalizing the offense or allowing scope for the male perpetrator or his family to influence the victim. In Brazil, special crimi- nal courts were set up as a form of alternative dispute resolution mechanisms for minor offenses. In practice, 60 to 80 percent of plaintiffs were women, mainly bringing complaints of physical abuse and threats. Reportedly, 50 WBL, supra note 8. 51 S.15, Constitution of Botswana, as discussed in Fredman, supra note 48. 52 Fredman, supra note 48. 53 There is a limited exception for the Khadis courts, applying Muslim law; see WBL, supra note 8. Apart from that, no other customary or personal-status law is exempt, as made explicit in Article 2(4) and Article 60(1)(f) of the Constitution of Kenya. 54 South Africa Constitution, Section 39(3). Expanding Women’s Voice, Agency, and Empowerment 227 90 percent of domestic violence cases ended at the first stage of conciliation, either because of intimidation by the accused or because the judge pressed for the case to be closed. Recognizing the negative impact of the trivialization of these crimes, Brazil passed a new law on domestic and family violence in 2006, ending the practice.55 Laws in Practice—Barriers to Access and Enforcement The expansion of economic opportunities, the adoption of progressive laws, and the evolution of legal systems are all critical to—indeed, necessary for— translating women’s rights into the true exercise of agency, but they are not sufficient on their own. Lack of access to justice for women in many parts of the world persists. This can be explained in part by the unaffordable costs of justice or the lack of awareness of rights. Women can be more adversely af- fected by lack of access due to lower incomes, lower literacy, less mobility, and more restricted social networks. Lack of mobility and time, as well as social stigma and psychological trauma involved in bringing claims, often impedes women from seeking justice. When combined with rigid social norms, these factors can prevent women from seeking and receiving justice according to the rights they already have. The vast majority of countries formally grant equal access to the court system for men and women. However, in 11 countries (the Islamic Republic of Iran, Kuwait, Malaysia, Oman, Pakistan, Saudi Arabia, Sudan, the Syrian Arab Republic, the United Arab Emirates, the West Bank and Gaza, and the Republic of Yemen), the testimony of a woman carries less evidentiary weight than that of a man in family law cases. In the Democratic Republic of Congo, married women need the permission of their husbands to initiate legal pro- ceedings in court.56 Women face a range of social barriers to accessing the justice system. These can include a lack of knowledge about legal rights, dependence on male rela- tives, and restriction of mobility, as well as the threat of social stigma outlined above. In Uganda, statutory land reform resulted in more ownership rights for women than traditional practices had accorded them, yet many women were unaware of these new rights or were precluded in practice due to the high cost of legal procedures and/or loyalty to customary practices.57 In some communities, social norms dictate that women cannot approach the justice system without the assistance of a male relative. This is the case in Timor-Leste, where 58 percent of Timorese, both men and women, disapproved 55 See UN Women (2011–2012), supra note 28, for discussion. 56 WBL, supra note 8. 57 Debbie Budlender & Eileen Alma, In Focus: Women and Land, Securing Rights for Better Lives (International Development Research Centre 2011). The World Bank Legal Review228 of women speaking on their own behalf in local disputes.58 A lack of voice in household decisionmaking can also impede women from being sufficiently empowered to bring a claim before the justice system. A woman’s limited con- trol over household property and assets can make her less likely to bring a claim of domestic violence, for example, because the case is likely to be taken against a family member upon whom she may be financially reliant. Social stigma in the case of sexual and domestic violence is a significant barrier in both developed and developing countries. In Haiti, fear of social stigmatiza- tion and retribution, as well as distrust in the ability of the judicial system to protect them, causes many female victims of sexual violence to remain silent. It may also prevent victims from seeking medical attention.59 Institutional barriers pose a significant challenge. Courtrooms may be dis- tant and costs may be unaffordable. In Kenya, a formal claim for land in an inheritance case can involve up to 17 different legal steps, which translates into legal fees of as much as US$780. Service providers, including police, law- yers, and court officials, may not be versed in or responsive to women’s needs. Data on sexual violence and robbery demonstrate that underreporting of of- fenses by women results from the interaction of these various factors. Across 57 countries, 10 percent of women say they have experienced sexual assault, but among those victims, only 11 percent reported the assault.60 And where women lack access to or control over financial resources or independent in- come, the financial costs of pursuing legal recourse in the absence of free legal aid can be prohibitive. Police, court staff, and even judges often reflect the discriminatory atti- tudes of wider society, and in some cases they may not be fully aware of the rights pertaining to women. This situation provides an additional barrier to women’s access to justice and results in women facing hostility or push-back from the very people who are supposed to uphold their rights. The first step in overcoming this barrier is better representation of women in the organizations charged with implementing and enforcing the law. Quotas have been used in Ethiopia, where one member on each land committee must be a woman. The benefits of this representation have been twofold—it has helped raise aware- ness about land issues among local women, and it has increased their partici- pation in the land registration process.61 The CEDAW committee expressed concern about bias in judicial deci- sionmaking that stemmed from a complaint lodged by a rape survivor in the Philippines, which alleged that societal misconceptions about rape—such as the idea that rape victims are timid or easily cowed and that when a woman 58 Asia Foundation (2008), as reported in UN Women (2011–2012), supra note 28. 59 Lisa Davis & Blaine Bookey, Respecting the Right to Health of Haitian Women and Girls, 13(1) Health & Hum. Rights (2011). 60 Lovett & Kelly (2009), as reported in UN Women (2011–2012), supra note 28. 61 N. Kumar & A. Quisumbing, Policy Reform towards Gender Equality in Ethiopia: Little by Little the Egg Begins to Walk (Institute for Food Policy Research 2010). Expanding Women’s Voice, Agency, and Empowerment 229 knows her attacker, consent is implied—were relied on by the judge in ac- quitting her alleged rapist.62 A 2004 report of the World Bank Workshop on the Development Implications of Gender-Based Violence demonstrates that women’s access to justice in the context of gender-based violence needs to be improved. In particular, the report notes that many judges and other legal pro- fessionals lack the necessary knowledge about gender-based violence to apply international conventions on women’s rights, and that empowering ministries for women’s affairs is essential because they can play a central role in creat- ing the political space needed for this issue to be included more frequently in policy dialogue.63 There are some promising cases of reform in this area. Women in Indone- sia identified high court fees as an obstacle to obtaining divorce certificates, which are required to access social assistance programs such as free health care, cash transfers, and subsidized rice. In response, the World Bank, in col- laboration with PEKKA—an Indonesian NGO that works with more than 12,000 female heads of household across 330 villages to raise awareness of women’s legal rights and to improve women’s access to justice through for- mal legal processes—encouraged the Supreme Court to waive court fees for poor women and to hold circuit courts in rural areas. This quadrupled the number of people in remote areas who have been able to access the courts for family law matters. The Bank also worked with PEKKA to provide training for village paralegals on issues related to family law and domestic violence. To promote greater understanding among government officials, a World Bank project in Kosovo is working with Municipal Cadastre Offices (land management offices) to implement more accurate procedures for registering land transactions, in part by ensuring that their practices are fully following the law, including the Gender Equity and Family Law, in all areas related to inheritance, purchasing, or the sale of property and mortgages. The goal is to help ensure that women receive their inheritance rights, that married wom- en’s rights are properly registered, and that married women actually agree to the transactions made by their husbands.64 World Bank Projects Have Unintended, yet Positive, Effects on Increasing Women’s Agency through Access to Justice A project in Jordan aimed to enhance community-driven legal aid services to the poor. The project was housed within offices of an NGO providing social welfare services, which allowed women to seek advice without attracting at- tention or hostility from their community. During a two-year period between 62 UN Women (2011–2012), supra note 28. 63 World Bank, Report on the Outcomes of the Workshop: The Development Implications of Gender- Based Violence (Gender and Development Group, PREM 2004). 64 World Bank, Mainstreaming Methods to Improve Property Rights in the Kosovo Real Estate Cadas- tre and Registration Project (World Bank 2012). The World Bank Legal Review230 2009 and 2011, it provided free or reduced-cost legal counseling for 700 peo- ple; more than 70 percent of its clients were women. Inspired by the example, the Jordan Center for Legal Aid, with the Jordan Bar Association, created the first pro bono lawyers’ association. The association provides a system of “one- stop shops” for legal aid and counseling and improves access to and quality of service. The Ministry of Social Welfare agreed to refer poor women in need of assistance to the Justice Center for Legal Aid. In Vietnam, the World Bank has provided ongoing support to the govern- ment to foster effective implementation of the 2007 Law on Gender Equal- ity and the National Strategy on Gender Equality. The National Strategy on Gender Equality set out 5 objectives and 20 quantitative targets to eliminate discrimination and ensure women’s equal rights in the fields of labor employ- ment, education, and health care; to improve the quality of women’s partici- pation in economic, political, and social fields; and to enhance the capacity of national machinery for the advancement of women. To further these goals, the World Bank supported awareness raising and capacity building within relevant ministries, and worked with these ministries to build systems of ac- countability, including through a series of development policy loans. Social and Cultural Norms Interact with Laws The persistence of patriarchal attitudes and deep-rooted gender stereotypes in relation to women’s roles and responsibilities perpetuates gender inequality and limits the extent to which formally recognized women’s rights can be real- ized in practice. As eloquently noted by Devaki Jain in her review of the United Nations’ 60-year quest for equality and justice, “Many cultural traditions have embargoes on many dimensions of women’s concerns and freedom. It is here that culture clashes with women’s access to the universality of human rights; often traditions and religious practices hurt and discriminate.”65 In this sense, disequalizing social norms and values can prevent laws from removing con- straints to agency. A stark example of the impact norms can have on women’s empower- ment, voice, and agency is the restriction on women’s mobility. Legal restric- tions on mobility are present in certain countries: 4 of the 141 countries in- cluded in Women, Business, and the Law legally restrict married women from leaving the home in the same way as a man; 16 countries restrict married women from getting a job in the same way as a man; and in 22 countries, married women cannot apply for a passport in the same way as a man. Social norms in many more countries dictate what is acceptable behavior for women. In all 19 countries included in the WDR 2012 qualitative study on gender and economic choice, for example, social norms were the most frequently cited constraint on women’s physical mobility. In Malawi, social norms deterred 65 Devaki Jain, Women, Development and the UN: A Sixty-Year Quest for Equality and Justice, United Nations Intellectual History Project (Indiana U. Press 2005). Expanding Women’s Voice, Agency, and Empowerment 231 pregnant women from using a bicycle ambulance that was set up to improve emergency obstetric care.66 Social norms can interact with formal laws to dictate the extent to which women’s higher personal incomes translate into greater voice and bargaining power within the household. About 20 percent of the participants in the WDR 2012 qualitative study said that husbands have complete control over their wives’ income. Participants also reported that when women do not retain con- trol over their earnings, the potential empowering role of those earnings is limited. High rates of domestic or gender-based violence can be traced to prevail- ing norms. Several countries with serious problems of violence against women have passed legislation relating to domestic and other violence—Bangladesh, Brazil, Nepal, the Philippines, and Zambia—yet patterns of violence contin- ue. A World Health Organization multicountry study revealed that 13 to 61 percent of women experience physical violence in their lifetime,67 while more than 60 percent of women in Bangladesh experience some form of domes- tic abuse during their lifetime.68 Thus, although legislation protecting against such behavior is critical, so is the effective implementation of laws and revised cultural perspectives about the acceptability of violence. Because prevailing social norms in a number of areas can limit the effect of laws to the detriment of gender equality, concerted efforts on this front are needed. Gender norms can be persistent and resilient to change. This is par- ticularly true when an increase in women’s empowerment and agency threat- ens the balance of power within households and communities. The good news is that change is possible. In India, increased female leadership influenced adolescent girls’ career aspirations and educational attainment. Following a 1993 law that reserved female leadership positions for women in randomly selected village councils, the gender gap in career aspirations closed by 25 per- cent in villages that were assigned a female leader for two election cycles, and the gender gap in adolescent educational attainment was erased completely, with girls spending less time on household chores.69 66 K. Lungu et al., Are Bicycle Ambulances and Community Transport Plans Effective in Strengthen- ing Obstetric Referral Systems in Southern Mali? 13(2) Malawi Med. J. 16–18 (2001). 67 World Health Organization, WHO Multi-country Study on Women’s Health and Domestic Vio- lence against Women (WHO 2005). 68 L. M. Bates et al., Socioeconomic Factors and Processes Associated with Domestic Violence in Rural Bangladesh, 30(4) Intl. Family Planning Perspectives 190–99 (2004). 69 Lori Beaman et al., Female Leadership Raises Aspirations and Educational Attainment for Girls: A Policy Experiment in India (2012), available at http://www.sciencexpress.org/12 January 2012/Page 1/10.1126/science.1212382. http://www.sciencexpress.org/ The World Bank Legal Review232 Conclusions This chapter has considered how laws can enhance or limit women’s voice and agency. There are several highlights. First, discrimination persists in many formal statutory legal systems, especially for married women. Second, many countries have plural systems of law related to marriage, divorce, succession, or other “personal” issues that limit rights that may exist. Third, the enforce- ment of rights and the ability for women to seek redress are critical if rights are to encourage the exercise of voice and agency. Finally, and also related to enforceability, social and cultural norms interact with laws to limit or enhance their effectiveness. Although there has been much progress on the front of enhancing wom- en’s voice, agency, and empowerment, the challenges that remain are signifi- cant. The dearth of gender-disaggregated data is also a limiting factor, imped- ing the policy and advocacy work necessary to reform laws. The priorities now are twofold: legal reform is critical. But legal reform alone is insufficient. It must be combined with changes in accessibility and enforceability of laws and changes in social norms around gender roles and women’s abilities. Such norms can limit the effect of laws, services, or incomes to the detriment of women’s voice, agency, and empowerment. By employing innovative approaches, legal structures have the potential to significantly in- crease women’s agency. The World Bank has a strong track record in working in partnership to promote women’s voice, agency, and empowerment through financing, innovation and learning, and investing in data and knowledge to help better understand and address the underlying inequalities. 233 “We Want What the Ok Tedi Women Have!” Guidance from Papua New Guinea on Women’s Engagement in Mining Deals Nicholas MeNzies aNd GeorGia harley Despite global gender equality gains in education, life expectancy, and labor force participation, two areas of persistent inequality remain: asset gaps and women’s agency.1 In many developing countries, including Papua New Guinea (PNG), natural resources are citizens’ key asset. Women’s agency over these assets—their ability to make choices and transform those choices into actions and outcomes (or more simply, the ability to define goals and act on them)—is commonly weak. This is especially so when the resources are accessed for capital-intensive development. Empowering women to exercise agency and control over natural resources and the revenues that flow from them is thus an important contemporary focus for engagements related to gender equality and economic development. The mining regulatory regime in PNG provides a relatively strong posi- tion for communities. Agreements between the state, companies, and impact- ed communities commonly include significant community benefits, such as a share of royalties and an equity stake in the mine. However, significant gender inequality, both locally and at the national level, means that women’s voices are rarely represented in agreement making.2 Women end up with control of The authors would like to thank Belden Dasa, Musje Werror, Nigel Parker, Ian Middleton, Jamila Abassi, Almah Tararia, Patricia Kassman, Nicole Haley, Adriana Eftimie, Waafas Ofosu- Amaah, Lwanzo Amani, Sakuntala Akmeemana, Laura Bailey, and Phillipa Carr, who were closely involved in the design, implementation, and write-up of this work. Even so, errors of fact and interpretation are those of the authors, as are the views expressed in this paper, which should not be attributed to the World Bank, its executive directors, or the countries they represent. 1 World Bank, World Development Report 2012 Gender Equality and Development. Strengthen- ing the role of women in household and community decision making has been shown to have positive development impacts, as women tend to prioritize productive expenditures for their families and communities (including for food, health, and education) over unpro- ductive consumption (such as of alcohol, cigarettes, and gambling). 2 Prior to the 2012 election, when three women were elected at once, only three women had ever been elected in the 37-year history of PNG’s parliament. Moreover, roughly two-thirds of women experience gender-based violence in their lifetimes, and maternal mortality rates are some of the highest in the region. The World Bank Legal Review234 few, if any, benefits, while bearing a disproportionate burden of the social and environmental costs of mining.3 The Ok Tedi mine, located in the northern corner of PNG’s Western Prov- ince, is an exception, albeit qualified, to this general state of affairs. The prov- ince receives a significant share of mining revenues, yet service delivery in the area remains weak. On top of provincial government revenues, impacted communities have received benefits totaling more than 2 billion PNG kina (US$980 million) over the past decade.4 Revised compensation agreements at the Ok Tedi mine, called Community Mine Continuation Agreements (CMCAs), concluded in 2007 are an encouraging innovation.5 Women had a seat at the negotiating table and secured an agreement giving them 10 percent of all benefits, 50 percent of all scholarships, cash payments into family bank accounts (to which women are cosignatories), and mandated seats on the gov- erning bodies implementing the agreement (including future reviews of the agreement). Women’s entitlements are elevated to legally enforceable rights at the heart of the mining company’s license to operate. Such an arrangement is unprecedented anywhere in the world. At the 2010 Women in Mining conference in the town of Madang,6 women from mining communities across PNG exclaimed, “We want what the Ok Tedi women have!” This chapter is based on research in the North Fly (one of three areas impacted by the 2007 agreement).7 It explores the process of negotiation and progress in implementation of the agreement, examining how the agree- ment came about, assessing whether its promise is being realized in practice, 3 See, for example, M. Macintyre, Modernity, Gender and Mining: Experiences from Papua New Guinea, in Gendering the Field: Towards Sustainable Livelihoods for Mining Communities (ANU E- Press 2011). See also M. Macintyre, Petztorme Women: Responding to Change in Lihir, Papua New Guinea, Women’s Groups and Everyday Modernity in Melanesia, 74 (1–2) Oceania (Special Issue) 120–33 (2003). The experience of some indigenous communities in Australia and Canada provides examples of women playing key roles. See C. O’Faircheallaigh, Women’s Absence, Women’s Power: Indigenous Women and Negotiations with Mining Companies in Australia and Canada, Ethnic and Racial Studies 1–19 (2012). 4 Mine operator, Ok Tedi Mining Limited (OTML) data. 5 The five main benefit streams under the CMCAs are cash (the mine operator disburses cash into a mix of family and some clan bank accounts with an annual payment per person); vil- lage projects (each village submits applications for small-scale projects and goods, such as water tanks, outboard motors, and animal husbandry); investments (the foundation invests funds in projects to earn an ongoing return, such as passenger and cargo vessels on the Fly River, housing in Kiunga, and passenger planes); school scholarships (primary, secondary, and tertiary); and the Women and Children’s Fund (10 percent of all benefits are set aside for women, whose use is to be decided upon by women’s groups). 6 The third in a series of meetings focused on communities and women in mine-affected areas, sponsored by GoPNG and the World Bank as part of the ongoing sectoral program of techni- cal assistance financed by the Bank in PNG. 7 Villages visited for this research were mine villages (Finalbin); river villages (Atkamba, Moian, and Yogi); and road villages (Ningerum, where people came from other road villages to participate in focus group discussions). All villages were in North Fly District (except for Moian, which is in Middle Fly). Impacts and conditions in Middle and South Fly districts are known to be different and are not covered in this study. “We Want What the Ok Tedi Women Have!” 235 and providing guidance for mining and gender practitioners hoping to use mining agreements to improve development outcomes for women, both in PNG and farther afield. Underpinning the approach to assessing the implementation of the agree- ment are two widely held tenets of contemporary development practice: • Community-driven development (CDD) has played an increasingly im- portant role in fragile institutional contexts. Rather than treating poor and marginalized people as the target of poverty-reduction efforts, CDD gives control over planning decisions and investment of resources to community groups and local governments—it operates on principles of empowerment, community ownership, participatory governance, greater downward accountability, and enhanced local capacity.8 Complexity of- ten undermines accountability and transparency, and thus key principles, such as clear and simple rules of the game and access to information, are crucial to the premise of CDD. • A political economy approach to delivering development programs is one that is designed to mitigate some key risks (such as elite capture and leakage) through a better understanding of existing power structures and patronage systems and by working actively to overcome constraints. Implementation is an ongoing process of measuring progress against ar- ticulated development objectives and adjusting delivery of the program accordingly. Background of the Ok Tedi Mining Negotiations The history, ownership structure, and importance of Ok Tedi to PNG’s economy have been critical in shaping the negotiation process and outcomes. The mine and affected communities have been engaged in long-running disputes that primarily concern significant environmental damage from the disposal of tailings and mine waste into the Ok Tedi and Fly river systems.9 The disputes occur in the historical context of tension over the impacts of the Panguna mine on Bougainville, which led to conflict and the creation of an au- tonomous region with a pathway to independence from PNG. Issues of con- cern regarding the Ok Tedi mine include loss of fish stocks and water sources, increased flooding leading to the destruction of forests and food gardens, and increased mosquito-borne diseases. Residents along the road between the 8 Experience has shown that given clear rules of the game, access to information, and appro- priate capacity and financial support, poor men and women can effectively organize in order to address local problems by working in partnership with other state and nonstate develop- ment actors. 9 Ok Tedi website, http://www.oktedi.com/community-and-environment/the-environment /impacts-of-mining. The original project design included a tailings dam, but the dam’s foun- dations were washed away in a landslide early in construction in 1984 and were not rebuilt. The national government and OTML agreed to allow the tailings to discharge directly into the river. http://www.oktedi.com/community-and-environment/the-environment/impacts-of-mining http://www.oktedi.com/community-and-environment/the-environment/impacts-of-mining The World Bank Legal Review236 Figure 1. Map of Western Province, PNG Source: World Bank. “We Want What the Ok Tedi Women Have!” 237 mine and the river port in Kiunga also complain about dust from passing con- voys. According to an independent environment expert, the riverine impacts are likely to be felt for “several hundred years” and are borne more heavily by women, who are traditionally responsible for crop production, than by men.10 In 1994, affected communities mounted a class action lawsuit against the mine’s then major shareholder, BHP Pty Ltd, in the Supreme Court of Victoria, Australia, (where BHP is registered). The case was settled with a US$500 mil- lion payout and a commitment to contain tailings and mine waste disposal.11 The case drew international interest at the time for its use of tort law to secure the accountability of a multinational company for environmental damages.12 In 2000, due to community complaints about the mine’s continued use of riverine tailings disposal and the mine’s concern about ongoing environ- mental liability, BHP queried whether the mine should close.13 The mine is the single largest contributor to the PNG economy,14 and thus the state had, and still has, a strong interest in its continued operation. To allow operations to continue, the mine’s majority shareholding was divested to a development trust, the PNG Sustainable Development Program Limited (PNGSDP), beneficially owned by the people of PNG and registered in Singapore to ensure relative independence from day-to-day politics.15 The 10 Alan Tingay, Letter of Endorsement from the Independent Scientist Appointed to the CMCA 2006/7 Review Process (Apr. 16, 2007) (Attachment B to CMCAs). 11 G. Banks & C. Ballard, The Ok Tedi Settlement: Issues, Outcomes, and Implications (Asia Pacific Press 1997). 12 Since the Ok Tedi case, class actions have become increasingly prevalent, including actions taken against Freeport-McMoRan’s Grasberg mine in West Papua, Indonesia; Exxon-Mobil’s natural gas installation in Aceh, Indonesia; Unocal’s oil pipeline in Burma; Shell’s petroleum operations in the Nigerian delta; Rio Tinto’s copper mine on Bougainville; Texaco’s petro- leum operations in the Ecuadorian Amazon; and Thor Chemical’s use of mercury-based chemicals in South Africa. See Banks & Ballard, supra note 11. See also Peter Newell, Access to Environmental Justice? Litigation against TNCs in the South 32(1) R. Crook and P. Houtzager, Making Law Matter: Rules, Rights and Security in the Lives of the Poor, IDS Bulletin 83–93 (2001); Halina Ward, Securing Transnational Corporate Accountability through National Courts: Implica- tions and Policy Options, 24 Hastings Int. & Comp. L. Rev. 451–74 (2001). 13 BHP reported that, even if mining stopped immediately, downstream environmental im- pacts would continue to increase and would likely persist for at least 50 years. Parame- trix, Inc. and URS Greiner Woodward Clyde, Draft Executive Summary: Assessment of Human Health and Ecological Risks for Proposed Mine Waste Mitigation Options at the Ok Tedi Mine, Papua New Guinea; Screening Level Risk Assessment, prepared for Ok Tedi Mining, Ltd., 1–13 (Aug. 13, 1999), available at http://www.oktedi.com. 14 In 2010, export earnings represented 18 percent of the country’s GDP, and taxes and divi- dends to the national government represented 18 percent of tax revenue and 17 percent of government domestic revenue. 15 The PNGSDP comprises a long-term fund and a development fund. The long-term fund in- vests two-thirds of the net income received from OTML in low-risk investments for the future benefit of the people of PNG after the mine’s closure. It has a balance of more than US$1.2 billion. The development fund invests one-third of net income received from OTML in sus- tainable development projects. Two-thirds of those projects are national and one-third are focused in Western Province. For a full description of BHP’s exit strategy and the PNGSDP, see http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/20 http://www.oktedi.com http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2011/06/14/000333037_20110614052552/Rendered/PDF/624980NWP0P1160ns00trusts0and0funds.pdf The World Bank Legal Review238 PNGSDP invests significant amounts in Western Province, including in com- munities affected by the Ok Tedi mine, which, with other mine-related and government sources, creates a complex web of real and potential benefits for communities.16 The mine was required under law to enter into legally enforce- able consent agreements with affected landowners and users. These became known as Community Mine Continuation Agreements (CMCAs). In 2001, the first CMCAs were negotiated. In accordance with a five-year review period, a revised set of CMCAs was negotiated in 2006 and 2007. The revised set of CMCAs now covers more than 90,000 people in 156 villages stretching from the villages in the Highlands around the mine site near Tabubil, along the Ok Tedi and Fly Rivers, to the mouth of the Fly (see figure 1).17 Negotiation of the Agreement Negotiations between mining companies, the state, and landowners are in- variably subject to extreme asymmetries of information and power. These characteristics reduce the likelihood of equitable agreements and limit the po- tential of mining investment to contribute to development outcomes. Over time, entrenched asymmetries can build tension between the parties and un- dermine the durability of mining investment. The CMCA review process at the Ok Tedi mine addressed these challenges to some extent. For the CMCAs, the experience with Bougainville’s Panguna mine; the long history of dispute, litigation, and engagement around Ok Tedi; the mine’s beneficial ownership; and the advanced stage of the mine’s life were key factors resulting in a more positive consultation process being established. For the 2006–07 review, with over 20 years of experience in the area and pro- duction ongoing during negotiations, the mine operator suffered fewer of the time pressures that mining companies often face when negotiating agreements prior to the commencement of operations. Mine management also responded to the international pressure (from NGOs and multilateral organizations) that the environmental damage and litigation had brought, with a desire to leave an improved legacy. Although not without its challenges, the 2006–07 CMCA review process was in many ways a model one, and the quality of the process was impor- tant to women’s ability to secure the deal they did. The broadly consultative process, significant time taken, and independent facilitation and advice all helped to ameliorate asymmetries and build trust. The review process lasted 11/06/14/000333037_20110614052552/Rendered/PDF/624980NWP0P1160ns00trusts0 and0funds.pdf. 16 In addition to five main sources under the CMCAs, other sources of local projects include the Alice River Trust (set up after the class action suit), mine charitable projects, mine- implemented tax-credit projects, member-of-parliament-controlled constituency develop- ment fund projects, and local government projects. 17 The number of villages has increased over time because some communities that were origi- nally opposed to the agreements have since joined. http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2011/06/14/000333037_20110614052552/Rendered/PDF/624980NWP0P1160ns00trusts0and0funds.pdf http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2011/06/14/000333037_20110614052552/Rendered/PDF/624980NWP0P1160ns00trusts0and0funds.pdf “We Want What the Ok Tedi Women Have!” 239 18 months and cost K7 million (US$3.4 million), paid for by the mine. See the box below for a summary of the negotiating process. CMCA Negotiations: An Innovation Independent international (the Keystone Center) and local (the Tanorama Network) facilitators were selected jointly by the mine and CMCA community leaders to design, support, and guide the process. Independent legal, environmental, and accounting advice was engaged for communities at no cost to them. Prominent former chief justice of the PNG Supreme Court, Sir Arnold Amet, was ap- pointed as the independent legal observer; he became an adviser to the affected communities. The top-level negotiations were held in Tabubil, the township at the base of the mine. Regional-level meet- ings were held in each of three impacted subregions, and village meetings in almost all the impacted villages. Delegates to regional meetings were directly elected by their village constituencies, and the representatives at the top-level negotiating table in Tabubil were elected from the regional meetings. Women’s Engagement in the Negotiations The quality of the overall process provided a positive environment for women to exercise agency. Yet initially, women were not included at all. In the nego- tiation’s early stages, all community representatives were men. In deference to their understanding of local custom, the independent facilitators did not challenge this situation. As one facilitator noted, “we had to be very careful not to be perceived as undermining local authority or customs.” Instead, fa- cilitators asked the male representatives to ensure that they represented the views of their entire group, including women and children. The on-site nature of the discussions meant that, at least for the regional meetings, some women were able to sit outside the negotiations and listen, even though they were not seated at the negotiating table. As negotiations continued, it became apparent that women’s views were not being represented. The mining company’s management understood that the CMCAs would be more likely to achieve development outcomes if women were involved. One senior company representative reflected that “there would be a payout at the end, and there was some concern that the men may drink that away, or buy jeeps, cigarettes etc.” A delegate noted that “the women were so involved in health and education, they would end up being respon- sible for implementing social projects in the region.” Improved development outcomes could foster community support in favor of the mine and reduce the chances of mining-related complaints. And so it was recognized that women’s voices should be heard in the negotiations. The combined support of the com- pany and independent facilitators was critical in convincing the male benefi- The World Bank Legal Review240 ciaries and the state that women should have a seat at the main negotiating table. With negotiations at midpoint, a women’s delegation was established. As one facilitator noted, “the women were so happy that they had a seat at the table—they felt they had won something already.” Women’s involvement was structured around a single delegate at the cen- tral negotiating table and a separate women’s caucus that gathered outside of the main meeting to formulate negotiating positions. There were also consulta- tions with women in impacted villages. The facilitators worked closely with the mine’s gender desk, which had received prior support from a national-level Women in Mining project18 and had assessed women’s development needs. Ume Wainetti was identified as the women’s delegate. Mrs. Wainetti is from the impacted region yet also has a national profile as former chair of the National Council of Women and current convener of the national Family and Sexual Violence Action Committee. In negotiations, Wainetti used cul- tural cues and tactics, describing herself to other delegates as a “sister and aunty.” Coming from the impacted area, Wainetti could both be more asser- tive and employ a range of emotions with the male village representatives more freely than an outsider. Wainetti ensured that she sat next to the mining company managing director at key moments. Presentations of health statis- tics for women and children, combined with emotive personal stories, helped to influence the men at the table. One facilitator observed that Wainetti was “one of the best negotiators at the table.” Her competence in this regard likely stemmed from a combination of tertiary education (when most of the other delegates had only primary level), a combination of national status and local roots, and substantial leadership and negotiation skills acquired in national and international settings. In support of Wainetti as the women’s delegate, a caucus of about 20 women constituted an important forum for both education and developing an informed negotiating position that Wainetti would take to the main nego- tiating table. The caucus brought together at least two women from each of nine impacted areas, along with the provincial government’s women’s officer and female facilitators. A side workshop held over several days included in- formation sessions from mine staff and independent experts about the overall mining operation, environmental impacts, and the benefit envelope. Wainetti, the facilitators, and the mine outreach team also visited women in mine- affected villages, exchanging views and developing a shared negotiating posi- tion. As one facilitator put it, “they [the women’s caucus] were great because they were great leaders, great negotiators, not just because they were women.” 18 Launched in 2003, the Women in Mining and Petroleum project (funded by the World Bank– managed Japan Social Development Fund) has included the drafting of women in mining action plans for affected communities, three national conferences leading to a cabinet- endorsed five-year national action plan, and capacity building (including in basic literacy, numeracy, and economic development skills) to allow women to manage and benefit from the resources that accrue as a result of extractives industries. “We Want What the Ok Tedi Women Have!” 241 Initially, the women’s key proposal was that a minimum of 5 percent of all funds be specifically set aside (that is, ring-fenced) for the benefit of women and children. Wainetti described how women “wanted a separate pot to make sure that women and kids were not forgotten as usual.” The proposal was not intended to exclude women from the remainder of the benefits, nor was it intended to be a maximum amount that women would receive—rather, it was to be a separate minimum amount prioritized for specific initiatives for women and children. Drawing on personal relationships and networks, the women’s caucus approached influential players out of session to seek their support for the proposal. One such participant was Sir Arnold Amet, a well- respected statesman. He was supportive, and suggested that they raise the figure. The delegation also secured the support of the mine’s senior manage- ment. The figure of 10 percent was ultimately chosen on the basis that the male beneficiaries would be unlikely to accept more and that 10 percent might fly “under the radar” at the negotiating table. In tabling the proposal at the main negotiating session, the women’s del- egate emphasized the complementary roles of women and men in the com- munity and stressed that “we are not asking for much, only 10 percent.” Following a silence, Amet spoke in support of the proposal, followed by the mining company representative. One facilitator described how “the back- ing of prestigious people was critical to the proposal being supported in the room.” No questions or concerns were raised, and the proposal was adopted unanimously. The women secured additional provisions on an ad hoc basis throughout the negotiation, including • Cash compensation payments deposited into family bank accounts, to which women were encouraged by the mine to be signatories. (Previously, cash was transferred to clan accounts, which were controlled by men and subject to persistent concerns regarding misuse and leakage.) • Fifty percent of all educational scholarships awarded to women and girls, and women would make up half of the membership of the scholarship selection panels. • Women represented in the CMCA’s key local governance bodies, village planning committees.19 Each committee would include two women repre- sentatives out of the five members (or three women representatives out of a maximum of eight members). • Women represented on each of nine regional trusts and on the board of directors of the Ok Tedi Fly River Development Program, the foundation responsible for the agreement’s implementation. 19 Village planning committees engage in a participatory process to identify, plan, and allocate village-level CMCA projects. Committee members are elected every three years in a process supervised by the foundation. The World Bank Legal Review242 To address what was seen by communities as poor implementation up to that point, key tenets of the 2007 agreement were new structures to ensure “a high level of ownership and decision-making power over resources, pro- grams, and projects” by impacted communities. The agreement provides more explicit entitlements for women than any other mining agreement in PNG or, as far as can be discerned, globally. It thus represents an innovation in efforts to empower women to exercise agen- cy over natural resources. However, the deal alone is not necessarily a suc- cess for women. Ring-fencing can be seen as “both a victory for women and a failure.”20 On the one hand, it promises to improve the status of women by of- fering control over a specific allocation of funds. Indeed, effects could be even greater if the women taking up decision-making roles over the ring-fenced funds are able to generate positive spillover effects for women in other areas, such as stronger household decision making, greater participation in political life, and economic empowerment.21 On the other hand, it is hard to argue on its face that control of 10 percent of all benefits for more than two-thirds of the population (once children are included) is fair. Further, if ring-fencing en- trenches norms that women are somehow undeserving of equal participation and equal benefit sharing and excludes women from the remaining 90 percent of benefits, then its effectiveness should be questioned. Some of these issues can be addressed only in the context of implementation. Implementation of the Agreement The novelty of the deal secured for women in the 2007 agreement raised high expectations; experience during implementation has been mixed. Informed Awareness of the Women’s Deal Is Low Research reveals that in many villages, a wide cross-section of women and men had heard about “the women’s 10 percent,” but no beneficiaries were able to explain how much money was available, the process by which projects were selected, or what had been approved to date. Several women complained that they have not received guidance or training on how to access the benefits. “How do we get the money? . . . It is very hard. . . . Since the launching, no- body knows what has happened with the 10 percent. There are no courses on how to apply for the money. Mothers are in a complete blackout.” More posi- tively, male residents did not express any resentment or complaints about the women’s 10 percent other than a critique that the women weren’t using their 20 See B. Sharp, Renegotiating a Papua New Guinea Compensation Agreement: Applying an Informed Consensus Approach, 69 Resource Management in the Asia Pacific, Working Paper No. 69 (2008). 21 See, for example, the impact of reserved seats for women in Indian village councils on at- titudes toward women, investment priorities, and reporting of crimes against women. For a summary of the results and links to the literature, see http://blogs.worldbank.org/impact evaluations/when-women-are-in-charge. http://blogs.worldbank.org/impactevaluations/when-women-are-in-charge http://blogs.worldbank.org/impactevaluations/when-women-are-in-charge “We Want What the Ok Tedi Women Have!” 243 money. This may suggest a “normalization” of women having control over some portion of resources. This lack of understanding of the women’s 10 percent echoes broader con- fusion among communities about the CMCAs in general, mipela no clia (“We don’t understand/we’re not clear”) being the most common refrain when asked about the agreement. Few people (beyond those serving on the village planning committees), could explain the process for CMCA project approval. Even members of the committees did not appear to understand how much money was available for CMCA projects in their village or region. Benefi- ciaries repeatedly expressed a desire for written information—“in black and white”—to dispel misinformation, build awareness, and foster accountability. Representatives of the foundation note the information problem but state that “we can’t get information to 90,000 people”: indeed, the geographical challenges are considerable. The foundation relies on village planning com- mittee chairs to be conduits to the rest of their committee and the village at large. Minutes of meetings, notices, and verbal updates are sent to the chairs for dissemination. One mine representative explained low levels of beneficiary awareness as a function of community “backwardness,” perhaps reflecting an assumption that communities with little exposure to sophisticated finan- cial topics are not able to understand the arrangements. This conclusion—that awareness is inherently and permanently constrained by the exotic novelty of trust funds and financial flows—is not uncommon on the part of community development technocrats and resource company staff. But global experience shows that targeted and skillful discussions at the community level can indeed empower village people to understand and engage effectively quite quickly. The Ring-Fenced Women’s Fund Is Operational, but Impacts Are Not Widely Felt In accordance with the agreement, a separate process was established to make decisions about the women’s ring-fenced benefits, governed by all-women groups elected by women from the beneficiary villages. From 2007 to 2010, K69.8 million (US$34 million) was set aside for the women and children’s fund.22 As of 2012, the major spending decision was to invest in three learn- ing centers. This decision is in line with the intent of the CMCA, which fore- shadowed initial investments in capacity building to allow women to actively engage in development processes—including the informed use of their funds. One learning center is open, and construction of the remaining two centers is yet to commence. Of the money that has been allocated, it is likely that much of it remains unspent. In one region (covering 18 villages), approximately US$20 million of general funds (that is, not the 10 percent women and children’s fund) remained unspent as of September 2011, and figures show up to half 22 This comprises K21.2 million from OTML, K8.6 million from the PNGSDP, and K40 million from the state. The payment from OTML has been made regularly, and PNGSDP funds have been forthcoming for women’s projects. State funding has been more difficult to access. The World Bank Legal Review244 of individual village funds have not been spent. One trustee attributed the underspending to the failure of villagers to submit project proposals. Under- spending seems unlikely to be a consequence of lack of need for community improvements in the face of basic service failures and profound development challenges. A targeted effort to improve, simplify, and streamline the proposal process could yield results. In the villages, however, very few women have heard of the training centers, and neither women nor men report feeling any benefits from the 10 percent deal. Women in the villages often express concern that they are not being faithfully represented in the women’s bodies to decide on use of the 10 percent. Many of the women in these groups are the wives of local ward councilors or village planning committee chairmen, suggesting that elite divides may compound existing gender inequality. In one village, women complained that their representative on the regional women’s group had moved and was no longer resident in the village and did not provide feedback from meetings. Such an impression is reflected more broadly in the function- ing of village planning committees, which appear beset by challenges related to information, coordination, and representation. Communities report that committees do not faithfully represent community interests, “hoarding infor- mation and keeping benefits” for personal or family gain. Committee chairs are frequently reported to no longer reside in the village they represent (hav- ing moved into towns), limiting their ability to identify community needs, convey information, and be held accountable for decisions made. Family Bank Accounts Show Promise The introduction of family bank accounts for disbursing the cash compen- sation component of the agreement appears to be having a positive impact, improving access to resources by both women and youth.23 Unlike with the project component, there is general understanding of the entitlements and the timing of the payments, including among women and youth. In most of the villages visited for this research, male and female beneficiaries reported that women are cosignatories to bank accounts.24 Women reported much greater access to money than under the previous system of clan accounts. They also claim to spend more productively than men, though this has not been inde- pendently verified. Some youth also reported receiving their entitlements in cash from their parents. 23 The compensation amount varies per village but is in the order of K400 (US$200) per person per year, including for children. 24 The exception to this was reported by communities in and around Ningerum. Prior to 2007, most families did not have bank accounts, so the mine and foundation undertook a process to provide bank accounts through two operators, BSP and PNG Microcredit. Bank repre- sentatives traveled to each of the CMCA villages with the requisite paperwork and opened accounts for most families. The mine and foundation encouraged male and female cosigna- tories to the accounts. “We Want What the Ok Tedi Women Have!” 245 Even so, villagers face high transaction costs in accessing the cash com- pensation. As in many parts of PNG, access to banking facilities in the CMCA area is extremely limited. Beneficiaries must travel to one of three bank loca- tions, and travel costs are high. In one example, the cost of return boat-and- bus travel from Atkamba village, on the lower Ok Tedi, to the nearest branch in Kiunga is K120 (US$57). For two parents (as account cosignatories) to ac- cess funds for a family of five, the cost of transport alone would be more than 15 percent of the annual compensation payment. Initial plans to provide bank- ing in boats along the river were shelved due to security concerns of traveling with large amounts of cash. Mobile phone-facilitated payments have yet to reach the CMCA area, although the rollout of mobile towers offers promise in this regard. Family bank accounts appear not to have increased family savings. The foundation, mine, and villagers report that beneficiaries routinely withdraw the annual cash compensation amount in full. Monthly account-keeping fees of K7 (US$3.40) reduce the incentive for families to save money through the banking system. The full withdrawal of funds also poses administrative bur- dens because this action automatically closes the account, which needs to be reopened to receive the following year’s payment. Implementation of the Scholarship Scheme Has Been Partially Successful The implementation of the scholarship program has occurred in accordance with the CMCA. Women currently make up half of the members on the scholar- ship selection panel. However, the selection process requires little discretion— in practice, supply exceeds demand and the money set aside for scholarships each year exceeds the money demanded from all applicants.25 The selection panel simply identifies whether an applicant is from a CMCA village. Schol- arships have been awarded for primary, secondary, and tertiary education in PNG. Full scholarships are awarded to younger students; for older students, the amount is dependent on the student’s scholastic achievement the previous year. This rubric is widely understood by beneficiaries and supported. In practice, fewer than 50 percent of the scholarships are awarded to girls because fewer girls apply. Boys are often preferred for educational opportuni- ties, because a girl’s productive capacity and eventual bride price payment regularly factor into the decision on whether to send her long-distance for formal education.26 Furthermore, few schools have boarding facilities, and parents have expressed a reluctance to send young girls to stay with relatives for long periods in light of security and financial concerns. 25 For example, according to personal communications from the foundation, the Highway (Tutuwe Trust) has allocated from K1 million to K1.5 million per year; Ok Tedi region (Waitri Trust), K500,000; and Nupmo Trust (Ningerum), K200,000 per year. 26 Thanks to a peer reviewer for these insights. The World Bank Legal Review246 More broadly, villagers expressed concern about the lack of economic op- portunities in the region for scholarship recipients (and others) after gradua- tion. Few graduates return to the CMCA area, raising concern for future local economic development. Decision-Making Structures Do Not Reflect the Levels of Women’s Representation Mandated by the Agreement In all the villages visited for this research, the village planning committee included only one woman, rather than the two or three required under the agreement. In most cases, the women’s representative is the wife or a family member of a ward councilor, village planning committee chairman, or other elite male. No committee chairs were women. In the villages visited, few women reported being aware of what the village planning committee does and few women participate in planning for CMCA village projects. Three women have not been appointed to the board of the overarching foundation as required by the agreement. Indeed, there are no voting ben- eficiary representatives—male or female—on the board. The overarching foundation continues to be controlled by the mine, which continues to hold 75 percent of the foundation’s shares. The mine is assisting the impacted communities to set up an association (Ok Tedi Mine Impact Area Association) that could then take a shareholding in the foundation. The mine reports that it has taken longer than planned to build the capacity of the association and its members, and the foundation is working with the executive of the association to achieve this. Yet, two out of four seats on the foundation’s board are re- served for mine company representatives, and the mine’s managing director chairs the board. Furthermore, the CMCA requirement for the mine to transfer equity in the mine to the foundation (for the benefit of the impacted communi- ties) has not occurred. These missed opportunities mean that the foundation has not yet been able to make the transition to a “high level of community ownership,” as called for in the agreement. Lack of Community Ownership Affects Development Outcomes The failure to transfer ownership and control to beneficiaries affects the de- velopment approach adopted by the foundation and ultimately development outcomes. There is a sharp divergence between the views of those implement- ing the agreement (primarily mine and foundation representatives) and the beneficiaries (the villagers) regarding the success of implementation. This is perhaps not surprising, not least because it is difficult for the foundation to visit every village frequently.27 Implementation could benefit from a structured mechanism through which valuable information about community needs, implementation challenges, and grievances—direct from beneficiaries—is fed back to the foundation to facilitate continuous improvement. The reliance on 27 The service standard for 2011 was one visit to each village each year; for 2012, it was an over- night stay. “We Want What the Ok Tedi Women Have!” 247 village planning committee representatives overlooks intracommunity equity issues that often arise in community development. It is hard for mining companies to “do” community driven development. The ethos of mining companies tends to be technocratic, linear, output focused, grounded in the scientific method, and focused on engineering solutions in often-difficult physical environments. Community development, on the other hand, routinely revolves around political dynamics, privileging process as much as outcomes and balancing competing interests and versions of the truth. Although the forms for inclusive community development have been put in place by the agreement, their function currently falls short of community- driven development. This observation is exemplified in Moian village, where the mine arrived to install a water pump. Mine technicians selected a site easily accessible from the village health clinic, but 15–20 meters away from the village’s custom- ary burial grounds. Residents expressed concern that the site was too close to their burial site and suggested an alternative location for the well farther away from the village, with a pipe to bring the water in. The technicians explained to the villagers that this would be more costly and the pipe would be likely to break—thus limiting the villagers’ access to water. They built the pump in the originally proposed location, which was a logical technical choice. The villag- ers do not use the well, which is an equally logical sociocultural choice. The result is an unsatisfying development outcome. The foundation is taking some steps to improve the participation of vil- lagers in project implementation. A skills census has been undertaken in each village to identify resident capacity to assist with projects. However, a focus on local labor is unlikely to result in greater community empowerment in the absence of specific actions that embed community ownership and control. The lack of community ownership is also demonstrated by another situation in Moian village, where neatly erected house poles dot the village. The poles were erected as part of a housing scheme decided on for all villages in the Middle Fly area. Each village received poles (cemented into place) and zinc roofing to connect to water tanks (delivered to the villages). The villages were asked to supply “local content” in the form of bush material for the floors and walls of houses. In addition to the poles and roofing, Moian also received a saw for villagers to cut the bush material. The saw reportedly broke. Land- owners were unwilling to allow a broader group of villagers to cut trees for timber. The sets of poles remain unused, as does most of the zinc. Lopsided tanks dot the village collecting stagnant water. The Broader Impacts of the Deal Have Not Yet Accrued The strong leadership demonstrated by women during the early negotiation phase has not been present in the implementation phase. After a change in women’s leadership, there is no identifiable cadre of women who demonstrate a similar rigor and collective agency in implementation—a challenge given the dispersed nature of the population and poor communication. There are The World Bank Legal Review248 a few positive spillovers for women from the CMCAs, with representatives of the mine and foundation reporting increased attendance and assertiveness of women in community consultations. However, village women report few changes in their own material circumstances, and there are few, if any, signs of greater entrepreneurship, participation in broader political life, or increased bargaining power for women. The anticipated empowerment gains appear not to have accrued. This lack of spillovers is reflected in overall implementation of the agree- ment. Since the original agreements were reached in 2001, more than K1 bil- lion (almost US$500 million at today’s rates) has accrued to CMCA communi- ties (with another K1 billion to the six villages immediately surrounding the mine site).28 Regional coordinators for the foundation report being “treated like the MP” given the amounts of money they oversee.29 Despite the signifi- cant financial flows associated with the mine, there are few visible projects in CMCA villages, basic infrastructure and service delivery are severely limited, rates of poverty are high, and health and education indicators are poor—with women tending to be worse off than men.30 Some reasons for the lack of de- velopment include slow rollout of the foundation and underspending, intra- village divisions, poor village-level decision making, and elite capture. There are, however, very few observable projects funded from other sources, such as local government or from MP-controlled constituency development funds. The topographical and institutional landscape makes this an extremely chal- lenging development context. The largely parallel CMCA governance struc- tures are not linked to government: village planning committees do not coor- dinate with ward development committees, and relations between the mine, the foundation, the PNGSDP, and the provincial government are a topic of continuing concern.31 Looking Ahead: Guidance for Strengthening Women’s Engagement in Mining Agreements The PNG government is considering changes to policy and law to apply the basic tenets of the Ok Tedi Agreements to mining contexts across PNG. From the government’s perspective, the agreement is an innovation worth model- ing. Such policy reform is widely popular among women in other impacted communities, even though the details and shortcomings of the Ok Tedi deal 28 Over the next two years of the mine’s current phase, another K292 million is projected to be received, and further extension of the mine’s life is being considered. 29 As chair of a joint district planning and budget priorities committee for each constituency, MPs have significant control over sizable resources (K6 million in 2008; K4 million in 2009), which provides the potential for strong visibility and influence of MPs at the village level. 30 2007 CMCA Census Report Appendix: Basic Statistical Tables. See also D. Cammack, Chronic Poverty in Papua New Guinea (Chronic Poverty Research Center 2009). 31 There are efforts to address this through a project matrix that captures all the government, foundation, and PNGSDP projects to guide decisions on implementation and funding. “We Want What the Ok Tedi Women Have!” 249 are not well understood. Acknowledging the unique history and context of the mine, the CMCA process provides insights for other PNG resource projects as well as for stakeholders in other resource-rich countries that have “wealth” in the form of resources but suffer regular elite capture of rents, severe gender inequality, collective action problems, and chronic development challenges. With a view to informing future policy and practice in both PNG and else- where and to improving empowerment outcomes for women, the following broad guidance is provided to mining and gender practitioners engaging in these kinds of deals. Guidance for the Negotiation Phase of Mining Agreements • Mine operators can be powerful allies for women vis-à-vis male benefi- ciaries if the business case for women’s inclusion is made.32 In mining areas, stronger roles for women—including as mine employees—may be associ- ated with reduced risk of conflict and increased stability of production. Women should focus on highlighting how their participation increases efficiency in the use of funds and fosters opportunities to generate posi- tive development outcomes while also reducing the risks of complaint, conflict, and disruption of production. • The characteristics of the individual women who participate in negotia- tions can make a real difference to the negotiated outcome. Representatives who combine both local ties with national or international skills and experience can be particularly effective. • Separate caucusing sessions for women, alongside the primary negotiating stream, allow information to be shared, capacity to be built, and negotiat- ing strategy to be developed. • Independent facilitators and advisers (environmental, legal, financial) help overcome asymmetries of information and power, build trust, and ulti- mately construct more equitable and thus durable deals. This is of benefit for all stakeholders, but a transparent, open, and informed process also provides space for capable women. The PNG Mineral Resources Author- ity has an officer (who was involved in the CMCA negotiations) who now advises women in negotiation processes across the country. Although this is a step forward, it cannot be the only mechanism, because the state is also a party to these agreements and thus faces possible conflicts of inter- est. Similar tensions can arise for staff of mine gender desks, thus high- lighting the importance of independent advice in improving negotiated outcomes. • A complex web of benefit streams undermines accountability, making it diffi- cult for beneficiaries to understand their entitlements and know who is responsible for delivering what, let alone demanding performance if it 32 Why Gender Matters: A Resource Guide for Integrating Gender Considerations into Communi- ties Work at Rio Tinto (Rio Tinto 2010), available at http://www.riotinto.com/documents /ReportsPublications/Rio_Tinto_gender_guide.pdf (accessed Feb. 28 2012). http://www.riotinto.com/documents/ReportsPublications/Rio_Tinto_gender_guide.pdf http://www.riotinto.com/documents/ReportsPublications/Rio_Tinto_gender_guide.pdf The World Bank Legal Review250 is not delivered. Complexity provides space for a small elite to exploit community benefits for personal gain; over time, confusion and capture can breed tension and conflict. It is better to deliver resources through a small number of channels that are easy for beneficiaries to understand and transparent in their delivery. This also enhances accountability while minimizing administrative overheads. Guidance for the Implementation of Mining Agreements • Family bank accounts (with women as cosignatories) enhance women’s control of cash compensation payments. Mobile banking could further enhance ac- cessibility of funds in remote areas and strengthen women’s control over funds. Opportunities exist to incentivize savings, for instance, by lowering account-keeping fees, providing returns on investments, and instituting a “bonus” compensation payment or matching grant to accounts that retain an operating balance. In countries like PNG that have an increasingly in- terested banking sector keen to exploit rapidly increasing teledensity and a regulator focused on financial inclusion (the PNG Central Bank), the potential for pilot programs that address the constraints outlined here is significant. • Setting aside scholarships for girls, and having women on scholarship selection panels, may not be enough to overcome cultural and logistical barriers. Further incentives could be built in to enhance gender equality of ed- ucational opportunities, such as a requirement that boys’ scholarships are conditional on a matching number of girls’ scholarships, and supplemen- tary financing for special provisions for girls’ safety and security while attending school away from home. • Public written information reinforces accountability, even in communities with low literacy. Basic information about benefit procedures, amounts, dates, and feedback/grievance channels should be posted in public places, such as community halls, health clinics, schools, and churches, and posters and pamphlets should be distributed widely, summarizing information in lay terms. Mobile phones can also be used to convey information. • The responsiveness and accountability of village representatives to ben- eficiary communities are undermined when representatives do not live in the village—often moving away using the fruits of their newfound status. Consideration should be given to instituting a residency requirement for vil- lage representatives in the village they represent. • Structured feedback and grievance processes increase accountability and ensure that those responsible for project implementation have better information on activity performance and challenges and increase accountability. These procedures should allow beneficiaries to bypass their local representatives, who may be the subject of complaints, and to register mobile numbers to receive periodic texts asking for feedback on local issues. “We Want What the Ok Tedi Women Have!” 251 Conclusion The 2006–07 Ok Tedi negotiation process and the resulting CMCA agreements are innovative in that they secured enhanced rights for women in legally en- forceable mining agreements, even in the context of severe gender inequality. However, legal rights are not sufficient in and of themselves to produce bet- ter development outcomes. Implementation has faced many of the challenges facing other development efforts in PNG: logistical constraints, low adminis- trative capacity, and elite capture. Nevertheless, the prevailing gender asset gaps in the context of the current global extractives boom highlight the need to engage women more proactively in mining agreements and support them in exercising greater agency over those resources. More attention to the princi- ples and experiences of community-driven development, as well as more local political analysis, will likely benefit women’s engagement and outcomes. The particular guidance for enhancing women’s agency—in both the negotiation and the implementation phases—laid out above offers further opportunities to promote women’s equality and, through this, to achieve better develop- ment outcomes. 253 Innovation in Asset Recovery The Swiss Perspective Rita adam Recent international studies have strikingly illustrated the enormous chal- lenges that corruption and similar crimes pose to developing and emerging economies. The World Bank has played a vital role in bringing these prob- lems to light. According to World Bank estimates, developing countries lose between US$20 billion and US$40 billion each year through bribery, misap- propriation of funds, and other corrupt practices. This amount represents 20 percent to 40 percent of the total international development aid received by these countries. Against this backdrop, the importance of efficiently recov- ering assets illicitly acquired by politically exposed persons (PEP) has been increasingly recognized. Over the course of 25 years, Switzerland has become a world leader in the field of recovery of illegal assets held by former heads of state and other PEP. The expansion of expertise in and commitment to asset recovery issues was prompted by the events that followed the overthrow of Philippine dictator Ferdinand Marcos in 1986. The Swiss government reacted to the news within hours by invoking emergency constitutional powers to freeze all assets held by members of the Marcos regime with Swiss financial intermediaries. This immediate and determined action laid the foundation for the subsequent res- titution, via official mutual assistance channels, of more than US$600 million to the new and democratically elected Philippine authorities. In Switzerland today, there is broad political consensus about determined and proactive action on the part of the authorities against illicit assets held by former heads of state and other PEPs. Switzerland has no interest in its finan- cial sector being abused to conceal assets of dubious provenance that should be used to benefit local populations in the form of state-run programs and projects. Questions of reputation and integrity have become key factors in the global competition among financial centers. Switzerland has proven its com- mitment to tackling the underlying problems not only by its active participa- tion in international initiatives but also in the number of cases that have been resolved worldwide. Over the past 25 years, Switzerland has returned to their countries of origin a total of US$1.7 billion in assets acquired unlawfully by PEPs. The World Bank puts the total value of PEP assets returned during the same time period at US$4–5 billion. As the world’s seventh-largest financial center, Switzerland is thus well ahead of other countries in terms of the resti- tution of unlawfully acquired assets. The Swiss authorities have acquired a great deal of experience in the restitution of PEP assets since 1986. One of the main lessons learned is the The World Bank Legal Review254 importance of creativity and innovation in resolving cases successfully. No two asset recovery cases are exactly alike. As the example of the former Ni- gerian head of state Sani Abacha underscores—at US$800 million, the largest sum of money ever returned worldwide—such cases are extremely complex because a large number of banks, countries, and third parties are usually in- volved. Because mutual legal assistance (MLA) procedures often stretch over periods of many years, the interaction between internal and international in- struments in each specific case is of the utmost importance. Following a brief general overview of the Swiss legal framework for asset recovery, this chapter highlights two specific areas that have seen considerable progress and developments in recent years. First, the chapter addresses the creation of new legal provisions tailored specifically to cases in which the state structures in the country of origin are so weak that the restitution of unlaw- fully acquired assets by international MLA channels is impossible. Second, the chapter turns to the Arab Spring and Switzerland’s initial findings on implica- tions for asset recovery. Overview of the Swiss Institutional and Legal Framework to Combat and Return Assets Illicitly Acquired by PEP Switzerland has a comprehensive range of legal instruments and measures in place for turning away assets of criminal origin and for identifying, blocking, and returning them if they nonetheless find their way into the local financial center. Swiss banking secrecy law does not apply to assets of criminal origin and therefore does not impede existing protective and preventive measures in any way.1 The Swiss legal framework rests on five pillars comparable to the provi- sions familiar in many other states. The various elements are outlined below. Prevention of Corruption The first pillar aims to prevent high-ranking foreign officials from illegally en- riching themselves in the first place. Promoting good governance and tackling the root causes of corruption rate highly in Switzerland’s foreign policy. In its development cooperation, Switzerland gives priority to combining measures at the governmental level through institutional reforms and activities involv- ing civil society, such as awareness raising, participative approaches, social audits, and investigative journalism. Due Diligence/Know Your Customer Another pillar is due diligence; Switzerland takes the necessary measures to prevent illicit assets of PEPs from being transferred to Switzerland or laun- 1 For more information, see http://www.eda.admin.ch/eda/en/home/topics/finec/intcr /poexp.html. http://www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp.html http://www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp.html Innovation in Asset Recovery 255 dered via the Swiss banking system and thus being brought into legal eco- nomic circulation. Switzerland does not want to function as a safe haven for illicit assets of PEPs. Stringent “know your customer” rules oblige providers of financial services in Switzerland to identify their clients and ascertain the origin of their assets. To comply with these rules, financial intermediaries are required to identify the beneficial owner of assets. When dealing with PEPs, Switzerland’s legislation also stipulates, in conformity with internationally recognized standards, special clarification requirements (enhanced due dili- gence) and requires that business relations with PEPs be considered as involv- ing increased risks. Obligation to Report All financial intermediaries operating in Switzerland are subject to a legal reporting obligation if they become aware, or have reasonable grounds to suspect, that the assets involved in a given business relationship are, or may be, associated with money laundering or terrorism financing, originate from criminal activities, or are connected with a criminal organization. In such cases, financial intermediaries are required to block assets immediately and to notify the Swiss financial intelligence unit, the Money Laundering Reporting Office Switzerland (MROS), without delay. If there is reason to believe that this may be a case of corruption, MROS will alert the criminal prosecution au- thorities, who will conduct a preliminary inquiry into the origin of the assets. If suspicions persist, the competent authorities will initiate criminal proceed- ings for money laundering. International Mutual Legal Assistance Under international standards, the unlawful acquisition of the assets in ques- tion must be proven in judicial proceedings before they can be returned. Inter- national MLA in criminal matters is a central instrument in this examination. The Swiss Federal Act on International Mutual Assistance in Criminal Matters entered into effect on January 1, 1983. It empowers Switzerland to grant legal assistance to countries with which it has not concluded a bilateral agreement. Swiss authorities take care, wherever possible, to apply the provi- sions of the law with the flexibility needed to respond to the specific circum- stances of individual asset recovery cases and to develop creative approaches to resolving them. This approach makes it possible to actively support states that have encountered difficulties in their recovery efforts. This support may be necessary when the state in question is unable to provide all the evidence required or to comply with the formalities necessary in the context of MLA. In such cases, Switzerland can help the state complete the request for interna- tional MLA and might even pay for the translation of such a request so that it can be submitted to the competent Swiss authorities in one of the national languages, as required by the act. In some cases, Switzerland has exception- ally paid lawyers’ fees to enable requesting states to benefit from counseling, thus increasing their chances of recovering embezzled funds. The World Bank Legal Review256 In parallel with the establishment of international MLA where there are sufficient suspicions to justify it, Swiss authorities will instigate criminal in- vestigations into money laundering, organized crime, or similar offenses. The primary channel for any restitution of assets nonetheless remains the interna- tional MLA process, in combination with the associated criminal proceedings in the state of origin, because it is there that the evidence can generally be found that will determine whether the assets were acquired as the result of a criminal act. If the unlawful origin of the assets is evident, Switzerland may under certain conditions return the assets without any legally enforceable forfeiture order from the state concerned, as in the Abacha case, mentioned above. Restitution Switzerland has made it a priority to return unlawfully acquired PEP assets rapidly and in full to their country of origin. As soon as it is established that assets located and frozen in Switzerland originate from a criminal act, authori- ties will determine which form of restitution best takes into account the cir- cumstances of the individual case. Experience over 25 years shows that there is no one-size-fits-all solution. Hence, Switzerland finds an ad hoc solution to ensure that the assets in question will indeed benefit the population of the country of origin. Furthermore, restitution can be a delicate matter if corrup- tion is endemic in the country of origin of the assets. In such cases, finding a way to ensure that the assets in question will not simply be recycled into criminal activities is crucial. Possible approaches in such cases include setting up an independent monitoring mechanism, returning assets via an interna- tional organization that runs projects and programs in the country of origin, or cooperation with NGOs. In the Sharing Act (the Federal Act Pertaining to the Sharing of Confis- cated Assets), Switzerland has a legal foundation on which it can enter into international asset-sharing agreements in cases of organized crime and money laundering. The act provides for the waiver of any share of assets forfeited in Switzerland so that the entire amount is repaid to the country of origin. It is a standing policy of Switzerland to return in their entirety to the state concerned any confiscated illicit assets of PEPs originating from bribery or misappropria- tion of funds, without insisting on asset sharing. Lessons Learned from the Mobutu and Duvalier Cases The Federal Act on the Restitution of Assets of Politically Exposed Persons Obtained by Unlawful Means (Restitution of Illicit Assets Act, or RIAA) is a significant enhancement to Switzerland’s legal arsenal in the field of asset recovery.2 The RIAA, in force since 2011, contains legal provisions tailored 2 See http://www.admin.ch/ch/e/rs/c196_1.html; for more information, see also http:// www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp/faqria.html. http://www.admin.ch/ch/e/rs/c196_1.html http://www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp/faqria.html http://www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp/faqria.html Innovation in Asset Recovery 257 specifically to cases in which the state structures in the country of origin are so weak that the restitution of kleptocrat funds via international MLA channels faces insurmountable barriers. The drafting of the act was prompted basically by Switzerland’s experiences in the cases of Mobutu (the Democratic Republic of the Congo, DRC) and Duvalier (Haiti). In the first case, the Swiss government made use of its emergency powers anchored in the Swiss Federal Constitution to freeze any Mobutu assets locat- ed in Switzerland immediately after the fall of the dictator in 1997.3 In doing so, the Federal Council intended to make it possible for the new government, headed by Laurent Kabila, to submit a request for international MLA within the necessary time frame. Unfortunately, due to the inactivity of the Congo- lese authorities, who failed to supply the information required and to initiate proceedings against Mobutu, the first international MLA procedure had to be stopped in 2003. The Federal Council, confronted with the imminent risk that the frozen assets would become available again to the members of the Mobutu family, felt it was necessary to act. Indeed, in view of Mobutu’s universally acknowledged kleptocracy, the return of this money to the Mobutu family was as unacceptable to Switzerland as it was to the DRC. The Federal Council mandated the Swiss Federal Department of Foreign Affairs to make contact with the Congolese authorities in an effort to find a solution that would al- low restitution of the assets. This collaboration made it possible, after several years of negotiations, to obtain the agreement of the DRC authorities to al- low a Geneva lawyer, paid for by the Swiss Confederation, to begin criminal proceedings in an effort to recover these assets. A lawsuit filed in Switzerland against the Mobutu family on behalf of the DRC alleging the establishment of a criminal organization was not pursued by the Swiss Attorney General’s Office. It decided not to commence investigations because the statute of limi- tations on the alleged acts had already expired. Unfortunately, the Congolese government instructed its lawyer not to contest the decision of the Attorney General’s Office and, in doing so, destroyed all hope that the frozen assets would be returned to the Congolese people. Hence, the procedure was termi- nated, and Switzerland had no other choice but to unfreeze the Mobutu assets after twelve years of relentless efforts to avoid exactly that. Switzerland regards such an outcome as extremely unsatisfactory. It is all the more objectionable that a despot continues to profit from the result of his poor governance even after he has been overthrown—it is precisely his years or decades of dictatorship that weakened state structures to the point that ren- ders the new authorities incapable of successfully conducting MLA proceed- ings with a partner state. The result is that assets that are frozen in foreign fi- nancial centers, such as Switzerland, are ultimately unfrozen and placed back in the hands of the overthrown dictator. 3 See discussion in the section of this chapter entitled “The Arab Spring and Its Implications for Asset Recovery.” The World Bank Legal Review258 It seemed that the Duvalier case would have a similar outcome. Begin- ning in 1986, the Duvalier case went through a period involving MLA. Fol- lowing the difficulties of Haiti to sufficiently substantiate their MLA request, this procedure was terminated in 2002. Again, the Federal Council decided to intervene, given the manifestly illicit nature of the assets in question. After an asset freeze was ordered on the basis of Swiss constitutional powers, ne- gotiations for a settlement were conducted with the government of Haiti, and with the Duvalier family, but without results until 2007. President René Préval indicated his desire to combat the impunity of the Duvalier family and to take possession of the assets with the help of another MLA procedure, which made its way to the Swiss Federal Supreme Court. In early 2010, the court ruled that restitution in accordance with current Swiss law was no longer possible due to the statute of limitations. At the same time, however, the court confirmed that the assets were of illicit origin. While regretting the need to apply the statute of limitations, the court expressed its view that the conditions imposed by the Federal Act on International Mutual Assistance in Criminal Matters “seem too strict for this type of affair.” In making this observation, the court invited Swiss lawmakers to take into consideration the nature of fragile states and to try to increase their chances of benefiting from the restitution of assets. Fortunately the authorities—prompted by experience gained in the Mobutu case—had already embarked on the corresponding legislative work. In an ef- fort to safeguard the Duvalier assets, the government decided to freeze them while awaiting completion of the parliamentary procedure. Work on new draft legislation was driven forward with the highest priority. The Federal Act on the Restitution of Assets of Politically Exposed Persons Obtained by Unlawful Means (Restitution of Illicit Assets Act, RIAA) entered into force in February 2011, just one year after the Supreme Court’s ruling. It makes Switzerland the first nation in the world to have a law enabling the state to overcome the difficulties involved when dealing with another state that is no longer able to meet the requirements of an MLA procedure due to the collapse of all or a substantial part of its judicial apparatus or judicial dysfunction. The RIAA’s innovative approach attracted worldwide attention. Stuart Levey, the former undersecretary for terrorism and financial intelligence at the US Department of the Treasury, described the RIAA as “arguably the world’s toughest law for repatriating the ill-gotten gains of corrupt politicians.”4 The RIAA came into existence as a result of the difficulties encountered by the Swiss authorities in returning assets frozen in Switzerland to such states following the failure of the international MLA process to produce a satisfac- tory result. The aim of the act is to prevent such situations from recurring and to resolve cases of assets that have been frozen on the orders of the Federal Council’s constitutional powers. The RIAA is a subsidiary solution to the Fed- eral Act on International Mutual Assistance in Criminal Matters. In contrast 4 See Stuart Levey, Fighting Corruption after the Arab Spring, Foreign Affairs (online edition, June 16, 2011), http://www.foreignaffairs.com/articles/67895/stuart-levey/corruption -and-the-arab-spring. http://www.foreignaffairs.com/articles/67895/stuart-levey/corruption-and-the-arab-spring http://www.foreignaffairs.com/articles/67895/stuart-levey/corruption-and-the-arab-spring Innovation in Asset Recovery 259 to criminal law, the RIAA makes the distinction between the conduct of PEPs and the unlawful origin of their assets. In this way, it provides for a different approach to the criminal prosecution of the PEP concerned and enables the forfeiture of assets that clearly have been obtained by unlawful means with- out the need for a criminal conviction against the PEP in question. There are three stages to the repatriation of misappropriated assets under the terms of the RIAA: • To prevent an outflow of suspicious assets, the Federal Council may, un- der the conditions outlined in the RIAA, take the first step of ordering that assets be frozen to secure them. • This is followed by the forfeiture of the assets in proceedings under ad- ministrative law. Here, the state appears as plaintiff against the holder of the disputed assets. • Once a forfeiture ruling has attained legal effect, the assets are repatriated to their state of origin in a transparent process. A major innovation of the RIAA is the reversal of the burden of proof in re- spect to the unlawful origin of frozen PEP assets. With the Mobutu and Duva- lier cases in mind, the law provides for a reversal of the burden of proof with regard to the assets’ illicit origin. In other words, forfeiture is justified under the RIAA if the current owner of these assets is unable to prove that the assets are, in all probability, of lawful origin. This concept rests on the assumption that if a notoriously corrupt PEP or associates hold powers of disposal over an amount of assets that are out of proportion to the PEP’s official salary, these assets are, in all probability, unlawful in origin. The RIAA stipulates that the unlawful origin of assets may be presumed if both of the following two conditions are met: • The wealth of the person who has powers of disposal over the assets has been subject to an extraordinary increase during the PEP’s period of of- fice. This provision is intended to cover two cases: one in which PEPs hold powers of disposal, and one in which the person who holds powers of disposal is not the same person who exercised a public office but is one of their associates. An “extraordinary increase” means that there is a significant discrepancy between the income derived from the public office and that generated by the assets concerned that cannot be explained by normal empirical patterns and the country’s overall situation. A similar provision exists in the UN Convention against Corruption, which talks of a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income. Concrete evi- dence, to be introduced by the Swiss authorities as plaintiff, must prove that the concerned assets have increased extraordinarily over the relevant period. This would be true, for example, of a minister who became a mil- lionaire while in office, despite not previously having had any wealth. Another example is a person associated with a PEP whose construction or service company generated very high profits from public contracts in con- The World Bank Legal Review260 nection with the office in question. The extraordinary increase condition does not, however, apply to assets that have grown as a result of skilled portfolio management on the part of the bank with which the assets are lodged. • There is a notoriously high level of corruption of the state or PEP in ques- tion during the PEP’s period of office. Whether or not the level of cor- ruption is “notoriously high” is determined in a status analysis based on reports from organizations, such as the World Bank or Transparency International, that conduct research work and analyses on corruption is- sues. Typical cases include those of Suharto, Mobutu, and Duvalier. Dur- ing their periods in office, the level of corruption was recognized as high in respect to the persons themselves and the country as a whole. Criminal acts that are not necessarily classified as corruption under Swiss law but that constitute the improper conduct of a public official in other respects (for example, misappropriation of funds, embezzlement, or another un- lawful use of funds) must also be taken into account in this evaluation. The persons concerned can invalidate the presumption of unlawful origin of the assets by presenting a convincing case for their lawful enrichment. In other words, the presumption ceases to apply if it can be demonstrated that, in all probability, the assets were acquired by lawful means, specifically by presenting suitable evidence and explaining suspicious transactions. The Swiss authorities are confident that the innovative approach of the RIAA is a significant enhancement to the legal framework for asset recovery. The first case of application of the RIAA is pending: the planned forfeiture or- der for the Duvalier assets. The corresponding legal action was brought before the competent Federal Administrative Court by the Swiss authorities in April 2011, just two months after the RIAA went into effect. The Arab Spring and Its Implications for Asset Recovery General Remarks The upheavals in the Arab world in 2011 brought the discussion on the freez- ing and recovery of illicit assets attributed to PEPs to the forefront.5 In view of the historic dimension of the events taking place, the Swiss government decided to act very swiftly. Only a few days after the overthrow of presidents Zine el Abidine Ben Ali (Tunisia) and Hosni Mubarak (Egypt), the Federal Council invoked its emergency constitutional powers to make Switzerland the first country in the world to freeze all the assets held with its financial in- termediaries by Ben Ali, Mubarak, and their associates. The Federal Council’s aims were twofold. First, it wished to avoid the movement of any unlawfully acquired assets to other financial centers, thereby evading justice—at least in 5 For more information, see http://www.eda.admin.ch/eda/en/home/topics/finec/intcr /poexp/sperr.html. http://www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp/sperr.html http://www.eda.admin.ch/eda/en/home/topics/finec/intcr/poexp/sperr.html Innovation in Asset Recovery 261 the short term. Second, its swift action sent a clear signal to the states of origin that Switzerland was willing to accept requests for international MLA so that misappropriated assets could be returned in full as quickly as possible. There were soon signs that this signal had been understood. Just a few weeks after the freeze was imposed, Switzerland received the first requests for MLA from Tunisia and Egypt. A further unilateral freeze on the assets of Muammar Gad- dafi (Libya) and his associates was replaced by a regime of sanctions following the adoption of the corresponding UN sanctions in March 2011. In parallel with the efforts moving through international MLA channels, the Swiss crimi- nal prosecution authorities began their own investigations into associates of Ben Ali and Mubarak on suspicion of money laundering and membership in a criminal organization. The legal foundation for the preventive freezing of assets is given by a specific provision in the federal constitution. Article 184, paragraph 3, reads, “Where safeguarding the interests of the country so require, the Federal Coun- cil may issue ordinances and rulings. Ordinances must be of limited dura- tion.” The Swiss government has made use of this option in several excep- tional cases, starting with the Marcos funds in 1986, to freeze assets. This tactic is a Swiss specialty: no other country practices such “constitutional freezing.” Three months after the freezes with regard to Tunisia and Egypt were ordered, the government conducted an initial review of its action and decided to create a legal basis for the freezing of PEP assets for the purpose of securing them. This resolution represents a clear commitment to maintaining the practice de- veloped over more than 25 years, that is, that Switzerland is willing to freeze assets as a preventive step in extraordinary cases to prevent their flight else- where and to create the best possible conditions for successful international MLA proceedings for the state of origin. The planned legal basis is intended to set out the conditions for a freeze in greater detail and to determine the basic parameters for its implementation. As a next step following the RIAA, it will complete the Swiss legal framework on asset recovery. The successful restitution of unlawfully acquired assets via international MLA channels is a complex undertaking that demands political will, persis- tence, and creativity. Switzerland knows from experience that a close partner- ship between the requesting and the requested states is a key factor. Indeed, as the term “mutual” implies, MLA procedures cannot be successfully achieved by the requesting or the requested state alone. Furthermore, effective imple- mentation of existing norms can sometimes be challenging. MLA proceed- ings are by nature rather static. Hence, in order to successfully address asset recovery, one of the main questions is how best to make dynamic use of the legal framework. This means, for example, that requests for MLA that do not satisfy all the formal requirements are not simply returned without comment or even ignored by the requested state. It is preferable in such situations ac- tively to seek dialogue with the authorities of the requesting state to resolve possible problems such as those that might arise in connection with expert- level meetings. It can also be helpful for the requested state to make an expert in MLA and asset-tracing issues available to the authorities of the requesting The World Bank Legal Review262 state to provide targeted support and address any outstanding questions. To date, Switzerland’s experience with this approach—which was applied to the requests for international MLA from Tunisia and Egypt—has been positive. To take the Tunisian example, the local prosecutorial authorities are professional and competent, but they have handled few corruption cases in Tunisia, for ob- vious reasons. However, thanks to Switzerland’s providing an expert in MLA and asset tracing, by the end of 2011 the Tunisian authorities were able to sub- mit several formally complete requests for MLA to Switzerland. These were passed directly on to the Swiss judicial authorities for a substantive review. Possibilities for Future Action Complex asset recovery proceedings generally involve several jurisdictions. To resolve the issues that this causes, a close partnership between the request- ing and the requested state is required, as is intensive communication be- tween the various states to which requests for international MLA have been addressed when it is suspected that unlawfully acquired assets are being held within their financial sectors. Therefore, since 2001, the Lausanne Seminars have provided a forum in which experts from requesting and requested states, as well as those from international organizations (including the World Bank) are able, at Switzerland’s invitation, to discuss the practical problems of asset recovery. One year after the beginning of the Arab Spring, the purpose of the sixth edition of the seminar, held in January 2012, was to take stock of progress made and to identify challenges with a view to examining possibilities for fu- ture action. Centered on the experiences of requesting and requested states in the wake of the events in North Africa, representatives from Egypt, Libya, and Tunisia voiced their observations and concerns, followed by remarks from re- questing states and third actors, such as the World Bank, the UN Office on Drugs and Crime (UNODC), the European Commission, and the International Centre for Asset Recovery, and an in-depth discussion. While acknowledging the existence and possible added value of domestic criminal investigations con- ducted in requested states, participants agreed that international cooperation through MLA is the prime vehicle for achieving the recovery of such assets. They identified the following key actions for accelerating pending procedures: • Build and deepen effective MLA partnerships based on dialogue and trust between requesting and requested states through the following actions: • Strengthen trust and mutual understanding by developing personal contacts between the competent authorities and persons in charge in requesting and requested states. • Increase dialogue through institutionalized communication channels, for example, regular meetings between experts from both sides, to address issues directly and to ensure consistent follow-up to pending procedures. Innovation in Asset Recovery 263 • Ensure continuity with the competent authorities and persons in charge by avoiding “wandering files.” • Improve the quality of communication; for example, no MLA request remains unanswered. If not all formal requirements are met or other problems exist from the point of view of the requested state, the re- questing state is rapidly informed. • Deepen the partnership between requesting and requested states through the joint determination of possible fields for technical coop- eration, for example, by dispatching MLA experts from the requested state. • Improve coordination mechanisms, at both international and domestic levels, with a view to making relevant information more rapidly and ef- fectively available through the following actions: • Improve coordination at the domestic level by, for example, creating focal points and/or task forces in charge of pending asset recovery cas- es, with clearly attributed responsibilities for each task force member. • Use existing international practitioners’ networks more consistently, for example, in the framework of Interpol, Eurojust, Egmont, and the like, to increase the flow of information. • Create, if needed, new, tailor-made networks and communication platforms or international task forces to share information more ef- fectively. • Explore ways to increase cooperation with financial intelligence units (FIUs) with a view to exploiting more effectively the information and intelligence available in FIU networks. • Collect facts on the ongoing measures of financial centers to sup- port requesting states; for example, develop a matrix of assets frozen, seized, and finally repatriated by (and for) each state in question. • Customize the approach that best fits a specific case, with particular at- tention to creativity and complementarity, through the following actions: • Combine the available instruments, such as MLA proceedings, do- mestic criminal proceedings (for example, for money laundering or for participation in a criminal organization), and civil forfeiture. • Within the existing legal framework, make use of one’s own MLA requests to substantiate partner states’ MLA requests by providing relevant information. • Increase cooperation with third actors such as the World Bank/ StAR, UNODC, and nongovernmental service providers such as the International Centre for Asset Recovery, bearing in mind the impor- tant role they can play in capacity building, as well as with “match- makers” to bridge information gaps. The World Bank Legal Review264 • Explore the possibility of establishing international standard prac- tices in MLA proceedings and asset recovery as a blueprint for action in current and upcoming cases (typical sequencing, main legal chal- lenges to be addressed, and the like). • Actively search for innovative and creative solutions, bearing in mind that in asset recovery, there are no one-size-fits-all solutions. Participants concluded their discussions by expressing the wish for a follow-up to take stock of progress and to keep the momentum developed at the seminar. Conclusions Experience has shown that asset recovery cases raise complex legal issues across several jurisdictions. Resolving these issues demands close and un- wavering partnerships between the states involved, including the states of origin, as well as a considerable degree of tenacity and perseverance. The dy- namic application of the existing legal framework can go a long way toward simplifying efforts via international mutual assistance channels and speeding up restitution. In most cases, innovation and creativity play a decisive role in asset recovery. By its very definition, however, innovation is a process. Each case that is resolved offers new insights that allow the authorities concerned to review their procedures, amend them as necessary, and develop new ap- proaches for the future. Switzerland has a fundamental interest in ensuring that its financial sector is not used as a hiding place for assets of unlawful origin. Since the Marcos case in 1986, Switzerland has gathered a great deal of experience in the field of asset recovery and has refined its national legal framework accordingly. Regular contact with the competent authorities of partner states has been an important part of this development. Switzerland plans to continue this dia- logue through knowledge and experience sharing and will maintain its com- mitment in this area. 265 International Asset Sharing A Multipurpose Tool for Development Karyn Kenny The ability of governments across the globe to work effectively together to identify, seize, and forfeit illicit gains and combat the money laundering and the corruption that stem from these illicit gains is a critical component of in- ternational development. “Taking the profit out of crime” is an important goal within the international asset forfeiture (AF) and anti-money-laundering (AML) community. The need to strengthen AF/AML cooperation on a glob- al level is even more important. As the US Attorney General pointed out in March 2012, “[i]n an era where crime is not limited by physical boundaries, our international partnerships are more critical than ever in the work of bring- ing criminals to justice.”1 One such tool for development that strengthens in- ternational cooperation, builds domestic capacity, and combats transnational economic crime is international asset-sharing programs (IASPs). IASPs are agreements that permit the sharing country to recognize case-related assis- tance received from other countries during a domestically prosecuted forfei- ture and/or money-laundering case. This chapter outlines the components of an IASP and examines IASPs as a mechanism to aid economic and legal development. The chapter first examines the topic of international asset sharing from the perspective of an international organization, specifically, the United Nations (UN). The analysis then turns to a discussion of countries participating in asset-sharing agreements, such as The Bahamas and Canada. Then it explores the US Department of Justice’s (DOJ) IASP program in detail, focusing first on the US legislative framework regarding forfeiture and the DOJ’s management model for forfeited property and funds and then on the manner in which DOJ international sharing agree- ments are structured. The chapter concludes with an overview of the benefits of implementing a transparent and accountable IASP. Interwoven throughout the discussion are the developmental benefits that can be realized by implementing an IASP. Tangible benefits include building international cooperation among justice and financial agencies (for example, Any opinions expressed in the chapter are the author’s own and do not, in any way, reflect the official position or views of the US DOJ. The author would like to thank Hassane Cissé, Thomas Dougherty, Agustin Flah, Jenifer Preston, Matthew Moorhead, Milena Sanchez de Boado, and Linda Samuel for their support. 1 Remarks by the Attorney General of the United States Eric J. Holder, Jr. (Mar. 26, 2012), avail- able at http://www.gsnmagazine.com/node/25953 (accessed Mar. 28, 2012). Mark Rock- well, U. S., Mexico to Split Millions in Seized Assets to Cripple Drug Gangs, Government Security News (Mar. 27, 2012). http://www.gsnmagazine.com/node/25953 The World Bank Legal Review266 financial intelligence units and prosecution and law enforcement agencies), building capacity in domestic AF/AML sectors, and taking money out of the pockets of criminals. UN Support for Asset Sharing Support for international asset sharing can be found in a number of UN con- ventions, including the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 19882 (commonly referred to as the Vienna Convention), the UN Convention against Transnational Organized Crime3 (commonly referred to as the Palermo Convention), and the International Convention for the Suppression of the Financing of Terrorism.4 Pursuant to UN Resolution 2004/24, the Economic and Social Council, determined to strengthen interna- tional cooperation in the confiscation and disposal of the proceeds of crime covered by the Organized Crime Convention and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psy- chotropic Substances of 1988, and recognizing that a model bilateral agreement on sharing confiscated proceeds of crime could facili- tate greater international cooperation in that matter, requested the Secretary-General to convene an open-ended intergovernmental ex- pert group to prepare such a draft model bilateral agreement. The group met from 26 to 28 January 2005.5 As a result of these meetings, the UN Office on Drugs and Crime suc- cessfully developed a model agreement on international asset sharing. The UN Crime Commission endorsed this agreement in May 2005, and the UN General Assembly endorsed it in December 2005. The model provides a use- ful framework for countries needing an asset-sharing agreement to facilitate international forfeiture cooperation. 2 Article 5(a) provides that “proceeds or property confiscated by a Party . . . shall be disposed of by that Party according to its domestic law and administrative procedures.” Article 5(b) (ii) encourages the sharing of such confiscated assets with other parties “on a regular or case- by-case basis” in accordance with domestic law or any applicable bilateral or multilateral agreements.” Available at http://www.unodc.org/pdf/convention_1988_en.pdf (accessed Mar. 3, 2012). 3 Article 14 calls for forfeited assets to be disposed of pursuant to domestic law, but “if so requested” the country should “give priority consideration to returning the confiscated pro- ceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate own- ers.” See http://www.unodc.org/unodc/en/treaties/CTOC (accessed Mar. 3, 2012). 4 This convention recommends, but does not mandate, sharing. See http://www.un.org/law /cod/finterr.htm (accessed Mar. 3, 2012). 5 See Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok 6 (Apr. 2005). See also http://www.un.org/events/11thcongress/docs/programme.pdf (accessed Mar. 12, 2012). http://www.unodc.org/pdf/convention_1988_en.pdf http://www.unodc.org/unodc/en/treaties/CTOC http://www.un.org/law/cod/finterr.htm http://www.un.org/events/11thcongress/docs/programme.pdf http://www.un.org/law/cod/finterr.htm International Asset Sharing 267 In addition to the UN conventions, recommendation 38 of the Financial Action Task Force (FATF)6 advocates international asset sharing. Specifically, this recommendation states that [t]here should be authority to take expeditious action in response to requests by foreign countries to identify, freeze, seize and confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the com- mission of these offences, or property of corresponding value. There should also be arrangements for co-ordinating seizure and confis- cation proceedings, which may include the sharing of confiscated assets.7 In addition to UN support for international asset-sharing agreements, many nations, recognizing the benefits of such agreements, have established their own IASPs. The US Attorney General states, “It is the policy of the Unit- ed States to encourage international asset sharing and to recognize all foreign assistance that facilitates US forfeitures so far as consistent with US law.”8 This chapter examines in detail the components of one such IASP —that of the DOJ.9 Bermuda and Canada—International Asset-Sharing Agreements Bermuda and Canada are two countries that have entered into formal asset- sharing agreements. In March 2009, officials from the Bahamian and Canadian governments signed an asset-sharing agreement that reinforced their shared commitment to confiscate the proceeds of drug trafficking and money laun- dering, among other criminal acts. Prior to the agreement, The Bahamas and Canada had relied primarily on the 1990 Mutual Legal Assistance in Criminal Matters Treaty to exchange information and confiscate illegal assets. A mutual legal assistance treaty facilitates the gathering of evidence and intelligence in the inves- tigation and prosecution of criminal offences. It also enhances the capabilities in the confiscation of the proceeds of crime. Mutual legal assistance treaties are concluded between two countries for the pur- 6 “The Financial Action Task Force (FATF) is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. The FATF is therefore a ‘policy-making body’ which works to generate the necessary political will to bring about national legislative and regu- latory reforms in these areas.” See http://www.fatf-gafi.org/pages/aboutus/ (accessed Mar. 10, 2012). 7 See http://www.fatf-gafi.org/media/fatf/documents/40%20Recommendations.pdf, at 13 (accessed Mar. 24, 2012). 8 US Attorneys Manual, Chapter 9-116.000, Equitable Sharing and Federal Adoption, 9-116.400, In- ternational Sharing of Forfeited Assets (2011). 9 The US Department of Treasury maintains its own IASP for cases handled by the agencies that fall within the Treasury’s domain, such as the Internal Revenue Service. http://www.fatf-gafi.org/pages/aboutus/ http://www.fatf-gafi.org/media/fatf/documents/40%20Recommendations.pdf The World Bank Legal Review268 pose of gathering and exchanging information in an effort to enforce criminal laws and confiscate the ill-gotten gains of criminal activity.10 Then, in 2000, “[p]ursuant to the 1988 United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the Government of The Bahamas implemented the Proceeds of Crime Act 2000 (Act), where Sections 52 and 53 provide[d] for the establishment and administration of the Confiscated Assets Fund.”11 Following the passage of the act, the government of the Bahamas expressed a desire to formalize their existing cooperation ef- forts with the government of Canada. In 2001, both countries participated in negotiations that resulted in an agreement to enter into a formal asset-sharing agreement. In 2009, officials representing the governments signed an asset- sharing agreement. With this agreement, Bahamian and Canadian officials were able to strengthen their mutual cooperation efforts in combating interna- tional money-laundering offenders while facilitating bilateral confiscation of illicitly obtained assets. Asset Forfeiture Framework—US Federal Statutes The fundamental building block for any IASP is a strong and comprehensive legal framework. The statutory authority that enables the DOJ to enter into international asset-sharing agreements is found in Statute 18 US Code (USC) Section 981(i), Statute 21 USC Section 882(e)(1)(E), and Statute 31 USC Sec- tion 9703(h)(2).12 Statute 18 USC Section 981(i) sets forth the conditions under 10 See http://www.thebahamasweekly.com/publish/bis-news updates/Bahamas_and_Canada _Sign_Asset_ Sharing_Agreement 5788.shtml (accessed Jul. 19, 2012). 11 Id. 12 Statute 18 USC Section 981—Civil Forfeiture, Section (i), reads, in part: “(1) Whenever prop- erty is civilly or criminally forfeited under this chapter, the Attorney General or the Sec- retary of the Treasury, as the case may be, may transfer the forfeited personal property or the proceeds of the sale of any forfeited personal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property, if such a transfer (A) has been agreed to by the Secretary of State; (B) is authorized in an international agreement between the United States and the foreign country; and (C) is made to a country which, if applicable, has been certified under Section 481(h) [4] of the Foreign Assistance Act of 1961. A decision by the Attorney General or the Secretary of the Treasury pursuant to this paragraph shall not be subject to review. The foreign country shall, in the event of a transfer of property or proceeds of sale of property under this subsection, bear all expenses incurred by the United States in the seizure, maintenance, inventory, storage, forfeiture, and disposition of the property, and all transfer costs. The payment of all such expenses, and the transfer of assets pursuant to this paragraph, shall be upon such terms and conditions as the Attorney General or the Secretary of the Treasury may, in his discretion, set. (2) The provi- sions of this section shall not be construed as limiting or superseding any other authority of the United States to provide assistance to a foreign country in obtaining property related to a crime committed in the foreign country, including property which is sought as evidence of a crime committed in the foreign country. (3) A certified order or judgment of forfeiture by a court of competent jurisdiction of a foreign country concerning property which is the subject of forfeiture under this section and was determined by such court to be the type of property described in subsection (a)(1)(B) of this section, and any certified recordings or transcripts of testimony taken in a foreign judicial proceeding concerning such order or judgment of forfeiture, shall be admissible in evidence in a proceeding brought pursuant to this section. http://www.thebahamasweekly.com/publish/bis-newsupdates/Bahamas_and_Canada_Sign_Asset_Sharing_Agreement5788.shtml http://www.thebahamasweekly.com/publish/bis-newsupdates/Bahamas_and_Canada_Sign_Asset_Sharing_Agreement5788.shtml International Asset Sharing 269 which the US Attorney General may transfer personal property, or the pro- ceeds from the sale of any personal or real property, that has been civilly or criminally forfeited to a foreign country. The critical component of this statute is that it grants the attorney general discretionary authority regarding sharing agreements. Forfeiture Statutes Forfeiture is the taking, by the government, of property derived from a crime, involved in a crime, or that facilitates a crime, without compensating the owner. Many countries have enacted forfeiture laws in both their civil and their criminal codes. In the US federal system, there are two types of forfei- ture: administrative and judicial. Judicial forfeiture, which requires a pros- ecutor to start a case in court, is further subdivided into criminal and civil forfeiture. Each of these types of forfeiture is briefly discussed below. Administrative Forfeiture Administrative forfeiture is a nonjudicial matter handled by a law enforce- ment agency; the majority of all forfeitures are administrative. In this process, the seizing agency declares the property forfeited without a judicial proceed- ing; this status is reserved for uncontested cases. An administrative forfeiture typically begins with a law enforcement agent making a seizure based on probable cause.13 Each step of the administrative forfeiture process includes procedural and constitutional protections for owners. Following the initial seizure, the law enforcement agency commences the administrative forfeiture process by sending a notice to the party informing it of its right to file a claim for the return of the seized property within a certain period of time. After the period of time has lapsed, and if no claim is filed, the property may be declared forfeited by the federal agency. However, if a claim is filed, the case is referred to a prosecutor for judicial forfeiture, a process in which the party may challenge the forfeiture. Pursuant to US federal law, the seizing or adopting14 law enforcement agency may proceed to administratively forfeit a defined category of items. For example, the following may be forfeited: monetary instruments, such as cash, checks, stocks, and bonds; or conveyances, such as vehicles, vessels, Such certified order or judgment of forfeiture.” 13 “[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” United States v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991), cert. denied, 502 U.S. 950 (1991). 14 Under US federal law, a state or local law enforcement agency may request that a federal agency “adopt” a seizure if certain conditions are met, including if the underlying act sup- porting the seizure was a violation of US federal law. The World Bank Legal Review270 and/or aircraft that have been used to commit or facilitate a crime. In regard to other property, such as bank accounts and jewelry, only items valued at US$500,000 or less may be seized. Although most property can be forfeited administratively, an important exception is real property.15 Judicial Forfeiture Judicial forfeiture “is the process by which property is declared forfeited to the United States by a court. This status is required for any property other than monetary instruments and hauling conveyances if the value of the other property exceeds US$500,000; a valid, timely claim has been filed in an admin- istrative forfeiture; or if the property is real estate.”16 Once a property claim enters into a judicial forfeiture procedure, it will proceed as either a criminal or a civil case, depending on the circumstances regarding the seizure. Criminal Forfeiture Because it is in personam, that is, forfeiture against the person, only property that the defendant in a criminal case has an interest in, and that does not be- long to a third party, can be forfeited in a criminal case. In criminal forfeitures, the forfeiture allegation is contained within the criminal indictment.17 If the defendant is convicted, the jury or court hears additional evidence and/or argument on the forfeiture matter. If applicable, the court may also hold a post-trial ancillary hearing to address any third-party interests. Civil Forfeiture Civil forfeiture, also referred to as non-conviction-based forfeiture, is a civil action in-rem, that is, against the property itself, and forfeiture is limited to specific property involved in the crime.18 In this type of forfeiture action, the government must prove that the property, not the person, was derived from, or was used to, commit a crime. In a civil judicial forfeiture case, the case moves through a civil discovery process, with motions practice and trial stages. In terms of burden of proof, the government bears the initial burden of establishing the forfeitability of the property by a preponderance of the 15 US Department of Justice, Criminal Division, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (Apr. 2010). 16 Id. 17 Criminal indictment is defined by the Merriam-Webster Dictionary as a formal written state- ment framed by a prosecuting authority and found by a jury (as a grand jury) charging a person with an offense. 18 In The Recovery of “Criminal” Assets in New Zealand, Ireland and England, 41 Victoria U. of Wel- lington L. Rev. 26 (2010), Liz Campbell observes that “[i]n the same way that a civil action for misappropriation of property seeks to restore the injured party to the position he was in prior to the commission of the tort, it is arguable that civil forfeiture also seeks to return the state of affairs to that before the alleged criminal offence.” International Asset Sharing 271 evidence,19 and the innocent owner defense may be asserted. If forfeitability is proved and the innocent owner defense fails, the court will order judgment for the government. Countries that have incorporated forfeiture laws into their legal frame- work often have a version of the types of forfeiture discussed above. Re- gardless of the approach, the key is a strong legal framework to support the government’s ability to seize and forfeit property in accordance with constitu- tional and due process rights. In the United States, pursuant to Statute 28 USC Section 1355(b)(2), regardless of where the assets are physically located, the government may bring a civil forfeiture action before a federal court. How- ever, a “US court’s jurisdiction over international property is a legal fiction without the cooperation of the foreign country where the property is located. If the foreign country does not agree to enforce a US district court’s civil forfei- ture order, the US government would be unable to seize the property.”20 In addition to a strong statutory-based framework, an effective IASP re- quires the establishment of an agency or office that is tasked with an oversight role regarding the maintenance and accountability of seized and forfeited property and any resulting funds. In the US federal system, these responsibili- ties fall under the DOJ’s Asset Forfeiture Program. The DOJ’s Asset Forfeiture Program The need to efficiently preserve, manage, and (if the forfeiture process is final- ized) dispose of forfeited assets is an important component of any success- ful IASP21 and requires the presence of an agency or a specialized division. Such an agency can work to ensure that seized assets are properly maintained, which guarantees that their value is retained during the pendency of the sei- zure process—an important responsibility—regardless of whether the assets are returned to the original owner or ultimately forfeited to the government. In the United States, this function is carried out for the DOJ by the US Marshals Service.22 The US Marshals Service “has primary responsibility for holding and maintaining real and tangible personal property seized by 19 “A preponderance of evidence is described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true . . . the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.” See http://legal-dictionary.thefreedictionary.com. 20 Jorene Soto, Show Me the Money Part II, 13 –14 Oregon Review of Intl. L. 141, 152 (2011), quoting, in part, “See, US v. Meza, 856 F. Supp. 759 (E.D.N.Y/ 1994, aff’d, 63 F.3d 148 (2nd. Cir. 1995).” 21 Agencies participating in the Asset Forfeiture Program must also ensure that data in the property and financial management systems of the program are updated in a timely manner. 22 “The [US] Attorney General is authorized to use the Assets Forfeiture Fund to pay any nec- essary expenses associated with forfeiture operations such as property seizure, detention, management, forfeiture, and disposal. The Fund may also be used to finance certain general investigative expenses. These authorized uses are enumerated in 28 USC. Section 524(c).” http://legal-dictionary.thefreedictionary.com The World Bank Legal Review272 participating agencies for disposition. Seized property can be either returned to the owner or forfeited to the Government. Forfeited property is subsequent- ly sold, placed into official use, destroyed, or transferred to another agency.”23 Moreover, funds that are forfeited to the government must also be managed in a transparent, accountable, and efficient manner. In cases where the seizing agency participates in the DOJ’s IASP, the re- sponsibility for oversight of the funds and program management falls under the power of the DOJ’s Asset Forfeiture Program: The Comprehensive Crime Control Act of 1984 established the De- partment of Justice’s Assets Forfeiture Fund to receive the proceeds of forfeiture and to pay the costs associated with such forfeitures, in- cluding the costs of managing and disposing of property, satisfying valid liens, mortgages, and other innocent owner claims, and costs associated with accomplishing the legal forfeiture of the property.24 The Asset Forfeiture Program operates at the federal level and manages the individual DOJ components that are “charged with lawfully, effectively, and efficiently supporting law enforcement authorities in the application of specified forfeiture statutes.”25 The program was designed to support law en- forcement initiatives across the United States and around the globe to “re- move the tools of crime from criminal organizations, deprive wrongdoers of the proceeds of their crimes, recover property that may be used to compensate victims, and deter crime.”26 The DOJ’s Asset Forfeiture Program comprises two financial funds.27 Funds involving seized and forfeited property are managed in the United States by the Assets Forfeiture Fund (AFF), which works in conjunction with the Seized Asset Deposit Fund (SADF) to create a single financial reporting entity for the DOJ. These funds include the “specified funds, property seized for forfeiture, and the transactions and program activities of the DOJ forfeiture program components and other participating agencies.”28 23 See Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2011, available at http://www.justice.gov/oig/reports/2012/a1212.pdf (accessed Mar. 21, 2012). 24 Statute 28 USC Section 524(c). See http://www.justice.gov/jmd/afp/02fundreport/02_2 .html (accessed Feb. 18, 2012). 25 See Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2011, available at http://www.justice.gov/oig/reports/2012/a1212.pdf (accessed Mar. 2, 2012). 26 US DOJ, Criminal Division, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (Apr. 2010). 27 See Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2011, at 3, available at http://www.justice.gov/oig/reports/2012/a1212.pdf (accessed Apr. 1, 2012). 28 Id. http://www.justice.gov/oig/reports/2012/a1212.pdf http://www.justice.gov/jmd/afp/02fundreport/02_2.html http://www.justice.gov/jmd/afp/02fundreport/02_2.html http://www.justice.gov/oig/reports/2012/a1212.pdf http://www.justice.gov/oig/reports/2012/a1212.pdf International Asset Sharing 273 The Asset Forfeiture Program invests cash balances from both the AFF and the SADF in government securities. “All amounts earned from the investment of AFF and SADF balances are deposited into the AFF. The interest earned on the AFF balances is the property of the United States Government.”29 The AFF and SADF accounts are maintained at the US Federal Reserve Bank in New York. In accord with statutory requirements, the AFF managers must file an an- nual report with the US Congress detailing areas such as the total net deposits to the fund and the total expenses paid from the fund by category of expense, including equitable-sharing payments. The statute also sets forth the limita- tions governing use of the AFF, and the statutory authority is further con- trolled by policy guidelines.30 In total assets, the AFF (which present as of a specific time the amounts of future economic benefits owned or managed by the AFF/SADF), increased in FY 2011 . . . 71.7 percent . . . [s]pecifically, in FY 2011, ten major fraud cases re- sulted in extraordinary forfeiture income of $733.6 million compared to the nine FY 2010 fraud cases that resulted in extraordinary forfei- ture income of $630.3 million. The term extraordinary is considered nonrecurring forfeiture income greater than $25 million.31 The management and disbursement of forfeited funds must be carried out in a transparent manner. This transparency is necessary not only to preserve the viability of the IASP itself but also to ensure public and global trust in international asset sharing as an effective and accountable tool for reaching development goals. The DOJ’s International Sharing Program The DOJ’s international sharing program32 is “guided by standing interna- tional sharing agreements or [by] the subject of a future case-specific forfeiture sharing arrangement to be negotiated by AFMLS [Asset Forfeiture and Money Laundering Section of the US Department of Justice] and approved by the 29 See Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2011, available at http://www.justice.gov/oig/reports/2012/a1212.pdf (accessed Mar. 21, 2012). 30 See Attorney General’s Guidelines on Seized and Forfeited Property (Jul. 1990). 31 See Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2011, at 5, available at http://www.justice.gov/oig/reports/2012/a1212.pdf (accessed Mar. 21, 2012). 32 Although not the focus of this chapter, the DOJ also maintains a domestic equitable-sharing program, which as of 2009, had “shared over $4.5 billion in forfeited assets with more than 8,000 state and local law enforcement agencies.” See US Department of Justice, Criminal Division, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (Apr. 2010). http://www.justice.gov/oig/reports/2012/a1212.pdf http://www.justice.gov/oig/reports/2012/a1212.pdf The World Bank Legal Review274 Department of State.”33 When entering into sharing agreements, the DOJ and the recipient country must agree that the funds will be used to strengthen im- portant development goals, such as building capacity in the recipient’s AF/ AML sector. The preference is for shared funds to be used to support AF/AML reform and development; however, with some exceptions, shared funds can be used to support a wide variety of domestic development needs. Regard- less of the ultimate manner in which the funds are spent, each case-specific forfeiture-sharing arrangement is negotiated in a manner designed to ensure that it meets the needs of the recipient country. Between 1992 and 2011, the DOJ, through its international asset-sharing program, shared more than US$234,949,197 with more than 39 countries. Case-Specific Sharing Agreements Countries can enter into case-specific sharing agreements (CSSAs). A CSSA is used when forfeited funds are shared as a result of a specific case.34 Typically, a CSSA is an official written agreement, entered into between two or more coun- tries after a series of negotiations. The CSSA sets forth the percentage of total seized proceeds to be shared, memorializes the mutual understanding of how those proceeds will be used by the recipient country (preferably to enhance its AF/AML regimes), and addresses accountability and transparency issues regarding expenditures. The DOJ’s AFMLS negotiates the terms of the CSSA, with the US Depart- ment of Treasury’s concurrence and the US Department of State’s authoriza- tion. Through this process, the DOJ, often viewed as a domestically focused agency, can exercise a degree of assistance in the international development process. The Process for Requesting a CSSA An assisting country may request a CSSA for DOJ sharing in the following ways: • A request pursuant to a treaty between the United States and the assisting c ountry • A request made within the diplomatic arena • The submission of an official, signed letter by a country’s appropriate rep- resentative addressed to the US law enforcement agency that the country assisted in the investigation 33 US Attorneys Manual, Chapter 9-116.000, Equitable Sharing and Federal Adoption, 9-116.400, International Sharing of Forfeited Assets (2011). 34 In addition to CSSAs, related tools for international asset-sharing agreements are global asset-sharing agreements, which serve the same function as CSSAs, but the terms of which apply to all sharing between two countries, and agreements not limited to a single case agreement (as is a CSSA). International Asset Sharing 275 The Reviewing Process Once the initial request has been received, the appropriate agency in the DOJ will begin the first in a series of reviews to determine if an international as- set-sharing agreement is an appropriate action. The review process normally includes the prosecution office(s) and law enforcement agency (or agencies) that received the foreign assistance and additional divisions within the DOJ. During the review process, the following factors are considered: • Whether the foreign country directly or indirectly participated in the sei- zure or the forfeiture of property • Whether the transfer is authorized in an international agreement (that is, a mutual legal assistance treaty or an asset-sharing agreement) between the United States and the recipient country • Whether the underlying forfeiture has been finalized • Whether the country has been certified under section 481(h) of the US Foreign Assistance Act35 The decision regarding whether to enter into negotiations for a CSSA is not reviewable.36 However, if the above factors have all been satisfied, the pro- cess continues, with additional factors reviewed: • Whether the country provided the information that led to the seizure(s) of property that was ultimately forfeited • Whether the country provided unique and indispensable assistance dur- ing the investigation and prosecution of the case by the DOJ • Whether the country initially identified the assets for seizure • Whether the country seized one or more assets that were forfeited in non- federal proceedings during the same investigation • Whether the country could have pursued forfeiture under domestic law but instead joined forces with the United States to conduct a more effec- tive investigation or prosecution37 Because individual factors may vary, the review process attempts to take into account the totality of circumstances regarding the underlying case, in- cluding recognizing any unique challenges that were present in the investiga- tion and prosecution. 35 Chapter 8, section 481(h) of the Foreign Assistance Act, known as the Certification Law, serves as a link between foreign aid and positive drug-control performance. See http:// www.usaid.gov/policy/ads/faa.pdf (accessed Apr. 3, 2012). 36 The DOJ also shares forfeited proceeds domestically, among US federal, state, and local agencies. As with the global CSSA approach, domestically and pursuant to the Equitable Sharing Program conditions, the percentage of shared funds is based on participation and assistance in the underlying case. 37 US DOJ, Criminal Division, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (Apr. 2010). http://www.usaid.gov/policy/ads/faa.pdf http://www.usaid.gov/policy/ads/faa.pdf The World Bank Legal Review276 How Is the Percentage of Shared Funds Determined? If the DOJ determines that the case is appropriate for international sharing, the next stage is the determination of what percentage of the total amount of forfeited funds will be shared with the assisting country. This determination is at the discretion of the DOJ and typically reflects the degree of assistance provided by the foreign country, which falls into one of three categories: es- sential assistance (EA), major assistance (MA), and facilitating assistance (FA). Essential Assistance The highest level of sharing funds is EA. Cases falling into this category may enter into CSSAs in which 50 to 100 percent of the total forfeited funds can be shared. In deciding what cases fall in the EA category, the DOJ examines fac- tors such as whether the case involved victims or if the assisting country was the victim. In addition, the DOJ considers additional factors such as whether the as- sisting country waived its own forfeiture actions and provided all necessary evidence to US authorities and whether the country initiated defending litiga- tion or agreed to repatriate funds without an account signatory letter. In es- sence, the greater the amount of bilateral cooperation in a case, the greater the percentage of funds shared. Major Assistance In cases deemed to be MA, sharing percentages typically involve 40 to 50 per- cent of the total forfeited amount. In determining whether a case falls into the MA category, the DOJ considers several factors, such as whether the as- sisting country enforced a final forfeiture order from a US court or assisted in repatriating the assets to the United States. Other factors include whether the assisting country aided the US case by freezing or lifting a freeze over as- sets, whether the assisting country repatriated defendants via an extradition request, or whether their law enforcement agents were put at physical risk by assisting in the case. Equally important is whether the assisting country ex- pended substantial prosecutorial and law enforcement resources on the case. A recent example of MA sharing is the March 2012 signing of a letter of intent between the United States and the government of Mexico to share 70 percent, approximately US$6 million. According to a DOJ press release: On March 26, 2012, U.S. Attorney General Eric Holder and Mexican Attorney General Marisela Morales Ibáñez signed a letter of intent for the United States to share approximately $6 million in forfeited funds with the Office of the Attorney General of the Republic of Mexico (PGR) to support Mexican efforts to combat the financial in- frastructure of organized criminal groups and to enhance bilateral cooperation between the two countries in forfeiture matters. The letter of intent and anticipated fund sharing recognized the PGR’s valuable cooperation in the investigation and resolution of the US government’s case against the Sigue Corporation for viola- International Asset Sharing 277 tions of the Bank Secrecy Act. In January 2008, Sigue entered into a deferred prosecution agreement with the Department of Justice on charges of failing to maintain an effective anti-money laundering program. As a result, Sigue forfeited $15 million to the United States and agreed to commit an additional $9.7 million to improving its anti-money laundering program.38 Facilitating Assistance In FA cases, up to 40 percent of the total forfeited funds may be shared. Cases are categorized as FA when the assisting country provided critical informa- tion regarding an investigative lead, assisted the United States by obtaining and sharing extensive bank documentation, provided other financial records, and/or assisted in ensuring that foreign banks repatriated assets. Once the decision regarding the percentage to be shared has been determined, the pro- cess continues to the negotiation stage. Negotiation of CSSA Terms No other US government officer or agency may bind the DOJ to terms of a CSSA, which are negotiated by the AFMLS of the DOJ. For the assisting coun- try, negotiations are typically handled by the corresponding attorney gener- al, minister of justice, or minster of foreign affairs or a representative. The negotiation process includes a series of meetings to discuss how the shared funds will be targeted and addresses mechanisms to ensure accountability and transparency regarding the shared funds. These decisions are arrived at via a process of mutual agreement, and discretion is granted to the assisting country depending on individual circumstances. In discussing areas in which shared funds may be targeted, the domestic AF/AML sector will receive particular attention. The preference is for shared funds to target AF/AML issues; examples include • Support for establishing an AF/AML division with the recipient country’s prosecution office • Funding of joint investigations, programs to identify emerging trends in domestic and regional economic crime sectors, and to strengthen the over- all anti-money-laundering mission of the assisting country • Funding to explore ways to strengthen financial data mining and analysis capacity and to improve the tracking of suspicious bank transactions • Funding initiatives to increase bilateral asset forfeiture cases Typically, the target areas are written into the terms of the CSSA. Although there are some notable exceptions in which shared funds should not be target- ed (such as paying for salaries for prosecutors), the process allows for a great deal of flexibility in determining how funds should be expended. 38 US Department of Justice press release (March 26, 2012). The World Bank Legal Review278 IASPs as a Tool for Development Development has been defined as “the process which facilitates for every hu- man and all persons the enjoyment of economic, social, cultural and political development.”39 This definition includes the critical need to ensure that citi- zens around the globe have both access to and faith in a functioning and trans- parent justice sector. The primary question posed here is exactly how does the adoption and implementation of an IASP contribute to international develop- ment? The answer lies in the ability of the IASP to, if properly implemented, act as a mechanism to support domestic capacity building in a number of dif- ferent areas, including the AF/AML sector, to foster international cooperation, and to provide a means to combat transnational crime. In Resolution 2004/29, the United Nations recognized that the laundering of the proceeds of crime ha[s] spread internationally and ha[s] become a worldwide threat to the stability and security of financial and commercial systems [and] urged Member States that had not yet done so to strengthen their capacity to prevent, control, investigate and suppress serious crimes related to money-laundering, including money-laundering related to the financing of terrorism.40 An IASP can adapt and respond to the specific needs of both the recipient and the sharing country in various ways. First, an IASP can address development needs often encountered in frag- ile or weak states. The ability to target shared funds to specific areas of need can assist fragile states transitioning from postconflict to stable societies. For example, a transparent IASP can assist in the design and implementation of development projects in fragile states by using the shared funds to target key economic and justice sector reforms. It can also effectively address identified constraints that businesses and officials in weak states cite as limitations to growth, such as weak banking and court sectors.41 In these cases, shared mon- ies can provide funding for the establishment of a strong financial intelligence unit, an anticorruption office, or prosecutor and judicial training academies. Second, an effective IASP can provide fragile states with the opportunity to establish or strengthen their AF/AML sectors while also developing key partnerships that enable future capacity-building programs. Third, IASPs can be an effective tool in addressing unique challenges in justice sector growth—such as the absorption challenges that new member 39 Article 1 of the Declaration on the Right to Development (adopted by General Assembly Resolution 41/128 of Dec. 4, 1986), as quoted in A. H. Qureshi & A. R. Ziegler, International Economic Law 494 (2nd ed., Thomson/Sweet & Maxwell 2007). See also http://labspace.open .ac.uk/course/view.php?name=PUB_46_1.2 (accessed Feb. 26, 2012). 40 See 11th United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, 13 (Apr. 2005) (A/CONF.203/1). See also http://www.un.org/events/11thcongress/docs /programme.pdf (accessed Mar. 12, 2012). 41 See http://www.cgdev.org/content/publications/detail/1426232 (accessed Jul. 18, 2012). http://labspace.open.ac.uk/course/view.php?name=PUB_46_1.2 http://labspace.open.ac.uk/course/view.php?name=PUB_46_1.2 http://www.un.org/events/11thcongress/docs/programme.pdf http://www.cgdev.org/content/publications/detail/1426232 http://www.un.org/events/11thcongress/docs/programme.pdf International Asset Sharing 279 states of the European Union must confront. For example, shared funds can be focused on assisting new member states in their efforts to address economic, institutional, and justice sector absorption challenges, such as the need to im- prove fiscal management practices and to strengthen anticorruption capaci- ties. In these areas, an IASP can act as a mechanism to assist new member states in overcoming obstacles while continuing to foster key partnerships and encourage innovative planning initiatives. Fourth, IASPs can serve overall global development goals by strengthen- ing international cooperation efforts among countries, regardless of the eco- nomic or legal differences that may separate them. By serving as a mechanism that encourages countries to work together, IASPs create global partnerships to prevent, control, investigate, and suppress transnational economic crime. Finally, an accountable and transparent IASP demonstrates, at a very pub- lic and visible level, the ability of governments to work globally to take profits away from criminals and redirect them back to the very agencies and offices tasked with combating economic crimes. In a related manner, the successful completion of a bilateral CSSA represents an opportunity to share, domesti- cally and internationally, the message that international cooperation in fight- ing economic crime not only occurs but, more important, succeeds. Conclusion The ever-increasing globalization of transnational criminal groups not only endangers global economic systems but also undermines rule of law and good governance practices. Encouraged by the United Nations and domestic gov- ernments alike, asset sharing at an international level is an effective and pow- erful tool for development. It can assist in disrupting and dismantling trans- national criminal organizations while strengthening international cooperation on AF/AML issues.42 The ability of countries to cooperate on a bilateral scale and enter into mutually beneficial asset-sharing agreements serves a number of goals, including “taking the profit out of crime.” 42 DOJ equitable sharing applies only to sharing of assets that were seized by the DOJ and that were “forfeited judicially or administratively to the United States by the United States Attorney’s Offices or Forfeiture Program Participants.” The participants include the Asset Forfeiture and Money Laundering Section, Criminal Division (AFMLS); Organized Crime Drug Enforcement Task Force (OCDETF); Asset Forfeiture Management Staff, Justice Man- agement Division (AFMS); Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); Defense Criminal Investigative Service (DCIS); Drug Enforcement Administration (DEA); Bureau of Diplomatic Security, Department of State (DS); Executive Office for United States Attorneys (EOUSA); Federal Bureau of Investigation (FBI); Food and Drug Administration (FDA), United States Department of Agriculture (USDA); United States Marshals Service (USMS); and United States Postal Service (USPS). See US DOJ, Criminal Division, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (Apr. 2010). Toward a New Law and Development New State Activism in Brazil and the Challenge for Legal Institutions DaviD M. Trubek, Diogo r. CouTinho, anD Mario g. SChapiro At the intersection of law, economics, and the practices of states and devel- opment agencies, the field of law and development undergoes continuous realignment.1 As economic policies, legal theories, and institutional practices change, the salient issues in law and development change as well.2 The 21st century has ushered in a new era. Development theories are being challenged and new practices are emerging. Law and development scholars need to un- derstand the new trends and explore their implications for legal studies and practice. In the past couple of decades, development policy and practice have shift- ed in many regions, but nowhere more clearly than in Latin America. After a long period when neoliberal policies prevailed and the state’s role in the economy was curtailed, many countries in the region have begun to explore new forms of state activism. Brazil has been a leader in the formation of new development policies and in the creation of a new development discourse. Starting with the election of Lula da Silva in 2002 and gaining momentum during Lula’s second term in 2006, Brazil has instituted new forms of indus- trial and social policy, experienced a surge in growth, and seen a reduction in economic inequality. This trend has led scholars to begin to talk about a “new developmen- talism” and speculate about the emergence of a new kind of developmental state in which the government plays an active role in mobilizing resources, stimulating investment, and promoting innovation but does not command or 1 This article draws on David M. Trubek, Diogo R. Coutinho, and Mario G. Schapiro, New State Activism in Brazil and the Challenge for Law, in Law and the New Developmental State: The Bra- zilian Experience in Latin American Context (David M. Trubek et al. ed., Cambridge U. Press, forthcoming) (hereinafter, Trubek et. al). An earlier version of the article was discussed at the 2012 IGLP Workshop at Harvard Law School and the Conference on Global Governance: Critical Legal Perspectives at the European University Institute (July, 2012). The authors are grateful to Peter Houtzager, Willy Forbath, Alvaro Santos, David Kennedy, Duncan Ken- nedy, Helena Alviar, Jeremy Perelman, Lucie White, Mushtaq Kahn, Shunko Rojas, and Yves Dezalay for comments and suggestions. The authors also received useful comments from Professor Wang Chenguang of the Tsinghua University School of Law. 2 For a discussion of the history of law and development, see David M. Trubek and Alvaro San- tos, The New Law and Economic Development: A Critical Appraisal (Cambridge U. Press 2006). 281 The World Bank Legal Review282 control the economy. In this approach, the state employs an open-economy industrial policy to restructure production and increase international compe- tiveness while simultaneously using an active social policy to eliminate pov- erty, reduce inequality, and stimulate domestic demand. Unlike the old para- digm, in this new model, such a state seeks to benefit from participation in the global economy while avoiding the dangers of free trade fundamentalism, and it tries to stimulate, not replace, the private sector.3 This chapter explores shifts in government policy in Brazil since 2000, showing how these changes are influencing developments in the law. After a limited experience with neoliberalism, the country has embraced new forms of state engagement in the economy and social relations. Because these chang- es are recent and have not yet been fully consolidated, the resulting constella- tion can be viewed as new state activism (NSA),4 a term that suggests neither a return to the past nor a clearly consolidated alternative “model.” The chapter covers the emergence of NSA; identifies its salient features, noting how it dif- fers from prior forms of state intervention; explores some of the forces that have shaped this new form of state action; and provides a preliminary assess- ment of the significance and challenge of these developments for the law. Introduction: From the “Long 1990s” (1988–2004) to NSA The evolution of NSA in Brazil was preceded by a series of policy changes that dismantled some of the institutions of the old developmental state and embraced some aspects of the Washington Consensus. Like several other developing Latin American countries, Brazil had a classic developmentalist phase in the twentieth century: from 1930 until the end of the 1980s, economic policies consisted of state-led initiatives to promote import substitution indus- trialization, and growth through state-owned enterprises, economic planning, price control, regulatory and administrative authorities in key sectors, and the use of tax and financial incentives. 3 For a discussion of new developmentalism and the idea of a new development state, see David M. Trubek, Law, State and the New Developmentalism: An Introduction, in Trubek et. al, supra note 1. 4 See Glauco Arbix & Scott B. Martin, Beyond Developmentalism and Market Fundamental- ism in Brazil: Inclusionary State Activism without Statism, paper presented at the workshop on “States, Development, and Global Governance,” Global Legal Studies Center and the Center for World Affairs and the Global Economy (WAGE), University of Wisconsin, 2010, available at http://www.law.wisc.edu/gls/documents/paper_arbix.pdf (accessed Jul. 15, 2012); and Renato Boschi, Estado Desenvolvimentista no Brasil: Continuidades e incertidumbres (2010), 2 Ponto de Vista, available at http://neic.iesp.uerj.br/pontodevista/pdf/Ponto_de_ Vista_01fev2010.pdf (accessed Oct. 10, 2010). For an account of “new developmentalism” in Brazil, see Luiz Carlos Bresser-Pereira, From Old to New Developmentalism in Latin America, in Textos para Discussão–Escola de Economia de São Paulo 193 (2009). See also Eli Diniz, É possível um Novo Modelo de Estado Desenvolvimentista no Brasil? 2 IPEA – Boletim de Análise Político- Instiutional 17 (2012). http://www.law.wisc.edu/gls/documents/paper_arbix.pdf http://neic.iesp.uerj.br/pontodevista/pdf/Ponto_de_Vista_01fev2010.pdf http://neic.iesp.uerj.br/pontodevista/pdf/Ponto_de_Vista_01fev2010.pdf Toward a New Law and Development 283 Between 1988 and 2004, known as the “long 1990s,” Brazil partially dis- mantled these structures and policies and shifted to more market-oriented ap- proaches. In 1988, after 24 years of military dictatorship and in a context of a threat of hyperinflation,5 Brazil passed a new constitution that has influenced and shaped policy ever since. The 1988 constitution is a social democratic doc- ument that created a vibrant democratic polity and includes civil, political, and social rights and a number of policy goals such as building a free, just, and socially integrated society; fostering national development; acquiring tech- nological autonomy; eradicating poverty and marginalization; and reducing economic and social inequalities. Many of the constitution’s provisions have had a direct effect on government policy and budgetary allocations. President Collor de Mello was elected in 1989, immediately after the new constitution came into force. Stressing the need for “modernization,” Col- lor de Mello rapidly liberalized the economy using drastic tariff reductions, privatization, and flawed attempts to control inflation. Under Itamar Franco, who replaced Collor de Mello after he was impeached, a stabilization plan (the Plano Real) was successfully adopted and inflation was controlled.6 New legislation on social assistance and welfare for the poor was also passed. Franco’s minister of finance, Fernando Henrique Cardoso (known as FHC), became the next president in 1994. During Cardoso’s eight years in of- fice, Brazil continued to move away from the dirigiste policies of the develop- mentalist period, embracing many of the neoliberal prescriptions favored by the Washington Consensus.7 In the Cardoso period, state owned-enterprises were privatized, direct subsidies for certain industries were scaled back, areas of the economy were deregulated, import barriers were reduced, competition was fostered and enforced, intellectual property rights were tightened, bilat- eral investment treaties protecting foreign investors were signed, and fiscal responsibility was enhanced. Also, the currency (the real) was constantly kept overvalued as monetary stability was pursued and attained.8 Under Cardoso, the bureaucracy was partially modernized, regulatory agencies were created, public-private partnerships were designed, and new 5 In January 1990, inflation in Brazil reached 56 percent per month, raising to 73 percent in February and peaking at 84 percent in March; see Luiz Carlos Bresser-Pereira and Yoshiaki Nakano, Hiperinflação e estabilização no Brasil: O Primeiro Plano Collor, Revista de Economia Política 4 (1991). During the same period, economic inequality reached its worse level since it had been measured (the Gini coefficient peaked at 0.647, according to the Brazilian Office of Statistics). 6 “Despite that, a period of strong deterioration of the Balance of Payments began, which led the current-account deficit to achieve 4.0% of the GDP in 1998.” Antonio Barros de Castro, From Semi-Stagnation to Growth in a Sino-Centric Market, 28 Brazilian J. of Pol. Eco. 3–27 (2008). 7 Cardoso has always rejected the neoliberal label and claimed that his goal simply was to modernize the economy. 8 “[T]he goal of price stability has remained sacrosanct and the instruments for achieving this goal have been in line with the latest international fashions: central bank independence and inflation targeting.” Cornel Ban, Brazil’s Liberal Neo-Developmentalism: New Paradigm or Edited Orthodoxy? Rev. Intl. of Pol. Eco. (forthcoming). The World Bank Legal Review284 social policies were adopted. To carry out privatization and encourage foreign investment, Congress made several changes in the constitution. But although the country adopted some ideas from the Washington Consensus, it did not wholeheartedly embrace neoliberalism. Privatizations were limited; Banco do Brasil, BNDES (the Brazilian Development Bank), and Petrobrás, three major state-owned enterprises, remained under government control. None of the bilateral investment treaties signed in the 1990s was ratified. Institutional and Political Background: The New Democratic Constitution of 1988 and the Cardoso Administration Political parties and social movements had been repressed during military rule (1964–85). When the constitution-making process started in the late 1980s, an eruption of social-political demands had to be accommodated. Not surpris- ingly, the resulting constitution was nicknamed “the citizen’s constitution.” Not only did it create democratic institutions, it also included an extensive charter of civil-political and social rights and reframed public-private rela- tionships. The constitution incorporates provisions guaranteeing the rule of law, protecting individual rights, and guarding against arbitrary state action. It also created positive—and justiciable—rights that could impose policy ob- ligations. The 1988 constitution includes rights to health, education, housing, social protection, and pensions. These guarantees have shaped a new and complex welfare system, including a massive universal public health system and a system of universal pensions. The new system in turn has had a ma- jor impact on the role of the state and on patterns of government spending.9 Instead of cutting back on social spending as many countries did during the 1990s, Brazil increased the percentage of GDP devoted to social protection during that period.10 Besides facilitating political mobilization and participation, instituting so- cial rights and shaping social policies, the new constitution facilitated modern- ization of the state apparatus and reframed public-private relationships with consequences for the business environment. The 1988 constitution initiated a slow process of professionalizing state administration. Until the 1930s, public employees were hired through the “spoils system” of political appointments. A partial reform under Getulio Vargas had instituted meritocratic selection for some key agencies such as BNDES and the Foreign Ministry, but left most gov- ernment jobs subject to political appointment.11 The 1988 constitution carried 9 See Jorge Abrahão de Castro & José Celso Cardoso Jr., Políticas Sociais no Brasil: Gasto Social do Governo Federal de 1988 a 2002, in Questão Social e Políticas Sociais no Brasil Contemporâneo (Luciana Jacoud et. al. ed., IPEA 2005). 10 See Kleber Pacheco de Castro & José Roberto Afonso, Gasto Social no Brasil Pós 1988: Uma Análise sob a Ótica da Descentralização Fiscal, 1 Revista de Política, Planejamento e Gestão da Saúde 34–56 (2009). 11 The first initiative to reform the public sector to create a more professional public staff was un- der taken by President Getulio Vargas (1930–45), whose government created the Department Toward a New Law and Development 285 the reform further, requiring that all public employees be selected through meritocratic processes and capping state salaries. The constitution significantly affected relations between the state and business. It required competitive bidding for all state purchases and made the process more transparent. The special federal prosecutors (Ministério Público) were authorized to combat corruption and enforce laws protecting consumers and the environment. The constitution also protected individuals and busi- nesses against regulatory takings and expropriation without compensation. Although the new constitution embraced social-democratic values and norms and some developmentalist ideas, during the 1990s, Brazil flirted with neoliberal policies. In 1994, President Itamar Franco and Minister of Finance Fernando Henrique Cardoso launched the Plano Real, a macroeconomic sta- bilization effort that eventually managed to control inflation in Brazil.12 One of Cardoso’s first acts as president was to get Congress to remove some provi- sions in the 1988 constitution that enshrined “old developmentalist” policies such as state monopolies and restrictions on foreign investment.13 Under Cardoso, Brazil experienced a strong devaluation of the real as a result of a harsh international crisis (particularly in Mexico, Russia, and Asia). The government raised the interest rate to a very high level, which severely hindered growth. At the same time, the Cardoso government managed to embed Brazil in the world economy through trade liberalization. In 2000, it ensured fiscal austerity by passing a fiscal responsibility act, and it sought to modernize public administration by adopting tenets of a “new public admin- istration” that allowed outsourcing of certain functions to the private sector.14 Under Cardoso, Brazil accelerated privatizations initiated by Collor and Itamar Franco:15 in 1997, Vale do Rio Doce, a major state-owned mining and steelmaking company, and Sistema Telebrás, the public-owned telecommu- nication conglomerate, were sold. In the same year, several electricity and gas distribution companies, as well as some state-level banks, were trans- ferred to private owners. During his eight years as president, Cardoso raised of Public Service Management (DASP), a preliminary attempt at establishing a public career path in Brazil. 12 In 1999, Brazil officially adopted an inflation target system (the target in 2012 is 4.5 percent per year). 13 João Paulo M. Peixoto, The Brazilian States since Vargas, in The Brazilian State: Debate and Agenda (Mauricio Font & Laura Randall ed., Lexington Books, 2011). 14 The strategy segregated core activities that should be performed by politicians and senior officials, including conducting support activities that may be outsourced, separating policy formulation from policy execution, and granting more autonomy and accountability to ser- vices performed by the state, which would take the form of either “executive agencies” or of “social organizations” that are a special type of nonprofit. See Luiz Carlos Bresser-Pereira, The 1995 Public Management Reform in Brazil: Reflections of a Reformer, in Reinventing Leviathan: The Politics of Administrative Reform in Developing Countries (Ben Ross Schneider & Blanca Heredia, ed., North-South Center Press, 2003). 15 Franco privatized CNS, an important steel company, in 1995. The World Bank Legal Review286 approximately US$79 billion through privatization. However, like Petrobrás, the Brazilian state oil and gas company, the three large federal banks—Banco do Brasil, Caixa Econômica Federal, and BNDES—were not privatized. In- deed, BNDES played an important role in facilitating privatization by offering credit to both domestic and international buyers. Table 1 lists the state-owned enterprises that were privatized in the 1990s. Table 1. State-Owned Enterprises Privatized USIMINAS 24.10.1991 CSN 02.04.1993 USIMEC 24.10.1991 FEM 02.04.1993 CELMA 01.11.1991 ULTRAFÉRTIL 24.06.1993 MAFERSA 11.11.1991 COSIPA 20.08.1993 COSINOR 14.11.1991 AÇOMINAS 10.09.1993 COSINOR DIST. 14.11.1991 EAC 07.12.1994 SNBP 14.01.1992 EAI 07.12.1994 AFP 14.02.1992 PQU 25.01.1994 PETROFLEX 10.04.1992 CARAÍBA 28.07.1994 COPESUL 15.05.1992 EMBRAER 07.12.1994 Can 15.07.1992 NEIVA 07.12.1994 ALCANORTE 15.07.1992 ESCELSA 11.07.1995 CST 23.07.1992 LIGHT 21.05.1996 FOSFÉRTIL 12.08.1992 VALE 06.05.1997 GOIASFÉRTIL 08.10.1992 MERIDIONAL 04.12.1997 ACESITA 23.10.1992 TELEBRÁS 29.07.1998 ENERGÉTICA 23.10.1992 GERASUL 15.09.1998 FASA 23.10.1992 DATAMEC 23.06.1999 Source: Ministério do Planejamento, Orçamento e Gestão (Brazil) Brazil adapted the US model of regulatory agencies to supervise and en- force post-privatization rules and to introduce competition in natural monop- olies. As a result, electrical distribution, fixed telecommunication networks, and transportation (railways, highways, waterways) were subject to a new legal and institutional framework that substantively changed the patterns of administrative law. New licensing and concession agreements were signed. For a list of areas subjected to regulation see table 2. Toward a New Law and Development 287 Table 2. Activity Regulated Activity Regulated Commission Foundation Law Competition CADE 1994 8.884/94 Electric power ANEEL 1996 9.427/96 Oil & Gas ANP 1997 9.478/97 Telecommunication ANATEL 1997 9.472/97 Health Surveillance ANVISA 1999 9.782/99 Health Insurance ANS 2000 9.961/00 Water ANA 2000 9.984/00 Water Transport ANTAQ 2001 10.233/01 Land Transport ANTT 2001 10.233/01 Aviation ANAC 2005 11.182/05 The Cardoso administration rejected the idea of industrial policy, long a mainstay of Brazil’s developmental state. Finance Minister Pedro Malan said that “the best industrial policy you can have is not to have one.” BNDES, which for decades had provided financing to targeted sectors and supported many state-owned enterprises, shifted to support of privatization. Rather than trying to support priority sectors, the government focused on increasing the efficiency of government services and reforming credit markets. For example, starting with Cardoso and continuing into Lula’s first term, the Central Bank sought to reduce the cost of credit. Among the microeconomic measures un- dertaken were improvements in bankruptcy procedures and debt collection.16 The Cardoso administration’s opposition to industrial policy did not de- ter it from stimulating selected sectors in order to promote competiveness and innovation. Thus, in 1999, 16 new sectorial funds were charged with fostering innovation in strategic areas such as oil and gas, telecommunications, biotech- nology, and agribusiness. The Cardoso period also saw important changes in social policy. Traditionally, the Brazilian welfare state has been regressive, cli- entelistic, and opaque. Between 1994 and 2002, the federal government took a number of measures aimed at transforming this system, including add- ing poverty-alleviation programs aimed at specific populations; introduc- ing noncontributory social protection programs; decentralizing social policy implementation; and tackling some of the regressive features of the pension 16 According to Fabiani, during the 1999–2006 period, the law behind the government’s micro- economic agenda was seen as an instrument to protect creditors and ultimately to promote economic efficiency. See Emerson Ribeiro Fabiani, Direito e Crédito Bancário no Brasil (Saraiva, FGV, 2011). The World Bank Legal Review288 scheme.17 The Cardoso government initiated the use of conditional cash trans- fers; for example, the Bolsa Escola program, implemented 2001, aimed to in- crease access to education, reduce poverty in the short term by transferring cash to impoverished households, reduce child labor, and serve as a social protection network.18 Another important development in this period was LOAS (the Social As- sistance Act). Enacted under Itamar Franco and implemented by Cardoso, LOAS seeks to guarantee “minimum social standards.” The noncontributory multilevel federal, state, and local program is designed to protect households, mothers, children, adolescents, and the elderly; to assist underprivileged chil- dren and adolescents; to promote labor market integration; and to train and rehabilitate persons with disabilities and promote their integration into com- munity life.19 NSA Emerges Luiz Inácio Lula da Silva was elected president in 2002. For two four-year terms, his government preserved some Cardoso policies such as inflation control and openness to foreign investment while changing others by adopt- ing state-activist initiatives, including an active industrial policy and a mas- sive poverty-fighting program. Dilma Roussef, elected president in 2010, has maintained Lula’s priorities but expanded state activism in key areas.20 Lula’s inauguration instigated a decade of experimentation. Develop- mentalist institutions have been reinvented, neoliberal policies were modi- fied, new institutions were created, and a new form of state activism is emerg- ing. Changes have occurred gradually.21 Some of Cardoso’s policies, such as 17 Almeida explains that during Cardoso’s first term, some changes in universal social polices confronted the regressive feature of the Brazilian pension system (a constitutional amend- ment changed the minimum age and the period of contribution for retirement), although the problematic topic of public servants’ pensions—a major source of inequality in the coun- try—remained untouched. See Maria Hermínia Tavares de Almeida, A Política Social no Go- verno Lula, 70 Novos Estudos - CEBRAP 70 7–17 (2004). 18 Inspired by successful experiences at the local level, the federal Bolsa Escola program reached more than 5 million families. Other conditional cash transfer programs widened the scope of protection and helped build a multilevel public-private network of providers. 19 The federal government is assigned the task of coordinating and promoting LOAS and pro- viding technical advice and financial incentives to states, cities, and welfare entities and organizations. States must transfer certain funds to municipalities, provide them with tech- nical support, and stimulate the collective rendering of social services. Municipalities must, among other things, execute social assistance and poverty-fighting policies, which includes the possibility of establishing partnerships with civil society organizations. 20 See Alfredo Saad Filho, Neo-Developmentalism and the Challenges of Economic Policy-Making under Dilma Rousseff, 38 Critical Sociology (2012), available at http://crs.sagepub.com/con- tent/early/2012/07/03/0896920512441635.abstract?rss=1 (accessed Oct. 5, 2012). 21 To win the election, Lula stated that debt agreements would be honored. Talking about the gradual manner through which changes would take place, Lula said in his “Letter to Bra- zilians” in 2002: “the premise of this transition will naturally be the respect to contracts http://crs.sagepub.com/content/early/2012/07/03/0896920512441635.abstract?rss=1 http://crs.sagepub.com/content/early/2012/07/03/0896920512441635.abstract?rss=1 Toward a New Law and Development 289 macroeconomic stabilization, have been preserved, and some of his social policy innovations have been improved and substantially expanded. Institu- tions like BNDES that survived from the period of state developmentalism have been reinvigorated and redirected. Other developmentalist institutions, such as industrial policy, that were rejected during the neoliberal period have been revived, albeit in different form. Finally, new institutions have been added to increase coordination between the public and private sectors.22 Macroeconomic Continuity Scarred by decades of high and damaging inflation, Brazil adopted policies in the 1990s to preserve monetary stability. The Plano Real used various mea- sures to control public spending and regulate the money supply. This has kept the inflation rate low (by Brazilian standards) for more than 15 years and en- shrined monetary stability as a cornerstone of economic policy. During the first Lula administration, emphasis was placed on instituting, developing, and strengthening political and economic credibility using fiscally responsible macroeconomic policy, a floating exchange rate, and inflation targeting. In gen- eral terms, the Dilma administration has continued these policies. However, this emphasis has come at a price: the main tools of macroeconomic policy are restrictions on government spending and a relatively high interest rate, putting a brake on public investment and increasing the cost of credit, thus possibly hampering growth. To offset these effects, Lula introduced several growth-inducing microeconomic policies, including a new form of industrial policy and social policies that helped spur domestic growth while relieving poverty and reducing economic inequality. Industrial Policy In 2004, after a decade in which Brazil had explicitly rejected industrial policy,23 the government introduced measures designed to foster selected in- dustries. Lula’s first try at industrial policy was limited and focused primarily on innovation. At the time, there was strong opposition to industrial policy in policy making circles and academic opinion. It was thought that governments were not able to strategically identify targets and that trying to do so would divert resources from horizontal structural measures such as tax reform and infrastructure investment that would benefit the entire economy. However, some people were prepared to accept a limited role for govern- ment in overcoming market failures and reducing the coordination and sys- temic problems that hampered innovation; the Cardoso administration had taken modest steps in this direction. Lula’s first foray into industrial policy and obligations enforceable in the country.” Available at http://www2.fpa.org.br/carta-ao- povo-brasileiro-por-luiz-inacio-lula-da-silva. 22 A notable example is the Public-Private Partnership Federal Act of 2004. 23 For a history of the rejection of industrial policy see Wilson Suzigan & A. V. Villela, Industrial Policy in Brazil (Editora da Unicamp 1997). http://www2.fpa.org.br/carta-ao-povo-brasileiro-por-luiz-inacio-lula-da-silva http://www2.fpa.org.br/carta-ao-povo-brasileiro-por-luiz-inacio-lula-da-silva The World Bank Legal Review290 —called PITCE—stressed a combination of general measures to improve the business environment24 and financial support in four sectors in which one could argue innovation was essential: semiconductors, software, capital goods, and medicines. PITCE included substantial legislative activity, including the Innova- tion Law (designed to facilitate partnerships and synergy among universi- ties, companies, and research institutes) and the Foundation Law (which fa- cilitated government support for university research).25 At the same time, the government started building institutions designed to improve coordination within government and between government and the private sector. These in- cluded the Council of Economic and Social Development (CDES), designed to help foster inclusive growth; the National Council of Industrial Development (CNDI), a public-private body charged with defining directives for industrial development; and the Brazilian Agency for Industrial Development (ABDI), which coordinates implementation of industrial policy by bringing together government, industry, labor, and universities. Arbix and Martin describe ABDI as a “networked institution, formally under the Ministry of Develop- ment, Industry, and Trade. ABDI has played an important role in seeking to develop an industrial policy and helps identify and guides investment deci- sions in technological research, innovation and industrial development.”26 In 2008, during Lula’s second term, the government launched the Pro- gram for Productive Development (PDP).27 PDP replaced PITCE and was much more ambitious and complex. It included both horizontal measures designed to increase the overall efficiency of the economy and vertical pro- grams for targeted sectors. Reflecting the scope and complexity of the Brazil- ian economy, PDP covered a wide range of industries. The program set goals, established a complex governance regime, and placed special emphasis on collaboration between the public and the private sectors. It called for industry- specific competiveness councils instituted by Cardoso and expanded under Lula. PDP relied on policy instruments such as financing, tax, public procure- ment, public-private alliances, coordination and consultation, and regulation. Horizontal measures in PDP included improvements in infrastructure and education, increased investments in science, reductions in interest rates for investment, tax relief, and improvements in the legal environment, including 24 These include legal measures to improve incentives for innovation and to facilitate better relations between universities and business, as well as tax relief. 25 The Innovation Law allowed the government to invest directly in private companies as a mi- nority shareholder in order to create new products and processes, and provides for sharing of any resulting intellectual property. The Foundation Law facilitated support from FINEP and the National Fund for Scientific and Technological Development for university-based research-support foundations. 26 Arbix & Martin, supra note 4. 27 The discussion in this section draws heavily on Luciano Coutinho et al., “Industrial Policy and Economic Transformation,” in The Oxford Handbook of Latin American Political Economy, 134–188 (Javier Santiso & Jeff Dayton-Johnson ed., Oxford U. Press, 2012). Toward a New Law and Development 291 modernizing the rules governing foreign trade. Vertical measures, which dealt with specific industries, were designed to meet three basic challenges. For each, there were different governance mechanisms and a different mix of policies and measures. Measures that might be employed included subsidized credit from BNDES and other public financial sources, tax incentives, technical as- sistance, advantages in public procurement rules, favorable trade policy, and supportive regulation. The first challenge identified by PDP was to consolidate and expand lead- ership in sectors in which Brazil was deemed to have a competitive edge. The goal was to support Brazilian firms that could be world leaders or heavy- weights in their industry. Sectors included aviation, mining, steel, cellulose, oil and gas/petrochemical, bioethanol, and meat. The second challenge was to foster and occasionally induce mergers and alliances (sometimes with BNDES holding a minority stake) to build up industries that had competitive potential but were not yet at the global frontier. These included capital goods, the auto- motive complex, wood and furniture, pharmaceutical, meatpacking, personal hygiene, perfumery and cosmetics, construction, various service industries, coastal and marine industry, leather, footwear and artifacts, the agro-industri- al system, and plastics. The third challenge was to strengthen high-tech “van- guard” sectors that had both growth potential and whose growth could im- prove the technological capacity of the entire economy. These strategic areas included health, biotechnology, defense, nuclear energy, nanotechnology, and information and communication technology. The governance of PDP was complex. A system of public management brings representatives of appropriate ministries and agencies together for each of the major tasks and links them to the private sector through a variety of coordination devices. Observers of PDP point to the importance of public- private coordination at every level, from setting overall priorities to working out packages of effective measures for each sector. PDP was overtaken by the global financial crisis before it got off the ground. But even if there had been no recession, a program like this, which en- visions major structural changes, must be considered in a long-term context. Although the government can point to some real achievements, critics have questioned whether the plan truly shifted resources from traditional sectors to high-tech industries or if did enough for small and medium industry, which often is a major source of innovation.28 In 2011, the new administration, led by Dilma Rouseff, introduced an updated version of PDP called Brasil Maior (Greater Brazil) with the motto 28 According to information available from the BNDES, in 2008, out of the 179 beneficiary companies, 12 were listed in Bovespa (a Brazilian stock exchange). In 2009, out of the 156 beneficiary companies, 25 were listed in Bovespa. Available at http://www.bndes.gov.br /SiteBNDES/bndes/bndes_pt/Institucional/BNDES_Transparente/Consulta_as_operacoes _do_BNDES (accessed May 1, 2010). http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Institucional/BNDES_Transparente/Consulta_as_operacoes_do_BNDES http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Institucional/BNDES_Transparente/Consulta_as_operacoes_do_BNDES http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Institucional/BNDES_Transparente/Consulta_as_operacoes_do_BNDES The World Bank Legal Review292 “innovate to compete; compete to grow.”29 This plan continued many of the same objectives and policies of PDP. But reflecting rising concerns about “dein- dustrialization,” the plan emphasizes efforts to protect domestic industries hit hard by global competition, an overvalued currency, and low-cost imports. Taxes on manufacturing have been reduced, attention is paid to antidump- ing measures, and substantial preferences for local producers in government procurement have been introduced. At the same time, funding from BNDES and FINEP, the Financiadora de Estudos e Projetos, were increased and efforts were made to channel more funding to innovative firms and sectors. ABDI identifies three major strategic areas for development and explains how Brasil Maior addresses each area. To increase investment and spur inno- vation, Brasil Maior offers tax relief, increased financing for investment and innovation, and further improvements in the legal framework. To promote ex- ports and protect domestic industry from unfair trade, the plan offers tax re- lief, export financing and guarantees, trade promotion, and enhanced defense thorough antidumping and other trade remedies. To protect hard-hit domestic firms, the plan includes exemptions from payroll tax for selected industries and a 25 percent margin of preference for local firms in government procurement. An important part of the Brasil Maior plan is the system of public-private coordination that builds on structures created for PDP: the National Industrial Development Council (CNDI), sectorial executive committees, and sectorial competiveness councils. CNDI is a peak institution that includes ministers, the president of BNDES, and 18 representatives of industry, labor, and the public. Its role is to set strategic guidelines. The Brasil Maior plan identifies 20 priority sectors: petroleum, gas and marine construction, chemicals, health, renewable energy, furniture, automotive, mining, civil construction, defense, aviation and aerospace, agro-industry, capital goods, metallurgy, logistics ser- vices, electronics, personal hygiene, fragrances and cosmetics (HPPC), servic- es, retail, shoes, textiles, candy and jewelry, cellulose and paper. There is an ex- ecutive committee and a competiveness council for each sector. The executive committee consists of government officials charged with developing an action plan for the sector. These representatives meet with the sectorial competive- ness councils to refine the action plans and explore implementation issues. Social Policy In addition to reviving industrial policy, the governments of Lula and Dilma have expanded Brazil’s social protection system and antipoverty programs. The result is a significant decline in the poverty rate, a reduction in inequality, substantial growth of the middle class, and stimulus for the domestic mar- ket. Between 2001 and 2008, incomes of the wealthy grew at a moderate pace, while the income of the poor increased substantively. Approximately 28 mil- lion people moved out of poverty and a “new” middle class has emerged— between 2003 and 2011 approximately 10.5 million Brazilians became part of 29 Available at http://www.brasilmaior.mdic.gov.br/. http://www.brasilmaior.mdic.gov.br/ Toward a New Law and Development 293 the middle class, which now includes 55 percent of the population.30 The Bra- zilian social pyramid is now diamond shaped, with more citizens classified as middle class than as poor. The distributive gains achieved in Brazil during the past decade are the result of a combination of economic and institutional reforms. These reforms include the reintroduction of previous efforts such as inflation control and changes in labor markets that include unemployment reduction and increases in the minimum wage, pensions, and social security improvements, as well as a new generation of social assistance policies, especially the Bolsa Família program (BFP), created in 2003 as a result of a consolidation of previously existing initiatives.31 Health and education spending as a share of GDP has grown considerably in recent years, magnifying the impacts of institutional reforms instituted in the late 1990s. In another recent development, in 2011, the Brazilian Unified Social Assistance System (SUAS) was institutionalized and formalized by a federal statute. In June 2011, President Dilma Rousseff launched the Brasil Sem Miséria program,32 designed to rescue 16.2 million people from extreme poverty, 59 percent of whom live in the northeast region. Brasil Sem Miséria has been presented as a combination of complementary rural and urban sectorial ac- tions—in the areas of income transfer, labor market integration, access to public services, education, health, social assistance, water, and sewage—and involves the creation of new initiatives and the reconceptualization of exist- ing ones. This program aims to find and register extremely poor families and integrate them into different programs. Brasil Sem Miséria is also supposed to help those who graduate from BFP enter the labor market.33 The changes in social policy seem to be working: poverty has been cut drastically and income inequality has been reduced. Although Brazil still is one of the most economically unequal countries in the world,34 the decline in pov- erty and the reduction of inequality in Brazil in recent years have been remark- able. Thanks to a wide range of policies—including universal, targeted, and decentralized programs—the Brazilian welfare state is becoming stronger.35 30 See Marcelo Nery, A Nova Classe Média – o lado brilhante da base da pirâmide 29 (Saraiva 2011). 31 Since its inception, BFP has reached more than 12 million families as beneficiaries. If one as- sumes that each family has four people on average, the total figure for individuals who have benefited from BFP reaches 48 million people, or approximately 25 percent of the Brazilian population. Half of its budget has been spent in the northeast part of Brazil, where millions of very poor families live. Considering its gigantic scale, the targeting of BFP (defined as the share of total benefits received by specific groups of the population) has been considered ex- emplary, outperforming other social assistance programs in both Brazil and internationally. 32 Translation: “Brazil without Indigence.” 33 Brasil Sem Miséria also changed the number of children and adolescents who can obtain the BFP benefit—as of 2012, up to five (it used to be three). 34 The Brazilian Gini coefficient in 1960 was 0.5367; it was 0.6091 in 1990; and in 2010, it was still very high (0.5304). See Nery, supra note 30 at 27. 35 As put by Arbix & Martin, supra note 4: “while Brazil’s ‘welfare state’ still has segmented The World Bank Legal Review294 Brazil’s NSA: Something New under the Sun? The emerging profile of state activism differs from state action in both the developmentalist period and the neoliberal phase of the 1990s. In the devel- opmentalist period, from the 1930s to the 1980s, the Brazilian government not only set priorities for industrialization in a top-down fashion, it also was a primary actor in industry. The state bureaucracy set goals; state-owned enter- prises played a central role in many sectors, including steel, mining, aircraft, automobiles, and banking; and the state development bank provided funding for areas deemed priority by government planners. Emphasis was on “catch- ing up” by building domestic industries. The new industries used imported technology and paid little or no attention to innovation.36 The state created tar- iffs and multiple exchange rates to control imports. Social policy was not fo- cused on redistribution or poverty reduction; social protection programs were elitist, designed to keep the industrial working class and the small middle class happy and managed in a clientelistic fashion.37 The 1990s saw a partial reversal of the developmentalist model with privatization, liberalization, dismantling of the instruments of industrial pol- icy, and tentative steps toward poverty alleviation. But when it took office, the Lula government decided the state needed to resume a more active role in industrial development and to take more aggressive steps to relieve poverty and reduce inequality. The Lula administration recognized that markets were necessary but not sufficient for inclusive growth. The state could do more to promote growth with equity, and it started to act more selectively and aggressively in the econ- omy. This shift away from neoliberalism was as notable for what it did not do as for what it did. When Brazil began to develop new forms of state activism, it did not renationalize former state-owned enterprises, impose price controls, create a top-down development plan, discourage foreign investment, default on international obligations, engage in deficit spending, or close its markets to foreign goods. Rather, it sought to maintain and benefit from openness by ensuring the competiveness of the domestic industry. Efforts focused on qualities, benefiting the better organized and remunerated in the formal and public sectors disproportionately, this segmentation is now much less acute than it has been for decades, and perhaps since the creation of the country’s first social benefits many decades ago. In 2010 inequality in Brazil reached its lowest level since measurement started in 1960.” 36 During the import substitution period, Brazil copied technology from developed countries. This was often manifested in the form of factories owned by foreign companies that located R&D and innovation outside Brazil with no obligations to transfer technology. That meant that Brazilian industry had a very low level of capacity for innovation. See Ignácio José Go- dinho Delgado, “Desenvolvimento, empresariado e política industrial no Brasil,” in Estado, Empre- sariado e Desenvolvimento no Brasil: Novas Teorias, Novas Trajetórias, 115–141 (M. A. Leopoldi, W. P. Mancuso, & W. Iglecias ed., Editora de Cultura, 2010). 37 Arbix & Martin, supra note 4 observe that “over the course of several decades, the statist model shifted resources from consumption to investment, limiting real wages and social spending and directing social spending in clientelistic fashion toward more organized seg- ments of society with an eye toward political stability and control.” Toward a New Law and Development 295 constructing new forms of industrial policy that emphasized innovation and partnership with industry. At the same time, an emphasis was placed on social policy and redistribution and the combination of social policy with industrial growth strategies. The Rise and Shape of NSA What explains NSA and why did it take the shape that it did in Brazil? What impelled the Lula government to reintroduce industrial policy? Why did it choose to emphasize innovation, engage with the private sector, and structure the program in a more bottom-up fashion? Why did NSA link industrial and social policy and refocus social policy toward poverty alleviation and reduc- tion of inequality? No one would claim that Brazil’s new form of state activism was planned from the start or that a clear or completely stable model has emerged. No mas- ter plan ever emanated from a government think tank or planning ministry. These policies evolved in a piecemeal fashion and are still changing. The Bra- zilian government has been feeling the stones as it crosses the river—recalling Deng Xaoping’s phrase—not following an existing blueprint. However, look- ing back over a decade of experimentation and policy evolution, one can see several factors that explain the decision to resume an active role for the state as well as the forces that affected the form this role would take. This section considers three of these factors: political opportunity, structural impediments to growth, and international and domestic constraints. Taken together, they exemplify the profile of what Arbix and Martin call “new state activism with- out dominance.” A Political Moment When Lula was elected in 2002, growth had slowed and unemployment was very high. The effects of globalization and liberalization were being felt, and Brazilian companies were losing ground. It is not hard to understand why a government led by the Brazilian Workers Party (PT), predisposed to state activism, would want to increase the role of the state in the economy. But the PT was not alone—this view was shared by at least part of the wider business community. Business in general and many industrialists in particular wanted a more activist state and more voice in government policy.38 Although the PT was ideologically committed to state activism, the busi- ness community looked to the state as a force that could reignite growth. Dis- satisfied by the effects of liberalization in the 1990s, powerful industrial groups (including the Federation of Industries of São Paulo, or FIESP) involved them- selves in the electoral process in 2002 with the objective of “opening space for 38 Shunko Rojas suggests that changes in the leadership of the Federation of Industries in São Paulo led to FIESP support for an expanded state role well before the 2002 election. Private communication with the authors, Aug., 2012. The World Bank Legal Review296 developmentalist ideas.”39 Industry had played an important role in the old development state, so at least some industrialists were comfortable with an increased role for the state as long as they had a voice in state policy. Although Lula’s first administration took cautious steps toward state ac- tivism, interest in a stronger role for the state grew during Lula’s second term (2006–10). In this period, NSA gained appeal, importance, and political sup- port from industrialists, unions, intellectuals, and academics. Brazilian econo- mist Antonio Barros de Castro suggests that the Brazilian elite realized that it needed to “deal with China.”40 He notes that trade liberalization and the rise of China led much of Latin America to abandon industry and refocus on natural resources. Due to the large size and central importance of its industrial sector, Brazil could not and did not want to take this route. Despite the mod- ernization of Brazil’s industry that had made it globally competitive in some fields, once China came on the scene, Brazil was no longer as competitive. At the same time, Chinese demand for natural resources drove up the value of the real, thus further handicapping Brazilian industry by increasing the cost of exports and lowering the cost of imported manufactured goods. The situa- tion worsened, leading to a slowdown in 2005 and a public outcry about the economic situation that generated calls for more action by the state. The turning point came around 2006. As a result of a political scandal, Antonio Palocci, Lula’s finance minister, was replaced by Guido Mantega, a heterodox economist and academic closely linked to Lula. Palocci was also closely linked to the PT, had maintained an orthodox approach to economic policy, and was closer to the financial sector than to industry. His replacement opened a window of opportunity for the industrialists represented by insti- tutions such as the National Industry Confederation (CNI), FIESP, and the Economic Institute for Industrial Development (IEDI), a business think thank, to push for policies that would allow them to recover and protect industrial chains dismantled during the 1990s, foster international competitiveness, and channel more state funds into infrastructure investments. Business support for neoliberalism, never so robust, declined, and its acceptance of state activ- ism increased. Jackson De Toni suggests that “Brazilian industrialists partly conceded in their unconditional defense of a minimalist agenda for the state in exchange for a political economy that would maintain the inherited stability and defend them against external competition, but would also revive public investments in infrastructure.”41 39 They “correctly understood Lula’s election as a mandate for a pro-growth strategy,” says James Martin Cypher. Brazil’s Development Strategy: Maintaining the Industrial Base, Side Step- ping the Staples Trap? paper presented at at the 2012 Congress of the Latin American Studies Association, San Francisco, California, 8, 2012. 40 See de Castro, supra note 6. 41 Jackson de Toni, Estado e empresários na política industrial brasileira recente: Processos de coopera- ção e mudança institucional, paper presented at IPEA CODE (2011), available at http://www. ipea.gov.br/code/chamada2011/pdf/area10/area10-artigo2.pdf (accessed Jul. 21, 2012). http://www.ipea.gov.br/code/chamada2011/pdf/area10/area10-artigo2.pdf http://www.ipea.gov.br/code/chamada2011/pdf/area10/area10-artigo2.pdf Toward a New Law and Development 297 In this context, continues De Toni, the Lula government created some new “arenas” for public-private coordination (including councils such as CDES, CNDI, and the so-called competitiveness fora) and new agencies (such as ABDI) in an attempt to ensure legitimacy while controlling the increasing de- mands of industrial entrepreneurs. At the same time it launched the Growth Acceleration Program (PAC) in 2007. PAC was designed to restart investment using the strength of public companies like Petrobrás to lead the process. Another factor that helped cement political support for state activism was the global financial crisis. The pervasive and worldwide failure of markets, which were deeply affected by financial disorganization, epitomized the crisis of deregulated capitalism and legitimized the adoption of alternative policies. This gave more support for the expansion of industrial policy and the grow- ing role of BNDES. The government adopted a rhetoric that stressed that the crisis was an opportunity for Brazil to gain comparative advantages, requiring proactive state action. When the financial crisis broke out in 2008, the Brazilian economy was seriously challenged by the lack of credit. Like many institutions in the United States and Europe, Brazilian financial institutions halted the supply of credit. This led to more pressure by the industrial coalition for action by the Brazil- ian state. As a result, BNDES was heavily capitalized so that it could play a countercyclical role in the economy. BNDES sharply raised its disbursements, thus galvanizing a national industrial sector already suffering from reduced competitiveness and an unfavorable exchange rate and now also buffeted by credit stringency. In general, because of the worldwide crisis, the Brazilian government was able to become more active in shaping the trajectory of eco- nomic development. Structural Elements What problems did policy makers face and respond to as they shaped NSA? Three structural features were important: • Major market failures that impeded economic activity, including a low level of investment in infrastructure and a lack of innovation • Long-standing Brazilian social concerns • The international embeddedness of the Brazilian economy and its need to spur competitiveness Market Failures: Innovation, Infrastructure, Financial Sector, and Competitiveness Major domestic market failures forced policy makers to face the low level of innovation in Brazilian industry. By the early 2000s, they had recognized that Brazilian industry had slowed down and believed that markets alone could not restart the growth process and that state intervention was called for. The national economy had had its last impetus of vitality in the 1970s, during the The World Bank Legal Review298 apogee of “old” development state policies. In that decade, Brazil underwent a second industrial revolution, acquiring a diversified industrial base. But the economy started to stagnate due to external and internal factors, and begin- ning in the early 1980s, the economy endured a long period of stagnation, in which growth slowed and Brazil fell behind the rapidly growing Asian tigers. One external factor was changing global capitalist accumulation patterns and the consolidation of a knowledge-based economy,42 which made indus- trial innovation essential for economic competitiveness. The internal reasons included Brazil’s failure to reshape the political economy and the legal- institutional structure that underpinned the old developmentalism based on an alliance among the state, foreign capital, and national capital.43 The state provided infrastructure, organized key sectors of the economy through state- owned enterprises, generated savings that could be used for new investment, and created regulations and incentives to protect and promote the private sec- tor. Foreign capital helped develop local industry using technology that had been created and perfected in advanced markets; sometimes this included bringing in equipment that had become obsolete at home.44 One effect of this arrangement was that the Brazilian economy was largely insulated from in- ternational competition. This, in turn, reduced the pressure for national inno- vation and the development of new technology: Brazil was limited to buying externally-generated technology. This helped slow the pace of development. Suzigan and Villela conclude: It was necessary to change not only to correct these problems, but also because there was [an awareness] that the country had reached the zenith of a historical development process (which many errone- ously described simply as import substitution). Once an ample and diversified industrial basis [had been built], it was necessary to make it efficient and competitive. It was also necessary to incorporate sectors and industries representing new technologies, particularly informatics and telecommunications, and to develop innovation ability, a crucial element in competition.45 During this time, Asian countries, noticeably South Korea and Taiwan, were on a brisk developmental pace, giving rise to a new round of growth based on knowledge, innovation, and reduction of poverty and inequality. Brazil and its Latin American counterparts lost vitality. One indicator is the 42 See Michael J. Piore & Charles F. Sabel, The Second Industrial Divide: Possibilities for Prosperity (Basic Books, 1984); and David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (Wiley-Blackwell, 1991). 43 Peter Evans, Embedded Autonomy: States and Industrial Transformation (Princeton U. Press, 1995). 44 See Lincoln Gordon & Englebert L. Grommers, United States Manufacturing Investment in Brazil: The Impact of Brazilian Government Policies 1946–1960 (Division of Research, Graduate School of Business Administration, Harvard U., 1962). 45 Suzigan & Villela, supra note 23. Toward a New Law and Development 299 relative success in patenting: Asians far surpassed Latin Americans in patents issued in the United States. Brazilian policy makers took steps to increase the rate of innovation in in- dustrial activity. Modest efforts to stimulate innovation began as early as 1999, but with the reintroduction of industrial policy in 2004, substantial resources were devoted to improving the overall climate for innovation; supporting re- structuring in targeted industries; and fostering the development of new areas of specialization considered relevant and potentially able to consolidate key industrial chains. Another structural barrier to growth was the low level of investment in infrastructure. The private sector was unwilling to invest in needed infra- structure expansion, and the state had not compensated for this deficiency. Although Brazil has one of the highest tax burdens in the world, public sector investment was relatively low, even by Latin American standards.46 The private financial sector played a large role in the structural economic failure in Brazil. Although it had grown in size and importance, the private sector still funded industrial expansion in only limited amounts. State banks, which date to the developmental period, filled the gap. When the Lula gov- ernment decided to implement a broader industrial policy, it looked to the state banks, especially to BNDES, to prove the capital and expertise needed for growth, innovation, and competiveness and to buffer the effects of the fi- nancial crises.47 Unlike other developing countries, Brazil did not dismantle its development bank in the 1990s, so that institution was available when the government decided to intervene more actively in the economy. Today, the state bank is the main source of long-term financing in Brazil and a key actor in the conception and implementation of industrial policy. The fourth structural problem that affected the emergence of state activ- ism is the side effect of the Plano Real. Undeniably, the Plano Real achieved its goal of ending runaway inflation. Since 1994, when the plan was im- plemented, inflation has been kept in check at around 5 percent per year. The problem, however, is that this plan is anchored in the interplay of two 46 José Roberto Rodrigues Afonso, Erika Amorim Araújo, & Geraldo Biasoto Júnior, Fiscal Space and Public Sector Investments in Infrastructure: A Brazilian Case-Study, 1141 Textos Para Dis- cussão IPEA (2005). Commenting on the infrastructure deficit in Brazil, Daniel Perrotti notes: “Although several factors were involved (such as high macroeconomic volatility, the lack of comprehensive policies and regulatory and financing issues), the effects of these physi- cal constraints are obvious and seriously threaten future development.” See The Economic Infrastructure Gap in Latin America and the Caribbean, 293 FAL Bulletin (2011), available at http://www.cepal.org/usi/noticias/bolfall/6/42926/FAL-293-WEB-ENG-2.pdf (accessed Jul., 20, 2012). 47 BNDES and the other major state banks have access to public (pension and treasury) funds, so their cost of capital is well below that of the private sector. BNDES also makes profits and raises funds in the capital market, besides offering substantial expertise; the bank has been financing the Brazilian industrial sector for 50 years and has developed detailed knowledge of many important sectors and close ties to industry that add to its advantages over the pri- vate sector. http://www.cepal.org/usi/noticias/bolfall/6/42926/FAL-293-WEB-ENG-2.pdf The World Bank Legal Review300 macroeconomic variables: interest rate and exchange rate. Whereas the in- terest rate is the main control against inflation, the exchange rate is directly influenced by the interest rate: if the interest rate is high, it attracts foreign investment, which results in an appreciation of the exchange rate. This has two direct consequences. First, the regulation of inflation by management of the interest rate creates side effects in the financial markets, inasmuch as appreciation of the value of the currency encourages investors—including foreign investors—to buy government bonds. This means that less money is available for the private sector. Second, the resulting appreciation of the ex- change rate affects domestic industry because it makes imports cheaper and exports less competitive. This situation put pressure on policy makers: in- dustry pressed for solutions that would lower the cost of finance and guard against deindustrialization. Industrial policy seemed like a way to handle both concerns. Social Concerns Social concerns shaped the development of NSA in Brazil, in particular four issues: poverty, social inequality, unemployment; and the tendency of wages to lag behind productivity. In 1981, 31 percent of the Brazilian population was living on less than US$2 per day. Other social indicators were negative: child mortality was high, life expectancy at birth was only 63 years, illiteracy was widespread, and many people had no regular access to sanitation and potable water.48 Econom- ic inequality was extreme. Brazil has been profoundly unequal and unjust for a long time: in 1990, the Gini coefficient was 0.6091. The degree of inequality is further aggravated when considering race and gender. Unemployment was also high: the rate of unemployment reached 10 percent in the early 1990s, and from the 1980s to 2000, unemployment was a crucial political issue.49 Educa- tion was also a problem: the education system did not produce the number of skilled people needed by a growing and competitive economy. Industrial poli- cies designed to spur technological upgrading were hampered by the lack of adequate human resources; people did not have the skills needed in a chang- ing labor market. The government recognized the need for job creation and skills upgrading in connection with social and welfare initiatives. Wage lag is another social issue in Brazil. Because of the large rural popula- tion in most Latin American countries including Brazil, a huge pool of under- employed workers depresses wage levels.50 As a result, domestic demand does not grow as fast as domestic production, thus hindering growth of the 48 Data in this section is taken from Mauricio Font & Laura Randall, The Brazilian State: Debate and Agenda (Lexington Books, 2011). 49 Id. Some observers put the effective rate as high as 20 percent. 50 This is what W. Arthur Lewis called development with “unlimited supplies of labor.” Toward a New Law and Development 301 domestic market. Economists stress the need for government action to offset this with an income policy that will bring wages up to optimal levels.51 International Embeddedness and the Need to Spur Competitiveness A third structural feature affecting the emergence of NSA was Lula’s decision to liberalize the economy and maintain openness. Although export promo- tion had been a development target since the 1960s, domestic industrialization dominated the governmental agenda until the 1990s. This situation changed with globalization and liberalization. In the 1990s, Brazil opened itself to in- ternational competition and began to actively pursue export markets, forcing the state to pay more attention to competitiveness. When Lula’s government took office, one of its first moves was to em- phasize the need for state action to encourage the solutions needed to main- tain competitiveness. This decision, brought about by the commitment to open economy policies, explains both the revival of industrial policy and the government emphasis on innovation. From PITCE through Brasil Maior, policies have focused on boosting the international competitiveness of Bra- zilian companies, including BNDES’s support for the internationalization of Brazil’s most competitive industries and various mechanisms to subsidize exports. Although the government has recognized the importance of com- petiveness and that maintaining openness to foreign goods is necessary to preserve competiveness, it has also taken measures to provide protection for domestic industries. Structural Elements: Conditioning Factors The stage was set for the government, led by the Brazilian Workers Party, to increase the role of the state in the economy. But why did Brazil’s role as a development state take the shape that it did? Why did Brazil opt for an in- novation-focused and collaborative public-private form of industrial policy rather than, say, renationalization as did Venezuela, Argentina, Ecuador, and Bolivia? Why was Brazil supportive of foreign investment in most sectors? This section discusses factors that influenced the choices Brazil has made in its search to help the economy regain dynamism and promote inclusive growth. Among these factors, four are especially important: • Constitutional considerations • The strength and scope of the private sector • International economic law and policy • Global financial markets 51 Bresser-Pereira, supra note 4 at 193. The World Bank Legal Review302 Constitutional Considerations The 1988 constitution influenced the choice of strategies and measures by mak- ing direct state control of industry both more expensive and less important than in the past. The new constitution protected property rights and regula- tory commitments, thus making renationalization of privatized industries an expensive proposition. It reduced the possibilities for corruption and for pri- vate capture of state power, thus increasing the government’s capacity to steer the private sector and provide control and accountability mechanisms for the public sector. This made state ownership seem less necessary. Finally, by creat- ing an open and democratic political structure, the constitution enhanced the power and participation of civil society, including industry, vis-à-vis the state. The Private Sector The size, complexity, and sophistication of the private sector in Brazil influ- enced the path of collaborative innovation-oriented industrial policy. The Bra- zilian economy includes many well-developed sectors and a growing capital market. Many firms are either at the global competitive frontier or close to it. Others have incipient capabilities. Many sectors accept the need for restructur- ing and continuous improvement. Many firms have the kind of deep knowl- edge essential for effective innovation even though they may not be able fully to utilize this knowledge without public incentives and support. It must have seemed much easier to create incentives for these firms to innovate and provide support for new private start-ups than to try to replace them with state-owned enterprises. At the same time, the size and scope of the private sector meant that once democracy was restored, the private sec- tor gained an important voice in public affairs. The private sector was eager to support an expanded role for the state as long as this support was offered in collaboration with industry and was appropriate to resume growth. Thus, Cypher notes: given the many endemic macroeconomic problems that had made the 1990s a period of slow growth in spite of the restructuring of industry, powerful industrial groups (including the Federation of Industries of São Paulo) involved themselves in the electoral process in 2002 with the objective of “opening space for developmentalist ideas” (Delgado 2010: 125) . . . the business federations—the organi- zations representing the interests of Brazil’s vast and diversified in- dustrial base—correctly understood Lula’s election as a mandate for a pro-growth strategy and as an indication that a structural change would occur opening-up channels of direct intermediation between the industrial sector and the new administration. . . . In short, there was a consensus between the PT and important fractions of indus- trial capital to reverse “the loss of the centrality of the State as an agent of accumulation.”52 52 See supra note 39. Toward a New Law and Development 303 International Economic Law and Policy World Trade Organization (WTO) law places restrictions on policies like ex- port subsidies and weak enforcement of intellectual property that had been used by the East Asian states, so Brazil had to work around these restraints or find ways to defend them. The Lula administration did a little of both by de- fending some heterodox policies and modifying others.53 Because it never rati- fied the Bilateral Investment Treaties (BITs) signed in the 1990s, Brazil did not encounter similar restrictions in international investment law. Nonetheless, because the government recognized that foreign investment was important for its innovation strategy and sought to encourage its own firms to invest in foreign markets, it followed many of the principles of the investment regime. Similarly, while Brazil’s export surpluses and growing reserves have made it less dependent on international financial institutions, Brazil has been influ- enced by the World Bank and other international financial institutions that promote market solutions but accept industrial policy as long as it respects comparative advantage and focuses on innovation. Global Financial Markets The Lula government decided to rely on foreign investment to help it reach and maintain international competiveness. It realized that classic protection- ism would threaten the availability of such investment, while an innovation- oriented and collaborative industrial policy offering selected benefits and in- centives to both foreign and domestic firms would be acceptable to investors. Other Influences on the Emergence of NSA Several other factors help explain the profile of Brazil’s NSA, including the in- creased professionalism of the state apparatus and bureaucracy, which made it possible to carry out industrial policy, and the rise of alternative economic theories that legitimized state activism. The macroinstitutional arrangement provided by the 1988 constitution contributed to upgrading state capacity and played an important role in NSA. In the past few decades, the Brazilian state has enhanced internal coordination, increased public-private collaboration, and learned how to better define policy mandates. Thus, NSA is partly the re- sult of institutional learning, through which the Brazilian state progressively acquired greater administrative capacity and the expertise needed to imple- ment complex and ambitious development policies. Until recently, the vast majority of public employees was appointed po- litically, weakening the public service ethos necessary to build a professional bureaucracy staffed by people with technical expertise who can administer 53 See Alvaro Santos, Carving out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico; and Michelle Ratton Sanchez Badin, Devel- opmental Responses to the International Trade Legal Game: Cases of Intellectual Property and Export Credit Law Reforms in Brazil, in Trubek et al., supra note 1. The World Bank Legal Review304 policies rationally and efficiently. There were some islands of excellence in public administration: some key institutions of developmental coordina- tion, such as BNDES, Petrobrás, Embraer, Embrapa, IPEA, and the Central Bank, were professionalized. But these cases were in stark contrast to the rest of public administration, which compromised state capability. This lack of professionalism changed with the 1988 constitution, which mandated the re- cruitment of public employees through public and official exams (concursos públicos). As a result, there has been a substantial increase in the percentage of public employees selected meritocratically. The constitution also regulates the ceiling of earnings, determining that the maximum wage should be no higher than that one received by members of the Supreme Court (Supremo Tribunal Federal). This rule was designed to limit public expense and curb discretionary distortions in the level of salaries. Although both meritocratic recruitment and wage policy face problems of en- forcement, they represent an improvement in terms of governmental quality. When the Lula administration began to expand the state’s role, it could count on a more professional workforce in government. Other measures helped enhance state capacity, making it easier to carry out the direction called for by NSA. The constitutional framework estab- lished in 1988 gave rise to policy initiatives designed to “implement rights” and “modernize” the state. New ministries were created, several others were reorganized, subministerial entities were added, and councils and commit- tees were formed to increase participation by business and labor. In addition, BNDES has played an increasingly important role in industrial policy. Changes in the world of ideas also facilitated NSA. With the turn to a more robust role for the state in the economy, and its particular profile in Bra- zil, there have been corresponding changes on the intellectual scene. Inter- nationally, more attention is paid to the positive role industrial policy might play, and the World Bank has endorsed certain types of industrial policy.54 Similar developments are occurring within Brazil as Brazilian economists seek to explain and guide the evolving new configuration. Brazil has also attracted the attention of theorists around the world who hope to create a new political economy of development.55 The academic focus has resulted in analytical tools and offers intellectual justifications that can help sustain policy experimentation. Some observers have labeled the emerging set of ideas “new developmentalism.” James Cypher describes this approach: On the one hand, New Developmentalism [rejects] prevailing ideas of neoclassical economics regarding a passive reliance on an export- 54 Justin Yifu Lin, New Structural Economics: A Framework for Rethinking Development (World Bank, 2012), available at http://siteresources.worldbank.org/INTVIETNAM/Resources/ Jtin.pdf. 55 For a detailed discussion of Brazil and new developmentalism, see David M. Trubek, Law, State, and the New Developmentalism: An Introduction, in Trubek et al., supra note 1. http://siteresources.worldbank.org/INTVIETNAM/Resources/Jtin.pdf http://siteresources.worldbank.org/INTVIETNAM/Resources/Jtin.pdf Toward a New Law and Development 305 led, resource-based economy [and agrees with]. . . . the original de- velopmentalist economists such as Rosenstein-Rodan, Hirschman, and Nurkse, and their emphasis on the centrality of a developmen- talist state. . . . On the other hand, New Developmentalism stresses a “growth with equity” approach along with an emphasis on indus- trial policy, highlighting public, growth-supporting, infrastructure spending, and a “neoschumpeterian” emphasis on building a na- tional innovation system through deep public-private cooperative programs that will drive investment expenditures toward produc- tivity-enhancing science and technology applications throughout the national industrial base of the economy.56 In Brazil, after the relative theoretical hegemony of liberal ideas associ- ated with the Washington Consensus in the 1990s, a burgeoning literature has lent support for NSA. This can be seen in two different fields: economics (both macroeconomics and microeconomics) and political science. In econom- ics, an important contribution has been research on the exchange rate and its effect on industrialization. According to the argument developed by Bresser- Pereira, there has been appreciation of the value of the real, leading to a “Dutch disease” effect that promotes deindustrialization.57 Due to the floods of dollars that have been reaching the Brazilian economy, the currency has be- come overvalued, with a negative effect on national industry. By showing that free market policies can lead to these negative effects, Bresser-Pereira and his colleagues created a rationale for an aggressive industrial policy. This criticism was accompanied by microeconomic studies that challenge the market-orient- ed model. These studies include sectorial and market analyses and document specific and pervasive market failures that require active industrial policies.58 In addition, microeconomists and political scientists have been providing inputs to social policy. Studies have demonstrated how economic inequality itself is a problem, detaching this problem from poverty. This sort of consid- eration has given impulse to the formulation of two different sets of social measures: poverty alleviation measures and instruments intended to reduce economic inequality more generally. 56 Cypher, supra note 39, comments that “As yet, New Developmentalism has not been rigor- ously defined. Some find that trial and error rather than the adoption of a coherent ‘model’ such as ‘new-developmentalism’ better describes the current conjuncture,” citing Arbix & Martin, supra note 4. 57 The “Dutch disease” refers to the effect of a commodities boom on industry. Increased de- mand for commodities leads to appreciation of the currency, which makes industrial exports less competitive. This occurred in the Netherlands with the discovery of natural gas. See Luiz Carlos Bresser-Pereira, The Dutch Disease and Its Neutralization: A Ricardian Approach, 28 Brazilian J. of Pol. Eco. 47 –71 (2008). 58 Two issues have been highlighted: failures in the market for innovation and gaps in the industrial chain. Studies conducted by Arbix & Pacheco and the Institute for Economic Ap- plied Research show the need for innovation policies, while Erber, Cassiolato, & Kupfer highlight gaps in supply chains that require government action. The World Bank Legal Review306 Challenge for Law What does the emergence of NSA mean for law, and vice versa? As the role of the state in the economy and social protection changes, there will be corre- sponding changes in law. And it seems possible that law will shape and chan- nel the path for policy innovation, as well as providing room for adaptation. This section outlines some general considerations about NSA’s challenges for law. Although it is easy to say that law and NSA must in some way be mutu- ally constitutive, it is another matter to say how NSA affects law and vice versa. Part of the problem derives from the complexity of the situation, and part from the paucity of empirical studies. Although abstract models of po- litical economy such as neoliberalism and new developmentalism suggest clear delineations, in the real world, policies are a mix of the old and the new, layered on top of one another, and sometimes contradictory. This complex- ity and contradiction at the policy level carries over into the legal domain: key legal variables are difficult to define and causalities involving changes in the law and in policy outcomes are blurred. As a result, studies on rela- tionships between the law and development policy present methodological challenges. This section focuses on methods for understanding these relationships, outlines some functionalities that NSA seems to demand, and provides a few examples of how law has responded to these functional needs. New Roles, New Frameworks of Analysis, New Functionalities NSA will generate pressures for new laws and new roles for law. Much will be straightforward: statutes will change, procedures will be altered. This has been occurring in Brazil for years. Laws created ABDI, MDS, Cadastro Unico, and other institutions that are central to Brazil’s NSA. Laws aiming at specific goals such as innovation and competiveness are also important. Although recognizing the importance of these legal changes, this section focuses on “new functionalities”—roles for law that have not been as important (or did not exist in Brazil) in the past and take on new importance with the emer- gence of NSA. Three sources were used to identify new functionalities and legal respons- es: research done by the project on Law and the New Developmental State (LANDS), of which this study is a part;59 other research on law and develop- 59 LANDS, the Project on Law and the New Developmental State, is coordinated by the Global Legal Studies Center at the University of Wisconsin, Madison with assistance from CEBRAP (the Brazilian Center for Analysis and Planning), and Los Andes University. Funding for LANDS was provided by the University of Wisconsin School of Law, the University of Wis- consin’s Center for World Affairs and the Global Economy (WAGE), and the Ford Foundation. Toward a New Law and Development 307 ment polices conducted in Brazil;60 and “reverse engineering.”61 Reverse engi- neering means starting with policies and programs, describing the functions associated with them, and seeing if law has contributed, or could contribute, to those functions. For NSA to be successful and new development policies to work, the government must maintain flexibility, orchestrate the relations among public actors and between them and the private sector, create conditions that will maximize synergy between actors, and preserve legitimacy. These functional needs point to new roles for law: if one isolates the role law can play in these new functionalities, one can identify four roles the legal system could play in NSA in Brazil: safeguard flexibility, stimulate orchestration, frame synergy, and ensure legitimacy. Safeguard flexibility means to use legal norms to allow room for experimen- tation, to promote innovation, and to facilitate feedback from experiments to policy. NSA demands legal regimes that permit learning by doing and that encourage path correction. Different from import substitution and neoliberal- ism, NSA requires the assurance of some degree of flexibility and learning to implement initiatives that in most cases do not resemble preexisting recipes or strategies; this is one reason why NSA employs “new governance” tools.62 Stimulate orchestration means to use law to structure state activities for ef- fective industrial and social policy. This means facilitating coordination and articulation within the state—both horizontally (that is, between entities that belong to the same bureaucratic state level) and vertically (that is, between entities that are subject to hierarchies or belong to different state levels). 60 Diogo R. Coutinho & Paulo T. L. Mattos, “Law and the New Developmental State: Brazil Pilot Project,” paper presented at the workshop “Law and the New Developmental State: Lat- in America and Beyond,” Global Legal Studies Center—Center for World Affairs and the Global Economy (WAGE), University of Wisconsin, Madison (2008); Fabiani, supra note 16; Roberto Pires, Promoting Sustainable Compliance: Styles of Labour Inspection and Compliance Outcomes in Brazil, 147 Intl. Lab. Rev. 199–229 (2008); Mariana Mota Prado & Ana Carolina da Matta Chasin, How Innovative Was the Poupatempo Experience in Brazil? Institutional Bypass as a New Form of Institutional Change, 1 Brazilian Pol. Sci. Rev. (2011); Mario Gomes Schapiro, Development Bank, Law and Innovation Financing in a New Brazilian Economy, 1045 L. & Dev. Rev.; Gregory C. Shaffer, Michelle Ratton Sanchez, & Barbara Rosenberg, The Trials of Win- ning at the WTO: What Lies Behind Brazil’s Success, 41 Cornell Intl. J. 2 (2008). 61 The idea of reverse engineering appears in David Kennedy, The Rule of Law, Political Choices, and Development Common Sense, in The New Law and Development—A Critical Appraisal (David Trubek & Alvaro Santos ed., Cambridge U. Press 2006), in the context of a discussion of the postwar consensus (1945–70). Kennedy reckons that although there was a clear demand for instrumental law during this period, the legal theory was implicit. In order to reveal it, he proposes, “We need to reverse engineer the legal theory of mainstream development profes- sionals from their economic and political projects, and from the attitudes toward law they manifested in managing developing policies within national administration. A great deal of law was required to translate the leading economic theories of development economic policy.” 62 For a thorough account of new governance and its legal functions and tools, see Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. (2004). The World Bank Legal Review308 Orchestration can consist of norms and procedures that assign institutional tasks and foster cooperative (rather than competitive) governance regimes, including rules that encourage government to work with the private sector. Also, it can mean supporting policy networks that share tasks and interact in a complementary way to implement policies; this can include defining pol- icy hubs. Finally, orchestration can mean using norms that harmonize new policies with preexisting ones to ensure coherence. Norms and processes playing these roles are crucial in NSA because it relies on the integration of different fields. Frame synergy involves using the law to frame public-private partnerships and ensure that they are more effective than purely public or private solu- tions. Such modalities include collaborative governance regimes that create incentives for public-private cooperation (through incentive alignment and/ or the use of private contracts by public entities), risk sharing,63 and hybrid instances in which public and private players regularly meet to interact and exchange opinions on regulatory and contractual instruments that bring pri- vate expertise and public financial capacity together. Ensure legitimacy means to keep government transparent and ensure ad- equate participation. NSA requires a regime in which it is easy for new ideas to percolate upward and be widely shared. This makes older authoritarian mod- els obsolete and increases the importance of democracy. Legal regimes must ensure accountability, transparency, and participation in development policies, which requires norms for disclosure, frameworks for participation, methods to hold policy makers accountable for results, and ways to avoid industry capture of government at the same time public-private dialogue is fostered. Developments in industrial and social policy illustrate how Brazil is deal- ing with these new needs and functionalities. Flexibility and Synergy in Industrial Policy The industrial policy promoted by NSA in Brazil is as much process as policy. It is part of a joint public-private discovery process, a collaboration through which partners experiment with different trajectories to identify products and processes that are optimal for individual firms and sectors as a whole. Ef- forts to encourage innovation through a full-scale partnership with the private sector move the state into new territory. For example, instead of traditional arms-length lending with well-defined goals set in advance, internationaliza- tion strategies for Brazilian companies and innovation financing call for sub- stantial flexibility, risk sharing, and alliances—this requires legal innovation. One area in which this is occurring is BNDES’s program to foster inno- vation that replaced its traditional form of fixed obligation loan agreements with a variety of flexible devices that support collaboration and experimen- tation. The tools developed for this purpose represent a break in BNDES’s 63 Coutinho & Mattos, supra note 60. Toward a New Law and Development 309 legal pattern: the bank relies on flexible legal structures that, formally or in- formally, support a financial relationship that permits changes of trajectory and adaptation of plans. These legal tools include partnerships with techno- logical institutes and grants to promote the development of new products; relational loan contracts that include nonbinding performance criteria, staged disbursements, and constant BNDES monitoring through shared governance mechanisms; equity investments coupled with shared governance established through shareholder agreements that give BNDES a seat on the board and that subject certain corporate decisions to its approval; and arrangements by which BNDES participates on the investment committee of venture capital funds that it assists.64 Other new legal mechanisms connected with industrial policy include risk sharing with the private sector, soft law, and special public-private part- nerships. Risk-sharing agreements are designed to encourage private inves- tors to increase investments in technological research and innovation, expand industry capacity and exports, and acquire assets abroad in order to exploit comparative advantage in sectors where Brazil is a global leader. Soft law has also been used to induce investment. For example, governmental letters of intent communicate public investment strategies and serve as signals for the private sector, inducing private investment decisions. Other tools that create incentives for private companies to innovate include public-private partner- ship contracts, cooperation agreements between government and research centers, and flexible private law contracts (credit contracts, shareholder and investors agreements) between government and corporations. Orchestration and Decentralization in Social Policy Brazil has sought to strengthen its welfare state through cooperation among the several levels of government in the federation. It also brings together dif- ferent types of social policies to deal with major problems. This requires a continuous orchestration of different levels and types of policies (universal and targeted, federal and local, contributive and noncontributive). Thus, the government has found new uses for old administrative law tools and created new instruments. This strategy can be seen in BFP, which uses a registry for all social programs (Cadastro Único) and a decentralized management index (IGD) to coordinate the work of several ministries, local administrators, and other public actors and to encourage policy innovation. BFP uses conditionali- ties—obligations of recipients for child education and health—that it enforces through revisable regulatory rules such as ordinances. It employs the Cadas- tro Único to gather data and reduce asymmetric information with the purpose of expanding education and health coverage. It also adopted a carrot-based 64 Mario Schapiro, Rediscovering the Developmental Path? Development Bank, Law and Innovation Financing in the Brazilian Economy, in Trubek et al., supra note 1. Although the bank’s inno- vation funding clearly represents a new form of state activism and new approaches to law, Schapiro emphasizes that the program represents a tiny portion of the bank’s total portfolio, and it is unclear whether this segment of the program will expand in the future. The World Bank Legal Review310 federal arrangement through the use of financial incentives such as IGD to get municipalities to gather data on very poor families. In addition, IGD aims to encourage Brazilian cities to deliver effective performance, employing funds to reward those who provide dependable and quality information, maintaining updated data in the Cadastro Único, and providing information on the effect of the health and education conditionali- ties. BFP uses contractual arrangements with cities to ensure that they set up local agencies of social control and participation. These agencies receive IGD funding to support the BFP management and develop activities with recipi- ent households, including managing conditionalities and benefits, monitoring recipient households, registering new households, updating and reviewing data, implementing complementary programs for basic adult literacy, provid- ing occupational training, creating jobs and income, stimulating regional de- velopment, and strengthening BFP’s social control. This system has led to a more collaborative (rather than imposed) and flex- ible (rather than based on rigid rules and sanctions) relationship between the federal and local levels.65 Such an articulation fosters decentralization (with federal guidance, steering, and expertise) and is the result of a broader picture in which, although universal programs remain central, “targeting within uni- versalism” has been fostering development outcomes. Experimentation and Synergy in Labor Law In a study of new approaches to the enforcement of labor laws in Brazil, Rober- to Pires shows that labor inspectors using flexible and reflexive experimental- ist governance approaches had more success than their peers who employed more traditional management tools.66 The study compares two different styles of enforcement: one, drawn from the theories of the new public management stresses, specific targets and quotas67; the other, which draws more on the ex- perimentalist governance literature, stresses public-private cooperation, dia- logue, exploration of options for compliance, careful analysis of the causes of violations, and revision of goals and standards as mutual learning progresses. Pires shows that through a system of hybrid governance that employs exper- imentalist methods while keeping sanctions in the background, health and safety inspectors in Pernambuco are able to significantly reduce the incidence of industrial accidents. The key to this success, Pires suggests, is creating institutions that allow interaction among government, business, and labor; encourage the search for 65 Diogo R. Coutinho, Decentralization and Coordination in Social Law and Policy: The Bolsa Familia Program, in Trubek et al., supra note 1. 66 Roberto Pires, Promoting Sustainable Compliance: Styles of Labour Inspection and Compliance Outcomes in Brazil 147(2–3) Intl. Lab. Rev. 199–229 (Jun./Sep. 2008). 67 New public management refers to the idea, and consequent policy prescriptions, that market- oriented management of the public sector will lead to greater cost efficiency for govern- ments. It gained its momentum during the 1990s. Toward a New Law and Development 311 ways companies could revise their business plans to comply with the law and still prosper; and facilitate experimentation with new technologies that might reduce risks of accidents at low cost. He notes that because of the success of these methods, the experimentalist model has been scaled up to the federal level. Although Pires does not relate his study and the growth of experimen- talism in governance directly to the new political economy of development or how the Brazilian government is redefining its role in that development, the affinity between the development literature and changes in public administra- tion seems clear. Building Legal Capacity for Development: Trade Law In addition to adapting law to deal with functionalities demanded by NSA, Brazil has built the legal capacity needed to shield the new industrial and so- cial policies from restrictions that might be imposed by international law and policy. Built into NSA are policies that challenge some orthodox prescriptions backed by international economic law, including restraints on export subsi- dies and stricter protection of intellectual property. The clearest example of this kind of legal response is in the field of trade law.68 When it initially joined the WTO in 1995, Brazil accepted the full package of WTO agreements without first determining to what extent they might clash with domestic policies and priorities. But as neoliberal enthusiasm waned, successive administrations protected domestic policy space by challenging restrictive interpretations of global trade rules. This growing willingness to challenge WTO-based restrictions is a result of changes in development policy and in the way trade policy is formulated in Brazil. As the state began to play a more robust role in the promotion of economic growth and social protec- tion, trade policy making became more closely integrated with overall devel- opment policy, and Brazil invested in the legal and related skills needed for success in trade disputes. At the same time, the arena for discussion of trade policy expanded as more government agencies began to participate and the private sector and a flourishing civil society movement entered the debate. As a result, Brazil has been able to use trade law as a shield for policy innovation. In the case of intellectual property, Brazil was able to carve out space within the regime for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that allowed it to negotiate better prices for antiviral drugs. Although initially it seemed that TRIPS would preclude this kind of ac- tion, a number of changes in law, politics, and government organization at the domestic level, as well as action in the international arena, strengthened the Brazilian government’s capacity to shape domestic health policy in the face of international constraints. The judiciary entered the arena to enforce a 68 See Alvaro Santos, Carving out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico; and Michelle Ratton Sanchez Badin, Devel- opmental Responses to the International Trade Legal Game: Cases of Intellectual Property and Export Credit Law Reforms in Brazil, in Trubek et al., supra note 1. The World Bank Legal Review312 constitutional right to health, administrative changes were made that opened trade policy discussions to a range of interests, and the legislature was mobilized. Specific legal changes at the domestic level included reforms of the legal system in order to eliminate TRIPS-plus provisions; authorization for use of flexibilities such as compulsory licenses; the approval of new mechanisms im- plicitly authorized by the international system that favor access to technology; and the creation of new government institutions that could serve as counter- vailing powers to industry interests in the patent approval process. Brazil and other developing countries carried on a campaign at the international level that led the WTO and the World Intellectual Property Organization (WIPO) to take a more supportive stance toward the use of policy in this field. Brazil has been able to legally protect domestic trade policy from WTO restrictions. As part of its new industrial policy, Brazil sought to build Embraer into a national champion and facilitate efforts to develop market share in the global regional jet market. Government financing is an essential part of any deal for aircraft manufacturers, and Embraer had been hampered by the high cost of finance available to Brazilian companies. The government decided to provide a subsidy to the institutions that provided finance for Embraer sales. Canada’s Bombardier challenged this practice as a violation of the WTO sub- sidies code. After a long and drawn out litigation, Brazil was forced to make changes in its subsidies. But through a partially successful campaign that drew on the growing capacity of government and industry working together in the trade law field, Brazil was able to preserve part of the subsidy program and shift the issue of aircraft financing terms into the Organization for Economic Cooperation and Development (OECD). By moving the issue to the OECD, Brazil gained a voice in the main forum affecting global rules for aircraft fi- nance. This meant it has a say in the terms affecting its competitors and thus more bargaining leverage in the continuing dispute with Bombardier. Conclusion: Assessing the Brazilian Experience in Development Policy and Law The Brazilian foray into NSA is a work in progress. Policies are altered as domestic and international conditions change. Industrial policy seems to be working and is helping the country both weather the storms from the global financial crisis and resume economic dynamism. World markets have accept- ed this trend, and foreign investment has soared. Significant gains have been made in poverty alleviation and the reduction of economic inequality. Yet questions remain. Is a coherent model of a new development state emerging, and is Brazil’s new state activism likely to become consolidated? Does the government have the capacity to manage and implement the ambi- tious set of processes and policies that have been put in place? Can Brazilian institutions develop and sustain the new roles demanded by NSA? Finally, is the Brazilian experience unique to that country, or can it be replicated? Toward a New Law and Development 313 A New Development State? Although the current situation in Brazil is described here as NSA, a discussion of a “new Brazil model” in the sense of a coherent and stable configuration of state, law, and political economy would be premature. Brazil is experimenting with a variety of new policies and procedures. Many of them have yet to stand the test of time. But the trends show continuous movement toward a set of policies that could cohere into a sustainable model. A new form of industrial policy stressing state assistance for innovation and competitiveness in the pri- vate and public sectors is in place and has been combined with a robust social policy. The commitment to NSA has lasted for more than a decade, through two presidential elections. President Dilma Rousseff has deepened the gov- ernment’s commitment to the new industrial and social policies. Does Brazil Have the Capacity to Manage and Implement the New Policies? NSA places great demands on the state, which must be able to assist the private sector without stifling it. It must make choices among sectors, industries, and firms in the public interest. Complicated decisions involving massive sums of money require both technical expertise and distance from special interests. Through a series of reforms, the Brazilian state bureaucracy is more profes- sional today than it was in the past. But this is not true everywhere, and in many areas inefficiency, bureaucratic rigidity, or both, persist. Finally, the risk of corruption and capture is always present. Some measures have been taken to limit corruption; although new anticorruption laws and agencies have been created, corruption remains a problem in Brazil as elsewhere. Can the Brazilian Legal System Meet the Needs of NSA? Brazilian law can contribute to the operation of the new policies and proce- dures under NSA. In at least a few cases and a few areas, new legal tools are being created and old ones are being put to new use. The legal system has the capacity for innovation that new developmentalism demands. But it is not clear that this is happening—or will happen—in all the areas where change is needed. The cases that have been studied suggest it is possible, but they are too limited to warrant a conclusion. For that to happen, many rigidities and obstacles in the Brazil legal system must be overcome. Is the Brazilian Experience Unique, or Can It Be Replicated? There is no question that other nations can learn from the Brazilian experi- ence in development policy. The approach to industrial policy that assists the private sector and fosters structural changes needed for competiveness can be followed in other countries. The potential for using a state development bank as an engine of innovation and growth also provides lessons that can be replicated. Brazil’s successful merger of industrial policy and social policy is worth further study. The same can be said for the Brazilian experience in law and development. To the extent that countries adopt aspects of NSA, they will The World Bank Legal Review314 need to adapt their legal system to new functionalities and can learn from the way Brazil has developed legal institutions that address these needs. That does not mean, however, that the Brazilian experience has resulted in a template that can be followed by everyone, everywhere. The account pre- sented in this chapter has stressed the contextual features that explain Brazil’s turn to NSA, such as a large, well-developed industrial sector, advanced re- search centers, a huge domestic market, a democratic constitution, a profes- sionalized bureaucracy in key agencies, a long history of state involvement in the economy, and some transformative capacity in legal institutions. Because the development of NSA in Brazil is based on these contextual features, NSA in the Brazilian form will not be easily replicated in countries that lack any or all of these features. The Role of the Public Ministry in the Defense of the Environment Hydrogeographical Regions and Attitudes for Coping with Socioenvironmental Conflicts Luciano Badini and Luciano aLvarenga The Brazilian Constitution of 1988, the first constitutional text since the fall of the Brazilian military dictatorship, devotes significant attention to the idea of democracy. The constitution entrusts the Public Ministry, a permanent institu- tion that is crucial to the jurisdictional function of the state, with the defense of the legal order, the democratic regime, and so-called metaindividual interests and rights—rights belonging to society as a whole. The protection of the en- vironment, claimed as a common possession for use by the people and recog- nized as essential to a healthy quality of life for current and future generations (Article 225), is a metaindividual right. The defense of rights fits into the larger scope of implementing the essen- tial principles of the Federative Republic of Brazil. As Marcelo Goulart reflects: The strategic goal of the Public Ministry is to defend the project of participative, economic and social democracy outlined in the 1988 Constitution through achievement of crucial objectives for the Re- public, synthesized in Article 3, from Section I to IV (construction of a free, fair and solidary society in which cultural and socio-economic development should be directed towards the eradication of poverty and marginalization, thus reducing social and regional inequalities and promoting the welfare of all). In order for the Public Ministry to fulfill this task, the Brazilian Constitu- tion gives it legitimacy to adopt measures of civil and criminal liability against the violators of environmental rules.1 The authors would like to thank Mr. Matt Moorhead, the editors of this volume, Dr. Nigel Quinney, Gustavo Abreu, and Alessandra de Souza Santos, who collaborated on the techni- cal revision and translation of this text. 1 M. Goulart, Princípios institucionais do Ministério Público: A necessária revisão conceitual da unidade institucional e da independência funcional MPMG Jurídico, 14 Belo Horizonte 13 (Oct./ Dec. 2008). 315 The World Bank Legal Review316 The expansion of the power of the Public Ministry and other public agen- cies to protect the environment is vital in a country undergoing intense eco- nomic development. The use of law as a means of environmental protection is a way to compensate for the negative impacts of the increasing demand for natural resources. In this sense, the constitution of 1988 established “state activism” in regard to ecological matters in Brazil.2 According to the 1988 constitution, the Public Ministry’s functions are to promote, on an exclusive basis, public criminal action and to institute civil in- vestigations and public civil actions for the protection of the environment and other metaindividual interests. As the legitimate defender of these interests, the Public Ministry plays the role of “society’s attorney” even against the state itself, because, in the Brazilian legal system, the Public Ministry is assured of operational independence. Thus, the Public Ministry is a public institution, attached to the state, but, as constitutional defender of society’s interests, it is independent from the state. This feature guards against any forms of viola- tion of metaindividual rights, including violations committed by agents of the state. Goulart notes that the operational independence of the Public Ministry “is a social guarantee because it was created to give people security of having a political agent which, while acting for the defense of social interests, can work independently, immune to the pressures of power.”3 This chapter looks at the ways in which the Public Ministry, and espe- cially the Public Ministry of the State of Minas Gerais, has used innovative legal mechanisms to address and resolve environmental and social conflicts. The chapter focuses in particular on a successful initiative to reorganize the ministry’s environmental work so that it corresponds to natural, rather than administrative, boundaries. The Problem-Solving Public Ministry: The Extrajudicial Activities of the Public Ministry The Public Ministry has the power to resolve environmental conflicts without demanding the intervention of the judiciary. This power is exercised via two instruments: • A recommendation, through which the Public Ministry sends the state guidelines to improve the provision of a service of public interest • A “conduct adjustment,” a type of out-of-court settlement through which a person or company that has put at risk or has caused damage to the public interest (for example, environmental quality) assumes obligations 2 This chapter is based on a draft of a chapter from a forthcoming book tentatively titled Law, State, and Development: New State Activism in Brazil in Comparative Perspective and edited by David Trubek, Helena Alviar, Diogo Coutinho, and Alvaro Santos. 3 Goulart, supra note 1, at 12. The Role of the Public Ministry in the Defense of the Environment 317 to cease the illegal activity, to conform conduct to legislation, and to repair damage done The out-of-court settlement, known as a term of conduct adjustment (TCA), has helped remove red tape from the processes of environmental con- flict resolution, which are frequently complex, thereby avoiding court dis- putes that could drag on for years. The Public Ministry thus plays a problem- solving role: it offers quick responses consistent with the socioenvironmental demands of the society. The Drainage Basin as a Territorial Unit for Analysis, Planning, and Action An analysis of socioenvironmental processes and planning strategies cannot be isolated from the context of the natural systems in which they occur. In this context, the drainage basin is suitable for an investigation that aims to integrate physical, biotic, social, cultural, and economic aspects, providing an understanding of the ways in which different environmental aspects—such as vegetation cover, geology, and agricultural production systems—interact.4 Drainage basins are multilevel systems that encompass political, economic, and cultural practices and as such are an important environmental and social area for analysis and planning. As Francisco Barbosa, João Antônio de Paula, and Roberto Monte-Mor comment: [A] “basin” has considerable merit as a physical and economic unit for analysis. Actions or policies external to the “basins” (pricing policies, for example) can have important effects within a system defined in them, and an economic analysis, even incorporating the issue of welfare, can capture only a part of the relevant interactions within the system. Appropriate management requires, therefore, that the basins be considered as “multilevel” systems that include water, soil, and sociopolitical components, internal and external. Thus, a typical “basin” would consist in the overlap of natural and social systems. The natural system would be defined on aquatic and terrestrial (fauna, flora, water resources, and minerals) bases. The social system would determine how these bases are used. Govern- ment policies as an extension of social and institutional organization influence local patterns of using natural resources.5 4 R. G. M. Botelho, Planejamento ambiental em microbacia hidrográfica, in Erosão e conservação dos solos: Conceitos, temas e aplicações 269–300 (A. J. T. Guerra, A. S. Silva, & R. G. M. Botelho ed., Bertrand Brasil 1999); and F. V. F. Castro, L. J. Alvarenga, & A. P. A. Magalhães Jr., A Política Nacional de Recursos Hídricos e a gestão de conflitos em uma nova territorialidade, 1(1) Geografias, Belo Horizonte 37–50 (2005). 5 F. A. R. Barbosa, J. A. Paula, & R. L. M. Monte-Mor, A bacia hidrográfica como unidade de análise e realidade de integração disciplina, in Biodiversidade, população e economia: Uma região de Mata Atlântica 258 ( J. A. Paula coord., UFMG/Cedeplar/ECMXC/PADCT/CIAMB 1997). The World Bank Legal Review318 Brazilian law recognizes the drainage basin as the territorial unit for envi- ronmental planning, management, and analysis. Law 8,171/1991, which con- cerns agricultural policy in Brazil, states, “The drainage basins constitute the basic units for planning [for] the use, conservation, and recovery of natural resources” (Article 20). Law 9,433/1997, known as the Water Law because it established the National Policy of Water Resources, also focuses on the drain- age basin as the territorial unit (Article 1, Section V). Although the Water Law presents several innovations, such as the adop- tion of socioenvironmental parameters, its application, like the application of environmental laws in general, has been marked by conflicts. Some of them derive from the coexistence of territorial units corresponding to the adminis- trative units of Brazil’s federation (union, member states, municipalities, and Federal District) with the natural divisions of drainage basins and ecosystems that they encompass. In other words, the geographic areas covered by the ad- ministrative units do not correspond to the geographic area of drainage ba- sins. As Jorge Thierry Calasans et al. point out: [B]ecause the implementation of water resources management by basin does not coincide with the political-administrative division of the country, it creates a potential conflict between the entities that are part of SINGREH [National System of Hydric Resources Man- agement]. The so-called water resources management agencies must now give up their administrative autonomy over the management of water resources in the state’s territory to share their autonomy with the new deliberative body represented by the Basin Committees.6 Similar conflicts have been identified regarding the environmental protec- tion provided by the Public Ministry. The Public Ministry is organized, like the judiciary, by counties, which creates several obstacles to prosecutors’ work to protect environmental and water resources. These obstacles are identified by Antônio Herman Benjamin and include • “County likeness,” the concept that environmental and water resources can be safeguarded using the geographic and legal organization into counties, despite the fact that this method of organization is incompatible with the natural division of the natural systems. • “Spontaneism,” which prevents proactive and prospective action by the Public Ministry, whose work is reactive and retrospective. Thus, ministe- rial intervention is “always hostage to the degradation which has already occurred or is just about to occur, subjugating the institution to the fait accompli dictatorship.” • “Lack of specific techniques for the correct interpretation of environ- mental issues,” which substantially restricts activities by the prosecution offices in defense of the environment. Lacking technical and scientific 6 J. T. Calasans et al., A Política Nacional de Recursos Hídricos: Uma avaliação crítica, in Congresso Internacional de Direito Ambiental 7°, Anais 585–602 (Imprensa Oficial 2003). The Role of the Public Ministry in the Defense of the Environment 319 resources, the prosecution offices have problems identifying and measur- ing complex environmental problems. • “Generalism,” which hinders the expertise of prosecutors with regard to knowledge of environmental law, “hampering the implementation of en- vironmental legislation and providing an inadequate service to our cus- tomers, the community, and the future generations.” • “Isolationism,” which precludes the “efficient use of the institution’s ener- gies, leading to a shortsighted implementation, if not devoid of any real practical results, because it lacks the overall vision,” that is, the view on the drainage basin to be protected as a whole.7 Benjamin is convinced that “environmental problems recognize neither the historic strength of the criterion of administration of the jurisdictional rules that guide the division of the state into counties, nor the political frag- mentation of the territory.”8 Proposals for the territorial reorganization of the Public Ministry in the interest of environmental protection are gaining ac- ceptance. The idea that ministerial action should have drainage basins as a basis—that action should be taken not on the basis of political units (coun- ties) but on the basis of hydrogeographical regions (drainage basins)—would foster, in geographical and socioenvironmental terms, a more comprehensive view of ecological problems and their socioeconomic and cultural constraints and implications. It would also encourage the development of ecologically ef- fective solutions that are socially appropriate. The Public Ministry of Minas Gerais State (MPMG) pioneered the imple- mentation of a drainage basin approach. In 2001, with the support of the federal government, MPMG created the Prosecution Office of the Rio Sao Francisco Drainage Basin and started planning and enforcing actions to pro- tect natural and water resources associated with Rio Sao Francisco, consid- ering the drainage basin as a whole. Before that, MPMG actions occurred in a fragmented way throughout the several counties (administrative geo- graphical divisions, as opposed to natural ones) in the state. The Prosecution Office of Rio Sao Francisco is subdivided into five regions devoted to the preservation and restoration of natural and water resources from the drain- age basin. In 2009, this working model was extended to all other basins and sub-basins within the territory of Minas Gerais state, effectively coordinat- ing regional prosecution offices in their work to defend the environment. This reorganization of MPMG received social and institutional recognition in Brazil when it was awarded the Innovare Prize in 2010 in the Public Min- istry Award category. 7 A. H. Benjamin, Um novo modelo para o Ministério Público na proteção do meio ambiente, 10 Re- vista de Direito Ambiental 7–13 (Apr./Jun. 1998). The quoted material is from page 11. 8 Id., 10. The World Bank Legal Review320 Conflict Resolution and the Promotion of Environmental Quality Using the drainage basins of Minas Gerais as its basis and applying a problem- solving approach, the reorganized MPMG has been effective in resolving environmental conflicts in the state, as evidenced by a number of programs. Between November 2008 and November 2011, prosecutors considered a total of 13,906 cases but submitted only 4,795 of them—that is, just 34 percent —to the courts. Conflict resolution through the formalization of out-of-court settlements, employing TCA, was used in 66 percent of cases (9,111 proce- dures). MPMG was involved in the defense of protected areas (53 percent of TCAs), the repair of environmental damage (22 percent), pollution control (8 percent), the protection of wildlife (3 percent), and the control of irregular mining (2 percent). MPMG thus expanded its conflict-resolution role by implementing a set of extrajudicial techniques geared specifically toward the negotiation of environ- mental conflicts involving the protection of metaindividual and unavailable rights. In parallel, it instituted environmental damage valuation as a refer- ence for the evaluation of “ecological compensation”—in other words, for an evaluation of procedures aimed at the improvement of environmental well- being according to the provisions of the Brazilian Constitution (Article 225, paragraph 1, Sections I, II, and VII) and the National Environmental Policy (Federal Law 6,938/1981, Article 2, Sections I, II, IV, VIII, and IX, and Article 4, Section VI). It is difficult to translate into monetary terms the damage that environ- mental degradation can cause. Such degradation has multiple, cumulative, and synergistic impacts. Many valuation methods exist, but none can cope with the diversity and variety of the damage caused. The inability to predict the value of compensation for environmental degradation hinders the adop- tion of agreements. For this reason, ecological compensation has become the most appropri- ate way to solve many socioenvironmental conflicts, especially in regard to the need to restore the damaged area. Ecological compensation also helps the company responsible for the damage to determine how to conduct its future activities so that it abides by the law, in the sense that by being held respon- sible for ecological damage, the company will be reeducated in environmen- tally friendly ideals. Serra da Moeda An example of the success of this approach can be seen in the Serra da Moeda (Mountain of Money) case. As a result of the decisions made in this case, a mining company whose activities could have caused serious damage to the environment stopped extracting ore in areas relevant to biological diversity conservation. These areas were turned into “conservation units”—that is, areas given special protection by environmental legislation. The Role of the Public Ministry in the Defense of the Environment 321 In the Serra da Moeda, a mining company sought to carry out activities in an area believed to have high environmental value. The ensuing debate revolved around the question of how one can reconcile environmental preser- vation with the generation of jobs and income, considering the socioeconomic development of the region, in accordance with Federal Law 6,938/1981, Ar- ticle 4, Section I. MPMG defined the area that would be crucial to environmental preserva- tion. No mining activities—indeed, no human activities that cause environ- mental damage—would henceforth be allowed in this area. Following careful studies, the company identified other areas in which it wanted to mine and presented an initial schedule for the extraction of ore. Subsequently, the com- pany submitted to a regular environmental licensing process, carried out by Minas Gerais State, obtaining an authorization for mining in the areas defined as exploitable in the agreement signed by the Public Ministry. Oasis The Oasis project is another example of MPMG’s role as a protector of the environment. This project was implemented through an agreement signed in 2011 by the Public Ministry and a mining company from the town of Bru- madinho. In the course of a civil investigation, MPMG found evidence of en- vironmental damage and quantified the environmental compensation. The compensation consisted of payments to 75 small producers around the min- ing venture whose farms included Permanent Preservation Areas (PPAs)— for example, river banks and hilltops—and Legal Reserve Areas—portions of property deemed necessary for the sustainable use of natural resources, biodi- versity conservation, shelter, the protection of native flora and fauna, and the preservation of the quality, amount, and circulation of water resources in the environment. In partnership with the Foundation O Boticario, MPMG developed a methodology to specify the monthly amount to be paid to each farmer, as well as an efficient system of inspection that demonstrated whether benefi- ciaries were afforded adequate funds to maintain the Legal Reserve and the PPAs. The partnership between MPMG and the foundation is innovative: this is one of the first projects in this state based on payment for environmental services (PES). It also contributes to social and environmental justice because it remunerates farmers who contribute to the implementation of environmen- tal legislation. Belo Horizonte A third example of MPMG’s expanded role involves the protection of the quality of life in the urban environment. In 2011, entrepreneurs from the real estate market in the southern section of the Minas Gerais capital, Belo Ho- rizonte, signed a breakthrough agreement with MPMG. The civil building sector has a number of negative consequences with regard to the quality of urban environment, especially for urban mobility, and it increases demand The World Bank Legal Review322 for public services. Again, environmental compensation was the solution: 20 entrepreneurs committed themselves to a road construction project in the neighborhood, considered a priority by the associations of local residents. The agreement with MPMG was made with input from Minas Gerais State and the consent of the city of Belo Horizonte, representing the local commu- nity. Thus, there was a widespread effort to improve the quality of life in the urban environment. Conclusion The Public Ministry, notably in Minas Gerais State, has distinguished itself as an institutional defender of Brazil’s environment. It enhances the effectiveness of the state’s response to various types of socioenvironmental conflicts in two major ways: it prioritizes conflict-resolution work—that is, work that does not require the intervention of the courts; and it recognizes the need to reconfigure the territorial organization of institutions so that they are consistent with the organizational pattern of the natural systems. The Public Ministry has thus been able to expand access to justice and to implement the laws that protect natural and water resources in Brazil. 323 OHADA Nears the Twenty-Year Mark An Assessment Renaud BeauchaRd On October 17, 1993, in Port Louis, Mauritius, 14 African heads of state signed a treaty creating the Organization for the Harmonization of Business Law in Africa, or Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA). The treaty came into force on September 18, 1995, and its signato- ries now number 17 member states.1 Designed to modernize and harmonize business laws with the ultimate goal of increasing domestic and foreign trade and investment, OHADA constitutes a unique experiment involving the legal integration of states participating in different economic, trade, and monetary unions.2 Almost two decades after the Port Louis treaty was signed, this chap- ter evaluates the initiative.3 That task is not made easier by the fact that little empirical evidence sug- gests that OHADA has had a beneficial effect on the economies of the member states, all of which are lower-tier countries crippled by structural problems and most of which have experienced numerous calamities since the creation of OHADA, including humanitarian crises, military coups, and the collapse of democratic governments.4 The main issues analyzed here are whether any cor- relation can be identified between the good and bad fortunes of the OHADA member states and OHADA itself and whether OHADA can provide a work- able basis for attracting investment in its member states. OHADA was first conceived of during a meeting of finance ministers of the members of the Communauté Financière Africaine5 held in Ouagadou- 1 In order of ratification, the OHADA member states are Guinea-Bissau ( Jan. 15, 1994), Senegal ( Jun. 14, 1994), Central African Republic ( Jan. 13, 1995), Mali (Feb. 7, 1995), the Comoros (Feb. 20, 1995), Burkina Faso (Mar. 6, 1995), Benin (Mar. 8, 1995), Niger ( Jun. 5, 1995), Côte d’Ivoire (Sep. 29, 1995), Cameroon (Oct. 20, 1995), Togo (Oct. 27, 1995), Chad (Apr. 13, 1996), the Republic of Congo (May 28, 1997), Gabon (Feb. 2, 1998), Equatorial Guinea (Apr. 16, 1999), Guinea (May 5, 2000), and Democratic Republic of Congo ( July13, 2012). See http://www .ohada.org/etats-parties.html. 2 The Economic Community of West African States (ECOWAS), the West African Economic and Monetary Union (UEMOA), and the Monetary and Economic Community of Central Africa (CEMAC). 3 Parts of this chapter draw significantly on R. Beauchard & J. Kodo, Can OHADA Increase Legal Certainty in Africa, Justice and Development Working Paper No. 17/2011 (World Bank 2011), available at http://siteresources.worldbank.org/EXTLAWJUSTINST/Resources/17 -2011CanOHADAIncrease.pdf?resourceurlname=17-2011CanOHADAIncrease.pdf. 4 Including the events in Guinea-Bissau and Mali unfolding at the time of writing. 5 The Communauté Financière Africaine (CFA) franc is the name of two currencies used in Africa that are guaranteed by the French treasury: the West African CFA franc (XOF) and http://www.ohada.org/etats-parties.html http://siteresources.worldbank.org/EXTLAWJUSTINST/Resources/17-2011CanOHADAIncrease.pdf?resourceurlname=17-2011CanOHADAIncrease.pdf http://www.ohada.org/etats-parties.html http://siteresources.worldbank.org/EXTLAWJUSTINST/Resources/17-2011CanOHADAIncrease.pdf?resourceurlname=17-2011CanOHADAIncrease.pdf The World Bank Legal Review324 gou, Burkina Faso, in April 1991. This group of experts, led by Justice Keba Mbaye from Senegal,6 was appointed to conduct a feasibility study on a form of legal collaboration designed to promote economic integration and attract investments.7 Integration could be attempted via several methods. It could take the shape of a common frame of reference or a model law, which the states could then use as a point of reference, without any obligation.8 Another, more con- straining, approach would be to establish objectives to be pursued and let the states determine how to implement them.9 A still deeper form of integration could be attained through unification, that is, by replacing preexisting national laws with uniform laws.10 Unification would substitute new legislation for current domestic laws in relevant areas of business. In the end, OHADA framers chose the path of unification,11 although the treaty expressed this goal by using the all-encompassing—though perhaps more ambiguous—word “harmonization.” As part of the process, a new set of unified laws was created that preempted all conflicting domestic provisions. The treaty was opened to all African states, whether or not they were mem- bers of the African Union. A fully fledged international organization, OHADA has an institutional framework that consists of the Council of Ministers (Conseil des Ministres), the Permanent Secretariat (Secrétariat Permanent), the Common Court of Justice and Arbitration (Cour Commune de Justice et d’Arbitrage, or CCJA), and the Regional Training Center for Legal Officers (Ecole Régionale Supéri- eure de la Magistrature, or ERSUMA). The treaty revisions signed in Québec on October 17, 2008, completed the institutional framework with a fifth the Central African CFA franc (XAF). Although theoretically separate, the currencies are ef- fectively interchangeable. 6 Keba Mbaye died in 2007 after having occupied the offices of chief justice of the Senegalese Supreme Court, chief justice of the Senegalese Constitutional Council, and vice president of the International Court of Justice. 7 Martin Kirsch, Historique de l’OHADA, Revue Penant 129 (1998); Barry Walsh, In Search of Success: Case Studies in Justice Sector Development in Sub-Saharan Africa 44 (World Bank 2010). 8 For example, US model codes or the Association Capitant and Société de Législation Com- parée’s Draft Common Frame of Reference on European Contract Law. 9 For example, European Commission (EC) directives. 10 Comp. EU regulations are the most direct form of EU law—as soon as they are passed, they have binding legal force throughout every member state, on a par with national laws. National governments do not have to take action themselves to implement EU regulations; see http://ec.europa.eu/eu_law/introduction/what_regulation_en.htm. For more details, see J. A. Yakubu, Community Laws in International Business Transactions, in Unified Business Law for Africa: Common Law Perspectives on OHADA 4 (Claire Moore-Dickerson ed., GMB Publishing 2009). Although harmonization is mentioned in the treaty, OHADA in fact uni- fies business law, but the (French) word “harmonisation” was used instead of “unification” consciously and for political reasons. 11 See Keba Mbaye, L’histoire et les objectifs de l’OHADA, 205 Les Petites Affiches 6 (2004). http://ec.europa.eu/eu_law/introduction/what_regulation_en.htm OHADA Nears the Twenty-Year Mark 325 component, the Conference of Heads of State and Government. The revised treaty came into force on March 21, 2010. The main accomplishment of OHADA has been the production of a series of standardized pieces of legislation on business law, known as uniform acts, which are directly applicable in the member states and preempt any relevant domestic legislation. Thus far, nine uniform acts are in force.12 With most uniform acts in force for more than a decade, it is legitimate to ask whether OHADA has produced the desired effects identified in the Port Louis treaty’s preamble, which proclaims the aim of “making progress toward African uni- ty and creating a climate of trust in the economic systems of the contracting States with a view to creating a new center of development in Africa.” Who Are OHADA’s Constituents and What Can OHADA Bring Them? A preliminary matter in assessing OHADA is to identify its constituents. Al- though this should be an easy task, in fact, the political elites in OHADA coun- tries tend to think of OHADA constituents as judges, lawyers, notaries, and bailiffs, all of whom like to participate in donor-funded seminars on more or less theoretical subjects. But while these are indeed essential actors, OHADA constituents must be more broadly defined. Geographically, the best place to locate OHADA constituents is in the many marketplaces that characterize Africa. For the purpose of this chapter, the Dantokpa market in Cotonou (Benin), one of the largest marketplaces in West Africa, is the focus. A fascinating place, it is a complex, multilayered, pyramidal structure. The base consists of minor transactions in local goods, usually perishable and cheap. The next level is fabrics, jewelry, and arts and crafts, more expensive and often transported from far away. At the very top of the pyramid is the active money market. What is most important in places like Dantokpa is not what appears at first sight. It is the credit, rather than the commodities. The Dantokpa market is where accounts are settled, where debts meet and cancel each other out. The complex structure operates almost entirely outside the realm of formal law and ignores OHADA. Therefore, when considering OHADA, one should think about the small merchants at the Dantokpa market as OHADA’s con- stituents. What precise innovations can OHADA bring its constituents to empower them and promote their welfare? OHADA offers the business community of the OHADA member states some essential “institutions” (in the neo-institu- tionalist sense of the “humanly devised constraints that structure political, 12 The uniform acts cover general commercial law, companies, secured transactions, bank- ruptcy, arbitration, simplified debt collection and enforcement measures, accounting, carriage of goods by road, and cooperative companies. The World Bank Legal Review326 economic and social interactions”)13 that can transform uncertainty, which is characterized by imprecise knowledge, into risk, which relates to events that can be assessed with some degree of certainty and can therefore be hedged against.14 It can provide universal mechanisms that ensure that its constitu- ents are not liable for 100 percent of their losses. It can give its constituents institutions such as pledges without dispossession, which allow them to use their stock as collateral for a loan. It can help the moneylending observed in places like the Dantokpa market ascend to the next level, that of commercial moneylending. The drafters of OHADA had small merchants in mind when they defined OHADA’s ambitious policy goals. But somewhere along the way, OHADA’s lofty objectives came into conflict with the entrenched economic logic of autocracy and rentseeking15 at play in the member states, which typically sup- port contract or property rights enforcement only for regime insiders. Legal Certainty: The Fundamental Standard Achievement of the OHADA policy goals should be the ultimate measure of OHADA’s success. The Port Louis treaty aims at “making progress toward African unity and creating a climate of trust in the economic systems of the contracting States with a view to creating a new center of development in Af- rica.” The important word here is “trust,” which French anthropologist Marcel Mauss describes as “the very foundation of all collective action.” The economies of the OHADA member states are mostly informal and broken into a mosaic of local markets; trust is precisely the engine that could help achieve the aim of OHADA to transform member economies from ones based on a material life focused on survival to an economic life focused on ex- change. This goal can be achieved only through larger-scale, more integrated markets, which require two pillars of trust: property protection and contract enforcement. More fundamentally, trust points to and underlines another central concept articulated in the Port Louis treaty: legal certainty. Because legal certainty connotes more than a simple evaluation of a law’s formulation but encompasses the issues of enforcement and observance, this chapter evalu- ates OHADA against the critically important objective of legal certainty. The standard of legal certainty must be clearly defined, however, which is not necessarily an easy task. Taking into account that a definition must be 13 See Douglass North, Institutions, 5 J. of Econ. Persp. 97 (1991). 14 See H. Root, Capital and Collusion: The Political Logic of Global Economic Development 4–6 (Prince- ton 2006). 15 Rentseeking is a culture in which the principal route to wealth is not creating wealth but taking possession of or benefiting from wealth created by others. Financial Time Lexicon, available at http://lexicon.ft.com/Term?term=rent_seeking. http://lexicon.ft.com/Term?term=rent_seeking OHADA Nears the Twenty-Year Mark 327 comprehensive but not too far-reaching, this chapter first uses an operational a contrario definition of what legal certainty is not. And there is no better ex- ample of what legal certainty is not than the situation found in the member states in pre-OHADA days. At that time, outdated business laws existed on the books, but without implementing regulation and often in contradiction to existing or prior nonabrogated norms. Having no equivalent of specialized commercial courts and with negligible business litigation, business law was largely an abstraction in those countries. What is more, judges had no codes and little if no access to legal reports or periodicals, and they often ignored the issue of which laws applied to which economic activity.16 Without effec- tive risk management, legal innovations, such as limited liability companies or secured transactions, which are so essential to the successful advance of industrial revolutions, were doomed to remain at the margin of economic de- velopment. This situation was among the ills OHADA hoped to redress. Is it possible to propose a formulation of the legal certainty standard relative to OHADA’s ambitions? Keep in mind that OHADA unifies busi- ness laws, the main objective of which is the protection of modern property rights17 and contract enforcement—and here is a useful limit to the definition of legal certainty that also limits the scope of the investigation. The protection of property rights and contract enforcement requires, in the words of Oliver Wendell Holmes, that “people . . . know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves[,]” which meant “the incidence of the public force through the instrumentality of the courts.”18 That knowledge presupposes “that all law be sufficiently precise to allow the person—if need be, with appropriate advice— to foresee, to a degree that is reasonable in the circumstances, what a given action may entail.” This means that with respect to harmonized business laws: • laws and decisions must be public and publicly available; • laws and decisions must be definite and clear in their applicability; • decisions of courts must be enforced and, to the greatest extent possible, reasoned, so as to provide relevant information on the compliance of con- duct with law; and • persons or officials associated with the application and enforcement of those laws must be easily identifiable and properly trained and equipped to accomplish their duty. 16 See, e.g., the dismal description made by Xavier Forneris, Harmonizing Commercial Law in Africa, 46 Juris Périodique 77, 81 (2001), available at http://www.ohada.com/doctrine /titre/199/Harmonising-commercial-law-in-Africa-the-OHADA.html. 17 Francis Fukuyama’s definition of modern property rights is used here, understood as “rights held by individuals, who are free to buy and sell their property without restrictions imposed by kin groups, religious authorities, or the state.” Francis Fukuyama, The Origins of Political Order 248 (Farrar, Strauss & Giroux 2011). 18 Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897). http://www.ohada.com/doctrine/titre/199/Harmonising-commercial-law-in-Africa-the-OHADA.html http://www.ohada.com/doctrine/titre/199/Harmonising-commercial-law-in-Africa-the-OHADA.html The World Bank Legal Review328 Assessment of OHADA in Regard to Legal Certainty The goal here is to assess OHADA’s innovations and claim of empowering member states’ populations against the standard of legal certainty, as artic- ulated above. To promote legal certainty, OHADA is based on two pillars: the norms it produces and the institutions designed to produce and apply those norms. OHADA has largely been successful in terms of the production of norms. There are undeniable achievements, mostly concerned with the innovations contained in the formulation of OHADA law and centered on the supranational level, which are detailed here. However, OHADA has en- countered serious challenges regarding the application and the reception of the uniform acts. OHADA has an Achilles’ heel: the way it is implemented at the state level. Only if the focus is on effective implementation can OHADA deliver results; this, however, does not seem to be the case. Achievements In a remarkably short period of time, OHADA has created a new suprana- tional organization—no small feat. The principal achievement of OHADA is that it has largely fulfilled its aim in the production of uniform law. Thus far, OHADA has delivered nine uniform acts that form an innovative, comprehen- sive, definite, and coherent framework focused primarily on the microlevel, the level of the productive unit. For example: • The General Commercial Law Act provides the fundamental rules of business activity: merchant status, commercial leases, commercial sale of goods, agency, businesses and movables registry (Registre du Commerce et du Crédit Mobilier, or RCCM), and microbusiness. • The Companies Act provides for various limited liability structures that protect business operators. • The Secured Transactions Act provides for various securities protecting creditors against the risk of defaults of their debtors and sets the condi- tions for the development of commercial lending. • The Accountancy Act provides for uniform accounting standards based on the true and fair view standard. • The Simplified Debt Collection Procedures and Enforcement Measures provides operators with modern legal remedies, such as seizures and garnishments, that are available to unpaid judgment creditors to compel judgment debtors to pay up, if need be with the assistance of the police. The OHADA drafters opted for a uniform law rather than a harmonized one. OHADA is not a model code, which the member states are free to adapt. It is a uniform set of legislation that must be applied with consistency in the member states. On one hand, this uniformity makes implementation less dependent on the governments of the member states, although that is largely theoretical. On the other hand, the policy choice of a uniform law makes it ap- pear more distant from its ultimate constituents and more difficult to reform to respond to local circumstances. OHADA Nears the Twenty-Year Mark 329 But uniformity means nothing without coherence. In this respect, the co- herence of OHADA law rests primarily on Article 10 of the treaty, which pro- vides that the uniform acts preempt all domestic statutes for the subject matter they cover, whether enacted before or after the acts’ entry into force. And there cannot be coherence without uniformity of interpretation. Thus, to guarantee uniformity of interpretation, the OHADA framers created the court of justice, the CCJA. Some examples of innovations that, if properly applied, could have an important impact on OHADA’s constituents, include the following: • The entreprenant status: the General Commercial Law Act, revised in 2010, introduced a status of entreprenant, inspired by the auto-entrepreneur status in France, which is credited with leading more than 300,000 persons to register an activity in less than a year after its introduction in 2009. • The Registre du Commerce et du Crédit Mobilier (RCCM): the General Commercial Law Act created a three-tiered registry of businesses and movables, the RCCM. This registry, by recording businesses and movable securities, is an important and essential innovation designed to ensure protection for creditors. As such, it is a key institution to favor the devel- opment of moneylending. • Pledges without dispossession on tangible assets: the Secured Transac- tions Act, revised in 2010, instituted pledges without dispossession on tangible assets. Provided it becomes a practical reality, this is a welcome innovation designed to use stock or any other means of production as col- lateral without depriving the grantor of the use of the pledged asset. A Few Design Flaws Even though the formal law created by OHADA was well conceived, it is not flawless. For example, why did the drafters consider a bankruptcy act to be a priority in countries with no significant commercial moneylending? As one author put it, “bankruptcy is the unwanted handmaiden of commercial debt.”19 Without significant commercial lending, there is no practical use for a bankruptcy act. This act should have been implemented farther down the road. The choice of arbitration as the sole alternative dispute resolution method was introduced in OHADA to the detriment of mediation, which would cor- respond better with the traditional method of conflict resolution known as pa- labre.20 Arbitration is a hard sell in OHADA countries. Perceived as expensive, the payment of fees up front is often dissuasive, except for very sophisticated businesses. Mediation and conciliation, which, compared with adjudication, 19 See Wade Channell, Lessons Not Learned about Legal Reforms, in Promoting the Rule of Law Abroad, in Search of Knowledge 141 (Thomas Carothers ed., Carnegie 2006). 20 See J.-G. Bidima, La palabre, une juridiction de la parole (Michalon 1997). The World Bank Legal Review330 are costless alternatives and centered on consensus building, would be easier to sell. Finally, only two uniform acts (the General Commercial Law Act and the Commonly Owned Businesses Act), and one only very partially, acknowledge the existence of an informal sector, which accounts for 60 to 85 percent of the GDP of the member states.21 But these challenges are easy to address in comparison to implementation challenges. Implementation Challenges Diligent application of the existing uniform acts should be the priority of OHADA policy makers. Except for employment law—and not everybody agrees on that—the OHADA institutions should stop legislating activity and dedicate attention to the enforcement of the existing uniform acts. The legislation of risks generates conflicts with norms produced by other regional organizations. Thus, the more legislation there is, the more oppor- tunities there are for conflicts with other regulatory ensembles, because all OHADA member states are also members of monetary unions, such as the Union Economique et Monétaire Ouest Africaine (UEMOA), and trade and customs unions, such as the Economic Community of West African States (ECOWAS). These groups produce regulations, especially in the banking sec- tor. Only once markets become more concentrated should OHADA legislate further. Regarding proper implementation, OHADA faces various challenges, beginning with the institutional challenges of OHADA itself. OHADA must transform itself into an integrated judicial space in which final judgments on subject matters covered by OHADA are given full faith and credit. Finally, and this is certainly the most difficult challenge, OHADA can succeed only if member states demonstrate the requisite level of political will and dedication to implement OHADA laws. Institutional Challenges At the regional level, OHADA institutions are well established. However, they still face budgetary constraints. For example, the total budget of OHADA in 2012 was roughly US$8.3 million, which seems low, especially considering that OHADA must organize an annual conference of heads of states.22 More important, there seem to be structural problems (not least the use of bud- 21 See Prosper Backiny-Yetna, Secteur informel, Fiscalité et équité, l’exemple du Cameroun, 104 Sta- téco (2009); Mireille Razafindrakoto, François Roubaud, & Constance Torelli, La mesure de l’emploi et du secteur informel: Leçons des enquêtes 1-2-3 en Afrique, 104 Statéco (2009). 22 See Minutes of the Council of Ministers (Dec. 15 & 16, 2011), available at http://www.ohada .org/actualite-cm/en/cmfj/actualite/3610-compte-rendu-de-la-reunion-du-conseil-des -ministres-de-lohada-des-15-et-16-decembre-2011-a-bissau.html. http://www.ohada.org/actualite-cm/en/cmfj/actualite/3610-compte-rendu-de-la-reunion-du-conseil-des-ministres-de-lohada-des-15-et-16-decembre-2011-a-bissau.html http://www.ohada.org/actualite-cm/en/cmfj/actualite/3610-compte-rendu-de-la-reunion-du-conseil-des-ministres-de-lohada-des-15-et-16-decembre-2011-a-bissau.html http://www.ohada.org/actualite-cm/en/cmfj/actualite/3610-compte-rendu-de-la-reunion-du-conseil-des-ministres-de-lohada-des-15-et-16-decembre-2011-a-bissau.html OHADA Nears the Twenty-Year Mark 331 get) that indicate that simply injecting money won’t do the trick. Among all OHADA institutions, the one that seems to be suffering the most is the CCJA, which has backlogs despite a rather modest caseload.23 One structural problem can be traced to the treaty itself, which provides that all matters of interpretation of an OHADA provision as a matter of law can be deferred only to the CCJA, which cannot refuse to hear the case if it deems that the matter does not raise any matter of uniform interpretation at the regional level. Although this tenet may appear sound in theory, it has led to difficulties in administrative manageability and has made backlogs unavoid- able. Although this provision does remove the final interpretation of OHADA law from the national judiciaries, which are often accused of cooptation by political forces and extractive interests and of solving conflicts of interpreta- tion of OHADA provisions even before states review the matters, it also risks causing jurisdictional conflict with domestic supreme courts and hampers the CCJA’s manageability, a critical problem given the scarcity of resources in the member states. To make matters worse, the Rules of Procedure (Réglement de Procédure) contain no provision for filtering appeals such as those existing before the US Supreme Court, which grants plenary review to an average of only 1 percent of the cases on its docket, or for fast-track proceedings such as those insti- tuted before the French Cour de Cassation in 2001.24 Such proceedings would give the CCJA the ability to refuse to hear a case by a nonreasoned decision if it deemed that the appeal, which is limited to a matter of legal interpreta- tion, does not raise interpretative issues requiring a CCJA decision. Instead, Article 26 of the Rules of Procedure requires that as soon as an appeal is lodged, the CCJA chief justice must appoint a judge to follow up the case management and report to the court. This is the same procedure used by the French Cour de Cassation before the institution of the fast-track option in 2001, a reform motivated by the buildup of large backlogs. No Integrated Judicial Space There is no real judicial space in OHADA, that is to say, a space where final and enforceable decisions of the national judiciary on OHADA matters receive full faith and credit in OHADA member states applying the same law based on a simple recognition and enforcement procedure. Although the treaty pro- vides that CCJA judgments are directly enforceable in the territory of mem- ber states under the same conditions as domestic judgments (Article 20 of the Rules of Procedure), it does not contain any jurisdictional provision for transnational matters, nor does it regulate how final domestic judgments that apply uniform law can be applied in other member states. 23 It is difficult to understand how a court with nine judges can have backlogs with a docket of a few hundred cases, as compared, for example, with the US Supreme Court, which has the same number of judges and an annual docket of 10,000 cases but little backlog. 24 Known as procedure de non admission du pourvoi. The World Bank Legal Review332 Because of this shortcoming, issues of jurisdiction, recognition, and en- forcement within the OHADA judicial space tend to follow national rules, which suffer from the same problems as the laws OHADA replaced: they are frequently outdated, unavailable, unenforced, and/or nonexistent. Challenges at the State Level Perhaps the most prominent example of OHADA’s enforcement weakness is the Business and Movable Securities Registry (RCCM). The RCCM operates at three levels: local, national, and regional. A creation of the general commercial law that entered into force in 1998, the RCCM is largely a virtual registry. Most discussions have been centered on computerization, viewed as the remedy of all ills. Computerization suffers from its own problems, not least the lack of coordination among actors involved in the process, but the issue has much deeper roots than that. First, the initial filings are made at the local level, then at the national level, and finally at the regional level and little progress can be attained if the focus goes the other way around, that is, from the regional to the local. Second, and this is the more important problem, a registry of collat- eral cannot be feasible without a proper vital records registry, which none of the member states has managed to create. Another implementation issue is the articulation of the uniform acts and domestic laws the OHADA acts are intended to replace. In domestic circum- stances, new text replacing another indicates that the provisions of older in- struments are repealed. That is called express abrogation. Express abrogation is difficult with a supranational law, such as OHADA laws; article 10 of the treaty provides that the uniform acts are “directly ap- plicable and mandatory . . . against any contrary provision in domestic law.” Thus, OHADA is an example of tacit abrogation. To make OHADA work, the member states should have inventoried all texts repealed by OHADA and enacted express abrogation statutes. Yet, not a single country has done that. At best, a proper inventory was made, but no statute has been enacted to repeal preempted instruments. At worst, nothing has been done. In most cases, hefty fees have been paid to consultants to make insufficient inventories. As a result, OHADA provisions coexist with tacitly repealed domestic rules, not a tenable situation regarding legal certainty. These are just some of the implementation challenges that call for the in- tervention of the governments of the member states. But these are nothing in comparison to the challenges caused by the necessity to ensure that OHADA becomes a concrete reality for its constituents. In this respect, a reconsidera- tion of the Dantokpa market is in order. The constituents of OHADA are not the judiciary and the various legal professions (attorneys, bailiffs, notaries, and the like) of OHADA member states, but rather the business community, comprising mostly informal actors. To reach their true constituents and be effective, OHADA’s laws must be implemented and applied by a myriad of intermediary players, including OHADA Nears the Twenty-Year Mark 333 accountants, moneylenders, court registries, chambers of commerce, business registration units, microfinance institutions, banks, insurance companies, ar- bitration and mediation chambers, and all sorts of government officials in- volved in activities connected with the constitution of capital and the protec- tion of property for business. But OHADA remains largely an abstraction for those actors. To guarantee the integration of OHADA into domestic legal systems, a first and logical step would have been to carry out an inventory of all agents affect- ed by OHADA and to ensure that these actors are familiar with OHADA and comply with it. To provide one example: the websites of most business regis- tration centers say nothing about the status of entreprenant or microbusiness. In the OHADA member states, the status of entreprenant exists only virtually. Similarly, formalization cannot take hold without the cooperation of tra- ditional leaders in rural communities. Nothing was done to familiarize tradi- tional authorities with the advantages of mechanisms such as those promoted by OHADA to transform uncertainty into risk management. Conclusion OHADA has come a long way since the 1993 Treaty of Port Louis. Few ob- servers would have expected that a group of states whose track record on coordination was decidedly wanting would be able to achieve the goal of stan- dardizing business laws. The framers of OHADA and international donors as- sumed that the appropriate social and political institutions required for the ex- periment to succeed already existed. In retrospect, it was overly optimistic to assume that a set of uniform business laws would be self-enforcing and gener- ate trust toward and among countries in which rent seeking is so entrenched and whose judiciaries are crippled by backlogs, corruption, lack of planning, and limited accountability. Twenty years after the Port Louis treaty, it is time to reintroduce those exogenous parameters into the debate on OHADA. 335 Legal Innovation for Development The OHADA Experience Marc Frilet In the years following the independence of the French African colonies, inter- national investors and the African business community faced many difficul- ties in ascertaining the applicable principles of company law in the region.1 At that time, company law was based on the French Company Act of 1867, which ceased to be in force in France in 1966. Interpretation of the law by local courts was often hazardous, and few reliable precedents existed. This uncertainty was the source of numerous disputes that triggered often unpredictable deci- sions by local courts, which in turn caused yet more uncertainty and discour- aged international investment in these countries. This volatile situation presented an opportunity for French law firms to develop a practice in Africa providing “authoritative interpretations” of com- pany law. These interpretations were often based on documentation that was not available in Africa. The firms’ comparatively easy access to French case law gave them lucrative opportunities in Africa.2 It took years to figure out how to overcome this problem. In 1963, Profes- sor René David, a leading scholar in comparative law, organized a confer- ence with the ministries of justice of the former French African colonies to assess the need to harmonize the legal system in the interest of economic de- velopment. This meeting set the stage for the emergence of the Economic and Custom Union of West Africa in 1964 and the Economic Community of West African States in 1972. Subsequent enlargement of the scope of these organi- zations included their extension into the insurance sector during the African conference on insurance markets in 1972. The African and Mauritius Office for Law Research and Studies (Bureau Africain et Mauritien de Recherches et d’Etudes Législatives, BAMREL) was created in 1975. The purpose of BAMREL was to help signatory states develop their legislation in a harmonized manner. Although BAMREL was not imple- mented due to a lack of funding,3 its conception represents the true beginning of the harmonization of business law in the region. 1 The OHADA region comprises 17 states: Benin, Burkina Faso, Cameroon, the Central African Republic, Chad, the Comoros, the Democratic Republic of Congo, the Republic of Congo, Equa- torial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Niger, Senegal, and Togo. 2 See also Georges Meissonnier & Jean-Claude Gautron, Analyse de la législation africaine en matière de droit des sociétés, 3 RJPIC 331 (1976). 3 See Alhousseini Mouloul, Comprendre l’organisation pour l’harmonisation en Afrique du Droit des Affaires, 2nd ed., Working Paper 17 (2008). The World Bank Legal Review336 The desire of the business community (both in Africa and farther afield) to develop a secure legal system for economic transactions was increasingly expressed, particularly by private operators and the French Council for Inves- tors in Africa (CIAN). In April 1991, during the conference of Ouagadougou (Burkina Faso), which included all the ministries of finance of the franc zone, the decision to progress toward the harmonization of African francophone countries was made. The ministries of finance gave a mandate to a high-level panel of seven members, made up of eminent jurists and specialists in busi- ness law, to propose an action plan. The panel was chaired by Keba Mbaye, a Senegalese judge and a former vice-chair of the International Court of Justice. In October 1992, in a meeting of the heads of state in Libreville (Gabon), the report of the panel was presented and endorsed by President Abdou Diouf.4 The next step was to appoint a directoire, made up of three members, to coordi- nate and prepare a treaty creating the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA, also known as the Organization for the Harmonization of Business Law in Africa). The directoire was chaired by Mbaye and included Martin Kirsch, honorary counselor of the French Cour de Cassation, and Michel Gentot, chair of the dispute department of the French Conseil d’Etat. After preparation of the draft treaty and several meetings with experts, judges, and specialists, 14 states5 signed the treaty in Port Louis (Mau- ritius) on October 17, 1993;6 the treaty was revised in Quebec (Canada) on October 17, 2008.7 Many of the exchanges were organized under the leadership of Keba Mbaye, especially during the conference in Abidjan in 1993, where techniques for preparing to harmonize business law were presented and tested (inter alia, through the organization of national committees in each country). A key objective of OHADA, as reported by Seydou Bâ, former chair of the Senegalese Court de Cassation and former president of the OHADA regional supreme court (the Common Court of Justice and Arbitration, or CCJA), is to progressively unify the legal framework in the area of business law and to organize a set of legal procedures promoting harmonized and sustainable development in all the Member States. Harmoniza- 4 The final communiqué is as follows: The heads of states “approved the project of harmoni- zation of business law elaborated by the Ministries of Finance of the Franc Zone, decided its immediate implementation, and requested to the Ministries of Finance and Justice of all interested States to treat this matter as a priority.” Henri Tchantchou, La supranationalité judiciare dans le cadre de I’OHADA: Etude à la luminère du système des communautés européennes 22 (L’Harmattan 2009). 5 The 14 signatory states are Benin, Burkina Faso, Cameroon, the Central African Republic, Chad, the Comoros, Equatorial Guinea, Gabon, Ivory Coast, Mali, Niger, the Republic of Congo, Senegal, and Togo. 6 See http://www.ohada.com/traite.html. 7 See http://www.ohada.com/traite-revise.html. http://www.ohada.com/traite.html http://www.ohada.com/traite-revise.html Legal Innovation for Development 337 tion of business law is a real trigger of growth and should facilitate the implementation of the rule of law.8 Legal integration is intended to mirror progress in economic integration at the regional level between Central African and Western African states. To this end, the OHADA member states designed a set of Uniform Acts on business law matters.9 The nine OHADA Uniform Acts cover three broad areas: • Commercial relationships and related transactions (general commercial law, security law, transport of goods by roads) • Establishment and operation of commercial entities (company law and economic interested groups, accounting law) • Settlement of disputes and regulation of commercial default (arbitration, bankruptcy law, recovery procedures) Additional acts are in the pipeline for contract law and labor law. The acts are currently under review on the basis of a reform program or- ganized by the World Bank Group’s multidonor Investment Climate Advisory Service (FIAS). The overall project objective is to improve the quality and ef- fectiveness of the legal and institutional framework created by OHADA and therefore help the 17 member countries increase their attractiveness for do- mestic and foreign private investment.10 OHADA is a major legal innovation, unique in the modern world. There is much to be learned by assessing it. This chapter looks at its impact from a private sector perspective. The Positive Features of OHADA Several OHADA Uniform Acts replaced old business regulations in partici- pating countries. This move has generally been welcomed by international and local businesses that wish to develop their operations in a secure frame- work and with good governance. The best features of OHADA include the following: 8 Seydou Bâ, speech, in Fourth International Conference on Law and Economy: La convergence du droit 48–50 (Ordre des avocats de Paris, Edition Lamy Nov. 2005). 9 The Uniform Acts relate to general commercial law, commercial companies and economic interest groups, securities, recovery procedures and measures of execution, proceedings for wiping out debts, arbitration, undertakings’ accounting systems in the signatory states to OHADA, carriage of goods by road, and cooperative credit banks. 10 The reform’s program has three components: 1, institutional strengthening of the OHADA Secretariat and project implementation support: to strengthen the institutional capacity of the Permanent Secretariat; 2, institutional strengthening of the Joint Court of Justice and Arbitration (CCJA) and the regional superior magistrate school (ERSUMA); 3, improving corporate financial reporting: to improve and strengthen corporate financial reporting, accounting standards, professional standards and practices, regional professional qualifica- tions, and so on. The World Bank Legal Review338 • The process of drafting, developing, and promulgating the Uniform Acts is efficient by all modern standards. • Problems often found in other countries or regions for drafting and adopt- ing new pieces of legislation are minimized in the OHADA countries. • The problem of striking an appropriate balance between general prin- ciples and concepts and specific language is satisfactorily resolved. The Uniform Acts are worded in plain language that is easy to understand, with a minimum of cross-references and definitions. Credit must be given in this respect to the innovative method for the initial drafting of the Uni- form Act, which was to invite international law firms to participate. • The Uniform Acts are limited to key areas of business laws and as such are not particularly politically sensitive. For instance, the Uniform Acts do not cover areas that are often considered sovereign privileges, such as mining, taxation, and criminal penalties. The Uniform Acts are conducive to good governance and economic devel- opment. In this respect, some were designed to educate the users (members of the business community, especially the local business community). This is par- ticularly relevant for the OHADA company law system. As noted by Professor Guyon, the OHADA company law system—as is the case in many civil law countries—is more institutional than contractual in character.11 He reminded his audience that a role of law is to protect third parties, and the Uniform Act Relating to Commercial Companies and Economic Interest Groups does just that. In his view, OHADA company law could become more contractual in the future as the economy and the capacity of the players develop. Article 2 of the Uniform Act Relating to Commercial Companies and Eco- nomic Interest Groups states: “The provisions of this Uniform Act are manda- tory, except in cases where the Act explicitly authorizes a sole partner or the partners of a company to substitute contractual provisions between them for those of this Uniform Act or to supplement the provisions of this Uniform Act with their own provisions.”12 11 IBA Conference on OHADA, Yaoundé (Cameroon), December 1999. 12 Some international experts and scholars who view this act more from a common law per- spective may consider it too rigid and not conducive to the facilitation of business activities. If this is true for some sophisticated players, it is not the case for most of the African busi- nesses that need strong guidance and strict boundaries to develop their businesses with legal certainty before reaching the stage of sophisticated techniques. This is an important point to take into account in a “doing business exercise” sponsored by the World Bank. For instance, the obligation to have articles of association drafted or recorded with a public notary has raised debate. For most of the new players in the OHADA region, this obligation is perceived as an element of facilitation of business and governance, and in particular legal certainty for third parties. For some others, it may be considered an unnecessary hurdle limiting the pos- sibility of easily creating a company. Another debate has been raised concerning the benefits or pitfalls of having a minimum paid-up capital as provided for in the OHADA Uniform Acts. In the OHADA region, this provision is perceived less as a constraint to creating business than as a facilitation of sus- Legal Innovation for Development 339 Some Uniform Acts induce the informal sector of the economy to develop activities in the formal sector by providing for the following: • Registration of commerce and movable credit (RCCM) • Disclosure of corporate documentation • Accounting: The Uniform Act on accounting is generally recognized as a compromise in this respect, taking into account the real situation in the region13 • Progressive access to lines of credit through mortgages and pledges • Simplified forms of company structure, including mandatory provisions for their organization and operation The response of the business community in Africa to OHADA has gener- ally been positive.14 The international legal community also has responded positively. An American Bar Association panel made a thorough evaluation of the Uniform Acts and in 1999 proposed useful guidance in various areas.15 The Implementation Challenges of OHADA As with any new legal system, understanding of and compliance with the new regime can be a challenge, especially in Africa because of the overall low level of income, the poor state of the judiciary, the size of the informal sector, and deficiencies in governance. This section discusses some key implementation challenges of OHADA for the business community and for investors. The interpretation and enforcement of the Uniform Acts by the region’s judiciaries is and will remain a significant problem. At the highest level, the CCJA renders authoritative judgments concerning the interpretation of the Uniform Acts16 and has an impressive track record. However, many decisions concern procedure and jurisdiction, and relatively few concern the substance tainable business activities, because there is no sophisticated banking system and traditional security is difficult to organize and implement. 13 Professor Pérochon, famous for his manual assisting small businesses and owner-managers, was the author of this act. He was a practitioner of both the French system of accounting rules and international accounting standards. 14 The IFEJI/UBIFRANCE survey was conducted in 2003 with the support of the local business community, Conférence Permanente des Chambres Consulaires Africaines et Francophones (CPCCAF), and the Syndicat des Entrepreneurs Français à l’International (SEFI). The answers to the 30 survey questions are a useful reference for appraising issues faced by the business community and proposed actions. 15 A team of US lawyers and judges had reviewed each Uniform Act (four to eight experts for each Uniform Act) . Other reviews were prepared by members of the section of International Law and Practice of the American Bar Association (ABA) and the International Judicial Rela- tions Committee of the United States Judicial Conference under the leadership of William Hannay (OHADA project chair and chairman of the section of International Law and Prac- tice of the ABA), together with two rapporteurs. 16 Paul Gerard Pougoué & Sylvain Sorel Kuate Tameghe, Les grandes décisions de la cour com- mune de justice et d’arbitrage de l’OHADA (L’harmattan 2010). The World Bank Legal Review340 of the law. The CCJA also provides advice to national governments and judi- ciaries that is authoritative but limited. The greatest challenges facing the CCJA are its location, resources, and relationship with national judiciaries. Because of its location in Abidjan and its limited resources, the CCJA cannot perform its functions in an optimum man- ner. The problem of distance is a major issue for most of the OHADA states, and one that is negatively seen by practitioners in various countries and the international community. The superior courts in member states have resisted acknowledging that the CCJA possesses ultimate jurisdiction. Furthermore, many judges have only limited knowledge of OHADA. OHADA also includes a comprehensive and unique system of arbitration. Yet, the CCJA also has the authority to conduct arbitration and to rule on ad- ministrative issues. However, because this function is not well understood by the private sector and is underused, the number of authoritative awards is limited. The OHADA arbitration rules are modern and in accord with interna- tional standards, but they need to be implemented by administrative services provided by the secretary of the arbitration court. So far, the track record of implementation is limited. Promoting the arbitration system has proved to be a challenge. The system requires improvement in several aspects.17 Another challenge relates to the enforcement of the Uniform Acts in terms of criminal sanctions. Without appropriate criminal sanctions, compliance with legislative provisions is haphazard. The OHADA approach to criminal penalties is interesting in this respect. Article 5, paragraph 2, of the treaty pro- vides that “[t]he Uniform Acts may include provisions to give rise to criminal liabilities.” Article 10 provides that “Uniform Acts are directly applicable and overriding in the Contracting States notwithstanding any conflict they may give rise to in respect of previous or subsequent enactment of municipal laws.” Because the Uniform Acts are directly enforceable in each member state, criminal offenses should also directly be sanctioned in each member state. However, Article 5, paragraph 3, provides that “Contracting States commit themselves to enforce sentences of offences.” Thus, the sanction for criminal offenses is in fact determined by each state. This situation entails enforcement problems and discrimination, because the member states are not harmonizing penalties. This conundrum occurs not only with prison sentences and fines but also with surety provisions and other procedures for enforcement.18 17 Improvements could include, for instance, the introduction of more prescriptive procedural rules and guidelines governing the appointment and performance of the arbitrators, clarifi- cation of foreseeable costs depending on various procedural aspects and organization of the proceedings, and decentralization of the arbitration’s administration. 18 Aude-Marie Cartron & Boris Martor, Eclairage sur la révision du Traité de l’OHADA, 36 Cahier du Droit de l’Entreprise no. 1 ( Jan.–Feb. 2010). Legal Innovation for Development 341 This situation is compounded by the fact that it is not always easy to iden- tify in the Uniform Acts the definition and scope of a criminal offense. Some of the acts, such as the Uniform Act on Recovery Procedures and Measures of Execution, are particularly complex in this regard.19 Legal or Regulatory Areas Not Regulated Many key areas of interest to investors are not covered by the OHADA Uni- form Acts, including • Taxation and issues of tax certainty and conditions of implementation • Parafiscality20 • Customs and related tariffs • Exchange control and currency fluctuation issues • Private contract law content and interpretation21 • Public contract law content and interpretation • Permitting risks (risks deriving from governmental or bureaucracy atti- tude for clearances, nonobjection, approval, and other permits) • Land availability and land use risks, including the expropriation process and related issues • Environmental impact studies and related permits • Administrative or judicial review of adverse bureaucratic decisions • Public-private partnership issues • Employment law risks 19 Michel Mahouve, Le système pénal OHADA ou l’uniformisation à mi chemin, Recueil Penant 87–94 ( Jan.–Mar. 2004). 20 Parafiscality is recognized as a major risk for the business community and investors. It is broadly defined as the fees, royalties, local and sundry taxes, and levies not directly listed and not defined in tax code or legislation, mostly payable at the local level or with line min- istry organizations, for supporting particular activities or services of such administration and/or public bodies. In most states, parafiscality charges are numerous and in constant development. 21 Several drafts of Uniform Acts are in circulation, but little progress has been made on an avant-projet of Uniform Acts since February 2008. One reason is that this avant-projet is too close to the UNIDROIT principles. Various meetings have been held on the subject since September 2012, including exchanges between the French Institute of International legal Ex- perts (IFEJI) and the African professors Issah-Saygeh, Pougoué, and Sawadogo on Septem- ber 2008 (as part of the activities of the international working group set forth by IFEJI with the support of the World Bank and various stakeholders in March 2005: “Legal reform in developing countries—evaluation of the OHADA model”). A comparative analysis has been made on the drafting process and through benchmarking with the European Union effort to assess the benefits of a common European contract law. In Europe, this uniform contract law is progressively taking shape after the publication of a common frame of reference for its harmonization and a tentative draft of an optional legal instrument for international sales published in 2011. The World Bank Legal Review342 At this point, large international investment projects can realize only limited benefits of OHADA because OHADA does not regulate most major risks.22 Yet these kinds of projects are essential for development in areas such as infrastructure, public utilities, and mining. Business Community Expectations The business community expects that OHADA will contribute to the legal formalization of day-to-day activities, including relationships with states, ministries, public entities, subsovereign entities, and the like. This business community is represented at different levels, particularly with the chambers of commerce.23 French investors, who are very active in francophone Africa, have devel- oped a French business community in Africa, represented by the Conseil Fran- çais des Investisseurs en Afrique (CIAN) and the Mouvement des Entreprises de France (MEDEF). Members of these organizations are in close contact with African and international lawyers.24 In the eyes of the international business community, better and more effi- cient implementation of the existing Uniform Acts is needed. Three tasks need particular attention: • Reinforce the program run by the ERSUMA school in Benin (see below) to train the judiciary. • Design a user-friendly system that encompasses the issues of a particu- lar region and the capacity of the players and then promote arbitration through this system. This means, inter alia, doing the following: • Guarantee the appointment of an arbitration tribunal that is indepen- dent, professional, and efficient. • Guarantee simple and well-understood proceedings in line with local traditions for dispute resolutions. • Guarantee a fair and enforceable award within a reasonable time. 22 In areas that necessitate major up-front investments and with a very long recovery capacity (often over several decades), it is interesting to analyze the risk matrix developed by the industry leaders and that led to a due diligence ending at limiting the risks at a reasonable level to finance the project. For instance, in large mining projects, the risk matrix identifies 10 to 20 key chapters in which several key issues are generally identified. Some chapters can be well appraised in appropriate regulations, procedures, and reasonable perspectives of good implementation. Examples are expropriation, land use, compensation, resettlement, environmental permits and environmental and social management plans, and sovereign in- terference. 23 Several chambers have developed an integrated system of exchanges and created entities such as the Conférence Permanente des Chambres Consulaires Africaines et Francophones (CPCCAF). 24 In particular, the French Institute of International Legal Experts (IFEJI), created by the Paris Bar, and the French Ministry of Foreign Affairs select French practitioners (on average, 120 practitioners) with day-to-day expertise in international business law matters. Legal Innovation for Development 343 • Guarantee an arbitration administration center that is efficient, re- sponsive, fair, and cheap. • Allow the possibility of evaluating in advance costs and duration of proceedings. • Promote the development of uniform “implementing regulations,” guide- lines, and procedures for the Uniform Acts. In considering additional Uniform Acts, two actions may do most to help foster international investments in Africa: • Design an institutional framework that will facilitate long-term public- private relationships in the core public service sector with appropriate guarantees for the stakeholders and a limited impact on state budgets and development aid. • Design principles of public contract law and procedures that facilitate transactions involving the public sector. These should include improve- ment in the procurement of public contracts of all kinds and the provision of reasonable guarantees of fair implementation of the various types of contracts between the private and the public sectors, together with effi- cient procedures in areas such as mining contracts, urban development, forestry, lease of public land, and agriculture projects. Capacity Building and Empowerment Issues The international community has been actively building capacity in the OHADA region. For example, the ERSUMA school in Porto-Novo (Benin), which conducts training for the judiciary,25 provides support to OHADA in- stitutions such as the OHADA national committees. Yet, it is clear that much remains to be done in terms of capacity building and empowerment in regard to OHADA. The OHADA model has been assessed with a view to further improving the lawmaking process and the legal certainty for the business community. Sev- eral international working groups with that focus were established in the mid- 2000s, particularly in the wake of two conferences organized by the Paris Bar inviting African experts and practitioners, as well as World Bank specialists, in Washington (2004) and in Paris (2005).26 These exchanges led to the creation of a joint working group on legal reforms in developing countries, which has as its objectives the evaluation of OHADA and the dissemination of lessons learnt. The World Bank Group is playing an important role in funding programs to evaluate the content and implementation of the Uniform Acts through the World Bank Group’s multidonor Investment Climate Advisory Service 25 See http://web.ohada.org/ersuma.html. 26 The World Bank was represented by Robert Danino, senior vice president and general coun- sel of the World Bank, and Michael Klein, chief economist of the IFC (World Bank). http://web.ohada.org/ersuma.html The World Bank Legal Review344 (FIAS). This effort has resulted in a useful revision and improvement of some Uniform Acts (relating to securities and general commercial law), and other acts are in the pipeline (relating to competition law, banking law, intellectual property law, civil societies law, and evidence).27 The international donor com- munity is also supporting the OHADA institutions. More work is needed to build capacity in OHADA institutions and to imple- ment provisions on the ground. Specific areas that require attention include • The efficient implementation of the Trade and Personal Property Credit Register, an instrument for securing transactions and developing the economy • The organization and selection of the judiciary • The organization of efficient and user-friendly arbitration centers • The process of designing and implementing in various states regulations that further develop and adapt the OHADA Uniform Acts at various lev- els, including the clear abrogation of national regulations that conflict with the Uniform Acts Josette Nguebou, professor of law at the University of Yaoundé (Camer- oon), explored the sensitive relationships between the Uniform Acts and the national laws of the member states. She found that “although national law not conflicting with the Acts remained applicable, nothing prevents the Mem- ber States from maintaining and expending regulations which could narrow down its scope or even prevent its effective implementation.”28 Capacity building and empowerment should also be oriented toward • Fostering exchanges between scholars and practitioners on the implemen- tation of the Uniform Acts and authoritative case law. • Training the legal profession in the international business law system. • Training senior civil servants to engage with the international business community in order to permit them to be on an equal footing with expe- rienced international players when negotiating, implementing, and moni- toring their relationships. This would apply, for example, to projects in the oil and gas sector, the mining sector, the infrastructure sector, the utility sector, the agricultural sector, and the forestry sector. • Enabling more extensive exchanges between the local administrations and the administrations of other countries and regions. • Implementing more proactive programs in e-learning. Well-prepared pro- grams of e-learning, including appropriate documentation transmitted in 27 See the harmonization agenda adopted by the Council of Ministers of the OHADA region during the Bangui meeting of March 2001. 28 See OHADA Treaty, Les actes uniformes commentés et annotés, Juriscope 249 (1999). On this matter, see also Marc Frilet, Implementing the Rule of Law in Sub-Sarahan Africa: Appraisal of the OHADA after a Decade, 8(3) Bus. L. Intl., 254–67 (Nov. 2007). Legal Innovation for Development 345 advance by electronic means and used as background material for work- shops or specialized classes, can be effective at building capacity. The programs should be monitored by teachers or facilitators who have been trained to teach in an e-learning manner, including, when appropriate, direct online contact with authoritative scholars in other countries.29 • Fostering new relationships between the public and private sectors to ease the transfer of investment. This was identified as a top priority by multi- laterals and by the G20 Business Summit in Cannes (also referred to as the B20 of Cannes) in November 2011. Infrastructure development is seen as essential to achieving the Millennium Development Goals, and to that end the business community has been urged to develop a framework for better projects.30 Proposals have been made to design a new act on PPP; in June 2011, the council of ministers of OHADA decided to explore that option. Perfecting a system of equitable public contract law based on concepts and case law should be a priority, especially because some OHADA countries have started to experience the benefits of equitable public contract law for both the private sector and the public sector in landmark and long-term public infrastructure and utility projects. Conclusions OHADA has many positive features, and lessons learned from its implemen- tation can be instructional for organizations considering business activities not only in that region but also in other regions of the world. Improved understanding of the Uniform Acts will help strengthen the in- vestment climate and make it easier to do business in the region. Particular attention should be given to a clearer definition of criminal offenses (including the nature and scope of the criminal penalties). One solution might be to pro- mulgate a Uniform Act on this matter.31 29 E-learning conducted by faculties of law deserves to be taken into account; see, for instance, development of e-learning under the auspices of the International Bar Association (IBA). 30 See G20/B20, Final Report of the Business Summit in Cannes, 8 (Nov. 2011). In relation to pub- lic-private partnerships, the G20 report (p. A-71) says, “without appropriate institutional and legal framework, most of the public-private partnership (PPP) projects proposed for developing countries have a high likelihood of failure.” An international working group made of international lawyers with expertise in concession and other PPPs worldwide and representatives of the construction industry has been working on the matter with various agencies for a few years. This group, after reviewing many projects with governments and local authorities, identified 30 issues that need to be addressed in an inclusive manner for the success of long-term concessions and other PPP projects. The publication of a handbook on the conditions of success of concessions and other PPPs, together with an evaluation matrix for concession on other PPP projects, individually or at an institutional, regulatory, or con- tractual level, is expected in 2012. See CICA website, http://www.cicanet.com/. 31 See Achille Ngwanza, OHADA, Entre adolescence et âge adulte, une crise existentielle, Rapport général de l’université d’été de cercle horizon, club OHADA d’Orléans ( Jul. 1–3 2008). http://www.cicanet.com/ The World Bank Legal Review346 The greater problem is that regulatory sectors essential for the economic development of Africa, which are not well controlled by national laws or re- gional organizations, are not yet regulated by Uniform Acts. Looking ahead, it is important to consider new Uniform Acts in key areas where a good regula- tory framework already exists. It is also essential to launch an innovative pro- cess of capacity building and empowerment in the various directions outlined above, such as developing exchanges between scholars and practitioners, and training members of the legal profession and senior civil servants. Greater participation of legal practitioners experienced in providing advice in Africa may be the key to this process.32 Laurent Esso, minister of justice of Cameroon and president of OHADA, reported on the collateral benefit of OHADA in terms of legal innovation. In his view, OHADA is a conduit for convergence between civil law and common law in business law matters. He believes that Cameroon could be a laboratory for facilitating the implementation and interpretation of the OHADA Uniform Acts due to its unique civil law/common law regimes.33 Professor Barthélemy Mercadal, a specialist in international business law, followed this path by pro- moting convergence in the interpretation of legal concepts worldwide (inter alia, between the civil law and the common law worlds) based on the same or similar legal provisions and using the OHADA Uniform Acts as a background. Mercadal’s extraordinary effort, which led to a publication of Code IDEF annoté de l’OHADA,34 will contribute to encouraging business players at both the na- tional and the international levels to use the Uniform Acts on a regular basis.35 OHADA is an advanced and inclusive example of legal innovation for development. As such, the OHADA Uniform Acts are an excellent ground on which to test the benefits of an emerging field focusing on the optimization of legal frameworks and products. Although the contribution of OHADA to this field is already significant, much more can be done to apply lessons for further legal innovation.36 32 Business community and legal practitioners active in this area include UNIDA, CIAN, MEDEF, IFEJI, and IBA, which have conducted several conferences. 33 Uniform Commercial Law Infrastructure and Project Finance in Africa, 215 Intl. Bus. L. (May 2000). 34 http://www.institut-idef.org/-Code-OHADA-annote-.html. 35 See also Marc Frilet, Le raisonnement juridique du monde anglo-saxon: Quelques considérations élémentaires et quelques recettes pour éviter les malentendus contractuels, in La revue des entreprises (MEDEF Jan. 2000). 36 For information on this emerging field, known as l’art de la légistique, see Carine Gilberg, L’art de la légistique, Gazette de Palais 8–10 ( Jan. 6–7, 2010); Alexander Flückiger & Christine Guy-Ecabert, Guider les parlements et les gouvernements pour mieux légiférer—le rôle des guides de légistique (Schulthess 2008); Guide pour l’élaboration des textes législatifs et réglementaire, avail- able at http://www.legifrance.gouv.fr/html/Guide_legistique_2/accueil_guide_leg.htm; Catherine Bergeal, Savoir rédiger un texte normatif (Berger-Levrault 2004); Marc Frilet, Le code civil, une source d’inspiration inégalée pour améliorer la sécurité juridique en matière internationale, 87 Revue de l’Avocat Conseil d’Entreprise (Dec. 2003). http://www.legifrance.gouv.fr/html/Guide_legistique_2/accueil_guide_leg.htm http://www.institut-idef.org/-Code-OHADA-annote-.html Page numbers in italics refer to figures and tables. access to justice, 69, 179–180, 185–190, 195, 198 Accra Agenda for Action, 132 administrative forfeiture procedure, 269–270 administrative law, 182–184 Administrative Law on Urban Land and Real Estate Property (2007; China), 195 administrative reform, 7–8 Africa, 13–14, 142–143, 335–346 African and Mauritius Office for Law Research and Studies (BAMREL), 335 African Peer Review Mechanism, 142 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 13, 89–91, 311–312 AIDS. see HIV/AIDS Ain O Salish Kendra (ASK), 75, 79–81, 84 Gender and Social Justice Program, 80 Albright, Madeline, 35 Americans with Disabilities Act, 61 Amet, Arnold, 240, 242 antidiscrimination law, 195–197 antimoney laundering programs, international, 265, 279 appeals system (China). See Petition system (China) Arab Spring, 260–264 arbitration, 70, 73–74, 184, 189–190 Arbitration Act (1996; United Kingdom), 225 asset forfeiture. See Asset recovery and International asset sharing programs asset recovery, 9–10. See also Asset sharing Arab Spring and implications for, 260–264 conditions for, 259–260 due diligence in, 254–255 mutual legal assistance procedures and, 262–264 prevention of corruption in, 254 three stages of, 259 asset sharing, 9–10. See also Asset recovery and International asset sharing programs Australian Agency for International Development (AusAID), 40 Austrian Development Cooperation, 136–137 Bâ, Seydou, 336 Banchte Shekha, 84, 87 Bangladesh, 10 Bangladesh Legal Aid and Services Trust, 81 Bangladesh National Women Lawyers Association, 77 Bangladesh Rural Advancement Committee, 79, 81, 83 Beijing Declaration and Platform for Action, 223 Belo Horizonte agreement, 321–322 Ben Ali, Zine el Abidine, 260–262 Bermuda (IASP agreement), 267–268 BHP Pty Ltd, 238, 240 Bill & Melinda Gates Foundation, 99 Bio Ventures for Global Health (firm), 96 Blue Law International, 52, 55 BMZ (Germany), 137 BNDES (Brazilian Development Bank), 284, 286–287, 289, 291–292, 294, 297, 299, 301, 304, 308–309 Bolsa Escola program, 288 Bolsa Familia program, 293, 309–310 brain drain, 92 Brasil Maior program, 291–292 Brasil Sem Miséria program, 293 Brazil, 8–9, 315 bureaucracy, 283, 294, 303, 313 constitution (1988), 283–288, 301–304, 314 developmentalism, 281–283, 287–289, 294–295, 298–299, 301–307, 309, 311, 313–314 economic policy, 282–287 competitiveness and, 285, 287, 291, 296–298, 300–302, 305, 308, 310, 313 inflation and, 283, 285, 288–289, 293, 299–300 liberalization and, 285, 294–296, 301 privatization and, 283–285, 286, 287, 294, 302 stabilization and, 283, 285, 289 economic sector financial sector, 296–299 private sector, 282, 285, 289–291, 295, 298–302, 307–313 public sector, 284, 294, 299, 302–304, 310, 313 foreign investment, 284–285, 288, 294, 300–303, 312 immunization program, 95–96 industrial policy, 287–305, 308–309, 312–313 infrastructure, 289–290, 296–299, 305 Minas Gerais, 316–322 Belo Horizonte, 321–322 neoliberalism, 281–285, 288–289, 294, 296, 306–307, 311 new developmentalism, 281–283, 288, 294, Index 349 Index350 301, 304–307, 309, 313–314 new state activism, 282–284, 288–314, 306–309 poverty alleviation, 282–283, 287–289, 292– 295, 298, 300, 305, 310, 312 public administration, 310–311 public-private partnerships, 283–285, 288– 292, 297, 301, 303, 305, 308–310 social policy, 284, 287–289, 292–295, 305, 307–310, 313 state-owned enterprises, 282, 284–285, 286, 287, 294, 298, 302 trade policy, 291, 311–312 welfare system, 283–284, 287–288, 293, 300, 309 Brazilian Agency for Industrial Development, 290, 292, 297, 306 Brazilian Development Bank. See BNDES Burton Blatt Institute, 57 business law, 323–333, 335–346 Cadastro Único (Brazil), 309–310 Canada, 143 Canada (IASP agreement), 267–268 Cardoso, Fernando Henrique, 283–290 Career Development Fellowship on Clinical Research & Development, 99 child care laws, 224 China, 7–8, 296, 305 as a developing country, 203 constitution (1954), 202–203 constitution (1975), 202–203 constitution (1982), 202–208 collective ownership in, 204–206 compensation for requisitioned land in, 210 decision-making power in, 206 distribution principles in, 204 “duty to work” in, 206 economic freedom in, 206–207 economic planning in, 205–206 economic reforms and amendments in, 207–211 economic system of, 203–207, 209 foreign investment in, 204 gender equality in, 196 human rights in, 191, 211 private ownership in, 205, 211 property rights in, 205, 210–211 public ownership in, 204–206 socialist rule of law and, 190–192 Cultural Revolution, 170–172 economic growth, 203 economic reform, 212 opening up policy, 179–180, 202 petition system, 183–184 private economy legitimized, 207–212 rule of law, 208 social change, 161, 169, 174, 176–177 social reform, 162, 171, 175–176 social security, 206–207, 211 “three supremes” policy, 192–193 Chinese Academy of Governance, 182 Chinese Communist Party (CCP), 180–181, 187, 191, 193, 199 civil law codes, 223 civil society, 10–11 civil society organizations, 217 Code of Muslim Personal Laws, 226 Collor de Mello, Fernando Affonso, 283, 285 Common Court of Justice and Arbitration, 324, 329, 331 Communist Party (China), 171 community development, 11 Community Legal Services program (Bangladesh), 68, 88 Community Mine Continuation Agreements (CMCAs), 235, 239–243, 246–48 community ownership, 247–248 family back accounts, 245–246 implementation of, 243–250 negotiations for, 239–243 scholarships, 246–247 women’s representation in decision- making, 247 community-based organizations, 79–81, 85 community-based services, 39, 43–44 community-driven development (CDD), 84, 236, 247–248 company-community disputes, 236–239 comparative law, 161–164, 166, 174, 176 conflict resolution, 5, 21–22, 68, 70–74, 77–78, 81–83, 85–88, 316–317, 320–322 conflict types, 71–73, 81, 83 constitutionalism, 7, 197–198, 211–212 democracy and, 212 economic, 202, 212 modernization and, 212 constitutions, 8, 315–316, 318, 320–321. See also China: constitution and state activism, 316 as a means of environmental protection, 316, 318 defined, 201–202 discrimination clauses, 215–216, 218 economic functions of, 201 contract law, 181–182 Convention on the Rights of Persons with Disabilities (CPRD), 12 antidiscrimination litigation, 60–61 Conference of State Parties, 48 conflict resolution, 60 Index 351 content, 47–49 economic development, 58–59 framework for legal empowerment and innovation, 49–51 implementation, 50 reasonable accommodation, 59 structure, 47–49 Cotonou Agreement, 139–140n103 Council for Investors in Africa, 336 Council of Economic and Social Development (Brazil), 290, 297 Council of Europe Development Bank, 144 criminal justice systems, 18–19 Criminal Procedure Law (1996, China), 191–194 Cultural Revolution (China), 180–181, 186, 192, 194, 203 customary justice systems. See Traditional justice systems Dantokpa Market, 325, 332 David, René, 335 de Soto, Hernando, 35, 42 death penalty, 192 Declaration on the Right to Development. See under United Nations Democratic Republic of the Congo, 256–260 Deng Xiaoping, 179–180, 186, 199, 202, 208, 210 Department for International Development (United Kingdom), 67–68, 73, 75 Develoment as Freedom (Sen), 3 development policy, 3, 281–314 coherence, 129–145, 147–150 human rights and, 150–153 legal accountability and, 153 frameworks for, 138–144 disability (definition), 50 disability rights, 49–53 accessibility in virtual spaces, 55–58 awareness of, 49, 51–53 budget analysis, 61–63 enforcing, 59–63 facilitating, 55–58 monitoring, 59–63 policy models for, 52–55 strengthening, 53–55 disabled people’s organizations (DPOs), 48, 52, 54, 60, 63–64 dispute resolution. See Conflict resolution drainage basins. See Hydrogeographical regions Drugs for Neglected Diseases Initiative (DnDi), 13, 95 due diligence, in asset recovery, 254–255 Duvalier, Jean-Claude, 258–260 E-Court, 22 ecological compensation, 320–322 Economic Institute for Industrial Development (Brazil), 296 economic integration, 324–333 economic liberalism, 9 economic liberalization, 3 economic rights, 184–186 Egypt, 260–262 Eisai, 99 Embraer (firm; Brazil), 286, 304, 312 empowerment. See Legal empowerment entitlements as legally enforceable right, 235 family bank accounts, 245–246 scholarships, 246–247 environmental laws, 315–322 environmental protection, 9, 315–322 legal obstacles to, 318–319 urban, 321–322 equal rights law, enforcement of, 227–229, 231–232 Esso, Laurent, 346 Ethiopian Women Lawyers Association, 217 European Bank for Reconstruction and Development, 143–144 European Convention on Human Rights, 158 European Investment Bank. See under European Union European Union approaches to development cooperation, 139–144, 158 Charter of Fundamental Rights, 127, 142 Cotonou Agreement, 139–140n103 development policy coherence, 148 European Investment Bank, 141 Parliament, 141, 145, 148 Family Court of Australia, 40 family law, 6 fatwas, 74–75 Federal Act on the Restitution of Assets. See Switzerland: Return of Illicit Assets Act (RIAA) Federal Ministry for Economic Cooperation and Development (Germany). See BMZ Federation of Industries of Sao Paulo (FIESP), 295–296, 302 financial crisis of 2008, 291, 297, 312 financial markets, international, 303 Fiocruz. See Oswaldo Cruz Foundation Foundation Law (Brazil), 290 Franco, Itamar, 283, 285, 288 Gaddafi, Muammar, 261 Index352 gender discrimination (private sector), 218 gender equality, 6, 234 Gender Equality and Family Law (Kosovo), 229 gender-disaggregated data, 232 Gentot, Michel, 336 GlaxoSmithKline (GSK), 95–98 Global Forum on Law, Justice and Development. See under World Bank Global Initiative for Inclusive ICTs, 56 Global Legal Empowerment Network, 44 globalization, 295, 301 governance reform, 31, 33–34, 114–115, 120, 338 government regulation, 3, 185, 282, 286–287, 297–298, 300, 307 Growth Acceleration Program (Brazil), 297 GSK. See GlaxoSmithKline Gurry, Francis, 91 Haiti, 258–260 Harvard Law School Project on Disability, 55, 61 hepatitus B virus, 196–197 High Level Forum on Aid Effectiveness (4th), 132 HIV/AIDS, 97–98, 196 Hogares Comunitarios program (Colombia), 224 Hu Jintao, 199 human rights, 8, 11–12, 35, 58–59, 63 approaches to development, 134–136 as general principles, 133–134 disability rights, 46–49, 64 impact assessments, 157–159 in treaty frameworks, 126–127, 156 international standards, 154–156 Human Rights Protection Committee (Bangladesh), 80 hydrogeographical regions, as a territorial unit for public planning, 315, 317–322 IASPs. See International asset sharing programs (IASPs) IGD (management index; Brazil), 309–310 Indonesia, 28, 40–42, 229 industrial policy, 287–305, 308–309, 312–313 inflation policy, 283, 285, 288–289, 293, 299–300 information and communication technologies (ICTs), 56–58 inheritance rights, 219–222 Innovation Law (Brazil), 290 innovative constitutionalism. See Constitutionalism, innovative institutional reform, 293–294 institutions access to, 215 gender discrimination in education and, 221 women’s agency and, 214, 221 intellectual property, 12–13 intellectual property rights brain drain, 92 enforcement, 90, 93 pharmaceutical industry, 91–94 protection, 90–93 technological development, 92 Inter-American Development Bank Operational Policy on Indigenous Peoples, 133 International Aid and Development Agency (New Zealand), 137 international asset sharing programs (IASPs) as development mechanisms, 265–279 International Bank for Reconstruction and Development (IBRD), 101n1 International Centre for Asset Recovery, 262–264 International Covenant on Civil and Political Rights, 126 International Covenant on Economic, Social and Cultural Rights, 126, 155 International Development Association (IDA), 101n1 International Finance Corporation, 138 international law, 11–12, 303 and disability rights, 58–59, 63 fragmentation of, 128–129, 145–158 international mutual legal assistance. See Mutual legal assistance Internet, 185–186 Japan, 53–54 Jiang Zemin, 202 Job Accommodation Network (organization), 59 Jordan, 229–230 Judges Law (China), 188 judicial administration, 186–187 judicial reform, 25–28 judicial systems access to, 179–180, 185–190, 195, 198–199 centralized, 199 sentencing, 192 justice innovation challenges, 25–27 defined, 18–19 monitoring mechanisms, 25 power relations, 27–28 research and development, 23–34 justice sector, 12 funding capacity, 18 Index 353 leadership articulating goals, 19–20 building trust, 26 considering long-term business models, 25 effecting procedural change, 20–21 fostering competition, 21–22 fostering innovation, 19–25 funding development, 23–24, 26–27 managing risk, 22–23 recognizing disruptive innovations, 24 legal reform, 45, 47 orthodoxy, 49–51 justice systems and economic development, 18, 28, 67–69, 79, 84, 88 Kabila, Laurent, 257 Kim, Jim Yong, 112 Kirsch, Martin, 336 labor law, 184–186, 195–196, 310–311 land expropriation, 194–195 land laws and rights, 219, 222–225 land reform, 194–195 law and development, scholarship on, 281– 282, 304–305 Law and Regulation Filing Office (China), 197 Law and the New Developmental State project, 306 law enforcement agencies, 269–270 Law on Gender Equality (Vietnam), 230 Law on Legislation (2000; China), 197 Law on Planification (2007; China), 195 Lawyers Law (2007; China), 187, 193–194 legal accountability, 153, 159 legal aid, 76–77, 81–82, 217, 228 legal certainty (concept), 179, 193–194, 198–200 legal development, 7, 161–177 legal empowerment, 4–6, 80 of persons with disabilities, 45, 47–51, 59, 63–65 legislative reform and, 53–54, 61–62, 64 policy reform and, 54–55, 64 of the poor, 31–15 “four pillars” of, 35–36 access to justice, 35–36, 38–40 business rights, 35–36 community-based methods, 43–44 concept, 32–34 criticism of, 36–37, 42 gender equality, 40–42 health care, 39–40 labor rights, 35–36 movement, 32–34 networks, 43–44 resistance to, by elites, 37 legal exclusion. See Rule of law, exclusion from legal expenses, 69 legal fees, 189, 198 legal harmonization, 13–14 legal innovation, 4, 14, 45, 49–51 legal integration, 335–346 legal liberalism, 9 legal obligations, 126–127 as a human rights policy frame, 136–138, 150–154 legal pluralism, 225–227 legal profession, 8, 187–188, 198–199 legal reform, 179 and sociocultural norms, 232 legal systems, 161–177, 313. See also Justice systems equal access to, 227 formal, 231–232 plural, 215 Western, 161–162, 172–173 with Chinese characteristics, 161, 169, 172–173 legal transplantation, 7 as a typical form of legal development, 161–165 conditions for success, 169–172 history of, 162–163 process of, in China, 172–177 traits and effects of, in China, 172–177 aboriginal concepts, 172–174 cost-saving approach, 167 entrepreneurialism, 168 innovation, 173, 176–177 selective adoption, 165–166, 173–175, 177 socialism, 161, 169–177 tolerance, 175–177 typology, 165–169 cost-saving, 166–167 entrepreneurial, 168 externally dictated, 167–168 legitimacy-generating, 169 legislative reform, 7, 181–182 Li Maorun v. Langzhong Police Station (2001), 183 Liberia, 52–53 Libya, 261 Limberg Principles on the Implementation of Economic, Social, and Cultural Rights, 62–63 local politics, 73–75 Lula da Silva, Luiz Inácio, 281, 287–290, 292, 294–297, 299, 301–304 Madaripur Legal Aid Association, 76–77, 82, 84, 88 Index354 Malan, Pedro, 287 Mantega, Guido, 296 Maoism, 179–180, 183, 186, 194. See also Marxism, in China Marcos, Ferdinand, 253, 261 markets, 214 marriage, 220–221 Marxism, in China, 181, 191–194. See also Maoism maternity leave laws, 224 Mbaye, Keba, 324, 336 mediation, 73–74, 184, 189–190, 198 Mercadal, Barthélemy, 346 Mexico (IASP agreement), 276–277 middle class, growth of, 291–294 Millennium Development Goals, 20, 126–128, 140n107, 221 mining industry, 10–11, 234, 320–321 Ministry of Justice (China), 180–181, 186–187 MLA. See Mutual legal assistance Mobutu Sese Seko, 256–260 Money Laundering Reporting Office (Switzerland), 255 Mubarak, Hosni, 260–262 mutual legal assistance (MLA), 254–258, 261–264 Nagorik Uddyog, 76–79, 84–85 Community Organisers, 78 Namati, 39, 43–44 National Council of Industrial Development (Brazil), 290, 292, 297 National Industry Confederation (Brazil), 296 National People’s Congress (NPC; China), 181, 185, 189, 194, 197, 202 National Policy of Water Resources. See Water Law National Strategy on Gender Equality (Vietnam), 230 natural resources as a public asset, 234 neglected tropical diseases. see NTDs negotiations, 10–11 between state, companies, and communities at Ok Tedi mine, 238–242 justice innovation and, 239 neoliberalism, 281–285, 288–289, 294, 296, 306–307, 311 Nepal, 54 Netherlands, 22 New Economic Partnership for Africa’s Development (NEPAD), 142–143 new state activism, 8, 282–284, 288–314 NGOs, 10–11, 43–44 accountability, 86–87 authority, 87 shalish and, 76–86 nongovernmental organizations. See NGOs NTDs (neglected tropical diseases), 94–97 Oasis project, 321 Official Development Accountability Act (Canada), 143 OHADA, 13–14 achievements, 328–329 arbitration system, 340 Common Court of Justice and Arbitration, 324, 329, 331, 336–337, 339–340 constituents, 325–326 directoire, 336 economic development, 338–339, 346 empowerment programs, 343–345 establishment, 323–325 implementation, 330–333 institutional framework, 324–325, 343 international community and, 342–344 international investment projects, 335, 337, 342–345 judicial integration, 331–332 legal certainty, 326–333 legal innovations, 328–333, 337, 346 regulatory functions, 341–343, 346 structural flaws, 329–330 Uniform Acts, 337–346 uniform law, 324, 328–332 Ok Tedi mine, 10–11, 235–242 Organisation for Economic Co-operation and Development (OECD), 138, 148, 312 Social Institututions/Gender Index, 9–10 Organization for the Harmonization of Business Law in Africa. See OHADA organizational representation quotas, 228–229 Oswaldo Cruz Foundation (Fiocruz), 13, 95–96 Immunobiological Technology Institute, 96 out-of-court settlements, 316–317, 320 ownership rights, 194 Palocci, Antonio, 296 Panguna mine, 236, 239 Papua New Guinea, 10–11 Western Province, 235, 237, 239 Papua New Guinea Sustainable Development Program (PNGSDP), 238 paralegals, 39, 43–44 Paris Declaration on Aid Effectiveness, 131–132 patents, 89, 96 PEKKA, 40–41, 229 People’s Courts, 182, 188–189, 193 People’s Republic of China. See China Index 355 Permanent Preservation Areas (Brazil), 321 petition system. See China: petition system Petrobrás, 284, 286, 297, 304 Pfizer Drugs for Neglected Diseases initiative and, 95 Global Health Fellows Program, 98–99 health care initiatives, 98–99 joint venture with GSK, 97–98 joint venture with ViiV Healthcare, 97–98 research on NTDs, 94–95 TDR program, 99 pharmaceutical industry, 12–13, 91–100 HIV/AIDS research, 97–98 licensing, 96–97 patents, 89, 96 regulation of, 93–94 research and development, 91–92, 94–97 technology transfer and, 94–100 vaccine development, 95–96 Philippines, 253 PITCE, 290, 301 Plano Real, 283, 285, 289, 299–300 policy making innovation, 281, 289–292, 299, 305–307, 311–314 structural elements, 297–303 political corruption, 254, 260 political economy, 290, 296, 298, 304–306, 311, 313 political economy approach (in agreement implementation), 236 political leaders. See Politically exposed persons (PEPs) political leadership, 199–200 political representation quotas, 217 political statements (international), 129–132 politically exposed persons (PEPs), 253–264 politics and law committees (China), 187, 193 Port Louis treaty. See OHADA poverty alleviation, 45, 47, 51, 282–283, 287– 289, 292–295, 298, 300, 305, 310, 312 Préval, René, 258 privatization, 5 Program for Productive Development (Brazil), 290–292 Property Law (2007; China), 194 property rights, 6, 8, 35–36, 42–43, 194–195, 205, 210, 220–221, 227–229 private, 202, 207–208, 211 public health law, 196–197 Public Ministry (Brazil), 9, 315–322 extrajudicial activities, 316–317 Prosecution Office of Rio Sao Francisco, 319 public-private partnerships, 4–5, 8, 283–285, 288–292, 297, 301, 303, 305, 308–310 Reconstruction of Aceh Land Administration System, 6–7, 222–223 Regulations. See Government regulation rehabilitation through labor system (China), 193 research and development, 23–24 revised compensation agreements. See Community Mine Continuation Agreements RIAA. See Switzerland: Return of Illicit Assets Act (RIAA) Roussef, Dilma, 288–289, 291–293, 313 rule of law, 3, 5, 161, 165, 169–171, 174, 208, 212 and development, 32–34 and empowerment of the poor, 31–35 and justice innovation, 28–29 as a measure of legal development, 179–200 assistance programs, 18 exclusion from, 35–37 innovative, 180 orthodoxy, 12, 34, 45, 48–51 plan, 20 politicization, 27 Rural Land Contracting Law (2002; China), 194 rural poor, 67–70, 74–76, 79–80, 85 Samata. See Banchte Shekha Sanctions. See World Bank: sanctions system Self-Employed Women’s Association (India), 217 Serra da Moeda, 320–321 shalish, 10 arbitration, 70, 73–74 defined, 70 NGO-organized, 76–81, 85 Sharia law, 28, 74–76 Sierra Leone, 39–40, 43–44 Social Assistance Act (LOAS; Brazil), 288 social conflict, 315–322 social control, 73–75, 85 social justice, 85–86 social policy, 9 socialism, primary stage of (concept), 209 socialist legal system with Chinese characteristics, 185 socialist market economy, 202, 208, 211 sociocultural norms, 230–231 soft law, 129–132 state-owned enterprises, 282, 284–285 286, 287, 294, 298, 302 Supreme People’s Court (SPC), 182, 186, 188–190, 192, 197 Swedish International Development Cooperation Agency, 136–137 Index356 Switzerland Federal Act on International Mutual Assistance in Criminal Matters, 255–256, 258 Federal Act Pertaining to the Sharing of Confiscated Assets, 256 Federal Council, 257–261 institutional structure, 254–256 Lausanne Seminars, 262 legal structure, 254–256 Return of Illicit Assets Act (RIAA), 256–261 Synflorix, 95 TDR (Training in Tropical Diseases) program, 99 technological innovation, 90–91 technology transfer, 12–13, 90, 91–94 term of conduct adjustments (TCAs). See Out- of-court settlements Thailand, 54–55 three represents (concept), 202, 210 traditional justice systems, 10 and international development, 85–88 obstacles to, 69–70 research on, 82–85 Training in Tropical Diseases program. See TDR Transparency International, 260 TRIPS. See Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Tunisia, 25–28, 260–262 UNICEF Convention on the Rights of the Child, 137–138 Unified Judicial Exam, 187–188 Unified Social Assistance System (Brazil), 293 uniform law, 324, 328–332, 337–346. See also OHADA: Uniform Acts Union Parishads, 73–74, 77, 82–83, 88 United Nations Commission on Legal Empowerment of the Poor (CLEP), 6, 34–38, 42 Convention Against Illicit Traffic in Narcotic Drugs, 266, 268 Convention Against Transnational Organized Crime, 266 Convention on the Rights of Persons with Disabilities (see under Convention) Convention to Eliminate All Forms of Discrimination Against Women, 214, 228 Declaration on the Right to Development, 129–130 Delivering Justice program, 17 Financial Action Task Force, 267 Guiding Principles on Business and Human Rights, 150–151, 154 human rights treaties, 135–136, 157 Office of the High Commissioner for Human Rights, 131, 144, 157 Office on Drugs and Crime, 266 Respect, Protect, and Remedy Framework, 142, 150n164 support for asset sharing, 266–267 TDR program, 99 Universal Declaration of Human Rights, 35, 136–137 United Nations Development Group, 136 United Nations Development Programme (UNDP), 67, 80, 82, 85, 88 US Department of Justice administrative forfeiture procedure, 269–270 Asset Forfeiture Program, 272–273 civil judicial forfeiture procedure, 270–271 IASPs, 267–278 international sharing program, 273–278 case-specific agreements (CSSAs), 274–278 determining percentage shared, 276–277 negotiation process, 277–278 reviewing process, 275 judicial forfeiture procedure, 270 statutory authority for asset forfeiture, 268–269 Vargas, Getulio, 284–285 Vienna Convention on the Law of Treaties, 151–152, 158 Vienna Declaration and Programme of Action, 130 Vietnam, 230 ViiV Healthcare, 97–98 Village Courts Act (2006; Bangladesh), 82 violence against women legal pluralism on, 226–227 legislation on, 216, 223–224 sociocultural norms and, 231 Wainetti, Ume, 241–242 Wang Shenjun, 192 Washington Consensus, 282–284, 305 Water Law (1997; Brazil), 318 water resources management, 318–319 Watson, Alan, 161–166 Weimar Constitution (Germany; 1918), 201 welfare state, 283–284, 287–288, 293, 300, 309 Index 357 Wen Jiabao, 199 Western cultural influences on Chinese legal thought, 179–181, 189, 198 WIPO (World Intellectual Property Organization), 13, 91, 312 WIPO Re:Search, 8–9 Women in Mining (conference), 235 Women’s Legal Empowerment program, 41–42 women’s rights, 6, 10–11, 74–75, 77–79, 84–87 economic participation, 224–225, 227, 231 employment, 216, 224–225 entitlements as legally enforceable right, 235 family bank accounts, 245–246 scholarships, 246–247 guidance for negotiating agreements, 250–251 legal pluralism and, 225–228 markets and, 214 marriage laws and, 220–221 mobility, 230–231 Ok Tedi agreement negotiations, 234, 240–250 property rights, 227–229 World Bank policies and, 222–225 World Bank projects and, 229–230 Women, Business, and the Law 2012, 216, 219– 220, 224, 230 Workers Party (Brazil), 295–296, 301–302 Working Group on Trade and Transfer of Technology, 91 World Bank, 84, 133, 213, 260, 262, 303–304, 343 and international organizations, 106, 110, 113 Articles of Agreement, 5–6 Ecuador Judicial Reform Project, 39 Global Forum on Law, Justice and Development, 65, 112 Integrity Vice Presidency (INT), 109 Investment Climate Advisory Service, 337, 344 Justice for the Poor program, 39–40 legal empowerment of the poor, 33, 38–41 Open Society Justice Initiative, 44 Sanctions Board, 116–117 Sanctions Board Law Digest, 117 sanctions system, 12, 101–121 and “legalism,” 106–107 and innovation, 107–110, 118 and multilateral development banks, 108, 110 and transparency, 110–121 debarment, 103–105 expansion of, 107–110 legal orientation of, 113–118 TDR program, 99 Women in Mining and Petroleum project, 240 women’s land rights and, 222–225 women’s rights and, 229–230, 232 Workshop on the Development Implications of Gender-Based Violence, 228–229 World Bank Inspection Panel, 111–112 World Development Report 2012: Gender Equality and Development, 213–214, 219 World Health Organization (WHO), 13, 94 Career Development Fellowship program, 99 World Intellectual Property Organization. see WIPO World Trade Organization (WTO), 13, 89, 91n10, 141, 179, 181–182, 185, 303, 307, 311–312 Wu Bangguo, 161nn1–2, 185 xinfang system. See China: petition system Zambia, 55 Zhang Xianzhu, 196–197 Cover Contents Foreword Preface Contributors Empowerment and Innovation Strategies for Law, Justice, and Development The Justice Innovation Approach: How Justice Sector Leaders in Development Contexts Can Promote Innovation Legal Empowerment of the Poor: Past, Present, Future Beyond the Orthodoxy of Rule of Law and Justice Sector Reform: A Framework for Legal Empowerment and Innovation through the Convention on the Rights of Persons with Disabilities The Political Economy of Improving Traditional Justice Systems: A Case Study of NGO Engagement with Shalish in Bangladesh Intellectual Property: Facilitating Technology Transfer for Development Transforming through Transparency: Opening Up the World Bank’s Sanctions Regime Human Rights and Development: Regime Interaction and the Fragmentation of International Law Legal Transplantation and Legal Development in Transitional China Rule of Law as a Watermark: China’s Legal and Judicial Challenges Achieving Development through Innovative Constitutionalism: A China Story The Role of Laws and Institutions in Expanding Women’s Voice, Agency, and Empowerment “We Want What the Ok Tedi Women Have!” Guidance from Papua New Guinea on Women’s Engagement in Mining Deals Innovation in Asset Recovery: The Swiss Perspective International Asset Sharing: A Multipurpose Tool for Development Toward a New Law and Development: New State Activism in Brazil and the Challenge for Legal Institutions The Role of the Public Ministry in the Defense of the Environment: Hydrogeographical Regions and Attitudes for Coping with Socioenvironmental Conflicts OHADA Nears the Twenty-Year Mark: An Assessment Legal Innovation for Development: The OHADA Experience Index A B C D E F G H I J K L M N O P R S T U V W X Z 
work_hbqvu2bdyjfrnjcicjtznrdhei	----	Good for self or good for others? The well-being benefits of kindness in two cultures depend on how the kindness is framed UC Riverside UC Riverside Previously Published Works Title Good for self or good for others? The well-being benefits of kindness in two cultures depend on how the kindness is framed Permalink https://escholarship.org/uc/item/3g5449hf Journal JOURNAL OF POSITIVE PSYCHOLOGY, 15(6) ISSN 1743-9760 Authors Shin, Lilian J Layous, Kristin Choi, Incheol et al. Publication Date 2020-11-01 DOI 10.1080/17439760.2019.1651894 Peer reviewed eScholarship.org Powered by the California Digital Library University of California https://escholarship.org/uc/item/3g5449hf https://escholarship.org/uc/item/3g5449hf#author https://escholarship.org http://www.cdlib.org/ Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rpos20 The Journal of Positive Psychology Dedicated to furthering research and promoting good practice ISSN: 1743-9760 (Print) 1743-9779 (Online) Journal homepage: https://www.tandfonline.com/loi/rpos20 Good for self or good for others? The well-being benefits of kindness in two cultures depend on how the kindness is framed Lilian J. Shin, Kristin Layous, Incheol Choi, Soojung Na & Sonja Lyubomirsky To cite this article: Lilian J. Shin, Kristin Layous, Incheol Choi, Soojung Na & Sonja Lyubomirsky (2019): Good for self or good for others? The well-being benefits of kindness in two cultures depend on how the kindness is framed, The Journal of Positive Psychology, DOI: 10.1080/17439760.2019.1651894 To link to this article: https://doi.org/10.1080/17439760.2019.1651894 View supplementary material Published online: 14 Aug 2019. Submit your article to this journal Article views: 62 View related articles View Crossmark data https://www.tandfonline.com/action/journalInformation?journalCode=rpos20 https://www.tandfonline.com/loi/rpos20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/17439760.2019.1651894 https://doi.org/10.1080/17439760.2019.1651894 https://www.tandfonline.com/doi/suppl/10.1080/17439760.2019.1651894 https://www.tandfonline.com/doi/suppl/10.1080/17439760.2019.1651894 https://www.tandfonline.com/action/authorSubmission?journalCode=rpos20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=rpos20&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/17439760.2019.1651894 https://www.tandfonline.com/doi/mlt/10.1080/17439760.2019.1651894 http://crossmark.crossref.org/dialog/?doi=10.1080/17439760.2019.1651894&domain=pdf&date_stamp=2019-08-14 http://crossmark.crossref.org/dialog/?doi=10.1080/17439760.2019.1651894&domain=pdf&date_stamp=2019-08-14 Good for self or good for others? The well-being benefits of kindness in two cultures depend on how the kindness is framed Lilian J. Shina, Kristin Layousb, Incheol Choic, Soojung Nac* and Sonja Lyubomirskya aDepartment of Psychology, University of California, Riverside, CA, USA; bDepartment of Psychology, California State University, East Bay, Hayward, CA, USA; cDepartment of Psychology, Seoul National University, Seoul, South Korea ABSTRACT In light of cultural differences in conceptions of happiness, we investigated whether members of independent (vs. interdependent) cultures would benefit from prosocial behavior when self-focus is highlighted (vs. when other-focus is highlighted). In a 1-week randomized controlled intervention, U.S. (N = 280) and South Korean (N = 261) participants were randomly assigned to read a news article that described kind acts as good for oneself or good for others, or to read a control article. All participants then performed kind acts throughout the week, and completed pre- and post- measures of subjective well-being, connectedness, competence, and autonomy. Consistent with independent self-construals, U.S. participants who read that kindness was good for themselves showed greater increases in positive affect, satisfaction with life, and feelings of connectedness – and greater decreases in negative affect – than those who read the control article. Future research is needed to continue developing culturally-sensitive designs of positive activities. ARTICLE HISTORY Received 19 June 2019 Accepted 19 July 2019 KEYWORDS Well-being; culture; kind acts; framing; need satisfaction The pursuit of happiness is a global phenomenon, regularly dominating cultural discourse, popular media, and people’s closely held goals (Diener, 2000). Not surprisingly, psychological scientists have been exploring specific strategies – or positive activities – that can sustainably improve happiness. Positive activ- ity interventions experimentally test the practice of simple, self-administered cognitive and behavioral stra- tegies that can increase subjective well-being by pro- moting positive feelings, positive thoughts, and positive behaviors (Layous & Lyubomirsky, 2014). For example, activities such as counting one’s blessings (Chancellor, Layous, & Lyubomirsky, 2015; Emmons & McCullough, 2003; Froh, Sefick, & Emmons, 2008; Seligman, Steen, Park, & Peterson, 2005), writing letters of gratitude (Boehm, Lyubomirsky, & Sheldon, 2011; Layous, Lee, Choi, & Lyubomirsky, 2013; Layous et al., 2017; Lyubomirsky, Dickerhoof, Boehm, & Sheldon, 2011; Seligman et al., 2005), and performing acts of kindness (Chancellor, Margolis, Jacobs Bao, & Lyubomirsky, 2018; Dunn, Aknin, & Norton, 2008; Layous et al., 2013; Nelson et al., 2015; Nelson, Layous, Cole, & Lyubomirsky, 2016; Sheldon, Boehm, & Lyubomirsky, 2012) have been shown to reliably boost well-being. If administered optimally, positive activity interventions can also build positive psychological resources such as social connections and meaning in life, as well as ameliorate existing maladaptive symptoms such as anxiety and rumination (Layous, Chancellor, & Lyubomirsky, 2014; Seligman, Rashid, & Parks, 2006; Seligman et al., 2005; Shin & Lyubomirsky, 2016; Sin & Lyubomirsky, 2009; Taylor, Lyubomirsky, & Stein, 2017). A notable criticism of current research testing posi- tive activity interventions is that their trials have been conducted on primarily Anglo/European (i.e., Western) samples (Shin & Lyubomirsky, 2017; but see Layous et al., 2013; Titova, Wagstaff, & Parks, 2017, for exceptions). Because Asians comprise 60 per- cent of the world’s population (Population Reference Bureau, 2014) and Asian Americans are the fastest- growing minority group in the U.S., there is a critical need to address these groups’ mental health needs (U.S. Census, 2010). For example, South Korea cur- rently has the highest rate of hospitalizations for mental illness and the highest suicide rate for a member country of the Organization for Economic Cooperation and Development (WHO, 2017). Self- administered positive activities may be especially valuable for Asians and Asian Americans because they are relatively less stigmatizing, low-cost, and carry minimal side effects. CONTACT Lilian J. Shin LShin004@ucr.edu *Soojung Na is presently at Department of Neuroscience, Icahn School of Medicine at Mount Sinai. Supplemental data for this article can be accessed here. THE JOURNAL OF POSITIVE PSYCHOLOGY https://doi.org/10.1080/17439760.2019.1651894 © 2019 Informa UK Limited, trading as Taylor & Francis Group https://doi.org/10.1080/17439760.2019.1651894 http://www.tandfonline.com https://crossmark.crossref.org/dialog/?doi=10.1080/17439760.2019.1651894&domain=pdf&date_stamp=2019-08-13 Subjective well-being in independent versus interdependent cultures Although the need for research on strategies to improve mental health among Asians and Asian Americans is clear, investigators should be careful not to assume a one-size-fits-all approach, due to cultural differences in Western and Eastern conceptions of well-being. A widely used definition of subjective well- being in Western (independent) cultures is ‘a prepon- derance of positive affect over negative affect’ and ‘a global satisfaction with one’s life’ (Diener, 1984). In recent years, however, psychologists have sought to distinguish Eastern notions of well-being from those of Western traditions, defining interdependent subjective well-being as ‘the global, subjective assessment of whether one is interpersonally harmonized with other people, being quiescent, and being ordinary, and con- nected to the collective way of well-being’ (Hitokoto & Uchida, 2015, p. 214). These differences in conceptions of subjective well-being build upon Markus and Kitayama’s (1991) work on independent and interdependent self-construals. Markus and Kitayama (1991) define an independent self-construal as a view of the self in which Western individuals see themselves as autonomous entities who assert their rights and act agentically. In contrast, they define the Eastern, interdependent self-construal as a view of oneself as connected, relational, and belonging to a larger social group. These distinct self-views have been found to be associated with socially disengaging and socially engaging behaviors, respectively. Socially disengaging behaviors, such as asserting and protecting one’s rights, acting on the basis of one’s own judgments, and separating or distinguish- ing the self from the context, have been associated with independence and interpersonal disengage- ment of the self in the U.S. (Kitayama, Markus, & Kurokawa, 2000). Applying the concept of indepen- dent self-construal to the pursuit of happiness, sub- jective well-being in Western cultures is generally characterized by an explicit striving for one’s indivi- dual or personal happiness that may involve master- ing one’s environment and achieving goals (including social goals) independently (Uchida, Norasakkunkit, & Kitayama, 2004). In other words, with an independent approach to pursuing subjec- tive well-being, the ultimate goal is personal happi- ness, even if this pursuit may involve other people in the process. Socially engaging behavior, on the other hand, involves taking one’s proper place, perfecting one’s roles, empathizing with others, acting on the bases of others’ expectations, and blurring the distinction between self and others. This type of behavior is preva- lent in East Asian cultures and has been associated with interdependence and interpersonal engagement of the self (Kitayama et al., 2000). Subjective well-being in Eastern cultures thus emphasizes connectedness, group harmony, and the well-being of the collective group (Hitokoto & Uchida, 2015; Uchida et al., 2004) – that is, the ultimate goal is not one’s distinct personal happiness but rather the well-being of the group through harmo- nious and fulfilling relationships. As a case in point, American students’ happiness has been found to be highly correlated with interpersonally disengaged emo- tions such as pride, whereas the happiness of Japanese counterparts has been found to be more closely linked to interpersonally engaged emotions such as friendly feelings towards others (Kitayama, Mesquita, & Karasawa, 2006). Given the different approaches to well-being observed in Western and Eastern cultures, in the cur- rent study, we aimed to test whether framing a validated positive activity (i.e., doing acts of kindness) as good for the self would be additionally beneficial for increasing subjective well-being in a U.S. sample and whether framing it as good for others would be addi- tionally beneficial in a South Korean sample. In other words, by framing a traditional kindness intervention in two different ways, we sought to test cultural differ- ences in the factors that contribute to well-being. Kind acts in independent and interdependent cultures Behaving prosocially has been reliably shown to increase well-being in individuals from Western, inde- pendent cultures (Dunn et al., 2008; Layous et al., 2013; Lyubomirsky, Sheldon, Schkade, 2005; Nelson et al., 2015, 2016; Sheldon et al., 2012). Evidence is mounting, however, that remembering and enacting kindness are positive activities that have the potential to be equally successful in Eastern, interdependent cultures due to their positive focus on others (Layous et al., 2013; Nelson et al., 2015; Otake, Shimai, Tanaka- Matsumi, Otsui, & Fredrickson, 2006). For example, a study in Japan reported that people increased in subjective well-being and became more kind and grateful after counting their own kind acts over the course of 1 week (Otake et al., 2006). In another study, South Koreans showed similar increases in well-being as did Americans when performing acts of kindness (Layous et al., 2013). 2 L. J. SHIN ET AL. Additionally, self-determination theory postulates that humans have three basic needs – including auton- omy (control over one’s choices), competence (feeling that one is effective and skilled), and relatedness (i.e., connectedness; feeling close and connected to others) – and that the fulfillment of these needs is associated with greater psychological well-being (Deci & Ryan, 2000). Paralleling findings in the U.S., engaging in autonomous prosocial behavior in South Korea led to improvements in participants’ subjective well-being, as well as in feelings of autonomy, competence, and con- nectedness (Nelson et al., 2015). As a whole, these results suggest that practicing prosocial behaviors is indeed beneficial to individuals from Eastern cultures. Importantly, not all positive activities work equally well across cultures. As a case in point, when U.S. and South Korean participants were randomly assigned to express gratitude or to perform kind acts, U.S. participants benefitted from both activities, whereas South Koreans benefitted only from perform- ing kind acts but not from expressing gratitude (Layous et al., 2013). The researchers surmised that the South Koreans did not derive as much benefit from practicing gratitude because they felt indebted and/or guilty about being the recipient of others’ kind acts. This interpretation aligns with the idea that interdependent subjective well-being is concerned with the mainte- nance of interpersonal harmony, the welfare of the collective group, and the fulfillment of role obligations in relationships. Consistent with this notion, prosocial behavior may boost East Asians’ well-being by contributing to the expected norms of maintaining the well-being of the collective group. By contrast, for Western (i.e., European or North American) individuals, prosocial behavior may serve to boost well-being because it is relatively less expected and/or confirms that one is a good person. Thus, framing prosocial behavior as good for the self may enhance its ability to increase well-being among a Western sample, whereas framing it as good for others may make it more likely to increase well-being among an Eastern sample. To investigate the idea that members of indepen- dent cultures benefit from prosocial behavior when self-focus is highlighted, whereas members of interde- pendent cultures benefit when other-focus is high- lighted, we designed a 1-week randomized controlled intervention. Participants from the U.S. (independent culture) and South Korea (interdependent culture) were randomly assigned to read a news article that described kind acts as good for oneself or good for others, or to read a control article about the benefits of being organized. All participants were then asked to perform kind acts throughout the week and completed both baseline and post-intervention measures of sub- jective well-being, connectedness, competence, and autonomy. Hypotheses First, we predicted that, due to their independent orien- tation, U.S. participants who read that performing kind acts is good for themselves (i.e., with ‘good for self’ framing) and then perform them would experience greater gains in subjective well-being (namely, increased positive affect, decreased negative affect, and increased life satisfaction), as well as in autonomy, competence, and connectedness, than those who per- form kind acts without any framing (i.e., controls; Hypothesis 1). In contrast, we hypothesized that, due to their inter- dependent orientation, South Koreans who read that kind acts are good for others (i.e., ‘good for others’ framing) and perform them would experience larger improvements in subjective well-being and need satis- faction than controls (i.e., no framing; Hypothesis 2). Method Participants Two samples of students were recruited for this study. The first group comprised undergraduates (n = 309) attending the University of California, Riverside (UCR) – a diverse, large public university in the United States – who completed the study in exchange for course credit. In this group, 29 participants were removed from the sample because they failed to complete the second time point, leaving a total of 280 participants (67% female), ages 18 to 35 (Mage = 19.2, SD = 1.65). Fifty-two percent of participants were Asian/Asian American, 28% Hispanic/Latino(a), 7% White/Caucasian, 3% Black/ African American, and 10% Other/More than one (see Discussion on implications of ethnic identification of U.S. participants). A chi-square test of independence revealed that the participants who failed to complete the second time point did not vary by condition from those who did complete it, χ2 (2, N = 309) = 1.83, p = .40. Drop-out status was examined as a predictor of all of our dependent variables, but no significant differences were found between U.S. participants who remained in the study until the end and those who dropped out after the first timepoint (all ts(307) < |.81|; all ps > .42). Final sample sizes per condition in the U.S. were as follows: Good for Self (n = 112), Good for Others (n = 87), and Control (n = 81). A statistical power THE JOURNAL OF POSITIVE PSYCHOLOGY 3 analysis software program, G*Power 3.1, revealed that for a small effect size (f = .16) and an alpha value of .05, 280 participants in three groups could detect the effect with 79% power (Faul, ErdFelder, Lang, & Buchner, 2007). Chi-square tests of independence indicated that gender, χ2 (4, N = 279) = 4.37, p = .36, and ethnicity, χ2 (12, N = 279) = 11.16, p = .52, did not vary by condition for the U.S. participants. The second group comprised undergraduates (n = 340) attending Seoul National University (SNU) – a large public university in South Korea – who also completed the study in exchange for course credit. In this group, 67 participants were removed for not com- pleting the second time point, leaving a total of 273 participants (48% female; 99% Korean, 1% other), ages 18 to 30 (Mage = 21.4, SD = 2.63). A chi-square test of independence revealed that the participants who dropped out did not vary by condition from the parti- cipants who completed, χ2 (2, N = 340) = 2.85, p = .24. Drop-out status did not significantly predict any of our dependent variables (all ts(338) < |1.09|; all ps > .28). Sample sizes per condition in S. Korea were as fol- lows: Good for Self (n = 88), Good for Others (n = 91), and Control (n = 94). For an alpha value of .05, 273 participants in 3 groups can detect a small effect size (f = .16) with 78% power. Finally, neither gender, χ2 (2, N = 273) = 3.31, p = .19, nor ethnicity, χ2 (2, N = 273) = 2.01, p = .37, varied by condition for South Korean participants. Design and procedure A 3 (Condition: Good for Self, Good for Others, Control) × 2 (Cultural Background: U.S., South Korea) × 2 (Time: baseline/pre-intervention, post-intervention) mixed fac- torial design was used in this study (see Figure 1 for study timeline and measures). At baseline, all participants completed demographics and several well-being measures (described below). All measures and intervention instructions were adminis- tered in English for U.S. participants and in Korean for South Korean participants. To create the Korean mea- sures and intervention instructions, the English mea- sures and instructions were translated into Korean by a bilingual speaker and then back-translated into English in order to confirm that the translations con- tained the same content as the English measures and instructions. Participants were then randomly assigned to read news articles – all ostensibly from TIME Magazine for U.S. participants and Naver News for S. Korean partici- pants – about how kindness benefits the self (Good for Self condition), how kindness benefits others (Good for Others condition), or how being organized benefits the self (neutral Control condition).1 As shown in Appendices A and D, the Good for Self group read about evidence that being kind can increase personal happiness, alleviate depression, and boost work productivity, and that these effects occur universally across many cultures. Participants in the Good for Others group read about how being kind can boost the positive emotions, self- esteem, feelings of connectedness, engagement at work, and health of the recipients of kindness, and that these effects are evident across many different cultures (see Appendices B and E). Finally, the Control group read about how organizational skills can increase efficiency, the management of responsibilities, and the attainment of personal goals (see Appendices C and F). After reading their assigned article, all participants were asked to perform acts of kindness for others. They could perform as many kind acts as they wanted, to whomever they chose, and with or with- out the beneficiary’s awareness; the only stipulation was that they were to be performed in all in one day. The instructions were as follows: Complete: Demographics, Positive and Negative Affect, Life Satisfaction, Psychological Needs Read: News Article* Complete: Report Kind Acts, Positive and Negative Affect, Life Satisfaction, Psychological Needs Perform Kind Acts BASELINE Day 1 POST-TEST Day 8 Figure 1. Study timeline and measures. *News Article Conditions: 1) Kindness is good for the self, 2) Kindness is good for others, or 3) Organization is good (control group) 4 L. J. SHIN ET AL. In our daily lives, we all perform acts of kindness for others. These acts may be large or small and the person for whom the act is performed may or may not be aware of the act. Examples include helping your par- ents cook dinner, doing a chore for your sister or brother, helping a friend with homework, visiting an elderly relative, or writing a thank you letter. During one day this week (any day you choose), you are to perform acts of kindness (as many as you want) – all in one day. The acts do not need to be for the same person, the person may or may not be aware of the act, and the act may or may not be similar to the acts listed above. Next week, you will report what acts of kindness you chose to perform. Please do not perform any acts that may place yourself or others in danger. After 1 week, participants logged back into the survey website, reported the kind acts they had performed that week, and completed post-manipulation measures of all of the constructs assessed at baseline. Measures Positive and negative affect Participants’ emotions were assessed using the Modified Differential Emotions Scale (mDES; Fredrickson, Tugade, Waugh, & Larkin, 2003). The mDES requires participants to recall and rate their strongest experience of a variety of positive emotions (e.g. ‘I have felt amused, fun-loving, silly’) and negative emotions (e.g. ‘I have felt angry, irritated, annoyed’) during the past week on a 5-point scale (0 = never, 5 = all of the time). The mDES includes a subscale for positive emotions (e.g., amusement, compassion, con- fidence; Cronbach’s α = .87 at baseline; α = .88 at post- intervention) and a subscale for negative emotions (e.g., anger, sadness, contempt; α = .85 at baseline; α = .88 at post-intervention). Life satisfaction To assess life satisfaction, participants completed the Satisfaction With Life Scale (SWLS; Diener, Emmons, Larsen, & Griffin, 1985). The SWLS consists of five items (e.g., ‘In most ways my life is close to my ideal’) rated on a 7-point scale (1 = strongly disagree, 7 = strongly agree). Cronbach’s α coefficients were .85 at baseline and .85 at post-intervention. Psychological need satisfaction Rooted in self-determination theory (Deci & Ryan, 2000), psychological need satisfaction assesses the degree to which people’s core needs are being met (Sheldon, Elliot, Kim, & Kasser, 2001; Sheldon & Hilpert, 2012). The Balanced Measure of Psychological Needs consists of 18 items, with six each representing autonomy (e.g. ‘I felt free to do things my own way’), connectedness (e.g. ‘I felt a sense of contact with people who care for me, and whom I care for’), and competence (e.g. ‘I felt that I was taking on and mastering hard challenges’ (1 = no agreement, 5 = much agreement; Sheldon et al., 2001). Due to relatively low reliability (α = .58 to .67) of the three types of need satisfaction, results were analyzed by examining the three positively-worded items only (and excluding the three reverse-scored items).2 Studies have suggested that reverse-scored items tend to load onto a separate factor than positively-worded items, compromising the scale’s validity (Gehlbach, 2015). For positively-worded connectedness items, α = .80 at baseline and α = .76 at post-intervention; for positively-worded competence items, α = .81 at baseline and α = .83 at post- intervention; for positively-worded autonomy items, α = .67 at baseline and α = .69 at post-intervention. Because the reliability of positively-worded autonomy items was still low, autonomy was removed when we analyzed the data. Acculturation To assess level of acculturation, Asian and Asian American participants in the U.S. completed a short version of the Suinn-Lew Asian Self Identity Acculturation scale (SL-ASIA; Suinn, Ahuna, & Khoo, 1992). The SL-ASIA consisted of 11 items (e.g., ‘Whom do you now associate with in the community?’) rated on a 5-point scale (1 = Almost exclusively Asians, Asian- Americans, Orientals, 5 = Almost exclusively Anglos, Black, Hispanics, or other non-Asian ethnic groups). An average was computed, with higher scores on this measure indicating greater acculturation. Cronbach’s α coeffi- cient was .80. Results Preliminary analyses We split the data by culture and analyzed participants’ baseline levels of all dependent variables for significant differences among conditions. (See Tables 1 and 2 for baseline and posttest means of all dependent vari- ables.) No differences were found. However, when we explored baseline differences by culture, collapsing across conditions, we found that the U.S. participants started with much higher baseline scores in positive affect, F(1, 643) = 65.71, p < .001, life satisfaction, F(1, 643) = 19.83, p < .001, connectedness, F(1, 643) = 12.66, p < .001, and competence, F(1, 643) = 12.85, p < .001. Because Americans and Koreans seemed to fundamen- tally differ in their initial subjective well-being and need satisfaction, we decided to analyze our results sepa- rately by culture. THE JOURNAL OF POSITIVE PSYCHOLOGY 5 Manipulation check To ensure that the framing kindness articles were dif- ferent in the ways that we intended (e.g. vis-à-vis their implied benefits to self vs. others), we asked indepen- dent raters to judge the English and Korean articles for the number of good-for-others benefits and the num- ber of good-for-self benefits. ICCs for the English and Korean raters ranged from .69 to .98 for the 3 articles, which are considered good to excellent reliabilities (Fleiss, 1986). As intended, in both the English and Korean articles, more good-for-self benefits (M = 7.00 and M = 6.33 for English and Korean, respectively) than good-for-others benefits (M = 0.67; M = 2.00) were counted in the good-for-self article; more good-for- others benefits (M = 6.67; M = 6.00) than good-for-self benefits (M = 1.00; M = 4.00) were counted in the good- for-others article; and, finally, more good-for-self bene- fits (M = 6.33; M = 10.33) than good-for-others benefits (M = 0.00; M = 0.00) were counted in the control article. Changes in subjective well-being, connectedness, and competence Using the data set combined from both cultures, we also examined whether any dependent variables dif- fered as a function of time, condition, and culture. The F-test for the Time X Condition X Culture inter- action was significant for life satisfaction, F(2, 547) = 4.51, p = .01, and connectedness F(2, 547) = 3.27, p = .04. However, in view of our hypotheses, we were most interested in the planned contrast analyses reported below. United States To test Hypothesis 1, we first calculated difference scores by subtracting Time 1 from Time 2 dependent variables – namely, positive emotions, negative emotions, life satis- faction, connectedness, and competence.3 We then con- ducted planned contrasts on these difference scores to compare the Good for Self (+1), Good for Others (0), and Control (−1) conditions in both the U.S. and South Korean groups. The results of these analyses are shown in Table 1 and Figures 2 and 3. In support of Hypothesis 1, U.S. students who read that kindness was good for themselves showed greater increases in positive affect, tcontrast(277) = 3.25, p = .001, satisfaction with life, tcontrast (277) = 2.80, p = .01, feelings of connectedness, tcontrast (277) = 2.58, p = .01, and greater decreases in negative affect, tcontrast(277) = −2.19, p = .03, than those who read that organization was good (control). No differences were found between conditions in the U.S. for compe- tence, tcontrast(277) = .55, p = .58. Notably, our U.S. sample included students from diverse backgrounds, including members of interde- pendent cultures, limiting the validity of the com- parisons we could make to Asian students in Asia. In fact, only 7% of our sample identified as White/ Caucasian, the prototypical race/ethnicity associated with individualism, whereas 52% identified as Asian/ Asian American and 28% as Hispanic/Latino(a) – ethnic groups that have interdependent cultural Table 1. Cell means (Standard Deviations) and results of planned contrast analyses on U.S. Sample. Self (+1) Other (0) Control (−1) Dependent variable Time 1 M (SD) Time 2 M (SD) Time 1 M (SD) Time 2 M (SD) Time 1 M (SD) Time 2 M (SD) t (df) p Well-being Positive affect (mDES) 3.33 (0.65) 3.46 (0.62) 3.45 (0.66) 3.44 (0.75) 3.42 (0.64) 3.26 (0.76) 3.25 (277) 0.001** Negative affect (mDES) 2.24 (0.72) 2.12 (0.79) 2.32 (0.74) 2.22 (0.79) 2.14 (0.65) 2.23 (0.81) −2.19 (277) 0.03* Satisfaction With Life 4.46 (1.16) 4.68 (1.22) 4.56 (1.29) 4.49 (1.23) 4.83 (1.20) 4.66 (1.22) 2.80 (277) 0.01* Need Satisfaction Connectedness 3.77 (0.77) 3.82 (0.76) 3.78 (0.83) 3.75 (0.86) 3.88 (0.87) 3.58 (0.85) 2.58 (277) 0.01* Competence 2.99 (0.86) 3.15 (0.82) 3.05 (0.96) 3.10 (0.88) 3.23 (0.91) 3.28 (0.96) 0.55 (277) 0.58 Note. *p < .05. ** p < .01. Table 2. Cell Means (Standard Deviations) and results of planned contrast analyses on south korean sample. Self (0) Other (+1) Control (−1) Dependent variable Time 1 M (SD) Time 2 M (SD) Time 1 M (SD) Time 2 M (SD) Time 1 M (SD) Time 2 M (SD) t (df) p Well-being Positive affect (mDES) 2.92 (0.67) 3.03 (0.66) 3.02 (0.60) 3.00 (0.59) 3.03 (0.63) 3.09 (0.58) −0.28 (270) 0.78 Negative affect (mDES) 2.40 (0.73) 2.28 (0.85) 2.26 (0.75) 2.20 (0.72) 2.28 (0.72) 2.30 (0.76) −1.28 (270) 0.20 Satisfaction With Life 4.11 (1.14) 4.12 (1.10) 4.26 (1.07) 4.24 (1.14) 4.26 (1.08) 4.47 (1.07) −1.04 (270) 0.30 Need Satisfaction Connectedness 3.47 (0.79) 3.55 (0.71) 3.63 (0.72) 3.46 (0.77) 3.58 (0.82) 3.57 (0.84) −1.35 (270) 0.18 Competence 2.71 (0.91) 2.79 (0.93) 2.85 (0.91) 2.89 (0.88) 2.82 (0.84) 2.78 (0.91) 0.79 (270) 0.43 Note. *p < .05. ** p < .01. 6 L. J. SHIN ET AL. roots (Schwartz, 2007; Shin & Lyubomirsky, 2016). To address this sample characteristic, we ran the ana- lyses exclusively with Asian Americans and found that the Asian Americans in our U.S. sample responded more similarly to the U.S. sample than they did to the South Korean sample. The only variable on which Asian Americans differed from the U.S. sample as whole – albeit marginally – was negative affect, tcontrast(142) = 2.39, p = .09. The other variables showed a similar pattern of effects as the U.S. sample as a whole. Additionally, the mean acculturation level of our Asian American participants was above the midpoint (3.07 on a 5-point scale), indicating that many of them identified at least to a moderate degree with American culture. We conducted regression analyses using acculturation level as a moderator and found that none of the outcome variables were affected by the acculturation level of the Asian Americans. These results support our rationale for using the U.S. participants as our independent cultural sample, despite the high proportion of Asian Americans in the sample. Nevertheless, to provide a sharper contrast to participants residing in Asia, future investigations should aim to include more Western-residing partici- pants with Anglo or European roots. South Korea We conducted parallel analyses (using the following contrast weights: Good for Others [+1], Good for Self [0], and control [−1]) to test Hypothesis 2; the results are shown in Table 2 and Figures 2 and 3. Failing to provide support for this hypothesis, South Korean stu- dents who read that kindness was good for others did Changes in Negative Affect US SK -0.4 -0.3 -0.2 -0.1 0 0.1 0.2 0.3 0.4 N eg at iv e A ffe ct ( m D E S ) Self Other Control Changes in Positive Affect US SK -0.4 -0.3 -0.2 -0.1 0 0.1 0.2 0.3 0.4 P os iti ve A ffe ct ( m D E S ) Self Other Control Changes in Satisfaction With Life US SK -0.4 -0.3 -0.2 -0.1 0 0.1 0.2 0.3 0.4 S at is fa ct io n W ith L ife Self Other Control The Journal of Positive Psychology Figure 2. Changes in subjective well-being for the Self, Other, and Control conditions in the U.S. and South Korea. Note. US = United States, SK = South Korea. Self = Good-for-Self framing, Other = Good-for-Other framing, Control = Organization is good framing. Data represent THE JOURNAL OF POSITIVE PSYCHOLOGY 7 not show greater increases in positive affect, life satis- faction, connectedness, or competence – or decreases in negative affect – compared to those in the control group (all tcontrasts < |1.35|; all ps > .18). Discussion This study tested whether individuals from indepen- dent cultures would benefit in subjective well-being, connectedness, and competence when self-related rewards of prosocial behavior are underscored, while those from interdependent cultures would benefit when other-related rewards are underscored. Summary of findings Supporting Hypothesis 1, U.S. participants who per- formed acts of kindness after reading that they were good for ‘them’ reported greater increases in positive affect, life satisfaction, and connectedness, as well as decreases in negative affect, than those who performed kind acts after reading a neutral framing. The article content may have helped explicate to individualists that they should be motivated to be prosocial because it could be a vehicle for the explicit pursuit of their happiness and also boost their self-esteem. Our results are consistent with the concept of independent subjective well-being, in that members of individualist cultures may benefit from prosocial behavior when it is explicitly framed as a way by which to pursue their personal happiness (Uchida et al., 2004). Another pos- sibility is that the benefits of kindness for others are obvious, so reading an article that frames kindness as good for others was not additionally motivating com- pared to reading an article that frames kindness as good for oneself. Indeed, these results provide addi- tional evidence in support of the existing research that prosocial behavior is an effective way to increase well-being in individualist cultures (Dunn et al., 2008; Layous et al., 2013; Lyubomirsky et al., 2005; Nelson et al., 2015, 2016; Sheldon et al., 2012). Our study, however, failed to support Hypothesis 2 for any of the outcome variables – namely, South Korean students who performed acts of kindness after reading that they were good for others did not increase in well-being, connectedness, and competence com- pared to those who performed acts of kindness after reading the neutral framing. Perhaps South Koreans do not experience additional gains in well-being from con- sidering kind acts as good for others (vs. performing them without reasons/framing) because, due to their interdependent values, the benefits to others are obvious and pointing them out does not provide any further advantage (Markus & Kitayama, 1991). Another Changes in Connectedness US SK -0.4 -0.3 -0.2 -0.1 0 0.1 0.2 0.3 0.4 C o n n e ct e d n e ss Self Other Control Figure 3. Changes in connectedness and competence for the Self, Other, and Control conditions in the U.S. and South Korea. Note. US = United States, SK = South Korea. Self = Good-for-Self framing, Other = Good-for-Other framing, Control = Organization is good framing. Data represent 8 L. J. SHIN ET AL. possible explanation is that the Good-for-Others article presented the benefits of doing kind acts for others’ individual well-being, rather than their benefits to inter- dependent well-being, such as group harmony. To bet- ter appeal to the concepts of well-being shared by members of interdependent cultures, future studies that manipulate the framing of positive activities for collectivist cultures might consider incorporating the benefits for in-group relationships and the group as a whole. Additionally, framing kindness as good for others for South Koreans – especially within close rela- tionships – may not be useful, because it might signal to them that those relationships are distant (Zhang, Li, Bai & Li, 2018). Finally, we may not have found signifi- cant well-being differences in South Korea (but did in the U.S.) because research shows that Americans tend to use more ‘extreme’ (e.g., never or always) responses on rating scales, whereas Koreans, with their preference for low-arousal emotions, are more likely to select answer choices in the middle or neutral point of the scale (Chen, Lee, & Stevenson, 1995; Mayer, Elliot, Haas, Hays, & Weinick, 2016). Limitations and future directions A limitation of our study was that we measured the individual well-being of our American and South Korean participants rather than their interdependent well-being. Hence, we may not have measured what South Koreans actually value as well-being or happi- ness. To assess interdependent subjective well-being from an emic approach, future investigators could incorporate a measure like the Interdependent Happiness Scale (IHS), which has been designed and validated in both Western and Eastern countries (Hitokoto & Uchida, 2015). This scale is designed to answer the questions, ‘Are we happy or not?’ or ‘Am I making others happy?’ rather than ‘Am I happy?’ By incorporating the IHS or similar measures, future researchers may be able to capture not only the happi- ness of individual participants, but also their experi- ences of group harmony and collective well-being, which are critical to the experience of interdependent subjective well-being. Despite this limitation, there is evidence that the IHS is strongly positively correlated with life satisfaction (r = .61) and positive affect (r = .61) and negatively correlated with negative affect (r = −.60), which were measured as outcomes in our study (Hitokoto & Uchida, 2015). Similarly, because collectivists value the appraisal of their lives by close others (Suh, Diener, & Updegraff, 2008), future investigators may wish to consider using alternative measures of life satisfaction that include asking collectivist participants how close others (e.g., family members) would evaluate their lives instead of merely asking how they themselves evaluate their own lives (as we did in the current study). Furthermore, it has also been suggested that researchers who study emotions in members of Asian cultures inquire about psychosomatic symptoms, which might allow Asians to convey their emotions indirectly and thus minimize disruption to relational harmony (Shin & Lyubomirsky, 2016; e.g., see the literature on somatization: Hong, Lee, & Lorenzo, 1995; Kleinman, 1982; Park & Bernstein, 2008; Parker, Cheah, & Roy, 2001; Zhou et al., 2015). Finally, although all three U.S. groups performed kind acts, the control group, which read about the benefits of being organized, displayed decreases in positive affect, satisfaction with life, and connectedness. We found it interesting that these control participants decreased in subjective well-being even after perform- ing kind acts; perhaps, this occurred as a result of a mismatch between what they were led to believe was good for them (organization) and the task they were asked to carry out (kind acts). South Koreans, however, may not have been as affected by this mis- match due to their patterns of dialectical thought and/ or respect for authority (Lu & Gilmour, 2004). To further unpack these results, future research could include comparison conditions with alternative ways of framing kind acts, such as a more neutral control article about kind acts (but not their benefits), or no framing at all. Finally, our U.S. participants who read that organization was good (and subsequently performed kind acts) did not show any differences in competence from partici- pants who learned that kindness is good for the self. We speculate that students who read that organization is helpful may have practiced more organizational skills in addition to kind acts during the intervention period, which, in turn, may have helped maintain their sense of competence. Concluding words The present study contributes to the sparse body of research about subjective well-being in independent versus interdependent cultures. Our results are consis- tent with the notion that Americans appear to value THE JOURNAL OF POSITIVE PSYCHOLOGY 9 independent subjective well-being, while raising ques- tions about what interdependent subjective well-being looks like in modern South Korea. With mental health concerns on the rise in Asian countries, we urge researchers to investigate the optimal design and implementation of positive activity interventions in interdependent cultures. Notes 1. Prior to the current study, we conducted a similar study in which participants read news articles about how happiness is good for the self, how happiness is good for others, or about how being organized was benefi- cial and found no significant differences between these framing conditions for any of the outcome variables, PA, NA, SWL, Connectedness, and Competence (all tcontrasts < |1.78|; all ps > .05). 2. For negatively-worded connectedness items, α = .44 at baseline and α = .43 at post-intervention; for nega- tively-worded competence items, α = .60 at baseline and α = .70 at post-intervention; for negatively-worded autonomy items, α = .57 at baseline and α = .63 at post- intervention. 3. Standardized difference score contrasts (Time 1 was standardized by Time 1 SDs and Time 2 was standar- dized by Time 2 SDs) produced the same (significant) results as the unstandardized contrasts reported in this paper. Disclosure statement No potential conflict of interest was reported by the authors. References Boehm, J. K., Lyubomirsky, S., & Sheldon, K. M. (2011). A longitudinal experimental study comparing the effective- ness of happiness-enhancing strategies in Anglo Americans and Asian Americans. Cognition & Emotion, 25(7), 1263–1272. Chancellor, J., Layous, K., & Lyubomirsky, S. (2015). Recalling positive events at work makes employees feel happier, move more, but interact less: A 6-week randomized con- trolled intervention at a Japanese workplace. Journal of Happiness Studies, 16(4), 871–887. Chancellor, J., Margolis, S. M., Jacobs Bao, K., & Lyubomirsky, S. (2018). Everyday prosociality in the workplace: The benefits of giving, getting, and glimpsing. Emotion, 18(4), 507–517. Chen, C., Lee, S., & Stevenson, H. W. (1995). Response style and cross-cultural comparisons of rating scales among East Asian and North American students. Psychological Science, 6(3), 170–175. Deci, E. L., & Ryan, R. M. (2000). Self-determination theory and the facilitation of intrinsic motivation, social development, and well-being. American Psychologist, 55(1), 68–78. Diener, E. (1984). Subjective well-being. Psychological Bulletin, 95(3), 542–575. Diener, E. (2000). Subjective well-being: The science of happi- ness and a proposal for a national index. American Psychologist, 55(1), 34–43. Diener, E., Emmons, R. A., Larsen, R. J., & Griffin, S. (1985). The satisfaction with life scale. Journal of Personality Assessment, 49(1), 71–75. Dunn, E. W., Aknin, L. B., & Norton, M. I. (2008). Spending money on others promotes happiness. Science, 319(5870), 1687–1688. Emmons, R. A., & McCullough, M. E. (2003). Counting blessings versus burdens: An experimental investigation of gratitude and subjective well-being in daily life. Journal of Personality and Social Psychology, 84, 377–389. Faul, F., ErdFelder, E., Lang, A.-G., & Buchner, A. (2007). G*Power 3.1 manual. Behavioral Research Methods, 39(2), 175–191. Fleiss, J. L. (1986). The design and analysis of clinical experi- ments. New York: John Wiley & Sons. Fredrickson, B. L., Tugade, M. M., Waugh, C. E., & Larkin, G. (2003). What good are positive emotions in crises? A prospective study of resilience and emotions follow- ing the terrorist attacks on the United States on September 11th, 2001. Journal of Personality and Social Psychology, 84, 365–376. Froh, J. J., Sefick, W. J., & Emmons, R. A. (2008). Counting blessings in early adolescents: An experimental study of gratitude and subjective well-being. Journal of School Psychology, 46(2), 213–233. Gehlbach, H. (2015). Seven survey sins. Journal of Early Adolescence, 35(5–6), 883–897. Hitokoto, H., & Uchida, Y. (2015). Interdependent happiness: Theoretical importance and measurement validity. Journal of Happiness Studies, 16, 211–239. Hong, G. K., Lee, B. S., & Lorenzo, M. K. (1995). Somatization in Chinese American clients: Implications for psychotherapeu- tic services. Journal of Contemporary Psychotherapy, 25(2), 105–118. Kitayama, S., Markus, H. R., & Kurokawa, M. (2000). Culture, emotion, and well-being: Good feelings in Japan and the United States. Cognition and Emotion, 14(1), 93–124. Kitayama, S., Mesquita, B., & Karasawa, M. (2006). Cultural affordances and emotional experience: Socially engaging and disengaging emotions in Japan and the United States. Journal of Personality and Social Psychology, 91(5), 890–903. Kleinman, A. (1982). Neurasthenia and depression: A study of somatization and culture in China. Culture, Medicine and Psychiatry, 6(2), 117–190. Layous, K., & Lyubomirsky, S. (2014). The how, why, what, when, and who of happiness: Mechanisms underlying the success of positive interventions. In J. Gruber & J. T. Moscowitz (Eds.), Positive emotion: Integrating the light sides and dark sides (pp. 473–495). New York: Oxford University Press. Layous, K., Chancellor, J., & Lyubomirsky, S. (2014). Positive activities as protective factors against mental health conditions. Journal of Abnormal Psychology, 123(1), 3–12. Layous, K., Lee, H., Choi, I., & Lyubomirsky, S. (2013). Culture matters when designing a successful happiness-increasing 10 L. J. SHIN ET AL. activity: A comparison of the United States and South Korea. Journal of Cross-Cultural Psychology, 44, 1294–1303. Layous, K., Sweeny, K., Armenta, C. N., Na, S., Choi, I., & Lyubomirsky, S. (2017). The proximal experience of gratitude. Plos One, 12(7), e0179123. Lu, L., & Gilmore, R. (2004). Culture and conceptions of happi- ness: Individual oriented and social oriented SWB. Journal of Happiness Studies, 5(3), 269–291. Lyubomirsky, S., Dickerhoof, R., Boehm, J. K., & Sheldon, K. M. (2011). Becoming happier takes both a will and a proper way: An experimental longitudinal intervention to boost well-being. Emotion, 11(2), 391–402. Lyubomirsky, S., Sheldon, K. M., & Schkade, D. (2005). Pursuing happiness: The architecture of sustainable change. Review of General Psychology, 9(2), 111–131. Markus, H. R., & Kitayama, S. (1991). Culture and the self: Implications for cognition, emotion, and motivation. Psychological Review, 98(2), 224–253. Mayer, L. A., Elliott, M. N., Haas, A., Hays, R. D., & Weinick, R. M. (2016). Less use of extreme response options by Asians to standardized care scenarios may explain some racial/ethnic differences in CAHPS scores. Medical Care, 54(1), 38–44. Nelson, S. K., Della Porta, M. D., Jacobs Bao, K., Lee, H. C., Choi, I., & Lyubomirsky, S. (2015). ‘It’s up to you’: Experimentally manipulated autonomy support for proso- cial behavior improves well-being in two cultures over six weeks. The Journal of Positive Psychology, 10, 463–476. Nelson, S. K., Layous, K., Cole, S., & Lyubomirsky, S. (2016). Do unto others or treat yourself?: The effects of prosocial and self-focused behavior on psychological flourishing. Emotion, 16(6), 850–861. Otake, K., Shimai, S., Tanaka-Matsumi, J., Otsui, K., & Fredrickson, B. L. (2006). Happy people become happier through kindness: A counting kindnesses intervention. Journal of Happiness Studies, 7(3), 361–375. Park, S.-Y., & Bernstein, K. S. (2008). Depression and Korean American immigrants. Archives of Psychiatric Nursing, 22(1), 12–19. Parker, G., Cheah, Y.-C., & Roy, K. (2001). Do the Chinese somatize depression? A cross-cultural study. Social Psychiatry and Psychiatric Epidemiology, 36(6), 287–293. Population Reference Bureau (2014). 2014 world population data sheet. Retrieved from http://www.prb.org/pdf14/2014- world-population-data-sheet_eng.pdf Schwartz, S. J. (2007). The applicability of familism to diverse ethnic groups: A preliminary study. The Journal of Social Psychology, 147(2), 101–118. Seligman, M. E. P., Rashid, T., & Parks, A. C. (2006). Positive psychotherapy. American Psychologist, 61(8), 774–788. Seligman, M. E. P., Steen, T. A., Park, N., & Peterson, C. (2005). Positive psychology progress: Empirical validation of interventions. American Psychologist, 60(5), 410–421. Sheldon, K. M., Boehm, J. K., & Lyubomirsky, S. (2012). Variety is the spice of happiness: The hedonic adaptation preven- tion (HAP) model. In I. Boniwell & S. David (Eds.), Oxford handbook of happiness (pp. 901–914). Oxford: Oxford University Press. Sheldon, K. M., Elliot, A. J., Kim, Y., & Kasser, T. (2001). What is satisfying about satisfying events? Testing 10 candidate psychological needs. Journal of Personality and Social Psychology, 80(2), 25–339. Sheldon, K. M., & Hilpert, J. C. (2012). The Balanced Measure of Psychological Needs (BMPN) scale: An alternative domain general measure of need satisfaction. Motivation and Emotion, 36(4), 439–451. Shin, L. J., & Lyubomirsky, S. (2016). Positive activity interven- tions for mental health conditions: Basic research and clin- ical applications. In J. Johnson & A. Wood (Eds.), The handbook of positive clinical psychology (pp. 349–363). New York: Wiley. Shin, L. J, & Lyubomirsky, S. (2017). Positive activity interven- tions for interdependent cultures. In S. Donaldson & M. Rao (Eds.), Scientific advances in positive psychology (pp. 11–36). Santa Barbara, CA: Praeger. Sin, N. L., & Lyubomirsky, S. (2009). Enhancing well-being and alleviating depressive symptoms with positive psychology interventions: A practice-friendly meta-analysis. Journal of Clinical Psychology, 65(5), 467–487. Suh, E. M., Diener, E., & Updegraff, J. A. (2008). From culture to priming conditions: Self-construal influences on life satis- faction judgments. Journal of Cross-Cultural Psychology, 39 (1), 3–15. Suinn, R. M., Ahuna, C., & Khoo, G. (1992). The suinn-lew asian self-identity acculturation scale: Concurrent and factorial validation. Educational and Psychological Measurement, 52 (4), 1041–1046. doi:10.1177/0013164492052004028 Taylor, C. T., Lyubomirsky, S., & Stein, M. B. (2017). Upregulating the positive affect system in anxiety and depression: Outcomes of a positive activity intervention. Depression and Anxiety, 34, 267–280. Titova, L., Wagstaff, A. E., & Parks, A. C. (2017). Disentangling the effects of gratitude and optimism: A cross-cultural investigation. Journal of Cross-Cultural Psychology, 48(5), 754–770. U.S. Census Bureau. (2010). Overview of race and Hispanic origin: 2010. Retrieved from http://www.census.gov/prod/ cen2010/briefs/c2010br-02.pdf Uchida, Y., Norasakkunkit, V., & Kitayama, S. (2004). Cultural constructions of happiness: Theory and empirical evidence. Journal of Happiness Studies, 5, 223–239. World Health Organization. (2017). Suicide rates, age-standardized data by country. Retrieved from http:// apps.who.int/gho/data/node.main.MHSUICIDEASDR?lang= en Zhang, N., Ji, L. J., Bai, B., & Li, Y. (2018). Culturally divergent consequences of receiving thanks in close relationships. Emotion, 18(1), 46–57. Zhou, X., Min, S., Sun, J., Kim, S. J., Ahn, J., Peng, Y., . . . Ryder, A. G. (2015). Extending a structural model of somatization to South Koreans: Cultural values, somati- zation tendency, and the presentation of depressive symptoms. Journal of Affective Disorders, 176, 151–154. THE JOURNAL OF POSITIVE PSYCHOLOGY 11 http://www.prb.org/pdf14/2014-world-population-data-sheet_eng.pdf http://www.prb.org/pdf14/2014-world-population-data-sheet_eng.pdf https://doi.org/10.1177/0013164492052004028 http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf http://apps.who.int/gho/data/node.main.MHSUICIDEASDR?lang=en http://apps.who.int/gho/data/node.main.MHSUICIDEASDR?lang=en http://apps.who.int/gho/data/node.main.MHSUICIDEASDR?lang=en Abstract Subjective well-being in independent versus interdependent cultures Kind acts in independent and interdependent cultures Hypotheses Method Participants Design and procedure Measures Positive and negative affect Life satisfaction Psychological need satisfaction Acculturation Results Preliminary analyses Manipulation check Changes in subjective well-being, connectedness, and competence United States South Korea Discussion Summary of findings Limitations and future directions Concluding words Notes Disclosure statement References 
work_hcnznfhsajhglkf47tfoslnhea	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_heeaydscafhg7hm5sgc2ihq66q	----	Northumbria Research Link Citation: Brants, Chrisje (2015) Complicated Legacies of Justice: The Netherlands and World War II. Journal of International Criminal Justice, 13 (4). pp. 763-781. ISSN 1478-1387 Published by: Oxford University Press URL: http://dx.doi.org/10.1093/jicj/mqv050 <http://dx.doi.org/10.1093/jicj/mqv050> This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/24152/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. Full items must not be sold commercially in any format or medium without formal permission of the copyright holder. The full policy is available online: http://nrl.northumbria.ac.uk/pol i cies.html This document may differ from the final, published version of the research and has been made available online in accordance with publisher policies. To read and/or cite from the published version of the research, please visit the publisher’s website (a subscription may be required.) http://nrl.northumbria.ac.uk/policies.html 1. Complicated Legacies of Justice: The Netherlands and World War II Chrisje Brants A. Introduction After the Second World War, a process of what we now call transitional justice was initiated in the Netherlands to deal with crimes committed during the German occupation. Known as ‘extraordinary justice’ (bijzondere rechtspleging), it featured a mixture of criminal, administrative and disciplinary courts and tribunals with special jurisdiction over collaboration, treason and crimes such as murder, torture and pillage. While the deportation and murder of some 75% of the country’s Jewish population in the death camps of Eastern Europe did figure in the extraordinary courts as the background to some of the crimes, it was not the main concern. Extraordinary justice was always highly politicised, based on the assumption that the good could be clearly separated from the bad, and aimed at ridding the country of all who had made the ‘wrong choice’, i.e. sympathised or colluded with National Socialism and/or the German occupier. Focussed on what was defined as individual political criminality, it left little scope for dealing with the bystander role of the majority of the Dutch population or with such institutions as the police and civic authorities in colluding in crimes of the occupation. Moreover, the necessity of stabilising the political situation and rebuilding a devastated country meant that within ten years of the process being wound up, most Dutch perpetrators had been released and business was back to normal. At least, so it seemed, but the social division between the right and the wrong, the good and the bad, and between the main group of victims of the war, the Jews, and the rest of society was to last for decades. For those arrested and detained and/or sentenced by the extraordinary courts and tribunals, and for many others whose attitude had simply been politically incorrect, ‘normal’ meant silence. Fear of others finding out and the ostracism that would inevitably follow, precluded their participation in discussions about the war or even talking about it at home; in any event, debate was impossible in terms other than those already firmly established in public discourse. For decades too, the murder of the Dutch Jews and the trauma of the survivors were shrouded in silence. What had happened, in particular in Amsterdam (where only 10% of the Jewish population survived), and what happened afterwards to the survivors were not issues that either the Jews or the Dutch population in general cared to discuss in public – and again, often not in private either. 1 As this wall of silence was very gradually broken down from the middle of the 1960’s, the fate of Dutch Jewry became what De Haan terms a ‘national trauma’. In his 1997 book on memory and the persecution of the Jews, he recounts what happened if people asked what he was writing about: ‘Simply answering: “the persecution of the Jews”, had the same effect as announcing an incurable disease at a birthday party.’ 2 This trauma does not refer specifically to that suffered by Jewish survivors, or even to the Holocaust as such. Rather, it concerns the difficulties of dealing with the impact of the emerging facts of the Holocaust and how it unfolded in the Netherlands. Van Sas describes the sustaining collective memory of the war as a ‘myth of resistance’ in which a person could be only hero or blackguard, inherent in which is the image of right and wrong: right = resistance, wrong = collaboration; there are no in- betweens. 3 According to Blom, this memory both informed and was reinforced by Dutch historiography, of which the leading perspective was that of oppression, resistance and collaboration, good and bad. He attributes this right-wrong dichotomy to a deep-rooted consensus that can be traced back to the period immediately after the war and the process of extraordinary justice. 4 In the current transitional justice debate, law, especially criminal law, is seen as well- nigh indispensable in attaining healing for societies torn by traumatic events and for the victims of those events. We only have to look at the discourse surrounding the Internaional Criminal Court (ICC), political, legal and academic, to discover that international criminal law is assumed to help end impunity, promote retribution, reconciliation and conflict 1 On the lack of public debate: J. Withuis, Jolande, Erkenning. Van oorlogstrauma naar klaagcultuur (De Bezige Bij, 2002); A. de Swaan, De maatschappelijke verwerking van oorlogsverledens, in: J. Dane (ed.) Keerzijde van de bevrijding. Opstellen over de maatschappelijke, psycho-sociale en medische aspecten van de problematiek van oorlogsgetroffenen (Van Loghum Slaterus, 1984), at 54-66; J.H. Schreuder, Wat niet weet, wat wél deert (Radboud University Nijmegen, 1999), on the traumatic effects of silence on the second generation. Specifically on Jewish survivors: D. Hondius, Return. Holocaust Survivors and Dutch Anti-Semitism (Praeger, 2003), at 118 ff. 2 I. de Haan, Na de ondergang. De herinnering aan de Jodenvervolging in Nederland (Sdu Uitgevers, 1997), at xiii. 3 N.C.F. van Sas, De metamorfose van Nederland. Van oude orde naar moderniteit 1750-1900 (Amsterdam University Press, 2004) at 63; see also C. van der Heijden, Grijs verleden. Nederland en de Tweede Wereldoorlog (Uitgeverij Contact, 2001). 4 Blom, J.C.H. , In de ban van goed en fout. Geschiedschrijving over de bezettingstijd in Nederland (Boom, 2007) at 9-12. solution, and provide recognition of and redress for victims which will then contribute to conflict resolution, reconciliation etc. in a presumed spiral of fortunate effects. 5 Extraordinary justice in the Netherlands appears to have had much more modest aims, although in its own way it was just as ambitious (and contradictory) as international criminal law, and was in any event seen as an indispensable means of dealing with the past and reinstating social order. However, after the courts had finished, those most affected – the good, the bad and the victims – had very different perceptions of the justice that had been done, indeed of whether justice had been done at all, but their voices were often drowned out in the prevailing good-bad discourse. This contribution asks how, in the social-political context of the time, extraordinary justice coloured perceptions of events, allowing some to flourish and creating a great silence and social division around others. How did those perceptions change, and with them, the nature of public debate? With the benefit of hindsight, the legacy of extraordinary justice may help us understand more about the significance – and limits – of criminal law in processes of transition. 6 B. Extraordinary Justice It is impossible to describe in detail here the inception of extraordinary justice, the ins and outs of its procedures and its gradual development into something different from what had been envisaged. Nevertheless, in order to understand both why the latter happened and what the consequences were, we need some idea of the legal framework, the assumptions upon which it rested and how it developed in practice. 1. Assumptions and legal framework As the war progressed, the Dutch government in exile in London began thinking about what should be done with collaborators. 7 They (the Government) felt swift, severe and just action was needed to prevent mob-justice, but, dependent on reports from the Dutch resistance, had 5 See J. E. Alvarez, Trying Hussein: Between Hubris and Hegemony, Journal of International Criminal Justice (2004) 319–29, who calls these goals ‘as ambitious as they are contradictory’. 6 See the introduction by N. Wouters to: N. Wouters (ed.), Transitional Justice and Memory in Europe (1945- 2013), (Intersentia, 2014), on the importance of history for understanding processes of justice. 7 On the preparations for extraordinary justice i.a.: P. Romijn, Snel, Streng en rechtvaardig. Politiek beleid in zake de bestraffing en reclassering van ‘foute’ Nederlander 1945-1955 (De Haan, 1989), at 20; A.D. Belinfante, In plaats van bijltjesdag. De geschiedenis van de bijzondere rechtspleging na de Tweede Wereldoorlog (Van Gorcum, 1978) at 60-73; and the official Dutch war historian L. de Jong, Het koninkrijk der Nederlanden in de Tweede Wereldoorlog. IV, Londen, tweede helft (Staatsuitgeverij, 1979), at 1212-1238. no clear idea of the numbers involved nor first-hand knowledge of the situation under the occupation. The prevailing notion was that a small, perverse minority had betrayed patriotic Dutch citizens, albeit in three different ways. There were active collaborators: Dutch fascists in important administrative positions, volunteers in the German armed forces and economic profiteers. Then there were the members of the hated Dutch fascist party Nationaal Socialistische Beweging (National Socialist Movement, always known as NSB) or similar organizations, collaborators by definition because of their politics. And finally there were treasonous or unreliable civil servants and government employees. All these people were manifestly ‘on the wrong side’ and there would, so declared Queen Wilhelmina, be no place for them in free Dutch society. 8 These seriously oversimplified assumptions about the actual situation implied both that ‘right’ and ‘wrong’ were easily distinguishable in practice and that everyone who had not openly made the wrong choice must therefore have made the right one. They were translated into a legal framework corresponding to the three groups presumed to have behaved ‘wrongly’. 9 The Decree on Extraordinary Criminal Law of 22 December 1943 10 concerned serious, active collaboration, adding to the relevant provisions of the existing Dutch Criminal Code the offences of ‘collaboration with the enemy’ and ‘betrayal’ (essentially subjecting another person to measures by the enemy) with a maximum of five years imprisonment; if a victim had died as a result, the penalty was life imprisonment or death. In 1947, war crimes were added to allow the trial of German citizens. Another decree regulated procedural matters, including new extraordinary trial courts and an extraordinary supreme court staffed by professional judges. 11 The Decree on Purging the Administration 12 created a disciplinary regime for civil servants and government employees who had ‘demonstrated a treasonable attitude’, or could 8 Speech by Queen Wilhelmina, Free Dutch Radio (Radio Oranje), broadcast from London, 10 May 1941. In later years, she spoke several times again of ‘swift, severe and just retribution’ and of isolating and removing all ‘undesirable elements’. 9 For details of disciplinary and criminal law: W.M.E.Noach, De bijzondere rechtspleging. Straf- en tuchtrechtelijk optreden tegen onvaderlandslievend gedrag uit de bezettingsjaren, (Martinus Nijhoff, 1948); Belinfante, supra note 7; L. de Jong, Het koninkrijk der Nederlanden in de Tweede Wereldoorlog: deel 12 Epiloog, eerste helft, (Martinus Nijhoff 1988); Administrative cleansing is described by Romijn, supra note 7, at 79-162. For an overview in English: C.H. Brants, Dealing with the Holocaust and Collaboration: the Dutch Experience of Criminal Justice and Accountability after World War 2, 33 Crime, Law and Social Change 3 (2000) 211-236. 10 Besluit Buitengewoon Strafrecht 22 December 1943, Staatsblad D61. 11 Besluit Buitengewone Rechtspleging 22 December 1943, Staatsblad D 63; Besluit Bijzondere Gerechtshoven, 22 December 1943, Staatsblad D 62. 12 Zuiveringsbesluit 13 January 1944, Staatsblad E 14. http://www.google.com/url?q=http%3A%2F%2Fwetten.overheid.nl%2FBWBR0002008%2Fgeldigheidsdatum_23-12-2009&amp;sa=D&amp;sntz=1&amp;usg=AFrqEzfJjOI5A_6xFYCqQHAQx_Tm3jxdSA http://www.google.com/url?q=http%3A%2F%2Flexius.nl%2Fbesluit-op-de-bijzondere-gerechtshoven&amp;sa=D&amp;sntz=1&amp;usg=AFrqEzcLTk530iT27d38t6ZLRx5fEb1t2Q http://www.google.com/url?q=http%3A%2F%2Flexius.nl%2Fbesluit-op-de-bijzondere-gerechtshoven&amp;sa=D&amp;sntz=1&amp;usg=AFrqEzcLTk530iT27d38t6ZLRx5fEb1t2Q ‘not be relied upon to faithfully co-operate in rebuilding the country’. 13 Sanctions were suspension (with salary) or dishonourable discharge (with loss of salary and, in some cases, pension rights). This group was dealt with by a ‘Central Organ’, but there were also separate commissions that examined the war record of numerous different professions (journalists, university teachers, artists etc.). Finally, a Decree on Tribunals 14 dealt with all Dutch citizens ‘who, during the course of hostilities or of the occupation of the Kingdom of the Netherlands, have behaved in a way that is abhorrent to every good patriot.’ This could be anything, from assisting the enemy to displaying a ‘national-socialist attitude’. 15 The lay tribunals, under a professional chairman, could impose one of three penalties: ten years internment, the withdrawal of civil rights or confiscation of property. This disciplinary law was to culminate with extraordinary criminal proceedings, making double jeopardy the norm. Indeed, government employees and other professionals could be subject to all three forms of justice. These decrees contained vague, multi-interpretable and overlapping provisions and contravened the Dutch Constitution and existing criminal law principles: retro-active criminalisation, the death penalty (abolished in the 19th century), lay judges (forbidden by the Dutch Constitution), the confiscation of a person’s entire assets and denial of civil rights (the outlawed Napoleonic practice of ‘civil death’); 16 no appeal on the facts, while appeal to the extraordinary supreme court on points of law depended on permission by the trial court. 17 The tribunals judged cases brought by members of the public without a public prosecutor on whom the onus of proof rested. 2. Unforeseen Practicalities and the Solutions Almost immediately after liberation it was obvious that far too many people were caught up in a system not yet ready to operate (too few high-ranking and respected judges were available 18 and some prospective chairmen objected to the law they would apply, especially mandatory sentencing). Between 120,000 and 150,000 people, some probably innocent, many 13 Idem Article 3, para.1 14 Tribunaalbesluit, 17 September 1944, Staatsblad E101. 15 Noach supra, note 9, at 57. 16 While by today’s standards the culmination of trial by tribunal and criminal court and of the sanctions that both could impose, would be inadmissible, at the time Dutch legal scholars were divided on the matter of double jeopardy. 17 Under normal Dutch criminal procedure, there is a right to full re-trial by a higher court and to appeal to the Supreme Court on points of law. 18 With some exceptions, the higher Dutch judiciary had not acquitted itself with particular distinction during the occupation; see D. Venema, Rechters in oorlogstijd (Boom Juridische uitgevers 2007). suspected of very minor offences, had been arrested and detained. 19 There was no habeas corpus and a serious backlog of judicial cases. Severe overcrowding, food shortages, ill treatment and even torture plagued some detention camps. Within months, the Government was forced to reduce the numbers by releasing minor cases, 20 then, when more releases had to be contemplated, by changing the definition of a ‘minor case’. Once the legal process was underway, procedural rules were held to be unjust and unworkable and this too led to delays and then substantial amendments that changed the nature of the envisaged ‘swift, just and severe retribution’. The Government, however, was not only moved by practical considerations. Social and political protest by authoritative figures about conditions in the camps and the harshness of the legal rules were gradually picked up by the media. The churches, particularly the Catholic Church, appealed urgently to Christian compassion, irreconcilable with ‘eliminating people from society’. 21 After the release of 40,000 ‘minor cases’, the churches again called for compassion. Although the intended release of another 60,000 (the definition of ‘minor’ having been extended) led to widespread public protest, 22 by May 1947 more than 100,000 people had been set free. Combined with the introduction of habeas corpus for political detainees, this left about 3,000 by 1 October 1948. The release of ‘political delinquents’ (even if their guilt was not always officially determined), 23 was often conditional on supervision by a new organisation, the STPD (Stichting Toezicht Politieke Delinquenten – Foundation for the Supervision of Political Delinquents). A private initiative with government subsidy and staffed mainly by volunteers, it supervised but also supported convicted and non-convicted ‘political delinquents’ with the aim of helping them return to society. It too was vocal in its support of release policies and amendments to the court and tribunal process. 24 Tribunals were soon allowed to deviate from mandatory sentencing that was withdrawn altogether in 1946. In 1947, more flexible penalties were introduced and double 19 In general it is impossible to give exact figures for the process of extraordinary justice. The first weeks were chaotic and not properly documented. The files were not generally available for research until relatively recently. Publications show that some files are missing, double, or contain more than one case. See e.g. S. Faber and G. Donker, Bijzonder Gewoon. Het Centraal Archief Bijzondere rechtspleging (1944-2000) en de lichte gevallen (3rd edn., Stichting moderne Rechtsgeschiedenis, 2010). 20 Besluit Politieke Delinquenten 26 October 1945, Staatsblad F244. 21 De Haan, supra note 2, at 90 ff. 22 Noach, supra note 9, at 16-17. 23 Belinfante (supra note 7, at 76) thinks it a measure of how well the release policy worked that, of those who later appeared before an extraordinary court, only 1.25% was found to have been wrongfully arrested. The other side of the coin is that many detainees were, therefore, probably innocent. 24 See on the Foundation’s work: J. le Poole, Verslag der werkzaamheden van de Stichting Toezicht Politieke Delinquenten over de jaren 1945 t/m 1947 (s.e., 1948). http://www.archieven.nl/nl/zoeken?mivast=0&mizig=210&miadt=298&miaet=1&micode=870&minr=1786874&miq=561706033&miview=inv2&milang=nl http://www.archieven.nl/nl/zoeken?mivast=0&mizig=210&miadt=298&miaet=1&micode=870&minr=1786874&miq=561706033&miview=inv2&milang=nl http://www.geheugenvannederland.nl/?/nl/items/EVDO02:NIOD05_8240/&st=toezicht%20delinquenten&sc=%28cql.serverChoice%20all%20toezicht%20%20AND%20delinquenten%29&singleitem=true jeopardy abolished, thereby legalising what had already become practice: less serious cases tried by tribunals only, serious criminal offences by extraordinary courts where there was now an automatic right of appeal on points of law i.a. if the death penalty had been imposed. The purging process also underwent substantive changes, most importantly perhaps because the country would come to a standstill if too many were removed from their jobs. At an early stage, more flexible sanctions and differentiation between categories of seriousness were introduced: ‘mistakes’ during the war could result in a caution (public or non-public) or demotion; less serious cases were punishable by honourable discharge with no loss of pension rights, and minor cases by demotion; the original decree remained applicable to serious cases only. In total, after release of the minor cases, the courts and tribunals dealt with approximately 65,000 people, 8% of whom were acquitted, with 16% receiving fines, 60% sentences of more than five years, 9% between five and ten years, and 3% between ten and 15 years; 578 people were sentenced to more than fifteen years, 148 to life and 152 to death of whom 40 were executed. 25 By 1964, all of the convicted Dutch citizens were free. Most government employees who had been dismissed were rehabilitated by the beginning of the 1950’s, successfully campaigning in 1956 for restoration of their pension rights. 3. From Collective to Individual Retribution The decrees on extraordinary justice and purging the administration were intended as a system of collective retribution, but the simplistic notion on which they were based – that within the three different ‘wrong’ groups, all were equally culpable – bore little resemblance to the variations in war-time behaviour. As the legal process went on, it became clear that more scope for individual differentiation was needed. Procedural amendments helped, but the finer shades of distinction are to be found in the sentencing practices through which collective justice evolved into individual justice. At the same time, the idea that everyone should (let alone could) be tried faded into the background, although the underlying reasons differ between the purge and the process of administrative and criminal justice. Not all supported the collective purge of the Dutch administration: some thought a public servant should remain at his post in ‘the interests of the country’, 26 others objected to 25 These figures are provided by P. Romijn and Eric Schumacher, Transitional Justice in the Netherlands after World War II, in: N. Wouters (ed.), Transitional Justice and Memory in Europe (1945-2013) (Intersentia 2014), at 133-171. 26 De Haan, supra note 2, at 89-94. what they saw as discrimination of the ‘little man’ while the big shots got off. 27 There were indeed large discrepancies in the punishment meted out to civil servants and government employees caught up in the purge (about 10% of the total), among them very high-ranking officials such as mayors and chiefs of police; some were dishonourably discharged and prosecuted, others not. 28 Moreover, the idea of a collective purge of the ideologically unsound contradicted the reality of an administration under occupation. All who remained in government employment by definition co-operated with enemy, but seldom as intentional collaborators or traitors: there were active collaborators; there were also heroes who sabotaged the enemy’s work; the great majority simply got on with the job. Dealing with the highest officials who had remained in office until the very end soon overshadowed the purge of minor employees that gradually ground to a halt. Romijn attributes this to the power struggle between the new and old elite, it being imperative for the latter that purging the administration did not become a divisive political issue. 29 But there were also considerations of just retribution, of not blaming the lower ranks for following the example of their superiors and of making sure that individual circumstances were taken into account. The individualisation of sanctions was even more apparent in extraordinary criminal and administrative justice, 30 where sentences gradually became less harsh, most noticeably at the extraordinary courts. The maximum penalty for joining enemy forces, for example, was death, and some death sentences were passed and executed. Over time, courts came to distinguish between the Waffen SS (regarded as most reprehensible) and other branches of the German forces, took into account the youthful age of most volunteers who, after 1947, were no longer prosecuted, and brought the sentence for Waffen-SS’ers down to between eight and 15 years. While it is less easy to discover clear sentencing patterns for the other capital offences, betrayal and collaboration, here too sentences for even very serious crimes became more lenient as the courts discovered that, however immoral a person’s behaviour and horrific the consequences, there was always some case that was worse. Eventually, the notion of collective justice was entirely abandoned as courts sought to ensure that the punishment fitted the individual crime. Although the consequences of many acts of betrayal were the same (the victims died), there were obviously different circumstances, motives and degrees of blame. In 1945, one 27 Romijn, supra note 7, at 20. 28 De Haan, supra note 7, at 88-89; Romijn, supra note 7, at 143 ff. 29 Romijn, supra note 7, at 95-109 30 The following is based on Belinfante, supra note 7, ch. IX-XII. incident and the death of one person could lead to a death sentence. Later, the death penalty was rare. In 1949, for example, a Dutch ‘businessman’ who conned several Jews into paying to be ‘smuggled to England’ then handed them over to the Germans, was sentenced to 15 years in prison. 31 Public officials who had merely done their job did not appear before the extraordinary courts. Only those who had been more than enthusiastic in assisting the occupying forces were prosecuted, with police officers who had hunted down Jews in hiding or betrayed resistance workers receiving harsh sentences until the very end. It was also clear that severe penalties for low-ranking employees or policemen were problematic considering the bad example often given by superiors. 32 However, even when the perpetrators were mayors, individualisation and mitigation in sentencing became the norm over the years, although the courts continued to regard NSB-membership as an aggravating factor. In 1945, for example, the NSB-mayor of Wassenaar was sentenced to life (later commuted to 20 years, although his actions had not had any dire results. Three years later, the mayor of Amsterdam, not a member of the NSB, received three years; his NSB-colleague in The Hague, 12; the mayor of Rotterdam, a considerably more active collaborator than either of the others, got ten years. The great majority of Dutch Jews had been deported under their leadership. Most difficult were the cases of the ‘good’ mayors, who had been appointed before the war and had never sympathized with national-socialism. They too had sometimes delivered Jews into the hands of the Germans. After consideration of the circumstances, they got off sometimes very lightly. 4. A Policy of Pardons In 1950, the process of extraordinary justice gradually came to an end. A 1949 parliamentary inquiry commission examined the role of government under the occupation but decided the part played by high-ranking civil servants who had ‘looked after the country’s affairs’ after the government fled to London, did not really come under its mandate; it did no more than state that ‘some civil servants were insufficiently aware of where to draw the line’. 33 Then, while the extraordinary courts were still sitting, the Government embarked on a policy of pardons. Partly a response to public opinion where vengeful feelings had somewhat subsided (though not towards the Germans), and to pleas for clemency by the churches and 31 Belinfante, supra note 7, at 372. 32 ‘[I]n many branches of the police force, we find the most serious offences … committed by the highest ranking officers…and what is worse, by shifting the burden of their responsibility as superiors onto their subordinates to whom fell the actual dirty work…We also find poignant discrepancies in the sentencing of such cases (Extraordinary Supreme Court, 8 November 1948). 33 De Haan, supra note 2, at 91. authoritative legal scholars, above all the policy of pardons was driven by socio-political and economic considerations. The country was devastated, the population split by memories of the war; rebuilding a stable society and viable economy was impossible without reconciliation and thus reintegration of political delinquents. Enough was enough. In 1947, discrepancies in sentencing that came to light on appeal to the Extraordinary Supreme Court were resolved by commuting harsh sentences imposed immediately after the war. 1948, Queen Wilhelmina’s jubilee year, saw the first of several mass pardons. The first youthful volunteers were pardoned in 1949, soon followed by the older ones. In 1950, pardons were issued for all those with ten years still to serve, later followed by a commission to look into cases with 15 years remaining. Then in 1951, lifers began to be pardoned. In the following years, increasing numbers of prisoners were pardoned and freed, among them 67 who had originally received death sentences. 34 C. Perceptions of Justice and Legacies of Silence Already while extraordinary justice was ongoing, and certainly afterwards, there was a festering pool of dissatisfaction that was to flare up in public debate in the years to come. 35 But the specific groups concerned – ex-resistance fighters, Jewish survivors and collaborators – were different, and so too the reasons for their disillusionment. It was partly the legal process itself that led to perceptions that justice had not been done, but this cannot be separated from its socio-political context. These different perceptions, deriving from very different experiences of the war, were not equally represented in public discourse; some were silenced for many years, only to emerge as the respective groups found a voice and the nature of public debate gradually changed. 1. The Resistance Those directly and professionally involved or interested (government ministers, judges, legal scholars and practitioners, academics), in short the old elite, felt that extraordinary justice had been a success once the practical problems were solved. But a substantial part of public opinion as represented in the now legal war-time underground press, the new political parties 34 Because there had been public unease about executing the death penalty given that it could not be appealed, by March 1946 death sentences were not carried out anyway unless the Crown had considered a pardon. Those remaining were eventually all commuted to life. 35 Romijn and Schumacher, supra note 25, at 151. striving for power and especially ex-members of the resistance saw the policy of releasing so many from detention, the extension of the definition of ‘minor cases’ in 1945-1946, the increasingly lenient sentences and the pardons as unwarranted leniency. ‘…The law must have its course…Those who dispense justice should know that they are subjecting our people to a new crime if they hesitate to punish the guilty…we do not ask for the hangman, but for justice according to honour and conscience.’ 36 It is unknown who wrote this, but it neatly sums up feelings of many resistance members, part of the new elite, who were highly critical of the policies of the old governing parties, including the way extraordinary justice was handled and the (political) compassion that guided its course. Twenty five years later, after the publication of what is still the classic study on extraordinary justice, 37 ex-resistance fighter (and criminologist) Willem Nagel was unable to hide the anger he had felt at the time. Writing under his pen name, J.B. Charles, he exclaimed: ‘Has it taken until 1978 for us to be shocked by the compassion that poisoned the so-called justice of 1945?’ 38 This concept of ‘compassion’ has been explained as the expression of a predominantly catholic moral, exceedingly useful for the powerful catholic party that formed part of the first post-war coalition governments and also provided the prime-minister. A number of authors see extraordinary justice in this framework. 39 Compassion was a way of depoliticizing the issue – an appeal to fundamental Christian values not easily opposed politically – and, with it, the Resistance whose members became the war heroes of yesterday, not the political heroes of today. Resistance in the Netherlands did not really come into its own until halfway through the war. However, those who resisted the Germans from the outset were almost all politically motivated and organized accordingly. The largest group arose from the communist party, while others organized around socialist and/or pacifist leaders. The other significant group came from the Dutch reformed church. Their common ground was a desire for a new order after liberation, though they differed on what should constitute that order. This was a politically destabilizing factor in post-war society and the governing elite were keen to prevent the Resistance as such becoming a political group. Being silenced as a political force, however, is not the same as silence about the role of the Resistance. 36 Anonymous pamphlet, Archives NIOD Doc II 249, no. 0127C-49. 37 Namely Belinfante, supra note 7. 38 J.B. Charles, Van het kleine koude front (7th edn., Amsterdam 1984). 39 Romijn, supra note 7, De Haan, supra note 2. Immediately after the war, there was much public interest in the resistance and several ex-members published widely-read memoirs. 40 These set the tone for a discourse of patriotic heroism, 41 reinforced in 1947 by the award of pensions for members of the former Resistance and their families. Hondius refers to a ‘new social hierarchy’ formed in the reaction after the war: resistance fighters at the top, collaborators at the bottom … a hierarchy [that] was widely accepted and has remained in place and essentially unchanged since 1945’. 42 But while this informed the myth of resistance, one group was excluded: the communist ex- resistance, whom the cold war pushed down the social hierarchy and deprived of the authority their war record conferred. Paradoxically, while the Resistance was depoliticised, discussions about the war were conducted in the distinctly politicised, ideological frame of democracy versus totalitarianism. What was not needed in that context, were personal stories of injustice, precisely what Jewish survivors needed to tell. 43 2. Jewish Survivors The voice of Jewish survivors recently returned from the camps or re-emerging from hiding was barely heard after the war. In so far as they were directly concerned with extraordinary justice, they, or their now dead family members, were simply individual victims. The process had not done justice to the experience of genocide, but this was something they could not articulate. In the prevailing discourse, Jews were no different from anyone else who survived the war, a reflection of a strict government policy of neutrality: no single category of war victims was to be favoured above others. ‘Collective victimisation’, 44 however, hid the fact that a tragedy had befallen the Jews that was of a different order to what had happened to the Dutch as a nation, even during the horrendous final year of starvation, lack of fuel and an increasingly brutal occupation, during which thousands died. This ‘hunger winter’ also fed the population’s perception of collective victimisation: granted, the Jews were in camps but we ate tulip bulbs or starved. 40 J.C.H. Blom, I. Schöffer and A.C. 't Hart, De affaire-Menten, 1945-1976: eindrapport van de Commissie van Onderzoek betreffende het opsporingsbeleid inzake Menten vanaf de bevrijding tot de zomer van 1976 en de invloeden waaraan dat beleid al dan niet heeft blootgestaan (Staatsuitgeverij, 1979) at 191-192. 41 J. Bank, Oorlogsverleden in Nederland (Ambo, 1983) at 8-9. 42 Hondius, supra note 1, at 160/161. 43 Ismee Tames & Jolande Withuis, Stilte na de oorlog?, 9 Historisch Nieuwsblad (2010), 68-75. 44 Romijn and Schumacher, supra note 25, at 149. There was also no distinction in support for victims, which was temporary and scarce, the exception being pensions for ex-resistance members. Jewish survivors felt betrayed – yet again – on returning to the Netherlands, 45 where they met indifference and sometimes hostility at the borders and in the cities where their own community no longer existed, and struggled to recover confiscated or (mis)appropriated property. In some cases, non-Jewish neighbours refused to return goods entrusted to them for safe-keeping, even expressing open displeasure that the rightful owner had returned alive. 46 More than anything, there was lack of understanding: the Jews should stop whining, be grateful for what they had and get on with their life. In the midst of what was at best indifference to the particular nature of their experience, traumatised Jewish survivors were unwilling and afraid to manifest themselves as such. This silence was finally broken after 20 years. More important in the Dutch context than the trial of Adolf Eichmann (although that led to shock and disbelief), was the television series De Bezetting (The Occupation), a prequel to official historian L. de Jong’s magnus opum on the Netherlands during World War II. On May 3 1962, the episode on the persecution, deportation and murder of the Dutch Jews stunned the audience and the media. De Jong encouraged another Jewish historian, J. Presser, to write a specific history of the Jews during the occupation. 47 Ondergang (Downfall) appeared in 1965, a harrowing tale of exclusion and destruction. Then, at the beginning of the 1970’s, reports began to appear on ‘concentration camp syndrome’ and in 1972, a television documentary about a psychiatrist and his Jewish patients (Begrijp je nu waarom ik huil? – Now do you understand why I weep?), drove home the reality of living with memories of the Holocaust. Jewish survivors now had a voice, raised that same year in public protest against granting pardons to the last remaining – German – prisoners serving life sentences (the so- called Three of Breda). Many academics and clergy supported release – and for the same reason: life imprisonment is inhumane. But anti-release groups were vociferous and shared a different sentiment: to release these Germans is to inflict yet more suffering on their victims. Such was the public outcry that, after an emotional parliamentary debate, the pardons were refused. A year later, when Jewish victim-survivors were specifically compensated (Wet Uitkering Vervolgingsslachtoffers – Law on Support of Victims of Persecution), this was 45 D. Hondius, The persistence of uneasiness: Dutch Jews and non-Jews since 1945 (unpublished manuscript held by National Institute for Holocaust Studies - NIOD, Amsterdam, 1998); Hondius, supra note 1. See also M. Citroen, U wordt door niemand verwacht. Nederlandse Joden na kampen en onderduik (Het Spectrum, 1999). 46 The title of Citroen’s book (note 45 supra) in English is: Nobody is expecting you. Dutch Jews emerging from the camps and hiding. 47 J. Presser, Ondergang. De vervolging en verdelging van het Nederlandse Jodendom, 1940-1945 (Nijhoff, 1965). justified as an act of special solidarity on the part of the Dutch population. 48 The Germans (now two, one died in prison) were not released until 1989; both died shortly afterwards in Germany. 3. Collaborators Despite the releases and pardons, the efforts of the STPD that latterly had functioned as a reintegration service for political delinquents, and the political stress on rebuilding the country, the reconciliatory ideas of political and social elites were not shared by the population in general. 49 This was partly due to dissatisfaction with extraordinary justice, but there was also anger at the support and housing collaborators received while victims struggled to make ends meet amid a general housing shortage. The STPD noted that many ex- political delinquents found it impossible to find jobs, were shunned by neighbours and that their children were discriminated against by friends and even teachers. 50 In later years, the group was no longer categorically rejected, but their position was difficult enough for them to shroud their past in protective silence. At the same time, many were also angry about the treatment meted out in the first months after liberation and their children grew up in an atmosphere of silent bitterness. Early attempts to break the silence were met with hostility and disbelief. In 1949, a Dutch fascist published a report on the detention camps, detailing the ill-treatment, starvation rations, torture and even murder of detainees. 51 Although some were shocked, the more so since the facts were corroborated by less suspect sources, 52 the Government took steps to improve the situation and the fuss died away. Only recently has there been serious and detailed research into what happened in this ‘forgotten past’ (the subtitle of one such publication). 53 As to the fact of collaboration, in 1967 the first attempt to throw some light on who the collaborators were and what their motives, 54 met with a storm of criticism especially 48 At the end of the century, when the details emerged of how the Jews had been looted by official Dutch institutions, government, stock-market, banks and insurance companies donated a combined 764 million guilders (Romijn and Schumacher, supra note 25, at 164). 49 Romijn and Schumacher, supra note 25, at 159. 50 Le Poole, supra note 24, at 11-12. 51 H.W. van der Vaart Smit, Kamptoestanden 1944/`45-1948 – rapport (Keizerskroon, 1949). 52 A. van Liempt, Na de bevrijding. De loodzware jaren 1945-1950 (Uitgeverij Balans, 2014), at 47 53 G. Abuys, and Bas Kortholt, Interneringskamp Westerbork: verhalen van een vergeten verleden (1945-1948) (Just Publishers, 2010); see also R. Hoving, Het foute kamp. De geschiedenis van het Amersfoortse interneringskamp Laan 1914 (1945-1946) (Donker, 2011). 54 Armando en H. Sleutelaar, De SS’ers. Nederlandse vrijwilligers in de Tweede Wereldoorlog, (De Bezige Bij,1967). from papers that were a continuation of the underground press. Even in the 1980’s studies of collaborators received little general attention. 55 Collaborators had always been reluctant to seek a public platform. In 1947, a number of leading ex-NSB members had apologized publicly, but this admission of guilt was not taken seriously and there were no more large scale attempts. 56 According to Tames, while reintegration was certainly not easy and there was no real reconciliation, things were not as bad in practice as the right-wrong discourse would suggest; collaborators were ‘allowed’ back, but only in so far as they were prepared to admit their fundamental guilt, making them ever dependent on the conditional good will of others. 57 Their children formed a particularly difficult and vulnerable group, who, for obvious reasons, were both traumatized by the silence and/or the knowledge of who their parents were, and yet could not speak out of loyalty or fear, or both. During the 1980’s, they were grudgingly but not widely recognised as one of the groups for whom the war had brought specific traumas. 58 It is, however, only in the past ten years that their individual stories have started to be told. 59 D. The bystander role of the Dutch population If the three specifically dissatisfied groups were eventually able to articulate their feelings, until the end of the millennium neither they nor anyone else managed to put the one subject enduringly smothered by the myth of resistance on the agenda of public debate: the bystander role of the great majority of Dutch citizens. Writing on protests against ‘lenient’ justice, the director of the STDP noted: ‘So many compatriots bear some moral guilt, because … they refused to help those in need. The more they proclaim they were “anti”, though in reality “neutral”, during the occupation, the louder they are after liberation!’ 60 Years later and after the Three of Breda affair, a legal scholar noted: ‘…the settling of accounts for what happened to the Jews … should include the culpable negligence of the Dutch. If solidarity with victims 55 E.g. J. Hofman, De collaborateur. Een sociaal-psychologisch onderzoek naar misdadig gedrag in dienst van de Duitse bezetter (Boom, 1981), and H. Stouten, Naar verkeerd spoor. Achtergronden van Nederlandse politieke delinquenten, 1940-1945 (Stubeg 1986); the latter, a prison director had waited 40 years to publish his experiences because he felt his ideas did not fit the prevailing consensus on the war. 56 Romijn & Schumacher, supra note 25, at 167/168. 57 I. Tames, Doorn in het vlees. Foute Nederlanders in de jaren vijftig en zestig (Balans, 2013). 58 H.J. Scheffel-Baars, Kind van foute ouders (Werkgroep Herkenning, 1984). 59 See e.g B. Kromhout, Fout geboren: het verhaal van kinderen van foute ouders (Contact, 2004); C. van der Heijden, Kinderen van foute ouders: hun verhaal, (Uitgeverij Atlas Contact, 2014). 60 Le Poole, supra note 24, at 23. http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=6/REL?PPN=069183449 http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=6/CLK?IKT=4&TRM=Kind http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=6/CLK?IKT=4&TRM=foute http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=6/CLK?IKT=4&TRM=ouders http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=2/CLK?IKT=4&TRM=Fout http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=2/CLK?IKT=4&TRM=geboren http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=2/CLK?IKT=4&TRM=verhaal http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=2/CLK?IKT=4&TRM=kinderen http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=2/CLK?IKT=4&TRM=foute http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=2/CLK?IKT=4&TRM=ouders http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=7/CLK?IKT=4&TRM=Kinderen http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=7/CLK?IKT=4&TRM=foute http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=7/CLK?IKT=4&TRM=ouders http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=7/CLK?IKT=4&TRM=hun http://opac-gonext.oclc.org:8180/DB=8/SET=5/TTL=7/CLK?IKT=4&TRM=verhaal is enforced through punishing the Three of Breda, extraordinary justice becomes an alibi for all those only too keen to pass their own failings and blame to the Germans.’ 61 Then, as before, there was little room for such soul searching. Right versus wrong defined the war years from the beginning, continually reinforced in the writings of historians such as de Jong and Presser, 62 and by sporadic revelations that public figures had been ‘wrong’ during the war. After one such incident, the then Dutch Prime Minister Lubbers wrote in a private letter: ‘The image this society…has of the war is totally out of focus. “You were right or you were wrong”. The reality of grey is completely ignored.’ 63 That grey reality is now the subject of much new research, following a call by Blom to move forward from the right-wrong dichotomy. Why the persecution of the Jews was so catastrophic in the Netherlands has become a pressing question for historians: the Dutch paradox, for were not the Jews always received with great tolerance? 64 Yet, of all Western European countries, the Netherlands lost the greatest percentage of its Jewish population (75%, as opposed to 25% in France, for example, and 40% in Belgium). There have many explanations as to why the Dutch Jews fared so badly. Obviously, the Netherlands has no wild countryside (as in France) and bordered no neutral country to which to escape (as did Denmark). More importantly, deportations in the Netherlands were uninterrupted and less violent than elsewhere, while the Jewish Council continued to cooperate till the end. The Jews of the Netherlands were highly assimilated and ‘clung to the legal options which then proved to be part of the deportation system’. 65 This is with the benefit of hindsight, and so too are explanations as to why the majority and the Dutch administration were so compliant. According to Romijn, protecting the population at large, not its most vulnerable group, was the authorities’ priority. In the mixture of force and deceit that the Germans employed, tolerating discrimination of the Jews seemed wiser than protest. But this was a slippery slope and these ‘politics of lesser evil’ became bankrupt by 1943 when the Germans turned their attention to the Dutch population itself, and evading forced labour in Germany became the acceptable reaction (although many did go). 61 C.H.F. Rüter, Enkele aspecten van de strafrechtelijke reactie op oorlogsmisdrijven en misdrijven tegen de menselijkheid (University Press Amsterdam, 1973), at 147. 62 Blom, supra note 4; Van der Heijden, supra note 3, at 410. 63 Quoted in R. Bouwman, De val van een bergredenaar (Boom, 2000), at 319. 64 Blom, supra note 4, at 75; this book combines i.a. two inaugural speeches. It is in the first (at 9-30), given in 1983, that he makes his appeal for recognising shades of grey. 65 P. Griffioen and R. Zeller, Comparing the persecution of the Jews in the Netherlands, France and Belgium, 1940-1945: similarities, differences, causes, in: The Persecution of the Jews in the Netherlands, 1940-1945. New Perspectives (Vossiuspers UvA, 2012), at 77-78. This attitude on the part of the (highest) authorities partly explains why, when public servants were required to sign the ‘declaration of Aryan descent’, only seven non-Jews in the whole country refused, or why the gradual exclusion of Jews from public life went ahead so smoothly. 66 When the razzias started in February 1941, there was brief and violent public protest in Amsterdam led by communist dockers (the ‘February Strike’); it was put down harshly, but made the Germans more circumspect in rounding up Jews for deportation. Van der Heijden points out that there was comparatively little resistance until 1943 and that armed resistance was also less than in other countries. He puts the compliance of the population down to an inclination to compromise, obedience to authority and trust in the administration. 67 But hindsight now begs the question of what people knew then. Private diaries from the period show that many were distressed by what was happening to the Jews (if also mildly anti-Semitic) but that they did not understand its significance, despite the stories about destruction and extermination in ‘the East’ as broadcast via the BBC and underground press. 68 While Van der Heijden also doubts how much people knew, the main gist of his study is that the ‘grey, middle-of-the-road position of the bystander’ made it was easier to avoid trouble and adapt to an increasingly difficult reality. Historians are coming to see this as a continuation of pre-war social and political relations: the capacity of both administration and population to adapt derives from a political culture of accommodation that made contact and cooperation with the Germans possible without its necessarily being (perceived as) collaboration. 69 Part of the Dutch paradox, this also goes some way to explaining the myth of resistance and the great silence that shrouded first the fate of the Jews and later, when the facts were known, the role the Dutch themselves had played in it. Withuis stresses that, because the experience and significance of the war and post-war situation differed for different groups, it was impossible to find a collective narrative for the future. The failure to protect the Jews is hardly a candidate, especially not in a country that regards itself as extremely tolerant. And so the narrative evolved towards oppression and heroic resistance. The more this is emphasised, however, the more the decidedly unheroic attitude towards the deportations must be denied, notions of ‘right’ and ‘wrong’ dominate the debate and, where 66 P. Romijn, The ‘Lesser Evil’ – the case of the Dutch local authorities and the Holocaust, in: The Persecution of the Jews in the Netherlands, 1940-1945. New Perspectives (Vossiuspers UvA, 2012) 13-28 at 17-19. 67 Van der Heijden, supra note 3, at 287. 68 B. van der Boom, ‘Wij weten niets van hun lot’. Gewone Nederlanders en de Holocaust (Boom, 2012). (The title, a quote from a diary, is worth translating: ‘We know nothing of their fate’). 69 Blom, supra note 4). silence reigns in the absence of a narrative that all can share, post-war traumas are medicalised rather than treated as social problems. 70 The new historiography has created a narrative something akin to collective guilt for what happened to the Jews, both during and after the war; there is more understanding of the role of so-called collaborators 71 and certainly of the difficulties their children faced (although to have been the child of ‘wrong’ parents is a stigma most would prefer to avoid, even today). Interestingly, as this new truth, ‘the guilty Dutch’, took hold, studies of the resistance celebrating its heroes began to appear as if to ward off the risk that their memory would succumb to the weight of collective responsibility. 72 E. Conclusion With the exception of what happened in the detention camps, the unofficial reaction to collaborators was fairly mild in the Netherlands, certainly in comparison with, say, France. In that, extraordinary justice was certainly successful. But it was also inevitably flawed, procedurally, but perhaps more importantly, as a social process. The courts struggled with the realization that the stark categories of right and wrong had only some link with reality and that collective justice was therefore no justice at all, and did their best to provide fair trial and punishment in the individual circumstances. That this was viewed as too lenient was exacerbated by the release and pardon policies. Yet, leniency and ‘compassion’ cannot simply be dismissed as part of the political struggle of the time. A measure of due process, establishing individual guilt, proportional sentencing, some degree of equality through mitigation of the harsh sentences of the early years, releasing minor cases and attempting to prevent the perpetual exclusion from society of those found wanting, were not merely pragmatic-political issues but justifiable concerns of judges, legal scholars and government wrestling with the question: what is just retribution in such extraordinary circumstances? Knowing what we know now, it seems extraordinary indeed that the whole process was premised on the ideological-political distinction of right and wrong, so that the offences specifically designed to accommodate the circumstances of the war reflect the notion that all 70 Withuis, supra note 1, at 109. 71 The term ‘wartime mayor’ became a Dutch expression for a Catch 22 situation: by remaining at his post, he gets his hands dirty; by leaving, he abandons his people. 72 See e.g. J. Cohen and H. Piersma (eds.), Moedige mensen: helden in oorlogstijd (Boom, 2014); see also the website of NIOD, on which, since 2007, staff members could name their ‘hero of the month’. More recently the site gives access to blogs about heroism and the ‘production’ of heroes (www.niod.knaw.nl/heldvandemaand). politically unsound individuals – and they alone – were perpetrators. The process therefore aimed at denying the politically unsound a place in society; the sanctions – life sentences, the death penalty, the ‘civil death’ of total confiscation of assets and denial of civil rights, lustration – were all intended to achieve just that. But in the absence of any connection to wartime realities, this concept could not, by definition, make good on its promises; neither could it do justice to the realities of the crimes and criminals of the occupation. Thus it was preconditioned to leave a legacy of divisiveness. Extraordinary justice has been criticised for this failure to promote a society conducive to an inclusive debate that could lead to reconciliation. 73 Given that it was founded on notions of exclusion that is hardly surprising. To expect the legal process to lead to reconciliation in such post-conflict situations, probably always asks too much of the criminal law, for it would be to ignore that every legal process is a function of the social and political context in which it operates 74 and, moreover, to conflate law and its application with justice. A court’s verdict is definite and authoritative; closure, not continued debate about what it establishes as legal truth, is its purpose. 75 Justice, like history with which it is closely intertwined, is an open-ended quest for historical truth and understanding. 76 In the context of conflict and transition, justice is a permanent struggle in different theatres of memory, confronting different truths of very complex, traumatic social and political events. It is a collective process and can only be achieved if all can recognise a collective version of the past, or at least the validity of different, contested memories. If the legal process of extraordinary justice failed, it is because it could not produce even the beginnings of a collective version of the past. That it did produce a divisive right- wrong dichotomy should not surprise: establishing ‘wrong’ as opposed to right is what criminal trials are about. But there was another inherent mechanism at work that is specific to the underlying ideology of Dutch post-war justice. The truth about the destruction of the Jewish people that emerged from the trials was a patchwork of collaboration and betrayal by individual perpetrators. To betray a Jew was a politically unpatriotic act that usually led to the death of the victim so that the maximum penalty was death (and indeed, death sentences were 73 Romijn, supa, note 7, at 20. 74 Which is, perhaps, a persuasive reason for not embarking on criminal trials immediately after the end of hostilities, and certainly not while they are still ongoing. 75 C.H, Brants and K. Klep, Transitional Justice, History Telling, Collective Memory and the Victim-Witness, 7 International Journal for Conflict and Violence (2013) 36-49, at 46. 76 J.C.H. Blom, Historische en strafrechtelijke ordening van de chaos, in: M. Spiering et al. (eds), De weerspannigheid van de feiten. Opstellen over geschiedenis, politiek, recht en literatuur aangeboden aan W.H. Robool (Verloren, 2000) 23-32, at 24-25. imposed and carried out), but it was no more nor less than any other act of betrayal that had cost lives. Parallel to the prevailing political and social discourse, victimhood was, literally, ‘neutralised’, so that the Holocaust as a phenomenon and the particular collective victimhood of the Jews (as opposed to the collective victimhood of the Dutch population as a whole) were not, and could not be, addressed as specific issues. Similarly, the identification of perpetrators as unpatriotic and politically unsound individuals buried the difficult moral question of the co-operation of almost the whole administration and the passive attitude of practically the whole population. That releases, pardons and reintegration schemes failed to bring reconciliation any closer despite the rhetoric of rebuilding the nation, is also logical. They were top-down policies that left the past behind and closed off divisions, while reconciliation is an ongoing social dialogue about precisely what it is that divides. That the path of justice in the Netherlands proved so rough is not simply a result of how its legal component operated. Criminal trials are but are small part of the process of justice itself and few now remember the contribution of extraordinary criminal justice at all. That criminal courts and tribunals sentenced tens of thousands in a series of trials lasting more than 6 years – no mean feat – is specialized, not general knowledge. Its contribution to a legacy of dichotomous public discourse, however, has proved lasting. The prevailing image of the reckoning, seen on television year after year around liberation day, is of men in old- fashioned raincoats and hats, hands in the air and a placard reading ‘traitor’ round their necks, manhandled through the streets by a couple of armed resistance men and a jeering mob; or of girls – moffenmeiden 77 – having their head roughly shaved amid the sunny festival-like atmosphere of newly liberated towns. It is the enduring imagery of right and wrong. Likewise, a lecture-series at the Resistance Museum in Amsterdam marking the 70 th anniversary of the end of the war bears the title ‘Heroes and Villains’. No Dutch person needs to be told what that means in the context of the war. 77 Saving the alliteration, best translated as ‘Boche-bitches’. 
work_hg3fd6adrzejtmedw4m5dhndxm	----	269 EDU. INQ. Education Inquiry Vol. 1, No. 4, December 2010, pp.269–287 Social justice in education revisited1 Jan Nieuwenhuis* Abstract Social justice is a primary concern of politicians and human rights practitioners, but has lost much of its currency as it has been elevated through philosophical debates to the level of an idealised or “imagined social order” of modern state formations. This article is based on a conceptual analysis of social justice and the trajectory of philosophical discourse. It is argued that much of the social justice discourse ignores the specificity of the geo-historical and social contexts of developing coun- tries and it is premised that social justice in education should be based on a more holistic approach that takes these situational factors into account. Based on the conceptual analysis forwarded, it is postulated that social justice is not an external condition or system. If it were an external condi- tion or system, we could simply have learned social justice as we would have learned any other content-based subject. But social justice is an ideal – a vision that must become a way of life that permeates all aspects of being human. For this reason, it cannot be legislated or achieved through international conventions or declarations – albeit important instruments to promote social justice – social justice must come home in the hearts and minds of people and it must be lived. It requires that every citizen take responsibility to protect, advance and promote the values, principles and ideals of social justice, although for the marginalised and oppressed this is not enough. They need access to resources and opportunities for developing and exercising their capacities or capabilities for living a decent human life. Keywords: social justice, education, education policy, equality, conceptual analysis Introduction Maslow (1958: 15) observed that “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Looking at post-apartheid South Africa it seems that the hammer political decision-makers have found is policy. Democratic South Africa has developed a policy obsession whereby decision-makers want to cure all social ills with policies. The result is that we hammer and beat so- cial problems into a myriad of fragmented pieces and then develop a policy for each small segment. This is even more apparent within the field of education. There are four consequences of this. First, it kindles the flame of managerialism in government structures and spurs the forces of centralisation and control. Secondly, it results in organisations bullet-proofing themselves, thus creating a smoke-and-mirror environ- ment where organisations reflect the things they want government and the world to see, while hiding deeper lying concerns. Thirdly, by doing this, organisations achieve * Department of Education Management and Policy Studies, Faculty of Education, University of Pretoria E-mail: jan.nieuwenhuis@up.ac.za ©Authors. ISSN 2000-4508, pp.269–287 270 Jan Nieuwenhuis procedural or administrative compliance with the policy regime without achieving a much deeper level of substantive compliance (Nieuwenhuis, 2008). Finally, as a consequence of the fragmentation of social challenges and social justice concerns policymakers develop a kind of tunnel vision on social justice whereby they tend to focus on one specific social issue while losing sight of the bigger picture. Let me il- lustrate the consequences with two examples. In 2008, the world was shocked by an incident at the University of the Free State when a group of white students made a video in which a group of black cleaners from one of the hostels were humiliated and subjected to gross human injustice and degradation (Mail & Guardian, 2008). The students tried to justify their actions as a hoax, but it did reveal a much deeper attitude of racism and disrespect for the hu- man dignity and rights of fellow human beings. The university condemned the video outright and immediately claimed that the students’ actions were against university policy and that it was directly opposed to what the management of the former white university had tried to achieve with its transformational policies. A similar trend may be observed when looking at constitutional developments in Eastern European countries after the implosion of communism (1989-1991). Many of these Eastern European countries have reformed their constitutions in such a way as to bring human rights principles from the sphere of morals to the sphere of positive law (Gynther, 2009). For politicians and laymen of diverse ideological backgrounds, it is tempting to make use of rights-talk that, in a seemingly apolitical form, promises emancipation, equality and a better world to all intents and pur- poses. At grassroots level these promises are often experienced as empty and devoid of substance. In the end, much of what emerges from the fragmented discourse is what Mary Pichen has termed “grandiloquent incantation”: It obscures debate and provides no route for governments being held accountable for their actual practices (Pichen, 2001: 97). Two important observations must be made at this point: Gynther, (2009) reminds us of the distinction between formal equality and substantive equality. Writers on the topic agree that mere formal equality is not enough as equal application of a rule or law to all can have unequal results (Nieuwenhuis, 2005). The alternative, the substantive equality approach, can be divided into two distinct models: the difference model and the disadvantage model. The difference model has lost most of its support because of its normative indeterminacy. The disadvantage model defines equality in terms of disadvantage. The principle on which this model is based holds that “…if a person is a member of a constantly disadvantaged group and can show that a distinction based on the personal characteristics of the individual or the group and not imposed on others perpetuates or worsens that disadvantage, the distinction is discriminatory whether intentional or not” (Gynther, 2009: 2). Secondly, although human rights are claimed to be universal, what is actually at issue is a product of the Western liberal tradition, and even there merely one among many 271 Social justice in education revisited emancipatory vocabularies. As Kennedy (2004: 19) puts it: “Human rights encourage people to seek emancipation in the vocabularies of reason rather than faith, in public rather than private life, in law rather than politics, in politics rather than economics.” Against this background I embark on a conceptual analysis to revisit social jus- tice in education. In doing this I undertake to look at some of the formulations and conceptualisations of social justice and indicate why these formulations are deficient in a developing country context. Secondly, in using the conceptual analysis I argue that some of the commonly held assumptions about social justice are lacking in com- prehensiveness and that, as long as these are taken as a point of departure, we may never be able to achieve social justice in education in a developing country context. Research approach The research design utilised in this study is non-empirical in the classical sense of the word (cf. Mouton, 2001; McMillan and Schumacher, 1997), but rather qualitative and analytical (McMillan and Schumacher, 1997: 32). It is non-empirical as it relies on existing or secondary data of a textual nature and it is qualitative since its meth- odology is that of conceptual analyses. It is analytical because it relies on a reflexive analysis of various kinds of textual and other data. The research is also informed by the view of Neuman (1994: 384), namely that: By looking at historical events or diverse cultural contexts, a researcher can generate new concepts and broaden his or her perspectives. Concepts are less likely to be restricted to a historical time or to a single culture; they can be grounded in the experience of people living in specific cultural and historical contexts. It should also be noted that the nature and structure of concepts have been the focus of various strands of thought, most notably of analytic philosophy. Analysing concepts and statements represents the hub of activity in analytic philosophy and diverse views on analysis are generated within this philosophical tradition (see Beany, 1998). Simi- larly, diverse views exist about the nature of concepts which is sometimes described as “mental formulations of experience” (Chinn and Kramer, 1999: 78) or as “words describing mental images of phenomena” (Fawcett, 1999: 2). Rodgers (2000: 7-31) provides a useful overview of the philosophical debates about the nature of concepts and concludes that there is only a tentative answer to questions about the nature of concepts, although there is a consensus: … tha concepts are cognitive in nature and that they are comprised of attributes abstracted from reality, expressed in some form and utilized for some common purpose. Consequently, concepts are more than words or mental images alone. In addition, an emphasis on use alone is not sufficient to capture the complex nature of concepts (ibid: 30). Morse et al. (1997: 76) capture the purpose of concept analysis that forms the basis of this study, as follows: 272 Jan Nieuwenhuis (a) to identify gaps in …knowledge; (b) to determine the need to refine or clarify a concept … (c) to evaluate the adequacy of competing concepts in their relations to phenomena; (d) to examine the congruence between the definition of the concept and the way is has been opera- tionalized; or (e) to ascertain the fit between the definition of the concept and its …application. The above attempt at defining the nature of concepts is unavoidably tentative since considerable diversity exists around the matter. This diversity has research meth- odological implications that hinge on the nature of the problem to be researched; the philosophical orientation towards the nature of concepts; and the history of the concept (ibid: 28-29). In this article the concept of social justice is considered within the context of social, economic, political and cultural arrangements that have shaped and continue to shape its meanings within a developing country context. Formulations of social justice Formulations of the concept of social justice have a long history that includes the social contract theories of Locke, Rosseau, Kant, Hobbes and others. It is not my intention to offer an overview of these theories here, but to take the Rawlsian notion of “distributive justice” as my point of departure. Rawls (as quoted by Keet, 2006) argues that the “conception of social justice” is to be regarded as providing “...in the first instance a standard whereby the distributive aspects of the basic structure of society are to be assessed.” This standard should form the basis for “assigning rights and duties and defining the appropriate division of social advantages” (ibid: 234). For Rawls (1971) social justice provides a moral frame for modern democracy to come to full expression. It governs the conduct of people in relation to each other. Rawls (1958) further argues that not only does it bring out the idea that justice is a primitive moral notion in that it arises once the concept of morality is imposed on mutually self-interested agents similarly circumstanced, but it emphasises that, fundamental to justice, is the concept of fairness which relates to right dealing between persons who are co-operating with or competing against one another. The question of fairness arises when free persons, who have no authority over one another, are engaging in a joint activity and amongst themselves settling or acknowledging the rules which define it and which determine the respective shares in its benefits and burdens. Central to Rawls’ argument is the idea that justice is concerned with establishing the priority of that which is right over that which is good. While goodness can be determined in different kinds of ways, the principles of what is right and just place limitations on the individual’s ability to privilege his or her own best interests. He argues that a well-ordered society requires individuals with highly developed moral sensibilities. One may think of a public conception of social justice as constituting the fundamental charter of a well-ordered human association (Rawls, 1971:5). Rawls (1958) offers two principles of social justice: the principle of Equal Liberty claiming that each person is to be granted the greatest degree of liberty consistent with similar liberty for everyone, and, secondly, the Difference Principle, stating that 273 Social justice in education revisited practices that produce inequalities among individuals are allowable only if they work out to everyone’s advantage and the positions that come with greater reward are open to all. In essence then, Rawls puts forward the case for distributive justice. The notion of “distributive justice” is also supported by Robert Nozick (1996: 187), but Nozick offers an alternative in his entitlement conception of justice. For Nozick (1996), any distributive state arrived at from a just initial state by means of just transfers will itself be just. This has the result that one person might be justified in living in luxury while others around him are in dire poverty or even starving. He argues for a minimalist state intervention and for the “free operation of the market system” which must provide for the optimisation of opportunities for everyone. In searching for a theory of social justice in education, Brighouse (2002) argues that a theory on social justice in education is needed that has to inform us what rights people have, which efforts merit strong state protection, how rights should be distrib- uted and principles to manage trade-offs. He asserts that egalitarian liberalism is a normative theory of what ought to be – it is concerned with what principles should guide the design and reform of society. According to Brighouse (2002), egalitarian liberalism is rooted in the conviction that all individuals need a certain minimum of liberties (see Rawls) and that the state must make them accessible to all (see No- zick). Brighouse (2002) proposes two principles that should guide social justice in education: fair equality of opportunity and equality of condition. Equal opportunity concentrates on treating all people equally and providing people with equal rights. Treating everyone the same does not necessarily mean fairness of treatment. Equal- ity of opportunity is restricted by the family background and circumstances that put children at a disadvantage. The provision of equality of opportunity must be combined with social justice principles to provide substantive equality to marginalised groups (see Nieuwenhuis, 2005). Social justice provides equitable outcomes to marginalised groups by recognising past disadvantage and existence of structural barriers embed- ded in the social, economic and political system that perpetuate systemic discrimina- tion. Social justice recognises that there are situations where the application of the same rules to unequal groups can generate unequal results. Social justice provides a framework to assess the impact of policies and practices. Following the line of reasoning put forward by Rawls, Brighouse (2002) asserts that to achieve social justice in education, two principles are needed: personal autonomy and educational equality. Principle of autonomy states that each child should have the opportunity to become an autonomous person. He should be able to step back and reflect on the self and educators have the duty to facilitate the process where people can become autonomous. Educational equality is based on the idea that the state must guarantee a set of liberties implying that each child shall have right to equally good education. Equality then means more resources to those with less (e.g. the blind) to ensure the same quality. The quality principle therefore proposes that those with similar levels of ability and willing to exert the similar level of effort should faced 274 Jan Nieuwenhuis similar prospects regardless of background and, secondly, those with lower levels of ability should receive additional resources than those with more abilities. The liberal stance taken by authors like Rawls, Nozick and Brighouse on social justice has been critiqued from various sides. Pitt (1998), for example, argues that social justice in education in “new times” is aligned to an ideology of liberal democracy resulting in the emergence of a hyper individualism. This has resulted in the language of economics dominating the social justice and educational debate (see Michael Ap- ple, 1995). In such a situation the social whole, social identity and social cohesion are marginalised. This produces a curriculum which focuses on the education of the individual for economic imperatives. For Pitt (1998) social justice policies act as a political lever to legitimate economic restructuring – they are policies designed to carry disparate groups forward and together, on a common wave of economic reform. Social justice policies are therefore paraded as being “good” for all of society and, in this sense, they are used to “sell” economic reform. Against the backdrop of economic rationalism and liberal democratic ideals, there emerges a language geared to the production of an economically viable self-image, identity, esteem and confidence. As a result, the sense of identity as “social” disappears from view. It erodes the individual’s responsibility towards the group. MacIntyre (1992) also rebukes the liberal notions of justice of Rawls and Nozick, claiming that it is premised on an impossible consensus on a range of principles of moral origin and that the Aristotelian and Lockean notion of “justice as a virtue”, which supports the notions of Rawls and Nozick, must be abandoned (MacIntyre, 1992: 199). MacIntyre (ibid: 200-202) further admonishes the centrality of the values of the market place which have displaced the tradition of virtues and insists on the impossibility of genuine moral consensus. This, in turn, makes the social justice no- tions of Rawls and Nozick logically indefensible. Taylor (1990) also takes issue with Rawls’ ideas by showing how much a traditional Rawlsian position frees the citizen from the responsibility to act. The position taken by Taylor is that citizenship requires that the individual commits him or herself to a moral position. Practical reasoning or a deontological approach (i.e. the moral imperative to act in terms of what is morally right) is central to the active citizen. Gewirtz and Cribb (2002) also reject the liberal view of social justice. They argue for the plurality of the notion of social justice which extends beyond “distributive justice”. Such a plural notion includes “distributive justice”, “cultural justice” and “as- sociational justice” and these notions exhibit varied meanings on a conceptual plane. Griffiths (2003: 7) similarly talks of the plural “theories of social justice” in education and views “social justice” as “dynamic, as a verb” with the emphasis on “uncertainty, fallibility and risky judgements” in order for us to be all humanly different (ibid: 142). A different position taken is that of Giddens. Giddens (1994) approaches social justice from a radical politics perspective and suggests a framework which draws on philo- sophic conservatism. It is a framework which connects autonomy with personal and 275 Social justice in education revisited collective responsibility. Giddens (1994: 10) labels such a philosophical framework as “a philosophy of protection, conservation and solidarity”. It is a framework which also preserves some of the core values which have been associated with socialism (Gid- dens 1994). There are six key points in the framework proposed by Giddens (1994): • repairing damaged solidarities by reconciling autonomy and interdependence; • recognising the importance of the discussion of ethics, i.e. “life politics”; • allowing individuals and groups to make things happen, a “generative politics”; • creating a democracy where issues are debated openly by the public; • developing a welfare state which is empowering rather than merely dispens- ing; and • confronting the role violence plays at all levels of human affairs. The intention of Giddens (1991) is to build on the gains resulting from the emergence of human dignity, such as human rights, while at the same time curbing the excesses of individual agency suggested by Rawls. A related line of thinking is found in the work of Nussbaum and Sen which offer a conceptually rich notion of “capabilities” as a normative framework for promoting human well-being and social justice in de- velopment debates (also see Unterhalter, 2003, Robeyns, 2006). Martha Nussbaum (2000) and Amartya Sen (1999) approach social justice from a different angle by proposing a universal set of capabilities that, together, mark what we as human should be able to be and do in order to meet at least the threshold for living in a fully human way. The capability approach developed by Sen and Nussbaum through dialogue and disagreement for over nearly 20 years (Sen, 1981, 1992, 1999; Nussbaum and Sen, 1993; Nussbaum and Glover, 1995; Nussbaum, 2000) proposes that each of the capabilities is crucial and each is qualitatively different from the rest, yet they are also related to each other, in a variety of complex ways. Sen (1999) argues that capabilities – i.e. well being achievement, well being freedom, agency achievement and agency freedom – should be taken as the way to assess any policy or practice. According to Sen, in evaluating social welfare, including education, capabili- ties should be equalised, although other aspects of social identities will necessarily be different. Nussbaum (2000) has linked the notion of capabilities not only to an evaluative process with regard to thinking of justice in a range of different settings, but also to a normative exploration of humanness. Nussbaum (2000) proposes a list of ten central human capabilities, which she regards as the core entitlements for human flourishing and living life with dignity. Nussbaum (2000) makes the important point that governments cannot be expected to deliver all the capabilities, nonetheless “in the political arena” certain human capabilities exert “a moral claim that they should be developed” (ibid: 83). Where resources are sufficient, failure by government to develop central capabilities becomes a social justice problem. The capabilities proposed by Nussbaum (2000: 78-80) are: 276 Jan Nieuwenhuis • Life – living a fully human life of a normal span; • Bodily health – being adequately nourished, and with shelter; • Bodily integrity – including freedom of movement, security from various kinds of assault, and opportunities for sexual expression and reproductive choice; • Using one’s senses – imagination and thought, with freedom of expression and conscience; • Emotions – in freedom of attachment and association; • Practical reason – including forming a conception of the good and a life plan, with liberty of conscience; • Affiliation with others in forms of social interaction like friendship and work, protected against discrimination; • Relating to other species; • Play; and • Control over one’s environment, both political and material. Sen and Nussbaum’s work on the capability approach has largely focused on clarify- ing concepts, rather than on applying them in specific institutional contexts. Their formulation of the capability approach has emerged out of debates in liberal political theory and rooted in ethical individualism. Conceptualising social justice in a developing country context The overview presented above reveals a situation where the social justice discourse has been colonised by the dominant Western philosophical and political approach and has largely became a symbol used to legitimate Eurocentric material practices and to consolidate their dominance in world forums. The policies and practices of the dominant social group led to social justice being defined according to economic gain, while marginal themes focus more on the development of social cohesion and a sense of community. In this regard, Cox (as quoted by Pitt, 1998) takes issue with the idea of the citizen as a competitive individual. She urges for a conception of the citizen which goes beyond economic frameworks and recognises the location of human beings within what she refers to as social networks and the social, as opposed to the economic, capital that animates their relationships with one another. Much of what I have presented thus far is based on the conceptualisation of an ideal- ised or “imagined social order” of modern state formations. Because they are idealised and abstracted from context, they bear distinctive signs of their Western modernist legacy (Christie, 2009). Christie (2009) notes that the realities of educational provision in many of the countries of the world – even relatively rich Western countries – do not always match these ideals. Though these ideals provide a hegemonic norm for what education across the world should look like, they are certainly out of the reach 277 Social justice in education revisited of most of the world’s children, as numerous EFA reports show (Unterhalter, 2005). Although the principles and frameworks developed may offer guidelines in terms of the development of legislation and policies, they remain barren abstractions that cannot prevail over socio-economic and political contexts which fundamentally shape what form rights and therefore social justice take in practice. In this regard, Balibar (2006: 25) asserts that: “different geo-histories engender profoundly heterogeneous points of view on the same questions of principle”. In contrast to wealthier countries, poor countries may simply be unable to afford what international conventions and treaties require them to do, more especially in terms of ideals such as “Education for All”. Developing countries may not have the economic resources or political will to provide the type of quality education for all envisaged by the international agenda written in the conference rooms of Paris or Washington. But even if developing countries had the resources and political will, cultural beliefs and practices may work against the right to equality or protection against discrimination (Christie, 2009). In addition, when discussing the markets in education Ball (1993) claims that in the ideal environment every parent is free to make a choice on a school he/she wants to educate his/her children, but the choice is actually never “open” to everybody. In fact, parents who live in a rural area with only one poorly resourced school and poorly trained teachers available to their children are constrained in their school choice and this may result in no choice at all. Their children will never receive the type of equal quality education advocated. In practical terms, this implies that the right to education for all is limited by the socio-economic realities operating at grassroots level. I would thus like to argue that we need to look at social justice in education not from an idealised theoretical angle, but that we need to depart from the social realities of the situation within which social justice must be achieved. Approaching the concept of social justice as a geo-historical situational bound construction opens it up to con- tinual reconstruction, without foreclosing future forms (Christie, 2009). From a geo- historically perspective, I accept that social-justice is embedded in a struggle for social change, particularly struggles against domination and oppression of varying kinds. In this regard, Henkin (1989) usefully points out that human rights as we currently know them are not about philosophical notions of justice, democracy or “the good society”. Rather, they are about claims which individuals may legitimately make upon their socie- ties for certain defined freedoms and benefits. In similar vein, Mandela (1994) stated: “Our single most important challenge is therefore to help establish a social order in which the freedom of the individual will truly mean the freedom of the individual…. Our definition of the freedom of the individual must be instructed by the fundamental objective to restore the human dignity of each and every South African.” Looking then at social justice and education in South Africa Fiske and Ladd (2004: 233) suggest that while South Africa has made good progress in some respects, “(a) long other dimensions, however, equity has remained elusive for reasons largely related to the country’s historical legacy and the pressures it faced as a result of the 278 Jan Nieuwenhuis new global economic environment.” Many of the freedoms gained after 1994 have only remained available to black families in urban areas with the ability to pay high school fees, transportation and other costs. The majority of black families continue to live in townships and rural areas that were part of the apartheid system and most attend schools that continue to be poorly provided for and have poorly trained teach- ers (Fiske and Ladd: 2004). Du Toit (2004) identifies four failures of post-apartheid SA. Firstly, there is little indication that the impact of HIV/AIDS can be moderated, let alone turned around, in the immediate future. An estimated 5.6 million South Africans were HIV positive in 2008, the largest number of any country in the world (Nicolay, 2008). Secondly, violent crime remains at a very high level. In the first ten years of democracy, close to a quarter of a million South Africans (about 230,000) have been murdered. More than 300,000 have survived such attacks and are recorded as victims of attempted murder. Another million or so have become victims of robbery with aggravating circumstances (Du Toit, 2004). Thirdly, poverty remains pervasive. Despite the very successful extension of service delivery, especially those that relate to hard services, by 2005 there were still more than 22 million South Africans (about 48% of the total population) living in poverty (Appel, 2008). Finally, in the midst of this problem of development lies the issue of unemployment inextricably linked to poverty and inequality, and also to crime and HIV/AIDS. Up to this point in time, the problem of unemployment has not abated. In 2009, 12.89 million people were unemployed (Mail & Guardian, 2009). Every one of the above failures of governance impacts ad- versely on human dignity and the eluding ideal of social justice. Section 9 (1) of the South African Constitution states that: “Everyone is equal before the law and has the right to equal protection and benefit of the law”. This is immediately followed by the proviso (Section 9(2)) that “Equality includes the full and equal enjoyment of all rights and freedoms” (Republic of South Africa, 1996). This promise is vacuous in achieving social justice if the failures are not addressed. In the light of these failures we need to look at the capacity of the state to address these failures. Omano (2007) describes the state capacity as the ability of the state to act authoritatively to transform the structural basis of the economy to achieve economic growth, reduce poverty and income and wealth inequalities. Inclusiveness and social justice are central to this conception. Although a number of gains could be claimed in terms of a reduction in both absolute income poverty, which is the income of poor people, and in relative income poverty, social development through social grants, housing, water and sanitation, Netshitenzhe (in Appel, 2008) noted that many studies, including the Income Expenditure Survey by Statistics South Africa, have found a widening inequality gap in the country. Omano (2007) identifies a number of aspects on which the state lacks capacity to come to terms with these failures. In part, the lack of capacity may be because the democratic state lacks the resources, human and material, to meet the myriad of needs. 279 Social justice in education revisited Looking at social justice in education then would require that we do not simply treat it as a theoretical abstract exercise, but that we take the social context and capacity of the state into consideration. Young (1990; 2000) asserts that we need to be concerned, not only with just procedures, but also with just outcomes. For her, a theory of social justice that recognises human agency, and so gives primacy to doing rather than to having, must start with an account of social injustice (Young, 1990). By prioritising doing over having she casts doubt on distributive accounts and shifts attention to the role of just procedures as a way of achieving more just outcomes under initial condi- tions of structural inequality in which the social positions of some people constrain their freedom and well-being and, may I add, also their capabilities. Where race and class produce unequal effects, as in South Africa, we can hardly claim that children have equal rights to education. But even where race and class differentials do not exist at community level other socio-economic factors, such as poverty and unemployment or violence and child abuse or child neglect, will work against achieving the type of social justice that we may propagate at a theoretical level. I would like to argue that you cannot develop a theory of social justice from a predominantly first-world context where the realities of poverty, unemployment and oppression are ignored. The context within which social justice must be acted on cannot be negated in the development of an idealistic notion of what social justice should achieve. Here again, I think it is important to link up with the work of Young (2000) when she states that ideally, social justice requires the establishment of institutional and other structural conditions for promoting self-determination and self-development of all members of society. These two ideals of social justice are pitted against the two general conditions of injustice, namely, domination and oppression, which are the main impediments to the achievement of genuine agency. Young (2000) describe op- pression in terms of five “faces”2 that inhibit people’s capacity for self development. Marginalisation and powerlessness, the faces most pertinent in developing country contexts, are structural forms of oppression that act against meaningful social justice. Marginalisation occurs when a whole category of people is excluded from meaningful participation in social life and is thus potentially vulnerable to deprivation and even extermination. The ongoing poor service delivery uprisings in many parts of South Africa are indicative of the extent to which marginalisation and oppression continue to plaque poorer communities in our society. Further, genuine inclusion has to overcome external and internal exclusion. Exter- nally excluded groups remain outside of both the distributive domains for public goods and the arenas of public deliberation. External exclusion can be variously imposed; for example, through policies like affirmative action or social practices such as the domestic confinement of women to the home and menial work. Internal exclusion can be much more insidious. Under the pretence of inclusion, previously excluded groups may be brought into a public deliberative domain but remain on the margins of deliberation (Young, 2000). Learners previously excluded from white educational 280 Jan Nieuwenhuis institutions in South Africa may thus be brought into institutions of learning, but their needs, aspirations and participation remain on the periphery. The implication of the aforementioned is that strategies are required to ensure substantive inclusion and the elimination of marginalisation and oppression. Miller (1999) proposes three substantive principles of social justice – need, desert and equality – each linked to a mode of human relationship, regarded as an ideal type. In a relationship of “solidaristic community” the principle of justice is distributed according to need. Each member of such a community (a family or a religious group, for example) is obliged to assist in meeting others’ needs, in proportion to their ability to do so. As a principle of justice, needs must be able to function in circumstances of relative scarcity where not every need can be met and where needs will compete with other demands. In a relationship of instrumental association, dessert is the principle for just distribution. Typically, Miller (1999) argues, the purposes of an organisation set the criteria for dessert, and justice is done when each member of the organisation receives a reward equivalent to the contribution s/he makes. Equality is the primary principle of just distribution in a relationship of citizenship. Equality is a principle of social justice only in limited circumstances (Miller, 1999). Although justice and distributive equality share a logical grammar, justice does not always require equal distribution. What is more, equality is not a singular concept. Unlike distributive equality, social equality (or equality of status) is not directly connected to justice for, while it identifies an ideal, it does not specify any distribution of rights or resources (Miller, 1999). Given this critique and analysis of social justice and bringing to bear the realities of social justice within a developing country context, we can now try and determine the space of social justice from a more holistic perspective. Social justice seen from a holistic perspective I now venture to conceptualise social justice from a more holistic perspective by tak- ing the geo-historical and socio-political context as a point of departure. The space of social justice within such a complex configuration is graphically illustrated in Figure 1. The basic notion is that social justice must be impressed within a force field of interacting push and pull forces as well as inhibitors. The push/pull forces consist of the historicity of the space wherein social justice is sought (the family, school, com- munity, state etc.); the social demands, expectations and agendas that actively promote a more just dispensation within the context; international trends and discourses (e.g. globalisation, education for all, marketisation of education etc.); and the dynamics of technological advances and economic imperatives for development and job creation. The very same push/pull forces can, however, also act as inhibitors of change (see the lightning bolts in the arrows in Figure 1). If we were to superimpose this conceptualisation on education we see a similar dynamic process in operation. In a developing country context, like South Africa, the 281 Social justice in education revisited social justice agenda at the level of the state is co-determined by the ideological as- sumptions of the ruling party, the policies that flows from it. As the state endeavours to create policy frameworks to address all the concerns and to satisfy its constituency, it may create elaborate frameworks that operate more as political symbolism (Jansen, 2001) rather than genuine attempts to come to terms with the real concerns. This is so as policies are moderated by the co-determinants of scarcity of resources and op- portunity cost. There are two consequences of this. First, in prioritising a particular concern over others, the state will allocate funds to that concern (e.g. creating elabo- rative administrative structures or focusing on a particular sector of the education system, like basic education), thus diverting funds away from other social justice concerns that could have been served. Second, to satisfy its constituency base it may adopt a specific political stance and develop particular policies on a social issue without allocating funds or political will to the concern (e.g. the inclusion of Grade R as part of compulsory education without allocating funds to it to make it part of the formal system of education) which then results in the policies taking on a symbolic nature. The gap between policy and praxis is thus widened. The inability of the state to provide effective service delivery in townships and informal settlements in South Africa over the past number of years and the resultant ongoing violence and demonstrations is a case in point. Only those social justice issues that are actively pursued feature on the state agenda and are thus controlled and subjected to increased managerialism. Figure 1. The space of social justice in education: a holistic perspective Social demands expectations agendas Historicity Socio-political Cultural Morals Ideology Religion State Ideology Policy Scarcity Opportunity cost School Tradition Convention Culture Climate Curriculum Economic development Aspirations Innovation Technological Community ideals International discourse conventions declarations instruments Push forces Push forces Pull forces Pull forces 282 Jan Nieuwenhuis At the school level where policies must be implemented, the same push and pull forces are in operation but, admittedly, international forces may have less of an impact on the local level. The other factors that have helped shaped the school’s tradition, conven- tions, culture, climate and curriculum in operation (including the hidden curriculum) may operate as strong inhibitors to change. The result of this is that policies handed down from the state are dealt with in a way that will ensure statutory or administra- tive compliance, without addressing the deeper underlying assumptions, values and beliefs of the school. Any system committed to creating greater social justice in education will not suc- ceed unless it addresses social justice in a more comprehensive or holistic manner. This, in turn, implies that any state that is committed to social justice in education must come to terms with the following challenges in conceptualising its strategies aimed at promoting and advancing social justice in education: 1. Accept that social justice is not an external condition or system. If it were an external condition or system, we could simply have learned social justice as we would have learned any other content-based subject in schools. Social justice is an ideal – a vision – that should be reinvented and reinvigorated by each generation (Knight, 2001) so that it becomes a way of life that perme- ates all aspects of our lives. It requires that every citizen take responsibility to protect, advance and promote the values, principles and ideals of social justice. South African history bears witness to the long struggle to realise the ideal of social justice. Whether we succeed in protecting and advancing social justice will depend on the will and ability of all the citizens of the country to work towards shaping social justice in all spheres of life. 2. Realise the importance of creating personal agency that is supportive of social justice. The statement of Rawls (1971) that a well-ordered society requires individuals with highly developed moral sensibilities is important in this regard. The question is: Is justice without morality possible? I am convinced that social justice cannot be served in any shape or form in a self-interested and immoral society. It is not about pointing fingers or playing the blame game where we accuse others of how immoral and corrupt they are. It starts with taking responsibility for the self and to live the values that will promote social justice. Social justice remains an empty ideal unless we can infuse it with meaning by basing justice on certain moral principles and empower people to take personal responsibility for doing and extending justice to oth- ers. This is aligned with the principle that each member of such a community (a family or a religious group, for example) is obliged to assist in meeting others’ needs, in proportion to their ability to do so (Miller, 1999). The state should thus take human agency seriously and enable the self-development and self-determination of all citizens (Pendlebury & Enslin, 2004). 283 Social justice in education revisited 3. Justice must be achieved amidst scarcity. As a principle of justice, need must be able to function in circumstances of relative scarcity, where not every need can be met and where needs will compete with other demands (Miller, 1999). In a developing country context the state will be required to move more and more in the direction of a welfare state or what Nussbaum (2000) calls ensuring bodily health, that is adequately nourished, and with shelter. In these conditions the welfare state must be empowering rather than merely dispensing (Giddens, 1991). In terms of education, it implies that the state provides opportunities and support for all children to exercise the range of functions necessary for developing their mature adult capabilities (Pendlebury & Enslin, 2004). 4. Accept the geo-historical history of the struggle as something that must be reconciled with attempts to create social justice. This implies that the state must work with communities to repair damaged solidarities by reconciling autonomy and interdependence (Giddens, 1991). It also implies the elimina- tion of structural forms of oppression that restrict people’s access to resources and opportunities for developing and exercising their capacities or capabili- ties for living a decent human life (Young, 2002). In doing this, care must be taken not to create new forms of exclusion that will create new forms of social injustice. Similarly, it must ensure fairness in terms of rewards. You cannot reward state officials for failing to deliver the social services intended to create a just society. Justice is done when each member of an organisation receives a reward equivalent to the contribution s/he makes (Rawls, 1971; Miller, 1999). This also applies to education. You cannot reward a child if no contribution has been forthcoming, and you cannot reward educators for not performing at the level required from them. For example, you cannot promote a child to the next grade automatically if s/he has not participated in the educational process on an equal basis with others. Conclusion Brighouse (2002) asserts that, until recently, no theory of justice in education ex- isted and that we cannot simply read a theory off from Rawls, Young, Giddens or any other author. In this article I have critically reviewed a number of theories that could inform such a theory of social justice in education. I have argued that social justice is an ideal – a vision that must become a way of life that permeates all aspects of being human. For this, reason it cannot be legislated or achieved through interna- tional conventions or declarations – albeit important instruments to promote social justice – social justice must be lived. It requires that every citizen take responsibility to protect, advance and promote the values, principles and ideals of social justice, although for the marginalised and oppressed this is not enough. They need access to 284 Jan Nieuwenhuis resources and opportunities for developing and exercising their capacities or capabili- ties for living a decent human life. The road to achieving this is, however, obstructed by the geo-historical and scarcity challenges faced by developing countries. These challenges and their negative impact on achieving social justice in education must be addressed. As long as these conditions exist there cannot be social justice. It is a journey that all developing countries and their people must embark on. In the Long Walk to Freedom Nelson Mandela (1994:751) said: Some say that (the liberation of the oppressed and the oppressor) has now been achieved. But I know that that is not the case. The truth is that we are not yet free: we have merely achieved the freedom to be free, the right not to be oppressed. We have not taken the final step of our journey, but the first step on a longer and even more difficult road. For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others. Jan Nieuwenhuis is an Associate Professor in the Department of Education Management and Policy Studies of the Faculty of Education at the University of Pretoria, South Africa. He has been involved with educational research since 1979. He has published more than 40 technical research reports, two academic books, contributed eight chapters to academic books, published twelve articles in academic journals as an author or co-author and delivered numerous papers at national and inter- national conferences. His research interest is in the field of values and human rights in education. 285 Social justice in education revisited References Appel, Michael. (2008) Poverty in South Africa ‘is declining’ 2 October 2008 http://www.southa- frica.info/about/social/poverty-021008.htm Apple, M.W. (1995) Education and power. (2ND Edition). London: Routledge & Kegan Paul. Balibar, E. (2006) Constructions and deconstructions of the universal. Critical Horizons 7 (1): 21–43. Ball, S.J. (1993) Education Markets, Choice and Social Class: the market as a class strategy in the UK and the USA. British Journal of Sociology of Education 14 (1): 3-19. Beaney, M. (1998) ‘What is Analytic Philosophy? Recent Work on the History of Analytic Philoso- phy’, British Journal for the History of Philosophy 6: 463-72. Brighouse, H. (2002) Egalitarian liberalism and justice in education. Political Quarterly, 2002: 181-190. Chinn, P. L., & Kramer, M.K. (1999) Theory and nursing: Integrated knowledge development (5th Edition). St. Louis, MO: Mosby. Christie, P. (2010) The complexity of human rights in global times: The case of the right to educa- tion. International Journal of Educational Development 30: 3-11. Du Toit, P. (2004) Affirmative Action and the Politics of Transformation: A Survey of Public Opinion. A study commissioned by the F W de Klerk Foundation August 2004. Fawcett, J. (1999) The relationship of theory and research (3rd Edition). Philadelphia: F.A. Davis. Fiske, E.B., Ladd, H.F. (2004) Elusive Equity: Education Reform in post-Apartheid South Africa. Brookings Institute/HSRC Press, Washington, DC/Cape Town. Gewirtz, S. & Cribb, A. (2009) Towards a contextualized analysis of social justice in education Educational Philosophy and Theory 1, (1): 69-81. Giddens, A. (1991) Modernity and Self-Identity, Stanford: Stanford University Press. Giddens, A. (1994) Beyond Left and Right: The Future of Radical Politics. Cambridge: Polity. Griffiths, M. (2003) Action for Social Justice in Education. London: Open University Press. Gynther, P. (2009) Basic Skills Provision for the Have-Not’s: A Rights Hoax? Re-Examining Inter- national Standards on the Right to Education. Date of submission: July 22, 2009. Henkin, L. (1989) Universality of the concept of human rights. The Annals of the American Acad- emy 506: 10–16. Jansen, J.D. (2001) Rethinking Education Policy in South Africa: Symbols of change, Signals of Conflict. In Kraak, A & Young, M (eds.). Education in Retrospect: Policy and Implementation Since 1990. Pretoria: HSRC. Keet, A. (2006) Concept Analysis of Human Rights Education. Unpublished PhD Thesis. Univer- sity of Pretoria. South Africa. Kennedy, D. (2004) The Dark Sides of Virtue. Princeton: Princeton University Press Knight, T. (2001) Longitudinal development of educational theory: democracy and the classroom. Journal of Education Policy, 16(3): 249-263. MacIntyre, A. (1985) After Virtue. (2nd Edition), Duckworth, London. Mail and Guardian. (2008). Racist video surfaces at the University of the Free State. 26 February 2008. Mail & Guardian (2009) SA unemployment rate increases. 29 October 2009. Mandela, N. (1994) The long walk to freedom. London: Brown and Company. Mandela, Nelson. (1994) State of the Nation Address, Cape Town: Parliament, 24 May 1994. Maslow, A. H. (1966) The Psychology of Science: A Reconnaissance. New York: Harper & Row. 286 Jan Nieuwenhuis McMillan, J. H., & Schumacher, S. S. (1997) Research in Education: A Conceptual Introduction. New York: Longman. Miller, D. (1999) Principles of social justice. Cambridge, Mass.: Harvard University Press. Morse, J. M., Hupcey, J. E., Mitcham, C., & Lenz, E. R. (1997) Choosing a strategy for concept analysis in nursing research: Moving beyond Wilson. In Gift, A. G. (ed.), Clarifying concepts in nursing research. New York: Springer: 73-96. Mouton, J. (2001) How to succeed in your Master’s and Doctoral Studies, A South African Guide and Resource Book. Pretoria: Van Schaik Publishers. Neuman, W.L. (1994) Social Research Methods: Qualitative and Quantitative Approaches (2nd Edition). Boston: Allyn and Bacon. Nicolay, Nathea, (2008) AIDS and Demographic model. Metropolitan www.actuarialsociety.org. za (Accessed on 12 December 2009). Nieuwenhuis, FJ. (2005) From equality of opportunity to equality of treatment as a value-based concern in education. In: Russo, C., Beckman JL and Jansen, J.D. (eds.) Equal Educational Opportunities: Comparative Perspectives in Education. Pretoria: Van Schaik. Nieuwenhuis, F.J. (2008) Organisational change: From adjusting the clock to morphogenesis. In: Weber,E (ed.) Educational Change in South Africa. Rotterdam: Sense Publishers. Nozick, R. (1996) Distributive Justice. In Cahn, S. et al (eds.) Reason at Work. Forth Worth: Har- court Brace. Nussbaum, M.C. (2000) Women and development. Cambridge: Cambridge University Press. Nussbaum, M., Glover, J. (eds.) (1995) Women, Culture and Development. Clarendon Press, Ox- ford. Nussbaum, M., Sen, A. (eds.) (1993) The Quality of Life. Oxford: Oxford University Press 303–323. Omano, E. (2007) Affirmative Action and State Capacity in a Democratic South Africa. Johan- nesburg: Centre for Policy Studies. Pendlebury, S. and Enslin, P. (2004) Social justice and inclusion in education and politics: the South African case Journal of Education, 34: 31-43. Pichen, M., (2001) Ethical foreign policies and human rights: dilemmas for non government or- ganisations. In: Smith, K.E., Light, M. (eds.) Ethics and Foreign Policy. Cambridge: Cam- bridge University Press, 93–111. Pitt, Jane. (1998) Social justice in education in ’new times.’ Paper delivered Wednesday, 2 Decem- ber 1998. Australian Association for Research in Education Annual Conference. 29 November - 3 December 1998. Rawls, J. (1958) Justice as fairness. Philosophical Review, 67: 164-194. Rawls, J. (1971) A Theory of Justice. Cambridge, Mass: The Belknap Press. Republic of South Africa. (1996) The Constitution of the Republic of South Africa, 1996. (Act No. 108 of 1996). Cape Town: Government Printer. Robeyns, I. (2003) Sen’s capability approach and gender inequality: selecting relevant capabili- ties. Feminist Economics online at http://www.ingridrobeyns.nl/Downloads/FE_Sen_GI.pdf (Accessed 15 June 2005). Rodgers, B. L. (2000) Philosophical foundation of concept development. In B. L. Rodgers & K. A. Knafl (eds.), Concept development in nursing: Foundation, techniques and application. London: Saunders: 7-37. Sen, A., (1981) Poverty and Famines. Clarendon Press, Oxford. Sen, A., (1992) Inequality Re-examined. Clarendon Press, Oxford. 287 Social justice in education revisited Sen, A., (1999) Development as Freedom. Oxford University Press, Oxford. Taylor, C. (1990) Sources of the Self. Cambridge University Press, Cambridge. Unterhalter, E. (2005) Global inequality, capabilities, social justice: The millennium development goal for gender equality in education. International Journal of Educational Development 25: 111–122. Young, I. M. (1990) Justice and the Politics of Difference. Princeton, New Jersey: Princeton Uni- versity Press. Young, I. M. (2000) Inclusion and democracy. Oxford: Oxford University Press. Endnotes 1 This article is based on a paper presented at the Örebro-Unisa International Conference 2010, South Africa (1-3 February 2010). 2 The five faces of oppression are exploitation, marginalisation, powerlessness, cultural imperial- ism and violence. 
work_hg4upa25x5ggjpsuh2wmuft4cm	----	Crime, Justice and Indigenous Peoples: the ‘New Justice’ and ‘Settler’ States Crime, Justice and Indigenous Peoples In Broadhurst, R.G. 1999, ‘Crime, Justice and Indigenous Peoples: The ‘New Justice’ and Settler States’, Australian and New Zealand Journal of Criminology, Vol. 32:105-108. Copyright 1999 Australian Academic Press Introduction The articles in this issue draw on cross-national comparisons of indigenous crime and justice in three ‘settler societies’, Australia, Canada and New Zealand. These kindred states share a common imperial history but their geo-political, cultural and historical trajectories are sufficiently different to reveal the underlying character of neo-colonial indigenous-state relations. Despite differences in indigenous culture, the timing of contact, the ‘civilizing’ or assimilationist mechanisms employed and constitutional form all states share an over-reliance on penal measures as a means of regulating indigenous-state relations. Yet considerable variations in the penal experience of Aborigines are observed so that differences are often greater amongst them than between Aborigines and non-Aborigines. These anomalies in indigenous criminalization are for Tyler (this issue) not only a product of anomie but reflect variations in economic dependency, cultural resilience, ethnic fluidity and 'identity' arising from the encounter with the post-colonial state. Given the economy of imprisonment as a means of regulating the disorder represented by the conflicts and strains of Aboriginal engagement with modernity, its deployment has been efficient in managing race conflict and cross-cultural inequalities. However, the extent to which the state can resort to policing institutions to manage the on-going encounter with indigenous people, is now subject to a pervasive (global) discourse on human rights. In 'liberal' neo-colonial states efforts to accomplish domestic de-colonization and incorporate Aborigines into the economy must accord with modern sensibilities about self-determination and 'difference'. However, ‘self-determination’ has proven difficult to define in practice, and “(I)t has been easier to say that ‘self-determination’ is not ‘assimilation’ than to say what it is” (Rowse 1998:205). Nevertheless, the state seeks consensual means for regulating the indigenous domain and has acquired new ideologies and orientations that accommodate cultural difference. Co-opted customary forms of dispute resolution, equated with self-determination, animated restorative or ‘new’ justice approaches in indigenous communities. Although restorative justice had emerged in a wider response to the percieved crisis in the control of juvenile delinquents it draw inspiration from the colonized (for example, native American ‘sentencing circles’ and Maori ‘family group conferences’) but are appropriations redolent of Orientalism (Blagg 1997). The notion of restorative justice relies on a re-imagined community where shaming is meaningful and a less costly means to control delinquency. As Tauri (this issue) has noted the cherished post-war liberal goal of assimilation realised by formal legal and political equality [glossed by incorporation of indigenous cultural symbols] for indigenous people as Australian, Canadian or New Zealand citizens has not lost its cogency. The privileging of formal legal rights over cultural, social and economic rights through notions of citizenship operates to confine ‘self- determination’ to choice within the framework of given forms of governmentality. Self determination, when realized as restorative justice may serve to limit indigenous autonomy. Thus contemporary penal practices that incorporate alternatives to incarceration such as restorative justice or ‘New Justice’ are, as LaPriarie (this issue) argues, a potent means of accommodating the enduring differences between the settlers and the indigenous inhabitants. The ‘New Justice’ permits problems of difference to be mediated at the local level without compromising the integrity of the state or the duties of citizenship. Yet La Priairie questions whether this elaboration (“doing justice differently”) amounts to little more than “responsibilization without resources”. Warfhuht, Palys and Boyce (this issue) in their account of one such programme in British Columbia, note an ever present risk to programme effectiveness was dependence on state support. Drawing on the inspiration of the Canim Lake people’s Family Violence Programme they stress processes that involve a self-consciously re-imagined sense of community that interrupted dependency created by assimilation. By 'owning the problem' communities address otherwise intractable problems of family violence and sexual abuse by evoking traditional healing. The process begins with self-help, listening and the withdrawal of state agencies from a central to an adjunctive role: a process that tests the limits of who defines crime and how to respond. Homel, Lincoln and Herd (this issue) discuss the prospects of crime prevention in indigenous communities and note how little attention has been given to questions of gender and 'ethnicity' in the extant literature. Their approach informed by developmental criminology identifies relevant risk and protective factors and shows that indigenous crime has been over-determined by more conventional approaches. The key for them is also self-determination as ownership of the process and practice of community crime prevention. For Jackson the intersection of ‘race’, class and gender in the context of the colonial legacy render the struggle to break the "cycle of violence" an especially difficult problem without the promise of restorative justice or jurisidictional autonomy Separate or autonomous self-regulation does seem an option the Canadian state [for example, Nunavut once part of the NW Territories] can contemplate within its federal structure but less likely in a centralized state such as New Zealand. For Jackson, human rights as enshrined in the Canadian Charter are the first step in mobilizing legal resources in the struggle for self-determination. Harding (this issue) in an analysis of the aftermath of the Royal Commission into Aboriginal Deaths in Custody observes that despite reductions in Aboriginal deaths in police custody, deaths in prisons are no less frequent than before the inquiry. This arose because ‘system’ approaches to reducing the risk of prison mortality were weakened by the focus on factors particular to the excessive levels of Aboriginal custody. Thus ‘Aboriginalism’ and reliance on ‘rights’ compartmentalized solutions which required generic approaches that actually address the inadequacy of prison regimes. The essays show that there has been a fundamental shift in the focus of criminological interest away from the indigenous ‘problem’ and a pre-occupation with the pathologies of indigenous crime to the pathologizing theories and criminalizing consequences of the welfare-punishment nexus aptly embedded welfare colonialism. No longer is the central ‘problem’ the deprived indigenous subject but the ‘settler’ state and the legacies of (post) colonialism. The subject of interest is the settlers and how they have conceptualized the indigenous [via Orientalism qua ‘Aboriginalism’] and mobilized the law to legitimate land theft and manage ‘race’ conflicts. The Aboriginal struggle to have law exercised in their interest is illustrated by Cuneen’s account of the Australian state's response to cultural genocide exposed in the ‘stolen generations’ inquiry: a practice relevant to all three settler states. Here denial of genocide takes on characteristics reminiscent of “techniques of neutralization” [Matza and Sykes 1957] which is conventionally applied to explain the ‘criminality’ of offenders who otherwise purport to respect the laws and values they violate. References Blagg, Harry 1997. ‘A Just measure of shame? Aboriginal Youth and Conferencing in Australia’ The British journal of Criminology, 37:481-501. Rowse, Tim (1998) White Flour, White Power: From Rations to Citizenship in Central Australia, Cambridge University Press, Melbourne. Sykes, Gresham, and David Matza (1957) ‘Techniques of Neutralization: A Theory of Delinquency’, American Sociological Review, Volume 22, pp. 667-670. Roderic Broadhurst, Hong Kong, June 1999. 
work_hiiinsghivhgziswrj6z6f3mfm	----	Downward mobility and Rawlsian justice Downward mobility and Rawlsian justice Govind Persad1 ! Springer Science+Business Media Dordrecht 2017 Abstract Technological and societal changes have made downward social and economic mobility a pressing issue in real-world politics. This article argues that a Rawlsian society would not provide any special protection against downward mobility, and would act rightly in declining to provide such protection. Special treatment for the downwardly mobile can be grounded neither in Rawls’s core principles—the basic liberties, fair equality of opportunity, and the difference prin- ciple—nor in other aspects of Rawls’s theory (the concept of legitimate expectations, the idea of a life plan, the distinction between allocative and distributive justice, or the distinction between ideal and nonideal theory). Instead, a Rawlsian society is willing to sacrifice particular individuals’ ambitions and plans for the achievement of justice, and offers those who lose out from justified change no special solicitude over and above the general solicitude extended to all. Rather than guaranteeing the mainte- nance of any particular individual or group’s economic position, it provides all of its members—the upwardly mobile, the downwardly mobile, and the immobile—a form of security that is at once more generous and more limited: that they will receive the liberties, opportunities, and resources promised by the principles of justice. Keywords Social mobility ! Economic mobility ! Legitimate expectations ! Trade ! Automation ! Social change ! John Rawls Changes in labor, housing, and other markets have brought concerns about downward social and economic mobility to the forefront of political debates. & Govind Persad gpersad@jhu.edu 1 Berman Institute of Bioethics, Johns Hopkins University, 1809 Ashland Ave., Baltimore, MD 21205, USA 123 Philos Stud DOI 10.1007/s11098-017-0867-8 http://crossmark.crossref.org/dialog/?doi=10.1007/s11098-017-0867-8&amp;domain=pdf http://crossmark.crossref.org/dialog/?doi=10.1007/s11098-017-0867-8&amp;domain=pdf Globalized economic competition and labor mobility has disrupted stable social and economic positions, as has technical innovation such as the automation of tasks and the easy dissemination of digital content. However, the threat that change poses to those currently occupying these formerly stable but now precarious positions is frequently not absolute deprivation, but rather relative deprivation—and, in particular, deprivation relative not to others wealth, but rather to their own past standard of living. In this article, I argue that a broadly Rawlsian society would not provide downwardly mobile individuals with any special protection against, or compensa- tion for, the effects of social change, and that it would act rightly in not providing such protection. Rather, all members of a Rawlsian society would enjoy a secure guarantee of basic liberties, a decent social minimum, and fair opportunity to compete for positions of advantage. As an exegetical matter, Rawls’s theory offers no special assistance to those who suffer the effects of downward mobility. As a normative matter, its lack of special solicitude for the downwardly mobile is desirable and not regrettable. Rawls’s most direct discussion of downward mobility occurs in a brief comment on free trade: Persons engaged in a particular industry often find that free trade is contrary to their interests. Perhaps the industry cannot remain prosperous without tariffs or other restrictions. But if free trade is desirable from the point of view of equal citizens or of the least advantaged, it is justified even though more specific interests temporarily suffer. For we are to agree in advance to the principles of justice and their consistent application from the standpoint of certain positions. There is no way to guarantee the protection of every interest over each period of time once the situation of representative men is defined more narrowly. Having acknowledged certain principles and a certain way of applying them, we are bound to accept the consequences. This does not mean, of course, that the rigors of free trade should be allowed to go unchecked. But the arrangements for softening them are to be considered from an appropri- ately general perspective.1 Free trade may be ‘‘desirable from the point of view of equal citizens or of the least advantaged’’ because it permits workers to specialize in their most productive occupation, or drives down the cost of producing consumer goods, such as clothing, needed by all but especially by the disadvantaged. Other policy changes, as well as technical innovation, might be similarly desirable despite their disruptive effects on specific groups or industries. Policy changes such as carbon taxes or farm subsidy reforms enable society to avoid the worst effects of climate change or improve access to healthy foods. Technological advances like the Internet and the cellular phone enable individuals to more easily communicate with loved ones and bring products to market. 1 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999), p. 85. G. Persad 123 Yet, as Rawls observes, changes desirable from the point of view of justice frequently impose losses on particular individuals or groups. Carbon taxes may hurt coal miners. Entrepreneurs may wreak creative destruction on established firms. Trade liberalization may render assembly-line manufacturing obsolete in developed nations. Rawls recognizes the possibility that changes consistent with justice may disadvantage specific groups not only in his brief discussion of free trade, but also in his longer examination of efficiency and justice, where he observes that even if several arrangements are equally efficient—in the sense that moving from one efficient arrangement to another will always worsen the prospects of some group— we may select a more just arrangement at the expense of a particular individual or group’s prospects. To illustrate the potential breadth of downward mobility, consider six cases where economic or social changes produce downward mobility: 1) GASOLINE TAXES. The threat of climate change leads to substantially higher gasoline taxes. These taxes cause homes in exurban areas to lose much of their value; many homeowners in these areas face the prospect of needing to move, losing much of their home equity, or even foreclosure. 2) PHYSICIAN PAYMENTS. National health insurance leads to reduced payments to physicians. While those who expected to be physicians can still earn a decent living practicing medicine, their living standards are substantially reduced from what they expected. 3) FREE MARKET ETHANOL. Cheaper, more efficient sugarcane ethanol is imported from Brazil to the United States, because tariffs have been eliminated, and replaces corn-based ethanol. This lowers gasoline prices and creates jobs in the importing industry, but destroys the jobs of farmers and corn-based ethanol producers. 4) AUTOMATED TRUCKING. Automated vehicles are deployed in the trucking industry and, because of their improved safety and efficiency, largely displace human truck drivers. Former truck drivers must retrain or face income declines. 5) GOURMET TRENDS. Popular culture extols the virtues of cuisines that feature fresh vegetables and herbs. Sales of canned vegetables and precooked meals drop, and both stockholders and employees suffer economic losses. 6) INFLATION. To stimulate broader economic growth and reduce unemployment, the Federal Reserve increases the money supply, leading to higher levels of inflation. This inflation reduces the purchasing power of those holding wealth. The first three cases build on the work of theorists—Lukas Meyer, Nien-hê Hsieh, and Aaron James—who argue in favor of special protections against downward mobility, while the final three develop similar ideas in different directions. Meyer argues that ‘‘the expectation of people in the highly industrialized countries… that they will be able to emit on average what collectively will amount to their states’ current level of emissions and up to that level in the future’’ is politically, morally, and epistemically legitimate, and that their expectations constrain efforts to combat Downward mobility and Rawlsian justice 123 climate change.2 Hsieh argues that we must respect doctors’ ‘‘legitimate expecta- tions’’ of earning a pre-reform market wage.3 And James asserts that ‘‘because it seems unfair to worsen someone’s condition by $1000 merely to give someone else $1500,’’ relaxing a tariff when doing so will drive down the wages of some domestic workers requires a weighty justification.4 These cases illustrate that downward mobility encompasses a variety of different economic causes and effects: it can include loss of firms’ capital (INFLATION); of homeowners’ wealth (GASOLINE TAXES); or of labor income (PHYSICIAN PAYMENTS, FREE MARKET ETHANOL, AUTOMATED TRUCKING). And it can stem from technical innovation (AUTOMATED TRUCKING), consumer preferences (GOURMET TRENDS), legal reform (INFLATION, FREE MARKET ETHANOL, PHYSICIAN PAYMENTS), or a combination of law with natural phenomena (GASOLINE TAXES). Downward mobility’s implications also cut in complex ways across political classifications. For instance, thinkers on the right might argue that we must compensate or protect the losers in INFLATION, but not in AUTOMATED TRUCKING; meanwhile, many on the left would advocate for the reverse. In contrast, I argue that they are all amenable to the same analysis. I see no decisive reason to be more concerned about changes that policymakers bring about than those they fail to prevent, changes resulting from trade rather than technical innovation or shifting consumer preferences, or changes threatening income rather than wealth (or vice versa). Similarly, I reject Hayek’s well-known suggestion that the effects of a spontaneous market order on individuals—as in GOURMET TRENDS—are outside the scope of justice.5 Our ability to limit the effects of a ‘‘spontaneous’’ market order by compensating the losers in GOURMET TRENDS entails that whether or not to compensate them is a question of justice, rather than a question outside justice. This view about the broad scope of justice finds additional support in the fact that the major political and social institutions of a Rawlsian society include the market and family as well as the state. Therefore, while I agree with Hayek’s conclusion that we should not compensate the losers in GOURMET TRENDS, my agreement stems not from a belief that the market’s results are uncriticizable but instead from the belief that merely suffering an economic setback—whether due to the market, nature, or just laws, and whether the setback constitutes lost income or lost wealth—does not, without more, generate an entitlement to aid at public expense. While Rawls, like Meyer, Hsieh, and James, recognized the burdens that institutional change can place on individuals and industries, his conclusions about what we should do to ease those burdens diverge from theirs. In the next two sections, I consider and argue against interpretations of Rawls’s theory of justice that would justify special protections against downward mobility. I first consider 2 Lukas H. Meyer and Pranay Sanklecha, ‘‘Individual Expectations and Climate Justice,’’ Analyse & Kritik 2 (2011): 449–471, at p. 468. 3 Nien-hê Hsieh, ‘‘Moral Desert, Fairness and Legitimate Expectations in the Market,’’ Journal of Political Philosophy 8 (2000): 91–114, at p. 103. 4 Aaron James, Fairness in Practice (New York: Oxford University Press, 2012), p. 207. 5 See F.A. Hayek, Law, Legislation, and Liberty, vol. 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), p. 33. G. Persad 123 whether special measures for the downwardly mobile could be grounded in Rawls’s principles of justice: (a) The basic liberties (b) Fair equality of opportunity (c) The difference principle I argue that none of these require special treatment for those experiencing downward mobility. Rather, they recommend providing a more general form of protection to all members of society. I then consider whether other aspects of Rawls’s theory might support special treatment for the downwardly mobile where his core principles do not. These include: (d) The concept of legitimate expectations (e) The idea of a life plan (f) The distinction between allocative and distributive justice (I cover these potential sources for special treatment in descending order of their plausibility.) I argue that these concepts either do not support special measures for the downwardly mobile or are subordinate to the principles of justice. Last, although my focus is primarily on how Rawlsian ideal theory would approach downward mobility, I close with a discussion of how the distinction between ideal and nonideal theory might bear on questions concerning downward mobility. Ultimately, although Rawlsian justice lacks a separate and distinct theoretical framework for approaching problems of institutional change,6 it offers a very simple and normatively attractive way of addressing institutional change: offer those who lose out from justified change no special solicitude over and above the general solicitude extended to all. All members of a Rawlsian society, including those who lose from social change, those who gain, and those who never had much to lose in the first place, enjoy the same social guarantees: the basic liberties, fair equality of opportunity, and the difference principle. A Rawlsian society does not guarantee the maintenance of any particular individual or group’s economic position. Rather, it provides all of its members—the upwardly mobile, the downwardly mobile, and the immobile—a basic structure in which they can lead a fulfilling and vibrant life. While a Rawlsian society is willing to sacrifice the details of particular individuals’ ambitions and plans to the achievement of justice, it provides individuals a guarantee against being deprived of social goods or arbitrarily controlled by the powerful. This conclusion is particularly interesting because it suggests that an influential strand of thought in analytic political philosophy—Rawls’s theory of distributive justice—provides an important insight into how to respond to social change. Some have recently suggested that Rawls’s theory of justice provides us a framework for 6 Allen Buchanan, ‘‘Distributive Justice and Legitimate Expectations,’’ Philosophical Studies 28 (1975): 419–425, at p. 425. Downward mobility and Rawlsian justice 123 responding to the growth of real-world inequality.7 I believe Rawls’s theory is likewise relevant to currently pressing political questions surrounding downward mobility. And my examination of Rawls’s theory suggests that it has implications that are more revisionary for these questions than it might initially seem. 1 Downward mobility and Rawlsian principles Rawls’s theory of justice involves two principles, which are presented in order of priority. The first principle is that each individual is entitled to a set of basic liberties that is compatible with equal liberties for others. The second principle is that inequalities in social and economic circumstances, for example higher pay for workers in certain jobs, must be attached to positions that are substantively open to all (fair equality of opportunity) and must be to the greatest benefit of the worst-off group in society (the difference principle). In what follows, I separate the second principle into its two parts, which Rawls also presents in order of priority. 1.1 The basic liberties Downward mobility would clearly be objectionable were it to deprive individuals of their most fundamental entitlement—their basic liberties. But it poses, in itself, no threat to most basic liberties. Only if it leads to absolute deprivation will it threaten political rights, liberty of conscience, and physical integrity. The only basic liberty that dropping from, say, the upper middle to the working class might threaten is the ‘‘right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.’’8 However, downward mobility does not violate the rule of law. Nor does it deprive individuals of protected personal property. 1.1.1 The rule of law Alexander Brown argues that the rule of law ‘‘requires that public bodies manage changes in ways that respect the legitimate expectations of those adversely affected.’’9 Because the rule of law is a basic liberty, lexically subordinate principles such as fair equality of opportunity or the difference principle cannot be realized at its expense. On this interpretation, therefore, legitimate expectations would constrain distributive and egalitarian goals. 7 Joshua Cohen (with Seth Resler), ‘‘Occupation as Fairness: What John Rawls Would Make of the Occupy Movement,’’ Boston Review (Nov. 17, 2011), http://bostonreview.net/joshua-cohen-seth-resler- john-rawls-occupy-wall-street; Steven Mazie, ‘‘Rawls on Wall Street,’’ The New York Times (Oct. 21, 2011), http://opinionator.blogs.nytimes.com/2011/10/21/rawls-on-wall-street/. 8 Rawls, A Theory of Justice, p. 53. 9 Alexander Brown, ‘‘Rawls, Buchanan, and the Legal Doctrine of Legitimate Expectations,’’ Social Theory and Practice 38 (2012): 617–644, at p. 634. G. Persad 123 http://bostonreview.net/joshua-cohen-seth-resler-john-rawls-occupy-wall-street http://bostonreview.net/joshua-cohen-seth-resler-john-rawls-occupy-wall-street http://opinionator.blogs.nytimes.com/2011/10/21/rawls-on-wall-street/ Brown’s understanding of the rule of law runs contrary to Rawls’s. As Brown himself concedes, Rawls’s definition of the rule of law comprises only a few basic ideas, namely the precept that ought implies can; the precept that similar cases be treated similarly; the precept that there is no offense without law; [and] the precepts of natural justice, including the precept that there is due process in law.10 Importantly, this list excludes substantive protection for expectations. Given the limitations that an overexpansive understanding of the rule of law would place on efforts to realize the difference and equality of opportunity principles, this exclusion was no oversight. Further, the descriptive fact that some nations’ legal cultures explicitly protect substantive expectations does not provide decisive reason either to read Rawls as defining the rule of law to protect expectations or to treat such protection as normatively justified or required.11 Ellen Frankel Paul likewise argues that rule of law considerations require that the protection of individuals’ expectations trump fair equality of opportunity and the difference principle. She argues that [a]n explicit component of the first principle of justice, that which decrees equal compatible liberties for all, is the traditional notion of the rule of law which dictates in part: (1) that laws be enacted in good faith and that this good faith be recognized by those subject to the enactments; (2) that similar cases be treated similarly, and (3) that laws ought not be retroactive. Rawls terms this ‘‘justice as regularity,’’ and he concludes that the rules of a legal system ought to serve to organize social behavior by providing a basis of legitimate expectations.12 The first two prongs are irrelevant: downward mobility frequently stems from legislative decisions made in good faith that treat similar cases similarly. Meanwhile, even if the prohibition on retroactivity protects those who suffer losses from institutional changes, Paul misinterprets that prohibition. Rawls requires only that retroactive criminal laws be used sparingly, and does not prohibit the retroactivity of civil legislation.13 A proposal like GASOLINE TAXES or a direct increase in property taxes, though it may seriously set back a landowner’s interests, does not violate that landowner’s basic liberties. 10 Ibid., p. 637. 11 Contrary to ibid., pp. 637–643. Buchanan, ‘‘Distributive Justice and Legitimate Expectations,’’ 422, agrees with me that the ‘‘rule of law itself appears too lean to provide what is required’’ for the protection of legitimate expectations. 12 Ellen Frankel Paul, ‘‘The Just Takings Issue,’’ Environmental Ethics 3 (1981): 309–328, at p. 326. 13 Rawls, A Theory of Justice, 209. Christopher Bertram similarly worries that Rawlsian justice will conflict with the ‘‘norm of prospectivity,’’ though Bertram—like me and unlike Paul—ultimately prioritizes justice over prospectivity. Bertram, ‘‘The Problem of Rawlsian Transition,’’ posting to Crooked Timber, Aug. 7, 2012, http://crookedtimber.org/2012/08/07/the-problem-of-rawlsian-transition/. Downward mobility and Rawlsian justice 123 http://crookedtimber.org/2012/08/07/the-problem-of-rawlsian-transition/ Paul likewise misconstrues the idea of justice as regularity, which prohibits invidious bias against individuals or groups as well as individual corruption.14 Although Rawlsian justice as regularity ‘‘supports and secures legitimate expec- tations,’’ such expectations must be consistent with the principles of justice, including the difference principle.15 The rule of law principle does not elevate the protection of expectations simpliciter—as opposed to legitimate expectations—to the level of a basic liberty. Although Rawls flirts with the idea of endorsing some broader substantive protection of good-faith—rather than objectively legitimate— expectations as part of justice as regularity, he ultimately treats achieving just social institutions as more important than protecting individual expectations.16 A further reason to doubt that the rule of law protects against downward mobility derives from the requirement that laws be democratically justified by public reasons. In a Rawlsian society, no individual will simply be expropriated at one stroke by kingly fiat.17 Rather, any change must be implemented through a democratic process in which decisions are justified to those affected. The requirement of democratic justification also serves to provide notice to those whose holdings might be affected by a change in law. For instance, before imposing a gasoline tax, a legislature must take up and debate the proposed tax, putting potentially affected interests on notice of the change and giving them the opportunity to argue against or prepare for the effects of potential changes. No reasonably attentive member of society, even if she loses out in the democratic process, will be blindsided by its effects.18 1.1.2 Property Some commentators have interpreted Rawls’s right to personal property as a purely procedural right that would not justify ensuring that individuals can continue owning and using particular objects, while others interpret the right to personal property as protecting only a decent minimum.19 Neither of these interpretations justify special protection against downward mobility. The right to personal property will only justify protection against downward mobility if interpreted to protect the use and possession of all the personal property one happens to have. Even such a maximal understanding of the right, however, 14 Rawls, A Theory of Justice, 207; ibid., 51. 15 On this point, see, for instance, Christine Swanton, ‘‘Is the Difference Principle a Principle of Justice?’’ Mind 90 (1981): 415–421, at p. 418. 16 Ibid. at 51–52. 17 See, for example, Rawls, A Theory of Justice, at 241. I thank Samuel Freeman for helping me to see this point. 18 On this point, see also Jeremy Waldron, The Rule of Law and The Measure of Property (Cambridge: Cambridge University Press, 2012), p. 36–41. 19 For the procedural interpretation, see H.L.A. Hart, ‘‘Rawls on Liberty and its Priority,’’ University of Chicago Law Review 40 (1973): 534–555, at p. 540; Jeremy Waldron, ‘‘Nozick and Locke: Filling the Space of Rights,’’ Social Philosophy and Policy 22 (2005): 81–110, at p. 84; for the minimal interpretation, see Samuel Freeman, ‘‘Capitalism in the Classical and High Liberal Traditions,’’ Social Philosophy and Policy 28 (2011): 19–55, at p. 3. G. Persad 123 cannot justify protecting individuals against downward mobility with respect to future income or consumption. Even if expectations of continued employment or receipt of benefits can constitute a sort of property, they do not constitute personal property whose loss would undermine individuals’ independence and integrity. Nor would even the most expansive understanding of Rawlsian personal property protect expectations of receiving income from its use or rental.20 There is no personal property right to sell coal that one mines, for instance, even if the coal comes from one’s own back yard. Even a maximally broad Rawlsian right to personal property protects only the use and possession of personal property—it does not create an ironclad entitlement to all fruits of that use of personal property. Such a distinction between personal property and its fruits does not rest on any mysterious distinction between productive property and other property, but rather on the familiar distinction between a right to possess something and a right to the proceeds of that thing’s use. 1.2 Fair equality of opportunity Rawls’s concept of fair equality of opportunity requires ‘‘not merely that public offices and social positions be open in the formal sense, but that all should have a fair chance to attain them,’’ where the content of a ‘‘fair chance’’ involves there being ‘‘roughly the same prospects of culture and achievement for those similarly motivated and endowed.’’21 This idea might be employed to justify special protection against downward mobility. Imagine, for instance, that AUTOMATED TRUCKING worsens the job prospects of a truck driver compared to those of an equally motivated and endowed train operator. Protecting the truck driver against downward mobility—for instance, via special hiring preferences for truck drivers— may seem consistent with and even required by fair equality of opportunity. There are two problems with this argument. First, many interpret Rawlsian fair equality of opportunity as only requiring a ‘‘moment of equal opportunity’’ after which individuals’ opportunities may diverge.22 On this interpretation, as long as the two drivers’ prospects were equal at the moment of equal opportunity, differences in opportunity later on do not violate fair equality of opportunity. Second, special protection against downward mobility, even though it situates the truck driver and train operator similarly, gives the recently unemployed truck driver a difficult-to-justify advantage over others who are similarly motivated and endowed, such as immigrants, recent graduates, and those currently in lower-paid positions. Fair equality of opportunity may also appear to justify special protection against downward mobility on the basis that the talents and skills that current workers 20 Contrary to James W. Nickel, ‘‘Economic Liberties,’’ in The Idea of Political Liberalism: Essays on Rawls, eds. Victoria Davion and Clark Wolf (Lanham: Rowman and Littlefield, 2000): 155–175, at p. 166. 21 Rawls, Justice as Fairness, pp. 43–44. 22 See the discussion in Clare Chambers, ‘‘Each Outcome Is Another Opportunity: Problems with the Moment of Equal Opportunity,’’ Politics, Philosophy, and Economics 8 (2009): 374–400. Downward mobility and Rawlsian justice 123 acquired in the course of employment support giving them preference for positions that would use those talents. Rawls observes that ‘‘the reasons for requiring open positions are not solely, or even primarily, those of efficiency,’’ but rather that, without fair equality of opportunity, some people would be ‘‘debarred from experiencing the realization of self which comes from a skillful and devoted exercise of social duties’’ and ‘‘would be deprived of one of the main forms of human good.’’23 Such considerations might seem, for instance, to support funding job retraining programs for the recently unemployed rather than funding programs—such as elementary education—that serve the not-yet-employed. However, current workers’ interest in self-realization cannot justify protecting them against downward mobility at the expense of those who are seeking to begin their involvement in social cooperation. Doing so would violate Rawls’s admonition that social institutions should not ask already disadvantaged individuals ‘‘to accept still lower prospects of life for the sake of others.’’24 As such, although our interest in self-realization helps justify the fair equality of opportunity principle, that principle—as an equality principle—prioritizes giving each person equal access to self-realization over helping the already self-realized become even more so. Though the fair equality of opportunity principle might support state-sponsored efforts to ensure each citizen access to some form of gainful employment, it cannot support efforts to ensure that workers currently occupying particular positions remain in those positions over time. A related attempt to justify special treatment appeals to Rawls’s idea that society constitutes a ‘‘system of cooperation.’’ This argument makes the case that individuals are entitled to their present jobs, because their jobs are the way they participate in the system of cooperative activity—one’s job might be regarded as one’s ‘‘place in the cooperative scheme.’’25 This objection, however, conflates the (correct) claim that each person is entitled to some place in the cooperative scheme with the (mistaken) one that each person is entitled to maintain the same place in the cooperative scheme over time. Fair equality of opportunity justifies efforts to combat unemployment, which cuts some individuals off entirely from participation in the scheme of social production, even if allowing higher rates of unemployment would increase the consumption enjoyed by the worst-off members of society.26 Combatting unemployment, however, does not require maintaining individuals in their current positions; it only requires that each person be afforded an opportunity to contribute in some way. 23 Rawls, A Theory of Justice, p. 73. 24 Ibid., p. 155. 25 Rawls, A Theory of Justice, p. 410. 26 Cf. Robert S. Taylor, ‘‘Self-Realization and the Priority of Fair Equality of Opportunity,’’ Journal of Moral Philosophy 1.3 (2004): 333–347, at p. 338. G. Persad 123 1.3 The difference principle Downward mobility would clearly violate the difference principle if it directly worsened the worst-off positions in society. Buchanan attempts to justify efforts to prevent downward mobility on this basis: [T]he prospects of the worst off include their prospects of ascending to higher positions, of enjoying the benefits of those positions, and of being able to continue to enjoy those benefits. Maximizing their expectations, then, will require taking into account the stability of institutional arrangements, since liability to future disruptions decreases their present expectations, other things being equal.27 1.3.1 Direct effects Downward mobility would violate the difference principle if it directly worsened the worst position with no compensating indirect effects. Austerity policies that lower the income of individuals occupying the worst positions in society without indirectly compensating for that lowering, for instance, clearly violate the difference principle. However, downward mobility plays no essential part in this violation: the aftermath of a change that worsens the position of the worst-off is no more objectionable than the failure to remedy an equally bad and easily remediable status quo. In later work, Rawls further clarifies that ‘‘the least advantaged are by definition those who are born into and who remain in that group throughout their life.’’28 This definition of the least advantaged undermines Buchanan’s claim that the worst off benefit from policies that protect against downward mobility. Because the least advantaged group comprises only individuals who never move up into a higher group, that group will never directly benefit from policies that protect those who have risen against dropping back down. While the least advantaged have reason to reject a policy that irrationally or arbitrarily makes individual holdings insecure, they have nothing to lose, and much to gain, from an approach that regards protection against downward mobility as subordinate to improving the holdings of the least advantaged. 1.3.2 Indirect effects More interesting are policies that impose downward mobility on some better-off individuals while having neutral or even positive direct effects on the worst position. Examples might include INFLATION and PHYSICIAN PAYMENTS, which raise wages and lower health care costs even while reducing the economic position of physicians and creditors. Determining the compatibility of such changes with the 27 Buchanan, ‘‘Distributive Justice and Legitimate Expectations,’’ 423–424. 28 John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge: Harvard University Press, 2001), p. 364. Downward mobility and Rawlsian justice 123 difference principle requires assessing their indirect effects on the social and economic position of the worst-off group in society. Buchanan believes that the difference principle could protection against downward mobility for the better-off because of the indirect benefits of doing so for the worst-off: [T]he knowledge that institutional arrangements were liable to revision at any time, as a result of direct application of the difference principle, might itself undermine individual security to such an extent that expectations in general, including the expectations of the worst off, were diminished.29 Assessing the indirect benefits about which Buchanan speculates would require an empirical, social-scientific investigation that is beyond our scope here. However, it is worth considering what the upshots of such social science would be. Social science can help us move from normative ideals, such as the difference principle, to policy conclusions in two ways. First, it can determine whether the possibility of downward mobility truly does exert a chilling effect on the choices of the better-off. Even in a world where social and legal arrangements were ironclad and unchanging, individual expectations would remain pervasively vulnerable to other sources of disappointment. For instance, after taking out a loan, a surgeon might suffer a disability or acquire caregiving responsibilities that make a career in surgery impossible. Yet the possibility of these disruptions does not dissuade individuals from pursuing careers in surgery; it is therefore not obvious that disruptions caused by institutional changes will do so. Second, social science can tell us about the causal pathways by which insecure expectations for the better-off translate into worse circumstances for the worst-off. Such information can help in normatively assessing who is culpable for the worsened situation of the worst-off. For instance, if the least advantaged are suffering because of a policy instituted that frequently seizes surgeons’ cars without warning in order to transfer the proceeds to the least advantaged, the policy would be culpable—surgeons cannot help the fact that they need reliable transportation to do their jobs effectively. In contrast, if the least advantaged are suffering because surgeons refuse to work unless guaranteed that their pay will remain the same, surgeons, rather than the policy, are culpable, because surgeons do not require the maintenance of their current economic status in order to do their jobs. There is a well-developed literature that attempts to identify when workers’ claims to economic incentives are objectionable.30 Demands that institutional arrangements not be changed raise similar issues to demands for wage incentives, and may be amenable to a similar analysis.31 Most importantly, even where the difference principle, because of indirect effects, justifies special protection against downward mobility, this special 29 Buchanan, ‘‘Distributive Justice and Legitimate Expectations,’’ 423–424. 30 For example, Joshua Cohen, ‘‘Taking People as They Are?’’ Philosophy & Public Affairs 30.4 (2001): 363–386. 31 Cohen describes the aim of preserving one’s current privileges in order to maintain social distance between oneself and those worse off as much more objectionable than a simple desire to gain in absolute terms. Ibid. at pp. 369–371. G. Persad 123 protection is not provided for the sake of those it protects, but the sake of the worst off. Were social science to conclude that protections against downward mobility did not optimize the position of the worst-off, the case for these protections would collapse. As such, any effort to ground protection against downward mobility in the difference principle differs fundamentally from a strategy that appeals to the basic liberties or fair equality of opportunity. The difference principle will never regard the economic status of the better-off as inviolable; at most, it will protect their economic status insofar as such protection happens to further the interests of the worst-off. 2 Downward mobility and Rawlsian concepts 2.1 Legitimate expectations Nien-hê Hsieh interprets Rawls’s concept of legitimate expectations as justifying special protection for those who experience downward mobility due to social change. He does so via the example I called PHYSICIAN PAYMENTS: Betty is a medical student in the United States who borrows $100,000 to cover the cost of her medical training with the expectation that she will be able to repay the loan once she has entered into private practice as a surgeon. As a surgeon she is legally entitled to receive the salary that will allow her to repay the loan, but at the time of taking out the loan she is not legally entitled to the prospect of becoming a surgeon. Now suppose that the government institutes a national health care system in which the amount that doctors can earn is substantially diminished relative to what they did prior to the change in the health care system.32 Hsieh asserts that ‘‘there is a sense in which fairness demands that Betty’s expectation, at least with respect to her ability to repay the loan, be fulfilled,’’ and that ‘‘[h]er expectation of being able to repay the loan can be understood as a legitimate expectation, even though she was never legally entitled to the prospect of becoming a surgeon.’’33 Betty’s case may arouse our sympathy. But I disagree with Hsieh that considerations of fairness entitle Betty to have her expectations met, because her expectations, though strongly held, are not legitimate. Legitimate expectations cannot arise purely through custom.34 The new health care system must be consistent with the basic liberties and fair equality of opportunity, and must maximize the position of the worst off. It is easy to see how the new health care system Hsieh describes would be consistent with the difference principle: imagine 32 Hsieh, ‘‘Moral Desert, Fairness and Legitimate Expectations in the Market,’’ p. 103. 33 Ibid., p. 103. Hsieh also states, at p. 104, that Betty’s ‘‘expectations are legitimate… because they arise within the context of following institutionally specified rules.’’. 34 See Rawls, A Theory of Justice, p. 252. Downward mobility and Rawlsian justice 123 that, for instance, the money saved by paying physicians less would permit greater access to medicines or lower out-of-pocket costs for the most disadvantaged patients. Refusing to implement the new system because of its effects on Betty’s expectations would impose greater costs on the worst-off members of society, and the government would therefore violate the difference principle—and hence act unjustly—were it to fulfill her expectations. Betty’s expectations thus cannot be legitimate. Approaching Betty’s case through the lens of contract theory helps clarify why her expectations lack normative force. When private citizens contract with one another, they accept that certain ‘‘escape conditions’’ established in contract law— such as mistakes of fact or law, impossibility or impracticability of performance, or substantive unconscionability—could release the parties from their legal duties to perform. Analogously, an individual receiving a promise from the state in a Rawlsian society cannot expect that the promise be kept come what may. Instead, a Rawlsian state’s contracts with private parties include a moral, rather than legal, ‘‘escape condition’’: there is no obligation to fulfill the expectations of private parties, even expectations the state has encouraged, in cases where doing so would be inconsistent with a principle of justice. A system of rules must be just in order for the expectations it authorizes to be legitimate.35 The idea that rights or duties contain an ‘‘escape condition’’ is by no means unique to Rawls’s theory. Another example is what Robert Nozick calls the ‘‘Lockean proviso,’’ which prohibits anyone from appropriating property in a way that does not leave ‘‘enough and as good…in common for others.’’36 As Nozick observes, the Lockean proviso will sometimes disrupt property-holders’ expecta- tions: even if a water-hole owner could not have foreseen all other water-holes drying up, his expectation of unlimited profits from the water hole goes beyond what his property right can support.37 Because of the structure of Rawls’s theory of justice, in particular that of the difference principle, an escape condition will much more frequently come into play in Rawls’s theory than in Nozick’s. The Lockean proviso is a satisficing principle: it merely requires parties to a contract to leave enough for others. In contrast, the difference principle—though it plays a structurally parallel role to the Lockean proviso—is an optimizing principle: it requires that the worst position be made as good as possible. Because it is an optimizing principle, the difference principle typically leaves no spare resources for the fulfillment of contracts. A Rawlsian state’s contractual commitments will therefore only be relevant when the principles of justice are neutral between two alternatives. If fulfilling Betty’s expectations would have no net impact on the worst-off position, the state should fulfill her expectations for her sake. But if fulfilling them would hurt the worst-off, 35 Ibid., p. 207. 36 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 175–176. 37 Ibid., p. 180. G. Persad 123 the state should not fulfill her expectations.38 And if fulfilling them would lead to a better position for the worst off, the state should fulfill them, but for the sake of the worst-off rather than for her sake. Perhaps Betty’s claims could be given slightly more purchase by also treating them as relevant in situations where we are radically uncertain which policies will optimize the worst position, or where we regard two policies as on a par—rather than identical—with respect to their effects on the worst position. But I doubt such a revision would extend her claims’ reach to many more cases. What I have said is fully consistent with our regretting that Betty’s expectations go unfulfilled, and even with our apologizing to Betty for her having to bear the brunt of what we do. But we can regret an unavoidable injury, and apologize for it, while recognizing that justice requires it. This would be clear in a case where fulfilling Betty’s expectations required violating someone’s bodily integrity or depriving them of their right to vote—in such a case, though we might regret having to upset Betty’s expectations, we would not treat Betty’s expectations as overriding those important interests. Indeed, if Betty possesses the sense of justice that Rawls posits the citizens of a just Rawlsian state would, she would not press her claims when their fulfillment would be inconsistent with the fulfillment of principles of justice. She would regard demanding that she be paid what she had originally expected as analogous to demanding the enforcement of an unconscionable contract. Even if the contract might have seemed unexceptional when made, she recognizes that the needs of the worst-off now override the fulfillment of her expectations. At bottom, Hsieh’s and others’ invocation of legitimate expectations as limits on the pursuit of justice reflects an implicit rejection of the maximizing force of the difference principle, and potentially the fair equality of opportunity principle as well, in favor of similar satisficing principles: a ‘‘decent minimum’’ or ‘‘sufficiency of opportunity’’ principle. If fulfilling Betty’s expectations meant violating someone’s bodily integrity or abrogating her right to vote, the plausibility of the escape condition would be obvious. But that fulfilling Betty’s expectations would fail to maximize the worst position, or would prevent the opportunities of those similarly talented and motivated from being truly equal, may not motivate the escape condition’s plausibility as fully. Rawls discusses weaker distributive principles such as the decent minimum principle in his later work, where he suggests that the satisficing analogues of the difference principle and fair equality of opportunity are constitutional essentials, whereas his original principles themselves—while still principles of justice—are not constitutional essentials: While some principle of opportunity is a constitutional essential—for example, a principle requiring an open society, one with careers open to talents (to use the eighteenth-century phrase)—fair equality of opportunity 38 See Rawls, A Theory of Justice, 68 (‘‘A scheme is unjust when the higher expectations, one or more of them, are excessive. If these expectations were decreased, the situation of the least favored would be improved.’’). Downward mobility and Rawlsian justice 123 requires more than that, and is not counted a constitutional essential. Similarly, although a social minimum providing for the basic needs of all citizens is also a constitutional essential, the difference principle is more demanding and is not so regarded.39 In a society that adopts the satisficing alternative to Rawls’s original principles (the careers-open-to-talents principle of opportunity, or the decent minimum principle of distributive justice), the state’s contractual commitments will more often justify compensation rather than mere apology. However—as the earlier example of the Lockean proviso indicates—these alternative principles will still sometimes conflict with contractual duties. Buchanan agrees with me that, within Rawlsian justice, principles of justice constrain what counts as a legitimate expectation. But, unlike me, Buchanan regards this as objectionably demanding: [A]s previously just Rawlsian basic structures become unjust instantaneously in the light of new information about how to maximize the benefit of the worst off, so previously legitimate Rawlsian expectations lose their legitimacy just as instantaneously.40 Buchanan then considers two examples where expectations lose legitimacy— including one, almost identical to Hsieh’s, that involves the disrupted expectations of healthcare workers—and goes on to assert that ‘‘the strongest grievance of a person who is disadvantaged by such institutional changes is not simply that his wants have been thwarted. His functioning as a rational planner and executor of long-range plans has been undercut by his society’s attempts to continue to satisfy the difference principle.’’41 Buchanan, however, simply describes prevailing expectations as ‘‘legitimate’’ without explaining why these expectations are normatively legitimate, rather than merely strongly held, and without justifying his claim that disrupted expectations render planning impossible. An individual in a Rawlsian society must be prepared to adjust her plans in response to the demands of justice: such willingness to adjust one’s plans is part of having a sense of justice. Functioning as a rational planner does not plausibly require the ability to perfectly predict one’s future occupation and holdings, or even to do so within a narrow range.42 Although a just Rawlsian society offers no assurance that individuals will enjoy (or suffer) their current material position come what may, it provides the more normatively important assurances of equal basic liberties, fair equality of opportunity to compete for 39 Rawls, Justice as Fairness, pp. 47–48. 40 Buchanan, ‘‘Distributive Justice and Legitimate Expectations,’’ p. 421. 41 Ibid. See also the similar claim in Joel Feinberg, ‘‘Rawls and Intuitionism,’’ in Norman Daniels, Reading Rawls (Stanford: Stanford University Press, 1989), 117. Feinberg complains that ‘‘[t]o change the rules in the middle of the game, even when those rules were not altogether fair, will disappoint the honest expectations of those whose prior commitments and life plans were made in genuine reliance on the continuance of the old rules.’’. 42 Andrei Marmor, ‘‘The Rule of Law and Its Limits,’’ Law and Philosophy 23 (2004): 1–42, at p. 23. G. Persad 123 positions of advantage, and a social minimum of primary goods. Such assurances are amply sufficient for the pursuit of a rational plan of life. Indeed, institutional reforms designed to better realize justice can not only be consistent with rational planning, but also enrich the goodness of a life. Ronald Dworkin suggests what he calls the ‘‘challenge model’’ of a good life, on which living a good life requires appropriately grappling with the challenges of living well, rather than amassing some sum of goods or pleasures. On the challenge model, ‘‘a good life is a life suited to the circumstances that justice requires,’’ which entails that life is enriched rather than constrained by the restriction that one may use only the resources that one can justly claim: It would be bizarre to declare, as our considered moral judgment, that it is appropriate for people each to have a fair share of resources, defined in some particular way, and not also to think, in making an ethical judgment about what circumstances we should treat as appropriate in deciding what life would be good for us, that fair circumstances, so defined, are the appropriate ones…. We must set the resource parameters of a life well lived, so far as we can, so that these respect our sense of justice.43 Dworkin goes on to suggest that someone’s life goes worse, rather than better, to the extent that he is better-off economically than justice allows. This factor could conceivably be counterbalanced by others: for Dworkin, unlike Rawls, justice is not prior to goodness. Nor is it an inescapable requirement of a good life. Rather, justice rather is an important, but overridable, constituent of a good life. Still, it would take an extraordinary circumstance for the goodness of enjoying great wealth to outweigh the badness of a life of injustice. 2.2 Life planning and the Aristotelian principle Where the realization of principles of justice conflicts with individuals’ particular plans of life, Rawls’s account requires that the plans and not the principles give way. Plans of life fall within the theory of the good, not the theory of the right, and a Rawlsian society prioritizes the right (justice) over the good (life plans). So long as an individual remains able to pursue some rational plan of life after her original expectations are disrupted, her expectations do not restrict a Rawlsian society’s efforts in pursuit of justice. Furthermore, this conclusion need not be as burdensome as it may initially appear. In a Rawlsian society, ‘‘each individual has a rational plan of life,’’44 and such plans enable individuals to achieve happy lives.45 Social and institutional change may threaten individuals’ ability to carry plans through. While institutional change can threaten good fortune, it can also free individuals from bad fortune. But Rawls—in contrast with the priority he gives to raising the worst-off up in his theory 43 Ronald Dworkin, Sovereign Virtue (Cambridge: Harvard University Press, 2002), p. 265. 44 Rawls, A Theory of Justice, p. 80. 45 Ibid., p. 359. Downward mobility and Rawlsian justice 123 of the right—suggests that the preservation or increase of good fortune matters as much to a successful life than the avoidance of bad fortune.46 According to the Aristotelian Principle, ‘‘other things equal, human beings enjoy the exercise of their realized capacities (their innate or trained abilities), and this enjoyment increases the more the capacity is realized, or the greater its complexity.’’47 This principle will tend to make downward mobility more painful, because once one has enjoyed the pleasures of exercising superior skill, the exercise of more basic skills will seem less satisfying. However, life plans are subordinate to the realization of justice. Rightness (the fulfillment of principles of justice) has priority over goodness (life plans): ‘‘Our way of life, whatever our particular circumstances, must always conform to the principles of justice that are arrived at independently.’’48 While plans of life may be relevant in cases where the principles of justice are in equipoise between two alternatives, just as expectations can be relevant in such cases, the principles of justice override the plans of individuals whenever the two conflict. Though downward mobility may temporarily frustrate individuals, other remarks of Rawls’s suggest that downward mobility is not as onerous as it might appear, because individuals are capable of adapting to institutional change: They do not think of themselves as inevitably bound to, or as identical with, the pursuit of any particular complex of fundamental interests that they may have at any given time, although they want the right to advance such interests (provided they are admissible). Rather, free persons conceive of themselves as beings who can revise and alter their final ends and who give first priority to preserving their liberty in these matters.49 Rather than choosing to pursue inflexible plans that require the accumulation of specific, costly material goods, individuals in a Rawlsian society will pursue more malleable plans that incorporate values compatible with the realization of principles of justice—they will seek, for instance, ‘‘meaningful work and social cooperation,’’ rather than developing attachments to lives as highly paid surgeons or bankers.50 Even if swings up and down upset individuals’ plans, such swings are not properly described as catastrophic because they do not deprive individuals of basic liberties, equality of opportunity, or access to primary social goods. Indeed, as the discussion of Dworkin’s ‘‘challenge model’’ suggests, dealing constructively with the challenge that social and economic change presents may be part of what makes a life good. Individuals in a Rawlsian society will also choose plans that keep options open and allow for long-term revision. Those who can only pursue a single plan of life 46 Ibid., pp. 369–370. 47 Ibid., p. 374. 48 Ibid., p. 394–395. 49 Ibid., p. 131–132. 50 Ibid., p. 373. G. Persad 123 will be exceedingly rare—though not entirely absent.51 Furthermore, individuals should be aware not only that their personal plans may require revision, but also that social institutions may change in order to better realize principles of justice. (The possibility of institutional revision is clear from the opening page of A Theory of Justice, where Rawls asserts that ‘‘laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’’52). Recognizing the priority of right over good also indicates that a Rawlsian society will limit certain forms of institutional change, though it will do so for the sake of justice rather than for the sake of preventing downward mobility. For instance, if science suggested that a technical innovation—such as a new method of extracting fossil fuels—will likely lead to long-term economic losses, a Rawlsian society would resist that innovation, though for the sake of society as a whole rather than for the sake of protecting those whose jobs that innovation would threaten. A Rawlsian society has no intrinsic bias toward change or stability—it neither preserves the status quo nor praises its disruption—but only a bias toward justice. Ultimately, it is difficult to believe that institutional change undermines workers’ status as rational agents. Rather, individuals can form plans of life compatible with a changing economy, secure in the knowledge that they enjoy basic liberties, equality of opportunity, and a decent social minimum. 2.3 Distribution, allocation, and pure procedural justice Rawls defines allocative justice, which is is inappropriate for goods produced via social cooperation, as the ‘‘problem of how a given bundle of commodities is to be distributed, or allocated, among various individuals whose particular needs, desires, and preferences are known to us, and who have not cooperated in any way to produce these commodities.’’53 In contrast, distributive justice focuses on background institutions and does not directly provide answers to questions about which individuals should hold which resources. It might therefore seem that distributive justice prohibits the imposition of downward mobility that disturbs individual holdings in service of justice. However, although distributive justice precludes the direct employment of Rawlsian principles of justice to determine which individuals should receive resources in specific situations, legislators clearly are supposed to apply Rawlsian principles when making policy choices about free trade, responses to climate change, or taxation.54 Applying the difference principle, for example, will entail the design of social institutions that inevitably disturb individual holdings. Understanding this defuses David Schmidtz’s complaint that the need for ‘‘adjustments in the basic structure’’ vitiates Rawls’s claim that the difference principle does not require continuous and capricious interference with private 51 Ibid., p. 380. 52 Ibid., p. 3. 53 Rawls, Justice as Fairness, p. 50. 54 Rawls, A Theory of Justice, p. 175. Downward mobility and Rawlsian justice 123 transactions.55 While Schmidtz is right that a Rawlsian society would likely indeed engage in continuous interference with people’s transactions, at least if we follow Schmidtz in understanding any societal decision that affects the value of individual holdings as an interference, it would not engage in capricious interference. To see why, return to INFLATION. A Rawlsian society could, and indeed likely would, adopt a monetary policy, which involves taking actions that affect rates of inflation as well as the exchange rate of its national currency. The worth of individuals’ holdings would then be subject to continuous adjustment as inflation and exchange rates vary over time, and these adjustments would be justified—and consistent with pure procedural justice—insofar as they optimally realized the principles of justice.56 INFLATION indicates that continuous interference is not obviously objectionable as long as it is not capricious interference. And a Rawlsian constitutional democracy would base its fiscal policy not on the caprice of unaccountable administrators but on legislative, executive, and judicial decisions that must in turn be justified in a democratic process by appeal to public reasons and principles of justice. A Rawlsian society’s implementation of monetary policy, for instance, would not be carried out on an allocative, transaction-by-transaction basis, but rather at the level of the basic structure, which ensures that individuals are subject to the same laws and are free from arbitrary and unaccountable power. Indeed, Rawls argues that efforts to protect particular individuals and groups would hamper, rather than advance, the achievement of justice.57 Pure procedural justice, as Rawls understands it, requires us to focus on the benefits and burdens of institutional change from the point of view of society in general, rather than considering the specific impacts on each individual the policy burdens or benefits. While individual impacts matter when ensuring that policies do not violate basic liberties, if some policy is broadly fair—if it best accords with fair equality of opportunity, the difference principle, and the basic liberties—the burdens it imposes on specific individuals cannot justify refusing to adopt that policy or restricting its effects. Rawlsian justice therefore has adequate resources to answer Schmidtz’s concern about ‘‘‘necessary adjustments’ that signal to citizens that their labor is a political football and they are to that extent governed by men, not law.’’58 Although policy choices in a Rawlsian democracy may subject individuals to downward mobility, these choices reflect the effects of legitimate laws rather than arbitrariness or caprice. 55 David Schmidtz, Elements of Justice (New York: Cambridge, 2005), p. 200. 56 For different approaches to the reconciliation of redistribution and pure procedural justice, compare Joshua Cohen, ‘‘Pluralism and Proceduralism,’’ Chicago-Kent Law Review 69 (1993), 589–618, at p. 597 n. 44, with Jeremy Waldron, ‘‘The Rule of Law in Contemporary Liberal Theory,’’ in G.W. Smith (ed.) Liberalism: Rights, Property and Markets (New York: Routledge, 2002), p. 103. 57 Rawls, A Theory of Justice, at p. 76. 58 Schmidtz, Elements of Justice, p. 200. G. Persad 123 Hayek advances a different argument based on pure procedural justice, which makes the case that if social arrangements and announced systems of public rules were just in the past, they remain just later on regardless of their consequences.59 On this view, rules and institutions that are just when formed never need to prove their ongoing compatibility with justice: rather, they inherit their current justice from their justice at inception. Such an understanding of the justice of rules and institutions would parallel Nozick’s view that distributions are just in virtue of their history rather than in virtue of how they distribute resources among individuals.60 This understanding of justice not only appears implausibly rigid, but fails as an interpretation of Rawls’s view. In A Theory of Justice, Rawls explicitly asserts that adjustments are required even under ideal circumstances.61 Rawls believes that a well-ordered society can be stable even while updating its basic structure and public rules in order to maintain or better realize the principles of justice in light of newly discovered facts and changing circumstances.62 A rule’s being initially just, for Rawls, does not render it eternally just. As such, in a Rawlsian society, individuals should form their social and economic expectations with the knowledge that the currently prevailing rules are subject to adjustment in service of justice. A society in which the basic structure never required adjustment would not be more just than a Rawlsian ideal society. Rather, it would be beyond justice, and outside the scope of Rawls’s discussion. 3 Conclusion I have argued that, in an ideal Rawlsian society, individuals would willingly accept the more valuable guarantee that they will be protected by the principles of justice in exchange for sacrificing the less valuable guarantee that their holdings will not be disturbed by downward mobility. This argument suggests a direction for further research, focused on how downward mobility should be addressed in a nonideal society where the principles of justice are not fully honored.63 Though Rawls explicitly states that concerns about disrupted expectations do not justify resisting a move from nonideal to ideal circumstances,64 the treatment of downward mobility under circumstances that will remain nonideal regardless of how downward mobility is addressed poses more complex questions. 59 See Waldron, ‘‘The Rule of Law in Contemporary Liberal Theory,’’ 103, and more generally Andrew Lister, ‘‘The ‘Mirage’ of Social Justice: Hayek Against (and for) Rawls,’’ Critical Review 25 (2013): 409–444. 60 Nozick, Anarchy, State, and Utopia, 150–51. 61 Rawls, A Theory of Justice, p. 285. 62 Ibid., p. 401. 63 Cf. Dworkin, Sovereign Virtue, p. 265 (‘‘Once we accept that the best life means a life responding well to the right circumstances, and that the right circumstances are circumstances of justice, we become aware of how difficult it is to lead anything like the right life when circumstances are far from just.’’). 64 Rawls, Collected Papers, p. 251. Downward mobility and Rawlsian justice 123 Where social change cannot bring about justice but can only achieve an improvement in nonideal circumstances, some argue that individuals may allowably regard the burdens of downward mobility as counting against, though not invariably prohibiting, changes that would make social arrangements more just.65 Rawls himself observes that principles of justice may not apply in the same way—or at all—in nonideal contexts, which indicates that the balance between Rawlsian principles and the prevention of downward mobility might, in nonideal contexts, tilt toward the latter.66 On the other hand, under nonideal circumstances, individuals frequently owe the holdings they hope to protect to their own, or others’, failure to comply with the principles of justice.67 For this reason, Rawls suggests elsewhere that the imposition of social change may be acceptable under nonideal circum- stances if it moves society toward more just (though still nonideal) arrangements that improve conditions for the least advantaged.68 Ultimately, because nonideal conditions weaken individuals’ claims to their current circumstances while also weakening the guarantees they would receive after social change, assessing the proper treatment of downward mobility under nonideal conditions requires further analysis. This project’s discussion of downward mobility within ideal theory represents one starting point for such analysis, though there is no straightforward algorithm for how movement away from ideal theory affects the applicability of arguments originally developed in an ideal-theory context. In sum, an ideal Rawlsian society countenances social and economic change, even change that imposes downward mobility on individuals, when that change furthers the achievement of justice. However, that Rawls’s theory descriptively does not protect against downward mobility may seem like a reason to amend Rawlsian justice to add an additional principle that supports shielding individuals from downward mobility.69 My project, however, has been to argue not only that Rawlsian justice excludes special protection against downward mobility, but also that its choice not to do so is normatively attractive. I conclude by reiterating the latter point. Beliefs that Rawlsian justice must be amended to protect individuals against downward mobility stem ultimately from two misplaced fears—the fears that downward mobility will be imposed through despotism and lead to destitution. But Rawls’s principles of justice are amply sufficient to achieve a just society; an additional principle protecting against downward mobility would prove counter- productive and excessively conservative. 65 Marcus Arvan, ‘‘First Steps Toward a Non-Ideal Theory of Justice,’’ Ethics and Global Politics 7 (2014): 95–117, at pp. 104–107; Leslie Pickering Francis, ‘‘Age Rationing Under Conditions of Injustice,’’ in Rosamond Rhodes et al. eds., Medicine and Social Justice (Oxford: Oxford University Press, 2002), p. 274. 66 Rawls, A Theory of Justice, pp. 215–216. I am grateful to an anonymous referee for this reference and for prompting me to attend more closely to the case of downward mobility within ideal theory. 67 See Christopher Bertram, ‘‘Cosmopolitanism and Inequality,’’ Res Publica 12 (2006): 327–336, at p. 334. 68 See Rawls, A Theory of Justice, p. 218. 69 Andreas Føllesdal, ‘‘Union Citizenship: Unpacking the Beast of Burden,’’ Law and Philosophy 20 (2001), 329. G. Persad 123 The fear of despotism equates downward mobility with change imposed for reasons that are at best arbitrary and at worst self-serving and corrupt.70 But a Rawlsian constitutional democracy already has safeguards that prevent the imposition of policies for arbitrary, self-serving, or corrupt reasons. Further, to the extent that classical liberal critics like Schmidtz are concerned that these safeguards are insufficient to forestall the improper deployment of power, focusing concern on policies that impose downward mobility seems misguided. Such a focus would leave those attempting to form new plans at the mercy of arbitrary regulations while those with longstanding, settled expectations are kept secure against abuses of power. Meanwhile, the fear of destitution equates downward mobility with a total dismantling of self-respect and even of rational agency.71 But a Rawlsian society provides ample opportunity for rational planning. Individuals who experience downward mobility can stably and legitimately expect to enjoy a decent social minimum, fair equality of opportunity, and equal basic liberties as they revise their plans and projects in light of new circumstances. Such a society is far preferable to one that exhaustively protects existing plans against any disruption while leaving others without sufficient liberties, opportunities, and resources to even begin making—let alone acting on—plans of their own. Acknowledgements I am grateful to Debra Satz, Joshua Cohen, Eamonn Callan, Mark Kelman, Jorah Dannenberg, Collin Anthony, RJ Leland, Samuel Freeman, Nien-hê Hsieh, Shim Reza, and an anonymous referee at Philosophical Studies for written comments and detailed discussion. Thanks also to audiences at the 2012 National Endowment for the Humanities Summer Seminar on Liberty, Equality, and Justice; the 2012 Harvard Graduate Conference in Political Theory; and the 2014 Ethics and Politics, Ancient and Modern workshop at Stanford University. References Arvan, M. (2014). First steps toward a non-ideal theory of justice. Ethics and Global Politics, 7, 95–117. Bertram, C. (2006). Cosmopolitanism and Inequality. Res Publica, 12, 327–336. Bertram, C. (2012) ‘‘The Problem of Rawlsian Transition,’’ posting to Crooked Timber, August 7, 2012. http://crookedtimber.org/2012/08/07/the-problem-of-rawlsian-transition/. Brown, A. (2012). Rawls, Buchanan, and the legal doctrine of legitimate expectations. Social Theory and Practice, 38, 617–644. Buchanan, A. (1975). Distributive justice and legitimate expectations. Philosophical Studies, 28, 419–425. Chambers, C. (2009). Each outcome is another opportunity: Problems with the moment of equal opportunity. Politics, Philosophy, and Economics, 8, 374–400. Cohen, J. (1993). Pluralism and proceduralism. Chicago-Kent Law Review, 69, 589–618. Cohen, J. (2001). Taking people as they are? Philosophy & Public Affairs, 30(4), 363–386. Cohen, J. (with Seth Resler) (2011). ‘‘Occupation as fairness: What John Rawls would make of the occupy movement,’’ Boston Review (Nov. 17, 2011), http://bostonreview.net/joshua-cohen-seth- resler-john-rawls-occupy-wall-street. Dworkin, R. (2002). Sovereign virtue. Cambridge: Harvard University Press. 70 Hsieh, ‘‘Moral Desert, Fairness and Legitimate Expectations in the Market,’’ 103; Schmidtz, Elements of Justice, 200. 71 Buchanan, ‘‘Distributive Justice and Legitimate Expectations,’’ 425, discusses the ‘‘stability of legitimate expectations so essential to us as rational agents.’’ Downward mobility and Rawlsian justice 123 http://crookedtimber.org/2012/08/07/the-problem-of-rawlsian-transition/ http://bostonreview.net/joshua-cohen-seth-resler-john-rawls-occupy-wall-street http://bostonreview.net/joshua-cohen-seth-resler-john-rawls-occupy-wall-street Feinberg, J. (1989). ‘‘Rawls and Intuitionism’’, in Norman Daniels, Reading Rawls. Stanford: Stanford University Press. Føllesdal, A. (2001). Union citizenship: Unpacking the beast of burden. Law and Philosophy, 20, 313–343. Francis, L. P. (2002). Age rationing under conditions of injustice. In R. Rhodes et al. (Eds.), Medicine and social justice. Oxford: Oxford University Press. Freeman, S. (2011). Capitalism in the classical and high liberal traditions. Social Philosophy and Policy, 28, 19–55. Hart, H. L. A. (1973). Rawls on liberty and its priority. University of Chicago Law Review, 40, 534–555. Hayek, F. A. (1976). Law, legislation, and liberty, Vol. 2: The mirage of social justice. Chicago: University of Chicago Press. Hsieh, N. (2000). Moral desert, fairness and legitimate expectations in the market. Journal of Political Philosophy, 8, 91–114. James, A. (2012). Fairness in practice. New York: Oxford University Press. Lister, A. (2013). The ‘Mirage’ of Social Justice: Hayek Against (and for) Rawls. Critical Review, 25, 409–444. Marmor, A. (2004). The rule of law and its limits. Law and Philosophy, 23, 1–42. Mazie, S. (2011) ‘‘Rawls on Wall Street,’’ The New York Times (October 21, 2011). http://opinionator. blogs.nytimes.com/2011/10/21/rawls-on-wall-street/. Meyer, L. H., & Sanklecha, P. (2011). Individual expectations and climate justice. Analyse & Kritik, 2, 449–471. Nozick, R. (1974). Anarchy, state, and utopia. New York: Basic Books. Paul, E. F. (1981). The just takings issue. Environmental Ethics, 3, 309–328. Rawls, J. (1999). A theory of justice. Cambridge: Harvard University Press. Rawls, J. (2001). Collected papers. In S. Freeman (Ed.). Cambridge: Harvard University Press. Swanton, C. (1981). Is the difference principle a principle of justice? Mind, 90, 415–421. Taylor, R. S. (2004). Self-realization and the priority of fair equality of opportunity. Journal of Moral Philosophy, 1(3), 333–347. Waldron, J. (2002). The rule of law in contemporary liberal theory. In G. W. Smith (Ed.), Liberalism: Rights, property and markets. New York: Routledge. Waldron, J. (2005). Nozick and Locke: Filling the space of rights. Social Philosophy and Policy, 22, 81–110. Waldron, J. (2012). The rule of law and the measure of property. Cambridge: Cambridge University Press. G. Persad 123 http://opinionator.blogs.nytimes.com/2011/10/21/rawls-on-wall-street/ http://opinionator.blogs.nytimes.com/2011/10/21/rawls-on-wall-street/ Downward mobility and Rawlsian justice Abstract Downward mobility and Rawlsian principles The basic liberties The rule of law Property Fair equality of opportunity The difference principle Direct effects Indirect effects Downward mobility and Rawlsian concepts Legitimate expectations Life planning and the Aristotelian principle Distribution, allocation, and pure procedural justice Conclusion Acknowledgements References 
work_hjjbjy7fhvbxtcx7zbwymxwaye	----	389 Уни­вер­зи­тет­у­Бе­о­гра­ду,­Фи­ло­зоф­ски­фа­кул­тет­–­­ Оде­ље­ње­за­фи­ло­зо­фи­ју,­Бе­о­град DOI­10.5937/kultura1754389N ­­­­­­УДК­17­Епикур оригиналан­научни­рад ЕПИ­КУ­РОВ­МО­РАЛ­И­ПРАВ­ДА Са­же­так: Текст ну ди осврт нa епи ку реј ску ети ку aнaлизирaјући је ви ше из сaвремене пер спек ти ве, рaзмaтрaјући формaлне усло­ ве зaхвaљујући којимa предстaвљa етич ку те о ри ју. Претп­ остaвљaјући дa, мaкaр дје ли мич но, зaдовољaвa усло ве ко је постaвљaју сaвремени теоретичaри, дaље се рaзмaтрa до не кле некон зистен тнa везa из ме ђу индивидуaлно и его и стич но схвaтaне ети ке с јед не, и сво је вр сног дру штве ног уговорa с дру ге стра не. Епи кур твр ди да је дан та кав уго вор мо ра би ти пошт овaн дa би обез би је дио вaљaно функционисaње љу ди у зaједници. Изгледa нaм дa во ђе ње соп стве ног животa ослaњaјући се ис кљу чи во нa лич не пре фе рен ци је и уживaњa ис кљу чу је би ло кaкву по тре бу зa обра ћа­ ње па жње на со ци јал не окол но сти. Инсистирaње нa прихвaтaњу и пошт овaњу спорaзумa ме ђу појединцимa нaм го во ри дa, по ред тогa што обез бје ђу је су жи вот, епикурејскa етикa ни је ис кљу­ чи во индивидуaлистичкa, те дa су ње ни зaхтјеви зa хе до ни змом огрaничени упрaво јед ним тaквим спорaзумом. Ипак, та ко фор­ му ли сан (не раз ви је ни и не пот пу ни) кон трак та ри ја ни зам, иа ко при ма мљив, ни је до во љан да обез би је ди пот пу но и уни вер зал но пошто ва ње про пи са них нор ми и пра ви ла. Кључ­не­ ри­је­чи: Епи кур, етичкa теоријa, индивидуaлизaм, фактори, уго вор, по сле ди це, хедонизaм Плaтон­и­Ари­сто­тел­уз­ди­гли­су­ети­ку­до­нaјвишег­фи­ло­ зоф­ског­ знaчaјa,­ те­ се­ нa­ њи­хо­вим­ идејaмa­ ве­ли­ким­ ди­ је­лом­те­ме­ље­све­нaредне­етич­ке­те­о­ри­је,­пa­сaмим­тим­и­ епикурејскa­ етикa.­ Хе­ле­ни­стич­ки­ пе­ри­од,­ кaко­ се­ обич­но­ нaзивa­ рaз­добље­ зaпочето­ освaјaњимa­ Алексaндрa­ Ве­ли­ ког,­ иaко­ фи­ло­зоф­ски­ не­ у­ пот­пу­но­сти­ оригинaлно,­ ипaк­ одсликaвa­извјестaн­про­грес­у­рaзвоју­интелек­туaлне,­по­себ­ но­фи­ло­зоф­ско­етич­ке­ми­сли­тог­ви­ше­рaтничко­освaјaчког­ не­го­уре­ђе­но­демокрaтк­ог­периодa. Епикурејскa­ етикa,­ којa­ нaс­ ов­дје­ нaјвише­ ин­те­ре­су­је,­ умно­го­ме­се­ослaњa­нa­Аристо­телa­и­ње­го­во­рaзумијевaње­ појмa­ „еудaјмоније”­ (εὐδαιμονία).­ Циљ­ (τέλος)­ животa­ је­ идентификовaн­ сa­ сре­ћом,­ што­ предстaвљa­ не­што­ че­му­ ИВАН­НИШАВИЋ 390 ИВАН НИШАВИЋ требa­дa­те­жи­мо­или­не­што­што­требa­дa­до­сег­не­мо.­Без­ обз­ирa­ нa­ то­ штa­ је­ то­ не­што,­ (тј.­ штa­ се­ подрaзумијевa­ под­ сре­ћом­ или­ кaко­ је­ мо­же­мо­ дефинисaти),­ нaмa­ је­ зa­ постизaње­ еудaјмоније­ потребнa­ сaмодовољност­ (αὐτάρκεια),­рaционaлност­(тј.­рaционaлно­уте­ме­љен­кaрaк­ тер)­ и­ емоционaлнa­ снaгa­ и­ стaбилност.­ Кaко­ Епикуровa­ етикa,­мaкaр­дје­ли­мич­но,­прихвaтa­овaкaв­пој­мов­ни­оквир1­ при­рaзмaтрaњу­нaчинa­нa­ко­ји­требa­дa­жи­ви­мо,­преостaје­ нaм­дa­ви­ди­мо­ко­је­су­то,­aко­их­уоп­ште­и­имa,­основ­не­ рaзлике­ ко­је­ ње­го­во­ схвaтaње­ ети­ке­ чи­не­ рaзличитим­ од­ нaведеног­претходникa.­ Нaиме,­по­ред­другaчијег­рaзумијевaњa­појмa­еудaјмоније,­ оно­што­је­рaзличито­је­сте­дa­је­његовa­етикa­егоистичнa­–­­ тј.­ оријентисaнa­ ди­рект­но­ нa­ ин­ди­ви­дуу.­ Под­ овим­ се­ превaсходно­ подрaзумијевa­ личнa­ сaмодовољност­ кaо­ пред­у­слов­ достизaњa­ и­ вођењa­ пријaтног­ животa.­ Ипaк,­ ов­дје­ морaмо­ би­ти­ вр­ло­ пaжљиви,­ јер­ Епи­кур­ успијевa­ дa­ индивидaлну­ ети­ку­ укло­пи­ у­ социјaлне­ окол­но­сти­ тог­ временa.2­ То­ знaчи­ дa­ особa­ поку­шaвa­ дa­ до­сег­не­ добaр­ и­ удобaн­ жи­вот­ зaдовољaвaјући­ соп­стве­не­ зaхтјеве­ зa­ зaдовољством­ и­ пријaтн­остимa,­ aли­ обрaћaјући­ пaжњу­ и­ нa­прилaгођaвaње­или­уклaпaње­у­дру­штве­но­окру­же­ње­и­ поли­тич­ке­при­ли­ке­временa­у­ком­жи­ви.­ Тaко,­ с­ јед­не­ стрaне­ имaмо­ индивидуaлизaм­ или­ егоизaм­ ко­ји­не­ис­кљу­чу­је­социјaлну­ком­по­нен­ту,­a­с­дру­ге­стрaне­ еудaјмонију­ схвaћену­ кaо­ уживaње­ или­ хедонизaм.­ Дa­ би­ успио­ дa­ „уком­по­ну­је”­ егоизaм­ сa­ дру­штве­ним­ жи­во­том­ Епи­кур­ постулирa­ својеврстaн­ спорaзум­ чи­је­ се­ постaвке­ те­ме­ље­ нa­ врлинaмa­ прaвде­ и­ сло­бо­де­ кaо­ и­ ме­ђу­људ­ ским­ интересимa­ и­ ко­ри­сно­сти.3­ „Епикуровa­ етикa­ је­ об­ лик­ хедонизмa­ сa­ сво­јим­ прописимa­ уте­ме­ље­ним­ нa­ дру­ штве­ном­ уго­во­ру­ бaзирaном­ нa­ прaвди­ кaо­ и­ привaтним­ осјећaњем­ пријaтељствa­ кaо­ из­вје­сне­ фор­ме­ ин­трин­сич­ не­ ври­јед­но­сти­ вр­ли­не.”4­ И,­ у­ конaчном,­ циљ­ Епи­ку­ро­ве­ етичке­те­о­ри­је­је­сте­дa­они­ко­ји­је­прaк­тикују­до­стиг­ну­мир­ 1­ „Слу­чај­са­мо­рет­ко­кад­сме­та­му­дром­чо­ве­ку;­ње­го­вим­нај­ве­ћим­и­нај­ ви­шим­ци­ље­ви­ма­упра­вља­и­упра­вља­ће­ра­зум­у­то­ку­чи­та­вог­ње­го­вог­ жи­во­та.”­Ди­о­ген,­Л.­(1979)­Жи во ти и ми шље ња ис так ну тих фи ло зо фа,­ Бе­о­град:­БИГЗ,­X­144.­Ви­дети­та­ко­ђе:­Д.­Л.­X­134.­ 2­ Зна­чај­но­је­све­ври­је­ме­има­ти­на­уму­’рат­не’­окол­но­сти­иза­зва­не­ма­ ке­дон­ским­осва­ја­њи­ма,­ко­ја­су,­из­ме­ђу­оста­лог,­про­у­зро­ко­ва­ла­и­про­ паст­са­ме­иде­је­ан­тич­ког­де­мо­крат­ског­др­жав­ног­уре­ђе­ња,­што­је­умно­ го­ме­ ути­ца­ло­ на­ схва­та­ња­ хе­ле­ни­стич­ких­ ми­сли­ла­ца­ о­ по­ли­ти­ци­ и­ друштвеном­жи­во­ту. 3­ Ви­де­ти:­Д.­Л.­X,­стр.­150–154. 4­ Long,­A.­La­ter­An­ci­ent­Et­hics,­in:­The Ro u tled ge Com pa nion to Et hics,­ed.­ Sko­rup­ski,­J.­(2010),­New­York:­Ro­u­tled­ge,­p.­52. 391 ИВАН НИШАВИЋ (тј.­спо­кој).­Конкрет­ни­је,­спо­кој­ство­ко­је­би­се­огледaло­у­ дви­је­ствaри,­и­то:­(I)­од­су­ство­фи­зич­ких­боловa­(ἀπονία),­с­ јед­не,­и­(II)­потпунa­душевнa­не­у­зне­ми­ре­ност­(ἀταραξία),­с­ дру­ге­стрaне.­ По­ред­нaведеног,­ов­де­ће­мо­се­детaљније­позaбaвити­још­ сa­двa­вaжнa­моментa.­Једaн­се­ти­че­предметa­примaрног­ вредновaњa­у­етич­ким­теоријaмa,­a­дру­ги­нaчинa­нa­ко­ји­је­ мо­гу­ће­по­ми­ри­ти­хедонизaм­сa­дру­штве­ним­уго­во­ром.­Први­ ће­ би­ти­ aнaлизирaн­ у­ оп­шти­јим­ цртaмa,­ док­ ће­ у­ дру­гом­ пaжњa­би­ти­усмјеренa­превaсходно­нa­Епикурa. *** Дa­ли­по­сто­је,­и­aко­по­сто­је,­кaквa­је­природa­рaзлогa­нa­ осно­ву­ко­јих­се­ми­понaшaмо­нa­нaчин­нa­ко­ји­се­понaшaмо,­ ми­сле­ћи­дa­тaко­требa­или­дa­је­тaкво­понaшaње­до­бро­зa­ нaс?­ Потребa­ зa­ опрaвдaвaњем­ соп­стве­них­ (кaо­ и­ ту­ђих)­ поступaкa­ свaкaко­ дa­ потпaдa­ под­ не­ми­нов­но­сти­ ко­је­ би­ свaкa­нормaтивнa­етичкa­теоријa­требaло­дa­обрaзложи­и­ објaсни.­Кaо­што­у­не­ким­сaвременијим­тумaчењимa,­кaкво­ пронaлaзимо­код­Х.­А.­Причaрдa5­(H.­A.­Pric­hard),­рaзл­ози­ зaш­то­не­што­чи­ни­мо­че­сто­ни­су­(ло­гич­ки)­повезaни­сa­оним­ што­чи­ни­мо,­те­је­по­треб­но­пронaћи­кри­те­ри­ју­ме­нa­ко­је­се­ мо­же­мо­осло­ни­ти­при­формулисaњу­од­ре­ђе­них­рaзлогa­кaо­ узрокa­нaшег­понaшaњa,­тј.­дa­тaкве­рaзлоге­схвaтимо­кaо­ прaвилa,­нор­ме­или­обaвезе­ко­јих­се­др­жи­мо.­Иaко,­pri ma fa cie,­питaти­се­тaко­не­што­изгледa­пот­пу­но­тривијaлно,­јер­ се­чи­ни­дa­је­везa­из­ме­ђу­узрокa­нaшег­дјелaњa­нерaскидивa­ с­ последицaмa,­ онa­ ипaк­ ни­је­ тaко­ сaмоочигледнa­ и­ плaузибилнa.­Причaрд,­зaрaд­јaснијег­рaзумијевaњa,­прaви­ aнaлогију­сa­те­о­ри­јом­сaзнaњa,6­нaводећи­дa­је­мо­гу­ће­дa­ ствaри­зa­ко­је­смо­скло­ни­дa­твр­ди­мо­дa­их­поуздaно­знaмо,­ aко­мaло­бо­ље­рaзмислимо,­мо­гу­би­ти­до­ве­де­не­у­сум­њу.­ Стогa­је­по­треб­но­дa­пронaђемо­кри­те­ри­ју­ме,­тј.­прин­ци­пе­ ко­ји­би­нaм­сво­јом­при­мје­ном­гaрaнтовaли­приписивaње­од­ ре­ђе­ном­стaњу­ствaри­поуздaност,­те­би­они­предстaвљaли­ усло­ве­ исти­нито­сти.­ Кaо­ што­ би­ требaло­ дa­ мо­же­мо­ опрaвдaти­нaчин­нa­ко­ји­не­што­знaмо,­тaко­би­требaло­дa­ мо­же­мо­опрaвдaти­и­нaчин­нa­ко­ји­се­понaшaмо,­тј.­прaвилa,­ ду­жно­сти­или­обaвезе­којимa­се­ру­ко­во­ди­мо.­ Рaзлике­ из­ме­ђу­ aнтичких­ и­ сaвремених­ етич­ких­ теоријa­ нaјбоље­долaзе­до­изрaжaјa­кaдa­упо­ре­ди­мо­питaњa­нa­којa­ оне­ поку­шaвaју­ дa­ по­ну­де­ од­го­во­ре.­ Ан­тич­ки­ теоретичaр­ 5­ Pric­hard,­H.­A.­Do­es­mo­ral­phi­lo­sophy­rest­on­a­mi­sta­ke,­in:­Es says and Lec­ tu res,­(1949)­Ox­ford,­Cla­ren­don­Press. 6­ Исто,­стр.­14. 392 ИВАН НИШАВИЋ морaлa­се­питa:­„Ко­ји­људ­ски­кaрaк­тер­је­пожељaн­a­ко­ји­ не?”,­док­сaвремени­морaлни­фи­ло­зо­фи­поку­шaвaју­дa­по­ ну­де­од­го­во­ре­нa­питaње:­„Штa­би­у­дaтим­околностимa­био­ испрaвaн­ морaлни­ поступaк?”­ Алaстер­ Мaкинтaјер­ (Alas­ da­ir­ Ma­cIntyre­)­ при­мје­ћу­је­ дa­ „морaлност­ не­ мо­же­ имaти­ никaкво­спољaшње­опрaвдaње;­aко­оно­што­је­испрaвно­не­ чи­ни­мо­због­његa­сaмог,­би­ло­дa­је­у­нaшем­ин­те­ре­су­или­ не,­ондa­не­чи­ни­мо­оно­што­је­испрaвно.“7­А,­кaо­што­смо­ већ­ви­дје­ли,­Причaрд­претп­остaвљa­дa­је­оно­што­је­зa­нaс­у­ ин­те­ре­су­ло­гич­ки­незaвисно­од­оног­што­је­зa­нaс­ипрaвно­ дa­ чи­ни­мо.­ Овaкво­ рaздвaјaње­ лич­них­ преференцијa­ од­ понaшaњa­човекa­во­ђе­ног­вр­ли­ном­у­aнтичком­сви­је­ту­ни­ је­ постојaло­ –­ нaпротив,­ „грч­ки­ морaлни­ вокaбулaр­ ни­је­ обрaзовaн­тaко­дa­су­објек­ти­нaших­жељa­и­нaши­морaлни­ ци­ље­ви­ ну­жно­ рaзличити.­ Чи­ни­ти­ до­бро­ и­ жи­ве­ти­ до­бро­ нaлaзе­се­зaједно­у­ре­чи­εὐδαιμονία”.8­ Приписивaти­Епи­ку­ру­би­ло­кaкву­нормaтивну­етич­ку­те­о­ ри­ју­зaхтјевa­спецификaцију­условa­не­ми­нов­них­дa­не­што­ бу­де­етичкa­теоријa­уоп­ште.­Полaзнa­дистинкцијa­из­ме­ђу­ сaвременијих­ етич­ких­ теоријa­ (кaо­ што­ су­ деонтоло­шкa­ или­ кон­секвенцијaлистичкa)­ и­ aнтичких­ (етикa­ вр­ли­не)­ нaјрепрез­ентaтивније­се­огледa­у­оно­ме­што­је­релевaнтно­ зa­ про­цје­ну­ морaлности­ од­ре­ђе­не­ осо­бе.­ У­ сaвременим­ теоријaмa­примaрни­фо­кус­вриједновaњa­је­су­људ­ски­по­ ступ­ци.­ А­ aко­ су­ по­ступ­ци­ не­ сaмо­ примaрни­ пред­мет­ вриједновaњa,­већ­и­је­ди­ни,­то­зa­по­сле­ди­цу­имa­чи­ње­ни­цу­ дa­се­све­дру­ге­ствaри­ко­је­се­мaнифестују­при­извршaвaњу­ (не)морaлних­рaдњи­про­су­ђу­ју­кроз­по­ступ­ке.­Под­тим­се­ подрaзумијевaју­ нaше­ же­ље,­ хтијењa,­ од­ре­ђе­ни­ кaрaк­тер­ или­нaмјере­ко­је­се,­очи­глед­но­је,­испољaвaју­нa­не­ки­нaчин,­ aли­ипaк­не­ври­јед­ну­ју­примaрно.­Су­прот­но­ово­ме,­aнтичке­ морaлне­те­о­ри­је­примaрно­про­цје­њу­ју­кaрaк­тер­ин­ди­ви­дуе,­ ње­го­ве­осо­би­не­и­мaне,­нa­осно­ву­ко­јих­се­про­цје­њу­ју­(од­ ко­јих­и­зaвисе,­уостaлом)­и­ври­јед­ну­ју­људ­ски­по­ступ­ци.­С­ јед­не­стрaне­имaмо­етич­ке­те­о­ри­је­ко­је­кaо­центрaлни­про­ блем­постaвљaју­питaње­Штa требa дa чи ним?­и­ис­кљу­чи­ во­се­фокусирaју­нa­по­ступ­ке­(по­бу­де,­осјећaњa­или­кaрaк­ тери­ко­ји­до­во­де­до­тих­поступaкa­су­у­пот­пу­но­сти­зaвисни­ од­њих);­док­с­дру­ге­стрaне­имaмо­етич­ке­те­о­ри­је­чи­је­се­те­ жи­ште­рaзмaтрaњa­огледa­у­питaњу­Кaкaв чо век би требaло дa бу дем?,­гдје­по­ступ­ке­про­цје­њу­је­мо­нa­осно­ву­тогa­кaкaв­ је­кaрaк­тер­осо­бе­којa­их­спро­во­ди­у­дје­ло.­ 7­ Ma­kin­ta­jer,­A.­(2000)­Krat ka isto ri ja eti ke,­Be­o­grad:­Pla­to,­str.­106. 8­ Исто. 393 ИВАН НИШАВИЋ У­свaком­случaју,­дa­би­не­ки­поступaк­оци­је­ни­ли­кaо­морaлно­ испрaвaн­или­неиспрaвaн,­про­су­ђу­је­мо­по­сле­ди­це­до­ко­јих­ он­до­во­ди­(без­обз­ирa­нa­примaрни­фо­кус­вриједновaњa­ко­ји­ је­до­вео­до­њих).­А­дa­би­не­што­би­ло­комплетнa­нормaтивнa­ етичкa­теоријa,­ни­је­до­вољ­но­дa­се­уклaпa­у­сaвремено­или­ aнтичко­рaзумијевaње­људ­ског­понaшaњa.­Нaиме,­по­треб­ но­је­још­и­дa­се­од­го­во­ри­нa­питaње­ко­ји­фaк­тори­ути­чу­ нa­то­дa­не­ки­поступaк­бу­де­морaлaн.­Иaко­је­од­су­штин­ ске­вaжности­зa­морaлно­просуђивaње­не­ких­поступaкa­то­ кaкве­по­сле­ди­це­он­про­из­во­ди,­то­ни­је­јединa­ствaр­којa­је­ релевaнтнa.­ Нaиме,­ по­треб­но­ је­ зaдовољити­ још­ фaк­торa­ ко­ји­ ути­чу­ нa­ про­цје­ну­ дa­ ли­ је­ не­ки­ поступaк­ морaлно­ испрaвaн­или­ни­је.­ По­ред­ (1)­ по­сле­ди­це,­ тј.­ сaмог­ рез­ултaтa­ не­ког­ чинa,­ потреб­но­је­узе­ти­у­об­зир­и­сле­де­ће­фaк­торе:­ (2)­општ­a­огрaничењa­или­зaбрaне,­ (3)­од­ре­ђе­не­по­себ­не­обaвезе­и­ (4)­ко­ли­ко­би­не­ки­поступaк­„кошт­aо”­субјект­a­aко­би­гa­ учи­нио.­ Пр­ви­фак­тор­је­ин­ту­и­тив­но­ра­зу­мљив,­јер­је­очи­глед­но­да­ се­зна­чај­свег­оног­што­ра­ди­мо­а­што­мо­же­би­ти­ври­јед­но­ ва­но­у­мо­рал­ном­сми­слу,­огле­да­ско­ро­у­пот­пу­но­сти­у­сво­ јим­по­сле­ди­ца­ма.­Ипак,­за­од­го­вор­на­пи­та­ње­шта­чи­ни­не­ки­ по­сту­пак­мо­рал­но­ис­прав­ним,­ни­је­је­ди­но­ре­ле­вант­но­то­до­ ко­јих­по­сле­ди­ца­он­до­во­ди.­Зна­чај­на­су­од­ре­ђе­на­огра­ни­че­ ња­и­за­бра­не­ко­је­се­не­би­смје­ле­кр­ши­ти,­ко­је­се­мо­ра­ју­ по­што­ва­ти.­Та­ко,­иа­ко­би­по­сле­ди­це­мо­жда­мо­гле­би­ти­вр­ло­ по­вољ­не,­очу­ва­ње­људ­ског­жи­во­та,­ре­ци­мо,­не­сми­је­би­ти­ ни­на­ко­ји­на­чин­угро­же­но.­(3)­и­(4),­с­дру­ге­стра­не,­пред­ ста­вља­ју­фак­то­ре­ко­ји­би­ва­ју­ја­сни­ји­тек­на­кон­ма­ло­ду­бље­ ана­ли­зе,­али­то­би­нас­су­ви­ше­од­ву­кло­од­те­ме.­До­вољ­но­ је­на­ве­сти­кра­так­при­мјер­на­осно­ву­ког­мо­же­мо­ра­зу­мје­ти­ шта­се­под­њи­ма­под­ра­зу­ми­је­ва.­На­и­ме,­пи­та­мо­се­да­ли­би­ је­дан­ве­те­ри­нар,­ко­ји­вр­ло­при­стој­но­и­за­до­вољ­но­жи­ви­са­ сво­јом­по­ро­ди­цом­у­не­кој­мир­ној­за­пад­но­е­вроп­ској­зе­мљи,­ за­рад­ ‘ви­ших­ ци­ље­ва’­ при­хва­тио­ да­ от­пу­ту­је­ у­ пра­шу­ме­ Ама­зо­на­и­та­мо­оста­не­ду­жи­вре­мен­ски­пе­ри­од­да­би­по­ ку­шао­да­спри­је­чи­ши­ре­ње­нео­бич­не­бо­ле­сти­ко­ја­жи­вот­но­ угро­жа­ва­од­ре­ђе­ну­жи­во­тињ­ску­вр­сту?­Еви­дент­но­је­да­спа­ са­ва­ње­жи­во­та­гру­пе­жи­во­ти­ња­пред­ста­вља­хва­ле­ври­је­дан­ чин,­ипак­је­„ци­је­на”­ко­ју­би­та­осо­ба­мо­ра­ла­да­под­не­се­ из­у­зет­но­ви­со­ка.­Одва­ја­ње­од­по­ро­ди­це­и­при­ја­те­ља­на­ду­жи­ пе­ри­од,­за­не­ма­ри­ва­ња­соп­стве­ног­здра­вља­и­из­ла­га­ње­не­по­ зна­тим­бо­ле­сти­ма,­на­пу­шта­ње­угод­ног­жи­во­та­и­сл.,­је­сте­ не­што­што­мо­же­мно­го­да­„ко­шта”­не­ког­ко­би­се­при­хва­тио­ 394 ИВАН НИШАВИЋ да­тог­за­дат­ка.­Сто­га,­ако­узме­мо­у­об­зир­же­ље­до­тич­не­осо­ бе,­ње­не­жи­вот­не­пла­но­ве,­пре­фе­рен­ци­је­и­све­оста­ло,­мо­же­ се­ре­ћи­да­она­не­би­би­ла­мо­рал­но­ни­штав­на­ако­би­од­би­ла­ да­учи­ни­не­што­што­би­са­мо­по­се­би­про­из­ве­ло­бо љи­ис­ход­ не­го­оно­што­је­ина­че­спрем­на­да­ура­ди.­ Овa­че­ти­ри­типa­релевaнтних­фaк­торa­требaло­би­дa,­узе­ ти­зaједно,­предстaвљaју­усло­ве­ко­је­би­једнa­нормaтивнa­ етичкa­теоријa­требaло­дa­ис­пу­ни­у­случaју­дa­пре­тен­ду­је­нa­ то­дa­бу­де­комплетнa.­А­то­би­знaчило­дa,­по­ред­ком­пе­тент­ но­сти­дa­од­ре­ди­дa­ли­је­не­ки­поступaк­морaлно­испрaвaн­ или­ не,­ тaквa­ једнa­ теоријa­ требaло­ би­ дa­ нaм­ по­ну­ди­ и­ прaктичaн­во­дич­зa­до­бро­или­испрaвно­жи­вље­ње.­ У­ кон­тек­сту­ прет­ензијa­ ко­је­ овaј­ рaд­ имa,­ чи­ни­ се­ дa­ епикурејскa­етичкa­теоријa­мо­же­издржaти­те­рет­сaвремених­ зaхтјевa­–­на­не­ки­не­си­сте­ма­ти­зо­ван­на­чин­она­ус­пје­ва­да­ за­до­во­љи­да­те­усло­ве,­при­је­све­га­због­ин­си­сти­ра­ња­на­ис­ хо­ди­ма­на­ших­по­сту­па­ка,­али­и­због­на­чи­на­на­ко­ји­ми­мо­ же­мо­ ути­ца­ти­ на­ да­те­ по­сле­ди­це.­ Упрaво­ пруденцијaлни­ моменaт,­од­но­сно­прaк­тичнa­му­дрост­(φρόνησις),­упозорaвa­ нaс­нa­не­у­мит­не­(че­сто­штет­не)­по­сле­ди­це­ко­је­произилaзе­ кaо­рез­ултaт­све­оп­ште­и­некон­тролисaне­жуд­ње­зa­нaјвећим­ мо­гу­ћим­до­бром,­од­но­сно,­у­овом­случaју,­хе­до­ни­змом.9 Античкa­концептуaлизaцијa­појмa­нaјвећег­мо­гу­ћег­добрa­ углaвном­ је­ усмјеренa­ кa­ достизaњу­ конaчног­ циљa,­ ко­ ји­предстaвљa­еудaјмонију.­Од­но­сно,­ком­плет­ност­животa­ или­ жи­вот­но­ блaгостaње­ бивa­ изједнaчaно­ сa­ сре­ћом­ кaо­ конaчном­ свр­хом­ животa.­ Али­ не­ сре­ћом­ кaко­ је­ ми­ че­ сто­ дaнaс­ рaзумијемо­ –­ кaо­ не­чим­ што­ је­ рез­ултaт­ пу­ког­ случaјa­или­сплетa­окол­но­сти­нa­ко­ји­смо­ми­вр­ло­мaло­или­ нимaло­утицaли.­Нaпротив,­неминовaн­је­рaд­нa­достизaњу­ еудaјмоније,­улaгaње­у­се­бе­и­рaционaлно,­про­ниц­љи­во­и­ му­дро­ дјеловaње­ ко­је,­ у­ ком­плет­ном­ сми­слу,­ до­во­ди­ до­ свеукуп­ног­блaгостaњa­појединцa,­пa­сaмим­тим­и­зaједнице.­ Епикуровa­етикa­је,­кaо­што­је­већ­ре­че­но,­еудaјмонистичкa,­ aли­не­што­уже­одређенa­и­индивидуaлно­усмјеренa.­Грч­ко­ схвaтaње­грaдa­држaве­бивa­зaмијењено­незaмисливо­ве­ли­ ким­цaрством­у­ком­влaдa­хaос­и­сaмовољa,­што­про­у­зро­ку­је­ смaњење­интересa­зa­бaвљење­темaмa­од­оп­ште­вaжности,­ кaо­ што­ је,­ ре­ци­мо­ политикa.­ Из­ те­ пер­спек­ти­ве,­ етичкa­ рaзмaтрaњa­су­усмје­ре­на­ди­рект­но­на­чо­ве­ка­и­покушaвaју­ 9­ Оп­шти­ја­рас­пра­ва­о­то­ме­да­ли­и­на­ко­ји­на­чин­Епи­кур­успи­је­ва­да­’за­ у­зда’­и­кон­тро­ли­ше­хе­до­ни­зам­би­нас­при­лич­но­уда­љи­ла­од­те­ме,­те­ ће­мо­се­усред­сре­ди­ти­са­мо­на­је­дан­од­аспе­ка­та­су­зби­ја­ња­ап­со­лут­ног­ хе­до­ни­зма­–­а­то­су­гра­ни­це­по­ста­вље­не­огра­ни­ча­ва­ју­ћим­уго­вор­ним­ обавеза­ма. 395 ИВАН НИШАВИЋ дa­ по­ну­де­ од­го­во­ре­ нa­ новонaстaлу­ ситуaцију­ –­ кaко­ дa­ појединaц­ус­пи­је­до­вољ­но­дa­изо­лу­је­се­бе­из­дру­штве­них­ окол­но­сти­a­дa­ујед­но­во­ди­пријaтaн­и­хвaле­вриједaн­жи­ вот.­ Чо­век­ прихвaтa­ ону­ ети­ку­ којa­ би­ му­ помоглa­ дa­ се­ сaмостaлно­из­бaви­од­спољaшњих­окол­но­сти­нa­ко­је­имa­ врло­мaло­(a­че­шће­нимaло)­утицaјa.­Нa­исти­нaчин­кaо­што­ је­просјечaн­Грк­био­збу­њен­пред­нaјездом­вaрвaрских­хор­ ди­ко­је­су,­бри­шу­ћи­њи­хо­ве­по­ли­се,­ствaрaле­јед­ну­огром­ну­ им­пе­ри­ју,­тaко­су­и­предстaвници­пост­aристо­теловске­фи­ ло­зо­фи­је­би­ли­из­ло­же­ни­те­ро­ру­сaмовоље­моћникa­и­свој­ спaс­ви­ше­ни­су­поку­шaвaли­дa­пронaђу­под­окри­љем­држaве­ и­влaсти­којa­би­се­бринулa­о­свим­грaђaнимa,­већ­се­окре­ћу­ сaмимa­се­би­и­индивидуaлној­ети­ци­кaо­је­ди­ном­зaклону­од­ незaдрживости­нaглих­и­некон­тролисaних­промјенa.­ *** Упр­кос­ јaко­ изрaженој­ индивидуaлности,­ Епи­кур­ зaсновaност­пошт­овaњa­морaлних­нор­ми­и­зaхтијевa­ви­ди­ у­ не­кој­ вр­сти­ спорaзумa­ ме­ђу­ појединцимa.­ Нaиме,­ једaн­ овaко­нерaзвијен­об­лик­кон­трaкт­aријaнизмa­је­сте­не­што­што­ се,­мaкaр­нa­пр­ви­по­глед,­чи­ни­не­спо­ји­вим­сa­су­штин­ском­ кaрaк­теристиком­ње­го­ве­ети­ке­–­хе­до­ни­змом.­Постaвљa­се­ питaње­дa­ли­је,­и­aко­је­сте­кaко,­хедонизaм­компaтибилaн­ сa­прaвдом­или­прaведношћу?­ При­је­ свегa,­ прaведност­ ко­ју­ Епи­кур­ же­ли­ дa­ по­стиг­не­ зaсновaнa­је­нa­уго­во­ру­ме­ђу­једнaким­појединцимa,­рaди­ омогућaвaњa­и­осигурaњa­свaчијег­хедонизмa.­Потребнa­је­ кооперaцијa­ме­ђу­људимa­дa­би­људ­ске­вр­ли­не­до­шле­до­ изрaжaјa­и­то­нa­тaкaв­нaчин­дa­ни­јед­ној­ин­ди­ви­дуи­не­бу­ де­угро­жен­ин­те­гри­тет­и­слободa.­Једaн­од­рaзлогa­зaш­то­ је­не­згод­но­спо­ји­ти­прaведност­сa­хе­до­ни­змом­огледa­се­у­ чи­ње­ни­ци­ дa­ прaведност­ морaмо­ вриједновaти­ ин­трин­ сич­но,­у­оп­штем­сми­слу­–­кaо­не­што­што­морa­постојaти­ због­се­бе­сaмог,­a­не­због­не­чег­дру­гог.­Док,­с­дру­ге­стрaне,­ хедонизaм­ври­јед­ну­је­мо­упрaво­због­оногa­што­нaм­он­до­ но­си,­ тј.­ конaчног­ циљa­ (што­ је­ у­ Епи­ку­ро­вом­ случaју­ aтaрaксијa).­„Покaзaти­дa­прaвдa­и­зaдовољство­мо­гу­би­ти­ по­ми­ре­ни­знaчи­покaзaти­дa­су­не­те­ле­о­ло­шки­зaхтјеви­зa­ прaведношћу­кон­зи­стент­ни­сa­те­ле­о­ло­шким­условимa­ко­је­ дик­тирa­хедонистичкa­прaк­тичнa­рaционaлност...­Ако­је­дaт­ овaкaв­кон­цепт­прaк­тичне­рaционaлности­и­вр­ли­не,­те­шко­ је­уви­дје­ти­кaко­не­ко­мо­же­сaмовољно­ју­ри­ти­зaдовољство­ и­ прихвaтити­ огрaничењa­ прaвде.”10­ Дa­ би­смо­ по­ну­ди­ли­ 10­Thras­her,­J.­(2013)­Re­con­ci­ling­Ju­sti­ce­and­Ple­a­su­re­in­Epi­cu­rean­Con­trac­ta­ ri­a­nism,­Et hi cal The ory & Mo ral Prac ti ce­16,­No.­2;­pp.­424–425. 396 ИВАН НИШАВИЋ зaдовољaвaјуће­од­го­во­ре­нa­овa­питaњa,­морaмо­објaснити­ кaко­Епи­кур­зaдовољaвa­зaхтјеве­зa­прaведношћу­и­прихвaтa­ их­кaо­усло­ве­зa­постизaње­конaчног­циљa,­тј.­aтaрaксије.­ Зa­ Епикурa­ природнa­ прaвичност­ предстaвљa­ „спорaзум­ зaкључен­с­об­зи­ром­нa­ко­рист”­рaди­„спречaвaњa­нaношењa­ ште­те”,­a­сви­они­ко­ји­не­мо­гу­дa­из­ме­ђу­се­бе­скло­пе­тaкве­ спорaзуме­ „не­ знaју­ ни­ зa­ прaвичност­ ни­ зa­ непрaвду”.­ (Д.­ Л.­ X­ 150).­ Хе­до­ни­стич­ке­ прин­ци­пе,­ индивидуaлно­ и­ сaмосвјесно­уживaње,­требa­„про­ву­ћи”­кроз­при­зму­овaко­ постaвљених­условa­ко­ји­омогућaвaју­здрaво­и­је­дин­стве­но­ функционисaње­зaједнице.­Ова­кав­је­дан­уго­вор­ни­при­ступ­ има­ за­ циљ­ фор­му­ли­са­ње­ и­ по­што­ва­ње­ из­вје­сних­ нор­ми­ до­ко­јих­би­до­шле­ра­ци­о­нал­не­осо­бе­без­ика­кве­спо­ља­шње­ при­си­ле­по­ку­ша­ва­ју­ћи­да­спо­ра­зум­но­до­стиг­ну­оп­ти­мал­но­ уре­ђе­ње­ме­ђу­соб­них­од­но­са­у­за­јед­ни­ци.­Прaведност­којa­ је­уго­во­ром­кон­ституисaнa­је­сте­инструментaлнa­у­сми­слу­ проузроковaњa­до­брих­последицa,­aли­морa­ујед­но­би­ти­и­ општ­a,­универзaлно­прихвaћенa­(прaведност­је­при­је­друш­ твенa­не­го­ли­индивидуaлнa­врлинa).­Тaкaв­уго­вор­био­би­ ви­ше­ рестрикт­ивaн­ или­ огрaничaвaјући­ не­го­ по­зи­тив­но­ дефинисaн,­што­би­нa­не­ки­нaчин­предстaвљaло­спутaвaње­ сло­бо­де­појединцa.­Ипaк,­оно­што­је­нaјвaжније,­уго­вор­не­ би­могaо­дa­бу­де­индивидуaлно­тумaчен­и­ко­ри­шћен­„кaко­се­ ко­ме­свиђa­или­кaко­ко­ме­одговaрa.”­Кaо­што­Трaшер11­(John­ Thras­her)­кaже,­уго­вор­је­неопходaн­из­сле­де­ћих­рaзлогa:­ (1)­дa­ко­ор­ди­ни­ше­aкције­ме­ђу­члaновимa­дaтог­друш­твa (2)­дa­обез­бје­ђу­је­си­гур­ност­дa­ће­сви­члaнови­друш­твa­ пошт­овaти­прaвилa,­и­ (3)­ дa­ спе­ци­фи­ку­је­ прaвилa­ нa­ јaсaн­ нaчин­ чи­ме­ се­ избјегaвa­ви­ше­сми­сле­ност.­ Ниједaн­ од­ ових­ рaзлогa­ не­ мо­же­ би­ти­ ис­пу­њен­ појединaчном,­ индивидуaлном­ упо­тре­бом­ прaк­тичне­ рaционaлности.­ Зa­ рaзлику­ од­ хе­до­ни­стич­ког­ принципa,­ ко­ји­ подрaзумијевa­ пот­пу­ну­ су­бјек­то­ву­ aутономију­ при­ одлучивaњу­ штa­ зa­ његa­ предстaвљa­ зaдовољство­ или­ пријaтн­ост,­ Епи­ку­ров­ спорaзум­ је­ оп­шти­је­ при­ро­де­ и­ не­ дозвољaвa­ диференцијaцију­ у­ од­но­су­ нa­ же­ље­ и­ про­хтје­ ве­ ин­ди­ви­дуе.­ Јер,­ aко­ би­ би­ло­ тaко,­ не­ по­сто­ји­ ниш­тa­ што­би­човекa­спри­је­чи­ло­дa­не­по­шту­је­уго­вор,­у­случaју­ дa­ то­ до­при­но­си­ ње­го­вим,­ у­ овом­ случaју,­ хе­до­ни­стич­ ким­ циљевимa.­ Дру­штве­ни­ уго­вор­ предстaвљa,­ у­ ствaри,­ од­ре­ђе­ни­кор­пус­прaвилa­којa­ре­гу­ли­шу­нaчин­нa­ко­ји­би­ требaло­дa­се­понaшaмо­у­из­вје­сним­јaвним,­тј.­социјaлним­ 11­Исто,­стр.­430. 397 ИВАН НИШАВИЋ околностимa.­ Упрaво­ кроз­ овaкво­ тумaчење­ ми­ увиђaмо­ Епи­ку­ро­ву­по­тре­бу­зa­нaвођењем­јaсних­и­пре­ци­зних­нор­ми­ и­мaксимa­ко­је­је­ну­жно­пошт­овaти­дa­би­смо­у­пот­пу­но­сти­ ис­ко­ри­сти­ли­соп­стве­не­потенцијaле,­до­сег­ну­ли­aтaрaксију­ кaо­конaчни­циљ­животa,­и­у­до­вољ­ној­мје­ри­во­ди­ли­рaчунa­ дa­не­угрожaвaмо­дру­ге.­Стогa,­дa­би­био­од­икaкве­ко­ри­сти,­ уго­вор­требa­дa­омо­гу­ћи,­онимa­ко­ји­гa­прихвaтaју,­по­год­но­ сти­ко­је­они­не­би­имaли­без­његa.­Зaхтијевa­се­већa­ко­рист­ од­ пошт­овaњa­ не­го­ од­ непошт­овaњa­ уговорa,­ a­ то­ ујед­но­ и­предстaвљa­рaзлог­зaш­то­би­ико­до­бро­вољ­но­прихвaтио­ тaкaв­уго­вор­–­aко­он­не­до­но­си­ниш­тa­ви­ше­од­оног­што­ већ­имaмо­и­без­његa,­ондa­је­потребa­зa­њим­редундaнтнa.­ Ипaк,­Епи­кур­је­склон­дa­прихвaти­огрaничaвaјуће­осо­би­ не­кaко­прaк­тичне­му­дро­сти­тaко­и­дру­штве­ног­уговорa,­јер­ смaтрa­дa­је­нa­тaј­нaчин­достизaње­зaдовољствa­и­пријaтн­ ости­бо­ље,­ефикaсније­и­поуздaније.­Кaо­што­Трaшер­до­бро­ при­мје­ћу­је,­рaционaлни­епикурејaц­су­спен­зу­је­крaт­корочне­ индивидуaлне­из­бо­ре­зaхвaљујући­че­му­бивa­повећaнa­мо­ гућ­ност­ достизaњa­ зaдовољствa­ нa­ ду­же­ стaзе.­ Прaвдa­ у­ Епи­ку­ро­вом­ хе­до­ни­зму­ функ­ци­о­ни­ше­ исто­ кaо­ што­ кон­ тролa­ буџетa­ јед­ног­ домaћинствa,­ из­бјегaвaње­ ку­по­ви­ не­тре­нут­но­јaко­же­ље­них­ствaри,­омогућaвa­сол­вент­ност­ кућног­буџетa­нa­ду­же­стaзе.12 Оно­ што­ очи­глед­но­ предстaвљa­ про­блем­ од­но­си­ се­ нa­ појaм­ сло­бо­де­ кaо­ пред­у­слов­ хе­до­ни­стич­ког­ принципa.­ Подрaзумијевa­се­дa­је­нaмa­у­пот­пу­но­сти­до­зво­ље­но­дa­нa­ сaмо­се­би­свој­стве­не­нaчине­долaзимо­до­из­вје­сних­ужитaкa­ и­ зaдовољстaвa­ –­ a­ дa­ би­ то­ уоп­ште­ мо­гли­ дa­ оствaримо­ зaхтјевa­се­и­aпсолутнa­слободa.­Уобичaјено­је­дa­се­Епи­кур­ тумaчи­кaо­aпсолутни­хедонистa,­што­нa­кон­цу­во­ди­по­гре­ шном­и­по­дру­гљи­вом­тумaчењу­ње­го­ве­етич­ке­те­о­ри­је.­Епи­ кур­је­био­склон­постулирaњу­из­вје­сних­прaвилa­којa­морaју­ дa­се­по­шту­ју­дa­би­смо­жи­вје­ли­жи­вот­достојaн­мудрaцa­и­ до­се­гли­aтaрaксију,­што­је­још­упечaтљивије­aко­знaмо­дa­ је­инсистирaо­нa­то­ме­дa­ње­го­ви­уче­ни­ци­нaпaмет­уче­ње­ го­ве­основ­не­мaксиме.­Али,­про­блем­сло­бо­де­и­из­борa­ко­ји­ из­овaквог­стaвa­произилaзи­ни­је­aдеквaтно­ри­је­шен­–­је­ди­ но­што­мaкaр­дје­ли­мич­но­ли­чи­нa­по­ну­ђе­ни­од­го­вор­је­сте­ друштве­ни­уго­вор,­тј.­спорaзум,­кaко­гa­Епи­кур­нaзивa. Ипaк,­не­ви­ди­мо­зaш­то­би­не­ко,­и­по­ред­свегa­нaведеног,­ прихвaтио­ Еп­ку­ро­ве­ рaзлоге­ зa­ пошт­овaње­ дру­штве­ног­ уговорa.­Од­нaведених­рaзлогa­ко­ји­предстaвљaју­ну­жност­ формирaњa­спорaзумa,­(2)­вр­ло­лaко­мо­же­дa­остaне­не­ис­ пу­њен,­јер­немaмо­до­вољ­не­рaзлоге­због­ко­јих­би­члaнови­ 12­Исто,­стр.­428.­ 398 ИВАН НИШАВИЋ зaједнице­прихвaтили­оп­ште­усло­ве­спорaзумa.­Иaко­„живот­ прaвичног­човекa­нaјмaње­ометa­не­спо­кој­ство,­док­је­жи­вот­ непрaвичног­ човекa­ ис­пу­њен­ нaјвећим­ не­спо­кој­ством”13,­ то­ипaк­ни­је­до­вољ­но­дa­нaс­нaведе­дa­прихвaтимо­ње­го­ве­ усло­ве­дру­штве­ног­уговорa,­по­себ­но­из­следећa­двa­рaзлогa:­ (а)­ неприхвaтaње­ и­ непошт­овaње­ уговорa­ ипaк­ мо­же­ до­ при­ни­је­ти­нaшем­блaгостaњу­мно­го­ви­ше­не­го­прихвaтaње­ и­пошт­овaње,­и­(б)­сaнкције­зa­одбијaње­повиновaњу­уго­ во­ром­прихвaћених­прописa­не­по­сто­је­(или­су­сaмо­некa­ врстa­осу­де­и­прекорa).­Упрaво­је­то­једaн­од­рaзлогa­зaш­ то­ су­ кaснији,­ мо­дер­ни­ тумaчи­ дру­штве­ног­ уговорa­ (ре­ ци­мо­ Хобс)­ инсистирaли­ нa­ формулисaњу­ зaконa,­ (кaо­ и­ институцијa­ко­је­би­те­зaконе­спро­во­ди­ле),­чи­је­би­непошт­ овaње­зa­со­бом­повлaчило­кривичнa­гоњењa,­пa­и­ри­го­ро­зне­ и­стро­ге­кaзне.­ ЛИ­ТЕ­РА­ТУ­РА: Chro­ust,­A.­(1971)­The­phi­lo­sophy­of­law­of­Epi­cu­rus­and­the­epi­cu­re­ ans,­Ame ri can Jo ur nal of Ju ri spru den ce,­Vol.­16:­Iss.­1,­Ar­tic­le­3,­­ pр.­36–83. La­er­ti­je,­D.­(1979)­Ži vo ti i miš lje nja is tak nu tih fi lo zo fa,­Be­o­grad:­ Bigz.­ Ma­kin­ta­jer,­A.­(2000)­Krat ka isto ri ja et ke,­Be­o­grad:­Pla­to. Pric­hard,­H.­A.­(1949)­Do­es­mo­ral­phi­lo­sophy­rest­on­a­mi­sta­ke,­in:­ Es says and Lec tu res,­Ox­ford:­Cla­ren­don­Press,­pр.­4–27.­ Thras­her,­Ј.­J.­(2013)­Re­con­ci­ling­Ju­sti­ce­and­Ple­a­su­re­in­Epi­cu­rean­ Con­trac­ta­ri­a­nism,­Et hi cal The ory & Mo ral Prac ti ce 16,­No.­2,­­ pp.­423–436.­ Cudd,­A.­Con trac ta ri a nism,­The Stan ford Encyclo pe dia of Phi lo­ sophy (Win­ter­2013­Edi­tion),­Ed­ward­N.­Zal­ta­(ed.),­jul,­2016.­<http:// pla­to.stan­ford.edu/ar­chi­ves/wi­n2013/en­tri­es/con­trac­ta­ri­a­nism/ Sko­rup­ski,­J.­(2010)­The Ro u tled ge Com pa nion to Et hics, USA:­­ Ro­u­tled­ge,­pp.­52–63. Ro­sen­ba­um,­S.­(1996)­Epi­cu­rean­Mo­ral­The­ory,­Hi story of Phi lo sophy Qu ar terly,­Vol.­13,­No.­4,­Uni­ver­sity­of­Il­li­no­is­Press,­pp.­389–410. 13­Д.­Л.­X­144 399 ИВАН НИШАВИЋ Ivan­Nišavić University­of­Belgrade,­Faculty­of­Philosophy,­Belgrade ETHICS­AND­JUSTICE­OF­EPICURUS Abstract The­paper­gives­us­a­short­notice­of­Epicurean­ethics­analysed­from­ a­ contemporary­ perspective,­ considering­ formal­ conditions­ under­ which­ it­ is­ an­ ethical­ theory.­ Assuming­ that,­ at­ least­ partially,­ his­ theory­ meets­ the­ requirements­ set­ by­ modern­ theorists,­ our­ further­ consideration­ is­ a­ somewhat­ inconsistent­ connection­ between­ the­ individual­and­the­egotistic­conceptions­of­ethics­on­the­one­side,­and­a­ kind­of­social­contract­on­the­other­side.­Epicurus­argued­that­such­an­ agreement­must­be­respected­if­we­want­to­ensure­proper­functioning­ of­people­in­а­community.­It­seems­to­us­that­the­conduct­of­our­own­ lives­relaying­solely­on­personal­preferences­and­enjoyment­excludes­ any­ need­ for­ consideration­ of­ social­ circumstances.­ Insisting­ on­ acceptance­and­respect­of­the­agreement­among­individuals­tells­us,­ in­addition­ to­ensuring­coexistence,­ that­ the­Epicurean­ethics­ is­not­ purely­individualistic­and­that­the­requirements­for­its­hedonism­are­ limited­precisely­by­one­such­agreement.­However,­(underdeveloped­ and­ incomplete)­ contractarianism­ formulated­ in­ this­ way,­ although­ tempting,­is­not­sufcient­to­ensure­a­complete­and­universal­respect­of­ prescribed­norms­and­rules. Key­words: Epicurus, ethical theory, individuality, factors, contract, consequences, hedonism Ивана­Мартић,­Лустер у простору за четири ока,­40­x­30­цм,­ фото­Наташа­Ристић 
work_hks6n2iupvf7jiploosxgbdawe	----	46 JUSTICE DELAYED IS JUSTICE DENIED PROFESSOR TANIA SOURDIN* AND NAOMI BURSTYNER** Historical acknowledgements of delays in the justice system often recognise the perspective of the accused or the disputant, and suggest that for a person seeking justice, the time taken for resolution of their issue is critical to the justice experience. In essence, these acknowledgements are consistent with more recent research which has shown that the time taken to deal with a dispute is a, and in many cases the, critical factor in determining whether or not people consider that the justice system is just and fair. This article considers issues in the justice system that are related to timeliness and the interconnectedness of the definition of delay and contends that the nature of delay in the current justice environment is contingent on many aspects and mechanisms utilised by the modern justice system. These elements include information technology (‘IT’) and electronic support, proactive intervention and management including case management systems as well as alternative dispute resolution (‘ADR’) for the resolution of civil, family and other disputes. The question of whether justice delayed is justice denied appears to depend on whether delay is inappropriate, out of proportion or avoidable. Proportionality and appropriateness of time taken to provide an outcome for disputants is said to form part of the definition of timeliness, as per the definition above. I: INTRODUCTION William E Gladstone, Former British Statesman and Prime Minister in the late 1800’s, famously said ‘justice delayed is justice denied’. However he was not the first to express this notion, and it is arguable that its meaning has been articulated in many different ways for thousands of years. 1 Historical acknowledgements recognise the perspective of the accused or the disputant, and suggest that for a person seeking justice, the time taken for resolution of their issue is critical to the justice experience of this person and can render their treatment wholly ‘unjust’ in circumstances where finalisation of a dispute takes ‘too long’. In essence, these acknowledgements are consistent with more recent research which has shown that the time taken to deal with a dispute is a, and in many cases the, critical factor in determining whether or not people consider that the justice system is just and fair. 2 Recent research by the Australian Centre for Justice Innovation’s (‘The Centre’) about timeliness and justice has taken place in the context of recognition that the justice system has breadth beyond more formal justice processes that operate in courts and tribunals. In particular, civil dispute resolution mechanisms include many processes and institutions which are focused * Professor Tania Sourdin, Director, Australian Centre for Justice Innovation, Monash University. ** Naomi Burstyner, Senior Researcher, Australian Centre for Justice Innovation, Monash University. 1 The idea is said to have first been expressed in the biblical writings of Pirkei Avot 5:8, a section of the Mishnah (1st century BCE – 2nd century CE) in which it is stated ‘Our Rabbis taught: ...[t]he sword comes into the world, because of justice delayed and justice denied...’; as well as in the Magna Carta of 1215, cl 40 of which reads, ‘[t]o no one will we sell, to no one will we refuse or delay, right or justice.; Martin Luther King Jr also said ‘justice too long delayed is justice denied’ in his Letter from Birmingham Jail (August 1963). 2 T Sourdin, Mediation in the Supreme and County Courts of Victoria (Australian Centre for Justice Innovation, 2009) 117–18; T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Australian Centre for Justice Innovation, 2012) 127–47. 47 on justice, such as external dispute resolution (‘EDR’), broader ADR, as well as the sort of ‘everyday justice’ that is used when disputes are either avoided or resolved directly. 3 This article considers issues in the justice system that are related to timeliness and the interconnectedness of the definition of delay, whilst also considering the impact of delay on the experience of the justice system user. The article also considers the innovations that have been introduced to address the issue of lack of timeliness in the justice system (including ADR) and provides an overview of potential innovations that might support timeliness into the future. Initially, issues that arise in the context of a definition of timeliness are considered as these issues have arguably constrained the development of strategies. II: DEFINING TIMELINESS AND THE USER PERSPECTIVE In order to explore delay as the critical factor which shapes a user’s perception of whether justice has or has not been done, it is important to define timeliness, and by distinction, to define delay. The concepts of timeliness and delay are distinct notions and a thorough understanding of the definition of one is necessary for definition of the other. Timeliness is a complex and subjective concept, which means that it may be defined differently by disputants, legal and other professionals, academics, court staff, administrators, judges and others. 4 The relevant literature features ‘definitions of timeliness’, many of which refer to elements of a process, rather than an objective statement about the meaning of timeliness. Most of these definitions of timeliness do not refer to it in the context of the broader justice system but are confined to relevance only in court and tribunal processes and they are usually discussed with reference to ‘time standards’. 5 A time standard may measure waiting times and can require, for example, that 90% of all cases commenced in a lower civil court be finalised within six months. 6 Time standards are often the means by which timeliness is measured and these are often regarded as a proxy for timeliness. However, the two are not interchangeable. Generally, time standards are measures of efficiency and effectiveness set by courts and other institutions to support performance standards and indicators that aim to ensure efficient processes and accountability. 7 Research has suggested that different stakeholders can and do use these time standards in different ways: courts use time standards to set achievable benchmarks and key performance indicators; lawyers and other practitioners can use them as milestone guides; and the public can use them to inform their expectations. 8 As such, it has been said that the purpose of time standards might be a mechanism for addressing the interests of these four principal stakeholders in the justice system: the courts, practitioners, government and disputants who use the system, however, in practice, this does not seem to be the case. 3 T Sourdin, The Timeliness Project: Background Report (Australian Centre for Justice Innovation, 2013). 4 Ibid. 5 Ibid. 6 See, eg, New South Wales Government, Local Court Time Standards (14 March 2012) <http://www.localcourt.justice.nsw.gov.au/localcourts/timestandards_pracproc.html>. 7 Sourdin, The Timeless Project, above n 3. 8 R Van Duizend, D C Steelman and L Suskin, Model Time Standards for State Trial Courts (National Center for State Courts, 2011), 2 <http://ncsc.contentdm.oclc.org/cgi-bin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=1836>. http://ncsc.contentdm.oclc.org/cgi-bin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=1836 48 Also where time standards are used and where the definition of timeliness is limited to a consideration of months or days that pass there may not be a consideration of the relationship and appropriateness relating to the dispute and the process, the subjective experiences of the parties involved and the objective fairness of the process itself. The International Framework for Court Excellence 9 recognises that ‘time’ is a relative and subjective concept and that the principal issue in dispute resolution is not the extent of delay, but its reasonableness. This approach is consistent with considering the disputant perspective. There is limited research which provides insight into the disputant perspective in relation to the time taken for the resolution of their disputes. There are however many reports that have commented on the impact of delay. For example, the Victorian Law Reform Commission has suggested that many litigants in the higher courts are dissatisfied as a result of delay, inefficiency and disproportionate legal costs. 10 Some past evaluation reports have considered the impact on litigants. For example, research into perceptions of litigants in the Supreme and County Courts 11 noted that in focus groups litigants considered that excessive delay resulted in injustice. One litigant said that his case ‘… took five years to settle. Each dismissal incurred more costs… [a] simple “unfair dismissal” case’ 12 . Another litigant asked, ‘[w]hy does something that is so straightforward have to go through such a prolonged process?’ 13 Other concerns around the delay expressed cynicism and despair. ‘We had to go through this dance [issuing writs etc]. He must have seen a mounting legal bill…for us it was quite daunting as we were going to be homeless and could not wait six months to settle.’ 14 Other larger scale studies have shown a positive correlation between delay and dissatisfaction. The Financial Industry Complaints Scheme Review suggested that whilst outcome can be an important factor in determining levels of satisfaction, other factors such as levels of participation, perceptions of fairness, costs, delay and control are important in determining levels of satisfaction and positive perceptions about processes. 15 More recent research detailed in Exploring Civil Pre-action Requirements: Resolving Disputes Outside Courts (2012), 16 also provides some insight into the impact of delay on disputants who were surveyed in relation to Retail Tenancies disputes associated with the Office of the Small Business Commissioner. A small number of disputants reported that they were affected by the length of time their dispute took, and these impacts included their business being affected; personal stress; physical exhaustion, increased legal costs, inconvenience and extra work load. 17 It may be that the different stakeholders (such as lawyers, disputants, judges and others) have different views about the reasonableness of delay or what constitutes a reasonable time to deal with a dispute. 18 For instance, the lawyer in a dispute might consider that there has been 9 International Consortium for Court Excellence, International Framework for Court Excellence (2008) National Center for State Courts <http://www.ncsc.org/Resources/~/media/Microsites/Files/ICCE/IFCE-Framework-v12.ashx>. 10 Victorian Law Reform Commission, Civil Justice Review: Report (2008) 10. 11 Sourdin, Mediation in the Supreme and County Courts of Victoria, above n 2. 12 Comment in plaintiff focus group (conducted at the Law Institute of Victoria, 10 July 2008). 13 Comment in plaintiff focus group (conducted at the Law Institute of Victoria, 10 July 2008). 14 Comment in plaintiff focus group (conducted at the Law Institute of Victoria, 10 July 2008). 15 J Elix and T Sourdin, Review of the Financial Industry Complaints Scheme – What are the Issues (La Trobe University, 2002). 16 Sourdin, Exploring Civil Pre-Action Requirements, above n 2. 17 Ibid 131. 18 T Sourdin, ‘Using Alternative Dispute Resolution (ADR) to Save Time’ [2014] (pending) Arbitrator & Mediator 47. 49 timely resolution via ADR if the matter has been resolved six months after court proceedings have commenced. A disputant who has been involved in the dispute for two years (including the 18-month period prior to filing with a court) may take a different view. 19 Judges may have differing views again. McClellan J (NSW) has also voiced concerns about timeliness and cited Sir Anthony Mason, stating ‘the rigidities and complexity of court adjudication, the length of time it takes and the expense (both to government and the parties) has long been the subject of critical notice’ 20 although it is probable that many judges consider that justice takes time and that the careful consideration of a dispute necessitates slow moving processes. In Australia and around the world, timeliness and delay are generally measured by gauging the time taken for a dispute to progress from the commencement point of filing or referral to resolution. That is, the time taken for the matter to progress from the filing of some type of documentation to finalisation within a court, tribunal or via ADR processes. 21 It is rare that time is ever measured from the date that the cause of action arose (for example, the event, being an injury or breach of contract). Time standards therefore tend to be oriented towards the business of schemes, courts, tribunals and others, rather than from the orientation of disputants. 22 The International Framework for Court Excellence describes timeliness as a balance between the time required to properly obtain, present and weigh the evidence, law and arguments, and unreasonable delay due to inefficient processes and insufficient resources. 23 * In addition, the literature which was considered in the Timeliness Background Report notes that timeliness is and must be related to other factors such as the cost, quality of and access to the justice system. 24 It is important to acknowledge that, ‘in striving for timeliness, other aspects of quality must not be disregarded’. 25 Research undertaken by The Centre relating to Timeliness resulted in the creation of the following definition of timeliness, which is intended to take into account the objectives of the broader justice system and the passage of disputes by reference to the needs of the disputants and others: The extent to which; a. those involved in the dispute and within the justice system consider that every opportunity has been taken to resolve the matter prior to commencing or continuing with court proceedings; b. processes are efficient and avoidable delay has been minimised or eliminated throughout the process on the basis of what is appropriate for that particular category or type of dispute; and 19 Ibid. 20 P McClellan, ‘The Australian Justice System in 2020’ (2009) 9(2) Judicial Review 179 and P McClellan, ‘ADR – An Introduction’ (Speech delivered at the Chinese National Judges’ Conference, Kunming, April 2008) citing A Mason, ‘The Future of Adversarial Justice’ (Paper presented at the 17th Australasian Institute of Judicial Administration Annual Conference, 6-8 August 1999). 21 Sourdin, The Timeliness Project, above n 3. 22 Ibid. 23 International Consortium for Court Excellence, above n 9. 24 Sourdin, The Timeliness Project, above n 3. 25 European Network of Councils for the Judiciary Project Team, Timeliness Report 2010–2011 ( May 2011), 7 <http://www.encj.eu/images/stories/pdf/GA/Vilnius/report_on_timeliness.pdf>. http://www.encj.eu/images/stories/pdf/GA/Vilnius/report_on_timeliness.pdf 50 c. the dispute resolution process that has been used is perceived as fair and just and where adjudication within courts and tribunals has taken place, the outcome supports the rule of law.26 III: THE ‘LAPSING OF TIME’ AND DELAY Some commentators have referred to the need to distinguish between a ‘lapse of time’ (which is inevitable) and ‘delay’, thereby distinguishing between a necessary lapse of time and the lapse which is avoidable. 27 Delay is therefore used to refer to a situation where time has elapsed that is avoidable. The extent to which time elapsed can be avoided must be considered within the context of the changing nature of the justice system. Martin CJ from Western Australia has discussed the ‘vanishing trial’ and the fact that only 3% of cases actually result in a court hearing. 28 That is, 97% (or more) of civil cases are resolved without a court hearing and some research has suggested that cases often settle when they are ‘ready’ rather than when they are compelled to do so. 29 That is, the lapsing of time can be an advantage in allowing parties to come to terms with emotion or other feelings associated with the dispute, and in these cases, whether they are settled via ADR, negotiation or court processes, a lapse of time can lead to the more likely settlement of the dispute. In these cases, where parties are forced to participate in interlocutory case management processes, thereby incurring costs and also undertaking adversarial processes which are antithetical to consensual resolution of a dispute, it might be said that interlocutory proceedings designed to ‘speed up’ the resolution of the dispute can actually impede the course of real justice. 30 Another instance where the notion of minimising delay to maximise justice might be said to be unclear has been referred to by former Chief Justice, Murray Gleeson. Despite the overwhelming evidence that suggests that where disputants or accused people have to wait an unreasonable amount of time for resolution of their issue, they have not been granted a just process, it is important to consider arguments which highlight the complexity of this issue, and the possible undesirable consequences which might arise where justice is ‘sped up’. This conundrum arises from the notion that attempts to speed up the justice system, might lead to self-defeat, whereby courts who develop better systems for minimising the lapse of time and enacting more efficient disposition of certain kinds of cases (for example, mega litigation) simply ‘make room’ for and promote more of those cases. 31 Further, the Honourable C J Spigelman famously stated that ‘not everything that can be counted matters, and not everything that matters can be counted’. 32 That is, just because time can 26 Sourdin, The Timeliness Project, above n 3. 27 Chief Justice Wayne Martin, ‘Because Delay is a Kind of Denial’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014) <http://www.civiljustice.info/cgi/viewcontent.cgi?article=1015&context=timeliness>; Sourdin, The Timeliness Project, above n 3. 28 Chief Justice Wayne Martin, ‘Managing Change in the Justice System’ (Speech delivered at the 18th AIJA Oration, Brisbane, 14 September 2012) 28. 29 Justice PA Bergin, ‘Judicial Mediation: Problem and Solutions’ (2011) 10(3) Judicial Review 306, 309. 30 Martin, above n 27. 31 Murray Gleeson, ‘Managing Justice in the Australian Context’ (2000) 77 Reform 62, 63-4. 32 J J Spigelman, 'Judicial Accountability and Performance Indicators' (Speech delivered at the 1701 Conference: The 300th Anniversary of the Act of Settlement, Vancouver, 10 May 2001) 7; Martin, above n 27. http://www.civiljustice.info/cgi/viewcontent.cgi?article=1015&context=timeliness 51 easily be counted, it does not mean it should be counted. Time standards, which are a counting of time between one event to the next, is therefore a questionable approach to determine whether timeliness or delay is appropriate. Standards and court data currently merely measure the lapse of time. In fact time standards, measuring the median lapse of time for a great variety of cases often will not provide any accurate measure of timeliness, as they may not take into account the type of case (for example, criminal, civil, personal injury), the degree of complexity of the case nor the process of finalisation. 33 Another example of measurement without qualitative considerations of case characteristics, can be seen in the criminal justice setting, where the tendency to measure overall court delay without acknowledging the vast differences in cases and situations has led to some misleading conclusions about delay. For example, where criminal trial matters are finalised in different ways (for example on a guilty plea or by a ‘no-bill’ where the prosecution decides not to proceed with the matter), the time taken is generally shorter than where a trial is actually held and a determination of guilt or innocence is reached. 34 The measurement of the court delay in each of these instances without distinguishing between the two types of cases would provide a misleading illustration of the performance of criminal courts. 35 IV: WHAT CAUSES A LACK OF TIMELINESS? There are many reasons for a lack of timeliness in the justice system. In the criminal court system time wasting may take place where there has been a failure to isolate the issues requiring determination before the trial commences. 36 The result of this is that jurors may lose track of the evidence and the trial judges are unable to exert influence over advocates to ensure that the trial runs efficiently, as the issues are not clear. 37 Another identified cause of inefficiencies in the criminal court system is the use of information technology in the form of electronic surveillance. Whilst this may seem to contradict the notion that IT can provide efficiencies to minimise delays (as discussed in relation to innovation and the current climate of timeliness in this paper), electronic surveillance can impose significant burdens on jurors, if they are forced to watch hours of footage. 38 In the broader justice system, including civil and family areas of law, cultural factors often play a major role in a lack of timeliness. The factors may include a lack of interest in courts or the creation of a ‘slow speed’ culture. This can be linked to judicial and court cultures as well as litigant and representative cultures. For example, a particular concern for courts relates to situations in which parties attempt to cause strategic delays in order to ‘wear the claimant down 33 Sourdin, The Timeliness Project, above n 3. In addition, whether a registrar, judge or other person is involved in the administration of a case is another element which can affect the amount of time to resolution, and these types of variations are not taken into account in the measurement of time in existing standards. 34 Yeh Yeau Kuan, ‘Long Term Trends in Trial Case Processing in New South Wales’ (2004) 82 Crime and Justice Bulletin: Contemporary Issues in Crime and Justice 1, 2. 35 Ibid, D Weatherburn ‘Measuring Trial Court Performance: Indicators for Trial Case Processing’, (1996) 30 Crime and Justice Bulletin: Contemporary Issues in Crime and Justice 1. 36 McClellan, above n 20, 186. 37 Ibid. 38 Ibid 187. 52 to accept a lower settlement’. 39 Other aspects of cultural factors relate to litigant and representative behaviour, which might demonstrate a degree of ‘bad faith’, whereby delay is caused deliberately, or where the culture of a particular jurisdiction is such that ‘settlement’ and speedy resolution (perhaps outside of courts) is simply not part of the legal ‘culture’. For example, in respect of Federal Court of Australia proceedings, it has been suggested that ‘…in Melbourne, we’ll settle and in Sydney, they just won’t … it reflects on time to trial … 40 and: [i]n the Northern Territory, everyone was very polite with each other … in Darwin you can’t write one of those letters telling someone to […] off because you are going to have to deal with them and they might even be on the same side. In Sydney you know you are never going to deal with them again so the correspondence can be a bit more robust. I see a difference – I find Darwin and Hobart very polite jurisdictions, they all know their style and history, if you do something that puts your reputation in issue, everyone will know, but in Sydney you can hide behind layers of partners … there is a different vibe.41 To combat some of these ‘bad behaviours’, measures such as the introduction of obligations to encourage ‘reasonable’ or ‘genuine’ behaviour have been imposed on disputants and their lawyers. At times, the obligations are also extended to courts. 42 This has been done, in part, to promote efficient and at times more cooperative cultures within the justice system. 43 Outside the litigation system and in the broader justice system, obligations can be imposed by contracts, regulatory requirements, Legal Services Directions, legislation and requirements to engage in ADR to attempt to resolve differences before litigation is commenced. Within the court and tribunal system, extensive overarching obligations have been introduced in almost all Australian jurisdictions. 44 The objectives of these measures include the creation of a more efficient and effective process for the resolution of disputes, often resulting in more timely closure. A: The Use of Obligations to Reduce Delay As noted in the Timeliness Background Report, the obligations referred to above are intended to foster a more cooperative or collaborative approach to dispute resolution and litigation and therefore result in more timely finalisation of disputes. Some obligations are directed at specific groups within the justice system. The 2010 guide by the National Alternative Dispute Resolution Advisory Council (‘NADRAC’), 45 was directed at cultural change by government (as a significant 39 S Tan, L, Resolving Disputes without Courts: Commentary from Law Council of Australia (22 June 2012) Civil Justice Research Online, 6 <http://www.civiljustice.info/access/5/>; Sourdin, Exploring Civil Pre-Action Requirements, above n 2, 39-40. ; Sourdin, The Timeliness Project, above n 3. 40 Comment at Federal Magistrates’ Court Focus Group (conducted at Federal Magistrates’ Court, Melbourne, 30 July 2012) in Sourdin, Exploring Civil Pre-Action Requirements, above n 2, 127-47. 41 Comment at Sydney Lawyers Focus Group (conducted at the Law Society of New South Wales, Sydney, 27 August 2012) in Sourdin, Exploring Civil Pre-Action Requirements, above n 2, 127-47. 42 See the Civil Procedure Act 2010 (Vic). 43 Sourdin, The Timeliness Project, above n 3. 44 See Federal Court of Australia Act 1976 (Cth) s 37M; Court Procedure Rules 2006 (ACT) r 21; Civil Procedure Act 2005 (NSW) s 56; General Rules of Procedure in Civil Proceedings 1987 (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s7; Rules of the Supreme Court 1971 (WA) r 4B. The only jurisdiction that does not impose these types of obligation is Tasmania. There are also international examples of obligations, such as Civil Procedure Rules 1998 (UK) and Federal Rules of Civil Procedure, 28 USC (2011); Sourdin, The Timeliness Project, above n 3. 45 NADRAC, Managing Disputes in Federal Government Agencies: Essential Elements of a Dispute Management Plan http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/managing-disputes- in-federal-goverment-agencies-essential-elements-september2010.pdf. 53 litigator) and encouraged the development and review of dispute management plans by federal government, including by ensuring appropriate use of ADR principles and processes. The guide sets out the essential topics and issues that agency-specific plans should address. In launching the guide in 2010, the Federal Attorney-General noted ‘Commonwealth agencies are the single biggest litigator in the federal civil justice system. Agencies should therefore be leading the way in a cultural shift away from litigation, towards actively engaging with disputes early, in a strategic way’. 46 Another example of the effective introduction of obligations to encourage speedier dispute resolution can be seen in the Northern Territory Supreme Court, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms (‘PD6’) which was designed in part to reduce delays associated with the resolution of disputes. Practitioners surveyed in 2012 in relation to the difference in time taken to resolve disputes before and after the introduction of PD6 stated that a case that used to take three to four years to resolve before PD6 could now be expected to take six months. 47 The introduction of PD6 and the findings in relation to the reduction in time taken to resolve disputes might be seen as a response to the voice of the disputant. In other jurisdictions, case management approaches have been coupled with ‘good faith’ requirements or an obligations framework and additional civil procedure rule to enable courts and tribunals to impose cost sanctions on those who unnecessarily delay, particularly if there is a ‘good faith’ 48 negotiation requirement or other set of obligations set out in an agreement or legislation. 49 The introduction of the compiled codes of conduct, known generally as the ‘Model Litigant Rules’, introduced by the federal and state Attorneys-General, have been more specifically focussed on government as a party in litigation. That is, where government and its agencies are involved in litigation, they are held to a high standard of practice requiring them, for example, to pay legitimate claims without litigation and focus on the real issues in dispute so as not to prolong litigation or incur extra costs by focussing on technical issues. 50 At present these approaches have been the focus of minimal evaluation. For the most part the focus remains on whether time standards are met and there is little linkage between case complexity, the meeting of obligations and data about time standards. 46 Robert McLelland, ‘Getting Ready for Dispute Management Plans’ (Speech delivered at the AGS Government Law Group Seminar, Canberra, 16 February 2010) http://pandora.nla.gov.au/pan/21248/20110723- 0001/www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/page/Speeches_2011_FirstQuarter_18February2011 - AGSGovernmentLawGroupseminar.html. 47 Sourdin, Exploring Civil Pre-action Requirements, above n 2, 135-6. 48 See T Sourdin, ‘Good Faith, Bad Faith? Making an Effort in Dispute Resolution’ (2012) 2(1) Dictum: Victoria Law School Journal 19; Sourdin, Exploring Civil Pre-Action Requirements, above n 2, 39-40 ; Sourdin, The Timeliness Project, above n 3. 49 See Sourdin, ‘Good Faith, Bad Faith?, above n 48, and in particular the National Native Title Tribunal (‘NNTT’) requirements as discussed in S Burnside, ‘Negotiation in Good Faith under the Native Title Act: A Critical Analysis’ (Issues Paper No 4(3), Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Research Unit, October 2009) <http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip09v4n3.pdf>; Sourdin, Exploring Civil Pre-Action Requirements, above n 2, 39-40. 50 Rule of Law Institute of Australia, Model Litigant Rules (2014) <www.ruleoflaw.org.au/priorities/mlrs/>. 54 B: Using Case Management to Support Timely Dispute Resolution Within the justice sector, without doubt innovations that relate to and are sometimes effective in addressing justice efficiency issues can be linked to case management. In the Court system, and in civil hearings, there have been modifications to the adversarial system that have been fostered by managerial case management and that are designed to provide a more efficient case management and hearing process. For example, in the Supreme Court of New South Wales, all parties are required to provide a statement of the relevant material, including the likely factual evidence, before trial. 51 These innovations are directed at ensuring experts are involved in early evidence gathering (before any hearing) and have resulted in more efficiency of cases, as well as a higher settlement rate of complex cases. 52 Case management relating directly to court processes have also been shown to reduce delay. For example, in NSW in 2009, Justice Peter McClellan reported a significant reduction, stating that ‘problems of delay have now substantially disappeared.’ 53 He attributes this efficiency to an abolition of plaintiff’s rights in some cases, whereby in the District Court and the Supreme Court, the court is able to offer a hearing date almost as soon as the parties are ready. 54 Despite the benefits of case management in contributing to greater timeliness, it must be recognised that some experts and commentators see case management as an ‘intrusion into the right of a litigant to pursue their own case as they saw fit’. 55 This notion that case management inappropriately intrudes into the adversarial system and unnecessarily burdens litigants, is further evidence of the sensitive balance required in addressing aspects such as timeliness, whilst ensuring the preservation of the course of real justice, as noted above in relation to interlocutory processes and the public interest. To this end, to ensure fairness and ‘intrusion’ only where absolutely necessary, case management must only be applied to cases which have been carefully analysed and identified according to established guidelines and principles. 56 It should also be noted that case management may not necessarily be adapted to fit the circumstances of a particular case and may be oriented towards more generic time standards. The variation in approach in different courts and tribunals can mean that in some jurisdiction a ‘one size fits all’ approach can be used (with exceptions) whilst in other jurisdictions more individualised approaches to case management exist. C: Innovations in Timeliness: Addressing Delay The elements which define contemporary delay can also relate to areas of innovation. That is, increasingly, information technology and electronic support, proactive intervention and management including case management systems as well as ADR have been considered as 51 Supreme Court of New South Wales, Common Law Division, Practice Note SC CL 5, 5 December 2006; McClellan, above n 20, 189. 52 Ibid. 53 Ibid 183. 54 Ibid. 55 Ibid 188 and see comments of J J Watling, in G Wallace, ‘Speedier Justice (and Trial by Ambush)’ (1961) 35 Australian Law Journal 124, 143-4. 56 McClellan, above n 20, 183. 55 mechanisms which might be harnessed to pursue a more efficient justice system and enable time standards to be met. At the Timeliness in the Justice System: Ideas and Innovations Forum hosted by the Australian Centre for Justice Innovation and the Australasian Institute for Judicial Administration (‘Timeliness Forum’), at Monash University in May 2014, many delegates, including judges, reflected on the focus on time standards and noted that earlier triaging or ‘streamlining’ and even abolishing of court processes in some disputes, might ensure speedier hearings. For example, it was suggested that hearings ‘on the papers’ could be used more frequently. Other ideas for innovation to address and promote timeliness in the justice system, which arose from the Forum are as follows: 1. Judicial leadership is critical in supporting change in court and dispute resolution cultures.57 2. Leaders of justice organisations and agencies need to be more skilled in information and communications technology to understand how it is and can be used.58 3. Self-help, information, triage and other front-end loading (by way of ‘early’ action) should be employed in order to avoid entering the formal court or tribunal system if possible.59 4. The types of matters that end up in the court system need to be carefully considered. Arguably some disputes could be dealt with at an earlier time and in the pre action environment.60 5. There is requirement for clarification and emphasis of the principle and obligations relating to ‘genuine effort’. That is, expectations across the system should be clear and better understood.61 6. Judges needs to engage with the profession and litigants to ensure obligations are met, that sanctions are imposed on those who don’t comply, and address issues arising out of the litigation culture.62 57 Judge Kevin Burke, ‘Achieving Timeliness Requires Judicial Leadership: A Perspective form the United States’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 58 Simon Cohen, ‘How Technology has Enabled Timeliness at the TIO’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 59 Darin Thompson, ‘Civil Resolution Tribunal’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 60 Jeremy Gormly, ‘Obligations: The Nine Other Cases’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 61 Andrew Bickerdike, ‘Conduct Obligations in Family Law ADR: History, Current Practice, Future Possibilities’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 62 John Dixon, ‘Reflections on Recent Cases and s 29 of the Civil Procedure Act 2010 (Vic)’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 56 7. There is a need to consider the ‘invisible’ determinants of delay including macro- economic factors and consideration must be had as to instances where delay is beneficial to parties or they have a vested interest in delaying. These must be addressed.63 8. Consideration should be given as to whether courts can be subject to independent examination and whether in general, courts are made to become open to examination (potentially challenging the notion of the separation of powers).64 9. Better data collection, data analysis and data management and maintenance is required in courts and tribunals, in order to ensure appropriate measures can take place to reduce delay in appropriate cases.65 10. There is a need for qualitative assessment which requires engagement with researchers, auditors and statisticians across the sector.66 11. Innovation should be supported by frameworks and organisations to ensure that systematic innovation, rather than ad hoc innovation takes place.67 12. Specialist court and tribunal lists and subdivisions should be introduced as well as the consideration of steps required for each of those case types. These should be supported by practice notes which set expectations for practitioners and disputants, and can be updated instantly.68 The suggested innovation areas can be linked to the material noted in the recent report of the Productivity Commission that also articulates the benefits and drawbacks of the court system by reference to the legal principles of more formal court and tribunal systems which allow a degree of certainty of outcome versus the risks of costs, delays and uncertainties. 69 D: Data Collection Across the Broad Justice Sector It is clear that innovation to support timely dispute resolution across the justice sector largely depends on an essential first step, which is the systematic and comprehensive collecting of qualitative as well as quantitative data. That is, the gathering of data, relating to every matter which contextualises the dispute in relation to the complexity, the characteristics of the 63 Cashman, Peter, ‘Welcome and Introduction, Timeliness in the Justice System: Ideas and Innovations’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014), citing Kim Economides, Alfred Haud and Joe McIntyre, ‘Are Courts Slow? Exposing and Measuring the Invisible Determinants of Case Disposition Time’ (Economic Discussion Paper No 1317, University of Otago, November 2013). 64 Ibid. 65 General comment made at the Timeliness in the Justice System: Ideas and Innovations Forum (Australian Centre for Justice Innovation Monash University Law Chambers, 16-17 May 2014). 66 Martin, above n 27. 67 Nerida Wallace, ‘Timeliness from Above: Latest Ideas, Resourcing and Organisation’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 68 Judge Philip Misso, “The County Court of Victoria: Timeliness’ (Speech delivered at the Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014). 69 Productivity Commission (Cth), Access to Justice Arrangements: Draft Report (2014). 57 disputants, the costs involved and the area within which the dispute occurs (for example, tenancy, personal injury or employment). Qualitative data must be kept consistently and across the sector, to allow comparisons and contrasts which will inform further insight into the determination of whether delay in a particular circumstance is avoidable, or not. On this basis, it can then be used to underpin the design of innovations such as those identified above, which should be designed to minimise delays, where delay is actually avoidable. The data collection process is important not only in the context of the formal court and tribunal sector but also across the broader justice sector. For example, ADR is used in many different contexts and can occur as a result of a diverse array of triggers, including court referral, regulatory schemes or through agreements. At present, the impact of ADR on timeliness and activity in the court and tribunal sector is less clear than the impact in the external ADR environment. 70 This is partly because of the limited and often inconsistent court data and statistics, which is also impacted by the fluctuation in the rate of litigation caused by significant legislative changes that have limited litigation in some areas (for example, in the personal injury area) and increased litigation in others (wills and estates). 71 However, in the early 1980s, numerous court-led ADR initiatives (for example, the Spring Offensive and the portals scheme) undoubtedly cleared backlogs within courts. 72 The continuing use of ADR has also meant that many civil matters currently commenced within courts and tribunals are likely to be resolved through an ADR process and in less time than through a fully litigated hearing. 73 It should however be noted that the use of time standards to measure timeliness has meant that questions about the reasonableness of delays, or whether ADR processes could have occurred at an earlier time are obscured by reporting which focusses on the percentage of cases resolved within a 12 or 18 month period. 74 An important aspect in considering the effect of ADR on timeliness in relation to the resolution of disputes, is the consideration of when ADR is undertaken over the life of the dispute. One study has suggested a curvilinear relationship between when the mediation occurs and the duration of dispute. 75 This has shown that on average, mediation shortens dispute durations and there are circumstances when this leads to shortening of dispute duration and times when this leads to the lengthening of dispute durations. That is, initially, mediation can be successful in ending dispute, however, very quickly, the effects drop substantially and the expected duration increases. After the dispute has then continued for some period, mediation begins to work toward shortening the dispute time again. 76 70 Sourdin, above n 18. 71 Ibid. 72 Ibid. 73 Ibid. 74 Ibid. 75 PM Regan and AC Stam, ‘In the Nick of Time: Conflict Management, Mediation Timing, and the Duration of Interstate Disputes’ (2000) 44(2) International Studies Quarterly 239, 253. 76 Ibid. 58 Source: P M Regan and A C Stam, ‘In the Nick of Time: Conflict Management, Mediation Timing, and the Duration of Interstate Disputes’ 44(2) International Studies Quarterly 239, 253. Despite the evidence which suggests that ADR generally can assist with decreasing the time it takes for a dispute to resolve (whether within the court and tribunal or outside of it), there are many elements which can obscure the findings in relation to timeliness and these primarily relate to the lack of system wide data. The lack of data also makes it difficult to examine whether obligations and requirements that have been placed on disputants to act in a ‘timely’, ‘efficient’, or ‘effective’ manner have been effective. In this context obligations also include requirements to act in particular ways if litigation is commenced. The obligations placed on various stakeholders through legislative reform, court-based initiatives and other reforms are often directed at fostering a culture that supports timely dispute resolution and finalisation 77 . Sometimes, obligations can be supported by cost sanctions – for instance, costs may be awarded against practitioners in respect of a failure to comply with obligations (see previous discussion). 78 The measures relating to the legal environments mentioned above have been referred to as a ‘cultural change’ exercise and in effect, this forms part of the framework necessary to change approaches to timeliness and civil justice. 79 The continuing lack of data issues make it difficult to 77 Sourdin, The Timeliness Project , above n 3. 78 See Civil Procedure Act 2005 (NSW). Under s 99, the court may take into account a legal practitioner’s failure to comply with requirements requiring the parties to assist the court to further the just, quick and cheap resolution of the real issues in the proceedings: Kendirjian v Ayoub [2008] NSWCA 194 (14 August 2008); Sourdin, The Timeliness Project, above n 3. 79 Sourdin, The Timeliness Project, above n 3. 59 determine how and whether these approaches have been effective and if not, what could be introduced to support cultures that foster timely approaches to dispute resolution. V: CONCLUSION AND FUTURE DIRECTIONS The nature of delay in the current justice environment is contingent on many aspects and mechanisms utilised by the modern justice system. These elements include information technology and electronic support, proactive intervention and management including case management systems as well as (ADR) for the resolution of civil, family and other disputes. The question of whether justice delayed is justice denied appears to depend on whether delay is inappropriate, out of proportion or avoidable. Proportionality and appropriateness of time taken to provide an outcome for disputants is said to form part of the definition of timeliness, as per the definition above. The discussion about delay and timeliness highlights some of the issues which are being and have been actively considered by stakeholders, commentators, courts and other justice actors. Many innovations have been directed at enhancing timeliness, where implemented with supporting mechanisms and sufficient resources, they appear to support a more efficient and proportionally timed justice experience for users. However, there are some challenges that must be surmounted in order to apply these systems (for example a lack of resources as well as the lack of consistent qualitative data about disputes), and in some cases there must be careful consideration as to the appropriateness of speedier process, versus other important interests (for example, public interest or other justice issues). First and foremost, better data collection and maintenance is required to provide the fundamental material for analysis as to what is avoidable and what is unavoidable delay. Only once this contextualisation is available, can innovations then be more logically applied and extended, to ensure that disputes can be resolved as quickly as possible, and with timelines that are appropriate, depending on the complexity and other characteristics of that dispute and the disputants. In addition, it will be important to ensure that there is an appropriate distinction between the concepts of time lapse and delay and that case management and other mechanisms are employed only in appropriate cases, where the delay is ‘avoidable’. Some commentators have suggested that the notions of ‘avoidable’ and ‘unavoidable’ are value laden concepts and must not be equated with what is warranted and what is unwarranted to ensure a meaningful and fair analysis of what is ‘avoidable’ or not 80 . Further, it is imperative that a balance is struck between timelines and quality of the justice experience and this can only be measured quantitatively, by engaging with, and hearing the voice of disputants and participants. Some commentators have suggested that in some instances, delay in some courts and tribunals might be inevitable, or at least are so at the moment due to a lack of court resources. As a result, other options for resolution, such as ADR may be increasingly recognised as a more efficient way to resolve many disputes. However clearly this is not a complete answer, a strong and timely 80 Arie Frieberg, comment made at Timeliness in the Justice System: Ideas and Innovations Forum, Monash University Law Chambers, 16-17 May 2014. 60 courts based system shapes the broader ADR sector and decision making across the community by shaping parameters and defining rights. Where judicial hearing and resolution of disputes takes place there needs to be recognition that this can be a time consuming and costly exercise. 81 In order to support public confidence in the justice system and the promise of timely justice, future directions must be ultimately geared toward the support required by justice agencies as well as the interests of disputants and participants in the justice system. 81 McClellan, above n 20. 
work_hkzvhkarkngebhfcb4w5suj7na	----	BOOK REVIEW 532 Notices of the AmericAN mAthemAticAl society Volume 67, Number 4 Emille Davie Lawrence is a term associate professor of mathematics and statistics at the University of San Francisco. Her email address is edlawrence@usfca.edu. Communicated by Notices Book Review Editor Stephan Ramon Garcia. For permission to reprint this article, please contact: reprint-permission @ams.org. DOI: https://dx.doi.org/10.1090/noti2062 a variety of courses with the essays and modules written by math faculty who have experience on the topic. I was happy to see that the authors took the time in the introduction to describe exactly what is meant by “teaching mathematics for social justice”: all mathematics instruction that aims to improve human well-being. Who could possibly deny the importance of improved human well-being!? This preemp- tively thwarts any social justice eye-rolling as well as sets the tone for the book. They also give the reader advice on how to use the text and extend an invitation to reach out to the contributing authors directly. The first essay is by Kira Hamman, and she is the only contributor who has both an essay and a module in the book. In “Mathematics in Service to Democracy” she out- lines how she had an aha moment after seeing people’s reaction to social disparities in New Orleans after Hurricane Katrina. She writes that she came to a personal realization that teaching mathematics must be about more than teaching students the chain rule, for example. We have a responsibility to help build an informed, civically engaged society. As a result, she developed courses on mathematics and democracy and quantitative information in the media. She spares all detail of the courses; rather, she stresses the importance of quantitative literacy in the K–16 system. Dave Kung makes a similar case for designing a math class to promote a mindful citizenry in “Math for Social Justice: A Last Math Class for Responsible Citizens.” He is guided by the question, “What mathematics do I want the person next to me in the voting booth to understand?” (motivated by an exchange in an Obama-McCain political debate). My favorite essay is from Victor Piercey. In “Quantitative Ethics,” Piercey describes his experiences in developing courses surrounding the moral and societal implications of how we use quantitative information. Piercey writes that in his course he challenges the students to place themselves into the decision-maker role instead of the consumer role by posing should questions: Should lenders reveal the implications of continually making only the minimum Mathematics for Social Justice: Resources for the College Classroom by Gizem Karaali and Lily S. Khadjavi I think we can all agree that we are currently living in a time of tectonic social and political shifts. Movements like #MeToo and Black Lives Matter have rightfully increased popular awareness of issues of inequity and marginal- ization. In the immortal words of Bob Dylan, “The times, they are a-changin’.” And for good reason. I’ve noticed some similar shifts in mathematics over the past few years. Not that connecting mathematics and social justice is a new concept, as this book attests by paying homage to Bob Moses’s Radical Equations: Math Literacy and Civil Rights in its first sentence. But one can also not deny the recent swell in scholarly activity surrounding the subject, which is why Mathematics for Social Justice: Resources for the College Classroom is such a timely and important tool. The cover of the book woos you, with its array of fists of different hues holding pencils in front of a backsplash of mathematical equations. The sheer brilliance of this image, which conjures resistance, unity, and mathematical rigor all at once, should not be lost on anyone. The contents of the book are divided into three parts: an introduction to the book by the authors, five essays that make the case for introducing topics of social justice into the math curricu- lum, and fourteen course modules that can be adopted into Mathematics for Social Justice Reviewed by Emille Davie Lawrence A M S/ M A A P re ss , 2 01 9 , S o ft co ve r, 2 7 7 p ag es . IS B N : 9 7 8 -1 -4 70 4 -4 9 2 6 -1 Book Review April 2020 Notices of the AmericAN mAthemAticAl society 533 You will find suggestions for homework assignments, worksheets, group projects, discussion topics, paper topics, final projects, and much more throughout. The book is also full of outside resources like readings, videos, websites, and such to make it easier to expand the modules in different or deeper directions. The utility of Mathematics for Social Justice: Resources for the College Classroom is undeniable. With this book, the editors and contributors have provided the mathematics community a toolkit for challenging students to use math- ematics to improve our world from many different angles. I would have liked to see a module focusing on overpolicing and criminal justice, since Khadjavi herself is versed in this topic, but perhaps that will come in the second volume that Karaali and Khadjavi are working on, Mathematics for Social Justice: Focusing on Quantitative Reasoning and Statistics. The current volume effectively makes the case that courses that include social justice themes should be a part of the curric- ulum in every math department in our country. I, for one, am personally energized and excited to implement these ideas at my institution. With this book as a guide, we can not only teach our students how to do math but also how to use math for the common good. Credits Author photo is courtesy of the author. payments on credit card debt? Should effective annual interest rates be required by law to be disclosed to consum- ers? Should environmental impacts to the community be considered when a company opens a store? How should the government intervene in Ponzi schemes? Students learn how questions like these are informed by data analysis and mathematical modeling. This ethical point of view feels to me like a fresh spin on things. Even the term quantitative ethics juxtaposes two ideas that I’d never before realized were compatible. Reading his essay gave me that “of course this works” feeling, like eating peanut butter and jelly for the first time. Of all the essays, Lisa Marano’s essay is the one I didn’t realize that I needed. She outlines in great detail how she has over the years dealt with student resistance to uncom- fortable topics. Since finding dy/dx is pretty noncontrover- sial, most math professors are unpracticed in dealing with issues in the classroom that stir up emotion. She gives class- room policies, assignment suggestions, and other general management strategies in preparation for “vocal, silent, and absent” resistance from students. Most effective is her use of real-life anecdotes to suggest how to guide students in heated discussions. One powerful example was how she dealt with some students’ personal trauma surrounding credit card debt. She explains that as the conversation began to unfold, she scrapped her planned discussion and yielded to the needs of the students. This is a reminder that since emotions can run high when digging in to social issues, being in the moment is key. Then come the modules. These are prepackaged and ready-to-go lesson plans that can be implemented in the classroom. I was really happy to see such a nice array of topics. There were definitely some usual suspects, such as modules on voting methods and electoral districting. How- ever, the majority of the topics feel cutting-edge and mod- ern, ranging from the graph theory of human trafficking to modeling the rise in acceptance of same-sex relationships. Although on different themes, every module has the same structure. Each starts with an abstract and is then divided into six sections: Mathematical Content, Context/Back- ground, Instructor Preparation, The Module, Additional Thoughts, and an Appendix. Having this uniformity is quite helpful to the reader who wants to compare one module to another. However, I would have also liked to see some note on the intended duration of each module right up front, perhaps in each abstract. Some modules seem more appropriate for just a handful of class meetings, while others could be implemented over the course of an entire academic term. Readers are left to figure this out for them- selves. The cherry-picking reader will be happy to know that in the postscript the modules are sorted by mathematical content, such as college algebra, quantitative reasoning, and introductory statistics, and then again by social justice themes, such as finance, environmental justice, and labor. The content of each module is pedagogically thorough. Emille Davie Lawrence 
work_hl5g73znanayxpgmid2nys7pm4	----	jopp_205.qxd Responsibility and Global Labor Justice* Iris Marion Young Political Science, University of Chicago Socrates thought that, for the agent himself, doing wrong is more harmful than suffering wrong. Well, so long as it is merely a matter of ‘wrong’ done or suffered, thus a matter essentially existing in the perception of the parties, the proposition may stand. . . . But the objectified wrong creates a new, external causality, and we are inquiring about its moral harm to the suffering side. And we ask the question not, as Socrates did, for the single actions committed and suffered here and there, but for the constant effects on the victims of a system of justice. And there the main point is that, in a system of ruthless exploitation, those objective effects mean abject poverty with all the degradation, external and internal, which this entails. – Hans Jonas, The Imperative of Responsibility DO people in relatively free and affluent countries such as the United States,Canada or Germany have responsibilities to try to improve working conditions and wages of workers in far-off parts of the world who produce items those in the more affluent countries purchase? In recent years the “anti- sweatshop” movement has gained momentum with arguments that at least some agents in these relatively free and affluent countries do have such responsibilities. They have held rallies and press conferences, staged sit-ins and hunger strikes, all with the aim of convincing consumers, corporate executives, union members, municipal governments, students, and university administrators in the United States or Europe to acknowledge a responsibility with respect to the working conditions of distant workers in other countries, and to take actions to meet such responsibilities. Those to whom these appeals are made often find them absurd. We who go to work and school here in Chicago have no connection to workers in Bangkok or Manila or Tegucigalpa. However awful the conditions under which they work, we have not caused them, and we are not in control of the factors that would The Journal of Political Philosophy: Volume 12, Number 4, 2004, pp. 365–388 © Blackwell Publishing, 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. *Early versions of this essay were presented to the Central Division of the American Philosophical Association, the fellows’ seminar at the American Bar Foundation, the political theory workshop at Nuffield College, Oxford University, the political theory workshop at the London School of Economics, and the workshop of the University of Southern California Law School. I am grateful to the audiences who on those occasions asked hard questions. I am also grateful to the following individuals for their comments on earlier drafts: David Alexander, Jeremy Bendik-Keymer, Cecile Fabre, Robert Goodin, Jeffrey Isaac, Alison Jaggar, Melissa Lane, Liam Murphy, Thomas Pogge, Robert Pollin, Bill Scheuermann, Laurel Weldon, and anonymous reviewers for the Journal of Political Philosophy. Thanks to Matteo Colombi and Victor Muniz-Fraticelli for research assistance. remedy them. Thus it makes no sense to claim that we have moral responsibilities to try to change them. In this article I theorize a conception of responsibility that can make sense of the claims of the anti-sweatshop movement, or indeed, any claims of responsibility that members of a society might be said to have toward harms and injustices of distant strangers. Objectors to the anti-sweatshop movement are right to argue that these claims make little sense within a dominant conception of responsibility as liability. I propose and elaborate a different conception of responsibility, political responsibility, to correspond to these claims. I. CLAIMS OF RESPONSIBILITY FOR WORKING CONDITIONS Many of the goods sold by some of the most high-profile retailers in the United States, Canada, the United Kingdom, Japan and Germany are made in small factories far away in the Philippines, Sri Lanka, Guatemala, and other countries whose governments offer tax and other incentives to foreign investors. Others are manufactured in small production facilities in the United States employing immigrants. The American or Japanese brand name companies rarely operate the factories themselves, but rather place highly specified orders with other companies, who themselves often contract out the work to local entrepreneurs. Education and publicity about conditions under which much apparel sold in affluent countries is made in less developed countries has led to awareness that similar conditions in often illegally operating apparel manufacturing facilities exist in many cities closer to home—in Chicago, Los Angeles or New York, for example. The arguments I make here about responsibility apply to relations between strangers in the same country or city as much as transnationally. They are part of a connected global apparel industry system that produces both. In this paper I nevertheless concentrate the argument on transnational connection, because many people question that responsibility extends so far. It is not hyperbole to label these factories “sweatshops.” The vast majority of garment workers worldwide are women, often young women, who are readily accessible and relatively pliant from the employers’ point of view. Shifts are commonly at least ten hours, six days a week, and forced overtime is common. Factories usually have strict rules, which often include restrictions on talking and going to the bathroom, and supervisors are often abusive as a matter of policy. Working conditions are often dangerous, with poorly ventilated, overheated spaces and little protective equipment. Women workers often suffer sexual harassment or verbal abuse. Workers who protest their exploitation or attempt to organize unions are typically intimidated, beaten, or fired. Wages for these workers are often below the local legal minimum wage, and even when they are not, the wages fall below what the workers need for subsistence. Health benefits and pension plans are a fantastic dream, and there is no job security. Indeed, workers are often defined as temporary workers just so their employers can 366 IRIS MARION YOUNG legally escape the requirements of labor laws. According to a report from the International Labor Organization, dozens of millions of workers worldwide toil under such conditions.1 In the mid 1990s in the United States and Europe, activists began campaigns targeted at consumers of some of these products, to urge them to think about these far-away workers, not buy the products, and put pressure on the retailers that contracted their manufacture to change the working conditions. Leafleting and demonstrations at outlets of Gap, Disney, Nike and Victoria’s Secret caught the attention of some activists and consumers, and eventually succeeded in moving corporate leaders to take some actions in response, although some have described these as cosmetic. Initially, however, the global companies’ response was to deny responsibility for the workers, saying that they did not themselves operate the factories in which the goods were produced. In the meantime, students at colleges and universities raised questions about the conditions under which the garments worn by their sports teams and sold in their bookstores are made. They called upon their university administrations to terminate contracts with sportswear companies that refused to take responsibility for such conditions. The height of the student anti-sweatshop movement came during the 1999–2000 academic year, when student groups on hundreds of campuses held rallies and campus education events, occupied administration buildings and staged hunger strikes. Most of the student groups were demanding that their universities join the Workers’ Rights Coalition, a student-initiated independent organization to monitor working conditions in apparel factories overseas, and to put pressure on manufacturers to change poor conditions. Many students and college administrators responded to these demands with incredulity.2 It is not the business of universities and their students to get involved in labor regulation, especially of conditions so remote. We are not the cause of the injustice the workers suffer, and we do not control those who are. The owners and managers of the factories clearly have a primary responsibility for the treatment workers receive, the hours they are required to work, their wages and benefits, and the safety of the work environment. They make specific cost minimization decisions that result in sweatshop conditions, they make the rules that prohibit bathroom breaks or days off, they lock the doors and verbally abuse the workers, they or those they hire threaten and beat workers who try to organize unions. If there are any agents to blame for the plight of these workers, surely the owners and managers must be first in line. Inasmuch as its primary recommendation for action to improve the workers’ RESPONSIBILITY & GLOBAL LABOR JUSTICE 367 1For an account of working conditions, see Ellen Israel Rosen, Making Sweatshops: The Globalization of the U.S. Apparel Industry (Berkeley: University of California Press, 2002), ch. 2; Edna Bonacich and Richard P. Appelbaum, Behind the Label: Inequality in the Los Angeles Apparel Industry (Berkeley: University of California Press, 2002), esp. ch. 6; Naomi Klein, No Logo (New York: Picador, 1999), esp. ch. 9. 2Lisa Fetherstone, Students Against Sweatshops (London: Verso, 2000). situation is that universities and corporations should monitor factory conditions and pressure the owners and managers to change their policies, the anti- sweatshop movement recognizes that those agents have a direct responsibility. Such a rejection of movement claims of the responsibility of university administrators and consumers assumes a liability model of responsibility. On the liability model, it is indeed implausible to hold these remote agents responsible for the workers’ situation. The anti-sweatshop movement must implicitly be relying on another conception of responsibility. My project here is to construct a conception of responsibility that corresponds to their intuitions, which I call political responsibility. My argument is not that the concept of political responsibility should replace that of a fault or liability model, but should supplement that model in analyses of responsibility in relation to structural processes. The most common model of assigning responsibility derives from legal reasoning to find guilt or fault for a harm. Under the fault model, one assigns responsibility to particular agents whose actions can be shown as causally connected to the circumstances for which responsibility is sought. This agent can be a collective entity, such as a corporation, but when it is that entity can be treated as a single agent for the purposes of assigning responsibility.3 The actions found causally connected to the circumstances are shown to be voluntary. If a candidate for responsibility can successfully show that their causal relation to the circumstances was not voluntary, that they were coerced or otherwise did not evince free choice, then their responsibility is usually mitigated if not dissolved. When these conditions do exist, however, it is appropriate to blame the agents for the harmful circumstances. A concept of strict liability departs from a fault or blame model in that it holds a person liable for an action that caused a harm even if they did not intend the outcome, or holds a person or institution liable for a harm caused by someone under their command.4 I include both fault liability and strict liability in the liability model of responsibility, because they share other features that I will use to distinguish this model from the model of political responsibility. The liability model is primarily backward- looking in its purpose; it reviews the history of events in order to assign responsibility, often for the sake of exacting punishment or compensation. Assigning responsibility to some agents, on this model, finally, usually also has the function of absolving other agents who might have been candidates for fault. To find this person or group of persons guilty of a crime usually implies that others who were accused are not guilty. 368 IRIS MARION YOUNG 3See Peter French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984). 4On concepts of fault and liability see, for example, Joel Feinberg, “Collective responsibility,” Doing and Deserving: Essays in the Theory of Responsibility (Princeton, N.J.: Princeton University Press, 1970), pp. 222–51; Tony Honoré, “Responsibility and luck: the moral basis of strict liability,” Responsibility and Fault (Oxford: Oxford University Press, 1999), pp. 14–40. Because their decisions and actions are the immediate and repeated cause of factory conditions, the owners and managers of these factories are certainly the prime candidate for blame if these conditions violate minimal standards of decency and human rights. Local firms that directly buy from these enterprises, who presumably are the most likely to know about such violations, probably should also be held responsible. When confronted with accusations that they wrongly exploit and oppress their workers, however, some of these agents are likely to try to mitigate their responsibility by appeal to factors outside their control. They may claim that they have little choice about the wages they pay, and cannot afford to give workers time off or invest in better ventilation and equipment. They operate in a highly competitive environment, they say, where other operators constantly try to undercut them. They can stay in business only by selling goods at or below the prices of worldwide competitors, and they can do that only by keeping labor and other production costs to a minimum. Apparel dealers who sell to American wholesalers are looking for the best deal, and they will take their business elsewhere if these employers raise their prices. Surely it cannot be better for the workers that they have no job at all, these employers are likely to claim.5 Such an appeal to mitigating circumstances can only go so far, of course. No employer can legitimately excuse making people work sixteen-hour days, refusing them bathroom breaks, or beating them, as necessary for keeping the costs of production competitive. Nevertheless, there is a good measure of truth to the claim that these employers themselves operate under considerable constraints. Many of these factories do operate on the edge of solvency, in a highly competitive environment. Under such circumstances of anarchistic competition, labor rights advocates might turn to the states in whose jurisdictions the factories operate. A typical justification for state-enforced labor standards appeals to the need to maintain a level playing field among competitors. If there is a human rights floor below which wages and working conditions should not be allowed to fall, the state is the proper agent to guarantee such a floor through regulation. In this way those employers who wish to be decent to workers need not fear being undersold by more unscrupulous employers. Certainly the states in which sweatshops operate must be blamed for allowing them to exist. Many of these state agencies are inept and corrupt, and often enough some of their officials directly profit from the system that exploits their poor compatriots. As the movement uncovers sweatshops in the United States and other states with supposedly high labor standards and good enforcement processes, it should certainly blame these agencies for not doing their jobs. Some states not unreasonably say, however, that they themselves are under severe constraints that prevent them from improving working conditions. Many RESPONSIBILITY & GLOBAL LABOR JUSTICE 369 5See Rosen, Making Sweatshops, ch. 11 and Bonacich and Appelbaum, Behind the Label, chs 2 and 5 for an account of constraints on actors in the system. governments of less developed countries have indirectly encouraged these very practices by constituting special export processing zones whose factories are exempt from taxation and regulation that apply to other enterprises in the country. We desperately need investment and jobs, they say. To get them we are forced to compete with other poor states to promote a “favorable” investment climate, which includes low taxes and minimal regulation. To avoid or pay down balance of trade deficits they need companies that produce for export. They have never had a strong enough public sector properly to monitor and enforce compliance with their regulations, and it is difficult to create one with their low tax base. Their bureaucrats and inspectors are overworked and underpaid themselves, and thus easily succumb to bribe offers. Pressures for reduced public spending by international financial institutions such as the International Monetary Fund have further weakened public sector capacity. Owners, managers and local states are the agents that should be held liable for superexploitative and oppressive working conditions in which many items consumed by people in North America and Europe are produced. When these agents claim that they operate under constraints beyond their control that give them few options to operate factories differently, however, there is some basis for their excuses. They point to structural economic and political processes involving actors and institutions both inside and outside the countries that host the factories, whose processes and effects both enable and provide incentives for some actions at the same time as they block or constrain alternatives. The factories where the workers labor operate within a dense system of investment, production, credit, exchange and profit which connect direct producers to far away consumers, and link local brokers and middlemen to multinational corporate marketing plans. Activists in the anti-sweatshop movement claim that we relatively affluent people in the global North share responsibility for the fate of the faraway workers because these structural processes connect us to them. What does such connection mean and why does it bring responsibilities? What is the nature of these responsibilities? In the next section I will build on analyses some moral theorists of international justice have offered of transnational connection that bring with them moral responsibilities. Then I will explain how these are political responsibilities, as distinct from liabilities, and explain differences in these two concepts of responsibility. In the final section I will explain how the model of political responsibility might be applied to reasoning about how particular agents should respond to structural injustices. II. INTERNATIONAL JUSTICE Activists’ claims that university administrators, corporate executives, students and consumers in Europe and North America have responsibilities toward workers in faraway lands excite controversy partly because they presuppose a strong notion of moral responsibility between agents in different nations 370 IRIS MARION YOUNG and political communities. Many people reject the idea of such transnational responsibilities, believing that the requirement to rectify injustice toward others extends only to those who live within the same political jurisdiction and/or share a sense of common national membership. Are there grounds for the assumption that some obligations of justice extend globally and that therefore better-off people in some parts of the world have responsibilities toward globally worse- off people wherever they are? I will build on arguments of Onora O’Neill and Thomas Pogge that there are.6 Onora O’Neill argues that the scope of an agent’s moral obligation extends to all those whom the agent assumes in conducting his or her activity. Each of us acts according to interests and goals we set within the frame of specific institutions and practices, within which we know others act. Our actions are partly based on the actions of others, insofar as we depend on them to carry out certain tasks, and/or insofar as our general knowledge of what other people are doing enable us to formulate expectations and predictions about events and institutional outcomes that affect us or condition our actions. In today’s world of globalized markets, interdependent states, rapid and dense communication, the scope of the actors we implicitly assume in many of our actions is often global. The social relations that connect us to others are not restricted to nation–state borders. Our actions are conditioned by and contribute to institutions that affect distant others, and their actions contribute to the operation of institutions that affect us. Because our actions assume these others as a condition for our own actions, O’Neill argues, we have made practical moral commitments to them by virtue of our actions. While it is not possible to trace how each person’s actions produce specific effects on others, because there are too many mediating actions and events, we have obligations to those who condition and enable our own actions, as they do on us. There is an asymmetry in these obligations, however, O’Neill argues, insofar as some people are rendered more vulnerable to coercion, domination or deprivation by the institutional relations. While everyone in the system of structural and institutional relations stands in circumstances of justice that give them obligations with respect to all the others, those institutionally and materially situated to be able to do more to affect the conditions of vulnerability have greater obligations.7 Important for O’Neill’s analysis and the use I want to make of it, these presuppositions of activity need not be present to an agent’s consciousness in order to hold as assumptions. These relationships are objective. Although most of us are often unaware of or indifferent to the situation of those whose activities RESPONSIBILITY & GLOBAL LABOR JUSTICE 371 6I have discussed the same authors’ arguments at some more length and in a wider context of global justice in Inclusion and Democracy (Oxford: Oxford University Press, 2000), ch. 7. 7Onora O’Neill, Faces of Hunger (London: Allen and Unwin, 1985); Towards Justice and Virtue (Cambridge: Cambridge University Press, 1996), p. 99; compare Robert Goodin, Protecting the Vulnerable (Chicago: University of Chicago Press, 1985). condition our own options for action, this does not erase the potential obligations we have toward these others. It is not uncommon for agents to deny the connection to others their actions assume, but such efforts at bad faith are pragmatically inconsistent. If I implicitly depend on anonymous others to fulfill their roles or occupy their statuses as I conduct my business, I cannot deny this connection if they should make claims upon me to redress injustices they claim to suffer in the institutions we inhabit together. Moral critique of both individuals and institutions consists to a significant extent in bringing to consciousness the assumptions about others that agents make in their activities, and exposing the inconsistency between these assumptions and the denials of connection.8 This method of discovering responsibility to others applies easily to the context of apparel purchase. When I buy a sweatshirt or a pair of shoes, my action presupposes the actions of all the persons connected with the process that transforms raw materials into clothes and brings them to my local store. When I look for low-priced clothes, I presuppose the actions of those who make decisions to minimize costs of production, decisions like failing to equip garment factories with smoke detectors and sprinklers. On O’Neill’s account, because I am connected to all these people through my consumer actions, I have obligations of justice toward them. I cannot escape these obligations by claiming that I have not participated in design of the relations of production and distribution, nor by saying that I do not know where or who all these people are. I know that they are others elsewhere, that I am connected with them in these institutions and processes, and that especially workers in these processes are vulnerable to harm from employers and others. My first responsibility may be to acquire more specific knowledge. As I will discuss shortly, I share responsibility with the many others who also contribute by their actions to the processes that connect us. Just because I cannot disentangle my particular actions from the complex process in which some people are made particularly vulnerable to deprivation or domination, to identify which specific actions of mine affect which specific individuals in particular ways, I have a relation of responsibility to the process itself. Charles Beitz and Thomas Pogge also offer accounts of the bases of a claim that people within one nation–state have responsibilities of justice toward many people in other nation–states. People in relatively affluent countries act within a transnational system of interdependence and dense economic interaction, which has systemic consequences for the relative privilege and disadvantage that people experience in different parts of the world or within particular locales. The grounds of moral responsibility lie neither in political structures of the nation–state nor in people’s awareness and affirmation of a connection to others, but in the objective systemic institutional relations in which they dwell together 372 IRIS MARION YOUNG 8Towards Justice and Virtue, ch. 4. with distance to others. Pogge in particular argues that persons who live in more affluent industrial parts of the world act within a common institutional scheme with persons who live in less industrialized parts of the world. The global poor live within a world wide states system based on internationally recognized territorial domains, interconnected through a global network of market trade and diplomacy. The presence and relevance of shared institutions is shown by how dramatically we affect the circumstances of the global poor through investments, loans, trade, brides, military aid, sex tourism, culture exports and much else. Their very survival often crucially depends on our consumption choices, which may determine the price of their foodstuffs and their opportunity to find work. . . . This does not mean that we should hold ourselves responsible for the remoter effects of our economic decisions. . . . But we must be concerned with how the rules structuring international interactions foreseeable affect the incidence of extreme poverty.9 Later I will argue that some of Pogge’s formulations of the moral relationships between such agents in the global North and some of the world’s poor and working people are somewhat misleading. To summarize so far, these philosophers theorize a complex set of structural relations across the globe which condition the material circumstances and possibilities for action of most of the world’s people. Reciprocal obligations of justice obtain between most if not all of these people not simply because they are human nor because they live under the same political constitution, but because they all depend to some degree on schemes of social cooperation which they presuppose in making their own plans or to which they contribute by their actions. Within this global “basic structure,” however, some people have significantly more power than others, not only over the conditions of their own lives, but also over decisions and processes that affect others. Within the structures, furthermore, some people occupy positions of privilege while others are relatively or absolutely deprived. Samuel Scheffler suggests that facts of global interdependence like these make fundamental features of the common sense conception of responsibility problematic. That common sense conception of responsibility is restrictive; it aims to delimit a relatively circumscribed sphere of circumstances and persons toward which agents have responsibility. This conception tends to restrict responsibility to what individuals themselves do, as opposed to what they fail to prevent. It also tends to restrict responsibility to those persons with whom an agent has special or relatively immediate connection—members of one’s family, one’s coworkers, one’s neighbors, and others with whom one has ongoing interaction.10 A particular phenomenology of agency underlies this conception RESPONSIBILITY & GLOBAL LABOR JUSTICE 373 9Thomas Pogge, “A universalistic approach to international justice,” Internationale Gerechtigkeit und Interpretation, ed. Giuseppe Zaccaria (Munchen: WT Verlag, 2002), Section 2.1; ed. Charles Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1979). 10Scheffler includes members of the same nation–state in the category of these special relationships, but I think this is a mistake. of responsibility, according to Scheffler, which gives experiential primacy to near effects rather than remote effects of action. When “an outcome is the joint result of the actions of a number of people, including ourselves, we tend to see our own agency as implicated to a much lesser extent than we do when we take an effect to have resulted solely from our own actions.”11 This phenomenology of agency and the conception of responsibility it supports, Scheffler argues, does not correspond well to the issues that face moral agents because of the density of communication, economic exchange, technological effects, migration, and political interaction among the world’s people. Because the common sense conception of responsibility, which corresponds in significant ways to what I call the liability model, has little to say in relation to such massive global issues, Scheffler suggests, we are in danger of losing a sense of individuals as bearers of responsibility altogether. What we appear to lack, in other words, is a set of clear, action-guiding and psychologically feasible principles which would enable individuals to orient themselves in relation to larger processes, and general conformity to which would serve to regulate those processes and their effects in a morally satisfactory way.12 I am not convinced that what we need to respond to this predicament is a set of principles to which individuals might look for guidance about what to do in relation to global social processes. Scheffler has nevertheless identified a key problem in contemporary moral theory and practice. People have difficulty reasoning about individual responsibility with relation to outcomes produced by large-scale social structures in which millions participate, but of which none are the sole or primary cause. When these structures are transnational, as many of them are, the difficulty is compounded by a relative lack of regulatory institutions through which these millions might engage in collective action. It is this difficulty that accounts for our continuing to rely solely on a liability model of responsibility for harms, I suggest, as in debates about transnational labor conditions. In the following section I begin to articulate a model of political responsibility which goes some distance toward ways that individuals can think about their responsibilities in relation to global social structures. III. POLITICAL RESPONSIBILITY I have argued that local owners and managers of factories with superexploitative working conditions should be held responsible for those conditions. Their actions causally contribute most directly to the workers’ situation, and they should be blamed for it. I have also argued, however, that workers, owners 374 IRIS MARION YOUNG 11Scheffler, “Individual responsibility in a global age,” Boundaries and Allegiances: Problems of Responsibility and Justice in Liberal Thought (Oxford: Oxford University Press, 2001) p. 39. 12Ibid. and even the nation–states that have jurisdiction over them are embedded in transnational economic structures which connect individuals and institutions in faraway corporate boardrooms and retail outlets to them. These structural conditions provide incentives for setting up and buying from manufacturing operations that violate worker rights. Blaming and punishing a few factory owners, while often appropriate, does not remedy the general problem so long as that incentive structure is in place and sanction is not routine. These economic structures constrain the options of owners and managers in the less developed countries, and implicate many others in the world in the processes that produce those constraints. Because of these connections, activists claim that consumers, corporate executives, university administrators and others in Europe, North America, Japan, and other relatively well-off places have responsibilities toward the working conditions of apparel factories in South Asia, Latin America and elsewhere. This claim only makes sense, I suggested earlier, if the faraway consumers, executives, and administrations bear responsibility in a different sense from the owners and managers of the factories. Earlier I said that the owners and managers are responsible for the working conditions in the sense of liability. The liability model of responsibility causally connects the circumstances for which responsibility is sought with specific actions of particular agents. In this sense the liability model individualizes even when the agent it identifies is a corporate entity. The liability model is backward-looking; it seeks to lay blame for harms that have occurred, often for the sake of exacting punishment or compensation. The many agents whom O’Neill or Pogge would identify as connected with the transnational institutions and structures that help bring sweatshop conditions about have responsibilities for harmful or unjust conditions in a different sense, which I will call political responsibility. Hannah Arendt distinguishes between moral and legal responsibility, on the one hand, which embody what I have called the liability model, and what she calls political responsibility, on the other. On her account, political responsibility is a kind of collective responsibility, and one where the responsibility borne collectively is not dissolvable to the self-conscious collaborative acts of individuals. Whereas responsibility as liability assigns responsibility according to what particular agents have done, on the model of political responsibility individuals are responsible precisely for things they themselves have not done. The reason to assume political responsibility involves not individual fault, but derives from “my membership in a group (a collective) which no voluntary act of mine can dissolve, that is, a membership which is utterly unlike a business partnership which I can dissolve at will.”13 Arendt clearly takes the political community of a nation–state as her paradigm of such a collective. RESPONSIBILITY & GLOBAL LABOR JUSTICE 375 13Hannah Arendt, “Collective responsibility,” Amor Mundi: Explorations in the Faith and Thought of Hannah Arendt, ed. James W. Bernauer (Boston: Martinus Nijoff, 1987), p. 45. We can escape this political and strictly collective responsibility only by leaving the community, and since no man can live without belonging to some community, this would simply mean to exchange some community for another and hence one kind of responsibility for another.14 As a member of such a political community we are bound to acknowledge that we bear responsibility for things our government does in our name or supposedly on our behalf, even though we ourselves have not done those things, and even though the actions may not be connected to any process of authorization that even indirectly links them to us. Arendt seems to think that being members of a national or political community just in itself is the ground of this responsibility. Along similar lines, some political philosophers as well as many political actors distinguish the kind and level of responsibilities people have in relation to one another precisely on grounds of being members of the same nation–state or not. Whereas people owe only the thinnest form of respect and decency to one another across borders, the fact of shared national membership puts special responsibilities on persons to be concerned for the welfare of their fellow countrymen, and that they live together on terms of justice. This manner of viewing responsibilities for promoting justice and the wellbeing of others reasons backwards. If there are denser and more demanding responsibilities between members of the same nation–state than between members of faraway societies, this is because the processes and structures in which they are embedded more tightly connect them, and the consequences of their actions affect the more local others than those far away. Common polities form or ought to form in these situations of dense structures in order that people may collectively regulate those interactions in ways they judge most just. The political responsibilities derive, that is, not from the contingent fact of membership in common political institutions. Instead, the political responsibilities derive from the social and economic structures in which they act and mutually affect one another, and political institutions are an important means of their discharging those responsibilities. Much of the sociological and moral theoretical literature on processes of globalization aims to show that the structural connections among persons in the world have both widened their scope beyond nation–state boundaries and become more dense across these boundaries. To the extent that people here participate in the production and reproduction of structural processes that condition the lives of people far away, however, the sort of political responsibilities that Arendt invokes exist for them in relation to those distant others. While they probably have not intended that the social processes in which they participate and from which they benefit have harmful consequences to 376 IRIS MARION YOUNG 14Ibid, p. 47. others, and they should not be blamed or found guilty for these consequences, they are responsible under a different conception. Despite my disagreement with Arendt on the question of whether the ground of this form of responsibility lies in being members of the same nation–state, I continue to follow her in labeling this political responsibility for the following reasons. As does Arendt in many contexts, I mean by “political” something broader than government. In addition, by politics or the political I am referring to the activity in which people organize collectively to regulate or transform some aspect of their shared social conditions, along with the communicative activities in which they try to persuade one another to join such collective action or decide what direction they wish to take it. The sort of responsibility that anti-sweatshop activists claim that they, their fellow consumers, and specific institutions of manufacture or distribution of goods have is political responsibility in this sense. Now I will detail the features of this conception of responsibility, especially as distinct from the fault or liability model of responsibility. (1) Unlike a blame model of responsibility, political responsibility does not seek to mark out and isolate those to be held responsible, thereby distinguishing them from others, who by implication then are not responsible. Such isolation of the one liable from the others who are not is an important aspect of legal responsibility, both in criminal and in tort law. Because they argue that organizations or collectives of persons can be blamed for harms, as well as individual persons, most accounts of collective responsibility aim to distinguish those who have done the harm from those who have not. In the discussion cited above, Arendt says that political responsibility, on the other hand, is a responsibility for what we have not done. This may be a mystifying and even misleading way of putting the point, which I take to be the following. Many cases of harms, wrongs or injustice have no isolatable perpetrator, but rather result from the participation of millions of people in institutions and practices that result in harms. Endemic large-scale homelessness in an otherwise affluent society might be an example of such an injustice without an identifiable perpetrator. In many cases where perpetrators of specific crimes can and should be identified, moreover, as in the Nazi Holocaust Arendt has in mind, the makers of genocidal policies and those that directly implement them are enabled and supported by wider social structures in which many participate. I have suggested already that the injustices of inhumane labor conditions should be analyzed on these two levels. In the conception of political responsibility, then, finding that some people bear responsibility for injustice does not necessarily absolve others. (2) In a liability conception of responsibility, what counts as a wrong for which a perpetrator is sought and for which he or she might be required to compensate, is generally conceived as a deviation from a baseline. Implicitly we assume a normal background situation that is morally acceptable, if not ideal. A crime or RESPONSIBILITY & GLOBAL LABOR JUSTICE 377 an actionable harm consists in a morally and often legally unacceptable deviation from this background structure.15 The process that brought about the harm is conceived as a discrete, bounded event that breaks away from the ongoing normal flow. Punishment, redress, or compensation aims to restore normality or to “make whole” in relation to the baseline circumstance. A concept of political responsibility in relation to structural injustices, on the other hand, evaluates not a harm that deviates from the normal and acceptable, but rather often brings into question precisely the background conditions that ascriptions of blame or fault assume as normal. When we judge that structural injustice exists, we are saying precisely that at least some of the normal and accepted background conditions of action are not morally acceptable. Most of us contribute to a greater or lesser degree to the production and reproduction of structural injustice precisely because we follow the accepted and expected rules and conventions of the communities and institutions in which we act. Usually we enact these conventions and practices in a habitual way, without explicit reflection and deliberation on what we are doing, having in the foreground of our consciousness and intention immediate goals we want to achieve and the particular people we need to interact with to achieve them. The anti-sweatshop movement well illustrates this challenge to normal structural background conditions. It asks consumers, universities and other institutions that contract with retailers, brand name apparel companies, and many other agents, to reflect morally on the normal and hitherto acceptable market relationships in which they act. It challenges all the agents that are part of the economic chain between the workers who make garments and the people who buy and wear them to bring into question whether “business as usual”, which hitherto has been understood as within the bounds of moral acceptability, should in fact be thought acceptable. (3) Political responsibility, furthermore, differs from a liability model of responsibility in being more forward-looking than backward-looking. Blame and praise are primarily backward-looking judgments. They refer back to an action or event assumed to have reached its terminus. More often the purpose of assigning responsibility as fault or liability is to sanction, punish or exact compensation from them. To be sure, such backward-looking condemnation and sanction may have a forward-looking purpose; we may wish to deter others from similar action in the future, or we may wish to identify weak points in an institutional system that allows or encourages such blameworthy actions, in order to reform the institutions. Once we take this latter step, however, we have left a liability model and are moving toward a conception of political responsibility. The reform project likely involves responsibilities of many people 378 IRIS MARION YOUNG 15See George Fletcher’s discussion of the way that the assignment of criminal liability must distinguish between foregrounded deviations from background conditions assumed as normal. Fletcher, Basic Concepts of Criminal Law (Oxford: Oxford University Press, 1998), chs 3 and 4. to take actions directed at those reforms, even though they are not to blame for past problems. Political responsibility seeks not to reckon debts, but aims rather to bring about results, and thus depends on the actions of everyone who is in a position to contribute to the results.16 Taking political responsibility in respect to social structures emphasizes the future more than the past. Because the particular causal relationship of the actions of particular individuals or even organizations to the structural outcomes is often not possible to trace, there may be little point in trying to blame and exact compensation or redress only from a few who have caused the outcome. The point is not to blame people participating in the institutions and structures and produce injustice, because in many cases avoiding such participation is difficult or impossible. Having understood that structural processes cause some injustices, those participating in the production and reproduction of the structures should recognize that their actions contribute along with those of others to this injustice, and take responsibility for altering the processes to avoid or reduce injustice. Such a project cannot be undertaken, of course, without reflection on the past in a different way. In order to take forward-looking action aimed at changing the way that people’s actions in the context of accepted institutional practices contribute to harmful outcomes, we must understand more about how the structural processes work. This usually requires understanding the history of social processes and practices as they have emerged, changed, influenced one another, and often produced unintended outcomes. The primary purpose of such backward-looking analysis in the context of political responsibility, however, is not to debate fault, which can divert those who share political responsibility from the forward-looking tasks of trying to alter the processes. (4) Political responsibility is relatively open with regard to the actions that count as taking up the responsibility. In this respect, as Joel Feinberg discusses, responsibility is distinct from duty. Like duties, responsibilities carry a burden and an obligation; carrying out responsibilities is not a matter of mere beneficence. Unlike duties, however, responsibilities carry considerable discretion; one must carry out one’s responsibilities, but how one does so is a matter for judgment according to what the responsibilities are for, the capabilities of agents, and the content of action.17 Similarly, Robert Goodin argues that responsibility differs from duty in being more outcome oriented. A duty specifies a rule that an agent should follow. One has fulfilled the duty if one has performed the required actions. Carrying out a responsibility, on the other hand, consists in seeking to bring about a specified outcome. It is very possible to act in accord RESPONSIBILITY & GLOBAL LABOR JUSTICE 379 16See Hans Jonas, The Imperative of Responsibility (Chicago: University of Chicago Press, 1984), pp. 90–120. 17Joel Feinberg, “Duties, rights and claims,” Rights, Justice and the Bounds of Liberty (Princeton, N.J.: Princeton University Press, 1980), p. 137; cited in Larry May, The Socially Responsible Self: Social Theory and Professional Ethics (Chicago: University of Chicago Press, 1996), p. 90. with rules of morality and yet not have discharged one’s responsibilities, because one has not achieved the required outcomes even though it is feasible to do so.18 (5) Political responsibility, then, is a shared responsibility in specific ways. As Larry May theorizes, the concept of shared responsibility is distinct from the concept of collective responsibility in that the former is a distributed responsibility whereas the latter is not. A collective of persons, such as a corporation, might be said to be responsible for a state of affairs without any of its constituent individuals being responsible as such. Shared responsibility, on the other hand, is a personal responsibility for outcomes or the risks of harmful outcomes, produced by a group of persons. Each is personally responsible for the outcome in a partial way, since he or she alone does not produce the outcomes; the specific part that each plays in producing the outcome cannot be isolated and identified, however, and thus the responsibility is essentially shared.19 May’s treatment of shared responsibility is largely backward-looking. He reflects on how persons who have not themselves been directly guilty of a harm such as a hate crime may nevertheless contribute by their attitudes and actions to fostering a social environment in which such harms appear more acceptable than they might otherwise. If we follow my claim that political responsibility is more forward-looking than backward-looking, then the shared nature of political responsibility refers primarily to the relationships with others that the responsibility involves. Taking political responsibility means acknowledging that one participates in social processes that have some unjust outcomes, and one participates with many others. Discharging the responsibility entails enjoining collective action with at least some of these others. My responsibility becomes to enjoin others to reflect on and acknowledge their participation in the structural processes, and to listen to their account of how they work and our role in them. We share responsibility to fashion organized means of changing how the processes work so they will issue in less injustice. Our working through state institutions is often an effective means of such collective action to change structural processes, but states are not the only tools of effective collective action.20 The form of responsibility, then, is political in these senses that acting on my responsibilities involves joining with others in a public discourse where we try to persuade one another about courses of collective action that will contribute to ameliorating the problem. 380 IRIS MARION YOUNG 18Robert Goodin, “Responsibilities,” Utilitarianism as a Public Philosophy (Cambridge: Cambridge University Press, 1995), pp. 81–7. 19May, Sharing Responsibility (Chicago: University of Chicago Press, 1993), ch. 2. 20Melanie Beth Oliviero and Adele Simmons recommend uses of civil society organizations for addressing issues of labor standards; see “Who’s minding the store? Global civil society and corporate responsibility,” Global Civil Society 2002, ed. Marlies Glasius, Mary Kaldo and Helmut Anheier (Oxford: Oxford University Press, 2002), pp. 77–107. Archon Fung develops a model for a process of improving labor conditions that combines state institutions and decentralized deliberative civic organizations, including those involving affected workers; Fung, “Deliberative democracy and international labor standards,” Governance, 16 (2003), 51–71. An important corollary of this feature of political responsibility is that many of those properly thought to be victims of harm or injustice may nevertheless have political responsibility in relation to it. In a fault model of responsibility, blaming those who claim to be victims of injustice functions to absolve others of responsibility for their plight. In a conception of political responsibility, however, those who can properly be argued as victims of structural injustice can be called to a responsibility they share with others in the structures to engage in actions directed at transforming the structures. In the case of labor exploitation, the workers themselves ought to resist if they can by means of their own collective organization. Without the support of others taking responsibility for working conditions in ways that support them, however, they are less likely to succeed. Conceptualizing political responsibility as distinct from blame is important not only philosophically, but also for the sake of motivating political action. Frequently the reaction of people being blamed for a wrong is defensive—to look for other agents who should be blamed instead of them, or to find excuses that mitigate their liability in those cases where they must agree that their actions do causally contribute to the harm. Such practices of accusation and defense have an important place in morality and law. In many contexts where the issue is how to mobilize collective action for the sake of social change and greater justice, however, such rhetorics of blame and finger-pointing displacement lead more to resentment and refusal to take responsibility than to useful basis of action. If corporate executives or shoe buyers hear the claims of anti-sweatshop activists as laying blame on them personally for the conditions under which the shoes are produced, they rightly become indignant, or scoff at the absurd extremism of the movement. A concept of political responsibility separate from and additional to responsibility as liability allows us to call on one another to take responsibility together for the fact that our actions collectively assume and contribute to the complex structural processes that enable the working conditions we deplore and make them difficult for any single agent to change.21 As I discuss in the next section, this does not necessarily imply that all who share responsibility have an equal responsibility. The power to influence the processes that produce unjust outcomes is an important factor distinguishing degrees of responsibility. Earlier I suggested that some of Thomas Pogge’s formulation of the responsibilities of global justice wrongly slip into a blame-oriented language. RESPONSIBILITY & GLOBAL LABOR JUSTICE 381 21William Connolly makes a distinction similar to Arendt’s between responsibility as blame and political responsibility. For him the resentment and count-accusation dialectic that accompanies blame in a discourse of public affairs makes political identity overly rigid and paralyzes action. Thus he recommends a notion of political responsibility without blame and with a more fluid and ambiguous understanding of the sources of wrong than the implicitly Christian identification of the sinner. See Connolly, Identity/Difference (Ithaca, N.Y.: Cornell University Press, 1993), esp. ch. 4. Melissa Orlie also distinguishes between a sentiment of resentment exhibited in blaming and holding oneself and others politically responsible. See Orlie, Living Ethically, Acting Politically (Ithaca, N.Y.: Cornell University Press, 1997), pp. 169–73. Briefly examining how can help clarify why the distinction is important. In some of his discussions Pogge conceives the institutions and social processes in which most of the world’s people are embedded as a system that is imposed by some on others. He finds a small global elite—affluent citizens and holders of political and economic power in resource-rich developed countries—who “enforce a global poverty regime under which we may claim the world’s natural resources for ourselves and can distribute these among ourselves on mutually agreeable terms.”22 He refers to “the design of a global economic order” which is determined by a tiny minority of participants, and finds that a global economic order is being imposed on people in developing countries by Western governments acting in the name of their citizens, which presses many people into grinding poverty and exposes them to domination.23 The language of design, enforcement and imposition in these formulations encourages a reversion to a liability model of responsibility for global economic relations. If “we” impose an unjust order on “them,” then we should be blamed for this wrong. Certainly some particular agents can and should be blamed for specific decisions they make and actions they take whose consequences in worsening the lives of poor people can be traced. Perhaps we should blame decision-makers at the International Monetary Fund, for example, for the consequences on poor people of the harsh conditions they impose on states in the service of structural adjustment. It is not helpful, however, to construct the entire network of economic interdependence that links North American consumers to East Asian workers as a design wrongly imposed on others for which some people can be blamed. Implicitly such a formulation absolves too many ordinary people, in the South as well as the North, of responsibilities they should take up, if only responsibilities to organize pressure on powerful global actors. So how does the model of political responsibility apply to the claims of the anti-sweatshop movement? I said earlier that local owners and managers, and to some extent the local state, should be held responsible in the sense of liable for the miserable pay and working conditions of factories where many consumer goods exported to the United States and Europe are produced. Political responsibility adds to rather than replaces this first layer of responsibility. Because corporate executives, university administrations, retailers, and consumers act within a set of structures that materially connect them to one another and to factory workers, they have responsibilities to concern themselves with the wellbeing of those workers. Acknowledging such political responsibility does not imply accepting blame for being a direct cause of the poor conditions. It does mean acknowledging that they contribute by their actions to perpetuating the structural conditions, incentives and constraints that condition the actions 382 IRIS MARION YOUNG 22Thomas Pagge, World Poverty and Human Rights (Cambridge Polity Press, 2002), p. 142. 23“Priorities of Global Justice,” p. 43. of the owners and managers whose actions are the most immediate cause. None of these more distant agents can act alone to improve working conditions, however. Instead they must act collectively. Thus taking responsibility for distant sweatshop conditions involves recognizing a shared responsibility, persuading others that they share it as well, and organizing forms of collective action designed to change the incentive structures, alter the constraints, or shift the distribution of benefits in continuing to buy and sell goods manufactured by superexploited workers. IV. REASONING ABOUT POLITICAL RESPONSIBILITY Some people might object to the conception of political responsibility I have outlined on the grounds that it seems to make nearly everyone responsible for nearly everything. Most of us participate in a number of structural processes that arguably have disadvantaging, harmful or unjust consequences for some people in virtue of our jobs, the market choices we make, or other activities. Surely it is asking too much, the objection runs, for each of us to worry about all these modes of participating in structures and how we might adjust our lives and relation to others so as to reduce their unjust effects. Our relation to many of these structural processes is so diffuse, and the possibility that our own action can effect a change in outcomes is often so remote, that it is more reasonable to limit our moral concern to matters where we stand in direct relation to others and can see clearly the effect of our action on them. Before attempting to quell this fear that accepting a concept of political responsibility makes everyone equally responsible for all injustices, let me dwell for a moment on this anxiety. Part of the purpose for noticing structural injustice and theorizing responsibility in relation to it is precisely to question the common intuition that the moral claims of justice ought not to be too demanding on individuals. Many philosophers and citizens reject as unreasonable moral arguments whose conclusions would require decent law-abiding persons to give up very much time, energy, or resources in the effort to right wrongs. Within a different paradigm of moral responsibility, however, which I will call existentialist, the claims of justice unavoidably create anxiety. Yes, there are more and greater needs, harms, and social problems than we feel our puny efforts can respond to. Just because we might find overwhelming the objective problems that call for responsibility and may feel ourselves inadequate to this call is not a reason to trim down moral claims to a more emotionally manageable size. I argued above that the structural injustices for which we share responsibility occur through ongoing and normally accepted institutional relations and actions. Taking political responsibility thus often entails bringing what is normal and acceptable into question, to the extent that it produces or reproduces injustice. As Liam Murphy argues, so long as the society in which we live is far from the ideal of justice, moral demands on individuals will be rather stringent and RESPONSIBILITY & GLOBAL LABOR JUSTICE 383 perhaps difficult to meet. They do not amount to every individual taking on the personal burden of righting all wrongs, however, which is unreasonable, but persons jointly working to make better institutions.24 If the motive for the objection is not to reduce the idea of political responsibility to absurdity, but rather to ask how a person should reason about his or her own action in the face of structural injustice, then the question is reasonable. While I cannot answer the question adequately in the space remaining in this essay, I will indicate some parameters for reasoning about a particular agent’s responsibility in relation to structural injustice. Robert Goodin theorizes a conception of social responsibility which attends more to outcomes than to the causal production of harms. In answer to the question, how then do agents know what are their responsibilities, he proposes a notion of task responsibility. A person’s position in an institution or the relationship in which he or she stands with others implies certain duties to see to it that specific ends come about; the performer of a task has some discretion about how these responsibilities will be discharged, as long as these ends are achieved. If other people do not discharge their responsibilities, moreover, he or she may have responsibilities to try to make up for their laxity from their own position, even though there may be no extra reward for doing so.25 This idea of task responsibility may be a good starting point for responding to the above stated fear that political responsibility makes everyone responsible for everything. A concept of task responsibility highlights the fact that many people share responsibility for producing acceptable outcomes. There is thus a division of labor in political responsibility; each of us must look to our own institutional positions, skills and capacities, and the other responsibilities that come to us, to assess our tasks that will most effectively coordinate with others to help bring about more just outcomes. If task responsibility refers to the way existing institutions assign responsibilities to persons, however, this concept will often fall short as a guide to reasoning about action in relation to structural injustice. For one of the causes of structural injustices is the way at least some institutions assign tasks. A spokeswoman for a major retailer’s job is to issue statements of concern about sweatshop working conditions which deflect responsibility onto faraway subcontractors. A lawyer’s job in the same company is to prepare and review documents that ensure that the multiple contractual relationships the retailer has conform to law in every jurisdiction under which they fall. The sales clerk’s job in an outlet store that sells the company’s clothes is to flatter me when I try on the clothes. By hypothesis here, the problem is not that people are failing in the performance of their tasks; on the contrary, they are doing their jobs very well. The problem is the way that the institutions are defined, their power, purposes 384 IRIS MARION YOUNG 24Liam B. Murphy, Moral Demands in Nonideal Theory (Oxford: Oxford University Press, 2000). 25Robert Goodin, “Apportioning responsibilities,” Utilitarianism as a Public Philosophy, pp. 100–18. and interactions with one another, as well as how they define tasks to fulfill those purposes. While the performance of certain institutionally defined tasks contributes to the perpetuation of injustice, at the same time there may be tasks that could be performed for which there is no place in existing institutions. It is no one’s job to protect workers who try to organize a union in their hidden production facility, no official well-resourced government or international agency has assigned members of its staff the task of reducing the perceived need for export processing zones or changing incentives for small factory owners in the developing world. Political responsibility in respect to structural injustice, in other words, often requires transforming institutions and the tasks they assign. This is everyone’s task and no one’s in particular. Thus we may have arrived again at the question, given that there are many institutional situations that should be transformed in order to further social justice, how should individuals think about their own responsibilities? One parameter of thinking here refers to the degree of injustice. Where basic rights are violated in a widespread fashion over a long term, world citizens have greater responsibility to take action directed at redress than for lesser injustices. The anti-sweatshop movement has succeeded in promoting widespread public discussion of labor conditions precisely because the working conditions it exposes are both egregious, widespread, and predictable. Approaching such structural injustice, we can appeal not to pre-assigned tasks that people have, but rather to their institutional or social position. What might be required from one’s position is doing something different from or additional to the tasks normally assigned to that position, but different persons nevertheless stand in differing positions in structures that produce unjust outcomes, which afford them different opportunities and capacities for influencing those outcomes. I suggest that persons can reason about their action in relation to structural injustice along parameters of connection, power, and privilege. Connection – Earlier I argued that moral agents have responsibilities in relation to any and all of those whose participation in institutions one assumes by one’s own actions. This conclusion generates the problem now under discussion, because most of us are connected to too many people mediated by too many institutions to be able to take active responsibility in respect to all of them. One way to prioritize among these is to give specificity to some connections that are easier to discern as implicating institutions in which one is directly involved. Tracing particular connection between my own action locales – my workplace, my city, my church – and distant strangers potentially affected by or related to the activities of these institutions helps to de-reify the anonymous structural processes that mediate between us. The anti-sweatshop movement has had some success in reducing the anonymity of market processes by demanding that universities and other bulk consumers, as well as large retailers, identify the RESPONSIBILITY & GLOBAL LABOR JUSTICE 385 sites where particular items sold in particular places to which they are connected are manufactured. Giving such pragmatic priority to connections that I can discern between my institutional participation and faraway others carries the danger, however, that severe injustice will be ignored because people have not seen, or have chosen not to see, this sort of connection between themselves and this injustice. Recognizing the importance of connection in locating responsibility, some people decide that the way to exercise this responsibility is by trying to disconnect. They choose not to buy certain products or brands, for example, because they have reason to think that they are manufactured under unjust conditions. Where such boycott is individual it has no effect on those conditions, however. It is nearly impossible in the contemporary world for a person to remove herself from implication through her actions in structures that produce injustice. To the extent that this implication is a ground of political responsibility, then, the responsibility cannot be removed by attempts at withdrawal; it can only be taken up. Organized boycotts involving masses of people can be one effective means of exercising political responsibility. Power – A person’s position in structural processes usually carries different degrees of potential or actual power or influence over the processes that produce the outcomes. Organizations and institutions, moreover, vary in their power and ability to influence structural processes. Some of the large major clothing retailers, for example, such as Benetton, Gap, or Guess?, have built transnational systems not only of retail outlets, but directly contract with small manufacturers. Because of the size, reach and relative influence of such organizations, it makes sense to expect major decision-makers in them to take responsibility for working conditions.26 The anti-sweatshop movement recognizes this criterion of power or influence often by targeting its actions on corporate or regulatory bodies arguably with power to change structural processes. The power and influence parameter for reasoning suggests that where individuals and organizations do not have sufficient energy and resources to respond to all structural injustices to which they are connected, they should focus on those where they have more capacity to influence structural processes. More powerful individuals and institutions, of course, often have more interest in perpetuation of the status quo than change in the processes and their outcomes. For this reason individuals and organizations with relatively less power but some ability to influence the powerful individuals and institutions can take responsibility actively to pressure the more powerful to take responsibility for change. 386 IRIS MARION YOUNG 26Major retail firms have increasingly gained control over a vertically integrated global apparel industry. See Bonacich and Appelbaum, Behind the Label, ch. 3; Rosen, Making Sweatshops, chs 10 and 11. Some lawyers argue for a legal strategy that would extend liability for violations of labor standards to the manufacturer who contracts out work, and not only to the contractor. See Leo L. Lam, “Designer duty: extending liability to manufacturers for violations of labor standards in garment industry sweatshops,” University of Pennsylvania Law Review, 141 (1992), 623–67. Such a strategy must be pursued within a single legal system, of course, and cannot cross jurisdictions between, say, Thailand and the United States. Privilege – Where there are structural injustices, these usually produce not only victims of injustice, but persons who acquire relative privileges by virtue of the structures. Most who occupy positions of power within mediated institutions or processes that harm some people or make them vulnerable to harm also derive privileges from this power. In most situations of structural injustice, there are relatively privileged persons who have relatively little power as individuals in their institutional positions. North American college students or European office workers who buy shirts or shoes made under sweatshop conditions have little power by virtue of their position. They are privileged, however, both in relation to sweatshop workers and to many other people in the world. Persons who benefit relatively from structural inequalities have special moral responsibilities to contribute to organized efforts to correct them, not because they are to blame for them, but because they have more resources and are able to adapt to changed circumstances without suffering serious deprivation. From this point that privilege generates special responsibilities, however, it does not follow that victims of injustice do not share responsibility for contributing to the alteration of the circumstances that constrain their options. On the contrary. I pointed out earlier that one difference between a liability model of responsibility and the concept of political responsibility consists precisely in that those who suffer injustice share responsibility for helping to bring about change. Thus in the example of sweatshops, the specific position of the workers carries unique responsibilities. Their conditions are likely to improve only if they organize to demand and monitor such improvement. Victims of injustice, however, usually can only succeed in their own efforts to change the structural conditions of injustice if others in a position to support them take responsibility to do so. Political responsibility, I have argued above, is necessarily a shared responsibility both because the injustices that call for redress are the product of the mediated actions of many, and thus because they can only be rectified through collective action. For most such injustices, the goal is to change structural processes by reforming institutions or creating new ones that will better regulate the process to prevent harmful outcomes. Thus a final consideration in reasoning about where a person might put her practical energies in taking political responsibility involves coordination with others to achieve such change. Just as a person can make almost no difference by trying to disconnect from the processes, so an individual can rarely decide to act alone or with just a few other people to change it. Thus sometimes the fact that there is a promising movement to join can be a reason to give priority to some issues over others. Movements always need beginnings, of course; so in the absence of coordinated action involving significant numbers of people, but where other considerations ought to make a particular issue of high priority, a few individuals can try to persuade others of its importance and enjoin them to become organized. Like some other forms of responsibility, political responsibility is open about what actions count as discharging it. While in this paper I have endorsed the RESPONSIBILITY & GLOBAL LABOR JUSTICE 387 claims of the anti-sweatshop movement that apparel manufacturers, institutional purchasers of apparel, and individual consumers have responsibilities toward faraway workers who produce these goods, I have said nothing about what ought to be done to improve those conditions structurally. The anti- sweatshop movement has had some significant successes in its short life, not only in raising consciousness and motivating some people and institutions to assume responsibility, but also in increasing transparency of the connections among factories and firms in the industry and in supporting unions of affected workers. Nevertheless, there are significant disagreements both within and outside the movement about whether some tactics do more harm than good and thus about what are the best ways in the long run to encourage and enforce decent working conditions.27 V. CONCLUSION The main purpose of this essay has been to begin an answer to the question: how should agents think about responsibility in relation to structural social injustice? I have proposed a concept of political responsibility which is distinct from a liability model of responsibility in five respects. (1) Unlike responsibility as liability, political responsibility does not isolate some responsibility parties in order to absolve others. (2) Whereas blame or liability seeks remedy for a deviation from an acceptable norm, usually by an event that has reached a terminus, with political responsibility we are concerned with structural causes of injustice that are normal and ongoing. (3) Political responsibility is more forward-looking than backward-looking. (4) What it means to take up or assign political responsibility is more open and discretionary than what it means to hold an agent blameworthy or liable. (5) An agent shares political responsibility with others whose actions contribute to the structural processes that produce injustice. I have elaborated this concept of political responsibility through the example of the apparel industry and the social movement seeking changes in working conditions in it for at least two reasons. This example exhibits structural injustice where some of the social positions in the structure are fairly easy to identify. Because in this case the structures cross nations and boundaries, moreover, it well illustrates that the scope of issues of justice corresponding to political responsibility derives not from the boundaries of a state or political jurisdiction, but from the connections generated by the structural processes. Where this scope is beyond existing regulatory and political institutions, there may be need to construct some to correspond to that scope. While in this essay I have focused on political responsibility for labor conditions in a global industry, my claim is that the concept is generalizable and applies to any structural social injustice. 388 IRIS MARION YOUNG 27For one set of debates, see Archon Fung, Dara O’Rourke, and Charles Sabel, eds, Can We Put an End to Sweatshops? (Boston: Beacon Press, 2001). 
work_hlqndjyq65d2dh2kwnyyl2khoe	----	Ethics & Global Politics: Vol 14, No 1 Log in  |  Register Cart Home All Journals Ethics & Global Politics List of Issues Volume 14, Issue 1 Ethics & Global Politics An open access journal Publishes research on ethics and global politics, exploring environmental protection, policy development, poverty, technology and knowledge, migration and more. Search in: This Journal Anywhere Advanced search Submit an article New content alerts RSS Citation search Citation search Current issue Browse list of issues Explore Top About this journal Journal metrics Aims and scope Instructions for authors Journal information Editorial board News & offers Editorial policies Latest articles See all volumes and issues Volume 14, 2021 Vol 13, 2020 Vol 12, 2019 Vol 11, 2018 Vol 10, 2017 Vol 9, 2016 Vol 8, 2015 Vol 7, 2014 Vol 6, 2013 Vol 5, 2012-2013 Vol 4, 2011 Vol 3, 2010 Vol 2, 2009 Vol 1, 2008 Login or register to access this feature Have an account? Login nowDon't have an account? Register for free Register a free Taylor & Francis Online account today to boost your research and gain these benefits: Download multiple PDFs directly from your searches and from tables of contents Easy remote access to your institution's subscriptions on any device, from any location Save your searches and schedule alerts to send you new results Choose new content alerts to be informed about new research of interest to you Export your search results into a .csv file to support your research Register now or learn more Download citations Choose format RIS (ProCit, Reference Manager) BibTeX RefWorks Direct Export Download citations Download citations Download PDFs Browse by section (All) Display order (Default) Published online date Page number Section A-Z Most read Most cited Ethics & Global Politics, Volume 14, Issue 1 (2021) Issue In Progress Original Article Article What Kind of Functionings Matter for Global Justice for Children? Gottfried Schweiger Article: 1873576 Published online: 19 Jan 2021 Abstract | Full Text | References | PDF (318 KB) | Permissions  610Views 0CrossRef citations Altmetric Review Article review article Beyond lockdown? The ethics of global movement in a new era Guy Aitchison Published online: 04 Mar 2021 Abstract | Full Text | References | PDF (300 KB) | Permissions  563Views 0CrossRef citations Altmetric Explore Most read articles Most cited articles Multimedia Information for Authors Editors Librarians Societies Open access Overview Open journals Open Select Cogent OA Dove Medical Press F1000Research Help and info Help & contact Newsroom Commercial services Advertising information All journals Books Keep up to date Register to receive personalised research and resources by email Sign me up Taylor and Francis Group Facebook page Taylor and Francis Group Twitter page Taylor and Francis Group Linkedin page Taylor and Francis Group Youtube page Taylor and Francis Group Weibo page Copyright © 2021 Informa UK Limited Privacy policy Cookies Terms & conditions Accessibility Registered in England & Wales No. 3099067 5 Howick Place | London | SW1P 1WG Accept We use cookies to improve your website experience. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. By closing this message, you are consenting to our use of cookies. 
work_hlrxo2wnxzamxmemlxjbnsvt2a	----	S1742058X1600014X.indd 221 Du Bois Review, 13:2 (2016) 221– 236 . © 2016 Hutchins Center for African and African American Research 1742-058X/16 $15.00 doi:10.1017/S1742058X1600014X TOWARD A CRITICAL ENVIRONMENTAL JUSTICE STUDIES Black Lives Matter as an Environmental Justice Challenge David N. Pellow Department of Environmental Studies , University of California , Santa Barbara Abstract In this paper I expand upon the recent use of the term “Critical Environmental Justice Studies.” This concept is meant to capture new developments in Environmental Justice (EJ) Studies that question assumptions and gaps in earlier work in the field. Because this direction in scholarship is still in its formative stages, I take this opportunity to offer some guidance on what Critical Environmental Justice (CEJ) Studies might look like and what it could mean for theorizing the relationship between race (along with multiple additional social categories) and the environment. I do so by (1) adopting a multi-disciplinary approach that draws on several bodies of literature, including critical race theory, political ecology, ecofeminist theory, and anarchist theory, and (2) focusing on the case of Black Lives Matter and the problem of state violence. Keywords: Environmental Justice , Black Lives Matter , State Violence , Racism , Speciesism , Scale , Expendability , Indispensability INTRODUCTION Black Lives Matter (BLM) is a social movement centered on the problem of state- sanctioned racist violence. The movement began as a response to the acquittal of George Zimmerman, a man who killed Trayvon Martin, a seventeen-year old African American boy in Sanford, Florida, in 2012. From that moment on, social media, mainstream media, and the Black Lives Matter movement would routinely inten- sify the national focus on racialized state-sanctioned violence when yet another video or testimony surfaced featuring an African American being shot, beaten, choked, and/or killed by police or White vigilantes. The role of social media tech- nology was pivotal. As one writer put it, “Social media could serve as a source of live, raw information. It could summon people to the streets and coordinate their movements in real time. And it could swiftly push back against spurious media narratives . . .” (Bijan 2015 ). BLM co-founder Alicia Garza explained what the movement stands for: “Black Lives Matter is an ideological and political intervention in a world where Black lives are systematically and intentionally targeted for demise. It is an affirmation of Black at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 222 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 folks’ contributions to this society, our humanity, and our resilience in the face of deadly oppression” (Garza 2014 ). In this paper, I draw links between what I view as the most important insights and questions that emerge from the Black Lives Matter movement and the strug- gle against environmental racism. This is a connection that many scholars might not make at first glance because police brutality and environmental politics would appear to be only tangentially related, but I argue they are in fact closely intertwined and that we must explore their myriad connections in order to excavate the roots of racist violence no matter the form it takes. The questions I explore here include: How can Black Lives Matter’s emphasis on police violence against African American communities inform our understanding of the scourge of ecological burdens facing those same communities? Conversely, what can the violation of Black bodies and spaces by ecologically destructive agents produced by states and corporations tell us about the violation of those same bodies by police and law enforcement agents? I find that a “first-” and “second-generation” Environmental Justice Studies frame- work can assist in this effort, but can only take us so far. Therefore, I propose that a Critical Environmental Justice Studies framework can more fully address these pressing concerns. ENVIRONMENTAL JUSTICE STUDIES The Environmental Justice (EJ) movement is composed of people from communities of color, indigenous communities, and working-class communities who are focused on combating environmental injustice—the disproportionate burden of environmental harm facing these populations. For the EJ movement, social justice is inseparable from environmental protection. In the early 1970s, researchers in the United States found strong correlations between social class status and air quality in the United States. As a result of social movement activism, however, the focus began to broaden from social class to race and from air pollution to a range of environmental hazards (Pulido 1996 ; Walker 2010 ). For example, in 1982, hundreds of civil rights leaders and community activists protested a toxic waste dump in the majority African American community of Warren County, North Carolina. That action sparked the discourse of environmental rac- ism and the growth of Environmental Justice Studies, and since that time, scholars and other researchers have documented the reach of environmental racism/inequality in the United States and around the globe, as well as the social movement that has emerged to highlight and challenge this phenomenon (Bullard 2000 ; Cole and Foster, 2000 ; Pellow and Brulle, 2005 ). Thus, hundreds of studies have documented that people of color, people of lower socioeconomic status, indigenous and immigrant populations, and other marginalized communities are disproportionately affected by ecologically harmful infrastructures, such as landfills, mines, incinerators, polluting factories, and destructive transportation systems, as well as by the negative consequences of ecologically harmful practices, such as climate change/disruption and pesticide exposure (Ringquist 2005 ). Much of this work has documented the troubling depths and breadth of environmental injustice’s impact on the lives of people—including public health and mental health effects—and on how these communities make meaning out of these assaults while organizing for environmental justice. And while EJ Studies may have earlier focused on the United States, scholars are also documenting environmental inequalities and EJ move- ments’ responses to them around the globe (Agyeman et al., 2010 ; Pellow 2007 ; at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 223 Roberts and Parks, 2006 ). A small but growing group of researchers—including and especially environmental humanities scholars—have focused on the ways that gender, sexuality, citizenship, indigeneity, and nation shape the terrain of eco- logical inequalities, but those areas of scholarship remain in need of further devel- opment (Adamson 2011 ; Bell 2013 ; Buckingham and Kulcur, 2010 ; Gaard 2004 ; Smith 2005 ). TOWARD A CRITICAL ENVIRONMENTAL JUSTICE STUDIES Recent scholarship divides EJ Studies into two phases: (1) the “first-generation,” which was focused primarily on documenting environmental inequality through the lens of race and class; and (2) “second-generation” studies that extend beyond questions of distribution to incorporate a deeper consideration of theory and the ways that gender, sexuality, and other categories of difference shape EJ struggles (Buckingham and Kulcur, 2010 ; Walker 2010 ). In our book Power, Justice, and the Environment , Robert Brulle and I used the term “Critical Environmental Justice Studies” (Pellow and Brulle, 2005 ), which has since been adopted by other scholars working to expand the academic field and politics of environmental justice (Adamson 2011 ; Holifield et al., 2010 ). This concept is meant to build on recent scholarship in EJ Studies— “second-generation” writings—that questions assumptions and gaps in earlier work in the field by embracing interdisciplinarity and methodologies and epistemologies including and beyond the social sciences. As this direction in scholarship is still in its formative stages, I take this opportunity to offer some guidance for what a Critical EJ Studies might look like. Critical EJ (CEJ) Studies is a perspective intended to address a number of limita- tions and tensions within EJ Studies. These include, for example: (1) questions con- cerning the degree to which scholars should place emphasis on one or more social categories of difference (e.g., race, class, gender, sexuality, species, etc.) versus a focus on multiple forms of inequality; (2) the extent to which scholars studying EJ issues should focus on single-scale versus multi-scalar analyses of the causes, consequences, and possible resolutions of EJ struggles; (3) the degree to which various forms of social inequality and power—including state power—are viewed as entrenched and embed- ded in society; and (4) the largely unexamined question of the expendability of human and non-human populations facing socioecological threats from states, industries, and other political economic forces. On the first point above, EJ scholars have a tendency to focus on only one or two forms of social inequality in studies of environmental injustice. For example, some scholars continue to debate the relative importance of race versus class in terms of which category is most important with respect to the distribution of environmental hazards, while only a small group of scholars have explored the role of gender and sexuality in EJ Studies (Buckingham and Kulcur, 2010 ; Smith 2005 ). Moreover, the key social category species remains, at best, at the margins of the field of EJ Studies, despite the fact that, generally, when and where humans suffer from environmental inequalities, so does the more-than-human world (and vice versa) and often as a result of ideological frameworks that link marginalized humans to “nature.” My point here is that since multiple forms of inequality drive and characterize the experi- ence of environmental injustice, the field would do well to expand in that direc- tion. Thus CEJ Studies brings greater attention to how multiple social categories of difference are entangled in the production of environmental injustice, from race, gender, sexuality, ability, and class to species, which would attend to the at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 224 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 ways that both the human and the more-than-human world are impacted by and respond to environmental injustice. With respect to the second point above concerning scale , the EJ Studies literature tends to be characterized by research at one scale or another, rather than a multi-scalar approach. In other words, most researchers focus on the local, regional, national, or sometimes transnational or global scale, but few studies attempt to grasp how EJ struggles function at multiple scales, from the cellular and bodily level to the global level and back (Herod 2011 ; Sze 2016 ). Some scholars have addressed this important question by exploring cases in which pollutants produced in one part of the world travel across national borders and impact human and ecological health in another hemisphere (Sze 2006 ). Scale is of critical importance because it allows us to under- stand how environmental injustices are facilitated by decision-makers who behave as if sites where hazards are produced “out of sight and out of mind” are somehow irrel- evant to the health of people and ecosystems at the original sites of decision-making power and consumption. Attention to scale also assists us in observing how social movement responses to environmental injustices draw on spatial frameworks, networks, and knowledge to make the connections between hazards in one place and harm in another. CEJ Studies thus advocates multi-scalar methodological and theoretical approaches to studying EJ issues in order to better comprehend the complex spatial and temporal causes, consequences, and possible resolutions of EJ struggles. Regarding the third point above—the degree to which various forms of inequality and power are viewed as entrenched in society—this concern stems from my conclu- sion that the vision of change articulated by EJ Studies scholars and most EJ activ- ists generally looks to the state and capital to accommodate demands via legislation, institutional reforms, and other policy concessions. The concern here is that such an approach leaves intact the very power structures that produced environmental injus- tice in the first place. Yes, it names those institutions and structures as sources of the problems and seeks to reform them, but by working in collaboration with those entities, such efforts ultimately risk reinforcing their legitimacy. CEJ Studies urges a deeper grasp of the entrenched and embedded character of social inequality—including speciesism and state power—in society and therefore a reckoning with the need for transforma- tive (rather than primarily reformist) approaches to realize environmental justice. In other words, Critical EJ Studies seeks to push our analyses and actions beyond the human, the state, and capital via a broad anti-authoritarian perspective. Regarding the fourth point above, EJ Studies suggests that various marginalized human populations are treated—if not viewed—as inferior, and less valuable, to society than others. This point is largely undertheorized in the literature (Mills 2001 ; Pulido 1996 ). Critical EJ Studies makes this theme explicit by arguing that these populations are marked for erasure and early death, and that ideological and institutional other- ing is linked to the more-than-human world as well. Moreover, CEJ counters that dominant perspective with a framework that contends that these threatened bodies, populations, and spaces are indispensable to building socially and environmentally just and resilient futures for us all. The above constitute what I call the four pillars of CEJ Studies. CEJ Studies draws from the work of scholars across numerous fields that only periodically inter- sect, such as Environmental Justice Studies (Adamson 2011 ; Bell 2013 ; Bullard 2000 ; Cole and Foster, 2000 ), Critical Race Theory (Goldberg 2002 ), Critical Race Feminism (Hong 2006 ; Smith 2005 ), Ethnic Studies (Márquez 2014 ), Gender and Sexuality Studies and Ecofeminism (Buckingham and Kulcur, 2010 ; Gaard 2004 ), Political Ecology (Bennett 2009 ), and Anti-Authoritarian/Anarchist Theory (Scott 2010 ; Smith 2011 ). Furthermore, CEJ Studies is interdisciplinary, multi-methodological, and at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 225 is activist-scholar inspired in that it seeks to bridge and blur the boundaries and borders between the academy and community, theory and practice, analysis and action. Critical EJ Studies is only intended to be one of many possible approaches to environmental justice scholarship and action. It is neither prescriptive, nor is it a declaration of where the field should be headed. In the following sections, I apply a CEJ Studies framework to the Black Lives Matter movement to demonstrate the importance of encouraging scholars and activists to think through linkages across theory and social change politics that might not usually emerge from “traditional” EJ Studies or from within many social change movements. CRITICAL EJ STUDIES AND BLACK LIVES MATTER In order to examine Black Lives Matter as a CEJ case study, I gathered data from the BLM website, archives, and social media, as well as major essays published in national and international media outlets by BLM advocates and supporters. This selection of data is not intended to be strictly representative, but rather, as a purposive sample it speaks to the core BLM frames and the four pillars of CEJ Studies. The First Pillar: Intersectionality and the Racial Discourse of Animality CEJ Studies recognizes that social inequality and oppression in all forms intersect and that members of the more-than-human world are subjects of oppression and agents of social change. Black Lives Matter is a social movement organized primarily around the social category of race, but extends the analysis to multiple categories of difference, reflecting an emphasis on intersectionality . Intersectionality is a concept intended to explain the ways that many identities and social categories work together to produce advantages and disadvantages across bodies and space, and that inequalities do not act independently of one another (Collins 2008 ; Hong 2006 ). The founders of BLM present a deeply intersectional approach to the problem of devalued Black life that is inclusive of class, gender, sexuality, immigration status, citizenship, age, ability, and other differences and social categories. All three founders of BLM are women of color. One of them—Alicia Garza—identifies as a queer woman of color, while another—Opal Tometi—is the daughter of Nigerian immigrants and works for an organization focused on the human rights of Black immigrants. The third founder—Patrisse Cullors—who also identifies as queer, organizes support for incar- cerated persons and their families, with a focus on mental health. Thus their political and professional work itself is a study in intersectional theory and practice. As BLM co-founder Alicia Garza writes, “Black Lives Matter affirms the lives of Black queer and trans folks, disabled folks, Black-undocumented folks, folks with records, women, and all Black lives along the gender spectrum” (Garza 2014 ). Critical EJ Studies speaks to the ways in which various social categories of dif- ference work to place particular bodies at risk of exclusion, marginalization, erasure, discrimination, violence, and othering. These insights are important for building an understanding of the ways that intra-human inequality and oppressions function and how they intersect with human-nonhuman oppression. As David Nibert and Michael Fox put it, “[T]he oppression of various devalued groups in human societies is not independent and unrelated; rather, the arrangements that lead to various forms of oppression are integrated in such a way that the exploitation of one group frequently augments and compounds the mistreatment of others” (Nibert and Fox, 2002 , p. 13). “Various devalued groups in human societies” frequently include women, immigrants, at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 226 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 LGBTQ persons, people of color, indigenous peoples, disabled persons, the elderly, low-income people, and nonhuman species. And while the experiences of these groups are qualitatively distinct (i.e., not equivalent), the logic of domination and othering as practiced by more powerful groups, the state, and capital provides the common thread of intersectionality through each of their oppressions. Law enforcement personnel routinely engage in violent acts against humans and nonhumans, even when no threat is evident, thus revealing the ways that state violence produces intersecting oppressions. A 2015 Baltimore Sun investigation of the Baltimore, Maryland Police Department (the same town where Freddie Gray was murdered), detailed numerous incidents in which vulnerable people and nonhumans were the sub- jects of brutal and sometimes lethal force at the hands of police in that city. The report notes that young African American males were the targets of such violence, and so were elderly people, women, children, and nonhuman animals (Friedersdorf 2015 ). The report discusses, for example, the use of a dead rat to intimidate a police officer working on a police brutality case and the murder of a dog by an officer to intimidate his girlfriend. The Baltimore Sun investigation appears to reflect what scholarly studies have long revealed: that there is a well-documented link between the use of violence against nonhuman animals and efforts to exert control over other humans, whether in the destruction of livestock and other food sources during wartime and conquests or through domestic violence directed primarily at women, children, and nonhuman companion animals or pets (Adams 2010 ; Ascione 1997 ; Smits 1994 ). This brings us to what I call the racial discourse of animality , a term meant to capture the language that people use to describe human behavior using nonhuman references and analogies, signaling a set of assumptions surrounding what we view as acceptable “human” versus nonhuman behavior and how different bodies are valued. It reveals the means through which we discuss race, racism, and racial politics in more-than-human terms, as a way of defining the limits and boundaries of the human. This discourse is common in discussions around racial politics and flared up many times around BLM protests against police brutality. What is fascinating is that people on all sides of the issues—activists, lawyers, and agents of the state—use this language. In other words, people deploy the racial discourse of animality in the service of White supremacy and in the service of racial justice. Consider the following examples: Lesley McSpadden, the mother of Michael Brown (an African American teenager killed by a police officer in Ferguson, Missouri) spoke to reporters at a public dem- onstration to call attention to the tragedy of her son’s death. She spoke to the bleak outlook of young African Americans facing police brutality: “You took my son away from me! You know how hard it was for me to get him to stay in school and gradu- ate? You know how many Black men graduate? Not many! Because you bring them down to this type of level where they feel they don’t got nothing to live for anyway!” While other protesters around McSpadden peacefully raised their hands in symbolic surrender, a police officer’s voice was heard and recorded yelling at them, calling them “animals” (Fantz et al., 2014 ). In early 2015, Freddie Gray, a twenty-five year old African American man was taken into police custody in Baltimore, Maryland, and, in the process, incurred severe spinal cord and neck injuries and died shortly afterward, sparking nationwide protests. In Baltimore, the protests, led by African Americans and many supporters of the BLM movement, were mainly peaceful but were marred by property destruction, looting, and a number of police officers being injured. Many Whites took to social media— including Baltimore County police officer Jennifer Lynne Silver—and displayed their views on the matter referring to the people involved as “animals” and, in her words, a “disgrace to the human race” ( Change.org 2015). at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 227 The racial discourse of animality is also used to combat racism. An article in The Guardian responded to Jennifer Silver’s epithets regarding protesters in Baltimore by arguing that police and society often treat nonhuman animals better than African Americans: But ‘animals’ is a misnomer. People—including police officers—are punished for killing or doing harm to domestic animals. Baltimore has busted dog fighting rings and sent offenders to prison for animal cruelty. In 2014, former Baltimore City police officer Alec Taylor was sentenced to a year behind bars for killing a dog. That might not seem like much, but it is longer than the sentences given to the killers of Michael Brown, Eric Garner, Trayvon Martin, Rekia Boyd, or seven-year old Aiyana Stanley-Jones (Nichols 2015 ). In the spring of 2015, a police officer shot Walter Scott, an unarmed African American man in North Charleston, South Carolina, after he fled his car during a traffic stop. Malik Shabazz, president of Black Lawyers for America and former chairman of the New Black Panther Party, appeared on “CNN Newsroom” and stated, “Black men are being killed and hunted down like deer and like dogs” (Griswold 2015 ). That same month, Democratic Congressman Hank Johnson of Georgia took to the floor of the House of Representatives to urge his colleagues to confront police brutality. Drawing on a phrase usually reserved for hunting nonhuman animals, he stated, “It feels like open season on Black men in America” (Griswold 2015 , emphasis added). In these last examples, references to nonhumans are used to communicate the sentiment that African Americans—like all human beings, presumably—should not be treated like nonhuman animals. The assumption here is also problematic because it is speciesist in that it implies that it is acceptable to wantonly hunt and slaughter nonhumans, even if the primary aim is to counter racist violence. My point is that we cannot understand racist violence, and the way we think, talk, and enact it, with- out paying attention to the relationship between humans and nonhumans, as these examples illustrate. Finally, the role of agency is key to the first pillar of CEJ, since African Americans and other marginalized populations are not just the targets of oppression but also regularly resist their subjugation. While traditional elements of what sociologists call “resource mobilization” (Morris 1984 ) are on full display with the Black Lives Matter movement—including the mobilization of human bodies, ideas, words, discourses, tactics, and strategies in protest—it is also the case that the urban built environment, information technology, and other forms of more-than-human objects and natures are also integral to that agency and therefore central to making this vision and practice of social change possible (Bennett 2009 ). The Second Pillar: Scale, Race, and Difference CEJ Studies embraces multi-scalar methodological and theoretical approaches in order to better comprehend the complex spatial and temporal causes, consequences, and possible resolutions of EJ struggles. Scale is deeply racialized, gendered, and classed. The impacts of climate change offer a telling example of how environmental racism reflects this fact. While the conclusions of climate scientists are remarkably clear that anthropogenic climate change is occurring at a dramatic pace and with increasing intensity, this is also happening unevenly, with people of color, the poor, indigenous peoples, peoples of at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 228 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 the global South, and women suffering the most (Harlan et al., 2015 ). Thus, while climate change matters for all of us, it impacts people and nonhumans with dif- ferent levels of intensity. If one only pays attention to the global scale, it appears that the worst effects of climate change are not yet upon us. But if one examines what is occurring in neighborhoods, barrios , indigenous peoples’ lands, and much of the global South, the picture is quite different because the impacts are extensive and ongoing. As Keith Ellison and Van Jones ( 2015 ) put it, “[O]ur kids are being poisoned by the air they breathe. Environmental injustices are taking Black lives— that’s why our fight for equality has to include climate and environmental justice too.” Social cognition studies find that “implicit bias” among White research sub- jects results in perceiving threats to their wellbeing when they see Black and Brown people when no such threat exists (Kang 2005 ). While this research is highly con- sequential for everyday microsociological interactions across the racial spectrum (especially in the case of gun violence in the name of White “self defense”), it has major macrosociological implications as well. Therefore I find that implicit bias is useful for thinking more deeply about the intersection of race and scale. In other words, if these studies find that people of color are implicitly viewed as threaten- ing, then their presence is perceived to be much larger in the social-cognitive terrain of Whites. Thus race and scale intertwine to reveal also that when Black people respond to racism (whether by police or via environmental racism), their actions may be viewed as a threat that is disproportionate and outsized. We can see this, for example, in the militarized response by police departments when interacting with the Black Lives Matter movement. Many supporters of the Black Lives Matter movement, and even military veterans, decried these practices when disturbing images of police and pro- testers clashing in Ferguson, Missouri, in response to the police killing of Michael Brown, seemed to be indistinguishable from media images of civilians being repressed by an occupying military force in some far away land. This fact begs for a scalar analy- sis that links militarized oppression of African Americans to the U.S. military’s treat- ment of people of color elsewhere in the world—in Afghanistan, Iraq, Syria, Pakistan, Yemen, Palestine, and many other nations where the United States uses military force directly or by proxy to protect its interests. This is also an environmental justice issue because the U.S. military is one of the largest sources of pollution on earth (Nazaryan 2014 ) and because militarism and masculinist politics tend to go hand in hand and both tend to result in socially and ecologically harmful practices. Finally, BLM’s work speaks to the myriad ways that scale can be thought of and articulated temporally . In fact, the entire point of the BLM movement is, in some ways, an intervention to remind us that blatant acts of anti-Black violence are not a thing of the past and are still quite rampant in what some observers had hoped would be a “postracial” era. BLM co-founder Alicia Garza uses time as an indicator of the inter- section of race, sexuality, and scale’s intersections, but does so linking history to an imagined future: But what I can say to my child, just like my mom says to me, is that there was a time when it wasn’t OK for people to be out [about their sexuality]. There was a time when black people were being slaughtered. And I hope that the end to that story is, ‘and then we organized, and we built a vibrant international movement, and we really changed conditions for black people in this country, and for every- body.’ And I’m hoping that the story that I’m also able to tell is that our demands went beyond ‘stop killing us,’ to ensure the quality of life for everybody. And that we won that (Brydum 2015 ). at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 229 The Third Pillar: An Anti-Statist/Anarchist Reading of BLM Social inequalities—from racism to speciesism—are not aberrations, but rather are deeply embedded in society and reinforced by state power and market systems. There- fore, the current social order stands as a fundamental obstacle to social and environ- mental justice. A logical conclusion of this observation is that social change movements may be better off thinking and acting beyond the state and capital as targets of reform and/or as reliable partners. Racism, for example, is a foundational component of the political, legal, economic, and cultural systems in the United States. African Americans, for instance, enjoy fewer rights and significantly lower social value than Whites, suffering deep economic, educa- tional, public health, and environmental inequalities; earning far less income and owning far less wealth and property than Whites; and being more likely than Whites to attend low quality, segregated schools and live in residentially segregated communities marked by financial disinvestment, a brutal occupying police force presence, and environmental racism (Bullard 2000 ; Cacho 2012 ; Gilmore 2007 ; Vargas 2010 ). Public health dispari- ties impact African Americans dramatically, as homicides, infant mortality, life expec- tancy, asthma, and a range of other illnesses and life events reveal a much lower statistical value of Black life (Williams and Collins, 1995 ). And millions of African Americans are either confined to prisons via mass incarceration or subjected to routine surveillance and control through the system of mass probation. Thus, racism is, for Black Lives Matter co-founder Alicia Garza, “a disease that this country has in our very DNA” (Garza 2015 ). In a statement posted on the Black Lives Matter website, activists contend that the current state of racist violence against African Americans is a core component of American life, a form of oppression that Blacks have consistently challenged: “Rooted in the experiences of Black people in this country who actively resist our de-humanization, #BlackLivesMatter is a call to action and a response to the virulent anti-Black racism that permeates our society” ( BlackLivesMatter.com 2016). Debates often center on whether social movements should seek to reform or trans- form the legal system. BLM is an important part of that conversation because it is a movement whose participants often embrace the state, but frequently do so in a critical fashion. For example, much of the chanting and protest calls at BLM events include demands to “prosecute the police” and implement stronger laws against hate crimes and police brutality (Furst 2016 ). 1 The BLM’s “National Demands” document reads, in part, “We will help develop a network of organizations and advocates to form a national policy specifically aimed at redressing the systemic pattern of anti-Black law enforcement violence in the U.S.” (Moore and Cullors, 2014 ). In November 2015, after a group of White supremacists shot and wounded several activists who were pro- testing the police killing of an unarmed African American man named Jamar Clark in Minneapolis, BLM released a statement declaring, “The Black Lives Matter Network urgently calls upon the Department of Justice to investigate this shooting as a hate crime” ( BlackLivesMatter.com 2015). Finally, BLM activists have regularly called for greater oversight over police and for increased presence of Black people in govern- ment decision-making bodies. For example, in the wake of numerous police killings of African Americans in recent years, the Los Angeles chapter of BLM demanded that the mayor appoint activists from the Black community to key city commissions, and a number of BLM activists are running for political office. When BLM demands inclusion in governmental bodies and invokes the language of hate crimes and terrorism, such efforts may appear to reflect the power of grass- roots movements to move state actors on important progressive issues, but it also indicates the movement’s willingness to expand troubling, controlling, authoritative, and at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 230 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 lethal state power. BLM is therefore not asking how we might build safe communities beyond the state, but rather how we might do so with greater state intervention. BLM co-founder Patrice Cullors’ vision of social change includes a plan to “divest from policing and divest from this prison system . . . and reinvest into poor communities, reinvest into allowing us to have access to healthy food, access to jobs, access to shelter” (Cullors 2015 ). From a pluralist perspective, states are sites where citizens and other stakeholders converge to elect representatives and make their voices heard and shape public policy (Dahl 2005 ). Departing from that view, a power elite perspective casts states as sites of power struggles, where certain interest groups tend to dominate others, setting public policy agendas and unevenly shaping life chances for members of society (Domhoff 2013 ). From Women of Color Feminist, Critical Race Theory, and Anarchist per- spectives, states are also institutions that, by definition, practice exclusion, control, and violence (in addition to their other functions) (Goldberg 2002 ; Hong 2006 ; Mills 2001 ; Scott 2010 ; Smith 2011 ). Thus, the very purpose of a state is to exert dominance over populations, resources, and territory, among other things. If Black Lives Matter was founded to challenge state-sanctioned violence then it makes sense to extend the reach of this movement’s analysis and action to the prob- lem of environmental racism. Since environmental racism is often a form of state- sanctioned violence via the harm that state agencies and state-regulated companies perpetrate in communities of color, then BLM might do well to pay greater attention to this issue. If we think of environmental racism as a form of violent control over bodies, space, and knowledge systems then we can more effectively theorize it as a form of state violence, a framework that is absent from most EJ scholarship. 2 More- over, as some BLM activists urge us to think about how to make our communities safe “beyond policing” (Tometi 2015 ), both BLM and EJ activists and scholars might begin to think about how to make our communities sites of EJ and racial justice beyond the state . In fact, the BLM movement, the EJ movement, and EJ scholarship generally look to the state and its legal systems to deliver justice and to regulate industry. Thus far, however, the track record of state-based regulation and enforcement of racial and environmental justice policies in communities of color has been abysmal (Cole and Foster, 2000 ; Gilmore 2007 ; Lombardi et al., 2015 ). The Fourth Pillar: Indispensability Critical EJ Studies centers on the concepts of racial and socioecological indispensability . In Black and Brown Solidarity ( 2014 ), John Márquez introduces the concept “racial expendability” to argue that Black and Brown bodies are, in the eyes of the state and its constituent legal system, generally viewed as criminal, deficient, threatening, and deserving of violent discipline and even obliteration. Márquez and other ethnic studies scholars contend that, in a White supremacist society, people of color are constructed as and rendered expendable (Cacho 2012 ; Márquez 2014 ; Mills 2001 ; Vargas 2010 ). Ruth Wilson Gilmore speaks to this point in her book Golden Gulag ( 2007 ), in which she argues that the massive build up of prisons to warehouse people of color in the state of California and the United States nationally was a public policy deci- sion designed to contain and control populations whose very existence is viewed as troubling. Extending this logic to the problem of environmental racism, philosopher and critical race theorist Charles Mills argues that people of African descent are con- sidered “trash” by policy makers and institutions promoting discriminatory envi- ronmental policies because these populations are associated with filth, waste, and uncleanliness in the popular imagination—thus locating pollution in their com- munities actually makes cultural common sense (Mills 2001 ). at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 231 Critical EJ Studies builds on the work of these scholars by countering the ideology of White supremacy and human dominionism and articulating the perspective that excluded, marginalized, and othered populations, beings, and things—both human and more-than-human—must be viewed not as expendable but rather as indispensable to our collective futures. This is what I term racial indispensability (when referring to people of color) and socioecological indispensability (when referring to broader commu- nities within and across the human/more-than-human divide and their relationships to one another). Racial indispensability is intended to challenge the logic of racial expendability and is the idea that institutions, policies, and practices that support and perpetrate anti-Black racism suffer from the flawed assumption that the future of African Americans is somehow de-linked from the future of White communities. People of color are members of our society, are core participants in our social systems, and are members of our socioecological systems, and are therefore key to ensuring the contin- ued functioning, sustainability, and resilience of our society and planet. The idea of indispensability is distinct from an assimilationist perspective, which seeks to (often involuntarily and violently) incorporate “others” into one’s own vision of a society (Smith 2005 ). Rather, indispensability honors key EJ and ecological prin- ciples by seeing all communities (more-than-human and human) as interconnected, interdependent, but also sovereign and requiring the solidarity of others. Indispens- ability should also not be confused with a Functionalist view of society and socio- ecological relations as it recognizes that social roles, positions, and behaviors among various populations can and do conflict and change over time, and that the character of inequality and state and market power in most societies is highly unjust and must be confronted. Functionalism, on the other hand, posits that whatever the character of inequality, social roles, and behaviors may be, it must be positive for society and there- fore is in no need of change (Parsons 1954 ). Indispensability argues against that logic because CEJ Studies is fundamentally focused on securing justice and sustainability in a highly unjust and unsustainable system. Thus indispensability demands dramatic change but does so from the perspective that all members of society and socioecologi- cal systems have something to contribute to that process and to our collective futures. Socially, politically, philosophically, and ecologically, what this means is that we are all linked in webs of social interdependence, so that what happens to one group affects, in some way, all others. As Dr. Martin Luther King, Jr. famously wrote in his landmark “Letter from Birmingham Jail” with regard to racism and the future of the United States: “Injustice anywhere is injustice everywhere. . . . In a real sense all life is inter-related. All men are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea . . .” (King 1963 ). Thus the importance of CEJ studies here is to underscore that social systems predicated on the annihilation of Black life reveal a self-defeating error. In other words, the idea that Whiteness can only triumph and survive via the annihilation of Black life commits the classic ecological error of dualism or separation . Dualism is the idea that we see various categories of existence as separate and arranged in oppo- sitional hierarchies, such as culture/nature, man/woman, European/non-European, human/animal, White/Black, heterosexual/homosexual, etc., when in fact these cate- gories are constantly blurred, transgressed, and revealed to be socially constructed and highly fluid and malleable. So CEJ Studies facilitates an understanding that a vision of White supremacy premised on the destruction of people of color is as illogical and self-defeating as a vision of an economy and a nation-state premised on the destruc- tion of ecosystems. In a sense, this observation demonstrates a reality of social systems as ecosystems, and vice versa: that everything in the universe is hitched to everything at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 232 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 else, so that what affects one member or element affects all of them. The destruction of people of color harms White people and it harms the more-than-human world, and vice versa, so CEJ Studies affirms that Black lives, the lives of people of color, are indis- pensable . Going further, the idea of socioecological indispensability reflects the CEJ Studies perspective that the wellbeing of all people, species, and ecosystems is indispensible . This is both a socioecological reality and an affirmation of a politics of solidarity and coalition building that firmly states “All of us or none!” Black Lives Matter activists routinely speak to this issue as well. In 2015, BLM issued a “State of the Black Union” in which they wrote, “None of us are free until all of us are free” ( DeclarationProject.org 2015). This is a variation on a quote that has been attributed to the likes of the poet Emma Lazarus, the Reverend Dr. Martin Luther King, Jr., and many others. It is also articulated powerfully in the Barry Mann song “None of Us Are Free,” which includes the chorus, “None of us are free, none of us are free, if one of us is chained, none of us are free.” Expressing this view more than a century ago, African American historian Anna Julia Cooper told a group of Black clergymen in 1892, “Only the Black woman can say ‘when and where I enter, in the quiet, undisputed dignity of my womanhood, without violence and without suing or special patronage, then and there the whole . . . race enters with me’” (Bailey 2004 , p. 56). A year later, making this claim even stronger, at the 1893 World’s Congress of Representative Women, Cooper stated: Let woman’s claim be as broad in the concrete as the abstract. We take our stand on the solidarity of humanity, the oneness of life, and the unnaturalness and injus- tice of all special favoritism, whether of sex, race, country, or condition. If one link of the chain is broken, the chain is broken. A bridge is no stronger than its weakest part, and a cause is not worthier than its weakest element. Least of all can woman’s cause afford to decry the weak. We want, then, as toilers for the universal triumph of justice and human rights, to go to our homes from this Congress demanding an entrance not through a gateway for ourselves, our race, our sex, or our sect, but a grand highway for humanity (Cooper 1892 ). BLM co-founder Alicia Garza echoes and articulates this idea as follows: #BlackLivesMatter doesn’t mean your life isn’t important—it means that Black lives, which are seen as without value within White supremacy, are important to your liberation. Given the disproportionate impact state violence has on Black lives, we understand that when Black people in this country get free, the benefits will be wide reaching and transformative for society as a whole. When we are able to end hyper-criminalization and sexualization of Black people and end the poverty, control, and surveillance of Black people, every single person in this world has a better shot at getting and staying free. When Black people get free, everybody gets free . This is why we call on Black people and our allies to take up the call that Black lives matter. . . . Our collective futures depend on it (Garza 2014 , emphasis added). DISCUSSION AND CONCLUSION Critical Environmental Justice Studies seeks to expand the field of EJ Studies to move beyond its conceptual, theoretical, disciplinary, and methodological limitations. Since that path is still very much in formation, this paper is an effort to chart one course in that direction with greater specificity. Critical EJ Studies draws from numerous fields at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 233 of scholarship in order to produce more robust accounts for why environmental injus- tices occur and persist, for how human and nonhuman forces shape and are shaped by them, and for what environmental justice might look like. That is, the promise of CEJ Studies lies in its capacity to more fully explain the sources and consequences of our socioecological crises and develop more generative analyses of how social change efforts within and across species may meet those challenges. Finally, CEJ Studies can aid scholars and advocates in thinking through a redefi- nition of the concept of environmental justice itself . Perhaps any discussion regarding the future of EJ Studies and the EJ movement might begin by connecting early EJ scholarship, which centers primarily around the intersection of social inequality and environmental harm, with the concept of ecological justice , which centers on the rela- tionship of human beings to the broader nonhuman world. By the term ecological justice, I mean to suggest a more respectful and egalitarian relationship of human beings to one another and to the greater more-than-human world. This model of analy- sis and politics begins with humans taking responsibility for practicing transforma- tive socioecological political work and extends to understanding inequalities within and across species and space to imagine and struggle for a more democratic multi- species world. Nonhuman species and ecosystems may not engage in politics the way humans tend to, but they can and do exert influence and power over the world (Bennett 2009 ): for example, consider the impacts of fossil fuels on the daily lives of human beings and on the political systems and economies of every nation on Earth. Ecological justice destabilizes the notion of the human as a biological category at the apex of a human/nature hierarchy and, instead, embraces it as a political cat- egory that engages with the broader ecological community. This model of politics also rejects the state as an arbiter of justice and inclusion. The state has managed, included, excluded, homogenized, and controlled humans and nonhuman natures for the benefit of a small elite. That should be reason enough to consider the merits of an anarchist or anti-authoritarian approach to socioecological change. Curiously, this concept of ecological justice closely mirrors and parallels the Principles of Envi- ronmental Justice—a sort of founding document of the U.S. EJ movement, suggest- ing that, in many ways, the EJ movement and EJ Studies have yet to catch up to the vision of the movement’s founding principles, which are largely aligned with a CEJ Studies perspective. In this paper, I applied a Critical Environmental Justice perspective to the phenomenon of the Black Lives Matter movement, demonstrating how attention to multiple categories of difference and inequality (including more-than-human species and the built environment); an emphasis on the role of scale as a way of understanding the violence of racism and the promise of resistance movements; a focus on linking the entrenched character of social inequalities with transformative, anti-authoritarian and anarchist perspectives; and an application of the concepts of racial and socioecological indispensability can produce an enriched account of that movement’s core concerns, its limitations, and its possibilities. Black Lives Matter challenges the scourge of state- sanctioned violence against diversely constituted communities of African descent, with a primary emphasis on police brutality and mass incarceration. I argue that if we think of environmental racism as an extension of those state-sanctioned practices—in other words a form of authoritarian control over bodies, space, and knowledge systems— then we can more effectively theorize it as a form of state violence, a framework that is absent from most EJ scholarship. Corresponding author : David N. Pellow, Environmental Studies Program, University of California Santa Barbara, 4312 Bren Hall, Santa Barbara, CA 93106-4160. E-mail: pellow@es.ucsb.edu at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 234 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 NOTES 1. After the November 2015 police killing of Jamar Clark, an unarmed African American male in Minneapolis, Minnesota, Black Lives Matter protesters demanded that the state prosecute the officers involved. The state declined to do so. 2. For exceptions, see, e.g., Liam Downey ( 2015 ) and Andrea Smith ( 2005 ). REFERENCES Adams , Carol J . ( 2010 ). The Sexual Politics of Meat: A Feminist-vegetarian Critical Theory . London : Bloomsbury Academic . Adamson , Joni ( 2011 ). Medicine Food: Critical Environmental Justice Studies, Native North American Literature, and the Movement for Food Sovereignty . Environmental Justice , 4 ( 4 ): 213 – 219 . Agyeman , Julian , Peter Cole , Randy Haluza-DeLay , and Pat O’Riley (Eds). ( 2010 ). Speaking for Ourselves: Environmental Justice in Canada . Seattle, WA : University of Washington Press . Ascione , Frank ( 1997 ). Battered Women’s Reports of Their Partners’ and Their Children’s Cruelty to Animals . Journal of Emotional Abuse , 1 ( 1 ): 119 – 133 . Bailey , Cathryn ( 2004 ). Anna Julia Cooper: ‘Dedicated in the Name of My Slave Mother to the Education of Colored Working People.’ Hypatia , 19 ( 2 ): 56 – 73 . Bell , Shannon Elizabeth ( 2013 ). Our Roots Run Deep as Ironweed: Appalachian Women and the Fight for Environmental Justice . Champaign, IL : University of Illinois Press . Bennett , Jane ( 2009 ). Vibrant Matter: A Political Ecology of Things . Durham, NC : Duke University Press . Bijan , Stephen ( 2015 ). Social Media Helps Black Lives Matter Fight the Power. Wired, November 2015 . < http://www.wired.com/2015/10/how-black-lives-matter-uses-social-media-to-fight- the-power/ > (accessed June 2, 2016). BlackLivesMatter.com ( 2016 ). All #BlackLivesMatter: This is Not a Moment, but a Movement. < http://www.blacklivesmatter.com/about > (accessed June 23, 2016). BlackLivesMatter.com ( 2015 ). DOJ: Protect Black Activists from White Vigilante Violence. < https://www.facebook.com/BlackLivesMatter/posts/513206922183891 > (accessed June 23, 2016). Brydum , Sunnivie ( 2015 ). Alicia Garza Taking Black Lives Matter into Another Dimension. The Advocate , December 9. < http://www.advocate.com/40-under-40/2015/12/09/alicia-garza- taking-black-lives-matter-another-dimension > (accessed June 2, 2016). Buckingham , Susan and Rakibe Kulcur ( 2010 ). Gendered Geographies of Environmental Justice . In Ryan Holifield , Michael Porter , and Gordon Walker (Eds.), Spaces of Environmental Justice , pp. 70 – 94 . New York : Wiley-Blackwell . Bullard , Robert D . ( 2000 ). Dumping in Dixie: Race, Class, and Environmental Quality . Boulder, CO : Westview Press . Cacho , Lisa ( 2012 ). Social Death: Racialized Rightlessness and the Criminalization of the Unprotected . New York : New York University Press . Change.org ( 2015 ). Terminate Officer Jennifer Lynne Silver. Online petition to Baltimore Mayor Stephanie Rawlings-Blake. April. < https://www.change.org/p/mayor-stephanie- rawlings-blake-commissioner-anthony-batts-captain-douglas-irwin-terminate-officer- jennifer-lynne-silver > (accessed June 23, 2016). Cole , Luke and Sheila Foster ( 2000 ). From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement . New York : New York University Press . Collins , Patricia Hill ( 2008 ). Black Feminist Thought . New York : Routledge . Cooper , Ana Julia ( 1892 ). A Voice from the South . New York : Aldine Printing . Cullors , Patrisse ( 2015 ). Interview on Democracy Now! July 24. < http://www.democracynow. org/2015/7/24/part_2_blacklivesmatter_founders_on_immigration > (accessed June 2, 2016). Dahl , Robert ( 2005 ). Who Governs? Democracy and Power in an American City . New Haven, CT : Yale University Press . DeclarationProject.org ( 2015 ). State of the Black Union. January 22. < http://www.declara- tionproject.org/?p=1654 > (accessed June 23, 2016). Domhoff , G. William ( 2013 ). Who Rules America? The Triumph of the Corporate Rich . New York : McGraw-Hill Education Downey , Liam ( 2015 ). Inequality, Democracy and the Environment . New York : New York University Press . at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core Critical Environmental Justice Studies DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 235 Ellison , Keith and Van Jones ( 2015 ). Pollution Isn’t Colorblind. The Guardian , July 24. < http://www.theguardian.com/commentisfree/2015/jul/23/black-lives-matter-air-pollution > (accessed June 2, 2016). Fantz , Ashley , George Howell , and Catherine Shoichet ( 2014 ). Gunshots, Tear Gas in Missouri Town Where Police Shot Teen. CNN.com , August 12. < http://www.cnn.com/2014/08/11/ us/missouri-teen-shooting/ > (accessed June 2, 2016). Friedersdorf , Conor ( 2015 ). The Brutality of Police Culture in Baltimore. The Atlantic , April 22. < http://www.theatlantic.com/politics/archive/2015/04/the-brutality-of-police-culture-in- baltimore/391158/ > (accessed June 2, 2016). Furst , Randy ( 2016 ). Protesters Demand Prosecution of Officers Involved in Jamar Clark Shooting. Minneapolis Star Tribune , February 12. < http://m.startribune.com/protesters- demand-prosecution-of-officers-involved-in-jamar-clark-shooting/368675951/ > (accessed June 22, 2016). Gaard , Greta ( 2004 ). Toward a Queer Ecofeminism . In Rachel Stein (Ed.), New Perspectives on Environmental Justice , pp. 21 – 44 . New Brunswick, NJ : Rutgers University Press . Garza , Alicia ( 2014 ). A Herstory of the #BlackLivesMatter Movement. The Feminist Wire , December 6. < http://www.thefeministwire.com/2014/10/blacklivesmatter-2/ > (accessed June 2, 2016). Garza , Alicia ( 2015 ). Interview on Democracy Now! July 24. < http://www.democracynow. org/2015/7/24/part_2_blacklivesmatter_founders_on_immigration > (accessed June 2, 2016). Gilmore , Ruth Wilson ( 2007 ). Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California . Berkeley, CA : University of California Press . Goldberg , David Theo ( 2002 ). The Racial State . Oxford, UK : Blackwell Publishers . Griswold , Alex ( 2015 ). CNN Guest: Black Men ‘Hunted Down Like Deer and Like Dogs.’ The Daily Caller , April 14. < http://dailycaller.com/2015/04/14/cnn-guest-black-men-in-america- hunted-down-like-deer-and-like-dogs-video/ > (accessed June 2, 2016). Harlan , Sharon , David N. Pellow , and J. Timmons Roberts , with Shannon Elizabeth Bell , William G. Holt , and Joane Nagel ( 2015 ). Climate Justice and Inequality . In Riley Dunlap and Robert J. Brulle (Eds.), Climate Change and Society: Sociological Perspectives , pp. 127 – 163 . Oxford, UK : Oxford University Press . Herod , Andrew ( 2011 ). Scale . London : Routledge . Holifield , Ryan , Michael Porter , and Gordon Walker ( 2010 ). Introduction—Spaces of Envi- ronmental Justice—Frameworks for Critical Engagement . In Ryan Holifield , Michael Porter , and Gordon Walker (Eds.), Spaces of Environmental Justice , pp. 1 – 22 . Oxford, UK : Wiley-Blackwell . Hong , Grace Kyungwon Hong ( 2006 ). Ruptures of American Capital: Women of Color Feminism and the Culture of Immigrant Labor . Minneapolis, MN : University of Minnesota Press . Kang , Jerry ( 2005 ). Trojan Horses of Race . Harvard Law Review , 118 : 1489 – 1593 . King , Martin Luther , Jr . ( 1963 ). Letter from Birmingham Jail. < https://www.africa.upenn. edu/Articles_Gen/Letter_Birmingham.html > (accessed August 5, 2016). Lombardi , Kristen , Talia Buford , and Ronnie Greene ( 2015 ). Environmental Justice, Denied. Center for Public Integrity. August 3. < https://www.publicintegrity.org/environment/ environmental-justice-denied > (accessed March 1, 2016). Márquez , John ( 2014 ). Black-Brown Solidarity . Austin, TX : University of Texas Press . Mills , Charles ( 2001 ). Black Trash . In Laura Westra and Bill E. Lawson (Eds.), Faces of Environ- mental Racism , pp. 73 – 93 . Lanham, MD : Rowman & Littlefield . Moore , Darnell and Patrisse Cullors ( 2014 ). 5 Ways to Never Forget Ferguson—And Deliver Real Justice for Michael Brown. The Guardian.com , September 4. < https://www.theguardian. com/commentisfree/2014/sep/04/never-forget-ferguson-justice-for-michael-brown > (accessed on June 22, 2016). Morris , Aldon ( 1984 ). Origins of the Civil Rights Movement . New York : Free Press . Nazaryan , Alexander ( 2014 ). The U.S. Department of Defense is one of the World’s Biggest Polluters. Newsweek , July 17. < http://www.newsweek.com/2014/07/25/us-department-defence- one-worlds-biggest-polluters-259456.html > (accessed March 1, 2016). Nibert , David and Michael W. Fox ( 2002 ). Animal Rights/Human Rights . Lanham, MD : Rowman and Littlefield . Nichols , Jason ( 2015 ). Black Baltimore Residents Aren’t ‘Animals.’ We Punish People for Killing ‘Animals.’ The Guardian , April 28. http://www.theguardian.com/commentisfree/2015/ apr/28/black-baltimore-residents-arent-animals-we-punish-people-for-killing-animals > (accessed June 2, 2016). Parsons , Talcott ( 1954 ). Essays in Sociological Theory . New York : The Free Press . at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core David N. Pellow 236 DU BOIS REVIEW: SOCIAL SCIENCE RESEARCH ON RACE 13:2, 2016 Pellow , David N . ( 2007 ). Resisting Global Toxics . Cambridge, MA : The MIT Press . Pellow , David N. and Robert J. Brulle (Eds.) ( 2005 ). Power, Justice, and the Environment . Cambridge, MA : The MIT Press . Pulido , Laura ( 1996 ). A Critical Review of the Methodology of Environmental Racism Research . Antipode , 28 ( 2 ): 142 – 159 . Ringquist , E. J . ( 2005 ). Assessing Evidence of Environmental Inequities . Journal of Policy Analysis and Management , 24 ( 2 ): 223 – 247 . Roberts , J. Timmons and Bradley Parks ( 2006 ). A Climate of Injustice . Cambridge, MA : The MIT Press . Scott , James ( 2010 ). The Art of Not Being Governed . New Haven, CT : Yale University Press . Smith , Andrea ( 2005 ). Conquest: Sexual Violence and American Indian Genocide . Boston, MA : South End Press . Smith , Mick ( 2011 ). Against Ecological Sovereignty . Minneapolis, MN : University of Minnesota Press . Smits , David ( 1994 ). The Frontier Army and the Destruction of the Buffalo: 1865-1883 . The Western Historical Quarterly , 25 ( 3 ): 312 – 338 . Sze , Julie ( 2006 ). Boundaries and Border Wars: DES, Technology, and Environmental Justice . American Quarterly , 58 ( 3 ) 791 – 814 . Sze , Julie ( 2016 ). Scale . In Joni Adamson , William Gleason , and David N. Pellow (Eds.), Keywords for Environmental Studies , pp. 178 – 180 . New York : New York University Press . Tometi , Opal ( 2015 ). Interview on Democracy Now! July 24. < http://www.democracynow. org/2015/7/24/part_2_blacklivesmatter_founders_on_immigration > (accessed June 2, 2016). Vargas , Joao H. Costa ( 2010 ). Never Meant to Survive: Genocide and Utopias in Black Diaspora Communities . Lanham, MD : Rowman & Littlefield . Walker , Gordon ( 2010 ). Beyond Distribution and Proximity: Exploring the Multiple Spatiali- ties of Environmental Justice . In Ryan Holifield , Michael Porter , and Gordon Walker (Eds.), Spaces of Environmental Justice , pp. 24 – 46 . Oxford, UK : Wiley-Blackwell . Williams , David R. and Chiquita Collins ( 1995 ). U.S. Socioeconomic and Racial Differences in Health: Patterns and Explanations . Annual Review of Sociology , 21 : 349 –86. at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1742058X1600014X Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:26, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/S1742058X1600014X https://www.cambridge.org/core 
work_hmtgbexb3ndqtdfoktbo5ct5j4	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221738797 Params is empty 221738797 exception Params is empty 2021/04/06-03:20:37 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221738797 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:37 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_hp6aiugsubd6zm37dmbbmyyz74	----	23 ­Pomirenje Po­nov­no­us­po­sta­vlja­nje­prav­de­u­Sr­bi­ji­–­­ Po­mi­re­nje­i­re­sto­ra­tiv­na­prav­da­­ u­postkon­flikt­nom­kon­tek­stu Step han par Men ti er* Mar ta Va li ñaS el Mar We i te kaMp De ba ta o to me ka ko se ba vi ti pro šlo šću u Sr bi ji je i da lje pri sut na. Me ha ni zmi prav de Me đu na rod nog kri vič nog tri bu na la za biv šu Ju go sla vi ju i do ma ćih su do va od i gra li su va žnu ulo gu u kri vič nom go nje nju po či ni la ca zlo či na. O dru gim pri stu pi ma tran zi ci- o noj prav di i da lje se ras pra vlja. Sve u sve mu, is ku stva biv še Ju go sla vi je i Sr bi je sa „su o- ča va njem sa pro šlo šću” ili „tran zi ci o nom prav dom” su slič na is ku stvi ma dru gih ze ma lja, jer se od i gra va ju unu tar po li tič ke i eko nom ske eli te, i u okvi ru ci vil nog dru štva, ka ko u ze mlji o ko joj je reč, ta ko i na me đu na rod nom ni vou. Slič no, sta vo vi i oče ki va nja lo kal- nog sta nov ni štva u bi lo ko joj ze mlji se ret ko uzi ma ju u ob zir. U ovom ra du pred sta vlje ni su re zul ta ti is tra ži va nja na uzor ku ši re po pu la ci je ko je je spro veo naš is tra ži vač ki tim u Sr bi ji 2007. go di ne. Is tra ži va nje je vr še no pu tem an ke ti ra nja ši rom ze mlje u ve zi ne ko li ko pi ta nja ve za nih za post-kon flikt nu prav du, uklju ču ju ći tra ga nje za isti nom, od go vor nost, na kna du šte te žr tva ma i po mi re nje. Ključ ne re či: sta vo vi gra đa na, ljudska prava, re sto ra tiv na prav da, po mi re nje, Sr bi ja. TEMIDA Mart 2010, str. 23-41 ISSN: 1450-6637 DOI: 10.2298/TEM1001023P Izvorni naučni rad * Step han Par men ti er je pro fe sor so ci o lo gi je kri mi na la, pra va i ljud skih pra va na Uni ver zi te tu Le u ven, Belgija i na čel nik Ode lje nja za kri vič no pra vo i kri mi no lo gi ju. E-mail: step han.par- men ti er @law.ku le u ven.ac.be Mar ta Va li ñas je is tra ži va či ca i sa rad ni ca na Uni ver zi te tu Le u ven, Belgija gde za vr ša va svo ju dok tor sku di ser ta ci ju. E-mail: mar ta.va li nas @law.ku le u ven.be El mar We i te kamp je pro fe sor vik ti mo lo gi je i re sto ra tiv ne prav de na Uni ver zi te ti ma u Le u ve- nu, Belgija i Ti bin ge nu, Nemačka. E-mail: el mar.we i te kamp @u ni-tu e bin gen.de Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 24 Uvod Še sna est go di na na kon po čet ka ras pa da Ju go sla vi je i su ko ba ko ji su opu- sto ši li ce lu re gi ju, ali naj vi še Hr vat sku, Bo snu i Her ce go vi nu, Sr bi ju i Ko so vo, sva ka od ze ma lja još uvek se tru di da pro na đe naj bo lji na čin da se po sta vi pre ma zlo či ni ma ko ji su se do go di li u pro šlo sti i nji ho vim po sle di ca ma i da ob no vi po ve re nje me đu svo jim gra đa ni ma. Ras pra va o to me ka ko se su o či ti s pro šlo šću u Sr bi ji je i da lje u to ku. Od 1993. go di ne, Me đu na rod ni kri vič ni sud1 za biv šu Ju go sla vi ju op tu žio je 161 oso bu, a od tog bro ja 120 li ca je pro šlo kroz pro ces su đe nja u 86 po stu pa ka (jun 2009) ve za nih za „me đu na rod na” kri vič na de la na pod ruč ju re gi o na. Ta ko đe, u sa moj ze mlji kre i ra ni su no vi me ha ni zmi kri vič nog pra vo su đa, kao što je Ve će za rat ne zlo či ne Okru žnog su da u Be o gra du. O dru gim pri stu pi ma tran zi ci o noj prav di kao što su Ko mi si ja za isti nu ili pro gra mi za na kna du šte te i da lje se ras pra vlja. De ba ta o „me đu na rod nim” zlo či ni ma iz pro šlo sti ta ko i da lje ima ve li ki zna čaj za lju de, or ga ni za ci je i in sti tu ci je u Sr bi ji. U ovom kon- tek stu „me đu na rod na” kri vič na de la kao re la tiv no no vi kon cept ne mo gu se po i sto ve ći va ti sa sta ri jim kon cep tom „dr žav nih” kri vič nih de la (Fri e drichs, 1998; Ka u zla rich, Mul lins i Mat thews, 2003): sa jed ne stra ne, „dr žav na” kri vič na de la pred sta vlja ju ši ru ka te go ri ju od „me đu na rod nih”, jer ona uklju ču ju i po na- ša nja ko ja se tra di ci o nal no ne sma tra ju na sil nim, kao što su de la iz da je, špi ju- na že i ko rup ci je; sa dru ge stra ne, „dr žav na” kri vič na de la su i uža od „me đu na- rod nih”, jer njih či ne oso be ili in sti tu ci je ko ji ma je po ve re na dr žav na vlast, dok „me đu na rod na” kri vič na de la mo gu bi ti uči nje na od stra ne ne dr žav nih ak te ra, kao što su ge ril ske gru pe ili in di vi due. Cen tral no pi ta nje ovog do pri no sa je ka ko raz u me ti po nov no us po sta vlja nje prav de za „me đu na rod na” kri vič na de la, po či nje na u Sr bi ji, uglav nom iz po li tič kih mo ti va. Sve u sve mu, is ku stva biv še Ju go sla vi je i Sr bi je sa „su o ča va njem sa pro šlo- šću” ili „tran zi ci o nom prav dom” su slič na is ku stvi ma dru gih ze ma lja, jer se od i- gra va ju unu tar po li tič ke i eko nom ske eli te, i u okvi ru ci vil nog dru štva, ka ko u ze mlji o ko joj je reč, ta ko i na me đu na rod nom ni vou. Slič no, sta vo vi i oče ki va- nja lo kal nog sta nov ni štva u bi lo ko joj ze mlji se ret ko uzi ma ju u ob zir. Ka da bi se to ura di lo, obez be dio bi se do dat ni iz vor in for ma ci ja o stra te gi ja ma i me ha- ni zmi ma za su o ča va nje sa zlo či ni ma iz pro šlo sti i za re kon struk ci ju bu duć- no sti. Iako su is tra ži va nja na uzor ku ši re po pu la ci je iz u ze tak, isti na je da smo 1 Vi di sajt: www.icty.org Temida 25 po sled njih go di na sve do ci br zog ra sta em pi rij skih is tra ži va nja spro ve de nih u post-kon flikt nim si tu a ci ja ma, a po ne kad i u to ku tra ja nja su ko ba (In ter na ti o nal Cen ter for Tran si ti o nal Ju sti ce, 2004, 2006, 2007). U ovom ra du pred sta vi će mo, po pr vi put, iz ve štaj o re zul ta ti ma is tra ži va nja na uzor ku ši re po pu la ci je ko je je naš is tra ži vač ki tim2 u Sr bi ji 2007. go di ne spro- veo pu tem an ke ti ra nja ši rom ze mlje u ve zi ne ko li ko pi ta nja ve za nih za post- kon flikt nu prav du. Mi će mo se sa mo fo ku si ra ti na je dan ta kav pro blem ov de – na po mi re nje iz me đu po je di na ca i iz me đu sek to ra u dru štvu. Glav ni ci lje vi na šeg do pri no sa su dvo ja ki: sa jed ne stra ne, že li mo po ka za ti vred nost em pi rij- skog is tra ži va nja na uzor ku lo kal nog sta nov ni štva o post-kon flikt noj prav di, a sa dru ge stra ne, na me ra nam je da is tak ne mo ove na la ze za ši ri te o rij ski okvir re sto ra tiv ne prav de kao pa ra dig me za po gled na zlo či ne iz pro šlo sti. Šta lju di u Sr bi ji mi sle o zlo či ni ma po či nje nim to kom ra ta i o stra te gi ja ma i me ha ni zmi ma za su o ča va nje sa stra ho ta ma iz pro šlo sti? To su dva glav na pi ta nja na osno vu ko jih smo is pla ni ra li i spro ve li kvan ti ta tiv no an ket no is tra- ži va nje na uzor ku srp ske po pu la ci je 2007. go di ne. Is tra ži va nje je bi lo deo ši reg is tra ži vač kog pro jek ta „Ma sov na vik ti mi za ci ja i re sto ra tiv na prav da“ u po tra zi za po zi ci jom re sto ra tiv ne prav de u in te gra tiv nom pri stu pu ma sov noj vik ti- mi za ci ji u post-kon flikt nim si tu a ci ja ma. Stu di je u Bo sni i Her ce go vi ni i Sr bi ji, oba vio je In sti tut za kri mi no lo gi ju na Ka to lič kom Uni ver zi te tu u Le u ve nu (Bel- gi ja) iz me đu 2004. i 2008. go di ne. Cilj ovog pro jek ta bio je da se is tra ži šta to mo že bi ti ulo ga i ka ko se mo gu pri me ni ti prin ci pi re sto ra tiv ne prav de u pro- ce su re ša va nja post-kon flikt nih si tu a ci ja ko je uklju ču ju ma sov nu vik ti mi za ci ju, uzi ma ju ći Sr bi ju i Bo snu i Her ce go vi nu kao dve stu di je slu ča ja i spro vo de ći dva vr lo slič na is tra ži va nja u obe ze mlje. Dok je fo kus is tra ži va nja bio na re sto- ra tiv noj prav di, tre ba lo bi po me nu ti da su sa me an ke te bi le usme re ne na još mno ga pi ta nja u obe post-kon flikt ne si tu a ci je. 2 Is tra ži vač ki tim či ni li su Step han Par men ti er i El mar We i te kamp (pro mo te ri) i Mar ta Va li ñas (is tra ži va či ca). Auto ri že le da se za hva le Ka to lič kom Uni ver zi te tu u Le u ve nu na fi nan sij skoj po dr šci za pro je kat, Fla man skom ake dem skom cen tru i Kra ljev skoj aka de mi ji za na u ku i umet nost u Bri se lu za stva ra nje sa vr še nih aka dem skih uslo va za do vr ša va nje ra da, pro fe so- ru Jo ha nu Go et hals-u i pro fe sor ki Ve sni Ni ko lić-Ri sta no vić iz Vik ti mo lo škog dru štva Sr bi je na kon struk tiv nim ko men ta ri ma na ra nu ver zi ju em pi rij skog de la is tra ži va nja. Is tra ži vač kom ti mu je Vik ti mo lo ško dru štvo Sr bi je pru ži lo ve li ku po moć. Ovaj rad je do pu nje na ver zi ja po gla vlja ko je će bi ti ob ja vlje no u knji zi: Par men ti er, S., Va li ñas, M., We i te kamp, E. (iz la zi u 2010) How to re sto re ju sti ce in Ser bia? A clo ser lo ok at pe o ple’s opi ni ons abo ut re con ci li a tion. In D. Rot he & C. Mul lins (eds.) Cri mes of Sta te: Cur rent Per spec ti ves. Pi sca ta way, NJ: Rut gers Uni ver sity Press. Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 26 Cilj is tra ži va nja bio je da se sa zna ne što vi še o sta vo vi ma i mi šlje nji ma3 po je di na ca o pro ce su su o ča va nja sa pro šlo šću (ili tran zi ci o ne prav de) u Sr bi ji, sa po seb nim na gla skom na „mo guć no sti“ i po ten ci jal re sto ra tiv nog pri stu pa ta kvom pro ce su. Za ana li zu ovih sta vo va i mi šlje nja ko ri sti li smo he u ri stič ki TA RR mo del (Par men ti er, 2003; Par men ti er i We i te kamp, 2007). Ovaj mo del se sa sto ji od če ti ri gra div na blo ka ko ji od go va ra ju ključ nim pi ta nji ma u pro ce su su o ča va nja no vog re ži ma sa pro šlo šću, a to su: po tra ga za isti nom o pro šlo- sti (T), ka ko bi se osi gu ra la od go vor nost po či ni te lja (A) i ne ki ob lik re pa ra ci je za žr tve (R), ali i ka ko bi se pro mo vi sa lo po mi re nje iz me đu biv ših ne pri ja te- lja (R). Ovaj mo del pru ža ko ri stan okvir za ana li zu raz li či tih od no sa iz me đu dva ili vi še gra div nih blo ko va, omo gu ća va da se is tra že od re đe ne in sti tu ci je i me ha ni zmi su o ča va nja sa pro šlo šću u od no su na sva ko od ovih pi ta nja, a i su ge ri še da re zul tat pri stu pa tran zi ci o noj prav di pro iz i la zi iz me đu dej stva ova če ti ri gra div na blo ka (We i te kamp, Par men ti er, Van spa u wen, Va li ñas i Ge rits, 2006). An ke ti ra nje je spro ve de no ta ko da uklju či pi ta nja ve za na za sva ko od ova če ti ri ključ na pi ta nja. Me­tod Me tod is tra ži va nja ko ri šćen u ovoj stu di ji bi la je an ke ta spro ve de na kroz pi sa ne upit ni ke di stri bu i ra ne po ce loj Sr bi ji. Me to do lo gi ja se sa sto ja la od če ti ri osnov na ko ra ka (Va li ñas, Par men ti er i We i te kamp, 2008): 1) Kon struk ci ja in stru men ta za pri ku plja nje po da ta ka: u pi ta nju je od štam- pa ni upit nik sa ukup no 43 pi ta nja, od ko jih ne ka ima ju od go vo re ko ji is klju ču ju jed ni dru ge, ne ka ima ju vi še mo gu ćih od go vo ra, a ne ka od is pi- ta ni ka tra že da ozna če ste pen sla ga nja sa al ter na tiv nim od go vo ri ma na po sta vlje no pi ta nje. Sva ova pi ta nja bi la su za tvo re na ili po lu za tvo re na, sa jed nim iz u zet kom – po sled njim pi ta njem „Šta po mi re nje zna či za Vas?“ ko je je is pi ta ni ci ma omo gu ća va lo da iz ra ze svo je mi šlje nje na vr lo otvo- ren i ne de ter mi ni san na čin. Upit nik su kon stru i sa li čla no vi is tra ži vač kog ti ma u pe ri o du iz me đu fe bru a ra i ma ja 2006. go di ne, na osno vu sle de ćih 3 Stav je men tal na po zi ci ja u od no su na ne ku či nje ni cu ili sta nje. On od ra ža va ten den ci ju da se objek ti i do ga đa ji kla si fi ku ju i da se na njih re a gu je sa od re đe nom do sled no šću. Sta vo vi se ne mo gu di rekt no po sma tra ti, već se iz vla če iz objek tiv nih i eva lu i ra nih od go vo ra oso be. Mi šlje nja pred sta vlja ju ide je i mi sli ne ke oso be o ne če mu. To su pro ce ne, su do vi o ne če mu ili eva lu a ci je ne če ga. De fi ni ci je su pre u ze te iz Encyclo pa e dia Bri tan ni ca. Temida 27 iz vo ra: dva is tra ži va nja sa slič nim ci lje vi ma, pre ci zni je kom pa ra tiv na stu di ja spro ve de na na Maks Plank In sti tu tu za ino stra no i me đu na rod no kri vič no pra vo o vik ti mi za ci ji u ra tu (Ki za, Rat hge ber i Roh ne, 2006), kao i is tra ži va- nje UNDP-a u Bo sni i Her ce go vi ni (UNDP, 2005); po da ci ko je je is tra ži va či ca pri ku pi la to kom pret hod nih is tra ži va nja na te re nu u Sr bi ji uglav nom kroz po lu struk tu ri sa ne in ter vjue sa ključ nim ak te ri ma u pro ce su su o ča va nja sa pro šlo šću; po da ci pri ku plje ni na ra di o ni ci ko ju je or ga ni zi vao is tra ži vač ki tim u Du brov ni ku (Hr vat ska) u ma ju 2005. go di ne i na se mi na ru odr ža nom u Sa ra je vu (Bo sna i Her ce go vi na) u ok to bru 2006. go di ne, a oba su se ti ca la pro ce sa su o ča va nja sa pro šlo šću u re gi o nu. Upit nik je naj pre ko ri šćen u slič nom is tra ži va nju u Bo sni i Her ce go vi ni 2006. go di ne, a ka sni je je pri la- go đen spe ci fič noj si tu a ci ji u Sr bi ji. 2) Od re đi va nje od go va ra ju će me to de uzor ko va nja: s ob zi rom na po te ško će u ko ri šće nju po u zda nih po da ta ka iz po pi sa sta nov ni štva4 u Sr bi ji ni je bi lo mo gu će da se for mi ra pra vi re pre zen ta tiv ni uzo rak, pa je ume sto nje ga oda bran kvot ni uzo rak5. Ovo je pod ra zu me va lo de lje nje cilj ne po pu la ci je (gra đa ne i sta nov ni ke Sr bi je) u pod gru pe na osno vu tri kri te ri ju ma ko ji su nam bi li od zna ča ja: ge o graf ska di stri bu ci ja (ši rom dr ža ve, sa iz u zet kom Ko so va i Me to hi je), uz rast (usme re nost na ve li ku gru pu sta ro sti iz me đu 26 i 64 go di ne, ma nju gru pu iz me đu 18 i 25 go di na, kao i još jed nu ma nju gru pu sta ro sti pre ko 65 go di na) i pol (ujed na če ne gru pe mu ška ra ca i že na) i utvr đi va nje pro por ci je uzor ka u sva koj od ka te go ri ja. Za raz li ku od slič nog is tra ži va nja spro ve de nog u Bo sni i Her ce go vi ni, u Sr bi ji re li gi ja i et nič ka pri- pad nost ni su bi li raz dvo je ni kri te ri ju mi za kvot no uzor ko va nje, ali od is pi- ta ni ka je ste za tra že no da na ve du svo ju re li gij sku i et nič ku pri pad nost. 3) Pri ku plja nje po da ta ka kroz di stri bu ci ju upit ni ka: upit ni ci su po de lje ni u ju nu 2007. go di ne na 16 raz li či tih lo ka ci ja u Sr bi ji od stra ne pri pad ni ka 19 ne vla di nih or ga ni za ci ja ko je pri pa da ju Aso ci ja ci ji Za jed nič ka Ak ci ja za Isti nu i Po mi re nje6. Sva ka od ovih ne vla di nih or ga ni za ci ja ra di na pi ta nji ma 4 Ka da ka rak te ri sti ke po pu la ci je ni su u pot pu no sti ili do volj no po zna te, ni je mo gu će na pra vi ti re pre zen ta tiv ni uzo rak. Ta da uzo r ko va nje za sno va no na ve ro vat no ći i oda bir slu čaj nog uzor- ka ni su uvek ade kvat ni. 5 Raz li ka iz me đu kvot nog uzor ka (me to de uzor ko va nja ko ja ni je za sno va na na ve ro vat no ći) i stra ti fi ko va nog slu čaj nog uzor ka se sa sto ji u to me što kod kvot nog uzor ko va nja ko na čan iz bor po je di nač nih is pi ta ni ka za vi si od is tra ži va ča od no sno ni je slu ča jan (Bryman, 2008). 6 Pri stup ne vla di nim or ga ni za ci ja ma i is pi ta ni ci ma obez be đen je kroz bli sku sa rad nju sa Vi ki- mo lo škim dru štvom Sr bi je i ovom pri li kom se za hva lju je mo pro fe sor ki Ve sni Ni ko lić-Ri sta no- vić i Da ni je li Bje lić na po mo ći. Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 28 po ve za nim sa pred me tom na šeg is tra ži va nja i ima raz li či te cilj ne po pu- la ci je (iz be gli ce, žr tve tor tu re, rat ni ve te ra ni, itd.). Or ga ni za ci ja ma su da ti sli čan broj upit ni ka (oko 50) i ja sne in struk ci je ve za ne za kri te ri ju me se lek- ci je is pi ta ni ka. Ka ko bi se osi gu ra la kom pa ti bil nost sa ra ni je pri ku plje nim po da ci ma u Bo sni i Her ce go vi ni, oso be ko je su de li le upit ni ke za mo lje ne su da deo upit ni ka da ju čla no vi ma svo jih or ga ni za ci ja, a deo osta lim gra- đa ni ma, uz po što va nje ano nim no sti svih is pi ta ni ka. Od ukup nog bro ja od 1200 upit ni ka, vra će no je i po pu nje no 922 od no sno 85% - vi sok pro ce nat ti pi čan za me to de pri god nog uzor ko va nja (Bryman, 2008). 4) Ana li za pri ku plje nih po da ta ka: kre i ra na je ma ska u SPSS pro gra mu i svi po da ci su une ti od stra ne me to do lo ga iz Sr bi je, ko ji je ta ko đe spro veo i ne ko li ko ni voa ana li ze, uklju ču ju ći i uni va ri jant ne i bi va ri jant ne ana li ze, ko re la ci je i re gre si o nu ana li zu. Svi po da ci pre zen to va ni u na red nom de lu tek sta re zul tat su ovog če tvo- ro ste pe nog pro ce sa pri ku plja nja i ana li ze po da ta ka. In­stru­ment Po što smo bi li sve sni uti ca ja rat nih is ku sta va po je di na ca na nji ho vo sa da- šnje mi šlje nje i sta vo ve pre ma te mi post-kon flikt ne prav de, po ku ša li smo da raz u me mo ka kav je bio tip i ste pen vik ti mi za ci je ko je su na ši is pi ta ni ci pre ži- ve li. Pr vi deo upit ni ka je za to bio po sve ćen pi ta nji ma ko ja su bi la ve za na za ob li ke di rekt ne (npr. fi zič ke po vre de is pi ta ni ka) i in di rekt ne vik ti mi za ci je (npr. gu bi tak čla na po ro di ce). Šta vi še, is pi ta ni ci su upi ta ni o to me ka ko su opa ža li svo ju pat nju kroz tri ob li ka: fi zič ki, ma te ri jal ni i psi ho lo ški i u dva vre men ska pe ri o da – pre i po sle ra ta. Od go vo ri su nam omo gu ći li da za klju či mo da je u na šem uzor ku naj vi še is pi ta ni ka pa ti lo emo tiv no to kom i na kon ra ta, ne što ma nje njih je pre tr pe lo ma te ri jal nu šte tu, a naj ma nje je bi lo onih sa po vre- da ma fi zič ke pri ro de. Ovi re zul ta ti su pot pu no sa gla sni sa re zul ta ti ma is tra ži- va nja spro ve de nog u Bo sni i Her ce go vi ni 2006. go di ne. Va žno je pri me ti ti da su is pi ta ni ci u is tra ži va nju u Sr bi ji pri ja vi li vik ti mi za ci ju ve za nu za tri glav na na sil na kon flik ta, rat u Hr vat skoj 1991-1995 (36%), NA TO bom bar do va nje 1999. go di ne (24%) i rat u Bo sni i Her ce go vi ni (20.8%). Ne ki is pi ta ni ci su pri ja vi li vik- ti mi za ci ju u ra tu na Ko so vu i Me to hi ji po čev od 1998. go di ne (15%), a ma li broj njih i u kon flik tu u Slo ve ni ji 1991. go di ne (4.2%). Dru gi deo upit ni ka sa dr žao je raz li či ta pi ta nja sme šte na pod če ti ri raz li či ta na slo va: tra ga nje za isti nom, Temida 29 omo gu ća va nje pri zna nja od go vor no sti, is pla ta od šte te i pro mo ci ja po mi re nja. U ovom ra du mi se ogra ni ča va mo na pri kaz ne kih aspe ka ta ve za nih za te mu po mi re nja u Sr bi ji. Pre ne go što pre đe mo na naj i stak nu ti je na la ze, va žno je na gla si ti da su sva pi ta nja po sta vlje nja svim is pi ta ni ci ma u is tra ži va nju, a ne sa mo oni ma ko ji bi mo gli da se oka rak te ri šu kao „žr tve“ u prav nom ili so ci o lo škom smi slu. Raz- log to me je taj što je u na sil nim kon flik ti ma (kao što je bio onaj u Ju go sla vi ji) prak tič no ne mo gu će na pra vi ti ta ko ja snu raz li ku iz me đu onih ko ji su sa mo po či ni o ci i onih ko ji su sa mo žr tve, po što po je din ci mo gu po ne kad pre u ze ti raz li či te ulo ge, čak ih i za me ni ti u raz li či tim fa za ma kon flik ta (Fri day, Hart man, Lord i Exum, 2007). Za po tre be ovog is tra ži va nja pre fe ri ra li smo da pi ta mo sve is pi ta ni ke u Sr bi ji ka kvu šte tu ve ru ju da su pre ži ve li za vre me i po sle ra ta i na taj na čin oti šli smo da lje od spe ci fič nog an ke ti ra nja žr ta va pro ši ru ju ći ga u is pi ti va nje ši re po pu la ci je. Re­zul­ta­ti Šta­gra­đa­ni­Sr­bi­je­mi­sle­o­po­mi­re­nju? Po mi re nje je bi lo ve o ma kon tro ver zan ter min i kon cept u biv šoj Ju go sla vi ji od za vr šet ka na sil nih kon fli ka ta. Za mno ge ono je pred sta vlja lo pret nju pre u- zi ma nju od go vor no sti za po či nje na kri vič na de la i iz tog raz lo ga ide ja po mi re- nja se su sre la sa sna žnim ot po rom, ka ko od po je di na ca, ta ko i od or ga ni za ci ja (do ma ćih i me đu na rod nih). U naj bo ljem slu ča ju ne ki su po dr ža li mi ni ma li stič ki pri stup po mi re nju. Jed no od za pa ža nja iz pret hod nog is tra ži va nja na te re nu je bi lo da je u dis kur su su o ča va nja sa pro šlo šću „po ve re nje“ mno go bo lje pri hva- će no od „po mi re nja“. Dok je po mi re nje iz gle da pod ra zu me va lo ne ki ob lik ne ka- žnja va nja ili pri hva ta nja da su dve stra ne ušle u kon flikt na isti na čin i sa istim ste pe nom od go vor no sti, po nov na iz grad nja po ve re nja pod ra zu me va la je da bi tre ba lo po pra vi ti pre ki nu te so ci jal ne od no se. Po mi re nje se mo že od i gra va ti na vi še ni voa – od in di vi du al nog, in ter per so nal nog, pre ko ni voa za jed ni ce, pa sve do na ci o nal nog ni voa, a u slu ča ju biv še Ju go sla vi je čak i na re gi o nal nom ni vou. U na šem is tra ži va nju po mi re nje je ana li zi ra no iz per spek ti ve od o zdo – na go re (bot tom-up), ali i iz per spek ti ve od o zgo – na do le (top-down). Shod no to me, is pi- ti va ni su i in di vi du al ni po gle di na vi še in ter per so nal ne pro ce se po mi re nja, kao i fak to ri na ma kro ni vou ko ji su olak ša va li ili ko či li pro ces po mi re nja u biv šoj Ju go- Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 30 sla vi ji. Is tra ži va nje ve za no za po mi re nje u Sr bi ji ni je jed no sta van za da tak. U stva ri, u ve ći ni slu ča je va oni ko ji su se me đu sob no bo ri li u to ku ra ta ne ži ve vi še u is toj ze mlji (u ovom slu ča ju Sr bi ji) da nas. Ume sto to ga, mno gi od onih iz Sr bi je ko ji su ak tiv no uče stvo va li u ra tu bo ri li su se pro tiv onih ko ji su ži ve li, a i da lje ži ve iz van gra ni ca Sr bi je. Slič no, mno gi od onih ko ji su po sta li žr tve iz van gra ni ca Sr bi je, da nas ži ve u Sr bi ji. Iz ovih raz lo ga (sta vlja ju ći na tre nu tak na stra nu mno ge po sto- je će dru štve ne ten zi je iz me đu raz li či tih dru štve nih gru pa) mo že se re ći da u Sr bi ji ne po sto je ja sne ka te go ri je žr ta va i po či ni la ca u kla sič nom smi slu (npr. ka da jed na oso ba uči ni ne što pro tiv ne ke dru ge). Kao re zul tat te či nje ni ce, mi smo for mu li sa li na ša pi ta nja o po mi re nju u ter mi ni ma od no sa iz me đu raz li či tih et nič kih gru pa ko je su bi le uklju če ne u kon flik te u biv šoj Ju go sla vi ji (Ta be la 1). U ve zi mo guć no- sti po mi re nja iz me đu raz li či tih et nič kih gru pa, od no si iz me đu Sr ba i Slo ve na ca se is ti ču po naj ve ćem bro ju (76.9%) po zi tiv nih od go vo ra u smi slu da je mo gu će po mi re nje iz me đu njih. Od no si iz me đu Sr ba i Al ba na ca sa Ko so va i Me to hi je se ta ko đe is ti ču, ali kao oni za ko je po sto ji ma nja na da za po mi re nje, po seb no u slu ča ju ko sov skih Sr ba i ko sov skih Al ba na ca. Ve ći na is pi ta ni ka sma tra da u ovim od no si ma po mi re nje ni je mo gu će: 39.6% za od nos Sr ba i ko sov skih Al ba na ca i 40.7% za od nos ko sov skih Sr ba i ko sov skih Al ba na ca. U od no si ma iz me đu Sr ba i Hr va ta, Sr ba i Bo šnja ka i Hr va ta i Bo šnja ka, pre ko po lo vi na is pi ta ni ka ve ru je da je po mi re nje mo gu će (54%, 54.8% i 54.2%), ne što ma nje njih ni je si gur no (23.6%, 25.8% i 32.5%), a još ma nje ve ru je da ni je mo gu će (22.4%, 19.4% i 13.2%). Ta be la 1. Da li mi sli te da je mo gu će da se pri pad ni ci sle de ćih et nič kih gru pa po mi re? Et nič ke gru pe Da Ne Ne znam Sr bi i Slo ven ci 76.9% 7.9% 15.3% Sr bi i Hr va ti 54% 22.4% 23.6% Sr bi i Bo šnja ci 54.8% 19.4% 25.8% Hr va ti i Bo šnja ci 54.2% 13.2% 32.5% Sr bi iz Sr bi je i Al ban ci sa KiM 32.8% 39.6% 27.6% Sr bi sa KiM i Al ban ci sa KiM 31.9% 40.7% 27.3% Ne do sta ju ći po da ci: a) 4.8%, b) 5.7%; c) 5.7%, d) 6.6%, e) 6.8%, f) 6.7%. Ka da se pi ta nje o po mi re nju for mu li še u ter mi ni ma ko ji se vi še od no se na lič no is ku stvo, od no sno ka da se is pi ta ni ci pi ta ju da li bi mo gli da se po mi re sa oso ba ma ko je su od go vor ne za nji ho vu vik ti mi za ci ju, pro ce nat onih ko ji od go- va ra ju sa „ne“ se po ve ća va. Ovo pi ta nje je for mu li sa no u op štim ter mi ni ma, od no sno bez spe ci fi ko va nja et nič ke gru pe žr tve i/ili po či ni o ca (Ta be la 2). U sva- Temida 31 kom slu ča ju, mo gu će je vi de ti da je pro ce nat is pi ta ni ka ko ji su od go vo ri li „ne“ na ovo pi ta nje (40.3%) ve ći ne go u svim slu ča je vi ma gde su is pi ta ni ci od go va ra li o mo guć no sti po mi re nja iz me đu raz li či tih et nič kih gru pa, osim u slu ča ju od no sa ko sov skih Sr ba i ko sov skih Al ba na ca (gde je ta ko đe 40.7% is pi ta ni ka pro ce ni lo da je za njih ne mo gu će da se po mi re). Na rav no ove pro cen te bi tre ba lo in ter pre- ti ra ti sa opre zom, jer je sa mo tre ći na is pi ta ni ka od go vo ri la na ovo pi ta nje. Ta be la 2. Da li mi sli te da je mo gu će da se po mi ri te sa oso ba ma ko je su Vam na u di le? Od go vor Fre kven ci ja Pro ce nat Da 86 23.6% Ne 147 40.3% Ne znam 132 36.2% Ne do sta ju ći po da ci: 7.4% Ako po gle da mo et nič ku dis tri bu ci ju ovih od go vo ra (Ta be la 3), mo že mo vi de ti da su svi al ban ski is pi ta ni ci re kli da ne bi mo gli da se po mi re, kao i ve ći na bo šnjač kih is pi ta ni ka (59.5%) iako je ve li ki broj njih od go vo rio sa „ne znam”. Me đu Hr va ti ma, ve ći na je re kla da ne zna (60%), dok su srp ski is pi ta- ni ci po no vo naj vi še po de lje ni (re la tiv na ve ći na od 37.5% je re kla „ne“, 34.9% je re klo da ne zna i 27.6% je od go vo ri lo „da”). U po re đe nju sa dru gim gru pa ma (pro por ci o nal no) Sr bi su ti ko ji su naj vi še sprem ni da se po mi re. Me đu tim, zbog ogra ni če nog bro ja oso ba ko je su od go vo ri le na ovo pi ta nje, ove re zul- ta te je neo p hod no in ter pre ti ra ti sa opre zom. Ta be la 3. Da li mi sli te da je mo gu će da se po mi ri te sa oso ba ma ko je su Vam na u di le? Od go vor Al ban ci Bo šnja ci Hr va ti Ma đa ri Ro mi Sr bi Ne de kla ri sa ni Osta li Da 0% 9.5% 10% 20% 33.3% 27.6% 0% 16.7% Ne 100% 59.5% 30% 20% 33.3% 37.5% 45.5% 33.3% Ne znam 0% 31% 60% 60% 33.3% 34.9% 54.5% 50% Ne do sta ju ći po da ci: 7.4% Ta ko đe, re for mu li sa li smo pi ta nje o po mi re nju u ter mi ni ma po ve re nja iz me đu raz li či tih gru pa i is pi ta ni ci su upi ta ni da oce ne ko li ko su od re đe ni fak- to ri po mo gli ili od mo gli pro ces po nov ne iz grad nje po ve re nja iz me đu ovih gru pa u biv šoj Ju go sla vi ji. Iz re zul ta ta pro is ti če za klju čak da su glav ne pre- pre ke („uop šte ni su po mo gli” i „ni su po mo gli”) u pro ce su po nov ne iz grad nje po mi re nja po is pi ta ni ci ma sle de će: Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 32 Tra u ma ko ju po je din ci još uvek tr pe zbog ra ta (52%)• Sta vo vi i stra te gi je po li ti ča ra (50.6%)• Kri vič no go nje nje pred • Me đu na rod nim su dom za rat ne zlo či ne po či nje ne na pod ruč ju biv še Ju go sla vi je (49.5%) Ško le (46.1%)• Kri vič no go nje nje pred do ma ćim su do vi ma (44.4%).• Sa dru ge stra ne fak to ri za ko je is pi ta ni ci sma tra ju da su po mo gli („po mo- gli su pu no” i „po mo gli su“) ovom pro ce su su: Po zi tiv na se ća nja lju di o vre me nu pre ra ta (66.3%)• Vre me ko je je pro šlo od za vr šet ka ra ta (60%)• Pri zna nje tu đe pat nje (53.9%)• Ulo ga ne vla di nih or ga ni za ci ja (53.1%).• Ra zna za ni mlji va za pa ža nja se mo gu iz vu ći iz ovih pro ce na ta. Naj pre, fak tor oko ko ga su is pi ta ni ci po ka za li naj ve ću po de lje nost u mi šlje nju bi la je ulo ga me di ja: 42.9% is pi ta ni ka je re klo da su me di ji bi li pre pre ka u pro ce su po nov ne iz grad nje po ve re nja, dok je 41.2% re klo da mi sle da su me di ji po mo- gli taj pro ces. Slič no, pri su stvo i ulo ga me đu na rod ne za jed ni ce ta ko đe su pod- sta kle raz li či te re ak ci je: 40.8% is pi ta ni ka sma tra da je me đu na rod na za jed ni ca pre pre ka, a 39.3% da je po mo gla pro ce su. Bit no je pri me ti ti i da je tra u ma pre- po zna ta kao naj ve ća pre pre ka u ovom pro ce su, što na gla ša va va žnost emo- ci o nal ne tra u me kao i či nje ni cu da je ona če sto za po sta vlje na u jav nom dis- kur su i u od lu ka ma vla de i do na to ra. Još jed no va žno za pa ža nje je to da su kri vič na go nje nja vi đe na kao pre pre ka pro ce su po nov ne iz grad nje po ve re nja, po go to vo ona ko ja se de ša va ju pred Me đu na rod nim su dom za rat ne zlo či ne po či nje ne na pod ruč ju biv še Ju go sla vi je, ali i ona pred do ma ćim su do vi ma. Ko nač no, ovi re zul ta ti nam uka zu ju da dva fak to ra za ko je is pi ta ni ci sma tra ju da naj vi še po ma žu pro ces po nov nog us po sta vlja nja po ve re nja ni su po ve za na ni sa ka kvim po li tič kim od lu ka ma ili me ha ni zmi ma, već da ima ju vi še spon- ta nu i psi ho lo šku pri ro du. Ovo na me će pi ta nje da li se ustva ri po nov na iz grad- nja po ve re nja mo že in du ko va ti spo lja ili da li ta či nje ni ca zna či da su do sad usvo je ne po li tič ke od lu ke i me ha ni zmi vi đe ni kao ne u spe šni u tom smi slu7. 7 Za de talj ni je upo zna va nje sa pro ce som po mi re nja vi de ti: Blo om fi eld, Bar nes i Huyse, 2003; Daly i Sar kin, 2007. Temida 33 Po me nu ti re zul ta ti nam ja sno go vo re, da iako su za ni mlji vi, po ne kad ih je te ško in ter pre ti ra ti bez ne kih kon tek stu al nih in for ma ci ja. Ka ko bi se išlo da lje u raz u me va nju po mi re nja u ovom is tra ži va nju, sma tra li smo da je neo p hod no da se is pi ta ni ci pi ta ju šta za njih pred sta vlja po mi re nje. Od lu či li smo se za me tod otvo re nog pi ta nja ka ko ne bi smo ogra ni či li ili in du ko va li od go vo re, a to je pri stup ko ji je po ve ćao vred nost po da ta ka do bi je nih po sta vlja njem ovog pi ta nja. Ipak, ka ko bi smo kvan ti ta tiv no ob ra di li ove po dat ke u sta ti stič kim ter- mi ni ma i u od no su na dru ga pi ta nja u upit ni ku, mo ra li smo da kom bi nu je mo kva li ta tiv ne i kvan ti ta tiv ne me to de ana li ze. Ovo je zah te va lo po ve ći ste pen in ter pre ta ci je od stra ne is tra ži vač kog ti ma. Sva kom od go vo ru je pri do da ta ši fra – je din stve na (jed na od ba zič nih ši fa ra) ili kom bi no va na (od dve ili vi še je din stve nih). Li sta je din stve nih ši fa ra je na pra vlje na na osno vu pre li mi nar nog pre gle da od go vo ra, pri če mu su u ob zir uze ti i spe ci fič ni ci lje vi is tra ži va nja kao i zna nje pri ku plje no od stra ne is tra ži vač kog ti ma u pret hod nom te ren skom is tra ži va nju. Na osno vu to ga, raz li či te re či i iz ra zi su do bi li od re đe no zna če nje i gru pi sa ni su u raz li či te ka te go ri je ili ši fre. Su bjek tiv nost ko ja je ne mi nov no ugra đe na u ovaj pro ces je ba lan si ra na kroz uklju či va nje asi sten ta is tra ži va ča ko ji je re ko di rao sve od go vo re. Ovi po da ci su on da une ti i ana li zi ra ni kvan- ti ta tiv no u SPSS-u. Ko nač ni re zul tat ovog po du hva ta su po da ci o to me ka ko is pi ta ni ci opi su ju po mi re nje: mir na ko eg zi sten ci ja (21.9%), opra šta nje (12%), po što va nje / to le ran ci ja (11.9%), pri hva ta nje od go vor no sti (8.8%) i isti na (6.2%). Sle de: kri vič no go nje nje (3.4%), za bo ra vlja nje (3.3%), po ve re nje (3.1%) i se ća nje (2.9%). Ovi pro cen ti se od no se i na one slu ča je ve ka da su ovi kon cep ti po me- nu ti po je di nač no ili u kom bi na ci ji sa dru gim kon cep ti ma. Va­žnost­re­sto­ra­tiv­ne­prav­de­za­„me­đu­na­rod­na”­kri­vič­na­de­la­iz­pro­šlo­sti Cilj pro jek ta ko ji je omo gu ćio okvir za ovo is tra ži va nje bio je i da se is tra že mo guć no sti za pri me nu prin ci pa re sto ra tiv ne prav de u pro ces su o ča va nja sa pro šlo šću u Sr bi ji. Is pi ti va nje ši re po pu la ci je je tre ba lo da do pri ne se i bo ljem raz u me va nju to ga ka ko is pi ta ni ci vi de glav na pi ta nja post-kon flikt ne prav de, sa po seb nim na gla skom na po ten ci jal re sto ra tiv nog pri stu pa u ta kvim pro ce- si ma. Dru gim re či ma, ka da je bi lo po treb no su o či ti se sa tra ga njem za isti nom, pri hva ta njem od go vor no sti, re pa ra ci ja ma i po mi re njem, ovo is tra ži va nje je is pi ta lo va žnost ko ju is pi ta ni ci pri da ju ele men ti ma re sto ra tiv nog pri stu pa, kroz pi ta nja ve za na za ne ke osnov ne ele men te te o ri ja i prak si re sto ra tiv ne prav de. Je dan od ovih ele me na ta je i su sret. Pre ma de fi ni ci ja ma re sto ra tiv ne prav de Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 34 usme re nim na pro ces, su prot sta vlje ne stra ne u kon flik tu bi tre ba lo da ko lek- tiv no re še taj isti kon flikt (Mar shall, 1996). Ova for mu la ci ja mo že se de kon stru i- sa ti u sle de će prin ci pe: in klu zi ju, ak tiv nu par ti ci pa ci ju i su sret (Va li ñas i Van spa- u wen, 2009). Su sre tu je u ma nje ili vi še po sre do va noj for mi, da va na cen tral na va žnost u pro ce si ma re sto ra tiv ne prav de. Is ku stva su sre ta iz me đu onih ko ji su od go vor ni za na si lje i onih ko ji su bi li žr tve bi lo je u vi še post-kon flikt nih pod- ruč ja kao što su Ju žno a frič ka Re pu bli ka, Is toč ni Ti mor i Se ver na Ir ska. U ovom is tra ži va nju is pi ta ni ci su upi ta ni da li bi vo le li da se sret nu sa oni ma ko ji su ih po vre di li (tzv. di rekt nim po či ni o ci ma). Re la tiv na ve ći na (42.4%) is pi ta ni ka je da la od go vor „ne”, 35.1% je re klo „da”, a 22.6% je od go vo ri la da ne zna (Ta be la 4). Ono što po no vo pri me ću je mo ov de je, kao i kod mno gih dru gih kon tr o ve r zni jih ili ose tlji vi jih pi ta nja u upit ni ku, da, iako po sto ji ap so- lut na ve ći na ko ja ni je sprem na za ta kav su sret, ona je da le ko od pre o vla da va- ju će ve ći ne. Bi lo bi va žno ov de na po me nu ti da od svih is pi ta ni ka, njih 79.9% ni je lič no po zna va lo lju de ko ji su ih po vre di li, a da je sa mo 20.1% njih (sva ka pe ta oso ba) po zna va lo po či ni o ce. Ka da po no vo po gle da mo et nič ku di stri bu- ci ju od go vo ra vi di mo da su Sr bi oni kod ko jih je naj vi še po de la u mi šlje nji ma: 40% njih ka že da ne bi vo le lo da sret ne po či ni o ca, 31% da bi vo le lo, a 29% da ne zna ju šta da od go vo re na to pi ta nje. Hr va ti su ta ko đe do sta po de lje ni oko ovog pi ta nja, dok su Bo šnja ci si gur ni ji da ne že le ta kve su sre te (45.5% Hr va ta je re klo „ne” na su prot 51.8% Bo šnja ka). Me đu oni ma ko ji su re kli da bi vo le li da sret nu po či ni o ce, ve ći na je mu ška ra ca (55.3%), ali, na rav no, broj is pi ta ni ka ko ji su od go vo ri li na ovo pi ta nje ni je ve li ki. Ta be la 4. Da li bi ste vo le li da se sret ne te sa oso ba ma ko je su Vam na u di le? Od go vor Fre kven ci ja Pro ce nat Da 129 35.1% Ne 156 42.4% Ne znam 83 22.6% Ne do sta ju ći po da ci: 6.6% Od is pi ta ni ka ko ji su od go vo ri li da bi vo le li da sret nu one ko ji su ih po vre- di li na ne ki na čin, za tra že no je da ob ja sne raz lo ge za tu že lju. Na ve šće mo od go vo re is pi ta ni ka od onih naj va žni jih pa do onih ma nje va žnih: da bi ih pi tao/-la za što su ura di li to što su ura di li• da bi imao/-la pri li ku da im ka žem ka ko sam pa tio/-la• da bih vi deo/-la da li se ka ju zbog to ga što su ura di li• Temida 35 da bih vi deo/-la da li će se iz vi ni ti• da bih tra žio/-la od njih da po pra ve šte tu ko ju su mi na pra vi li• da bih ih pi tao/-la o mo jim ne sta lim ro đa ci ma i pri ja te lji ma.• Dva glav na mo ti va is pi ta ni ka (za su sret sa oni ma ko ji su im na ne li bol) su pri- lič no če sti i u dru gim slu ča je vi ma su sre ta žr ta va i po či ni la ca. Po ku šaj da se na đe smi sao u pat nji ko ja je ne ko me iza zva na i pri li ka da se ne što o njoj ka že ka ko bi po či ni lac bio sve stan po sle di ca svo jih de la, če sta su od li ka ova kvih su sre ta, a pred sta vlja ju i deo pro ce sa is ce lje nja. Dru ga dva raz lo ga – da se vi di da li se po či ni o ci ka ju ili iz vi nja va ju, ta ko đe su pred vi dlji vi mo ti vi za ta kve su sre te. Ipak, ta kvi mo ti vi mo gu pro u zro ko va ti ve li ke po te ško će, jer na go ve šta va ju da mo žda po sto je ne re a li stič ka oče ki va nja na stra ni žr ta va ko ja mo gu do ve sti do fru stra ci je i raz bi ja nja ilu zi ja to kom i po sle su sre ta8. Iz ne na đu ju će je vi de ti da is pi ta ni ci ni su pri da li ve ći zna čaj pi ta nju re pa ra ci je. Ovo iz gle da su ge ri še da is pi ta ni ci, ko ji su bi li vik ti mi zi ra ni, pre sve ga tra že psi ho lo šku i emo ci o nal nu „na dok na du šte te” u su sre tu sa po či ni o cem. Jed no od mo gu ćih ob ja šnje nja je da je po sle rat na sce na u Sr bi ji i u biv šoj Ju go sla vi ji u ve li koj me ri oka rak te ri sa na kao sce na sa ne pre kid- nim po ri ca njem i ne do stat kom pri zna va nja ono ga što se de si lo u pro šlo sti. Ipak, tre ba lo bi pri me ti ti da je shva ta nje zna če nja re či „re pa ra ci ja” kod ovog pi ta nja vi še aso ci ra no sa ma te ri jal nom na dok na dom šte te, upr kos ne dav nom raz vo ju i pro ši ri va nju kon cep ta ka ko bi se uklju či le i do dat ne ka te go ri je9. Is pi ta ni ci ko ji su od go vo ri li da ni su že le li da se sret nu sa lju di ma ko ji su im na u di li, ta ko đe su upi ta ni za raz lo ge ta kvog sta va. Raz lo zi ko je su na vo di li, po re đa ni po fre kven ci ji ja vlja nja od naj če šćeg do naj ma nje če stog su: ne že lim da vi dim tu oso bu po no vo i že lim da za bo ra vim ono što se de si lo• ako bih ga sreo/-la po no vo bih pa tio/-la• 8 Kom bi na ci ja po ka zi va nja ka ja nja i iz vi nje nja za de la iz pro šlo sti od stra ne po či ni o ca bi naj ve- ro vat ni je pred sta vlja la naj bo lju for mu pri zna nja žr tva ma i no si la bi naj ve ći re pa ra tiv ni po ten- ci jal, ali ta kav ide al ni is hod ne mo že se ga ran to va ti žr tva ma. Ne ki eks per ti u obla sti re sto ra tiv- ne prav de upo zo ri li su da ka ja nje i iz vi nje nja ne bi tre ba lo da bu du oče ki va ni is ho di su sre ta, ali da bi ih tre ba lo sa ra do šću pri hva ti ti kao spo re dan re zul tat, kao i da bi bi lo sa svim do volj no i ako bi po či ni lac pri stao da pru ži od šte tu žr tvi bez po ka zi va nja ka ja nja ili iz vi nja va nja. Ta kvu ide ju je za stu pao i ko mi tet za am ne sti ju Ju žno a frič ke Ko mi si je za isti nu i po mi re nje pred ko jim je pred u slov do bi ja nja am ne sti je bio iz no še nje či nje ni ca u pot pu no sti, a ka ja nje, ža lje nje i iz vi- nje nja ni su bi li neo p hod na (Wal gra ve, 1994; Par men ti er, 2001; Par men ti er i We i te kamp, 2005). 9 Iz ve štaj Van Bo u ven/Bas si o u ni do veo je do osnov nih prin ci pa i pre po ru ka ve za nih za re pa- ra ci ju u ko ji ma je re pa ra ci ja vi đe na kao ši ri kon cept ko ji uklju ču je re sti tu ci ju, kom pen za ci- ju, re ha bi li ta ci ju, sa tis fak ci ju i ga ran ci ju da se de lo ne će po no vi ti (Uni ted Na ti ons Ge ne ral As sembly, 2006; Shel ton, 2005; Rom bo uts i Par men ti er, 2009). Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 36 ne znam za što• mr zim tu oso bu• pla šim se te oso be.• Iz gle da da je za is pi ta ni ke iz be ga va nje kon tak ta ili su sre ta sa po či ni o- cem po ve za no sa iz be ga va njem po nov ne pat nje (uglav nom zbog pri se ća- nja pro šlo sti) ili u naj ma nju ru ku zbog ose ća nja ne pri jat no sti. Ova ose ća nja su po ve za na sa psi ho lo škim pro ce si ma (ili me ha ni zmi ma od bra ne) kroz ko je žr tve pro la ze ka da se su o ča va ju sa eks trem nim bo lom ili pat njom i za to se na njih po ne kad ne mo že la ko uti ca ti ni ti iza zva ti pro me na u nji ma spo lja. Ovo je gru pa lju di ko ja se ne ose ća sprem nom da do ži vi ta kav su sret. Za ni mlji vo je, me đu tim, da dva naj ja ča ose ća nja ov de pred sta vlje na kao mo gu ći raz lo zi da se od bi je ta kav su sret – strah i mr žnja, uop šte ni su če sto na vo đe ni od go vo ri. Opra šta nje je če sta i kon tro verz na te ma u de ba ti o po mi re nju, ali i u li te- ra tu ri ve za noj za re sto ra tiv nu prav du. Mno gi su tvr di li da je za po mi re nje neo p hod no opro sti ti i isto vre me no od ba ci ti že lju za osve tom. Iako po mi re- nje kao kon cept per se ni je ta ko če sto po mi njan u te o ri ja ma o re sto ra tiv noj prav di, pro ces di ja lo ga i raz me ne u ko ji stra ne ula ze je po sma tran kao po ten- ci jal no do bar za raz vi ja nje em pa ti je me đu stra na ma i ko nač no za opra šta nje od stra ne žr ta va. Opra šta nje je, me đu tim, po sta lo ve o ma kon tra verz no pi ta- nje u dru štvi ma u tran zi ci ji, ko ja se su o ča va ju sa te škim po vre da ma ljud skih pra va. Če sto je bi lo po ve zi va no sa za ma ski ra nim te žnja ma za ne ka žnja va njem. Ali čak i ka da pro ces pri hva ta nja od go vor no sti pra ti opra šta nje, kao što je to bio slu čaj u Ju žnoj Afri ci, mno gi su ga kri ti ko va li kao sta vlja nje no vog te re ta na one ko ji su već bi li ozbilj no vik ti mi zi ra ni. I po red kon tr o ve r ze, opra šta nje na sta vlja da bu de glav na te ma u ze mlja ma ko je se bo re da se su o če sa stra- šnim zlo či ni ma i da na sta ve da lje. Is pi ta ni ci ko ji su re kli da bi bi li sprem ni da se su sret nu sa po či ni o ci ma upi ta ni su i da li bi mo gli da opro ste po či ni o ci ma ako bi u to ku tog su sre ta po či ni lac is ka zao iskre no ka ja nje i pri znao od go vor nost za nji ho vu pat nju. Pod jed nak broj is pi ta ni ka je re kao da bi mo gao da opro sti, kao i da ne zna (39.4%), dok je 21.3% re klo da ne bi mo glo da opro sti. Temida 37 Ta be la 5. Ka da bi ste sre li oso bu ko ja Vam je na u di la i ka da bi ona pri zna la šta Vam je ura di la i po ka za la da se iskre no ka je zbog to ga, da li bi ste ta da mo gli da joj opro sti te? Od go vor Fre kven ci ja Pro ce nat Da 73 39.4% Ne 78 21.3% Ne znam 116 39.4% Ne do sta ju ći po da ci: 1.6% Do sta vi sok pro ce nat od ma log bro ja is pi ta ni ka ko ji je uop šte od go vo rio na ovo pi ta nje, ni je znao šta da od go vo ri, zbog ose tlji ve pri ro de sa mog pi ta- nja ko je ote ža va da se raz mi šlja u hi po te tič kim ter mi ni ma. Sa dru ge stra ne, mo ra mo se za pi ta ti da li ovo pi ta nje pod ra zu me va ono što bi se mo glo na zva ti uslov nim opro šta jem (od no sno opro šta jem sa mo uz pret hod no is pu nje nje od re đe nih uslo va, u ovom slu ča ju pri zna va njem od go vor no sti i pat nje žr ta va i is ka zi va njem ka ja nja). Uzi ma ju ći u ob zir či nje ni cu da zna mo da su ovi uslo vi te ško ostva ri vi i da su is pi ta ni ci u pret hod nim pi ta nji ma da li ve li ki zna čaj iz vi- nje nji ma, ka ja nju i pri zna va nju kri vi ce, mo že se za klju či ti da i da lje po sto ji ve li ki pro ce nat onih ko ji ne zna ju da li bi mo gli i onih ko ji zna ju da ni su sprem ni da opro ste. Ka da se po gle da ju od go vo ri na ovo pi ta nje u od no su na et nič ko po re- klo is pi ta ni ka, Sr bi su u ve ćem pro cen tu bi li sprem ni da opro ste (41.7%), dok su Al ban ci naj ma nje sprem ni da opro ste (50% je re klo da ne bi mo glo, a 50% da ne zna da li bi mo glo). Hr va ti su ve o ma po de lje ni u svo jim mi šlje nji ma, jer po lo vi na njih ni je zna la šta da od go vo ri, a dru ga po lo vi na je bi la rav no prav no po de lje na iz me đu od go vo ra „da” i „ne”. Bo šnja ci su ta ko đe bi li po de lje ni, iako je re la tiv na ve ći na njih re kla da ne bi mo gla da opro sti (41.7%). Za­klju­čak Cen tral no pi ta nje ovog ra da bi lo je: ka ko raz u me ti po nov no us po sta vlja- nje prav de za „me đu na rod na” kri vič na de la u Sr bi ji. Ka ko bi da li od go vor na ovo pi ta nje, pred sta vi li smo ne ke re zul ta te is tra ži va nja na ši roj po pu la ci ji spro- ve de nog od stra ne na šeg is tra ži vač kog ti ma u Sr bi ji 2007. go di ne, sa po seb- nim fo ku som na ne ke aspek te ve za ne za po mi re nje iz me đu po je di na ca i iz me đu sek to ra dru štva. Kroz ovo is tra ži va nje po ku ša li smo da do pri ne se mo bo ljem raz u me va nju mi šlje nja i sta vo va po je di na ca ko ji ži ve u Sr bi ji o to me ka ko bi sa pro šlo šću mo glo Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 38 i tre ba lo da se su o či i po seb no da li i ka ko re sto ra tiv ni pri stup mo že bi ti deo ta kvog pro ce sa. Po sta lo je ja sno da su pi ta nja opra šta nja, po ve re nja i po mi re nja me đu naj kon tra verz ni jim te ma ma ko je je upit nik po krio. U tom smi slu ve o ma je va žno da se pro u či ras po de la od go vo ra na pi ta nja, ali i da se uzme u ob zir gru pa is pi ta ni ka či ja su mi šlje nja bi la po me ša na ili ne si gur na, od no sno oni ko ji su se od lu či li za od go vor „ne znam”. Još jed no bit no za pa ža nje je da se mi šlje nja o ovim te ma ma, po seb no o po mi re nju, me nja ju ka da se sta ve na ap strakt ni ji ili lič- ni ji ni vo. Šta vi še, iako po mi re nje tre nut no ima ne ga tiv nu ko no ta ci ju u Sr bi ji, zbog tri vi ja li za ci je tog poj ma u jav nom dis kur su, ono je ve ro vat no vi đe no kao re al ni je od po nov nog us po sta vlja nja po ve re nja. A u pro ce su po nov ne iz grad nje po ve re- nja po sto ji kon sen zus o ne ga tiv noj ulo zi po li ti ča ra i tra u me. Sprem nost i uslo vi za opra šta nje su da lje ana li zi ra ni u kon tek stu su sre ta iz me đu su ko blje nih stra na ko je se i da lje na la ze na li ni ji po de le stvo re ne ra tom. Su sret je bio cen tral ni ele ment pro gra ma re sto ra tiv ne prav de i ta ko đe je bio in te gri san u od re đe ne me ha ni zme ko ji su bli ski re sto ra tiv noj fi lo zo fi ji u kon tek stu tran zi ci je po sle ve li kih su ko ba. Mo ra po sta ti ja sno da ta kvi su sre ti pod ra zu me va ju od re đen ste pen pri pre me i uče šća svih stra na, što se ne mo že uvek obez be di ti, kao što su za mi šlja li is pi ta ni ci u ovom is tra ži va nju. Mo žda je za to vi še is pi ta ni ka od go vo ri lo da ni je sprem no da se su sret ne sa oni ma ko ji su ih vik ti mi zi ra li, ali tre ba lo bi uze ti u ob zir i či nje ni cu da ve ći na is pi ta ni ka ni je lič no po zna va la te oso be. Za pa ža nja ove vr ste po ja vi la su se i u dru gim pro ce si ma su o ča va nja sa pro šlo šću gde je opra šta nje po sta lo deo na ci o nal ne stra te gi je i re to ri ke su o ča va nja sa pro šlo šću, po ne kad iza zi va ju ći oštre re ak ci je od stra ne onih ko ji su sma tra li da opra šta nje mo že bi ti sa mo in di vi du a lan i pri- va tan pro ces, za vi stan od mno go broj nih okol no sti i uslo va, a u sva kom slu ča ju ve o ma te žak i dug pro ces. Ovo is tra ži va nje su ge ri še da su i po sle vi še od 16 go di na po sle po čet ka ras pa da Ju go sla vi je mno ga ključ na pi ta nja u su o ča va nju sa pro šlo šću i da lje ve o ma pri sut na u de ba ti o to me ka ko kre nu ti na pred. Ova ras pra va bi mo gla da po sta ne bo lja, ako bi se u pi ta nje do ve le od re đe ne pret po stav ke o to me ka ko pri zna va nje i pre u zi ma nje od go vor no sti mo že da se za ga ran tu je i ka ko da se po stig ne po mi re nje. Ko ji pri stup pri me ni ti u pro ce su su o ča va nja sa pro- šlo šću - da li pri mar no re tri bu tiv ni ili re sto ra tiv ni, pi ta nje je ko je je neo p hod no po sta vi ti u tre nut nom kon tek stu u Sr bi ji. Iz tog raz lo ga bi lo je ja ko va žno pi ta ti re pre zen ta tiv ni deo po pu la ci je o nji ho vim mi šlje nji ma i sta vo vi ma. Is tra ži va- nje u Sr bi ji po ka za lo je da mno gi za ni mlji vi re zul ta ti mo gu pro iz i ći iz ta kvog po du hva ta, kao i hi po te ze za bu du ća is pi ti va nja. Na da mo se da smo ta ko Temida 39 do pri ne li glav nim ci lje vi ma ovog ra da – da se de mon stri ra vred nost em pi rij- skih is tra ži va nja post-kon flikt ne prav de na lo kal nom sta nov ni štvu i da se ovi na la zi po sta ve kao pa ra dig ma za po gled na „me đu na rod na” kri vič na de la iz pro šlo sti u ši rem te o rij skom okvi ru re sto ra tiv ne prav de. Li­te­ra­tu­ra Blo om fi eld, D., Bar nes, T., Huyse, L. (eds.) (2003) Re con ci li a tion Af ter Vi o lent Con flict – A Hand bo ok. Stoc kholm: In ter na ti o nal Idea. Bryman, A. (2008) So cial Re se arch Met hods. Ox ford: Ox fo rd Uni ver sity Press. Daly, E., Sar kin, J. (eds.) (2007) Re con ci li a tion in Di vi ded So ci e ti es – Fin ding Com mon Gro und. Phi la delp hia: Uni ver sity of Pennsylva nia Press. Fri e drichs, D. (ed.) (1998) Sta te Cri me: Vo lu mes 1 & 2. Al der shot: As hga te/Dart mo uth. In ter na ti o nal Cen ter for Tran si ti o nal Ju sti ce (2004) Ira qi Vo i ces: At ti tu des to wards Tran- si ti o nal Ju sti ce and So cial Re con struc tion. New York: Hu man Rights Cen tre, Uni ver sity of Ber ke ley Ca li for nia/ In ter na ti o nal Cen ter for Tran si ti o nal Ju sti ce. In ter na ti o nal Cen ter for Tran si ti o nal Ju sti ce (2006) Co lom bian Per cep ti ons and Opi ni- ons on Ju sti ce, Truth, Re pa ra ti ons, and Re con ci li a tion. New York: In ter na ti o nal Cen ter for Tran si ti o nal Ju sti ce In ter na ti o nal Cen ter for Tran si ti o nal Ju sti ce (2007) When the War Ends: A Po pu la tion Ba sed Sur vey of At ti tu des abo ut Pe a ce, Ju sti ce, and So cial Re con struc tion in Nort hern Ugan da. New York: Hu man Rights Cen tre, Uni ver sity of Ber ke ley Ca li for nia/ In ter na ti- o nal Cen ter for Tran si ti o nal Ju sti ce. Ka u zla rich, D., Mul lins, C., Mat thews, R. (2003) A com pli city con ti nu um of sta te cri me. Con tem po rary Ju sti ce Re vi ew, 6(3), str. 241-254. Ki za, E., Rat hge ber, C., Roh ne, H. (2006) Vic tims of war: an em pi ri cal study on war, vic- ti mi sa tion and vic tims’ at ti tu des to wa rds ad dres sing atro ci ti es. Ham burg: Ham bur ger Edi tion. Mar shall, T. (1996) The Evo lu tion of Re sto ra ti ve Ju sti ce in Bri tain. Euro pean Jo ur nal on Cri mi nal Po licy and Re se arch, 4(4), str. 21-43. Par men ti er, S. (2001) The So uth Afri can Truth and Re con ci li a tion Com mis sion. To wards Re sto ra ti ve Ju sti ce in the Fi eld of Hu man Rights, in Fat tah, Ez zat & Par men- ti er, S. (eds.), Vic tim Po li ci es and Cri mi nal Ju sti ce on the Road to Re sto ra ti ve Ju sti ce. Es says in Ho no ur of Tony Pe ters, 401-428, Le u ven, Le u ven Uni ver sity Press. Step han Par men ti er, Mar ta Va li ñas, El mar We i te kamp 40 Par men ti er, S. (2003) Glo bal Ju sti ce in the Af ter math of Mass Vi o len ce. The ro le of the In ter na ti o nal Cri mi nal Co urt in De a ling with Po li ti cal Cri mes. In ter na ti o nal An nals of Cri mi no logy, 41(1-2), str. 203-224. Par men ti er, S. and We i te kamp, E. (2005) The Truth and Re con ci li a tion Com mis sion in So uth Afri ca, in Na ta ra jan, M. (ed.), In tro duc tion to In ter na ti o nal Cri mi nal Ju sti ce, 151- 158, New York, McGraw-Hill. Par men ti er, S., We i te kamp, E. (2007) Po li ti cal Cri mes and Se ri o us Vi o la ti ons of Hu man Rights: To wards a Cri mi no logy of In ter na ti o nal Cri mes. In S. Par men ti er & E. We i te- kamp (eds.) Cri me and Hu man Rights – Se ri es in So ci o logy of Cri me, Law and De vi an ce, vol. 9. Am ster dam/Ox ford: El se vi er/JAI Press, str. 109-144. Rom bo uts, H., Par men ti er, S. (2009) The In ter na ti o nal Cri mi nal Co urt and its Trust Fund are Co ming of Age: To wards a Pro cess Ap pro ach for the Re pa ra tion of Vic tims. In ter na ti o nal Re vi ew of Vic ti mo logy, 16(2), str. 149-182. Shel ton, D. (2005) The Uni ted Na ti ons Prin ci ples and Gu i de li nes on Re pa ra ti ons: Con- text and Con tents. In K. De Feyter, S. Par men ti er, M. Bos suyt & P. Lem mens (eds.) Out of the As hes – Re pa ra tion for Vic tims of Gross and Syste ma tic Hu man Rights Vi o la ti ons. Ant werp/Ox ford: In ter sen tia, str. 11-33. UNDP (2005) Early War ning System Spe cial Edi tion – Ju sti ce and Truth in Bo snia and Her- ze go vi na: Pu blic Per cep ti ons. Sa ra je vo: UNDP. Uni ted Na ti ons Ge ne ral As sembly (2006) Ba sic Prin ci ples and Gu i de li nes on the Right to a Re medy and Re pa ra tion for Vic tims of Gross Vi o la ti ons of In ter na ti o nal Hu man Rights Law and Se ri o us Vi o la ti ons of In ter na ti o nal Hu ma ni ta rian Law: re so lu tion / adop ted by the Ge ne ral As sembly, 21.3.2006 – A/RES/60/147. Pre u ze to 15.3.2010. sa: http://www.un hcr.org/ref world/do cid/4721cb942.html Va li ñas, M., Par men ti er, S., We i te kamp, E. (2008) Sur vey ‘Re sto ring Ju sti ce in Ser bia’ – Pre li mi nary Re port. Le u ven: Fa culty of Law & Le u ven In sti tu te of Cri mi no logy. Va li ñas, M., Van spa u wen, K. (2009) The pro mi se of Re sto ra ti ve Ju sti ce in the se arch for truth af ter a vi o lent con flict - Ex pe ri en ces from So uth Afri ca and Bo snia-Her ze go- vi na. Con tem po rary Ju sti ce Re vi ew, 12(3), str. 269-287. Wal gra ve, L. (1994) Beyond Re ha bi li ta tion: In Se arch of a Con struc ti ve Al ter na ti ve in the Ju di cial Re spon se to Ju ve ni le Cri me, 2(2) Euro pean Jo ur nal on Cri mi nal Po licy and Re se arch (Spe cial Is sue on the Ju ve ni le Ju sti ce System) str. 57-75, 62-67. We i te kamp, E., Par men ti er, S., Van spa u wen, K., Va li ñas, M., Ge rits, R. (2006) How to deal with mass vic ti mi za tion and gross hu man rights vi o la ti ons. A re sto ra ti ve ju sti ce ap pro ach. In U. Ewald & K. Tur ko vić (eds.) Lar ge Sca le Vic ti mi sa tion as a Po ten tial So ur ce of Ter ro rist Ac ti vi ti es – Im por tan ce of Re ga i ning Se cu rity in Post-Con flict So ci e ti es. Am ster dam: IOS Press, str. 217-241. Temida 41 Step han par Men ti er Mar ta Va li ñaS el Mar We i te kaMp Re­sto­ring­ju­sti­ce­in­Ser­bia­–­Re­con­ci­li­a­tion­­ and­re­sto­ra­ti­ve­ju­sti­ce­in­a­post-war­con­text The de ba te on how to deal with the past in Ser bia is an on go ing one. Both the In ter na ti o nal Cri mi nal Tri bu nal for ex-Yugo sla via and na ti o nal cri mi nal ju sti ce mec ha- nisms ha ve played an im por tant ro le in pro se cu ting of fen ders. Ot her tran si ti o nal ju sti ce ap pro ac hes con ti nue to be di scus sed. All in all, the Yugo slav and the Ser bian ca ses are si mi lar to ot her de ba tes abo ut ‘de a ling with the past’ or ‘tran si ti o nal ju sti ce’, as they are ta king pla ce bet we en eli tes, po li ti cal, eco no mic, and wit hin ci vil so ci ety, both in the co un try con cer ned and at the in ter na ti o nal le vel. Li ke wi se the vi ews and ex pec ta- ti ons of the lo cal po pu la ti ons in any gi ven co un try are very ra rely ta ken in to ac co unt. In this pa per fin dings of a po pu la tion-ba sed re se arch car ried out by our re se arch te am in Ser bia in 2007 are pre sen ted. The re se arch was do ne by me ans of a qu an ti ta ti ve sur- vey ac ross the co un try on se ve ral is su es of post-con flict ju sti ce, in clu ding truth se e king, ac co un ta bi lity, re pa ra tion for vic tims and re con ci li a tion. Keywords: ci ti zen at ti tu des, hu man rights, re sto ra ti ve ju sti ce, re con ci li a tion, Serbia. Sa en gle skog je zi ka pre veo: Ni ko la M. Pe tro vić 
work_hpi4unf2pjerhdrkuplpeidapy	----	Editorial: No Economic Justice without Gender Justice Upfront Editorial: No Economic Justice without Gender Justice WENDY HARCOURT It seems incredible in these days of economic crisis that over 2,200 women (and some men) found the time and money to fly to Istanbul for a discussion on gender and economic justice at the AWID Forum 2012. Registrations closed a week before the event opened and the majority of the 800 organizations and individuals who answered the call for sessions and papers could not be accommodated. Like many who attended, I spent months preparing for the event.With AWID, I orga- nized in autumn a special meeting to plan this journal issue. I contributed to designing and participating in three of the sessions. And in the weeks in the run up to the event, I was continually promising my network of colleagues and friends that we would meet up in Istanbul to plot, to listen to each other’s sessions, or find a corner somewhere to catch up. Like many others, I came to Istanbul to learn, to find and renew friendships, to be energized and to plan for the future. AWID Forums are special, highly charged, inclusive and exciting. The secret of their success is that, in the end, they are not events but the converging of many processes. The making and attending of an AWID Forum is part of a complex networking process that brings together different generations of feminists in a space to engage, to share and create. The Development journal has been fortunate to publish now three special editions covering the outcome of the AWID Forum1 working with the ever more international and dynamic AWID team. This journal issue is packed with insights. Cindy Clark and Lydia Alp|¤ zar DuraŁ n give a sizzling overview in their introduction of the main issues of the Forum from the epicentre of the Forum arrangements. The other articles in the Upfront section present highlights from the plenaries and in-depth sessions. Articles based on stirring speeches reflect new forms of activism and urgency in today’s crisis hung world. From the defiant revolutionary poem by Marwa Sharafeldin, to the talk of a fierce new world by Gita Sen and Marilyn Waring’s crisp critique of economic power; from Rhadika Balakrishnan plea for popular education, and the warnings of the misuse of culture by Yakin Ertuº rk, we sense a new dynamism and activism as women confront eco- nomic and social inequalities. Jayati Ghosh completes the section when she argues it is time for feminists to enter into the discussion of alternatives more forcefully in order to define how economic institutions and policies can ensure a gender-just economy and society. Development, 2012, 55(3), (257–259) r 2012 Society for International Development 1011-6370/12 www.sidint.net/development/ Development (2012) 55(3), 257–259. doi:10.1057/dev.2012.49; published online 13 July 2012 The Thematic section pushes further into how this engagement might happen with a series of articles setting out the structural reasons for the economic injustices that are impeding women’s lives. Feminist economists, most of whom spoke at the AWID Forum, go to the core of economic processes in order to give a gender reading of financialization of our lives; the impact of neo- liberal economic policies on women’s employ- ment; social protection policies; taxes; balancing family life; funding for women’s rights, environ- ment, well-being and livelihoods. The Dialogue section details a vision of change by setting out feminist alternative visions to the mainstream economic development model. The three articles present: howAWID is engaged with many women’s rights networks exploring alterna- tives; what is being constructed in Latin America by feminists and others around the Andean con- cept of Buen Vivir; and lastly post-development visions forAfrica (anticipating Development 55.4). The Local/Global Encounters section reports on how feminists are resisting inequitable economic processes on the ground. The articles underline women’s rights defenders’ economic and social struggles in the regional and national context. Whether on the streets in the US Occupy move- ment, or in Arab squares, or protesting at shock therapy in Greece or indigenous women defend- ing their territories ^ the authors speak of passion and courage, as well as pain. The concluding photo essay captures in images the breadth of emotions and sheer diversity of women (and men) attending the AWID Forum. None of these themes and issues will be entirely new to Development readers who will recognize that this journal issue is a continuation of many of the journal’s editorial concerns. Since 2008 (and earlier), Development has been assessing and questioning the crisis in economics, exploring concepts like food sovereignty, sustaining liveli- hoods, climate justice, cosmovisions, Buen Vivir, civic action and the green economy. Even given that many contributors to those issues spoke of gender equality and women’s rights, true to Development’s editorial line, specific issues need to be devoted to deepening an understanding of gender power relations in development. As very recent events show, women’s rights and gender equality continues to be under threat. I am writing this as the results of the Egyptian election are coming in, with a win to Mohamed Morsi of the Muslim Brotherhood along with cheers of Islamists in Tahrir Square. I wonder what the young Egyptian women whom I listened to at the AWID Forum are feeling. The aftermath of the Arab Spring has not been inclusive of the women who came out on the streets16 months ago. I am also writing at the conclusion of the United Nations Conference on Sustainable Development Rioþ20 with its messy and disappointing end. Kumi Naidoo of Greenpeace has declared it a cata- strophe. Certainly the women attending were appalled.2 The official declaration called ‘The Future We Want’ signed by 190 countries only ‘recalls’ (not recognizes) the Beijing Declaration in 1995. And any reference to support sexuality, reproductive rights and health was repressed, at the instigation of the Vatican and conservative states. Suchan outcome takes women’s rights back two decades. These losses for women’s rights and body poli- tics underline that it is vital that all of us under- stand that gender equality and women’s rights are crucial to democracy and sustainable livelihoods, to the planet’s health and to all of our future. It is too much to hope that the AWID Forum and this resulting set of excellent articles alone will keep the energy and passion we require to ensure a secure and safe future. Feminists and women’s rights defenders cannot do it for themselves, whatever the Annie Lennox and Aretha Franklin song (Sisters Are Doin’ It For Themselves) promises.What we need is for all peo- ple concerned about economic and social justice and development to be informed and knowledge- able on women’s rights within the context of economic and the whole breadth of today’s climate, food, energy and care crises.Women need to deal with economic issues from their own experience, in their own language and concerns and those experiences need to be brought to the table, as Ghosh says ^ feminists need to be actively engaged in the urgent task of finding alternatives. Development 55(3): Upfront 258 The journal abounds with vision and under- standing of what is required ^ the question will be how to ensure dialogue goes beyond the AWID Forum to reach others ^ so that gender equity is part of future social movement strategies, new forms of development policy and democratic change. The tweets, blogs and immediate report- ing via‘Open Democracy’, popular radio, television and alternative media meant that the highlights, individual peoples’ impressions and key messages went out immediately to tens of thousands of people. But building alliances is much harder. So how to break out of the comfort zone of the AWID Forum? That does not mean that such Forums should not be (especially ones that are so well organized, are held in seven languages and engage so many diverse people). These spaces are vital, given that the world is decidedly not a comfortable place for most attending ^ the transgender people, the sex workers, domestic workers, rape survivors, those living with disabil- ities, indigenous women, all of whom are strug- gling for their rights on many levels. But we need to work hard to make connections that reach out from such events and processes in order to build open inclusive spaces, networks and pathways towards economic justice. These alliances need to be built from strategic dialogues, joint action and political engagement that should be at the basis of true democratic engagement that confronts our current injustice economic and social power structures. Notes 1 TheAWID Forum held in Bangkok:‘Women’s Rights in Development’, Development 49(1), (January 2006);TheAWID Forum held in CapeTown:‘Power, Movements, Change’, Development 52(2), (June 2009). 2 See the Women’s Major Group press release: http://www.wecf.eu/english/press/releases/2012/06/womenstatement- outcomesRio.php. Harcourt: Upfront 259 
work_hqwjal4q5bdp3ejn2jhk4uk4ne	----	AMS Skip to main content Menu AMS Open Search Close Search Search the site: Main navigation (extended config) Academics+ Program Learning Outcomes Major Minor Current Course Offerings Academic Year Course Offering AMS Program+ Why be an AMS Major? Alumni People+ Faculty Lecturers Emeritus Faculty Staff Student+ Advising Emphasis Plan Senior Capstone Internship Prizes Transfer Students Letters of Recommendation Resources for Students AMS AT 50+ American Studies at UC Davis: Breaking Down Walls for 50 Years CAREN KAPLAN RETIREMENT SYMPOSIUM         Welcome! Founded during the 1968-69 school year, American Studies Department at UC Davis stands apart as the only department of its kind in the University of California system. In its 50 + years on campus it has been dedicated to creating an interdisciplinary space for students to connect their personal curiosities and concerns to broader public issues, histories, and materials.  What is American Studies? When you hear the phrase "American Studies," you might think of classrooms decked out in red, white, and blue; classes that feel just like your 10th grade U.S. history class; and images of Uncle Sam and Captain America. If you walk through our wing on the second floor of Hart Hall, you'll see that's not the case. The American Studies Department at Davis (AMS at UCD) looks at American culture as a compilation of things that can be questioned and analyzed. And it uses many lenses to understand the complicated, messy, and diverse lives people live in both in the United States and in an interconnected world. As an interdisciplinary department, AMS at UCD pulls from several disciplines (history, literature, environmental science, food science, sociology, and more) to explore phenomena in and related to U.S. culture. The faculty study food, prisons, the environment, artificial sweeteners, music, militarized culture, and much more. Each of them asks questions and teaches classes to help all of us make sense of the world we live in. So, in American Studies classes at Davis, you'll find folks asking questions about drones, thinking about the boom of diversity in comics, studying the California rodeo, analyzing the role of gossip in specific communities, wondering what needs to happen to save our planet, how to tie social science justice and academic research, and more.  Why study American Studies at Davis?  AMS at UCD has spent the last 50+ years grappling with questions of American-ness. The department isn't afraid to shy away from the personal and the political. You'll find that many of our faculty study topics that are near and dear to their hearts. AMS at UCD is a place for rigorous study and "making sense" of what's important to you. It's a place to ask big (and sometimes hard and scary) questions to better understand the world. American Studies Association Statement on BLM & Rebellion of 2020 Asian American Studies Association Statement on Atlanta Why be an American Studies Major? Our alumni are now lawyers, teachers, social workers, urban planners, marketing professionals, software engineers, filmmakers, professors, professional writers (and comedians) and non-profit staff and leaders. If this appeals to you, you might fit well in our community. If you have questions or curiosities about the diverse cultures that make up the U.S., AMS at UCD might be for you. If you want individualized attention, a major that lets you explore multiple disciplines, and the chance to study topics that are important to you, take a class with us or reach out to our major advisor and our undergraduate faculty advisor.  Contact Us Visit our advising office at 1203 Hart Hall (First floor). Closed due to COVID-19. Email general inquiries to ams-advising@ucdavis.edu. To contact individual faculty, see faculty listing. Call the American Studies office at 530-752-6429. Social Media Links Main Office 1203 Hart Hall (First floor) University of California, Davis  One Shields Avenue  Davis, CA 95616  Contact Us Visit our advising office at 1203 Hart Hall (First floor).  Email general inquiries to ams-advising@ucdavis.edu. To contact individual faculty, see faculty listing. Call the American Studies office at 530-752-6429. Join our Facebook group for news and announcements. Admin Links Login Webmaster UC Davis College of Letters and Science | Social Sciences and Humanities Building | 530-752-0394 University of California, Davis, One Shields Avenue, Davis, CA 95616 | 530-752-1011 Questions or comments? Privacy & Accessibility Principles of Community University of California Sitemap Last update: March 22, 2021 Copyright © The Regents of the University of California, Davis campus. All rights reserved. This site is officially grown in SiteFarm. 
work_hr4qb3hxcvbdldw32sxonq4clu	----	Injustice in the Justice System: Reforming Inequities for True “Justice for All” UC Santa Barbara UC Santa Barbara Previously Published Works Title Injustice in the Justice System: Reforming Inequities for True "Justice for All" Permalink https://escholarship.org/uc/item/5cx8s78s Journal COUNSELING PSYCHOLOGIST, 47(5) ISSN 0011-0000 Authors Varghese, Femina P Israel, Tania Seymour, Guy et al. Publication Date 2019-07-01 DOI 10.1177/0011000019892329 Peer reviewed eScholarship.org Powered by the California Digital Library University of California https://escholarship.org/uc/item/5cx8s78s https://escholarship.org/uc/item/5cx8s78s#author https://escholarship.org http://www.cdlib.org/ https://doi.org/10.1177/0011000019892329 The Counseling Psychologist 2019, Vol. 47(5) 682 –740 © The Author(s) 2019 Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/0011000019892329 journals.sagepub.com/home/tcp 50th Anniversary Commemoration Injustice in the Justice System: Reforming Inequities for True “Justice for All” Femina P. Varghese1 , Tania Israel2, Guy Seymour3, Rachel Becker Herbst4,5, Lauren G. Suarez6, and Candice Hargons7 Abstract True justice is equitable. Counseling psychologists, through their skills, knowledge, and values, can be a powerful force in reforming a system that oppresses marginalized groups to one that is just. In this paper, we focus on three major aspects of the justice system: laws and the courts, law enforcement, and detention and corrections, and we further describe injustice in these three areas. We then use critical race theory and counseling psychology perspectives to develop a framework to provide counseling psychologists with practical strategies to transform inequities. Such strategies include advocating to change unjust laws, filling the research gap for effective and humane practices, developing evidence-based programs, and providing leadership and training. Keywords race, undocumented immigrants, police, sex trafficking, crime 1University of Central Arkansas, Conway, AR, USA 2University of California, Santa Barbara, Santa Barbara, CA, USA 3Psicólogo Clínico y Forense Intercultural Hispano, Decatur, GA, USA 4Cincinnati Children’s Hospital Medical Center, Cincinnati, OH, USA 5University of Cincinnati, Cincinnati, OH, USA 6Bruce W. Carter Miami VA Medical Center, Miami, FL, USA 7University of Kentucky, Lexington, USA Corresponding Author: Femina P. Varghese, University of Central Arkansas, Department of Psychology and Counseling, Box 4915, Conway, AR 72035-0001, USA. Email: fvarghese@uca.edu 892329TCPXXX10.1177/0011000019892329The Counseling PsychologistVarghese et al. research-article2019 https://us.sagepub.com/en-us/journals-permissions https://journals.sagepub.com/home/tcp mailto:fvarghese@uca.edu http://crossmark.crossref.org/dialog/?doi=10.1177%2F0011000019892329&domain=pdf&date_stamp=2019-12-16 Varghese et al. 683 Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance. —Robert F. Kennedy, Day of Affirmation Address Administer true justice; show mercy and compassion to one another. —Zechariah 7:9, NIV From police use of excessive force to separating children from parents at the border, injustice in the justice system has garnered media attention (e.g., Benner, 2019; Jordan, 2019) and sparked public outrage (e.g., “Black lives upended by policing,” 2018; Ramsey, 2019). For People of Color, this injus- tice is particularly distressing (Bor, Venkataramani, Williams, & Tsai, 2018). For example, unarmed People of Color have experienced unnecessary vio- lence by law enforcement personnel, with law enforcement personnel rarely held accountable (Stinson, 2017). Youth of Color are disproportionately detained (Hockenberry & Puzzanchera, 2018) and disproportionately tried as adults (Juszkiewicz, 2007). Blacks comprise just 13.4% of the U.S. popula- tion (U.S. Census Bureau, 2017) but account for 33.0% of those incarcerated in state and federal prisons (Gramlich, 2018). In comparison, Whites com- prise 76.6% of the U.S. population, but account for 30.0% of the state and federal inmate population (Gramlich, 2018; U.S. Census Bureau, 2017). Our goal for justice system reform is an equitable system that upholds human rights and the dignity of people regardless of background. This goal is consistent with counseling psychology perspectives that emphasize social justice and cultural competence (see Altmaier & Hansen, 2012). Additionally, we acknowledge that inequities of the justice system reflect and reify the inequities in our larger society. We cannot fully resolve the problems in our justice system without dismantling racism and other forms of oppression in our society, but neither can we wait until we dismantle all forms of oppres- sion to address the oppression that resides in the justice system. Our aim for this manuscript is to elucidate strategies to maximize justice within the exist- ing system as we strive for more comprehensive societal reform. Throughout this manuscript, we primarily refer to distributive justice—the “fair and equitable allocation of resources, burdens, pains, and gains” (see Prilleltensky, 2014, p. 296)—and procedural justice, which focuses on how decisions are made about justice and who participates in decision-making 684 The Counseling Psychologist 47(5) about what is just. Inherent in this definition are requisite components of jus- tice, including whether individuals affected by decisions have been treated with fairness and included in the decision-making process (Prilleltensky, 2014). This 50th Anniversary issue of The Counseling Psychologist occurs 50 years after the assassination of two voices for justice, Martin Luther King, Jr. and Robert F. Kennedy. Yet, inequitable practices still permeate the U.S. justice sys- tem. Like Martin Luther King, Jr. and Robert F. Kennedy, we believe that justice is a human right. Reforming the system presents many challenges, including filling the research gap in justice reform issues, disseminating research about prevention and cultural competence, educating the public on justice reform issues, and developing effective relationships to transform societal structures. We encourage counseling psychologists to utilize their skills, knowledge, and values toward justice reform to create a just society for all people. Alongside the lens of counseling psychology, which we describe next, we use critical race theory (CRT; Delgado & Stefancic, 2017) as a framework to understand and approach justice system reform, given the salience of racial discrepancies within the justice system. CRT aligns with multiculturalism and advocacy goals and helps frame the potential role of counseling psy- chologists in justice system reform. CRT is particularly suitable for this dis- cussion, as the theory was developed within the legal system and focuses on reforming unjust societal systems, with iterations for Latinx (LatCrit), sexual minorities, and other oppressed marginalized groups (Delgado & Stafancic, 2017). Further, given the theory’s emphasis on the historical and current dis- proportionate rates of injustice among People of Color (Delgado & Stefancic, 2017), CRT aligns well with the aims of this paper. CRT CRT burgeoned in the 1970s to describe the racism jeopardizing the civil rights of People of Color, and as an answer to varied conceptualizations of the issue of racism (Crenshaw, 2011; Delgado & Stefancic, 2017). CRT provides a systemic understanding of racism, intersectionality, power, and oppression. It is comprised of core tenets focused on understanding racism and social action, where the latter is seen as a tool to reform society (Delgado & Stefancic, 2017). Crenshaw (2011) argued that CRT encourages a transdisci- plinary critique of the postracial society, and this article follows that recom- mendation by synthesizing the literature on law and criminal justice with that of counseling psychology and education. An overarching tenet of CRT is that racism is a normative, common expe- rience among People of Color, and that it is difficult to eradicate because it is embedded in the routine operations of U.S. society. Faith in “meritocracy” Varghese et al. 685 and “color-blindness” masks the most obvious forms of racism (Delgado & Stefancic, 2017) CRT argues for equitable treatment of all people to combat subtle forms of racism prevalent in society. A second tenet of CRT, as pro- posed by Delgado and Stefancic (2017), presents the lens that because racism serves to benefit White people, there would likely be less motivation for White people to end racism. The third tenet states that race (e.g., physical features such as skin color) is a social construct and invention of society, as there is no evidence of the biological underpinnings of the concept of race. Another tenet of the theory asserts that the privileged group may view the oppressed group differently depending on the era. For example, immigrant Muslims might be initially viewed as exotic, but once feared, could then be viewed as dangers to society to be hated (Delgado & Stefancic, 2017). The fifth tenet of CRT argues that no person has a single identity and encourages the study of intersectionality, multiple identities, and diversity within racial and/or ethnic groups (Crenshaw, 1991; Delgado & Stefancic, 2017; Moradi & Grzanka, 2017). This is important given that racism operates alongside and in conjunction with other systems of oppression such as clas- sism, sexism, heterosexism, ableism, and nativism. A key consideration of intersectionality is that the experiences of those with multiple marginalized identities (e.g., Black women) cannot be fully understood if each identity is examined independently. For example, Women of Color who are victimized experience unique structural barriers that exacerbate stressors—such as pov- erty, unemployment, and low social capital—as a result of being both a woman and a Person of Color (Crenshaw, 1991). Finally, CRT stresses the value of understanding the life experiences of People of Color when studying racially divided social positions, and in par- ticular the importance of understanding individuals’ distinctive stories in conceptualizing race and racism within political, social, and historical set- tings. Any efforts toward social justice require explicit attention to racism and its connections to other systems of oppression (Delgado & Stefancic, 2017). As we discuss in each section that follows, CRT provides a framework to understand the societal role in oppressing People of Color through laws, enforcement of laws, and how punishment is levied. Counseling psycholo- gists’ efforts to make the justice system more just will be incomplete if racism is not explicitly addressed. Psychology Framework for Justice System Advocacy The field of counseling psychology reflects a unique set of values, including cultural competence, social justice, and prevention (Altmaier & Hansen, 2012). 686 The Counseling Psychologist 47(5) Notably, values related to CRT, such as the importance of understanding sys- temic barriers, and the use of social justice advocacy, are becoming increasingly prominent in the field (Lichtenberg, Hutman, & Goodyear, 2018). Motivated by such values, counseling psychologists are well positioned to tackle the chal- lenges of the justice system. As witnesses to outcomes of injustice and equipped with interpersonal skills, counseling psychologists are in a position to collabo- rate with, and advocate for, those who are most negatively impacted by the jus- tice system. Guided by CRT, counseling psychology skills can be used to advance meaningful advocacy efforts. Allied mental health professionals have articulated how to apply values and skills to advocacy efforts. For example, the American Counseling Association’s Advocacy Competency Domains (Toporek & Daniels, 2018) conceptualize advocacy in terms of (a) the level of intervention (microlevel to macrolevel), (b) the extent of client involvement (in collaboration with vs. on behalf of), and (c) the focus of counselor energy (from client support to system interventions). Envisioning the role of counseling psychologists in promoting justice within the justice system, we developed a framework that focuses on the macrolevel and system intervention aspects of advocacy, drawing on psychologists’ strengths in research and intervention. Specifically, our framework, titled Framework for Justice System Advocacy (Table 1) identifies ways in which counseling psychologists can apply their skills to generate, interpret, and disseminate knowledge, as well as take action based Table 1. Framework for Justice System Advocacy Targets of Efforts Types of Efforts Policy makers Policy and system implementers Individuals affected by policies and systems Public Generate knowledge Conduct policy relevant research Evaluate interventions, policy, and practice Investigate experiences of those affected by injustice Study public perceptions and attitudes that perpetuate injustice Interpret and disseminate knowledge Share knowledge with policy makers and courts Conduct professional development and consultation with justice system employees Empower communities with knowledge Inform the public Take action based on evidence, skills, and values Make policy Advance implementation of evidence-based practice Engage in targeted community prevention and intervention efforts Engage in universal prevention and intervention efforts Varghese et al. 687 on evidence, skills, and values. Counseling psychologists may focus their skills to work with those who develop, implement, or are particularly influ- enced by policy related to the justice system, and also to work with the gen- eral public. Ideally, this framework will help counseling psychologists align their interests, skills, and connections with specific types of advocacy to pro- mote justice in the justice system. Consistent with our aim of providing an actionable mission for counseling psychologists to promote justice, we focus on three major aspects of the justice system: laws and the courts, law enforcement, and corrections and detention. These are three large structures in society foundational to distributive and pro- cedural justice, and provide the context in which People of Color face injustice within the justice system. Grounded on CRT and counseling psychology per- spectives, we specifically endeavor to (a) identify areas within the justice sys- tem in need of reform; (b) present strategies for counseling psychologists’ potential roles in justice system reform; and (c) highlight implications for clini- cal practice, research, education, and advocacy in justice system reform. Laws and the Courts Racialized Laws: Past and Present According to CRT, it is important to examine historical, social, political, and economic contexts when developing an understanding of racial stratification in U.S. society (Delgado & Stefancic, 2017); these contexts also influence differential outcomes in the justice system for People of Color. Consider, for example, a recently discontinued U.S. policy of separating migrant families at the Southern border. This mirrors other historical laws and policies in the United States (Pryce, 2018). For example, slavery separated children from mothers for profit (Pryce, 2018). “Black Codes” separated Black men from their families through arrest and incarceration (Blackmon, 2009). Boarding schools separated Native American children from families for forced assimi- lation (see Gone et al., 2019; Pryce, 2018). Other laws demonstrate continual injustice for People of Color. During World War II, over 110,000 Japanese living in the United States were forced to relocate to internment camps (see Nagata, Kim, & Wu, 2019). During the Great Depression, it has been esti- mated that up to 1,000,000 Mexican immigrants and U.S. citizens of Mexican ancestry were coerced to leave the country (U.S. Citizenship and Immigration Services, 2014). Deportations took place even in hospital emergency rooms, leading to community trauma, as some U.S. citizens of Latinx descent con- tinue to avoid accessing emergency health care for fear of deportation (Maldonado, Rodriguez, Torres, Flores, & Lovato, 2013). 688 The Counseling Psychologist 47(5) Even some laws that do not explicitly dictate discriminatory procedures based on race still disproportionately and negatively influence People of Color. For example, under Presidents Richard Nixon and Ronald Reagan, the federal government initiated and escalated the War on Drugs, which dispro- portionately criminalized drugs used and sold primarily by Persons of Color (Hinton, 2016). U.S. laws enacted after the terrorist attacks of September 11, 2001, increased the deportation and detainment of immigrants (Roth, 2005). Further, and in conflict with international law, torture strategies (e.g., water- boarding) were employed on detained Muslims, many of whom were from Arab or South Asian countries, and who were suspected, even without evi- dence of guilt, of terroristic associations (Barak, Leighton, & Cotton, 2015; Senate Select Committee on Intelligence, 2014). Today, laws continue to have a differential application for People of Color. On June 26, 2018, the U.S. Supreme Court upheld a ban that prevented entry to the United States by people from five Muslim majority nations—Iran, Libya, Somalia, Syria, and Yemen (Trump, President of the United States v. Hawaii, 2018). Other laws allow law enforcement personnel to stop anyone even suspected of having an undocumented status (Williams, 2011). Further, the U.S. Department of Justice (U.S. DOJ) reported that law enforcement has been used to systematically extract money from the poorest residents of cities (e.g., residents in Ferguson, Missouri; U.S. DOJ, 2015). Other laws have been differentially applied to People of Color, even if not developed to be intentionally racist. For example, “Stand Your Ground” laws allow civilians to use deadly force for self or property protection (National Conference of State Legislatures, 2018). According to Florida law: (1) A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use: (a) Nondeadly force against another when and to the extent that the per- son reasonably believes that such conduct is necessary to defend him- self or herself or another against the other’s imminent use of unlawful force; or (b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the immi- nent commission of a forcible felony (Justifiable Use of Force, 2019). An analysis of convictions based on Florida’s “Stand Your Ground” laws found that, if the victim was White, a conviction of guilt for using deadly Varghese et al. 689 force was twice as likely than if the victim was not White (Ackerman, Goodman, Gilbert, Arroyo-Johnson, & Pagano, 2015). Sentencing and Fees Sentencing. Laws that influence sentencing can also create inequities in the justice system, and such laws can disproportionately affect People of Color. For example, “Mandatory Minimum Sentencing” laws require judges to give predetermined sentences for crimes regardless of context. Thus, having 5 grams of methamphetamine requires a sentence of at least 5 years of prison (Criminal Justice Policy Foundation, 2018). Crack cocaine, which is predomi- nantly used by the Black community, has a mandatory minimum of 5 years for 28 grams. On the other hand, powder cocaine, which is similar to crack cocaine but lacks baking soda, is used primarily by Whites, and has a mandatory mini- mum of 5 years for 500 grams (U.S. Sentencing Commission, 2017b). Thus, these sentencing guidelines can disproportionately affect People of Color. Further, the death penalty is legal in 31 states, with Blacks encompassing 41.5% of all people on death row (Criminal Justice Project, 2017), despite the fact that Blacks account for only 13.4% of the U.S. population (U.S. Census Bureau, 2017). Similarly, the U.S. Sentencing Commission (2017a) found that, controlling for relevant factors such as type of crime, Black men are given sentence lengths 19.1% longer than White men. There is also a strong potential for bias to arise in the jury selection process, as jurors are selected from lists that often underrepresent People of Color such as vehicle registra- tions, voter registrations, and property tax rolls (see Walker, Spohn, & Delone, 2018). Judges may also hold biases. In an empirical study with 239 federal and state judges (29% women), results suggested that judges held implicit bias and prejudice against People of Color and religious minorities (Levinson, Bennett, & Hioki, 2017). Attempts to ameliorate bias, such as computerized methods of sentencing, may also be problematic, as the data for computer algorithms may themselves be biased, such as arrest data that fail to account for enhanced police surveillance in areas populated by People of Color or data from sources that may not be methodologically sound (Hannah- Moffatt, 2018). One such algorithm had a much higher rate of false positives in predicting recidivism for Blacks (40.4% false positives) than for Whites (25.4% false positives; Dressel & Farid, 2018). More effective strategies to decrease sentencing bias are needed that address root causes and promote procedural justice. Fees. Although public safety should be the reason for court involvement, fines and fees (e.g., as administrative add-ons to traffic tickets) often provide 690 The Counseling Psychologist 47(5) revenue to the court and local government. However, the collection of fees is a separate issue from public safety and could present a conflict of interest (Case & Bhattacharya, 2017). Indeed, public safety may worsen with fines and fees, as youth punished with fines and fees are more likely to recidivate (Piquero & Jennings, 2016). In many states, not paying a fine for a traffic violation leads to higher fees, yet people who are poor often struggle to pay fees that range from $100 to $300 (Case & Battacharya, 2017). In evaluating the police and court system in Ferguson, Missouri for just the year 2013, the Justice Department found that although the city had a population of 21,135 residents, 32,975 warrants for arrests were issued, mainly for traffic-related offenses (Schwartztol, 2017). In addition, most of the courts in St. Louis, MO, give high fines for traffic citations and other misdemeanor offenses, disproportionately burdening individuals with lower socio-economic status and threatening their ability to obtain and retain employment (“Policing and Profit,” 2015). Physical and Mental Health Consequences of Biased Laws and its Application A foundational principle of U.S. democracy, stated clearly in the U.S. Declaration of Independence, is that government powers are derived from the consent of the governed. Such powers include establishing laws and policies. Thus, it can be considered that biased laws and courts may reflect similarly biased societal beliefs and attitudes toward targeted groups. Societal discrimi- nation appears to have physical and mental health consequences, as meta- analytic reviews found that perceived discrimination and racism negatively affected physical and mental health (Carter, Lau, Johnson, & Kirkinis, 2017; Lee & Ahn, 2011; Pascoe & Richman, 2009). Although more empirical evi- dence for a direct relationship between biased laws and health is needed, given the history of U.S. policies and laws that have treated People of Color in an unjust manner, the findings of the aforementioned meta-analyses might pro- vide at least a partial explanation for why People of Color not only have the highest incarceration rates but also the worst health outcomes, including the highest rates of infant mortality, the highest rates of mortality associated with diabetes, and the highest mortality rates before age 75 (Bailey et al., 2017). CRT posits that racism is pervasive throughout the structures of society, extending beyond the laws and the courts. Laws need to be enforced, yet unjust laws have had a disproportionate application on People of Color, often creating incentives and an infrastructure that leads law enforcement person- nel to focus disproportionately on these communities (U.S. DOJ, Civil Rights Division, 2015). Thus, the next section provides further discussion about the Varghese et al. 691 enforcement of laws, community reactions to their enforcement, and issues in law enforcement training and intervention. Law Enforcement Police shootings of unarmed Black men have evoked national attention (Hargons et al., 2017). CRT emphasizes a systemic understanding of such racial injustice by focusing on the perspectives of the oppressed group, and endorses the enactment of change through advocacy. This section extends the CRT framework to provide information on the racially unjust state of U.S. law enforcement, community perceptions of law enforcement, and ongoing initiatives to address injustices. Police Violence, Racial Profiling, and Discrimination Against People of Color The proliferation of incidents where unarmed People of Color—such as Blacks, Latinx, Native Americans, and Asians—have been seriously injured or killed, have led to increased efforts for more careful oversight of law enforcement personnel, including efforts for greater transparency in the supervision and reporting of police activities (see Police Executive Research Forum, 2015). Among rates of people killed by police in 2016, out of every 1,000,000 individuals, Native Americans were killed at the highest rate at 10.13 persons, followed by Blacks at 6.64, and Latinx at 3.23, whereas Whites and Asians/Pacific Islanders were killed at rates of 2.9 and 1.17, respectively (Swaine & McCarthy, 2017). The National Institute of Justice (2011) has identified problematic policies and strategies in the use of force by law enforcement personnel. In many instances, the use of Oleoresin Capsicum (pepper spray) and electronic con- trol weapons (e.g., stun guns, tasers) has been included routinely under defi- nitions of “police brutality,” or has been used to illustrate the use of excessive force (National Institute of Justice, 2011). The proliferation of cameras, from those in cellular phones to body cameras worn by police, to store-bought video cameras, allows for an even greater awareness of racial disparities in policing (Dreier, 2016). For example, when reporting on the court record of a fatal police shooting in 2014, the Dayton News stated that John Crawford III was shot to death by law enforcement personnel in a Walmart store due to concerns that a Black man was loading and pointing a gun at people in the store. However, store video revealed that the customer had not pointed a gun at anyone but was looking at the shelf while nonchalantly swinging a Walmart BB gun (Gokavi, 2016). 692 The Counseling Psychologist 47(5) The “Veil of Darkness” analytic method, one of the most data-driven methods for examining racial differences in the pattern of police traffic stops, compares traffic stops in daylight with stops in the evening (Ross, Fazzalaro, Barone, & Kalinowski, 2016). Ross et al. (2016) found that People of Color were more likely than their White counterparts to be stopped during the day, when the driver’s race was visible, than at night when race was less visible. In addition, a comprehensive investigative report on the city of Ferguson revealed that city officials routinely urged the police chief to generate more revenue through enforcement of traffic laws and local ordinances, even when legitimate violations had not taken place (U.S. DOJ, Civil Rights Division, 2015). This mandate profoundly influenced the Ferguson Police Department’s relationship with the community, as officers seemed to view some residents, especially those in Black and poor neighborhoods, less as constituents to be protected than as prey for potential sources of revenue (U.S. DOJ, Civil Rights Division, 2015). These unjust practices were so egregious that the city was mandated to develop a court-supervised consent agreement with the U.S. Justice Department’s Office of Civil Rights (U.S. v. City of Ferguson, 2016 This consent agreement committed the municipality (e.g., city or district) to appoint and pay for a federally authorized monitor of the agreement, actually a one- or two-person office with associated staff who would have court-mandated oversight of all police operations, includ- ing the task of reviewing and supervising critical incidents, especially use- of-force events. The monitor, as per the agreement, must support wide-ranging involvement of community members, including the development of com- mittees of residents who provide input about the way in which the Ferguson Police Department is run. Data collected through this initiative, including use-of-force incidents, vehicle searches conducted pursuant to traffic stops, and other elements of enforcement actions, were required by the consent agreements to be made available to the federal monitor, including the rea- sons for taking those actions (see U.S. v. City of Cleveland, 2015; U.S. v. City of Ferguson, 2016). Because the consent agreement gave the monitor over- sight of the Ferguson Police Department, local government officials resisted the change but were obligated to abide by it by the Federal Court (see U.S. v. City of Cleveland, 2015; U.S. v. City of Ferguson, 2016). Although the experiences of Men of Color are highlighted in popular media, Black women also experience disparities in policing. Black women are more likely than White and Latina women to experience traffic stops as well as arrests during stops (Prison Policy Initiative, 2019). For example, video footage of Sandra Bland, a Black woman stopped by police for a sim- ple traffic violation, shows the officer violently throwing her to the ground and threatening her with “I will light you up!” for refusing to put out her Varghese et al. 693 cigarette (Ford, 2015). In 2013, of all women stopped by police in New York City, 53.4% were Black, and 27.5% were Latina, but only 13.4% were White (as reported in Crenshaw, Ritchie, Anspach, Gilmer, & Harris, 2015). South Asians have also experienced use of excessive force and unjust treatment by police (e.g., American Civil Liberties Union [ACLU] of New York, 2019; Patel v. City of Madison, 2018; Sikh American Legal Education Defense Fund, 2007). For example, a 57-year-old Asian Indian man, Sureshbhai Patel, was visiting his son, an engineer, in Madison, AL. While walking in the neighborhood where his son lived, a law enforcement officer approached and questioned Mr. Patel because the officer had received a call regarding an unfamiliar “skinny Black man” in the neighborhood. Mr. Patel was unable to speak English, and with the few English words he knew, stated multiple times “India” and “no English” to the officer. The officer did not appear to pay attention to the statements, however, and during the pat down threw Patel, who weighed 115-lbs. and was unarmed, to the ground with such a violent force, that it caused severe spinal injury and paralysis in the Indian man. The officer claimed that Mr. Patel did not listen to him and jerked away—although video evidence did not indicate that any such movement occurred (Patel v. City of Madison, 2018). Despite the video evidence, the officer did not lose his job and the assault charges for the officer were dropped, as the judge (a White female) stated that the officer’s guilt could not be proven beyond a reasonable doubt (see Fuchs, 2016). In addition to racial minorities, individuals with disabilities have dispro- portionately experienced police use of force. The Treatment Advocacy Center (2015) investigated three different databases, one from 2011 and two from 2015, and discovered that 25% of people killed by law enforcement person- nel had a cognitive disability or mental health diagnosis, including many high profile cases involving People of Color (e.g., Eric Garner, Sandra Bland; Perry & Carter-Long, 2016). The U.S. Department of Health and Human Services (2017) reported that, compared to the general population, having a significant mental illness increased the probability to be the victims of violent crime tenfold, and the mentally ill were responsible for 3% to 5% of violent crimes. Use of force toward people with a disability further underscores the need for transformation in the justice system. There is a need to understand “where disability intersects with other factors that often lead to police vio- lence” (Perry & Carter-Long, 2016, p. 1). Community Perspectives People of Color. Systemic injustices, perceptions, and experiences of police– community interactions differ based on the race and/or ethnicity of the 694 The Counseling Psychologist 47(5) community members. Numerous studies have demonstrated that Black and Latinx community members report lower trust of law enforcement officers than their White counterparts (e.g., Brunson & Miller, 2006; Solis, Portillo, & Brunson, 2009). Brunson and Miller (2006) interviewed 40 Black youth aged 13 to 19 years in St. Louis, to explore their perceptions of law enforce- ment. Most participants stated that they had or experienced (83%) harass- ment by law enforcement personnel. Some participants reported that law enforcement officers did not arrive quickly when called for help, and when participants were charged with crimes, law enforcement officers acted more forcefully and violently than necessary. A study in Miami presented similar results (Ruffin, 2017), indicating that 82% of the respondents perceived that race and social class were the biggest reasons for the poor interactions between the police and the community. A qualitative study of 30 Puerto Rican and Dominican young adults in New York’s Spanish Harlem sug- gested “unfavorable views of local police, concerns about the amount of time it takes for officers to arrive when summoned, and officers’ routine disre- spect of community members during involuntary police citizen encounters” (Solis et al., 2009, pp. 44–45). Variability in experiences may occur across groups and cities. For exam- ple, a survey of 850 Arab Americans in Detroit indicated that most partici- pants endorsed confidence in the police (Sun & Wu, 2015). However, another study using community-based data indicated that the majority of Arab American participants did not support aggressive antiterrorist policing of Arab Americans (Sun, Wu, & Poteyeva, 2011). These findings suggest that within marginalized racial and ethnic groups, community perspectives on policing align with the community’s experiences of law enforcement. Given that Communities of Color also want to be protected and served, participants’ perspectives reflect both the desired role of law enforcement and lived expe- rience with law enforcement. This complex picture unpacks dichotomous notions of police and community relations in Communities of Color, and pro- vides a starting point for counseling psychologists to understand ways in which they may partner with both groups to reenvision the function of law enforcement in Communities of Color. LGBTQ communities. CRT tradition provides an analysis that focuses on race. However, injustices in the justice system may be directed at marginalized groups or at individuals whose marginalized identities intersect with racially marginalized identities, such as sexual and gender minorities (SGMs). Simi- lar to racial minorities, SGMs report experiencing biased treatment by law enforcement, such as officers’ reluctance to intervene in anti-LGBTQ public harassment, or their unwillingness to determine if a crime was motivated by Varghese et al. 695 hate (Israel et al., 2017). These perceptions may contribute to LGBTQ peo- ple’s mistrust of law enforcement personnel and reluctance to report crimes (Mallory, Hasenbush, & Sears, 2015). Further, law-enforcement culture reflects traditional masculinity and heteronormativity (Collins & Rocco, 2015), with evidence of hostility towards peers who are sexual-minority law enforcement officers (Lyons, DeValve, & Garner, 2008). In a large study of transgender Latinx women, most participants reported verbally abusive treatment by police, with 24% indicating sexual assault by police and 21% indicating physical assault (Mallory et al., 2015). Furthermore, laws that criminalize sexual behavior related to HIV status are used dispro- portionately against People of Color (Center for American Progress & Movement Advancement Project, 2016). Such disparities in the application of justice result in the intersectionality of oppression within the legal system, which mirrors societal inequities. Physical and Mental Health Consequences of Unjust Law Enforcement When suspects resist police authority or when law enforcement officers use force, the potential for injury increases. Police injured an estimated 55,400 people during stop-and-search incidents in 2012 (Miller et al., 2017). A study of 304 residents and 261 police officers in the Ferguson community found that Black residents experienced higher levels of depres- sion and PTSD than White residents; further, all residents in the sample, regardless of race, had higher symptoms of these disorders than law enforcement personnel (Galovski et al., 2016). The authors attributed Black residents’ high levels of distress to the community violence that ensued between community members and police following the death of Michael Brown, an unarmed Black youth shot to death by a White law enforcement officer. Similarly, Muslim Americans in the United States who experienced government or police surveillance reported higher levels of anxiety than Muslim Americans who had not interfaced with law enforcement personnel (O’Conner & Jahan, 2014). CRT emphasizes that racism is pervasive. Thus, the natural result of racial bias in laws, courts, and law enforcement is the subsequent over-representa- tion of People of Color and those with intersecting identities in corrections and detention centers. In the next section, corrections and detention are dis- cussed, focusing on those groups that are over-represented in youth and adult facilities. We also outline the specific roles that counseling psychologists can take in alleviating these disparities. 696 The Counseling Psychologist 47(5) Detention and Corrections: Juveniles, Adults, Re-entry, and Special Populations One in 45 Whites is under correctional supervision, but the proportions are much higher for People of Color; one in 11 Blacks and one in 27 Latinx are under correctional supervision (Pew Center on the States, 2009). An analysis of 2014 data from the Bureau of Justice Statistics reported that Black women had 1.6 to 4.1 times more likelihood of incarceration than White women (Carson, 2015). Sexual minorities are significantly overrepresented amid those who are incarcerated, comprising 42.1% of all incarcerated women (Meyer et al., 2017). Of transgender women, nearly one in five (19.3%) expe- rienced incarceration, and 41.6% among these were transgender Women of Color (Reisner, Bailey, & Sevelius, 2014). Compared to other Western countries, the United States seems less focused on rehabilitation in general (Subramanian & Shames, 2013). When compar- ing U.S. prisons with prisons in Germany and Norway, results indicated that overall, those in Europe focused more on rehabilitation than those in the United States; U.S. prisons seemed more focused on punishment than reha- bilitation (Subramanian & Shames, 2013). Further, the growth in the use of private prisons in the United States (Gotsch & Basti, 2018), which have a profit-generating motive to incarcerate individuals, may constitute a conflict of interest. With an emphasis on profits, these prisons have little incentive to focus on rehabilitating prisoners or enhancing public safety. In the next sec- tion, we address issues related to the correctional system, such as detention populations and issues, adjudicated youth, youth trafficking, adult imprison- ment, and reentry into society. We conclude by discussing the growth of immigrants in federal detention facilities, with specific considerations for unaccompanied immigrant minors. Justice-Involved Youth Arrest and Detention. Youth of Color are overrepresented among youth arrested and detained (Krisberg, 2018), a concept widely known as dispro- portionate minority contact. National juvenile court statistics from 2015 indi- cate that more Black youth (28,400) were placed out of the home (e.g., detention) than their White counterparts (22,400; Hockenberry & Puzzanch- era, 2018). Further, Latinx youth were also more likely to be detained than Whites (Bonnie, Johnson, Chemers, & Schuck, 2013). This is problematic, as juvenile detentions are often perceived as “pipelines to prison” (Edelman, 2007, p. A43). In addition, Black and Latinx youth are more likely to be tried as adults than their White counterparts (Juszkiewicz, 2007). Gonzales (2016) Varghese et al. 697 reported on a study conducted by WNYC radio in which data obtained from New Jersey courts revealed that almost 90% of the youth tried as adults were Black or Latinx. Numerous factors contribute to this disproportionate minority contact, including structural disparities such as poverty, poor housing, poor nutrition, and harsher discipline in school for Youth of Color versus their White peers (see Bartol & Bartol, 2017; Bonnie et al., 2013). Structural disparities influ- ence criminal justice contact in a number of ways. For example, children in low-income, inner-city neighborhoods are exposed to high levels of lead, a potential risk factor for antisocial behavior (see Bartol & Bartol, 2017). In one study of young adults born to mothers living in older housing that had lead contamination, those who had higher arrest rates also had higher levels of blood lead concentration (Wright et al., 2008). Girls of Color are also overrepresented in the justice system. The National Women’s Law Center analyzed data from 2013 to 2014 from the U.S. Department of Education Office of Civil rights, and found that Black girls are 5.5 times more likely to experience suspension from school compared to White girls, and Native American and Latina girls are three times and two times, respectively, more likely to be suspended, illustrating how Girls of Color are placed at higher risk of justice system involvement (Onyeka- Crawford, Patrick, & Chaudhry, 2017). Using the same data set, researchers found that although Black girls comprise 15.6% of the school population, they constitute 37.3% of the girls arrested (Onyeka-Crawford et al., 2017). LGBT youth are overrepresented in the justice system as well, making up 20% of all juveniles; among these, 85% are Youth of Color (Center for American Progress, 2016). In one study, sexual minority youth reported experiencing harsher school discipline, and being more involved in the jus- tice system, than their nonsexual minority peers (Poteat, Scheer, & Chong, 2016). In a study of 55 LGBT youth involved with the justice system, over 90% of participants reported problems related to lack of parental support (Majd, Marksamer, & Reyes, 2009). In another study of sexual minority youth involved in the justice system, participants reported experiencing more sexual victimization than their heterosexual peers (Wilson et al., 2017) Child sex trafficking. Although many states have enacted legislation to protect victims of child sex trafficking, these youth continue to face increased risk of contact with the juvenile justice system (Polaris Project, 2013; Shared Hope International, 2016). The exact number of commercially sexually exploited children (CSEC) in the United States is difficult to determine, yet the U.S. Department of Justice estimates that at least 100,000 and up to 3,000,000 children are forced into prostitution, pornography, and/or sexual slavery 698 The Counseling Psychologist 47(5) (Curtis et al., 2008). Covenant House (2013) found that approximately 25% of homeless youth receiving services at their shelter in New York were either trafficked or exchanged sex to have their basic needs met. Despite the fact that no certain figures exist, child advocates are concerned that the CSEC population is expanding due to Internet facilitation of trafficking and global- ization (Coonan & Thompson, 2003; Curtis et al., 2008). The Victims of Trafficking and Violence and Protection Act of 2000 defined severe forms of trafficking in persons as “a commercial sex act. . . induced by force, fraud or coercion or in which the person induced to perform such act is under 18 years of age” (§ 103-8). A commercial sex act refers to “any sex act, on account of which anything of value is given to or received by any person” (§ 103-8). Therefore, when a minor exchanges a sexual act for an item of value, this action meets the legal definition of sex trafficking whether the youth’s actions are believed to be coerced or voluntary (Covenant House, 2013; Finklea, Fernandes-Alcantara, & Siskin, 2015). Despite this legal pro- tection, many youth who engage in survival sex, or exchange sexual acts to acquire necessities such as food and shelter, risk criminalization or arrest (Lavoie, Dickerson, Redlich, & Quas, 2019). More recently, states have enacted “safe harbor” policies to increase the likelihood that CSEC will receive social welfare services rather than detention. Policing procedures and training vary widely, however, and in some states, CSEC are still legally allowed to be charged with prostitution (Lavoie et al., 2019). The American Psychological Association’s (APA) Report of the Task Force on Trafficking of Women and Girls (2014) noted that those at greatest risk for sex trafficking in the U.S. are vulnerable populations, including immigrants and People of Color (Clawson, Salomon, & Grace, 2008; Estes & Weiner, 2001). Further, emergent data suggests that Native American women and LGBT youth are at significantly higher risk of exploitation as compared to their White counterparts (Curtis et al., 2008; Deer, 2010). Risk factors for victimization include environmental conditions that disproportionately influ- ence low-income Communities of Color and Native populations, such as overcrowding, high rates of substance use and unemployment, and a thriving adult prostitution market (Deer, 2010; Estes & Weiner, 2001). In addition to environmental risk factors, individual risk factors include a history of child- hood trauma and interaction with the child welfare system (Gerassi, 2015). Externalizing behaviors often co-occur with risk factors for trafficking, lead- ing to increased risk of runaway behavior, truancy, and substance use (Landers, McGrath, Johnson, Armstrong, & Dollard, 2017). Specifically, a history of sexual abuse has been associated with greater likelihood of incar- ceration among girls, a phenomenon termed the “sexual abuse to prison pipe- line” (Saar, Epstein, Rosenthal, & Vafa, 2015, p. 5). Varghese et al. 699 Survivors of sex trafficking might come into contact with the justice sys- tem through a variety of pathways. Often, CSEC are initially arrested on sus- picion of prostitution or detained due to perceived involvement in delinquent behavior (Lavoie et al., 2019). Low-income Communities of Color may expe- rience higher rates of surveillance and legal punitive action, increasing the likelihood of individuals in those communities being detained following sex- ual exploitation (Sanghera, 2005). Of those engaging in survival sex in New York City, the majority are Youth of Color (Curtis et al., 2008). In one qualita- tive study examining the experiences of 283 LGBT youth engaging in survival sex, 37% identified as Black, 22% as Latinx, and 30% reported identifying with more than one race or ethnicity (Dank et al., 2015). Although there is a lack of research exploring rates of exploitation in Native communities, emer- gent data suggest that rates of sex trafficking are exceedingly high among Native American women (Deer, 2010). The literature points to an increased risk of trafficking among Women of Color due to economic and systemic bar- riers (Gerassi, 2015). As such, there is an increased likelihood that CSEC from marginalized communities will interact with the justice system. Adult Corrections The United States incarcerates more people than any other country in the world, with 49.3% of those incarcerated returning after release (U.S. Sentencing Commission, 2016). Mentally ill inmates are overrepresented in corrections (James & Glaze, 2006). According to a U.S. DOJ Bureau of Justice Statistics Special Report, in 2005 more than half of individuals in U.S. prisons and jails had a mental illness (James & Glaze, 2006). Scholars have found that 4% to 7% of the growth in incarceration between 1980 and 2000 was due to the deinstitutionalization of psychiatric hospitals (Raphael & Stoll, 2013). The use of private prisons run by for-profit companies has seen growth in the United States (Gotsch, & Basti, 2018). After comparing reports from the U.S. DOJ Bureau of Justice Statistics in 2000 and 2016, Gotsch and Basti (2018) of the Sentencing Project reported there has been a 47% increase in the private prison population, with a 442% increase in private detention centers for immi- grants, during this time. Having prisons that are in the business of generating profits could be a conflict of interest with rehabilitation efforts, given that profits are generated by housing people who are incarcerated, not by rehabilitating them for successful release. Further, such prisons are more violent and unsafe compared to government prisons (Office of Inspector General U.S. Department of Justice, 2016). For-profit prison companies generate several billion dollars in profits annually (Gotsch, & Basti, 2018). Lobbying efforts appear to be strong 700 The Counseling Psychologist 47(5) by for-profit prison companies. For example, the ACLU of Montana (2017) reported that one for-profit prison entity, Core CIVIC, offered $30 million to the state’s governing administration to renew its private prison contract for another decade. An important part of best practices in correctional treatment to reduce recidivism, as noted in the risk need responsivity model (Bonta & Andrews, 2017), is for services to be tailored to the individual characteristics of the justice-involved person, such as race and ethnicity—a principle called responsivity (Bonta & Andrews, 2017). Correctly applying responsivity may be beneficial to encourage participation in prison programming for People of Color. For example, Rampey et al. (2016) of the U.S. Department of Education released a report indicating that Blacks, Latinx, and foreign-born persons have the lowest literacy and mathematical skills of all prisoners, and Blacks have the lowest rates of full-time employment history. Yet, Blacks were the least likely to receive training from college or trade school while in prison, as indicated by obtaining a certificate (Rampey et al., 2016). These compounded difficulties, coupled with racism, would continue the cycle of disadvantages in employment following release (Pager, 2003; Varghese, Hardin, Bauer, 2009). Relatedly, in an empirical investigation, researchers found that employers were less likely to call back Black men with a criminal record than their White counterparts, all other factors being equal (Pager, 2003). Undocumented Immigrants Immigrants comprise one of the fastest growing populations in the United States. It is estimated that 50% of U.S. foreign-born individuals are from Latin America (U.S. Census Bureau, 2017). A widely used term to describe immigrants who live in the United States without permitted admission by the government is undocumented. Research suggests that the intertwining of the criminal and immigration systems has led to a two-tiered system that system- atically disadvantages undocumented immigrants (Stumpf, 2006). Individuals of Mexican heritage who are within federal prisons for offenses related to immigration increased in the years 1994 to 2010 from 2,074 to 17,720 (U.S. Department of Justice, 2013). In fact, arrests for offenses related to immigra- tion (e.g., undocumented entry, smuggling others) currently surpass all other offense types and account for 50% of arrests by the federal government (Gramlich & Bialik, 2017). The disproportionate numbers of offenses related to immigration worsened in spring 2018 when the U.S. Attorney General and Homeland Security Secretary enacted a policy of arrest and apprehension of all persons seeking to enter the country illegally, including individuals pre- senting themselves to immigration officials seeking asylum (Moore, 2018; Varghese et al. 701 Pham, 2018). This policy also led to the separation of children from their parents at the border, although this portion of the Homeland Security policy was contested by the American Civil Liberties Union in the summer of 2018, with the courts ruling that families could not be separated, and separated families needed to be reunified (see Thompson, 2019). Regarding the former policy of separating families, whose effects are still being felt, it is important to explore the relationship between immigration and correctional detainment. In the next section, we discuss detention as it pertains to undocumented immigrants and unaccompanied minors. Pertinent history, demographics, and legislation. A basic historical understanding of immigration laws and trends is foundational to understanding the current state of government conditions relevant to undocumented immigrants. The U.S. Immigration and Nationality Action of 1965 represented a move from national immigration quotas toward a preference for immigrants who pre- sented with desired skills and family reunification. This act eliminated the discriminatory quota system by removing national origin, including ancestry, to deny immigration to the United States. However, the Act retained restric- tions about the number of immigrants who could come from different regions of the world, with more stringent restrictions placed on countries in the East- ern hemisphere. The Act also created a seven-category preference system still used today, and gives priority for immigration to relatives of U.S. citizens and legally permanent residents as well as to professionals and other individuals with specialized skills. However, the Act placed the first immigration cap on individuals from Latin American countries, including Mexico, which resulted in what many consider an unachievable naturalization process for Latin American immigrants (Ewing, 2012). In 2017, the Pew Research Center reported that 10.5 million undocu- mented immigrants were living in the United States (Krogstad, Passel, & Cohn, 2019). Data on the nationality of undocumented immigrants indi- cate that the majority were Latinx individuals (Krogstad et al., 2019). Therefore, we will primarily explore issues relevant to Latinx undocu- mented immigrants. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 increased the number of undocumented immigrants detained and expanded the types of crimes for which those who are not citizens could be deported. The Immigration and Customs Enforcement agency was developed after September 11, 2001, in the Department of Homeland Security to enforce the Act and oversee increased detention and deportation activities. Recent federal (e.g., section 287 [g] agreements of the Illegal Immigration Reform and Immigrant Resposibility Act) and state legislation (e.g., in Arizona, 702 The Counseling Psychologist 47(5) California, Georgia) placed the enforcement of immigration policy in the hands of the local law enforcement (Hacker et al., 2011). Other state legisla- tion attempted to expand law enforcement personnel’s role in deportations. For example, California Proposition 187, which was later deemed unconsti- tutional and was overturned in federal court, required publicly funded health care facilities to not provide care but instead report to the government, any undocumented immigrants who sought care (Dwyer, 2004). This legislation contributed to xenophobia, an unwelcoming health care environment, and native-born citizens’ fears that trying to receive services may lead to deten- tion for undocumented family members (Hacker et al., 2011). Amidst the heightened xenophobic environment, recent federal immigrant programs such as the Criminal Alien Program and Secure Communities granted immi- gration officials authority to identify those who are not citizens in local jails and transfer them into federal immigration custody upon their release from jail (Chacón, 2012). This increased focus on detaining and deporting undocu- mented immigrants occurred despite research demonstrating that immigrants do not commit crimes at higher rates than those who are native-born (e.g., Chacón, 2012). Undocumented immigrant adults. On Thursday, June 7, 2018, it was announced that approximately 1,600 immigration detainees would be sent to federal prisons, marking the first time federal prisons would be used for such a large number of immigrants (Lynch & Cook, 2018). The policy to arrest and detain undocumented immigrants expanded the need for more prisons. The increase in “crimmigration” (Stumpf, 2006) policies over the last decade has significantly extended the jail stays of undocumented immigrants in loca- tions where Immigration and Customs Enforcement detainers are honored. Specifically, local law enforcement agencies increasingly comply with requests by Immigration and Customs Enforcement that ask for information about a person who is about to be released from custody, or ask that the local agency hold the detained person for a longer period of time to facilitate that person’s deportation, regardless of whether the undocumented immigrant has any criminal charges or convictions (Beckett & Evans, 2015). Addition- ally, these programs also led to a higher number of Latinx being detained, most of whom had not been convicted of serious crimes, had no prior crimi- nal records, and did “not pose serious security risks to the community” (Beckett & Evans, 2015, p. 253). Research suggests that undocumented immigrants are more likely to be incarcerated with longer sentences than citizens (see Iles & Adegun, 2018). Immigrants also experience negative stereotypes and stigmatization, which may further exacerbate unjust prac- tices in the justice system (APA, 2012). Varghese et al. 703 Undocumented, unaccompanied immigrant minors (UUIM). Between October 1, 2015, and August 31, 2016, the U.S. Customs and Border Patrol apprehended nearly 55,000 undocumented, unaccompanied immigrant minors at the bor- der of the southwest region of the United States (U.S. Customs and Border Protection, 2016). UUIM cross the border into the United States to afford themselves and their families a better future (Aldarondo & Becker, 2011; Becker Herbst et al., 2018). UUIM have reported taking a perilous journeys characterized by extreme hunger and thirst, physical injuries, illness, risk of physical harm, and poor treatment from immigration officials (Becker Herbst et al., 2018). Youth who enter the U.S. immigration system are held in cus- tody by the subsidiary agencies of the U.S. Department of Homeland Secu- rity. In addition, within the Immigration and Customs Enforcement agency, Enforcement and Removal Operations can apprehend youth who have not entered the system but are suspected of violating immigration law. Through either pathway, the youth is placed in the custody of the Department of Homeland Security. As a next step, most UUIM are transferred to the Office of Refugee Resettlement and placed into detention facilities to await their immigration process outcome (Menjívar & Perreira, 2019). While waiting, many youth are placed in short-term holding cells called las hieleras [the freezers] for up to two weeks (Becker Herbst et al., 2018; Jones & Podkul, 2012). These facilities may be so overcrowded that youth have to take turns lying down on the concrete floor. Most youth report having inadequate food and water, enduring frigid temperatures, and lacking access to bathing facilities. Many youth report experiencing excessive physical force, having belongings taken away, and being subjected to racial slurs (Jones & Podkul, 2012). Particularly vulnerable youth (e.g., under 13 years of age) are typically placed in foster care (Menjívar & Perreira, 2019). The remaining youth are placed across the country in shelters that are given the responisibility to com- ply with federal law in the care and supervision of immigrant children (National Immigrant Justice Center, 2013). Secure care shelters are used for youth with violent offenses or those who are a threat to self or others. Staff- secure care shelters are used for children with a history of nonviolent crimes or those who pose a risk to run away. Youth with no prior criminal justice involvement are placed in detention shelters, the least restrictive environment. Detention may last one day to over two years, but typically lasts two months (Byrne & Miller, 2012). Approximately 65% of youth within the Office of Refugee Resettlement are reunified with a sponsor, often a parent in the United States. When a parental sponsor is not possible, youth are released to a legal guardian, adult relative, or another approved individual. Youth may try to seek asylum, receive special immigrant juvenile status under visas for abused youth 704 The Counseling Psychologist 47(5) or victims of human trafficking, or voluntarily repatriate themselves (Byrne & Miller, 2012). Physical and Mental Health Consequences of Incarceration and Detention For at least some people, physical and mental health might be neglected once detained (Wilper et al., 2009). An analysis of national data of inmates in jails as well as state and federal prisons found that over 30% of those in prisons and over half of those in jails had not taken medication for mental health conditions upon incarceration (Wilper et al., 2009). For those with physical health symp- toms, over 20% of those in prison and over 35% of those in jails stopped taking medications for physical symptoms upon incarceration; after a serious physical injury, 7.7% of federal prisoners, 12% of state prisoners, and 24.7% of jail detainees did not see medical staff (Wilper et al., 2009). People who are incar- cerated are much more likely to be at risk of suicide than the general population (see Fazel, Hayes, Bartellas, Clerici, & Trustman, 2016). Prisons can be especially dangerous for vulnerable populations. For exam- ple, juveniles sentenced as adults and sent to adult facilities are at higher risk for sexual assault by an adult prisoner than those not sentenced to adult pris- ons (National Prison Rape Elimination Commission Report, 2009). Transgender individuals face higher rates of abuse in prison than their cisgen- der peers, and transgender People of Color report higher levels of abuse than their White counterparts; those incarcerated also had worse health than those who had not been incarcerated (Reisner et al., 2014). A systematic review of the influence of immigration policies on the status of undocumented immigrants found that these policies were associated with lower access to health services and an increase in depression and anxiety (Gonzales, Suárez-Orozco, & Dedios-Sanguineti, 2013). Legislative and pro- cedural changes related to undocumented immigrants may be associated with undocumented immigrants’ increased risk of violence in their homes and communities, as they are less likely to seek police protection when experi- encing domestic and community violence (APA, 2012; Menjívar, 2006). UUIM especially lack resources to ameliorate these stressors, given that seeking social support within the cultural community can be difficult as it may risk disclosing immigration status (Gonzales et al., 2013). From the literature provided thus far, it is clear that there is injustice in the justice system, particularly for People of Color. An unjust system, however, does not mean that those working within the system are unjust or unwilling to change. Further, given that some laws and policies may not have been developed primarily with racist intent (e.g., Stand Your Ground laws), at least Varghese et al. 705 some of the injustice may be the result of a lack of awareness that actions may be leading to divergent outcomes for People of Color. Justice reform is supported by a diverse array of people, including individuals who are racially diverse and from diverse political backgrounds. This can be seen by the pass- ing of the First Step Act of 2018 (Public Law No. 115-391) under the Trump Administration, which received bipartisan support and is an important step in justice reform. Therefore, in the next section we encourage counseling psy- chologists to work toward justice reform, including partnering with various justice system entities. Counseling Psychology Framework for Justice System Advocacy As mentioned previously in this document and illustrated in Table 1, counsel- ing psychologists are well-positioned to tackle the challenges of justice reform. Equipped with the knowledge and skills of the field, including research, advocacy, and the ability to teach, counseling psychologists can be part of generating knowledge, developing policy, and training others. This section describes practical ways counseling psychologists can help reform the justice system and describes some of the challenges as well. Generate Knowledge Counseling psychologists’ training in research methods and data analysis enables them to conduct robust research relevant to promoting justice in the justice system. Such research includes the root causes of offending behavior, ways to reduce biases in the justice system, strategies to enhance protective factors, and evidence-based methods to decrease societal problems associ- ated with justice system involvement. This section covers several potential research areas and challenges. Policy-relevant research. Research can form a basis for policy by studying the societal issues that policies are intended to address, as well as by investigating the assumptions underlying policy decisions. To enhance impact, counseling psychologists can conduct research with clearly delineated implications for policy. Relatedly, research can help fill the knowledge gaps about how to reduce bias in the courts. For example, a quasi-experimental study involving the death penalty found that providing simple juror instructions and ensuring that the jurors were a racially diverse group resulted in less bias against Black defendants (Shaked-Schroer, Costanzo, & Marcus-Newhall, 2008). Research can also bolster advocacy efforts by expanding the evidence base for humane 706 The Counseling Psychologist 47(5) policies. For example, preliminary research supports the benefits of alternative courts, such as mental health and drug courts, for People of Color. Access to such courts could promote treatment, which may be more beneficial rather than default sentencing such as detainment (Subramanian, Riley, & Mai, 2018). Evaluation of interventions, policies, and practices. Counseling psychologists can apply research skills to evaluate implementation of policies and prac- tices within the justice system. Research and evaluations by counseling psy- chologists could assess the effectiveness of programming as an empirical question. This could encourage the development of alternatives to detention that advance public safety and reduce recidivism. For example, research using a randomized design to evaluate the effectiveness of correctional pro- grams could elucidate which correctional programs work better than others and why. Given the lack of attention to culturally responsive programming (Bonta & Andrews, 2017), questions could focus on the development of culturally competent correctional programs. Counseling psychologists could also test the effectiveness of existing culture-specific programs in order to strengthen them and expeand their implementation. A starting place for this research may be the creation of partnerships between counseling psycholo- gists and correctional agencies, with an emphasis on analyzing existing data to evaluate the effectiveness of current programming for People of Color. Further, restorative justice programs are gaining more attention, but there is not enough evidence of their effectiveness. Thus, research in this area is also warranted. Investigate experiences of those affected by injustice. Counseling psycholo- gists’ competence in research methods associated with empowerment, such as community-based participatory research, aligns directly with these aims. Furthermore, extant counseling psychology research can provide insight into how sociopolitical forces influence the physical and mental health of oppressed groups. Given CRT’s emphasis on understanding perspectives of People of Color, qualitative research that explores the phenomenological experiences of People of Color can contribute meaningfully to justice reform. Counseling psychology research could help fill gaps in understanding the unique experi- ences of individuals in the justice system, such as the unique pathways of Girls of Color who interact with this system (Krisberg, 2018). Research may also focus on school personnel’s interactions with at-risk youth, with the aim of preventing juvenile justice system involvement. Counseling psychologists can provide valuable expertise to schools and form research partnerships that can be a fruitful way to combat structural issues for Varghese et al. 707 youth at risk of justice involvement. For example, partnerships between researchers and schools may address one of these structural issues, school dropout. In this effort, goals might include (a) identification of reasons stu- dents are not graduating (Jacobson, 2018), and (b) data collection with the aim of developing a program focused on academic success (University of Central Arkansas, 2018). Research has shown that school engagement, atten- dance (Blomberg, Bales, & Piquero, 2012; Li & Lerner, 2011), and academic success (Hoffman, Erickson, & Spence, 2013) are associated with less delin- quent behavior. Consistent with CRT’s approach to understanding the unique narratives of People of Color, qualitative research that allows for the phenomenological understanding of the experiences of transgender Women of Color who have been incarcerated can provide valuable insight into the development of poli- cies relevant to making correctional facilities safer for this population. Through accurate understanding of offending behavior from the perspective of offenders, policy makers and providers can more effectively implement systemic changes. As stipulated by the APA’s Multicultural guidelines: An ecological approach to context, identity, and intersectionality (2017), psy- chologists are to take a “strength-based approach when working with . . . groups, communities and organizations that seek to build resilience and decrease trauma within the sociocultural context” (p. 188). Study Public Perceptions and Attitudes That Perpetuate Injustice Counseling psychology expertise regarding measurement of explicit and implicit attitudes can be useful in gathering information regarding public per- ceptions of law enforcement and of people who are disproportionately disad- vantaged in the justice system. The National Institute of Justice (Klockars, Ivkovich, Harver, & Haberfeld, 2000) released a report on the blue code of silence, or the reluctance of police officers to report misconduct of fellow officers, and revealed that most police officers would not report less serious cases, but were more likely to report more serious cases. One way to reduce such codes of silence is to mandate agencies to report (Rothwell & Baldwin, 2007). Investigating police perceptions and attitudes toward the public may be one way to identify areas of potential bias that would benefit from inter- vention. In addition to quantitative research, public perception surveys require varied research methods and paradigms to avoid reinforcing the sta- tus quo. For example, studying police perceptions of Black community mem- bers may require an ethnographic approach to reduce participants’ tendency to respond in a socially desirable manner. Observing behavior in the field 708 The Counseling Psychologist 47(5) allows for the triangulation of data. Furthermore, the examination of how racially marginalized community members perceive police presence in their neighborhoods may require a critical research paradigm to represent the unspoken power dynamics inherent in police–community interactions. Another approach to studying perceptions aligns with the strengths-based value of counseling psychology. Research that invites community members to describe an ideal relationship between law enforcement and their commu- nity rightly assumes that members of marginalized communities offer a cru- cial perspective upon which to evaluate policies and practices that may be most effective. These findings can be used to draft recommendations for local law enforcement agencies. Generating Knowledge: Challenges and Strategies There are numerous challenges counseling psychologists may encounter when conducting research and evaluation related to the justice system. First, many counseling psychologists may not have considered ways in which their research interests and skills are relevant to the justice system. Ideally, the ideas presented in this article may help develop or apply a research program to address relevant questions and concerns. A significant strength is that counseling psychologists are trained in a variety of research designs and ana- lytical procedures that are quite relevant to answer questions involving the justice system; therefore, preparation of counseling psychologists in commu- nity-based participatory research, qualitative research, program evaluation, survey research, and experimental design are all relevant. Considering the needs of the community and developing research questions that can intersect with our individual research programs, may be fruitful to the community, advance our research, and promote systemic change—a powerful combina- tion. Beyond the commitment and skills to conduct research relevant to the justice system, funding may be needed to carry out these studies. Fortunately, there are funding agencies that support this research, such as the National Institute of Justice. One considerable research challenge is to access the systems, individuals, and communities of interest. Gaining inroads in law enforcement agencies to conduct research that may represent these agencies in an accurate, but perhaps unfavorable, light is difficult. Establishing relationships that are mutually ben- eficial, such as being willing to provide a service (e.g., training) for law enforce- ment officers in exchange for access, may be one way to open the door for ethical, critical research. Finally, marginalized communities are often the focus of research studies in a way that does not honor their worldviews or provide any benefits. Similar to the recommendation for relationship building with law Varghese et al. 709 enforcement, establishing ongoing connections with marginalized communi- ties and providing valuable services (e.g., outreach, consultation, advocacy) to them may be one way to enhance recruitment for public perceptions research. Interpret and Disseminate Knowledge Counseling psychologists are well-positioned to interpret research and to dis- seminate knowledge gained through systematic inquiry. They may use their competence in education and training to influence the justice system infra- structure through a number of mechanisms, described next. Share knowledge with policy makers and courts. Counseling psychologists can share knowledge through various mechanisms, including lobbying and writ- ing or supporting amicus briefs. Central to CRT, counseling psychologists can directly engage with the public and policy makers by educating them about institutional racism and bias within the laws and courts, by training justice system personnel to prevent and reduce the use of force, and by pro- moting cultural competence. Counseling psychologists may also engage in advocacy through formal networks such as the Society of Counseling Psy- chology and APA, focusing on effective collaborative efforts to change laws and policies. As noted, the United States has enacted a policy of separating children from their families in the name of “deterrence” at border crossings (U.S. Department of State, 2018). In response, numerous organizations, including the Society of Counseling Psychology, joined together in the devel- opment of an additional statement that further underscored the pernicious health effects of this policy on children and families (“Joint Public Statement by Psychology Groups on U.S. Immigration Policies and Practices”, 2018). Such collaborative efforts may contribute to policy change. Considering the effectiveness of multisystemic interventions in prevent- ing and reducing juvenile justice involvement (see Bartol & Bartol, 2017), transforming oppressive systems in schools and neighborhoods is critical, as is advocating for more financial, educational, and health care resources that enable parents to promote the well-being of children and families. For exam- ple, counseling psychologists can advocate for policies that provide vouchers for families in impoverished and unsafe neighborhoods, such as neighbor- hoods with structural issues such as lead exposure, to connect families with better housing (Robinson et al., 2015). Such transformations would allow for greater contextual supports, including prosocial peer groups, which can serve as a protective factor against juvenile justice involvement for boys and girls (Bartol & Bartol, 2017; Bonta & Andrews, 2017). 710 The Counseling Psychologist 47(5) Counseling psychologists can work at state and federal levels to promote policies that ameliorate disparities in detention and incarceration. One inno- vative policy in the state of Iowa requires “Minority Impact Statements” (Bonnie et al., 2013) of every organization that applies for a state grant, and requires applicants to enact various safeguards to prevent bias and discrimi- nation. Specifically, the state requires a discussion of (a) how the program will disproportionately influence minorities; (b) reasons for why this dispro- portionate impact is necessary; and (c) “evidence of consultation of represen- tatives of minority persons in cases where a policy or program has an identifiable impact on minority persons in this state” (“Grant Applications — Minority Impact Statements,” 2018, p.1). Finally, given that community-based interventions are the most effective in reducing recidivism according to best practices in corrections (Bonta & Andrews, 2017), counseling psychologists can also play a key role in advo- cating for laws and policies that employ community-based methods of reha- bilitation that reduce recidivism. At the juvenile level, such policies resulted in detention center closures, including the reduction of Latinx populations detained in juvenile detention centers (Bonnie et al., 2013). Policies advocat- ing for community-based programs may focus on specific subpopulations, such as youth who would benefit from additional mental health care or basic resources instead of placement in a juvenile detention center (Bonnie et al., 2013). For example, Conneticut passed a law in 2007 to stop detention for status offenders (e.g., runaways) and instead provide them with alternative treatments; the law also prohibits individuals younger than 18 to be tried as adults (Tow Youth Justice Institute, 2017). These reforms have led to decreases in recidivism (Tow Youth Justice Institute, 2017). Counseling psy- chologists can join advisory committees and state and local task forces to provide guidance in matters such as these. Professional Development and Consultation with Justice System Employees Counseling psychologists can disseminate accurate information, counteract psychological barriers to justice, and cultivate skills among justice system employees. Those who work in or with the justice system may benefit from increased knowledge about bias. Counseling psychologists with requisite expertise could provide training to judges, jurors, and attorneys, on relevant topics such as the nature of implicit bias, ways to overcome implicit bias, and ways to optimize fairness in jury decision-making. Given the often uncon- scious nature of bias, efforts to counteract biases that may affect sentencing Varghese et al. 711 are warranted. Some possible solutions include auditing of court decisions, teaching mindfulness meditation to court personnel, and providing evidence that does not agree with preconceived notions (Wistrich & Rachlinski, 2017). Also, given the aforementioned findings of bias (Levinson et al., 2017), judges might consider how they might sentence a person if that person were from a different background (Wistrich & Rachlinski, 2017). For example, when sentencing a Black male defendant, judges might consider how the sentence might differ if the defendant were White. This may be important for both White and non-White judges, as racism can be directed toward other groups or internalized toward one’s own group (David, 2013). To the extent that the life circumstances of those being sentenced differ from the judges’ experiences, such perspective taking could reduce bias experienced by mar- ginalized communities. These efforts would dovetail with counseling psy- chologists’ competence in cultural issues, including their expertise in the development of self-awareness of biases, and knowledge and skills in work- ing with diverse populations. Diversity training for law enforcement. Because disproportionate use of force and other biased behaviors tend to be directed against certain minority popu- lations (e.g., Swaine & McCarthy, 2017), an important mechanism for improving the justice system is the preparation of law enforcement personnel to interact fairly with marginalized people. Promising work in the arenas of implicit bias and fair and impartial policing advance efforts to curb law enforcement personnel’s role in escalation of conflict and use of deadly force (Fridell, 2017). Diversity training for law enforcement personnel has often focused on the development of concrete behaviors such as intercultural com- munication (e.g., Cornett-DeVito & McGlone, 2000) and affirming tactics (e.g., Israel et al., 2016). Intercultural communication includes skills when working with diverse populations, including expression of empathy and the ability to adapt to others’ needs (Cornett-DeVito & McGLone, 2000). Across the varied training content, trainers must understand and attend to the context of law enforcement personnel’s experiences, concerns, and organizational culture, as well as account for local and national attention on law enforce- ment personnel’s treatment of marginalized individuals. Law enforcement officers may further benefit by understanding interac- tions with marginalized communities in the context of historical and societal oppression. They need to earn trust and respect from Communities of Color, appreciating that the historical role of law enforcement in upholding laws has been used to enforce enslavement, Jim Crow laws, internment, and anti- immigration agendas. Even Officers of Color may still be viewed suspi- ciously in their work, although some research suggests diverse police forces are less likely to use deadly force (McElvain & Kposowa, 2008). 712 The Counseling Psychologist 47(5) CRT and theories of internalized racism (Jones, 2000) suggest people across all racial backgrounds are socialized to view People of Color as having less worth and power than Whites. Thus, officers trained to enforce policies that enact paternalistic surveillance of People of Color may even subcon- sciously perceive Whites as less likely to commit crimes and more likely to have the power to successfully hold People of Color accountable. Therefore, specific training that requires officers to discuss and process prejudiced mes- sages and stereotypes can make visible biased assumptions, and enable offi- cers to replace them. These stereotypes could be replaced with messages about community strengths, thus making it less likely for officers to act more violently toward People of Color (James, Fridell, & Straub, 2016). Law enforcement officers will become engaged through the provision of training that they perceive as relevant and effective (Coderoni, 2002). Recommended approaches for diversity training include the use of simula- tions, group exercises and problem solving scenarios, case studies, and mini- lectures; and the provision of job-relevant information (Birzer, 1999; Cornett-DeVito & McGlone, 2000). It may be particularly effective to have officers serve as trainers using a team-teach approach, with trainers repre- senting different organizations (Hennessy, 2001). Rich opportunities exist for counseling psychologists to partner with the courts for training. Counseling psychologists can train those who work in corrections on strategies to decrease bias in assessment and placement. For example, parole and probation officers can be taught that some assessment questions can be culturally biased and that not adhering to some majority cultural norms does not necessarily indicate deviance. Helping parole and probation officers develop cultural competence skills may enhance rapport with juveniles in corrections and lead to better outcomes. For example, a study of 109 people on parole found that parolees who viewed their parole officers as caring and trustworthy were less likely to be rearrested (Kennealy, Skeem, Manchak, & Louden, 2012). Empower Communities With Knowledge Advocacy for justice system reform can occur at various levels and at differ- ent points in the process. In the same way that legal clinics in law schools offer pro bono representation and trial preparation, counseling psychology graduate training clinics can offer counseling and preparation for managing the challenges of dealing with members of disenfranchised groups in the criminal justice system. Advocacy can occur through partnerships with local NGOs and local government as well as with affiliations with local offices of national organizations. For example, the Immigrant Children and Legal Services Partnership in South Florida, an organization with which counseling Varghese et al. 713 psychology faculty and students have partnered, employs “an integrated, child-centered model of expert legal counsel and advocacy, trauma-oriented mental health services, resilience-building youth development programming, and professional development of staff caring for UUIMs in local detention facilities” (Aldarondo & Becker, 2011, p. 2010). Counseling psychologists could advocate for each of those dimensions. The more diverse the coalition representing multiple constituents, the greater the credibility to support the change (“Community Toolbox: Learning a Skill”, 2018). Challenges for counseling psychologists will be to influence outcomes through advocacy based on empirical support and on implementing professional values, with- out taking on a deliberately partisan approach. For People of Color with a criminal background, obtaining job qualifica- tions could reduce some employment barriers (e.g., Varghese, Hardin, & Bauer, 2009). Davis et al. (2013) of the RAND Corporation found that par- ticipation in prison education programs decreased probability of recidivating by 43%. Access to a college education can further increase job acquisition, but one barrier to college education is a 1994 federal law that denies people who are incarcerated from receiving Pell Grants (Olivas & Jones, 2017). Counseling psychologists could advocate for reinstating access to Pell Grants and other sources of educational funding for those who are imprisoned. After release, this education can allow these same individuals to give back to their communities in various ways, including their payment of taxes as a result of employment. Inform the Public Counseling psychologists are uniquely prepared to engage in leadership roles given their training in understanding human behavior, ability to work with diverse populations, and competence to listen and build rapport. Serving in these capacities can situate counseling psychologists in a position where they can serve as a potent force toward transforming unjust laws and policies (Varghese et al., 2017). Nationally, counseling psychologists could provide leadership in diverse settings, such as holding positions in public policy orga- nizations focused on changing unjust policies. Counseling psychologists could contribute to these entities by harnessing their training in research with diverse and marginalized communities, their ability to critically evaluate information, and their social-justice focus to inform public policy and influ- ence national discourse. For example, counseling psychologists can influence the conversation surrounding immigration policy by providing the public accurate information about Latinx immigration, thereby dispelling xenopho- bic assumptions and stereotypes (see APA, 2012). Specifically, psychologists 714 The Counseling Psychologist 47(5) could provide evidence that undocumented immigrants of Latinx origin often immigrate to the United States to flee violence, obtain an education, become financially stable, and support others (Aldarondo & Becker, 2011). Such ini- tiatives can provide evidence to promote an authentic understanding of the immigrant experience and promote empathy. Counseling psychologists could also use their voice to inform the public regarding the connection between macrolevel and microlevel implications of inequitable treatment (Toporek & Daniels, 2018). For example, commercial sexual exploitation is inextricably linked to issues of social injustice (APA, 2014). The detrimental impact of structural inequality must be acknowledged in order to gain a deeper and more accurate understanding of commercial sexual exploitation. Counseling psychologists can aid policy makers and pro- viders in more effectively responding to the needs of CSEC by attending to systemic power dynamics that further disenfranchise vulnerable youth. Such exposure may demonstrate that dehumanizing methods (e.g., treating victim- ized youth as delinquent) run counter to the espoused U.S. values of justice, equity, and human rights. Interpreting and Disseminating Knowledge: Challenges and Strategies Counseling psychologists may lack the time, resources, or knowledge to effectively disseminate policy-relevant research. Whereas counseling psy- chologists may be familiar with preparation of research findings for profes- sional journals and conference presentations, they may be less equipped to write white papers, craft op-ed articles, collaborate with community mem- bers, and provide training for nonpsychologists. Advocacy training can help counseling psychologists increase their effec- tiveness in sharing knowledge with policy makers. A focus on competencies related to therapy may limit training programs’ inclusion of didactic and experiential training on advocacy and the legal system, as the latter is not a requirement of profession-wide competency in the APA Standards of Accreditation (APA Commission on Accreditation, 2018). Doctoral programs may work to incorporate these topics into their coursework or practica; how- ever, it requires effort to structure and sequence advocacy within required competencies as outlined by the Standards of Accreditation. To address these gaps, the APA’s Legislative Issues and Advocacy Training Tools website pro- vides resources on effective advocacy strategies with webinars and training modules (APA, 2018b). Further, the Society of Counseling Psychology, Society for Community Research and Action, Society for the Psychology of Women, and Society for the Psychological Study of Culture, Ethnicity and Varghese et al. 715 Race collaborated to create an additional training tool kit titled Community Advocacy: Training Psychologists to Act Locally that presents different strat- egies to change policy at various levels of government (APA, 2018a). Another challenge to effectively engaging in advocacy is the capacity to devote sufficient time and energy to be an effective advocate, while balanc- ing other professional roles. It takes time and effort to develop trusting rela- tionships with community members and inform the public, and patience to see the results. Finally, a challenge is that the effectiveness of training can be limited. According to the Federal Judicial Center, research has shown that implicit bias training has helped reduce implicit preferences a person has toward a particular group, particularly preference for Whites over Blacks (Federal Judicial Center, 2019). However, they report that the effects of the training may last for just a couple of weeks, and may not be long-term. This indicates that training may need to be continuous and not simply a one-time event. Take Action Based on Evidence, Skills, and Values Policy-making. Counseling psychologists can play a role in influencing public policy. Participating in APA Congressional Fellowships or other national fel- lowships can enable counseling psychologists to engage in policy-making. Further, counseling psychologists can run for various local, state, and national offices. Psychologists who previously worked in academia have been elected to the U.S. House of Representatives (e.g., Alan Lowenthal, Judy Chu), and psychologists with law degrees have served as judges (e.g., Michael O. Miller; see Skaggs, 2019). Even nonelected positions can help make policy. Among the most coura- geous acts of leadership are nonviolent protests and civil disobedience to unjust laws, often leading to changes in these laws. Such leadership has been the mark of transformational leaders such as Gandhi and Martin Luther King, Jr., who, even in the face of brutal injustice, led nonviolent protests by refusing to comply with unjust laws. Counseling psychologists’ core values of social justice and diversity allow for such a transformational leadership style (Varghese et al., 2017), particularly in light of immoral, unjust, and unconscio- nable laws and policies. Today, nonviolent resistance might occur in the form of outreach to undocumented individuals and the provision of mental health care or sanctuary (Fournier, 2018). Modern examples of civil disobedience include German pilots who refused to deport asylum seekers (Fournier, 2018) and the action of former Attorney General Sally Yates who refused to support the travel ban against individuals from Muslim countries, detailing this ban’s violation of the U.S. Department of Justice’s values (Chakraborly, 2018). 716 The Counseling Psychologist 47(5) Protests of psychologists’ participation in torture reflects leadership of coun- seling psychologists in taking a stand for their principles by questioning authority and refusing to compromise with policies that conflict with profes- sional values regardless of possible deleterious consequences. Advance Implementation of Evidence-Based Practice Consultation. The training of counseling psychologists includes preparation for serving as consultants to legal and legislative systems, governmental entities, and human service organizations. In these consulting roles, counseling psy- chologists can advance development and implementation of evidence-based programs to reduce disparities. Therefore, to promote procedural and distribu- tive justice, counseling psychologists can partner with social entities such as schools, probation and parole agencies, judges, juvenile detention centers, and immigration detention centers, to make changes within these agencies. Counseling psychologists can support school staff in disrupting the school- to-prison pipeline. For example, one university partnership between a doc- toral program in school psychology and a school district is focused on prevention and intervention, such that middle school students have a greater likelihood of positive outcomes in academics, behavior, and social and emo- tional development (University of Central Arkansas, 2018)—factors associ- ated with lower delinquent behavior (Li & Lerner, 2011). Such partnerships may address risk factors by helping staff engage in positive strategies to change behavior, provide an emotional regulation curriculum, and create a supportive and trusting environment that mitigates individual and societal risk (Bonta & Andrews, 2017). Counseling psychologists can advocate for appropriate programs for People of Color, including women and girls, as well as transgender youth and adults. This includes ending the detention of girls who run away (Krisberg, 2018) and advocating for the provision of alternative interventions relevant to gender. Detention centers, prisons, and U.S. community corrections need to improve their treatment of minority populations (National Center for Transgender Equality, 2018). For example, policies continue to be erratic towards gender minorities, with the current policy now indicating that bio- logical sex will be used to initially determine where the transgender person will be assigned (U.S. DOJ Federal Bureau of Prisons, 2018). Although U.S. DOJ Federal Bureau of Prisons (2018) has indicated that it will work to miti- gate risks, the transgender community had noted that this will increase the risk of sexual assault of transgender persons in prison (National Center for Transgender Equality, 2018). Further, racial minorities with some of the low- est academic and work achievements appear to be some of the least likely to Varghese et al. 717 obtain training and work experience in prisons (Rampey et al., 2016). Finally, in a study using surveys and interviews with 65 professionals and staff in the juvenile system, 63% reported that they were not aware of diversion pro- grams culturally competent to LGBT youth (Majd, Marksamer, & Reyes, 2009). Yet, programming tailored to the needs of diverse groups can be help- ful in rehabilitative efforts. For example, culturally competent interventions for the indigenous Maori of New Zealand, such as involving family and Maori cultural values, are used in reentry efforts (Richards-Ward & McDaniel, 2007). Such interventions are in line with correctional best-practice princi- ples of responsivity to individual differences (Bonta & Andrews, 2017). Evidence-based practice. Counseling psychologists can advocate for courts to implement evidence-based practices, such as effectively conducting risk assessments to place youth in appropriate settings. This would be important to ensure that high-risk youth receive the most intensive services, such as detention, but low risk youth do not receive such intensive services, which might be harmful to them (Bonta & Andrews, 2017). Arkansas requires all juvenile courts to use risk assessments in order to place only those youth who are at high risk in a detention center, consistent with evidence-based practices that include reducing detention of low-risk youth (Arkansas Act 189, 2019). One juvenile court judge noted that a court partnership with universities cre- ated alternative programs instead of detention for lower risk youth (KATV News, 2017). Further, counseling psychologists could work with the courts to encourage partnerships with schools to provide mediation for troubled Youth of Color. For example, juvenile courts in one county partnered with a school district to have a mediator intervene in discipline cases in schools, to ensure that poor behavioral issues do not escalate toward arrest and court referrals (personal communication, Attorney Chastity Scifres, October 12, 2018). Crisis intervention teams are another practice for which counseling psy- chologists can advocate and help implement. In several recent high-profile killings of People of Color by police and jail personnel, the victims had a mental health diagnosis. Crisis intervention is specifically designated as a critical training need, and mental health response training is often mandated (The President’s Task Force on 21st Century Policing, 2015). The Memphis model of crisis intervention team (CIT) training is perhaps the most success- ful use of psychologists and other mental health workers in law enforcement officer’s training (Compton, Bahora, Watson, & Oliva, 2008, Heilbrun et al., 2012). In the 40-hour training sequences for CIT, officers partner with local mental health and substance abuse treatment personnel in the local commu- nity to simulate situations in which officers respond to a call when a mental health crisis is occurring. 718 The Counseling Psychologist 47(5) Counseling psychologists may identify and advocate for effective ways to address trauma experienced by law enforcement personnel. Police officers suffer from accumulated on-the-job traumatic stress and may develop classic symptoms of PTSD and depression. One study of police officers found that 16% of officers had depression, but the prevalence of PTSD was over 30% (Darensburg et al., 2006). Psychologists have worked closely with law enforcement agencies to provide officers with health-promoting activities such as wellness programs and critical incident debriefing (Chism, 2016). There are some systemic mechanisms that can support counseling psy- chologists’ efforts to advocate for evidence-based practices. One such tool is consent agreements. Almost all the consent decrees (i.e., agreements in the last 10 years between the U.S. DOJ and a local city or district to reform and monitor a law enforcement agency) under the oversight of the federal court have included provisions for robust increases in the training and oversight of training for police officers (e.g., U.S. v. Cleveland, 2015). Some agreements specifically require law enforcement personnel to implement policies, train- ing, and accountability systems related to use of force, deescalation tech- niques, and strategies for working with individuals with a disability (e.g., U.S. v. Cleveland, 2015). Many of these provisions contain specific language for the inclusion of psychologists in the design, instruction, and oversight of new recruit training, as well as in-service training at least at the patrol-officer level. The consent agreements offer opportunities to become involved in community oversight of police agencies, but they have stirred up resentment among police union officials who claim that this will hinder their ability to do their job (Miletech, 2019). CRT anticipates this and warns against becoming involved while not attending to the efforts to resist accountability. Counseling psychology’s attention to strengths-based approaches can help to advocate for law enforcement personnel’s training in diversity issues, given potential resistance from officers. Law enforcement personnel may be resistant to diversity training if they perceive this training is a consequence of wrongdoing; however, acknowledging existing culturally informed policies and tactics, while acknowledging what they are already doing well, may help officers be more open to advancing their understanding of marginalized groups (Israel et al., 2017). Targeted Community Prevention and Intervention Community collaboration. Counseling psychologists can promote distribu- tive and procedural justice in equitable treatment by law enforcement per- sonnel by establishing long-term partnerships with communities that are under high surveillance and overrepresented in negative police encounters. Varghese et al. 719 Connecting with places of worship, community organizations, and disen- franchised community members, positions law enforcement officers to dismantle stereotypical biases through positive engagement. Additionally, counseling psychologists are well-suited to facilitate the process of recruit- ing community members to participate in training police academy mem- bers, staff and trainees, to provide community-aware, culturally relevant strategies for systemic change. Counseling psychologists can utilize their skills to develop effective inter- ventions to reduce and prevent behaviors that lead to the imposition of fines and fees. Such interventions might include processes to support individuals’ successful compliance with sentencing (e.g., sending postcards with remind- ers about court dates to prevent the accrual of further fines; see Council of Economic Advisors Brief, 2015). This category of preventive public health approaches and initiatives to reduce recidivism can comprise another element of a research agenda. Community trauma. Just as law enforcement officers experience trauma, mar- ginalized communities who interact with them also experience trauma. Sys- temic heterosexism, ethnocentrism, and racism intersect with the traumas imposed on marginalized communities from law enforcement. These trau- matic experiences result in race-based stress (Carter, 2007), minority stress (Meyer, 2003), or other identity-specific distress. Over time, a lack of com- bined systemic and individual intervention can lead to accumulated race- based stress (Clark, Anderson, Clark, & Williams, 1999) or racial trauma. Counseling psychologists can work in partnership with communities to address the impact of trauma, as well as to work collaboratively with law enforcement personnel to understand how community trauma may affect people’s perceptions of, and interactions with, law enforcement personnel. Across the United States, communities are developing community crisis response teams modeled on the National Organization for Victim Assis- tance’s (NOVA) Community Crisis Response training (NOVA, 2018). Mem- bers of the team are a diverse group of community volunteers who commit to responding to crises in their wider community (NOVA, 2018). Most major cities have some form of crisis response team that serves to provide healing to communities after a disaster. Crisis Response Teams often meet with orga- nizations such as the Red Cross and the families that have been affected by the crisis. Currently, such teams are not standardized across communities and some argue for more standardization. After the recent shooting of a homeless man by the Los Angeles Police Department, psychologist Vickie Mays was one of the Los Angeles Mayor’s crisis team members to respond (personal communication, August 2018). 720 The Counseling Psychologist 47(5) Hargons et al. (2017) detailed strategies used by some counseling psy- chologists for actively intervening in various marginalized communities at the systemic, institutional, interpersonal, and individual levels. For example, after the shooting of Michael Brown in Ferguson, Missouri, counseling psy- chologist Jameca Falconer provided crisis intervention to community mem- bers experiencing distress (Hargons et al., 2017). The authors made additional recommendations about ways that counseling psychologists may seek to get involved. An important component of better mental health and behavioral outcomes is the ability to be a contributing member of society. Counseling psychologists could assist those on probation or parole find meaningful com- munity service activities to fulfill probation requirements and to develop pro- social attitudes. Helping the community can be difficult if one is not a member of the com- munity and is seen as an outsider. Communities need to trust the person pro- posing to help. Consequently, it is important for counseling psychologists to establish their credibility within a community. Their planning for such work must include preparation time as well as relationship-building activities such as pro bono efforts and community preparedness activities. This requires developing relationships and time. Counseling psychologists who are inter- ested in this work must be prepared to invest the substantial time and effort necessary to do it effectively. Further, helping communities heal from trauma is not easy work, and if counseling psychologists do not practice self-care, compassion fatigue and burnout can result. Self-care is essential. Some of these barriers can be overcome by working with a team of collaborators and partners and not letting the work consume a person. A primary tenet in crisis response is that it is work that cannot be reasonably undertaken alone. Developing an effective relationship with other crisis team members, perhaps even other psychologists, may be crucial to managing these requirements. Universal Prevention and Intervention Counseling psychologists can advocate for programs to help diverse popula- tions cope with adversity and flourish in difficult circumstances. Community factors such as violence, poverty, lack of support in school, and neglect can contribute to the likelihood of interacting with the justice system (Bartol & Bartol, 2017; Bonnie, Johnson, Chemers, & Schuck, 2013; Krivo & Peterson, 1996). Minors who exchange sex for basic needs or drugs are often runaway and homeless youth; children who have been sexually, physically, or emo- tionally abused; and youth who are unable to find legitimate employment due to a lack of opportunity or education (Curtis et al., 2008). Counseling psy- chologists can advocate for systemic change to support the well-being of Varghese et al. 721 youth and their communities by using information gathered through research initiatives to educate policy makers, law enforcement personnel, and school administrators to prevent the further exploitation of youth. Similarly, coun- seling psychologists could implement programs to ensure that families in marginalized communities receive additional support, because by strengthen- ing the family systems of high-risk youth, their vulnerabilities may be miti- gated, decreasing the likelihood that youth will engage with the justice system and increasing the capacity of families to respond effectively to adverse situ- ations. Counseling psychologists can also provide educators and school administrators with training in order to provide students with culturally responsive and trauma-sensitive classrooms. Training educators in evidence- based interventions, including education as a pathway to reducing recidivism, can help youth graduate from school, develop more effective coping skills, and prevent them from further involvement in the justice system. Taking Action Based on Evidence, Skills, and Values: Challenges and Strategies Taking direct action to advance change is challenging, whether making pol- icy, consulting, or intervening within community or public spheres. In each of these arenas, preparation, experience, credibility, and relationships can promote success. Preparation for making policy can come in the form of psychology-spe- cific experiences such as the APA Congressional Fellowships, as well as through participation in programs that are open to nonpsychologists, such as Empowered to Run. It is likely easier to change policy at local and state lev- els than at the federal level; therefore, getting involved in policies within a city and then moving to state or federal levels would be a realistic strategy. Examples of local offices are the city council, the local school board, or appointed boards and commissions. For example, one way that counseling psychologists can influence policy within correctional agencies is to be appointed to a correctional board. In terms of consultation, not all courts or correctional entities may be open to working with outsiders. Therefore, it will be important to develop positive professional relationships within these systems. Relationships take time to develop, and reforming the justice system from a punitive to a rehabilitative model is a worthy endeavor to invest such time. People’s hearts and minds have to change to see reforms, and counseling psychologists are aware that change happens in the context of building relationships with people to earn their trust. 722 The Counseling Psychologist 47(5) Advocating for culturally tailored correctional programs is not easy when social or political forces are encouraging the creation of prisons for profit to mitigate budget shortages in state governments (Hillman, 2019). States with budget deficits may be tempted to accept millions of dollars from companies that operate private prisons (ACLU of Montana, 2017). The dissemination of knowledge and engagement in advocacy are key strategies to overcome such climates. Research and evidence that show the effectiveness of cultur- ally tailored interventions in enhancing public safety as well as their cost- effectiveness can be helpful in advocating for culturally tailored correctional programs. However, community action may be hindered by community members’ systemic distrust due to unjust practices. Without access to these communi- ties, advocates may merely speak for diverse people rather than amplifying their marginalized voices in the service of justice. Therefore, it is important for counseling psychologists to take the time and effort necessary to develop trust and strong collaborative relationships with individuals in marginalized communities. There is a considerable body of literature on community-based participatory research that offers guidance and strategies for relationship development. It is important to have realistic expectations for outcomes of direct action. Implementing evidence-based practices is easier said than done. Counseling psychologists may face many barriers associated with attempting to imple- ment change within large bureaucratic systems. It is inherent in the psychol- ogy of people that a natural tendency exists to resist change. The uncertainty related to whether positive outcomes will or will not be achieved can be chal- lenging for mental health professionals. However, working with a team of collaborators and partners may increase the effectiveness of direct action by drawing on a range of skill sets and multiple circles of influence. Vision: How Would These Actions Promote Justice in the Justice System? Consistent with CRT’s goal of social transformation, the primary goal of systems reform in laws and courts centers on reforming those laws that differentially target and punish People of Color and the poor, including individuals with intersecting marginalized identities. A reformed justice system would change laws and policies that demonstrate blatant disregard for less privileged individuals and their families. A reformed justice sys- tem would treat people equitably in court without showing partiality to the privileged. A reformed court system would stop charging fees and instead Varghese et al. 723 focus on prevention, rehabilitation, and community well-being. Counseling psychologists can help to achieve these goals by advocating for equitable laws and policies, providing research expertise (e.g., demonstrating evi- dence for the effectiveness of preventive and rehabilitative programs), providing education and training for the courts to alleviate bias, and serv- ing in leadership roles, including those roles through which they can help change unjust policies. Goals of justice system reform in law enforcement include nonbiased policing that avoids the violent deaths of People of Color or intersecting identities of disability, gender normativity, and language diversity, espe- cially during and after routine investigative encounters. Reform would result in well-trained, carefully monitored, and effectively supervised law enforcement officers who are able to accurately assess and manage encoun- ters, preventing unnecessary escalation of force. Reform would result in a mentally healthy law enforcement workforce that uses evidence-informed strategies to appropriately and compassionately respond to situations. Finally, law enforcement personnel would earn the trust of diverse com- munities by demonstrating nonbiased policing and transparent examination of all encounters that result in injury or death to community members or law enforcement (The President’s Task Force on 21st Century Policing, 2015). In addition, beyond reform, more progressive approaches to address- ing issues in the justice system may include dismantling the prison indus- trial complex and investing energy and resources in the development of preventive and rehabilitative programs to improve public safety. Counseling psychologists can help achieve these goals by applying their expertise in mental health, diversity, and community collaboration to the training and engagement of law enforcement personnel. Consistent with CRT’s focus on changing structural inequalities and coun- seling psychology’s perspectives on prevention, justice reform could change the very structural inequities that lead to arrest and detention—including poverty, poor nutrition, school discipline, low quality educational experi- ences, and poor housing. For Youth of Color, this would mean distributive and procedural justice in the form of being treated with equity in schools and not be subjected to harsher punishment than their White peers. For adults who are incarcerated, effective reform would include the use of evidence- informed best practices in rehabilitation. A reformed system would not sup- port exploitation and revictimization of People of Color, and would address the needs of especially vulnerable populations such as children and undocu- mented immigrants. Finally, a reformed system would incorporate initiatives to ensure those who leave the correctional system have the requisite skills for successful reentry into society. 724 The Counseling Psychologist 47(5) Conclusion Our goal for justice system reform is to have an equitable system that upholds the human rights and dignity of people regardless of background, and is con- sistent with U.S. ideals, as eloquently stated at the conclusion of the U.S. Pledge of Allegiance, “liberty and justice for all” (Independence Hall Association, 1995). This is an ideal yet to be realized—and many individuals’ fundamental rights are still violated in the name of public safety. CRT would have us ask, “Public safety for whom?” Evidence is mounting that public safety increases with equitable justice; in turn, equitable justice relies on enacting rehabilitation strategies rather than overly harsh punishments (see Tow Youth Justice Institute, 2017). Justice reform requires the very best of counseling psychology skills such as advocacy, research expertise, and relationship-building coupled with the highest ideals of the profession, including diversity and social justice. Together, counseling psychologists can be a powerful force for the transfor- mation of the justice system. In this paper, we provided actionable strategies to transform unjust laws, biased courts, racist law enforcement, and dispro- portionately harsh detention. We believe counseling psychologists should use their expertise to achieve these reforms, a foremost human rights issue. Declaration of Conflicting Interests The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The authors received no financial support for the research, authorship, and/or publica- tion of this article. ORCID iD Femina P. Varghese https://orcid.org/0000-0001-6897-3173 References Ackermann, N., Goodman, M. S., Gilbert, K., Arroyo-Johnson, C., & Pagano, M. (2015). Race, law, and health: Examination of ‘Stand Your Ground’ and defendant convictions in Florida. Social Science & Medicine, 142, 194–201. doi:10.1016/j.socscimed.2015.08.012 Aldarondo, E., & Becker, R. (2011). Promoting the well-being of unaccompanied immigrant minors. In L. Buki, & L. Piedra (Eds.), Creating infrastructures for Latino mental health (pp. 195–214). New York, NY: Springer. doi:10.1007/978- 1-4419-9452-3 https://orcid.org/0000-0001-6897-3173 Varghese et al. 725 Altmaier, E. M., & Hansen, J.-I. C. (2012). The Oxford handbook of counseling psy- chology. New York, NY: Oxford University Press. American Civil Liberties Union of Montana. (2017, October). Statement on CoreCivic’s inducement to the state of Montana. Retrieved from https://www .aclumontana.org/en/news/statement-corecivics-inducement-state-montana American Civil Liberties Union of New York. (2019). People v. Jacobs/Mehra v. Kerricks School District (Challenging racial profiling against South Asians in Nassau County). Retrieved from https://www.nyclu.org/en/cases/people-v -jacobsmehra-v-herricks-school-district-challenging-racial-profiling-against -south American Psychological Association. (2012). Presidential task force on immigration. crossroads: The psychology of immigration in the new century. Retrieved from https://www.apa.org/topics/immigration/executive-summary.pdf American Psychological Association. (2014). Report of the Task Force on Trafficking of Women and Girls. Retrieved from https://www.apa.org/pi/women/programs /trafficking/report.pdf American Psychological Association, Commission on Accreditation. (2018). Standards of accreditation for health service psychology. Washington, DC: Author. American Psychological Association. (2017). Multicultural guidelines: An ecological approach to context, identity, and intersectionality. Retrieved from http://www .apa.org/about/policy/multicultural-guidelines.pdf American Psychological Association. (2018a). Committee on Division/APA Relations (CODAPAR): Interdivisional grant program. Retrieved from https://www.apa .org/about/awards/interdivisional-grants-project.aspx?tab=4)f American Psychological Association. (2018b). Legislative issues and advocacy train- ing tools. Retrieved from https://www.apa.org/apags/resources/advocacy/toolkit .aspx?tab=2 Arkansas Act 189, 92d Gen. Assem. (Ark. 2019). Bailey, Z.D., Krieger, N., Agenor, M., Graves, J., Linos, N., & Bassett, M. T. (2017). Structural racism and health inequities in the USA: Evidence and interventions. The Lancet, 389, 1453–1463. doi:10.1016/S0140-6736(17)30569-X Barak, G., Leighton, P., & Cotton, A. (2015). Class, race, gender, crime: The social realities of justice in America (4th ed.). Lanham, MD: Rowman and Littlefield. Bartol, C., & Bartol, A. M. (2017). Criminal behavior: A psychological approach (11th ed.). Upper Saddle River, NJ: Pearson. Becker Herbst, R., Sabet, R. F., Swanson, A., Suarez, L. G., Marques, D. S., Ameen, E. J., & Aldarondo, E. (2018). “They were going to kill me”: Resilience in unaccompanied immigrant minors. The Counseling Psychologist, 46, 241–268. doi:10.1177/0011000018759769 Beckett, K., & Evans, H. (2015). Crimmigration at the local level: Criminal justice processes in the shadow of deportation. Law & Society Review, 49, 241–277. doi:10.1111/lasr.12120 Benner, K. (2019, July 16). Eric Garner’s death will not lead to federal charges for N.Y.P.D. officer. The New York Times. Retrieved from https://www.nytimes .com/2019/07/16/nyregion/eric-garner-case-death-daniel-pantaleo.html https://www.aclumontana.org/en/news/statement-corecivics-inducement-state-montana https://www.aclumontana.org/en/news/statement-corecivics-inducement-state-montana https://www.nyclu.org/en/cases/people-v-jacobsmehra-v-herricks-school-district-challenging-racial-profiling-against-south https://www.nyclu.org/en/cases/people-v-jacobsmehra-v-herricks-school-district-challenging-racial-profiling-against-south https://www.nyclu.org/en/cases/people-v-jacobsmehra-v-herricks-school-district-challenging-racial-profiling-against-south https://www.apa.org/topics/immigration/executive-summary.pdf https://www.apa.org/pi/women/programs/trafficking/report.pdf https://www.apa.org/pi/women/programs/trafficking/report.pdf http://www.apa.org/about/policy/multicultural-guidelines.pdf http://www.apa.org/about/policy/multicultural-guidelines.pdf https://www.apa.org/about/awards/interdivisional-grants-project.aspx?tab=4)f https://www.apa.org/about/awards/interdivisional-grants-project.aspx?tab=4)f https://www.apa.org/apags/resources/advocacy/toolkit.aspx?tab=2 https://www.apa.org/apags/resources/advocacy/toolkit.aspx?tab=2 https://www.nytimes.com/2019/07/16/nyregion/eric-garner-case-death-daniel-pantaleo.html https://www.nytimes.com/2019/07/16/nyregion/eric-garner-case-death-daniel-pantaleo.html 726 The Counseling Psychologist 47(5) Birzer, M. L. (1999). Police training in the 21st century. FBI Law Enforcement Bulletin, 68(7), 16–19. doi:10.1037/e313152004-005 Black lives upended by policing: The raw videos sparking outrage. (2018, April 19). The New York Times. Retrieved from https://www.nytimes.com/interactive/2017/08/19 /us/police-videos-race.html?mtrref=www.google.com&assetType=REGIWALL& mtrref=www.nytimes.com&gwh=2B5573F635DAB0218BAAC936DE22B280&g wt=pay&assetType=REGIWALL Blackmon, D. A. (2009). Slavery by another name: The re-enslavement of Black Americans from the Civil War to World War II. New York, NY: Doubleday. Blomberg, T. G., Bales, W. D., & Piquero, A. R. (2012). Is educational achievement a turning point for incarcerated delinquents across race and sex? Journal of Youth and Adolescence, 41, 202–216. doi:10.1007/s10964-011-9680-4 Bonnie, R. J., Johnson, R. L., Chemers, B. M., & Schuck, J. (2013). Reforming juve- nile justice: A developmental approach. Washington, DC: National Academies Press. Bonta, J., & Andrews, D. A. (2017). The psychology of criminal conduct (6th ed.). New York, NY: Routledge. Bor, J., Venkataramani, A. S., Williams, D. R., & Tsai, A. C. (2018). Police killings and their spillover effects on the mental health of Black Americans: A popula- tion-based, quasi-experimental study. The Lancet, 392, 302–310. doi:10.1016/ S0140-6736(18)31130-9 Brunson, R. K., & Miller, J. (2006). Young Black men and urban policing in the U.S. The British Journal of Criminology, 46, 613–640. doi:10.1093/bjc/azi093 Byrne, O., & Miller, E. (2012, March). The flow of unaccompanied children through the immigration system: A resource for practitioners, policy makers, and research- ers. Retrieved from https://storage.googleapis.com/vera-web-assets/downloads /Publications/the-flow-of-unaccompanied-children-through-the-immigration-system -a-resource-for-practitioners-policy-makers-and-researchers/legacy_downloads/the -flow-of-unaccompanied-children-through-the-immigration-system.pdf Carson, E.A. (2015). Prisoners in 2014 (NCJ 248955). Retrieved from https://www .bjs.gov/content/pub/pdf/p14.pdf Carter, R. T. (2007). Racism and psychological and emotional injury: Recognizing and assessing race-based traumatic stress. The Counseling Psychologist, 35, 13– 105. doi:10.1177/0011000006292033 Carter, R. T., Lau, M. Y., Johnson, V., & Kirkinis, K. (2017). Racial discrimina- tion and health outcomes among racial/ethnic minorities: A meta-analytic review. Journal of Multicultural Counseling and Development, 45, 232–259. doi:10.1002/jmcd.12076 Case, A., & Bhattacharya, J. (2017, May). Driving into debt: The need for traffic ticket fee reform. Insight Center for Community and Economic Development. Retrieved from https://insightcced.org/driving-into-debt-the-need-for-traffic -ticket-fee-reform Center for American Progress & Movement Advancement Project. (2016). Unjust: How the broken justice system fails LGBTQ People of Color. Retrieved from http://www.lgbtmap.org/policy-and-issue-analysis/criminal-justice-poc https://www.nytimes.com/interactive/2017/08/19/us/police-videos-race.html?mtrref=www.google.com&assetType=REGIWALL&mtrref=www.nytimes.com&gwh=2B5573F635DAB0218BAAC936DE22B280&gwt=pay&assetType=REGIWALL https://www.nytimes.com/interactive/2017/08/19/us/police-videos-race.html?mtrref=www.google.com&assetType=REGIWALL&mtrref=www.nytimes.com&gwh=2B5573F635DAB0218BAAC936DE22B280&gwt=pay&assetType=REGIWALL https://www.nytimes.com/interactive/2017/08/19/us/police-videos-race.html?mtrref=www.google.com&assetType=REGIWALL&mtrref=www.nytimes.com&gwh=2B5573F635DAB0218BAAC936DE22B280&gwt=pay&assetType=REGIWALL https://www.nytimes.com/interactive/2017/08/19/us/police-videos-race.html?mtrref=www.google.com&assetType=REGIWALL&mtrref=www.nytimes.com&gwh=2B5573F635DAB0218BAAC936DE22B280&gwt=pay&assetType=REGIWALL https://storage.googleapis.com/vera-web-assets/downloads/Publications/the-flow-of-unaccompanied-children-through-the-immigration-system-a-resource-for-practitioners-policy-makers-and-researchers/legacy_downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf https://storage.googleapis.com/vera-web-assets/downloads/Publications/the-flow-of-unaccompanied-children-through-the-immigration-system-a-resource-for-practitioners-policy-makers-and-researchers/legacy_downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf https://storage.googleapis.com/vera-web-assets/downloads/Publications/the-flow-of-unaccompanied-children-through-the-immigration-system-a-resource-for-practitioners-policy-makers-and-researchers/legacy_downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf https://storage.googleapis.com/vera-web-assets/downloads/Publications/the-flow-of-unaccompanied-children-through-the-immigration-system-a-resource-for-practitioners-policy-makers-and-researchers/legacy_downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf https://www.bjs.gov/content/pub/pdf/p14.pdf https://www.bjs.gov/content/pub/pdf/p14.pdf https://insightcced.org/driving-into-debt-the-need-for-traffic-ticket-fee-reform https://insightcced.org/driving-into-debt-the-need-for-traffic-ticket-fee-reform http://www.lgbtmap.org/policy-and-issue-analysis/criminal-justice-poc Varghese et al. 727 Chacón, J. M. (2012). Overcriminalizing immigration. Journal of Criminal Law and Criminology, 102, 613–652. Chakraborly, R. (2018, January 3). Civil disobedience in the Trump Era. Harvard Political Review. Retrieved from http://harvardpolitics.com/united-states/civil -disobedience-in-the-trump-era/ Chism, E. (2016). Police officer perceptions of wellness programs (Doctoral disserta- tion). Retrieved from https://scholarworks.waldenu.edu/cgi/viewcontent.cgi?arti cle=4250&context=dissertations Clark, R., Anderson, N. B., Clark, V. R., & Williams, D. R. (1999). Racism as a stressor for African Americans: A biopsychosocial model. American Psychologist, 54, 805–816. doi:10.1037/0003-066X.54.10.805 Clawson, H. J., Salomon, A., & Grace, L. G. (2008). Treating the hidden wounds: Trauma treatment and mental health recovery for victims of human trafficking. Retrieved from http://aspe.hhs.gov/hsp/07/humantrafficking/treating/ib.pdf Coderoni, G. R. (2002). The relationship between multicultural training for police and effective law enforcement. FBI Law Enforcement Bulletin, 71(11), 16– 18. Retrieved from https://heinonline.org/HOL/Page?handle=hein.journals /fbileb71&div=77&g_sent=1&casa_token=tsLetCquQAYAAAAA:rQjQCHc dOLkBl0c3ET4m9L6D3x-QFqL0ysB6v6s9QQE0VarPHM_PqLj_xeKLLkU YwJhNOMOR&collection=journals Collins, J. C., & Rocco, T. S. (2015). Rules of engagement as survival consciousness: Gay male law enforcement officers’ experiential learning in a masculinized indus- try. Adult Education Quarterly, 65, 295–312. doi:10.1177/0741713615585163 Community Toolbox: Learning a Skill. (2018). Changing policies: An overview. Retrieved from https://ctb.ku.edu/en/table-of-contents/implement/changing -policies/overview/main Compton, M. T., Bahora, M., Watson, A. C., & Oliva, J. R. (2008). A comprehensive review of extant research on crisis intervention team (CIT) program. Journal of the American Academy of Psychiatry and the Law Online, 36(1), 47–55. Retrieved from http://www.jaapl.org/cgi/content/full/36/1/47 Coonan, T., & Thompson, R. (2003). Florida responds to human trafficking. Florida State University Center for the Advancement of Human Rights. Retrieved from https://cahr.fsu.edu/wp-content/uploads/2018/01/thereport.pdf Cornett-DeVito, M. M., & McGlone, E. L. (2000). Multicultural communication training for law enforcement officers: A case study. Criminal Justice Policy Review, 11, 234–253. doi:10.1177/0887403400011003003 Council of Economic Advisors. (2015, December). Fines, fees, and bail: Payment in the criminal justice system that disproportionately impact the poor. Retrieved from https://obamaWhitehouse.archives.gov/sites/default/files/page/files/1215_ cea_fine_fee_bail_issue_brief.pdf Covenant House. (2013). Homelessness, survival sex, and human trafficking: As experienced by the youth of Covenant House New York. New York, NY: Bigelson. Retrieved from https://humantraffickinghotline.org/sites/default /files/Homelessness%2C%20Survival%20Sex%2C%20and%20Human%20 Trafficking%20-%20Covenant%20House%20NY.pdf http://harvardpolitics.com/united-states/civil-disobedience-in-the-trump-era/ http://harvardpolitics.com/united-states/civil-disobedience-in-the-trump-era/ https://scholarworks.waldenu.edu/cgi/viewcontent.cgi?article=4250&context=dissertations https://scholarworks.waldenu.edu/cgi/viewcontent.cgi?article=4250&context=dissertations http://aspe.hhs.gov/hsp/07/humantrafficking/treating/ib.pdf https://heinonline.org/HOL/Page?handle=hein.journals/fbileb71&div=77&g_sent=1&casa_token=tsLetCquQAYAAAAA:rQjQCHcdOLkBl0c3ET4m9L6D3x-QFqL0ysB6v6s9QQE0VarPHM_PqLj_xeKLLkUYwJhNOMOR&collection=journals https://heinonline.org/HOL/Page?handle=hein.journals/fbileb71&div=77&g_sent=1&casa_token=tsLetCquQAYAAAAA:rQjQCHcdOLkBl0c3ET4m9L6D3x-QFqL0ysB6v6s9QQE0VarPHM_PqLj_xeKLLkUYwJhNOMOR&collection=journals https://heinonline.org/HOL/Page?handle=hein.journals/fbileb71&div=77&g_sent=1&casa_token=tsLetCquQAYAAAAA:rQjQCHcdOLkBl0c3ET4m9L6D3x-QFqL0ysB6v6s9QQE0VarPHM_PqLj_xeKLLkUYwJhNOMOR&collection=journals https://heinonline.org/HOL/Page?handle=hein.journals/fbileb71&div=77&g_sent=1&casa_token=tsLetCquQAYAAAAA:rQjQCHcdOLkBl0c3ET4m9L6D3x-QFqL0ysB6v6s9QQE0VarPHM_PqLj_xeKLLkUYwJhNOMOR&collection=journals https://ctb.ku.edu/en/table-of-contents/implement/changing-policies/overview/main https://ctb.ku.edu/en/table-of-contents/implement/changing-policies/overview/main http://www.jaapl.org/cgi/content/full/36/1/47 https://cahr.fsu.edu/wp-content/uploads/2018/01/thereport.pdf https://obamaWhitehouse.archives.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf https://obamaWhitehouse.archives.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf https://humantraffickinghotline.org/sites/default/files/Homelessness%2C%20Survival%20Sex%2C%20and%20Human%20Trafficking%20-%20Covenant%20House%20NY.pdf https://humantraffickinghotline.org/sites/default/files/Homelessness%2C%20Survival%20Sex%2C%20and%20Human%20Trafficking%20-%20Covenant%20House%20NY.pdf https://humantraffickinghotline.org/sites/default/files/Homelessness%2C%20Survival%20Sex%2C%20and%20Human%20Trafficking%20-%20Covenant%20House%20NY.pdf 728 The Counseling Psychologist 47(5) Crenshaw, K. (1991). Mapping the margins: Intersectionality, identity politics, and violence against Women of Color. Stanford Law Review, 43, 1241–1299. doi:10.2307/1229039 Crenshaw, K. (2011). Twenty years of Critical Race Theory: Looking back to move forward. Connecticut Law Review, 43, 1253–1352. Crenshaw, K., Ritchie, A. J., Anspach, R., Gilmer, R., & Harris, L. (2015, July). Say her name: Resisting police brutality against Black women. African American Policy Reform. Retrieved from http://static1.squarespace.com/static/53f20d90e 4b0b80451158d8c/t/55a810d7e4b058f342f55873/1437077719984/AAPF_ SMN_Brief_full_singles.compressed.pdf Criminal Justice Policy Foundation. (2018). Mandatory minimums and sentencing reform. Retrieved from https://www.cjpf.org/mandatory-minimums/ Criminal Justice Project. (2017). Death Row U.S.A. Retrieved from http://www .naacpldf.org/files/about-us/DRUSASpring2017.pdf Curtis, R., Terry, K., Dank, M., Dombrowski, K., & Khan, B. (2008). The commercial sexual exploitation of children in New York City (Vol. 1). Retrieved from https:// www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf Dank, M., Yahner, J., Madden, K., Banuelos, I., Yu, L., Ritchie, A., Mora, M., & Conner, B. (2015). Surviving the streets of New York: Experiences of LGBTQ youth, YMSM, and YWSW engaged in survival sex. Retrieved from http://www .urban.org/sites/default/files/alfresco/publication-pdfs/2000119-Surviving-the -Streets-of-New-York.pdf Darensburg, T., Andrew, M. E., Hartley, T. A., Burchfiel, C. M., Fekedulegn, D., & Violanti, J. M. (2006). Gender and age differences in posttraumatic stress disor- der and depression among Buffalo police officers. Traumatology, 12, 220–228. doi:10.1177/1534765606296271 David, E. J. R. (2013). Internalized oppression: The psychology of marginalized groups. New York, NY: Springer. Davis, L. M., Bozick, R., Steele, J. L., Saunders, J., & Miles, J. N. V. (2013) Evaluating the effectiveness of correctional education: A meta-analysis of programs that provide education to incarcerated adults. Retrieved from https://www.rand.org /pubs/research_reports/RR266.html Deer, S. (2010). Relocation revisited: Sex trafficking of native women in the United States. William Mitchell Law Review. Retrieved from https://open.mitchellhamline .edu/cgi/viewcontent.cgi?article=1157&context=facsch Delgado, R., & Stefancic, J. (2017). Critical Race Theory: An introduction (3rd ed.). New York, NY: New York University. Dreier, P. (2016, July 11). Caught on camera: Police racism. The American Prospect. Retrieved from http://prospect.org/article/caught-camera-police-racism Dressel, J., & Farid, H. (2018). The accuracy, fairness, and limits of predicting recidi- vism. Science Advances, 4(1), eaao5580. doi:10.1126/sciadv.aao5580 Dwyer, J. (2004). Illegal immigrants, health care, and social responsibility. The Hastings Center Report, 34(1), 34–41. doi:10.2307/3528249 Edelman, M. W. (2007). The cradle to prison pipeline: An American crisis. Preventing Chronic Disease, CDC, 4(3), A43. Retrieved from https://www.cdc.gov/pcd/issues /2007/jul/07_0038.htm http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/55a810d7e4b058f342f55873/1437077719984/AAPF_SMN_Brief_full_singles.compressed.pdf http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/55a810d7e4b058f342f55873/1437077719984/AAPF_SMN_Brief_full_singles.compressed.pdf http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/55a810d7e4b058f342f55873/1437077719984/AAPF_SMN_Brief_full_singles.compressed.pdf https://www.cjpf.org/mandatory-minimums/ http://www.naacpldf.org/files/about-us/DRUSASpring2017.pdf http://www.naacpldf.org/files/about-us/DRUSASpring2017.pdf https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000119-Surviving-the-Streets-of-New-York.pdf http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000119-Surviving-the-Streets-of-New-York.pdf http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000119-Surviving-the-Streets-of-New-York.pdf https://www.rand.org/pubs/research_reports/RR266.html https://www.rand.org/pubs/research_reports/RR266.html https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1157&context=facsch https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1157&context=facsch http://prospect.org/article/caught-camera-police-racism https://www.cdc.gov/pcd/issues/2007/jul/07_0038.htm https://www.cdc.gov/pcd/issues/2007/jul/07_0038.htm Varghese et al. 729 Estes, R., & Weiner, N. (2001). The commercial sexual exploitation of children in the U.S., Canada and Mexico. Retrieved from https://abolitionistmom.org/wp -content/uploads/2014/05/Complete_CSEC_0estes-weiner.pdf Ewing, W. A. (2012). Opportunity and exclusion: A brief history of U.S. immi- gration policy. Immigration Policy Center. Retrieved from https://www .americanimmigrationcouncil.org/sites/default/files/research/opportunity_ exclusion_011312.pdf Fazel, S., Hayes, A. J., Bartellas, K., Clerici, M., & Trestman, R. (2016). Mental health of prisoners: Prevalence, adverse outcomes, and interventions. The Lancet Psychiatry, 3, 871–881. doi:10.1016/s2215-0366(16)30142-0 Federal Judicial Center. (2019). Federal and state court cooperation: Effectiveness of implicit bias trainings. Retrieved from https://www.fjc.gov/content/337738 /effectiveness-implicit-bias-trainings Finklea, K., Fernandes-Alcantara, A., & Siskin, A. (2015, January 28). Sex trafficking of children in the United States: Overview and issues for Congress. Retrieved from https://fas.org/sgp/crs/misc/R41878.pdf First Step Act of 2018, S. 115-391, 115th Cong. (2018). Ford, D. (2015, July 21). New video shows Sandra Bland’s arrest. CNN. Retrieved from https://www.cnn.com/2015/07/21/us/texas-sandra-bland-arrest/index.html Fournier, J. (2018). 5 examples of civil disobedience we can learn from in 2018. Feministing. Retrieved from http://feministing.com/2018/01/08/5-examples-of -civil-disobedience-we-can-learn-from-in-2018/ Fridell, L. (2017). Producing bias-free policing: A science-based approach. New York, NY: Springer Publishing and the George Mason University Center for Evidence-Based Criminology. Fuchs, C. (2016, May 13). Charges dropped for Alabama cop who partially paralyzed grandfather. NBC News. Retrieved from https://www.nbcnews.com/news/asian -america/assault-charges-dropped-alabama-cop-who-partially-paralyzed-indian -grandfather-n573806 Gerassi, L. (2015). From exploitation to industry: Definitions, risks, and conse- quences of domestic sexual exploitation and sex work among women and girls. Journal of Human Behavior in the Social Environment, 25, 591–605. doi:10.108 0/10911359.2014.991055 Gokavi, M. (2016, August 13). Judge finds probable cause for 911 caller in Crawford shooting. Dayton Daily News. Retrieved from https://www.daytondailynews .com/news/crime–law/judge-finds-probable-cause-for-911-caller-crawford -shooting/HdlR8ZsgOnjnLTRhG6KVRM/ Galovski, T. E., Peterson, Z. D., Beagley, M. C., Strasshofer, D. R., Held, P., & Fletcher, T. D. (2016). Exposure to violence during Ferguson protests: Mental health effects for law enforcement and community members. Journal of Traumatic Stress, 29, 283–292. doi:10.1002/jts.22105 Gone, J. P., Hartmann, W. E., Pomerville, A., Wendt, D. C., Klem, S. H., & Burrage, R. L. (2019). The impact of historical trauma on health outcomes for indig- enous populations in the USA and Canada: A systematic review. American Psychologist, 74, 20–35. doi:10.1037/amp0000338 https://abolitionistmom.org/wp-content/uploads/2014/05/Complete_CSEC_0estes-weiner.pdf https://abolitionistmom.org/wp-content/uploads/2014/05/Complete_CSEC_0estes-weiner.pdf https://www.americanimmigrationcouncil.org/sites/default/files/research/opportunity_exclusion_011312.pdf https://www.americanimmigrationcouncil.org/sites/default/files/research/opportunity_exclusion_011312.pdf https://www.americanimmigrationcouncil.org/sites/default/files/research/opportunity_exclusion_011312.pdf https://www.fjc.gov/content/337738/effectiveness-implicit-bias-trainings https://www.fjc.gov/content/337738/effectiveness-implicit-bias-trainings https://fas.org/sgp/crs/misc/R41878.pdf https://www.cnn.com/2015/07/21/us/texas-sandra-bland-arrest/index.html http://feministing.com/2018/01/08/5-examples-of-civil-disobedience-we-can-learn-from-in-2018/ http://feministing.com/2018/01/08/5-examples-of-civil-disobedience-we-can-learn-from-in-2018/ https://www.nbcnews.com/news/asian-america/assault-charges-dropped-alabama-cop-who-partially-paralyzed-indian-grandfather-n573806 https://www.nbcnews.com/news/asian-america/assault-charges-dropped-alabama-cop-who-partially-paralyzed-indian-grandfather-n573806 https://www.nbcnews.com/news/asian-america/assault-charges-dropped-alabama-cop-who-partially-paralyzed-indian-grandfather-n573806 https://www.daytondailynews.com/news/crime%E2%80%93law/judge-finds-probable-cause-for-911-caller-crawford-shooting/HdlR8ZsgOnjnLTRhG6KVRM/ https://www.daytondailynews.com/news/crime%E2%80%93law/judge-finds-probable-cause-for-911-caller-crawford-shooting/HdlR8ZsgOnjnLTRhG6KVRM/ https://www.daytondailynews.com/news/crime%E2%80%93law/judge-finds-probable-cause-for-911-caller-crawford-shooting/HdlR8ZsgOnjnLTRhG6KVRM/ 730 The Counseling Psychologist 47(5) Gonzales, R. G., Suárez-Orozco, C., & Dedios-Sanguineti, M. A. (2013). No place to belong: Contextualizing concepts of mental health among undocumented immigrant youth in the U.S. American Behavioral Scientist, 57, 1174–1199. doi:10.1177/0002764213487349 Gonzales, S. (2016, October 11). Nearly 90% of New Jersey children tried as adults since 2011 were Black or Latino. The Guardian. Retrieved from https://www .theguardian.com/us-news/2016/oct/11/new-jersey-juvenile-detention-minority -tried-adults Gotsch, K., & Basti, V. (2018). Capitalizing on mass incarceration: U.S. growth in private prisons. The Sentencing Project. Retrieved from https://www .sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s -growth-in-private-prisons/ Gramlich, J. (2018). The gap between the number of Blacks and Whites in prison is shrinking. Pew Research Center. Retrieved from https://www.pewresearch.org /fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in -prison/ Gramlich, J., & Bialik, K. (2017). Immigration offenses make up a growing share of federal arrests. Pew Research Center. Retrieved from http://www.pewresearch .org/fact-tank/2017/04/10/immigration-offenses-make-up-a-growing-share-of -federal-arrests/ Grant applications — minority impact statements. (2018, December 8). Retrieved from https://www.legis.iowa.gov/docs/code/8.11.pdf Hacker, K., Chu, J., Leung, C., Marra, R., Pirie, A., Brahimi, M., . . . Marlin, R. P. (2011). The impact of immigration and customs enforcement on immigrant health: Perceptions of immigrants in Everett, Massachusetts, USA. Social Science & Medicine, 73, 586–594. doi:10.1016/j.socscimed.2011.06.007 Hannah-Moffat, K. (2018). Algorithmic risk governance: Big data analytics, race and information activism in criminal justice debates. Theoretical Criminology, 23, 453–470. doi:10.1177/1362480618763582 Hargons, C., Mosley, D., Falconer, J., Faloughi, R., Singh, A., Stevens-Watkins, D., & Cokley, K. (2017). Black lives matter: A call to action for counsel- ing psychology leaders. The Counseling Psychologist, 45, 873–901. doi:10. 1177/0011000017733048 Heilbrun, K., DeMatteo, D., Yasuhara, K., Brooks-Holliday, S., Shah, S., King, C., . . . Laduke, C. (2012). Community-based alternatives for justice-involved individuals with severe mental illness review of the relevant research. Criminal Justice and Behavior, 39, 351–419. doi:10.1177/0093854811432421 Hennessy, S. (2001). Cultural awareness and communication training: What works and what doesn’t. The Police Chief, 68(11), 15–19. Retrieved from https://www .ncjrs.gov/App/Publications/abstract.aspx?ID=192749 Hillman, A. (2019, February). Among Dunleavy’s proposed DOC cuts, sending 500 prisoners out of state. Alaska Public Media. Retrieved from https://www .alaskapublic.org/2019/02/13/among-dunleavys-proposed-doc-cuts-sending -500-prisoners-out-of-state/ https://www.theguardian.com/us-news/2016/oct/11/new-jersey-juvenile-detention-minority-tried-adults https://www.theguardian.com/us-news/2016/oct/11/new-jersey-juvenile-detention-minority-tried-adults https://www.theguardian.com/us-news/2016/oct/11/new-jersey-juvenile-detention-minority-tried-adults https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/ https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/ https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/ https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/ https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/ https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/ http://www.pewresearch.org/fact-tank/2017/04/10/immigration-offenses-make-up-a-growing-share-of-federal-arrests/ http://www.pewresearch.org/fact-tank/2017/04/10/immigration-offenses-make-up-a-growing-share-of-federal-arrests/ http://www.pewresearch.org/fact-tank/2017/04/10/immigration-offenses-make-up-a-growing-share-of-federal-arrests/ https://www.legis.iowa.gov/docs/code/8.11.pdf https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=192749 https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=192749 https://www.alaskapublic.org/2019/02/13/among-dunleavys-proposed-doc-cuts-sending-500-prisoners-out-of-state/ https://www.alaskapublic.org/2019/02/13/among-dunleavys-proposed-doc-cuts-sending-500-prisoners-out-of-state/ https://www.alaskapublic.org/2019/02/13/among-dunleavys-proposed-doc-cuts-sending-500-prisoners-out-of-state/ Varghese et al. 731 Hinton, E. (2016) From the war on poverty to the war on crime: The making of mass incarceration in America. Cambridge, MA: Harvard University Press. Hockenberry, S., & Puzzanchera, C. (2018). Juvenile court statistics 2015. National Center for Juvenile Justice. Retrieved from https://www.ojjdp.gov/ojstatbb /njcda/pdf/jcs2015.pdf Hoffmann, J. P., Erickson, L. D., & Spence, K. R. (2013). Modeling the associa- tion between academic achievement and delinquency: An application of interac- tional theory. Criminology: An Interdisciplinary Journal, 51, 629–660. doi:10. 1111/1745-9125.12014 Immigration and Nationality Act of 1965, 79 U.S.C. §§ 202 212 et seq. (1968). Retrieved from http://legislink.org/us/pl-89-236 Independence Hall Association. (1995). Historic documents: The pledge of alle- giance. Retrieved from http://www.ushistory.org/documents/pledge.htm Iles, G., & Adegun, O. V. (2018). Geography and sentencing: Does country of citi- zenship influence sentence longevity? International Journal of Criminology and Sociology, 7, 48–58. doi:10.6000/1929-4409.2018.07.05 Israel, T., Bettergarcia, J. N., Delucio, K., Avellar, T. R., Harkness, A., & Goodman, J. A. (2017). Reactions of law enforcement to LGBTQ diversity training. Human Resource Development Quarterly, 28, 197–226. doi:10.1002/hrdq.21281 Israel, T., Harkness, A., Avellar, T. R., Delucio, K., Bettergarcia, J. N., & Goodman, J. A. (2016). LGBTQ-affirming policing: Tactics generated by law enforcement personnel. Journal of Police and Criminal Psychology, 31, 173–181. doi:10.1007/ s11896-015-9169-2 Jacobson, L. (2018, January 22). School-university partnership seeks to improve graduation rates. Education Dive. Retrieved from https://www.educationdive.com /news/school-university-partnership-seeks-to-improve-graduation-rates/515058/ James, D. J., & Glaze, L. E. (2006). Mental health problems of prison and jail inmates. Retrieved from https://www.bjs.gov/content/pub/pdf/mhppji.pdf James, L., Fridell, L., & Straub, F. (2016, February). Psychosocial factors impact- ing on officers’ decisions to use deadly force: The implicit bias v. “Ferguson” effects. The Police Chief. Retrieved from http://www.policechiefmagazine.org /implicit-bias-versus-the-ferguson-effect-psychosocial-factors-impacting-officers -decisions-to-use-deadly-force/ Joint Public Statement by Psychology Groups on U.S. Immigration Policies and Practices. (2018, July 3). Retrieved from http://helenneville1.wixsite.com/website-1 Jones, C. P. (2000). Levels of racism: A theoretic framework and a gardener’s tale. American Journal of Public Health, 90, 1212–1215. doi:10.2105/AJPH.90.8.1212 Jones, J., & Podkul, J. (2012, October). Forced from home: The lost boys and girls of Central America. Report by the Women’s Refugee Commission. Retrieved from https://www.womensrefugeecommission.org/uncategorized/2057-forced-from -home-the-lost-boys-and-girls-of-central-america-background-and-report\ Jordan, M. (2019, July 30). No more family separations, except these 900. New York Times. Retrieved from https://www.nytimes.com/2019/07/30/us/migrant-family -separations.html https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2015.pdf https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2015.pdf http://legislink.org/us/pl-89-236 http://www.ushistory.org/documents/pledge.htm https://www.educationdive.com/news/school-university-partnership-seeks-to-improve-graduation-rates/515058/ https://www.educationdive.com/news/school-university-partnership-seeks-to-improve-graduation-rates/515058/ https://www.bjs.gov/content/pub/pdf/mhppji.pdf http://www.policechiefmagazine.org/implicit-bias-versus-the-ferguson-effect-psychosocial-factors-impacting-officers-decisions-to-use-deadly-force/ http://www.policechiefmagazine.org/implicit-bias-versus-the-ferguson-effect-psychosocial-factors-impacting-officers-decisions-to-use-deadly-force/ http://www.policechiefmagazine.org/implicit-bias-versus-the-ferguson-effect-psychosocial-factors-impacting-officers-decisions-to-use-deadly-force/ http://helenneville1.wixsite.com/website-1 https://www.womensrefugeecommission.org/uncategorized/2057-forced-from-home-the-lost-boys-and-girls-of-central-america-background-and-report https://www.womensrefugeecommission.org/uncategorized/2057-forced-from-home-the-lost-boys-and-girls-of-central-america-background-and-report https://www.nytimes.com/2019/07/30/us/migrant-family-separations.html https://www.nytimes.com/2019/07/30/us/migrant-family-separations.html 732 The Counseling Psychologist 47(5) Justifiable Use of Force, No. 776.013 Fla. Laws. (2019). Retrieved from http://www .leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL= 0700-0799/0776/0776.html Juszkiewicz, J. (2007, October). Too many youth caught in the net of adult pros- ecution. Retrieved from http://www.campaignforyouthjustice.org/research/cfyj -reports/item/too-many-youth-caught-in-the-net-of-adult-prosecution KATV News. (2017, August 10). UCA, juvenile court & judge join forces to help at- risk youth. Retrieved from https://katv.com/news/local/uca-juvenile-court-judge -join-forces-to-help-at-risk-youth Kennealy, P. J., Skeem, J. L., Manchak, S. M., & Louden, J. E. (2012). Firm, fair, and caring officer-offender relationships protect against supervision failure. Law and Human Behavior, 36, 496–505. doi:10.1037/h0093935 Klockars, C. B., Ivkovich, S. K., Harver, W. E., & Haberfeld, M. R. (2000). The measurement of police integrity (NCJ 181465). Retrieved from https://www.ncjrs .gov/pdffiles1/nij/181465.pdf Krisberg, B. A. (2018). Juvenile justice and delinquency. Thousand Oaks, CA: Sage. Krivo, L. J., & Peterson, R. D. (1996). Extremely disadvantaged neighborhoods and urban crime. Social Forces, 75, 619–648. doi:10.1093/sf/75.2.619 Krogstad, J. M., Passel, J. S., & Cohn, D. (2019, June 12). 5 Facts about illegal immigrants in the U.S. Retrieved from https://www.pewresearch.org/fact-tank /2019/06/12/5-facts-about-illegal-immigration-in-the-u-s/ Landers, M., McGrath, K., Johnson, M. H., Armstrong, M. I., & Dollard, N. (2017). Baseline characteristics of dependent youth who have been commercially sexu- ally exploited: Findings from a specialized treatment program. Journal of Child Sex Abuse, 26, 692–709. doi:10.1080/10538712.2017.1323814 Lavoie, J., Dickerson, K. L., Redlich, A. D., & Quas, J. A. (2019). Overcoming disclosure reluctance in youth victims of sex trafficking: New directions for research, policy, and practice. Psychology, Public Policy, and Law, 25, 225–238. doi:10.1037/law0000205 Lee, D. L., & Ahn, S. (2012). Discrimination against Latina/os: A meta-analysis of individual-level resources and outcomes. The Counseling Psychologist, 40, 28– 65. doi:10.1177/0011000011403326 Levinson, J. D., Bennett, M. W., & Hioki, K. (2017). Judging implicit bias: A national empirical study of judicial stereotypes. Florida Law Review, 69(1), 63–114. Retrieved from https://heinonline.org/HOL/Page?collection=journals&handle=h ein.journals/uflr69&id=69&men_tab=srchresults Li, Y., & Lerner, R. M. (2011). Trajectories of school engagement during adoles- cence: Implications for grades, depression, delinquency, and substance use. Developmental Psychology, 47, 233–247. doi:10.1037/a0021307 Lichtenberg, J. W., Hutman, H., & Goodyear, R. K. (2018). Portrait of counseling psychology: Demographics, roles, activities, and values across three decades. The Counseling Psychologist, 46, 50–76. doi:10.1177/0011000018754532 Lynch, S., & Cook, N. (2018, June 7). Exclusive: U.S. sending 1,600 immigration detainees to federal prisons. Retrieved from https://www.reuters.com/article http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html http://www.campaignforyouthjustice.org/research/cfyj-reports/item/too-many-youth-caught-in-the-net-of-adult-prosecution http://www.campaignforyouthjustice.org/research/cfyj-reports/item/too-many-youth-caught-in-the-net-of-adult-prosecution https://katv.com/news/local/uca-juvenile-court-judge-join-forces-to-help-at-risk-youth https://katv.com/news/local/uca-juvenile-court-judge-join-forces-to-help-at-risk-youth https://www.ncjrs.gov/pdffiles1/nij/181465.pdf https://www.ncjrs.gov/pdffiles1/nij/181465.pdf https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-about-illegal-immigration-in-the-u-s/ https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-about-illegal-immigration-in-the-u-s/ https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/uflr69&id=69&men_tab=srchresults https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/uflr69&id=69&men_tab=srchresults https://www.reuters.com/article/us-usa-immigration-prisons-exclusive/exclusive-u-s-sending-1600-immigration-detainees-to-federal-prisons-idUSKCN1J32W1 Varghese et al. 733 /us-usa-immigration-prisons-exclusive/exclusive-u-s-sending-1600-immigration -detainees-to-federal-prisons-idUSKCN1J32W1 Lyons, P. M., DeValve, M. J., & Garner, R. L. (2008). Texas police chiefs’ atti- tudes toward gay and lesbian police officers. Police Quarterly, 11, 102–117. doi:10.1177/1098611107302655 Majd, K., Marksamer, J., & Reyes, C. (2009). Hidden injustice: Lesbian, gay, bisexual, and transgender youth in juvenile courts. Retrieved from http://www .nclrights.org/wp-content/uploads/2014/06/hidden_injustice.pdf Maldonado, C. Z., Rodriguez, R. M., Torres, J. R., Flores, Y. S., & Lovato, L. M. (2013). Fear of discovery among Latino immigrants presenting to the emer- gency department. Academic Emergency Medicine, 20, 155–161. doi:10.1111/ acem.12079 Mallory, C., Hasenbush, A., & Sears, B. (2015). Discrimination and harassment by law enforcement officers in the LGBT community. Retrieved from https:// williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and -Harassment-in-Law-Enforcement-March-2015.pdf McElvain, J. P., & Kposowa, A. J. (2008). Police officer characteristics and the likelihood of using deadly force. Criminal Justice and Behavior, 35, 505–521. doi:10.1177/0093854807313995 Menjívar, C. (2006). Liminal legality: Salvadoran and Guatemalan immigrants’ lives in the U.S. American Journal of Sociology, 111, 999–1037. doi:10.1086/499509 Menjívar, C., & Perreira, K. M. (2019). Undocumented and unaccompanied: Children of migration in the European Union and the United States. Journal of Ethnic and Migration Studies, 45, 197–217. doi:10.1080/1369183x.2017.1404255 Meyer, I. H. (2003). Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: Conceptual issues and research evidence. Psychological Bulletin, 129, 674–697. doi:10.1037/0033-2909.129.5.674 Meyer, I. H., Flores, A. R., Stemple, L., Romero, A. P., Wilson, B. M., & Herman, J. L. (2017). Incarceration rates and traits of sexual minorities in the United States: National inmate survey, 2011–2012. American Journal of Public Health, 107, 267–273. doi:10.2105/ajph.2016.303576 Miletick, S. (2019, March 5). Seattle police union official: Reforms deterred offi- cers from seeking out crime, hindered recruitment, retention. The Seattle Times. Retrieved from https://www.seattletimes.com/seattle-news/seattle-police-union -official-reforms-deterred-officers-from-seeking-out-crime-hindered-recruitment -retention/ Miller, T. R., Lawrence, B. A., Carlson, N. N., Hendrie, D., Randall, S., Rockett, I. R., & Spicer, R. S. (2017, February 1). Perils of police action: A cautionary tale from US data sets. Retrieved from https://injuryprevention.bmj.com/content/23/1/27 Moore, R. (2018, May 7). Homeland Security promises to prosecute 100 percent of illegal immigration cases. Retrieved from https://www.texasmonthly.com/news /homeland-security-promises-to-prosecute-100-percent-of-illegal-immigration -cases/ https://www.reuters.com/article/us-usa-immigration-prisons-exclusive/exclusive-u-s-sending-1600-immigration-detainees-to-federal-prisons-idUSKCN1J32W1 https://www.reuters.com/article/us-usa-immigration-prisons-exclusive/exclusive-u-s-sending-1600-immigration-detainees-to-federal-prisons-idUSKCN1J32W1 http://www.nclrights.org/wp-content/uploads/2014/06/hidden_injustice.pdf http://www.nclrights.org/wp-content/uploads/2014/06/hidden_injustice.pdf https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf https://www.seattletimes.com/seattle-news/seattle-police-union-official-reforms-deterred-officers-from-seeking-out-crime-hindered-recruitment-retention/ https://www.seattletimes.com/seattle-news/seattle-police-union-official-reforms-deterred-officers-from-seeking-out-crime-hindered-recruitment-retention/ https://www.seattletimes.com/seattle-news/seattle-police-union-official-reforms-deterred-officers-from-seeking-out-crime-hindered-recruitment-retention/ https://injuryprevention.bmj.com/content/23/1/27 https://www.texasmonthly.com/news/homeland-security-promises-to-prosecute-100-percent-of-illegal-immigration-cases/ https://www.texasmonthly.com/news/homeland-security-promises-to-prosecute-100-percent-of-illegal-immigration-cases/ https://www.texasmonthly.com/news/homeland-security-promises-to-prosecute-100-percent-of-illegal-immigration-cases/ 734 The Counseling Psychologist 47(5) Moradi, B., & Grzanka, P. R. (2017). Using intersectionality responsibly: Toward critical epistemology, structural analysis, and social justice activism. Journal of Counseling Psychology, 64, 500–513. doi:10.1037/cou0000203 Nagata, D. K., Kim, J. H. J., & Wu, K. (2019). The Japanese American wartime incarceration: Examining the scope of racial trauma. American Psychologist, 74, 36–48. doi:10.1037/amp0000303 National Center for Transgender Equality. (2018). Policies to increase safety and respect for transgender prisoners: A guide for agencies and advocates. Retrieved from https://transequality.org/safetyfortransprisoners National Conference of State Legislatures (2018). Self-defense and “Stand Your Ground.” Retrieved from http://www.ncsl.org/research/civil-and-criminal-justice /self-defense-and-stand-your-ground.aspx National Immigrant Justice Center (2013). Fact sheet: Children detained by the Department of Homeland Security in adult detention facilities. Retrieved from https://www.immigrantjustice.org/sites/immigrantjustice.org/files/NIJC%20 Fact%20Sheet%20Minors%20in%20ICE%20Custody%202013%2005%20 30%20FINAL_0.pdf National Institute of Justice. (2011). Police use of force, tasers, and other less-lethal weapons. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/232215.pdf National Organization for Victim Assistance. (2018). Crisis response program. Retrieved from https://www.trynova.org/crisis-response-program/ National Prison Rape Elimination Commission. (2009). National prison rape elimina- tion commission report. Retrieved from https://www.ncjrs.gov/pdffiles1/226680 .pdf O’Connor, A. J., & Jahan, F. (2014). Under surveillance and overwrought: American Muslims’ emotional and behavioral responses to government surveillance. Journal of Muslim Mental Health, 8(1), 95–106. doi:10.3998/jmmh.10381607.0008.106 Office of the Inspector General, U.S. Department of Justice (2016, August). Review of the Federal Bureau of Prisons’ monitoring of contract prisons. Retrieved from https://oig.justice.gov/reports/2016/e1606.pdf Olivas, M. A., & Jones, D. Y. (2017). Restoring Pell Grants to prisoners—Growing momentum for reform. Retrieved from https://www.law.uh.edu/ihelg/monograph /17-03.pdf Onyeka-Crawford, A., Patrick, K., & Chaudhry, N. (2017). Let her learn: Stopping school pushout for Girls of Color. National Women’s Law Center. Retrieved from https://nwlc.org/wp-content/uploads/2017/04/final_nwlc_Gates_GirlsofColor .pdf Pager, D. (2003). The mark of a criminal record. American Journal of Sociology, 108, 937–975. doi:10.1086/374403 Pascoe, E. A., & Richman, L. S. (2009). Perceived discrimination and health: A meta- analytic review. Psychological Bulletin, 135, 531–554. doi:10.1037/a0016059. supp Patel v. City of Madison, Alabama, and Eric Sloan Parker, No. 5:15-CV-0253-VEH (N.D. Ala. 2019). https://transequality.org/safetyfortransprisoners http://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground.aspx http://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground.aspx https://www.immigrantjustice.org/sites/immigrantjustice.org/files/NIJC%20Fact%20Sheet%20Minors%20in%20ICE%20Custody%202013%2005%2030%20FINAL_0.pdf https://www.immigrantjustice.org/sites/immigrantjustice.org/files/NIJC%20Fact%20Sheet%20Minors%20in%20ICE%20Custody%202013%2005%2030%20FINAL_0.pdf https://www.immigrantjustice.org/sites/immigrantjustice.org/files/NIJC%20Fact%20Sheet%20Minors%20in%20ICE%20Custody%202013%2005%2030%20FINAL_0.pdf https://www.ncjrs.gov/pdffiles1/nij/232215.pdf https://www.trynova.org/crisis-response-program/ https://www.ncjrs.gov/pdffiles1/226680.pdf https://www.ncjrs.gov/pdffiles1/226680.pdf https://oig.justice.gov/reports/2016/e1606.pdf https://www.law.uh.edu/ihelg/monograph/17-03.pdf https://www.law.uh.edu/ihelg/monograph/17-03.pdf https://nwlc.org/wp-content/uploads/2017/04/final_nwlc_Gates_GirlsofColor.pdf https://nwlc.org/wp-content/uploads/2017/04/final_nwlc_Gates_GirlsofColor.pdf Varghese et al. 735 Perry, D. M., & Carter-Long, L. (2016). The Ruderman White paper on media cov- erage of law enforcement use of force and disability: A media study (2013– 2015) and overview. Retrieved from http://rudermanfoundation.org/wp-content /uploads/2017/08/MediaStudy-PoliceDisability_final-final.pdf Pew Center on the States. (2009). One in 31: The long reach of American correc- tions. Retrieved from https://www.pewtrusts.org/~/media/assets/2009/03/02 /pspp_1in31_report_final_web_32609.pdf Pham, H. (2018). 287(g) agreements in the Trump Era. Washington & Lee Law Review, 75, 1253–1286. Retrieved from https://scholarlycommons.law.wlu.edu /cgi/viewcontent.cgi?article=4609&context=wlulr Piquero, A. R., & Jennings, W. G. (2016). Research note: Justice system-imposed financial penalties increase the likelihood of recidivism in a sample of ado- lescent offenders. Youth Violence and Juvenile Justice, 15, 325–340. doi:10. 1177/1541204016669213 Polaris Project. (2013). Human trafficking trends in the U.S. National Human Trafficking Resource Center 2007–2012. Retrieved from https://polarisproject .org/resources/human-trafficking-trends-2007-2012 Police Executive Research Forum (2015). Re-engineering training on police use of force. Critical issues in policing series. Retrieved from http://www.policeforum .org/assets/reengineeringtraining1.pdf Policing and profit. (2015, April 10). Harvard Law Review, 128, 1723–1746. Retrieved from https://harvardlawreview.org/2015/04/policing-and-profit/ Poteat, V. P., Scheer, J. R., & Chong, E. S. K. (2016). Sexual orientation-based dis- parities in school and juvenile justice discipline: A multiple group comparison of contributing factors. Journal of Educational Psychology, 108(2), 229–241. doi:10.1037/edu0000058 Prison Policy Initiative. (2019, May). Policing women: Race and gender disparities in police stops, searches, and use of force. Retrieved from https://www.prisonpolicy .org/blog/2019/05/14/policingwomen/ Prilleltensky, I. (2014). Justice and human development. International Journal of Educational Psychology, 3, 287–305. doi:10.4471/ijep.2014.15 Pryce, J. (2018, September 13). The long history of separating families in the US and how the trauma lingers. The Conversation. Retrieved from http://theconversation.com/the -long-history-of-separating-families-in-the-us-and-how-the-trauma-lingers-98616 Rampey, B. D., Keiper, S., Mohadjer, L., Krenzke, T., Li, J., Thornton, N., & Hogan, J. (2016). Highlights from the U.S. PIAAC survey of incarcerated adults: Their skills, work experience, education, and training: Program for the International Assessment of Adult Competencies: 2014 (NCES 2016-040). Retrieved from https://nces.ed.gov/pubs2016/2016040.pdf Ramsey, R. (2019, July 1). Analysis: The family separation crisis peaked more than a year ago. Conditions at the border are still terrible. The Texas Tribune. Retrieved from https://www.texastribune.org/2019/07/01/family-separation-crisis-peaked- year-ago-conditions-still-terrible/ http://rudermanfoundation.org/wp-content/uploads/2017/08/MediaStudy-PoliceDisability_final-final.pdf http://rudermanfoundation.org/wp-content/uploads/2017/08/MediaStudy-PoliceDisability_final-final.pdf https://www.pewtrusts.org/~/media/assets/2009/03/02/pspp_1in31_report_final_web_32609.pdf https://www.pewtrusts.org/~/media/assets/2009/03/02/pspp_1in31_report_final_web_32609.pdf https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4609&context=wlulr https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4609&context=wlulr https://polarisproject.org/resources/human-trafficking-trends-2007-2012 https://polarisproject.org/resources/human-trafficking-trends-2007-2012 http://www.policeforum.org/assets/reengineeringtraining1.pdf http://www.policeforum.org/assets/reengineeringtraining1.pdf https://harvardlawreview.org/2015/04/policing-and-profit/ https://www.prisonpolicy.org/blog/2019/05/14/policingwomen/ https://www.prisonpolicy.org/blog/2019/05/14/policingwomen/ http://theconversation.com/the-long-history-of-separating-families-in-the-us-and-how-the-trauma-lingers-98616 http://theconversation.com/the-long-history-of-separating-families-in-the-us-and-how-the-trauma-lingers-98616 https://nces.ed.gov/pubs2016/2016040.pdf https://www.texastribune.org/2019/07/01/family-separation-crisis-peaked-year-ago-conditions-still-terrible/ https://www.texastribune.org/2019/07/01/family-separation-crisis-peaked-year-ago-conditions-still-terrible/ 736 The Counseling Psychologist 47(5) Raphael, S., & Stoll, M. A. (2013). Assessing the contribution of the deinstitutional- ization of the mentally ill to growth in the U.S. incarceration rate. The Journal of Legal Studies, 42(1), 187–222. doi:10.1086/667773 Reisner, S. L., Bailey, Z., & Sevelius, J. M. (2014). Racial/ethnic disparities in history of incarceration, experiences of victimization, and associated health indicators among transgender women in the U.S. Women & Health, 54, 750–767. doi:10.1 080/03630242.2014.932891 Richards-Ward, L. A., & McDaniel, C. (2007). Corrections in Aotearao/New Zealand: Current issues and future challenges. In R. K. Ax, & T. J. Fagan (Eds.), Corrections, mental health, and social policy: International perspectives. Springfield, IL: Charles Thomas. Robinson, B. A., Winiarski, D. A., Brennan, P. A., Foster, S. L., Cunningham, P. B., & Whitmore, E. A. (2015). Social context, parental monitoring, and multi- systemic therapy outcomes. Psychotherapy, 52, 103–110. doi:10.1037/a0037948 Ross, M. B, Fazzalaro, J., Barone, K., & Kalinowski, J. (2016, May). State of Connecticut: Traffic stop data analysis and findings, 2014–2015. Connecticut Racial Profiling Prohibition Project. Retrieved from https://www.ccsu.edu/imrp /Publicatons/Files/May%202016%20Connecticut%20Racial%20Profiling%20 Report.pdf Roth, M. P. (2005). Crime and punishment: A history of the criminal justice system (1st ed.). Belmont, CA: Cengage. Rothwell, G. R., & Baldwin, J. N. (2007). Whistle-blowing and the code of silence in police agencies: Policy and structural predictors. Crime & Delinquency, 53, 605–632. doi:10.1177/0011128706295048 Ruffin, R. D. (2017). Examining minority perceptions of police behavior (Unpublished dissertation). Retrieved from ProQuest. Saar, M. S., Epstein, R., Rosenthal, L., & Vafa, Y. (2015). The sexual abuse to prison pipeline: The girls’ story. Human Rights Project for Girls. Retrieved from https:// rights4girls.org/wp-content/uploads/r4g/2015/02/2015_COP_sexual-abuse_layout_ web-1.pdf Sikh American Legal Education Defense Fund. (2007, April 12). Sikh American vet- eran assaulted by police officer in Illinois. Retrieved from http://saldef.org/news /sikh-american-veteran-assaulted-by-police-officer-in-illinois/#.W8k9ThNKgy9 Sanghera, J. (2005). Unpacking the trafficking discourse. In K. Kempandoo (Ed.), New perspectives on migration, sex work, and human rights (pp. 3–24). Boulder, CO: Paradigm. Schwartztol, L. (2017). The role of courts in eliminating the racial impact of crimi- nal justice debt. National Center for State Courts. Retrieved from http://www .ncsc.org/~/media/Microsites/Files/Trends%202017/Eliminating-Racial-Impact -Trends-2017.ashx Senate Select Committee on Intelligence. (2014, December 3). Committee study of the Central Intelligence Agency’s Detention and Interrogation Program. United States Senate. Retrieved from https://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf https://www.ccsu.edu/imrp/Publicatons/Files/May%202016%20Connecticut%20Racial%20Profiling%20Report.pdf https://www.ccsu.edu/imrp/Publicatons/Files/May%202016%20Connecticut%20Racial%20Profiling%20Report.pdf https://www.ccsu.edu/imrp/Publicatons/Files/May%202016%20Connecticut%20Racial%20Profiling%20Report.pdf https://rights4girls.org/wp-content/uploads/r4g/2015/02/2015_COP_sexual-abuse_layout_web-1.pdf https://rights4girls.org/wp-content/uploads/r4g/2015/02/2015_COP_sexual-abuse_layout_web-1.pdf https://rights4girls.org/wp-content/uploads/r4g/2015/02/2015_COP_sexual-abuse_layout_web-1.pdf http://saldef.org/news/sikh-american-veteran-assaulted-by-police-officer-in-illinois/#.W8k9ThNKgy9 http://saldef.org/news/sikh-american-veteran-assaulted-by-police-officer-in-illinois/#.W8k9ThNKgy9 http://www.ncsc.org/~/media/Microsites/Files/Trends%202017/Eliminating-Racial-Impact-Trends-2017.ashx http://www.ncsc.org/~/media/Microsites/Files/Trends%202017/Eliminating-Racial-Impact-Trends-2017.ashx http://www.ncsc.org/~/media/Microsites/Files/Trends%202017/Eliminating-Racial-Impact-Trends-2017.ashx https://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf Varghese et al. 737 Shaked-Schroer, N., Costanzo, M., & Marcus-Newhall, A. (2008). Reducing racial bias in the penalty phase of capital trials. Behavioral Sciences & the Law, 26, 603–617. doi:10.1002/bsl.829 Shared Hope International. (2016). Building a legal framework of protection for the nation’s children. Protected Innocence Challenge Toolkit 2016. Retrieved from http://sharedhope.org/wp-content/uploads/2016/11/PIC2016REPORT2.pdf Skaggs, S. (2019). Atypical jobs in psychology: Interview of judge Michael O. Miller. Psychological Services. Advance online publication. doi:10.1037/ser0000377 Solis, C., Portillos, E. L., & Brunson, R. K. (2009). Latino youths’ experiences with and perceptions of involuntary police encounters. The Annals of the American Academy of Political and Social Science, 623(1), 39–51. doi:10.1177/0002716208330487 Stinson, P. M. (2017, May 31). Charging a police officer in fatal shooting case is rare, and a conviction is even rarer. New York Daily News. Retrieved from http:// www.nydailynews.com/newyork/convicting-fatal-shooting-case-rare-event -article-1.3210936 Stumpf, J. (2006). The crimmigration crisis: Immigrants, crime, and sovereign power. American University Law Review, 56, 367–419. Retrieved from http:// digitalcommons.wcl.american.edu/aulr/vol56/iss2/3 Subramanian, R., & Shames, A. (2013). Sentencing and prison practices in Germany and the Netherlands: Implications for the United States. Retrieved from https:// www.prisonpolicy.org/scans/vera/european-american-prison-report-v3.pdf Subramanian, R., Riley, K., & Mai, C. (2018). Divided justice: Trends in Black and White jail incarceration, 1990–2013. Retrieved from http://www.safetyandjusti- cechallenge.org/wp-content/uploads/2018/02/Divided-Justice-full-report.pdf Sun, I. Y., & Wu, Y. (2015). Arab Americans’ confidence in police. Crime & Delinquency, 61, 483–508. doi:10.1177/0011128711420103 Sun, I. Y., Wu, Y., & Poteyeva, M. (2011). Arab Americans’ opinion on counterter- rorism measures: The impact of race, ethnicity, and religion. Studies in Conflict & Terrorism, 34, 540–555. doi:10.1080/1057610X.2011.578550 Swaine, J., & McCarthy, C. (2017, January 8). Young Black men faced highest rates of US police killings in 2016. The Guardian. Retrieved from https://www.theguardian .com/us-news/2017/jan/08/the-counted-police-killings-2016-young-black-men The President’s Task Force on 21st Century Policing. (2015). Final report of the President’s Task Force on 21st Century Policing. Retrieved from https://cops .usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf Thompson, M. (2019). Children at the border: Existing tools for effective advocacy. Law and Contemporary Problems, 82, 217–242. Retrieved from https://lcp.law .duke.edu/article/note-thompson-vol82-iss2/ Toporek, R. L., & Daniels, J. (2018). American Counseling Association Advocacy Competencies-Updated. Retrieved from https://www.counseling.org/docs/default -source/competencies/aca-2018-advocacy-competencies.pdf Tow Youth Justice Institute. (2017). A journey through Connecticut’s juvenile justice system reform. Retrieved from https://www.newhaven.edu/_resources /documents/lee-college/institutes/tow-youth-justice-institute/newsletter/tyji -newsletter-sept-9-26-17.pdf http://sharedhope.org/wp-content/uploads/2016/11/PIC2016REPORT2.pdf http://www.nydailynews.com/newyork/convicting-fatal-shooting-case-rare-event-article-1.3210936 http://www.nydailynews.com/newyork/convicting-fatal-shooting-case-rare-event-article-1.3210936 http://www.nydailynews.com/newyork/convicting-fatal-shooting-case-rare-event-article-1.3210936 http://digitalcommons.wcl.american.edu/aulr/vol56/iss2/3 http://digitalcommons.wcl.american.edu/aulr/vol56/iss2/3 https://www.prisonpolicy.org/scans/vera/european-american-prison-report-v3.pdf https://www.prisonpolicy.org/scans/vera/european-american-prison-report-v3.pdf http://www.safetyandjusticechallenge.org/wp-content/uploads/2018/02/Divided-Justice-full-report.pdf http://www.safetyandjusticechallenge.org/wp-content/uploads/2018/02/Divided-Justice-full-report.pdf https://www.theguardian.com/us-news/2017/jan/08/the-counted-police-killings-2016-young-black-men https://www.theguardian.com/us-news/2017/jan/08/the-counted-police-killings-2016-young-black-men https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf https://lcp.law.duke.edu/article/note-thompson-vol82-iss2/ https://lcp.law.duke.edu/article/note-thompson-vol82-iss2/ https://www.counseling.org/docs/default-source/competencies/aca-2018-advocacy-competencies.pdf https://www.counseling.org/docs/default-source/competencies/aca-2018-advocacy-competencies.pdf https://www.newhaven.edu/_resources/documents/lee-college/institutes/tow-youth-justice-institute/newsletter/tyji-newsletter-sept-9-26-17.pdf https://www.newhaven.edu/_resources/documents/lee-college/institutes/tow-youth-justice-institute/newsletter/tyji-newsletter-sept-9-26-17.pdf https://www.newhaven.edu/_resources/documents/lee-college/institutes/tow-youth-justice-institute/newsletter/tyji-newsletter-sept-9-26-17.pdf 738 The Counseling Psychologist 47(5) Treatment Advocacy Center. (2015). Overlooked in the undercounted. Retrieved from http://www.treatmentadvocacycenter.org/overlooked-in-the-undercounted Trump, President of the United States v. Hawaii Court of Appeals, No. 17–965 (9th Cir. 2018). University of Central Arkansas. (2018). UCA partners with middle school to provide school psychology services. UCA News. Retrieved from http://uca.edu/news/uca -partners-with-middle-school-to-provide-school-psychology-services/ U.S. Census Bureau. (2017, July 1). Quick facts. Retrieved from https://www.census .gov/quickfacts/fact/table/US/PST045217#PST045217 U.S. Citizenship and Immigration Services. (2014). INS records for 1930s Mexican repatriations. United States Department of Homeland Security. Retrieved from https://www.uscis.gov/history-and-genealogy/our-history/historians-mailbox /ins-records-1930s-mexican-repatriations U.S. Customs and Border Protection. (2016, October 18). Southwest border unaccom- panied alien children statistics FY 2016. Retrieved from https://www.cbp.gov /newsroom/stats/southwest-border-unaccompanied-children/fy-2016 U.S. Department of Health and Human Services. (2017, August). Mental health myths and facts. Retrieved from https://www.mentalhealth.gov/basics/mental-health -myths-facts U.S. Department of Justice. (2013). Immigration offenders in the Federal Justice System, 2010. Retrieved from https://www.bjs.gov/content/pub/pdf/iofjs10.pdf U.S. Department of Justice, Civil Rights Division. (2015). Investigation of the Ferguson Police Department. Retrieved from https://www.justice.gov/sites /default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_ department_report.pdf U.S. Department of Justice, Federal Bureau of Prisons. (2018). Transgender offender manual (Publication No. 5200.04 CN-1). Retrieved from https://www.bop.gov /policy/progstat/5200-04-cn-1.pdf U.S. Department of State. (2018, June). Trafficking of person report. Retrieved from https://www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons -Report.pdf U.S. Sentencing Commission (2016). Recidivism among federal offenders: A com- prehensive overview. Retrieved from https://www.ussc.gov/sites/default/files/pdf /research-and-publications/research-publications/2016/recidivism_overview.pdf U.S. Sentencing Commission. (2017a). Demographic differences in sentencing: An update to the 2012 booker report. Retrieved from https://www.ussc.gov/sites /default/files/pdf/research-and-publications/research-publications/2017 /20171114_Demographics.pdf U.S. Sentencing Commission. (2017b). Overview of mandatory minimum penalties in the federal criminal justice system. Retrieved from https://www.ussc.gov/sites /default/files/pdf/research-and-publications/research-publications/2017 /20170711_Mand-Min-Figures.pdf United States v. City of Cleveland, No. 1:15 CV 1046 (N.D. Ohio 2015). United States v. City of Ferguson Eastern District of Missouri, Case 4:16 CV00180 (2016). http://www.treatmentadvocacycenter.org/overlooked-in-the-undercounted http://uca.edu/news/uca-partners-with-middle-school-to-provide-school-psychology-services/ http://uca.edu/news/uca-partners-with-middle-school-to-provide-school-psychology-services/ https://www.census.gov/quickfacts/fact/table/US/PST045217#PST045217 https://www.census.gov/quickfacts/fact/table/US/PST045217#PST045217 https://www.uscis.gov/history-and-genealogy/our-history/historians-mailbox/ins-records-1930s-mexican-repatriations https://www.uscis.gov/history-and-genealogy/our-history/historians-mailbox/ins-records-1930s-mexican-repatriations https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 https://www.mentalhealth.gov/basics/mental-health-myths-facts https://www.mentalhealth.gov/basics/mental-health-myths-facts https://www.bjs.gov/content/pub/pdf/iofjs10.pdf https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf https://www.bop.gov/policy/progstat/5200-04-cn-1.pdf https://www.bop.gov/policy/progstat/5200-04-cn-1.pdf https://www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf https://www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170711_Mand-Min-Figures.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170711_Mand-Min-Figures.pdf https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170711_Mand-Min-Figures.pdf Varghese et al. 739 Varghese, F. P., Nolan, J., Bihm, E., Salagame, K. K., Khanna, R., & Ali, S. R. (2017). Transformational leadership and Asian Indian values: Duty, self- less service, and non-violence. The Counseling Psychologist, 45, 810–829. doi:10.1177/0011000017723080 Varghese, F. P., Hardin, E. E., & Bauer, R. L. (2009). Factors influencing the employ- ability of Latinos: The roles of ethnicity, criminal history, and qualifications. Race and Social Problems, 1, 171–181. doi:10.1007/s12552-009-9014-2 Victims of Trafficking and Violence and Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, codified as amended at USC §101–113. Walker, S., Spohn, C., & DeLone, M. (2018). The color of justice: Race, ethnicity, and crime in America (6th ed.). Boston, MA: Cengage Learning. Williams, I. (2011). Arizona senate bill 1070: State sanctioned racial profiling? Journal of the Legal Profession, 36, 269–284. Retrieved from https://heinonline .org/HOL/LandingPage?handle=hein.journals/jlegpro36&div=12&id=&page= Wilper, A. P., Woolhandler, S., Boyd, J. W., Lasser, K. E., McCormick, D., Bor, D. H., & Himmelstein, D. U. (2009). The health and health care of US prisoners: Results of a nationwide survey. American Journal of Public Health, 99, 666–672. doi:10.2105/ajph.2008.144279 Wilson, B. D. M., Jordan, S. P., Meyer, I. H., Flores, A. R., Stemple, L., & Herman, J. L. (2017). Disproportionality and disparities among sexual minority youth in cus- tody. Journal of Youth and Adolescence, 46, 1547–1561. doi:10.1007/s10964- 017-0632-5 Wistrich, A. J., & Rachlinski, J. J. (2017). Implicit bias in judicial decision making how it affects judgment and what judges can do about it. In S. Redfield (Ed.), Enhancing justice: Reducing bias (Chapter 5). Retrieved from https://papers .ssrn.com/sol3/papers.cfm?abstract_id=2934295 Wright, J. P., Dietrich, K. N., Ris, M. D., Hornung, R. W., Wessel, S. D., Lanphear, B. P., Mona, H., & Rae, M. N. (2008). Association of prenatal and childhood blood lead concentrations with criminal arrests in early adulthood. PLoS Med, 5, 732–740. doi:10.1371/journal.pmed.0050101 Author Biographies Femina P. Varghese, PhD, is an associate professor and the Director of Training of the Counseling Psychology Ph.D. Program at the University of Central Arkansas. She investigates risk and protective factors, particularly the role of work, in recidivism in justice-involved adults and youth. She also studies the effectiveness of telehealth modalities. She is past President of the American Psychological Association Division 18: Psychologists in Public Service and also served as Chair of its Criminal Justice section. Tania Israel, PhD, is a professor of Counseling, Clinical, and School Psychology at the University of California, Santa Barbara. As Director of Project RISE (Research and Interventions for Sexual and Gender Minority Empowerment), she conducts research relevant to scholarship, policy, and practice on interventions to support the https://heinonline.org/HOL/LandingPage?handle=hein.journals/jlegpro36&div=12&id=&page= https://heinonline.org/HOL/LandingPage?handle=hein.journals/jlegpro36&div=12&id=&page= https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2934295 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2934295 740 The Counseling Psychologist 47(5) mental health and well-being of LGBTQ individuals and communities. Dr. Israel is a fellow of the American Psychological Association and a past President of the Society of Counseling Psychology. Guy Seymour, PhD, is an Afro Caribbean forensic and public safety psychologist in private practice in Decatur, Georgia. The founding director of the Center for Multicultural Training in Psychology at Boston City Hospital and Boston University School of Medicine and the first Chief Psychologist of the Atlanta Police Department, he is a life member both of the American Psychological Association and of the International Association of Chiefs of Police. He has been a member of the National Organization of Black Law Enforcement Executives and of the Association of Black Psychologists and he served as Co-Director of the Crisis Response team for the 1996 Centennial Olympic Games and as Transit Police Crisis Response Coordinator for the 2004 Democratic National Convention. Rachel Becker Herbst, PhD, is an assistant professor in the University of Cincinnati College of Medicine and the lead psychologist over integrated behavioral health ser- vices in pediatric primary care at Cincinnati Children’s Hospital Medical Center. Dr. Herbst provides direct patient care and leads scholarly and advocacy efforts to enhance the capacity of pediatric primary care providers and community partners to provide effective, family-centered health promotion services that address racial, eth- nic, and socio-economic disparities. Lauren G. Suarez, PhD, is a staff psychologist at the Bruce W. Carter VA Medical Center. She oversees the pain psychology program at the Whole Health Center for Pain Management. In addition, she is part of the Posttraumatic Stress Disorder Clinical Team and specializes in military sexual trauma. Dr. Suarez serves as adjunct faculty to the University of Miami School of Education and Human Development. Her areas of clinical and scholarly interest include trauma, holistic health, and social justice. Candice Hargons, PhD, is an assistant professor at the University of Kentucky, where she studies sex, social justice, and leadership, all with a love ethic. She is the founding director of the Center for Healing Racial Trauma. 
work_hraft23hizcr7eivy5ditwkt6a	----	Family Conferencing in South Australia and Re-offending: Preliminary Results from the SAJJ Project YOUTH JUSTICE CONFERENCING AND RE-OFFENDING* Hennessey Hayes Kathleen Daly School of Criminology and Criminal Justice Griffith University Brisbane, Queensland 4111 Australia Address all correspondence to H Hayes: h.hayes@mailbox.gu.edu.au +61 7 3875 5781 (campus office) +61 7 3314 8594 (home office) + 61 4 00 832 573 (mobile) +61 7 3875 5608 (fax) This document is the manuscript that was submitted to the publisher in February 2003. Please refer to the published version: Hayes, H. and K. Daly (2003) ‘Youth justice conferencing and re-offending.’ Justice Quarterly 20(4): 725-64. * This research was funded in part by a grant from the Australian Research Council (1998- 99). We thank Brigitte Bouhours for research assistance, and Lorraine Mazerolle, Paul Mazerolle and the reviewers for their helpful comments on earlier versions. http://www.griffith.edu.au/school/ccj/kdaly_docs/kdpaper17.pdf 1 YOUTH JUSTICE CONFERENCING AND RE-OFFENDING Abstract The literature on restorative justice and re-offending consists largely of comparative analyses of justice system interventions and re-offending (e.g., comparisons of restorative justice conferencing and court by using experimental designs or by conducting meta-analyses) and suggests small but significant differences or no differences. We take an alternative approach in assessing the impact of restorative justice conferencing on re-offending, using data from the South Australia Juvenile Justice (SAJJ) Conferencing Project and police records. Drawing from conference observations and official police data, we explore the relative importance of conference dynamics and offender characteristics in predicting future offending. We find that in addition to well-known predictors of re-offending, such as previous offending and social marginality, when youthful offenders were observed to be remorseful and when the outcome was reached by genuine consensus, young people were less likely to re-offend. These findings suggest that when attention is focused on the claimed benefits of conferencing in its own right, it is possible to identify those elements of restorative processes that are associated with reductions in crime. The results from the SAJJ researchers' observations were generally confirmed in separate analyses of the coordinators' and police officers' conference observations. The SAJJ observational and interview data also show that of the five groups in the conference process -- coordinators, police officers, young people (offenders), victims, and the SAJJ observers -- the victims were least able to correctly predict a young person's post-conference offending and most likely to wrongly think the young person would re-offend. Despite this, close to 90% of victims recommended the government keep conferencing in the justice system. 2 YOUTH JUSTICE CONFERENCING AND RE-OFFENDING Any new criminal justice practice is confronted by a disarmingly simple question, "does it work"? When asking this question, policymakers and others want to know if a practice reduces re-offending or if it has some constructive impact on those caught up in the criminal justice system. Although criminologists have long recognized that research on crime control, justice practices, and re-offending is beset with conceptual, measurement, and interpretive problems, the politics of criminal justice demands evidence of this sort. A recent criminal justice innovation -- conferencing in the response to youth crime -- has been subject to intensive research, although the focus of most studies has been victims' and offenders' perceptions of what happened in a conference, more so than its longer-term effects such as victim recovery and crime reduction. This is understandable in that conferencing is a recent development, having emerged during the 1990s in New Zealand, Australia, North America, England, among other countries. This paper reviews the theoretical claims and empirical studies of conferencing and re-offending, considers problems of measuring re-offending, and presents new data on conferencing and re-offending from the South Australia Juvenile Justice (SAJJ) project. We focus largely, although not exclusively, on developments in Australia and New Zealand because these countries have utilized conferences longer than any other and within a legislative framework. YOUTH JUSTICE CONFERENCING Youth justice conferencing in Australia followed developments in New Zealand after passage of the Children, Young Persons and their Families Act in 1989. South Australia was the first Australian jurisdiction to establish a legislative basis for conferencing (1993) and to use conferences routinely in youth justice cases (1994). Interest in conferencing grew rapidly in the 1990s (see reviews in Bargen, 1996; Daly, 2001a), and by the end of the decade, all eight Australian states and territories established conferencing, and all but two jurisdictions (Victoria and the ACT) have legislated schemes (Daly & Hayes, 2001). Although there are significant differences in how conferences are organized and administered in Australia and New Zealand1, it is possible to characterize what happens, or 1 Variation in conferencing is greater if we include the police-run model of scripted conferencing, the prevalent model in North America and England (see Young, 2001). In Australia and New Zealand the prevalent model normally has at least two professionals present (a police officer and conference coordinator). 3 ideally, is supposed to happen when it is used as a diversion from court prosecution.2 Upon referral by a police officer or magistrate, a young person who has admitted to an offense, his/her parents or caregivers, the victim and his/her supporters, any other relevant parties to the offense, a police officer and conference facilitator (or coordinator/convenor) come together to discuss the offense. There are three phases in a conference, which normally ranges in length from 60 to 90 minutes: introductory, a discussion of the offense and its impact, and a discussion of the agreement. In the introductory phase, the facilitator introduces the participants and outlines what the aims and ground rules are for the conference, its legal status, and the expected roles and responsibilities of those in the room. Most participants receive this information prior to the conference, during the "intake" process. During the introduction, however, the facilitator emphasizes how the conference will proceed and what the conference should achieve – e.g., that everyone will be given an opportunity to discuss the offense and its impact, as well as negotiate a suitable response to it. In the second phase, the police officer reads an official account of the incident, and the young person (offender) describes what happened, as does the victim(s).3 There is a general discussion of the immediate effect of the offense on the young person, victim, and their supporters; and victims may ask offenders questions such as "Why me?" and "Will this happen to me again?" A typical outcome (although not universal) from the discussion phase is an apology by the offender to the victim. In the third phase, conference participants propose and discuss ways for the young person to "make up for the offense," and particular emphasis is given to negotiating an outcome that is agreeable to everyone in the room. In Queensland, for example, the most common way young offenders "make amends" is to offer a verbal apology. Other outcomes, such as direct restitution, are less common and occur in 2 Conferences are also used to provide pre-sentencing advice to judges and magistrates; currently, this option is utilized more frequently in New Zealand than Australia (see Consedine & Bowen, 1999). 3 The sequence of a police officer's reading of the case information and the offender's version of events varies within and across Australian and New Zealand jurisdictions. Victim presence in conferences also varies: in high-volume jurisdictions such as New Zealand and South Australia, victims are typically present in 50 to 60% of conferences, whereas in low-volume jurisdictions such as Queensland, victims are present in over 90% (Hayes et al. 1998). In South Australia when actual victims do not attend conferences, their views may be given by a family member (especially when victims are young), or they may be represented by a Victim Support Services worker. There is also significant jurisdictional variation in which people, at a minimum, must agree to an outcome. In South Australia, it is only the police officer and young person. See Daly and Hayes (2001) for a review of jurisdictional variation in Australia. 4 only about a quarter of all cases (Hayes, Prenzler & Wortley, 1998).4 During the conference, the facilitator is expected to lead the discussion and ensure that everyone has a chance to speak, and the police officer is expected to provide an authoritative legal presence and to describe the likely effects of future offending for the young person. Both professionals are to ensure that the outcome is appropriate and not excessive. While admitting to the offense (i.e., taking responsibility for wrongdoing) is the primary eligibility criterion for referral to a restorative justice conference, police officers consider other factors when exercising their discretion over how to proceed. In all Australian jurisdictions where conferencing is legislated, police officers should consider the nature of the offense and the young person's prior offending history. There is a broad range of offenses that may be conferenced. In some jurisdictions, conferencing tends to be reserved for less serious crimes (e.g., Western Australia). Other states, such as South Australia, tend to conference more serious crimes, including sexual offenses. Prior offending also is a factor. A conference is viewed as the preferred diversionary option for young offenders with either no prior offenses or only minor offenses on record. However, there remains considerable variation in the type of offenders referred to conference, with some jurisdictions referring serious repeat offenders (Daly & Hayes, 2001). THEORISING CONFERENCING AND RE-OFFENDING There are several ways of theorising the links between conferencing and re-offending, and they can be used in combination. The most developed is Braithwaite's (1989) theory of reintegrative shaming, which he developed before conferencing was introduced in New Zealand and which was originally based on the idea that some societies have more effective methods of social control than others because they "shame reintegratively" in that they "follow shaming ceremonies with ceremonies of repentance and reacceptance" (p. 74). Applying these ideas to conferencing, Braithwaite and Mugford (1994: 142) proposed that (1) an illegal act, not an offending person, should be denounced or "stigmatized" and (2) the people who would be most effective in inducing shame in youthful offenders would be significant others in their lives (for example, a parent or favoured aunt). Following Garfinkel (1956), they depicted contemporary criminal justice practices as status degradation 4 Some critics of restorative justice express concern over the potential for young offenders to receive harsher outcomes rendered by vengeful victims. Common outcomes in Queensland and South Australian conferences, however, would seem to challenge this claim (Hayes et al., 1998; Daly, 2003a). 5 ceremonies, which were about "the sequence disapproval-degradation-exclusion". They argued that reintegration ceremonies, which were about "the sequence disapproval- nondegradation-inclusion" (pp. 142) had a greater capacity to reduce re-offending. This comes about for a variety of reasons, but central among them is that shaming-reintegration ceremonies encourage "law-respecting, other-respecting, and self-respecting" identities in offenders (p. 148, see also, p. 141).5 The concept of reintegrative shaming was first linked to police-run conferencing in Wagga, Wagga, New South Wales in 1991; and it continues to enjoy popularity in police-run conferencing schemes in North America and England (see Young, 2001). Although the concept of reintegrative shaming is thought to be the theory underpinning restorative justice,6 the two should not be conflated. In general, reintegrative shaming focuses on how a conference may affect an offender. Restorative justice assumes a broader set of interactions between an offender and victim (and their supporters) where the recognition of the "other" is expected to encourage a more empathic orientation in the offender and a more sympathetic orientation by the victim to the offender's situation. This distinction is important in understanding the different emphases taken in research on conferencing. In Australia, for example, the Reintegrative Shaming Experiments (RISE) project is testing the theory of reintegrative shaming, but the South Australia Juvenile Justice (SAJJ) project is exploring the dynamics of "restorativeness" between victims, offenders, and their supporters. Both projects are also interested in the degree to which procedural justice features in conferences (RISE and SAJJ are discussed in more detail below). During the 1990s, arguments for the benefits of conference over court in reducing re- offending were augmented with Tyler's (1990) work on procedural justice. There is a good deal of fluidity in how procedural justice is defined and measured, owing to its popularity and applicability to many decision-making sites, the criminal justice system being just one. In brief, Tyler argued that the legal process itself was important to people, independent of its outcome. Indicators of procedurally just processes include suspects (or defendants) stating 5 Since this early work, Braithwaite (1999) developed a more comprehensive set of arguments on the relationship of reintegrative shaming, restorative justice, and crime reduction; and with other colleagues (Ahmed et al. 2001), he revised the theory to better articulate the relationship between the emotion of shame and the practice of shaming. 6 Restorative justice covers a diverse array of practices and organisational contexts. For a review of international debates on definition and variation in practice, see Miers (2001); for a review of its varied strands and antecedents, see Daly and Immarigeon (1998). 6 their case (having voice) and being treated with dignity and respect (standing), and decision- makers viewed as trustworthy and neutral. When legal processes are viewed as procedurally just (in other words, as "fair" and handled by competent and trustworthy authorities), there is an affirmation of the legal order and a commitment to law-abiding behavior. These and related arguments on defiance theory (Sherman, 1993) were taken up in the RISE project. In addition to the psychological dynamics of reintegrative shaming, RISE researchers hypothesized that elements of procedural justice would be more frequent in conferences than in court, and that this, in turn, would encourage even greater law-abiding behavior for conference than court offenders. A variant on the procedural justice and reintegration themes is seen in the development of family group conferencing in New Zealand (Maxwell & Morris, 1993). Growing out of Maori political challenges to the dominant white juvenile and child protection system in the 1980s came the idea that a Maori youth's family group should have greater voice and decision-making control than professionals. The implicit idea behind elevating lay actors over legal authorities or social workers is that a family social group not only had some degree of collective responsibility for the lawbreaker's behavior, it could also render better, perhaps more culturally appropriate decisions. Such decisions, in turn, might dissuade a youth from future offending, not because of his or her belief in the legitimacy of the (white) legal system, but because a family group has taken a more central role in the decision-making process. A final strand has featured for some time in research on reparation, diversion, and restitution schemes in North America, England, and Europe, which include mediated meetings between victims and offenders (see, e.g., Dignan, 1992; Marshall, 1992; Messmer & Otto, 1992; Schneider, 1986; Umbreit & Coates, 1993).7 Several claims are made for the enhanced benefits of alternative (that is, non court or non custody) responses to crime: (1) by diverting offenders from prosecution or from custody, fewer will be subject to the stigmatizing effects of the criminal process (or secondary deviance); (2) when offenders meet the people they victimized, they have a "more powerful reformative experience" (Marshall, 1992: 18); and (3) when offenders are given the chance to make up for their offense by paying money or doing community work, they may "re-establish individual self-esteem" and 7 Some argue against viewing restorative justice as confined to mediation, preferring instead to see it as a "fully- fledged systemic alternative" (Walgrave, 1999: 150). We bypass these and other definitional debates in the interest of broadly sketching the lines of argument in the field. 7 become "socially integrat[ed]" into their local community (Messmer & Otto, 1992: 2-3 ). This strand gives greater attention than the others to the benefits of mediation and negotiation in the justice process. While there is a rich set of claimed benefits of conferencing (or related reparative and mediation schemes of the 1980s and 1990s) over regular court processes, studies to date have mainly focused on participant satisfaction and perceived fairness of the process rather than its impact on re-offending. In fact, some argue that conferencing (or related schemes) were not introduced with the explicit intention of reducing re-offending, but with other aims and outcomes in mind (for example, bringing victims into the justice process, holding offenders accountable, rendering fairer justice and more satisfied participants); thus, they suggest that conferences should be assessed in those terms (see, e.g., Dignan, 1991: 37 on the Kettering scheme in England; Morris & Maxwell, 1997: 4 on family group conferencing in New Zealand). These scholars propose, further, that if the impact of alternative practices shows few or no differences in re-offending compared to a standard court process, this signals success, not failure in using a less intrusive and potentially less stigmatising form of legal intervention. Finally, some point out that while restorative language may exist in legislation setting forth alternatives, when such programs or practices are put into operation, they may be little different than regular court routines (for example, there may be low rates of victim participation, or there may be insufficient resources for adequate preparation and follow through of conference outcomes). Thus, we may expect to see no differences in re-offending (Morris & Gelsthorpe, 2000: 25-29; see also Walgrave, 1999). We review the empirical literature on conferencing and re-offending shortly, but before we do, we consider problems of measuring conferencing and re-offending. MEASURING THE IMPACT OF COURT AND CONFERENING ON RE-OFFENDING Three major problems face researchers in measuring the impact of court and conferencing on re-offending: problems of comparison, differences in when offenders take responsibility for their offending, and other temporal differences. Problems of comparison. In analyzing different types of legal interventions and re- offending, it is uncertain what should be studied or compared. For example, in youth justice, 8 if we compare the effect of court and conference interventions, we overlook other possible legal interventions such as formal cautions or no police action at all. Furthermore, we overlook the potential to investigate a new legal intervention in its own right. If we elect the comparative route, we run into problems of sample selection bias by the police or other officials who may consider some individuals to be "more appropriate" than others for the new alternatives. Although such problems can be addressed with randomized field experiments, these too are not without problems of generalizability. Differences in when offenders take responsibility. A central, if overlooked, problem in the court- conference comparative literature is that conferencing (or other diversion schemes) are available only to those youthful offenders who have admitted to an offense (or in New Zealand, who choose "not to deny"). If we ignore, for the moment, field experimental designs and focus instead on studies of conference and court in natural settings, we find that research on the effects of conferences are of offenders who have decided early on to admit responsibility for an offense. Members of the conference group may well differ from those in a court group in that the latter may not initially admit to the offense, although they may later admit after several court appearances. Therefore, the conference group is already distinctive from the court group in ways that are likely to be theoretically related to re-offending. If, hypothetically, members of the court and conference groups were similar in culpability for their offending, but those in the conference group make an admission at an earlier point in the legal process, we might assume that they have moved further along in a reformation process. This problem may be overcome in field experimental designs (such as the RISE project), where admitted offenders are randomly assigned to court or to a diversionary conference. However, and this is an essential point, to be eligible for random assignment to court or conference, an offender must first admit to the offense. Experiment- eligible offenders who are assigned to court may therefore differ from court offenders who do not admit early on. It is possible that the comparison of admitted court and conference youth in the RISE project partly explains the similarity in rates of re-offending for the two groups for three of the four types of offenses studied (see discussion below). Temporal differences in legal intervention. The temporal differences in taking responsibility for an offense affect the window of time for measuring re-offending. Again, let us focus on studies of conference and court in natural settings, not experimental field designs. Imagine for example, two male offenders who were both equally involved in a burglary early in January. One decides to admit to the offense soon after, and his case is diverted to 9 conference, while the other decides to plead not guilty. Based on data from South Australia, the conference case would likely be disposed of in 6 to 8 weeks, that is, by March; but if the case went to court, it would likely take longer, about 3 to 6 months, perhaps not until April. Let us imagine that the two youths are involved in a second burglary in the middle of March. For the court youth, the offense occurred during the pre-disposition period and would not count as an offense; but for the conference youth, it occurred after the conference and thus would count as an offense. With temporal differences in how conference and court cases are handled in natural settings, there are problems in comparing the two. These may be overcome with using field experimental designs, but as we suggest in the discussion of the RISE project below, this comes at a price of selecting the right start date for counting re- offending. To date, research on conferencing and re-offending has largely been of comparing conferences (or other interventions) with court. While comparative studies have value, they are limited, even with the use of randomised field experiments. We propose that research on re-offending may benefit from a focus on within-intervention variation with the aim of identifying variation in claimed features of the conference process with variation in offending. Scholars have long recognised the many problems of defining and measuring re- offending (Maltz, 1984). Despite these problems, Gendreau, Little and Goggin's (1996) meta-analysis of 131 studies of adult re-offending suggests general patterns. They identified re-offending predictors they termed "static" (the things that cannot be changed) and "dynamic" (the things that can be changed). The strongest static predictors were age/gender/race and criminal history, and the strongest dynamic predictors were "criminogenic need" factors, which they defined as antisocial personality, antisocial companions, interpersonal conflict, antisocial attitudes, and substance abuse (Gendreau et al., 1996: 583-584). Ideally, in analyzing conferencing and re-offending, one would want to determine the predictive power of static factors (age, gender, race, prior offense history) and dynamic factors such as an offender's remorse, positive victim-offender movement, the effect of perceived fairness of treatment, and other features of the conference process that may play a role in modifying an offender's future behavior. 10 RESEARCH ON RESTORATIVE JUSTICE, CONFERENCING, AND RE-OFFENDING Two recurring findings emerge from the literature on conferencing (and restorative justice generally). First, with some exceptions (early work in New Zealand by Maxwell & Morris, 1993), there are generally high levels of satisfaction with the process and outcomes by victims and offenders (Braithwaite, 1999; Daly, 2001a; Kurki, 2001; Marshall, 1999; Miers, Maguire, Goldie, Sharpe, Hale, Netten, Uglow, Doolin, Hallam, Enterkin & Newburn, 2001; Umbreit, Coates & Vos, 2001). Latimer, Dowden and Muise's (2001: 9, 11) meta- analysis of 22 studies found significantly higher levels of satisfaction for victims and offenders who participated in restorative processes compared to regular justice system practices. Satisfaction is a notoriously fuzzy concept with varied referents for victims and offenders, but a common denominator in the restorative justice literature is participants' sense of the fairness of the process and the outcome, and having a say in the decision-making process (van Ness & Schiff, 2001: 50; Umbreit et al., 2001: 131-2). This relates to a second recurring finding, especially in studies of conferencing in Australian states and territories: there are high levels of observed procedural justice (by researchers, police officers, and coordinators sitting in the conference) and perceived procedural justice by victims and offenders (Daly, 2001a). RISE researchers say that higher levels of perceived procedural justice are registered by conference than court offenders (Strang, Barnes, Braithwaite & Sherman, 1999), although Kurki's (2001) review of the RISE data suggests these conclusions are somewhat overdrawn in that court and conference differences vary by offense categories and are not consistently strong. How being "satisfied" with a justice activity or judging it to be "fair" affects offenders is uncertain. Latimer et al.'s (2001: 14) meta-analysis suggests that there are greater reductions in offending for those in "restorative justice programs" compared to others. However, mean effect size for the 32 tests examined was .07 (SD = .13), and effect sizes ranged from -.23 to .32. This seems illustrative of the variability in research findings that compare restorative approaches to conventional "controls" (e.g., Braithwaite, 1999; Dignan, 1991; McCold & Wachtel, 1998; McGarrell, 2001; Miers et al., 2001; Sherman, Strang & Woods, 2000). There are many ways of assessing the effects of restorative programs on re- offending. In this paper, we explore the variable effects of conferencing on re-offending, rather than compare conferencing with other interventions. 11 In Australia and New Zealand, two analytical approaches have been used. One approach, employed in the RISE project, utilises the comparative method in a field experiment design, in which admitted offenders are randomly assigned to court and conference (Sherman et al., 2000). A recent New South Wales study also used the comparative method in a retrospective study of official records (Luke & Lind, 2002). A second approach, employed in New Zealand research by Maxwell and Morris (2001) and in the SAJJ project results presented in this article, analyze variability in the conference process itself, including offenders' orientations to the conference and perceptions of how they were treated, in predicting re-offending. We review the findings from the three studies before turning to the SAJJ project. RISE study in Canberra. The RISE project gathered data on four types of offenses and offenders: drink drivers of all ages, violent offenders up to age 29, juvenile property offenders, and juvenile property offenders having organisational victims (shoplifters). Cases meeting the project criteria (including the offender having admitted to the offense) were randomly assigned to court or conference. The project study site was Canberra (the Australian federal capital), where data were gathered from mid-1995 to mid-2000; the Canberra conferencing model is police-run (see Strang et al., 1999). Sherman et al. (2000) report that for one group of offenders, those charged with violent offenses, there was a significant reduction in the average rate of offending in the post-referral period, compared to those who went to court. However, there were no significant court-conference differences in rates of re-offending for the drink driving, property, and shoplifting offenders. We note several problems with the RISE findings. One, discussed above and which features generally in randomized field experiments, is that members of the court and conference groups are similar in ways that are theoretically related to re-offending: they admitted to an offense early on. A second problem is that the observational window in measuring re-offending is 12 months after an offender was referred to court or a conference. In other words, the RISE findings are of the effects of referral to court or conference, not of the effect of the court or conference itself. The time between referral and intervention ranges from about 2 to 4 months, depending on the type of offense and site of disposition (Sherman 12 et al., 2000: 10, footnote 2).8 While the authors give good measurement reasons for this choice, this rationale comes at the price of making a sensible interpretation of the impact of court or conference on an offender's rate of re-offending. Specifically, during the 2- to 4- month window of time, an offender who was assigned to a conference may have offended several times, then attended the conference, and then not re-offended afterwards. The RISE recidivism study would count this conference a "failure" (in re-offending terms) when it was a success. It is essential, we think, to know the rates of offending for those offenders assigned to a court or conference, after they actually attended court or a conference. New South Wales study. Luke and Lind (2002) compared the effects of diversionary conferencing and youth court on re-offending in the Australian state of New South Wales. To control for the effects of prior record, they gathered official data (available up to 30 June 2001) only for first-time offenders (defined as having no prior proven court case), who appeared in the youth court for 12 months preceding (N = 5,516) and following (N = 3,830) the introduction of conferencing on 6 April 1998. They then gathered data only for first-time offenders, who were conferenced during the first 12 months of the diversionary scheme (6 April 1998 to 5 April 1999; N = 590). Several comparisons were made to separate selection effects from "treatment" effects. The results showed that the conference group had a predicted risk of re-offending and rate of re-appearance approximately 15-20% lower than the two court groups, after controlling for the effects of gender, age, offense type, Aboriginality. From these findings, they surmise that the conference experience had a crime reduction effect. New Zealand study. Maxwell and Morris' (2001) model of re-offending includes an offender's early life experiences, features of the conference itself, and post-conference life experiences. They conducted interviews with 108 young people (and their parents), who had taken part in conferences in New Zealand in 1990-91. (Conferences in New Zealand, like those in most Australian jurisdictions, are not run by the police, but by a facilitator with a police officer present.) The interviews were conducted during 1996-97, about 6 ½ years after the conference, and they focused on childhood experiences in school and families, and the offender's and their parent's recollection of what happened in the conference. Data on 8 For three of the four offense types, the time between referral and legal intervention was shorter for the court group than the conference group, a result that reflects RISE-eligible offenders having to admit the offense early on, coupled with the police officers being slow in organizing RISE conferences (Heather Strang 2002, personal communication). 13 reconvictions during the 6 ½ year period for the 108 youth were obtained from police records; these were organized into four categories, ranging from "not reconvicted" (29% of the sample) to "persistent reconvicted" (28%). The authors found that both early life experiences (e.g., poverty and parental neglect) and events after the family conference (e.g., access to training and employment, exposure to criminal associates) had a significant relationship to re-offending, especially for the persistent reconvicted group. However, they also found several conference factors that were related to reductions in re-offending. These included the young person's feeling remorseful, not being made to feel a bad person, feeling involved in the conference decision-making, agreeing with the conference outcome, and meeting the victim and apologising to him or her (Maxwell & Morris, 2001: 253). They argue that while early childhood interventions are likely to prove more effective than justice system interventions, "family group conferences can moderate the patterns of the past and can contribute to the prevention of offending" (p. 260). One potential problem with this study is that the interviews with the original sample of offenders (and their families) were conducted many years after the conference took place. THE SAJJ PROJECT, CONFERENCING, AND RE-OFFENDING In assessing the impact of conferences on re-offending, we asked whether observed behaviors or outcomes in conferences could predict re-offending, over and above those factors that are known to be highly predictive, such as a person's previous offending and social marginality. We approached the problem of predicting re-offending with the assumption that conferences are variable events, with varying degrees of procedural justice and restorativeness. Our approach is similar to Maxwell and Morris in that we are interested in explaining variability in re-offending from variability in the conference process, rather than comparing the different effects of court or conference on re-offending. Our approach differs, however, in that we utilise observational data gathered by SAJJ researchers at the time of the conference, rather than participants' memories of what occurred many years later. The SAJJ project had two waves of data collection in 1998 and 1999 (see Daly Venables, McKenna, Mumford & Johnston, 1998; Daly, 2001a for detailed reviews of the project's methodology, the instruments used, and the theoretical and research justification for item construction). In 1998, SAJJ researchers observed 89 conferences held in the metropolitan area of Adelaide, South Australia, and in several country towns. The observed conferences were selected on the basis of the offense category. SAJJ-eligible offenses were 14 personal crimes of violence and property offenses that involved personal victims or "community victims" (such as schools, churches, or housing trusts). Excluded were shoplifting cases, drug cases, and public order offenses. With 15% of conferences having multiple offenders, the conferences had 107 distinct offenders. The SAJJ researchers conducted in-depth interviews with offenders and victims in 1998, and again in 1999, one year later.9 For each conference, the police officer and the coordinator completed a self- administered survey, and a SAJJ researcher completed a detailed observational instrument. The SAJJ observational survey and the coordinator and police officer surveys contained many detailed items on what occurred in the conference (in particular, a variety of measures of procedural justice and restorativeness), global judgments of how well the conference went and how well it was managed, the professional relationships between the coordinator and police officer, the emotions expressed in the conference, and who was involved in fashioning the agreement and how it was decided. In this paper, we use the SAJJ observational data in analyzing re-offending; the police and coordinator observational data as a confirmatory analysis of the SAJJ observations; and the SAJJ researcher, police, coordinator, offender, and victim survey and interview data to compare predictions of re-offending. SAJJ observational data were keyed to primary offenders; therefore, the following analysis of re-offending is limited to the 89 primary offenders in the conferences. All independent variables are listed and defined in Table 2. These variables were selected from the SAJJ observational instrument and measure offender, offense, and conference characteristics, as well as restorativeness and procedural justice. Defining and measuring "restorativeness" and "procedural justice". The SAJJ observational instrument gathered detailed information from SAJJ researchers about the conference. The theory of restorative justice suggests that offenders and victims who meet to discuss offending and victimization and to negotiate outcomes will be "restored" by a fair and equitable process. SAJJ observers recorded who attended the conference, how it was managed, and how participants related to one another. Focusing their attention on young offenders and their relationships with other people in the room, observers noted several features of the conference that were indicative of restoration and procedural fairness. "Restorativeness" was measured by observing how young people behaved during the 9 Of the total of 107 young people and 89 primary victims (N = 196), SAJJ researchers interviewed 88% in Year 1; of that group, 94% were again interviewed in Year 2 (see Daly, 2001b for details on and analysis of interview 15 conference – i.e., whether they were defiant or remorseful, took responsibility for their actions, understood the impact of their offending, gave a clear story of the offence, were actively involved in the conference discussion, offered an apology, or assured the victim the offence would not happen again. They also observed how effective victims were at describing the impact of offending, whether victims understood offenders' situations, how the conference ended (e.g., "on a high"), and if there was "positive movement" or shared understandings between offenders and victims. "Procedural justice" was measured by observing how the conference was managed – whether participants treated one another respectfully, if the coordinator permitted everyone to "have a say", if the coordinator seemed impartial, if the coordinator negotiated the outcome well, if the offender appeared "powerless", if the offender understood the relationship between the offence and the outcome, or if the outcome was decided by "genuine consensus". These items were coded 1 when restorative and procedural justice elements were observed to a large degree (e.g., "mostly or fully") and 0 when these elements were observed to be less evident (e.g., "somewhat or not at all"; see Table 3). A striking finding from the SAJJ project is that the members of all five groups -- the SAJJ observer, police officer, coordinator, offender, and victim -- report very high levels of observed or perceived procedural justice. SAJJ observers, police officers, and coordinators rated conferences highly on all the measures of procedural justice. In the face-to-face interviews with offenders and victims after the conference (median time, 25 to 33 days), their response to items such as, "were you treated fairly," "were you treated with respect," "did you have a say in the agreement," among others, registered high levels of procedural justice, with 80 to 95% of victims and offenders saying they were treated fairly and had a say. However, compared to the high levels of observed and perceived procedural justice, there was a relatively lesser degree of "restorativeness" observed in the conference by the SAJJ researchers, police officers, and coordinators, or perceived by offenders and victims when asked in the interviews. These and other SAJJ results are discussed elsewhere (Daly, 2001b, 2002, 2003a), but we note them here to provide some context for the re-offending analysis. Defining and measuring re-offending. We chose to define re-offending operationally as any new official incident (which might involve multiple charges or counts), to which the police responded by arrest or apprehension, after the date of the SAJJ conference. These response rates). Of the 79 victims interviewed in 1998, 61 attended the conference and 18 did not. We refer to the former as the "conference victims" in this article. 16 incidents were dealt with by formal caution, conference, or court. Cases pending, but not finalized in court were included. Included were all violent offenses, property offenses, and driving offenses (normally these were drink driving). Excluded were breaches of good behavior bonds, which related to a previous sentence (or undertaking), because these did not reflect a fresh incident. An official incident can have multiple charges, but our count of pre- and post-conference incidents was of distinct incidents (that is, separated by several weeks or a month). We obtained data from the South Australian police on the type of offense, police actions taken (for example, formal caution, referral to family conference or to court), date of disposition, and outcomes (e.g., conference agreement and court sentence) for the total number of young people in the sample (N = 107) as of 21 March 1999.10 The post- conference window of time is thus 8 to 12 months.11 To operationalize offending, we chose to analyze participation, not incidence. We did so for statistical and theoretical reasons. In preliminary analyses of the effect of several key independent variables on the number of incidents post-conference, the correlation matrix showed that some key variables would have been too highly correlated if we used incidence as the dependent variable. Our theoretical rationale is two-fold. First, our analytic focus is on variation within conferences rather than differences between conferences and some other justice intervention. The latter approach is typically concerned with learning how two interventions affect real or estimated levels of offending (or incidence). We are asking instead: what are the variable effects, if any, of restorative justice conferences on re- offending behavior? Thus, our approach is concerned with learning if offender and conference characteristics are associated with any future involvement in crime (or participation). Second, we are interested to shed light on how a new criminal justice intervention affects the number of offenders in a community (that is, participation), rather than the number of criminal events in a community (that is, incidence; see Sherman et al., 10 Our thanks to Senior Sergeant Dave Wardrop for his assistance with the data collection, as well as his cooperation and counsel in helping us to decode the categories and meanings in official criminal histories. 11 The 89 conferences were sampled during a 4-month period, March through June 1998, the first conference observed was on 9 March and the last, on 25 June 1998. While the 8- to 12-month measurement window is somewhat small, it is wide enough to assess the potential impact of conferencing on re-offending. In fact, an analysis of days to first post-conference official incident showed that 50% of those who re-offended 8-12 months post-conference did so within 3 months (90.5 days), and 93% re-offended within 8 months (240 days). So, while this disparate follow-up period may pose a methodological challenge, this outcome is consistent with what other researchers have observed, that is, if re-offending is going to occur, it will happen shortly following an intervention (Maxwell & Morris, 2001: 245). 17 2000). For some datasets and research purposes, incidence may be the more appropriate dependent variable. For this dataset, an analysis of participation was the more sound approach statistically; and at this stage of investigating the effects of conferences on individual offenders, participation is the better measure. We note that with the exception of Maxwell and Morris (2001), no study has yet attempted to relate measures of what occurred in a conference to re-offending. Previous research has simply compared re-offending rates for court and conference groups, and researchers have only speculated on the reasons for the differences (if any) in re-offending for each group. Offending and re-offending in the SAJJ sample. Unless noted otherwise, our depiction of offenders is of the 89 primary offenders in the conferences, not the total of 107. The reason is that in recording conference observations, SAJJ researchers focused on the behavior and interactions of one designated primary offender when there were multiple offenders, as did the coordinators and police officers. For pre-conference activity, 43% of the young people had not had any official contact prior to the incident that led to the SAJJ conference; thus 43% were "first time" offenders.12 Some 27% had had one contact, and 30% had two or more contacts. For post-conference offending, 60% had no official contact following the conference, 17% had one contact only, and 23% had two or more contacts. The number of pre- and post-conference incidents ranged from none (except the SAJJ incident) to 17. One-third of the sample can be termed "experimenters" in that the SAJJ offense was their only offense; an additional 26% did not re-offend post-conference (we refer to this group as the "desisters").13 The "drifters", those with only post-conference offenses, represent only 9% of young offenders.14 Close to one-third are "persisters," who offended both pre- and post-conference. These proportions are summarized in Table 1. 12 The window of time for pre-conference offending could range from several months to 7 years, depending on the youth's age and how long they have lived in South Australia. In an analysis of the first address shown on the police file, over 80% had come to police attention in the previous 2 years. 13 We appreciate that the term "desister" may connote a fixed state when recent research suggests it is better understood as a temporal process (Laub & Sampson, 2001; Bushway, Piquero, Briody, Cauffman & Mazerolle, 2001). 14 We borrowed this term from the theoretical literature on delinquency to capture the notion of moral release (Matza, 1964). 18 Conferencing and re-offending: bivariate relationships We began by running a series of cross-tabulations between a participation measure of re-offending (our dependent variable, where 1 = re-offended post-conference), offender characteristics, and actions or behaviors occurring in conferences that may be linked to re- offending. Table 2 presents the independent variables in five groups: offender-related, offense-related, conference-related, measures of restorativeness, and measures of procedural justice.15 Phi coefficients were used to assess the strength of the association, and the asterisks indicate the level of statistical significance.16 Measures of restorativeness and procedural justice analyzed here are derived from the SAJJ observational data and do not represent how offenders perceived these features of the conference. For the offender-related variables, males comprise 76% of the sample, and Aboriginal youth, 12%.17 Our measure of social marginality (or residential instability) is the number of distinct residential addresses on file with the South Australian police; nearly 30% of the young people had lived at different addresses three or more times.18 From Table 2 one sees significant bivariate associations for re-offending and Aboriginality, social marginality, and prior offending. Some 64% of Aboriginal youth re-offended, whereas 37% of non- Aboriginal youth did; 72% of residentially unstable youth re-offended compared to 28% of more stable youth; and 55% of those who offended pre-conference re-offended compared with 21% with no prior offending. In light of previous research, we were initially puzzled by an apparent lack of association between sex and re-offending. When we examined sex and race together by crosstabulating a combined sex/race variable with re-offending, we found that re-offending was highest (and similar) for Aboriginal male and female youth (63% and 67%, respectively), 15 It was difficult to classify some measures. For example, "offender was defiant" can be a negative indicator of restorativeness (denying the harm to a victim) or an indicator of procedural justice (reacting against perceptions of being treated unfairly by a legal authority). 16 We concur with Sherman et al. (2000) on the interpretation of statistical significance. While it is conventional to regard effects at the .05 level as statistically significant, a more generous error level of .15 may be appropriate in the policy context. We have limited our interpretation of the bivariate and multivariate analyses to the .10 level. However, we would point out that the phi coefficients of .15 to .16 near statistical significance at the .10 level. 17 SAJJ sample demographics are nearly identical to those of all youth conferenced in 1998 (see Daly, 2001b: 22). 19 followed by non-Aboriginal males (40%), and non-Aboriginal females (28%). From this result, coupled with the low number of Aboriginal females in the sample, it was essential that our multivariate analysis use a set of combined, rather than separated sex and race variables, so we created a set of dummy variables for sex/race. The dummy variables were coded as follows: 1 for Aboriginal male or female, 0 otherwise; 1 for non-Aboriginal male, 0 otherwise. Non-Aboriginal female was the redundant category. For the offense-related variables, Table 2 shows no statistically significant association between re-offending and the type of offense (violent or property) or type of victim (individual or organization, although this neared significance), but does for victim-offender relationships. Those offenders who committed a SAJJ offense against someone they knew were less likely to re-offend. For the conference-related variables, victims were present in 74% of conferences, with an additional 6% attended by a representative of the Victim Support Services. The results show that conferences are calm events with low degrees of anger (10%) and moderate levels of crying (25%). There is no association between re-offending and whether a victim (or professional victim representative) was at the conference, and none for the presence of emotions displayed at the conference. The finding for victim presence is noteworthy in the light of criticisms levelled at conferencing schemes with low rates of victim participation (for example, in New Zealand), which commentators have assumed would result in diminished positive effects. SAJJ researchers judged 10% of conferences to be a "waste of time"; a significantly higher share of young people in such conferences re-offended 8 to 12 months later. The "waste of time" variable is a global measure that captures observers' overall impressions of conference success. Of the nine conferences judged as a waste of time, other observational variables show that for these conferences, the offenders were not at all remorseful, there was little or no positive movement between offenders and victims, and offenders did not understand the impact of the crime on the victim. In one conference involving two young men, the victim was particularly vindictive and lied about the extent of the harm. While these conferences may have been procedurally fair, they lacked elements of mutual understanding between the victim and offender. 18 The number of addresses in the police files did not match the number of arrests on record. In 49% of cases, there were more addresses than arrests on file because address information is recorded when any matter comes to police attention, including victimization, being a witness, and child protection matters. In 33% of cases there were fewer addresses than arrests and in 18% there were equal addresses and arrests on file. 20 Some measures of restorativeness are related to re-offending, and others not. (Note that phi coefficients may be identical in magnitude for some variables, but significant for one and not the other because the number of conferences is smaller for some variables, that is, those involving victims who were present at the conference.) When young people were observed to be remorseful and when SAJJ observers recorded the conference as having ended on a high, a positive note of repair and good will, youth in those conferences were less likely to re-offend. There is no association, however, between re-offending and an offender understanding the impact of the crime on the victim, or a victim being effective in describing the impact of the offense. Based on the expectations of restorative justice theory, we would have expected to see a stronger relationship of re-offending and variables tapping "movement and mutual understanding" between victims, offenders, and their supporters, but this did not emerge. Several measures of restorativeness neared statistical significance at the .10 level: when offenders took responsibility for the offense, were actively involved, and were not defiant, they were less likely to re-offend. For procedural justice, there are no significant associations for what we might term the standard or Tyler-based measures of procedural justice (such as the police officer treating the offender with respect, the coordinator permitting everyone to have a say, the coordinator being impartial, process of deciding outcome was fair) mainly because they had too little variability (ranging from 89 to 99%).19 This is an important finding. Standard measures of procedural justice may be better able to distinguish court and conference processes than they can variability among conferences. One conference-specific procedural justice measure is linked to re-offending. When the outcome was observed to be decided by genuine consensus, young people in those conferences were less likely to re-offend. Conferencing and re-offending: multivariate analyses These bivariate results helped us to identify the variables for our multivariate analyses. We used logistic regression to analyze the effects of offender-related, offense- related and conference-related characteristics, along with measures of restorativeness and procedural justice, on our measure of re-offending. We were interested to determine if, in addition to those offender-related variables known to be predictive of re-offending (not only 19 For example, SAJJ observers recorded the following: police officers treated the young person with respect (99% yes), the young person treated the police officer with respect (96% yes), the coordinator permitted everyone to have a say (98% yes), and the coordinator seemed impartial (93% yes). 21 from the literature, but also from our bivariate analysis of the data), other conference-related variables were predictive. We explored many combinations of variables, although we were limited by the number of variables we could include in the equation because of the number of cases. Table 3 shows the fruits of our analyses. We estimated two models: (1) a full model, which has the variables known to be predictive of re-offending (prior offending, sex/race- ethnicity, social marginality -- our control variables), together with key conference variables; and (2) a reduced model, which included only the controls. Examining the full model, we find that all but one of the control variables were significantly associated with re-offending. Non-Aboriginal males were more likely to re-offend, as were residentially unstable youth and those with pre-conference offending. Over and above these offender characteristics, there were two significant conference variables. When young people were observed to be remorseful and when they participated in conferences in which outcomes were decided by genuine consensus, they were less likely to re-offend. Overall, 80% of cases were correctly classified with this model, and a pseudo measure (Nagelkerke R2) of explained variation was 43%. With the reduced model, however, 72% of cases were correctly classified, and a pseudo measure of explained variation was 30%. We note that this is a stringent test of the effects of conferencing on re-offending: one might have assumed that the control variables, especially pre-conferencing offending and our measure of social marginality, would have overwhelmed any potential conference effects. The control variables did account for most of the variability in predicting re-offending, and as we shall see, the odds ratios for these variables are large. However, the statistical significance of the two conference variables, coupled with the improvement in explained variation, suggests that they have unique effects. The odds ratios (in order of magnitude) for the full model show the following. The odds of re-offending are nearly nine times greater for youths who are residentially unstable (three or more residential changes on file with the police) compared to those with only one or two residential movements. Compared to other offenders, the odds of re-offending are three times greater for non-Aboriginal males. Youth with a history of prior offending have an odds of re-offending about three times greater than those with no detected prior offending. However, when particular conference features are present (offender remorse and consensual decision making), the odds of re-offending are reduced. When young people show remorse in the conference, the odds of re-offending are reduced by about a third (0.33); and when 22 outcome decisions are arrived at by genuine consensus, the odds of re-offending are reduced by about a quarter (0.27).20 While the odds ratios derived from the beta coefficients in Table 3 do not permit us to say how much more likely one outcome is over another, the relative risk ratio does (Agresti, 1990: 17-18). Translating the odds ratios from the 2 X 2 contingency tables for the predictors in the full model to risk ratios (i.e., cross-classifying the predictors with re- offending), we find that Aboriginal males and females were 2.57 times as likely to re-offend as non-Aboriginal offenders. Non-aboriginal males were equally likely to re-offend compared to other offenders (i.e., this dummy variable is independent of re-offending in the bivariate analysis; relative risk ratio = 0.982; odds ratio = 0.944). Those with prior offending were 1.79 times as likely to re-offend as those with no prior offending, and residentially unstable offenders (i.e., those with three or more residential addresses on their police record) were 3.79 times as likely to re-offend as more residentially stable youth. Conference-related variables seemed to diminish the likelihood of re-offending. Young offenders who were observed to be remorseful were 0.55 times as likely to re-offend as unremorseful youth. Also, offenders whose conference agreements were observed to be consensual were 0.74 times as likely to re-offend as offenders whose conference agreements were not. The odds ratios show that offender characteristics play a marked role in predicting future behavior; however, what happens in a conference may also be important. This outcome is consistent with Maxwell and Morris' (2001) findings from New Zealand, which 20 Several reviewers suggested that our single-item measures may not have adequately captured procedural justice and restorativeness and that a scale might be preferable. There are two key points we would make on this. First, we are not analyzing whether the presence of procedural justice or restorativeness generally predicts re-offending. In fact, the procedural justice variables were so consistently high, with little variability, they would be poor predictors, whether as single items or constructed as a scale. The variable "consensus in deciding the outcome" is reflective more of the agreement in negotiation amongst the parties (in particular, the offender and the police officer) than it is "fairness" or "respect"; perhaps for this reason, it has more variability and is more strongly predictive. Second, scales may be appropriate for some statistical analyses but not others. We decided, however, to create two additive scales for restorativeness and procedural justice by summing across the items listed in Table 2 and averaging them (i.e., scale scores ranged from 0 to 1). The mean restorativeness score and associated Cronbach's alpha were .46 (SD .24) and .75, and the mean procedural justice score and associated alpha were .83 (SD .13) and .26. The very low alpha for procedural justice likely flows from the low variance for many of the scale items (see Table 2). We entered these variables into a revised logistic regression model. The scale measures improved the model only slightly over the reduced model in Table 3, with 74% of cases correctly classified and a pseudo-R2 of 34%. The betas for restorativeness and procedural justice were -.82 (p=.49) and –3.02 (p=.17), respectively. The associated odds ratios were .44 and .05, respectively. Other variables entered into the revised model (sex/race-ethnicity, pre-conference offending, residential mobility) retained significance as in Equation 1 of Table 3. This is an instance when particular variables such as remorse are predictive of future behaviour (i.e, not re-offending) whereas a scale of "restorativeness", which includes many types of behaviours and interactions between offenders and victims, is not predictive. 23 show that prior offending and negative life experiences bear the heaviest on re-offending, but that re-offending is less likely when young people feel remorseful, are involved in conference decision-making, and agree with the conference outcome. We do not suggest that conferences "produce" remorseful youth who are less likely to re-offend, or that consensual decision- making has a causal impact on re-offending. It may be that some youth are already prepared to be remorseful at the conference and to be agreeable to outcome negotiations. It is not possible in this quantitative analysis to disentangle the effects of offender characteristics (that is, already feeling remorseful or readiness to negotiate an outcome) and a conference context that may encourage or promote these sensibilities, although this could be pursued in a qualitative analysis of selected cases.21 However, to the extent that certain behaviors and decision-making processes in conferences are indicative of future behavior, research from New Zealand and ours from South Australia show strikingly similar patterns. Consistency and reliability Colleagues and reviewers have queried the inter-rater reliability of the SAJJ observations, and thus we pause to consider questions of consistency and reliability. A decision was taken early in the project that only one SAJJ researcher should attend each conference. Even with the presence of one researcher, the coordinator and police officer were concerned with the influence this might have on the conference; two or more researchers would be excessive. Moreover, for ethical reasons, we wished to minimise the level of intrusion that research observations presented. One method of increasing consistency of observation is by developing a shared understanding of what the observational items mean; this was accomplished in the pre-research period as the Project Director (Daly) worked intensively with the SAJJ researchers in fashioning the items used in the observational protocol.22 However, there is another way to test the SAJJ results: by comparing them with 21 In a separate analysis of the SAJJ data, Daly (2003b) finds that the conference had an impact on young persons' views of the legal system. Those young people who stayed out of trouble were more likely to have positive views of the legal system, saying this was a result of the conference. 22 See Daly et al. (1998) for a discussion of instrument development. Daly first worked with the police officers in identifying and finalizing observational items, and revising the items further when working with the coordinators. Next, she wrote memos about the SAJJ observational instrument (which built in part on the police and coordinator surveys), which became the basis for intensive work with the SAJJ researchers in finalizing the SAJJ observational instrument. The aim was to develop items that made sense to the police and coordinators, and to create similar observational items across the three groups, although the SAJJ observational protocol was more detailed. 24 the observations of the police officers and coordinators in each conference. For the 89 conferences, five SAJJ observers and ten coordinators completed the conference observation protocol or survey; a higher number of police officers (N = 21) participated in conferences and completed the survey, with six officers involved in just one SAJJ conference. In light of these numbers (especially for the police), coupled with the different perspectives and experiences that members of each group may bring to the conference process, this is a demanding test of consistency and reliability. Our analysis finds a good to high degree of consistency across the key variables between the pairs (Appendix, Table A) and a high level of association between re-offending and the remorse and consensus variables (Appendix, Table B). In running the logistical regression analysis with the police officer and coordinator judgments of offender remorse and degree of genuine consensus, we find that while the SAJJ model is replicated by the coordinator model, it is partly replicated by the police model (Appendix, Table C). Specifically, remorse and conference consensus predicted re-offending in the coordinator model, but remorse (not conference consensus) predicted re-offending in the police model (see discussion in the Appendix). Conditional probabilities of re-offending Logistical regression odds ratios can be helpful in demonstrating the relative impact of individual offender and conference characteristics on re-offending. But in addition, logistic regression allows us to calculate the conditional probability of re-offending for various case scenarios (Poulos & Orchowsky, 1994; Hosmer & Lemeshow, 1989), by solving for the conditional probability = 1 / 1 + e –logit, where logit is the linear regression equation or logit transformation (B0 + B1X1 + … + BiXi). Using the coefficients from the SAJJ equation, we examined the impact of youth characteristics and conference elements on the probability of re-offending, and found that offender remorse and consensual decision-making lowered the probability of further offending. This was true for youth who possessed characteristics associated with further offending ("high-risk") and for those who did not ("low-risk") (see Table 4). When a young person was an Aboriginal male or female, residentially unstable, had a record of prior offending, and was not observed to be remorseful and the conference decision was not observed to be consensual (high-risk youth, poor conference elements), the conditional probably of a further offense was very high at .94. But when offender remorse and consensual decision-making were present for high-risk Aboriginal youth, the probability 25 of further offending decreased from .94 to .68.23 For a non-Aboriginal male with no prior offending history, who was residentially stable, who was observed to be remorseful and whose conference decision was observed to be consensual (low-risk youth, good conference elements), the conditional probability of re-offending was .11. But when good conference elements were absent for this youth (low-risk youth, poor conference elements), the probability of re-offending increased from .11 to .48. The shift in conditional probabilities of re-offending is more dramatic for high-risk non-Aboriginal females and low-risk Aboriginal males and females. For high-risk non-Aboriginal females, when good conference elements were absent, the conditional probability of offending was .80; but when good conference elements were present, it was .35. For low-risk Aboriginal males and females, when good conference elements were absent, the conditional probability of re-offending was .52; but when the elements were present, the probability was .12. WHO PREDICTS RE-OFFENDING BEST? Pooling the 1998 interview data from victims and offenders, the survey data from police officers and conference coordinators, and the observational data from SAJJ researchers, we cross-classified the responses to questions about the likelihood of future offending with our data on post-conference offending. In the interviews with young people in 1998, we asked them, "Do you think it likely or unlikely that you will be involved in a serious offense in the future?," and in the interviews with victims who attended the conference, we asked, "Do you think it likely or unlikely that the offender will be involved in a serious offense in the future?" The coordinator and police survey item, and the SAJJ observer item was, "Do you think it likely or unlikely that the young person will be involved in a serious offense in the future, one that comes to the attention of the police?" All were asked to answer on a four-point scale ranging from very likely to very unlikely, with an additional category of "do not know" or "unsure". The results show that the conference victims were least accurate in predicting young people's future offending (Table 5). Including the "do not know" and "unsure" responses, 46% of victims were correct in predicting future offending (or non-offending). The better predictors were the police (65%), offenders (60%), SAJJ observers (57%), and coordinators (55%). (If we remove the "do not know/unsure" category, the police and coordinators are the 23 We included the combined sex/race-ethnicity variable for Aboriginal males and females in the conditional probability calculations because it neared significance at the .10 level. 26 best predictors, making accurate predictions for about three-fourths of offenders.) False positives, that is, wrongly predicting future offending, were more frequent for the victims (38%) than for other groups; and not surprisingly, false negatives (predicting non-offending, when it did occur) were most frequent for the offenders (25%). Across the five groups, the coordinators were most likely to reserve judgment on re-offending with 26% saying they did not know or were unsure, whereas the percentages for the SAJJ observers, police, offenders, and victims were consistently smaller (10 to 13%) Several implications can be drawn from this analysis. The coordinators, police officers, and SAJJ observers not only have a more accurate view of a young person's future behavior (law-abiding and otherwise), but also they are more optimistic of the potential for young people to change, as evidenced by their relatively low percent of false positives. Members of these groups appear to believe in the potential for conferencing to promote change and social reintegration. By comparison, the conference victims appear to be more skeptical in the potential for conferencing, and they have a more static and negative view of offenders. One of the hallmarks of restorative justice (and re-integrative shaming) -- that the process should strive to separate the "badness" of acts from the identities of individuals committing them -- may be especially difficult for victims to contemplate and accept. Nevertheless, nearly 90% of conference victims recommended the government keep conferencing in the justice system. SUMMARY AND DISCUSSION New justice interventions such as conferencing are often required to demonstrate their claimed benefits by showing reductions in re-offending. Whether this should be a requirement is a matter of debate among researchers in the conferencing and restorative justice areas. Advocates and commentators give a variety of reasons for why conferencing is likely to be more effective than regular court processes in reducing crime. These include the positive (crime reduction) impact of how decisions are made and who participates in making them; changes in the sources of knowledge about crime and its impact (that is, away from lawyers to actual victims, offenders, and their supporters); changes in ways of thinking about sanctions and their purposes; and a renewed interest in justice system interactions as a form of moral education, a dialogic encounter intended to persuade and to show the offender how crime hurts victims and other members of the community. Analyzing how these and other elements may affect re-offending should be a focus of research and policy. However, to date, 27 this has not been the case. Rather, the more frequent approach is to compare measures of re- offending for different kinds of legal interventions. While such an approach has its place and should be carried out, it has limitations. Specifically, the problems of comparing court and conference in natural settings include sample selection bias by the police (or other referring group); differences in offenders' orientations to more immediately admit to an offense (or to deny it); and temporal differences in the handling of court and conference cases, which give different windows of time for measuring re-offending. These problems of comparison may be overcome with randomized field experiments, but these too have problems. Specifically, we noted that for an offender to be eligible for an experiment, a typical protocol is that s/he must admit to the offense first, before being assigned to court or conference. Offenders who admit early on to an offense may differ in theoretically important ways from those who do not. On ethical grounds, randomised field experiments are obliged to use this protocol. Nonetheless, it comes at a price of screening out a segment of arguably the most interesting people to study: those who may have more entrenched patterns of denial and who would be most likely to re-offend. Moreover, a significant problem for randomized field experiments is when to begin the clock in counting re-offending. The RISE project started the clock at the date of referral, and while there may be good reasons for this choice, it comes at the price of making accurate claims. If claims are to be made about the different effects of court and conference, a logical time to start the clock is after an offender has experienced the conference or court encounter, not before it. We have emphasized the benefits of studying re-offending by focusing on the variable qualities and effects within a conference (or restorative justice) practice. This approach permits an analysis of the theorized linkages between conference processes and re-offending, which can only be surmised or inferred when using a conference-court comparison. It is important that researchers take a more in-depth look at the conference process (or other similar process) in its own right to determine whether any of the claimed elements are present and with what impact. In taking this approach, we find that conferences have variable degrees of claimed elements present, and that this variability can be linked to re-offending. Specifically, holding constant previous offending and indicators of marginality, we find that young people, who were observed to be remorseful and who were in conferences where outcomes were achieved by genuine consensus, were less likely to re-offend. When extending the SAJJ model to the two other observers in the conference room (the police officer and coordinator), we find that offender remorse remains highly predictive, although 28 conference consensus is predictive for one group, but not the other. While we would have preferred a perfect replication of the SAJJ model, we are satisfied that these results add credibility to the SAJJ model. Research findings from a single jurisdiction can be limited in generalizability, but our results from South Australia are similar to those of Maxwell and Morris (2001) for New Zealand, and this gives them added weight. Our interpretations are also similar. Offenders come into the justice system with varied degrees of negative life experiences, social marginality and disadvantage, and previous contact with the justice system. We would expect these factors to have a strong impact on predicting future offending, irrespective of the character of any justice system intervention. Over and above these factors, both the SAJJ project and Maxwell and Morris (2001) find that conference-specific factors are indicative of reduced re-offending, in particular, offender remorse and involvement in decision-making. Based on these statistical results, we cannot make a causal claim that conferences induce remorse or contrition or that consensually-based outcomes cause reductions in re-offending. To make such a claim would require an analysis of offenders' pre-conference orientations and the significance of the conference in the life of the young person and his or her supporters. Moreover, offenders, victims, and their supporters come to conferences with varying degrees of knowledge about the process and what they are expected to do; these factors likely affect the probability of good conference elements emerging (or not). Jurisdictions in Australia and New Zealand vary in pre-conference preparation by coordinators. Some jurisdictions (like Queensland) routinely have face-to-face pre-conference meetings with victims and offenders, whereas other jurisdictions (South Australia and the ACT) do not. We have tried to make a case for the benefits of studying within-conference variation for predicting re-offending, but we recognize its limitations. Specifically, policymakers may be more impressed with comparisons of different legal interventions, especially if a new one can be shown to outperform an older, more established form. In comparing the benefits of conference over court, however, researchers need to specify which behaviors and interactions occur in conferences more often than in court, which are then linked to reductions in re- offending. From the recidivism literature and our analysis, such reductions will be at the margins, with other variables such as pre-conference offending and social marginality having substantially greater influences. Our analysis shows that while about one-quarter of young people were changed by the conference process toward more law-abiding behavior, the victims attending conferences 29 were skeptical of the capacity for youthful offenders to change. Despite the fact that two- thirds of conference victims believed the young person who victimized them or their property would be in trouble again, close to 90% of them said the government should keep family conferencing. Victims therefore distinguish between seeing conferencing as a good thing, to be maintained, and holding ambivalent (and inaccurate) attitudes about the potential for youthful lawbreakers to change. These results lead us to speculate that in supporting a new justice idea in the youth justice area, evidence of reductions in re-offending may be more salient to policymakers or politicians than to their constituents. 30 REFERENCES Agresti, A. (1990). Categorical Data Analysis. New York: Wiley. Ahmed, E., Harris, N., Braithwaite, J., & Braithwaite, V. (2001). Shame Management through Reintegration. Cambridge: Cambridge University Press. Bargen, J. (1996). Kids, cops, courts, conferencing and children's rights: a note on perspectives. Australian Journal of Human Rights, 2, 209-228. Braithwaite, J. (1989). Crime, Shame and Reintegration. Cambridge: Cambridge University Press. Braithwaite, J. (1999). Restorative justice: assessing optimistic and pessimistic accounts. Crime and Justice: A Review of Research, 25, 1-127. Braithwaite, J. & Mugford, S. (1994). Conditions of successful reintegration ceremonies. British Journal of Criminology, 34, 139-171. Bushway, S., Piquero, A., Briody, L., Cauffman, E. & Mazerolle, P. (2001). An empirical framework for studying desistance as a process. Criminology, 39, 491-516 Consedine, J. & Bowen, H., eds. (1999). Restorative Justice: Contemporary Themes and Practice. Lyttelton, New Zealand: Ploughshares Publications. Daly, K. (2001a). Conferencing in Australia and New Zealand: variations, research findings, and prospects. In A. Morris and G. Maxwell (eds.), Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing. Daly, K. (2001b). South Australia Juvenile Justice (SAJJ) Technical Report No. 2: Research Instruments in Year 2 (1999) and Background Notes. Brisbane: School of Criminology and Criminal Justice, Griffith University. Available at http://www.aic.gov.au/rjustice/sajj/index.html Daly, K. (2002). Restorative justice: the real story. Punishment & Society, 4, 55-79. Daly, K. (2003a). Mind the gap: restorative justice in theory and practice. In A. von Hirsch, J. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (eds.) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?. Oxford: Hart Publishing. Daly, K. (2003b). Making variation a virtue: evaluating the potential and limits of restorative justice. In E. Weitekamp & H. Kerner (eds.) Restorative Justice in Context: International Practice and Directions. Devon, England: Willan Publishing. Daly, K. & Hayes, H. (2001). Restorative justice and conferencing in Australia. Trends and Issues in Criminal Justice No. 186. Canberra: Australian Institute of Criminology. Available at http://www.aic.gov.au/publications/tandi/tandi186.html 31 Daly, K. & Immarigeon, R. (1998). The past, present, and future of restorative justice: some critical reflections. Contemporary Justice Review, 1, 31-45. Daly, K, Venables, M., McKenna, M., Mumford, L. & Christie-Johnston, J (1998). South Australia Juvenile Justice (SAJJ) Research on Conferencing, Technical Report No. 1: Project Overview and Research Instruments. Brisbane: School of Criminology and Criminal Justice, Griffith University. Available at http://www.aic.gov.au/rjustice/sajj/index.html Dignan, J. (1991). Repairing the Damage: An Evaluation of an Experimental Adult Reparation Scheme in Kettering, Northamptonshire. Sheffield, England: Centre for Criminological and Legal Research, University of Sheffield. Dignan, J. (1992). Repairing the damage: can reparation be made to work in the service of diversion? British Journal of Criminology, 32, 453-472. Garfinkel, H. (1956). Conditions of successful degradation ceremonies. American Journal of Sociology, 61, 420-424. Gendreau, P, Little, T. & Goggin, C. (1996). A meta-analysis of the predictors of adult offender recidivism: what works! Criminology, 34, 575-607. Hayes, H, Prenzler, T & Wortley, R. (1998). Making Amends: Final Evaluation of the Queensland Community Conferencing Pilot. Griffith University: Centre for Crime Policy and Public Policy. Available at http://www.gu.edu.au/school/ccj/amends.pdf . Harris, N. & Burton, J. (1996). The Reliability of Observed Reintegrative Shaming, Shame, Defiance and Other Key Concepts in Diversionary Conferences: RISE Working Paper Number 5. Canberra: Australian National University. Available at http://www.aic.gov.au/rjustice/rise/working/risepap5/risepap5.pdf Harris, N. & Burton, J. (1998). Testing the reliability of observational measures of reintegrative shaming at community accountability conferences and at court. Australian and New Zealand Journal of Criminology, 31, 230-241. Hesmer, D. & Lemeshow, S. (1989). Applied Logistic Regression. New York: John Wiley & Sons. Kurki, L. (2001). Evaluation of restorative justice practices. Paper presented to Cambridge Seminar on Restorative Justice, Toronto, May. Latimer, J., Dowden, C. & Muise, D. (2001). The Effectiveness of Restorative Justice Practices: A Meta-Analysis. Department of Justice: Research and Statistics Division. Available at http://canada.justice.gc.ca/en/ps/rs/rep/meta-b-e.html 32 Laub, J. & Sampson, R. (2001). Understanding desistance from crime. Crime and Justice: An Annual Review of Research. Chicago, Ill.: University of Chicago Press. Luke, G. & Lind, B. (2002). Reducing juvenile crime: conferencing versus court. Crime and Justice Bulletin: Contemporary Issue in Crime and Justice. New South Wales Bureau of Crime Statistics and Research. Available at http://www.lawlink.nsw.gov.au/bocsar1.nsf/files/CJB69.pdf/$file/CJB69.pdf Maltz, M. (1984). Recidivism. New York: Academic Press. Matza, D. (1964). Delinquency and Drift. New York: Wiley. Marshall, T. (1999). Restorative Justice: An Overview. London: Home Office. Marshall, T. (1992). Restorative justice on trial in Britain. In H. Messmer and H.-U. Otto (eds.) Restorative Justice on Trial. Rotterdam: Kluwer Academic Publishers. Maxwell, G. & Morris, A. (1993). Family, Victims and Culture: Youth Justice in New Zealand. Wellington: Institute of Criminology, Victoria University of New Zealand. Maxwell, G. & Morris, A. (2001). Family group conferences and reoffending. In A. Morris and G. Maxwell (eds.), Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing. McCold, P. & Wachtel, B. (1998). Restorative Policing Experiment: The Bethlehem, Pennsylvania Police Family Conferencing Project. Pipersville, PA: Community Service Foundation. McGarrell, E. (2001). Restorative Justice Conferences as an Early Response to Young Offenders. Washington DC: Office of Juvenile Justice and Delinquency Prevention, US Department of Justice. Messmer, H. & Otto, H. (1992). Restorative justice: steps on the way to a good idea. In H. Messmer & H.-U. Otto (eds.), Restorative Justice on Trial. Rotterdam: Kluwer Academic Publishers. Miers, D. (2001). An International Review of Restorative Justice. Crime Reduction Research Series Paper 10. London: Home Office. Available at http://www.homeoffice.gov.uk/rds/prgpdfs/crrs10.pdf Miers, D., Maguire, M., Goldie, S., Sharpe, K., Hale, C., Netten, A., Uglow, S., Doolin, K., Hallam, A., Enterkin, J. & Newburn, T. (2001). An Exploratory Evaluation of Restorative Justice Schemes. Crime Reduction Research Series Paper 9. London: Home Office. Available at http://www.homeoffice.gov.uk/rds/prgpdfs/crrs09.pdf 33 Morris, A. & Gelsthorpe, L. (2000). Something old, something borrowed, something blue, but something new? A comment on the prospects for restorative justice under the Crime and Disorder Act 1998. Criminal Law Review, Jan, 18-30. Morris, A. & Maxwell, G. (1997). Family group conferences and convictions. Occasional Papers in Criminology New Series No. 5. Wellington, New Zealand: Institute of Criminology, Victoria University of Wellington. Poulos, T. & Orchowsky, S. (1994). Serious juvenile offenders: predicting the probability of transfer to criminal court. Crime and Delinquency, 40, 3-17. Schneider, A. (1986). Restitution and recidivism rates of juvenile offenders: results from four experimental studies. Criminology, 24, 533-552. Sherman, L. (1993). Defiance, deterrence, and irrelevance: a theory of the criminal sanction. Journal of Research in Crime and Delinquency, 30, 445-473. Sherman, L., Strang, H. & Woods, D. (2000). Recidivism Patterns in the Canberra Reintegrative Shaming Experiments (RISE). Canberra: Centre for Restorative Justice, Research School of Social Sciences, Australian National University. Strang, H, Barnes, G., Braithwaite, J. & Sherman, L. (1999). Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments. Canberra: Australian Federal Police and Australian National University. Available at http://www.aic.gov.au/rjustice/rise/index.html Tyler, T. (1990). Why People Obey the Law. New Haven: Yale University Press. Umbreit, M. & Coates, R. (1993). Cross-site analysis of victim offender mediation in four states. Crime and Delinquency, 39, 565-585. Umbreit, M, Coates, R. & Vos, B. (2001). Victim impact of meeting with young offenders: two decades of victim offender mediation practice and research. In A. Morris and G. Maxwell (eds.), Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing. van Ness, D. & Schiff, M. (2001). Satisfaction guaranteed? The meaning of satisfaction in restorative justice. In G. Bazemore and M. Schiff (eds.), Restorative Community Justice. Cincinnati, OH: Anderson Publishing Company. Walgrave, L. (1999). Community service as a cornerstone of a systemic restorative response to (juvenile) crime. In G. Bazemore and L. Walgrave (eds.), Restorative Juvenile Justice: Repairing the Harm of Youth Crime. Monsey, NY: Criminal Justice Press. 34 Young, R. (2001). Just cops doing "shameful" business? Police-led restorative justice and the lessons of research. In A. Morris and G. Maxwell (eds.), Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing. 35 Table 1. Pre- and post-conference offending Official contact includes any incident that led to a formal caution, conference, or court disposition. (N=89) pre-conference contact: 0 (except SAJJ case) 43% 1 27 2+ 30 3+ 17 4+ 14 5+ 7 post-conference contact: 0 60% 1 17 2+ 23 3+ 18 4+ 11 5+ 10 Group Offended pre-SAJJ conference Offended post-SAJJ conference Percentage of primary offenders (N=89) Experimenters no no 34 Desisters yes no 26 Drifters no yes 9 Persisters yes yes 32 1 Table 2. Bivariate relationships between selected variables and re-offending Variable Categories Percent re- offending Phi Offender-related variables Sex (76% male) 1=male 0-female 43 33 .08 Racial-ethnic identity (12% Aboriginal) 1=Aboriginal 0=non-Aboriginal 64 37 .18* Number of addresses on police file (28% 3 or more) 1=3+ 0=1 to 2 72 28 .40** Pre-SAJJ conference offending (57% yes) 1=yes 0=no 55 21 .34** Offense-related variables Type of offense (44% violent) 1=violent 0=property 36% 44% -.08 Victim-offender relationship (52% known) 1=known 0=stranger 32% 50% -.18* Type of victim (80% personal) 1=personal 0=organization only 37% 56% -.16 Conference-related variables Victim or representative present (80% yes) Victim only present (74% yes) 1=yes 0=no 1=yes 0=no 41% 39% 41% 39% .02 .02 Conference was a waste of time (10% yes) 1=yes 0=no 78% 36% .26** Angry/aggressive remarks aimed at offender (10% yes) 1=yes 0=no 57% 39% .10 Crying by participants (25% yes) 1=yes 0=no 46% 39% .06 Measures of restorativeness Offender gave a clear story (71% mostly or fully) 1=mostly or fully 0=somewhat or not at all 43% 35% .08 Offender accepted responsibility (62% mostly or fully) 1=mostly or fully 0=somewhat or not at all 35% 50% -.15 Offender actively involved (78% mostly or fully) 1=mostly or fully 0=somewhat or not at all 36% 55% -.16 Offender was defiant (30% somewhat, mostly or fully) 1=somewhat, mostly or fully 0=not at all 52% 36% .15 YP was remorseful (49% mostly or fully) 1=mostly or fully 0=somewhat or not at all 27% 53% -.27** Offender offered spontaneous apology (41% mostly or fully)‡ 1=mostly or fully 0=somewhat or not at all 33% 46% -.13 Offender assured victim offense wouldn't happen again (58% mostly or fully) ‡ 1=mostly or fully 0=somewhat or not at all 34% 50% -.16 Offender understood impact of crime on victim (52% mostly or fully) ‡ 1=mostly or fully 0=somewhat or not at all 41% 41% .00 2 Table 2 cont. Victim effectively described impact of offense (72% mostly or fully) ‡ 1=mostly or fully 0=somewhat or not at all 39% 45% -.05 Victim understood offender's situation (34% mostly or fully) ‡ 1=mostly or fully 0=somewhat or not at all 46% 38% .07 Conference ended on a high (55% yes)† 1=yes 0=no 33% 50% -.18* Positive movement or mutual understanding between offender and victim expressed in words (31% mostly or fully) ‡ 1=mostly or fully 0=somewhat or not at all 41% 41% .00 Positive movement or mutual understanding between offender and victim expressed symbolically (20% mostly or fully) ‡ 1=mostly or fully 0=somewhat or not at all 36% 42% -.05 Measures of procedural justice Process of deciding outcome was fair (89% yes) 1=yes 0=no 39% 50% -.07 Conference coordinator negotiated outcome well (89% yes) 1=yes 0=no 41% 40% .00 Outcome decided by genuine consensus (64% yes) 1=yes 0=no (offender accepts/accepts with reluctance police officer's modification of outcome) 33% 53% -.19* Offender understood relationship between offense and outcome (80% mostly or fully) 1=mostly or fully 0=somewhat or not at all 37% 56% -.16 Offender appeared "powerless" in room full of adults (38% some/fair/to high degree) 1=some/fair/to high degree 0=not at all 47% 36% .11 Police officer treated the offender with respect (99% agree) 1=agree 0=disagree 41% 0% .09 Offender treated police officer with respect (96% agree) 1=agree 0=disagree 38% 100% -.26** Coordinator permitted everyone to have a say (98% agree) 1=agree 0=disagree 39% 100% -.18 Coordinator seemed impartial (93% agree) 1=agree 0=disagree 41% 33% .04 † "Ended on a high" refers to the SAJJ observer's determination that there was mutual good will and positive movement between the offender and victim by the end of the conference. ‡ Percentages are based on the 71 conferences for which a victim (or victim representative) was present. * p < .10 ** p < .05 3 Table 3. Logistic regression results for offender and conference characteristics and re- offending (1 = re-offending) Equation 1: Full model Predictor Beta Odds ratio Sex/race-ethnicity (1=Aboriginal male or female) 1.66 5.31 Sex/race-ethnicity (1=non-Aboriginal male) 1.52** 4.55 Pre-conference offending (1=yes) 1.09* 2.97 3 or more residential movements (1=yes) 2.17** 8.75 Offender showed remorse (1=yes) -1.12** .33 Genuine consensus in outcome decision (1=yes) -1.30** .27 Constant (B0) -1.59* N = 89 80% cases correctly classified Pseudo-R2 = 43% χ2 = 34.0 *** Equation 2: Reduced model Predictor Beta Odds ratio Sex/race-ethnicity (1=Aboriginal male or female) 1.49 4.45 Sex/race-ethnicity (1=non-Aboriginal male) 1.29* 3.63 Pre-conference offending (1=yes) 1.11** 3.04 3 or more residential movements (1=yes) 1.73** 5.67 Constant (B0) -2.65** N = 89 72% cases correctly classified Pseudo-R2 = 30% χ2 = 23.0 *** * p < .10 ** p < .05 4 Table 4. Conditional probabilities of re-offending for various case scenarios Predictor Logit B0 + B1 … + Bi Probability 1 / 1 + e -logit Aboriginal young people, male and female Scenario 1 – high-risk youth, poor conference elements 3.338 .94 Sex/race-ethnicity (1=Aboriginal male or female) Pre-conference offending (1=yes) Three or more residential movements (1=yes) Offender showed remorse (0=no) Genuine consensus in outcome decision (0=no) Scenario 2 – high-risk youth, good conference elements .922 .68 Sex/race-ethnicity (1=Aboriginal male or female) Pre-conference offending (1=yes) Three or more residential movements (1=yes) Offender showed remorse (1=yes) Genuine consensus in outcome decision (1=yes) Scenario 3 – low-risk youth, poor conference elements .079 .52 Sex/race-ethnicity (1=Aboriginal male or female) Pre-conference offending (0=yes) Three or more residential movements (0=yes) Offender showed remorse (0=no) Genuine consensus in outcome decision (0=no) Scenario 4 – low-risk youth, good conference elements -2.337 .12 Sex/race-ethnicity (1=Aboriginal male or female) Pre-conference offending (0=yes) Three or more residential movements (0=yes) Offender showed remorse (1=yes) Genuine consensus in outcome decision (1=yes) non-Aboriginal young people Scenario 5 – high-risk male, poor conference elements 3.184 .93 Sex/race-ethnicity (1=non-Aboriginal male) Pre-conference offending (1=yes) Three or more residential movements (1=yes) Offender showed remorse (0=no) Genuine consensus in outcome decision (0=no) Scenario 6 – high-risk female, poor conference elements 1.669 .80 Sex/race-ethnicity (0=non-Aboriginal female) Pre-conference offending (1=yes) Three or more residential movements (1=yes) Offender showed remorse (0=no) Genuine consensus in outcome decision (0=no) Scenario 7 – high-risk male, good conference elements .768 .65 Sex/race-ethnicity (1=non-Aboriginal male) Pre-conference offending (1=yes) Three or more residential movements (1=yes) Offender showed remorse (1=yes) Genuine consensus in outcome decision (1=yes) 5 Table 4 cont. Scenario 8 – high-risk female, good conference elements -.747 .35 Sex/race-ethnicity (0=non-Aboriginal female) Pre-conference offending (1=yes) Three or more residential movements (1=yes) Offender showed remorse (1=yes) Genuine consensus in outcome decision (1=yes) Scenario 9 – low-risk male, poor conference elements -.075 .48 Sex/race-ethnicity (1=non-Aboriginal male) Pre-conference offending (0=no) Three or more residential movements (0=no) Offender showed remorse (0=no) Genuine consensus in outcome decision (0=no) Scenario 10 – low-risk female, poor conference elements -1.59 .21 Sex/race-ethnicity (0=non-Aboriginal female) Pre-conference offending (0=no) Three or more residential movements (0=no) Offender showed remorse (0=no) Genuine consensus in outcome decision (0=no) Scenario 11 – low-risk male, good conference elements -2.491 .11 Sex/race-ethnicity (1=non-Aboriginal male) Pre-conference offending (0=no) Three or more residential movements (0=no) Offender showed remorse (1=yes) Genuine consensus in outcome decision (1=yes) Scenario 12 – low-risk female, good conference elements -4.006 .03 Sex/race-ethnicity (0=non-Aboriginal female) Pre-conference offending (0=no) Three or more residential movements (0=no) Offender showed remorse (1=yes) Genuine consensus in outcome decision (1=yes) 6 Table 5. Predictions of re-offending by SAJJ observers, police officers, coordinators, offenders, and victims SAJJ observers (N=89) Police officers (N=89) Coordi- nators (N=89) Offenders (N=93) Conference victims (N=61) Correctly predicted offending or non-offending 57% 65% 55% 60% 46% False positive (wrongly predicted offending) 17% 14% 10% 3% 38% False negative (wrongly predicted non-offending) 16% 11% 9% 25% 3% Do not know or unsure 10% 10% 26% 12% 13% Summary Correct prediction, all cases 57% 65% 55% 60% 46% Correct prediction, excluding do not know or unsure 64% 73% 74% 68% 53% Note: Predictions made by SAJJ observers, police officers, and coordinators were of the 89 primary offenders in conferences having multiple offenders. Predictions were made by all of the offenders interviewed in 1998 and the conference victims interviewed in 1998. 7 APPENDIX There was a generally good degree of consistency across the police, coordinators, and SAJJ observers for remorse (paired group comparisons ranged from 57% to 66% agreement, see Appendix, Table A) and an even higher level of consistency for judgements about how conferences ended, that is, "on a high" (paired group comparisons ranged from 73% to 75% agreement). The same is true for judgements about whether a conference was a "waste of time". Paired group comparisons for SAJJ observers, police officers, and coordinators showed that agreement rates ranged from 69% (between coordinator and police officer) to 90% (between SAJJ observer and coordinator). For characterising the outcome decision (which had three options, "genuine consensus", "acceptance", and "acceptance with reluctance"), the paired group comparisons ranged from 60% (between coordinator and police officer) to 71% (between the SAJJ observer and coordinator). In general we find that the police officers tended to view the conference and the offender's behaviour more optimistically and positively than the coordinators and researchers. When, in 1999, the results of the coordinator and police surveys were presented to these groups, they were initially surprised to see the higher ratings by the police for many items. If anything, the two groups would have expected the reverse. The explanation the police gave was that compared to what they saw in the field or in the station, the civility of the offender and other conference participants, coupled with the coolness of the deliberative process, was a decided improvement. In light of the high numbers in each group (5 researchers, 10 coordinators, and 21 police officers), the fact that the coordinators and police officers are criminal justice workers, not researchers, and several items asked them to judge their own behaviour, we are pleased with the levels of agreement across the three groups. For comparison, we summarize the inter-rater reliability of similar items in the RISE project. Harris and Burton (1996, 1998) assessed the agreement rates for observers (2 per conference or court case) in a sample of 45 RISE conference and court cases. Following each case, observers independently completed a "global observation instrument" consisting of 40 questions asking observers to rate various aspects of the case – e.g., "How much reintegrative shaming was expressed?", "How sorry/remorseful was the offender for their actions?" Item responses were given on an 8- point Likert scale ("none" to "very much"; "not at all sorry" to "very sorry"). Agreement rates across the 40 items ranged from 42% to 98% agreement. For "How much reintegrative shaming was expressed?", overall agreement (i.e., for conference and court cases) was 80%. 8 For "How sorry/remorseful was the offender for their actions", overall agreement was 73%. Agreement was much lower for items relating to the outcome decision. For "How much did the offender contribute to the conference/court outcome?", overall agreement was 53%. Similarly, for "How much was the offender coerced into accepting the conference/court case outcome?", overall agreement was 49%. Because our agreement rates are similar to those achieved in the RISE research for judgements about remorse and higher for judgements about outcome decisions, even across groups of observers from very different professional backgrounds, our view is that the SAJJ observations are reliable. An analysis of the phi coefficients of re-offending with the police and coordinator remorse and consensus variables showed that both were significantly related to re-offending for both groups (Appendix, Table B). We also ran the logistic regression analysis, using the police and coordinator remorse and genuine consensus variables (see Appendix, Table C). When police measures of remorse and consensus were entered, the model correctly classified 79% of cases and explained 52% of the variation in re-offending. When the coordinator measures were entered, the model correctly classified 78% of cases and explained 42% of the variation in post-intervention offending. In both the police model and coordinator model, remorse remained a significant predictor. The consensus variable neared statistical significance for the coordinators; thus, we are satisfied that the coordinator model replicates the SAJJ model. However, consensus was not a significant predictor of re-offending for the police in the logistic regression analysis. We suspect that one reason for this result is that the remorse variable was so highly predictive of re-offending for the police, it overwhelmed the effect of the consensus variable. 9 Appendix Table A. Paired group comparisons on key conference variables (remorse, consensus, waste of time, ended on high), percent with same judgments "To what extent was the YP remorseful for their actions?" (mostly/fully) coordinator police officer SAJJ observer coordinator - 66 57 police officer - - 64 SAJJ observer - - - "How would you characterise the outcome decision?" (genuine consensus) coordinator police officer SAJJ observer coordinator - 60 71 police officer - - 69 SAJJ observer - - - "The conference was largely a waste of time." (agree/strongly agree) coordinator police officer SAJJ observer coordinator - 69 90 police officer - - 70 SAJJ observer - - - "The conference ended on a 'high' – a positive note of repair and goodwill." (agree/strongly agree) coordinator police officer SAJJ observer coordinator - 75 73 police officer - - 75 SAJJ obsever - - - Appendix Table B. Bivariate relationships between selected variables and re-offending for coordinator and police Remorse Coordinator: YP was remorseful (54% mostly or fully) 1=mostly or fully 0=somewhat or not at all 27% 59% -.34** Police: YP was remorseful (56% mostly or fully) 1=mostly or fully 0=somewhat or not at all 20% 66% -.47** Genuine consensus Coordinator: Outcome decided by genuine consensus (51% yes) 1=yes 0=no (offender accepts/accepts with reluctance police officer's modification of outcome) 31% 50% -.19* Police: Outcome decided by genuine consensus (48% yes) 1=yes 0=no (offender accepts/accepts with reluctance police officer's modification of outcome) 30% 50% -.20* * p < .10 ** p < .05 10 Appendix Table C. Logistic regression results for offender and conference characteristics and re-offending (1 = re-offending) "Coordinator model" Predictor Beta Odds ratio Sex/race-ethnicity (1=Aboriginal male or female) 1.27 3.57 Sex/race-ethnicity (1=non-Aboriginal male) 1.22* 3.42 Pre-conference offending (1=yes) 1.40** 4.06 3 or more residential movements (1=yes) 1.73** 5.64 Offender showed remorse (1=yes) -1.35** .26 Genuine consensus in outcome decision (1=yes) -0.81 .45 Constant (B0) -1.67** N = 89 78% cases correctly classified Pseudo-R2 = 42% χ2 = 33.6 ** "Police model" Predictor Beta Odds ratio Sex/race-ethnicity (1=Aboriginal male or female) 1.49 4.44 Sex/race-ethnicity (1=non-Aboriginal male) 1.85** 6.36 Pre-conference offending (1=yes) 1.51** 4.54 3 or more residential movements (1=yes) 1.71** 5.54 Offender showed remorse (1=yes) -2.35** .10 Genuine consensus in outcome decision (1=yes) -0.48 .62 Constant (B0) -1.84** N = 89 79% cases correctly classified Pseudo-R2 = 52% χ2 = 43.7 ** * p < .10 ** p < .05 YOUTH JUSTICE CONFERENCING AND RE-OFFENDING* RESEARCH ON RESTORATIVE JUSTICE, CONFERENCING, AND RE-OFFENDING Table 1. Pre- and post-conference offending Summary "How would you characterise the outcome decision?" (genuine consensus) "The conference was largely a waste of time." (agree/strongly agree) "The conference ended on a 'high' – a positive note of repair and goodwill." (agree/strongly agree) 
work_huzvkblxpbe4fjfzevn5v3fvga	----	Book reviews 59 ethics. This range means that the collection can be read in two main ways. First, it can be read simply for factual information. In this respect, perhaps unsurprisingly, it is the con- tributions that are predominantly medicine-based and law-based that are generally the most useful. Secondly, the book can be read for clarification of the ethical issues surrounding reproductive technology. Here, the reader is immediately confronted by a catholicity of the concepts of ethics. For example, ethics refers sometimes to what appears on the agenda of a hospital ethics commit- tee (in Richard West's contribution), to a specific moral or religious stance which is commended to practitioners (in the contributions of Richard Lilford and Jack Mahoney), and sometimes to a branch of academic philosophy (in Anne Fagot-Largeault's contribution). This catholicity does of course represent the wide range of opinion in medical ethics, but in a single collec- tion it inevitably poses a problem. Despite the convenient grouping of the book according to substantive topics, the sheer range of approaches makes it difficult for the reader to identify the precise points at which different contributors would agree or disagree. The discussions go part of the way towards such an identifica- tion, but, like most conference dis- cussions, they reveal a fair amount of mutual misunderstanding between contributors. It is probably for these reasons that the most successful part of the book is where withholding neonatal care is examined first by Alexander Campbell as a paediatri- cian and, in response, by Jennifer Jackson as a philosopher. Here, and in the usefully delimited discussion that follows, genuine debate is discernible, taking the level of analysis beyond that of mere juxtaposition of diverse views. ELIZABETH KINGDOM Department of Sociology, Social Policy and Social Work Studies, University of Liverpool. Protecting the vulnerable: autonomy and consent in health care Edited by Margaret Brazier and Mary Lobjoit, 183 pages + xi, London, 1991. Routledge, £30.00 This volume in the 'Social ethics and policy' series is a collection of papers, some of which were originally given as part of a public lecture series in Manchester in 1988. The unifying theme is the ethical and legal problems of making health-care decisions in cases where patients are, or at least are thought to be, partially or completely incapable of making valid decisions for themselves. This unity at one level of course conceals enormous variety at another, since the forms which such actual or apparent incompetence can take are incredibly varied, as are the decisions which have to be taken in providing care for such patients. The ethical problems generated are equally varied. Thus the papers range over very premature babies, people with mental handicap, women undergoing sterilisation, subjects of non-therapeutic research, people with suicidal tendencies and those receiving psychotherapy, especially students. In addition to the discussions of particular types of decision, there are also more theoreti- cal papers about the nature of auto- nomy, informed consent and the right to information. The papers on particular types of case are on the whole sensible, practical and sensitive, but hardly ground- breaking. The policy recommenda- tions made are usually plainly right but there often seems to be a reluc- tance really to get to grips with the ethical complexities of a situation. For instance, Heather Draper, writing about the sterilisation of mentally handicapped women, recommends a review of the law concerning wardship and research into the attitudes of mentally disabled women towards pregnancy, labour and children - both eminently sensible suggestions. But the ethical issue in such cases - the balance to be drawn between the interests of the woman herself, those of the people who care for her and those of the potential child - is referred to but never really explored in her paper, and she comes to the conclusion that sterilisations must be 'solely in the interests of the individual concerned'. An exception to this line of criticism is Gavin Fairbairn's paper 'Suicide and justified paternalism'. Drawing both on his reflections on his own profes- sional experience and on a subtle philosophical analysis, Fairbairn succeeds in moving beyond the tired discussions of the right to suicide and gives an account of the ethics of pre- venting suicide which makes due allowance for the interests of those other than the suicider who are involved. In the course of this, he also has interesting general things to say about, for instance, paternalism: much, he says, of what passes for paternalism is really 'self-interested pseudo-paternalism because it is more concerned with protecting its perpe- trator than with caring for the welfare of the individual in question'. The more theoretical papers are variable in quality. Margaret Brazier very thoroughly examines the legal problems of treating incompetent patients, but rightly concludes that the rights of, for example, mentally handicapped people depend far more on general social attitudes to disabled people than on legal frameworks. Richard Lindley's paper on a doctor's duty to inform patients of the facts in cases of surgery comes to interesting conclusions, recommending a form of the Bolam test which takes in groups other than medical experts. Harry Lesser provides a useful discussion of the patient's right to information. Alastair Campbell's paper, however, seems simply confused. He makes great play with the notion that patients are dependent on their doctors, as they clearly are, but seems to think that that implies limits to the value of patient autonomy rather than being precisely the reason why respect for patient autonomy is needed. ERIC MATTHEWS Department of Philosophy, University ofAberdeen. Organ replacement therapy: ethics, justice, commerce First joint meeting of ESOT (European Society for Organ Transplantation) and EDTA/ERA(European Renal Association) in Munich, 11-14 December, 1990. Edited by W Land and J B Dossetor, 578 pages + xxiii, London and Berlin, 1991. Springer- Verlag, ,C78.50 The contents pages of this volume list 81 papers, five transcripts of plenary discussion sessions, and 201 contri- butors, giving some idea as to the huge input the conference it is based upon received. The articles range in kind from those which are more or less purely medical, though having o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .1 9 .1 .5 9 -a o n 1 M a rch 1 9 9 3 . D o w n lo a d e d fro m http://jme.bmj.com/ 60 Book reviews some bearing on certain kind of moral discussion, for instance, 'Results of an Audit of Living Related Renal Allograft Donation from a Single Centre', all the way to those which are more or less entirely moral philoso- phy, though having some bearing on what one should or should not do in transplant surgery, for example, 'Is There a Universal System of Ethics, or Are Ethics Culture Specific?' There is an attempt here to cover all of the current ethical debates in transplantation medicine; the book includes papers related to living donor organ donation, to the buying and selling of organs and the growing international business in transplanta- tion, to the problems associated with cadaver explantation, and to the dif- ficulties of fair distribution of the restricted numbers of organs avail- able for transplant. At the same time, the volume gives an idea of the state of the art in transplant techniques, and some sense of where the cutting edge of this branch of medical sci- ence might be. Partial liver trans- plants, domino heart transplants, pig-person transplants, fetal tissue transplants, all have articles devoted to them in these pages. An omission, however, is any direct consideration of the current position on artificial organs. Organ Replacement Therapy, looked at as a philosophical discussion of moral issues, will inevitably leave something to be desired. The argu- ments of the lawyers, theologians, philosophers and doctors, are unavoidably underdeveloped. The first, and more significant, con- sequence of this is that fundamental assertions made by contributors sometimes escape scrutiny. For instance, in the discussion of brain death (is it tantamount to death?) all participants base their arguments on the distinction between 'person' and 'human being' and the impression given is that this is a settled fact of life. It is nothing of the sort. A second, less serious, consequence is that where other assumptions (for instance that clinicians should be involved in organ allocation decisions) are put under the microscope, and subjected to useful inspection, the discussion is shortlived and inconclusive. It is perhaps most accurate to describe this book as a panoramic snapshot (if that is not a contradic- tion in terms) of the huge and com- plex scenery of transplant medicine and ethics at a particular moment in its evolution. Most interestingly, that panorama shows distinct and, on occasion, contradictory, cultural perspectives. One instance of this is the discussion of the morality of rewarded gifting (that is, offering an organ donor something, over and above compensation, for the dona- tion of his or her organ). Into this discussion are fed views from India, Iran, and Pakistan, as well as the perhaps more familiar perspectives of Western Europe and North America. The value of Organ Replacement Therapy, then, lies not in its taking a moral idea and subjecting it to rigorous and careful philosophical scrutiny, but rather in its being a source book of differing points of view and rich examples, worth extended philosophical reflection. NEIL PICKERING Centre for the Study ofPhilosophy and Health Care, University College, Swansea. The values of psychotherapy Jeremy Holmes and Richard Lindley, ix + 256 pages, Oxford, Oxford University Press, £7.99 Inside an offputting black and white striped cover is a very solid, clear and intelligent book which argues the case for psychotherapy from the combined experience and perspectives of an analytic psychotherapist and a philos- opher. This is a useful book for those who want to know more about what distinguishes the different forms of psychotherapy (there is a clear description in the first chapter and the glossary at the end is helpful). It is also useful in dispelling many of the anti-psychotherapeutic myths and prejudices that still lurk in our culture, - providing a response to those who argue that psychotherapy 'promotes dependence', is an 'inter- minable', 'expensive' and 'elitist' form of treatment. It addresses all these issues and many more. It sees the promotion of emotional auton- omy as the core value of all psychotherapeutic treatment and from this perspective makes out a cogent case not simply for it to be made more widely available in the health service but for psychotherapy to be recognised as a necessary and integral part ofwhat the health service should provide for every citizen of a civilised democracy. In the first chapter the authors describe the task they have set them- selves in the first half of the book: 'We shall present a philosophical, ethical, technical, economic and political case for seeking a wide expansion of publicly funded psychotherapy'. First of all they pose the question 'What is psychotherapy?' and define it as 'the systematic use of a relationship between therapist and patient . . . to produce changes in cognition, feelings and behaviour'. They claim that the common ground or essential elements present in all psychotherapies are structure, space and relationship, and go on to classify the different therapies and their trainings with this in mind. I think it is in this area that the book runs into some difficulties. In order to make their case, they have to empha- sise the common ground between therapies and minimise the differ- ences. Not wanting to identify with what one might call the psychoana- lytic purism or elitism of parts of the psychoanalytic establishment, they have bent over backwards to take an eclectic and even-handed stance, implying that all forms of therapy have equal value and that the important thing is that the range and diversity is available. In effect, in many parts of the book, for example chapter 6, the book is arguing its case from the perspective and experience of analytic work so it is a little surprising that it doesn't make more explicit what is of particular value in applying psychoanalytic insight to the assessment and treat- ment of patients even if not in pure form. Is it really not of great impor- tance or significance that some train- ings do not require the trainees to undergo therapy themselves? Is the promotion of emotional autonomy of central and crucial significance to all different forms of therapy or do other values in some cases supersede this? The second chapter looks at the case against psychotherapy and ques- tions whether it is scientific and testable. It looks at arguments and counter-arguments in a coherent way and comes to the conclusion: 'It is extremely difficult to form a balanced, objective view of the scientific status of psychoanalysis and psychotherapy' and later on 'But is psychotherapy effective? This for most people is the decisive issue, rather than whether psychotherapy is strictly speaking a science, a pseudoscience, or perhaps o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .1 9 .1 .5 9 -a o n 1 M a rch 1 9 9 3 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_i7bpgrh6lfgepmousgl7a6r37y	----	Munich Personal RePEc Archive Incentives and justice for sequencing problems. Mitra, Manipushpak and De, Parikshit Indian Statistical Institute, Kolkata March 2015 Online at https://mpra.ub.uni-muenchen.de/65447/ MPRA Paper No. 65447, posted 07 Jul 2015 04:24 UTC INCENTIVES AND JUSTICE FOR SEQUENCING PROBLEMS PARIKSHIT DE AND MANIPUSHPAK MITRA ABSTRACT. We address the mechanism design issue for the sequencing problem. We identify the just sequencing rule that serves the agents in the non-increasing order of their waiting costs and prove that it is a Rawlsian rule. We identify all rVCG mech- anisms that implement the just sequencing rule. The other properties of the just se- quencing rule that we identify are the following. It is an affine cost minimizer. It can be implemented with budget balanced rVCG mechanisms. Finally, when waiting cost and processing time are private information, we identify all generalized rVCG mechanisms that ex-post implement the just sequencing rule. JEL Classifications: C72, D63, D82. Keywords: sequencing, implementation, outcome efficient sequencing rule, just se- quencing rule, budget balance, ex-post implementation. 1. INTRODUCTION In this paper we address the mechanism design issue for the sequencing problem where agents have quasi-linear preferences. The setting comprises of a finite set of agents each of whom has one job to process using one facility. The facility can only handle one job at a time. No job can be interrupted once it starts processing. Each job is characterized by processing time and waiting cost. The latter represents the agent’s disutility for waiting one unit of time. There is a well established literature in this direction (see Dolan [10], Duives, Heydenreich, Mishra, Muller and Uetz [11], Hain and Mitra [13], Mitra [25], Moulin [27] and Suijs [33]). A well-known and well studied concept is the outcome efficient sequencing rule that minimizes the aggregate job completion cost of the agents. Outcome efficiency, as pointed out by Smith [32], requires that the jobs of the agents are processed in the non-increasing order of their urgency index where urgency index of any agent as the ratio of his waiting cost and his processing time. It is well-known that, as long as preferences are ‘smoothly connected’ (see Holmström [15]), outcome efficienct rules The authors would like to thank Debasis Mishra, Suresh Mutuswami and Arunava Sen for helpful com- ments and suggestions. 1 2 PARIKSHIT DE AND MANIPUSHPAK MITRA can be implemented in dominant strategies if and only if the mechanism is a Vickrey- Clarke-Groves (VCG) mechanism (see Clarke [8], Groves [12] and Vickrey [35]). For the sequencing problem outcome efficiency was analyzed by Dolan [10], Mitra [25] and Suijs [33]. The main contribution of this paper is to address the implementability issue of the Rawlsian sequencing rule which is based on John Rawls’ principle of distributive jus- tice (see Rawls [30]). The Rawlsian sequencing rule first identifies the maximum agent specific job completion cost for each order of serving and then picks that order which minimizes this maximum agent specific job completion cost. We show that a sequenc- ing rule for which agents are served in the non-increasing order of their waiting costs is a Rawlsian sequencing rule. We refer to this rule as the just sequencing rule and show that this Rawlsian rule is implementable in dominant strategies. We identify all ‘rVCG mechanisms’ that implements the just sequencing rule. Our result on implementation of the just sequencing rule shows compatibility of in- centives and justice. In the mechanism design literature without transfers where pref- erences of the agents are defined using distance from the bliss points, Chichilnisky and Heal [3] argued that Rawlsian rules are “locally dictatorial” and hence imple- mentable. However, in the mechanism design literature with transfers, this compat- ibility of incentives and justice is indeed rare. Papers by Deb and Mishra [9] and Lavi, Mu’alem and Nisan, N. [22] show that the Rawlsian allocation is incompatible with implementability in dominant strategies. To the best of our knowledge, the only other paper that shows this compatibility between incentives and justice is by Velez [34] for the (house) allocation problems.1 In the mechanism design literature a classic contribution is due to Roberts [31] who proved that, with unrestricted domains, if an allocation rule is implementable in dom- inant strategies, then it must be an ‘affine maximizer’ allocation rule. For the sequenc- ing problem the correct adoption of Roberts’ affine maximizer allocation rules is the ‘affine cost minimizer sequencing rules’. It is quite easy to verify that the outcome ef- ficient sequencing rule is an affine cost minimizer. Interestingly, the just sequencing rule, in spite of being a Rawlsian sequencing rule, is an affine cost minimizer. Consider the sequencing problem where the processing time of the agents are iden- tical. Such situations are referred to as the queueing problem. Queueing problems has been analyzed extensively from both normative and strategic viewpoints (see Chun [4], Chun, Mitra and Mutuswami [5], Hashimoto and Saitoh [14], Kayi and Ramaekars 1Velez [34] showed that the Generalized Money Rawlsian Fair solutions implements the no envy solu- tion in Nash and Strong Nash equilibria. INCENTIVES AND JUSTICE 3 [20], Maniquet [23], Mitra [24], Mitra and Mutuswami [29] and Mukherjee [28]). For the queueing problem, the outcome efficient sequencing rule implies that the rule is also the just sequencing rule. However, for sequencing problems with non-identical processing time across agents, outcome efficient sequencing rule is different from the just sequencing rule and hence such sequencing problems brings out the trade-off be- tween outcome efficient sequencing rule and the just sequencing rule. The importance of finding balanced VCG mechanisms to implement outcome effi- ciency for canonical allocation problems was highlighted by Zhou [37]. However, for many economic environments implementing outcome efficiency with balanced trans- fers is not possible (see Hurwicz [16], Hurwicz and Walker [17] and Walker [36]). For sequencing problem it is possible to get budget balanced (or first best) implementa- tion with the outcome efficiency (see Mitra[25] and Suijs [33]). We show that we can also find rVCG mechanisms that implements the just sequencing rule with balanced transfers and identify the set of all such balanced rVCG mechanisms. Again, for the queueing problem, the set of all balanced rVCG mechanisms coincide with the set of all balanced VCG mechanisms.2 The just sequencing rule is independent of the processing time of the agents. There- fore, if we have a two-dimensional incentive problem, where waiting cost and process- ing time are private information, ex-post implementability of the just sequencing rule is possible. If processing times are private information, we have mechanism design prob- lem under interdependent value, as the processing time generates interdependence across agents. Hence the correct notion of implementation is ex-post implementation. Specifically we show that the just sequencing rule is ex-post implementable by making some minor ‘modification’ in the rVCG mechanisms. Moreover, given the earlier re- sults on implementability of the just sequencing rule with balanced rVCG mechanisms, it follows that ex-post implementability with balanced transfers is also a possibility. Jehiel, Meyer-ter-Vehn, Moldovanu, and Zame [18] proved that the only determinis- tic social choice functions that are ex-post implementable in generic mechanism de- sign frameworks with multidimensional signals and interdependent valuations are those rules for which the same alternative is chosen irrespective of agents’ signals, that is, the outcome should be independent of the interdependent signals. In sequenc- ing with two-dimensional incentive problem, one dimension is waiting cost which is the private value and the other dimension is processing time that generates interde- pendence in terms of cost of completion time. The just sequencing rule is non-trivial 2The literature on balanced VCG mechanisms for the queueing problem includes paper like Chun , Mitra and Mutuswami [6], Kayi and Ramaekars [20] and Mitra [24]. 4 PARIKSHIT DE AND MANIPUSHPAK MITRA in terms of the waiting cost or private value dimension and is independent of the in- terdependence inducing processing time (like the independence of the interdependent signal required by Jehiel, Meyer-ter-Vehn, Moldovanu, and Zame [18] for ex-post im- plementability) and hence, the just sequencing rule is a non-trivial rule which is ex- post implementable. Moreover, for the outcome efficient sequencing rule the profile contingent order is dependent on the processing time and hence it is not ex-post im- plementable under this two-dimensional incentive problem.3 The paper is organized in the following way. In Section 2, we provide the framework of the sequencing problems. In Section 3, we introduce and analyze the just sequencing rule. In Section 4 we deal with properties of the just sequencing rule. This is followed by Section 5 which is the conclusion. 2. THE FRAMEWORK Consider a finite set of agents N = {1, 2, . . . , n} in need of a facility that can be used sequentially. Using this facility, the agents want to process their jobs. The job processing time can be different for different agents. Specifically, for each agent i ∈ N, the job processing time is given by si > 0. Let R++ be the positive orthant of the real line R and let θi Si measure the cost of job completion for agent i ∈ N where Si ∈ R++ is the job completion time for this agent and θi ∈ Θ := R++ denotes his constant per-period waiting cost. Due to the sequential nature of providing the service, the job completion time Si for agent i depends not only on his own processing time si but also on the processing time of the agents who precedes him in the order of service. By means of an order σ = (σ1, . . . , σn) on N, one can describe the positions of each agent in the order. Specifically, σi = k indicates that agent i has the k-th position in the order. Let Σ(N) be the set of n! possible orders on N. We define Pi(σ) = { j ∈ N \ {i} | σj < σi} to be the predecessor set of i in the order σ, that is, set of agents served before agent i in the order σ. Similarly, P′i (σ) = { j ∈ N \ {i} | σj > σi} denotes the successor set of i in the order σ, that is, set of agents served after agent i in the order σ. Let s = (s1, . . . , sn) ∈ S := R n ++ denote the vector of processing time of the agents. Given a vector s = (s1, . . . , sn) ∈ S and an order σ ∈ Σ(N), the cost of job completion for agent i ∈ N is θi Si(σ), where the job completion time is S j(σ) = ∑ j∈Pi(σ) s j + si. The agents have quasi-linear utility of the form vi(σ, τi ; mi = (θi , si); s−i) = −θi Si(σ) + τi where σ is the order, τi ∈ R is the transfer that he receives and the parameters of the 3Ex-post implementability literature includes papers by Bergemann and Morris [1], Bikhchandani [2], Chung and Ely [7], Jehiel, Meyer-ter-Vehn, Moldovanu and Zame [18], Jehiel and Moldovanu [19], and, Karsten, Kittsteiner, and Benny Moldovanu [21]). For the sequencing problem with private information only in processing time, incentive issues were addressed by Hain and Mitra [13] and Moulin [27]. INCENTIVES AND JUSTICE 5 model are agents own parameter mi = (θi , si) that constitutes of the waiting cost θi and the processing time si, and, more importantly, the processing time of the other agents that determines agent i’s job completion time Si(σ). Specifically, given a commonly known job processing time vector s = (s1, . . . , sn) ∈ S and an order σ ∈ Σ(N), the utility of agent i, with just the waiting cost parameter θi, reduces to vi(σ, τi ; mi = (θi , si); s−i) := Ui(σ, τi ; θi) = −θi Si(σ) + τi = −θi  si + ∑ j∈Pi(σ) s j   + τi . If we assume that both waiting cost and processing time are private information, then we have a general sequencing problem for N agents which we denote by ΩN = (Θ n, S). In this context we associate the utility function vi(.) for each i ∈ N. If the processing time vector s ∈ S is given and waiting cost is private information, then we have a sequencing problem ΩsN = (Θ n, s) and in that case the utility function reduces to Ui(.) (from vi(.)) for each i ∈ N. Except for Subsection 4.3, we will deal with Ω s N . Hence our first objective is to design direct revelation mechanisms for any given ΩsN . For any set X, let |X| denote the cardinality of X. A typical profile of waiting costs is denoted by θ = (θ1, . . . , θn) ∈ Θ n, and, for any i ∈ N, θ−i ∈ Θ |N\{i}| denotes the profile (θ1 . . . θi−1, θi+1, . . . θn) which is obtained from the profile θ by eliminating i’s waiting cost. For a given sequencing problem ΩsN , a (direct revelation) mechanism is (σ, τ) that constitutes of a sequencing rule σ and a transfer rule τ. A sequencing rule is a function σ : Θn → Σ(N) that specifies for each profile θ ∈ Θn a unique order σ(θ) = (σ1(θ), . . . , σn(θ)) ∈ Σ(N). 4 A transfer rule is a function τ : Θn → Rn that specifies for each profile θ ∈ Θn a transfer vector τ(θ) = (τi(θ), . . . , τn(θ)) ∈ R n. Specifically, given any sequencing problem ΩsN and given any mechanism (σ, τ), if (θ′i , θ−i) is the announced profile when the true waiting cost of i is θi, then utility of i is Ui(σ(θ ′ i , θ−i), τi(θ ′ i , θ−i); θi) = −θi Si(σ(θ ′ i , θ−i) + τi(θ ′ i , θ−i). Definition 1. A mechanism (σ, τ) implements the sequencing rule σ in dominant strate- gies if the transfer rule τ : Θn → Rn is such that for any i ∈ N, any θi , θ ′ i ∈ Θ and any θ−i ∈ Θ |N\{i}|, (1) Ui(σ(θ), τi(θ); θi) ≥ Ui(σ(θ ′ i , θ−i), τi(θ ′ i , θ−i); θi). 4The sequencing rule is a function and not a correspondence. Hence, we will require tie-breaking rule to reduce a correspondence to a function which, unless explicitly discussed, will be fixed. We use the following tie-breaking rule. We fix any linear order ≻ on the set of agents N. For any sequencing rule σ and any profile θ ∈ Θn with a tie situation between agents i, j ∈ N, we pick the order σ(θ) with σi(θ) < σj(θ) if and only if i ≻ j. 6 PARIKSHIT DE AND MANIPUSHPAK MITRA Implementation of a rule σ via a mechanism (σ, τ) requires that the transfer rule τ is such that truthful reporting for any agent weakly dominates false reporting irrespec- tive of other agents’ report. 2.1. The outcome efficient sequencing rule. Definition 2. A sequencing rule σ∗ is outcome efficient if for any θ ∈ Θn, σ∗(θ) ∈ argmin σ∈Σ(N) ∑i∈N θi Si(σ). For each profile the outcome efficient sequencing rule selects an order to minimiza- tion the aggregate cost of completion time. Define ui := θi/si as the urgency index of agent i which is the ratio of his waiting cost and his processing time. From Smith [32] we know that for any sequencing problem ΩsN a sequencing rule σ ∗ is outcome efficient if and only if for any profile θ, the selected order σ∗(θ) satisfies condition (OE): For any i, j ∈ N, θi/si ≥ θj/s j ⇔ σ ∗ i (θ) ≤ σ ∗ j (θ). 5 Therefore, outcome efficient sequencing rule requires that the agents are ordered in the non-increasing order of their urgency index. From (OE) it is clear that if θi/si ≥ θj/s j, then Si(σ ∗(θ)) ≤ S j(σ ∗(θ)). Consider the outcome efficient sequencing rule σ∗. It is well-known that VCG mechanisms are the only mechanisms that implement σ∗ (see Holmström [15]). Definition 3. For the outcome efficient sequencing rule σ∗, a mechanism (σ∗, τ) is a VCG mechanism if the transfer rule is such that for all θ ∈ Θn and all i ∈ N, (2) τ∗i (θ) =    hi(θ−i) if P ′ i (σ ∗(θ)) = ∅, hi(θ−i) − si ∑ j∈P′ i (σ∗(θ)) θj otherwise. where the function hi : Θ |N\{i}| → R is arbitrary. Given a sequencing problem ΩsN , for any profile θ ∈ Θ n and any i ∈ N and any j ∈ N \ {i}, let θjsi be the pivotal cost of agent i on agent j. We call this the pivotal cost because θjsi is the incremental cost that agent j has to incur if agent i precedes agent j in any order. The VCG transfer in condition (2) specifies that for any i ∈ N and any θ−i ∈ Θ N\{i}, if θi is such that agent i is served last in the outcome efficient order σ∗(θi , θ−i), that is, if P ′ i (σ ∗(θi , θ−i)) = ∅, then τ ∗ i (θi , θ−i) = hi(θ−i). If, however, θ ′ i is such that agent i is not served last in the order σ∗(θ′i , θ−i), that is, if P ′ i (σ ∗(θ′i , θ−i) 6= ∅, then agent i’s transfer τ∗i (θ ′ i , θ−i) not only has hi(θ−i) but he also has to pay the sum of the pivotal cost that agent i incurs on his followers in the order σ∗(θ′i , θ−i) (that is, the waiting cost of all the agent(s) served after him times his own processing time). 5Given the tie-breaking rule, this selection is unique. INCENTIVES AND JUSTICE 7 The VCG transfer τ∗i (θ) (in condition (2)) for which the agent specific constant func- tions hi(.) are always zero for all agents gives us the pivotal mechanism for implement- ing the outcome efficient order σ∗. The first work that identified the pivotal mechanism for any sequencing problem is by Dolan [10]. It must be pointed out that the specifica- tion (2) of the VCG transfers is the pivotal based representation of the VCG transfers and is not its standard representation. We show that an appropriate transformation of the standard VCG transfers gives us (2). The standard way of specifying the VCG transfers is that for all θ and for all i ∈ N, (3) τ∗i (θ) = − ∑ j∈N\{i} S j(σ ∗(θ))θj + gi(θ−i). 6 Consider the outcome efficient order σ∗(θ) for the profile θ ∈ Θn and suppose that agent i leaves. We define the “induced” order σ∗(θ−i) (of length |N \ {i}|) for the agents in N \ {i} as follows: (4) σ∗j (θ−i) = { σ∗j (θ) − 1 if j ∈ P ′ i (σ ∗(θ)), σ∗j (θ) if j ∈ Pi(σ ∗(θ)). In words, σ∗(θ−i) is the order formed by removing agent i and moving all agents be- hind him up by one position. Given the same tie-breaking rule for the economy with N \ {i} agents, it is easy to see that if σ∗(θ) is outcome efficient for the profile θ, then σ∗(θ−i) is also outcome efficient in N \ {i} for the profile θ−i. Without loss of general- ity, we can write for all θ and all i ∈ N, (A) gi(θ−i) = ∑ j∈N\{i} S j(σ ∗(θ−i))θj + hi(θ−i). By substituting (A) in (3) we get (5) τ∗i (θ) = − ∑ j∈N\{i} [S j(σ ∗(θ)) − S j(σ ∗(θ−i))]θj + hi(θ−i). If for a profile θ ∈ Θn, the outcome efficient order is σ∗(θ) and agent i leaves, then the order σ∗(θ−i) is such that if j ∈ Pi(σ ∗(θ)), then j’s completion time remains unaltered and if k ∈ P′i (σ ∗(θ)), then k’s completion time reduces by si. Hence (6) S j(σ ∗(θ)) − S j(σ ∗(θ−i)) = { si if j ∈ P ′ i (σ ∗(θ)), 0 if j ∈ Pi(σ ∗(θ)). By substituting condition (6) in the transformed VCG transfer (5) and then simplifying it we get the VCG transfer (2).7 6See Mitra [25] and Suijs [33]. 7A similar argument for the pivotal based representation of VCG transfers (like condition (2)) for the queueing problem can be found in Chun, Mitra and Mutuswami [5]. 8 PARIKSHIT DE AND MANIPUSHPAK MITRA 3. AN IMPLEMENTABLE RAWLSIAN SEQUENCING RULE Definition 4. A sequencing rule σ′ is Rawlsian if for each profile θ ∈ Θn, σ′(θ) ∈ min σ∈Σ(N) max j∈N S j(σ)θj. Given any profile θ ∈ Θn, for each order σ ∈ Σ(N), let M(σ) = θj S j(σ) ≥ θk Sk(σ) for all k ∈ N, that is, for the given profile θ and given the order σ, M(σ) is the maximum value of the cost of completion time among all agents in N. The Rawlsian sequencing rule picks that order σ′ ∈ Σ(N) for which M(σ′) is minimum, that is M(σ′) ≤ M(σ) for all σ ∈ Σ(N). Example 1. Consider the sequencing problem ΩsN such that N = {1, 2, 3} and s = (s1 = 1, s2 = 2, s3 = 3). Let the waiting cost vector be θ = (θ1 = 100, θ2 = 5, θ3 = 3). For θ, outcome efficiency uniquely picks the order σ1 = (σ1 = 1, σ2 = 2, σ3 = 3) since u1 > u2 > u2. However, the Rawlsian selection is not unique. For profile θ we have the following: M(σ1 = (σ1 = 1, σ2 = 2, σ3 = 3)) = θ1s1 = 100, M(σ 2 = (σ1 = 1, σ2 = 3, σ3 = 2)) = θ1s1 = 100, M(σ 3 = (σ1 = 2, σ2 = 1, σ3 = 3)) = θ1(s2 + s1) = 300, M(σ4 = (σ1 = 2, σ2 = 3, σ3 = 1)) = θ1(s3 + s1) = 400, M(σ 5 = (σ1 = 3, σ2 = 1, σ3 = 2)) = θ1(s2 + s3 + s1) = 600, and M(σ 6 = (σ1 = 3, σ2 = 2, σ3 = 1)) = θ1(s3 + s2 + s1) = 600. Therefore, for the profile θ, the Rawlsian rule can either pick σ1 or σ2 implying that the Rawlsian rule does not guarantee state contingent unique order selection. Note that the order σ1 also has the property that it serves the agents in the decreasing (hence non-increasing) order of their waiting cost, that is given θ1 > θ2 > θ3, agent 1 is served first followed by agent 2 and then by agent 3. Let the waiting cost vector be θ′ = (θ′1 = 10, θ2 = 5, θ3 = 3). For profile θ ′ we have the following: M(σ1 = (σ1 = 1, σ2 = 2, σ3 = 3)) = θ3(s1 + s2 + s3) = 18, M(σ2 = (σ1 = 1, σ2 = 3, σ3 = 2)) = θ2(s1 + s3 + s2) = 30, M(σ 3 = (σ1 = 2, σ2 = 1, σ3 = 3)) = θ ′ 1(s2 + s1) = 30, M(σ 4 = (σ1 = 2, σ2 = 3, σ3 = 1)) = θ ′ 1(s3 + s1) = 40, M(σ5 = (σ1 = 3, σ2 = 1, σ3 = 2)) = θ ′ 1(s2 + s3 + s1) = 60, and M(σ 6 = (σ1 = 3, σ2 = 2, σ3 = 1)) = θ ′ 1(s3 + s2 + s1) = 60. For the profile θ ′, M(σ1) < M(σk) for all k ∈ {2, . . . , 6} and hence any Rawlsian rule uniquely picks σ1. The above example suggests that we can have profiles θ for which more than one order is Rawlsian. It also seems likely that serving the agents in the non-increasing order of their waiting costs is always Rawlsian. In the next theorem we show that this is indeed the case. INCENTIVES AND JUSTICE 9 Definition 5. A sequencing rule σ̃ is just if for each profile θ ∈ Θn, the chosen order σ̃(θ) satisfies the following property: for any i, j ∈ N such that θi ≥ θj, σ̃i(θ) ≤ σ̃j(θ). 8 Theorem 1. For any ΩsN , the just sequencing rule σ̃ is Rawlsian. Proof: To prove that the just sequencing rule σ̃ is Rawlsian, consider any profile θ ∈ Θn and the just order σ̃(θ). Consider that agent i ∈ N for whom the cost of completion time θi Si(σ̃(θ)) = θi(∑ j∈Pi(σ̃(θ)) s j + si) is maximum under σ̃(θ), that is M(σ̃(θ)) = θi Si(σ̃(θ)). 9 Define O := Pi(σ̃(θ)) ∪ {i} as the set that includes the set of predecessors of i under the order σ̃(θ) and that also includes agent i. Observe that from the defini- tion of just sequencing rule it follows that θj ≥ θi for all j ∈ O. Consider any other order σ ∈ Σ(N) \ {σ̃(θ)}. For this order σ, there is one agent in O who will be served last under σ relative to the other members of O, that is, there exists an agent j ∈ O such that σj > σk for all k ∈ O \ { j}. This means that O ⊆ Pj(σ) ∪ { j}, and hence S j(σ) ≥ Si(σ̃(θ)), that is the completion time of agent j under the order σ is not less than the completion time of agent i under the order σ̃(θ). Therefore, the maximum cost of completion time M(σ) under σ is at least as large as the maximum cost of com- pletion time M(σ̃(θ)) = θi Si(σ̃(θ)) under σ̃(θ) since M(σ) ≥ θj S j(σ) ≥ θj Si(σ̃(θ)) ≥ θi Si(σ̃(θ)) = M(σ̃(θ)). Since the selection of σ was arbitrary the result follows. � Remark 1. Consider any sequencing problem Ωs ∗ N with s ∗ = (s∗1 , . . . , s ∗ n) ∈ S and s∗1 = . . . = s ∗ n so that we have the queueing problem. Then the outcome efficient sequencing rule implies the just sequencing rule and hence a Rawlsian sequencing rule. For the queueing problem Ωs ∗ N , for any profile θ ∈ Θ n, the order of the urgency indexes and that of the waiting costs are identical and hence this implication. Definition 6. For the just sequencing rule σ̃, a mechanism (σ̃, τ̃) is an rVCG mechanism if the transfer rule is such that for all θ ∈ Θn and all i ∈ N, (7) τ̃i(θ) =    hi(θ−i) if P ′ i (σ̃(θ)) = ∅, hi(θ−i) − ∑ j∈P′ i (σ̃(θ)) θjs j otherwise. where the function hi : Θ |N\{i}| → R is arbitrary. Given a sequencing problem ΩsN , for any profile θ ∈ Θ n and any j ∈ N, let θjs j be the minimum cost of agent j, that is the cost that agent j would have incurred if he was served first in any order. Like the VCG transfers (2), the rVCG transfers (7) 8Given the tie-breaking rule, for any profile θ ∈ Θn, this selection σ̃(θ) is unique. 9If there are more than one agent for whom the cost is maximum, pick any one of them arbitrarily. 10 PARIKSHIT DE AND MANIPUSHPAK MITRA specifies that for any i ∈ N and any θ−i ∈ Θ N\{i}, if θi is such that agent i is served last in the just order σ̃(θi , θ−i), then τ̃i(θi , θ−i) = hi(θ−i). If θ ′ i is such that agent i is not served last in the order σ̃(θ′i , θ−i), then agent i’s transfer τ̃i(θ ′ i , θ−i) not only has hi(θ−i) but he also has to pay the sum of the minimum cost of his followers in the just order σ̃(θ′i , θ−i). As long as we are in a sequencing problem Ω s N where the processing time of the agents are not identical, there will be some profile θ and some agent j for whom the minimum cost θjs j will be different from the pivotal cost θjsi of i on j for some i ∈ N \ { j}. Hence the payment amounts in the rVCG transfers are qualitatively different from the payment amounts under the VCG transfers (2) where, recall that, the payment amount is the sum of the pivotal cost of agent i on all his followers in the outcome efficient sequencing order. Therefore, it is easy to see that for the queueing problem Ωs ∗ N we have the following: For any agent j ∈ N, any agent i ∈ N \ {i} and any profile θ, the minimum cost θjs ∗ j is identical to the pivotal cost θjs ∗ i since s ∗ i = s ∗ j and, given the same tie-breaking rule, σ∗(θ) = σ̃(θ). Thus, the VCG-mechanisms and the rVCG mechanisms are identical for the queueing problem Ωs ∗ N . Theorem 2. The just sequencing rule σ̃ is implementable if and only if the mechanism (σ̃, τ) that implements it is an rVCG mechanism. Proof: Consider the just sequencing rule σ̃. We first prove that if a mechanism (σ̃, τ) implements σ̃, then it is necessarily the rVCG mechanism. Consider any agent i ∈ N and fix any profile θ−i ∈ Θ |N\{i}| of all but agent i. By taking any two types θi and θ ′ i for agent i and applying the two implementation inequalities (1) Ui(σ̃(θ), τi(θ); θi) ≥ Ui(σ̃(θ ′ i , θ−i), τi(θ ′ i , θ−i); θi) and (2) Ui(σ̃(θ), τi(θ); θ ′ i) ≤ Ui(σ̃(θ ′ i , θ−i), τi(θ ′ i , θ−i); θ ′ i). In general, from inequalities (1) and (2) we get (8) [Si(σ̃(θ ′ i , θi )) − Si(σ̃(θ))]θi ≥ τi(θ ′ i , θ−i) − τi(θ) ≥ [Si(σ̃(θ ′ i , θi )) − Si(σ̃(θ))]θ ′ i . If θi and θ ′ i are such that σ̃(θ) = σ̃(θ ′ i , θ−i), then Si(σ̃(θ ′ i , θi )) = Si(σ̃(θ)) and inequal- ity (8) gives τi(θ) = τi(θ ′ i , θ−i). Let θ(1) ≥ θ(2) ≥ . . . ≥ θ(n−1) be the decreasing order of the waiting cost for the fixed profile θ−i. Consider any pair (θ t+1 i , θti ) ∈ [θ(t+1), θ(t)] × [θ(t), θ(t−1)]. Using the just sequencing rule σ̃ and applying the implementability condition (8) when the actual profile is (θt+1 i , θ−i) ((θ t i , θ−i)) and the misreport of agent i is θ t i (θ t+1 i ) we get (9) θt+1 i s(t) ≤ τi(θ t+1 i , θ−i) − τi(θ t i , θ−i) ≤ θ t i s(t). Since (9) must hold for all (θt+1 i , θti ) ∈ [θ (t+1) i , θ (t) i ] × [θ (t) i , θ (t−1) i ], it follows that (10) τi(θ t+1 i , θ−i) − τi(θ t i , θ−i) = θ(t)s(t). INCENTIVES AND JUSTICE 11 Condition (10) must hold for all t ∈ {1, . . . , n − 1}. By setting τi(θ n i , θ−i) = hi(θ−i) for any θni ∈ (0, θ(n−1)) and then solving condition (10) recursively we get the rVCG transfers (7). For the converse consider any agent i ∈ N and any profile θ−i. Let θi be the true wait- ing cost of i and Bi(θ ′ i ; θi) := Ui(σ̃(θ ′ i , θ−i), τi(θ ′ i , θ−i); θi) − Ui(σ̃(θi , θ−i), τi(θi , θ−i); θi) be the benefit of agent i from a misreport θ′i . (D1) If θ′i > θi and Pi(σ̃(θi , θ−i)) \ Pi(σ̃(θ ′ i , θ−i)) 6= ∅, then from the just sequencing rule we get θj ≥ θi for all j ∈ Pi(σ̃(θi , θ−i)) \ Pi(σ̃(θ ′ i , θ−i)). Therefore, using any rVCG transfer we get Bi(θ ′ i ; θi) = ∑ j∈Pi(σ̃(θi ,θ−i))\Pi(σ̃(θ′i ,θ−i)) (θi −θj)s j ≤ 0. (D2) If θ′i < θi and Pi(σ̃(θ ′ i , θ−i)) \ Pi(σ̃(θi , θ−i)) 6= ∅, then from the just sequencing rule we get θj ≤ θi for all j ∈ Pi(σ̃(θ ′ i , θ−i)) \ Pi(σ̃(θi , θ−i)). Hence using any rVCG transfer we get Bi(θ ′ i ; θi) = ∑ j∈Pi(σ̃(θ′i ,θ−i))\Pi(σ̃(θi ,θ−i)) (θj −θi)s j ≤ 0. (D3) Finally, if θ′i 6= θi and Pi(σ̃(θ ′ i , θ−i)) = Pi(σ̃(θi , θ−i)), then Bi(θ ′ i ; θi) = 0. Therefore, cases (D1)-(D3) show that agent i cannot benefit from any deviation. Since the selection of agent i was arbitrary, the result follows. � 4. PROPERTIES OF THE JUST SEQUENCING RULE In this section we focus on three nice properties of the just sequencing rule. 4.1. The just sequencing rule as an affine cost minimizer. Roberts [31] defined affine maximizer allocation rules in a general mechanism design framework with quasi- linear preferences. However, sequencing problems are cost problems and hence the appropriate adoption of affine maximizer allocation rule of Roberts to the sequencing problem is the ‘affine cost minimizer sequencing rules’. Definition 7. A sequencing rule σw,κ : Θn → Σ(N) is an affine cost minimizer if for each θ ∈ Θn, σw,κ(θ) ∈ arg minσ∈Σ(N) { κ(σ) + ∑ j∈N w jθj S j(σ) } , where w j ≥ 0 for all j ∈ N with at least one w j > 0 and the function κ : Σ(N) → R is arbitrary. The affine maximizer sequencing rule σ1,0 with κ(σ) = 0 for all σ ∈ Σ(N) and w j = 1 for all j ∈ N gives the outcome efficient sequencing rule, that is σ 1,0 = σ∗.10 Thus, the outcome efficient sequencing rule is a affine cost minimizer. Proposition 1. The just sequencing rule σ̃ is an affine cost maximizer. 10The equality σ1,0 = σ∗ is with the implicit assumption that the tie-breaking rule followed to obtain σ1,0 is identical to the tie-breaking rule of σ∗. 12 PARIKSHIT DE AND MANIPUSHPAK MITRA Proof: To prove that the just sequencing rule is a affine cost minimizer, we show that the affine cost minimizer sequencing rule σw ∗,0 with κ(σ) = 0 for all σ ∈ Σ(N) and w∗j = 1/(∏r 6= j sr) > 0 for all j ∈ N coincides with the just sequencing rule σ̃. Consider any profile θ ∈ Θn and any two agents i, j ∈ N with θi ≥ θj. Consider any order σ such that k = σj = σi + 1 for any given k ∈ {1, . . . , n − 1}. Given our objective is to minimize ∑ j∈N w ∗ jθj S j(σ), the sum of weighted completion costs of i and j for σ is (11) Ci j(σ) := w ∗ i θi Si(σ) + w ∗ jθj S j(σ) = θi ( si + ∑k∈Pi(σ) sk ∏r 6=i sr ) +θj ( si + s j + ∑k∈Pi(σ) sk ∏r 6= j sr ) . Consider the order σ′ obtained from σ by interchanging the positions of i and j only, that is σ′j = σi , σ ′ i = σj and σ ′ k = σk for all k ∈ N \ {i, j}. The sum of weighted completion costs of i and j for σ′ is (12) Ci j(σ ′) := w∗i θi Si(σ ′) + w∗jθj S j(σ ′) = θi ( si + s j ∑k∈Pi(σ) sk ∏r 6=i sr ) +θj ( s j + ∑k∈Pi(σ) sk ∏r 6= j sr ) . By taking the difference Ci j(σ ′) − Ci j(σ) and using conditions (11) and (12) and making some obvious simplifications we get (13) Ci j(σ ′) − Ci j(σ) = (θi −θj) ( 1 ∏r∈N\{i, j} sr ) ≥ 0. In condition (13), the inequality is strict if θi > θj. Condition (13) shows that if θi ≥ θj, then for any two consecutive positions in an order it is not more costly to serve agents i before agent j and if θi > θj, then it is less costly to serve agent i before agent j. Notice that for this conclusion we neither required the profile of waiting costs of the agents N \ {i, j} nor did we require the positions of the agent N \ {i, j} in the order. Hence, if for any profile θ ∈ Θn, our objective is to select σw ∗,0(θ) ∈ arg minσ∈Σ(N) { ∑ j∈N w ∗ jθj S j(σ) } , then σw ∗,0(θ) must follow the following property: (Aff) For any i, j ∈ N such that θi ≥ θj, σ w∗,0 i (θ) ≤ σ w∗,0 j (θ). Moreover, since N \ {i, j} did not matter in condition (13), the converse is also true, that is, given any profile θ, condition (Aff) gives σw ∗,0(θ) ∈ arg minσ∈Σ(N) { ∑ j∈N w ∗ jθj S j(σ) } . Given the tie breaking rule, the order obtained by following condition (Aff) is the same as the order obtained from the just sequencing rule σ̃. Hence the result follows. � Remark 2. In general, for any affine cost minimizer sequencing rule σw,κ̄ with the prop- erty that κ(σ) = κ̄ for all σ ∈ Σ(N), urgency index can be replaced by weighted INCENTIVES AND JUSTICE 13 urgency index uwi = (wiθi)/si to determine the profile contingent order of serving the agents. Specifically, like Smith’s [32] rule for outcome efficiency, for these affine cost minimizers σw,κ̄, σw,κ̄(θ) affine cost minimizes {κ̄ + ∑ j∈N w jθj S j(σ)} if and only if the selected order σw,κ̄(θ) satisfies condition (ACM): For any i, j ∈ N, (wiθi)/si ≥ (w jθj)/s j ⇔ σ w,κ̄ i (θ) ≤ σw,κ̄ j (θ).11 More importantly, the affine cost minimizer se- quencing rule σw ∗,0 that gives the just sequencing rule σ̃ has w∗j = (1/ ∏k∈N\{ j} sk) as the agent specific weights and hence weighted urgency index is uw ∗ i = (θi/ ∏k∈N sk). Therefore, for any θ ∈ Θn and any i, j ∈ N, uw ∗ i ≥ u w∗ j if and only if θi ≥ θj. That is, for the affine cost minimizer sequencing rule σw ∗,0 that gives σ̃, comparison of weighted urgency index across agents reduces to the comparison of the waiting costs across agents. 4.2. Budget balanced implementability of the just sequencing rule. For implemen- tation of outcome efficient allocation rules, Zhou [37] provided examples of both public and private good allocation problems for which no budget balancing VCG mechanisms exists and for which all VCG mechanisms are inferior to other ‘reasonable’ non-VCG mechanisms. Zhou [37] concluded that unless one can find a budget balancing VCG mechanism, one should limit its use. Implementation of outcome efficient rules with balanced transfers is difficult to get in many economic environments (see, for example, Hurwicz and Walker [17] and Walker [36]). That implementation of outcome efficiency is possible with balanced transfers for sequencing and queueing problems was estab- lished by Mitra [24], [25] and Suijs [33]. Mitra and Sen [26] characterized domains in a heterogenous objects model with private values where an outcome efficient rule can be implemented in dominant strategies with balanced transfers. They show that these domains are non-trivial and are ‘closely’ related to incentive problems in sequencing and queueing problems studied in Mitra [24], [25] and Suijs [33]. We prove that for sequencing problems, if we replace outcome efficient sequencing rule with the just se- quencing rule, we get implementability with balanced transfers provided there are at least three agents. Definition 8. A sequencing rule σ is implementable with balanced transfers if the mech- anism (σ, τ) that implements it has a budget balanced transfer, that is, for all θ ∈ Θn, ∑ j∈N τj(θ) = 0. Proposition 2. For any sequencing problem Ω (s1 ,s2) N={1,2} with two agents, implementa- tion of the just sequencing rule σ̃ with balanced transfers is not possible. 11Given the tie-breaking rule, this profile contingent selection σw,κ(θ) is unique. 14 PARIKSHIT DE AND MANIPUSHPAK MITRA Proof: Fix any processing time vector (s1, s2) and consider the sequencing problem Ω s N={1,2} . To implement the refined sequencing rule it is necessary that the mechanism (σ, τ) is an rVCG mechanism (Theorem 2). Pick any rVCG mechanism. Consider the waiting costs θ1, θ ′ 1, θ2, θ ′ 2 such that θ1 > θ ′ 2 > θ ′ 1 > θ2 and θ ′ 1s1 6= θ ′ 2s2. Budget balance for the profile (θ1, θ2) gives (B1) h1(θ2) + h2(θ1) − θ2s2 = 0. Budget balance for (θ1, θ ′ 2) gives (B2) h1(θ ′ 2) + h2(θ1) −θ ′ 2s2 = 0. Budget balance for (θ ′ 1, θ2) gives (B3) h1(θ2) + h2(θ ′ 1) − θ2s2 = 0. Finally, budget balance for the profile (θ ′ 1, θ ′ 2) gives (B4) h1(θ ′ 2) + h2(θ ′ 1) −θ ′ 1s1 = 0. By adding (B1) and (B4) and subtracting both (B2) and (B3) from it we get θ′2s2 −θ ′ 1s1 = 0 which contradicts the restriction that θ ′ 1s1 6= θ ′ 2s2. � Definition 9. Consider any ΩsN with at least three agents. A mechanism (σ̃, τ̃ ∗) is a balanced rVCG mechanism if the transfer rule is such that for all θ ∈ Θn and all i ∈ N, (14) τ̃ ∗ i (θ) =                ∑ j∈N\{i} ( σ̃j(θ)−1 n−2 ) θjs j + gi(θ−i) if P ′ i (σ̃(θ)) = ∅, − ∑ j∈N\{i} ( n−σ̃j(θ) n−2 ) θjs j + gi(θ−i) if Pi(σ̃(θ)) = ∅, ∑ j∈Pi(σ̃(θ)) ( σ̃j(θ)−1 n−2 ) θjs j − ∑ j∈P′ i (σ̃(θ)) ( n−σ̃j(θ) n−2 ) θjs j + gi(θ−i) otherwise. where gi : Θ |N\{i}| → R for each i ∈ N is such that for any θ ∈ Θn, ∑i∈N gi(θ−i) = 0. The balanced rVCG transfer requires that for any profile θ ∈ Θn and given any agent specific constant transfer gi(θ−i) to agent i, each agent i, in addition, receives as reward a position specific weighted sum of the minimum cost of all agents served before him (∑ j∈Pi(σ̃(θ))[(σ̃j(θ) − 1)/(n − 2)]θjs j) under the refined Ralwsian sequencing order σ̃(θ) (provided Pi(σ̃(θ)) 6= ∅) and agent i also pays a position specific weighted sum of the minimum cost of all agents served after him (∑ j∈P′ i (σ̃(θ))[(n −σ̃j(θ))/(n − 2)]θjs j) under the refined Ralwsian sequencing order σ̃(θ) (provided P′i (σ̃(θ)) 6= ∅). In addition, the balanced rVCG mechanism also requires that selection of the function gi : Θ |N\{i}| → R for each agent i ∈ N must be such that for any θ ∈ Θn, ∑ j∈N g j(θ− j) = 0. Theorem 3. Let ΩsN be a sequencing problem with at least three agents. The just se- quencing rule is implementable with balanced transfers if and only if the mechanism (σ̃, τ) that implements it is a balanced rVCG mechanism. Proof: We know that the just sequencing rule is implementable if and only if the mech- anism is an rVCG mechanism (Theorem 2). Therefore, identifying the complete class of INCENTIVES AND JUSTICE 15 mechanisms that implements the just sequencing rule with balanced transfers reduces to identifying the complete class of balanced rVCG mechanisms. Suppose there is the refined Ralwsian order σ̃(θ) for the profile θ ∈ Θn and agent i leaves. We define the “induced” order σ̃(θ−i) (of length |N \ {i}|) for the agents in N \ {i} as follows: (15) σ̃j(θ−i) = { σ̃j(θ) − 1 if j ∈ P ′ i (σ̃(θ)), σ̃j(θ) if j ∈ Pi(σ̃(θ)). In words, σ̃(θ−i) is the order formed by removing agent i and moving all agents behind him up by one position. Given the same tie-breaking rule for the economy with N \ {i} agents, it is easy to see that σ̃(θ−i) is also just in N \ {i} for the profile θ−i if σ̃(θ) is just for the profile θ. Given that the sequencing problem ΩsN has at least three agents, without loss of generality, we redefine the rVCG mechanisms by setting for each agent i ∈ N and each profile θ−i, (16) hi(θ−i) = ∑ j∈N\{i} ( σ̃j(θ−i) − 1 n − 2 ) θjs j + gi(θ−i), where gi : Θ |N\{i}| → R is arbitrary. By substituting (16) in the rVCG transfer (7) we get the following for any i ∈ N and any θ ∈ Θn. (A) If P′i (σ̃(θ)) = ∅, then σ̃j(θ−i) = σ̃j(θ) for all j ∈ N \ {i} and from (7) we get τ̃i(θ) = hi(θ−i) = ∑ j∈N\{i} ( σ̃j(θ)−1 n−2 ) θjs j + gi(θ−i). (B) If Pi(σ̃(θ)) = ∅, then σ̃j(θ−i) = σ̃j(θ) − 1 for all j ∈ N \ {i} and from (7) we get τ̃i(θ) = − ∑ j∈N\{i} θjs j + hi(θ−i) = − ∑ j∈N\{i} θjs j + ∑ j∈N\{i} ( σ̃j(θ)−2 n−2 ) θjs j + gi(θ−i) = − ∑ j∈N\{i} ( n−σ̃j(θ) n−2 ) θjs j + gi(θ−i). (C) If P′i (σ̃(θ)) 6= ∅ and Pi(σ̃(θ)) 6= ∅, then σ̃j(θ−i) = σ̃j(θ) for all j ∈ Pi(σ̃(θ)) 6= ∅, σ̃j(θ−i) = σ̃j(θ) − 1 for all j ∈ P ′ i (σ̃(θ)) 6= ∅ and from (7) we get τ̃i(θ) = − ∑ j∈P′ i (σ̃(θ)) θjs j + hi(θ−i) = − ∑ j∈P′ i (σ̃(θ)) θjs j + ∑ j∈Pi(σ̃(θ)) ( σ̃j(θ)−1 n−2 ) θjs j + ∑ j∈P′ i (σ̃(θ)) ( σ̃j(θ)−2 n−2 ) θjs j + gi(θ−i) = ∑ j∈Pi(σ̃(θ)) ( σ̃j(θ)−1 n−2 ) θjs j − ∑ j∈P′ i (σ̃(θ)) ( n−σ̃j(θ) n−2 ) θjs j + gi(θ−i). Conditions (A)-(C) show that when the sequencing problem ΩsN has at least three agents, then an equivalent representation of the rVCG transfers is that for any i ∈ N and any θ ∈ Θn, 16 PARIKSHIT DE AND MANIPUSHPAK MITRA (17) τ̃ ′ i (θ) =                ∑ j∈N\{i} ( σ̃j(θ)−1 n−2 ) θjs j + gi(θ−i) if P ′ i (σ̃(θ)) = ∅, − ∑ j∈N\{i} ( n−σ̃j(θ) n−2 ) θjs j + gi(θ−i) if Pi(σ̃(θ)) = ∅, ∑ j∈Pi(σ̃(θ)) ( σ̃j(θ)−1 n−2 ) θjs j − ∑ j∈P′ i (σ̃(θ)) ( n−σ̃j(θ) n−2 ) θjs j + gi(θ−i) otherwise, where for each i ∈ N, the function gi : Θ |N\{i}| → R is arbitrary. By taking the repre- sentation (17) of the rVCG transfer we get for any θ ∈ Θn, ∑ k∈N τ̃′ k (θ) = ∑ k∈N { ∑ j∈Pk(σ̃(θ)) ( σ̃j(θ)−1 n−2 ) θjs j − ∑ j∈P′ k (σ̃(θ)) ( n−σ̃j(θ) n−2 ) θjs j } + ∑ k∈N gk(θ−k) = ∑ k∈N ∑ j∈Pk(σ̃(θ)) ( σ̃j(θ)−1 n−2 ) θjs j − ∑ k∈N ∑ j∈P′ k (σ̃(θ)) ( n−σ̃j(θ) n−2 ) θjs j + ∑ k∈N gk(θ−k) = ∑ j∈N { |P′j(σ̃j(θ))| ( σ̃j(θ)−1 n−2 )} θjs j − ∑ j∈N { |Pj(σ̃j(θ))| ( n−σ̃j(θ) n−2 )} θjs j + ∑ k∈N gk(θ−k) = ∑ j∈N { (n −σ̃j(θ)) ( σ̃j(θ)−1 n−2 )} θjs j − ∑ j∈N { (σ̃j(θ) − 1) ( n−σ̃j(θ) n−2 )} θjs j + ∑ k∈N gk(θ−k) = ∑ k∈N gk(θ−k). Therefore, by taking the representation (17) of the rVCG transfer we have proved that for any θ ∈ Θn, ∑ k∈N τ̃′ k (θ) = ∑ k∈N gk(θ−k). Therefore, an rVCG mechanism repre- sented by (17) is budget balanced if and only if (I) for all θ ∈ Θn, ∑ k∈N gk(θ−k) = 0. From the representation (17) of the rVCG transfers and from condition (I), the result follows. � Remark 3. There are papers that show that for the family of sequencing problems ΩsN with three or more agents we can find budget balanced VCG mechanisms and hence implementation with balanced transfer is also possible with the outcome efficient se- quencing rule (see Mitra [25] and Suijs [33]). From Remark 1 it follows that for the queueing problem Ωs ∗ N , the set of all balanced rVCG mechanism coincides with the set of all VCG mechanisms that first best implements the outcome efficient sequencing rule. 4.3. Two-dimensional incentives and the just sequencing rule. If we assume that both waiting cost and the processing time are agent specific private information, then we have the mechanism design problem for the general sequencing problem ΩN = INCENTIVES AND JUSTICE 17 (Θn, S). Specifically, we have an interdependent value situation and therefore the cor- rect notion is ex-post implementability. The type of any agent i ∈ N is mi = (θi , si) ∈ Θ × R++ that constitutes of his waiting cost as well as his processing time. A pro- file is m = (m1, . . . , mn) ∈ Θ n × S. For any i ∈ N, let m−i, denote the profile (m1, . . . , mi−1, mi+1, . . . , mn) ∈ Θ |N\{i}| × R |N\{i}| ++ which is obtained from the profile m by eliminating i’s type. For the general sequencing problem ΩN , a (direct reve- lation) mechanism is (σ g, τ) that constitutes of a general sequencing rule σ g and a transfer rule τ. A general sequencing rule is a function σ g : Θn × S → Σ(N) that spec- ifies for each profile m ∈ Θn × S, a unique order σ g(m) = (σ g 1 (m), . . . , σ g n (m)) ∈ Σ(N). A transfer rule is a function τ : Θn × S → Rn that specifies for each profile m ∈ Θn × S a transfer vector τ(m) = (τ1(m), . . . , τn(m)) ∈ R n. Specifically, for ΩN and given any mechanism (σ g, τ), if m′i is the announced type of agent i when his true type is mi and m−i is the true profile for agents N \ {i}, then the utility of i is given by vi(σ g(m′i , m−i), τi(m ′ i , m−i); mi ; s−i(m−i)) = −θi ( si + ∑ j∈Pi(σ g(m′i ,m−i)) s j ) + τi(m ′ i , m−i). Definition 10. A mechanism (σ g, τ) ex-post implements the general sequencing rule σ g if the transfer rule τ : Θn × S → Rn is such that for any i ∈ N, any mi , m ′ i and any true profile m−i, (18) vi(σ g(m), τi(m); mi ; s−i(m−i)) ≥ vi(σ g(m′i , m−i), τi(m ′ i , m−i); mi ; s−i(m−i)). Ex-post implementability requires truth-telling is a Nash equilibrium for any agent and for every true type profile m. Definition 11. A mechanism (σ g, τ) ex-post implements with balanced transfers the gen- eral sequencing rule σ g if the transfer rule τ : Θn × S → Rn satisfies ex-post imple- mentability condition (18) and is also budget balanced, that is for all m ∈ Θn × S → Rn, ∑ j∈N t j(m) = 0. Definition 12. A general sequencing rule σ̃ g is just if for each profile m ∈ Θn × S, the chosen order σ̃ g(m) satisfies the following property: for any i, j ∈ N such that θi ≥ θj, σ̃ g i (m) ≤ σ̃ g j (m).12 For any true m = (m1 = (θ1, s1), . . . , mn = (θn, sn)) we say θ is obtained from m if it is a collection of the first element from m j = (θj, s j) for each j ∈ N and we say s is obtained from m if it is a collection of the second element from m j = (θj, s j) for each j ∈ N. Similarly, for any i ∈ N and any true m−i = (m1 = (θ1, s1), . . . , mi−1 = 12The tie-breaking rule guarantees state contingent uniqueness of σ̃ g. 18 PARIKSHIT DE AND MANIPUSHPAK MITRA (θi−1, si−1), mi+1 = (θi+1, si+1), . . . , mn = (θn, sn)) we say θ−i is obtained from m−i if it is a collection of the first element from m j = (θj, s j) for each j ∈ N \ {i} and we say s−i is obtained from m−i if it is a collection of the second element from m j = (θj, s j) for each j ∈ N \ {i}. For ΩN , the just general sequencing rule satisfies the following: For any m = (m1, . . . , mn) ∈ Θ n × S, σ̃ g(m) = σ̃(θ) where θ is obtained from m. Definition 13. For σ̃ g, a mechanism (σ̃ g, τ̃) is a generalized rVCG mechanism if the trans- fer rule is such that for all m ∈ Θn × S and all i ∈ N, (19) τ̃ g i (θi , m−i) =    h g i (m−i) if P ′ i (σ̃(θi , θ−i)) = ∅, h g i (m−i) − ∑ j∈P′ i (σ̃(θi ,θ−i)) θjs j otherwise. where θ−i is obtained from m−i and h g i : Θ|N\{i}| × R |N\{i}| ++ → R is arbitrary. Proposition 3. The just general sequencing rule σ̃ g is ex-post implementable if and only if the mechanism (σ̃ g, τ) that implements it is a generalized rVCG mechanism. Proof: We only prove that if the just general sequencing rule σ̃ g is ex-post imple- mentable via a mechanism (σ̃ g, τ), then the mechanism is a generalized rVCG mecha- nism. The other part is easy and hence omitted. Consider any i ∈ N and fix any true type m−i for all agents other than i. For any true type mi = (θi , si) of i and any misreport m ′ i = (θ ′ i , s ′ i) by i, ex-post implementabil- ity of the just general sequencing rule σ̃ g requires vi(σ̃ g(m), τi(m); mi ; s−i(m−i)) ≥ vi(σ̃ g(m′i , m−i), τi(m ′ i , m−i); mi ; s−i(m−i)) which is the same as requiring (20) vi(σ̃(θi , θ−i), τi(mi , m−i); mi ; s−i(m−i)) ≥ vi(σ̃(θ ′ i , θ−i), τi(m ′ i , m−i); mi , s−i(m−i)). Moreover, given the true type m−i of all agents and given any pair of types (m ′ i = (θ′i , s ′ i), m ′′ i = (θ ′ i , s ′′ i )) for i with the property the waiting cost is identical in m ′ i and m ′′ i , σ̃ g(m′i , m−i) = σ̃(θ ′ i , θi) = σ̃ g(m′′i , m−i) since just sequencing rule ignores the process- ing time. Hence, using ex-post implementability, we get the following inequalities: (1) −θ′i(s ′ i + ∑ j∈Pi(σ̃(θ ′ i ,θ−i)) s j) + τi(m ′ i , m−i) ≥ −θ ′ i(s ′ i + ∑ j∈Pi(σ̃(θ ′ i ,θ−i)) s j) + τi(m ′′ i , m−i). (2) −θ′i(s ′′ i + ∑ j∈Pi(σ̃(θ ′ i ,θ−i)) s j) +τi(m ′ i , m−i) ≤ −θ ′ i(s ′′ i + ∑ j∈Pi(σ̃(θ ′ i ,θ−i)) s j) +τi(m ′′ i , m−i). Inequality (1) gives τi(m ′ i , m−i) ≥ τi(m ′′ i , m−i) and inequality (2) gives τi(m ′ i , m−i) ≤ τi(m ′′ i , m−i) and therefore, τi(m ′ i , m−i) = τi(m ′′ i , m−i). Hence we have (21) τi(m ′ i , m−i) = τi(m ′′ i , m−i) := τi(θ ′ i , m−i). INCENTIVES AND JUSTICE 19 Using (21) in (20) we get (22) vi(σ̃(θi , θ−i), τi(θi , m−i); mi ; s−i(m−i)) ≥ vi(σ̃(θ ′ i , θ−i), τi(θ ′ i , m−i); mi , s−i(m−i)). As long as the true type m−i of agents N \ {i} is known, the processing time of these agents s−i obtained from m−i is known and θ−i obtained from m−i is also known and hence the waiting cost cut-off vector (θµ(1), . . . , θµ(R)) for agent i with the just sequenc- ing rule σ̃ is also known and the calculation of the transfer for agent i is independent of the processing time of agent i. Therefore, from inequality (22) we get that for any given si > 0, the following inequality must be true. (23) Ui(σ̃(θi , θ−i), τi(θi , m−i); θi) ≥ Ui(σ̃(θ ′ i , θ−i), τi(θ ′ i , m−i); θi). Note that if inequality (23) holds for some given si > 0 and for all θi ∈ Θ, then for any other s′i > 0 with the same transfer, inequality (23) holds for any θi ∈ Θ since si (either actual or misreported) does not enter the calculation of the transfer τi(θi , m−i). The true processing time si only enters in the calculation of the completion time Si(σ̃). Inequality (23) is similar to the implementability inequality (1) with τi(θi , θ−i) of inequality (1) replaced by τi(θi , m−i) in (23) where θ−i is the waiting cost vector ob- tained from m−i. Moreover, the waiting cost cut-off vector (θµ(1), . . . , θµ(R)) for the just sequencing rule is same for both m−i and θ−i when θ−i is obtained from m−i. Hence for any true m−i, true θ−i obtained from m−i and any θi , θ ′ i ∈ Θ, we must have (B) τi(θi , θ−i) − τi(θ ′ i , θ−i) = τi(θi , m−i) − τi(θ ′ i , m−i). From (B) it follows that for any θi ∈ Θ, any true m−i and θ−i obtained from m−i, (C) τi(θi , m−i) −τi(θi , θ−i) := gi(m−i). Recall that implementability of the just sequencing rule σ̃ requires that the transfer must be an rVCG transfer, that is for any θ−i, and any θi ∈ Θ, the transfer τi(θi , θ−i) in (C) must be equal to the rVCG transfer τ̃i(θi , θ−i) given by (7). Hence from (C) we get (24) τi(θi , m−i) =    hi(θ−i) + gi(m−i) if P ′ i (σ̃(θi , θ−i)) = ∅, hi(θ−i) + gi(m−i) − ∑ j∈P′ i (σ̃(θi ,θ−i)) θjs j otherwise. where the functions hi : Θ |N\{i}| → R and gi : Θ |N\{i}| × R |N\{i}| ++ → R are arbi- trary. Without loss of generality, by setting hi(θ−i) + gi(m−i) = h g i (m−i) in (24) we get τi(θi , m−i) := τ̃ g i (θi , m−i) and the result follows. � That ex-post implementable with balanced transfers is not possible for ΩN={1,2} with two agents is a natural extension of the arguments in Proposition 2. By applying ar- guments similar to that in Theorem 3, it is easy to see that the just general sequencing rule σ̃ g is ex-post implementable with balanced transfers. 20 PARIKSHIT DE AND MANIPUSHPAK MITRA Definition 14. Consider the general sequencing problem ΩN with at least three agents. For σ̃ g, a mechanism (σ̃ g, τ̃ g∗) is a balanced generalized rVCG mechanism if the transfer rule is such that for all m ∈ Θn × S and all i ∈ N, (25) τ̃ g∗ i (θi , m−i) =              ∑ j∈N\{i} A j(θi)θjs j + g g i (m−i) if P ′ i = ∅, − ∑ j∈N\{i} B j(θi)θjs j + g g i (m−i) if Pi = ∅, ∑ j∈Pi(σ̃(θi ,θ−i)) A j(θi)θjs j − ∑ j∈P′ i (σ̃(θi ,θ−i)) B j(θi)θjs j + g g i (m−i) otherwise. where θ−i is obtained from m−i, A j(θi) := (σ̃j(θi , θ−i) − 1)/(n − 2), B j(θi) := (n − σ̃j(θi , θ−i))/(n − 2) and for any i ∈ N, g g i : Θ|N\{i}| × R |N\{i}| ++ → R is such that for any m ∈ Θn × S, ∑i∈N g g i (m−i) = 0. Proposition 4. Let ΩN be the general sequencing problem with at least three agents. The just general sequencing rule σ̃ g is ex-post implementable with balanced transfers if and only if the mechanism (σ̃ g, τ) that implements it is a balanced generalized rVCG mechanism. 5. CONCLUSIONS We have argued that the nice properties of the just sequencing rule from a mecha- nism design perspective are the following. (1) It is a Rawlsian sequencing rule which is implementable in dominant strategies. (2) It is an affine cost minimizer. (3) Its implementation is costless, that is, it is implementable with balanced trans- fers. (4) Unlike outcome efficiency, even when both waiting cost and processing time are private information it is ex-post implementable with balanced transfers. The cost of selecting the just sequencing rule is the efficiency loss, that is, the profile contingent difference in aggregate completion cost between the just sequencing rule and the outcome efficient sequencing rule. When the processing time of the agents are non-identical, this loss is positive for profiles where the order under the just sequencing rule is different from that of the outcome efficient sequencing rule. REFERENCES [1] Bergemann, D. and Morris, S. (2008). Ex-post implementation. Games and Economic Behavior 63, 527-566. INCENTIVES AND JUSTICE 21 [2] Bikhchandani, S. (2006). Ex-post implementation in environments with private goods. Theoretical Economics 1 , 369-393. [3] Chichilnisky, G. and Heal, G. M. (1997). The geometry of implementation: a necessary and sufficient condition for straightforward games. Social cHoice and Welfare 14, 259-294. [4] Chun, Y. (2006). No-envy in queueing problems. Economic Theory 29, 151-162. [5] Chun, Y., Mitra, M. and Mutuswami, S. (2014). Egalitarian equivalence and strategyproofness in the queueing problem. Economic Theory 56, 425-442. [6] Chun, Y., Mitra, M. and Mutuswami, S. (2015). A characterization of the symmetrically bal- anced VCG rule in the queueing problem. Article in press: Games and Economic Behavior, doi:10.1016/j.geb.2015.04.001. [7] Chung, K.-S. and Ely, J. C. (2003). Ex-post incentive compatible mechanism design. Working Paper, Department of Economics, Northwestern University. [8] Clarke, E. H., (1971). Multi-part pricing of public goods. Public Choice 11, 17-33. [9] Deb, R. and Mishra, D. (2014). Implementation with contingent contracts. Econometrica 82, 2371- 2393. [10] Dolan, R. J. (1978). Incentive mechanisms for priority queuing problems. The Bell Journal of Eco- nomics 9, 421-436. [11] Duives, J., Heydenreich, B., Mishra, D., Muller, R. and Uetz, M. (2012). On Optimal Mechanism Design for a Sequencing Problem. mimeo. [12] Groves, T. (1973). Incentives in teams. Econometrica 41, 617-631. [13] Hain, R. and Mitra, M. (2004). Simple sequencing problems with interdependent costs. Games and Economic Behavior 48, 271-291. [14] Hashimoto, K., and Saitoh, H. (2012). Strategy-proof and anonymous rule in queueing problems: a relationship between equity and efficiency. Social Choice and Welfare 38, 473-480. [15] Holmström, B., (1979). Groves’ schemes on restricted domains. Econometrica 47, 1137-1144. [16] Hurwicz, L., (1975). On the existence of allocative systems whose manipulative Nash equilibria are Pareto optimal. Mimeo, University of Minnesota. [17] Hurwicz, L. and Walker, M. (1990). On the generic non-optimality of dominant strategy allocation mechanisms: A general theorem that includes pure exchange economies. Econometrica 58, 683-704. [18] Jehiel, P., Meyer-ter-Vehn, M., Moldovanu, B. and Zame, W. R. (2006). The limits of ex-post imple- mentation. Econometrica 74, 585-610. [19] Jehiel, P. and Moldovanu, B. (2001). Efficient design with interdependent valuations. Econometrica, 69, 1237-1259. [20] Kayi, C. and Ramaekers, E. (2010). Characterizations of Pareto-efficient, fair, and strategy-proof allocation rules in queueing problems. Games and Economic Behavior 68, 220-232. [21] Fieseler, K. Kittsteiner, T. and Moldovanu, M. (2003). Partnerships, lemons and efficient trade. Jour- nal of Economic Theory 113, 223-234. [22] Lavi, R., Mu’alem, A. and Nisan, N. (2004). Towards a Characterization of Truthful Combinatorial Auctions. Working paper-School of Engineering and Computer Science, The Hebrew University of Jerusalem, Israel. [23] Maniquet, F. (2003). A characterization of the Shapley value in queueing problems. Journal of Eco- nomic Theory, 109(1), 90-103. 22 PARIKSHIT DE AND MANIPUSHPAK MITRA [24] Mitra, M., (2001). Mechanism design in queueing problems. Economic Theory 17, 277-305. [25] Mitra, M., (2002). Achieving the first best in sequencing problems. Review of Economic Design 7, 75-91. [26] Mitra, M. and Sen, A. (2010). Efficient allocation of heterogenous commodities with balanced trans- fers. Social Choice Welfare 35, 29-48. [27] Moulin, H., (2007). On Scheduling Fees to Prevent Merging, Splitting, and Transferring of Jobs. Mathematics of Operations Research 32, 266-283. [28] Mukherjee, C. (2013). Weak group strategy-proof and queue-efficient mechanisms for the queueing problem with multiple machines. International Journal of Game Theory, 42(1), 131-163. [29] Mitra, M., & Mutuswami, S. (2011). Group strategyproofness in queueing models. Games and Eco- nomic Behavior, 72(1), 242-254. [30] Rawls, J. (1972). A theory of Justice. Harvard University Press. [31] Roberts, K. (1979). The characterization of implementable choice rules. In Jean-Jacques Laffont, editor, Aggregation and Revelation of Preferences. Papers presented at the first European Summer Workshop of the Econometric Society, pages 321-349, North-Holland Publications. [32] Smith, W. (1956). Various optimizers for single stage production. Naval Research Logistics Quar- terly 3, 59-66. [33] Suijs, J. (1996). On incentive compatibility and budget balancedness in public decision making. Economic Design 2, 193-209. [34] Velez, R. A. (2011). Are incentives against economic justice? Journal of Economic Theory 146, 326- 345. [35] Vickrey, W. (1961). Counterspeculation, auctions and competitive sealed tenders. Journal of Finance 16, 8-37. [36] Walker, M. (1980). On the non-existence of dominant strategy mechanisms for making optimal public decisions. Econometrica 48, 1521-1540. [37] Zhou, L. (2007). The failure of Groves mechanisms in canonical allocation models. Mimeo, Arizona State University. ECONOMIC RESEARCH UNIT, INDIAN STATISTICAL INSTITUTE, KOLKATA, INDIA. E-mail address: parikshit r@isical.ac.in ECONOMICS RESEARCH UNIT-INDIAN STATISTICAL INSTITUTE, KOLKATA-700108, INDIA. E-mail address: mmitra@isical.ac.in 
work_icpel7dxn5ha3b6lry3m4d4s2a	----	Microsoft Word - LAW 2011_02.doc DEPARTMENT OF LAW EUI Working Papers LAW 2011/02 DEPARTMENT OF LAW SOCIAL JUSTICE AND ACCESS JUSTICE IN PRIVATE LAW Hans-W. Micklitz EUROPEAN UNIVERSITY INSTITUTE, FLORENCE DEPARTMENT OF LAW Social Justice and Access Justice in Private Law HANS-W. MICKLITZ EUI Working Paper LAW 2011/02 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © 2011 Hans-W. Micklitz Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Author contact details Hans-W. Micklitz 1 Professor of Economic Law European University Institute Florence, Italy Email: Hans.Micklitz@eui.eu 1 I would like the thank R. Sefton-Green, H. Muir Watt, N. Reich, T. Roethe, C. Torp, G. Miller, K. Purnhagen for extremely helpful comments and B. Schüller not only for his support in my research, but also for interesting discussions over a couple of months. The responsibility for all errors and misconceptions, however, remains mine. Table of Contents 1. How the Argument Goes ................................................................................................................ 1 2. The Socio-Economic and Political Background of Social Justice (in Private Law) in France, Germany and England .................................................................................................................... 3 2.1. The English Model – A Liberal and Pragmatic Design Fit for Commercial Use ................... 4 2.1.1. English Pragmatism and Two Explanatory Hypotheses ............................................... 4 2.1.2. The Gradual Intrusion of Social Justice into Labour and Consumer Law .................... 7 2.2. The French Model – A Forward Looking Political Design of a (Just) Society....................... 8 2.2.1. The Political Conception – A Tentative Explanation.................................................... 9 2.2.2. Politicising Private Law as Social Law ......................................................................... 9 3.3. The German Model – An Authoritarian Paternalistic-Ideological though Market Orientated Design ................................................................................................................................... 11 3.3.1. Ideological Paternalism and Market Pragmatism........................................................ 11 3.3.2. Authoritarian Liberalism and the Rise of Labour Law and Consumer Law ............... 12 4. The European Integration Process and the European Model of Justice........................................ 13 4.1. The Evolving Character of the European Legal Order and the Rise of ‘The Social’............ 14 4.2. The Impact of the European Integration Process on Labour and Anti-Discrimination Law. 15 4.2.1. Labour Law and Anti-Discrimination Law ................................................................. 15 4.2.2. Consumer Law ............................................................................................................ 19 5. The European Model on Access Justice ....................................................................................... 21 5.1. Social Distribute, Access Justice and Allocative Libertarian Justice.................................... 21 5.2. The Two Constitute Elements: Access Rights and Anti-Discrimination Rights................... 23 5.2.1. Specific Access Rights in Labour, Anti-Discrimination and Consumer Law ............. 24 5.2.2. The Horizontal Dimension of Anti-Discrimination .................................................... 26 Bibliography.......................................................................................................................................... 28 Abstract During the C20th, the Member States of the European Union developed their own models of social justice in private law. Each model is inherently linked to national culture and tradition. However, all models have a common thread, which is the use of the law by the (social welfare) state as a means to protect the weaker party against the stronger party. Since the adoption of the Single European Act in 1986, the European Union has assumed a social outlook which has gradually developed over time eventually taking shape in the Lisbon Treaty and the Charter of Fundamental Rights. Since the adoption of the SEA, more particularly the White Paper on the Completion of the Internal Market,[1] the European Union adopted a huge set of secondary law means which influence either directly (consumer, labour, anti-discrimination and business law directives) or indirectly (directives meant to liberalise markets, e.g. telecommunication, postal services, energy – electricity and gas, transport, health care) private law matters. This new regulatory private law is governed by a different philosophy, one which cannot be brought into line with the understanding of social justice as enshrined in labour or later the consumer movement and one which is challenging national models of social justice in private law. I call the EU model of justice access justice/Zugangsgerechtigkeit (justice through access, not access to justice), i.e. that it is for the European Union to grant access justice to those who are excluded from the market or to those who face difficulties in making use of the market freedoms. European private law rules have to make sure that the weaker parties have and maintain access to the market – and to the European society insofar as this exists. Keywords Social justice, welfare state, private law, European integration, internal market, Zugangsgerechtigkeit, access justice [1] Completing the Internal Market. White Paper from the Commission to the European Council (Milan, 28-29 June 1985), COM (85) 310 final, 14.6.1985. 1 1. How the Argument Goes During the C20th, the Member States of the European Union developed their own models of social justice in private law. Each model is inherently linked to national culture and tradition. However, all models use the law by the (social welfare) state as a means to protect the weaker party against the stronger party, the employee against the employer, the tenant against the landlord and the consumer against the supplier. Therefore, social justice is bound to the idea of the redistribution of wealth from the richer to the poorer part of the society, individually and collectively. That is where the idea of the social welfare state is located. 2 The integration of social justice into private law and the rise of the welfare state were made possible by way of the grand transformation process that shook Europe between the 17th -19th century and that freed private law from feudal and corporative (ständische) barriers. 3 This transformation process is very much bound to the specificities of any given particular country, its economic and social conditions and also timing. Social justice itself is a product of the late 19th/early 20th century, a result of the socialist labour movement. Member States responded to this new challenge in various ways, mostly by transforming their private law systems through the ‘protective’ welfare state in the late 19th early 20th century. The second wave of social justice began after the Second World War with the rise of the consumer society. Again Member States’ private law systems were confronted with the call for social justice. This time the response came from the ‘regulatory’ welfare state. Social justice in private law cannot be understood in isolation from its origins, first in labour, then in consumer law. Labour law became a subject of its own and emigrated from the private law system into a separate area of law. Its ideological flavour along with its conceptual ideas did not abstain from touching the growing consumer law field. For a complete understanding of the different patterns of social justice in national private law therefore we must look at both labour and consumer law. The European Economic Community as construed in the 1950s was built on a clear separation of responsibilities between the EEC that was to establish the Common Market and the Member States that were to engage in social matters. However, the construction of the EEC changed considerably over time. Since the adoption of the Single European Act in 1986, the European Union has assumed a social outlook which has gradually developed over time eventually taking shape in the Lisbon Treaty and the Charter of Fundamental Rights. There is even an ongoing discussion on an existing or emerging European Social Model. 4 What matters in our context are the particularities under which social issues found its way in the European Union. Member States had developed their national labour laws long before the European Union turned into a political, economic and social actor. Therefore right from the beginning, European interest in gaining competence in social matters clashed with the settled interests in the Member States that tended to defend the already achieved status quo. The timid transfer of powers from the Member States to the European Union over the last 25 years is largely due to these tensions. Where the European Union 2 I do not want to claim that social justice can be equated with the social welfare state. In fact, it is necessary to distinguish between the protective welfare state of the late 19th century and the regulatory welfare state which emerged in the second half of the 20th century. I would like to thank C. Torp for this clarification. 3 See Wieacker, F. (1967), Privatrechtsgeschichte der Neuzeit, 2. Auflage, Göttingen. 4 See Rödl, F. (2009), ‘Europäische Arbeitsverfassung’ to be published in A. Bogdandy (ed.), Europäisches Verfassungsrecht, 2. Auflage, will also be published in English by the same editors in the course of the year; Scharpf, F. W. (1991), Crisis and Choice in European Social Democracy, Ithaca, New York: Cornell University Press; Countouris, N. (2009), ‘European Social Law as an Autonomous Legal Discipline’, in P. Eeckhout and T. Tridimas (eds) (2009), Yearbook of European Law, 28, Oxford: Clarendon Press; Haar, B. and P. Copeland (2010), ‘What are the Future Prospects for the European Social Model?’, European Law Journal, 16 (3), 273-291. Hans-W. Micklitz 2 succeeded in gaining competence, not least due to globalisation pressure, the matters were either genuinely European in that they concerned transborder issues or the competence transfer was – often – instrumentalised by the Member States on the basis of ‘modernising’ 5 their national welfare systems which had become unaffordable. The situation in consumer law is different. Consumer law had not yet been settled in the Member States when the European Union assumed a leading role. 6 For this reason, consumer law is of particular interest for analysing the different concepts of justice, i.e. that followed by the Member States on one hand and Europe on the other, which clashed already in the process of making and shaping consumer law. However, the European Union at the beginning of the debate introduced a third vein of development. Art. 119 EEC Treaty on equal pay of men and women, already enshrined in the Treaty of Rome, set the tone for the development of a European anti-discrimination law, which reaches far beyond existing national concepts of equal treatment, thereby steadily intruding into ever wider realms of labour and nowadays private law. This third domain has no precedence in the Member States’ laws. Since the adoption of the SEA, more particularly the White Paper on the Completion of the Internal Market, 7 the European Union adopted a set of secondary law means which influence either directly (consumer, labour, anti-discrimination and business law directives) or indirectly (directives meant to liberalise markets, e.g. telecommunication, postal services, energy – electricity and gas, transport, health care) private law matters. This new regulatory private law is governed by a different philosophy, one which cannot be brought into line with the understanding of social justice as enshrined in labour or later the consumer movement and one which is challenging national models of social justice in private law. I call the EU model of justice access justice/Zugangsgerechtigkeit (justice through access, not access to justice), i.e. that it is for the European Union to grant access justice to those who are excluded from the market or to those who face difficulties in making use of the market freedoms. European private law rules have to make sure that the weaker parties have and maintain access to the market – and to the European society insofar as this exists. Access justice/Zugangsgerechtigkeit is not to be equated with social justice and the meaning it has developed over the 19th and 20th century in nation states. The European model of justice does not exclude a co-existence with differing national models of social justice. Where the European Union claims ultimate responsibility, technically speaking via exclusive competence as realised through the maximum harmonisation doctrine, where market integration prevails over social regulation, social justice re-emerges – as it has always been since Roman times in the ius aequum 8 – in traditional fields of labour and consumer law via ‘front stage’ regulation, in the new fields of anti-discrimination law and in the private law that governs the liberalisation policy of regulated markets (energy, telecommunication, postal services, transport) via ‘back stage’ regulation. The analysis is split into two parts – an investigation of the different models of social justice in a selected number of Member States in part II followed by an analysis of the emerging European model 5 Eichengreen, B. (2007), The European Economy since 1945: Co-ordinateed Capitalism and Beyond, Princeton: Princeton University Press, NJF, pp. 335-341; Weatherill, S. (2009), ‘Competence and Legitimacy’, in C. Barnard and O. Odusu, The Outer Limits of European Union Law, UK: Hart Publishing, p. 17, who stresses the potential of EU law to overcome nationalism and protectionism in Member States. 6 Micklitz, H.-W. (2009), ‘The Visible Hand of European Private Law’, in P. Eeckhout and T. Tridimas (eds) (2010), Yearbook of European Law, 29, 3-60. 7 Completing the Internal Market. White Paper from the Commission to the European Council (Milan, 28-29 June 1985), COM (85) 310 final, 14.6.1985. 8 In the same direction, see Calliess, G.-W. and M. Renner (2009), ‘Between Law and Social Norms: The Evolution of Global Governance’, Ratio Juris, 22 (2), 260-280. Social Justice and Access Justice in Private Law of access justice in part III. Part II serves a hermeneutic purpose in order to demonstrate the European way in dealing with matters of social justice. I start from the premise that the different models of social justice in France, Germany and England can only be understood by identifying the respective socio-economic and political background. These considerations serve as a bridge and a starting point for contrasting my findings with the ongoing development of what is ambitiously called the European Social model. I will reconstruct the evolving character of the European legal order which gave way to the rise of ‘The Social’. The unbalanced legal order – economics prevail over ‘The Social’ – shaped the integration logic, facilitated the transformation of the national social welfare state and also yielded access justice but also led to the reappearance of ‘social justice’ in new forms. The final part is devoted to shaping access justice/Zugangsgerechtigkeit and seeking a balance between the different national concepts of social justice and the European model on access justice/Zugangsgerechtigkeit. 2. The Socio-Economic and Political Background of Social Justice (in Private Law) in France, Germany and England An investigation into the socio-economic and political background of social justice in private law cannot be conducted without a look into the past. Following Berman, 9 the starting point of such an analysis should be the 11th/12th century, the conflict between the Catholic Church (the spiritual power) and the emperor (the temporal power) which culminated in the conflict between Pope Gregor VII and Emperor Henry IV over the independency of the church from temporal power. Berman argues that the separation of spiritual and temporal power did not only initiate early state building, first of the church and then the emperor, but also the scholastic school of law. 10 The crusades requested by Gregor VII led inter alia to a much stronger exchange between the western world and the Eastern world and paved the way for the reinvigoration of the old Greek and Roman philosophy. One might equally argue that the starting point of my undertaking should be the discovery of America and the growing conflicts between the Spanish and the English empire. This would lead us to the 15th/16th century. My approach however is more modest. In line with the emerging issue of social justice in the 19th century, I will limit my considerations to the last two centuries. My initial idea – perhaps this is due to the fact that I presented the first version of this paper at a conference which took place in Paris in January 2007 – was to investigate the interlink between constitution building and codification. Whilst such a starting point offers hopefully interesting perspectives in comparing France and Germany, it falls short in taking the United Kingdom into account. If anything, a parallel may be drawn between the French Revolution of the late 18th century and German state building of the 19th century on the one hand with the Civil war and the conflict between the English Crown and Oliver Cromwell in the 17th century on the other. This is roughly the period I proceed to investigate in attempting to explain where the different patterns of justice derive from. A look into the past shall contribute to a deeper understanding of social justice in private law. I must therefore equally explain how I understand and use history. History as a science has long been dominated by social, cultural and economic history. In my context, such an approach would mean analysing the interplay of constitution building and codification in the common law and the continental legal system. The mainstream approach in history, however, has changed. Today, research focuses on the reconstruction on consciousness and mentality. 11 More and more, this is done in a comparative perspective, comparative history is therefore gaining ground. 12 This is also true with 9 Berman, H,J. (1991), Recht und Revolution. Die Bildung der westlichen Rechtstradition, Frankfurt p. 144 et seq. 10 Berman, H.J. (1991), Recht und Revolution. Die Bildung der westlichen Rechtstradition, Frankfurt, p. 146 and p. 215. 11 See Raulff, U. (ed.) (1987), Mentalitätengeschichte. Zur historischen RekonstrUktion geistiger Prozesse, Berlin; Schulze, H. (1985), ‘Mentalitätsgeschichte – Chancen und Risiken eines Paradigmas der franzö- sischen Geschichtswissenschaft’, Geschichte in Wissenschaft und Unterricht, 36, 247-270. 12 Since 1993, there exists a particular review which is devoted to this task: European Review of History. Hans-W. Micklitz 4 regard to legal theory. D. Kennedy 13 uses such an approach in his path-breaking analysis of the ‘Two (Three) Globalizations of Law and Legal Thought’ in the last two centuries. In taking a general approach, we can assume that the French Constitution and the French Civil Code are 200 years old, the German Constitution is that of 1871 and the Civil Code approximately 100 to 150 years old and that the Declaration of Civil rights and the development of the common law preceded the two. 2.1. The English Model – A Liberal and Pragmatic Design Fit for Commercial Use On the surface, the challenge is that in English history there is no comparable event to the adoption of the Civil Code in France or in Germany. The civil war took place in the 17th century and led to major changes in society and in the parliamentarian system. But, it neither yielded a constitution nor a coherent codified body of civil law, rather, it made way for the Declaration of the Bill of Rights in 1689. The French and the German legal systems, seen through the eyes of a common law lawyer (daring to suggest that this is possible for me, a civil law lawyer) share a relatively homogenous view on the role and function of social justice in society. They are united in the idea of universal values that infiltrate legal principles and concepts. This is exactly where common lawyers run into difficulties. So the true difference between continental law and common law must be deeper and the reasons must date further back than the French revolution. We have to identify the break-even point from which the continental legal and the common law system diverged in following different paths. I will tie my considerations to the clash between different philosophies, to the remaining influence of the scholastic in continental Europe and to its growing critique through nominalism in the UK. This was also around the time when the relative cultural unity of Europe broke into pieces. 14 I think it is empiricism which is responsible for the deep differences between continental and common law legal systems. Empiricism paved the way for utilitarianism – and here we have the key to understanding the English reservations against the realisation of social justice through law. 2.1.1. English Pragmatism and Two Explanatory Hypotheses My view on the English legal system is stamped by empirical research that was undertaken some ten years ago on the management of emergency situations with regard to unsafe consumer goods. 15 We (the authors of the book) compared the handling of the emergency management of the very same accidents that occurred in France, Germany and the United Kingdom i.e. exploding office chairs in public buildings ( due to a breakage-prone gas cylinders) and the so-called glycol wine accident. We analysed the law in the books and the law in action. Our findings can be summed up in the following way: The French engineers and lawyers in the country asked themselves what Paris was doing, the German administrators were seeking the appropriate rules and the English administrators asked where the problem was. As far as Germany is concerned, we found our findings confirmed in a recent empirical study on product safety management in the Baltic Economic Area. 16 13 Kennedy, D. (2003), ‘Two Globalizations of Law & Legal Thought: 1850-1968’, Suffolk University Law Review, 36 (3), 631-679; Kennedy, D. (2006), ‘Three Globalizations of Law and Legal Thought: 1850-2000’, in D. Kennedy, The New Law and Economic Development, Cambridge University Press, p. 19. 14 Berman, H.J. (1991), Recht und Revolution. Die Bildung der westlichen Rechtstradition, Frankfurt, p.265. 15 Micklitz, H.-W. and T. Roethe and S. Weatherill (eds) (1994), Federalism and Responsibility - A study on Product Safety Law and Practice in the European Community, London: Graham & Trotmann. 16 Micklitz H.-W. and T. Roethe (2008), ‘ProdEnglandtsicherheit und Marktüberwachung im Ostseeraum – Rechtsrahmen und Vollzugspraxis’, VIEW Schriftenreihe, 26. Social Justice and Access Justice in Private Law It is English pragmatism that is characteristic for the handling of the legal system. Two issues arise whenever one attempts to define the differences between the civil law and the common law: first, the use of case law in preference to legal principles; and, second, the use of purposive interpretation. 17 Civil law lawyers reason downwards from abstract principles embodied in a code, whereas common law lawyers reason upwards from the facts, moving gradually from case to case. Civil law lawyers search for the Zweck im Recht, the purpose and objective behind the legal ruling if the wording of the rule to be applied, its position in the broader framework of the code in which the rule is embedded or the history of the rule do not provide guidance. Common law lawyers at least in the UK – maybe less so in the US – view purposive interpretation as an alien element. 18 Lord Goff sums up these differences as follows: 19 “Continental lawyers love to proclaim some great principle, and then knock it into shape afterwards. Instead, the boring English want to find out first whether and, if so, how these great ideas are going to work in practice. This is not at all popular with the propagators of the great ideas.” The careful reasoning of English judges is admirable, as is their focus on the wording of the rule in question, the elaboration of the meaning of the rule, and their careful explanation of the application of the rule to the particular facts of the case. 20 It is this peculiarly British pragmatism in looking at where the problem lies and at how to find an answer in the case law and/or in the rules which is so startling to a civil law lawyer who is fixated on rules. 21 The quotation from Lord Goff may find its deeper origin in three strands, (1) common law was and is first and foremost commercial law 22 as the English legal system was never easily accessible for the man in the streets. Ever since the costs to go to court were simply too high; (2) the practising lawyers, the QCs were selecting the judges. That is why judges benefitted from a strong commercial legal background and (3) judges play a much more dominant role in the common law system than in the civil law systems, both institutionally and individually. 23 However, the adversary system also limits what common law judges can do as compared to with judges in Germany and in France. We can transfer this attitude easily to the issue of social justice. There is deep reservation against the existence of universal principles that enters into the common (commercial) law system from the outside, from politics or deeper from particular socio-philosophical ideas. With regard to potential differences in Europe, pragmatism is an extremely helpful tool in 17 Lord R. Goff (1997), ‘The Future of the Common Law’, International and Comparative Law Quarterly, 46 (4), 745; Markesinis, B.S. (1994), ‘Learning from Europe and Learning in Europe’, in B. S. Markesinis (ed.), The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century, p. 1; Koopmans, T. (1991), ‘The Birth of European Law at the Cross Roads of Legal Traditions’, The American Journal of Comparative Law, 39 (3), 493. 18 See, inter alia, Judge Bingham in Customs and Excise Commissioners v. ApS Samex (1983) 1 All ER 1042, at 1056. 19 Lord R. Goff (1997), ‘The Future of the Common Law’, International and Comparative Law Quarterly, 46 (4), 745; see also Goode, R. (2001), ‘Insularity or Leadership? The Role of the United Kingdom in the Harmonisation of Commercial Law’, International and Comparative Law Quarterly, 50 (4), 751, quoting Lord Wilberforce ‘The elegance, style and analytical powers of the British legal community have survived the decline of the British Empire intact.’ 20 Markesinis, B.S. (1994), ‘Learning from Europe and Learning in Europe’, in B. S. Markesinis (ed.), The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century, p. 1. 21 Micklitz, H.-W. and T. Roethe and S. Weatherill (eds) (1994), Federalism and Responsibility - A study on Product Safety Law and Practice in the European Community, London: Graham & Trotmann. 22 Collins, H. (2009), ‘Lord Hoffmann and the Common Law of Contract’, European Review of Contract Law, 5 (4), 474-484, demonstrates the influence of one single judge, Lord Hoffman, to hammer down and to defend the traditional concept of contract law in today’s time. 23 Weber, M. [1922] 1980, Wirtschaft und Gesellschaft. Grundriß der verstehenden Soziologie, Tubingen: J.C.B. Mohr, p. 511; Collins, H. (2009), ‘Lord Hoffmann and the Common Law of Contract’, European Review of Contract Law, 5 (4), 474-484 and in particular the forceful critic of Bentham, J. [1798] (1907), An introduction to the principles of morals and legislation, Oxford: Clarendon Press, see under Part II, 1.1.3. Hans-W. Micklitz 6 managing differences. Therefore, a particular English view would be to simply accept that there are different concepts in Europe. This, however, does not mean that these differences have become part of the intellectual mindset (verinnerlicht). My hypothesis is that only by understanding English pragmatism can we comprehend English reservations against achieving social justice through law. In light of my argument that the differences between the continental legal system and the common law system can only be explained by the drifting apart of two major philosophical currents, rooted in the socio-economic environment of the respective centuries, I would like to point to two major events. This will not be possible without necessary simplifications: Firstly the clash between the scholastic and nominalism. The crusades linked the Western world to the Arabic world, helped to establish the Italian cities (Venice) as world trade centres, and – this is our point – brought Arabic discourse on ancient Greek philosophers (Aristotle and Platon) to Europe. The fall of Constantinople enhanced the influence of the Greek language and Greek philosophers in the Western World. These ideas called into question not only main stream scholastic thinking (here being understood in the meaning of Thomas von Acquin – in particular his concept of universalism) but also the world concept of the church, according to which trade should play a limited role. The critique against the scholastic found its expression in the growing importance of nominalism in the C14th and C15th, in particular in England. Nominalism paved the way for English reservations against ‘grandes idées’ and big legal principles. Secondly the rise of empiricism which is bound to the birth of the English trading state (Handelsstaat in the late C16th and early C17th). 24 In continental Europe the feudalistic society changed gradually into societies of cities and merchants. Trade (i.e. the economy) turned into a function and a task to be managed by the state – the mercantile system arose. Under Elisabeth I (1558-1603) England succeeded in breaking its dependency from the Hanseatic League with the help of the Merchant Adventurers who got royal support in establishing world wide operating trade companies. 25 Commercial law was needed to manage English trade internationally. The philosophical counterpart to the social and economic change may be seen in the development from nominalism (Ockham) to empiricism (Bacon) to utilitarianism (Hume, A. Smith, Bentham). Both historical strings tied together shall justify my assumption that the continental European understanding of social justice in the meaning of distributive justice does not really comply with philosophical, historical, economic and legal structures in England or – to put it the other way round – that England has paved the way for a legal system which is deeply rooted in nominalistic and utilitarian thinking. In this way, the English way of viewing the role and function of law is much more economic (ökonomischer) in its basic assumptions as opposed to German Idealism (Kant, Fichte, Hegel, Schelling) or French Rationalism (Descartes, Pascal, Voltaire, Rousseau). It is a ‘shorter way’ from ‘utility’ to economic efficiency and economic effectiveness than from duty, understanding reason, will or spirit (Pflicht, Vernunft, Wille, Verstand, Geist). It can be much more easily adapted to European ‘integration through law’, where judges and the judicial system are given a major role to play. 26 24 Schulin, E. (1969), Handelsstaat England. Das politische Interesse der Nation im Außenhandel vom 16. bis ins frühe 18. Jahrhundert, reprinted in The American Historical Review (1975), 80 (1), 107. 25 See James, L. (1994), The Rise and the Fall of the British Empire, London: Abacus. 26 No research has been undertaken as to whether there is a link between the adherence of the UK to the EU and the deepening of European integration via case-law. Whilst the building blocks van Gend en Loos as well as Costa Enel had been decided before the UK joined the EU, the ground breaking judgment Dassonville and Cassis de Dijon which paved the way for the development of the Internal Market were taken with participation of UK judges. Today’s pattern of integration might have changed. C. Joerges, even speaks of ‘integration without law’ referring to the dominance of politics and the influential role of ‘governance’. Social Justice and Access Justice in Private Law 2.1.2. The Gradual Intrusion of Social Justice into Labour and Consumer Law There was no big bang in the English society which led to the development of social justice motivated legal regimes. The transformation from a feudalistic and corporative society to an open democracy occurred step by step. The Civil War certainly constituted a break even point, but the transformation process was very much guided by conflicts between the nobles on the one hand and the merchants on the other who wanted to have their say in the political arena. The rise of the labour movement, in legal theoretical language the rise of the ‘Social’ 27 , in the UK is bound to its transformation from a trading state to an industrial state at the beginning of the 19th century, a few decades earlier than in continental Europe. The decline of feudalistic structures and the rise of individualistic, social and moral philosophy provided scope within which the labour movement could grow. Thilo Ramm 28 in his analysis of the new ordering of labour law in the C19th and C20th distinguishes two principles, self-help and state-help. Self-help was the basis of trade unions and strikes. This was close to the dominating liberal understanding of the free play of market forces. The system of self-help replaced the notion of individual laissez faire with collective laissez faire. Self-help and collective laissez faire was a noble circumscription for a period of fight and conflict which led to compromises at both ends, between the trade unions and the trade associations and between the different political forces in Parliament. If Parliament took action it did so in response to concrete problems via isolated statutes and ad hoc political decisions. This is the particular British way of dealing with matters of justice. The collective laissez faire system and together with unemployment insurance legislation set up a stable system that lasted until the 1960s. If any, the short period under the (old) Labour government in the 1960s could be seen as the unique time in which statutory policy was used as a means to strengthen social institutions and law as a means of distributive justice in labour law. Both elements, self-help through trade unions and regulatory welfare state-help did not survive Thatcherism. The story of consumer law is a relatively young one. The debate started in 1960 with the Molony Report, which was requested by the labour government. It identified numerous deficiencies and injustices that were affecting individuals which were the basis of subsequent changes in the law. However, it took until 1973 before consumer policy as a political issue was widely accepted across the political parties. 29 The UK met the usual prejudices in that it did not formulate a comprehensive consumer policy program, like France or Germany, but rather reacted in a pragmatic-problem bound political way. In the field of private law, three major reforms took place in about four years, the Amendment of the Supply of Goods Act 1973, the adoption of the Consumer Credit Act in 1974 and the Unfair Contract Terms Act in 1977. All interventions created mandatory contract law, fully in line with main stream thinking of using consumer law as a regulatory tool to limit contractual freedom. However, there are differences between the continental approach on the one hand and the English approach on the other. The Unfair Contract Terms Act in essence prohibits exclusion clauses and does not subject contracts between business and consumers to a general fairness test, just as Germany and some years later France, which would have given judges the power to individually assess fairness in consumer contracts. The UK approach on consumer credit is less determined by a protective outlook than by guaranteeing a workable and feasible capital market. It combines private law and public law means. In Germany, consumer credit is certainly one of the areas where not so much the legislator but 27 Kennedy, D. (2003), ‘Two Globalizations of Law & Legal Thought: 1850-1968’, Suffolk University Law Review, 36 (3), 631-679; Kennedy, D. (2006), ‘Three Globalizations of Law and Legal Thought: 1850-2000’, in D. Kennedy, The New Law and Economic Development, New York: Cambridge University Press, p. 19. 28 Ramm, Th. (1986), ‘Epilogue: The New Ordering of Labour Law’, in B. Hepple (ed.) (1986), The Making of Labour Law in Europe. A comparative Study of Nine Countries up to 1945, London: Mansell Publishing, p. 277. 29 See Whincup, M. (1980), Consumer Legislation in the United Kingdom and the Republic of Ireland, New York, p.6. Hans-W. Micklitz 8 rather the courts play a predominant role in the protection of the weaker party. The famous intervention of the German Constitutional Court into collateral guarantees between the bank and the debtor’s daughter raised much concern even outside Germany. 30 There is no counterpart in the case law of the House of Lords (now Supreme Court). Most recently the Supreme Court made clear that there is no need and no justification under English law – even if it is implemented EU law – to introduce a protective design into consumer contracts. 31 Neither the Thatcher government in the 1970s and 1980s nor the new Labour government of Blair in the 1990s or in the beginning of this century brought about substantial changes in consumer law, with one exception: 32 the liberalisation and privatisation of former state incumbents in the field of telecommunication, energy and transport. Former customers were turned into market citizens rather than take-care consumers who freed from self-responsibility. The return to the market as the dominating power, self-help instead of statutory regulation, has a long standing history in the UK. Liberalisation and privatisation of former state monopolies can easily be connected to utilitarian thinking. 33 In this way, the UK preceded and strongly influenced development in the EU. 34 2.2. The French Model – A Forward Looking Political Design of a (Just) Society France has a particular standing in the legal and theoretical discourse on the interrelationship between constitution building, private legal order making and matters of justice. It results from the French revolution the results of which are still today stamping our understanding of ‘a’ constitution and ‘a’ civil code. The key events in France took place in the space of two decades, contrary to England where no such clear cut events, at least not with regard to constitution building and private legal order making, can be fixed. The Revolution led to a break 35 with feudalistic structures and instituted a bourgeois society governed by individual freedom and equality of rights that became even more visible in the Code Civil and in the French Constitution. 36 I start from two premises: Firstly, the vision of the French revolution which was proclaimed in the Declaration of Human Rights, pinned down in a Constitution and later codified in the Civil Code has deeper social, cultural, economic and intellectual roots. I will argue that today’s conception of social justice in France can best be understood as a political forward looking concept. This goes back to French Rationalism and Descartes. Secondly, French society may be characterised by the tension between, on the one hand, intellectual projects guided by the ‘grandes idées’ (what is right is useful) – the French Constitution and the French Code – which strengthen the power of the executive to the detriment of the power of the judiciary, and on the other hand, the highly politicised bottom-up resistance against an excessively far 30 Marella, M.R. (2006), ‘The Old and the New Limits to Freedom of Contract in Europe’, European Review of Contract Law, 2 (2), 264, in particular under reference to Teubner, G. (1999-2000), Ein Fall von strUktureller Korruption? Die Familienbürgschaft in der Kollision unverträglicher Handlungslogiken, Kritische Vierteljahreszeitschrift für Gesetzgebung und Rechtswissenschaft, pp. 83 and 388. 31 Judgment, 25.11.2009, Office of Fair Trading (Respondents) v. Abbey National plc & Others (Appellants), Michaelmas Term (2009) UKSC 6 on appeal from (2009) EWCA Civ 116. 32 Howells, G. and Weatherill, S. (2005), Consumer Protection Law, England: Ashgate Aldershot, p. 78. 33 Howells, G. and Weatherill, S. (2005), Consumer Protection Law, England: Ashgate Aldershot, p. 78, underline the influence of v. Hayek in the way in which the England administered the privatisation process under the Thatcher regime. 34 Keßler, J. and H.-W. Micklitz (2008), ‘Kundenschutz auf den liberalisierten Märkten – Vergleich der Konzepte, Maßnahmen und Wirkungen in Europa – Personenverkehr/Eisenbahn,’ VIEW Schriftenreihe, Band 24; Keßler, J. and H.-W. Micklitz (2008), ‘Kundenschutz auf den liberalisierten Märkten – Vergleich der Konzepte, Maßnahmen und Wirkungen in Europa – Telekommunikation, VIEW Schriftenreihe, Band 25. 35 Arendt, H. (1963), On Revolution, London: Penguin Books. 36 Wieacker, F. (1967), Privatrechtsgeschichte der Neuzeit, 2. Auflage, Göttingen, p. 343. Social Justice and Access Justice in Private Law reaching executive power. The fight over ‘the Social’ demonstrates that social justice is a highly politicised matter throughout in society, subject to conflict, support or rejection. 2.2.1. The Political Conception – A Tentative Explanation Just like in England, the turning intellectual point can be attributed to the fading influence of scholastic thinking. It deliberated the spirit from methodological scholastic constraints and paved the way for a particular French rational method in philosophy. The founding father was certainly Montaigne (1533-1592). His epistemology went along with the Zeitgeist of the 16th century and the then radical scepticism ‘what do I know’. His major contributions led to the final discredit of the then existing knowledge as a result of a fully-fledged scepticism and an attempt to find a generally binding moral and social peace. Montaigne set long lasting incentives for critical reflection of all existing knowledge and values, what has been later named ‘Enlightenment’. Looking back, the 16th century may be regarded as a transitional period in which the old scholastic forms of thought were overcome, but where a new method to investigate the ‘truth’ and the concept of the truth was not yet developed. This was left to the 17th century. Descartes began with his Discours de la Méthode. He claimed that a particular method to acquire the truth is needed, which then allows to solve all philosophical questions. For Descartes ‘what is true is useful’ and not ‘what is useful is true’ like in utilitarianism. This is the key to understanding the particular French political conception. Descartes’ philosophy results in the priority of theory over practice which is the basic thesis of French intellectualism. The Cartesianism heavily influenced political life and the emergence of the absolute monarchy of Louis XIV. The fall of the absolute monarchy goes hand in hand with the rising criticism of Descartes’ philosophy – through Voltaire and Rousseau. What matters in our context is the critique of Locke and Hume against Descartes’ notion that man has natural ideas. Condillac and Helvetius instead argued based on psychological empiricism that men are equal from time of birth. This concept constituted the scientific basis for the French revolutionary ideas. The innovative and creative potential of French philosophy in the 17th century becomes clear when we look to the setting of new incentives in social philosophy and in the perception of the moral. They overcome the Cartesian metaphysic – revelation of natural laws through God, responsibility before God, reception of power of the sovereign from God – which might be largely due to moral decline. Moral standards should be defined by themselves. The different strains – Rousseau on the one hand and a more utilitarian vision inspired by English philosophers on the other – are united in the attempt to found a moral removed from theological and metaphysical requirements. This is the core of French laicity. 2.2.2. Politicising Private Law as Social Law Just like in England, the development of labour law is bound to the growing role of the labour movement, the establishment of trade unions and the rise of the protective welfare state. This does not mean that self-help and state-help took similar forms. The trade unions in France are much closer to the different political parties. Although somewhat exaggerated, one may assume that each party may be associated with a particular trade union and vice versa. That is why social conflicts between workers and employers bear a political dimension that cuts across different parties, on each side of the poles. The French state on the other hand is much more the protective welfare state in the German sense which understands or which has learned to understand under the constant and highly politicised pressure of the labour movement that it has to take workers’ interests systematically into account. Hans-W. Micklitz 10 From a French perspective the notion of labour law does not make much sense. It is much more correct to speak of ‘droit social’ which enshrines employment law and social security. Like in Germany ‘droit social’ developed outside the civil law system and roughly at the same time. 37 The governments of the ‘belle époque’ adopted three major laws, insurance against accidents at work in 1898, the ban on Sunday trading in 1906 and the social insurance system (pension and invalidity) in 1910. The French social laws and the French lawyers contributed substantially to the rise of ‘droit social’ in Europe and beyond, in particular after the First World War. The intellectual spirit of ‘The Social’ in the late C19th and early C20th is grounded in the path breaking philosophical work undertaken during the decline of the French absolute monarchy, with its focus on ‘moral’ philosophy. 38 Consumer law is a product of the consumer society, i.e. of the market society. Two particularities deserve to be mentioned. In the UK and in Germany consumer policy arose as a statutory policy, but in France the politicisation of consumer law is closely intertwined with the role and function of trade unions and other societal players in the public domain. When consumer policy reached the political agenda, the different trade unions entered the field and integrated the voice of consumers into their overall policy at least to some extent. The second particularity is demonstrated by the close links between labour and consumption may be demonstrated by returning to the roots of French consumer law and in demonstrating the resemblance between the two constitutive elements of labour and consumer law which point to the French Revolution. The system of statutory price control, which was forgone in the late seventies of the 20th century under pressure from the EU, had created strong and stable ties between the public and the private sphere, which found their expression in the way in which price fixing was used to introduce consumer protection issues. Opening up the market for consumer products, i.e. allowing the market to fix the price, meant that France had to set up a consumer policy which should accompany market liberalisation. Therefore, consumer policy in France has always been and still is highly politicised. It is exposed to strong political variations according to the political party which holds the power and is closely related to social trends, as promoted by trade unions. In Europe France took a leading role in the field of consumer information and consumer contract law. It fits well then that the French Government, more particularly the Minister of Economics, undertook a major effort in the early eighties to set a benchmark for the future of consumer law in Europe. The Commission de la Refonte, established by the Government and headed by Jean Calais-Auloy, intended to develop a coherent body of rules that would stand side-by-side with the Code Civil. 39 This ambitious project, which would have given France a leading role in consumer law, failed for various reasons, not least because of the growing importance of European consumer law. However, the project was originally designed as a forward looking project reaching beyond the elaboration of technical rules stressing a rather political message, the one of the role and function of consumers as citizens in a market society. The drafters even intended to transpose the model of declaring collective agreements generally applicable to standard contract conditions. 40 The decline of French consumer law as a forward looking design for the future is obvious. The EU project on a European Code on Civil Law endangers, from a French understanding, the unique role the 37 Haupt, H.-G. (1995), ‘Sozialpolitik und ihre gesellschaftlichen Grenzen in Frankreich vor 1914’, Jahrbuch für Wirtschaftsgeschichte, p. 171. 38 Kennedy, D. (2003), ‘Two Globalizations of Law & Legal Thought: 1850-1968’, Suffolk University Law Review, 36 (3), 649. 39 Proposition pour un nouveau droit de la consommation, rappport de la commission de la refonte du droit de la consommation au secrétaire d’État auprès du ministre de l’Économie, des Finances et du Budget chargé du Budget et de la Consommation, 1985. 40 Calais-Auloy, J. (1984), ‘Collectively Negotiated Agreements: Proposed Reforms in France’, Journal of Consumer Policy, 7 (2), 115-123. Social Justice and Access Justice in Private Law Code Civil enjoys in the civil law countries. This might explain the sometimes nationalistic reactions against the European project and the project ‘Catalan’ 41 which is meant to bring intellectual leadership back to France. Even the European Commission had to consider the ‘particular’ position of France and the French Civil Code in the European codification project. The ‘terminology group’, composed partly of the French academic Group constituted by the Société de Législation Comparée and the Association Henri Capitant des Amis de La Culture Juridique Française 42 , had to somewhat compensate for the German-Dutch-English-Polish dominated Study and Acquis Group. 3.3. The German Model – An Authoritarian Paternalistic-Ideological though Market Orientated Design The German Civil Code entered into force on the 1st January 1900. So the German Civil Code is a hundred years younger than the French Civil Code. In the aftermath of the Vienna Congress, the scattered German regions (kingdoms, counties (earldoms), regions) failed to unite in a German state, united by its own constitution. It took until 1871 before Germany managed, under the regime of the Prussian king/emperor and his chancellor Bismarck, to adopt a constitution. I will build my arguments around two major guiding assumptions: Firstly, there is a direct line from Kant to Savigny to the formal rationality of the private law system (Weber) which serves the execution of capitalist society. The Kantian philosophy inspired Savigny in the foundation of the so-called ‘Historische Schule,’ which gained dominating influence during the 19th century and which is still influential today. It has created a particular way of thinking which favoured the rejection of all social policy issues into the ‘pure’ private law system. Social issues were outsourced to special private law legislation outside the BGB. Secondly, there is the link between Hegel, Thibaut, German idealism, and legal naturalism, as expressed in Jhering, Ehrlich, Weber, Kantorowicz, where the national ideals were tied to social ideals of a society and a nation. Such a vision can hardly be connected to an authoritarian state that accepts the responsibility for guaranteeing protection in order to exclude political participation. The German version of legal naturalism favours an instrumental use of the legal system for matters of justice. 3.3.1. Ideological Paternalism and Market Pragmatism The late adoption of the constitution is mirrored in the equally late adoption of the German Civil Code. It is still worth studying the intellectual quarrel of the two German law professors, Thibaut and Savigny over the value of a codified German Civil Code, Thibaut fighting in Heidelberg enthusiastically – inspired by German Idealism and ‘les grandes idées’ of the French revolution – for a genuine German Code, Savigny fighting brilliantly (but not enthusiastically) for the maintenance of the old Roman law. 43 Savigny is the founding father of the German Historische Schule, which argues that law shall and cannot be derived from the ‘nature’ or ‘reason’ of the human being (Natur und Vernunft). Quite to the contrary law should and must be understood as a historical product of the spirit of the people 41 Cartwright, J. and S. Vogenauer and S. Whittaker (eds) (2009), Reforming the French Law of Obligations, England: Hart Publishing. 42 Fauvarque-Cosson, B. and D. Mazeaud (ed.) (2008), European Contract Law: Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules, Munich: Sellier European Law Publishers. 43 Thibaut, A.F.J. and F.C. v Savigny [1973] (2002), Ihre programmatischen Schriften, mit einer Einführung von Hans Hattenhauer, München. Hans-W. Micklitz 12 (Volksgeist). The task of the lawyer is not to constitute a meaningful legal order for human beings, but to collect and systemise the legal material produced by the spirit of the people. That is why it is called in a somewhat misleading way ‘Historische Schule’. History appears rather static. Law in this sense is kantesian formal (kantisch-formal), not inspired by ‘nature’ and ‘reason’ (Natur und Vernunft) as Hegel claimed. Savigny wanted to become the ‘Kant’ of the legal system (der Kant der Rechtswissenschaft). The ideals of Thibaut were reflected in Hegel’s philosophy who paved the way for studying history, its development and its dynamics of the development. 44 The raising legal naturalism (Jhering) contributed to a better understanding of the historical and present reality of legal orders. Most of the legal auxiliary sciences (rechtliche Hilfswissenschaften) such as criminology, Rechtstatsachenforschung (research on legal facts) as well as legal sociology (Rechtssoziologie – Eugen Ehrlich and Max Weber) have their origin in legal naturalism as well as the Freirechtsschule. 45 The dark side of legal naturalism, which is the standard formula, results from its strong believe in deducing from historical and present reality repercussions on the perfect model of justice which has to be achieved by a politically guided law that is supposed to achieve a particular social purpose. The tension between pragmatic market based legislation in the formal sense and the strong strive for social ideas is characteristic for the German political and legal system. Law making in the Germany of the early 19th century was understood as an academic exercise, quite contrary to the democratic discussion that surrounded the adoption and distribution of the French Civil Code. The Thibaut/Savigny conflict, the conflict between two leading professors, led to the instauration of the two law commissions again composed of professors which finally paved the way for the adoption of the German Civil Code, some fifty years later. The leading role of academics in Germany is certainly associated with the political – democratic – vacuum that resulted from the failed attempt in 1848 to establish a German nation. 3.3.2. Authoritarian Liberalism and the Rise of Labour Law and Consumer Law Social justice issues did not made their way into the German Civil Code. The political – statutory – response to distortions of the industrial revolution, the expropriation of the labour force and its disastrous effects to health and safety resulted in the establishment of a dense social security system, adopted in the last decade of the 19th century. Between 1881 and 1889, the German Reichtstag adopted the law on health insurance (1881), accident insurance (1883) and invalidity insurance (1889). In 1891 the introduction of the pension funds followed. These protective welfare activities had equally to compensate for the exclusion of the fourth class (the workers) from political power by the Sozialistengesetze. The explicit objective was to undermine the rise of the labour movement. The only way for workers to organise themselves was to unite in education circles, the so-called Arbeiterbildungsvereine. They constituted the nucleus for the organisation of the labour force after the collapse of the second German empire with the end of the First World War. The Republic of Weimar did not only bring a new democratic constitution, it also gave way to major legislative acts which enforced the labour movement, from 1922 on work councils (Betriebsräte) which granted workers rights to participate in the decision-making of companies. Already in 1915 Hugo Sinzheimer had forcefully advocated for the introduction of legislative means to declare collectively negotiated tariffs generally applicable. The project, however, was only realised in 1949. This time lag is characteristic for the delayed transposition of intellectual concepts into legal means. The Weimar Republic provided a fertile ground for ideas and concepts to give the economy a more democratic outlook (Napthatli). However, these ideas and concepts were only realised in the 1970s when Germany elected the first 44 Schwintowski, H-P. (1996), Recht und Gerechtigkeit. Eine Einführung in Grundfragen des Rechts,1, Berlin: Springer-Lehrbuch, p. 35. 45 Wieacker, F. (1967), Privatrechtsgeschichte der Neuzeit, 2. Auflage, Göttingen, p. 570. Social Justice and Access Justice in Private Law government in which the social democrats won the majority in the elections and adopted, in 1976, the law on codetermination (Mitbestimmungsgesetz). 46 The rise of consumer law brought the discussion between the two academic camps back to the fore (Professoren-Modell 47 ), a discussion which could only take place in Germany, as only German academics still hold a strong tradition in what constitutes in essence a political debate that becomes a legal debate. The question behind the question was whether the regulatory spirit of the old German Civil Code should be amended so as to integrate the missing social(ist) oil, not labour law but consumer law, into the German Civil Code – which had grown to a separate field of law outside the German Civil Code. The legal-political response to the consumer society which grew and grew in the aftermath of the Second World War remained timid and half-hearted. In an amazing historical continuity, consumer law grew outside the Civil Code in the form of special laws and regulations (Sonderregelungen = Sonderprivatrecht), commented and documented by the critical academia. Since 2002, consumer law provisions form part of the German Civil Code. This time, however, – some voices set aside 48 – there was no outcry in the academia, although the integration of the consumer contract law rules challenge the system and the coherence of the German Civil Code. In the shadow of the so-called modernisation of German contract law (Schuldrechts-Modernisierungsgesetz), the executive, i.e. the Ministry of Justice, smuggled the bulk of consumer contract law rules into the German Civil Code. The much more political dimension, the merging of technical, formalistic civil law (Savigny) and value loaded consumer law (v. Gierke), however, did neither attract public nor much academic awareness. The integration of consumer law into the German Civil Code has been performed as a technical bureaucratic exercise. Till today, academia largely ignores possible long term effects of the materialisation of private law through mandatory contract law rules and its Europeanisation through the integration of harmonised consumer contract law rules on the traditional body of consumer law. The old camps in civil law are still alive but their use of aggressive language and rhetoric has become subdued. 4. The European Integration Process and the European Model of Justice My hypothesis is that in the ECJ jargon, the ‘European legal order’ and the ‘European constitutional charter’ 49 has yielded, over the last fifty years, a genuine model of justice, which I term access justice (Zugangsgerechtigkeit) which differs from national concepts of social justice. This also means that the EU is not coalescing with the Member States’ models of justice. 50 46 Brüggemeier, G. (1977), Entwicklung des Rechts im organisierten Kapitalismus, Band 1: Von der Gründerzeit zur Weimarer Republik; (1979), Band 2: Vom Faschismus bis zur Gegenwart, Frankfurt: Sindicat. 47 Zimmermann, R. (2005), ‘Consumer Contract Law and General Contract Law: The German Experience’, Legal Current Problems, 58, 415-489; Schepel, H. (2007), ‘The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law’, Law and Social Inquiry, 32 (1), 183- 199; Kiesow, R.M. (2010), ‘Rechtswissenschaft – was ist das?’, JuristenZeitung, 586. 48 Adomeit, K. and H. Marcuse (2004), ‘der Verbraucherschutz und das BGB,’ Neue Juristische Wochenschrift, 579, 827-838; Adomeit, K. (1994), ‘Die gestörte Vertragsparität – ein Trugbild’, Neue Juristische Wochenschrift, 2467; Flume, W. (2000), ‘Vom Beruf unserer Zeit für die Gesetzgebung’, Zeitschrift für Wirtschaftsrecht, 1727. 49 Walker, N. (2006), ‘Big ‘C’ or Small ‘c’?’, European Law Journal, 12 (1), 12-14. 50 It might be particularly interesting to discuss whether and to what extent it was possible for the EU – and not for the Member States – to realise the principle of equal treatment in family law and later in private law per se, see Kennedy, D. (2003), ‘Two Globalizations of Law & Legal Thought: 1850-1968’, Suffolk University Law Review, 36 (3), 631-679, where he points out that the continental European countries as well as common law countries were unable to realise equal treatment in family matters during the peak time of ‘The Social’. Hans-W. Micklitz 14 4.1. The Evolving Character of the European Legal Order and the Rise of ‘The Social’ Since the late nineties there are two issues that have dominated the European legal discourse, 51 the development of a European Constitution and the making of a European Civil Code. If both the Constitution and the Civil Code were to be realised they would bring the European Union much nearer to the concept of a nation state as developed in the 17th century. At a first albeit superficial glance, the historical similarities between state building and code-making in France at the end of the 18th beginning of the 19th century and the current debate on Europe’s future are striking. These similarities have, however, neither been seen nor been subject to debate at either political or legal theoretical level. In fact, both grand projects are strongly interconnected via questions of their feasibility, of the degree to which they take into account ‘The Social’, via the shaky legitimacy of the founding fathers – the European Convention and the Acquis/Study Group, – via the unclear mandates/competencies of the drafters, via the particular character of a European Constitution and a European Civil Code in contrast to national constitutions and civil codes, via the ambitious though somewhat misleading use of the word ‘constitution’ and ‘Civil Code’ and in sum via ideological preconceptions. 52 In the meanwhile both projects, the grand constitutional project and the grand civil law project, ‘failed’. Maybe one reason can be found in the blatant neglect of the inner links between the two projects, in particular the link between a Social Model that could and should guide the debate over a European constitution and the development of a new European private legal order that bears a social outlook. Such an undertaking would have entailed the need to discuss, in the respective democratic fora, matters of justice at the European level. Both grand projects have been guided by a similar philosophy, i.e. that European integration is regarded very much like a technical process concerned with the development of correct rules that contribute to the furtherance of market integration rather than a controversy over social political aims and perspectives. 53 The technocratic nature of the debate served an important purpose by depoliticizing the discussion in domestic political circles. This does not mean that the grand projects do not deal with ‘justice’ or do not enshrine a particular model of justice, but such a model remains hidden either behind or amidst technicalities or ‘grand words’ without any specification or meaning. 54 The material substance of the European Constitution was ‘saved’ in the Lisbon Treaty. The European Civil Code project led to intensive academic debates and the production of the Acquis Principles 55 and the Draft Common Frame of Reference. 56 The latter comes near to a fully-fledged European Civil Code in its form as an ‘academic exercise’, 57 without, however, political support from the European 51 For an account of the theoretical strains in the debate, Walker, N. (2005), ‘Legal Theory and the European Union: A 25th Anniversary Essay’, Oxford Journal of Legal Studies, 25 (4), 581-601. 52 Micklitz, H.-W. and F. Cafaggi (eds) (2010), The European Private Law after the Common Frame of References, Cheltenham: Edward Elgar Publishing. 53 See for an early critique of the technical a-political character of the codification project of the European Commission in Social Justice Study Group (2004), ‘Social Justice in European Contract Law: A Manifesto’, European Law Journal, 10 (6), 653-674 and on the outcome of the project see Hesselink, M.W. (2008), ‘CFR & social justice: a short study for the European Parliament on the values underlying the draft common frame of reference for European private law: what roles for fairness and social justice?’, Centre for the Study of European Contract Law Working Paper Series No. 2008/04, who gives a relatively positive account of the degree to which social justice has been taken into account. 54 See Art. 2 of the Lisbon Treaty where ‘justice’ as one of the EU values is listed. 55 2007. 56 Outline edition, 2009. 57 I do not regard the production of the DCFR as a mere academic exercise as the drafters were actually working as legislators with a political mandate in mind. Social Justice and Access Justice in Private Law Council and the European Parliament. 58 Whether the DCFR will be ‘saved’ as a political project remains to be seen. However, the newly appointed European Commission has now taken a political initiative in order to translate the ‘academic Draft Common Frame of References’ into a political draft. The collaboration between the European Commission and the European Academia resembles, in an ominous way, the German Professorenmodell where the academia co-operate with an authoritarian executive, overstepping a weak parliament. 59 What remains out of the similarities between 19th century France and 21st century Europe, however, are insights on the differences between national and European constitution building and national and European civil law code making. The lesson to be learned is that the European legal order should be understood as a legal system and a polity under constant and ongoing construction. The evolutionary character is characteristic for the European legal order. ‘The Social’ has been gradually established over the last 50 years. Just like at the Member States’ level, ‘The Social’ means first of all labour law and social security. It is an open secret that this domain still remains rather underdeveloped. Consumer law, quite to the contrary, is a field in which the European Union has been setting incentives for the last 25 years. Anti-discrimination law might serve as a bridge between the two. It connects labour law and consumer law as it cuts across the various parts of the economy and the society. Anti- discrimination law is about to become the identity mark of the European Union. 60 This conglomerate of rules is going to yield a genuine European model of justice. Such a model of European justice, and I start from the premise that there is one, has to be dug out of the wedge of EU rules which are enshrined in these three areas and brought to the limelight not only of the academic debate. 4.2. The Impact of the European Integration Process on Labour and Anti-Discrimination Law 4.2.1. Labour Law and Anti-Discrimination Law The development of the substantive EU labour law may be broken down to three major trends. The Rome Treaty introduced, under pressure from France, Art. 119 (Art. 141, Art. 157 TFEU) on equal payment of men and women. A most active court and a responsive EU legislator backed by a number of Treaty amendments in particular via the Treaty of Amsterdam took an active stand. Art. 13 (Art. 19 TFEU) and Art. 141 (3) (Art. 157 TFEU) transformed the rules on the equal payment principle into a general principle of anti-discrimination via Treaty amendments and secondary Community law. Its role, function and reach in private law are subject to a controversial debate. 61 The second relatively stable and coherent field where the EU holds competence since the introduction of Art. 118 a) (Art. 137, Art. 153 TFEU) into the Single European Act, is health and safety at work. Here too, the EU has demonstrated considerable law-making activeness. The third area is rather broad and covers a whole range of legal issues, demonstrating that despite all the impressive activities of the EU, labour law remains rather pointillistic till today. The OMC may be regarded as a separate trend or branch of EU labour law. It has, however, not really changed the sketchy picture of EU labour law despite all the activities which have been taken under the new regime. 58 See in so far, Hesselink, M.W. (2008), ‘CFR & social justice: a short study for the European Parliament on the values underlying the draft common frame of reference for European private law: what roles for fairness and social justice?’, Centre for the Study of European Contract Law Working Paper Series No. 2008/04. 59 Schepel, H. (2007), ‘The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law’, Law and Social Inquiry, 32 (1), 183-199. 60 In this direction see, Münch, R. (2008), Die Konstruktion der europäischen Gesellschaft: zur Dialektik von transnationaler Integration und nationaler Desintegration, Frankfurt/Main: Campus-Verl. 61 Critical Säcker, F.J. (2006), ‘Vertragsfreiheit und Schutz vor Diskriminierung’, ZEuP, 1ff. and Basedow, J. (2008), ‘Grundsatz der Nichtdiskriminierung’, ZEuP, 230-251; supportive, Vandenberghe, A.-S. (2007), ‘The Economics of the Non-Discrimination Principle in General Contract Law’, European Review of Contract Law, 3 (4), 420. Hans-W. Micklitz 16 All three strains of development are united in one perspective, they demonstrate how much the EU is focussed on opening up markets for workers, on fighting against discrimination in access requirements, in short, granting access justice/Zugangsgerechtigkeit, thereby leaving the social welfare ‘after care’ to the responsible Member States. Three phases can be indentified: co-ordination of national laws and policies, European legislative activism and European hegemony, which allow for structuring the potential impact of the rise of ‘The Social’ at the EU level concerning matters of social justice. Co-ordination: Art. 119/Art. 141, today Art. 157 TFEU did not provide for legislative competences in its initial form. This article constituted the battlefield of litigation between workers and employers, an area which the ECJ infiltrated via the preliminary reference procedure. 62 On the basis of Art. 100 (Art. 94, today Art. 103 TFEU), the EEC as it then was, unanimously adopted six directives which can be grouped into three topics: (1) Directive 75/117 on equal pay and Directive 76/207 (today Directive 2002/73) on access to employment, both strongly connected to the principle of equal pay under Art. 119; (2) Directive 75/129 on collective redundancies (amended via Directives 92/56 and 98/59) and Directive 80/987 on insolvency protection (amended by Directive 2008/94) and (3) Directive 77/187 on transfer of rights and Directive 91/533 63 on information of worker rights. The two Directives 75/117 and 76/207 deserve particular attention here since the ECJ developed ground rules for the judicial protection of individually enforceable rights 64 that were transferred from the field of equal pay and access to employment into all other fields of European law where the enforceability of subjective rights were at stake. 65 Without enforceable individual rights, access justice would have remained law in the books. Legislative activism: Despite limited competences, the European Commission pushed for the adoption of a series of Directives, thereby taking control of at least one of the central issues of labour policy via minimum standards: the framework Directive 89/391 health and safety of workers, Directive 92/85 on the protection of pregnant women at work, Directive 93/104 on working time (amended by Directive 2003/88) and Directive 94/33 on the protection of young people at work. The addressee of the EU legislation is the particularly vulnerable worker, those exposed to dangerous working conditions, pregnant women and young people. Again, an abundant series of ECJ judgments could be reported where an active court stretched the boundaries of the scope of application of harmonised EU rules and strengthened individual rights to fighting for access. Maastricht brought the EMU but also new competences in the field of social policy with binding effects only for the remaining 11 Member States. This constitutional deficit was remedied in Amsterdam and paved the way for the UK to take over the set of four Directives adopted between 1994 and 1997. Art. 2 (2) of the Protocol led to the adoption of Directive 94/45 on the working council (as amended by Directive 2009/38) and Directive 97/80 on burden of proof (the latter was repealed by Directive 2006/54). Art. 4 (2) of the Protocol allowed for the introduction of Directive 96/34 on parental leave and 97/81 on part-time workers. The latter two are meant to strike down particular modes of discrimination. In Laval the ECJ interpreted the posting workers Directive 96/71as de facto and de jure laying down fully harmonised standards for the benefits of workers from the new Member States, thereby breaking down the barriers to the labour markets in the old Member States. 66 62 Micklitz, H.-W. (2005), The Politics of Judicial Co-operation in the EU – the Case of Sunday trading, Equal Treatment and Good Faith, New York: Cambridge University Press, p. 166. 63 Directive 91/533, though adopted after Directive 90/987 is still based on Art. 100 and what is even more important, it is guided by the same spirit as the previous five directives adopted between 1975 and 1980. 64 Micklitz, H.-W. (2005), The Politics of Judicial Co-operation in the EU – the Case of Sunday trading, Equal Treatment and Good Faith, New York: Cambridge University Press, pp. 202 and seq. 65 See N. Reich, Bürgerrechte, 1999, §§ 8, 9, 14 at 228. 66 Judgment, 18.12.2007, Case 341-05, Laval un Partneri ECR 2007, I-11767 at 51-111; there is an interesting and controversial debate on how to read Directive 96/71, in particular on whether the minimax debate fits to the directive at all, see Deakin, S. (2008), ‘Regulatory Competition after Laval’, Cambridge Yearbook of Social Justice and Access Justice in Private Law The EU managed to introduce a new spirit into the new set of Directives, which can noted in two Directives, 94/45 on working council and 96/17 on the posting of workers. Both contain a strong cross border element and both rely on the image (leitbild) of a worker which resembles the circumspect and responsible consumer. The new ideal type of the European worker has to enforce her rights herself. Protecting pregnant women, securing the rights of the youth and granting parental leave, all these regulatory means are given an ever stronger economic element based on the premise that the EU labour market should remain open for everybody, not only for the male full time worker. An endless chain of ECJ judgments shaped the European labour law acquis (the established set of EU rules and ECJ case law) and contributed to the development of a new leitbild of the worker which is perhaps most prominently designed in the Bosman 67 judgment. Striving for hegemony: The third phase maybe characterised by three modes of regulation, a hidden mode, a new mode and an old mode in a new disguise. The hidden mode refers to cold harmonisation which results from the introduction of a single currency. Whilst the EU holds power, if any, to adopt minimum standards in all fields of labour law and policy where it has received competences, the practical effects of the EMU which became clear only after 1 January 2002 leads to a situation where Member States are deprived from using the national currency as a means to fight against unemployment. The welfare state is modernised by the back door – and through the EU. The new mode results from the introduction of the OMC in 2000 and its growing importance even outside core fields of labour policy such as social inclusion (OMC SPIC) and the European Employment Strategy (EES). 68 The OMC proceduralises social policy making and social policy enforcement by new modes of governance. Proceduralisation within new governance does not allow for setting clear cut standards on material justice. In this way, the OMC is much nearer to the model of ‘access justice’. There is, however, one area of labour law and policy, where the European Union has and is setting the tone more or less since the insertion of Art. 119 into the Treaty of Rome and independent from the ups and downs of the European integration process via numerous directives in the field of occupation and employment and via a proactive ECJ – the fight against old and new forms of discrimination not only between men and women. The Treaty of Amsterdam extended Community powers in Art. 141 (3) (now Art. 157 TFEU) and introduced Art. 13 (now Art. 19 TFEU), thereby paving the way for a series of Directives which, overarching the boundaries of EU labour law and policy, set down minimum standards in the fight against discrimination. Art. 141 (3) (Art. 157 TFEU) was used by the EU to amend Directive 76/207 by Directive 2002/73 and to recast Directive 76/207 via Directive 2006/54. In so far the EU changed competence, from Art. 100 (Art. 94) to the more specific rule in Art. 141 (3) (Art. 157 TFEU). Art. 13 (now Art. 19 TFEU) initiated three Directives, 2002/43 on equal treatment between persons irrespective of race and ethnic origin, 2000/78 establishing a general framework for equal treatment in employment and occupation and last but not least Directive 2004/113 for equal treatment between men and women on the access to the supply of goods and services. 69 The current situation: The anti-discrimination principle has found its way into the draft of the European Constitution. It is anchored in Art. 2 of the Union Treaty and Art. 21 of the Charter of (Contd.) European Legal Studies, 10 (10), 581-610 and Dougan, M. (2009), ‘Minimum Harmonisation after Tobacco Advertising and Laval Un Partneri’, in M. Bulterman and L. Hancher and A. McDonnell and H. Sevenster (eds.), Views of European Law from the Mountain: Liber Amicorum Piet Jan Slot, Kluwer Law International, p. 12-13. 67 Judgment of 15.12.1995, C-415/93, Union royale belge des sociétés de football association and others/ Bosman and others ECR 1995 I-4921. 68 Website of the European Commission, Social Affairs and Equal Opportunities, available at: http://ec.europa.eu/employment_social/spsi/joint_reports_en.htm (accessed at 14 November 2010). 69 See for a summary of the EC law on anti-discrimination, Rust, U. and J. Falke (eds) (2007), AGG Allgemeines Gleichbehandlungsgesetz mit weiterführenden Vorschriften; Kommentar, Berlin: Schmidt, p.198. Hans-W. Micklitz 18 Fundamental Rights 70 . It plays a prominent, though highly contested role 71 , in the ACQP and the DCFR. 72 The Mangold judgment 73 has raised a highly controversial debate on whether EU law knows a self-standing binding general principle of anti-discrimination, and whether such a principle is not only applicable vertically in citizen state relations, but also horizontally in citizen-to-citizen relationships. In its broadest reading, the Mangold doctrine lies at the heart of the (a) European principle of access justice/Zugangsgerechtigkeit as it would allow to guarantee access of EU workers to the labour market, access of EU consumers to the consumer market and access of EU citizens to all sorts of services, so long as they come under the scope of the EU law. Kücükdevici seems to grant horizontal direct effect to the Charter of Fundamental Rights. 74 If such a principle is enshrined in EU law, Mangold and Kücükdevici could serve as a tool for overriding the reservations of the UK, Poland and the Czech Republic against the integration of the Charter of Fundamental Rights into Union law. A new, though related battlefield has come up in Test Achats. 75 The more general question concerns what extent secondary community law can be submitted to a compliance test with the Charter of Fundamental Rights governed by access justice/Zugangsgerechtigkeit as the overall horizontal yardstick. In Bosman, 76 Angonese, 77 Viking, 78 Laval, and Olympique Marseille 79 the ECJ recognised the direct applicability of Art. 39 (Art. 45 TFEU) concerning the freedom of movement for workers, freedom of establishment in Viking Art. 43 (Art. 49 TFEU) and freedom of services in Laval, Art. 49 (Art. 56 TFEU). The ECJ has transgressed the boundaries between the public/private law divide and even turned vertical direct effect into a limited horizontal direct effect. 80 The worker is confronted with collective agreements that bear a quasi statutory character and that restrict her legal position. The right of free movement of workers is used so as to strike down collective private agreements that are either established by private organisations bearing a quasi statutory character (Bosman, Olympique Marseille) or by the states themselves (Angonese). Viking and Laval fit into that picture although the perspective is different. The parties fight for access against discriminating collective private agreements and the ECJ is granting access against the fierce opposition of trade associations and trade unions. 70 For a deeper analysis see Rust, U. and J. Falke (eds) (2007), AGG Allgemeines Gleichbehandlungsgesetz mit weiterführenden Vorschriften; Kommentar, Berlin: Schmidt, pp. 291 et seq and Basedow, J. (2008), ‘Grundsatz der Nichtdiskriminierung’, ZEuP, 230-248. 71 Säcker, F.J. (2006), ‘Vertragsfreiheit und Schutz vor Diskriminierung’, ZeuP, 1 and Basedow, J. (2008), ‘Grundsatz der Nichtdiskriminierung’, ZEuP, 230-248. 72 Art. 3:101 till 3:103 ACQP; II.-2:101 DCFR. 73 ECJ C-144/04 ECR 2005 I-9981; ECJ C-411/05 Palacios de la Villa, ECR 2007 I-8531. 74 (21) In that context, the Court has acknowledged the existence of a principle of non-discrimination on the grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold, paragraph 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne [1976] ECR 455, paragraph 54). (22) It should also (emphasis added H.-W. M.) be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the Charter, ‘[a]ny discrimination based on … age … shall be prohibited’ 75 Opinion of AG Kokott - Case C-236/09 avaiable at http://www.lex.unict.it/eurolabor/en/documentation/altridoc/conclusion/c236-09.pdf. (accessed 14 November 2010). 76 ECJ Case C-415/93, ECR I-4921. 77 ECJ Case C-281/98, ECR I-4139. 78 ECJ Case C-438/05, ECR I-10779. 79 Case C-325/08, OJ C 247, 27.9.2008. 80 Reich, N. (2010), ‘Rights without Duties’ to be published in the Yearbook of European Law, (forthcoming 2011), p. 60. Social Justice and Access Justice in Private Law 4.2.2. Consumer Law The development of consumer law was initiated outside the scope of the clear competence rules under the Rome Treaty in the early 1980s. The adoption of the Single European Act led to the new Article 100 a), today Art. 104 TFEU, which granted the EU the power to take legislative action to complete the Internal Market taking a ‘high level of consumer protection’ as the basis. To understand the link between the White Paper on the Completion of the Internal Market, the Single European Act and the rise of consumer law it is still worth reading the most influential Sutherland report. 81 That is the source from where the well-known rhetoric of ‘an integrated market needs confident consumers’ derives from. 82 The Maastricht Treaty brought a genuine competence which was complemented in the Treaty of Amsterdam and enshrined in the Lisbon Treaty. Art. 169 TFEU has, however, never gained importance. All relevant measures were based on Art. 104 TFEU. In hindsight, the Europeanisation of consumer legal policy occurred in three phases. The first is still dominated by the varying patterns of national social justice, the second points already to the development of a deviating European model of justice, which is then subject to further specification and hardening in the third phase. Co-ordination: The first phase was determined by a policy of coordination of different national models of justice which purported to root the social connotation into European private law. 83 This is characteristic for all initiatives taken between 1975 and 1985, i.e. before the rise of the Internal Market. From the three directives adopted during this time span, two, Directive 85/577/EEC on contracts concluded away from business premises and Directive 87/102/EEC, bore a strong national protective bias. It is the weak consumer who is the addressee of regulatory action. Depending on the various patterns, the regulatory action is more or less linked to considerations of social justice. Legislative activism: After 1986, the White paper on the Completion of the Internal Market and the adoption of the Single European Act, the European Commission was in a much stronger position. It needed ‘only’ the support of the majority of the Member States and it benefited from the new competence rule. 84 Within a couple of years the EU managed to get quite a number of directives through the legislative machinery, some that had been pending for years, for example, Directive 90/314/EEC on package tours, Directive 93/13 on unfair terms in consumer contracts, Directive 94/47/EC on time sharing, 97/7/EC on distance selling, Directive 98/27 on injunctions and Directive 99/44/EC on the sale of consumer goods. The link between the completion of the Internal Market and consumer protection, however, gradually changed the outlook of consumer law, its contents, its direction and its concept. The protective device of consumer policy lost priority to the benefit or the detriment – depending on the viewpoint – of the now emerging image of the responsible consumer who was to play a central role within the European integration process. 85 That is where the genuine model of justice in EU has its roots. EU consumer law is market behaviour law. 86 European consumer 81 The Internal Market After 1992 Meeting the Challenge, European Parliament Doc (SEC 92-final) 2277 (1992). 82 See on the confident consumer Weatherill, S. (1996), ‘The Evolution of European Consumer Law and Policy: From well Informed Consumer to Confident Consumer’, in H.-W. Micklitz (ed.), Rechtseinheit oder Rechtsvielfalt in Europa?, Baden-Baden: Nomos, p. 423. 83 Critical as regards the objectives of consumer law, Calliess, G.-P. (2003), ‘Nach der Schuldrechtsreform: Perspektiven des deutschen, europäischen und internationalen Verbrauchervertragsrechts’, 203, Archiv für die civilistische Praxis (AcP), p. 575. 84 Micklitz, H.-W. and S. Weatherill (1993), ‘Consumer Policy in the European Union: Before and after Maastricht’, Journal of Consumer Policy Special Issue, 16 (3-4), 285-321. 85 Critical as regards the alleged change of the paradigm, see Rösler, H. (2004), Europäisches Konsumentenvertragsrecht: Grundkonzeption, Prinzipien und Fortentwicklung, Thesis Marburg, p. 74. 86 Reich, N. (2006), ‘Protection of Consumers’ Economic Interests by EC Contract Law – Some Follow-up Remarks’, Sydney Law Review, 28 (1), 37-62, quite critical on such attempts, Wilhelmsson, T. (2008), ‘The Contract Law Acquis: Towards More Coherence Through Generalisation?’, Europäischer Juristentag, 4 (1), 111-145. Hans-W. Micklitz 20 law is more and more turning into a consumer law without – or to put it in more cautious terms – with a less determined social protective outlook. The European ideal is the European consumer who shops across border in a relaxed though attentive and self-responsible manner. 87 Striving for hegemony: The third phase is linked to the policy shift initiated by the Lisbon Council that was hammered out in the 2002 consumer strategy. Maximum harmonisation ranks high on the European Commission’s political agenda. So far, it seems as if the European Commission has succeeded in transforming minimum standards into maximum rules in particular economic sectors. However, it has not managed to establish full harmonisation in legal fields which cut across various markets and sectors of the economy. Directive 2002/65/EC on distant selling of financial services constituted the break through in the realisation of the new paradigm. In a methodically interesting approach, of combining elements of Directive 2001/95/EC on general product safety, Directive 2005/29/EC on unfair commercial practices, it purports to harmonise unfair commercial practices with respect to B2C relationships. 88 Last but not least, the adoption of Directive 2008/48/EC on consumer credit followed suit, after a hard and protracted fight on the full harmonisation appraoch. 89 Directive 2008/122/EC replaces Directive 94/47/EC on time sharing with an even more detailed set of fully harmonised rules. A revised proposal to fully harmonise package tours is underway. The European Commission presented a similar approach in its 2008 proposal on a Directive on Consumer Rights which is meant to substitute Directives 85/577/EEC on doorstep selling, 97/7/EC on distance selling, 93/13/EEC on unfair terms and 99/44/EC on consumer sales. 90 However, it seems as if the European Commission has run into a deadlock situation. What does full harmonisation mean with regard to the separation of powers between the Member States and the EU in consumer law? 91 In what way does full harmonisation affect the dividing line between national protective concepts of justice and the EU model which puts emphasis on market behaviour and on a consumer who is circumspect and responsible? Full harmonisation takes away powers from the Member States. The hidden consensus between the European Commission and the Member States, which boosted the adoption of minimum protection standards in the aftermath of the Internal Market programme, has collapsed, not silently, but publicly (though widely unnoticed) in the Consumer Strategy 2002. The overall target formulated in the Lisbon Council to make the EU the most competitive market world-wide might bring about a major change in consumer policy and law, one which documents the end of the philosophy behind the Internal Market and the idea of the circumspect and responsible consumer. 92 The new consumer leitbild is the economically efficient consumer which has to operate no longer merely in European but in an international environment. 87 Heiderhoff, B. (2004), ‘Grundstrukturen des nationalen und europäischen Verbrauchervertrags-rechts, insbesondere zur Reichweite europäischer Auslegung’, Habilitation- München, pp. 289, 423. 88 Howells, G. and H.-W. Micklitz and T. Wilhelmsson (2006), European Fair Trading Law – The Unfair Commercial Practices Directive, Aldershot: Ashgate. 89 See Micklitz, H.-W. and P. Rott and L. Tichy (2007), Impact assessment of the revised proposal on consumer credit on the Member States legislation in Czech Republic, Germany and the United Kingdom, MS January 2007. 90 Commission of the European Communities. Proposals for Directive of the European Parliament and of the Council on Consumer Rights, COM (2008) 614 final; Micklitz, H.-W. and N. Reich (2009), “Crónica de una muerte anunciada: The Commission Proposal for a ‘Directive on Consumer Rights’ ”, Common Market Law Review, 46 (2), 471-519. 91 Weatherill, S. (2005), ‘Minimum Harmonisation as Oxymoron? The Case of Consumer Law,’ in H.-W. Micklitz (ed.), Verbraucherrecht in Deutschland – Stand und Perspektiven, VIEW Schriftenreihe, Band 20, p. 15 and Wilhelmsson, T. (2005), ‘European Consumer Law: Theses on the Task of the Member States’, in H.- W. Micklitz (ed.), Verbraucherrecht in Deutschland – Stand und Perspektiven, VIEW Schriftenreihe, Band 20, p. 37. 92 Micklitz, H.-W. (2009), ‘Jack is out-of the Box - The efficient Consumer-Shopper’, in T. Wihelmsson and. J. Bärlund, Festschrift, JFT 3–4, 417–436. Social Justice and Access Justice in Private Law The current situation: I started from the premise that ‘access justice/Zugangsgerechtigkeit’ might become the new paradigm of EU private law. Full harmonisation, however, brings a new dimension into EU consumer policy in that the question arises of who should deal with the protection of those consumers who do not met the efficiency doctrine. The Member States are barred from taking action in fully harmonised fields of EU private law. In a legalistic perspective, they are free to take action only in partially harmonised areas. It might then be for the EU to develop a social model in private law matters outside the dominating patterns of the efficient consumer/worker who may expect no more than ‘rough justice’, but a consumer/worker who even claims ‘social justice’. Can the EU rules on services of general economic interest serve as a fall back position? 93 Or will the Member States have to take the responsibility back for the protection of the weaker parties? Much will depend on the future of the full-harmonisation principle. 5. The European Model on Access Justice The EU model cannot be reduced to a formal libertarian concept of justice where the state is denied the right to forcibly redistribute wealth from one individual or group to another. I have shown in my analysis of the economic, social and political determinants that European labour, anti-discrimination and consumer law escape the polarisation between social distributive justice and allocative (libertarian) justice. What I want to show now is what this new pattern of European justice looks like. I will first try to locate the European concept of justice. It lies somewhere between social distributive and libertarian allocative justice. I will then look into the constitutive elements of access justice/Zugangsgerechtigkeit ‘access rights’ and ‘anti-discrimination’. I will limit myself to laying down the ground for discussion. The concrete legal implications of such a principle remain to be elaborated. 5.1. Social Distribute, Access Justice and Allocative Libertarian Justice Firstly, access justice differs from national protective concepts in that it does not aim at social protection in a redistributive perspective. The addressees of the EU labour, anti-discrimination and consumer law are not so much or not primarily the ‘poor who pay more’ – or, to allude to the famous study of Caplovitz 94 , the black or women who have to pay more for a new car than white men 95 – but rather the dynamic, open-minded, flexible, well-informed, self-standing and self conscious mobile worker or consumer who is seeking the best job opportunities and the best prices on the market of consumer goods and services so as ‘to reap up the benefits of the internal market’. 96 The normative leitbild, which is dominating EU labour and consumer law making, requires this omnipotent market citizen needed for the completion of the Internal Market and for making the EU ‘the most competitive and most dynamic knowledge-based economy’ in the world. EU labour, anti-discrimination and consumer law contain normative concepts such as the vulnerable consumer in Directive 2005/29 on unfair commercial practices or in the field of services of general economic interests which seem to run counter to such a Leitbild and to indicate a more social justice orientated approach. The ECJ is hovering between more factual protective and more normative fictitious conceptions of the consumer/worker. Despite these social justice elements, which 93 Micklitz, H.-W. (2009), ‘The Targeted Full Harmonisation Approach: Looking behind The Curtain’, in G. Howells and R. Schulze (eds), Modernising and Harmonising Consumer Contract Law, Munich: Sellier European Law Publishers, p. 47. 94 Caplovitz, D. (1967), The Poor Pay More, New York: Free Press. 95 As, Ayres, L. (1991), ‘Fair driving: Gender and Race Discrimination in Retail Car Negotiations’, Harvard Law Review, 104 (4), 817-871. 96 COM (2008) 614 final, p. 2. Hans-W. Micklitz 22 undoubtedly exist, I would, however, stress that the dominating Leitbild, the dominating normative construct in EU labour, anti-discrimination and consumer law is very much the normatively instrumentalised caricature of the real life world. It is the result of a market driven European ‘integration through (regulatory) law’. This understanding is far away from the starting point of social policies in the sixties and seventies, perhaps not so much from the changing patterns in the legal systems, but from political programmes of social welfare orientated Member States and even from early initiatives of the European Commission in the 1970s. The new modes of governance, so amply favoured by the European Commission in non-harmonised areas of EU labour law so as to foster social inclusion of those workers who incapable of keeping pace with the changing labour market, have no counterpart in consumer law. It does not even exist in areas such as services of general economic interests where the link to the OMC could easily be built to handle the situation of those customers who are excluded from basic services. OMC could serve, in theory, to approximate the different policies of the Member States and to define best practices concerning the protection of the vulnerable. 97 It has to be recalled that the regulatory mechanism established by the European Commission to design the ACQP and the DCFR resemble much more the New Approach on Technical Standards than the OMC which was promoted in the academic environment as an appropriate tool for the codification project. 98 That is why EU labour, anti- discrimination and consumer law are definitely and purposively different from national welfare state inspired protective concepts of the weaker parts of society. Secondly, the EU concept of justice differs from allocative libertarian concepts of justice, as EU labour, anti-discrimination and consumer law is in substance regulatory law which restricts not only the exercise of the market freedoms but also the private autonomy of parties to a labour and a consumer contract. None of the Treaty amendments and none of the secondary rules are inspired and guided by the idea that it is a prominent task for the European Union to establish and to ensure a European principle of freedom of contract and private autonomy. The ECJ has read such a principle into the four market freedoms. 99 The legal paradigm of EU law making via the Treaty and via secondary law, however, is regulatory law, this means regulated autonomy. The EU is transforming private law rules ‘from autonomy to functionalism in competition and regulation’. I have laid down my understanding of the role and function of European private law elsewhere. 100 EU regulatory labour and consumer law uses mandatory contract law rules as a device to achieve particular policy purposes which might be sector related or, as is the case in labour, anti-discrimination and consumer law, subject and sector related. All these mandatory EU rules on labour, anti- discrimination and consumer law are guided by one and the same philosophy, they are meant to bring the consumer and the worker into a legal position where she or he is equipped with the necessary set of rights so as to participate and reap the benefits of the Internal Market and the most competitive economy. EU regulatory law starts from the premise that a European Economic Constitution, based on the four market freedoms and competition law does not produce the necessary results by itself. 97 Bartl, M. (2010), ‘The Affordability of Energy. How much protection for the vulnerable consumer?’ Journal of Consumer Policy, 33 (2), 225-245; Neergard, U. (2008), ‘Services of General (Economic) Interest and the Services Directive -What Is Left Out, Why and Where to Go?’, in Neergard, U. and R. Nielsen and R.M. Roseberg (eds), The Services Directive, Consequences for the Welfare State in the European Social Model, Copenhagen: DJOF Publishing, p.65. 98 van Gerven, W. (2006), ‘Needed: A Method of Convergence for Private Law’, in A. Furrer (ed.), Europäisches Privatrecht, p. 437, on the parallel between the new approach and the making of the DCFR see Micklitz, H.-W. (2007), ‘(Selbst)-Reflektionen über die wissenschaftlichen Ansätze zur Vorbereitung einer europäischen Vertragsrechtskodifikation’, GPR Zeitschrift für Gemeinschaftsprivatrecht, p. 2. 99 See most recently, Basedow, J. (2007), ‘Party Autonomy in the Private International Law of Contracts’, European Review of Private Law, 15, 891. 100 I have developed this concept in H.-W. Micklitz (2009), ‘The Visible Hand of European Private Law’, in P. Eeckhout and T. Tridimas (eds.) (2010), Yearbook of European Law, 28, 3-60. Social Justice and Access Justice in Private Law Additional tools are needed to guarantee access to the market. This is exactly what the Lisbon Council, and since then various documents of the European Commission, mean when they constantly reiterate the formula of ‘reaping the benefits of the internal market’. Participation in and access to the internal market legitimises the adoption of mandatory EU labour, anti-discrimination and consumer law rules. Thirdly, the EU model of justice cannot and will not be equated with social justice, emanating from the workers’ movement that has developed in the 20th century. Nor will it be seen as a libertarian concept of justice where there is no statutory responsibility for the distribution of wealth between members of the society. So what is it then positively speaking? In German it would be Zugangsgerechtigkeit which literally means access justice. I found the term first in a document of the German Catholic Church which was prepared by eminent German academics as a response to the plea for transforming the German welfare state. Access justice alludes to the concept of ‘equity’ in the Common law system, not so much in its origins but in its content. Equity was meant to compensate for the deficiencies which resulted from the narrow and formalised rules on writs which restricted access to common law, whereas the regulatory law counterbalances the market freedoms. They share, however, the conviction that a legal system cannot be based on libertarian allocative concepts and that an element of ‘Billigkeit’ – equity – is needed that counterbalances such model. The EU legal system was originally designed as an international treaty before the ECJ transformed the Rome Treaty into a genuine legal order based on enforceable rights. EU regulatory labour and consumer law, right from its beginning and with constant support from the ECJ, could be understood not only as integrating a social dimension into the market based project of European integration, but also to make sure that those who should benefit from the mandatory rules are also given access to the legal system. In this sense, access justice contains two elements, first breaking down the barriers which limit participation and access and second strengthening the position of consumers and workers with a view to enforcing their rights. With regard to the first category, access justice would require that all market participants, including consumers, must have a fair and realistic chance to enter the market, consume its products and use its services, as well as reaping the benefits of the market. Access justice in the second sense relates to the degree of justice the individual might gain after he or she has been granted access. Rights are useless if they cannot be enforced. The ECJ is strongly advocating for judicial protection as now enshrined in Art. 47 of the Charter of Fundamental Rights. The EU is promoting, not only in the field of labour, anti-discrimination and consumer law, conflict resolution via mediation and dispute settlement outside courts. 101 In sum: access justice means more than a formal guarantee to workers and consumers that they may have a theoretical chance in participating in the market and reaping the benefits of the market. This would be justice in the meaning of the libertarian concept. Access justice in the meaning of Max Weber, quite to the contrary, materialises the equity doctrine. The legal system is responsible for establishing tools which transform the theoretical chance into a realistic opportunity, thereby eliminating all sorts of barriers which hinder the assertion of the claim to access. This requires further deepening. 5.2. The Two Constitute Elements: Access Rights and Anti-Discrimination Rights There are two major identifiable constitutive elements in which the European model of justice becomes visible: access ‘rights’ and non-discrimination ‘rights’. Both elements cut across labour and consumer law. They appear in labour and consumer law in different legal forms and different connotations, as ‘Leitnormen’ in the Lisbon Treaty, as part of the Charter of Fundamental Rights, in 101 See ECJ, 18.3.2010, Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08 Alassini, ECR (2010) I- nyr. From a consumer point of view see Reich, N. in H.-W. Micklitz and P. Rott and N. Reich (2009), Understanding EU Consumer Law, Intersentia, § 8, p. 341. Hans-W. Micklitz 24 EU directives, recitals and recommendations. In its most outspoken form, they may grant individually enforceable rights, 102 vertically in consumer-worker state relationships, horizontally in consumer- worker private supplier-employer relationships, at least as long as the other party to the contract is tying the consumer-worker to collective private agreements which bear a quasi statutory character. In a less developed form, the so-called rights may formulate policy guidelines or mere policy objectives which could and should nevertheless be taken into account by the courts in the interpretation of the respective provisions that lie at the heart of the conflict. 103 The perspective I take is a private law perspective, meaning that I investigate the horizontal dimension of the two constitute principles, in order to design the possible impact on private law relations. 5.2.1. Specific Access Rights in Labour, Anti-Discrimination and Consumer Law In private law relations, the subjective rights inbuilt into the market freedoms as interpreted by the ECJ are paving the way for being granted access against discriminating collective private agreements. There are limits to this case-law since the ECJ does not submit collective private agreements to the scope of application of the four market freedoms. Otherwise, the logic of judicial control in unfair terms would have to be reconsidered. Herein there is a prominent field of collective private agreements that could easily be brought into the perspective of Bosman, Angonese, Olympique Marseille, Viking and Laval. But such an understanding would submit private law as such under the market freedom, a decision the ECJ refused to take in Alsthom Atlantique 104 and CMC Motorradcenter 105 . The Charter of Fundamental Rights does not contain an overall rule which grants access. However, there are bits and pieces in the Charter that can be broken down into the categories of labour and consumer law. Methodologically speaking, the Leitnormen of the Charter, the individually or collectively enforceable rights enshrined in the Charter, the policy objectives laid down in the Charter and the rights and objectives concretised in secondary Community law must be read and interpreted together. More recent EU regulations and directives refer, in their recitals, to the Charter of Fundamental Rights so as to ensure compliance of secondary Community law with the Charter. This is a most visible expression of the ongoing constitutionalisation process of private law relations. 106 (1) Labour: The Lisbon Treaty introduces a new Art. 2 which lays down a set of values common to the Member States: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non- discrimination, tolerance, justice, solidarity and equality between women and men prevail. 102 I will not discuss the horizontal effect of these rights, as this would reach beyond the purpose of the paper. 103 See Kosta, V. (forthcoming 2010), ‘Internal Market Legislation and the Private Law of the Member States. The Impact of Fundamental Rights’, to be published in European Review of Contract Law. 104 ECJ C-339/89 ECR I–107. 105 ECJ C-93/92 ECR I-5009. 106 There is an abundant literature on this issue, see Brüggemeier G. and A. Ciacchi and G. Comandé (eds.) (2010), Fundamental Rights and Private Law in Europe, 1, Cambridge: Cambridge University Press; Brüggemeier G. and A. Ciacchi and G. Comandé (eds.) (2010), Fundamental Rights and Private Law in Europe, 2, Cambridge: Cambridge University Press; Cherednychenko, O. (2008), Fundament Rights, Contract Law and the Protection of the Weaker Party: A Comparative Analysis of the Constitutionalisation of the Contract Law with Emphasis on Risky Financial Transactions, doctoral dissertation – Utrecht University; Mak, Ch. (2008), Fundamental Rights in European Contract Law. A Comparision of the Impact of Fundamental Rights on Contractual Relationships in Germany, the Netherlands, Italy and England, Alphen aan den Rijin: Kluwer Law International. Social Justice and Access Justice in Private Law These values are not fully concretised in the established legal order. Therefore Art. 2 must be read as a Leitnorm, of no direct legal consequences. However, Art. 2, read together with the various articles of the EU Charter, might allow for the grounding of a European concept of justice on weighing social rights, e.g. those of workers and consumers balanced against the supplier’s right to market his or her products and services freely in and throughout the Internal Market. Chapter II formulates in Art. 14 the right to education and in Art. 15 the freedom to choose an occupation and the right to engage in work. Chapter IV defines, under the heading of solidarity, a whole set of rights, in particular Art. 27 (information and consultation), Art. 28 (collective bargaining), Art. 29 (access to placement services), Art. 30 (unjustified dismissal), Art. 31 (fair and just working conditions) and Art. 34 (social security). Access in labour law takes different forms, although there is at first sight a parallel to the services of general economic interests taking a broad understanding, i.e. under inclusion of financial and digital services. Since 1975, the EU has established a long standing policy to establish regulatory means which are aimed at keeping those workers in business who are in a more vulnerable position due to their particular personal circumstances, such as pregnant woman, parents, young people and part-time workers. However, in particular those measures taken under the Social Policy Agreement adopted under the Maastricht Protocol are reaching far beyond particular groups of workers and rather formulate access conditions for worker representation as well as for posting workers outside the home country. (2) consumers: Art. 38 of the Charter of Fundamental Rights requires that Union policy ensures a high level of protection. Individually enforceable rights cannot be deduced from Art. 38 of the Charter. The set of rights granted to consumers lag behind those granted to workers. Art. 35 (health care) and Art. 36 (access to services of general interests) provide for more specific protection in selected areas of consumer policy. The Treaty contains, in Art. 169 TFEU, elements of a ‘right to information’ 107 and a ‘right to establish consumer organisations’, although these rights have to be given shape via secondary community law in order to be understood as individual, maybe even enforceable, consumer rights. The most prominent feature in the Charter related to ‘access’ is to be found in Art. 36 which links access rights to the rather opaque concept of services of general economic interests: The Union recognises and respects access to services of general economic interests as provided for in national laws and practices, in accordance with the Treaty establishing the European Union, in order to promote the social and territorial cohesion of the Union. Art. 36 of the Charter is not meant to grant individual rights, at least not according to the majority of academic opinion. 108 Art. 36 of the Charter should, however, be read together with secondary legislation in the field of telecommunication, postal services, electricity, gas and transport, just to name those services which clearly come under the category of services of general economic interest. Legal doctrine argues that the respective directives are all united in the idea that the new consumer should and must have access to the new competitive market and that access must be understood as an individually enforceable right. 109 In Sabatauskas 110 , the ECJ did not decide on the right of access of 107 Radeideh, M. (2005), Fair Trading in EU Law – Information and Consumer Choice in the Internal Market, Groningen: Europa Law Publishing. 108 Regarding the interpretation of this provision and its doctrinal qualification see the contribution of Baquero Cruz in de Búrca, Gráinne (ed.) (2005), EU Law and the Welfare State: In Search of Solidarity, Oxford: Oxford University Press, pp. 169 and 178. 109 Rott, P. (2005), ‘A new Social Contract Law for Public Services? – Consequences from Regulation of Services of General Economic Interests in the EC’, European Review of Contract Law, 1 (3), 323-345; Willet, C. (2008), ‘General Clauses on Fairness and the Promotion of Values Important in Services of General Interest’, in C. Twigg-Flesner and D. Parry and G. Howells and A. Nordhausen (eds.) (2008), in Yearbook of Consumer Law, p. 67. Hans-W. Micklitz 26 consumers to the Energy market. 111 Reading both the Charter and the respective directives together justifies the existence of an enforceable right of access to services of general economic interest. The addressee of such an individually enforceable right, however, would not be the supplier of the services of general economic interests but rather the respective Member State who is under an obligation to implement the directives in light of the Charter in a way that the customer is granted subjective enforceable rights. The missing horizontal direct effect has been subject to concern in academic circles for quite some time. The problematic effects of the existence of EU rights which can not be enforced against the correct addressee has been termed by N. Reich ‘Rights without Duties’ 112 . The Charter sheds new light on an old debate as is so amply demonstrated by the ECJ in Mangold and Kücükdevici. There is another equally difficult question pending. Can the right to access under Art. 36 be extended beyond the notion of services of general economic interest to the field of financial 113 and digital services 114 , to all those services on which the consumer-worker-citizen depends on today, economically and socially? From a doctrinal point of view, there is a huge gap in policy statements, like that in the 2000 Lisbon Council conclusions which builds concrete links beyond the SGEI stating that citizens may not be excluded from the benefits of the information society and that financial illiteracy should be combated. These announcements are neither reflected in the set of EU directives and regulations which govern the field of financial and digital services, nor in the Charter. The most concrete step the European Commission has taken comes from the field of financial services where the consumer shall be given a right to a bank account. However, the document has no binding legal effects. Again the Charter might allow for hardening soft law means. These types of services serve as perfect examples to demonstrate the difference between formal libertarian and materialised access under EU law. The simple chance to have access exists for particular groups of persons often only in theory. Materialised access requires more, it requests regulatory mechanisms which transform the theoretical normative opportunity into a realistic concrete perspective. The result of materialised access is not to be confounded with social justice. Social justice is result orientated. The outcome is what counts in order to be able to assess whether the result is just or not. Materialised access is less result orientated. It only establishes fair and non discriminatory access conditions. 5.2.2. The Horizontal Dimension of Anti-Discrimination The second constitutive element – anti-discrimination – is even wider spread and more deeply anchored in the Treaty, in the Charter and in secondary consumer and labour law rules. Contrary to access, which bears a positive, anti-discrimination bears a negative message. EU law prohibits various forms of discrimination, unequal payment in the Treaty for example and, since 2000, a wide variety of discriminatory practices related to the labour market but also practices which are not related to the (Contd.) 110 See on the right to access under Art. 20 of Directive 2003/54 in particular with regard to the right of access to universal services, ECJ C-239/07 Julius Sabatauskas, at 47, AG Kokott at 35, 38, nyr, with annotation Pirstner-Ebner, EuZW 2009, 15, 16 under 4. 111 See Rott, P. (2005), ‘A new Social Contract Law for Public Services? – Consequences from Regulation of Services of General Economic Interests in the EC’, European Review of Contract Law, 1 (3), 342. 112 Reich, N. (2010), ‘The public/private divide in European law’, in H.-M. Micklitz, and F. Cafaggi (eds.), European Private Law after the Common Frame of Reference, Cheltenham: Edward Elgar Publishing, p. 56. 113 Wilhelmsson, T. (2003), ‘Services of general interests and European Private law,’ in C. E. Rickett and T.G.W. Telfer (eds.), International Perspectives on Consumers’ Access to Justice, Cambridge: Cambridge University Press, p. 149. 114 Micklitz, H.-W. and A. Oehler (2007), Consumer Policy in the Digital World, Scientific Advisory Board for Consumer, Food, and Nutrition Policies to the Federal Ministry of Consumer Protection, Food, and Agriculture, Germany, Berlin. Social Justice and Access Justice in Private Law labour market. The EU Charter deals extensively with non-discrimination in Art. 21, even in more detail than in the four Directives. The set of four Directives adopted in the aftermath of the Treaty of Amsterdam on the basis of Art. 13 (Art. 19 TFEU) and Art. 141 (3) (Art. 157 TFEU) extend the EU anti-discrimination rules beyond equal pay and equal access to employment to race and ethnic origin and – what is even more important in the context of the emerging EU model on justice – they establish anti-discrimination rules which are applicable outside the labour market in private law relations in the access to and the supply of goods and services. The so far academic debate turns, to a large extent, around the question on what kind of model of justice the anti-discrimination rules stand for. The debate gained pace through the insertion of the anti-discrimination principle into the ACQR and the DCFR. 115 I will borrow from Basedow 116 the distinction between integration motivated anti-discrimination verdicts and societal policy motivated anti-discrimination verdicts. This fits into the distinction between allocative libertarian and access justice/Zugangsgerechtigkeiten. Integration motivated anti- discrimination rules can be found in the above mentioned rules on regulated markets. The addressees of the anti-discrimination rules are Member States, regulatory authorities and the different economic actors. From a consumer/customer perspective they may be broken down in a) those indirectly affecting consumers and b) directly affecting them. Under the first category, we can note rules to ensure non-discriminatory access to the net, non-discriminatory tariffs for access to the network and rules meant to prohibit any form of non-discrimination between the different economic operators. Under the second category, particular rules on non-discriminatory treatment within the framework of universal service obligations can be noted. The societal policy motivated verdicts are of direct concern to workers and consumers. The basic philosophy of the non-discrimination rules has been developed by the ECJ within the framework of the Rome Treaty as accomplished by the two directives on equal pay and equal access to work. After a series of judgments where the ECJ was ready to give a broad reading to the notion of ‘pay’, in Smith v. Advel Systems 117 the ECJ rejected any attempt to use the Treaty provisions for levelling up equal pay. All that the Treaty requires is equal treatment of men and women, but not equal treatment at an equally high level. In the case at issue, EU law did not prevent the employer from raising the retirement age of women to that of men. This message can be transferred to all sorts of discrimination between men and women. 118 The EU rules on anti-discrimination allow for the establishment of equal access conditions, but the very same rules cannot be used to establish equal standards for men and women at the most favourable level. Those reading into the EU rules regarding standards of substantive justice in a redistributive meaning advocate for an EU model of justice which reaches beyond access justice. It might very well be that the proponents of such an interpretation will suffer from a renewed setback once the ECJ has to decide on the choice between social distributive and access justice. Such an understanding would not comply with Smith v. Advel and others, but it would be coherent with the philosophy of EU regulatory law. As the four Directives establish, only minimum standards would therefore remain for the Member States to decide whether they want to go beyond access justice within the national rules implementing the Directives. 115 Art. 3:101 to 3:103 ACQR and II.-2:01 to II.-2:103 DCFR. 116 Basedow, J. (2008), ‘Grundsatz der Nichtdiskriminierung,’ ZEuP, 237. 117 ECJ Case-408/92 ECR I-4435. 118 See Micklitz, H.-W. (2005), The Politics of Judicial Co-operation in the EU – the Case of Sunday trading, Equal Treatment and Good Faith, New York: Cambridge University Press, pp. 182 and 188 with reference to the ECJ case law. Hans-W. Micklitz 28 Bibliography Adomeit, K. and H. Marcuse (2004), ‘Der Verbraucherschutz und das BGB’, Neue Juristische Wochenschrift, 579, 827-838. Adomeit, K. (1994), ‘Die gestörte Vertragsparität – ein Trugbild’, Neue Juristische Wochenschrift, 2467. Arendt, H. (1963), On Revolution, London: Penguin Books. Ayres, L. (1991), ‘Fair driving: Gender and Race Discrimination in Retail Car Negotiations’, Harvard Law Review, 104 (4), 817-871. Bartl, M. (2010), ‘The Affordability of Energy. How much protection for the vulnerable consumer?’, Journal of Consumer Policy, 33 (2), 225-245. Basedow, J. (2008), ‘Grundsatz der Nichtdiskriminierung’, ZEuP, 230-251. Basedow, J. (2007), ‘Party Autonomy in the Private International Law of Contracts’, European Review of Private Law, 15, 891. Bentham, J. [1798] (1907), An introduction to the principles of morals and legislation, Oxford: Clarendon Press. Berman, H.J. (1991), Recht und Revolution. Die Bildung der westlichen Rechtstradition, Frankfurt. Brüggemeier, G. (1977), Entwicklung des Rechts im organisierten Kapitalismus, Band 1: Von der Gründerzeit zur Weimarer Republik; (1979), Band 2: Vom Faschismus bis zur Gegenwart, Frankfurt: Sindicat. Calais-Auloy, J. (1984), ‘Collectively Negotiated Agreements: Proposed Reforms in France’, Journal of Consumer Policy, 7 (2), 115-123. Calliess, G.-W. and M. Renner (2009), ‘Between Law and Social Norms: The Evolution of Global Governance’, Ratio Juris, 22 (2), 260-280. Calliess, G.-P. (2003), ‘Nach der Schuldrechtsreform: Perspektiven des deutschen, europäischen und internationalen Verbrauchervertragsrechts’, 203, Archiv für die civilistische Praxis (AcP). Caplovitz, D. (1967), The Poor Pay More, New York: Free Press. Cartwright, J. and S. Vogenauer and S. Whittaker (eds) (2009), Reforming the French Law of Obligations, England: Hart Publishing. Cherednychenko, O. (2008), Fundament Rights, Contract Law and the Protection of the Weaker Party: A Comparative Analysis of the Constitutionalisation of the Contract Law with Emphasis on Risky Financial Transactions, doctoral dissertation – Utrecht University. Collins, H. (2009), ‘Lord Hoffmann and the Common Law of Contract’, European Review of Contract Law, 5 (4), 474-484. Countouris, N. (2009), ‘European Social Law as an Autonomous Legal Discipline,’ in P. Eeckhout and T. Tridimas (eds) (2009), Yearbook of European Law, 28, Oxford: Clarendon Press. Deakin, S. (2008), ‘Regulatory Competition after Laval’, Cambridge Yearbook of European Legal Studies, 10 (10), 581-610. de Búrca, Gráinne (ed.) (2005), EU Law and the Welfare State: In Search of Solidarity, Oxford: Oxford University Press. Social Justice and Access Justice in Private Law Dougan, M. (2009), ‘Minimum Harmonisation after Tobacco Advertising and Laval Un Partneri’, in M. Bulterman and L. Hancher and A. McDonnell and H. Sevenster (eds.), Views of European Law from the Mountain: Liber Amicorum Piet Jan Slot. Kluwer Law International. Eichengreen, B. (2007), The European Economy since 1945: Co-ordinateed Capitalism and Beyond, Princeton: Princeton University Press, NJF. Fauvarque-Cosson, B. and D. Mazeaud (ed.) (2008), European Contract Law: Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules, Munich: Sellier European Law Publishers. Flume, W. (2000), ‘Vom Beruf unserer Zeit für die Gesetzgebung’, Zeitschrift für Wirtschaftsrecht, 1727. Goode, R. (2001), ‘Insularity or Leadership? The Role of the United Kingdom in the Harmonisation of Commercial Law’, International and Comparative Law Quarterly, 50 (4), 751. Haar, B. and P. Copeland (2010), ‘What are the Future Prospects for the European Social Model?’, European Law Journal, 16 (3), 273-291. Haupt, H.-G. (1995), ‘Sozialpolitik und ihre gesellschaftlichen Grenzen in Frankreich vor 1914’, Jahrbuch für Wirtschaftsgeschichte, p. 171. Heiderhoff, B. (2004), Grundstrukturen des nationalen und europäischen Verbrauchervertrags-rechts, insbesondere zur Reichweite europäischer Auslegung, Habilitation- München. Hesselink, M.W. (2008), ‘CFR & social justice: a short study for the European Parliament on the values underlying the draft common frame of reference for European private law: what roles for fairness and social justice?, Centre for the Study of European Contract Law Working Paper Series No. 2008/04. Howells, G. and H.-W. Micklitz and T. Wilhelmsson (2006), European Fair Trading Law – The Unfair Commercial Practices Directive, Aldershot: Ashgate. Howells, G. and Weatherill, S. (2005), Consumer Protection Law, England: Ashgate Aldershot. James, L. (1994), The Rise and the Fall of the British Empire, London: Abacus. Kennedy, D. (2006) ‘Three Globalizations of Law and Legal Thought: 1850-2000’, in D. Kennedy, The New Law and Economic Development, Cambridge University Press. Kennedy, D. (2003), ‘Two Globalizations of Law & Legal Thought: 1850-1968’, Suffolk University Law Review, 36 (3), 631-679. Keßler, J. and H.-W. Micklitz (2008), ‘Kundenschutz auf den liberalisierten Märkten – Vergleich der Konzepte, Maßnahmen und Wirkungen in Europa – Personenverkehr/Eisenbahn,’ VIEW Schriftenreihe, Band 24. Keßler, J. and H.-W. Micklitz (2008), ‘Kundenschutz auf den liberalisierten Märkten – Vergleich der Konzepte, Maßnahmen und Wirkungen in Europa – Telekommunikation’, VIEW Schriftenreihe, Band 25. Kiesow, R.M. (2010), ‘Rechtswissenschaft – was ist das?’ JuristenZeitung, 586. Koopmans, T. (1991), ‘The Birth of European Law at the Cross Roads of Legal Traditions’, The American Journal of Comparative Law, 39 (3), 493. Kosta, V. (forthcoming 2010), ‘Internal Market Legislation and the Private Law of the Member States. The Impact of Fundamental Rights' to be published in European Review of Contract Law. Lord R. Goff (1997), ‘The Future of the Common Law’, International and Comparative Law Quarterly, 46 (4), 745. Hans-W. Micklitz 30 Mak, Ch. (2008), Fundamental Rights in European Contract Law. A Comparision of the Impact of Fundamental Rights on Contractual Relationships in Germany, the Netherlands, Italy and England, Alphen aan den Rijin: Kluwer Law International. Marella, M.R. (2006), ‘The Old and the New Limits to Freedom of Contract in Europe’, European Review of Contract Law, 2 (2), 264. Markesinis, B.S. (1994), ‘Learning from Europe and Learning in Europe’, in B. S. Markesinis (ed.), The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century, p.1. Micklitz, H.-W. and F. Cafaggi (eds) (2010), The European Private Law after the Common Frame of References, Cheltenham: Edward Elgar Publishing. Micklitz, H.-W. (2009), ‘The Visible Hand of European Private Law’, in P. Eeckhout and T. Tridimas (eds) (2010), Yearbook of European Law, 29, 3-60. Micklitz, H.-W. and N. Reich (2009), “Crónica de una muerte anunciada: The Commission Proposal for a ‘Directive on Consumer Rights’ ”, Common Market Law Review, 46 (2), 471-519. Micklitz, H.-W. (2009), ‘Jack is out-of the Box - The efficient Consumer-Shopper’, in Wihelmsson, T. and J. Bärlund, Festschrift, JFT 3–4, 417–436. Micklitz, H.-W. (2009), ‘The Targeted Full Harmonisation Approach: Looking behind The Curtain’, in G. Howells and R. Schulze (eds), Modernising and Harmonising Consumer Contract Law, p. 47. Micklitz H.-W. and T. Roethe (2008), ‘ProdEnglandtsicherheit und Marktüberwachung im Ostseeraum – Rechtsrahmen und Vollzugspraxis’, VIEW Schriftenreihe, 26. Micklitz, H.-W. and P. Rott and L. Tichy (2007), Impact assessment of the revised proposal on consumer credit on the Member States legislation in Czech Republic, Germany and the United Kingdom, MS January 2007. Micklitz, H.-W. and A. Oehler (2007), Consumer Policy in the Digital World, Scientific Advisory Board for Consumer, Food, and Nutrition Policies to the Federal Ministry of Consumer Protection, Food, and Agriculture, Germany, Berlin. Micklitz, H.-W. (2005), The Politics of Judicial Co-operation in the EU – the Case of Sunday trading, Equal Treatment and Good Faith, New York: Cambridge University Press. Micklitz, H.-W. and T. Roethe and S. Weatherill (eds) (1994), Federalism and Responsibility - A study on Product Safety Law and Practice in the European Community, London: Graham & Trotmann. Micklitz, H.-W. and S. Weatherill (1993), ‘Consumer Policy in the European Union: Before and after Maastricht’, Journal of Consumer Policy Special Issue, 16 (3-4), 285-321. Münch, R. (2008), Die Konstruktion der europäischen Gesellschaft: zur Dialektik von transnationaler Integration und nationaler Desintegration, Frankfurt/Main: Campus-Verl. Neergard, U. (2008), ‘Services of General (Economic) Interest and the Services Directive -What Is Left Out, Why and Where to Go?’, in U. Neergard and R. Nielsen and R.M. Roseberg (eds), The Services Directive, Consequences for the Welfare State in the European Social Model, p.65. Radeideh, M. (2005), Fair Trading in EU Law – Information and Consumer Choice in the Internal Market, Groningen: Europa Law Publishing. Ramm, T. (1986), ‘Epilogue: The New Ordering of Labour Law’, in B. Hepple (ed.) (1986) The Making of Labour Law in Europe. A comparative Study of Nine Countries up to 1945, London: Mansell Publishing. Raulff, U. (ed.) (1987), Mentalitätengeschichte. Zur historischen RekonstrUktion geistiger Prozesse, Berlin. Social Justice and Access Justice in Private Law Reich, N. (2010), ‘The public/private divide in European law’, in H.-M. Micklitz and F. Cafaggi (eds.), European Private Law after the Common Frame of Reference, p. 56. Reich, N. in H.-W. Micklitz and P. Rott and N. Reich (2009), Understanding EU Consumer Law, Intersentia. Reich, N. (2006), ‘Protection of Consumers’ Economic Interests by EC Contract Law – Some Follow- up Remarks’, Sydney Law Review, 28 (1), 37-62. Rödl, F. (2009), ‘Europäische Arbeitsverfassung’ to be published in A. Bogdandy (ed.), Europäisches Verfassungsrecht, 2. Auflage. Rösler, H. (2004), Europäisches Konsumentenvertragsrecht: Grundkonzeption, Prinzipien und Fortentwicklung, Thesis Marburg. Rott, P. (2005), ‘A new Social Contract Law for Public Services? – Consequences from Regulation of Services of General Economic Interests in the EC’, European Review of Contract Law, 1 (3), 323- 345. Rust, U. and J. Falke (eds) (2007), AGG Allgemeines Gleichbehandlungsgesetz mit weiterführenden Vorschriften; Kommentar, Berlin: Schmidt. Säcker, F.J (2006), ‘Vertragsfreiheit und Schutz vor Diskriminierung’, ZEuP, 1ff. Schepel, H. (2007), ‘The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law’, Law and Social Inquiry, 32 (1), 183-199. Schulin, E. (1969), Handelsstaat England. Das politische Interesse der Nation im Außenhandel vom 16. bis ins frühe 18. Jahrhundert, reprinted in The American Historical Review (1975), 80 (1), 107. Schulze, H. (1985), ‘Mentalitätsgeschichte – Chancen und Risiken eines Paradigmas der franzö- sischen Geschichtswissenschaft’, Geschichte in Wissenschaft und Unterricht, 36, 247-270. Social Justice Study Group (2004), ‘Social Justice in European Contract Law: A Manifesto’, European Law Journal, 10 (6), 653-674. Teubner, G. (1999-2000), Ein Fall von strUktureller Korruption? Die Familienbürgschaft in der Kollision unverträglicher Handlungslogiken, Kritische Vierteljahreszeitschrift für Gesetzgebung und Rechtswissenschaft. Thibaut, A.F.J. and F.C. v Savigny [1973] (2002), Ihre programmatischen Schriften, mit einer Einfüh- rung von Hans Hattenhauer, München. Schepel, H. (2007), ‘The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law’, Law and Social Inquiry, 32 (1), 183- 199. Schwintowski, H-P. (1996), Recht und Gerechtigkeit. Eine Einführung in Grundfragen des Rechts,1, Berlin: Springer-Lehrbuch. Vandenberghe, A.-S. (2007), ‘The Economics of the Non-Discrimination Principle in General Contract Law’, European Review of Contract Law, 3 (4), 420. van Gerven, W. (2006), ‘Needed: A Method of Convergence for Private Law’, in A. Furrer (ed.), Europäisches Privatrecht, p. 437. Walker, N. (2006), ‘Big ‘C’ or Small ‘c’?’, European Law Journal, 12 (1), 12-14. Walker, N. (2005), ‘Legal Theory and the European Union: A 25th Anniversary Essay’, Oxford Journal of Legal Studies, 25 (4), 581-601. Weatherill, S. (2009), ‘Competence and Legitimacy,’ in C. Barnard and O. Odusu, The Outer Limits of European Union Law, UK: Hart Publishing. Hans-W. Micklitz 32 Weatherill, S. (2005), ‘Minimum Harmonisation as Oxymoron? The Case of Consumer Law’, in H.- W. Micklitz (ed.), Verbraucherrecht in Deutschland – Stand und Perspektiven, VIEW Schriftenreihe, Band 20. Weatherill, S. (1996), ‘The Evolution of European Consumer Law and Policy: From well Informed Consumer to Confident Consumer’, in H.-W. Micklitz (ed.), Rechtseinheit oder Rechtsvielfalt in Europa?, Baden-Baden: Nomos, p. 423. Weber, M. [1922] 1980, Wirtschaft und Gesellschaft. Grundriß der verstehenden Soziologie, Tubingen: J.C.B. Mohr. Whincup, M. (1980), Consumer Legislation in the United Kingdom and the Republic of Ireland, New York. Wieacker, F. (1967), Privatrechtsgeschichte der Neuzeit, 2. Auflage, Göttingen. Wilhelmsson, T. (2008), ‘The Contract Law Acquis: Towards More Coherence Through Generalisation?’, Europäischer Juristentag, 4 (1), 111-145. Wilhelmsson, T. (2005), ‘European Consumer Law: Theses on the Task of the Member States’, in H.- W. Micklitz (ed.), Verbraucherrecht in Deutschland – Stand und Perspektiven, VIEW Schriftenreihe, Band 20. Wilhelmsson, T. (2003), ‘Services of general interests and European Private law,’ in Rickett, C. E. and T. G.W. Telfer (eds.), International Perspectives on Consumers’ Access to Justice, Cambridge: Cambridge University Press. Willet, C. (2008), ‘General Clauses on Fairness and the Promotion of Values Important in Services of General Interest’, in C. Twigg-Flesner and D. Parry and G. Howells and A. Nordhausen (eds.), in Yearbook of Consumer Law. Zimmermann, R. (2005), ‘Consumer Contract Law and General Contract Law: The German Experience’, Legal Current Problems, 58, 415-489. 
work_ie2xba3l5nbo3dx3tpc2tdfjoy	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221732773 Params is empty 221732773 exception Params is empty 2021/04/06-03:20:30 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221732773 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:30 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_ieubcl43ebhgtbqpp7eirkjcum	----	Microsoft Word - Access_to_Justice_and_Litigation_Saraceno_SSRN WP UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) UvA-DARE (Digital Academic Repository) Justice: greater access, lower costs Saraceno, M. DOI 10.2139/ssrn.2383864 Publication date 2014 Document Version Submitted manuscript Link to publication Citation for published version (APA): Saraceno, M. (2014). Justice: greater access, lower costs. (Amsterdam Center for Law & Economics Working Paper; No. 2014-01). University of Amsterdam. https://doi.org/10.2139/ssrn.2383864 General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. Download date:06 Apr 2021 https://doi.org/10.2139/ssrn.2383864 https://dare.uva.nl/personal/pure/en/publications/justice-greater-access-lower-costs(00b3b774-53f0-42f3-9667-aec2be978011).html https://doi.org/10.2139/ssrn.2383864 Electronic copy available at: http://ssrn.com/abstract=2383864 JUSTICE: GREATER ACCESS, LOWER COSTS Margherita Saraceno Amsterdam Law School Legal Studies Research Paper No. 2014-06 Amsterdam Center for Law & Economics Working Paper Paper No. 2014-01 Electronic copy available at: http://ssrn.com/abstract=2383864 Justice: Greater Access, Lower Costs Margherita Saraceno♣ January 21, 2014 Abstract Litigation imposes large costs on society; this justifies settlement considerations. In any case, access to justice is critical to socioeconomic development; as such, it needs to be balanced with litigation minimization. This study examines the tradeoff between litigation and access to justice and explicitly elucidates their relationship. In considering access issues, this study finds that the outcomes of policies that affect parties’ litigation decisions partially depart from those in the standard literature. For instance, increasing parties’ litigation costs does not necessarily promote settlement in the shadow of the court. Rather, effects depend on the elasticity of the demand for legal remedies. Furthermore, even while pushing litigation, enhancing access to justice is efficient as long as the claimant’s marginal propensity to litigate is smaller than the social opportunity-cost of access to justice. This finding offers further insight into the suitability of litigation subsidization through legal aid. JEL classification: K41. Keywords: access to justice, litigation, settlement, elasticity. _____________________________________________________________________ ♣Amsterdam Center for Law and Economics, University of Amsterdam and DEMS, University of Milano- Bicocca. Roetersstraat 11, 1018 WB Amsterdam, Netherlands. Phone: +31 (0)20 525 7164; Fax: +31 (0)20 525 5318; Email: m.saraceno@uva.nl. Corresponding author. This research has received funding from the People Programme (Marie Curie Actions) of the European Union's Seventh Framework Programme (FP7/2007-2013) under REA grant agreement n° 298470. I wish to thank Giuseppe Dari-Mattiacci, Iljoong Kim, Eric Langlais, Avraham Tabbach, Josephine van Zeben, Abraham L. Wickelgren, and the participants of the AEDE Conference 2013 (Granada), the CLEA Conference 2013 (Toronto), the GLEA Conference 2013 (Lugano), and the LIEN-Nanterre seminar (Paris) for the useful suggestions. The usual disclaimers apply. Electronic copy available at: http://ssrn.com/abstract=2383864 1   1. Introduction Disputes naturally emerge in every complex society. All of the parties to a dispute are directly affected by the events that gave rise to such dispute, and thus, they all tend to be interested in resolving them. However, disputes and their resolution are not purely private problems; they also constitute a social problem, as unresolved disputes produce negative externalities for the whole of society. In fact, when claimants simply “give up” because legal remedies are for some reason inaccessible, major social consequences emerge, including a sense of impunity, a lack of trust in institutions, underdeterrence, and increased uncertainty within the legal system. In extreme situations, when legal remedies are missing or inaccessible, conflicts can lead to severe consequences for the parties involved; widespread disorder and even violence can arise. Conversely, when access to justice is guaranteed, justiciable problems can be resolved through legal remedies such as in-court litigation or settlement (in a broad sense). For these reasons, effective and full access to justice is considered a crucial element in socioeconomic development and social security. Even the most developed legal systems struggle with ensuring citizens access to justice, since a significant number of claimants continue to be systematically excluded from legal remedies. (See, for example, the Access to Justice Initiative by the U.S. Department of Justice, the Initiative in Support of Access to Justice by the Department of Justice of Canada, the Australian Government Strategic Framework for Access to Justice, and the Access to Justice Agenda by the European Union Agency for Fundamental Rights.) Besides access to justice, policymakers have highlighted a further problem related to dispute resolution. In-court litigation is extremely costly for society, and excessive amounts of litigation result in judicial diseconomies and increased court workloads, eventually exacerbating inefficiencies. Despite the dearth of internationally comparable indicators concerning public expenditure vis-à-vis the judiciary, the public budget allocated to the various justice systems remains relevant.1 Policymakers are acutely aware of the need to ensure, and in some cases enhance, access to justice while keeping judiciary costs low. This problem is aggravated by the need to curb public spending in a time of financial crisis, since litigation accounts for most of the judicial spending. The academic literature usually analyzes these two problems—namely, obstacles to access to justice, and excessive litigation—separately, despite their evident interconnections. This study attempts to overcome this shortcoming in the literature by taking a unitary approach to the relationship between litigation and access to justice.                                                              1 For instance, in 2010, the annual approved budget allocated to the judiciary in the United States was USD 6.8 billion; across the European Union, the per-country average was EUR 2.8 billion, with a maximum of EUR 14.2 billion in the United Kingdom and a minimum of EUR 0.08 billion in Cyprus. Data are not directly comparable, since budgets can include a variety of statements depending on the country. See the Administrative Office of the U.S. Courts (2012) and CEPEJ (2012). 2   Starting from a standard law and economics setting (Bebchuk 1984; Nalebuff 1987), the problem of dispute resolution is modeled from both the micro perspective (i.e., parties’ choices) and the aggregated perspective of the social planner. The resulting framework allows us to analyze how policies—including administrative fees related to going to court, additional penalties and punitive damages, and legal aid—affect access to justice, litigation, and finally, the social costs of dispute resolution. The main results of this study can be summarized as follows. Dispute selection for trial. Taking into account the dimension of access to justice, the model used herein reconsiders some of the usual results found in the law and economics literature on litigation and the settlement rate. In particular, we find that higher claimant litigation costs discourage both settlement and litigation. Actually, every claimant who “gives up” because of excessive litigation cost neither settles nor litigates. Increasing the value at stake ambiguously affects settlement because of two combined effects: some claims shift from the sample of those settled to the sample of those litigated; others start to be settled, rather than remain unresolved. Finally, in some circumstances, the defendant costs play no role in determining the type of legal solution that is actually adopted. In particular, when the claimant must bear litigation costs that are relatively higher than those of the defendant, the selection of the preferred legal solution is driven mainly by the former. For claims in the shadow of the court, the model shows that changes in costs and amounts at stake affect settlement and litigation rates, depending on the elasticity of the demand for legal remedies. Litigation and access to justice. Improving access to justice will necessarily increase the number of litigation instances; this raises a relevant policy tradeoff. However, guaranteeing the access to justice of socially meritorious claims, even at the cost of pushing litigation, is always efficient. Intuitively, thanks to settlement, one additional claim’s access to justice results in less than one additional claim in litigation. Therefore, it is efficient to improve access to justice, as long as the claimant’s marginal propensity to litigate remains smaller than the social opportunity-cost of access to justice. Policy implications. The model used herein illustrates the tradeoff between promoting access to justice and discouraging litigation, through policies that result in larger litigation costs for claimants or an increased amount at stake (e.g., punitive damages). Additional penalties and fees levied on the defendant can be either wholly effective or ineffective, depending on the economic involvement of the defendant in the lawsuit. In particular, such policies can discourage litigation without affecting access to justice, except when the defendant must bear litigation costs that are so low that the decision to litigate or settle is in fact driven by the claimant. With respect to legal aid, the model shows that it is efficient to subsidize litigation as long as the standardized rate of litigation is lower than the social opportunity- costs of access to justice. 3   The remainder of this paper is organized as follows. Section 2 provides a brief overview of the literature. Section 3 presents the model and its policy implications, with particular attention being devoted to legal aid. Section 4 provides concluding remarks. 2. Background and related literature This section attempts to summarize briefly the main literature contributions, an understanding of which can be useful in framing the potential tradeoff between litigation and access to justice. Most studies generally focus either on litigation dynamics or on access to justice. The former topic constitutes a broad strand of law and economics literature, while the latter has mainly been investigated from either a comparative law or a political economy perspective. 2.1. Litigation versus settlement (in the shadow of the court) The traditional literature on litigation and settlement bargaining is vast and mainly based on a game-theory approach. A more recent and comprehensive survey of this topic is provided by Daughety and Reinganum (2012), who systematize a large number of contributions ranging from axiomatic models to those based on a strategic approach.2 Mainly, this kind of literature analyzes the reasons why parties in conflict fail in their negotiations and, subsequently, their cases go in trial. In fact, settlement acts as a sort of filter by selecting some of the cases for the court while resolving the others. Although litigation is able to produce positive externalities in terms of deterrence and reductions in law- uncertainty through precedent,3 it is generally considered wasteful, both for the parties involved and for society. For this reason, the literature mainly focuses on the capacity of bargaining to reduce the litigation rate.4 Pretrial bargaining has been modeled both as a sequential game (with one, multiple, or infinite rounds) and, less frequently, as a simultaneous game.5 According to the literature, the main source of settlement breakdown and consequent litigation is the persistence of the differential expectations of the parties on trial outcomes, even after bargaining interaction.6 This persistence has been explained while                                                              2 Axiomatic models usually assume perfect or imperfect but symmetric information. Solutions are typically cooperative. Strategic models emphasize the strategic interaction of parties, the Bayesian updating of their beliefs, and noncooperative solutions. See Cooter and Rubinfeld (1989). 3 See Che and Yi (1993); Dari-Mattiacci and Daffeins (2007); Landes (1971); Polinsky and Rubienfeld (1988); Posner (1973); and Shavell (1982), (1997), and (1999). 4 Besides the literature on settlement, see also contributions vis-à-vis alternative dispute resolution (e.g., Shavell 1995). 5 Settlement is often designed as an ultimatum game in one round, as seen in, for example, Bebchuk (1984), P’ng (1983), and Reinganum and Wilde (1986). On multiple-round settlement, see Spier (1992) and Wang et al. (1994). On infinite rounds, see Rubinstein (1982) and Yildiz (2003). On simultaneous games, see Daughety and Reinganum (1993) and Friedman and Wittman (2006). 6 In her extensive survey, Spier (2007) summarizes further explanations of settlement failure, including indivisible claims, nonpecuniary gains from going to trial, friction in the liability system, and the existence of multiple claimants. 4   assuming either different and inconsistent priors (typically in axiomatic models), or asymmetric information between litigants (in strategic models).7  A common lesson can be drawn from the broad array of specific models on settlement: both asymmetries between parties in terms of information or beliefs and low litigation costs give rise to a positive rate of litigation, and then a certain level of inefficiency owing to some use of a costly trial. From this perspective, any model that is designed as a one-sided, asymmetric-information ultimatum game seems to provide sufficiently robust and general insights (Daughety and Reinganum 2012, section 12.4).  Although the theoretical literature on settlement is immense, a great proportion of the studies therein assume that the claimant has a credible threat to litigate against the defendant. This means that the claimant can and wants to go to trial if settlement fails. In modeling, the capacity and will to proceed to court usually correspond to the fact that the claimant is, somehow, always able to pay for litigation and expects to obtain a positive expected value (PEV) from it. This common assumption is perhaps related to the fact that there is little consensus on how to distinguish socially meritorious lawsuits from those that are frivolous. Although resolving claims with negative expected value (NEV) may be socially valuable, the literature tends not to distinguish NEV cases and frivolous suits.8  Relatively few contributions relax the PEV hypothesis, and Schwartz and Wickelgren (2009) show that the game design strongly affects the possibility of settling NEV cases that will typically remain neither settled nor litigated.9  In a nutshell, the principal interest of the theoretical literature on litigation dynamics seems to be explaining failures of settlement in the shadow of the court—namely, when claimants can at least accomplish a legal remedy through a trial. This approach has generated a rich body of literature on procedural rules and settlement protocols that can influence case selection and hence the settlement rate.10 However, the standard literature seems to place little emphasis on the fact that in the real world many people cannot achieve any legal remedy, because they are unable to be in the shadow of the court.                                                               7 See Bar-Gill (2005), Cooter and Rubinfeld (1994), Gould (1973), Landes (1971), Priest and Klein (1984), and Posner (1973). See Chung (1996) about inconsistent priors. See also Gertner and Miller (1995), who provide a settlement protocol where divergent priors cannot be perfectly communicated and thus remain private information. Starting with P’ng (1983), a strategic approach involving the updating of consistent beliefs has been preferred in analyses of the strategies of rational agents. 8 On the distinction between PEV and NEV cases and meritorious and frivolous cases, see Bebchuk and Chang (1996, p. 372), Katz (1990, p. 3), Nalebuff (1987, FN 3), Polinsky and Rubinfeld (1993, p. 404), Shavell (1982), and Spier (2007). 9 They show that claimants with NEV cases are unable to settle their claims. Conversely, defendants can also resist litigation when they have an NEV defense. Other studies show that NEV claims can be settled in very specific cases: i) in screening models with uninformed defendants (Bebchuk 1988), ii) by making particular assumptions concerning legal costs (Bebchuk 1996, Katz 1990, and Rosemberg and Shavell 1985); and iii) by assuming a claimant’s commitment to proceed, even if his or her updated expected value is negative (Nalebuff 1987). 10 Reviewing this literature is beyond the scope of the current study. Some extensive surveys are available, including those of Daughety and Reinganum (2012), Hay and Spier (2002), and Spier (2007). 5   Besides the theoretical literature, several empirical contributions analyze dispute selection for trial. While theory helps us recognize that the cases that go to trial are filtered by settlement, the empirical literature provides evidence of this phenomenon. However, econometrics offers a very multifaceted picture of the determinants of settlement rate. On the other hand—and probably for data-reliability reasons—the empirical literature on settlement and trial also focuses on cases in the shadow of the court—namely, those that are typically already filed and then legally resolved, by either settlement or trial.11   Finally, the literature on dispute selection for trial apparently does not address the fact that some disputes are not resolved at all, by litigation or by settlement. Since cases where claimants surrender are simply excluded from the analysis, litigation represents a failure because settlement is almost always cheaper (for both the parties involved and for society) and more expeditious than a trial.   2.2. Access to justice The interest in settlement (and in other pre- or extra-judicial solutions) is overriding, especially in developed countries where the primary impression is that the average citizen has too much access to justice.12 In such cases, litigation is perceived as excessive, and the judiciary is costly for taxpayers, the courts are overloaded by an increasing backlog, and consequently the length of proceedings is often too long to be accounted for in the quality of sentencing. For instance, among European Union countries, the average public budget allocated to courts in 2010 was EUR 66 per capita (including public prosecution and legal aid) (CEPEJ 2012). Even though the productivity and efficiency of the courts has improved in some cases, in some countries, the length of proceedings remains impressively protracted. (In Italy, the average duration of a litigious divorce at the first-instance court was 538 days; in Spain, robbery cases have an average duration of 826 days.)13 In 2010, in the United States, the per-capita budget for the judiciary was about USD 22 (without including several items, such as legal aid). In the United States in that year, the problem of heavy caseloads is relevant, as the median of the duration of complex civil proceedings exceeded 687 days.14 Nonetheless, as has been asserted by several institutional contributions to the literature—including the most recent of FRA (2011) and CFCJ (2012)—and by the U.S. Department of Justice (2013), in the most advanced judicial systems, access to justice is critical. The U.S. Department of Justice, in fact, “established the Access to Justice Initiative (ATJ) in March 2010 to address the access-to-justice crisis                                                              11 See Cooter et al. (1982), Hylton and Lin (2010), and Priest and Klein (1984). See also Eisembergh (1990) and Fournier and Zuehlke (1989), each of whom suggest some testable models of settlement and case selection. On the possible determinants of settlement rates and success rates in trials, see Boyd and Hoffman (2012), Farber and White (1991), Gross and Syverud (1991), Huang et al. (2010), and Kessler et al. (1996). 12 See the extensive work of Rhode (2004), and also that of Ramseyer and Rasmusen (2010) and Silver (2002). 13 See CEPEJ (2012); the data refer to first-instance noncriminal courts. 14 Statistics are provided by the Administrative Office of the U.S. Courts on the institutional website. Duration refers to the median time interval in 2010 among civil cases, from filing to trial. 6   in the [American] criminal and civil justice system” (quoted from the ATJ ). Many common people are unable to access the judiciary, often for financial reasons, but there are also other barriers. Some of them decide to seek out unconventional solutions, while others simply give up.15 Despite awareness that access to justice is problematic, information about the extent of the problem, its determinants, and possible solutions remains fragmented. Although financial obstacles do not constitute the sole cause of unmet legal needs, academic contributions have mainly focused on the private costs of litigation.16 Not surprisingly, the most frequently debated of the policies used to address limited access to justice is that pertaining to litigation through legal aid. Recently, new actions like third-party litigation-funding and legal services deregulation have been suggested as ways of making litigation more affordable.17 From a socioeconomic perspective, access to justice has become a fundamental issue, and not only for reasons of fairness.18 Effective access to the judiciary is a leading component of a democratic society.19 Political economics has widely demonstrated—mainly empirically—the positive interdependence of economic and legal institutions. In particular, both adjudication and law enforcement through the courts and well-functioning legal institutions are critical to social and economic growth, since inequalities in terms of rights protections can cause institutional breakdowns and slow growth.20 In general, a lack of access to legal remedies should be a concern not only for those individuals who are unable to pursue their claims; it should be the concern of all citizens, as it affects the health and economic and social well-being of all. The tendency among unresolved disputes (especially in some areas of law) is for there to be an escalation in conflicts, which make resolution more and more difficult. Legal issues such as family matters, injuries from accident and crime, housing and                                                              15 See Coumarelos et al. (2006); Currie (2006), (2009a), and (2009b); Genn (1999); Kritzer (2008); and Rohde (2004). See also the following surveys: AM. BAR ASS’N (1994) and LEGAL SERVS. CORP. (2005) and (2009), with regard to the United States; Genn (1999), with regard to the United Kingdom; and Genn and Paterson (2001), with regard to Scotland. 16 On the obstacles to access to justice, see Genn (1999); Yates et al. (2001); and Kritzer (2008) and (2010). For a development perspective, see UNDP (2004) and (2010) and World Bank (2006). For a theoretical perspective, see also Galanter (2010), Fennel (2010), and Mnookin (1993). On the role of costs, see Buck et al. (2009); Hadfield (2000), (2009), and (2010); and Kritzer (2008) and (2010). 17 See Hodges et al. (2009). On legal aid, see Buchko et al. (2002), Garoupa and Stephen (2004), and Varano and De Luca (2007). Statistics on legal aid in European countries are found in CEPEJ (2012). On third-party litigation funding, see Daffein and Desrieux (2011), Fenn and Rickman (2010), Garber (2010), Molot (2010), and Rodak (2006). On the debate on the market organization of legal services, see Garupa (2013) and Hadfield (2000), (2008), and (2013). 18 Legal scholars have extensively debated the relevance of access to justice as a right that underpins all other rights. See Cappelletti et al. (1979) and Schlesinger (1988), each of whom provide seminal contributions on this topic. See also Alcock (1976), Mattei (2006), and Sommerlad (2004). 19 See Friedman (2006), Marshall (1950), UNDP (2010), and World Bank (2006). 20 See Acemoglu and Johnson (2005), Ellickson (1991), and North (1989). See also Glaeser et al. (2003) and UNDP (2010). 7   employment, fundamental rights like nondiscrimination and health, and disputes with public administrations can exacerbate both social exclusion and overall social costs.21 Scholars have recognized the potential tensions between effective access to justice for all, and the social and private costs related to litigation (Posner 1998; Shavell 1982). However, the theoretical law and economics literature barely works to disentangle the emerging tradeoff between favoring access to justice and curbing expensive litigation. Societies could reduce litigation costs dramatically by discouraging the use of the courts, but if this gives rise to numerous unresolved justiciable problems, its burden on socioeconomic development may be substantial. 3. The Model Given the relevance of the potential tradeoff between litigation and access to justice, the model below addresses the question of dispute resolution, from both private and social perspectives. 3.1. The social planner’s problem From an aggregated perspective, the “social planner’s problem” can be defined as follows. Disputes are assumed to be exogenously determined and can be resolved legally by litigation in court, or by settlement.22 Otherwise, disputes remain unresolved because claimants give up —or, they are resolved by unconventional means, including violence.  Litigation (l) is costly for society. Assume that, on average, resolving a dispute by litigation costs the taxpayers λ. This references the idea that litigation involves a transfer from litigants to the public administration and also that a net negative externality arises.  Alternatively, disputes can be resolved by settlement (s). This system of dispute resolution is assumed not to be costly for society. Otherwise, since settlement is simply less costly than litigation, the social cost of settlement is normalized to zero.  Finally, if disputes remain unresolved or are resolved by unconventional means ( ), the society bears a social cost that relates to the lack of legal solutions. The social cost of includes costs related to reduced social cohesion, diminished security, lower trust, a reduced sense of justice, underdeterrence, social exclusion, morbidity, and violence. On average, an unresolved/unconventionally resolved dispute costs society γ.                                                              21 See Genn (1999); Pleasence et al. (2004), (2006), (2007), and (2008); and Stratton and Anderson (2008). 22 Considerations of endogenous disputes would complicate our analysis, without being overly useful. J J 8   The total number of disputes is normalized to 1, without a loss of generality. Assuming that each “resolution” occurs with a certain probability, the social planner’s problem may correspond to the minimization of the following social loss function: It is evident that the first-best solution for the social planner would be that all disputes be resolved by settlement, with zero social costs. Nonetheless, two main points need to be noted. First of all, even if every dispute were settled (or in general, legally resolved out of court), a court-based system nonetheless needs to be guaranteed. Settlement can exist only as a complement to litigation, since the latter represents the last-resort mechanism in making bargaining agreements enforceable. Conversely, litigation requires no party’s agreement to work, since the winning party achieves an enforceable solution against the other party. Second, by setting procedural rules and the judiciary, the social planner can define the supply for legal solutions (both l and s). Note that in developed legal systems, the supply of legal remedies may be seen as perfectly elastic, at least in the short term. In fact, legal systems do not admit to rationing the supply of legal solutions to justiciable problems. Actually, for a given level of quality or fairness, a less- efficient judiciary can provide legal remedies at a higher cost and with longer delays, while efficient courts can provide solutions at a lower cost and more quickly. However, the social planner cannot directly determine how disputes are actually resolved. This choice in fact rests on how the parties in a conflict decide to resolve their justiciable conflicts. Therefore, to analyze the social planner’s problem, it is necessary to disentangle how the parties work to resolve it. 3.2. The parties’ problem From a micro perspective, the analysis focuses on a representative claimant–defendant pair that is involved in a (monetary) dispute. Both claimant K and defendant Δ are rational and risk-neutral.  The claim amount at stake is A; it is common and public knowledge. This is also the value that is awarded by the court in favor of K, and paid by Δ, if the former prevails in trial because the latter is recognized as liable by the judge. No judicial error can occur over both the magnitude of the claim and the liability of the defendant.  To litigate before the court, K bears a litigation cost CK = cKA, where cK ∈ 0,1 . Actually, rational K never proceeds to trial for cK ≥ 1. If called before the court for trial, Δ must pay a litigation cost equal to CΔ = cΔA, where cΔ ∈ 0,1 . Each party bears his/ her own litigation cost. Litigation costs are public and common knowledge; they include lawyers’ and court fees, taxes, and all the other costs that are privately borne by parties to    Pr Pr 0 Prl s J      9   litigate in court. As commonly assumed in the literature, settlement allows parties to save on litigation costs. The assumption that costs are proportional to the amount at stake is without loss of generality. Furthermore, litigation costs relate largely to the amount at stake rather than, for instance, the actual liability of the defendant (Trubek et al. 1983). In this subsection, no budget constraint restricts the parties’ choices; in subsection 3.4., a budget constraint is introduced for the claimant.  The interaction between the parties is characterized by one-sided asymmetric information concerning the liability of the defendant.23 In particular, K is the uninformed party,  while Δ in the informed party. K does not know if Δ is of a type that will be considered actually liable (type 1) or not (type 0); she only knows that the probability of facing a liable defendant (Δ₁) and prevailing in trial is p, while the probability of facing a nonliable defendant (Δ₀) and losing the case is (1 – p). Δ knows his own type. Note that p can be interpreted as the legal merit of the case. For the sake of simplicity, we assume that the defendant is either fully liable or not liable. This facilitates the interpretation of results, without loss of generality. As explained in subsection 2.1., one- sided asymmetric information models provide a litigation-settlement framework that is sufficiently robust to catch the many insights concerning the parties’ behavior. Since the study focuses on the access-to-justice problem for claimants, the preferred option is to assume that K is the uninformed party. 3.2.1. Access to justice and settlement bargaining Once the dispute arises, if K simply gives up and the dispute remains unresolved, she will not obtain any kind of relief, and both parties will have a null payoff.24 If K expects a positive outcome from litigation, she will access the judiciary and file a case against Δ. However, before the actual trial commences, it is appropriate to attempt a settlement, to avoid litigation costs. Consistent with some of the literature and without any original contribution from the perspective of the settlement process, bargaining is designed as an ultimatum-screening game (Bebchuk 1984; Nalebuff 1987). This allows for understanding several features of trial selection while being functional with regard to the analysis. In particular, the uninformed party—in this case, K—proposes a take-or- leave-it agreement to the informed party—namely, Δ. The take-or-leave-it bid for settlement implies that K commits to going in trial in the case of settlement failure—even if, after bargaining, the expected value of litigation becomes negative.25                                                              23 Saraceno (2008) provides a similar analysis that assumes inconsistent priors. 24 In the case of an unconventional solution, the payoff may differ from zero. However, for the sake of simplicity, this analysis focuses on cases where claimants give up and do not legally proceed. 25 Note that this is consistent with the literature on credible threat and settlement. See, among others, Nalebuff (1987), who investigates both the problem of credible threat and the commitment to go to court of a claimant who has a PEV suit. 10   Therefore, although parties can avoid a trial by settling the case, K wants to access the judiciary to legally resolve the dispute, but only if she has a positive prior on litigation outcome. This explains well the complementarity between litigation and settlement: the latter can be an alternative solution to the former only when litigation is feasible and represents a credible threat. In summary, K accesses justice iff her expected litigation outcome is positive, such that: . (1) When the access to justice condition (1) holds, K can make a credible proposal of settlement to the defendant. She prefers settlement only when she can bargain a settlement amount (S) greater than (or equal to) her expected litigation outcome—thus, when . Obviously, the defendant (Δ) accepts the settlement agreement only if S is smaller than (or equal to) his expected litigation outcome—thus, when: However, the claimant—who naturally wants to maximize her overall payoff—does not know the defendant’s type. Therefore, she faces the usual tradeoff between demanding a high amount that is more easily rejected, and being satisfied with a lower amount that is sure to be accepted. Two equilibrium solutions arise: a pooling strategy equilibrium, and a screening strategy equilibrium. If K demands (pooling strategy), the probability of rejection is null and the case is sure to be settled. Asking for less would be irrational for the claimant. If K demands (screening strategy), the proposal is accepted only by a type-1 defendant (liable)—therefore, with a probability p. Asking for more would be irrational, since the demand would be surely rejected. In the case of a pooling strategy, K obtains a payoff equal to S₀; otherwise, with a screening strategy, she expects to obtain . K’s optimal strategy derives from a comparison of the two possible payoffs. In particular, K opts for a screening strategy when the probability of facing a liable defendant is sufficiently high—that is, when: (2) Two relevant thresholds can be identified with respect to p. The first, the access-to-justice threshold ( ), concerns the possibility K accessing justice. The second, the trial-selection threshold— namely, —concerns the possible legal solutions (i.e. litigation, screening settlement, or pooling settlement) that can be adopted by the parties. ( )Kp c A Kp c ( )KS p c A  0 1 if = (1 ) if = S c A S c A          0S c A 1 (1 )S c A  1 - (1- ) KpS p c A (1 ) K K c c p c c       Kc   1(1 )K Kc c c c     11   In analyzing the thresholds, one must note that the former lies to the left of the latter iff . Therefore, two cases depending on the relative size of the parameters can be distinguished. Case I.  For , no access to justice  For ∆ ∆ , pooling settlement;  For ∆ ∆ , screening settlement with prob. p, litigation with prob. (1-p). Case II.     For , no access to justice  For , screening settlement with prob. p, litigation with prob. (1-p).   The two cases are illustrated in Figure 1. Cases with greater legal merit access justice more frequently than those with lower legal merit. As described in the literature, lower-merit claims accessing the judiciary are settled via pooling settlements (as in case I); those of “intermediate” merit are likely to be litigated, while those of high merit are probably settled via screening settlements. Figure 1. Dispute resolution: parameter thresholds (p). Concerning the parameter restrictions that determine the case I or case II typology, note that ∆ measures the overall litigation costs (for an amount-at-stake unit), while the ratio ∆/ can be interpreted as a measure of economic-power asymmetry between the parties. When parties are symmetric in terms of economic power (i.e., bear the same litigation costs), case I will include cases that are characterized by lower overall litigation ( ). On the other hand, when costs are relatively high ( ), disputes fall into the case II category.  K Kc c c c     12 1K K K K c c c c c c c          12 1K K K K c c c c c c c        Kc c 1 2  Kc c 1 2  12   For a given level of total litigation costs, case I corresponds to a relatively more powerful claimant who can litigate by paying a low share of the overall costs. Conversely, case II corresponds to a more powerful defendant who is able to stay in trial by paying a lower share of overall litigation costs. Figure 2 shows how the two cases are determined, for different litigation cost levels.26 Appendix A.1. further discusses how changes in the parameters shift the analysis from case I to case II, and vice versa. Figure 2. Litigation costs and analytical cases 3.2.2. Rates of access to justice, settlement, and litigation: Comparative statics The analysis below illustrates how changes in the relevant parameters affect litigation and access to justice for an overall unitary amount of disputes emerging within a society. The following exercise in comparative statics is carried out while assuming that each claimant–defendant pair has a dispute characterized by a certain legal merit p i.i.d. as a standard uniform distribution: 27 We define a number of measures that are relevant to policy implications:  J is the rate of access to justice. This is a measure of demand for legal remedies. Its complement to 1 measures the rate of disputes remaining unresolved (or unconventionally resolved).  l, s0, and s1 are the absolute rates of litigation, pooling settlement, and screening settlement, respectively. They naturally sum to J. As seen previously, two cases must be distinguished in line with the parameter restrictions. Table 1 provides the absolute rates for the two cases. All rates can be easily rewritten as a function of A. In addition, since the literature usually analyzes litigation and settlement rates by focusing on claims in the shadow of the court—namely, those that can actually access the judiciary—we define:  l/J and s/J as the standardized rates of litigation and settlement, respectively. They naturally sum to 1. Standardized rates can be calculated simply by dividing the corresponding absolute rates by J.                                                              26 The red curve corresponding to equation represents the frontier along which the two thresholds overlap perfectly. Along the 45-degree line, the costs are symmetric. 27 The use of the uniform distribution allows us to obtain very tractable results. For other symmetric probability distributions of p, the uniform distribution provides robust insights. Asymmetric distributions complicate the analysis without substantially jeopardizing general results.  0,1 .p u   12 1K Kc c c    13   Table 1. Absolute rates of access to justice, settlement, and litigation Case I.  Case II.  Tables 2 and 3 summarize the signs of the partial derivatives of the rates with respect to the model parameters. Uncertain signs are discussed in the text, as their analysis offers useful insights. Details are provided in Appendix A.2. Results of the comparative statics both support a number of Propositions (1– 4) and allow us to discuss a number of policies. Case I Regarding access to justice, it is easy to understand that access to justice positively depends on the amount at stake, while depending negatively on the claimant’s litigation costs. Given the allocation of litigation costs, the defendant costs do not influence access to justice. Comparative statics on the defendant’s litigation costs provides standard and intuitive results: high costs discourage (screening) settlement against litigation, in both absolute and standardized terms. Table 2. Case I: Effects of parameter changes on absolute and standardized rates A J - 0 + s0 - + - if s1 - - + s - + - if l - - + s /J + if + - if l /J - if - + if is the elasticity of J with respect to . Analysis of the claimant costs and the amount at stake shows less-than-standard but fairly sound insights. Increasing the claimant costs reduces both settlement (pooling and screening) and litigation   12 1K Kc c c      12 1K Kc c c            1 1 0 1 1 2 1 0 1 2 1 2 1 1 1 1 2 1 1 1 2 1 1 1 2 1 K K K K K K K K Kc c c Kc c Kc K K c c K c c K K K c c c c K J dp c c c s dp c c c c c s pdp c c c s s s c c c l p dp c c                                                           1 0 1 2 1 1 2 1 0 1 1 2 1 1 1 2 K K K Kc Kc Kc J dp c s s s pdp c l p dp c                Kc c  , 1 KJ c K c     , 1 KJ c K c     , 1 KJ c K c     , 1 KJ c     , 1 KJ c K c     , 1 KJ c    , K K J c K cJ c J     Kc 14   because then fewer claims can access justice. Increasing the amount at stake unambiguously increases both screening settlement and litigation; in fact, in such cases, more claims can access justice, and those characterized by a higher probability of success are settled for a screening amount. Litigation increases through two drivers: augmented access to justice, and a partial shift of some claims from pooling settlement to litigation. The remaining effects are ambiguous. Only under some parameter restrictions are the effects as expected. To discuss these restrictions, we also resort to the (absolute value of the) elasticity of the demand for legal remedies . This is a monotonically increasing function of , defined over the interval . Concerning the effects of changes in on the standardized rate of litigation (settlement), it is evident that increasing the claimant cost reduces both the proportion of disputes that go to trial and the proportion of disputes that can access justice. This combined action can increase or decrease the standardized rate of litigation (settlement). The standardized rates of litigation and settlement behave as usual—namely, the former decreases, while the latter increases by the same amount in —only when corresponding to , 1 ˆ( ) ( ) 1, , 2K J c K K c c c c c c            (details in Appendix A.2). Figure 3 (left) illustrates the parameter restriction in terms of costs. The dashed dark line in the graph represents the elasticity , ( )KJ c Kc , which can be measured along the y-axis. Figure 3. Effects of changes in on the standardized rates of litigation and settlement: Case I Figure 3 (right) shows the parameter restriction in terms of elasticity. In particular, the increasing curve represents the elasticity of the demand for legal remedies, along the frontier between case I and   1, 1K K J c K K K cJ c c c J       Kc  0,  Kc Kc 1 3c c   Kc 15   case II; it is also the upper limit of the elasticity for case I.28 The decreasing curve corresponds to the threshold ˆ( )c  , which is always (significantly) smaller than 1. The standardized rate of litigation (settlement) decreases (increases) with an increase in the claimant’s litigation cost, as usually described in the literature—but only if the demand for legal remedies is sufficiently inelastic (light-grey areas in both figures). It is evident that when , ( ) 1KJ c Kc  , the effect of reduced access to justice prevails, and the standardized rate of litigation increases (settlement decreases). Increasing the amount at stake ambiguously affects both the absolute rate of pooling settlement and the absolute rate of total settlement. In fact, a higher amount at stake both favors access to justice and shifts some claims from pooling to screening settlement and litigation. This happens because the claimant is asking for more to settle. On the other hand, a larger amount at stake spurs the defendant to settle. The combined effects can increase or decrease the absolute rates of pooling and total settlement. The absolute rate of pooling settlement decreases in A under the following parameter restriction: . The parameter restriction to have an absolute rate of settlement decreasing in A is stricter: . Analysis of these restrictions is not straightforward; details are discussed in Appendix A.2. These parameter restrictions on parties’ costs correspond to the elasticity threshold ˆ̂( ) 1 ,Kc c c    ; this implies that an increase in the amount at stake reduces the rate of pooling settlement only when a claimant’s litigation cost is sufficiently low—or, in other words, when the demand for legal remedies is inelastic. Therefore, when the demand is elastic (or there is unitary elasticity), an increase in the amount at stake enlarges the rate of pooling settlement. Note that the second parameter restriction is more binding than the first one; we can conclude that, when the demand for legal remedies is elastic (or there is unitary elasticity), the absolute rate of settlement is increasing in A. The intuition is clear: when the demand for legal remedies is elastic, the effect of augmented access to justice owing to a greater amount at stake prevails on the partial shifting from settlement to litigation. Concerning the standardized rate of litigation, note that a higher amount at stake enlarges both the proportion of disputes that go in trial and the proportion of disputes that access justice. This combined action can increase or decrease the standardized rate of litigation. The latter increases in only when . In terms of elasticity, this restriction corresponds to  2, 1 18 9 1 1 ( ) 1 2 4K J c c c c c c                (details in Appendix A.2.). Figure 4 (left) illustrates the parameter restriction in terms of costs. As usual, the dashed dark line in the graph                                                              28 Elasticity along the frontier has the equation . 2 K K Kc <(c +c )(1+c +c )    3 K K Kc <(c +c )(1+c +c )    A      1> 3 1 1- 3 1K K Kc c c c       0.5 0.5 4c c c      16   represents , ( )KJ c Kc , which can be measured along the y-axis. Figure 4 (right) shows the parameter restriction in terms of elasticity. Figure 4. Effects of changes in on the standardized rates of litigation and settlement: Case I The thinner line corresponds to the threshold . The standardized rate of litigation (settlement) is increasing (decreasing) in the amount at stake, only if the elasticity of the demand for legal remedies is sufficiently low (light grey areas in both figures). In particular, for case I, when , ( ) 1KJ c Kc  , then , ( ) ( ), ,KJ c K Kc c c c     . Therefore, when the demand for legal remedies is inelastic, the standardized rate of litigation (settlement) is increasing (decreasing) in A. When the elasticity is high and the defendant cost is sufficiently large (therefore, for values that are close to the frontier and between case I and case II), the standardized rate of settlement can be decreasing in A. The insight is intuitive: when the defendant incurs a high cost to stay in trial, he has a strong incentive to settle. Therefore, the augmented access to justice stemming from a higher amount at stake results in more settlement and less litigation. Case II Analysis concerning case II is simpler, since the effects of parameter changes on the relevant rates are unambiguous. As usual, low claimant costs and a high amount at stake increase access to justice. Table 3. Effects of parameter changes on absolute and standardized rates: Case II A J - 0 + s=s1 - 0 + l - 0 + s /J + 0 - l /J - 0 + A  Kc c 17   Nonetheless, even in this case, some of the current results depart from those in the standard literature. In particular, it is evident that defendant costs do not affect both absolute and standardized rates. Conversely, as in the standard literature, higher claimant costs and a lower amount at stake favor settlement against litigation for claims in the shadow of the court (standardized rates). On the other hand, higher claimant costs and a lower amount at stake discourage both settlement and litigation. 3.2.3. Propositions and remarks Given the results of the analysis in the previous subsection, it is possible to summarize the most relevant results through a number of propositions. Proposition 1. Claims characterized by a higher legal merit can access the judiciary more easily. The rate of access to justice is decreasing in the claimant cost and increasing in the amount at stake. It is not influenced by the defendant cost. Proposition 2. The absolute rate of litigation is decreasing in the claimant cost, increasing in the amount at stake, and negatively or not at all affected by the defendant cost (case I and case II, respectively). Propositions 1 and 2 illustrate the potential tradeoff between favoring access to justice and discouraging litigation through the enactment of policies, resulting in larger litigation costs among claimants. Furthermore, even if able to encourage access to justice, procedures that inflate the amount at stake of lawsuits must be carefully appraised, since they ultimately promote litigation. However, the aforementioned propositions also show that the tradeoff does not necessarily emerge. In particular, and different from the standard literature, the model used herein shows that the parties’ costs asymmetrically affect dispute selection for trial. First, higher defendant costs do not discourage access to justice, even as they potentially curtail litigation. In particular, larger defendant costs will reduce the litigation rate, provided the defendant is “sufficiently exposed” to the costs of going to trial (case I). On the other hand, when the defendant bears litigation costs that are low relative to the overall litigation costs (case II), marginal enlargements in his costs will not affect the litigation rates, since the rate of access to justice will remain the same and the selection of claims between (screening) settlement and trial will be driven only by the probability of claimant success. Proposition 3. Given (case I), the standardized rate of litigation (settlement) is decreasing (increasing) in the claimant cost and increasing (decreasing) in the amount at stake, only if the demand for legal remedies is sufficiently inelastic. The standardized rate of litigation (settlement) is always decreasing (increasing) in the defendant cost.   12 1K Kc c c    18   Given   (case II), the standardized rate of litigation (settlement) is decreasing in the claimant cost, increasing in the amount at stake, and not affected by the defendant cost. Proposition 3 shows that reductions in litigation costs and/or increases in the amount at stake do not necessarily promote the standardized rate of litigation. These results—which extend beyond those usually seen in the standard literature—are driven by the fact that here we take into account both litigation and access to justice. In particular, case I illustrates that the elasticity of the demand for legal remedies plays a key role in determining the effects of changes in parties’ costs and the benefit of trial on the standardized rate of litigation (settlement). Finally, policymakers with an interest in addressing the double issue of favoring access to justice while discouraging litigation should put additional effort into investigating the elasticity of the demand for legal remedies in different systems and for different legal matters. 3.3. Revising the social problem Given the model of the parties’ behavior presented in the previous subsection, we return to the social problem. Recalling that the overall amount of disputes emerging within society is standardized to 1, the representative dispute is assumed to be characterized as that between Δ and K. Note that parties’ private litigation costs are transfers (in favor of their lawyers, to pay litigation fees, etc.), but that from a social perspective, the average net externality stemming from the resolution of a dispute by litigation is λ. If the dispute is not legally resolved, society bears a net negative externality γ. Now, the social loss function (1) needs to be rewritten as: (3) It is straightforward that, for a given rate of access to justice, policies that are able to reduce the absolute litigation rate can unambiguously moderate the social costs of dispute resolution. More caution is required with policies that affect both rates. 3.3.1. Socially meritorious claims Recalling that and distinguishing between cases I and II, (3) can be rewritten as: .   12 1K Kc c c     1 Jl     1 KJ c        2 2 1 in Case I 1 in 1 2 2 Case I 1 I 2 J c J J J                19   In both cases, the first term of the sum represents the social cost of dispute resolution owing to litigation, while the second term is the social cost owing to the lack of legal resolution for justiciable problems. Since the first term is increasing in J and the second one is decreasing, favoring access to justice involves a tradeoff because of the increase in litigation. A simple condition is necessary (and sufficient) to having the social costs of dispute resolution decrease in J for both cases (see Appendix A.3.): (4) This condition provides some insights that are valuable from a policy perspective. First, when the social cost stemming from a lack of legal remedies is greater than or even equal to that borne by society for litigation, improving access to justice moderates the social costs of dispute resolution (note that is always smaller than 1). The intuition is simple: since not every justiciable problem shifted from the sample of those unresolved to the sample of those accessing the judiciary is resolved through litigation, improving access to justice unambiguously reduces the social cost of dispute resolution. Thanks to settlement, this is true even when the social cost stemming from a lack of legal remedies is equal to the social cost of litigation. Condition (4) also suggests that, in the debate on the concept of meritorious claims, it would be useful to distinguish between socially meritorious claims and privately meritorious claims. Socially meritorious claims can be identified as those disputes that are characterized by the claimants’ marginal propensity to litigate being smaller than the social opportunity-cost of access to justice ( ). Privately meritorious claims continue to be identifiable as those characterized by a PEV ( ). Naturally, the two concepts do not necessarily overlap. 3.3.2. Propositions and policy analysis Given the aforementioned analysis, it is possible to summarize the most relevant results of the model with respect to the social perspective, through a number of propositions and policy remarks. Proposition 4. Discouraging litigation without affecting access to justice is socially efficient. Note that this statement specifically concerns PEV lawsuits that are in the shadow of the court, since they can be actually litigated in the event of settlement failure. Proposition 5. Favoring access to justice always increases litigation; this can result in ambiguous social effects. It is always efficient to improve access to justice for socially meritorious claims, which are defined as those claims characterized by the claimant’s marginal propensity to litigate being 0 iff K l J c         Kl c     Kp c 20   smaller than the social opportunity-cost of access to justice. At least, this implies that it is always efficient to improve access to justice when the social cost stemming from a lack of legal remedies is greater than or even equal to the cost of litigation.   By combining the results of this subsection with those derived in the previous one, one can draw some policy implications. In particular, making litigation expensive for parties by charging claimants high litigation fees ambiguously affects the social cost of dispute resolution. Since this kind of policy discourages both litigation and access to justice, it exacerbates the tradeoff between the two policy goals. This sort of intervention could be useful only in a context of legal matters that involve very low social costs owing to a lack of resolutions and relatively high litigation costs. Conversely, higher litigation fees charged to defendants may reduce the expected social cost of dispute resolution by discouraging litigation, but while not affecting access to justice. However, this policy would also come with some limitations. The first limitation is of procedural fairness: it could be unfair to impose particularly high litigation costs on a defendant, who has in fact been forced into the process of defending him or herself. Discussions of fairness, however, extend beyond the present analysis. The second limitation stems from the fact that making litigation more expensive for defendants is ineffective when a pooling settlement is not feasible (case II). On the other hand, significant increases in defendant costs can make a pooling settlement feasible, finally resulting in less litigation. (On the shift from case II to case I, see Appendix A.1.) Concerning policies that affect the amount at stake, we mention only punitive damages and forms of civil or additional penalties. Punitive damages are paid by the defendant in favor of the winning claimant, with the aim of acting as a deterrent. They can be seen as an increase in A (perhaps they are also able to reduce γ). Punitive damages ambiguously affect the expected social costs of dispute resolution, given the usual tradeoff between the augmented rate of access to justice and the rising absolute rate of litigation. From a social perspective, such policies should be implemented only for socially meritorious claims. Penalties that are paid to the state—like civil or additional penalties—typically increase the amount at stake only for the defendant, without affecting the claimant’s amount at stake. They can be seen as an additional litigation cost paid by the defendant, but only in the case of the claimant’s success. They can discourage litigation without influencing access to justice. In addition, they might also be beneficial in terms of improved deterrence, perhaps reducing γ. 3.4. Claimants under budget constraints The above analysis completely ignores the possibility that the parties cannot pay their litigation costs. Since this study focuses on access-to-justice issues, the analysis below introduces a budget constraint for the claimant. On the other hand, the defendant continues to be assumed always solvent 21   (e.g., a large and professional defendant, or someone covered by insurance), and we choose not to consider “judgment proof” problems.29 Define ∈(0,∞) as K’s wealth normalized by A. In such a case, condition (1) is not enough to guarantee access to justice. An additional condition must be verified: the claimant’s wealth must be sufficient to cover the litigation cost ( ). No information asymmetry exists between the parties concerning their wealth.30 In summary, under the claimant’s budget constraint, the condition to access justice is: (5) Assume that normalized wealth among the population of potential claimants is a random variable distributed according to the density function h, with cumulative function H and independent of p. Note that the probability that the claimant is able to cover her litigation costs is , which is monotonically decreasing in and, recalling that , monotonically increasing in A. The rate of access to justice under a budget constraint— —is always smaller than that lacking a budget constraint. It is trivial to note that for a given probability of success, an unconstrained population of claimants can more readily access justice than a constrained one. Additionally, the absolute rate of litigation under a budget constraint— in case I and in case II—is always smaller than that without a budget constraint. On the other hand, the standardized rates of litigation (settlement) with or without a budget constraint are the same. These findings can be summarized by the following proposition. Proposition 6. The standardized rate of litigation (settlement) is not affected by the fact that the access to justice of some claimants is hampered by their budget constraints. Conversely, both the absolute rate of litigation and the rate of access to justice are smaller when there is a budget constraint for claimants.                                                              29 A judgment proof problem occurs when a defendant does not pay the appropriate damage award—for instance, because he or she goes bankrupt. See, for instance, Shavell (1986) and Summer (1983). 30 The capacity of the claimant to pay for litigation costs is obviously a further element that plays a role in the credibility of the threat to go to trial. Relaxing the hypothesis that the defendant knows the wealth of the claimant complicates the dynamics of settlement bargaining, without adding any insight useful to the aims of this study. Moreover, it seems sound to assume that the defendant can infer or even know the claimant’s wealth since in the real world, for instance, relations between parties are mediated by legal firms and lawyers that work as (costly) signals of claimant wealth. w Kw c K K p c w c    Pr( ) 1 ( )K Kw c H c   Kc K Kc C A     1 1K Kc H c      212 1 1K Kc c H c          212 1 1 K K c H c   22   Again, analysis of the absolute rates highlights the potential tradeoff between litigation and access to justice: less-stringent budget constraints result in more access to justice, but also in more litigation. On the other hand, since we consider exogenous litigation costs, once in the shadow of the court, “poorer” claimants are no different from “richer” ones, in terms of litigation rate. 3.5. Social tradeoff and legal aid Given the model of the parties’ behavior with budget constraints, the social loss function becomes: . (6) The social cost of dispute resolution when claimants’ behavior is restricted by budget constraints (6) is not necessarily larger than that lacking budget constraints (3). Actually, under budget constraints, there is less litigation—but also, fewer disputes are legally resolved. However, in comparing (3) and (6), it is easy to see that if (6.1.). This condition bears several implications. First, since the standardized rate of litigation is always smaller than 1, when the social cost stemming from a lack of legal remedies is greater than or even equal to the social cost of litigation, the inability of a part of the population to access the judiciary (owing to budget constraints) relates not only to a fairness problem but also to a degradation of social conditions because the social costs of dispute resolution are higher. This suggests that reforms and policies that aim to improve access to justice should focus on legal matters that when unresolved relate to high social costs (i.e., family law matters). From this perspective, legal aid as a form of litigation subsidization is an important issue. Legal aid is the main policy tool to arise in discussions concerning the issue of access to justice. Legal aid—as the provision of assistance to people who are otherwise unable to afford legal representation and access the court system—is specifically regulated in each country, and can differ widely in terms of coverage, amounts, and delivery models. Here, legal aid is assumed to take the form of a state fund that covers litigation costs for claimants who would otherwise be unable to access the judiciary. We choose not to consider potential abuses or moral hazard (i.e., legal aid does not determine any enrichment for recipients). In the case of a claimant’s success in trial, the legal aid amount is returned to the state. Thus, legal aid allows all claimants with insufficient wealth to proceed with their PEV claims. According to the above analysis, since we assume that legal aid is simply a transfer from the state to “poor” claimants, subsidizing litigation is socially efficient as long as the social opportunity-cost of access to justice is greater than the standardized rate of litigation. In particular, we can verify that it is socially efficient in subsidizing both all the socially meritorious claims falling into the case II category, and those included in case I that are characterized by a sufficiently inelastic demand for legal remedies ( ).      . . 1 ( ) 1 1 ( ) ( ) b c K K K H c J H cl H c          . .b c    l J    , KJ c   23   It can remain efficient in subsidizing socially meritorious claims that fall into the case I category, inasmuch as they are characterized by a higher elasticity of demand for legal remedies ( and as long as the standardized rate of litigation remains smaller than the social opportunity-cost of access to justice. (Proofs are provided in Appendix A.4.) Usually, however, legal aid is not a simple transfer; it is also costly for taxpayers. Below, the assumption of legal aid being a pure transfer is relaxed by assuming that legal aid is a net negative externality for taxpayers. The overall cost of legal aid for society is , since the cost of legal aid is equal to the claimant’s litigation cost, weighted by the probability of being “poor” and “losing in trial.” Therefore, the social cost of dispute resolution by using legal aid becomes: (7) It is straightforward to verify that for (7.1.). Condition (7.1.) is obviously stricter than condition (6.1.). Intuitively, when legal aid is socially costly, subsidizing litigation is efficient under a condition that is stricter than when legal aid is a simple transfer. However, condition (7.1.) can be easily interpreted, and it provides further insights. For a given standardized rate of litigation (which is always smaller than 1), it is efficient to remove financial obstacles to access to justice by providing socially costly legal aid, as long as the standardized rate of litigation remains smaller than the overall opportunity cost of access to justice (defined as the ratio of γ to the sum of both social and private litigation costs per dispute). Note that the left term of the inequality (7.1.) is increasing in p and decreasing in . Since claims that are characterized by a higher p both access justice more frequently and are litigated less frequently, condition (7.1.) is more easily satisfied for high-merit legal claims. A comparison of (6.1.) and (7.1.) shows that room for the socially efficient subsidization of litigation is reduced when legal aid is socially costly. However, improving access to justice through partial subsidization continues to be a suitable policy, especially if legal aid systems are able to select claims in terms of legal merit. This suggests that a suitable criterion by which to select the claims to be subsidized should work as a sort of legal-merit filter. Concerning litigation costs, note that lower costs do not necessarily satisfy (7.1.) easily, since the standardized rate of litigation can be either increasing or decreasing in (see subsection 3.2.). Therefore, once again, policies that affect claimant costs should be carefully evaluated. The following proposition summarizes the main insights of this subsection.  , )KJ c  ( ) (1- )K KH c l p c = ( ) (1- ) (1- )aid K Kl H c l p c J    . . >b c aid  >(1- ) K l p c J    Kc Kc 24   Proposition 7. When legal aid is a transfer, it is socially efficient in subsidizing socially meritorious claims that fall into case II, or those falling into case I that are characterized by a sufficiently inelastic demand for legal remedies. Socially meritorious claims falling into case I but characterized by a high elasticity of demand for legal remedies must be subsidized as long as the standardized rate of litigation is sufficiently low. When legal aid is a net externality for society, efficient subsidization is lower, but still positive. In general, it is socially efficient to subsidize litigation, as long as the standardized rate of litigation is lower than the social opportunity-costs of access to justice. Proposition 7 and the analysis provided in subsection 3.2. together suggest that some policies may be socially effective at best, and seriously detrimental at worst. For instance, for claims characterized by a very inelastic demand for legal remedies (i.e., falling into case I, with ), legal aid and increasing litigation costs for claimants represent a policy mix with serious adverse effects, as it would become more difficult to satisfy condition 7.1. Another possible example concerns claims that fall into case I: legal aid could be socially beneficial when defendants’ litigation costs are particularly high, since the right term of condition (7.1.) is decreasing in , even as the left term remains unaffected. Finally, any assessment of policies that influence the judiciary should be based on a careful appraisal of both their effects on the social opportunity-cost of access to justice and their influence on private parties’ behavior. Several policies determine the nature of complex interactions between litigation and access to justice; these interactions deserve particular attention, if unexpected and adverse social results are to be precluded. 4. Conclusions The dynamics of settlement and litigation in the shadow of the court have been discussed extensively by law and economics scholars. Although it is beneficial in terms of deterrence and reducing legal uncertainty by defining legal precedent, litigation is usually perceived as socially wasteful. This is certainly true if the alternative to litigation is another legal solution like settlement. However, if the alternative to litigation is that claimants fail to find any legal remedy to their justiciable problems—or even try to resolve their conflicts by unconventional means—then litigation may represent for society a suitable second-best option. This study investigates the social tradeoff that emerges between litigation and access to justice. While considering access to justice, the results of the current model lead one to question some of the standard insights of the law and economics literature on litigation and settlement rates. In particular, the results indicate that high litigation costs on the part of the claimant discourage both settlement and litigation, that high values at stake ambiguously affect settlement, and that defendant costs possibly have no role in determining the type of legal solution selected by parties. Finally, the effects of changes , KJ c    c 25   in costs and amounts at stake on the rates of settlement and litigation for claims in the shadow of the court depend upon the elasticity of the demand for legal remedies. The framework that derives from the model helps to clarify the effects of a number of policies, in terms of both litigation and access to justice. Policies that affect claimant behavior—such as those pertaining to litigation fees and punitive damages—often exacerbate the social tradeoff between litigation and access to justice. Policies that increase defendant costs—like high defense fees or additional penalties—can either reduce litigation without hampering access to justice, or be completely ineffective. Although improving access to justice will necessarily promote litigation, favoring full and effective access to the judiciary can be socially efficient. On this basis, the current study suggests the use of a new criterion by which to define and filter claims as socially meritorious. Socially meritorious claims are those where a claimant’s marginal propensity to litigate is smaller than the social opportunity-cost of access to justice. Guaranteeing access to justice of socially meritorious claims, even at the cost of promoting litigation, is always efficient. The current study also analyzed the social tradeoff between litigation and access to justice when claimants are hampered in their access to the judiciary because of budget constraints. Both the absolute rate of litigation and the rate of access to justice are smaller when some claimants are limited by their under budget constraints. From a social perspective, it is efficient to remove budget constraints by subsidizing litigation, as long as the standardized rate of litigation is lower than the social opportunity- costs of access to justice. In conclusion, although the model presented in this study simplifies assumptions within a setting that involves standard take-it-or-leave-it screening settlement bargaining, it provides a rather general framework. According to this framework, policymakers with an interest in reducing the social costs of dispute resolution should acquire a profound understanding of how policies influence both the rate of access to justice and the absolute and standardized rates of litigation. The same solution could be socially helpful in certain kinds of claims while being socially detrimental in other kinds of cases. In particular, the social opportunity-cost of access to justice, the claimants’ marginal propensity to litigate, and the elasticity of the demand for legal remedies become factors that allow us to determine the success or failure of a given policy.    26   References Acemoglu, D. and S. Johnson (2005). Unbundling institutions. 113, Journal of Political Economy, 949. AM. BAR ASS’N (1994), Legal Needs and Civil Justice: A Survey of Americans, Major Findings from the Comprehensive Legal Needs Study. www.abanet.org/legalservices/downloads/sclaid/legalneedstudy.pdf. Alcock P.C. (1976). Legal Aid: Whose Problem? 3, British Journal of Law and Society, 151-178. Bar-Gill, O. (2005). The Evolution and Persistence of Optimism in Litigation. 22, Journal of Law, Economics, and Organization 490-507. Bebchuk, L.A. (1984). Litigation and Settlement under Imperfect Information. 15, RAND Journal of Economics, 404- 415. (1988). Suing Solely to Extract a Settlement Offer. 17, Journal of Legal Studies, 437-450. (1996). A New Theory Concerning the Credibility of Success of Threats to Sue. 25, Journal of Legal Studies, 1-26. Bebchuk, L.A. and H.F. Chang. (1996) An Analysis of Fee Shifting Based on the Margin of Victory: On Frivolous Suits, Meritorious Suits, and the Role of Rule 11. 25 Journal of Legal Studies, 371-404. Boyd, C.L. and D.A. Hoffman. (2012). Litigating Toward Settlement. 3, Journal of Law, Economics, & Organization, 2-52. Buchko, K.A., Rekosh, E., and V. Terziev. (2002). “Access to Justice: Legal Aid for the Underrepresented” In Buchko, K.A., Rekosh, E., and V. Terzieva, (Eds.) Pursuing the Public Interest: A Handbook for Legal Professionals and Activists. New York: Columbia Law School. Buck, A., Day, L., Collard, S., Smith, M., and A. Patel. (2009). Outreach advice for debt problems: Research and evaluation of outreach services for financially excluded people. Legal Services Commission. Cappelletti, M., Garth, B., Weisner, J., and K.F. Koch. (1979). Access to Justice. HeinOnline. CEPEJ. (2012). European Judicial Systems. CEPEJ’s Studies No. 18. Council of Europe Publishing. CFCJ. (2012). The Cost of Justice. Weighing the Costs of fair and Effective Resolution to Legal Problems. The Canadian Forum on Civil Justice. Che, Y.K. and J. G. YI. (1993). The Role of Precedents in Repeated Litigation. 9, Journal of Law, Economics and Organization, 399-424. Chung, T.Y, (1996). Settlement of Litigation under Rule 68: An Economic Analysis. 25, Journal of Legal Studies, 261-286. Cooter, R.D., Marks, S., and R. Mookin. (1982). Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior. 11, Journal of Legal Studies, 225-251. Cooter, R.D. and D.L. Rubinfeld. (1989). Economic Analysis of Legal Disputes and Their Resolution. XVII, Journal of Economics Literature, 1067-1097. (1994). An Economic Model of Legal Discovery. 23, Journal of Legal Studies, 435-463. Coumarelos, C., Wei, Z. and A.Z. Zhou. (2006). Justice made to measure: NSW legal needs survey in disadvantaged areas. Access to justice and legal needs, vol. 3, Law and Justice Foundation of NSW, Sydney. Currie, A. (2006). A national survey of the civil justice problems of low and moderate income Canadians: Incidence and patterns. 13, International Journal of the Legal Profession, 217-242. (2009a). The legal problems of everyday life. In R.L. Sandefur (Ed.), Sociology of Crime, Law and Deviance, Vol. 12, 1-41. Bingley, UK: Emerald. 27   (2009b). A lightning rod for discontent: Justiciable problems and attitudes towards the law and the justice system. In A. Buck, P. Pleasence, and N.J. Balmer (Eds.), Reaching further: Innovation, access and quality in legal services, 100-114. Legal Services Research Centre. UK: The Stationery Office. Dari-Mattiacci, G. and B. Deffains. (2007). Uncertainty of Law and the Legal Process. 163, Journal of Institutional and Theoretical Economics, 627-656. Daughety, A.F. and J.F. Reinganum. (1993). Endogenous Sequencing in Models of Settlement and Litigation. 9, Journal of Law, Economics and Organization; 314-48. (1994). Settlement Negotiations with Two Sided Asymmetric Information: Model Duality, Information Distribution, and Efficiency. 14, International Review of Law and Economics, 283-98 (2012). “Settlement” in C.W. Sanchirico (Ed.) Procedural Law and Economics, Vol. 8 Ch. 15, The Encyclopedia of Law and Economics (Second Ed.), Edward Elgar Publishing Ltd. Deffains, B. and C. Desrieux. (2011).Financing Litigation: A Comparative Analysis,” Working Paper, University of Paris II. Eisenberg, T. (1990). Testing the Selection Effect: A New Theoretical Framework with Empirical Tests. 19, Journal of Legal Studies, 337-358. Ellickson, R.C. (1991) Order without law: How neighbours settle disputes. Harvard Univ. Press Farber, H.S. and M.J. White. (1991). Medical malpractice: An Empirical Examination of the Litigation Process. 22, RAND Journal of Economics, 199-217. Fenn, P. and N. Rickman. (2010) The empirical analysis of litigation funding. In M. Tuill and L. Visscher (Eds.) New Trends in Financing Civil Litigation in Europe: A Legal, Empirical, and Economic Analysis. 131-148. Edward Elgar Publishing. Fennell M.A. Using State Legal Needs Studies to Increase Access to Justice for Low-Income Families. 48, Family Court Review, 619-630. Fournier, G.M. and T.W. Zuehlke. (1996). The Timing of Out-of-Court Settlements. 27, RAND Journal of Economics, 310-321. FRA (2011). Access to justice in Europe: An overview of challenges and opportunities European. Union Agency for Fundamental Rights, Publications Office of the European Union. Friedman, B. (2006). Taking law seriously. 4, Perspectives on Politics, 261-276. Friedman, D. and D. Wittman. (2006). Litigation with Symmetric Bargaining and Two-Sided Incomplete Information. 23, Journal of Law, Economics, and Organization, 98-126. Galanter, M. (1983). The Radiating Effects of Courts. 117, Empirical theories about courts, 117-142. (2010) Access to Justice in a World of Expanding Social Capability. 37, Fordham Urban Law Journal, 115-128. Garber, S. (2010). Alternative Litigation Financing in the United States. RAND Institute for Civil - Justice Law, Finance, and Capital Markets Program, Occasional Paper, 2010 Garoupa, N. (2013). Globalization and Deregulation of Legal Services. Mimeo. Garoupa, N., and F.H. Stephen. (2004). Optimal Law Enforcement with Legal Aid. 71, Economica 493- 500. Genn, H. (1999). Paths to justice: What people think about going to law. Oxford: Hart Publishing. Genn, H. and A. Paterson. (2001). Paths to justice Scotland: What people in Scotland do and think about going to law. Portland, OR: Hart Publishing. Gertner, R.H. and G.P. Miller. (1995). Settlement Escrows. 24, Journal of Legal Studies, 87-122. 28   Glaeser, E., Scheinkman, J. and A. Shleifer. (2003) The injustice of inequality. 50, Journal Monetary Economics, 199-222. Gould, J.P. (1973). The Economics of Legal Conflicts. 2, Journal of Legal Studies, 279-300. Gross, S.R. and K.D. Syverud. (1991). Getting to No: A study of Settlement Negotiations and the Selection of Cases for Trial. 90 Michigan Law Review, .319-393. Hadfield G.K. (2000) The Price of Law: How the Market for Lawyers Distorts the Justice System. 98, Michigan Law Review, 953-1006. (2008). The levers of legal design: Institutional determinants of the quality of law. 36, Journal of Comparative Economics, 43–73. (2010). Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans. 37, Fordham Urban Law Journal, 129-150. (2013). The Cost of Law: Promoting Access to Justice through the Corporate Practice of Law. Bepress. Hay, B.L. and K.E. Spier. (1998). “Settlement of Litigation” in P. Newman (Ed.), The New Palgrave Dictionary of Law and Economics, Macmillan Reference Limited, Vol. 3, 442-451. Hylton, K.N. and H. Lin. (2010). Trial Selection Theory: A Unified Model. BU School of Law Working Paper, 10-12. Hodges, C., Vogenauer, S., and M. Tulibacka. (2009). Costs and funding of civil litigation: A comparative study. Oxford Legal Research Paper Series, Paper No 55/2009. Huang, K.C., Chen, K.P., and C.C. Lin. (2010). An Empirical Investigation of Settlement and Litigation - The Case of Taiwanese Labor Disputes. 7, Journal of Empirical Legal Studies, 786–810. Katz, A. (1990). The Effect of Frivolous Lawsuits on the Settlement of Litigation. 10, International Review of Law and Economics, 3-27. Kessler, D. (1996). Institutional Causes of Delay in the Settlement of Legal Disputes, 12, Journal of Law, Economics, and Organizations, 432-460. Kritzer, H.M. (2008) To Lawyer or Not to Lawyer: Is that the Question? 5, Journal of Empirical Legal Studies, 875-906. (2010). Examining the Real Demand for Legal Services. 37, Fordham Urban Law Journal, 255- 272. Landes, W.M. (1971). An Economic Analysis of the Court. 14, Journal of Law and Economics, 61-107. LEGAL SERVS. CORP. (2005). Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans 2005.www.lsc.gov/sites/default/files/LSC/images/justicegap.pdf (2009). Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low- Income Americans, 2009. www.lsc.gov/JusticeGap.pdf . Marshall, T.H. (1950). Citizenship and Social Class, and Other Essays. Cambridge: Cambridge University Press. Mattei, U. (2006). Access to Justice, Costs, and Legal Aid. XVII Congress of the International Academy of Comparative Law. Utrecht, The Netherlands Molot, J.T. (2010). Litigation Finance: A Market Solution to a Procedural Problem. 99, Georgetown Law Journal, (2010), 65-115. Mnookin, R.H. Why Negotiations fail: An Explorations of Barriers to the Resolution of Conflicts. 8, Ohaio state Journal on Dispute Resolution, 235-251. Nalebuff, B. (1987). Credible Pretrial Negotiation. 18, RAND Journal of Economics, 198-210. 29   North, D.C. (1989). Institutions and economic growth: an historical introduction.9, World Develop, 1319-1332. Pleasence, P., Balmer, N. J., and A. Buck, (2006). Causes of action: Civil law and social justice (2nd ed.). London: Legal Services Commission. (2008). The health cost of civil-law problems: Further evidence of links between civil-law problems and morbidity, and the consequential use of health services. 5, Journal of Empirical Legal Studies, 351-373. Pleasence, P., Balmer, N. J., Buck, A., O’Grady, A., and H. Genn. (2004). Civil law problems and morbidity. 58, Journal of Epidemiology and Community Health, 552-557. Pleasence, P., Balmer, N.J., Buck, A., Smith, M., and A. Patel. (2007). Mounting problems: Further evidence of the social, economic and health consequences of civil justice problems. In Pleasence, P., Buck, A., and N.J. Balmer, (Eds.), Transforming lives: Law and social process, 67-92. London: Legal Services Commission. P’ng, I.(1983). Strategic Behavior in Suit, Settlement, and Trial. 14, Bell Journal of Economics, 539- 550. Posner, R.A. (1973). An Economic Approach to Legal Procedure and Judicial Administration. 2, Journal of Legal Studies, 399-458. (1998). Creating a Legal Framework for Economic Development. 13, The World Bank Research Observer, 1-11. Polinsky, A.M. and D.L. Rubinfeld. (1993) Sanctioning Frivolous Suits: An Economic Analysis. 82 Georgia Law Journal, 397-436. (1988). The Deterrent Effect of Settlement and Trial. 8, International Review of Law and Economics, 109-116. Priest, G.L. and B. Klein. (1984). “The Selection of Disputes for Litigation. 13, Journal of Legal Studies, 1-56. Ramseyer, J.M. and E.B. Rasmusen. (2010). Comparative Litigation Rates. Harvard John M. Olin Discussion Paper Series, No. 681. Ringanum, J.F. and L.L. Wilde. (1986). Settlement, Litigation, and the Allocation of Litigation Costs. 17, RAND Journal of Economics, 557-566. Rhode, D.L. (2004). Access to justice. Oxford University Press, USA. Rodak, M. (2006). It’s About Time: A Systems Thinking Analysis of the Litigation Finance Industry and its Effect on Settlement. 155, University of Pennsylvania Law Review, 503-535. Rosemberg, D. and S. Shavell. (1985). A Model in which Suits are Brought for their Nuisance Value. 5, International Review of Law and Economics, 3-13. Rubinstein, A. (1982). Perfect Equilibrium in a Bargaining Model. 50, Econometrica, 97-110. Saraceno, M. (2008) Access to Justice and Litigation Trade-Off: A Theoretical Analysis. Paolo Baffi Centre Research Paper No. 2008-29; CLEA 2008 Meetings Paper. Shavell, S. (1982). The Social versus Private Incentive to Bring a Suit in Costly Legal System. 11, Journal of Legal Studies, 333-340. (1986). The Judgment Proof Problem. 6 International Review of Law and Economics, 45-58. (1995). Alternative Disputes Resolution: An Economic Analysis. 24, Journal of Legal Studies, 1- 28. (1997). The Fundamental Divergence between the Private and the Social Motive to Use the Legal System. 26, Journal of Legal Studies, 575-616. 30   (1999). The Level of Litigation: Private versus Social Optimality of Suit and of Settlement. 19, International Review of Law and Economics, 99-115. Schlesinger, R.B. (1988). Comparative law: cases, text, materials. Foundation Press. Schwartz, W.F. and Wickelgren, A.L. (2009). Advantage Defendant: Why Sinking Litigation Costs Makes Negative Expected Value Defenses, but not Negative Expected Value Suits, Credible. 38, Journal of Legal Studies, 235-253. Schweizer, U. (1989). Litigation and Settlement under Two Sided Incomplete Information. 56, Review of Economic Studies, 163-177. Silver, C. (2001). Does civil justice cost too much? 80, Texas Law Review, 2073-2114. Sommerlad, H (2004). Some Reflections on the Relationship between Citizenship, Access to Justice, and the Reform of Legal Aid. 31, Journal Law and Society, 345-368 Spier, K.E. (1992). The Dynamics of Pretrial Negotiation. 59, Review of Economic Studies, 93-108. (2007). “Litigation” in M. Polinsky and S. Shavell, (Eds.), Handbook of Law and Economics, Elsevier, 259-342. Stratton, M., and T. Anderson. (2008). Social, economic and health problems associated with a lack of access to the courts. Edmonton: Canadian Forum on Civil Justice. Summers, J. (1983). The Case of the Disappearing Defendant: An Economic Analysis. 132 University of Pennsylvania Law Review, 145-185 Trubek ,D.M., Sarat, A., Felstinert, W.L.F., Kritzert, H.M., and J.B. Grossmant. (1983). Costs of Ordinary Litigation. 31, UCLA Law Review, 72-127. UNDP. (2004). Access to Justice: Practice Note. United Nations Development Program Publications. (2010). Integrating Legal Empowerment of the Poor in UNDP’s work A Guidance Note. United Nations Development Program Publications. U.S. Deparment of Justice (2013). The Access to Justice Initiative of the U.S. Department of Justice. Access to Justice Accomplishments. Available at http://www.justice.gov/atj/accomplishments.pdf Varano, V. And A. De Luca. (2007). Access to Justice in Italy. 7, Global Jurist (Advances, art. 6). Wang, G.H., Kim, J.Y., and J.G. YI. (1994). Litigation and Pretrial Negotiation under Incomplete Information. 10, Journal of Law, Economics and Organization; 187-200. World Bank. (2006). World Development Report 2006: Equity and Development. New York: Oxford University Press Yildiz, M. (2003). Bargaining without a Common Prior - An Immediate Agreement Theorem. 71, Econometrica, 793-811. 31   Appendix A.1 Changes in the parameters can shift the analysis from case I to case II and vice versa. Note that the access-to justice threshold (hereafter, ) changes more sharply than the trial selection threshold (hereafter, ) for a given change in . For changes in , the does not change while moves. In addition, recalling that can be written as and as , changes in A move both the thresholds (both are decreasing in A). The following observations can be derived:  Significant increases in shift case I to case II. Significant decreases in shift case II to case I.  Significant decreases in shift case I to case II. Significant increases in shift case II to case I.  With respect to A, generally moves faster than . Actually, moves slower than iff , ( - setting overall costs equal to 1 this means ). This implies that significant decreases in A generally shift case I to case II.  Since case II corresponds to the parameter restriction , significant increases in A shift case II to case I ( ). Intuitively, it is possible understanding how changes in A shift the analysis from a case to the other moving on the Figure 2 from NE to SW for increases in A and from SW to NE for decreases in A. KJ c  (1 ) K K c c T c c        Kc c J  T  Kc K C A (1 ) K K c c c c      K K C C A C C      Kc Kc c c J  T  J  T  Kc c  iff 2( ) ( )²K K K T J c c c c c c A A               3 Kc c  / ( )K Kc c c c   J T A A        32   A.2 Partial derivatives of both absolute and standardized rates of access to justice, settlement and litigation are calculated with respect to the parameters of the model for cases I and II in Table A1 and A2, respectively. Table A1. Comparative statics: Case I Case I  Table A2. Comparative statics: Case II Case II        We focus on Table A1. Uncertain signs of case I are discussed below. First column. Signs of partial derivatives of the standardized rates of settlement and litigation with respect to K’s cost are uncertain . Focus on : denominator is positive and       0 2 1 3 0 1 3 1 1 <0 1 0 1 0 1 0 1 K K K K K K K K K K s c c c s c c c c c s ss c c c l c c c                                                       0 2 2 1 3 2 0 1 2 0 1 1 1 1 2 2 2 0 1 1 / / 0 K K K K K K K K K K K K K s J c c c c c c c c c c s J c c c c s J s J s J l J c c c c                                                  3 2 / 1 2 1 0 2 1 1 K K K K K l J c c c c c c c                              0 2 1 3 0 1 3 3 0 0 1 1 1 >0 1 0 1 1 0 1 1 0 1 / 0 / <0 / >0 / / 0 K K K K K K s c c c s c c c c c s ss c c c c c l c c c s J s J c c s J s J c c s J s J c c l J l J c c                                                                                            0 2 2 1 3 0 1 3 3 0 1 20 0 1 1 21 1 0 1 0 1 0 1 0 1 0 1 * * 0 * * 0 K K K K K K K K K K s c c c A A A c c c cs A A c c s s c c cs A A A A A c c c cl A A c c s J s J J s J A A A s J s J J s J A A A s J s J s J l A A A                                                                               1 2 0 / * * 0 J A l J l J J l J A A A                    1 0 / 1 > 0 2 / 1 < 0 2 0 K K K K K K l c c s J c l J c s c c                        0 0 0 / 0 s c l c s J c l J c                       2 0 1 0 1 0 2 / 1 0 2 K K K K K cs A A cl c A A s J c A A l J c A A                      / / 0 K K l J s J c c        / K l J c   33   the sign is driven by the numerator. . Recalling that and defining the absolute value of the elasticity of the “demand for justice” as , we can rewrite and then This means that the standardized rate of litigation decreases with an increase in claimant's litigation cost only if the demand for justice is sufficiently inelastic. For an elastic demand for justice, the standardized litigation rate always increases when claimants’ costs increase. Actually, increasing claimants’ costs reduce both the amount of disputes that go in trial and the amount of disputes that access justice. This combined action can increase the standardized (and observable) rate of litigation. The opposite reasoning is valid for the standardized rate of settlement. Third column. . Solving for , it becomes where . is represented on the -axes in the Figure A1 (green curve). Figure A1. Effects of changes in on the absolute rate of pooling settlement   0 for <1-3 / 0 for =1-3 0 for >1-3 K K K K c c l J c c c c c          1 KJ c  , K K J c K cJ c J       1 , ,1K KK J c J cc                    1 , 1 , 1 , 0 for < 1 2 <1 / 0 for 1 2 <1 0 for 1 2 <1 K K K J c J c K J c c c l J c c c c c                                         2 20 2 0 for < 1 0 for < 1 0 for < 1 K K K K K K K K K c c c c c s c c c c c A c c c c c                        c 1 2 0 1 2 1 2 0 for >{ ( ), ( )} 0 for { ( ), ( )} 0 for <{ ( ), ( )} K K K K K K c f c f c s c f c f c A c f c f c          2 2 1 2 1 1 ( ) (-2 (-4 1) - 2 1), ( ) - (2 (-4 1) 2 -1) 2 2 K K K K K K K K K K f c c c c f c c c c c c         1 2{ ( ), ( )} K Kc f c f c  Kc c A 34   The dashed dark line in the graph represents the elasticity of the demand for legal remedies that can be measured on the y-axis. An increase in the amount-at-stake decreases the rate of pooling settlement only when claimant’s costs are low enough (approximately smaller than 0.2)/the demand for legal remedies is sufficiently inelastic (approximately smaller than 0.3). When the demand is elastic (or with unitary elasticity), an increase in the amount-at-stake enlarges the rate of pooling settlement for every value of the defendant cost. Since , it is straightforward that the parameter restriction in terms of is more binding. To have a settlement rate decreasing in A, K’s cost/the elasticity of the demand for legal remedies has to be lower than that one to have a rate of pooling settlement decreasing in A. Therefore, an increase in the amount-at-stake reduces the rate of settlement only when claimant cost is very low/demand is strongly inelastic. Obviously, when . Finally, when the demand for legal remedies is elastic (or with unitary elasticity), an increase in the amount-at-stake enlarges the rate of settlement for every value of litigation costs. . Solving for , it becomes .   Recalling that , the parameter restriction can be written also in terms of elasticity of the demand for legal remedies: where . This means that the standardized rate of litigation increases with an increase in amount-at-stake only if the elasticity of the demand for justice is sufficiently low (not necessarily inelastic). For a sufficiently elastic demand for justice, the standardized litigation rate can be decreasing in A. The opposite reasoning is valid for the standardized rate of settlement.          3 3 3 0 for < 1 0 for < 1 0 for < 1 K K K K K K K K K c c c c c s c c c c c A c c c c c                        Kc 0 s A    0 0 s A                     0 for > 1 2 1 / 0 for = 1 2 1 0 < 1 2 1 K K K K K K K K K K K K c c c c c c l J c c c c c c A c c c c c c                        c                  1 1 1 0 for < 3 1 1- 3 1 / 0 for = 3 1 1- 3 1 0 for > 3 1 1- 3 1 K K K K K K K K K c c c c l J c c c c A c c c c                    1, ,1K KK J c J cc           , , , 0 for > 1 / 0 for 1 0 for 1 K K K J c J c J c l J A                  21 (c + 18c +9c +1+1) 1 2c +4        35   A.3. . Substituting by l and then by social cost of dispute resolution can be rewritten as for case I and for case II. Partial derivatives with respect to J are and for case I and II respectively. By replacing again in the expressions above, the conditions to have the social cost of dispute resolution decreasing in J are: and for case I and II respectively. The two conditions correspond to a unique condition equal for both cases: . A.4. Socially meritorious claims have been defined as those characterized by . It is socially efficient a complete subsidization when (6.1). For case II which is always larger than . Therefore it is always efficient subsidizing all socially meritorious claims falling in case II. For case I, is larger than for corresponding to (see A.1.). Therefore, for socially meritorious claims with elasticity of the demand for legal remedies smaller than  condition (6.1) is always verified. For claims falling in case I and characterized by elasticity equal to /larger than ,  condition (6.1) has to be satisfied in order to have efficient subsidization.  1 Jl     1Kc J     21 2 12 JJ c       2 1 1 2 JJ        32 0J c J            0J J        1 KJ c    31 Kc c J           1 Kc J        0 iff K l J c         Kl c     l J   1 K K l c c      1 2 1 Kl J c    3 1K Kl c c c           2 1 1 11 2 K K l J c c c       <1-3 Kc c  , <KJ c    
work_ihf3n35hcfdefafpwews72qyqa	----	Justice in Residency Placement, Mar 03 ... AMA Journal of Ethics Virtual Mentor. March 2003, Volume 5, Number 3. doi: 10.1001/virtualmentor.2003.5.3.pfor1-0303 Policy Forum Justice in Residency Placement Bioethicist D. Michah Hester questions the current residency match program and suggests that residents be placed according to random assignments. Timothy F. Murphy, PhD Residency training is an essential component of medical education and is required in most jurisdictions for licensure as an independent medical practitioner. In the United States, a matching system assigns approximately 23,000 applicants to residency training programs in the areas of pediatrics, obstetrics and gynecology, internal medicine, and the rest. The system has been in place since 1952 and is overseen by the National Residency Match Program, a non-profit organization. Rank order lists are at the heart of the Match. An applicant picks a number of residency programs and ranks them according to preference. The residency program prepares a similar list, ranking the candidates it most wants in its program. A computer program compares the rankings and makes assignments according to a certain algorithm. These assignments are then announced to all parties on specific days. This system is effective in a number of ways. First of all, it standardizes the timetable for decisions; applicants are in no position to tie up offers while waiting to hear from another institution, and institutions are not held captive in making assignments while waiting to hear from particular parties. A bioethicist at Mercer University, D. Micah Hester, has recently argued that the match system is incompatible with the core values of medicine [1]. Hester's chief criticism is that the current match program embodies a competitiveness that corrupts core values in medicine. According to Hester the competition involved in the Match encourages values that are antithetical to the medical profession. He says that "so long as competitive practices run rampant in institutionalized activities such as residency matching, medicine simply will never fully meet the concerns of the people who need its help and a society that needs its comfort" [2]. In short, medicine is hyper-competitive, the Match is part of this syndrome, and we all suffer as a result. Hester proposes an alternative to the Match as it currently exists: random assignment. Under his proposal, all candidates would stand an equal chance of being selected for each residency opening in a designated discipline. For example, each candidate interested in a pediatrics residency would be assigned at random to one of the available slots in pediatrics residencies around the country. There would be no rank order lists and no communication between candidates and institutions. This approach would—as Hester does not fail to note—eliminate personal choice altogether. In addition to curbing the competition involved in jockeying for candidates and positions, Hester says this approach would free up new resources and energies: "Eliminating the competitive match system would provide residency programs and candidates with the resources to work on other more pressing issues. More time, energy, and money could go to support such concerns and activities as better salaries and hours for residents, outreach programs, deeper professionalism, and ethics and humanities education—concerns and activities that go to the heart of moral medical care" [3]. This is a drastic proposal and, I think, unwarranted both in terms of damaging effects on residency programs and the undermining of personal choice. Medical residencies are not equal in terms of what they prepare their residents to do and how well they achieve their goals. There is a social division of labor in terms of what residencies are training their physicians to do, and they are 72 72 file:///2003/03/toc-0303.html not interchangeable replicas of one another. Some residencies are much more likely than others to encourage their trainees to engage in clinical research, to assume academic posts, and to go on to leadership roles in the profession. Others are much more likely to channel their trainees into certain kinds of practice, for example, working in institutions that provide large amounts of charitable care. It does matter which students are tracked into residencies because these programs train particular people whose knowledge and skills are fundamental to the design of the health care system, produce trainees who are expert in the management of certain kinds of patients, and develop the skills of particular people who will fill specific roles in the delivery of health care. It is reasonable to believe that random assignment of residents would undercut this division of labor and compromise the ability of residencies to achieve their important social goals. When it comes to the fate of residents themselves, there are important reasons to avoid complete randomness in residency assignment. For example, many residents are married and have children. Some residents have primary responsibility as caregivers for aging or sickly parents. It would be a fundamental hardship to say that these residents should have no say whatsoever in where they train. A decision to pursue a particular residency is not only about where one continues medical education; it also reflects choices about one's familial and financial interests. For some residents it would be a hardship in the extreme to move their families from Florida to Alaska or to relocate them to rural programs far from their families. In another instance, it would be an undue economic hardship to ask some residents to shoulder the unwanted costs of residency in Manhattan when they actually prefer less costly living in a smaller city in the South. These kinds of complications could be multiplied without much difficulty. That some residencies last 6 and 7 years makes it all the more important to recognize that random assignment in residency could create and magnify all kinds of problems for trainees. Hester does acknowledge that some residents would be resentful about assignments given to them by chance, but he thinks that this resentment would be offset by the value of being exposed to trainees from all across the country. He says that residency programs with their supply of trainees chosen at random "would benefit from having fully supplied medical staffs and residents from an array of educational backgrounds, and the diverse residents could learn from each other while providing care for otherwise underserved patients." On the flip side of the equation, if it is in fact the case that some residency programs are better than others, these so-called "top" programs would have the opportunity to work with a variety of residents from different schools and backgrounds, residents who might not otherwise have had the opportunity to learn from the "best." In response, it must be said that it is not clear how random assignment would necessarily improve care for underserved patients. A lottery might help distribute talent more broadly across residencies, but by itself this would not mean that underserved patients would necessarily receive better care. If "the best" medical graduates do not like their placement, lingering resentment could work to sabotage the quality of patient care they deliver as residents. Hester goes on to compare his proposal for random assignment to the kind of drafting that occurs in professional sports. Many professional athletes are assigned to teams without their having a say in the matter—and their families and living preferences are not taken into consideration. Hester wonders why this same attitude—it is enough for small town heroes to play in the National Football League no matter where they end up—should not also prevail in medicine. In other words, the rewards of being in medicine should override any specific concerns about where one wants to live and train. It is not clear, however, that random assignment would promote selfless values in physicians any more than it does in professional football recruits. Random assignment would undoubtedly disrupt important interests for more than a few residents—a disruption which could easily undermine selfless attitudes. Moreover, it is certainly not clear that random assignment would make trainees better diagnosticians, better therapists, or even help them exhibit more humane behaviors toward patients. Simmering resentment could corrode humane values and foster poor clinical habits just as badly—if not more so—than the competitive aspects of the Match. Even professional football players—the best of them anyway—try to control where they play, especially those concerned with the rewards of league victories, championship rings, and commercial endorsements. Over and above the effect random assignment would have on residents, a lottery system could also be expected to undercut motive and effort among medical students. Certain medical school graduates are better than others with regard to their capacities in diagnostics, in therapeutic judgments, and interpersonal skills. It is to be wondered what incentive there would be for medical students to strive toward superior achievement if residency assignment turned a blind eye toward all accomplishment and occurred only by chance. It might well be true that some students would go 73 73 the extra mile in medical school, those who do so for personal satisfaction or some other intrinsic reward. However, it is hard to believe that performance would not suffer if extra efforts could not, could never help in securing a preferred residency. And, to continue the theme of performance for a moment, it is hard to see that one would be doing the poorest performing students any favor by placing them in the most demanding residencies in the nation. By extension, it would be doing little favor to burden highly functional residencies with applicants who have done little more than stumble and limp their way to a diploma. After all, it is not only talent that would be randomly distribute, a lottery would distribute the opposite of talent—whatever one wants to call that—as well. Hester does acknowledge that random assignment would mean the loss of personal choice, but he believes this loss is acceptable because of the way in which residency competition would be undercut. It is simply untrue, of course, that once some resources are freed up that these would flow automatically to more noble causes. For example, physicians involved in overseeing residency recruitment—interviews, answering questions, preparing promotional materials, ranking candidates—might just as easily turn their attention to clinical revenue as to improving humanistic education of residents. Lastly, there is also an important difficulty in Hester's claim that the Match operates in a way that is inconsistent with the core values of medicine. The preservation of choice is one core value in medicine, one that undergirds patient- physician encounters. The American Medical Association Principles of Medical Ethics asserts that "A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care" [4]. In other words, choice is a core value of medicine because it is important to both patient and physician alike to enter into mutually satisfactory relationships. To put it another way, except for emergency or court-ordered treatment, health care relationships should not be random or involuntary. It is hard to understand why this principle—so important to health care relationships—should not also extend to educational relationships. In one study of residency applicants, only 4 percent of the respondents believed that the Match should be completely overhauled [5]. Whatever the problems of the Match system are, it is not clear that residency assignments made at random will solve them without also causing broad, systemic problems on a large scale. It is one thing to dream of medicine that is shorn of the worst effects of competition and that is fully committed to ethics, professionalism, and humanities. There is no reason, though, to think that a lottery system would help achieve these goals in any meaningful way. There is no obvious reason to think that revolution rather than reform should be the appropriate response to problems in the Match. References 1. Hester DM. Rethinking the residency matching process and questioning the value of competition in medicine. Acad Med. 2001;76:345-347. PubMed Google Scholar 2. Hester, 345. 3. Hester, 346. 4. American Medical Association. Principles of medical ethics. June 2001. Available at: http://www.ama- assn.org/ama/pub/category/2512.html. Accessed February 18, 2003. 5. Anderson KD, Jacobs DM, Blue AV. Is match ethics an oxymoron? Am J Surg. 1999;177:237-239. View Article PubMed Google Scholar Timothy Murphy, PhD, is professor of philosophy in the biomedical sciences in the Department of Medical Education at the University of Illinois College of Medicine in Chicago. He is a 2002-2003 visiting scholar in the AMA's Institute for Ethics. The viewpoints expressed on this site are those of the authors and do not necessarily reflect the views and policies of 74 74 https://www.ncbi.nlm.nih.gov/pubmed?term=2001%5Bpdat%5D+AND+Rethinking+the+residency+matching+process+and+questioning+the+value+of+competition+in+medicine&TransSchema=title&cmd=detailssearch https://scholar.google.com/scholar_lookup?title=Rethinking%20the%20residency%20matching%20process%20and%20questioning%20the%20value%20of%20competition%20in%20medicine&author=Hester%20DM.&publication_year=2001 http://www.ama-assn.org/ama/pub/category/2512.html http://www.ama-assn.org/ama/pub/category/2512.html https://doi.org/10.1016/S0002-9610(99)00019-7 https://www.ncbi.nlm.nih.gov/pubmed?term=1999%5Bpdat%5D+AND+Is+match+ethics+an+oxymoron%3F&TransSchema=title&cmd=detailssearch https://scholar.google.com/scholar_lookup?title=Is%20match%20ethics%20an%20oxymoron?&author=Anderson%20KD,%20Jacobs%20DM,%20Blue%20AV.&publication_year=1999 the AMA. © 2003 American Medical Association. All Rights Reserved. 75 75 Local Disk Justice in Residency Placement, Mar 03 ... AMA Journal of Ethics 
work_ihw4hrtj6fbhxf5i24z3lfjnu4	----	[PDF] Justice Under Uncertainty | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1287/mnsc.2016.2535 Corpus ID: 3631433Justice Under Uncertainty @article{Cettolin2017JusticeUU, title={Justice Under Uncertainty}, author={E. Cettolin and A. Riedl}, journal={CESifo Working Paper Series}, year={2017} } E. Cettolin, A. Riedl Published 2017 Economics, Computer Science CESifo Working Paper Series An important element for the public support of policies is their perceived justice. At the same time most policy choices have uncertain outcomes. We report the results of a first experiment investigating just allocations of resources when some recipients are exposed to uncertainty. Although, under certainty almost all uninvolved participants distribute resources equally, they exhibit remarkable heterogeneity in just allocations under uncertainty. Moreover, uninvolved participants allocate on… Expand View on SSRN cris.maastrichtuniversity.nl Save to Library Create Alert Cite Launch Research Feed Share This Paper 21 CitationsHighly Influential Citations 1 Background Citations 8 Methods Citations 2 View All 21 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Giving in the face of risk E. Cettolin, A. Riedl, Giang Tran Economics, Psychology 2016 23 PDF View 3 excerpts, cites background Save Alert Research Feed Tilburg University Giving in the face of risk E. Cettolin, A. Riedl, Giang Tran 2018 PDF View 3 excerpts, cites background Save Alert Research Feed Fairness views and political preferences: evidence from a large and heterogeneous sample Daniel Muller, S. Renes Economics 2020 PDF Save Alert Research Feed Fairness views and political preferences - Evidence from a large online experiment Daniel Muller, S. Renes Political Science 2017 27 PDF View 1 excerpt, cites methods Save Alert Research Feed Fairness Views and Political Preferences - Evidence from a representative sample M. Daniel, S. Renes Economics 2019 9 PDF View 2 excerpts, cites background Save Alert Research Feed Risking Other People's Money: Experimental Evidence on the Role of Incentives and Personality Traits O. Andersson, H. Holm, J. Tyran, E. Wengström Economics 2020 6 Save Alert Research Feed Unequal Chances: Ex Ante Fairness and Individual Control Leticia Micheli, Nickolas Gagnon 2020 View 1 excerpt, cites background Save Alert Research Feed A method to elicit beliefs as most likely intervals K. H. Schlag, J. J. V. D. Weele Mathematics 2015 18 Highly Influenced PDF View 6 excerpts, cites background and methods Save Alert Research Feed The role of ignorance in the emergence of redistribution A. Gerber, A. Nicklisch, S. Voigt Economics 2019 2 Save Alert Research Feed Unequal chances: ex ante fairness and individual control Leticia Micheli, Nickolas Gagnon Economics, Medicine Scientific reports 2020 PDF Save Alert Research Feed ... 1 2 3 ... References SHOWING 1-10 OF 94 REFERENCES SORT BYRelevance Most Influenced Papers Recency What Is Fair? Experimental Evidence D. Dickinson, Jill Tiefenthaler Economics 2000 104 PDF View 1 excerpt Save Alert Research Feed Just luck: an experimental study of risk taking and fairness A. Cappelen, James Konow, Erik Ø. Sørensen, B. Tungodden Political Science, Economics 2010 290 Highly Influential PDF View 4 excerpts, references background and methods Save Alert Research Feed Which Is the Fairest One of All? A Positive Analysis of Justice Theories James Konow Economics 2003 695 View 3 excerpts, references methods and background Save Alert Research Feed Biased Judgments of Fairness in Bargaining Linda Babcock, G. Loewenstein, Samuel Issacharoff, Colin Camerer Economics 1995 544 View 1 excerpt, references background Save Alert Research Feed Self-interest and fairness: self-serving choices of justice principles Ismael Rodríguez-Lara, Luis Moreno-Garrido Economics 2012 59 View 1 excerpt, references background Save Alert Research Feed Fair Shares: Accountability and Cognitive Dissonance in Allocation Decisions James Konow Economics 2000 727 Highly Influential PDF View 5 excerpts, references background and methods Save Alert Research Feed Dictating the Risk: Experimental Evidence on Giving in Risky Environments J. M. Brock, Andreas Lange, Erkut Y. Ozbay Economics 2013 166 PDF View 3 excerpts, references background Save Alert Research Feed The Pluralism of Fairness Ideals: An Experimental Approach Alexander W. Cappelen, Astri Drange Hole, Erik Ø. Sørensen, B. Tungodden Economics 2005 586 Highly Influential PDF View 9 excerpts, references results and background Save Alert Research Feed Interindividual Differences in Opinions about Distributive Justice E. Schokkaert, B. Capéau Economics 1991 49 View 2 excerpts, references methods and background Save Alert Research Feed Strategic Choices for Redistribution and the Veil of Ignorance: Theory and Experimental Evidence A. Gerber, A. Nicklisch, S. Voigt Economics 2013 7 PDF View 3 excerpts, references background Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract 21 Citations 94 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_ikhwgdtvbbhappgrljju4bdks4	----	08-0536_p ENVIRONMENTAL JUSTICE Volume 1, Number 3, 2008 © Mary Ann Liebert, Inc. DOI: 10.1089/env.2008.0536 The Value of Environmental Justice Bill E. Lawson ABSTRACT Environmental justice, at least, entails preserving the environment as a global entity, but also making those persons who feel, have felt, have been, or are victims of environmental crimes and atrocities feel as if they are part of the solution as full members of the human community and not just the environmental dump- ing ground for the well-off. 1 INTRODUCTION FOR THIS ARTICLE, we were asked to give our thoughtsas to what Environmental justice entails. As a Black American, who is also a professor and academically trained philosopher, the question of what environmental justice entails looms large. Since my area of academic ex- pertise is African American philosophy, I have spent the past 25 years looking at the manner in which racism, sex- ism, and classism impacts on the lives of not only blacks, but also the poor. I see philosophy as being interested in questions of value. Why should we value the well being of other humans? Why should we value life itself? Why should we value the environment? There are many an- swers to these questions. The fact that there are many an- swers does not mean that there is no answer. Some an- swers are clearly bad. It does not or would not take a trained philosopher to see that some of the answers are bad answers. The philosophical goal is to mark out the bad answers and to demonstrate why they are bad. Then we must mark the competing good answers and examine these answers with an eye to the past and to the future of this planet. This is very important if we want public policies that respect the histories of all environmental stakeholders involved. Examining these arguments and claims, I think is one of the roles of the philosopher in the area of environmental justice. DISCUSSION I want to start with the Environmental Protection Agency’s definition of environmental justice: Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, culture, education, or in- come with respect to the development, implemen- tation, and enforcement of environmental laws, reg- ulations, and policies. Fair Treatment means that no group of people, including racial, ethnic, or socioe- conomic groups, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commer- cial operations or the execution of federal, state, lo- cal, and tribal environmental programs and policies. Meaningful Involvement means that: (1) potentially affected community residents have an appropriate opportunity to participate in decisions about a pro- posed activity that will affect their environment and/or health; (2) the public’s contribution can in- fluence the regulatory agency’s decision; (3) the con- cerns of all participants involved will be considered in the decision-making process; and (4) the decision- makers seek out and facilitate the involvement of those potentially affected.1 I want to focus on item number 3 in the section Mean- ingful Involvement as my starting point for what envi- ronmental justice entails. I argue that environmental jus- tice entails, at least, preserving the environment as a global entity but also making those persons who feel, have felt, and have been victims of environmental crimes and atrocities feel as if they are part of the solution as full members of the human community and not the dumping ground for the rest of us. Dr. Lawson is professor of philosophy at the University of Memphis in Memphis Tennessee. 1 �http://www.epa.gov/compliance/resources/faqs/ej/ index.html� (2008). I will use one of the major problems facing environ- mentalists as my focal point. The problem is the bringing together of diverse environmental stakeholders to resolve issues regarding the environment. This is particularly dif- ficult when environmental policies appear to be rooted in class or race divisions. That is, where members of poor or raced groups have been the victims of environmental policies that have benefited the well-off. (Lawson, 2006) I want to focus, in this article, on environmental stake- holders of color, particularly African Americans in the United States. Not because I think that their plight is more important than that of the poor in general, but because the African American experience in the United States has been my area of study. The African American experience is unique in that their history must be situated in a state that political and so- cial policies are supposedly underpinned by liberal tenets that are meant to garner respect for worth and autonomy of each individual. It is clear that these liberal tenets were not applied to the social and political experiences of African Americans for most of their tenure in the United States. Not only have African Americans had to fight for application of the liberal tenets to their status as citizens, these same tenets have often been used against them. I have argued elsewhere how the appeal to protection of private property has been used to keep African Ameri- cans out of white communities and how laws have been enforced to ensure that white autonomy has been pro- tected and respected. The history of the environmental policies attests to the manner in which African Americans are not respected as full members of the political order. Robert Bullard and others have documented the man- ner in which neighborhoods of persons of color have been the site of environmental contamination. Not only have these communities been sites of contamination but also when it comes time to clean up the sites, the government is slow or reluctant to do so. These actions by state and federal officials have led to feelings of mistrust between these communities and the government at all levels. There is no wondering why there would be mistrust between members of communities of color and the local, state, and federal government as well as environmentalists who of- ten see the land that members of communities of color live on as not the part of the environment that has to be protected. The actions of these groups have fostered a sense of mistrust between these communities and those agencies and groups that purport to be concerned with the environment. This mistrust is especially problematic when the divisions have been race-based. Race based dis- crimination has been a long-standing problem for African Americans. Because of the history of racism, African Americans who should be anxious to join environmental coalitions are often reluctant to join with mainstream groups push- ing for global action regarding the environment. This re- luctance often leads mainstream environmentalists to ar- gue that this group is uncaring when it comes to the global environment. Thus there are various studies of the envi- ronmental concern of African Americans that tend to cor- relate their environmental concerns with local environ- mental issues. That African Americans would be inter- ested or concerned with their local space should not be surprising. After all there is the problem of NIMBY (Not In My Back Yard) that is held by persons across the racial and economic spectrum. The difference is that the back- yards of African Americans have not been respected. Gen- erally, this lack of respect has been caused by racism. This is not to claim that environmentalists are or have been racist. However, we must agree that some environ- mental policies seem to hint strongly of racist intent. Here, I only want to claim that racism has impacted on how African Americans view their status in the United States. Even environmentalists can agree that racism has been and continues to be a problem for African Americans, but also note that environmental concerns are not like racism or sexism, which may affect a particular group of people, environmental concerns impact on us all and thus should be the concern of us all. This means that as members of the human family we have a vested interest in good en- vironmental policy and a clean planet. It is thus in the best interest of all persons to be in- volved in the push to clean up and cool down the planet. If this answer does not suffice, environmentalists could argue that not only are persons of color (African Ameri- cans) often the victims of bad environmental policies, they often bear the brunt of harm done by these polices. They should be willing participants in the movement for well- formed environmental policies and acts. In addition, African Americans are to some degree responsible for the degrading of the environment. It is clear that members of these communities have an environmental footprint that impacts on the health of the planet. At this point the environmentalist would sit down thinking that he or she has adequately addressed the question of the responsibility of members of communities of color (African Americans) to join with other concerned citizens of the world to help save the environment. But notice what question the environmentalist has answered. It is with one noticeable exception the question of why should persons of color be concerned with global issues of the environment. The question I want to address is why should they feel any responsibility to participate in envi- ronmental programs. The answer that they also have an environmental footprint seems to not carry much weight or at least not as much weight as some environmentalists think it should. Why do I think that this is the case? I want to draw a distinction between being or feeling concerned and being or feeling responsible. By concern I mean caring about and giving attention to some particu- lar interest. Being responsible, on the other hand, has two related meanings: (1) being the cause of some action and (2) being expected to feel obliged to participate in some joint action. Here I want to draw on the experiences of African Americans and their environmental problems. Let me be clear: my use of the African American experience is not meant to suggest that they are the only group that will have a problem feeling responsibility to global environ- mental concerns. If it is true that African Americans feel that they are victims of racism and the resulting envi- LAWSON2 ronmental problems are a consequence of the racism, why should they feel any responsibility to help the persons re- sponsible for both their plight and the plight of the planet? One might think that to hold such a position is very short sighted. Yet, if we draw on the liberal model of the re- sponsibilities of the individual, then it become apparent that the persons responsible for the wrongdoing have the greater burden of responsibility in correcting it. I want to suggest that a part of the reason this attitude can be man- ifest is we live in a society that puts the onus of respon- sibility on individuals or groups for the wrongs they have done. That is, if you do the wrong, you are responsible for correcting it. This means for many persons of color, not only have “white folk” done evil to persons of color, they have harmed the planet. It is therefore their respon- sibility to fix it. In this manner blacks can feel concern but not responsible for the environmental problems of the planet. I am not suggesting that African Americans have no responsibility to help with environmental projects. I do contend that given the history of racist social interac- tion there are feelings that whites have more responsibil- ity for harming the planet than do persons of color. Be- cause of the racial history, there are often feelings of mistrust between African Americans and those persons that push some form of collective responsibility for the environment. Is it possible to alleviate some of the mistrust? I think that it is possible but it will require a great deal of work on the part of both parties. What I want to suggest is that those persons concerned with environmental justice re- think how they approach persons of color in regard to working on environmental issues. I am suggesting that they ask: Why should poor persons of color feel any re- sponsibility to participate in environmental programs? This question points to one of the essential values of en- vironmental justice. I contend that not only cleaning up and preserving the environment as a global entity but making those persons who feel, have felt, are, or have been victims of environ- mental crimes and atrocities feel as if they are part of the solution as full members of the human community and not the dumping ground for the wealthy of the world. These are concerns that environmental groups have to ad- dress. As I write this article a major political party has nom- inated the first African American, Barack Obama, for the president of the United States. This is a historic moment. Yet, we must be careful as to how we use his candidacy in our future moral and political deliberations. I think that this point is very important for those of us concerned with environmental issues. His candidacy will give whites a chance to show that they are not racist. Some will claim that: “I voted for Obama therefore I couldn’t be racist.” Logically the conclusion does not follow from the act of voting for Obama. We must be on our guard to remind those persons who use this claim as proof that their en- vironmental policies cannot be racist are wrong. This is an important moment in the social and political history of the United States, but we should not be lulled into ide- ological complacency because of Obama’s political as- cendency. We must remember that racism is still a prob- lem and a vote for Obama may soothe one’s conscience but it does not follow that in other areas of one’s life race does not play an important role. Those of us concerned with environmental justice should not forget this salient point. CONCLUSION In sum, the failure of the environmental movement to address the feelings of victims of bad and unjust envi- ronmental policies that have often been seen as racial atrocities may be a reason that many persons of color, in this case African Americans, feel no responsibility to join with environmentalists to address environmental issues beyond their local issues. Environmentalists want to claim that we are all in this together. We may all be in it together but some of us have been getting screwed. Now you want us to join you in a global environmental program, why should persons of color trust environmentalists. The challenge for both en- vironmentalists and environmental justice advocates is to allay the fears of persons of color that the burden for en- vironmental reclamation will not fall solely on persons of color. In the end, environmentalists must provide argu- ments that are sound and rooted in the history of all of the parties concerned. REFERENCES Lawson, Bill E. Faces of Environmental Racism, 2nd edition, eds. Laura Westra and Bill E. Lawson (Rowman and Lit- tlefield, 2001). “Living For the City: Urban United States and Environmen- tal Justice,” in Faces of Environmental Racism, eds. L. Wes- tra and P. Wenz (Rowman and Littlefield, l995) pp. 41–55. “Racist Property Holdings and Environmental Coalitions: Addressing Memories of Environmental Injustice” in Echoes from the Poisoned Well, eds. Sylvia Hood Washing- ton, Heather Goodall, and Paul Rosier (Lexington Books, 2006). Address correspondence to: Bill E. Lawson 327 Clement University of Memphis Memphis, TN 38152 E-mail: belawson@memphis.edu VALUE OF ENVIRONMENTAL JUSTICE 3 
work_ikix5whjtjcqvjtjlaex5od6mq	----	A theory of justice? P H I L I P P E T T I T A T H E O R Y O F J U S T I C E ? * ABSTRACT. This is a critical analysis o f J o h n Rawls's A Theory o f Justice. Rawls offers a theoretical justification o f social democratic principles o f justice. H e argues that they are the principles which rational men would choose, under defined constraints, in an original position o f social contract. The author criticises Rawls's assumption that men o f any background, o f any socialisation, would choose these principles in the original position. H e argues that the choice which Rawls imputes to his contractors reflects a specific s o c i a l i s a t i o n - one dominant in Western democracies. The theory is useful because it systematises a particular sense o f justice; it is in no sense however a universal theory. My intention is to show that the contractual theory o f justice defended by John Rawls does not have the status of a universal theory (John Rawls, A Theory o f Justice, Oxford 1972 - henceforth 'J'). By a universal theory, I mean a theory which people in different circumstances, particularly people in different cultures, would have equal reason to accept - granted that they could all understand the argument for it. I intend to show that the most Rawls can claim is that his theory explicates the sense of justice of people in a particular society. The paper has two subsidiary goals. The first is to suggest that the society for which Rawls provides a theory of justice is Western democracy, particularly in its twentieth century form - WD, for short. Rawls appeals to our intuition when W D nicely sums up what we have in common. Also he takes as natural attitudes which, if not exclusive to WD, are at least characteristic of it. The second subsidiary goal is to suggest that at the specific level o f Rawls's argument only a particular theory of justice is possible; a universal theory would be something quite distinct. Rawls is concerned mainly with the principles of social justice: "they provide a way o f assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation" (J4). The basic institutions are "the polit- ical constitution and the principal economic and social arrangements" (J7). The particular principles for which Rawls argues are: first, "Each Theory and Decision 4 (1974) 311-324. All Rights Reserved Copyright �9 1974 by D. Reidel Publishing Company, Dordrecht-Holland 3 1 2 P H I L I P P E T T I T person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all" 0250); second, "Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to otfices and positions open to all under conditions of fair equality of opportunity" (J83; for a later reading see J302). These princi- ples are interpreted under the constraints of two priority rules: roughly, that the first principle may never be compromised out of consideration for the second and that, in the case of the second, fair equality of oppor- tunity may never be restricted out of consideration for the greatest benefit o f the least advantaged 0302-03). Rawls argues for these principles of justice by a version of the contrac- tual theory. "They are the principles that free and rational persons con- cerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association" (J11; see also Jl18-19). Rawls does not resort to a quasi-historical myth of a state of nature to give substance to his idea of the original position. It is a purely hypothetical situation defined by certain constraints and, taking account o f the constraints, we are meant to be able to simulate the reflec- tions of the imaginary contractors 0120). The constraints which define the original position include constraints on the parties - they are to be rational, representative of possible social positions, mutually disinterested, reliable when it comes to complying with the principles and so on; these, and constraints on the task in hand - the principles to be chosen are principles of social justice, the society in which they are to apply is one o f moderate scarcity, the principles are to satisfy such formal constraints as generality and publicity, etc. 0146-47). The central constraint however, is that of the veil of ignorance. This requires that the parties to the contract be in ignorance o f their particular talents and fortunes in the society for which they are choosing principles, and indeed be in ignorance of the particular historical circumstances of that society - their knowledge extends only to general facts of politics, economics and psychology (J137). The original position, by the present argument, is not a device which enables the theorist to step outside the limits of his place and time in history. It does not give him a voice to speak for men o f cultures far removed from his own. This its inventor fails to appreciate: " t o see our A T H E O R Y OF J U S T I C E ? 3 1 3 place in society from the peispective of this position is to see it sub specie aeternitatis: it is to regard the h u m a n situation n o t only from all social but also from all temporal points o f view" (J587). I I There are two lines which my argument might take. The first I will mention but not develop. It is the argument t h a t the very idea o f the original position makes sense only against the background o f a certain social experience. It presupposes the experience o f a society where the distri- bution o f social and economic goods is regarded as something subject to h u m a n agency (1). More deeply perhaps, it presupposes the experience o f social mobility and the uncertainty t h a t this brings with it; otherwise the veil of ignorance constraint would seem quite outlandish. The point I a m making is reminiscent o f C. B. MacPherson's claim t h a t the state o f nature o f which Locke (or Hobbes) spoke reflected a society in which market relations are d o m i n a n t so that " t h e individual with which he starts has already been created in the image o f market m a n " (Possessive Individualism, Oxford 1962, p. 269). I am arguing t h a t the contractors with which Rawls starts also show signs o f socially specific modelling: they are limit cases o f socially mobile individuals considering a problem characteristic o f a society t h a t allows some economic inter- vention by the state. I f this is so then some d o u b t is cast on the universal status o f Rawlsian theory. I do no more t h a n mention this point because I do n o t think t h a t it can be pressed home. The contractual theorist can say t h a t t h o u g h the original position is modelled on a situation specific to a certain society, there is no logical reason why it should n o t make sense in other societies. It is true t h a t there is no reason in logic w h y it should n o t do so - but there is every psychological reason why it should not. The idea o f the original position is t o o m u c h the flower of one society - as I see it, W D - to have m u c h chance o f blooming in others, at least in some others. In the f o u r t h section I shall mention a further consideration which suggests this view. The line o f argument which I prefer to follow n o w concentrates on the details o f the choice attributed to the contractors. The choice is t h a t o f the two principles o f justice and it is presented as " t h e unique solution to the problem set by the original position" (J119). I wish to argue t h a t 314 P H I L I P P E T T I T Rawls makes a case for this conclusion which there is no reason to think would carry equal weight in all societies. Rawls's b o o k falls into three parts: on 'theory', 'institutions' and 'ends'. In each of these parts he provides a description which is meant to justify the choice he attributes to the original contractors. In the first part he describes the choice as the implementation of the maximin decision proce- dure, in the second as the adoption o f principles in reflective equilibrium with our considered judgments of justice and in the third as the rational choice in view o f the contractors' conception of goodness. The three descriptions recur in the book, but each is defended in its respective part. I I I The maximin procedure is defined by a conservative rule for choice under uncertainty. "The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others" (J152-53). What Rawls wishes to argue is (a) that the choice of his two principles o f justice by the parties in the original position is a maximin procedure and (b) that as such it is the appropriate procedure in the original position. He puts some faith in this argument: "if the original position has been described so that it is rational for the parties to adopt the conservative attitude expressed by this rule a conclusive argument can indeed be con- structed for these principles" (J153). A b o u t (a): Rawls can show that choice o f his principles would be a maximin procedure only by comparing those principles with alternatives. He finds the alternatives in " a short list of traditional conceptions of justice" (J122). The conceptions he considers are mainly variants of utilitarianism: in particular he considers the principle that average utility- which, unlike aggregate utility, is insensitive to size of population - should be maximised. Here it is already clear that the reflections with which the contractors are credited are not very radical anthropologically: they are reflections traditional in WD. But perhaps the difficulty of the task does excuse these "rough and ready methods" (J123). Rawls now has to show that choice of the two principles represents the maximin procedure, that the worst outcome o f these two principles is better than the worst outcome of alternative procedures. His case has A T H E O R Y OF J U S T I C E ? 315 some plausibility. A high average utility might m a r k a society which tolerated slavery and the worst outcome for an individual in such a society - being a slave - would seem to be worse t h a n anything allowed in a society ordered by the two principles o f justice; the criteria for this assessment o f slavery certainly reflect a specific social experience, b u t I a m willing to grant t h a t they might be accepted by people o f any back- ground. The straight principle of average utility however is n o t the only utilitarian alternative to Rawls' principles. J. E. J. A l t h a m has suggested this further alternative to me: "maximise average utility, subject to first having satisfied needs". It is n o t at all clear t h a t the worst outcome of this would be worse t h a n the worst outcome o f the two principles o f justice. I am n o t anxious however to get stuck on this point. Let us grant t h a t choice o f the two principles does represent the maximin procedure. The second point which Rawls has to establish is t h a t in the original position, the maximin procedure is indeed the rational one. He draws on economic decision theory a n d argues t h a t in any situation there are three features which we must obtain if 'maximining' is to be the rational course. They are, t h a t the situation be one o f uncertainty within which probabili- ties c a n n o t be assigned to the possible outcomes o f any plan; t h a t the m i n i m u m outcome promised by the maximin rule be satisfactory; and t h a t some o f the outcomes o f alternative plans be unacceptable 0154). The A l t h a m alternative does n o t involve any unacceptable outcomes b u t again I put this aside. Let us assume t h a t these three conditions are realised in the original position. This brings us to the central question. G r a n t e d t h a t maximinning does m e a n choosing the two principles o f justice, granted too t h a t the original position satisfies the conditions which normally make maximinning the rational course, would choice o f the two principles necessarily seem the rational choice for the contractors to m a k e ? H o w would it seem to someone o f an aristocratic society for example, someone w h o f o u n d duelling regrettable perhaps but on m a n y occasions the only reasonable course? N o n e o f us can say for sure. A n d t h a t is precisely the point. It is only i f we presuppose in the contractors a certain attitude to risk - one which contrasts the p r u d e n t a n d the imprudent, n o t the mean and the m a n l y - t h a t the maximin rule will seem the rational procedure for them to adopt. We readily make t h a t presupposition because in W D we are generally disposed to take a conservative attitude to risk. 316 P H I L I P P E T T I T Rawls claims, contrary to this objection, t h a t his argument does n o t rest directly on the assumption o f an aversion to risk a m o n g the contrac- tors. " W h a t must be shown is that choosing as i f one h a d such an aversion is rational given the unique features o f t h a t situation irrespective o f any special attitudes to risk" (J172). This begs the question as it supposes t h a t there is some independent test o f the rational. A t this stage, the only test is whether we can simulate the reflections o f the parties in adopting the maximin procedure and feel their weight. This we can do with ease but only because o f our characteristic attitude to risk. A little historical imagination enables us to see t h a t others might find a very different rule o f choice the natural one for the contractors to follow. There is only one situation - one version o f the original position - in which it is h a r d to imagine that people o f a n y society would find the conservative rule o f choice unnatural. This would arise i f each contractor h a d to assume, n o t t h a t he might, but t h a t he definitely would be in the least advantaged position in the society to come. In this case the principle 'I cut, y o u choose' would apply (2). It would leave the choice o f the maximin alternative contingent, n o t on a particular attitude to risk, but on an attitude to coming out worst. This would be an advantage insofar as aversion to coming out worst seems to be a more natural and universal h u m a n attitude t h a n aversion to risk-taking. It would undermine the idea o f a contract however: a contractor could not assume t h a t he would be in the least advantaged position i f he recognised t h a t every other contractor made the same assumption. I V The second description which Rawls gives o f the choice which he imputes to the contractors presents the principles chosen as principles in reflective equilibrium with our considered judgments o f justice. They are in equilib- rium because the conclusions which they yield a b o u t h o w to organise the basic institutions o f a society are in line with our intuitive j u d g m e n t s ; the equilibrium is described as reflective because it gives us a view o f the grounds and mode o f derivation o f those judgments (J20). Rawls does n o t say t h a t the principles must in every case generate con- clusions in line with our judgments. In central cases they will. In marginal cases where we are n o t sure o f our judgments they m a y not: here the con- clusions m a y shift our intuitive judgments somewhat, providing us with A T H E O R Y OF J U S T I C E 9. 3 1 7 independent theoretical guidance (J19-20). The theory of justice is Socratic: "we m a y want to change our present considered judgments once their regulative principles are brought to light" (J49). The i m p o r t a n t point however is t h a t in the main, the t h e o r y fits our considered judg- ments. This fit is invoked by Rawls to justify the two principles which he takes the contractors to choose. " O n e can work out their consequences for institutions and note their implications for fundamental social policy. In this way they are tested by a comparision with our considered judgments o f justice" 0152). I do n o t intend to go into the consequences which Rawls draws f r o m his principles: they are consequences which describe W D in fair outline. W h a t I want to point out is t h a t the test o f reflective equilibrium is inconsistent with a 'universalist' view o f the theory o f justice. This test ensures t h a t what Rawls' theory does is explicate the sense o f justice d o m i n a n t a m o n g those whose judgments are taken into account, system- atise the principles t h a t they find natural and attractive. There is no more reason to believe t h a t one theory o f justice would satisfy all cultures t h a n there is to believe t h a t all cultures share the same judgments o f justice. Rawls provides a theory which answers only to our judgments, a theory o f justice for WD. (3) Rawls does try to give scientific status to the test o f reflective equilib- rium, and this m a y seem to do something for the status of his theory o f justice. He points out - rightly, I think - t h a t such a test also appears in linguistics, at least as described by N o a m Chomsky. " I n this case the aim is to characterise the ability to recognise well-formed sentences by formulating clearly expressed principles which m a k e the same discrimina- tions as the native speaker" (J47). Here too the theory is Socratic, the principles m a y influence our intuitive j u d g m e n t s : "while we m a y n o t expect a substantial revision o f our sense o f correct g r a m m a r in view o f a linguistic theory the principles o f which seem especially natural to us, such a change is n o t inconceivable, and no d o u b t our sense o f grammati- calness m a y be affected to some degree anyway by this knowledge" (J49). The analogy with linguistics however is a give-away. The analogy Rawls draws is with a particular grammar, the g r a m m a r o f a particular language. It suggests t h a t what he offers himself is a particular t h e o r y o f justice, the theory which explicates a particular sense o f justice. He might have f o u n d a less embarrassing analogue in universal grammar, the theory o f 3 1 8 P H I L I P P E T T I T the constraints under which all particular grammars must work. The trouble is that his theory does not have the required similarities with that grammar. It just is not a universal theory of justice. A further interesting point is suggested by the linguistic analogy: it links up with the argument mentioned in the second section but not developed. In Chomsky's linguistics, the descriptive adequacy of a gram- mar is its capacity to generate all and only the grammatical sentences of a language - the fact that it is in reflective equilibrium with our sense of grammaticalness. The drawback with descriptive adequacy as a criterion of a grammar however is that there may be two grammars which are capable of generating the grammatical sentences of a language. Chomsky finds a further criterion, a procedure for evaluating two descriptively adequate grammars, in universal grammar: the one which fits in better with the universal theory of language is the better grammar. It now has explanatory adequacy as well as descriptive (Aspects of the Theory of Syntax, Cambridge, Mass. 1965, pp. 26-27). The question is, does Rawls have any corresponding procedure for choosing between two theories of justice? He needs such a procedure, for it is at least conceivable that another theory of justice should also meet the test of reflective equilibrium. Why should a theory not be possible which set up a divine legislator and gave him such attributes that his imagined judgments on justice would be in reflective equilibrium with our own? H o w would Rawls decide then be- tween such a theory and that which he defends himself? Clearly he would decide for his own; so, I suspect, would all of us. But why? The only reason I can see, in the absence of a universal theory of justice which would do the work of Chomsky's universal theory, is that Rawls' theory is a native flower in WD, the alternative an exotic growth; here I return to the argu- ment of the second section. A myth of rational contractors in an original position is a more plausible myth to our minds than the myth of a divine legislator. V The third description which Rawls gives of the choice of the two principles o f justice presents it as the rational choice for the contractors in view of their conception of goodness. Does this description do any more than the others to give universal status to the Rawlsian theory of justice? I am A T H E O R Y OF J U S T I C E ? 319 going to argue that it does not because I do not think that RaMs estab- lishes the validity of this description. First, what does he mean by 'rational'? He takes his cue from the economic theory of decision-making. "Thus, in the usual way, a rational person is thought to have a coherent set of preferences between the op- tions open to him. He ranks these options according to how well they further his purposes; he follows the plan which will satisfy more of his desires rather than less, and which has the greater chance of being success- fully executed" (J143). Here RaMs gives us the three main principles that he thinks of as guiding rational choice: the principles of effective means, inclusiveness and greater likelihood (J411-12). The principles are useful because they enable us to compare different plans; they may even be allowed a universal appeal and validity. What they do not do however is mark out one plan as the rational one in a situation of choice - at least not necessarily. Hence they cannot in themselves determine the choice of the original contractors. What more is necessary in a situation of choice if one plan is to stand out as the rational plan ? First, Rawls says, that the requirement of delib- erative rationality is met. A plan is chosen with deliberative rationality when all its consequences have been clearly foreseen and balanced against the consequence of alternative plans (J417). Even when this requirement is met, however, it is not possible to say what is the rational plan for an individual in a situation of choice; that plan has only been specified formally. What it is also necessary to know is the desires which weigh with that individual. Thus if we are to be convinced that the rational plan for the original contractors to choose is represented by the two principles of justice we must be told something about their desires, their conception of the good. The distinctive thing however about the choice which faces the contrac- tors is that they do not, and in simulating their reflections we do not, know anything of their particular desires; this, by the veil of ignorance condition. The contractors are to choose principles of social organisation, not out of concern for such individually variable desires, but out of con- cern for desires to which they are bound, regardless of who they are. These are described as "general desires" (J263) or desires for "primary goods" (J93): they are meant to be desires for conditions required for the pursuit of any particular goals. 320 P H I L I P P E T T I T Rawls maintains, that these conditions, the primary goods, are certain rights and liberties, opportunities and powers, income and wealth and - something supposed to be made possible in the pursuit of these - self- respect (J92). He also maintains that these are ordered so that liberty is prior to socio-economic advantage and equality of opportunity to econ- omic welfare (J302-03); other motivational assumptions, e.g. that in- centive requires inequality, I leave unexamined. If his claims are allowed, then it certainly follows that Rawls's third description is a fair account of the choice which he imputes to the contractors; this is indeed the rational choice for them to make in view of their desires, their conception o f the good. Does Rawls justify his claims, does he establish his list of the primary goods? He certainly sets out a strategy for doing so. They are meant to be the goods to which the contractors are directed in view of certain "general facts" about human beings 0424). These include facts about human desires and wants, capacities and abilities, and social interdepen- dence: they are not discussed - on the grounds that they are matters of "common sense knowledge" (J425). The only fact discussed is described as a "deep psychological fact" (J432). "It says only that we prefer, other things equal, activities that depend upon a larger repertoire of realized capacities and that are more complex" (J429-30). Rawls calls it the Aristotelian principle. It is worth noting one reason why Rawls may feel free to pass so quietly over facts that play a crucial role in his theory. It is that he shows a not unexpected faith in psychology, an optimism about the invariability of the facts which this discipline may be presumed to catalogue. Thus he speaks of general psychological principles of which he allows his contrac- tors to be aware (J24, 456), principles which include "laws of motivation" 026). In doing so he backs up his assumption that men of any society would attribute to the contractors in the original position the same psychology that he gives them. His positivism on this issue begs the question of whether the original position makes possible a theory to explicate a universal sense of justice. But even if we grant Rawls his general facts - and what they are is not at all clear - we find that he fails to clinch his argument that they would lead the contractors to recognise the primary goods that he lists. At the point where we expect to have the argument clinched he falls back on A T H E O R Y OF J U S T I C E . 9 321 self-evidence. " W e must assume, then, t h a t the list o f p r i m a r y goods can be accounted f o r b y the c o n c e p t i o n o f goodness as rationality in con- nection with the general facts a b o u t h u m a n wants an d abilities, their characteristic phases and requirements o f nurture, the Aristotelian prin- ciple, and the necessities o f social interdependence .... I shall n o t argue the case for the list o f p r i m a r y goods here, since their claims seem evident e n o u g h " 0434). Rawls's failure to argue this case means his failure t o establish the validity o f his third description o f the choice at t ri b u t ed t o the contractors. It means that t h a t description does n o m o r e t h a n the others to establish the universal status o f his t h e o r y o f justice. VI But in fairness: R a M s does offer an argument f o r the necessity o f one p r i m a r y g o o d - t h a t o f self-respect. H e defines self-respect as (a) having a sense o f the value o f one's plan in life and (b) having confidence in one's ability to carry it out. He appeals to intuition in defence o f the idea t h at this is a p r i m a r y good. " W i t h o u t it n o t h i n g m a y seem w o r t h doing, or i f some things have value for us, we lack the will t o strive f o r t h e m " 0440). One can see the force o f this appeal in some cases, t h a t o f a profes- sional m a n in W D for instance, b u t one asks whether it applies in all. R a M s thinks t h a t it does and argues that each p erso n must find something he is g o o d at - and, to satisfy the Aristotelian principle, it had b et t er be o f some complexity - and f o r which he earns the respect o f some g r o u p o f people, respect which encourages him in self-respect. " T h u s w h at is necessary is t h a t there should be for each perso n at least one c o m m u n i t y o f shared interests to which he belongs and where he finds his endeavours confirmed by his associates" (J442; see also J178-79). This definition o f self-respect is tied in one obvious respect t o a n o n - universal p a t t e r n o f social experience, a p a t t e r n characteristically exem- plified in W D . It is individualist. I suggest that fo r societies in which the category o f the individual received less emphasis, fo r societies where social facts were n o t presumed in the n o r m t o be the o u t c o m e o f free individual actions, this definition would n o t do. Th e definition does n o t m a k e it a condition o f self-respect that one should see oneself as p a r t o f a larger entity - the g r o u p - in which one believes. This might well a p p e a r to be a condition o f self-respect to s o m e b o d y socialised in a m o r e tightly 322 PHILIP P E T T I T integrated society t h a n WD. But Rawls leaves no r o o m for such a person in his original position. His very definition o f society - " a cooperative venture for m u t u a l a d v a n t a g e " (J84) - must alienate anyone of a collec- tivist mentality f r o m the t h o u g h t experiment o f the original position. To get contractors into the original position in the hope o f simulating their reflections, it appears t h a t we are to bring t h e m t h r o u g h the p u r g a t o r y of WD. Rawls' concept of self-respect is i m p o r t a n t because he tries to derive an a r g u m e n t f r o m it for the priority - and indeed the basic appeal - o f liberty. 'Liberty' includes a variety o f freedoms: the freedom to vote and stand for public office, the freedom of thought, speech and assembly, the freedom o f person and (personal) property, freedom f r o m arbitrary arrest (J61); these, and also apparently " t h e i m p o r t a n t liberty of free choice o f occupation" (:I274). Rawls does n o t comment on the heterogeneous appearance o f the list. In general, liberty is something generated by institutional arrangements - a " p a t t e r n o f social f o r m s " (:I63) - and it has the merit o f p r o m o t i n g self-respect. Rawls argues t h a t in the society which the contractors foresee equal liberty is a sure basis for self-respect, one which n o b o d y would want to compromise, even in the hope o f material advantage. It is a basis o f self- respect because o f what it allows: " t h e full and diverse internal life o f the m a n y free communities o f interests" (J554; see also J442). A n d also, apparently, by a shift in the concept o f self-respect, it is meant to provide such a basis in its own right. " T h e basis for self-esteem in a just society is n o t then one's income share but the publicly affirmed distribution o f f u n d a m e n t a l rights and liberties. A n d this distribution being equal, every- one has a similar a n d secure status when they meet to conduct the c o m m o n affairs o f the wider society" (:I544). Against this it must be said t h a t the connection between liberty and self-respect cannot be p u t up as one t h a t must c o m m a n d universal assent, even when self-respect is defined in an individualistic way. There can be m a n y communities o f interest, enough to give everybody a chance o f self- expression, in a society which we would n o t regard as free. A n d there m a y also be sufficient matter for self-respect at the general political level. One might argue t h a t in a society terrorised by a dictatorial power, one would n o t have much r o o m for self-respect o f a n y kind. But the argument can hardly go to show the need for full political liberty in the Rawlsian sense - A T H E O R Y O F J U S T I C E . 9 323 certainly n o t something like liberty o f occupation. Liberty f r o m arbitrary arrest m a y be p u t in the same list as other 'liberties', but this does n o t make it o f a kind with them. Rawls himself mentions the possibility o f a feudal or caste society in which individuals find a source o f self-respect in the role given them in the order o f things. He says that this is an acceptable guarantee o f self-respect only because o f the assumption t h a t the order o f things is n o t subject to h u m a n choice, an assumption which is ruled out by the nature o f the enterprise on h a n d (J547). On the contrary: the only assumption necessary is t h a t the order of things in question has the most to be said for it in view o f the primary goods recognised by the contractors. Only by begging the question can equal liberty be taken to be one o f those goods. V I I The conclusion I draw is that Rawls does n o t establish that universal status which he assumes belongs to his theory o f justice. The contractual device gives the principles o f justice as o u t p u t only because the input is a socially specific mentality - the mentality, I suggest, o f people in WD. It will n o t do to say that the device gives even the general outline o f a "finally adequate t h e o r y " (J581). It can only give the outline o f a t h e o r y adequate to a particular sense of justice. The reason for this should n o w be clear. It is not any dialectical inca- pacity in Rawls but a reason in principle. I f a theory o f justice is meant to generate judgments o f justice satisfying the test o f reflective equilibrium then it is going to be relative to the set o f judgments, the particular sense o f justice, with which it tries to achieve equilibrium. A theory o f this kind c a n n o t assume universal status. But there is no scandal here. I do n o t see what is wrong with saying t h a t the sense o f justice by which we order - or at least criticise - our society reflects the image o f m a n we have created and n o t an eternal h u m a n essence. I do n o t see w h y theory should give itself the task o f rescuing t h a t sense o f justice from history. The t h e o r y o f justice is the means by which we explicate and examine our sense o f justice, it is n o t a means o f providing it with metaphysical foundations. The linguistic analogy suggests t h a t we should have a universal t h e o r y o f justice as well as a particular; this would describe the constraints which a n y theory of justice must meet. The best candidate for the title o f uni- 324 P H I L I P P E T T I T v e r s a l t h e o r y is t h e t r a d i t i o n a l p h i l o s o p h y o f j u s t i c e - t h e m e t a t h e o r y o f m o r a l s a n d politics. W h a t prescriptivists a n d descriptivists d o f o r i n s t a n c e c a n b e d e s c r i b e d i n this w a y : t h e y f o r m u l a t e c o n d i t i o n s - o f f o r m a n d c o n t e n t - w h i c h e v e r y sense o f j u s t i c e - a n d , m o r e generally, e v e r y m o r a l sense - m u s t meet, c o n d i t i o n s w h i c h a n y p a r t i c u l a r t h e o r y o f justice m u s t respect. I n r e c e n t w o r k o n justice a n d m o r a l i t y , it is fair t o s a y t h a t w e h a v e h a d e n o u g h o f u n i v e r s a l t h e o r y . T h a t is w h y R a w l s ' s w o r k is so i n t e r e s t i n g a n d so c h a l l e n g i n g ; it offers a p a r t i c u l a r t h e o r y o f o u r sense o f justice. I t is o n l y a p i t y t h a t R a w l s h i m s e l f s h o u l d h a v e c o n f u s e d it w i t h t h e o t h e r s o r t o f t h e o r y a n d tried t o c r e d i t it w i t h u n i v e r s a l status. Trinity Hall, Cambridge N O T E S * My warm thanks go to Jimmy Altham, Harry Bracken, Stefan Collini, Martin Hollis, Steven Lukes, Quentin Skinner and Denys Turner. Without their comments this paper would certainly have been a poorer effort. I am also grateful to Professor Rawls for a useful correspondence about his position. 1 I owe this point to Jimmy Altham. 2 I owe this point to Elizabeth Anscombe. 3 In WD there is wide disagreement on particular judgments of justice between politi- cally defined groups. I take it, with Rawls, that there is equally wide agreement on more general judgments, when the judgments are considered out of a political context. 
work_ikixekug6rck5lxbfubpqewl3i	----	Justice and Fairness in Negotiation Group Decis Negot (2017) 26:9–17 DOI 10.1007/s10726-016-9496-4 Justice and Fairness in Negotiation Daniel Druckman1,2,3 · Lynn Wagner4 Published online: 29 July 2016 © Springer Science+Business Media Dordrecht 2016 Abstract In this special issue we display a variety of approaches to the study of justice. Articles from scholars working on questions involving justice and fairness in decision making exchanges calls attention to a variety of research approaches, issue domains, cases and hypotheses used to explore these questions. All of the con- tributions emphasize analysis, using quantitative and qualitative methods including simulation-experiments, comparative case studies, statistical analyses and game the- ory. The articles in this collection reveal that justice and fairness concerns extend from the negotiation process to the outcome and into the implementation stage. They share the underlying expectation that individuals and groups gravitate toward fairness and justice in their exchanges with others. Therefore, a full understanding of group decision processes will be incomplete if justice and fairness issues are not consid- ered alongside issues such as power distributions and alternatives to an agreement. The authors also suggest that outcomes built on justice and fairness principles will enhance the efficiency, stability and implementation of the negotiated agreements. Keywords Distributive justice · Fairness · Negotiation process · Pareto-optimal allocations · Procedural justice B Daniel Druckman dandruckman@yahoo.com Lynn Wagner lynn@iisd.org 1 George Mason University, Farifax, VA, USA 2 Macquarie University, Sydney, Australia 3 The University of Queensland, Brisbane, Australia 4 International Institute for Sustainable Development, Winnipeg, Canada 123 http://crossmark.crossref.org/dialog/?doi=10.1007/s10726-016-9496-4&domain=pdf 10 D. Druckman, L. Wagner 1 Introduction This special issue showcases the many faces of justice in negotiation. Articles from scholars working on questions involving justice and fairness in decision making exchanges expose the reader to a variety of research approaches, issue domains, cases and hypotheses used to explore these questions. Cutting across the contributions is a focus on analysis, using quantitative and qualitative methods including simulation- experiments, comparative case studies, statistical analyses and game theory. Cases addressing issues from security to environmental policy are examined through the lenses of a variety of theoretical perspectives. The articles address the sources, corre- lates, and contexts within which justice considerations are germane. As the articles in this collection reveal, justice plays a complex role in group deci- sion making. The articles explore the sources of justice claims, including the more psychological roots and the larger political context. These conceptions of justice are manifested in negotiation processes that involve decisions concerning which groups will be represented in the process, whether they will have access to relevant infor- mation and opportunities to speak in order to fully participate in the process, and whether the parties have a choice in accepting the final agreement. The agreement might represent a number of types of justice, from equal distributions of resources under discussion, to splitting the resources according to the parties’ inputs or needs, to compensating parties. Assessments of whether the process and outcome were just or fair influence negotiating parties’ attitudes toward the agreement, with implications for implementation. The articles seek to analyze these variables in order to enhance our understand- ing of how negotiators develop conceptions of justice and how justice considerations influence negotiation processes, outcomes and implementation of agreements. The objective of such an understanding is to enhance future decision making encounters; the final paper explicitly explores how fair (defined as envy-free and Pareto-optimal) allocations could be arrived at. Together, the articles reveal where justice claims come from, the relationship between these claims and outcomes, and the way the claims manifest in a variety of settings including legal negotiations, negotiating peace fol- lowing civil wars, maritime and territorial disputes, and environmental disputes. These articles are reviewed following an overview of the topic. 2 The Role of Justice In our recent article for the Annual Review of Psychology (Druckman and Wagner 2016), we situate justice in a broad framework of processes of and influences on negotiation. The article highlighted the importance of justice concepts in a variety of negotiations. For example, better agreements were obtained when simulated attorneys representing homeowners and contractors regarded the process as fair (Hollander- Blumoff and Tyler 2008) and when national representatives in historical negotiations adhered to principles of procedural justice (Wagner and Druckman 2012). More durable agreements occurred when peace negotiators adhered to equality principles in the outcomes (Albin and Druckman 2012). Further, the implementation of agreements 123 Justice and Fairness in Negotiation 11 are hypothesized to be facilitated when principles related to post-conflict justice, often referred to as transitional justice, guide the post-negotiation period (Binningsbø et al. 2012). The pre-negotiation period is critical for setting the tone in terms of such relational factors as shared identities and normative considerations that include agreement on procedural issues. By bolstering negotiators’ trust and confidence, these factors are likely to increase the chances for a lasting agreement. They also increase a group orientation that emphasizes problem-solving rather than competitiveness (see Lind and Tyler 1988). Interestingly, group-value negotiators also de-emphasize differences in power or use their power advantage to encourage adherence to procedural justice (PJ) principles which often lead to problem solving. A result of these processes is an agreement that embodies the distributive principle of equality. (See Cook and Hegtvedt 1983 for a distinction between the distributive principles of equality and equity.) Equality provisions in agreements bolster the shared identities established during the pre-negotiation stage and pave the way to smooth implementation. The key is to maintain adherence to the principles that guided the process and agreements. For agreements that end violence, this means transitioning from a state of war to peace. For agreements that resolve legal and workplace disputes, this means transitioning from conflictual to cooperative relationships. For both types of agreements, the changes are more likely to last when spoilers are not present during the implementation process (Stedman 2000). A stage conception of negotiation provides a lens for understanding justice con- cepts in terms of a linear path: pre-negotiation interactions encourage justice in the process which increases the chances for a stable agreement. An alternative conception views negotiation in terms of a system. This perspective captures bi-directional and cyclical effects of justice variables. It is attuned to the many ways in which justice variables influence and are influenced by the many other factors that operate in a larger negotiating environment. Rather than exploring historical trajectories of justice and relational variables, this approach focuses attention on an interplay among them as they operate together at any point in time. Rather than isolating justice as a focus for analysis, the approach situates justice in a dynamic social environment. Although the Welch article in this collection comes closest to this perspective, there have been few attempts to develop it as a framework for analysis (see Vallacher et al. 2010). 3 The Many Faces of Justice Justice comes in many forms. Although procedural and distributive justice are the primary forms studied by negotiation researchers, other type of justice receive atten- tion as well. A focus on the period of implementation highlights the role played by transitional justice (TJ). Considered usually in the context of civil war, TJ refers to justice during the transition from armed conflict to peace or from an authoritarian to a democratic political system. It may reinforce the justice principles that guided the negotiation process and outcome or veer away from those principles as agreements unfold. Studies on agreement durability address these matters (Albin and Druckman 2012; Wagner and Druckman, this issue). Another form of justice that receives atten- 123 12 D. Druckman, L. Wagner tion in the literature is referred to as restorative. This also deals with the post-agreement period and emphasizes ideas of restitution and apology. The large literature on truth and reconciliation commissions focuses primarily on this form of justice (see Hayner 2011) as does the research on acknowledgement and apology (Lewicki et al. 2016). A fifth form of justice is referred to as retributive, which focuses attention on the actions taken toward a victim and against a harms doer (Darley and Pittman 2003). This form emphasizes the distributive principle of compensation for wrong-doing and is central in the literature on criminal justice. It comes into play as well in discussions of restorative justice, where both negative, as in revenge, and positive, as in restitution, are weighed in decisions. Positive forms of compensation are discussed in the Wagner and DruckmanandAlbinandDruckmanarticlesinthisissue.Theyarealsodemonstratedin large-scale trade negotiations by Kapstein (2008). Whether negotiators and mediators are attuned to these distinctions among forms of justice or perceive the concept in holistic ways is an interesting research issue (see Hauenstein et al. 2001; also see the Welch article in this issue for a more holistic conception of justice) Another distinction refers to the way that justice is studied. The social science literature is divided between normative and descriptive approaches to the topic. The former divides into axiomatic and theoretical or philosophical approaches. Axiomatic studies seek to deduce fair or optimal solutions from stated preferences for alternative outcomes. Arrow (1963) early work on fairness provides a foundation for these studies. The approach is represented by the Brams, Kilgour, and Klamler article in this issue. Theoretical approaches have been inspired primarily by the writings of Rawls (1971). Considered as a work in political philosophy, Rawls offers a theory of society that adheres to the principle of “justice for all.” He attempts to reconcile liberty with equality by proposing a well-ordered society in which members cooperate to bring the greatest good for the greatest number of citizens. The prescriptive feature of the approach offers a path in the direction of optimal or integrative negotiating solutions, a goal sought as well by the axiomatic approaches. Descriptive approaches divide into experimental and case studies. Both seek to discover the way that justice principles impact on decisions made in negotiation and related arenas. Laboratory studies focus on the conditions under which particular justice principles emerge. For example, the debate between equity (Adams 1965) and equality (Deutsch 1985) theorists on when one or the other of these distributive justice (DJ) principles guide decisions has benefitted from experimental findings. Similarly, the debates about procedural justice issues have been enlightened by experimental findings as illuminated by Hollander-Blumoff’s article in this issue. Case studies have been more concerned with contexts for negotiation. Justice matters are understood in terms of histories of relationships and types of issues being contested. This is illustrated by the three comparative studies in this issue, where justice is explored in the context of terminating civil wars as well as in attempts to resolve territorial and environmental disputes. The situational and contextual lenses provided by experimental and case study approaches are complementary. Together they contribute to the development of a larger theory of justice. The empirical basis for that theory may also be enriched by developments on the normative front. Rawls’ theory of society and the Brams et al algorithms for deducing optimal solutions add insights to those discovered in the laboratory and field. 123 Justice and Fairness in Negotiation 13 4 Articles in this Issue The five articles in this issue offer insights into justice from different perspectives, methodologicalapproaches,andissueareas.Simulation-experiments,statisticalanaly- ses of cases, a small number of cases for comparison, and a game-theoretic approach are represented. Justice is studied in the contexts of legal disputes, a sampling of peace agreements, regional territorial conflicts, and cases of environmental negotiations. The key insights from each article are summarized in this section. In her article on “Procedural Justice Judgments in Legal Negotiations,” Hollander- Blumoff explores the antecedents of procedural justice judgments in legal negotiation. Earlier PJ research has shown strong effects for PJ on negotiating behavior, and this research is extended by three of the articles in this issue. She attempts to dig deeper into this relationship by identifying what accounts for the finding. She compares four factors thought to influence PJ judgments: voice, courtesy/respect, trust, and neutral- ity. By including both self-report perceptions and third-party coding of video-taped behaviors, Hollander-Blumoff breaks new ground in this area of research. Few previ- ous studies include behavioral process assessments. Interestingly, she obtains similar results from both types of assessments. Courtesy-respect is found to be the strongest driver of PJ judgments in both the self-report and behavioral data. The importance of courtesy-respect calls attention to the relevance of interpersonal relational rather than more substantive influence of PJ judgments. But it is interesting to note that voice also plays a role in these judgments albeit somewhat less strongly. This finding com- ports with results from the Albin-Druckman study discussed below. Their analyses of archival documents from negotiations show that fair representation (voice) largely accounts for the relationship between PJ and effectiveness in environmental negotia- tions. Hollander-Blumoff’s study contributes new insights into how PJ judgments are formed. She asks what specifically accounts for negotiator’s perception of a fair process. This approach is used also in the articles by Wagner and Druckman and Albin and Druckman. The former study isolated equality as the key type of DJ accounting for durable agreements and durable peace. As noted above the latter study found that fair representation was the key driver of effectiveness. These findings suggest justice may not be a global concept. Rather it is an aggregate of several parts that may have different effects in negotiation and during the post-negotiation period. The Hollander-Blumoff study is framed as exploratory. She discusses some lim- itations and next steps. One limitation is the single dependent variable (DV), which consists of a perception of PJ. Looking forward, her research would benefit from expanding the range of DVs examined including negotiating behavior and outcomes. An example is the earlier Hollander-Blumoff and Tyler (2008) study. A question of interest is: How does courtesy-respect encourage problem-solving behavior and inte- grative outcomes? In their article on “Drivers of Durable Peace: The Role of Justice in Negotiating Civil War Termination,” Wagner and Druckman develop a multidimensional index of durable peace (DP) following peace agreements. Considered in their research as a dependent variable, the index is used to evaluate the impacts of procedural and distributive justice on reconciliation and changes in societal institutions. Procedural 123 14 D. Druckman, L. Wagner justice consists of four parts that surface during the negotiation process: fair play, fair representation, transparency, and voluntary decisions. Distributive justice also consists of four parts that are reflected in the terms of agreement: equality, proportionality, compensation, and need. Their archival analyses of 16 peace agreements negotiated mostly in the 1990s produce a number of interesting findings. The DP index correlates strongly with a measure of the stability of the agreement (SA). More interesting, however, are the mediated effects involving the SA measure: Stable agreements are shown to mediate the relationship between the DJ principle of equality and DP. This variable also mediates the relationship between PJ and the reconciliation component of DP. Justice variables have a stronger influence on DP when the agreements are stable through time. The impacts on reconciliation and institutions do not include economic growth. That feature of DP is not found to be a dividend of peace agreements. These authors demonstrate that justice plays an important role in peace following civil wars. Adhering to PJ principles during negotiations and including equality prin- ciples in the agreement texts increase the chances for agreements that hold and for societal peace. More broadly, the findings suggest a link between negotiation processes at a micro level of analysis and peace at a macro level. This link highlights the rele- vance of negotiation to relations between state and non-state actors. It suggests that the way a peace agreement is negotiated has important ramifications for future relations between former combatants and for the institutions in which they participate during the post war period. Building on these findings, Wagner and Druckman have extended their sampling to 50 cases. We await the results from these analyses. Welch’s article on “The Justice Motive in East Asia’s Territorial Disputes” under- scores the importance of justice concerns in bilateral international disputes. His comparative case analyses show that conflicts can be difficult to resolve even when strategic or economic issues are negligible. Symbolic or ideational conflicts often trig- ger the justice motive, which can be regarded as an intervening variable between the type of issue at stake (symbolic or economic) and the likelihood of war. He points out that an inflamed sense of justice may be a necessary condition for conflict. This is demonstrated in four of the six cases that he examines. The two exceptions, the Hans Island and Machias Seal Island disputes, are territorial conflicts between countries with a history of cooperation and membership in a shared security community. For these countries, the territorial disputes are not salient political issues and devoid of serious justice claims. Interestingly, none of his cases are disputes spurred by economic or security claims. Although his limited sampling of cases raise issues of generalization to territorial conflicts elsewhere in the world, his analyses provoke important questions about justice for research with larger, more representative samples. These include: What makes justice disputes dangerous?, How might these dangers be reduced?, and What are the prospects of reducing them? With regard to his first question, Welch calls attention to the relevance of insights from behavioral economics, in particular the concept of reference points. The pain of perceived losses motivate people to persevere in support of a status quo that reinforces maintaining their right to the islands. With regard to his second and third questions, Welch proposes four mechanisms for settling these kinds of disputes: negotiation, persuasion, procedures, and rules. He concludes that the obstacles to settlement by any of these approaches are formidable but not prohibitive. For example, the dispute 123 Justice and Fairness in Negotiation 15 between Japan and South Korea over the Dokdo/Takeshima islands may be amenable to procedural solution. The willingness of China to negotiate a solution to the South China Sea conflicts is not matched by comparable willingness by any of its potential negotiating partners. The Albin and Druckman article on “Negotiating Effectively” asks whether negotia- tors who rely on justice principles in the process of bargaining and drafting agreements are more effective than those that are not guided by these principles. The answer is yes depending on the type of negotiation. Focusing on twenty international environmen- tal negotiations divided evenly between bilateral and multilateral cases, the authors analyze relationships between procedural and distributive justice on the one hand and effectiveness on the other. The justice variables are defined in a similar manner as was done in the Wagner and Druckman article in this issue; a difference however is that DJ was coded by Albin and Druckman in the negotiation process rather than the agree- ment as in Wagner and Druckman. Effectiveness is defined by these authors in terms of the extent of agreement (among parties and on issues), time to reach agreement, and comprehensiveness of the agreement. Their key finding is that adherence to PJ prin- ciples predicts effectiveness in the multilateral negotiations. This impact is stronger for the quality of the agreement than for the efficiency of the negotiating process. It is also stronger for fair representation than for the other PJ principles. Adherence to DJ principles during the bilateral negotiating process resulted in a more efficient process (in terms of time to agreement) but not better agreements. Also interesting is the finding that the two types of justice, assessed within the negotiation process, are only weakly related. The authors’ finding of contrasting effects for PJ in the bilateral and multilateral samples may highlight the challenges posed by large-scale conferences of organizing the process and developing trusting relationships in which the delegates appreciate their shared identities. Of particular interest are the roles played by fair representation (voice) and a lack of coercion in producing effective agreements. These aspects of PJ may increase perceptions of trust and shared identities among the delegates more than transparency and fair play. But the findings also have practical implications by identifying areas where multilateral conference organizers can apply their leverage on the process most effectively. Whether these implications apply as well to other multilateral issue areas remains a question to be addressed in further research. The final article by Brams, Kilgour and Klamler anchors the collection by pro- viding a prescriptive lens on issues of fairness. The authors’ game theory approach to determining whether an envy-free allocation exists reveals a condition that “guar- antees the existence of a maximin, envy free, and Pareto-optimal allocation.” These authors present a procedure for dividing a set of indivisible items that two parties value differently and can rank from best to worst. The procedure is expected to reveal allocations that the parties will view as fair and acceptable, and therefore lead to a constructive settlement of a dispute. While the real-world disputes examined in the other papers will not necessarily consist of fully identifiable issues that parties can easily rank from best to worst, many of the justice concepts studied in those papers aim to bring the dispute as close to this idealized situation as possible. Ensuring that all parties to the dispute are represented at the table and have access to relevant information – conditions for procedural justice 123 16 D. Druckman, L. Wagner – would go a long way toward producing an optimal or integrative solution. Disputing parties, including those with claims of procedural or distributive injustice, would have a full say in assessing the relative value of the issues under discussion and how they are to be divided to satisfy their desire for a fair outcome. While the impartiality that would accompany a strict application of Brams, Kilgour and Klamler’s algorithm would not be likely in a real-world application, mediators and parties could benefit by stepping back to consider the requirements of their process, and to ask whether any adjustments could be made to bring more justice to the process and solution options under discussion. Indeed, Welch stresses the necessity of such an assessment when he notes that any settlement of a territorial dispute would require that “claimants would not, on the basis of full information, consider the outcome unjust.” Brams, Kilgour and Klamler’s algorithm could be used as a standard for evaluating a range of proposed solutions to conflicts. 5 Conclusion The articles in this collection share the underlying expectation that individuals and groups gravitate toward fairness and justice in their exchanges with others. Hollander- Blumoff’s motivation to explore how individuals form judgments about the fairness of the process is based on research findings that “people care deeply about the fairness of proceduresusedtoresolvetheirdisputes.”Welchnotesthatthenegotiationofterritorial disputes would require an agreement that would involve “either a division of the stake or compensation adequate to allow one or both parties to convince themselves that relinquishing all or part of a title in return for something else was fair on balance,” which he suggests “is easier done in a context of good will and mutual respect.” Along these same lines, Albin and Druckman suggest that, given their findings that justice issues influence the direction of the process and the outcome, negotiation analyses need to take justice and related moral/ethical norms into account, rather than focus primarily on interests and power. A full understanding of group decision processes will be incomplete if justice and fairness issues are not considered alongside issues such as power distributions and alternatives to an agreement. The articles also share the underlying expectation that outcomes built on justice and fairness principles will enhance the stability and implementation of the agreements. The “maximin, envy free, and Pareto-optimal allocation” that could be revealed using the algorithm that Brams, Kilgour and Klamler present would leave the parties with the best joint outcome, which would make them less likely to attempt to return to the table to reallocate the resources at a subsequent time. Wagner and Druckman link the inclusion of justice in the agreement with the stability of peace agreements in the short term as well as the durability of the peace in the long term. Justice and fairness concerns extend from the negotiation process to the outcome and into the implementation stage. The papers included in this collection reveal that a variety of principles comprise the conceptions of justice and fairness, and vary from stage to stage. Nevertheless, it is possible to characterize and analyze these principles, through studies like those included in this collection, in order to provide 123 Justice and Fairness in Negotiation 17 a fuller understanding of group decision processes, their outcomes, and how likely these outcomes are to be implemented. Acknowledgements Many thanks are extended to Rebecca Hollander-Blumoff, William Donohue, Serdar Guner, P. Terrence Hopmann, William Maley, Valerie Rosoux, and Dean Tjosvold for serving as reviewers of the papers submitted for publication in this special issue. References Adams JS (1965) Inequity in social exchange. In: Berkowitz L (ed) Advances in experimental social psy- chology. Academic Press, New York Albin C, Druckman D (2012) Equality matters: negotiating an end to civil wars. J Confl Resolut 56(2):155– 182 Arrow KJ (1963) Social choice and individual values, 2nd edn. Yale University Press, New Haven Binningsbø HM, Loyle CE, Gates S, Elster J (2012) Armed conflict and post-conflict justice, 1946–2006: a dataset. J Peace Res 49(5):731–740 Cook KS, Hegtvedt KA (1983) Distributive justice, equity, and equality. Annu Rev Sociol 9:217–241 Darley JM, Pittman TS (2003) The psychology of compensatory and retributive justice. Personal Soc Psychol Rev 7(4):324–336 Deutsch M (1985) Distributive justice: a social psychological perspective. Yale University Press, New Haven Druckman D, Wagner L (2016) Justice and negotiation. Annu Rev Psychol 67:387–413 Hauenstein NMA, Mogonicle T, Flinder SW (2001) A meta-analysis of the relationship between procedural justice and distributive justice: implications for justice research. Empl Responsib Rights J 13(1):39–56 Hayner PB (2011) Unspeakable truths: Transitional justice and the challenge of truth commissions, 2nd edn. Routledge, New York Hollander-Blumoff R, Tyler TR (2008) Procedural justice in negotiation: procedural fairness, outcome acceptance, and integrative potential. Law Soc Inq 33(2):473–500 Kapstein EB (2008) Fairness considerations in world politics: lessons from international trade negotiations. Polit Sci Q 123(2):229–245 Lewicki RJ, Pollin B, Lount RB (2016) An exploration of the structure of effective apologies. Negot Confl Manag Res 9(2):177–196 Lind EA, Tyler TR (1988) The social psychology of procedural justice. Plenum Press, New York Rawls J (1971) A theory of justice. Harvard University Press, Cambridge Stedman S (2000) Spoiler problems in peace processes. In: Stern PC, Druckman D (eds) International conflict resolution after the Cold War. National Academy Press, Washington Wagner L, Druckman D (2012) The role of justice in historical negotiations. Negot Confl Manag Res 5(1):49–71 Vallacher R, Coleman PT, Nowak A, Bui-Wrzosinska L (2010) Rethinking intractable conflict: the perspec- tive of dynamical systems. Am Psychol 65(4):262–278 123 Justice and Fairness in Negotiation Abstract 1 Introduction 2 The Role of Justice 3 The Many Faces of Justice 4 Articles in this Issue 5 Conclusion Acknowledgements References 
work_ikmlzpulezaydap4qlra57lv6e	----	1 Transitional justice as an elite discourse: Human rights practice between the global and the local in post-conflict Nepal Simon Robins 1 Post-war Reconstruction and Development Unit, University of York Abstract Nepal's conflict emerged as a result of a highly unequal society in which the indigenous, lower castes and women were subject to systematic social, political and economic exclusion. This study seeks to understand how post-conflict agendas to address Nepal‟s violent past emerge, and compares the agendas articulated by indigenous victims of the conflict from a remote rural district with that of civil society dominated by Kathmandu based elites. An empirical study has been made of the needs of transition of families of those disappeared during the conflict in the Mid-western district of Bardiya, the worst affected by disappearances during the Maoist insurgency. This agenda is then compared and contrasted with that articulated by those leading advocacy for transitional justice in Nepal, namely national and international human rights agencies. Indigenous rural victims remain ignorant of rights and articulate an agenda of addressing basic needs and demanding political change that empowers them. Elite led civil society, notably among human rights agencies, has adopted a highly legalistic agenda that coincides with the dominant global rights discourse in which prosecutorial process is prioritised and the inequalities that led to conflict considered beyond the remit of transitional justice; issues of social and economic rights are ignored. Victims remain marginalised from both the transitional process and from those agencies that purport to represent them. A global rights agenda that uses the language of giving agency to the marginalised actually serves to advance ethnic and caste based elites. Not to be quoted without permission of the author. Paper to be presented at the ISA Annual Convention 2010, New Orleans; Feb. 17 th -20 th 2010. Impacting Policy Makers: Conflict and Human Rights Panel 1 simon.robins@simonrobins.com 2 Introduction Transitional justice is an effort to respond to the needs of societies emerging from conflict or political violence 2 and has become the preferred lens through which to examine democratising states. Typically, these are institutional responses to violations of international humanitarian law, human rights law or domestic law that occurred during a previous regime. This discourse emerged from a legal tradition, parallel to that of human rights, and as such initially saw such responses as principally legal, concerning retributive justice and prosecution. 3 However, transitional justice has increasingly become dependent upon a broader understanding of the concept of justice that goes beyond prosecutorial mechanisms and includes mechanisms that aim to address issues of truth and reconciliation, reparations and acknowledgment. The justice of transitional justice has also been interpreted in its broadest sense, not only as a legal response, but as a multi-faceted process that seeks to build social relations perceived as equitable. 4 In this sense transitional justice can aim not just to address violations of the conflict and their consequences but the injustices that led to conflict. Such an interpretation has led to the beginnings of an engagement with issues such as development and social exclusion within the transitional justice discourse. 5 Much has been written critical of the human rights discourse from which transitional justice emerges, notably that it represents a wholly Western tradition, 6 and challenging its claims to universality. 7 Critiques of contemporary approaches to transitional justice are centred around its embodiment in institutional approaches, either national or supra-national, 8 its continuing dominance by a legalist agenda 9 and the fact that it is steered by perspectives deriving almost exclusively from elites. 10 Despite a widespread understanding that it is the poor and disempowered who suffer most in the violence that precedes transition and who constitute most of the victims of conflict, a sustained engagement with such constituencies has not become part of the mainstream practice of transitional justice. Whilst many transitional processes claim to be “victim-centred” (e.g. the much discussed transition in South Africa 11 ) this term remains under conceptualised and transitional processes continue to be driven largely by elites in concerned states with the support and guidance of the international community. In many post-conflict interventions both the individual and collective consequences of violations remain largely unexamined. The human rights discourse is now truly global, both in its stated universality and in the range of states that claim to enforce rights. However human rights has globalised together with other sets of norms, including a broad range of liberal, and sometimes neo-liberal, tenets. 12 In the developing world a discourse of development, rights and liberal democracy has become truly hegemonic, with international donors, NGOs and most governments claiming to ascribe to 2 Teitel 2000. 3 Teitel 2003; Orentlicher, 1991, 2007. 4 Kriesberg, 2001. 5 e.g. Mani 2008. 6 e.g. Pollis and Schwab 1989; Panikkar 1984. 7 e.g. Donnelly 1984. 8 Duschinski 2008. 9 McEvoy 2008. 10 McEvoy and McGregor 2008. 11 Republic of South Africa 1999. 12 Rajagopal 2003. 3 what are broadly perceived as universal values. The practice of human rights however remains far from universal: „on the ground‟ human rights is a transnational discourse that must compete with local political and other imperatives. As a result, the study of the practice of human rights is necessarily discursive; to understand how the global rights discourse impacts in particular places upon human actors, given the webs of political and social relationships in which it must operate. 13 The study of rights in practice involves studying how the global discourse of rights is instantiated or constituted in a particular context. Here that context is a conflict affected district of Nepal, remote and rural and with a majority indigenous population. An empirical study has been made as to how the human rights discourse is articulated in this post-conflict setting and how visions of transitional justice arising from that discourse coincide with or contradict those of conflict affected indigenous people. This article begins from the understanding both that there is no such thing as human rights „in the abstract‟, 14 and that „non-elites [...] are very often important human rights theorists‟ 15 . This article aims to ask where the global discourse of human rights is situated or constituted, and how does the way these norms are constructed in practice impact upon the emancipatory potential of that discourse, in particular in a highly unequal society in transition from armed conflict. This highlights the difference between human rights on a conceptual level, the global and the universal idea that drives the discourse, and how they are instantiated in particular social settings, subject to the power relations that exist between the actors involved. 16 Nepal‟s conflict was the product of a society built upon the codified exclusion of a majority of its people. Such social exclusion 17 militates against the engagement of a large fraction of Nepalese in many areas of society, on the basis of caste, ethnicity and gender: it is unsurprising that it also impacts on the transition from conflict. Post-conflict efforts to create transitional justice mechanisms continue to be elite led and to marginalise victims and their agendas, and to be dominated by a narrow legalism that neglects the priorities of victims. The ethnographic research discussed here appears to confirm that the idea and meaning of rights in this transitional context is a product of the conjunction of victims with needs and a global discourse articulated by elites. However, the norms that emerge refer far more to priorities internal to the discourse itself than to the needs or agenda of victims, largely because one is articulated by the powerful and one by the powerless: „human rights is not a product of social relations but immanent in them, internal to their very expression [...] rights are positioned at the conjuncture of the two fields of the social: agency and power‟ 18 The aim here is not to devalue human rights discourse in transitional contexts, but to enrich it by demonstrating that rights are mediated by the actors who articulate them: in an unequal society, as any other discourse, they will become subject to existing power relations. 13 Goodale and Merry 2007. 14 Ibid, 25. 15 Ibid. 16 e.g. Stammers 1999. 17 de Haan 1998. 18 Wilson 1997. 4 The Tharu of Bardiya: Exclusion and victimisation Bardiya and the Tharu Nepal is the poorest country in Asia, and the 12 th poorest in the world, 19 with an annual income per capita barely over $400 per year: 30% of the population lives on less than $1 per day. The feudal social relations that have persisted into modern times impact upon livelihoods, with a significant fraction of the rural population being landless and working as sharecroppers for landlords. A lack of access to land is the dominant cause of rural poverty. Nepal is a mosaic of ethnicities, languages and castes, having a unique and complex ethnic geography. The kingdom of Nepal was unified in the 18 th century, under a dynasty of peoples who migrated from India in the centuries before. They established themselves as an elite, socially, culturally, economically and racially, through a rigid system of social stratification that placed the Brahmin and Chhetri castes of the migrants above both the indigenous ethnicities and lower Hindu caste groups. 20 As a result of this social exclusion, traditionally non-Hindu indigenous people (Janajati) and more recent immigrants into the Terai plains of Nepal from neighbouring India, have been systematically excluded from the very idea of the Nepali nation, with many traditionally being denied citizenship. As a result, a majority of the population have been excluded from certain parts of the economy, from what little social services are available and from politics. Indigenous people and the lowest castes face mortality, literacy and income far below the nation‟s meagre average. 21 Within families and communities most of Nepal‟s cultures relegate women to a subservient role, and women have been largely absent from decision making at all levels. Bardiya is one of Nepal‟s 75 districts, lying in the Terai on its border with India in the Mid-west development region. Predominantly rural, Bardiya is a district of agriculturalists and one of only two where the indigenous Tharu people are a majority. The Tharu constitute around 6.75% of the population of Nepal, 1.5 million people, of whom 83% work in agriculture. 22 Indicators of their exclusion can be seen in education: Tharu literacy rates are half (17.5%) the rate among non-Tharu in Bardiya. 23 The Tharu are traditionally animists and have their own language (or languages) and unique medicinal and spiritual traditions. 24 As a result of efforts to assimilate the indigenous peoples into a narrowly defined Nepali identity, many Tharu now consider themselves Hindu, but continue to practice non-Hindu traditions 25 . In the last three decades of the 20 th century the Nepali Government encouraged migrants from the hills, mainly high caste Hindus who shared language and culture with the ruling elite, to migrate to the Terai to exploit land from which malaria had recently been eradicated. 26 High caste migrants were readily able to capture political power because of their education, wealth and access to local authorities with whom they shared ethnicity. For the Tharu 19 UNDP 2004. 20 Höfer 2004. 21 UNDP 2004. 22 Danida 2004. 23 Chhetri 2005: 25. 24 Guneratne 2004. 25 During this research a Tharu woman was asked what her religion was, at which point she turned to the other women with her and asked “Are we Hindu or Muslim?”. This well summarises the relationship many indigenous people have with the dominant religion of Nepal. 26 Conway, Bhattarai and Shrestha 2000. 5 this began what they perceive as the systematic theft of their land, their only economic capital, by migrants, leaving many dispossessed and farming as tenants or share croppers. Most notably, land was seized following the making of loans to Tharu landowners with interest arrangements that ensured payment was impossible. 27 The result of this was the creation of a class of bonded labourers among the Tharu, known as kamaiya: entire families constrained for generations to work for a landlord to pay off debts. 28 Control of land passed to high caste landowners, who then employed the Tharu to work the land. Tharu marginalisation was enhanced by their lack of political representation and minimal presence in the institutions of the state. Conflict between the Tharu and the incoming migrants over land had occurred since migration began with the Nepali state violently intervening in support of landlords. 29 A dominant strand of the Tharu land rights movement was that to „free‟ the kamaiya, and the democratic changes of 1990 eventually led to the Government outlawing this form of contemporary slavery in 2000 and adopting the Kamaiya Labour Prohibition Act in 2002. 30 However, both the freed kamaiya and many other Tharu families own no land and must rely on casual work, share cropping or tenancy to survive. For many in Bardiya, both among the Tharu and high caste landlords, the Maoist „People‟s war‟ was another episode in this ongoing conflict over land. The development discourse and exclusion Despite the limited state presence in much of rural Nepal, people were exposed to an idea of Nepal and of being Nepali constructed by elites in their own image. This disseminated the culture and values of that elite: a concept of Nepalis as a high caste Hindu hill people that justified the exclusion of the indigenous: „non-Hindu ethnic peoples in Nepal had been subjected to a deliberate policy of religious and cultural suppression that converted cultures into castes, assigned each a place in a ranked rituo-political system, and aimed to make people who hailed from non- Brahminical cultures and histories into loyal subjects of the Hindu nation-state.‟ 31 In Nepal a liberal discourse, combining ideas of democracy, rights and development, has become hegemonic as a result of the priorities and resources of international agencies and the willing cooption of national elites who have benefitted from an association with it, through access to funds and careers. The ideologies and institutions of development came to be understood as the definition of modernity 32 even though these were created entirely upon the basis of elite understandings of what a Nepali was and should be: „Instead of building on the traditions and knowledge of the villagers in Nepal, the education they received taught them that the places they came from were ignorant and dirty. Their culture, their religious beliefs, and their ways of using the land apparently were what prevented them from entering the bright, shiny modern world, not the reality that in that world there was not enough – enough opportunities, enough resources – to go around. They were taught that their poverty was the result of who they were and 27 Personal interview, Gopal Dahit, Kathmandu, August 2008. 28 Chhetri 2005. 29 Personal interview, Gopal Dahit, Kathmandu, August 2008. 30 Cheria, Edwin, Kandangwa and Upadhyaya 2005. 31 Leve 2007. 32 Pigg 1996: 160-201; Pigg 1992: 491-513. 6 where they came from – things they could not change - not the result of the deep inequities in the world they hoped to join.‟ 33 For indigenous people, the conflation of this modernising agenda of rights and development with a Nepali culture defined by and in the image of elites created a pressure that actively served to erode indigenous culture. 34 The process of democratisation after 1990 was driven by these liberal values but singularly failed to address any of the substantive issues of poverty, social exclusion, or the violence implicit in many economic relations. Whilst supported by a broad mass of the people, the 1990 movement was led by traditional elites who saw democracy in terms of competitive elections, rather than a challenging of the narrow ethnic and caste base of economic and political power. With the onset of democracy local elites learnt to run political parties in their areas as machines of patronage and in many areas the rich and powerful were able to ensure that their chosen candidates won elections. Electoral democracy changed very little in terms of who represented the people of Bardiya. Non Tharu elites used the institutions of political parties, networks of patronage, and thuggery to win seats in the new democratic parliament. The fraction of civil servants coming from the most powerful caste and ethnic groups increased from the 1980s to the end of the 20 th century, 35 demonstrating that far from addressing issues of social exclusion, the new dispensation that followed the arrival of democracy actually worsened it. At the start of the 21 st century the Brahmin and Chhetri castes, which constitute some 30% of the population of Nepal made up 87% of civil service staff. 36 Because the liberal principles on which the democratic state was founded did not challenge the extreme inequalities that existed, indigenous people and others remained excluded. This issue reflects a deeper fault line in the global human rights project that from its inception elevated individual rights over group rights, leading to the neglect of indigenous peoples that Falk has called a „normative blindness‟. 37 This was reflected in the assimilationist policies that post-1990 Nepali Governments attempted. In both the provinces and the capital the most lucrative jobs lay in foreign development agencies and the national NGOs they supported. Government, which remained substantially corrupt at all levels, 38 could best access funds by articulating the development discourse in its dealings with foreign donors. As a result significant amounts of donor aid were swallowed by elites who had learned the language of development and rights, and rather little reached rural areas, 39 ironically serving to increase the urban-rural economic divide. It was the inability to tackle the fundamental issues affecting many Nepalis, notably exclusion, poverty and uneven development that led to the success of the Maoist People‟s War. Conflict and transition In 1996 a small party from among Nepal‟s fractious Marxist left, the Communist Party of Nepal (Maoist) [CPN-M], declared a „People‟s War‟ against the newly democratic regime. The 33 Armbrecht 2009, 163, discussing a Janajati group in the hills. 34 Pigg 1996. 35 Thapa and Sijapati 2003. 36 Battachan 2008. 37 Falk 1981. 38 Upadhay 2004. 39 Upadhay 2004: According to the report of the Office of Auditor General (2002/3), a total of NRs71.22 billion (nearly one billion in US dollar terms) from various donors has not been accounted for in the annual budgets of the government. 7 insurgency grew rapidly from its initial base in the hills of the impoverished Mid-west with the Maoists conducting military operations throughout the country. They propounded a politics that explicitly encompassed an end to exclusion on the basis of ethnicity, caste and gender and as a result a significant fraction of their cadres were drawn from marginalised groups. 40 The Maoist insurgency began in those areas, notably the poorest, where the state was largely absent and as a result the conflict was fought almost exclusively in rural areas, in both hills and plains, and rural populations became the victims of both sides. By the later years of the insurgency the CPN-M controlled perhaps 80% of the territory of Nepal, with only the headquarters of the 75 districts and major towns under Government control. Because of the ethnic profile of the insurgent forces, many victims belonged to indigenous minorities, in particular where ethnic groups, like the Tharu, were perceived as being generally sympathetic to the insurgency and targeted by the state as a result. One favoured tactic of state forces was to arrest and extra-judicially kill those they suspected of being close to the Maoists. In 2003 Nepal was responsible for a greater number of cases of disappearance reported to the UN‟s Working Group on Enforced Disappearances than any other state. 41 Whilst disappearances 42 were also perpetrated by the Maoists, the vast majority were the responsibility of the forces of the state. The district most affected by disappearances was Bardiya, where more than 250 persons remain unaccounted for, 43 80% of these Tharu, who constitute 52% of the district population. The conflict came to a dramatic end in April 2006, with a second „People‟s Movement‟ uniting the Maoists and the constitutional parties against a king who had again seized absolute power. The conflict left a legacy of some 15,000 dead 44 and more than 1,300 unaccounted for nationally. 45 As part of an ongoing peace process the monarchy has been abolished, a republic declared and following elections to a constituent assembly in 2008 the Maoists are now the largest party in the legislature. The Maoist-led Government that emerged after elections showed no enthusiasm in creating mechanisms of transitional justice despite commitments made in the documents of the peace process. 46 This is due to both a general blocking of legislation that has characterised the politics of the post-election period, and a suspicion among all leading political parties of any process that threatens the prosecution of those who waged the war. As such, the post-conflict debate around transitional justice has been between civil society, led by human rights agencies, and a Government that appears to have little interest. Both international and local human rights agencies have focussed many of their initiatives on issues of transitional justice, and these will be reviewed here in the light of the power dynamics between human rights workers and victims and with reference to Tharu victims in Bardiya. 40 Hangen 2007. 41 Human Rights Watch 2004. 42 According to the definitions of international human rights law only forces linked to a state can perpetrate disappearance (UN Convention on Enforced Disappearance, 2004), whilst arrest and resulting disappearance by a non-state actor, such as the CPN-M, is referred to as abduction. Here, disappearance will be assumed to refer to cases perpetrated by both parties to the conflict in Nepal. 43 ICRC, 2008. 44 INSEC 2007. 45 ICRC, 2008. 46 Government of Nepal 2006. 8 Impact of the conflict The history of dispossession among the Tharu of Bardiya made them receptive to Maoist commitments to ethnic autonomy and land reform and, as a result, the CPN-M found a pool of support in the Tharu community. In districts like Bardiya, where the greatest issue facing the population was that of land and landlessness, as the CPN-M gained effective control of rural areas they also tried to be seen to be addressing such issues. Landlords were targeted, and often forced to flee their lands which were then redistributed to others. However, the conflict took its toll on both individual Tharu farmers and on the Tharu as a community, when the state responded to Maoist success in the district. The Tharu in Bardiya believe that the authorities were unable to discriminate between the Tharu land rights movement and the Maoist insurgency: 47 many of the Tharu people now missing had no connection with the CPN-M. 48 Others taken were community leaders, teachers and activists. However, it appears that the principle reason for the Tharu being targeted by state security forces in Bardiya was as an extension of the struggle over land. From November 2001 the Royal Nepal Army (RNA) was introduced into the conflict against the CPN-M following the failure of the police, along with anti- terrorist legislation that led to a dramatic deterioration in the security situation in Bardiya. Thousands were arrested in Bardiya at this time 49 and disappearances escalated. The greatest number of disappearances occurred following the appointment of a local landowner, from a migrant high caste hill family, to a RNA command position: „His grandfather and father were like kings in this district from a very long time back. They used to pick up any woman they liked from the Tharu village and rape them, entrap Tharu people in their debt [...] If they couldn‟t pay, they had to work as bonded labourers. [the commander] was the son of those feudatory princes and since his childhood his thinking was negative concerning the Tharu community.‟ 50 Methodology of the study The research agenda is driven by the desire to understand victims‟ goals for Nepal‟s transition and compare these with the aims articulated by those driving discussion of transitional justice in Nepal. The research design was therefore developed on a participatory basis with an association of families of the disappeared in Bardiya, the Conflict Victims‟ Committee (CVC). CVC is the largest and oldest association of families of the disappeared in Nepal, having been founded in 2007 by a schoolteacher whose father was disappeared by the state, and claiming the membership of over 200 families. The engagement with family associations helped to build an ethical relationship between the researcher and the researched. 51 The sampling frame used for the study is a list, drawn up by the International Committee of the Red Cross (ICRC), of 241 persons missing as a result of the conflict in Bardiya and published at the start of data collection (ICRC, 2008). A random selection was made from the list to select subjects for interview: of the 31 families met, 28 were Tharu. This represents victims of both sides, although 96% of disappearances in Bardiya were state perpetrated. 52 47 OHCHR 2008. 48 ibid. 49 ibid. 50 Personal interview, Tharu CPN-M leader, Bardiya, July 2008. 51 Robins, 2009. 52 CVC, Bardiya, 2007: personal communication. 9 Subjects were interviewed in their homes as a family group, using a semi-structured approach, developed with CVC leaders. Additionally, CVC selected focus group participants allowing peer groups to be constructed. These included Tharu women and wives of the disappeared. Disappearances had occurred between 12 and 2 years prior to the research, with the average time passed being 5 years. Whilst the methodology is qualitative, the sampling approach allows quantitative statements to be made. The methodology and results of this study are described in detail elsewhere. 53 Interviews were also made with the leadership of CVC, as well as with Tharu intellectuals, local authorities and staff of human rights NGOs in Bardiya, the regional centre and Kathmandu. Research was conducted over a six month period in 2008, some 2 years after the end of the conflict. Victims and the rights discourse Victim priorities of transition When asked about their understanding of human rights most victim families in Bardiya believed that „human rights‟ were a group of NGOs, responding with comments such as: „human rights have come to see us a few times, but have done nothing‟. They were then asked about their specific understanding of their human rights: 'I don’t know about any rights. I just heard that it means n obody should kill human beings, that it‟s a crime to kill people.' 54 „Sometimes I think that when they took our people, they should not have killed them, they have the right to live. […] It is treating them like beasts to kill them immediately after the arrest. They treated our people like dogs. But I don‟t know exactly what rights are.‟ 55 No family met in Bardiya, other than the leader of the victims‟ association, was able to show significant understanding of what human rights are. The data of this study of families of the disappeared in Bardiya 56 indicate that families‟ priorities are for the truth about the fate of loved ones and to retrieve bodies, and economic support so that basic needs for food, healthcare and children‟s education could be met: large majorities prioritised both issues. Justice was mentioned as a priority by only 7% of families in Bardiya. Whilst victims would welcome retributive justice, this is not their priority. Victims have little understanding of rights and articulate needs. Whilst many agencies and donors are devoting funds and programmes to transitional justice in Nepal, rather few efforts have been made to understand what victims want from transition. One study of conflict victims, using largely quantitative methods, has been published by the International Centre for Transitional Justice, and Advocacy Forum, 57 one of Nepal‟s leading national human rights agencies. Most of the report‟s content is concerned with attitudes towards prosecutorial justice and the proposal of a Truth and Reconciliation Commission, while 53 Robins 2009; ICRC 2009. 54 Personal interview, brother of missing Tharu man, Bardiya, August 2008. 55 Personal interview, focus group participant, Bardiya, August 2008. 56 ICRC 2009. 57 ICTJ (International Centre for Transitional Justice) and Advocacy Forum 2008. 10 the survey confirmed that the priorities of victims and their families were: compensation, education, basic needs, such as food, housing, clothing, health and medical facilities, employment and the whereabouts of the disappeared: a mere 3% of those questioned prioritised the punishing of perpetrators. This strongly suggests that victims and their families prioritise basic needs over legal process, and yet the work of those agencies who commissioned the report remains dominated by a judicial agenda (see below). There are additional questions about the sampling and methodology of the report, 58 not least the apparent underrepresentation of the indigenous and of women among those surveyed. Victim emphasis on social and economic needs, rather than the judicial agenda of civil society has been remarked on elsewhere. 59 The analysis here will try to understand why there remains such a gap between the agendas of human rights professionals and the victims themselves in terms of the priorities of Nepal‟s transitional process. Legalism of the rights community It has been observed that the dominance of legalism in transitional justice, in both scholarship and practice has led to a „thin‟ transitional justice that is institutionalised and driven by legal processes 60 that has little relevance for those most affected by violations. The legalist approach is prevalent in Nepal: agencies both national and international advocating for action in response to violations committed during the conflict give primacy to judicial mechanisms, and advocacy has centred on ending impunity, rather than defining justice more broadly. A study of recent publications of Nepali human rights agencies concerning the transition confirm this emphasis: in one 61 the eight “key recommendations” all revolve around prosecution, criminalisation and ending impunity; of the 10 recommendations in a second, 62 whilst some engage with the mechanics of preventing disappearance, most concern prosecutions and none concern the families of those who have disappeared. Both documents understand justice in a narrow prosecutorial way; they are analyses that are perpetrator and violation centred, rather than victim and needs centred. Non-prosecutorial processes, such as the proposed TRC, are seen as a way to name and thus prosecute perpetrators, with other roles considered secondary: „AF [Advocacy Forum] strongly advocates for a Truth and Reconciliation Commission to establish the actual truth and thereby identify and prosecute the perpetrators, provide reparations to victims and create conducive environment for reconciliation in order to provide justice for the victims, end the culture of impunity and reinforce the rule of law.‟ 63 This represents an international trend in approaches to transition, what might be called the judicialisation of transition, in which an „international justice project‟ is privileged over the goals of those most affected by the events of the conflict and indeed the broader needs of the nation. A senior worker at a UN agency in Kathmandu reported that whilst he could understand the perception that victims were being exploited by human rights workers, his agenda was not driven by that of victims in Nepal: his role was „to see perpetrators sent to prison‟. When a senior national human rights agency worker in Kathmandu was asked about the continuing legal emphasis of his work despite victims‟ expressed needs, he replied that „sometimes simple 58 Pasipanodya 2008; Robins 2008. 59 Pasipanodya 2008; Aguirre and Pietropaoli 2008. 60 McEvoy and McGregor 2008. 61 Human Rights Watch and Advocacy Forum 2008, 7-8. 62 INSEC 2008. 63 Advocacy Forum 2007, 1. 11 people do not know what they should want.‟ 64 The rights agenda is being used as a tool to deny agency to victims. Here, we will consider the legalism of those leading advocacy for transitional justice in Nepal and compare their primarily judicial agenda with that of the victims of Bardiya. The law is an abstract concept to most Tharu and, whilst they have been its victims for as long as they have had contact with the Nepali state, few can conceive of it as something that could have relevance in their lives: „The uneducated people don‟t know what rights mean and they don‟t know whether law exists or not. They don‟t know what provisions there are in law. Some of these people even think that the law is for the sake of rich people.‟ 65 Indeed, around one third of victims believe that it is the role of human rights agencies to deliver justice. 66 Confusion over the law was further emphasized when families were asked who they most sought prosecuted: half of families mentioned local informers, who they felt were most responsible for the disappearance, apparently unaware that they are unlikely to have committed a criminal offence. This suggests that what is required in affected communities is not only a formal judicial process, but also something that can bring together members of communities who are divided by the violations of the conflict: a community based process that can address the grievances of victims and promote reconciliation. The principal risk for victims of the constant emphasis of prosecutions is the marginalisation of basic needs, and the diversion of resources of all types to the judicial agenda. Victim families see justice as being much broader than prosecution: almost half see justice as compensation, truth or acknowledgment, rather than prosecution alone. 67 Almost one third would accept an amnesty for perpetrators, if this allowed the truth about disappearance to emerge, or permitted prosecution of those with greatest responsibility. 68 The leader of the Bardiya Association is frustrated at the failure of the victims‟ agenda and that of rights agencies to coincide: justice (in all its forms) is perceived by many victims as something that can only be sought by those whose basic needs are met: „For instance, [an HR agency] works in providing legal support. In the course of it, they frequently invite victims for interactions. The victims are tired of taking part in these meetings; they complain that they cannot participate in meetings, abandoning their work, since they get nothing to eat in the evening if they do not work in the day. But [the agency] does not have any programs to support the livelihoods of the people. [...] To me, it seems that if we could make [the wife of a disappeared man] earn her food and clothes she would go to Gulariya [district HQ] to chant slogans. If she does not have food to eat, she will have to confine herself to the struggle to feed herself.‟ 69 Not only are basic needs a priority, but their satisfaction is seen as a prerequisite to victims being able to campaign for justice. 64 Personal interview with senior human rights agency worker, Kathmandu, September 2008. 65 Personal interview with focus group participant, Bardiya, August 2008. 66 ICTJ (International Centre for Transitional Justice) and Advocacy Forum 2008. 67 Robins, 2009. 68 ibid. 69 Personal interview with leader of CVC Bardiya, Kathmandu September 2008, discussing the typical female relative of the disappeared. 12 This legal lens of human rights workers superimposes upon the complexity of post- conflict Nepal a single dominant approach to transition that claims unique importance to the society as a whole, despite the massive diversity of ways in which the conflict was experienced. It implies that the impact of a conflict born of exclusion, oppression and grossly unequal distributions of power and resources can be addressed largely by a judicial process. More than this it homogenises the many complex and varied demands of victims, arising from their unique experiences of the conflict, into something that can readily be addressed by central institutions rather than through solutions that emerge from victims‟ communities. An extreme example of this legalism has been the efforts of a UN agency and an INGO to offer legal advice to landlords displaced from Bardiya, in an effort to regain their property following CPN-M seizure and redistribution of their land. This appears to local people as simply a political attempt on behalf of elites to return Nepal to a status quo that has been challenged irrevocably by the conflict. The definition of a violation of rights implicitly privileges particular forms of violence over others. The violence of the conflict that led to killings and disappearance are violations according to those representing the human rights discourse in contemporary Nepal, while the violence of social and economic exclusion and exploitation are not: efforts by the CPN-M to redress unequal property relations through land redistribution are considered violations themselves. Human rights has no theory of violence, 70 but as a state-centred discourse sanctions violence that maintains the existing social order. McEvoy describes this as the rights discourse „seeing like a state‟. 71 This is a symptom of a liberal rights discourse that uses a narrow legalism to ignore the politics that underlie situations that are the result of unequal power relations: „legalism [...] incessantly translates wide-ranging political questions into more narrowly framed legal questions.‟ 72 Moreover human rights „sees‟ with the same partial eyes as the state, and when the state is exclusionary it is likely that human rights practice will also be. This is the natural result of a human rights that has: „... a Western centric and top-down focus; it self presents (at least) as apolitical; it includes a capacity to disconnect from the real political and social world of transition [...] and finally it suggests a predominant focus upon retribution as the primary mechanism to achieve accountability‟ 73 The result of this legalism is that „rights work in conjunction with capitalism and serve as a regulatory discourse, at once normalising certain relations of power and co-opting more radical political demands‟. 74 The Tharu of Bardiya see a solution to their problems not in terms of the legal lens applied by rights workers but in terms of something that can put food on their table and ensure their access to land and livelihood in the long term: political demands. Where the state and law have always been servants of elites remote from ordinary people, as in Nepal, transitional justice will require more than the simple application of law to engage with conflict affected communities and to transform the state. This is made explicit when one considers assurances of non-repetition of any violation that are part of the legal right to reparation. 75 In Nepal human rights workers emphasise the reform of the responsible institutions, such as the 70 Goodale and Merry 2007. 71 Scott 1999. 72 Brown and Halley 2002,19. 73 McEvoy and McGregor 2008, 24. 74 Speed 2008, 67. 75 Joinet 1997. 13 army and police, while the victims themselves see the problem as more fundamental and articulate different demands: „We want a Tharu State. [...] There were political reasons behind the conflict. [...] Therefore, politics should solve the problems behind the conflict. For all this, giving an autonomous state to the Tharu people is the best way of solving the problems; they would manage their affairs on their own.‟ 76 Cultural and social issues For many families of the disappeared the most extreme impacts of violations are cultural and social, as power relations within families are skewed and the attitude of the community altered by the fact of disappearance. Most notably for the wives of the disappeared problems arise because they do not see themselves as widows, and continue to wear the visible signs of marriage, such as red sindhur powder in the hair and bangles. Within the traditional joint family there are power relationships, in which young women are dependent for their status on their husband. If he disappears the wife is perceived as having an ambiguous connection to the family, who brings no income to the household, and who may be seeking to elope with another man and bring shame on the family. My in-laws call me very bad things such as prostitute, witch, widow, etc in front of my children when they see me around. (Focus group participant, Katarniya, Bardiya.) The result of this often extreme stigmatisation is that such women will be treated as a servant, denied food and considered with suspicion. Leaving the family will be impossible in the absence of economic independence, and will often demand leaving children behind. In the community, stigma can arise from a perceived association to the Maoists, which the community punish by excluding the family of the disappeared: People don‟t let us drink or bring water from their hand pump. Other kids and people beat my children when I am not in the house. (Wife of missing man, Bardiya.) The issues that lead to women being stigmatised in the family can also lead to problems in the community. The ambiguity over a women‟s marital status and her persistence in wearing the symbols of marriage create the impression that the wives of the Missing are somehow predatory in their search for a new husband. Women report being called whores, and being sexually harassed. These impacts are a direct result of disappearance in the social world in which families of the disappeared live, arising as a result of power relations within families and communities. The rights discourse has little to say about such issues, and in post-conflict Nepal these impacts are invisible outside the impacted communities; agencies working on transitional justice issues have never acknowledged these impacts and remain largely unaware of them. Social and economic rights and victim needs „I have a 6-year-old daughter who is disabled - she was born four days after the disappearance. The security forces took my husband when I started to feel labour pain. [...] I don‟t have money to cure her. As I don‟t have enough to eat, how can I meet the expenses for her treatment?‟ 77 76 Personal interview with leader of CVC Bardiya, Kathmandu September 2008. 77 Personal interview with focus group participant, Bardiya, August 2008. 14 In studies to date 78 and the data of this research, 79 victims of the conflict prioritise livelihoods and the economic well-being of their families. It has been observed that in transitional justice advocacy in Nepal, despite the clear evidence that they are a priority for victims, social and economic rights have taken second place to civil and political rights. In principle, there is „interdependence and indivisibility‟ 80 of all rights, but in both the global rights discourse and in praxis (in Nepal and elsewhere), social, economic and cultural rights are far less emphasised. To this author‟s knowledge, no documents or strategies of advocacy have emerged from the leading Nepali human rights agencies advocating for social and economic rights; potential compensation and economic support for victims is always framed in terms of a legally based „right to reparation‟, essentially reframing the issue as a civil/political right. That social and economic rights are secondary has been implicitly acknowledged, in principle in recognition of developing states‟ challenges in realising such rights, through the concept of „progressive realisation‟ 81 of social and economic rights. In transitional justice, the lack of emphasis globally on social and economic rights has been acknowledged at the highest level: „By reaching beyond its criminal law-rooted mechanisms to achieve social justice, transitional justice could contribute to expand our traditional and reductive understanding of “justice” by rendering it its full meaning.‟ 82 The language of need is that used by most victims met in this study, and their daily experience confronts them with unmet needs, very often the most basic; the language of rights is an alien one. In the long term, sustainable solutions to the livelihood deficit seen among both Tharu conflict victims and many other sections of Nepal‟s population will involve both economic development and the confrontation of the structural inequalities in terms of social and economic exclusion. For the Tharu of Bardiya this demands land reform and mechanisms to ensure that they will never again have their land stolen from them. In contemporary Nepal, the claiming of social and economic rights amounts to a challenge to the social, economic and political order of the pre-transition (i.e. pre-2006) state. Whilst in rhetoric this is accepted at the political level, civil society generally and human rights agencies in particular have proved themselves unable or unwilling to articulate the economic and social needs of victims and to challenge entrenched hierarchies that ensure most remain poor. The retributive roots of transitional justice and narrow agenda of its practitioners continue to prevent the emergence of a practice that can deliver a broader justice after conflict that includes addressing the social injustice that led to conflict. Transitional Justice in an unequal society Whilst the impact of the violations that most defined Nepal‟s conflict, such as disappearances, fell largely upon the rural and the disempowered, the response to those violations is being shaped by others. In the years since the end of armed conflict the authorities have failed to create mechanisms of transitional justice 83 and international and national human rights agencies in the capital are attempting to fashion a transitional justice agenda. 78 Ibid. 79 Robins 2009. 80 e.g. UN 1998. 81 International Covenant on Economic, Social and Cultural Rights 1966, Article 2. 82 Arbour 2007, 8. 83 After this research was made, the Government made a payment of „relief‟ of 100,000 rupees (a little over $1,300) to most families of the disappeared. 15 Human rights agencies, particularly at the senior level, are dominated by members of elites. The indigenous and dalits are excluded from jobs with both national and international rights agencies as they are from many other sectors, as a result of low educational achievement and discrimination. There are no dalits in leadership positions in civil society 84 and few from indigenous communities. Whilst agencies have made efforts at more inclusive staffing policies in recent years, those defining the transitional justice agenda are remote from most victims in terms of class, ethnicity, caste, education, language and geography. Lawoti 85 has studied the approaches to inclusion of Arnstein and Cornwall 86 in the Nepali context, defining modes of inclusion as: manipulation, cooptation, instrumental, consultative and transformative, with only the latter seeking to change the unequal structures that create exclusion. One can try to understand the relationship between rights agencies and victims in Bardiya on these terms. Efforts at consultation are well represented by the one published effort at consultation that sought to understand victims‟ views of transition, a largely quantitative survey of victims. 87 This study tells us something of the priorities of those who prepared the survey, dominated as it is by questions about prosecutions and a TRC, and only little about the fact that the priorities of victims are largely social and economic 88 . This is consultation but not on the terms of those being consulted, and thus fails to even satisfy Lawoti‟s definition of instrumental inclusion; such a survey aims to lend legitimacy to an agenda that has not changed in response to victims‟ views and is best described as cooptation. One remarkable phenomenon was when human rights NGOs chose to invite victims to meetings in Kathmandu. Such meetings typically operated at a level entirely beyond the typical Bardiya villager: they would be conducted in English or Nepali and would typically be discussing international precedents in transitional justice and the implications for Nepal. The role of the victim was to speak about his or her suffering when requested and be listened to in a respectful silence. Often a victim would break down in tears, demonstrating how highly disturbing the exercise was for them, but they would be otherwise ignored during the meeting. This appears to represent the fetishisation or commodification of victims: their role was symbolic, to acknowledge both their existence and their supposed primacy in the ongoing discussion, but not to permit them to actually impinge on agendas being set by others. This is a mode of inclusion best described as manipulation: victims, particularly from marginalised communities, are included in such meetings as tokens, but no weight is given to their agenda or to the role their indigenousness played in their becoming victims. This permits the rights agencies to ignore the extent to which ethnicity and caste impact on victimhood, and exclude such topics from the transitional agenda. Beyond such contacts the interface between the global rights discourse and a Tharu victim in Bardiya is tenuous, being made through a layered structure of foreign donors, national NGO workers at several levels, and activist victims. Such contact as there is occurs between victims or their representatives, such as those from CVC, and regional or district agency offices who may travel to the villages. The activities of the agencies in turn consist largely of training: exercises in the dissemination of the rights discourse to victims and others, including the emphasis on civil and political rights and a judicial approach. In order to benefit from the patronage of agencies, those who seek to represent victims must learn the global rights language, 89 and only those who present an agenda that coincides with the legalist programme of the agencies will benefit from 84 Bhattachan, Sunar and Bhattachan (Gauchan) 2007. 85 Lawoti 2009. 86 Arnstein, 1969; Cornwall 2002. 87 ICTJ (International Centre for Transitional Justice) and Advocacy Forum 2008. 88 Robins 2009. 89 Language here is both literal and metaphoric: most Tharu speak Nepali badly if at all. 16 invitations to Kathmandu programmes and potential support for activities. The domestic rights agencies are funded by international donors who have little direct contact with victims and depend upon the agencies themselves for their understanding of victim attitudes, and so those whose agenda does not coincide with such groups are not funded. The almost complete absence of support to CVC, the oldest and largest district victims‟ organisation in the country, appears to confirm this. In interviews with the leader of the Bardiya Family Association, the nature of the interaction between victims‟ representatives and those representing the human rights discourse was made clear. The Family Association was unable to forge substantial relations with donors: The donors won‟t trust organisations in Bardiya and the big organisations in Kathmandu are backed by the donors but they fail in Bardiya. [...] I and the members represent the victims and we are in favour of bringing programmes if donors show up. But the big organizations work in accordance with the interests of donors. On the other hand, we set our programs on the basis of ground realities but the donors don‟t give money to us.‟ 90 The one embassy donor CVC had found withdrew their funding to that of a national victims‟ organisation being set up by one of the leading human rights agencies, to the bewilderment of the existing association. Ultimately, CVC was told that if it sought to join the national network it would have to change its remit from representing families of the disappeared to representing all victims of the conflict, otherwise it would receive no funding. As a result, the entire basis of the association was changed due to the use of financial pressure by those with funds in the capital. This demonstrates that whilst rights agencies in Nepal are working to mobilise victims, an apparent prerequisite to empower victims‟ groups, they are being mobilised on terms set by elites rather than by victims themselves. A constant complaint of the CVC president was that the human rights agencies are led by members of elites from Kathmandu, who have no understanding of the Tharu of Bardiya or their needs, and spend most of their funds in the capital, rather than where victims are. Victim families are aware that large sums are spent on human rights work, much of it paying salaries that are considered enormous by their standards, to both foreigners and Nepalese. Given that their demands are primarily economic it is inevitable that they also compare their own poverty with the apparent wealth of the human rights industry in their country. The class and caste composition of the human rights agencies is largely elite; there are no Tharu in the Kathmandu office of any large rights agency and even in Tharu majority areas, such as Bardiya, almost all agency staff are non-Tharu and non Tharu speaking. Meetings with victims in rural Bardiya run by one of the most prominent Nepali human rights agencies were attended as part of this research. The agency staffer was not Tharu and as a result many of the victims attending understood rather little. No effort was made to ask victims about their needs, the priorities were to articulate an agenda emphasising prosecution of perpetrators, and to discuss the details of a proposed Truth and Reconciliation Committee, where the agency was opposing Government proposals to enshrine amnesty. The exercise was one of promoting an agenda originating with elites in the capital over that of the victims of the conflict. In Bardiya the rights agencies are perceived as not seeking to address the structural issues that caused the conflict, notably that of exclusion: „Since the human rights of the people have been violated on a caste basis, I believe that human rights issues should be raised on a caste basis as well. They have been trying to 90 Personal interview with leader of CVC Bardiya, Kathmandu September 2008. 17 make us backward showing that we are not educated people and we could not speak English. [...] They want us to be merely beneficiaries. This is Brahministic thinking, traditional thinking as practiced by the petty kings in the past. [HR agency leader] represents those people having a similar mind-set [...] we were not [just] backward; we were forced to remain backward.‟ 91 Here a direct connection is made between high caste leadership of transitional justice advocacy and traditional high caste exclusion of others. Because those leading the transitional justice effort in civil society are themselves from the very elites who benefitted from social stratification and inequality, these social relations are intrinsic to the relationship between the indigenous victims in Bardiya and the representatives of the global rights discourse. Additionally, the explicit political alignment of many rights workers impacts on their attitudes and activities. Most human rights workers and agencies are associated formally or otherwise with a party 92 that participated in Governments that fought the Maoist insurgency, and whose members were targeted by the Maoists during the insurgency. This gives additional reason for the Tharu of Bardiya to believe that such people have no commitment to the fundamental changes in Nepali society that the post-conflict dispensation is committed to. Conclusions: Toward a victim-centred transitional justice Ignatieff has written that „Human rights matter because they help people to help themselves. They protect their agency.‟ 93 This study suggests that in a post-conflict transition in an unequal society the human rights discourse can be used to do just the opposite; that indigenous victims are denied agency by elites using the discourse of human rights. For the indigenous villagers of rural Nepal who became the victims of conflict human rights is a discourse that comes „from above‟ and is largely disseminated by members of elites who have traditionally benefited from the historic exclusion of the indigenous (and others). As a result of the narrowness of the transitional justice agenda that emerges, its emancipatory potential is highly constrained: it seeks to address the violations of the conflict, but defines these in a limited way and seeks remedies that emerge from a legalistic analysis. It makes no effort to address the unequal social relations that led to the conflict, and more than this the human rights discourse itself appears to act to maintain and enforce the most fundamental power relations within Nepali society. This appears to confirm what has been written about the limits of rights as an instrument of emancipation in unequal societies: „… [rights] may become ... a regulatory discourse, a means of obstructing or co-opting more radical political demands [...] The point is that rights converge with powers of social stratification and lines of social demarcation in ways that extend as often as attenuate these powers and lines.‟ 94 91 Personal interview with leader of CVC Bardiya, Kathmandu September 2008. 92 Communist Party of Nepal – Unified Marxist Leninist (UML); indeed, one of the most important national agencies INSEC (Informal Sector Service Centre) is run by someone who stood in early 2009 for the position of President of UML. 93 Ignatieff 2001, 57. 94 Brown 1995, 98. 18 The first priority for transitional process in Nepal to challenge such constraints is by seeking to broaden it beyond the legalistic to include those elements, notably the social and economic, which challenge the social injustice that led to conflict. To describe the interaction of the global human rights discourse with the Tharu victims of Bardiya as a simple binary or dialectical relationship between the global and the local is to simplify the situation. In practice we see that human rights are constructed through a complex and layered process. The global discourse is instantiated through the actions of international actors and national human rights agencies working in the capital, while contact with the victims themselves is mediated by staff in regional offices and representatives of victims. In this way the human rights discourse filters down to victims who know nothing of rights and articulate their demands in terms of needs, which are translated into rights-based language for the consumption of those higher up the chain. In this way, the true desires of victims are sublimated into a rights-centred discourse regardless of how relevant it may be to what is actually being articulated. This study supports the contention that relationships between those who represent the human rights discourse in the developing world and excluded victims of violations have embedded within them power relations of a colonial character: 95 elites who have access to the discourse import skewed power relations into the practice of human rights. This both dismisses communities of rural victims as a site of production of human rights, in favour of concepts imported from the capital and ultimately from the West, and renders certain forms of violence, notably that inherent in local power relations, invisible to the discourse. This is done by steering funds and granting access to elites (in civil society and in Government) only to those who have internalised the legalism of the rights discourse. Challenging elite control of the transitional discussion in Government and civil society demands replacing tokenistic attitudes to the incorporation of victim perspectives with genuine participation. Confining transitional justice to a politics of rights under liberal political institutions in which existing power relationships are enshrined, ties any process to the system that produced those power relations. Systems of domination, that include iniquitous property relations and the systematic exclusion of those most impacted both by inequality and conflict (such as the indigenous), must be challenged in any transitional process by recognising the agency of those victimised and challenging power structures that embody the relations that led to conflict. „Examining rights from the perspective of actual struggles makes it possible for analysis to transcend accepted normative parameters of human rights debates, question conceptual categories and expand the range of claims that are validated as rights:‟ 96 Expanding the range of claims made means challenging the legalism of elites, such that social and economic needs of victims, and others, can be considered valid, rights-based demands of transitional justice. Beginning with deeper consultation with affected communities, rights agencies should be working to build capabilities to enable indigenous victims to take part as equals in decision making. If those who purport to represent victims are unable to do this, then it is highly unlikely that the transitional process for which they are advocating will be at all inclusive. Mobilisation of victims must be supported on the basis of their own agendas and not subject to their sanctioning by local and international elites. As a result of the power relations that permeate the practice of human rights in a highly unequal society such as Nepal it is 95 Goodale and Merry 2007. 96 Nyamu-Musembi 2005, 31. 19 problematic to consider the rights discourse as the sole legitimate driver of transitional justice. Whilst human rights remains a tool of strategy and mobilisation for oppressed groups seeking justice after conflict, victims‟ organisations offer an alternative route, in which victims themselves have full agency, free of agendas set by elites and less constrained by traditional power relations to use the language of rights or not. Such locally-grown, „non-human rights‟ efforts to both address the issues arising from conflict and to fight for political and social change in the system that led to conflict can provide unique input to create transitional justice process that can give space to the agendas of victims. 20 References Abu-Nimer, Mohammed. 2001. Reconciliation, justice, and coexistence: Theory and practice. Maryland: Lexington. Advocacy Forum. 2007. Transitional Justice: Advocacy Forum newsletter, September – October 2007. Kathmandu: Advocacy Forum. Aguirre, Daniel and Irene Pietropaoli. 2008. Gender equality, development and transitional justice: The case of Nepal. The International Journal of Transitional Justice 2:1-22. Arbour, Louise. 2007. Economic and social justice for societies in transition. NYU Journal of International law and politics 40(1):1-27. Armbrecht, Ann. 2009. Thin places: A pilgrimage home. New York: Columbia University Press. Arnstein, Sherry R. 1969. A Ladder of Citizen Participation. JAIP 35 (4): 216-224. Battachan, Krishna B.2008. Indigenous nationalities and minorities of Nepal. Kathmandu: Nepal Federation of Indigenous Nationalities. Bhattachan, Krishna B.,Tej B. Sunar and Yasso Kanti Bhattachan (Gauchan). 2007. Caste based discrimination in Nepal. Delhi: Indian Institute of Dalit Studies (HDS), and Copenhagen: International Dalit Solidarity Network. Bowd, Richard and Alp Ozerdem (eds.). In press. Participatory Research Methodologies in Development and Post Disaster/Conflict Reconstruction. London: Ashgate. Brown, Wendy and Janet Halley. 2002. Introduction. In Brown et al. 2002: 19. Brown, Wendy and Janet Halley, Mark Kelman and Gillian Lester. 2002. Left legalism / left critique. North Carolina :Duke University Press. Brown, Wendy. 1995. States of injury: Power and freedom in late modernity. NJ: Princeton University Press. Cheria, Anita, Edwin Nanda Kumar Kandangwa and Khemraj Upadhyaya. 2005. Liberation is not enough: The Kamaiya movement in Nepal. Kathmandu: ActionAid Nepal. Chhetri, Ram, B. 2005. The Plight of the Tharu Kamaiyas of Nepal: A Review of Social Economic and Political Facets. Occasional Papers in Sociology and Anthropology, Central Department of Sociology and Anthropology, Tribhuvan University: Kathmandu. Conway, Dennis, Keshav. Bhattarai and Nanda. R. Shrestha. 2000. Population–environment relations at the forested frontier of Nepal: Tharu and Pahari survival strategies in Bardiya. Applied Geography 20: 221–242. Cornwall, Andrea. 2002. Locating citizen participation. IDS Bulletin 33 (2): 49 – 58. Danida. 2004. Social institutions of the Tharu. Kathmandu: Danida. de Haan, Arjan. 1998. Social Exclusion: Enriching the Understanding of Deprivation, London: DFID. Duschinski, Haley. 2008. Try out participatory justice, Combat Law 7(4). (Available online at: www.combatlaw.org/print.php?article_id=1181&issue_id=41) Falk, Richard. 1981. Human rights and state sovereignty. New York: Holmes and Meier. 21 Goodale, Mark and Sally A. Merry. 2007. The practice of human rights: Tracking law between the global and the local. Cambridge: Cambridge University Press. Goodale, Mark. 2007. Locating rights, envisioning law between the global and the local. In Goodale 2007: 1-38. Government of Nepal. 2006. Comprehensive Peace Agreement. Kathmandu: Govt. Of Nepal. Guneratne, Arjun. 2004. Many Tongues, One People: The Making of Tharu Identity in Nepal. Ithaca: Cornell University Press. Hangen, Susuan. 2007. Creating a new Nepal: The ethnic dimension: Policy Studies 34. Washington: East-West Centre. Höfer. Andras. 2004. The Caste Hierarchy and the State in Nepal - A Study of the Muluki Ain of 1854. Kathmandu: Himal Books. Human Rights Watch and Advocacy Forum. 2008. Waiting for justice: Unpunished crimes from Nepal’s armed conflict, Kathmandu: HRW and AF. Human Rights Watch. 2004. Between a rock and a hard place: Civilians Struggle to Survive in Nepal’s Civil War. Washington: Human Rights Watch. ICRC (International Committee of the Red Cross). 2008. Missing persons in Nepal: The right to know. Kathmandu: ICRC. ICRC (International Committee of the Red Cross). 2009. An assessment of the needs of the families of the Missing in Nepal, Kathmandu: ICRC. ICTJ (International Centre for Transitional Justice) and Advocacy Forum. 2008. Nepali Voices: perceptions of Truth, Justice, Reparations and The Transition in Nepal. Kathmandu: ICTJ / AF, 2008. Ignatieff, Michael. 2001. Human rights as politics and idolatry. NJ: Princeton University Press. INSEC. 2007. Human Rights Yearbook 2007. Kathmandu: INSEC. Available online at: http://www.inseconline.org/YB_Book.php INSEC. 2008 Impaired accountability: State of disappearance in Nepal. Kathmandu: INSEC. Donnelly, Jack. 1984. Cultural Relativism and Universal Human Rights. Human Rights Quarterly 6: 400-419. Joinet, Michael. 1997. Question of the impunity of perpetrators of human rights violations (civil and political. UN/Doc. E/CN.4/Sub.2/1997/20/Rev.1. ?:?. Kabeer, Naila and Ramya Subrahmanian. 2005. Inclusive Citizenship: Meanings and Expressions. London: Zed Books. Kriesberg. Louis. 2001. Changing forms of coexistence. In Abu-Nimer 2001: 47-86. Lawoti, Mahendra. 2009. Dissecting ‘inclusion. The Kathmandu Post, April 3 rd 2009. Leve, Lauren. 2007. „Secularism is a human right!‟: Double binds of Buddhism, democracy, and identity in Nepal. In Goodale and Merry 2007: 78-114. Mani, Rama. 2008. Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development. The International Journal of Transitional Justice. 2: 253 - 265, McEvoy, Kieran and McGregor, Lorna. 2008. Transitional Justice from Below: An agenda for research, policy and praxis. In McEvoy and McGregor. 2008: 1- 14. 22 McEvoy, Kieran and McGregor, Lorna. 2008. Transitional justice from below: Grassroots activism and the struggle for change. Oxford: Hart, 2008. McEvoy, Kieran. 2008. Letting go of legalism: Developing a “thicker” version of transitional justice. In McEvoy and McGregor. 2008: 15-46. Nyamu-Musembi, Celestine. 2005. Toward an actor-oriented perspective on human rights. In Kabeer and Subrahmanian. 2005: 31-49. OHCHR (UN Office of the High Commissioner for Human Rights), 2008. Conflict-related disappearances in Bardiya district. Kathmandu: OHCHR. Orentlicher, Diane. 1991. Settling accounts: The duty to prosecute human rights violations of a prior regime, Yale Law Journal 100: 2537. Orentlicher, Diane. 2007. Settling accounts revisited: Reconciling global norms with local agency. Int. Journal of Transitional Justice, 1: 10-22 Pannikar, Raimundo. 1984. Is the Notion of Human Rights a Western Concept? Cahier, 81: 28- 47. Pasipanodya, Tafadzwa. 2008. A Deeper Justice: Economic and social justice as transitional justice in Nepal. The International Journal of Transitional Justice 2: 378–397. Pigg, Stacey L. 1992. Inventing Social Categories through Place: Social Representations and Development in Nepal. Comparative Studies in Society and History 34(3): 491-513. Pigg, Stacey L. 1996. The Credible and the Credulous: The Question of "Villagers' Beliefs" in Nepal. Cultural Anthropology 11( 2): 160-201; Pollis, Adamantia and Peter Schwab. 1989. Human Rights: A Western construct with limited applicability. In Pollis and Schwab. 1989. Pollis,Adamantia and Peter Schwab. 1989. Human Rights: Cultural and ideological perspectives. New York: Praeger Publishers Inc. Rajagopal, Balakrishnan. 2003. International law from below, Cambridge: CUP. Republic of South Africa. 1999. Truth and Reconciliation Commission Final Report. Pretoria: South African Truth and Reconciliation Commission. Robins, Simon. In press. A participatory approach to ethnographic research with victims of gross human rights violations: Studying families of the disappeared in post-conflict Nepal. In Bowd, and Ozerdem 2009. Robins, Simon. 2009. An assessment of the needs of families of the Missing in Nepal. York: PRDU. Available online at: http://www.simonrobins.com/NepalMissingReport-Robins.pdf Robins, Simon. 2009. Whose voices? Understanding victims' needs in transition. Journal of Human Rights Practice, 1(2): 320. Scott, James C. 1999. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press. Speed, Sharon. 2008. At the crossroads of human rights and anthropology: Toward a critically engaged activist research. American Anthropologist, 108(1): 66 - 76. Stammers, Neil. 1999. Social Movements and the Social Construction of Human Rights. Human Rights Quarterly 21.4: 980-1008. Teitel, Ruti G. 2000. Transitional Justice. Oxford: OUP. 23 Teitel, Ruti G. 2003. Transitional justice genealogy. Harvard Human Rights Journal 16: 69 - 94. Thapa, Deepak and Bandita Sijapati. 2003. A kingdom under siege: Nepal’s Maoist Insurgency, 1996-2003. Kathmandu: The Printhouse. UN. 1966. International Covenant on Economic, Social and Cultural Rights. ?:?. UN. 1998. Indivisibility and interdependence of human rights stressed by speakers as third committee discussion of human rights matters continues. UN Press Release GA/SHC/3501. ?:?. UNDP. 2004. UNDP Human development Report 2004. Geneva: UNDP. Available online at: http://www.undp.org.np/publication/html/nhdr2004/index.php Upadhay, S.N. 2004. Improving Donor Effectiveness in Combating Corruption Sharing Nepal‟s Experience. Paper prepared for the DAC Development Partnership Forum: Improving Donor Effectiveness in Combating Corruption organised jointly by OECD Development Assistance Committee and Transparency International, 9-10 December 2004. Wilson, Richard A. 1997. Human rights, culture and context: An introduction. In Wilson, 1997. Wilson, Richard A. (ed.) 1997. Human rights, culture and context: Anthropological perspective. London: Pluto Press. 
work_imdf4hbumvh5pj2pxfyezacbmi	----	Durham Research Online Deposited in DRO: 08 April 2015 Version of attached �le: Accepted Version Peer-review status of attached �le: Peer-reviewed Citation for published item: Turner, C. (2013) 'Deconstructing transitional justice.', Law and critique., 24 (2). pp. 193-209. Further information on publisher's website: http://dx.doi.org/10.1007/s10978-013-9119-z Publisher's copyright statement: The �nal publication is available at Springer via http://dx.doi.org/10.1007/s10978-013-9119-z. Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro�t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 http://dro.dur.ac.uk http://www.dur.ac.uk http://dx.doi.org/10.1007/s10978-013-9119-z http://dro.dur.ac.uk/15047/ http://dro.dur.ac.uk/policies/usepolicy.pdf http://dro.dur.ac.uk 1 Deconstructing Transitional Justice Catherine Turner Transitional Justice Institute University of Ulster Shore Road Newtownabbey BT37 0QB Tel: 028 90 366693 Email: cj.turner@ulster.ac.uk ABSTRACT Transitional justice as a field of inquiry is a relatively new one. Referring to the range of mechanisms used to assist the transition of a state or society from one form of (usually repressive) rule to a more democratic order, transitional justice has become the dominant language in which the move from war to peace is discussed in the early 21 st century. Applying a deconstructive analysis to the question of transitional justice, the paper seeks to interrogate the core assumptions that underlie transitional justice literature in relation to the relationship between law, politics and justice. As a discourse, transitional justice is replete with antinomies or binary oppositions, that of war and peace being the most obvious. Therefore the essentially decsontructible structure of differánce already exists within the concept. By examining the ways in which legal and political narratives are framed and reproduced, the paper seeks to deconstruct the opposition between law and politics on which much of the transitional justice literature rests. The article does not purport to provide a definitive critical analysis of transitional justice but aims to provoke debate and to prompt critical scholars to engage with the themes raised by providing an introductory analysis of some of the core features of a field of inquiry which seems ripe for deconstruction. KEYWORDS Transitional Justice; deconstruction; violence; law; justice; politics mailto:cj.turner@ulster.ac.uk 2 1. Introduction to Transitional Justice Transitional justice as a field of inquiry is a relatively new one. Referring to the range of mechanisms used to assist the transition of a state or society from one form of (usually repressive) rule to a more democratic order, transitional justice has become the dominant language in which the move from war to peace is discussed in the early 21 st century (Bell 2009). From its origins in political science, documenting the efforts of states to deal with the crimes of past governments, such as the military dictatorships in Latin America, transitional justice has taken on the form of a normative framework for dealing with political transformation (IJTJ 2007). Central to this evolution has been a resurgence of the idea of international human rights law and belief in the capacity of law to transcend partisan politics and therefore mediate social change. The rise of transitional justice has been stellar, but it is a field in which theory has failed to keep pace with doctrinal and empirical developments. While there has been significant critical engagement with the requirements of transition, notably but not exclusively from feminist legal scholars, this critique has focused on the need to ensure a more broadly defined and nuanced definition of transitional justice. To date there has been remarkably little theorisation of the concept of transitional justice itself and the way in which this new concept has shaped the way in which we think about law and politics. Applying a deconstructive analysis to the question of transitional justice, the paper seeks to interrogate the core assumptions that underlie transitional justice literature in relation to the relationship between law, politics and justice. A number of features of transitional justice lend themselves particularly well to deconstructive analysis. As a discourse, transitional justice is replete with antinomies or binary oppositions. The most obvious of these are those of war and peace, and also that of peace and justice which characterised early transitional justice debates. However also included within the discourse are the oppositions between democratic and non- democratic, and repressive and transformed, with the distinction between good and evil that this implies. Similarly operating is the distinction between victim and perpetrator that shapes the boundaries of political inclusion and exclusion in transitional contexts. Opposition therefore goes to the very heart of transitional justice discourse and is the foundation upon which theorising has occurred. Therefore the essentially decsontructible structure of differánce already exists within the concept of transitional justice. It is not then surprising that research and advocacy in the field has also tended to rest on binary divisions, for example between procedural and substantive models of law, and the distinction between law and politics per se. However rather than problematising or interrogating these dichotomies, transitional justice scholars to date have tended to speak of law as a means of moving from one to the other. The assumption that appears to underlie much of the theorisation of the role of law in transition is that it is necessary to move from one to the other- from war to peace, for example, or from partisan politics to the rule of law. Also contained within this is an implicit assumption that the move from one to the other is teleologically determined progress (Teitel 2003). By examining the ways in which legal and political narratives are framed and reproduced, the paper seeks to deconstruct the opposition between law and politics on which much of the transitional justice literature rests. The article does not purport to provide a definitive critical analysis of transitional justice. Any one of the 3 themes raised in the article could be the subject of conferences, research papers and books. Rather it aims to provoke debate and to prompt critical scholars to engage with the themes raised by providing an introductory analysis of some of the core features of a field of inquiry which seems ripe for deconstruction. The article is structured around three key moments in the development of transitional justice: the foundation of the disciplinary space; its constitutive exclusions; and the return of that which is excluded (Beardsworth 1996). Section one will explore some of the central features of transitional justice. It will do this by examining it through the lens of transitional justice as a performative force which has shaped the boundaries of how we think about question of justice in the aftermath of conflict. It will consider the way in which transitional justice engages questions of violence, law and politics in transitional contexts and the idea that law can be regarded as playing a role that is distinct from that of politics. Section two seeks to interrogate the underlying assumptions on which the discourse of transitional justice is founded, exploring the idea that law is the means by which justice in transition can be achieved. It will focus in particular on the way in which the boundaries of transitional justice are shaped by the juxtaposition of law with politics and the role that law plays in ensuring the ongoing preservation of the disciplinary space. Section three will focus in more detail on the concept of justice in transition. It will examine some of the divergent priorities of transitional justice and consider these combine to shape an overarching narrative of justice in transition. It will examine the relationship between law and justice that is presented in the transitional justice literature, drawing on the work of Derrida to question the extent to which law is capable of delivering justice. In particular section three will ask whether the exclusionary structure of law itself means that justice is irreducible to law in transitional societies. It will do this in the context of the imposition of regulative ideals and the translation of transcendental ideas into empirical reality. Deconstructive analysis should reveal both the possibilities as well as the dangers of relying on law as a means of achieving justice in transition. For while it is clear that Derrida regards law as necessary, and as a means of pursuing justice, it is equally clear that law cannot in and of itself achieve justice (Derrida 1992). Therefore a balance must be struck when attempting to achieve justice through law. On the one hand law can provide a framework for the pursuit of justice, but on the other it should not be regarded as the same thing as justice. 2. The Performative Force of Transitional Justice a. The emergence of practice Transitional justice as a concept was unheard of in international law prior to the end of the Cold War. While retrospective claims are often made about the genesis of transitional justice in the trials at Nuremberg, the term itself was not applied until the 1990s (Arthur 2009) 4 Efforts at achieving what is now termed transitional justice during the 1970’s and 1980s had been subject to political wrangling, subject to whatever concession on human rights could be secured politically rather than rooted in a normative (let alone international) obligation to pursue a particular course of action (Teitel 2003). Work in the field in the early years consisted primarily of the documentation of efforts that were already being made by states to deal with abusive governments. Dancy describes this phase as the “cataloguing of those structural realities within political transitions that harness the possibilities for victims’ justice” (Dancy 2010, p 356). With the end of the Cold War and the apparent triumph of liberalism, a new found confidence allowed normative conclusions to be draw from this documentary work, and those conclusions to be drawn internationally as a means for dealing with past human rights abuse (Orentlicher 1991). Although operating within distinct legal and political frameworks at the time, each of the regimes of post conflict reconstruction, human rights and international criminal law contributed to the emergence of an overarching conceptual field of transitional justice (McEvoy 2007)- one which sought to reconcile the key aims of each of these disciplines or endeavours within a coherent conceptual framework. It is in this immediate post Cold War period that a distinctive normative concept begins to emerge, resting on the twin pillars of providing justice for victims of human rights abuse while also supporting the emergence of democracy. Arthur, in her conceptual history of the field, suggests that those who were involved in debates at the time regarded the project as offering an intellectual framework that was previously absent for discussing issues that were raised in postwar societies such as Germany, Spain, Greece and Argentina (Arthur 2009, p 327). It was in this period, however, that law and legalism began to colonise the field. Transitional justice was initially narrowly defined, dealing solely with judicial responses to human rights abuse and operating alongside other regimes of post conflict reconstruction, such as state building and democratisation that operated in a less legal and more politically oriented framework. Transitional justice emerged as an international criminal law response to human rights abuse, entailing a strict understanding of “justice” as “criminal justice”. Transitional “justice”, in the form of prosecution for past human rights abuse, was simply one among many divergent tools that could be used to move a state from conflict to peace, as evidenced in the separate frameworks for action. Gradually, however, the scope of transitional justice expanded. Criminal prosecutions came to be seen as a means to address more broadly defined ideas of political and social transformation (Akhavan 1998), and the debate centred around the opposition between peace and justice. This then moved on to a division between truth and justice, and the extent to which truth either represented or denied justice. With each new step the field of transitional justice expanded to incorporate a broader range of objectives. The interplay of these seemingly oppositional concepts exposed the way in which the boundaries of transitional justice were subject to the ongoing and contested interpretation. For example, as seemingly peripheral concepts such as truth and reconciliation jostled for position and were represented as integral to justice rather than opposed to it, the parameters for inclusion within the definition of transitional justice expanded. In so doing transitional justice also began to encompass many of the political elements it had previously worked alongside (Bell 2009; cf IJTJ 2007). They became subsumed into a much broader narrative of transition, increasingly 5 regulated by law. This broadened (international) mandate was confirmed in the 2004 Report of the Secretary General on Transitional Justice and the Rule of Law in Conflict and Post Conflict Societies in which the goals of transitional justice were explicitly linked with those of peace and democracy, and in particular with the consolidation of the rule of law. Bell sums this development up as follows: “The attempt to find and articulate a common legal framework gave rise to a situation where particularised relationships between dealing with the past and constitutional settlement ... were narrated as part of the one phenomenon of how to account for the past and satisfy international standards.” (Bell 2009, p 16). This was all done within the framework of increased emphasis on rule of law responses to conflict, increasingly through the implementation of international law standards (UN 2004 & 2011).Adopting a more broadly defined purpose and modus operandi was central to the evolution of the concept, which is in large part defined by this mandate of achieving peaceful and lasting change in transitional societies. The centrality of this mandate can be seen clearly in the theorisation of the concept of transitional justice. b. Theorisation of the model In 2000 Ruti Teitel published her seminal text Transitional Justice, in which she outlined what she saw as an emerging conception of the field and its core underlying assumptions. This text is chosen as illustrative of thinking in the field at the time. Teitel brings together discussion of previously disparate mechanisms for dealing with the past, including trials, truth commissions, lustration and constitutional reform, each of which had their own distinct aims and objectives, and discusses them within the new conceptual framework of transitional justice. A significant focus of this inquiry is the role that law can play in facilitating political transition. From the year 2000 transitional justice, it has been argued, has existed as a “self conscious field of practice and study...” (Bell 2009, p 8) the label used to denote a general conception of justice in political transition characterised by legal responses to past injustice (Teitel 2000). In particular the shift that occurred at this time was one from viewing justice that operated alongside other political mechanisms in transition, to transitional justice as necessary to deliver successful transitions – peace through justice. In particular, Teitel’s conceptualisation of the field highlights the shift in understandings of the role of law in post conflict situations, moving away from existing and clearly defined regimes of legality to one which is more contingent and shaped by the circumstances in which it operates. The re- conception of law as fluid and capable of providing a framework for transformation laid the foundations for the domination of the field by law. Once the traditional rigidity of law and legal process had been stripped away almost any reform or transformative initiative could be justified using the mantle of law. From the turn of the century what has emerged is a new juridical concept of transitional justice. The emergence of this concept represents a performative event of considerable force in international law. The effect of this performative event has been the delimitation of a “theatrical space” within which all efforts at peace making must play out (Derrida 2001, p 29). The effect of this performative force is not limited to the evolution of the academic discourse of transitional justice. In very practical 6 terms the conceptualisation of transitional justice as a distinct field of endeavour has profoundly influenced the way in which it has developed in practice. The two are therefore integrally linked. The emergence of a theorised concept of transitional justice represented the constitution of a new field, a new way of constructing meaning in relation to justice. Once a normative element was established in transitional justice literature, all efforts at peacemaking became subject to evaluation according to the requirements of that framework itself. This was clearly evident in respect of the belief in the rule of law inherent in transitional justice thinking. This new international order facilitated the emergence of new normative frameworks for action and evaluation (see generally Bell 2006). Despite the existence of a complex web of interrelated claims to the genesis and aims of transitional justice, an overarching narrative emerged dominant, evidenced in a convergence of opinion that certain unifying principles of justice in transition exist and that these normative principles are embodied in mechanisms such as trials, truth commissions and reparations (Subotic 2012, p 120). Transitional justice initiatives could be evaluated on the extent to which they delivered “justice” as defined in international law and action in transitional contexts came to be legitimated by the label of transitional justice. In this way the emergence of the model of transitional justice can be seen as a performative event – a coup de force or rupture with the preceding order (Derrida 1992). The coup de force was one in which the role of politics which had been the dominant force both nationally and internationally, was usurped by that of law. The way in which this force was legitimised, however, was the promise of a new beginning, that the new model of transitional justice represented a new system to replace the corrupt or immoral system it replaced (Douzinas 2005, p 175). In this way the field of transitional justice holds itself apart from earlier (failed) models which are found wanting in terms of their compliance with set standards of justice. The new model represents a break from the need to trade justice against peace, and promises a future in which peace will be based on justice. The emergence of this concept of transitional justice is also intimately linked with the narration of the “end of history” whereby the end of ideological conflict created the conditions for a universalised and post political language of human rights and international justice (Turner 2011). The implications of the performative force of transitional justice remain as yet unclear. Derrida himself acknowledges that the force of the emergence of related concepts such as “crime against humanity” or even “human rights” can be seen either as “an immense progress, an historic transformation” or alternatively as “a concept still obscure in its limits, fragile in its foundations”(Derrida 2001, p 30).What is clear, however, is that with the emergence of the model of transitional justice came an exclusionary force whereby those who seek redress must do so in the language of transitional justice, thus inherently delimiting the narration of violence and justice (Nagy 2008, p 276). The effect of this is homogenising (McCormick 2001, p 406). Where one concept or one way of seeing the world is placed at the centre of meaning and prioritised over all other ways of thinking, the effect is to marginalise or exclude all other ways of interpreting meaning. The pursuit of the foundational concept becomes a quest for absolute truth which can legitimise subsequent action as neutral and just. This is characterised by the belief that there is one self evident meaning of justice, 7 and one correct way to pursue it, and alternative approaches are marginalised from debate (Fitzpatrick 2005). Transitional justice, despite (or perhaps because of) attempts to introduce greater interdisciplinarity into the field (Bell 2009), remains a resolutely legal field, resting on a number of core assumptions surrounding the capacity of law to mediate social change. 3. Setting the Boundaries –Transitional Justice and the Role of Law As outlined, the unifying feature of transitional justice has become the idea that law can be a means to achieve justice. The promotion of the rule of law through international human rights norms underpins the entire discourse of transitional justice. It is therefore worth explaining in more detail how the role of law is characterised in transitional justice and how law is viewed as responding to the particular circumstances of post conflict societies. Transitional justice rests on the paradox that it seeks to address past failings of the law by replacing it with law. While transitional justice may operate in contexts where law and order has irreparably broken down, in many conflicted societies what is at issue is not the existence of the law but rather its legitimacy in the eyes of the population. Legitimacy may be contested, with ongoing struggle for “ownership” of the law, leaving debates polarised between those who seek to maintain the continuity of law and those who reject the legality of the existing law and demand reform or overthrow of the system (Turner 2010). To try and mediate this dispute, the role of law (and indeed the rule of law) in transition has been vested with particular meaning whereby the stability and continuity of the “rule of law” is maintained, but the substance of the law is re-envisaged as a substantive model that encompasses clearly defined principles of justice. As Teitel states, the role of law in transitional contexts is to “mediate the normative shift in values that characterises these extraordinary periods.” (Teitel 2000, p 11). Law in transition is constructed in relation to the nature of the injustice of the previous regime, deemed to be illegitimate and discredited. This, according to Teitel, provides legitimacy for legal change. What is being advanced, therefore, is not only a shift in understanding of the politics of law in the transitional phase, but also a fundamental shift in understandings of the role and function of law itself. One of the core and accepted premises of transitional justice is that the role of law in transition is fundamentally different from that in ordinary or settled regimes. The operation of law in transition speaks directly to the idea that there is a need to move from one form of society to another, thus responding to the history and narrative of conflict and therefore law. Teitel highlighted three key features of law in transition. These were that law was socially constructed; that international law could transcend domestic legal understandings; and finally that the rule of law could transcend politics. a. Law and the Model of Transition The concept of transitional justice emerged as an overarching conceptual framework for negotiating the move from war, conflict or repression, to a more peaceful society. However as discussed above, the emergence of concept of transition, and consequently of transitional justice, represents a moment of performative force, a moment at which new boundaries are 8 imposed on the meaning of political reform. Once this moment of performative force has occurred, the new concept comes to legitimise all subsequent meaning invested in the concept. However to maintain this, an ongoing act of interpretation is required. In practical terms this means that transitional mechanisms are evaluated within the new parameters of transitional justice, but in conceptual terms it means that the necessity for these mechanisms and reforms must also be interpreted in light of the concept. This ongoing process of interpretation represents a constative force whereby the force of the establishment of the concept itself is constantly re-affirmed through these processes of interpretation (Derrida 1992). It is therefore necessary for the discourse of transitional justice to be justified with reference to the boundaries of meaning established by the origin of the field. Once a concept has been established, once the field had been constituted, the concept assumes legal form of its own. To survive and establish its own authority it must become independent of its history, must assume institutional form in its own right (Derrida 2002, p 47-48). This means that although the force of the origin remains inscribed within the concept itself, the implementation of the new law is re-interpreted as a necessity, as a demand of legality (Douzinas 2005, p 175). This process of interpretation at once conceals and perpetuates the originary force with which the concept was constituted, thus revealing the “differential contamination” between performative force and its preservation (Derrida 1992, p 42). In seeking to deconstruct the relationship between the foundation of law and its ongoing authority, Derrida suggests that there can be no rigorous separation of these two types of force, but rather that the story of the origin of the law will be continually repeated in order to reinforce the legitimacy of the law. The way in which the performative force is maintained is clearly visible in the way in which the role of law in transition has been conceptualised by scholars of transitional justice, and in particular how the role of law has been framed to maintain the distinctness of transitional justice. Central to transitional justice is the idea of a shift from one illegitimate form of government to a more democratic order. Fundamentally, it is assumed that there is a gap between the “law as written” and “law as perceived”- the legitimacy of the law depends on popular understandings of legality. This gap between law and popular perceptions give rise to many of the key antinomies of transitional justice (Campbell & Ní Aoláin 2005). Of particular note are the distinctions between the “is” and the “ought” of law, and between procedural and substantive democracy. These are held out as the key points of tensions in repressive or conflicted societies, the points around which conflict over the legitimacy of law is most likely to arise. These distinctions are also integral to the raison d’etre of transitional justice in that it is precisely these gaps that transitional justice aims to close, using legal form itself to move from one form of legality to another. This is not an altogether uncontroversial claim from a legal point of view. All instances of transitional justice will give rise to conflict over the desirability of maintaining legal certainty as opposed to justifying a new and distinctive conception of law forged in response to an existing set of circumstances, one clearly rooted in history and narrativity. To try and obviate some of this criticism, transitional justice theorists have sought to shift the locus of legal legitimacy from the domestic order to the international, looking particularly to international human rights law as a standard external to the parties which can provide guidance on the necessary course of action (Bell et al 2004, p 306). 9 International human rights law is regarded as a means of bridging the gap in understandings of the role and function of law in transition. Whereas the antinomies of positive and natural law, and procedural and substantive law present dilemmas for the domestic law theorist, Teitel suggests that international law can successfully mediate this tension. She states; “grounded in positive law but incorporating values of justice associated with natural law, international law mediates the rule of law dilemma.”(Teitel 2000, p 21). This emphasis on the incorporation of the values of justice into the substance of law both highlights the link being made in transitional justice between law and justice, but also the fundamental shift from established notions of legality. Where the legality, rather than the existence, of the law is called into question, the new regime speaks directly to the experience of injustice or repression, implicitly acknowledging the failure of law in the past. The role of international law is simply to ease the passage of this new vision of legality, providing as it does independent standards against which the action can be judged (Bell et al 2004, p 308). The importance of incorporating international law, and with it values of justice, in a transitional context is also reflected in Teitel’s third understanding of the role of law in transition – that it is capable of transcending the passing politics of the time. This understanding goes to the heart of transitional justice, and in particular the use of law to achieve transitional outcomes. “Rule of Law” is viewed as a means of simultaneously preserving the continuity of legal form yet marking a break from the old regime and enabling normative change. Although critical of the turn to legalism, McEvoy succinctly outlines what he terms the “seductive qualities of legalistic analysis”. He states “Claims that the rule of law speaks to values and working practices such as justice, objectivity, uniformity, rationality etc are particularly prized in times of profound social and political transition.” (McEvoy 2007, p 417) Although Teitel and others acknowledge the politically contingent nature of law in transition, most agree that law fulfils an important symbolic function in such contexts. Campbell and Ní Aoláin see law in transition as providing the means to confront human rights abuses through the application of legal procedure to narrative forums, and providing a “safe and stable” means to assist the journey (Campbell & Ní Aoláin 2005, p 188). The conception of law in the transitional justice literature is also regarded as a key source of democratic legitimacy. Rather than being held hostage to politics, the application of legal form is seen as a means of transcending existing political conflict and allowing a society to move towards a new form of governance, shielded by the formality of law and legal procedure. The rule of law is represented as providing a new site of contestation, bounded by legality. In this way the interpretation of the role of law in transition ensures the ongoing constitution of the field. Transitional justice, as outlined, above, emerged in attempts to deliver legal accountability at times of political change. It is therefore foreseeable that the field should be concerned with maintaining its essence of legal normativity. This is done through the juxtaposition of law with politics in transitional contexts. Law is represented as embodying values of justice that are absent from politics. It is further portrayed as a necessary means of transcending politics and ensuring that just outcomes are achieved. Each time law is interpreted or applied in this way the performative force of the concept of transitional justice 10 is repeated. The patterns of inclusion and exclusion inherent in the constitution of the field are replicated through the interpretation of some mechanisms as falling legitimately within the scope of transitional justice and others as falling outside that scope (for examples of this tension see Dugard 1997; Sarkin 2001). Politics remains the excluded trace which helps to define the limits of transitional justice. This contrast with politics helps to provide law in transition with its own identity, uniqueness and unity. The boundaries of transitional justice are determined by a system of positive laws and conventions which define its character (Derrida 1987). It must be clearly visible what is contained within the concept and what remains outside. This limitedness provides the basis for the legitimacy, and for the acceptance of the idea of transitional justice as a distinct field, as separate from passing politics and therefore having the capacity to deliver change (Davies 2001). The legitimacy of this new model of transitional justice depends on it being able to distinguish itself from other values such as politics and morality. The definition of conceptual boundaries to the field of transitional justice opens up the possibility for deconstruction of the field itself. The act of naming processes as “transitional justice” serves to further define the boundaries of the field (Derrida 1987). Therefore he or she who is vested with the power of decision making also exercises the power of definition of the very boundaries of the field itself. The moment of decision serves to maintain the structure of the institution. This raises significant questions over who decides, according to what criteria, the content or narrative of transitional justice? Who sets the priorities? And what effect does this have on competing narratives? These questions are not just of rhetorical interest. They illustrate practical difficulties with establishing a normative regime such as transitional justice which has the power to define and shape processes of social reform. b. Law and “Non Paradigmatic” Transitions Analysis of transitions dominated by dichotomy heavily influenced the constitution of the field and the model of transitional justice that emerged. Early transitions represented “paradigmatic” transitions – those punctuated by the antinomies of war and peace; democratic and non-democratic (Campbell & Ní Aoláin 2005, p 182-184). Teitel’s conception of transitional justice in particular assumes that one can reasonably easily distinguish legitimate from illegitimate uses of law, for example, or repressive versus transformed societies. The rise of non-paradigmatic transitions has presented new challenges in terms of the scope and definition of the field. By the end of the twentieth century the nature of the situations to which the label of “transition” was being applied had altered significantly. Rather than dealing with inter state conflict or military dictatorship, the majority of transitional justice activity was arising as a result of negotiated peace settlements (Bell 2000). The end of a conflict by negotiated agreement meant there were no clear winners or losers. Peace agreements rarely spell out precise transitional requirements, therefore while an agreement can serve as a means of bringing transitional justice on to the agenda, fundamental disagreement can remain over its scope and definition. The power of the label of transitional justice can lead to struggle over ownership of the concept itself and conflict over the scope, definition and priority to be afforded to transitional mechanisms (Turner 2010). Take for instance the example of 11 Northern Ireland. Since the signing of the Belfast (or “Good Friday”) Agreement in 1998 Northern Ireland has undergone wide ranging legal reforms aimed at redressing past failures of law. It is common to speak of Northern Ireland as being in transition (Campbell et al. 2003), and yet there remains a distinct tension over the application of the label of transitional justice and the underlying rationale for human rights reforms (Turner 2010). Well documented, for example, is the perception that demands for dealing with the past are simply part of a broader Republican agenda to discredit the state and re-write the narrative of the conflict (Rolston 2006; Simpson 2009). The model of transitional justice assumes a rupture with a prior regime which is held to be discredited on account of breach with public support and perceptions of legality. It also assumes that this moment of rupture, most often the physical manifestation of conflict, can be isolated from political and social dynamics that have preceded it and be addressed as an exceptional event rather than part of ongoing contestation of norms. In these contexts the very definition of transitional justice can make certain courses of action controversial. In particular the idea that transitional justice requires acknowledgement of past failures can be problematic. Transitional justice itself rests on what Derrida terms “semantic instability” (Derrida 2003, p 105). The application of the label of transitional justice will make an inherent value judgement, make pronouncement on the origins and sustenance of the conflict (Bell 2009; Campbell & Ní Aoláin 2005). In this regard the concept of transitional justice itself is revealed as an external force which is brought to bear on post conflict societies. Within this relationship of force Derrida describes how the dominant power is the one that manages to impose and thus legitimate (indeed legalise) on a national or world stage, the terminology, and thus interpretation that best suits it in a given situation (Derrida 2003, p 105). Thus, rather than maintaining a presence that is independent of politics or morality, the distinction between the legal field of transitional justice and the politics that it aims to transcend is revealed to be an illusion. Far from existing independently from history, politics and morality, transitional justice bears within it traces of all of these influences. This can be seen in the use of the terms “acknowledgement” and “denial” – the assumption being that acknowledgement is a necessary component of transitional justice (see generally Derrida 2001). The implicit demand is that one side concede their story, their experience of the conflict and their narrative must give way to that of the other side. Where there are contested narratives of the conflict at play this demand for acknowledgement is not a value free assumption. Applying the label of transitional justice allows one side to take control of the direction of reform in a way that simply replicates the politics and the violence of open conflict. Yet the interpretation of the concept of transitional justice in a way which seeks to apply ostensibly neutral legal principles to mediate reform serves to replicate patterns of inclusion and exclusion on a micro level (Simpson 2007). Adopting one narrative of conflict over another and favouring it through the application of the rhetoric of transition simply represents the maintenance of the original performative force through the process of interpretation. These three understandings of the rule of law in transition demonstrate the way in which law is regarded both as a means to deliver justice for past human rights abuses, and also deliver 12 sustainable political reform in conflicted societies. Law under this conception has a role to play in telling the story of the conflict, in forging narratives of right and wrong and in responding to those charges. The application of legal form is in and of itself regarded as assisting with the establishment of democratic legitimacy and providing a mediated framework for political conflict. 4. Transitional Justice and the Regulative Ideal Knowledge in transitional justice is constructed around the core of a particular conception of justice – that of the application of human rights law to respond to past human rights abuse. This can have a backward looking element, in terms of delivering justice for victims, embodied in mechanisms such as trials and truth commissions, but it also contains a forward looking element where justice is deemed to consist of the application of human rights law in a way which marks a break from a repressive or abusive past and ensures justice in the future, through for example processes of constitutional reform. From either perspective the interpretation of justice that emerges from the transitional justice literature is legal justice. Justice in transition remains determined by legal rules and standards. In addition to this characterisation of the role of law in transition, however, is the way in which transitional justice as a field (or as a concept) has been characterised. Transitional justice mechanisms are represented as the necessary means of achieving or concretising the abstract concept of justice. In this way transitional justice mirrors a Kantian vision of ethically determined action whereby principles of law and political action can be deduced from transcendental standards. This vision of law is evident in Teitel’s claim that international law incorporates standards of justice associated with natural law. Thus “good” law serves as the bridge between the realms of natural justice and positive law. Derrida notes that it is a common presupposition of both natural and positive lawyers that just ends can be achieved by just means (Derrida 1992, p 32). Purportedly natural law principles are transformed into juridical ones, prescribing rules and setting limits on political action. Central to this vision is the assumption that what ought to be done can be done, and that there is an identifiable means of achieving the demands of ethical action (La Caz 2007). This idea of “good” law that can be deduced from the transcendental realm displaces law from the social to the natural realm (Newman 2001, p 17). Rights are viewed as essential, founded in natural law and therefore having an existence that can be determined independently from history or genesis. Law should be universal – applicable to each individual as if it were a universal law of nature. This transcendental concept of right mediates the relationship between law and politics and becomes the foundation and legitimating concept for the construction of knowledge in respect of right. In this context there is little or no questioning of the right of law (Derrida 1992, p 34). In the case of transitional justice the concept of right takes the form of justice. Following a Kantian logic, there is a standard of justice that can be deduced from transcendental principles and this is translated through law (most notably human rights law). The idea of justice becomes a fixed regulatory ideal, a means of determining action (for a critique of fixed regulatory ideals in this context see Derrida 2003). 13 This idea of a regulatory idea, or rules that can and ought to determine action, speaks directly to the conception of law in transition. Law in transition is represented as marking a fundamental shift from notions of legality, translating transcendental principles into law and providing a more responsive model of law that speaks directly to justice (Teitel 2000, p21). In this way the relationship between ethics (or right) and politics is mediated by law, represented as being based on neutral and impartial principles. Law, following this logic, can therefore legitimately regulate politics. To this extent the form or structure of law (the law of law) is significant. Law is portrayed as having its own unique identity separate to politics and morality. It is this that vests it with its authority and allows it to mediate this divide between transcendental ethical principles and empirical political action. For example, the reduction of human rights to writing increases certainty in what exactly human rights are. In this way the transcendental requirements of justice are translated into the empirical reality of law. Rights are no longer simply the subject of philosophical speculation, they exist because they are posited in internationally ratified instruments. The boundaries of this law are defined by criteria established by positive law and convention (Derrida 1987). As a result law should be capable of providing justifiable solutions to the problems of transition. Similarly, monitoring bodies may engage in interpretation of the precise scope and requirements of posited rights (Mechlem 2009). There can be authoritative and legitimate pronouncement on the content of the right. This again means that rights are not subject to political horse trading but are rather the subject of clearly defined legal obligation. Adjudication can be undertaken on the basis of a legally determined rule, independent of political influence. This separation of legal arguments from political or moral arguments is regarded as a key means of overcoming disagreement (Kingsbury 2002). Where there is a clash or competing conception of right, of morality or of justice, that which is enshrined in law will prevail. Where balancing is required this can be undertaken within the parameters of law itself, under the doctrine of relative indeterminacy. The simple fact of having to balance rights should not undermine the objectivity of the law per se. For transitional justice scholars, the rule of law is regarded as transcending politics and in particular as fulfilling and important symbolic function. Precisely because of the inevitable disagreement over the meaning of justice in transitional societies, law steps in to replace politics as the basis for authoritative decisions (Kingsbury 2002). This apparent depoliticisation of law is a central feature of transitional justice. In the drive towards justice, politics is to be neutralised. Principles of justice are the foundations upon which the new state is to be constructed. They are represented as neutral and objective principles against which the success of transition can be measured (Turner 2008). In this way justice forms an ethical horizon, a pre-determined outcome achieved through the implementation of legal rules. However it is with this question of the foundation of the law that cracks begin to emerge in this concept of law in transition. Transitional societies are defined by political conflict. Where transitional justice mechanisms have sought to foster political reconciliation through legal means, this has often been at the expense of genuine political engagement. The idea of justice, understood as legal justice, is so securely rooted in the foundations of transitional justice that it leaves no space for the ongoing contestation of these concepts of right, law or justice themselves (Sokoloff 2005). In transitional contexts the temptation is to maintain stability at all costs, even where this 14 prevents any meaningful engagement with the underlying assumptions of the transitional project. Politics is relegated to the sidelines of public life, viewed as a threat to the stability of the rule of law (see generally Chandler 2000). The distinction between law and justice collapses, and law becomes the dominant means of regulating difference It is the foundation and inherent limitations of this vision of law that a deconstructive analysis reveals. Deconstruction reveals how law and the discourse of transitional justice, rather than transforming violent conflict, conceal violence at their very foundation. a. Transitional justice as autoimmunity? As outlined, transitional justice aims to be both backward and forward looking. Central to the rationale for transitional justice is the idea that it not only responds to past events but that it seeks to prevent those events from recurring in the future. Seen in this way transitional justice responds to traumatism where the evil comes from the possibility of repetition (Derrida 2003). Although ostensibly seeking redress for past injustice, transitional justice is equally concerned with guarantees of non-recurrence (United Nations 2011). The emphasis placed on rule of law underscores the sense of threat posed by failure to deal with past events and therefore risk a return to violence. In order to address this threat, transitional justice mechanisms such as trials and truth commissions set limits of temporal jurisdiction which define the scope of the events to which a response is required. In doing this the discourse seeks to isolate a certain set of events and represent them as extraordinary, as something which had a beginning and an end and which are somehow separate from normal politics. The events under investigation are represented as fleeting, as simply one event in a long history that must be dealt with and moved on from. In doing this, however, it can be argued that transitional justice itself simply ends up reproducing and regenerating patterns of conflict which it seeks to disarm (Derrida 2003). This is seen in the way in which law is relied upon as the means of achieving justice, in particular the way in which the boundaries of the concept of transitional justice are defined to exclude not only alternative mechanisms for dealing with political conflict, but also to silence dissenting voices that do not fit neatly into the narrative of transition. Inclusion and exclusion from the new political regime is shaped by the narrative of transition and the extent to which groups and individuals are willing or able to articulate their positions in the language of transitional justice. In the quest to immunise against recurrence, transitional justice adopts rigid structures which may ultimately work to destroy that immunity. The desire to achieve closure on past events, to reach a solution in the present that will safeguard the future places boundaries or limits on the possibility of justice. b. Law is not the same as justice The pursuit of human rights in transition tends towards the equation of law, and the implementation of international human rights law, with justice. This is evidenced most clearly in the drive towards legal mechanisms for responding to trauma. International blueprints provide frameworks for justice that reduced the singular to the general- that impose generalised rules, norms and universalised imperatives on societies “in transition”. 15 The originary concept of transitional justice provides a determinate existence – a solid foundation –for the system of meaning, and for the interpretation of “justice”. The assumption that underlies this model of transitional justice is that the application of rules and programmes for action is a means of achieving justice. When seen through a deconstructive lens, the effect of this, while seeking to achieve the impossible – seeking to achieve justice - is simply to deliver the possible in its place (De Ville 2008, p 105). What this means is that in the effort to enshrine principles of justice into the originary act of founding a law (the terms of reference for a tribunal or truth commission, or the drafting of a constitution, for example), a regulatory horizon of expectation is imposed In this act the essence of justice is lost. The imposition of calculated rules buries the possibility of justice (Derrida 1992). Once the outcome of law becomes fixed and determinate the responsiveness that allows law to pursue justice is lost. This is not to suggest that there should be no normative orientation to transitional justice. Rather what is central is the ability to recognise the potentially coercive effects of the determinate element of law. Relying too heavily, or without question, on law and the inviolability of law, can deny the responsiveness of law and reduce it to an ultimately arbitrary standard. Where law, or any other determinate concept, comes to be regarded as fixed and inviolate, the risk is that the centrality of this concept ceases to be subjected to scrutiny (Sokoloff, 2005). The ongoing process of questioning that Derrida advocates as necessary in order to achieve justice is lost, and with it the ability of law to deliver meaningful change. As Fitzpatrick states, “’In God We Trust’ can relieve us of trusting each other” (Fitzpatrick 2005). The unquestioning acceptance of norms and systems becomes not only possible but commonplace. In situations defined by political conflict, by competing narratives, placing too great an emphasis on the application of norms also absolves responsibility for openness to the other. Where ones position can be reinforced by reference to law there is no longer any need to engage with the other. As Derrida himself describes, “droit claims to exercise itself in the name of justice and ... justice is required to establish itself in the name of a law that must be enforce.”(Derrida 1992, p 22). Transitional justice scholars have tended to equate justice with law, or to view justice as something that can be achieved through the enforcement of human rights law. However, to the extent that justice can be present in law and (reformed) institutions, it is only as a possibility (Derrida 1992). It should not be treated as an identifiable end point such as a particular model of democracy or governance, or as the enforcement of legal rights. Justice should have no horizon of expectation, regulative or messianic (Derrida 1992, p 27). Justice represents a call to a more consequential change “not simply in the naïve sense of calculated, deliberate and strategically controlled intervention, but in the sense of maximum intensification of a transformation in progress, in the name of neither a simple symptom nor simple cause.” (Derrida 1992, p 9). 16 5. Conclusion : The (Im)possibility of Transitional Justice? Derrida himself suggested in Force of Law that it was “foreseeable and desirable that studies of deconstructive style should culminate in the problematic of law and justice” (Derrida 1992, p 7). It seems equally foreseeable and desirable that studies of transitional justice should culminate in deconstruction of the concepts of law and justice on which the field is founded, for deconstruction itself is a problematisation of the foundations of law, morality and politics. In the preceding sections it has been shown how questions of law, morality and politics are intimately linked in the context of transitional justice, to the extent that rigid distinction between the concepts themselves can no longer withstand scrutiny. In transitional justice the urge must be resisted to look for determinate frameworks of justice. Law, and human rights law in particular, should not be instrumentally subordinated to a determined outcome. Law must remain open to the possibility of justice. For justice exceeds rules and calculations. It is not simply a juridical or a political concept, but it opens up for the future the possibility of transformation, of re-casting or re-founding law and politics. The challenge to remain open to critical engagement is rooted in the idea of an infinite idea of justice that is irreducible to law. It is in this ongoing process of questioning that justice lies – in the openness to the other, the existence of whom is immanent to the idea of transition. In this way deconstruction is transitional justice. Acknowledgements I would like to thank Sara Ramshaw, Louise Mallinder and Ilan Rua Wall for comments on an earlier draft of this paper. All errors or contested interpretations remain my own. References: Akhavan, Payam. 1998. Justice in The Hague, Peace in the former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal. Human Rights Quarterly 20: 737 Arthur, Paige. 2009. How ‘Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice. Human Rights Quarterly 31: 321 Beardsworth, Richard. 1996. Derrida and the Political. London: Routledge. Bell, Christine. 2000. Peace Agreements and Human Rights. Oxford: Oxford University Press. Bell, Christine. 2006. ‘Negotiating Justice? Human Rights and Peace Agreements’. Geneva: International Council on Human Rights Policy. Bell, Christine. 2009. Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non Field’ International Journal of Transitional Justice 3:5 Bell, Christine, Colm Campbell and Finonuala Ní Aoláin. 2004. Justice Discourses in Transition Social and Legal Studies 13(3) 305 Campbell, Colm et al. 2003. The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland. Modern Law Review 66: 317 17 Campbell, Colm and Fionnuala Ní Aoláin. 2005. The Paradox of Transition in Conflicted Democracies. Human Rights Quarterly 27: 172 Chandler, David. 2000. Bosnia: Faking Democracy After Dayton. Pluto Press. Dancy, Geoff. 2010. Impact Assessment, Not Evaluation: Defining a Limited Role for Positivism in the Study of Transitional Justice. International Journal of Transitional Justice 4: 355 Davies, Margaret. 2001. Derrida and Law: Legitimate Fictions. In Jacques Derrida and the Humanities: A Critical Reader ed, Tom Cohen 213-237. Cambridge: Cambridge University Press. Derrida, Jacques. 1987. Before the Law. In Kafka and the Contemporary Critical Performance ed A Udoff. Bloomington and Indianapolis: Indiana University Press. Derrida, Jacques. 1992. Force of Law: The Mystical Foundation of Authority. In Deconstruction and the Possibility of Justice, ed Drucilla Cornell. New York: Routledge. Derrida, Jacques. 2001. On Cosmopolitanism and Forgiveness. Trans Mark Dooley and Michael Hughes. London: Routledge. Derrida, Jacques. 2002. Declarations of Independence. In Negotiations, Interventions and Interviews, 1971-2001 ed E Rottenbert. Stanford: Stanford University Press. Derrida, Jacques. 2003. Autoimmunity: Real and Symbolic Suicides. In Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida ed, Giovanna Borradori 85-136. Chicago and London: University of Chicago Press. De Ville, Jacques. 2008. Sovereignty Without Sovereignty: Derrida’s Declarations of Independence. Law and Critique 19: 87 Douzinas, Costas. 2005. Violence, Justice, Deconstruction. German Law Journal 6: 171 Dugard, John. 1997. Retrospective Justice: International Law and the South African Model. In Transitional Justice and the Rule of Law in New Democracies ed AJ McAdams. University of Notre Dame Press. Fitzpatrick, Peter. 2005. In God we trust’ can relieve us of trusting each other: Peter Fitzpatrick interviewed by Jill Stauffer. The Believer 3 (8): 63-72. IJTJ. 2007. Editorial Note. International Journal of Transitional Justice 1:1 Kingsbury, Benedict. 2002. Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law. European Journal of International Law 13(2): 401 La Caz, Margarite. 2007. At the Intersection: Kant, Derrida and the Relation Between Ethics and Politics. Political Theory 35: 781 McCormick, John. 2001. Derrida on Law: Or, Poststructuralism Gets Serious. Political Theory 29: 395 McEvoy, Kieran. 2007. Transitional Justice From Below: Towards a Thicker Understanding of Transitional Justice. Journal of Law and Society 34: 411 Mechlem, Kerstin. 2009. Treaty Bodies and the Interpretation of Human Rights. Vanderbilt Journal of Transnational Law 42: 905 Nagy, Rosemary. 2008. Transitional Justice as Global Project: Critical Reflections. Third World Quarterly 29: 275 18 Newman, Saul. 2001. Derrida’s Deconstruction of Authority. Philosophy and Social Criticism 27(3):1 Orentlicher, Diane. 1991. Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime. Yale Law Journal 100: 2539 Rolston, Bill. 2006. Dealing with the Past: Pro State Paramilitaries, Truth and Transition in Northern Ireland. Human Rights Quarterly 28: 652 Sarkin, Jeremy. 2001. The Tension Between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of Gacaca Courts in Dealing with the Genocide. Journal of African Law 45: 143 Simpson, Kirk. 2007. Voices Silenced, Voices Re-Discovered: Victims of Violence and the Reclamation of Language in Transitional Societies. International Journal of Law in Context 3: 89 Simpson, Kirk (2009) Unionist Voices and the Politics of Remembering the Past in Northern Ireland. Basingstoke: Palgrave MacMillan Sokoloff, William. 2005. Between Justice and Legality: Derrida on Decision. Political Research Quarterly 58: 341 Subotic, Jelena. 2012. The Transformation of International Transitional Justice Advocacy. International Journal of Transitional Justice 6: 106 Teitel, Ruti. 2000. Transitional Justice. Oxford: Oxford University Press. Teitel, Ruti. 2003. Transitional Justice Genealogy. Harvard Human Rights Journal 16: 69 Turner, Catherine. 2008. Delivering Lasting Peace, Democracy and Human Rights in Transition: The Role of International Law. International Journal of Transitional Justice 2: 126 Turner, Catherine. 2010. Political Representations of Law in Northern Ireland. Public Law 451 Turner, Catherine. 2011. Human Rights and the Empire of (International) Law. Law and Inequality 29: 311 United Nations. 2004. ‘Report of the Secretary General on Transitional Justice and the Rule of Law in Conflict and Post Conflict Societies’. UN Doc S/2004/616 United Nations. 2011. ‘Report of the Secretary General on Transitional Justice and Rule of Law in Conflict and Post Conflict Societies’. UN Doc S/2011/634 
work_in6luqd3gbhkzbsbtqsq5vxt4a	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221735658 Params is empty 221735658 exception Params is empty 2021/04/06-03:20:33 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221735658 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:33 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_inzbsvb2anesni7u6n44xgeffu	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221741154 Params is empty 221741154 exception Params is empty 2021/04/06-03:20:40 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221741154 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:40 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_iovil2ito5f6hkl5wqe6dvjsj4	----	Globalizing environmental justice? Geoforum 54 (2014) 151–157 CORE Metadata, citation and similar papers at core.ac.uk Provided by Elsevier - Publisher Connector Contents lists available at ScienceDirect Geoforum j o u r n a l h o m e p a g e : w w w . e l s e v i e r . c o m / l o c a t e / g e o f o r u m Editorial Globalizing environmental justice? http://dx.doi.org/10.1016/j.geoforum.2014.04.009 0016-7185/� 2014 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/). There is now a long and rich history of practice and theory com- monly associated with the concept of environmental justice. Much of it has focused on the global North, and the US in particular, reflecting the origins of movements that carry the label and that have invoked the discourse of environmental justice (Cole and Foster, 2001; Agyeman, 2005; Bullard, 2005). These origins imply a key preoccupation with racial inequality due to the apparently unique history of the US in terms of civil rights struggles and an emphasis on a particular set of environmental problems, such as the location of hazardous waste sites. Nonetheless, environmental justice has increasingly served as a crucial rallying ground for social activism and political resistance beyond the US in parts of Latin America, Asia and South Africa, for example (Agyeman et al., 2003; Agyeman and Ogneva-Himmelberger, 2009; Holifield et al., 2009; Guha and Martinez-Alier, 1997; Martinez-Alier, 2002; McDonald, 2002; Carruthers, 2008). Research on place-specific struggles over natural resources and environmental mobilizations suggest that ‘the core issues at the heart of environmental justice struggles are universal’ (Schroeder et al., 2008; cf. Guha and Martinez-Alier, 1999; Walker and Bulkeley, 2006). Justice provides local communities and environ- mental activists with an important vocabulary in their resistance against dispossession from customary land, opposition to polluting industries and struggles for a fair distribution of natural resource revenues. Even where resistance is not couched in justice terms, ‘everyday’ struggles and mobilizations over environmental degra- dation and natural resource exploitation are often about the distri- bution of environmental bads and goods, participation in decision making and recognition of particular group identities and histories, which constitute the classic concerns of environmental justice (Schlosberg, 2004, 2007). Environmental justice thus may provide a powerful lens through which to make sense of struggles over environments and natural resources worldwide, providing a link between Northern literature on environmental justice and research on southern environmentalisms (Guha and Martinez-Alier, 1997; Guha, 1999), and between the ‘environmentalism of the poor’ (Martinez-Alier, 2002), liberation ecology (Peet and Watts, 2004) and global political ecology (Peet et al., 2011a). This special issue starts from the premise that environmental justice concerns may not only be universal(izing), but also increas- ingly operate at a global scale: creating international political com- munities and finding expression within ‘global’ institutions (Newell, 2006; Walker, 2009). Whilst not overlooking the tremen- dous diversity of meanings and struggles around environmental justice around the world, this claim refers to the growing adoption of discourses and strategies that are associated with, and in many ways derive from, environmental justice movements. Movements around water, food or climate increasingly adopt the language of justice for example, raising explicitly concerns with historical eco- logical debts between and within nations, uneven ecological exchange and the social injustices that arise from the poorest being most vulnerable to the effects of problems to which they have con- tributed very little. Claims of environmental (in)justices are increasingly also deployed within transnational arenas dealing with the issues of trans-border trade and investment, for example, but with consequences for local environmental struggles and polit- ical ecologies. Practices of production, trade and regulation at one site increasingly connect with seemingly distant sites elsewhere through extended supply chains, technology diffusion and the internationalization of production. In so doing they transform the dynamics of inequality: reshaping or entrenching existing forms of inequality, and modifying the spaces available for the pursuit of justice (Newell, 2012). Though the significance of such connec- tions is hardly novel and the history of colonialism could certainly be told in those terms, the point of departure here is the confluence of globalizing discourses of justice and corresponding institutional arrangements to which these claims are directed and which seek to address them, and a globalizing phase of contemporary capitalism which has reconfigured the geographies of environmental (in)jus- tice (Fraser, 2009; Walker and Bulkeley, 2006). In this light, there is a strong case for examining how questions of place-specific environmental justice relate to larger-scale polit- ical and economic processes through globalization and the expand- ing reach of global governance arrangements. It is also insightful to ask how the transnational deployment of claims of environmental (in)justices generates consequences for place-based environmental struggles as well as creating opportunities for occupying and influ- encing national and global political spaces in novel ways. The con- nections work in both directions: local issues and struggles are affected by larger-scale processes, but simultaneously influence the latter since the reputation and capital of global institutions is then invested in the success of interventions in particular locales over which they exercise only partial control and whereupon they are vulnerable to resistance and disruption (Newell and Bumpus, 2012). ‘Local’ and ‘global’, in this sense, are not given attributes of environmental claims, practices and issues, but rather are con- stituted through the scalar practices of particular actors and result- ing processes (Neumann, 2009). It is only through these practices and processes that ‘place-specific policies and practices can have consequences that cross national boundaries, affect multiple scales, and extend across global networks’ (Holifield et al., 2009: 595). This special issue proposes global environmental justice as a lens to make sense of place-specific environmental struggles in their relation to the sorts of broader political economic processes which are often identified as intensifying or accelerating the https://core.ac.uk/display/82474432?utm_source=pdf&utm_medium=banner&utm_campaign=pdf-decoration-v1 http://crossmark.crossref.org/dialog/?doi=10.1016/j.geoforum.2014.04.009&domain=pdf http://dx.doi.org/10.1016/j.geoforum.2014.04.009 http://creativecommons.org/licenses/by-nc-nd/3.0/ http://dx.doi.org/10.1016/j.geoforum.2014.04.009 http://www.sciencedirect.com/science/journal/00167185 http://www.elsevier.com/locate/geoforum 152 Editorial / Geoforum 54 (2014) 151–157 production of environmental injustices. It does not pretend to pro- vide a comprehensive account of worldwide mobilizations for environmental justice.1 Instead, it seeks to show how practices of environmental (in)justice have changed in ways which may require innovative approaches to research and engagement. Though global- izing tendencies are uneven, environmental injustices are often pro- duced and justice claims invoked in relation to the re-scaling of capital accumulation or the extension of political authority over new swathes of natural resources. They are often ultimately grounded in local and national realities and socio-ecological strug- gles, however. Each contribution to the issue will consequently explore how globalizing practices and processes impact upon spe- cific environmental struggles to develop ways of understanding and explaining the ways in which those struggles are embedded with, and in turn shape, broader global processes. The point of departure for this themed issue, therefore, is the need to think innovatively and in an interdisciplinary way about how to make sense of environmental justice issues as they relate to and are experienced by people all around the world. The concept of ‘global environmental justice’ serves as a lens to critically ana- lyze ongoing economic, political and environmental transforma- tions from multiple disciplinary viewpoints. It combines a focus on the globalizing production of environmental justices and injus- tices and the interest of international political economists in the workings of global networks and institutions with political ecolo- gists’ attention to the specificity of place-based socio-environmen- tal struggles. It also engages debates in political philosophy about justice, particularly recent attention to non-western cultures and their implications for thought and practice on development (e.g. Sen, 2009) and the ways in which mobilizations by sub-altern groups, such as indigenous peoples for example, challenge liberal notions of collective action, citizenship and the pursuit of justice (Yashar, 2005). This introduction develops a substantive framing for the contri- butions to the themed issue, including the research papers and critical reviews. It seeks to provide a brief justification of the ana- lytical traction to be gained from applying a global environmental justice lens, one that brings together key concerns in environmen- tal justice scholarship, political ecology, and international political economy. It develops the justification in three steps, asking first about the utility of ‘justice’, then about the specifically ‘environ- mental’ component of this, and finally asking what an emphasis on the ‘global’ adds to our understanding. Taken together, we argue, the three terms provide a powerful heuristic framework for understanding contemporary environmental politics and the political economy of natural resources. Why ‘justice’? Whether it is ‘climate justice’, ‘food justice’ or ‘water justice’ the language of justice is omnipresent in environmental politics (Bond, 2012; Gottlieb and Joshi, 2010; Boelens et al., 2011). Many contem- porary mobilizations over access to resources (such as seeds, for- ests or water) or objections to uneven exposure to environmental harms (e.g. climate change) employ justice as a discursive frame. The reference provides a useful vehicle for highlighting the justice component of environmental challenges as well as lending legiti- macy to particular struggles. Similarly, transnational conventions and norms increasingly refer to justice, such as those dealing with 1 For interesting and innovative attempts to map environmental justice in this way see EJOLT (Environmental Justice Organisations, Liabilities and Trade, http:// www.ejolt.org/) as well as the connected archive of mining conflicts compiled by OCMAL (Observatorio de Conflictos Mineros de América Latina, http://www.conflic- tosmineros.net/) and Map of Environmental Conflicts in Brazil (http://www.conflito- ambiental.icict.fiocruz.br/). Reducing Emissions from Deforestation and Forest Degradation (REDD+; Okereke and Dooley, 2009; Sikor, 2013a). Most recently, the Parties to the Convention on Biological Diversity (CBD) approved a new protocol on Access and Benefit Sharing in 2010 as a means to address the lack of access to benefits from biodiver- sity to date of many poorer stewards of natural resources (Martin et al., 2013). Opposition to injustices and demands for justice lie at the heart of many place-based struggles around the world. Justice and ideas about justice are a critical element in material and discursive struggles about access to and control over resources (e.g., Berry, 1993; Fortmann, 1995; Peluso, 1996). Poor people’s claims are not only about the distribution of environmental goods and bads, Martinez-Alier (2014) argues, but also about whose visions of the environment are recognized, who participates in environmental decision-making and democracy, and what kinds of values come to matter – all of which are central matters of justice. As important as distributive issues are, however, the claims made by actors in place-based struggles are also often about issues of participation and recognition, reflecting Fraser’s call to think about justice in ways that extend beyond distribution to also include recognition and representation (Fraser, 1997). The plurality of conceptions and practices of justice challenges research to critically interrogate assertions of (in)justices in envi- ronmental struggles. The specific claims made in concrete strug- gles are highly diverse, defying any attempt of defining them in uniform terms (cf. Schlosberg, 2004; Walker and Bulkeley, 2006). As social actors bring different notions of justice to bear upon issues of access to natural resources and exposure to environmen- tal risk, the question arises of which types of actors are able to assert what kinds of claims given the historical circumstances they inherit and the contemporary political economy whose terrain they have to navigate. There is a need to critically examine asser- tions of (in)justice and trace how some assertions find support in public discourse as legitimate demands whereas others do not, or are rejected outright as illegitimate claims (Sen, 2009). The plural- ity of justice, in other words, directs analytical attention to envi- ronmental politics and power relations, as demonstrated by Movik (2014) and Upton (2014). Movik examines competing dis- cursive constructions of water rights in debates surrounding South Africa’s Water Allocation reform, while Upton looks at issues of representation and accountability within the global pastoralists’ movement. The plurality of justice claims also opens up intriguing connections with normative reasoning in political philosophy as a way to distinguish legitimate notions of justice from mere asser- tions of self-interest – or to challenge the increasingly common- place distinction between matters of distribution, participation and recognition, as Martin et al. (2014) point out. Justice and the ability to provide it remains a constitutive ele- ment of the legitimacy of the modern nation state. For example, activists in the US have called on the federal government in sup- port of struggles against unequal exposure to pollution (Williams, 1999). National governments from post-socialist Europe to postcolonial Latin America have recently transferred forest ten- ure to various excluded groups, justifying the transfer as a means of undoing historical injustices (Sikor et al., 2009; Larson et al., 2010). The South African state meanwhile has emerged as a key arena in struggles about water, as the vesting of allocative author- ity with the state has turned the state into a key site for competing claims of (in)justice (Movik, 2014). Likewise, Chhotray (2014) shows how the state’s denial of legal entitlements to assistance critically shapes the ‘relief relationship’ between state and citizens in India. The relief relationship is based on moral concerns over the fate of people affected by super-cyclones and other disasters but not responsibilities enshrined in law. Mehta et al. (2014) go a step further by concluding that the Bolivian and Indian states have http://www.ejolt.org/ http://www.ejolt.org/ http://www.conflictosmineros.net/ http://www.conflictosmineros.net/ http://www.conflitoambiental.icict.fiocruz.br/ http://www.conflitoambiental.icict.fiocruz.br/ Editorial / Geoforum 54 (2014) 151–157 153 abandoned their welfare missions with regard to access to safe and potable water in peri-urban spaces. These cases highlight once again the potential of states to operate both as ‘rights protector’ and ‘rights violator’, posing real dilemmas for activists framing jus- tice claims in the sorts of rights language which implies or requires state enforcement or adjudication (Newell and Wheeler, 2006). This is significant because references to justice often employ the notion of rights and entitlements, from civil rights-based environ- mental mobilizations in the US to the emergent rights agenda in international forestry (Sikor and Stahl, 2011). So-called ‘rights- based approaches’ have gained a prominent place in international development, water management, and most recently biodiversity conservation (cf. Scanlon et al., 2004; Campese et al., 2009; Hickey and Mitlin, 2009). ‘Rights talk’ has become attractive to an increasingly wide range of social and political actors, as claim- ing a right ‘is to register the strongest kind of claim for which our moral language provides’ (Jones, 1994: 49–50). Claims are strengthened further if they can be couched in the language of human right, lending them an essential status that must be respected universally. Nevertheless, rights agendas are only one kind of approach to justice and may not work as envisioned by their promoters, particularly in their individualistic and universal- izing expressions (Yashar, 2005). In this issue, Mehta et al. (2014) and Blaikie and Muldavin (2014) provide critical perspectives on global rights agendas, highlighting the overpowering influence of local and national political economies in diluting the intended effects of rights claims. Mehta et al. (2014) find that the political economic dynamics that produce people’s exclusion from safe drinking water in peri-urban spaces of Bolivia and India also con- strain the leverage of rights-based approaches for overcoming the exclusion. Blaikie and Muldavin (2014) suggest that procedural justice, particularly around ideas of participation, may have gained traction with international donors, but the actual implementation of ideas and procedures is largely shaped by national and local political economies which subvert this intent. At the same time, the ascendance of justice as a discursive frame may also reflect multiplying kinds of environmental injus- tice as a result of a series of interrelated trends. The international- ization of production and technology, accelerated through the removal of trade barriers, brings powerful actors such as multina- tional companies and environmental NGOs into increasing contact with remote and often socially excluded groups whose resources were previously not accessible or exploitable, or were protected by the state. Resource frontiers have been expanded driven by a mixture of scarcity and opportunity as captured in the practice of ‘land grabs’ (White et al., 2012) and ‘green grabs’ (Fairhead et al., 2012). The pursuit of new sites of accumulation, driven by eco- nomic rationales or ecological imperatives (securing future sup- plies of land or water), generate very unequal distributions of access to, and control over, natural resources (Sachs and Santarius, 2005; Martinez-Alier et al., 2010), and uneven contribu- tions and exposures to global environmental change (O’Rourke and Connolly, 2003; Srinivasan et al., 2008). They also create and exac- erbate place-based conflicts where global actors become embroiled in local and national questions of cultural recognition and political self-determination (Newell, 2005, 2007). Conflicts are then as much about whose notions of justice and framings of environmen- tal problems prevail as about competition over access to and con- trol over material resources (Jasanoff and Martello, 2004; Fraser, 2009; Sikor et al., 2013a). Analytically then it is important to examine environmental struggles in justice terms because environmental movements, state actors, business and international organizations employ the language of justice, and because their claims may increasingly reflect a reality in which environmental injustices have multiplied and their geographies been reconfigured. The focus on justice chal- lenges researchers and activists alike to critically interrogate the invocations of justice (or lack thereof), relate justice claims to the specific political economic dynamics generating (in)justices, and ask about what kinds of justice are being asserted, by whom and for whom, particularly if justice claims assert a universal quality. Why ‘environmental’? What then is the specifically environmental component of jus- tice? Often struggles that are labeled environmental are as much about the pursuit of specific social justice claims (Guha and Martinez-Alier, 1999; Rangan, 2004). So, for example, the struggle of the Ogoni people in Niger delta is as much about access to the revenues generated from the oil in their area as it is opposition to the environmental damage caused by oil spills (Okanta and Douglas, 2001). Struggles against the chemical industry in Louisi- ana are as much about human health concerns as the release of chemicals into the environment (Allen, 2003). In practice, most struggles are driven by, and articulate their claims in relation to, a number of grievances since people have different motivations for joining movements, and because the concrete problems con- fronted by people are typically multifaceted. Another element of the question is to what extent claims of (in)justice regarding different natural resources and environmental qualities share similar grounds, or can really be said to be about the ‘environment’ per se as opposed to a particular socio-ecological regime. Even though justice framings have become increasingly important in advocacy on climate change, water, food and genetic resources, for example, the particular injustices that motivate mobilizations retain local peculiarities in their social and environ- mental constitution. The resulting mobilizations, and the processes giving rise to the injustices they address do not fit into a single and neat category of ‘environment’, therefore. There may be significant diversity in the demands asserted by various actors with regards to different kinds of natural resources or environmental qualities and services (Martin, 2013). Just as the historical settings and specific contexts in which environmental struggles take place are diverse, so too are the particular manifestations of the political economic processes producing injustices and shaping the possibilities for jus- tice. Global capitalism is produced by and mediated through par- ticular varieties of capitalism and refracted through alignments of state power and social forces that take on different forms (Panitch and Gindin, 2012). At the same time, framing issues in terms of environmental (in)justice allows mobilizations to tran- scend national borders and attract the attention of wider sets of activists and publics when a local issue gets re-framed as a matter of common interest or global public good. Mulvaney (2014) shows how activists successfully employed an environmental justice framing to link occupational hazards in the Global South with green policy in the U.S. Kumar (2014) also explores how activists assembled connections between local opposition to a mine in India’s Niyamgiri mountains and national and transnational mobi- lizations around a shared commitment to protect the mountains. One of the shared elements of justice claims that most often arises in environmental debates is the significance of inter-gener- ational justice. This framing was explicit in the Brundtland report Our Common Future (1987) which conceived of sustainable devel- opment as being about the ability of current generations to meet their needs without compromising the ability of future generations to meet their own needs. In climate justice struggles justice to future generations is a central mobilizing claim: holding the cur- rent generation of decision-makers and polluters to account now for failing to act and imposing on future generations risks and dan- gers for which they are not responsible (Page, 2006). Struggles around nuclear or toxic waste also highlight the legacies of pollu- tion caused now for future generations as a basis for articulating 154 Editorial / Geoforum 54 (2014) 151–157 justice demands, as do warnings over the depletion of water resources and minerals or herders’ global advocacy around envi- ronmental stewardship (Upton, 2014). Thus, alongside claims of ‘justice to nature’, concerns over the future effects of contemporary actions may set environmental justice apart from other justice claims. Yet it is precisely this inter-generational dimension that has caused some political philosophers to question whether it is mean- ingful to apply the concept of justice to issues of environmental sustainability at all. Justice, the argument goes, is only about dis- tributive issues within the current generation, whereas environ- mental sustainability is about concerns between generations. Preconditions for the latter can be determined scientifically and are therefore not subject to justice concerns (Vincent, 1998; Dobson, 1999). Forsyth (2014) counters this argument in his con- tribution to the themed issue, stressing the need to examine how environmental problems are identified, and how particular fra- mings imply specific understandings of environmental justice. Defining problems such as climate change in particular ways shapes the pursuit of justice by defining unjust risks and proposing just solutions. Forsyth’s argument builds on a vast body of litera- ture on contested understandings of the ‘environment’ exploring questions of whose knowledge counts and whose and what envi- ronment is at stake (cf. Leach et al., 2010). It also speaks to critical findings in research on ‘natural’ disasters that stress their social construction, mediation by political economic forces, as well as people’s differentiated experiences of them (Peet et al., 2011b). As environmental change is understood and experienced in socially differentiated ways, framings and governance interventions embody and reinforce particular understandings of (environmen- tal) justice and the means by which it will be secured, as illustrated by the increasingly popular and contested concept of ecosystem services (Sikor, 2013b). Yet even acknowledging the social construction and differen- tiated experience of environmental problems, the question remains how environmental justice may be different from other fields of justice due to the presence of biophysical dynamics over inter-generational time frames. Non-human agency may distin- guish concerns with environmental justice from more general justice issues. For example, there are elements of risk and uncer- tainty to disasters which cannot be reduced to social construc- tions and political economic mediation. Biophysical dynamics may complicate easy attributions of responsibility and culpabil- ity, lending moral weight to certain claims to assistance on the basis of victimhood (Chhotray, 2014). Non-human nature brings in numerous actants within and beyond human society and across generations, such as in sentient ecologies (Anderson, 2002). Likewise the materiality of resources shapes questions of access and benefit depending on how ‘cooperative’ they are or amenable to exploitation as commodities (Bakker, 2003; Newell and Bumpus, 2012). Thus, there is the need to examine the dynamics associated with specific environmental injustices and critically investigate the nature of environmental justice claims. The focus on environ- mental justice challenges researchers and activists to ask if and how specific struggles share similar grounds, unearth the discur- sive constructions of environment employed in these, explore how they reflect particular features of non-human nature, and examine how they privilege particular claims over others. Why ‘global’? Growing self-awareness and understanding of the global inter- connectedness of human and ecological relations provides new grounds for practices and claims of injustice where the actions of one group of social actors have repercussions on the well-being and security of others. As we begin to appreciate the value of eco- logical resources embedded in everyday forms of economic exchange such as trade, new justice dimensions become apparent whether they relate to material throughout, embedded carbon, or ‘virtual’ water (Martinez-Alier et al., 2010; Zeitoun, 2013). Percep- tions of the ‘planetary character of the ecological crisis’ (Peet et al., 2011b: 10) have justified particular applications of justice rooted in the principle of a single global community or current generation. Such applications become manifested in ideas about the ‘common heritage of mankind’ [sic] with regards to the oceans, Antarctica or rainforests or in notions of ‘common but differentiated responsibil- ity’ in the climate regime (Okereke, 2010). This attention to increasing human and ecological interconnec- tedness does not have to imply any naturalization or fetishization of the global, as highlighted by various contributions to this issue. Nor should it obscure the power relations at play. There is clearly a politics at work in framing responsibilities and rights as global or as falling within the purview of global institutions that seek to acquire for themselves a role in global planetary management (Sachs, 1993). Equally, environmental injustices and claims of jus- tice, Robbins (2014) suggests, arise from locally specific practices due to the unevenness of capitalist development, and only become connected – or global – due to the assembling practices of the actors involved (cf. Holifield et al., 2009). This applies to the pro- duction of injustices as well as the politics of environmental jus- tice. Claims of environmental (in)justice not only operate at a global scale but help to produce a global scale. To some extent awareness of increasing interconnectedness has developed through the global organization of science and knowl- edge about environmental change, leading to the creation of global narratives about processes of environmental change (Buttel and Taylor, 1992; Forsyth, 2003; Leach et al., 2010; Hulme, 2009). Cli- mate change and other discourses affirm the ‘centrality of expert knowledges’ (Peet et al., 2011b: 10), as reflected in the global orga- nization of expertise through bodies such as the Intergovernmental Panel on Climate Change (IPCC) or the creation of global ‘rosters of experts’: ‘epistemic communities’ (Haas, 1990) conferred a privi- leged and powerful position in global environmental decision- making. Despite the attention given to equity and other justice issues (for example in the latest IPCC Fifth Assessment Report), the central role attributed to particular scientific disciplines raises concerns about the implicit privileging of some ways of knowing over others in knowledge production about the anthropocene (Sikor et al., 2013a). The ascendance of discursive power concen- trated around a few organizations has profound implications for the generation of knowledge about environmental issues, raising issues of ‘cognitive justice’ in the sense of whose knowledge counts: who participates in agenda-setting and to whom are the creators and disseminators of knowledge accountable for the effects of their knowledge (Visvanathan, 2005; Forsyth and Sikor, 2013). Partly in response to the development of epistemic communi- ties and movements mobilizing around global environmental nar- ratives, there has been an enormous proliferation in global governance institutions concerned with the environment. From the Stockholm Conference on the Human Environment in 1972 onwards, global-level institutions have come to exercise oversight over resources key to the livelihoods of the world’s poor whether it be water, seeds, ‘biodiversity’ or, most recently, forests. They have come to establish a ‘particular sort of environmental rule or gov- ernmentality’ (Peet et al., 2011b: 11) through forms of environ- mental neo-liberalism (Goldman, 2005; Heynen et al., 2007). This has taken the form of new forms of private governance that have emerged such as certification schemes for agricultural produce and community forest management which displaces the central role of the state (Li, 2007; Sikor et al., 2013b). Moves to commodify Editorial / Geoforum 54 (2014) 151–157 155 and financialize nature or ‘selling nature to save it’ (McAfee, 1999) in which global institutions broker deals, assure quality and issue pollution or conservation rights (as in carbon trading and REDD respectively) are also indicative of environmental neo-liberalism. While many governance arrangements include provisions for addressing some aspects of justice through appeal or redress mechanisms, there are concerns about the conceptualization and operationalization of justice in such global rule making (Martin et al., 2014; Zeitoun, 2013). These concerns also apply to global and regional trade and investment treaties (such as the EU and NAFTA), even where they have created new arenas for claiming rights and articulating environmental justice claims (Newell, 2007). Another manifestation of globalization, however, is transna- tional forms of mobilization which go beyond site or sector specific mobilizing. Some transnational mobilizations link actors and claims across movements (labor, gender, human rights and envi- ronmental movements) and sites of decision-making (Icaza et al., 2010; Kumar, 2014). The movements often invoke the language of justice together with emphases on rights (rights to water, to food) or the interests of particular groups (forest dwellers, indige- nous groups, etc.) (e.g. Borras et al., 2008; Newell, 2008; Sikor and Stahl, 2011). In this way, they may establish environmental justice as an emergent ‘global brand’ available to environmental activists worldwide, as Agyeman (2014) argues in his contribution to the issue. Nonetheless, the question remains of whether environmen- tal justice offers a framing that is applicable to various sites, given the conflicts between different conceptualizations, as indicated by Mulvaney (2014) or when, as Mehta et al. (2014) suggest, the over- powering influence of local and national political economies may prevent environmental justice from becoming part of a global dis- course that effectively challenges injustices. Thus the ‘global’ in environmental justice emerges through the very practices and pro- cesses that create and contest environmental (in)justices. Globalizing environmental justice It is our impression that the practice of environmental (in)jus- tice has changed in ways which require innovation in the way we seek to account for it and engage with it. There is an urgent need to interrogate the universalizing and globalizing tendencies of environmental justice struggles and examine the concrete scale-making practices and political economic processes which generate environmental (in)justices and underlie environmental struggles. The changing practice of environmental justice and injustice requires a conscious effort to develop research across disciplinary boundaries. Firstly, these globalizing practices and processes require environmental justice scholars and political ecologists to engage with specialists in global environmental politics and inter- national political economy. Those who devote most attention to site or resource specific environmental justice struggles need to develop ways of understanding and explaining the ways in which those struggles are embedded with, and in turn shape broader glo- bal processes. At the same time, analyses of global environmental politics and governance will benefit from greater attention to the local specificity and historical contingency of struggles over resources as they feed into and are influenced by emerging trans- national conventions, treaties, organizations, and networks (Newell and Bumpus, 2012). Secondly, political ecologists and environmental justice schol- ars may also derive mutual benefits from further substantive exchange. Political ecology scholarship is often associated with southern contexts, despite key contributions on the global North (e.g. McCarthy, 2002; Robbins, 2007). Conversely, much environ- mental justice scholarship continues to be shaped by the experi- ences of the global North, despite interest in global movements for climate justice, food justice (e.g., Agyeman et al., 2003; Schlosberg, 2004) and a growing body of scholarship concerned with mobilizations for environmental justice in the global South (e.g., Carruthers, 2008; McDonald, 2002; Walker and Bulkeley, 2006; Walker, 2011). Encounters between political ecologists and environmental justice scholars are still rare, even though the for- mer have begun to explore the use of environmental justice con- ceptions by activists and its utility as an analytical lens (e.g., Schroeder et al., 2008). This themed issue seeks to show how both approaches can be brought into meaningful dialogue with one other and with scholars studying transnational environmental pol- itics and governance. Global environmental justice may also offer new opportunities for collaboration and exchange between engaged scholars and crit- ical activists. It serves as an invitation to engaged scholars for new forms of analysis and to critical activists for new types of action. Attention to global environmental justice in theory and practice thus may offer a platform for engaged scholars and critical activists to learn from one another and support each other’s causes. Engaged research can make important contributions to the practice of global environmental justice through critical analysis. Yet the plurality of justice claims and the inequities of globalized knowl- edge production simultaneously challenge scholars to reflect on their own positionality in relation to the movements they study and whose goals they seek to advance. Acknowledgements We have incurred numerous intellectual debts in pulling this special issue together and developing a program of work on the theme of global environmental justice. Above all, we thank the members of the Global Environmental Justice group at the School of International Development of the University of East Anglia. The group has been very generous in sharing their thoughts, partic- ularly the question of whether and how global environmental jus- tice can become a productive lens to guide research and engagement with practice. We also thank the contributors to this volume and the other participants at our workshop in July 2010. We have learned a lot from all of you (and recognize that the learn- ing isn’t over yet!). Finally, we thank Scott Prudham for the edito- rial support on the themed issue – and setting a fine example of engaged scholarship. References Agyeman, J., 2005. Sustainable Communities and the Challenge of Environmental Justice. New York University Press, New York. Agyeman, J., 2014. Global environmental justice or Le droit au monde? Geoforum 54, 236–238. Agyeman, J., Ogneva-Himmelberger, Y. (Eds.), 2009. Environmental Justice and Sustainability in the Former Soviet Union (Urban and Industrial Environments). MIT Press, Cambridge, MA. Agyeman, J., Bullard, R.D., Evans, B. (Eds.), 2003. Just Sustainabilities: Development in an Unequal World. Earthscan, London. Allen, B., 2003. Uneasy Alchemy: Citizens and Experts in Louisiana’s Chemical Corridor Disputes. MIT Press, Cambridge, MA. Anderson, D.G., 2002. Identity and Ecology in Arctic Siberia: The Number One Reindeer Brigade. Oxford University Press, Oxford. Bakker, K., 2003. An Uncooperative Commodity: Privatizing Water in England and Wales. OUP, Oxford. Berry, S., 1993. No Condition is Permanent: The Social Dynamics of Agrarian Change in Sub-Saharan Africa. University of Wisconsin Press, Madison, WI. Blaikie, P., Muldavin, J., 2014. Environmental justice? The story of two projects. Geoforum 54, 226–229. Boelens, R., Cremers, L., Zwarteveen, M. (Eds.), 2011. Justicia Hídrica. Acumulación, Conflicto y Acción Social. Peruvian Institute for Studies, Editorial Fund PUCP, Lima. Bond, P., 2012. Politics of Climate Justice: Paralysis Above, Movement Below. University of KwaZulu-Natal Press, Scottsville. Borras, S.M., Edelman, M., Kay, C. (Eds.), 2008. Transnational agrarian movements: origins and politics, campaigns and impact. Spec. Iss. J. Agrarian Change 8(2–3). http://refhub.elsevier.com/S0016-7185(14)00088-8/h0005 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0005 http://refhub.elsevier.com/S0016-7185(14)00088-8/h9000 http://refhub.elsevier.com/S0016-7185(14)00088-8/h9000 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0020 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0020 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0020 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0015 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0015 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0025 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0025 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0030 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0030 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0035 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0035 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0040 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0040 http://refhub.elsevier.com/S0016-7185(14)00088-8/h9005 http://refhub.elsevier.com/S0016-7185(14)00088-8/h9005 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0050 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0050 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0050 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0055 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0055 156 Editorial / Geoforum 54 (2014) 151–157 Bullard, R.D., 2005. The Quest for Environmental Justice: Human Rights and the Politics of Pollution. University of California Press, Berkeley, CA. Buttel, F.H., Taylor, P.J., 1992. Environmental sociology and global environmental change: a critical assessment. Soc. Nat. Resour. 5, 211–230. Campese, J., Sunderland, T., Greiber, T., Oviedo, G. (Eds.), 2009. Rights-based Approaches: Exploring Issues and Opportunities for Conservation. CIFOR and IUCN, Bogor. Carruthers, D. (Ed.), 2008. Environmental Justice in Latin America. MIT Press, Cambridge, MA. Chhotray, V., 2014. Disaster relief and the Indian state: lessons for just citizenship. Geoforum 54, 217–225. Cole, L., Foster, S., 2001. From the Ground up: Environmental Racism and the Rise of the Environmental Justice Movement. New York University Press, New York. Dobson, A., 1999. Justice and the Environment: Conceptions of Environmental Sustainability and Theories of Distributive Justice. Oxford University Press, Oxford. Fairhead, J., Leach, M., Scoones, I., 2012. Green grabbing: a new appropriation of nature? Spec. Iss. J. Peasant Stud. 39 (2). Forsyth, T., 2003. Critical Political Ecology: The Politics of Environmental Science. Routledge, London. Forsyth, T., 2014. Climate justice is not just ice. Geoforum 54, 230–232. Forsyth, T., Sikor, T., 2013. Forests, development, and the globalization of justice. Geogr. J. 179 (2), 114–121. Fortmann, L., 1995. Talking claims: discursive strategies in contesting property. World Dev. 23 (6), 1053–1063. Fraser, N., 1997. Justice Interruptus: Critical Reflections on the Post-Socialist Condition. Routledge, London. Fraser, N., 2009. Scales of Justice: Reimagining Political Space in a Globalizing World. Columbia University Press, New York. Goldman, M., 2005. Imperial Nature: The World Bank and Struggles for Social Justice in the Age of Globalization. Yale University Press, New Haven, CO. Gottlieb, R., Joshi, A., 2010. Food Justice. MIT Press, Cambridge, MA. Guha, R., 1999. Environmentalism: A Global History. Longman, London. Guha, R., Martinez-Alier, J., 1997. Varieties of Environmentalism: Essays North & South. Earthscan, London. Guha, R., Martinez-Alier, J., 1999. Political ecology, the environmentalism of the poor and the global movement for environmental justice. Kurswechsel 3, 27–40. Haas, P., 1990. Obtaining international environmental protection through epistemic consensus. Millen.: J. Int. Stud. 19 (3), 347–363. Heynen, N., McCarthy, J., Prudham, S., Robbins, P. (Eds.), 2007. Neoliberal Environments: False Promises and Unnatural Consequences. Routledge, London. Hickey, S., Mitlin, D. (Eds.), 2009. Rights-Based Approaches to Development: Exploring the Potential and Pitfalls. Kumarian Press, Sterling, VA. Holifield, R., Porter, M., Walker, G. (Eds.), 2009. Spaces of environmental justice: frameworks for critical engagement. Spec. Iss. Antipode 41(4). Hulme, M., 2009. Why We Disagree About Climate Change: Understanding Controversy, Inaction and Opportunity. Cambridge University Press, Cambridge. Icaza, R., Newell, P., Saguier, M., 2010. Citizenship and trade governance in the Americas. In: Gaventa, J., Tandon, R. (Eds.), Globalizing Citizens: New Dynamics of Inclusion and Exclusion. Zed Books, London, pp. 163–183. Jasanoff, S., Martello, M.L. (Eds.), 2004. Earthly Politics: Local and Global in Environmental Governance. MIT Press, Cambridge, MA. Jones, P., 1994. Rights Issues in Political Theory Series. MacMillan, Basingstoke. Kumar, K., 2014. The sacred mountain: confronting global capital at Niyamgiri. Geoforum 54, 196–206. Larson, A.M., Barry, D., Dahal, G.R., Colfer, C.J.P. (Eds.), 2010. Forests for People: Community Rights and Forest Tenure Reform. Earthscan, London. Leach, M., Scoones, I., Stirling, A., 2010. Dynamic Sustainabilities: Technology, Environment, Social Justice. Earthscan, London. Li, T.M., 2007. Practices of assemblage and community forest management. Econ. Soc. 36, 263–293. Martin, A. (Ed.), 2013. Global environmental in/justice, in practice: introduction. Geogr. J. 179(2), 98–104. Martin, A., McGuire, S., Sullivan, S., 2013. Global environmental justice and biodiversity conservation. Geogr. J. 179 (2), 122–131. Martin, A., Gross-Camp, N., Kebede, B., McGuire, S., Munyarukaza, J., 2014. Whose environmental justice? Exploring local and global perspectives in a payments for ecosystem services scheme in Rwanda. Geoforum 54, 167–177. Martinez-Alier, J., 2002. Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation. Edward Elgar, Cheltenham. Martinez-Alier, J., 2014. The environmentalism of the poor. Geoforum 54, 239–241. Martinez-Alier, J., Kallis, G., Veuthey, S., Walter, M., Temper, L., 2010. Social metabolism, ecological distribution conflicts, and valuation languages. Ecol. Econ. 70 (2), 153–158. McAfee, K., 1999. Selling nature to save it? Biodiversity and green developmentalism. Environ. Plan.: Soc. Space 17, 133–154. McCarthy, J., 2002. First world political ecology: lessons from the wise use movement. Environ. Plan. 34, 1281–1302. McDonald, D. (Ed.), 2002. Environmental Justice in South Africa. Ohio University Press; University of Cape Town Press, Athens, OH; Cape Town. Mehta, L., Allouche, J., Nicol, A., Walnycki, A., 2014. Global environmental justice and the right to water: the case of peri-urban Cochabamba and Delhi. Geoforum 54, 158–166. Movik, S., 2014. A fair share? Perceptions of justice in South Africa’s water allocation reform policy. Geoforum 54, 187–195. Mulvaney, D., 2014. Are green jobs just jobs? Cadmium narratives in the life cycle of Photovoltaics. Geoforum 54, 178–186. Neumann, Roderick P. (Ed)., 2009. Political ecology: theorizing scale. Spec. Iss. Prog. Hum. Geogr. 33(3). Newell, P., 2005. Race, class and the global politics of environmental inequality. Glob. Environ. Polit. 5 (3), 70–93. Newell, P., 2006. Environmental justice movements: taking stock, moving forward. Environ. Polit. 15 (4), 656–660. Newell, P., 2007. Trade and environmental justice in Latin America. New Polit. Econ. 12 (2), 237–259. Newell, P., 2008. Trade and biotechnology in Latin America: democratization, contestation and the politics of mobilization. J. Agrarian Change 8 (2–3), 345– 376. Newell, P., 2012. Globalization and the Environment: Capitalism, Ecology and Power. Polity, Cambridge. Newell, P., Bumpus, A., 2012. The global political ecology of the CDM. Glob. Environ. Polit. 12 (4), 49–68. Newell, P., Wheeler, J. (Eds.), 2006. Rights, Resources and the Politics of Accountability. Zed Books, London. Okanta, I., Douglas, O., 2001. Where Vultures Feast: Shell, Human Rights and Oil in the Niger Delta. Sierra Club, New York. Okereke, C., 2010. Global Justice and Neoliberal Environmental Governance: Sustainable Development, Ethics and International Co-operation. Routledge, London. Okereke, C., Dooley, K., 2009. Principles of justice in proposals and policy approaches to avoided deforestation: towards a post-Kyoto climate agreement. Glob. Environ. Change 20, 82–95. O’Rourke, D., Connolly, S., 2003. Just oil? The distribution of environmental and social impacts of oil production and consumption. Annu. Rev. Environ. Resour. 28, 587–617. Page, E., 2006. Climate Change, Justice and Future Generations. Edward Elgar, Cheltenham. Panitch, L., Gindin, S., 2012. The Making of Global Capitalism. Verso, London. Peet, R., Watts, M. (Eds.), 2004. Liberation Ecologies: Environment, Development, Social Movements, second ed. Routledge, London. Peet, R., Robbins, P., Watts, M. (Eds.), 2011a. Global Political Ecology. Routledge, London and New York. Peet, R., Robbins, P., Watts, M., 2011b. Global nature. In: Peet, R., Robbins, P., Watts, M. (Eds.), Global Political Ecology. Routledge, London and New York, pp. 1–47. Peluso, N.L., 1996. Fruit trees and family trees in an anthropogenic forest: ethics of access, property zones, and environmental change in Indonesia. Comparat. Stud. Soc. Hist. 28, 510–548. Rangan, H., 2004. From Chipko to Uttaranchal: the environment of protest and development in the Indian Himalaya. In: Peet, R., Watts, M. (Eds.), Liberation Ecologies: Environment, Development, Social Movements, second ed. Routledge, London, pp. 371–393. Robbins, P., 2007. Lawn People: How Grasses, Weeds, and Chemicals Make Us Who We Are. Temple University Press. Robbins, P., 2014. Cries along the chain of accumulation. Geoforum 54, 233–235. Sachs, W. (Ed.), 1993. Global Ecology: A New Arena of Political Conflict. Zed Books, London. Sachs, W., Santarius, T. (Eds.), 2005. Fair Future: Resource Conflicts, Security and Global Justice. Zed Books, London. Scanlon, J., Cassar, A., Nemes, N., 2004. Water as a Human Right? IUCN, Gland. Schlosberg, D., 2004. Reconceiving environmental justice: global movements and political theories. Environ. Polit. 13 (3), 517–540. Schlosberg, D., 2007. Defining Environmental Justice: Theories, Movements and Nature. Oxford University Press, Oxford. Schroeder, R., St. Martin, K., Wilson, B., Sen, D. (Eds.), 2008. Third world environmental justice. Spec. Iss. Soc. Nat. Resour. 21(7). Sen, A., 2009. The Idea of Justice. Allen Lane, London. Sikor, T., 2013a. REDD+: the justice effects of technical design. In: Sikor, T. (Ed.), The Justices and Injustices of Ecosystem Services. Earthscan, London, pp. 46–68. Sikor, T. (Ed.), 2013b. The Justices and Injustices of Ecosystem Services. Earthscan, London. Sikor, T., Stahl, J. (Eds.), 2011. Forests and People: Property, Governance, and Human Rights. Earthscan, London. Sikor, T., Stahl, J., Dorondel, S., 2009. Negotiating post-socialist property and state: struggles over forests in Albania and Romania. Develop. Change 40 (1), 171– 193. Sikor, T., Fisher, J., Few, R., Martin, A., Zeitoun, M., 2013a. The justices and injustices of ecosystem services. In: Sikor, T. (Ed.), The Justices and Injustices of Ecosystem Services. Earthscan, London, pp. 187–200. Sikor, T., Auld, G., Bebbington, A.J., Benjaminsen, T.A., Gentry, B.S., Hunsberger, C., Izac, A.-M., Margulis, M., Plieninger, T., Schroeder, H., Upton, C., 2013b. Global land governance: from territory to flow? Curr. Opin. Environ. Sustain. 5, 522– 527. Srinivasan, U.T., Carey, S.P., Hallstein, E., Higgins, P.A.T., Kerr, A.C., Koteen, L.E., Smith, A.B., Watson, R., Harte, J., Norgaard, R.B., 2008. The debt of nations and the distribution of ecological impacts from human activities. PNAS 105 (5), 1768–1773. Upton, C., 2014. The new politics of pastoralism: identity, justice and global activism. Geoforum 54, 207–216. Vincent, A., 1998. Is environmental justice a misnomer? In: Boucher, D., Kelly, P. (Eds.), Social Justice: from Hume to Walzer. Routledge, London, pp. 120–140. http://refhub.elsevier.com/S0016-7185(14)00088-8/h0065 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0065 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0070 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0070 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0075 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0075 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0075 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0080 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0080 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0600 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0600 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0090 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0090 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0095 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0095 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0095 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0100 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0100 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0105 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0105 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0700 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0115 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0115 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0120 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0120 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0125 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0125 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0130 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0130 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0135 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0135 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0140 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0145 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0150 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0150 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0155 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0155 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0160 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0160 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0165 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0165 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0170 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0170 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0180 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0180 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0185 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0185 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0185 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0190 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0190 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0195 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0705 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0705 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0205 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0205 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0210 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0210 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0215 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0215 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0230 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0230 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0710 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0710 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0710 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0235 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0235 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0715 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0245 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0245 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0245 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0250 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0250 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0255 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0255 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0260 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0260 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0720 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0720 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0720 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0730 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0730 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0735 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0735 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0305 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0305 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0300 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0300 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0295 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0295 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0290 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0290 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0290 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0285 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0285 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0310 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0310 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0315 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0315 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0320 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0320 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0325 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0325 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0325 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0330 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0330 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0330 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0335 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0335 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0335 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0340 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0340 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0345 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0350 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0350 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0355 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0355 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0360 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0360 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0365 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0365 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0365 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0370 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0370 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0370 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0370 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0375 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0375 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0740 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0390 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0390 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0385 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0385 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0395 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0400 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0400 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0405 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0405 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0415 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0420 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0420 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0425 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0425 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0440 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0440 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0445 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0445 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0445 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0430 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0430 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0430 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0435 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0435 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0435 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0435 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0450 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0450 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0450 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0450 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0745 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0745 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0460 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0460 Editorial / Geoforum 54 (2014) 151–157 157 Visvanathan, S., 2005. Knowledge, justice and democracy. In: Leach, M., Scoones, I., Wynne, B. (Eds.), Science and Citizens. Zed Books, London, pp. 83–97. Walker, G., 2009. Globalising environmental justice: the geography and politics of frame contextualisation and evolution. Glob. Soc. Policy 9 (3), 355–382. Walker, G., 2011. Environmental Justice. Routledge, London. Walker, G., Bulkeley, H. (Eds.), 2006. Geographies of environmental justice. Spec. Iss. Geoforum 37(5). White, B., Borras Jr., S.M., Hall, R., Scoones, I., Wolford, W. (Eds.), 2012. The new enclosures: critical perspectives on corporate land deals. Spec. Iss. J. Peasant Stud. 39(3–4). Williams, R., 1999. Environmental injustice in America and its politics of scale. Polit. Geogr. 18 (1), 49–73. Yashar, D., 2005. Contesting Citizenship in Latin America: The Rise of Indigenous Movements and the Post-Liberal Challenge. CUP, Cambridge. Zeitoun, M., 2013. Global environmental justice and international transboundary waters: an initial exploration. Geogr. J. 179 (2), 141–149. Thomas Sikor School of International Development, University of East Anglia, Norwich NR4 7TJ, UK E-mail address: t.sikor@uea.ac.uk Peter Newell Department of International Relations, University of Sussex, Brighton, East Sussex BN1 9SN, UK E-mail addresses: P.J.Newell@sussex.ac.uk Received 21 January 2014 Received in revised form 28 March 2014 Available online 15 May 2014 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0465 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0465 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0470 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0470 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0475 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0490 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0490 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0495 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0495 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0500 http://refhub.elsevier.com/S0016-7185(14)00088-8/h0500 mailto:t.sikor@uea.ac.uk mailto:P.J.Newell@sussex.ac.uk Globalizing environmental justice? Why ‘justice’? Why ‘environmental’? Why ‘global’? Globalizing environmental justice Acknowledgements References 
work_ioz7gqyyw5fa3l4k4d2bikdszu	----	UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) UvA-DARE (Digital Academic Repository) Private Law, Regulation, and Justice Hesselink, M.W. DOI 10.2139/ssrn.2744565 10.1111/eulj.12195 Publication date 2016 Document Version Accepted author manuscript Published in European Law Journal Link to publication Citation for published version (APA): Hesselink, M. W. (2016). Private Law, Regulation, and Justice. European Law Journal, 22(5), 681-695. https://doi.org/10.2139/ssrn.2744565, https://doi.org/10.1111/eulj.12195 General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. Download date:06 Apr 2021 https://doi.org/10.2139/ssrn.2744565 https://doi.org/10.1111/eulj.12195 https://dare.uva.nl/personal/pure/en/publications/private-law-regulation-and-justice(c4a35197-4a87-4760-af63-ac78e0a62d26).html https://doi.org/10.2139/ssrn.2744565 https://doi.org/10.1111/eulj.12195 1 PRIVATE LAW, REGULATION AND JUSTICE Martijn W. Hesselink Abstract: This paper critically engages with the European Regulatory Private Law thesis (ERPL). The main strength of ERPL is that it offers an entirely new perspective on European private law. However, as a complete theory of European private law, ERPL is too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the private law locked up in regulatory silos for specific market sectors it obscures the reality of the consumer acquis and its transformative force. A fuller picture would include the contours of a loosely coherent system of European private law that is currently emerging. The main pillars of that pragmatic system are (for now) the withdrawal rights, unfair terms control, and remedies for non-conformity. Moreover, the contribution of European private law to access justice cannot be the only standard for its evaluation and critique; at least as important are interpersonal justice and democratic legitimacy. Introduction Since 2011, an exciting research project has been based at the European University Institute in Florence. The full title of the project is: ‘European regulatory private law: the transformation of European private law from autonomy to functionalism in competition and regulation’. Its initiator and principal investigator is Hans Micklitz, but it has involved a dozen of other researchers. Together, they have developed what we may refer to as the ‘ERPL-thesis’, or simply as ‘ERPL’. Now that the project is reaching its conclusion, it has invited external comments from colleagues. In this short paper, I will critically engage with the main objectives and central claims of ERPL. The ERPL-project’s aim was to elaborate ‘a normative model of a self-sufficient European private legal order and its interaction with national private law systems’.1 However, the research method it adopted was ‘a socio-legal methodology’, which involved in particular the collection of empirical materials and the incorporation of these into its legal and theoretical analysis.2 Consequentially, I will offer two sets of observations, respectively on ERPL’s descriptive account of European private law, and on its normative model, in particular its conception of justice. As we will see, there is strong a connection between these two, both in the ERPL thesis and in the alternative account that I will propose. I regard two texts as the principal statement (for now) of ERPL, ie A self-sufficient European private law – a viable concept? (2012)3 and European regulatory private law – the paradigms tested (2014).4 These are EUI ‘working papers’ but in reality each of them constitutes an edited volume with a variety of different contributions. In addition, I will also refer to some other publications by the principal investigator where this is helpful for a better understanding of specific ideas underlying ERPL. 1 ‘Project Description’, available at https://blogs.eui.eu/erc-erpl/project-description/. 2 Ibidem. 3 H.-W. Micklitz / Y. Svetiev (eds.), A self-sufficient European private law – a viable concept? EUI Working Papers, LAW 2012/31. 4 H.-W. Micklitz, Y. Svetiev & G. Comparato (eds.), European regulatory private law – the paradigms tested, EUI Working papers, LAW 2014/04. https://blogs.eui.eu/erc-erpl/project-description/ 2 Silos of regulatory private law or pillars of pragmatic private law? The failure of a grand project: chronicle of a death foretold5 The withdrawal in 2014 by the European Commission of its proposal for a regulation on a Common European Sales Law represents a watershed in the development of European private law: the Common Frame of Reference is dead, the dream of a European Civil Code is over.6 That dream (and nightmare for some) had dominated the debate on the future European private law for two decades. At the heart of it was the ambition to substitute the ‘piecemeal’, ‘impressionistic’ or ‘sector-specific’ approach that the EU had taken so far to the Europeanisation of private law with a more systematic approach, based on general rules and more familiar doctrinal concepts of private law. This endeavour was strongly supported by a Europe-wide network of legal academics, who were organised in a variety of projects and were driven by European ideals and by a concern to preserve the systematic nature and doctrinal sophistication of private law systems that had been under constant attacks from unsystematic EU directives, by recreating a systematic private at the European level. The academic movement had gained momentum when it received political endorsement, especially when the European Commission announced in 2003 that a ‘common frame of reference’ was going to be elaborated by academics.7 It reached its apex in 2010 when Viviane Reding, the EU Justice Commissioner and Vice-President of the European Commission, declared the preparation of a European optional instrument on contract law to be the core ambition of her mandate.8 However, very soon it became clear that she had underestimated how much the political climate had changed following the defeat of the European Constitution in referendums in France and the Netherlands, and the implications the revival of nationalist sentiments would have for the political support for this other ‘grand project’. The silos view Regulatory private law Micklitz saw the failure of the ECC/CFR/CESL project coming, well before most others.9 Explicitly as an alternative to that grand project,10 Micklitz and his team set out to map 'European regulatory private law', i.e. the private law resulting from the regulatory agenda of the EU. This 'visible hand of European regulatory private law' marks the transformation of private law into 'economic law'.11 It is one of the greatest merits of ERPL that it makes visible the private law elements in the regulation of a broad variety of markets, in particular 5 After: H.-W. Micklitz and N. Reich, ‘Crónica de una muerte anunciada: the Commission proposal for a ‘Directive on consumer rights’, 46 CMLR (2009), 471-519 6 Proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law, COM(2011) 635 final. The new European Commission withdrew the proposal in December 2014. See Commission Work Programme 2015 A New Start, Strasbourg, 16.12.2014 COM(2014) 910 final, Annex 2, no. 60. 7 A More Coherent European Contract Law, an Action Plan, Brussels, 12.2.2003, COM(2003) 68 final, 62. 8 Cf. V. Reding, 'The next steps towards a European contract law for businesses and consumers, keynote speech at the conference “Towards a European contract law"', Leuven, 3 June 2011 (SPEECH/11/411). 9 H.-W. Micklitz, ‘Failure or ideological preconceptions? Thoughts on two grand projects: the European constitution and the European civil code’, in: K. Tuori and S. Sankari (eds.), The many constitutions of Europe (Ashgate, 2010), 109-142. 10 See H.-W. Micklitz, 'The Visible Hand of European Regulatory Private Law - The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation, 28 Yearbook of European Law (2009), 3-59, 6: ‘counter-project’. 11 Micklitz, n 10 above. 3 the new markets resulting from privatisation, e.g. telecommunications, postal services, electricity, gas, transport, health care, education, and from the opening-up of already existing national markets, such as especially the market for financial services. A key element in ERPL’s descriptive account of 'the transformation of private law' is the idea of regulatory silos.12 In a manner akin to systems theory, different market sectors are presented as relatively closed entities, each with its own specific rationality, of which private law rules are but one element. Micklitz and Svetiev write:13 [T]he key markets for services ... may be viewed sectorally, whereby the making of the rules, the substantive standards and the enforcement mechanisms all follow a particular rationality enshrined in that market sector, which cuts across the boundaries of public and private responsibilities as well as boundaries between the national, European and international level. These sectoral regimes could be compared with ‘silos’, in which networks are established, networks between agencies, networks between agencies and industry/business, to some extent public interest groups, networks in which the distinction between public and private, between national and international is withering away.' Clearly, a private law that comes in silos looks radically different not only from what those who believed in a European civil code had in mind, but also from the national private law systems that we have been familiar with in the Member States. For such a private law does not consist of general rules, replaces right and obligations with standards and benchmarks, is made by different actors with different expertise, and is not usually the basis of (nor chiefly meant for) the resolution of individual disputes in courts. If such a private law scattered across a multitude of regulatory silos, each fragment following the regulatory rationale of its respective silo, does represents 'the full picture' of European private law14 then clearly private law has indeed undergone a radical transformation. The question, however, is whether the silos view offers a complete representation of European private law. I don't think it does. The full picture? By placing regulatory silos on the foreground ERPL gives an impression of strong compartmentalisation of European private law according to specific market sectors. However, surely that is only part of the picture. For the silos view almost completely ignores the existence of the consumer acquis. European consumer law does not al all correspond to the model of vertical regulatory silos that each correspond to the specific logic of a particular market sector. Think only of the unfair terms directive, which is applicable - and has been applied - across all sectors of the European internal consumer market, including consumer credit (Cofidis),15 the sale by instalments of encyclopaedias (Océano),16 the sale of parking spaces in a multi-storey car park (Freiburger Kommunalbauten),17 mobile telephone contracts (Mostaza Claro,18 Pannon, 19 Asturcom),20 mortgage loan agreements (Caja de 12 ERPL offers four parameters for the claimed transformation, but the silos element seems to be central to the account. 13 H.-W. Micklitz and Y. Svetiev, 'The transformation(s) of private law', in: n 4 above, 78. 14 H.-W. Micklitz, 'A self-sufficient European private law – a viable concept?', in: n 3 above, 12. 15 Case C-473/00. 16 Joined Cases C-240/98 to C-244/98. 17 Case C-237/02. 18 Case C-168/05. 4 Madrid,21Aziz,22 Sánchez Morcillo and Abril García),23 agreements for a loan to buy a car (Pénzügyi Lízing,24 Banco Español de Crédito),25 insurance contracts (Van Hove),26 and contracts for legal services (Šiba). 27 These are only some examples from CJEU cases; throughout Europe national laws transposing the directive are applied by courts (and are applicable also in the absence of any dispute) to contracts in any thinkable sector of the internal market. In addition, the unfair terms directive, just like the other main European directives constituting the body of European consumer law, also lacks most of the other characteristics that are typical of the regulatory silos, in particular the mix of private law, public law, and private regulation - these directives are essentially concerned with private law -, and the replacement of legislation by standard setting. With little exaggeration we could say that ERPL places on the foreground EU regulation in those fields where the private law aspects are actually of minor importance from the very regulatory perspective ERPL adopts, while it almost completely disregards the EU legislation in which private law is core. The pillars view The consumer acquis A very different descriptive account of European private law can be given, one where European consumer law does not fall off the picture but is in fact at its centre and where consumer law is presented as private law in the more traditional sense of the law determining the rights and obligations of private parties towards one another. Central to this account are the directives that have indeed transformed private law in Europe, i.e. the unfair terms directive 1993,28 the consumer sales directive 1999,29 the consumer rights directive 2011,30 and the 2015 proposals for two new directives on the online sale of goods and of digital content.31 These directives have in common that they are concerned with the rights and obligations of consumers towards their professional sellers and service providers, and that their substantive scope is not limited to any specific market (or to one that is meant to overshadow all others, i.e. the online market). Part of the same transformation are also the consumer credit directive 2008,32 the timeshare directive 2009,33 and the package travel directive 2015,34 which although more sector-specific in scope, share the same horizontal characteristics (notably the private law remedies) while having hardly anything in common with the vertical and closed regulatory silos. 19 Case C‑243/08. 20 Case C‑40/08. 21 Case C‑484/08. 22 Case C-415/11. 23 Case C-169/14. 24 Case C‑137/08. 25 Case C-618/10. 26 Case C‑96/14. 27 Case C‑537/13. 28 Directive 93/13/EEC. 29 Directive 1999/44/EC. 30 Directive 2011/83/EU, replacing Directives 85/577/EEC (doorstep selling) and 97/7/EC (distance selling) 31 Proposal for a directive on certain aspects concerning contracts for the supply of digital content, Brussels, 9.12.2015, COM(2015) 634 final; proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods Brussels, 9.12.2015, COM(2015) 635 final. 32 Directive 2008/48/EC, replacing 87/102/EEC. 33 Directive 2008/122/EC, replacing Directive 94/47/EC. 34 Directive 2015/2302/EU, replacing Directive 90/314/EEC. 5 Pillars of European private law The replacement in 2015 of the CESL-proposal by two proposals for directives for consumer contract law for the digital single market was a moment of rupture not only because it gave the final blow to the dream of a European civil code,35 but also because it displayed the contours of the developing system of EU private law. What we see emerging today is a loosely coherent system built around three main pillars, i.e. withdrawal rights, unfair terms control, and non-conformity. These are three main categories through which the bulk of disputes between sellers on internal market and their customers are going to be resolved. (There is a fourth characteristic element, but its role is more ornamental: the pre- contractual information duties that are pervasively present but do not do much work in deciding cases as they mostly lack any clear remedies.)36 These pillars of European private law do not formally replace the traditional doctrinal categories of general contract law existing in the Member States, but in practical terms they make them become much less relevant. Withdrawal rights are much easier to handle than the intricate rules on offer and acceptance and the various ‘defects of consent’, each with their nuanced conditions and exceptions. Similarly, the replacement of a good that does not correspond to the contract (either because it does not match the description or it is unfit for its ordinary use) seems more straight-forward than the highly refined and nuanced - and sometimes truly baroque - rules in the Member States concerning the legal consequences of the non-performance of a contractual obligation. And the category of unfair terms, which are simply not binding on consumers, is already overshadowing the operation of classical doctrines like good faith, illicit cause, and (again) the formation rules. In practice, the familiar categories of contract law - sometimes referred to as being based of the life cycle of a contract -, such as formation, validity, interpretation, contents and effects, performance, and non-performance and remedies - that were still the basic categories in the Principles of European contract law, the frontrunner of the European civil code movement -, will be pushed to the background increasingly by withdrawal rights, unfair terms control, and remedies for non-conformity. It is important to realise that these key doctrines soon will apply to most internal market transactions with consumers. Withdrawal rights were introduced by the European legislator for doorstep-selling but were then extended to timesharing, distance selling and consumer credit (and were further synchronised through revisions), and, finally, to all online and off- premise contracts through the consumer rights directive. The control of unfair terms has been applicable in all economic sectors already for more than two decades. As to non- conformity, its scope – already wide under the consumer sales directive – will be further extended, by the proposed new directive, from goods to digital content, i.e. from the retail market to much of the modern economy. In other words, withdrawal rights, unfair terms control, and remedies for non-conformity are where the action is. 35 In theory, the CFR could still become the object of an inter-institutional agreement, as was originally considered to be one of its possible roles. However, at present there does not seem to exist any political support for this idea. Moreover, the academic movement that was the main driver of the CFR seems to have dissolved almost entirely, with perhaps the European Law Institute in Vienna as its last remaining stronghold. 36 The exception are the pre-contractual duties to inform consumers about their withdrawal rights. Violation of that duty has the important legal consequence of extending the term for withdrawal. However, for that reason this may also be regarded simply as one of the situations where a withdrawal right exists. 6 The most striking novelty of the developing three pillar systems is that it is much less sophisticated, nuanced and doctrinal, and much more pragmatic and user-friendly than the familiar private law categories traditionally covering approximately the same legal questions. Thus, they seem to fit much better in a time where states have come to regard their monopolies on the administration of justice (connected with the state monopoly on the legitimate use of force) as a financial burden and, therefore, are massively engaging in the privatisation of dispute resolution by encouraging (or even requiring) sellers (understood in the broad sense of including ‘sellers’ of services) and their customers to resort to ADR and ODR. In these contexts, where sellers and their clients often are not represented by trained lawyers, the niceties of the traditional private law system become a burden, and a more simplified system with a limited set of key doctrines and remedies capable of resolving most disputes becomes more attractive. From the perspective of corrective justice (i.e. the proper determination of the exact borderline between mine and thine, and the correction of illegitimate boundary crossing) and the cultural value of a sophisticated system of private law, this shift undoubtedly represents a major loss. However, from the distributive perspective of the state’s concern to ensure continued equal access to justice (not to be confused with access justice, on which below) this may actually be an acceptable price to pay.37 The personal scope of the three pillar system is limited (formally and for now) to business- to-consumer contracts. For that reason, it may seem improper to speak so generally of pillars of European private law. However, an important ‘radiating’ effect (or even a degree of imperialism) of the developing system of European private law is to be expected for a number of reasons. First, the practical advantage of user-friendliness applies equally to most other than consumer disputes. This is only different in cases where the (financial) stakes are so high that the parties feel they need - in advance of any dispute, when drafting individually the terms of their contract with the assistance of specialised lawyers - the detailed legal certainty than the familiar nuanced system of contract law provides. In all other cases (i.e. the bulk of business-to-business disputes and certainly in the increasingly important peer-to-peer market), dispute resolution costs often represent a decisive factor. Thus, a simplified system of rules for the resolution of disputes concerning market transactions could become an attractive model for lawmakers also outside B2C. Therefore, a certain spill-over effect is to be expected. Moreover, the three pillar system has a very wide territorial scope: it is applicable (indirectly, through transposition and where necessary harmonious interpretation) throughout the entire EU, while the more detailed and nuanced classical contract law doctrines differ from country to country. As a result, while the familiarity of market operators and their legal advisors with the three pillar system will gradually increase they may increasingly regard the deviation from the European private law system for B2B by national legal systems as annoying, thus reversing the grounds of what is experienced as the norm and the exception. Finally, there is the crucial role of the CJEU which represents a strong normalising force of its own. Not only does the CJEU generally ensure the uniform application and interpretation of the European private law system throughout the EU and, crucially, across silos,38 there are three additional reasons why the CJEU is likely to increase public attention for – and hence familiarity with – the emerging 37 On the normative implications of the transformation of private law, see below. 38 In other words, the silos view overlooks the fact that all regulatory silos are connected at the top by the strongly convergent force of the CJEU. 7 main pillars of European private law. First, as a result of the CJEU’s specific task in giving preliminary rulings, cases involving claims of relatively modest economic interest litigated before lower courts, nevertheless reach the Court of Justice. Secondly, the Court has been remarkably activist, and attracting a lot of attention, exactly with regard to these three pillars. Think only of Heininger39 and Messner40 for the withdrawal rights, the long line of cases on unfair terms ranging form Océano to Aziz and beyond, and Quelle41 and Weber and Putz42 for non-conformity. Thirdly, the general style of reasoning of the Court is pragmatic rather than formal-doctrinal. So, the active role of the CJEU in developing the European private law system is likely to further reinforce its pragmatic imprinting and strengthen it divergence from classical private law. The idea of a three pillar system that I am proposing here is not meant as an essentialist theory. Nor should the pillars be reified. In other words, I am not claiming that EU private law is essentially based on three pillars. On the contrary, it is very well possible (indeed quite likely) that in the near future new pillars will be added, with the extension of the substantive scope of EU private law beyond what we traditionally refer to as contract law, or even that such pillars are already emerging, e.g. within the traditional field of tort law (think e.g. of product liability, unfair commercial practices, public procurement, and the private enforcement of competition law).43 However, I would expect that these other pillars would have a similarly pragmatic, undoctrinal nature. In particular, the pillars system does not seem to be based on one single underlying principle (or a limited set of these) that can provide secure guidance in its interpretation and further elaboration.44 A final characteristic – perhaps the most troubling one for those who are committed to preserving the coherence of the national legal system – is that the three pillar system is a competing system of private law. In spite of its instrumental genesis (i.e. internal market building), the right of withdrawal, the non-bindingness of unfair terms, and the remedies in case of non-conformity, are private law doctrines in that they determine the rights and obligations of one private party vis-à-vis another. They may have been enacted with a view to creating a level playing field for sellers and encouraging consumers to shop more often abroad, but they still determine private rights and obligations. However, they do so in a way that is markedly different from the traditional national private law systems, with new concepts (e.g. ‘not binding’ instead of absolute and relative nullity) and remedies (e.g. the withdrawal rights). And as said, for the reasons given, the new system of private law will engage in the competition with the old national ones having a series of comparative advantages. In an influential recent paper, Micklitz compared the German BGB and consumer law, respectively, to a heavy tanker and a sailing boat and argued that ‘[t]he heavy tanker BGB 39 Case C-481/99. 40 C‑489/07. 41 C‑404/06. 42 Joined Cases C-65/09 and C‑87/09. 43 The ‘Acquis principles’ consisted of 7 chapters (in addition to the introductory provisions), on pre- contractual duties, non-discrimination, formation, withdrawal, non-negotiated terms, performance of obligations and remedies. See the Principles of the Existing EC Contract Law (Acquis) Contract I and Contract II, prepared by the Research Group on the Existing EC Private Law (Acquis Group) (Sellier, 2007, 2009). 44 On the normative implications of this, see below. 8 cannot keep up with the dynamics of the agile consumer law.’45 A heavy tanker ship, Micklitz explains, ‘can change its direction in only a limited way and needs time for every change of direction’ while sailing boats ‘can change their direction quickly and easily, but are exposed to wind and weather—that is to say political current—in a far stronger way.’46 This metaphor was inspired, it seems, by the same regulatory perspective as ERPL, where changes in regulatory agendas or techniques are on the foreground. In contrast, from the perspective that I am proposing here the main difference between the classical national systems of private law in the Member States and European private law is not its regulatory nature, but its more pragmatic style. European private law is far less doctrinal and, consequentially, much more user-friendly (for unsophisticated users) and more future-proof than the BGB and other national civil codes, even after their recent reforms. Justice beyond market access Access justice Although the comprehensive mapping of the private law elements in the regulation of different market sectors undoubtedly has been one of its the most important achievements, the ERPL-project’s main objective nevertheless was normative rather than descriptive. The normative model that ERPL proposes is that of ‘access justice’, by which it means justice through market access.47 It is not entirely clear how we are supposed to understand ‘normative’ here. Is ‘access justice’ meant to describe the justice conception of European private law, i.e. the justice understanding immanent to European private law (perhaps as part of its Geist)? Or should we understand ‘access justice’ as an external normative standard by which we can evaluate European private law? The Project Description seems to suggest the former, i.e. access justice as a hypothesis about the normative foundation of European private law, to be verified empirically.48 However, Micklitz has also assimilated access justice to Rawls’ justice as fairness,49 which is meant as an external standard for evaluating whether a society’s main political, social, and economic institutions are sufficiently just.50 Therefore, and also because the normative question of what standards of justice European private law ought to comply with seems to me to be the more important one, in the following I will treat access justice as a theory of justice. From that perspective, I will address three main points with regard to access justice: its ambiguity resulting from its dual normative basis; its disregard for interpersonal justice; and its apparent indifference towards legitimacy. Ensuring market access for the right reasons The European Commission has justified its recent proposals for a consumer contract law for the digital single market by a dual objective, i.e. 1) to boost economic growth in the EU, and 2) to ensure a high level of consumer protection.51 These two objectives are rather different 45 Hans-W. Micklitz, ‘Do Consumers and Businesses Need a New Architecture of Consumer Law? A Thought Provoking Impulse’, Yearbook of European Law, Vol. 32, No. 1 (2013), 266–367, 281. 46 P. 269. 47 See the Project Description, n 1 above. 48 Ibidem, 2: ‘The research, particularly in its empirical dimension, aims to verify some initial hypotheses: (...) 3) ERPL yields its own order of values, enshrined in the concept of access justice.’ See also ibidem, 7-8. 49 Micklitz, n 10 above, 13. 50 J. Rawls, Political liberalism (Columbia University Press, 2005), 11. 51 See Proposal for a directive on certain aspects concerning contracts for the supply of digital content, Brussels, 9.12.2015, COM(2015) 634 final, recitals 1 and 2. 9 in nature. They may go hand in hand when a high level of consumer protection raises consumer confidence and encourages them to reap the full benefits of the internal market. However, they may also conflict, for example when the level or type of consumer protection risks to endanger economic growth, as may happen e.g. when it comes to the protection of particularly vulnerable consumers. The theory of access justice is similarly structured and suffers from the same ambivalence. Access justice means justice through access to markets, in particular through private law rules that make sure that weaker parties obtain and maintain market access. The two key elements are access rights and non-discrimination.52 In this way, one might think, the theory could secure support both from utilitarians and from liberal-egalitarians, albeit for different reasons. Utilitarians will approve of an overall increase in market access because this is likely to bring a rise in social welfare through enhanced preference satisfaction: consumers will be able to buy more goods and services than before (access to more markets) and/or against lower prices (more people have access to the same markets), while sellers will be selling more, which makes them (or their shareholders) happy too. Thus, there is likely to be a net surplus, not only in the narrow sense of GDP growth but probably also in terms of broader notions like preference satisfaction or even happiness.53 The anti-discrimination and anti-exclusion rationale will appeal to liberal-egalitarians.54 If individuals that previously had no access to markets now gain access and, in particular, if these people (or at least some of them) belong to the least well-off groups in society then, for example, from the perspective of the Rawlsian difference principle, which requires from a society making institutional choices with different outcomes for different groups, that these choices work at least also to the benefit of the least well off, insofar the society becomes more just.55 Thus, access justice could be regarded as an implementation through private law of opportunity-egalitarian principles, notably the Rawlsian difference principle.56 At first sight, the capacity to gain support from both welfarists and liberals seems an important advantage of the theory. Indeed, one might think that liberal-egalitarians and utilitarians could reach an overlapping consensus on the principles access justice.57 The idea of an overlapping consensus on political principles of justice was introduced by Rawls in order to address the problem of how to achieve justice in a pluralist society, where people have divergent worldviews and adhere to different ultimate values.58 According to Rawls 52 H.-W. Micklitz, ‘Social justice and access justice in private law’, in H.-W. Micklitz (ed.), The many faces of social justice in private law (Elgar, 2011), 3-60. 53 This would be different only in the case of externalities, which may exist e.g. when more goods bought online are transported over longer distances and the costs of pollution are not internalised through appropriate taxes, but these do not seem to be so pervasive and structural that they provide a general argument against access justice. 54 For some caveats see below. 55 Here I leave to one side the question of whether EU private law rules is part to the basic structure of society to which alone the Rawlsian principles of justice are applicable. On this question, see most recently S. Scheffler, ‘Distributive justice, the basic structure and the place of private law’, Oxford Journal of Legal Studies (2015), 1–23. 56 In this sense, J. Klijnsma, Contract law as fairness (Amsterdam, 2014), 76. 57 In addition, access justice might also appeal to communitarians to the extent that it expresses convincingly (in their eyes) the justice conception immanent to European private law (see above). 58 Rawls, n 50 above. 10 citizens who are willing to live together with mutual respect for each other’s values, should be able to find some common principles of justice that are acceptable from the perspective of their respective worldviews, and could be included by each citizen in her or his ‘comprehensive doctrines’ as a ‘module’. Arguably, access justice would be a good candidate for becoming such a module. However, the notion of an overlapping consensus is problematic. If the principles of justice are to do any useful work they will have to be interpreted. However, different citizens and officials will interpret the principles differently, because, when interpreting, they will seek coherence with the other elements of their respective comprehensive doctrines lying beyond the module. These different worldviews, and their core values, will point in divergent directions. Doing your best to remain neutral does not help since there is no neutral direction.59 Rawls himself underlined that a mere modus vivendi is not sufficient and that the principles will have to be accepted ‘for the right reasons’.60 However, it seems impossible to find an overlapping consensus also with regard to the reasons for adopting the principles of justice. Similar interpretative problems are bound to occur when we try to apply the theory of access justice in practice. The objective of increasing the total amount of market accesses (by opening up more markets to more people) and that of ensuring market access for the least well off (by protecting particularly vulnerable consumers and by combating discrimination) may run parallel up to some point, but when questions arise of whose access should be ensured to which markets and against what price, there is bound to be divergence between the two strands of support for access justice. When that happens – i.e. in hard cases – access justice seems to lack an internal mechanism for answering the question of whether trade-offs are permitted, and if so which. It does not, therefore, seem to represent a stable standard for evaluating – and criticising - the justice of rule choices for European private law that the European legislator has already made in the past or is proposing for the future. Civil justice EU private law offers consumers (and sometimes also other customers)61 certain remedies in certain cases.62 Consumers have these remedies not against the EU, but against the seller or service provider they contracted with. So, as a descriptive matter, even if we understand European private law as regulatory and as aiming at ensuring market access, then still these private law rules at least play a role also in the relationship between a specific buyer and a specific seller. In other words, the interpersonal effects of EU private law are undeniable. If withdrawal rights did not exist, if unfair terms were binding upon consumers, and if no or different remedies were available in the case of non-conformity in consumer sales contracts, then that would matter for the relationships between consumer buyers and 59 For criticism along these lines, J. Waldron, ‘Isolating public reasons’, T. Brooks and M.C. Nussbaum (eds.), Rawls’s Political Liberalism (Columbia University Press, 2015), 113-137. 60 Rawls, n 50 above, xlv. 61 E.g. Regulation (EC) No 261/2004 on air passenger right. 62 To be more precise, EU directives require Member States to attach certain legal consequences, including, in particular, making certain remedies available in certain cases, sometimes as a minimum and sometimes without leaving the Member States any choice to provide consumers with better remedies (and if a Member State fails to do so its private law must be interpreted, as much as possible, as if it did comply with the directive). 11 professional sellers in the EU. Therefore, a theory of justice in European private law that does not address the interpersonal dimension at all would seem to be either a reductive theory or a merely partial one. It is not clear what the theory of access justice is, the former or the latter. As a complete and exhaustive theory of justice in European private law the access justice theory seems seriously flawed, because it totally disregards the interpersonal justice dimension of private law, which includes (but is not limited to) the important corrective (or restorative) justice of correcting or preventing wrongs. The main reason why contract terms should not be binding upon consumers when they cause ‘a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’,63 is that the enforcement of such terms, except if they have been individually negotiated or are core terms according to the directive,64 would be unjustifiable between the parties. Obviously, the availability of the same minimum level of consumer protection against unfair term throughout Europe is likely also to increase market access. This may contribute to economic growth, which many people regard as a good, and to improving equality of opportunity, which is right from the perspective of opportunity-egalitarian justice. However, it would be absurd to reduce the justice dimension of unfair terms law to mere access justice. The same applies to the strong right to specific performance (repair or replacement) that the consumer sales directive grants consumers in the case of non- conformity: when repair is not possible then the consumer is entitled to full replacement for free even if the costs of replacement are disproportionate to the value of the goods (absolute disproportionality).65 If we want to determine whether that rule, as interpreted by the CJEU, is justifiable then we will also have to address the question whether it is justifiable between the parties (e.g. for the reason that the remedy corrects a wrong; the disproportionate cost could have been avoided by the seller by delivering goods in conformity with the contract); we cannot limit our justification to the - probably correct - observation that the presence of strong remedies for non-conformity is likely to convince more consumers to access the market, especially markets (such as foreign markets) where they think they cannot trust the sellers. The same applies also with regard to the third pillar of European private law that I distinguished above. Undeniably, withdrawal rights play an important instrumental role in increasing consumer confidence in cross-border shopping and they probably contribute to access justice also by encouraging those who would otherwise not dare to shop online. However, this remedy would still lead to an injustice if their exercise by consumers could not be justified towards sellers. As a matter of fact, the justification of withdrawal rights in terms of interpersonal justice is not entirely self-evident. For their striking characteristic is that they allow consumers to walk away from a contract without giving any reasons, which seems to leave open the possibility that they can be exercised also when there are no good reasons.66 One possible justification is that in the type of contracting situations where the law provides for withdrawal rights, the binding force of contract should be understood as in fact postponed until the end of the cooling-off period (which itself can be justified by the concern to prevent a defect of consent resulting 63 Art. 3 Para 1, Directive 93/13/EEC. 64 Arts. 3 Para 1 and 4 Para 2. However, this is a minimum harmonisation directive; the Member States are allowed to provide consumers with more protection. 65 Weber and Putz, n 42 above. 66 That possibility is limited by the CJEU’s subjection of their exercise to the principles of civil law, such as those of good faith or unjust enrichment. See Messner, n 40 above. 12 from a high-pressure situation or from buying on the Internet where one cannot properly see, touch and try the goods). Another one, suggested above, is that given the limited resources that society has for determining the exact private right that parties have, it has opted for a lower (but still acceptable) degree of corrective justice by pragmatically offering more approximate rules and remedies (i.e. withdrawal rights) than the classical nuanced rules on offer/acceptance and defects of consent did – in other words, as a justifiable trade- off in a non-deal world between acceptable degrees of distributive and corrective justice. We do not have to sort out here which justification is more convincing; what matters here is that the mere fact that withdrawal rights boost market access does not suffice as a reason for a seller not to feel wronged by the unilateral and unmotivated withdrawal from the contract by a consumer buyer. In other words, the pillars that I suggested are currently emerging as central to the edifice of European private law will have to be justified also in terms of interpersonal (or civil) justice, as I think they can. The same applies to the more scattered bits and pieces of regulatory private law that ERPL has mapped. As said, it is not clear (to me) whether the access justice theory is meant as a full theory of justice in European private law. If it is not, then it can perhaps still be supplemented by the ERPL-project with an appropriate theory of interpersonal (or civil) justice. Legitimacy As we saw, ERPL makes an empirical case for understanding European private law as disintegrating rapidly into functionally distinct regulatory units (silos) on financial services, transport, energy, telecom and similar, where private law is merely one part, together with public law and self-regulation, of the regulatory compound that is being elaborated across borders by a relatively closed community of highly specialised experts. Above, I questioned, from a descriptive-analytical point of view, whether the silos view represent the full story (or even the most important part of the story) of European private law, and offered an alternative narrative, i.e. the story of a developing pragmatic system of European private law. Now it is time to come back to the silos account and to adopt a normative perspective on this perceived trend towards the fragmentation of private law, and in particular on question of the legitimacy of a private law that comes in regulatory silos. Again, it is not entirely clear whether ERPL is agnostic on the question of legitimacy, limiting itself to a descriptive account, or whether it is in fact also suggesting that it is right that private law making should take place in this way. At times, ERPL seems to endorse the essentially libertarian justification of 'law beyond the state' coming from a normative version of systems theory.67 On this view, democratic legislation belongs to a hopelessly old- fashioned way of looking at the world; what suffices in the globalising world is ‘rough consensus’.68 Similarly, ERPL seems to suggest or imply that the regulatory silo law making practices are not only a reality, but also justified.69 67 G. Teubner, ‘“Global Bukowina”: legal pluralism in the world society’, in: G. Teubner (ed.), Global law without a state (Dartmouth, 1997). 68 See G.-P. Callies and P. Zumbansen, Rough consensus and running code: a theory of transnational private law (Hart Publishing, 2010). 69 See Micklitz and Svetiev, n 12 above, 95. 13 Thus, ERPL seems apologetic or even supportive of practices that from legitimacy point of view, and therefore from the perspective of justice,70 are in fact highly problematic. For the proposition that regulatory silos, where closed communities of technocrats make rules and set standards that will become binding upon others, are also legitimate, is in direct collision with the very basic principle that the addressees of laws, including private laws, should be able to regard themselves also as their authors.71 That principle requires a democratic basis for private law, just as much as for any other legal rule.72 Nor is ‘regulatory private law’ excluded from this legitimacy demand. The determination of both the ends and the means of regulation require a strong democratic basis. From the normative perspective of legitimacy through democracy, therefore, Micklitz’s metaphor of the visible hand is not much more reassuring than Adam Smith’s classic of the invisible hand. First, because ‘hand’ remains in the singular, while market regulation should take place emphatically in the plural, i.e. by all those affected by it together. Secondly, because, while visible hands (in the plural) would at best refer to voting, we should understand the shaping of European private law as a discursive, reason-giving process. In other words, the most adapted anthropomorphic metaphor would seem to be a multitude of speaking mouths. As said, access justice lacks an internal standard for resolving conflicts among its two underlying objectives (i.e. to maximise overall access and to improve access for the least well-off). In addition, as we saw access justice cannot be - and may not be intended as - a full theory of justice. This means that, access justice concerns will have to be reconciled with other justice concerns, including in particular considerations of interpersonal justice. Moreover, although private law has to meet the requirements of justice this does not exclude that other considerations (e.g. of value) may also play a role (to the extent that this is compatible with justice). Further, people differ – sometimes quite strongly - on questions of justice, value and expediency, while we lack direct access to the truth in these matters, if it exists at all (as moral realists believe). Under these circumstances, the question of the proper procedure for arriving at private laws becomes all the more acute. In France, recently citizens were told by presidential decree (‘Le Président de la République ordonne ...’) what their contractual rights and obligations will be as of 1 October 2016.73 Remarkably, there are important differences between the draft ordonnance that was published a year earlier and the final one, but these are not the result of any parliamentary - or otherwise public - debate; they were decided upon behind closed doors at the ministry of justice. In contrast, the bulk of European private law, constituted by the consumer acquis, has a democratic basis. All consumer law directives and regulations have been adopted by the European Parliament, usually after extensive public debates in the Committees for Internal Market and Consumer Affairs and for Legal Affairs and often preceded by public consultations. As a matter of fact, also the Common European Sales Law proposal was adopted, in first reading, by the European Parliament in 2014, after an intense political 70 Normative legitimacy is a dependent concept, i.e. depending on a conception of justice. See R. Forst, Normativität und Macht (Suhrkamp, 2016), 186-197. 71 J. Habermas, Between facts and norms: contributions to a discourse theory of law and democracy (Polity Press, 1996), 408; R. Forst, The right to justification: elements of a constructivist theory of justice (Columbia University Press, 2012), 135. 72 See Habermas, n 71 above. See further M.W. Hesselink, 'Democratic contract law', 11 ERCL (2015), 81-126. 73 Ordonnance no 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations. 14 debate, with several public hearings, culminating in a plenary debate and vote where it carried an overwhelming majority.74 However, it was withdrawn a few months later by the non-elected European Commission following a letter (that was never published) from the Ministers of Justice of five Member States (in none of which the content of the proposed contract law rules had been properly debate in their national parliaments). Of course, I am not suggesting that the democratic basis for the CESL proposal represents an ideal model - much remains to be improved -, but there was a meaningful public (and politicised) debate, not just a vote, while, in contrast, the decision to reject the proposal was taken by technocrats behind closed doors after non-public pressure from national governments. In light of this fact of a democratic European private law (at least to some degree), it seems difficult for a normative theory of European private law to remain agnostic about the need for a democratic basis and, more specifically, the kind of institutions and processes that are needed for European private law to be legitimate. Conclusion The ERPL-project was set up explicitly as a counter-project to the European civil code and common frame of reference project to create a coherent European system of general private law rules. The main strength of ERPL is that it offers an entirely new perspective on European private law (which takes courage) and that it started do so already when everyone else (i.e. politicians and academic) was still concerned mainly with the CFR and the CESL. However, now that the latter project has failed, ERPL looks too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the private law locked up in regulatory silos for specific market sectors and on access justice, it risks to obscure the reality, in particular, of the consumer acquis and its transformative force. A fuller picture, I argued, would include the contours of a developing pragmatic and loosely coherent system of European private law which has the withdrawal rights, unfair terms control, and remedies for non-conformity as its main pillars (for now). That developing system of European private law will have to justified – and can be questioned - in terms not only of its contribution to achieving access justice, but also of its interpersonal justice and democratic legitimacy credentials. 74 European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 – C7-0329/2011 – 2011/0284(COD)). Introduction Silos of regulatory private law or pillars of pragmatic private law? The failure of a grand project: chronicle of a death foretold4F The silos view Regulatory private law The full picture? The pillars view The consumer acquis Pillars of European private law Justice beyond market access Access justice Ensuring market access for the right reasons Civil justice Legitimacy Conclusion 
work_ipdjv6snendojbs2pg44pal2di	----	invalid resource 
work_ipdo6vkdrjbdxfn44umzdch3vy	----	ethicsmath.DVI Optimality Conditions for Distributive Justice J. N. Hooker Carnegie Mellon University john@hooker.tepper.cmu.edu Abstract We analyze utilitarian and Rawlsian criteria for distribution of limited resources by deriving optimality conditions for ap- propriate optimization problems. We assume that some indi- viduals are more productive than others, so that an inequitable distribution of resources creates greater overall utility. We de- rive conditions under which a distribution of wealth (a) max- imizes utility, (b) maximizes a utility function that accounts for the social cost of inequality, and (c) satisfies a lexmax criterion that reflects the Rawlsian difference principle. We show that a utilitarian solution (a) can distribute resources equally only when all individuals have the same marginal pro- ductivity. Equality is possible under (b) in a diverse popula- tion when the cost of inequality is sufficiently large. Equality is possible under the Rawlsian option (c) when no segment of society has a much greater average productivity than the rest. Equality is more likely to be consistent with Rawlsian justice when there are rapidly decreasing returns to greater investment in productivity, when the most productive indi- viduals are not much more productive than the average, and, ironically, when people are more interested in getting rich. 1 Introduction Utilitarianism and the Rawlsian difference principle imply different criteria for distributive justice, but both can be viewed as mathematical optimization problems. Utilitari- anism maximizes a social utility function whose arguments represent wealth distributed to individuals. The Rawlsian difference principle calls for a lexicographic maximum of the utilities allotted to individuals. This suggests that the theory of optimization might provide some insight into the conditions under which a distribution of wealth satisfies a utilitarian or a Rawlsian criterion. In particular, we use classical optimality conditions to an- alyze distributions over nonidentical individuals. This is a departure from most axiomatic treatments of distributive justice, which assume that individuals are indistinguishable (Blackorby, Bossert, & Donaldson 2002). This capability allows us to study one of the perennial issues of distribu- tive justice—the extent to which an efficient distribution of wealth requires inequality. It is sometimes argued that more utility is created when greater shares of wealth are alloted to The author retains the copyright for this article. individuals who are more talented, more productive, or work harder. We use the modeling device of assigning to each individ- ual i a productivity function ui(α) that measures the total utility eventually created when individual i is initially al- loted wealth α. We then find the distribution of initially available wealth that ultimately results in the greatest to- tal utility. We investigate the degree of inequality that is required to maximize utility, and well as conditions under which a completely egalitarian distribution maximizes util- ity. We perform a similar analysis when the calculation of utility accounts for the fact that excessive inequality may disrupt social harmony and ultimately reduce total utility. In particular, we determine when the cost of inequality is high enough so that an egalitarian distribution maximizes utility. The Rawlsian difference principle states roughly that in- equality should be tolerated only when it is necessary and sufficient to result in greater utility for everyone. We follow the common practice of interpreting this as an imperative to find a lexmax distribution. To do so we suppose that indi- viduals have a common utility function v(α) that measures the personal utility that results when an individual is alloted wealth α. We further suppose that the fraction of the total utility that is eventually enjoyed by an individual is propor- tional to the utility of that individual’s initial wealth allo- cation. Thus we view the initial allocation of resources to individuals as assigning social status and privilege. We de- rive conditions under which a distribution of wealth satisfies the lexmax criterion, as well as conditions under which the lexmax distribution is completely egalitarian. 2 Utilitarian Distribution We first formulate the utilitarian problem. Let the utility generated by person i from wealth xi be ui(xi). If the total resource budget is 1, the problem of distributing wealth to maximize utility is max n∑ i=1 ui(xi) (a) n∑ i=1 xi = 1 (b) xi ≥ 0, all i (c) (1) If we associate Lagrange multiplier λ with the constraint (1b), any optimal solution of (1) in which each xi > 0 must satisfy u′i(xi) − λ = 0, i = 1, . . . , n Eliminating λ yields u′1(x1) = · · · = u ′ n(xn) (2) Thus a wealth distribution is optimal only when the marginal productivity of wealth is the same for everyone. Assume that individuals 1, . . ., n are indexed by increas- ing marginal productivity: u′i+1(α) ≥ u ′ i(α) for all α ≥ 0 and i = 1, . . ., n − 1 (3) In this case, (2) is satisfied only if x1 ≤ · · · ≤ xn. Thus the less productive individuals receive less wealth, as one might expect. Furthermore, a utilitarian distribution is completely egalitarian (x1 = · · · = xn = 1/n) only when the marginal productivities are equal: u′1(1/n) = · · · = u ′ n(1/n) To obtain some idea of how skewed the wealth distribu- tion might be, it is helpful to assume a specific form ui(xi) = cix p i (4) for the utility functions, where p ≥ 0 and each ci ≥ 0. Here ci indicates the productivity of person i. When p = 1, per- son i produces utility in proportion to the wealth received. When 0 < p < 1, greater wealth has decreasing marginal utility, and p = 0 indicates inability to use wealth to cre- ate utility. If individuals are indexed in order of marginal productivity, we have that c1 ≤ · · · ≤ cn. Since an optimal solution of (1) in which each xi > 0 must satisfy (1b) and (2), it is xi = c 1 1−p i   n∑ j=1 c 1 1−p j   −1 (5) when 0 ≤ p < 1. When p ≥ 1, it is clear on inspection that an optimal solution sets xn = 1 and xi = 0 for i = 1, . . . , n − 1. Then the optimal distribution is completely unequal when utility generated is proportional to wealth ( p = 1). The most productive member of society receives all the wealth. The distribution becomes increasingly egalitarian as p ap- proaches zero, reaching in the limit a distribution in which each person i receives wealth in proportion to ci. Thus the most egalitarian distribution that is possible in this utilitarian model is one in which people receive wealth in proportion to their productivity. Moreover, this occurs only in the limiting case when the utility generated is independent of the wealth received (p = 0). When 0 < p ≤ 1, a utilitarian distribution can be completely egalitarian (x1 = · · · = xn) only when c1 = · · · = cn. When p > 1, one individual must receive all the wealth even when c1 = · · · = cn. Using this model, more egalitarian distributions are less efficient. In an optimal distribution with 0 ≤ p < 1, the total utility is ( n∑ i=1 c 1 1−p i )1−p (6) In a completely egalitarian distribution, each xj = 1/n, and the total utility is ( 1 n )p n∑ i=1 ci (7) The ratio (7)/(6) indicates the utility cost of an egalitarian distribution. 3 Cost of Inequality The rudimentary utilitarian model above implies that a utili- tarian solution can result in considerable inequity when indi- viduals have different abilities. A classical defense of utili- tarianism, however, is that excessive inequity generates disu- tility by contributing to social disharmony. The model (1) does not account for any such cost of inequality. A more adequate model may result in utilitarian wealth distributions that are more equitable. A simple way to try to capture the cost of inequity is to model it as a proportional to the total range of incomes. The model (1) becomes max n∑ i=1 ui(xi) − β ( max i {xi} − min i {xi} ) n∑ i=1 xi = 1 xi ≥ 0, all i (8) Presumably, a positive cost factor β could result in utilitarian solutions that distribute wealth more equally. It is also inter- esting to derive how large β must be to result in a completely egalitarian distribution. The analysis is easier if we linearize problem (8) using the following lemma. We again assume that individuals are indexed by increasing marginal productivity, as in (3). Lemma 1 If the utility functions ui satisfy (3), and (8) has an optimal solution, then the following problem has the same optimal value as (8): max n∑ i=1 ui(xi) − β(xn − x1) (a) n∑ i=1 xi = 1 (b) xi ≤ xi+1, i = 1, . . . , n − 1 (c) xi ≥ 0, all i (d) (9) Proof. Let x∗ be an optimal solution of (8) with optimal value U ∗. If x∗j > x ∗ k for some j, k with j < k, then create a new solution x1 defined by x1j = x ∗ k, x 1 k = x ∗ j , and x 1 i = x ∗ i for i 6= j, k. If U1 is the objective function value of solution x1 in (8), then U1 = U ∗ + uj(x ∗ k) − uj (x ∗ j ) + uk(x ∗ j ) − uk(x ∗ k) (10) But due to (3), uk(x ∗ j ) − uk(x ∗ k) ≥ uj(x ∗ j ) − uj(x ∗ k) because j < k. This and (10) imply that U1 ≥ U ∗. Now if x1j > x 1 k for some j, k with j < k, create a new solution x2 in the same manner, and observe again that the objec- tive function of (8) does not decrease. Continue with the sequence x1, . . . , xt until xt1 ≤ · · · ≤ xtn. Then xt is feasi- ble in the problem max n∑ i=1 ui(xi) − β ( max i {xi} − min i {xi} ) n∑ i=1 xi = 1 xi ≤ xi+1, i = 1, . . . , n − 1 xi ≥ 0, all i (11) and has an objective function optimal value no less than U ∗. But (11) has an optimal value no greater than U ∗ because it is more highly constrained than (8). Thus (8) and (11) have the same optimal value. But (11) is obviously equivalent to (9), which implies that (8) and (9) have the same optimal value, as claimed. To characterize optimal solutions of (9), we associate La- grange multiplier λ with (9b) and multipliers µ1, . . . , µn−1 with the constraints in (9c). The Karush-Kuhn-Tucker (KKT) optimality conditions imply that x is optimal in (9) only if there are a value of λ and nonnegative values of µ1, . . ., µn−1 such that u′1(x1) + β − λ − µ1 = 0 u′i(xi) − λ + µi−1 − µi = 0, i = 2, . . . , n − 1 u′n(xn) − β − λ + µn−1 = 0 (12) where µi = 0 if xi < xi+1 in the solution. We first examine the case in which each individual re- ceives a different wealth allotment xi. In this case each µi = 0, and we can eliminate λ from (12) to obtain u′2(x2) = · · · = u′n−1(xn−1) u′1(x1) = u ′ 2(x2) − β u′n(xn) = u ′ 2(x2) + β Thus all individuals who are not at the extremes of the distri- bution have equal marginal productivity in a utilitarian dis- tribution, just as they do in the solution of the original model (1). The individual at the bottom of the distribution, how- ever, has marginal productivity that is β smaller than that of those in the middle, while the individual at the top has marginal productivity that is β larger than that of those in the middle. This tends to result in somewhat larger allotment for the individual at the bottom, and a smaller allotment for the one at the top. Since the remaining individuals are forced to lie between these extremes, the net result is a distribution that is less skewed than in the original model. 4 Equality in a Utilitarian Distribution We can also determine what value of β results in a com- pletely egalitarian model. In this case the multipliers µi can be nonzero. Again eliminating λ from the KKT conditions (12), we get 2µ1 − µ2 = d1 µ1 + µi − µi+1 = di, i = 2, . . . n − 2 µ1 + µn−1 = dn−1 (13) where di = u′1(x1) − u ′ i+1(xi+1) + β, i = 1, . . ., n − 1 dn−1 = u′1(x1) − u ′ n(xn) + 2β (14) It can be checked that the following solves (13) µk = k n n−1∑ i=k di − ( 1 − k n )k−1∑ i=1 di (15) for k = 1, . . . , n − 1. Substituting (14) into (15), we get µk = β + ( 1 − k n ) k∑ i=1 u′i(xi) − k n m∑ i=k+1 u′i(xi) (16) for k = 1, . . . , n − 1. We now consider an egalitarian solution, in which each xi = 1/n. Since each µi ≥ 0 in an optimal solution, we obtain the following from (16). Theorem 2 Suppose that individuals are indexed in order of increasing marginal productivity. Then an utilitarian dis- tribution in the model (8) is egalitarian ( x1 = · · · = xn) only if β ≥ k n m∑ i=k+1 u′i(1/n) − ( 1 − k n ) k∑ i=1 u′i(1/n) (17) for k = 1, . . . , n − 1. This may be easier to interpret for the specific productiv- ity functions defined earlier. Corollary 3 If the productivity function ui are given by (4), a utilitarian distribution in the model (8) is egalitarian only if β ≥ p np k(n − k) ( 1 n − k n∑ i=k+1 ci − 1 k k∑ i=1 ci ) for k = 1, . . . , n − 1. Thus to determine the minimum β required to ensure equality, we examine each group of k smallest coefficients c1, . . . , ck. The value of β depends on the difference be- tween the average of these coefficients and the average of the remaining coefficients. Thus if there is a group of individ- uals who are much less productive on the average than the remaining individuals, relative to the overall range of pro- ductivities, a larger β is required to ensure inequality. This could occur in a two-class society with a relatively homoge- neous underclass and relatively homogenous elites, for ex- ample. 5 Rawlsian Distribution A lexmax (lexicographic maximum) model can be used to represent a wealth distribution that satisfies the Rawlsian difference principle. As before we let ui(xi) be the social utility generated by a person i who initially receives wealth xi. We also suppose that the fraction of total utility received by person i is proportion to the personal utility v(xi) of per- son i’s initial wealth allocation. Thus everyone has the same personal utility function, even though different people may have different productivity functions. If yi is the utility enjoyed by person i, any solution of the following problem is a Rawlsian distribution: lexmax y (a) yi y1 = v(xi) v(x1) , i = 2, . . . , n (b) n∑ i=1 yi = n∑ i=1 ui(xi) (c) n∑ i=1 xi = 1 (d) xi ≥ 0, i = 1, . . . , n (e) (18) where y = (y1, . . . , yn). By definition, y∗ solves (18) if and only if y∗i solves problems L1, . . . , Ln, where Lk is the problem max min {yk, . . . , yn} (y1, . . ., yk−1) = (y∗1 , . . ., y ∗ k−1) (18b)–(18e) (19) The lexmax solution is frequently defined with respect to a particular ordering y1, . . . , yn of the variables, in which case L1 maximizes yk rather than min{yk, . . ., yn}. This is inappropriate for the Rawlsian problem because we do not know in advance how the solution values y∗k will rank in size. Suppose, however, that persons 1, . . . , n are indexed by increasing marginal productivity as in (3). Then we can assume without loss of generality that persons with less marginal productivity are nearer the bottom of the distribu- tion. Lemma 4 Suppose that (3) holds and that v(α) is monotone nondecreasing for α ≥ 0. Then if (18) has a solution, it has a solution in which y1 ≤ · · · ≤ yn. Proof. Since v is monotone, it suffices to show that (18) has a solution (x̄, ȳ) in which x̄1 ≤ · · · ≤ x̄n. For this it suffices to exhibit a solution (x̄, ȳ) that solves Lk for k = 1, . . . , n and for which x̄1 ≤ · · · ≤ x̄n. Let (x∗, y∗) be a solution of (18), and let (x0, y0) = (x∗, y∗). If x01 ≤ x 0 i for i = 2, . . . , n, then x 0 solves L1 and we let x1 = x0. Otherwise we suppose x0k = mini{x 0 i } and define x1 by x11 = x 0 k, x 1 k = x 0 1, and x 1 i = x 0 i for i 6= 1, k. We define y1 to satisfy (18b)-(18c). We can see as follows that (x1, y1) solves L1. If U0 = ∑ i ui(xi) is the total utility for solution (x0, y0), then the total utility for solution (x1, y1) is U1 = U0 + uk(x 0 1) − uk(x 0 k) + u1(x 0 k) − u1(x 0 1) But we have from (3) that uk(x 0 1) − u1(x 0 k) ≥ u1(x 0 1) − u1(x 0 k) Thus U1 ≥ U0, and x1 generates no less total utility than x0. Since utility is allotted to the y1i s in proportion to v(x 1 i ), and v is monotone nonincreasing, we get y11 ≤ y01. Thus (x1, y1) solves L1. Now if x11 ≤ x 1 i for i = 2, . . . , n, then (x 1, y1) solves L1, L2 and we let (x2, y2) = (x1, y1). Otherwise we sup- pose x1k = mini≥2{x 1 i } and define x 2 by x21 = x 1 k , x 2 k = x 1 1, and x2i = x 1 i for i > 2 and i 6= k. We can show as above that (x2, y2) solves L1, L2. In this fashion we construct the sequence (x1, y1), . . . , (xn, yn) and let (x̄, ȳ) = (xn, yn). By construction, x̄1 ≤ · · · ≤ x̄n. Since (x̄, ȳ) solves L1, . . . , Ln, it solves (18). To analyze solutions of (18), it is convenient to eliminate the variables yi from each Lk . Using constraints (18b)– (18c), we get yi = v(xi) n∑ i=1 ui(xi) n∑ i=1 v(xi) , i = 1, . . ., n Using Lemma 4, Lk can be written max v(xk) n∑ i=1 ui(xi) n∑ i=1 v(xi) (a) (x1, . . . , xk−1) = (x∗1, . . ., x ∗ k−1) (b) n∑ i=1 xi = 1 (c) xk ≤ · · · ≤ xn (d) xk ≥ 0 (e) (20) where x∗1, . . . , x ∗ k−1 are previously computed solutions of L1, . . . , Lk−1, respectively. We focus first on L1. Associating Lagrange multipliers µ1, . . . , µn−1 with the constraints in (20d), the KKT opti- mality conditions imply that a solution x with each xi > 0 is optimal in (20) only if there are nonnegative values of µ1, . . . , µn−1 such that v′(x1) Σu Σv + v(x1) u′1(x1)Σv − v′(x1)Σu (Σv)2 − λ − µ1 = 0 v(x1) u′i(xi)Σv − v′(xi)Σu (Σv)2 − λ + µi−1 − µi = 0, i = 2, . . . , n − 1 v(x1) u′n(xn)Σv − v′(xn)Σu (Σv)2 − λ + µn−1 = 0 (21) where Σu = n∑ i=1 ciui(xi), Σv = n∑ i=1 v(xi) and where µi = 0 if xi < xi+1 in the solution. We begin by examining the case in which each individual receives a different allotment xi. Here each µi = 0, and (21) implies v′(x1) v(x1) + u′1(x1) Σu − v′1(x1) Σv = u′i(xi) Σu − v′i(xi) Σv for i = 1, . . . , n−1, assuming v(x1) > 0. This says that the marginal difference between productivity and personal util- ity is the same for everyone except the lowest ranked indi- vidual, for whom the difference is somewhat less. This tends to increase the allotment to the lowest individual, reducing the gap between this person and the others. The optimal- ity conditions for L2 are similar and likewise move the sec- ond closest individual closer to those who are more highly ranked. Thus in general, the lexmax solution results in a distribution that is more egalitarian than one in which the marginal difference between productivity and personal util- ity is the same for everyone. 6 Equality in a Rawlsian Distribution We now examine conditions under which a Rawlsian dis- tribution can be egalitarian. We found earlier that a util- itarian distribution with utility functions ui(xi) = cix p i , v(xi) = x q i cannot be egalitarian unless individuals are iden- tical in their productivity. We will show that a Rawlsian dis- tribution can, under certain conditions, be egalitarian in a more diverse population. In an egalitarian distribution any µi can be nonzero. We eliminate λ from the optimality conditions (21) for L1 to obtain v′(x1) v(x1) + u′1(x1) Σu − v′(x1) Σv − 1 v(x1) Σv Σu µ1 = u′i(xi) Σu − v′(xi) Σv + 1 v(x1) Σv Σu (µi−1 − µi) (22) ‘ for i = 2, . . ., n − 1, and v′(x1) v(x1) + u′1(x1) Σu − v′(x1) Σv − 1 v(x1) Σv Σu µ1 = u′n(xn) Σu − v′(xn) Σv + 1 v(x1) Σv Σu µn−1 (23) This yields the following. Theorem 5 Suppose the productivity functions are given by ui(α) = ciαp and the utility function by v(α) = αq. Then L1 has an egalitarian solution ( x1 = · · · = xn) only if 1 k k∑ i=1 ci ≥ 1 n − k n∑ i=k+1 ci − q p · n − k k n∑ i=1 ci (24) or equivalently, 1 k k∑ i=1 ( 1 + q p · n − k k ) ci ≥ 1 n − k n∑ i=k+1 ( 1 − q p · n − k k ) ci (25) for k = 1, . . . , n − 1. Proof. The equations (22)–(23) can be written as (13) where di = v(x1) Σu Σv ( v′(x1) v(x1) − u′i+1(xi+1) − u′1(x1) Σu + v′(xi+1) − v′(x1) Σv ) for i = 1, . . . , n − 1. Substituting x1 = · · · = xn = 1/n and the functions ui, v as given above, we obtain di = qn −p n∑ j=1 cj − pn−p (ci+1 − c1) (26) Since (15) solves (13), we can substitute (26) into (15) and get µk = p k(n − k) n1+p ( q pk n∑ i=1 ci + 1 k k∑ i=1 ci − 1 n − k n∑ i=k+1 ci ) for k = 1, . . ., n − 1. The KKT conditions imply that xk = · · · = xn = 1/n can be an optimal solution only if µk ≥ 0 for k = 1, . . . , n − 1, which implies (24). An egalitarian solution (x1 = · · · = xn) solves L1 if and only if it solves the lexmax problem (18). If it solves L1, then a lexmax solution must have x1 = 1/n, which implies by (18d) that x2 = · · · = xn = 1/n. If an egalitarian solution does not solve L1, then some distribution with x1 < 1/n solves L1, which implies that x1 < 1/n in any lexmax solution. Thus we have Corollary 6 If the productivity functions are given by ui(α) = ciαp and the utility function by v(α) = αq, then a lexmax distribution is egalitarian ( x1 = · · · = xn) only if (24) and (25) hold. Thus a Rawlsian distribution is completely egalitarian when the gap between the average productivity of the k least productive individuals and that of the remaining population is not too great for any k. The maximum gap is proportional to q/p and (n − k)/k. This means that a smaller gap is re- quired when the marginal utility of wealth decreases rapidly with the level of wealth (q is small), and when the opposite is true of marginal productivity ( p is large). Thus an inegal- itarian distribution is more likely when individuals do not care very much about getting rich and are satisfied with a moderate level of prosperity. Inequality is also more likely when allocating greater advantages to talented or industrious people reaps consistently greater rewards. An egalitarian distribution also requires a smaller produc- tivity gap between the highest class and the remaining pop- ulation (i.e., when k = n−1 ) than between the lowest class and the remaining population ( k = 1). Thus if the distribu- tion of talents and industry has a long tail at the upper end, as is commonly supposed, the condition for equality could be hard to meet. 7 Conclusion We find that a utilitarian distribution of wealth can result in substantial inequality when some individuals are more pro- ductive than others. The distribution is completely egali- tarian only when every individual has the same marginal productivity. When marginal productivities are unequal, the most egalitarian distribution that is possible is one in which individuals are allocated wealth in proportion to their marginal productivity, and this occurs only when there are rapidly decreasing marginal returns for greater allocations of wealth. A more egalitarian distribution results when the utility function includes a penalty to account for social dysfunc- tion that inequality may cause. In particular, if the penalty is proportional to the gap between the richest and poorest individuals, we can calculate a constant of proportionality that results in a completely egalitarian distribution. This constant tends to be larger when there is large gap in av- erage productivity between two segments of society. That is, there a group of individuals that have a much smaller average marginal productivity than the remaining individu- als, relative to the overal range of productivities. This may occur, for example, when elites and common people form fairly homogenous groups separated by a large gap in aver- age productivity. Finally, the Rawlsian difference principle can result in a completely egalitarian distribution when no two segments of society have a large gap in average productivity. Equality is more likely to occur when there are decreasing returns for placing greater investment in talented and industrious people. Somewhat surprisingly, equality is also more likely when people are nearly as concerned about getting rich as about living a minimally comfortable lifestyle. When people want riches more, a privileged class is less likely to be con- sistent with Rawlsian justice. Finally, equality is more likely when the most talented and industrious individuals are not much more productive than the average person, even though the least productive individuals may fall far below the mean. References Blackorby, C.; Bossert, W.; and Donaldson, D. 2002. Util- itarianism and the theory of justice. In Arrow, K.; Sen, A.; and Suzumura, K., eds., Handbook of Social Choice and Welfare, Vol. 1, volume 19 of Handbooks in Economics. Amsterdam: Elsevier. 543–596. Bouveret, S., and Lemaitre. 2006. Finding leximin-optimal solutions using constraint programming: New algorithms and their application to combinatorial auctions. In Endriss, U., and Lang, J., eds., 1st International Workshop on Com- putational Social Choice . Isermann, H. 1982. Linear lexicographic optimization. OR Spektrum 123:223–228. 
work_ipr47rpk6jdfdhcr5ftvl664wq	----	In 2007/08 the crime most commonly recorded by police in England and Wales (36 per cent) and Scotland (33 per cent) was theft and handling stolen goods. In Northern Ireland it was criminal damage (28 per cent). (Table 9.1) Between 2006/07 and 2007/08 there was a 10 per cent decrease in the incidence of crime measured by the British Crime Survey (BCS) in England and Wales, from 11.3 million to 10.1 million crimes. (Figure 9.2) Violent crime, which comprises assault with or without injury, wounding and robbery, accounted for one-fifth (2.2 million incidents) of all BCS crime in England and Wales in 2007/08. (Table 9.3) In 2006, 26 per cent of ten to 25-year-olds in England and Wales were victims of personal crime in the last 12 months, including robbery, personal theft and assault (either with or without injury). (Table 9.4) In 2007/08 there were 17,300 crimes reported to the police in England and Wales in which a firearm was used, a 6 per cent decrease from 2006/07. (Figure 9.7) Of offenders aged 18 and over leaving prison or starting a community sentence in England and Wales in the first quarter of 2006, 39 per cent reoffended within one year, the lowest reoffending rate since the series began. (Page 136) C h ap ter 9 Download data by clicking the online pdf www.statistics.gov.uk/ socialtrends39 Crime and justice Chapter 9: Crime and justice Social Trends 39: 2009 edition 128 9 Crime can affect anyone, regardless of whether or not they have been a victim. In addition to suffering or loss resulting directly from crime, people may be affected by their perceptions of changing crime levels and their fear of crime may affect the way they live their daily lives. Dealing with crime and associated problems is an ever-present concern for society and the Government. There are two main sources of crime statistics: police-recorded crime and household population surveys of crime (see Measures of crime text box). Crime levels This chapter discusses both the incidence and prevalence of crime (see Appendix, Part 9: Prevalence rates and incidence rates). The incidence of crime, defined as the number of crimes that have taken place, is analysed in this section. The prevalence of crime, or the proportion of people who were victims, is covered in the Offences and victims section later in the chapter. Following the introduction of the National Crime Recording Standard (NCRS) in England and Wales in 2002 (see Appendix, Part 9: National Crime Recording Standard) there was an overall increase in the number of crimes recorded by the police that year, with less serious crimes, including criminal damage, minor theft and assault without injury, increasing the most. The introduction of the Scottish Crime Recording Standard (SCRS) in April 2004 resulted in similar increases in the number of less serious crimes recorded by the police in Scotland. In 2007/08 around 5.5 million crimes were recorded by the police across the UK (Table 9.1). Nearly three-quarters (72 per cent) of recorded crimes in England and Wales were property crimes; these include theft and handling stolen goods, burglary, criminal damage, and fraud and forgery. Violence against the person accounted for around one-fifth (19 per cent) of all recorded crime in England and Wales, the same proportion as in 2006/07. Measures of crime There are two main measures of the extent of crime in the UK: surveys of the public, and crime recorded by the police. The British Crime Survey (BCS) interviews adults aged 16 and over who are living in private households in England and Wales. The Scottish Crime and Victimisation Survey (SCVS) and the Northern Ireland Crime Survey (NICS) interview adults aged 16 and over in Scotland and Northern Ireland respectively. In some ways the BCS, the SCVS and the NICS give a better measure of many types of crime than police- recorded crime statistics. These surveys show the large number of offences that are not reported to the police and also give a more reliable picture of trends, as they are not affected by changes in levels of reporting to the police or by variations in police recording practice (see Appendix, Part 9: Types of offence in England and Wales, in Scotland, and in Northern Ireland). Recorded crime data cover offences reported to and recorded by the police. The National Crime Recording Standard (NCRS), introduced in England and Wales in 2002 and the Scottish Crime Recording Standard (SCRS), introduced in 2004, were implemented with the aim of taking a more victim-centred approach and providing consistency between police forces (see Appendix, Part 9: National Crime Recording Standard). Police-recorded crime and survey-measured crime have different coverage. Unlike crime data recorded by the police, surveys are generally restricted to crimes against adults living in private households and their property and do not include some types of crime (for example, fraud, murder and victimless crimes such as drug use, where there is not a direct victim). See also Appendix, Part 9: Availability and comparability of data from constituent countries. Table 9.1 Crimes recorded by the police: by type of offence,1 2007/08 United Kingdom Percentages England & Wales Scotland Northern Ireland Theft and handling stolen goods 36 33 23 Theft from vehicles 9 4 3 Theft of vehicles 3 3 3 Criminal damage 21 31 28 Violence against the person2 19 3 27 Burglary 12 7 11 Drugs offences 5 11 3 Fraud and forgery 3 2 3 Robbery 2 1 1 Sexual offences 1 1 2 Other offences3 1 12 3 All notifiable offences (=100%) (thousands) 4,951 386 108 1 See Appendix, Part 9: Types of offence in England and Wales, in Scotland, and in Northern Ireland, and Availability and comparability of data from constituent countries. 2 Data for Scotland are serious assaults only. Those for England and Wales and Northern Ireland are all assaults including those that cause no physical injury. 3 Northern Ireland includes ‘offences against the state’. Scotland excludes ‘offending while on bail’. Source: Home Office; Scottish Government; Police Service of Northern Ireland Social Trends 39: 2009 edition Chapter 9: Crime and justice 129 9 The definition of crime in Northern Ireland is broadly comparable with that used in England and Wales. In 2007/08 the police in Northern Ireland recorded 108,000 crimes, nearly two-thirds (65 per cent) of which were property crimes. More than one-quarter (27 per cent) of recorded crime in Northern Ireland involved violence against the person, again showing little change from 2006/07. In Scotland the term ‘crime’ is reserved for the more serious offences, broadly equivalent to ‘indictable’ and ‘triable-either- way’ offences in England and Wales, while less serious crimes are called ‘offences’ (see Appendix, Part 9: Availability and comparability of data from constituent countries). In 2007/08, 386,000 crimes were recorded by the police in Scotland. The most common recorded crime in Scotland was theft and handling stolen goods (33 per cent), followed by criminal damage (31 per cent), unchanged from 2006/07. The number of crimes recorded by the police tends to be lower than that reported by household surveys, largely because survey respondents identify a large number of offences that have not been reported to the police. Based on the 2007/08 British Crime Survey (BCS), 42 per cent of incidents of BCS comparable crime in England and Wales, that is crimes where BCS data can be directly compared with police statistics (see Appendix, Part 9: Comparable crimes), were reported to the police, or became known to the police by some other means. Victims gave a variety of reasons for not reporting crime to the police, with the most common being that they felt the crime was too trivial, there was no loss or that in their view the police would not, or could not, do anything about it. The incidence of crime estimated by the BCS in England and Wales rose steadily throughout the 1980s and early 1990s and peaked in 1995, at 19.4 million offences. There was then a steady decline and the level remained relatively stable between 2004/05 and 2006/07. However, between 2006/07 and 2007/08 there was a 10 per cent decrease in the incidence of BCS crime, from 11.3 million to 10.1 million crimes and the level of crime in 2007/08 was almost one-half the level in the peak year of 1995 (Figure 9.2). The Northern Ireland Crime Survey (NICS) estimated that 199,000 crimes were committed against adults living in private households in the 12 months prior to interview in 2007/08. This was an increase from 195,000 crimes identified in 2006/07, but still much lower than the 295,000 identified in the 2003/04 NICS. Because there was no Scottish Crime and Victimisation Survey (SCVS) in 2007, the most recent available data for Scotland are for 2005/06. The survey estimated that around 1.1 million crimes were committed against adults in private households in the 12 months prior to interview in 2005/06, an increase from 900,000 in 2003/04. The incidence of SCVS crime in 2005/06 was at the same level it was in 1992. Of the 10.1 million crimes reported by the BCS in England and Wales in 2007/08, almost two-thirds (6.4 million) were household crimes and more than one-third (3.7 million) were personal crimes (Table 9.3 overleaf). There was an overall reduction in the incidence of both types of crime reported in 2007/08. The most common crime reported, accounting for more than one-quarter of all BCS crime, was vandalism, with an estimated 2.7 million incidents experienced in the 12 months prior to interview. This was the most commonly experienced household crime each year since 2001/02, but during the 1990s vehicle theft was the most common, ranging from 3.5 million to 4.4 million crimes. Violent crime, which comprises assault with or without injury, wounding and robbery, accounted for one-fifth (2.2 million incidents) of all BCS crime reported in 2007/08. Offences and victims The likelihood of being a victim of crime varies according to where you live. The highest levels of household crime in England and Wales according to the 2007/08 British Crime Survey (BCS), including theft of, or from, vehicles, bicycle theft, household theft, burglary, and vandalism, were experienced by those living in Yorkshire and the Humber where one-fifth (20 per cent) of households reported being a victim once or more in the 12 months prior to interview. The North East Figure 9.2 British Crime Survey offences1 England & Wales Millions 0 5 10 15 20 1993 1995 1997 1999 2001/02 2003/04 2005/06 2006/07 2007/08 1 Until 2000, respondents were asked to recall their experience of crime in the previous calendar year. From 2001/02 onwards the British Crime Survey became a continuous survey and the recall period was changed to the 12 months prior to interview. Source: British Crime Survey, Home Office Chapter 9: Crime and justice Social Trends 39: 2009 edition 130 9 (19 per cent) and the North West (18 per cent) had the next highest incidence of household crime. The lowest incidence was reported by those living in the South West (14 per cent). There are also differences in the characteristics of those households more at risk and this varies by the type of crime. For example, households with no security measures were more than ten times as likely than average to be victims of burglary according to the 2007/08 BCS, and households headed by someone aged 16 to 24 were three times more likely than average to be burgled. The highest rate of personal crime, including assault, sexual offences, robbery, theft from the person and other personal theft, was experienced by those living in London, with 8 per cent having been victims in the 12 months prior to interview. The areas with the lowest risk of personal crime were Wales and the South West, at 5 per cent each. Risk of personal crime also varied according to the characteristics of the victim. Men and women aged 16 to 24 were more likely to have experienced a violent offence than those in any other age group. The risk for young men was more than double that for young women (13 per cent compared with 6 per cent) and although the difference declined with age, men of all ages were more likely than women to have experienced a violent offence. The risk of being a victim of violence had decreased to less than 1 per cent by the age of 55 for women and age 65 for men. The incidence of personal crime continues to be high among young people aged under 26. The 2006 Offending, Crime and Justice Survey (OCJS) reported that 12 per cent of ten to 25-year-olds had experienced at least one incident of personal theft in England and Wales in the 12 months prior to interview (Table 9.4). More than one-quarter (26 per cent) were victims of some kind of personal crime over the same period, including robbery, personal theft and assault (either with or without injury). Young males were more likely than young females to be victims of a personal crime within the last 12 months (31 per cent compared with 21 per cent). The difference was most pronounced among ten to 15-year-olds; nearly two-fifths (38 per cent) of boys of this age group were victims compared with around one-fifth (22 per cent) of girls. Table 9.3 Incidents of crime: by type of offence1 England & Wales Millions 1981 1991 1995 2001/02 2005/06 2006/07 2007/08 Household crime Vandalism 2.7 2.8 3.4 2.6 2.7 2.9 2.7 All vehicle-related theft2 1.8 3.8 4.4 2.5 1.7 1.7 1.5 Burglary 0.7 1.4 1.8 1.0 0.7 0.7 0.7 Bicycle theft 0.2 0.6 0.7 0.4 0.4 0.5 0.4 Other household theft3 1.5 1.9 2.3 1.4 1.2 1.2 1.1 All household crime 6.9 10.4 12.4 7.9 6.8 7.1 6.4 Personal crime Theft from the person 0.4 0.4 0.7 0.6 0.6 0.6 0.6 Other thefts of personal property 1.6 1.7 2.1 1.4 1.2 1.1 1.0 All BCS violence 2.1 2.6 4.2 2.7 2.3 2.5 2.2 Assault with minor injury 0.6 0.8 1.4 0.7 0.6 0.6 0.5 Assault with no injury 0.8 1.0 1.6 1.0 0.9 1.0 0.9 Wounding 0.5 0.6 0.9 0.6 0.5 0.6 0.5 Robbery 0.2 0.2 0.3 0.4 0.3 0.3 0.3 All personal crime 4.1 4.7 6.9 4.7 4.1 4.2 3.7 All crimes reported to BCS 11.0 15.1 19.4 12.6 10.9 11.3 10.1 1 Until 2000 respondents were asked to recall their experience of crime in the previous calendar year. From 2001/02 onwards the British Crime Survey (BCS) became a continuous survey and the recall period was changed to the 12 months prior to interview. 2 Includes theft of, or from, a vehicle, as well as attempts. 3 Includes thefts and attempted thefts from domestic garages, outhouses and sheds, not directly linked to the dwelling, as well as thefts from both inside and outside a dwelling. Source: British Crime Survey, Home Office Social Trends 39: 2009 edition Chapter 9: Crime and justice 131 9 According to the 2006 OCJS, the most common type of personal crime among ten to 25-year-olds was assault, at 17 per cent, with 11 per cent of young people being victims of assault without injury and 9 per cent victims of assault with injury. Males aged ten to 25 had the highest victimisation rates for these crimes, at 14 per cent and 12 per cent respectively, around double the rates for females (8 per cent and 6 per cent respectively). While the definition of personal victimisation in the survey is broadly consistent with the BCS, the questions are adjusted to make them suitable for the younger respondents, and are asked in a different context, so it is not possible to draw direct comparisons between the OCJS and BCS measures of victimisation. The 2006/07 BCS showed that in England and Wales, 2 per cent of individual mobile phone owners had their mobile stolen in the last 12 months, the same proportion as in 2005/06. Mobile phone theft varied by age of the victim with children aged 12 to 15 and young adults aged 16 to 24 being the most likely to experience mobile phone theft in the last 12 months, around 5 per cent of each group of owners (Figure 9.5). Around 2 per cent of adults aged between 25 and 44 had their mobile stolen in the last 12 months. The 2006/07 BCS asked adults aged 16 and over who had personally experienced a theft (therefore excluding other household members and children) about the circumstances of the theft. Nearly one-quarter (24 per cent) reported that the theft had taken place while the victim was on public transport or in another public place, such as a shop or hospital. A further 22 per cent had their phone stolen from a bar, pub or club. The 2007/08 BCS asked victims of violent incidents (including wounding, assault with minor injury, assault with no injury and robbery) whether they believed the offender to have been under the influence of alcohol or drugs (except in incidents where the victim perceived the offender to be under school-leaving age or could not describe the offender). More than two-fifths (45 per cent) of victims of violent offences believed the offender to be under the influence of alcohol. Table 9.4 Young people who were victims of personal crime:1 by age and sex, 2006 England & Wales Percentages Males Females All aged 10–2510–15 16–25 All 10–15 16–25 All Any personal thefts 17 11 13 8 11 10 12 Robbery 2 3 2 1 1 1 2 Theft from the person 7 5 5 3 5 4 5 Other personal thefts 11 6 8 5 7 6 7 Any assault 28 18 22 15 11 12 17 Assault (no injury) 21 10 14 11 7 8 11 Assault (with injury) 14 11 12 7 5 6 9 Any personal crime 38 27 31 22 20 21 26 1 In the 12 months prior to interview. Source: Offending, Crime and Justice Survey, Home Office Figure 9.5 Mobile phone owners experiencing theft:1 by age, 2006/07 England & Wales Percentages 1 Based on the number of people who experienced theft of at least one mobile phone in the last 12 months. Does not reflect the number of phones stolen. Source: British Crime Survey, Home Office 0 1 2 3 4 5 12–158–11 16–24 25–34 35–44 45–54 55–64 65–74 75 and over Chapter 9: Crime and justice Social Trends 39: 2009 edition 132 9 Violence committed by a stranger was the most common type of incident in which victims believed the offender was under the influence of alcohol (58 per cent) followed by violent incidents committed by an acquaintance (48 per cent) (Table 9.6). The most common type of offence was assault with minor injury, with around three-fifths (61 per cent) of victims seeing alcohol as a contributing factor. It is harder for victims to identify whether the perpetrator of their violent incident was under the influence of drugs but this too was most commonly identified in incidents of assault with minor injury (24 per cent). The introduction of The Licensing Act 2003 in November 2005 abolished set licensing hours in England and Wales with the aim of passing responsibility for licensing from the magistrates’ courts to local authorities. Although this led to some concerns about introducing a ’24-hour drinking culture’, the aim was to reduce the problems of heavy drinking and disorder associated with a standard closing time and, over the longer term, encourage a more relaxed drinking culture. The Home Office evaluation of the impact of the Act on crime and disorder found that there was little evidence to support concerns about increased violence. Comparing the 12 months before and after implementation, a survey of 30 police forces showed falls in the number of recorded incidents involving violence, criminal damage and harassment (1 per cent) and in serious violent crimes (5 per cent). However, the timing of these incidents changed with a small rise in the number of incidents between 6 pm and 6 am and a 25 per cent increase in the number of offences committed between 3 am and 6 am. In addition, the BCS Night Time Economy Module shows that there was no significant change following the introduction of the Act in the proportion of people who said they felt unsafe in town centres at night, or who had witnessed drunken anti-social behaviour in town centres. The 2007/08 BCS estimated that there were nearly 2.2 million violent incidents against adults in England and Wales, a decrease of 12 per cent since 2006/07 (see Table 9.3). Weapons were used in nearly one-quarter (24 per cent) of all violent incidents, the same proportion as in 2006/07. This proportion has remained stable over the last decade. Weapons were most commonly used in offences of robbery, wounding, and assault with no injury, with around one-quarter of these incidents each involving the use of some kind of weapon (23 per cent, 26 per cent and 27 per cent respectively). Hitting implements (including sticks and clubs) and knives were the most common weapons used in violent incidents reported in the 2007/08 BCS (used in 7 per cent and 6 per cent of incidents respectively). A knife was used in 15 per cent of robberies and 8 per cent of woundings. Nearly one-half (49 per cent) of victims of violent incidents in 2007/08 sustained a physical injury. In 2007/08 around one-fifth (19 per cent) of police-recorded serious offences in England and Wales, including attempted murder, wounding with intent to do grievous bodily harm (GBH), wounding or inflicting GBH (without intent) and robbery (of business or personal property) involved a knife or sharp instrument. In 2007/08 there were 17,343 crimes reported to the police in England and Wales in which a firearm was used, a 6 per cent decrease from 18,481 offences in 2006/07. The number of offences involving a firearm increased every year from 1998/99 (13,874 offences) to peak in 2002/03 and 2003/04 at around 24,000 offences. The number of firearm offences then began to decline and the decrease in 2007/08 was the fourth consecutive fall since 2003/04. Air weapons were reported to have been used in 7,478 offences in 2007/08, a decrease from 8,836 in 2006/07 (Figure 9.7), and accounted for more than two-fifths (43 per cent) of all firearm offences. However, offences involving a firearm excluding air weapons increased by 2 per cent between 2006/07 and 2007/08; from 9,645 to 9,865 offences. Handguns were the most common type of Table 9.6 Proportion of violent incidents where the offender was perceived to be under the influence of alcohol or drugs,1,2 2007/08 England & Wales Percentages Alcohol Drugs Yes No Yes No Type of violence Domestic 37 61 12 82 Mugging 17 63 13 58 Stranger 58 28 14 47 Acquaintance 48 46 28 51 Type of offence Wounding 48 42 15 60 Robbery 19 63 14 58 Assault with minor injury 61 32 24 49 Assault with no injury 44 47 20 56 All violence 45 45 19 56 1 Percentages do not sum to 100 per cent as victims could answer ‘don’t know’. 2 Question not asked if offenders were perceived to be of school age. Source: British Crime Survey, Home Office Social Trends 39: 2009 edition Chapter 9: Crime and justice 133 9 non-air weapon used, and were involved in more than two-fifths (42 per cent) of all non-air weapon firearm offences in 2007/08. Firearms are defined as having been involved in an incident if they have been discharged (fired), used as a blunt instrument against a person, or used as a threat. In 2007/08 more than nine in ten (92 per cent) air weapons involved in incidents were fired compared with around three-quarters (73 per cent) of imitation firearms, around one-half (53 per cent) of rifles, unidentified and ‘other’ weapons, and more than one-third (37 per cent) of shotguns. Handguns were the least likely to be fired with only 10 per cent of handguns involved in incidents being fired. However, handguns that were fired were the most likely firearm to result in a fatal or serious injury (36 per cent) compared with 1 per cent as a result of discharged air weapons. In Scotland in 2007/08 there were 1,125 firearm offences recorded by the police. More than one-half (576) involved air weapons (including air guns, air pistols, air rifles and BB guns). The proportion of crimes involving a firearm has decreased by 11 per cent since 2006/07 and those involving air weapons has decreased by 17 per cent. In Northern Ireland there were 544 crimes reported to the police in 2007/08 in which a firearm was used, a 9 per cent decrease compared with 2006/07. Between 2005/06 and 2006/07 there was a 35 per cent decrease. While crimes involving firearms excluding air weapons decreased by 12 per cent, those involving air weapons decreased by 2 per cent between 2006/07 and 2007/08. The risk of being a victim of homicide (which includes the offences of murder, manslaughter and infanticide) continues to be low in England and Wales. In 2007/08 there were 763 offences recorded, a 3 per cent increase on the number recorded in 2006/07 and a rate of 14.1 per million population. Homicide figures are based on the year they are recorded by the police and not the year they occur so trend data should be treated with caution (see Appendix, Part 9: Homicides). However, over the last ten years the homicide rate has remained relatively stable, between 13 and 15 per million population, apart from an increase in 2002/03 to 18 per million population. This increase resulted from 172 homicides attributed to Harold Shipman which, although took place over a number of years, were recorded in 2002/03 following Dame Janet Smith’s inquiry. Males are more at risk of homicide than females; around three-quarters (73 per cent) of all homicide victims were male in 2007/08. The risk was highest for men aged 16 to 20, at 45 per million population (Figure 9.8). This is a change from 2006/07 where men aged 21 to 29 had the highest risk of homicide, at 42 per million population compared with 29 per million for those aged 16 to 20. For females the highest risk of homicide in 2007/08 was for infants under one year old, at 30 per million population. The homicide rate for males was higher than that for females at all ages apart from those aged 70 and over when the rate was slightly lower. Figure 9.7 Crimes1 reported to the police in which a firearm had been used England & Wales Thousands 1 Changes in counting offences were made in April 1998 and the National Crime Recording Standard was implemented in April 2002. See Appendix, Part 9: National Crime Recording Standard. Source: Home Office 0 5 10 15 20 25 All weapons All weapons excluding air weapons Air weapons 1998/99 2001/02 2004/05 2007/08 Figure 9.8 Offences recorded as homicide:1 by sex and age of victim, 2007/08 England & Wales Rates per million population 1 Offences currently recorded as homicide as at 4 November 2008. Figures are subject to revision as cases are dealt with by the police or courts, or as further information comes to light. See Appendix, Part 9: Homicides. Source: Home Office 0 10 20 30 40 50 50–6930–4921–2916–2011–155–101–4Under 1 70 and over Males Females Chapter 9: Crime and justice Social Trends 39: 2009 edition 134 9 In 2007/08 more than one-third (35 per cent) of all homicide victims were apparently killed by sharp instruments. This was the most common method of killing for both male and female victims with 212 and 58 offences respectively. For males the second most common method was ‘hitting and kicking, etc.’ (140 offences) but for females it was strangulation, including asphyxiation (41 offences). In Scotland there were 114 offences currently recorded as homicide in 2007/08, a rate of 22 per million population. Around four-fifths (79 per cent) of the victims were male. People aged 16 to 30 were at the highest risk, with a rate of 38 homicides per million population overall, and men were again particularly at risk, at 64 per million population in this age group. However, as in England and Wales, the number of homicides in Scotland was very small and these offences accounted for 0.1 per cent of all violent crime (which includes homicide, attempted murder, sexual assault, abduction, serious assault, minor assault and robbery). In Northern Ireland there were 24 offences currently recorded as homicide in 2006/07, a rate of 14 per million population, the same as for England and Wales. Most of the victims (19) were men and the homicide rate was highest among men aged 30 to 49 years old with 11 of the male victims in this age group. Perceptions of crime The 2007/08 BCS reported that despite a decrease in the incidence of crime in England and Wales, almost two-thirds (65 per cent) of people perceived there to be more crime (either ‘a lot more’ or ‘a little more’) than two years ago in the country as a whole. This perception was unchanged since 2006/07 (Table 9.9). More than one-third (35 per cent) of respondents perceived that crime had increased a lot in the country as a whole. People were more positive about their local area, with 39 per cent perceiving there was either a little or a lot more crime than two years ago. The proportion of people perceiving more crime in the country as a whole has remained fairly stable since 2003/04, but the proportion perceiving more crime in their local area has decreased from 54 per cent in 2002/03. The Northern Ireland Crime Survey (NICS) showed that the proportions of people in Northern Ireland perceiving more crime in the country as a whole and in their local area were similar to those for England and Wales in 2007/08. However, both these proportions had decreased compared with 2006/07, from 73 per cent to 65 per cent for the whole country and from 44 per cent to 39 per cent for crime in the local area. Respondents to these crime surveys were asked how likely they thought they were to be victims of particular crimes in the 12 months following their interview. According to the 2007/08 BCS, 14 per cent of people in England and Wales thought they were likely (either ‘very likely’ or ‘fairly likely’) to be victims of burglary or violent crime and 23 per cent of car owners thought they were likely to be victims of vehicle crime. However, in the same year the actual incidence of these crimes reported to the BCS was much lower. Around 6 per cent of households reported being a victim of vehicle related theft or damage in the previous 12 months, 2 per cent reported being victims of burglary, and 3 per cent of adults had experienced violent crime in the last 12 months. Apart from men aged 16 to 24, the crime both men and women thought they were most likely to experience was vehicle crime (Figure 9.10). Men aged 16 to 24, however, perceived they were more likely to be victims of violent crime. When analysed by marital status, respondents who were separated were the most likely to think they would be a victim of vehicle crime (31 per cent) within the next 12 months, while one-fifth (20 per cent) of single people thought they were likely to be a victim of violent crime. However, people who were widowed were the least likely of all marital status groups to think that they would be a victim of vehicle crime, burglary or violent crime within the next 12 months. In 2007/08 both men and women in Northern Ireland felt they were more likely to be victims of vehicle crime than any other crime within the next 12 months. This was true for all ages although the perception was most prevalent among men aged 55 to 64 (28 per cent) and among women aged 25 to 34 (25 per cent). One-fifth (21 per cent) of young men aged 16 to Table 9.9 Perceptions of changing crime levels1 England & Wales Percentages Whole country Local area2 2001/02 65 51 2002/03 72 54 2003/04 65 48 2004/05 61 42 2005/06 63 42 2006/07 65 41 2007/08 65 39 1 British Crime Survey (BCS) respondents were asked if they thought there was more or less crime than two years ago and given the following options; ‘A lot more’, ‘a little more’, ‘about the same’, ‘a little less’ or ‘a lot less’. Data are the proportion of people who answered ‘a lot more’ or ‘a little more’. 2 Question only asked of respondents who had lived in their area for three years or more. Source: British Crime Survey, Home Office Social Trends 39: 2009 edition Chapter 9: Crime and justice 135 9 24 felt they were likely to be victims of violent crime within the next 12 months. Offenders In 2007, 1.41 million offenders were sentenced for indictable and summary offences in England and Wales (see Appendix, Part 9: Types of offence in England and Wales), compared with 1.42 million in 2006. Most of the offenders were male and of these 7 per cent were aged under 18. In 2007 the peak age for men being found guilty of, or cautioned for, one or more indictable offence was 17, with 6 per cent of men of this age being found guilty or cautioned, compared with 1 per cent of women of the same age (Figure 9.11). For females the peak age for being found guilty of, or cautioned for, an indictable offence was 15 (2 per cent). As young men and women entered their 20s the proportion of offenders started to decline but this happened at a younger age for women than for men. Less than 1 per cent of women at each age over the age of 20 were found guilty of, or cautioned for, an indictable offence in 2007 but for men the proportions did not decline to less than 1 per cent until the age of 45. In Northern Ireland 7,600 offenders were found guilty of, or cautioned for, indictable offences in 2006. Of these, 88 per cent were male. Young men aged 19 and 20 were the most likely to be offenders with nearly 4 per cent of all men in this age group being found guilty of, or cautioned for, an indictable offence. The proportion of women who were offenders was less than one-half of 1 per cent for all age groups. Theft and handling stolen goods accounted for 179,000 offences in England and Wales in 2007 and was the most common indictable offence for both men and women to be Figure 9.10 Perceived likelihood of being a victim of crime:1,2 by sex and age, 2007/08 England & Wales Percentages 1 Those who answered they were ‘fairly’ or ‘very likely’ to be victims of each crime within the next 12 months. See Appendix, Part 9: Perceived likelihood of being a victim of crime. 2 All respondents were asked, irrespective of whether or not they had been a victim of crime in the previous 12 months. Source: British Crime Survey, Home Office 0 5 10 15 20 25 30 0 5 10 15 20 25 30 16–24 25–34 35–44 45–54 55–64 65–74 75 and over 16–24 25–34 35–44 45–54 55–64 65–74 75 and over Vehicle crime Burglary Violent crime Vehicle crime Burglary Violent crime Men Women Figure 9.11 Offenders1 as a proportion of the population: by sex and age,2 2007 England & Wales Percentages 1 People found guilty of, or cautioned for, indictable offences in 2007. 2 Age 25 includes those offenders for whom age is not known. Source: Office for Criminal Justice Reform, Ministry of Justice 0 2 4 6 8 Males Females 10 20 30 40 50 60 70 and over Chapter 9: Crime and justice Social Trends 39: 2009 edition 136 9 found guilty of, or cautioned for; 30 per cent of male offences and 51 per cent of female offences (Figure 9.12). The next most common offences for men were drugs offences and violence against the person, with 78,000 and 77,000 offences respectively, 19 per cent each. The proportion of men found guilty of, or cautioned for, drugs offences in 2007 was double that of women (9 per cent). For women, the next most common offences, with 17,000 each, were violence against the person and other offences (17 per cent each). In Northern Ireland, the most common indictable offence for men to be found guilty of, or cautioned for in 2006, was violence against the person, accounting for 2,000 offences (30 per cent), followed by theft and handling stolen goods (20 per cent). For women, the most common offence to be found guilty of, or cautioned for (370 offences) was theft and handling stolen goods, accounting for two-fifths (40 per cent) of all offences. Of the 518,000 offenders found guilty of, or cautioned for, indictable offences in England and Wales in 2007, three-fifths (60 per cent) were sentenced. The type of sentence given depends on the offence committed and other factors that may be applied on a case-by-case basis (see Appendix, Part 9: Sentences and orders). The most common sentence for indictable offences in 2007 was a community sentence (34 per cent), with around one-half (46 per cent) of offenders sentenced for criminal damage and 43 per cent of those sentenced for burglary receiving this sentence (Table 9.13). Offenders committing indictable drugs offences were most commonly fined along with those convicted of ‘other indictable offences’ (32 per cent and 31 per cent respectively). More than one-half of those found guilty of sexual offences (56 per cent) and robbery (54 per cent) were sentenced to immediate custody. Motoring offences vary in severity and this is reflected in the variety of sentences given (see also Figure 9.17). Of those found guilty of indictable motoring offences in 2007, 29 per cent were sentenced to immediate custody, 26 per cent were given a community sentence and 23 per cent were fined. In Northern Ireland 7,600 offenders were sentenced for indictable offences in 2007. A fine was the most common sentence for all offences apart from robbery, sexual offences and burglary, where the most common sentence was immediate custody (85 per cent, 55 per cent and 45 per cent respectively). One aim of the criminal justice system is to try to prevent offenders from committing further crimes, so the measurement of reoffending is of considerable policy interest. One measure of adult reoffending, on which the Ministry of Justice reoffending target is based, is the frequency of reoffences committed per 100 offenders. This measure is based on the number of offences committed within one year by offenders who were released from prison or had commenced a court order under probation supervision. In 2006 there were 146 offences per 100 offenders, a decrease of 32 per cent since 2002 when the rate was 215 offences per 100 offenders. Another way to measure adult reoffending is the actual yes/no (binary) reoffending rate. This rate counts the proportion of adult offenders released from custody or commencing a court order under probation supervision who offended at least once during a one-year follow-up period, and where the offence resulted in a conviction at court (see Appendix, Part 9: Reoffenders). This measure is therefore based purely on the number of reoffenders, however many offences they may commit during the follow-up period. Of the offenders leaving prison or starting a community sentence in the first quarter of 2006, 39 per cent reoffended within one year, the lowest reoffending rate since the series began with the 2000 cohort and a decrease from the 42 per cent who reoffended in 2005. There was an overall decline in the reoffending rate by age; 48 per cent of 18 to 20-year-olds in 2006 reoffended within one year, more than double the rate among offenders aged 50 and over (Figure 9.14). However, offenders in this older age Figure 9.12 Offenders found guilty of, or cautioned for, indictable offences:1 by sex and type of offence, 2007 England & Wales Thousands 1 See Appendix, Part 9: Types of offence in England and Wales. 2 Includes fraud and forgery and indictable motoring offences. Source: Office for Criminal Justice Reform, Ministry of Justice 0 20 40 60 80 100 120 140 Males Females Theft and handling stolen goods Drug offences Violence against the person Burglary Criminal damage Robbery Sexual offences Other offences2 Social Trends 39: 2009 edition Chapter 9: Crime and justice 137 9 group had the greatest increase in the reoffending rate, increasing from 13 per cent in 2000 to 19 per cent in 2006. Reoffending among juveniles is measured in a similar way to adults and covers juveniles aged ten to 17 released from custody, starting a non-custodial court disposal or those given an out-of-court disposal (see Appendix, Part 9: Reoffenders – juveniles). In 2006 the reoffending rate for juveniles was the same as that for adults (39 per cent). Although this was slightly lower than the 40 per cent reoffending rate in 2000, the rate for juveniles has remained between 38 and 39 per cent since 2002. Juveniles committed 123 offences per 100 juvenile offenders in 2006, a 19 per cent decrease from the reoffending rate of 151 per 100 offenders in 2000. Prisons and sentencing Prison is the usual destination for offenders given custodial sentences or those who break the terms of their non-custodial sentence. The prison population (those held in prison or police cells, see Appendix, Part 9: Prison population for more details) in Great Britain was relatively stable in the 1980s and early 1990s but in the mid-1990s the population began to increase (Figure 9.15 overleaf). The largest increase, 10 per cent, occurred between 1996 and 1997. Apart from small decreases of less than 1 per cent in 1999 and 2000, the prison population increased every year since 1991 and in 2008 reached 91,000, almost double the population of 1980 and 4 per cent higher than in 2007. This 4 per cent increase in the average prison population in 2008 was recorded for both sentenced and remand (which includes untried and convicted but unsentenced) prisoners. Table 9.13 Offenders sentenced for indictable offences: by type of offence1 and type of sentence,2 2007 England & Wales Percentages Discharge Fine Community sentence Suspended sentence order Immediate custody Other All sentenced (=100%) (thousands) Theft and handling stolen goods 21 13 38 6 19 3 105.5 Drug offences 18 32 23 6 18 2 44.5 Violence against the person 7 5 38 17 30 4 42.1 Burglary 4 2 43 10 39 2 23.5 Fraud and forgery 17 11 32 12 26 2 19.9 Criminal damage 22 10 46 4 11 9 12.3 Motoring 4 23 26 16 29 2 5.5 Robbery - - 39 5 54 1 8.9 Sexual offences 3 3 27 9 56 3 5.1 Other offences 9 31 23 8 20 9 45.0 All indictable offences 14 16 34 9 24 4 312.3 1 See Appendix, Part 9: Types of offence in England and Wales. 2 See Appendix, Part 9: Sentences and orders. Source: Ministry of Justice 1 Percentage of all offenders reoffending at least once during the one-year follow-up period, where the reoffence resulted in conviction at court. Includes offenders aged 18 and over discharged from prison, or starting a court order supervised by the probation service, in the first quarter (January–March) of the year. Source: Ministry of Justice Figure 9.14 One-year reoffending rate:1 by age England & Wales Percentages 0 20 40 60 18–20 21–24 25–29 30–34 40–4935–39 50 and over 2000 2006 Chapter 9: Crime and justice Social Trends 39: 2009 edition 138 9 The annual average number of sentenced prisoners in Great Britain increased by 83 per cent between 1980 and 2008, from around 40,000 to 74,000, while the number of remand prisoners more than doubled, from 7,000 to 15,000. Northern Ireland’s prison population fell during the 1980s and 1990s to a low of 910 in 2001. One reason for the decrease in the late 1990s was the implementation of the Northern Ireland (Sentences) Act 1998, arising from the Belfast Agreement (Good Friday Agreement), which resulted in the release of a number of prisoners between 1998 and 2000. However, the prison population in Northern Ireland has increased progressively since that time and the population in 2007, of 1,470 prisoners, was around 61 per cent higher than in 2001. In 2007 the prison population rate in England and Wales was 149 prisoners per 100,000 population. This was 21 per cent higher than the EU-27 average rate of 123 per 100,000 population, and the seventh highest in the EU-27 (Figure. 9.16). The prison population rate in Scotland was 142 per 100,000 population (15 per cent higher than the EU average) but the population in Northern Ireland, at 83 per 100,000 population, was 32 per cent lower and the seventh lowest in the EU-27. With the exception of Luxembourg, England and Wales had the highest prison population rate of the original EU-15 member states (see Appendix, Part 4: Accession to the European Union (EU)). The highest rate of the EU-27 was in Estonia, at 322 per 100,000 population and the lowest was Denmark, at 62 per 100,000 population. However, comparing prison populations across the EU is difficult because the number of prisoners in custody at any one time depends on the individual penal systems in operation in each country. Prison is just one way of dealing with offenders and in recent years there has been an increase in the use of non-criminal proceedings, such as the use of fixed penalties (fines) for a number of different crimes, including motoring offences. Overall in 2006 there were a total of 12.7 million motoring offences in England and Wales, equivalent to a rate of 422 motoring offences per 1,000 licensed vehicles. The total number of offences dealt with increased from 9.5 million in 1996 to 13.7 million in 2004 although the number then decreased in each of the following two years to 2006. Although the number of motoring offences in 2006 was the lowest number dealt with since 2002, the number receiving penalty charge notices was at the highest level in the last decade; from 3.5 million in 1996 to 7.8 million in 2006 (Figure 9.17). This increase reflects the change in the treatment of summary motor offences, such as parking, from using criminal penalties 1 Includes prisoners held in police cells. 2 Includes non-criminal prisoners (for example, those held under the Immigration Act 1971). Source: Ministry of Justice; Scottish Government Figure 9.15 Average prison1 population Great Britain Thousands 0 20 40 60 80 100 1980 1985 1990 1995 2000 2005 2008 Total2 Remand Sentenced 1 As at 1 September. Number of prisoners, including pre-trial detainees/remand prisoners. 2 Data for England and Wales, Scotland and Northern Ireland are presented separately because of the different criminal justice systems in these countries. Source: Ministry of Justice Figure 9.16 Prison population:1 EU comparison,2 2007 Rates per 100,000 population 0 50 100 150 200 250 300 350 Estonia Latvia Lithuania Poland Czech Republic Luxembourg England and Wales Slovakia Spain Bulgaria Hungary Scotland Romania Netherlands Portugal Austria Greece France Malta Belgium Germany Cyprus Northern Ireland Italy Ireland Sweden Slovenia Finland Denmark EU-27 average Social Trends 39: 2009 edition Chapter 9: Crime and justice 139 9 pursued through the courts to a civil system in which offences are dealt with by the use of fines. This change was reflected in a decrease in the number of offences dealt with using court proceedings, to reach 1.7 million in 2006 and a further fall to 1.4 million in 2007 the lowest number dealt with in this way since the time series began in 1996. In 2007, court proceedings were most often taken for offences within the ‘licence, insurance and record-keeping offences’ category (including offences of ‘driving while disqualified’ and ‘using motor vehicle uninsured against third party risks’) amounting to 724,000, or 51 per cent of offences in 2007, compared with 921,000 in 2006. Driving while using a hand-held mobile phone became an offence on 1 December 2003 and in 2006 there were 168,500 offences of ‘use of hand-held mobile phone while driving’ dealt with by the police and parking attendants. Of these, around 98 per cent were dealt with by fixed penalties with the remainder being dealt with by court proceedings or written warnings. In 2007 there were 14,000 court proceedings for ‘use of hand-held mobile phone while driving’, up from 2,700 in 2006, reflecting the large number of police force areas taking action against drivers using hand-held mobile phones while driving. As well as dealing with offenders by the use of non-criminal proceedings such as fines, there are a number of measures aimed at reducing and preventing crime and reoffending. In England and Wales these measures include community orders, intended to move low-level offenders away from custodial sentences, which can be used instead of, or alongside, other sentences or orders. In addition there are a number of interventions aimed specifically at anti-social behaviour and, in particular, a range of measures to help parents and agencies such as youth offending teams to deal with anti-social behaviour by young people. The interventions available range from one-off fines (fixed penalty notices and penalty notices for disorder) to non-legal agreements, contracts and warnings (including acceptable behaviour contracts and parenting contracts) to court orders that prohibit the perpetrator from specific anti-social behaviours – anti-social behaviour orders (ASBOs) and parenting orders. ASBOs were introduced in 1999 and are aimed at protecting the public rather than punishing the perpetrator (see Appendix, Part 9: Anti-social behaviour orders (ASBOs)). However, while an ASBO is a civil order that will not appear on an individual’s criminal record, a breach of an ASBO is a criminal offence punishable by a fine or a custodial sentence. In 2006, 2,706 ASBOs were issued in England and Wales. Of these around three-fifths (1,625) were issued to individuals aged 18 and over, and two-fifths (1,054) were issued to ten to 17-year-olds (Figure 9.18). The number of ASBOs issued increased every year between 2001 and 2005, but between 2005 and 2006 there was a 34 per cent decrease. This decrease does not necessarily indicate a reduction in the offending behaviour but rather a change in the types of intervention used. Figure 9.17 Motor vehicle offences: by action taken England & Wales Millions 1 Civil notices issued by a council for apparent contraventions to the council’s Traffic Regulation Order (bylaw regulations). 2 Notices issued by police officers and police traffic wardens to motorists who commit parking and bus-lane offences governed by criminal law. 3 Includes written warnings and vehicle defect rectification scheme (VDRS) notices. Source: Ministry of Justice 0 2 4 6 8 Penalty charge notice1 Fixed penalty notice2 Court proceedings Other3 1996 1998 2000 2002 2004 2006 1 Issued at all HM Courts and reported to the Home Office by the Courts Service. Source: Home Office Figure 9.18 Number of anti-social behaviour orders (ASBOs) issued:1 by age England & Wales Numbers 0 500 1,000 1,500 2,000 2,500 3,000 200620052004200320022001 10–17 18 and over Chapter 9: Crime and justice Social Trends 39: 2009 edition 140 9 As well as ASBOs, acceptable behaviour contracts (ABCs) are written agreements that form a contract between the offender and their local authority, Youth Inclusion Support Panel, landlord or the police. The aim is to engage the individual in recognising the negative effects of their offending behaviour on others and encourage them to stop. Between October 2003 and September 2007 around 30,000 ABCs were issued in England and Wales. The Anti-Social Behaviour Act 2003 and the Criminal Justice Act 2003 introduced measures aimed at involving parents in reducing anti-social and offending behaviour in the form of parenting contracts (PCs) and parenting orders (POs). A PC is a voluntary written agreement between a youth offending team worker and the parents of a child who is, or is likely to become, involved in criminal or anti-social behaviour. A PO is made in similar circumstances by a court (criminal, family or magistrates’) and can be applied where parents are unwilling to co-operate (see Appendix, Part 9: Parenting contracts and parenting orders). Between October 2003 and September 2007 around 9,000 PCs and more than 2,000 POs were issued in England and Wales. As with ABCs, a large proportion (around two-fifths) of the total number of PCs and POs were issued between January and September 2007, indicating a rise in the use of these interventions as a form of reducing anti-social behaviour. Alongside this increase in the range of sentences and orders available for dealing with young offenders (aged ten to 17), a number of measures were also taken to reduce the time taken for them to be dealt with in the criminal justice system. In 1997 the Government set a target to maintain the average time from arrest to sentence specifically for persistent young offenders at or below 71 days (see Appendix, Part 9: Persistent young offenders). This was one-half the average number of days from arrest to sentence in 1996 of 142 days. The target of 71 days was reached in 2002 and has since remained below this level apart from in 2006, when it was 72 days (Figure 9.19). Between 2006 and 2007 there was a reduction of seven days in the time between arrest and sentencing to 65 days. The first half of 2008 showed a provisional decrease of a further seven days to 58 days. Overall performance against this target is largely determined by timeliness in the magistrates’ courts, where at least nine-tenths of all persistent young offender cases are heard. Although the average number of days between arrest and sentence is much longer for cases at Crown courts, and there was an increase in this time between 2005 and 2006 (from 191 to 214 days), this has little impact on overall timeliness because of the small number of cases involved. Police and other resources There were around 142,000 full-time equivalent police officers in England and Wales in 2008. Around one-quarter (24 per cent) were female and of these 85 per cent were constables, 10 per cent were sergeants and 3 per cent were inspectors. Less than 1 per cent of female police officers were in the senior Association of Chief Police Officers (ACPO) ranks. Overall there has been an increase in the number of police officers in the last ten years, from around 125,000 in 1998, and the proportion of female officers has increased from 16 per cent. The proportion of police officers who are from an ethnic minority group in England and Wales has also increased over the last decade, from 2 per cent in 1999 to 4 per cent in 2008 (Figure 9.20). In 2008, 4 per cent of constables were from an ethnic minority compared with 2 per cent of chief superintendents. For all other ranks of police officer around 3 per cent were from an ethnic minority. The proportion of officers who were from an ethnic minority group varied by police force area in England and Wales. In 2008 the London Metropolitan police force area had the highest proportion of ethnic minority officers, at 8 per cent. West Midlands police force had the second highest proportion, at 7 per cent, followed by Leicestershire with 6 per cent. The Figure 9.19 Average number of days from arrest to sentence for persistent young offenders1 England & Wales Days 1 Young offenders are those aged 10 to 17. See Appendix, Part 9: Persistent young offenders. 2 Target for average number of days between arrest and sentence, set by the Government in 1997, is 71 days. 3 Figures will differ from those previously published due to re-calculation of time series. See Appendix, Part 9: Average time from arrest to sentence. 4 Data are for January to June 2008. Source: Ministry of Justice 0 25 50 75 100 125 150 Number of days Target number of days2 1997 1999 2001 20033 2005 2007 20084 Social Trends 39: 2009 edition Chapter 9: Crime and justice 141 9 police force area with the lowest proportion of ethnic minority officers was North Wales, at less than one-half of 1 per cent. Of the 142,000 police officers in England and Wales in 2008, 2 per cent were Asian or Asian British and 1 per cent each were Black or Black British, or Mixed. In Northern Ireland the proportion of police officers who are from an ethnic minority group has increased every year since 2004, from 0.24 per cent to 0.4 per cent in 2008. According to the 2007/08 British Crime Survey, almost two-thirds (65 per cent) of people in England and Wales had overall confidence in the police in their local area (Table 9.21), a 1 percentage point increase since 2006/07. More than four-fifths (83 per cent) agreed that the local police would treat them with respect if they had contact with them and almost two-thirds (64 per cent) agreed that their local police would treat everyone fairly regardless of who they are, and that they understand the issues affecting their community (62 per cent). People had the least confidence in relying on their local police to deal with minor crimes (43 per cent). In Northern Ireland three-fifths (60 per cent) of people had overall confidence in the local police in 2007/08. Four-fifths (81 per cent) agreed that the police would treat them with respect if they had contact with them, around the same proportion as those in England and Wales. The proportions of people agreeing that the police treat everyone fairly regardless of who they are and that they can be relied on to deal with minor crimes were the same as those for England and Wales (64 per cent and 43 per cent respectively). The 2007/08 BCS showed that the level of confidence that people in England and Wales had in the criminal justice system (CJS) as a whole had increased compared with 2006/07 in five of the seven areas covered. In particular, the proportion of people who were fairly or very confident that the CJS was effective in bringing people who commit crimes to justice increased by 3 percentage points since 2006/07 to 44 per cent. This is the same increase as the proportion who were either very or fairly confident that the CJS meets the needs of victims of crime (from 33 per cent to 36 per cent between 2006/07 and 2007/08). These increases follow a general decrease in confidence between 2005/06 and 2006/07. The CJS is one of the major public services in England and Wales. It comprises the Police Service, the Crown Prosecution Service, HM Courts Service, the National Offender Management Service (covering prisons and probation) and the Youth Justice Board. HM Courts Service is responsible for managing the magistrates’ courts, the Crown courts, county courts, the High Court and Court of Appeal in England and Wales (see Appendix, Part 9: Courts system in England and Wales). The judiciary, that is the judges, magistrates and other adjudicators as well as support personnel who keep the courts system running smoothly, account for a large proportion of the courts system resources. In 2008 there were more than 3,800 members of the judiciary serving in England and Wales, of which the largest group (34 per cent) were recorders Figure 9.20 Ethnic1 minority officers as a proportion of all police officers2,3 England & Wales Percentages 1 See Appendix, Part 1: Classification of ethnic groups. 2 As at 31 March in each year. 3 Proportions for 1999 to 2002 were calculated using the headcount ethnic minority officer strength as a proportion of all full-time equivalent officer strength. The proportions from 2003 were calculated using full-time equivalent ethnic minority strength as a proportion of all full-time equivalent officer strength. Source: Home Office 0 1 2 3 4 5 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Table 9.21 Perceptions1 of the local police, 2007/08 England & Wales Percentages Would treat you with respect if you had contact with them 83 Treat everyone fairly regardless of who they are 64 Understand the issues that affect this community 62 Are dealing with things that matter to people in the community 51 Can be relied upon to be there when you need them 48 Can be relied on to deal with minor crimes 43 Overall confidence in the local police2 65 1 Proportion of respondents who strongly agreed/tended to agree with the statement. 2 Based on question ‘Taking everything into account I have confidence in the police in this area’. Source: British Crime Survey, Home Office Chapter 9: Crime and justice Social Trends 39: 2009 edition 142 9 (barristers or solicitors who are appointed part-time judges). A further one-quarter (25 per cent) of the judiciary were deputy district judges, 17 per cent were circuit judges and 15 per cent were district judges. Four-fifths (81 per cent) of the total judiciary were men (Table 9.22). Of the women in the judiciary, 35 per cent were deputy district judges and 27 per cent were recorders. The most common position to be held by men was recorder (36 per cent) (see Appendix, Part 9: Judiciary of England and Wales for further information on the separate roles in the judicial system). In 2008, 4 per cent of the judiciary in England and Wales were from an ethnic minority group; 7 per cent of deputy district judges (magistrates’ courts), 5 per cent of recorders and district judges (county courts), and smaller proportions, or none, among more senior positions. Table 9.22 Composition of the judiciary:1 by sex and ethnic group,2 20083 England & Wales Percentages Sex Ethnicity All (numbers)Male Female White Ethnic minority group Heads of Division 100.0 0.0 100.0 0.0 5 Lords of Appeal in Ordinary 91.7 8.3 100.0 0.0 12 Lord Justices of Appeal 91.9 8.1 100.0 0.0 37 High Court judges 90.0 10.0 97.3 2.7 110 Circuit judges 86.7 13.3 96.9 3.1 653 Recorders 85.1 14.9 95.3 4.7 1,305 Judge advocates 100.0 0.0 100.0 0.0 9 Deputy judge advocates 91.7 8.3 100.0 0.0 12 District judges (county courts) 77.6 22.4 95.4 4.6 438 District judges (magistrates’ courts) 77.2 22.8 97.8 2.2 136 Deputy district judges (county courts) 72.7 27.3 96.0 4.0 773 Deputy district judges (magistrates’ courts) 76.0 24.0 92.8 7.2 167 Masters, registrars, costs judges and district judges (Principal Registry of the Family Division) 77.1 22.9 97.9 2.1 48 Deputy masters, deputy registrars, deputy costs judges and deputy district judges (Principal Registry of the Family Division) 66.1 33.9 95.7 4.3 115 All 81.0 19.0 95.9 4.1 3,820 1 See Appendix, Part 9: Judiciary of England and Wales. 2 See Appendix, Part 1: Classification of ethnic groups. 3 As at 1 April 2008. Source: Judicial Database, Judiciary of England and Wales Crime and justice Crime levels Offences and victims Perceptions of crime Offenders Prisons and sentencing Police and other resources 
work_ipvvt6y33natbhz5su53isvt3q	----	Microsoft Word - The Extradition of Julian Assange Final Chair Report-2.docx 1 Forum: International Court of Justice Issue: The Extradition of Julian Assange (United Kingdom V. Ecuador) Student Officer: Anas Soliman (ICJ President), Zeina Gohar (ICJ Chair) I- Introduction Since June of 2012, Julian Assange’s extradition case has been notorious for being one of the most controversial legal and political disputes, given the nature of the numerous parties involved. Julian Assange is an Australian journalist and publisher, mostly renowned for being the founder and editor of WikiLeaks1, a non-profit organization that facilitates the anonymous leakage of information and the exposition of wrongdoing2. In 2010, during his trip to Sweden, it was reported that Julian Assange sexually assaulted two Swedish women1. After his return to the UK, Swedish prosecutors issued a European Arrest Warrant, which was certified by the Serious Organized Crime Agency, the SOCA, demanding Assange’s extradition and return to Sweden in order to proceed with the investigations1. Since the establishment of WikiLeaks, the organization has been releasing secret and classified documents belonging or pertaining to the United States government1, which have caused it great embarrassment. Subsequently, the US government initiated a criminal investigation, which targeted Assange with espionage charges1. Moreover, the US military has officially labeled Julian Assange as a wanted individual and an “enemy of the United States”3. The United States and Sweden share an extradition treaty, which means that Assange is under the threat of extradition to the United States if he is extradited to Sweden4. Escaping a threat of eventual extradition to the United States, Assange sought political asylum in the embassy of Ecuador in the UK, which he was granted finding that he “could at any moment find himself in a situation likely to endanger life, safety or personal integrity”1. Through its application to the ICJ, the United Kingdom seeks to confirm that Assange is not a political refugee and that his political asylum has no legal foundations, thus authorizing his extradition to Sweden. On the other hand, Ecuador aims to confirm that Assange’s Human rights are severely threatened, therefore justifying his blatant recognition as a political refugee, in order facilitate his safe passage out of the UK. II- Definition of Key Terms Refugee: A refugee is someone who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country."5 European Arrest Warrant: The European arrest warrant is a judicial decision valid throughout all member states of the European Union “issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”6                                                                                                                 1 "Extraditing Assange." Justice For Assange. Justice4assange.com, Web. 8 July 2014 2 "About WikiLeaks." WikiLeaks. Wikileaks.org, 5 July 2011. Web. 12 July 2014 3 Dorling, Philip. "US Calls Assange 'enemy of State'" The Sydney Morning Herald. Web. 12 July 2014 4 Baker, Scott, David Perry, and Anand Doobay. "A Review Of The United Kingdom's Extradition Arrangements." n. pag. Gov.uk. 30 Sept. 2011. Web. 12 July 2014 5 "Refugees." UNHCR. Web. 09 July 2014   6 "Law No. 65/2003 of 23 August." Portuguese Legislation in English. GDDC, Web. 12 July 2014 2 WikiLeaks: WikiLeaks is a non-profit organization, which has a “goal to bring important news and information to the public”, and provides an “innovative, secure and anonymous way for sources to leak information to the organization’s journalists.”7 Extradition: “The surrender of an alleged criminal usually under the provisions of a treaty or statute by one authority (as a state) to another having jurisdiction to try the charge.”8 Journalist: “A person engaged in journalism, who is a writer or editor for a news medium and aims at a mass audience.”9 Political Asylum: The protection granted by a nation to someone who has left their native country as a political refugee. III- Background Information Julian Assange is an Australian journalist and activist that has aroused great concern among numerous governments since he initiated the WikiLeaks organization in 200710. WikiLeaks is an international, online, non profit organization dedicated to bringing “important news and information to the public”. The WikiLeaks organization has disclosed hundreds of classified information and published thousands of secret government documents in order to achieve its purpose of bringing truth and information to the public. The WikiLeaks website has published more than 1.2 million documents just within a year of its initiation11. Assange’s organization met hostile responses from governments all around the world. In 2009, the Australian Communications and Media Authority added WikiLeaks to the list of sites to be banned after the implementation of its mandatory Internet filtering scheme12. The United States government openly condemned the actions of WikiLeaks and the Obama administration along with the U.S. Army, Federal Bureau of Investigation and the U.S. Department of Justice have pursued personal legal actions towards Assange. The Obama administration is attempting to bring him to court on grounds that his organization “encourages the theft of government property”13. The US government has reportedly asked other parties such as the UK, Germany and Australia to limit his travel across international borders and consider bringing him to international court. WikiLeaks and its founder did however gain much support from other countries and even the United Nations. Following Assange’s arrest in the UK in 2010, Brazil’s President, Luiz Inacio Lula da Silva, expressed his solidarity with Assange and his organization, and went on to state that an attack on Assange or any volunteers or employees of his organization is an “attack on freedom of expression”14. Later that year, the government of Ecuador offered Assange residency in Ecuador so he may freely publish the information his organization possesses with no fear of arrest or surveillance, according to                                                                                                                 7 "About WikiLeaks." WikiLeaks. Wikileaks.org, 5 July 2011. Web. 12 July 2014 8 "Definition of Extradition." Merriam Webster. Web. 12 July 2014 9 "Definition of Journalist." Merriam Webster. Web. 12 July 2014 10 "About WikiLeaks." WikiLeaks. Wikileaks.org, 5 July 2011. Web. 12 July 2014 11 "WikiLeaks Introduction." WikiLeaks.org. Web. 12 July 2014 12 "Australia Secretly Censors Wikileaks Press Release." WikiLeaks.org. Web. 12 July 2014 13 Freeman, Colin. "Rape Claim against Wikileaks Founder Julian Assange Withdrawn." Telegraph.co.uk. 21 Aug. 2010. Web. 12 July 2014 14 "President Lula Shows Support for Wikileaks (English/Español/Italiano Subtitles)." YouTube. Web. 12 July 2014 3 Ecuador’s Deputy Foreign Minister, Kinto Lucas. However, President Rafael Correa later forfeited the offer to Assange and refuted Lucas’s statements15. The United Nations Special Rapporteur for Freedom of Opinion and Expression, Frank LaRue, agreed that Assange was a “martyr of free speech” and he later expressed that neither Assange nor his respective coworkers should be held accountable for any of the disclosed information, rather it is the sources that leaked the information that should be held accountable by the entities to which they pertain to16. In mid August 2010, Assange was charged by the Swedish authorities for the sexual assault of two Swedish women17. Swedish authorities issued a European Arrest Warrant, requesting that the journalist returns to Sweden immediately for questioning regarding the sexual assault allegations. This arrest warrant was later certified by the United Kingdom Serious Crime Agency. The following day, Assange peacefully surrendered to British police, pleading innocence. In February 2011, a hearing took place before the Chief Magistrate of England and Wales. The European Arrest Warrant was labeled as valid and after two unsuccessful appeals the Supreme Court of the United Kingdom released a statement in 2012 admitting the United Kingdom’s legal obligation to extradite Assange to Sweden for questioning18. On 19 June 2012, Assange sought diplomatic asylum in the Ecuadorian embassy in London, where he has remained since. UK government officials have stated that Assange will be arrested and immediately extradited to Sweden once he steps foot outside the doors of the embassy19. In late November 2010, WikiLeaks released a total of 251,000 diplomatic cables. Subsequently, the United States Department of Justice launched a full-scale criminal investigation on Assange20. The publication of the government documents unleashed great chaos and outrage in America. In December 2010 Michael Huckabee, the 44th Governor of Arkansas and formal presidential candidate, called for the assassination of Julian Assange21. The United States seeks to prosecute Assange in American court under the Espionage Act of 1917 for colluding with Chelsea Manning22, the US military official that illegally extracted the 251,000 documents that were published by WikiLeaks. If found guilty, Assange could face conviction or even a death penalty. However, the grounds on which the US wishes to prosecute Assange are still debated and they might not be enough for the court to find the accused guilty. Furthermore, the United States has not yet submitted an official extradition request, nor is it clear in the extradition treaty it has with Sweden. Whether Sweden would have the rights to extradite Assange to the US under the extradition treaty also remains unclear. In order to bring an end to the case of the internationally wanted Julian Assange, the United Kingdom has applied to the United Nation’s International Court of Justice to determine whether Ecuador’s diplomatic                                                                                                                 15 "Ecuador Offers Asylum to WikiLeaks Founder." The Jerusalem Post. 30 Nov. 2011. Web. 12 July 2014 16 Hall, Eleanor. "The World Today with Eleanor Hall." The World Today. Web. 12 July 2014 17 Davies, Nick. "10 Days in Sweden: The Full Allegations against Julian Assange." The Guardian. Guardian News and Media, 18 Dec. 2010. Web. 10 July 2014 18 Green, David A. "The Legal Mythology of the Extradition of Julian Assange."New Statesman. 3 Sept. 2012. Web. 12 July 2014 19 Davies, Lizzy, and Jo Adetunji. "Julian Assange Granted Asylum by Ecuador - as It Happened." Theguardian.com. Guardian News and Media, 16 Aug. 2012. Web. 12 July 2014 20 "Extraditing Assange." Justice For Assange. Justice4assange.com, Web. 8 July 2014 21 Collins, Nick. "WikiLeaks: Guilty Parties 'should Face Death Penalty'"Telegraph.co.uk. 1 Dec. 2012. Web. 12 July 2014 22 Kohn, Stephen M. "A Sad Day for the US If the Espionage Act Is Used against WikiLeaks." Theguardian.com. Guardian News and Media, 15 Dec. 2010. Web. 12 July 2014 4 asylum has proper legal foundations, in reference to the Convention and Protocol on the Status of Refugees, thus determining if Ecuador is under a legal obligation to surrender Assange to British custody in order to facilitate the UK’s obligation of extraditing him to Sweden. IV- Major Parties Involved The United Kingdom The United Kingdom Serious Crime Agency validated the European Arrest Warrant issued by Sweden and admitted its obligation to turn Assange over to Swedish authorities in December 2010. The following day, London police arrested the accused after he peacefully turned himself over to a local police station, pleading his innocence23. In February of 2011 the European Arrest Warrant was officially certified at a hearing before the Chief Magistrate of England and Wales. The judgment was unsuccessfully appealed twice. In June of 2012, the Supreme Court of the United Kingdom released a statement admitting the United Kingdom’s duty to hand Assange over to Swedish authorities. On the 19th of June 2012, Julian Assange sought asylum in the Embassy of Ecuador in London, where he has remained until today. London Metropolitan police forces surrounded the embassy and have also remained stationed there ever since. British authorities could state no clearer that police will arrest Assange once he steps foot outside the premises of the embassy. Shortly before the Ecuadorian embassy granted the wanted man safe asylum, British authorities threatened to invade the embassy’s premises to arrest Assange, violating the terms of the Vienna Conventions and dismissing the building’s diplomatic status. This threat was however withdrawn after it met great international condemnation and disapproval24. The Republic of Ecuador Ecuador, upholding its duty to protect individuals’ “freedom of expression” as explained by foreign minister Ricardo Patino25, continues to grant Julian Assange political asylum. Assange entered the Ecuadorian embassy, located on British territory, on the 19th of June 2012, seeking asylum, given his fears of persecution by the United States government and Swedish authorities.26 On the following August the 16th, Ecuador announced that Assange’s fears of persecution were well-founded, thus officially granting him political and diplomatic asylum.23 Ecuador cited that Assange’s indictment for crimes of a political nature is the basis of his request, and that Ecuador finds that he, as a result of his dedicated defense of freedom of expression and press, is facing a situation involving an imminent danger of political persecution, which could eventually violate his rights, integrity and could become a risk to his personal safety.27 The Constitution of the Republic of Ecuador clearly recognizes the right of asylum and its “extradition laws prevent the extradition of any person whose life or safety could suffer as a result of the extradition”27. Thus, Ecuador maintains that it is not in violation of the Extradition Treaty between the UK and itself, given that it regards Assange as a political refugee whom is no longer eligible for extradition. Ecuador continues its efforts to protect Assange’s rights by not allowing him to be extradited to Sweden “without adequate safeguards against US threat”24. As long as Sweden continues its refusal to provide such safeguards, Ecuador finds itself obligated to shelter Assange as a political victim and refugee, thus refusing to hand him in to the British authorities.                                                                                                                 23 "Wikileaks' Assange Refused Bail." BBC News. 8 Dec. 2012. Web. 12 July 2014 24 "Extraditing Assange." Justice For Assange. Justice4assange.com, Web. 8 July 2014 25 "Ecuador to Continue Assange Asylum." BBC News. 17 June 2013. Web. 12 July 2014 26 "Extraditing Assange." Justice For Assange. Justice4assange.com, Web. 8 July 2014 27 "Ecuador Grants Asylum to Julian Assange. (Press Conference)."WikiLeaks.org. 17 Aug. 2012. Web. 12 July 2014 5 Kingdom of Sweden In 2010, Swedish authorities came across evidence proving that the founder of WikiLeaks had sexually assaulted two Swedish citizens. An investigation was launched and authorities issued a European Arrest Warrant, demanding the accused’s immediate return to Sweden for questioning28. The investigation is forcibly put on hold, as Swedish authorities await Assange’s return until today. Sweden shares extradition treaties with both the United Kingdom and the United States of America. Under the terms of the treaty with the United Kingdom, it is clearly nonnegotiable that the UK is legally obligated to extradite Assange to Sweden, as under the terms of the European Arrest Warrant29. Sweden’s extradition treaty with the United States however is what sparks controversy. Under the terms of the treaty, the assertion that Sweden is under legal and international obligation to extradite Assange to the US is doubted30. This is due to many reasons that are clearly presented within the clauses of the treaty. United States of America Since the establishment of Julian Assange’s non-profit organization, WikiLeaks, secret and classified documents belonging or pertaining to the United States government have been released31, causing it great embarrassment. In 2010, Assange oversaw the largest publication of over half a million documents from the Pentagon and US State Department, which included precise details elucidating the deaths of thousands in Iraq and Afghanistan.31 Consequently, the US government initiated a criminal investigation, which targeted Assange and his associates with espionage charges31. The United States government openly condemned the actions of WikiLeaks, and the Obama administration along with the U.S. Army, FBI and the U.S. Department of Justice have pursued personal legal actions towards Assange. Moreover, the US military has officially labeled Julian Assange as a wanted individual and an “enemy of the United States”32. Even though the United States has not yet issued an extradition request, Assange fears his eventual extradition to the United States. Assange is in danger of facing charges including espionage under the Espionage Act, which could eventually result in a death penalty, if it is within jurisdiction. Also, the United States and Sweden share an extradition treaty, which means that Assange is under the threat of extradition to the United States if he is extradited to Sweden33. However, no official charges or extradition requests have been filed by the United States against Assange.                                                                                                                 28 Davies, Nick. "10 Days in Sweden: The Full Allegations against Julian Assange." The Guardian. Guardian News and Media, 18 Dec. 2010. Web. 10 July 2014 29 Green, David A. "The Legal Mythology of the Extradition of Julian Assange."New Statesman. 3 Sept. 2012. Web. 12 July 2014 30 "Extradition for Criminal Offences." Swedish Government. Web. 12 July 2014 31 "Extraditing Assange." Justice For Assange. Justice4assange.com, Web. 8 July 2014 32 Dorling, Philip. "US Calls Assange 'enemy of State'" The Sydney Morning Herald. Web. 12 July 2014 33 Baker, Scott, David Perry, and Anand Doobay. "A Review Of The United Kingdom's Extradition Arrangements." n. pag. Gov.uk. 30 Sept. 2011. Web. 12 July 2014 6 V- Important Events & Chronology Date (Day/Month/Year) Event 4 October 2006 Julian Assange launches WikiLeaks in Iceland. 20 August 2010 Following reports of rape and molestation, Swedish prosecutors order the arrest of Assange. 26 August 2010 The prosecutor pursuant to the Council of the European Union issues a European Arrest Warrant. 28 August 2010 WikiLeaks issues more than 250,000 US diplomatic cables, which is regarded as a “serious damage to national US security”. 6 October 2010 The UK Serious Organized Crime Agency certifies the European Arrest Warrant. 19 June 2012 Assange enters the Ecuador’s embassy in London. 20 June 2012 British police forces surround the Ecuadorian embassy, where they have remained since. 26 August 2012 Ecuadorian government officially grants Assange political and diplomatic asylum granted by the Ecuadorian Embassy VI- Related Documents Vienna Convention on Diplomatic Relations The Vienna Convention on Diplomatic Relations provides an overview of the structure for diplomatic relations between sovereign countries and it encompasses the certain freedoms of a diplomatic mission. This document preserves the concept of diplomatic immunity. 189 States are parties to this convention. Organization of American States (OAS) Convention of Diplomatic Asylum 1954 As the right to diplomatic asylum is not established in international law, the Organization of American States Convention on Diplomatic Asylum is regarded as the only treaty in the world that addresses the concept of diplomatic asylum. The convention was an attempt in 1954 by Latin American countries to recognize the right to diplomatic asylum as a principle of international law. Ecuador is one of 14 signatories of this treaty, and this treaty heavily influences its foreign and diplomatic affairs. The fact that neither the United Kingdom nor Sweden is bound to this treaty, questions either party’s legal obligation to respect or even recognize Ecuador’s grant of asylum to subjects such as Julian Assange. Convention and Protocol Relating to the Status of Refugees The Convention Relating to the Status of Refugees (CRSR) is a United Nations multilateral treaty that defines a refugee, the rights of a refugee that is granted asylum and the responsibilities of any nation that provides asylum. Bilateral Extradition Treaty of 1880 Between UK and Ecuador The extradition treaty the UK and Ecuador are dually bound to outlines the foundation of extradition between the two entities. The treaty respects the OAS Convention of Diplomatic Asylum and its terms that the United Kingdom is not bound to, which causes controversy between the two parties. It is also noteworthy that the treaty denotes that Ecuador is one of few nations that do not extradite their own nationals. Convention on Extradition Between The United States of America and Sweden 7 This document provides the terms of the Extradition Treaty between the United States and Sweden. It is a document that causes debate regarding the duty of Sweden to extradite Julian Assange to the United States, as it is argued that the terms of the convention exclude the case of Julian Assange. Council Framework Decision on the European Arrest Warrant and the Surrender Procedures Between Member States This Council Framework Decision of 13 June, 2002 provides an encompassing understanding of the European Arrest Warrant including the definition, scope, and obligation to execute the warrant. It also includes the grounds for optional and mandatory non-execution of the warrant as well as the procedures to be taken during the surrender of an extradited individual from one entity to another. This document specifies the basis on which the United Kingdom should extradite individuals to nations part of the European Union. VII- Useful Links 1. http://www.government.se/sb/d/2710/a/15435 2. https://www.gov.uk/extradition-processes-and-review 3. http://www.unog.ch/80256EDD006B8954/(httpAssets)/7F83006DA90AAE7FC1256F260034B806 /$file/Vienna%20Convention%20(1961)%20-%20E.pdf 4. http://www.oas.org/juridico/english/treaties/a-46.html 5. http://www.unhcr.org/3b66c2aa10.html 6. http://internationalextraditionblog.files.wordpress.com/2010/12/us-sweden-extradition-treaty- 14-ust-1845.pdf 7. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117680/european -arrest-warrant.pdf 8. http://justice4assange.com/extraditing-assange.html#UKVETO VIII- Bibliography "About WikiLeaks." WikiLeaks. Wikileaks.org, 5 July 2011. Web. 12 July 2014 "Australia Secretly Censors Wikileaks Press Release." WikiLeaks.org. Web. 12 July 2014 Baker, Scott, David Perry, and Anand Doobay. "A Review Of The United Kingdom's Extradition Arrangements." n. pag. Gov.uk. 30 Sept. 2011. Web. 12 July 2014 Collins, Nick. "WikiLeaks: Guilty Parties 'should Face Death Penalty'" Telegraph.co.uk. 1 Dec. 2012. Web. 12 July 2014 Davies, Lizzy, and Jo Adetunji. "Julian Assange Granted Asylum by Ecuador - as It Happened." Theguardian.com. Guardian News and Media, 16 Aug. 2012. Web. 12 July 2014 8 Davies, Nick. "10 Days in Sweden: The Full Allegations against Julian Assange." The Guardian. Guardian News and Media, 18 Dec. 2010. Web. 10 July 2014 "Definition of Extradition." Merriam Webster. Web. 12 July 2014 "Definition of Journalist." Merriam Webster. Web. 12 July 2014 Dorling, Philip. "US Calls Assange 'enemy of State'" The Sydney Morning Herald. Web. 12 July 2014 "Ecuador Grants Asylum to Julian Assange. (Press Conference)." WikiLeaks.org. 17 Aug. 2012. Web. 12 July 2014 "Ecuador Offers Asylum to WikiLeaks Founder." The Jerusalem Post. 30 Nov. 2011. Web. 12 July 2014 "Ecuador to Continue Assange Asylum." BBC News.17 June 2013. Web. 12 July 2014 "Extraditing Assange." Justice For Assange. Justice4assange.com, Web. 8 July 2014 "Extradition for Criminal Offences." Swedish Government. Web. 12 July 2014 Freeman, Colin. "Rape Claim against Wikileaks Founder Julian Assange Withdrawn." Telegraph.co.uk. 21 Aug. 2010. Web. 12 July 2014 Green, David A. "The Legal Mythology of the Extradition of Julian Assange." New Statesman. 3 Sept. 2012. Web. 12 July 2014 Hall, Eleanor. "The World Today with Eleanor Hall." The World Today. Web. 12 July 2014 Kohn, Stephen M. "A Sad Day for the US If the Espionage Act Is Used against WikiLeaks." Theguardian.com. Guardian News and Media, 15 Dec. 2010. Web. 12 July 2014 "Law No. 65/2003 of 23 August." Portuguese Legislation in English. GDDC, Web. 12 July 2014 "President Lula Shows Support for Wikileaks (English/Español/Italiano Subtitles)." YouTube. Web. 12 July 2014 "Refugees." UNHCR. Web. 09 July 2014 "Wikileaks' Assange Refused Bail." BBC News., 8 Dec. 2012. Web. 12 July 2014 "WikiLeaks Introduction." WikiLeaks.org. Web. 12 July 2014.   
work_iqq5ckwupbegzpfgojzly2uo6m	----	Cultural Pluralism and Epistemic Injustice Göran Collste Linköping University Abstract For liberalism, values such as respect, reciprocity, and tolerance should frame cultural encounters in multicultural societies. However, it is easy to disregard that power differences and political domination also influence the cultural sphere and the relations between cultural groups. In this essay, I focus on some challenges for cultural pluralism. In relation to Indian political theorist Rajeev Bhargava, I discuss the meaning of cultural domination and epistemic injustice and their historical and moral implications. Bhargava argued that as a consequence of colonialism, “indigenous cultures” were inferiorized, marginalized, and anonymized. Although cultures are often changing due to external influences, I argue that epistemic injustice implies that a culture is forced to subjection, disrespected, and considered as inferior and that it threatens the dominated people’s epistemic framework, collective identity, and existential security. Finally, I refer to John Rawls’s theory of political liberalism as a constructive approach to avoid parochialism and Western cultural domination. Keywords cultural pluralism; epistemic injustice; liberalism; colonialism; historical justice; globalization; Rajeev Bhargava; John Rawls Introduction For liberalism, values such as respect, reciprocity, and tolerance should frame cultural encounters in multicultural societies. However, it is easy to disregard that power differences and political domination also influence the cultural sphere. In the age of colonialism, Europe controlled large parts of the world for more than 400 years. In this essay, I discuss cultural pluralism from this historical point of departure. In relation to Indian political theorist Rajeev Bhargava, I discuss the meaning of cultural domination and epistemic injustice and their historical and moral implications. Finally, I refer to John Rawls’s theory of political liberalism as a constructive approach to avoid parochialism and Western cultural domination. © 2019 Göran Collste, published by Sciendo. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 License. Journal of Nationalism, Memory & Language Politics Volume 13 Issue 2  DOI 10.2478/jnmlp-2019-0008 * Göran Collste, Linköping University, Centre for Applied Ethics, 58183 Linköping, Sweden; Goran. collste@liu.se Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 2 Journal of Nationalism, Memory & Language Politics 13(2) Culture is a broad and vague concept. In this essay, culture and cultural differences relate to questions of epistemic frameworks, religions, traditions, and political principles. It could be questionable to use such a broad concept of culture, but it does not pose a problem for my argument. Epistemic Injustice For many years, I was responsible for an international master’s program in applied ethics. I taught a course on globalization and global justice, and one aspect was global rectificatory justice: how can we understand global justice from the perspective of historical justice? What are the implications of colonialism for today’s global relations? Is the legacy of colonialism still visible? I raised the question whether colonialism had left any morally relevant traces in the present, and a student from Pakistan spoke out and explained with some anger in her voice: “Yes, certainly! Everything Pakistani is today considered of less worth compared to the West: we consider our own history as shameful and we feel that we are still slaves under the British rulers. These feelings have also a cultural impact today; to be beautiful is to have blond hair, not black, to be civilized is to eat with knife and fork, not to eat in our traditional way, and our traditional languages are superseded by English.” The student from Pakistan felt that her culture is of less worth than the Western. This experience has its background in the history of colonialism: a history of domination, exploitation, and marginalization. The problem she points at has several ethical aspects. First, her basic sense of self-respect is violated; second, she does not perceive herself as equal to the “Western”; and third, her autonomy, i.e. her capability to determine her life and destiny, is put in question by her cultural heritage. Hence, the experience of being subject to cultural domination threatens her human dignity, equality, and autonomy. The story told by the master student illustrates what Rajeev Bhargava calls “epistemic injustice” (Bhargava 2013). Enduring social relations of the superior and subordinate has a tendency to create images of the Other and of oneself, and these images are shared by both the superior and the subordinate. We can notice this phenomenon in the history of class relations, gender relations, race relations, and colonial relations. In the history of colonialism, the master, the white, is looked up to and the servant, the slave, the colored, is someone to look down on. Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 3 Göran Collste Cultural Pluralism and Epistemic Injustice Cultural images stamped by colonialism have been analyzed in postcolonial studies (Said 2003, Loomba 2005). I here limit my discussion to Bhargava’s ideas of how colonialism implied epistemic injustice. Colonialism meant occupation of lands and a flow of resources from the colonies to the colonial powers, disempowering the former and enriching the latter. It also presupposed physical violence to keep the subaltern in place. However, colonialism implied more than that. Cultures and minds were also “colonized,” according to Bhargava. When trying to explain and theorize what colonization of cultures and minds means, Bhargava introduced the concept of “epistemic framework.” He defined it as follows: “An epistemic framework is a historically generated, collectively sustained system of meanings and significance, by reference to which a group understands and evaluates its individual and collective identity” (Bhargava 2013, 401). An epistemic framework helps us to interpret, understand, and categorize our impressions and experiences, so that they are manageable and possible to communicate and assess. Bhargava’s definition also emphasizes the importance of an epistemic framework for identity formation (individual and collective). A shared epistemic framework is important – indeed necessary – for any social group, such as ethnic, cultural or religious group. It provides basic hermeneutical tools for understanding the world and ourselves. An epistemic framework is also a hermeneutical resource for individuals to interpret and respond to new situations. According to Bhargava, epistemic injustice means that “concepts and categories” providing self-understanding and orientation are replaced or marginalized by a dominant power, in his case the colonizer. It was, Bhargava wrote, “... important/for the colonizer/to conquer not only the land and goods of the colonized but also their culture and minds” (Bhargava 2013, 414). How did this materialize? According to Bhargava, cultural and epistemic injustice can take different forms and the epistemic framework of the colonized was overthrown and lost by different processes. First, one form of epistemic injustice is when the dominant epistemic categories are the ones of the colonizers and the traditional, domestic, historical and cultural traditions become “scattered and diffused.” Bhargava wrote, “If the members of a group are denied access to their own culture then they suffer from cultural injustice” (Bhargava 2007, 218). Another form of epistemic injustice implies that the epistemic framework of the colonized is preserved, but it is considered of less worth and is inferior and marginalized in the society. A third form of epistemic injustice implies that the content of Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 4 Journal of Nationalism, Memory & Language Politics 13(2) the colonized epistemic framework is distorted. Bhargava gave an example: For the colonizer, the colonized appeared as a collective, a mass of people and not as individuals. They then transferred this view to the epistemic framework of the colonized, portraying it falsely as “collectivist” (Bhargava 2007, 231). This resulted in colonial policies “... based on the idea that the conception of an individual was simply absent among the colonized and that only group identity mattered in their traditions” (Bhargava 2013, 415). So, in sum, according to Bhargava, epistemic injustice implies that the local epistemic framework is dissolved, marginalized, or distorted. Why then was it important to conquer the minds of the colonized? It is because, in this way, they overtook views and values of the colonizers. They internalized them, and they then saw themselves as inferior and colonialism as beneficial and fair. Cultures, epistemic frameworks, and traditions are constantly changing. This is not the problem Bhargava wanted to highlight. No, the moral problem lies in the fact that the “... disapproval stems from the fact that this change is partly orchestrated by an authority with enormous political and economic power ...” (Bhargava 2015, 415). Thus, epistemic injustice was an integrated part of the colonial venture. Bhargava managed to provide a theoretical explanation of the experience of my master student. However, his texts also raised some questions. The first question is what exactly his argument refers to. Bhargava argued that as a consequence of colonialism, “indigenous cultures” were inferiorized, marginalized, and anonymized. This is a very general statement. One could question whether his analysis is equally valid for all kinds of cultural manifestations (academic, religious, literary, folkloristic, etc.) or if there are cultural zones that are more or less resilient and then, if there are cultural zones that could resist colonization better than others. Although the three continents Africa, Asia and Latin America were colonized, they were affected in different ways. For example, in contrast to Africa, India’s religious life seems to have been rather unaffected by British colonialism. In English school books for Indian children, Hinduism was represented in a distorted form and the representation was shaped by Christian presuppositions and categories (Balaji 2015). One could even say that Hinduism, as a religion, did not exist before it was so constructed by Western scholars. However still, the religious life of Indians, as well as customs and family life, was rather unaffected by colonialism. In Africa, on the other hand, the indigenous religions were to a large extent superseded by Christianity, although Christianity with an African stain. Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 5 Göran Collste Cultural Pluralism and Epistemic Injustice Furthermore, Bhargava argued that “... every group must have access to its own systems of meanings and interpretations ...” and they form “epistemic communities” (Bhargava 2013, 414). Bhargava’s theory needs clarifications. First, it is not clear what he means by a “group” and a “community.” For Bhargava, the colonization of India led to the epistemic domination of the colonizer and epistemic marginalization of indigenous Indian epistemic frameworks. Although it makes sense to speak of Indian indigenous cultures including not only Hindus but also Sikhs, Muslims, etc. having common ethos, habits, rituals, etc., the precolonial Indian society was also divided into castes, with – possibly – their own epistemic frameworks and forming their own epistemic communities.1 Thus, the idea of different epistemic communities does not only refer to different ethnic groups or nations but also to religious and social groups. While an epistemic framework refers to how a group “understands and evaluates its individual and collective identity,” it seems that, for example, also socialism, feminism, and Catholicism could be described as epistemic frameworks. This opens up for multiple and overlapping epistemic frameworks; for example, an Indian socialist refers to both an Indian and a socialist epistemic framework and an African Catholic to both an African and a Catholic epistemic framework. As we noticed, the idea of epistemic injustice presupposes relations of inequality and domination. Drawing on Philip Pettit’s analysis of political domination, Amandine Catala introduced the term “hermeneutical monopoly” when a minority in a society is “hermeneutically dominated by a majority.” Then, the minority lacks the resources to raise their voices in the public discourse and their views are dismissed by the majority (Catala 2015, 430). Hence, epistemic domination is one form of domination in parallel to other forms, such as economic and political. However, when Catala spoke of cultural and ethnical minorities in Western countries, Bhargava spoke of dominated majorities in colonized nations. Second, the idea that each group has its own “... system of meanings and interpretations ...” could be interpreted as implying a kind of relativism, because if each group has its own epistemic framework, it is difficult to see how they could communicate with each other: We know the world from our epistemic framework and you from yours and there is no way your interpretation could challenge ours. Without doubt, such a view would have some very problematic epistemic implications. However, Bhargava did not adhere to relativism because he also argued for the possibility of “biculturalism,” which means a “potentially common tradition.” Yes, he even foresaw “... the renewal of western traditions by non-western 1 See Fricker (2007) and Catala (2015) for analyses of epistemic dominations within societies. Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 6 Journal of Nationalism, Memory & Language Politics 13(2) people ...” (Bhargava 2013, 416-417). Hence, epistemic frameworks differ and overlap and communication is possible. In fact, there are reasons to believe that the Indian and Western traditions can co-exist and even integrate. Liberal ideas inspired the leaders of the new nation after independence from Britain, in particular Nehru who said “I am the last Englishman to rule in India.” Progress and Cultural Change Bhargava argued that colonialism implied that local cultures were marginalized. But are not cultures normally in a state of constant change? When we look at history, we find many examples of how one culture has been superseded by another. Is that always something to regret? Perhaps, the new culture is preferable? Was it for example a misfortune that Christianity superseded the Roman religion in the first centuriesy AD or that Islam superseded the Arabic religions in the sixth to seventh centuries? What was lost and what was gained? Did perhaps the new religion and culture offer an enhanced collective identity and existential security compared to the old ones? In line with Charles Taylor, one could presume that cultures have intrinsic value. He wrote: “... it is reasonable to suppose that cultures that have provided the horizon of meaning for large numbers of human beings, of diverse characters and temperaments, over a long period of time – that have, in other words, articulated their sense of the good, the holy, the admirable – are almost certain to have something that deserves our admiration and respect, even if it is accompanied by much that we have to abhor and reject.” (Taylor 1994, 72-73). On the other hand, even if we acknowledge the intrinsic value of cultures, it does not necessarily mean that all cultures have equal value. Brian Barry wrote: “... some cultures ... are better than others: more just, more free, more enlightened, and generally better adapted to human flourishing” (Barry 2001, 267). So, following Taylor, cultures are valuable because they provide “horizons of meaning,” but – as Barry argued – some are more valuable than others due to their capacity to make humans flourish. So, what is then morally wrong with epistemic injustice? Let me suggest the following answer. Epistemic injustice 1. implies that a culture is forced to subjection; 2. implies that the dominated culture is disrespected and considered as inferior; 3. implies a threat to the dominated people’s epistemic framework, collective identity, and existential security; and 4. implies an enduring sense of inferiority among the adherents of the old culture. Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 7 Göran Collste Cultural Pluralism and Epistemic Injustice So, epistemic injustice implies force and subjection. If a culture is valuable while it provides its adherents with instruments to interpret, understand, and provide meaning to their existence and, also in Taylor’s terms, articulate a sense of the good and holy, epistemic injustice is also morally wrong while it means an infringement of these valuable instruments and states of mind. Given that Bhargava’s description of the colonization of epistemic frameworks is correct, the indigenous cultures were dominated by force and were considered inferior, and the consequences were a loss of collective identity and a sense of existential insecurity among the colonized people. This sense of inferiority is enduring. Hence, the moral problem with epistemic injustice in the wake of colonialism is that it implied an enduring dominance and a sense of inferiority among the subaltern. Globalization and Epistemic Injustice Is then epistemic injustice in Bhargava’s sense a phenomenon of the colonial past – although with enduring consequences? Today, we live in an age traced by globalization. The meaning and impact of globalization are much discussed, and I will only focus on some aspects. To the present, globalization is not characterized by equality and reciprocity. Many facets of globalization mean the dominance of powerful economic organizations and multinational companies and a Westernization or Americanization of cultures and values. From this perspective, globalization implies neocolonization of cultures and minds. Globalization implies epistemic injustice in various forms, and I will distinguish between an apparent and a subtle form. The apparent form is illustrated by the global implementation of intellectual property rights, which is an example of globalization of parochial Western values at the expense of local and indigenous. Let me explain with the help of an example. One feature of the last decades’ globalization is the global commercialization of all sorts of goods, including medicines, herbs, and seeds. This was manifested by the so-called Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1994. According to the TRIPS agreement, intellectual property such as medicines and genetic material should be protected globally, and the TRIPS agreement was institutionalized when ratification of TRIPS became a condition for membership of the World Trade Organization (WTO). One of the controversial aspects of the global intellectual property regime is the extension of property rights to cover also traditional knowledge In a Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 8 Journal of Nationalism, Memory & Language Politics 13(2) number of cases, plants and herbs used for ages by traditional communities and indigenous peoples have been patented by Western firms. Here, traditional knowledge and communal ownership come into conflict with privatization and property rights. This value conflict is an example of when globalization means the domination of Western values at the expense of the values of weaker and more vulnerable communities and people (Shiva 2001, Commission 2002, Anderson 2015). Through the many ways that Western ideals are permeating the world through adverts, news media, and Hollywood films, globalization also implies a subtler form of cultural injustice. Here, the Western ideals of beauty, life style, and consumption are becoming global norms, which on the receiving side of the globe may lead to a contempt for one’s own culture and tradition. As a consequence, many women in Africa and Asia are whitening their skin and straightening their hair to live up to the Western ideals of beauty. According to a report from the University of Cape Town, 77% of women in Nigeria and 35% of women in South Africa use skin lighteners (http://www.bbc.com/ news/world-africa-20444798). So, what then are the remedies for epistemic injustice in the past and how can we avoid that also globalization will imply epistemic injustice? First and probably most important is that intellectuals in the countries who are subjects of epistemic injustice rediscover their own intellectual and epistemic traditions. This is also Bhargava’s strategy. In his ambition to rediscover the Indian tradition in political theory, he studied the edicts of the progressive Emperor Asoka from the third century BC. Similarly, African philosophers are developing the idea of Ubuntu, which expresses deep values of community in the African tradition (Metz and Gaie 2010). When commenting on the discussion of global justice, the Indian theorist Aakash Singh wrote: “[...] as the global justice debate amplifies unreflexively this increasingly discredited tendency of the wider social sciences to favour the epistemology and centrality of Anglo-American political theory/ theorists, generally excluding non-western voices from participation. Here, the term ‘global’ seems to signify outward expansion from the center; our attempt to extend our conception/demands of justice to them. Many non-western scholars, therefore, see the global justice debate as a recapitulation of the characteristic practices and attitudes of colonial liberalism” (Aakash 2014). What can we who are ancestors of the colonizers and who represent the global rich do today? How can we avoid “one-directional” communication, and how Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 9 Göran Collste Cultural Pluralism and Epistemic Injustice can we avoid epistemic injustice in the wake of globalization? As philosophers, Nancy Fraser and Axel Honneth have emphasized, “recognition” is a central concept here. Fraser wrote, “Misrecognition ... means social subordination in the sense of being prevented from participating as a peer in social life” (Fraser 2001, p.24). Misrecognition seems to be one condition for epistemic injustice. Hence, the social subordination of the Other could be overcome by recognition, i.e. to ensure that everyone has an equal say in conversations and dialogs. Listening to the Other follows from recognition. To listen is more than to hear. Michael Purdy defined listening as “... the active and dynamic process of attending, perceiving, interpreting, remembering, and responding to the expressed (verbal and nonverbal) needs, concerns, and information offered by other human beings” (Purdy 1991). Listening is a crucial condition for communication and a requirement for reciprocity, i.e. for “fair terms of cooperation” to quote Rawls (Rawls 1993, 16). Avoiding Parochialism As Aakash reminds us, in order to remedy for the colonial past and avoid epistemic injustice in the present, we have to reconsider the way we philosophize about global justice and international relations. In The Law of Peoples (1999), which is a treaty on international relations and justice, John Rawls took much efforts in developing a theory characterized by non-parochialism, meaning that the theory should avoid cultural biases and one-sidedness and instead accept pluralism and respect different traditions of how a society is formed. Already in his work Political Liberalism from 1993, Rawls distanced himself from a view of justice that universalizes western liberal values. He admits that his own theory of justice from 1971 suffers from this limitation. For example, the principle of moral autonomy developed in A Theory of Justice “... fails to satisfy the criterion of reciprocity required of reasonable political principles ...” (Rawls 1996, xlv). As an alternative, in Political Liberalism, he developed a theory of reasonable pluralism and justification of a political conception of justice based on an “overlapping consensus” of different – what he called – “comprehensive doctrines,” and comprehensive liberalism is one of them (ibid xlii). This implies that basic political institutions and rights are justified by all reasonable doctrines, although the reasons will differ between different doctrines. In Political Liberalism, Rawls’s aim was to develop criteria of justification of a theory of justice in plural societies. The aim of The Law of Peoples (1999) was to develop a theory of international relations in a plural world, and Rawls Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 10 Journal of Nationalism, Memory & Language Politics 13(2) raises the question how to achieve an inclusive Society of Peoples, i.e. a global community of peoples who cooperate and live peacefully together. According to Rawls, not only liberal peoples but also – what he called – “decent hierarchical peoples” are full members of the Society of Peoples. He takes the conceived Islamic people Kazanistan as his case in point. Islam is the favored religion, and only Muslims can have governmental positions. Other religions are tolerated, and their believers have civic rights. They are also included in a “decent consultation hierarchy,” and they are able to influence the political decisions from this position (Rawls 1999, 75-77). However, Kazanistan deviates in important respects from liberal ideals. The contrast between a cosmopolitan, liberal global order and the Society of Peoples that Rawls favors became clear when Rawls discussed human rights. In The Law of Peoples, Rawls only included “urgent human rights,” i.e. freedom from slavery, liberty of conscience and security of ethnic groups from mass murder and genocide. However, he did not include equal individual rights or liberal democracy (ibid, 78-81). The reason as he explained it is that “Human rights, as thus understood, cannot be rejected as peculiarly liberal or special to the Western tradition. They are not politically parochial” (ibid, 65). Rawls’s theory has been the target of critique by some liberals. Why, they ask, should we be satisfied with anything less than a society that implements full and universal human rights, and why should we in the long run tolerate political systems that are hierarchical and that distinguish between different ethnical and religious groups with respect to rights of influence? Why should non-Muslim citizens in Kazanistan accept the role as secondary members of their society? (Li 1995, Nickel 2006) These critical questions are indeed challenging. On the other hand, with Bhargava’s critique of epistemic injustice in mind, there are good reasons for Rawls’s position. In view of the history of colonialism – and the present globalization – we should be more cautious to assume that Western values, Western political systems, and Western political principles are universally valid and applicable. We must acknowledge that there are other political cultures and traditions that are acceptable and worthy of respect. Following Rawls, this acceptance of different political traditions does not mean that liberals should abstain from working for extension of human rights in any society they live in; only that liberalism is not a necessary requirement for inclusion in the Society of Peoples, the global community. This does not imply that a wider conception of human rights necessarily mirrors a Western or liberal comprehensive doctrine. The main human rights treaties have been ratified by a large majority of the nations of the world, and Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 11 Göran Collste Cultural Pluralism and Epistemic Injustice as a German philosopher Heiner Bielefeldt remarked, human rights can be understood “... as the centre of a cross-cultural ‘overlapping consensus’ on basic normative standards in our increasingly multi-cultural societies.” No, what Rawls’s proposal might avoid is a “... cultural essentialist occupation” of human rights (Bielefeldt 2016, 86). Should we then accept this more limited human rights conception as the ground for a Society of Peoples or should we assume a broader liberal conception of human rights? It is not an easy choice. However, it seems to me that Rawls’s position avoids that faults of the past are repeated in the present. We should bear in mind that Rawls does not accept any kind of hierarchical societies. They have to live up to the conditions of respecting urgent human rights, i.e. respect for human beings’ freedom of thought and organization and their right to influence the government (although in different ways and perhaps within different institutions). Conclusion The aim of this essay was to discuss the meaning of epistemic and cultural injustice and how to overcome it in the present age characterized by globalization and the encounter of different cultures. The history of colonialism is a history of enduring cultural domination and epistemic injustice. Epistemic injustice is prima facie problematic from a moral point of view, while it implies domination, disrespect, a sense of inferiority and erosion of dominated people’s epistemic framework, collective identity, and existential security. Today’s possibilities of cultural encounters and emerging multicultural societies offer a potential for learning, cultural enrichment and plurality. However, the realization of this potential presupposes that we recognize the others and listen to their beliefs and values. As Rawls showed, avoiding parochialism is both necessary and possible in present plural societies. References Anderson, Jane.2015. Indigenous Knowledge and Intellectual Property Rights. International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 11, Elsevier. pp 769- 779. Balaji, Murali. 2018. “The Colonized Mind. Thoughts on colonialism, Christianity and the relinquishment of Hindu consciousness.” Hinduism Today. https://www.hinduismtoday. com/modules/smartsection/item.php?itemid=3103. Barry, Brian. 2002. Culture and Equality. An Egalitarian Critique of Multiculturalism. Har- vard: Harvard University Press. Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 12 Journal of Nationalism, Memory & Language Politics 13(2) Bhargava, Rajeev. 2007. “How Should We Respond to the Cultural Injustices of Colonial- ism?” In Reparations: Interdisciplinary Inquiries, edited by J. Miller and R. Kumar. Oxford: Oxford University Press. Bhargava, Rajeev. 2013. “Overcoming the Epistemic Injustice of Colonialism.” Global Policy 4 (4): 413-417. Bielefeldt, Heiner. 2016. “‘Western’ versus ‘Islamic’ Human Rights Conceptions? A Critique of Cultural Essentialism in the Discussion on Human Rights,” In Ethics and Communica- tion. Global Perspectives, edited by G. Collste. London: Rowman & Littlefield International. Catala, Amandine. 2015. “Democracy, Trust, and Epistemic Injustice.” The Monist, 98 (4): 424-440. Collste, Göran. 2015. Global Rectificatory Justice. Basingstoke: Palgrave. Fricker, Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press Kymlicka, Will. 1996. Multicultural Citizenship A Liberal Theory of Minority Rights. Oxford: Oxford University Press Metz, Thaddeus and Gaie Joseph, B. R. 2010. “The African Ethic of Ubuntu/Botho: Implica- tions for Research on Morality.” Journal of Moral Education 39 (3): 273-290. Nickel, James. 2006. “Are Human Rights Mainly implemented by Intervention?” In Rawls’s Law of Peoples. A Realistic Utopia?, edited by R. Martin and D. Reidy. Oxford: Blackwell Publishing. Rawls, John. 1996. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999. The Law of Peoples. Cambridge: Harvard University Press. Sen, Amartya. 1999. Development as Freedom. Oxford: Oxford University Press. Singh, Aakash. 2013. “Deparochializing the Global Justice Debate, Starting with Indian Po- litical Theory.” Global Policy 4 (4): 418-419 Li, Xiarong. 1995. “A Critique of Rawls’s Freestanding Justice.” Journal of Applied Philosophy, 12 (3): 263-271. Taylor, Charles. 1994. “The Politics of Recognition.” In Multiculturalism: Examining the Poli- tics of Recognition, edited by Amy Gutman. Princeton: Princeton University Press. Unauthentifiziert | Heruntergeladen 01.10.19 07:33 UTC 
work_irdykv4m6nevbnan33xjypeui4	----	International Journal of Recent Technology and Engineering (IJRTE) International Journal of Recent Technology and Engineering (IJRTE) ISSN: 2277-3878, Volume-8 Issue-2S10, September 2019 647 Published By: Blue Eyes Intelligence Engineering & Sciences Publication Retrieval Number: B11150982S1019/2019©BEIESP DOI:10.35940/ijrte.B1115.0982S1019  Abstract: Perceptions of organizational justice constitute an important heuristic in organizational decision-making, as research relates it to job satisfaction, turnover, leadership, organizational citizenship, organizational commitment, trust, customer satisfaction, job performance, employee theft, role breadth, alienation, and leader-member exchange. The public sector in UAE is the focus of this paper. Applying the concept of organizational justice (distributive justice, procedural justice, interactional justice) to examine the effect of it on employees’ satisfaction. The data was collected from 452 officers from 7 sectors in the ministry of interior in UAE and analysed using structural equation modelling via SmartPLS 3.0. There were three main results: first, distributive justice has a positive impact on job satisfaction; second, procedural justice is significantly predicting job satisfaction; third, interactional justice has a significant impact on job satisfaction. The proposed model explained 33.7% of the variance in job satisfaction. Theoretical and practical implications are also provided. Keywords: Organizational justice; distributive justice; procedural justice; interactional justice; job satisfaction. I. INTRODUCTION The effects of globalization, and competition on an international level, have rendered the recruitment, maintenance, and organization of resources, decisive factors for success in the public sector domain. In the services sector, it is acknowledged that the management of human resources, in particular, is a crucial factor. This is attributed to the fact that the services offered, and the supplier of these services, are, to a large extent, interconnected. In this regard, enhancing an employee’s job satisfaction, dedication to the organization and motivation, will serve to promote his/her extra-role behaviour, by way of organizational citizenship behaviour. This, in turn, will contribute towards an improved standing of the public sector organization concerned, in terms of competitiveness. The close relationship between job satisfaction, and performance, is particularly evident in the service industry. Revised Manuscript Received on September 25, 2019 Rashed ALNEYADI, Faculty of Business and Accountancy, Lincoln University College, Selangor, Malaysia Mohammed NUSARI, Faculty of Business and Accountancy, Lincoln University College, Selangor, Malaysia Ali Ameen, Faculty of Business and Accountancy, Lincoln University College, Selangor, Malaysia Amiya Bhaumik, Faculty of Business and Accountancy, Lincoln University College, Selangor, Malaysia In the field of organizational research, justice perceptions are viewed as explanatory variables. Organizational justice defines the perspective of individuals (or groups), with regards to the impartiality of an organization’s conduct towards them, and the behavioural response of these individuals (or groups) towards this perspective. The extant literature classifies the three aspects of justice perceptions as distributive justice, procedural justice and interactional justice. It has been established that perceived organizational justice is a significant antecedent to organizational citizenship behaviour. While the impact of justice perceptions on work attitude and work behaviour is well-documented in western literature, the same cannot be said for the situation in the United Arab Emirates (UAE). Here, studies focusing on this subject matter have, unfortunately, been rather few and far between. II. LITERATURE REVIEW A. Job Satisfaction (JS) Job satisfaction has to do with the attitudes or opinions of employees regarding their work specifically or their work setting as a whole, and their general sentiment as regards to their job requirements. The origins of the job satisfaction concept can be traced to an investigation conducted in the 1920s, which came to be known as the Hawthorne studies. The outcomes from this endeavour revealed that the emotions of a worker, has a significant effect on his/her behaviour at work. The job satisfaction and productivity levels of an employee are determined principally by his/her social and psychological circumstances. Job satisfaction refers to an individual’s response to his/her working situation. This response arises from a comparison between the real situation, and the situation that is anticipated, craved and required. Personal in nature, this response is indicative of the degree of contentment an employee experiences with regards to his/her job. B. Organizational Justice (OJ) Distributive justice has its roots in the equity theory. This theory focuses on the perception of a worker concerning his/her treatment, in comparison to other workers. The equity theory asserts that the contributions of employees towards the organization come in the form of education, effort and experience, among others. Impact of Organizational Justice (Distributive Justice, Procedural Justice, and Interactional Justice) on Job Satisfaction Rashed Alneyadi, Mohammed Nusari, Ali Ameen, Amiya Bhaumik Impact of Organizational Justice (Distributive Justice, Procedural Justice, and Interactional Justice) on Job Satisfaction 648 Published By: Blue Eyes Intelligence Engineering & Sciences Publication Retrieval Number: B11150982S1019/2019©BEIESP DOI:10.35940/ijrte.B1115.0982S1019 In view of these contributions, employees are entitled to returns in the way of salaries and promotions. The perceived ratio of what an employee receives as a result of his/her work, in comparison to the degree of effort put into the said work, serves to ascertain whether the situation is one of equity, or inequity. Put plainly, workers anticipate a response from the management that commensurate with their level of contribution in terms of work. Procedural justice represents another route towards the assessment of impartiality with regards to decisions concerning remunerations, or decisions related to administrative issues. This concept contemplates the approach employed to arrive at these decisions. Procedural justice emphasizes on the perceived fairness, of the course adopted to decide on the severity of the penalty, or the scale of the remuneration doled out. Thus, the approach adopted to realize the results, may turn out to be of more significance, than the results themselves. Interactional justice defines the degree of perceived fairness regarding the manner in which an employee is cared for by the establishment. Unlike procedural justice, the interaction occurring in interactional justice is of a more informal nature. It has to do with the level of integrity, compassion and respect displayed by management, during communications with employees. Procedural justice differs from interactional justice in that with the latter, the emphasis is on perceived justice, or injustice. Several investigations have delved into the connection between the abovementioned modes of organizational justice, and their impact on work issues such as turnover intention, organizational commitment, organizational citizenship behaviour and job satisfaction. This led to proposal of the hypotheses as below: H1. Distributive justice significantly has a positive impact on job satisfaction. H2. Procedural justice significantly has a positive impact on job satisfaction. H3. Interactional justice significantly has a positive impact on job satisfaction. Figure 1 shows the proposed study model which was derived from the social exchange theory and contains three independent variables (distributive justice, procedural justice, and interactional justice) and one dependent variable (job satisfaction). Fig. 1 The proposed model III. RESEARCH DESIGN AND METHODOLOGY A. Instrument Development Equipped with information available in relevant literature, we applied a multi-item Likert scale for a 23-item questionnaire. As recommended in previous investigations, the constructs were gauged with the use of a 5-point Likert scale [1-3], with 5 signifying ‘Strongly Agree’ and 1 signifying ‘Strongly Disagree’. Taking into consideration the fully Arab-speaking composition of respondents, the items in the questionnaire were accurately translated from English to Arabic. Back translation, a procedure frequently applied in cross-cultural surveys, was employed for this purpose. We referred to previous studies for the gauging of the variables (Appendix A). B. Data Collection Between April, 2018 and August, 2018, 600 self-administered questionnaires were handed out to government workers. Of these, 480 were returned, and 452 were considered for our survey. This sample size is similar to that used by Krejcie & Morgan (1970) [4] for their study in this area. Our realized response rate of 60.42% can be deemed excellent, when compared to those of previous investigations, documented in relevant literature. Of the 28 removed questionnaires, 21 were found to have omitted answers to more than 15% of the questions, three were outliers, and 4 came with a straight lining. IV. Data Analysis and Results The SmartPLS 3.0 software was used to examine our model through partial least squares (PLS) variance-based structural equation modelling (VB-SEM). A two-stage analytical procedure was utilized for (a) evaluating the measurement model (validity and reliability), and (b) evaluating the structural model (hypothesized relationships analysis). A. Descriptive analysis Job satisfaction score the highest with mean 3.356 out of 5.0, with a standard deviation of 1.148. Distributive justice score the lowest with mean 2.991 out of 5.0, with a standard deviation of 0.944, as Table 1 shows. B. Measurement Model Assessment The measurement model was assessed for construct reliability and validity. The values of every single Cronbach’s alpha surpassed the targeted value of 0.7 [5]. Additionally, the test for construct reliability revealed that every composite reliability (CR) value, also went beyond 0.7 [6]. Factor loadings were used to evaluate indicator reliability. Except for IJ5 and IJ6, the values recorded exceeded the sought after value of 0.7. IJ5 and IJ6 were subsequently discarded from the scale, due to depleted loading values. Convergent validity was evaluated by way of average variance extracted (AVE). The values attained topped the objective value of 0.50. These evaluation results are exhibited in Table 1. Table 1: Measurement assessment results International Journal of Recent Technology and Engineering (IJRTE) ISSN: 2277-3878, Volume-8 Issue-2S10, September 2019 649 Published By: Blue Eyes Intelligence Engineering & Sciences Publication Retrieval Number: B11150982S1019/2019©BEIESP DOI:10.35940/ijrte.B1115.0982S1019 Constructs Item Loading (> 0.5) M SD α (> 0.7) CR (> 0.7) AVE (> 0.5) Distributive Justice (DJ) DJ1 DJ2 DJ3 DJ4 DJ5 0.791 0.877 0.894 0.904 0.877 2.991 0.944 0.919 0.939 0.756 Procedural Justice (PJ) PJ1 PJ2 PJ3 PJ4 PJ5 PJ6 0.916 0.837 0.908 0.889 0.829 0.885 3.131 1.043 0.940 0.953 0.771 Interactional Justice (IJ) IJ1 IJ2 IJ3 IJ4 IJ5 IJ6 IJ7 IJ8 IJ9 0.853 0.789 0.833 0.786 Deleted Deleted 0.844 0.713 0.709 2.997 0.729 0.900 0.921 0.626 Job Satisfaction (JS) JS1 JS2 JS3 0.934 0.927 0.927 3.356 1.148 0.921 0.950 0.864 Note: M=Mean; SD=Standard Deviation, α= Cronbach’s alpha; CR = Composite Reliability, AVE = Average Variance Extracted. Key: DJ: Distributive Justice, PJ: Procedural Justice, IJ: Interactional Justice, JS: Job Satisfaction The discriminant validity of the measurement model was assessed through cross-loadings and the Fornell-Larcker criterion. Cross-loadings are typically the initial step for tests on the discriminant validity of indicators. The requirements for discriminant validity in our model were considered met, as the indicators’ outer loadings on a construct, surpassed its cross-loadings with other constructs. The evaluation results for discriminant validity through cross-loadings are displayed in Table 2. Table 2: Results of discriminant validity by the cross loading DJ PJ IJ JS DJ1 0.791 0.503 0.417 0.357 DJ2 0.877 0.596 0.515 0.416 DJ3 0.894 0.618 0.530 0.437 DJ4 0.904 0.640 0.609 0.500 DJ5 0.877 0.612 0.515 0.418 PJ1 0.635 0.916 0.576 0.494 PJ2 0.549 0.837 0.499 0.389 PJ3 0.612 0.908 0.569 0.503 PJ4 0.638 0.889 0.566 0.469 PJ5 0.532 0.829 0.522 0.412 PJ6 0.637 0.885 0.553 0.471 IJ1 0.477 0.485 0.853 0.398 IJ2 0.401 0.403 0.789 0.344 IJ3 0.435 0.443 0.833 0.365 IJ4 0.407 0.414 0.786 0.352 IJ7 0.488 0.503 0.844 0.411 IJ8 0.509 0.566 0.713 0.404 IJ9 0.561 0.592 0.709 0.450 JS1 0.457 0.483 0.453 0.934 Impact of Organizational Justice (Distributive Justice, Procedural Justice, and Interactional Justice) on Job Satisfaction 650 Published By: Blue Eyes Intelligence Engineering & Sciences Publication Retrieval Number: B11150982S1019/2019©BEIESP DOI:10.35940/ijrte.B1115.0982S1019 JS2 0.473 0.483 0.463 0.927 JS3 0.446 0.492 0.473 0.927 Key: DJ: Distributive Justice, PJ: Procedural Justice, IJ: Interactional Justice, JS: Job Satisfaction . Table 3 shows the results for discriminant validity acquired through the Fornell-Larcker criterion. As can be gathered from this table, the square root of the AVEs on the diagonals (portrayed in bold) are higher than the correlations between constructs (matching row and column values). This indicates a clearer linkage between the constructs and their individual indicators, as compared to the other constructs in the model. A similar outcome was seen in which it was indicative of superior discriminant validity. The correlation of the exogenous constructs in our study was observed to be below 0.85 (Awang, 2014). In view of the above, the discriminant validity for all the constructs in our investigation can be deemed adequately met. Table 3: Results of discriminant validity by Fornell-Larcker criterion DJ IJ JS PJ DJ 0.869 IJ 0.601 0.791 JS 0.493 0.498 0.930 PJ 0.686 0.625 0.523 0.878 Note: Diagonals represent the square root of the average variance extracted while the other entries represent the correlation s. Key: DJ: Distributive Justice, PJ: Procedural Justice, IJ: Interactional Justice, JS: Job Satisfaction C. Structural Model Assessment The structural model can be tested by computing beta (β), R², and the corresponding t-values via a bootstrapping procedure with a resample of 5,000. Key: DJ: Distributive Justice, PJ: Procedural Justice, IJ: Interactional Justice, JS: Job Satisfaction Fig 2: PLS algorithm results Figure 2 and Table 4 depict the structural model assessment, showing the results of the hypothesis tests, with 3 out of the 3 hypotheses are supported. Distributive justice, procedural justice, and interactional justice significantly predict job satisfaction. Hence, H1, H2, and H3 are accepted with (tp <0.01), (tp <0.001), and (tp <0.001) respectively. The strength of the relationship between exogenous and endogenous constructs are measured by the standardised path coefficients, which in this case show that the direct effects of procedural justice on job satisfaction is much stronger than the influence of other variables. Thirty-four percent of the variance in job satisfaction is explained by distributive justice, procedural justice, and interactional justice. The values of R² have an acceptable level of explanatory power, indicating a substantial model. International Journal of Recent Technology and Engineering (IJRTE) ISSN: 2277-3878, Volume-8 Issue-2S10, September 2019 651 Published By: Blue Eyes Intelligence Engineering & Sciences Publication Retrieval Number: B11150982S1019/2019©BEIESP DOI:10.35940/ijrte.B1115.0982S1019 Table 4: Structural assessment results Hypothesis Relationship Std Beta Std Error t-value p-value Decision R² H1 DJ→JS 0.180 0.064 2.825 0.002 Supported 0.34 H2 PJ→JS 0.256 0.065 3.909 0.000 Supported H3 IJ→ JS 0.230 0.066 3.500 0.000 Supported Key: DJ: Distributive Justice, PJ: Procedural Justice, IJ: Interactional Justice, JS: Job Satisfaction V. DISCUSSION Based on the proposed model, this study improves the understanding of the role played by organizational justice in terms of distributive justice, procedural justice, and interactional justice in predicting job satisfaction among employees in government sector in UAE, and highlights relevant implications. The discussions are further detailed in the following. The study found that distributive justice positively affects job satisfaction among employees in government sector in UAE, this is supported by previous studies [7]. It is explained by the fact that the more the employee receive fair rewards with regard to responsibilities, education level, efforts, stress and the tension created by the job, and with regard to the fulfilled responsibilities. The more the employees are satisfied with the job and with the work he/she is doing. Furtherm the results revealed that procedural justice has a significant influence on job satisfaction among employees in government sector in UAE which is also supported by previous studies [8]. It is explained by the fact that the more the supervisors are neutral about decision making, listening to others before decision making, gather the right information related to the topic of decision making, give additional information when necessary, have their decisions implemented to everyone consistently, and they have the right to deny or accept the decision. The more the employees is satisfied with the job and with the work he/she is doing. Lastly, it was also found that interactional justice significantly predicts job satisfaction among employees in government sector in UAE, this is supported by previous studies. It is explained by the fact that the more the supervisors are polite and concerned for decisions about employee’s job, respectful and careful about decisions about employee’s job, sensitive to personal needs, give importance to personal rights, inform the employee about the implications of the decisions, have Logical explanations for decisions. The more the employees is satisfied with the job and with the work he/she is doing. VI. IMPLICATIONS, LIMITATIONS AND FUTURE DIRECTIONS The results highlighted that organizational justice a strong impact on its employees' overall job satisfaction because the organizational justice provides a fair treatment of the employees. Given that each individual highly receives the organizational justice they will be ensured that they will take his/her right in the salary, career development, compensation, job security, respect, and appreciation. As all the organization's resources have been distributed fairly as well as these resourced must be distributed based on proper and fair procedures and the interactional justice - including respect and appreciation - is essential to be achieved, admittedly, their employees are highly likely to develop great job satisfaction. Given that the employees' job satisfaction is greatly associated with the organizational justice, the top management in the organization has to measure the employees' perceptions of the organizational justice. The managers can evaluate these perceptions by using the current study's questionnaire. If the managers find the employees' feelings of the organizational justice are low, however, they developed high-quality distributive justice, procedural justice, and interactional justice. They should find the reasons of low perceptions of the organizational justice, perhaps the implications of these practices are not achieved properly. Despite its strengths, this study has a limitation that also suggest areas for future research. This study was limited by police officers of the interior ministry in UAE. In the future research, the researcher suggests to investigate the study hypotheses in other geographical areas, as well as, the sample should include public and private sector to increase the generalization. VII. CONCLUSION By way of conclusion, the main objective of this study was to deepen our understanding of the relationship between distributive justice, procedural justice and interactional justice, and job satisfaction. The perspectives of social exchange theory were applied to further develop our understanding of the link between the study variables. It has provided evidence from leading scholars in the field on the notion of ‘organizational justice’ and how it is essential to build the employees satisfaction. Regardless of various constraints to the study, the results have been encouraging, as it has managed to throw some lights on organizational justice in the public sector in the UAE. The results revealed that the three hypotheses are significant. The independent variables significantly explain 33.7% of job satisfaction. The implications of this study have been deliberated, some directions for future research have been suggested. Impact of Organizational Justice (Distributive Justice, Procedural Justice, and Interactional Justice) on Job Satisfaction 652 Published By: Blue Eyes Intelligence Engineering & Sciences Publication Retrieval Number: B11150982S1019/2019©BEIESP DOI:10.35940/ijrte.B1115.0982S1019 APPENDIX Appendix A Instrument for varibles Varible Measure Source Distributive Justice (DJ) DJ1: I receive fair rewards with regard to responsibilities in my organization. DJ2: I receive fair rewards with regard to education level in my organization. DJ3: I receive fair rewards with regard to the efforts in my organization DJ4: I receive fair rewards with regard to stress and the tension created by the job. DJ5: I receive fair rewards with regard to the fulfilled responsibilities in my organization. Procedural Justice (PJ) PJ1: My supervisor is neutral about decision making. PJ2: My supervisor is listening to others before decision making. PJ3: My supervisor is collecting the right information related to the topic of decision making. PJ4: My supervisor is giving additional information when necessary PJ5: My supervisor’s decisions are implemented to everyone consistently. PJ6: My supervisor has the right to deny or accept the decision. [10] Interactional Justice (IJ) IJ1: My supervisor is polite and concerned for decisions about my job. IJ2: My supervisor is respectful and careful about decisions about my job. IJ3: My supervisor is sensitive to personal needs for decisions about my job. IJ4: My supervisor is sincere for decisions about my job. IJ5: My supervisor gives importance to personal rights for decisions about my job. IJ6: My supervisor’s implications of the decisions about my job is told to me. IJ7: My supervisor’s explanation for the decisions related to my job. IJ8: My supervisor has Logic explanations for decisions taken about my job. IJ9: My supervisor has a clear explanation for decisions related to my job. [10] Job Satisfaction (JS) JS1: All things considered, I am satisfied with my job. JS2: I like my job. JS3: I am generally satisfied with the work I do in this job. REFERENCES 1. O. Isaac, Z. Abdullah, T. Ramayah & M. Mutahar Ahmed, (2017). Examining the Relationship between Overall Quality, User Satisfaction and Internet Usage: An Integrated Individual, Technological, Organizational and Social Perspective. Asian Journal of Information Technology, 16(1), pp. 100–124. 2. O. Isaac, Z. Abdullah, T. Ramayah, A. M. Mutahar & I. Alrajawy, (2017). Towards a Better Understanding of Internet Technology Usage by Yemeni Employees in the Public Sector: An Extension of the Task-Technology Fit (TTF) Model. Research Journal of Applied Sciences, 12(2), pp. 205–223. 3. O. Isaac, Z. Abdullah, T. Ramayah, & A. M. Mutahar, (2017). Internet usage, user satisfaction, task-technology fit, and performance impact among public sector employees in Yemen. The International Journal of Information and Learning Technology, 34(3), pp. 210–241. 4. R. V Krejcie & D. W. Morgan, (1970). Determining sample size for research activities. Educational and Psychological Measurement, 38, pp. 607–610. 5. V. R. Kannana & K. C. Tan, (2005). Just in time, total quality management, and supply chain management: understanding their linkages and impact on business performance. Omega: The International Journal of Management Science, 33(2), pp. 153–162. 6. R. B. Kline, (2010). Principles and practice of structural equation modeling (3rd ed.). New York: The Guilford Press. 7. Wolfe, S. E., Rojek, J., Manjarrez, V. M., Jr., & Rojek, A. (2018). Why does organizational justice matter? Uncertainty management among law enforcement officers. Journal of Criminal Justice, 54, 20-29. 8. Middelkamp-Hup MA, Pathak MA, Parrado C, Goukassian D, Rius-Diaz F, Mihm MC, et al. Oral Polypodium leucotomos extract decreases ultraviolet-induced damage of human skin. J Am Acad Dermatol. 2004; 51, pp. 910–8. 9. M. Abdulrab, A. R. Zumrah, Q. Almaamari, A. N. Al-Tahitah, O. Isaac, & A. Ameen, (2018). The Role of Psychological Empowerment as a Mediating Variable between Perceived Organizational Support and Organizational Citizenship Behaviour in Malaysian Higher Education Institutions. International Journal of Management and Human Science (IJMHS) Vol. 2. 10. Palaiologos, Anastasios & Papazekos, Panagiotis & Panayotopoulou, Leda. (2011). Organizational justice and employee satisfaction in performance appraisal. Journal of European Industrial Training. 35. 826-840. 
work_irhpkmrsi5gbpl2l3ayttftoy4	----	0701.indd 5 U svom radu autorka iznosi osnovne teori-jske postavke i diskusije o praktičnoj pri-meni restorativne pravde. Razmatra pitanja uvođenja i primene restorativne pravde u smislu postizanja ravnoteže interesa žrtve, društvene za- jednice i delinkventa. Ovaj pojam se defi niše nabra- janjem određenih aktivnosti uz poštovanje izvesnih standarda i principa u primeni. Takođe, izdvojene su vrednosti kojima teži restorativna pravda. Deo rada posvećen je standardima za primenu restor- ativne pravde. Važna je usklađenost tih standarda sa međunarodno usvojenim dokumentima o zaštiti osnovnih ljudskih prava. Ključne reči: restorativna pravda, standardi, prin- cipi, retributivna pravda Uvod U današnjem kulturološkom određenju savre- menih društava, cilj i ishod postupanja usmereni su ka toleranciji različitosti, bilo da je ona etničke, rasne ili ekonomske prirode. Slogan „čini sve što želiš sve dok dozvoljavaš da ja činim ono što želim“ označava jasan stav ne-suđenja u odnosu na postupke drugih. Međutim, tolerancija često ne može sama po sebi da kreira, u smislu prom- ena, sadašnju situaciju i događaje u njoj i nekada nije jedino prihvatljivo rešenje. Tolerantan stav ljudi u postupanju neće izlečiti teškoće u jednom društvu, poput socijalne izolacije ili očaja ljudi. Za- to se treba usmeriti na ostvarenje opšte društvene dobrobiti koja se određuje kao „čitava mreža soci- jalnih uslova koji omogućavaju pojedincima i gru- pama ljudi da napreduju i žive punim humanim životom. Daleko od toga da svako bude prvenst- veno za sebe, već su svi odgovorni za sve“.1 (Cava- nagh, 2000) Filozofski pristup opšteg dobra nudi alternativnu viziju stvarnosti u kojoj živimo. Mir je centralno pitanje opšteg dobra, a oprost i po- mirenje su putevi kojima se dolazi do mira u sebi, porodici ili lokalnoj zajednici. Primena restorativne pravde u svakodnevnom životu je jedan od načina ostvarenja društvenog mira. Restorativna pravda naglašava značaj lečenja posledica zločina, uz uravnoteženo usmerenje ka učiniocu, žrtvi i zajed- nici, stvarajući osnov u zajedničkoj primeni prakse koja se ne može postići klasičnim retributivnim sistemom iz razloga što je on zasnovan na zakonu i kažnjavanju. Cilj ovoga rada upravo je u tome da domaćoj javnosti ukaže na značaj uvođenja i primene re- storativne pravde, kao i na osnovne standarde na kojima se ona zasniva. S obzirom na promene u pozitivnom krivičnom i porodičnom zakonodavst- vu kod nas, važno je da stručnjaci identifi kuju pro- 1 Ovo su reči koje je izgovorio sveštenik Jum Consedine, zastupnik restorativne pravde sa Novog Zelanda. Uspostavljanje standarda za restorativnu pravdu* Dr Miomira KOSTIĆ** * Prateći dostignuća teorije i prakse krivičnopravnog reagovanja na kriminalitet, u domaćem krivičnom zakonodavstvu došlo je do izvesnih promena koje ukazuju na postepeno, ali dosledno prihvatanje svih onih uslovno „novina“ koje prate uvođenje i primenu procesa restorativne pravde u nas. S druge strane, čak i zakonska rešenja koja izričito propisuju mogućnost primene procesa restorativne pravde nailaze na otpor, i stručne i opšte javnosti, gde se objektivni nedostatak podzakonskih akata često uzima kao subjektivni izgovor u neprimenjivanju pojedinih rešenja. Promene u krivičnom zakonodavstvu u odnosu na punoletne i maloletne učinioce krivičnih dela unose izvesne konkretne elemente restorativne pravde u domaći, tradicionalno retributivni krivičnopravni sistem. Ovaj rad je pokušaj da se ukaže na neka od navedenih pitanja i deo je rezultata istraživanja na projektu „Pristup pravosuđu – instrumenti za implementaciju evropskih standarda u pravni sistem Republike Srbije“, br. 149043D, koji fi nansira Ministarstvo nauke i zaštite životne sredine Republike Srbije. ** Miomira Kostić je vanredna profesorka na Pravnom fakultetu u Nišu, e-mail: gagam@medianis.net RESTORATIVNA PRAVDA I PRAVA ŽRTAVA TEMIDA Maj 2007, str 5-14 ISSN: 1450-6637 DOI: 10.2298/tem0701005K 6 ces restorativne pravde i vrste „putokaza“ koje će im u tome pomoći. Tako će vrednosti kojima teži restorativna pravda dobiti svoje utemeljenje u standardima, čija primena u restorativnom pro- cesu omogućava izbegavanje ili bar ublažavanje mogućih grešaka. Određenje restorativne pravde Sistem krivičnog pravosuđa, sprovodeći retrib- utivnu pravdu, usmeren je da odgovori na pitanja o tome koji je zakon prekršen, ko ga je prekršio i kako sankcionisati krivca tako da se postigne specijalna prevencija. Pristup restorativne pravde sastoji se u strategiji okupljanja i diskusije u okviru lokalne zajednice, okrenut je pojedincu i može se primeniti i u širim gradskim sredinama. Cilj je postizanje jedinstvenih rešenja koja su prihvatljiva za ljude u određenim okolnostima i s obzirom na kulturne prilike koje vladaju. Vremenom, u teorijs- kim raspravama i praktičnoj primeni, restorativna pravda, kao pojam i proces, dobila je značenje ključnog elementa društvene pravde. Restor- ativnoj pravdi pripisuje se sposobnost vraćanja pravde u društvenu zajednicu u kojoj je tradicio- nalni krivičnopravni sistem povezan sa merama opresije unutar zajednice. Te mere izriču organi formalne društvene kontrole u centralizovanom, statičnom krivičnom postupku koji svoje oprav- danje nalazi u opštoj, za sve građane dostupnoj pravdi (Kostić, 2005: 45). U teorijskim razmatranjima o standardima, vred- nostima i obezbeđivanju sprovođenja restorativne pravde često se ističe zanemarivanje socijalnih težnji i tradicije prilikom usvajanja ovog procesa. Restorativna pravda se nekada razmatra samo kao mogućnost ostvarivanja većeg obima prava žrtava pored utemeljenog krivičnopravnog sistema retrib- utivne pravde, a nekada opet kao ravnoteža između prava delinkvenata i prava žrtava. Ipak i pored izvesnih nesuglasica i nedoslednos- ti u sprovođenju, restorativna pravda, primenom svojih principa, obezbeđuje restituciju žrtava i društvene zajednice, promoviše reintegraciju delinkvenata i popravljanje odnosa između žrtve, delinkventa i društvene zajednice. U procesu re- storativne pravde predviđena je mogućnost da se delinkventna ponašanja dožive kao krajnje oz- biljna delanja prema kojima će se postupati bez povišene represije i isključivanja delinkvenata iz društvene zajednice, uz proces restitucije žrtava. Kako neki autori ističu, restorativna pravda daje iz- gled na izbegavanje tzv. “nultog iznosa”, pri čemu benefi cije žrtava pogađaju delinkventa, ne u nje- govim pravima, već u povećanom obimu obaveza zbog svog ponašanja (McEvoy i dr. 2002: 469). Različita udruženja građana, službe za pružanje društvenih usluga, škole, lokalna zajednica, zako- nodavni organi i odeljenja za prevenciju obavljaju najveći broj različitih aktivnosti u procesu restor- ativne pravde. Ove aktivnosti, vezane za razne oblasti društvenog života, povezuju zajednički elementi: lečenje, posredovanje između žrtve i učinioca, izvinjenje (osećanje stida) i reintegracija.2 Zato je prilikom defi nisanja restorativne pravde neophodno sadržajno objediniti sve ove pro- cese. Restorativna pravda se određuje kao „proces pomoću koga sve strane, koje su učestvovale u vršenju određenog krivičnog dela, zajedno nas- toje da savladaju posledice zločina i njegove im- plikacije u budućnosti” (Cavanagh, 1998: 24). Pitanjima restorativne pravde, u razvijenim zemljama sveta, bave se i crkvene zajednice. Tako Crkveni savet za pravdu i popravljanje (The Church Council on Justice and Corrections) koji okuplja je- danaest crkvenih zajednica Kanade, restorativnu pravdu opisuje kao “...omiljeno ime dato velikom broju različitih pristupa pravdi koji su se pojavili i koji teže isceliteljskim i uspešnijim odgovorima na zločin. Pošto postoji veliki broj različitih pris- tupa, ovi procesi pokušavaju da aktivno obje- dine učešće u svemu onome što je neposredno obuhvaćeno izvršenim zločinom. Svako treba da sasluša iskustva, osećanja i pitanja onog drugog učesnika. Svi oni zajedno izdvajaju pitanja odgov- ornosti, sigurnosti i potrebu za preduzimanjem krajnje poštenih i suštinskih radnji“. Pri tome, mora postojati najmanje pet el- emenata koji jednom procesu daju atribut „re- storativan“. Restorativna pravda zahteva potpuno učešće i saglasnost svih onih koji su na bilo koji način bili pogođeni izvršenjem krivičnog dela – žrtve , delinkventa, njihovih porodica i prijatelja, kao i osoba iz društvene zajednice. Zatim, restorativna pravda pokušava da isceli ono što je uništeno. Zato 2 Aktivnosti restorativne pravde, mnogo češće primenjivane u SAD, određuju se kao: uticaj iskaza žrtvi, klasifi kacija i panel diskusija, medijacija (posredovanje) između žrtve i učinioca, društveni servis, restitucija i društveni restorativni odbori. O restorativnoj pravdi videti literaturu na adresi: http://www.restorativejustice.com/published.html Dr Miomira KOSTIĆ Temida 7 se proces usmerava na potrebe žrtve (šta je potreb- no učiniti da se trauma zaceli; povraćaj osećanja sigurnosti), delinkventa (šta je potrebno uraditi da se zlo više nikada ne ponovi; šta preduzeti da se delinkvent ponaša u saglasnosti sa postignutim do- govorom) i članova zajednice (šta će im omogućiti da se osećaju sigurno; koje korake treba preduzeti za unapređenje zajednice tako da ima manje izgle- da da se zločin dogodi u budućnosti). Sledeće što je neophodno je da postoji pot- puna i neposredna odgovornost svih učesnika. Optužene osobe suočavaju se sa svojim žrtvama i drugima koji trpe posledice zločina i kojima je data mogućnost da objasne svoje ponašanje, preuzmu punu odgovornost i budu deo procesa koji odlučuje o načinu kako da objedini potrebe svih zainteresovanih. Takođe, restorativna pravda teži da vrati u ce- linu sve ono što je bilo „razdvojeno”, uništeno krivičnim delom. Naime, zločin deli članove jedne društvene zajednice na „mi-oni” način razmišljanja. Restorativne rasprave nalaze načina da prevaziđu tu razliku, tako da „mi i oni” budu ponovo povezani unutar jedne društvene zajednice postavljene na zdravim osnovama. Povraćaj u jednu celinu svih članova zajednice onemogućava izolaciju unutar zajednice. Izolacija se inače javlja kao prirodan pratilac zločina. To je otuđenost koju osećaju kako delinkvent i žrtva , tako i ostali članovi društvene zajednice koji trpe posledice. Međutim, restorativ- na rasprava ne može da poveže žrtvu i delinkven- ta u nešto što je već postojalo kao nezdrav, zlostavljajući odnos. Na kraju, rasprava o restor- ativnoj pravdi stremi ka tome da osnaži zajednicu u cilju da se spreči dalje povređivanje time „što će izgraditi odnose i obratiti pažnju na značajna socijalna pitanja koja su na prvom mestu uzroci zločina“ (Coward, 2000: 7). 3 3 U literaturi se navodi i to da je restorativna pravda „način razmišljanja, način ponašanja i način rasuđivanja”. Ovakvo određenje izložio je Bria Huculak, sudija iz Kanade, koji je učestvovao na PATHS konferenciji o restorativnoj pravdi 1995. Inače, tokom devedesetih godina prošloga veka neki pisci su opisali restorativnu pravdu kao odgovor na kriminalno ponašanje koje zahteva da budu nadoknađeni gubici kao posledice zločina od kojih su patile žrtve , da se olakša uspostavljanje mira i ostvare miroljubivi odnosi između suprotnih strana. Tokom 1991. u Kanadi restorativna pravda je opisivana kao postojanje principa koji podržavaju i obeštećuju žrtvu uz posredovanje , obeštećuju društvenu zajednicu i uz pomoć kojih se učestvuje u rehabilitaciji delinkvenata uz ograničenu upotrebu restrikcija i nadzora. Uvođenje i primena restorativne pravde Zagovornici restorativne pravde zalažu se za neograničenu ekspanziju u njenoj primeni, dok kritizeri ističu da preterani ciljevi samo podrivaju ostvarenje skromnijih ali realnijih uspeha. Neke od glavnih kritika usmerene su na to da se primenom restorativne pravde ne ostvaruju proporcionalni rezultati. Međutim, proporcionalnost i nije jedna od ključnih vrednosti restorativne pravde, kao ni evaluacija njenih uspeha, zato što ona zastupa zadovoljenje svih učesnika tog postupka, što nije suštinska vrednost niti cilj konvencionalnog krivičnopravnog sistema. Smatra se da je osećanje stida važniji vid kontrole kriminaliteta od izrečene krivične sankcije. Kako osećanje stida ne bi proiz- velo nepovoljne posledice po delinkventa i žrtvu potrebno je da se proces okonča ritualnim činom kroz ceremoniju reintegracije (Braithwaite, Daly, 2001: 29). Neke ženske feminističke grupe se ne saglaša- vaju sa primenom procesa restorativne pravde u slučajevima porodičnog nasilja. Naime, u drugoj polovini dvadesetog veka feministkinje su seksu- alno nasilje i nasilje u porodici proglasile pojavama koje zaslužuju da budu tretirane kao zločini koje treba kazniti. Restorativna pravda, sa svoje strane, omogućava da napredak postignut na tom planu bude umanjen zato što dozvoljava da se o takvim zločinima raspravlja na privatnim sastancima, gde žene mogu biti dodatno viktimizirane zbog nemogućnosti da se izbegne neravnoteža moći. S druge strane, u Kanadi Council on Justice and Corrections je u toku 1996. godine podneo izveštaj zasnovan na istraživanju iskustava žrtava nasilja i utvrdio da je ...“kontakt između žrtve i krivičnog suda bio primarni izvor reviktimizacije, frustracije, razočaranja, dosađivanja, pre nego li doprinos u rešavanju problema žrtava“. Isto tako, nevladina organizacija iz New Foundlend-a Provincial Asso- ciation Against Family Violence PAAFV iznela je re- zultate sopstvenog istraživanja o položaju žrtava u krivičnom postupku. Prema ovom izveštaju „žrtve su zabrinute oko sopstvenog minimalnog učešća u krivičnom postupku i da se nekada osećaju kao os- obe kojima se sudi umesto osobe koja je optužena za zločin..., a sadašnji sistem funkcioniše tako što delinkvente radije zadržava u sistemu nego što ih ohrabruje da prestanu da vrše zločin“ (Coward, 2000: 2). 8 Jedan od glavnih pobornika restorativne pravde u SAD Tomas Cavanagh smatra da je klasičan krivičnopravni sistem doživeo krah i da stvara “spi- ralu učešća siromašnih, mentalno bolesnih i mar- ginalaca”, a da restorativna pravda pomaže da ljudi “žive život sa strašću, ispunjen ličnim i zajedničkim ciljevima i snovima u težnji da dostignu svoje pot- pune mogućnosti”. Ovaj bivši novinar koji je proveo dvadeset i osam godina kao izveštač iz suda, sma- tra restorativnu pravdu izazovom koji je “posvećen kritičkom razmišljanju i doživotnom učenju u toku kojeg se postavljaju pitanja na koja se nema uvek odgovor, gde se čovek usuđuje na nešto izvanred- no i preuzima rizik” (Cavanagh, 1998:24). Identifi kacija procesa restorativne pravde i vrste „putokaza“ Howard Zehr i Harry Mika predložili su izves- tan broj „putokaza“ u cilju lakše identifi kacije procesa restorativne pravde. Učesnici procesa se radije usredsređuju na pretrpljenu štetu nego na kršenje zakona. Prema žrtvi i prema učiniocu se iskazuje uravnotežena briga i obe se strane uključuju u krivični postupak. Popravljanje po- sledica koje je žrtva pretrpela vrši se kroz povećan interes za zadovoljenje potreba žrtve. Delinkvent se podržava i simultano ohrabruje da razume, pri- hvati i izrazi spremnost da ispravi zlo koje je naneo. U procesu restorativne pravde mora se prepoznati potreba delinkventa da ispuni obaveze koje su ostvarive, a ne predstavljaju kažnjavanje. Mora se razviti mogućnost da između žrtve i učinioca bude uspostavljen neposredan ili posredan dijalog. S druge strane, ovi zagovornici restorativne pravde ne isključuju značaj krivičnog sudskog postupka i smatraju da sama društvena zajedni- ca, ili preciznije uža socijalna sredina u čijem se miljeu odigrao zločin, treba da bude deo sudskog postupka, pogotovu kroz povećanje njenih kapa- citeta da prepozna zločin i odgovori na njega. U procesu „lečenja“ društva od delinkvencije radije treba podsticati saradnju i reintegraciju nego se- paraciju i korekciju. S obzirom da u procesu resto- rativne pravde učestvuju po svojim obeležjima he- terogene grupe ljudi, posebno se moraju opažati izvesni neočekivani postupci i neočekivani do- bijeni rezultati. Kao poslednji u nizu „putokaza“ je onaj kojim se iskazuje poštovanje za dostojanstvo svakoga, posebno žrtava, delinkvenata i svih dru- gih učesnika u procesu ostvarivanja pravde (McE- voy, Mika, Hudson, 2002: 469). Provincial Association Against Family Violence PAAFV zastupa fi losofski pristup koncepta restor- ativne pravde. To nije samo model postupanja drugačiji od tradicionalnog krivičnopravnog siste- ma, već fi losofi ja ili vizija koja u svesti odražava potrebe žrtve, delinkventa i društvene zajednice. Ova asocijacija se poziva na „...merodavne sudove pravednosti u zajednici i suđenja u krugu kao pod- sticaje ili inicijative u procesu restorativne pravde i identifi kuje neke oblike rešavanja konfl ikata kroz alternativno raspravljanje kao prirodne restor- ativne procese“. Po drugima, restorativna pravda usmerena je na izazivanje osećanja sramote i oproštaj, pa je to postupanje isključivo za dobrobit žrtve, a ne delinkventa (Coward, 2000: 6). Vrednosti kojima teži restorativna pravda Restorativna pravda se zasniva na uravnoteženom usmeravanju na delinkventa, žrtvu i zajednicu. Vrednosni sudovi usmereni na delinkventa obuhvataju izvinjenje i osećanje stida za učinjeno delo i reintegraciju. U odnosu na žrtvu, razmatra se pričinjena šteta i mogućnost davanja oproštaja delinkventu, dok bi za društvenu zajed- nicu bilo važno da se uspostave pređašnji odnosi. Rezultati i mere programa restorativne pravde zasnivaju se na osnovnim vrednostima koje se od- nose na sva tri učesnika ovog procesa. Delinkvent treba da uputi pisano ili usmeno izvinjenje žrtvi i socijalnoj grupi koje trpe zbog njegovog postupka. On mora naučiti da prepozna sopstvenu odgovor- nost bez posmatranja sebe kao žrtve okolnosti kao i da stekne saznanja o zlu koje je naneo žrtvi. Rein- tegracija delinkventa znači učenje kako da se vrati u društvenu zajednicu, posebno kroz plan postu- panja u cilju „lečenja“ nastalog štetnog postupka. Kod žrtve treba identifi kovati i proceniti nane- senu štetu. U svakom pojedinačnom slučaju pravi se plan popravljanja štete. Žrtva treba da prihvati izvinjenje od delinkventa i da iskaže oproštaj. Vred- nosti vezane za društvenu zajednicu usmerene su na popravljanje uništenih odnosa i uspostavljanje novih odnosa unutar zajednice. Retributivna pravda teži stvaranju sigurnosti u društvu za razliku od restorativne pravde koja ima za cilj uspostavljanje mira u zajednici. Retributivna Dr Miomira KOSTIĆ Temida 9 pravda usmerena je na izdvajanje nepoželjnih lju- di, kakvi su kriminalci, time što će im se izreći ka- zna zatvora, kao najrasprostranjenija vrsta krivične sankcije po obimu izricanja u pravnosnažnim osuđujućim presudama. Otuda i mišljenje većine zastupnika restorativne pravde da proces retribu- cije nije dao željene rezultate zato što su njime ug- lavnom obuhvaćeni oni „drugačiji“, ljudi sa margina života, koji najčešće i dospevaju pred krivični sud.4 To su najčešće: beskućnici, mentalno hendikepira- ni, siromašni građani i pripadnici manjina. Stvaran- je mira u zajednici podrazumeva postupanje sa delinkventima koji su deo društvene zajednice jer će se oni vratiti natrag u tu zajednicu i posle izdržane kazne zatvora. Društvena zajednica, koja se neposredno odnosi na svakog pojedinačnog delinkventa obuhvata: porodicu, prijatelje i osobe sa kojima je delinkvent u poslovnim odnosima. Ovi odnosi obezbeđuju okruženje za razvitak osećanja za društvenu savest, svest da nečiji postupci pogađaju druge ljude i želju da se osoba ostvari kao uzoran član društva. Uspostavljanje standarda za restor- ativnu pravdu U literaturi o restorativnoj pravdi uspostavljan- je standarda vezanih za sprovođenje ovog procesa posmatra se kao utemeljenje izvesnih fi losofskih koncepcija. Naime, smatra se da je neophodno u nekom obliku postaviti minimum odgovornosti i minimum broja standarda koji će se nadmetati za primat u primeni. Takođe, ljudska prava su ta koja moraju biti zaštićena procesima restorativne pravde. Mnogi učesnici procesa restorativne pravde sebe identifi kuju kao osobe angažovane u borbi protiv opresivne državne strukture, koja je posebno vidljiva u penitencijarnoj praksi mod- ernih država. Za većinu zastupnika restorativne pravde ovaj koncept je fi losofski, metodološki i politički značajan. Restorativni metod znači postupak kroz koji se razmatra značaj posledica nepravde nane- sene građanima, tako da sve one budu pojedinačno priznate kao početna tačka u njihovom lečenju i sprečavanju, kao i promenu uslova koji su doveli do razvijanja nepravde. Građani se ohrabruju da 4 Videti mišljenja Cavanagh-a, Braithwait-a i drugih autora na sajtu: http://www.restorativejustice.com/published. html preuzmu odgovornost za događaje koji su posled- njih nekoliko vekova posmatrani isključivo kao predmet interesovanja države (Konstantinović- Vilić, Kostić, 2006: 106). Osnovni standard je da restorativni proces treba da teži izbegavanju dominacije. Ipak, domi- nacija je i dalje zastupljena u restorativnom pro- cesu kao što se može uočiti i u bilo kojoj drugoj sferi društvene interakcije. Zato svaki program koji u sebi sadrži atribut „restorativan“ mora ujed- no biti angažovan u prevenciji dominacije. Svaki učesnik konferencije koji ne dozvoljava drugome da iznese svoj stav ili teži da dominira nad dru- gim učesnicima mora biti sprečen u takvom svom nastojanju (Braithwaite, 2002: 565). Ukoliko domi- nacija ipak opstaje ili se drugi učesnici boje da joj se neposredno suprotstave onda moderator treba da zahteva da govore oni nad kojima se vrši sub- ordinacija. Neravnoteža moći predstavlja strukturalni fenomen. Struktura restorativnih procesa mora bi- ti takva da minimalizuje neravnotežu moći.5 Usvo- jeni standardi usmeravaju pripremni rad učesnika postupka upravo ka postizanju ravnoteže između učesnika postupka. Organizovane grupe za- stupnika interesa pojedinih žrtava imaju posebno značajnu ulogu kada postoji neravnoteža moći iskazana u samom deliktu. Time su obuhvaćene grupe za podršku ženama i deci kada je porodično nasilje predmet debate i grupe za podršku ekološke sredine kada se vrše krivična dela protiv prirodne sredine od strane moćnih korporacija. Smatra se da je podesan postupak najvažniji domen gde se javila potreba za defi nisanjem standarda. Delinkvent treba da ima pravo na sa- vet advokata o tome da li da prihvati da učestvuje u postupku ili ne. Međutim, suština procesa re- storativne pravde, prema Braithwaitu, je da se prevaziđe „suparnički legalizam“, tako da učesnici budu ohrabreni da govore svojim sopstvenim 5 Postupak restorativne pravde koji se sprovodi prema maloletnom delinkventu, na primer, ne sme se odvijati tako da on bude optuživan u „sobi prepunoj odraslih ljudi“ (Haines, 1998). Ovom postupku treba da prisustvuju odrasle osobe koje sebe vide kao odgovorne da zastupaju interese maloletnika. Ukoliko se takve osobe ne pronađu za prvi krug, postupak se prekida i vraća se u pređašnje stanje da bi se ponovo potražile one osobe koje će zastupati interese deteta i podržati dete. Slično je i u postupanju prema učiniocima porodičnog nasilja koje bi zastupali njihovi patrijarhalni branioci (Citirano prema: Braithwaite, 2002: 565). 10 rečima radije nego da za njih govore „legalni mirot- vorci koji mogu imati interes da polarizuju kon- fl ikt“ (Braithwaite, 2002: 565). S obzirom da proces restorativne pravde teži da reintegriše štetu i suz- bije stigmatizaciju važno je zabraniti bilo koji oblik degradacije ili ponižavanja u tretmanu. 6 Ključni princip procesa je poklanjanje iste pažnje svim učesnicima postupka – delinkventu, žrtvi i društvenoj zajednici. Moguće je da položaj poje- dinih žrtava bude iskorišćen kao potpora u pro- gramima koji su orijentisani samo na prava žrtava. Takvi programi su moralno neprihvatljivi. Pažljivo slušanje izlaganja svih učesnika u postupku pred- stavlja zabranu nepoštovanja ili ponižavanja dru- gih i sprečavanje degradirajućih načina reakcije ili kažnjavanja. Pravo na žalbu je jedan od osnovnih standarda koji mora biti ispoštovan. U onim situacijama kada je krivično pravo osnov po kome se izriče sank- cija, u postupku restorativne pravde delinkventi moraju imati pravo žalbe protiv izrečene sankcije državnom organu, odnosno nadležnom krivičnom sudu. Međutim, to ne znači da svi mehanizmi krivičnopravne procedure istovremeno odgov- araju ideji postupka restorativne pravde. To se posebno odnosi na prisustvo javnosti u postupku. S jedne strane, izbegavanje stigmatizacije poje- dinih učesnika u postupku restorativne pravde i obezbeđivanje dijaloga bez dominacije podra- zumeva izvesnu diskretnost, pogotovu onda kada učesnici nisu saglasni da se postupak odvija uz prisustvo stručne ili opšte javnosti. Ako su učesnici saglasni da se postupak odvija uz prisustvo javnos- ti važno je obezbediti učešće istraživača, kritičara, novinara, sudija i kolega iz programa restorativne pravde drugih sredina. Tako će se izneti kritički stavovi, iskustva drugih postupaka, kao i načinjene pogreške. U literaturi se iznose mišljenja koja idu u prilog ovom drugom shvatanju i ističe važnost novinskih izveštača čiji je zadatak da objektivno 6 Postoji standard po kome delinkventi i žrtve imaju pravo na prisustvo advokata za vreme sprovođenja procesa restorativne pravde. Međutim, standard po kome advokati imaju pravo da govore u postupku čini se ipak neopravdanim jer se takav govornik smatra pretnjom ka „integritetu osnaživanja procesa restorativne pravde“. To ne znači da advokat treba da ima bezuslovnu zabranu govora. Naprotiv, ako se svi učesnici saglase da treba da čuju neko stručno mišljenje onda to mišljenje treba i izneti tokom postupka. To posebno važi u slučaju kada su pravnici potpisali legalni sporazum o saradnji i prošli obuku za posredovanje. Ibid. obaveštavaju o poštovanju ili nepoštovanju os- novnih standarda restorativne pravde. U formulisanju standarda restorativne pravde moraju se ispoštovati i neki međunarodno prizna- ti instrumenti o zaštiti osnovnih ljudskih prava. Opšta deklaracija o pravima čoveka UN defi niše specifi čne vrednosti i prava ljudi koji se promovišu i kroz proces restorativne pravde.7 Deklaracija obuh- vata pravo na život, slobodu i bezbednost ličnosti, pravo na zaštitu od samovoljnog oduzimanja tuđe imovine, pravo na zdravlje i medicinsku brigu, kao i pravo na učešće u demokratskim procesima. Sa stanovišta restorativne pravde interesantan je čl. 5 koji predviđa da niko neće biti izložen torturi ili surovom, nehumanom i ponižavajućem postupku ili kazni. Zagovornici restorativne pravde smatraju da su države članice UN interpretirale ovaj član na najpermisivniji način koji ne zadovoljava standarde restorativne pravde. Zato je ovaj član za njih neka vrsta „izazova“ za primenu u restorativnoj pravdi, kao minimum „anti-kažnjivog prostora“. Međunarodni pakt o građanskim i političkim pravima iz 1966. godine usmeren je ka daljem „samoodređivanju“ građana država članica.8 Naime, Paktom je propisano da svako lice koje je uhapšeno ili pritvoreno zbog krivičnog dela bude u najkraćem roku predato sudiji ili nekoj drugoj vlasti zakonom ovlašćenoj da vrši sudske funk- cije i mora u razumnom roku da bude suđeno ili oslobođeno (čl. 6). Takođe Paktom je predviđeno da su svi jednaki pred sudovima i sudovima pravde (čl. 14). U Međunarodnom paktu o ekonomskim, socijalnim i kulturnim pravima države članice se obavezuju da priznaju pravo koje ima svako lice na najbolje psihičko i mentalno zdravlje koje može da postigne (čl. 12).9 Godine 1989. usvojen je Drugi opcioni protokol Pakta o građanskim i političkim pravima koji obuhvata učešće političkih partija u aboliciji smrtne kazne. Takođe, zagovornici restor- ativne pravde saglasni su sa svim vrednostima i pravima iz Konvencije o eliminaciji svih oblika dis- kriminacije prema ženama10 i Standardnim mini- 7 Opšta deklaracija o pravima čoveka, usvojena i proklamovana od strane Generalne Skupštine rezolucijom 217A (III) od 10. decembra 1948. godine. 8 Zakon o ratifi kaciji Međunarodnog pakta o građanskim i političkim pravima , Službeni list SFRJ br. 7/71. 9 Zakon o ratifi kaciji Međunarodnog pakta o ekonomskim, socijalnim i kulturnim pravima, Sl. List SFRJ br. 7/71. 10 Sukcesorskom izjavom od 12. marta 2001. godine, Dr Miomira KOSTIĆ Temida 11 malnim pravilima za mere nepritvaranja iz 1990. godine (Tokijska pravila). Za izgradnju i primenu re- storativne pravde važne su odredbe Deklaracije o osnovnim principima pravde za žrtve zločina i zlou- potrebe moći koju je usvojila Generalna skupština UN-a 1985. godine. Ona obuhvata relevantne vred- nosti koje bliže objašnjavaju instrumente zaštite osnovnih ljudskih prava poput: „zaštite okoline“ (čl. 10), „sažaljenja“ (čl. 4), „povraćaja u pređašnje stanje“, „obeštećenja“ (čl. 5), „restauraciju prava“ (čl. 8) i reguliše „normalne mehanizme za razrešavanje sporova, uključujući medijaciju, presuđivanje i uobičajenu pravdu i lokalne običaje“ (čl. 7), što je pravni osnov za primenu restorativne pravde u svim onim situacijama kada treba olakšati po- mirenje i obeštetiti žrtvu. Osim toga na evrop- skom planu značajna je i Evropska konvencija za zaštitu ljudskih prava i osnovnih sloboda iz 1950. godine11. (Papić, 2002: 396) Prema odredbama Konvencije niko ne sme biti podvrgnut mučenju ili nečovečnom ili ponižavajućem postupanju ili kažnjavanju (čl. 3). Svako ima prava na pravičnu i javnu raspravu u razumnom roku pred nezavisnim i nepristrasnim sudom, obrazovanim na osnovu zakona (čl. 6). Konvencijom je zabranjena diskrim- inacija po bilo kom osnovu, kao što su: pol, rasa, boja kože, jezik, veroispovest, političko ili drugo mišljenje, nacionalno ili socijalno poreklo, veza sa nekom nacionalnom manjinom i drugo (čl. 14). Na evropskom kontinentu, sadašnji oblik medi- jacije između žrtve i učinioca otpočeo je da se primenjuje osamdesetih godina prošloga veka. Prvi pilot projekat sproveden je 1981. godine u Norveškoj, a Finska je sledila taj put dve godine kasnije. U Austriji model je nazvan „rešavanje delikta izvan suda“ i prvi put je predstavljen od strane države pred maloletničkim sudovima 1988. godine, a zatim je ugrađen u Zakonik o krivičnom Srbija i Crna Gora je nastavila članstvo i u svim drugim konvencijama koje se odnose na prava žena, a kojima je depozitar Generalni sekretar UN. Srbija i Crna Gora je država članica Konvencije o eliminaciji svih oblika diskriminacije prema ženama. Opcioni protokol uz ovu Konvenciju ratifi kovan je decembra 2002. godine. Inicijalni izveštaj o primeni Međunarodnog pakta o građanskim i političkim pravima u SRJ za period od 1992-2002. godine, 2003 Ministarstvo za ljudska i manjinska prava Srbije i Crne Gore, Beograd 11 Evropska konvencija za zaštitu ljudskih prava i osnovnih sloboda, izmenjena u skladu sa Protokolom br. 11, Rim, 4. novembra 1950. postupku od 1. januara 2000. godine. U Engles- koj, posle skromnih eksperimenata iz 1979. go- dine, u periodu od 1985-87. godine primenjena su četiri projekta, ali nisu naišli na takav odjek kao u Nemačkoj. Naime, u Nemačkoj je taj proces počeo skoro u isto vreme kada i u Engleskoj, ali se do sada razvilo preko četiri stotine službi za primenu restorativne pravde. Uopšte, tokom devedesetih godina prošlog veka, ovaj se proces proširio u Evropi. 8. decem- bra 2000. godine, posle dvogodišnjih priprema, ustanovljen je Evropski forum za medijaciju između žrtve i učinioca i restorativnu pravdu (European Forum for Victim-Off ender Mediation and Restor- ative Justice), sada samo Evropski forum za restor- ativnu pravdu (European Forum for Restorative Justice). Tada je donet Statut ove organizacije, gde je u čl. 4 određen opšti cilj rada Foruma. Taj cilj sas- toji se u tome da forum pruži pomoć u ustanovlja- vanju i razvoju medijacije između učinioca i žrtve i u drugim oblicima prakse za primenu restorativne pravde širom Evrope.12 Evropska unija usvojila je dokument pod na- zivom Okvirna odluka o položaju žrtve u krivičnim postupcima (the Framework Decision on the stand- ing of victims in criminal proceedings) 22. marta 2002. godine. Pun opseg zaštite zagarantovan Od- lukom počeo je da se primenjuje tek posle četiri go- dine. Mere u cilju umanjenja teškoća oko primene Odluke u lokalnim zajednicama i obezbeđivanje pristupa besplatnoj pravnoj pomoći stupile su na snagu tek marta 2004., dok je promocija medijaci- je bila predviđena za 2006. godinu.13 Neki autori, poput Braithwait-a, daju predloge standarda koji bi bili osnov za postupanje. (Bra- ithwait, 2002:569) Tako, ovaj autor razlikuje stan- darde ograničenja ili prinude koji precizno od- ređuju prava i ograničenja i standarde uvećavanja ili maksimizirajuće standarde. Standardi ogra- ničenja, po predlogu ovog autora, bili bi: odsustvo dominacije; ostvarivanje prava; poštovanje gornjih zakonskih maksimuma krivičnih sankcija; slušanje drugih uz puno poštovanje; poklanjanje podjed- nake pažnje svim učesnicima; odgovornost i mo- gućnost žalbe; poštovanje svih osnovnih ljudskih 12 Videti: www. euforum.org (pristup sajtu 15.3.2007.) 13 Videti: New rights for victims of crime in Europe - The future.htm (pristup sajtu 17.3.2007.) 12 prava proklamovanih dokumentima UN. Standar- di najvećih vrednosti ili maksimizirajući standardi odnose se na: uspostavljanje ljudskog dostojan- stva; obnavljanje uništene imovine; obnavljanje narušenog zdravlja; obnavljanje uništenih ljudskih odnosa; obnavljanje zajednice; obnavljanje okoli- ne; emocionalno obnavljanje; obnavljanje slobo- de; obnavljanje sažaljenja i brige za druge; uspo- stavljanje mira; obnavljanje građanskog osećanja dužnosti; priprema društvene podrške za neogra- ničeni razvoj ljudskih sposobnosti; prevencija bu- duće nepravde. Ove vrednosti ne proističu samo iz tekstova međunarodnih dokumenata o ljudskim pravima, već predstavljaju i deo empirijskog iskustva saku- pljenog kroz iskaze žrtava i delinkvenata o tome šta bi oni želeli da se postigne kroz proces restor- ativne pravde. U standardima ograničenja pored zabrane dominacije važno mesto zauzima i standard os- tvarivanja prava. Ostvarivanje prava znači da svi učesnici treba da imaju mogućnost da budu „opunomoćeni“ da iskažu svoje sopstvene priče na sebi svojstveni način. Time bi obznanili bilo koji osećaj nepravde koji žele da vide kao ispravljen. Nepoštovanjem standarda najvećih vrednosti bi se, zbog subjektivnog doživljaja nepravde, postigla netrpeljivost. Prihvatanjem standarda ograničenja učesnici nisu limitirani u postizanju standarda sa liste najvećih vrednosti. Kod standarda najvećih vrednosti mera se ne sastoji u tome da oni uvek budu svi striktno sprovedeni, već da se razvijaju kroz veliki broj slučajeva koji su u programu restor- ativne pravde. Evaluacioni proces sastojao bi se u njihovom poređenju sa slučajevima koji nisu bili u programu. Sve ove vrednosti su restriktivne u određivanju kazni. Njihovo poštovanje i sprovođenje teži ka primeni nekih drugih mera zato što ciljevi i sredst- va sprovođenja restorativne i retributivne pravde nisu isti. Standardi najvećih vrednosti predstavljaju različite oblike lečenja koji imaju svoje uporište u međunarodno priznatim ljudskim pravima i empirijskom iskustvu onoga što učesnici žele da „izleče“ kroz proces restorativne pravde. Emocio- nalno obnavljanje ili emocionalna restoracija tako će za nekoga biti oslobađanje od osećanja straha, za drugog učesnika oslobađanje od mržnje, za nekog sledećeg od stida ili nepoželjnih osobina sopstvenog karaktera. Obezbeđivanje socijalne podrške za potpuni razvoj ljudskih sposobnosti usmeren je ka organima formalne društvene kon- trole i njihovom daljem opstanku kao razvojnih a ne statičnih institucija. Smatra se, naime, da državne, regulativne institucije onemogućavaju razvoj ljudskih sposobnosti, među kojima organi krivičnopravnog sistema usmereni na kažnjavanje predstavljaju najtipičniji primer. U procesu sprovođenja restorativne pravde Braithwaite ističe značaj pomoćnih standarda koje posmatra kao: žaljenje ili pokajanje zbog učinjene nepravde; izvinjenje, osuda čina, oproštaj, milost. (Braithwaite, 2002: 570) Svi ovi standardi su ugrađeni u međunarodno- pravne dokumente o ljudskim pravima. Lista ovih standarda razlikuje se od liste standarda uvećavanja po konceptualnom kriterijumu. Desmond Tutu (1999) je izjavio da budućnost ne postoji bez oproštaja, što je postala ideja vodilja mnogih po- bornika restorativne pravde. Međutim, oproštaj se razlikuje od slušanja drugih uz puno poštovanje, što mora biti osnovni standard restorativne pravde. Zalaganje da svako bude saslušan ne znači istovre- meno insistirati na oproštaju, požurivati davanje oprosta. Braithwaite14 čak insistira na tome da je okrutno i pogrešno očekivati od žrtve zločina da oprosti (Braithwaite, 2002: 571). Slično tome, pokajanje koje je silom ili formalno izvučeno iz delinkventa takođe nema moralnu snagu.15 Zaključak Restorativna pravda, umesto retribuciji teži ka ponovnom uspostavljanju stanja narušenog izvršenjem krivičnog dela, što se postiže primenom raznih metoda: posredovanjem između učinioca krivičnog dela i žrtve , izvinjenjem, mirenjem, na- knadom štete ili drugim oblicima nadoknade pričinjene štete žrtvi. 14 Dalje ovaj autor konstatuje da su izvinjenje, oproštaj i milosrđe darovi koji „imaju značenje samo onda ako izviru u iskrenoj želji osobe koja oprašta, izvinjava se ili prima milosrđe“. 15 Upoređujući predložene standarde Braithwait ističe da se standardi ograničavanja moraju prihvatiti i primeniti kao ograničenja. Listu standarda najvećih vrednosti zagovornici restorativne pravde treba „aktivno da ohrabruju“ u restorativnom procesu, dok pomoćne standarde posmatra kao nešto što ne treba da se „požuruje“ u restorativnom procesu, već oni predstavljaju rezervne ali i sastavne delove uspešnog procesa restorativne pravde. Dr Miomira KOSTIĆ Temida 13 Teškoće u sprovođenju ovih standarda su u tome što ih neki posmatraju kao neodređene vred- nosti i manjkave specifi čnosti za sprovođenje pro- cesa restorativne pravde. Međutim, oni treba da se primenjuju u praksi tako što će evaluacija na osn- ovu prethodnih empirijskih pokazatelja iz primene pomoći da se podstakne savetodavna regulativa za razliku od legalističke regulative u postupku sprovođenja retributivne pravde. U literaturi se kao primer navodi pravo na brzo suđenje koje je predviđeno odredbama zakonika o krivičnom po- stupku savremenih država16. Ovo pravo predstav- ljeno je i kao specifi čna odredba iz Pekinških pravila za maloletničko pravosuđe.17 Međutim, upravo ovo pravilo može biti preispitano sa stanovišta fi losof- skog koncepta restorativne pravde. Naime, praksa je pokazala da u slučajevima kada su žrtve teško traumatizovane izvršenim krivičnim delom potreb- no je da protekne određeni vremenski period pre nego one postanu spremne da prihvate „lečenje“ kroz postupak restorativne pravde. Žrtvama treba omogućiti to pravo ali ne u onoj meri da posluži kao izgovor za proizvoljno zadržavanje delinkven- ta u pritvoru koji još nije oglašen krivim. S druge strane, neka prava, kao pravo na žalbu preuzeto iz legalističke regulative je visoko specifi čan standard u sprovođenju restorativne pravde koji, bez izuzet- ka, mora biti ispoštovan. U domaćoj stručnoj i opštoj javnosti pozna- vanje standarda i principa restorativne pravde nije zastupljeno u većoj meri. Kancelarija UNICEF- a u Beogradu organizovala je nekolicinu stručnih skupova sa centrima za socijalni rad, timovima za suzbijanje maloletničke delinkvencije pri sek- retarijatima unutrašnjih poslova i ustanovama za izvršenje vaspitnih mera institucionalnog karak- tera. Međutim, smatra se da sve to nije bilo dovolj- no za bolje upoznavanje ovog procesa. Savremene države teže da kao osnov komuni- kacije među ljudima razviju toleranciju – trpelji- vost prema različitostima, bez obzira da li su one etičke, rasne ili ekonomske prirode. Na različitost 16 Ovo pravo predviđeno je i u čl. 16. Zakonika o krivičnom postupku SRJ po kome okrivljeni ima pravo da u najkraćem roku bude izveden pred sud i da mu bude suđeno bez odlaganja. Sud je dužan da postupak sprovede bez odlaganja i da onemogući svaku zloupotrebu prava koja pripada licima koja učestvuju u postupku. 17 Videti: United Nations Standard Minimum Rules for the Administration of Juvenile Justice – Beijing Rules (1995) Defence for Children International, s. 5. treba gledati bez prigovaranja. Međutim, trpelji- vost često nije dovoljna da se njome najtačnije odredi sadašnjost i po mišljenju nekih pobornika restorativne pravde, ona nije rešenje. Tolerancija, sama po sebi, kao pojedinačni, izdvojeni person- alni akt, ne utiče na „lečenje“ društvenih rana niti pak eliminiše socijalnu izolaciju i očaj (Cavanagh, 2000). Zagovornici restorativne pravde radije ističu da rešavanje pitanja društvenih devijacija pre treba da se zasniva na „opštoj dobrobiti“ za- jednice. Opšta dobrobit zajednice određuje se kao „čitava mreža društvenih uslova koji omogućavaju pojedincima i grupama ljudi da se u potpunosti razviju i žive punim životom ali tako da svako ne bude usmeren samo na sebe, već su svi odgovorni za sve druge oko sebe“ (Cavanagh, 2000). Opšta dobrobit u jednoj ljudskoj zajednici znači da svako ima obavezu da doprinese razvoju opšteg dobra u društvu, u interesu pravde, kao i u iznalaženju rešenja socijalnih pitanja u jednoj društvenoj zajednici. Upravo se na tome zasniva osnovna kritika retributivne pravde. Naime, re- tributivni krivičnopravni sistem upravljen je na kažnjavanje delinkvenata, naročito putem izri- canja kazni institucionalnog karaktera. Ustanove za izvršenje kazne zatvora često se opisuju rečima “uvreda ljudskog dostojanstva ...i otrov u krvotoku nacije“. Takav sistem nije uticao na suzbijanje krim- inaliteta zato što se ne bavi razrešenjem uzroka kriminalnog ponašanja. Ti uzroci najčešće se nala- ze u najbližem socijalnom okruženju delinkventa, u sredini u koju se on inače vraća po isteku kazne. Vizija restorativne pravde, u kontekstu opšteg dobra, usmerena je na postizanje mira u društvenoj zajednici putem popravljanja odnosa u društvu, što se odnosi na sve članove zajednice. Suština sprovođenja restorativne pravde je „lečenje“ sva- ke osobe koja je povezana sa zločinom putem popravljanja, a ne putem kažnjavanja. Celokupan proces treba da se zasniva na izvinjenju, oproštaju i uspostavljanju čvrste povezanosti ljudi unutar za- jednice. Literatura Braithwaite, J., Daly, K. (2001) Muškosti, nasilje i kontrola za- jednice, Temida, 2, str. 29-44. Braithwaite, J. (2002) Setting Standards for Restorative Justice, British Journal of Criminology 42, str. 563-577. 14 Cavanagh, T. (1998) Adopting New Values for the Courts: What is Restorative Justice? The Court Manager, 13/ 2/3, Williams- burg, VA: National Association for Court Management, str. 24- 27. http://www.restorativejustice.com/Tom.html Cavanagh T. (2000) Restorative Justice and the Common Good: Creating a Culture of Forgiveness and Reconciliation, BLUEPRINT for Social Justice, Vo. LIII, No. 8, str. 24-27, http:// www.lojno.edu/twomey/blueprint/blueprint/april2000.htm. Coward, S. (2000) Restorative Justice in Cases of Domestic Vio- lence: Healing Justice? Directed Interdisciplinary Studies, Car- leton University. http://www.hotpeachpages.com/resources/ rs_cases_of_dv_sv.htm od 17.02.2004. Inicijalni izveštaj o primeni Međunarodnog pakta o građanskim i političkim pravima u SRJ za period od 1992-2002. godine, 2003, Ministarstvo za ljudska i manjinska prava Srbije i Crne Gore, Beograd. Konstantinović-Vilić, S., Kostić, M. (2006) Penologija. Niš: SVEN. Kostić, M. (2005) Restorativna pravda – smisao i mogućnosti primene, Socijalna misao, 2-3, str. 45-66. McEvoy, K., Mika, H., Hudson, B. (2002) „Introduction – Prac- tice, Reformance and Prospects for Restorative Justice”, British Journal of Criminology 42, str. 469-475. Opšta deklaracija o pravima čoveka, usvojena i proklamovana od strane Generalne Skupštine rezolucijom 217A (III) od 10. decembra 1948. godine. Papić, T. ur. (2002) Zbirka odluka o ljudskim pravima II, odluke Evropskog suda za ljudska prava, Beogradski centar za ljudska prava, Beograd, str. 396-430. United Ntions Standard Minimum Rules for the Administration of Juvenile Justice – Beijing Rules, 1995, Defence for Children International. Zakon o ratifi kaciji Međunarodnog pakta o građanskim i političkim pravima, “Službeni list SFRJ” br. 7/71. Zakon o ratifi kaciji Međunarodnog pakta o ekonomskim, so- cijalnim i kulturnim pravima, “Sl. List SFRJ” br. 7/71. Zakonik o krivičnom postupku, „Sl. List SRJ” 70/2001 i 68/2002; „Sl. glasnik Republike Srbije”, br. 58/2004 od 28. maja 2004. godine; 85/2005; 115/2006. Miomira KOSTIĆ, Ph.D. Setting Standards of Restorative Justice In the article the author deals with the basic theoretical statements and discussions about the practical use of restorative justice. She discusses the questions of introducing and application of restorative justice in order to reach the balance of interests between a victim, society and a delin- quent. There is no unique statement about the re- storative justice concept, so the authors make this concept by listing certain activities with rispect of standards and principles. Also she emphasizes the values of restorative justice process. A part of the article is dedicated to the standards for restorative justice that are harmonized with the international documents of human rights. Keywords: restorative justice, standards, prin- ciples, retributive justice Dr Miomira KOSTIĆ 
work_it3izdfo3bcbdke4kfbbtrfkly	----	Intergenerational Justice and Climate Change University of Warwick institutional repository This paper is made available online in accordance with publisher policies. Please scroll down to view the document itself. Please refer to the repository record for this item and our policy information available from the repository home page for further information. To see the final version of this paper please visit the publisher’s website. Access to the published version may require a subscription. Author(s): Page, Edward Article Title: Intergenerational Justice and Climate Change Year of publication: 1999 Link to published version: http://dx.doi.org/10.1111/1467-9248.00187 Publisher statement: The definitive version is available at www.blackwell-synergy.com http://www.blackwell-synergy.com/� Intergenerational Justice and Climate Change EDWARD A. PAGE University of Southampton* Global climate change has important implications for the way in which benefits and burdens will be distributed amongst present and future generations. As a result it raises important questions of intergenerational justice. It is shown that there is at least one serious problem for those who wish to approach these questions by utilising familiar principles of justice. This is that such theories often pre-suppose harm-based accounts of injustice which are incompatible with the fact that the very social policies which climatologists and scientists claim will reduce the risks of climate change will also predictably, if indirectly, determine which individuals will live in the future. One proposed solution to this problem is outlined grounded in terms of the notion of collective interests. The issue of global climate change has attracted increasing interest amongst political scientists and theorists in recent years. The complex interactions amongst nation-states which have resulted from moves to construct world-wide, and legally binding, restrictions on greenhouse gas (GHG) emissions is a fascinating source of research for international relations theorists generally, and game theorists in particular.1 * I would like to thank Andrew Williams, John Horton, and an anonymous referee of Political Studies for helpful comments on earlier versions of this article. Moreover, the fact that the future costs of climate change are not expected to be shared evenly amongst nations has 1 For a game theoretical account of climate change politics, see Hugh Ward, ‘Game Theory and the Politics of Global Warming: the State of Play and Beyond’, Political Studies, 44, 5 (1996), 850-71; for the international relations perspective on climate change issues see M. Peterson, Global Warming and Global Politics, (London, Routledge, 1996). 2 attracted the interest of theorists concerned with problems of global justice.2 Recent evidence suggests, for example, that present levels of GHG emissions will have particularly grave consequences both for the integrity of the biosphere and for the well-being of its future human and non-human inhabitants. In its most recent assessment of the global climate change issue, the authoritative Intergovernmental Panel on Climate Change (IPCC) concluded not only that ‘the balance of evidence suggests discernible human influence on climate change’, However, one of the most striking set of questions raised by climate change concerns the way in which social, economic and cultural resources should be distributed across generations. 3 but also that the long-term impact of climate change will have a predominantly, if not uniformly, adverse impact on the health, cultural life, and economic prosperity of future human populations.4 In fact, the IPCC went on to conclude that global climate change issues raise ‘particular questions of equity between generations.’5 While the IPCC seem to take it largely for granted that climate change raises questions of intergenerational justice, there have been few systematic attempts to test the robustness of these assumptions (1) across different theories of distributive justice and (2) in the light of some perplexing problems associated with extending the scope of these theories beyond the realm of dealings between contemporaries of the same society. 2 See M. Grubb, ‘Seeking fair weather: ethics and the international debate on climate change’, International Affairs, 71, 3 (1995), 463-96; H. Shue, ‘Avoidable necessity: Global warming, international fairness, and alternative energy’, in I. Shapiro and J. W. DeCew, eds., NOMOS XXXVII: Theory and Practice, (New York, New York University Press, 1995), 239-64; and H. Shue, ‘The Unavoidability of Justice’, in A. Hurrell and B. Kingsbury, eds., The International Politics of the Environment, (Oxford, Oxford University Press, 1992), pp.373-97. 3 J.T. Houghton, M.C. Zinyowera, and R.H. Moss, eds., Climate Change 1995: The Science of Climate Change, (Cambridge, Cambridge University Press), 1996, p.5. 4 See A.J. McMichael et al, ‘Human Population Health’, in R.T. Watson, eds., Climate Change 1995: Impacts, Adaptations, and Mitigation of Climate Change, (Cambridge, Cambridge University Press, 1996), pp. 564ff. It is worth noting that at least some of the IPCC’s research findings are controversial. However, even those who are sceptical of the relevance of the IPCC’s findings for questions of social justice, such as Wilfrid Beckerman, do not dispute the fact that climate change will impact upon the distribution of resources across generations to some extent. See W. Beckerman, Small is Stupid: Blowing the whistle on the greens, (London, Duckworth, 1995), pp.90ff. 5 K.J. Arrow et al, ‘Intertemporal Equity, Discounting and Economic Efficiency’, in J.P Bruce, H. Lee, and E. Haites, eds., Climate Change 1995: Economic and Social Dimensions of Climate Change, (Cambridge, Cambridge University Press, 1996), p. 130. This conclusion is consistent with the text of the earlier United Nations Framework Convention on Climate Change, according to which those nations party to it ‘should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.’ See United Nations Framework Convention on Climate Change, (London, HMSO Books, 1993), p.5. 3 Regarding issue 2, for example, there appears to be a widely held conviction that activities which compound the climate change problem are unjust, or unethical, because they harm generations yet unborn.6 In the next section, I outline briefly a prominent example of an identity-dependent theory of intergenerational justice. Next, I explain how this theory, by virtue of its identity- dependent structure, seems unlikely to generate stringent duties of intergenerational justice - for example, duties which could explain why existing generations should sacrifice certain benefits in order to preserve the climate system for their remote descendants. Next, I argue that whereas we might appeal to an identity-independent theory of intergenerational justice in order to explain the basis of such duties, there are considerations which suggest that it would be worth seeing if some version of the identity-dependent view can be defended. Finally, I develop one line of thought which seeks to do precisely this, which is developed in terms of the notion of collective interests. This paper argues, however, that a unique philosophical puzzle confronts those who wish to explain our responsibilities to future generations, for example regarding the climate change problem, in terms of the language of disadvantages and harms. The central problem developed is that it is unclear how exactly future persons can be harmed, or disadvantaged, by acts or social policies which are necessary conditions of their coming into existence. This presents a serious challenge, it will be argued, for a whole range of accounts of environmental, and intergenerational, justice which assume that actions or policies can only be wrong if they harm, disadvantage or victimise particular human or non-human animals (I call these identity-dependent accounts of justice). Inter gener ational justice as r esour ce conser vation One theory of intergenerational justice which seems consistent with the thought that existing generations owe it to their distant successors not to despoil the natural environment in general, and the climate system in particular, proposes that each generation should hand down to the next a no less abundant share of resources than that which it inherited from previous generations. According to an influential version of this theory proposed by Barry, the consumption of non-renewable natural resources over time ‘should 6 Onora O’Neill, for example, writes that ‘by burning fossil fuels prodigally we accelerate the green-house effect and may dramatically harm successors, who can do nothing to us.’ See O’Neill, Towards Justice and Virtue (Cambridge, Cambridge University Press, 1996), p.115. 4 be compensated for in the sense that later generations should be left no worse off. . . than they would have been without the depletion.’7 Barry comes to this resourcist view by the following line of thought. We might call this the resourcist view of intergenerational justice. 8 It would be unfair to require existing generations to leave all non-renewable resources untouched for the sake of future generations (that is to consume nothing); neither would it be possible for each generation to replicate in every detail the non- renewable resources it exhausts. However, it would appear to be a sound principle to aim for that existing generations ought not act so as to worsen the position of future generations by depleting non-renewable resources with no compensatory action or recompense. The fundamental issue for a theory of intergenerational justice, he thinks, is the appropriate consumption of non-renewable natural resources across time. When reserves of non- renewable resources (such as oil or natural gas) are depleted, the costs of extracting and then using these resources to generate electricity to heat homes, power cars, and run machinery are increased for future generations. There are also costs imposed upon these generations in virtue of the side-effects of depleting these resources, such as global climate change, air pollution and destruction of the ozone layer. As a consequence, it is crucial to establish how much existing generations may deplete stocks of non-renewable resources without violating the requirements of intergenerational justice. The idea of making recompense, however, typically leaves it open for a given compensation for a depleted resource, X, to be compensated by the provision of a given commensurable resource, Y - so long as this compensation enables the recipient to be no worse off than they would have been had the original resource, X, not been used up. Perhaps the most obvious example of such compensation in the intergenerational context would be the way in which improvements in technology (energy efficiency, for example) appear to compensate for losses of natural non-renewable resources (energy resources such as coal, for example). So long as we regard the climate system as a sort of ‘open access resource’ in its own right, it appears that resourcism will generate extensive obligations on the part of 7 B. Barry, ‘The Ethics of Resource Depletion’, in Democracy, Power and Justice, (Oxford, Clarendon, 1989), p.519 - emphasis added. 8 Barry, ‘The ethics of resource depletion’, pp.515ff. 5 existing generations (1) not to damage the climate system by continued profligate GHG emissions, (2) not to deplete non-renewable natural resources which are sources of GHGs, or (3) not to bring about the destruction of certain natural resources (such as coastal land) through climate change unless these actions are offset by an appropriate amount of compensation. Inter gener ational r esour cism and the non-identity pr oblem As a test for Barry’s theory of intergenerational justice, next consider the case of the Two Climate Change Policies: A choice must be made between two mutually exclusive, and exhaustive, climate change policies. The first, the Depletion Policy, involves a continuing commitment to non-renewable energy sources and associated high levels of GHG emissions with no commitment to any offsetting compensation measures for the sake of future generations. The second, the Conservation Policy, involves a move towards heavier reliance on renewable energy sources, tight restrictions on GHG emissions, as well as certain compensatory measures for the sake of future generations (such as increased investment in schemes to protect coastal areas which are vulnerable to climate change induced sea-level rises). Adopting the Conservation policy, it is known, will limit the damage caused by climate change. The Depletion Policy, though, would demand little or no sacrifice of present persons, and, because it would not check the increase of human originating GHG emissions, would have, relative to the Conservation Policy, more serious repercussions on human well-being (as associated with the social costs of adapting to higher temperatures and sea-levels, for example). In fact, it is known with some confidence that, after one or two centuries after the choice has been made, many of the people who would later live if the Depletion Policy is chosen will enjoy a significantly lower quality of life than those who would live if the Conservation Policy is adopted. However, the long- term disadvantages associated with choosing Depletion are not so severe that the persons who will come into existence if this option is chosen will lead lives 6 which are not worth living - i.e. they will not on balance regret that these people had ever been born. Next, consider the following line of argument which seems to undermine the reasoning behind many people’s intuitive objections to the Depletion Policy.9 As a consequence of the profound impact it will have on even the smallest details of all people’s lives, whatever decision is made in regard to the Conservation and Depletion policies will predictably, if indirectly, affect who mates with whom and when, and thus which individuals will be born in the future. This is because all persons owe their existence to the coming together of a singular egg and a singular sperm - and this ‘coming together’ is highly sensitive to antecedent events. In fact, after a few generations, and depending on which policy we choose, completely different sets of people will come into existence and these sets of people will owe their existence to this prior choice (they would not have been born if this choice had not been made). Moreover, as we can predict with some accuracy that the adoption of neither policy will result in any of our distant successors leading lives which are not worth living, it appears that choosing Depletion over Conservation will not result in any particular future person being harmed. On the other hand, such a choice would benefit many in the present generation by doing so, as even the limited sacrifices which Conservation will demand of existing persons will be on balance harmful. It seems then that the policy that ought to be adopted is, perhaps counter- intuitively, the Depletion Policy. Is there an objection to this line of argument and, if so, what is it? The need to answer these questions gives rise to what has been called the non-identity problem10 9 Various versions of this argument have been put forward, but by far the most influential is Parfit’s. See D. Parfit, Reasons and Persons, (Oxford, Clarendon Press, 1984), pp.351ff. and the way in which we answer them will have great significance for the way in which we approach issues of environmental, and intergenerational, justice. Take Barry’s resourcist view. The non-identity problem appears to pose a severe challenge for this view because it appeals to a strong connection between the requirements of justice on the one side, and the notions of harm and disadvantage on the other. Barry holds that failures to compensate future generations for deficits in the resource base they enjoy which are brought about by 10 Parfit, Reasons and Persons, p.359. 7 the actions of previous generations are unjust, and that they are unjust because such actions render people worse off than they otherwise would have been. But the non-identity problem demonstrates that there will be few, if any, cases where a future person will be rendered worse off by their ancestors’ profligate emissions of GHGs, because these people would never have existed had these profligate actions not been performed. This is not a problem which Barry’s view faces alone. All views of intergenerational justice which endorse what has become known as the ‘contractualist’ view of morality will be prone to the non-identity problem. According to contractualism, the source of moral motivation is ‘the desire to be able to justify one’s actions to others on grounds they could not reasonably reject’11 and an act is wrong only if its performance ‘would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.’12 For a person to reasonably reject (or raise a decisive objection to) an act or social policy on the contractualist view, this person must (1) be disadvantaged or harmed by it in some way and (2) they must have a complaint grounded in this disadvantage which is unanswerable (we might call this the Unanswerable Complaints Requirement).13 The problem with applying the unanswerable complaints requirement to the Conservation-Depletion choice, though, is that there appear to be no particular people here whom our acts will affect for the worse, and will thus have a complaint against us, if we choose Depletion. Moreover, as even mildly conservationist policies will require some sacrifices of existing persons, it seems that if any people have unanswerable complaints here it will be people who belong to the present generation (for example, those living in 11 T.M. Scanlon, ‘Contractualism and Utilitarianism’, in A. Sen and B. Williams, eds., Utilitarianism and Beyond, (Cambridge, Cambridge University Press, 1982), p. 116. 12 T.M. Scanlon, ‘Contractualism and Utilitarianism’, p.110. Barry endorses the contractualist view in both Theories of Justice, (Berkeley, University of California Press, 1989), pp. 284ff; and Justice as Impartiality, (Oxford, Clarendon, 1995), pp. 67-72. It is worth noting that Barry does not address the difficulties which the non-identity problem pose for his view in any of his published work on intergenerational and environmental justice, although in a recent article he does observe that contractual thinking cannot readily explain our duties to future persons or the non-human world. Thus he remarks that although ‘the interests of people in the future should have no less weight than those of people in the present’, it does not appear that ‘the contractual apparatus is useful in this context; it throws up more problems than it solves.’ See ‘Contractual Justice: a Modest Defence’, Utilitas, 8 (1996), p.365. Barry does not go on to state how he thinks we might reconcile contractualism with stringent duties of intergenerational justice, though it appears to be his desire to do so in the last of his three volume work A Treatise on Social Justice. 13 See Parfit, Reasons and Persons, who observes that on the Scanlonian view ‘an act cannot be wrong unless it will affect someone in a way that cannot be justified - unless there will be some complainant whose complaint cannot be answered’ (p.523). 8 the developing world who will suffer if their economies fail to keep growing) - and these complaints will be raised against the adoption of the Conservation Policy, not the Depletion Policy).14 I have focused, here, on the questions raised by the non-identity problem for theories of intergenerational justice, such as Barry’s, which explicitly endorse the contractualist view. However, similar questions will be raised for numerous other theories which appeal, at least in part, to the way in which acts or social policies harm particular persons when they are extended to deal with questions of intergenerational justice. It would appear to call into doubt, for example, recent attempts to use Locke’s well-known second proviso - according to which acquisitions of natural resources must leave ‘enough, and as good left in common for others’ - to ground stringent requirements of environmental conservation. 15 Theories such as these, which can be described as identity-dependent theories, direct us to make particular human beings, or animals, healthier or happier or rescue people from harm or disadvantage, particularly if these disadvantages arise through no fault of their own. Identity-dependent theories can be contrasted with identity-independent theories, according to which it can be wrong to perform acts or adopt social policies, even if they do not harm any particular persons. Such theories direct us to promote health or happiness, and to eliminate poverty or disease from an impersonal point of view (that is for reasons quite apart from the way in which particular individuals are affected by these phenomena). One way of illustrating the dilemma that the non-identity problem poses for identity-dependent theories of environmental and intergenerational justice, is to note that it tempts the proponents of these theories into holding four, mutually inconsistent, beliefs. According to these beliefs: 14 The possibility that climate change policies could well have as damaging an effect on the well-being of the present poor as they do beneficial effects for the well-being of future generations is raised by Beckerman and Malkin. The authors observe that ‘Global warming is far more glamorous and telegenic, of course, than the need for better toilets and drains in the Third World. But if we truly care about the welfare of our fellow world citizens, it is these kinds of environmental issues upon which we must focus our attention.’ See W. Beckerman and J. Malkin, ‘How much does global warming matter?’, The Public Interest, 114 (1994), pp.15-16. 15 J. Locke, Two Treatises of Government, (London, Everyman, 1924), Book II, Ch.V, Sec. 27, p.130. See also R. Elliot, ‘Future Generations, Locke’s Proviso and Libertarian Justice’, Journal of Applied Philosophy, 3 (1986), pp.217ff. 9 (A) adopting the Depletion Policy is wrong. (B) an act or social policy can be wrong only if it harms or disadvantages a particular person (C) an act or social policy harms or disadvantages a particular person only if it makes them worse off than they would have been had the act not been performed (D) the adoption of the Depletion Policy is a remote, but necessary, condition of the Depletion People coming into existence. If we are inclined towards an identity-dependent view, it seems that we must abandon either belief B or C (or possibly both) if we are to construct an account which explains why choosing the Depletion Policy in the above case would violate some requirement of justice.16 However, both B and C appear to have a great deal of intuitive appeal. David Heyd, for example, has argued recently for the view that the price of abandoning either of these beliefs, and with them the identity-dependent view of justice, is simply too high.17 Endorsing a view which he calls generocentrism, Heyd claims that obligations of social justice only can be owed to persons whose identities lie beyond the reach of the non-identity problem. But because persons whose identities do not depend on present decisions will almost invariably belong to the present generation, Heyd claims that we have no obligations of justice to the vast majority of future individuals. If this rigidly identity-dependent view could be defended, it would appear that the non-identity problem has massive implications for both the nature of intergenerational and environmental justice. It implies, for example, that depletionist acts or social policies which result in the emission of huge amounts of GHGs into the atmosphere, and a lowering of the quality of life of future generations, are neither unjust nor immoral.18 The limits of the non-identity pr oblem 16 I put aside the possibility of revising belief D in order to retain beliefs A, B and C - a move which seems at the very least inconsistent with the pre-eminent theories of personal identity. See Parfit, Reasons and Persons, pp.351-55. 17 Heyd, Genethics: Moral issues in the creation of persons, Berkeley, University of California Press, pp. 80ff. 18 It is worth noting that the non-identity problem appears to call into question the idea of obligations to both future humans and non-humans. This is because the identity of particular non-human animals will be as contingent on events which pre-date their existence as their future human counterparts. 10 Even if we suppose that the non-identity problem is of relevance for debates about our obligations to future generations, and the issue of environmental justice in more general terms, it does appear that considerations of non-identity are not problematic for all theories of environmental concern. One way of explaining why this is the case is to see how the problem relates to different ways of theorising about the environment. In what has become the standard taxonomy of such theorising, we might distinguish between anthropocentric, zoocentric, and ecocentric modes of environmental thought.19 Anthropocentric theories are those which attribute value only to states of human beings. One prominent example is the ‘green theory of value’ proposed by Robert Goodin. According to this view, the value of the natural world can be traced only ‘to its value to human beings and the place it occupies in their lives.’20 Zoocentric theories, by contrast, attribute value only to states of sentient creatures, including human beings. The idea here is that the desire to restrict the concerns of environmental justice to the well-being of human beings represents a sort of ‘human chauvinism’ 21 which ignores the fact that species membership is essentially ‘a morally irrelevant difference between individuals.’22 According to Singer, for example, if we are committed to the fundamental principle that each human being’s interests must be treated with equal concern and respect, we are also committed to accepting this principle of equality ‘as a sound moral basis for relations with those outside our own species [such as] non-human animals.’23 Finally, ecocentric theories reject the idea that the natural environment is only valuable to the extent that it provides a context for the flourishing of humans or other sentient creatures. In contrast, this mode of thought presupposes that components of the 19 See, for example, Brian Barry, Justice as Impartiality, pp.20ff. 20 R. Goodin Green Political Theory, (Cambridge, Polity, 1992), pp.42-3. A similarly anthropocentric stance on the value of the natural environment is endorsed by the World Commission on Environment and Development’s influential report Our Common Future, (Oxford, Oxford University Press, 1987). In the foreword to this report, Gro Harlem Brundlandt argues that human well-being ‘is the ultimate goal of all environment and development and development policies’ (p.xiv). 21 See R. and V. Routley, ‘Against the Inevitability of Human Chauvinism’, in Robert Elliot, ed., Environmental Ethics, (Oxford, Oxford University Press, 1995), pp.104ff. 22 Elliot, Environmental Ethics, p.9. 23 P. Singer, Practical Ethics, (Cambridge, Cambridge University Press, 1993), p.55. 11 natural world such as plant life, and possibly the biotic community as a whole, possess value independently of humans or animals.24 I do not think it is necessary to take a stand on which of these modes of theorising best captures our concerns about the environment, or indeed intergenerational justice, in order to realise that the non-identity problem only calls into question the scope of certain varieties of anthropocentric and zoocentric (and possibly ecocentric) theorising, namely, those which appeal to ethical categories that make essential reference to how things are for particular individual humans, other sentient creatures, or particular natural objects. In short, the distinction between identity-dependent and identity-independent theories of justice cuts across the distinction between different ways of theorising about environmental concerns and values (of which the anthropocentric, zoocentric, and ecocentric views are the most widely discussed). Nevertheless, there are at least three considerations which support the view that the non-identity problem is at least worthy of more attention than most environmental political philosophers have given it in recent years. First, even if we reject the view that identity-dependent theorising captures the whole of the story of intergenerational or environmental justice, it seems likely that it at least plays some part in this story. As a result it seems worth exploring the limits of such theorising. Second, environmental theories which makes no reference to how things are for particular individual entities, such as impersonal utilitarianism or biotic holism, are highly contentious to say the least. Parfit, for example, has done much to demonstrate that applying identity-independent utilitarian principles to questions of intergenerational distribution leads to paradoxical results.25 Moreover, the idea behind biotic holism, that ethical standing be extended to components of the biosphere (such as rocks, trees, species of plant or animal life) - or even the biosphere as a whole - seems wildly counter-intuitive to many.26 24 See P. Taylor, Respect for Nature, (New Jersey, Princeton University Press, 1986); K. Goodpaster, ‘On being morally considerable’, Journal of Philosophy, 78 (1978), pp.308ff. 25 One problem which Parfit raises is that, in line with the duty to maximise social utility across generations, utilitarianism could require us to adopt environmental policies which lead to a huge number of people existing in the future who lead lives of poor overall quality instead of policies which lead to a much small number of people existing in the future who lead lives of a much higher quality. See Parfit, Reasons and Persons, pp.381ff. 26 For criticism of the ecocentric view, see A. Brennan, ‘Ecological Theory and Value in Nature’, in R. Elliot, ed., Environmental Ethics, pp.195ff. 12 Third, as noted earlier, much theorising about the environment and intergenerational justice remains stubbornly tied both to considerations of harm and vinctimhood on the one side, and the interests, needs, rights, and desires of particular sentient creatures on the other. This is revealed in the brief discussion of Barry’s and Scanlon’s views above, but an additional example of note arises from the work of Shue which specifically addresses the issue of climate change. Shue has claimed recently, for example, that we should conceive of the harmful effects of climate change as analogous to those of passive smoking, the idea being that both the activity of smokers, and of profligate emitters of GHGs, render other non-smokers and non-emitters worse off through no fault of their own.27 Obligations to futur e collectivities Shue, however, fails to acknowledge that the fact that future persons owe their very existence to the profligate actions of previous generations in these cases means that they cannot apparently complain that they have been harmed, or rendered worse off, by them. In this respect, the analogy between the effects of passive smoking on the one side, and the effects of depletionist policies on future generations on the other, seems unsound. In this section of the paper I propose that a limited appeal to the interests, rights, or moral value, of certain human (or possibly non-human animal) collectivities can solve the non- identity problem in a limited, though important, range of cases; and as a result this appeal can explain, from an identity-dependent point of view, what is wrong with implementing policies which will have adverse long-term effects. I call views of intergenerational justice grounded in this appeal to human communities group-centred views. Group-centred views are special instances of identity-dependent views, such as Barry’s or Scanlon’s, which have been extended to include human (or animal) groups as being the subjects of moral consideration. these different views relate to each other is explored in figure 1 (page 14) Climate change and the claims of future collectivities The climate changes predicted by the IPCC and other researchers are expected to alter the cultural and social fabric of certain nations. There is possibly no better example of this 27 Shue, ‘Avoidable necessity: Global Warming, International Fairness, and Alternative Energy’, pp.245-6. 13 than the way in which these changes are expected to cause significant sea-level rises in the coming decades and centuries. In its latest assessment, the IPCC concluded that there will be an increase in global mean sea-levels of between 20cm and 86cm (with a ‘best estimate’ of 49cm) on 1990 levels by the year 2100.28 Moreover, it also predicts that this will have serious consequences for many nations in the future, but in particular for developing countries which are entirely, or have regions which are, low-lying. For example, these sea-level rises are expected to damage coastal cropland, and displace millions of persons from low-lying and coastal communities. Just some of the low-lying nations that the IPCC thinks are in most danger are the north-east coastal nations of Latin America, Bangladesh, Egypt and Holland.29 28 See R.A. Warrick et al, ‘Changes in Sea-level’, in J. Houghton et al, eds., Climate Change 1995: The Science of Climate Change, p.385. 29 See L. Bijlsma et al, ‘Coastal Zones and Small Islands’, in R.T. Watson et al, eds., Climate Change 1995: Impacts, Adaptations, and Mitigation of Climate Change, 289-324. The authors project that sea-level rise will have ‘negative effects on a number of sectors, including tourism, freshwater supply and quality, fisheries and aquaculture, agriculture, human settlements, financial services, and human health’ (p.292). 14 (Q1) Can an act be wrong if it does not affect any particular value bearing individual for the worse? No The Identity-Dependent View Yes The Identity-Independent View The Narrow Identity-Dependent (or Individualistic) View (Q2) Can an act be wrong if it affects a particular human or animal community (rather than any particular human or non-human animal) for the worse? No Yes The Wide Identity-Dependent (or Group-Centred) View Figure 1: Identity-Dependent and Identity-Independent Theories Perhaps the most disconcerting examples of nations vulnerable to sea-level rises, however, are the small island states of the South Pacific. The IPCC singles out these nations for special attention because of the especially, if not uniformly, adverse effects of sea-level rises on these states, including, in the worst case scenario, the possibility of complete disappearance. The combined effect of warming and sea-level rises on such states is expected to result in reduced soil fertility, reduced availability of agricultural land, and higher levels of soil erosion. It will be massively expensive to undertake even moderate adaptive responses for all of these effects, and even if the resources could be found (from international humanitarian assistance, for example) the costs to various communities in terms of maintaining access to traditional ways of life, and adapting to new ways of living, would be huge. These are all projections which the IPCC make with some confidence.30 30 See Bijlsma et al, ‘Coastal Zones and Small Islands’, pp. 296-98. See also E. Charles et al, A Future for Small States: Overcoming Vulnerability, London, Commonwealth Secretariat, 1997, pp.67ff. 15 Suppose the IPCC’s fears about the ‘best estimate’ figure of global sea-level rise of a half a meter by the year 2100 are proved accurate. Consider the case of The Displaced Islanders. Towards the end of the 21st century, the elders of a Pacific island state have assembled to assess the damage which climate change has caused their small community. In line with the IPCC’s projections, their island has been partially submerged by the Pacific Ocean, and their agricultural industry partially destroyed by a combination of soil erosion and soil infertility. Because of the lack of employment prospects and general social upheaval, moreover, the indigenous population has been cut to a small percentage of its twentieth century level. Finally, because of the combined impact of population displacement and other impacts, many cultural practices - practices which had been handed down through the generations - have been abandoned. The community, the elders agreed, was on the verge of collapse. Let us put aside the economic, social and health impacts of climate change on existing islanders, and in particular the important issues of international justice which this case raises. Has the island community itself been harmed by - can a complaint be made on its behalf against - the failure of previous generations to implement GHG limiting policies which may have prevented the unsavoury effects of climate change imagined above? According to the group-centred view, there is at least some basis to say that it has. The idea is that, despite the fact that no particular islander who exists in the future where depletionist policies had been adopted would also have existed had conservationist policies been adopted, various island groups and associations would exist whichever sort of policy had been chosen, and the interests of these groups are deserving of concern and respect in their own right. Here it is the interests of the many groups whose existence and flourishing are bound up with the island’s natural environment which generate certain moral requirements which we can say were violated by the Depletion Policy’s adoption. Suppose that the community was, prior to the sea-level rise, a traditional community dedicated to preserving a rich cultural and linguistic heritage. As the warming, and consequent sea-level rises, would result in the impoverishment of the islanders’ 16 linguistic and cultural heritage (most of the population bar the Elders, let us suppose, have fled to the mainland and now need to speak a different language in order to seek a living) the interests of the islanders as a collectivity might be thought to have been harmed by this. Because it assumes that there is inherent value in the survival of certain groups and that these groups possess valid moral claims qua groups, the group-centred view appears to avoid problems of non-identity. This is because the conditions of existence of many future groups (such as states, nations or cultures) will often be robust to the point that they will not be affected by environmental policy decisions made in the past. Obviously there are a number of simplifying assumptions being made here, such as the assumption that many of the adverse impacts of climate change on future populations can be prevented by the concerted efforts of present persons, governments and international institutions. However, the central idea - that climate change will in certain instances jeopardise the survival of certain communities and traditional patterns of life quite apart from the effects it will have on the individual members of these cultures - appears to be a plausible one.31 It is worth comparing the view proposed here with recent contributions to the issue of the rights or claims of minority cultures. It has recently been argued that the adoption of certain acts or social policies can be wrong by virtue of undermining the needs which particular individuals have to access a flourishing cultural or communal context within which to pursue their personal life-plans or conceptions of the good. For example, in his treatment of the issue of the claims of minority communities, Kymlicka argues that ‘membership in a cultural structure is what enables individual freedom, what enables meaningful choices about how to lead one’s life.’ 32 Kymlicka goes on to claim that the moral importance of individual freedom is such that persons belonging to disadvantaged minority cultures should be afforded additional rights and resources to compensate for the disadvantages they face as a result of membership in a minority culture. But while these rights are collective, in the sense that they are exercised collectively rather than individually, they are nonetheless individual rights in the sense that they are grounded in the interests of particular persons.33 31 The IPCC certainly think so, for they expect that ‘adaptation to sea-level-rise and climate change will involve important trade-offs, which could include environmental, social, cultural values’ (p.292). By contrast, according to the group-centred view, the 32 W. Kymlicka, Liberalism, Community, and Culture, (Oxford, Clarendon Press, 1989), p.208; and Multicultural Citizenship, (Oxford, Clarendon Press, 1995), pp.80ff. 33 See Kymlicka, Multicultural Citizenship, pp.34ff. 17 communities which future people will belong to are deserving of concern and respect in their own right; and if present actions have the result either that these communities die out altogether, or are damaged in the sense that various communal practices are undermined, they are morally objectionable at least in this one important respect.34 In this regard, the group-centred view shares much in common with Charles Taylor’s work on multiculturalism and the politics of recognition, and in particular on the issue of the value of communities. Taylor denies that the worth of communities is derived from the value it has in securing the ‘cultural needs’ of individuals, such as their seeking to give meaning to their lives. He gives two reasons for this. First, Kymlicka’s individualistic view neglects the moral importance of various communities qua communities. The idea here is that communities are often not merely associations of value-bearing individuals, but rather moral entities in their own right. Secondly, the individualistic view cannot make space for the way in which many persons have the intense desire that the community, or communities, they belong to continue to survive and flourish for reasons unrelated to the positive impact that this will have on their own well- being, or on the well-being of their compatriots taken as individuals. 35 As such, Taylor argues that Kymlicka’s individualistic view might be valid perhaps ‘for existing people who find themselves trapped within a culture under pressure, and can flourish within it or not at all. But it doesn’t justify measures designed to ensure survival through indefinite future generations. For the populations concerned, however, that is what is at stake.’36 34 The idea of group-centred requirements of intergenerational justice might also be contrasted with the more obviously ‘communitarian’ idea that present persons should protect the conditions of communal flourishing because the communities which they belong to are in fact essential components of their identity as persons. Consider, for example, the communitarian theory of intergenerational justice defended in A. de Shalit’s Why Posterity Matters, (London, Routledge, 1996), especially Ch.1. The idea is also to be contrasted with recent contributions to the ‘deep ecology’ mode of environmental thought, according to which duties of environmental conservation flow from the fact that human identity is not merely moulded by membership in human communities, but in addition by it’s connection to natural processes and the biosphere itself. See, for example, W. Fox, Toward a Transpersonal Ecology, (Boston, Shambala, 1990). By contrast, the key to the group-centred view is the idea that adopting social policies which undermine the integrity or viability of certain human, or non-human animal, communities is morally regrettable because this fails to afford these communities with the respect that they deserve as moral entities, not that they are regrettable in virtue of undermining the motivations of self-transcendence entertained by existing human beings. According to the terminology introduced earlier, and developed in figure 1, it appears that 35 C. Taylor, ‘The Politics of Recognition’, in A. Guttman, ed., Multiculturalism: Examining the Politics of Recognition, (Princeton, Princeton University Press, 1994), pp. 40-41. 36 Taylor, ‘The Politics of Recognition’, p. 41. 18 Taylor is advocating a widely identity-dependent (or group-centred) view to Kymlicka’s narrowly identity-dependent (or individualistic) view. One advantage associated with embracing the group-centred view is that, in virtue of retaining an identity-dependent structure, it appears readily reconcilable with the views of both Barry and Scanlon. Recall that, for Scanlon, an act is wrong only if its performance ‘would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.’37 However, contractualists do not appear to be committed to the idea that the complaints that they view as unanswerable must be restricted to those arising from harms, or wrongs, done to particular persons. This is demonstrated by Scanlon’s understanding of the scope of contractualism, according to which (1) moral beings must possess a good in the sense that ‘that there be a clear sense in which things can be said to go better or worse for that being’, and (2) moral beings must ‘constitute a point of view; that is there be such a thing as what it is like to be that being.’ It was argued above that contractualism and the unanswerable complaints principle this view of morality endorses, seem problematic in the context of non-identity cases such as the Depletion-Conservation choice, as the Depletion People, taken one by one, do not appear to have a legitimate complaint against the Depletion Policy’s adoption. 38 While I have not the space here to construct a more positive defence for this line of thought, it is worth mentioning that many peoples’ moral intuitions certainly point in this direction. Consider, for example, the widespread intuition that the deaths of large numbers of persons from small indigenous communities (which result in the deaths of these communities) are more regrettable from the moral point of view than equivalent numbers of deaths of unrelated individuals. In any case, the suggestion is that we ought to think These two conditions must hold, Scanlon thinks, for us to be able to hold that the notion of justification can be applied to an entity. But while there are certainly differences between the ‘points of view’ of particular human beings on the one side, and particular groups of human beings on the other, there seems to be no insurmountable barrier in the way of those who wish to argue that there can be such a thing as a group point of view, or perspective on things, or that things can go better or worse for at least some groups. 37 Scanlon, ‘Contractualism and Utilitarianism’, p. 110. 38 Scanlon, ‘Contractualism and Utilitarianism’, pp. 113-14. 19 seriously about revising Scanlon’s account of moral reasoning to read that ‘an act is wrong only if it affects some particular individual or group in a way that cannot be justified.’ I have space to mention only one problem with using the group-centred view to explain how an identity-dependent objection to depletionist policies might be defended in the light of considerations of non-identity. Suppose that a course of action which we think will harm a certain future group’s interests would also be a necessary condition of that group’s existence. In such cases it might be that the approach will be plagued by a new group-centred version of the non-identity problem, which we might call the extended non- identity problem. This new version of the non-identity problem suggests that a representative of some community who claims that the interests of their community had been harmed by the profligate environmental activities of past generations would encounter great problems in defending this view. In such circumstances it seems that the group-centred view could not be used to ground an identity-dependent objection to these activities; and as a result it would seem that only identity-independent considerations would stand in the way of the claim that it would not be wrong for depletionist policies to be adopted by existing generations. It is, of course, worth noting that conditions of non-identity will obtain much less regularly in the case of groups than in the case of individual persons. This is because the identities of many groups and communities are more robust - nations, for example, typically outlive their individual members many times over. As a result, the extended non- identity problem only partly rebuts the group-centred view. The conclusion we should take from this, I think, that this view does indeed offer at least some defence of an identity- dependent environmental, and intergenerational, ethic. ADPC7.tmp University of Warwick institutional repository 
work_iwnndj7nazak7e6zltpvohwvzq	----	Microsoft Word - abc_cpsfinal122010   1 Determinants of Attitudes towards Transitional Justice: An Empirical Analysis of the Spanish Case Paloma Aguilar, Laia Balcells and Héctor Cebolla1 Forthcoming: Comparative Political Studies Vol 44, Issue 10 (October 2011) Abstract: Much has been said about the institutional determinants of transitional justice (TJ), yet we still know little about the determinants of citizens' attitudes towards restorative policies aimed at addressing human rights violations of the past. This paper draws on an original survey of a representative sample of Spanish citizens conducted in 2008. One year earlier, the Spanish socialist government had approved the so-called "Law of Historical Memory", aimed at providing restitution for victims of the Spanish Civil War (1936-1939) and the Francoist dictatorship (1939-1975). We analyze individual-level attitudes towards a set of TJ policies (i.e. truth commissions, trials, and symbolic reparations) in a comprehensive overview of the field. We study the effect of different sets of variables: individual socio-demographic and ideological factors, family and socialization variables, and context-related factors. Individual ideology, family victimization during the dictatorship and regional context appear as highly relevant in explaining individual attitudes towards TJ policies. Keywords: Transitional Justice, Spain, Memory, Victimization, Socialization                                                              1 Paloma Aguilar is Associate Professor of Political Science at UNED (Spain); Laia Balcells is researcher at Institute for Economic Analysis, CSIC (Barcelona, Spain); Héctor Cebolla is Assistant Professor of Sociology, UNED (Spain). This paper has benefited from comments and suggestions made by Juan Linz, Roger Petersen, Gemma Sala, Elisabeth Wood, the members of the Transitional Justice panel at the Midwest Political Science Association Meeting (2009), and the participants in the 4th MIT-Harvard-Yale Civil Conflict Conference (2009). We thank the CIS for conducting the survey, as well as the people in the Research Department for giving us extremely valuable feedback. We also thank Eudald Lerga, Ana Arjona, David Backer and Pablo De Greiff for their helpful comments and suggestions. The usual caveat applies.     2 1. Introduction The expression “transitional justice” (hereafter, TJ) refers to a set of procedures that are predominantly adopted during democratization periods –but also sometimes when democracy has been consolidated (Aguilar, 2008a; Thoms et al., 2008)– in order to deal with atrocities committed by the former regime or during a violent conflict. TJ procedures fall into three broad categories: (1) justice measures aimed at punishing former perpetrators for human rights violations or depriving them of illegitimate privileges; (2) policies aimed at providing material and/or symbolic reparation for victims; and (3) truth revelation procedures.1 The study of TJ policies is a burgeoning field of social research, but there are still a number of lacunae to be filled. For example, while the vast majority of the literature on TJ has focused on explaining the institutional determinants of these policies or on the normative discussion about their desirability,2 there has been little research on public opinion regarding TJ. In some existing works, the opinion of citizens has been inferred from the pressures exerted by social organizations (Skaar, 1999). This is problematic, because it cannot be assumed that there is a direct relationship between the demands promoted by organizations or pressure groups and the general preferences of the citizenry.3 Moreover, many of the existing scholarly contributions on bottom-up demands for TJ draw on ethnographic research including interviews and/or observational participation (Theidon, 2006; Ferreira, 1999), interviews with specific focus groups (Grodsky, 2008; Martín Beristain, 2008; Strover and Weinstein, 2004; ICTJ, 2004), or interviews with particular subgroups of the overall population, e.g. victims (Espinoza Cuevas, et al. 2003; ICTJ, 2008) or pressure groups (Backer 2003). In short, barring very few exceptions, scholars have not relied on systematic generalizable evidence of individual attitudes towards TJ policies.4 In this paper, we   3 make a two-fold empirical contribution to this literature: first, we explore data from a hitherto unexploited representative survey of the Spanish population, which we designed and was implemented by the Spanish Centro de Investigaciones Sociológicas (hereafter, CIS) in April 2008; second, this survey is a monographic study, which provides us with detailed information on different TJ measures (i.e. commissions, trials and symbolic reparations), as well as on a number of independent and control variables. This type of fine-grained data is a valuable resource from which we gain empirical leverage. At the theoretical level, this paper contributes to a better understanding of TJ by presenting a set of hypotheses on the determinants of individual-level attitudes to these policies, which are grounded in TJ literature and also in the literature on victimization and intergenerational transmission of identities. The latter is particularly relevant for understanding the Spanish case, where the most traumatic and violent events are not recent (the Civil War ended 70 years ago, the dictatorship more than 30 years ago), and therefore a vast majority of the population did not experience the violations at first hand. Even though we focus on the Spanish case, we intend to generate implications for other transitional/post-transitional countries that share some basic characteristics with Spain. This paper is organized as follows: in section 2, we introduce the Spanish case and outline its importance for the study of transitional and post-transitional justice; in section 3, we present the theoretical framework and hypotheses, which we empirically test in section 4. To conclude, we discuss our findings and their implications for other cases.   4 2. Transitional Justice in Spain The Spanish case is particularly appropriate for TJ research: the severe brutality and prolonged violations perpetrated by the Franco regime against those on the losing side in the Civil War (1936–1939), and against all those who subsequently refused to comply with its dictates (1939–1975), are well-known. Throughout the civil conflict, tens of thousands of people on both sides lost their lives as a result of both legal and extrajudicial executions.5 However, political violence continued during the early years of the postwar period; estimations suggest that the Franco regime executed approximately 50,000 people, that the number of prisoners in concentration camps amounted to 300,000, and that hundreds of thousands were forced into exile. Throughout Franco’s entire rule, tens of thousands of people who had been expelled from their jobs after the war as a result of their ideological leanings were systematically denied reinstatement. The regime also refused to offer pensions or any compensation whatsoever not only to war-disabled veterans and civilians, but also to the widows and orphans of defeated combatants. Likewise, political parties, trade unions and private individuals had their assets seized simply for having sympathized with the Second Republic (1931–1936); meanwhile, those who had supported the victors enjoyed numerous perks and privileges. After Franco’s death, the presence of the traumatic memory of the Civil War and the obsessive desire to avoid its repetition encouraged the main political actors and the majority of Spanish citizens to look to the future by putting aside the thorniest aspects of the past. It was firmly believed that this was the only way to ensure a peaceful transition to democracy (Aguilar, 2002, 2008b). As in other cases –Chile, Uruguay and Hungary–, political elites reached a tacit agreement to leave the dictatorial past out of the political debate. In this context, the Parliament enacted the Amnesty Law of 15   5 October 1977, whose purpose was to free political prisoners and to shield the dictatorial past from any judicial proceedings. Among the myriad possible TJ policies that could have been adopted during the transition to democracy, only material reparation measures targeting Civil War losers were approved. These policies were limited and fragmented. TJ measures such as official condemnation of the dictatorship, symbolic measures aimed at the reparation of all the victims of the dictatorship, the creation of a truth commission, or the quashing of Francoist trials -not to mention bringing perpetrators of human rights violations to trial- were never implemented. Nevertheless, when most Spaniards thought that the most painful episodes of their history had been buried once and for all, the past erupted again: in 2000 a private association devoted to the task of locating and exhuming mass graves dating from the Civil War (called the Asociación para la Recuperación de la Memoria Histórica) triggered a social and political debate about the shortcomings of previous TJ policies.6 In this context, the conservative social and State-wide political forces (e.g. the Partido Popular) positioned themselves against “digging into the past”. In contrast, the most progressive political parties and social associations (e.g. the Partido Socialista Obrero Español and the political federation led by the former Communists, Izquierda Unida) were in favor of them. The most important quantitative and qualitative leap forward in relation to TJ legislation took place during the 2004-2008 legislative term, especially with the passing of “Law 52/2007, of 26th December,” which “recognizes and broadens the rights and establishes measures in favor of those who suffered persecution or violence during the Civil War and the dictatorship”.7 Our survey was conducted in the immediate aftermath of the heated debate that accompanied the passing of this law. In this context, Spaniards had diverging opinions   6 towards TJ measures; we wonder on what explains them. Firstly, one could argue that individual characteristics such as ideology influenced opinions on the issue: leftist sympathizers and militants were probably more supportive of a law that was being promoted by a left-wing party. Secondly, personal experiences that proved relevant in explaining preferences towards TJ in other contexts8 could only partially explain these attitudes; most of the Spanish population in 2007 had not experienced the Civil War at first hand, while people under the age of 30 did not even have experience of the dictatorship. Thirdly, since reparation policies in the 2007 “Law of Historical Memory” did not focus on monetary compensations for victimized people, greed or self-interest were irrelevant in this context. Finally, regional factors could also have been important: people living in particular regions may have had different perspectives on TJ owing to their different collective histories during the Civil War and the dictatorship, and also because of their current ethnic identities. 3. Theoretical Framework In this paper, we argue that attitudes to TJ are determined by a combination of individual, family and context-related (i.e. regional) factors. Over the following pages, we outline the theoretical significance of each of these factors, and the different mechanisms through which they are likely to have an impact on attitudes towards TJ. Individual Factors Individual characteristics are essential in explaining variation in political views; the list of relevant individual-level factors explaining variation in attitudes towards TJ is potentially endless. Therefore, we concentrate only on those we deem most relevant theoretically: The respondent’s age is an obvious factor in explaining differences in political views. With regard to TJ on past events, one would expect older people to be more   7 reluctant to support reparation policies because of their personal proximity to traumatic events. The mechanism driving this is fear, which might be operating more or less specifically: on the one hand, people may have a specific fear of reprisal from those who would be negatively affected by these policies (i.e. ex-victimizers);9 on the other hand, people may have a more general fear of a return of the conflict or the authoritarian regime (Nalepa 2007). While it could be argued that direct memories of traumatic events could also be stimulating a desire for reparations, we expect risk-aversion to prevail among those who witnessed the civil conflict or the ancien régime.10 Furthermore, with regard to the specific fear of reprisal, we can expect it to have a differential impact on TJ preferences depending on contextual factors such as the size of the locality where the individual lives: in larger municipalities, anonymity is greater than in smaller towns; in smaller settings, politics is more personal, and people are more likely to feel that reparation policies may have specific (i.e. negative) consequences for their own safety. The way individuals evaluate TJ measures should be clearly determined by their ability to understand not only the past in general, but also key historical events. Education is probably the single most important individual characteristic accounting for differentials in the extent to which individuals are able to do so, yet it may not be the only one: interest in politics might also play a role in their ability to evaluate these policies. For obvious reasons, individuals may have different views about TJ depending on their self-placement on the ideological axis. The direction of the effect will depend on the country’s history, including the trajectory of its political parties.11 Finally, religiosity and/or ethnicity are other individual characteristics to be considered insofar as victimization affects religious and/or ethnic groups unevenly.   8 Socialization and Family Factors The traditional focus of sociologists on the impact of family views and values in the formation of individual perceptions about life is reasonably intuitive. The literature on intergenerational transmission of political views underwent rapid growth in the seventies when Styskal and Sullivan (1975: 516-7) concluded: “Parents - the most trusted and revered of individuals in a person's early years - are the single most important force in transmitting party identification […] that choice of party, the substantive meaning of the party for the individual and the individual's orientation toward issues are more the products of loyalties derived from parents early in one's life, when cognitive processes are relatively underdeveloped, than the result of reflective decisions about alternatives in the political arena.” Indeed, despite the popular belief that during adolescence children will turn away from their parents in search of alternative guidance for value orientation, most empirical research reveals a striking concordance between the worldviews of parents and those of their (adult) children (Acock and Bengtson, 1980; Beck and Jennings, 1991; Dalhouse and Frideres, 1996; Jennings and Niemi, 1974; 1981; Jennings, Stoker and Bowers, 2009; Miller and Glass, 1989). Thus, individuals are expected to favor TJ policies to the extent that their parents do so. Moreover, we might argue that individuals will favor TJ policies if they adopt the condition of “victim” from their ancestors. Psychological effects of violence and other forms of victimization have been widely studied in the academic literature on conflict (e.g. the well-known “Post Traumatic Stress Disorder” or PTSD). However, the specific effects of traumatic experiences on individuals’ identities and behavior have generally been overlooked (Balcells, 2007), partly due to a lack of appropriate data for conducting empirical analyses. Although the recent development of surveys and experiments in postwar settings has prompted the development of empirical studies tackling these issues, the evidence is still quite fragmented and refers mainly to the short-term effects of   9 traumatic events (e.g. Bellows and Miguel, 2008). Neither do we find a much better state of the art in the study of individual experiences of dictatorships, and their subsequent preferences and opinions, both during and after democratization processes. This literature has usually focused on the role of political activists or highly committed individuals (Maravall, 1978; Ferreira, 1999), with only some recent developments concerning rank and file individuals (Wittenberg, 2006). Thus, the existing literature cannot provide an answer to the question of whether victimization generates long-term consequences on attitudes towards TJ measures. Nevertheless, it can be argued that, given the positive impact of personal victimization on support for reparation policies on a short-term basis (Nalepa, 2007; Gibson, 2002, 2004a, 2004b, 2007; Biro et al. 2004), victimizing experiences of family ancestors should also lead to favorable attitudes regarding reparation policies. The mechanism leading towards an intergenerational transmission of these attitudes should be the same as that which explains intergenerational transmission of political identities. In short, we can formulate the conjecture that victimization is a condition that is transmitted to descendants through socialization processes. Contextual Factors The literature has nevertheless found that the family is not the only socialization source for individuals: adult re-socialization experiences (both individual -partner, friends- and contextual) can erode the primary socialization effects of the parents. Thus, the broader context in which the individual lives, works and relates to other people can also have an influence on attitudes towards policies. Contextual factors can be varied and complex, as are the mechanisms through which they operate; a clear contextual variable, albeit not the only one, is the individual’s political community, e.g. the locality or the region. Within the community, the individual interacts according to a particular   10 set of cultural repertoires and discourses, and there is peer-reinforcement of these discourses. Irrespective of individual and family factors, if the citizens of a particular region or locality perceive that they have been distinctively victimized, we may think that they will hold more favorable attitudes towards TJ policies than elsewhere. [Figure 1 about here] Figure 1 summarizes the combination of factors which, according to our framework, should have an impact on individual preferences for TJ, and which should explain variations in these preferences among individuals. While depicted as independently affecting preferences, these factors may also be intermingled: for instance, socialization within the family can be affected by contextual factors (i.e. socialization and transmission of victimization within families may vary across regions). However, given the endless list of connections that could be drawn, and the impossibility of generating clear-cut observable implications for each of these interactions, we treat them as independent factors.12 4. Empirical Test In this section we will verify the explanatory power of each of the factors indicated above by examining data from the aforementioned CIS survey, which sampled 2,936 respondents throughout the country and is representative of the over-18 Spanish population.13 Conducted over a 10-day period through face-to-face interviews lasting around 30 minutes, this monographic survey on “historical memory” included 70 questions about historical and political knowledge, political attitudes and behavior, and socio-demographic characteristics. Following a common practice in the literature, we operationalized support for three different types of TJ measures with different survey questions:   11 1) For attitudes to the creation of a truth commission to inquire into past abuses: “From your point of view, should an investigation commission (independent from the government) be created in order to clarify human rights violations that took place under Francoism?”14 2) For attitudes towards trials to judge those responsible for past human rights violations: “Should the authorities that violated human rights under Francoism be brought to trial/judged?”15 3) For attitudes towards symbolic reparations, we used responses (agree/disagree) to the following statement: “Symbols that pay tribute to Franco and Francoism should be withdrawn from public spaces.” 16 To test our hypotheses, we include three subsets of independent and control variables in a set of step-wise binary and ordinal logistic regressions. We include a first set of independent variables measuring individual characteristics: (1) Age: we expect older respondents to be more reluctant to support TJ measures; we also expect to find some sort of interaction between age and the size of the respondent’s locality due to the anonymity provided by large localities.17 (2) Interest in politics:18 we expect exposure to the public debate concerning the “Law of Historical Memory” to promote clear-cut positions on the issue. We include this variable as a control.19 (3) Education:20 education increases the individual’s sophistication and thus her ability to formulate her own views about past events. (4) Religiosity:21 the religious division was a significant one in the context of the Spanish Civil War and the dictatorship -on the one hand, members of the clergy were victims of leftist violence during the conflict; and on the other, the Catholic Church sided with Franco during the Civil War and the dictatorship. Thus, we expect religiosity to have a negative impact on support for TJ measures.22 (5)   12 Ideology:23 we expect a clear-cut negative effect of right-wing ideology on support for TJ policies. We include a second set of variables proxying family characteristics and socialization: (1) Family Identity during the Civil War:24 those whose family identified with the Nationalists during the Civil War should be more negative towards TJ policies, and vice-versa. (2) Family talked about politics:25 this variable is included to control for the extent to which politics being discussed at home may influence the intergenerational transmission of identities and victimization. (3) Father’s ideology: this variable captures the parents’ ideology: 26 we expect a negative impact of right-wing parent ideology on support for TJ. (4) Family/Individual Victimization: we take into account victimization both by the Francoist side in the Civil War and by the Francoist dictatorship.27 The two variables included in the regressions are: (4.a) Victimization during the Civil War: dummy with value 1 if the respondent argues that she or a member of her family was victimized by the Francoist side during the Civil War, and value 0 if not.28 (4.b) Victimization during the dictatorship: dummy with value 1 if the respondent argues that she or any member of the family was victimized by the Francoist dictatorship, and value 0 if not.29 We expect people whose ancestors (or who themselves) have been victimized to be more supportive of TJ.30 Victimization experiences should also have a differential effect depending on the individual’s age: the older the person is, the more intensely she will feel the victimizing experience; we will test this with an interaction term in the regression models. A final set of variables is intended to measure contextual factors. As previously stated, we focus on the regional level. The Francoist dictatorship strongly repressed cultural and linguistic minorities within Spain; this led to a collective sense of victimization among these groups, which has persisted through time. Given that our   13 survey has representative sub-samples for the Basque Country and Catalonia31 -two territories with the most distinguishable ethnic identities and strongest sense of collective victimization in Spain- we can easily incorporate a regional dummy variable into our regressions. In this respect, we expect the (1) Basque Country and (2) Catalonia dummies to have a positive effect on support for all TJ measures. Figures 2-4 show the distribution of the responses in the different items constituting our three dependent variables: the creation of a truth commission to investigate human rights violations under Francoism (Truth Commissions), the organization of trials to judge those responsible for human rights violations during Francoism (Trials), and the withdrawal from public spaces of symbols paying tribute to Franco and Francoism (Symbols). [Figures 2-4 about here] These graphs indicate that, except in the first case (truth commissions), Spaniards are overtly supportive of TJ policies. This is interesting, as the strong resistance to the “Law of Historical Memory” displayed by the main right-wing party in Spain (Partido Popular) and the conservative mass media would lead us to expect a greater degree of opposition to these policies. We also observe that people are more prone to agreeing to symbolic reparations (withdrawal of symbols) than to the other two TJ measures (truth commission, trials). This is rather intuitive and consistent with patterns observed in other cases, e.g. the American South (Sheridan, 2009). Additionally, trials receive more support than truth commissions, and truth commissions elicit a greater number of hesitant answers than the other policies.32 Table 1 shows the results of the first logistic regression analyses for the dependent variable Commissions, indicating the likelihood of supporting this particular reparatory measure.33 Model 0 incorporates an interaction term between Age and Size   14 of locality, which should allow us to capture the varying effect of Age conditional on the degree of anonymity in which individuals live. We do not include this interaction in the remaining models. Model 1 includes only individual factors, Models 2-3 add socialization and family factors, Model 4 includes an interaction between age and victimization, and Model 5 completes the specification with context-related variables. [Table 1 about here] Model 0 in Table 1 reveals an interesting result that confirms our expectations regarding the interaction between respondent’s Age and Size of locality: the main effect of age is negative, i.e. the older the respondent, the less likely she is to accept the creation of commissions. However, this main effect changes depending on whether the individual lives in a small town or a large city: older people in large cities are less reluctant to support the creation of commissions than those in small towns (regardless of age, the smaller the town, the more reluctant an individual will be). Again, this can be explained by the fear of negative reactions in smaller (and less anonymous) locations. This interactive effect disappears when controlling for other individual level variables, especially self-placement on the left-right scale and religiosity.  Our basic expectations about individual level variables are confirmed by Model 1. The effect of Age is again negative and statistically significant; Religiosity and Ideology are both negatively associated with the likelihood of accepting commissions, which means the more religious and more right-wing the person is, the more reluctant she is to support this measure. It is somewhat striking that Education and Interest in politics are not statistically significant. This could be due to the fact that the TJ debate, far from being a transversal ideology-free debate, is intensively politicized. Model 2 tests the impact of family-level ideology factors. It suggests that individuals whose families sided with the Francoists during the Civil War are   15 significantly less prone to accept commissions than other individuals. There are no differences in the propensity of individuals whose families were on the Republican side and those whose families were divided and fought on both sides. Thus, with regard to their family histories, individuals are significantly less likely to accept commissions if they come from a homogeneous Nationalist background; having had at least part of one’s family on the Republican side increases acceptance of this measure. The ideology of the respondent’s father has no impact on the dependent variable, although the sign of this estimate is as predicted (i.e. negative). An interesting result drawn from this model is that individuals are more likely to support the creation of commissions when the family used to talk about politics. This could be taken as evidence confirming the importance of socialization in the formation of attitudes towards TJ. Interestingly, this effect decreases after controlling for the victimization variables. Model 3 tests the family victimization hypotheses. Interestingly, victimization does not appear to be a homogeneous experience. Being a victim of the Francoist army in the Civil War has no impact on our dependent variable. However, individuals reporting experiences of victimization during Francoism are more likely to accept commissions than others; the magnitude of this effect is quite important and it is highly statistically significant. Therefore, more recent victimization (i.e. during the dictatorship) appears to be more relevant than victimization during the Civil War. This result is consistent with the fact that the truth commissions would focus on human rights violations committed under the dictatorship, and not during the Civil War. We have tested for the interactive hypotheses between reported victimization and age (model 4). Our expectation was that the impact of victimization would decrease among younger respondents, yet we cannot fully confirm this conjecture as this   16 interaction is not statistically significant (although it has a positive sign). Thus, victimization seems to be strongly transmitted to new generations: its impact, which is positive and highly statistically significant, does not change with the respondents’ age. Note also that the main effect of Age scarcely changes and remains negative in the victimization models; this means that, for those who report past experiences of family victimization, support for TJ is independent of their age. Finally, Model 5 indicates that Catalan respondents do not differ from those from other regions in their propensity to accept commissions, whereas the Basques are generally more likely to support this sort of reparation. [Table 2 about here] Table 2 depicts the results for the dependent variable Trials. In this case, Model 0 cannot fully confirm our hypothesis regarding the differential effect of age conditional on town size: the interaction is not statistically significant. Model 1 is fairly consistent with its equivalent in Table 1; it confirms the relevance of individual-level explanatory variables: Ideology, Religiosity, and Education (this was not statistically significant in Table 1). More educated people are less supportive of TJ. Model 2 reveals additional differences with respect to what we observed in Table 1: coming from a family who sided with the Republicans during the Civil War increases the likelihood of supporting trials. And the opposite is also true: respondents whose families sided with the Francoists are significantly less supportive of trials. Model 3 rejects a general impact of victimization on the acceptance of past perpetrators being brought to trial: indeed, none of the victimization variables is significant. However, Model 4 reveals a significant interaction between age and reported victimization by the Franco regime: older respondents reporting victimization are significantly more in favor of this measure than the rest of the sample. Older   17 respondents who report no victimization clearly reject holding trials, and younger people reporting victimization also oppose this measure, which indicates that victimization experiences lead to different attitudes towards reparatory measures depending on the individual’s age. In model 5, both regional dummies are statistically significant. Respondents in the Basque Country and Catalonia are more likely to accept the holding of trials than respondents in other territories, and this effect is greater in the former territory than in the latter. [Table 3 about here] Table 3 tests the determinants of attitudes towards symbolic reparation measures; the dependent variable measures approval of the withdrawal of symbols of Francoism. The first model (Model 0) suggests -as in Table 1- that even though older respondents are generally more reluctant to support this symbolic reparation, those living in larger urban areas are less likely to be so. Furthermore, as in Table 1, the only significant socio-demographic variables are -in addition to respondent’s age- Ideology and Religiosity. In this case, the position of the respondents appears to be heavily dependent on family variables (Model 2). Indeed: there is an almost linear association between family leanings in the civil conflict and respondent attitudes regarding this measure: whenever the respondent recalls a Francoist past in her family, her likelihood of accepting this form of symbolic reparation significantly decreases, as compared to those who claim to have roots on both sides. And when the individual comes from a family that fought on the Republican side, she is more likely to accept this reparation, as compared to those whose relatives were divided on both sides. Victimization (Model 3) is more significantly related to our dependent variable than in the previous models (Tables 1 and 2). Both estimates of victimization (victimization by of Francoism and bythe Nationalist side during the Civil War) are significant here. Interestingly, the   18 interaction between victimization and respondent’s age (Model 4) is not significant, implying that this effect is equally important among respondents of all ages. Our final model (Model 5) reconfirms the Basque and Catalan specificity; this regional effect is again stronger in the former region than in the latter.34 A caveat to our empirical results is that the observed effects of victimization on attitudes towards TJ are an artifact of an endogenous relationship between reported victimization and ideology. It could be that those identified with the left are more prone to report past victimization experiences than those who identified with the right. A graphic inspection of the distribution of these two sub-samples along the ideological axis allows us to observe that these two subsamples have almost undistinguishable distributions. [Figure 5 about here] However, a Kolmogorov-Smirnov test performed on the distribution along the ideological axis (i.e. left-right) of the sub-samples of victimized/non-victimized individuals suggests that these samples are significantly different, non-victims being located further to the right than non-victims (Table 4). This indicates that endogeneity cannot be completely discarded. [Table 4 about here] Unfortunately, we do not have an instrumental variable for ‘victimization’, or an experimental design, which would allow for a better identification strategy. We nevertheless believe that the fact that we have controlled for the effect of each of these variables (i.e. ideology and victimization) on the other by including them in the same regression model should give us some degree of methodological comfort.   19 To summarize, the general patterns identified in these results above are as follows: respondent’s ideology and religiosity are decisive determinants of support, more conservative and religious people being the most reluctant towards TJ policies. The fact that the Catholic Church, in contrast to what happened in countries like Argentina, has never shown any regret for its support of Francoism (both during the Civil War and the dictatorship), may help to explain why, still today, religiosity is negatively associated with support for TJ measures. The effect of other individual-level variables is modest. Age is a relevant predictor of support, older respondents being less likely to support TJ. This variable appears to have a differential impact across town of residence; the effect of being older is stronger (more negative) in smaller towns, which tallies with the observed resistance to TJ policies in small villages (Aguilar 2008b). Education is only significant in one of our models although, interestingly enough, its coefficient has a negative sign in all models of the three tables. Regarding the impact of family socialization, we find that, 70 years after the Civil War and more than 30 years after the dictatorship, reported victimization -suffered by the respondent or their relatives- is crucial in explaining current attitudes towards TJ. This conclusion suggests that more attention should be paid to personal and family experiences in the formation of political views and attitudes, especially if they are traumatic. In South Africa, Backer (2006) has found significant differences between direct victims of the Apartheid and the rest of the population regarding satisfaction with the TRC. In Rwanda, a survey study of the ICTJ has also found that “personal experiences shaped respondents’ attitudes” (referred in Thoms et al. 2008: 79). In general, the impact of victimization is unrelated to the respondent’s age, which confirms the decisive importance of intergenerational transmission of views about traumatic events.35 The only exception to this is the significant effect of the age   20 parameter on support for trials (Table 2); one explanation could be that reparatory aspects of justice are more likely to be transmitted across generations than retributive ones. This might also be indicative that the revenge impulse tends to fade over time, whereas the need to see the victims properly redressed may be more easily and frequently maintained. Finally, we have found that contextual factors are relevant in explaining attitudes towards TJ policies. In this paper we have focused on regional-level factors, which are intuitively very relevant in the Spanish case, with the Catalan and Basque minorities. 36 However, differences could also occur at other levels of aggregation. For example, Arjona (2009) has emphasized the importance of the municipal level for reparation policies in Colombia. The significance of these contextual differences will depend not only on the existence of different victimizing experiences, but also on a certain degree of collective self-awareness and mechanisms for its reproduction. 5. Conclusions Frequently starting from normative rather than empirically demonstrated assumptions, the TJ literature has traditionally focused on the different political strategies developed by political actors either to promote or to oppose institutional arrangements aimed either at redressing victims or at bringing perpetrators to justice. In doing so, there has been a tendency to disregard public opinion towards TJ policies. This is unfortunate, as the use of surveys gives us “a better sense of how pro- and anti- TJ constituencies emerge” (Thoms, 2008: 47; 78). This paper, which has sought to explain determinants of popular attitudes towards TJ in contemporary Spain, represents a contribution to the specialized literature on the topic. We have analyzed TJ as disaggregated in different types of measures, which can either be complementary or alternative to each other. We have observed that   21 variation in support for TJ interventions issues from a combination of individual and family-level (socialization) variables. In general terms, those who are more likely to support these measures are people who are closer to the left, younger, and non-religious, but also people whose families sided with the Republicans during the Civil War and/or were victimized during the dictatorship. We have also identified some contextual (regional) differences, which make the likelihood of supporting TJ greater in those parts of the country where strong and differentiated ethnic or national identities prevail. While the findings related to ideology, religiosity, age or town size may be dependent on the specificities of Spain (even though some could be relevant in other cases), a lesson that transcends this case is that policies that are perceived as being less aggressive, such as withdrawing symbols of the past (something that does not entail digging into the past to identify human rights violations and perpetrators), are more widely supported by the citizenry. In contrast, measures perceived as more risky (i.e. creation of truth commissions and holding of trials) are less widely supported by citizens. The importance of differentiating between the more moderate and the more radical instruments, and even attempts to create an ordered scale or a “spectrum” of TJ policies, has started to be considered in the literature (Payne et al., 2008; Grodsky, 2009). In other words, TJ measures do not appear to be reducible to a single dimension; and, depending on their nature, different interventions are likely to generate different levels of popular support. The results illustrate the long-term relevance of victimization and socialization on political identities. On the one hand, individuals do not seem to be forgetful of their history, i.e. the mere passage of time does not necessarily contribute to oblivion. In Spain, the lack of appropriate TJ measures may have prevented victims and their relatives from leaving the past behind. On the other hand, the condition of victim, which   22 may be more or less specific (i.e. relating to the family or the political community), seems to travel from one generation to another and to have clear-cut political consequences. Interestingly, Carmil and Breznitz (1990) reached a similar conclusion in their research on the effect of the trauma derived from the Holocaust experience on both the survivors and their descendants. Indeed, even if in this paper we have focused on attitudes towards TJ policies, the effects of victimizing experiences are likely to be broader (e.g. on political identities) (Balcells, 2007; Wood, 2008). To conclude, our work underscores the importance of micro-level data for the study of TJ, which can reveal unpredicted empirical patterns. For example, at the mere descriptive level, our study has clarified the views of Spaniards regarding TJ issues. Our data demonstrate that, contrary to what has been commonly assumed, Spaniards are reasonably supportive of the application of TJ policies.37 In fact, the data indicates that the average Spanish citizen would have endorsed a more ambitious legal application of TJ principles than that provided for in the 2007 “Law of Historical Memory”.   23 References Acock, A. & Bengtson, V. L. (1980). Socialization and Attribution: Actual versus Perceived Similarity among Parents and Youth. Journal of Marriage and the Family, 42, 501-515. Aguilar, P. (2002). Memory and Amnesia: The Role of the Spanish Civil War in the Transition to Democracy. Oxford & NY: Berghahn Books. Aguilar, P. (2008a). Transitional or Post-Transitional Justice? Recent Developments in the Spanish Case. South European Society & Politics 13(4), 417-433. Aguilar, P. (2008b). Políticas de la memoria y memorias de la política. Madrid: Alianza Editorial. Arjona, A. (2009). One national war, multiple local orders: an inquiry into the unit of analysis of war and post-war interventions. In Law in Peace Negotiations, edited by M. Bergsmo and P. Kalmanovitz. Oslo: PRIO. Balcells, L. (2007). The Effects of Wars on Political Identities: Ideological Change and Continuity after the Spanish Civil War (1936–39). Paper presented at the Annual Meeting of the American Political Science Association, Chicago, IL. Barahona de Brito, A., González-Enríquez, C., & Aguilar, P. (Eds.) (2001). The Politics of Memory. Transitional Justice in Democratizing Societies. Oxford: Oxford University Press. Backer, D. (2003). Civil Society and Transitional Justice: Possibilities, Patterns and Prospects. Journal of Human Rights 2, 297-313. Beck, P. A., & Jennings, M.K. (1991). Family Traditions, Political Periods, and the Development of Partisan Orientations. The Journal of Politics, 53(3), 742-763. Bellows, J. & E. Miguel (2008) War and Collective Action in Sierra Leone. Working Paper, University of California, Berkeley.   24 Biro, Miklos et al. (2004). Attitudes toward Justice and Social Reconstruction in Bosnia and Herzegovina and Croatia. In E. Strover, & H. M. Weinstein (Eds.) My Neighbor, My Enemy. Justice and Community in the Aftermath of Mass Atrocity (pp. 183-205). Cambridge, N.Y.: Cambridge University Press. Carmil, D., & Breznitz, S. (1990). Personal Trauma and World View –Are Extremely Stressful Experiences Related to Political Attitudes, Religious Beliefs, and Future Orientation? Journal of Traumatic Stress, 4 (3), 393-405. Dalhouse, M., & Frideres, J.S. (1996). Intergenerational Congruency: The Role of the Family in Political Attitudes of Youth. Journal of Family Issues, 17, 227- 248. David, R. & Choi, S.Y. (2006). Forgiveness and Transitional Justice in the Czech Republic. The Journal of Conflict Resolution, 50(3), 339-367. Davis, M. (2005). Is Spain Recovering its Memory? Breaking the Pacto del Olvido. Human Rights Quarterly, 27 (3), 858–880. De Greiff, Pablo (not dated). Theorizing Transitional Justice. Unpublished paper. Elster, J. (1998). Coming to Terms with the Past. A Framework for the Study of Justice in the Transition to Democracy. Archives Européennes de Sociologie, XXXIX(1), 7-48. Elster, J. (2004). Closing the Books. Transitional Justice in Historical Perspective. NY: Cambridge University Press. Elster, J. (2006). (Ed.) Retribution and Reparation in the Transition to Democracy. NY: Cambridge University Press. Espinoza Cuevas, V., Ortiz Rojas, M.L., & Rojas Baeza, P. (2003). Comisiones de la verdad. ¿Un camino incierto? Chile: Corporación de Promoción y Defensa de los Derechos del Pueblo.   25 Ferreira, E. F. (1999). Mujeres, memoria e identidad política. Historia, Antropología y Fuente Oral 21, 53-66. Gibson, J. L. (2002). Truth, Justice, and Reconciliation: Judging the Fairness of Amnesty in South Africa. American Journal of Political Science, 46(3), 540-556. Gibson, J. L. (2004a). Does Truth Lead to Reconciliation? Testing the Causal Assumptions of the South African Truth and Reconciliation Process. American Journal of Political Science, 48(2), 201-217. Gibson, J. L. (2004b). Overcoming Apartheid: Can Truth Reconcile a Divided Nation? NY: Russell Sage Foundation. Gibson, J. L. (2007). “Truth” and “Reconciliation” as Social Indicators. Social Indicators Research, 81, 257-281. Grodsky, B. (2008). Weighing the Costs of Accountability: The Role of Institutional Incentives in Pursuing Transitional Justice. Journal of Human Rights, 7, 353-375. Grodsky, B. (2009). Re-Ordering Justice: Towards A New Methodological Approach to Studying Transitional Justice. Journal of Peace Research, 46(6), 1-19. ICTJ. (May 2004). Iraqi Voices: Attitudes toward Transitional Justice and Social Reconstruction. ICTJ. (August 2008). Living with Fear: A Population-based Survey on Attitudes about Peace, Justice and Social Reconstruction in Eastern Democratic Republic of Congo. Jennings, M.K. & Niemi, R. G. (1974). The Political Character of Adolescence. Princeton, NJ: Princeton University Press. Jennings, M.K. & Niemi, R.G. (1981). Generations and Politics. Princeton, NJ: Princeton University Press.   26 Jennings, M.K., Stoker, J. & Bowers, J. (2009). Politics across Generations: Family Transmission Reexamined. The Journal of Politics 71(3), 782-799. Juliá, S. (ed.) (2004). Víctimas de la Guerra Civil. Madrid: Temas de Hoy. Kritz, N. J. (Ed.) (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Washington D.C.: United States Institute of Peace Press. Koonings, K., & Kruijt, D. (Ed). (1999). Societies of Fear: the Legacy of Civil War, Violence and Terror in Latin America. London: Zed Books. Longman, T., et al. (2004). Connecting Justice to Human Experience: Attitudes Toward Accountability and Reconciliation in Rwanda, in E. Strover & H. M. Weinstein (Eds.) My Neighbor, My Enemy. Justice and Community in the Aftermath of Mass Atrocity, (pp.206- 225). Cambridge, N.Y.: Cambridge University Press. Maravall, J. M. (1978). Dictatorship and Political Dissent. Workers and Students in Franco’s Spain. London: Tavistock. Martin Beristain, C. (2008). Diálogos sobre la reparación. Experiencias en el sistema interamericano de derechos humanos. Costa Rica: Instituto Interamericano de Derechos Humanos. McAdams, J. A. (Ed.) (1997). Transitional Justice and the Rule of Law in New Democracies. Notre Dame, Ind.: University of Notre Dame Press. Miller, R.B., & Glass, J. 1989. Parent-Child Attitude Similarity across the Life Course. Journal of Marriage and the Family, 51, 991-997. Montero, J. R., Calvo, K., & Martínez, A. (2008). El voto religioso en España y Portugal. Revista Internacional de Sociología, 51, 19-54 Nalepa, M. (2007). Procedural Fairness and Demand for Transitional Justice: Evidence from East Central Europe. Paper presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL.   27 Nalepa, M. (2008). To Punish the Guilty and Protect the Innocent. Comparing Truth Revelation Procedures. Journal of Theoretical Politics, 2(20), 221-245. Nalepa, M. (2010). Skeletons in the Closet: Transitional Justice in Post- Communist Europe. NY: Cambridge University Press (forthcoming). Payne, Leigh et al. (2008). Does Transitional Justice Work? Presented at the International Studies Association Convention, San Francisco. Sheridan, E. (2009). Transitional Justice and the American South. Presented at the Annual Meeting of the Midwest Political Science Association Meeting, Chicago, IL. Skaar, E. (1999). Truth Commissions, Trials or Nothing. Third World Quarterly, 20(6), 1109-1128. Strover, E., & Weinstein, H.M. (Eds.) (2004). My Neighbor, My Enemy. Justice and Community in the Aftermath of Mass Atrocity. Cambridge, N.Y.: Cambridge University Press. Styskal, R. A., & Sullivan, H. J. (1975). Intergenerational Continuity and Congruence on Political Values. Political Research Quarterly, 28, 516-527. Taylor, G., Samii, C., & Mvukiyehe, E. (2006). Wartime and Post-Conflict Experiences in Burundi: An Individual Level Survey. Presented at September 2006 APSA Meeting, Philadelphia. Available at: http://www.columbia.edu/~cds81/burundisurvey Tedin, K. L. (1974). The Influence of Parents on the Political Attitudes of Adolescents. American Political Science Review, 68, 1579-92. Teitel, R. (2000). Transitional Justice. NY: Oxford University Press. Theidon, K. (2006). The Micropolitics of Reconciliation in Postwar Peru. Journal of Conflict Resolution, 50(3), 433-457.   28 Thoms, O., Ron, J., & Paris, R. (2008). The Effects of Transitional Justice Mechanisms, CIPS Working Paper, University of Ottawa. Wittenberg, J. (2006). Crucibles of Political Loyalty: Church Institutions and Electoral Continuity in Hungary. NY: Cambridge University Press. Wood, E. (2008). The Social Processes of Civil War: The Wartime Transformation of Social Networks. Annual Review of Political Science, 11, 539-61.   29 Tables and Figures Table 1. Logit Regressions: Creation of a truth commission for investigating human rights violations under Francoism Commissions M0 M1 M2 M3 M4 M5 Age effect Age -0.023*** -0.008** -0.006 -0.010*** -0.011*** -0.011*** (0.01) (0.00) (0.00) (0.00) (0.00) (0.00) Town size -0.144* -0.022 -0.025 -0.027 -0.027 -0.024 (0.08) (0.03) (0.03) (0.03) (0.03) (0.03) Town size*age 0.003* (0.00) Individual level Interest in politics 0.013 -0.027 -0.053 -0.052 -0.052 (0.06) (0.06) (0.07) (0.07) (0.07) Education -0.110 -0.112 -0.127 -0.126 -0.132 (0.09) (0.09) (0.09) (0.09) (0.09) Religiosity -0.175*** -0.151*** -0.130*** -0.129*** -0.133*** (0.04) (0.05) (0.05) (0.05) (0.05) Ideology -0.340*** -0.287*** -0.288*** -0.288*** -0.286*** (0.03) (0.04) (0.04) (0.04) (0.04) Socialization (1) Family on Francoist side in Civil War -0.382** (0.15) -0.268* (0.16) -0.266* (0.16) -0.264* (0.16) Family on Republican side in CW 0.075 0.005 0.003 -0.001 (0.13) (0.13) (0.13) (0.13) Family talked about politics 0.201*** 0.140*** 0.139** 0.137* (0.07) (0.07) (0.07) (0.07) Father’s ideology -0.026 -0.029 -0.029 -0.029 (0.03) (0.03) (0.03) (0.03) Victim of Francoism 0.839*** 0.700* 0.831*** (0.13) (0.36) (0.13) Victim of Francoists in the CW 0.029 (0.13) 0.030 (0.13) 0.034 (0.13) Age*victimization 0.003 (0.01) Regional differences (2) Catalonia -0.017 (0.14) Basque country 0.451* (0.27) Constant 1.200 2.679 2.160 2.331 2.360*** 2.326*** (0.35) (0.34) (0.37) (0.38) (0.39) (0.38) N 1704 1704 1704 1704 1704 1704 Chi2 20.33*** 208.84*** 229.89*** 275.177*** 275.349*** 278.20*** Akaike’s IC 2346.117 2163.602 2150.561 2109.274 2111.102 2110.250 Legend: * p<.1; ** p<.05; *** p<.01 (1) The reference category comprises those who said their family fought on both sides during the Civil War. (2) The reference category comprises all other Spaniards.   30 Table 2. Ordinal Logit Regressions: The authorities that violated human rights under Francoism should be brought to trial Trials M0 M1 M2 M3 M4 M5 Age effect Age -0.028*** -0.015*** -0.016*** -0.016*** -0.021*** -0.017*** (0.01) (0.00) (0.00) (0.00) (0.00) (0.00) Town size -0.092 0.030 0.029 0.029 0.027 0.030 (0.08) (0.03) (0.03) (0.03) (0.03) (0.03) Town size*age 0.003 (0.00) Individual level Interest in politics -0.007 -0.011 -0.013 -0.007 -0.008 (0.06) (0.06) (0.06) (0.06) (0.06) Education -0.144* -0.125 -0.127 -0.122 -0.137 (0.09) (0.09) (0.09) (0.09) (0.09) Religiosity -0.127*** -0.101** -0.100*** -0.093** -0.090** (0.04) (0.04) (0.04) (0.04) (0.04) Ideology -0.325*** -0.264*** -0.263*** -0.260*** -0.251*** (0.03) (0.04) (0.04) (0.04) (0.04) Socialization (1) Family on Francoist side in Civil War -0.249* -0.243* -0.230 -0.252* (0.14) (0.14) (0.14) (0.14) Family on Republican side in CW 0.363*** 0.357*** 0.343*** 0.297*** (0.13) (0.13) (0.13) (0.13) Family talked about politics 0.025 0.021 0.014 0.011 (0.07) (0.07) (0.07) (0.07) Father’s ideology -0.015 -0.014 -0.014 -0.016 (0.03) (0.03) (0.03) (0.03) Victim of Francoism 0.045 -0.732** 0.073 (0.12) (0.33) (0.12) Victim of Francoists in CW 0.012 0.027 0.002 (0.12) (0.12) (0.12) Age*victimization 0.017** (0.01) Regional Catalonia 0.558*** differences (2) (0.15) Basque country 0.969*** (0.28) Cut point 1 -1.981 -3.540 -3.146 -3.149 -3.343 -3.061 (0.35) (0.33) (0.36) (0.36) (0.37) (0.36) Cut point 2 -1.518 -3.032 -2.632 -2.636 -2.828 -2.540 (0.35) (0.33) (0.36) (0.36) (0.37) (0.36) N 1737 1737 1737 1737 1737 1737 Chi2 44.42*** 215.54*** 233.94*** 234.12*** 240.65*** 259.918*** Akaike’s IC 3129.685 2964.560 2954.169 2957.987 2953.453 2936.186 Legend: * p<.1; ** p<.05; *** p<.01 (1) The reference category comprises those who said their family fought on both sides during the Civil War. (2) The reference category comprises all other Spaniards.   31 Table 3. Ordinal Logit Regressions: Symbols paying tribute to Francoism should be withdrawn from public spaces Symbols M0 M1 M2 M3 M4 M5 Age effect Age -0.032*** 0.001 0.001 -0.001 -0.003 -0.003 (0.01) (0.00) (0.00) (0.00) (0.00) (0.00) Town size -0.284*** -0.023 -0.023 -0.025 -0.026 -0.024 (0.08) (0.03) (0.03) (0.03) (0.03) (0.03) Town size*age 0.006*** (0.00) Individual level Interest in politics 0.089 0.103 0.089 0.091 0.093 (0.06) (0.07) (0.07) (0.07) (0.07) Education -0.031 -0.014 -0.032 -0.031 -0.044 (0.09) (0.09) (0.09) (0.09) (0.09) Religiosity -0.250*** -0.220*** -0.209*** -0.208*** -0.203*** (0.04) (0.04) (0.04) (0.04) (0.04) Ideology -0.436*** -0.387*** -0.383*** -0.382*** -0.374*** (0.03) (0.04) (0.04) (0.04) (0.04) Socialization (1) Family in Francoist side in the Civil War -0.449*** -0.384*** -0.377** -0.386*** (0.14) (0.14) (0.14) (0.15) Family in Republican side in the Civil War 0.271** 0.183 0.178 0.121 (0.14) (0.14) (0.14) (0.14) Family talked about politics -0.007 -0.042 -0.044 -0.050 (0.07) (0.07) (0.07) (0.07) Father’s ideology 0.016 0.019 0.020 0.020 (0.03) (0.03) (0.03) (0.03) Victim of Francoism 0.366*** 0.107 0.384*** (0.13) (0.36) (0.14) Victim of Francoists in the Civil War 0.248* 0.253* 0.234* (0.13) (0.13) (0.13) Age*victimization 0.006 (0.01) Regional differences (2) (ref. is other) Catalonia 0.456*** (0.16) Basque country 1.464*** (0.36) Cut point 1 -2.666*** -3.803*** -3.365*** -3.410*** -3.463*** -3.347*** (0.35) (0.35) (0.38) (0.38) (0.38) (0.38) Cut point 2 -2.171*** -3.217*** -2.773*** -2.815*** -2.867*** -2.743*** (0.35) (0.34) (0.37) (0.37) (0.38) (0.38) N 1807 1807 1807 1807 1807 1807 Chi2 24.772*** 333.980*** 351.872*** 366.238*** 366.817*** 395.031*** Akaike’s IC 3082.796 2779.588 2769.696 2759.330 2760.750 2734.537 Legend: * p<.1; ** p<.05; *** p<.01 (1) The reference category comprises those who said their family fought on both sides during the Civil War. (2) The reference category comprises all other Spaniards.   32    Table 4. Two-sample Kolmogorov-Smirnov test for equality of distribution functions Smaller group D P.value Non-victims 0 1.00 Victims -0.12 0.00 Combined K-S 0.12 0.00   33 Figure 1. Determinants of TJ policies Attitudes towards TJ measures Individual factors Socialization Parental ideology Family victimization Contextual factors   34 Figure 2. Support for the creation of a truth commission to investigate human rights violations under Francoism   35 Figure 3- Support for trials against authorities that violated human rights under Francoism   36 Figure 4. Support for the withdrawal of monuments paying tribute to Francoism   37 Figure 5. Ideology self-placement for victims and non-victims 0 5 10 15 20 25 30 Extreme left 2 3 4 5 6 7 8 9 Extreme right No victimization  reported Victimization  reported D en si ty ( % o f re sp o n d en ts )   38 Appendix Descriptive statistics Variable name N Mean Std. Dev. Min Max Trials 2,525 2.36 0.87 1 3 Symbols 2,667 2.49 0.81 1 3 Monuments 2,617 2.50 0.80 1 3 Commissions 2,426 0.52 0.49 0 1 Age 2,936 47.17 18.15 18 99 Town size 2,936 3.87 1.65 1 7 Interest in politics 2,919 2.08 0.88 1 4 Education 2,929 1.91 0.70 1 3 Religiosity 2,868 2.50 1.35 1 6 Ideology 2,435 4.39 1.74 1 10 Victim of Francoism 2,936 0.24 0.42 0 1 Victim of Francoists in CW 2,936 0.31 0.46 0 1 Family on Francoist side in CW 2,936 0.15 0.36 0 1 Family on Republican side in CW 2,936 0.32 0.46 0 1 Family talked about politics 2,854 1.91 0.82 1 4 Father’s ideology 2,103 4.82 2.21 1 10 Catalonia 2,936 0.23 0.42 0 1 Basque country 2,936 0.23 0.42 0 1     39                                                              Endnotes 1 The first category includes: trials; annulment of auto-amnesties approved by officials of the previous regime; legislation expropriating illegitimately acquired assets of former authoritarian parties; lustration or purging of individuals actively involved with the authoritarian regime. Reparation ranges from various forms of material compensatory policies (e.g. restitution of confiscated property rights, or provision of pensions to the victims or their families) to symbolic measures (e.g. memorials to the victims, or official apologies). Truth revelation procedures normally entail the creation of commissions and/or the declassification of secret police archives. 2 See, among others, Kritz (1995); McAdams (1997); Teitel (2000); Barahona de Brito et al. (2001); Elster (1998; 2004; 2006); Nalepa (2008; 2010); De Greiff (not dated). 3 While the latter caveat applies to any policy, it is particularly relevant in the case of TJ for a number of reasons: firstly, civil society is likely to be weakened in the aftermath of an authoritarian experience and/or a violent conflict, and organizational resources to lobby for TJ are likely to be scarce. Secondly, even if there is an underlying desire for these type of measures in society, people are not likely to openly request them for fear of political destabilization, residual power of the repressive actors, and the like. Finally, pressures exerted by a number of social actors aimed at advancing TJ may simply be representative of a few groups with highly intense preferences (i.e. victims and their relatives), and not of the society in general. 4 A notable exception is Gibson’s (2002; 2004a; 2004b) research in South Africa. Through representative surveys at national level, his research has focused on the reconciliatory effects of the Truth and Reconciliation Commission (TRC), as well as on the social perception of justice derived from this institution. Nalepa (2008; 2010) has   40                                                                                                                                                                                also implemented representative surveys in Hungary, Poland and Czech Republic on matters related to TJ policies. Other studies based on survey research are listed in Thoms et. al. (2008: 78-85). 5 The estimated death toll during the Civil War is 800,000, of which around 122,000 are estimated to be civilian victims of intentional lethal violence –of these, 84,095 were victims of Francoist violence, and 37,843 were victims of Leftist violence (Juliá 2004). 6 Aguilar (2008a) argues that a crucial factor explaining the resurgence of this debate is the arrival in the public sphere of the “grandchildren of the war”, who were free from the fears and guilt of their parents. Davis (2005: 868) has pointed to the importance of Pinochet’s arrest in London -after an initiative by the Spanish judge Baltasar Garzón- in understanding these changes. 7 Official State Gazette nº 310, of 27th December 2007, p.53410. It will be referred to in this article as the “Law of Historical Memory”, the name it has been given in the mass media. 8 See, for example, Nalepa (2007) for Poland, the Czech Republic and Hungary; David and Choi (2006) for the Czech Republic; Theidon (2006) for Peru; Gibson (2002, 2004a, 2004b, 2007) for South Africa; Biro et al. (2004) for Bosnia and Herzegovina and Croatia. 9 The effect of the perceived threat from members linked to the authoritarian regime is studied by Nalepa (2007), who finds it to be a significant predictor of attitudes towards lustration in Poland, Czech Republic and Hungary. This factor was also found to be significant in South Africa (Gibson, 2004b). 10 On trauma and fear arising from repression in authoritarian regimes, see Koonings and Kruijt (1999).   41                                                                                                                                                                                11 In Spain, leftist ideology would be expected to be associated with support for TJ policies. The opposite would apply in other contexts (i.e. post-Communist settings). 12 Nonetheless, we will empirically explore a different set of interactions. 13 The Basque Country and Catalonia are over-represented, with 699 and 683 respondents, respectively. In our analyses, we take into account this over-representation so that the results are perfectly representative of the whole country. 14 The response options are 1 = Yes; 2 = No; 3 = Doesn’t Know; 4 = Doesn’t Answer; we built a dummy variable with values 1 = Yes; 0 = No. 15 Responses are measured on a scale from 1 to 3 where 1 = “Completely disagree”; 3 = “Completely agree”; 2 = “Neither agree nor disagree.” 16 The same scale as in 2 applies. 17 Town size is entered as an ordinal variable (on a scale 1-7) following the usual coding in CIS surveys. The categories are: 1 = 2,000 or fewer inhabitants; 2 = between 2,001 and 10,000; 3 = between 10,001 and 50,000; 4 = between 50,001 and 100,000; 5 = between 100,001 and 400,000; 6 = between 400,001 and 1,000,000; 7 = more than 1,000,000. 18 “Could you tell me if you are interested in politics in general?” Possible responses are 4 = Very much; 3 = Quite a lot; 2 = A little; 1 = Not at all. 19 Indeed, education and interest in politics are two mandatory controls in our estimation, since individuals scoring higher in one or both are much less likely to give a “does not know” type of answer. Adding these controls helps to avoid sample bias. 20 The variable has the values 1 for primary education or less; 2 for secondary education; 3 for university degree.   42                                                                                                                                                                                21 This is a scalar variable that goes from 1 to 6, where 1 is non-religious (i.e. the respondent identifies herself as atheist or non-religious) and 6 highly religious (i.e. the respondent says that she goes to mass several days a week). 22 While the impact of religion on Spanish politics is not as strong as it used to be, it remains a significant factor explaining voting and electoral competition (Montero et al., 2008). 23 This variable measures the self-reported position on the left-right scale ranging from 1 (extreme left) to 10 (extreme right). 24 We measure this with the question: “As far as you can remember, which of the two sides that fought the Civil War did your family most identify with, the Republicans or the Nationalists?” [“Nationalists” is the name that was given to Franco’s supporters during the Civil War]. Possible responses are: 1 = Nationalist; 2 = Republicans; 3 = Both; 4 = Neither. This question has been used in previous surveys conducted by the CIS. In our survey, the response rate to this question (77%) was higher than in any previous one. We include this variable in the regressions as two different dummies: Family Nationalist Side, and Family Republican Side. 25 “When you were a child or adolescent, how much did they talk about politics at home?”: 4 = Very much; 3 = Quite a lot; 2 = A little; 1 = Not at all. 26 To be consistent with the traditional male preeminence in Spanish culture we use father’s position on the ideological scale. The correlation between the father’s ideology and the mother’s is very high (0.77), so we cannot include both of them in the same regressions. Using the mother’s ideology implies no change in our results (these are available upon request). Since our indicator was reported by the respondent, some bias may exist (i.e. the respondent bringing her father closer to her ideological   43                                                                                                                                                                                positions). Yet, the correlation between the respondent’s ideology and her father’s is not dramatically high (0.55). 27 We do not take into account victimization by the Republican side during the Civil War, as we would not expect this to have straightforward effects on attitudes towards TJ. As we explained, victims of the Republican side received reparations in the past. Current TJ measures are connected to reparation for Francoist violations. 28 Victimization includes any of the following: death in combat; death in bombardment; homicide; death penalty; disappearance; imprisonment; flight from Spain; was forced into hiding; was expelled from work. We label this variable “Victim of Nationalist Side during CW”. 29 This includes any of the following: arrest; imprisonment; was expelled from work; was fined; was forced to leave the country; was executed. We label this variable “Victim of Francoism”. 30 Due to the limited number of cases in the group of people with direct victimizing experiences, we include family and individual victimization experiences together. We have also run analyses without those with personal victimizing experiences, and the results are consistent. 31 According to Thoms et al. (2008: 81),”different regions (…) are likely to have quite different views on TJ”, and they recommend “over-sampling”, as we have done in our study. 32 The rate of “doesn’t know” responses is 16.12% for truth commissions, 14.7% for trials, and 9.91% for symbols. We must bear in mind that the question about the creation of a truth commission had a different set of response categories than the others; in this case, the intermediate category of “indifferent” is absent, which may have pushed the respondents toward either one of the two extremes: agree-disagree.   44                                                                                                                                                                                33 Note that missing data implies a reduction in the size of the sample used for the estimations of models presented in tables 1, 2, and 3. Re-estimating them using selection models that correct for potential selection bias in our dependent variables implies no changes to our conclusions. 34 Though we do not have enough space to develop on the differences between Basques and Catalans regarding their support of TJ policies, one explanation could be that Basque nationalism is more extreme than Catalan. While in the Basque Country there is a significant tendency to consider Spanish and Basque identities as incompatible, in Catalonia dual identities (people feeling simultaneously Spanish and Catalan) are more frequent (this can be seen in our survey: available upon request). Given that Francoism was characterized by the aggressive imposition of Spanish identity and the repression of minority identities, a more extreme ethnic identity may be leaning towards a greater support for TJ measures. 35 Similarly, in the South African case it has been confirmed that “young blacks are not more likely to be reconciled than older blacks” (Gibson, 2004b: 215). 36 This result ties in with Gibson’s (2004a) finding regarding the importance of racial identities in explaining the acceptance of TJ measures in South Africa. 37 In most of the few existing studies based on survey data, support for TJ measures shows to be more common than the opposite (Thoms et al, 2008: 78).  
work_iwtxgge6ubc6vezfcxx7virz5m	----	SE_01.indd do i: 10 .7 21 3/ ur be .0 6. 00 2. SE 01 I SS N 21 75 -3 36 9 Lic en cia do so b um a Lic en ça C re at iv e Co m m on s urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City1 Justiça social e a cidade “verde” Liette Gilbert Ph.D in Urban Planning (UCLA), professor at Faculty of Environmental Studies, York University, Toronto, ON - Canada, e-mail: gilbertl@yorku.ca Abstract A transition to a new, greener urbanism is increasingly imperative in the face of environmental crises. However, such a transition is not possible without considering social justice. This essay examines some ten- sions between social justice and urban sustainability and some of the reasons why a social justice approach to urban sustainability is often marginalized by a neoliberal sustainability ontology. This essay irst engages with various normative concepts of social justice and its long existing but unful illed claim in the city. It then considers some gains toward greener urbanism but contends that urban sustainability responses have ge- nerally been more preoccupied with ecological modernization and the reproduction of best practices rather than with socio-spatial justice. In looking at some workings of green neoliberalism, the essay points to how the ecological is easily recuperated for neoliberal ends. The last section addresses some reasons why the social is de-privileged in the dominant sustainability discourses and practices, and how social justice serves, through citizenship practices, as a claim to urban change where participation is not a bureaucratized process but an everyday practice. Overall, the essay cautions against certain sustainability discourses and green neoliberalism without addressing its ingrained inequalities. Keywords: Social justice. Just city. Good city. Greening. Green neoliberalism. Resumo A transição em direção a um urbanismo “mais verde” se faz cada vez mais necessária devido a crise ambiental. Contudo, essa transição somente é possível se acompanhada de justiça social. Assim, tem-se por objetivo investigar algumas tensões entre a justiça social e a sustentabilidade urbana, bem como algumas das razões pelas quais uma abordagem de justiça social voltada à sustentabilidade urbana é frequentemente marginaliza- da por uma ontologia sustentável neoliberal. Este artigo se inicia com a apresentação de diversos conceitos 1 My thanks go to Dr. Alexandre Babak Hedjazi for inviting me to participate in the ICE-NET Urban Futures and Transitions conference. I am grateful for the excellent comments of many participants and the four URBE reviewers. urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City 159 Introduction In his very in luential book, Social Justice and the City, published forty years ago and still of great relevance in the face of widening urban inequalities produced by neoliberal capitalism, David Harvey (1973, p. 314) contends that a revolutionary practice can only accomplish the transition from “[…] an urbanism based in exploitation to an urbanism appropriate for the human [and other] species.” In many urban contexts, such transition is increasingly presented as an imperative in the face of ecological destruction and obsolete urban infrastructure. Without rejecting the need for an “ecological” revolution, a “green” urban transition seems impossible without a redistributive purpose, social justice, and social change. This essay contends that social justice, as a claim and means for addressing equity de icits, has often been neglected in dominant sustainability discourses that drive the development of “greener” cities. Such an argument is not necessarily new but remains critical because sustainability, often articulated in the economic language of the triple bottom line, mobilizes the environment at the service of pro it-driven agendas, which further exacerbate social divides (AGYEMAN; BULLARD; EVANS, 2012; DAVIDSON et al., 2012). To speak of social justice is not simply to demand a redistribution of environmental and economic opportunities but to recognize that some practices deemed ‘sustainable’ hide and aggravate already existing equity de icits. Social justice, in theory and in practice, seeks to alleviate and close these equity de icits without rejecting the promises of a more ecologically friendly or economically vibrant city. To be skeptical of dominant sustainability discourses does not mean denying the possibilities of urban transitions and social change. A focus on social justice reveals the misleading balance depicted in the rhetoric of the three pillars of sustainability: economy, environment and society. The metaphor of the three pillars, often graphically depicted as three identical and slightly overlapping circles, three similar mutually chasing green arrows or three perfectly matching architectural columns, obscures the unequal relationships between the economic, environmental and social dimensions of sustainability (or other synonymous triads, such as pro it, planet, people). Although sustainability and sustainable development has multiple meanings and inevitably, multiple performances, the economic pillar is often recognized as having a greater bearing over the social and environmental components normativos de justiça social e sua longa reivindicação (existente, mas não suprida) na cidade. Posteriormente são discutidos alguns bene ícios decorrentes de um urbanismo “mais verde”, alegando-se, contudo, que as ações de sustentabilidade urbana têm, de forma geral, concentrado-se mais em aspectos relacionados à modernização ecológica e reprodução de boas práticas do que em questões voltadas à justiça socioespacial. Ao se analisarem trabalhos sobre “neoliberalismo verde”, o artigo evidencia como o tema da ecologia é restabelecido para objetivos neoliberais. A última seção debate o motivo pelo qual o aspecto social é relegado a segundo plano no discurso e práxis dominante de sustentabilidade e a forma pela qual a justiça social serve, por meio das práticas de cidadania, como reivindicação para transformações urbanas em locais onde a participação popular encontra-se arraigada na prática diária. Em linhas gerais, o artigo alerta contra determinados discursos de sustentabilidade e “neoliberalismo verde” sem abordar suas desigualdades arraigadas. Palavras-chave: Justiça social. Cidade justa. Boa cidade. Greening. Neoliberalismo verde. Sustainability is both an honorable goal for carefully de ined purposes and a camou laged trap for the well-intentioned unwary (MARCUSE, 1998, p. 104). urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 GILBERT, L.160 (MARCUSE, 1998; FOLADORI, 1999; AGYEMAN; BULLARD; EVANS, 2012; DAVIDSON et al., 2012; LUKE, 2013). Despite their interdependence, social and environmental concerns appear more easily trivialized and marginalized at the pro it of economic growth. Increasing poverty and the growing gulf between the “haves” and the “have nots”, irreversible environmental changes, continuous resource depletion and the constant degradation of natural environments all demonstrate that sustainability as an integrated approach remains an ideological goal and a constant challenge. By focusing on social justice, my objective is not only to point to de iciencies in the ‘green’ city model but also to insist on the possibility and necessity to bridge such gaps and hold the idea of sustainability to its professed goals. However, to hold sustainability to its ideals, social justice in the city must address past and continuing uneven development processes in urban spaces. This is not a simple task given the accumulated social and environmental injustices in the city, and particularly in lower-income neighborhoods, which are rarely the objective of innovative green agendas. Social justice and urban sustainability are contested terms and may not always share compatible objectives, but their multiple and elastic meanings may nevertheless provide some room for overlap and signi icant change (DOBSON, 2012). This essay examines some tensions between social justice and urban sustainability and some of the reasons why a social justice approach to urban sustainability is often marginalized by a neoliberal sustainability ontology. This essay irst engages with various normative concepts of social justice and its long existing but unful illed claim in the city. The paper then considers some gains in greener urbanism but contends that urban sustainability responses have generally been more preoccupied with ecological modernization and the reproduction of best practices rather than with socio-spatial justice. In looking at some workings of green neoliberalism, the essay points to how the ecological is easily recuperated for neoliberal ends. The last section addresses some reasons why the social is de-privileged in the dominant sustainability discourses and practices, and how social justice serves, through citizenship practices, as a claim to urban change where participation is not a bureaucratized process but an everyday practice. Social justice in the city Harvey (1973, p. 97) de ines social justice as “[…] a particular application of just principles to con licts arising out of the necessity for social cooperation in seeking individual advancement.” Such a de inition, with all of its normative and ideological underpinnings, makes obvious that cities are spaces of marginalization and discrimination that necessitate some redress in both “the division of bene its and the allocation of burdens” associated with urban production and distribution if we are to live up to the expectations of a just city (HARVEY, 1973, p. 97) For Harvey (1973, p. 101), social justice is irst contingent on the “just distribution” of opportunities along class lines, and he considers “need, contribution to common good, and merit” as three basic criteria for a “territorial distributive justice.” Although need is a highly relative concept, it is here understood as basic activities (e.g., food, housing, health care, education, etc.), and Harvey (1973, p. 107) astutely points to the “difference between needs and actual allocations” as a practical means to evaluate injustices. Additionally, this difference enables us to see how the production of a “common good” (or “common bad” for that matter) bene its or marginalizes particular groups and individuals in the city. For Harvey (1973, p. 107), merit is not associated with individual worth but rather with security, access and the re- distribution of resources necessary to “compensate for the degree of social and natural environmental dif iculty” extended to particular groups, individuals, and neighborhoods. Harvey (1973) describes social justice as a set of principles necessary for resolving con licting claims arising from the social and institutional arrangements associated with production and distribution activities. Harvey’s particular contribution rests on the emphasis of both the distribution of opportunities and the rarely acknowledged social production of surpluses or scarcity in the city. Observing how surplus is distributed in “socially undesirable ways” for populations that additionally often bear the brunt of scarcity, Harvey (1973, p. 115) summarizes the urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City 161 challenge of aspiring to social justice in the city when he writes: [i]n contemporary “advanced” societies the problem is to devise alternatives to the market mechanism which allow the transference of productive power and the distribution of surplus to sectors and territories where the social necessities are so patently obvious. Drawing on Harvey (1973), many urban scholars have attempted normative de initions of ‘just’ or ‘good’ city. Susan Fainstein (2010, 2005) contends that in the ‘just city’, justice should be the moral basis for urban planning. Urban justice, for Fainstein (2010, 2005), is based on the principles of diversity, democracy, and equity, and such principles ought to be considered and mindfully furthered in planning practices and policies. While emphasizing these principles, Fainstein recognizes the con licting and even contradictory tensions between them but nevertheless insists that material equality, equal opportunity and recognition of difference are crucial in determining what is distributed and who bene its from such distribution. In Fainstein’s ‘just city’, justice intervention seeks equitable or redistributive outcomes for people through a critique of the dominant neoliberal approach to planning. Fainstein’s urban theory of justice is therefore a call to redirect practitioners from neoliberal economic development to social equity. In her view, justice should be “the irst evaluative criterion used in policy making” (FAINSTEIN, 2010, p. 6). Fainstein (2010) speci ically calls for considering social equity in the production of the city (by illustrating equity de icits in empirical cases), but her focus is geared particularly toward the politics of urban growth and planning rather than toward Harvey (1973) larger conceptual formulations and capitalist economic processes (i.e., the systematic causes of equity de icits). The ‘good city’ is a sibling concept of the ‘just city.’ With more than ifty years of thinking about cities in the Global South and North, John Friedmann (2000, 2002) identi ies human lourishing and multiplicity as the foundations of what he sees as the ‘good city.’ The materiality of the ‘good city’ is found concretely in affordable housing and health care, adequate work and social provisions, and the good governance of these outcomes. Friedmann (2002), similar to Fainstein (2010), calls for planners to engage in the material and structural transformation of cities to address ongoing inequalities. As in the ‘just city’, equity is the central foundation of the ‘good city’. Thus, for Friedmann (2000, p. 466), “[e]very human being has the right, by nature, to the full development of their innate intellectual, physical and spiritual potentials in the context of wider communities.” Such a right, Friedmann (2000) contends, is the most basic human right. However, such a right implies an intrinsic mutuality because, for Friedmann (2000, p. 465), “[…] no group can be completely free until freedom [from oppression] has been achieved for every group.” Here rests the challenge and the promise of Friedmann’s (1987) radical transformative practice for freedom and justice to be rendered and enacted more equitably. Building on Friedmann, Ash Amin (2006, p. 1013) suggests that the ‘good city’ and the politics of ‘living together’ can be thought of as a challenge to fashion a “[…] progressive politics of well-being and emancipation out of multiplicity and difference and from the particularities of the urban experience.” In doing so, Amin (2006, p. 1013) suggests “four registers of urban solidarity” (repair, relatedness, rights and re-enchantment) that engage with multiplicity through everyday urban life. For Amin (2006, p. 1016), solidarity means ensuring universal and affordable access to basics services (shelter, sanitation, sustenance, etc.) as well as amending the “[…] damage wrought by the fear, hate and anxiety that feeds on division and envy in urban life […]”. To do so, Amin (2006) argues for the right of all citizens to participate in urban life and to bene it from it in the form of “participative parity” (FRASER, 2005, p. 87) rather than routinized participation serving processes, ideas, and the people in power. What these normative attempts to de ine the ‘just city’ or the ‘good city’ have in common are the practice of justice, access, right, and redress of inequalities. While normative de initions are certainly problematic when they pretend a universality, the discussion around the ‘just city’ and the ‘good city’ seeks to address rather than occult urban injustices. By articulating principles of social justice, equality and mutuality, the concepts of ‘just city’ and ‘good city’ clearly state urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 GILBERT, L.162 the needs to review processes of urban planning production and distribution in order to alleviate its discriminatory effects and live up the ideals of equity and social justice. In 2000, Polèse and Stren used the speci ic language of social sustainability to examine how urban political and physical infrastructures were to address the growing diversity and the management of change. Polèse and Stren (2000, p. 15-16) de ine social sustainability as development (or growth) that is compatible with the harmonious evolution of civil society, fostering and environment conducive to the compatible cohabitation of culturally and socially diverse groups while at the same time encouraging social integration, with improvements in the quality of life for all segments of the population. Similarly to others social justice scholars, the authors insisted that the achievement of social sustainability requires local institutions and governments to […] reduce both the level of exclusion of marginal and/or disadvantaged groups, and the degree of social and spatial fragmentation that both encourages and re lects this exclusionary pattern […] (POLÈSE; STREN, 2000, p. 16). Although a broad concept, social sustainability ought to be more than an element of the sus- tainability trialectics, adding social actors into the mix of more popularized discourses of environmen- tal and economic sustainability. In considering social sustainability as a challenge to exclusion and marginalization rather than a complementary instrument or component of a prosperous economy balanced with ecological integrity, social justice demands a rearticulation of the material processes of the city. Peter Marcuse (1998) insightfully notes that the current discourse of sustainability does not necessarily insure social justice - i.e., building a new social order based on equality and justice for all in every aspect of social life - and has rather been more frequently used to sustain an unjust status quo. Yet the prevalent tropes of social sustainability, such as empowerment, social cohesion, social capital, well-being and quality of life, resilience and livability have perhaps at times shifted our attention away from addressing persistent inequalities and democratic de icits. If social sustainability is to become more than rhetoric, social justice is required to redress the continuing marginalization that has long existed in racialized, low-income and immigrant communities and neighborhoods. When speaking of diversity and difference in the city, it is tempting to conclude that what has been sustained over time, despite the best planning intentions of the past decades, is exclusion and marginalization. Social sustainability cannot be simplistically understood as the establishment of social arrangements that enable democratic politics (DAVIDSON, 2009). Such arrangements require institutional transformations that irst question how such arrangements are produced and reproduce social exclusion and marginalization as well as environmental deterioration. Urban sustainability Since 1987 and the Brundtland Commission Report’s (WCED, 1987, p. 41) oft-quoted de inition of sustainable development as “[…] development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” sustainability has become a dominant discourse, treating development and environment as one single (arguably oxymoronic) issue. The sustainability of cities and the need to develop and foster an integrated holistic vision for urban sustainability has been generally promoted through a double discourse of urgency. On the one hand, the world has increasingly become urbanized with more than half of the world’s population already living in cities. On the other hand, cities have often been seen as ecologically destructive, ‘unnatural’, and the antithesis of nature. Despite the growing scholarship examining cities and nature as interacting and inextricably connected processes - best captured by David Harvey (1996) claim that there is nothing ‘unnatural’ about New York City - the discourse of urban sustainability has been particularly focused on mitigating the detrimental and harmful effects of urban development (KEIL, 2003; BRAUN, 2005; GANDY, 2002). Beatley (1999) refers to green urbanism urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City 163 as the practice of creating communities mutually bene icial to humans and the environment (i.e., ecological processes). Urban sustainability and green urbanism are also a call for urban planners and designers to do things differently. Prior to sustainability being naturalized into urban planning and policy in the 1990s, early ecological activists and innovators (e.g., Buckminster Fuller, John Todd, Ian McHarg, etc.) argued the urgent need to promote sustainability and strongly believed that the environmental crisis was in fact a design crisis (VAN DER RYN; COWAN, 1996). For example, experimental architecture based on renewable sources of energy was a way to prove our technological ability to support human needs in the face of the inite resources of the planet. Problems of unsustainability were generally perceived as a matter of better integrating cities with their physical environments (HOUGH, 1995; VAN DER RYN; COWAN, 1996; BEATLEY, 1999). Thus, ecological designers embraced sustainability for its ecological tenets and emphasized the obligation to rede ine the relations between ecological systems and between people and the environment. Some conventional urban planning practices were slowly replaced by a greener, ecological, more sustainable rationality where environmental problems were often relegated to technological considerations. Such ecological modernization or sustainability ix approaches were perceived as the most ef icient and effective use and management of resources but showed limited preoccupation with social and economic issues. Often emphasizing the protection or restoration of ecological processes, ecological design through a sustainable or greening city agenda focused on solving problems “by changing the city, not by changing society” (BRAUN, 2005, p. 638). In this sense, the greening of cities has often been considered “largely atheoretical and apolitical” (BRAUN, 2005, p. 638). The ongoing dif iculty of reconciling the social, economic and ecological imperatives of urban sustainability does not mean that there have not been some successful efforts or achievements in terms of greater energy ef iciency, ecological processes restoration, and waste recycling. Urban planning and design have long relied on historical precedence as a way of studying, comparing and conceiving plans. In recent years, many so-called ‘best practices’ of urban sustainability have been traveling as aspiring norms and inspiring benchmarks toward greater urban sustainability. In fact, best practices are often seen as effective means for promoting urban sustainability (BULKELEY, 2006). Numerous non-governmental organizations and transnational networks dedicated to the promotion of urban sustainability (e.g., UN- Habitat Sustainable Cities Program or ICLEI) and numerous scholarly books (BEATLEY, 1999; ZETTER; WATSON, 2006; COLANTONIO; DIXON, 2011; HALL, 2013) spotlight examples of green urban revitalization ranging from climate initiatives to greener transport, from energy ef icient buildings to waste production and management programs, and from greener infrastructure and services to green management governance practices (e.g., sustainable procurement, eco-budgeting, etc.). Many cities have used their green plans and developments as competitive advantages, positioning themselves as best practices to emulate. Among the most celebrated examples of urban sustainability, cities such as Stockholm, Hamburg, Copenhagen, San Francisco, Vancouver as well as Curitiba, Medellín and Songa are recognized as leaders in committing to green initiatives and achieving environmental standards. Ranking the greenest cities has become a growing popular global endeavor led by a multitude of actors, such as The Economist in collaboration with the technological company Siemens (2012), Reuters Environmental forum (2010), Organic Gardening (2014) and Globe Award (2014), among many others. Urban sustainability has brought the beginning of a much needed ecological consciousness to urban planning (related to energy consumption, integrity of habitats, green spaces, reuse and recycling materials, housing density, and levels of pollution of air and water, among other issues) but best practices also represent a political rationality through which cities, organizations, and networks promote and legitimate their particular vision of urban sustainability. Their hope is that their initiatives, programs, and agendas will inspire policy change elsewhere, notwithstanding local conditions or capacities. Little concern is given to the “underlying premises and beliefs, with processes of learning con ined to those of lesson drawing” and the “consequent implications for the governing of urban sustainability” (BULKELEY, 2006, p. 1033, urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 GILBERT, L.164 1035). There are certainly some bene its to shared learning about urban sustainability’s best practices to encourage a “sustainable” vision of cities. However, there are obvious dif iculties linked to numerical measurement and ranking something as subjective, dynamic and evolving as cities. The capacity of current assessment tools, indicators and indexes to measure the complexities of sustainability has also been increasingly contested. Davidson et al. (2012) point to the fact that the conventional liberal model of sustainability (and its three pillars) tends to prioritize the economy as the most important sphere of sustainability and to oversimplify the idea of harmony between economic, environmental and social dimensions. As Davidson et al. (2012, p. 58) remind us, there are also problems related to […] the lack of de initional clarity in some assessment tools about what is being measured, weak epistemological links between the de inition of sustainability and indicators, limited emphasis of social sustainability and the entrenchment of an economic paradigm in these assessment tools. Moreover, as Bulkeley (2006, p. 1029) rightly states: In the promotion of urban sustainability in national and international arenas, numerous initiatives and programs have been put in place to facilitate the creation and the dissemination of ‘best practice’ through which to promote policy transfer and learning. However, despite the vast array of available best practices, little is known about the ways in which best practice is constructed, used, and contested, or of its implications for urban sustainability. T h e d i s c o u r s e o f s u s t a i n a b i l i t y h a s b e e n naturalized in cities, often at the detriment of local knowledge, particularly governance cultures, place-speci ic intricacies, and historical speci icities. In the context of cities, ‘sustainable’ is often used interchangeably with a series of catchy, inde inite and equivocal terms, such as green, resilient, livable, healthy, happy, biodiverse, biophillic, and so forth. The predominant commitments of urban sustainability and green urbanism for renewable energy, zero waste, spatial mobility, ecosystem integrity, and food security (all good t h i n g s ) ra re ly n a m e t h e p re - ex i s t i n g s o c i a l inequalities and injustices that characterize cities. When they do address social issues, such as the ICLEI’s (INTERNATIONAL COUNCIL FOR LOCAL ENVIRONMENTAL INITIATIVES, 2013) de inition of green urban economy as “productive and socially inclusive”, this inclusivity is increasingly expressed in the prospect of green jobs. Work is certainly a crucial component of social inclusivity but it may not be suf icient to fully address social inequalities because, as Davidson et al. (2012, p. 59) note, [t]he classic con lict between jobs and the environmental more often than not results in economic development taking precedence with a degree of environmental compromise being applied. If, as David Harvey (1973, p. 156) reminds us, urbanism is “[…] a set of social relationships which re lects the relationships established throughout society as a whole […],” then green urbanism should not only feature a greener approach but should also run counter to vested interests that produce and regulate unjust and inequitable urbanism. Urbanism as a social form is not limited to the built environment but also includes its actual mode of production. Too often, greening is limited to the form or outcome rather than a challenge to the market forces tapping into environmental sustainability rhetoric. Thus, key questions remain: what is sustained, and who bene its and loses from sustainability discourse and programs? Green neoliberalism Who does not want to live in a sustainable world? Who does not want a greener economy that promotes or invigorates economic growth while also preventing climate change, the dwindling of natural resources, food insecurity, the loss of biodiversity and ecosystems? In the last decade, green neoliberalism (i.e., the convergence of market forces and environmentally friendly logic) has permeated many aspects of our lives from wide-ranging eco-friendly products to corporate eco-manifestos to governmental agendas bolstering urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City 165 green jobs. Although there have been sincere green efforts (e.g., towards ecological protection), much of the sustainability rhetoric embodied in green neoliberalism and its variations of eco-capitalism, green consumerism, bio-economy and corporate eco-credentials often amount to more trumpeting than action. Greenwashing has been a perverse way to stimulate the market for more consumer goods and services. Despite their best intentions, greening discourse (and its underlying moral discourse of responsibility, scarcity and altruism) endorsed by some businesses, governments, non- pro it organizations and consumers alike adhere to constant externalization, vague tropes, misleading claims or outright falsi ication to convince the general public that they are ‘doing the right thing’ to save the planet. Green neoliberalism is still neoliberalism that favors invasion of market processes in social and political life. It is not enough to promote the recycling of plastic bottles without questioning the privatization of water. Luke (2013, 89) vividly illustrates the neoliberal ethic of ‘reduce-reuse-recycle’ when he states: [b]y using recycled steel, plastic bottles, tires, blue jeans and cotton to build a new 2013 Ford car body, dashboard, engine gaskets, carpet and sound dampening, what was old and worthless becomes newly pro itable again, and neither the automotive industry and car reliance nor the global oil crisis are questioned. As Khosla (2005, p. 23) remarks [i]n this age of magical marketing, ideological tricks are being manipulated with new zeal, and it behooves us to look deeper than the surface symptoms, signs and symbols of oppression. Green neoliberalism does not challenge the current economic and political systems, and for some businesses, governments and organizations, its nonthreatening appeal is highly pro itable. As Luke (2013, p. 83) reminds us: […] the ethics behind the uneasy merger of sustainability and development are aimed at preserving not the Earth, but rather the power, privilege and position attained by businesses developing their markets. Eco-ef iciency, for example, is environmentally good and commendable but also highly pro- itable when it ignores the social costs for individuals or groups who bear the brunt of that cost. The so-called “triple bottom line” (allegedly reconciling pro its, planet and people) often sums up into a “reshaping of environmental crisis to the market’s ends” (ROGERS, 2009). Green(er) capitalism rarely divulges full information to consumers or, as Žižek’s (2011) comments, surreptitiously packages it into a “Starbucks logic” where customers are not only buying a commodity but also buying a logic of ethical and environmental consciousness (i.e., ethical sourcing and responsibly grown coffee, global environmental stewardship, and local community involvement) embodied in the product and corporate image. As Harvey (1973, p. 156) argues, commodity refers to a speci ic product but also to a set of social relationships. Rogers (2009) succinctly summarizes the functioning of this “greener” logic of neoliberalism when she writes [ i ] n s t e a d o f o u r g r e a t e r e n v i r o n m e n t a l consciousness transforming the way business is conducted, what we more often see is the market contorting ecological problems so they it into some sort of pro itable framework. Yet, Rogers (2009) insists that consumers should not be paralyzed by such logic but rather politicized because “[t]o bring about change we must experience ourselves as political actors and not simply shoppers who are supposed to vote with our wallets.” Greening, or the process of transforming spaces and lifestyles into allegedly more environmentally friendly practices, however, should be at the service of redistributive justice rather than solely competitiveness and growth. A green or sustainable economy does not automatically ful ill redistributive justice if what is sustained is the same urbanism driven by pro its and inequalities – even when presented in a slightly greener shade. Sustaining Social Justice There are various reasons why the social is often relegated to lower or after-thought considerations. urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 GILBERT, L.166 The quantitative prominence of the economic dimension and the dif iculty to balance the social and environmental implications of sustainability tend to avoid the far more dif icult need for relational or interdependency analysis. Sustainability is holistic and interdisciplinary in intention but not necessary in measurement practices (DAVIDSON et al., 2012; FOLADORI, 1999). Measuring sustainability is more often than not approached from a disci- plinary perspective (FOLADORI, 1999). Economic measurements are based on the methodology of liberal economics where intergenerational and intragenerational (equity) social relations and social differences are dif icult to account for and are at best average, thus obscuring rather than detecting differences (FOLADORI, 1999). Although it is possible to quantify social inequality, such measurements often remain detached from historical economic organization (production, distribution and consumption of services and activities) and their social relationships (HARVEY, 1973; MARCUSE, 1998; FOLADORI, 1999). Moreover, although sustain- ability is inevitably an interdisciplinary concept, measurements and policy mandates tend to be fragmented along jurisdictional and geographical lines (FOLADORI, 1999; DAVIDSON et al., 2012). Thus, the tensions between the three pillars of sustainability are not only due to the facts that capitalism is built on social inequalities and environmental injustices but also in the fact that the environmental and social are weighted differently and manipulated more easily in such system. State and planning institutions have long professed to be concerned with equity without necessarily delivering equitable outcomes. As Dale, Dushenko and Robinson (2012, p.13-14) remind us [a]fter twenty-odd years of struggling with sustainable development at the local scale, we as practitioners, scholars and educators ind ourselves with an implementation de icit… The implementation gap appears to be underpinned by a fundamental gridlock of overlapping and often con licting government jurisdictions, path dependencies, technological lock-in and institutional rigidities. This implementation gap limits and erodes the possibility of everyday citizenship. Everyday citizenship has been an object of struggle for different groups to claim various rights for themselves; it has been a fundamental vehicle through which people have sought social justice, recognition of their marginalization and needs, and participation in the political realm. This performance of substantive and differentiated citizenship sought to enable groups and individuals to make particular claims to reaf irm and rearticulate their rights. The struggle for recognition and social justice generally revolves around claims for inclusion in the polity in which one justly seeks membership in a qualitatively different way. Whatever their particular identities, interests or spatial scales, political citizenship actions aim at breaking down the processes producing inequalities. The city becomes the political space where the articulation and claiming of new citizenship rights becomes possible because it is the sphere of everyday interactions where changing mentalities become possible through battles over urban issues and urban policies (often as a proxy for larger struggles). As Edward Soja (1989, p. 6) reminds us, [w]e must be insistently aware of how space can be made to hide consequences for us, how relations of power and discipline are inscribed into the apparently innocent spatiality of social life. Thus, the urban is both the sphere of where citizenship becomes rhizomatic, i.e., connecting to any or multiple communities, and where mobilizations of residents, networks, and institutions potentially arise against unequal relationships of power. Central to social justice is the right to participate, the right to difference. Lefebvre’s (1968) right to difference was motivated by the rapid changes of industrialization and urbanization of the 1960s. Lefebvre (1968) develops the concept of “difference” as a challenge to the ideology of alienation, homogeneity, and marginalization. The right to difference is a fundamental principle in the struggle for democracy – and holding the tenets of democratic freedom and equality to its professed ideals. For Lefebvre (1968), the right to difference is expressed through the right to the city, i.e., the right to resist dominating and oppressive conditions by engaging and participating in an alternative that urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City 167 reasserts social realities into political ideologies and market strategies. The right to difference is the right to claim, to struggle, and to rede ine the relationship between alienation and appropriation. It is the right to urban change. The reinsertion of the social into the political and economic enables the practices and performances of everyday rights (right to work, education, health, housing, services, etc.) – the right to claim rights. As David Harvey (2008, p. 23) claims: The right to the city is far more than the indi- vidual liberty to access urban resources: it is a right to change ourselves by changing the city. It is, moreover, a common rather than an individual right because this transformation inevitably depends upon the exercise of a collective power to reshape the processes of urbanization. The freedom to make and remake our cities and ourselves is, I want to argue, one of the most precious yet most neglected of our human rights. T h e r i g h t to a p p ro p r i a te u r b a n s p a c e i s carried through the right to participation, i.e., the involvement of residents/citizens/inhabitants to institutionalized control over urban life, including participation in political life, and the management and administration of the city (DIKEÇ, 2001). However, participation must be meaningful to yield change and cannot be routinized as an administrative or bureaucratized process, as we often see, for example, in planning or urban (re) development processes. Lefebvre’s (1968) right to the city is a claim for active participation in society without parameters established by the status quo. The right to the city and to difference is aimed at ighting discrimination and repression through a reinvention or rede inition of the political and the development of a new urban/societal ethics. The right to the city calls for the right not to be excluded. It calls for a new centrality, a renewed urban society, a different urban mode of production – one that embodies social justice and an ecological consciousness. For Lefebvre (1968) and Harvey (2003), the right to the city is not only a right to access the existing but explicitly a right to transform, a right to remake ourselves by creating a different type of urbanism, a new urban future. Conclusion The discourses of sustainability and greening do not necessarily take us to the future but rather to the status quo if redressing inequality is not at the core of such agendas. Claims for social justice are not about political correctness or environmental awareness but about claims of inclusion for people who have been marginalized by urban processes. Justice and equity claims are challenging to realize but social justice remains an important concept that should be closely examined. Additionally, the differences between discourses and the materialities of sustainability, between social needs and urban allocations, between planning ideology and im plementation, between what Marcuse (1998, p. 104) sees as the contested performance of sustainability as an “honourable goal” and as a “camou laged trap” should be denounced. Urban transitions motivated by green neoliberalism will only aggravate existing polarization given that such urban transition generally occurs on the backs of marginalized communities, further silencing them. A just urban transition will not only improve ineffective transportation systems and create new green jobs, it will also give a voice and the ability to act to the people. Envisioning and transitioning toward a greener urbanism is not simply an exercise in planning for the future; it must also account for past and present injustices. In calling our attention to the hidden assumptions of urbanism, Lipsitz (1998, p. 2) calls for “a presence of mind” (drawing from Walter Benjamin) – an awareness of the present moment to shape a different future. Urban transition should not be an excuse to disguise or ignore the exploitative practices of conventional or green urbanism because, as David Harvey (1973, p. 43) states: “we cannot resolve dif iculties by pretending they do not exist”. Such an approach has been predominant for too long and any urban transition toward a greener urbanism without social justice blunts its revolutionary potential. urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 GILBERT, L.168 References AGYEMAN, J.; BULLARD, R. D.; EVANS, B. (Ed.). Just sustainabilities: development in an unequal world. London: Taylor & Francis, 2012. AMIN, A. The good city. Urban Studies, v. 43, n. 5-6, p . 1 0 0 9 - 1 0 2 3 , 2 0 0 6 . h t t p : / / d x . d o i . o r g / 1 0 . 1 0 8 0 /00420980600676717 BEATLEY, T. Green urbanism: learning from european cities. Washington: Island Press, 1999. BRAUN, B. Environmental issues: writing a more- than-human urban geography. Progress in Human Geography, v. 29, n. 5, p. 635-650, 2005. http://dx.doi. org/10.1191/0309132505ph574pr BULKELEY, H. Urban sustainability: learning from best practice? Environment and Planning A, v. 38, n. 6, p. 1029-1044, 2006. http://dx.doi.org/10.1068/a37300 COLANTONIO, A.; DIXON, T. Urban regeneration and social sustainability: best practice from european cities. New York: Wiley, 2011. DALE, A.; DUSHENKO, W.; ROBINSON, P. J. (Ed.). Urban sustainability: reconnecting space and place. Toronto: University of Toronto Press, 2012. 296 p. DAVIDSON, K. M. et al. Assessing urban sustainability from a social democratic perspective: a thematic approach. Local Environment, v. 17, n. 1, p. 57-73, 2012. http:// dx.doi.org/10.1080/13549839.2011.631990 DAVIDSON, M. Social sustainability: a potential for politics? Local Environment, v. 14, n. 7, p. 607-619, 2009. http://dx.doi.org/10.1080/13549830903089291 D I K E Ç , M . J u s t i c e a n d t h e s p a t i a l i m a g i n a t i o n . Environment and Planning A, v. 33, n. 10, p. 1785- 1805, 2001. http://dx.doi.org/10.1068/a3467 DOBSON, A. Social justice and environmental sustainabi- lity: ne’er the twain shall meet. In: AGYEMAN, J.; BULLARD, R. D.; EVANS, B. (Ed.). Just sustainabilities: development in an unequal world. London: Taylor & Francis, 2012. FAINSTEIN, S. S. The just city. Ithaca: Cornell University Press, 2010. 224 p. FAINSTEIN, S. S. Cities and diversity: should we wa n t i t ? S h o u l d w e p l a n f o r i t ? U r b a n A f f a i r s Review, v. 41, n. 1, p. 3-19, 2005. http://dx.doi.org/ 10.1177/1078087405278968 FOLADORI, G. Sustentabilidad ambiental y contradicciones sociales. Ambiente & Sociedade, v. 5, n. 2, p. 19-34, 1999. FRASER, N. Reframing global justice. New Left Review, v. 36, p. 69-88, 2005. FRIEDMANN, J. The prospect of cities. Minneapolis: University of Minnesota Press, 2002. FRIEDMANN, J. The good city: in defense of utopian thinking. International Journal of Urban and Regional Research, v. 24, n. 2, p. 460-472, 2000. http://dx.doi. org/10.1111/1468-2427.00258 FRIEDMANN, J. Planning in the public domain: from knowledge to action. Princeton: Princeton University Press, 1987. 229 p. GANDY, M. Concrete and clay: reworking nature in New York city. Cambridge: The MIT Press, 2002. GLOBE AWARD. Sustainable city award. Stockholm, 2014. Available at: <htt p://globeaward.org>. Accessed in: 28 Feb. 2014. KEIL, R. Progress report: urban political ecology. Urban Geography, v. 24, n. 8, p. 723-738, 2003. http://dx.doi. org/10.2747/0272-3638.24.8.723 KHOSLA, P. Privatization, segregation and dis- possession in western urban space: an antiracist, marxist-feminist reading of David Harvey. Toronto: York University, 2005. Available at: <http://fes.yorku.ca/ iles/ outstanding_papers/punam-khosla.pdf>. Accessed in: 25 Nov. 2013. HALL, P. Good cities, better lives: how Europe discovered the lost art of urbanism. New York: Routlege, 2013. HARVEY, D. Social justice and the city. Athens: University of Georgia Press, 1973. HARVEY, D. The right to the city. New Left Review, v. 53, p. 23-40, 2008. H A RV E Y, D. T h e r i gh t to t h e c i t y. I n te r n a t i o n a l Journal of Urban and Regional Research, v. 27, n. 4, p. 939-941, 2003. http://dx.doi.org/10.1111 /j.0309-1317.2003.00492.x HARVEY, D. Justice, nature, and the geography of difference. Cambridge: Blackwell, 1996. HOUGH, M. Cities and natural process. New York: Routledge, 1995. urbe. Revista Brasileira de Gestão Urbana (Brazilian Journal of Urban Management), v. 6, n. 2, p. 158-169, maio/ago. 2014 Social Justice and the “Green” City 169 INTERNATIONAL COUNCIL FOR LOCAL ENVIRONMENTAL INITIATIVES – ICLEI. L ocal Governments for Sustainability. Green urban economy. Germany, 2013. Available at: <http://www.iclei.org/our-activities/our-agendas/green- urban-economy.html>. Accessed in: 25 Nov. 2013. LEFEBVRE, H. Le droit à la ville. Paris: Anthropos, 1968. 160 p. LIPSITZ, G. The possessive investment of whiteness: h o w wh i t e p e o p l e p ro i t f ro m i d e n t i t y p o l i t i c s . Philadelphia: Temple University Press, 1998. 320 p. LUKE, T. W. Corporate social responsibility: an uneasy merger of sustainability and development. Sustainable Development, v. 21, n. 2, p. 83-91, 2013. http://dx.doi. org/10.1002/sd.1558 MARCUSE, P. Sustainability is not enough. Environment and urbanization, v. 10, n. 2, p. 103-111, 1998. http:// dx.doi.org/10.1177/095624789801000201 ORGANIC GARDENING. Green cities. Emmaus, 2014. Available at: <http://www. organicgardening.com/living// green-cities>. Accessed in: 28 Feb. 2014. POLÈSE, M.; STREN, R. The social sustainability of cities: diversity and the management of change. Toronto: University of Toronto Press, 2000. 384 p. REUTERS ENVIRONMENTAL FORUM. Top 5 greenest cities in the world. New York, 2010. Available at: <http://blogs.reuters.com/environment/2010/03/01/ top-5-greenest-cities-in-the-world/>. Accessed in: 28 Feb. 2014. ROGERS, H. The greening of capitalism? International Socialist Review, n. 70, 2009. Available at: <http:// isreview.org/issue/70/greening-capitalism>. Accessed in: 25 Nov. 2013. SIEMENS. The green city index. Munich, 2012. Available at: <http://www.siemens.com/greencityindex>. Accessed in: 28 Feb. 2014. SOJA, E. Postmodern geographies: the reassertion of space in critical social theory. New York: Verso, 1989. 228 p. VAN DER RYN, S.; COWAN, S. Ecological design. Washington: Island Press, 1996. W O R L D C O M M I S S I O N O N E N V I R O N M E N T A N D DEVELOPMENT. Our common future. Oxford: Oxford University Press, 1987. 383 p. ZETTER, R.; WATSON, G. B. Designing sustainable cities in the developing world. Burlington: Ashgate, 2006. 210 p. ŽIŽEK, S. Slavoj Žižek on Starbucks and the delusion of green capitalism. Aol On, 2011. Available at: <http:// on.aol.com/video/slavoj-zizek-on-starbucks-and-the- delusion-of-green-capitalism-517371473>. Accessed in: 25 Nov. 2013. Recebido: 25/12/2013 Received: 12/25/2013 Aprovado: 10/03/2014 Approved: 03/10/2014 
work_iyojaruqfjhdhpw7kxh26y34ym	----	Juha Räikkä, Social Justice in Practice This is a repository copy of Juha Räikkä, Social Justice in Practice. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/108568/ Version: Accepted Version Article: Lawford-Smith, H. (2016) Juha Räikkä, Social Justice in Practice. Journal of Value Inquiry, 50 (2). pp. 473-478. ISSN 0022-5363 https://doi.org/10.1007/s10790-014-9453-x eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Unless indicated otherwise, fulltext items are protected by copyright with all rights reserved. The copyright exception in section 29 of the Copyright, Designs and Patents Act 1988 allows the making of a single copy solely for the purpose of non-commercial research or private study within the limits of fair dealing. The publisher or other rights-holder may allow further reproduction and re-use of this version - refer to the White Rose Research Online record for this item. Where records identify the publisher as the copyright holder, users can verify any specific terms of use on the publisher’s website. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Juha Räikkä. Social Justice in Practice. Switzerland: Springer, 2014. ISBN 978-3-319-04633-4 £72.00 pb. Imagine yourself standing on the edge of a canyon, marveling at the terrain below, wondering about all the sights currently obscured from your view, and lamenting that you just don't have time to commit to the steep descent in and long trek across, which would give you a perspective from right up close. Being handed Juha Räikkä's new book Social Justice in Practice is like being told there's a fying fox you can take: the canyon is applied political theory, and the fying fox allows the reader to see many different issues, at some speed, and always with the wider context in view. Tuck your loose items of clothing away in your bags, and hop on. The book is loosely organized into six sections, with twelve chapters overall. The frst two sections ("Theory and Practice" and "Action and Uncertainty") introduce readers to the issues around the methodology of contemporary political theory, from whether the arguments of political theory should be more sensitive to what is feasible, through the correct weight to assign to citizens' political expectations that things will remain more or less the same, the bases of political reasoning about what is second-best when ideally preferred alternatives prove to be unavailable, and to what is taken as presumed (i.e. which side has the burden of proof) when it comes to political argumentation and political obligation. The third and sixth sections ("Unmasking Injustices" and "Self-Deception as Explanation") concern epistemic issues, including the acceptability of conspiracy theories, and self-deception for both religious and cultural reasons. The fourth section ("Privacy and Justice") concerns information broadly construed, in particular privacy and secrets, and the ffth section ("Morality and Inner Life") is about forgiveness and alien beliefs. The chapters are self-contained, so readers can feel free to either read the book from cover to cover, or to dip into different chapters as suits their interests. It would be impossible in a review-length piece to engage deeply with all twelve of the topics contained in Räikkä's book. I've chosen to focus in what follows on the parts of the book that I know best, to maximize the chance of saying something useful. So I'll restrict my attention to just two of the chapters, which are, respectively, "Social Justice in Practice", and "How to Find the Second-Best Option" (noting, for the record, that I found "The Dilemma of Conservative Justice"―wedged between these two―especially interesting and useful). Readers interested in, or more familiar with, the book's later topics are encouraged to consult the book directly. In recent years there has been some backlash against the utopianism of much contemporary political theory, which has taken the form of increased discussion about the distinction between ideal and non-ideal theory and the proper place of each within political theory as a discipline. Some think ideal theory has no place at all, because we should be solving the problems we actually have rather than constructing perfect theoretical worlds in which those problems are abstracted away from; some think non-ideal theory has no place at all, because it involves unacceptable concessions to the status quo. The claim that political theory needs a greater proportion of feasibility-constrained arguments weighs in on the non-ideal side of this debate. It doesn't entail that this is the right kind or the only kind of political theorizing; just that it's important, both for evaluating the current political order, and for shifting to a better one, that we take certain constraints as fxed and think about the improvements we can make in spite of them. In Chapter 1, "Social Justice in Practice", Räikkä argues that feasibility arguments are of most beneft to those who in fact cannot make use of them, and that given his view of the role of political theory, it's just not true that political theory needs a greater proportion of feasibility-constrained arguments. Let me explain each of these claims, before commenting on what I think is mistaken about them. The frst claim, about beneft, is that in political life, a claim that some outcome is infeasible and therefore we should pursue an alternative course of action will often be benefcial to those who, by their actions, actually make the outcome infeasible. Räikkä gives many examples, including: the people of a country who claim that the government's improving public health by prohibiting the consumption of alcohol would result in a black market for liquor; the talented, who claim that without suffcient economic rewards they would not be motivated to exercise those talents for the beneft of the greater society; nurses, who claim that without increased wages they'll emigrate to countries where the pay is better; religious groups, claiming that if ritual slaughter of animals is prohibited it will simply be outsourced to the black market where it will likely involve even more suffering for the animals; and parents of sick children, who claim that if the government decreases its subsidies of the required medicines they'll turn to less safe but cheaper alternatives online. In each case, the people making the claims about what outcomes would follow if certain measures were implemented are themselves responsible for producing those outcomes. People could obey a law prohibiting alcohol, the talented could take talent as its own reward, nurses could work for comparatively low wages, religious groups could stop slaughtering animals, and parents could simply spend more on medicines. But feasibility arguments are agent-relative; they explicitly exclude 'self-prediction'. I can't say "it's infeasible that I write this review of Räikkä's book, because I'm going to watch another episode of The Killing instead" (the hidden premise being that I ought to write the review only if it's suffciently feasible that I do). Many analyses of feasibility assume the trying of the relevant agent, so they would say my writing the review is feasible if I would be suffciently likely to write it, so long as I tried. But of course, if I tried I'd likely succeed, so writing the review is not infeasible for me after all. But the citizens, the talented, the nurses, the religious, and the parents in Räikkä's examples are all in that position, so while they'd do well out of having their claims about infeasibility accepted (in gaining concessions by government), they're in fact not in a position to make those claims. Infeasibility is no excuse for those whose actions cause it. Those arguments, then, are really just threats in disguise: the nurses are saying that if the government doesn't raise their wages, they'll leave the country. Räikkä's second claim relies on the role of political theory being to inform public debate over political issues. Accepting for the moment that this is its role (I do not think it is and will soon explain why), his claim is that the overall message political theorists give the public should be "be better", rather than "give in to threats". A nice example of this choice is featuring in the news and across social media at the moment: nail polish that detects rape drugs in beverages. The nail polish is clearly a non-ideal solution, because it takes the prevalence of attempted drugging for granted, and it looks to protect potential victims by giving them a way to detect the presence of the drugs in their drinks. Many commentators are angry about the invention, because they think it sends the wrong message, namely that it's the responsibility of the potential victim to ensure she isn't raped (to wear the nail polish, to check her drinks) rather than the responsibility of the would-be rapists not to rape. If political theorists were to have the opportunity to weigh in on this debate, they should be giving "ideal" argumentation, namely about the wrongness of rape, the importance of enthusiastic consent, about gender-egalitarianism, and about mutual respect; not "feasibility-constrained" argumentation, conceding that the world is a place with rape in it, and advising women to protect themselves as best they can (or others to protect potential victims as best they can, including by coming up with these kinds of inventions). In Räikkä's view, the role of political theory is to inform public debate, and this should be done by sending the clear, "ideal" message: which in this case would be that it is the responsibility of men not to rape. So much for the main claims of the chapter; now to the problems with them, taking the latter claim frst. While one role of political theory may well be to weigh in on public political debate, that is surely not its only role. Political Theory is a sub- area of Philosophy, and philosophical inquiry is broadly-speaking the pursuit of truth. It determines both evaluative truths (truths about what is good, whether or not it can ever be actual) and normative truths (truths about what we should attempt to bring about). Setting aside the evaluative truths, the normative truths may be unconditional (ought p) or conditional (given that not-p, ought q). The following two claims are not mutually exclusive: would-be rapists ought not to rape, and, given that at least some would-be rapists will in fact rape, victims ought to be protected as much as possible from potential attack. We can lament the fact that our circumstances are such that the latter is true―I'm sure we would all agree that we'd much rather be in a world in which anti- rape drug nail polish were not a useful invention. (Whether the nail polish is an effective and not overly demanding means of protection is an empirical question). Whether a political theorist wants to make an unconditional, "ideal" claim, or a conditional, "feasibility-constrained" claim, depends on the kind of project she is interested in, and wanting to weigh in on public debate does not determine that she make only the former types of claims. Taking Räikkä's side in this debate has the advantage of avoiding any accusation of victim-blaming, because it avoids giving any responsibilities at all to those who might either use the nail polish, or who might create the nail polish or other similar inventions, and therefore avoids blaming them if they fail to act on those responsibilities (which would indeed be a despicable implication in the case of the victim: we certainly do not want to say that a person who fails to wear the nail polish is in any sense at all responsible for her situation if she is attacked). But going in for feasibility-constrained recommendations has the advantage of not restricting moral advice to contexts in which there is no wrongdoing. Even if the reader disagrees over the diagnosis of the nail polish case, there are many other cases in which we want to know what the good worlds look like given that certain wrongs will remain in place, or at least not be completely eradicated). Returning to the frst claim, this makes a serious mistake in understanding agent-relativity. Feasibility assessments do not permit of self-prediction, but in none of the examples Räikkä used was there something resembling a "self"―either an individual self or collective agent―whose actions were being predicted. He acknowledges this, to some extent, when he says "to assume that nurses could decide not to emigrate... is not to assume that there is a strictly organized collective agent", but it's not merely that there is no "strictly organized" collective. There are only uncoordinated aggregates of persons: citizens of a country, those with talent, nurses, those in a certain religious group, parents. Perhaps there are cases, such as when nurses are represented by strong and cohesive labour unions, or when religious groups are coordinated within one church, where the groups can act on (the functional equivalents of) intentions, and thereby count as a single unit for the purposes of assessing feasibility. Parents, those with talent, and most likely citizens, do not count in this way. Thus the claim that those who would most beneft from infeasibility arguments cannot make use of them falls down. Assessments of what is feasible, and how our normative recommendations ought to be adjusted in light of what is feasible and what isn't, are usually made by political theorists, political analysts and commentators, policy advisors, those in government. Those people can all make predictions about what will happen if certain measures are implemented, such as making the consumption of alcohol illegal, or refusing to raise nurses' wages. They might well reason that on balance, a future in which nurses simply accept low pay without being incentivized to emigrate by neighbouring countries' higher wages is infeasible, and give a feasibility- constrained argument (holding this fact fxed) that it is better to swallow the costs of raising wages than the costs of large-scale emigration of nurses. Räikkä does not deny that this is possible, but he greatly understates the extent to which this is the primary use of feasibility-constrained argumentation, and the use to which many working on feasibility envisage it being put to. In Chapter 3, "How to Find the Second-Best Option", Räikkä makes a helpful distinction between three different ways in which we might approximate when our political "bests" are out of reach. He calls these "condition", "degree" and "denial". Condition-based approximation tells us to get as many of the things that matter as we can. Degree-based approximation tells us to get as much of each of the things that matter as we can. And denial-based approximation tells us to go for the ideal even when we know it won't quite be realized, because what we'll get will probably be close enough to be an adequate approximation What's great about this chapter is that it doesn't make the same mistake as quite a bit of the discussion of second-bests in political theory by following the economic results and assuming the interdependence of the desirable elements of the "best". Values are independent: it's just not true that fnding one to be out of reach we should revise our whole conception of what we're aiming for. To put these different methods of approximation in terms of a political case, imagine that the case for Scottish Independence is strong on the grounds of community, security, and self- determination. And now imagine that our best empirical predictions tell us that we just cannot get an independent Scotland that is fully self-determining, while also fully secure and fully embodying community. Assuming these three values to have equal weight, the condition-based approach would tell us to take whichever two we liked (3/3 conditions is best, but 2/3 conditions beats 1/3); the degree-based approach would tell us to get as much self-determination, security and community as we can (any confguration with some of each value instantiated beats any confguration in which one value remains entirely uninstantiated); and the denial-based approach tells us to just go ahead with whatever the original plan was, assuming things will work out as "close enough". There are two problems with the discussion in this chapter. The frst is that the example Räikkä uses (about where to take a holiday) is unhelpfully apolitical, and misleading in the case of the degree-based conception. The problems with getting "more rather than less" of a value are put in geographical terms, and give the wrong results for that reason, because getting closer to a holiday destination (and ending up somewhere in the ocean) is quite obviously not better than going somewhere else entirely. But a more sophisticated understanding of the metric of degrees ―which is to say, what counts as more or less of something―will avoid this problem. Approximating a relaxing holiday in the sunshine might take you geographically far afeld from the original destination, just as approximating comprehensive security, community, and self-determination in an independent Scotland might take you politically far afeld from the utopian vision of independence. If the scale is specifed well, the imperative to get more rather than less doesn't look nearly as problematic. Räikkä's argument in the chapter is that real people when making decisions about approximation don't actually rely on any of these three theoretical versions of approximating, and therefore those versions can't be criticized on the grounds that they cause poor decision-making. Even if the outcomes of their decisions often align with the outcomes any one such procedure would yield, that is not a reason to be critical of that procedure. He takes this to make the three theoretical versions of approximation immune from empirical rejection. However, what he doesn't comment on is which of the three is in fact theoretically the most well-motivated, or has the greatest advantages over the others. The denial-based approach looks obviously inappropriate, yet little is made of this. Perhaps his aim was only to insulate practice from theory (and vice versa), but having made these useful distinctions between the ways in which approximating might be done, it was somewhat unsatisfying that more was not said about how second-best theorizing ought to go, and what the right relationship between such theory and practice might look like. Holly Lawford-Smith University of Sheffeld 
work_iz66yxofdfartnanworlyffy4a	----	Climate justice in a carbon budget  Article  Accepted Version  McKinnon, C. (2015) Climate justice in a carbon budget.  Climatic Change, 133 (3). pp. 375­384. ISSN 0165­0009 doi:  https://doi.org/10.1007/s10584­015­1382­6 Available at  http://centaur.reading.ac.uk/40496/  It is advisable to refer to the publisher’s version if you intend to cite from the  work.  See Guidance on citing  . To link to this article DOI: http://dx.doi.org/10.1007/s10584­015­1382­6  Publisher: Springer  All outputs in CentAUR are protected by Intellectual Property Rights law,  including copyright law. Copyright and IPR is retained by the creators or other  copyright holders. Terms and conditions for use of this material are defined in  the End User Agreement  .  www.reading.ac.uk/centaur    CentAUR  Central Archive at the University of Reading  Reading’s research outputs online http://centaur.reading.ac.uk/71187/10/CentAUR%20citing%20guide.pdf http://www.reading.ac.uk/centaur http://centaur.reading.ac.uk/licence 1 Climate Justice in a Carbon Budget Catriona McKinnon Department of Politics and International Relations University of Reading Whiteknights Reading RG6 6AA United Kingdom c.mckinnon@reading.ac.uk +44 (0) 118 387 8502 Institute of Climate Change and Public Policy Nanjing University of Information Science and Technology (NUIST) 219 Ningliu Road, Pukou District Jiangsu Province 210044 China Author biog: Catriona McKinnon is Professor of Political Theory, and Director of the Leverhulme Programme in Climate Justice, at the University of Reading. She is the author of Climate Change and Future Justice: Precaution, Compensation, Triage (Routledge 2011), and co-editor of Climate Change and Liberal Priorities (Routledge, 2012) and of The Ethics of Climate Governance (Rowman and Littlefield, forthcoming). She is currently writing a book about climate justice and international criminal law. mailto:c.mckinnon@reading.ac.uk 2 3 Abstract The fact of a carbon budget given commitment to limiting global-mean temperature increase to below 2°C warming relative to pre-industrial levels makes CO2 emissions a scarce resource. This fact has significant consequences for the ethics of climate change. The paper highlights some of these consequences with respect to (a) applying principles of distributive justice to the allocation of rights to emissions and the costs of mitigation and adaptation, (b) compensation for the harms and risks of climate change, (c) radical new ideas about a place for criminal justice in tackling climate change, and (d) catastrophe ethics. Keywords: carbon budget; climate ethics; intergenerational justice; distributive justice; compensation; criminal justice; catastrophe ethics. Climate Justice in a Carbon Budget In their paper Knutti and Rogelj lay out fourteen facts supported by climate science showing CO2 emissions to be a scarce resource, given commitment to limiting global-mean temperature increase to below 2°C warming relative to pre- industrial levels. These facts raise questions that require answers informed by ethics and political philosophy and – further on – the social sciences, in the search for feasible processes and institutions of equitable and effective climate governance. In this paper I shall lay out a roadmap of approaches to climate justice given how the fact of the carbon budget brings future people within the scope of theories of climate justice. The roadmap will start with an outline of some well established approaches informed by distributive justice. Assuming that we can settle on a just allocation of emissions and costs that properly takes account of the claims of both present and future people, further questions of justice are raised given the carbon budget. First, what do those who exceed their allocation, or who fail to meet costs rightly assigned to them, owe to innocent people affected by these 4 failures? Standardly, principles of corrective justice guide thinking about who owes what to whom when things go wrong in ways such as this, at any given point in time. The roadmap in the paper will highlight a new way in which these principles are fit to guide thinking about failures in the face of the carbon budget: that present people are liable to provide resources enabling satisfaction of possible compensation claims made by future people put at risk of harm by the failures of those present people. The second question of justice raised by failures to do what justice demands in the face of the carbon budget takes the roadmap into entirely new territory. When people act contrary to what is required by justice in ways that risk catastrophic consequences for innocent others, despite knowledge of the risks they create through their conduct, principles of criminal justice are activated. The paper will indicate a place of for criminal justice in the pantheon of our ethically informed approaches to climate change in the face of the carbon budget. The facts identified by Knutti and Rogelj are as follows. 1. CO2 longevity: a large fraction of CO2 emitted stays in the atmosphere for centuries and longer. 2. The future effects of CO2 emissions are uncertain, and a large fraction of climate change caused by these emissions is irreversible insofar as that CO2 is not actively removed from the atmosphere. 3. The real warming commitment is the inertia of present infrastructures and practices which are not changing so as to reduce global CO2 emissions. 4. Every ton of CO2 emitted causes further warming. 5. The causal contribution made by countries and generations to past and future climate change is approximately in proportion to their total cumulative emissions. 6. Two thirds of the total CO2 budget in line with a 2°C warming limit has already been emitted; at current emission rates, the budget will be depleted in around 30 years. 5 7. There is a surplus of CO2 available in fossil fuel resources beyond the budget, which means that some carbon will have to remain in the ground, or be sequestered, in order to stay within the carbon budget. 8. There is uncertainty about the exact size of the carbon budget. 9. There have been great historical inequalities between countries in their cumulative CO2 emissions, and in the distribution of the benefits created by emissions. 10. Taking into account all drivers of climate change, historical contributions to it are very unevenly distributed over countries. 11. Achieving emissions reductions to remain within the carbon budget is a global collective action problem. 12. Present delays in mitigation efforts create greater mitigation burdens for subsequent generations. 13. Delays in mitigation are commonly justified by reference to a social discount rate. The choice of a social discount rate is an ethical choice reflecting the way in which future generations are valued by the current generation. 14. Geoengineering under a climate emergency also requires equitable solutions in theory and in practice. Given how anthropogenic CO2 emissions do not remain at source but rather mingle evenly through the atmosphere, and given how climate change will damage (indeed– and is already causing – damage to the planet as a habitat for human beings (let alone other species), the fact that there is a carbon budget and that it is quickly being depleted (facts 4 and 6) brings climate change within the purview of philosophical theories of justice. In the context of a carbon budget the questions addressed by different families of (interconnected) theories are as follows. (1) Distributive justice: ensure patterns of distribution of a moderately scarce good such that the benefits delivered by the good, and the burdens involved in maintaining the pattern, are justly shared by all parties in the 6 distribution.1 Given a carbon budget, in present circumstances, the good to be distributed is emissions allocations and the burdens to be distributed are the costs created by mitigation and adaptation programmes. There are two things worth noting here. First, given that we will ultimately have to move to a zero carbon economy, emissions allocations will at some point transform from being a moderately scarce good to being an extremely scarce good (perhaps sooner than we think). In these circumstances it is not clear that principles of distributive justice continue to apply to emissions allocations. Second, following Henry Shue, what really matters from a moral point of view is that human energy needs are met (especially those of the global poor), and it is only contingently the case that emissions allocations do this (Shue 2013). These needs could be met by non carbon based energy production. Thus in a decarbonised global economy questions of distributive justice will still exist but will be refocused on the allocation of access to non-carbon based energy sources so as to ensure justice in the distribution of the benefits of this access and the costs of providing and maintaining it. (2) Corrective justice: ensure that wrongs done are repaired. Theories of corrective justice contain principles of liability to connect those causing wrongful harm with those they harm in ways fit to support claims for compensation by the latter.2 In the context of a carbon budget, those who exceed their emissions allocations and/or fail to bear the costs of mitigation and adaptation that are rightfully theirs, are prima facie liable to provide compensation to innocent people suffering climate-related harmed as a result. Cases in tort law with this character are appearing in law courts with increasing frequency (Adam 2011). It is worth noting that although most accounts of liability under corrective justice specify negligence as a mens rea, not all do, and not for every tort. If liability for 1 In modern times, the most famous theory of this type is John Rawls’ ‘justice as fairness’ (Rawls 1971). Thinking about distributive justice from a philosophical perspective has a long history, and much contemporary political philosophy (at least in the Anglo-American tradition) is concerned with questions of distributive justice. 2 An important book in this field is Coleman 1992. 7 climate-related harms is strict - that is, if it does not depend on arguing that the defendant ought to have known the risks of climate related harm created by emissions - then excuses related to supposed uncertainty in climate science become irrelevant. (3) Criminal justice: ensure the fair prosecution, trial and punishment of those who commit public wrongs.3 There is disagreement in theories of criminal justice about the purpose of punishment: retribution, deterrence, and the communication of fundamental norms of behaviour for a given community are all candidates. Thus far in the literature on climate justice, criminal justice has played no role. Later on in the paper I shall indicate a role it should play. From the point of view of justice the picture is complicated by facts (1, 2, 8, 9, 10, 12 and 13) about the length of time CO2 remains in the Earth’s atmosphere and thereby affects the climate. These facts make questions about justice in a carbon budget essentially intergenerational as well as intragenerational: members of any current temporal cohort in the community of humanity are capable of significantly and permanently damaging conditions of life for members of temporal cohorts not yet born, who are seriously vulnerable to the conduct of those who precede them, because time’s arrow points in one direction only. Of course, it has always been the case that the past shapes the present and future. But the dawn of the Anthropocene has been marked by an unprecedented change to this feature of the human condition: scientific, technological, and industrial advances make most recent generations (at least in more developed countries) more powerful with respect to the future than has ever been true of any generation in human history.4 The facts about the atmospheric lifetime of CO2 combined with facts about the carbon budget make it necessary to think about climate justice from an intergenerational point of view. One influential account of the demands of intergenerational justice is given by John Rawls: 3 The philosophy of criminal justice is enjoying a renaissance at present. One could do no better than to start with Duff 2009. 4 The term ‘Anthropocene’ refers to a new epoch in the Earth’s history in which human activity is, for the first time, having a significant global impact. See Crutzen and Stoermer 2000. 8 intergenerational justice requires that social cooperation within any temporal cohort meets standards that any generation in time would have wanted all generations prior to it to have adopted and followed, and would want all generations subsequent to it to adopt and follow (Rawls 1993). Crudely, any generation ought to save and conserve in ways it would want every generation to save and conserve.5 If we combine a commitment to intergenerational justice with the philosophical theories of justice outlined above, what are the implications for life under a carbon budget? With respect to distributive justice the first question is: what is a fair distribution of emissions allocations now given a requirement to ensure that future people are able to meet their energy needs? One prominent proposal is that emissions rights be given an equal distribution across all people, given the plausible claim that all people have equal rights to means enabling them to satisfy their energy needs (Jamieson 2005; Vanderheiden 2008; Singer 2002). One way to calculate equal per capita allocations would be to divide the amount of carbon remaining in the budget by the number of people currently alive. This is clearly flawed. First, it makes no provision for transition to non-carbon energy sources within the lifetimes of presently existing people; effectively, it would permit people in the current time slice to blow the carbon budget entirely leaving them with no means by which to satisfy their own future energy needs. (Of course, in this scenario, people would just continue to use carbon-based energy and blow the budget even more). Second, the proposal takes no account of the energy needs of future people. Consider how emissions allocations within a carbon budget would look if 1) a very large number of people will exist in the future and 2) all those future people’s energy needs will require carbon intensive energy in order to be satisfied. If 1) and 2) are true then the fixed amount of carbon remaining in the budget (as Knutti and Rogelj make clear) has to be divided by a much larger 5 Rawls uses his famous ‘veil of ignorance’ to justify this principle as the one any person would choose if they did not know the particular generation to which they belong. For Rawls, this models the irrelevance of temporal location to any person’s status as a being deserving of justice. Note that the claim does not imply that all generations are required to save at a uniform rate for the sake of later generations. (Rawls 1993). 9 number of people than if we attended only to the carbon-based energy needs of present people. And this generates highly negative emissions allocations for present people. What this suggests is that if people in the present are to allocate equal rights to emissions with a positive value to present people, an equal per capita approach - insofar as it is justified by reference to the equal satisfaction of all persons’ energy needs - commits them to the development of non-carbon based energy technologies that will ensure that future people’s energy needs are as well satisfied as those of present people.6 The fact of the carbon budget means that ultimately total global emissions must reduce to zero: all moral arguments about climate change must be sensitive to this. This means that whatever initial distribution of rights to emissions allocations is justified there will come a point – sooner rather than later – at which these rights are trumped by the fact that the carbon budget is close to depletion. The moral parameters created by the fact of the carbon budget are evident in ethical arguments for differential emissions reductions pathways for different countries that, over time, converge to achieve the total reductions necessary to remain within the budget. They are also evident in arguments for the rapid development of zero carbon energy technologies, assuming that people have a basic human right to subsistence which cannot be met without development (Shue 1980). At present, most development is carbon intensive, and involves the creation of ‘subsistence emissions’ (Shue 1993). But such emissions are, as Shue puts it, an ‘avoidable necessity’ (Shue 1995)(as reflected in fact 3): they are necessary for people in developing economies to achieve the subsistence to which they have a basic human right, but this right could be met just as well (perhaps better?) by zero carbon development. Taking seriously the basic human right to subsistence in the face of the carbon budget makes it morally urgent to secure the energy needs of world’s poor through low - ultimately, and soon, zero - carbon development (Shue 2013). 6 An extended discussion of the equal per capita view, and other issues related to distributive justice in the allocation of emissions see Caney 2012. 10 This leads to the second question of distributive justice: what is a just distribution of the costs of mitigating and adapting to climate change, and of the development and implementation of zero-carbon energy technologies, within a carbon budget? Two key principles have received much attention. First, ‘polluter pays’: those who have contributed most to the problem are those who ought to bear the greatest burdens in addressing it. Given facts 9 and 10, the polluter pays principle would allocate higher absolute emissions reductions targets to countries in a more advanced state of development in virtue of their historically disproportionate emissions. But there are problems here. In particular, a temporal cohort in the Anthropocene located within a more developed country might object that they are being required to bear heavy burdens as a result of conduct not their own, for which they could not be held responsible, viz. the conduct of long dead countrymen who undertook development using fossil fuels. This temporal cohort might reasonably argue that any principle of justice governing relations between people across time must not impose burdens on those not responsible for causing the problem being addressed by the burdensome requirement. A different approach which does not allocate burdensome requirements to address a problem by reference to causal contribution to the problem is the ‘beneficiary pays’ principle: those who have benefited from conduct causing the problem are those who ought to bear the costs of solving the problem, even when they have not caused the problem at all. According to this principle, people in more developed countries have benefited massively from their predecessors’ emissions, and this is sufficient to require them to make higher emissions reductions (or to contribute more to global emissions reductions, if past development generated by fossil fuel has been replaced by relatively low carbon development). This approach requires a reliable method for identifying and measuring present benefits generated by past emissions. This is a challenge both from a causal perspective (to what extent can clear chains of causation linking present benefits to past emissions be disentangled from other causal chains?), 11 and from a normative perspective (according to what theory of value does a change in a person’s, or group’s, conditions qualify as a benefit?).7 Furthermore, objections to this approach have, as with objections to the polluter pays approach, focused on the fairness of requiring people who are not responsible for a problem to bear the greatest costs associated with tackling it. Imagine that you go away on a three-month trip, and when you return you find that an uninvited skilful gardener has cultivated a flourishing vegetable patch in an unused bed in your garden, and that she died shortly thereafter, and before your return. You enjoy eating the vegetables, and your health is benefited. In cultivating the patch the gardener made liberal use of the village fertiliser stored in the barn, without realising that the supply is limited. Your neighbours, who have also been away on a three month trip, are now trying to get their vegetable patches established. On seeing your abundant crop, and learning of how it came about, they might make the following demands of you: (i) that you stop using any more of the limited supply of fertiliser; (ii) that you share your vegetable bounty with them, given that its existence is entirely dependent on the mystery gardener having used a disproportionate share of the fertiliser; and (iii) that you work hard with them to find new vegetable growing techniques that do not rely on fertiliser, given that it is fast running out. Advocates of the beneficiary pays principle must explain why your unrequested, but welcome, receipt of the vegetables generates an enforceable and non voluntary requirement for you to comply with some or all of demands (i)-(iii).8 And they must unpack the analogy in a convincing way. Eating freshly grown vegetables has clear, measurable 7 A promising approach to these questions draws on Sen and Nussbaum’s ‘capabilities’ approach (Sen 1992). On this view, what matters, from a political point of view, for the assessment of advantage is not levels of welfare enjoyed, or amounts of resources owned or controlled, but rather the extent to which people are free to achieve well being, understood in terms of objective opportunities to do, and become, what they have reason to value. 8 Most people would think it would be very generous of you to act in the ways specified by the demands, but given the unreliability of generosity as a motive - especially when the sacrifices involved relate to all the comforts and pleasures of living in a more developed country - what we really want are arguments to show that you can legitimately be compelled to make the sacrifices required to meet the demands. 12 benefits for health. How do the products of carbon intensive development benefit people? In general, Knutti and Rogelj note throughout their paper that climate change is a wicked problem. The global collective action needed to tackle it (fact 11), the uncertainty about the future effects of CO2 emissions (fact 2) and about the exact size of the carbon budget (fact 8), the possibility of climate catastrophes and the geoengineering agenda they would foreground (fact 14), and the difficulty of thinking through – from a moral and policy perspective – how to balance the rights and interests of present people against the rights and interests of future people (fact 13) all combine to make climate change a problem unprecedented in the history of ethics. A number of prominent climate ethicists have reflected on this. For example, Dale Jamieson argues that our existing ethical theories are inadequate to this unprecedented problem (Jamieson 2014). And Stephen Gardiner argues that the structure of the climate problem renders it a ‘perfect moral storm’ that presents the global rich and powerful in the present generation with various temptations to moral corruption; that is, to forms of argument and conduct that enable the global rich and powerful to continue to pursue their own interests while claiming to be (and perhaps even believing that they are) promoting climate justice (Gardiner 2011).9 This could have disastrous consequences for the world’s poor, and for future people. Of particular salience here is his account of ‘intergenerational buck passing’ in climate policy-making, which amplifies fact 12: given a carbon budget, ineffective action on emissions reductions now creates a bigger emissions reductions burden for future people (Rogelj et al 2013). The temptation to pass the emissions reductions buck on to future generations may iterate down through subsequent generations, greatly enhancing the risk of climate catastrophe. And any generation in a state of climate emergency may reasonably react by burning more fossil fuels in an attempt to provide support and assistance to members of its cohort experiencing that emergency, which will then make the climate problem even worse for 9 He analyses the Kyoto Protocol in exactly these terms. 13 subsequent generations who may react in a similar way, etc. Intergenerational buck passing may, Gardiner argues, create an intergenerational arms race.10 The demandingness of what we owe to future people in the face of present and past emissions is diluted in climate policy by the use of a social discount rate in calculating the costs of climate policies. The social discount rate places considerations of the costs of climate change to many future people outside the scope of policy. It does this by specifying a certain point in time (determined by the value of the discount rate) beyond which all costs approach zero. Use of a social discount rate in future oriented policy-making is ubiquitous in economic approaches. But the very choice to use a discount rate at all is a moral choice: it represents a decision to undertake a weighing of the interests of more distant future people against those of present people and less distant future people so as to prioritise the latter categories over the former. And weighing interests in this way, regardless of the temporal location of the interest holders, is a moral undertaking (fact 13. That is not to say that all forms of weighing are morally prohibited; perhaps there are good ethical reasons for committing to some forms of discounting (for example, of the commodities that future people will possess) and for rejecting others (for example, of future persons’ well being) (Broome 2012). Furthermore, the value that is given to the discount rate is a way of representing the weight to be given to the interests of distant future people in present policy making, and so is an ethical choice in need of justification going well beyond mere reference to the present market interest rate (Broome 2012). Moral and political philosophers have been alive to these issues as economic approaches have ascended to the dominance they have presently and climate ethicists continue to resist the presentation of the discount rate as a value neutral and innocuous part of the toolkit of cost benefit analysis (Parfit 1992; Broome 1994; Ackerman 2008; Jamieson 2014; Gardiner 2011). 10 Gardiner argues that geoengineering presents significant opportunities for morally corrupt intergenerational buck passing. It enables the geoengineering generation to tell themselves that they are making a ‘morally serious choice’ by doing this instead of reducing emissions, when the reality is that the geoengineering generation will probably not have to bear any of the risks of implementing the technology, and will have increased the emissions reductions burden for subsequent generations (Gardiner 2011, 364). 14 Debates about intergenerational distributive justice in the face of climate change conceptualise the Earth’s absorptive capacity with respect to CO2 (up to the cap expressed in the carbon budget) as a good in need of fair distribution across all generations (which means, in effect, fair distribution across present and future generations, given that past emissions are unalterable). However, this way of thinking about the atmosphere has implications beyond distributive justice, for two other domains of justice that are well established in political philosophy: corrective justice, and criminal justice. The commitment central to corrective justice is: repair wrongs done. Corrective justice requires that any party suffering wrongful harm as a result of the conduct of another has a justified claim of rectification which ought to be met by the harmer; most commonly, through the provision of compensation to the victim by the harmer (Coleman 1992). Demands for compensation in the name of corrective justice are now regularly made in the intragenerational context, and are likely to proliferate as the impacts of climate change worsen (Farber 2008; Hunter and Salzman 2007). However, corrective justice can also have intergenerational scope: it can connect members of the present generation to as yet unborn future people in a relationship of liability for reparation, and this has significant consequences for what present people owe to future people given the fact of a carbon budget. Under corrective justice in the intragenerational context, an agent becomes liable for providing compensation only when what she does causes harm: prior to the causation of harm, there is no liability. However, there are good reasons to think that liability under corrective justice ought also to respond to the imposition of impermissible risk. Here, we can think of an agent imposing impermissible risk as ipso facto liable for providing the means for compensation which can be accessed by any future people for whom the risk ripens into a harm (McKinnon 2011). With respect to climate justice, this interpretation of corrective justice enables us to claim that insofar as its CO2 emissions create impermissible risks for future people, the present generation is required to make provision for the 15 compensation that will be owed to future people if the risks the present generation is imposing mature into harms for those people. Given the fact of a carbon budget, the present generation’s failure to date to radically reduce global CO2 emissions imposes impermissible risks on future people; the harmful consequences for future people of business-as-usual are well documented. In addition, and not sufficiently well noted, is the way in which the risks being imposed on future people by present people not only relate to basic human rights, but also to future people’s capacities to act ethically with respect to the people who will follow them (fact 12). By passing the CO2 emissions reduction buck to future people, we might – as Gardiner notes – blight their lives by putting them in a position wherein whatever they do, they will do wrong (Gardiner 2011: 389). There are well founded worries about how compensation schemes for climate change harms and risks could function in practice so as to distribute ‘permits to pollute’: so long as an agent is willing and able to provide for compensation for those harmed by the climate change caused by their emissions, they may continue with business as usual. Crudely, the global rich get to continue as they are.11 What these worries make clear is that any set of principles of intergenerational climate justice must contain principles that prohibit certain types and rates of emissions, and activity fit to exacerbate these emissions, regardless of the willingness and ability of the emitter to provide compensation. These prohibitions will be set by reference to the carbon budget, and the ideal distribution of emissions allowances across generations, given progression towards a zero carbon global economy in order to remain within the budget. Given the importance to the temporally extended political community of humanity of not exceeding this budget, these prohibitions have great moral significance for all generations. The domain of justice concerned with the commission of ‘public wrongs’ – that is, conduct violating standards of the greatest moral significance to any community – is criminal justice. Could philosophical theories of criminal justice be brought to bear in the context of he carbon budget? 11 These worries also apply to offsetting schemes (Hyams and Fawcett 2013). 16 The only attempt in the literature to do this is my work-in-progress on using international criminal law to address reckless conduct that creates risks of human extinction. I call this a law of ‘postericide’.12 This work develops arguments for the idea that a new international crime of postericide is a morally required response to humanity's changed circumstances in the Anthropocene, given the carbon budget. Postericide is: Intentional or reckless conduct systematically and seriously threatening the extinction – or near extinction – of humanity. International criminal law contains no precedents for the prosecution of postericide. But, I argue, the normative commitments at the heart of international criminal law commit us to revising it in ways that make it fit for human life in the Anthropocene. Here in the Anthropocene it is in our power to permanently damage or destroy conditions on Earth for all those who will live after us. Now consider the following conception of international criminal law. In an international context we are accountable to one another as human political animals. When a state fails to do what it ought to do for us qua political animals – when it fails to perform the functions according to which its existence is justified, i.e. the delivery of justice – then our shared membership of the community of human political animals generates the following responsibilities. First, a responsibility to those who are affected by their state’s abuse of its powers, or its failure to offer them protection from attack by others; that is, a responsibility to victims of international crimes. And second, a responsibility to those who commit these crimes – whether they be agents of the state, or independent agents acting in the vacuum of a failed state – to use international criminal law to 12 McKinnon, ‘Climate Change as Postericide’, Leverhulme Trust Research Fellowship 2014-16, grant number RF-2014-021/8. 17 prosecute them.13 Here, international criminal law is a declaration of our commitment as members of the community of human political animals to protect the institutional conditions we need to live well together. It is now a short (but certainly not uncontroversial) step to the conclusion that international criminal law ought to govern present conduct insofar as it creates serious and systematic extinction risks. The reason for this is we are in political community with future people. Taking seriously the idea of international criminal law as an expression of what human beings owe to one another regardless of their location in space, this body of law ought also to protect all human beings regardless of their location in time. Given the carbon budget, if groups in the presently existing temporal cohort egregiously exceed their allocations and do not make concentrated and resolute efforts to develop zero carbon energy technologies, and if they are aware of the extinction risks their conduct creates, then they are liable for postericide. Who might these groups be? Fossil fuel companies and states obstructing meaningful action on climate change are the obvious candidates. Summing up, the facts foregrounded by Knutti and Rogelj have great significance for debates about what we owe to one another, and to future people, in the name of justice. In particular, the fact of the carbon budget, and the uncertainty surrounding its value and the consequences of exceeding it, bring present CO2 emissions within the scope of pedigreed debates about justice now being extended to generate obligations to future people. These obligations are, without exception, extremely demanding; and the structure of the climate change problem presents people here and now – in this crucial moment in history (fact 6) – with many tempting opportunities to duck these obligations by continuing to emit à la business as usual (fact 3, fact 7). One way this is sometimes attempted is with spurious claims that the science does not support the assumptions forming the background against which justice based arguments are made. Another route to inaction that refers to climate science cites the substantial uncertainties about the carbon budget (fact 8) - what it is, how much 13 This line of argument draws on ideas in Luban 2004 and Duff 2010. 18 is left, etc. - as justifying political inaction with respect to local and global emissions reductions. This is clearly not justified from an ethical point of view. On the contrary - as Knutti and Rogelj insist, and for a range of reasons delivered by ethically informed reflection on the implications of depleting the carbon budget - our continuing uncertainty provides us with more, not fewer, urgent reasons to act to reduce global emissions. To end, let me reflect upon the direction of travel that philosophical thinking about justice might have to take if we deplete the carbon budget. Although there is no certainty about this (fact 2), the atmospheric lifetime of CO2 (fact 1) and its contribution to continued warming regardless of what point in history any ton of it is emitted (fact 4) means that business as usual puts future people at risk of catastrophic climate change, creating an extreme scarcity of resources necessary for survival at local, and possibly global, scales. Contemporary theories of justice, and their ancestors in the Anglo-American tradition, work with a background assumption of moderate scarcity only: few enough resources to make the fair and principled management of competition for them necessary, but not so few that such management ceases to be justified or feasible. Catastrophic climate change could change all this. Under climate catastrophe, what is required are not principles of justice but rather principles of triage. Most familiar from medical ethics, and battlefield medicine, principles of triage sort people into various categories, and state priority rules for the distribution of resources to people in different categories. In a world beyond the carbon budget, and in which climate catastrophes happen, the language of justice may be entirely misplaced. Principles of triage understood as principles to guide the allocation of extremely scarce survival resources at the macro level, and understood as distinct from principles of justice, are severely under theorised in contemporary moral and political philosophy (McKinnon 2011). In addition to owing future people compensation for harms ripening from risks we impose on them now by barrelling towards depletion of the carbon budget, it may be that we also owe them an intellectual inheritance in the form of an ethics for climate catastrophe. Acknowledgements 19 I am very grateful to Reto Knutti and Joeri Rogelj for their comments on earlier drafts of this paper. Comments made by Dominic Roser and two anonymous referees for the journal also greatly helped to improve the paper. References Adam, D. (2011), ‘Climate Change in Court’, Nature Climate Change 1, May 2011, 127-130. Ackerman, F. (2008), Can We Afford the Future? The Economics of a Warming World. London: Zed Books. Broome, J. (1994), ‘Discounting the Future’, Philosophy and Public Affairs 23(2), 128-56. Broome, J. (2012), Climate Matters. New York: W.W. Norton. Caney, S. (2005), ‘Cosmopolitan Justice, Responsibility and Global Climate Change’, Leiden Journal of International Law 18(4), 747-75. Caney, S. (2012), ‘Just Emissions’, Philosophy and Public Affairs 40(4), 255-300. Coleman, J. (1992), Risks and Wrongs. Oxford: Oxford University Press. Cowen, T. and Parfit, D. (1992), ‘Against the Social Discount Rate’. In: Laslett, P. and Fishkin, J.S. (eds.) Justice Between Age Groups and Generations. New Haven: Yale University Press. Crutzen, P. J., and E. F. Stoermer (2000). ‘The 'Anthropocene'’, Global Change Newsletter 41: 17–18. Duff, R.A. (2009), Answering for Crime: Responsibility and Liability in the Criminal Law. Oxford: Hart. Duff, R.A. (2010), ‘Authority and Responsibility in International Criminal Law’ in S. Besson and J. Tasioulas (eds), The Philosophy of International Law. Oxford: Oxford University Press. Farber, D.A. (2008), ‘The Case for Climate Compensation: Doing Justice to Climate Change Victims in a Complex World’, Utah Law Review 2, 1-36. Gardiner, S.M. (2011), A Perfect Moral Storm: The Ethical Tragedy of Climate Change, Oxford: Oxford University Press. 20 Hunter, D. and Salzman, J. (2007), ‘Negligence in the Air: The Duty of Care in Climate Change Litigation’. University of Pennsylvania Law Review 155(6), 1741- 94. Hyams, K. and Fawcett. T. (2013), ‘The Ethics of Carbon Offsetting’, Wiley Interdisciplinary Reviews: Climate Change, 4(2), 91-8. Jamieson, D. (2005), ‘Adaptation, Mitigation, and Justice’. In: Sinnott-Armstrong, W. and Howarth, R.B. (eds), Perspectives on Climate Change: Science, Economics, Politics, Ethics. Amsterdam: Elsevier. Jamieson, D. (2014), Reason in a Dark Time: Why the Struggle Against Climate Change Failed, and What It Means for our Future. Oxford: Oxford University Press. Luban, D. (2004), ‘A Theory of Crimes Against Humanity’, Yale Journal of International Law 29, 85-167. McKinnon, C. (2011), Climate Change and Future Justice: Precaution, Compensation and Triage. London: Routledge. Meyer, L. and Roser, D. (2006), ‘Distributive Justice and Climate Change: The Allocation of Emission Rights’, Analyse und Kritik 28, 223-49. Page, E. (2011), ‘Climatic Justice and the Fair Distribution of Atmospheric Burdens: A Conjunctive Account’, The Monist 94(3), 412-32. Rawls, J. (1971). A Theory of Justice. Oxford: Oxford University Press. Rawls, J. (1993), Political Liberalism. New York: Columbia University Press. Rogelj J., McCollum D.L., O'Neill B.C., Riahi K. (2013), ‘2020 emissions levels required to limit warming to below 2°C’. Nature Climate Change 3:405-412. Sen, A. (1992), Inequality Reexamined. Oxford: Oxford University Press. Shue, H. (1980), Basic Rights: Subsistence, Affluence and U.S. Foreign Policy. Princeton, N.J.: Princeton University Press. Shue, H. (1993), ‘Subsistence Emissions and Luxury Emissions’, Law and Policy 15(1), 39-59. Shue, H. (1995), ‘Avoidable Necessity: Global Warming, International Fairness, and Alternative Energy’. In: Shapiro, I. and Wagner DeCew, J. (eds) Theory and Practice: NOMOS XXXVII. New York: NYU Press, 239-64. Shue, H. (2013), ‘Climate Hope: Implementing the Exit Strategy’, Chicago Journal of International Law 13(2), 381-402. 21 Singer, P. (2002), One World: The Ethics of Globalisation. New Haven, Conn.: Yale University Press). Vanderheiden, S. (2008), Atmospheric Justice: A Political Theory of Climate Change. Oxford: Oxford University Press. 
work_j2hs42uahnd33jtyizv6p3j5sq	----	Microsoft Word - AARE 2005 Ed Ad & Soc Just.doc BAT05131 Educational Administration and Social Justice Richard Bates Deakin University Vic 3217 Australia rbates@deakin.edu.au Paper submitted to the Annual Conference of the Australian Association for Research in Education, UWS Nov-Dec 2005 Submitted April 2005 2 Abstract This paper argues that social justice is central to the pursuit of education and therefore should also be central to the practice of educational administration. Social justice in education, as elsewhere, demands both distributive justice (which remedies undeserved inequalities) and recognitional justice (which treats cultural differences with understanding and respect). But, given that cultures are always in the process of change, education is a key agency for negotiating cultural change through the exploration and negotiation of difference. Educational administration as a field can no longer escape the consideration of such issues as they are brought to the fore by the recognition of the failure of schools and school systems to ameliorate injustice in the distribution of resources and to recognise and celebrate difference as a means to social and cultural progress. We still need a model of educational administration centered around the problem of the justice and fairness of social and educational arrangements. Given the renewed interest in such issues, perhaps what was impossible twenty five years ago might now be achieved 3 Some two decades ago I called for a model of educational administration centered around ‘…the problem of the justice and fairness of…social and educational arrangements’ (Bates, 1983:39). Mine was a lonely voice, apart from that of Bill Foster (1986) and a small number of similarly marginalised scholars, and the field continued to be dominated by the ‘search for a knowledge base’ rooted in a conceptual separation of educational and administrative issues and the pursuit of a ‘value-free’ science of educational administration (see, for instance the contributors to Boyan, 1988). While voices such as Ken Strike’s (1982) were being raised around the issues of social justice in educational policy; while others such as Young (1971), Bernstein (1975), Bowles & Gintis (1976) and Bourdieu (1977) were transforming the focus of the sociology of education around the complicity of educational practices in reproducing social inequalities; while Dreeben (1968), Jackson (1968), and others were documenting the moral and social order of the classroom and its inequalities; and while others were listening to the voice of radical pedagogy directed in the service of liberation (Apple, 1982; Freire, 1970), educational administration as a field tied itself to the mast of its preferred (positivist) model of science and sailed on, refusing to be distracted by such siren voices. There were, of course, voices at the margins of the field such as those of Thom Greenfield (see Greenfield and Ribbins, 1993) and Chris Hodgkinson (1978, 1991) who were pleading for values to be placed at the heart of the administrative enterprise in education. Greenfield’s attack on the ontological reality of organizations and his insistence that organizations as human creations can be both made and remade through human agency, as well as his attempt to rescue Weber from the heroic stature (mis-) attributed to him as the champion of bureaucracy and reinstate him as the advocate of verstehen and interpretive methodology were truly significant contributions to the field. Or they could have been, had the leading figures in the field understood the significance of what he was saying. But Greenfield, while he clearly had significant concerns with structural issues such as poverty and discrimination, rejected structural analysis and failed to link his subjectivist theory of values with his broader concerns for social justice in any systematic way (see Greenfield and Ribbins, 1993; Bates, 2003a). Hodkinson, of course, develops a convincing case for the place of values in administration (and educational administration in particular). But his position, like that of Greenfield, is subjectivist and essentially relativist. While articulating a formal hierarchy of types of value, Hodgkinson continues to insist that ‘….values do not exist in the world. They are utterly phenomenological, subjective, facts of inner and personal experience, ultimately only susceptible of location within an individual cranium’ (1983:31). Such a position disallows any serious consideration of the social sources of value and the role of the social in the construction of the self (see Taylor, 1989, 1991). Nor does it allow a Weberian analysis of the ways in which values are systematised through organisational and cultural structures (see 4 Samier, 2002). The result, again, is that while values are placed centrally in the study of administration they fail to be linked in any systematic way to issues of social formation or social justice. Indeed, this lacuna is common to most of the discussions of the ethics of educational administration through the decades of the 1980’s and 1990’s. Indeed, such a perspective is still central to the field (Beckner, 2004). Burke’s comment on traditional moral theorizing in public administration is widely applicable to this period of moral theorizing in educational administration which …simply presents, case-like, the range of practical problems and then permits the morally perplexed free reign to pick and choose from a ‘cafeteria of moral principles’ in which competing moral theories end up being treated as equally valid, and since they often yield incompatible solutions they render morality meaningless. (Burke, 1983: 1112 quoted in Samier, 203:75) The result is clearly the ‘conflicts, confusions and contradictions’ that Dempster and his colleagues discovered among principals in their study of ethical decision-making (Dempster et al 2004). However, Dempster et al also fail to make the link between ethical decision making and social justice by suggesting that what principals (and by extension other educational administrators) need is a better ‘general understanding of ethical positions’ (p461). William Greenfield (2004) in his comprehensive discussion of ‘Moral leadership in schools’ provides a broad discussion of various contributions to the placing of values in theories of educational administration. Arguing that ‘…at the very center of the leadership relationship is an essential moral consideration: leading and teaching to what ends and by what means?’ (Greenfield, 2004:174). Noting the growing interest in ‘studying values, ethics and the moral dimensions of educational leadership’ (p174) he carefully describes the various sets of principles advocated as the bases for ethical leadership. In particular he suggests that Schrag’s (1979) four principles foreshadow much of the discussion over the subsequent twenty years. These principles are 1. A moral agent must base his/her decisions on principles that apply to classes of situations, not on a whim of the moment or a predilection for one particular kind of situation… 2. A moral agent should consider the welfare and interests of all who stand to be affected by his/her decision or action… 3. A moral agent has the obligation to base his/her decision on the most complete information relative to the decision that he/she can obtain 4. A conscientious moral agent’s moral judgements are prescriptive [and] answer the question: What ought I to do? (Schrag, 1979: 208-209 quoted in Greenfield 2004:178) Greenfield goes on to show, through his survey of the literature, how these themes are implicit in much of the subsequent debate. Notably, however, 5 Burke’s stricture quoted above is equally applicable to this literature, devoid as it is of substantive content. Bottery (1992) is quoted by Greenfield as a more recent example of similar discourse. His six questions to be asked by school leaders are 1. Does the management of the school promote personal growth? 2. Does it treat people as ends in themselves or as means to ends? 3. Does it foster a rationality which is not only tolerant of criticism, but actually sees it as an essential part of school and society? 4. Does it repudiate the view of human beings as resources to be manipulated, and instead see them as resourceful humans? 5. Does it create an ethos where measures of democracy can be introduced and replicated within the society at large? 6. Does it foster an appreciation of the place of individuals as citizens within their own communities, states and world? (Bottery, 1992 quoted in Greenfield 2004:180) Here, the questions do at least have some content in that they presuppose a commitment to rationality, autonomy, democracy and community. However, even here the links to social justice are not elaborated. Only two of the theorists cited by Greenfield make such a link. Foster (1986) is quoted as advocating a critical humanist position committed to ‘…the idea that the public school administrator has a special duty to improve the institution of schooling so that it is more just and equitable’ (Greenfield, 2004:184). Starratt (1996) is also quoted as advocating an approach to morality that ‘…involves the total person as a human being; it involves the human person living in a community of other moral agents’ (quoted in Greenfield:181). Oddly enough this link between moral behaviour and community is not developed despite the work of, for instance, Strike (1999), Furman (2002) Furman and Starratt (2002), Sergiovanni (1994) or Goodlad (1996). And even where community is invoked as the context of moral leadership, community is defined as ‘the school and its community’, rather than the larger definition of community envisaged by Starratt (2003). However, despite this small progress, the notion of community is set aside in Greenfield’s summary of future directions for the field which are to be focused on: 1. Social relations among school leaders and others 2. Meanings and perspectives underlying school leaders in their relations with others 3. The espoused purposes of school leaders’ actions and orientations towards others 4. The authenticity of school leaders relations with others 5. The emotional dimensions of school leadership 6. The commitments of school leaders (Greenfield, 2004:191) 6 There is nothing here about the links between ethics, community and social justice, but a retreat into the subjective and intersubjective purposes, values and emotions of educational leaders as individuals. This orientation seems to also contextualise the work of the UCEA Center for the Study of Leadership and Ethics which Greenfield so much admires (2004: 174-5). But surely this introspective orientation is a mistake, for, as Furman (2003) makes clear there are significant relationships between ethical leadership, the idea of community, and the notion of social justice. These are particularly well spelt out in Furman and Shields (2003) where it is argued that …there is an essential and dynamic interplay both within and between these concepts that provides a sort of check and balance…democratic processes permit the construction of what social justice means. …social justice, on the other hand, suggests some essential underlying values and offers a construction of moral purpose that provides the compass for common good. (Furman & Shields, 2003:18) It is this idea of the common good that sets out the foundation for approaches to social justice. Or, rather, it is observations of social injustice that set the scene for considerations of social justice and common good. Furman argues, for instance, that Social justice has recently acquired a new intensity and urgency in education for several reasons, including the growing diversity of school populations, … the increasing documentation of the achievement and economic gaps between mainstream and minoritized children,…and the proliferation of analyses of social injustice as played out in schools, including the injustices that may arise from the current policy environment of high-stakes assessment and accountability. (Furman, 2003:5) Similarly, Larson and Murtadha’s (2002) review of the literature on educational leadership and social justice calls for ‘researchers in educational administration who believe that injustice in our schools and communities is neither natural nor inevitable [to] coalesce under an umbrella of inquiry called leadership for social justice’ (2002:135). Such a commitment however, inevitably involves political engagement in a field which, while calling for a commitment to moral values, has always seen administration as a substitute for politics (Bates, 1983). The significance of such commitment is outlined by, for instance, Nieto in her review of public education in the United States where she calls for a renewed commitment to overcoming the injustices faced by minorities in the face of ‘the re-emergence of extraordinarily segregated schools, the almost total dismantling of bilingual education and the continuing vociferous backlash against multicultural education’ (Nieto, 2005: 16). 7 Various such injustices have been explored in the literature on education (though not so widely in the literature on educational administration). Injustices due to poverty (which is often a proxy for various marginalised communities and groups) were, for example, explored by Connell (1994). Arguing that ‘poverty’ is a catch-all concept that disguises radically different situations, Connell show how in industrial countries poverty is a result of maldistribution of resources and wealth, while in the third world poverty is also the result of overall lack of resources and wealth. Moreover, even in wealthy industrialised countries poverty is not static. People move in and out of poverty through the continual restructuring of labour. Again, economic deprivation is shared by people who are quite different in other respects: ethnicity, geography, gender. Yet again, individual poverty may be modified by access to public resources such as education, health services, public libraries etc. This complex of factors makes poverty difficult to address through ‘one size fits all’ programs. This is particularly the case with ‘compensatory education’ designed to make up for the ‘cultural deficit’ of poor communities. Here Connell shows that the presumption that ‘the poor are quite unlike us’ is wrong. For instance, while the rate of poverty in the US in any one year might be between eleven and fifteen percent, over a twenty year period some forty percent of the population may move in and out of poverty (Connell, 1994 quoting Devine and Wright, 1993). ‘We should, then, expect those in poverty at any one time to have a lot in common with the broader working class, including their relations with schools’ (Connell, 1994:131). Such relationships with schools are heavily constrained by power and violence, especially with regard to the urban poor. Educators are well aware of this fact. It is built into their daily lives by history and convention, though we would prefer to ignore this aspect of our lives. Moreover, Connell argues, disdvantage is structurally related to advantage and the redress of inequalities and injustice in education as elsewhere will involve conflict. Disadvantage is always produced through mechanisms that also produce advantage. The institutions that do this are generally defended by their beneficiaries. The beneficiaries of the current educational order are, broadly speaking, the groups with greater economic and institutional power, greater access to the means of persuasion, and the best representation in government and in professions. No one should imagine that educational change in the interests of the poor can be conflict-free. (Connell, 1994:144) And, as we know, conflict over curriculum, pedagogy and assessment is endemic in public discussions of education. But such issues are largely sidestepped in discussions of educational administration. For instance, while Freire’s work on ‘The Pedagogy of the Oppressed’ (1970) has been widely influential in discussions over curriculum and pedagogy, it has been virtually ignored in educational administration. As Larson and Murthada observe while ‘Freire’s treatise on educating oppressed populations has been widely used in 8 curriculum theory…leadership theorists have largely overlooked it. Nevertheless, Freire’s arguments are as relevant to leadership as they are to teaching and learning. (2002:146) In an analysis quite similar to Connell’s and Freire’s, Larson and Murtadha argue that administrative power is used to exclude minority participation. …[M]any well-intentioned leaders maintain institutionalised inequity because they are committed to hierarchical logics that not only fail to question established norms but keep impoverished citizens out of decision making. (Larson & Murtadha, 2002:146) Reasonably enough, such marginalised communities develop a lack of trust in organizations and their leaders. But the result is, ironically, that such mistrust often becomes regarded as a deficiency of the mariginalised and a cause of their marginalisation. Because poor and minority populations have learned to mistrust many public leaders, well-intentioned school leaders often have difficulty in earning their trust and cooperation. Freire explains that the lack of trust poor communities show to those who lead public institutions can be interpreted as an ‘inherent defect’ in poor people, ‘evidence of their intrinsic deficiency’. (Larson & Murtadha, 2002:147) Ironically, such a conclusion can encourage leaders to engage further in those very authoritarian mechanisms of control which alienate the poor in the first place. Contemporary solutions to this dilemma point in two quite different directions: one is in the direction of ‘choice’ and the other the direction of ‘one size fits all’. The issue of choice is very much connected to the idea of school as community where community is seen as a group of similar minded people. Sergiovanni’s (1992) ‘virtuous school’ would seem to be typical of this model. Here the members of the school and its community are held together by shared values and commitments. The heart of the school as a moral community is its covenant of shared values. This covenant provides a basis for determining its morality… The virtuous school subscribes to and uses these moralities as the basis for deciding what its values are and how they will be pursued. (Sergiovanni, 1992:108) But this is a solution that is potentially corrosive and divisive as far as the wider society is concerned. Indeed it is capable of dissolving society in the solvent of Balkanised ‘choice’ for, as Peshkin observes as a result of his case study of such a school 9 The academy epitomizes the case of a community successfully projecting its idiosyncratic outlook onto its school. More than just a community school, however, the academy is a ‘communal’ institution… Communal describes a community whose strong commitment to its own welfare inevitably places it in conflict with other communities that do not accept its doctrinal foundation. A communal school serves an internally integrative or community-maintenance function. That is, it simultaneously links believers together and separates them from non- believers. In its defensive capacity, the academy shields its students and beliefs from competitors by promoting dichotomies not only of we and they, but also of right and wrong. We follow God’s truth in God’s preferred institution; they are the unfortunates of Satan’s dark, unrighteous world. (Peshkin, 1986:282) To be fair, Sergiovanni acknowledges that for large public schools are constituted by pupils from diverse communities ‘There is no easy answer to the difficult question of covenant building’ (1992:109). But in our increasingly diverse societies this is precisely the issue that we face. ‘Choice’ and Balkanisation where ‘virtuous’ schools and their communities glare at each other from behind circled wagons would not seem to be an enticing future. The second response to the problem of diversity is that of ‘one size fits all’ where a ‘community standard’ is set politically by the state as a presumed adjudication of desired values and performance, and where individual communities and schools are held accountable for the achievement of such standards and publicly praised or vilified accordingly. Much educational policy in Western societies is currently driven by such an approach. A typical (if extreme) version is that of the ‘No Child Left Behind Act’ (2002) in the USA. Such moves have some initially attractive features. As Cambron-McCabe & McCarthy (undated) suggest Regardless of one’s position on the school accountability movement, it has focused attention on the widening achievement gap among students and related equity concerns. (p9-10) The intention is to make schools (and especially public schools) more ‘effective’, to remedy the underperformance of under-performing schools, students and communities. While this may be a laudable objective the mechanisms employed may be counter-productive. For instance, the School Effectiveness Movement, which provides some of the justification for the NCLB legislation, is a widespread international phenomenon and a particularly reductionist attempt to lift school performance. Managerially driven, this movement is devoted to raising scores on standardised tests as a mechanism for improving both individual and school performance. ‘School effect’ is isolated as a variable with all environmental 10 variables stripped away statistically. The result is quite the opposite of the complex interaction of historically situated social, cultural, school and community characteristics that Thomson (2003) and Packer (2001) present us with. Community is displaced by economy: a functionalist account of ‘performance’ and the strategic action required to promote performance in a field of uncertainty and competition takes centre stage. But this functionalist account of schooling, as with most functionalist accounts, misrepresents the reality of human interaction in schools and between schools and their communities. It is an account stripped bare of the humanity and complexity of human interaction, one which reduces the person to a simulacrum and sees the relationship between schools and their communities solely in terms of the support or inhibition of ‘performance’ (See Bates, 2004). Indeed, there is growing evidence that, despite the improvements claimed by some schools and school districts, for many groups, processes of exclusion have increased and engagement with learning has decreased, thus producing subsequent declines in performance and exaggerating the differences in performance between advantaged and disadvantaged groups (Cobb & Glass 1999,Fiske & Ladd 2000, Foster 2002, Gilborn and Merza 2000, McNeil, 2000, Strike, 2002, Fuller 2003, Wrigley, 2003, 2004, Black and Wiliam, 2004). The fundamental problem with the ‘one size fits all’ approach is that it decontextualises learning for many students, decoupling it from the worlds in which they live. Not only does the focus on summative assessment linked to high stakes rewards and recriminations inhibit the possibility of richer learning for students, learning contextualised within their history and the possibilities of its reconstruction, it also prevents schools accommodating to the variety of needs brought to the school by its students. The inherent conflict between these two approaches produces significant difficulties for schools and school districts, caught as they are between official demands for standardised performance and policy initiatives directed towards localisation and choice (Fuller, 2003, Hands 2003). As Hands suggests, such decontextualisation destroys any possibility of the creation of community in diverse societies. Along with increasing globalisation over the past several decades, societies have become more pluralistic. Paradoxically, the response to globalisation and the resultant diversity has narrowed many schools’ curricular foci. In Canada and the United States of America, for example, schools have moved toward a unified, single concept of what students should know and value (Shapiro, Sewell & DuCette, 1992: Strike, 2002). Accordingly, a pluralistic approach to education, which recognises and accommodates the needs of a diverse student population, has fallen by the wayside (Shapiro et al, 1992). Within such 11 narrowed educational parameters, administrators are challenged and often unable to accommodate the needs of the various, and increasingly diverse groups of individuals their schools serve. Schools are consequently unable to provide a sense of community (Noddings, 1992; Strike, 2002). (Hands, 2003:123) So how are we to conceive of social justice in such a situation and how can such a conception inform the work of educational administrators? One helpful way is that proposed by Fraser (1997). She suggests that there are two kinds of social justice, one concerned with redistribution and the other with recognition. The issue of redistribution is concerned, pace Rawls (1972), with the issue of redressing undeserved inequalities in wealth, opportunity, access to public services etc. Major concerns here include economic concerns over • Exploitation (having the fruits of one’s labour appropriated for the benefit of others) • Economic marginalisation (being confined to undesirable, poorly paid work or having access to none) • Deprivation (being denied an adequate standard of material living) (Fraser, 1997:13) The general principle of distributive justice is easily understandable in education where gross inequalities in the distribution of such resources are observable and well documented (see for instance Kozol, 1991 for a searing description of such inequalities). One version of distributive justice therefore advocates the equalisation of resources available to all students and schools. The stronger, more Rawlsian, version is to advocate that more than equal resources ought to be allocated to those who suffer from greater disadvantages (be they physical, psychological, cultural, geographic etc). These are easily understood arguments and are publicly rehearsed frequently. I shall not discuss them further. Recognition as a foundation of social justice, is, however, a less well known principle. Here concerns are more cultural than economic, in that cultural justice would involve a positive affirmation of the cultural practices of oppressed groups is required. Fraser suggests that cultural justice involves a principle of recognition that seeks to redress • Cultural domination (being subjected to patterns of interpretation and communication that are associated with another culture and are alien and/or hostile to one’s own) • Non-recognition (being rendered invisible by means of…authoritative representational, communicative, and interpretative practices…) 12 • Disrespect (being routinely maligned or disparaged in stereotypic public cultural representations and/or in everyday life situations) (Fraser, 1997:14) Such principles have profound implications for the construction of curricula, the practice of pedagogies and the methodologies of assessment. And, as curriculum, pedagogy and assessment practices are controlled by processes of educational administration, for educational administration also. In a recent special issue of Educational Administration Quarterly (Marshall, 2004) attempts are made to address such issues within the context of the preparation of educational administrators. The issue ‘….places social justice at the center, so concerns about bureaucracy, hierarchy, efficiency, and even instruction and achievement are secondary’ (p3). Declaring, along with Parker & Shapiro (1992) that ‘there has been very little systematically and formally taught in the areas of race, gender, ethnicity, social class and other areas of difference throughout the entire educational administration curriculum’ (p5), Marshall argues for ‘...a vision of multicultural and multiracial democracy that goes beyond mere tolerance’ (Marshall, 2004:6). Here Marshall begins to address the central problem for twentieth century societies: that of constructing harmony from diversity. As Gray (2000) points out, while a liberal consensus over values might possibly have been reached in traditional societies (though even this is somewhat doubtful) a single system of value is no longer possible. As a consequence of mass migration, new technologies of communication and continued cultural experimentation, nearly all societies today contain several ways of life, with many people belonging to more than one. The liberal ideal of toleration which looks to a rational consensus on the best way of life was born in societies divided on the claims to a single way of life. It cannot show us how to live together in societies that harbour many ways of life. (Gray, 2000:1-2) One solution to this problem, as Touraine (2000) points out, is an authoritarian imposition of particular values through an appeal to an ideal of community and tradition, usually rooted in ethnicity, nationalism or religion. Such authoritarian regimes can have disastrous consequences such as ethnic or religious ‘cleansing’. Even where such authoritarian regimes are imposed by states claiming legitimacy through a ‘democratic’ mandate of ‘fifty per cent plus one’ of the population, and where ‘tolerance’ of other cultures and values is appealed to, the likelihood of marginalisation, exclusion and vilification of minorities is quite high. One alternative to these scenarios is pointed to by Touraine who argues that there is a contemporary temptation to abandon such conflicts of values to ‘the market’. But here the difficulty is that markets are not structures of social action guided by culture and values but rather fields of strategic action which 13 are designed around risk and competitive advantage under conditions of uncertainty. Gray’s solution is the building of institutions within which multiple values can co-exist: the project of modus vivendi. The aim of modus vivendi cannot be to still the conflict of values. It is to reconcile individuals and ways of life honouring conflicting values to a life in common. We do not need common values in order to live together in peace. We need common institutions in which many forms of life can coexist. (Gray, 2000: 5-6) Schools are clearly such institutions. But this does not mean that all ways of life and all kinds of behaviour are acceptable. It means, in reality, that all ways of life are continuously held up to scrutiny and evaluation. Moreover, living alongside each other in such institutional contexts allows also for the process of cultural ‘hybridization’ that Rizvi (1997), among others, points to as a certain consequence of our increasing proximity. Touraine makes a similar point when he observes that ‘…cultures are not, at least in the modern world in which we live, separate and self-contained entities, but modes of managing change as well as systems of order’ (Touraine, 2000,177) As a result of the changing nature of cultures, their internal conflict and reorganisation and their hybridisation, some quite radical alterations in the principles that govern social (and therefore, educational) life are required. Far from appeals to public order, the market, or traditional ways of life, the only possible universalistic ethic upon which social organisation can be based is that of enhanced communication between individuals. Touraine puts it like this: The call for freedom to build a personal life is the only universalist principle that does not impose one form of social organisation and cultural practices. It is not reducible to laissez-faire economics or to pure tolerance, first, because it demands respect for the freedom of all individuals and therefore a rejection of exclusion, and secondly because it demands that any reference to a cultural identity be legitimised in terms of the freedom and equality of all, and not by appeal to a social order, a tradition or the requirements of public order. (Touraine, 2000: 167) The only possible basis for an institutional order that will allow us to live together with our differences is, therefore, a fundamental respect for the autonomy of the individual upon which the economic capabilities argued for by Sen(1992,1999) and the moral capabilities argued for by Nussbaum (2000) can be built. Quite explicitly it is important to assert 14 …that all individuals have a right to freedom and equality, and that there are therefore limits that cannot be transgressed by any government or any code of law. Those limits relate both to cultural rights such as the rights of women and to political rights such as freedom of expression. This position is threatened both by those who would reduce society to the status of a market and by those who want to transform it into a community. (Touraine, 2000: 168) The moral basis of the school as an institution must, then, be a defence of the individual rights of all pupils to freedom and equality, and to cultural, political and economic rights to the development of those capabilities through which they can create their selves and contribute to the wider society (Bates, 2004). This moral basis cannot be established in any school that practices exclusion, nor in any school that fails to provide the basis for communication between individuals pursuing diverse and defensible ways of life. The role of the school then is to protect the individual rights of all pupils and provide for communicative action between the differing ways of life that they value or could come to value, within the context of the school. This implies that the instrumental processes of the school need to be matched with normative processes. These are unlikely to be achieved through current conceptions of the school as a performative agency related principally to the interests of economic organizations. They are more likely to be achieved by schools which build into their practices activities that help form the capacity to reach agreement across boundaries of difference. Nixon and Ranson (1997) argue just this position in response to increasing cultural diversity and the breakdown of cultural certainty within previously confident cultures. In current circumstances, they suggest, the certain consensus of cultures is less obvious than cultural discord. The current sense of cultural fragmentation is widely documented… A prevailing image … is of the compression of cultures. Things formerly held apart are now brought into contact and juxtaposition. Cultures pile on top of one another in heaps without obvious organising principles. There is too much culture to handle and organize into a coherent system of belief systems, means of orientation and practical knowledge. The image of fragmentation presented here is not of culture as something singular and monolithic breaking up into fragments, but of cultures caught in a multiplicity of discordant clashes. (Nixon and Ranson, 1997:208) This image is, for some, an image of despair. Nixon and Ranson however argue quite the opposite for, … as long as there is consensus on issues of value something like effective agreement can be achieved on that basis. But once that consensus has broken down, attempts to build agreement on anything 15 other than a full recognition of difference is doomed to failure. The only hope is to rebuild agreement from the bottom up, so that values can be ‘rediscovered’ through the search for agreement. (Nixon and Ranson 1997:208) The search for agreement through deliberation which acknowledges different values is central to such rediscovery and … the quality of any agreement is dependent not only upon its purposefulness, in respect of the action(s) to which it gives rise, but also upon its inclusiveness, in respect of the deliberative processes that it involves…[D]eliberation is not simply discussion oriented towards action. It is, crucially, a communicative process that actively seeks to engage with values and recognise different value positions…. The point here is not to deny difference, but to ground the recognition of difference in a moral project that holds good across cultural boundaries. (Nixon & Ranson 1997:200-201 itals added) This presents a problem for existing institutions including schools, in that they have an ineluctable tendency towards unification and unitary systems of action and belief. As Douglas (1986) suggests ‘ while the moral project may be one of integration through the recognition of difference, the institutional drive is always towards ‘sameness’ based upon polarisation and exclusion’ (in Nixon and Ranson 1997: 203). Schools are clearly continuously subject to such pressures for conformity through pressures on curriculum, pedagogy and assessment practices. Their moral purpose, in the contemporary world, inheres in their resistance to similarity and exclusion as procedures through which they operate. As Nixon and Ranson suggest The quest for agreement as integrative action is the search for a discourse maintained across the boundaries. It is not an attempt to create a further all-embracing ‘sameness’; but, through imaginative grasp, to hold the differences in tension. It is the urge to argue beyond the point at which differences divide; to love beyond the point at which loyalties define the limits of loyalty; to teach beyond the point at which the normative benchmarks of achievement place a ceiling on student attainment. Ironically, only a culture fragmented by its own multiple compressions and complexities can offer this unique opportunity to learn beyond limits. (Nixon & Ranson 1997:209) Conclusion The conclusion of this argument is that social justice is central to the pursuit of education and therefore should also be central to the practice of educational administration. Moreover, neither administration nor education can be 16 properly practiced through a technical orientation to principles and procedure. At the heart of the educational process is the issue of values. Moreover, the condition of the contemporary world within and between societies exemplifies cultural, social, economic, ethnic, religious, geographic differences as well as those of gender, disability and sexuality. Many of these differences are currently structured, through institutional and political processes, in ways that instantiate advantage and disadvantage. Social justice in education, as elsewhere, demands both distributive justice (which remedies undeserved inequalities) and recognitional justice (which treats cultural differences with understanding and respect). But, given that cultures are always in the process of change, education is a key agency for negotiating cultural change through the exploration and negotiation of difference. Educational administration as a field can no longer escape the consideration of such issues as they are brought to the fore by the recognition of the failure of schools and school systems to ameliorate injustice in the distribution of resources and to recognise and celebrate difference as a means to social and cultural progress. We still need a model of educational administration centered around the problem of the justice and fairness of social and educational arrangements. Given the renewed interest in such issues, perhaps what was impossible twenty five years ago might now be achieved for, as Connell declared back then The education we are speaking of is plainly more than a mere reflection of existing social life; it bears on its reconstitution… Education has fundamental connections with the idea of human emancipation, though it is constantly in danger of being captured for other interests. In a society disfigured by class exploitation, sexual and racial oppression, and in chronic danger of war and environmental destruction, the only education worth the name is one that forms people capable of taking part in their own liberation. (Connell, 1982:207-8) References Apple, M (1982) Education and Power. Boston. Routledge Bates, R (1983) Educational Administration and the Management of Knowledge. Geelong. Australia. Deakin University Press Bates, R (2003a) ‘The Bird that Sets Itself on Fire’ pp 211-235 in R Macmillan (ed) Questioning Leadership: the Greenfield Legacy. London, Ontario. Althouse Press. Bates, R (2003b) Can we live together? The Ethics of Leadership and the Learning Community. Paper presented to the annual conference of the British Educational Leadership, Management and Administration Society. Milton Keynes. October. 17 Bates, R (2004) A Socially Critical View of Public Education. Paper presented to the Annual Conference of the European Conference on Educational Research. Crete. September. Bates, R (2005) Towards a Global Curriculum Arts and Humanities in Higher Education 4(1) 95-109 Beckner, W (2004) Ethics for Educational Leaders. Boston. Allyn & Bacon Begley, P & O Johansson (eds) (2003) The Ethical Dimensions of School Leadership. Dortrecht. Kluwer Academic. Bernstein, B (1975) Class, Codes and Control Vol 3: Towards a Theory of Educational Transmission. London. Routledge. Black, P & D Wiliam (2002) The Formative Purpose. Ch2 in M Wilson (ed) Toward Coherence Between Classroom Assessment and Accountability. Chicago. Chicago University Press. Bourdieu, P & J Passeron (1977) Reproduction in Education, Society and Culture. Sage. London. Bowles, S & Gintis, H (1976) Schooling in Capitalist America. London. Routledge. Boyan, N (ed) (1988) Handbook of Research in Educational Administration. New York. Longman. Cambron-McCabe, N & M McCarthy (undated) Challenges Confronting the Preparation and Development of School Leaders: Implications for Social Justice. wwwleadershipforsocialjustice.org. Downloaded 28.03.05 Cobb, C & G Glass (1999) Ethnic segregation in Arizona Charter Schools. Analysis Archives 7(1) Connell, R., D Ashenden, S Kessler & G Dowsett (1982) Making the Difference: Schools, Families and Social Division Sydney. Allen & Unwin Connell, R (1994) Poverty and Education. Harvard Education Review 64(2) Dempster, N L Carter, M Freakley and L Parry (2004) Conflicts, confusions and contradictions in principals ethical decision-making. Journal of Educational Administration 42(4) 450-461 Dreeben, R (1968) On What is Learned in School. Reading.MA Addison Wesley. Fiskes, E & H Ladd (2000) When Schools Compete: A Cautionary Tale. Washington. Brookings Institute. 18 Foster, S (2002) School Choice and Social Injustice Journal of Philosophy of Education 36(2) 291-308 Foster, W (1986) Paradigms and Promises. Buffalo. NY Prometheus Fraser, N (1977) Justice Interruptus. London. Routledge. Freire, P (1970) Pedagogy of the Oppressed. New York. Continuum. Fuller, B (2003) Education Policy under Cultural Pluralism Education Researcher 32(9) 15-24 Furman, G (ed) (2002) School as Community. Albany NY. New York University Press. Furman, G (2003) Moral Leadership and the Ethic of Community. Values and Ethics in Educational Administration 2(1) 1-7. Furman, G, & C Sheilds (2003) How can educational leaders promote and support social justice and democratic community in schools? Paper presented to the American Educational Research Association. Chicago. April. Furman G & R Starratt (2002) Leadership for democratic community in schools in J Murphy (ed) The Educational Leadership Challenge. Chicago. Chicago University Press. Gewirtz, S (2002) The Mangerial School London. Routledge Gillborn, D and S Mirza (2000) Educational Inequality: Mapping Race, Class and Gender www.ofsted.gov.uk Goodlad, J (1998) Democracy, Education and Community in R Soder (ed) Democracy, Education and Schools. San Francisco. Jossey Bass. Gray, John (2000) The Two Faces of Liberalism. Cambridge. Polity Press. Greenfield T & P Ribbins (1993) Greenfield on Educational Administration. London. Routledge Hands, C (2003) Creating Community Leading & Managing 9(2) 123-128 Hodgkinson, C (1991) Educational Leadership: The Moral Art. Albany NY SUNY Press Hodgkinson, C (1978) Towards a Philosophy of Administration Oxford Basil Blackwell Jackson, P (1968) Life in Classrooms New York. Holt Rinehart Winston Kozol, J (1991) Savage Inequalities. New York. Crown 19 Larson, C & K Murtadha (2002) Leadership fpr Social Justice pp 134-161 in J Murphy (ed) The Educational Leadership Challenge: Redefining Leadership for the 21st Century. Chicago. Chicago University Press Marshall, C (ed) (2004) Educational Administration Quarterly 40(1) McNeill, L (2000) Contradictions of School Reform. New York. Routledge Nieto, S (2005) Public Education in the Twentieth Century and Beyond. Harvard Education Review 75(1) 1-23 Nixon J & Ranson, S (1997) Theorising ‘Agreement’: the moral bases of the emergent professionalism within the new management of education. Discourse 18(2) 197-214 Nussbaum, M (2000) Women and Human Development. New York. Cambridge University Press Packer, M (2001) Changing Classes: School Reform and the New Economy Cambridge. Cambridge University Press Parker, L & J Shapiro (1992) Where is the discussion of diversity in educational administration programs? Journal of School Leadership 2 (7-23) Peshkin, A (1986) God’s Choice Chicago. Chicago University Press Rawls, J (1971) A Theory of Justice Oxford. Clarendon Press Rizvi, F (1997) Beyond the East-West Divide: Education and the Dynamics of Australia-Asia Relations. Australian Educational Researcher 24(1) 13-26. Samier, E (2002) Weber on Education and its Administration Educational Management and Administration 30(1) 27-45 Samier, E (ed) (2003) Ethical Foundations for Educational Administration London Routledge Sen, A (1992) Inequality Re-examined. Cambridge Va. Harvard University Press. Sen, A (1999) Development as Freedom. Oxford. Oxford University Press. Sergiovanni, T (1992) Moral Leadership San Francisco. Jossey-Bass. Sergiovanni, T (1994) Building Community in Schools San Francisco. Jossey- Bass Starratt, R (2003) Centering Educational Administration London. Lawrence Erlbaum Associates 20 Strike, K (1982) Educational Policy and the Just Society Urbana. University of Illinois Press Strike, K (1999) Can Schools be Communities? Educational Administration Quarterly 35(1) 46-70 Taylor, C (1989) Sources of the Self Cambridge MA. Harvard University Press Taylor, C (1991) The Malaise of Modernity Concord, Ontario. Anansi Press Thomson, P (2003) Schooling the Rustbelt Kids. Sydney. Allen & Unwin Touraine, A (2000) Can We Live Together? Stanford. Stanford University Press. Wrigley, T (2003) Is ‘school effectiveness’ anti-democratic? British Journal of Educational Studies 51(2) 89-112 Wrigley, T (2004) ‘School Effectiveness’: the problem of Reductionism British Educational Research Journal 30(2) 227-244 Young, M (ed) (1971) Knowledge and Control London. Collier Macmillan. 
work_j2us6stctrc6fkp73kjem5i5ta	----	S2398772320000264jra 111..116 SYMPOSIUM ON ART, AESTHETICS, AND INTERNATIONAL JUSTICE MEMORIALIZING DISSENT: JUSTICE PAL IN TOKYO Mark A. Drumbl* Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grass- roots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be sure, but they cannot micromanage the outreach of others. And the outreach of others may look and sound strikingly different than that curated and manicured by courts. This essay presents one such othered outreach initiative: a memorial in Tokyo dedicated to Justice Radhabinod Pal of India, who authored a vehement dissent at the International Military Tribunal for the Far East (IMTFE). The IMTFE was established in 1946 to prosecute Japan’s leadership in the aftermath of the Second World War. Pal would have acquitted each defendant. This essay describes Justice Pal’s legal philosophy, situates his place in the currents of international law, and reflects on the broader role of memorials as discursive sites. Justice Pal’s Arc of Life Pal’s journey is remarkable in that he hailed from a poor rural family yet became a distinguished lecturer at India’s premier institution of postgraduate education.1 Pal was born on January 27, 1886, in the small village of Salimpur (Kushtia District, Bengal) in British-occupied India. Today, this village is part of Bangladesh. Pal was initially educated in local schools and later studied mathematics and law at Presidency College Calcutta (now Kolkata) and the Law College of the University of Calcutta. Pal was appointed to the IMTFE after it had begun its work to address a striking imbalance in the number of Asian judges. In November 1948, the IMTFE sentenced seven convicts to death, sixteen to life imprisonment, and two to fixed prison terms (twenty years and seven years). Pal alone would have acquitted each defendant. Pal led a rich life in international law following his iconic dissent. From 1952 until 1966, he was a member of the UN International Law Commission (ILC). He became Chair in 1958. Pal died on January 10, 1967, at the age of 80. He had fourteen children. * Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University. I thank Marina Aksenova, Karima Bennoune, Maggie Gardner, and Shannon Fyfe for helpful input on earlier versions of this text. 1 Milinda Banerjee, Does International Criminal Justice Require a Sovereign? Historicising Radhabinod Pal’s Tokyo Judgment in Light of His “Indian” Legal Philosophy, 21 FICHL PUBLICATION SERIES 67, 72, 76 (2014). doi:10.1017/aju.2020.26 © Mark A. Drumbl 2020. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited. 111 https://www.legal-tools.org/doc/f52001/pdf/ https://www.legal-tools.org/doc/f52001/pdf/ http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ B.S. Chimni, writing in the American Journal of International Law in 2018, worried that “the non-availability of the state practice of third world countries, and also the paucity of scholarly writings on the subject, allows the iden- tification of rules of [customary international law] primarily on the basis of state practice of advanced capitalist nations and the opinions of their scholars.”2 Pal was an early spark behind the au courant conversation about whether international law truly is international.3 His work product contributed to postcolonial legal theory and unmasked the embeddedness of racism within the international legal order. Pal also evidences Anthea Roberts’s observation that, when it comes to approaching international law, “each of us brings our biography into play.”4 Pal’s Dissent In contrast to the International Military Tribunal at Nuremberg, several of the eleven IMTFE judges submitted separate concurring and dissenting opinions. Sir William Webb, the Australian judge who presided over the trial, posited that in sentencing the convicts the IMTFE should have taken into account that the Japanese Emperor had not been indicted. The French judge lamented procedural shortcomings. The Dutch judge, somewhat like Pal, concluded that no conspiracy existed and accordingly would have found five of the defendants innocent. The Canadian judge signed onto the majority but in private communications with his government criticized the IMTFE.5 Delfin Jaranilla, the Filipino judge who had personally survived the Bataan death march of 1942, wanted to punish more harshly. Together with the Chinese judge (who joined the majority), Judge Jaranilla shared some of Pal’s concerns with imperialism and colonialism, but saw Japan’s participation in aggressive war and other crimes as utterly condemnable. He—along with the rest of the majority—emphasized the atrocities perpetrated by Japanese armed forces in territories previously subject to Western colonization. Pal’s separate opinion was the only totally dissenting one. Pal “did not in the least affirm all of Japan’s past actions; he simply held that the defendants’ actions were not illegal in an indictable sense.”6 In contradistinction to American prosecutor Joseph Keenan’s vision of the virtuous Allies and the repugnant Axis powers, Pal grav- itated towards a construction of the Pacific War as a “tragic contest” in which all sides “shared alike a common grammar of militaristic imperial aggression.”7 Pal believed the IMTFE’s mandate—which covered the years 1928 to 1945—was too narrow and too convenient.8 Pal was disturbed by an international tribunal that he took as pun- ishing Japanese aggression in territories that had previously been seized through imperial violence, for example, by the United Kingdom in Burma and India, the Netherlands in Indonesia, and the United States in the Philippines.9 Assuredly, Pal’s approach risks seeming to justify impunity for Japanese abuses in the name of anti-colonialism, thereby effectively revictimizing people for the fact of being colonized.10 2 B.S. Chimni, Customary International Law: A Third World Perspective, 112 AJIL 1, 6 (2018). 3 ANTHEA ROBERTS, IS INTERNATIONAL LAW INTERNATIONAL? (2017). 4 Anthea Roberts, Is International Law International? Continuing the Conversation, EJIL:TALK! (Feb. 9, 2018). 5 Timothy Brook, The Tokyo Judgment and the Rape of Nanking, 60 J. ASIAN STUD. 673, 690 (2001). 6 Ushimura Kei, Pal’s “Dissentient Judgment” Reconsidered: Some Notes on Postwar Japan’s Responses to the Opinion, 19 JAPAN REV. 215, 215 (2007). 7 Banerjee, supra note 1, at 89. 8 Brook, supra note 5, at 694. 9 Robert Cryer, The Tokyo International Military Tribunal and Crimes Against Peace (Aggression): Is There Anything to Learn?, in SEEKING ACCOUNTABILITY FOR THE UNLAWFUL USE OF FORCE 80, 82 (Leila Nadya Sadat ed., 2018). 10 Immi Tallgren, Watching Tokyo Trial, 5 LONDON REV. INT’L L. 291, 304 (2017) (noting that Pal’s dissent “appears insensitive to the suffering of victims”). 112 AJIL UNBOUND Vol. 114 https://www.cambridge.org/core/journals/american-journal-of-international-law/article/customary-international-law-a-third-world-perspective/DEDB6DB43A3B5A613B68FDBE56E20A20 https://www.oxfordscholarship.com/view/10.1093/oso/9780190696412.001.0001/oso-9780190696412 https://www.ejiltalk.org/is-international-law-international-continuing-the-conversation/ https://www.jstor.org/stable/2700106 https://www.jstor.org/stable/25791314?seq=1 https://www.legal-tools.org/doc/f52001/pdf/ https://www.jstor.org/stable/2700106 https://www.cambridge.org/core/books/seeking-accountability-for-the-unlawful-use-of-force/tokyo-international-military-tribunal-and-crimes-against-peace-aggression-is-there-anything-to-learn/823DB45086EFFBAD8E0073D04134B8EA https://academic.oup.com/lril/article-abstract/5/2/291/4621435?redirectedFrom=fulltext Pal emphasized that charges of conspiracy and crimes against peace were precarious because of retroactivity and legality. One major thread in Pal’s dissent is that the time had not come for Japan to be judged criminally respon- sible under international law for its actions during the war. The law had not ripened and, accordingly, prosecution was a hasty, opportunistic, even ulterior act. The colonized states, newly independent, were temporal laggards and hence entered a world where the crystallization of law would happen without their participation—they became subjected to this putatively universal law. Since, from Pal’s view, “no category of war became a crime in interna- tional law up to the date of the commencement of the world war under our consideration,” to prosecute such crimes was “a sham employment of legal process for the satisfaction of a thirst for revenge.”11 Pal insisted that international law could only legitimately punish if it organically emerged through and from a genuinely equal consensus of all states. For Pal, an international tribunal cannot deliver justice outside of an under- lying egalitarian order among states. Pal worried that an international court or tribunal would simply transfer the power of certain states to another level. Query as to what Pal would say today, about the International Criminal Court, for example, in light of his view that the international community has not as yet developed into “the world commonwealth” and perhaps as yet no particular group of nations can claim to be the custodian of “the common good”. International life is not yet organized into a community under the rule of law.12 In the case of conventional war crimes, Pal found that jurisdiction existed but also determined that there was no factual nexus with the accused. Pal investigated these charges “and eventually concluded that the evidence pre- sented to the Tribunal was not sufficient to establish the criminal responsibility of the defendants.”13 Pal ques- tioned whether the Japanese leadership could be implicated in this violence through doctrines of command responsibility. This nexus—that of the commander to the criminal conduct—continues to vex international crim- inal law today.14 As Timothy Brook explicates, Pal “[c]ombines a conservative legal positivism that refuses to innovate beyond existing law with a radicalism that regards the politics within which a court operates relevant to the adequacy of its findings.”15 This tension arises throughout Pal’s dissent. For example, the one-sided nature of the charges rattled him in that he felt it betrayed law’s need to be evenhanded. The omission of the atomic bombs at Hiroshima and Nagasaki, in particular, galled him.16 Pal mordantly noted that any claims that the breaches of shared humanity should be crim- inally punished “were non-existent” when another state decided to deploy atomic weaponry. On a different note, Pal was even less charitable than the IMTFE majority when it came to the sexual torture and enforced prostitution of many thousands of women. Pal’s dissent has been lamented for its callousness regarding gender-based violence.17 He was a skeptic, wincingly so; he was curtly dismissive and did not wish for law to enter 11 Int’l Military Tribunal for the Far East Judgement, dissentient opinion of Judge Pal, paras. 37 & 152 [hereinafter Pal Dissent]. 12 Id. at para 104. 13 Nakajima Takeshi, The Tokyo Tribunal, Justice Pal and the Revisionist Distortion of History, 9 ASIA-PAC. J. Article ID 3627, at 3 (Issue 44, Number 3) (2011). 14 See, e,g., the 2018 acquittal in the Bemba case delivered by a fractured Appeals Chamber of the International Criminal Court. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08A, Judgement on Appeal (June 8, 2018). 15 Brook, supra note 5, at 694 (citing the work of Elizabeth Kopelman). See also generally Elizabeth Kopelman, Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Tribunal, 23 N.Y.U. J. INT’L L. & POL. 373 (1990–91). 16 Brook, supra note 5 at 692. 17 Banerjee, supra note 1, at 96 (“Pal did (in hindsight, irresponsibly, and perhaps unforgivably) express doubts about the extent of Japanese war crimes; thus he suggested that reports of the Rape of Nanking (Nanjing) might have been exaggerated.”). 2020 MEMORIALIZING DISSENT: JUSTICE PAL IN TOKYO 113 http://www.sdh-fact.com/CL02_1/65_S4.pdf http://www.sdh-fact.com/CL02_1/65_S4.pdf http://apjjf.org/2011/9/44/Nakajima-Takeshi/3627/article.html https://www.icc-cpi.int/CourtRecords/CR2018_02984.PDF https://www.icc-cpi.int/CourtRecords/CR2018_02984.PDF https://www.jstor.org/stable/2700106 https://heinonline.org/HOL/LandingPage?handle=hein.journals/nyuilp23&div=19&id=&page= https://heinonline.org/HOL/LandingPage?handle=hein.journals/nyuilp23&div=19&id=&page= https://www.jstor.org/stable/2700106 https://www.legal-tools.org/doc/f52001/pdf/ that space. In his own words, pulled from his dissent: “I might mention in this connection that even the published accounts of Nanking ‘rape’ could not be accepted by the world without some suspicion of exaggeration.”18 Pal’s sardonic air-quotes around the word rape, intentionally introduced, speak volumes. Pal After Tokyo While on the ILC, Pal abstained from voting on the Draft Code of Offences against the Peace and Security of Mankind that had been proposed in 1954 and debated at the Sixth Session of the ILC in Paris. He thereby advanced his philosophical vision as articulated at the IMTFE, arguing that “given the nature of international rela- tions at that period, a mere code of international criminal law could not bring about real justice. It might indeed have the opposite effect of giving to dominant powers, victorious in wars, an excuse to commit injustices.”19 Pal wished to build “an international community under the reign of law. . . in which nationality or race should find no place.”20 He argued for the development of an international agency (which he called the “Super State”) that “he believed would eradicate wars and overcome racial discrimination.”21 He advocated Gandhism and pacifism, and “was a believer in humanism based on the philosophy of ‘dharma’ from ancient India.”22 Pal’s dissent, then, and his subsequent writings connect broadly to ongoing conversations about the legacies of imperialism, evenhandedness in adjudication, the new international economic order, judicial independence, inter- generational equity, the role of dissent in the life of international criminal trials, and the place of history in discourse about law. Pal’s legal and political philosophy was complex and fluid. Accordingly, as Kirsten Sellars notes, “during the Cold War decades Pal found common ground with Japanese nationalists over pan-Asianism and anti-commu- nism, with the non-aligned movement over anti-colonialism and self-determination, and with Western anti-mili- tarists over American foreign policies—and was lionized by them all.”23 Pal has garnered somewhat of a cult of personality, in particular, among Japanese nationalists. At times, Pal’s views expressed in his IMTFE dissent have been mischaracterized by Japanese nationalists; yet Pal himself colluded in this distortion in his postwar visits to Japan by appealing to this audience and by expressing empathy for convicted Japanese officials and soldiers.24 Tokyo’s Pal Memorial Pal assuredly remains a contested figure in Japan, notably among constituencies that advocate for greater redress and justice for Japanese war-time atrocities. The two memorials erected in his honor in Japan situate themselves within these political currents. One memorial is in Tokyo (completed in 2005), the other in Kyoto (completed in 1997). Very few international judges have ever been lauded in brick, imagery, and mortar. Pal’s honorific memorials, therefore, are quite distinctive. As the international community increasingly welcomes commemorations and monuments as ele- ments of reparative and transitional justice, uncomfortable sites such as the Pal memorials merit greater discussion.25 18 Pal Dissent, supra note 11, at para. 1064. 19 Banerjee, supra note 1, at 109. 20 Takeshi, supra note 13, at 6 (citing Pal). 21 Id. 22 Id. at 7. 23 Kirsten Sellars, Imperfect Justice at Nuremberg and Tokyo, 21 EJIL 1085, 1100 (2011). 24 Id. at 1099–1100 (discussing Yuma Totani’s work). 25 For example, both the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence and the Special Rapporteur in the field of cultural rights have emphasized the roles of art and memorialization. 114 AJIL UNBOUND Vol. 114 http://www.sdh-fact.com/CL02_1/65_S4.pdf https://www.legal-tools.org/doc/f52001/pdf/ http://apjjf.org/2011/9/44/Nakajima-Takeshi/3627/article.html http://apjjf.org/2011/9/44/Nakajima-Takeshi/3627/article.html http://apjjf.org/2011/9/44/Nakajima-Takeshi/3627/article.html https://academic.oup.com/ejil/article/21/4/1085/418156 https://academic.oup.com/ejil/article/21/4/1085/418156 https://www.ohchr.org/EN/Issues/TruthJusticeReparation/Pages/Index.aspx https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22908&LangID=E Pal’s Tokyo memorial26 sits between the Yasukuni Shrine, dedicated to war dead, and Yushukan, a controversial museum—chided for its historical revisionism and nationalism—that commits itself to the Japanese military. This memorial reclines in a courtyard of statuary. On its immediate left (when one faces it) is a statue commemorating a Japanese mother, widowed, who clutches three children (“Statue of War Widow with Children”), which was erected in 1975. On the right of Pal is a monument commemorating a patrol boat and sailors; to the further right of that is an old bronze cannon. More or less across from Pal, though slightly diagonal, are three statues in a row that commemorate animals for their service in war: a dog, a horse, and a carrier pigeon. I have elsewhere discussed what first struck me when visiting the Pal Memorial, namely, its invocation of the Confederate States of America. Jefferson Davis’s words, delivered in 1888 after the South’s defeat in the U.S. Civil War, are engraved on a plaque on the front of the site; Pal himself mentions Davis’s words in the last line of his approximately 250,000 word IMTFE dissent.27 I have also elaborated elsewhere on Pal’s footprints beyond the FIG. 1: Memorial to Judge Pal. Photograph taken by the author on July 2, 2018. 26 See Fig. 1. 27 Mark Drumbl, Judge Pal with Jefferson Davis in Tokyo, OPINIO JURIS (Mar. 23, 2019). The quote reads: “When Time shall have softened passion and prejudice, when Reason shall have stripped the mask from misrepresentation, then Justice, holding evenly her scales, will require much of past censure and praise to change places.” 2020 MEMORIALIZING DISSENT: JUSTICE PAL IN TOKYO 115 https://opiniojuris.org/2019/03/23/judge-pal-with-jefferson-davis-in-tokyo/ memorial today: his spectral presence in how Tokyo variably remembers World War II through six museums.28 I now hope to ask and speculate about a different question: in light of what we know of Pal’s legal philosophy, what might he think about the memorial edified in his honor? Would he be flattered? Would he cringe? Would he think he deserved it? My intuition is that one answer might lie in Pal’s own vision of discursive justice. For Pal, the attainment of global equality would arise through dissensus, tension, and dialogue among transcendental ideals and ground-level strug- gles.29 The memorials certainly create such spaces—physically, conversationally, and emotionally. Another surmised answer might lie in Pal’s vision of the role of the judge. Latha Varadarajan notes that “[t]he extent and virulence of Pal’s disagreement was unexpected . . . . Even the newly independent Indian state distanced itself from the dissent by declaring that Pal had been chosen as ‘an eminent judge in his individual capacity,’ and that he was not ‘India’s representative’ on the tribunal.”30 Pal underscored judicial independence. He lived it. General MacArthur put considerable pressure upon the IMTFE to deliver a unanimous guilty verdict. Pal resisted.31 He eschewed the idea that there had to be a singular narrative among judges. Hence, it seems plausible that he would find the memorialization of what others have called his “radical dissent” as consistent with, rather than inimical or antithetical to, a genuine overarching project of international criminal justice.32 Conclusion In sum, Pal’s Tokyo memorial inspires as it rankles. It consoles, confronts, and confounds. It is an example of how art, from below, responds to international criminal trials implemented from above. Memorialization of law, assumed to be congenial, cordial, and victim-centric, may not be so simple. Justice Pal’s memorial forms part of the aesthetics of public histories—the representations on (and from) the “street”—of courtroom accountability. Art may interface unpredictably with the self-promotional goals of international justice. Art may not always fit with the outreach efforts of international courts, nor may it merely flit by those efforts. Instead (and indeed), it might vex those efforts—discomfit them—and convect countercurrents. 28 Mark Drumbl, Scattered Thoughts on Art as Contrarian: Justice Pal’s Memorial in Tokyo, ART & INT’L JUST. INITIATIVE (June 26, 2019). 29 Banerjee, supra note 1, at 111. 30 Latha Varadarajan, The Trials of Imperialism: Radhabinod Pal’s Dissent at the Tokyo Tribunal, EUR. J. INT’L REL. 1, 6 (2014). 31 Id. at 6. 32 Neha Jain, Radical Dissents in International Criminal Trials, 28 EJIL 1163 (2017); Hemi Mistry, The Paradox of Dissent: Judicial Dissent and the Projects of International Criminal Justice, 13 J. INT’L CRIM. JUST. 449 (2015). 116 AJIL UNBOUND Vol. 114 https://artij.org/en/blog.html https://www.legal-tools.org/doc/f52001/pdf/ https://journals.sagepub.com/doi/abs/10.1177/1354066114555775?journalCode=ejta https://journals.sagepub.com/doi/abs/10.1177/1354066114555775?journalCode=ejta https://academic.oup.com/ejil/article/28/4/1163/4866314 https://academic.oup.com/jicj/article-abstract/13/3/449/890724 https://academic.oup.com/jicj/article-abstract/13/3/449/890724 Memorializing Dissent: Justice Pal in Tokyo Justice Pal's Arc of Life Pal's Dissent Pal After Tokyo Tokyo's Pal Memorial Conclusion 
work_j4oxvq34qjdefltulwcfsew2pe	----	4 Pacific Geographies #51 • January/February 2019 To illustrate governance arbitrage in action, I use the example of the justice system in Solomon Islands, for two reasons. The first is that delivering justice is the definitional task of effective governance that asserts legitimate authority (Finnemore, 1996), which is in turn the first goal of development under the good governance agenda (World Bank, 1997). The second is that justice in Solomon Islands has long been an area of hybrid contestation between the governances codes of the Western liberal state, customary practices and Christian churches against a backdrop of unfettered capitalism. I build on the discussion of the justice system to contrast elites and non-elites as governance arbitrageurs of differing resources, experience and skill at operating in the hybrid ‘mix of formal and informal institutions through which the exercise of power plays out’ (Allen et al., 2017:p.7). Elaborating on the connection between governance, legitimacy, authority and justice, Allen and others (2007) are right that power ‘plays out’ through institutions. Institutions legitimate power when they provide some kind of public good, creating an obligation by the public to support that institution. This legitimate power expresses itself as authority, as opposed to illegitimate, coercive and larcenous power (Barnett & Finnemore, 1999). Turning to governance, Solomon Islands does not have a single, unified justice system with discrete venues designed as an authoritative and legitimate institution, except on paper. Instead, the hybrid reality of justice-seeking in Solomon Islands means that courts are sites for mixing governance codes in ways that are dynamic and uncertain. In contrast to the cut-and-dried ways of common law legalism, the hybrid actions of Islander governance arbitrageurs make sense in the context of an ‘arbitrary governance environment’ characterised by the ‘constant making and unmaking of public authority... Bigmen justice: Governance arbitrage in Solomon Islands justice delivery Rob Lamontagne1 The Solomon Islands state remains weak despite decades of development assistance. While there are many possible causes to explain this weakness, one important yet relatively neglected expla- nation is that development efforts have failed to account for the country’s hybrid governance in which governance codes of Western liberalism, capitalism, Christianity and Melanesian custom interact. Although hybridity in the region is explored by academic observers (Boege et al., 2008; Mac Ginty & Richmond, 2016; Wallis et al., 2016; Forsyth et al., 2017), there is a need for con- tributions that help explain the practical impacts of hybrid governance. In other words, under- standing that governance in Solomon Islands is hybrid is the first step; understanding how hybrid governance functions is the second. To help fill that gap, this paper introduces a new concept, ‘governance arbitrage’, to explain how actors, elite and non-elite alike, navigate a hybrid governance environment by calling on diffe- rent governance codes in the pursuit of their goals. I argue the concept of arbitrage – profiting by taking advantage of the difference in values for the same commodity – is useful for interpreting the actions of Islanders because it shows how hybridity works in practice. 1 Griffith University, School of Government and International Relations, N72 170 Kessels Rd, Nathan QLD 4111, Australia, ORCID 0000-0001-5871-205X. DOI: 10.23791/510411 Abstract: Solomon Islands remains underdeveloped despite decades of development assistance. I argue this is due, in part, to the failure to account for the country’s hybrid governance in which governance codes of Western libera- lism, capitalism, Christianity and Melanesian custom interact. There is a need for contributions that discuss and ex- plain the practical impacts of hybrid governance on those who live in the region. To help fill that gap, I review and analyse the relevant secondary literature, introducing a new concept, ‘governance arbitrage’, to explain how actors navigate a hybrid governance environment. I show governance arbitrage is widespread within the justice system, and is a tool used by elites and non-elites alike. I conclude by suggesting possible new avenues for research Keywords: Melanesia; governance; governance arbitrage; hybridity [Submitted as Research Note: 25 January 2019, Acceptance of the revised manuscript: 20 February 2019] 5Pacific Geographies #51 • January/February 2019 where it is frequently unclear to the citizenry which authority, if any, will take responsibility for handling any given complaint’ (Tapscott, 2016:p.42). In this paper, I review the relevant secondary literature and make an argument for governance arbitrage as having explanatory advantages over an alternative such as forum shopping. This review of literature in the region brings together voices on both the Solomon Islands justice space as well as anthropological perspectives on how people – both elites and non-elites – have operated in other parts of Melanesia to identify and explain a phenomenon that holds back development efforts in Solomon Islands. This raises a concern about conflating literatures by using literature that is specific to Solomon Islands as well as another literature that includes Melanesia more broadly, particularly Solomon Islands’ neighbours of Papua New Guinea and Vanuatu. There are a number of reasons why I have chosen to override this concern and go forward. First among them is that Melanesia as a region of social science study is defined by the omnipresent diversity between governance codes. As a result, bringing perspectives from one part of Melanesia to another can illuminate common issues. At the same time, adopting national boundaries as barriers to research seems inappropriate. Finally, I am following in the tradition of the literature by comparing like-cases to generate fruitful insights (Douglas, 2005; Evans et al., 2010). My argument is as follows: in a developing state like Solomon Islands, development requires effective governance. Effective governance, in turn, requires a justice system that resolve disputes in a way that is seen to be fair and reasonable by participants; in a word, the justice system must be legitimate. That legitimacy comes from rightful authority, but in Solomon Islands, what precisely constitutes rightful authority is a highly complex problem and contested issue. This paper begins with a brief description of the social geography of Solomon Islands through the four codes of governance at work in the country, and use that discussion to define elites and non-elites in Islander history. I elaborate on hybridity, and then defend governance arbitrage as a better heuristic tool than the alternative of forum shopping. Having developed my theoretical approach, I then use the example of the Solomon Islands justice system as a space where governance arbitrage is omnipresent. I close by summarising and offering my views of what governance arbitrage’s use in future research programs. My objective is to show that governance arbitrage is a novel and useful description for an ongoing phenomenon with deep roots in Solomon Islands in particular and Melanesia more broadly. My conclusion is that understanding governance arbitrage is vital for explaining the pervasive uncertainty for justice-seekers in the region. Solomon Islands: a social geography of four governance codes Solomon Islands is an archipelagic developing country in the southwest Pacific. A part of Melanesia, it is part of the most ethnolinguistically diverse region on the planet, with the varieties of governance to match (Putt et al., 2018). The substrate of Islander governance is the traditional, or customary code. It includes a vast range of variations, but common features to be discussed shortly it together as a code (Wittgenstein, 2009). While the customary preceded contact with Westerners, custom since sustained contact is called kastom in Melanesian pidgin, reflecting its hybrid reality. Alongside custom is Christianity, introduced two centuries ago and the faith of virtually all Islanders today. Alongside both is the Weberian liberal state, with its institutions and assumptions of selfhood, citizenship and governance. Alongside all three is capitalism, the pursuit of economic profit by private actors. This section explains what these codes are, in the small space available. The basic building block of Solomon Islands society is the customary code of governance; and the basic building Figure 1: Child playing with an old tyre at a beach on Savo Island, Solomon Islands. S o u rc e: A n n e Pa u ls e n . 6 Pacific Geographies #51 • January/February 2019 block of the customary is what is now called the wantok. A group of people who view themselves as sharing a common identity reified by mutual reciprocity (de Renzio, 1999), wantoks express ‘cooperation, caring and reciprocal support, and a shared attachment to locality’ (Nanau, 2018:p.244). Literally meaning ‘one talk’ in pidgin, wantoks often share a common language, but may also offer commonality across, but not exclusive to, kinship ties, geographical origins, social associations, and religious affiliations. Wantoks remain ‘the primary reference point for most Solomon Islanders’ (Allen et al., 2017:p.6), and wantokism is the omnipresent ‘invisible hand’ (Nanau, 2018:p.248) of social interaction and governance in the country. Like kastom, the wantok is a social phenomenon that emerged in response to contact with other, foreign governance codes, but by the same token, represented something that had existed long before contact. Fundamentally a ‘system of generalised obligations and supports’, wantoks express a customary approach to constantly shifting interrelations between groups, that sees exclusivity as alien (Brigg, 2009:pp.151-152). As Harrison argues, the kastom code with its focus on ‘transactional networks and lines of transmission rather than ... discrete and bounded entities’ (2006:pp.70-71) leaves individuals as ‘partible’ people who act ‘as composite beings constituted of the detached parts/relationships of other persons through prior ... exchange’ (Mosko, 2010:p.215). Kastom and wantokism model a sense of selfhood based on dividual selves: selves defined in relations to others; meaning generated by what Harrison calls the ‘commerce of cultures’ (1993). Intertwined after nearly two centuries of missionary activity and holding the allegiance of 95% of the Solomon Islands population, Christian practice is also based in sociality and collectivity. Literally parochial in a way that has hybridised well with kastom, Islanders themselves regard the two codes as ‘inextricably linked’ (Timmer, 2008:p.199) even if they disagree about the precisely how and to what extent, and see the two codes as focusing on reciprocity, spirituality and a rich cultural ritual practice (Douglas, 2005). However, tensions abide, and at least one observer notes how a Protestant- dominated Melanesian Christianity based on an unmediated relationship with God can drive individualism in a way that undermines social stability (Robbins, 2004). Yet Whiteman argues that far from being passive recipients of a foreign creed, Islander Christians were, and are, ‘active participants, reinterpreting, modifying, accepting and rejecting change advocated by the missionary’ (1983:p.432). Two other Western governance codes, liberalism and capitalism, resolve the tension between individualism and collectivity by relying on a vision of the ‘possessive individual’ who is the unique ‘the proprietor of his own person and capacities, for which he owes nothing to society’ (Macpherson, 1962:p.263). The individual citizen is the basic component of Western liberalism expressed through a Weberian state structure with an elected political leadership and an implementing disinterested bureaucracy together exercising rational-legal authority (Weber, 2013). Of course, being a ‘possessive individual’ is not merely a statement of political citizenship, but a description of an egoistic, rational, benefit-maximising economic actor who is committed to the formal equality of all citizens under the law, but also to the pursuit of inequality in private profit under capitalism. Although the capitalist and the liberal codes of governance intertwine, they do so in tension (Sykes, 2007). The uneven interaction between these four entangled governance codes has resulted in what Porter and others call ‘social disintegration’. This is particularly clear in the example of youth and migration. In a post-colonial country with half the population under 25, and the young stuck between the past while also struggling to build a stable future, there is a growing sense that the traditional institutions are inappropriate or obsolete. This feeling is strongest in the towns and city (2015:p.2), places where the governance and social and economic ‘mix is changing fast[est]’ (Moore, 2014:p.29). Returning to wantoks, we can see this disintegration and reformation occurring in real time. Wantoks may provide social cohesion, comfort and support in the village, but transformed by an aggressive brand of capitalism and weak liberal government systems, wantoks of elite actors reshape reciprocity from a means of sharing and mutuality into a means of ‘exploitation and political expediency’ (Nanau, 2018:p.248). This ‘manipulation of custom’ (Fraenkel, 2004) is not confined to elites, but elites by definition have the power, authority and capacity to act more freely than non-elites, as Fraenkel points out in his discussion of militia leaders strategically misapplying customary principles of compensatory justice to rationalise their attempt to blackmail the liberal state for money payments to call a truce. This example from the violent ethnic Tensions of 1998-2003 is only one example of how the customary has become "increasingly monetised, separated from its social foundations, and often used instrumentally to extort and intimidate, or otherwise used to promote particular material or political interests" (Allen et al., 2017:p.5). Grassroots and bigmen: elites and non-elites The question of defining and outlining elites and non-elites is a question of the hybrid interaction of governance codes in every way as much as kastom or the wantok. This section discusses who elites are in Solomon Islanders, as well as non-elites. There are three kinds of elites: those pre- contact, during the colonial era, and finally the current, post-colonial era. In contrast, the relative ratio of non- elites is surprisingly consistent across all three eras, with change coming very recently. In Islander societies, the vast majority of people live by subsistence farming from time immemorial. Even today, between 80% and 90% of the population still live in this way, in village life. These non-elites – what Martin calls the grassroots (2007) – have recently begun taking part in the capitalist economy, whether in small doses in the village, or by moving to provincial towns or the capital, Honiara. By virtue of exerting capitalist agency, grassroots individuals join the ‘working class’, the Melanesian term for those engaged in the wage economy. If successful, they also begin ascending toward elite status. On the other hand, elite status is 7Pacific Geographies #51 • January/February 2019 something that must be both earned by the individual, and conferred on the individual by others. The sources of legitimating elite authority before sustained contact with Westerners lie in the ability of individuals to set themselves above by ritual achievement (earning the post-contact status of ‘great man’) or by entrepreneurial, acquisitive achievement (the ‘bigman’) (Harrison, 1993:p.156; compare Sahlins, 1963). Later, Western capitalists and colonialists attempted to define elites by offering more alien monikers: bigmen and great men were ‘chiefs’, and elite chiefs were ‘paramount chiefs’ (Goddard, 2010:p.11). As we will see shortly, British colonial officials attempted to create a new, specifically collaborationist elite by appointing some chiefs as ‘headmen’. Finally, in the post-colonial era, the rapid hybridisation of governance created a proudly, aggressively Western kind of elite figure eager to define themselves through their liberal and capitalist identities as a ‘possessive individual’: the ‘big shots’ who had risen to the top end of the working class (Martin, 2007). Hybridity Rather than crossing a fluid boundary between public and private, I argue that in Solomon Islands, people repurpose codes of governance, whether custom, Christian, capitalist or liberal, with elites having much more practice, facility and therefore ability at doing so. However, to say actors switch between discrete codes is to present them with solid and stable, not fluid and dynamic, boundaries. Moreover, while some codes have closer relationships than others (for example custom and Christianity as kastom), they are all interrelated. Capitalism has found its way into even the most remote corners of the country, while liberalism has outpaced the reach of its feeble Western state – providing at least ideas to Islanders, if not basic services. This section shows that hybridity is the most useful heuristic, as some of the preeminent experts in its use have said, to ‘explor[e] complex processes of interaction and transformation occurring between different institutional and social forms, and normative systems’ (Forsyth et al., 2017:p.408) in Solomon Islands. We must understand how the four governance codes in Solomon Islands interact and constitute a hybrid governance space. Why is this specifically hybrid, and not something else? To say these codes have been and are hybridising is mixture, but it is not random bricolage. At the same time, making this an example of Marxist or Hegelian dialectic is too a priori prescriptive. ‘Norm-grafting’ implies a simplistic addition of one plus one making two. Hybridity, however, is just right: it captures the fluid dynamism of different codes interacting, but on unequal terms according to context. The rest of this subsection unpacks hybridity before introducing examples of authority arbitrage that illustrate how elite actors call on different codes of governance to assert authority against a backdrop of rapid social, economic, political and cultural change. Hybridity is a relatively new entrant into scholarly research. Emerging from postmodernism as a repurposing of the Marxist dialectic, hybridity became a key concern of postcolonial writers and then with observers of globalisation after the Cold War. Hybridity has since become a common reference among the new and fast- growing literature of peacebuilding, if only slowly rising to prominence in others. Its rapid rise stems from the problems encountered in stopping and preventing civil conflicts, (counter-) insurgencies and mass atrocities in the developing world. As Boege and others point out (2008), the good governance agenda relied on the presence of legitimate institutions; these institutions required an authoritative state; authoritative states required liberalism to be legitimate, and so it was necessary to build or impose liberal states on developing countries. However, from Africa to Afghanistan and Iraq to Solomon Islands, it rapidly became clear that the Western liberal state "does not have a privileged position as the political framework that provides security, welfare and representation; it has to share authority, legitimacy and Figure 2: Peter rows the ferryboat between Taro and Supizae in Choiseul. Every year the distance gets longer because both islands are shrinking as the sea level rises. Hundreds of times a week, Peter rows his passengers across the short stretch of water taking people to work and returning them home. Because of climate change, the township of Taro will relocate to the mainland leaving Peter facing an uncertain future. S o u rc e: P a tr ic k R o se . 8 Pacific Geographies #51 • January/February 2019 capacity with other [community and customary] structures. In short, we are confronted with hybrid political codes, and they differ considerably from the [W]estern model state" (Boege et al., 2008:p.10). Hybridity therefore emerged from the need to describe something that ‘good governance’ could not: the reality that effective governance is not found in the liberal state alone, but nestled among other ‘local’, religious, customary, formal and informal sources. While this description is relatively uncontroversial, what is controversial is the attempt of some to operationalise hybridity and make the descriptive, prescriptive. Naturally, this prescriptive hybridity is a ‘double-edged sword’ (Wallis et al., 2016:p.161). Drawing on evidence from hybrid peacebuilding efforts in Papua New Guinea, Solomon Islands and Timor-Leste, Wallis, Kent and Jeffery point out that this ‘instrumental’ (ibid.) hybridity can fail as a result of Western technical experts attempting to appropriate local customs for their own ends, or equating so-called local ownership with locals being responsible for implementing the strategies Western experts give them (Boege et al., 2008). Yet, while prescriptive hybridity has its ‘dark side’ (Wallis et al., 2016:p.159), hybridity simply is, and observers and practitioners must use it as a descriptive tool to better understand how governance functions. Actors must accommodate some form of instrumental hybridity to have any effect at all, and that is what governance arbitrageurs are an example of. How hybrid is forum shopping? To clarify the benefit of using governance arbitrage in a specifically hybrid environment, let us contrast it with another candidate used in an excellent article on the phenomenon of (North) Solomon Islands justice- seeking: ‘forum shopping’ (Cooper, 2018)[footnote: I thank an anonymous reviewer for making this point.]. Forum shopping, a term taken from Anglo- American legal studies, is the ‘act of seeking the most advantageous venue in which to try a [legal] case’ (Algero 1999:p.79). It assumes, however that both vertical and horizontal fora options (whether appealing to higher courts or moving cases from one jurisdiction to another) are distinct, discrete, and legible to the participants. Forum shopping means weighing and up selecting mutually-exclusive fora, i.e. going from one forum to another forum and choosing between them, as one would between different items at the market. Forum shopping requires a choice between a liberal resolution process, a Christian resolution process or a customary resolution process. While these labels can be attached to different examples, the hard-and-fast distinction breaks down on contact with reality: each is captured in turn by the others on shifting ground. The analytic clarity that forum shopping offers should not be dismissed, but in Solomon Islands justice-seeking, the choice is not between fora, because the national justice space is essentially one big forum, in which the four governance codes vie and overlap. If forum shopping is about choosing different options within one framework of governance, governance arbitrage is about both choosing and creating different options for governance outcomes amongst intertwined governance codes. In contrast to forum shopping, where justice-seeking strategies are delimited by space and time (i.e. changing venue or pursuing an appeal by scheduled dates with final judgements handed down), hybrid justice-seeking means arbitrageurs seek their outcomes without regard to time (no sub-ideal outcome is ever final) and ranging across different hybrid spaces: examples include local courts that meld Western liberalism and customary-Christian kastom, pursuing Christian church dispute resolution if unsuccessful, or petitioning the state for compensation which is non-customary by calling on kastom (Evans et al., 2010). Distinct, discrete and legible accurately describe forum shopping, but do not accurately describe this process. We must move beyond a ‘hierarchical approach to legal pluralism’ in Melanesia that ‘obscure[s] a more complex interplay between the interwoven spheres of “traditional law” and “state law” and a new sphere of “blended’ law”’ (Corrin, 2009:p.29). Governance arbitrage and justice This section uses justice as the example of how governance arbitrage works in practice. I begin with outlining the Islander justice system, pre-contact, before moving onto the installation of a Western justice system under the British Solomon Islands Protectorate and colonial attempts to use governance arbitrage to assert their authority. I then outline the decline and collapse of the justice system outside the capital – the Native Courts, then area, or local courts – since independence. Throughout, we see elites and grassroots alike pursuing justice, but the elites using their greater resources as arbitrageurs to tip the procedures and outcomes of the justice system in their favour. Before Westerners, dispute resolution in Melanesia included a variety of methods from sorcery to vendetta-warfare, but not courts as Westerners would think of them. Customary practices did not constitute a formal, written code of laws because there was no writing and therefore no formality. Different groups with their unique requirements of right and wrong, fairness and justice made the reconciliation of differing accounts difficult without a common body of law or venues. Even the collaboration of relevant chiefs virtually never resulted in a final, acceptable settlement, a feature of Island justice that survives in this century. Understandable due to the fluid boundaries of different groups’ cultural practices, compensation in the form of gifts, people, and other offerings such as cultural rituals often represented the only way to bring conflict to a close. It was only with the coming of Christian missionaries – themselves often brutal in the treatment of sinners – that peaceful mediation became a method of conflict resolution (Harrison, 1993; Goddard, 2010). The coming of colonial power in the late nineteenth century filled a role of the disinterested, bureaucratic adjudicator whose rulings were seen as unbiased and therefore legitimate. In the British Solomon Islands Protectorate, officials followed the Australian example in neighbouring Papua and New Guinea by sending junior officers on patrol (Dinnen & Braithwaite, 2009), in part to serve as circuit judges. However, because these District Officers were so few in number – at its height, the Protectorate employed 100 staff to oversee 28,000 9Pacific Geographies #51 • January/February 2019 square kilometres (McIntyre, 2014) – the British co-opted customary institutions by appointing bigmen as ‘headmen’ (Putt et al., 2018) of their village or district and presidents of the ‘native court’, to be assisted by other Islanders serving as constable and clerk (Evans et al., 2010). Banned from issuing decisions on religious matters, the headmen were both empowered as the link between customary and Western justice, yet disempowered as their authority came from Western justice alone (Goddard, 2010): whether officers, or the later magistrates, and finally European judges in the capital, colonial officials always reserved final adjudicating power for themselves. British officials built on their cooptation strategy and formalised the headman system as the Native Courts (later renamed ‘area courts’ under the Local Government Act) dealing with land disputes and customary matters. After the Second World War, headmen were slowly replaced by administrative resident clerks, support magistrates on their circuits, and issue processes. As the decolonisation push began in the mid-1960s, locally-elected councils were created to oversee the courts. However, while the councils were meant to oversee the courts and administer their areas, they were created with no rules for how they were supposed to operate. Plans were drawn up to devolve real powers to the councils, but that was never done (Timmer, 2008). Nevertheless, there was a functional justice system upon independence in 1978. Sixty-five local courts sat around the country, heard cases and issued decisions to settle disputes or to refer them to the liberal system. The courts worked well as part of a hybrid order: wantoks were represented through the councils, and the distant coercive powers of the state supported and strengthened the courts. Most important was that the courts operated in a way that was legible to Islanders with jurisdiction over problems they wanted solved: ‘a range of social order problems’ (Porter et al., 2015:p.7) like public drunkenness and delinquency and also the single most important problem in Solomon Islands political economy, land rights. However, this also represented a binary problem that hybridity could not solve: the impossibility of codifying customary land rights in liberal law, starting with the reality that is customary land use, the use of the land itself could never be legitimately alienated to the liberal system, only stolen (a matter in any event beyond the remit of the courts, which were banned from adjudicating whether or not land was customary or not). Outside observers have often noted the virtually inevitable failure of ‘chiefs’, however defined, to settle land disputes in Solomon Islands, and the resulting failure of the local courts to solve these disputes (Evans et al., 2010; Goddard, 2010); however, the impossibility of reconciling two completely different governance codes to a legitimate state in either goes largely unremarked. Independence was followed by the withdrawal of the state from the local courts, and from the rural areas more broadly. Funding dropped for the resident clerks who served as the linchpins of the integrated justice system. The waiting times for oversight and action by the Western system lengthened, undermining the courts’ legitimacy and attractiveness by progressively removing avenues for appeal referral. The courts evaporated, and by 1986, halved in number. As what was left of the system was nationalised and placed entirely within the liberal state judiciary, justice became inaccessible (Hammergren & Isser, 2015:p.10). By 1998, only three courts remained outside the capital, and magistrates could no longer effectively go on circuits to hear cases (Porter et al., 2015). This vanishing from the periphery ‘severely hampered [locals’] ability to deal with social crises’ (Porter et al., 2015:p.2); in 1998 the Tensions broke out and the local courts and their councils were finally abolished in law; no court would hear a case until 2010 (Hammergren & Isser, 2015). Communities filled the gap as best they could with ‘local arrangements’, but these arrangements lacked the legitimacy of the courts. They were overburdened with the sheer range of complaints they had to resolve, whether public order issues, those dealing with land rights or logging or murder (Porter et al., 2015:p.2). While it is true that Islanders ‘navigate [hybrid] power relations in more subtle and nuanced ways’ than are readily apparent to outside observers (Allen et al., 2017: 9), the absence of the courts’ provision of a space to transparently categorise and refer disputes, combined with the radical social, political, economic and cultural changes occurring, opened opportunities of exploitation for unscrupulous elites. The ‘retreat of the state’ (Dinnen & Allen, 2016:p.79) strengthened elite authority by removing alternate sources of effective governance (Evans et al., 2010). Without the courts, justice provision naturally fell back to bigmen and elders, which reinforced ‘immense practical challenges in determining who the chiefs [were]’ (Timmer, 2008:p.197). Weakened communities ‘routinely challenged’ claims of authority by bigmen, especially those who had sinned according to church doctrine by ‘partak[ing] in alcohol and...are seen as colluding with loggers’ (Porter et al., 2015,p.7). Collusion with loggers brings up the acetylene-torch role of capitalism in undermining justice and effective governance in Solomon Islands (Allen, 2011), and the role of logging in Solomon Islands’s political economy cannot be understated. Currently the country’s main export commodity earning 70 per cent of all export income (DFAT, 2014), the logging industry has played a major role in destroying both local ecologies and traditional modes of governance by incentivising the breakdown in traditional collective ownership administered by chiefs and elders, and its replacement by local ‘trustees’ according to Western law who behave as private owners and take the profits, permitting fees and bribes for themselves (Baines, 2015; Monson, 2015), creating an atmosphere of universal suspicion. This brings us to the core of governance arbitrage. Those who wield authority do so by appeals to multiple sources of legitimacy, often at once. The kastom bigman is a Western state trustee of a wantok’s traditional land while serving as a Member of Parliament and a Christian church elder – and if they are not actually the same person, they usually share kin or personal networks (Baines, 2015). Once a bigman would proffer justice with oversight by 10 Pacific Geographies #51 • January/February 2019 elders; then church pastors offering their religious views entered the picture; then Western authorities with their liberal state functions; and finally capitalists with their eagerness to pay pennies to make millions. Now, elites range across these codes to gain and maintain authority, even when asserting authority under one code undermines authority in another; in fact, the practice undermines each code but leaves the power concentrated in relatively few hands (Cooper, 2018; McDougall, 2015; Monson, 2015). Bigmen can and often do abuse their customary authority to line their own pockets with rents and payments from logging companies, the state and foreign aid actors rather than distributing these funds to their kin, and escape retribution by calling on precisely the traditional roles of authority they abuse (Baines, 2015; Hviding, 2015). Likewise, the withdrawal of that very system under the postcolonial state is another example of the new elite asserting its authority by deprioritising the provision of effective and non- personalised justice outside provincial capitals. While Solomon Islands is a state cursed with the wicked problems of building a liberal democratic state without much money in a context of economic and ethnic volatility, the agency of national elites should not be denied, especially when considering the elites’ decades-long approach to subverting the Constitutional mandate to decentralise power and fighting federalism and power-sharing (Nanau, 2017a; Nanau, 2017b; Scales, 2008). Fundamentally, while much remains outside the control of elites, much does. At the grassroots, non-elite Islanders also understand the differences between governance codes, but see them as generally complementary. Customary, chiefly procedures, Christian mediation and local liberal courts can be complementary (McDougall & Kere, 2012). More importantly, ‘local communities ... [combine] the most efficacious elements of indigenous and introduced regulatory systems with reasonable efficiency’ (Evans et al., 2010:p.29) in classic arbitrageur fashion. While these views may be optimistic by privileging inputs of governance arbitrage while discounting the outputs of widespread governance failure in terms of ecological disaster, ongoing ethnic tensions, and state weakness that strengthens elites, the fact remains that elites and non-elites alike are attempting to make the best of a less-than-ideal situation through governance arbitrage in a hybrid governance environment. Conclusion This paper has argued that one vital yet neglected explanation for the poor development outcomes in Solomon Islands is the failure to account for the hybrid interaction of governance codes – customary, Christian, capitalist and liberal – in the country. As a result, despite the presence of four governance codes, effective hybrid governance remains harder to find. Nevertheless, Islander elites and non-elites alike make the best of the situation through governance arbitrage. In this paper, we have seen litigants bringing customary expectations to a liberal court; bringing the liberal to customary practices; bringing the Christian to both. In hybridity, we see not just distinct venues, but fluidity and overlap between governance codes – and while national elites may be able to navigate the system through the acquisition of experience and the deployment of resources, non-elites in local communities struggle to make do; the difference between the two groups is one’s luxury of strategy, the others’ reliance on tactics. Both groups, however, are trying to make the best of their situation, to get what they want. The purpose of this paper has been to identify a gap in the literature, namely examples of hybridity in Melanesia in action. The purpose has been to argue for the concept of governance arbitrage as a useful addition to the literature, using the example of the Solomon Islands justice space. The goal is to recommend new pathways for research, e.g. moving away from the assumption that the liberal justice system with its ‘possessive individuals’ is the only way to justice and finding examples of governance arbitrage in the emergent legal system. More important that this is seeing Solomon Islands’s politics as politics, and looking for governance arbitrage both in the actions of its political actors and as a core component of the slow building of a political settlement in the country. Reference List Algero, M. (1999) In Defense of Forum Shopping: A Realistic Look at Selecting a Venue. Nebraska Law Review, 78 (1), 79-112. Allen, M. (2011) The Political Economy of Logging in Solomon Islands. In: Duncan, R. (Ed.) The Political Economy of Economic Reform in the Pacific. Mandaluyong City, Asian Development Bank, 277-302. Allen, M., Dinnen, S., Keen, M. & Allen, B. (2017) New Pathways Across Old Terrain? SSGM Discussion Paper 2017/5. Canberra, SSGM. Baines, G. (2015) Solomon Islands is Unprepared to Manage a Minerals-Based Economy. SSGM Discussion Paper 2015/6. Canberra, SSGM. Barnett, M., & Finnemore, M. (1999) The Politics, Power, and Pathologies of International Organizations. International Organization, 53 (4), 699-732. Boege, V., Brown, A., Clements, K. & Nolan, A. (2008) On Hybrid Political Orders and Emerging States: State Formation in the Context of 'Fragility'. Berlin, Berghof Research Center for Constructive Conflict Management. Brigg, M. (2009) Wantokism and state building in Solomon Islands: A response to Fukuyama. Pacific Economic Bulletin, 24 (3), 148-161. Cooper, J. (2018) State Capacity and Gender Inequality: Experimental evidence from Papua New Guinea. Available from: http://jasper-cooper.com/ papers/Cooper_CAP.pdf. Corrin, J. (2009) Moving Beyond the Hierarchical Approach to Legal Pluralism in the South Pacific. The Journal of Legal Pluralism and Unofficial Law, 41 (59), 29-48. de Renzio, P. (1999) Bigmen and Wantoks: Social Capital and Group Behaviour in Papua New Guinea. WIDER Project Meeting, Group Behaviour and Development. Helsinki: United Nations University. Dinnen, S. & Allen, M. (2016) State Absence and State Formation in Solomon Islands: Reflections on Agency, Scale and Hybridity. Development and Change. 47 (1), 76-97. Dinnen, S. & Braithwaite, J. (2009) Reinventing policing through the prism of the colonial kiap. Policing and Society, 19 (2), 161-173. Douglas, B. (2005) Christian Custom and the Church as Structure in 'Weak States' in Melanesia. Paper given at \ Civil Society, Religion & Global Governance: Paradigms of Power & Persuasion Conference, 1-2 September 2005, Canberra, Australia. Evans, D., M. Goddard and D. Paterson. (2011) A Comparative Analysis of Village Courts of Papua New Guinea, Island Courts of Vanuatu and Local Courts of Solomon Islands. Washington, DC: World Bank. Finnemore, M. (1996) Norms, Culture, and World Politics: Insights from Sociology's Institutionalism. International Organization, 50, 325-47. Forsyth, M., L. Kent, S. Dinnen, J. Wallis and S. Bose (2017) Hybridity in peacebuilding and development: a critical approach. Third World Thematics: A TWQ Journal, 2 (4), 407-421. Fraenkel, J. (2004) The Manipulation of Custom: From uprising to intervention in the Solomon Islands. Wellington, Victoria University Press. Goddard, M. 2010. Justice Delivered Locally: Solomon Islands: Literature Review. Washington, 11Pacific Geographies #51 • January/February 2019 Rob Lamontagne [rob.lamontagne@griffithuni.edu.au] is a PhD researcher with Griffith University and Visiting Fellow at the Development Policy Centre in Canberra, Australia, where he studies anticorruption strategies in the region. His research is supported by a Griffith University Research Training Program International Scholarship. DC: The World Bank. Hammergren, L. & Isser, D. (2015) Institutional and Fiscal Analysis of Local-Level Courts in Solomon Islands. Washington, DC: World Bank. Harrison, S. (1993) The Commerce of Cultures in Melanesia. Man, 28 (1), new series, 139-158. Harrison, S. (2006) Fracturing resemblances: Identity and mimetic conflict in Melanesia and the West. New York & Oxford: Berghahn Books. Hviding, E. (2015) Big Money in the Rural: Wealth and Dispossession in Western Solomons Political Economy. The Journal of Pacific History, 50 (4), 473-485. Mac Ginty, R. & Richmond, O. (2016) The fallacy of constructing hybrid political orders: A reappraisal of the hybrid turn in peacebuilding. International Peacekeeping 23 (2), 1-21. Macpherson, C. (1962) The political theory of possessive individualism: Hobbes to Locke. Oxford: Oxford University Press. Martin, K. (2007) Your Own Buai You Must Buy: The Ideology of Possessive Individualism in Papua New Guinea. Anthropological Forum, 17 (3), 285-298, McDougall, D. (2015) Customary Authority and State Withdrawal in Solomon Islands: Resilience or Tenacity?. The Journal of Pacific History, 50 (4), 450-472. McDougall, D. & Kere, J. (2012) Christianity, Custom, and Law: Conflict and Peacemaking in the Post-Conflict Solomon Islands. In: Brigg, M. & Bleiker, R. (Eds.) Mediating Across Difference: Indigenous, Oceanic, and Asian Approaches to Conflict Resolution. Honolulu, University of Hawaii Press, 141-162. McIntyre, W. (2014) Winding up the British Empire in the Pacific Islands. Oxford: Oxford University Press. Monson, R. (2015) From Taovia to Trustee: Urbanisation, Land Disputes and Social Differentiation in Kakabona, The Journal of Pacific History. 50 (4), 437-449. Moore, C. (2014) Moving forward by asking the right questions of the past. In: Wood, T. & Howes, S. (Eds) Debating Ten Years of RAMSI: Reflections on the Regional Assistance Mission to Solomon Islands, 27-30. Canberra: Development Policy Centre. Mosko, M. (2010) Partible penitents: Dividual personhood and Christian practice in Melanesia and the West. The Journal of the Royal Anthropological Institute, 16 (2), 215-240. Nanau, G. (2018) Wantoks and kastom (Solomon Islands, Melanesia). In: Ledeneva, A. (ed.) The Global Encyclopaedia of Informality: Understanding Social and Cultural Complexity, Volume 1. London, University College London Press, 244-247. Porter, D., Isser, D. & Venning, P. (2015) Toward More Effective and Legitimate Institutions to Handle Problems of Justice in Solomon Islands. Washington, The World Bank. Putt, J., Dinnen, S., Keen, M. & Batley, J. (2018) The RAMSI Legacy for Policing in the Pacific Region. Canberra, Department of Pacific Affairs. Robbins, J. (2004). Becoming Sinners: Christianity and Moral Torment in a Papua New Guinea Society. Oakland: University of California Press. Sahlins, M. (1963) Poor Man, Rich Man, Big-Man, Chief: Political Types in Melanesia. Comparative Studies in Society and History. 5 (3), 285-303. Sykes, K. (2007) Interrogating Individuals: The Theory of Possessive Individualism in the Western Pacific. Anthropological Forum, 17 (3), 213-224. Tapscott, R. (2016) Local Security and the (Un) making of Public Authority in Gulu, Northern Uganda. African Affairs, 116/462, 39-59. Timmer, J. (2008) Kastom and Theocracy: A Reflection on Governance from the Uttermost Part Of The World. In: Dinnen, S. & Firth, S. (Eds.) Politics and State Building in Solomon Islands, 194-212. Canberra: ANU E-Press. Wallis, J., Jeffery, R. & Kent, L. (2016) Political reconciliation in Timor Leste, Solomon Islands and Bougainville: the dark side of hybridity. Australian Journal of International Affairs. 70 (2), 159-178. World Bank. (1997) World Development Report 1997: The State in a Changing World. New York: Oxford University Press. Weber, M. 2013. Economy and Society. (Eds.) Roth, G. & Wittich, C. Oakland: University of California Press. Whiteman, D. (1983) Melanesians and Missionaries. Pasadena: William Carey Library. Figure 3: Typical housing on the Solomon Islands, Savo Island. S o u rc e: A n n e Pa u ls e n . 
work_j4oyjsabefhlzhye6ieyjinmrm	----	Suicide and community justice Suicide and community justice PHILLIPS, Jake <http://orcid.org/0000-0002-7606-6423>, PADFIELD, Nicola and GELSTHORPE, Loraine Available from Sheffield Hallam University Research Archive (SHURA) at: http://shura.shu.ac.uk/22311/ This document is the author deposited version. You are advised to consult the publisher's version if you wish to cite from it. Published version PHILLIPS, Jake, PADFIELD, Nicola and GELSTHORPE, Loraine (2018). Suicide and community justice. Health and Justice, 6. Copyright and re-use policy See http://shura.shu.ac.uk/information.html Sheffield Hallam University Research Archive http://shura.shu.ac.uk http://shura.shu.ac.uk/ http://shura.shu.ac.uk/information.html RESEARCH ARTICLE Open Access Suicide and community justice Jake Phillips1* , Nicola Padfield2 and Loraine Gelsthorpe3 Abstract Background: There has long been concern about the number of people who die in custody in England and Wales, particularly in prisons or police stations. The concern is obviously heightened when people die either at their own hand, or at the hands of others. Yet there has been selective critical gaze, and people who die whilst under probation or community supervision have been neglected (Phillips, J, Gelsthorpe, L, Padfield, N., Criminology & Criminal Justice, https://doi.org/10.1177/1748895817745939, 2017). Given that there is evidence to suggest that contact with the criminal justice system in non-custodial settings is associated with higher mortality rates than those found in the general population, such neglect is concerning. Methods: This article explores data which has been published since 2016 by Her Majesty’s Prison and Probation Service (HMPPS) on the deaths of offenders whilst under supervision. We draw on data which is collected by probation providers and collated by HMPPS to present original analyses, with particular focus on deaths by suicide. We calculate rates of self-inflicted deaths and rate ratios with the general population and the prison population. Results: The suicide rates for all groups within the sample are higher than the general population. Conclusions: We explore the utility of the data in helping us to understand the trends regarding people dying whilst under probation supervision with a particular focus on suicide, and highlight areas where the dataset is deficient. We conclude that whilst the dataset can be used to calculate headline rates of suicide it raises many questions in terms of the extant risks that people on probation face, and we explore ways in which the data can be used more fully to understand this important social and public health issue. We consider ways in which the dataset could be matched with other datasets in future research so that health issues might be brought into the analysis, and reflect on other research methodologies which would add depth to our understanding of why the mortality rate amongst people in contact with the criminal justice system is higher than in the general population. Background This paper explores the under-researched topic of deaths (particularly self-inflicted deaths) of those subject to criminal justice supervision in the community. Whilst in England and Wales there has been significant public (and academic) concern for deaths in custody, the deaths of those subject to community supervision has not been studied nearly as much. This became a cause of concern to us in 2010, when the Howard League for Penal Reform encouraged us to analyse information that they had received from individual Probation Trusts (as they were then): see Gelsthorpe et al. 2012. Since then, more official data has been published. We show in this paper that despite limitations with these official data, there are some important concerns when it comes to suicides of people under probation supervision. What do we already know about suicide in community justice settings? Although the deaths of offenders under supervision have received less attention than deaths in other criminal just- ice institutions, there is evidence to suggest that the mortality rate amongst this group is higher than the gen- eral population. The following section provides a review of existing research on this topic focusing on prevalence, official statistics and risk factors. Prevalence Pritchard et al. (1997) examined suicide and violent death in a six-year cohort of male probationers in England and Wales for the period 1990–1995 and found that males (aged 17–54) had twice the death rate and * Correspondence: jake.phillips@shu.ac.uk 1Department of Law and Criminology, Sheffield Hallam University, Heart of the Campus, Collegiate Crescent, Sheffield S10 2BQ, England Full list of author information is available at the end of the article Health and Justice © The Author(s). 2018 Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. Phillips et al. Health and Justice (2018) 6:14 https://doi.org/10.1186/s40352-018-0072-7 http://crossmark.crossref.org/dialog/?doi=10.1186/s40352-018-0072-7&domain=pdf http://orcid.org/0000-0002-7606-6423 https://doi.org/10.1177/1748895817745939 mailto:jake.phillips@shu.ac.uk http://creativecommons.org/licenses/by/4.0/ nine times the suicide rate of the general population. In a study for the Home Office, Sattar (2001) found that deaths following release from prison tended to occur soon after release. A quarter of deaths within her sample of 1267 deaths in the community in England and Wales occurred within 4 weeks of release from prison. Over half occurred within 12 weeks of release, and within 24 weeks of release just under three-quarters of all deaths had occurred. The number of deaths in the community was five times the rate of the 236 deaths of prisoners and the mortality rate for supervisees was four times higher than that for the male general population rate. Solomon and Silvestri (2008) found that the rate of suicide of those under probation supervision was nine times higher than in the general population and higher than in prison. King et al. (2015) found that 13% of suicides in the general population in England and Wales were, or had recently been, under supervision by the criminal justice system. They reported a significantly elevated suicide risk among individuals who had received a police caution, recently been released from prison, recently completed a super- vised community sentence, served other community dis- posals, been remanded as a suspect on police bail and/or dealt with by no further action (King et al., 2015: 175). Interestingly, they found that ‘individuals serving a com- munity sentence under the supervision of the Probation Service had a relatively low risk’ of suicide (2015: 175). King et al.’s (2015: 176) findings were not statistically sig- nificant but they point to the potential for probation supervision to serve as a protective factor and ‘as a crucial source of support for vulnerable offenders’. Internationally, a high mortality rate amongst people under criminal justice supervision in the community has been consistently identified. For example, In Australia, Biles et al. (1999) found that people under probation supervision had a higher mortality rate and suicide rate than the general population and people in prison. In Denmark Webb et al.’s (2011) analysis of suicide amongst people in the criminal justice system identified an elevated risk of suicide and Binswanger et al.’s (2011) analysis of deaths after leaving prison shows a mortality rate that is 3.5 times that of the general population. Trends and themes within English and welsh official data In 2016 the Ministry of Justice (2016a) published, for the first time, data on deaths of offenders in the community. This means that we now have a better understanding of trends regarding deaths within the offender population in England and Wales. That said, it should be noted there are concerns about the quality of these data, as noted elsewhere (Phillips et al. 2017). For example, data from the years 2010–2013 contained many gaps in terms of type of sentence and offence category and it is worth noting that recording practices changed over this period. Moreover, two (out of 21) Community Rehabilitation Companies1 (CRCs) failed to report any information by the Government’s cut-off date for the 2016–17 figures (Ministry of Justice 2017a). In order to compensate for this latter point, Government statisticians have adjusted figures for earlier years by removing deaths from the two missing CRCs ‘so as to provide like-for-like compar- isons with 2016-17’ (Ministry of Justice 2017a: 5). Thus trends over time should be treated with care. Nevertheless, the government’s own publication shows that in 2015/2016, there were 725 deaths of offenders in the community, a 30% increase from 557 deaths in the previous year. Of the 725 deaths, 264 were self-inflicted and show an increase of 40% from 2014/2015. A further 68 were accidental and there were 22 apparent homi- cides. The remaining 371 were from natural causes or unknown (Ministry of Justice, 2017a) Table 1. The category ‘unclassified’ refers to those deaths for which a cause was unknown at the time of reporting and has not yet been updated. The latest data give some in- formation on deaths of offenders supervised by the National Probation Service as opposed to those super- vised by the CRC and there are some points worth not- ing here. As the Ministry of Justice highlights; In 2016/17, the proportion of self-inflicted deaths in the NPS was lower than the proportion of deaths due to natural causes. The opposite is true of the CRCs, where self-inflicted deaths accounted for a higher proportion of deaths than natural causes. This is only partly explained by the different age distributions of the supervised offenders. When comparing on a like- for- like basis, CRCs had a drop in the number of self-inflicted deaths compared to the previous year, whereas the NPS saw an increase (Ministry of Justice, 2017a: 8). Drawing again upon the Ministry of Justice’s analysis, there were 372 deaths of offenders under post-release supervision in the community after a custodial sentence in 2016/17. This represented 50% of all deaths of of- fenders in the community. Although in absolute terms these were similar between NPS and CRCs (180 and 192 deaths respectively), in relative terms deaths under post- release supervision represented 41% of all deaths in the community while supervised by CRCs, but 65% of all deaths while supervised by the NPS. The Ministry of Justice argues that the ‘sizeable increase in deaths since 2014/15, corresponds with the introduction of ORA2’. However, it is worth noting that when we break this down to people on post-release supervision, the number of self-inflicted deaths rose from 40 to 117 (an increase of almost 300% between 2013/14 and 2016/17) whilst the number of people on post-release supervision rose Phillips et al. Health and Justice (2018) 6:14 Page 2 of 12 by just 179% (from 39,565 to 70,650) over the same period (Ministry of Justice, 2016b). It is possible that changes to recording methods account for some of this discrepancy but probably not all. It is also worth commenting on deaths that occur within Approved Premises (AP) which are used to house high risk offenders, normally upon release from prison. APs are akin to bail hostels or halfway houses and are generally run and managed by the National Probation Service, although in recent years there has been some outsourcing of certain tasks, such as staffing night cover and there are a number of independent Approved Prem- ises. According to official statistics (Ministry of Justice, 2017a) there were 13 deaths of offenders resident in Ap- proved Premises in 2016/17. The number of deaths have ranged from 9 to 15 deaths a year since 2010/11 which accounts for 2% of all deaths of offenders in the commu- nity. The majority of deaths of offenders in Approved Premises were male, while females accounted for three deaths. Approved Premises fit into our current system very uncomfortably not least because there is acute de- mand for more space. This is particularly the case for women, so much so that a woman won her case before the Supreme Court3 in 2017 on the grounds that provision of APs constitutes direct discrimination against women which is unlawful unless justified, and that the Secretary of State had shown no such justifica- tion (see R (Coll) v Secretary of State for Justice [2017] UKSC 40). At that point there were 94 APs for men, dis- tributed around England and Wales including several in London. There are only 6 APs for women, who consti- tute 5% of the prison population, and none of them is in London or in Wales. This means that women are much more likely than men to be placed in an AP which is far from their homes and communities. Deaths that occur in Approved Premises are investigated by the Prisons and Probation Ombudsman (PPO) in the same way that deaths that occur in prison are investigated. The people who die whilst residing in an AP are the only probation supervisees whose deaths are investigated by an inde- pendent investigatory body in accordance with Article 2 of the Human Rights Act 1998. In our analysis of PPO reports into deaths in APs we found that drug use was a major concern both in terms of the risk associated with problematic drug use that is common to people who are required to live in APs as well as around the poor level of drug treatment available to people in prison in the first place and then during the transition into the community (Phillips et al. 2016). We also raised con- cerns around staffing levels, especially at weekends, as well as some issues around decision making and part- nership working. In addition to the Ministry of Justice’s analysis we have conducted analysis of the raw data in research on behalf of the Equality and Human Rights Commission which focused on people who died within 28 days of leaving prison. Our analysis (Phillips et al. 2016) showed, con- firming findings from elsewhere, that the first week after leaving prison was the highest risk with 66 people dying within 28 days of leaving prison. By far the most com- mon cause of death among this cohort was a self-inflicted overdose (n = 44) and the most common of- fences were acquisitive (n = 35), an offence type which is commonly associated with problematic drug use. The ma- jority (n = 37) of those 66 deaths occurred in the first 2 weeks after release. Risk factors People under supervision have a higher mortality rate than the general population although data for England and Wales are slightly outdated. However, prevalence only tells part of the story and if concerted action can be taken to prevent suicides in the future we need a better understanding of the risks that people face that may in- crease the chances of them taking their own lives. Again, the evidence here is relatively weak. That said, drugs and alcohol use features highly amongst people who die in the community (Sattar, 2001; Binswanger et al. 2011). Table 1 Deaths of offenders in the community by gender and apparent cause, England and Wales (Ministry of Justice 2017a) 2010/11 2011/12 2012/13 2013/14 2014/15 2015/16 2016/17a NPS CRCs Total NPS CRCs Total NPS CRCs Total Males and Females 704 653 634 560 179 379 558 241 497 738 279 469 748 Self-inflicted 148 162 190 189 49 141 190 63 207 270 72 161 233 Natural Causes 238 222 240 214 75 121 196 106 135 241 124 134 258 Homicide 27 28 28 17 5 9 14 6 16 22 13 20 33 Accident 68 49 49 37 13 35 48 21 46 67 14 43 57 Other 31 42 29 25 3 12 15 1 10 11 3 11 14 Unclassifiedb 192 150 98 78 34 61 95 44 83 127 53 100 153 NPS National Probation Service; CRC Community Rehabilitation Company aMissing returns from 2 CRCs. Caution should be used when comparing with earlier periods bUnclassified deaths refer to those deaths for which a cause was unknown at the time of reporting Phillips et al. Health and Justice (2018) 6:14 Page 3 of 12 Indeed, research consistently finds that many people who have offended have poor physical and mental health, lead chaotic lifestyles and are more likely to mis- use drugs (Mills, 2004; Brooker et al. 2009; Canton, 2008; Singleton et al. 2003; Brooker and Sirdifield, 2013 and Denney et al. 2014). This is important considering mental ill health is one of the main predictors of suicid- ality (Arsenault-Lapierre, Kim and Turecki, 2004). Writ- ing about the situation in England and Wales, Cook and Borrill (2015: 255) found that the key indicators for an offender to be considered at risk of suicide were previ- ous incidents of self-harm or attempted suicide and, to a lesser extent, ‘coping skills, psychiatric treatment/medi- cation, attitude to self, childhood abuse, current psycho- logical problems/ depression, and history of close relationship problems’. Borrill et al. (2017: 12) analysed the case records of 28 people who died by suicide while under probation supervision in England and highlight ‘the complex association of events and experiences that may contribute towards pathways to suicide among pro- bation service users under supervision’. More recently still, Mackenzie, Cartwright and Borrill (2018) conducted research with seven probation clients who had attempted suicide. Their participants suggested that bereavement, loss of control over their mental state or situation, difficulties relating to their probation sen- tence, issues around trusting authorities, and an inability to disclose suicidal feelings were linked to their suicidal feelings and behaviours. Pratt et al. (2006) found that within their sample of 384 suicides that occurred within 12 months of leaving prison main risk factors ‘were in- creasing age over 25 years, released from a local prison, a history of alcohol misuse or self-harm, a psychiatric diagnosis, and requiring Community Mental Health Services (CMHS) follow-up after release from prison.’ It is clear that previous research has uncovered trends and consistent findings amongst people who die by sui- cide when under probation supervision. However, as MacKenzie et al. (2013) have argued, there is a need for more research on this important social issue because of the consistent finding that people under supervision are at higher risk of dying by suicide than other populations. In order to update Sattar’s (2001) work and to add some context to our understanding of the suicide rate of people under probation supervision we now turn to new analysis of the data that are collected by Her Majesty’s Prisons and Probation Service (HMPPS) on the number of people who die by suicide when under probation supervision. Methods In the remainder of this article we augment the Ministry of Justice’s analysis of the data on deaths of offenders under supervision to update our knowledge of the sui- cide rate amongst this population. In order to gain a better understanding of the rate of suicide amongst people under the supervision of probation providers we have conducted new analysis of official data on deaths of offenders under supervision. The data contained in the dataset was collated by HMPPS using forms completed by probation providers when someone dies in accord- ance with Probation Instruction 01/2014 (Ministry of Justice, 2014). These forms ask for basic demographic data of the offender, cause of death and brief details of what happened in the run up to the death. They are then collated and published in brief by HMPPS as discussed above. We use the data to make comparisons between this group, the general population and people who die by suicide in prison. We have followed the methodology utilised recently by Fazel et al. (2017) to calculate rate ratios between different populations. We have access to the raw data through a data sharing agreement with HMPPS in order to conduct research on behalf of the Equality and Human Rights Commission, and use this as the basis for our analysis because of the decision by HMPPS to amend their published data as a result of the non-submission of data from two CRCs as mentioned above. In order to make comparisons with other populations we have calculated the suicide rate amongst people under supervision per 100,000. We have used the num- ber of people on the caseload available from the Ministry of Justice (2016b) as this bears the strongest resemblance to measures used in both Fazel et al.’s (2017) study, Sattar’s (2001) research and suicide rates from the Office for National Statistics (Office for National Statistics, 2017). There are limitations to this approach. Firstly, there is a definitional issue. Ministry of Justice data on the deaths of offenders under supervision includes ‘category of death’. Within this category there is a label of ‘self-in- flicted’. However, this is not necessarily the same defin- ition as used by the ONS nor the same definition of suicide used by the prison service. Moreover, in many cases the cause of death recorded by probation providers is ‘Apparent - on the basis of information received’ ra- ther than having been confirmed by a coroner’s inquest verdict or death certificate. That said, this is all we have. Secondly, our use of the number of people on the case- load as a means with which to calculate suicide rates may result in inaccurate data. We are using the caseload as a proxy measure for the annual average population as described by Sattar (2001). This allows for the comparison between three groups in question: offenders in the com- munity, people in prison, and the general population. Suicide rates and rate ratios of offenders who die when in the community To make comparisons with suicide rates in other con- texts we have calculated the suicide rate amongst people Phillips et al. Health and Justice (2018) 6:14 Page 4 of 12 T a b le 2 Su ic id e ra te an d ra te ra ti o o f p eo p le d yi n g b y su ic id e u n d er su p er vi si o n ,i n p ris o n an d in th e g en er al p o p u la ti o n To ta l n u m b er o f su ic id es o f o ff en d er s u n d er su p er vi si o n (2 01 0/ 11 – 20 15 /1 6) A n n u al su ic id e ra te (o ff en d er s in co m m u n it y) / 10 0, 00 0 A n n u al su ic id e ra te (p ris o n er s) / 10 0, 00 0 (F az el et al .2 01 7) A n n u al su ic id e ra te (g en er al p o p u la ti o n ) / 10 0, 00 0 ag ed 30 – 49 (O N S) Ra te ra ti o s Ra te 95 % C I Ra te 95 % C I Su p er vi si o n /p ris o n su ic id e ra te ra ti o Su p er vi si o n /g en er al p o p u la ti o n ra te ra ti o Pr is o n /g en er al p o p u la ti o n ra te ra ti o (F az el et al .2 01 7) 16 19 11 8 99 – 13 7 83 66 – 10 0 13 .6 1. 42 8. 67 6. 1 Phillips et al. Health and Justice (2018) 6:14 Page 5 of 12 under probation supervision using the total number self-inflicted deaths between 2010/11 and 2015/16 and calculated a mean suicide rate with 95% confidence in- tervals. This allows us to compare the suicide rate of of- fenders in the community with the suicide of people in prison, as calculated by Fazel et al. (2017). Table 2 shows that the suicide rate of offenders, regardless of age or gender, is both higher than that in prison (by a factor of 1.42) and the general population (by a factor of 8.67). This reflects findings from other research looking at similar populations (Sattar 2001). Gender and suicide Suicide rates are strongly correlated with gender with death rates from suicide being four-to-five times higher for men than for women across the European Union (OECD, 2018). Thus we have calculated suicide rates and rate ratios for men and women separately. Table 3 shows that the suicide rate for men under supervision in the community is 6 times higher than the general popu- lation whilst the rate ratio between men in prison and the general population is 3.9. Meanwhile, the rate ratio between women under probation supervision and the general population is 29.2 compared with a rate ratio be- tween women in prison and the general population of 8.9. The increased risk of suicide for women in prison has long been recognised (Sandler and Coles, 2018) and our analysis suggests that the risk for women offenders in the community is even higher. Age and suicide Age is strongly correlated with suicide, with men aged 40 to 44 having the highest age-specific suicide rate at 15.3 per 100,000 (Office for National Statistics, 2017). Tables 3 and 4 shows the age-specific rates for people under supervision compared with the equivalent age- specific rates in the general population. Table 4 shows that the suicide rate for all people under probation supervision is higher than the general popula- tion. The rate ratio between men aged 30–49 is the highest with a RR of 28. In Table 5 we see that women also present a higher a risk of suicide when under proba- tion supervision with particularly high rate ratios being present amongst women aged 30–39. However, these are small numbers and so must be treated with caution. Suicide rate according to sentence type In order to ascertain a link between sentence type and suicide rate we have calculated the suicide rate amongst men and women on different sentences. Table 6 shows the suicide rate broken down by gender and sentence type. It is not possible to break this down by age group due to small numbers. It is worth noting, however, that suicide rates are higher than the general population across all sentences, and that women serving a post-release sentence appear to face a particularly high risk, as also highlighted by Sandler and Coles (2018). Ethnicity The actual numbers of people dying by suicide when broken down by ethnicity are too small for meaningful analysis of suicide rates broken down by ethnicity. More- over, the Office for National Statistics does not collect suicide rates for ethnic groups and so rate ratios with the general population cannot be calculated. However, BAME groups are over-represented in the criminal just- ice system so this does require some analysis. Thus, we have compared the proportion of suicides that occur amongst different ethnic groups with the pro- portion of people in those ethnic groups under supervi- sion. There is no data available for the breakdown of people on license/post-release supervision and so this only refers to people on a Community Order or Sus- pended Sentence Order. Table 7 shows that white men account for 97% of all suicides but only 81% of the pro- bation caseload, suggesting that they are at higher risk than other groups. All the women who died by suicide in 2015/16 on a Community Order or Suspended Sentence Order were White despite this group making up 88% of the caseload. Despite being based on small numbers this reflects Pratt et al. (2006) finding that non-white ethnicity is a protective factor. Temporal trends in the risk of suicide As discussed previously, research by ourselves (Phillips et al. 2016) and others (Pratt et al., 2006) suggests there is an increased risk of suicide and other mortality soon after release from prison. In order to ascertain whether a similar increased risk exists for people after being sen- tenced to a community sanction (both Community Or- ders and Suspended Sentence Orders) we calculated the Table 3 Suicide rate of people under probation supervision compared with suicide rate of people in prison and in general population (2010/11–2015/16) Gender Suicide rate per 100,000 offenders under supervision (2015–16) Annual suicide rate Gen pop suicide rate/100,000 aged 30–49 Rate ratios Rate 95% CI Supervision/general population rate ratio Prison/general population rate ratio (Fazel et al. 2017) Men 105 95.2–115 18.8 5.6 3.9 Women 146 115–175 5 29.2 8.9 Phillips et al. Health and Justice (2018) 6:14 Page 6 of 12 time period after sentence that a death occurred, again using 2015/16 data. Figure 1 shows that the number of deaths per week after sentence decreases slightly over a period of a year suggesting that there does appear to be a slightly increased risk of suicide in the first weeks after sentence. Day of the week For interest, we are including a table which shows the number of deaths per day of the week. We used the date of death entered on the form completed by the offender manager to calculate the number of deaths that occurred on each day of the week for the whole of 2015/16. There are no clear differences here, except for the apparent in- crease towards the end of the week. We note that Tues- day shows a high number of deaths, but there is no apparent reason for this. We are left with a number of questions as to whether this is a ‘benefits’ day, or the day on which rent is due, or whether it is simply a day when the harsh realities of the week set in. There could be many reasons for this Fig. 2. Discussion Our analysis demonstrates that the suicide rate amongst people under probation supervision, including those serving a Community Order, Suspended Sentence Order or on licence/post-release supervision, is higher than the general population. Our review of the literature high- lights some of the reasons for this disparity. English law and practice is characterised by its complexity, and by frequency of change. In the last 40 years governments (of every political persuasion) have regularly changed the rules, policy and practice relating to sentences, especially those related to the supervision of offenders in the com- munity. This means that the collection of relevant data will have been affected by changes to policy, recording practices, the advent and abolition of organisations most notably the recent part-privatisation of probation which sees different organisations (a mixture of private public) being responsible for offenders who pose different risks. The implications of this are that the data collated by Her Majesty’s Prison and Probation Service are unlikely to paint a complete picture (Phillips et al. 2017). One hun- dred and twenty seven of the 725 deaths that were re- corded in 2015/16 are classified as ‘Unknown’ and in only 88 of the 264 self-inflicted deaths recorded in 2015/ 16 was the cause of death verifiable via an inquest ver- dict or death certificate. It is likely that self-inflicted deaths will have been under-recorded because of this. This is the most significant limitation of this analysis: that some deaths will not have been recorded at all, and that others will have been recorded wrongly. Moreover, we have included self-inflicted deaths by drug overdose in our analysis as it is not always known whether there was intent to kill oneself in these circumstances which may have inflated the rate. The decision to include these deaths was made on the basis of Fazel et al.’s (2017) study showing that the majority of countries do not re- quire intent to be proven for a classification of suicide to be recorded in statistics on deaths in prison thus enab- ling comparison with their analyses. We have been unable to calculate suicide rates for dif- ferent ethnic groups, nor would we have been able to compare these with the general population due to a lack of data from ONS. Moreover, the data do not allow for calculating suicide rates according to offence because of a lack of detail in the dataset (for example, 74 of the self-inflicted deaths in 2015/16 are listed as either ‘Other Summary Offence’ or ‘Other Indictable Offence’). As ar- gued by Fazel et al. (2017) this is an area for future Table 5 Age-specific suicide rates for women under probation supervision, 2015–16 Age banda Number of deaths by suicide by people under probation supervision (2015–16) Age specific suicide rate/ 100000 on caseload Age specific suicide rate in general population/100,000 Rate ratio 18–29 9 212.01 4.2 50.48 30–39 14 414.45 4.8 86.34 40–49 10 468.82 6.8 68.94 aAge groups 18–20, 21–24 and 25–29 have been combined due to low numbers and age groups 50–59 and 60+ have been removed due to low numbers Table 4 Age-specific suicide rates for men under probation supervision, 2015/16 Age banda Number of deaths by suicide by people under probation supervision (2015–16) Age specific suicide rate/100000 on caseload Age specific suicide rate in general population/100,000 Rate ratio 21–24 21 214.61 14.8 14.5 25–29 28 238.70 17.5 13.6 30–39 86 527.41 19 27.8 40–49 66 650.05 23.5 27.7 50–59 19 449.49 21 21.4 aAge groups 18–20 and 60+ have been removed due to low numbers Phillips et al. Health and Justice (2018) 6:14 Page 7 of 12 research as it is possible that the heterogeneity of the caseload leads to a dilution of high-risk groups. These are all important areas for future investigation but are contingent upon data being available. That said, we have calculated suicide rates for people on different sentences which might, at least, be used as a proxy measure for risk of harm if not risk of reoffending. In spite of these limitations, these data provide an up- dated understanding of the suicide rate amongst people on probation. The suicide rate amongst people under probation supervision is clearly higher than that of the general population and, it seems, of people in prison. However, they do little to highlight the issues which may explain the high level of mortality observed. Whether this is to do with the process of being under supervision is not clear. Whilst quantitative data on the numbers of deaths provides useful headline figures in regard to prevalence and general risk it does little to shed light on the under- lying causes of a self-inflicted death. We cannot tell which of the risk factors identified above are most preva- lent with this group, nor does it tell us what has been happening in an offender’s life prior to them dying by suicide. Thus there is scope for making greater use of these data. Firstly, it creates the potential for data matching to make the most of other data held by proba- tion providers and other government departments. For example, Delius, the case management system that is in use by all probation providers in England and Wales should be able to provide information on the extent of an offender’s engagement with their sentence in the run up to a suicide attempt. Through the use of a specific code at the expiration of a sentence it should become possible to identify who dies by suicide and then conduct analysis on their patterns of engagement. Ana- lysis of this kind could augment Borrill et al.’s (2017) findings that missed appointments appear to be corre- lated with subsequent suicide. Similarly, OASys assess- ments and OGRS scores would enable a much greater understanding of how risk of reoffending and harm in- teracts with the risk of suicide. Other health data, as col- lected by primary or secondary healthcare providers might also shed light on the extent to which risk factors correlated with suicide in the general population, such as mental ill health, hold up within this specific population. Secondly, there is much more scope for collecting data around the life stories of many of these people who died. One approach would be to adopt that taken by Borrill et al. (2017) as mentioned above, who looked at the cases of 28 service users who took their own lives in one large probation area between 2010 and 2013. They high- light the need for further awareness-raising amongst frontline probation staff of sharing crucial information; something that would be missed with high-level analysis of Delius records. An alternative would be to conduct interviews with people who have attempted suicide whilst on probation supervision, as per Mackenzie et al. (2018), or to speak with family members who have had a relative die whilst under supervision in the community. This would reflect the methodology adopted by the PPO following a death in custody or the EHRC when con- ducting their inquiry into the deaths of adults with men- tal ill health in custodial settings (EHRC, 2015). This methodological approach would allow for the collection of data which adds considerable depth and nuance to the necessarily abstract picture presented above. These additional forms of research would add to our under- standing of the risk of suicide at an individual level which, currently, HMPPS data is unable to address. However, it is likely there are ecological factors at play which influence the risk of suicide amongst people on probation. At this stage it is important to lay out the context in England and Wales. When an offender is re- leased from prison, or receives a community order, they will be subject to supervision. Radical change was intro- duced in 2014–15, when a significant part of the previ- ously publically funded Probation Trusts was privatised. Since the Offender Rehabilitation Act 2014 came into force on 1 February 2015 the number of offenders on post-release supervision has soared. Privately run Com- munity Rehabilitation Companies now carry out the ma- jority of probation work working with low and medium risk offenders whilst a newly created National Probation Service supervises high risk offenders. It was intended that CRCs would take around 70% of the work, leaving with NPS with 30% of the caseload to supervise. In real- ity the split is nearer 60:40. This has resulted in the NPS Table 7 Proportion of suicides completed by people under supervision according to ethnicity compared with proportion of caseload belonging to ethnic group, 2015–16 Ethnic group Proportion of all suicides amongst probationers completed by ethnic group (%) Proportion of probation caseload belonging to ethnic group (%) Asian 1.5 7 Black 1.5 7 Mixed 0.7 3 White 97 81 Unknown 2 2 Table 6 Suicide rate amongst people under probation supervision by sentence type Suicide rate/100000 on caseload (2015/16) Community Order Suspended Sentence Order License/ post-release Men 142.69 103.27 128.59 Women 156.28 86.51 206.53 Phillips et al. Health and Justice (2018) 6:14 Page 8 of 12 being overstretched whilst CRCs have received less in- come than anticipated and thus have struggled to pro- vide an adequate level of service (National Audit Office, 2016; HM Inspectorate of Probation, 2017). This is the context in which we must understand the deaths of people serving sentence supervised by an in- creasingly fragmented system. In addition to the struc- tural change to probation providers, it is important to note that the prison system in England and Wales is undergoing a turbulent time. HM Inspectorate of Prisons reports have consistently pointed to increased levels of drug use, a high incidence of mental ill health and low staffing levels (HM Inspectorate of Prisons, 2017). There has been a 20% increase in violence inside prisons in England and Wales (Ministry of Justice, 2017b). When considering the effect that this may have on people on post-release supervision it raises the possi- bility of these prison based issues influencing the risk of people dying by suicide upon release. There is a real gap in provision at the point of release. There have been several negative reports on Through the Gate (TTG) services provided by CRCs (HM In- spectorate of Probation, 2016, 2017; Taylor et al., 2017) whilst Padfield’s (2017a, 2017b) research into parole un- derscores the absence of suitable provision to which prisoners can be released. A joint inspection by the HM Inspectorates of Probation and Prisons found that 15% of prisoners leave prison without accommodation to go to and reported that they ‘did not see any innovative work by CRCs to make access to accommodation easier’ (HM Inspectorate of Probation, 2016: 22). Prisons have acknowledged that they are sending people out with a tent and sleeping bag or a ‘cold weather’ mountaineering blanket (HM Inspectorate of Prisons, 2016). Moreover, the 2017 Annual Report of the Chief Inspector of Proba- tion (HM Inspectorate of Probation, 2017) highlighted the increasing number of supervision sessions carried out with offenders on the telephone which will Fig. 2 Number of deaths per day of the week, 2015–16 Fig. 1 Number of deaths per week after sentence and cumulative percentage of self-inflicted deaths, 2015–16 Phillips et al. Health and Justice (2018) 6:14 Page 9 of 12 necessarily limit the potential for good quality assess- ment and support. Whilst our data cannot say whether these gaps in service provision upon release have a dir- ect impact upon the suicide rate it is an area which re- quires further investigation through analysis of specific cases. Healthcare is a key issue when it comes to the risk of suicide and subsequent prevention. As already discussed, people on probation have greater physical and mental health needs when compared with the general popula- tion (Brooker et al. 2012). This becomes ever more important when we consider the fact that the same re- search shows that ‘offenders’ engagement with health services was incommensurate with their likely level of need’ (Brooker et al. 2009: 45). What’s more, research into the commissioning of healthcare for people under probation supervision shows that ‘only 12 per cent of Mental Health Trusts provided a service to support ap- proved premises and just 32 per cent provided clinics in probation’ (Brooker et al. 2015). The provision of health- care to people serving a community sanction is clearly inadequate and may well contribute to the high suicide rate amongst this population. Offenders in the community cannot, and should not, be subject to the same level of supervision as those in prison. Criminal justice staff will have less ability to intervene and prevent some deaths. Else- where, we have made the case for an ‘ethic of care’ (Phillips et al. 2017). It is interesting to note that the official statistics comment that Offenders under supervision in the community (other than, to an extent, those occurring in approved premises) are not in the care of NOMS in the way they are when in custody. The influence probation officers have on offenders, in terms of their health and well-being, cannot be compared meaningfully to the influence staff working in prison have in relation to deaths in custody. (Ministry of Justice 2017a: 3) Whilst it may well be true that the ability of staff to in- fluence a person on the brink of suicide is much more limited in the community, we would urge the authorities to accept that they have responsibility here too. Given what is known about the vulnerabilities of many people under community supervision, much more could be done to support them. Hence the need for a much stronger ‘ethic of care’. Our final point is about justice. There is an emerging body of evidence which demonstrates that there are a distinct set of pains associated with being on probation (Hayes 2018). Indeed, McNeill has characterised penal supervision as a Malopticon which works to degrade ra- ther than construct positive identities: ‘in the Malopticon penal subjects suffer … the pain of not being seen; at least not as they would recognize themselves’ (2018: 19, emphasis in original). We would argue that the lack of attention paid to deaths in the community in terms of poor data, lack of independent investigation, inadequate healthcare provision and a less obvious duty of care is one of the most significant forms of the civic degrad- ation which, for McNeill (2018), is part and parcel of be- ing under penal supervision. That many of these deaths appear to be either ‘missing, ignored or unimportant’ raises questions about the ways in which the state achieves justice for offenders, victims and the communi- ties in which they reside. Conclusion This article has drawn on existing literature to show that the suicide rate amongst people under statutory proba- tion supervision is higher than the general population. The article has also highlighted some of the key risk fac- tors which might explain this relatively high mortality rate. We have then conducted new analysis on national data that were collected and collated by HMPPS on the number of people who have died by suicide by when under probation supervision. Despite the limitations in the data there is a clear finding that the suicide rate across all groups under supervision is higher than the general population. Women appear to be at higher risk, relatively speaking, than men. This, we argue, may be the result of a range of factors related to the system of probation supervision and healthcare provision in England and Wales. We have also pointed to some potential avenues for future research which take both quantitative and qualitative approaches. It is only a mixed approach which will enable a better under- standing of the risk factors within different groups. Once suicides by people under probation supervision receive the attention they deserve then practitioners and policymakers will be able to implement policies which serve to reduce the suicide rate amongst this already vulnerable group. Endnotes 1These are private probation providers that were intro- duced following the implementation of the Offender Rehabilitation Act 2014. For more on the potential im- plications of these reforms, see below. 2Offender Rehabilitation Act 2014: the Act of Parliament which allowed the division of probation services into pri- vately managed companies alongside the National Probation Service: see below. 3The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. Phillips et al. Health and Justice (2018) 6:14 Page 10 of 12 Funding This research was initially funded by the Equality and Human Rights Commission. The subsequent analysis, which is presented here, has received no additional funding. Availability of data and materials As the raw data were accessed via data sharing agreement between ourselves and the Ministry of Justice we cannot deposit the data in a public depository as this would be in breach of the data sharing agreement. However, some of the data are available on the publically available Ministry of Justice website here: https://www.gov.uk/government/statistics/deaths-of-offenders-in-the- community-annual-update-to-march-2017 Authors’ contributions JP completed the analyses presented in the findings section and wrote the first draft of the interpretations. He also wrote and redrafted sections of the literature review and discussion, and revised the manuscript for intellectual content. NP wrote the initial draft of the literature review and discussion, interpreted the findings, and drafted and revised subsequent versions of the manuscript for intellectual content. LG interpreted the findings, wrote sections of the literature review and discussion and drafted and revised subsequent versions of the manuscript for intellectual content. All authors read and approved the final version of the manuscript. Ethics approval and consent to participate This research was approved by the Faculty Research Ethics Committee at Sheffield Hallam University. Reference number: 183-PHI. Consent for publication The data presented in the article were collated by the Ministry of Justice and passed to us through a data sharing agreement. We have consent to publish these analyses for the purpose of improving policy and practice around the prevention of deaths amongst offenders in the community. Competing interests The authors declare that they have no competing interests. Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Author details 1Department of Law and Criminology, Sheffield Hallam University, Heart of the Campus, Collegiate Crescent, Sheffield S10 2BQ, England. 2Faculty of Law, University of Cambridge, West Road, CB3 9DZ Cambridge, England. 3Institute of Criminology, University of Cambridge, Sidgwick Avenue, Cambridge CB3 9DA, England. Received: 16 May 2018 Accepted: 3 August 2018 References Arsenault-Lapierre, G, Kim, C, Turecki, G. (2004). Psychiatric diagnoses in 3275 suicides: A meta-analysis. BMC Psychiatry, 4(37). Biles, D, Harding, R, Walker, J (1999). The death of offenders serving community correction orders. In Trends and issues in crime and criminal justice. No.107. Canberra: Australian Institute of Criminology. Binswanger, IA, Blatchford, PJ, Lindsay, RG, Stern, MF. (2011). Risk factors for all-cause, overdose and early deaths after release from prison in Washington state. Drug and Alcohol Dependence, 117, 1–6. Borrill, J, Cook, L, Beck, A. (2017). Suicide and supervision: Issues for probation practice. Probation Journal, 64(1), 6–19. Brooker, C, & Sirdifield, C. (2013). An investigation into the prevalence of mental health disorders in an English probation population: an overview. Eurovista: Probation and Community Justice, 2(3), 154–160. Brooker, C, Sirdifield, C, Blizard, R, Denney, D, Pluck, G. (2012). Probation and mental illness. The Journal of Forensic Psychiatry & Psychology, 23(4), 522–537. Brooker, C, Syson-Nibbs, L, Barrett, P, Fox, C. (2009). Community managed offenders’ access to healthcare services: Report of a pilot study. Probation Journal, 54(1), 45–59. Brooker, C, Sirdifield, C, Ramsbotham, D, Denney, D. (2015). NHS commissioning in probation in England: On a wing and a prayer. Health and Social Care in the Community, 25(1), 137–144. Canton, R (2008). Working with mentally disordered offenders. In S Green, E Lancaster, S Feasey (Eds.), Addressing offending behaviour: Context, practice, values, (pp. 318–343). Cullompton: Willan Publishing. Cook, LC, & Borrill, J. (2015). Identifying suicide risk in a metropolitan probation trust: Risk factors and staff decision making. Legal and Criminological Psychology, 20(2), 255–266. Denney, D, Brooker, C, Sirdifield, C. (2014). Mental disorder and probation policy and practice: A view from the UK. International Journal of Law and Psychiatry, 37(5), 484–489. Equality and Human Rights Commission (2015). Preventing deaths in detention of adults with mental health conditions. Manchester: Equality and Human Rights Commission. Fazel, S, Ramesh, T, Hawton, K. (2017). Suicide in prisons: An international study of prevalence and contributory factors. The Lancet Psychiatry, 4(12), 946–952. Gelsthorpe, L, Padfield, N, Phillips, J. (2012). Deaths on probation: an analysis of data regarding people dying under probation supervision; a report for the Howard league for penal reform. London: The Howard League. Hayes D. (2018). Experiencing penal supervision: A literature review. Probation Journal, https://doi.org/10.1177/0264550518790660. HM Inspectorate of Prisons (2016). Report on an unannounced inspection of HMP & YOI Bronzefield. London: HM Inspectorate of Prisons. HM Inspectorate of Prisons (2017). HM chief inspector of prisons for England and Wales annual report. London: HM Inspectorate of Prisons. HM Inspectorate of Probation (2016). An inspection of through the gate resettlement Services for Short-Term Prisoners: A joint inspection by HM inspectorate of probation and HM inspectorate of prisons. London: HM Inspectorate of Probation. HM Inspectorate of Probation (2017). 2017 Annual Report. London: HM Inspectorate of Probation. King, C, Senior, J, Webb, RT, Millar, T, Piper, M, Pearsal, LA, Humber, N, Appleby, L, Shaw, J. (2015). Suicide by people in a community justice pathway: Population-based nested case–control study. The British Journal of Psychiatry, 207(2), 175–176. Mackenzie, JC, Cartwright, T, Borrill, J. (2018). Exploring suicidal behaviours by probation clients-a qualitative near-lethal study. Journal of Public Health, 40(1), 146–153. Mackenzie, J-M, Borrill, J, Dewart, H. (2013). Researching suicide, attempted suicide and near-lethal self-harm by offenders in community settings: Challenges for future research. International Journal of Forensic Mental Health, 12(1), 26–32. McNeill, F. (2018). Mass supervision, misrecognition and the ‘Malopticon. Punishment & Society. https://doi.org/10.1177/1462474518755137. Mills, K. (2004). Reducing drug-related deaths: The responsibility of NOMS? Probation Journal, 51(4), 407–414. Ministry of Justice (2014). Reviewing and Reporting Deaths of Offenders under Probation Supervision. PI 01/2014. London: Ministry of Justice https:// www.researchgate.net/profile/Dina_Gojkovic/post/Where_can_data_on_ suicide_in_probation_be_obtained/attachment/ 59d63733c49f478072ea4ac4/AS%3A273683585667073%401442262660075/ download/pi-01-2014-reviewing-and-reporting-deaths-of-offenders-1.doc. Ministry of Justice (2016a). Deaths of offenders in the community annual statistics bulletin 2015 to 2016. London: Ministry of Justice. Ministry of Justice (2016b). Probation: 2016. London: Ministry of Justice https:// www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 633168/probation-2016.xlsx [last accessed 14 May 2018. Ministry of Justice (2017a). Deaths of offenders in the community, annual update to march 2017. London: Ministry of Justice. Ministry of Justice (2017b). Safety in custody statistics bulletin, England and Wales, deaths in prison custody to march 2017, assaults and self-harm to December 2016. London: Ministry of Justice. National Audit Office (2016). Transforming rehabilitation. London: National Audit Office Retrieved from https://www.nao.org.uk/report/transforming- rehabilitation/. OECD (2018), Suicide rates (indicator), doi:https://doi.org/10.1787/a82f3459-en [accessed on 14 May 2018]. Office for National Statistics (2017). Suicides in the UK: 2016 registrations. London: Office for National Statistics. Padfield, N. (2017a) Parole Board oral hearings 2016 – exploring the barriers to release: avoiding or managing risks? Report of a Pilot Study University of Cambridge Faculty of law research paper no. 62/2017. Phillips et al. Health and Justice (2018) 6:14 Page 11 of 12 https://www.gov.uk/government/statistics/deaths-of-offenders-in-the-community-annual-update-to-march-2017 https://www.gov.uk/government/statistics/deaths-of-offenders-in-the-community-annual-update-to-march-2017 https://doi.org/10.1177/0264550518790660 https://doi.org/10.1177/1462474518755137 https://www.researchgate.net/profile/Dina_Gojkovic/post/Where_can_data_on_suicide_in_probation_be_obtained/attachment/59d63733c49f478072ea4ac4/AS%3A273683585667073%401442262660075/download/pi-01-2014-reviewing-and-reporting-deaths-of-offenders-1.doc https://www.researchgate.net/profile/Dina_Gojkovic/post/Where_can_data_on_suicide_in_probation_be_obtained/attachment/59d63733c49f478072ea4ac4/AS%3A273683585667073%401442262660075/download/pi-01-2014-reviewing-and-reporting-deaths-of-offenders-1.doc https://www.researchgate.net/profile/Dina_Gojkovic/post/Where_can_data_on_suicide_in_probation_be_obtained/attachment/59d63733c49f478072ea4ac4/AS%3A273683585667073%401442262660075/download/pi-01-2014-reviewing-and-reporting-deaths-of-offenders-1.doc https://www.researchgate.net/profile/Dina_Gojkovic/post/Where_can_data_on_suicide_in_probation_be_obtained/attachment/59d63733c49f478072ea4ac4/AS%3A273683585667073%401442262660075/download/pi-01-2014-reviewing-and-reporting-deaths-of-offenders-1.doc https://www.researchgate.net/profile/Dina_Gojkovic/post/Where_can_data_on_suicide_in_probation_be_obtained/attachment/59d63733c49f478072ea4ac4/AS%3A273683585667073%401442262660075/download/pi-01-2014-reviewing-and-reporting-deaths-of-offenders-1.doc https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/633168/probation-2016.xlsx https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/633168/probation-2016.xlsx https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/633168/probation-2016.xlsx https://www.nao.org.uk/report/transforming-rehabilitation/ https://www.nao.org.uk/report/transforming-rehabilitation/ https://doi.org/10.1787/a82f3459-en Padfield N (2017b) Parole Board oral hearings 2016–2017 – exploring the barriers to release, Stage Two of an Exploratory Study. University of Cambridge Faculty of Law Research Paper No. 63/2017. Phillips, J, Gelsthorpe, L, Padfield, N, Buckingham, S. (2016). Non-natural deaths following prison and police custody. London: Equality and Human Rights Commission. Phillips, J, Gelsthorpe, L, Padfield, N. (2017). Non-custodial deaths: Missing, ignored or unimportant? Criminology & Criminal Justice, https://doi.org/10. 1177/1748895817745939. Pratt, D, Piper, M, Appleby, L, Webb, R, Shaw, J. (2006). Suicide in recently released prisoners: A population-based cohort study. The Lancet, 368, 119–123. Pritchard, C, Cox, M, Dawson, A. (1997). Suicide and “violent” death in a six-year cohort of male probationers compared with pattern of mortality in the general population: Evidence of accumulative socio-psychiatric vulnerability. Journal of the Royal Society of Health, 117(3), 180–185. Sandler, M, & Coles, D (2018). Dying on the inside: Examining women’s deaths in prison. London: Inquest. Sattar, G (2001). Rates and Causes of Death Among Prisoners and Offenders Under Community Supervision. In Home Office research study no. 231. London: Home Office. Singleton, N, Pendry, E, Taylor, C, Farrell, M, Marsden, J (2003). Drug related mortality among newly-released offenders. London: Home Office. Solomon, E. and Silvestri, A. (2008) Community Sentences Digest. Available at: http://www.crimeandjustice.org.uk/communitysentencesdigest2008.html Taylor, S, Burke, L, Millings, M, Ragonese, E. (2017). Transforming rehabilitation during a penal crisis: A case study of through the gate services in a resettlement prison in England and Wales. European Journal of Probation, 9(2), 115–131. Webb, RT, Qin, P, Stevens, H, Mortensen, PB, Appleby, L, Shaw, J. (2011). National Study of suicide in all people with a criminal justice history. Archives of General Psychiatry, 68(6), 591–599. Phillips et al. Health and Justice (2018) 6:14 Page 12 of 12 https://doi.org/10.1177/1748895817745939 https://doi.org/10.1177/1748895817745939 http://www.crimeandjustice.org.uk/communitysentencesdigest2008.html Abstract Background Methods Results Conclusions Background What do we already know about suicide in community justice settings? Prevalence Trends and themes within English and welsh official data Risk factors Methods Suicide rates and rate ratios of offenders who die when in the community Gender and suicide Age and suicide Suicide rate according to sentence type Ethnicity Temporal trends in the risk of suicide Day of the week Discussion Conclusion These are private probation providers that were introduced following the implementation of the Offender Rehabilitation Act 2014. For more on the potential implications of these reforms, see below. Funding Availability of data and materials Authors’ contributions Ethics approval and consent to participate Consent for publication Competing interests Publisher’s Note Author details References 
work_j6mvxaodungixpikyn5qeh4mhi	----	Ethics & Global Politics: Vol 14, No 1 Log in  |  Register Cart Home All Journals Ethics & Global Politics List of Issues Volume 14, Issue 1 Ethics & Global Politics An open access journal Publishes research on ethics and global politics, exploring environmental protection, policy development, poverty, technology and knowledge, migration and more. Search in: This Journal Anywhere Advanced search Submit an article New content alerts RSS Citation search Citation search Current issue Browse list of issues Explore Top About this journal Journal metrics Aims and scope Instructions for authors Journal information Editorial board News & offers Editorial policies Latest articles See all volumes and issues Volume 14, 2021 Vol 13, 2020 Vol 12, 2019 Vol 11, 2018 Vol 10, 2017 Vol 9, 2016 Vol 8, 2015 Vol 7, 2014 Vol 6, 2013 Vol 5, 2012-2013 Vol 4, 2011 Vol 3, 2010 Vol 2, 2009 Vol 1, 2008 Login or register to access this feature Have an account? Login nowDon't have an account? Register for free Register a free Taylor & Francis Online account today to boost your research and gain these benefits: Download multiple PDFs directly from your searches and from tables of contents Easy remote access to your institution's subscriptions on any device, from any location Save your searches and schedule alerts to send you new results Choose new content alerts to be informed about new research of interest to you Export your search results into a .csv file to support your research Register now or learn more Download citations Choose format RIS (ProCit, Reference Manager) BibTeX RefWorks Direct Export Download citations Download citations Download PDFs Browse by section (All) Display order (Default) Published online date Page number Section A-Z Most read Most cited Ethics & Global Politics, Volume 14, Issue 1 (2021) Issue In Progress Original Article Article What Kind of Functionings Matter for Global Justice for Children? Gottfried Schweiger Article: 1873576 Published online: 19 Jan 2021 Abstract | Full Text | References | PDF (318 KB) | Permissions  610Views 0CrossRef citations Altmetric Review Article review article Beyond lockdown? The ethics of global movement in a new era Guy Aitchison Published online: 04 Mar 2021 Abstract | Full Text | References | PDF (300 KB) | Permissions  563Views 0CrossRef citations Altmetric Explore Most read articles Most cited articles Multimedia Information for Authors Editors Librarians Societies Open access Overview Open journals Open Select Cogent OA Dove Medical Press F1000Research Help and info Help & contact Newsroom Commercial services Advertising information All journals Books Keep up to date Register to receive personalised research and resources by email Sign me up Taylor and Francis Group Facebook page Taylor and Francis Group Twitter page Taylor and Francis Group Linkedin page Taylor and Francis Group Youtube page Taylor and Francis Group Weibo page Copyright © 2021 Informa UK Limited Privacy policy Cookies Terms & conditions Accessibility Registered in England & Wales No. 3099067 5 Howick Place | London | SW1P 1WG Accept We use cookies to improve your website experience. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. By closing this message, you are consenting to our use of cookies. 
work_j7ljgof3vvhvldtf6faugthtna	----	Cover the eyes of Lady Justice: An appeal for double‐blind peer reviewing: EMBO reports: Vol 4, No 8 Skip to Article Content Skip to Article Information 
work_jay62wt7bfeptgfsq775lghtly	----	Microsoft Word - 7 Dewhurst.docx Journal of Social Science Education Volume 15, Number 4, Winter 2016 DOI 10.2390/jsse-v15-i4-1449 50 Marit Dewhurst is the Director of Art Education and Assistant Professor of Art and Museum Education. Her research and teaching interests include social justice education, community-based art, anti- bias/multicultural education, youth empowerment, and the role of the arts in community development. City College of New York, 160 Convent Avenue, New York, NY 10031, Email: mdewhurst@ccny.cuny.edu Dipti Desai is an Associate Professor and Director of the Graduate Art + Education Programs. She has published widely in the area of critical multiculturalism/critical race theory in art education, contemporary art as a pedagogical site, art and social justice. She received the 2012 Ziegfield Service Award in Art Education and Specialist Fulbright Award in 2014. New York University, New York, NY 10003, Email: dd25@nyu.edu Marit Dewhurst, Dipti Desai Interviewing as a Pedagogical Tool in Arts for Social Justice: A Case Study of an Afterschool Arts Program - As a pedagogical tool interviewing can help to develop skills as creative agents for social change. - Interviewing capabilities are useful in creating art. - Interviewing can be seen as a foundation for artistic visions of the world. Purpose: The rise of out-of-school youth arts organizations, especially those dedicated to addressing social issues with young people, suggests a growing need for spaces in which we prepare young people to creatively and critically shape their communities. While the popularity of these programs is certainly positive, it does little to tell us what pedagogical lessons we might learn from how youth arts organizations approach social justice teaching in the arts. In order to understand what it takes to do social justice art education, our research team investigated the pedagogical strategies used by Center for Urban Pedagogy, an out-of-school youth arts organization. Method: Through qualitative interviews, observations, and document analyses, this case study examined the specific pedagogical strategies used by educators in the Center for Urban Pedagogy’s (CUP) Urban Investigations program to engage young people in creating art for social justice aims. Findings: Our initial findings revealed that the process of interviewing is at the center of CUP’s approach to both social engagement and art-making. According to our research, interviewing reveals hidden layers of meaning to learners, offers opportunities to visualize personal connections, and provides a means to critically and collaboratively create artwork. Keywords: Art education, ethics, civic literacy, compositional analysis, attitudes 1 Introduction In an office in Astoria Energy in New York City, five teenagers and two educators from the Center for Urban Pedagogy’s Urban Investigations program sit around the desk of the Manager; one holds a microphone, another a notepad, and another a video camera. A bit quietly at first, they ask questions: “Why did the city choose to build a power plant here? Where do you get fuel to run the generators?” As the conversation progresses and the young interviewers seem less inhibited and more pro- bing; the Manager responds in kind with complex respon- ses to their increasingly pointed questions. When the camera is finally turned off, they exit the small office and head off for a walking tour of the electricity plant. They take photographs as they walk around the plant and continue to ask questions about the various parts of the plant from transformers to generators as they head back to turn their findings into art. On paper, social justice art education—the pedagogical process that engages young people in creating art to dismantle systems of inequality—sounds promising. As many educators and artists declare, it can be a tremen- dous means through which youth can develop the critical and creative thinking skills to actively participate in the remaking of our society (Dewhurst, 2014). However, when it comes to what the actual work entails, this emancipatory approach to art education can appear more daunting. What pedagogical tools do educators in social justice arts use in their teaching? And what impact do these strategies have on the young people with whom they work, the artwork they create, and the change they aspire to create? While many school-based arts edu- cators have found successful ways to integrate social justice art-making into their curricula, those working outside of schools often have more leeway to experiment with how best to engage young people in this work. The rise of out-of-school youth arts organizations, especially those dedicated to addressing social justice justice issues with youth, suggests a growing need for spaces in which we prepare young people to creatively and critically shape their communities (Dewhurst, 2014; Smyth & Stevenson, 2003; Seidel, et. al., 2009). While the popu- larity of these programs is positive, it does little to tell us what pedagogical lessons we might learn from how youth arts organizations approach social justice teaching in the arts. Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 51 In an effort to better understand what it takes to do social justice art education, our research team set out to investigate the pedagogical strategies used by one out-of- school youth arts organization. Selected as a site based on their stated commitment to using art to engage parti- cipants in civic engagement, Center for Urban Pedagogy (CUP) has a well-recognized history of working with youth to empower them as agents of change in their own communities. In 2015, CUP’s Urban Investigations pro- gram was awarded the National Arts and Humanities Youth Program Award, the country’s highest achievement for quality programming in the arts. Through obser- vations and interviews with educators and youth working in the Urban Investigations program, we applied case study methodology to examine the specific pedagogical strategies used by educators to engage young people in creating art for social justice aims. Our initial findings revealed a complex set of philosophical stances and actual teaching tools, however, upon closer analysis of the data, it became clear that the process of interviewing is at the center of CUP’s approach to both social engage- ment and art-making. Given this finding, this paper focuses on the act of interviewing as a creative and critical strategy in social justice art education. We begin with an overview of how interviewing is used as a pedagogical tool in education and as a means of both re- search and creation in contemporary art practices today. Shifting to the case study data, we move this analysis of interviewing from the realm of professional artists to that of the youth involved in a social justice art education program. A thorough examination of the nature of the interviewing process at CUP enabled us to determine how interviewing functions as a pedagogical and aesthetic tool for the kind of critical learning, empower- ing teaching, and socially engaged art-making required of social justice arts education. 2 Interviewing as a pedagogical tool and guiding philosophy From the everyday examples of interviewing that we encounter daily—journalists interviewing a witness to an event, researchers interviewing participants, and talk show hosts interviewing celebrities—we know that inter- viewing generally consists of someone with questions (preferably critical ones), and someone with responses (preferably informed ones). But interviewing viewed through an educational lens takes on a slightly different hue; as a pedagogical tool, interviewing can serve as an important process for fostering inquiry, empowerment, and critical analysis. Because of this, interviewing and other forms of fieldwork have been used as teaching tools in several non-arts settings, including social studies classrooms and media literacy programs (Soep, 2006; Cammarota and Fine, 2008). As founder of the Educational Video Center, a youth media program, Steve Goodman (2003) describes, interviewing allows students to interact with primary sources, evaluate different infor- mation sources, and develop their own lines of inquiry: “At its most basic, the students’ inquiry begins with and spirals out of the act of questioning, as all inquiry does. But for questions to eventually lead to answers—and perhaps new questions—inquirers must learn where and how to gather information. They need to learn how to assess the reliability of the information they obtain, and finally how to interpret and integrate the new data into their existing frameworks of knowledge and experience. This is funda- mentally a social and intellectual process…. (p. 48) Recently, a number of researchers (Cahill, 2007; Cahill, & Hart, 2007; Cammarota & Fine, 2008) have also in- volved youth in conducting formal interviews as part of participatory action research projects, connecting young people with professional practices of data collection and analysis. Likewise, educators in folk arts education and geography have pointed to the multiple purposes for including interviewing and other forms of fieldwork in K- 12 schools (Job, et. al, 1999; Bowman & Hamer, 2011). In these cases, interviewing serves as an engaging teaching strategy to empower youth to participate in the living worlds around them. As one of the teaching artists at CUP states, “it's learning through experience. So they are actually investigating, rather than reading, like the traditional ways of learning.” i In addition to building basic listening, questioning, and research skills, our research highlights that interviewing connects closely to some of the key characteristics of effective social justice art education—both in theory and in practice—to facilitate an emancipatory and critical learning experience for all participants. 3 Interviewing and Contemporary Art Practices Our initial findings of the importance of interviewing in CUP’s youth arts programming inspired us to examine similar practices in the professional art world. CUP’s pedagogical approach to conduct video interviews with stakeholders in the field as an integral component of their artistic process echoes the work of many contem- porary artists who go out into the “field” to collect data— in the form of audio and video recordings, photographs, maps, etc.—to gain a better understanding of a situation or topic. Although such fieldwork is a central component of anthropology, journalism, and sociology, increased attention in recent years has focused on the connection between fieldwork in anthropology and contemporary art (Coles, 2000; Desai, 2002; Foster, 1996; Schneider & Wright, 2010) and more recently to the relationship between journalism and contemporary art (Cramerotti, 2009). Since the 1980s, artists such as Martha Rosler, Haans Haccke, Alfredo Jaar, Trevor Paglan, and Ashely Hunt, have drawn on field-based research to convey “artistic information” (Cramerotti, 2009, p. 30). Their artworks do not simply represent the information they have collected, but instead ask us to question information, thereby igniting the power of pedagogy. In comparison to journalists Cramerotti (2009) indicates, “What artists can do better is to construct a self- reflective medium, which ‘coaches’ its viewers to ask relevant questions by themselves, instead of accepting Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 52 (or refusing tout court) representations as they are proposed” (p, 30). In the words of artists, Allora and Calzadilla (2003): “art has much to offer…in its potential to provoke the public into a space of individual questioning about a parti- cular subject, about preconceived notions of truth, about forms of representation, participation, identification, etc. ... At that point it is up to each individual to decide if this self- questioning will play itself out at a political level, at a union level, at an aesthetic level, at a cultural level, or sexual level, and so on (p. 89). Invoking a more participatory approach to viewing artwork, these works of art serve as avenues for learning and active engagement with information—a far cry from more conventional passive art viewing. One example of such fieldwork-based artworks is the video, Under Discussion (2005) by Allora and Calzadilla, where conducting interviews serve as the material and medium that the artists employ in their art practice. Seeing that the discussion about the future of the island of Vieques (Puerto Rico) was deadlocked due to different interests of various constituencies, Allora and Calzadilla decided to open a space for discussion, dialogue, and debate through their artwork. The one voice that was not even part of the formal discussion regarding the future of Vieques was that of the local people who had been directly affected by decades of U.S. militarization. Lite- rally turning a table over and attaching a motor, thus making it into a functional boat, the artists hired a local boatman to take them along the coast of Vieques to interview both fisherman and local people living on this island about the changes they had experienced since the U.S. took over the island as a military base as well as what they envision for their land and communities. The video is not only a visual representation of their journey along the coast, but by drawing on the metaphor of the discussion table as a place to bring various people to the table to talk, their art project in both form and content offered a pedagogical space for questioning and thinking about who makes decisions for whom. Rachel Wetzler (2012) suggests that the move by many contemporary artists to engage in “artistic fieldwork” allows them to “investigat[e] aspects of their lives and interests by merging the apparent objectivity of documentary forms and anthropological research with a plainly subjective, flexible approach, drawing on multiple methodologies and discourses” (para # 3). Viewed from a different angle, fieldwork as a practice is a form of art— akin to the kinds of social practices popular today. Requiring face-to-face contact with people, this embo- died experience warrants learning how to read body language, therefore allowing for different ways of knowing that are connected to physical and social modes of communication (Taussig, 2008). Moving beyond con- ventional art materials and techniques, this move in social practice art includes a wider spectrum of ways of making art. “Aesthetic journalism” provides another lens to analyze and discuss the use of interviews as both artistic medium and artistic process. Aesthetic journalism involves “artistic practices in the form of investigations of social, cultural or political circumstances” (Cramerotti, 2009, p. 21). Cramerotti writes “it is rather the capacity of an art form to put our sensibility in motion, and convert what we feel about nature and the human race into concrete (visual, oral, bodily) experience” (p. 21) that makes it relevant for journalism. Although journalism and art have always had a relationship as journalists use photographs, videos, and graphic images to convey information and as a form of witnessing, images tend to be presented as objective truths and neutral knowledge. Today we know that all information conveyed through the documentary format is always mediated. Artists can then deliberately play with the ways they mediate the information they collect from fieldwork. Contemporary artists using inves- tigative methods in their practice disrupt traditional journalism’s use of mimetic aesthetic traditions as a mark of objectivity and its privileging of the visual as neutral or unbiased information. In doing so, these artists create works that challenge viewers to question the status quo and their role within it. Interviewing––and other forms of fieldwork––as a me- dium for making art, aligns with practices in social justice art education which require critical engagement with real life issues. The pursuit and organization of information that interviewing allows for makes it a prime tool for interrogating issues of inequality in ways that reveal the underlying structures of injustice. Combined with crea- tive expression, this use of interviewing can serve as a potent strategy for social justice art. Just as professional artists have drawn on interviews to develop the critical nature of their artwork, our research revealed that young people at CUP used similar tactics to create their art. 3 Research overview Working with a small research team, we—the primary investigators and authors—conducted a qualitative study of the pedagogical strategies used to create works of social justice artwork with small groups of youth involved in out-of-school programs. Comprised of two university professors with expertise in social justice art education, youth development, and contemporary art practices and one research assistant with experience as an art teacher both in and out of school settings, our research team brought a critical insider eye to the analysis of the data on learning in the Urban Investigations. Through a series of interviews and observations, our research sought to identify the specific teaching and learning tools required of social justice art education. 3.1 Participants Based in Brooklyn, New York, The Center for Urban Pedagogy (CUP) uses art and design as tools to facilitate civic engagement and impact public policy. Specifically, CUP states that their projects seek to “demystify the urban policy and planning issues that impact our commu- nities, so that more individuals can better participate in Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 53 shaping them” (welcometocup.org/About). CUP’s Urban Investigations programs match small groups of teens with a teaching artist to examine a real life issue about how the city works from multiple perspectives in order to cre- ate a work of art for the public. Previous Urban Investigation programs have explored issues such as food distribution, high school application processes, waste treatment systems, and internet ownership (welcome tocup.org/Projects/ UrbanInvestigations). Each multi- week investigation begins with a key question, for example, “Where does our water come from?” “Where does our garbage go?” Students and teachers together launch their exploration of the key questions first by reading both academic and popular articles that provide a foundational understanding of the issue at hand. Through discussions and art-making activities, youth participants and adult staff generate a list of potential stakeholders to interview for additional information. Equipped with professional recording equipment and basic training in interviewing techniques that covers developing questions, asking follow-up questions, and active listening, youth participants conduct interviews of policy makers, local government officials, community leaders, and engaged citizens. Youth then work closely with the teaching artists to turn the content and experi- ences of their interviews into works of art for public distribution. These investigations have resulted in short videos, posters, and websites for distribution across the city (and beyond). Our research project focused on two separate Urban Investigations that took place over three months during the summer of 2011: one investigation focused on learning about the infrastructure of electricity in the city and the second focused on the NYC Fair Share policy. Youth participants for the Power Trip project that investigated the infrastructure of electricity in NYC inclu- ded four high school aged youth, one adult lead teaching artist and one adult assistant teaching artist. As they researched how energy flows through the city, parti- cipants in this Urban Investigation met with officials at a local utility company headquarters, an upstate trans- mission monitoring center, and visited several power plants. Prioritizing primary source data collection over today’s typical turn to the internet enables youth to develop public speaking, inquiry, contextualizing, and professional communication skills. In addition, these experiences put youth in direct conversation with the real life decision makers that are connected to their own urban communities--a move that engages young people directly with those in power. Youth and the adult facilitators then used information gathered during these interactions to create a multi-lingual poster and book that has been distributed by local libraries, at several formal presentations throughout the city, and received special mention from a professional design association (CUP Power Trip website, 2015). Following a similar trajectory, participants in the Share, Where? project included ten high school aged youth from the Bronx, one adult lead teaching artist, and one adult assistant teaching artist who “teamed up to find out how New York City decides where to put the burdensome, smelly, and dangerous facilities that make the city run—but nobody wants in their backyards,” (CUP Share, Where? website, 2015). Over the course of the Share, Where? project participants met with sanitation workers, environmental justice advocates, an anti-waste facility neighborhood group, and policymakers behind the Fair Share legis- lation. Drawing on their research with these primary sources, the team of youth and teaching artists created a visually-rich book that has been distributed and used by local community groups to educate people about the Fair Share policy. Resulting creative design products from each Urban Investigation continue to be shared through CUP’s ongoing community-building and policy education programs. 3.2 Data Collection & Analysis The qualitative methods of interviews, participant obser- vations, and document analysis enabled us to collect significant data about the pedagogical strategies at play in the two Urban Investigations. The collected data inclu- ded interviews with each educator, assistant educator, and almost all of the youth participants, observations of the working sessions, and document analysis of the training guides, artwork produced, and CUP’s program literature. This rich array of data allowed us to triangulate our findings as we compared the responses of the teaching artists with those of the youth participants and the documents and artwork that emerged from their process. To analyze this data, we drew upon grounded theory methodology (Glaser & Strauss, 1967) to use an iterative coding strategy in which we elicited emic codes from the data and then layered in etic coding to compare the data with dominant literature in social justice art education. The findings that emerged from this qualita- tive process highlight the important role of interviewing at CUP. The following discussion of these findings points to the many ways in which interviewing can be used as an effective pedagogical and philosophical tool in social justice art education. 4 Findings Throughout our analysis of the nature of social justice art education at CUP, the process of interviewing rose again and again as a core pedagogical strategy. A closer analysis of this tool reveals that it functions as both as a specific teaching and learning tool and as a philosophical guide to shape the very curriculum at CUP. In our research, it became clear that interviewing is a far more complex arts learning activity than first assumed, contributing to the criticality and shifting power dynamics required of effec- tive social justice art education. To better understand the multifaceted role that interviewing plays at CUP and, potentially in social justice art education broadly, we identify the key contributions it fostered among youth and adult participants. Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 54 4.1 Revealing what is real (but often hidden) in the world Including fieldwork as part of the artistic process allows students to contextualize the knowledge they are learning and connect it to the real world (Fuller, 2006). In the case of social justice based art education it helps students to understand how our society is structured and who makes decisions that impact our daily lives, but also to question how and who created these structures. As described above, CUP’s Urban Investigations prioritize interviewing as a tool for conducting primary source research as much of the experience is based on what one teaching artist described as “doing actually real inves- tigation.” This real-world connection is a vital component of the process. As one teaching artist explains, “they are learning how to ask the questions and they are feeling empowered that way. ... It's like ok, this is information that we actually got, it's not in a textbook. You know we've read a few things and we are actually going and asking these questions. I think that's the really exciting thing that the CUP program does…. I read this in a textbook, but now we are actually going, you know to this place that it talked about. We are going to actually experience this and then report back on our views of this experience. The emphasis on “actually” throughout this reflection highlights how unique and transformative it is to have direct engagement with information for both youth and teaching artists. As they directly interact with information through their interviews, youth are participating in a form of experien- tial education, a kind of learning with a constructivist view of knowledge. Experiential learning calls for an un- derstanding of knowledge as a fluid process that requires negotiation, flexibility, learning and unlearning, and is always subjective (Duckworth, 1987; Dewey, 1980). As one of the teaching artists indicates, “most of the things we learn together when we are in interviews talking to people in the field and we learn things that we might not have thought of before and this may lead us to change our ideas.” This fluidity echoes the process of making art in which artists reiterate ideas until they are satisfied with a final product. In this way, the interviewing process and the art-making process provide parallel avenues to revisit and re-interpret information as youth deepen their understanding of the topic under study. As this teaching artist continued, “it's challenging because they are not used to doing things like [CUP] do[es]....So we are thinking differently, we are doing these puppets or we are doing this drawing or these collages and they make sense to whatever we are doing but, you know, it's, you taking information in a different way. The interviews in the Urban Investigations, much like the work of contemporary artists, provide young artists with opportunities for direct engagement with primary source information. Similarly, these interviews open up spaces to navigate the messiness and often-shifting nature of information about civic and social issues. In doing so, they expose the complex reality of the structures that shape our society––particularly those structures that are hidden or opaque to casual observation. As a tool of making art, interviews serve as an important tactic to give realistic shape to the artwork that young people seek to create. 4.2 Visualizing personal connections As both education scholarship (Duckworth, 1987) and practical experience tell us, to truly understand a con- cept, it is useful to experience it firsthand. Such primary experiences enable learners to forge their own connec- tions to the topic at hand, thereby connecting the topic to their own lives. In other words, by experiencing some- thing directly, learners can, as one teaching artist noted, “make it their own.” At CUP, the process of interviewing connects youth directly to the civic structures they are exploring. It is an opportunity for youth to experience–-in a physical, temporal, spatial, and affective manner–– environments and conversations that may have been previously off-limits. For example, it is only because the youth were investigating how we get our electricity that they were allowed to visit the power stations and sub- stations in New York City. This rare access provided an immediate experience that made real the connections between the different stakeholders involved in delivering the city’s electricity. When we make systems of power personally relevant, they become easier to identify and address. Through the interview process, the youth participants learned about the social and economic dimensions of power and power usage across social class lines and connected it to their own lives. One youth participant asked the follow up question, “What you’re describing, would my family be able to benefit from an energy program like this?” Another youth made an important observation about where power plants are located in the city in terms of social class: “Well, it’s mostly in poor neighborhoods, like Hunt’s Point, where there’s power plants, sewage treat- ment and people there are getting sick.” A youth video- taping the interview, immediately agreed, “Yeah I live in Hunt’s Point, there’s 15,000 trucks that frequent the area [for deliveries and shipping]”. Writing about the impor- tance of situated learning where education starts “from the students’ situation,” social justice education scholar, Ira Shor (1992) asserts that this “increases their ability to participate [as active learners], because they can begin critical reflection in their own context and their own words” (p. 45). Based on what they had learned from the interviews at the power plant students then began to create a visual map of how power reaches our homes from the power plants. They worked collectively on this mapping, each one taking a different section to make legible through images the invisible structure of power in our city. Con- ceptual mapping, commonly known as brainstorming has been used in education to illustrate complex connections between ideas (Powell, 2010). Visual mapping is a way to locate ourselves not only physically, but psychologically, Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 55 culturally, and socially. Contemporary artists have pushed the boundaries of mapping to capture these other dimensions, such as emotions, memory, and the body, in what Powell (2010) calls the “metaphorical powers of maps” that allow for a multisensory experience (p.539). Social justice education, as scholars have emphasized, needs to begin where students are and with what they know (Freire, 1970; hooks, 1994; Shor, 1992). To do so, educators need to provide the tools to visualize how these structures of inequity relate to their students (and their own) lives. From this space of personal under-stan- ding educators can then move students to think critically about the systemic nature of these inequities and how institutions can play a role in maintaining, managing, and also changing these inequities. 4.3 Thinking critically, creating critically Interviewing in the field allows students to learn about and appreciate different perspectives on a topic, which in turn allows them to think out their own values. “Field- work enables students to develop their understanding of different perspectives on social, political or ecological issues, enabling them to clarify and justify their own values whilst learning to acknowledge and respect other people’s values” (Job, Day, & Smith, 1999). As one of the teaching artists explained, peeling back to uncover injus- tice is important as many of the people interviewed at the power plant spoke to the connection between low income neighborhoods, poverty, and racism but in diffe- rent ways, which provided a more complex picture of the issues: “I'm just saying for example, in this project where the, the idea that when facilities were dumped into poor neighborhoods and minority, like Polish neighborhoods or here in the Bronx or in Brooklyn or Queens, whatever there is racism involved in those decisions but also well, you know the land is cheaper there and there are other things that makes it more complex than just on the surface. So I try to bring those issues to the table too so the students can think about that too. So it's not like hey, these people are bad, you know what I mean. So it's not one sided and too flat of an argument. So I try to bring the more complexity to it. Which is the hard thing. But yeah, that is one of the challenges. One of the reasons CUP uses interviews is to unearth the social structures and processes that are invisible in our daily lives but play a major role in shaping our daily life. (i.e., where does power come from?). By investi- gating these invisible structures and then reporting back what they have learned through artworks, youth shift to become advocates. They move from learning how to ask questions in order to elicit information about social structures and policies to analyzing the information they have collected from the interviews to create artworks that serve as education tools. The final design products–– be they posters, short videos, or visually-rich books–– teach the public about complex structures that are typically invisible and how these structures can affect our lives. As one youth participant recalls, “we went to this power plant and we've never been to a power plant and we didn't really know what it did, we weren't even exactly sure what we were looking for. But after the first three interviews we were able to kind of understand that our question was actually like, what is this power plant and who are the people involved in making these decisions in terms of this (plant). And I'm not even sure if that is something that we could of like figured out in the beginning, like, how to narrow down the question or how to make it more successful.” Through conducting and translating interview data into visual forms, youth participants managed to convey com- plicated information in more easy-to-access formats. Just as the interviews themselves revealed the complexity of city systems, the artwork that resulted from these interviews extended that knowledge to a wider audience. 4.4 Making art collaboratively Collaborative learning, where the teacher and student learn together is a key element of any form of social justice education (Freire, 1970; hooks, 1994). Such non- hierarchical learning creates opportunities for teachers and students to learn from each other, to take turns as the expert, and to change the conventional lines of power that tend to hold the teacher or adult in a position of greater authority and agency. Found often in out-of- school youth arts programs, collaboration requires flexibility and willingness to allow a project to unfold organically. As Goodman (2003) writes, “To effectively teach students across the field of their experiences, educators must sometimes follow, sometimes lead, and sometimes work with them side by side. No lesson plan can fully map this out” (p. 54). As a platform for colla- borative learning, interviewing is unique in that it cannot be pre-scripted, reveals new perspectives to all parti- cipants in the moment, and requires a back-and-forth dialogue between the interviewer and interviewee; in short, there is an important element of surprise that opens up spaces for new kinds of learning. Perhaps the most obvious way in which interviewing fosters collaborative learning is that neither the adult educators nor the youth participants know what the interviewee will say. One teaching artist described this element of mystery in this collaborative process: “I tell them all of the time, ‘Hey, we are doing this together, I don't know the answers.’ And you know we write the questions, … we prepare for interviews, so they [the youth participants] come up with a lot of questions, we [all] edit them down and organize them and so forth. So, I say, ’guys that's a great question, I don't know the answer, let's find out when we talk to this person or that person.’ Because the teaching artists and youth participants are both meeting the interviewees for the first time, they are hearing new information together and learning to make sense of it simultaneously. In this way, the process of interviewing results in a learning context in which every- one involved is experiencing a sense of discovery. As one teaching artist stated, “the nice thing is that we are Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 56 discovering this together. So I feel like I'm on the same playing field [as the youth participants].” Echoing this idea of the shared “playing field”, in CUP’s Urban Investigations, the interview task provides an unusual opportunity for youth and adult teaching artists to work as partners in art-making. Beyond the fact that they both engage in a parallel process of discovery, the process of developing, conducting, analyzing, and trans- lating the interview into a work of art is also collabo- rative. This collaboration happens on multiple levels, as one teaching artist describes: “We work together, it's a collaboration. It's a collaboration of different levels. First is with your students, then it's with people up top [CUP directors] and sometimes we bring graphic designers to help us too. So, it's a collaboration of different levels….It's like a diamond sort of thing where you basically have to carve it. So it takes different levels to get there. So it's a collaboration of different levels. You go back and forth with the student a lot, all the time. … we [teaching artists] send them [youth participants] the proofs so they can actually see it before we even publish it…. So yeah, it's a long process. Throughout this collaboration, youth and adults each bring their own expertise to the table to work together to prepare for, conduct, analyze, and transform an interview into a work of art; the youth participants generated ideas and questions based on their own experiences and the teaching artists shared their technical skills in inter- viewing, and art and design. When learning shifts to be collaborative—or, as Youth Radio’s Lissa Soep (2006) writes, a kind of “collegial pedagogy”—the experience is likely to empower both the youth and the adults in- volved. Because both parties can contribute as full part- ners in the design, coordination, and analysis of the inter- view, the process engenders a sense of group ownership over the project. As one teaching artist stated, the youth are empowered because they “own the project that they are creating and it's not like in some ways ok, they're [the youth] here because I'm saying we're doing a project on energy. I'm giving them that prompt and telling them what we are doing but in every other way like they get to make a lot of decisions. This shared decision-making is a key component of the entire process—from the initial interview through the creation of the final work of art. The same teaching artist continued this sentiment: “I want them to feel like they are teaching me something too and like they are learning something that I haven't thought of. I think that is important that it feels like a really collaborative experience in terms of, like, I'm the art teacher and I'm teaching you how to shape correctly or draw something that looks like something in the real world. You know, it's more like I'm teaching us both how to get information from the real world and apply that to our lives. Which is a hard kind of organic thing that happens as you do it. In talking about the work of youth and adult producers at Youth Radio, Soep (2006) describes that “With collegial pedagogy, mentoring adults offer access to equipment, expertise, in-the-moment advice, creative collaboration, and crucially, a network of relationships with outlets for young people’s work” (p. 38). Whereas many youth arts organizations have created opportunities for entirely youth-led projects, the shift to a collegial pedagogy, where youth and adults work as partners, allows for an authentic power-sharing in the art-making process. This collaborative process also facilitates opportunities for youth and adults to learn together. “The beauty of this collaboration” one teaching artist noted, is that “it's not like I'm telling them what do it's okay as what can you bring to the table and what can I bring to the table and we start from there.” This back-and-forth was evident in our observations as we noted constant discussion between youth and adults as they worked together to make artistic decisions about their final artworks. At times working all on one sheet of paper to draw out a plan, it was clear that the interviews provided a common ground from which each participant—be it a young person or an adult teaching artist—could contribute actively and with authenticity. While this kind of collaborative learning may sound elegant in theory, it is important to note that shared decision-making and true collegial pedagogy is not with- out its challenges. To truly share the decision-making process with youth participants, teaching artists must give up some of their own power and control over the curriculum and over the final product. This can result in a sense of what one teaching artist described as “uncer- tainty” as they worry, “what are we going to make in the end?” Yet, this uncertainty is actually a critical part of the process as it opens up a unique space in which youth and adult teaching artists come to create a work of art collaboratively. One teaching artist captured this tension in describing her reflections about the process: “We don't go in knowing what we are going to make. … our whole brainstorming process was the challenging part for me because I am just, like, nervous about wanting to make sure that [the project] gets done. Also, on the flip side... I'm not the one who is creating the project. So, this goes back to it being a collaborative work project. Like, I'm not the one creating it so it's not really fair for me to say, ‘oh I have an idea and I want you guys to create this.’ That's not what it is. It's the students, they have to come up with what they want to see, what they envision, how they can reflect what they've learned throughout the summer into some sort of print form. Such ongoing negotiation of the balanced contribu- tions of both youth and adult participants throughout the Urban Investigations highlighted how interviewing can be a useful tool to encourage collaborative art-making. 5 Final thoughts In writing about the role of teaching, Maxine Greene (2003) reminds us that it “is a matter of awakening and empowering today’s young people to name, to reflect, to Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 57 imagine, and to act with more and more concrete res- ponsibility in an increasingly multifarious world” (p. 72). In our research with the Center for Urban Pedagogy’s Urban Investigations youth program, it is clear that the pedagogical tool of interviewing can play a useful role in providing a range of opportunities for young people to develop their skills as creative agents for social change. Through CUP’s Urban Investigations, youth participants learned how to compose appropriate and investigative questions, how to ask those questions to stakeholders with real access to power, how to analyze the responses, and how to translate the information they learned into a creative platform for a wider audience. In addition to being useful skills in many professions, these interviewing capabilities are particularly useful in creating art. Aligned with the work of contemporary artists, this research- based art practice includes observational skills, data collection and analysis, visual mapping of ideas, inter- viewing skills, listening skill, question posing, commu- nicating skills, technical skills of videotaping, drawing, and photography. Interviewing, as an artistic tool allows youth to use their art to ask probing questions that make us think anew, thereby challenging the status quo. Echoing Greene’s words, the youth participants used interviewing as a means through which they learned to ask questions about the world around them and then to share what they learned with a wider audience. As such, interviewing serves as an important process of art making, another addition to the post-modern principles of art and design. At CUP, our research highlighted how interviewing can be seen not only as an effective teaching tool, but also as the foundation upon which young artists build their understanding and artistic visions of the world as they see it and the world as they would like it to be. References Allora and Calzadilla (2003). Interview with Sophie McKinlay in Tate Modern, Common Wealth Exhibition Catalogue. London: Tate Publishing. Bowman, P. and Hamer, L. (2011). Through the Schoolhouse Door: Folklore, community, curriculum. Logan, UT: Utah State University Press. Cahill, C. (2007). Doing research with young people: Participatory research and the rituals of collective work. Children’s Geographies, 5(3), 297-312. Cammarota, J. & Fine, M. (2008). Revolutionizing Education: Youth participatory Action research in motion. New York: Taylor & Francis. Cahill, C. & Hart, R. (Eds.). (2007). Rethinking the Boundaries of Civic Participation by Children & Youth in North America. Children, Youth and Environments, 17(2). Cramerotti, A. (2009). Aesthetic Journalism: How to inform with informing. Bristol and Chicago: Intellect. Center for Urban Pedagogy. (2015). Share, Where? Accessed on February 3, 2015 at welcometocup.org/ Projects/UrbanInvestigations/ShareWhere Center for Urban Pedagogy. (2015). Power Trip Accessed on February 3, 2015 at welcometocup.org/Projects/ UrbanInvestigations/PowerTrip Coles, A ( Ed.) (2000). Site-specificity: The Ethnographic turn. (de-,dis-ex.,Vol 4) London: Black Dog Publishing. Desai, D. (2002). The Ethnographic Move in Contemporary Art: What does it mean for Art Education. Studies in Art Education, 43(4), 307-323. Dewey, J. (1980). Art as experience. New York: Perigee Books. Dewhurst, M. (2014). Social Justice Art: A framework for activist art pedagogy. Cambridge, MA: Harvard Education Press. Duckworth, E. (1987). “The Having of Wonderful Ideas” and Other Essays on Teaching and Learning. New York: Teacher’s College Press. Foster, H. (1996). Artist as Ethnographer. In The return of the Real. Cambridge: MIT Press. Freire, P. (1970). Pedagogy of the oppressed. New York, NY: Herder and Herder. Glaser, B. G., & Strauss, A. L. (1967). The discovery of grounded theory; strategies for qualitative research. Chicago, IL: Aldine Pub. Co. Goodman, S. (2003). Teaching youth media: a critical guide to literacy, video production & social change. New York: Teachers College Press. hooks, b. (1994). Teaching to transgress: education as the practice of freedom. New York: Routledge. Job, D. Day, C. & Smyth, A. (1999) Beyond the Bike sheds: fresh approaches to fieldwork in the school locality. Sheffield. Geographical Association. Powell, K. (2010). Viewing Places: Students as Visual Ethnographers. Art Education, 63(6), 45-53. Taussig, M. (2008). Ethnography and Art at Sydney Biennale. Retreived on March 19, 2014 from digiethno.wordpress.com/2008/07/04/mick-taussig- discuses- ethnography-and-art-at-sydney-biennale-18- june-2008/ Schneider, A. & Wright, C. (2010). Between art and anthropology: Contemporary ethnographic practice. London: Bloomsbury Academic. Seidel, S., Tishman, S., Winner, E., Hetland, L., & Palmer, P. (2009). The qualities of quality: Understanding excellence in arts education. Cambridge, MA: Project Zero. Shor, I. (1992). Empowering Education: Critical Teaching for Social Change. Chicago: The University of Chicago Press. Journal of Social Science Education Volume 15, Number 4, Winter 2016 ISSN 1618–5293 58 Smyth, L. & Stevenson, L. (2003) "You Want to Be a Part of Everything": The Arts, Community, & Learning. A Report from the September 2003 Forum of the Arts Education Partnership. Washington, DC: Arts Education Partnership. Soep, E. (2006). Youth Mediate Democracy. National Civic Review, 95(1), 34-40. Wetzler, R. (2012). The Art of Fieldwork. Rhizome Editorial. Retrieved on September 19, 2013 from rhizome.org/editorial/2012/feb/2/artist-ethnographer/ Endnote i In this paper, we draw upon data from our interviews and observations of educators and participants involved in two Urban Investigations at the Center for Urban Pedagogy. Excerpted quotations were recorded and transcribed by our research team. To maintain confidentiality, we will refer to the interviewee’s role within CUP as the primary identifier for each data point. 
work_jcc5twzinvhzdbx2h6kh6zf72y	----	Journal of Contemporary Criminal Justice 2014, Vol. 30(3) 333 –352 © 2014 SAGE Publications Reprints and permissions: sagepub.com/journalsPermissions.nav DOI: 10.1177/1043986214536660 ccj.sagepub.com Article Genocide, Justice, and Rwanda’s Gacaca Courts Hollie Nyseth Brehm1, Christopher Uggen2, and Jean-Damascène Gasanabo3 Abstract More than one million people participated in the 1994 genocide against the Rwandan Tutsi. How did Rwanda, whose criminal justice infrastructure was decimated by the genocide, attempt to bring the perpetrators to justice? In this article, we provide the first analysis of the outcomes of the gacaca courts, a traditional community-based justice system that was greatly modified to address crimes of genocide. After briefly reviewing the creation of the National Service of Gacaca Jurisdictions, we explain the court process. Then, we present an overview of the outcomes of the courts with a focus on the specific sanctions given to those found guilty. This article provides the first systematic analysis of these sanctions, contributing both an empirical overview and new insights into how Rwanda attempted to bring justice to the many citizens who took part in the genocidal violence. We conclude by briefly highlighting some successes and failures of the gacaca system and its broader lessons for justice in other contexts. Keywords genocide, restorative justice, Rwanda, punishment, courts On April 6, 1994, the plane carrying the President of Rwanda and the President of neighboring Burundi was shot down as it prepared to land in the capital of Rwanda. The crash killed the plane’s occupants immediately, and within hours, targeted killing 1University of Minnesota, Minneapolis, USA 2The Ohio State University, Columbus, OH, USA 3Research and Documentation Center on Genocide, Rwandan National Commission for the Fight Against Genocide, Rwanda Corresponding Author: Hollie Nyseth Brehm, Department of Sociology, The Ohio State University, 238 Townshend Hall, 1885 Neil Avenue Mall, Columbus, OH 43210, USA. Email: nyset005@umn.edu 536660CCJXXX10.1177/1043986214536660Journal of Contemporary Criminal JusticeNyseth Brehm et al. research-article2014 by guest on September 21, 2014ccj.sagepub.comDownloaded from mailto:nyset005@umn.edu http://ccj.sagepub.com/ 334 Journal of Contemporary Criminal Justice 30(3) of Tutsis and those associated with them began. Members of the government had deliberately engendered animosity between the two main ethnic groups—Hutu and Tutsi—which had become politicized and polarized during Belgian colonialism. Just a few months later, over 1,050,000 people were dead (Center for Conflict Management of the National University of Rwanda, 2012). To put this number in perspective, these 1,050,000 people comprised approximately 14% of Rwanda’s 7.5 million1 inhabitants, a rate of killing 2,800 times higher than the current U.S. homicide rate of 5 per 100,000. Government leaders were largely responsible for the planning and execution of genocide. Yet, it is also well documented that priests, doctors, nurses, judges, and even human rights activists took part in the violence by murdering their neighbors, looting houses, destroying property, and raping women (Center for Conflict Management of the National University of Rwanda, 2012; Fujii, 2009; Hatzfeld, 2008; Mamdani, 2001; Straus, 2006). Overall, more than one million perpetrators participated in the genocide; and as new government leaders debated how to rebuild the country, an important part of the conversation concerned holding these partici- pants accountable. How has Rwanda, whose criminal justice system was destroyed by the genocide, attempted to bring the massive number of perpetrators to justice? This article offers a first look at some of the outcomes of the gacaca courts, a traditional community-based justice system that was modified to address crimes of genocide. We briefly explain the creation of the National Service of Gacaca Jurisdictions before discussing how these courts functioned in law and in practice. Next, we draw on court records to present an overview of the outcomes of these courts. We focus particularly on the sanctions given to different groups of perpetrators, which have yet to be systematically analyzed. Finally, we briefly place the successes and failures of the gacaca courts in context, discussing the system’s lessons for transitional justice and other settings. Transitional Justice: Responding to Genocide Due in part to the magnitude and severity of the crimes, transitional justice responses to genocide often occur at both the local and international levels. Internationally, for- mal trials have only been legitimized as appropriate responses to genocide and similar atrocity crimes since World War II. While prosecution was considered after the Armenian genocide and for war crimes committed during World War I (Bass, 2000; Heberer & Matthaus, 2008), the 1945 Nuremberg trials are widely recognized as the key precedent for international trials for mass atrocity.2 After the Nuremberg Tribunal closed, members of the newly formed United Nations began discussing the possibility of a permanent international tribunal. Due in part to Cold War rivalries, however, that court (known today as the International Criminal Court) was not yet in existence when genocide occurred in Rwanda. Instead, in November 1994, the United Nations Security Council passed a resolu- tion that created the International Criminal Tribunal for Rwanda (ICTR). The mandate of this ad hoc tribunal was to try the Rwandans deemed most responsible for the geno- cide. The ICTR held its first trial in Arusha, Tanzania, in 1997 and handed down the by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 335 world’s first conviction by an international court for the crime of genocide 1 year later. As of 2014, the tribunal has completed 75 cases (ICTR, 2013b). While the ICTR was heralded as a milestone in international criminal justice, it lacked both the mandate and the capacity to try even a fraction of those who partici- pated in the genocide. Instead, Rwandan leaders were faced with the task of deciding how to hold people accountable while simultaneously facilitating reconciliation. The mass public participation in the violence, as well as the country’s traditional focus on restorative justice, led many observers to recommend forming a truth commission (Clark, 2010).3 In fact, at the insistence of international donors and non-governmental organiza- tions (NGOs), a truth commission operated in Rwanda just 1 year before the genocide to investigate alleged human rights violations by the government (Bornkamm, 2012). Rwandan leaders considered forming another truth commission after the genocide but ultimately rejected this approach on the grounds that it would not adequately punish those who had taken part in the violence (Clark, 2010). Thus, while some of the key orchestrators of the genocide would be tried at the ICTR, a mechanism was still needed to respond to the violence within Rwanda. Rwanda’s Response: The Gacaca Courts As discussions about a large-scale response to the genocide continued, the new Rwandan government—comprised mainly of members of the Rwandan Patriotic Front (RPF) rebel army that stopped the genocide—was beginning to punish suspected per- petrators. In 1994 and 1995, government officials searched for people suspected of participating in the genocide and transported them to Rwandan prisons (Bornkamm, 2012; Clark, 2010). An estimated 120,000 people were brought to facilities that were built to hold 45,000 people. The 19 prisons in Rwanda were thus operating at over 200% capacity, with the vast majority of the incarcerated awaiting genocide trials (International Center for Prison Studies, 2013). Just as the prison infrastructure was inadequate to handle the sheer number of geno- cide participants, the existing judicial system was ill-suited to manage the newly incar- cerated suspects or the many other suspected genocidaires who were not in prison. Moreover, many lawyers and judges had been killed during the genocide or had fled the country. In November 1994, there were only 12 prosecutors and 244 judges in Rwanda, compared to 70 prosecutors and 758 judges in Rwanda before 1994 (Gacaca Report Summary, 2012). Even at full capacity, however, the existing Rwandan justice infrastructure would have been straining at the seams in responding to claims against over one eighth of the nation’s population. In response, multiple international NGOs donated money, time, and other resources to help the Rwandan national courts train new judges and lawyers. Many new legal personnel were indeed trained (estimates in 1996 included 210 prosecutors and 841 judges), and the national court system began hearing cases related to the genocide (Gacaca Report Summary, 2012). Yet, by 2000, only a few thousand cases had been processed (Bornkamm, 2012; Clark, 2010).4 by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 336 Journal of Contemporary Criminal Justice 30(3) The government of Rwanda thus turned to a different mechanism that combined retributive and restorative justice in 2001—the gacaca courts. Gacaca courts date back to before Rwanda was colonized (Bornkamm, 2012). Gacaca means “grass” in Kinyarwanda, and, as the name implies, the hearings were traditionally held outside in empty markets, school yards, and other public places within each community. In an ideal hearing, defendants would confess their crimes, express remorse, ask for forgiveness, provide restitution, and then offer food and drink to all parties as a symbol of reconcili- ation (Vandeginste, 1999). This traditional method of dispute resolution, which bears a close correspondence to the principles of restorative justice (Drumbl, 2002), had been established as an officially sanctioned court system for common crimes since the 1940s. After the genocide, however, the institution changed significantly (for detailed information, see Bornkamm, 2012; Clark, 2010; Jones, 2009), to the dismay of critics who lament the shift from a community-based informal system to a formal institution with close ties to the state (Waldorf, 2006). Government leaders decided that the modi- fied gacaca courts, called inkiko gacaca but shortened here to gacaca, were to be organized at local levels throughout the country. Its goals would be simultaneously punitive (e.g., fighting impunity) and restorative (e.g., contributing to national recon- ciliation),5 and the courts would have jurisdiction over genocide and crimes against humanity committed between October 1, 1990, and December 31, 1994.6 As there were too few lawyers or judges for the trials, and as the courts were intended as community courts, lay members of the community would serve as judges (inyangamugayo). In October 2001, the first round of elections for gacaca judges began. Legal training was not required to serve as a judge. Instead, judges were selected on the basis of their commitment to justice, truth, and a “spirit of sharing.” They were required to be 21 years or older, have no previous criminal convictions, and could not have been serving in a government or political leadership role. They also could have never been suspected of committing crimes against people during the genocide (Organic Law, 40/2000). More than 250,000 male and female judges were elected, and in April 2002, the elected judges underwent training. Finally, on June 18, 2002, the first pilot phase of the gacaca began.7 Court Procedure The judgment phase of the courts began in March 2005. Suspects were divided into three categories (Organic Law, 13/2008), as defined in the Appendix. In brief, Category 1 was reserved for planners or organizers of the genocide, officials, and leaders who participated or incited others to participate, and those who committed rape and sexual torture. Category 2 included “notorious murderers,” those who tortured others or defiled their bodies, suspects who killed or intended to kill, and those who served as accom- plices in such acts. Finally, Category 3 was comprised of property offenders who had not yet come to settlement with victims or authorities before the law took effect. Courts were operational at both the cell (akagari) and sector (umurenge) levels of geographic administration. Those at the cell level (the smallest administrative region in Rwanda) were responsible for trying people who were accused of Category 3 by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 337 crimes, while courts at the sector level were responsible for Categories 1 and 2.8 Nationwide, there were 9,013 cell courts, 1,545 sector courts, and 1,545 courts of appeal (National Service of Gacaca Jurisdictions, 2012). Each level of court consisted of a general assembly, a bench of judges (originally 19, later reduced to 14, 9, and finally 5), a president, and a coordinating committee. Lawyers did not participate in the trials, ostensibly to avoid adversarial proceedings, and there were no prosecutorial teams. Instead, the judges were tasked with investigating the crimes and then conduct- ing the trials, which lasted an average of 1 to 3 days (Mukantaganzwa, 2012). Trials took place in classrooms, conference rooms, or outdoors when indoor locations were not available. At each trial, inyangamugayo (judges) sat together on the bench, wearing green, yellow, and blue sashes—the colors of the Rwandan flag. The victims sat between the inyangamugayo and the public, with the perpetrators on the other side. Public confession was a cornerstone of the trials and their capacity to simultaneously serve the punitive and restorative goals of justice. As such, trials were open to the adult Rwandans in every community, whose participation was seen as key in moving the nation past the atrocity. In fact, participation was a duty (Organic Law n°16/2004, Article 29), and there are records of fines for non-participation (Sommers, 2012). The gacaca laws based punishments on the category of crime, recognition of guilt, and time to confession (if any). The most severe punishment that judges could assign was lifetime in prison. This was reserved for those committing Category 1 crimes without confession before or during the trials (Organic Law, 13/2008). Sentences were then to be decreased depending on the severity of the crime and time of confession (with lighter sentences for those who confessed before rather than during their trial). Community service, fines, and other restoration-based reparations were also possible sanctions, which we discuss in more detail below. Special procedures were put in place for minors. Rwandans who were between the ages of 14 and 18 at the time of the offense could be tried and receive up to 20 years in prison for a Category 1 crime. Those who were less than 14 at the time of the geno- cide were not to be prosecuted but sent to training camps instead (Organic Law, 13/2008). With regard to appeals, if defendants, victims, or others were not satisfied with a judgment, they were to register their intention to appeal within 15 days. The court then assessed the grounds of the appeals claim based on the gacaca laws. Assessing the Courts The courts closed on June 18, 2012, after completing the vast majority of the cases brought to their attention. To date, research on the gacaca courts has focused on schol- ars’ and practitioners’ assessments of the orientations and operations of the courts rather than case outcomes. Indeed, as the gacaca were heralded as a new form of transitional justice that uniquely combined mechanisms of punitive and restorative justice, diverse scholars sought to document how the courts functioned in law and in practice (Bornkamm, 2012; Clark, 2010; Daly, 2002; Longman, 2009; Schabas, 2005). In the course of this documentation, divergent views emerged regarding the pur- pose of the gacaca. For many practitioners and advocacy groups, the gacaca were by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 338 Journal of Contemporary Criminal Justice 30(3) primarily a retributive-based institution that existed to punish perpetrators of geno- cide. Others, such as Karekezi (see, for example, Karekezi, Nshimiyimana, & Mutamba, 2004) and Drumbl (2000), argue that a view of the gacaca as strictly retrib- utive is inherently limiting. Rather, in combining punishment and reconciliation, the gacaca blend elements of retributive and restorative justice. Clark (2010) similarly views the gacaca’s goals as both punitive and restorative, though he moves beyond this binary distinction in proposing six ideal aims—truth, peace, justice, healing, for- giveness, and reconciliation—along with three more pragmatic objectives of process- ing the backlog of cases, improving living conditions in the prisons, and facilitating economic development. Beyond documenting the process and objectives of the gacaca, scholars have assessed Rwandan public opinion of the courts, with many finding generally favorable public sentiment (Gasibirege & Babalola, 2001; Longman, Pham, & Weinstein, 2004; Rettig, 2008).9 The courts have also sustained harsh criticism, however, as scholars and practitioners have critiqued the implementation of gacaca and the institution more generally (Apuuli, 2009; Fierens, 2005; Ingelaere, 2009; Rettig, 2008; Staub, 2004; Waldorf, 2006). These commentaries address a range of gacaca processes, including but not limited to the traumatic effects of testifying, the retroactive application of laws, the lack of due process rights for the accused, the reduced role of local communities in the creation of the courts, the inclusion of crimes against property, and the lack of trials against members of the RPF, the ruling party who assumed power after the genocide and who were accused of committing crimes in the process of stopping the genocide and in its immediate aftermath. Notably, the Rwandan government also echoes some of these concerns. In fact, the closing report of the National Service of Gacaca Jurisdictions listed many difficulties impeding the functioning of the courts, such as responding when gacaca judges and then-current government leaders were accused of genocide, conspiracy among both the accused and the witnesses to conceal informa- tion, destruction of court records, violence against those who testified, trauma mani- fested during (and likely after) court proceedings, accused perpetrators who fled Rwanda, and corruption within the court system. These critiques identify important problems, especially when measured against an idealized liberal legal model. When measured against the post-genocide Rwandan context, however, many of the legalistic critiques of the courts seem disproportionate, given the scale of crimes and the lack of other options to respond to them (McEvoy, 2007). Rwanda had just lost more than one million people to a genocide that its own citizens had planned and perpetrated, its institutions were completely shattered, and its pre-genocide legal system already differed from Western legal systems in numerous ways. With both context and critiques in mind, we here detail a form of justice the gacaca produced—the sanctions given to over one million perpetrators. Analytic Strategy To detail these sanctions, we draw on official records that were kept by the National Service of Gacaca Jurisdictions. This unit was the administrative arm of the gacaca by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 339 courts, and they compiled records from all trials. Millions of these records were kept in official notebooks, which are currently being archived in Kigali. This process will take years, though gacaca employees also transferred abbreviated forms of court records into Excel files that contain information about the perpetrators (including sex, date of birth, and family identifiers), whether they were found guilty, the punishment, the category of crime, the location of the crime, and the date of the trial. Through a partnership with the Rwandan National Commission for the Fight Against Genocide, we obtained the Excel files for each administrative region within Rwanda. We then compiled these abbreviated court records from 10,558 courts10 into a single database of gacaca files with almost two million records. We caution that this is the first presen- tation of these data and it is likely that a small percentage of the almost two million cases in our Excel files contain clerical errors. Nevertheless, after taking care to clean these data and minimize such errors, we are confident about the data we present. In this article, we focus specifically on the initial sanctions imposed at the cell and sector levels. To avoid confusion and duplication, we omit appeals (explained in more detail below) from the analysis. In addition, we exclude trials in absence, which involved those who had fled or, for some other reason, did not appear in court 30 days after they were summoned. These trials were conducted not for the alleged perpetrator but for the victims, their families, and the community, illustrating the restorative aspect of the trials. Yet, as the sanctions were likely influenced by the inability of the accused to confess or testify on their own behalf, we exclude them from this analysis. We also exclude a relatively small percentage of cases that include errors. Official data in any country are never perfect, and Rwandan gacaca data are no exception. Therefore, while we strove to include as many cases as possible in this analysis, we exclude cases with errors, such as sanctions recorded incorrectly (with nonsensical numbers, words, or symbols). Thus, the total number of trials included in the analysis is 1,441,555. Note that the unit of analysis is the trial rather than the individual; a small proportion of individuals were tried for crimes in multiple categories and jurisdictions, whereas others were tried in separate cases for crimes falling into different categories. We begin by detailing the total number of cases concluded by the gacaca system. Then, we restrict the analysis to our analytic sample as described above and detail the sanctions received in each category of crime.11 Finally, we briefly examine how these sanctions varied by the age and sex of the perpetrators. The Gacaca Courts: An Overview Overall, the gacaca courts completed 1,958,634 cases (National Service of Gacaca Jurisdictions, 2012). Table 1 illustrates the case breakdown by category of genocidal crime, showing that, by far, the majority of the cases were crimes against property (Category 3). Thirty-three percent of the cases involved crimes against people, with 3% of all cases falling in Category 1, the category reserved for the cases deemed most seri- ous. Table 1 also includes the percentage of individuals found guilty in each category. The likelihood of a guilty verdict was highest for property crimes in Category 3 (96%), followed by those in Category 1 (88%). The high percentage of those convicted in by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 340 Journal of Contemporary Criminal Justice 30(3) Category 3 may be explained in part by the relatively modest sanctions, as detailed below. In addition, the discrepancy between those convicted in Category 1 as opposed to Category 2 (63%) may be due in part to the percentage of confessions in each cate- gory (approximately 41% and 30%, respectively) or the notoriety of the perpetrators. Approximately 9% of the total cases tried by the gacaca were appeals cases. As the table illustrates, the vast majority of these cases were for crimes in Category 2, which included crimes against people, such as killing. Twenty-six percent (45,839) of all appeals cases were acquitted. As noted above, we exclude these cases, as well as cases tried in absentia and cases with erroneous data, resulting in an analytic database of 1,441,555 trials. Category 3 Sanctions: Crimes Against Property Table 2 shows the distribution of sanctions for Category 3 crimes—crimes against property—that were tried at the cell (akagari) level. The overwhelming majority of perpetrators in this category were sanctioned via fines that were to be paid to victims and their families. The median fine amount was 7,100 Rwandan Francs (RWF), which corresponds to approximately US$11 at the current exchange rates (649 RWF per U.S. dollar) and a relatively modest percentage of Rwanda’s per capita gross national income of US$560 (World Bank, 2013, data for 2011). Approximately half of the fines were between 1,285 and 25,000 RWF, or US$2 to US$39. As shown in Figure 1, almost one fourth of the fines were less than 1,000 RWF, and another third were below 10,000 RWF, likely reflecting the economic cir- cumstances of the perpetrators. At the other end of the distribution, 9% of fines exceeded 100,000 RWF, or US$154 (and 1% of fines exceeded 680,953 RWF, or US$1,049). The distribution is skewed by a small number of fines over 1,000,000 RWF, which may not have been accurately recorded. To assess the fine amount, the victim and/or family members would provide a list of the property that was destroyed. This list would be read aloud to the public during the hearing, and anyone present with additional information could provide it to the court. This was especially important when the entire family was killed; in such cases, the neighbors would generally assist the gacaca courts in assessing the damage to property and compiling the list. Then, if the suspects were found guilty of stealing or destroying the property in question, the gacaca court judges would decide how much was owed for the damaged or stolen property. The fines were intended to be paid to the Table 1. Gacaca Case Completion. Gacaca category Number of cases % Number found guilty % Appeals Category 1 60,552 3 53,426 88 19,177 Category 2 577,528 30 361,590 63 134,394 Category 3 1,320,554 67 1,266,632 96 25,170 Total 1,958,634 100 1,681,648 86 178,741 by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 341 family rather than the state. If no family member survived the genocide, the fines were held in a special account at the district level, to be paid to any relatives who came forward at a later date. Beyond fines, over 9% of cases were settled by “agreement” (ubwumvikane). This represents a negotiated arrangement between the perpetrators and the victim or fami- lies who lost property, initiated by the perpetrator who wished to be forgiven and to pay the victim for the stolen or destroyed property. For example, an accused individual took four doors from a victim’s house during the genocide. By the time of the hearing, however, the accused had damaged the doors and could no longer find the same wood to replace them. If the accused recognized his crime and asked for forgiveness, he Table 2. Frequency Distribution of Category 3 Sanctions. Level 3 sanction Frequency % Finea 980,529 87.33 Agreement (Ubwumvikane) 104,289 9.29 Exemption (Gusonerwa) 25,593 2.28 Restitution/return goods 10,387 0.93 Forgiveness (Imbabazi) 698 0.06 Daily work 600 0.05 Building a house 554 0.05 Months in prisonb 117 0.01 Total 1,122,767 100.00 aPrecise fine amount information is missing for approximately 1% of the cases. bGacaca law stipulated that prison sentences were not to be given for Category 3 crimes. It is unclear whether the .01% of prison sentences in the database were errors in sentencing or errors in recording the sentence. Figure 1. Fines for Category 3 perpetrators (in Rwandan Francs). by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 342 Journal of Contemporary Criminal Justice 30(3) could ask the victim for an agreement. Together, the two parties would then choose another wood to replace the damaged doors. Once chosen, their agreement would then be signed before the gacaca court, with the court retaining the ultimate authority to accept or reject the agreement. In addition, over 25,000 cases (2.3%) were resolved via gusonerwa or “exemption.” In such cases, both perpetrator(s) and victim(s) recognized the crime. The perpetrator requested exemption from all or part of the financial obligation, and the victim decided whether to grant this request. If the victim agreed, the perpetrator’s crimes would still be recognized as such, though no fine or other punishment would be assigned. For example, an individual was accused of looting two cows from a victim’s family. During the trial, he was found guilty and sentenced to pay 80,000 RWF to the victim’s family. He sold many of his belongings to try to come up with 80,000 RWF. After a few months, he visited the victim’s family. He brought 60,000 RWF—the most he could get at that time—and promised to bring the remaining money soon. After consultation, the family decided to forgive him and exempted him from paying the remaining 20,000 RWF. Beyond this, about 1% of Category 3 cases were resolved through the return of goods. These included cows, pigs, sheep, metal sheets, clothing, glasses, basins, knives, coffee, beans, peas, pitchers, blankets, saucepans, and other animals, foods, and household goods. The remaining sanction categories listed were imposed less fre- quently but remain important for understanding the variety of approaches to restor- ative justice for crimes against property. For example, perpetrators could request “forgiveness” (imbabazi) for their crimes. This did not deny the crime’s occurrence or the suspect’s participation, since recognizing the crime is an important part of the gacaca process. Forgiveness was also an element of other sanction processes, such as exemption or agreement. Yet, when officially granted, the victim agreed not to pursue the perpetrator for damages. Finally, some of those found guilty were given the option to build a house or work for the victims. This served as a form of restitution and rec- onciliation, particularly in cases in which the guilty party lacked the means to pay fines or repay stolen goods. Category 1 and Category 2 Sanctions: Crimes Against People Cases involving crimes against people, such as killing, rape, and torture, were addressed through courts at the sector (umurenge) level, a higher administrative level within Rwanda. Nevertheless, they were designed to operate according to similar procedures and were governed by the same laws. Due to the greater severity of these crimes, the sentences for these categories were much more likely to involve incarceration. In fact, almost all of the Category 1 and Category 2 perpetrators were given prison sentences, as shown in Table 3. Approximately 93% received a sentence varying from several months to 30 years. In addition, 5% received a life sentence.12 There were also 329 agreements recorded in the data, which functioned as explained above for prop- erty offenses, and 100 sentences to training camps, where those sentenced took classes in Rwandan history and learned skills pertaining to agriculture, woodwork, and art, among others. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 343 Community service, a hallmark of the gacaca system and restorative justice more generally, remained an option for perpetrators in these categories who confessed to their crimes. Overall, 29% of cases (91,556 cases) involved a community service obli- gation. When perpetrators recognized their crimes and confessed, the sentence length could be halved through community service, with 50% of the sentenced time served in TIG (Travaux d’Interet General or “works of public interest”) rather than prison. Community service work generally depended on the needs of the region, often includ- ing tasks such as building (or rebuilding) homes for survivors, repairing roads and bridges, planting fauna, or creating terraces. This work was completed prior to the prison sentence. Figure 2 shows the distribution of sentence length for these two types of genocide offenses.13 Category 1 crimes are considered significantly more serious than Category 2 offenses, meriting longer prison sentences. The modal Category 1 sentence was 25 to 30 years, with 17% of the perpetrators receiving life sentences. Excluding the life sentences, the median sentence length was 19 years—or a year less than the presump- tive minimum of 20 years. In Category 2, by contrast, the median sentence was 15 years, the modal interval was 10 to 14 years, and only 2% received life sentences. Table 3. Frequency Distribution of Category 1 and Category 2 Sanctions. Level 1 and 2 sanctions Frequency % Prison sentence 296,245 92.93 With community service 91,556 Without community service 204,689 Life in prison 15,444 4.85 Fines 6,670 2.09 Agreements 329 0.10 Training camp 100 0.03 Total 318,788 100.00 Figure 2. Prison sentences for Category 1 and Category 2 perpetrators. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 344 Journal of Contemporary Criminal Justice 30(3) Figure 3. Sentences and community service for Category 1 and Category 2 perpetrators. These distributions thus show a degree of proportionality in sentencing across this severity gradient. As a point of reference, 23% of U.S. homicide offenders were given life sentences in 2006. The remainder were sentenced for an average of 21 years (Rosenmerkel, Durose, & Farole, 2009, p. 6), significantly longer than sentences given to genocide perpetrators tried in the gacaca courts. While the United States remains an outlier in regard to sentence length, the sparing use of life sentences for gacaca Category 2 crimes also appears tough but fair by international standards (Bernaz, 2013). Figure 3 shows the distribution of sentence length in years for Category 1 and Category 2 crimes combined, as well as the number within each 5-year grouping that received community service. Notably, the most common prison sentences were 10 to 14 years in length, though more than one third of the individuals receiving these sen- tences were able to lessen their time in prison by doing community service. In addi- tion, some prisoners were eligible to have up to one third of their sentence suspended.14 Age and Sex Distribution of Sentences We have only limited information about the demographic and social characteristics of perpetrators, but it is instructive to compare the sex and age distributions of those receiving punishments (for more information on the age and sex of perpetrators, see by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 345 (Nyseth Brehm, Uggen, & Gasanabo, 2012).15 In general, a greater percentage of men received fines for Category 3 crimes, with a median fine amount of 7,480 RWF for men and 5,000 RWF for women. Yet, for Categories 1 and 2, the median length of years in prison (15) was the same for men and women, and community service was given in a similar percentage of cases. With regard to age at the time of offense, the average fine was 8,155 RWF for people at or below the median age of 32, relative to 7,435 RWF for people 33 and above. In addition, the median length of prison sen- tences was 12 years for those less than age 33 and 13 years for those over age 33 and above. Figure 4 shows life sentences by age and sex. As discussed, life sentences were the most severe punishments given by the courts. Overall, 17% of men convicted of Category 1 crimes were given life sentences, relative to 7% of women in this category. In Category 2, men are also more likely to receive life sentences, which again could reflect differences in severity or other characteristics of the case or the court. About 16% of perpetrators below the median age of 32 received life sentences for Category 1 crimes, relative to 11% of their older counterparts. There is little difference in the age distribution of life sentences for Category 2 crimes. Overall, these differences are small, with more difference seen between sexes and in Category 3 crimes. As there are no similar studies of sanctions for perpetrators of other episodes of genocide, we are unable to compare these discrepancies with other cases. Moreover, we lack the sort of detailed information about crime severity that would allow us to analyze discrimination on the basis of sex and age. Nevertheless, age and sex are likely linked to both crime severity and sentencing outcomes (Steffensmeier, Ulmer, & Kramer, 1998). Discrepancies in fines may also reflect differences in the abil- ity to pay financial obligations. Finally, there may have been gender- or age-specific differences in confessions (which, again, influenced the sanctions given) or differences Figure 4. Life sentences by age and sex. Note. Ninety-eight percent of all life sentences were given to men, whereas 61% of life sentences were given to people who were at or below the median age of 32 when they committed the crime. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 346 Journal of Contemporary Criminal Justice 30(3) in sentence assignment by the judges. As more complete gacaca data become available, a full accounting of the relative influence of such factors may be undertaken. Conclusion: Gacaca in Perspective In the past decade, the National Service of Gacaca Jurisdictions processed an astounding number of cases in an attempt to bring perpetrators of genocide to justice and to promote reconciliation within Rwanda. This system represents a complex amalgamation of seem- ingly disparate elements. It is at once formal and informal, community-based and state- driven, traditional and contemporary, and punitive and restorative. The underlying tensions within the gacaca model, combined with the enormity of the courts’ responsi- bilities, have led to sustained criticism with regard to both process and outcomes (Apuuli, 2009; Fierens, 2005; Ingelaere, 2009; Rettig, 2008; Staub, 2004; Waldorf, 2006). We do not seek to refute these criticisms. Nevertheless, the courts’ ability to try and sanction a crushing caseload of genocide perpetrators represents a truly historic achievement in the administration of justice. Whereas one cannot measure the quality of justice by the number of cases processed, it is important to reiterate that the gacaca courts did their difficult work in the wake of a mass tragedy that shattered Rwanda’s legal infrastructure and left the country reeling. To put these accomplishments in perspective, consider that the International Criminal Tribunal for Rwanda has com- pleted 75 cases since 1997, with annual budgets over US$200 million (ICTR, 2013a). In contrast, the gacaca processed almost two million cases at an estimated total cost of US$46 to US$65 million (National Service of Gacaca Jurisdictions, 2012). While punishment was not the only purpose or outcome of the courts, it is clearly an important aspect of the institution that merits scholarly attention and analysis. This article provides the first comprehensive overview of the sanctions given by the gacaca courts and the first attempt to organize and analyze these data. Although much work remains, we can draw three basic conclusions from the data presented here. First, the sanctions of the gacaca courts reflect a mix of fines and restorative justice alternatives for genocide offenses against property, illustrating that restorative aims were indeed embedded in the institution. Second, the severity-graded prison sentences for genocide crimes against people provide evidence of proportionality and a more punitive approach toward crimes deemed more serious. While it is difficult to charac- terize any genocide sanction as proportional, the sentences appear to reflect the sever- ity gradient intended by the basic categorization scheme. It is perhaps noteworthy that, on average, sentences for murder and non-negligent manslaughter in the United States are significantly longer. Third, while the gacaca courts made extensive use of life sentences and long-term imprisonment, they also made extensive use of community service (Travaux d’Interet General or “works of public interest”). Further research on these restorative efforts might explore their potential to serve tremendously disadvan- taged communities while also alleviating prison overcrowding, costs, and a severely overtaxed prison infrastructure. In short, the gacaca courts represented a powerful response to mass crime and an important element in the struggle to address society-wide tragedy and move forward. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 347 While these courts represent a “home-grown” Rwandan solution in many ways, their blending of punitive and restorative aims and traditional and contemporary elements holds important insights for justice pursuits around the world. To the extent that a hybrid model such as gacaca can address the “crime of crimes,” it should encourage other innovative approaches to lesser offenses in wide-ranging social contexts. Appendix Abbreviated Gacaca Categories Category 1: 1. Any person who committed or was an accomplice in the commission of an offense that puts him or her in the category of planners or organizers of the genocide or crimes against humanity; 2. Any person who was at a national leadership level or that of prefecture (state) level— including those serving in public administration, political parties, army, gendarmerie, religious denominations, or a militia—who committed crimes of genocide or crimes against humanity or encouraged others to partici- pate in such crimes, together with his or her accomplice; 3. Any person who committed or was an accomplice in the commission of offense that puts him or her among the category of people who incited, supervised, and were ringleaders of genocide or crimes against humanity; 4. Any person who was at the leadership level at the sub-prefecture and com- mune (municipality)— including those serving in public administration, politi- cal parties, army, gendarmerie, communal police, religious denominations, or a militia—who committed any crimes of genocide or other crimes against humanity or encouraged others to commit similar offenses, together with his or her accomplice; and 5. Any person who committed the offense of rape or sexual torture, together with his or her accomplice. Category 2: 1. A notorious murderer who distinguished himself or herself in his or her loca- tion or wherever he or she passed due to the zeal and cruelty used, together with his or her accomplice; 2. Any person who tortured another even though such torture did not result into death, together with his or her accomplice; 3. Any person who committed a dehumanizing act on a dead body, together with his or her accomplice; 4. Any person who committed or was an accomplice in the commission of an offense that puts him or her on the list of people who killed or attacked others resulting in death, together with his or her accomplice; by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 348 Journal of Contemporary Criminal Justice 30(3) 5. Any person who injured or attacked another with the intention to kill but such intention was not fulfilled, together with his or her accomplice; and 6. Any person who committed or aided another to commit an offense against another without an intention to kill, together with his or her accomplice. Category 3: A person who only committed an offense related to property. However, when the offender and the victim came to a settlement and settled the matter before authorities or witnesses before commencement of the law, the offender was not prosecuted. Acknowledgment We owe special thanks to Marie Berry, Suzy McElrath, Naphtal Kisakye, Lindsay Blahnik, and Andrew Johnson for valuable feedback. Declaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was supported by the University of Minnesota Graduate Research Partnership Program. Uggen is additionally supported by a Robert Wood Johnson Health Investigator Award, whereas Nyseth Brehm is supported by the National Science Foundation. Notes 1. The population is based on the 1991 census, the last census before the genocide. Thus, this is an approximation. 2. The term “genocide” was not common during the 1940s. Instead, the Tribunal had jurisdic- tion over war crimes, crimes against humanity, crimes against peace, and conspiracy. 3. Truth commissions gained prominence as a potential response to mass atrocities during the 1970s (Avruch & Vejarano, 2001; Minow, 2008). Unlike punitive responses that empha- size retribution, general deterrence, and “just desserts,” commissions place more emphasis on creating a record of events that occurred during a period of violence, often offering amnesty or reduced sentences in exchange for truth telling. 4. The outcomes of these trials are not well documented. However, a small percentage of those in prison were executed. The last executions took place in 1998, when 22 people found guilty of genocide-related crimes were executed (Amnesty International, 2007). Later, exe- cutions reportedly stopped, and the death penalty was officially abolished in 2007. 5. As detailed by the Government, the gacaca courts had five key objectives, including the following: (a) identifying the truth about what happened during the genocide, (b) increasing the speed of ongoing trials, (c) fighting a culture of impunity, (d) contributing to the national unity and reconciliation process, and (e) demonstrating the capacity of the Rwandan people to resolve their problems (National Service of Gacaca Jurisdictions, 2012). by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ Nyseth Brehm et al. 349 6. Whereas the vast majority of genocidal violence took place between April and July, 1994, the jurisdiction spanned a longer period to try people involved in planning the genocide as well as those involved in attacks after the genocide was declared over in July 1994. 7. Judgments were not given during the pilot phase, though information collected during this phase was used during future court proceedings. Throughout the pilot phases, Rwandan leaders adapted the laws governing the gacaca courts based on practice (Brannigan & Jones, 2009). In total, the laws governing the gacaca courts were amended several times, though court procedures remained relatively stable. Relevant laws are listed in the works cited (Organic Law n°40/2000; Organic Law n°16/2004; Organic Law n°28/2006; Organic Law n°13/2008; n°10/2007; n°04/2012). 8. Until 2008, the gacaca courts only had jurisdiction over Categories 2 and 3, while Category 1 suspects were sent to the national courts. The 2008 modifications to the laws shifted many Category 1 suspects to the gacaca, however. Data on suspects tried within the national courts are currently unavailable. 9. In line with this, the Center for Conflict Management of the National University of Rwanda (2012) conducted a survey of approximately 3,500 people to assess public opinion of the courts, finding that 87% of respondents believed the gacaca strengthened national unity and reconciliation and put an end to the culture of impunity. However, some have noted that these and other surveys are “suspiciously positive,” which might be attributed to fear of criticizing the government and its initiatives (e.g., Rettig, 2008). 10. As noted below, this number is lower than the total number of courts because we exclude courts of appeal from this analysis. 11. Ideally, we would be able to analyze punishments by type of crime, such as rape or torture. However, crimes in the database are only listed by category, so we do not have the capabil- ity to disaggregate our data beyond the three categories. 12. There were also 10 cases in which sentences over 30 years are recorded, although the maximum sentence length was limited to 30 years or life imprisonment by statute. These 10 cases have no perceptible effect on the mean or median values reported here. 13. For those who were convicted of crimes in more than one court, prison sentences were allowed to be served concurrently rather than consecutively. 14. There was also a mass amnesty in 2003, though details about these amnesties are not publi- cally available. 15. Age information is missing for approximately 30% of cases; sex information is missing for 0.1% of cases. References Amnesty International. (2007, August 2). Rwanda abolishes death penalty. Retrieved from http://www.amnesty.org/en/news-and-updates/good-news/rwanda-abolishes-death- penalty-20070802 Apuuli, K. P. (2009). Procedural due process and the prosecution of genocide suspects in Rwanda. Journal of Genocide Research, 11, 11-30. Avruch, K., & Vejarano, B. (2001). Truth and reconciliation commissions: A review essay and anno- tated bibliography. Social Justice: Anthropology, Peace, and Human Rights, 2(1-2), 47-108. Bass, G. (2000). Stay the hand of vengeance: The politics of war crimes tribunals. Princeton, NJ: Princeton University Press. Bernaz, N. (2013). Life imprisonment and the prohibition of inhuman punishments in interna- tional human rights law: Moving the agenda forward. Human Rights Quarterly, 35, 470-497. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://www.amnesty.org/en/news-and-updates/good-news/rwanda-abolishes-death-penalty-20070802 http://www.amnesty.org/en/news-and-updates/good-news/rwanda-abolishes-death-penalty-20070802 http://ccj.sagepub.com/ 350 Journal of Contemporary Criminal Justice 30(3) Bornkamm, P. C. (2012). Rwanda’s Gacaca courts: Between retribution and reparation. New York, NY: Oxford University Press. Brannigan, A., & Jones, N. A. (2009). Genocide and the legal process in Rwanda from genocide amnesty to the new rule of law. International Criminal Justice Review, 19, 192-207. Center for Conflict Management of the National University of Rwanda. (2012). Evaluation of gacaca process: Achieved results per objective. Study commissioned by National Service of Gacaca Courts. Kigali, Rwanda. Clark, P. (2010). The Gacaca courts, post-genocide justice and reconciliation in Rwanda: Justice without lawyers. New York, NY: Cambridge University Press. Daly, E. (2002). Between punitive and reconstructive justice: The Gacaca courts in Rwanda. New York University Journal of International Law and Politics, 34, 355-396. Drumbl, M. A. (2000). Punishment, postgenocide: From guilt to shame to “civis” in Rwanda. New York University Law Review, 75, 1221-1326. Drumbl, M. A. (2002). Restorative justice and collective responsibility: Lessons for and from the Rwandan genocide. Contemporary Justice Review, 5, 5-22. Fierens, J. (2005). Gacaca courts: Between fantasy and reality. Journal of International Criminal Justice, 3, 896-919. Fujii, L. (2009). Killing neighbors: Webs of violence in Rwanda. Ithaca, NY: Cornell University Press. Gacaca Report Summary. (2012). Summary of the report presented at the closing of Gacaca court activities. National Service of Gacaca Jurisdictions. Kigali, Rwanda. Gasibirege, S., & Babalola, S. (2001). Perceptions about the Gacaca law in Rwanda: Evidence from a multi-method study, special publication no. 19. Baltimore, MD: Center for Communication Programs, School of Public Health, Johns Hopkins University. Hatzfeld, J. (2008). A time for machetes: The Rwandan genocide—The killers speak (L. Coverdale, Trans.). London, England: Sperpent’s Tail. Heberer, P., & Matthaus, J. (2008). Atrocities on trial: Historical perspectives on the politics of prosecuting war crimes. Lincoln, Nebraska: University of Nebraska Press. Ingelaere, B. (2009). Does the truth pass across the fire without burning? Locating the short circuit in Rwanda’s Gacaca courts. The Journal of Modern African Studies, 47, 507-528. International Center for Prison Studies. (2013). World prison statistics archive. Retrieved from http://www.prisonstudies.org/country/rwanda International Criminal Tribunal for Rwanda. (2013a). Annual budget. Retrieved from http:// www.unictr.org/Abouta/GeneralInformation/tabid/101/Default.aspx International Criminal Tribunal for Rwanda. (2013b). Status of cases. Retrieved from http:// www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx Jones, N. (2009). The courts of genocide: Politics and the rule of law in Rwanda and Arusha. New York, NY: Routledge. Karekezi, A. U., Nshimiyimana, A., & Mutamba, B. (2004). Localizing justice: Gacaca courts in post-genocide Rwanda. In E. Stover & H. M. Weinstein (Eds.), My neighbor, my enemy: Justice and community in the aftermath of mass atrocity (pp. 69-84). New York, NY: Cambridge University Press. Longman, T. (2009). An assessment of Rwanda’s Gacaca courts. Peace Review, 21, 304-312. Longman, T., Pham, P., & Weinstein, H. (2004). Connecting justice to human experience. In E. Stover & H. M. Weinstein (Eds.), My neighbor, my enemy: Justice and community in the aftermath of mass atrocity (pp. 206-225). New York, NY: Cambridge University Press. Mamdani, M. (2001). When victims become killers: Colonialism, nativism, and genocide in Rwanda. Princeton, NJ: Princeton University Press. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://www.prisonstudies.org/country/rwanda http://www.unictr.org/Abouta/GeneralInformation/tabid/101/Default.aspx http://www.unictr.org/Abouta/GeneralInformation/tabid/101/Default.aspx http://www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx http://www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx http://ccj.sagepub.com/ Nyseth Brehm et al. 351 McEvoy, K. (2007). Beyond legalism: Towards a thicker understanding of transitional justice. Journal of Law and Society, 34, 411-440. Minow, M. (2008). Making history or making peace: When prosecutions should give way to truth commissions and peace negotiations. Journal of Human Rights, 7, 175-185. Mukantaganzwa, D. (2012). Interview with the executive secretary of National Gacaca Service Domithile Mukantaganzwa on the eve of closing of Gacaca courts. Retrieved from http:// www.gov.rw/Interview-with-the-Executive-Secretary-of-National-Gacaca-Service- Domithile-Mukantaganzwa-at-the-eve-of-closing-of-Gacaca-Courts Nyseth Brehm, H. N., Uggen, C., & Gasanabo, J.-D. (2012, November). Age, sex, and the crime of genocide. Paper presented at the 2012 meetings of the American Society of Criminology. Chicago, IL. Rettig, M. (2008). Gacaca: Truth, justice, and reconciliation in postconflict Rwanda? African Studies Review, 51(3), 25-50. Rosenmerkel, S., Durose, M., & Farole, D., Jr. (2009). Felony sentences in state courts, 2006— Statistical tables (U.S. Department of Justice, Bureau of Justice Statistics). Washington, DC: U.S. Government Printing Office. Schabas, W. A. (2005). Genocide trials and Gacaca courts. Journal of International Criminal Justice, 3, 879-895. Sommers, M. (2012). Stuck: Rwandan youth and the struggle for adulthood. Athens: University of Georgia Press. Staub, E. (2004). Justice, healing, and reconciliation: How the people’s courts in Rwanda can promote them. Peace and Conflict: Journal of Peace Psychology, 10, 25-32. Steffensmeier, D., Ulmer, J., & Kramer, J. (1998). The interaction of race, gender, and age in criminal sentencing: The punishment cost of being young, black, and male. Criminology, 36, 763-797. Straus, S. (2006). The order of genocide: Race, power, and war in Rwanda. Ithaca, NY: Cornell University Press. Vandeginste, S. (1999, November 8-12). Justice, genocide, and reparation after genocide and crimes against humanity: The proposed establishment of population Gacaca tri- bunals in Rwanda. Paper delivered to the All-Africa Conference on African Principles of Conflict Resolution and Reconciliation, United Nations Conference Center, Addis Ababa, Ethiopia. Waldorf, L. (2006). Rwanda’s railing experiment in restorative justice. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 422-434). New York, NY: Routledge. World Bank. (2013). World Bank development indicators, 1960-2012. Retrieved from http:// data.worldbank.org/data-catalog/world-development-indicators/wdi-2011 Gacaca Laws Organic Law n°04/2012 of 15/06/2012 terminating Gacaca courts. Government of Rwanda. Organic Law n°10/2007 of 01/03/2007 amending Organic Law of 2004. Government of Rwanda. Organic Law n°13/2008 of 19/05/2008 amending previous Organic Laws. Government of Rwanda. Organic Law n°28/2006 of 27/06/2006 setting up the first amendment of Organic Law of 2004. Government of Rwanda. Organic Law n°16/2004 of 19/06/2004 governing the organization, jurisdiction, and functioning of Gacaca courts. Government of Rwanda. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://www.gov.rw/Interview-with-the-Executive-Secretary-of-National-Gacaca-Service-Domithile-Mukantaganzwa-at-the-eve-of-closing-of-Gacaca-Courts http://www.gov.rw/Interview-with-the-Executive-Secretary-of-National-Gacaca-Service-Domithile-Mukantaganzwa-at-the-eve-of-closing-of-Gacaca-Courts http://www.gov.rw/Interview-with-the-Executive-Secretary-of-National-Gacaca-Service-Domithile-Mukantaganzwa-at-the-eve-of-closing-of-Gacaca-Courts http://data.worldbank.org/data-catalog/world-development-indicators/wdi-2011 http://data.worldbank.org/data-catalog/world-development-indicators/wdi-2011 http://ccj.sagepub.com/ 352 Journal of Contemporary Criminal Justice 30(3) Organic Law n°40/2000 of 26/01/2001governing the creation of Gacaca courts. Government of Rwanda. Author Biographies Hollie Nyseth Brehm is an Assistant Professor of Sociology at The Ohio State University. She studies genocide, crime, law, and transitional justice. Christopher Uggen is a Distinguished McKnight Professor of Sociology and Law at the University of Minnesota. He studies crime, law, and deviance, firm in the belief that good sci- ence can light the way to a more just and peaceful world. Jean-Damascène Gasanabo has a PhD in Education from the University of Geneva, Switzerland. He is currently Director General in charge of the Research and Documentation Center on Genocide within the Rwanda National Commission for the Fight against Genocide. by guest on September 21, 2014ccj.sagepub.comDownloaded from http://ccj.sagepub.com/ 
work_jd6x2xgehndfdddmth2rllwr7q	----	Justice and the spatial imagination HAL Id: hal-01258169 https://hal-enpc.archives-ouvertes.fr/hal-01258169 Submitted on 18 Jan 2016 HAL is a multi-disciplinary open access archive for the deposit and dissemination of sci- entific research documents, whether they are pub- lished or not. The documents may come from teaching and research institutions in France or abroad, or from public or private research centers. L’archive ouverte pluridisciplinaire HAL, est destinée au dépôt et à la diffusion de documents scientifiques de niveau recherche, publiés ou non, émanant des établissements d’enseignement et de recherche français ou étrangers, des laboratoires publics ou privés. Justice and the spatial imagination Mustafa Dikec To cite this version: Mustafa Dikec. Justice and the spatial imagination. Environment and Planning, 2001, �10.1068/a3467�. �hal-01258169� https://hal-enpc.archives-ouvertes.fr/hal-01258169 https://hal.archives-ouvertes.fr Introduction In an article published almost two decades ago, G H Pirie (1983, page 472) wrote: `̀ It would be a pity indeed if the busyness of political philosophers was to go completely unnoticed by spatial theorists and applied researchers. Equally, it would be a pity ... if this essay were to stand alone as a review of implications of that busyness.'' In that article, entitled `̀ On spatial justice'', Pirie reflected `̀ on the desirability and possibility of fashioning a concept of spatial justice from notions of social justice and territorial social justice'' (page 465). The present paper offers yet another reflection on the notion of justice as it relates to space and spatiality, to point to the ways in which various forms of injustice are manifest in the very process of spatialization, and the ways in which an increased awareness of the dialectical relationship between (in)justice and spatiality could make space a site of politics in fighting against injustice. As will become clear further through the text, the conceptualizations of both justice and space differ from the ways Pirie once viewed them. The paper is organized in five sections. The first section is a brief review of the geography literature which engages with the notion of justice, and serves to outline the theoretical position assumed in this paper. The second section provides an urban context in which a notion of spatial justice may be conceptualized. The third section is devoted to such a conceptualization. The fourth section presents the case of French urban policy in order to make the arguments more concrete. The concluding section is an attempt to define an ethico-political ground on which emancipatory politics in an urban spatial framework may be defended. The paper is conceptual in nature. Examples, however, are provided to stir the imagination as to the ways in which the dialectical relationship between (in)justice and spatiality may be conceived. The examples, there- fore, are used to make this relationship more concrete, rather than attempting to provide a thorough discussion of the cases selected. Justice and the spatial imagination Mustafa Dikec° Department of Urban Planning, University of California Los Angeles, 3250 Public Policy Building, Los Angeles, CA 90095-1656, USA; e-mail: mdikec@yahoo.com Received 13 March 2001; in revised form 9 July 2001 Environment and Planning A 2001, volume 33, pages 1785 ^ 1805 Abstract. I attempt in this paper to conceptualize a notion of spatial justice in order to point to the dialectical relationship between (in)justice and spatiality, and to the role that spatialization plays in the production and reproduction of domination and repression. I argue that the city provides a productive ground for the formation of a spatially informed ethics of political solidarity against domination and repression. A `triad' is articulated to inform such politics, which brings together three notions: the spatial dialectics of injustice, the right to the city, and the right to difference. The notion of spatial justice is employed as a theoretical underpinning to avoid abusive interpretations of Lefebvrian rights in a liberal framework of individual rights. The case of French urban policy is used for illustrative purposes. Finally, the notion of ëgalibertë is introduced as a moral ground on which the triad may be defended. DOI:10.1068/a3467 mailto:mdikec@yahoo.com Geographical encounters(1) `̀ The explicit engagement of geography with morality and social justice'', David Smith (1994, page 4) argues, `̀ dates from the latter part of the 1960s''. There is, of course, good reason to believe this. The movements of the 1960s and 1970s brought to attention issues, such as identity politics, rights to the city, rights to difference, and social justice, to name a few, and have been influential in almost every discipline. Geography was no exception. The first explicit attempt to link justice to geographical terms was made by Bleddyn Davies, who first coined the term `territorial justice' in his 1968 book entitled Social Needs and Resources in Local Services. Davies's conceptualization was norma- tive in nature, designed to assess the distribution of local services with respect to the needs of designated service areas. Approaches of this kind came under close scrutiny with the emergence of the so-called radical geography of the early 1970s. Regional science methods were criticized as being dehumanizing and distracting attention from social problems, and attention, accordingly, `̀ moved on to the processes responsible for spatial disparities in people's life chances: for what was beginning to be recognized as spatial injustice'' (Smith, 1994, page 5). The book that broke new ground came out in 1973. David Harvey, in his Social Justice and the City, sought to push John Rawls's (1971) liberal formulations to its limits, with a territorial twist, and arrived at a notion of `territorial social justice', which he defined as `̀ a just distribution justly arrived at''. Harvey, however, was more interested in the structural dynamics of the capitalist society, and therefore, not merely in distribution but, above all, in issues of production. Rawls's scheme, which did not have production at its core and which, indeed, left it to the workings of the market, would not take him there. Davies's initial conceptualization and Harvey's earlier work have been influential in stimulating research on the spatiality of social justice, and the notion of territorial justice still guides research (see, for example, Boyne and Powell, 1991). A shift in focus occurred with the publication of Iris Marion Young's Justice and the Politics of Differ- ence (1990). Harvey (1992) engaged again with the notion of justice, this time building not on Rawls, but on Young, with an emphasis on forms of oppression as sources of injustice. This was followed, with a diminished interest in Young's formulation, by a modification of his earlier formulation as `̀ just production of just geographical differ- ence''. His central concerns now were uneven geographical development as an intrinsic feature of the capitalist mode of production, and the social construction of principles of justice (Harvey, 1996). Although Young's work was initially embraced, it was later criticized for its `difference'-guided identity politics by scholars seeking strategic forms of essentialism, such as human sameness, as sources of ethico-political solidarity (Smith, 1997; 2000). To recapitulate: geography's engagement with social justice started with an exclu- sive concern on distribution in a Cartesian space (Davies, 1968); continued with an emphasis on production, the workings of the capitalist city, and uneven geographies of capitalism (Harvey, 1973; 1996); shifted focus with a celebration of identity and differ- ence, and an emphasis not on justice and consensus, but on injustice and dissensus (Gleeson, 1998; Harvey, 1992; Merrifield, 1997; Merrifield and Swyngedouw, 1997); and ended up, for the moment, with a problematization of the preoccupation with difference, and a search for universal bonds of solidarity (Smith, 1997; 2000). There have been few studies, however, that have explicitly employed a notion of `spatial justice'. One of these was Steven Flusty's (1994) study of the built environment (1) This section is a condensed version of Dikec° (2001). A recently published review may also be found in Smith (2000). 1786 M Dikec° in Los Angeles, where he argued for an equitable distribution of spatial resources for all to ensure spatial justice given that space is claimed by dominant groups in the society. This, of course, is a most welcome and challenging statement but Flusty, rather than elaborating the notion, focused merely on form to the neglect of the structural dynamics of the particular kind of spatialization that he wanted to analyze. The most recent engagement with the spatial dimension of justice, by explicitly employing the term spatial justice, has been that of Edward Soja (2000) in his Postmetropolis, as part of his ongoing project for the assertion of the spatiality of human life and the formation of spatially conscious politics initiated in his earlier work (1989). The article that opens this paper was an explicit attempt to conceptualize a notion of spatial justice. Pirie's spatial sensibilities were certainly intriguing. However, his conceptualization deserved a reservation. He, admittedly, treated space `̀ in the [then]- familiar way as some kind of container, as an entity or physical expression made up of individual locations and their distance relations'' (1983, page 471). It is a pity that Pirie stopped at what seems to be a perfect starting point (1983, pages 471, 472; emphasis added): `̀ This notion of space is not inviolate. It may also be conceived of as a social creationöas a structure created by society and not merely as a context for society ... . Conceptualizing spatial justice in terms of a view of space as process, and perhaps in terms of radical notions of justice, stands as an exacting challenge and, not unlikely, as the single occasion there might be for requiring and constructuring a concept of spatial justice. ... In spite of the challenge of spatial fetishism, and in spite of the radical assault on liberal distributive concerns, it would be worthwhile investigating the possibility of matching justice to notions of socially constructed space.'' What follows, then, is an endeavour that undertakes this enticing suggestion. Before moving on to the next section, I return briefly to Rawls, and chart some of the criticisms levelled against his work for they provide the agenda around which the present paper is structured. A recurring critique directed against Rawls was his con- viction of a single conception of justice that can rationally be defined, presupposing a rather homogeneous public with no serious conflicts. Later, in his Political Liberalism, Rawls (1993) modified his previous `well-ordered' view of society, recognized conflicts with a postulate of consensus, and admitted that his conception of society as relatively homogeneous in his earlier work was no longer a plausible assumption. His postulate of consensus, however, was not without problems. He was still inclined `̀ to keep incommensurability outside the public realm and admit to it only when reasonable and capable of contributing to his overlapping consensus'' (Katznelson, 1997, page 52). The recognition of this problem guided The Urbanization of Injustice (Merrifield and Swyngedouw, 1997) which was a collection of essays attempting to reconsider the lessons learned from Harvey's Social Justice and the City (1973), in the light of debates around `difference' and `nontotalizing' discourses. The focus, therefore, was not on consensus, but on dissensus and injustice. The conceptual tool for such an approach was provided by Young, according to whom injustice `̀ should be defined primarily in terms of the concepts of oppression and domination, rather than distribution'' (1990, page 192). Although `̀ Young's alternative vision for justice remains inchoate, she certainly provides a powerful theory of injustice''' (Gleeson, 1998, page 89), and the framework she provides seems to be a productive terrain on which to construe a notion of spatial justice, for spatialization (the mode of social production of space) is one of the major systematic producers of domination and oppression: that is, of injustice. Some of the basic tenets of this project may now be discerned. The argument is built around the social production of space, with the idea that the very production Justice and the spatial imagination 1787 of space, which is inherently a conflictual process, not only manifests various forms of injustice, but actually produces and reproduces them (thereby maintaining established social relations of domination and oppression). Such an approach clearly departs from an exclusively distributional approach. This, however, does not negate the importance of distributional issues, since, for example, `̀ when people are utterly excluded from active political participation in city affairs, distributional issues, of the sorts Rawls pinpoints, are often all that is left for communities and groups to organize around and to seek substantive representation'' (Merrifield, 1997, page 202). What should be criticized in the distributive paradigm, therefore, is the tendency to reduce social justice to distribution. I try to reconcile this tension through a notion of spatial dialectics of injustice, in an attempt neither to overvalorize nor to devalorize distributional matters. The attempt here, it should be noted, is not one aimed at refining Rawls's arguments. It is rather to evoke the spatial dimension of justiceövia a notion of spatial justiceöinformed by the charges leveled against Rawls, whose engagement (and liberal political philosophers' in general) with social justice mostly remained as an abstract ideal, `̀ invariably devoid of time and place'' (Merrifield and Swyngedouw, 1997, page 3), and `̀ without the city'' (Katznelson, 1997, page 49). Rawls was obviously weak on the sociospatial front. This might also explain his tendency to ` c̀onceive of individuals as social atoms prior to social relations and institutions'' (Young, 1990, page 27), another source of critique directed against his work, mostly by communitarian scholars (see, for example, Sandel, 1982). Rawls's major concern was the maximization of individual liberty, which would enable indi- viduals to pursue their particular goals in their particular ways without interference. Rights, in his scheme, were used to this end, to foster self-interest, provided that the rights of others are respected. Rawls's moral self, which was prior to social relation- ships, lacked community as constitutive of his or her identity (this situation leads to an `unencumbered self', as Sandel would call it); did not necessarily encourage civic action, and actually contributed to its deterioration (Mouffe, 1992; Skinner, 1992), and his or her `identity' and `differences' went largely unnoticed under a conception of a relatively homogeneous public (Young, 1990). The way in which I try to address this problem diverges my position from that of Young's. Although I draw on her definition of injustice, I do not do so in the name of `difference'. Rather, I turn to Eè tienne Balibar's notion of ëgalibertë (equality ^ freedom) as the ethico-political bond that would inform emancipatory movements, not in the name of a certain particularity, but, rather, in the name of an enactment of equality and freedom. Eè galibertë provides the `universal' bond of solidarity, and more on the notion may be found in the concluding section. Underlying these premises, and indeed the whole endeavour, is the conviction that approaches to, and principles of, justice are time and space specific. A close relation- ship, therefore, between sociospatial specificities and conceptions of justice is assumed. I should like to believe that a sensitivity to the spatial dimension of justice may be developedöespecially in societies where the injustices of spatial dynamics are exposed and largely recognizedöto guide emancipatory movements to suppress domination and oppression in and through space. The city seems to provide a fertile ground for such a prospect. Urban sensibilities The impulses of the 1960s and 1970s were also influential in bringing the `urban question' to the political agenda. Two major reasons for the development of an urban sensibility in this period may be noted. First, there was a growing reaction to the 1788 M Dikec° functional approach to the city, and to the growing emphasis on the city's exchange value to the detriment of its use value. Second, as Alain Bertho (1999) states, there was a search for alternative social movements to the workers movementöfor a polit- ical mobilizing force that was more spatial and urban in nature than the traditional mobilizations based on work. These reasons, of course, may be less confidently stated outside the French political culture. However, it was in this context and for these concerns that Henri Lefebvre conceived the notion of the right to the city. `̀ The right to the city'', Lefebvre (1993, page 435) writes, `̀ cannot be considered a simple visiting right or a return to the traditional city. It can only be formulated as the right to urban life, in a transformed and renewed form.'' It is not simply the right of property owners, in which case policies like zero tolerance might have been legiti- mizedöif not justifiedöbut of all who live in the city. The right to the city, therefore, does not imply a c̀lean' and quaint city where the `good citizens' mingle on its streets, crowding its beautiful parks, and living there happily ever after. As Lefebvre (1996, page 195) argues `̀ it does not abolish confrontations and struggles. On the contrary!'' This, of course, is an unsurprising claim given Lefebvre's conception of the city as the place of simultaneity and encounter, and of rights to be given content through struggle. And he is perfectly sensible to ask the question: `̀ are these not specific urban needs? Is there not also the need for a time for such encounters, such exchanges?'' (1993, page 428). There is, I think, a double message in these questions; an appeal and a critique. The appeal points to the need to (re)claim the right to the city. The critique, on the other hand, stems from Lefebvre's denouncement of the welfare capitalist society as the `̀ bureaucratic society of organized consumption'' where needs are created and institutionalized, where the exchange value of urban space is prioritized over its use value. It was a critique in the context of the 1960s and 1970s when, in France, functionalist and technocratic urbanization processes were under severe critique for eradicating urbanity, and depriving urban dwellers of places of social encounter through the rational ordering of urban space. This critique, in a sense, is a critique of the abstraction of rights from the city, which, I believe, was the motivation for Lefebvre to advance a notion of right to the city. Let me try to clarify this point. A common theme flowing through all the writings of Lefebvre on the city is a critique of the contemporary city, which started to deteriorate in the 19th century with the development and deployment of industrial capitalism and the rise of the modern nation state. In the 20th century, as capitalism dominated all areas of social life, the society was turned into a `bureaucratic society of organized consumption'. Not only consumption was controlled, but the spaces of the society and their production as well, the city being the site where these powers were at work more intensely. In that sense, Lefebvre's attempt can be seen as a political project to rescue the individual from the oppressive and homogenizing processes by asserting his or her right to the city. `̀ The individual does not disappear in the midst of the social effects caused by the pressures of the masses, but is instead affirmed'', he would write. `̀ Certain rights come to light'' (1993, page 435). What, then, happened in the 19th and 20th centuries besides the development and deployment of capitalism, that would lead one to point to the need to reassert rights to the city? And what kind of a right is that; why is Lefebvre so careful to note that it ` c̀annot be considered a simple visiting right''? Let me start with the latter question. Such a conception would bring him too close to the argument Immanuel Kant advanced in his famous text on ``Perpetual peace'' concerning world citizenship and universal hospitality. The stranger, states Kant (1970), cannot claim a right of resi- dence but rather a right of visit. The stranger, upon his or her arrival also enjoys another right, that of hospitality, which suggests that he or she not be treated as an enemy by the host of the territory in question. There is no room for the stranger to Justice and the spatial imagination 1789 claim a right, but simply to enjoy a right to visit or pass through. Besides, this right is conceived as an interstate conditionality, and thus, there is no hospitality for those who do not possess citizenship status in one of the signatory states.(2) The answer to the first question, on the other hand, may be formulated in relation to changing conceptions of citizenship, a notion that has currently been challenged, as, for example, Catherine Wihtol de Wenden (1992) suggests, by two fundamental elements of political context and social tissue: immigration and urbanity. Citizenship originates as rights to the city in a spatial sense, which are now abstracted from the city, from their spatial origins. And this detachment coincides with the periods of which Lefebvre is so critical, and which eventually leads him to proclaim the need to reclaim rights to the city. The city, Engin Isin (1999, page 165) argues, ``has not only been a foreground or a background to struggles for group rights but also a battleground to claim those rights''. These struggles were pursued as `̀ claiming rights to the city as a space of politics'' up until the 17th century, when citizenship and struggles were redirected to center on the state, and eventually, on the modern state since the 19th century. In this sense, Lefebvre's notion of the right to the city is a call to advance an urban spatial approach to political struggles with the participation of all those who inhabit the city without discrimination. `̀ The right to the city, complemented by the right to difference and the right to information, should modify, concretize and make more practical the rights of the citizen as an urban dweller (citadin) and user of multiple services. It would affirm, on the one hand, the right of users to make known their ideas on the space and time of their activities in the urban area; it would also cover the right to the use of the center, a privileged place, instead of being dispersed and stuck into ghettos (for workers, immigrants, the `marginal' and even for the `privileged')'' (1986, page 170; translation from 1996, page 34). The right to the city implies not only the participation of the urban citizen in urban social life, but, more importantly, his or her active participation in the political life, management, and administration of the city. The achievement of these rights, Lefebvre (1986) states, supposes the transformation of the society, of time and space. It is the urban political life which is to be changed, not the city per se. In other words, the right to the city entails not a right to be distributed from above to individuals, but a way of actively and collectively relating to the political life of the city. The urban would then consist of ``a civil society founded not on abstractions but on space and time, as `lived ''' (1986, page 173; emphasis added). The right to the city, therefore, is not simply a participatory right but, more importantly, an enabling right, to be defined and refined through political struggle. It is not only a right to urban space, but to a political space as well, constituting the city as a space of politics. Urban citizenship, in this sense, does not refer to a legal status, but to a form of identification with the city, to a political identity. The construction of this identity through political struggle is enabled by another rightöthe right to difference. The right to difference is complementary to the right of the city. Lefebvre was very clear on this notion, although it somehow ended up with an exclusive focus on differ- ence as particularity. The right to be different, he wrote, is `̀ the right not to be classified forcibly into categories which have been determined by the necessarily homogenizing powers'' (1976a, page 35). His emphasis was on the `be' of the `right to be different', not particularly on the `different' narrowly interpreted as particularity. Therefore, the con- notations were disagreement and contestation (and eventually differing) resulting from a right to `not to subscribe to', and from a `right to be different'. A better translation, perhaps, would be `the right to resist/struggle'. The difference between particularities (2) An elaboration of the notion of hospitality, pointing to the limits and perils of its Kantian version, may be found in Dikec° (forthcoming). 1790 M Dikec° and differences, and the dynamic relation between them were part of Lefebvre's differentialist project. He was critical of the reduction of the differences to the partic- ularities, and the movement from the particularities to the differences was the moment of differing, achieved only through political struggle (Lefebvre, 1981). Solidarity, there- fore, was not built merely around particularities, as Young's (1990) scheme would suggest, for example, but on the will and capabilities to differ. Criticizing the margin- alization of certain groups through identities imposed upon them or through the use of identities that they associate themselves with, and then trying to develop a `politics of identity' in the name of those `differences' to resist such processes, is simply to accept and remain trapped in the already established categories. For Lefebvre particularities existed naturally, but then became difference in the modern world. It is the concept of difference that is created by distanced reflection, and the illusory difference that the individual feels, which, eventually, makes him or her indifferent. He writes (1970a, pages 65 ^ 66): `̀ [D]ifference in act differs ... from the difference merely thought or reflected. The thought and not-lived difference of philosophers and logicians is in opposition with the non-thought and lived difference ... [I]t cannot be reduced to banalized representations: originality, diversity, variety, distinction, etc.'' The right to difference, therefore, is the basis and source of other concrete rights which could `̀ be fully affirmed only beyond the written and the prescribed, in a practice recognized as the basis of social relations'' (1970a, page 45). Differentialism, as he states at the conclusion to his manifesto, `̀ is about living. Not thinking but `being' differently'' (1970a, page 186). Therefore, the rights that Lefebvre conceptualizes are established through lived experience and social relationships, and once established would lead to new ways of life, new social relations, and possibilities to differöeven in relation to the established rights themselves. In this sense, rights, as conceived by Lefebvre, become: `̀ more of a claim upon than a possession held against the world. It becomes a claim upon society for the resources necessary to meet the basic needs and interests of members rather than a kind of property some possess and others do not ... . [I]n terms of rights to the city and rights to political participation, right becomes conceived as an aspect of social relatedness rather than as an inherent and natural property of individuals'' (Holston and Appadurai, 1996, page 197). In claiming these rights, a notion of spatial justice might serve as a mobilizing discourse through the cultivation of a spatial sensibility toward injustice and a spatial culture to fight against it. It might also serve as an ethico-political imperative to avoid the abusive interpretations of these rights, particularly of the right to the city in order to legitimize zero tolerance type of policies. Spatial justice: a conceptualization I begin with three exemplary cases to point to the role of spatialization in the main- tenance and manifestation of injustice. The first one is Harvey's account of the Imperial Foods plant fire in Hamlet. In order to point to the lack of political response to the incident in Hamlet in comparison with one in New York, Harvey writes (1996, page 340; emphasis added): `̀ A similar event in a relatively remote rural setting posed immediate logistical problems for massive on-the-spot political responses (such as the protest demon- stration on Broadway), illustrating the effectiveness of capitalist strategies of geographical dispersal away from politicized central city locations as a means of labor control.'' Justice and the spatial imagination 1791 This was, perhaps, the great lesson that industrial capitalists had learned from the grand strike of July 1969 in Turin, organized by the united syndicates and political parties of the left against increased living costs. The 600 000 workers who united in Turin were not only exploited in the factory, but were dominated in their city as well. Both exploitation and spatial domination were consequences of the logic of the capital- ist mode of accumulation, exploitation was produced and reproduced by social rela- tions of power established under the capitalist production system, and spatial domination was produced and reproduced by the spatial logic of capitalism, contribu- ting further to the domination of a certain group of the population. In this sense, the Turin strike was: `̀ one of the first movements for the right to the city against the pattern in which the city was developed under the pressure of speculation, motivated by the logic of maximum profit'' (Novelli, cited in Lojkine, 1977, page 335). Injustice in the factory was exploitation. Injustice in the city was the domination of urban space, pushing the workers away from the city where rent was no longer affordable. Injustice was at once socially and spatially manifest, and above all, was produced not only socially but spatially as well. The case for the injustice of spatialization was made neither for Hamlet nor Turin. The case, however, was made in the Bus Riders Union (BRU) in Los Angeles, if not explicitly in these terms. The argument was that the Metropolitan Transit Authority's (MTA) transit policies and investment schemes were discriminative against a particular population of transit-dependent bus-riders. The case was brought to court (Labor/ Community Strategy Center versus Los Angeles Metropolitan Transit Authority) as a class action suit on behalf of 350 000 bus riders. It was resolved in 1996 through a consent decree, forcing MTA to reconsider its policies, resulting in a temporary stop of the construction of the planned fixed-rail transit system. What was questioned in the case was the spatial pattern imposed by the MTA on the transit-dependent poor working populations of Los Angeles. In this sense, the BRU: `̀ can be seen as opening traditional notions of civil rights to a more specifically spatial politics revolving around new visions of democratic citizenship and the rights to the city, the rightsöand responsibilitiesöof all urban dwellers to partic- ipate effectively in the social production of their lived cityscapes'' (Soja, 2000, pages 257 ^ 258). Moreover, Soja argues, the BRU case represented an attentiveness to see injustice in its spatial dimension, enticingly signaling the formation of spatially informed practices and politics. What is imminent, perhaps, is the development of a new notion: `̀ I do not mean to substitute spatial justice for the more familiar notion of social justice, but rather to bring out more clearly the potentially powerful yet often obscured spatiality of all aspects of social life and to open up in this spatialized sociality (and historicality) more effective ways to change the world for the better through spatially conscious practices and politics'' (Soja, 2000, page 352). I read these examples as illustrative vignettes that denote both the spatiality of injusticeöfrom physical or locational aspects to more abstract spaces of social and economic relationships that sustain the production of injusticeöand the injustice of spatialityöthe elimination of the possibilities for the formation of political responses (as in the Hamlet case in contrast to the Turin and Los Angeles cases). In the dialectical formulation of the spatiality of injustice and the injustice of spatiality, the spatiality of injustice implies that justice has a spatial dimension to it, and therefore, that a spatial perspective might be used to discern injustice in space (which, of course, can be effectively captured by an analysis of distribution patterns, as the BRU case exemplifies). The injustice of spatiality, on the other hand, implies 1792 M Dikec° existing structures in their capacities to produce and reproduce injustice through space. It is, compared with the spatiality of injustice, more dynamic and process oriented. Such a conceptualization implies two essential points. First, analysis should not be based on the thing under consideration per se, but also on the components of it. Second, form and process are inseparable and should be considered together. How, then, may such an approach be related to space? As Lefebvre puts it: `̀ The dialectic is back on the agenda. But it is no longer Marx's dialectic, just as Marx's was no longer Hegel's ... . The dialectic today no longer clings to historicity and historical time, or to a temporal mechanism such as `thesis-antithesis-synthesis' or `affirmation-negation-negation of the negation'... . To recognize space, to recog- nize what `takes place' there and what it is used for is to resume the dialectic; analysis will reveal the contradictions of space'' (1976a, pages 14 and 17). `̀ (Social) space is not a thing among other things, nor a product among other products ... . It is the outcome of a sequence and set of operations, and thus cannot be reduced to the rank of a simple object ... . Itself the outcome of past actions, social space is what permits fresh actions to occur, while suggesting others and prohibiting yet others'' (1991, page 73). Therefore, the emphasis is not on space per se, but on the processes that produce space, and, at the same time, the implications of these produced spaces on the dynamic processes of social, economic, and political relations. The basic features of the dialec- tical formulation I propose to consider in the relationship between injustice and spatiality are, therefore, as follows: (a) a focus on spatiality as a process; as a producer and reproducer of, and at the same time being produced and reproduced by, relatively stable structures (permanences), (b) recognition of the interrelatedness of injustice and spatiality as producing, repro- ducing, and sustaining each other through a mediation of larger permanences that give rise to both of them. In this sense, the notion of spatial justice is a critique of systematic exclusion, domi- nation, and oppression; a critique aimed at cultivating new sensibilities that would animate actions towards injustice embedded in space and spatial dynamics. The aim is to explicate an ideological discourse on the spatiality of (in)justice, informed by the two notions of the right to the city and the right to difference and resistance, into which such emergent movements as the BRU may insert themselves. Under a larger, but not a totalizing, conception of justice, it is useful to assess the processes that could be the sources and resources of injustice in their specific contexts, as similar processes may produce different consequences in different contexts. Focusing on processes in their relationships and implications would be a reformulated dialectical approach as opposed to focusing on fixed forms or distributive consequences under a universal stencil of justice. Such an approach helps not to discern whether a particular event is just or unjust, but rather, to explore the dynamic processes of social, spatial, economic, and political formations in order to see if they operate in such a way to produce and reproduce dominant and oppressive permanences which would be considered as being unjust. In a spatial sense, domination as a form of injustice manifests itself in space; most visibly in the built environment but also in the other various forms of less visible (or not visible at all) spaces of flows, distributions, networks, and institutions. More importantly, space and the processes of spatialization play a major role not only in the production of the conditions of domination, but also in their reproduction and survival as an indispensable manipulative tool for the existing mode of production (that is, capitalism). How, then, do the three notions I have employed thus faröspatial justice, the right to the city , the right to differenceöcome together as part of an emancipatory politics? Justice and the spatial imagination 1793 In what follows, I shall offer a `triad' that brings together these notions, and defines the parameters of a spatially informed emancipatory politics. At this point, I still remain vulnerable to charges that the argument about these notions is too abstract, and that the term `emancipation' continues to be unpleasantly ambiguous. I attend to these issues by presenting the case of French urban policy in the next section, focusing particularly on a law passed in 1991 in order to fight against the problem of socio- spatial exclusion. The case presents an opportunity for the articulation of the notions of spatial justice, the right to the city, and the right to difference, and demonstrates a context in which the injustice of spatial dynamics is recognized. The observations drawn from the case form the basis of a spatial politics of emancipation, which I clarify in the concluding section drawing from Balibar and Rancie© re. The triad consists of three notions: the spatial dialectics of injustice (the spatiality of injustice and the injustice of spatiality), the right to the city, and the right to difference. I articulate these notions as the parameters of an `ideal of ëgalibertë' (equal- ity ^ freedom); that is, the suppression of domination and repression, achievement of which would imply a moment of emancipation. The argument is that Lefebvre's two rights, which have been the subject of much intellectual effort aimed at emancipatory politics, provide a better framework when articulated with a `spatial dialectics of injustice'. This, indeed, seems to be a necessary underpinning in order to resolve the paradox rising from decidedly individualistic versus collective interpretations of these rights (for example, zero tolerance versus À city center for all').(3) Such an approach is informed not only by the premise that spatial dynamics play an essential role in the production and reproduction of injustice, but also by the premise that they permit, as well as prohibit, the formation of rights claims and the ways and extent to which rights are put into action and practised. The triad provides a common lexicon(4) and conceptual apparatus, which then could cultivate an ` èthico-political bond'' (Mouffe, 1992, page 231), or an `̀ ethics of political solidarity'' (Harvey, 1996, page 360) to inform emancipatory movements of those(5) who are, to name a few, `̀ trapped in space'' (Harvey, 1989), ` c̀hained to a place'' (Bourdieu, 1999), `̀ disabled by the social production of space'' (Gleeson, 1998), excluded by urban entrepreneurialism (Hall and Hubbard, 1996), or expelled through urban renewal projects (Leroux, 2001). The bond is ethical in the sense that it is nurtured through social relatedness, rather than assumed as an ontological given. Such a con- ception is necessary to imply that forms of morally defensible practices must be socially negotiated, through engagement, rather than being manipulated by the anxieties of dominant groups in the city. And the bond is political in the sense that it entails antagonism and contestation, and not always an effortless reconciliation, for the simple reason that the very production of space is decidedly political (see, for example, Lefebvre, 1976b). As for the way in which the individual components of the triad relate to one another, the notion of spatial (in)justice sets the parameters by which the right to the city may be assessed, violations of which are resisted through a right to difference. (3) À city center for all' is an association in Marseille, currently fighting against speculative forces generated by urban renewal projects, which force out the immigrant population from the city center. See Leroux (2001). (4) Michael Keith (1997) employs a similar notionö`vocabulary of resistance'öin his work on young Bengalis in London's East End, and shows how such a common lexicon serves as a bond in their struggle against racism. (5) This, of course, must not be interpreted as implying merely `those who are affected', but be seen in the light of the notion of ëgalibertë. In this sense, these movements represent a resistance against the negation of socially enshrined principles (in this case, of the suppression of discrimination and exclusion), against the negation of humanity as such (Balibar, 1997). This is the universal bond that coalesces not only those who are affected, but all who wish to negate the negation of humanity. 1794 M Dikec° And there is good reason to believe that such a spatial sensitivity to (in)justice may be developed, especially in societies, such as France, where the spatial dynamics of social exclusion are widely recognized. David Miller's thesis endorses this likelihood, according to which people: `̀ hold conceptions of social justice as part of more general views of society, and ... acquire these views through their experience of living in actual societies with definite structures and embodying particular kinds of interpersonal relationship'' (1976, page 342). It is now timely to introduce the French case to demonstrate the ways in which these rights may be articulated with a `spatial dialectics of injustice'öinjustice understood as domination and repressionöand how such an articulation may inform emancipatory politicsöemancipation understood as the suppression of domination and repression. Right to the city: beyond homage to Lefebvre? `̀ The political strategy implies: a) Introducing the urban problematic into (French) political life, pushing it to the forefront; b) Elaborating a program of which the first article will be widespread self-manage- ment [autogestion]...; c) Introducing... the `right to the city'.'' Henri Lefebvre, `̀ Towards an urban strategy'' (1970b, page 199) French urban policy, Daniel Bëhar (1999) wrote, has probably been the most commented upon public policy of the last fifteen years. What he refers to here, it should be noted, is not French urban policy in general, but a particular one that was initiated in the 1980s with the `spatialization of social policies' (Bertho, 1996; 1999; Chaline, 1998), and regrouped later in 1988 under the generic term la politique de la ville as a national urban policy. The use of the term `urban policy' hereafter refers to this specific policy. The attempt here is not to provide a full account of French urban policy, but, rather, to take this policy by way of an example in order to; first, make more concrete what the dialectical formulation between injustice and spatialityöthat is, spatiality of injustice and injustice of spatialityöimplies; second, to illustrate how some of the notions discussed in abstract ways, such as the right to the city, are implied in urban policy; and, third, to consider some possible implications of the notion of spatial justice for urban policy in general. The origins of urban policy go back to the first Housing and Social Life plan of 1977 (Habitat et vie sociale), which was originally conceived for the restoration of large housing blocks (grands ensembles) built by the state to meet the housing short- age in the 1960s (the period during which Lefebvre conceived the notion of the right to the city). Since then, with policies such as the 1981 Social Development of Neigh- bourhoods (Dëveloppement social des quartiers), which, in 1989, became Urban Social Development (Dëveloppement social urbain), the main focus of urban policy in the French state's fight against exclusion (for which a city minister was appointed in 1991) has been the most deprived areas of cities (`quartiers en difficultë'). Urban policy has been largely affected by political changes and incidents of vio- lence, being modified by all successive governments, and today it is recognized that it has become quite complex and difficult to assess in terms of effectiveness. Originally developed around the idea to identify and rehabilitate `neighborhoods in difficulty', the concern of urban policy today is `̀ no longer a question of curbing urban violence and restoring a few degraded housing blocks that are poorly situated'' (Lelëvrier, 1999, page 35). Today the underlying problem is defined as segregation and exclusion. Justice and the spatial imagination 1795 The two basic notions around which urban policy is conceived are concentration and exclusion (Lelëvrier, 1999). The `urban and social degradation' is largely attributed to the concentration of `problem populations' in certain areasömainly the large housing blocksöa situation which aggravates the marginalization of individuals. Such a concentration is seen to contribute further to the problem of exclusion. Regard- ing the notion of exclusion, a key work has been that of Lenoir (1974), who showed that exclusion was not simply limited to a few victims of economic circumstances, but was a structural problem with its own dynamics. Exclusion, in other words, was not merely an economic question, but a social and urban one as well. As Daniel Bëland and Randall Hansen (2000, page 55) state, `̀ while the long-term unemployed are the archetypal example of les exclus, they are not the sole example. The concept of l'exclusion is meant also to describe a multi- plicity of situations in which the individual is prevented from participating, even temporarily, in society.'' Defining the problem as one of exclusion is to recognize; first, the spatial (abstract and concrete) dimension of the problem; and second, the presence of a group of the included against which the category of the excluded may be defined. This implies that there exists a process of exclusion that actually leaves certain individuals and groups outside the category of the included. The process, of course, has many dimen- sions, and could be approached from a variety of epistemological and methodological perspectives. There is, however, an important dimension to it which has recently been largely recognized in the growing literature on exclusion: the spatial dimension (see, for example, Byrne, 1999; Madanipour, 1998). The spatial dimension of exclusion is also recognized in the French policy circles. The `exclusion problem' entered the agenda of public debate in the 1980s, during the period in which urban policy was conceived. The effect of this conception on urban policy has been an awareness that: `̀ the social division between those who are in or out became an `urban division' between `normal', `ordinary' neighborhoods and èxclusion' neighborhoods which concentrate the misfortunes of our society. Those who are èxcluded' from society become `excluded from the city''' (Lelëvrier, 1999, page 35; emphasis added). Those who are èxcluded', in other words, are also deprived of their rights to the city. French society was moving, in the words of Alain Touraine (1991, page 12), from a `̀ society of discrimination'' to a `̀ society of segregation''. The notion of segregation was effective to capture the spatial dynamics and manifestations of the social exclusion problem, a problem of which elimination was one of the major missions of the first City Minister, Michel Delebarre, in 1991. The Urban Development Act of 13 July 1991 (Loi d'orientation sur la ville, known as LOV, also as the anti-ghetto law) was conceived with these concerns in mind. The LOV was published in the official journal (Journal Officiel de la Rëpublique Franc° aise) on 19 July 1991, and the first article read: `̀ In order to realize the right to the city, urban districts, other territorial collectivities and their groupings, the State and its public institutions assure to all the inhabi- tants of cities conditions of living and dwelling promoting social cohesion as to avoid or abate the phenomena of segregation. This policy must provide for the insertion of each neighborhood [quartier] in the city and assure the coexistence of diverse social categories in each agglomeration. The reverberation of Lefebvre's conceptualization of the right to the city is clear: `̀ To exclude the urban from groups, classes, individuals, is also to exclude them from civilization, if not from society itself. The right to the city legitimates the refusal to allow oneself to be removed from urban reality by a discriminatory and segregative organization'' (Lefebvre, 1996, page 195). 1796 M Dikec° However, the LOV was vulnerable to the criticism that it was implicitly envisioning `̀ a correspondence between residential mixity and social harmony'' (Simon, 1995, page 30). In this case, French urban policymakers made not one mistake, but two: trying to resolve some kind of perceived spatiality of injustice (that is, segregation and the resulting deprivation of the right to the city), and failing, in this attempt, to conceptualize the problem and conceive policies around the structural dynamics of a mode of spatial organization that constantly produces injustice öif not here, some- where else. The question is not whether or not at some point some form of injustice is spatially manifested. The question is whether or not this spatially manifested injustice is produced and reproduced spatially (as well as socially). And the question that follows is this: what are the spatial dynamics, in the production and persistence, of this injustice? This is the interplay between the spatiality of injustice and the injustice of spatiality. If one holds the hypothesis that space is socially producedöand is not simply a containeröthere are important implications to be drawn from the `segregation problem': segregation is not a question of distribution in space, but of spatialization itself. It is the very structural dynamics of the spatial organization processes in the cityöand not simply some `distributive force' external to space, distributing each to his or her `proper' place. And these dynamics; first, contribute to the formation of such segregated areas with a concentration of poverty; second, force a certain group of the population to locate in these places, making it even more difficult for the individuals to participate in the society; and third, further reduce the chances of relocating not only for the immediate population, but, perhaps, for the generations to come unless the spatial dynamics are modified. In other words, such spaces are not simply by-products, mirrors, or stages of various forms of injustice; they are constituted by and constitutive of them. The basic idea behind the 1991 LOV, then, has been to `integrate' or `insert' the èxcluded' into the city through urban policies. Such a conception, of course, was vulnerable to charges on many fronts. Two of them, at least, seem too important to be overlooked. First, designation and delimitation of `problem areas' further contribute to the stigmatization and victimization of the population living in those areas. And second, the logic of `insertion' or `integration', clearly derived from the republican ideal of the one and indivisible French Republic, implies assimilation, on the one hand, and hostile partitioning of the society, on the other (for further discussion of these issues, see, among others, Baudou|« , 2000; Bertho, 1996; 1999; Faber, 2000). In addition to these, the notion of the right to the city, which opens the LOV as the first article, is not clear as to its implications. The temporary residents' situation, for example, is totally ambiguous as no attempt was made to link this notion with the notion of citizenship. The use of this notion, therefore, seemed merely `̀ a homage to the work of Henri Lefebvre''.(6) This was a sensible assessment; the catchphrase, without deliberate elab- oration and careful consideration of larger structural issues, appeared unable to deliver its promises. A letter was then circulated on 31 July 1991 to clarify the articles of the law, which stated that the opening article had `̀ no normative nature''.(7) The pursuit of a right to the city, which would imply a major reconsideration of the dynamics of both urban space (for example, property market, housing and land-use policies) and the demos (that is, citizenship), was therefore repudiated. (6) When the LOV was in preparation, a seminar was organized that brought together law-makers, researchers, and scholars. The minutes of the seminar were then published in Recherches 20 `̀ Loi d'orientation pour la ville: sëminaire chercheurs dëcideurs'' (Paris, Ministe© re de l'ëquipement, des transports et du logement, 1991). The comment was made by Vëronique De Rudder, page 36. References below to Balibar (1991) are also from this seminar. (7) See Circulaire no. 91-57 relative a© la loi d'orientation pour la ville no. 91-662 du 13 juillet 1991. Justice and the spatial imagination 1797 As important as these criticisms are, there are significant implications of the way in which urban policy is conceived in France. First, the state has recognized that the mode of urban spatial organization, inter alia, deprives certain individuals and groupsöidentifiable not only socially but spatially as wellöof their rights to the city, which are yet to be given content. Second, with the `̀ territorialization of social policies on the terrain of the city'' (Bertho, 1996, page 107), French urban policymakers, implicitly or explicitly, `̀ accept[ed] certain cause and effect relationships between the city and forms of `social disorder'' (Lelëvrier, 1999, page 35), with a hope, perhaps, of `̀ changing life through changing the city'' (Lëgë, 1995, page 34). The social and the spatial, in other words, were conceived to be mutually affecting each other in the production and aggravation of various social problems as well as in the attempts to resolve them. This point opens the way into a discussion of the notion of spatial justiceöthe particularities, flaws, and effectiveness of the policy notwithstanding. What flows from this point, however, is not that spatial interventions will automati- cally solve social problems in the city. Such a conviction has already been realized as a problem with urban policy in France (see, for example, Bëhar, 1999; Bertho, 1996). The important point is that the production and persistence of social problems in the city are largely affected by modes and forms of spatial organization. There is enough evidence to note that intensification of social inequalities in space is accompanied by a stabilization of the conditions of the concentration of poverty (Bëhar, 1999). Spatial dynamics, therefore, not only aggravate, but actually produce injustice through the stabilization of social inequalities and problems, becoming a major reproducer of them. Seen in this way, urban policy `̀ is no longer confronted merely with circum- stances of the absolute concentration of poverty, but with a multiplicity of territorial dynamics of social devalorization'' (Bëhar, 1999, page 216; emphasis added). The con- clusion to be drawn from these remarks is simple: if the problems of inequality, exclusion, segregation, and social devalorization enter the sociopolitical agenda as concerns of justice, it is as important to consider the ways in which: first, such problems are manifested spatially; and second, and more importantly, such problems are produced and reproduced spatially, through the very production of space. Injustice and its persistence, in this sense, is the product of spatial dynamics. One more point needs to be emphasized. Segregation is an intrinsic part of urban spatialization, and in no way unique to France. Besides, segregation does not intrinsi- cally carry a negative connotation; its prohibition may also be coercive (see, for example, Young, 1999). In this sense, the LOV may be charged by arguing that it was premised on a `mythical ideology of good mixity', treating segregation merely as a result to the neglect of the fact that it is voluntarily created as well [Rëmi Baudou|« , Director of ACIV (Action Concertëe Incitative Ville) at the Ministe© re de la Recherche, Paris, personal interview 26 June 2001]. However, the French case makes clear that there exists a population, living in poor conditions compared with other parts of the city, which is at once socially excluded and spatially segregated, and not always voluntarily. The point here is about segregation as a spatial mode of social exclusion as it relates to concentration of poverty in certain areas, as one of the structural dynamics of social exclusion; that is, the social processes and spatial practices that produce and reproduce socially excluded groups. Therefore, an intervention is necessary `̀ on the principles and norms of urban practices that produce socio-spatial exclusion'' (Bëhar, 1995, page 13). Seen in this way, `̀ the `pathology' of these particular neighborhoods is due less to their mono-func- tionality or to their social specialization than to the rigidity of urban forms that hinder ordinary processes of social appropriation and temporal evolution'' (Bëhar, 1995, page 14). 1798 M Dikec° The problem, in other words, is not `̀ a simple phenomenon of localized exclusion'' (Lëgë, 1995, page 42). Such a conceptualization of the problem would be the spatiality of injustice, in a static sense, which could probably have been addressed, if not with complete success, by policies of `integration'. This, however, is not the case. The socio- spatial exclusion problem is constantly produced and reproduced by the ways in which the society is spatially organized, by ways that defy the rehabilitative capabilities of urban policies conceived to remedy the situation. This, precisely, is what is implied by the notion of injustice of spatiality, which draws attention to the structural dynamics of spatial practices as sources and resources of unjust sociospatial practices and/or their unjust consequences. The interplay between the twoöspatiality of injustice and the injustice of spatialityöis important as it implies that although the spatiality of injustice may be captured as a snapshot, so to speak, of spatial practices (for example, segregated neighborhoods, public transportation network, the dominated city center, etc), the policies and actions conceived to address the issue should take into consideration the structural dynamics of spatialization (for example, the organization of property markets, housing, rent, and tax policies, etc), which the notion of the injustice of spatiality tries to capture. This is to reconcile the tension between overvalorizing and overlooking distributional issues. The focus, therefore, is not merely on how spatializa- tion affects distribution, but also on how it stabilizes distributional patterns. Promoting (through, for example, land-use policies, housing market arrangements, entrepreneurial strategies, etc) or simply not interfering withöand therefore allowing the persistence of dynamics of structural exclusionöspatial practices that draw rigid boundaries and that cause and contribute to the domination and repression of certain groups, and then asking questions about social justice ignores the structural spatial dynamics of injustice. The production of space, in this sense, has to be at the core of any examination of injustice for it plays an essential role not only in distribution but also in production and reproduction. Thus, in the French case, it was a certain form of spatialization that contributed largely to the production of the socially excluded. It was, moreover, this form of spatialization that kept them excluded, reproducing the exclusionary processes. Conclusions: politicizing the urban spatial `̀ Space is a doubt: I have constantly to mark it, to designate it. It's never mine, never given to me, I have to conquer it.'' Georges Perec (1997, page 91) `̀ In the case of ideologies of what is good and right it may be space rather than time that is crucial. Something may be good and just everywhere, somewhere, here or elsewhere.'' Goren Therborn (cited in Cresswell, 1996, page 3) `̀ The limits of just and unjust'', Voltaire once wrote, `̀ are very difficult to set down; like the middle state between health and illness, between the appropriateness and inap- propriateness of things, between the false and true, is difficult to mark'' (1961, page 913). It would, similarly, be very difficult, and hardly desirable, to discern the line between justice and injustice as they relate to spatial practices. For this reason, perhaps, it is best to conceive the notion of spatial justice, with the rights to the city and difference, in relation to a `universality of an ideal', as exemplified by Balibar's proposition of ëgalibertë (equality ^ freedom). Eè galibertë signifies the unconditional `differential' push in the collective process of struggle for the suppression of discrimination and repression. Balibar (1997) defines èquality' as nondiscrimination, and `freedom' as nonconstraint (nonrepression), both of which remain open to diverse determinations depending on the circumstances. Elim- inating or simply fighting against discrimination necessarily implies the elimination Justice and the spatial imagination 1799 or the fight against repression and vice versa (the impossibility of freedom without equality and of equality without freedom). Hence the notion of ëgalibertë. The joint suppression of discrimination and repression implies emancipation. Balibar's propo- sition, as a politics of emancipation, has important implications for the current project for two major reasons. First, ëgalibertë, as an ideal of nondiscrimination and non- repression, remains as an indestructible resource of insurrection against the existing order, reborn and re-experienced in diverse situations, places, groups, etc. It is achieved through a collective process, through a political struggle `against oppression, social hierarchies, and inequalities'. Equality and freedom, in this collective process of the suppression of discrimination and repression, therefore, ``can never be granted, distributed among individuals, they can only be conquered'' (Balibar, 1997, page 446; emphasis added). This has close resonance with Lefebvre's differentialism and the rights to the city and difference, for both rights are constantly redefined and acquired through political struggle, and they are not procedural and normative in nature. The ideal, then, is to conquer, through a collective process, the spaces (the right to the city) and means (the right to difference) of this struggle. In this sense, the resonance with ëgalibertë would be thus: the right of all city habitants to participate in the political life of the city (fighting against discrimination), and their right to political struggle of resistance (fighting against repression). What is implied is not simply a political movement, but a transformation of the political itself. What is implied is a right to politics, meaning that ``no one can ever be emancipated from outside or from above, but only by his/her own action and its collectivization'' (Balibar, 1997, page 446). Jacques Rancie© re (1995, page 70), in this sense, was perfectly sensible to state that ``the question is not only `How are we to face a political problem?' but `How are we to reinvent politics?'''. The second implication of Balibar's ëgalibertë has to do with the notion'söas a universality of an idealötransindividual nature. This does not only refer to a collective process of struggle against discrimination and repression, but also to its universal symbolic dimension as a politics of emancipation, which means that `̀ it does not depend on the extension of its influence or its popularity'' (1997, page 447). The struggle, therefore, is not aimed at defending `̀ the rights of a particular group in the name of that particularity itself, but [at] proclaiming that the discrimination or exclu- sion that strikes that particular group represents a negation of humanity as such'' (1997, page 453). What is changed, at the end of the day, is the very political itself: the struggle does not delineate an identity-defined community but a solidarity in the collective process of the elimination of discrimination and repression, in achieving ëgalibertë, which always remains as the element of subversion of the existing order. In order to discern more clearly the implications of ëgalibertë as they relate to the arguments advanced in this paper, it would be helpful to consider Balibar's reflections on the French LOV presented above, focusing particularly on his remarks on the right to the city. According to Balibar (1991, page 65), any notion of right necessarily implies some realization of equality and freedom, or, better yet, `̀ some way of defining and instituting the balance between equality and freedom''. Although the reference to equality is explicit in the LOV, there is no reference to freedom: it is largely presup- posed under the conditions of the free market. In other words, how this right (the right to the city)öequally distributedöwill be freely enjoyed by all city inhabitants (although the status of noncitizens and temporary residents is totally ambiguous) remains overlooked. The allusion to equality in the LOV, however, is not without problems. It suffers from an ambiguity, caused by the oscillation between two conceptions of equality: arithmetical (egalitarian) and qualified or proportional equality. In this sense, the 1800 M Dikec° law sometimes implies an ``egalitarian redistribution of a service or an indivisible good, situated beyond individual property, that in sum would be the urban as such, or the quality of urban life''. Sometimes, however, it implies a conception of equality that would ``attribute each individual or group a good corresponding to its rank; that is, to its financial means, and material and cultural needs'' (Balibar, 1991, page 66). What will equally be granted to individuals or groups, in other words, is not clear. The former conception would probably demand a definition as to the meanings `urban' or `quality of urban life', which would then be assumed to be enjoyed by all inhabitants. The state's role then would be to provide the desired qualities (including quantity) of the service in question or urban life in general. (`Here is a beautiful city for you, enjoy it!') The latter would probably imply defining some form of criteria and ensuring the `rules of the game' according to which each individual or group would get their due (`You are eligible for social housing, but feel free to join the gentrificators in the city center should your financial situation improve'). Both positions are premised on a notion of the right to be defined and granted `from above'. Balibar, however, has in mind a third notion of equality, neither distributive nor participatory, but an openly civic one (a new ethics and politics). Informed by such a conception of equality, he argues, ``talking about the right to the city would be a way of indicating that the city becomes as such a polis, a political collectivity, a place where public interest is defined and realized'' (1991, page 66). Is this not what Lefebvre also had in mind with his notion of the right to the city complemented by the right to difference? Such a perspective above all implies a conception of the city that goes beyond an administrative entity, and makes it the place in and over which the terms of the right, or, better still, the nature of relationships between state, society and its space are negotiated. The right to the city implies not only a formulation of certain rights and the cultivation of the political among city habitants, but also a reconsideration of the spatial dynamics that make the city. Therefore, it should not be conceived merely as a practice of claiming and asserting rights, but should also be conceptualized in a way that puts on the agenda the dynamics (such as property markets) and principles (such as urban policy, land-use policy, planning laws, etc) of the ways in which social relations are spatialized in the city. The triad I propose, in this sense, is an attempt to address this issue via a notion of spatial justice that calls into question the dynamics and principles which manifest themselves spatially in the city. Besides, it seems necessary, should the Lefebvrian notion be used, to conceptualize a notion of spatial justice in order to be able to distinguish between appropriation and domination of urban space in the name of a right to the city. Neil Smith's (1997, page 134) example of the claim of and the counterclaim against homeless people, both of which appeal to the same source for justification, exposes `̀ the doubleness inherent in the system of abstract justice based on individual rights''. The claim of homeless people poses the following question: `̀ Why do we as homeless individuals have no right to housing?'' The counterclaim, against this, and using the same source of appeal, presses another question: `̀ Don't I have a right to live without homeless people messing up the neighborhood?'' The first question, as Smith states, is `̀ over and against individualism'' whereas the second stands for a `̀ reasserted individu- alism''. This is a remarkable example for it depicts the perils of a right to the city discourse interpreted in the liberal framework of individual rights. The notion of a right to the city implies not only a spatial change, but a societal one as well, for the ways in which the notion is conceived and justified depends largely on the society itself, its political culture included. In other words, the right to the city might vary drastically depending on the society in question, especially if the demos is marked with clear and Justice and the spatial imagination 1801 rigid demarcations. In the Greek polis, for example, the right to the city was arguably practised perfectly with the exception of women and slaves. To take a recent example, there is nothing to prevent the Mayor of New York Rudolph Giuliani from advancing a `right to the city' (for some but not for others), and enforcing zero tolerance policies in its name, unless a new societal ethics is cultivated by the living togetherness of all city inhabitants. How, then, could one overcome this paradox, and conceive a right to the city (and to difference as well) as part of an emancipatory politics? Through the `heterology of emancipation', I would argue following Rancie© re that, ``the logic of political subjectivization, of emancipation'', ``is a heterology, a logic of the other, ... it is never the simple assertion of an identity'' (1995, page 68). Even the workers' movement was not an assertion of identity. Proletarii, in Latin, meant ``prolific people''ö``people who make children, who merely live and reproduce with- out a name, without being counted as part of the symbolic order of the city''. Proletarians, therefore, did not imply a particular identity; it was rather `̀ the name of anyone, the name of the outcast: those who do not belong to the order of castes, indeed, those who are involved in undoing this order'' (Rancie© re, 1995, page 67). There- fore, their movement, as one of emancipation, did not imply a selfish reassertion of individuality, but an enactment of equality and freedom. `̀ One can object that the idea of emancipation is historically related to the idea of the self in the formula of `self-emancipation of workers'. But the first motto of any self- emancipation movement is always the struggle against `selfishness'. This is not only a moral statement (for instance, the dedication of the individual to the militant community); it is also a logical one: the politics of emancipation is the politics of the self as an other, or, in Greek terms, a heteron. The logic of emancipation is a heterology'' (Rancie© re, 1995, page 65). Seen in this way, ëgalibertë, as an enactment of equality and freedom, provides the universal that transcends particular identifications. The triad I have offered, in this sense, defines the spatial parameters of a struggle against discrimination and repre- ssion. The formation of a sensibility to the spatial dimension of injustice (for example in the French case mentioned above) could be considered as a transcendence of tensions rising from particular group interests in the city (segregation, sociospatial exclusion, etc) through a universality as an ideal, through the development of a con- sciousness nurtured by living together and sharing space, and through a (civic) ideal of ëgalibertë. If the city remains a site of structural sociospatial exclusion, where domi- nation is legimated, not only does such a consciousness remain undeveloped, but, worse still, it remains misdeveloped; that is, it gives rise to sociospatial exclusion in and against the city. All this is not to imply that the city, through its evolution, has not been the site of exclusion and segregation. Neglecting this fact would be a nostalgic fallacy. Legitimating, even fostering, this fact, however, would be a fatal flaw, engen- dering zero tolerance type of politics. How, then, would the formation of such a consciousness contribute to the struggle against injustice? How could a spatially informed and sensible politics of resistance use space in the fight against injustice? How, in other words, could a spatial content be given to such a politics of emancipation? Four approaches, following Garber (2000, pages 267 ^ 269), may be distinguished, which, of course, are not mutually exclusive, and which could also work against emancipatory (ëgalibertë) movements. A politics of resistance could use urban space in particular ways so that; first, people act from space, politically mobilizing from the material conditions of their space, and seek alternative spatializations (for example, the Paris Commune, the Los Angeles riots, the Turin strike, the BRU case); second, people act on space, to appropriate or to dominate it with a group identity (for example, appropriation of the Tompkins Square Park in New York, but also the formation of 1802 M Dikec° gated communities); third, people act in space, taking it to the streets for debates, displays, protests or violence (for example, the Paris Commune, May 1968, the Los Angeles riots, the Turin strike); and finally, people make space, creating the conditions to expand the public political involvement through the linking of metaphorical space and politics (for example, in Harvey's account above, the formation of a political response in New York, but not in Hamlet, the organization of the BRU case). Although space most often appears as a means of control and domination, for this very reason it also carries the seeds of significant resistance (Cresswell, 1996). What, then, are the substantive implications of the notion of spatial justice? Two mutually constitutive prospects may be discerned. First, it might provide a conceptual apparatus that could be given normative content to guide the actual production of urban space. Second, its discursive development and deployment might inform emancipatory politics willing to confront spatial dynamics that produce and reproduce various forms of injustice. Both prospects, of course, will depend on the society in question, and the meanings attached to principles of justice. Justice, after all, is a contingent `̀ reification of commensurability'' (Dimock, 1997, page 6), not an ontological given. Acknowledgements. This paper was originally conceived for a seminar on planning theory taken with Edward Soja in the Department of Urban Planning, UCLA, Spring 1999. I am indebted to him for the initial idea for this project, for his sustained encouragement, as well as for many useful and pleasant discussions. I have also enjoyed the comments from and friendships of Rëmi Baudou|« , Julie-Anne Boudreau, Marco Cenzatti, Liette Gilbert, and Raymond Rocco. Three anonymous referees provided challenging criticisms and much appreciated suggestions. All responsibility, it goes without saying, remains mine. Parts of this essay were drafted while I was a participant in UCLA's Paris Program in Critical Theory. The generous financial support of the Program and of UCLA's Urban Planning Department is gratefully acknowledged. References Balibar Eè , 1991, comments in the minutes of a seminar, in `̀ Loi d'orientation pour la ville: sëminaire chercheurs dëcideurs'' Recherches 20 Balibar Eè ,1997 La craintedes masses: politiqueetphilosophieavantetapre© s Marx [The fearof masses: politics and philosophy before and after Marx] (Galilëe, Paris) Baudou|« R, 2000, `̀ Baª tir la ville du troisie© me me millënaire: regards sur les politiques urbaines franc° aises et la question du multiculturalisme'' [Building the city of the third millennium: thoughts on French urban policies and the question of multiculturalism], paper presented at the Cities and Cultural Diversity in France and the Francophone World Symposium, organized by the French Department of University of California, Los Angeles; a translated version also appeared in Critical Planning 7(2), 117 ^ 126 Bëhar D, 1995, `̀ Banlieues ghettos, quartiers populaires ou ville ëclatëe? L'espace urbain a© l'ëpreuve de la nouvelle question sociale'' [Ghetto suburbs, working class neighborhoods or fragmented city? Urban space put to test by the new social question] Les Annales de la recherche urbaine 68 ^ 69 7 ^ 14 Bëhar D, 1999, `̀ En finir avec la politique de la ville?'' [Putting an end to urban policy?] Esprit 258 209 ^ 218 Bëland D, Hansen R, 2000, `̀ Reforming the French welfare state: solidarity, social exclusion and the three crises of citizenship'' West European Politics 23(1) 47 ^ 64 Bertho A, 1996 La Crise de la politique: du dësarroi militant a© la politique de la ville [A crisis in policymaking: from militant disarray to urban policy] (L'Harmattan, Paris) Bertho A, 1999 Contre l'Eè tat, la politique [Policymaking against the state] (La Dispute, Paris) Bourdieu P,1999,`̀ Site effects'', inTheWeight of theWorld: Social Suffering in Contemporary Society Ed. P Bourdieu, translated by P P Ferguson, S Emanuel, J Johnson, S T Waryn (Stanford University Press, Stanford, CA) pp 123 ^ 129; originally published in1993 as La mise© redu monde (Eè ditions du Seuil, Paris) Boyne G, Powell M, 1991,``Territorial justice: a review of theory and evidence'' Political Geography Quarterly 10 263 ^ 281 Byrne D, 1999 Social Exclusion (Open University Press, Buckingham) Chaline C, 1998 Les politiques de la ville [Urban policies] 2nd edition (Presses Universitaires de France, Paris) Justice and the spatial imagination 1803 Circulaire no. 91-57 relative a© la loi d'orientation pour la ville no. 91-662 du 13 juillet 1991 [Letter no. 91-57 relative to the urban development act no. 91-662 13 July 1991] Ministe© re de l'ëquipement, des transports et du logement, Direction de l'architecture et de l'urbanisme, Direction de la Construction (Paris: 31 juillet 1991) Cresswell T, 1996 In Place/Out of Place: Geography, Ideology, and Transgression (University of Minnesota Press, Minneapolis, MN) Davies B, 1968 Social Needs and Resources in Local Services (Michael Joseph, London) Dikec° M, 2001, `̀ Geography and social justice: three decades later'', manuscript, Department of Urban Planning, University of California, Los Angeles, CA Dikec° M, forthcoming, `̀ Pera peras poros: longings for spaces of hospitality'' Theory, Culture and Society Dimock W C, 1997 Residues of Justice: Literature, Law, Philosophy (University of California Press, Berkeley, CA) Faber J, 2000 Les indësirables: l'intëgration a© la franc° aise [The undesirables: integration in the French way] (Grasset, Paris) Flusty S, 1994 Building Paranoia: The Proliferation of Interdictory Space and The Erosion of Spatial Justice (LA Forum for Architecture and Urban Design,West Hollywood, CA) Garber J A, 2000, `̀ The city as a heroic public sphere'', in Democracy, Citizenship and the Global City Ed. E Isin (Routledge, London) pp 257 ^ 274 Gleeson B, 1998, `̀ Justice and the disabling city'', in Cities of Difference Eds R Fincher, J M Jacobs (Guilford Press, New York) pp 89 ^ 119 Hall T, Hubbard P, 1996, `̀ The entrepreneurial city: new urban politics, new urban geographies?'' Progress in Human Geography 20 153 ^ 174 Harvey D, 1973 Social Justice and the City (Johns Hopkins University Press, Baltimore, MD) Harvey D, 1989 The Urban Experience (Johns Hopkins University Press, Baltimore, MD) Harvey D, 1992, `̀ Social justice, postmodernism and the city'' International Journal of Urban and Regional Research 16 588 ^ 601 Harvey D, 1996 Justice, Nature and the Geography of Difference (Blackwell, Malden, MA) Holston J, Appadurai A, 1996, `̀ Cities and citizenship'' Public Culture 8(2) 187 ^ 204 Isin E, 1999, `̀ Introduction: cities and citizenship in a global age'' Citizenship Studies 3(2) 165 ^ 172 Journal Officiel de la Rëpublique Franc° aise [Official Journal of the French Republic] 19 Juillet 1991 Kant I, 1970, `̀ Perpetual peace: a philosophical sketch'', in Kant's Political Writings Ed. H Reiss, translated by H B Nisbet (Cambridge University Press, Cambridge) pp 93 ^ 130; first published 1795 Katznelson I, 1997, `̀ Social justice, liberalism and the city: considerations on David Harvey, John Rawls and Karl Polanyi'', in The Urbanization of Injustice Eds A Merrifield, E Swyngedouw (New York University Press, New York) pp 45 ^ 64 Keith M, 1997, `̀ Street sensibility? Negotiating the political by articulating the spatial'', in The Urbanization of Injustice Eds A Merrifield, E Swyngedouw (New York University Press, New York) pp 137 ^ 160 Lefebvre H, 1970a Le manifeste diffërentialiste [Differentialist manifesto] (Gallimard, Paris) Lefebvre H, 1970b La rëvolution urbaine [The urban revolution] (Gallimard, Paris) Lefebvre H, 1976a The Survival of Capitalism: Reproduction of the Relations of Production translated by F Bryant (Allison and Busby, London); first published 1973 Lefebvre H, 1976b, `̀ Reflections on the politics of space''Antipode 8 30 ^ 37 Lefebvre H, 1981 Critique de la vie quotidienne III: De la modernitë au modernisme (Pour une mëtaphilosophie du quotidien) [Critique of everyday life III. From modernity to modernism (for a metaphilosophy of the everyday)] (L'Arche ëditeur, Paris) Lefebvre H, 1986 Le Retour de la Dialectique [The return of dialectics] (Messidor/Eè ditions sociales, Paris) Lefebvre H, 1991 The Production of Space (Blackwell, Oxford); first published 1974 Lefebvre H, 1993, `̀ The right to the city'', in Architecture Culture 1943 ^ 1968: A Documentary Anthology Ed. J Ockman (Rizzoli, New York) pp 428 ^ 436; first published 1968 Lefebvre H, 1996 Writings on Cities translated by E Kofman, E Lebas (Blackwell, Cambridge, MA) Lëgë B, 1995, `̀ Rëhabilitation et dësenclavement symbolique: la justice spatiale est-elle possible?'' [Rehabilitation or symbolic disenclavement: is social justice possible?] Les Annales de la recherche urbaine 68 ^ 69 34 ^ 42 Lelëvrier C, 1999, `̀ Renaissance or the end of urban policy?'' Les Cahiers de l'IAURIF 123 35 ^ 41 1804 M Dikec° Lenoir R,1974 Les exclus: un franc° ais sur dix [The excluded: one French out of ten] (Le Seuil, Paris) Leroux L, 2001, `̀A Marseille, les anciens de l'immigration, oubliës de la rënovation urbaine'' [In Marseille former immigrants left out of urban renovation] Le Monde 22 juin, page 11 Lojkine J, 1977 Le marxisme, l'ëtat et la question urbaine [Marxism, state and the urban question] (Presses Universitaires de France, Paris) Madanipour A,1998,`̀ Social exclusion and space'', in Social Exclusion in European Cities: Processes, Experiences, and Responses Eds A Madanipour, G Cars, J Allen (Jessica Kingsley, London) pp 75 ^ 89 Merrifield A, 1997, `̀ Social justice and communities of difference: a snapshot from Liverpool'', in The Urbanization of Injustice Eds A Merrifield, E Swyngedouw (New York University Press, New York) p 200 ^ 222 Merrifield A, Swyngedouw E, 1997, `̀ Social justice and the urban experience: an introduction'', in The Urbanization of Injustice Eds A Merrifield, E Swyngedouw (New York University Press, New York) pp 1 ^ 17 Miller D, 1976 Social Justice (Clarendon Press, Oxford) Mouffe C, 1992, `̀ Democratic citizenship and the political community'', in Dimensions of Radical Democracy: Pluralism, Citizenship, Community Ed. C Mouffe (Verso, London) pp 225 ^ 239 Perec G,1997 Speciesof Spaces and Other Pieces edited and translated by J Sturrock (Penguin Books, Harmondsworth, Middx); first published 1974 Pirie G H, 1983, `̀ On spatial justice'' Environment and Planning A 15 465 ^ 473 Rancie© re J, 1995, `̀ Politics, identification, and subjectivization'', in The Identity in Question Ed. J Rajchman (Routledge, London) pp 63 ^ 70 Rawls J, 1971 A Theory of Justice (Harvard University Press, Cambridge, MA) Rawls J, 1993 Political Liberalism (Columbia University Press, New York) Recherches 20,`̀ Loi d'orientation pour laville: sëminaire chercheurs dëcideurs'' [Urban development act: seminar with researchers and decisionmakers] Ministe© re de l'ëquipement, des transports et du logement (Paris, 1991) Sandel M J, 1982 Liberalism and the Limits of Justice (Cambridge University Press, Cambridge) Simon P, 1995, `̀ La politique de la ville contre la sëgrëgation: ou l'idëal d'une ville sans divisions'' [Urban policy against segregation: or the ideal of a city without divisions] Les Annales de la recherche urbaine 68 ^ 69 27 ^ 33 Skinner Q,1992,``On justice, the common good and the priority of liberty'', in Dimensions of Radical Democracy: Pluralism, Citizenship, Community Ed. C Mouffe (Verso, London) pp 211 ^ 224 Smith D M, 1994 Geography and Social Justice (Blackwell, Oxford) Smith D M, 1997, `̀ Back to the good life: towards an enlarged conception of social justice'' Environment and Planning D: Society and Space 15 19 ^ 35 Smith D M, 2000, `̀ Social justice revisited'' Environment and Planning A 32 1149 ^ 1162 Smith N, 1997, `̀ Social justice and the new American urbanism: the revanchist city'', in The Urbanization of Injustice Eds A Merrifield, E Swyngedouw (New York University Press, New York) pp 117 ^ 136 Soja E, 1989 Postmodern Geographies: The Reassertion of Space in Critical Social Theory (Verso, London) Soja E, 2000 Postmetropolis: Critical Studies of Cities and Regions (Blackwell, Oxford) Touraine A, 1991, `̀ Face a© l'exclusion'' Esprit 169 7 ^ 13 Voltaire, 1961 Mëlanges (Gallimard, Paris); first published 1761 Wihtol de Wenden C, 1992, `̀ Question de citoyennetë'' [The question of citizenship] Espaces et sociëtës 68 37 ^ 45 Young I M, 1990 Justice and the Politics of Difference (Princeton University Press, Princeton, NJ) Young I M, 1999, `̀ Residential segregation and differentiated citizenship'' Citizenship Studies 3(2) 237 ^ 252 Justice and the spatial imagination 1805 ß 2001 a Pion publication printed in Great Britain Abstract Introduction Geographical encounters Urban sensibilities Spatial justice: a conceptualization Right to the city: beyond Conclusions: politicizing the urban spatial References 
work_jdxlgx4k7beyjca7ndi6nc6r6u	----	[PDF] Interactional justice, leader–member exchange, and employee performance: Examining the moderating role of justice differentiation | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1002/JOB.2133 Corpus ID: 49535697Interactional justice, leader–member exchange, and employee performance: Examining the moderating role of justice differentiation @article{He2017InteractionalJL, title={Interactional justice, leader–member exchange, and employee performance: Examining the moderating role of justice differentiation}, author={W. He and R. Fehr and Kai Chi Yam and Lirong R. Long and P. Hao}, journal={Journal of Organizational Behavior}, year={2017}, volume={38}, pages={537-557} } W. He, R. Fehr, +2 authors P. Hao Published 2017 Psychology Journal of Organizational Behavior Summary Past research suggests that interactional justice plays a pivotal role in facilitating high-quality leader–member exchange (LMX), with downstream implications for employee performance. However, the broader context in which these effects unfold has received scarce attention. Drawing from deontic justice and social exchange theories, we suggest that interactional justice differentiation is an important contextual moderator of the link between interactional justice and LMX. Specifically… Expand View via Publisher static1.squarespace.com Save to Library Create Alert Cite Launch Research Feed Share This Paper 28 CitationsHighly Influential Citations 1 Background Citations 3 View All Figures and Tables from this paper figure 1 figure 2 table 2 table 3 figure 3 figure 4 View All 6 Figures & Tables 28 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency The influence of fair supervision on employees’ emotional exhaustion and turnover intentions Ivy A. Kyei-Poku Economics 2019 Save Alert Research Feed Unethical leader behavior and employee performance: a deontic justice perspective C. Gan, W. Guo, Yandong Chai, Duanxu Wang Economics 2019 2 Save Alert Research Feed Testing a Comprehensive Model of Organizational Justice Perceptions and Personal States with Personal and Organizational Outcomes Aharon Tziner, Erich C Fein, Cristinel Vasiliu Psychology 2020 PDF View 1 excerpt, cites background Save Alert Research Feed Why and When Empowering Leadership Has Different Effects on Employee Work Performance: The Pivotal Roles of Passion for Work and Role Breadth Self-Efficacy P. Hao, W. He, Lirong R. Long Psychology 2018 26 Save Alert Research Feed Beyond individual justice facets: How (Mis)alignment between justice climates affects customer satisfaction through frontline customer extra-role service behavior Michel Tremblay, Denis Chênevert, Christian Vandenberghe, Xavier Parent-Rocheleau Psychology 2018 4 Save Alert Research Feed Guanxi HRM practices and employee creative performance C. Yang, Fu Yang Psychology 2020 Save Alert Research Feed What make banks’ front-line staff more customer oriented? The role of interactional justice Thuy T. Dang, Anh D. Pham Business 2020 4 Save Alert Research Feed Transformational leadership, organizational justice and organizational outcomes: A study from the higher education sector in Syria Iyad Alamir, Rami M. Ayoubi, Hiba Massoud, Louna Al Hallak Psychology 2019 6 PDF Save Alert Research Feed Relationship between leader-member exchange and construction worker safety behavior: the mediating role of communication competence. Changquan He, Guangshe Jia, Brenda McCabe, J. Sun Psychology, Medicine International journal of occupational safety and ergonomics : JOSE 2019 5 Save Alert Research Feed An integrative ethical approach to leader favoritism Inju Yang, Sven Horak, Nada K. Kakabadse Psychology 2020 Save Alert Research Feed ... 1 2 3 ... References SHOWING 1-10 OF 93 REFERENCES SORT BYRelevance Most Influenced Papers Recency The impact of justice climate and justice orientation on work outcomes: a cross-level multifoci framework. H. Liao, D. Rupp Psychology, Medicine The Journal of applied psychology 2005 453 Highly Influential View 1 excerpt, references background Save Alert Research Feed The mediating roles of organizational justice on the relationships between HR practices and workplace outcomes: an investigation in China H. Zhang, Naresh C. Agarwal Psychology 2009 100 View 1 excerpt, references methods Save Alert Research Feed Using Social Exchange Theory to Distinguish Procedural from Interactional Justice R. Cropanzano, Cynthia A. Prehar, P. Chen Sociology 2002 752 View 3 excerpts, references background and results Save Alert Research Feed The precursors and products of justice climates: Group leader antecedents and employee attitudinal consequences. David M. Mayer, L. Nishii, B. Schneider, H. Goldstein Psychology 2007 192 PDF Save Alert Research Feed Collectivism as a moderator of responses to organizational justice: implications for leader‐member exchange and ingratiation B. Erdogan, R. Liden Psychology 2006 181 View 3 excerpts, references background and results Save Alert Research Feed What Is Wrong With Treating Followers Differently? The Basis of Leader–Member Exchange Differentiation Matters X. Chen, Wei He, Liang-Chieh Weng Psychology 2018 32 Save Alert Research Feed Employee Justice Across Cultures R. Shao, D. Rupp, D. Skarlicki, K. Jones Psychology 2013 150 Save Alert Research Feed Leader-Member Exchange and Employee Creativity: Test of a Multilevel Moderated Mediation Model W. Pan, Li-Yun Sun, I. H. Chow Psychology 2012 55 Save Alert Research Feed Justice at the millennium: a meta-analytic review of 25 years of organizational justice research. J. Colquitt, D. E. Conlon, M. J. Wesson, C. O. Porter, K. Ng Psychology, Medicine The Journal of applied psychology 2001 4,523 PDF View 1 excerpt, references background Save Alert Research Feed The Role of Justice in Organizations: A Meta-Analysis Yochi Cohen-Charash, P. Spector Psychology 2001 2,961 Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Figures and Tables 28 Citations 93 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_jgwvcgrnw5cdbdgqamslayk5mu	----	Zenodo_D51-KC- final-201130 The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 Co-designing Citizen Social Science for Collective Action #5.1 Report on Knowledge Coalition Building Environmental Justice This document is shared under Creative Commons Attribution 4.0 International License (CC BY 4.0). Cite as: Arza, Valeria, Actis, Guillermina, Marchegiani, Pia, Velarde, Malena, Cane, Santiago, Buchsbaum, Malena & Swistun, Débora (2020). CoActD5.1: Report on Knowledge Coalition Building. Environmental Justice. Zenodo. http://doi.org/10.5281/zenodo.4498635 DISCLAIMER: The present Project Deliverable has been submitted to the European Commission for review. The information and views set out in this report are those of the author(s) and do not necessarily reflect the official opinion of the European Union. Neither the European Union institutions and bodies nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 2 Date – 30 November 2020 Dissemination level - Public Responsible Partner - UNSAM Author(s) / credits Arza, Valeria (CENIT/UNSAM): writing original draft, conceptualisation, methodology, investigation, formal analysis, supervision Actis, Guillermina (CENIT/UNSAM): writing original draft, conceptualisation, formal analysis, investigation. Marchegiani, Pia (FARN): writing review and editing, formal analysis, investigation and supervision Velarde, Malena (CENIT/UNSAM): writing review and editing, investigation, methodology, software, data curation, formal analysis, visualisation Cane, Santiago (FARN): formal analysis and investigation Buchsbaum, Malena (CENIT/UNSAM): writing review and editing, data curation, formal analysis Swistun, Débora (FARN): Investigation Reviewers - Isabelle Bonhoure, Teresa Wintersteller, Mariam Malik, Veronika Wöhrer, Katja Mayer Document History Version Date Contributor Comments 1.0 9th November 2020 Arza, V et al (lists of authors above) First draft KC report to be commented by Consortium coordinators. 2.0 17th November 2020 Arza, V et al Second draft after incorporating comments by UB. To be read by Consortium members. 3.0 26th November Arza, V et al Final draft of the report. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 3 Table of Contents 1. Executive Summary 6 2. Introduction 7 2.1 CoAct General Concept 7 2.2 Definition of the Knowledge Coalition 8 2.3 R&I Action #3 Scope 9 3. Knowledge Coalition formation 12 3.1 Local context mapping 12 3.1.1 FARN Experience in Promoting Sanitation and Facilitating Citizen Participation in the Basin 12 3.1.2 CENIT/UNSAM Experience with Open Science and Citizen Participation in the Production of Knowledge Towards Transformation 16 3.1.4 Other Citizen Science Initiatives in the Riachuelo Basin 19 3.2 Knowledge Coalition constitution process 19 4. Knowledge Coalition in action 21 4.1 Knowledge Coalition Activities 22 4.1.1 Initiating First Contact: the Interviews 24 4.1.2 Micro-workshops, a tool to Co-produce Knowledge in Lockdown Time 25 4.1.3 Narrowing the Scope: Focussing on Strategic Topics 26 Participants 31 Methods - Dynamics 32 4.1.5 The Knowledge Coalition as a Network Approach 34 4.2 Knowledge Coalition Outcomes 37 4.2.1 Introduction 37 4.2.2 Socio-environmental Problems and Practices to address them 38 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 4 4.2.3 The Meanings and Processes of Citizen Participation in Policy Making (for Community and Policy Actors) and on Knowledge Production (for Scientific Actors) 46 4.2.4 The First Steps Towards Platform Co-design 48 5. Concluding Remarks 49 6. References 53 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 5 List of Figures Figure 1: Citizen Social Science in Action Figure 2: Network expansion in 18 months within and outside the Matanza-Riachuelo basin. Figure 3: Wordcloud of nouns for interviewees’ responses to the question on socio-environmental problems in the basin. Figure 4: Basin map and socio-environmental problems classified in six categories List of Tables Table 1: Technologies and main features of previous two versions of FARN’s QPR Table 2: Participants in different activities organised as part of CoAct R&I # 3 from April to October 2020 and digital tools used. Table 3: Selected Environmental Justice issues in Matanza-Riachuelo basin in connection to FARN´s agenda. List of Abbreviations ACUMAR: Matanza-Riachuelo Basin Authority CSS: Citizen Social Science CSOs: Civil Society Organisations GDPR: General Data Protection Regulation IC: Informed Consent PISA: Plan Integral de Saneamiento Ambiental (Sanitation Plan) QPR: Qué pasa Riachuelo? (What’s up Riachuelo) #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 6 1. Executive Summary CoAct (Co-designing Citizen Social Science for Collective Action) aims at co-designing concepts, methods and tools for Citizen Social Science around wicked global social issues. Four different research and innovation (R&I) actions organised the empirical work of CoAct and this report presents the process of building the knowledge coalition network for one of those R&I actions developed in the frame of CoAct WP5. This R&I action aims at co-designing citizen social science tools to facilitate actions contributing towards Environmental Justice in the Matanza-Riachuelo river basin. The basin covers 64 km-long and 6 million people live there, most of them in vulnerable socio-environmental situations. In particular, we aim at co-designing a digital platform to produce and share data that can contribute to mapping different socio-environmental problems as understood by a diversity of stakeholders and promote concrete actions for addressing those problems. The Knowledge Coalition works as a network of actors that intervene throughout the project’s R&I cycle, by discussing, defining, and co-designing different activities. We define it as the network of stakeholders who are interested in and informed about the R&I project goal and vision and who play an active role, either participating in or co-designing different actions. We expect the network to be continuously evolving and different types of commitment by a variety of actors is foreseen over time, depending on expertise, interests, synergies and project activities. FARN and CENIT/UNSAM identified three different types of actors that would be part of the Knowledge Coalition: researchers working in academic organisations doing research about different socio- environmental problems of the basin; public policy actors from the different jurisdictions involved in the basin (Municipal, Provincial and National) and community actors, which includes people living or working who belong to territorial organisations and also civil society organisations (CSOs) at large. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 7 We had to modify our original plan for the Knowledge Coalition creation due to the Covid-19 pandemic and associated lockdown restrictions. We organised three types of virtual engagement activities with candidates to be part of the Knowledge Coalition: interviews, micro-workshops and a platform co-design workshop. In total we reached around 30 actors (research groups, public policy organisations and territorial and civil society organisations) inside and outside the basin, who participated in some of those instances and expressed their interest in being involved in the R&I action’s future activities. We managed to identify main socio-environmental problems in different locations in the basin as understood by different stakeholders who participated in our action. We also started to delineate the main purpose of the citizen driven platform, which will initially systematise and co-produce information on three main socio-environmental themes: conservation of green areas, water quality and relocation of people living in areas with environmental risks. 2. Introduction 2.1 CoAct General Concept CoAct (Co-designing Citizen Social Science for Collective Action) is proposing a new understanding of Citizen Social Science as a participatory research co-designed and directly driven by citizens and citizen groups sharing a social concern (See Figure 1). CoAct proposes to face four “wicked” social global issues by engaging citizens in a vulnerable situation. The approach represents a new understanding of the underexplored field of Citizen Social Science (CSS), understood here as participatory research co-designed with citizen groups sharing a social concern. The joint effort will result in the implementation of new or improved science-related policies and the advancement of the CSS approach with regards to its applicability in concrete fields or research. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 8 Figure 1: Citizen Social Science in Action, with citizen groups, a specific concern, and with the support of the Knowledge Coalition In all CoAct R&I Actions (Mental Health Care, Youth Employment and Environmental Justice), citizens in a vulnerable situation are placed at the centre of the research and their role and dedication conceptually recognize them as Co-Researchers. In parallel, the Knowledge Coalition is a network of stakeholders who are informed about the R&I Actions’ goals, and play an active role, either participating in or co-designing different actions, to harness Co-Researchers' efforts and implement policies and measures based on scientific evidence. 2.2 Definition of the Knowledge Coalition Knowledge Coalitions are formed by representatives of Public Administrations, Civil Society Organisations (CSOs), educative organisations and Co-Researchers –to name a few. All R&I Actions involve people from different areas of the political, academic/scientific and social realm, according to their field of research. They strive to assure that the composition of the Knowledge Coalition reflects the diversity of actors within their field and is sensitive to gender balance and other socio-structural categories that might become relevant such as ethnicity or age. The involvement and collaboration of the Knowledge Coalition members varies according to the specific R&I Action and different actors may participate in different activities according to their expertise, interest and #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 9 expectations regarding synergies with their own activities associated to the social concern. The participation of the individual parties of the Knowledge Coalition can take place in various forms and in different moments of the R&I cycle: creating a structural framework for research, participating in the actual research process, informing on corresponding issues, implementing and discussing possible solutions or getting involved in the dissemination of the project and the transformation of research results into actions according to its acting potential. Regardless of the role, each R&I Action facilitates spaces for dialogue and action with different actors promoting the creation of a dynamic network and building from synergies among different initiatives adding therefore to the collective effort towards transformation. In order to coordinate the network and opening up spaces for deliberation, the R&I Actions use different methods and approaches, from joint discussions, workshops, expert talks and digital tools to strategy meetings, which aim at a diversity of on- and offline participation possibilities. 2.3 R&I Action #3 Scope The R&I Action on Environmental Justice explores socio-environmental problems in the Matanza- Riachuelo river basin with the aim of promoting transformative action. The Matanza-Riachuelo is a heavily contaminated 64 km long river that runs along the southern limit of the City of Buenos Aires, where 6 million people live. It is estimated that 1.8 million people in the basin live in highly vulnerable conditions1, in terms of housing and access to basic infrastructure. There are several socio-environmental problems related to: 1 See social vulnerability index build by ACUMAR (2018) p. 31 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 10 i) contamination from production activities (mainly industrial but also agriculture); sewage effluents since 50% of population in the basin is not connected to sewage system (ACUMAR, 2020, p. 44) and open garbage dumps ii) poor infrastructure in terms of housing (around 800 people live in informal settlements and slums (ACUMAR, 2018, p.31), some of them built on garbage dumps), lack of access to safe water for 21 % of the basin population (ACUMAR, 2020, p.36), and poor access to health system, which exacerbate the social impact of contamination. The Knowledge Coalition works as a network of actors that intervene throughout the project’s R&I cycle, by discussing, defining, and co-designing the different steps towards constructing a digital platform to produce and share data that can contribute to the development and advancement of concrete actions or solutions for the basin’s problems. We will learn from the experience in designing and using a previous platform developed by FARN: QPR which stands for Qué pasa Riachuelo? (What’s up Riachuelo?). This platform will be re-built through co-design mechanisms incorporating different perspectives and viewpoints from the basin communities, scientists, and public authorities. The Citizen Science platform will produce knowledge and understandings about the nature of different socio-environmental problems starting from three of them: water quality, threats to green spaces such as wetlands, and the resettlement of families previously located in the basin towline path. By doing so, it aims to provide useful information to design potential solutions. FARN and CENIT/UNSAM will guide and implement a set of activities to co-create the Citizen Science platform and promote its dissemination: 1) open-ended interviews and workshops to identify socio-environmental problems in the Matanza-Riachuelo basin as they are understood by different actors as well as practices and activities aiming at addressing them; 2) co-design workshops, where #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 11 participants discuss the main functionalities and obstacles for the digital platform development and sustainability; 3) dissemination activities to generate new data sets on socio-environmental problems perception and to define how it can be contrasted with existing information sources and 4) open hackathons for data analysis, interpretation and visualisation of the results. The R&I Action on Environmental Justice’s main Knowledge Coalition actors, the Matanza-Riachuelo basin communities, scientists, and public bodies representatives, are identified through web-based research, bibliometric sources and FARN and CENIT/UNSAM previous connections. We have carried out three activities to reach these actors: interviews, micro-workshops and platform co-design workshops. During interviews, they narrate their experiences in the basin and their understanding of main problems and how citizen participation may help in the production of knowledge for transformative actions in the basin. Community actors also participate in micro- workshops designed to add bottom-up perspectives to social-environmental issues and identify key practices addressing them. Finally, socio-environmental problems identified through interviews and micro-workshops are discussed by the Matanza-Riachuelo communities’ actors, public bodies authorities, members from NGOs, and scientists in a platform co-design workshop. This context provides the opportunity to review preliminary outcomes on the identified problems from an enhanced perspective. The main goal of the co-design workshop is to have instances to reflect on the purpose, type of data and functionalities of the digital platform and to anticipate obstacles that may come up both when designing and using it. Workshops’ participants and interviewees who explicitly communicate their interest in being connected to projects activities and outcomes are all considered members of the Knowledge Coalition, which is then defined as a stakeholder network of actors interested in and informed about the R&I project goal and vision. This network includes activists, social and territorial organisations, NGO’s representatives, neighbours, scientists and policy makers mobilized to promote Environmental #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 12 Justice. The Knowledge Coalition contributes to frame both the R&I Action’s items goals and co- design different activities related to the Citizen Science platform. All actors in this network have experience in putting forward different activities aiming at providing knowledge and actions towards Environmental Justice. We plan to promote synergies with these actors’ practices. We foresee that, responding to their own interests in the different subject matter, actors in the Knowledge Coalition network will participate in and co-organise activities aiming at the design, dissemination, use and/or impact of the Citizen Science platform throughout the project. 3. Knowledge Coalition formation 3.1 Local context mapping The idea of creating a Citizen Science platform to address socio-environmental problems in Matanza-Riachuelo basin was first sketched in 2017. This project was inspired by FARN’s development of the citizen-driven data platform QPR and CENIT/UNSAM research experience on open science and citizen participation in the production of knowledge aiming at transformation. 3.1.1 FARN Experience in Promoting Sanitation and Facilitating Citizen Participation in the Basin In 2004 a group of local residents and workers from Villa Inflamable presented a lawsuit before the Supreme Court of Justice of the Nation (hereafter the Court). The lawsuit focused on environmental pollution damage in the Matanza-Riachuelo basin and a series of demands and claims against the National State, the Province of Buenos Aires, the Government of the City of Buenos Aires and forty- four companies. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 13 In 2006 the Matanza-Riachuelo Basin Authority (ACUMAR) was created. ACUMAR is an autonomous public organisation which combines the work of the three levels of governments that have authority over the territory (National, Buenos Aires Province, and Buenos Aires City). It is the highest authority in the area on environmental issues. In 2008, the Court, in a landmark ruling, instructed ACUMAR: i) to repair air, water, and ground damage caused by discharges to the river; ii) to improve the quality of life of the citizens of the entire basin and iii) to prevent future damage. Also, in 2008 a group of Civil Society Organisations (CSOs), including FARN2 were admitted by the Court as third parties interested in the legal cause. Together with the Ombudsman, and other three CSOs, the Collegiate Body was created by the Supreme Court's ruling to monitor the environmental clean-up and the progress of the Sanitation Plan (PISA Plan Integral de Saneamiento Ambiental in Spanish). Specifically, among the given roles was to promote citizen participation in the monitoring of the environmental clean-up and associated activities of the basin. It was subsequently decided that this Collegiate Body assumes the actual representation of the public in that process of sanitation. The Court mandate was to foster citizen participation in the monitoring of ACUMAR´s work, especially in its compliance with the Sanitation Plan. In 2010 FARN and other CSOs initiated the project QPR Qué pasa Riachuelo? and in 2011 they launched the geo-referenced platform that enabled open access to data related to the ACUMAR’s PISA. The final expected outcome was that communities could monitor these activities’ execution and influence public policies in their territory. In a second stage, QPR published citizen-generated data, which was a very innovative move. QPR became one of the first citizen-driven platforms in the country. The new section, “Social Monitoring'', 2 The other CSOs were Greenpeace Argentina Foundation; Social and Legal Research Centre (Centro de Estudios Legales y Sociales) and Neighbours Association of La Boca. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 14 established active mechanisms to control and watchdog the Sanitation Plan’s execution. This section included a new feature: a form that could be completed anonymously by citizens. This form gathered information that was then uploaded and published as a “story” (a neighbourhood alert taken by FARN to request further information on the matter to the competent authority) or as an “action” (an activity carried out by the community); whose responses were also published. “Social Monitoring'' section also included a “News” subsection that displayed a social survey on the presence of the issues associated with the Basin in the media. For more information on the case, please see Fressoli and Arza (2016) and Mira (2016). In its first stage of development, FARN and other CSOs established an agreement with ACUMAR to fetch data about PISA execution and to publish it on an interactive map. Neighbours from different parts of the basin and the CSOs involved were able to visualize this information and to contrast it with the cleaning up activities carried out in the basin’s territory. This was a key step since information was neither systematised nor easily accessible at that point in time. QPR 1 (2011) QPR 2 (2012-2014) Data Fetch data from ACUMAR. Display data on an interactive map. Fetch data from ACUMAR, TECHO. Publish data produced by social organisations. Display data on an interactive map. Citizen participation features Upload citizen-generated alerts using an online form administered during face-to-face workshops and meetings. Upload citizen-generated alerts using an online and public form. Platform provides environmental traffic light based on that data #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 15 Technologies USHAHIDI, JavaScript, CSS, HTML, ApacheConf Data cleansing Different instances of information cleansing: Collegiate body, FARN. Platform strategy development environment (Garage Lab). Citizen alerts and reports validated collectively during meetings. FARN staff checked citizen-generated data before publication. Data openness Datasets open to the public in csv format available on http://datospublicos.org/ Datasets open to the public in csv format. Dissemination activities Workshops at Matanza-Riachuelo basin schools. Workshops all along the Matanza- Riachuelo basin. Contact local newspapers. Table 1: Technologies and main features of previous two versions of FARN’s QPR Although FARN organised workshops and other activities within the community to foster platform use, spontaneous participation was rather low. First, neighbours from the basin did not perceive the platform as a tool to solve their problems and eventually lost interest in reporting any situation as there were no concrete responses carried-out by ACUMAR. Second, neighbours feared reprisals by powerful groups with conflicting interests (e.g., industries verting waste). Third, the wide digital and technology gap in the affected communities limited the platform’s use to the FARN workshops. The QPR’s dependency on workshops to feed its database weakened its community impact. As soon as the project ran out of funds to sustain the workshops, the generation of systematic information could not be further guaranteed. Funding was also needed for the cross-reference validation done by FARN’s own staff on the citizen information about breaches to existing regulation and on the follow-up with national authorities on the different issues raised on the platform. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 16 Overall, QPR's main success was to push ACUMAR to grant access to information related to the Sanitation Plan, to systematize existing data and to make it visible. This was a central claim from communities seeking solutions to long-lasting socio environmental problems. In fact, ACUMAR ended-up developing its own geo-referenced tool showing information on socio-environmental basin’s problems, among other issues. However, the goal to foster citizen-generated data remained unfulfilled. The mentioned experiences made it clear that a new version of QPR had to be re-conceptualized to become a tool that could be uptaken by citizens. This goal not only aims at increasing the amount of citizen-generated data but also to build a sustainable platform that might become more independent from resources raised by leading organisations. 3.1.2 CENIT/UNSAM Experience with Open Science and Citizen Participation in the Production of Knowledge Towards Transformation In 2015 CENIT/UNSAM led a research project to understand how participatory science could contribute to overcoming health, inclusion, and environmental challenges in Argentina. This project was part of the Open and Collaborative Science in Development Network and CENIT/UNSAM research team analysed the Sanitary Camps (Campamentos Sanitarios) in different rural and peri urban settings. These camps were organised by medical faculty and students responding to communities’ demand for epidemiological data in locations exposed to pesticide sprayings. The Sanitary Camps were held from 2010 until 2019 as part of the medical curricula at the National University of Rosario School of Medicine and produced epidemiological data representing more than 100,000 people (Verzeñassi & Vallini, 2019). The camps involved communities and local governments in the research process and the dissemination of the collected data. Their action had a tremendous political and social impact, especially for Sprayed Peoples (Pueblos Fumigados) and #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 17 other socio-environmental movements that tried to document the detrimental human health impacts of the agro-industrial system based on extensive use of pesticides, a research area barely studied. Eventually, the Sanitary Camps were dismantled by the School of Medicine’s authorities. A great opportunity for transformation was lost and the question on how participatory science aiming at transformation in a political conflictive situation could overcome social, cultural and political barriers remains open. These are typical obstacles in undone science (Hess, 2007) and studying them is particularly critical for open science scholars as we struggle with the question of how to incorporate political angle when dealing with methodological decisions, such as how to share data and information without risk of data being misused or the projects being boycotted/suppressed. When researchers from CENIT/UNSAM first learnt about QPR, they got very enthusiastic about the role the tool had in pushing public policy forward. They also saw the potential to go beyond its social monitoring role and to use it to create relevant knowledge for solving pressing socio-environmental problems, influencing public policy and promoting transformative actions. As the Sanitary Camps experience showed, when the community gets involved in participatory research, they do so mobilised by the urge to change their reality. The community could tell what types of practices could work better than others. Social scientists and CSOs could also contribute methodologically and by promoting strategic alliances to push data and ideas to convert into public policy and actions. CENIT/UNSAM has been very active in advocating open science policies in Argentina. The research centre has actively collaborated with other research organisations, CSOs and public policy, including the Science and Technology Policy authority to advance discussions on both the promotion of open and citizen science and how to articulate it into public policy schemes. Activities included seminars, policy workshops, technical assistance, festivals, community workshops and other dissemination activities. All these activities allowed CENIT/UNSAM to better understand the potential #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 18 challenges in developing citizen science projects, addressing also the necessary alliances for conducting this type of research. 3.1.3 CoAct Riachuelo In 2017 both teams started to collaborate and jointly developed the vision that citizen participation facilitated by digital tools could promote transformative actions towards Environmental Justice in the basin. They agreed to learn from QPR experience and re-launch a new platform to share and create new knowledge on citizen’s understanding of socio-environmental problems and their practical experiences in dealing with them. Based on their previous experience and connections, FARN and CENIT/UNSAM defined that there were three types of actors that had to be involved to put forward their project on Citizen Science for Environmental Justice. First, CSOs that had been participating in the basin's judicial conflict and the public policy catalysed by it and territorial organisations or individuals from the community with personal experience in searching for solutions to socio- environmental problems to be prioritized (see below). FARN is the primary contact point for their previous experience working with these local groups or organisations. We aim at good gender and geographical balance. Second, academic organisations and researchers working on those socio-environmental issues or with experience in advancing Citizen Science projects. CENIT/UNSAM is the main contact point, and selection considers disciplinary and gender diversity, with a particular focus on Universities located in the basin and research groups with previous experience in participatory science. Third, policy makers from different jurisdictional levels (municipalities, provincial and national) with presence in different geographical areas of the basin, with special focus and responsibilities on environmental or sanitation policies. FARN and CENIT/UNSAM would work side by side to bring along these stakeholders, building from their previous networks and expertise. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 19 3.1.4 Other Citizen Science Initiatives in the Riachuelo Basin We must also mention some particular experiences of Citizen Science in the Matanza-Riachuelo basin, associated with socio-environmental problems, which are close cousins of our R&I action and whose main representatives are also part of our Knowledge Coalition. On the one hand, AppEAR is a project with both scientific and educational goals, that aims at mapping aquatic habitats of the continental water bodies in Argentina. It also includes educational content and games in a mobile application and web-based platform (Cochero, 2018). The basin’s territory is included in the more 400 sampling sites of the project. Anticipando la Crecida was launched in 2014 as an extension project from the University of Buenos Aires. Since 2017 it has an agreement with Municipality of La Matanza, one of the jurisdictions that is more affected by the risk parameters identified by ACUMAR (ACUMAR, 2018). Biodiversity in the Matanza-Riachuelo basin (Biodiversidad de La Cuenca Matanza-Riachuelo · INaturalist, n.d.) is a Citizen Science initiative promoted by FARN in the context of the international program “Humedales sin Fronteras” (Wetlands without borders). The initiative uses the platform iNaturalist to register citizens observations of natural species in the area, promoting their conservation and the visibility of the threats that affect them. 3.2 Knowledge Coalition constitution process Once we identified the three different groups—policy makers, science actors and community actors—we started mapping potential candidates within each of them. FARN included community members who were known to be active in the basin, based on their own experience and also drawing from existing networks of territorial organisations and other CSOs working with them. CENIT/UNSAM searched for academic actors by analysing public bibliometric databases as well as the national portal on information in science and technology, which includes projects, researchers and scientific database. The list of candidates of policy actors include all relevant organisations working on environmental and sanitation policy in the basin. From these lists CENIT/UNSAM and FARN #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 20 collectively selected 45 people (50% female) as potential candidates to be invited to the project activities and who therefore could become part of the Knowledge Coalition. We sought to promote diversity in terms of variables mentioned above: gender, geography, political jurisdiction and discipline. In addition, especially in the case of community and policy actors, previous connection was also a variable that weighed heavily in our selection decision. Before formally contacting any of these actors, we worked on the ethical and data security aspects of these activities. This proved to be challenging since there is not much experience in ethical procedures for social sciences in Argentina. Neither UNSAM nor FARN had an Ethical Committee who could revise our procedures. We reviewed several informed consent (IC) procedures for other research areas, and we studied Argentinean regulation both on Personal Data and science and technology activities, which are both consistent with General Data Protection Regulation (GDPR). Our research activities are aligned with the ethics requirements contemplated in the 3º article of the Argentinian Law 25.467 of the National System of Science, Technology and Innovation, regarding the inalienable and universal principles for conducting research activities. Additionally, the project is compliant with the Law 25.326 of personal data protection requisites, as the investigation procedures contemplate informing the participants about how their personal data will be handled and processed. For this purpose, IC forms have been developed, in order to make participants aware of their rights and of the data's different uses. The procedure was approved by the UNSAM Vice Dean office, which is responsible for research projects in UNSAM. We developed different IC forms for the different planned activities; these were later modified, to adapt to the online activities as imposed by the Covid-19’s lockdown measures. Eventually we also simplified them using plain language techniques and video formats to address certain obstacles (see more on section 4.1 below). The IC forms and procedures for our R&I action also benefited widely from contributions by other researchers in the CoAct consortium. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 21 Finally, regarding Data Protection, we discussed our research data cycle for the development of the data management plan by Open Knowledge Foundation, part of CoAct consortium. When our research activities started and we began to generate and collect data we consulted with the UNSAM information technology team on cybersecurity issues in the context of home office imposed by the lockdown. They informed us to continue working with the institutional accounts of the cloud service of GDrive provided by the UNSAM. We have also requested remote access to the institution’s service to make monthly backups. 4. Knowledge Coalition in action Our plans to build the Knowledge Coalition had to be modified due to the Covid-19 pandemic and associated lockdown measures that started in mid-March 2020 and continue until the present time (early November 2020). People need special permits to move further than 500 meters away from home and gathering indoors is forbidden. Thus, our planned activities had to go fully virtual and it became challenging to reach both community actors —who had poor or no connectivity— and policy makers. Our research takes place in the areas more heavily affected by the Covid-19 spread. In addition, Argentina is going through an economic crisis, which preceded the lockdown but has worsened by the pandemic and associated lockdown measures. Therefore, both community and policy makers are affected by high degrees of sanitarian and economic urgencies. To build the Knowledge Coalition we planned to perform interviews from the above-mentioned list of 45 people, and to organise a “recognition workshop” to consolidate it, and jointly co-design the upcoming activities. The workshop was planned for the first semester of 2020 and was first postponed under the expectations that restrictions were going to end within a few months. As this did not happen, we eventually had to cancel the face-to-face format. We proceeded to interview #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 22 potential Knowledge Coalition actors and replaced the “recognition workshop” with other types of virtual workshops as discussed in more detail below. 4.1 Knowledge Coalition Activities For developing the network of actors to be part of the Knowledge Coalition we developed three different types of activities: interviews, micro-workshops with the community, and a platform co- design workshop. Table 2 briefly summarises the characteristics of participants and the digital tools used in each instance, which are described in more detail below. #5.1 Report on Knowledge Coalition Building | The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 23 Date Platforms used Science actors Public policy actors Community actors Total participants Territorial organisations from the Basin NGOs or other CSOs People Organisations / projects Micro- Workshop 1 participants 11/8/2020 Zoom People - - 6 2 8 2 (Organisations) (1) (1) Micro- Workshop 2 participants 25/8/2020 Zoom People - - 6 2 8 4 (Organisations) (3) (1) Interviewees April to September 2020 Zoom/Meet People 11 5 1 4 21 17 (Organisations. / research groups) (9) (4) (1) (3) Workshop participants 29/10/2020 Zoom/ Jamboard/ Mentimeter/ Padlet People 2 9 4 7 22 17 (Organisations. / research groups) (2) (6) (3) (6) Actors in the Knowledge Coalition network (counted only once, although they may have participated in different activities) 51 30 Table 2: Participants in different activities organised as part of CoAct R&I # 3 from April to October 2020 and digital tools used #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 24 4.1.1 Initiating First Contact: the Interviews We designed three types of questionnaires for one-hour interviews with the three different types of actors. The questionnaire includes some questions that were common to all types of actors and some actor-type’s specific ones. Among the former, we ask about the role/experience/activities of each actor in the basin; the problems/issues that each actor understands as the most relevant and the best/possible solutions that they identify. In addition, we asked all of them about the role of citizen participation in policy making (for community and policy actors) and on knowledge production (for academic actors). Finally, we also ask them to recommend some other groups or projects that may be interested in our project, so as to continue enlarging our network. Regarding the specific sections, for community actors, there were questions regarding the role of public policies; for academic actors, there were questions about the contribution of science in policy making; and, finally, for policy makers we asked about their priorities in the basin and how they matched those coming from community actors. We performed 18 interviews, some of them to individual actors and others, to a couple of them jointly. As can be seen in Table 2, there were 5 people from the community or CSOs, 11 from the scientific organisations and 5 from the policy sector; 57% of them were women. In all interviews IC forms were sent in advance, 30% provided oral consent during the interviews. Most interviews were recorded. IC for interviews included a series of statements for which people could choose their preference regarding the use of personal data. In general, people have agreed on us sharing direct quotes from interviews and attributing them with full names, but they normally requested us to show quotes beforehand. Particularly for community actors, IC procedures resulted to be cumbersome. Some of the expressed obstacles were associated with the provision of digital signatures and with the length and technical language. To address these, we opted for oral consents #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 25 in some cases and eventually simplifying the content and changing the procedure for community members (see below). 4.1.2 Micro-workshops, a tool to Co-produce Knowledge in Lockdown Time During July and August, we organised online micro-workshops to be held only with members of the basin’s local communities. The purpose of these workshops was to collect these stakeholders’ collective views on socio-environmental problems and their practices to overcome them. They were planned together with Iconoclasistas, the art-group that is also part of our Knowledge Coalition, who are the experts in the collective mapping methodologies that were part of the activities we had planned for our R&I action pre-Covid-19. So far micro-workshops have been organised with participants from two different locations of the basin. There were six participants in each workshop, who knew each other and lived nearby and belong to territorial organisations such as museums, schools, and neighbour associations. Workshops were coordinated through WhatsApp groups to agree on schedule, to share information, including IC materials and to answer specific questions. They were conducted through video calls in the Zoom platform. They were only audio-recorded. During the workshops, Iconoclasistas worked with maps of the neighbourhoods and asked participants to use a piece of paper, which was divided in three columns. In each of them they had to identify problems, positive practices to address them, and most prominent territorial organisations responsible for those practices. They were also asked to geo-reference those elements. Micro- workshops lasted over two hours and a half, during which people shared their annotations and thoughts while Iconoclasistas were taking notes on the maps. People interacted while presenting their views, complementing their experiences and getting involved in conversations about problems, practices, actors and locations. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 26 The micro-workshop method was an adequate approach for producing rich information and could work as a first step in the process of co-designing a Citizen Social Science project in a digital environment: it allowed to engage the communities in a discussion with researchers in a dynamic way, because it generated a sense of collective belonging. Through the dialogue it allowed the development of a collective vision of socio-environmental problems. Since the method contributes to the identification of actors and practices that help to solve problems, it facilitates the discussion about future possible pathways for action. This information was very rich for expanding the map of actors and also for identifying positive practices. Based on our experience with IC forms in interviews with community actors, for micro-workshops we decided to change our IC procedures. FARN produced a video which explains the main activities of our R&I action, including how the information was going to be used. The video and a statement on our commitment regarding the use of the data was sent by WhatsApp, and participants had the chance to ask questions using the same platform. In addition, we dedicated the first half an hour to read a plain language version of the aspects that required consent, showed the video again, answered any question and recorded an oral statement of agreement from all participants. 4.1.3 Narrowing the Scope: Focussing on Strategic Topics Based on the information gathered during interviews and considering FARN's experience and agenda in the basin, we decided to start working on three issues, all of which are of great relevance in relation to Environmental Justice and citizen participation. Those issues are water quality; protection of green areas and relocation of population affected by situations of environmental risk. The decision to focus on these issues was both strategic and practical. On the one hand, FARN has been leading both judicial activities and territorial engagement on these topics, and thus it makes #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 27 sense to focus the development of the platform on issues well connected to FARN’s current and future agenda. On the other hand, given lockdown restrictions, and because we were not able to organise collective mapping workshops as initially planned, we decided to start working in the platform’s co-design using virtual on-line workshops. To make them manageable, we needed to reduce the quantity of socio-environmental issues and thus, decided to start working on the topics that were identified —in interviews and micro workshops— as relevant and coincide with FARN’s own agenda. The platform could then incorporate other socio-environmental demands. Water quality is a key issue in the Riachuelo basin. The water receives sewage and industrial effluents, as well as solid urban waste, which represent the main causes of contamination in the basin. By jointly analysing the water quality and the evolution of associated regulation, it is possible to observe both the advances or setbacks in polluting factors and in public policies aimed at rebuilding the environment and preventing future damage. ACUMAR has the leading role in terms of ruling about water quality. The Collegiate Body is currently demanding the setup of new limits in terms of permitted discharge amounts and water quality goals that may allow the restoration of the river. In 2017 new regulation was issued which modifies parameters but expected improvements in terms of water quality based on those new values and assessment methods are marginally. The water quality goal that has been established, according to the Collegiate Body, is also insufficient to reduce contamination. By including this topic on the platform, the population could report isolated events, such as strange spills, increased rubbish in the water mirror. Also, they could share their understanding or personal experience on water quality or public policy, and how that matters for their lives. For several years, FARN brought evidence on these issues, partly collected using the preliminary versions of QPR as a #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 28 social monitoring tool3. The organisation systematically discussed in Court the importance of water quality, since it is a central issue for environmental recompositing. The wetlands of the basin are the most significant green spaces, the sites with the greatest biodiversity in the basin, where nature becomes present in an urban setting. This issue has been prioritized because it accounts for the relation between people and ecosystems, their involvement in taking care and valuing the last remaining natural areas within a highly dense metropolitan region. The state of wetlands is highly relevant for basin environmental health. They provide fundamental environmental services and constitute the main tool for environmental re-composition since the river has minimal slope, with almost stagnant waters. Nevertheless, wetlands in the basin are territories under dispute, with several different actors pushing for their access to land. Citizens groups have collectively requested the legal protection of these areas for a long time. Some protection was achieved in some areas of the basin. However, both real estate companies and different private projects (including a waste management company) have occupied these areas, putting them in danger. There are different kinds of conflicts in the area, involving not only different jurisdictions but also diverse economic, habitational and nature conservation interests. Many of these conflicts are taken to the judiciary powers. 3 The regulation of water quality and its control have been highlighted by the Collegiate Body in the last hearings convened by the Supreme Court in 2016 and 2018, as can be seen in the public access file (Autos “Mendoza, Beatriz y otros c/ Estado Nacional y otros s/ daños y perjuicios (daños derivados de la contaminación ambiental del Río Matanza Riachuelo)”, expte. Nº CSJN 1569/04(40-M)) and especially in presentations “Opinión del Cuerpo Colegiado 2016” and “Resumen de la presentación - Cuerpo Colegiado - Audiencia 14-3-18”. Also in the published document “9 años del fallo de la Corte. Una política de Estado todavía ausente. 2017”. On the other hand, in the execution file of the sentence in relation to water quality (“Acumar c/ Estado de Aguas, napas subterráneas y calidad de aire” FSM 052000003/2013, that processes before Juzgado Federal de Morón Nº2) there are numerous presentations by the Collegiate Body in relation to Resolution 46/17 on water quality. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 29 Moreover, a draft law on the protection of wetlands is being discussed at the national level in Congress, which could have a high impact on the Riachuelo Basin. FARN has been working on protecting wetlands for several years4. The organisation has advocated for wetlands to become natural reserves, using different legal strategies including litigation. Hence, it has strong ties with territorial organisations and residents who work for their protection. Some are members of the Knowledge Coalition and co-researchers in this R&I action. FARN is currently part of a campaign to achieve the legal protection of Ciudad Evita´s wetland and also monitors the situation of other wetlands, making legal presentations as to avoid alterations to those ecosystems. Finally, we included relocation of the population5 living in areas with environmental risks for three reasons. Firstly, this is a question of great social and legal relevance: as part of the judicial mandate of the Supremes Court, around 17,700 families had to forcibly move in order to restore the 4 Through its biodiversity area, FARN has been working on the protection of wetlands for several years, throughout the national territory and particularly in the Matanza Riachuelo Basin. FARN promotes the enactment of a wetland protection law (https://farn.org.ar/leydehumedalesya-ambientalistas-piden-avanzar-con-un-texto-unificado/) and works for the specific protection of wetlands in the Riachuelo through studies (https://farn.org.ar/wp- content/uploads/2020/10/Reserva-Ciudad-Evita.pdf), written and audio-visual publications (https://youtu.be/- gN7A2o0Arw https://www.youtube.com/watch?v=_pMRW2Lihto&feature=youtu.be https://farn.org.ar/preocupacion- por-la-reserva-municipal-santa-catalina/),presentations to administrative authorities (https://farn.org.ar/alerta-en- santa-catalina-por-obras-de-ampliacon-de-vias/ https://farn.org.ar/farn-pidio-al-poder-ejecutivo-de-la-provincia-de- buenos-aires-vetar-la-ley-que-desafecta-64-hectareas-de-la-reserva-natural-laguna-de-rocha/ ) and before the court of execution of the sentence "Mendoza", where various intrusions in the wetlands of the basin have been denounced and the judge was able to order the creation of an environmental evaluation system in ACUMAR of works and projects to be carried out in wetlands or protected natural areas and to protect (all this can be seen in the public access file “Ordenamiento territorial (autorización de mov. de suelos) s Contencioso” FSM 052000017/2013, that processes before Juzgado Federal de Morón Nº2). 5 Part of the actions that FARN has developed in this matter can be reflected in the hearings cited in note 1 and in the file of relocations of the execution of the sentence “Mendoza” (“Acumar s/ Urbanización de villas y asentamientos precarios s/ Contencioso Administrativo”FSM 052000001/2013, that processes before Juzgado Federal de Morón Nº2). There, irregularities have been reported in construction projects, shortcomings in moving processes and lack of compliance by political leaders. The organisation also participated in a public hearing held to create a relocation protocol (https://www.acumar.gob.ar/wp-content/uploads/2016/12/Informe-Final-Audiencia-P%C3%BAblica-2017.pdf ). #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 30 environment and avoid risks to the population. New houses have been slowly built (over 4000). There have been discussions about the quality of the new houses, their location (in relation to the life plan of the people and the environmental status of the new locations), the quality of the constructions, the participation of the people affected in the processes and decision-making. As a matter of fact, this is the only issue included in the judicial cause that had direct participation of affected people. There are many different ways in which policy making has responded to these processes. But the information is dispersed; each process has been carried out without information from the others. The platform could then be a very relevant tool to facilitate participation, to share experiences and practical knowledge, and to strengthen connections that may enable transformative actions towards improving living conditions for communities in the basin. Issue Relevance Connection to FARN’s agenda Platform´s potential contribution (examples) water quality Sewage and industrial effluents, as well as solid urban waste, represent the main causes of contamination in the basin. For several years, FARN brought evidence on water quality. The organisation systematically discussed its importance in Court. To share people understanding or personal experience on water quality or public policy, and how that matters for their lives. protection of green areas Green areas provide fundamental environmental services and constitute the main tool for environmental re-composition. Nevertheless, wetlands in the basin are territories under dispute, with several different actors pushing for their access to land. FARN has been working on protecting wetlands for several years. The organisation has advocated for wetlands to become natural reserves, using different legal strategies including litigation. Articulation among different organisations, for instance to share strategies towards green area conservation. relocation of population affected by situations of environmental risk As part of the judicial mandate of the Supremes Court, around 17,700 families had to forcibly move in order to restore the environment and avoid risks to the population. There FARN has been active in reporting irregularities in relation to relocations in different judicial causes. The organisation also participated in public hearings held to create a relocation protocol To share experiences and practical knowledge, and to strengthen connections that may enable transformative actions towards improving living conditions for communities #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 31 have been discussions about the quality of the new houses, their location (in relation to the life plan of the people and the environmental status of the new locations), the quality of the constructions, the participation of the people affected in the processes and decision-making. in the basin. Table 3: Selected Environmental Justice issues in Matanza-Riachuelo to start working in the platform co- design 4.1.4 Targeting the Platform: the Co-design Workshop The goal of the workshop was to produce a first brainstorming of ideas about how the platform could become a useful tool for sharing ideas, experiences and practices in relation to problems and solutions involved in each of the three selected topics. At the same time, this workshop enabled the interaction among members of our Knowledge Coalition network for the first time. Therefore, it had the double purpose of formally launching the project and creating a space for the stakeholders to start interacting. We needed a virtual space designed for people to share their ideas regarding the project’s purpose, in the context of lockdown restrictions, this had to be virtual. We adapted methods for a digital experience taking into consideration that it included people who were not necessarily accustomed to digital tools, neither they knew each other. Participants We built a list of 120 potential candidates to be invited to the workshop. Among them there were 15% from scientific organisations, 33% from policy and 52% from the community. The invitations included a flyer for advertising the event, the workshop programme and a registration form which #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 32 included the video on information of personal data management (same video as in micro-workshops). To register for the workshop, people had to agree on our data policy, and they could opt for their names to be mentioned as participants. Only those properly registered were contacted with the virtual credential to attend the meeting. Especially among community members, there were some people that were not included in the original list but learned about the workshops by other members of the community and asked for permission to participate, which was granted in all cases. Members of CENIT/UNSAM and FARN pursued a dedicated follow-up of invitees. In total there were 34 registered participants and over half of them actually participated in the workshop. Among participants, there were around 10% from scientific organisations, 45% from community and CSOs and 45% from Policy covering different jurisdictions; 50% of participants were female and their interests were evenly spread around the three thematic areas. Some people that had registered to participate afterwards explained that they had overlapping activities but were still interested in the project. Also, at the last moment some community members who had registered to participate had to deal with some emergency situation in their territory and did not attend. We will follow-up on this too. Methods - Dynamics The workshop lasted two hours and included plenary and group sessions. The main goal of the activity was to gather information on the participants’ inputs on the project main outcome: an open- source Citizen Science platform for promoting actions towards Environmental Justice There were three plenary sessions, with group sessions in-between. We used several digital tools as mentioned below and enabled the Zoom chat for conversation and reactions. The first plenary included presentations by representatives of both leading organisations (FARN and CENIT/UNSAM) about the project and its Citizen Social Science approach. After these, a collective #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 33 exercise to gather information was conducted using the online tool of wordcloud of Mentimeter. Two questions were posed to the group in order to understand participants' perception of the existing problems: first, we presented a question on the main socio-environmental problems in the basin; and second, we proceeded similarly but focussing on of each the three topics of interest: conservation of green areas, water quality and relocations. The wordclouds that emerged from this session were then used as inputs for the discussions on both group sessions. The second plenary session consisted of a brief presentation of FARN’s previous versions of QPR platform and their interest in promoting the participation in the basin as a fundamental aspect of Environmental Justice. The relevance of the three thematic areas was also briefly discussed. Finally, the last plenary session included the presentation of the group discussions and a reflexive exercise conducted by ZSI to gather information on the participants’ expectations about the project using the Padlet tool. The group discussions were facilitated and annotated by CENIT/UNSAM and FARN teams. The first group session aimed at identifying how people got informed about socio-environmental problems in the basin with the idea to create an initial map of the type and sources of information about the basin that could be included in the platform. Therefore, we used the first group session as a first anchor in the process of collectively discussing the project: stakeholders were asked about their knowledge regarding information sources and formats and the problems they face when using it. This contributed to focus on the project’s main goal (to create an online Citizen Science platform to map socio-environmental problems and potential solutions) by broadening out the diversity of perspectives of what is considered useful information. The second session was more directly associated with the project’s expected output: we asked participants to discuss their ideas about the platform’s purpose and the information to be produced and shared through it on each thematic topic. We used the wordclouds from the mentimeter exercise as reflexive points but with the focus on online interactive formats (as presented by the examples #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 34 from the first session). We also asked about obstacles and problems that may turn up when designing and using such a platform. The group sessions were organised through breakout rooms where the facilitators used the Google Jamboard tool to introduce the discussions in interactive ways, and for the participants to be able to write their thoughts and opinions in a more direct way, considering they may not feel initially comfortable with sharing them out loud. The boards also aimed at providing a record of the discussions, and to allow the facilitators to have inputs to catalyse the conversation, as they were shared online and the annotations visible for the participants in the other breakout rooms, allowing for cross fertilization of the debate. 4.1.5 The Knowledge Coalition as a Network Approach We initiated the project idea in close collaboration with a dozen of actors among policy makers, CSOs and community actors, and researchers from academic organisations, all of whom wrote letters of support for the project proposal in March 2019. In Figure 2 we draw how the network expanded both outside but especially inside the Matanza-Riachuelo basin. New actors who shared the R&I action were contacted by FARN and CENIT/UNSAM to take part in some of the activities we described above. There were also some few cases that initiated the contact themselves. Those that expressed their interest to remain connected are considered part of the Knowledge Coalition network, reaching a total of 32 actors, classified in research groups (28%), public policy organisations (22%) and CSOs (50%).6 6 In Table 2 we stated that there 29 unique organisations which participated in the R&I action activities but in Figure 2 there are two additional organizations (one NGO and one territorial organization) which are part of our knowledge coalition since 2019. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 35 Thus, we define our Knowledge Coalition as a network of stakeholders who are interested in and informed about the R&I project goal and vision and who play an active role, either participating in or co-designing different actions. Actors in this network interact and deliberate in spaces mainly facilitated by the project's coordination team. In all cases, we seek to build from synergies of their activities in the basin. 36 Figure 2: Network expansion in 18 months within and outside the Matanza-Riachuelo basin #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 37 4.2 Knowledge Coalition Outcomes 4.2.1 Introduction This section is organised in three blocks. First, based on interviews and micro-workshops, we present the socio-environmental problems and actors’ socio-technical practices addressing them. We found an extensive list of socio-environmental problems affecting the basin that we classified in broad categories, developed to allow comparability with other sources of information, especially ACUMAR. We contrast these understandings across different types of actors and in different locations. Second, we focus on the concept of participation for the production of knowledge that could contribute towards transformation. We are interested in reflecting from the perspective of different actors conforming the Knowledge Xoalition their understandings on the value of participation and also on how participation could be implemented and supported. We believe it is important to recognize that there are different ways in which participants could engage with Citizen Science projects (Haklay, 2018), depending on their interests, capabilities and project goals. Thus, in our R&I action we also expect that participation will adopt different characteristics for different actors in different activities and processes. Particularly, we are interested in addressing how the communities, in general, and co-researchers who are part of the Knowledge Coalition will participate. In this section we will present an approach to the stakeholders’ perceptions of citizens’ participation in both policymaking and knowledge production processes. These inputs are key to better understand the expectations and tensions that may appear when co-designing the project and defining its focus in the different instances with the knowledge coalition members #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 38 Third, we present preliminary results on the co-design workshop, particularly in relation to the participating stakeholders’ experience in using available information about the basin and their ideas on the purpose and potential obstacles in using the platform. 4.2.2 Socio-environmental Problems and Practices to address them Figure 37 depicts the most important issues raised by different actors when asked, in an interview setting, about socio environmental problems. 7 This wordcloud displays the frequency of nouns used by interviewees to answer the question “What are the Matanza- Riachuelo basin’s main socio-environmental problems?”. We used the bag-of-words method coded in Python to represent the multiset of the words used in this part of the interview and then we filtered all terms that did not match the noun criteria. Finally, we rendered the resulting dataset using nubedepalabras.es #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 39 Figure 3: Wordcloud of nouns for interviewees’ responses to the question on socio-environmental problems in the basin Those words come as responses to the specific section in the questionnaire asking about socio- environmental problems. Thus, issues related to the water, sanitation, floods, sewage system, settlements (informal housing), rubbish, contamination and health stand out in the wordcloud. However, there are also other nouns, which do not represent problems, specifically, but relate to the situated experience of actors in the basin: such as river, neighbourhoods, neighbours, water streams, territory, work, people, etc. The interviews’ and micro-workshops’ materials (transcriptions and notes) were analysed to map the main issues of the basin identified by the stakeholders. After listing these problems, we codified them into six categories that emerged from the project's original proposal and could work to contrast our findings with official public policy’s documents. The six categories of problems are the following: #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 40 • social vulnerability: includes any reference from the interviewees or micro-workshops’ participants to the conditions affecting the living standards of communities in the basin. These conditions include infrastructure deficiencies related to the provision of public services and basic rights such as access to food, health, education and housing as well as references to the stigma that such conditions may produce. • contamination: the material consequences of different activities that affect the basin’s environment related to productive activities, deficient public infrastructure and/or individual behaviour. • green spaces conservation: actions and situations that refer to the disturbance of public areas that provide environmental and recreational services to the basin. Some of them were legally defined as objects of protection. • flooding: references to the events produced by the covering or submerging of normally dry land by heavy precipitations and river overflow. • health problems: all the individual or collective discomforts or diseases that actors directly associate with living in the basin or with contamination. • public policy (actions and inactions): the issues identified as part of the actions or absence of them that are meant to be implemented by the public policy authorities (national, provincial or local) to comply with the judicial sentence request, and translated into the PISA. These categories have some relation with the ones contemplated by ACUMAR’s risk maps, develop to determine the prioritization of the different policy interventions8. The authority refers to social 8 In 2018 the authority developed an environmental risk map (ACUMAR, 2018) with the purpose of guiding public policy interventions (mainly relocations/urbanizations and infrastructure) and a health risk map (Pasqualini et al., 2018) that incorporates among other variables the Integral Evaluations of Environmental Health in Risk Areas (EISAAR for their initials #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 41 vulnerability—defined as the ascertainable condition of certain groups associated with their exposition to socioeconomic, habitational, sanitary, nutritional, psychosocial and environmental factors that determine their capacity to recover from catastrophes and threats—when including as a variable the people’s housing conditions (for which there is available consolidated official data). Floods and contamination are reflected as several of the threats that are determinants of risk: landfills (sites identified and tracked by the Direction of Solid Waste Management), presence of industrial establishments (considered as priority for control as these industries have been categorized as high in environmental complexity) and the quality of the underground water for human consumption (evaluating the presence of nitrates, as an indicator of potential contamination by industrial activities). The health index considers several issues associated with the morbidity and mortality produced by environmental diseases and contamination (as evaluated by ACUMAR in air, water, land, etc.). Finally, protected areas and wetlands in particular are monitored by a program that seeks to create a database for their sustainable management and preservation, although it includes water and sediments parameters only, for the hydrogeological characterization of the wetlands. In Figure 4 below we map the problems that were mentioned during both interviews and micro- workshops and their locations according to actors’ narratives. It goes without saying that data displayed there does not represent a complete picture of the problems faced in each location, but attempts to highlight both the complexity of the socio-environmental phenomena ahead and the extension of situated experiences that conform our network. In addition, since research activities in Spanish) that the authority has been conducting (in alliance with the municipal jurisdictions) since 2016 to evaluate the population’s environmental health by along the basin. In 2019 (ACUMAR, 2019) it also published a report for which it had begun working in 2016 with the National Scientific and Technical Research Council to produce an inventory of the basin’s wetlands, following the judicial demands as well as the Collegiate Body’s recommendations. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 42 were carried out in the context of Covid-19 pandemic and lockdown restrictions, all actors, but especially community and policy actors, were overwhelmed by daily sanitary and economic emergencies, which may have changed their own priorities regarding socio-environmental problems. The construction of the Knowledge Coalition network is proposed in this project as a dynamic process. So far, we have connected with actors with experience in eight of the fourteen municipalities included in the Matanza-Riachuelo basin: Avellaneda, Almirante Brown, Merlo, Lanús, La Matanza, Lomas de Zamora, Esteban Echeverría, and Buenos Aires City. In most jurisdictions we map socio-environmental problems belonging to several categories, with important specificities in each of them. #5.1 Report on Knowledge Coalition Building 43 Figure 4: Basin map and socio-environmental problems classified in six categories #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 44 When the analysis is organised by types of actors, we could identify different problems’ prioritisation and also different practices aiming at addressing them, as shown below. CSOs and territorial organisations in our network frequently referred to issues related to social vulnerability, particularly in relation to poor access to housing and lack of access to public services such as drinkable water and sewage. Contamination of water and land coming from industrial and sewage waste and rubbish was also pointed out frequently among main problems. Since one of our micro-workshops was organised with neighbour associations defending natural reserves, green area conservation and changes in habitat conditions also turned up as important concerns. Finally, this type of actor was the one more prone to identifying problems they suffered that were directly related to policy action or inaction. CSOs’ and territorial organisations also reported activities to address those issues. These involve the organisation of complaints, mobilisations and environmental awareness campaigns against rubbish dumping, the destruction of natural reserves and the sale of public spaces. CSOs in particular, have a leading role in making visible main issues and in claiming for participation on both regulatory design and monitoring policy processes. Policy makers in our network identified problems similarly to communities but their priorities focus on the social vulnerability —housing deficit and lack of access to public services, but also basic needs such access to food, health and employment. Besides, they also mentioned environmental contamination problems which cannot be underestimated such as rubbish dumps and dumping of sewage and industrial effluents, and their associated health problems they may cause. The deficit of green areas and the risk of gentrification that can follow the improvements at the basin’s environment were also mentioned in some interviews, although not as main problems. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 45 It must be noticed that actors from policy bodies have been in office for less than a year (governments in all jurisdictions changed in December 2019) and during pandemic time. Thus, although they mentioned some specific practices that were carried out in their jurisdictions to promote citizen participation (e.g., municipal forums for the conservation of green spaces) or environmental monitoring (e.g., creation of technical observatory of agrochemicals), they were still incipient and overpassed by other activities to deal with current emergency. Finally, members of research organisations tend to focus on single issues related to their research specialisation. They usually highlight how those issues are important for communities wellbeing. Water quality was one important research goal, and therefore, environmental contamination due to several causes included industrial, agricultural and sewage waste; rubbish dumps were highly mentioned. Researchers relate contamination with health problems and they mention that social vulnerability, especially the one associated with housing and lack of essential public services, only worsen the relation between contamination and health. In addition, the conservation of green areas was also mentioned as vital importance to avoid recurrent floods, aggravated by solid waste disposal obstructing streams, that cause evacuations and even deaths. As mentioned, activities and experiences by researchers from scientific organisations in our network were mostly related to analysing contamination, particularly in relation with water quality. For example, how water remediation tools used in other countries could be applied at the basin, or the elaboration of methods to control water use or the use of Citizen Science methods to monitor aquatic environments. There were also biological studies related to metal contamination, engineering studies for monitoring water bodies throughout the basin to anticipate floods and social studies on the effects of relocation on people and neighbourhoods. Most of these studies attempt to have an impact on public policy. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 46 4.2.3 The Meanings and Processes of Citizen Participation in Policy Making (for Community and Policy Actors) and on Knowledge Production (for Scientific Actors) In our R&I action—and in citizen social science more generally—we envisage that people who engage are politically interested in changing a reality that affects them. They may contribute not just with information or data production about problems as defined by researchers, but also with their personal and situated experience in seeking for solutions. Yet, (their) participation could be organised in different ways by establishing the appropriate governance mechanisms. In this section we discuss how this idea is seen by different actors in the knowledge coalition, when we asked them about their understanding of the role of citizen participation. In our Knowledge Coalition network, citizen participation was recognised as having different roles which could be broadly associated to the different types of actors we interacted with. From a civil society perspective citizen participation in policy making has a democratising role; it is seen as the opportunity to be treated as equals in the definition of public policies priorities. In turn, from the perspective of public policy, citizen participation has a contributory role as it allows for a better identification of community priorities. If successful, this contributes to policy actions to be culturally or socially appropriated by the community, an important dimension for both the effective implementation as well as the sustainability of public policy. Academic actors were asked about the role of citizen participation in the production of scientific knowledge. In general, participation was seen as a route to improve the responsiveness of science. It was claimed that scientific projects could better reach community needs when working closely with them. In addition, due to that very same reason participation also contributed to the legitimisation of #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 47 science, before society and public policy actors, which is valued particularly during periods when public investment in science is questioned. Regarding policymaking processes, civil society actors see that community organisation is a necessary condition for participating in public policies, but it is not sufficient. Articulation with public policy bodies is also important to build trust relations that may be conducive to more effective participation. There are several important experiences in the basin where participation has accomplished important achievements, such as producing information about the sources and consequences of pollution (Pereira & Tobías, 2014), mapping and contrasting the results of the policy implementation (del Castillo & Fressoli, 2016; Radtke, 2018) and co-producing protocols for the relocations processes (Demoy et al., 2016). In all cases, there were social organisations and NGOs involved in the mobilization of different stakeholders. Yet, the organisations and community actors we interacted with identified a risk of citizen discouragement, since participation can be very demanding and—although included in the basin’s sanitation policy judicial sentence—there are no binding mechanisms created for participation to be translated into tangible public policy measures: existing mechanisms such as the “working roundtables” and public audiences are not binding. In addition, processes are so slow that can be frustrating. In turn, policy makers discussed the difficulty of balancing participation and deliberation with contexts of emergency decision-making (such as those imposed with the difficulties of Covid-19 times). But they also discussed the lack of appropriate mechanisms that would enable more engaged participation (innovating from the traditional consultative approaches). Finally, although as we mentioned there are some well-established experiences of Citizen Science in the basin, most researchers we interviewed do not consider citizen participation as an integral part of the knowledge production phase of the research cycle. They see it as part of University outreach #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 48 activities or introduced through traditional channels such as interviews to obtain data, or communication strategies, to share research outcomes, and in some cases, for social monitoring of environmental data. Outside specific Citizen Science networks, there is little knowledge about Citizen Science projects. Researchers working in Citizen Science projects, argued that it proved to be difficult to sustain collaboration with communities for a long time, especially because those activities are not recognised in scientific evaluation schemes and also because it was too demanding on time and energy to be ready to commit to those activities in the long run. Dealing with community expectations, especially in the context of social vulnerability, was also mentioned as an important barrier. 4.2.4 The First Steps Towards Platform Co-design One of the goals of the workshop was to identify current use of digital information by different stakeholders and the problems they face in general when looking for information. Participants discussed in small groups the information they use in their daily activities in the basin and we also asked specifically about some sources of information which share digital open data, to understand their experience with them in terms of access and use. There were 30 unique sources of information mentioned in the almost 50 post-its written in Jamboard. The distribution of digital vs. analogue sources was 20 to 6, with 4 that were classified as ambiguous (as they could be consulted either way and participants did not specify). We also found that in all break-out rooms participants mentioned at least one local source of information (from municipality’s websites or contacts to local press, organisations and neighbours). In relation to people's experience when using available information, the issues mentioned were: information’s obsolescence (due to lack of update or website maintenance); data format which made it difficult to reuse; visualization issues; and data fragmentation. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 49 The second purpose of the workshop was to initiate more concrete discussions with members of the Knowledge Coalition on our R&I action goal of building a Citizen Science platform for mapping socio-environmental problems and promoting actions towards Environmental Justice. We divided the discussion on break-out rooms per thematic areas, but we found that there were some common topics that stood up in all rooms: to share experiences and narratives regarding the problem matter, and to facilitate networking and dialogue among different initiatives. The main concerns regarding the use of a digital platform that emerged in the three sessions were related to restrictions in technological infrastructure; lack of technical capabilities; potential misinterpretation or inadequate use of the uploaded information; and the need for data validation. 5. Concluding Remarks Our R&I action involves fairly complex and diverse socio-environmental phenomena in a large territory which is densely populated. In this context, we seek to articulate with a large network of allies, with previous experience and responsibilities in the basin. Network formation is dynamic and the participation of actors in the R&I activities will vary over time and the type of action. From our experience, we could argue that three variables affect engagement by different types of actors: thematic expertise and/or interest of participants; degree of synergies with their own activities in the basin and the specificities of the expected contribution for each planned action. We envisage that in order to address the complexity of socio-environmental issues involved in R&I action we need to enable participation from a diverse set of stakeholders, who could contribute to better identify problems, mobilise resources and facilitate socio-technical transitions, as the academic and policy literature suggest (Bäckstrand, 2003; Gallopín & Vessuri, 2006; Sauermann et al., 2020; Stirling, 2007). However, as these authors claim, the social impact of Citizen Science projects depends on overcoming several challenges that turn up when trying to guarantee scale, diversity and intensity of #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 50 participation (Den Broeder et al., 2018; Heiss & Matthes, 2017; Kythreotis et al., 2019; Sauermann et al., 2020). Challenges are related to how to sustain participation and how to respond to the time, technical and regulatory constraints that each participant faces in their own institutional and cultural context for action. Thus, to promote sustainability of such participation we need to link to interests and previous and future activities of these heterogeneous participants. That is why we believed a network structure of stakeholders’ participation is more appropriate than a fixed coalition of stakeholders. This implies that stakeholders will participate on and off in the different activities we propose but they are nevertheless well informed and connected to the project activities; they will actively participate when they find it suitable in terms of their own agenda. The challenge is then how to promote synergies among diverse stakeholder agendas without departing from the R&I action vision, that is to encourage citizen participation facilitated by digital tools to promote transformative actions towards Environmental Justice in the basin. The virtual environment imposed by Covid-19 pandemic added new challenges, particularly when considering the digital gap affecting people living in vulnerable conditions. Network formation is a dynamic process and therefore it is always a work-in progress. Yet, people in the Knowledge Coalition network have manifested explicit interest in participating and being informed on our activities. Therefore, despite important challenges ahead, especially in relation to Covid-19 related restrictions and uneven and poor digital infrastructure in the country, we think we have been able to create a yet incipient but growing network of actors interested and connected to our R&I action. The main challenge we encountered so far was to work in a lockdown situation with communities living in vulnerable situations with poor digital infrastructure. On more than one occasion, it was not possible to contact interested members of the community due to connectivity issues. Articulation with #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 51 public policy actors was also very complicated in this situation; we could do not more than acknowledge that they were buried in daily emergencies and we were not as successful as we expected in reaching them. Interviews and workshops turned virtual. For the former and for the cases the digital barrier was overcome, we faced some challenges in administering the Informed Consents. We learnt from the process and it went more smoothly over time. For the latter, we originally thought it may have been complex to gather a diversity of actors in a virtual environment, especially due to asymmetric power, digital capabilities and potentially conflicting interests. But after building trust through interviews, information communications and micro-workshops we managed to organised a very productive interactive workshop, some six months after the R&I action formally initiated. Challenges in relation to implementing the IC procedure were manifold. Firstly, we needed to design the tool almost from scratch. Informing participants of the research processes and obtaining their explicit consent is a common practice in biomedical projects in the country. However, in those cases people are the object of research and therefore tools used in those contexts are not straightforwardly adaptable to the participatory and collaborative approach of our R&I action. When the project began and prior to our initial activities we designed the IC forms and procedures. We documented all the participatory activities and made decisions in terms of the information we would share with the consortium’s members, discussing the types of personal data to be collected and measures of protection. We followed our colleagues’ recommendations and studied their forms’ proposals, as well as our local normative guidelines and examples of consent for other disciplines and developed our own for the different types of stakeholders and their participation, translating them to English as well. When we had to reprogram our activities due to the lockdown, we needed to design new tools for unforeseen activities such as micro and co-design virtual workshops. The impossibility of meeting face-to-face led us to innovate in our procedure, simplifying the language but also the format for providing information: FARN communication team produced a video and we implemented both oral #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 52 consent and electronic agreement through Google Forms, with identification assured by requesting confirmation with emails. Going through those challenges made us confident in our capacities to adapt our plans and remain flexible to new turns in the context of uncertainty. We have relied on stringent mechanisms for organisation and articulation among main partners. We established a fortnight team meeting fixed schedule since the beginning of the lockdown, which allowed us to thoroughly discuss necessary changes in original plans. We also documented decisions and established follow-up mechanisms. In addition, for building the Knowledge Coalition we rely on both organisations’ previous networks and we devote time and effort to build trust with new contacts, which is of paramount importance for the success of our project activities. We learnt it could be gained even in the absence of face-to-face interaction. We were also positively surprised by the good reception of digital tools among workshop participants. Yet we believe in future workshops and interactive activities we need to provide more time for oral discussions. In the co-design workshop, we realised that some of the group discussions were cut down before they could properly finish. Overall, we found that virtual interactions worked better in more institutionalised environments. However, in the case of community members along the basin we still need to experiment with alternative mechanisms. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 53 6. References ACUMAR. (2018). Identificación de áreas prioritarias para intervenciones en la cuenca Matanza- Riachuelo. Análisis de riesgo ambiental. ACUMAR. (2019). Estudio de Humedales en la cuenca Matanza-Riachuelo. Estado de situación. ACUMAR. (2020). Informe de Mandas. Estado de cumplimiento y acciones. Bäckstrand, K. (2003). Civic Science for Sustainability: Reframing the Role of Experts, Policy-Makers and Citizens in Environmental Governance. Global Environmental Politics, 3(4), 24–41. https://doi.org/10.1162/152638003322757916 Biodiversidad de la cuenca Matanza-Riachuelo · iNaturalist. (n.d.). Retrieved 26 October 2020, from https://www.inaturalist.org/projects/biodiversidad-de-la-cuenca-matanza-riachuelo Cochero, J. (2018). AppEAR: A citizen science mobile app to map the habitat quality of continental waterbodies. Ecología Austral, 028(02), 467–479. https://bibliotecadigital.exactas.uba.ar/collection/ecologiaaustral/document/ecologiaaustral_v02 8_n02_p467 del Castillo, M & Fressoli, M. (2016). ¿Qué pasa Riachuelo? In M. Fressoli & V. Arza, The impact of citizen generated data in Argentina (pp. 21–26). CIVICUS DataShift. Demoy, M., Yacovino, P., Olejarczyk, R., Swistun, D., Campos, N., & Lekerman, V. (2016). Articulación entre la academia y la gestión pública. Reflexiones sobre la experiencia en procesos de relocalización involuntaria de población. Ponencia Presentada En Congreso Internacional Contested_Cities. Disponible En: Https://Bit. Ly/2iAv8FL [Fecha de Consulta: 08/10/2018]. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 54 Den Broeder, L., Devilee, J., Van Oers, H., Schuit, A. J., & Wagemakers, A. (2018). Citizen Science for public health. Health Promotion International, 33(3), 505–514. https://doi.org/10.1093/heapro/daw086 Fressoli, M., & Arza, V. (2016). Discussion. In M. Fressoli & V. Arza, The impact of citizen generated data in Argentina (pp. 42–53). CIVICUS DataShift. Gallopín, G., & Vessuri, H. (2006). Science for sustainable development: Articulating Knowledges. In Interfaces between Science and Society (1st ed., pp. 35–52). Greenleaf Publishing Limited. https://doi.org/10.9774/GLEAF.978-1-909493-67-4_4 Haklay, M. (2018). Participatory citizen science. In Citizen Science: Innovation in Open Science, Society and Policy. UCL Press. Heiss, R., & Matthes, J. (2017). Citizen Science in the Social Sciences: A Call for More Evidence. GAIA - Ecological Perspectives for Science and Society, 26(1), 22–26. https://doi.org/10.14512/gaia.26.1.7 Hess, D. J. (2007). Alternative pathways in science and industry. MIT Press. Kythreotis, A. P., Mantyka-Pringle, C., Mercer, T. G., Whitmarsh, L. E., Corner, A., Paavola, J., Chambers, C., Miller, B. A., & Castree, N. (2019). Citizen Social Science for More Integrative and Effective Climate Action: A Science-Policy Perspective. Frontiers in Environmental Science, 7. https://doi.org/10.3389/fenvs.2019.00010 Mira, J. (2016). Activismo verde: Participación ciudadana por el derecho al ambiente sano en la Argentina. http://ri.conicet.gov.ar/handle/11336/28611 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 55 Pasqualini, M. F., Bañuelos, C., Faure Montania, E., González, J., Hepp, Y., López, F. E., Malinovsky, V., & Mayo, P. (2018). Mapa de Riesgo Sanitario Ambiental de la Cuenca Matanza Riachuelo (ACUMAR, Ed.). ACUMAR. Pereira, P., & Tobías, M. (2014). Políticas de agua potable y saneamiento y demandas locales en el Área Metropolitana de Buenos Aires. MG Merlinsky, Cartografías Del Conflicto Ambiental En Argentina. Buenos Aires: CICCUS-CLACSO. Radtke, A. R. (2018). Caminos de la Villa: A case study in civic advocacy through crowdmapping [PhD Thesis]. Sauermann, H., Vohland, K., Antoniou, V., Balázs, B., Göbel, C., Karatzas, K., Mooney, P., Perelló, J., Ponti, M., Samson, R., & Winter, S. (2020). Citizen science and sustainability transitions. Research Policy, 49(5), 103978. https://doi.org/10.1016/j.respol.2020.103978 Stirling, A. (2007). A general framework for analysing diversity in science, technology and society. Journal of The Royal Society Interface, 4(15), 707–719. https://doi.org/10.1098/rsif.2007.0213 Verzeñassi, D., & Vallini, A. (2019). Transformaciones en los modos de enfermar y morir en la región agroindustrial de Argentina. ISSA. http://www.biodiversidadla.org/Documentos/Transformaciones- en-los-modos-de-enfermar-y-morir-en-la-region-agroindustrial-de-Argentina 
work_jjmyrtld4vetbiu26qooddg5ni	----	SYMPOSIUM: THE POLITICS OF PHILANTHROCAPITALISM Justice, Beneficence and the Modern Age Lenore T. Ealy Published online: 20 July 2011 # Springer Science+Business Media, LLC 2011 In an essay that fleetingly traverses the shifting sands of our perceptions of the role of philanthropists in our social and political order, Robin Rogers sets out to differentiate the emerging practices of philanthrocapitalism from philanthro- policymaking. Definitions are required, as we are immedi- ately caught up in something of a multi-syllabic nightmare, typifying our age when social analysis seems to depend more on our ability to coin new words for (supposedly) new phenomena than on our ability to take a trenchant look at the goings-on around us to determine whether there is anything new under the sun. For neologists Matthew Bishop and Michael Green, philanthrocapitalists are the super-wealthy—or super- influential (Bill Clinton is a pack leader, though the influence he peddles is largely of political rather than financial derivation)—who “are trying to apply the secrets behind [their] money-making success to their giving.” Rogers sums it nicely, “philanthrocapitalists want to bring the virtues of business to charity.” Setting aside for now discussion of the feasibility of this quest, we can define the second important term in Rogers’ essay, philanthro-policymaking. With this term, Rogers picks up on a core criticism of philanthrocapi- talism and differentiates the “agenda setting powers of the new global elite” from the tools they are developing and deploying to obtain better results from their charitable giving. This is an important distinction, and one that points to a perennial tension between justice and charity. Since the dawn of the industrial age, business, philanthropy and policy have engaged in a strange dance requiring the improvisation of new steps as practices of benevolence shifted from the Old World to the New. The Old World was characterized by systems of religious charity, paternalism rooted in agrarian cultures and courtly patronage. In the New World, urbanization and industrialization heightened percep- tions of social problems, and Enlightenment conceptions of equality and fraternity have seemed to demand more democratic forms of sanitary protection and welfare provision. Increasingly disembedded from a social structure that imposed various duties of beneficence, today’s successful entrepreneur often faces new questions about whether and how to share his bounty with the less fortunate. Before his ultimate transformation, Ebenezer Scrooge, that fictional functionary of the early “financial services industry,” encap- sulated the belief that policy could displace charity. When invited to make a voluntary subscription in support of the poor, Scrooge inquired of the door-to-door fundraisers, “Are there no prisons? … And the Union workhouses? … Are they still in operation? … The Treadmill and the Poor Law are in full vigour then?” Dickens tells us that Scrooge recoiled at the “ominous word ‘liberality’” and that he and Marley had been kindred spirits in this regard. Today’s super-wealthy, by contrast, seem to find some benefit in exploring their kindred spirit for doing good. For Rogers, the Giving Pledge, the voluntary commit- ment of a few dozen billionaires to devote a substantial portion of their wealth to charity, is philanthrocapitalism, and fairly benign. Meanwhile, the Good Club, a gathering in which the super-wealthy have met to identify social problems toward which they should combine and thus amplify their charitable efforts, is philanthro-policymaking, and potentially nefarious. We can see how persistently things stay the same despite how much then change when we consider how un-imaginative the Good Club’s target setting in fact has been. Rogers tells us that in 2009 the Good Club chose global population growth as a L. T. Ealy (*) Thinkitecture, Inc., 1415 Ironwood Dr W, Carmel, IN 46033, USA e-mail: lenoree@thinkitecture.com Soc (2011) 48:403–406 DOI 10.1007/s12115-011-9459-y focal problem. Are there subtle Malthusian echoes here of Scrooge’s cold-hearted response when informed that many of the poor would rather die than go to the poorhouse for relief? Unmoved by any sympathy with the dignity of these proud and apparently too abundant poor, Scrooge retorts, “If they would rather die…they had better do it, and decrease the surplus population.” There are deep ironies in the population skepticism of those most experienced in the creation of surplus wealth that suggest that our culture has not yet truly grasped or adapted to the new social conditions of democratic capitalism. Adam Smith, who was among the first to perceive the wealth-creating capabilities of the “system of natural liberty” that was possible when trade was freed from the shackles of mercantilist policy, was also among the first to perceive a need to explain why such liberty of exchange would not result in the dissolution of human sociality. Thus the same author who observed that it is from the self-interest of the tradesman, not from his benevolence, that we should expect our dinner would also write that “However selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him….” In The Theory of Moral Sentiments, Smith explored the tension between justice and beneficence that has been a persistent philanthropic concern. It is largely this tension to which Rogers points us in her reflections upon the dangers of philanthro-policymaking. These dangers, she suggests, largely lay in the presumption of the super- wealthy to establish social ends outside of the public discourse and political mechanisms that modern demo- cratic nations have established for these purposes. The danger of this presumption, of course, is that the extreme wealth possessed by the philanthrocapitalists actually empowers them to pursue these ends to some effect. Were you (presuming few billionaires are reading these pages) and I to get together and decide to remake the world out of our own sense of good, the danger would be merely quixotic; without hundreds of millions of dollars to foment social change we would potentially do more harm to ourselves and our loved ones than to society at-large. When looking at the super-wealthy, however, we do find ourselves facing a variant of Locke’s important question, “Who Judge?” Should all redistribution of resources be adjudicated through democratic political institutions designed to approximate a public consensus on social ends? This question seems to be answered affirmatively by advocates of stronger charity regulation and policies such as “greenlining,” which would mandate more diverse representation in charita- ble governance as well as more proportional giving to minority communities (at this time largely defined around racial demographics). Even a cursory public choice analysis of collective decision making, however, suggests that further politicization of social justice concerns will fail to achieve the outcomes desired by social egalitarians suspicious of wealth and its potential misuse by the wealthy. The tension between justice and beneficence is quite real and deserves to be prominent in the public discourse of a free society. This discussion may be greatly enhanced if we re- examine Adam Smith’s framing of the tension. Smith states boldly that “beneficence…is less essential to the existence of society than justice.” (167) In establishing justice as the necessary foundation of society, Smith is far from commend- ing the modern conception of “social justice.” He anchors his discussion of justice on the necessity of remedial justice designed to resolve private injury to persons and property rather than on distributive justice which orders benefits. “The most sacred laws of justice, therefore, those whose violation seems to call loudest for vengeance and punishment, are the laws which guard the life and person of our neighbour; the next are those which guard his property and possessions; and last of all come those which guard what are called his personal rights, or what is due to him from the promise of others” (163). Justice in this common law framework is for Smith the “main pillar” of society, but beneficence is the “ornament which embellishes” (167) and is “always free, it cannot be extorted by force.” (155) Against this clarity of distinction, the modern pursuit of “social justice” inclines to confuse beneficence and justice, to drive into the realm of policy, and call for the enforcement by police powers, a desire for positive welfare equality that may come at the expense of social harmony by encouraging envy and resentment. A system in which justice absorbs beneficence will also diminish or explicitly proscribe the role of private charity and thus will be lost opportunity for the wealthy to exercise and model the virtues of sympathy through philanthropic endeavor. It was Karl Marx, of course, who drove this suspicion of charity and its practitioners to such radical conclusions, and in the end Rogers is tangling with dilemmas at the heart of the contest between Smith’s “system of natural liberty” and Marx’s critique of “capital- ism.” Rogers approves of the philanthrocapitalists’ volun- tary desire to do good, but remains attendant to the fact that combinations of wealth might amplify the potential harms, to individuals, communities, or nations, that could accom- pany philanthropy that comes with such huge monetary incentives and influence. So, how exactly should a free society treat the desires of the super-wealthy to do good? Must we minimize the potential that such large-scale gifts will actually generate greater harm (the nature of unreciprocated and unrecipro- cable gifts is in fact to generate servility)? If so, how do we do so while respecting the freedom of the super- wealthy as persons to exercise and experience the virtues of beneficence? 404 Soc (2011) 48:403–406 Rogers’ teasing out of philanthro-policymaking from philanthrocapitalism offers us one possible way to engage the discussion. At the turn of the twentieth century a predominant social concern was to limit the power of business combinations that resulted in commercial and manufacturing monopolies and diminished the benefits of competition. At the turn of the twenty-first century do we face the need to contemplate how philanthropic “combina- tions”—defined as an over-alignment of social ends by the titans of philanthropy—might likewise be detrimental to some perceived public good? Undoubtedly, unleashing a fire hose of philanthropic funds into any established community is bound to have a plethora of unintended and potentially harmful consequences. A danger, on the other hand, in pursuing greater regulation of philanthropy is that we disrupt the very creativity and potential for virtuous deliberation that philanthropy affords. Rigorously disavow- ing philanthro-policymaking would require, however, that we begin to seriously consider how to disentangle justice and beneficence and develop a more robust social theory of philanthropy than the third-party governance model of Lester Salamon. We must ask whether the vast government funding currently provided to “charitable” organizations to realize ends set by public policy is in fact also a dangerous form of philanthro-policymaking. Rather than a monistic philanthropy—whether one absorbed in and dictated by state policy or one seeking to align public policy with its own rationale and ends—we should promote a genuine social pluralism in a “market- place” of beneficence. Lest the term marketplace distract here, I should clarify that I think continuing to explore the proper relationships between the state, commerce, and philanthropy would help us move beyond the overly simplistic and sometimes silly effort to map business practices and metaphors onto our philanthropy. There are certainly many forms of charitable activity that can and should be moved out of the realm of not-for-profit organization and reconstituted as business activity, where the feedback mechanisms of prices and profit/loss signals could help us more effectively utilize resources for the provision of goods and services. Likewise, there should be a robust conversation in the business world about better responsiveness to consumers, especially those with limited power as consumers, and the trade-offs between short-term profit maximization and longer-term considerations of resource stewardship. Both of these conversations would help us move toward the more positive social deliberation commended by Richard Cornuelle, author of Reclaiming the American Dream and Healing America, who articulated the growing need we have to restore people’s confidence in their capacity for identify- ing and solving problems they perceive around them. In fact, it is the resumption of distributed social responsibility— diminished during the twentieth century by centralizing political trends and the accretion of power in expansive administrative welfare states—that can most help counter- balance the potential harm of the philanthropy of the super- wealthy. A people empowered by a confidence that they can engage, as Cornuelle puts it, in “concerted action, national [or international] in scope but outside government” can form a myriad of social enterprises and associations to realize their common hopes and dreams. Thus mobilized, the “wisdom of crowds” will also be more likely to generate more accurate assessments of the benefits or dangers posed by any potential philanthropic Trojan horse offered by the super-wealthy. Empowered to experiment and associate in pursuit of both their personal and shared goals, whether coincident or collaborate, people can help ensure that responsibility and resources flow toward competence and away from incom- petence. Reclaiming their capacities and competencies as producers of their communities rather than as clients of welfare agencies (whether those providing subsistence welfare or an expansive menu of middle-class entitlements), people can recover that civility and conviviality and the beneficent virtues that grow upon the foundation of justice in which rule of law not men prevails. The fact is that the super-wealthy are destined to be highly controversial, dramatic and alluring public figures in any age. Wealth can foster hubris with catastrophic results. There is perhaps less danger to civil society in the wealthy becoming exhibitionist consumers of luxury goods than in their growing desire to “do good.” While sumptuous living may breed the social ill of envy, it may also act as a spur to others to be industrious in seeking the potential benefits of entrepreneurship. The desire to do good is surrounded by moral hazards, and yet we remain hesitant to give up our visions of a more humane society. We thus have three basic options in dealing with the super-wealthy: leveling by progressively taxing them, looking on while they do what they will, or assisting them in discharging what we might call the Spiderman dictum, to him who is given great power is also given great responsibility. “Where the necessary assistance [men have of one another] is reciprocally afforded from love, from gratitude, from friendship, and esteem,” wrote Adam Smith, “the society flourishes and is happy.” Perhaps the most humane approach is to treat the wealthy among us as persons not as bank accounts. We might thus encourage and support them in their variety of aspirations to do good. Science fiction writer David Brin, in a provocative essay pre-dating the current attention to philanthrocapitalism, urges that the super-wealthy, those capable not of $1 million gifts but of $100 million gifts, should be encouraged to aspire to the most high risk, high reward projects imaginable. Brin proposes that “these would be projects that ill-suit the typical investment horizons of industry or government, the two dominant capitalizing forces Soc (2011) 48:403–406 405 of the 20th Century. Because each is constrained by accountability—to constituents or stockholders—govern- ments and corporations must control risk in ways that don’t always hamper an individual billionaire.” The dangers of encouraging bold philanthropy in a vacuum of accountability must not be ignored of course. Thus we are called back to contemplate at least three fundamental principles on which philanthropy should rest: 1) All people, from the most poor to the most wealthy, must be deemed capable of exercising the virtues of justice (refraining from injuring others) and benefi- cence (providing others positive assistance). This means that we resort to policy primarily as a barrier to injury and a promoter of the “system of natural liberty” which alone is an incubator of genuine virtue. 2) All people, from the most poor to the most wealthy, must be regarded with dignity as persons capable of developing personal goals, exercising personal responsibility, and engaging in voluntary reciprocal exchanges of benefits in the realms of both commercial trade and charitable activity. 3) Society must be conceived of foremost not as a utopian goal but as a dynamic space in which conditions of limited knowledge are best ameliorated through insti- tutions that are not designed and managed by an elite but rather emerge as the outcomes of voluntary human action and the deliberations among people seeing themselves engaged in a great journey together. Cornuelle suggests to us that a good society is that which emerges from “millions and millions of small caring acts, repeated day after day, until direct mutual action becomes second nature and to see a problem is to begin to wonder how best to act on it.” This is a vision fitting for the New World and the modern age, yet undiminished in its human capacities for the pursuit of virtue despite the transforma- tion of social, economic and political institutions that gave birth to the most expansively wealth-creating and philan- thropic nation in history. From this perspective, philanthro- capitalism may better refer not merely to the practices of a handful of super-wealthy but to the broader social dynamics that both reward entrepreneurship and continually expand opportunities to participate in what Deirdre McCloskey commends to us as the bourgeois virtues. Let’s invite the super-wealthy into a conversation with us about the potential we all have to be transformed through charity. Perhaps we may then all aspire, with the Scrooge who returned from his “intercourse with the Spirits,” to become “as good a friend, as good a master, and as good a man, as the good old city knew, or any other good old city, town or borough, in the good old world.” Lenore T. Ealy is director of the Project for New Philanthropy Studies at DonorsTrust and editor of the journal Conversations on Philan- thropy: Emerging Questions on Liberality and Social Thought. 406 Soc (2011) 48:403–406 Justice, Beneficence and the Modern Age << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated v2 300% \050ECI\051) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /DetectCurves 0.0000 /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /Warning /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 1.30 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /Warning /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 1.30 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 10 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 600 /MonoImageMinResolutionPolicy /Warning /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /Description << /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e5c4f5e55663e793a3001901a8fc775355b5090ae4ef653d190014ee553ca901a8fc756e072797f5153d15e03300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc87a25e55986f793a3001901a904e96fb5b5090f54ef650b390014ee553ca57287db2969b7db28def4e0a767c5e03300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /DAN <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> /ESP <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> /FRA <FEFF005500740069006c006900730065007a00200063006500730020006f007000740069006f006e00730020006100660069006e00200064006500200063007200e900650072002000640065007300200064006f00630075006d0065006e00740073002000410064006f006200650020005000440046002000640065007300740069006e00e90073002000e000200049006e007400650072006e00650074002c002000e0002000ea007400720065002000610066006600690063006800e90073002000e00020006c002700e9006300720061006e002000650074002000e0002000ea00740072006500200065006e0076006f007900e9007300200070006100720020006d006500730073006100670065007200690065002e0020004c0065007300200064006f00630075006d0065006e00740073002000500044004600200063007200e900e90073002000700065007500760065006e0074002000ea0074007200650020006f007500760065007200740073002000640061006e00730020004100630072006f006200610074002c002000610069006e00730069002000710075002700410064006f00620065002000520065006100640065007200200035002e0030002000650074002000760065007200730069006f006e007300200075006c007400e90072006900650075007200650073002e> /ITA <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> /JPN <FEFF753b97624e0a3067306e8868793a3001307e305f306f96fb5b5030e130fc30eb308430a430f330bf30fc30cd30c330c87d4c7531306790014fe13059308b305f3081306e002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b9069305730663044307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a3067306f30d530a930f330c8306e57cb30818fbc307f3092884c306a308f305a300130d530a130a430eb30b530a430ba306f67005c0f9650306b306a308a307e30593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020d654ba740020d45cc2dc002c0020c804c7900020ba54c77c002c0020c778d130b137c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor weergave op een beeldscherm, e-mail en internet. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /PTB <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> /SUO <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> /SVE <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> /ENU (Use these settings to create Adobe PDF documents best suited for on-screen display, e-mail, and the Internet. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) /DEU <FEFF004a006f0062006f007000740069006f006e007300200066006f00720020004100630072006f006200610074002000440069007300740069006c006c0065007200200037000d00500072006f006400750063006500730020005000440046002000660069006c0065007300200077006800690063006800200061007200650020007500730065006400200066006f00720020006f006e006c0069006e0065002e000d0028006300290020003200300031003000200053007000720069006e006700650072002d005600650072006c0061006700200047006d006200480020> >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToRGB /DestinationProfileName (sRGB IEC61966-2.1) /DestinationProfileSelector /UseName /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles true /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /NA /PreserveEditing false /UntaggedCMYKHandling /UseDocumentProfile /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [595.276 841.890] >> setpagedevice 
work_jl7pqqmlovhafogfs4ak5uqgfy	----	TRYING TO DO JUSTICE TO THE CONCEPT OF JUSTICE IN CONFUCIAN ETHICS1 YANG MA0 T R Y I N G T O D O JUSTICE TO T H E CONCEPT O F JUSTICE IN C O N F U C I A N E T H I C S ’ b In his dealings with things under heaven chiin-tzu ( t h e noble man)2 is n o t invariably for or against anything. He just does what is ria (just, appropriate) X o n f u c i u s , t h e Analects (4.10)’ I. INTRODUCTION ‘ T h a t is not it at all. T h a t is not what 1 m e a n t , at all.” We o f t e n hear people saying this in everyday dialogues and conversations. This is a way for o n e t o protest others’s misinterpretations of her/his views. Very o f t e n , one may also a d d , “You are not doing justice t o what I said, at all.” What this means s e e m t o be t h e following: You a r e not doing justice t o what I said if y o u d o not render t h e correct meaning (cheng-yi ) t o what I said, because y o u are rendering something t h a t is n o t mine t o me, you are being insensitive t o t h e particular and unique meaning o f what I said. This use of t h e word “justice” indicates that hermeneutic issues are ethical ones. f This paper was originally presented a t a panel on “Confucian views of justice” a t an American Philosophical Association meeting. I was supposed t o read a paper, written in English, on Confucian views of justice. Under such conditions, 1 have been especially on the alert against a n y possible injustice I might d o to Confucian ethics. One seems t o have a special duty t o b e just when o n e writes on t h e concept of justice. Hence - t h e title “Trying t o d o justice t o the concepts of justice in Confucian Journal of Chinese Philosophy 24 ( 1 9 9 7 ) 521-551 Copyright 0 1 9 9 7 by Dialogue Publishing Company, Honolulu, Hawaii, U . S . A . 5 2 2 YANG X I A O ethic^."^ To regard hermeneutic issues as ethical ones is also a Confucian tradition. When a great Confucian scholar Chiao Hsiing w r o t e a c o m m e n - tary on t h e Mencius, h e entitled it Meng-tzu cheng-yi which could b e translated as ‘ T h e correct meaning o f t h e Mencius. ” Interestingly e n o u g h , early Confucian Hsiin Tzui used it.’ Therefore, I have t o take seriously t h e following objection: One may immediately object to this paper by saying t h a t t h e m o m e n t 1 write down t h e title, I have already d o n e injustice (or violence) t o Confucian ethics; when I u t t e r t h e Engfish words “the concept of justice in Confucian ethics,” which imply that Confucian ethics d o have a concept that can be expressed b y t h e Enghsh word “justice”, I a m imposing a modern Western concept o n Confucius, Mencius and their followers i n ancient China. The injustice I have d o n e t o t h e m is double, because t h e y are neither m o d e r n nor Western. To p u t this objection in o n e sentence, it is impossible for me to do justice to t h e concept of justice in Confucian ethics if I write in a language that is n o t Confucians’s language. Let me first clarify what is really going on in this objection. As w e shall know a t t h e end o f this paper, this objection cannot b e fully responded to h e r e . In the one-sentence version o f the objection t h e term “language” is actually used in t w o ways and t h u s can mean t w o things: h cheng-yi f originally means “upright and just”. T h a t is, a t least, h o w t h e i) a particular ordinary language like Chinese or English; let me call it the ”linguistic sense” o f the term “language ” ; ii) a particular set o f categories and concepts (when T h o m a s Kuhn says that Einstein and Newton speak two different “languages,“ he does not mean t h a t t h e former speaks in German and the latter in English) let me call this its “conceptual sense”. Very o f t e n , when people use t h e term langwge in its conceptual sense, they p u t i t into quotation marks (so o n e native English speaker m a y say JUSTICE IN CONFUCIAN ETHICS 5 2 3 t o another native English speaker: w e can’t understand each o t h e r ; it’s as if we are speaking in t w o “languages.”) Accordingly, there are actually t w o things going on in t h e objection. The first is the objection that a Western language (English) is not appro- priate in t h e Chinese context. However, it does n o t particularly have to d o with Confucians; it applies t o the case where o n e talks a b o u t Taoism in E n a s h , or, about Aristotle i n French, etc. T h e second objection is that t h e set o f Western categories and concepts - the concept o f justice being part of it - is n o t appropriate to apply to Confucian ideas. Thus there are actually two objections. In section 11, I shall t r y to clear u p some conceptual confusions that are involved in b o t h objections and introduce a crucial distinction between c o n c e p t and conception. (Notice that 1 use “concept,” not “conception,” in t h e title o f this paper). In section 111, I shall propose a working formu- lation o f t h e concept of justice, which shows h o w t h e term “just” is used a n d what it is like to have a concept of justice, m o r e specifically, what it is like if it is the case that there is t h e concept o f justice i n Confucian ethics. Section IV is a textual analysis which shows h o w , in the Analects and t h e Mencius, t h e term yia is used in the w a y described in the working formulation o f the concept of justice. That is to say, we can indeed fmd the concept o f justice in Confucian ethics. However, i t will also be shown that t h e Confucian understanding of the concept is a very particular o n e . I shall come back to t h e objections in section V . It is a b o u t t h e very possibility o f doing justice t o the concept of justice in Confucian ethics while writing in English. Interestingly enough, what surprised even myself is that the justice of “trying to d o justice” turned o u t t o b e the same kind of justice of “the concepts of justice in Confucian ethics.” There- fore, this paper becomes a n a t t e m p t t o treat t h e concept o f justice in Confucian ethics in a Confucian m a n n e r , or in a manner t h a t is just in its Confucian sense. 5 2 4 YANG XIAO 11. SOME CONFUSIONS AND THE DISTINCTION BETWEEN CONCEPT AND CONCEPTION Almost everyone who ever talks about the issue of justice in Con- fucian ethics in Engllsh has been keenly aware of, and often overwhelmed b y , two obvious “facts” about the differences between Confucian language and Western language both in its linguistic and conceptual sense. The first “fact” is actually about its linguistic difference, the second conceptual difference. In this section, I want to say a few words about some possible confusions involved in interpreting these two facts. Let me start with the first one. Thomas H.C. Lee begins hs article ‘The Idea of Social Justice in Ancient China” by saying that “One of the most important characteristics of Chinese social philosophy is its con- spicuous lack of one word [my emphasisjthat we can readily translate as ’justice.”’6 R P . Peerenboom also claims: “There is not even u term [my emphasis] for ‘justice’ in the classical lexicon of Confucius.”’ He also dismisses what he calls “the most likely candidate,” the Chinese character yia, by saying that it “has been translated in terms associated with justice - righteousness, duty, principle, obligation - though never, t o my knowledge, consistently as justice. Moreover, David Hall and Roger Ames have argued quite convincingly that. such Western-influenced langu- age is inappropriate in the Confucian context.”’ I would Wte to make two remarks about ttus linguistic fact. The first one is that we cannot presuppose that there must be one word or term in Chinese that corresponds to the English word “justice.” There might be a complex relationship between the Enghsh word “justice” and a set of Chinese words, not just one Chinese word. Or, if there is a corres- ponding relationship between “justice” and a Chinese word, it may be that only some uses of this Chinese word, not necessarily the other uses of the word, can be said to mean “justice.” As I shall show later, this applies to the Chinese word yia. In fact, the reluctance of translatingyia as justice also has to do with the extremely diverse uses of “yia” in Confucian ethics. I shall say more about this later. Here let me just say that, from JUSTICE IN C O N F U C I A N ETHICS 5 2 5 the linguistic fact that there is no one word that can be readily translated as justice, it is a fallacy to draw the conclusion that there is no concept of justice in China.’ The conclusion one can draw is simply that there is no such neat word-to-word correspondence between Chinese and Western thought. We may not expect that complex concepts such as justice would be like concepts such as “water”or “table,”which usually can have a neat word-to-word translation in another language. The second remark I want to make is about Peerenboom’s claim that, since “justice” is a part of “Western-influenced language,” it thus cannot be a proper translation of yia. Two senses are packed in the term “language”; from the fact that two people speak two different languages in its linguisric sense, we cannot immediately infer that they must speak two different “languages” in its conceptual sense. One cannot say that Chinese-speaking people must think differently from Enghhspeaking people. It may turn out that they do think differently ;it may also turn out that they d o not. Or, it may turn o u t that neither is thecase -that is, a detailed study may show that they thlnk somerimes differently and sometimes (e.g., when it comes to the concept of justice) similarly. This seems to be a conclusion that is hard to swallow for philosophers who always love the modal term “always” but never “sometimes”. However, one should not expect to draw neat and systematic conclusions if she tries to d o justice t o the particular. As we shall see, this is the spirit of Confucian conception of justice. I shall say more about this in the last section. The second “fact”, which almost everyone emphasizes, is that in traditional Confucian ethics there is no modern liberal conception of justice in terms of equal liberties and inalienable individual rights. Liberals in today’s China have put the blame on traditional Confucian ethics for the absence o f the conception of individual right in modern China. How- ever, this absence is not a unique feature that only ancient Confucian ethics has. Aristotle’s ethics does not have the modern conception of equal liberties and rights, either. Liberalism is a quite recent phenomenon even in the West.” 5 26 YANG X l A O In discussions concerning justice and societies of the past, a question has often been asked. (q1)Can we say that ancient Confuciunism or ancienr Con- fucian China, is unjust in its modern liberal sense? This is a very complicated issue. I can’t go into it here. I would simply say that this question should not be confused with the following question concerning a present society. (q2)Can we say that today ’s China, given that it can be called a Confucian country,’’ is unjust in its modern liberal sense? The first question is about “ancient China”, the second “today’s China.” A lot of arguments for the idea that one cannot apply the conceptions of equal liberties and rights to today’s China are based on the confusion of these two questions. What those arguments actually establish is simply that we should say no to the fust question; since the two questions are confused, people can be easily misled to believe that the it has been argued that we should say no to the second question as well.” So let me make it clear that the following argument regarding a relativistic view of ancient Confucian China is about ancient Confucian China and cannot be applied to today’s China, even if it can still be called a Confucian country. I want to call attention to the fact that one can say no t o the first question and say yes t o the second at the same time. That one can d o so is due t o the following two crucial differences between ancient China and today’s China. i) In today’s China, the idea of liberty and right is, of course, not yet totally institutionalized; it has, neverthe- less, become part of the political-legal culture of the nation.” T o a certain degree, it has become a (potential) JUSTICE IN C O N F U C l A N ETHICS 5 2 7 overlapping consensus, by a p p e a h g to which civil dis- obedience can even be justified in today’s China.I4 All these cannot apply t o ancient China. ii) Today’s China is n o t a homogeneously Confucianist country, even if one still wants to call it a Confucian nation (however, if that could be done, then, in a similar way, one can also say that the pluralistic society of the U.S. is a Christian nation). It seems safe t o say that in today’s China Confucianism, as a revival tradition, is not the dominant political-legal culture as it used to be in ancient China; it has to compete with other conceptions of good life, including liberalism. I am aware that these two observations are controversial. However, here what I really need for my argument regarding a relativisitic view of ancient Confucian China is a weaker claim, which is the following: it was historically impossible for Confucius to have a modern liberal conception of justice in terms of liberties and rights, whereas such a modern liberal conception has become a historical possibility in today’s China.” It seems to be a widely shared intuition that it is not just (fair) t o require Confucius or Aristotle to have a modern liberal conception of justice, which was historically unavailable to them. If one thinks historically, as Hegel does, one will see that i t takes time (history) for e t h c a l ideas to become possible and actual. And, accordingly, a criticism of a n age for not living up to an ideal will remain an empty and impotent “moral” criticism until the ideal, on which the criticism ,is based, becomes histori- caUy possible. One does not have to accept Hegel’s whole controversial philosophy of history t o see this point. Bernard Williams, who has criti- cized Hegel’s redemptive conception of history,16 also shares this intui- tion. He says, 5 2 8 YANG X I A O O n e can define a relativistic view o f justice. There is some pressure, if o n e thinks historically a t all, t o see m o d e r n con- ceptions o f social justice, in terms o f equal rights, for instance, as simply n o t applying to hierarchical societies o f t h e past. T h e obvious fact that those societies would not satisfy t h e conditions I q u o t e d from Rawls in chapter 5 seems relevant neither t o those societies nor to the merits of Rawls’s criteria as proposed f o r m o d e r n societies.” T h e two conditions Williams q u o t e d from Rawls are the famous f u n d a - mentai principles of justice in terms of equal liberties and rights, w h i c h , as Rawls says characterize t h e liberal conception o f j u s t i c e . Notice the term beging used here is “conception,” n o t “concept .” Rawls makes a very important distinction between c o n c e p t i o n and c o n c e p t . the concept of justice is about t h e basic terms of people’s asso- ciation, people m a y disagree a b o u t which specific principle of justices should define t h e basic terms of their association - i.e. t h e y m a y have disagreement a b o u t t h e conception of justice, but t h e y each have a concept of justice, which is abstract and vague sufficiently t o command widespread assent so that it “would act, in public argument as well as private rumination, as a kind of plateau on which further thought and argument are built. As Rawls puts i t , “it seems natural t o think of the concept of justice as distinct from the various conceptions of justice and as being specified b y t h e role which ... [its] different conceptions have in C O ~ O I I . ” ~ ~ So we c a n say that liberals a n d utilitarians have a different conception o f justice, b u t t h e same concept of justice. T h e ancient Confucian society, a hierarchical society of t h e past, clearly does not have these two principles o f justice, which specify the liberal conception of justice. There is t h e n some pressure not t o apply the m o d e r n liberal conceprion of justice to ancient China. Under this pressure of relativistic view of justice, o n e might be easily tempted to. conclude that ancient Confucian China does not even have a concept of justice. I shall call someone a “radical relativist” if s h e believes that J U S T I C E IN C O N F U C I A N ETHICS 5 2 9 hierarchical societies of the past, such as ancient China, d o not even have a concept of justice. It seems clear that, if we want t o see whether Confucians have a concept of justice, the concept of justice we should defme has to be suf- ficiently empty, broad and abstract. That is to say, this concept of justice should be formulated not in terms of particular ideas such as equal rights, which can only be found in a modern liberal conception of justice; it should be a concept that is shared by all the particular conceptions of justice, includmg the very peculiar modern liberal conception of justice. Ill. WHAT IS IT LIKE TO HAVE A CONCEPT OF JUSTICE? In the passage I quoted from Williams in the last section, he argues that there is some truth in a relativistic view of justice and hence there is some pressure to see the “modern conception of justice in terms of equal rights” as simply not applying to hierachical societies of the past. How- ever he also argues that the concept of social justice is “a special case in relation to relativism” and that “Justice and injustice are certainly ethical notions and arguably can be applied to past societies as a whole, even when we understand a good deal about them.”’0 Notice that here what can be applied t o past societies is not the “modern conception of justice in terms of equal rights,” but “justice as ethical notions.” I read what he says as meaning that, although the modern conception of justice in terms of equal rights does not apply to societies of the past, the concept of justice seems to be a non-relatively shared one. That is t o say, Williams is not a radical relativist. This is especially obvious from what he immedi- ately says right after the passage I quoted in the kast section. Yet there are strong pressures for the justice or injustice of past societies not merely to evaporate in the relativism of distance. Even if we refuse to apply to them determinately modern ideas, some conceptions of justice were used in those 5 30 YANC X l A O societies themsehes [my emphasis] and it is not a pun or a linguistic error t o call them that.” However, the issue is not as simple as it sounds. How does one know that the proposition that “some conceptions of justice were used in those societies themselves” is true? The truth of this proposition is exactly what a radical relativist denies. Especially in the cases where the past society had a different language, how d o we know that some concept of justice was used i n that society? It seems that we cannot know it unless we have already translated a certain word in that language as “justice’ or ‘ S U S t . ” Then that would be begging the question. For what a radical relativist denies is exactly the possibility of translating any word in that language as ’justice” or ’just.” 1) the past society was an English-speaking o n e , ii! !he past society was ancient China. Let us further suppose the past society we are concerned with is medieval England, and we find the following sentence written by Shakespeare in 1 6 0 1 . “He was my Friend, faithful, and just to me.” A Radical relativist could insist that, although Shakespeare spoke the same language (English) as we do today, it is only the same language in its linguistic sense, he actually spoke a different “language” in its conceptual sense. He has a totally different set of concepts and categories. A radical relativist may say that “We and Shakespeare d o not even share the same concept of justice.” In this case, Williams could indeed argue convincingly against this radical relativism by saying that Let us consider t w o possible cases. (E) It is not a pun or a linguistic error to call the concept, which is expressed by the word. ‘‘just” Shakespeare used, a concept of justice. However when we move to the second case where the past society is ancient Chma, it seems that Williams’s strategy wouldn t work. For it cannot convince anyone b y saying that JUSTICE 1N C O N F U C l A N ETHICS 531 (C) I t is not a pun or a linguistic error to call the concept of justice used in ancient China “the concept of justice.” It will be tautological to call the concept of x used in society y “the concept of x . ” A radical relativist will not be convinced by this. The statement (C) has already presupposed that there is the concept of justice in ancient China, which is exactly what we want to prove and a radical relativist denies That is t o say, we cannot refute radical relativism at such an abstract level. We have to do a detailed study of how certain words in ancient Chinese are used, and how they are used in what kinds of practices and contexts (e.g., in the practice of accepting gifts). If, through this study, we can manage to show that there are uses, at least some uses, of a certain word - let us call it “c” - in ancient Chinese which are similar to the uses of “just” then, we can say, (C) I t is not a pun or a linguistic error to call the concept, which is expressed by the word “ c ” in ancient Chinese, a concept of justice. More specifically, in order to show that the Chinese character “c” expresses the concept of justice, one has to show that the word “c” is used - at least sometimes - in the same way the word ‘>ust” is used as defined by a formulation of the concept of justice. This is what I am going t o d o in the next section. And, the word “c” will turn out to be the character ‘>yia” which expresses one of the central concepts in Confucian ethics. Notice that it does not require that the word ‘)ia” always behaves like the word ‘?just”. The fact that sometima i t behaves like “just” is enough for proving that there is a concept of justice in ancient China. A parallel case might be helpful here. The Greek term dikaws, as Gregory Vlastos observes, could be used to cover all soclal conduct which is morally right and its sense is thus much broader than ’just.”n Most scholars have translated it as “just.” So does Vlastos. For it is enough 5 3 2 YANC. XIAO that some of its uses are similar to the uses of ‘Tust.” This is also how Rawls argues that his concept of justice can be said to ‘’tally with tradi- tion,” by tradition he means Aristotle’s concept of justice, which is expressed by the Greek term dikaios or d i k ~ i o s y n 2 . ~ ~ Before we move to the next section, where we will figure o u t the condition under which Confucius and Mencius would use y i a , the last tool we need is a formulation of the concept of justice, which shows under what condition we will use the term “just.” Then we will be able to compare this condition with the condition under which Confucius and Mencius use the word “pa”. I would like to propose two formulations of a working concept of justice and 1 shall show that the second one is appropriate for our purpose in this paper. The first one is a modified formulation that is found in Rawls’s later work Political Liberalism, which is different in many respects from his early work A Theory ofJustice. However, the distinction between concept and conception is still there; he says in Political Liberalism, This pair [of concept and conception] is distinguished as they were in Theory, pp. 5f. Roughly, the concept is the meaning of a term, while a particular conct!ption includes as well the principles required to apply it. ... People can agree on the meaning of the concept of justice and still be at odds, since they affirm different principles and standards for deciding those matter^."'^ What he means by *those matters” is, as he puts i t , to make “distinctions between persons in assigning bcsic rights and duties, ...[ And to establish] proper balance between competing claims’’ (ibid, my emphasis). This formulation is not broadly framed, because it is still formulated in terms of basic rights which can only be found in the modern liberal conception of justice. Nevertheless, I think, Rawls’s concept of justice need n o t be so narrowly defined. What is being assigned need n o t be *basic rights and duties;” let us modify it by replacing them by “things,” which can be JUSTICE IN CONFUCIAN ETHICS 5 3 3 a variety of things, such as wealth and rank, profits, a wife,2s respect, honor, and so on. Another problem with Rawls’s concept is that it seems t o pre- suppose the existence of a nationstate or the “basic structure” of a nation- state because he sometimes also says that the concept of justice is about the basic terms in which citizens of a nation-state design their basic structure. Formulated in this way, the concept of justice would apply only to the basic structure, not to actions and persons. But we need a concept of justice that can apply t o basic structures (or institutions) and actions and persons as well. J6 The second formulation, which is the one I am going t o use in this paper, is form H.L.A.Hart. In fact, Rawls borrows the distinction between concept/conception from Hart.” But it seems that h e does not notice that Hart’s formulation is a broader one. According t o Hart, “justice is traditionally thought of as maintaining or restoring a balance o r propor- tion, and its leading precept is often formulated as T r e a t like cases alike’; though we need t o add to the latter ‘and treat different cases differently:” And this ‘‘traditional precept” is a “concept” of justice, not a “conception” of justice. Hart says, [Tlhough ‘Treat like cases alike and different cases differently’ is a central element in the idea of justice, it is by itself incomplete and, until supplemented, cannot afford any determinate guide t o conduct. This is so because any set of human beings [ o r s i t ~ a t i o n s ] ~ ~ will resemble each other in some respects and differ from each other in others and, until it is established what resemblance and differences are relevant, ‘Treat like cases alike’ must remain an empty We can ask whether a person treats like cases alike and different cases differently, or whether anaction is conducted in such a way that like cases are treated alike and different cases differently. Formulated in this way, the concept of justice can apply t o actions, persons, etc, not just t o the 5 34 YANC X l A O basic structure of a society. I also want t o express this formulation in a different version, which will be proved t o be more useful in the next section. Hart’s version is the following: (J) To be just is t o treat like cases alike and different cases differently. One may also say that those like cases form a “kind” (the Chinese charac- ter: lei”) and that different cases belong t o different “kinds” therefore, (J) can also be expressed as follows: (J) To be just is t o treat cases that belong t o the same kind alike and cases that belong t o different kinds differently. Obviously, this is a concept of justice, because it remains an empty form until it is established, by a particular conception of justice, which could be a system of classifications telling us specifically what cases form the same kind (leim) and what cases belong t o different kinds. In the next section, I am going to show that the concept expressed by the term yia in Confucian ethics is a concept of justice. More specific, in order to prove this, what we need t o find is the following: (Y) To be yia is t o treat like cases alike and different cases differently. Or t o formulated in terms of kinds (leim), (Y’)To be yia is t o treat cases that belong t o the same kind (leim) alike and cases that belong to different kinds differently. JUSTICE IN CONFUCIAN ETHICS 5 35 IV. TEXTUAL ANALYSIS: HOW Yp IS USED IN CONFUCIUS AND MENCIUS The character yia occurs twenty-four times in the Analects, one hundred and eight times in the Mencius. Its uses are diverse. Ch’en Ta- &’in a contemporary scholar of Confucianism, once i n a paper classified the uses of yia in the Mencius into four kinds: 1) self-regarding morality 2) others-regarding morality; 3) norms of values; 4) principles of human affairs. In a book published later, he criticized himself for making a farfetched classification of the uses of ria. In the end he has given up this classification. What he later did was t o put together similar uses of the word in the text without imposing his own classification system. What came out was an amazing classification: a ) y i a of respecting the elderly and obeying the elder brothers, b) yia between the ruler and the ministers; c) yia that has t o d o with taking and giving; d) yia of the heartlmind of shame, e) y i that is said t o be the human path or way f ) yia that conflicts with profits, g) yia that is said t o be internal; h) yia that is said t o be common yia of the world.30 And this list can go o n and on. What should we make out of this? How should we explain such a bizarre classification? How is it possible t o use one word t o cover so many different uses? Fortunately, here we d o not need t o answer these questions. It may be that there is a common thread underlying all these diverse uses; or the uses have no thread running through but only a “family resemblance,” or, another interpretation is that Mencius’s use of the word is simply another particular case of the “oriental way of thinking and classifying” which is always exotically chaotic and incoherent.” As I said earlier, for my purpose in this paper, it would be sufficient if I can show that some uses of yza satisfy the formulation (Y) or (Y)’. There- fore, I will just focus on one group of uses of yia that has to d o with taking, having or accepting things (group c) above.” Confucius says that one of the three characteristics of a complete person is that the complete person t h i n k s about ria at the moment of 5 36 Y A N C XlAO having profit (14.12). At two places, Confucius says that a chiin-tzib would think about yia a t the moment of gaining something (19.1 and 16 10). In the Analects and the Mencius, the objects that can be taken, gained and accepted could be a variety of things: wealth and rank (7.16, 4.5), profit (14.12), a state (7A:34), the tyrant o f a state (3B:5), the office of minister (5A.8), a wife (6B.1), food (6B:l) a present of a hundred yi of gold of superior quality (2B:3), the Empire (3B:4), a basketful of rice (3B:4). Let g be any one of the things listed above. In all the above cases, Con- fucius and Mencius claim that one should always ask “Is it yia t o take Cpain, accept) g ? rr33 If we say that, for Confucius and Mencius, yia is the principle for taking, gaining and accepting things, we have t o qualify it by adding a lot of warnings.” One of them is the following: the principle” of yia does not have the form of what I shall call “strictly universal principle.” Here are some examples of strictly universal principles: ( U , ) It is always just or right to takeg. (Or, ‘Always takeg.’? ( U , ) It is always just or right not t o take g. (Or, “Always d o not take g.”) I shall call someone a “strict universalist” if she believes that a principle of justice must take the form of a strictly universal principle - i.e., a principle of justice can only take either the form ( U , ) or the form (LIZ). For a strict universalist, one cannot say, “It is just (or right) at rime t to take g.” For it does not make sense t o say that something is just (right) at one particular time; it is either always right or always wrong - this is the strictly universal “grammar” of the term “just” or “right”. That is t o say, for strict universalism, a principle of justice cannot have the following form: JUSTICE IN CONFUCIAN ETHICS 5 37 (P) It is sometimes right or just, and sometimes not, t o take g . I shall call those “particularists” who think that the principle of justice should take the form of (P) Let us assume someone accepts a gift or present at time t l and refuses a present a t time t2 For a strict universalist, if she is just t o accept a present at t , then, she must be unjust at t 2 . All the cases of gift-taking, regardless of what a particular circumstance a case is in, form one homo- genous kind, and all cases of gift-taking thus must be treated alike. One only has two options: i) either t o accept all the gifts, regardless of who offers, when they are offered, in what manner they are offered, what particular situation one is in; or, ii) to refuse all the gifts, regardless of who offers, when they are offered, in what manner they are offered, what particular situation one is in. Accordindy, strict universalism can also be expressed as follows, (U)’ All cases of gift-taking form one homogeneous kind and should be treated alike. That is t o say, for a strict universalist, a principle of justice cannot have the following form: (P)’ Some cases of gift-taking form a kind, and some cases of gift-taking form a different kind. The cases belonging t o the same kind should be treated alike and the cases belonging t o a different kind should be treated dif- ferently. Notice that both strict universalism (U)’ and particularism (F‘)’ share the idea that cases belonging t o the same kind should be treated alike and cases belonging t o different kinds should be treated differently. That is to say, they share the same concept ofjustice. But since they have totally different particular ideas about what caes belong t o which kind, they have 5 38 YANG X l A O different conceptions of justice. I now want to show that the debate between Ch’en Chen‘ and Mencius in 2B:3 is actually a debate between a strict universalist and a particularist. Ch’en Chen‘, according t o Chao Ch’is, is one of Mencius’s disciple^.^' He seems to be a strict universalist. He somehow believes that the principle of accepting gifts should be either “Always accept gifts” or “Always d o not accept gdts.” He once asks Mencius: T h e other day in Ch’i you refused t o accept a present of a hundred yi of gold from the King, but in Sung you accepted a present of seventy yi in Hsiieh you likewise accepted fifty yi. And, Ch’en Cen‘ objects to Mencius’s actions by saying that, If your refusing t h e gift in the first case was right, your accepting in the latter cases must be wrong;on the other hand, if your accepting in the latter case was right, your refusing in the first case must be wrong. You cannot escape one or the other of these two alternatives. (2B:3) To put his point in other words: You have treated cases of gift-taking differently; you should have had one single universal way t o treat all cases of gift-taking. For either it is always right to accept gifts or it is always wrong t o accept gifts. One only has these two alternatives, there cannot be a third alternative, which is that it is sometimes right and sometimes wrong to accept gifts. And, this is exactly what Mencius denies in his answer to Ch’en Chen‘ In 2B:3, Mencius is recorded as replying t o Ch’en Chen‘ in the following way. He says, “Both my refusal and acceptance were right.” Then he goes o n to give his explanations about how the latter t w o cases are similar and hence are treated alike and how the first case is different from t h e two cases and hence is rightly (‘justly) treated in a way different from the two cases. W h a t he does is t o treat similar like cases alike, and different cases differently. Mencius, like Confucius, has n o absolute yes or absolute no (wu-ko-wu-pu-kou) regarding what is t o be done JUSTICE IN CONFUCIAN ETHICS 5 3 9 (18.18). He is not invariably for o r against anything he does what is appropriate. Mencius can be perfectly characterized b y Confucius’s fol- lowing saying,“chiin-fzub is not invariably for or against anything. He just does what is yra.” (4.10) So it seems that yia does satisfy the formu- lation (Y).= When Mencius left Ch’i, on the way Ch’ung Yuv, a disciple, asked: Master, you look somewhat unhappy. I heard from you the other day the principle that “Chiin-fzu reproaches neither Heaven nor man.”’ Mencius answered, ‘This is one time (shihw); that was another time (shihW)” (2B: 13). The concrete applications of the Confucian general principle b “Chiin-tzu reproaches neither Heaven nor man” thus vary from time t o time. In fact, Mencius calls Confucius ’the sage of shihw” (the sage whose actions are timely) (5B: 1). By this, Mencius means that “He was the sort of man who, when it was proper to hasten his departure, hastened his departure, when it was proper t o delay it, delayed it when it was proper t o remain in the state, remained in the state, when it was proper t o take office, took office, all according t o circumstances” ( S B : I , also see 2 A : 2 ) . Let me end this section with one of m y favorite anecdotes in the Analects, which is another good example t o illustrate the Confucian concept of ria. Confucius was once being asked by two of his disciples the same question: “Should one immediately put into practice what one has learned? ” The Master gave totally different answers. T o student Tzu-lu, it was “As your father and elder brothers are still alive, you are hardly in a position t o put immediately into practice what you have learned.” To another student Jan Yu, the answer was simply “Yes. One should.” When the master was asked why his answers were different, he replied, “Jan Yu holds himself back. It is for this reason that I tried t o urge him on. Tzu-lu has the energy of two men. It is for this reason that I tried t o hold him back” (1 1.22). What the anecdote shows is that Confucius is extremely sensitive t o the richness and complexity of the particular. He cultivates people who have different particular characters in different ways. He refuses t o insist b 5 40 YANG X l A O o n absoluteness, refuses t o be inflexible (see 9.4). For Confucius, chin- tzu must have the sensibility t o the particular, t o the richenss and com- plexity o f the particular. The above anecdote is a perfect example to illustrate what exactly Confucius means in the passage I cited as a m o t t o for this paper (4.10). Confucius is not generally (abstractly) for the general rule “Put into practice immediately what one has learned”; nor is he generally (abstractly) against the general rule. His sensibility to the particular makes him distrust any of this kind of general rules. In certain concrete situations he is “concretely” for it and in certain situations “concretely” against it; it all depends o n particular situations. For Con- fucius no general rule can cover each and every unique particular case. If someone invariably sticks t o a general rule, he does not haveyia. There- fore, yia is not only a sensibility; it also has t o be a capacity for judging what is appropriate t o d o in particular situations. As Chung-ying Cheng puts it, “A man of y i a , therefore, must be a man of creative insights who is able t o make appropriate moral judgements in particular situations, judgements which will preserve t h e totality of goodness and j ~ s t i c e . ” ~ ’ b V. TRYING TO DO JUSTICE T O THE PARTICULAR Now let me turn to the particular issue concerning the possibility of doing justice t o the concept of justice in Confucian ethics I mentioned in the introduction. Armed with the Confucian spirit of justice, I think that we may be able t o try t o d o justice t o this particular issue and give a Confucian justification for what we have been doing in this paper. The same issue will arise if I were t o write a paper o n some other topics, say, “the concept of God in Confucian ethics,” or “the concept of individual rights in Confucian ethics,” etc. The list can be endless. So it seems that the question ‘Can we do justice t o the concept of justice in Confucian ethics? ” is just a particular case of a general question of “Can we even talk about Confucian ethics in English without doing injustice to it” or “Can we talk about one culture (or language) in terms of cate- JUSTICE IN CONFUCIAN ETHICS 5 4 1 gories of another different culture (or language) without doing injustice t o it.” One may thus be tempted t o say that we should first solve the general question, Which has to do with translation, interpretation, language and cultural relativism, and then apply tit to our particular case concerning the concept of justice. However, from Confucius, we have learned not t o “cling t o any generality that is independent of concrete reality.”36 With the help from Confucius, we should try t o resist the temptation t o see the whole issue in this way. Confucius and Mencius help us to see that this approach does not do justice t o t h e particular. For it rules out the possibility that all the particular cases, like the gifts offered to Mencius, might not form a homogeneous kind; and, therefore, each of them requires a different treatment. As Confucians have insisted, there might be no abstract genera- lity that can cover each and every particular case. What one can say about “the concept of individual rights in Confucian ethics” may not apply t o “the concept of justice in Confucian ethics.” Nevertheless, it is not easy t o resist the temptation. One may be attracted t o the following approach: one starts with a general theory of language and interpretation, claiming that two languages, in general, can never be translated into each other without doing injustice (or violence) to each of them. The second step is t o apply this general theory t o the particular case of the English term “justice,” concluding that one can never do justice t o the concept of justice in Chinese ethics if one talks about it in English. To utter the English sentence “I am doing justice t o the concept o f justice in Confucian ethics,” according t o this general view of language, would be a performative contradiction. I have argued else- where that this general view of language is problematic, so I will not address the issue here.’9 In fact, 1 do not even need to determine whether this general view is correct. Whether it is correct is irrelevant here. The point is not about the general view itself, but rather, about the approach of solving our problem by regarding it as a particular case of a general view. Another seductive approach is similar in this regard; the difference 5 4 2 YANC X l A O is just that the first step is to decide whether cultural relativism, another general theory, is correct. If it is correct, b y application, we automatical- ly know the answer is ‘‘no” to our particular question “Can we talk about the concept of justice in Confucian ethics in Western-influenced language? ” In the 1970s and ~ O S , there had been a debate about relativism in the English-speaking world?’ It is a vice of the debate that it often remained a t the abstract level. People argued whether relativism in general is true o r false by appealing to some more general theory of language o r theory of understanding (or theory of practice). One can often find discussions conducted in the following abstract way: one assumes two cultures o r languages, A and B, and then, based on some general theory of culture or language, one proceeds t o draw the conclusion that A and B are radically different (‘or similar). Confucius and Mencius, had they known this, would wonder how one can ever know, in such a general way, whether two such abstract things are alike or radically different. In this kind of discussion, a possibility, which particularists are very sensitive t o but strict universalists are not even aware of, was ruled out u priori. The possibility is the following: perhaps two concrete cultures, say, ancient Chinese and ancient Greek are very much alike, whereas ancient Chinese and modern Western cultures are radically different. And, these have to be determined by detailed studies of the two cultures involved. No one in the debate addressed the question at a concrete level, or dealt with any particular cultures or particular concepts in particular cultures. It is their belief that after they get the answer at the general level by philosophical speculation, they can just apply it to the particular cases. However, it should be the other. way around. We should not start with the general questions, but rather, with the particular cultures and particular concept^.^' We must try to d o justice t o the particular and treat different cases differently. Whenever someone talks about cultural relativism, ask him/her ‘With respect to which particular cultures? ” “With respect to which particular concept? ” What follows then should be detailed analysis and comparison of the particular concepts of these 5 4 3 JUSTICE I N CONFUCIAN ETHICS two concrete cultures. This step is unavoidable. Justice requires it?' GRADUATE FACULTY, NEW SCHOOL FOR SOCIAL RESEARCH NOTES 1. This is a much revised version of a paper presented at a panel, organized b y International Society of Chinese Philosophy, on "Confucian Views of Justice" at t h e Eastern Division Meeting, American Philosophical Association (Atlanta, December 2 8 , 1996). I am very grateful t o m y commentator Prof. Chung- ying Cheng for this very helpful comments, which called m y attention t o t h e diversity of uses of t h e term yia in Confucius and Mencius, which led m e to revise t h e paper. I hope Prof. Cheng will agree for t h e better. I have also benefitted from comments by participants a t t h e meeting thanks especially t o Deborah Achtenberg. Xunwu Chen, Lik Kuen Tong. 1 am particularly grateful for Prof. Kwong-loi Shun for taking t h e time t o read t h e early version presented at APA; his comments and critique have helped me to realize that t h e part on t h e relation between Confucian justice and self was not satisfac- tory. I d o not include that part in this version of t h e paper. 1 am indebted t o Prof. Richard Bernstein for teaching me the importance and, perhaps, more importantly, the elusiveness, of phronesis as sensibility to the particular, in a seminar on Gadamer's hermeneutics. I am also grateful t o Ann Dobbs for a conversation with her on Pascal's view on t h e impossibility of justice, which inspired m e t o further revise the paper. Thanks, finally, t o D.D Sun, without whose support, advice, and sense of justice I would n o t have finished this paper 2 . T h e Chinese term chun-rzub has been translated as "the gentleman" "the virtuous man." These patriarchal terms are closer t o t h e actual meanmg. Grammatically speaking, the Chinese characters themselves d o not have gender, but it is clear that by chun-tzu Confucius meant male officials and gentlemen. However, Wte Aristotle's views of justice, Confucian views of justice can still b e useful today. Therefore, I also often try t o include women b YANC XIAO 5 44 3. 4 . 5 . in m y translations b y using terms like "person"; i t is not designed t o cover u p Confucians' injustice t o women. Deborah Achtenberg has convincingly argued that feminist ethics can find resources in Aristotle, w h o is, as she p u t s it, "a paradigmatically sexist thinker," see her "Aristotelian resources for femi- nist thinking," in Feminism and Ancient Philosophy, e d . Julie K. Ward (New York: Routledge, 1996) pp. 95-1 17. Similar arguments can be made with regard t o Confucianism and feminist thinking. It is doing justice t o Confucia- nism if w e are sensitive to its potential uses and possible developments. All quotations from t h e Anulects are t o book and passage numbers in Lun- yu i-chuc, tr. Yung Po-chin (Beijing: Qlung-hua shu-chi, 1980). For example, (7.3) means ' Book 7 Passage 3." I have consulted English transla- tions by D.C Lau, James Legge and Arthur Waley. All q u o t a t i o n s from t h e Mencius are t o book and passage numbers (with book numbers 1A-79 sub- stituted for number 1-14) in Meng-tzu i-chue, tr. Yung P o x h i n d (Beijing: Chung-huu shu-chi, 1 9 8 4 ) For example, (2B: 3) means "Book 2 Passage 3." I have consulted English translations by D.C. Lau, James Legge. Since the references from the Analects and t h e Mencius have different forms, the former having t h e form (7.3) t h e latter (2B:3), I will not indicate t h e Anulects or the Mencius each time. In this paper I shall only focus o n the primary texts, the Analects and t h e Mencius. We find "chen&" and "yia" in t h e Analects and the Mencius, b u t not "cheng y i f . ' * Hsun Tzui is probably the first one who put the two characters together, for example, in chapter 1 3 "On the way of Ministers," Hsin Tzui says, "A tradition expresses my point: 'One should follow t h e Way and not follow the lord.' Thus, if ministers w h o are upright and just ( c h e n g y i ' ) are given posi- tions, then partiality will not characterize t h e court." Hsun-rzui ( 1 3 / 1 9 - 2 0 ) . All references are t o chapter and line number in the H Y ed. I use J o h n Kno- block's three volume translation, Xunzi: A Trunslurion and Study of the Complete Works, vol. 11 (Stanford: Stanford University Press, 1990), p. 2 0 0 . d 6 . "The Idea of Social justice in Ancient China," in Sociul justice in rhe Ancienf World, e d . K . D . Irani and Morris Silver (Westport? Greenwood Press, 1 9 9 5 ) . p. 125. 5 4s JUSTICE 1N CONFUCIAN ETHICS 7. 8 . 9 . 10 'Confucian Justice: Achieving a Humane Society," Infernutionul Philosophi- cal Quurterly, Vol. X X X , No. I , March 1990, p. 17. '*Confucian justice," p. 17. However, Heiner Roetz, a German sinologist, has translated y f consistently a s justice, see Heiner Roetz, Confucian Ethics of the Axiul Age (Albany: S t a t e University of New York Press, 1993). But t h e book was published after Peerenboom's 1 9 9 0 paper from which this passage was cited. Nevertheless, in his excellent three volume translation of Xunzi (Hsiin Tzui), J o h n Knoblock has consistently translated yia as justice or social justice. T h e first volume was published in 1988 see Xunzi: A Tmnslu- tion and Study of the Complete Works, vol. 1 (Stanford: Stanford University Press, 1988). Peerenboom notices that yia in Hsun Tzui has been o f t e n trans- lated as justice. But he insists that justice may very well b e the most appro- priate translation of yia for Hsun Tzu', b u t n o t for Confucius. T h e question, as he says, then becomes w h a t this tells us a b o u t the difference between t h e philosophy of Hsun Tzui and that of Confucius (ibid., p. 1 7 ) . I shall deal with this question elsewhere. Here let me just say t h a t we have to make t h e distinc- tion between concept and conception, which 1'11 introduce soon, it may be a fact that Hsun Tzu' and Confucius have different conceptions of y? (the difference between their philosophies). b u t this fact should not b e confused with a different claim that they d o n o t even share the same concept ofyia. As I said, I shall deal with the question a b o u t the difference between Hsun Tzul's and Confucius's conceptions of justice elsewhere, Both Lee and Peerenboom carefully avoid drawing such a conclusion. After the passages I cited above, they immediately a d d , respectively, "Practically all discussions that have bearing on t h e issue of justice or social justice are found in the Chinese articulations o n a moral philosophy of political or social order" (Lee, p. 1 2 6 ) . a n d . ' T h i s is not to say that Confucius was not concerned with issues which fall under the rubric of justice understood in a broad sense" (Peerenboom, p. 17) As Amartya Sen puts it, "it is not even clear t o me that Confucius is entirely more authoritarian than Plato or S t . Augustine. I t is true, of course, that many - though n o t all - of the exponents of justice or tolerance or freedom in Asian classical literature tended t o restrict t h e domain of concern to some . . 5 46 YANG XlAO 11. 12. 13. 14. people, excluding others, but that is also true of the ancient West. Aristotle’s exclusion of women and slaves does not make his works on freedom and justice irrelevant to the present-day world We have to see the origin and exposition of ideas in terms of their factored components.” (“Humanity and Citizenship” in For Love of Counny: Debating the Limits of htriotism, ed. Joshua Cohen (Boston: Beacon Press, 1996), p. 118). The sentence “today’s China can be called a Confucian country” is a contro- versial statement I am not making that statement here; what I am making here is a different, conditional one: Given that doday’s China can be called a Confucian country. Governmental spokesmen of several Asian countries such as China and Singa- pore - for example, in the Vienna conference of 1993, to dispute the relevance of human rights in Asia - often make such arguments based on the confusion. This fact is often overlooked or underestimated by Westerners. Here 1 shall only mentioned two examples, one being extremely well-known and one being unknown (especially to outsiders). Let me start with the latter. Since 1988 there has been a “rights-based law movement” in mainland China. I t started with a debate on “What is the basis of law: rights or duty? ” at the First National Conference on Basic Legal Categories held in June 1988. Since then (and even after 1989), there have been many articles focusing on the issue published in magazines and newspapers. The movement criticizes China’s “state-based’’ “duty-based” conaption of law and its te, lency to “one- sidedly emphasize duty.” One of the major spokespersons of the movement says that “individual rights are the basis and goal of the existence of other rights” and that “only a government that takes citizens’ rights seriously can have people’s trust, respect, and obedience to the law. Only a rights-based theory of law can satisfy this need.” This movement is not just an intellectual movement. It is a reflection of the change of Contemporary political-legal culture and popular culture in today’s China. I t also prepared the atmosphere for the 1989 Prodemocratic movement, which is, of course, a much well- known example. 1 have given an argument for this claim in a paper in Chinese: “Rawls’s k Theory of Civil Disobedience and its Chinese version,” Zhe-me ping-lun JUSTICE IN CONFUCIAN ETHICS 547 15. 16. 1 7 . 18. 19. 20. 21. 2 2 . 23. 24. 25. 26. (China Philosophical Review), voL 1, no. 1, (Beijing: Zhongguo-she-huike- x u e Publish House, 1993). (This journal is t h e first independent philosophy journal in China since 1949.) Also see He Huaihong's."On t h e translation of I 'civil disobedience': a reply t o Xiao Yang's critique," Zhong-gueshu-ping (China Book Review), No. 2 , 1994. This j o u r n a l is published in Hong Kong b u t is also distributed in mainland China. I have given a m o r e detailed argument for this claim in "Hegel's t h e o i y of t h e state and civil disobedience," a paper presented in Prof. Agnes Heller's seminar o n Hegel's Philosophy of Right at t h e New School for Social Research in 1994. T h e basic idea is t h a t , since the m o d e r n liberal conception of justice, and that of citizenship, have become historically possible, and even actual in Hegel's sense, in today's China, civil disobedience can t h u s b e justified. See his Shame and Necessity. (Berkeley: University of California Press, 1 9 9 3 ) ; see, for example, p. 166. Ethics and the Limits of Philosophy, (Cambridge: Harvard University Press, 1985), p. 165. Also see his easy ' T h e T r u t h in relativism" in Moral Luck. (Cambridge: Cambridge University Press, 1 9 8 1 ) , pp. 132-143. These words are Ronald Dworkin's, Law's Empire, (Cambrdige: Harvard Uni- versity Press, 1986). p. 7 0 . He also gives a more articulated account of the distinction, see especially pp. 46-53, 70-76. A Theory o f h s r i c e . (Cambridge: Harvard University Press, 197 I ) , p. 5 . Ethics and the Limits o f Philosophy. p. 1 6 5 . Ethicsand the Limits o f P h i l o s o p h y , pp. 1 6 5 6 . Gregory Vlastos, "Justice and Happiness in t h e Republic': Pluto: A Collection of Critical Essayr, vol. 11, ed. Gregory Vlastos (Notre Dame: University of Notre Dame Press, 1978), p. 66. A Theory of Justice. pp. 10-1 1. Political Liberalism, papcrback, (New York: Columbia University Press, 1 9 9 6 ) . p. 14, n. 15. I intentionally include "a wife," so this formulation cf the concept o f j u s t i c e will be broad enough to be also shared by a sexist conception of justice; see (6B: 1 ) in the Mencius Neverthelss, it seems that Rawls would agree that a concept of justice need 548 YANG XIAO not have these features. At o n e point, h e says that Aristotle's definition of justice is framed t o apply t o actions and persons, whereas t h e definition of justice he a d o p t s "is designed t o apply directly t o the m o s t important case, the justice of t h e basic structure." But, right after this, he says, ' T h e r e is n o conflict with t h e traditional notion." T h e term "notion" here obviously means "concept." T o p u t it in other words, Rawls and Aristotle share t h e same concept or n o t i o n o f justice; see A Theory of Iwn'ce, p. 11. 1 shall n o t use t h e modified formulation of Rawls s in this paper. However, it will b e a very useful o n e when w e want to know w h a t A r u t o t l e or Confucius would say a b o u t t h e basic structure of a society and whether their views of justice are comparable with liberalism. Rawls acknowledges this, see A Theory ofJurtice, p. 5 . "Cases" d o n o t have t o b e limited t o 'human beings", so I add "situations" t o make t h e concept a really broad one. The Concept o f k w . (Oxford. Oxford University Press, 196 I ) , p. 1 5 5 . Mengrzu fui.chieh-luo (Taipei: T'ai-wan shang-wu yin-shu-kuan, 1 9 8 0 ) , pp. 2 1 . 2 8 . 29. 30. 4168. 31. For those w h o believe in the last option, this classification very likely would remind them of a passage in Jorge Luis Borges, which later has become well- known since Michel Foucault started his book The Order of Things with this passage and claimed t h a t his book first arose o u t of it. This passage q u o t e s a certain Chinese encyclopedia in which it is written that animals a r e classified into: a) belonging t o t h e Emperor, b ) embalmed, c) t a m e , d ) sucking pigs, e) sirens, f) fabulous, g) stray dogs, h) included in the present classification, i ) frenzied, j) innumerable, k) drawn with a very fine Lamelhair brush, I ) et ceferu, m ) having just broken the water pitcher, n) that from a long way off look like fhes. Like o t h e r things about China Borges "describes" in his short stories, this o n e is also his invention. Foucault w a n t s to use this exotic inven- tion of classic China for purposes that have to d o with challenging Western classifications. This raises complicated issues, such as, whether it is doing justice t o classic China when the invention in its name is being used as means for ends other than furthering better and more' balanced understandings of classic China. But I can t go into these issues here. JUSTICE IN CONFUCIAN ETHICS 5 4 9 32. For a detailed analysis of t h e other uses of via, such a s those that have to d o with t h e sense of honor and shame, and t h a t have to d o with ria as being internal, see Kwong-loi Shun, Mencius und Early Chinese Thoughf (Stunford: Stanford University Press, 1997). There is a tension between yia as being internal and ria as being just to the particular. It is almost impossible t o hold these t w o uses together. I shall try t o show how Mencius does i t elsewhere. Except in 3B:4 and 4.5, where Mencius and Confucius d o n o t use yia b u t toop instead. What they ask is: “Is it in accordance with toop ( t h e way or principle) to t a k e g?” However, toop and yia are tightly related and probably refer to the same thing. In 7.16 and 4.5, Confucius uses ya a n d tuop in a similar way: each eta in 7.16 and mop in 4.5) is said to b e a principle accor- ding t o which o n e determines whether o n e should t a k e or gain wealth and rank. More importantly, for Mencius and Confucius, t h e metaphor for yia is always tuop ( “ t h e way” or “path”) see 5 A : 7 , 4A.10, 6 A : l l , 7A:33, 4B:2. In fact. with regard t o Mencius’s saying in 4B:2, “ [ T h e great m a n ] walks in the great tuop of t h e world,” Chu Hsiq makes the following comment: ‘“The great tuop isyia.*’ Here I follow Chung-ying Cheng (“On ria as a universal principle of specific application in Confucian morality,” in his New Dimensions of Confuciunisrn a n d Neo-Confuciun Philosophy, Albany: S t a t e University of New York Press, 1991, pp. 2 3 3 4 5 ) , and David L. Hall and Roger T. Ames (Thinking Through Confucius, Albany: State University of New Y o r k Press, 1987, pp. 101-2). However, 1 think that Hall and Ames have gone too far in saying that we should n o t use t h e term “principle o/yia” at all; their reason is the following: “More o f t e n t h a n not. this entails t h e assumption, tacit or explicit, that such principles are transcendently grounded” (p. 101). B u t , as the phrase “more often than n o t ” alsoindicates, to use the term “principle” does n o t necessarily entail t h e assumption, just like the term “justice” does not necessarily entail t h e conception o f equal rights. From t h e nature o f confrontation between him and Mencius in other passages (7B:23 we may also include 2B:lO and 5B: 14, if we agree w i t h Chao Ch’is that Ch’en Tzu’ in these two passages is Ch’en Chen’), I suspect that he is probably not Mencius’s disciple. Especially, judged from his position, very 33. 34 35. 550 YANG XlAO likely he is a Mohist. Or, if he is a disciple, he is, a t least, influenced by Mohism’s universalism regarding the principle of ria; also see my next note. Here I do not have space to show that it also satisfiesanother version of (Y), i.e., (Y) which is formulated in terms of leim (see my section 111 above). In fact, it is not difficult to show that this is the case. In 3B:lO and 5B 4 , Mencius himself speaks of ya in terms of leim. The way to understand these passages is that we must take seriously the fact that the debate recorded in these passages is a debate between Mencius and Mohists and that they use the logical term leim in the way it is used in Mohist logical texts, which is available to us. This is crucial, because Mencius does not leave us any logical text, although he appears to be very good at it. It seems that leim is a logical term commonly used by Mohists, Mencius and other carlier thinkers (e.g., Hsin Tzu’). This paper is part of a larger project which will show that the Mencius as a whole can be better understood within the framework sketched in this paper. Some very difficult passages. such as3B:lO,SB:4,2B:8,7B:2, 1B:8, 3 8 5 , etc. in the Menchrs can be better interpreted. The project also shows that yia is used in the way sketched here in other early Chinese texts. New Dimensions of Confucian and Neo-Confucian Philosophy (Albany: State University of New York Press, 19911, p. 236. New Dimensions of Confucian and Neo-Confucian Philosophy. pp. 236-1. Derrida seems to be endorsing such a general view, for a critique of it, see my paper “Justice and Interpretation: A Wittgensteinian critique of Derrida’s Force of Law”’, which was presented in Prof. Albrecht Wellmer and Prof. Ruth Sonderegger’s seminar ’Toward a critique of Hermeneutic reason’’ at the New School for Social Research in 1995. Derrida’s essay was first publish- ed in Cardozo Luw Review, vol. 11, 1990. It was reprinted in Deconstruction und rhe Possibiliry of Jusn’ce, ed. Drucilla Cornell, Michel Rosenfeld and David Gray Carlson (New York Routledge, 1992). Some of the important papers on the issue can be found in Rufionulify and Relufivisrn, ed. Martin Hollis and Steven Lukes (Oxford: Blackwell, 1982). There are also quite a few books on the issue the literature is massive. I owe this point to Prof. Richard Bernstein. 1 am also grateful to him for encouraging me to explore the issue in Confucian ethics. As he pointed out 36. 31. 38. 39. 40. 41. JUSTICE IN CONFUCIAN ETHICS 55 1 to m e in an unforgettable conversation, t h e debate about relativism has to move to the particular level; and, furthermore, every move is predictable o r has already been made at t h e abstract level. However, I am also aware that these claims are still abstract. T h e slogan “Do justice t o t h e particular,” like all the other slogans such as “Putting immedi- ately into practice what o n e has learned,” i s j u s t another general, abstract and empty rule. T h e slogan can push people t o t h e opposite of w h a t it says. It can negates itself and be carried to extreme - that is, a n abstract relativism, which, for example, may claim that Chinese culture, as a particular, is totally different from Western culture and cannot b e characterized by a n y Western categories. What David Nivison says a b o u t the virtue of “moderation” or t h e “mean” also applies t o t h e virtue of “justice” o r “sensibility to t h e p a r t i c u k r ” . ‘It would seem that if w e give t h e notion of t h e mean any posi- tive content, w e can imagine a situation in which it negates itself, at a higher (or lower) level: even moderation can be carried to extremes.” (“Replies and Comments,” in Chinese Lonyage, Thought, and Culture: Nivison and his Cn’dcr, e d . Philip 1. Ivanhoe, Chicago: Open Court, 1996, p. 291). 42. CHINESE GL OSSAR Y 
work_jlpk7rha3bfkdlxceazqez5ga4	----	Procedural Justice as Autonomy Regulation Jan-Willem van Prooijen VU University Amsterdam The present research investigated the relation between autonomy (i.e., freedom of choice) and procedural justice. Three studies tested the hypothesis that people would be particularly sensitive to the fairness of decision-making procedures when they experience deprivation of autonomy needs. Study 1 indicated that procedural justice judgments indeed were influenced more strongly by variations in decision-making procedures among participants who experienced little autonomy in their life. In Study 2, these findings were conceptually replicated by manipulating whether participants were provided with choice on an issue that was unrelated to the outcomes of the subsequent decision-making process. Study 3 revealed evidence for the hypothesis in a field setting. It is concluded that procedural justice is functional to regulate basic autonomy needs. Keywords: procedural justice, autonomy, self-determination, fairness, basic psychological needs In contemporary democratic societies, freedom of choice is considered to be an invaluable aspect of human well-being. People desire a sense of freedom in virtually all life domains and resent the feeling of being pressured into unwanted thoughts or behav- iors. The extent to which people feel free to make their own choices and experience a sense of volition in their actions is referred to as people’s sense of autonomy. Autonomy is a central construct in self-determination theory, which has emphasized the beneficial consequences of experiencing freedom of choice on various dimensions (Deci & Ryan, 1985, 2000). This theory asserts that autonomy is one of the three most basic psychological needs, the other two needs being relatedness (cf. Baumeister & Leary, 1995) and competence (Sheldon, Ryan, & Reis, 1996). These needs are defined as innate psychological necessities that must be satisfied to ensure ongoing mental health, psychological growth, and optimal functioning. In correspondence with this, autonomy has been argued and found to be associated with intrinsic motiva- tion (Deci, Koestner, & Ryan, 1999; Zuckerman, Porac, Lathin, Smith, & Deci, 1978), persistence (Moller, Deci, & Ryan, 2006), goal attainment (Sheldon & Elliot, 1998), and a general increase in subjective well-being (Reis, Sheldon, Gable, Roscoe, & Ryan, 2000; Sheldon, Ryan, Deci, & Kasser, 2004). Likewise, depriva- tion of autonomy needs can have a variety of detrimental conse- quences such as apathy and alienation (for an overview, see Deci & Ryan, 2002). The extent to which people’s autonomy needs are satisfied depends in part on contextual factors such as the extent to which the direct social environment is supportive of autonomy. This implies that external factors can potentially thwart people’s auton- omy needs, and hence, it makes sense that people are concerned about the development of protective mechanisms that help to buffer against autonomy threats. One such protective mechanism that has been developed by society is the enforcement of moral norms, as moral norms regulate social behavior such that extreme threats to autonomy (e.g., imposing harm) are constrained (Folger, 2001; cf. Rozin, Lowery, Imada, & Haidt, 1999). This autonomy- protective function of moral norms contains a paradox: Moral norms constitute obligations of appropriate conduct, thereby de- creasing choice with regard to what behavior is considered accept- able. This paradox was already observed by classic philosophers such as Jean-Jacques Rousseau (1762; Cranston, 1968) and Cesare Beccaria (1764; Paolucci, 1963), who noted that people desire a social contract in which they agree to give up some of their own individual freedoms by developing norms that prescribe what behaviors toward others are unacceptable in order to ensure overall security and happiness. Likewise, Folger (2001) noted that most people prefer a state of “bounded autonomy” in which people’s freedom of choice is protected, but at the same time also restricted, by moral obligations to respect other people’s autonomy and well-being. Such collective autonomy protection either succeeds or fails depending on the extent to which others also take these moral obligations seriously. The expectation that others adhere to their moral obligations becomes particularly relevant when interacting with a more pow- erful individual who is in a position to legitimately exert influence on the autonomy that one experiences. For instance, decision- making authorities often develop policies and rules that dictate what kind of behaviors their subordinates are required to display, raising concerns about autonomy in interactions with these author- ities (cf. Van den Bos & Lind, 2002; Van den Bos, Wilke, & Lind, 1998; Van Prooijen, Van den Bos, & Wilke, 2007). Likewise, it has been noted that leaders often are able to exploit followers, and hence, followers are more willing to accept leadership when they can exercise some form of control over leaders to minimize the potential for these autonomy threats (Boehm, 1999; Van Vugt, I thank Romy van der Lee for her assistance in collecting the data of Study 1 and Intan Samsuria and Marije Bun for all their invaluable efforts in preparing and conducting Study 3. Furthermore, I thank Caryl Rusbult, Paul van Lange, Catrin Finkenauer, Monique Pollmann, Joel Vuolevi, Francesca Righetti, and Kaska Kubacka for their helpful comments on a previous draft of the manuscript. Correspondence concerning this article should be addressed to Jan- Willem van Prooijen, Department of Social Psychology, VU University Amsterdam, Van der Boechorststraat 1, 1081 BT Amsterdam, the Nether- lands. E-mail: jw.van.prooijen@psy.vu.nl Journal of Personality and Social Psychology © 2009 American Psychological Association 2009, Vol. 96, No. 6, 1166 –1180 0022-3514/09/$12.00 DOI: 10.1037/a0014153 1166 Hogan, & Kaiser, 2008). These considerations suggest that subor- dinates are concerned about the extent to which authorities will respect their basic autonomy needs. One possible way for author- ities to address these concerns is to adhere to their moral obliga- tions by implementing fair decision-making procedures that ensure the rights and dignity of subordinates. The extent to which people feel treated fairly by authorities during a decision-making process is referred to as procedural justice (Thibaut & Walker, 1975). Accumulating research indicates that people assign much value to procedural justice, which is reflected in findings that fair decision- making procedures influence a wide range of human perceptions, emotions, and behaviors, and do so across diverse social settings. For instance, procedural justice has been found to increase feelings of being respected, the extent to which subordinates identify with the institutions that the authority represents, and subordinates’ willingness to voluntarily display behaviors that benefit these institutions (for overviews, see Brockner & Wiesenfeld, 1996; Cropanzano, Byrne, Bobocel, & Rupp, 2001; De Cremer & Tyler, 2005; Folger & Cropanzano, 1998; Lind & Tyler, 1988; Tyler & Blader, 2000, 2003; Tyler & Lind, 1992; Van den Bos & Lind, 2002). Although such a relation between autonomy needs and proce- dural justice may seem plausible, empirical research hitherto has failed to investigate this assumed relation in a satisfactory way. In the present article, I examined the possibility that procedural justice is in fundamental ways related to people’s need for auton- omy. As such, I pursued two interrelated goals. First, the present work integrates insights derived from self-determination theory with existing knowledge on procedural justice. In particular, I investigate whether people try to regulate their basic autonomy needs by attending to the fairness of decision-making procedures. Hence, the studies presented here were designed to make a novel contribution by investigating to what extent satisfaction or depri- vation of autonomy needs have implications for people’s fairness- based responses to decision-making procedures. Second, the present research proffers a novel answer to the question of why people care about fair decision-making procedures. For the last three decades, scientists have stressed the importance of under- standing why procedural justice matters to people, but the role of autonomy needs has been largely ignored or overlooked in con- temporary procedural justice research (e.g., De Cremer & Tyler, 2005; Folger & Cropanzano, 1998; Lind & Tyler, 1988; Thibaut & Walker, 1975; Tyler & Blader, 2003; Tyler & Lind, 1992; Van den Bos & Lind, 2002). I propose that the question of why procedural justice matters cannot be answered in full without taking human autonomy needs into account. In the following, I lay out my line of reasoning in more detail and introduce the specifics of the present research. Procedural Justice and Autonomy To determine whether procedures are fair or unfair, people evaluate procedures by means of various criteria. Leventhal (1980) summarized the most prominent of these criteria by postulating that for people to feel treated fairly during a decision-making process, the procedures should (for instance) be consistent between persons, should make accurate use of available information, should be compatible with fundamental moral and ethical values, and should be representative of the basic concerns and values of the parties affected by the decision. These criteria are related to a variety of procedural justice phenomena that have been studied extensively in empirical research. An illustration of a typical procedural justice phenomenon can be found in the effects of voice: People tend to feel that they have been treated fairer following decision-making procedures that allow them an oppor- tunity to voice their opinion as compared with procedures that deny them such an opportunity (Folger, 1977; Folger, Rosenfield, Grove, & Corkran, 1979). Opportunities for voice are considered important for various reasons: For instance, voice opportunities raise outcome expectancies (cf. Houlden, LaTour, Walker, & Thibaut, 1978; Thibaut & Walker, 1975) and communicate posi- tive relational information, such as being respected and appreci- ated as a valuable member of one’s community (e.g., Tyler, 1987; Tyler & Lind, 1992). Voice effects are robust and generalize across methods and samples (Brockner et al., 1998; Folger et al., 1979; Lind, Kanfer, & Earley, 1990; Van den Bos, 2003; Van den Bos et al., 1998; Van Prooijen, Karremans, & Van Beest, 2006; Van Prooijen, Van den Bos, & Wilke, 2004, 2005). Early interpretations of procedural justice phenomena such as the voice effect emphasized that fair procedures support a feeling of control over the decision-making process. In particular, a line of research instigated by Thibaut and Walker (1975) indicated that control over the outcome in a dispute resolution setting (decision control) and control over the way the evidence is presented (pro- cess control) exert independent effects on litigants’ reactions to the decision-making process (e.g., Houlden et al., 1978; Thibaut & Walker, 1975). In everyday life, however, people often have to leave ultimate control over the final decision to decision-making authorities. It has therefore been assumed that people desire pro- cess control because this might enable them to influence the final decisions. This line of reasoning has been referred to as the “instrumental” perspective, in that its basic proposition is that people value fair procedures (such as voice procedures) because these procedures may enable them to influence the specific out- come of a decision-making process. Given that instrumental per- spectives assign a central role to control in procedural justice judgments, it may well be that these perspectives are informative about the relation between autonomy and procedural justice. As such, it is important to note that classic instrumental perspectives are insufficient to fully appreciate the role of autonomy needs in the psychology of procedural justice. In particular, the core as- sumptions of instrumental perspectives restrict people’s desire for control to an attempt of influencing the specific outcome that happens to be at stake in the decision-making process. This focus on control over the immediate outcomes of procedures is concep- tually too narrow because it ignores the possibility that procedural justice judgments emerge from a more general desire to address basic autonomy needs. During interactions with decision-making authorities, people have reason to believe that their basic autonomy needs are at stake because authorities often are in the position to pressure recipients into a wide variety of unwanted outcomes, situations, or actions. Such an asymmetrical interdependence structure between au- thority and recipients is related to a situation that has been referred to as the “fundamental social dilemma” (Van den Bos et al., 1998; cf. Komorita & Parks, 1994): People often are concerned about the question of whether they can trust others not to take advantage of them. This question is particularly salient when interacting with 1167AUTONOMY AND PROCEDURAL JUSTICE authorities, as these authorities often have the power to cause harm by exploiting a recipient or by excluding a recipient from valuable social relationships. Hence, recipients are in many ways vulnerable to coercion exercised by the authority, potentially threatening basic autonomy needs. This fundamental social dilemma constitutes the basis of social-cognitive procedural justice theories such as fair- ness heuristic theory (Lind, Kulik, Ambrose, & De Vera-Park, 1993; Van den Bos et al., 1998) and the related uncertainty management model (Van den Bos, 2001; Van den Bos & Lind, 2002). According to these theories, people use procedural justice information to psychologically resolve the problems they have in their interactions with authorities because fair or unfair procedures are informative about the extent to which the authority’s intentions are benevolent. By derivation, it may therefore be argued that procedural justice is functional for people to gauge the extent to which their autonomy needs are threatened. If a decision-making authority treats recipients in a fair way, for instance by granting them the opportunity to voice an opinion, then recipients may infer that the authority has the intention to support their autonomy instead of forcing them into an unwanted situation through coer- cion. If an authority treats recipients in an unfair way, for instance by denying them an opportunity to voice an opinion, then recipi- ents may infer that the authority is not autonomy supportive but rather seeks to impose decisions upon them. In summary, recipi- ents are likely to interpret fair versus unfair decision-making procedures as evidence that the authority has the intention to support versus undermine their basic autonomy needs. The Present Research In the present research, I tested novel predictions that bridge insights from self-determination theory (Deci & Ryan, 1985, 2000) and insights from procedural justice theories (Lind et al., 1993; Van den Bos & Lind, 2002). On the basis of the theoretical framework described above, it is assumed that autonomy and procedural justice are related in fundamental ways, as procedural justice is expected to be functional for the regulation of basic autonomy needs. My line of reasoning is rooted in self- determination theory’s core proposition that autonomy is a basic psychological need that is essential for optimal psychological functioning. Traditionally, the majority of self-determination re- search focused on the consequences of autonomy need satisfaction for well-being, performance, and intrinsic motivation in goal pur- suit (e.g., Deci et al., 1999; Reis et al., 2000; Sheldon et al., 2004). It has also been noted, however, that people actively seek satis- faction of autonomy needs when this need has been thwarted. Notably, Deci and Ryan (2000) proposed that equifinality is a basic property of autonomy needs, which means that “people are persistent in their attempts to satisfy primary needs, devising new paths when old routes no longer work” (p. 248). This notion corresponds to a related body of literature, in which it has been argued that people display reactance when they are deprived of autonomy: People try to regain a sense of freedom when their freedom has been threatened (Brehm & Brehm, 1981). As such, the need for autonomy is regarded as a psychological necessity that continuously needs to be maintained above a minimum level, and people actively seek opportunities in their social environment to compensate for autonomy deprivation. This compensatory response to autonomy deficiencies has im- plications for potential differences between people who experience deprivation of autonomy needs versus people whose autonomy needs are satisfied. People can experience deprivations of auton- omy both structurally (e.g., being low in trait autonomy; i.e., individual differences in the perception of freedom of choice) and situationally (e.g., being denied choice in a particular situation). It can be inferred that if individuals experience deprivation of au- tonomy, either structurally or situationally, then they are relatively sensitive to autonomy-related cues in their direct social environ- ment. Such cues may provide opportunities for autonomy regula- tion: Messages that support one’s autonomy help an individual to repair or reconfirm a satisfactory sense of volitional functioning, but messages that threaten one’s autonomy may instigate even further moral indignation as people are explicitly denied the op- portunity to compensate for autonomy deficiencies. If people’s autonomy needs are satisfied, however, then they are less likely to be sensitive to autonomy-related cues in their direct social envi- ronment, as there is no incentive to engage in compensation- seeking behavior. In other words, there is not much urgency to regulate the need for autonomy when this need is already fulfilled above a satisfactory level. Such autonomy-related cues may be found in the quality of the decision-making procedures that are adopted by authorities. Build- ing on the argument that the perceived fairness of decision-making procedures is informative about the extent to which an authority has the intention to behave in ways that are supportive of auton- omy (cf. Lind et al., 1993; Van den Bos & Lind, 2002; Van den Bos et al., 1998), I suggest that people attend to the fairness of decision-making procedures more strongly when they experience some deprivation of basic autonomy needs. Importantly, the present line of reasoning would suggest that such increased sen- sitivity to procedural justice is likely to be found even when the source of autonomy deprivation is unrelated to the specific out- comes of the decision-making process. Autonomy is assumed to be a basic psychological need that, when thwarted, may be replen- ished by providing people with a sense of volition in a seemingly unrelated domain (Deci & Ryan, 2000). Furthermore, procedural justice is assumed to address basic autonomy needs beyond a sense of control over the specific outcomes of the decision-making process. Combining these arguments leads to the prediction that fairness-based responses are increasingly sensitive to decision- making procedures to the extent that recipients (a) structurally experience little choice in their life or (b) recently have been denied choice in a domain that is unrelated to the expected outcomes of the decision-making process. Thus, the general hypothesis to be tested in the present research is that people’s fairness-based responses are more sensitive to variations in decision-making procedures when they experience deprivation of autonomy as opposed to when their autonomy needs are fulfilled (Hypothesis 1). This hypothesis was tested in two laboratory experiments (Studies 1 and 2) and one field study (Study 3). Study 1 The first study was a laboratory experiment in which trait autonomy was measured as an individual-difference variable: Par- ticipants responded to a validated scale that is designed to assess the extent to which people experience a sense of choice in their life 1168 VAN PROOIJEN (Sheldon, 1995; Sheldon et al., 1996). Low scores on this scale reflect that participants feel structurally deprived of autonomy, in that participants do not experience much choice in their everyday activities. Furthermore, participants encountered a manipulation of a decision-making procedure in the context of a validated exper- imental procedure in which variations in procedural justice phe- nomena are investigated. In this procedure, the experimenter either grants versus denies participants an opportunity to voice their opinions about the number of lottery tickets that should be as- signed to the participant (Van den Bos, 2001; Van den Bos & Van Prooijen, 2001; Van den Bos et al., 1998; Van Prooijen, Karre- mans, & Van Beest, 2006; Van Prooijen et al., 2004). The main dependent variables constituted participants’ procedural justice judgments, that is, evaluations of how fairly they felt that they were treated by the experimenter.1 On the basis of the current line of reasoning, it was expected that procedural justice judgments would be influenced more strongly by the manipulation of voice versus no-voice procedures among participants who scored low as opposed to high in trait autonomy. Method Participants and design. A total of 90 participants (35 men, 55 women; mean age � 21.23, SD � 3.73) were recruited via flyers that were distributed in the VU University’s student cafeterias. The hypothesis was tested in a design in which trait autonomy was measured as a continuous independent variable, and procedure was manipulated by randomly assigning participants to voice versus no-voice conditions. The study was conducted simultaneously with two other unrelated studies. The studies lasted approximately 60 min, and participants were paid 7 Euros (approximately $9.50 U.S.) for their participation. Procedure. Upon arrival at the laboratory, participants were seated in separate cubicles. Inside the cubicles, participants found computer equipment that was used to present the stimulus infor- mation and to register the data. Participants were informed that they would take part in several unrelated studies. Participants then began with “Experiment 1,” which was presented as a study of life experiences. This study comprised various questionnaires. To measure trait autonomy, participants completed the Choicefulness subscale of the Self Determination Scale (Sheldon, 1995; Sheldon et al., 1996). This five-item scale is designed to measure the extent to which participants experience a sense of choice with respect to their behavior. Each item of the scale presents participants with two opposing statements, and participants are asked to indicate which of the statements feels most true for them. An example item is “I always feel like I choose the things I do” (Statement A) versus “I sometimes feel that it’s not really me choosing the things I do” (Statement B) (1 � only A feels true; 7 � only B feels true). Participants’ answers to the items were coded such that low scores indicate experienced choice deprivation, and high scores indicate a strong sense of choice. The items were averaged into a reliable autonomy scale (� � .84; M � 5.58, SD � 1.08). After completion of the questionnaire, participants continued with “Experiment 2,” which was presented as an unrelated study concerning how people perform tasks. Participants were led to believe that all computers in the lab were connected and that the experimenter (who was allegedly in one of the other cubicles) could send computer messages to all participants during the ex- periment (in reality, all stimulus information was preprogrammed). Participants were informed that a lottery with a prize of 50 Euros (approximately $68 U.S.) would take place among all participants and that following the tasks, the experimenter would allocate some number of lottery tickets to participants (e.g., Van den Bos, 2001, 2003; Van den Bos et al., 1998; Van Prooijen, De Cremer, et al., 2008; Van Prooijen, Karremans, & Van Beest, 2006; Van Prooijen et al., 2004, 2007). Participants then continued with the tasks, which entailed count- ing squares within larger figures (for a detailed description of the tasks, see Van den Bos & Van Prooijen, 2001; Van den Bos et al., 1998; Van Prooijen, Van den Bos, & Wilke, 2002). Participants were instructed to complete as many tasks as possible within 3 min. Following the tasks, the procedure manipulation was induced. Participants in the voice condition were informed that they were allowed an opportunity to voice their opinion about the number of lottery tickets that they thought should be allocated to them. These participants were then asked to type in the number of lottery tickets they believed they should receive. Participants in the no-voice condition were informed that they were not allowed an opportunity to voice their opinion about the number of lottery tickets that they thought should be allocated to them. These participants were not asked to type in the number of lottery tickets they believed they should receive. All participants were then informed that they would receive their lottery tickets at the end of the experiment and that they first would be asked a number of questions. These questions pertained to the dependent variables and manipulation checks. To measure perceived procedural justice, participants were asked the following three questions: “How fair was the way you were treated by the experimenter?” (1 � very unfair, 7 � very fair), “How correct were you treated by the experimenter?” (1 � very incorrect, 7 � very correct), and “How respectful were you treated by the experimenter?” (1 � not respectful, 7 � very respectful). These three items were averaged into a reliable pro- cedural justice scale (� � .81). To check the procedure manipu- lation, participants responded to the following two questions (1 � not at all, 7 � very much): “To what extent did the experimenter allow you an opportunity to voice your opinion about the number 1 There is an ongoing debate concerning terminology for the perceived fairness of interpersonal treatment. Organizational justice scholars have argued that procedural justice should refer only to the perceived fairness of the formal decision-making structure and that the perceived fairness of treatment should be referred to as interactional justice (e.g., Bies & Moag, 1986; Colquitt, 2001). Other justice scholars, however, have argued that treatment quality is a necessary component of procedural justice judg- ments, as people attend to both formal decision-making procedures as well as to the quality of interpersonal treatment to evaluate procedural justice (e.g., Tyler & Blader, 2003). In the present article, I adopt the latter (more generalized) terminology. I believe that explicitly distinguishing between procedural and interactional justice makes sense only in organizational settings where there is a formalized decision-making structure and contin- uous interaction with authorities, enabling people to evaluate formal decision-making procedures separately from their interpersonal contact with the direct supervisor. In situations wherein people interact with a decision maker only once (as in Studies 1 and 2), it is in all likelihood much more difficult for recipients to view the formal decision-making process (e.g., being granted vs. denied voice) separately from the quality of interpersonal treatment. 1169AUTONOMY AND PROCEDURAL JUSTICE of lottery tickets that should be allocated to you?” and “How much attention did the experimenter have for your opinion about the number of lottery tickets that should be allocated to you?” These two items were averaged into a reliable procedure check scale (� � .83). After this, participants were debriefed, thanked, and paid for their participation. Results The results were analyzed with hierarchical regression analyses that specified the main effects of autonomy and procedure in Step 1 and the interaction in Step 2. Participants’ scores on the auton- omy scale were centered, and the conditions of the procedure manipulation were effect coded (1 for the voice condition, �1 for the no-voice condition). The interaction term was based on the product of the centered autonomy scale and the effect-coded procedure manipulation (Cohen, Cohen, West, & Aiken, 2003). Manipulation check. The regression analysis on the procedure check scale indicated that only Step 1 accounted for a significant part of the variance (R2 � .61), F(2, 87) � 69.02, p � .001. Results revealed a significant procedure main effect (� � .78, p � .001). Participants in the voice condition perceived more opportu- nities to voice their opinion (M � 5.01, SD � 1.23) than partici- pants in the no-voice condition (M � 1.91, SD � 1.26). These results suggest that participants perceived the procedure manipu- lation as intended. Procedural justice judgments. The analysis of participants’ procedural justice judgments indicated that Step 1 accounted for a significant portion of the variance (R2 � .15), F(2, 87) � 7.91, p � .01. The procedure main effect was significant (� � .39, p � .001), indicating that participants in the voice condition felt that they were treated more fairly by the experimenter (M � 4.64, SD � 1.42) than were participants in the no-voice condition (M � 3.50, SD � 1.31). More important was the finding that Step 2 was significant (�R2 � .04), F(1, 86) � 4.06, p � .05, yielding the predicted interaction term (� � �.20, p � .05). The Autonomy � Procedure interaction is displayed graphically in Figure 1. To examine the specific nature of this interaction, I conducted simple slopes analyses. In correspondence with the hypothesis, the procedure manipulation exerted a stronger effect among participants who scored low in trait autonomy (� � .56, p � .002) than among participants who scored high in trait autonomy (� � .30, p � .03). These findings support the predic- tion that people’s procedural justice judgments are more sensitive to variations in decision-making procedures to the extent that they feel less autonomous in life. In addition, it may be noted that trait autonomy did not predict procedural justice judgments among participants in the voice con- dition (� � �.26, p � .08) or among participants in the no-voice condition (� � .15, p � .32). These latter findings suggest that both the voice and no-voice conditions contributed to the emer- gence of an interaction and underscore that the interaction should be interpreted in terms of the influence of trait autonomy on the relative magnitude of the effects of voice versus no-voice proce- dures. Discussion Study 1 provided preliminary evidence for the hypothesis that variations in decision-making procedures exert a stronger impact on procedural justice judgments among people who experience little as opposed to a lot of choice in their life. A remarkable aspect of this finding is that the trait autonomy scale (Sheldon, 1995; Sheldon et al., 1996) tapped experiences in participants’ lives in general, and hence, the scale was fully unrelated to the procedure manipulation and to the specific decision regarding the distribution of lottery tickets. This supports the assertion that autonomy depri- vation increases people’s sensitivity to decision-making proce- dures, even when the source of autonomy deprivation is unrelated to the expected outcomes of the decision-making process. The present findings are in correspondence with the idea that people regulate their basic autonomy needs by attending to the fairness of treatment by decision makers. Although promising, the present findings need to be complemented and extended in a second experiment. Instead of measuring autonomy as an individual- difference variable, in Study 2 autonomy was manipulated by providing versus not providing participants with choice regarding an issue that was unrelated to the outcome of the subsequent decision-making procedure. Study 2 By experimentally manipulating autonomy, Study 2 was de- signed to extend Study 1 by providing more conclusive evidence for the empirical relation that is under investigation here. Partici- pants responded to a modification of the experimental paradigm of Study 1. The study was again presented as a study on performing tasks. Autonomy was manipulated by providing versus not pro- viding participants with a choice opportunity regarding what kind of task they would perform (cf. Moller et al., 2006). In addition, a control condition was included in which participants were not made aware of choice possibilities. Then, the procedure manipu- lation was induced orthogonally from the autonomy manipulation: Participants were granted versus denied an opportunity to voice their opinion regarding a decision about how to divide lottery tickets. The main dependent variables again were participants’ procedural justice judgments. It was expected that procedural justice judgments would be influenced more strongly by the ma- nipulation of voice versus no-voice procedures among participants in the no-choice condition in comparison to participants in the choice condition. 2 3 4 5 6 Low High Trait autonomy Voice procedure No-voice procedure Figure 1. Participants’ procedural justice judgments as a function of trait autonomy and procedure in Study 1. 1170 VAN PROOIJEN Method Participants and design. The hypothesis was tested in a 3 (autonomy: choice versus no choice versus control) � 2 (proce- dure: voice versus no voice) factorial design. A total of 108 participants (32 men, 76 women; mean age � 20.58; SD � 2.62) were recruited via flyers that were distributed in the VU Univer- sity’s student cafeterias. Participants were assigned randomly to one of the six experimental conditions. The study was followed by another unrelated study. Together the studies lasted approximately 30 min, and participants received 3.50 Euros (approximately $4.75 U.S.) for their participation. Procedure. The experiment took place in the same laboratory as in Study 1. The introduction to the study was the same as the “Experiment 2” portion of Study 1. Before starting with the tasks, the autonomy manipulation was administered. In the choice con- dition, participants were informed that they would perform one out of two possible tasks: a “contrast sensitivity task” or an “intuitive decision task.” Participants were informed that, in general, people tend to evaluate both tasks as equally positive. Furthermore, both tasks were described as equally difficult and time-consuming. Participants were then allowed to choose which task they would perform. In the no-choice condition, participants received the same introduction. However, these participants were informed that they would be assigned to the contrast sensitivity task. In the control condition, no mention of two tasks was made. Participants in this condition were informed that all participants would be performing a contrast sensitivity task. This condition differed from the other two conditions in that no choice opportunities were made salient to the participants. Participants then proceeded with the task. The actual task was the same for all participants.2 During the task, a checker-board figure appeared on the computer screen for 10 s. Each figure contained black and white squares that were arranged in a random pattern. After 10 s, participants had to estimate whether there were more black or white squares in the figure (in reality, all figures contained 90 black and 90 white squares; De Gilder & Wilke, 1994). After participants had answered, the next figure appeared on the computer screen. Participants completed eight such tasks. After completion of the tasks, participants were informed that their performance did not deviate much from the performance of most participants. Participants were then asked how much fun and how boring (reverse scored) the tasks were (1 � not at all, 7 � very much). These two items were averaged into a reliable task evalu- ation scale (� � .71). Following the tasks, the procedure manipulation was adminis- tered. This manipulation was the same as in Study 1. Participants then responded to the questions that pertained to the dependent variables and manipulation checks. To measure perceived proce- dural justice, the measure of Experiment 1 was extended with two additional questions. The resulting five-item scale consisted of the following questions: “How fair was the way you were treated by the experimenter?” (1 � very unfair, 7 � very fair), “How just was the way you were treated by the experimenter?” (1 � very unjust, 7 � very just), “How appropriate was the way you were treated by the experimenter? (1 � very inappropriate, 7 � very appropriate), “How correct were you treated by the experimenter?” (1 � not correct, 7 � very correct), and “How respectful were you treated by the experimenter? (1 � not respectful, 7 � very respectful). These five items were averaged into a reliable procedural justice scale (� � .91). The manipulation checks were assessed after the measurement of procedural justice. To check the autonomy manipulation, the following three questions were posed (1 � not at all, 7 � very much): “To what extent did you feel free to decide for yourself what task you wanted to do?” “To what extent could you choose yourself what task you wanted to do?” and “To what extent did you have the feeling that you could influence what task you would do?” These three items were averaged into a reliable autonomy manipulation check scale (� � .92). To check the procedure manipulation, the same two questions as in Study 1 were posed. Again, these two items were averaged into a reliable procedure manipulation check scale (� � .86). After this, the experiment ended, and participants were fully debriefed, thanked, and paid for their participation. Results Manipulation checks. The manipulations were checked with 3 � 2 ANOVAs. The analysis on the autonomy manipulation check scale revealed only a significant autonomy main effect, F(2, 102) � 118.67, p � .001. According to Tukey’s honestly signif- icant difference (HSD) tests, all three conditions differed signifi- cantly from one another (all ps � .001). Participants in the choice condition experienced more autonomy (M � 6.25, SD � 0.76) than participants in the no-choice condition (M � 1.96, SD � 1.15). Participants in the control condition reported less experi- enced autonomy than participants in the choice condition, but more experienced autonomy than participants in the no-choice condition (M � 3.50, SD � 1.53). As was intended, explicitly being denied choice (as was the case in the no-choice condition) caused a stronger decrease in experienced autonomy than not being made aware of choice possibilities (as was the case in the control condition). Analysis of the procedure manipulation check scale revealed only a procedure main effect, F(1, 102) � 299.11, p � .001. Participants in the voice condition perceived more opportunities for voicing their opinion (M � 5.32, SD � 1.36) than did partic- ipants in the no-voice condition (M � 1.51, SD � 0.92). These results indicated that participants perceived the two experimental manipulations as intended. Furthermore, the fact that only the intended main effects were observed for the manipulation checks suggest that the attempt to orthogonally induce the autonomy and procedure manipulations was successful. Choices for tasks. In the choice condition, 15 participants chose the contrast sensitivity task, and 22 participants chose the intuitive decision task. This distribution does not deviate signifi- cantly from the expected 50% distribution, 2(1, N � 15) � 1.32, p � .25. This analysis ensured that participants did not structurally prefer one of the choice options. Task evaluation. A 3 � 2 ANOVA performed on the task evaluation scale yielded no significant effects. Of particular im- 2 The descriptions of the “contrast sensitivity task” and the “intuitive decision task” were brief and ambiguous. This ensured that the contingen- cies of the actual task were in correspondence with both options, enabling all participants in the choice condition to recognize their choice in the nature of the task. 1171AUTONOMY AND PROCEDURAL JUSTICE portance was the fact that the autonomy main effect was nonsig- nificant, F(2, 102) � 1.11, p � .33. Participants in the various experimental conditions evaluated the task as equally positive or negative. Experienced valence of the task can thus not explain the results reported here. Procedural justice. The means and standard deviations are displayed in Table 1. As a first analysis, I conducted a 3 � 2 ANOVA on perceived procedural justice. This analysis revealed a significant procedure main effect, F(1, 102) � 9.41, p � .01, indicating that participants in the voice condition reported higher levels of perceived procedural justice (M � 4.69, SD � 1.29) than participants in the no-voice condition (M � 3.93, SD � 1.42). The main effect of autonomy was nonsignificant, F(2, 102) � 1.58, p � .21. More important was that this analysis indicated a signif- icant interaction, F(2, 102) � 3.90, p � .03. I then proceeded to more directly test the hypothesis by means of interaction contrast analyses. The most straightforward test of the hypothesis was the comparison of the procedure effect in the choice condition versus the procedure effect in the no-choice condition. This analysis indicated a significant interaction contrast, F(1, 102) � 7.63, p � .01. In correspondence with the hypothesis, the procedure simple main effect was significant in the no-choice condition, F(1, 102) � 13.27, p � .001, but was nonsignificant in the choice condition (F � 1). That is, people respond more strongly to voice versus no-voice procedures when they previously had been denied choice in an unrelated domain than when they had been provided with choice in an unrelated domain. Two other relevant interaction contrasts are the comparison of the procedure effect in the control condition with the procedure effect in (a) the choice condition and (b) the no-choice condition. The first interaction contrast is informative about whether provid- ing choice reduced the relative strength of the procedure manipu- lation, and the second interaction contrast is informative about whether denying choice magnified the relative strength of the procedure manipulation. The first interaction contrast was nonsig- nificant, F(1, 102) � 2.22, p � .13, as was the second interaction contrast, F(1, 102) � 1.73, p � .19. These analyses indicated that the procedure effect in the control condition was intermediate between the procedure effects in the choice and no-choice condi- tions. Thus, the results suggest that both providing and not providing choice contributed to the differential impact of the procedure manipulation in the autonomy conditions. To investigate this pos- sibility further, I examined the effects of autonomy in both pro- cedure conditions. When observing the means displayed in Table 1, it appears that in the no-choice condition, participants displayed an increase in the value that they assigned to voice opportunities when compared with the choice and control conditions. A contrast analysis among participants in the voice condition that pitted the no-choice condition against the choice and control conditions indeed was significant, F(1, 102) � 5.08, p � .03. Furthermore, the pattern of means suggests that in the choice condition, partic- ipants may have responded less negatively to a no-voice procedure as compared with the other two conditions. Indeed, a contrast analysis within the no-voice condition that pitted the choice con- dition against the no-choice and control conditions was significant, F(1, 102) � 5.29, p � .03. These analyses suggest that being denied choice causes people to respond more positively to voice procedures and that being provided with choice decreases the negative impact of no-voice procedures. Discussion The results provided further support for the general hypothesis that the extent to which people’s autonomy needs are thwarted versus satisfied predicts their sensitivity to variations in procedural justice, as procedural justice judgments were influenced more strongly by the procedure manipulation when choice was denied than when choice was provided. Furthermore, inclusion of the control condition suggested that both deprivation and satisfaction of autonomy may be associated with procedural justice: The rel- ative difference between the choice and no-choice conditions was attributable to both a relative decrease in sensitivity to procedural justice when choice had been provided and to a relative increase in sensitivity to procedural justice when choice had not been pro- vided. When deprived of autonomy (i.e., choice has not been provided), results suggested that people increasingly value proce- dural justice cues that are supportive of their autonomy (i.e., voice procedures). When autonomy has been supported (i.e., choice has been provided), results suggested that people become relatively less sensitive to procedural justice cues that could potentially threaten their autonomy (i.e., no-voice procedures). These latter findings are in correspondence with Study 1, in which both the voice and no-voice conditions contributed to the interactive effect of autonomy and procedure on procedural justice judgments. Taken together, the results obtained in Studies 1 and 2 are consis- tent with the theoretical notion that people attend to the fairness of Table 1 Means and Standard Deviations of Participants’ Procedural Justice Judgments As a Function of Autonomy and Procedure in Study 2 Procedure Autonomy Choice Control No choice M SD M SD M SD Voice 4.41b,c 1.44 4.40b,c 1.19 5.31a 1.05 No voice 4.51a,c 1.52 3.60b 1.4 3.68b,c 1.19 Note. Higher means indicate more positive procedural justice judgments. Means with no subscript in common differ significantly at p � .05. 1172 VAN PROOIJEN decision-making procedures to regulate their basic autonomy needs. Manipulating both choice and voice in the same experiment may raise questions about the orthogonality of the experimental manip- ulations. In the present experiment, however, I found empirical indications that the two manipulations were induced indepen- dently. First, the manipulation checks revealed that the autonomy manipulation did not influence the extent to which participants perceived voice opportunities, and the procedure manipulation did not influence the autonomy manipulation check. Thus, both ma- nipulations only exerted the intended main effects on the manip- ulation checks, which suggests that the manipulations were per- ceived as independent by the participants. Second, whereas the procedure manipulation exerted a main effect on procedural justice judgments, which is in correspondence with previous research (Folger, 1977; cf. Brockner et al., 1998; Lind et al., 1990; Tyler, 1987; Van den Bos, 2003; Van Prooijen et al., 2004), the auton- omy manipulation did not exert such a main effect on procedural justice judgments. These findings suggest that the two manipula- tions had different psychological implications for participants. In particular, the results were in correspondence with the theoretical notion that manipulating choice directly satisfies versus deprives autonomy needs (Deci & Ryan, 1985) but that procedural justice may serve as a heuristic cue that informs recipients about the extent to which a decision maker has the intention to behave in ways that are supportive of autonomy needs. Study 3 Study 3 was designed to extend Studies 1 and 2 in three meaningful ways. First, the results of Studies 1 and 2 are limited to the effects of voice versus no-voice procedures. Although these variations in decision-making procedures have a strong and robust influence on justice-based responses and are central to the proce- dural justice literature, there are more criteria that determine whether people judge procedures to be fair versus unfair (Lev- enthal, 1980). In addition, voice procedures give recipients a sense of agency, and hence, one might argue that voice procedures are more directly associated with autonomy needs than other proce- dural justice criteria. In Study 3, I focused on general perceptions of procedural justice instead of specific manipulations of voice versus no-voice procedures. In particular, participants completed a procedural justice scale that was validated by Colquitt (2001), which is designed to assess all of Leventhal’s (1980) procedural justice criteria. As such, I examined in Study 3 whether the key hypothesis is corroborated using a broader operational definition of procedural justice. Second, the results of Studies 1 and 2 are limited to the psy- chological laboratory and to the specific population of university students. Although laboratory experiments are well suited to in- vestigate the causal influence of theoretical constructs on depen- dent variables while assuring high internal validity, one may question whether the processes observed in the laboratory gener- alize to situations outside of the laboratory and to different popu- lations. To evaluate the generalizability of the present findings, I investigated whether further evidence for the present conclusions would be observed outside of the psychological laboratory. There- fore, I tested the present hypothesis among public employees of the government of a large Dutch city, who reported on the extent to which they considered their work to be supportive of autonomy. Study 3 thus extended the previous studies by focusing on public employees rather than on university students and by assessing a real-life indicator of participants’ autonomy. As a third extension, Study 3 focused on the applied implica- tions of the present ideas for organizations. These implications were investigated by examining whether perceived procedural justice would interact with experienced work autonomy to influ- ence various perceptions and behaviors that are important for healthy organizational functioning. Such pro-organizational re- sponses have been associated with both procedural justice (Tyler & Lind, 1992) as well as with organizational implications of self-determination theory (Gagné & Deci, 2005). As pro- organizational perceptions, I measured participants’ identification with the organization (Huo, Smith, Tyler, & Lind, 1996) and the extent to which they feel respected by their organization (De Cremer & Tyler, 2005; Sleebos, Ellemers, & De Gilder, 2006). Whereas identification refers to the extent to which people psy- chologically connect themselves to the group, respect refers to the extent people believe that the group values and appreciates them. Previous research indeed indicates that identification and respect are empirically related, yet conceptually distinct constructs (e.g., Simon & Stürmer, 2003). As an indicator of pro-organizational behavior, I assessed the extent to which participants are inclined to report illegal or im- moral actions of their colleagues to their superiors. Such “whistle blowing” is an important variable in research on organizational ethics because it facilitates the cessation of wrongdoing in orga- nizations, which may benefit employees, stockholders, and society in general (Micelli, Near, & Schwenk, 1991). Although whistle blowing intentions have been argued to be associated with proce- dural justice (Near, Dworkin, & Micelli, 1993), the influence of procedural justice on this morality-based behavior is as yet not well documented by empirical social-psychological research. By including whistle blowing intentions as a dependent measure, the present study sought to (a) provide further evidence that proce- dural justice phenomena hold implications for this important morality-based behavior, and, more important for the present pur- poses, (b) test whether the relation between autonomy and proce- dural justice may generalize to pro-organizational behaviors. It is expected that the specified pro-organizational perceptions and behaviors are influenced more strongly by variations in procedural justice among public employees who experience low as opposed to high autonomy in their work. Method Participant sample. The study was conducted among public employees of the government of one of the largest cities in the Netherlands. Out of 161 public employees who were initially contacted by means of a telephone call, 113 public employees eventually completed and returned the questionnaire (a response rate of 70.2%). The final sample included 73 men, 35 women, and 5 participants who did not indicate their gender (mean age � 41.99 years, SD � 9.66). Procedure. Public employees were first approached by means of a telephone call to ask whether they were willing to participate in the study. Public employees who agreed to participate would receive the questionnaire and a return envelope in the mail. Par- 1173AUTONOMY AND PROCEDURAL JUSTICE ticipants could either send in the questionnaire by means of the return envelope or hand in the questionnaire to a research assistant who visited their department at an announced date. Participation was on a voluntary basis, and participants’ answers to the ques- tions were treated as anonymous and confidential. Questionnaire. The measures were part of a larger question- naire that also served applied purposes. To measure perceived procedural justice, the seven items developed by Colquitt (2001) to assess procedural justice were administered to the participants. This scale is based on the procedural justice rules proposed by Leventhal (1980). The questions started with “Whenever decisions are taken at my department. . . . ”, followed by, for example “. . . I am able to express my thoughts and feelings” “. . . . the employed procedures are applied consistently” and “. . . the decisions are based on accurate information” (1 � strongly disagree, 7 � strongly agree). The seven items were averaged into a reliable procedural justice scale (� � .74).3 To measure the extent to which participants experienced a sense of autonomy in their work, they indicated to what extent their employment supported choice on a variety of dimensions. These dimensions included freedom in how to organize the various task demands, how to apply the skills one has acquired, and how to evaluate results. In particular, participants were asked to what extent their work contained the following characteristics (1 � not at all, 7 � very much): “Freedom to choose your own work methods” “Responsibility” “The opportunity to evaluate the qual- ity of your work yourself” “Variation in the tasks” and “The opportunity to use your capabilities.” These five items were aver- aged into a reliable autonomy scale (� � .79). Organizational identification was measured with three items (1 � strongly disagree, 7 � strongly agree): “At this moment, I identify with my department” “At this moment, I want to do my best for my department” and “At this moment, I feel connected to my department.” These measures were averaged into a reliable measure of organizational identification (� � .72). Perceived respect from the organization was measured with three items (1 � strongly disagree, 7 � strongly agree): “The department appreciates my contribution” “The department shows consideration for my goals and values” and “The department genuinely cares about my well-being.” These three items were averaged into a reliable respect scale (� � .81). To measure whistle blowing, participants were presented with six brief hypothetical scenarios regarding integrity violations com- mitted by a public employee. To ensure realism, all scenarios were based on incidents that in previous years had actually been re- ported at the city government’s Department of Integrity.4 An example of an integrity violation scenario is the following: Coincidently, a relative of the public employee who works at a service desk applies for a license. According to the rules, the relative is legally entitled to this license. But because the public employee privately is at odds with this particular relative, he refuses to grant the license. The other scenarios described sharing of classified information with unauthorized individuals, searching the government’s com- puter files for information concerning the financial situation of one’s ex-wife in order to gain advantage in a custody battle, smoking marijuana while on duty (and while driving a company car), a male public employee sexually harassing a female public employee, and a public employee who was bribed to falsify sig- natures on a wedding document. After each scenario, participants indicated their agreement to the following statement: “I would report this incident to this public employee’s direct supervisor” (1 � strongly disagree, 7 � strongly agree). Consequently, six items measured the extent to which participants were inclined to “blow the whistle” in response to six diverse integrity violations. These six items were averaged into a reliable whistle blowing scale (� � .89). Results Exploratory factor analysis. To investigate whether the mea- surement of autonomy was distinct from the measurement of procedural justice, I first conducted an exploratory factor analysis (principal-axis factoring) on the items that formed the autonomy and procedural justice scales. Given that measures of respect conceptually are closely related to procedural justice (De Cremer & Tyler, 2005), I also included the respect items in this analysis. A three-factor solution with oblimin rotation was imposed a priori according to the theoretical expectation that autonomy, procedural justice, and respect are empirically distinct constructs. These three factors (Eigenvalues � 1.60) had pattern coefficients that sup- ported the notion that autonomy, procedural justice, and respect are empirically distinct. The five autonomy items all had high pattern coefficients (|fij| � .40) on the first factor but not on the second or third factor. This provides empirical evidence that the five autonomy items indeed all reflect the same underlying psy- chological construct. The three respect items had high pattern coefficients on the second factor but not on the first or third factor; and, out of seven procedural justice items, six had high pattern coefficients on the third but not on the first or second factor. The only deviating item in the procedural justice scale was the item whether the employed procedures are applied consistently; this item did not load well on any factor. To keep Colquitt’s (2001) original procedural justice measure intact, I retained this item in the analyses below (results were similar when this item was excluded). Hierarchical regression analyses. Table 2 displays the means, standard deviations, and intercorrelations for the variables that were assessed in Study 3. In correspondence with Study 1, the hypothesis was tested by means of hierarchical regression analy- ses. Both the autonomy and procedural justice scales were cen- tered, and the interaction term was based on the product of these centered variables (Cohen et al., 2003). Step 1 tested for main effects, and the interaction was added to the regression model in Step 2. The results of the hierarchical regression analyses are displayed in Table 3. Step 1 was nonsignificant for whistle blowing (R2 � .04), F(2, 110) � 2.06, p � .13, but Step 1 was significant for both identification (R2 � .21), F(2, 110) � 14.76, p � .001, and for 3 One of the items in the procedural justice scale referred to voice opportunities, and another item referred to process control. It is noteworthy that when these two items (which are arguably most closely associated with autonomy concerns) were dropped from the scale, the analyses still re- vealed the predicted interactions on the dependent variables. 4 I thank the Department of Integrity for granting my research assistants access to their files. No public employees of the Department of Integrity were included in the sample. 1174 VAN PROOIJEN respect (R2 � .20), F(2, 110) � 13.50, p � .001. As can be seen in Table 3, the main effect of perceived procedural justice was a significant predictor of perceived respect from the organization, but not of organizational identification. The main effect of auton- omy significantly predicted both identification and perceived re- spect. More important for the present purposes, the Step 2 inter- action term was significant for all three dependent variables: for identification (�R2 � .04), F(1, 109) � 5.23, p � .03; for respect (�R2 � .04), F(1, 109) � 5.09, p � .03; and for whistle blowing (�R2 � .04), F(1, 109) � 4.97, p � .03. The interactions on the three dependent variables are displayed graphically in Figure 2. To examine the nature of these interac- tions, I conducted simple slopes analyses for all dependent vari- ables. Among participants who scored low in autonomy, proce- dural justice was a strong and significant predictor of identification (� � .48, p � .001), perceived respect (� � .60, p � .001), and whistle blowing (� � .42, p � .01). Among participants who scored high in autonomy, procedural justice was not a significant predictor of identification (� � �.11, p � .41), perceived respect (� � .13, p � .32), or whistle blowing (� � .03, p � .80). Taken together, these results supported the hypothesis for all dependent variables, replicating and extending the laboratory findings of Studies 1 and 2 in a field setting. Finally, I tested whether the effects of autonomy were most pronounced following experiences of procedural justice or injus- tice. Autonomy was not a significant predictor of any of the dependent variables among participants who scored high on the procedural justice scale (all ps � .22). Among participants who scored low on the procedural justice scale, however, autonomy significantly predicted identification (� � .55, p � .001), respect (� � .51, p � .001), but not whistle blowing (� � .20, p � .19). These different patterns for the dependent variables may be ex- plained by assuming that whistle blowing behaviors are associated with more complex psychological dynamics than perceptual re- sponses, given that whistle blowing behaviors can be costly in terms of potential retaliation (Near et al., 1993). In addition, it can be noted that effects of autonomy on identification and respect are most pronounced in response to procedural injustice, which is inconsistent with the results of Studies 1 and 2. I return to this finding below. Discussion Study 3 replicated and extended the findings of Studies 1 and 2. Results supported the central hypothesis with a broader operation- alization of procedural justice, and in a population of public employees. Furthermore, Study 3 suggested that the interactive effects of procedural justice with autonomy can have substantial implications for organizations. This was evidenced by the fact that the predicted interaction was observed for both pro-organizational perceptions (i.e., identification and respect) and behaviors (i.e., whistle blowing). These pro-organizational perceptions and behav- iors are important for healthy organizational functioning (De Cre- mer & Tyler, 2005; Huo et al., 1996; Micelli et al., 1991; Near et al., 1993; Sleebos et al., 2006). As such, Study 3 strengthens confidence in both the validity and the applicability of the theo- retical proposition that people attend to variations in procedural justice to regulate their basic autonomy needs. Whereas in Studies 1 and 2 the influence of autonomy on procedural justice judgments did not clearly differ for voice versus no-voice procedures, in Study 3 the influence of autonomy on identification and respect was most pronounced in response to procedural injustice. This differential finding is most likely caused by subtle differences between experimentally inducing a voice or no-voice procedure versus measuring procedural justice using Colquitt’s (2001) procedural justice scale. As noted earlier, voice Table 2 Means, Standard Deviations, and Intercorrelations of the Measures Assessed in Study 3 Measure M SD 1 2 3 4 5 1. Procedural justice 4.51 0.96 — 2. Autonomy 5.48 0.98 .46��� — 3. Organizational identification 5.23 1.26 .27�� .46��� — 4. Perceived respect 4.37 1.28 .40��� .36��� .52��� — 5. Whistle blowing 5.01 1.61 .19� .11 .26�� .15 — �p � .05. �� p � .01. ��� p � .001. Table 3 Results From Hierarchical Regression Analyses in Study 3 Variable Identification Perceived respect Whistle blowing � t(110) � t(110) � t(110) Step 1 Procedural justice .08 0.82 .30 3.09�� .17 1.64 Autonomy .42 4.40��� .22 2.29� .03 0.31 Step 2 t(109) t(109) t(109) Procedural Justice � Autonomy �.20 �2.29� �.20 �2.26� �.22 �2.23� �p � .05. �� p � .01. ��� p � .001. 1175AUTONOMY AND PROCEDURAL JUSTICE procedures may be more closely associated with autonomy than other procedural justice criteria, in that opportunities to voice one’s opinion create a sense of agency and active participation. As such, voice procedures may be of particular relevance in buffering oneself against deprivations of autonomy. These specific features of voice procedures are less relevant when measuring a broader range of procedural justice criteria (Leventhal, 1980). Across var- ious procedural justice criteria, people may be particularly sensi- tive to unfair procedures as a function of the extent to which autonomy needs are thwarted. This possibility is consistent with previous arguments that the negative impact of injustice on per- ception and behavior is stronger than is the positive impact of justice (Folger, 1984; Folger & Cropanzano, 1998; Van den Bos & Van Prooijen, 2001; Van Prooijen, De Cremer, et al., 2008; Van Prooijen, Van den Bos, Lind, & Wilke, 2006; cf. Baumeister, Bratlavsky, Finkenauer, & Vohs, 2001). Be that as it may, such differential impact of fair versus unfair procedures does not com- promise the main conclusion of the present contribution, which is that people are more sensitive to variations in procedural justice when they experience low as opposed to high autonomy in various domains. General Discussion The three studies reported herein provided consistent evidence for the proposition that deprivation versus gratification of auton- omy needs predicts people’s fairness-based responses to decision- making procedures. The general hypothesis was supported when autonomy was measured as an individual-difference variable (Study 1), when autonomy was experimentally manipulated (Study 2), and when autonomy was measured as a property of people’s employment (Study 3). Furthermore, the results of the studies converged as a product of manipulations of voice versus no-voice procedures (Studies 1 and 2) as well as assessments of global procedural justice in organizations (Study 3). The findings were replicated both in the laboratory and in a field setting, and the predicted interaction was evident for both procedural justice judg- ments and for various pro-organizational perceptions (identifica- tion and respect) and behaviors (whistle blowing). Taken together, the findings of the three studies support the propositions that the extent to which autonomy needs are satisfied hold implications for people’s fairness-based responses to decision-making procedures and that a complete answer to the question of why procedural justice matters to people must take human autonomy needs into account. In particular, the results presented here are in strong agreement with the underlying theoretical claim that people attend to the fairness of decision-making procedures as a means of regulating their basic autonomy needs. The present findings have theoretical implications for the inte- gration of self-determination theory (Deci & Ryan, 1985, 2000) and procedural justice theories (Lind et al., 1993; Tyler & Blader, 2003; Tyler & Lind, 1992; Van den Bos & Lind, 2002; Van den Bos et al., 1998). According to self-determination theory, people seek fulfillment of three basic psychological needs—autonomy, relatedness, and competence. The present research focused on autonomy needs by revealing that people’s fairness-based re- sponses are more sensitive to the way they are treated by authority figures when they are deprived of autonomy. In light of other findings in the procedural justice literature, it is noteworthy that relatedness and competence needs also are substantially related to procedural justice. For instance, researchers have found that pro- cedural justice is functional to regulate one’s sense of relatedness, in that fair versus unfair procedures are informative about the extent to which one is included in or excluded from social groups (e.g., De Cremer, 2002; Smith, Tyler, Huo, Ortiz, & Lind, 1998; Tyler, 1994; Van Prooijen, Gallucci, & Toeset, 2008; Van Prooijen et al., 2004). Likewise, empirical research has linked a concern for procedural justice with indicators of one’s competence, such as performance-based status (Diekmann, Sondak, & Barsness, 2007; Tyler & Blader, 2002; Van Prooijen et al., 2002, 2005). These previous findings, in conjunction with the findings of the present research, suggest that one of the main reasons why people might care about the fairness of decision-making procedures is because these procedures are functional to inform people about the extent to which the social environment supports versus undermines basic psychological needs. Hence, procedural justice may be more closely associated with social motives and needs than has been recognized before. Further empirical examination may inform DV: Identification 4 5 6 Low autonomy High autonomy High PJ Low PJ DV: Respect 3 4 5 6 Low autonomy High autonomy High PJ Low PJ DV: Whistle blowing 4 5 6 Low autonomy High autonomy High PJ Low PJ Figure 2. The three dependent variables (DVs) as a function of autonomy and procedural justice (PJ) in Study 3. 1176 VAN PROOIJEN scientists about the more general question of why people care about the fairness of decision-making procedures, and may inte- grate procedural justice theories with self-determination theory (Deci & Ryan, 1985) and with related theoretical perspectives on social motives and needs (e.g., Fiske, 2004). The fact that the key hypothesis was tested by means of various research methods (i.e., laboratory experiments and a field study; various operationalizations of independent variables) has at least two noteworthy advantages. First, this variation in research pro- cedures ensures that the present findings are not an artifact of one or the other method, but rather that the present findings reflect a genuine and impactful phenomenon that can be observed in vari- ous ways and in a variety of social situations. As such, the observed support for the hypothesis is indicative for the robustness of the present findings. Second, the limitations of one study are complemented by the strengths of other studies. For instance, one might argue that the laboratory setting of Studies 1 and 2 is artificial, raising questions about the extent to which the relation between procedural justice and autonomy has any meaning in everyday life situations. This limitation, however, was addressed in Study 3, which revealed that the present ideas can have far- reaching consequences in a real-life organizational setting. In a similar vein, one might argue that Study 3 rests on correlational findings and is thus subject to questions about causality and alternative explanations (e.g., constructs that may be correlated with the autonomy measure). For instance, public employees with more autonomy may also have more power, or be higher in the organizational hierarchy. These limitations were addressed in Study 2, in which autonomy and procedure were orthogonally manipulated to reveal a causal influence on procedural justice judgments. Furthermore, it seems unlikely that the measure of trait autonomy in Study 1 reflects differences in power or status. As such, the variety of methods that were used here helps to rule out alternative explanations and increases confidence in the validity and applicability of the present conclusions. Although the present article proposed that autonomy and pro- cedural justice are closely related, it is important to note that a procedural justice manipulation cannot be equated with an auton- omy manipulation. Being allowed voice does not automatically imply choice, as authorities do not have to listen to the concerns of subordinates (Lind et al., 1990). Indeed, in a complex social environment where opinions differ substantially among various subordinates, or where painful decisions are necessary for the collective interest, it may be unavoidable for decision makers to disregard the opinions of some or all of the subordinates. Subor- dinates often are well aware of this, and, as such, it is plausible that subordinates interpret voice opportunities, or other indications that procedures were fair (Leventhal, 1980), as evidence that decision makers are at least willing to make an effort to be supportive of autonomy. Thus, whereas choice opportunities directly address autonomy needs (Deci & Ryan, 1985, 2000; Moller et al., 2006), opportunities to voice an opinion are more likely to be regarded as an indirect heuristic cue to estimate the extent to which a decision maker has the intention to behave in ways that are supportive of autonomy (Lind et al., 1993; Van den Bos et al., 1998). Empiri- cally, the results indeed suggested that autonomy and procedural justice were independent in the present studies. For instance, in Study 2, manipulation checks indicated that the choice and voice manipulations were induced independently. Furthermore, the fac- tor analysis in Study 3 revealed that the items measuring autonomy loaded on a different factor than the items measuring procedural justice. In future research, it would be interesting to find out to what extent procedural justice manipulations are effective in re- storing autonomy deficiencies. Establishing such a relation would further refine the model of procedural justice as an autonomy- regulating tool that was presented in the present contribution. The theoretical rationale that underlies the present work was partly based on social-cognitive procedural justice theories, spe- cifically, fairness heuristic theory (Lind et al., 1993; Van den Bos et al., 1998) and the related uncertainty management model (Van den Bos & Lind, 2002). These theories assign a major role to human uncertainty to explain procedural justice effects, as indi- cated by findings that feelings of uncertainty increases people’s sensitivity to procedural justice manipulations (Van den Bos, 2001; see also De Cremer & Sedikides, 2005). Although these insights contributed to the line of reasoning underlying the present hypothesis, it is important to note that measurements or manipu- lations of autonomy are not likely to simultaneously measure or manipulate uncertainty. For instance, many empirical studies re- vealed that low-trait or situational autonomy is associated with numerous detrimental life outcomes (Deci et al., 1999; Deci & Ryan, 2000, 2002; Sheldon et al., 2004), but to the best of my knowledge, no evidence has yet documented that these detrimental effects are mediated by feelings of uncertainty. Also, it does not seem plausible to assume that the effects of the autonomy manip- ulation in Study 2 are attributable to feelings of uncertainty. That is, feelings of uncertainty generally reflect a desire for meaning and structure in an unpredictable social environment (Van den Bos & Lind, 2002). This does not apply to the autonomy conditions of Study 2, as participants in all conditions knew for certain what task they would perform (in fact, all participants had completed the task before encountering the manipulation of voice versus no-voice procedure). Taken together, it does not seem likely that the present findings can alternatively be explained by the assertion that low autonomy increases feelings of uncertainty. Indeed, if there were a relation between uncertainty and choice, it would be plausible to argue that excessive choice is associated with increased uncertainty— high choice increases unpredictability in light of unclarity about what choice option would best serve one’s goals. As such, in Study 2, I took care to limit individuals’ choice options to only two possibilities. Such limitation in the number of choice options is in correspondence with previous research in which positive consequences of choice were studied (Moller et al., 2006; Zuckerman et al., 1978). In this regard, it is noteworthy that empirical research suggests that there indeed are limits to the amount of choice that people consider to be desirable, as people can experience “choice overload” when confronted with too many options. Such choice overload has been found to be demotivating in a variety of situations (Iyengar & Lepper, 2000). These ideas point to interesting avenues for future research de- signed to further disentangle the relation between choice and procedural justice. For instance, whereas the present research revealed that a modest number of choice opportunities decreases people’s responsiveness to procedural justice, one might speculate that an excessive number of choice opportunities would increase people’s responsiveness to procedural justice. Justice has been argued to provide structure and meaning to social situations (Van den Bos & Lind, 2002), and hence people may feel a particular 1177AUTONOMY AND PROCEDURAL JUSTICE need for justice when they face a situation that is unpredictable given the necessity to choose between an excessive number of options. The present research may also have theoretical and practical implications for the question of which leaders are effective in coordinating a group toward a collective goal (Van Vugt et al., 2008). Self-determination theory predicts that leaders who are supportive of autonomy will intrinsically motivate followers, thereby increasing team performance (Deci et al., 1999; Gagné & Deci, 2005). This is consistent with research indicating that the unnecessary exercise of control by an external leader can lead to dissatisfaction among members of a self-managing team (Morge- son, 2005). The insights presented here identified a tool that is functional for leaders to behave in an autonomy-supportive way. By implementing fair decision-making procedures—for instance, by listening to the concerns of subordinates, by being transparent, and by exerting efforts to be an unbiased and consistent decision maker—leaders may be able to elicit pro-organizational responses particularly from followers who do not feel very autonomous in their work or other life domains. This insight may be useful to corporate managers, given that pro-organizational responses, such as those investigated in Study 3 of the present contribution, are associated with healthy organizational functioning (cf. De Cremer & Tyler, 2005; Huo et al., 1996; Near et al., 1993). Furthermore, future research may investigate the extent to which the present findings generalize to other social situations and mea- sures, to more tightly integrate the autonomy and procedural justice domains. In separate lines of research, autonomy and pro- cedural justice both have been shown to shape a variety of human responses in educational settings, health care situations, sports teams, friendships and intimate relationships, and numerous other important life domains (Deci & Ryan, 2000, 2002; Lind & Tyler, 1988; Tyler & Lind, 1992). Informed by the present findings, it seems likely that human perception and behavior in many different situations are influenced by the interplay between autonomy and justice concerns. Furthermore, procedural justice research may start incorporating dependent variables that are typically associ- ated with the self-determination of behavior, such as persistence in goal pursuit, psychological adjustment, and intrinsic motivation. Future research would do well to scrutinize these relations in a wide range of social settings. To conclude, the present research was initiated to establish an empirical relation between the fundamental human need for au- tonomy and people’s concern for procedural justice. The findings indeed suggest such a relation, supporting a model that predicts procedural justice to be functional for the regulation of autonomy needs. As such, the present research may be informative about broader questions surrounding human morality. For instance, one might speculate that the deprivation of basic psychological needs places people in a psychological state that causes them to evaluate behavior from a moral point of view. That is, deprivation of basic psychological needs (autonomy, belongingness) may be associated in fundamental ways with people’s concern for morality, as people may desire a fair decision-making structure that is likely to support these basic psychological needs. The present findings increase the empirical basis for such a fundamental relation between need fulfillment and human morality. It can be concluded that the need for autonomy is important to understand why the quality of decision-making procedures exerts such strong and pervasive ef- fects on fairness judgments and related perceptions and behaviors. References Baumeister, R. F., Bratlavsky, E., Finkenauer, C., & Vohs, K. D. (2001). Bad is stronger than good. Review of General Psychology, 5, 323–370. Baumeister, R. F., & Leary, M. R. (1995). The need to belong: Desire for interpersonal attachments as a fundamental human motive. Psychologi- cal Bulletin, 117, 497–529. Bies, R. J., & Moag, J. S. (1986). Interactional justice. In R. J. Lewicki, B. M. Sheppard, & M. H. Bazerman (Eds.), Research on negotiations in organizations (Vol. 1, pp. 43–55). Greenwich, CT: JAI Press. Boehm, C. (1999). Hierarchy in the forest: The evolution of egalitarian behavior. London: Harvard University Press. Brehm, S. S., & Brehm, J. W. (1981). Psychological reactance: A theory of freedom and control. New York: Academic Press. Brockner, J., Heuer, L., Siegel, P. A., Wiesenfeld, B., Martin, C., Grover, S., et al. (1998). The moderating effect of self-esteem in reaction to voice: Converging evidence from five studies. Journal of Personality and Social Psychology, 75, 394 – 407. Brockner, J., & Wiesenfeld, B. M. (1996). An integrative framework for explaining reactions to decisions: Interactive effects of outcomes and procedures. Psychological Bulletin, 120, 189 –208. Cohen, J., Cohen, P., West, S. G., & Aiken, L. S. (2003). Applied multiple regression/correlation analysis for the behavioral sciences (3rd ed.). Mahwah, NJ: Erlbaum. Colquitt, J. A. (2001). On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology, 86, 386 – 400. Cranston, M. (1968). The social contract. Harmondsworth, England: Pen- guin Books. (Original work published 1762). Cropanzano, R., Byrne, Z. S., Bobocel, D. R., & Rupp, D. E. (2001). Moral virtues, fairness heuristics, social entities, and other denizens of organi- zational justice. Journal of Vocational Behavior, 58, 164 –209. Deci, E. L., Koestner, R., & Ryan, R. M. (1999). A meta-analytic review of experiments examining the effects of extrinsic rewards on intrinsic motivation. Psychological Bulletin, 125, 627– 668. Deci, E. L., & Ryan, R. M. (1985). Intrinsic motivation and self- determination in human behavior. New York: Plenum Press. Deci, E. L., & Ryan, R. M. (2000). The “what” and “why” of goal pursuits: Human needs and the self-determination of behavior. Psychological Inquiry, 11, 227–268. Deci, E. L., & Ryan, R. M. (2002). Handbook of self-determination research. Rochester, NY: The University of Rochester Press. De Cremer, D. (2002). Respect and cooperation in social dilemmas: The importance of feeling included. Personality and Social Psychology Bul- letin, 28, 1335–1341. De Cremer, D., & Sedikides, C. (2005). Self-uncertainty and responsive- ness to procedural justice. Journal of Experimental Social Psychology, 41, 157–173. De Cremer, D., & Tyler, T. R. (2005). Managing group behavior: The interplay between fairness, self, and cooperation. In M. Zanna (Ed.), Advances in experimental social psychology (pp. 151–218). New York: Academic Press. De Gilder, D., & Wilke, H. A. M. (1994). Expectation states theory and the motivational determinants of social influence. In W. Stroebe & M. Hewstone (Eds.), European review of social psychology (Vol. 5, pp. 243–269). London: Wiley. Diekmann, K. A., Sondak, H., & Barsness, Z. I. (2007). Does fairness matter more to some than to others? The moderating role of workplace status on the relationship between procedural fairness perceptions and job satisfaction. Social Justice Research, 20, 161–180. Fiske, S. T. (2004). Social beings: A core motives approach to social psychology. New York: Wiley. 1178 VAN PROOIJEN Folger, R. (1977). Distributive and procedural justice: Combined impact of “voice” and improvement on experienced inequity. Journal of Person- ality and Social Psychology, 35, 108 –119. Folger, R. (1984). Emerging issues in the social psychology of justice. In R. Folger (Ed.), The sense of injustice: Social psychological perspectives (pp. 3–24). New York: Plenum Press. Folger, R. (2001). Fairness as deonance. In S. W. Gilliland, D. D. Steiner, & D. P. Skarlicki (Eds.), Research in social issues in management (pp. 3–31). Information Age Publishers. Folger, R., & Cropanzano, R. (1998). Organizational justice and human resource management. Thousand Oaks, CA: Sage. Folger, R., Rosenfield, D., Grove, J., & Corkran, L. (1979). Effects of “voice” and peer opinions on responses to inequity. Journal of Person- ality and Social Psychology, 37, 2253–2261. Gagné, M., & Deci, E. L. (2005). Self-determination theory and work motivation. Journal of Organizational Behavior, 26, 331–362. Houlden, P., LaTour, S., Walker, L., & Thibaut, J. (1978). Preference for modes of dispute resolution as a function of process and decision control. Journal of Experimental Social Psychology, 14, 13–30. Huo, Y. J., Smith, H. J., Tyler, T. R., & Lind, E. A. (1996). Superordinate identification, subgroup identification, and justice concerns: Is separat- ism the problem; is assimilation the answer? Psychological Science, 7, 40 – 45. Iyengar, S. S., & Lepper, M. R. (2000). When choice is demotivating: Can one desire too much of a good thing? Journal of Personality and Social Psychology, 79, 995–1006. Komorita, S. S., & Parks, C. D. (1994). Social dilemmas. Boulder, CO: Westview Press. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social exchange: Advances on theory and research (pp. 27–54). New York: Plenum Press. Lind, E. A., Kanfer, R., & Earley, P. C. (1990). Voice, control, and procedural justice: Instrumental and noninstrumental concerns in fair- ness judgments. Journal of Personality and Social Psychology, 59, 952–959. Lind, E. A., Kulik, C. T., Ambrose, M., & De Vera-Park, M. V. (1993). Individual and corporate dispute resolution: Using procedural fairness as a decision heuristic. Administrative Science Quarterly, 38, 224 –251. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum Press. Micelli, M. P., Near, J. P., & Schwenk, C. R. (1991). Who blows the whistle and why? Industrial & Labor Relations Review, 45, 113–129. Moller, A. C., Deci, E. L., & Ryan, R. M. (2006). Choice and ego- depletion: The moderating role of autonomy. Personality and Social Psychology Bulletin, 32, 1024 –1036. Morgeson, F. P. (2005). The external leadership of self-managing teams: Intervening in the context of novel and disruptive events. Journal of Applied Psychology, 90, 497–508. Near, J. P., Dworkin, T. M., & Micelli, M. P. (1993). Explaining the whistle-blowing process: Suggestions from power theory and justice theory. Organization Science, 4, 393– 411. Paolucci, H. (1963). On crimes and punishment. Indianapolis, IN: Bobbs- Merrill. (Original work published 1764). Reis, H. T., Sheldon, K. M., Gable, S. L., Roscoe, J., & Ryan, R. M. (2000). Daily well-being: The role of autonomy, competence, and relat- edness. Personality and Social Psychology Bulletin, 26, 419 – 435. Rozin, P., Lowery, L., Imada, S., & Haidt, J. (1999). The CAD triad hypothesis: A mapping between three moral emotions (contempt, anger, disgust) and three moral codes (community, autonomy, divinity). Jour- nal of Personality and Social Psychology, 76, 574 –586. Sheldon, K. M. (1995). Creativity and self-determination in personality. Creativity Research Journal, 8, 61–72. Sheldon, K. M., & Elliot, A. J. (1998). Not all personal goals are “per- sonal”: Comparing autonomous and controlling goals on effort and attainment. Personality and Social Psychology Bulletin, 24, 546 –557. Sheldon, K. M., Ryan, R. M., Deci, E. L., & Kasser, T. (2004). The independent effects of goal contents and motives on well-being: It’s both what you pursue and why you pursue it. Personality and Social Psy- chology Bulletin, 30, 475– 486. Sheldon, K. M., Ryan, R. M., & Reis, H. (1996). What makes for a good day? Competence and autonomy in the day and in the person. Person- ality and Social Psychology Bulletin, 22, 1270 –1279. Simon, B., & Stürmer, S. (2003). Respect for group members: Intragroup determinants of collective identification and group-serving behavior. Personality and Social Psychology Bulletin, 29, 183–193. Sleebos, E., Ellemers, N., & De Gilder, D. (2006). The carrot and the stick: Respected and disrespected group members’ motives to engage in group-serving efforts. Personality and Social Psychology Bulletin, 32, 244 –255. Smith, H. J., Tyler, T. R., Huo, Y. J., Ortiz, D. J., & Lind, E. A. (1998). The self-relevant implications of the group-value model: Group membership, self-worth, and treatment quality. Journal of Experimental Social Psy- chology, 34, 470 – 493. Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hillsdale, NJ: Erlbaum. Tyler, T. R. (1987). Conditions leading to value expressive effects in judgments of procedural justice: A test of four models. Journal of Personality and Social Psychology, 52, 333–344. Tyler, T. R. (1994). Psychological models of the justice motive: Anteced- ents of distributive and procedural justice. Journal of Personality and Social Psychology, 5, 850 – 863. Tyler, T. R., & Blader, S. L. (2000). Cooperation in groups: Procedural justice, social identity, and behavioral engagement. Philadelphia: Psy- chology Press. Tyler, T. R., & Blader, S. L. (2002). Autonomous vs. comparative status: Must we be better than others to feel good about ourselves? Organiza- tional Behavior and Human Decision Processes, 89, 813– 838. Tyler, T. R., & Blader, S. L. (2003). The group engagement model: Procedural justice, social identity, and cooperative behavior. Personality and Social Psychology Review, 7, 349 –361. Tyler, T. R., & Lind, E. A. (1992). A relational model of authority in groups. In M. Zanna (Ed.), Advances in experimental social psychology (Vol. 25, pp. 115–292). San Diego, CA: Academic Press. Van den Bos, K. (2001). Uncertainty management: The influence of human uncertainty on reactions to perceived fairness. Journal of Personality and Social Psychology, 80, 931–941. Van den Bos, K. (2003). On the subjective quality of social justice: The role of affect as information in the psychology of justice judgments. Journal of Personality and Social Psychology, 85, 482– 498. Van den Bos, K., & Lind, E. A. (2002). Uncertainty management by means of fairness judgments. In M. P. Zanna (Ed.), Advances in experimental social psychology (Vol. 34, pp. 1– 60). San Diego, CA: Academic Press. Van den Bos, K., & Van Prooijen, J.-W. (2001). Referent cognitions theory: The psychology of voice depends on closeness of reference points. Journal of Personality and Social Psychology, 81, 616 – 626. Van den Bos, K., Wilke, H. A. M., & Lind, E. A. (1998). When do we need procedural fairness? The role of trust in authority. Journal of Personality and Social Psychology, 75, 1449 –1458. Van Prooijen, J.-W., De Cremer, D., Van Beest, I., Ståhl, T., Van Dijke, M., & Van Lange, P. A. M. (2008). The egocentric nature of procedural justice: Social value orientation as moderator of reactions to decision- making procedures. Journal of Experimental Social Psychology, 44, 1303–1315. Van Prooijen, J.-W., Gallucci, M., & Toeset, G. (2008). Procedural justice in punishment systems: Inconsistent punishment procedures have detri- mental effects on cooperation. British Journal of Social Psychology, 47, 311–324. 1179AUTONOMY AND PROCEDURAL JUSTICE Van Prooijen, J.-W., & Karremans, J. C., & Van Beest, I. (2006). Proce- dural justice and the hedonic principle: How approach versus avoidance motivation influences the psychology of voice. Journal of Personality and Social Psychology, 91, 686 – 697. Van Prooijen, J.-W., Van den Bos, K., Lind, E. A., & Wilke, H. A. M. (2006). How do people react to negative procedures? On the moderating role of authority’s biased attitudes. Journal of Experimental Social Psychology, 42, 632– 645. Van Prooijen, J.-W., Van den Bos, K., & Wilke, H. A. M. (2002). Procedural justice and status: Status salience as antecedent of procedural fairness effects. Journal of Personality and Social Psychology, 83, 1353–1361. Van Prooijen, J.-W., Van den Bos, K., & Wilke, H. A. M. (2004). Group belongingness and procedural justice: Social inclusion and exclusion by peers affects the psychology of voice. Journal of Personality and Social Psychology, 87, 66 –79. Van Prooijen, J.-W., Van den Bos, K., & Wilke, H. A. M. (2005). Procedural justice and intragroup status: Knowing where we stand in a group enhances reactions to procedural justice. Journal of Experimental Social Psychology, 41, 664 – 676. Van Prooijen, J.-W., Van den Bos, K., & Wilke, H. A. M. (2007). Procedural justice in authority relations: The strength of outcome de- pendence influences people’s reactions to voice. European Journal of Social Psychology, 37, 1286 –1297. Van Vugt, M., Hogan, R., & Kaiser, R. B. (2008). Leadership, follower- ship, and evolution. American Psychologist, 63, 182–196. Zuckerman, M., Porac, J., Lathin, D., Smith, R., & Deci, E. L. (1978). On the importance of self-determination for intrinsically motivated behav- ior. Personality and Social Psychology Bulletin, 4, 443– 446. Received April 22, 2008 Revision received September 2, 2008 Accepted September 8, 2008 � 1180 VAN PROOIJEN 
work_jmscezihkndvpnedthgmb32uvm	----	A JOURNAL OF RELIGION AND INTERNATIONAL AFFAIRS worldview JUSTICE AND THE INTERNATIONAL COURT THE NEW STUDENT MOVEMENT TOM KAHN THE CHANGING SHAPE OF CONFLICT PHILIP M . KLUTZNICK WARS OF NATIONAL LIBERATION AND CHRISTIAN ETHICS THEODORE R. WEBER PAMPHILUS JULY-AUGUST 1966 VOL 9 NO. 7-8 In its decision of July 18, the International Court of Justice has declined to pass judgment on the case of South-West Africa. This profoundly dispiriting decision has made abun- dantly clear the difficulties of constructing a code of interna- tional conduct. Law has both a coercive and an educational function. The strongest and most realistic proponents of world peace through world law recognize that laws designed to reconcile conflict among nations will be ineffective unless there are procedures and institutions to enforce them. Laws that are proclaimed but continuaUy violated without stricture or reproach are of less than no value, for they make a mockery of what they purport to uphold. But to say this is not to state the entire case. For even when laws cannot be wholly or adequately enforced they can be of some instructive value—a value that can, hope- fully, increase. This would have been the case if the Inter- national Court had taken upon itself the task of passing judgment on a case which it had under consideration for years. The issue that was before the Court is of immense significance. In declining to rule, by a narrow decision and on narrow grounds, on whether South Africa had a continu- ing mandate for South-West Africa and whether, therefore, it could extend its policy of apartheid, the World Court exacerbated a dangerous situation and diminished its own stature. As Philip M. Klutznick says in this issue of worldview, South Africa "believes that it can continue to claim its place among the family of nations and still practice a vicious doc- trine, the demeaning concept of apartheid. . . . Yet it finds few, if any, in its anxious hour prepared to stand by its side." The World Court can hardly be said to stand by its side yet there can be no doubt that its ruling has cheered and bolstered the government of Prime Minister Verwoerd. There is no longer any legal justification for arguing that the United Nations, as the inheritor of supervisory functions of the League of Nations, has the right and obligation to assess and pass judgment on South Africa's efforts to enhance the welfare of South-West Africa. This means t h a t t h e legal justification has been sundered from w h a t is commonly held to be a moral responsibility. For the population of South- w e s t Africa is 85,000 white and 488,000 non- white, a n d apartheid—which keeps t h e whites firmly in control—is under judgment. If this decision exposes the weakness of the in the magazines Robert L. Holmes of the University of Rochester philosophy department answers those who challenge "the expression by churchmen of views critical of government policy in the area of international af- fairs" in an article prepared for the June 15 issue of Christian Century. Holmes concedes that per- haps "the churchman qua churchman should stick to his business, but the business of the churchman qua Christian—there is a difference here—is to ad- dress himself with all the power of his conviction to the most pressing problems of the day. . . . No human action, political or otherwise, is immune from possible moral evaluation, and for the Chris- tian there is no conceivable moral evaluation to which his religion is not directly relevant. "Kant once said, 'We do not enter church to serve God there: we do so in order to prepare ourselves to serve Him in our lives.' Surely if serving God in our live means anything at all it means that certain actions in relation to our fellow men are enjoined and others prohibited. To suppose otherwise is to insulate an ethical code from the very subject mat- ter to which it is supposed to apply. The relevant question is not whether Christianity enjoins, permits and prohibits various things in our conduct, but what in particular it so enjoins, permits and pro- hibits; not whether the New Testament law of love is to bo translated into terms applicable to human conduct, but how it is to be so translated. To leave this question unanswered—or worse yet, unasked— is to render Christianity a shallow and ingrown shadow of religion demanding little more of us than ritualistic piety. "But suppose the question is answered by grant- ing that churchmen may speak to issues concerning national policy, provided they confine themselves to 'general moral issues'?" the author asks. The judgment 2 ivorldvieiv World Court a n d t h e difficulty of establishing an international code of conduct, it also shows the need for t h a t code and an effective Court, For when the legal paths to justice are clogged or closed those w h o are militantly determined to reach t h a t goal will search out other paths. And in their efforts conflict will necessarily be height- ened before it is resolved. J.F. here is that the churchman is less knowledgeable than the statesman in the area of specific policy de- cisions. "This view is mistaken," Holmes contends. "For once it is conceded that the churchman can properly assess actual and possible general policies, he cannot consistently be denied the further right (and, I should argue, the duty) to concern himself with the morality of specific policies, One cannot condemn or condone a general principle without condemning or condoning the particular acts and decisions subsumable under it—a point as much of logic as of morality. " , . . Granted, principles sometimes conflict and incompatible judgments may claim equal prima facie warrant. But what this shows is not that actions in the particular case are exempt from the scrutiny of Christian conscience, but that they deserve all the more circumspect examination from the standpoint of Christian morality. And it will not do to plead that since those are times of crisis we must stand quietly behind the government no matter what our convictions. For if a government's policy should be morally wrong, the prosecution of that policy may in the long-run constitute a greater threat than the crises it was designed to m e e t , . . . " Colm Brogan views with deep concern the widen- ing audience being granted in England to "The Cath- olic Marxists," and the role of a "radical Catholic" magazine which circulates the views of this school of thought. In an article in the June 24 issue of the Spectator, Brogan notes that "the end of the Vati- can Council came as a deep relief to a multitude of Catholics who had been nearly swept off their feet by the wind of ecclesiastical change. They had been faced with more changes in four years than had hap- 
work_jnvlionbffdazk7lmfrma7e3ze	----	Laura Valentini Canine justice: an associative account Article (Accepted version) (Refereed) Original citation: Valentini, Laura (2014) Canine justice: an associative account. Political Studies, 62 (1). pp. 37- 52. ISSN 0032-3217 DOI: 10.1111/j.1467-9248.2012.01006.x © 2013 The Author. Political Studies © 2013 Political Studies Association This version available at: http://eprints.lse.ac.uk/63699/ Available in LSE Research Online: January 2016 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1467-9248 http://dx.doi.org/10.1111/j.1467-9248.2012.01006.x http://www.psa.ac.uk/ http://eprints.lse.ac.uk/63699/ Canine Justice An Associative Account∗ Laura Valentini University College London Abstract: A prominent view in contemporary political theory, the ‘associative view’, says that duties of justice are triggered by particular cooperative relations between morally significant agents, and that ‘therefore’ principles of justice apply only among fellow citizens. This view has been challenged by advocates of global justice, who point to the existence of a world-wide cooperative network to which principles of justice apply. Call this the challenge from geographical extension. In this paper, I pose a structurally similar challenge to the associative view: the challenge from species extension. This says that the existing network of cooperation extends beyond the human species, to encompass some non-human animals, particularly domesticated dogs. In light of this, if one believes that (i) certain non-human animals are morally significant (i.e. objects of moral concern), and that (ii) justice applies to fellow cooperators, one should also hold that domesticated dogs are owed justice in much the same way our human fellow citizens are. I conclude by considering the implications of this argument for the associative view, and animal-rights theory. Introduction A prominent view in contemporary political theory says that duties of social justice apply only among fellow social cooperators. On this ‘relational’ or ‘associative’ view, people who stand in certain types of social relationships acquire a privileged moral status vis-à-vis one another, over and above the basic moral concern owed to ∗ I am grateful to the participants at the Manchester Metropolitan University Workshop on Political Theory and Animal Rights (Manchester, September 2010), and at the Queen’s College Symposium (Oxford, November 2010) for discussion. Special thanks are owed to Alasdair Cochrane (who patiently read multiple versions of the paper), Steve Cooke, Bob Goodin, Will Kymlicka (and his reading group on animal rights), Christian List, and the anonymous reviewers of this paper for their very detailed comments and helpful suggestions. The paper was written while I was a postdoctoral researcher at Princeton University (2009/10) and revised while I was a visiting fellow at the Swedish Collegium for Advanced Study in Uppsala (Fall 2011). I am grateful to both institutions for their support. 2 human beings as such. In particular, proponents of the associative outlook argue, people who cooperatively support the institutions of their own societies are, unlike others, entitled to social justice. This view, most prominently advocated by John Rawls (1971), has often been taken to entail a conservative stance on the scope of principles of justice. For (many) associativists, the reach of such principles is typically confined to domestic political communities, to the exclusion of distant strangers who do not qualify as fellow cooperators (Rawls 1971 and 1999, Sangiovanni 2007). This ‘narrow’ associativist view has been repeatedly challenged by advocates of global justice, who point to the globalized nature of today’s world as evidence for the existence of a world-wide cooperative network to which principles of justice should apply (see e.g. Beitz 1999 and Pogge 1989). We might call this challenge to narrow associativism the challenge from geographical extension. The challenge does not question the normative foundations of the associative view, but simply says that, consistently applied, the view delivers much more radical conclusions than many of its advocates have acknowledged. In the present paper, I pose a similar challenge to the narrow associative view, which we might call the challenge from species extension. This challenge says that taking the associative view seriously implies explicitly acknowledging that the morally relevant network of cooperation extends beyond the human species, to encompass at least some non-human animals. I make this case specifically with respect to domesticated dogs, though the logic of the argument could be extended to other animals too. In a nutshell, I argue that if one believes that (i) certain non- human animals are objects of moral concern and that (ii) justice applies to fellow cooperators (provided they are objects of moral concern), then one should also 3 believe that domesticated dogs are owed justice in much the same way our human fellow citizens are. The contribution of this paper is twofold, to animal ethics and to political theory. First, the paper illustrates how a relational approach to morality may apply to non- human animals, specifically in connection with the duties we owe them on grounds of justice. This is of value insofar as much advocacy of animals’ ethical status focuses on the type of creatures they are (i.e. sentient beings with lives to lead), rather than on the ways they relate to us.1 To be sure, some thought has already been given to the responsibility-generating character of special relations between humans and animals. However, emphasis on contextual relations is still relatively marginal in the literature and has been often accompanied by a rejection of the justice-based approach adopted here, in favour of what might be termed an ‘ethics of care’. Until recently, the key normative concern of ‘relational’ views has been not so much giving animals ‘their fair share’, but responding to their emotional and physical vulnerabilities2 (see, however, Coeckelbergh 2009 and especially Donaldson and 1 For instance, see the mission statements of the UK party Animals Count; The German Animal Protection Party, and the Dutch Party for the Animals. 2 Mary Midgley (1983) grounds animals’ moral status in their emotional abilities and capacity to create social ties with humans, with whom they share a ‘mixed community’. J. Baird Callicott (1992) defends a somewhat similar view, which emphasizes how our moral obligations towards domesticated animals radically differ from our obligations towards wild ones, which do not belong to our communities. For a critique of this perspective see Hadley (2007). Feminist defences of non- human animals’ moral standing have also focused on animals’ ability to feel emotions and their susceptibility to domination by humans (see Donovan and Adams 2007). For another relational view, according to which nonhuman animals are owed duties of help/assistance in virtue of their contextual vulnerability to, and dependence on, human beings, see Palmer (2010). Finally, Anderson (2004) defends a pluralist perspective on the moral status of non-human animals, with a particular emphasis on their social membership and relationships of reciprocity with humans. 4 Kymlicka 2011, for very important exceptions).3 Second, the paper shows that the associative account of justice, so prominent in contemporary political theory, has potentially radical implications, which its proponents have by and large failed to acknowledge, and which they might not want to accept. In sections 1 and 2, I explain the two basic premises of my argument: (i) non- human animals are objects of moral concern, and (ii) social justice is owed to fellow co-operators (provided they are objects of moral concern). In subsequent sections, I illustrate how, if these premises are endorsed, the nature of our relationship with domesticated dogs should lead us to conclude that they are owed justice as much as human fellow citizens are. Specifically, in section 3, I give a brief descriptive account of how relations between humans and dogs have evolved over millennia, and consider dogs’ role in modern society. I argue that most domesticated dogs are an integral part of our existing schemes of cooperation and are therefore entitled to more than the minimal concern all animals have a right to. In section 4, I offer a tentative account of what giving dogs their due requires. In section 5, I consider an important objection, and I then conclude with a few remarks on what the 3 Sue Donaldson and Will Kymlicka’s book, Zoopolis, was published when this article was nearing completion, and I am therefore unable to discuss it in detail. The book argues that the domestication of animals has created relations of membership that generate distinctive claims of justice. Specifically, Donaldson and Kymlicka (2011) apply liberal citizenship theory to the debate on animal rights, bringing notions such as ‘sovereignty, denizenship, migration, territory, membership and citizenship’ to bear on it (p. 14). Different animals, they suggest, relate to our societies in very different ways (e.g. as denizens, citizens, foreigners etc.), and this qualifies them as holders of correspondingly different sets of rights. To the extent that relationships of fellow citizenship are seen as relationships among fellow cooperators, the (much more comprehensive) approach Donaldson and Kymlicka defend is very much in line with the associative account I am exploring here. In both of our cases, there is an attempt to apply conceptual tools developed in another area of political philosophy (i.e. liberal global justice in my case, liberal citizenship theory in Donaldson and Kymlicka’s) to the debate on animal rights. 5 extensibility of duties of justice to non-human animals implies for the associative account itself. Before getting started, let me clarify that I do not aim to defend premises (i) and (ii) – about animals’ moral status and associative justice – but only to show that their conjunction, coupled with some empirical facts, has surprising implications for our thinking about justice and animals’ (specifically dogs’) entitlements. Since such premises are plausible and, in fact, widely endorsed, my lack of commitment to them should not undermine the contribution of the paper. 1. Non-human Animals as Objects of Basic Moral Concern The claim that we owe particular associative obligations to dogs presupposes not only an associative account of justice, but also the view that non-human animals (including dogs) are appropriate objects of moral concern in the first place. To see this, consider the following example. Although I am engaged in a sort of cooperative (perhaps exploitative) relation with my computer, the suggestion that by virtue of this relation I owe justice to it seems absurd. Why? Not because of a flaw in the associative perspective, but rather because my computer is not the sort of entity to which moral concern is owed, or at least so many would think.4 Animals, however, are unlike computers in that they are sentient creatures with lives to lead (Francione 2004). Although they lack the higher-order capacities for moral reasoning that would qualify them as subjects of moral responsibility, this does not automatically disqualify them as appropriate objects of moral concern 4 Some might disagree, however. For instance, Coeckelbergh (2009) thinks that an associative/contractarian perspective can be developed prescinding from intrinsicist claims about creatures’ fitness for having moral status. For this reason, he puts forward the interesting and controversial view that contractarian/associative justice extends even to plants and robots. 6 (Regan 1983). Within the human realm, we routinely distinguish moral responsibility from moral concern. Small children and the severely mentally disabled lack the necessary features to count as subjects of moral responsibility, but we regard them as worthy objects of moral concern. These kinds of observations have led many theorists to conclude that non-human animals count as members of the moral community. For instance, consequentialists have argued that animals’ sentience – their capacity to feel pain and pleasure – makes them appropriate objects of moral concern, whose well-being should be given weight in the moral evaluation of our actions (see e.g. Singer, 1990). Deontologists, on the other hand, have insisted that (at least some kinds of) non-human animals are appropriately regarded as bearers of fundamental rights (see e.g. Regan 1983 and Francione 2000). Since my primary focus here is on the associative approach to justice, and this approach is situated within a broadly liberal-deontological perspective, I more narrowly concentrate on deontological defences of animals’ moral status. I therefore interpret premise (i) of my overall argument – that animals are objects of moral concern – in deontological terms, whereby the relevant concern is expressed in the form of rights, and duties correlative to them. Different ethicists have focused on different characteristics exhibited by animals as the basis for granting them rights. Tom Regan (1983), for instance, has argued that to the extent that animals are conscious ‘subjects-of-a-life’, for whom things can go better or worse, they have inherent value and should therefore be regarded as right-holders. Francione (2000), by contrast, has grounded animal rights in animals’ sentience. Other animal-rights advocates, such as Rachels (1976), have placed 7 emphasis on animals’ having interests.5 For present purposes, I need not worry about these differences. Readers can simply choose the account they find most congenial. All I need to assume is a broad defence of animals’ entitlement to basic, non-relational moral concern. Granted that such a defence is available, what does this basic moral concern amount to? Two universal duties are generally acknowledged within deontological moral theories: a very stringent duty not to harm others, and a less stringent duty to help them when they are in need, provided this is not too costly to oneself (Rawls 1971, p. 114). These are ‘natural’ duties, which fall upon moral agents regardless of their voluntary actions or the particular relationships in which they stand vis-à-vis one another.   The duty not to harm is universal and correlative to a universal right not to be harmed. This means that every moral agent is under a duty not to harm (e.g. physically injure, steal from, harass) every other moral subject. In turn, every moral subject has an entitlement to not being harmed by any other moral agent. The duty to help the needy has a different structure. Although it is universal, i.e. it binds every moral agent, it is not correlative to a universal right. It is not the case that every moral agent is under a duty to help every other needy creature, a demand 5 Note that what follows from animal rights at the level of policy varies from theorist to theorist. Some animal-rights ethicists broadly subscribe to what is known as ‘abolitionism’, namely the view that the use of animals on the part of humans is morally unacceptable. See e.g. Regan (1983) and especially Francione (2000, 2010 with Garner). Other ethicists, however, are less drastic about the implications of conferring rights on non-human animals. See e.g. DeGrazia (1996 and 2002), and Rollin (1981). There are then those, like Garner (2010 with Francione), who adopt a more gradualist approach, and argue for the regulated and humane use of animals either per se, or as a fruitful strategy to achieve abolitionist goals. I thank an anonymous reviewer for suggesting to clarify this. For a general overview of the debate, from which I have learnt, see DeGrazia (1991). See also section 5, below, for further discussion of the implications of conferring rights on animals. 8 that would clearly be impossible to satisfy. Instead, when it comes to duties to help the needy, agents have a fair amount of discretion in determining when and how to discharge them. While breaching such duties clearly implies wrongdoing, it never amounts to a rights violation (O’Neill 1996, chap. 5).6 Since animals are objects of moral concern, they are addressees of the duty not to harm and of the duty to help. Crucially, these duties are baseline, non-relational duties and do not exhaust the realm of moral obligation. There are indeed many so- called special duties, correlative to rights, which we owe to specified others in particular and bear either by virtue of voluntary acts that we have performed – e.g. promises or contracts – or by virtue of the particular relations in which we stand vis- à-vis other people – e.g. our friends, families, colleagues etc. (see Hart 1955). For instance, a food supplier’s duty to deliver fresh produce on a daily basis is not correlative to a universal right, but only owed to those customers with whom he has signed a contract. Similarly, a mother’s duty to take care of, and protect, her children is owed to her children, and only to them. More broadly, family members or groups of friends have duties towards each other that they do not have towards anyone else, precisely by virtue of the special relationships in which they are involved. Notice that these special duties are not a mere specification of the natural duty to help those in need. Instead, they are duties correlative to rights which pertain to specific relations and are structurally similar to the duty not to harm. Like this duty, 6 Cf. the more general distinction between justice and beneficence. 9 special duties are very stringent and owed to particular individuals who have a right to their performance.7 As anticipated, a prominent strand within political philosophy argues that the enforceable duties of justice fellow citizens owe one another are of this weighty, relational, kind. This leads me to expound the second premise of the argument: the associative account of justice. 2. The Associative Account of Justice In contemporary liberal theorizing, the ‘associative’ account of justice is most commonly traced to John Rawls’s work. His principles of justice are said to apply to society understood as a ‘system of cooperation’ for the production and distribution of goods each citizen needs in order to lead a worthwhile life (Rawls 1971). On this associative account, we owe more to our fellow citizens than we owe to distant strangers because citizens are fellow cooperators within societal arrangements. Society provides the background conditions in which individuals can lead flourishing lives, and by working to sustain this background, each citizen is owed a ‘fair return’ for what he/she contributes. Principles of social justice enforced by the state are meant to provide this fair return (Sangiovanni 2007, esp. pp. 26-7). Unlike fellow citizens, distant strangers are not part of a joint collective enterprise, and are therefore owed only basic moral concern. Since we do not contribute to shaping the background conditions in which they live, so the argument goes, we owe them relatively little. (Of course, as I have already mentioned, this assumption is less and less tenable in an increasingly globalized world.) So long as 7 Indeed, we often characterize breaches of special duties in terms of harm. For instance, a mother who (culpably) fails to provide for her daughter’s subsistence may be said to harm her (McGrath 2005). But cf. Donaldson and Kymlicka (2011, Introduction). 10 we refrain from harming them, and help them when they are in need at reasonable costs, our behaviour towards them is beyond moral reproach (cf. Rawls 1999). The conclusions reached by the associative account in the case of international justice may strike some as unpalatable, but we can leave them aside for present purposes. What we need to establish is instead how ‘fair returns’ for social cooperation between members of the same political community are to be determined. To do so, liberals often resort to a ‘universal justifiability’ test. From a liberal point of view, schemes of social cooperation are fair (i.e. just), only to the extent that they are justifiable in the eyes of all those participating in them.8 Although it is difficult precisely to establish what would positively fulfil the requirement of universal justifiability, we can still confidently identify circumstances in which the requirement falls short of being satisfied. For instance, a society that fails to protect some of its citizens’ liberty, political, or economic rights is unlikely to qualify as a fair scheme of cooperation. How could it be justified to everyone participating in it? Agents whose fundamental rights are disregarded have no reason to join the would-be cooperative scheme. From their point of view, the scheme is exploitative and unacceptable. Their contribution to it is not properly acknowledged. That said, there may be multiple societal arrangements meeting the criterion of universal justifiability, especially when it comes to socio-economic justice. Different resource-distribution patterns, for instance, might meet a broad universal 8 Consider, for instance, Rawls’s (1971) original-position thought experiment, or T.M. Scanlon’s (1998) reasonable-rejectability test. For discussion of the original position in the context of animal rights see Rowlands (2002, ch. 3) and Hilden (2007). 11 justifiability test, provided each person has enough to lead a worthwhile life (see Rawls 1999 on ‘reasonably just’ societies, and Valentini 2011, pp. 173-8). For present purposes we need not settle these complex issues. All we need to assume is that a system of cooperation is fair to the extent that it is in principle acceptable in the eyes of all participants and that, even on a parsimonious account of what this requires, the obligations holding between fellow citizens are ‘thicker’ than standard natural duties. In particular, all fellow cooperators are entitled, vis-à-vis one another, to the social conditions necessary to lead decent lives. These will include at least liberty and political rights as well as rights to ‘sufficient’ economic resources.9 If some of the associates lack the objects of these rights, we can immediately infer that they are being treated unjustly. That is, they are not given fair returns for what they contribute.10 But what does the associative account imply for non-human animals? At first sight, one might say, not much. After all, non-human animals have their own habitats and cooperative relationships outside human society, and are therefore not appropriate recipients of associative justice. A moment’s reflection, though, shows that this conclusion would be too quick. At least some non-human animals, namely domesticated ones, are very much part of our lives within society, in some cases even as friends or family members. In light of this, should we think of them as 9 For those who find this last requirement too strong, it could be replaced with a right to meaningful opportunities for subsistence. 10 It might be objected that what counts as a ‘fair return’ should depend on what exactly each has contributed. On this view, the talented, hard-working and skilled deserve more than others. Proponents of the associative account, however, find this line of reasoning flawed. This is because one’s talents and skills, as well as the market rewards they command, are to a large extent products of the background social structure to which everyone contributes. In light of this, the justification for giving the skilled and talented higher returns considerably weakens. See Sangiovanni (2007, pp. 25- 6), cf. Rawls (1971). 12 fellow associates entitled to justice? In what follows, I answer this question specifically in relation to domesticated dogs (cf. Anderson 2004, p. 287). 3. Dogs and Human Beings: A History of Cooperation To substantiate the claim that dogs qualify as fellow cooperators, it is worth briefly sketching the history of their relations with humans (on this, I am indebted to McNeely and Lindquist 2007, pp. 101-4).11 This history is long, constantly evolving, and contested. Dogs are descendants of wolves, wild animals that live and hunt in packs. With the formation of the first human communities, wolves and humans came into contact and started to benefit from this connection. By living in the vicinity of humans, wolves were able to take advantage of food waste and unwanted leftovers as a source of nutrition, while humans could rely on wolves’ superior predatory instincts and benefit from their assistance in hunting (see Groves 1999). Those wolves that happened to be least aggressive and most docile were particularly successful at interacting with humans and gained the greatest selective advantage. They were best adapted to, and most preferred by, the humans they interacted with. Over generations, this led to an evolutionary process in which what used to be wolves became what we now call dogs. With the establishment of societies based mainly on farming and agriculture, humans began to use dogs no longer primarily in hunting but to transport heavy materials, defend their possessions, herd livestock, and so forth. More recently (arguably), humans also started to appreciate dogs simply for their companionship, 11 Like any reconstruction of human-dog relationships, the one I am about to offer is somewhat controversial. For instance, on some accounts, dogs were first adopted as companion animals, and only later used in hunting. Thanks to an anonymous reviewer for pointing this out. 13 as reflected in the epithet of man’s ‘best friends’ (McNeely and Lindquist 2007, pp. 101-4). The history of cooperation between humans and dogs continues today. Dogs herd cattle, help walk the blind, guard our property, participate in rescue operations, work with the military and the police (among other things as sniffer dogs detecting illegal substances), assist in psychological therapies and are used in hospitals to relieve patients' anxiety.12 These appear to be tasks that warrant granting them the status of cooperating members of society. Dogs, it seems, have jobs and contribute to our societies’ functioning and prosperity in often obvious and direct ways. For this reason, shouldn’t they be given at least some of those rights and benefits that human citizens typically enjoy (mutatis mutandis)? Someone might object that talking of cooperation in the case of dogs is misleading.13 Cooperation only exists when different agents voluntarily come together to pursue a common goal. Our relationships to dogs, however, can hardly be said to fit this description. We are responsible for domesticating them, and we now use them in pursuit of our own goals. Dogs, therefore, are not cooperating members of society, instead, they are exploited members of society.14 True, human beings have turned wolves into domesticated dogs, and our objector might be right to suggest that there is something morally problematic about this original act of domestication (but cf. Groves 1999). But even so, dogs as we know them are very different from wolves and can no longer easily survive in the wild. 12 As the Australian Companion Animal Council (2009) states ‘Dogs serve us not only as companions but also as workers [... such as] guide dogs for the blind, hearing and assistance dogs for the disabled, sniffer dogs used by police and customs, and farm dogs used for stock work.’ 13 Thanks to Steve Cooke for raising this objection. The objection is broadly in line with the concerns expressed by so-called ‘abolitionists’. See note 5. 14 A similar objection is briefly raised and answered in Coeckelbergh (2009, p. 77). 14 They have become humanized in so many ways that, arguably, their natural habitat is human society. Abandoning a Chihuahua, a Dalmatian, or even a Great Dane into the woods would in all likelihood result in their death. From the fact that, due to our original act of domestication, dogs cannot but participate in our societies, does it also follow that their participation is intrinsically exploitative? It does not. To see this, consider an analogous case drawn from the human world. Imagine a capitalist society so far removed from other communities that citizens have no realistic opportunity to leave it, and in which free market forces determine the division of benefits and burdens of social cooperation. Lacking the necessary means to lead a decent life, workers in our society are forced to accept any job offers, even extremely unfair ones (see Cohen 1983). A society so organized would not be regarded as just from the perspective of any plausible liberal-deontological approach. Some of its members are obviously exploited, their cooperation is not appropriately rewarded. However, if the division of benefits and burdens were regulated by principles of justice, no exploitation would occur, and our society would appropriately qualify as a cooperative scheme (even though citizens would have no realistic opportunity to leave it). The case of dogs is not dissimilar from that of workers in the society I have just described. Dogs de facto cooperate and, like our workers, have little alternative to living in society. This, however, does not entail that their cooperation must be inevitably unfair or exploitative. In fact, the whole point of applying the associative account to dogs is to make sure that their cooperation is acknowledged and appropriately rewarded, so that our relations to them are not of an exploitative nature. That said, another objector might complain that only a relatively small number of dogs plausibly count as cooperating members of society. Most domesticated dogs 15 (literally millions of them) are mere companion animals, without proper ‘jobs’. Does this undermine the claim that dogs are fellow co-operators? I doubt so, for two reasons. First, from the liberal-deontological perspective assumed here, numbers cannot be given such moral weight. The (alleged) fact that only some dogs are cooperating members of society does not invalidate the claim that justice is owed to them. Second, and most importantly, the claim that only very few dogs cooperate in the required manner may be challenged by noting that having an officially recognized job is not a necessary condition to count as a productive member of society. Stay-at-home mothers and housewives are undoubtedly crucial for society’s prosperity and continued existence, yet they do not hold what were traditionally regarded as conventional ‘jobs’. As most now acknowledge, however, this should not prevent such women from being appropriately rewarded for their efforts in raising children and providing a healthy family environment. Doing otherwise would amount to unfair discrimination, if not full-blown exploitation (see Rawls 2000, pp. 162-8). Similarly, even dogs that are not classified as ‘working dogs’ provide a significant contribution to society’s prosperity and good functioning. As pointed out by the Australian Companion Animal Council (ACAC), companion ‘[d]ogs can help to lower stress, alleviate loneliness, improve health, and encourage people to exercise more and enjoy the outdoors. They improve feelings of safety – both in the home and in public places. Dogs act to break down the barriers in society, and help people to meet and make friends.’ Some of the functions described in the previous passage are often performed by professionals, such as personal trainers and psychotherapists. If they count as cooperating members of society, why should ‘companion’ dogs not also enjoy a similar status? After all, low stress, physical exercise, good social relationships, and 16 feelings of safety are all important components of a well-functioning social system.15 To the extent that dogs contribute to providing these goods, they should be appropriately rewarded. Of course, there may still be ‘difficult’ or ‘uncooperative’ dogs (cf. McNeely and Lindquist 2007). However, just as the existence of some humans who cannot cooperate in society (e.g. psychopaths or the severely disabled) does not disqualify human beings in general from the status of fellow cooperators, similarly the existence of problematic dogs should not make us blind to the fact that many dogs do in fact cooperate with us. In light of this, what enforceable protections and rights are commensurate with dogs’ status as cooperating members of society? 4. Canine Justice: Giving Dogs their Due As one writer puts it, ‘the domestic dog exists precariously in the no-man’s-land between the human and non-human worlds. It is an interstitial creature, neither person nor beast, forever oscillating uncomfortably between the roles of high-status animal and low-status person’ (Serpell 1995, p. 254 quoted in McNeely and Lindquist 2007, p. 104). Although there exist laws against cruelty towards non- human animals, including dogs, these are far from being fully reflective of their status as cooperating members of society. Indeed, as animal-rights advocates have long-been complaining, existing laws fall short of acknowledging animals’ status as right-holders in the first place. In what follows, I offer an illustrative account of what giving dogs their due as (i) right-holders and (ii) fellow cooperators demands.16 In doing so, my aim is to showcase the potential implications of the associative 15 For a survey of the benefits and harms of companion animals in general see Podberscek (2006). 16 This distinction is drawn for analytical purposes, and there is bound to be overlap between these two sets of requirements in the case of dogs (and cooperating animals more generally). 17 approach. I am aware, however, that a comprehensive treatment of the issue would require a much fuller discussion than I can provide here. 4.1 Dogs as Right-Holders in General17 First, dogs ought not to be regarded as mere property. By considering dogs as property, we implicitly treat them as objects, which may be used by their owners (see Hilden 2007, and Francione 2004). To be sure, as Cochrane (2009a), for instance, has pointed out, to the extent that the ownership relation is suitably qualified (i.e. to the extent that strict limits are imposed on how the object of ownership can be used), treating animals (including dogs) as property is morally acceptable. That is, so long as dog owners bear certain obligations towards their pets, the ownership relation cannot be so detrimental to them. There is no conceptual inconsistency in jointly claiming that (i) A owns X and that (ii) A has a duty of care towards X. This seems to be the view underlying the 2006 UK Animal Welfare Act (section 9), which explicitly establishes the responsibility of the pet owner to ‘take such steps as are reasonable in all the circumstances to ensure that the needs of an animal for which he is responsible are met to the extent required by good practice’. Although it is correct to point out that property relations do not per se preclude the possibility of treating animals as objects of moral concern, they do run counter their status as right-holders. Considering dogs a piece of property partly obscures their moral status, making the presumption that they are ‘things’ to be used more plausible (see Francione 2004). If dogs are mere property, then it is rhetorically easier to justify giving them to shelters, abandoning, and neglecting them. 17 The changes I propose under this heading are relatively familiar ones in the literature. In particular, my account here is indebted to Hilden (2007, pp. 19ff.). 18 This is reflected in the comparatively light forms of punishment risked by those who ignore their duties towards non-human animals in general, and dogs in particular. Even in the much-welcomed 2006 Act mentioned earlier, fines for neglect and cruelty towards non-human animals go up to just 20000 GBP, and periods spent in jail up to 51 weeks (BBC 2011). These sanctions appear strict if we conceptualize them as responses to failures to abide by duties towards one’s property. However, they appear much less demanding when we consider them as responses to rights violations. We would be shocked if the maximal penalty for killing or abusing a child amounted to just 51 weeks in jail. If we take seriously the idea that dogs qualify as holders of rights, current legislation seems excessively tolerant. To fully recognize dogs’ status as right-holders in our legal system, we must stop framing our relationship with them in terms of property (Hilden 2007, pp. 19-20). Needless to say, if dogs publically acquired the aforementioned status, many widespread practices currently considered acceptable, such as using them for meat consumption (in those countries where this is an accepted habit) or in scientific experimentation, would be outlawed. It is clear that such practices violate the ‘basic’ right not to be harmed, which, according to premise (i), non-human animals enjoy. As I have argued, however, dogs are also fellow associates and therefore recipients of justice (according to premise (ii)). What, then, do we owe them in this respect? 4.2 Dogs as Fellow Cooperators Entitled to Justice From a liberal perspective, associative justice requires respect for persons’ liberty, political, and economic rights. However, conferring on dogs the very same rights we typically ascribe to humans – such as the right to vote, to freedom of speech, to 19 education, to hold public office etc. – would be bizarre to say the least. In order to understand what giving dogs their due qua fellow cooperators demands, we cannot simply extend principles of justice for humans to the ‘canine’ realm. Instead, we need to consider how those principles are arrived at in the human case, and then ask whether a similar method could be adopted in the case of dogs.18 As we have seen, in contemporary liberal theory, principles of justice typically emerge from hypothetical consent tests. We look at society and ask: What principles could all citizens accept as giving them fair returns for their contributions? In other words, we ask: What principles could be justified in the eyes of all? As Jeremy Waldron says ‘...[liberal] commitments generate a requirement that all aspects of the social [order] should either be made acceptable or be capable of being made acceptable to every last individual’ (1987, p. 128). Although there may be reasonable disagreement about the exact output of some such thought experiment (e.g. on whether a society can only be just if it adopts Rawls’s difference principle), certain core liberty, political, and economic rights must be guaranteed for a political system to count as just. Indeterminacy, in this context, does not make us completely unable to say what justice demands. A sceptic might suggest that indeterminacy does become fatal when we move to hypothetical-consent tests in the case of dogs. Indeed, while we can imagine what is acceptable or not from the viewpoint of human beings in general, resorting to hypothetical consent in the case of non-human animals might seem pointless, ‘suggesting no clear scenario that would assist our thinking’ (Nussbaum 2004, p. 301). It is sometimes hard to put oneself into other people’s shoes, let alone into the 18 This is a ‘logic of extension’ mirroring the one often used, mutatis mutandis, in the debate on global justice. 20 ‘paws’ of creatures belonging to another species (see Hilden 2007, part II and Rowlands 2002 for critiques of this argument). This is a warranted worry, but not one that undermines the project of making sense of what it is to give dogs their due qua cooperating members of society. Even though it is hard, perhaps impossible, to gain profound knowledge of a dog’s psychology, of its deepest beliefs and desires, we can still form a reasonably clear picture of what conditions must be satisfied for dogs to lead decent lives. Dogs cannot ‘directly’ speak their minds, but their behaviour can be interpreted, and their interests reasonably inferred from it, and from their biological makeup more generally (Donaldson and Kymlicka 2011, pp. 108-12, Rowlands 2002, pp. 66-8, Hilden 2007 pp. 17ff.). This is not to deny that, since dogs do not belong to our species, their needs and interests are bound to remain somewhat opaque to us. But opacity is not the same as inscrutability, and so long as we can at least partly understand dogs’ interests, we ought to provide them with the necessary conditions to lead decent lives on grounds of justice. That is, society should be organized in such a way that not only human beings, but also dogs, could consent to it. For example, we can reasonably assume that, like children, dogs have an interest in generating social bonds of affection as members of a pack or family. They have an interest in bodily integrity and freedom from violence, as well as in having access to food, shelter, and medical care. They have an interest in enjoying sexual pleasure, and in living in an environment where they can move reasonably freely (cf. Nussbaum 2004, pp. 313-17). These are all interests we can plausibly assume dogs have, and which would have to be secured for dogs to consent to living in society, if they could. 21 Of course, making our societies more sensitive to dogs’ needs is a hard task to accomplish. In what follows, I only offer some candidate examples of the sorts of reforms that ought arguably to be undertaken to realize ‘canine justice’.19 To begin with, since there is a strong correlation between the satisfaction of dogs’ interests (in bodily integrity, nutrition, health care etc.) and the families of which dogs become members, those who wish to adopt a puppy (or an adult dog) should be adequately checked. In the same way in which young children are only entrusted to families deemed capable of caring for them, so too dogs should only be entrusted to humans deemed capable of providing them with a healthy and safe environment (cf. Hilden, pp. 21-2). However, to make sure that ‘human guardians’ adequately take account of their dogs’ interests, broader social changes are required, setting limits to what is deemed acceptable animal treatment. For instance, seemingly harmless habits, such as having one’s dog compete in a beauty contest, can be revealing of, or conducive to, a problematic ‘commodifying attitude’ towards the animal, with detrimental effects on its health and bodily integrity. For example, there is little doubt that ‘plastic surgery’ performed on dogs, in the from of ear-cropping and tail-docking, is very often motivated by human perceptions of beauty which have little to do with dogs’ own well-being. In recognition of this, the 2006 UK Animal Welfare Act (sections 5 and 6) has precisely banned such practices.20 Similarly, the search for purity of breed, to ensure that dogs meet specified aesthetic standards, is often harmful to the health and well- 19 For a more general and comprehensive discussion of what treating domesticated animals as citizens would require, see Donaldson and Kymlicka (2011, sec. 5.4). 20 Specifically, the Act bans cutting dogs’ tails for cosmetic reasons, but not in the case of ‘working dogs’. 22 being of the animal itself.21 Moreover, a concern with dogs’ bodily integrity and their interest in experiencing sexual pleasure would plausibly lead to banning permanent sterilization – although I venture the hypothesis that non-invasive contraceptive methods might be used for birth-control purposes (but cf. Fusfeld 2007 for a different view). A ‘caninely just’ society should not only ban social practices that are explicitly harmful to dogs, but also make sure that the environment in which they live is sufficiently hospitable to them. This requires attention at the level of urban planning, making sure that dogs have access to designated areas protected from traffic in which to move freely, socialize, and play (ACAC 2009). Finally, dogs’ interests should be given official representation within society, so as to secure their protection over time. Although, as mentioned earlier, dogs cannot be given the right to vote or to hold public office, appointed representatives may act on their behalf at both the political and the legal level, making sure that their status as objects of moral concern is adequately defended (see Garner 2005, Nussbaum 2004 and Hilden 2007). More could be said, but if at least some of these arguments are correct, we can conclude that giving dogs their due would involve some relevant changes in the way society is organized. This, in itself, should come as no surprise. Indeed, perhaps even more significant changes appear to be needed when we think about what a ‘humanly’ just society requires. There is a big gap between most societies in the world and the ideal of a just social system liberal political philosophers advocate. 21 On this, see the work of The Royal Society for the Prevention of Cruelty to Animals (RSPCA), http://www.rspca.org.uk/allaboutanimals/pets/dogs/health/pedigreedogs/actions and http://www.rspca.org.uk/media/news/story/-/article/PuppiesBredForLooksAreBornToSuffer_Dec11 (last accessed 3/10/2012). 23 In connection with this, it is crucial to emphasize that the ‘caninely just’ society envisaged in this paper is an example of an ‘ideal-theoretic’ scenario (Rawls 1971, pp. 8-9, and Simmons 2010 for discussion). In the same way in which change towards a more just society for humans takes time, change towards a more just society for dogs (let alone other animals) is also a matter of long and gradual reform.22 The policies discussed here could not be implemented straightaway, in our non-ideal world. For instance, in an ideal world, no dog would have to be euthanized in shelters because of overpopulation. However, it may well be that, due to the constraints of the non-ideal world in which we live (where too many dogs are abandoned, and where too little is invested in shelters) euthanizing some dogs might be a sadly inevitable solution, at least in the short term. Or else, in an ideal world, dogs would not need to be permanently sterilized. However, as a transitional, non- ideal measure for the world in which we live, permanent sterilization might be the best we can do to safeguard dogs’ interests. Unless alternative contraception methods are introduced as a way of ensuring birth control, the number of undesired and neglected animals will only increase. Even though a society that gives dogs their due is still a somewhat distant ideal, and many non-ideal measures would have to be undertaken to reach it, we might want to ask whether such a ‘caninely just’ society would inevitably result in greater injustice for humans. Although I am in no position to provide a well-grounded, conclusive answer to this question, I think there are some reasons for optimism. Many of the reforms that would make society more just for humans would also make it more just for dogs, and vice versa. 22 Thanks to an anonymous reviewer for asking me to elaborate on this point, and suggesting some of the examples that follow. 24 As I have mentioned earlier, sensitivity to dogs’ interests would have an impact on urban planning, increasing the number of parks and recreational areas sheltered from traffic available to both animals and humans. Similarly, a more just society for humans, in which everyone has adequate opportunities to lead a decent life, would in all likelihood be ‘friendlier’ towards dogs too. In such a society, the levels of violence, poverty and frustration among the general population would be lower than in the status quo, thereby reducing the risk for dogs themselves to be mistreated, subjected to violence, or simply neglected. In short, it appears reasonable to conjecture that human and canine justice would work together in synergy. After all, on the associative account, a society that is just to dogs and humans is, by definition, mutually beneficial for both.23 5. Objection In this section, I consider an important challenge to the account presented here. The challenge points to a perceived tension between the two main premises of the argument: (i) animals are objects of moral concern and (ii) justice applies to fellow cooperators (provided they are objects of moral concern). The worry is that, once we grant animals a set of rights on deontological grounds – in accordance with premise (i) – we are immediately led to embrace an ‘animal liberation’ perspective according to which cooperative relations between humans and animals violate those very rights. If the relationship of cooperation ends – as recommended by premise (i) under the present demanding interpretation – the associative account implies that 23 Notice that this conjecture is once again stated at the level of ‘ideal theory’. There are of course trade-offs to make in the status quo, where human and animal interests have to be balanced against each other. This is an extremely complex question I cannot address here. For discussion see Cochrane (2007) and Aaltola (2005). 25 animals ‘liberated’ from human dominion fall outside the scope of justice. This, in turn, amounts to the counter-intuitive view that animals are owed justice only when they are being exploited.24 This objection is based on a radical reading of the implications of premise (i) and an equivocation between exploitation and cooperation.25 While it is certainly true that conferring rights on animals prohibits us from treating them merely as means, it does not prevent us from treating them as means, provided we also treat them as ends in themselves.26 This is a familiar thought from the Kantian-deontological tradition and is clearly in line with what we consider morally acceptable treatment of other humans. Consider the relationship between a professor, Martin, and his research assistant, Bob. It is clear that, by giving Bob a set of calculations to perform, Martin uses him as a means to something: the results he needs for the paper he is writing. However, provided Martin treats Bob with respect, does not overburden, threaten, or grossly underpay him, we have reason to regard their relationship as perfectly morally acceptable. Martin treats Bob as a means but, crucially, also as an end in himself. By contrast, the relationship between a (non-benevolent) master and his slaves, or between the owner of an aggressive multinational corporation and his sweatshop workers, is morally objectionable precisely because the former use the latter as means, without also treating them as ends in themselves. What is going on in these 24 I am grateful to an anonymous reviewer for raising this objection. 25 For an argument that animal rights need not imply animal ‘liberation’, see Cochrane (2009b). 26 This is indeed in line with the original formulation of Kant’s categorical imperative. Although, interestingly, when adopted to characterize the animal-rights position, this formulation at times loses the qualification ‘merely’, thus turning into an absolute ban on using others (including animals) as means. See e.g. Sunstein (2004, p. 5). 26 cases is exploitation, rather than cooperation (recall my earlier discussion of a capitalist society). Similarly, conferring rights on dogs does not automatically prevent us from engaging in cooperation with them, provided such cooperation is fair and non- exploitative, i.e. provided we treat them not merely as means, but also as ends in themselves. Much of this paper has been precisely concerned with sketching what this might require. Moreover, the claim that ‘absent relationships of cooperation, animals are not owed justice’ is not at all counter-intuitive if we keep in mind that justice does not exhaust the space of moral obligation. Wild animals, with which we entertain no cooperative relations, still maintain a right not to be harmed, and a right to assistance. Humans should therefore refrain from killing or injuring wild animals, and from destroying their natural habitats.27 Similarly, humans are under a duty to assist wild animals, when they can help them at reasonable costs.28 What wild animals do not have a right to, on the associative account, is a fair share in their cooperative endeavours with us, and this is simply because they are not fellow cooperators. While Swedes certainly have duties not to harm Australians, and to help them if they are in need, we typically do not think that Australians are entitled to Swedish health care or education. Why is that? The answer given by the associative account is: ‘because they are not part of the same society-wide scheme 27 This should be qualified by adding ‘unless they are posing an immediate threat to their own lives and well being’. 28 This does not imply that we are under a duty constantly to search for wild animals in need (as we are not under any such duty in the case of human beings). Moreover, this does not mean that we should try to save preys from their predators. This sort of interference could not count as a way of discharging the duty to help. By helping the prey, we would end up harming the predator. Cf. Cochrane (2009b, pp. 675-6), Callicott (1992). Thanks to an anonymous reviewer for pushing me to clarify this point. 27 of cooperation as the Swedes, and are thus not entitled to a fair share of its benefits’ (Sangiovanni 2007, pp. 31-2). If one thinks that this stance is reasonable enough in the case of human beings (again, suspending complications due to globalization), there is no apparent reason why one should not think of it as reasonable in that of animals. In sum, a belief in animal rights – as per premise (i) – does not make fair cooperation between humans and animals impermissible, and allows us to show appropriate moral concern towards animals even when they exist outside our cooperative schemes. Conclusion I have explored the question of what, if anything, might be owed to non-human animals from the perspective of a popular, associative account of justice. Focusing on dogs in particular, I have suggested that justice requires their interests to be taken into account in the design of laws and policies within our political communities. Beyond this specific conclusion about the moral status of domesticated dogs, the paper has broader implications for both the debate on animal rights, and that on the associative account of justice. Regarding the former, by showing how an associative perspective can be extended to the case of non-human animals, the paper represents one of the few attempts, within justice theory, to consider what we might owe non- human animals for reasons which go beyond their intrinsic properties (for other such attempts, see Coeckelbergh 2009, and most importantly, Donaldson and Kymlicka 2011). Although I have not explicitly addressed the question of what might be owed to non-human animals other than dogs, the paper still offers a general method (hypothetical consent test) that could be applied to the case of other ‘cooperating’ animals as well. Of course, doing so will present a number of challenges and will 28 demand a fairly radical shift in people’s attitudes towards animals. There are in fact pervasive forms of human-animal ‘would-be cooperation’, such as meat farming, which fail to acknowledge the very status of animals as right-holders. That said, while the systematic and unnecessary killing of animals for food might be impermissible on the view presented here, humane cattle farming for dairy production (if feasible) might constitute a morally acceptable form of cooperation: cattle provide milk in return for shelter, fresh pastures, and care (see Hilden 2007, p. 24, but cf. Donaldson and Kymlicka 2011, pp. 138-9). Although I do not have the space to explore these arguments in detail, the associative approach presented here points in the direction of a balanced and intuitively appealing position, which despite emphasizing animal rights, avoids the extremism of abolitionist animal ethics. The paper also has implications for the debate on the associative account of justice. As I have mentioned at the outset, this account is often thought to entail a rather conservative stance on the scope of our duties of justice, especially with respect to their extension to the global realm. But what about the extension of justice to other species, rather than to citizens of other states? Interestingly, proponents of the associative account have by and large neglected this question. As this article has shown, however, such a cross-species extension is in principle possible. In fact, if we consider how many species are integrated, and used, within our social systems (arguably cats, dogs, horses, cattle, sheep, and so forth), we can immediately see that the implications of the associative account are potentially very radical indeed (cf. Donaldson and Kymlicka 2011). Whether proponents of this account would accept them is doubtful. However, what this article suggests is that these are implications they must reckon with. 29 REFERENCES Aaltola, E. (2005) ‘Animal Ethics and Interest Conflicts’, Ethics and the Environment, 10 (1), 19-48. ACAC, Australian Companion Animal Council, ‘Dogs in Society Position Paper’, http://www.acac.org.au/pdf/dogs_in_society.pdf (last accessed on 19/10/2011). Anderson, E. (2004) ‘Animal Rights and the Values of Non-human life’, in M. Nussbaum and C. Sunstein (eds), Animal Rights: Current Debates and New Directions. Oxford: Oxford University Press, pp. 277-98. Animal Protection Party (1993) ‘Manifesto’, available online at http://www.tierschutzpartei.de/GSPtierschutz01.htm (last accessed 15/4/2011). Animals Count (2006) ‘Manifesto’, available online at http://www.animalscount.org/manifesto/aims/ (last accessed 15/4/2011). Animal Welfare Act (UK, 2006) available online at http://www.legislation.gov.uk/ukpga/2006/45/contents (last accessed 30/9/2012). BBC (2011) ‘Animal Welfare Law in the UK’, online http://www.bbc.co.uk/ethics/animals/overview/latest.shtml (last accessed 15/9/ 2011). Callicott, J. Baird (1992) ‘Animal Liberation and Environmental Ethics: Back Together Again’, in E.C. Hargrove (ed.), The Animal Rights/Environmental Ethics Debate. New York: State University of New York Press, pp. 249-61. Cochrane, A. (2007) ‘Animal Rights and Animal Experiments: An Interest-Based Approach’, Res Publica, 13 (3), 293-318. Cochrane, A. (2009a) ‘Ownership and Justice for Animals’, Utilitas, 21 (4), 424-42. Cochrane, A. (2009b) ‘Do Animals Have an Interest in Liberty?’, Political Studies, 57 (3), 660-79. 30 Coeckelbergh, M. (2009) ‘Distributive Justice and Co-Operation in a World of Humans and Non-Humans: A Contractarian Argument for Drawing Non-Humans into the Sphere of Justice’, Res Publica, 15 (1), 67-84. Cohen, G.A. (1983) ‘The Structure of Proletarian Unfreedom’, Philosophy and Public Affairs, 12 (1), 3-33. DeGrazia, D. (1991) ‘The Moral Status of Animals and Their Use in Research: A Philosophical Review’, Kennedy Institute of Ethics Journal, 1 (1), 40-70. DeGrazia, D. (1996) Taking Animals Seriously: Mental Life and Moral Status. Cambridge: Cambridge University Press. DeGrazia, D. (2002) Animal Rights: A Very Short Introduction. Oxford: Oxford University Press. Donaldson S., and Kymlicka, W. (2011) Zoopolis: A Political Theory of Animal Rights. Oxford: Oxford University Press. Donovan, J., and Adams, C.J. (2007) The Feminist Care Tradition in Animal Ethics. New York: Columbia University Press. Francione, G. (2000) Introduction to Animals Rights: Your Child or the Dog? Philadelphia: Temple University Press. Francione, G. (2004) ‘Animals – Property or Persons?’, in M. Nussbaum and C. Sunstein (eds) Animal Rights: Current Debates and New Directions. Oxford: Oxford University Press. Francione, G., and Garner, R. (2010) The Animal Rights Debate: Abolition or Regulation? New York: Columbia University Press. Fusfeld, L. (2007) ‘Sterilization in an Animal Rights Paradigm’, Journal of Animal Law and Ethics, 2, 255-62. Garner, R. (2005) The Political Theory of Animal Rights. Manchester: Manchester University Press. 31 Groves, C. (1999) ‘The Advantages and Disadvantages of Being Domesticated’, Perspectives in Human Biology, 4 (1), 1-12. Hadley, J. (2007) ‘Critique of Callicott’s Biosocial Moral Theory’, Ethics & the Environment, 12 (1), 67-78. Hart, H.L.A. (1955) ‘Are There Any Natural Rights?’, Philosophical Review, 64 (2), 175-91. Hilden, J. (2007) ‘A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-human Animal’, Animal Law Review, 14 (1), 5-28. McGrath, S. (2005) ‘Causation by Omission: A Dilemma’, Philosophical Studies, 123 (1-2), 125-48. McNeely, C.A. and Lindquist S.A. (2007) ‘Dangerous Dogs Laws: Failing to Give Man’s Best Friend a Fair Shake at Justice’, Journal of Animal Law, 3, 99-158. Midgley, M. (1983) Animals and Why They Matter. Athens: University of Georgia Press. Nussbaum, M. (2004) ‘Beyond “Compassion and Humanity”: Justice for Nonhuman Animals’, in M. Nussbaum and C. Sunstein (eds) Animal Rights: Current Debates and New Directions. Oxford: Oxford University Press, pp. 299-320. O’Neill, O. (1996) Towards Justice and Virtue: A Constructive Account of Practical Reasoning. Cambridge: Cambridge University Press. Palmer, C. (2010) Animal Ethics in Context. New York: Columbia University Press. Party for the Animals (2002) ‘Aims’, available online at http://www.partyfortheanimals.info/content/view/300 (last accessed 15/9/2011). Podberscek, A.L. (2006) ‘Positive and Negative Aspects of Our Relationship with Companion Animals’, Veterinary Research Communications, 30 (1), 21-7. 32 Rachels, J. (1976/1989), ‘Why Animals Have a Right to Liberty’, in T. Regan and P. Singer (eds), Animal Rights and Human Obligations. Englewood Cliffs: Prentice Hall, pp. 122-31. Rawls, J. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press. Rawls, J. (1999) The Law of Peoples, Cambridge, MA: Harvard University Press. Rawls, J. (2000) Justice as Fairness: A Restatement, Cambridge, MA: Belknap Press. Regan, T. (1983) The Case for Animal Rights. Berkeley, CA: University of California Press. Rollin, B. (1981) Animal Rights and Human Morality. Buffalo: Prometheus Books. Rowlands, M. (2002) Animals Like Us. London: Verso. Sangiovanni, A. (2007) ‘Global Justice, Reciprocity, and the State’, Philosophy and Public Affairs, 35 (1), 3-39. Scanlon, T.M., (1998) What We Owe to Each Other. Cambridge MA: Belknap/Harvard. Serpell, J. (1995) The Domestic Dog: Its Evolution, Behaviour and Interactions with People. Cambridge: Cambridge University Press. Simmons, A. J. (2010) ‘Ideal and Nonideal Theory’, Philosophy and Public Affairs, 38 (1), 5-36. Singer, P. (1990) Animal Liberation. New York: Avon, 2nd ed. Sunstein, C. R., ‘Introduction: What Are Animal Rights?’, in M. Nussbaum and C. Sunstein (eds), Animal Rights: Current Debates and New Directions. Oxford: Oxford University Press, pp. 3-18. Valentini, L. (2011) Justice in a Globalized World: A Normative Framework. Oxford: Oxford University Press. 33 Waldron, J. (1987) ‘Theoretical Foundations of Liberalism’, The Philosophical Quarterly, 37 (147), 127-50. Valentini_Canine justice_2016_cover Valentini_Canine justice_2016_author 
work_jpmzjajpergzllxeh2px2aezkq	----	Untitled A Kantian conception of global justice HELGA VARDEN* Abstract. I start this article by addressing Kant’s question why rightful interactions require both domestic public authorities (or states) and a global public authority? Of central importance are two issues: first, the identification of problems insoluble without public authorities, and second, why a domestic public monopoly on coercion can be rightfully established and maintained by coercive means while a global public monopoly on coercion cannot be established once and for all. In the second part of the article, I address the nature of the institutional structure of individual states and of the global authority. Crucial here, I argue, is Kant’s distinction between private and public right. Private right concerns rightful relations between individual legal subjects, where public right concerns legal subjects’ claims on their public institutions. I propose that the distinction between private and public right should be central to liberal critiques of current legal and political developments in the global sphere. Helga Varden is Assistant Professor in the Department of Philosophy and in Women and Gender Studies at the University of Illinois at Urbana-Champaign. Her main research interests are in legal, political, and feminist philosophy, with a particular emphasis on Kantian and Lockean political philosophy. Her most recent publications include ‘Kant’s Non-Absolutist Conception of Political Legitimacy’, Kant-Studien; ‘Kant’s Non-Voluntarist Conception of Political Obligations: Why Justice is Impossible in the State of Nature’, Kantian Review; ‘The Lockean ‘Enough-and-as-Good’ Proviso – an Internal Critique’, Journal of Moral Philosophy; and ‘Kant’s murderer at the door . . . One More Time: Kant’s Legal Philosophy and Lies to Murderers and Nazis’, The Journal of Social Philosophy; ‘Lockean Freedom and the Proviso’s Appeal to Scientific Knowledge’, Social Theory and Practice. Introduction Why do we need an international authority like the United Nations (UN)? There is no doubt that the UN often fails, that it is ine!cient, and that it su"ers from corruption. So rather than seeking to reform and improve it, why not just follow the current trend of powerful nations, namely simply to set aside the UN and pursue unilateral solutions instead? Indeed, recently we have witnessed the US, a Western, liberal constitutional democracy, pursuing unilateralism in new ways. The US has employed private companies1 to perform security functions as part of * Thanks to the audience at the conference ‘International Law and Global Justice’, The Centre for the Study of Social Justice and the Centre for International Studies, University of Oxford (20–21 May 2009), Tiziana Torresi, Laura Valentini, Shelley Weinberg, Howard L. Williams, and an anonymous referee (RIS) for their useful comments on earlier versions of this article. 1 Blackwater Worldwide, DynCorp International and Triple Canopy. Review of International Studies (2011), 37, 2043–2057 ! 2011 British International Studies Association doi:10.1017/S0260210511000301 First published online 17 Oct 2011 2043 conducting a war as well as established prisons outside its own territory, in which presumed international criminals are held captive, subjected to military tribunals and punished – allegedly without being deprived of their human rights. Against these practices and others of their kind, many liberal voices have argued that we need an international body like the UN to be the sole authority regarding international interactions and interventions. Although liberals typically are critical of such unilateral practices in inter- national a"airs, it is unclear exactly why they think we need the UN. This is especially unclear on the assumption that states are not adhering to the realist paradigm, according to which the goal of foreign policy, primarily, is to attain ‘power, prestige, and wealth’ – to use John Rawls’s famous formulation.2 The lack of a clear answer to the question why we need the UN if states act according to just principles seems characteristic of ‘statist’ liberal positions, such as Rawls’s theory, ‘cosmopolitan theories’, such as those of Charles Beitz, Thomas Pogge, and Kok-Chor Tan, and ‘institution-based’ accounts such as the one defended by Allen Buchanan. Instead, these theories rest on the implied assumption that the UN is a prudential solution to problems of justice; it is simply easier to realise justice through it. If so, however, then these liberal thinkers should not be dissatisfied with the current debate’s focus on whether the US and its allies or the UN is more likely to be successful policing the world. And yet these liberal thinkers are typically uneasy about the prospect of particular states unilaterally assuming the role of a world police. But to justify their dissatisfaction with the status quo, liberal thinkers must say something about the special standing a global authority ought to have in transnational a"airs. Liberal thinkers must, but unfortunately do not, say something about what gives the UN special standing in global matters, such that that standing justifies an authoritative role. A general problem characterising much contemporary liberal thought is therefore that it does not clarify whether respect for human rights and global justice necessarily requires a global, public authority, rather than one, or more, just and powerful agent, such as a state. To bring clarity to this issue, what we need is an explicit answer to the following question: if we assume a world in which resources were plentiful and individuals and/or states were acting in accordance with just principles, would we still need a global political authority like the UN? Contemporary liberal accounts of justice typically do not provide an explicit answer to this question. In this article, I address this lacuna in contemporary liberal thought. The aim is to provide a Kantian account of the foundations of a liberal theory of global justice, namely a conception of the global public authority that reconciles statist concerns for the sovereignty of nations and cosmopolitan concerns for individual rights. In doing so, I outline a positive account of why global justice requires states and private persons not only to adhere to some reasonable conception of rightful transnational interaction, but also to establish a global public institutional authority to regulate their interactions. If it can be shown that there are problems characterising global interaction that cannot in principle be solved without appeal to a public authority, then it is incorrect to think that establishing global institutions is in principle unnecessary to enable just global interaction. In addition, contrary to common liberal assumptions, I argue 2 John Rawls, The Law of Peoples (Harvard University Press, 1999), p. 28. 2044 Helga Varden that the rights of public authorities go beyond those of private persons, meaning that the rights of public institutions are not coextensive with private persons’ rights against one another. Rethinking these core assumptions concerning the need for public institutions as well as the distinction between private persons’ rights and rights of public authorities are essential to showing how the Kantian approach can reconcile central concerns of both statist and cosmopolitan liberal theories of global justice without thereby arguing for a world state. I do not, however, want merely to take seriously the important insights from prominent liberal accounts. I aim for an account that takes seriously the current legal and political reality, understood primarily in historical and current develop- ments in international private and public law. My method is therefore informed by the idea that the most promising approach to global justice is able to critique actual, current developments in liberal law and political systems. The reason for this is neither merely that I want to avoid building a ‘castle in the air’ – beautiful to look at, but utterly useless for any practical purposes – nor simply that I believe that though often highly problematic in particular instances, there is wisdom in time worn liberal legal practices and the additions these practices push for as our world changes. This is also not to say that I find legal practices to be as wise and unproblematic as legal positivists often do. Rather, a liberal theory of justice should be able to illuminate whatever wisdom there is in liberal legal and political systems and use this knowledge to identify and engage the particular institutions comprising the actual systems. In particular, central to liberal legal and political systems is both the idea of individuals’ rights as well as a fundamental distinction between private and public right, where private right concerns rightful relations between private individuals, whereas public right concerns legal subjects’ claims on public institutions. This distinction, I believe, is one that neither is currently utilised by liberal theories of justice nor one that legal positivists make good sense of – whether we are focusing on issues of domestic justice or global justice. Yet it is a central distinction in the legal and political reality to which our theories should apply.3 Following Kant I will suggest that the distinction between private and public right is at the heart of a liberal critique of current legal and political developments, and hence essential as we try to identify both our current mistakes and the way forward in our institution building attempts. This article then, has two parts. Part one addresses the first question emphasised above, namely why rightful interactions – or interactions consistent with, ultimately, individuals’ right to freedom – require both domestic public authorities (states) and a global public authority. Of central importance here are two issues: first, the identification of which kinds of questions appear insoluble without public authorities, and second, explaining why a global public authority must be established, maintained, and developed through voluntary means even though a domestic authority can be rightfully established by coercive means. A global public authority is something that each party in the process can indepen- dently hope or wish for, but its establishment is something we can only intend collaboratively. This argument for the necessity of public authorities as well as the 3 Ingeborg Maus, in ‘From Nation-State to Global State, or the Decline of Democracy’, trans. James Ingram, Constellations: An International Journal of Critical & Democratic Theory, 13:4 (2006), pp. 465–84, also draw the attention this legal distinction when interpreting Kant’s conception of global justice. A Kantian conception of global justice 2045 principled di"erence between the rightful establishment of domestic and global public authorities, I propose, can explain important features of the current structure of domestic and international private right. The second part of the article turns to the nature of the institutional structure of both domestic and global public authorities. I briefly outline how domestic public right secures and enables private right for all of its citizens and how public right also contains other systemic measures involved in securing each citizen’s right to freedom. I then outline core similarities and di"erences with regard to international public right. My proposal is that in the future international public right will aim to secure and establish international private right for all even though its current main focus lies in establishing the other aspect of public right, namely public institutions as required to secure global systemic justice. Moreover, I argue that the development of international public right both as required to secure international private right and to secure global systemic justice demands that we do not give up on, but keep reforming the UN institutions. Finally I argue that the global public authority will only seek to maintain a voluntary peacekeeping force as needed to protect stateless persons and that it will only authorise coercion on behalf of its members towards aggressive states. Yet since only the global public authority can have rightful standing in interstate conflicts, the rightful solution also to transnational injustice goes through it. States resorting to unilateral military action is always the last resort – and one that is not, in principle, reconcilable with rightful global relations. Public authorities: why we need them The lack of reflection upon the status of a global political authority probably results from the fact that contemporary liberal theoretical analyses typically see all issues of justice – domestic or global – through the perspective of hypothetical consent. Much contemporary liberal theory seems implicitly to adopt the Lockean assumption of a prudential need for authoritative public institutional solutions to problems of interactions. Yet in contrast to the Lockeans, much liberal theory then takes a shortcut by arguing that what matters for justice is simply that the right principles are enforced without also addressing the question of whether and why it matters who gets to enforce them. True, liberal statist theories do assume that just states should enforce international laws; cosmopolitan theories simply identify the bottom line as the principle that human rights should be universally enforced; whereas institution-based theories emphasise the importance of institution building. Yet all these theories say little about why we need a distinctly public authority to specify, apply and enforce principles of global justice.4 Answering this question will 4 For example, it is unclear whether the realisation of Rawls’s ‘Society of Peoples’, which proposes a statist response to questions of global justice, necessarily involves the establishment of a public global authority of sorts or whether it is in principle su!cient that each one of the states (‘liberal’ and ‘decent’ peoples) individually abides, in its foreign policies, by the liberal principles (ideas and ideals) as put forward in the Law of Peoples. (See Rawls, Law of Peoples, p. 37.) It seems fair to say that Thomas Nagel’s revisions of Rawls’s theory in ‘The Problem of Global Justice’, Philosophy & Public A!airs, 33:2 (2005), pp. 113–48 also does not include a clear, ideal justification for the global authority. A similar puzzle arises in relation to the cosmopolitan theories of Charles Beitz, Thomas 2046 Helga Varden tell us what, exactly, is so wrong with the unilateral enforcement of global justice by an individual, a private security company, or a single state. Below I first argue that we can respect one another’s right to freedom only through the establishment of domestic public authorities (liberal states). Subsequently, I provide the comp- lementary account of why human rights and mutual respect for sovereignty among internally just states is possible only through the establishment of a global public authority. The need for domestic public authorities As indicated above, I believe that justice is possible only within civil society, or within a liberal, legal framework. Civil society is an enforceable precondition for right, and not merely a prudent response to the so-called ‘inconveniences’ characterising the state of nature. In my view, these conclusions follow if one accepts Kant’s relational understanding of right, according to which individuals’ interactions must be respectful of one another’s right to freedom. A right to freedom, on this view, is a right to set and pursue ends of one’s own choosing subject to universal laws of freedom rather than as subject to the arbitrary choices of another. Moreover, our interactions are rightful only if they are subject to restrictions of freedom, namely restrictions that are neither contingent, meaning that they are traceable to some particular person’s arbitrary judgement or preferences nor asymmetrical, meaning that they restrict people unequally. Such a right to freedom must be understood as innate, and since we are embodied beings, it must also be seen as involving a right to exist somewhere and to bodily integrity. That is to say, we must have a right to exist wherever we are born and we must have a right to defend our bodily integrity against attacks from others. Although the innate right to freedom gives one a right to protect oneself against attacks from others, it does not give us an individual right to punish. After all, rightful punishment requires determining non-contingent and symmetrical restrictions to be enforced against the perpetrator. Because it seems clear that there is reasonable disagreement with regard to issues of procedural justice and determinations of the amount of punishment, it is impossible for a private individual rightfully to enforce Pogge and Kok-Chor Tan. These cosmopolitan theories distinguish themselves from Rawls’s statism by using the wellbeing of individuals rather than societies (states or peoples) as the ultimate unit of analysis in considerations of global justice. Nevertheless, they do not make much headway with regard to settling the question of the status of the global authority. See, for example, Thomas Pogge, ‘An Egalitarian Law of Peoples’, Philosophy and Public A!airs, 23 (1994), pp. 195–224, and World Poverty and Human Rights (London: Polity Press, 2002), pp. 91–118 and 168–95. See also Kok-Chor Tan, Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (Cambridge: Cambridge University Press, 2004); and Toleration, Diversity, and Global Justice (Pennsylvania: The Pennsylvania State University Press, 2000). For example, see Part III: ‘International Distributive Justice’, in Charles Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1979), pp. 125–76; and ‘Human Rights and the Law of Peoples’, in Deen Chatterjee (ed.), The Ethics of Assistance: Morality and the Distant Needy (Cambridge: Cambridge University Press, 2004), pp. 193–216. Finally, despite his focus on international law and global institutions, Allen Buchanan also fails to address the ideal question of why we need public institutions in the first place. See his Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004). A Kantian conception of global justice 2047 her particular choice of procedures and punishment. Hence, rightful punishment requires the state: rightful punishment is impossible in the state of nature. Setting and pursuing ends of one’s own, however, requires more than a right to exist and to bodily integrity – and these further considerations yield other reasons why rightful interaction is impossible in the state of nature. More specifically, justice cannot be realised by each private individual acting virtuously, since private individuals can neither provide rightful assurance nor overcome certain problems of specification characterising private property, contract, and status (‘private care’) relations. The problem, in short, is that these relations among private individuals cannot be both rightful, and reconcilable with each person’s innate right to freedom, and determined and assured by a private authority. But private authority is the extent to which there is authority in the state of nature. Thus, though we may identify the general principles that should be governing the various areas of private interaction (private property, contract, and fiduciary relations), this identification is insu!cient for rightful relations. True, we can formulate the principles in a way that is reconcilable with each person’s innate right to freedom. But identifying these fundamental principles of rightful private interaction – or the principles of private right – is not enough to enable rightful relations. There is still a problem of providing assurance that we will so interact and of determining rightfully how these abstract principles should be specified in relation to various empirical circumstances and cases so that the resulting set of restrictions constrains each person’s actions symmetrically and non-contingently. Indeed, even a mutual agreement to trust one another and agreement on the specification of the principles cannot make relations among individuals rightful, since everyone’s freedom is still subject to one another’s arbitrary choice. Because it is in principle impossible for private individuals to solve the problems of assurance and specification of the principles of private right, refusing to enter civil society is to do wrong. In order to interact rightfully with others we must establish a condition in which our interactions are subject to universal laws of freedom rather than to one another’s arbitrary choices. The only way to do this is by establishing a will that represents the will of each and yet the will of no one particular private individual, that is, what Rousseau called a ‘general will’. I will call it a ‘public will’ or a ‘public authority’. To refuse to enter civil society is therefore to refuse the condition under which interaction consistent with each person’s right to freedom is possible – it is to ‘do wrong in the highest degree’, Kant argues. Thus, individuals have an enforceable duty to set up a public authority to provide assurance and to specify the rules for their interaction. They do not have a right to enforce their own specification even if it is a reasonable specification. Because consent cannot be a necessary condition for the establish- ment of a rightful state, we have good reason to think that the liberal ideal of political obligations at the state level is non-voluntarist in nature.5 5 Kant’s account of justice is found in the ‘Doctrine of Right’ in the Metaphysics of Morals. This text is found in Mary J. Gregor (trans. and ed.), Immanuel Kant: Practical Philosophy (New York: Cambridge University Press, 2006). I provide a fuller interpretation of Kant’s account of domestic private right in ‘Kant’s Non-Voluntarist Conception of Political Obligations: Why Justice is Impossible in the State of Nature’, Kantian Review, 13:2 (2008), pp. 1–45. 2048 Helga Varden The need for global public authorities Having seen how the Kantian conception of justice treats the domestic case, we can turn to the global case.6 First, it is important to note that the above argument establishes that a group of persons do nothing wrong by establishing a state. To the contrary, establishing a state is a precondition for rightful relations among interacting persons. Consequently, once there exists states, the coercive establish- ment of a world state with a global monopoly on coercion would be wrong because it would involve wrongfully depriving peoples of their rightfully established states. However we approach issues of global justice, our account can therefore not require a people to abolish their state, which means that the ideal of global justice cannot be the establishment of a world state with a global monopoly on coercion.7 Second, the just state is a public authority without private interests. Conse- quently, it does not have what we often refer to as ‘realist’ global interests, such as imperialist interests. If an actual liberal state has such interests, then it misunderstands or contradicts its own fundamental liberal principles. According to its own ideals, the just state’s domestic function is merely to enable rightful relations amongst its subjects. The corresponding global function is to pursue a condition in which it can interact rightfully with its neighbours and in which its citizens can interact rightfully with foreigners. Finally, note that on this relational conception of right, a state cannot rightfully use its citizens as means to solve other states’ or people’s problems. If you are not party to a particular conflict, then you do no wrong if you abstain from taking part in it. In other words, not only can 6 Kant’s main three writings on issues of global justice are ‘On the common saying: That may be correct in theory, but it is of no use in practice’ (PP), ‘Toward Perpetual Peace’ (TP), and the ‘Doctrine of Right’ in The Metaphysics of Morals (DR). The core challenge facing Kant interpreters concern dealing with the fact that he appears to be contradicting himself in his main texts on the issue. For example, there are some passages in each text, where Kant seems to argue that global justice is in principle impossible without a world state with a permanent monopoly on coercion (DR 6: 344, cf. 351, 354f; PP 8: 358, 379; TP 8: 310). Yet, in both PP and DR Kant appears to argue the contrary, namely that global justice cannot require a world state, but only requires a voluntary world republic (or ‘league of nations’). Kant appears to give several reasons – some principled and some pragmatic – why global justice cannot require a world state (DR 6: 344, 345f, 351); (PP 8: 354; 8: 355f). Further interpretive complexity is added by some passages where Kant seems to say that a world state is in theory necessary, but in practice it is impossible and, consequently, all we can establish is a voluntary world federation (DR 6: 350; PP 8: 367; TP 8: 310f) Finally, in PP, Kant famously argues that states, due to their mistaken understanding of the right of nations, will in practice (‘in hypothesi’) wrongly reject what is true in theory (‘in thesi’) (PP 8: 357, cf. 312). I engage Kant’s own text more carefully in ‘Diversity and Unity. An Attempt at Drawing a Justifiable Line’, Archiv für Rechts- und Sozialphilosophie/Archives for Philosophy of Law and Social Philosophy (ARSP), 94:1 (2008), pp. 1–25. 7 Until recently it commonly presupposed that according to Kant and the Kantian position, the public authority was needed simply because it constitutes the more e!cient means of ensuring peace. Consequently, whether a world state with a monopoly on coercion or a system of independent states was seen as an empirical question regarding which system is more likely to bring peace about. Michael W. Doyle, ‘Kant, Liberal Legacies, and Foreign A"airs 1/1’, Philosophy and Public A!airs, 11/12:3/4 (1983), pp. 205–35 and 323–53 and John Rawls (1999) famously pursue the statist line of argument. According to Doyle, liberal states have proven themselves less likely to go war against one another, and for both Doyle and Rawls, the aim is to identify which foreign policies liberal states should adopt in order to secure world peace. In contrast, Thomas Carson in ‘Perpetual Peace: what Kant Should Have Said’, Social Theory and Practice, 14:2 (1988), pp. 173–214; and Sidney Axinn in ‘World Community and Its Government’, in Jane Kneller and Sidney Axinn (eds), Autonomy and Community (Albany: State University of New York Press, 1998), pp. 119–29, argue that in our nuclear times, a world state with a monopoly on military power is more likely to secure world peace. A Kantian conception of global justice 2049 citizens never be rightfully forced to participate in expansionist wars, since states do not own their own citizens, but in addition citizens cannot be forced to participate in any conflicts to which they are not a party.8 Citizens can only be legally obliged to defend their own state against attacks. The implications of these preliminary remarks is that the pursuit of global justice for just states cannot involve the establishment of a world state with a global monopoly on coercion. Moreover, the level of required participation in the establishment of global institutions depends on the level and kind of interaction. So what are the kinds of global interaction? It seems that there are two kinds of interaction: interstate interaction and global private interaction. Clearly it is advantageous for an account of global justice if it can draw the proper distinctions between relations between states and relations that involve private individuals and yet are transnational in nature. The assumption that relations are only either statist or individual in nature fails to accurately capture the complexity of global interaction. This is a significant problem with statist and cosmopolitan theories. For example, Rawls’s statist account confines itself to an analysis of ideal relations simply in statist terms, and Tan’s account does the same only simply in individual terms. A virtue of the Kantian account is that it can distinguish between, and yet incorporate, both the right of nations (interstate interaction) and cosmopolitan right (transnational interaction involving private individuals).9 This in itself gives us some reason to pursue this third alternative, according to which accounts both of interactions involving states and of private persons are constituent parts of the full theory of global justice. So far I have argued that global justice cannot involve imperialism or the establishment of a world state with a permanent global monopoly on coercion and that the analysis should involve both analyses of interstate interaction and of private individual interaction. At this point it is fair to ask why we need any global public authority at all and also what it would look like if it is not a world state with a global monopoly on coercion? In answer to the first question, why, ideally, we need a global public authority at all, there are two reasons corresponding to the two relevant types of global interaction – between states and between states and foreign, private persons. Each type of interaction requires a public authority in order to be made rightful.10 8 See Kant in DR 6: 345f on this point. 9 In Kant’s DR the former account is found in ‘Public Right. Chapter II. The Right of Nations’ (6: 343–51), whereas the latter account is found in ‘Public Right. Chapter III. Cosmopolitan Right’ (6: 352–3). 10 Other non-prudential interpretations that deal with issues of global justice include Kevin E. Dodson, ‘Kant’s Perpetual Peace: Universal Civil Society or League of States’, Southwest Philosophical Studies, 15 (1993), pp. 1–9; Jürgen Habermas, ‘Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Years’ Hindsight’, in James Bohman and Matthias Lutz-Bachmann (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, Massachusetts: the MIT Press, 1997), pp. 113–53; Otfried Hö"e, Kant’s Cosmopolitan Theory of Law and Peace, trans. Alexandra Newton (New York: Cambridge University Press), 2006; Pauline Kleingeld, ‘Approaching Perpetual Peace: Kant’s Defence of a League of States an his Ideal of a World Federation’, European Journal of Philosophy, 12:3 (2004), pp. 304–25; Nancy Kokaz, ‘Institutions for Global Justice’, in Daniel Weinstock (ed.), Global Justice, Global Institutions (Calgary: University of Calgary University Press, 2007); Thomas Pogge, ‘Kant’s Theory of Justice’, Kant-Studien, 79 (1988), pp. 407–33; Howard L. Williams, ‘Back from the USSR: Kant, Kalingrad and World Peace’, International Relations, 20:1 (2006), pp. 27–48. 2050 Helga Varden First, let me consider states’ interactions. There are two main types of ideal interaction among states: interaction in international spaces (in the air and on the sea) and interaction regarding borders. Even though individual states may specify the general principles to govern both interaction in international spaces and the determination of a proper border, there can be a reasonable disagreement about how to specify them. And though it is advantageous if various states can work things out, say through a willingness to engage in a Habermasian discourse or a Rawlsian political discourse, there can still be reasonable disagreement regarding exactly where the actual lines should be drawn. Although it is often unreasona- bleness that leads to conflict, disagreements can also be reasonable. The only way to find a solution to such a deadlock that is consistent with a commitment to a liberal ideal of rightful freedom involves establishing a public authority to decide the matter. Just as in the domestic case only a public authority can represent both parties to the conflict and yet no one in particular. Therefore, a rightful solution to problems involving interactions between states in international spaces requires the establishment of such an authority. Since states can reasonably disagree, it seems that a true commitment to rightful peace involves a willingness to establish an international authority with standing to specify and apply the laws governing these kinds of interactions. States committed to rightful peace will, insofar as possible, coercively defend only borders so determined. Only coercion authorised by the global authority in this way is reconcilable with rightful peace. It is for these kinds of reasons that liberal states want something like the International Court of Justice (ICJ).11 Second, there are interactions between states and foreign private individuals. Ideally, there are only voluntary visitors to a state.12 Voluntary visitors are persons 11 This is an argument that is particularly important for countries with contested borders, such as Norway. Norway is involved in many of the controversial international disputes concerning borders on Svalbard, the Arctic and o"shore borders in the North Atlantic Ocean, and the Barents Sea. Norway typically follows the relevant rulings of the International Court of Justice in these matters, and yet a lot of the theoretical and public o!cials’ analyses of these matters are undertaken in realist and increasingly neoliberal terms. A drawback of these analyses is that they only partially grasp why Norway find it so important to look to the international authority when formulating its own national policies, including its foreign policies, regarding these matters. The partial reason stems from prudence – as a small nation, Norway has no option but to work with other political forces when pursuing its interests. The argument presented here is not antithetical to or incompatible with prudential reasons, but it maintains that the commitment to the ICJ can also be seen as a consequence of Norway’s general commitment to function as a liberal legal system. Which reason is actually operating depends on the extent to which Norway is able to function as a public authority, of course. But the main point here is that liberal institutional commitments to right are fundamentally incompatible with unilateralism and consequently insofar as liberal states progress, they will be increasingly resistant to use unilateralism in their global interactions. 12 Involuntary visitors are refugees. States can justify their territorial monopoly on coercion only if it is consistent with everyone’s innate right to freedom. Hence, though a state need not give permission to everyone wanting to enter its territory, it cannot turn away those who have nowhere safe to go. If it does, then the state’s use of coercion is irreconcilable with its own foundation, since such exclusion is irreconcilable with the refugee’s innate right to freedom – it would not be reconcilable with everyone’s right to exist somewhere. Moreover, even as the state lets the refugee across its border, there arises the problem that until the refugee has obtained legal status as a citizen, the particular state in which she is living is not her public authority. The state in representing the general will of the people does not thereby represent her will. Therefore, until citizenship is conferred, the state does not fully representing the refugee. On this account, it is in recognition of these kinds of problems of reconciling a state’s monopoly on coercion with a visitor’s innate right to freedom that current states have instituted the UNHCR (The O!ce of the UN High Commissioner for Refugees: {http://www.unhcr.org/basics.html}. This global public institution represents both states and refugees, A Kantian conception of global justice 2051 who visit (tourists) or live over longer periods in a di"erent country not out of need, but because they would like to pursue a professional or private interest in this way. They do not have a right to enter another state, but if they are permitted to enter, the challenge for the state concerns how to enable rightful interactions between itself, its citizens and the foreigners. The first response from just states is to guarantee the visitors legal protection by giving them various types of legal residence status, such as tourist visas, temporary work visas, permanent residence, and so on. As long as a person is not a citizen, she or he does not enjoy full citizen rights, but many of these rights in virtue of being granted these kinds of legal status. Moreover, as mentioned above, private individuals do not have a right to punish; only the state can. Yet since the state does not fully represent the visitors (the resident does not have full rights), the next challenge for the just states concerns how they can still rightfully punish the visitors? We see just states responding to this problem in a variety of ways. For example, just states provide legal aid to the foreigner, secure foreign embassies the rights to assist their citizens (the resident), or negotiate extradition treaties. The suggestion in this article is that it is because the state does not fully represent the foreigners that they try to secure their rights by involving the state, of which the foreigner is a citizen, in these ways.13 Finally, there are transnational issues concerning private property, trade, and fiduciary relations. Private persons inherit property in other states, engage in international trade, and marry and have children across state borders. There are therefore private right cases involving private property, contracts, and fiduciary relations where at least one party to the conflict is located in a di"erent state then the other(s). Again, the challenge for the state is how to make these interactions rightful and the main problem concerns which laws the state should apply in any particular transnational case at hand. For example, it can be a US airline company filing a case in the US legal system suing a Belgian airline company for an accident involving several American airplanes at the Brussels airport, or it can be a Canadian couple adopting a child from Korea, and then the Korean biological parents challenge the rightfulness of the adoption in the Korean legal system. In these kinds of cases, there is a so-called ‘conflict of laws’, which means that it is unclear which domestic laws should be applied in the particular case: should it be and it is the means through which states and refugee interaction are made rightful. In addition, of course, the UNHCR deals with other non-ideal situations, such as by trying to set up safe places for refugees, by regulating any other non-state interaction with refugees, and by facilitating their transition to permanent new homes in new states. Finally, it follows that the public authority will seek to maintain a global peacekeeping force as required to stabilise and assist currently stateless peoples as they (re)build their just states. No state’s military can fulfil such a role (ideally), since it cannot (in principle) act on behalf of the stateless people; only a global public authority can. Moreover, because the public authority cannot command anyone to risk their lives in such peacekeeping missions, the UN must maintain its peacekeeping force purely by voluntary means. 13 The International Criminal Court’s (ICC) {http://www.icc-cpi.int/}, in contrast, is a means of securing just punishment on behalf of defenceless persons and peoples – or persons and peoples who, in e"ect, are stateless and hence deprived of protection by a just state. It is therefore a non-ideal measure in that it enables rightful punishment of aggressive, violent behaviour that otherwise cannot be punished (since one of the parties exists in the state of nature). It should therefore, if things go well, be incorporated into the UN structure proper. This seems consistent with how the founding document of the ICC makes it clear that even though the ICC is currently independent of the UN (Article 2, ‘Rome Statue of the International Criminal Court’, downloaded from ICC’s homepage on 17 Feb. 2010), ‘The Court shall be brought into relationship with the UN through an agreement to be approved by the Assembly of States Parties to this Statute . . .’. 2052 Helga Varden the laws of the legal system where the suit is filed or the laws of the legal system of the defendant? In order to deal with these problems, many states have developed so-called ‘international private right’, which are laws aimed at deciding how legal systems should deal with these kinds of conflicts. Moreover, in the last few decades, individual states have been trying to coordinate their international private right systems, especially through the Hague Conference on Private International Law (HCCH). In my view, this is the first step towards making such interactions rightful, namely by establishing which principles should determine which states’ laws should be relevant in various types of cases. The further step seems to involve establishing an international court with standing to evaluate whether or not states properly applied the principles of international private right. Since a particular state is not the public authority of all the interacting parties, a global authority as an ultimate appeal is necessary for rightful relations involving international private right. Hence, though the HCCH is a step in the right direction, it is not the last step if things go well. The institutional structure of public authorities Having argued that we need both domestic and transnational public authorities, we need to obtain a clearer idea of what such public authorities look like.14 In particular, we want to make sure that establishing these authorities does not merely reproduce the problems of the state of nature by subjecting freedom to someone’s arbitrary choice rather than to non-contingent and symmetrical law. This requires us to identify the institutional structure of the public authorities. Again, let’s take a look at the domestic case before turning to the global case. The institutional structure of domestic public authorities To avoid the problematic conditions of the state of nature, first, the state cannot have ‘private’ interests; second, it must guarantee all its citizens’ freedom and 14 I believe the charitable reading of Georg Cavallar, Kant and the Theory and Practice of International Right (Cardi": University of Wales Press, 1999); Dobson (1993), Habermas (1997), Hö"e (2006), Kleingeld (2004), Kokaz (2007), Maus (2006), and Pogge (1988, 2009) agree with me that according to Kant rightful solutions to conflicts in interstate relations and in relations between states and foreigners require the institution of a global public authority. The main di"erences are as follows: Dobson and Hö"e argue that Kant’s ideal reasons for not establishing a global authority with a monopoly on coercion should be rejected and instead our aim for the global authority should be what Hö"e calls a ‘minimal state’. Habermas and Pogge, in contrast, argue that the considered Kantian position defends an overlap between domestic, regional, and global spheres of sovereignty. Maus uses the point to support her view that global justice requires that just states always remain independent of one another, even though they ought to use global institutions like the Court of Justice to settle their disputes. Cavallar, Kokaz and Kleingeld, in turn, use these ideal arguments for the necessity of the global authority as providing further support for their developmental conceptions of the world federation with some limited coercive powers. In contrast I have argued that the global public authority is the only rightful authoriser of coercion regarding interstate relations (though the individual just states do the actual enforcing) and that the global peacekeeping force is limited to the protection of stateless individuals. Finally, I have argued that the choice to partake in other states’ and stateless peoples’ conflicts is a choice that ultimately lies with each state’s individuals. A Kantian conception of global justice 2053 equality by both securing for each one of them rights to bodily integrity and to private right, and by setting itself up as a tripartite coercive authority that specifies, applies, and enforces only the law. Thus, to overcome the problems of the state of nature and to establish a condition in which rightful relations are possible, the public authority requires a constitution or a similar fundamental legal document circumscribing its fundamental powers in these ways. These circumscriptions make it possible for the public authority to be authorised to act on behalf of its people in order to enable their rightful interaction – interaction that was impossible in the state of nature. The public authority cannot own private property or have any private interests because this would make it impossible to represent no one in particular, and yet all its citizens. The public authority treats them as free and equal by securing their rights to bodily integrity and private rights and by establishing the sovereign as the rule of public law so that the law rules the o!ces of the sovereign authority. In addition to setting the sovereign power up in these ways designed to overcome the problems of the state of nature, the state must take certain additional steps to secure conditions of justice because it must establish a monopoly on coercion. That is to say, because the state must assume a monopoly on coercion, it must also ensure that monopoly on coercion is reconcilable with everyone’s right to freedom, namely their right not to find their freedom subject to another private person’s arbitrary choice, but only to the public authority’s laws. This is why the state must provide unconditional poverty relief, why it must assume special control over land, the economy and financial systems, and why it must set up a public administration and a system of punishment. Each of these systemic measures is necessary to ensure that citizens do not find their freedom, although determined by institutions, e"ectively under the control of some private person. Establishing such public institutions with the appropriate structure is a matter of public right, namely it concerns the claims citizens subjects have on their public institutions in virtue of their citizenship. Therefore, public rights are not coextensive with the rights people have against one another as private persons. Rather the claims of domestic public right are di"erent in nature and kind by being systemic claims citizens have only with regard to their own state.15 The institutional structure of the global public authority Let’s now return to the global case. How, exactly, do we set up a global public authority, which is to say how do we reform the UN? As in the domestic case, I believe that there are three main institutional processes that must take place. First, the establishment of a global public authority requires a founding legal document circumscribing its authority in ways similar to the domestic case. Second, this document must specify the public global authority and the way in which it is comprised of three independent yet complementary public institutions: a legislative authority, a judicial authority, and an executive authority. Third, consistent with 15 I provide an interpretation of this public right argument to Kant’s ‘Doctrine of Right’ in ‘Kant’s Non-Absolutist Conception of Political Legitimacy: How Public Right “Concludes” Private Right in ‘The Doctrine of Right’’, Kant-Studien (forthcoming). 2054 Helga Varden the legal foundation, other public institutions must be established to enable and secure systemic justice. The current UN, albeit in need of significant reform to secure global justice, is at least approaching minimally meeting all three conditions in a way that is reconcilable with just states’ sovereignty. Because of some unjustifiable asymmetries that characterise the UN’s core institutions, some improvements seem pertinent to their ability to issue political obligations on interacting states in all regards, but there seems to have been clear institutional improvement over its short history. Consequently, although there may still be some time before these institutions are capable of functioning as public authorities capable of issuing political obligations, I do not see that there are any principled reasons why we shouldn’t be able to reform them so as to overcome these problems. To start, the ideal function of the UN Charter is to serve as the founding legal document for international public right, and therefore it is the document within which all the other UN institutions must act. Moreover, it specifies the tripartite structure of the public authority required for international right. The legislative authority currently lies with the General Assembly, and the judicial authority is currently identified with the International Court of Justice. And consistent with what I have argued, if things progress rather than regress, a suitably constructed analogue to the Hague Conference on Private International Law will also become parts of the UN judicial authority. Central to further progress regarding all institutions, I believe, focuses on being able to reform them into institutional authorities that reason and act as public authorities – namely as authorities representing all and yet no one in particular. This naturally includes progress with regard to establishing the principles determining which judges are necessarily biased in which types of cases. The more we are able to do this, the more unreasonable and irrational it becomes to insist on settling transnational conflicts by unilateral means. The executive authority primarily lies with the Security Council, which is authorised to decide when member states can be called upon to intervene in situations where international rightful peace and security is threatened. Since the Security Council must be reconcilable with just states’ sovereignty, not only must the just states’ own citizens have the last word on intervention, it will only authorise coercion aimed at stopping international violence or domestic violence within unjust states. The enforcement of the authoritative decisions made by the UN is carried out by the just states themselves and/or by the UN Peacekeeping forces. Moreover, it seems fair to say that the main challenge with regard to this authority concerns reforming the Security Council into an authority that can be seen as representing all its legal subjects – all just states – as free and equal. Today’s system of veto by permanent members and the possible election of the most unjust states as members of the Security Council may be prudent given the global climate, but I cannot see that it can fulfil its function as a public authority until it becomes based on a firm commitment to freedom and equality. What about the third condition, namely of securing systemic justice? Interest- ingly, the General Assembly, the ICJ, and the Security Council comprise only three of the six original bodies established by the UN Charter. The other three are the Economic and Social Council, the Trusteeship Council, and the Secretariat. Without looking at the details surrounding these institutions, it is fair to say that A Kantian conception of global justice 2055 they all concern systemic issues related to global interaction – that is, systemic issues related to the global economy, including poverty, peoples without indepen- dence as a result of historic imperialism, and public administration. All of these issues were identified by the founders of the UN as central to establishing a global system of public right. Moreover, as time has passed, other institutions have been added, far too many to mention here. Rather, what is important is that there seems to be a fairly clear structure to the growth of the UN as an institutional whole. It is similar to how the public institutions of just states have and still do increase in number or grow to enable conditions of rightful interaction for all its citizens. New institutions, whether on the domestic or global front, are necessary to fill out the public institutional structure required for rightful relations (rightful peace) for all. Since on the global front we need a fairly comprehensive system to deal with international spaces, international private right and systemic right, we are now seeing the growth of institutions in all these areas. On the one hand, we see an increasing number of public or quasi-public institutions aimed at enabling borders and international private right. As already mentioned, in addition to the ICJ for border and international space issues, we have the O!ce of the UN High Commissioner for Refugees (UNHCR) specialising in refugee issues. In addition, there are increasing numbers of institutions aimed at enabling international private right, such as the World Trade Organization (WTO) and the quasi-public HCCH, which, I suggest, will be reformed into a public authority if things go well. On the other hand, we have an increasing number of institutions aimed at enabling systemic justice with respect to the global economy and the international financial system. This explains some of the complexity of the World Trade Organization’s operations as well as institutions like the World Intellectual Property Organization (WIPO). We also have institutions aiming to make it possible for states to have interacting economies and financial systems without thereby risking the downfall of these states. To that end, the UN has set up the International Monetary Fund (IMF), the World Bank (WB), and the World Health Organization (WHO). Like the original Economic and Social Council called for under the UN Charter, their primary function is to help the stabilisation and growth of international global systems without also creating, even unintentionally, destructive dependency relations between states. This is not to say that there are some serious asymmetries involved in the current institutions, such as the way in which the Western countries control the WTO, the IMF and the World Bank. Rather the main point is that current UN already includes much of the necessary structural features to serve as a just global public authority. Therefore, although all these institutions still require significant reform, the current UN charter establishes a coherent institutional structure that can be reformed into the kind of public authority necessary to enable global justice. Conclusion Despite my conditionals in the arguments above, the main objection to my conclusions is still likely to be that many of these UN institutions are notoriously corrupt and unjust deserving only of the rubbish heap, so let’s just scrap them and 2056 Helga Varden start from square one. Let me therefore just emphasise again that I completely agree that the current UN institutions are corrupt and unjust. But I also believe that the above account says something about what makes such institutions corrupt and explains why the solution to our current problems requires us to fix these institutions from within. On the one hand, these institutions are unjust because they do not treat all their legal subjects (states and persons) as free and equal. There are certain institutional asymmetries that simply must be overcome before they can properly issue political obligations. But because proper institution building takes time, this will take time. On the other hand, the alternative to fixing global public institutions seems to be to settle for unilateralism of powerful states, which is worse. It is worse because it is the incarnation of the asymmetry problem currently characterising aspects of the UN institutions. Of course, unilateralism that involves enforcing illiberal principles is worse than unilateralism that involves enforcing liberal principles. But that is not the point here. Since I’m after identifying the liberal ideal to strive for, the main point is that all unilateralism necessarily involves interaction between states as unequals subject to contingent and asymmetrical restrictions. Unilateral- ism cannot in principle enable global justice. After all, even an internally just, powerful state cannot rightfully enable global justice because it cannot in principle be impartial, have rightful standing in particular transnational disputes or assume rightful authority over global systems of interaction. The reason is simply that any particular state can only represent the general united will of its own people. Therefore, it cannot in principle have the rightful authority to specify, apply or enforce private or public right beyond its own territory since it does not represent the world as such. Indeed, even the state’s own, reasonably contested borders are beyond its own rightful authority. Because siding with unilateralism cannot in principle lead to rightful relations, the only way forward with regard to establishing global justice requires reforming the UN by working towards eliminating the institutional asymmetries that currently exist. And as they are eliminated, liberal states can and must increase their institutional commitment to them too. Finally, since the UN has much of the required institutional framework in place, also the prudent way seems to be to reform it rather than start all over again. After all, just as with states, there is no good reason to think that starting all over again is going to be much easier and get us much further, faster, than reform will. A Kantian conception of global justice 2057 
work_jq3bmf6libh5da2e4hkrnusw7u	----	Environmental justice: partnerships for communication. NIEHS News- Middle East Agricultural Health Study An agreement to study the human health effects of pesticides in the Middle East enthusiastically adopted by foreignR 3 ters and other officials from sevet4 East countries, the West Bank,, the European Community, the United States. TheM s" Agricultural Health Study,cbev y the NIEHS and the Fogarty International Center at the National Institutes of Health, was approved at a meeting in Manama, Bahrain, in October 1994. The next step took place in December, when technical experts from the Middle East and North America met at a workshop in Cairo to iron out the details of the NIH initiative. The Agricultural Health Study is part of the broader Middle East Peace Initiative. While the meeting of foreign ministers in Bahrain set the NIH proposal in motion, the regional workshop in Egypt addressed logistical issues related to gathering data, current collaborations on pesticide use, and implementing the study. Scientific experts from academic insti- tutions and government agencies from the Middle East region expressed concern frustration that dramatic environment impacts of population changes and agrc tural, technological, and industrial ad- vances in the region have not been ade- quately studied and are often unrecognized by government officials and the general public. Participants proposed collaborative research, communication, and education strategies to address these environmental concerns. Studies on the health effects of agricultural chemicals were identified as a top priority. Agricultural chemicals are usually mix- tures of chemicals, some of which can damage the environment and accumulate in ecosystems, including ground- and sur- face water, and contaminate the food sup- ply. Many agricultural chemicals can cause a range of adverse human health effects. Children may be particularly vulnerable. The NIH proposal attempts to better de- fine the extent of adverse health effects in the Middle East region, promote the safe use of pesticides, and ensure the applica- tions of the most effective pesticide-man- agement guidelines. In densely populated areas, large quan- tities of pesticides are used annually. In addition to pesticides, fertilizers, growth regulators, food additives, synthetic dyes, detergents, and dusts are sources of pollu- tion in the environment. There is an urgent need to health ts reand e chanisms of to e major compo 1 is a research .,ncer conse c8tittf | | exposure f populations. Potential collaborators for these health effects studies have been iden- tified in Egypt, Israel, Jordan, the West Bank and the Gaza Strip, and the United States. Scientists from other nations in the region will also be invited to particia. The experimental plan will address neurological deficits, childhood develop- ment, birth defects, od hypertension as health endpoints tc measurements will assess ner*"4" velocity, ace- tylcholinest vuci, ale- assessmet, hearing, bloo and gross po f the is the Peace E ships designedi rjunior- frot cipating Uni to gain experi- rch that will be used irho S. The training ini- IV a cadre of young ea s dedicated to environ- me o ccupational health in estab- lish torships and enhance the work- ing retionship among scientists in the United States and the Middle East. The proposed collaborative studies among scientists within the region will allow new intervention and prevention approaches to better manage the risks of agricultural chemical use. Furthermore, communication and health education strategies involving the NIH proposal will assist national policymakers and local cow, ens of he * Communities n n, d *Assessment ofAviable Dat * Training Peace Felos * Humn Health Effcs Reseac authorities in devising mitigation plans on the use of agricultural chemicals. ental Justice: ips for ation ng the goals of the NIEHS f search aimed at achieving F P If+~htajustice for all populations. Assays of the health effects of environmen- tal pollution, as well as regulations based on such assays, are often performed with little or no input from affected communi- ties. The purpose of the communication program is to institute mechanisms to brie this communication gap so that the communities involved have a role in iden- tifyng and defining problems and risks related to environmental health and in shaping future research approaches to such problems. A Request for Applications was initially issued in January 1994. Applications were evaluated by a Special Review Committee composed of environmental health researchers, health care providers, and community representatives. Three awards, two of which address Native American issues, were made in September 1994. Environmental investigators at Clark University, in collaboration with Native Americans for a Clean Environment and Citizen Alert Native American Program, are seeking to increase the awareness of Native American communities exposed to radiation contamination. These communi- ties bear a disproportionate burden of risk from nuclear activities, ranging from urani- um mining to waste disposal. Members of the affected communities are ill prepared to understand and deal with the hazards of radiation contamination. The grantee will design and implement a plan for risk man- agement and prevention activities at the Western Shoshone Nation near the Nevada Test Site and at the Cherokee Nation at Sequoyah Fuels, Oklahoma, a uranium processing facility in operation for 23 years. Education modules of two types will be implemented: community modules, created exclusively by Native American collaborators; and health educa- tion modules, created by scientists and health care provider trainers. Each of these components involves the community in learning about health risks and in sharing their perspectives of this risk with scientists and health professionals. Relevant materi- als and strategies will be shared with other Native American communities. 22 Environmental Health Perspectives 9- The State University of New York, Albany, in collaboration with St. Regis Mohawk Health Services, intends to design community-based strategies for environmental health education, outreach, and training in the Akwesasne Mohawk community, which is adjacent to a Super- fund site in the Great Lakes Basin-St. Lawrence River watershed. Environmental hazards have resulted from the rapid tran- sition from an agricultural to an industrial environment. Industry appears to have produced high levels of polychlorinated biphenyls (PCBs) from manufacture of hydraulic fluids until 1973. Sludge con- taining PCBs was placed in disposal pits adjacent to the Akwesasne community and has been found in water and soil in the area. Sediments have been found in the St. Lawrence River, which serves as a major source of fish, a protein staple in the Mohawk diet. Contaminants have been found in human breast milk, and a num- ber of symptom-related health effects have been experienced by residents. Chronic fluoride poisoning has been observed in cattle, resulting from smokestacks emis- sions of a metal smelter. Lethal levels of organochlorines have been found in tissues of some animals in the immediate environ- ment. This project is led and directed by members of the target community. It is implemented, evaluated, and disseminated explicitly through community members. The project team has worked together extensively and has nine years of experi- ence in communicating information on health risks to the community. A third grant funded under this initia- tive was awarded to a community organi- zation, Citizens for a Better Environment. This group, in collaboration with the Labor Occupational Safety and Health Program and the Center for Occupational and Environmental Health at UCLA and the Community Health Foundation, aims to educate community members and health care providers, promote adoption of pollution prevention measures, and estab- lish a community-based strategy for reduc- ing community and worker exposure to environmental pollutants in southeast Los Angeles, a highly industrialized area home to a low-income population, approximate- ly 90% Hispanic/Latino. Pollution sources include large, highly industrialized tracts where chemicals are routinely or acciden- tally released, severe urban smog, occupa- tional exposures, and lead exposures. The zip code area which includes southeast Los Angeles was identified as the dirtiest subre- gion within the state of California by the EPA. About 70 manufacturing firms in South East Los Angeles reported releases of 1.4 million pounds of toxic chemicals into the air in 1992. A major objective of this project is analysis of data to affirm the list of environmental pollutants already known and to determine whether gaps exist in the data. Environmental health issues of prior- ity to the community will be determined and addressed. CBE has already received invitations from mayors and council mem- bers to help reduce community toxics exposure. CBE helped to develop LA CAUSE (Los Angeles Communities Assembled and United for a Sustainable Environment), a community education project that seeks to promote environmen- tally friendly jobs. LA CAUSE will involve and educate community members and has a history of reaching residents and workers from the region. Sources of health hazards will be identified, and strategies will be developed to attempt exposure reduction. Book Addresses Parents' Concerns about Toxins I "Everything causes cancer," according to the old cliche. Now parents, pediatricians, social workers, and oth- ers concerned about children's health have a concise guide, Raising Children Toxic Free, to help them identify the real toxic hazards and adopt practical, simple precautions to protect chil- dren and themselves. The book covers toxins that impact reproduction, behavior, development, envi- ronmental neurotoxins, and cancer. Agents discussed specifically include lead, mercury, asbestos, pesticides, radiation, tobacco, solvents and PCBs, and air pollution. The book was written by Herbert L. Needleman, profes- sor of psychiatry and pediatrics at the University of Pittsburgh School of Medicine, and Philip J. Landrigan, profes- sor of pediatrics and chair of community medicine and director of the NIEHS Environmental Health Sciences Center at Mount Sinai School of Medicine in New York City. The publisher is Farrar, Straus and Giroux, New York. While some of the remedies suggested require community and political action (asbestos in the schools), other remedial action is quite direct. For example, parents can air clothes just back from the dryclean- ers outdoors to reduce exposure to per- chloroethylene fumes in the home. Avoiding fruits and vegetables imported from outside the United States, where pes- ticides may not be properly used, is anoth- er simple step. NIEHS Awards Grants for EMF Research NIEHS and the Department of Energy are coordinating the implementation of the 1992 Energy Policy Act (Section 2118 of Public Law 102-486), which was signed in October 1992. This is a five-year federally coordinated effort to evaluate developing technologies and research related to the effects on biological systems of exposure to electric and magnetic fields produced by the generation, transmission, and use of electric energy. The Department of Energy is responsi- ble for developing technologies to charac- terize and mitigate these fields, while NIEHS is responsible for coordinating and conduct- ing studies to evaluate the possible adverse health effects related to exposures to these fields and for communicating of these findings to policymakers and the public. The NIEHS has a long history of funding research in this area. In August 1994, the National Toxicology Program began two- year rodent studies of the effects of mag- netic fields. Magnetic fields, rather than electric, are being evaluated because epidemiological studies are most consistent for an association of cancer with magnetic fields. New grants administered through the NIEHS Division of Extramural Research and Training, funded by the Energy Policy Act of 1992 (Section 2118 of Public Law 102-486) have further broadened NIEHS research on electromagnetic fields. Newly awarded grants funded by the Energy Policy act are: * Dean Astumian, University of Chicago: Interactions between low-frequency AC electric fields and yeast membrane pro- teins; * Elizabeth Balcer-Kubiczek, University of Maryland, Baltimore: Effects of 60 Hz EMFs on the expression of genes associ- ated with cancer in human cell lines, HL-60 and MCF-7; * David Binninger, Florida Atlantic University, Boca Raton: Molecular basis for the effects of 60 Hz EMFs on gene expression (transcription) in yeast; * Craig Byus, University of California, Volume 103, Number 1, January 1995 23 
work_jqihww2udbgrfc6has3s425t7y	----	Microsoft Word - 116 Rizza, et al. Do-it-yourself justice: the 2011 Vancouver Riots Proceedings of the 10 th International ISCRAM Conference – Baden-Baden, Germany, May 2013 T. Comes, F. Fiedrich, S. Fortier, J. Geldermann and T. Müller, eds. 411 “Do-it-yourself justice”: considerations of social media use in a crisis situation: the case of the 2011 Vancouver riots Caroline Rizza European Commission, JRC – Telecom ParisTech caroline.rizza@telecom-paristech.fr Ângela Guimarães Pereira European Commission, JRC angela.pereira@jrc.ec.europa.eu Paula Curvelo European Commission, JRC paula.curvelo@jrc.ec.europa.eu ABSTRACT On 15 June 2011, the ice hockey Stanley Cup final series between the Vancouver Canucks and the Boston Bruins took place in Vancouver. As the Vancouver Canucks were losing, riots started in downtown Vancouver. Social media were used to communicate between authorities and citizens, including the rioters. The media reporting on these events frame these communications with different narratives, which in turn raise different ethical considerations. This paper identifies those narratives and reflects upon the ideas of justice, fairness, responsibility, accountability and integrity as key ethical considerations. The paper also identifies some difficulties arising from the use of social media in crisis situations. Keywords Crisis situations; social media, ethics; media narratives. INTRODUCTION On 15 June 2011, the ice hockey Stanley Cup final took place between the Vancouver Canucks and the Boston Bruins in Vancouver, Canada. Riots started downtown as the Vancouver Canucks were losing the final. The riots lasted all night long (Furlong and Keefe 2011). At the same time and following the event, different people (mainly rioters, local authority officers, and Vancouver citizens) used social media to ‘cover’ the riots: the rioters took pictures and video of themselves and uploaded them; local authorities used social media to communicate with fellow citizens 1 and Vancouver citizens to help local authorities identify rioters 2 , by sharing and tagging pictures of rioters and, last but not least, to enforce justice by themselves 3 . The use of social media during the riots has raised issues such as the quality of legal processes in which such media are used to provide evidence, mob behaviour, or vigilante justice. In this paper we look at the story from the point of view of the news media narratives, i.e. what the media coverage echoed and commented on at the time of the riots, to gain an insight into the imaginaries behind the use of social media such as Facebook and Twitter. In particular, we will be looking at narratives about social media and ethical considerations as portrayed by the news media. 1 See the VPD website: https://riot2011.vpd.ca/ [last visit 11/02/2013]. 2 See e.g. https://www.facebook.com/vancouverriot2011photos?sk=photos; http://www.identifyrioters.com/?photo=64; or http://www.techi.com/2011/06/social-media-used-to-identify- vancouver-riot-suspects/ [last visit 11/02/2013]. 3 See the VPD website: http://vpdreleases.icontext.com/2011/06/20/vpd-statement/ [last visit 11/02/2013]. Rizza, et al. Do-it-yourself justice: the 2011 Vancouver Riots Proceedings of the 10 th International ISCRAM Conference – Baden-Baden, Germany, May 2013 T. Comes, F. Fiedrich, S. Fortier, J. Geldermann and T. Müller, eds. 412 STATE OF THE ART The study of crowd dynamics has been in the literature for some decades (Gorringe, & Rosie, 2011). The authors provide a chronology of contemporary understanding of crowd behaviour. The representation of crowds as an irrational, senseless herd was challenged in the 1960s. At that time, crowds were seen as an attempt to short-circuit the political system and police intervention was considered the key solution to restore order in riot situations. The rational and interactive nature of collective behaviour was not given much consideration until later (Gorringe & Rosie, 2011). In the case of Vancouver 2011, the ‘crowd effect’ played an important role during the riots, but also after the riots, as citizens became involved in law enforcement activities in response to the Vancouver Police Department (VPD)’s asking them to send pictures and videos or identify the rioters. In a crisis situation, the involvement of citizens in developing emergency response and relief plans for their immediate community is not new (Heverin, 2011). More specifically, in a violent crisis situation, citizens may collectively respond with a strong sense of justice, by demanding the arrest and punishment of the perpetrators (Heverin, 2011). However, in comparison to other cases of citizen involvement, the collective involvement of citizens in law enforcement activities – whether this is spontaneous or inspired by explicit requests such as the VPD’s – creates a greater risk of abuse and unexpected severe consequences. Heverin (2011)underlines that this risk increases exponentially with the use of social media, which “increase the visibility of participation, allow for instantaneous dissemination of information about police and perpetrators to a wide audience”. This is what happened after the Vancouver riots. This spontaneous way of capturing data in a crisis situation is also called “crowd-sourced surveillance” (Samuel, 2011). The author believes that this kind of surveillance is not without dangers: whatever the goodwill at the beginning of the public disclosure of information about the rioters, it has been belied by an increasingly violent tone; even if analysts and internet users condemn the Vancouverite social media responses as those of a “cruel, faceless, vindictive mob”, this does not take away from general awareness of how social media such as Facebook have been used and could be used to target any particular group; the Vancouver model of crowd-sourced law enforcement could be adopted in repressive jurisdictions or circumstances. Social media could be, and have already been, used by law enforcement officers to identify criminals. In this context, the ethical considerations with regard to this use of social media should focus on the legitimacy of such material (pictures, videos) and its use in identifying perpetrators and pressing charges. But automated or crowd-sourced identification could also be used by repressive law enforcement systems. This is a major cause of concern from the point of view of human rights. Another ethical consideration arises when citizens themselves initiate and participate in the crowd-sourced identification of others using social media, even if they are asked to do so by law enforcement officers. Crowd-sourced surveillance by citizens cannot be fully controlled by law enforcement officers, as was the case during the Vancouver riots. In the literature, a crisis situation has been defined by reference to the degree of emergency that overrides a normal democratic process in decision-making (Mullins, 2005). In such a situation, decision-makers are likely to have to make complex ethical judgments under great uncertainty, time pressure, and heightened public scrutiny (Svedin, 2011). Public trust in governing institutions depends greatly on the way decision-makers deal with the ethical dilemmas and normative challenges that arise in a crisis. Most of these dilemmas come to the fore in circumstances where a number of fundamental ethical values are threatened in the light of modern legislation on human rights. The essence of a crisis lies in this threat to fundamental values. A crisis situation is characterised by the presence of value conflicts, doubts about the legitimacy of intervention, contradictory views regarding the private and public spheres, disruption of democratic processes, inadequate communication and participation, to mention but a few aspects (Svedin, 2011). In Western tradition, ethical principles are based on values that are the result of millennia of religious and humanistic study and practice, and are recognised by those who share the heritage of a democratic society (Zack, 2009). In a crisis situation, how good or bad the circumstances are, is determined by expectations: “bad circumstances are not an excuse for bad ethics” (Zack, 2009). The consequences of various alternative solutions can in some cases be quantified, using theories of risk assessment by trying to answer the following three questions: “What can go wrong?”, “How likely is it to happen?”, and “What are the consequences?” (Budinger, & Budinger, 2006). On this basis, there is little doubt that the Vancouver riots constituted a crisis situation during which local decision-makers (the Mayor, VPD officers, etc.) were obliged to make decisions quickly to protect the city, its citizens and their property from rioters. The call for volunteers to send pictures and videos and identify rioters online can be considered part of these decisions. The way citizens began to enforce vigilante justice, what we will call “do it yourself justice”, even before the VPD asked them to do so, infringed ethical values, even if at the time it appeared to them to be the right course of action. Responsibility therefore lies with local authorities. METHODOLOGY AND RESULTS Our aim is to examine the news media narratives around the time of the riots, i.e. what the media echoed and Rizza, et al. Do-it-yourself justice: the 2011 Vancouver Riots Proceedings of the 10 th International ISCRAM Conference – Baden-Baden, Germany, May 2013 T. Comes, F. Fiedrich, S. Fortier, J. Geldermann and T. Müller, eds. 413 commented on, in relation to ethics and social networks. We agree with the statement that “the construction of news is most of all a reconstruction of available discourses” (van Dick, 1983). The riots received a lot of coverage in the Canadian news media. They also grabbed the attention of bloggers, and the reactions they provoked in the media and among the public show that the use of social networks raises awareness of how some ethical and moral values that were once taken for granted have now become moot points: • Social media have proved an unexpected source of pictures, videos, etc. to help the VPD with their investigations and help them identify rioters. • The use of social media in the current investigation process presents limitations and risks of error. • Police and legal systems are overwhelmed by citizens’ involvement in the process of identification through social media websites. • Because of their technical potential, social media can be used in support of mob behavior. • The content of social media was used by citizens to enforce vigilante justice. • Social media is a means of communicating with the public in crisis situations. DISCUSSION In this section we will examine media narratives and the ethical issues they raise, starting from the presumption that the case of the Vancouver riots is an example of a “crisis situation” where a “human crowd”, sends digital material to identify rioters in response to a police request, and feels empowered to enforce justice by itself thanks to social media. We have identified the following main media narratives for this case: • Unverifiable quality - a contribution of questionable quality from social media: it cannot be checked and can lead to unfairness and injustice; considerations regarding the legitimacy of using such material for police investigation. • Institutional Unpreparedness - an unexpected and unmanageable social media contribution to an institutionalised procedure of enquiry: even though it was the authorities who requested it, no procedure seems to be in place to deal with the material received. • Unintended do it yourself society - do it yourself justice: citizens overruling authorities and enforcing justice on their own terms and by their own means. • Unintended do it yourself society - mob behaviour: following other trends, mainly in political contexts, social media showed its potential for prompting people to act. Anyone is entitled to take action and whoever does so decides what constitutes a legitimate motive to act. • Authorised do it yourself society - innocuous use: social media as a means of communication between authorities and citizens. The quality of social media material and legitimacy of its use in law enforcement and charge processes The media narratives highlight the problems related to the governance of crisis situations and in particular the authorities’ use of social media in those situations. Whilst social media have provided an incommensurable trove of data, the use of such media in unexpected ways has disturbed the VPD’s usual process of investigation. The VPD got hold of suspects’ names before finding out exactly what they did and where they did it. Pictures and videos can easily be misinterpreted and police have to confirm the legitimacy of using them. These considerations lead us to examine this issue in terms of quality. In Europe, computer evidence must fulfill a number of criteria. These are admissibility, which means the evidence must conform to certain legal rules before it can be presented in court; authenticity, which means it must be possible to relate it to the incident; completeness, which means it must tell the whole story, not a biased or partial version of it; and reliability, which means its authenticity cannot be questioned (Brezinski, and Killalea, 2002). In the case of the Vancouver riots, it appears that the material posted by social networkers did not tell the whole story. It therefore did not fulfill the completeness and authenticity criteria. We would argue that the most relevant ethical consideration that emerges from this narrative relates to fairness Rizza, et al. Do-it-yourself justice: the 2011 Vancouver Riots Proceedings of the 10 th International ISCRAM Conference – Baden-Baden, Germany, May 2013 T. Comes, F. Fiedrich, S. Fortier, J. Geldermann and T. Müller, eds. 414 and justice, in light of the difficulties it created with regard to institutionalised procedures and the unintended use of technology. Unregulated empowerment Sophisticated technical ability is not needed to use social media to diffuse, publish or use information about a person. In the context of the riots, news media tell us that the VPD asked citizens to provide relevant material that could help them identify rioters. Despite the fact that citizens are supposed to be aware of the law as far as the online publication of “personal information” is concerned, actual awareness of such laws is low. In crisis situations, it is more likely that the law will be flouted and that people will not try to find out what the relevant legal provisions are. This problem is aggravated by the fact that, in this case, an authority asked citizens to contribute (‘to send’) material. This request made citizens feel “authorised” to publish their material. But is it fair to ask citizens to be aware of these legal provisions, let alone to be able to judge what they can do if called on to act by an authority? We would argue that whilst the ethical responsibility for the authenticity of material sent by individuals could be attributed to individuals, accountability for any of the consequences of empowering citizens and involving them in law enforcement remains with the authorities themselves. It is clear that the consequences of “crowd-sourced surveillance” (Samuel, 2011) during the Vancouver riots were neither fully controlled nor thoroughly reflected upon. The ethical considerations that are most relevant in this narrative relate to integrity, responsibility, accountability and fairness. Social media vigilantes The news media narratives shed light on the fuzzy boundaries between supporting police departments and enforcing “vigilante justice”. They also show that the technical potential of social media i.e. instantaneous diffusion of information, tags, etc.) has enabled a shift from supporting the authorities to “do it yourself justice”. News media regard social media vigilantism as a real danger. What happened during the Vancouver riots should not be considered an exception but a real threat to Western democracies (Samuel, 2011). Henry (2011) analyses the Vancouver riots from the legal point of view, reminding readers that exploring legal considerations about the hockey rioters marks “us” as a democratic society. A “do it yourself justice” is not acceptable looking at the consequences of acts (e.g. Velasquez, et al., 2009) and considering that, no matter how bad the circumstances are in a crisis situation “bad ethics” is not the answer (Zack, 2009). Moreover, “do it yourself justice” enforced by vigilante citizens using social media, did not respect normal legal process, in which a rushed judgment is not admissible when evidence is overwhelming (Henry, 2011). The ethical considerations of this narrative are related to fairness and justice, as in the John Locke “rights ethics” (Internet Encyclopedia of Philosophy, 2001): “all men equally have the right to punish transgressors” but “men agreed to delegate this function to certain officers”. Then, the Vancouver “do it yourself justice” episode illustrates the infringement of a long-established “social contract” in which the function of establishing the law is assigned to the State. Who decides what an issue is Another interesting issue arising from these events and other events involving the use of social media is issue framing. This is closely connected with the “mob behaviour” narrative, in which any of us can initiate discussion of an issue online and invite others to participate in the discussion. This is particularly pertinent to the idea of a “do it yourself society”. Traditional ways of framing issues are fragmented, with anyone being entitled to voice what is important and relevant, raising ethical concerns around justice, responsibility and accountability. CONCLUSION In these concluding remarks, we draw on ideas of “imagined community” (Anderson, 2006). For example, a “nation” is in important respects “imagined” since each of its members will never know or meet, or even hear of, most of their fellow members, but the image of their communion lives in the mind of each member (Anderson, 2006). The nation is thus considered a “community” through the concept of “fraternity”. Vancouver citizens (the imagined community) reacted to the riots, first by sending digital material to the VPD, and then by trying to find and punish the rioters by themselves. They acted to protect what the “identity” and “reputation” of Rizza, et al. Do-it-yourself justice: the 2011 Vancouver Riots Proceedings of the 10 th International ISCRAM Conference – Baden-Baden, Germany, May 2013 T. Comes, F. Fiedrich, S. Fortier, J. Geldermann and T. Müller, eds. 415 Vancouver’s community against what they saw as an attempt to undermine it. Pictures of rioters published online with the caption “Wanted for crimes against Vancouver” 4 illustrate this sentiment. In response to the riots, Vancouverites who share and belong to the same community of Vancouver have engaged in “do it yourself justice”, authorised by the VPD’s request for digital evidence and emboldened by the potential of social media. Mob behaviour can be exponentially increased by the use of social media: the opportunities they afford “increase the visibility of participation, allow for instantaneous dissemination of information about police and perpetrators to a wide audience” (Heverin, 2011). In this context, it is important for authorities to establish clear rules regarding citizen cooperation in a crisis situation: supporting justice does not mean allowing citizens to substitute the police or other agents of the law. This is of the utmost importance for fairness and the respect of ‘our’ democratic values (Henry, 2011). REFERENCES 1. Anderson, B. (2006) Imagined Communities, London. 2. Brezinski, D. and Killalea, T. (2002) Guidelines for evidence collection and archiving, The Internet Society, February 2002, http://www.ietf.org/rfc/rfc3227.txt [last visit 21/11/2012] 3. Budinger, T. F. and Budinger, M. D. (2006) Ethics of emerging Technologies: Scientific Facts and Moral Challenges. Hoboken, New Jersey: John wiley & sons, Inc. 4. van Dijk, T. A. (1983) Discourse analysis: its development and application to the structure of news, Journal of Communication, Volume 33:2 20–43, Spring 1983. 5. Furlong, J. and Keefe, D. J. (2011)`The Night the City became a Stadium. Independent Review of the 2011 Vancouver Stanley Cup Playoffs Riot. Government of British Columbia Publication. http://www.pssg.gov.bc.ca/vancouverriotreview/docs/riot-review-report.pdf [last visit 21/11/2012] 6. Gorringe, H. and Rosie M. (2011) King mob: perceptions, prescriptions and presumptions about the policing of England's riots, Sociological Research Online, 16 (4) 17, 30 November 2011, http://www.socresonline.org.uk/16/4/17.html [last visit 21/11/2012] 7. Henry, D. Is it illegal to name and shame rioters online?, CBCnews. 20 June, 2011. http://www.cbc.ca/news/canada/story/2011/06/20/f-vp-henry.html [last visit 21/11/2012] 8. Heverin, T. (2011) Ethical concerns of Twitter use for collective crisis response. IEEE Conference Proceedings. pp. 625–626, 23-27 May 2011. http://ieeexplore.ieee.org/stamp/stamp.jsp? tp=&arnumber=5928746 [last visit 21/11/2012] 9. Internet Encyclopedia of Philosophy, (2001) John Locke, April 2001. http://www.iep.utm.edu/locke/ [last visit 21/11/2012] 10. Mullins, S. (2005) Ethical crisis management?, International Journal of Management and Decision Making, Vol. 6, No.3/4 pp. 372 – 381. 11. Samuel, A. (2011) Six keys to putting the crowdsourced surveillance genie back in the lamp, Harvard Business Review, 30 June, 2011. http://blogs.hbr.org/samuel/2011/06/6-ways-to-put-the- crowdsourced.html [last visit 21/11/2012] 12. Svedin L. (Ed.) (2011), Ethical and Crisis Management. Information Age Publishing. 13. Velasquez, M. et al. (2009) A Framework for Thinking Ethically. Santa Clara University. On-line: http://www.scu.edu/ethics/practicing/decision/framework.html [last visit: 21/11/2012] 14. Zack, N. (2009). Ethics for Disaster. Maryland: Rowman & Littlefield Publishers. 4 See e.g. http://www.techi.com/2011/06/social-media-used-to-identify-vancouver-riot-suspects/ [last visit: 11/02/2013] 
work_jr2opjt32vgrph3mijq6gp5akm	----	291-311_EUC_104684.indd Comparative Criminal Justice Beyond Ethnocentricism and Relativism David Nelken University of Macerata, Italy A B S T R A C T How can the study of comparative criminal justice avoid the opposite angers of ethnocentricism and relativism? The problem is examined taking as an example Cavadino and Dignan’s recent analysis of differences in prison rates. The case is made that more attention needs to be given to understanding how different criminal justice systems actually produce prison rates as well as to interpreting the ideas and values that animate those inside and outside the system. K E Y W O R D S Comparative Criminal Justice / Comparative Criminal Procedure / Ethnocentricism and Relativism / Processes of Attrition / Garantismo / Gedogen / Tolerance. Comparative criminal justice: Making sense of difference The task of comparative criminal justice, most scholars would agree, is to com pare and contrast our ways of responding to crime with those practised else where. It also often involves, even if it does not necessarily have to do so, borrowing from, or at least trying to learn from, what is done in other places. It would seem obvious therefore that, if it is to be at all helpful, com- parison requires understanding and interpreting what those in other places are actually trying to do. What I want to show in this paper is that the implications of this apparently banal point are not always straightforward. The reason for this is that it can be difficult not to fall foul of two opposing dangers. On the one hand, there is the risk of being ethnocentric – assuming that what we do, our way of thinking about and responding to crime, is uni- versally shared or, at least, that it would be right for everyone else. On the Volume 6 (4): 291–311: 1477-3708 DOI: 10.1177/1477370809104684 Copyright © 2009 European Society of Criminology and SAGE Publications Los Angeles, London, New Delhi, Singapore and Washington DC www.sagepublications.com ARTICLES 292 European Journal of Criminology 6(4) other hand, there is the temptation of relativism, the view that we will never really be able to grasp what others are doing and that we can have no basis for evaluating whether what they do is right. To get beyond these alternatives requires a careful mix of explanatory and interpretative strategies (Nelken 1994).1 We need to recognize that, although criminal justice practices gain their sense from the setting that shapes them and the conditions with which they have to deal, they can also be understood by outsiders and need to be evaluated according to cosmopolitan and not only local criteria. But this is easier said than done. It is inevitable that our perception of others will be coloured to some extent by our own cultural starting points – even when we say that what we are doing is trying to learn from them. And criminologists do also have their own shared cultural common-sense. We tend to argue that the rise in crime rates is exaggerated by the media and the politicians, that we should avoid creating even more deviance by over-reacting to offending, that the availability of work and decent housing are more effective ways of reducing crime than whatever can be delivered by criminal justice. In the face of the changes brought about by neo-liberalism, we plead instead for policies based on inclusion, solidarity, tolerance and respect for difference. Not least, we recommend that politicians listen to pro- fessionals rather than seeking easy popularity. There may be little to quarrel with in these claims as aspirations. But when our study of other places merely confirms what we already thought was true and right, we need to be aware that we may not have given sufficient care to analysing the simi- larities and differences that may lie behind the practices we are studying. The same applies to the more specific biases that come from our local cultural backgrounds. Policy makers in the Netherlands, for example, tend to look for pragmatic, practically workable solutions to crime – as they do when seeking to resolve other types of problem. In Dutch cultural common- sense, being pragmatic means not being dogmatic, but elsewhere these terms may have a different relationship. In Italy, the term ‘pragmatic’ suggests behaviour that is not guided by principles and that therefore borders on being unprincipled. Which is not to say the Italians in everyday life are not often pragmatic, and the Dutch never principled. Far from it. The point is rather how difficult it can be for us to see the limits of our ways of seeing things. As the American philosopher Morgenbesser reportedly used to say, ‘pragmatism is all right in theory’! But if the question is when it would be appropriate not to be pragmatic, a pragmatic approach itself may not be 1 Francis Pakes (2004: 13ff) suggests that those who favour an exclusively interpretative approach to social life (I am not in fact one of them) must necessarily be relativists. Whether or not this is true is doubtful, but those who rely only on a positivistic strategy certainly do run a high risk of ethnocentrism. Nelken Comparative criminal justice 293 able to provide the answer we need. Likewise, it is impossible to specify, in principle, all the contingencies that may play a role in shaping the everyday application of principles. If we are to come close to grasping successfully what other systems of criminal justice are actually trying to do, we must avoid attributing to them intentions on the basis of what we imagine they should be doing – even if these are the best of intentions. Likewise – but this can be even more tricky – we should be careful not to deduce intentions from the outcomes being achieved. But it is often tempting – especially for the purposes of advancing a given agenda in local debates – to try to do just that. A good current example in my view can be found in some of the arguments being used as part of the important debate concerning the problem of growing punitiveness in responding to crime both in the USA and elsewhere. In briefly reviewing this debate I shall suggest that criminologists from Anglo-American backgrounds engaged in cross-cultural research need to devote more attention to what they and others mean by punitiveness and tolerance. I shall first say something about the so-called ‘punitive turn’ and then describe some recent attempts to link punishment to differences in political economy. In seeking to show the dangers of ethnocentrism, and the way more attention to interpretative questions might help to avoid them, I shall illustrate my argument with accounts of what may be some relatively un- familiar features of penal justice in Italy. The choice of Italy is not only a reflection of the fact that this is the country whose criminal justice system I now know best. Italy is also, surprisingly, the major European country with one of the lowest levels of offenders in prison in proportion to its popu- lation (Proband 2008). The ‘punitive turn’: America as dystopia – Europe as utopia? Criminal justice systems today face many common problems and increas- ingly seem to be responding in similar ways to ‘risk society’ (Beck 1992). As Hans Boutellier puts it, people are now seeking a ‘safety utopia’ (Boutellier 2004). Like all utopias, the attempt to impose this one can be dangerous for those who get in the way. But perhaps it is also dangerous for the rest of us! Hence the concern amongst many criminologists about growing punitiveness. Most of these writers do not argue that prison should be abolished. Still less do they claim that punishment is never necessary or justified, or that tolerance is always the better option – the decreased social tolerance of some forms of criminal or deviant behaviour may even be welcomed. Their con cern is about what Willem De Haan has described as the ‘bad conscience 294 European Journal of Criminology 6(4) of punishment’ (De Haan 1990); the economic and political mobilization of punitiveness – especially, but not only, in the United States – that is described in books with titles such as Crime Control as Industry (Christie 1993), ‘Making Crime Pay’ (Beckett 1997), and, most recently, Governing through Crime (Simon 2007). Why is increasing resort to punishment and, in particular, greater use of prison widely felt to be necessary and appropriate? Even though all the evidence suggests that crime levels have been decreasing, trends in punish- ment, to a large extent, follow their own timing and have their own logic. In his recent influential thesis about what he calls the ‘culture of control’, David Garland (2001) offers a pessimistic account of this development, arguing that ‘penal welfarism’ has been displaced by the politicization of crime and the growth of popular punitiveness. He notes the privileging of public protection and the claim that ‘prison works’, and describes the changes in the emotional tone of crime policy from decency and humanity to insecurity, anger and resentment. What remains controversial, however, is how far what others have called ‘the penal turn’ should be seen as a result of widespread late-modern changes in social and economic conditions, or rather treated as something tied more closely to the political and legal culture of the USA. What some observers see as an essential aspect of late modern- ity others see as ethnocentric projection – an Anglo-American tendency to assume that what others do in foreign places and foreign languages is less import ant, and that they too are bound to come into line eventually. Such critics tell us that we can and must avoid the dystopia (Zedner 2002) of assuming that Europe is also bound to end up with something like the bloated US penal system, which now embraces more than 2 million prisoners. They insist that we need to recognize and explore the differences between the USA and Europe and even within Europe, differences which suggest that there are multiple cultures of control rather than just one culture of control. Some European countries are seen as exemplifying the possibility of maintaining a less punitive climate. Until some years ago, for example, the Netherlands was very much in the group of those countries from which it was proposed to learn how to be less punitive. But things have changed, and it has been calculated that for a period recently the Dutch prison population increased at a faster rate even than that in the United States.2 Now it is the Scandinavian countries that are seen as beacons of tolerance. 2 Its official level of imprisonment, however – like that of other European countries – is still nowhere near the US level, and it has recently again begun to decline. Nelken Comparative criminal justice 295 Punitiveness and political economy What explains the existence of contrasts in cultures of control? A valuable and innovative contribution to answering this question has been provided by Cavadino and Dignan in their book about comparative penal systems (Cavadino and Dignan 2006a). Their analysis has rightly been much praised,3 and has been put to work by other leading writers who are trying to illustrate what they call ‘differences in penal tolerance’ so as to stop the dangerous slide in England and Wales towards an ever-expanding prison system (see e.g. Lacey 2008; Reiner 2007). Ruling out any direct cor relation with cross-national differences in public support for prison sentences, Cavadino and Dignan argue that variations in incarceration rates – which they take as a rough proxy for levels of punitiveness – are related to con- trasting kinds of political economy. As seen in Table 1 (a slightly simplified version of the table that is the linchpin of their thesis), rates of imprison- ment in 12 modern industrial societies vary considerably between what they call neo-liberal, conservative-corporatist, social democratic, and oriental- corporatist types of political economy.4 They argue that the neo-liberal societies have the highest prison rates because they follow social and economic policies that lead to what they describe as ‘exclusionary cultural attitudes towards our deviant and mar- ginalised fellow citizens’ (Cavadino and Dignan 2006a: 23; 2006b: 447). On the other hand, Continental European corporatist societies (which have also been described as ‘coordinated market economies’) and, even more, Scandinavian social democratic societies, are said to ‘pursue more inclusive economic and social policies that give citizens more protection from un- fettered market forces’ and to ‘see offenders as needing resocialisation which is the responsibility of the community as a whole’ (Cavadino and Dignan 2006a: 24; 2006b: 448). Other authors have since followed up their approach. Lacey (2008), for example, seeks to explain why what she calls ‘coordinated market economies’ have the opposite effects to neo-liberal develop ments, and argues that multi-party political systems are less likely to lead to appeals to populism than two-party systems. She also makes, though does not develop, the telling point that the corporatist countries 3 There is much to admire in Cavadino and Dignan’s pioneering work, and I cannot attempt to do justice to it here. For example, they also link punitive attitudes to levels of prison privatization and the age at which young people are held to be criminally liable – though here too some caution is needed. For example, Scotland has an advanced welfare system for juveniles despite criminal liability beginning at 8. 4 In addition to quoting most of the 2002/3 figures that they drew on in their 2006 book and article, I have added, for comparison, the current 2008 figures. These are not out of line with their argument. 296 European Journal of Criminology 6(4) (and also the social democratic ones) that are so good, relatively speaking, at offering an ‘inclusive’ approach to their own citizens are perhaps less equipped than neo-liberal ones for dealing with the challenge of ‘outsider’ crimes by (illegal) immigrants (see Solivetti 2004, 2007). Problems in comparing prison rates Cavadino and Dignan’s thesis is certainly very convincing, even if it is not the only way of using differences in rates of incarceration as indicators of comparative punitiveness.5 Neo-liberalism in the USA and Europe does Table 1 Imprisonment rates per 100,000 in 12 countries, 2002/3 and 2008 2002/3 2008 Neo-liberal countries USA 701 756 South Africa 402 334 New Zealand 155 185 England and Wales 141 152 Australia 115 129 Conservative-corporatist countries Italy 100 92 Germany 98 89 Netherlands 100 100 France 93 96 Social democracies Sweden 73 74 Finland 70 64 Oriental-corporatist countries Japan 53 63 Sources: 2002/3 – Cavadino and Dignan (2006a: 22); 2008 – King’s College London, International Centre for Prison Studies, World Prison Brief, URL (accessed 3 March 2009): http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php. 5 Marcelo Aebi, when offering his annual interpretations of Council of Europe penal statistics, simply uses geographical criteria to contrast groups of countries with different levels of incarceration, distinguishing, from high to low, Eastern Europe, the Caucasian area, Central Europe, Western Europe, South Eastern Europe, Southern Europe, and the Scandinavian countries. Although certainly less ambitious and less illuminating than Cavadino and Dignan’s approach, the similarities in prison rates within each area are striking and are likely explained by wider socio-economic-political similarities and (or?) by which countries are treated locally Nelken Comparative criminal justice 297 seem to be associated with factors that lead to less concern with ‘including’ potential offenders, and its rise coincides in many of these countries with greater use of the prison. But, insofar as it claims to be an explanation of punitive ness, it should be noted that the authors actually define neo- liberalism as including punitive attitudes. In addition, their explanation may be limited in its range. Countries such as China make very heavy use of prison without being neo-liberal. Others, such as Russia (as well as South Africa, which is one of the countries they seek to explain), have seen a rise in neo-liberalism together with a reduction in the use of prison. This suggests that a wider variety of variables than those connected to neo-liberalism can lead to higher or lower punitiveness. Even if we take the argument on its own terms, however, there are a number of questions that need to be raised about relying on prison rates as an index of punitiveness. A concept as intricate as punitiveness is poorly represented by a single indicator such as the detention rate. Are crime levels the same in each of the countries being compared? What do prison rates refer to? Why is there so much volatility over time? Do prison rates only reflect factors internal to the countries concerned? How large a part of the ex planation of prison rates is to be attributed to differences in criminal procedure? Take first the problem of crime levels. For Table 1 to make sense we must assume that levels are roughly similar in each of the countries being com pared. Higher prison rates in countries dealing with higher levels of crime would not make news, and we could not easily say we were compar- ing levels of punitiveness if the crime threat being faced was different. There are reasons to think, for example, that England and Wales does have higher levels of some crimes (e.g. burglary), while Japan certainly has overall lower levels of crime. Perhaps more important, it is strange that the good things about belonging to more inclusive welfare-oriented or social democratic societies do not also reduce the level or severity of crimes being committed (and not only shape the response to them). But in that case can we still say that a country is, relatively, less ‘punitive’ if it faces less crime? Above all, we need to know how to get to grips with the variety of factors within as exemplars to conform to. It is unclear if such differences always coincide with contrasts in degrees of neo-liberalism. In complete contrast, Jan Van Dijk, a leading Dutch criminologist, has compiled a worldwide ‘punitiveness scale’ that pays scant attention to geography but subtracts the relative rank of countries in annual homicide rates from their rank in levels of incarceration (i.e. greater punitiveness means having more people in prison than would be expected from the number of murders in the country). On this criterion, Finland, Sweden and Norway turn out to be lenient but so does Australia, whereas Germany and Italy turn out to be relatively punitive (see Van Dijk 2007: 270 and 370–4). This intriguing if somewhat crude strategy begs the question of whether relative punitiveness is in fact correlated with crime levels, and in any case places too much reliance on only one crime measure. 298 European Journal of Criminology 6(4) the penal process itself that actually produce its prison rates. Many of the countries that have lower overall rates – Sweden for example, or Switzerland (or the Netherlands in its glorious period) – use shorter prison terms, but actually send relatively more people to prison than those with higher overall rates. Does this show less punitiveness than sending fewer people for longer periods? It certainly complicates any argument we may want to make about punitiveness and inclusiveness.6 The empirical basis for the argument may be less solid than it seems. Table 1 offers snapshots from 2002/ 3 and 2008, but prison rates in different countries in earlier periods have not always varied in ways that confirm the argument. And they have again diverged from it more recently. For example, after the Second World War Finland’s rate went down sharply from one far higher than its Scandinavian neighbours (187 per 100,000, Lappi-Seppälä 2001),7 whereas the Netherlands, as already mentioned, went in the opposite direction so as to give it, for a while, one of the highest rates in Europe.8 Even the USA had a moderate level of use of prison until the 1970s. According to 2006 figures, Italy, with a rate of only 65.2 per 100,000 had the lowest prison population amongst Continental European countries (Proband 2008). But the explanation for this does not lie with the generosity of its welfare or work- training systems (welfare payments mainly go to pay pensions). Its current low rate owes a lot to the recent indulto (or col lective pardon), which freed over a third of its prison inmates.9 Although this is a particularly striking example, the importance of the indulto under- lines the centrality of the criminal justice process to understanding the significance of prison rates. It is impossible to understand the figures for France, for example, without taking its amnesties and pardons into account. Aside from the difficult task of trying to ‘purify’ comparative figures of such interventions, it could also be argued that it is fruitless, since the willingness to use amnesties could itself be taken as an illustration of tolerance. Such volatility is not always easy to reconcile with claims about the dependence of such rates on underlying basic differences in political 6 Commentators on prison rates such as Aebi distinguish between ‘stock’ (how many are held in prison), ‘flow’ (how many see the inside of a prison) and the average sentence lengths in prison (for how long prisoners are held in custody). Punitiveness rankings vary considerably depending on which of these criteria is selected. 7 Finland’s rate of imprisonment declined to 154 per 100,000 in 1960, 113 in 1970, 106 in 1980, 69 in 1990 and 55 in 2000. 8 The Netherlands’ rate was only 84 in every 100,000 in 1999 but then increased in a few years to higher than 130 – occasioning an extensive academic commentary seeking to ‘explain’ this new punitiveness. The rate has again declined more recently. See Aebi and Stadnic (2007). 9 Although the indulto postdates the Council of Europe’s 2005 annual survey, the small print indicates that it was somehow taken into account, and Italy is indicated as a country that has seen a recent 36 percent decline in its prison population. Its prison population is now again rising and is predicted to shortly reach pre-indulto levels. Nelken Comparative criminal justice 299 economy. But, apart from anything else, countries’ prison rates are not just a reflection of their attitudes to offenders or potential offenders. They are also a product of reflexive responses by politicians and policy makers to their per ceptions of where their country stands in relation to other places. Thus the reduction in Finnish prison sentences and the increase in the Dutch level were in part responses to the prison rates in countries to which they thought they could and would be compared. Roy Walmsley, an adviser to the United Nations, whose figures were the source of Cavadino and Dignan’s table (see Walmsley 1999), urges all countries to shape their criminal justice prac tices so as to aim at a rate of no more than 100 prisoners per 100,000 of the population,10 and so obviously assumes that this can be brought about irrespective of more fundamental changes in a country’s political economy. Tables such as theirs, in addition to their role as explanatory aids, are therefore capable of changing policy – and are often intended to do so. They should be treated not just as a resource for explaining differences in prison rates but also as social artefacts whose func- tion lies in their utility for local struggles about penal practices. But my main concern here is not to point to the difficulties or advant- ages of using international statistics as such, but rather to ask how research on comparative incarceration rates can help us rethink our approaches to the possible sources of punitiveness and leniency rather than only reinforce what we already think and value. Criminologists who attempt to explain which states in the USA have the highest prison rates typically single out correlations with factors such as lower welfare levels, a lack of effort to ensure economic equality, and low public participation. These are all mat- ters that they tend to consider negative factors in their own right. But the so-called ‘evil causes evil’ fallacy may artificially restrict explanations of punishment as much as it does those of crime (see Cohen 1970)11 – all the more so in cross-cultural contexts. Applied to Cavadino and Dignan’s argu- ment, there does seem to be something ethnocentric about a thesis so well suited to telling policy makers in countries affected by neo-liberalism that evidence from other countries shows us that only more welfare provision and government regulation of the economy can provide a prophylactic against punitiveness. More may be going on than the adoption of a more or a less inclusive approach to (potential) offenders. A cultural propensity to inclusion may 10 Interestingly, Walmsley’s (2003) recommendations of how to reach this goal include avoiding short prison sentences even though the countries with the lowest rates include ones that make most use of such sentences. 11 I do not of course want to argue that ‘evil’ factors are never responsible for ‘evil’ out- comes – and vice versa – only to suggest that such cultural bias can prevent us seeing other possibilities. 300 European Journal of Criminology 6(4) be, in some sense, a relevant cross-cultural factor. The Dutch did pioneer a sharp reduction in the use of prison (Downes 1988), and the Italians too were leaders in the de-carceration movement, which aimed to have mental patients and others treated in the community rather than in total institutions. But the sense we give to this can be fully appreciated only by learning much more about the countries concerned. It is controversial how far the rate of immigration affects prison rates. But it is certainly important to bear in mind that some of the Scandinavian countries with low prison rates have experienced relatively small flows of immigration, or have even done their best to limit ‘economic migration’. It is also hard to learn much from a table that suggests that such differ- ent places as the Netherlands and Italy are equally punitive – and implies that this is for similar reasons of political economy. Compared with the Netherlands, for example, Italy’s inclusiveness has less to do with the guid- ing role of the regulatory state than it does with attitudes of low respect for the legality mandated by the national state, combined with a cultural emphasis on forgiveness, solidarity and fraternalism deriving from current local interpretations of a strong Catholic heritage and left-wing ideologies (Nelken 2000). Importantly, neither of Italy’s two leading belief systems allows individual victims of crime to occupy the moral high ground. In terms of socio economic factors, rather than pointing to political economy as such (even though in fact Italian criminologists have been pioneers in this style of explanation), it is important to recognize the continuing centrality in Italy not only of the family and the extended family (especially important with respect to the handling of juvenile delinquency) but also of family-like groups in maintaining social order in many sectors of public and private life. Nor is this necessarily evidence of Continental European ‘corporatist’ collab oration between business and government. Many of those helping to maintain ‘order’ in the southern regions of Italy are actually organized criminals! The importance of courts and criminal procedure in Italy To show why it is unwise to look for causes of high and low punitiveness only in the factors that are highlighted in Cavadino and Dignan’s thesis, I shall now examine, using Italy as an illustration, the question of the place that needs to be given in any explanation of punitiveness to the role of the criminal justice system itself. It is easy to see that political economy can shape punitiveness only through mediating variables.12 Yet the role of the 12 Cavadino and Dignan, who are continuing to develop their ideas, now call for more exploration of the intermediate factors that connect political economy to punishment – including crime levels, general culture, media culture, political culture and political institutions (Cavadino and Dignan 2008). Nelken Comparative criminal justice 301 criminal process itself remains somewhat ambiguous. Even if what happens inside the criminal justice complex ultimately makes all the difference, is this part of the ‘why’ or only the ‘how’ of punitiveness? How can we decide whether the criminal process is the dependent variable in our explanation or (also) an independent one? Consideration of the Italian case gives us reason to see criminal procedure as an independent or at least semi-autonomous variable in its own right – and not merely as a conduit for wider economic and political factors or changes. But – and this constitutes a further challenge for Cavadino and Dignan’s argument – the degree of such autonomy is itself a sociocultural variable. There are significant differences between countries such as Italy and Anglo- American countries with regard to how far it is thought constitutionally appropriate for criminal justice to be responsive to political direction or to social expectations. This has obvious implications for the extent to which, at the level of everyday decision-making by judges and prosecutors, the criminal justice system seeks to defend its ‘relative’ autonomy from both political and public pressures. Drawing on her knowledge of German arrangements, Lacey (2008) suggests that it is collaboration between politicians, policy makers and courts that is likely to keep prison rates down. But the Italian experience suggests that it can also be the refusal of such collaboration that can lead to this result. The main resistance in Italy to the latest efforts by politicians to encourage the mass criminalization of illegal immigrants comes from a uniquely strong corps of self -governing and independent judges and prosecutors,13 whose priorities are often different from those of both the politicians and the public. It is only by looking at criminal procedure that we can make sense of the paradox of why, despite many reasons that could lead us to expect the opposite, Italy can occupy an average and sometimes low rung in prison rates amongst major European countries. This is a country with an enormous number of criminal laws, many of which are regularly – even routinely – breached at all levels of society. Penal rules and judicial interventions are often relied on as a substitute for political and policy-led decision-making, given that other forms of civil or administrative regulation work (even more) poorly. In four regions of the country, powerful organized crime groups control or subject to their ‘taxes’ large parts of the economy and often con- dition what goes on in regional and local politics. Newspapers are full of 13 Even after the reform of criminal procedure was supposed to have moved Italy towards the accusatorial model, prosecutors and judges form part of the same category, with similar constitutional guarantees of independence and immovability, and are entitled to shift (subject to conditions) from one task to another. There are increasing pressures to introduce the so- called ‘separation of careers’, but this is politically highly controversial because many see it as the route to reducing prosecutors’ independence from political influence. 302 European Journal of Criminology 6(4) crime news, and criminal prosecution can be a potent weapon for assigning stigma. In the so-called Tangentopoli anti-corruption investigations of the 1990s, all the established parties of government were swept from power through the enforcement of laws concerning election finance and corruption of public works contracts, even if few of these individuals stayed in prison for long. Over the recent years in which prison rates have fallen, illegal immi gration has continued to increase, as has the tendency for the police to concentrate their attention on the crimes of immigrants as easy targets. What is more, prosecution in Italy is constitutionally obligatory; so there is no easy way out by using formally mandated types of diversion. So how is it possible that prison rates have sunk so low? In Italy’s case – though I would claim that some of the same mechan- isms are also often significant elsewhere – the answer is that this has little to do with levels of welfare or a state project aimed at the inclusion of marginal individuals, but has everything to do with the operations of its system of justice. Prison rates are low because of processes of attrition; although many cases start out, few arrive at a conclusion. All systems of criminal justice are to some degree intended to be selective (as seen in the now famous distinc- tion in Anglo-American literature between the requirements of ‘due process’ and the objectives of ‘crime control’). But systems differ between themselves (and over time) in the way they construct and operate such selectivity. In Italy, the typical procedural guarantees of the accusatorial system (centring on the forensic contest of the trial) that were introduced in the 1989 reform of criminal procedure were simply added to the ones that belong to the inqui sitorial tradition. This means that even quite minor cases go through a series of procedural hoops and are reviewed by a large number of judges, and there are two stages of appeal (the first stage being a retrial on the facts). There are complex rules about informing the accused and his/her lawyers of trial hearings at each stage of the proceedings and extensive periods are allowed for them to prepare their defence each time. It is not infrequent for such notifications to go astray, especially where there is more than one accused and lawyer involved. All this has obvious repercussions in terms of the time cases take to reach final disposal in Italy. Crucially, the so-called ‘prescription’, or statute of limitations, period after which criminal proceedings become null and void continues to run until the Cassation court has given its final verdict. And this can sometimes take over 10 years.14 Partly under the shock of the Tangentopoli investigations, in which politicians were the main targets, laws 14 This period after which ‘prescription’ sets in varies with the severity of the offence. Prime Minister Berlusconi is among those who have benefited from this procedural nullification of criminal charges. Nelken Comparative criminal justice 303 were passed that allowed those sentenced to less than three years in prison to apply to be put instead under what is often little more than nominal social work tutelage outside prison. Likewise, resources are stretched when it comes to supervising those let out on parole. This formed the larger back- ground against which a large-scale indulto – or collective pardon – was passed by the centre–left government in 2006 (after a long period in which the events of Tangentopoli had made the use of ‘amnesties’ politically unacceptable). Many of the procedural benefits of the Italian criminal justice system are not available to illegal immigrants ‘caught in the act’ of committing crimes, and it is these offenders (and low-level drug dealers) who now tend to fill the prisons. ‘Security’ has also become an ever more important polit ical issue, as shown with the return of a centre–right government in 2008 whose campaign played on linked concerns over immigration and crime.15 Although the Northern League and the ex-fascist National Alliance parties, junior members/allies of Berlusconi’s Liberty Party, had strongly emphasized crime issues even before, it is only recently that the issue of ‘street crime’ has become such an important part of both national and local politics.16 Overlooking the considerable cross-party support at the time it was passed,17 the new government was also able to exploit the un- po pularity of the latest indulto. This measure is likely to have increased crime levels, not least because those let out of prison were not provided with any incentive to reform themselves. But it is still not clear how far the new government will really tighten up on the kind of medium-level crimes typically committed by Italian offenders. Whether this happens again seems less dependent on shifts towards neo-liberalism than on the extent to which politicians can be satisfied that they will not be in the firing line of any expedited proceedings.18 But is Italy just a special case? (As Mrs Thatcher liked to say, when characterizing various countries in the European Union – ‘and then there’s Italy’.) Its politics may be somewhat unusual, but I would argue that 15 Until very recently the Italian expression that encompassed conventional crimes including burglary, rape and robbery was ‘micro-criminality’, used as a broad contrast to corruption, terrorism and organized crime, which threaten the state itself. 16 Directly elected local mayors, as much on the left as on the right, have been vocal about the measures they are taking to maintain local order using local municipal police agents, even if they do not officially have responsibility for the enforcement of criminal justice. 17 The indulto was widely seen as having been motivated by politicians of the right and the left (then in power) looking after their friends. But it was justified at the time in terms of prison overcrowding and carried the express approval of Pope Jean Paul II. 18 One of the first acts of the Berlusconi government elected in 2008 was to pass a law that sought to block for a year all proceedings in which the possible prison sentence was less than 10 years. This ‘happened’ to have the effect of interrupting one court case in which the Premier was himself involved. 304 European Journal of Criminology 6(4) criminal procedure and case-attrition are also a large part of the explanation of how other countries with low prison rates kept them low in the past – or still do so. Germany, for example, diverts around half of its prosecutions, and France in the 1980s and 1990s repeatedly resorted to amnesties as a response to prison overcrowding. The Netherlands and Switzerland used to send offenders home to wait until a place was ready for them in prison. At a minimum therefore we will have to add differences in criminal procedure to the range of explanatory factors canvassed by Cavadino and Dignan.19 But the more we emphasize the role of this factor as an explanation in its own right, the more it becomes difficult to draw a line between, on the one hand, the broader political and economic factors that they treat as their independent variables and, on the other, the dependent variable – prison rates – that their independent variables are intended to explain. The cultural meanings of punitiveness and tolerance A second set of issues concerns the cross-cultural meaning of Cavadino and Dignan’s dependent variable. The observer may choose to define ‘punitive- ness’ and ‘tolerance’ by fiat in terms of prison rates. But in some societies these responses may not even be thought to lie on the same continuum (Nelken 2006). There are many other questions to be clarified. Is tolerance to be seen as the outcome of deliberate choice – for example, the willingness to organize welfare interventions – or does it extend to deliberate (or even negligent) non-enforcement of available sanctions? Who is being said to be punitive or tolerant – politicians, legal professionals or the public? With respect to what sort of behaviour are these terms being applied? Are we talking of neutral ‘facts’ or of value judgements (and whose judgements count)? In sum, it is moot how far we can compare punitiveness and tolerance in different cultures without specifying what (various) actors in each of the societies concerned mean by these terms. Those who compare prison rates seek to avoid this problem by deducing intentions from outcomes. But if we ignore intentions it becomes difficult to be sure that we are comparing like with like. For example, is the effort to ‘change’ individuals, an aim that formed a central part of the ideology of the welfare-rehabilitative ap proach to offenders, a more or a less punitive intervention than the use of prison? Or is it really irrelevant that what I call tolerance you may call permissive- ness, indulgence, favouritism, neglect, indifference, impunity, denial or collusion? 19 Lacey (2008) seems to opt for this solution. Nelken Comparative criminal justice 305 It is in pursuing this sort of interpretative enquiry that comparative research risks the opposite problem, that of relativism. We are told for example that in the Netherlands the term gedogen is not readily translatable into English or any other language. ‘The term is Dutch. The concept is Dutch, and its application only works in Holland.’20 Gedogen does not correspond, for example, to the English term ‘tolerance’ because that can also be passive, whereas the Dutch concept refers to an open-eyed tolerance – a matter of government policy. Comparison with Italy reveals even more significant differences. In the Netherlands, gedogen lies behind official willingness to accommodate exceptions to the law. But in Italy the state can never explicitly approve such accommodation because of the fear that the law will then be bent to the interests of those who wish to achieve immu nity for their own misdeeds while targeting their opponents.21 Italian commentators speak less about being ‘tolerant’ than of the need to subject the criminal process to strict procedural requirements or garanzie.22 But, in practice, ‘tolerance’ as non-enforcement comes about de facto because the legislative body tends to multiply offences at the same time as doing nothing about the considerable difficulties that exist when it comes to enforcing them. Sometimes government impotence may also merge into collusion with elite crime – what has been described as ‘ruling through leniency’ (Melossi 1994). More generally, de facto toleration may be a way of currying popular favour through laxity in enforcing rules and a readiness to accept amends after the event. But attention to these contrasts in the social meanings of tolerance does not have to lead us to a relativist approach. Such a theoretical posi- tion would rule out the possibility of even grasping the existence of these differences. And it would miss the point that penal approaches are often highly contested within the societies concerned, and that perceptions of their acceptability change over time – in part because of exposure to prac- tices in other societies. Despite often ‘ruling through leniency’, Italy has also seen major investigations into political corruption and considerable suc cesses in the fight against the Mafia. On the other hand, despite a tend- ency to distrust the state and to side with those who suffer its vexations, there is now increasing ambivalence (mobilized by much of the media) 20 Taken from the website of the philosophy department of Erasmus University in Rotterdam. Of course, this term also gets its sense as part of a larger semantic field including, amongst others, the key term beleid; see Blankenburg and Bruinsma (1995). 21 In the same way, the Italian term for ‘discretionary’ is used rarely in a positive sense but rather as the semantic equivalent of ‘arbitrariness’. 22 Ferrajoli (1989). A leading Dutch critical criminologist, René Van Swaaningen, argued strongly that garantismo represented a key idea for all critical criminologists to take up (Van Swaaningen 1997). 306 European Journal of Criminology 6(4) towards the continued ‘tolerance’ of everyday crime through attrition, or the ‘inexplicable’ way in which even alleged serious criminals can find them- selves still at large while awaiting trial or benefit in other ways from what seem like excessive procedural formalities. Such re-thinking is seen in the increasing currency of terms such as buonismo (pretentious generosity at others’ expense), perdonismo (being too ready to forgive everything) or garanzie pelose (so-called ‘hairy’ procedural guarantees, which are seen by some as measures pretending to protect the accused’s rights but really aiming to create a system whereby it will be possible, if needed, to get certain accused people ‘off the hook’ at all costs). There would also be more to be said about the changing relationship between tolerance of offending, on the one hand, and tolerance of sexual deviance, moral ambiguity and cultural difference, on the other. It has been argued that, in late modernity, tolerance for some kinds of deviance (for example sexual deviance) may have increased, but that there is now less willing ness to reform and reintegrate those who engage in offending (Young 1999). This process clearly varies from place to place (and disap- proval of offending may often be a covert way of refusing difference). In the Netherlands, the differences between the two kinds of tolerance, and the way they have evolved recently, is well evidenced by the late Pim Fortuyn’s flamboyant display of an alternative sexual lifestyle combined with his in- sistence on the threat represented by Muslim immigration. Such changes in what Cavadino and Dignan describe as ‘attitudes towards inclusion’ have indeed affected the possibility of keeping prison rates down. Gedogen no longer has the widespread support it had (Buruma 2007). But once again, even if such changes in the cultural climate are undoubtedly themselves also influenced by developments in economic and political conditions, they are not simply reducible to them. Conclusion Just as it would be ethnocentric for Americans to assume that European criminal justice does or must work like that in the USA, for them, or English-speaking writers in general, to assume that European societies have fewer people in prison because they possess more regulated types of polit- ical economy may also be misleading (Nelken 2003). Ethnocentrism can be a problem not only where we think our practices are the best, but also where we assume too quickly that the others from whom we wish to learn are acting on the basis of what we think would be best practice (Cain 2000). Adopting an approach that attempts explicitly to get beyond ethnocentrism and relativism shows that simply calling for more of the solidarity and Nelken Comparative criminal justice 307 inclusiveness that is assumed to characterize other societies with lower prison rates is the kind of short-cut that can easily miss the point. Learning from what others do is not so straightforward. On closer acquaintance we may well find that we like the outcome achieved by other systems of criminal justice, but not the means they use to get there – or vice versa. But this message is not as negative as it might seem. Not only are there many things that can be learned from others, there are some matters that can only be learned from others. Reforms that emerge from within the same society often tend to reproduce the problems they are being asked to solve – precisely because they come from the same culture. Thus, in England and Wales – or the Netherlands – the answer to failures in the system is normally thought to be even more concern about efficiency. In Italy it is usually a re- thinking of ‘values’ or principles that is invoked as the way forward. Often the best practice for us to learn from may therefore not always be best practice as such, but that which stretches our imagination about what is possible. Moving a little nearer to what we would otherwise never normally think of doing may be just what we need. And even learning what not to do can be useful, especially where this helps us to understand better why we make the sometimes hard choices we do. In all this, interpreting what others are actually trying to do is essential even if – or especially if – the social actors we are studying do not have, nor could have, all the answers to our – or even to their – problems. If we are to intervene in a helpful way in public debates and policy-making, we must be able to engage with what actors think they are doing, and why it makes sense to them (insofar as it does so). I offer two examples to close with. I am currently engaged in comparative research into the handling of juvenile delinquency in England and Wales. This jurisdiction currently has one of the highest rates in Europe for the incarceration of juveniles and cer- tainly much higher than that of Italy. If you ask the legal actors and others involved in the system why this is so, you will not usually hear them saying anything about trying to be punitive or intolerant. Rather, they claim to be doing their best to help children before they get into further trouble.23 The number of youngsters ending up in prison is increasing as a result of government insistence on a quick through-put of cases. This is because per- sistent offenders run through the gamut of non-penal alternatives more quickly. But, again, this policy was ostensibly put in place in the interests of the offenders themselves. Different working assumptions lie behind the levels of tolerance or leniency in dealing with young people in different 23 Even if, for some of those involved, it feels like a Faustian pact by which they have to agree to the risk of increasing criminalization in return for continuing access to welfare resources for deprived youths. 308 European Journal of Criminology 6(4) places. In England and Wales it is thought that children will not easily grow out of delinquency without official intervention. In Italy, on the other hand, there is a legally enshrined presupposition that in the majority of cases they will do so. On the other hand, Italy has one of the highest rates in Europe for the pro portion of illegal immigrants in prison, usually sent there for low-level property offences and drug-dealing. Why is it that these offenders do not benefit from the many procedural possibilities for delaying trial or avoiding prison? In part this is because they lack the legal competence and assist- ance to do so. But, in addition, official actors do not always interpret the procedural possibilities for leniency that do exist in their favour. Italian law says that first offenders sentenced to terms of less than two years should normally have their prison sentences suspended, on the legal assumption that they have not offended before and are unlikely to do so again. Should this provision also be applied to illegal immigrants? According to some magistrates, immigrants are entitled to the same protections as anyone else; it is not their job to take into account sociological considerations. What is at stake is a matter of basic fairness and formal equality of treatment. Other judges think that such offenders may well have already had a criminal record abroad before immigrating; they also argue that it is unrealistic to assume that a person without home or work will not be tempted to re-offend and that if measures are not taken to stop offenders now they will do their best to disappear. Although both views are held within the magistracy, the first, more lenient, approach is being steadily undermined by political and media pressure. In both of these examples, labelling one view ‘punitive’ and the other ‘tolerant’ is not particularly helpful. The actors in each criminal justice system are up against the well-known difficulties of trying to find penal solutions to what are in fact larger social problems. Insofar as they have room for manoeuvre, their choices will reflect their conceptions of what courts can and should do in these situations (choices that may not be con- sistent across the range of different kinds of social problems). This said, when it comes to the evaluation of criminal justice practices, whether actors think they are being tolerant or punitive is not the end of the matter. We can, do and should make our own defeasible claims about other people’s ideas and actions even where they would reject our interpretations. Not only self-confessed racists are racists! So it can make sense in some contexts to describe people as tolerant even if they do not intend to be (and vice- versa). It can be helpful to show actors that things could be done differently, and that they are already being done differently, elsewhere. Increasing their awareness of this can help unpack the self-fulfilling assumptions of the Nelken Comparative criminal justice 309 criminal justice systems they belong to. But we should not overestimate their ignorance of matters elsewhere,24 and we need to exercise great caution in substituting our accounts of what they are trying to do for their own. In Italy, despite (or because of?) its low prison rate, ‘tolerance’ – or the local equivalents – has recently come to be seen by many as less and less something to be proud of but rather as evidence of the neglect of existing and potential victims. As one influential editorialist in a mainstream newspaper recently commented, in criticizing the latest indulto, ‘what right does the state have to pardon identified offenders at the expense of the unidentified victims who will suffer from the crimes that they will commit once released’. He ends by insisting that ‘public opinion is not bloodthirsty. It does not dream of taking revenge on Cain. Simply, it has eyes also for Abel and sees the solitude in which he has been left’ (Ricolfi 2007, my translation). To compete with this sort of rhetoric – aimed cleverly at reducing the religious and cultural aversion in Italy to what might otherwise might be seen as putting law at the service of ‘vendetta’ – one possible strategy could be to insist that there can be more constructive ways of punishing than prison. But alternatives to prison do have their own costs and difficulties, and they are hard to apply in the case of offenders who have arrived in a country as irregular – and supposedly unwanted – immigrants. What seems undeniable is that, in the current penal climate, if we are to propose the adoption of different practices we will normally need to do more than merely show that they are – in their outcome – less punitive. Timing is everything. Acknowledgements This article is a much revised version of a paper ‘Comparative Criminal Justice: Beyond Ethnocentrism and Relativism’, given as a Keynote speech to the First Conference on Assessing Deviance, Crime and Prevention in Europe’, CRIMPREV network of excellence, Brussels, Belgium, 8 February 2007; as a plenary presentation at the European Society of Criminology conference at Bologna, Italy, 26 September 2007; and as the Visiting Wiarda Chair inaugural lecture at the University of Utrecht, the Netherlands, 13 June 2008. I should like to thank the journal’s anonymous referees for their valuable comments. 24 It is not enough just to point out to English magistrates that things are done differently in Italy. Some then reply that this is possible there only because of the strength of Italian family life, whereas in England they are unable to count on such family support. 310 European Journal of Criminology 6(4) References Aebi, M. and Stadnic, N. (2007). Council of Europe annual penal statistics. SPACE 1: 2005 Survey on prison populations. Strasbourg, 30 January 2007;. URL (accessed 5 March 2009): http://www.coe.int/t/e/legal_ affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/ C o u n c i l % 2 0 o f % 2 0 E u r o p e _ S P A C E % 2 0 I % 2 0 - % 2 0 2 0 0 5 % 2 0 - %20final%20version.pdf. Beck, U. (1992). Risk society. London: SAGE. Beckett, K. (1997). Making crime pay. Oxford: Oxford University Press. Blankenburg, E. and Bruinsma, F. (1995). Dutch legal culture, 2nd edn. Deventer: Elsevier. Boutellier, H. (2004). The safety utopia. Berlin: Springer. Buruma, Y. (2007). Dutch tolerance. On drugs, prostitution and euthanasia. In M. Tonry and C. Bijleveld (eds) Crime and justice in the Netherlands, 73–113. Chicago,IL: University of Chicago Press. Cain, M. (2000). Orientalism, occidentalism and the sociology of crime. British Journal of Criminology 40, 239–60. Cavadino, M. and Dignan, J. (2006a). Penal systems: A comparative approach. London: SAGE. Cavadino, M. and Dignan, J. (2006b). Penal policy and political economy. Crimin- ology and Criminal Justice 6, 435–56. Cavadino. M. and Dignan, J. (2008). Penal comparisons: Puzzling relations. Paper presented at Worldwide Universities Network Colloquium on International and Comparative Criminal Justice and Urban Governance: Policy Convergence, Divergence and New Justice Paradigms. University of Leeds, 26–28 June 2008. Christie, N. (1993). Crime control as industry. London: Routledge. Cohen, A. (1970). Multiple factor approaches. In Marvin Wolfgang et al. (eds) The sociology of crime and delinquency, 123–6. New York: Wiley. De Haan, W. (1990). The politics of redress. London: Unwin. Ferrajoli, L. (1989). Diritto e ragione. Rome: Laterza. Downes, D. (1988). Contrasts in tolerance. Oxford: Oxford University Press. Garland, D. (2001). The culture of control. Oxford: Oxford University Press. Lacey, N. (2008). The prisoners’ dilemma: Political economy and punishment in contemporary democracies. Cambridge: Cambridge University Press. Lappi-Seppälä, T. (2001). Sentencing and punishment in Finland. The decline of the re pressive ideal. In M. H. Tonry and R. S. Frase (eds) Sentencing and sanctions in western countries, 92–150. Oxford: Oxford University Press. Melossi, D. (1994). The economy of illegalities. Normal crimes, elites and social control in comparative analysis. In D. Nelken (ed.) The futures of criminology, 202–19. London: SAGE. Nelken, D. (1994). The future of comparative criminology. In D. Nelken (ed.) The futures of criminology, 220–44. London: SAGE. Nelken, D. (2000) Telling difference: Of crime and criminal justice in Italy. In D. Nelken, Contrasting criminal justice, 233–64. Aldershot: Dartmouth. Nelken, D. (2003). Beyond compare? Criticising the American way of law. Law and Social Inquiry 28, 181–213. Nelken Comparative criminal justice 311 Nelken, D. (2006). Italian juvenile justice: Tolerance, leniency or indulgence? Youth Justice 6, 107–28. Pakes, F. (2004). Comparative criminal justice. Cullompton: Willan. Proband, S. C. (2008). European populations stable. Newsletter of the European Society of Criminology 7, May; URL (accessed 5 March 2009): http://www. esc-eurocrim.org/newsletter/May08ESCnewsletter.pdf. Reiner, R. (2007). Political economy, crime and criminal justice. In M. Maguire, R. Morgan and R. Reiner (eds) Oxford handbook of criminology, 4th edn, 341–80. Oxford: Oxford University Press. Ricolfi, L. (2007). La sicurezza scotta. La Stampa, 13 October. Simon, J. (2007). Governing through crime. Oxford: Oxford University Press. Solivetti, L. M. (2004). Immigrazione, integrazione e crimine in Europa. Bologna: Il Mulino. Solivetti, L. M. (2007). Societies poor in civic virtues: A cross-national analysis model on immigrants’ integration and host country characteristics. In Società Italiana di Statistica (ed.) Proceedings of the 2007 Intermediate Conference Risk and Prediction, 107–18. Padova: Cleup. Van Dijk, J. (2007). The world of crime. London: SAGE. Van Swaaningen, R. (1997). Critical criminologies: Visions from Europe. London: SAGE. Walmsley, R. (1999). World prison populations. Home Office Research Development and Statistics Directorate, Research Findings No. 88. London: Home Office. Walmsley, R. (2003). World prison population list. Home Office Research Findings 188. Young, J. (1999). The exclusive society. London: SAGE. Zedner, L. (2002). Dangers of dystopias in penal theory. Oxford Journal of Legal Studies 22, 341. David Nelken David Nelken is Distinguished Professor of Sociology at the University of Macerata, Italy, and also Distinguished Research Professor of Law at the University of Cardiff, Wales, and Honorary Professor of Law at the London School of Economics, UK. In 2007–8 he was Wiarda Chair at the Willem Pompe Institute of Criminal Law at the University of Utrecht, and in 2008–9 he will be the S.T. Lee Visiting Professor at London University’s Institute of Advanced Studies. sen4144@iperbole.bologna.it << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.4 /CompressObjects /Tags /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.0000 /ColorConversionStrategy /CMYK /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams false /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments true /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 300 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 300 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 1200 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile () /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /Description << /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e9ad88d2891cf76845370524d53705237300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc9ad854c18cea76845370524d5370523786557406300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /DAN <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> /DEU <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> /ESP <FEFF005500740069006c0069006300650020006500730074006100200063006f006e0066006900670075007200610063006900f3006e0020007000610072006100200063007200650061007200200064006f00630075006d0065006e0074006f00730020005000440046002000640065002000410064006f0062006500200061006400650063007500610064006f00730020007000610072006100200069006d0070007200650073006900f3006e0020007000720065002d0065006400690074006f007200690061006c00200064006500200061006c00740061002000630061006c0069006400610064002e002000530065002000700075006500640065006e00200061006200720069007200200064006f00630075006d0065006e0074006f00730020005000440046002000630072006500610064006f007300200063006f006e0020004100630072006f006200610074002c002000410064006f00620065002000520065006100640065007200200035002e003000200079002000760065007200730069006f006e0065007300200070006f00730074006500720069006f007200650073002e> /FRA <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> /ITA <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> /JPN <FEFF9ad854c18cea306a30d730ea30d730ec30b951fa529b7528002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b4f7f75283057307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a306b306f30d530a930f330c8306e57cb30818fbc307f304c5fc59808306730593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020ace0d488c9c80020c2dcd5d80020c778c1c4c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor prepress-afdrukken van hoge kwaliteit. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /PTB <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> /SUO <FEFF004b00e40079007400e40020006e00e40069007400e4002000610073006500740075006b007300690061002c0020006b0075006e0020006c0075006f00740020006c00e400680069006e006e00e4002000760061006100740069007600610061006e0020007000610069006e006100740075006b00730065006e002000760061006c006d0069007300740065006c00750074007900f6006800f6006e00200073006f00700069007600690061002000410064006f0062006500200050004400460020002d0064006f006b0075006d0065006e007400740065006a0061002e0020004c0075006f0064007500740020005000440046002d0064006f006b0075006d0065006e00740069007400200076006f0069006400610061006e0020006100760061007400610020004100630072006f0062006100740069006c006c00610020006a0061002000410064006f00620065002000520065006100640065007200200035002e0030003a006c006c00610020006a006100200075007500640065006d006d0069006c006c0061002e> /SVE <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> /ENU (Use these settings to create Adobe PDF documents best suited for high-quality prepress printing. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToCMYK /DestinationProfileName () /DestinationProfileSelector /DocumentCMYK /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles false /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_jrfr25sj6vfa5ksvhgnodzhuhu	----	[PDF] Pathway to Social Justice: Research on Human Rights and Gender‐Based Violence in a Rwandan Refugee Camp | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1097/ANS.0b013e3181a3b0c4 Corpus ID: 24215078Pathway to Social Justice: Research on Human Rights and Gender‐Based Violence in a Rwandan Refugee Camp @article{Pavlish2009PathwayTS, title={Pathway to Social Justice: Research on Human Rights and Gender‐Based Violence in a Rwandan Refugee Camp}, author={C. Pavlish and A. Ho}, journal={Advances in Nursing Science}, year={2009}, volume={32}, pages={144–157} } C. Pavlish, A. Ho Published 2009 Sociology, Medicine Advances in Nursing Science Gender-based violence persists in postconflict settings. Implementing an ethnographic study with Congolese refugees in Rwanda, we investigated community perspectives on justice and human rights. As core concepts, participants described the right to equal value as human beings and the corresponding responsibility to respect human rights as the basis for justice. Three factors that impede human rights include cultural ideology, social distance, and lack of a rights-enabling environment. Men… Expand View on Wolters Kluwer providencehealthcare.org Save to Library Create Alert Cite Launch Research Feed Share This Paper 14 CitationsBackground Citations 5 View All Topics from this paper Sex Characteristics 14 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Health and human rights advocacy: Perspectives from a Rwandan refugee camp C. Pavlish, A. Ho, Ann-Marie Rounkle Political Science, Medicine Nursing ethics 2012 16 View 2 excerpts, cites background Save Alert Research Feed Promoting positive male gender socialization among migrant male youth living in Kakuma Refugee Camp, Kenya: Applying appreciative inquiry to gender-based violence prevention efforts M. Fry Political Science 2016 2 PDF Save Alert Research Feed Barriers of Reporting Sexual Violence in Syrian Refugee Camps E. MacTavish Medicine 2016 3 View 2 excerpts, cites background Save Alert Research Feed Understanding the Relationship Between Male Gender Socialization and Gender-Based Violence Among Refugees in Sub-Saharan Africa M. Fry, A. Skinner, S. Wheeler Psychology, Medicine Trauma, violence & abuse 2017 1 View 2 excerpts, cites background Save Alert Research Feed Measuring Distress Levels of Refugee Women to Enhance Community-Based Psycho-social Interventions Irene C Felsman, J. Humphreys, Rebecca A Kronk Psychology, Medicine Issues in mental health nursing 2019 2 View 1 excerpt, cites background Save Alert Research Feed Religion at the Margins: Resistance to Secular Humanitarianism at the Rohingya Refugee Camps in Bangladesh Nusrat Jahan Mim Political Science 2020 1 Save Alert Research Feed Accountability strategies for sexual and reproductive health and reproductive rights in humanitarian settings: a scoping review M. Schaaf, Victoria Boydell, M. Sheff, C. Kay, Fatemeh Torabi, Rajat Khosla Political Science, Medicine Conflict and Health 2020 2 PDF View 1 excerpt, cites background Save Alert Research Feed VIOLENCE AGAINST WOMEN: INTEGRATIVE REVIEW VIOLÊNCIA CONTRA A MULHER: REVISÃO INTEGRATIVA LA VIOLENCIA CONTRA LA MUJER: REVISIÓN INTEGRAL Laís de Andrade Martins Cordeiro, Samara Macedo Cordeiro, Ciderleia Castro de Lima, Telma, L. B. Franco, Clícia Valim Côrtes Gradim 2013 2 Save Alert Research Feed 'By seeing with our own eyes, it can remain in our mind': qualitative evaluation findings suggest the ability of participatory video to reduce gender-based violence in conflict-affected settings. Tilly Gurman, Regan M Trappler, A. Acosta, Pamella A McCray, C. M. Cooper, L. Goodsmith Medicine Health education research 2014 26 PDF Save Alert Research Feed Conflict, Displacement, and IPV Etobssie Wako, L. Elliott, Stacy L De Jesus, M. Zotti, M. Swahn, J. Beltrami Psychology, Medicine Violence against women 2015 12 Save Alert Research Feed ... 1 2 ... References SHOWING 1-10 OF 72 REFERENCES SORT BYRelevance Most Influenced Papers Recency Refugee Women's Health: Collaborative Inquiry with Refugee Women in Rwanda C. Pavlish Sociology, Medicine Health care for women international 2005 26 Save Alert Research Feed Gender-Based Violence in Conflict-Affected Settings: Overview of a Multi-Country Research Project J. Ward, Jessica Brewer Sociology 2004 10 Save Alert Research Feed Suffering in silence: a study of sexual and gender based violence (SGBV) in Pabbo camp Gulu district northern Uganda. Akumu Co, I. Amony, G. Otim Political Science 2005 32 PDF Save Alert Research Feed Narrative inquiry into life experiences of refugee women and men. C. Pavlish Medicine International nursing review 2007 45 Save Alert Research Feed Domestic violence and mental health: correlates and conundrums within and across cultures. R. Fischbach, B. Herbert Sociology, Medicine Social science & medicine 1997 291 PDF Save Alert Research Feed Understanding the causes of gender-based violence. Roselidah Ondeko, S. Purdin Sociology 2004 18 Save Alert Research Feed Reinvesting in social justice: a capital idea for public health nursing? D. Drevdahl, S. Kneipp, M. Canales, K. Dorcy Political Science, Medicine ANS. Advances in nursing science 2001 65 Save Alert Research Feed Toward a Critical Theoretical Interpretation of Social Justice Discourses in Nursing S. Kirkham, A. Browne Sociology, Medicine ANS. Advances in nursing science 2006 121 Save Alert Research Feed Intimate partner violence: causes and prevention R. Jewkes Psychology, Medicine The Lancet 2002 1,569 PDF Save Alert Research Feed Gender-based violence, relationship power, and risk of HIV infection in women attending antenatal clinics in South Africa K. Dunkle, R. Jewkes, H. Brown, G. Gray, S. Harlow Medicine The Lancet 2004 1,304 Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Topics 14 Citations 72 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_js7skntvnvc2lfzivm7bev3qdq	----	Forensic science: defending justice | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1080/20961790.2016.1243083 Corpus ID: 53730142Forensic science: defending justice @article{Shen2016ForensicSD, title={Forensic science: defending justice}, author={M. Shen and D. N. Vieira}, journal={Forensic sciences research}, year={2016}, volume={1}, pages={1 - 2} } M. Shen, D. N. Vieira Published 2016 Political Science, Medicine Forensic sciences research Forensic science is the application of scientific knowledge and methodology for the resolution of legal questions and problems for individuals and society. It involves the observation, documentation, collection, analysis, assessment and scientific interpretation of evidence during the course of an investigation required for the different fields of law, including criminal, civil, work, family and administrative. Forensic scientists also testify as expert witnesses and can work for either the… Expand View on Taylor & Francis tandfonline.com Save to Library Create Alert Cite Launch Research Feed Share This Paper Topics from this paper Forensic Sciences Journal Forensic Medicine forensic psychiatry (field) Cessation of life Forensic Toxicology Scientific Publication Entomology Paper forensic pathology discipline Anthropology Psychiatry Specialty Forensic Genetics Drowning Pathology, Clinical Tai Ji Flexed Sidebent Rotated Cadaver Numerous Death by strangulation Lobular Neoplasia Index Periodicals Academia (organization) Promotion (action) Related Papers Abstract Topics Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_jvt2pmzsfvb73p2qgmcxdt7kv4	----	Grant Writing Workshop for Environmental Justice ~~~~~~~~~~~~~~~~~~~~z 7> '1F Xz77inR R i l | 01( X W;~~~~~~~~~~~ Gate met Ne enIromna jusic reeac gatee nld lf orgt ineQil CaEo Pora Kas Coo, ndMihal eliau tants, health care providers, and environ- mental health researchers. The program seeks to ensure that the communities involved have a demonstrable role in iden- tifying and defining problems and risks related to environmental health and in shaping future research approaches to such problems. The purposes of this orientation meet- ing were to share information among grantees and NIEHS staff, to allow grantees to learn of common or similar approaches in their projects, and to begin developing a communication network. Following a welcome and introduction by Anne Sassaman, director of extramural research and training, and Allen Dearry, program administrator, the principal inves- tigator of each grant described his or her project, including its history, objectives, and methods. Dianne Quigley at Clark University, in Worcester, Massachusetts, in collaboration with Native Americans for a Clean Environment and Citizen Alert Native American Program, is working to increase the awareness of Native American commu- nities exposed to radiation contamination in their environment. They are designing and implementing a plan for risk manage- ment and prevention at the Western Shoshone Nation near the Department of Energy's Nevada Test Site and at the Cherokee Nation at Sequoyah Fuels, Oklahoma, a uranium processing facility that was in operation for 23 years. Education modules of two types will be implemented: community modules, creat- ed exclusively by Native American collabo- rators; and health education modules, cre- ated by scientists and health care provider trainers. Relevant materials and strategies will be shared with other Native American communities. Katsi Cook at The State University of New York, Albany, in collaboration with St. Regis Mohawk Health Services, is designing community-based strategies for environmental health education, outreach, and training in the Akwesasne Mohawk community, which is adjacent to a Sup- erfund site in the Great Lakes Basin-St. Lawrence River watershed. Environmental hazards have resulted from the rapid transi- tion from an agricultural to an industrial environment. Cook is a nurse midwife and a member of the Mohawk community, and the project is implemented, evaluated, and disseminated explicitly through com- munity members. Michael Belliveau and Carlos Porras from Citizens for a Better Environment, in collaboration with the Labor Occupational Safety and Health Program and the Center for Occupational and Environmental Health at UCLA and the Community Health Foundation, aim to educate com- munity members and health care providers, promote adoption of pollution prevention measures, and establish a com- munity-based strategy for reducing com- munity and worker exposure to environ- mental pollutants in southeast Los Angeles, a highly industrialized area home to a low- income population, which is approximate- ly 90% Hispanic and Latino. A major objective of this project is to analyze data to confirm the list of environmental pollu- tants already known and to determine whether gaps exist in the data. Environ- mental health issues will be determined and addressed. Education of community members and medical care providers will be emphasized. Sources of health hazards will be identified, and strategies will be developed to attempt exposure reduction. Grant Writing Workshop for Environmental Justice An instructional workshop for writing a grant application in response to request for applications (RFA) ES 95-002, "Environmental Justice: Partnerships for Communication," was held at NIEHS on December 9. This RFA is a reannounce- ment of the initiative that resulted in three awards earlier this year (see previous story). At this workshop, NIEHS staff discussed the fundamentals of how to write an NIH grant application. Open to the public, the workshop attracted 30 participants, who spent the day learning about this RFA and the NIH grant process. Allen Dearry, program administrator, explained the mission of NIEHS, particu- larly as it relates to environmental justice, and then addressed this RFA specifically. The objectives, eligibility criteria, and review process were described. The three current grantees, Dianne Quigley, Katsi Cook, and Michael Belliveau, then present- ed their projects and discussed how they put together successful applications for the first round of competition. They discussed personnel interactions among community members, health care providers, and researchers, and provided the audience with some helpful hints on how to bring people together for successful collaborations. Diane Becker, director of the Center for Health Promotion at Johns Hopkins University, and a member of the Special Review Committee that evaluated the applications submitted in the first competi- tion, explained her impressions of the review process. The review committee is composed of a 1:1:1 ratio of community representatives, health care providers, and environmental health scientists. After the presentations Dearry led the group through a lesson in filling out a PHS 398, the offi- cial NIH grant application form. Carolyn Winters, grants management specialist, reviewed budgetary considerations and needed assurances and certifications. General questions and answers and individ- ual discussions rounded out the session. 140 Environmental Health Perspectives 
work_jwzgazhfrzdz7i74khkpjvcqde	----	European criminal justice on the move ERA Forum (2015) 16:273–276 DOI 10.1007/s12027-015-0401-4 E D I T O R I A L European criminal justice on the move Cornelia Riehle1 Published online: 16 September 2015 © ERA 2015 A major change to the area of freedom, security and justice has been seen recently, especially since the end of 2014. From the perspective of EU Justice policy, the end of 2014 marked a turning point, with the conclusion of the European Council’s five-year Stockholm Programme and the publication of the ‘EU Justice Agenda for 2020’,1 together with the new ‘Strategic Guidelines for Legislative and Operational Planning for the coming years within the EU’s Area of Freedom, Security and Justice’,2 encouraging further action on issues such as the strengthening of the rights of accused and suspected persons in criminal proceedings; the protection of victims; enhancing mutual recognition of decisions in criminal matters; reinforcing the exchange of information between the authorities of the Member States; and advancing negotiations regarding the European Public Prosecutor’s Office (EPPO). From an institutional perspective, the end of 2014 heralded the start of the period in which the Lisbon Treaty began to take full effect. As described in the Article of Dr. Els De Busser in this volume of the ERA Forum, the transitional period for the Lisbon Treaty ended on 1 December 2014, making space for new voting rules, new compe- tences of the European Commission and the CJEU, and a new position for the UK in the area of police and judicial cooperation in criminal matters in the EU. National 1EU Justice Agenda for 2020—Strengthening Trust, Mobility and Growth within the Union, COM(2014) 144 final, Strasbourg, 11.3.2014. 2Strategic Guidelines for Legislative and Operational Planning for the coming years within the EU’s Area of Freedom, Security and Justice, OJ C 240/13, 24.7.2014. B C. Riehle, M.A., Deputy Head of Section European Criminal Law criehle@era.int 1 Academy of European Law (ERA), Metzer Allee 4, 54295 Trier, Germany http://crossmark.crossref.org/dialog/?doi=10.1007/s12027-015-0401-4&domain=pdf mailto:criehle@era.int 274 C. Riehle courts from all EU Member States may now look to the CJEU for the interpretation of EU law. Furthermore, the European Commission can now execute infringement procedures in the case of legal acts of police and judicial cooperation in criminal matters, which provides an exciting possibility, considering the many legal instru- ments that Member States failed to implement. Especially exciting in this regard will be the developments in the area of mutual recognition of judgements and probation decisions regarding the supervision of probation measures and alternative sanctions; alternatives to provisional detention; and judgements imposing custodial sentences or measures involving the deprivation of liberty. (Member States were supposed to take the necessary measures to comply with the three respective Framework Decisions3 by the end of 2011 but the implementation of such measures is still pending in many Member States). The European Investigation Order is a novelty in the field of mutual recognition instruments. After years of discussion and the failed establishment of the European Evidence Order (EIO), Directive 2014/41/EU4 could be adopted in April 2014, allowing a judicial authority in one Member State to request that specific crim- inal investigative measures be carried out by an authority in another Member State in order to obtain evidence. The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State. Antonio Roma Valdés’ article in this volume of the ERA Forum outlines the problems that the principle of mutual recognition in criminal matters—once titled the ‘cornerstone’ of judicial cooperation in criminal matters in the EU—has revealed over the years. Looking at the current state of European criminal justice, another big question is posed regarding the future role of the UK in the area of freedom, security and justice. As outlined in the article of David Dickson, on 31 May 2014 the UK exercised its opt out of all EU police and criminal justice measures, and on 1 December 2014 opted back into 35 measures. Furthermore, considerable changes are also being seen currently with regard to the relevant EU Agencies in the field of police and judicial cooperation in criminal matters, namely Europol, Eurojust, and OLAF. Regarding Europol, a possible reform of its legal basis currently being discussed suggests transforming the Europol Decision into a Regulation.5 Under the draft Reg- ulation, the obligations on Member States to share law enforcement information with Europol and to initiate a criminal investigation when requested by Europol would be 3Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, OJ L 294/20, 11.11.2009. Council Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgements and probation decisions with a view to the supervision of probation measures and alternative sanctions, OJ L 337/102, 16.12.2008. Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the princi- ple of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, OJ L 327/27, 5.12.2008. 4Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130/1, 1.5.2014. 5Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA, COM(2013) 173 final, Brussels, 27.3.2013. European criminal justice on the move 275 strengthened. The draft Regulation also addresses issues of governance, the parlia- mentary scrutiny of Europol and data protection. The idea of merging the functions of Europol and the European Police College (CEPOL) into a single European Agency for Law Enforcement Cooperation and Training, as envisaged by the Commission’s original proposal in 2013, has however already been abandoned due to the opposition of the Council and European Parliament. Hence, CEPOL remains an independent EU agency, with its seat however moved from Bramshill in the UK to Budapest in Hungary. A similar discussion began with regard to Eurojust in July 2013 when the Com- mission published a proposal for a draft Regulation,6 replacing the current Eurojust Decision. The draft Regulation aims to improve the operational functions and powers of Eurojust’s National Members by, for instance, allowing them to issue and exe- cute requests and to order investigative measures in urgent cases. Furthermore, it also addresses Eurojust’s structure and governance, its data protection regime, and its cooperation with EU partners, third States and international organisations and bod- ies. A ground-breaking new development, however, is currently taking place through the discussions on the establishment of a European Public Prosecutor’s Office (EPPO). The EPPO would have a major impact on Eurojust as well as on OLAF, the European Anti-Fraud Office. The Commission’s proposal for a Regulation7 on the establishment of the EPPO was published on 17 July 2013, together with the draft Eurojust Regulation. Under the current draft of March 2015,8 the EPPO would have a collegial structure, and the EPPO and national prosecution services would have concurrent competence to investigate offences against the financial interests of the Union. Corruption cases and the problems with asset recovery in Germany are also dealt with in Dr. Markus Rübenstahl’s article in this volume of the ERA Fo- rum. In addition to all these institutional changes, European criminal law also faces new challenges with modern crime such as cybercrime and the jurisdictional prob- lems which arise. In his article in this volume of the ERA Forum, Dr. Cristos Ve- lascoanalyses the European instruments that address the issue of cybercrime juris- diction. A different perspective on policing online child sexual abuse is given by criminal psychologist Jonathan Taylor M.Sc., explaining the common characteris- tics of paedophiles. Another crime which is being comprehensively discussed at the moment is the trafficking in human beings (THB). The trends and challenges facing policy-makers regarding labour exploitation and trafficking for labour exploitation are discussed by Mariyana Radeva Berket in this volume. Furthermore, Dr. Gerrit Huybreghts describes the challenges regarding the border policy of the EU and the evolution of the Schengen zone upon its 25th anniversary. 6Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust), COM(2013) 535 final, Brussels, 17.7.2013. 7Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office, COM(2013) 534 final, Brussels, 17.7.2013. 8Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office—Orientation debate/State of Play, 6318/1/15 REV 1, 2 March 2015. 276 C. Riehle Finally, the added value of establishing criminal offences for at least serious forms of market abuse is discussed by Sarah Wilson in this volume. Finally, after a long pe- riod of disregard, the EU has also drawn its attention to the need for procedural rights. In 2009, the Swedish Presidency published a Roadmap9 for strengthening procedu- ral rights of suspected or accused persons in criminal proceedings, envisaging six measures to be taken to improve the rights of these persons in criminal proceedings, namely regarding: the right to translation and interpretation; the right to informa- tion on rights and information about the charges; legal advice and legal aid; com- munication with relatives, employers and consular authorities; special safeguards for suspected or accused persons who are vulnerable; and a Green Paper on pre-trial de- tention. Until now, the development of procedural rights has progressed steadily, with three Directives having been adopted.10 Proposals to strengthen the presumption of innocence and the right to be present at trial in criminal proceedings;11 minimum standards for legal aid in criminal proceedings,12 and the provision of protection for children and other vulnerable groups13 have all been tabled and are currently in the legislative process. It will be exciting to see what the final Directives will look like and how they will be implemented and applied in practice. 9Resolution of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, OJ C 295/1, 4.12.2009. 10Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, OJ L 280/1, 26.10.2010; Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142/1, 1.6.2012; Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294/1, 6.11.2013. 11Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, COM(2013) 821 final, Brussels, 27.11.2013. 12Proposal for a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings, COM(2013) 824 final, Brussels, 27.11.2013. 13Proposal for a Directive on procedural safeguards for children suspected or accused in criminal proceed- ings, COM(2013) 822 final, Brussels, 27.11.2013. European criminal justice on the move 
work_jyjouu65qbeb5a6estiyvgku4i	----	doi:10.1016/j.obhdp.2005.09.001 Organizational Behavior and Human Decision Processes 100 (2006) 110–127 www.elsevier.com/locate/obhdp Justice and personality: Using integrative theories to derive moderators of justice eVects � Jason A. Colquitt a,¤, Brent A. Scott a, Timothy A. Judge a, John C. Shaw b a University of Florida, USA b Mississippi State University, USA Received 29 July 2004 Available online 10 November 2005 Abstract Although organizational justice has been shown to have behavioral consequences, there remains a surprising amount of variation in how individuals react to fair and unfair treatment. The present study drew on three integrative theories in the justice literature— fairness heuristic theory, uncertainty management theory, and fairness theory—to identify personality traits that could explain such variation. From these theories, we identiWed trust propensity, risk aversion, and morality (rooted in circumplex models of personal- ity) as potential moderators. A laboratory study provided some support for the prediction that the three traits moderate the eVects of procedural, interpersonal, and distributive justice on task performance and counterproductive behavior. The moderating eVects of the three traits explained more variance in the outcomes than moderators based in the justice literature (equity sensitivity, sensitivity to befallen injustice) or the Wve-factor model of personality. Taken together, the results suggest that the three integrative theories can inform the search for personality-based moderators of justice eVects. © 2005 Elsevier Inc. All rights reserved. Keywords: Organizational justice; Fairness; Trust; Personality Fair treatment impacts an organization’s members in a number of ways. It provides evidence that organiza- tional authorities are trustworthy, reducing fears of exploitation while enhancing the legitimacy of organiza- tional actions (Lind, 2001; Tyler & Lind, 1992; Van den Bos, 2001a). Fair treatment also makes future events more predictable and controllable, reducing some of the uncertainty experienced in day-to-day working life (Lind & Van den Bos, 2002; Thibaut & Walker, 1975). Finally, fair treatment signals an adherence to moral and ethical standards on the part of authorities, potentially bringing � An earlier draft of this manuscript was presented in T.A. Judge and J.A. Colquitt (Chairs), The how and why of fairness: Mediators/modera- tors of justice eVects. Symposium conducted at the annual meeting of the Society for Industrial and Organizational Psychology, Chicago, IL. * Corresponding author. Fax: +1 352 392 6020. E-mail address: colquitt@uX.edu (J.A. Colquitt). 0749-5978/$ - see front matter © 2005 Elsevier Inc. All rights reserved. doi:10.1016/j.obhdp.2005.09.001 more meaning to working life (Cropanzano, Byrne, Bob- ocel, & Rupp, 2001; Folger, 1998). The members of an organization can evaluate fairness along a number of dimensions. Distributive justice refers to the perceived fairness of decision outcomes and is judged by gauging whether rewards are proportional to costs (Homans, 1961), whether outcomes adhere to expectations (Blau, 1964), and whether outcome/input ratios match those of a comparison other (Adams, 1965). Procedural justice refers to the perceived fairness of deci- sion-making procedures and is judged by gauging whether procedures are accurate, consistent, unbiased, and correctable (Leventhal, 1980), and open to employee input (Thibaut & Walker, 1975). Interactional justice refers to the perceived fairness of the enactment or implementation of procedures (Bies & Moag, 1986) and has two subfacets. Interpersonal justice captures the sin- cerity and respectfulness of authority communication, mailto: colquitt@ufl.edu mailto: colquitt@ufl.edu mailto: colquitt@ufl.edu mailto: colquitt@ufl.edu J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 111 while informational justice concerns the use of honest and adequate explanations for decisions (Colquitt, 2001; Greenberg, 1993a). These justice dimensions have been associated with a number of behavioral reactions on the part of employees (for meta-analytic reviews, see Cohen-Charash & Spec- tor, 2001; Colquitt, Conlon, Wesson, Porter, & Ng, 2001), including counterproductive behavior (Green- berg, 1990, 1993b, 2002; Skarlicki, Folger, & Tesluk, 1999) and task performance (Konovsky & Cropanzano, 1991; Van den Bos, Vermunt, & Wilke, 1996). However, meta-analytic results suggest that a substantial amount of variation exists in these relationships, and that moder- ators could explain much of that variation (Colquitt et al., 2001). Indeed, the relationships between the justice dimensions and performance are some of the most inconsistent eVects in the literature. The purpose of the present study was to identify per- sonality-based moderators that could explain some of the inconsistencies in the eVects of justice on task perfor- mance and counterproductive behavior. According to the interactional psychology perspective, behavior is determined by a complex interplay of personal and situ- ational variables such that personality alters the cogni- tive construction of an individual’s environment and shapes the meaning of the various responses to that envi- ronment (Schneider, 1983). Applied to the study of reac- tions to fair and unfair treatment, this perspective would acknowledge that personality alters individuals’ percep- tions of their treatment while also shaping the cognitive and behavioral reactions triggered by those perceptions. Thus, we focus on personality moderators of justice eVects, though both personal and situational diVerences could potentially serve as boundary conditions. If personality variables indeed are capable of explain- ing variation in justice reactions, the key question becomes which personality traits are most worthy of study. To make that critical choice, we drew on the set of theories that has been introduced in the justice literature over the past Wve years: fairness heuristic theory (Lind, 2001; Van den Bos, 2001a), uncertainty management theory (Lind & Van den Bos, 2002; Van den Bos & Lind, 2002), and fairness theory (Folger & Cropanzano, 2001). These theories represent what Colquitt, Greenberg, and Zapata-Phelan (2005) termed the “integrative wave” of the justice literature, described as “a phase in which scholars began building models and theories that exam- ined the eVects of multiple justice dimensions in combi- nation” (p. 35). The theories are termed “integrative” because, unlike other theories that focus on only one type of justice (e.g., equity theory, Adams, 1965), the integrative theories consider multiple forms of justice in concert. Because these three integrative theories capture much of the current thinking on why justice matters to people and why it impacts their behavior, we reasoned that the mechanisms in those theories could highlight potentially impactful moderators. Moreover, given that Lind (2001) suggested that the most relevant dependent variables in fairness heuristic theory are those variables that capture the distinction between cooperative and antisocial behaviors, and Folger and Cropanzano (2001) argued that fairness theory can explain the presence ver- sus absence of retaliatory behaviors, we felt that task performance and counterproductive behavior were appropriate outcomes for examining personality moder- ators of justice eVects. Past research on moderation of justice eVects Distributive justice research Concerns about individual diVerences in justice reac- tions are not new. In one of the Wrst reviews of the sub- ject, Major and Deaux (1982) stated that research on individual diVerences in justice behavior could be divided into two categories: (a) individual diVerences in reward allocation decisions, and (b) individual diVer- ences in reactions to inequity. The authors noted that the study of personality moderators of equity reactions was relatively rare. However, such work was bolstered by the introduction of equity sensitivity (Huseman, HatWeld, & Miles, 1987), a construct intended to capture sensitivity to diVerences in outcome/input ratios. Equity sensitivity can be conceptualized as a continuum ranging from “Benevolents” to “Entitleds.” Huseman et al. (1987) originally conceptualized Benevolents as individuals who prefer their outcome/input ratios to be less than a comparison other’s (underreward) and Entitleds as indi- viduals who prefer their outcome/input ratios to be greater than a comparison other’s (overreward). King, Miles, and Day (1993) redeWned Benevolents as having greater tolerance for underreward, with Entitleds having greater tolerance for overreward. In between Benevo- lents and Entitleds are “Equity Sensitives,” who adhere to Adams’s (1965) original conceptualization of equity reactions—experiencing distress when their ratios diVer in either direction. Procedural justice research Though the introduction of procedural justice pro- vided a potential new direction for research on personal- ity moderators of justice eVects, very few studies have pursued this direction. Early studies examined traits such as locus of control (Sweeney, McFarlin, & Cotton, 1991) and delay of gratiWcation (Joy & Witt, 1992) but did not explore their moderating eVects on attitudinal or behavioral reactions. However, subsequent studies have explored personality traits as moderators of both behav- ioral and attitudinal reactions to procedural justice. Sch- mitt and Dorfel (1999) found that sensitivity to befallen 112 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 injustice (SBI) moderated the relationship between pro- cedural justice and self-reported health. Individuals high in SBI are expected to more frequently recall unjust events, become more angry about them, be more likely to be preoccupied by them, and have a stronger urge for punitivity (Schmitt, Neumann, & Montada, 1995). Other studies have drawn from various theories to identify personality moderators of procedural justice eVects such as self-esteem (Brockner et al., 1998) and exchange ideology (Witt, Kacmar, & Andrews, 2001), the latter reXecting an employee’s expectation of (and likely response to) exchange relationships with his or her organization (Eisenberger, Cotterell, & Marvel, 1987). In addition, Hagedoorn, Buunk, and van de Vliert (2002) examined the belief in a just world as a moderator of procedural and distributive justice eVects, and a recent study by Van den Bos, Maas, Waldring, and Semin (2003) found support for the moderating role of aVect intensity on emotional reactions to procedural and dis- tributive justice. Interactional justice research The introduction of interactional justice provided another new direction for research on personality mod- erators of justice eVects. We are aware of only two stud- ies that have explored moderators of such eVects. Skarlicki et al. (1999) found that the combination of low interactional justice and low distributive justice was more likely to result in retaliation when individuals were high in negative aVectivity and low in agreeableness. Heuer, Blumenthal, Douglas, and Weinblatt (1999) reported that interactional justice had a stronger eVect on fairness perceptions for high esteem individuals, a result which provided support for the relational model of justice (Tyler & Lind, 1992). Applying integrative justice theories to personality moderators of justice eVects The articles discussed in the prior section illustrate that scholars have begun to identify personality modera- tors of justice eVects. However, two points should be noted about the extant literature. First, few studies have explored justice moderators with behavioral reactions, with outcomes instead consisting of either fairness per- ceptions (e.g., Joy & Witt, 1992; Sweeney et al., 1991) or attitudinal outcomes (e.g., Schmitt & Dorfel, 1999; Witt et al., 2001). Second, studies of moderators of procedural and interactional justice eVects remain relatively rare, with more work focusing on distributive eVects. To move the literature examining personality mod- erators of justice eVects forward, we believe it would be useful to establish a more direct linkage to the cur- rent state of theorizing in the justice literature. As noted above, fairness heuristic theory, uncertainty management theory, and fairness theory capture the current thinking about organizational justice issues. With their focus on multiple justice dimensions, these theories could hold potential for identifying personal- ity moderators that cut across more than one type of justice. Creating a more direct linkage between research on moderators of justice eVects and these integrative theories could have two primary beneWts. First, the theories could be used to establish a concep- tual framework that explains how and why a given trait could alter an individual’s response to fair or unfair treatment. Second, the theories could be used to guide the critical question of which traits to examine next, given the potentially endless list of traits avail- able for study. A brief review of integrative justice theories Fairness heuristic theory Fairness heuristic theory, which grew out of earlier work on the relational model of justice (Tyler & Lind, 1992), suggests that individuals in organizations are con- tinually faced with the “fundamental social dilemma” (Lind, 2001; Van den Bos, 2001a). Although cooperating with organizational agents can lead to better outcomes in the long term, it also raises the potential of exploita- tion. To cope with that dilemma, individuals use a “fair- ness heuristic”—a psychological shortcut used to decide whether to cooperate with authorities. Lind (2001) argued that the fundamental social dilemma highlights the importance of trust, where trust is deWned as a willingness to accept vulnerability to another based on positive expectations of that person’s intentions and actions (Mayer, Davis, & Schoorman, 1995). Unfortunately, the trustworthiness of authorities can be diYcult to judge, as it depends on assessments of unobservable concepts like integrity, benevolence, and ability. In contrast, fairness perceptions depend on rela- tively more observable phenomena such as met expecta- tions (Blau, 1964), consistency of procedures (Leventhal, 1980), and respectfulness of communication (Bies & Moag, 1986). Thus, fairness heuristic theory argues that justice is used as a proxy for trust, with fair treatment signaling a trustworthy authority (Lind, 2001; Van den Bos, 2001a). The theory suggests that the fairness heuristic is formed quickly during a “judgmental phase” using whatever fairness information is Wrst gathered or is most interpretable. Once the heuristic has been formed, the theory argues that individuals will use it as a proxy for trust to guide day-to-day actions (see Van den Bos, Wilke, & Lind, 1998a, for empirical support), a period termed the “use phase” (Lind, 2001). Individuals con- tinue to employ the heuristic until a “phase shifting event,” such as a particularly important or unexpected J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 113 change at work, causes the individual to reconsider fair- ness levels and return to the judgmental phase. Uncertainty management theory In subsequent work, Lind and Van den Bos deempha- sized uncertainty about trust per se, instead focusing on more general forms of uncertainty. For example, Van den Bos (2001b) asked participants to describe the emo- tions they typically feel when they are uncertain or not in control. Results showed that justice had a stronger eVect on reactions when uncertainty was high than when uncertainty was low. Such studies led to the formal introduction of uncertainty management theory, which was cast as a successor to fairness heuristic theory (Lind & Van den Bos, 2002; Van den Bos & Lind, 2002). Uncertainty management theory recognizes that many aspects of work and family life may contain uncer- tainty. According to the theory, fairness can remove trust-related uncertainty and mitigate the discomfort associated with other forms of uncertainty—even if they have nothing to do with authorities. The authors sum- marized this key tenet as follows: “What appears to be happening is that people use fairness to manage their reactions to uncertainty, Wnding comfort in related or even unrelated fair experiencesƒ” (Lind & Van den Bos, 2002, p. 216). Fairness theory Fairness theory argues that individuals engage in counterfactual thinking to determine the fairness of a particular event and whether authorities should be blamed for that event (Folger & Cropanzano, 2001). More speciWcally, an individual makes three diVerent counterfactual determinations: would, could, and should. An individual assesses what would have happened when he or she imagines plausible alternative states of being to the current situation. An individual assesses what could have happened when he or she determines whether events were under the discretion of an authority. When an individual assesses what should have happened, he or she considers whether the authority’s behavior was mor- ally appropriate. According to the theory, individuals typically react to a decision-making event by Wrst judging whether welfare has been reduced or threatened. If individuals determine that an injury has occurred, the next question is whether the authority can be blamed. That judgment of blame depends on the presence of other feasible alternatives, as authorities cannot be blamed if they had no control over their choice of actions. Folger and Cropanzano (2001) further suggested that blame can only be placed if some ethical principal of social conduct has been violated. The characteristics of fairness theory can be distin- guished from fairness heuristic theory and uncertainty management theory on a number of levels. First, the counterfactual thinking described in fairness theory is triggered by a discrete event, whereas the fairness heuris- tic is used and maintained across a number of events. Sec- ond, the process of judging fairness is more deliberate in fairness theory, relative to the almost subconscious short- cuts described in the other two theories. Third, the mech- anisms that guide behavioral reactions are decidedly diVerent. With its emphasis on blame, fairness theory is ideally suited to explaining counterproductive reactions (Folger & Cropanzano, 2001). In contrast, fairness heu- ristic theory’s emphasis on cooperation makes it more relevant to explaining prosocial behaviors (Lind, 2001). Which traits worthy of study can be derived from the integrative theories? The integrative theories reviewed above can be used to create a conceptual framework that describes how and why a given personality trait could moderate the eVects of certain justice dimensions. Each of the theories considers three distinct questions in some form: (a) Why do individuals care about justice—what triggers justice concerns in the Wrst place? (b) How carefully and inten- sively do individuals ruminate on justice information once their concerns have been triggered? (c) What actions could individuals take once they believe that unfairness has been experienced? As summarized in Fig. 1, these three questions provide three diVerent mechanisms that could be aVected by an individual’s personality. Consider a personality trait that makes individuals more sensitive to justice, causes them to ruminate on jus- tice information more deliberately, and increases the likelihood that they will react to injustice with some action. That trait should amplify the eVects of justice on behavioral reactions, and that result should be fairly robust across contexts because it is being realized through three distinct mechanisms. Judge and Larsen (2001) used similar logic in their stimulus–organism– response (S–O–R) model of personality inXuences on job satisfaction. They argued that personality variables should have a signiWcant eVect on job satisfaction to the extent that they aVect sensitivity to environmental stim- uli, inXuence the cognitive and emotional processing of those stimuli within the organism, and heighten the like- lihood of an eventual response. The subsequent sections of this manuscript review traits, derived from the inte- grative theories, that are likely to inXuence more than one of the mechanisms shown in Fig. 1. Trust propensity Given the central role of trust in fairness heuristic the- ory (Lind, 2001; Van den Bos, 2001a), trust propensity stands out as a personality variable that could moderate justice eVects. Trust propensity is a generalized expecta- tion about the trustworthiness of others (Mayer et al., 1995), which should impact all three of the mechanisms 114 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 in Fig. 1. Suspicious individuals should attend more to their environment when forming trust judgments, and fairness concerns should be more easily triggered as sus- picions about ability, benevolence, and integrity govern day-to-day interactions (Mayer et al., 1995). Suspicious individuals should also ruminate on fairness-relevant information more deliberately, as the use of the fairness heuristic continues until an important event causes a “phase shift” that bumps the individual back to the judgmental phase (Lind, 2001). The threshold for phase shifting should be lower for suspicious individuals given their generally wary reactions to stimuli. If so, individu- als low in trust propensity will more frequently engage in careful analysis of justice information. Finally, individuals low in trust propensity should be more likely to respond to unfair treatment with behav- ioral repercussions. Lind (2001) noted that “the fairness heuristic is an imprecise algorithm for deciding what is the best thing to do” (p. 66). Relying on the heuristic during the use phase will inevitably cause individuals to gloss over daily or weekly Xuctuations in actual fairness levels. Suspicious individuals, on the other hand, will be unlikely to gloss over such Xuctuations. Their more care- ful and frequent analysis of actual fairness levels should allow their behaviors to be based on a cognitive ledger of treatment versus contributions. Fairness heuristic theory deemphasizes the distinc- tions among the various justice dimensions, arguing that the timing and interpretability of fairness experiences is more relevant than their actual content. Nevertheless, we would argue that trust propensity will be more likely to moderate procedural and interactional justice eVects, as opposed to distributive eVects. Models in the trust litera- ture explicitly recognize procedural principles like con- sistency, bias suppression, and ethicality as forms of integrity (Mayer et al., 1995). Those same models also recognize interactional principles like respectfulness, supportiveness, and openness as forms of benevolence (Mayer et al., 1995). In contrast, distributive principles have much less presence in trust theorizing. Trust pro- pensity should therefore be more likely to impact the consideration of (and reaction to) procedural and inter- actional information because these justice dimensions tap trustworthiness issues to a greater extent. We there- fore predicted: Hypothesis 1. Propensity to trust moderates the eVects of (a) procedural justice, and (b) interactional justice, on task performance and counterproductive behavior, such that the relationships are stronger for individuals low in trust propensity and weaker for individuals high in trust propensity. Risk aversion The shift from fairness heuristic theory to uncertainty management theory supplanted trust as a central con- cern in favor of more general uncertainty. In discussing the importance of uncertainty, Lind and Van den Bos (2002) suggested that “tolerance of risk” could be an important determinant of the importance of justice (p. 215). The personality variable that most closely captures such tolerance is risk aversion. Risk aversion is an Fig. 1. Conceptual model of personality moderators of justice eVects. J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 115 individual diVerence that captures diVerential attention to stimuli in potentially risky situations, along with the tendency to react to risk with anxiety and eventual with- drawal (e.g., Cable & Judge, 1994; Maehr & Videbeck, 1968). Though risk levels are, to a large extent, driven by situational characteristics, highly risk-averse individuals view and react to those situations diVerently than less risk-averse individuals. Risk aversion should be associated with increased sensitivity to justice concerns. Because risk-averse indi- viduals react to uncertainty with more anxiety, they should pay close attention to any environmental cues that can help them manage or mitigate such uncertainty (Lind & Van den Bos, 2002). That same sense of caution should prompt risk-averse individuals to resist relying on an “imprecise algorithm” like the fairness heuristic (Lind, 2001) in favor of a careful, reasoned analysis of authority behavior. The linkage between risk aversion and the likelihood of behavioral response is less straight- forward. It seems likely that risk-averse individuals will respond to an injustice with a behavioral response that does not create a great deal of anxiety. Because risk averse individuals react to adverse stimuli with more fre- quent withdrawal (e.g., Cable & Judge, 1994; Maehr & Videbeck, 1968), passive forms of retaliation (like decreased eVort or task performance) could be likely. Individuals’ likelihood of engaging in more active retali- ation (like counterproductive behavior) should depend on the risk involved in such acts. When the risk involved is low, counterproductive behavior should provide another means of retaliation for risk-averse individuals. Our predictions for trust propensity were limited to procedural and interactional justice because of their spe- cial relevance to trust—does the same type of distinction need to be made for risk aversion? Van den Bos and Lind (2002) deWned uncertainty quite broadly, framing it as the unpredictability of future events that deprives one of con- Wdence about what to expect from the environment. Unfair procedures should create an especially high level of uncertainty because procedures have a systemic char- acter—they remain in place over the long-term (Sweeney & McFarlin, 1993). Unfair treatment by an authority Wgure also has long-term implications on uncertainty, so long as the authority remains in his or her position for an extended period of time. In contrast, concerns about unfair outcome distributions are more short-term in ori- entation, as outcomes tend to have a discrete, episodic character. Nevertheless, distributive unfairness deprives an individual of conWdence in how to behave and what to expect. UnfulWlled expectations (Blau, 1964), inconsistent social comparisons (Adams, 1965), and divergence in rewards and costs (Homans, 1961) prevent the develop- ment of the behavior-outcome contingencies that are endemic to so many models of volitional behavior (Kan- fer, 1991). We therefore made risk aversion moderation predictions for all three justice dimensions: Hypothesis 2. Risk aversion moderates the eVects of (a) procedural justice, (b) interactional justice, and (c) dis- tributive justice on task performance and counterpro- ductive behavior, such that the relationships are stronger for individuals high in risk aversion and weaker for indi- viduals low in risk aversion. Morality In the years since fairness theory was Wrst introduced, a great deal of attention has focused on the should com- ponent of the theory, which captures whether an author- ity’s actions have complied with moral or ethical principles. This attention can be seen in the “moral vir- tue” and “deontic” perspectives on justice, which argue that justice is valued because it signiWes adherence to prevailing moral standards (Cropanzano et al., 2001; Folger, 1998, 2001; Folger, Cropanzano, & Goldman, 2005). The “deontic” term comes from the Greek word deon, meaning duty or obligation (Folger, 2001). Folger et al. (2005) argued that violations of moral principles can trigger “deontic anger,” which may prompt retalia- tory behaviors even when such actions are not rational (Folger et al., 2005). Of course, there are likely to be individual diVerences in the degree to which individuals experience deontic anger, as well as their responses to such violations. Fol- ger (1998) hinted that an individual’s morality might be one variable that captures such variation. Within the personality literature, trait morality can be operationally deWned as a combination of high agreeableness and high conscientiousness. Hofstee, de Raad, and Goldberg (1992) introduced an integration of the Big Five and cir- cumplex approaches to trait structure. The authors described 10 diVerent circumplex models, each of which illustrates various combinations (or blends) of two Big Five factors. Taken together, these 10 circumplex models were used to provide operational deWnitions for 540 spe- ciWc traits. One of those traits was “moral”, which was positioned in the high agreeableness, high conscientious- ness area of one of the circumplex models (see also de Raad, Hendriks, & Hofstee, 1992). Other studies have similarly shown that trait morality, and related concepts such as trait integrity, seem to represent a blend of high agreeableness and high conscientiousness (Ones, 1994; Saucier & Goldberg, 1996). The circumplex origin of trait morality is important in that the intersection of agreeableness and conscien- tiousness is believed to capture a behavior pattern not explainable by simple additive eVects of those two Big Five dimensions. However, we should acknowledge that this trait-based version of morality diVers from Kohl- berg’s (1984) conceptualization of the stages of moral development. A trait-based view emphasizes static or cross-sectional diVerences in morality across individuals, whereas Kohlberg’s (1984) emphasis was on within-indi- vidual transitions over time (Walker, 2002). To highlight 116 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 this critical diVerence and reduce potential confusion, our manuscript intentionally uses the term ‘‘trait moral- ity” when describing our moderator variable. High levels of trait morality should be associated with increased sensitivity to justice concerns. From a moral virtue perspective, justice can help bring meaning to working life (Cropanzano et al., 2001; Folger, 1998). Highly moral individuals may be more likely to search for that meaning and should also be less likely to engage in unjust behaviors themselves. They should therefore react to others’ instances of injustice with more deontic anger, leading to more deliberate rumination on justice- relevant information. In a fairness theory sense, moral individuals should have a heightened interest in the should counterfactual portion of the blame assessment process (Folger & Cropanzano, 2001). The linkage between trait morality and the likelihood of behavioral response would seem to depend on the nature of the speciWc reaction. On the one hand, highly moral individuals are particularly likely to hold others responsible for their actions, as morality is associated with a tendency to ascribe responsibility (Zuckerman & Reis, 1978) and sanctions often follow from ascriptions of blame (Pizarro, Uhlmann, & Bloom, 2003). Moreover, Folger et al. (2005) suggested that retribution against the source of an injustice is itself a “moral remedy” that is consistent with social exchange theories of interaction (Blau, 1964). Bies and Tripp (1995) went so far as to describe revenge as a “moral imperative,” noting that perpetrators of revenge often report a strong belief that they were “doing the right thing” (pp. 258–259). On the other hand, individuals high in trait morality should be very resistant to the prospect of engaging in counterproductive behaviors like theft or retaliation. Indi- rect support for this assertion can be drawn from a series of studies by Turillo, Folger, Lavelle, Umphress, and Gee (2002). The studies gave participants the opportunity to either self-sacriWcially punish an individual who had exhibited unfair intentions in a past phase of the study, or self-sacriWcially reward an individual who had exhibited fair intentions. Punishments and rewards occurred using a payout matrix, where participants chose their own payout while also allocating payouts to others. Importantly, the results of one of the studies revealed that participants decided to punish past transgressions only when those actions did not harm the payouts received by other cur- rent participants. The authors wrote, “These results sup- port our reasoning that individuals will only engage in retributive justice to punish unfairness in the past when, by doing so, they are not themselves being unfair in the present.” (p. 852). Because a counterproductive response means “being unfair in the present,” a moral individual should be more likely to respond to injustice with less task-related eVort as opposed to more overt forms of retaliation. A reduction in performance can amount to a brand of “civil disobedience” that is relatively harmless to others. As a result, our hypotheses for trait morality are limited to task performance. As with the other integrative theories, fairness theory emphasizes the commonalities among the diVerent forms of justice rather than the diVerences. For example, the would counterfactual considers an event’s aversiveness, with no particular importance given to whether the event is distributive, procedural, or interactional in nature (Folger & Cropanzano, 2001). The could counter- factual assesses whether other sequences of events or actions might have been feasible, again with little emphasis on modalities of justice. However, discussions of the should counterfactual and writings on the moral virtue and deontic approaches to justice do seem to pri- oritize procedural and interactional justice violations (Folger, 1998, 2001; Folger & Cropanzano, 2001). Proce- dural and interactional justice rules, such as bias, ethical- ity, respectfulness, and honesty seem more “morally charged” than distributive concepts like met expecta- tions, reward-cost proportionality, and outcome/input ratio comparisons. Indeed, in Folger’s (2001) “deontic diVerentiation” of distributive, procedural, and interac- tional justice (pp. 22–25), he speculated that moral accountability for justice tends to grow stronger in ascending order from distributive to procedural to inter- actional (see also Turillo et al., 2002). We therefore made moderation predictions for only the latter two dimen- sions of justice: Hypothesis 3. Trait morality moderates the eVects of (a) procedural justice and (b) interactional justice on task performance, such that the relationships are stronger for individuals high in trait morality and weaker for individ- uals low in trait morality. Alternative approaches to moderation of justice eVects Though the hypotheses advanced in Fig. 1 are derived from the three theories that form the core of the so-called “integrative wave” of the justice literature (Colquitt et al., 2005), there are other potential approaches to the study of moderation of justice eVects that have been used in past research. One approach is the study of personality traits that are speciWcally designed to moderate justice eVects, as in the cases of equity sensitivity (Huseman et al., 1987) and sensitivity to befallen injustice (SBI; Sch- mitt et al., 1995). Both traits might have moderating potential, though research on equity sensitivity is limited to distributive justice eVects and research on SBI has yet to extend beyond the tests by Schmitt and colleagues (e.g., Schmitt & Dorfel, 1999; Schmitt et al., 1995). We therefore included equity sensitivity and SBI so that their moderating eVects could be compared to the eVects of trust propensity, risk aversion, and trait morality. A second alternative approach to moderation of jus- tice eVects is the Wve-factor model of personality J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 117 (Costa & McCrae, 1992; Goldberg, 1990). The “Big Five” dimensions of conscientiousness, agreeableness, neuroticism, openness to experience, and extraversion subsume many of the narrow traits shown in Fig. 1. The Big Five may also moderate justice eVects, as research by Skarlicki et al. (1999) showed that agreeableness and neuroticism moderated the eVects of speciWc justice com- binations. However, as Hogan and Roberts (1996) noted, broad traits are not always best suited for narrow predictions, and the reaction to an injustice is clearly a more speciWc criterion relative to day-to-day job perfor- mance. Nevertheless, we also included the Big Five as alternative moderators of justice eVects to provide a sec- ond frame of comparison for the eVects predicted in Fig. 1. Method Sample Participants were 238 undergraduates from a large, southeastern university recruited from an introductory management course. Females composed 45% of the sam- ple. In exchange for participation, participants were given course credit and earned a $5 cash prize. Procedure Upon entering the laboratory, participants were seated at one of Wve tables. Each table had a pen holder containing seven expensive-looking pens. The tables were arranged so that participants’ views of one another were obstructed during the session. The experimenter provided a cover story, informing participants that the purpose of the study was to validate assessment tools that would be used in the future hiring of research assis- tants. Included in these assessment tools were a proof- reading task and a reading comprehension task, and participants were told that their performance on the Wrst of these (the proofreading task) would determine whether they would receive a $5 cash prize. Participants were told that around 66% of the participants would perform well enough to receive the cash prize. This instruction ensured that all participants began the exper- iment with the same expectations for being rewarded. Participants were then told that they could choose a pen to use during the study and that they could keep the pen they chose. They were then given seven minutes to complete the proofreading task, which contained a pas- sage describing various types of work groups (e.g., for- mal, informal, virtual). Next, the experimenter informed participants that he would leave the room to grade the tasks and then would return to give the participants feedback on their performance. During the grading period, participants completed a questionnaire assessing the Big Five, risk aversion, trust, and equity sensitivity, which contained the following instructions: “This ques- tionnaire assesses various aspects of your personal and general attitudes. Please answer the questions in each section as honestly as you can.” Unless otherwise noted, all items on all questionnaires utilized a 5-point scale, where 1 D Strongly Disagree and 5 D Strongly Agree. After 10 min, the experimenter called each partici- pant individually to another room to deliver the justice manipulations. Procedural, distributive, and interac- tional justice were then manipulated by the experi- menter via eight possible statements, resulting in a 2 £ 2 £ 2 between-subjects design with participants randomly assigned to conditions. Table 1 provides the exact wording of the justice manipulations. The proce- dural manipulation varied Leventhal’s (1980) accuracy and consistency criteria for justice in a manner similar to Van den Bos, Bruins, Wilke, and Dronkert (1999). Interactional justice was manipulated using the inter- personal justice subfacet, which captures the sincerity and respectfulness of authority communication (Col- quitt, 2001; Greenberg, 1993a). The remainder of this manuscript uses the interpersonal justice label in the interest of precision. SpeciWcally, the manipulation var- Table 1 Summary of justice manipulations Justice dimension Level Text of manipulation Procedural High In the past, I’ve always graded the whole proofreading task in order to be as accurate and consistent as possible. So I took the time to carefully grade all the paragraphs that you corrected. Low In the past, I’ve always graded the whole proofreading task in order to be as accurate and consistent as possible. I didn’t do that here though. I Wnished grading everyone else’s but ran out of time on yours, so I just graded the last paragraph. Interpersonal High I understand that students are very busy, and there’s a lot of other things you could be doing right now besides helping us out. We really appreciate your time. Thanks a lot. Low Whatever. I don’t give a damn whether you get paid or not. That’s the way it is. I’ve got better things to do than grade these things. Distributive High Anyway, (from that one paragraph/based on those paragraphs) I have determined that you should be paid. Low Anyway, (from that one paragraph/based on those paragraphs) I have determined that you should not be paid. 118 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 ied the respect and rudeness components of the con- struct (Bies & Moag, 1986). Distributive justice was manipulated by meeting or not meeting participants’ expectations about the receipt of the $5 reward, similar to the approach used by Greenberg (1993b) and Van den Bos, Wilke, Lind, and Vermunt (1998b). Partici- pants were either paid immediately, thereby meeting expectations, or were told they would not be paid, thereby failing to meet expectations. Next, participants were given 10 min to complete a reading comprehension test, which served as the measure of task performance. This test consisted of a short pas- sage describing carpal tunnel syndrome followed by eight questions which required participants to examine the speciWc details and main points of the passage to obtain the correct answers. Using reading comprehen- sion as a measure of task performance is appropriate in this context because the test was designed to be largely eVort-driven as opposed to ability-driven. The questions were not diYcult but did require a careful perusal of the passage on the part of the participant. SpeciWcally, we included a brief paragraph at the end of the passage that corrected previous statements. To answer the questions correctly, participants had to take the time to carefully read the entire passage. Participants then completed a Wnal questionnaire that contained items for the manipu- lation checks, sensitivity to befallen injustice, and trait morality. Near completion of the Wnal questionnaire, the experi- menter interrupted and stated: “Um, I have to make a phone call. When you guys are done just leave your ques- tionnaire on your desk and you’re free to go. Oh, also: I know I read from the script earlier that you could keep the pen, but we’re running some more sessions and it looks like we’re getting a little low. So, if you would not keep the pen I’d appreciate it.” The experimenter then left the room, giving participants the opportunity to take pens from the pen holder. The set up of the room prevented participants from being able to access the pen containers of others, so they could only take pens from their individ- ual pen holder. When participants exited the room, the experimenter asked each one to wait for the others. Once all had exited, the experimenter then brought the partici- pants into another room to debrief them about the true nature of the experiment. Finally, participants who did not receive the $5 during the study were paid. Integrative theory traits Trust propensity We measured trust propensity using 5 items from the International Personality Item Pool (2001). The items included: “I trust others,” “I trust what people say,” “I am wary of others (R),” “I suspect hidden motives in others (R),” and “I distrust people (R).” CoeYcient � for this scale was .81. Risk aversion Risk aversion was also assessed using 6 items from the International Personality Item Pool (2001). Items included: “I enjoy being reckless (R),” “I take risks (R),” “I seek danger (R),” “I seek adventure (R),” I would never go hang-gliding or bungee jumping,” and “I would never make a high risk investment.” CoeYcient � for this scale was .82. Trait morality This trait was measured using 6 items from the Inter- national Personality Item Pool (2001). The items included: “I would never cheat on my taxes,” “I turn my back on others (R),” I scheme against others (R),” “I act at the expense of others (R),” “I respect the privacy of others,” and “I respect authority.” CoeYcient � for this scale was .86. ConWrmatory factor analysis We conducted a conWrmatory factor analysis on the measures of the three integrative theory traits to deter- mine whether the items seemed to be tapping three dis- tinct constructs. We included a reverse-wording factor with loadings on the items worded in the opposite direc- tion from the majority of the scale, given that responses to these sorts of items can be inXuenced by careless respondents (Schmitt & Stults, 1985). The trait morality scale was balanced in wording, so the items reXecting a lack of morality were loaded onto the wording factor. We also allowed the errors for the two “I trustƒ” items to covary as their item similarity resulted in an observed correlation signiWcantly higher than the model repro- duced correlation. The results of a three-factor model provided an acceptable Wt to the data (�2 (108) D 174.50; CFI D .954; RMR D .048; RMSEA D .052). The loadings for the three personality factors were all statistically sig- niWcant and averaged as follows: trust propensity (.62), risk aversion (.63), and trait morality (.59). The correla- tions among the three latent variables were moderate in magnitude, with an absolute average of .25. Taken together, these results support the assertion that the scales are measuring three distinct factors. Alternative moderators Equity sensitivity We measured equity sensitivity using the 5-item scale developed by King and Miles (1994). Participants were asked to divide 10 points between two opposing state- ments by “giving the most points to the choice that is most like you and the fewest points to the choice that is least like you.” All Wve items began with the phrase “In any organization I might work for:” An example item is “It would be more important for me to (A) get from the organization or (B) give to the organization.” The instrument was scored by adding items reXecting J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 119 Entitledness; thus high scores represent a high sensitivity to perceived underreward. The potential range of scores was zero to 50. CoeYcient � for this scale was .77. Sensitivity to Befallen injustice We measured SBI using the 10-item scale developed by Schmitt and Maes (2000). A sample item is: “It both- ers me when others receive something that ought to be mine.” CoeYcient � for this scale was .87. Big Five dimensions We measured the Wve-factor model using the Big Five Inventory (BFI; John, Donahue, & Kentle, 1991), with dimensions as follows: neuroticism (eight items, e.g., “I can be moody,” � D .86), extraversion (eight items, e.g., “I have an assertive personality,” � D .89), openness to experience (10 items, e.g., “I am curious about many things,” � D .86), agreeableness (nine items, e.g., “I have a forgiving nature,” � D .75), and conscientiousness (eight items, e.g., “I do a thorough job,” � D .80). Outcome measures Task performance Task performance was assessed by scoring each par- ticipant’s answers to the reading comprehension test. Task performance ranged from a possible score of zero (no correct answers) to eight (all answers correct). Counterproductive behavior We measured counterproductive behavior by the number of pens taken from each participant’s pen holder upon leaving the experiment (pen holders held seven pens in total). Counterproductive behavior ranged from 0 (no pens taken) to 3 (the maximum number of pens taken by a participant). The act of tak- ing a pen when asked not to do so likely taps two diVerent counterproductive behaviors that range in severity. At its most severe, taking a pen represents a form of theft. At its least severe, taking a pen repre- sents a form of intentional noncompliance with an authority Wgure. Manipulation checks We assessed whether participants perceived the jus- tice manipulations as intended using three items for each dimension of organizational justice. The procedural jus- tice items included “The grading procedures used on the proofreading task seemed accurate.” (� D .94). The inter- personal justice items included “The experimenter spoke to me with sincerity and respect.” (� D .97). The distribu- tive justice items included “I received the $5 reward for the proofreading task.” (� D .96). We also veriWed that the manipulations aVected perceptions of fairness by including the following four-item global fairness percep- tions scale (e.g., “In general, this was a fair experiment”) (� D .96). Results Manipulation checks A MANOVA with the three manipulation check scales as dependent variables revealed signiWcant main eVects for all three manipulations (F D 903.40, p < .001, for distributive justice; F D 36.24, p < .001, for interper- sonal justice; F D 10.10, p < .001, for procedural justice) with no interaction eVects. ANOVA results showed that the distributive manipulation had a strong eVect on the distributive check (F D 2724.93, p < .001, �2 D .92, M D 4.67 vs. 1.21) and weaker eVects on the procedural (F D 20.85, p < .001, �2 D .08, M D 3.17 vs. 2.50) and inter- personal checks (F D 23.03, p < .001, �2 D .09, M D 3.99 vs. 3.33). The interpersonal manipulation had a strong eVect on the interpersonal check (F D 92.65, p < .001, �2 D .29, M D 4.25 vs. 2.84), a weaker eVect on the procedural check (F D 6.13, p < .01, �2 D .03, M D 2.99 vs. 2.58), and no eVect on the distributive check (F D .12, p D .73, �2 D .00, M D 2.77 vs. 2.85). The procedural manipulation had a strong eVect on the procedural check (F D 30.56, p < .001, �2 D .12, M D 3.20 vs. 2.36), a weaker eVect on the interpersonal check (F D 10.42, p < .001, �2 D .04, M D 3.89 vs. 3.33), and no eVect on the distributive check (F D .40, p D .53, �2 D .00, M D 2.84 vs. 2.76). All three manipulations also inXuenced global perceptions of fair- ness, explaining a total of 17% of the variance (F D 16.07, p < .001). Unique eVects were as follows: distributive jus- tice (B D .67, p < .001), procedural justice (B D .28, p < .05), and interpersonal justice (B D .54, p < .001). The ANOVA results above indicate some spillover, with a manipulation of one form of justice aVecting checks of another, which is likely due to attempting orthogonal manipulations of variables that are so highly correlated on a perceptual level (Cohen-Charash & Spector, 2001; Colquitt et al., 2001). However, the degree of spillover does not seem serious enough to impair an unambiguous evaluation of the experiment’s results (Perdue & Summers, 1986). The F values for the intended eVects were 53 times stronger than the F values for the unintended eVects, and the �2 values for the intended eVects were 12 times stronger than �2 values for the unintended eVects. Nevertheless, we statistically con- trolled for all spillover by partialling out the contaminat- ing variance from each justice manipulation. For example, we partialled out the shared variance between the procedural manipulation and the interpersonal check by regressing the latter onto the former and using the residual as the new procedural manipulation vari- able. This process resulted in a completely “clean” set of ANOVA results. We should emphasize that this form of 120 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 statistical control did not alter the tests of any of our hypotheses but is presented here to provide as clear a picture of our results as possible. Results for integrative theory traits Table 2 provides the descriptive statistics and zero- order correlations among the variables. The moderated regressions used to test our hypotheses are shown in Table 3. The Wrst two steps assess the main and interac- tive eVects of the justice manipulations, which did not have main or interactive eVects on task performance, with the main eVects falling within the conWdence inter- vals from Colquitt et al.’s (2001) meta-analytic review. The justice manipulations did have signiWcant main and interactive eVects on counterproductive behavior, con- sistent with past research (Greenberg, 1990, 1993b, 2002), with the procedural and distributive manipula- tions reducing counterproductive behavior (though the latter eVect only approached signiWcance at p < .07). The interaction eVects showed that the combination of low procedural justice and either low interpersonal or low distributive justice created particularly high counterpro- ductive behavior levels. The third step of the regressions assesses the main eVects of the three personality traits, with none reaching statistical signiWcance. The fourth step of the regressions enters the justice £ personality product terms used to test the hypotheses. Consistent with the recommendations of Cohen, Cohen, West, and Aiken (2003), we mean-cen- tered all moderators before computing the product terms. The set of justice £ personality product terms explained signiWcant incremental variance in both task performance and counterproductive behavior. Hypothe- sis 1a and b predicted stronger eVects for procedural and interpersonal justice on task performance and counter- productive behavior when trust propensity was low. The interpersonal justice £ trust propensity interaction approached signiWcance for task performance, with the pattern in the predicted direction (p < .07, see Fig. 2). Though not predicted, the results also revealed a similar interaction with distributive justice for task performance (p < .06, see Fig. 2). A signiWcant interpersonal justice £ trust propensity interaction was also observed for counterproductive behavior, but was opposite to Table 3 Moderated regression results for trust propensity, risk aversion, and trait morality Note. n D 238. �R2 values may not sum exactly to R2 values due to rounding error. ¤ p < .05, two-tailed. ¤¤ p < .10, two-tailed. Regression step Task performance Counterproductive behavior R2 �R2 � R2 �R2 � 1. Procedural Justice (PJ) .00 .00 .05 .05¤ .05¤ ¡.19¤ Interpersonal Justice (IJ) .02 ¡.08 Distributive Justice (DJ) .00 ¡.12¤¤ 2. PJ £ IJ .01 .01 ¡.05 .10¤ .06¤ .20¤ PJ £ DJ ¡.04 .15¤ IJ £ DJ ¡.09 .07 3. Trust Propensity .03 .02 .00 .11¤ .01 ¡.02 Risk Aversion .11 .04 Trait Morality ¡.10 ¡.06 4. PJ £ Trust Propensity .12¤ .09¤ ¡.01 .23¤ .12¤ ¡.11 IJ £ Trust Propensity ¡.14¤¤ ¡.21¤ DJ £ Trust Propensity ¡.14¤¤ ¡.05 PJ £ Risk Aversion .14¤ ¡.22¤ IJ £ Risk Aversion ¡.05 ¡.19¤ DJ £ Risk Aversion ¡.06 ¡.08 PJ £ Trait Morality ¡.11 .11 IJ £ Trait Morality .25¤ ¡.02 DJ £ Trait Morality .24¤ ¡.00 Table 2 Descriptive statistics and zero-order correlations Note. n D 237. SBI D Sensitivity to Befallen Injustice. ¤ p < .05, two-tailed. Variable M SD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1. Procedural Justice .00 .49 — 2. Interpersonal Justice .00 .49 ¡.09 — 3. Distributive Justice .00 .48 ¡.08 ¡.12 — 4. Trust Propensity 3.79 .54 .05 .01 ¡.05 — 5. Risk Aversion 3.08 .66 ¡.00 .12 .08 .09 — 6. Trait Morality 4.15 .46 .04 .10 .00 .47¤ .40¤ — 7. Equity Sensitivity 22.45 6.12 ¡.06 .07 .04 ¡.23¤ .08 ¡.22¤ — 8. SBI 2.92 .65 .11 ¡.01 .06 ¡.32¤ .07 ¡.21¤ .19¤ — 9. Conscientiousness 4.04 .53 ¡.03 .02 ¡.03 .35¤ .09 .40¤ ¡.28¤ ¡.12 — 10. Agreeableness 3.84 .50 ¡.05 .06 ¡.03 .51¤ .12 .43¤ ¡.24¤ ¡.28¤ .28¤ — 11. Neuroticism 2.80 .73 .08 ¡.05 ¡.03 ¡.45¤ .17¤ ¡.17¤ .11 .39¤ ¡.33¤ ¡.34¤ — 12. Openness 3.64 .67 ¡.08 .07 ¡.08 .16¤ ¡.10 .17¤ ¡.12 ¡.14¤ .21¤ .23¤ ¡.13¤ — 13. Extraversion 3.58 .72 ¡.01 ¡.10 ¡.01 .41¤ ¡.10 .14¤ ¡.14¤ ¡.05 .20¤ .22¤ .24¤ .13¤ — 14. Task Performance 6.17 1.42 .05 .01 ¡.00 .03 .05 ¡.05 .09 ¡.04 .07 .08 ¡.14 .10 .03 — 15. Counterproductive Behavior .10 .30 ¡.18¤ ¡.05 ¡.10 ¡.03 ¡.04 ¡.10 .06 .07 ¡.12 ¡.02 .03 ¡.01 ¡.08 ¡.01 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 121 predictions. The eVect of interpersonal justice on coun- terproductive behavior was stronger for trusting individ- uals. Neither of the procedural justice interactions reached statistical signiWcance. Fig. 2. Justice £ trust propensity interactions for task performance and counterproductive behavior. High Trust Propensity Low Trust Propensity High Trust Propensity Low Trust Propensity High Trust Propensity Interpersonal Justice Interpersonal Justice T a s k P e rf o rm a n c e T a s k P e rf o rm a n c e C o u n te r p ro d u c ti v e B e h a v io u r Distributive Justice Low Trust Propensity High Low High Low High Low 7.75 7.00 6.25 5.50 4.75 7.75 7.00 6.25 5.50 4.75 0.40 0.30 0.20 0.10 0.00 Hypothesis 2a–c predicted stronger eVects for proce- dural, interpersonal, and distributive justice on task per- formance and counterproductive behavior when risk aversion was high. The procedural justice £ risk aversion interaction was signiWcant for both task performance and counterproductive behavior, with the patterns in the predicted direction (see Fig. 3). A signiWcant interper- sonal justice £ risk aversion interaction was also observed for counterproductive behavior, again in the predicted direction (see Fig. 3). In all three cases, the beneWcial eVects of fair treatment were stronger for indi- Fig. 3. Justice £ risk aversion interactions for task performance and counterproductive behavior. High Risk Aversion Low Risk Aversion High Risk Aversion Low Risk Aversion High Risk Aversion Low Risk Aversion High Low High Low High Low 7.75 7.00 6.25 5.50 4.75 0.40 0.30 0.20 0.10 0.00 0.40 0.30 0.20 0.10 0.00 Interpersonal Justice Procedural Justice Procedural Justice T a s k P e rf o rm a n c e C o u n te r p ro d u c ti v e B e h a v io u r C o u n te r p ro d u c ti v e B e h a v io u r 122 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 viduals who were highly risk-averse. Contrary to predic- tions, neither of the distributive justice interactions was signiWcant. Hypothesis 3a and b predicted stronger eVects for procedural and interpersonal justice on task perfor- mance when trait morality was high. The interpersonal justice £ trait morality interaction was signiWcant for task performance, with the pattern in the predicted direction (see Fig. 4). Though not predicted, the results also revealed a similar interaction with distributive jus- tice for task performance (see Fig. 4). In both cases, the eVects of fair treatment on task performance were more positive for individuals high in trait morality. Contrary to predictions, the procedural justice interaction was not statistically signiWcant. Results for alternative approaches to moderation of justice eVects Table 4 provides the moderated regression results for equity sensitivity and SBI. The Wrst two steps reproduce the justice manipulation results from Table 3. The third step examines the main eVects of the two traits, and nei- ther had signiWcant eVects. The fourth step examines the justice £ personality product terms, and the step was not Fig. 4. Justice £ trait morality interactions for task performance. Table 4 Moderated regression results for equity sensitivity and sensitivity to Befallen Injustice Note. n D 238. �R2 values may not sum exactly to R2 values due to rounding error. ¤ p < .05, two-tailed. ¤¤ p < .10, two-tailed. Regression step Task performance Counterproductive behavior R2 �R2 � R2 �R2 � 1. Procedural Justice (PJ) .00 .00 .05 .05¤ .05¤ ¡.19¤ Interpersonal Justice (IJ) .02 ¡.08 Distributive Justice (DJ) .00 ¡.12¤¤ 2. PJ £ IJ .01 .01 ¡.05 .10¤ .06¤ .20¤ PJ £ DJ ¡.04 .15¤ IJ £ DJ ¡.09 .07 3. Equity Sensitivity .03 .02 .11 .12¤ .01 .04 SBI ¡.08 .11 4. PJ £ Equity Sensitivity .05 .02 ¡.01 .15 .03 ¡.13 IJ £ Equity Sensitivity .10 .06 DJ £ Equity Sensitivity ¡.01 ¡.07 PJ £ SBI ¡.06 ¡.06 IJ £ SBI ¡.08 .02 DJ £ SBI ¡.09 ¡.01 Table 5 Moderated regression results for Big Five dimensions Note. n D 238. �R2 values may not sum exactly to R2 values due to rounding error. ¤ p < .05, two-tailed. ¤¤ p < .10, two-tailed. Regression step Task performance Counterproductive behavior R2 �R2 � R2 �R2 � 1. Procedural Justice (PJ) .00 .00 .05 .05¤ .05¤ ¡.19¤ Interpersonal Justice (IJ) .02 ¡.08 Distributive Justice (DJ) .00 ¡.12¤¤ 2. PJ £ IJ .01 .01 ¡.05 .10¤ .06¤ .20¤ PJ £ DJ ¡.04 .15¤ IJ £ DJ ¡.09 .07 3. Conscientiousness .04 .03 .01 .13¤ .02 ¡.12 Agreeableness .02 .01 Neuroticism ¡.15 .01 Openness .08 ¡.01 Extraversion ¡.02 ¡.08 4. PJ £ Conscientiousness .10 .06 .00 .20¤ .07 .05 IJ £ Conscientiousness .00 ¡.10 DJ£ Conscientiousness ¡.03 .04 PJ £ Agreeableness ¡.07 ¡.13 IJ £ Agreeableness ¡.15 ¡.18 DJ £ Agreeableness .04 ¡.09 PJ £ Neuroticism .04 .00 IJ £ Neuroticism ¡.03 ¡.04 DJ £ Neuroticism ¡.06 ¡.10 PJ £ Openness ¡.00 .06 IJ £ Openness .18 .05 DJ £ Openness .01 .02 PJ £ Extraversion .05 .10 IJ £ Extraversion ¡.04 .02 DJ £ Extraversion .02 .07 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 123 signiWcant for either task performance or counterpro- ductive behavior. Table 5 presents the moderated regres- sion results for the Wve-factor model. As with the other personality traits, the third step of the regressions revealed no main eVects of the Big Five dimensions on task performance or counterproductive behavior. The fourth step examines the justice £ personality product terms, and the step was not signiWcant for either task performance or counterproductive behavior. Discussion Taken together, our results illustrate that the integra- tive theories that have emerged within the justice litera- ture over the past Wve years can be fruitful sources of potential moderators of justice eVects. Although fairness heuristic theory, uncertainty management theory, and fairness theory were not created for the express purpose of identifying personality moderators, the traits exam- ined here Xow neatly from the core propositions of each theory. The signiWcant interactions for trust propensity, risk aversion, and trait morality were observed across types of justice, supporting the replicability of the eVects. With the exception of trait morality, the interactions were also observed for both task performance and coun- terproductive behavior. The task performance eVects are notable, as the interactions help to clarify the inconsis- tent results in past studies of justice and performance (Cohen-Charash & Spector, 2001; Colquitt et al., 2001). Of the moderators examined in our study, risk aver- sion yielded the most promising results, as it ampliWed the beneWcial eVects of both procedural and interper- sonal justice. Indeed, it was the only trait examined in our study that altered procedural eVects. Risk aversion was also the only trait that moderated both task perfor- mance and counterproductive behavior eVects in the pre- dicted manner. In contrast, risk aversion did not alter the eVects of distributive justice on either task performance or counterproductive behavior. Although uncertainty management theory deemphasizes the diVerences among the justice dimensions (Lind & Van den Bos, 2002; Van den Bos & Lind, 2002), it may be that distributive justice is less relevant to the management of uncertainty than procedural or interpersonal justice because it is more episodic, particularly when referenced to a one-time out- come or decision event. With regards to trust propensity, given that justice is used as a proxy for trust, we reasoned that justice would have less value to individuals who trusted “by default,” instead taking on more importance to the dispositionally suspicious. Indeed, our results showed that the eVects of interpersonal and distributive justice on task perfor- mance were more positive for individuals lower in trust propensity. Those eVects aside, two other aspects of our trust propensity results were contrary to predictions. First, trust propensity failed to moderate procedural jus- tice eVects on either task performance or counterproduc- tive behavior, which is somewhat surprising because many procedural justice rules (e.g., consistency, bias sup- pression, and ethicality) overlap conceptually with the integrity dimension of trustworthiness (Leventhal, 1980; Mayer et al., 1995). It may be that trust propensity would emerge as a signiWcant moderator of procedural justice eVects in Weld settings, where long-term relation- ships are prevalent. Second, the eVects of interpersonal justice on counterproductive behavior were actually stronger for individuals high in trust propensity, oppo- site to the task performance results. This result may be akin to Wndings by Brockner, Tyler, and Cooper-Schnei- der (1992) that individuals who were highly committed to an organization experienced greater negative reac- tions as a result of unfair treatment than those less com- mitted. That is, “the higher they are, the harder they fall” (Brockner et al., 1992). However, given that the results for task performance were in the opposite pattern, rather than non-signiWcant, this explanation may not be ade- quate. Future research is needed to provide insight into explaining these conXicting results. The third moderator examined in our study was trait morality. Using a trait-based form of the variable drawn from trait models of personality (de Raad et al., 1992; Hofstee et al., 1992), we found that the eVects of inter- personal and distributive justice on task performance were more positive for individuals high in trait morality. In contrast, trait morality did not moderate the eVects of procedural justice on task performance, contrary to our predictions. Folger (2001) argued that the moral accountability of justice tends to grow in ascending order from distributive to procedural to interactional. Thus, although distributive justice does have moral rele- vance (Folger, 1998, 2001), one would have expected the procedural interaction eVects to be stronger than the dis- tributive. It may be that our Wndings might have diVered had we manipulated procedural rules that were more morally charged than accuracy and consistency, such as bias suppression or ethicality (Leventhal, 1980). To gauge the signiWcant eVects for risk aversion, trust propensity, and trait morality, we explored two alterna- tive approaches to moderation of justice eVects. First, we examined two traits introduced by justice scholars: equity sensitivity and SBI. Both traits failed to moderate the eVects of justice, and their moderating eVects were much weaker than those of the three integrative theory traits. However, it should be noted that equity sensitivity was never intended to moderate the eVects of procedural or interpersonal justice. Similarly, the content of SBI, as measured using Schmitt and Maes’s (2000) scale, is decidedly distributive in nature, with the “befallen injus- tice” usually consisting of others receiving more of something of value. It therefore remains unclear how relevant SBI is to procedural and interpersonal justice. 124 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 Second, we investigated the traits of the Big Five; how- ever, results were weaker compared to the results for the three integrative theory traits, with the justice £ Big Five product terms explaining less variance in the outcomes overall. Although Skarlicki et al.’s (1999) results found signiWcant interactions with Big Five variables, their results involved three-way interactions rather than the two-way eVects explored in our study. Still, it is notable that 6 years have passed since Skarlicki et al.’s (1999) study was published without further published work on justice £ Big Five interactions. It may be that such work has been conducted but yielded non-signiWcant results, creating a potential Wle drawer problem. Practical implications Our results oVer a number of practical implications. Task performance and counterproductive behavior clearly are important outcomes in any organization, as both impact bottom-line costs. Our results add to past research linking justice dimensions to those behaviors (Greenberg, 1990, 1993b, 2002; Konovsky & Cropanz- ano, 1991; Van den Bos et al., 1996). Inaccurate and inconsistent procedures, disrespectful interpersonal treatment, and unexpectedly low rewards impacted counterproductive behavior and task performance, though often in an interactive rather than main eVect fashion. Although justice principles can be trained (e.g., Skarl- icki & Latham, 1996), training initiatives often fail because of a lack of awareness of speciWc person and organizational variables that impact training eVective- ness. The “person analysis” phase of the training needs assessment is used to identify participant characteristics that make training more or less eVective, whereas the “organization analysis” explores contextual variables that can do the same. Our results could inform the per- son analysis, suggesting that justice training interven- tions would have particularly strong eVects when the leaders participating in the training oversee units with predominantly suspicious, cautious, and moral individu- als. However, organizations do not typically collect data on trust propensity, risk aversion, and trait morality, and it would be diYcult to characterize an entire unit on such personality traits. Our results might therefore inform the organization analysis, as justice trainers could consider contextual cues that trigger or amplify concerns about distrust, uncertainty, or moral issues. Limitations As in many laboratory studies, the framing of instruc- tions, the sequence of measurement, and the timing of measurements could impact the generalizability of results. For example, Harrison, McLaughlin, and Coalter (1996) showed that measures that reference fair- ness concepts are susceptible to scale ordering and con- text eVects. Our personality measures, some of which themselves referenced justice concepts, may be suscepti- ble to such biases. Context eVects could also have accounted for the small amount of manipulation spill- over that occurred among the justice manipulation checks. Although we removed this contamination by residualizing the aVected manipulations, a procedural remedy is usually preferred over a statistical one. In addition, our distributive justice manipulation varied fulWllment of expectations rather than outcome/input ratio comparisons. Although expectation fulWllment matches Blau’s (1964) conceptualization of distributive justice and has been used extensively in past research (Greenberg, 1993b; Van den Bos et al., 1998b), that type of manipulation may have constrained equity sensitiv- ity’s eVects, given that it is based on Adams’s (1965) theorizing. Other limitations center on the measures of some of our variables. Van den Bos et al. (1998a) showed that knowledge of trust moderated the eVects of justice, with justice being more impactful when trust was uncertain. Our measure of trust propensity is incapable of separat- ing trust uncertainty from trust valence, as suspicious individuals may either be uncertain about the trustwor- thiness of others or be certain that trustworthiness is lacking. In addition, our measure of counterproductive behavior could be interpreted in two ways: as intentional noncompliance with authority (one of the less serious forms of the construct) and outright theft (one of the more serious forms of the construct). Our results for counterproductive behavior may therefore fail to gener- alize to contexts where the retaliation is clearly serious in nature (e.g., theft of actual money). Finally, the most serious limitation of our study cen- ters on our trait morality measure. Recall that we chose to deWne morality as an intersection of high agreeable- ness and high conscientiousness (Hofstee et al., 1992). However, there are some interpretational ambiguities in trait models, mostly due to the presence of measure- ment error. For example, the adjectives “conscien- tious” and “agreeable” do not themselves fall squarely on the circumplex poles used to deWne those respective Big Five factors. Such ambiguities may hinder the con- struct validity of adjectives like “morality” that reside at the intersection of the conscientiousness and agree- ableness poles. Although future work can clarify many of these issues, there remains a limited amount of research on the Big Five circumplex. Moreover, it is important to note that Hofstee et al.’s (1992) model does not focus on morality per se, instead describing a large number of traits that represent blends of multiple Big Five factors. It is also important to note that the results for our cir- cumplex form of morality cannot be generalized to other forms of the construct, such as a Kohlbergian stage J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 125 approach. As stated previously, a trait approach diVers from a stage approach in that the former emphasizes diVerences across individuals while the latter emphasizes diVerences within individuals over time (Walker, 2002). However, it may be that stage models such as Kohl- berg’s would also be useful for examining moderating eVects of justice (for an example, see Greenberg, 2002). Future researchers utilizing such an approach would beneWt from using appropriate stage measures such as the DeWning Issues Test 2 (Rest, Narvaez, Thoma, & Bebeau, 1999). Suggestions for future research Perhaps the most fruitful area for future research con- cerns one additional limitation of our study. Our concep- tual model in Fig. 1 includes three diVerent mechanisms through which personality traits could moderate justice eVects: sensitivity to justice concerns, deliberate rumina- tion on justice information, and likelihood of behavioral response. Our study did not assess those mechanisms, however. It therefore remains an empirical question whether those mechanisms do explain moderation eVects at all, or whether only one or two of the processes is neces- sary for interactions to emerge. Although our study was fairly comprehensive in its coverage of multiple justice dimensions and its inclusion of several personality traits, some gaps in our coverage highlight other areas for future research. For example, the “belief in a just world” may be relevant to the should counterfactual and to the mechanisms in Fig. 1. It may be that individuals with strong just world beliefs attend more to justice because they, like moral individuals, are more concerned with fairness in general. However, it may also be that individuals with strong just world beliefs attend less to issues of fairness because they believe that things will “work out” in the end. Future research should also explore personality mod- erators in conjunction with the other sub-facet of interac- tional justice: informational justice. We did not include informational justice in the present study for both practi- cal and conceptual reasons. Practically speaking, includ- ing informational justice would have doubled the number of experimental conditions in an already complex study. Conceptually, we felt that some of our personality traits were more relevant to interpersonal justice, given that it is morally charged and holds special relevance to the integ- rity and benevolence forms of trustworthiness (Folger, 2001; Mayer et al., 1995). However, informational justice is germane to the could and should portions of fairness theory (Folger & Cropanzano, 2001; Shaw, Wild, & Colquitt, 2003) and its eVects could be moderated by traits that capture the likelihood of asking “why?” ques- tions (e.g., curiosity, need for cognition). Future research should also explore personality mod- erators of the two-way justice interactions often observed in the justice literature. Skarlicki et al.’s (1999) results showed that neuroticism and agreeableness mod- erated the interaction between distributive and interac- tional justice, while Hagedoorn et al.’s (2002) showed that just world beliefs moderated the interaction between distributive and procedural justice. Such work allows justice scholars to assess the generalizability of such interactions across personality types. It may be that more complex interactions could help explain some of the unexpected patterns in our two-way results. For example, some of the interactions were symmetric in nature, with fair treatment resulting in lower perfor- mance or more counterproductive behavior at certain personality patterns. Although such patterns are surpris- ing in the context of two-way interactions, they may make more sense in conjunction with higher-order inter- action patterns. Finally, it is important to point out that the interac- tions observed in our study could be interpreted in a diVerent way—that justice dimensions moderate the relationships between personality traits and counter- productive behavior and task performance. The signiW- cant product terms can be interpreted in either fashion, as can the plots represented in the Wgures. It may be that organizational justice can be used to clarify incon- sistent behavioral eVects within the trust propensity, risk aversion, or morality literatures. For example, unfair treatment may be relevant to the principle of trait activation (e.g., Tett & Gutterman, 2000), with fairness violations creating situational cues that enhance the likelihood of trait expression. To our knowledge, the justice dimensions have rarely been cast as moderators in past research, leaving open a poten- tially fruitful area for future theorizing and empirical study. References Adams, J. S. (1965). Inequity in social exchange. In L. Berkowitz (Ed.), Advances in experimental social psychology (Vol. 2, pp. 267–299). New York: Academic Press. Bies, R. J., & Moag, J. F. (1986). Interactional justice: Communication criteria of fairness. In R. J. Lewicki, B. H. Sheppard, & M. H. Bazer- man (Eds.), Research on negotiations in organizations (Vol. 1, pp. 43–55). Greenwich, CT: JAI Press. Bies, R. J., & Tripp, T. M. (1995). Beyond distrust: “Getting even” and the need for revenge. In R. M. Kramer & T. R. Tyler (Eds.), Trust in organizations: Frontiers of theory and research (pp. 246–260). Thou- sand Oaks, CA: Sage. Blau, P. (1964). Exchange and power in social life. New York: Wiley. Brockner, J., Heuer, L., Siegel, P. A., Wiesenfeld, B., Martin, C., Grover, S., et al. (1998). The moderating eVect of self-esteem in reaction to voice: Converging evidence from Wve studies. Journal of Personality and Social Psychology, 75, 394–407. Brockner, J., Tyler, T. R., & Cooper-Schneider, R. (1992). The inXuence of prior commitment to an institution on reactions to perceived unfairness: The higher they are, the harder they fall. Administrative Science Quarterly, 37, 241–261. 126 J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 Cable, D. M., & Judge, T. A. (1994). Pay preferences and job search decisions: A person-organization Wt perspective. Personnel Psychol- ogy, 47, 317–348. Cohen, J., Cohen, P., West, S. G., & Aiken, L. S. (2003). Applied multiple regression/correlation analysis for the behavioral sciences. Mahwah, NJ: Erlbaum. Cohen-Charash, Y., & Spector, P. E. (2001). The role of justice in orga- nizations: A meta-analysis. Organizational Behavior and Human Decision Processes, 86, 278–321. Colquitt, J. A. (2001). On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology, 86, 386–400. Colquitt, J. A., Conlon, D. E., Wesson, M. J., Porter, C., & Ng, K. Y. (2001). Justice at the millennium: A meta-analytic review of 25 years of organizational justice research. Journal of Applied Psychol- ogy, 86, 425–445. Colquitt, J. A., Greenberg, J., & Zapata-Phelan, C. P. (2005). What is organizational justice?: A historical overview. In J. Greenberg & J. A. Colquitt (Eds.), The handbook of organizational justice (pp. 3– 56). Mahwah, NJ: Erlbaum. Costa, P. T., Jr., & McCrae, R. R. (1992). Revised NEO Personality Inventory (NEO-PI-R) and NEO Five-Factor Inventory (NEO- FFI) professional manual. Odessa, FL: Psychological Assessment Resources. Cropanzano, R., Byrne, Z. S., Bobocel, D. R., & Rupp, D. E. (2001). Moral virtues, fairness heuristics, social entities, and other denizens of organizational justice. Journal of Vocational Behavior, 58, 164–209. de Raad, B., Hendriks, A. J., & Hofstee, W. K. (1992). Towards a reWned structure of personality traits. European Journal of Person- ality, 6, 301–319. Eisenberger, R., Cotterell, N., & Marvel, J. (1987). Reciprocation ideol- ogy. Journal of Personality and Social Psychology, 53, 743–750. Folger, R. (1998). Fairness as a moral virtue. In M. Schminke (Ed.), Managerial ethics: Morally managing people and processes (pp. 13– 34). Mahwah, NJ: Erlbaum. Folger, R. (2001). Fairness as deonance. In S. W. Gilliland, D. D. Steiner, & D. P. Skarlicki (Eds.), Theoretical and cultural perspec- tives on organizational justice (pp. 3–34). Greenwich, CT: Informa- tion Age Publishing. Folger, R., & Cropanzano, R. (2001). Fairness theory: Justice as accountability. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 89–118). Stanford, CA: Stanford Uni- versity Press. Folger, R., Cropanzano, R., & Goldman, B. (2005). What is the rela- tionship between justice and morality. In J. Greenberg & J. A. Col- quitt (Eds.), Handbook of organizational justice (pp. 215–245). Mahwah, NJ: Erlbaum. Goldberg, L. R. (1990). An alternative “description of personality”: The Big-Five factor structure. Journal of Personality and Social Psychology, 59, 1216–1229. Greenberg, J. (1990). Employee theft as a reaction to underpayment nequity: The hidden cost of pay cuts. Journal of Applied Psychol- ogy, 75, 561–568. Greenberg, J. (1993a). The social side of fairness: Interpersonal and informational classes of organizational justice. In R. Cropanzano (Ed.), Justice in the workplace: Approaching fairness in human resource management (pp. 79–103). Hillsdale, NJ: Erlbaum. Greenberg, J. (1993b). Stealing in the name of justice: Informational and interpersonal moderators of theft reactions to underpayment inequity. Organizational Behavior and Human Decision Processes, 54, 81–103. Greenberg, J. (2002). Who stole the money, and when? Individual and situational determinants of employee theft. Organizational Behavior and Human Decision Processes, 89, 985–1003. Hagedoorn, M., Buunk, B. P., & van de Vliert, E. (2002). Do just world believers process unfair authoritative decisions diVerently? Applied Psychology: An International Review, 51, 126–145. Harrison, D. A., McLaughlin, M. E., & Coalter, T. M. (1996). Context, cognition, and common method variance: Psychometric and verbal protocol evidence. Organizational Behavior and Human Decision Processes, 68, 246–261. Heuer, L., Blumenthal, E., Douglas, A., & Weinblatt, T. (1999). A deserv- ingness approach to respect as a relationally based fairness judgment. Personality and Social Psychology Bulletin, 25, 1279–1292. Hofstee, W. K., de Raad, B., & Goldberg, L. R. (1992). Integration of the Big Five and circumplex approaches to trait structure. Journal of Personality and Social Psychology, 63, 146–163. Hogan, J., & Roberts, B. W. (1996). Issues and non-issues in the Wdelity-bandwidth debate. Journal of Organizational Behavior, 17, 627–637. Homans, G. C. (1961). Social behaviour: Its elementary forms. London: Routledge and Kegan Paul. Huseman, R. C., HatWeld, J. D., & Miles, E. W. (1987). A new perspec- tive on equity theory: The Equity Sensitivity construct. Academy of Management Review, 12, 222–234. International Personality Item Pool (2001). A scientiWc collabora- tory for the development of advanced measures of personality traits and other individual diVerences (http://ipip.ori.org/). Internet Web Site. John, O. P., Donahue, E. M., & Kentle, R. L. (1991). The Big FiveInven- tory—Versions 4a and 54. Berkeley, CA: University of California, Berkeley, Institute of Personality and Social Research. Joy, V. L., & Witt, L. A. (1992). Delay of gratiWcation as a moderator of the procedural justice-distributive justice relationship. Group and Organization Management, 17, 297–308. Judge, T. A., & Larsen, R. J. (2001). Dispositional aVect and job satis- faction: A review and theoretical extension. Organizational Behav- ior and Human Decision Processes, 86, 67–98. Kanfer, R. (1991). Motivation theory and industrial and organiza- tional psychology. In M. D. Dunnette & L. M. Hough (Eds.), Hand- book of industrial and organizational psychology (Vol. 1, pp. 75– 170). Palo Alto, CA: Consulting Psychologists Press. King, W. C., & Miles, E. W. (1994). The measurement of equity sensi- tivity. Journal of Occupational and Organizational Psychology, 67, 133–142. King, W. C., Miles, E. W., & Day, D. D. (1993). A test and reWnement of the equity sensitivity construct. Journal of Organizational Behav- ior, 14, 301–317. Kohlberg, L. (1984). The psychology of moral development. San Fran- cisco, CA: Harper and Row. Konovsky, M. A., & Cropanzano, R. (1991). Perceived fairness of employee drug testing as a predictor of employee attitudes and job performance. Journal of Applied Psychology, 76, 698–707. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. Ger- gen, M. Greenberg, & R. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27–55). New York: Plenum Press. Lind, E. A. (2001). Fairness heuristic theory: Justice judgments as piv- otal cognitions in organizational relations. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 56–88). Stanford, CA: Stanford University Press. Lind, E. A., & Van den Bos, K. (2002). When fairness works: Toward a general theory of uncertainty management. In B. M. Staw & R. M. Kramer (Eds.), Research in organizational behavior (Vol. 24, pp. 181–223). Boston, MA: Elsevier. Maehr, M. L., & Videbeck, R. (1968). Predisposition to risk and persis- tence under varying reinforcement-success schedules. Journal of Personality and Social Psychology, 9, 96–100. Major, B., & Deaux, K. (1982). Individual diVerences in justice behav- ior. In J. Greenberg & R. L. Cohen (Eds.), Equity and justice in social behavior (pp. 43–76). New York: Academic Press. Mayer, R. C., Davis, J. H., & Schoorman, F. D. (1995). An integrative model of organizational trust. Academy of Management Review, 20, 709–734. http://ipip.ori.org/ http://ipip.ori.org/ J.A. Colquitt et al. / Organizational Behavior and Human Decision Processes 100 (2006) 110–127 127 Ones, D. S. (1994). The construct validity of integrity tests. Unpublished doctoral dissertation, University of Iowa. Perdue, B. C., & Summers, J. O. (1986). Checking the success of manip- ulations in marketing experiments. Journal of Marketing Research, 23, 317–326. Pizarro, D. A., Uhlmann, E., & Bloom, P. (2003). Causal deviance and the attribution of moral responsibility. Journal of Experimental Social Psychology, 39, 653–660. Rest, J., Narvaez, D., Thoma, S. J., & Bebeau, M. J. (1999). DIT-2: Devising and testing a new instrument of moral judgment. Journal of Educational Psychology, 91, 644–659. Saucier, G., & Goldberg, L. R. (1996). Evidence for the Big Five in analyses of familiar English personality adjectives. European Jour- nal of Personality, 10, 61–77. Schmitt, M. J., & Dorfel, M. (1999). Procedural injustice at work, jus- tice sensitivity, job satisfaction and psychosomatic well-being. European Journal of Social Psychology, 29, 443–453. Schmitt, M. J., & Maes, J. (2000). Scales for measuring justice sensitivity from three perspectives. Unpublished manuscript, University of Trier, Germany. Schmitt, M. J., Neumann, R., & Montada, L. (1995). Dispositional sen- sitivity to befallen injustice. Social Justice Research, 8, 385–407. Schmitt, N., & Stults, D. M. (1985). Factors deWned by negatively keyed items: The result of careless respondents? Applied Psychological Measurement, 9, 367–373. Schneider, B. (1983). Interactional psychology and organizational behavior. In L. L. Cummings & B. M. Staw (Eds.), Research in orga- nizational behavior (Vol.5, pp. 1–31). Greenwich, CT: JAI Press. Shaw, J. C., Wild, R. E., & Colquitt, J. A. (2003). To justify or excuse?: A meta-analysis of the eVects of explanations. Journal of Applied Psychology, 88, 444–458. Skarlicki, D. P., Folger, R., & Tesluk, P. (1999). Personality as a moder- ator in the relationship between fairness and retaliation. Academy of Management Journal, 42, 100–108. Skarlicki, D. P., & Latham, G. P. (1996). Increasing citizenship behav- ior within a labor union: A test of organizational justice theory. Journal of Applied Psychology, 81, 161–169. Sweeney, P. D., & McFarlin, D. B. (1993). Workers’ evaluations of the “ends” and “means”: An examination of four models of distribu- tive and procedural justice. Organizational Behavior and Human Decision Processes, 55, 23–40. Sweeney, P. D., McFarlin, D. B., & Cotton, J. L. (1991). Locus of con- trol as a moderator of the relationship between perceived inXuence and procedural justice. Human Relations, 44, 333–342. Tett, R. P., & Gutterman, H. A. (2000). Situation trait relevance, trait expression, and cross-situational consistency: Testing a principle of trait activation. Journal of Research in Personality, 34, 397–423. Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hillsdale, NJ: Erlbaum. Turillo, C. J., Folger, R., Lavelle, J. J., Umphress, E. E., & Gee, J. O. (2002). Is virtue its own reward? Self-sacriWcial decisions for the sake of fairness. Organizational Behavior and Human Decision Pro- cesses, 89, 839–865. Tyler, T. R., & Lind, E. A. (1992). A relational model of authority in groups. In M. P. Zanna (Ed.), Advances in experimental social psy- chology (Vol. 25, pp. 115–191). San Diego, CA: Academic Press. Van den Bos, K. (2001a). Fairness heuristic theory: Assessing the infor- mation to which people are reacting has a pivotal role in under- standing organizational justice. In S. Gilliland, D. Steiner, & D. Skarlicki (Eds.), Theoretical and cultural perspectives on organiza- tional justice (pp. 63–84). Greenwich, CT: Information Age Publish- ing. Van den Bos, K. (2001b). Uncertainty management: The inXuence of uncertainty salience on reactions to perceived procedural fairness. Journal of Personality and Social Psychology, 80, 931–941. Van den Bos, K., Bruins, J., Wilke, H. A. M., & Dronkert, E. (1999). Sometimes unfair procedures have nice aspects: On the psychology of the fair process eVect. Journal of Personality and Social Psychol- ogy, 77, 324–336. Van den Bos, K., & Lind, E. A. (2002). Uncertainty management by means of fairness judgments. In M. P. Zanna (Ed.), Advances in experimental social psychology (Vol. 34, pp. 1–60). Boston, MA: Elsevier. Van den Bos, K., Maas, M., Waldring, I. E., & Semin, G. R. (2003). Toward understanding the psychology of reactions to perceived fairness: The role of aVect intensity. Social Justice Research, 16, 151–168. Van den Bos, K., Vermunt, R., & Wilke, H. A. M. (1996). The consis- tency rule and the voice eVect: The inXuence of expectations on procedural fairness judgments and performance. European Journal of Social Psychology, 26, 411–428. Van den Bos, K., Wilke, H. A. M., & Lind, E. A. (1998a). When do we need procedural fairness? The role of trust in authority. Journal of Personality and Social Psychology, 75, 1449–1458. Van den Bos, K., Wilke, H. A. M., Lind, E. A., & Vermunt, R. (1998b). Evaluating outcomes by means of the fair process eVect: Evidence for diVerent processes in fairness and satisfaction judgments. Jour- nal of Personality and Social Psychology, 74, 1493–1503. Walker, L. J. (2002). The model and the measure: An appraisal of the Minnesota approach to moral development. Journal of Moral Edu- cation, 31, 353–367. Witt, L. A., Kacmar, K. M., & Andrews, M. C. (2001). The interac- tive eVects of procedural justice and exchange ideology on supervisor-rated commitment. Journal of Organizational Behavior, 22, 505–515. Zuckerman, M., & Reis, H. T. (1978). Comparison of three models for predicting altruistic behavior. Journal of Personality and Social Psychology, 36, 498–510. Justice and personality: Using integrative theories to derive moderators of justice effects Past research on moderation of justice effects Distributive justice research Procedural justice research Interactional justice research Applying integrative justice theories to personality moderators of justice effects A brief review of integrative justice theories Fairness heuristic theory Uncertainty management theory Fairness theory Which traits worthy of study can be derived from the integrative theories? Trust propensity Risk aversion Morality Alternative approaches to moderation of justice effects Method Sample Procedure Integrative theory traits Trust propensity Risk aversion Trait morality Confirmatory factor analysis Alternative moderators Equity sensitivity Sensitivity to Befallen injustice Big Five dimensions Outcome measures Task performance Counterproductive behavior Manipulation checks Results Manipulation checks Results for integrative theory traits Results for alternative approaches to moderation of justice effects Discussion Practical implications Limitations Suggestions for future research References 
work_k5cc45hvovgfjllvpdgzghoh7y	----	西南交通大学学报 第 55 卷 第 4 期 2020 年 8 月 JOURNAL OF SOUTHWEST JIAOTONG UNIVERSITY Vol. 55 No. 4 Aug. 2020 ISSN: 0258-2724 DOI：10.35741/issn.0258-2724.55.4.8 Research article Social Sciences LEADER–MEMBER EXCHANGE IN MEDIATING INTERPERSONAL JUSTICE AND INFORMATIONAL JUSTICE CLIMATE TOWARD COUNTERPRODUCTIVE WORK BEHAVIOR 调解人际正义和信息正义的领导者-成员之间的交流，以实现反 生产性工作 Yuni Siswanti a, * , Heru Kurnianto Tjahjono b , Arif Hartono c , Wisnu Prajogo d a Department of Management, Faculty of Economics and Business, Universitas Pembangunan Nasional “Veteran” Yogyakarta Yogyakarta, Indonesia, yuni.siswanti@upnyk.ac.id b Department of Management, Faculty of Economics and Business, Universitas Muhammadiyah Yogyakarta Yogyakarta, Indonesia c Department of Management, Faculty of Business and Economics, Universitas Islam Indonesia Yogyakarta, Indonesia d Department of Management, STIE YKPN Yogyakarta Yogyakarta, Indonesia Received: April 25, 2020 ▪ Review: June 21, 2020 ▪ Accepted: July 6, 2020 This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0) Abstract This cross-level study (individual level) examines the influence of interpersonal justice climate and informational justice climate (unit level) on counterproductive work behavior (individual level). The study also examines the role of leader–member exchange (individual level) in mediating the influence of these climates on counterproductive work behavior. The study was carried out by distributing a questionnaire to non-civil-servant lecturers in three new state universities in Indonesia. Of the questionnaires distributed, 399 were returned completely filled out and were then processed using hierarchical linear modeling. Hierarchical linear modeling is the appropriate analysis tool for examining cross-level models in which there is variance at both the individual level and the group level, with individual-level outcomes. The hierarchical linear modeling method still considers variance both within and between units and the role of both individuals and units simultaneously. The instruments were tested using confirmatory factor analysis, and reliability tests were carried out by looking at the coefficient of Cronbach’s alpha. The results of the hypothesis test show that while interpersonal and informational justice climates do not have an influence on counterproductive work behavior (H1 and H2 not accepted), they do have a significant influence on leader–member exchange (H3 and H4 accepted), which itself has a positive influence on counterproductive work behavior (H5 accepted). The test results for H6 and H7 show leader–member exchange fully mediates the influence of interpersonal and informational justice climate on counterproductive work behavior. The results of this study encourage further discussion and mailto:yuni.siswanti@upnyk.ac.id http://creativecommons.org/licenses/by/4.0 Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 2 open opportunities for cross-level research with different variables and objects. Keywords: Interpersonal Justice Climate, Informational Justice Climate, Counterproductive Work Behavior, Leader-Member Exchange, Cross-Level Research 摘要 这项跨层次的研究（个人）考察了人际公正气氛和信息公正气氛（单位层次）对适得其反的 工作行为（个人层次）的影响。该研究还研究了领导者-成员交流（个人）在调解这些气候对适得 其反的工作行为的影响中的作用。这项研究是通过向印度尼西亚三所新州立大学的非公务员讲师 分发问卷调查表进行的。在分发的问卷中，有 399 份完全填满，然后使用分层线性建模进行处理 。分层线性建模是检查跨级别模型的适当分析工具，在跨级别模型中，个人级别和组级别都有差 异，而个人级别的结果也是如此。分层线性建模方法仍然考虑单位内部和单位之间的差异以及个 人和单位的角色。仪器通过验证性因子分析进行了测试，可靠性测试通过查看克伦巴赫α系数进 行。假设检验的结果表明，尽管人际关系和信息正义的气氛对适得其反的工作行为没有影响（H1 和 H2 不被接受），但它们确实对领导成员之间的交流有重大影响（H3 和 H4 被接受），本身会对 适得其反的工作行为产生积极影响（接受 H5）。H6 和 H7 的测试结果表明，领导成员之间的交流 充分调解了人际和信息正义氛围对适得其反的工作行为的影响。这项研究的结果鼓励进行进一步 的讨论，并为具有不同变量和对象的跨层次研究提供机会。 关键词: 人际公正气氛，信息公正气氛，适得其反的工作行为，领导成员交流，跨层次研究 I. INTRODUCTION Counterproductive work behavior (CWB) has become an increasingly important subject of study because it can be incredibly costly to overcome. Previous researchers have used various terms to describe CWB, such as deviant work behavior [1], [2], aggressive behavior [3], [4], [5], antisocial behavior [6], and counterproductive work behavior [7], [8]. All these terms have the same meaning—negative work behavior by an employee that can harm or endanger the organization and its members. The study conducted by [5], [9], [10] concluded CWB has a negative impact on both the employee and the organization. Therefore, studying the factors that cause CWB is critical to reduce the costs borne by the organization [1], [11]. One of the factors triggering the emergence of CWB is the contextual factor, which involves several surrounding variables that have the potential to be involved in the process of dishonesty in decision-making [12]. These factors include labor force, economic disparity, opportunities to thrive, and organizational justice. [13], [14], [15] stated that the individual approach fails to include social context when involved in the formation of perceptions of justice. In a unit or group, each member interacts with each other, observes behavior with one another, and is bound in understanding to build shared perceptions to evaluate fairness applied within the organization [16], [17], [18]. Consistent with this statement, today’s research suggests to view justice as a distinct property, which can be formed on the basis of interaction between each member in the same unit/group. This formed perception is called justice climate. [16] are the researchers who first introduced the term. According to [16], justice climate is group/unit level cognition about how a working group as a whole is treated. An understanding of justice climate and its impact on employee behavior was further investigated by [19], [20], [21]. II. LITERATURE REVIEW A. The Relationship between Interpersonal Justice Climate and Counterproductive Work Behavior 1) Basic Theory of Interpersonal Justice Climate Researchers of organizational behavior, particularly regarding organizational justice, have identified four types of organizational justice: distributive justice, procedural justice, interpersonal justice, and informational justice [22]. Interactional justice according to [23], [24] is divided into two forms of justice, interpersonal justice and informational justice. 3 Interpersonal justice is a perception of justice felt by a group of workers regarding interpersonal treatment that is given during the implementation of procedures that existed before and results. Interpersonal justice considers the perception of a group of personnel regarding the justice on the issue of how they are treated. Impolite and unfair treatment by leaders causes a group of members (work teams) to experience a decrease in motivation and job satisfaction, as well as other negative behaviors [77]. 2) Counterproductive Work Behavior (CWB) Theory According to [25], CWB is work behavior that interferes with the organization or members of the organization. [26] grouped CWB into eleven categories: (1) theft and behavior related to it; (2) damage to organization’s belongings; (3) misuse of information; (4) abuse of time and resources; (5) dangerous behavior; (6) low attendance; (7) low quality of work; (8) use of alcohol; (9) drug use; (10) committing inappropriate verbal actions; and (11) carrying out inappropriate physical actions. Interpersonal and informational justice have a significant negative influence on CWB that aimed at organizations and interpersonal/other individuals [27], [28]. This means that interpersonal and informational justice will reduce the CWB. The results from previous studies [15], [20], [29], [30] showed that interactional justice climate (interpersonal and informational justice) that is formed in social exchange relationships will have a significant effect on employee attitudes and behavior (job satisfaction, organizational commitment, work stress, OCB, deviant behavior, and CWB). B. The Relationship between Informational Justice Climate and Counterproductive Work Behavior 1) Basic Theory of Informational Justice Climate According to [23], [24], an informational justice climate is when a group’s perception of information is used as a basis for decision making. Informational justice motivates the feelings of respect by others through clear information-giving mechanisms within the organization. [17] stated that both procedural justice and interactional justice (interpersonal and informational) can predict employee attitudes and the desires of employees, including counterproductive work behavior (CWB). Previous research [24], [31] stated that interactional justice is the most powerful predictor of predicting CWB compared to the other two dimensions of organizational justice. The statement of the previous studies was strengthened by [27], [28] that low perception of interactional justice may cause CWV aimed at both the organizations and at other individuals. C. Interpersonal Justice Climate-Leader- Member Exchange (LMX)-CWB 1) Basic Theory of Leader-Member Exchange The basic principle of LMX theory is that leaders form a unique relationship with the members [32], [33], [85]. High-quality LMX relationships between the leader and member are characterized by emotional exchanges based on mutual trust and respect, while low-quality LMX relationships have economic exchange characteristics [32], [33], [34]. According to [35], [36], LMX has two dimensions. The first dimension is the approach to build good relations with employees, which consists of loyalty, support, and trust. The second dimension that becomes the basis of LMX is coupling, which focuses on the attitudes of leaders towards members that include addressing, influence, allocation, freedom of expression, and innovation. These dimensions form the LMX theory, as one of the leadership theory to measure the relationship between leaders and members in an organization [37]. [38] found a positive and significant relationship of the dimensions of organizational justice (procedural, distributive, interpersonal, and informational justice) with LMX. In addition, [39] stated that procedural, distributive, and interactional justice has a strong and significant relationship with the quality of LMX. The results from the study of [40] showed that interpersonal justice has a significant influence on LMX. The high quality of LMX reduces the CWB [41], [42], [43]. D. Informational Justice Climate -Leader- Member Exchange (LMX)-CWB The study from [28] found that LMX fully mediates the relationship between interpersonal and informational justice with counterproductive work behavior (both towards supervisors and towards the organization). E. Hypothesis H1: Interpersonal Justice Climate has a negative influence on Counterproductive Work Behavior H2: Informational Justice Climate has a negative influence on Counterproductive Work Behavior H3: Interpersonal Justice Climate has a Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 4 positive influence on LMX H4: Informational Justice Climate has a positive influence on LMX H5: LMX has a negative influence on Counterproductive Work Behavior H6: Leader Member Exchange (LMX) mediates the influence of Interpersonal Justice Climate towards Counterproductive Work Behavior H7: Leader Member Exchange (LMX) mediates the influence of Informational Justice Climate towards Counterproductive Work Behavior. Figure 1. Research model III. RESEARCH METHOD A. Population and Sample The population of this study is non-civil servant lecturer from 3 new state universities (PTNB) in Indonesia. The number of population and sample of this study can be seen on Table 1. The sampling technique is done using Slovin formula. From the total of 563 people, the minimum sample is 233 people. Table 1. Population and sample of study No. University Population Number of study program (group) Sample 1. PTNB 1 187 16 143 2. PTNB 2 167 16 100 3. PTNB 3 209 23 156 Total 563 73 399 B. Measurement To measure interpersonal and informational justice climate, this study uses the instrument developed by [44] which consists of 4 items for each variable. CWB is measured in individual level with the instrument developed by [26], which consists of 27 items. All instruments are measured using 6 point scale Adjusted Likert Scale (scale 1 = strongly disagree; scale 6 = strongly agree). C. Instrument Test The instruments are examined with validity test using Confirmatory Factor Analysis and reliability test using Cronbach’s Alpha. The limit of reliability test according to [45] is α 0.7; and if α = 0.6, it can be accepted in exploratory research. D. Hypothesis Test Method The hypothesis test is carried out using Hierarchical Linear Modeling (HLM) because this study examine variables with different level of analysis (cross-level), namely unit level (interpersonal and informational justice climate) and individual level (CWB) (2-1-1). This model is developed by [46]. HLM is the appropriate analysis tool to examine cross-level model, in which there is variance at the individual level and group level with individual level outcomes. The HLM method still considers variance within units and variance between units. This method still considers the role of both individuals and units at the same time. IV. RESULT A. Respondents’ Characteristics The results of the descriptive test in Table 2 shows that most respondents are on the productive age by 46-50 years old (27.3%); female (56.6%); have master degree (80.5%); and have been working for 21-25 years (30.1%). Table 2. Respondents’ characteristics Profile Category Number Percentage Age 26 – 30 years old 12 3.0 31 – 35 years old 76 19.0 36 – 40 years old 62 15.5 41 – 45 years old 84 21.1 46 – 50 years old 109 27.3 51 – 55 years old 35 8.8 56 – 60 years old 18 4.5 5  60 years old 3 .8 Gender Male 173 43.4 Female 226 56.6 Education Master Degree 321 80.5 Doctoral Degree 78 19.5 Working time 1-5 years 31 7.8 6-10 years 71 17.8 11-15 years 70 17.5 16-20 years 72 18.0 21-25 years 120 30.1 26-30 years 28 7.0 > 30 years 7 1.8 Total 399 100.0 B. Validity and Reliability Test Results For Interpersonal Justice Climate (4 items), 2 items are valid because their value is above 0.6 (loading factor > = 0.6). For Distributive Justice Climate (5 items), all items are valid. The test results for confirmatory factor analysis (CFA) for CWB demonstrate that from 21 total items, 15 items are valid and 6 items are invalid. Thus, these 6 items are not included in the subsequent data processing [47]. The reliability test results indicated that three research variables are reliable, having a Cronbach’s Alpha coefficient of > 0.6. Table 3. Descriptive statistic and correlation No. Individual level variable Average Perception of average score Standard deviation 1 2 3 1. Leader-member exchange (LMX) 4.3743 High .84452 -0,310** 2. Counterproductive work behavior (CWB) 1.5646 Lowest .46672 Unit level variable 1. Interpersonal justice climate 4.9586 High .85738 - 2. Informational justice climate 4.5213 High .92368 Note: **p < 0,01; *p < 0,05 C. Unit Level Data Testing The two unit level variables in this study are the procedural justice climate and the distributive justice climate. The data collected is based on individual perception, so a justification for aggregation is needed to make these unit-level variables. When the aggregation is conducted and results do not meet the minimum score, the group or work unit is deemed not suitable to be used as a study sample. The stages of aggregation of individual data into group data are as follows: a) The first step of data aggregation refers to the value of the Inter-Rater Agreement (IRA). The Inter-Rater Agreement is an index of approval degrees in a separate work unit. IRA calculation is applied to each work group for each variable. IRA testing has a minimum score (cutoff) that must be met. All work units must have a minimum score > 0.70. 55 work groups or units have predetermined score standards (cutoff > 0.70), so they meet the requirements to be included in the analysis testing process. b) Inter-Class Correlation (ICC) (1) is calculated for each justice climate (procedural and distributive). The score generated from the ICC test (1) must be ≥ 0.05; that is, the variance between groups is greater than the variants within the group. The ICC value (1) represents sufficient variance between groups. c) ICC score (2) must be > 0.60, which is the ICC standard score (2) [48]. If standard scores are met the working group or unit, there are average eligibility score given by each working group member to represent score at the group level. The estimation result shows that ICC score (2) meets the standard value of 0.60 for each justice climate. Table 4. Unit level data testing result Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 6 No. Variable rwg a (average) rwg (median) ICC b (1) ICC (2) 1. Interactional justice climate 0,8160 0,8092 0,582 0,736 2. Informational justice climate 0,8142 0,8000 0,802 0,961 a Interrater agreement b Intraclass correlation coefficient d) Before testing the hypothesis with HLM, the unconstrained (null) dependent variable model must be tested to determine the variance of the dependent variable between study groups (between-group variance) as a condition that must be met before cross-level testing. The null model testing is conducted on variables that are being the consequences of interpersonal justice climate, informational justice climate, namely CWB. Table 5 shows the unconstrained model result of the two output variables. The test result shows a significant chi-square value for CWB ( ؘ χ2 = 73.51841; p < 0.05). These results indicate that there are differences in outcome variables between work units, so that cross-level hypothesis testing using HLM analysis tools can be conducted. Table 5. Summary of unconstrained testing results (null model) Variable Chi-square (χ2) σ2 dan τ ICC = τ/(τ + σ2) Description Leader-member exchange (LMX) 101.82383 0,63851 and 0,00825 0.012756 The result of the unconstrained model shows a significant chi-square and ICC, i.e. there are differences in variance between work units/ study programs on each dependent variable, so that HLM analysis can be proceed. Counterproductive work behavior (CWB) 73.51841 0,20973 and 0,01142 0.051639 D. Hypothesis Test Hypothesis test consists of: (1) testing the cross-level influence of interpersonal justice climate towards CWB, and (2) informational justice climate towards CWB. The test for the direct influence of unit level variable towards individual variable in HLM is known as intercepts-as-outcomes model. The results of the test of H1, H2, H3, H4, and H5 can be seen in Table 6. Table 6. Summary of the direct test results of unit level variables with individual level output variable Variable CWB H LMX H Γ S.E P-value γ S.E P-value Unit level Interpersonal justice climate -0.042 0.069 0.546 H1 0.557*** 0.136 <0.001 H3 Informational justice climate -0.052 0.053 0.331 H2 0.544*** 0.087 <0.001 H4 Individual level LMX -0.174*** 0.051 <0.001 H5 Note: ***p < 0,001; **p < 0.05 The test result of the cross-level influence of interpersonal justice climate towards CWB shows no significant influence (γ = -0.042; SE = 0.069; p < 0.546) (H1 is not supported). The test result of the cross-level influence of informational justice climate towards CWB shows no significant influence (γ = -0.052; SE = 0.053; p < 0.331) (H1 is not supported). The test result of the cross-level influence of interpersonal justice climate towards LMX shows significant positive influence (γ = 0.557; SE = 0.136; p < 0.001) (H3 is supported). The test result of the cross-level influence of informational justice climate towards LMX shows significant positive influence (γ = 0.544; SE = 0.087; p < 0.001) (H4 is supported). The test of the influence of LMX on CWB shows negative significant influence (γ = -0.174; SE = 0.051; p < 0.001) (H5 is supported). The steps for H6 testing can be seen in Table 7. 7 Table 7. Steps for Hypothesis 6 testing Step Direct influence (γ) Influence after mediation (γ) Note Step 1: The influence of IKIT on CWB γ = -0.042 p < 0.546 Not significant Step 2: The influence of IKIT on LMX γ = 0.557** p < 0.001 Significant Step 3: The influence of LMX on CWB γ = -0.174 p < 0.001 Significant Step 4: The influence of IKIT and LMX on CWB γ = - 0.186 p < 0.001 Significant The first step is testing the influence of interpersonal justice climate on CWB. This step is H1 testing and the result is not significant (γ = -0.042; SE = 0.069; p < 0.546). The second step is testing the influence of interpersonal justice climate on LMX (H3), and the result is significantly positive (γ = 0.557; SE = 0.136; p < 0,001). The third step is testing the influence of LMX on CWB (H5) and the result is significantly negative (γ = -0.174; SE = 0.051; p < 0.001). The fourth step is testing interpersonal justice climate on CWB and including LMX as mediating variable, and the result is significantly negative ( γ = - 0.186; p < 0.001). Therefore, H6 is supported, which means that LMX fully mediates the influence of interpersonal justice climate on CWB (MacKinnon, 2008). As for the steps for H7 testing can be seen in Table 8. Table 8. Steps for Hypothesis 7 testing Steps Direct influence (γ) Influence after mediation (γ) Note Step 1: The influence of IKIF on CWB γ = 0.163 p < 0.331 Not significant Step 2: The influence of IKIF on LMX γ = 0.557*** p < 0.001 Significant Step 3: The influence of LMX on CWB γ = -0.174 p < 0.001 Significant Step 4: The influence of IKIF and LMX on CWB γ = -0.186 p < 0.001 Significant The first step is testing the influence of informational justice climate on CWB. This step is H2 testing and the result is not significant (γ = -0.052; SE = 0.053; p < 0.331). The second step is testing the influence of informational justice climate on LMX (H4), and the result is significantly positive (γ = 0.544; SE = 0.087; p < 0.001). The third step is testing the influence of LMX on CWB (H5) and the result is significantly negative (γ = -0.174; SE = 0.051; p < 0.001). The fourth step is testing informational justice climate on CWB and including LMX as mediating variable, and the result is significantly negative (γ = -0.186; p < 0.001). Therefore, H7 is supported, which means that LMX fully mediates the influence of informational justice climate on CWB [49]. V. DISCUSSION Although the results of this study do not support the research hypothesis, it supports other previous studies [50] that there is no significant influence of interpersonal and informational justice climate on CWB. The results of his study contradict the results from previous studies [15], [20], [29], [30], [51]. However, this result is relevant to the perspective of social exchange theory which uses rational assumption from economic science. According to this theory, in social relations, there are elements of reward, sacrifice (cost), and reciprocity that affect one another. This reciprocity can be in the form of good behavior (not counterproductive work behavior) for interpersonal justice that is perceived as a group. Researchers use social identity theory [52] which serves to strengthen the theory of social exchange. In this theory, cohesive group members can maintain a unity, and each group member should try to defend themselves to be part of their group. Social identity theory is used to explain that there are strong emotional ties, mutual evaluation, and close psychological relationships between members in cohesive groups [53]. In this cohesive group/work unit, positive interactions occur, so that they have a high level of trust and unity. Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 8 This mutual trust and togetherness is obtained from the social interaction of each group member/work unit, so that each member contributes to their coworkers and work groups [54] on positive behavior instead of negative behavior such as CWB. This result is quite reasonable since it is related to the theory of Attraction-Selection-Attrition (ASA) with its basic concept that individuals with similar characters will be attracted to, selected into, and retained in the same group. The ASA process raises homogeneity in organizations or groups/work units. The contribution of this theory is that interpersonal homogeneity tends to be formed in work group. The existence of homogeneity can lead to an agreement on the perception of justice climate [17], [30], [55], [56] which do not necessarily affect CWB directly. Other variables that might influence CWB from previous studies and the results of researchers’ interviews with respondents are: gender [57], [58]; personality [59]; self- awareness [60]; self-control [61]; emotional intelligence [62]; work condition, type of work, work partner, financial condition, work benefits [63], [64], [65]; social demography [66]; autonomy [67]; social support [68]; employee engagement [69]; individual characteristics [70]; stress level [71], [72], [73]; conflict [74]; organizational support [75]; emotion [68], [76]; self-efficacy [75]; self-esteem [78]; religiosity [79]; leadership [61], [80], [81]; and organizational culture [82]. The culture formed in the research object which was motivated by the founders/veterans formed a strong and collective adherence to the leader’s instructions. The test result of the cross-level influence of interpersonal justice climate on LMX shows a positive significant influence. This result supports previous studies [39], [50], [83], [84] which stated that procedural, distributive, and interactional justice has a positive significant relationship with LMX. According to [44], interpersonal justice shows the level of someone being treated well, respectfully, politely, and respected. The result of this study also support [86] who stated that interactional justice climate (interpersonal and informational) has a significant influence on LMX. In the perspective of social exchange theory [86], there is an element of reward for what has been obtained. Interpersonal justice climate that is perceived highly by the working groups will bring reward in the form of positive attitude towards the leader. This attitude can be in the form of ready to accept responsibility and/or ready to do a better job, as a form of increased quality of LMX, so that it leads to the in-group. The test result of the influence of LMX on CWB shows negative significant influence. This result supports previous studies [41], [42], [50], [87], [88], [89], [90], [91], which stated that in high quality LMX group, when leaders offer work that is broader in scope, responsibilities, communication, and support, members will respond with higher time, energy, responsibility, commitment, and reduce negative behavior as a return. The results of the data processing of the lecturers in the three new state universities showed a fairly high level of LMX, which means that the leader-member exchange relationship belongs to the in-group. According to [87], in high quality LMX group, when leaders offer work that is broader in scope, responsibilities, communication, and support, members will respond with higher time, energy, responsibility, and commitment as a return. This result is in accordance with the values embedded in these universities, especially the value of struggle. Struggle is the resilience in facing obstacles in the reality of life. The higher the resistance or resilience of leaders and members (through the process of LMX) in facing various challenges and obstacles of work in the organization, the lower the potential for doing things that harm the organization will be. The positive impact of the struggle in the LMX process thrive awareness of doing the best for the organization. The result of this study shows that LMX fully mediates the influence of interpersonal and informational justice climate on CWB. Collective perception about perceived interpersonal and informational justice will improve the quality of relationship between leaders and members. Respect and attention from leaders will raise the relationship between leaders and members to be based on trust and helping each other [92]. The treatment from leaders that respect their members has a direct influence on the decrease of counterproductive work behavior of the members [28], [41], [42], [50], [87], [89]. LMX in this study has a vital role since its existence can reduce counterproductive work behavior. VI. CONCLUSION The results of this study show that the interpersonal and informational justice climates do not have any influence on CWB, but both positively influence LMX, and LMX has a negative influence toward CWB. LMX fully mediates the influence of the interpersonal and informational justice climates toward CWB. The 9 results of this study deserve to be discussed further in future research, such as in a different scope and with an increase in the number of units, incorporating the moderating effects, or adding mediation chains to the research model. VII. LIMITATION 1. This study of the organizational justice climate (cross-level analysis) has been conducted in only three new state universities (PTNB) in Indonesia with a limited number of respondents, namely non-civil servant lecturers. Therefore, future research can be carried out in other state universities with both civil servant and non-civil servant lecturers as the respondents, as well as the staff. It can also be carried out in a service company or a manufacturing company, considering that the organizational justice climate is always interesting to study because of its impact on the positive and negative work behavior of employees. 2. The data in this study is gathered using a cross-sectional method. Future research will be much improved if it is done as a longitudinal study over a period of time, so that the consistency of respondents’ answers on the same variables and instruments can be known. REFERENCES [1] ROBINSON, S.L. and BENNET, R.J. (1995) A typology of deviant workplace behaviors: a multidimensional scaling study. Academy of Management Journal, 38 (20), pp. 555-572. [2] O’NEILL, T.A., LEWIS, R.J., and CARSWELL, J.J. (2011) Employee personality, justice perceptions, and the prediction of workplace deviance. Personality and Individual Differences, 51 (5), pp. 595-600. [3] FOX, S. and SPECTOR, P.E. (1999) A model of work frustration-aggression. Journal of Organizational Behavior, 20 (6), pp. 915-931. [4] GREENBERG, J. and BARLING, J. (1999) Predicting employee aggression against coworkers, subordinates and supervisors: The roles of person behaviors and perceive workplace factors. Journal of Organizational Behavior, 20, pp. 897-913. [5] VIGODA, E. (2002) Stress-related aftermaths to workplace politics: the relationships among politics, job distress, and aggressive behavior in organizations. Journal of Organizational Behavior, 23 (5), pp. 571- 591. [6] VARDI, Y. and WIENER, Y. (1996) Misbehavior in organizations: A motivational framework. Organization Science, 7 (2), pp. 151-165. [7] FOX, S., SPECTOR, P.E., and MILES, D. (2001) Counterproductive work behavior (CWB) in response to job stressors and organizational justice: some mediator and moderator tests for autonomy and emotions. Journal of Vocational Behavior, 59, pp. 291-309. [8] KLOTZ, A.C. and BUCKLEY, M.R. (2013) A historical perspective of counterproductive work behavior targeting the organization. Journal of Management History, 19 (1), pp. 114-132. [9] LE BLANC, M.M. and KELLOWAY, E.K. (2002) Predictors and outcomes of workplace violence and aggression. Journal of Applied Psychology, 87 (30), pp. 444-453. [10] PENNEY, L.M. and SPECTOR, P.E. (2005) Job stress, incivility, and counterproductive work behavior (CWB): The moderation role of negative affectivity. Jornal of Organizational Behavior, 26, pp. 777-796. [11] BENNET, R.J. and ROBINSON, S.L. (2000) Development of a measure of workplace deviance. Journal of Applied Psychology, 85 (3), pp. 349-360. [12] MURPHY, K.R. (1993) Honesty in the Workplace. Pacific Grove, California: Brooks/Cole. [13] KIRKMAN, B.L., JONES, R.G., and SHAPIRO, D.L. (2000) Why do employees resist teams? Examining the “resistance barrier” to work team effectiveness. International Journal of Conflict Management, 11 (1), pp. 74-92. [14] PHILLIPS, J.M., DOUTHITT, E.A., and HYLAND, M.M. (2001) The role of justice in team member satisfaction with the leader and attachment to the team. Journal of Applied Psychology, 86 (2), 316. [15] MOSSHOLDER, K.W., BENNETT, N., KEMERY, E.R., and WESOLOWSKI, M.A. (1998) Relationships between bases of power and work reactions: The mediational Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 10 role of procedural justice. Journal of Management, 24 (4), pp. 533-552. [16] NAUMANN, S.E. and BENNETT, N. (2000) A case for procedural justice climate: Development and test of a multilevel model. Academy of Management Journal, 43 (5), pp. 881-889. [17] SIMONS, T. and ROBERSON, Q. (2003) Why managers should care about fairness: the effects of aggregate justice perceptions on organizational outcomes. Journal of Applied Psychology, 88 (3), 432. [18] LI, A. and CROPANZANO, R. (2009) Fairness at the group level: Justice climate and intraunit justice climate. Journal of Management, 35 (3), pp. 564-599. [19] EHRHART, M.G. (2004) Leadership and procedural justice climate as antecedents of unit-level organizational citizenship behavior. Personnel Psychology, 57 (1), pp. 61-94. [20] ROBERSON, Q.M. and COLQUITT, J.A. (2005) Shared and configural justice: A social network model of justice in teams. Academy of Management Review, 30 (3), pp. 595-607. [21] LAVELLE, J.J., RUPP, D.E., and BROCKNER, J. (2007) Taking a multifoci approach to the study of justice, social exchange, and citizenship behavior: The target similarity model. Journal of Management, 33 (6), pp. 841-866. [22] ZAPATA-PHELAN, C.P., COLQUITT, J.A., SCOTT, B.A., and LIVINGSTON, B. (2009) Procedural justice, interactional justice, and task performance: The mediating role of intrinsic motivation. Organizational Behavior and Human Decision Processes, 108 (1), pp. 93-105. [23] GREENBERG, J. (1993) Justice and organizational citizenship: A commentary on the state of the science. Employee Responsibilities and Rights Journal, 6 (3), pp. 249-256. [24] COLQUITT, J.A., CONLON, D.E., WESSON, M.J., PORTER, C.O., and NG, K.Y. (2001) Justice at the millennium: a meta-analytic review of 25 years of organizational justice research. Journal of Applied Psychology, 86 (3), pp. 425-445. [25] PENNEY, L.M. and SPECTOR, P.E. (2002) Narcissism and counterproductive work behavior: Do bigger egos mean bigger problems? International Journal of selection and Assessment, 10 (1-2), pp. 126-134. [26] GRUYS, M.L. and SACKETT, P.R. (2003) Investigating the dimensionality of counterproductive work behavior. International Journal of Selection and Assessment, 11 (1), pp. 30-42. [27] DEVONISH, D. and GREENIDGE, D. (2010) The effect of organizational justice on contextual performance, counterproductive work behaviors, and task performance: Investigating the moderating role of ability-based emotional intelligence. International Journal of Selection and Assessment, 18 (1), pp. 75-86. [28] AKREMI, A.E., VANDENBERGHE, C., and CAMERMAN, J. (2010) The role of justice and social exchange relationships in workplace deviance: Test of mediated model. Human Relations, 63 (11), pp. 1687-1717. [29] SPELL, C.S. and ARNOLD, T.J. (2007) A multi-level analysis of organizational justice climate, structure, and employee mental health. Journal of Management, 33 (5), pp. 724-751. [30] LIAO, H. and RUPP, D.E. (2005) The impact of justice climate and justice orientation on work outcomes: a cross-level multifoci framework. Journal of Applied Psychology, 90 (2), 242. [31] AQUINO, K., LEWIS, M.U., and BRADFIELD, M. (1999) Justice constructs, negative affectivity, and employee deviance: A proposed model and empirical test. Journal of Organizational Behavior, 20 (7), pp. 1073-1091. [32] GRAEN, G.B. and UHL-BIEN, M. (1995) Relationship-based approach to leadership: Development of leader-member exchange (LMX) theory of leadership over 25 years: Applying a multi-level multi- domain perspective. The Leadership Quarterly, 6, pp. 219-247. [33] LIDEN, R.C., SPARROWE, R.T., and WAYNE, S.J. (1997) Leader-member exchange theory: The past and potential for the future. Research in Personnel and Human Resources Management, 15, pp. 47- 120. [34] VAN BREUKELEN, W., VAN DER LEEDEN, R., WESSELIUS, W., and HOES, 11 M. (2012) Differential treatment within sports teams, leader–member (coach–player) exchange quality, team atmosphere, and team performance. Journal of Organizational Behavior, 33 (1), pp. 43-63. [35] GRAEN, G.B. and SCANDURA, T.A. (1987) Toward a psychology of dyadic organizing. Research in Organizational Behavior, 9, pp. 175-208. [36] TRUCKENBRODT, Y.B. (2001) An empirical assessment of the relationship between leader-member exchange and organizational commitment and organizational citizenship behavior. Doctoral thesis. [37] RASOULI, R. and HAGHTAALI, M. (2009) Impact of Leader-Member Exchange on Job Satisfaction in Tehran Social Security Branches. Turkish Public Administration Annual, pp. 32-35. [38] LEE, H., MURRMANN, S.K., MURRMANN, K.F., and KIM, K. (2010) Organizational justice as a mediator of the relationships between leader-member exchange and employees’ turnover intentions. Journal of Hospitality Marketing & Management, 19 (4), pp. 97-114. [39] BURTON, J.P., SABLYNSKI, C.J., and SEKIGUCHI, T. (2008) Linking justice, performance, and citizenship via leader– member exchange. Journal of Business and Psychology, 23 (1-2), pp. 51-61. [40] PICCOLO, R.F., BARDES, M., MAYER, D.M., and JUDGE, T.A. (2008) Does high quality leader–member exchange accentuate the effects of organizational justice? European Journal of Work and Organizational Psychology, 17 (2), pp. 273- 298. [41] ERDOGAN, B. and LIDEN, R.C. (2006) Collectivism as a moderator of responses to organizational justice: implications for leader-member exchange and ingratiation. Journal of Organizational Behavior, 27 (1), pp. 1-17. [42] VIDYARTHI, P.R., LIDEN, R.C., ANAND, S., ERDOGAN, B., and GHOSH, S. (2010) Where doI stand? Examining eteh effects of leader-member exchange social comparison on employee work behaviors. Journal of Applied Psychology, 95 (5), pp. 849-861. [43] SCHYNS, B., KROON, B., and MOORS, G. (2008) Follower characteristics and the perception of leader-member exchange. Journal of Managerial Psychology, 23 (7), pp. 772-788. [44] COLQUITT, J.A. (2001) On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology, 86 (3), pp. 386-400. [45] HAIR, J.F., BLACK, W.C., BABIN, B.J., ANDERSON, R.E., and TATHAM, R.L. (2006) Multivariate Data Analysis, Vol. 6. New Delhi: Pearson Education. [46] RAUDENBUSH, S.W. and BRYK, A.S. (2002) Hierarchical Linear Models: Applications and Data Analysis Methods. 2nd ed. Newbury Park, California: Sage. [47] SISWANTI, Y., TJAHJONO, H.K., HARTONO, A., and PRAJOGO, W. (2020) Organizational Justice Climate: Construct Measurement and Validation. Test Engineering and Management, 82, pp. 8574- 8590. [48] NEWMAN, D.A. and SIN, H.P. (2009) How do missing data bias estimates of within-group agreement? Sensitivity of SD WG, CVWG, rWG (J), rWG (J)*, and ICC to systematic nonresponse. Organizational Research Methods, 12 (1), pp. 113-147. [49] MACKINNON, D.P. and LUECKEN, L.J. (2008) How and for whom? Mediation and moderation in health psychology. Health Psychology, 27 (2S), pp. S99-S100. [50] COLQUITT, J.A., RODELL, J.B., ZAPATA, C.P., SCOTT, B.A., LONG, D.M., and CONLON, D.E. (2013) Justice at the millenium, a decade later: a meta analytic test of social exchange and affect-based perspectives. Journal of Applied Psychology, 96 (2), pp. 199-236. [51] COHEN-CHARASH, Y. and SPECTOR, P.E. (2001) The role of justice in organizations: a meta-analysis. Organizational Behavior and Human Decision Processes, 86 (2), pp. 278-321. [52] STETS, J.E. and BURKE, P.J. (2000) Identity theory and social identity theory. Social Psychology Quarterly, 63, pp. 224- 237. [53] TURNER, J.C., MICHAEL, A.H., PENELOPE, J.O., STEPHEN, D.R., and MARGARET, S.W. (1987) Rediscovering Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 12 the Social Group: A Self-Categorization Theory. New York: Brasil Blackwell. [54] MAN, D.C. and LAM, S.S. (2003) The effects of job complexity and autonomy on cohesiveness in collectivistic and individualistic work groups: a cross-cultural analysis. Journal of Organizational Behavior, 24 (8), pp. 979-1001. [55] COLQUITT, J.A., NOE, R.A., and JACKSON, C.L. (2002) Justice in teams: Antecedents and consequences of procedural justice climate. Personnel Psychology, 55 (1), pp. 83-109. [56] TANGIRALA, S. and RAMUNUJAM, R. (2008) Employee silence on critical work issues: The cross level effects of procedural justice climate. Personnel Psychology, 61, 37068. [57] CHERNYAK-HAI, L. and TZINER, A. (2014) Relationships between counterproductive work behavior, perceived justice and climate, occupational status, and leader-member exchange. Journal of Work and Organizational Psychology, 30 (1), pp. 1-12. [58] SANTOS, A. and EGER, A. (2014) Gender differences and predictors of workplace deviance behaviour: the role of job stress, job satisfaction and personality on interpersonal and organisational deviance. International Journal of Management Practice, 7 (1), pp. 19-38. [59] VAN ZYL, C.J.J. and DE BRUIN, G.P. (2018) Predicting counterproductive work behavior with narrow personality traits: A nuanced examination using quantile regression. Personality and Individual Differences, 131, pp. 45-50. [60] JACOBSON, K.J.L. (2009) Contextual and Individual Predictors of Counterproductive Work Behaviors. Tempe, Arizona: Arizona State University. [61] JU, D., XU, M., QIN, X., and SPECTOR, P. (2019) A Multilevel Study of Abusive Supervision, Norms, and Personal Control on Counterproductive Work Behavior: A Theory of Planned Behavior Approach. Journal of Leadership & Organizational Studies, 26 (2), pp. 163-178. [62] MIAO, C., HUMPHREY, R.H., & QIAN, S. (2017) Are the emotionally intelligent good citizens or counterproductive? A meta-analysis of emotional intelligence and its relationships with organizational citizenship behavior and counterproductive work behavior. Personality and Individual Differences, 116, pp. 144-156. [63] FAGBOHUNGBE, B.O., AKINBODE, G.A., and AYODEJI, F. (2012) Organizational determinants of workplace deviant behaviours: An empirical analysis in Nigeria. International Journal of Business and Management, 7 (5), 207. [64] DEBUSSCHER, J., HOFMANS, J., and DE FRUYT, F. (2016) The effect of state core self-evaluations on task performance, organizational citizenship behaviour, and counterproductive work behaviour. European Journal of Work and Organizational Psychology, 25 (2), pp. 301-315. [65] RAHIM, A.R., SHABUDIN, A., and MOHD NASURDIN, A. (2012) Effects of job characteristics on counterproductive work behavior among production employees: Malaysian experience. International Journal of Business and Development Studies, 8 (1), pp. 117-139. [66] UCHE, I.I., GEORGE, O., and ABIOLA, W. (2017) Counterproductive work behaviors: a socio-demographic characteristic-based study among employees in the Nigerian maritime sector. Acta Universitatis Sapientiae, Economics and Business, 5 (1), pp. 117-138. [67] TUCKER, J.S., SINCLAIR, R.R., MOHR, C.D., ADLER, A.B., THOMAS, J.L., and SALVI, A.D. (2009) Stress and counterproductive work behavior: Multiple relationships between demands, control, and soldier indiscipline over time. Journal of Occupational Health Psychology, 14 (3), 257. [68] MATTA, F.K., EROL-KORKMAZ, H.T., JOHNSON, R.E., and BIÇAKSIZ, P. (2014) Significant work events and counterproductive work behavior: The role of fairness, emotions, and emotion regulation. Journal of Organizational Behavior, 35 (7), pp. 920-944. [69] ARIANI, D.W. (2013) The relationship between employee engagement, organizational citizenship behavior, and counterproductive work behavior. 13 International Journal of Business Administration, 4 (2), 46. [70] LUCAS, G.M. and FRIEDRICH, J. (2005) Individual differences in workplace deviance and integrity as predictors of academic dishonesty. Ethics & Behavior, 15 (1), pp. 15-35. [71] HASANATI, N., WINARSUNU, T., and KARINA, V.D. (2018) The influence of interpersonal conflict on counterproductive work behaviour mediated by job stress. In: Proceedings of the 3rd ASEAN Conference on Psychology, Counselling, and Humanities. Atlantis Press, pp. 276-282. [72] MAHDI, S., IBRAHIM, M., and ARMIA, S. (2018) The Role of Negative Emotions on the Relationship of Job Stress and Counterproductive Work Behavior (Research on Public Senior High School Teachers). International Journal of Asian Social Science, 8 (2), pp. 77-84. [73] DE CLERCQ, D., HAQ, I.U., and AZEEM, M.U. (2019) Time-related work stress and counterproductive work behavior: Invigorating roles of deviant personality traits. Personnel Review, 48 (7), pp. 1756- 1781. [74] ZHAO, J., XIAO, S., MAO, J., and LIU, W. (2018) The buffering effect of Machiavellianism on the relationship between role conflict and counterproductive work behavior. Frontiers in Psychology, 9, 1776. [75] VATANKHAH, S., JAVID, E., and RAOOFI, A. (2017) Perceived organizational support as the mediator of the relationships between high-performance work practices and counter-productive work behavior: Evidence from airline industry. Journal of Air Transport Management, 59, pp. 107-115. [76] HAROLD, C.M., OH, I.S., HOLTZ, B.C., HAN, S., and GIACALONE, R.A. (2016) Fit and frustration as drivers of targeted counterproductive work behaviors: A multifoci perspective. Journal of Applied Psychology, 101 (11), pp. 1513-1535. [77] WIDYANTI, R., IRHAMNI, G., RATNA, S., and BASUKI. (2020) Organizational Justice and Organizational Pride to Achieve Job Satisfaction and Job Performance. Journal of Southwest Jiaotong University, 55 (3). Available from http://jsju.org/index.php/journal/article/view/ 637. [78] WHELPLEY, C.E. and MCDANIEL, M.A. (2016) Self-esteem and counterproductive work behaviors: a systematic review. Journal of Managerial Psychology, 31 (4), pp. 850-863. [79] PALUPI, M. and TJAHJONO, H.K. (2016) A model of religiousity and organizational justice: the impact on commitment and dysfunctional behavior. In: Proceedings of the 27th International Business Information Management Association Conference, Milan, May 2016. King of Prussia, Pennsylvania: IBIMA Publishing. [80] PUNI, A., AGYEMANG, C.B., and ASAMOAH, E.S. (2016) Leadership styles, employee turnover intentions and counterproductive work behaviours. International Journal of Innovative Research and Development, 5 (1), pp. 1-7. [81] HSI, E. (2017) An Examination of Predictors of Counterproductive Work Behaviors: Personality Traits and Transformational Leadership. [82] O'BOYLE, E.H.,JR., FORSYTH, D.R., BANKS, G.C., and MCDANIEL, M.A. (2012) A meta-analysis of the Dark Triadand work behavior: A social exchange perspective. Journal of Applied Psychology, 97, pp. 557-579. [83] CROPANZANO, R., PREHAR, C.A., and CHEN, P.Y. (2002) Using social exchange theory to distinguish procedural from interactional justice. Group & Organization Management, 27 (3), pp. 324- 351. [84] WILLIAMS, E.A., SCANDURA, T.A., PISSARIS, S., and WOODS, J.M. (2016) Justice perceptions, leader-member exchange, and upward influence tactics. Leadership & Organization Development Journal, 37 (7), pp. 1000-1015. [85] FEIN, E.C., TZINER, A., LUSKY, L., and PALACHY, O. (2013) Relationships between ethical climate, justice perceptions, and LMX. Leadership and Organization Development Journal, 34 (2), pp. 147-163. [86] COOK, K.S. and RICE, E. (2006) Social Exchange Theory. In: DELAMATER, J. (ed.) Handbook of Social Psychology. http://jsju.org/index.php/journal/article/view/637 http://jsju.org/index.php/journal/article/view/637 Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 14 Handbooks of Sociology and Social Research. Boston, Massachusetts: Springer, pp. 53-76. [87] DANSEREAU, F., GRAEN, G.B., and HAGA, W.J. (1975) A vertical dyad linkage approach to leadership within formal organizations: A longitudinal investigation of the role making process. Organizational Behavior & Human Performance, 13, pp. 46- 78. [88] PILLAI, R., SCANDURA, T.A., and WILLIAMS, E.A. (1999) Leadership and organizational justice: Similarities and differences across cultures. Journal of International Business Studies, 30 (4), pp. 763-779. [89] SCHYNS, B., MEINDL, J.R., and CROON, M.A. (2007) The romance of leadership scale: Cross-cultural testing and refinement. Leadership, 3 (1), pp. 29-46. [90] KELLOWAY, E.K., FRANCIS, L., PROSSER, M., and CAMERON, J.E. (2010) Counterproductive work behavior as protest. Human Resource Management Review, 20 (1), pp. 18-25. [91] CLARK, S.B. (2013) Understanding Counterproductive Work Behavior: Aggressive Employees' Responses to Leader- Member Exchange. Master thesis, East Carolina University. [92] LIDEN, R.C., WAYNE, S.J., and STILWELL, D. (1993) A longitudinal study on the early development of leader-member exchanges. Journal of Applied Psychology, 78 (4), 662. 参考文: [1] ROBINSON，S.L. 和 BENNET，R.J. （1995）异常工作场所行为的类型学：多 维尺度研究。管理学院学报，38（20）， 第 555-572 页。 [2] T.A. O'NEILL，R.J 。 LEWIS, 和 J.J. CARSWELL。（2011）员工个性，正义 感以及对工作场所偏差的预测。人格与个 体差异，51（5），第 595-600 页。 [3] S. FOX 和 P.E. SPECTOR。（1999）工 作挫折侵略模型。组织行为学杂志，20 （6），第 915-931 页。 [4] GREENBERG ， J. 和 BARLING ， J. （1999）预测员工对同事，下属和主管的 侵略：人的行为和感知工作场所因素的作 用。组织行为杂志，20，第 897-913 页。 [5] VIGODA，E.（2002）与工作场所政治 相关的压力后果：政治，工作压力和组织 中的攻击行为之间的关系。组织行为学杂 志，23（5），第 571-591 页。 [6] VARDI，Y. 和 WIENER，Y.（1996） 组织中的不当行为：动机框架。组织科学， 7 (2)，第 151-165 页。 [7] S. FOX ， S. SPECTOR ， P.E., 和 MILES，D.（2001）为应对工作压力和组 织公正而产生的适得其反的工作行为 （CWB）：对自主性和情绪的一些调解人 和主持人测试。职业行为杂志，59，第 291-309 页。 [8] A.C. KLOTZ 和 M.R. BUCKLEY （2013）针对组织的适得其反的工作行为 的历史观点。管理历史杂志，19（1）， 第 114-132 页。 [9] LE BLANC ， M.M. 和 英 国 的 KELLOWAY（2002）工作场所暴力和侵 略的预测因素和结果。应用心理学杂志， 87（30），第 444-453 页。 [10] 彭尼（ LEN ）和 SPECTOR （ PE ） （2005）工作压力，不活跃，和适得其反 的工作行为（CWB）：负面影响的调节作 用。组织行为研究杂志，26，第 777-796 页。 [11] BENNET，R.J。和 ROBINSON，S.L. （2000）开发了一种衡量工作场所偏差的 方法。应用心理学杂志，85（ 3），第 349-360 页。 [12] MURPHY，K.R。（1993）在工作场 所诚实。加利福尼亚太平洋丛林镇：布鲁 克斯/科尔。 [13] B.L. KIRKMAN，R.G。琼斯, 和 D.L. SHAPIRO。（2000）为什么员工抵制团 队？检查工作团队效率的“阻力壁垒”。国 际冲突管理杂志，11 (1)，第 74-92 页。 [14] PHILLIPS，J.M.，E.A。DOUTHITT, 和 M.M. HYLAND（2001）正义在团队成 员对领导者的满意和对团队的依恋中的作 用。应用心理学杂志，86（2），316。 [15] MOSSHOLDER ， K.W. ， BENNETT ， N.，KEMERY，E.R., 和 WESOLOWSKI， 15 M.A.（1998）权力基础与工作反应之间的 关系：程序正义的中介作用。管理杂志， 24（4），第 533-552 页。 [16] NAUMANN，S.E. 和 BENNETT，N. （2000）程序正义环境的案例：多层次模 型的开发和检验。管理学院学报， 43 （5），第 881-889 页。 [17] SIMONS ， T. 和 ROBERSON ， Q. （2003）为什么管理者应该关注公平：总 体正义观念对组织结果的影响。应用心理 学杂志，88（3），432。 [18] LI ， A. 和 CROPANZANO ， R. （2009）团体层面的公平：正义气氛和单 位内部正义气氛。管理学报，35（3）， 第 564-599 页。 [19] EHRHART，医学硕士（2004）领导 力和程序正义氛围是单位级别组织公民行 为的前提。人事心理学，57（1），第 61- 94 页。 [20] 罗伯逊，Q.M。和 COLQUITT，J.A. （2005）共享和配置正义：团队正义的社 交网络模型。管理评论学会，30（3）， 第 595-607 页。 [21] LAVELLE ， J.J. ， RUPP ， D.E., 和 BROCKNER，J.（2007）采用多焦点方法 研究正义，社会交流和公民行为：目标相 似性模型。管理学报，33（6），第 841- 866 页。 [22] ZAPATA-PHELAN ， C.P. ， COLQUITT ， J.A. ， SCOTT ， B.A., 和 LIVINGSTON，B.（2009）程序正义，互 动正义和任务执行：内在动机的中介作用。 组织行为与人类决策过程，108（1），第 93-105 页。 [23] GREENBERG，J。（1993）正义与组 织公民权：对科学状态的评论。员工责任 与权利杂志，6（3），第 249-256 页。 [24] J.A. 的 COLQUITT ， D.E 。 的 CONLON，M.J。的 WESSON，C.O。的 PORTER, 和 K.Y.的 NG。（2001）千年司 法：对 25 年组织正义研究的荟萃分析。 应用心理学杂志，86（3），第 425-445 页。 [25] 彭尼（ LEN ）和 SPECTOR （ PE ） （2002）自恋和适得其反的工作行为：更 大的自我意味着更大的问题吗？国际选择 与评估杂志，10（1-2），第 126-134 页。 [26] GRUYS，M.L. 和 SACKETT，P.R. （2003）调查适得其反的工作行为的维度。 国际选择与评估杂志，11（1），第 30-42 页。 [27] DEVONISH，D. 和 GREENIDGE，D. （2010）组织公正对情境绩效，适得其反 的工作行为和任务绩效的影响：调查基于 能力的情商的调节作用。国际选择与评估 杂志，18（1），第 75-86 页。 [28] AKREMI，A.E.，VANDENBERGHE， C., 和 CAMERMAN，J.（2010）司法和社 会交换关系在工作场所偏差中的作用：中 介模型的检验。人际关系, 63（11），第 1687-1717 页。 [29] SPELL，C.S。和 ARNOLD，T.J。 （2007）对组织公正的气候，结构和员工 心理健康进行了多层次分析。管理学报， 33（5），第 724-751 页。 [30] LIAO，H。和 RUPP，D.E.（2005） 司法环境和司法方向对工作成果的影响： 跨层次的多焦点框架。应用心理学杂志， 90（2），242。 [31] AQUINO ， K. ， LEWIS ， M.U., 和 BRADFIELD，M.（1999）正义建构，消 极情感和员工偏差：提议的模型和实证检 验。组织行为学杂志，20（7），第 1073- 1091 页。 [32] GRAEN ， G.B. 和 UHL-BIEN ， M. （1995）基于关系的领导方法：领导者- 成员交换（LMX）领导理论在 25 年间的 发展：应用多层次，多领域的观点。领导 力季刊，6，第 219-247 页。 [33] R.C. LIDEN，R.T。SPARROWE, 和 S.J. WAYNE。（1997）领导者－成员交 换理论：过去和未来的潜力。人事与人力 资源管理研究，15，第 47-120 页。 [34] W. VAN BREUKELEN ， R 。 VAN DER LEEDEN，W。WESSELIUS, 和 M. HOES（2012）运动队内部的差别待遇， 领导-成员（教练-球员）的交换素质，团 队氛围和团队绩效。组织行为学杂志，33 （1），第 43-63 页。 Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 16 [35] GRAEN，GB 以及 SCANDURA，T.A. （1987）走向二元化组织心理学。组织行 为研究，9，第 175-208 页。 [36] TRUCKENBRODT，Y.B。（2001） 对领导者－成员交换与组织承诺和组织公 民行为之间关系的实证评估。博士论文。 [37] RASOULI，R. 和 HAGHTAALI，M. （2009）领导成员交流对德黑兰社会保障 部门工作满意度的影响。土耳其公共管理 年度刊，第 32-35 页。 [38] LEE, H.，S.K。MURRMANN，K.F。 MURRMANN, 和 K. KIM（2010）组织正 义，作为领导者与员工交换与员工离职意 图之间关系的中介。酒店营销与管理杂志， 19（4），第 97-114 页。 [39] BURTON，J.P.，C.J。SABLYNSKI, 和 T. SEKIGUCHI（2008）通过领导人与 成员之间的交流将正义，绩效和公民身份 联系起来。商业与心理学杂志，23（1- 2），第 51-61 页。 [40] PICCOLO ， R.F. ， BARDES ， M. ， Mayer，D.M., 和 JUDGE，T.A.（2008） 高素质的领导－成员交流是否会增强组织 公正的影响？ 欧洲工作与组织心理学杂志， 17 (2)，第 273-298 页。 [41] B. ERDOGAN 和 R.C. LIDEN 。 （2006）集体主义作为对组织正义的回应 的调解者：对领导成员交流和敬畏的影响。 组织行为学杂志，27（1），第 1-17 页。 [42] VIDYARTHI，P.R.，LIDEN，R.C.， ANAND ， S. ， ERDOGAN ， B., 和 GHOSH，S.（2010）我站在哪里？检查领 导者-成员交换社会比较对员工工作行为 的影响。应用心理学杂志，95（5），第 849-861 页。 [43] SCHYNS ， B. ， KROON ， B., 和 MOORS，G.（2008）追随者特征和领导 者与成员之间的交流感。管理心理学杂志, 23（7），第 772-788 页。 [44] COLQUITT，J.A。（2001）关于组织 正义的维度：一种措施的结构验证。应用 心理学杂志，86（3），第 386-400 页。 [45] HAIR ， J.F. ， BLACK ， W.C. ， BABIN ， B.J. ， ANDERSON ， R.E., 和 TATHAM，R.L.（2006）多元数据分析， 卷。6。新德里：培生教育。 [46] RAUDENBUSH，S.W.以及 BRYK， A.S.（2002）分层线性模型：应用程序和 数据分析方法。第二版。加利福尼亚纽伯 里公园：圣人。 [47] SISWANTI，Y.，TJAHJONO，H.K.， HARTONO ， A 。 和 PRAJOGO ， W 。 （2020）组织正义的气候：构建度量和验 证。测试工程与管理，82，第 8574-8590 页。 [48] 纽曼，D.A。和 SIN，H.P.（2009）缺 失数据如何使集团内部协议的估计偏倚？ 工作组，工作组，工作量（J），工作组 （J）*和国际刑事法院对系统无响应的敏 感性。组织研究方法，12 (1)，第 113-147 页。 [49] MACKINNON，D.P。和 LUECKEN， L.J.（2008）如何以及为谁服务？健康心 理学的调解和节制。健康心理学， 27 （2S），第 S99-S100 页。 [50] J.A. COLQUITT ， J.B 。 RODELL ， ZAPATA，C.P。SCOTT，B.A。SCOTT， LONG D.M., 和 D.E. CONLON。（2013） 十年后的千年正义：对社会交流和基于情 感的观点的荟萃分析。应用心理学杂志， 96（2），第 199-236 页。 [51] Y. COHEN-CHARASH 和 P.E. SPECTOR （ 2001 ） 正义在组织中 的 作 用：荟萃分析。组织行为与人类决策过程， 86 (2)，第 278-321 页。 [52] STETS ， J.E 。 和 BURKE ， P.J 。 （2000）身份理论和社会身份理论。社会 心理学季刊，63，第 224-237 页。 [53] 特纳（J.C.），迈克尔（A.H.），佩 内洛普（PENELOPE），乔布斯（D.R.）, 和 马格瑞特（S.W.）（1987）重新发现社 会群体：一种自我分类理论。纽约：巴西 布莱克威尔。 [54] 哥伦比亚特区曼彻斯特大学 和 林圣 美学院（2003）工作复杂性和自主性对集 体和个人主义工作组凝聚力的影响：跨文 化分析。组织行为学杂志，24（8）, 第 979-1001 页。 17 [55] J.A. COLQUITT，R.A。NOE, 和 C.L. JACKSON。（2002）团队正义：程序正 义氛围的前因和后果。人事心理学，55 （1），第 83-109 页。 [56] TANGIRALA，S. 和 RAMUNUJAM， R.（2008）员工在关键工作问题上保持沉 默：程序正义气氛的跨层次影响。人事心 理学，61，37068。 [57] CHERNYAK-HAI，L. 和 TZINER，A. （2014）适得其反的工作行为，正义感与 气候，职业地位以及领导者与成员之间的 关系。工作与组织心理学杂志, 30（1）， 第 1-12 页。 [58] SANTOS，A. 和 EGER，A.（2014） 性别差异和工作场所偏差行为的预测指 标：工作压力，工作满意度和个性在人际 和组织偏差方面的作用。国际管理实践杂 志，7（1），第 19-38 页。 [59] VAN ZYL，C.J.J。和 DE BRUIN， G.P.（2018）用狭窄的人格特质预测适得 其反的工作行为：使用分位数回归的细微 差别检查。人格与个体差异，131，第 45- 50 页。 [60] 雅各布森，K.J.L。（2009）反生产工 作行为的情境和个体预测。亚利桑那州坦 佩：亚利桑那州立大学。 [61] JU ， D. ， XU ， M. ， QIN ， X., 和 SPECTOR，P.（2019）对适得其反的工作 行为的滥用监督，规范和个人控制的多层 次研究：计划行为方法理论。领导与组织 研究杂志，26（2），第 163-178 页。 [62] MIAO，C.，HUMPHREY，R.H., 和 QIAN，S.（2017）情绪智力好的好公民还 是适得其反？对情绪智力及其与组织公民 行为和适得其反的工作行为之间关系的元 分析。人格与个体差异，116，第 144-156 页。 [63] FAGBOHUNGUNG ， B.O. ， AKINBODE ， G.A., 和 AYODEJI ， F. （2012）工作场所越轨行为的组织决定因 素：尼日利亚的一项经验分析。国际商业 与管理杂志，7（5），207。 [64] DEBUSSCHER，J.，HOFMANS，J., 和 DE FRUYT，F.（2016）国家核心自我 评估对任务绩效，组织公民行为和适得其 反的工作行为的影响。欧洲工作与组织心 理学杂志，25（2），第 301-315 页。 [65] RAHIM，A.R.，SHABUDIN，A., 和 MOHD NASURDIN，A.（2012）工作特 征对生产员工中适得其反的工作行为的影 响：马来西亚的经验。国际商业与发展研 究杂志，8（1），第 117-139 页。 [66] UCHE ， I.I. ， GEORGE ， O 。 和 ABIOLA，W。（2017）适得其反的工作 行为：一项基于尼日利亚尼日利亚海事部 门雇员的社会人口学特征的研究。大学学 报，经济学和商业，5（1），第 117-138 页。 [67] TUCKER，J.S.，SINCLAIR，R.R.， MOHR ， C.D. ， ADLER ， A.B. ， THOMAS ， J.L 。 和 SALVI ， A.D 。 （2009）压力和适得其反的工作行为：随 着时间的流逝，需求，控制和士兵纪律之 间的多重关系。职业健康心理学杂志，14 （3），257。 [68] F.K. MATTA ， H.T 。 EROL- KORKMAZ ， R.E 。 JOHNSON, 和 P. BIÇAKSIZ（2014）重要的工作事件和适 得其反的工作行为：公平，情绪和情绪调 节的作用。组织行为学杂志，35（7）， 第 920-944 页。 [69] ARIANI，D.W。（2013）员工敬业 度，组织公民行为和适得其反的工作行为 之间的关系。国际工商管理杂志，4（2）， 46。 [70] LUCAS，G.M。和 FRIEDRICH，J. （2005）工作场所偏差和诚信的个体差异 是学术不诚实的预测因素。道德与行为， 15（1），第 15-35 页。 [71] N. HASANATI ， T 。 WINARSUNU, 和 V.D. KARINA。（2018）人际冲突对 工作压力介导的适得其反的工作行为的影 响。在：第三届东盟心理学，咨询和人文 会议论文集。亚特兰蒂斯出版社，第 276- 282 页。 [72] MAHDI ， S. ， IBRAHIM ， M., 和 ARMIA，S.（2018）负面情绪在工作压力 与适得其反的工作行为之间的关系（对公 立高中教师的研究）。国际亚洲社会科学 杂志，8（2），第 77-84 页。 Siswanti et al. / Journal of Southwest Jiaotong University / Vol.55 No.4 Aug. 2020 18 [73] DE CLERCQ ， D. ， HAQ ， I.U., 和 AZEEM，M.U.（2019）与时间相关的工 作压力和适得其反的工作行为：激发人格 特质的作用。人事评论，48（ 7），第 1756-1781 页。 [74] 赵剑，肖南，毛剑，刘维。（2018） 马基雅维利主义对角色冲突和适得其反的 工作行为之间关系的缓冲作用。心理学前 沿，1776 年 9 月。 [75] S. VATANKHAH，E。JAVID, 和 A. RAOOFI（2017）将组织支持视为高性能 工作实践与适得其反的工作行为之间关系 的中介者：来自航空业的证据。航空运输 管理杂志，59，第 107-115 页。 [76] HAROLD，C.M.，OH，I.S.，HOLTZ， B.C.，HAN，S.，和 GIACALONE，R.A. （2016）适应和挫折感成为有针对性的适 得其反的工作行为的驱动力：多焦点视角。 应用心理学杂志，101（11），第 1513- 1535 页。 [77] R. WIDYANTI ， G 。 IRHAMNI ， RATNA，S。和 BASUKI。（2020）实现 工作满意度和工作绩效的组织正义和组织 自豪感。西南交通大学学报，55（3）。 可 从 http://jsju.org/index.php/journal/article/view/ 637 获得。 [78] WHELPLEY，C.E. 和 MCDANIEL， M.A.（2016）自尊和适得其反的工作行 为：系统评价。管理心理学杂志，31 (4)， 第 850-863 页。 [79] M. PALUPI 和 H.K. TJAHJONO 。 （2016）宗教和组织公正的模型：对承诺 和功能失调行为的影响。在：第 27 届国 际商业信息管理协会会议记录，2016 年 5 月，米兰。宾夕法尼亚州普鲁士国王：伊 比马出版。 [80] A. PUNI，C.B。AGYEMANG, 和 E.S. ASAMOAH。（2016）领导风格，员工离 职意图和适得其反的工作行为。国际创新 研究与发展杂志，5（1），第 1-7 页。 [81] HSI，E.（2017）对适得其反的工作 行为的预测因素的检验：人格特质和变革 型领导。 [82] O'BOYLE，E.H.，JR。，FORSYTH， D.R.，BANKS，G.C., 和 MCDANIEL， M.A.（2012）对“黑暗三合会”工作行为的 荟萃分析：一种社会交流的观点。应用心 理学杂志，97，第 557-579 页。 [83] CROPANZANO ， R. ， PREHAR ， C.A., 和 CHEN，P.Y.（2002）使用社会交 换理论来区分程序和互动正义。小组与组 织管理，27（3），第 324-351 页。 [84] E.A.威廉姆斯，TA.A。SCANDURA， S。PISSARIS, 和 J.M. WOODS（2016）正 义感，领导者-成员交流和向上影响策略。 领导力与组织发展杂志 , 37 （ 7 ），第 1000-1015 页。 [85] E.C. FEIN ， A 。 TZINER ， L 。 LUSKY, 和 O. PALACHY（2013）道德氛 围，正义观念和 LMX 之间的关系。领导 力与组织发展杂志，34 (2)，第 147-163 页。 [86] COOK，K.S。和 RICE，E.（2006） 社会交流理论。在：德拉马特，J。（编 辑）社会心理学手册。社会学和社会研究 手册。马萨诸塞州波士顿：施普林格，第 53-76 页。 [87] DANSEREAU，F.，GRAEN，G.B., 和 HAGA，W.J.（1975）在正式组织中领 导层的垂直双联方法：对角色形成过程的 纵向调查。组织行为与人类绩效，13，第 46-78 页。 [88] R. PILLAI ， T.A 。 SCANDURA, 和 E.A. WILLIAMS。（1999）领导力与组织 公正：跨文化的异同。国际商业研究杂志， 30（4），第 763-779 页。 [89] SCHYNS ， B. ， MEINDL ， J.R., 和 CROON ， M.A. （ 2007 ）领导规模的浪 漫：跨文化的测试和完善。领导力，3 （1），第 29-46 页。 [90] E.K. KELLOWAY，L。FRANCIS， M 。 PROSSER, 和 J.E. CAMERON （2010）以示反效果的工作行为作为抗议。 人力资源管理评论，20（1），第 18-25 页。 [91] CLARK，S.B.（2013）了解适得其反 的工作行为：积极进取的员工对领导成员 交换的反应。东卡罗来纳大学硕士论文。 [92] LIDEN ， R.C. ， WAYNE ， S.J., 和 STILWELL，D.（1993）对领导成员交流 19 早期发展的纵向研究。应用心理学杂志， 78（4），662。 
work_k5pm52qotfe4nf3iv6kdhozywe	----	A Jeffrey Political geographies of transitional justice cover sheet Newcastle University e-prints Date deposited: 20th June 2011 [made available 1st July 2012] Version of file: Author final Peer Review Status: Peer reviewed Citation for item: Jeffrey A. The Political Geographies of Transitional Justice. Transactions of The Institute of British Geographers 2011, 36(3), 344-359. Further information on publisher website: http://www.blackwell-synergy.com Publisher’s copyright statement: The definitive version is available at www.blackwell-synergy.com DOI link: http://dx.doi.org/10.1111/j.1475-5661.2011.00429.x Always use the definitive version when citing. Use Policy: The full-text may be used and/or reproduced and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not for profit purposes provided that: • A full bibliographic reference is made to the original source • A link is made to the metadata record in Newcastle E-prints • The full text is not changed in any way. The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Robinson Library, University of Newcastle upon Tyne, Newcastle upon Tyne. NE1 7RU. Tel. 0191 222 6000 1 The Political Geographies of Transitional Justice Abstract This paper examines how geographers can contribute to debates concerning transitional justice. Recent scholarship in criminology has identified a residual ‘legalism’ in the enactment and study of transitional justice: trial processes and the perspectives of jurists have been prioritised over wider processes of social healing and the perceptions of non-legal actors. This paper explores how geographers can contribute to challenging this prioritisation of legal processes within the study and practice of transitional justice. This is achieved through an examination of attempts to establish forms of transitional justice in Bosnia and Herzegovina since the end of the war in 1995. Specifically, the paper explores the establishment in 2005 of the War Crimes Chamber of the Court of Bosnia and Herzegovina and the civil society-based strategies it has employed to reach out to witnesses and victim populations. The paper makes two interlinked arguments. First, it examines how the international response to the war in BiH placed justice at a distance from victim communities. Second, the paper argues that civil society activities undertaken to widen access to justice have opened up new spaces of deliberation and critique. It is argued that these spatialities point to possibilities of deliberative conceptions of justice fostered beyond legal institutions and processes. Keywords Bosnia and Herzegovina, Transitional Justice, Political Geography, Law, Civil Society 2 Introduction There has been a wealth of recent work in geography examining the spatial nature and effects of legal mechanisms and discourses. This work has spanned traditional sub- disciplinary areas, and exceeds a neatly-delineated sphere of legal geography (Blomley 2008; Blomley et al. 2001). In this paper I will explore how this work can enrich understandings and practices of transitional justice. While state legal mechanisms and international law have both captured the attention of geographical scholars, rather less work has focused on the spatial aspects of judicial mechanisms set up in periods of political transformation and change. As a corrective, I argue that geographers can contribute to understanding transitional justice by exploring the spaces through which judicial processes operate and the spatial imaginaries they bring into being. This argument challenges prevailing narratives of transitional justice that have foregrounded legal institutions, individuals and knowledge as the focal point of transitional justice, to the exclusion of wider spheres of practice and reflection. While legal practices are rightly key elements of transitional justice responses, these operate through and summon into existence a series of non-legal spaces and actors. This argument is made in response to a growing sense in affiliated disciplines, particularly criminology, that the study of transitional justice has been characterised by a dominance of ‘legalism’ (McEvoy 2007). This term is used to indicate the privileging of legal institutions within attempts to foster transitional justice and the allied dominance of the perspectives of lawyers and judges within scholarly and policy debates. In intellectual terms, legalism can be understood as a process which 3 seeks to separate law from other social sciences; most notably politics (McEvoy 2007; Shklar 1986). I will argue that a legalistic understanding of transitional justice elevates the significance of certain spaces and spatial practices (for example, courts and legal processes) over the wider institutional and political setting in which they operate (including, though not restricted to, human rights NGOs, political parties and state agencies). Consequently this paper seeks to destabilise a legalistic understanding of transitional justice and highlight the spatial practices of non-legal institutions and individuals. In order to illustrate this argument the paper draws on empirical material relating to the establishment of the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina (CBiH) and its attempts to build links with victims of, and witnesses to, the war crimes committed during the 1992-5 conflict. Since 2005 the WCC has been granted jurisdiction over intermediate and lower-ranking war crimes cases.1 The Chamber will take a lead role in remaining war crimes cases following the completion of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) at the end of the trial of Radovan Karadžić, at a date expected to be in 2012. In an attempt to build links with communities in Bosnia and Herzegovina (BiH) the Court established, in 2006, a Court Support Network (CSN) comprising five NGOs located in towns across the country. This paper assesses the establishment of this outreach initiative and the new spatialities of justice that it has created. The activities of the CSN point to the importance of non-legal agencies to the completion of legal processes. In addition the qualitative responses of the NGO members point to innovative configurations of space, law and justice that operate outside of the formal 4 legal processes. These situated knowledges challenge a narrow legalistic understanding of transitional justice and illustrate the production of new imaginaries of justice and the future. In disciplinary terms this argument contributes to the work of legal geographers in challenging the conception of law operating outside or ‘above’ the society it serves. In ethical and political terms, the empirical material illustrates the importance of non-legal actors and spaces in generating deliberative notions of just outcomes following conflict. The empirical material is drawn from qualitative research conducted during residential fieldwork in the Bosnian towns of Sarajevo, Mostar and Bijeljina in January 2007 and October 2009, building on a long-term research engagement examining the nature of international intervention in BiH since 1999. Taking seriously Megoran’s (2006, 622) call for greater emphasis within political geographic inquiry on “people’s experience and everyday understandings of the phenomena under question”, this approach seeks to explore the mundane and prosaic operation of new legal mechanisms in BiH as they shape, and are shaped by, the civil society organisations under examination. The research visits involved twenty-five semi- structured interviews with representatives from the Court (in particular the Court Public Information and Outreach division), from wider judicial bodies such as the ICTY liaison team in Sarajevo, with other international organisations such as the Office of the High Representative (OHR), United Nations Development Programme (UNDP) and the European Commission and with NGOs both within and beyond the CSN. In addition, the research involved translating and reviewing institutional literature from the Court, the ICTY and the NGO community. 5 The first section of the paper outlines how geographers have explored the relationship between law and space, work that provides critical insights to the production of legal knowledge and its ability to produce spatial outcomes. The second section outlines the history of transitional justice, focusing in particular on its operation through temporal and spatial distance. In the third section I outline a critical geopolitics of justice in BiH, exploring in particular how the international response to the Bosnian war has shaped the possibilities and format of subsequent judicial interventions. The forth section examines the establishment of the Court of Bosnia and Herzegovina, drawing on the wider context of the international response to the war in Bosnia and Herzegovina. The fifth section draws on the empirical material to illustrate the role played by NGOs in supporting the work of the war crimes chamber, focusing in particular on the ‘invited’ and ‘invented’ spaces of justice that have been produced. The Political Geographies of Law The adoption of social and cultural theory into the discipline of geography since the early 1980s has enriched understandings of the relationship between law and space (Blomley 2008). Mirroring theoretical advances in other areas of the discipline, this scholarship has often drawn on Foucault’s explorations of the relationship to between power and knowledge to explore law as a form of discourse (Foucault 1980; Herbert 1996). This approach highlights the grounding of law in particular historical and geographical contexts, and its simultaneous capacity to produce spatial arrangements and erase or exclude others. One of the key objects of concern for this work is the 6 relationship between law and state spatiality. As David Delaney (2001) identifies, the conventional distinction between ‘domestic’ and ‘international’ law renders state sovereignty at the heart of understandings of legal spatiality. In a sense, the centrality of the state points to a wider ‘territorial trap’ (Agnew 1994) in legal studies, whereby state territoriality is presented as a pre-existing spatial framework within and between which legal obligations and rights operate in a systematic fashion. This straightforward understanding of the spatiality of law has been challenged by geographers who have sought to explore the productive capacity of legal discourses to produce spatial arrangements. Consequently scholars have drawn inspiration from this understanding of law as a performance of, and through, space. For example Sallie Marston (2004) examines the spatial effects of legal judgements on the participation of a gay, lesbian and bisexual group in the St. Patrick’s Day parade in Boston, Massachusetts. Marston explores how the legal processes ‘fixed’ certain understandings of society, space and culture. Significantly, these were not neutral definitions of these concepts, but were rather served to promote understandings of society that excluded groups that did not conform to hegemonic expectations. By tracing the path of legislation through the US State and Supreme courts, Marston highlights the way in which legal judgements hinged on a particular understanding of society and space that held them as distinct spheres, rather than as “mutually constitutive processes” (Marston 2004, 11). Marston argues that this separation had profound consequences for how culture was understood as a commodity that belongs to one group rather than “something that is constantly negotiated and transformed through the public give and take of changing 7 ideas and meaning systems in a changing world” (Marston 2004, 14). Within this account legal decisions are not technical adjudications on an external reality, but are rather incursions of power that categorise the social world in order to endorse dominant conceptualisations of identity and belonging. More recently scholars have turned to the materiality of legal practices to confront the perception of law as “a universal abstraction, set apart from the messy realities of local particularities” (Blomley 2008, 161). This work has illuminated the spaces through which legal authority is produced, for example through court rooms, government departments and international bureaucracies (Gregory 2007; Kuus Forthcoming; Latour 2010). By employing ethnographic methodologies to study the materials and contexts of law making, scholars have highlighted the role of everyday bureaucratic processes in shaping legal outcomes, challenging the notion of a clear separation between law and society. In addition to troubling the purity of legal knowledge, these insights highlight the enrolment of spatial abstraction in producing legal authority, from the micro-geographies of the body and the court room, through to the separation of legal buildings from surrounding infrastructures. From this largely geographical work examining the experiential and material attributes of the state-law relationship emerges a concern with the production of legal knowledge and its ability to bring certain subjectivities and spaces into being. One of the key insights shared by these strands of work is the recognition that the operation of law exceeds the arenas conventionally set out for the performance of legal dramas. Just as scholars have sought to question the rigid distinction between state and 8 society, the mutual co-constitution of law and society can therefore be traced through social practices and routines. Drawing on these insights, I would argue that law is a socially embedded process of knowledge production that enrols individuals and institutions beyond the confines of law courts and judicial pronouncements. This approach highlights the governmental nature of legal discourses, where spaces and subjects are labelled and organised through the practice of law. But this framework also focuses attention on the necessity of understanding the ways in which purportedly ‘non-legal’ actors and institutions are drawn into the practice of law. This focus on the substance of law orientates attention to the nature of human agency within legal processes. As the scholarship in legal and political geography has primed us to expect, individuals are not benign recipients of legal discourses but actively constitute and resist these discourses through their everyday lives. In order to conceptualise this notion of agency I will draw on Miraftab and Wills’s (2005) account of activism against water and electricity privatisation in the Western Cape in South Africa. This research stratifies citizenship into ‘invited’ and ‘invented’ practices, illuminating a distinction between formal (‘invited’) notions of neoliberal citizenship centred on voting rights and the consumption of private services, and more improvised (‘invented’) understandings of citizenship focusing on human rights and equality (see also Cornwall, 2002). This vocabulary has spatial implications. In material terms this work illuminates the ‘invented’ spaces through which struggles over citizenship were performed: the street, the home and the infrastructure of the city. In more imaginative terms, this work demonstrates the ways in which ‘invented’ citizenship relied on forms of solidarity that operate across a series of spatial scales 9 within and beyond the state: from the neighbourhood, to the city and through to transnational ties with other activist groups. The use of legal instruments to implement transitional justice in BiH can be analysed through this distinction between ‘invited’ and ‘invented’ practices. This approach illustrates the ways in which formal sites of justice are simultaneously sustained and challenged through invented practices embedded in civil society. It also illustrates the plural spatiality of transitional justice beyond state territoriality. Applying this mode of spatial inquiry to the case of transitional justice requires an exploration of the particular nature of such legal initiatives and their emergence over the past century. The Distance of Transitional Justice The United Nations Security Council define transitional justice as the “full range of processes and mechanism’s associated with a society’s attempts to come to terms with a legacy of past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (United Nations Security Council 2004, 4). While this definition is by no means uncontested (see Teitel 2003), it serves as a starting point for an analysis of the ways in which transitional justice operates through distance. This distance can be articulated in three ways. First, transitional justice operates across a temporal shift, namely that the crimes and the judicial response are occurring at different times, under purportedly different regimes. Consequently, written in to varying definitions of the concept of transitional 10 justice is a sense of the passage of time, setting a distance between crime and punishment. In early attempts to establish instruments of transitional justice this distancing opened legal questions as to the possibility of trying individuals for crimes committed under different legal rule sets. Specifically, the Nuremburg Trials at the end of WWII were criticised at the time for instituting ex post facto law, and challenging the fundamental legal principle of nullum crimen sine lege, nulla poena sine lege (no crime without a law, no punishment without a law) (Kerr and Mobekk 2007, 20). Despite the codification of war crimes in the Geneva Conventions in 1949, the challenge of trying individuals under new legal and political circumstances remains. The significance of shifting political contexts was illustrated in Radovan Karadžić’s pre-trial defence at the ICTY in 2009, where he argued that he had secured immunity from prosecution from the US chief peace negotiator during the Bosnian War, Richard Holbrooke. While refuted by Holbrooke (2008) -- though seemingly confirmed by recent anonymous US State Department accounts (see Klemenčič, 2009) -- this attempt to challenge the jurisdiction of the court illustrates the space opened for contestation through the time delay between crime and trial. In addition to the changing political and legal context, the temporal shift also poses logistical problems for the operation of transitional justice. There are clear challenges to conducting trials after the crimes are alleged to take place, for examples the mortality of witnesses, victims and offender and the degradation of material evidence. Secondly, the institutions of transitional justice are often spatially removed from the context within which the crimes took place. Sriram and Ross (2007, 46) describe this as the ‘externalisation of justice’, where “trials and legal processes occur far from the 11 locus of the crime”. This is most evident in the cases of the tribunals for the conflicts Yugoslavia and the International Criminal Court (ICC) which are both currently based in The Hague in the Netherlands. But even where domestic tribunals or court facilities are used, their sites are often separated from the geographical context of the crimes and victim communities, either through their location in the capital city or through security measures separating the courts from surrounding infrastructures. The Gacaca courts in Rwanda, which have attempted to institute more traditional dispute resolution mechanisms, offer an example of a more socially-embedded legal process (Clark 2007). But even in these attempts, the justice process is confronting a social and demographic context that has radically changed through the conflict and post- conflict periods. In cases such as the former Yugoslavia the displacement and migration of victim communities means that courts often have to face the logistical challenge of gaining testimony from witnesses and victims distributed across the globe. But even where refugees have returned, internal displacements and demographic changes can pose a challenge to the operation of justice. The Rwandan programme of Imidugudu (‘villagisation’) undertaken since 1997 provides an example of the role of government sponsored social engineering creating new spatial challenges to the operation of transitional justice, where former social ties are disrupted and potential trial participants re-distributed across the territory of the state (see van Leeuwen, 2001) 2. Attempts have been made to address the temporal and spatial separation of legal mechanisms of transitional justice from the societies and contexts within which the crimes took place. Notable examples include the establishment of the Truth and 12 Reconciliation Commission (TRC) in South Africa to confront the crimes of the apartheid or the hybrid international/local courts established in Timor-Leste and Cambodia. But these institutional responses do not detract from a third form of distancing: the use of law. While institutional forms of transitional justice have varied over the last century, they have been structured around the use of law as a mechanism through which justice may be sought. This approach has prioritised the establishment of new judicial institutions and the design of new legal and criminal codes through which crimes may be prosecuted. This is necessarily a practice of distancing, where contestation is removed from its social context and evaluated court rooms and legal chambers. The reliance of legal authority on a degree of separation from “local particularities” (Blomley 2008) has engendered a policy response by international organisations, such as the UN, who have adopted programmes in order to widen “access to justice” (UNDP 2010). These large scale policy formulations have cultivated civil society responses who have sought to build connections between court processes and community groups (see Hodžić 2010). In the following sections the paper examines how widening access to transitional justice trials in BiH has not only assisted in the formal legal process, but has brought new spaces of justice into being through education programmes, transnational connections and innovative forms of political participation. These constitute invented rather than invited spaces of law, where civil society organisations bring into existence new deliberative forms of justice. Critical Geopolitics of Justice 13 The distancing of transitional justice has been a particular issue in the case of the international response to the fragmentation of Yugoslavia and, in particular, the war in BiH between 1992-5. The abstraction of judicial instruments from the context of the crimes, both spatially and temporally, has increased the necessity for forms of public outreach to generate understanding of, and cooperation with, the institutions of transitional justice. Exploring this process requires a consideration of the history of international involvement in addressing the violence of the Bosnian war. But in doing so it is important to avoid presenting a neat historical narrative of the international response to the conflict, since these protean historical and geographical events are only intelligible through their complexity and specificity. In order to challenge dominant narratives as essential truths scholars have drawn on post-structural political theory to present a critical geopolitics of the conflict, which illustrates the competing and coexisting discourses that framed the military and political strategies during the conflict and post-conflict periods (see Campbell 1998; O Tuathail 1996; O Tuathail 2002). As Merje Kuus (2007, 10) points out, discourses do not ‘cause’ a particular judicial outcome, but rather “frame political debate in such a way as to make certain policies seem reasonable and feasible while marginalizing other policy options as unreasonable and unfeasible.” By exploring these intertwining discourses we begin to see how the separation of transitional justice mechanisms from Bosnian society was a necessary part of the operation of intervention. 14 The first discursive frame is that of national security. The initial political and military confrontations in BiH in 1992 were framed by nationalist leaders (both within BiH and in other former Yugoslav republics) in terms of competing understandings of national security, structured around mutual fear of minority status in new state territorialities. Political groups representing Bosnian Muslims (or Bosniaks) and Croats feared Serb political dominance in what remained of the Yugoslav state (following the secession of Croatia and Slovenia in 1991). In contrast, Serb nationalist political parties, in particular the Srpska demokratska stranka (SDS) led by Radovan Karadžić, feared minority status in an independent BiH. These fears fuelled antagonistic political rhetoric which transformed into violence following the Bosnian Government’s declaration of independence in April 1992 (see Silber and Little 1996). Over the following months Serb military and paramilitary forces, supported by well- armed Yugoslav People’s Army (JNA), attempted to create an ethnically homogenous territory within BiH, called the Republika Srpska (or RS) (Kadrić 1998). This action involved the expulsion or execution of non-Serb populations, the besieging of key cities such as Sarajevo and Goražde, and the holding of prisoner populations in a series of camps in Prijedor, Brčko and Bijeljina, amongst others (Dahlman and O Tuathail 2005a). Similar atrocities, if on a smaller scale, were committed by groups claiming to represent Bosniak or Croat national interests, in particular in the southern Bosnian towns of Konjic, Mostar and Čelebići. The second discursive frame was humanitarianism. Western political elites portrayed the violence as a humanitarian disaster (O Tuathail 2002), focusing attention on the plight of Bosnian citizenry in particular in the besieged streets of Sarajevo. This 15 biopolitical label drew attention to the outcome of violence and the failure of the state to perform its function of protecting its citizenry, but it simultaneously erased a conception of victim and perpetrator. Presenting the conflict in these terms allowed for an institutional response that focuses on the distribution of aid and promotion of NGOs. The humanitarian label was sustained through explanations by politicians in the US and UK that the violence was a consequence of ‘ancient ethnic hatreds’ or ‘primordial evil’, labels that present conflict as biologically-predetermined and an essential part of a Balkan temperament rather than as a political manoeuvre. The outcome of this primordial understanding of the violence was an attempt to identify a division of Bosnian territory which would appease all warring parties (Campbell 1998). In doing so, we can see how the rubric of humanitarianism only sustained the discursive framing of the conflict in terms of national security. Alongside the entwined discourses of national security and humanitarianism there circulated a third discursive frame of the Bosnian war: accountability. The images of war crimes broadcast through international media networks, in particular the pictures of emaciated Bosniak men behind barbed wire at the Omarska prison camp in 1992, jarred with discourses of national security or humanitarianism. The organic narrative of violence encapsulated by a humanitarian interpretation of the conflict was challenged by the outpouring of public and political fury provoked by reports of war crimes and displaced people. As Ó Tuathail (1996) notes, allegations of genocide in Europe raised the spectre of the impotence of Western Allies in the face of the Holocaust in World War Two and the subsequent commitment to ‘never again’ stand by while atrocities on such scale were committed. As a response to these apparent 16 violations of the Geneva Conventions in October 1992 the UN Security Council established a commission of experts to investigate alleged war crimes in BiH. The findings of this commission led to pressure within the UN to establish a Tribunal to hold individuals to account for the acts against civilians in BiH. The material outcome of these pressures was the establishment by the United Nations Security Council of the International Criminal Tribunal for the Former Yugoslavia (ICTY) through Resolution 827 on May 25 1993. The Resolution tasked the tribunal with “prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia” from January 1991 onwards (United Nations Security Council 1993). As Hazan (2004) has illustrated, this institutional response was shaped by the dominant discourse of the conflict of national security. The initial work of the Tribunal was hampered by poor resourcing and internal disputes between the panel of international judges and the first chief prosecutor, Richard Goldstone. A particular criticism levelled by the jurists was the extremely slow pace of initial indictments and the focus placed by Goldstone on lower-level military officers rather than targeting wartime leaders. In this respect, Hazan (2004, 61) suggests that Goldstone was performing a political function for Western leaders by intimidating the leadership of warring parties, but “stopping short of indicting them.” In addition, local and national courts and prosecution offices across the territory of the former Yugoslavia began (and continued) conducting war crimes cases lists of alleged perpetrators. As Mallinder (2009) notes, minority groups perceived these practices as reflecting the political interests of the demographic majority in a particular locality. In February 17 1996 the Bosnian Government formally agreed to halt the arrest of individuals who has been indicted by the ICTY, in a set of procedures know as the Rules of the Road. The discourse of national security was further emboldened through the internationally-brokered resolution to the violence in BiH. As the work of Campbell (1998) has demonstrated, the Dayton Peace Accords (DPA) in 1995 emphasised a commitment to ethnically-defined territories, albeit with the paradoxical guarantee of the right of return for refugees and internally displaced people. While this outcome reproduces a discourse of national security, it could be argued that concerns over accountability acted as a backdrop to Dayton negotiations, in particular since Radovan Karadžić and Bosnian Serb Army General Ratko Mladić were indicted for a second time during the negotiation process (see Goldstone 2000, 107-8) and compliance with the ICTY was written in to Annex 6 (Chapter 3) of the resulting Peace Accords. But despite these moves, in the immediate post-conflict period the momentum for the judicial response to the violence was lost, reflected in the shift to language of democratisation, in particular prioritising democratic elections that strengthened nationalist political parties (see Donais 2000) and the weak terms of engagement for the NATO implementation force (I-For) which acted as a barrier to the arrest of indicted individuals.3 This outcome ensured that the judicial instruments designed to hold war criminals to account were located at a distance to the localities at which the crimes took place. The devolved nature of the Bosnian state, and the subsequent strength of the entity-level governments, resulted in political stagnation in creating a single legal entity capable 18 of performing war crimes trials in BiH (Jeffrey, 2009). The powers of the international community have been concentrated in the Office of the High Representative (OHR), and singularly in the figure of the High Representative, an appointee of the Peace Implementation Council (PIC). Since 1997 the High Representative has held Bonn Powers, named after the PIC conference at which they were authorised, which grant executive and legislative powers over the Bosnian state in the name of implementing the Dayton Agreement. In the face of “centrifugal forces”, the OHR has used Bonn Powers to make basics reforms to elements of the education system, the divided military and stagnating system of government (International Crisis Group 2007). A critical study of the geopolitical framing of the war in BiH can therefore draw a connection between the international endorsement of discourses of national security, and the resultant fragmented state dependent upon international supervision with strong executive and legislative powers. The War Crimes Chamber One of the key impositions made by then High Representative Lord Paddy Ashdown on 3 July 2002 was to impose The Law on the Court of Bosnia and Herzegovina, legislation that established for the first time the possibility of a state level court in BiH. This was realised in March 2005 through a joint initiative between the ICTY and OHR established the War Crimes Chamber of the Court of Bosnia and Herzegovina. This organisation, operating within the Criminal Division of the Court of Bosnia and Herzegovina, accepted transferred cases from the ICTY in addition to commencing new prosecutions and investigations. 19 There are a number of important facets to the WCC. First, from the outset this body has been supported by international personnel within both the Prosecutor’s Office and Judiciary. This involvement is unpopular with domestic political parties, in particular within the RS, and in October 2009 the Bosnian Government ordered for international participation to cease, though was over-ruled by the High Representative. Second, the trials take place within the Court of Bosnia and Herzegovina building, located five kilometres south of the centre of Sarajevo (see Figure 1). The building, funded by the European Union and Government of Japan, contains eight court rooms each constructed and equipped through funding from multilateral and bilateral sources. Figure 2 shows Courtroom 6, a high security facility funded by the Belgian Government and used in high profile war crimes cases. [Figure 1 and Figure 2 about here] Through analysis of the discursive framing of the violence in BiH we can discern three reasons for the necessity of a public outreach initiative involving NGOs in fostering understanding in the work of the WCC. First, the WCC is a new institutional response to the violence of the conflict and consequently it may be unfamiliar to communities in BiH. Certainly the PIOS official suggested that there is a longer legacy of perceiving courts as removed from wider society in the former Yugoslavia: The idea was that people felt more comfortable contacting an NGO than contacting a court, people were concerned about contacting courts, they were not seen as accessible, this was a 20 legacy of the Yugoslav past where courts were always seen as up here [gestures with her hands]. So people didn’t want to contact the court.4 Second, the origins of the WCC in OHR decision-making and the subsequent involvement of an international judiciary has led to the Court being seen as international imposition by some segments of the Bosnian public. This is often not meant as a criticism; indeed many of the NGO officials I interviewed for this research saw the retention of an international judiciary as crucial to the continued functioning of the court. However, the international presence was identified by both the Bosnian Court official and the ICTY Liaison Officer as a key reason to promote public outreach in order to build community trust in the judicial process. Finally, the establishment of the WCC was strongly opposed by nationalist politicians in BiH, in particular Milorad Dodik’s Savez nezavisnih socijaldemokrata (SNSD) party in the RS. This domestic hostility to the WCC, coupled with the novelty of this institutional form and the perception of international imposition, strengthened attempts within the court to establish some form of public outreach initiative5. This came to fruition in 2005 with the creation of PIOS as part of the CBiH, and specifically with attempts to create links with Bosnian NGOs working in the fields of human rights, education and reconciliation. Invited and Invented Spaces of Justice The Court Support Network (CSN) was established by PIOS in 2005. Its mission was “to integrate the mission of the Court into the wider Bosnian community,”6 an 21 objective that one of the instigators described as “more than PR.”7 The Court approached five human rights NGOs located in the Bosnian towns of Sarajevo (Žene ženama), Mostar (Centri civilnih inicijativa or CCI), Prijedor (Izvor), Bijeljina (Helsinški komitet) and Tuzla (Forum građana). The idea was to reach a wide geographical spread and through these organisations establish a sustainable network which would spread information about the Court, and in particular the WCC.8 The original CSN programme was funded by the Court for six months and provided resources to each NGO to dedicate two staff to work on networking activities. One of the key objectives behind the CSN was for the organisations involved to develop their own network, and thus the reach of the court would extend into Bosnian communities through the operation of civil society groups. After the end of the first phase of funding this had not been achieved and one of the officials involved remarked that the lack of follow-up funding was a reflection of changing priorities in PIOS away from outreach work and towards public and media relations.9 But despite the weakening of the formal network approach, the participant NGOs have continued to work with the Court (and in particular the WCC) and have remained in loose affiliation while the concept of the CSN remains a core part of the Court’s public relations materials . As part of this research project I examined the activities in detail of two of the organisations within the CSN: CCI in southern town of Mostar and Helsinški komitet in the northern town of Bijeljina. Through the interviews with these organisations, and studying their promotional and policy documentation, ambiguities emerge as to the position and nature of their activities. While providing logistical assistance to the trial process, these organisations also offer space for critique and rejection of the 22 mechanisms of transitional justice initiated in BiH since the end of the war. In order to illustrate these diverse functions I am drawing on the framework introduced by Miraftab and Wills (2005) to group them under the headings ‘invited’ and ‘invented’ spaces of justice. As discussed earlier in the paper, these labels provide a sense of the agency of the CSN institutions as they operated both within and beyond the roles prescribed by PIOS and the WCC. Consistent with the main argument of the paper, these functions illustrate the significance of non-legal institutions and practices in shaping the legal process and offering alternative spaces of transitional justice. I will explore each in turn. Invited Spaces “The Court Support Network was meant to be for all the [Bosnian] public” related an official from the CCI, “but it was mostly used by potential witnesses.”10 This comment encapsulates what was perceived by both those managing and participating in the CSN: that its primary focus was on encouraging and supporting witnesses of war crimes to come forward and testify at the WCC. Part of this function was logistical, providing the Court and, in particular, the prosecutor’s office with assistance in getting in touch with witnesses, assisting with transportation arrangements and keeping contacts open between witnesses and court officials. But this narrow interpretation of the role of the CSN overlooks the ways in which these apparently mundane practices are reshaped by the political and economic geographies of post-Dayton BiH. In particular two challenges confronted the CSN organisations: the prioritisation of social and economic considerations over participation in the court 23 and the stigmatisation of participation by sections of the community that resist the establishment of a state court and/or institutions of transitional justice. In the first case the representative from CCI was explicit that participation in trial processes was a low priority for those struggling to survive in the tough economic conditions of contemporary BiH where GDP per capita in 2009 was only $7764 (UNDP 2009a): So our idea was that if you have some basic problems, like of you cannot feed your children how can you decide to go to the court of BiH and be a witness, I mean this is not a priority in your life.11 In order to confront this issue the organisation sought to provide a broad approach to witness support that understood the importance of economic, social and psychological factors in shaping decision making processes. One activity undertaken by CCI was informing witnesses of their potential eligibility to receive a small state pension on behalf of deceased relatives who were recognised as Civil Victim of War.12 The representative explained the struggle in convincing people that they were eligible for this money: When we told them you have a right to this money, they would say “no, who is going to give us money?” You know, people didn’t trust anything. Even if you explain to them the law and their rights, they are sceptical about many things.13 24 These quotations illustrate the disjuncture between the existence of certain legal or judicial rights, and their adoption by potential witnesses. The simple invitation to participate – whether in the WCC process or through the civil victim status – was insufficient to ensure involvement. By exploring the individual motivations for individual participation and coupling this with psychological barriers to trust in authority structures the CSN was able to foster participation. The CSN were adept at presenting the activities of the WCC as embedded in the social context of BiH post- Dayton . This point was further enforced through the interview comments regarding the wider Bosnian political landscape and its effect on participation rates. The interviewees spoke of the significant role played by the dominance of nationalist political parties in shaping participation in the WCC. In particular they pointed to the role of mythical tales of heroic war time leaders in shaping public opinion. To one extent this reflects the sustained primacy of discourses of national security in shaping domestic politics in BiH over the last fifteen years. But the interviews suggested that this was also reflective of the distanced nature of transitional justice over this period. The absence of an ICTY-led public outreach initiative until 1999 was blamed by a representative from Helsinški komitet for providing the space for the political manipulation of transitional justice in BiH: […] it was a basic mistake they [the ICTY] made in the beginning. The ICTY was established in 1993 but the outreach office of the ICTY was established in 1999. These six years were 25 used by political leaders in the regionto use cases in front of the ICTY for their political agendas.14 The perceived failure of the ICTY to reach out to potential witnesses in the past therefore reverberated into the present through the unfavourable political contexts for participation in the WCC. The CSN NGOs sought to break down this animosity by introducing schemes that foster trust in the WCC, and these initiatives involved a range of economic, psychological and political strategies. For example, CCI teamed up with a mental health NGO to provide psychological support for potential witnesses that faced the dual challenge of revisiting past traumas while risking being labelled a traitor by segments of their community on account of their participation with the WCC. In sum, the trial assistance offered by the CSN was crucial to the operation of war crimes trials at the WCC in Sarajevo. By embedding the trial process in the economic and social context in contemporary BiH, the NGOs were able to foster participation in the legal process. Contrary to abstracting law from society, this work involved the careful grounding of these processes in the communities and localities within which the crimes took place and in which victims and witnesses continue to seek redress. Invented Spaces In addition to the work supporting the trial process, the CSN organisations have been performing a broader role outside the operation of the WCC since 2005. Through a range of workshops, seminars and cultural events, the NGOs were seeking to foster 26 public debate concerning the nature of transitional justice in BiH. These actions were ‘invented’ as they demonstrated the ability of these organisations to operate outside the legal process and summon into existence new spaces of deliberation over the nature of transitional justice in BiH. These practices illustrated a more nuanced spatiality of justice in Bosnia. Perhaps most explicitly they bring into view the range of physical spaces that are drawn upon as part of the judicial process. Coffee shops, homes, university campuses and individual human bodies are brought into the practice of transitional justice through these improvised activities. But they also illustrate the enrolment of a range of imaginative geographies that are enrolled into the practice of transitional justice, such as universal human rights, cosmopolitan senses of belonging and nostalgia for Yugoslav solidarity. While these activities often supported the approach of the WCC they also included opportunities for critique and the hope for alternative judicial arrangements in the future. By their disparate and, at times, improvised nature these activities defy easy categorisation, but in order to illustrate aspects of their effects I will examine two processes: community workshops and university education. First, the NGOs sought to localise the legal process by organising workshops involving victim groups, legal representatives and NGO staff within the communities in which the crimes took place. Such events involved prosecutors talking through the evidence as it was presented and jurists explaining the sentence (if passed) and fielding questions concerning the trial process. The interactive component of the event posed logistical problems for the NGOs, since there was often high demand amongst victim groups to attend and there was resistance from NGO staff to turn people away. 27 The success of this format has seen it adopted by the ICTY which has recently organised similar workshops in BiH to explain case decisions. Of course, such events are not simply a transfer from legal experts to local communities. The NGO representatives discussed how new prosecutions had occurred after victim groups had approached prosecutors, emboldened by hearing about successful prosecutions in other cases. While the trial workshops required considerable involvement of the WCC and prosecutor’s office, the NGOs stressed the forms of local knowledge and contacts required to organise such events. Through family connections, personal experiences and professional relationships the NGOs had developed networks with war crime victims that were vital in securing their participation in the workshops. These connections allowed the NGOs to bring together antagonistic victim groups into single-site workshops: But the biggest issue is actually the preparation work. It is a much bigger issue to get in the same place people from different ethnic communities who are perceived as victims. For example you have to spend three days drinking rakija [plum brandy] with [name] if you want him to come. Or in some villages you have to convince [name] to come to the Čelebići case. It just needs time. And in some cases they have the experience other from other NGOs who come and say ‘we need three victims to talk about something’, but that is not how it works, they are not on standby.15 This comment encapsulates the forms of knowledge brought into the process of transitional justice by the CSN NGOs. It also demonstrates the ways in which the 28 space of transitional justice extended beyond the hired workshop venue, and brings into view the rakija stall, the kafana (coffee shop) and the homes of victims. But this account illustrates more than the micro-geographies through which public outreach operates; it also reflects a different conception of the figure of the individual within judicial programmes. The reference to ‘not being on standby’ illustrates the ways in which participation was conceived by the Helsinški komitet as a human process of negotiation that required established bonds and trust rather than a mechanistic process of participation in a formal legal process. The NGOs stressed that the localisation of judicial processes was more than a ‘communicative’ strategy; it sought to shift the focus of transitional justice from perpetrators onto victims. The retributive judicial approach employed by both the ICTY and the WCC has, they argued, orientated attention on those who committed crimes as opposed to those who had been victims. This situation has been exacerbated by the close allegiance between media outlets and nationalist political parties, a relationship that the NGOs felt had promoted the heroism of wartime leaders and served to question the veracity of reports of mass atrocities during the war. One case that was repeatedly cited during the research process was that of Radovan Stanković. Stanković was a fighter in the Bosnian Serb Army who was sentenced in March 2007 to 20 years’ imprisonment for the crimes of systematic rape and imprisonment of women in what was termed Karamanova kuća (Karaman’s house) in Foća municipality during 1992. But in May 2007 Stanković escaped from prison, since he was sent to serve his sentence in Foća, a place where he had previously claimed that it would be easy to escape on the basis of his friends and contacts (see Balkan 29 Investigative Reporting Network 2007). This case illustrates the weaknesses in the Bosnian prison system; where despite plans there is no state-level prison (penal governance is devolved to the RS and the Federation). But more significantly, subsequently Stanković has refuted the charges through communication with RS newspapers. The effect of these processes was explained by the representative from Helsinški komitet: In the RS there was no public space given to the presentation of facts. There is enough space given for Stanković to send letters from wherever he lives now, explaining that this is an attack on the Serb people and he is not guilty, and they gave him two pages in the newspapers. But no one is giving space to those who suffered. To the girl who is now 26 years old, or 27, and she is more dead than alive because she was kept for three months in Karaman’s House and was systematically raped by more than 20 soldiers. The Stanković case provides an acute example of the coupling of judicial failure and the capture of news media by the interests of hard-line nationalist political parties. The response of the NGOs has been to provide spaces such as the workshops through which victims may meet and challenge the formal judicial structures through debate and questions. Part of this process relates to a desire to reshape the ‘invited’ spaces of justice through changes in the penal strategy, providing greater clarity in sentencing decisions and improving specific aspects of access to the judicial process. But more significantly, these activities also illustrate the way in which the CSN envisages a different form of justice that shifts attention away from retribution and orientates attention on restorative notions of deliberation and reconciliation. One of the key points made by each of the NGOs is that the workshops must be attended by 30 representatives from each of the parties in the conflict, and mix civilians with veterans. As the representative from CCI emphasised, “we have all been victims in some part of our lives.” This was in part a reference to her own personal experience, but also drew attention to a key point: that the CSN was attempting to reconceptualise justice as a shared experience rather than a legal process. The second set of activities that brought into existence invented spaces of justice related to education. All the CSN NGOs have strong education components within their portfolio of activities. For Helsinški komitet this involved university-level education in transitional justice, exercised through a series of different channels. First, the organisation has sought to introduce the specifics of the WCC into law degrees across the RS: We made an announcement through law students in the RS, so I did several groups throughout the year bringing them to the court, to talk to the president of the court, the main prosecutor, to see a trial and how it is organised and to see the court, witness preparation and protection and to talk to other NGOs who are working with victims. And we had more than 3000 students pass this.16 As stated earlier in the discussion, there is considerable political animosity towards the WCC in the RS so these activities mark a considerable achievement in sharing information concerning the legal processes in BiH. But in order to build on this success the organisation had developed a second approach to university-level education: designing a module on transitional justice and human rights to be run in the University of Bijeljina. During the interview the NGO official said with a smile that 31 they had described the module as concerning “intercultural understanding and non- violent communication”17 since this was unlikely to raise objections from university administrators, in a way that mentioning the WCC or transitional justice might. This initiative began with 83 students in October 2009 but there are hopes to expand: We are starting with the Bijeljina Faculty, then Mostar is going to start Eastern Sarajevo, Pale they are going to start next year and then Sarajevo is going to start next year. […] On the other side we are currently working on making a group of professors from law schools from five different universities, political science departments, the journalism departments, and social sciences and we are going to work with them for one year to make it possible to see how much of transitional justice they can actually put in a formal education frame, what they would need, on what they could agree, and how to teach it. This focus on university education illustrates the significant emphasis placed on setting the terms of public debate concerning transitional justice. One of the repeated concerns of NGOs members both within and beyond the CSN was the media presentation of transitional justice as ‘simply’ the actions of the ICTY and WCC, rather than discussing the nature and implications of different approaches to justice after war. In the absence of a unified commemoration of the conflict and the associated fragmented historical narratives of the past, these approaches placed the WCC in a historical and theoretical context. This approach sought to shift attention away from the particulars of the BiH context and think through more cosmopolitan understandings of justice and rights. This ‘invented’ space moves beyond the physical realm of the campus and seminar room, to confront the imaginative geographies enrolled in processes of transitional justice. 32 Drawing the distinction between invited and invented spaces of justice illuminates the role played by the CSN in the operation of transitional justice in BiH. While these accounts provide a vivid illustration of the importance of civil society actors in facilitating the trial process, they also demonstrate how these organisations conceive of justice in radically different ways to those offered through the formal legal institutions. This does not mean law is marginalised, the NGOs considered its operation vital to generating a sense of accountability amongst victim population. Instead, the legal process was presented as a starting point which provoked public debate and the potential to bring victim groups together to discuss common concerns. Through the legal process the CSN was able to create a series of spaces of justice as a more deliberative practice. Conclusions Towards the end of the fieldwork process I had arranged a meeting with the Programme Manager of UNDP BiH’s Access to Justice programme at their head office in Sarajevo. This initiative provides assistance to the CBiH through training of the judiciary, capacity-building Bosnian state agencies and providing material support for the court (such as office furniture and IT equipment). After we had introduced ourselves I explained the purpose of my research and my interest in the WCC’s outreach projects. “Ah,” replied the Programme Manager, “you are interested in questions of ‘soft’ justice, we are currently interested in questions of ‘hard’ justice.”18 The Programme Manger’s use of this distinction was a surprise considering the 33 UNDP’s commitment to fostering civil society engagement with processes of transitional justice in BiH (see UNDP, 2009b). But in doing so the UNDP official was deploying well-established categories demarcating legal from non-legal approaches. But these labels do not simply describe judicial practice but structure regimes of thought on transitional justice. The distinction of ‘hard’ and ‘soft’ justice supports the conception that there is a possibility of separating these two arenas, where the ‘hard’ legal processes operate in isolation from the ‘soft’ social, political and spatial settings within which they are embedded. This separation is reflected in the wider scholarly study of transitional justice that has explored the nature of legal processes at the expense of either wider non-legal activities or the constructed nature of the legal/non- legal binary. This paper has offered a corrective by examining the contribution of a geographical analysis on the study of transitional justice in BiH. There are two specific outcomes from this argument. Firstly, the study of the critical geopolitics of the conflict and post-conflict periods illuminates the spacing of transitional justice in BiH. The presentation of the violence by war-time leaders as a necessity to ensure national security, and the validation of these imaginaries at the Dayton Peace Accords, ensured that legal processes of justice remained remote from the locations where the crimes took place. This distance was reflected through the physical location of the ICTY at The Hague and the executive control over the process by international supervisory agencies in Bosnia (most notably the OHR). But perhaps most profoundly, this distance is reflected in the prominence given to legal processes as the primary implement of justice. This form of judicial response has set the tone for the nature of 34 post-conflict justice in BiH, specifically focusing on a retributive programme that seeks to hold war criminals to account, rather than a restorative process that seeks to establish shared truths and build trust between antagonistic groups. As a second geographical lens this paper has examined how the political and scholarly focus on legal processes has marginalised a series of non-legal spaces, actors and practices. Through the examination of the prosaic operation of the CSN a more complex spatiality of transitional justice emerged. Using the analytical distinction developed by Miraftab and Wills (2005), these were explored through the framework of ‘invited’ and ‘invented’ spaces of justice. This brought to the fore the centrality of CSN organisations in facilitating the work of the WCC by supporting witness testimony and establishing contact with victims. But the work of the CSN extended beyond these instrumental practices, since they were using their contacts with victim groups to establish practices of justice that were operated beyond the formal legal process. These activities work through a series of geographies: such as the coffee shop, the seminar room, the campus and the human body. But inventing such improvised spaces of deliberation over justice required conveying normative arguments for the kinds of transnational solidarity and rights that were at the heart of transitional justice programmes. In this sense invented spaces of justice sought to look beyond the BiH state territory and foster conceptions of common humanity and transnational belonging. In contrast to the retributive mode of formal judicial practices, the improvised activities were often structured around deliberation and confrontation. This more agonistic approach provided space for victims to offer 35 critiques of the formal trial processes and sought to embed legal mechanisms in the context of wider scholarly and policy reflection on the nature of justice. Notes 1 A central component of the completion strategy of the ICTY comprises the transfer of cases against “intermediate and lower-level accused to competent national jurisdictions” in BiH, Croatia and Serbia (ICTY, 2010). While sensitive cases will remain under the jurisdiction of the WCC, other war crimes cases in BiH are expected to be devolved to courts in the Republika Srpska and the Muslim-Croat Federation. 2 I am grateful to an anonymous referee for bring this literature and issue to my attention. 3 The first arrest by the NATO-led multinational force in Bosnia (then S-For) was Milan Kovacević on 10 July 1997. 4 PIOS Official, Sarajevo October 8th 2009. 5 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 6 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 7 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 8 PIOS Official, Sarajevo October 8th 2009. 9 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 10 Member of Centre for Civil Initiative Official, Mostar October 12th 2009. 11 Member of Centre for Civil Initiative Official, Mostar October 12th 2009. 12 The legislation differs in the RS and Federation, but both offer pensions for victims of war that suffer ‘60% or more’ physical disability including death or disappearance (see FBiH Law on Principles of Social Protection, Protection of Civil Victims of War and Protection of Families with Children, article 54 Official Gazette of the FBiH no. 36/99 and The Law on Protection of Civil Victims of War , article 2 Official Gazette of RS, no. 25/93) 13 Member of Centre for Civil Initiative Official, Mostar October 12th 2009 14 Member of Helsinški komitet, Bijeljina October 18th 2009. 15 Member of Helsinški komitet, Bijeljina October 18th 2009, the names of two prominent victims have been removed to protect anonymity. 16 Member of Helsinški komitet, Bijeljina October 18th 2009. 17 Member of Helsinški komitet, Bijeljina October 18th 2009. 18 Programme Manager of UNDP Access to Justice BiH, Sarajevo October 15th 2009. 36 References Agnew J 1994 The Territorial Trap: The Geographical Assumptions of International Relation Theory. Review of International Political Economy 1: 53-80 Balkan Investigative Reporting Network 2007 Stanković Still at Large (http://www.bim.ba/en/65/10/3139/) Accessed March 10 2010 Blomley N 2008 Making Space for Law. in Cox K, Low M and Robinson J eds The Sage Handbook of Political Geography Sage, London Blomley N, Delaney D and Ford R T 2001 Preface: Where is Law? in Blomley N, Delaney D and Ford R T eds The Legal Geographies Reader: Law, Power, and Space. Blackwell Publishers, Oxford Campbell D 1998 National Deconstruction: Violence, Identity and Justice in Bosnia. University of Minnesota Press, Minnesota Clark P 2007 Hybridity, Holism and ‘Traditional’ Justice: The Case of the Gacaca Community Courts in Post-Genocide Rwanda. George Washington International Law Review 39: 765-838 Cornwall A 2002 Locating Citizen participation. IDS Bulletin 33: i-x Dahlman C and O Tuathail G 2005a Broken Bosnia: The Localized Geopolitics of Displacement and Return in Two Bosnian Places. Annals of the Association of American Geographers 95: 644-62 Delaney D 2001 Introduction: Globalization and Law. in Blomley N, Delaney D and Ford R T eds The Legal Geographies Reader: Law, Power and Space. Blackwell, Oxford 252-5 37 Donais T 2000 Division and Democracy: Bosnia's Post-Dayton Elections. in Spencer M ed The Lessons of Yugoslavia. JAI Elsevier Science, London 229-58 Foucault M 1980 Power/Knowledge. Pantheon, New York Goldstone R 2000 For Humanirty Reflections of a War Crimes Investigator. Yale University Press, New Haven Gregory D 2007 Vanishing Points. in Gregory D and Pred A eds Violent Geographies Fear, Terror and Political Violence. Routledge, New York Hazan P 2004 Justice in a time of war: the true story behind the international criminal tribunal for the former Yugoslavia. Texas A & M University Press, College Station Herbert S 1996 The geopolitics of the police: Foucault, disciplinary power and the tactics of the Los Angeles Police Department. Political Geography 15: 47-59 Hodžić R 2010 Living the Legacy of Mass Atrocities: Victims' Perspectives on War Crimes Trials. J Int Criminal Justice 8: 113-36 Holbrooke R 2008 The face of evil. The Guardian, London International Criminal Tribunal for the former Yugoslavia 2010 Mandate and Jurisdiction (http://www.icty.org/sid/320) Accessed March 5 2010 International Crisis Group 2005 Bosnia's Stalled Police Reform: No Progress, No EU. International Crisis Group, Sarajevo/Brussels International Crisis Group 2007 Ensuring Bosnia’s Future: A New International Engagement Strategy. International Crisis Group, Sarajevo/Brussels Jeffrey A 2009 Justice incomplete: Radovan Karađžić, the ICTY and the spaces of international law. Environment and Planning D: Society and Space 27: 387- 402. 38 Kadric J 1998 Brcko: Genocide and Testimony. Institute for the Research of Crimes Against Humanity and International Law, Sarajevo Kerr R and Mobekk E 2007 Peace and Justice Seeking Accountability After War. Polity Press, Cambridge Kuus M 2007 Geopolitics Reframed: Security and Identity in Europe's Eastern Enlargement. Palgrave Macmillan, New York and Houndmills Kuus M Forthcoming Geopolitics, Bureaucracy and Place: The Case of the European Quarter. Global Networks: Journal of Transnational Affairs Latour B 2010 The Making of Law. Polity Press, Cambridge Marston S 2004 Space, culture, state: uneven developments in political geography. Political Geography 23: 1-16 Mallinder L 2009 Retribution, Restitution and Reconciliation: Limited Amnesty in Bosnia-Herzegovina Queen’s University Belfast, unpublished thesis McEvoy K 2007 Beyond legalism: Towards a thicker understanding of transitional justice. Journal of Law and Society 34: 411-40 Megoran N 2006 For ethnography in political geography: Experiencing and re- imagining Ferghana Valley boundary closures Political Geography 25: 622-40 Miraftab F and Wills S 2005 Insurgency and Spaces of Active Citizenship. Journal of Planning Education and Research 25: 200-17 O Tuathail G 1996 Critical Geopolitics. Routledge, London O Tuathail G 2002 Theorizing practical geopolitical reasoning: the case of the United States' response to the war in Bosnia. Political Geography 21: 601-28 Shklar J N 1986 Legalism: law, morals, and political trials. Harvard University Press, London 39 Silber L and Little A 1996 The Death of Yugoslavia. Penguin Books Ltd, London Sriram C and Ross A 2007 Geographies of Crime and Justice: Contemporary Transitional Justice and the Creation of 'Zones of Impunity'. The International Journal of Transitional Justice 1: 25-65 Teitel R 2003 Transitional Justice Genealogy. Harvard Human Rights Journal 69: 69-94 UNDP 2009a Human Development Report Bosnia and Herzegovina. United Nations Development Programme, Sarajevo UNDP 2009b Transitional Justices Guidebook for Bosnia and Herzegovina. United nations Development programme, Sarajevo UNDP 2010 Bosnia and Herzegovina: Supporting National Capacities in Transitional Justice for Bosnia and Herzegovina (http://europeandcis.undp.org/governance/hrj/show/158DB1B0-F203-1EE9- BEC1296F057C98A6) Accessed March 5 2010 United Nations Security Council 1993 Resolution 827 (http://www.un.org/Docs/scres/1993/scres93.htm) Accessed February 18 2010 United Nations Security Council 2004 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. United Nations, New York 1-24 
work_k6sxhrqzeff5pbvm5q26lwyqx4	----	Creative Commons Attribution-ShareAlike 3.0 Unported License. | 01 law .. - Jan 01 1970 02:00:00 AM cks_2011_law_art_001.pdf 480KB Jan 31 2013 01:45:19 PM cks_2011_law_art_002.pdf 458KB Jan 31 2013 01:45:19 PM cks_2011_law_art_003.pdf 409KB Jan 31 2013 01:45:20 PM cks_2011_law_art_004.pdf 572KB Jan 31 2013 01:45:20 PM cks_2011_law_art_005.pdf 411KB Jan 31 2013 01:45:20 PM cks_2011_law_art_006.pdf 424KB Jan 31 2013 01:45:20 PM cks_2011_law_art_007.pdf 350KB Jan 31 2013 01:45:20 PM cks_2011_law_art_008.pdf 214KB Jan 31 2013 01:45:20 PM cks_2011_law_art_009.pdf 286KB Jan 31 2013 01:45:20 PM cks_2011_law_art_010.pdf 490KB Jan 31 2013 01:45:20 PM cks_2011_law_art_011.pdf 310KB Jan 31 2013 01:45:20 PM cks_2011_law_art_012.pdf 319KB Jan 31 2013 01:45:20 PM cks_2011_law_art_013.pdf 230KB Jan 31 2013 01:45:20 PM cks_2011_law_art_014.pdf 407KB Jan 31 2013 01:45:20 PM cks_2011_law_art_015.pdf 250KB Jan 31 2013 01:45:20 PM cks_2011_law_art_016.pdf 309KB Jan 31 2013 01:45:20 PM cks_2011_law_art_017.pdf 418KB Jan 31 2013 01:45:20 PM cks_2011_law_art_018.pdf 544KB Jan 31 2013 01:45:20 PM cks_2011_law_art_019.pdf 302KB Jan 31 2013 01:45:20 PM cks_2011_law_art_020.pdf 222KB Jan 31 2013 01:45:20 PM cks_2011_law_art_021.pdf 420KB Jan 31 2013 01:45:20 PM cks_2011_law_art_022.pdf 311KB Jan 31 2013 01:45:20 PM cks_2011_law_art_023.pdf 587KB Jan 31 2013 01:45:20 PM cks_2011_law_art_024.pdf 697KB Jan 31 2013 01:45:20 PM cks_2011_law_art_025.pdf 349KB Jan 31 2013 01:45:21 PM cks_2011_law_art_026.pdf 554KB Jan 31 2013 01:45:21 PM cks_2011_law_art_027.pdf 307KB Jan 31 2013 01:45:21 PM cks_2011_law_art_028.pdf 503KB Jan 31 2013 01:45:21 PM cks_2011_law_art_029.pdf 299KB Jan 31 2013 01:45:21 PM cks_2011_law_art_030.pdf 311KB Jan 31 2013 01:45:21 PM cks_2011_law_art_031.pdf 271KB Jan 31 2013 01:45:21 PM cks_2011_law_art_032.pdf 253KB Jan 31 2013 01:45:21 PM cks_2011_law_art_033.pdf 546KB Jan 31 2013 01:45:21 PM cks_2011_law_art_034.pdf 554KB Jan 31 2013 01:45:21 PM cks_2011_law_art_035.pdf 589KB Jan 31 2013 01:45:21 PM cks_2011_law_art_036.pdf 367KB Jan 31 2013 01:45:21 PM cks_2011_law_art_037.pdf 441KB Jan 31 2013 01:45:21 PM cks_2011_law_art_038.pdf 489KB Jan 31 2013 01:45:21 PM cks_2011_law_art_039.pdf 537KB Jan 31 2013 01:45:21 PM cks_2011_law_art_040.pdf 530KB Jan 31 2013 01:45:21 PM cks_2011_law_art_041.pdf 291KB Jan 31 2013 01:45:21 PM cks_2011_law_art_042.pdf 297KB Jan 31 2013 01:45:21 PM cks_2011_law_art_043.pdf 264KB Jan 31 2013 01:45:21 PM cks_2011_law_art_044.pdf 422KB Jan 31 2013 01:45:21 PM cks_2011_law_art_045.pdf 392KB Jan 31 2013 01:45:21 PM cks_2011_law_art_046.pdf 314KB Jan 31 2013 01:45:21 PM cks_2011_law_art_047.pdf 290KB Jan 31 2013 01:45:21 PM cks_2011_law_art_048.pdf 404KB Jan 31 2013 01:45:21 PM cks_2011_law_art_049.pdf 452KB Jan 31 2013 01:45:21 PM cks_2011_law_art_050.pdf 364KB Jan 31 2013 01:45:22 PM cks_2011_law_art_051.pdf 335KB Jan 31 2013 01:45:22 PM cks_2011_law_art_052.pdf 383KB Jan 31 2013 01:45:22 PM cks_2011_law_art_053.pdf 505KB Jan 31 2013 01:45:22 PM cks_2011_law_art_054.pdf 310KB Jan 31 2013 01:45:22 PM cks_2011_law_art_055.pdf 292KB Jan 31 2013 01:45:22 PM cks_2011_law_art_056.pdf 469KB Jan 31 2013 01:45:22 PM cks_2011_law_art_057.pdf 581KB Jan 31 2013 01:45:22 PM cks_2011_law_art_058.pdf 350KB Jan 31 2013 01:45:22 PM cks_2011_law_art_059.pdf 349KB Jan 31 2013 01:45:22 PM cks_2011_law_art_060.pdf 333KB Jan 31 2013 01:45:22 PM cks_2011_law_art_061.pdf 373KB Jan 31 2013 01:45:22 PM cks_2011_law_art_062.pdf 370KB Jan 31 2013 01:45:22 PM cks_2011_law_art_063.pdf 320KB Jan 31 2013 01:45:22 PM cks_2011_law_art_064.pdf 325KB Jan 31 2013 01:45:22 PM cks_2011_law_art_065.pdf 357KB Jan 31 2013 01:45:22 PM cks_2011_law_art_066.pdf 327KB Jan 31 2013 01:45:22 PM cks_2011_law_art_067.pdf 297KB Jan 31 2013 01:45:22 PM cks_2011_law_art_068.pdf 404KB Jan 31 2013 01:45:22 PM cks_2011_law_art_069.pdf 432KB Jan 31 2013 01:45:22 PM cks_2011_law_art_070.pdf 370KB Jan 31 2013 01:45:22 PM cks_2011_law_art_071.pdf 429KB Jan 31 2013 01:45:22 PM cks_2011_law_art_072.pdf 364KB Jan 31 2013 01:45:22 PM cks_2011_law_art_073.pdf 444KB Jan 31 2013 01:45:22 PM cks_2011_law_art_074.pdf 504KB Jan 31 2013 01:45:22 PM cks_2011_law_art_075.pdf 289KB Jan 31 2013 01:45:22 PM cks_2011_law_art_076.pdf 393KB Jan 31 2013 01:45:23 PM cks_2011_law_art_077.pdf 347KB Jan 31 2013 01:45:23 PM cks_2011_law_art_078.pdf 560KB Jan 31 2013 01:45:23 PM cks_2011_law_art_079.pdf 396KB Jan 31 2013 01:45:23 PM cks_2011_law_art_080.pdf 351KB Jan 31 2013 01:45:23 PM cks_2011_law_art_081.pdf 348KB Jan 31 2013 01:45:23 PM cks_2011_law_art_082.pdf 285KB Jan 31 2013 01:45:23 PM cks_2011_law_art_083.pdf 344KB Jan 31 2013 01:45:23 PM cks_2011_law_art_084.pdf 681KB Jan 31 2013 01:45:23 PM cks_2011_law_art_085.pdf 589KB Jan 31 2013 01:45:23 PM cks_2011_law_art_086.pdf 598KB Jan 31 2013 01:45:23 PM cks_2011_law_art_087.pdf 354KB Jan 31 2013 01:45:23 PM cks_2011_law_art_088.pdf 392KB Jan 31 2013 01:45:23 PM cks_2011_law_art_089.pdf 357KB Jan 31 2013 01:45:23 PM cks_2011_law_art_090.pdf 669KB Jan 31 2013 01:45:23 PM 
work_kd5tzgihbnbtpn363d4ipyuram	----	25458.indd Book review 1398 The Journal of Clinical Investigation http://www.jci.org Volume 115 Number 6 June 2005 DNA and the criminal justice system The technology of justice David Lazer, editor Massachusetts Institute of Technology Press. Cambridge, Massachusetts, USA. 2004. 424 pp. $67.00. ISBN 0-262-12265-0 (hardcover). 424 pp. $27.00. ISBN 0-262-62186-X (paperback). Reviewed by Max M. Houck West Virginia University, Morgantown, West Virginia, USA. E-mail: max.houck@mail.wvu.edu As is its biological wont, DNA has an evolving role in the justice system. No lon- ger a tool only for the prosecution, DNA testing has become a part of post-convic- tion review, a sometimes-appropriate model for what is considered science by the courts, and may eventually be of assistance to the investigator in the field. DNA’s biologic centrality makes these actual and potential forensic applications at once powerful and concerning. The legal and scientific com- munities debate the utility of forensic DNA analysis from 2 very different professional mindsets. Attorneys de facto are biased because they have clients — they are for or against some proposition brought before the court. They assist their clients through an adversarial process of rhetoric, question- ing, and citing legal precedent. Attorneys have a goal: win. Scientists have a different professional perspective: they are neither for nor against either side — despite the fact that 1 of those sides called them to court — and have no stake in the matter other than representing their science and their work objectively, fairly, and accurately. Scientists communicate through open debate and progress through the incremental accumu- lation of information about the world. In other words, their goal is to understand the world more completely. As a result, attor- neys and scientists tend to view DNA and its forensic uses differently. DNA and the criminal justice system (the title is drawn from a conference of the same name held at the John F. Kennedy School of Gov- ernment in 2000), edited by David Lazer, cap- tures this difference as it explores how DNA is used in the criminal justice system and how it may be used in the future. Read completely, Lazer’s book provides a comprehensive view of the legal issues surrounding forensic DNA testing. The book covers 3 main areas: how DNA testing has affected the criminal justice system; privacy and security concerns; and the creeping use of DNA to predict criminal behavior. Lazer has done a superb job of bal- ancing the chapters and has produced a vol- ume of high quality that will stand as a neces- sary reference for many years to come. The crux of the argument about how DNA has affected the criminal justice system cen- ters on post-conviction DNA testing. With- out a doubt, post-conviction DNA testing has exonerated many innocent individu- als. But does exoneration mean innocence? Just because the defendant’s DNA wasn’t found on crucial evidence doesn’t mean he or she wasn’t involved in the commission of the crime; a sexual assault can still occur without a male ejaculating. “Absence of evi- dence is not evidence of absence,” as the old forensic chestnut goes. The context of the evidence is a primary factor in the interpre- tation of any DNA results. Another lingering question relates to the professional mindset previously discussed — how can DNA results be infallible for exoneration but flawed for conviction? The other side of this coin is reflected in the stubbornness of some prose- cutors who reject post-conviction DNA test- ing because guilty means guilty. These are, notably, biased perspectives and are pitched from the professional stances of those who espouse them. Attorneys that consider DNA testing to be the “gold standard” of science are ignoring what any scientist could tell you: DNA analysis is just another method with benefits and limitations, depending on how you apply it. The debate that courses through the middle portion of the book stems from the potential for abuse of DNA databases. The concern is that medical, genetic, or otherwise personal information will be gleaned from DNA data- bases that reside in the hands of the govern- ment. The DNA profiles used for forensic sci- ence are generated from noncoding sections of the human genome — that is, the sections were specifically chosen because they contain no useful medical or behavioral information. A close understanding of the implications of this fact quells or negates most of the wor- ries expressed in these chapters. What hap- pens to the samples, however, is a more trou- bling situation. Should the DNA samples be retained for potential reanalysis or post-con- viction testing? Yes. Does this place the DNA of those convicted (or those accused, in some cases) in the hands of government? Yes. Are certain demographic groups (i.e., the poor and the non-white) overrepresented in those databases? Sometimes. Interestingly, Sir Alec Jeffries, the scientist who developed the method used in forensic DNA testing, sug- gests that samples from all citizens should be in the forensic database, as that would ensure true equality. The final section of the book discusses the concerns over eugenics and the predic- tion of criminality from a person’s genes. Garland Allen’s chapter on this is excellent and, in my opinion, he settles the argument by concluding, “the kind of data that exist at present simply do not allow us to draw any valid conclusions about a genetic influ- ence in criminal behavior.” The roster of authors is astounding, and each chapter succeeds on its own. Several of the chapters are particularly noteworthy. Fred Bieber’s chapter on the science and technology of forensic DNA profiling is as succinct and well written as any summary of this complicated topic I have read. Mar- garet Berger’s chapter on lessons learned is a well-reasoned argument for post-conviction testing (although her claim that some tra- ditional forensic techniques are “worthless” seems a bit overblown). And finally, Lazer and Michelle Meyer’s consensus and debate sum- mary reifies and condenses the arguments in a thoughtful and concise conclusion. DNA and the criminal justice system is a valuable and insightful reference on law and policy regard- ing the use of DNA in the courts. 
work_ke6aw3gywvbynkxo5of3juehqi	----	Postmodernizm – co to i po co? Teksty Drugie 1993, 1, s. 74-86 Postmodernizm – co to i po co? Zdzisław Łapiński http://rcin.org.pl Zdzisław Łapiński Postmodernizm — co to i po co? O zróżnicowaniu i tempie przemian literatury dwu- dziestowiecznej — szkoły, kierunki, orientacje! — pisano wiele. Dawniej nieco częściej, teraz nieco rzadziej. Dlaczego nie zaskakuje ciągłość tej literatury? Oświecenie, romantyzm, a cóż dopiero pozytywizm, panowały u nas o wiele krócej. Wystarczy położyć obok siebie dobry wiersz z lat trzydziestych, np. Przybosia z Równania serca (1938), i dobry wiersz współczesny, np. Barańczaka z Widokówki z tego świata (1988), aby odnieść wrażenie, że mimo odrębności poetyk, postaw i emocji są to utwory z tej samej epoki i można je opisywać za pomocą tych samych kategorii. Zdumiewające. W ciągu stulecia przewaliły się przez świat dwie wojny powszechne, zagłada groziła całym narodom, wieloma społeczeństwami wstrząsnęły do samych podstaw totalitarne reżimy, a literacka estetyka trwa w głównych zarysach bez zmian. Nie tylko „Przyboś został, tak jak był, Przybosiem". Pozostała sobą także sztuka XX w., na przekór kazaniom o j e j końcu, po Oświęcimiu. Co więcej, literatura tego stulecia oddaje „ducha epoki" nie gorzej niż robiła to literatura dawniejsza, i to nie zawsze wtedy, gdy heroicznie przeciwstawia się złu lub gdy cynicznie mu się wysługuje. Zachowując ciągłość, literatura ta zmienia jednak nieco swe zabarwienie, przesuwają się w niej akcenty, wyodrębniają dwie fazy. W a r t o te fazy http://rcin.org.pl 75 P O S T M O D E R N I Z M — CO T O I PO CO? nazwać, nawet kosztem przetasowania ustalonej terminologii. Choćby po to, aby łatwiej porozumiewać się z historykami innych niż nasza literatur. Jak wiadomo, nowe nazwy są już w użyciu: modernizm i postmodernizm. Ten pierwszy występuje w głównych językach europejskich w dwojakim sensie. W szerszym — obejmuje całą cywilizację nowożytną (ang. modernity). W węższym — nowoczesną wysoką kulturę (ang. moder- nism). Nowożytność jest rozumiana dosyć tradycyjnie — od Renesansu, choć chętnie podkreśla się znaczenie XVII w., ze względu na kartezjanizm i jego następstwa w filozofii i naukach przyrodniczych. Natomiast nowoczesność to te zjawiska kultury, które wystąpiły w ostatnich dekadach XIX w. i trwały mniej więcej do połowy XX w. Na dwa sposoby bywa także rozumiany postmodernizm. Albo jako przełom podobny do tego, który oddzielił nas od średniowiecza, a więc cezura byłaby bardzo głęboka i dotyczyła wszystkich dziedzin życia, albo też j a k o przezwyciężenie pewnych tylko dążeń, głównie intelek- tualnych i artystycznych, panujących w dobie nowoczesności. (Dobrze służą temu w angielszczyźnie dwie odrębne formy rzeczownikowe: postmodernity i postmodernism, natomiast zamieszanie wprowadza przymiotnik postmodern, nie różnicujący owych znaczeń.1) Przekonanie, że nowoczesność już się wyczerpała i że powstaje coś nowego, co trzeba nazwać, i że prowizorycznie można się posłużyć słowem postmodernism — pojawiło się w Stanach na początku lat sześćdziesiątych. Następnie słowo to zawędrowało do Francji i Niemiec, tam krzyżowało się często z pojęciem „po-nowożytności", a następnie wróciło do Ameryki, wzbogacone o nowe, szersze konotacje filozoficzne i społeczne. Modernizm (nowoczesność) w tym ujęciu to przede wszystkim dążenia wywodzące się z symbolizmu. Kierunki radykalniejsze — futuryzm, ekspresjonizm, dada, surrealizm — schodzą wówczas na dalszy plan. Takie spojrzenie wynika pewnie z faktu, że klasycy nowoczesności — Proust, Rilke, Kafka, Valéry, Joyce, Mann, Eliot, Bieły, Mandelsztam, Achmatowa — związani są z tym nurtem zachowawczym. Gdybyśmy jednak skupili uwagę na różnych awangardzistach tego okresu, to 1 Z tych możliwości zawartych w angielszczyźnie jej użytkownicy korzystają jednak niechętnie: wielki słownik oksfordzki (OED), w wydaniu z 1989 r., wprawdzie uwzględnia hasło post-modern i odnotowuje formy post-modernism i post-modernist, ale nie zauważa post-modernity. http://rcin.org.pl ZDZISŁAW ŁAPIŃSKI 76 postmodernizm okazałby się nie tyle zaprzeczeniem modernizmu, co próbą wskrzeszenia jego wyczerpanej już w Europie witalności2. Kontrast między Europą a Stanami Zjednoczonymi jest zresztą dla wielu krytyków kluczowy. Np. według Andreasa Huyssena awangarda pierwszych dziesięcioleci naszego wieku dlatego nie mogła przyjąć się w Stanach, że tradycyjna wysoka kultura nie zapuściła tam jeszcze korzeni dość głęboko. Henry James, Ezra Pound i T. S. Eliot stawiali sobie za cel europeizację sztuki amerykańskiej, czyli import wyszukanych form artystycznych. Dopiero w latach sześćdziesiątych powstają w Ameryce warunki dla kontrkultury i dla odnowionej awangardy, która pod nazwą postmodernizmu zacznie z kolei wpływać na myśl i sztukę europejską.3 Istnieje chyba jednak jakaś alchemia, która sprawia, że podobne struk- tury artystyczne mogą występować w niepodobnych warunkach socjo- -politycznych. Zaprojektowane w określonej sytuacji, powtarzane by- wają w sytuacji zupełnie innej, a mimo to doskonale spełniają tam nowe funkcje. I wszystkie one, oglądane z dystansu, stają się składnikiem wspólnej, nadrzędnej sytuacji mentalnej. Aby nie poddawać się bez reszty deterministycznemu poglądowi, łączą- cemu w sposób jednoznaczny postmodernizm w sztuce z określonymi warunkami panującymi w społeczeństwach rozwiniętych, warto może przypomnieć, że wielkie nazwiska tej formacji literackiej — Jorge Luis Borges (ur. 1899), Samuel Beckett (ur. 1906) oraz Witold Gombrowicz (ur. 1904), którego nie wahałbym się postawić na czele — to ludzie 2 Zupełnie inaczej interpretuje te związki Włodzimierz Bolecki (Polowanie na postmoder- nistów). Postmodernizm dla niego to negatywna reakcja na kierunki awangardowe. Myślę, że zaciążył tu punkt widzenia teoretyków architektury. Dla nich awangarda to nie żadne dadaizmy i surrealizmy, ale konstruktywizm, Bauhaus, funkcjonalizm, Styl Między- narodowy, słowem — racjonalizacja sztuki. Architekci, którzy już na początku dyskusji o postmodernizmie mieli w niej swój udział i spopularyzowali bardziej niż inni samą nazwę, wprowadzili jednocześnie sporo zamętu. Nie sądzę, aby właśnie architektura, sztuka nieprzedstawiająca, mogła nam służyć za paradygmat. Problematyka postmoder- nizmu dla historyka i teoretyka literatury, jak zresztą i dla filozofa, obraca się wokół pojęć takich jak „referencja", „reprezentacja" czy „podmiotowość", nie znajdujących dobrego odpowiednika w architekturze. Aby uniknąć nieporozumień, dodam, że estetykę Przybosia łączę z modernizmem. U nas istotnie dążenia postmodernistyczne skrystalizowały się m. in. w atakach na „awangar- dyzm" tego autora. 3 Por. A. Huyssen After the Great Divide: Modernism, Mass Culture and Postmodernism, London 1988. http://rcin.org.pl 77 P O S T M O D E R N I Z M — CO TO I PO CO? mniej więcej tego samego pokolenia, ukształtowani w latach, kiedy nikt 0 postmodernizmie nie słyszał, i pochodzący z krajów o zacofanej gospodarce, patriarchalnej obyczajowości i katolickich tradycjach (Ar- gentyna, Irlandia, Polska). Wszyscy trzej zetknęli się natomiast dosyć wcześnie ze środowiskiem paryskiej bohemy w latach międzywojennych.4 To, co jest centrum (tak!) postmodernizmu, tzn. jego sztuka i filozofia, w swych najcenniejszych przejawach powstało mocą wewnętrznej logiki, z prób przezwyciężenia kanonu modernistycznego, z jednej strony, 1 idealistycznej filozofii niemieckiej, z drugiej. Próby te pobudzane były nową wrażliwością, ale wrażliwość tę wykazywali tylko nieliczni. Do- piero pod wpływem nie dających się wcześniej przewidzieć procesów globalnych wypracowane przez małe grupki pięknoduchów techniki odczuwania i wyrażania odczuć, myślenia i nadawania myślom kształtu, zostały powszechnie zaakceptowane. Punktem zwrotnym stało się przeszczepienie pewnej estetyki i praktyki artystycznej z literatury i innych sztuk na nowe dziedziny. Postmoder- nizm jako zjawisko kompleksowe, obejmujące nie tylko sztukę, ale i całą humanistykę, także nauki społeczne, a nawet styl bycia, i pod- porządkowane (dosyć enigmatycznej) ideologii — zapanował dopiero dzięki francuskim myślicielom poststrukturalnym, głównie dekonstruk- cjonistom. Najwdzięczniejszym terenem ekspansji w ciągu ostatnich dwudziestu lat okazała się Ameryka. Przyczółkami stały się uczelnie, a psychospołecznych przesłanek dostarczyła studencka rewolta z końca lat sześćdziesiątych. W debatach politycznych prowadzonych w kręgach radykalnych przez obrońców i przeciwników postmodernizmu daje się często słyszeć pewna fałszywa nuta. A to dlatego, że obie strony starają się zataić fakt (na szczęście, dobrze im znany!), że jedynie społeczeństwo postprzemysłowe, 0 ustroju demokracji parlamentarnej, ze wszystkimi swymi najważniej- szymi instytucjami, takimi, jakie są, a nie takimi, jakie można sobie wymarzyć, potrafi zapewnić warunki życia umysłowego i życia w ogóle, do których intelektualiści przywykli i bez których nie mogliby się obyć. Osławiona wywrotowość postmodernizmu podlega zwykle samokontroli 1 — wbrew nadziejom jednych, a obawom drugich — nie stanowi zagrożenia dla systemu. 4 Tylko niewielka poprawka wniesiona do współrzędnych pozwoliłaby wprowadzić czwarte, i ostatnie, wielkie nazwisko — Władimira N a b o k o v a (ur. 1899). http://rcin.org.pl ZDZISŁAW ŁAPIŃSKI 78 Tak więc w debatach tych jest nie tylko wiele zamieszania pojęciowego, ale i „świadomości fałszywej". A jak się rzecz gmatwa, gdy spróbujemy zastosować kategorię postmodernizmu do społeczeństw komunistycz- nych i postkomunistycznych! Na pierwszy rzut oka żadnych tu zbieżności. Warunki — polityczne, ekonomiczne, społeczne — były pod każdym względem tak różne, że jakiekolwiek próby objęcia zjawisk umysłowych tą samą siatką pojęcio- wą z góry powinny być skazane na niepowodzenie. A jednak. Myślę, że bez naciągania rzeczywistości do gotowych formułek i schematów można zestawić pewne zdarzenia u nas i na Zachodzie dzięki nie tylko powierzchownym podobieństwom formalnym, ale i podobieństwom funkcjonalnym. Poczynając bowiem od drugiej połowy lat pięćdziesiątych wytworzyła się u nas sytuacja sprzyjająca temu, co nazywane teraz bywa „aurą postmodernistyczną". Życie umysłowe toczyło się wtedy w wyraźnie określonych ramach politycznych. Panowała opinia, że choć można zmodyfikować ustrój, to nie można go obalić (przynajmniej w bliskiej przyszłości). Nie można, ale i nie trzeba. Ton bowiem nadawał marksistowski rewizjonizm. Krytycyzm wobec wielu aspektów marksizmu jako teorii i chęć wyko- rzenienia praktyk stalinowskich szły w parze z nieufnością do gospodarki kapitalistycznej. Mimo wszystkie śmiesznostki — i tragedie — tamtych lat, przemiana była potężna. Znowu byliśmy w literackiej Europie. Chłonęliśmy nawet to, co tam dopiero pączkowało. Stąd też dobre przyjęcie, jakie spotkało później — już w fazie świadomego siebie postmodernizmu — naszych twórców na Zachodzie. Mistrzem nad mistrzami tego okresu stał się Gombrowicz. Filozofem najbardziej wpływowym wśród młodych intelektualistów — Kołakow- ski. Najbardziej podziwianym eksperymentatorem w poezji — Biało- szewski. Równocześnie zaczynał się kult młodopolskiego z ducha prekur- sora postmodernizmu — Witkacego. W recepcji dramatu europejskiego najtrwalej zapisała się sztuka Becketta Czekając na Godota, wystawiona przez Jerzego Kreczmara we Współczesnym. Wtedy też uformował się teatr Kantora i Grotowskiego. A j a k o fenomen sztuki masowej objawił się „Kabaret Starszych Panów". Witkacy jest typowym pisarzem okresu przejściowego. Tęsknotę do metafizyki łączy z poczuciem jej niemożliwości w świecie współczesnym. Bezceremonialność, z jaką podchodzi on do sztuki, jej zasad i granic. http://rcin.org.pl 79 P O S T M O D E R N I Z M — CO TO I PO CO? podszyta jest żądzą sztuki absolutnej. Nienawiść do kultury masowej przeplata się z fascynacją. Zasada tragifarsy rządzi każdym rodzajem ekspresji Witkacego, nie wyłączając spraw osobistych. Pastisz i parodia to techniki stosowane przez niego bez opamiętania. Podobnie auto- referencjalność oraz mieszanie fikcji i faktów. Wreszcie to, co przez długi czas nie pozwalało zaakceptować Witkacego tak, jak na to zasłużył — „bylejakość" jego sztuki, jakieś niespełnienie czy niedopełnienie — to antywartość, która dla postmodernistów staje się właśnie jakością poszukiwaną. Jako ucieleśnienie postmodernizmu, w jego wczesnym, a przecie doj- rzałym kształcie, można traktować Gombrowicza. Nie będę śledził poszczególnych stron tej twórczości, to się samo narzuca. Dotknę tylko dwu spraw ogólniejszych. Otóż antysztuka, do jakiej dąży postmoder- nizm, wyłania z siebie wiele nieprzezwyciężonych aporii. Witkacy był tyleż odkrywcą owych aporii, co ich ofiarą. Gombrowicz natomiast umiał nad nimi zapanować i uczynić z nich skuteczny środek wyrazu. Jego bunt przeciw arcydziełom i poszukiwanie sztuki zbrukanej, nie dbającej o swoją nieskazitelność, przyniósł nową formę, a z nią nową doskonałość, mniej ostentacyjną, za to organizującą sfery nie tknięte dotąd przez literaturę. Niedbałość znajduje się pod ścisłym nadzorem estetycznym. Podobnie stosunek do czytelnika. Autor na pozór powierza mu beztrosko siebie i swoje kolejne utwory, naprawdę zaś stara się, w sposób niemal obsesyjny, zaaranżować każdy jego odruch. Dezyn- woltura artystyczna Gombrowicza to tylko zręczny chwyt iluzjonisty, mający ukryć jego jedyną wiarę, wiarę w sztukę, i jego całkowite oddanie tej sztuce. Przełom lat pięćdziesiątych i sześćdziesiątych sprzyjał nastrojom postmo- dernistycznym. Panowało przekonanie, że najgroźniejszy jest dogma- tyzm, absolutyzowanie zasad i reguł, podczas gdy żadnych z nich absolu- tyzować nie wolno. „Dogmatyzm" w żargonie partyjnym był eufemisty- cznym określeniem zastępującym słowo „stalinizm". Ale antydogmatyzm w sensie potocznym dobrze oddaje ówczesne nastroje (por. np. Etykę bez kodeksu Kołakowskiego). Nie darmo też obok „dogmatyzmu" wykorzys- tywano inne pojęcia związane z instytucją religii, takie jak „inkwizycja". Komunizm, swoista parodia teologii, obrzędu i organizacji kościelnej, był atakowany za pomocą bezpiecznych wówczas metafor z zakresu religii, rozrastających się często w alegoryczne fabuły (Andrzejewskiego Ciemności kryją ziemię, Kołakowskiego Klucz niebieski, Brezy Spiżowa http://rcin.org.pl ZDZISŁAW ŁAPIŃSKI 80 brama). Ale i samo myślenie metafizyczne nie budziło respektu. Przewa- żał klimat agnostycyzmu. Istniało też przekonanie, że skoro perspektyw na zasadniczą zmianę nie ma i trzeba się urządzić w obrębie zreformowanego świata dotych- czasowego, to najlepszą bronią w walce o większą swobodę jest ironia, szyderstwo, paradoks, poczucie relatywizmu, świadomość, że historią rządzi przypadek lub naga siła. Ten zespół idei, postaw i praktyk pisarskich tworzył pewną wyczuwalną całość. Nie ma co owijać w bawełnę — to gomułkowszczyzna zrodziła polski postmodernizm. Kres temu położył Marzec 68. Losy wymienio- nych autorów potoczyły się rozmaicie. Większość z nich kontynuowała swój projekt. Znaleźli też epigonów i następców. Ustalił się wówczas kanon — głównie dzięki Sandauerowi — który można dzisiaj nazwać kanonem modernistycznych i postmodernistycznych mistrzów: Leśmian, Schulz, Przyboś, Gombrowicz, Białoszewski. Zaczynają jednak brać górę inne zainteresowania. Wymowna była popularność poetyki wypracowanej przez autorów Nowej Fali, wyko- rzystujących składniki postmodernistyczne swoich poprzedników („poe- zja lingwistyczna"), ale instrumentalnie — w celu stworzenia sztuki perswazyjnej, z tezą, otwarcie zbuntowanej. W inny sposób, lecz także po to, aby zjadliwie komentować aktualia, posługiwał się postmoder- nistycznymi technikami prozatorskimi Konwicki. Bardziej dwuznaczny pod względem politycznym był Tadeusz Różewicz, z premedytacją odwołujący się w swoim „teatrze absurdu" do kontekstu europejskiej neoawangardy. Najbardziej prawomyślną odmianę postmodernizmu uprawiali prozaicy spod znaku „Twórczości". Był to nurt podwójnie konformistyczny — wobec naśladowanych wzorów zachodnich i wobec oficjalnego życia instytucjonalnego. Aby to nadrobić, autorzy ci uciekali się zwykle do ekstrawagancji formalnych i skandalizującej tematyki obyczajowej. Nie mogło to się spotkać z życzliwością czytelników i do pewnego stopnia kompromitowało problematykę postmodernistów w oczach krytyki. Może jestem stronniczy, ale sądzę, że rumieńców nabrała ta problema- tyka na łamach „Tekstów". Był to już okres poststrukturalizmu we Francji i „Teksty", nawiązując do niego wprost, choć nie bezkrytycznie, zaczęły rewidować panujące założenia metodologiczne oraz interpreto- wać na nowo — zgodnie z rozbudzoną wrażliwością polityczną — obraz naszej literatury powojennej. Z brawurą wykonywał to Janusz Sławiń- http://rcin.org.pl 81 P O S T M O D E R N I Z M — CO TO I PO CO? ski, podważając solidną konstrukcję polskiego strukturalizmu, wznie- sioną nieco wcześniej przy jego walnym udziale i dalej zresztą wspieraną przez niego w pracach o charakterze akademickim (co dowodzi, jak dobrze pojął on lekcję dekonstrukcjonistów). Ale mentalność postmodernistyczna — przeniknięta sceptycyzmem, komplikująca nasz stosunek do świata, przejęta własnym rzemiosłem, mimo swych kpin ze sztuki zakotwiczona w światopoglądzie do głębi estetycznym — nie mogła sprostać atmosferze czasów, w których dokonywała się rewolucja. Wichura lat osiemdziesiątych rozwiała resztki „aury postmodernistycznej". Paryskie doktryny i amerykańska praktyka krytyczna spotykały się u humanistów ze wzgardą. Najsubtelniejsi historycy literatury jako przedmiot wiwisekcji wyżej cenili „Trybunę Ludu" niż Leśmiana. Wielu literatów przyjęło śluby ubóstwa artystycz- nego. Następcy Nowej Fali zaczęli uprawiać publicystykę poetycką. Wielkim uznaniem cieszyli się realiści: Marek Nowakowski, Kazimierz Orłoś. Znamienna jest kariera pośmiertna Józefa Mackiewicza, pisarza, którego twórczość znajduje się na przeciwległym krańcu nie tylko post-, ale i modernizmu. Miejsce Gombrowicza jako żywego klasyka zajął Miłosz, wsławiony swymi atakami na „nowoczesność". Wprawdzie on sam dobrze przyswoił i przetrawił współczesne procesy rozkładowe, ale odczytywany był wówczas od strony budującego przesłania. Prawdziwie bałwochwalczą reakcję wywoływały utwory Herberta, poety, który pod osłoną ironii nadawał patetyczny krój postawom, decyzjom i konfliktom tych lat. Dzisiaj jest to rozdział zamknięty. Ale sytuacja bieżąca i perspektywy na przyszłość są dosyć mgliste. Swego czasu u Gombrowicza doszły do głosu wszystkie ważniejsze impulsy postmodernistyczne, a także prze- konanie, że ten styl myślenia nie tylko prowadzi do wewnętrznych sprzeczności (bo to było programowe i nie powinno stanowić zarzutu), ale może ponadto wywołać groźne następstwa praktyczne. Udramaty- zowany obraz tego mamy w Ślubie, w Dzienniku zaś znajdujemy uwagi o umiarze, prostocie i zdrowym rozsądku, jednak dopiero po wyczer- paniu wszystkich skrajności. Wskazówki Gombrowicza (za którymi sam autor nie poszedł) zrealizo- wał po latach Białoszewski, nie w swoich wierszach, lecz w późnej prozie. Proza ta to tylko nieśmiały zarys estetyki — j e d n e j z możliwych estetyk, jakie po przewartościowaniu doświadczeń postmodernistycz- nych mogłyby się przyjąć. Ale czy późne dzieło Białoszewskiego stanowi http://rcin.org.pl ZDZISŁAW ŁAPIŃSKI 82 naprawdę zapowiedź owej estetyki przyszłości? Wątpliwe.5 A bez tej nowej estetyki, sprawdzonej w utworach, o wiele trudniej będzie także pisać w nowy sposób o literaturze. Impas, jaki nastał w badaniach literackich, jest dotkliwy. Najsilniejszego bodźca teorii dostarczała zwykle sama sztuka. Ostatecznie postmodernizm narodził się z na- tchnień, jakie dały wielkie dzieła wcześniejszej epoki. Na pozór wszystko idzie jak najlepiej. Badania literackie zagranicą bogatsze są niż kiedykolwiek w pomysły, szkoły, kierunki. Najbardziej wpływowy jest dekonstrukcjonizm — i to on jest czymś w rodzaju samoświadomości epoki, ale jeszcze lepiej oddaje ową sytuację post- modernistyczna wielość orientacji. Stosunki między tymi orientacjami — dekonstrukcjonizmem, hermeneutyką, neomarksizmem, feminizmem, psychoanalizą itd. — są ambiwalentne. Toczy się zażarta polemika, padają najostrzejsze zarzuty, a równocześnie przenikają się idee i metody. Wzmożonemu zainteresowaniu metodologią (czego dowodem inflacja dysertacji „meta-") bynajmniej nie towarzyszy postulat puryzmu, ani też troska o czystość zasad. Przeciwnie, w cenie jest umiejętność kom- binowania ze sobą ujęć, traktowanych dotąd jako rozdzielne. Cyrkulacja idei, teorii, hipotez i technik badawczych między konkuru- jącymi ze sobą orientacjami rozciąga się na dyscypliny leżące poza literaturoznawstwem. Dawniej był to na ogół ruch jednokierunkowy, od innych dyscyplin ku wiedzy o literaturze. Teraz mamy do czynienia z ruchem dwustronnym. Najbardziej może uderzające są zmiany w nastawieniu filozofów. I to nie „humanistów", ale tych, co jeszcze niedawno wrzucali do jednego worka metafizykę, poezję i czystą ekspresję uczuć, jako rzeczy w tym samym stopniu nie zasługujące na ich uwagę. Mowa tu o neopozytywis- tach, takich jak Nelson Goodman, i ich wychowankach, takich jak Richard Rorty. Dzisiaj dla G o o d m a n a wszelkie poznanie jest arbitralną kreacją, nauka nie różni się w tym od sztuki, a swój dawny rynsztunek logika (jednego z najgłośniejszych w filozofii po wojnie) porzuca on dla metafory, paradoksu, gry słów. Rorty zaś ze swej strony dodaje, iż funkcją filozofii jest nieustająca debata, a raczej rozmowa, dla której najlepszych wzorów dostarcza literatura. Jeśli zaś chodzi o samoświa- 5 Ale por. szkice w pracy zbiorowej Pisanie Bialoszewskiego, Warszawa 1993. Sugerują one, że estetyka Bialoszewskiego jest jednak sygnałem nadchodzących zmian we wraż- liwości literackiej. http://rcin.org.pl 83 P O S T M O D E R N I Z M — CO TO I PO CO? domość metodologiczną, to filozofowie powinni uczyć się u krytyków literackich. W swojej pochwale wiedzy o literaturze Rorty posuwa się zresztą jeszcze dalej. Twierdzi, że w kulturze bogatych społeczeństw demokratycznych, a więc w kulturze postmodernistycznej, wiedza ta zaczyna stopniowo przejmować rolę, jaką dawniej odgrywały — religia, nauka, filozofia.6 A więc z jednej strony jesteśmy świadkami czegoś, co można nazwać rozdrobnieniem i dezorientacją badań literackich, ale z drugiej — ich ekspansji. Jako członkowie światowej mafii zajmującej się zawodowo literaturą możemy wyrażać umiarkowane zadowolenie. Interesują się nami, naśladują nas, rywalizują z nami — i to według naszych włas- nych reguł! Zabawność położenia wynika z tego, że przedstawiciele nauk społecznych chcą naśladować humanistów, a ci — artystów; artyści zaś robią wszystko, aby usunąć sobie grunt spod nóg, kwes- tionując samo pojęcie sztuki. Tak więc kryzys tożsamości daje się wszystkim we znaki. Ożywienie intelektualne jest wyraźne, ale kierunek dążeń niejasny. Myślę jednak, że wiele odrębnych tendencji da się wywieść z tendencji nadrzędnej. Ideę prawdy wypiera idea wolności twórczej, a w związku z tym następuje estetyzacja wielu dziedzin traktowanych dotąd pod kątem poznawczym, etycznym, ideologicznym. Z tej perspektywy cała retoryka wywrotowa i rewolucyjna rysuje się jako gest teatralny. Dla ludzi uwięzionych w klasycznych systemach totalitarnych doj- mującym doznaniem było rozchwianie obiektywnej rzeczywistości, nie dający się pokonać rozdźwięk między bezpośrednim doświadczeniem a powtarzaną przez wszystkich oficjalną wykładnią. Ta schizofrenia społeczna, z taką intuicją i wiedzą oddana przez Orwella, groziła osobistemu zdrowiu psychicznemu. Wiara w obiektywną prawdę dla każdego myślącego człowieka stanowiła artykuł pierwszej potrzeby. U nas zbiorowa pamięć wydarzeń sprzed lat czterdziestu jest jeszcze dość silna, by relatywizm poznawczy mógł nie wywołać niepokoju. Ze wszystkich cech postmodernistycznych ów relatywizm jest chyba naj- bardziej drażniący. Dlatego właśnie chciałbym udzielić głosu jego obrończyni, Barbarze Herrnstein Smith. Zdaniem tej autorki, traktuje 6 Por. N. G o o d m a n Ways of Worldmaking, Indianapolis 1978. i Of Mind and Other Matters, Cambridge, Mass. 1984, oraz R. Rorty Contingency, Irony, and Solidarity, Cambridge (England) 1989. http://rcin.org.pl ZDZISŁAW ŁAPIŃSKI 84 się go zwykle jak postawiony na głowie obiektywizm. Bo obiektywista nie dopuszcza do siebie myśli, że można poważnie brać pod uwagę inną perspektywę, zakładającą całkiem odrębną konceptualizację świata, a więc i inny sens kluczowych słów, inny tryb rozumowania, inną postawę — nie dające się określić przez odwrócenie jego własnych poglądów. Jak sugestywnie pisze ta apologetka nie-obiektywnej filozofii, większość zarzutów formułowana jest w języku, który podlega właśnie zakwestionowaniu. Polemika prowadzona za pomocą tradycyjnych oskarżeń — oskarżeń o wewnętrzną sprzeczność, o brak kryteriów pozwalających odróżnić prawdę od fałszu, dobro od zła i piękno od brzydoty oraz o nieuniknione ponoć skutki społeczne tych poglądów — otóż tego rodzaju polemika, według Herrnstein Smith, może przeko- nać tylko tych, którzy już wcześniej zaakceptowali obiektywistyczne rozumienie takich słów jak „prawda", „rzeczywistość", „wartość", „znaczenie", „referencja" itd. Herrnstein Smith pisze: „Relatywizm" — w sensie koncepcji świata j a k o zjawiska, które stale się zmienia, jest zróżnicowane w sposób nieodwracalny i daje się rozmaicie porządkować — nie uznaje siebie za dedukcyjny wywód logiczny lub nieuniknioną konkluzję wyprowadzoną z do- świadczenia osobistego czy eksperymentu naukowego, albo za wgląd w ukrytą naturę rzeczy lub transcendentalne objawienie. Własną koncepecję świata traktuje raczej j a k o przygodny wytwór wielu faktów. P r z y g o d n y w tym znaczeniu, iż koncepcja ta nie jest funkcją sposobu, w jaki świat istnieje, ale stanu, w jakim znajdują się poszczególne systemy oddziaływające wzajemnie na siebie w określonym czasie i miejscu. Koncepcja ta wymaga, aby istniało „coś" innego niż ona sama, innego niż sam proces pojmowania świata, ale nie pozwala ona o tym „czymś" niczego więcej powiedzieć czy pomyśleć — ani jednej cechy, którą można by wymienić, i żadnego sposobu, aby opisać, zanalizować lub wykorzystać jakąkolwiek jego właściwość — niczego, co byłoby niezależne od owego procesu pojmowania świata.7 Herrnstein Smith wątpi, aby wyznawany przez nią relatywizm mógł szerzej oddziaływać. W tej wyrafinowanej formie — z pewnością. Ale w formie zwulgaryzowanej przenika nie od dziś do kultury masowej i wpływa na potoczne zachowania ludzi i na styl życia. Może zresztą takie kreatywne rozumienie prawdy, nawet w odmianie uproszczonej, stanie się jeszcze jedną siłą napędową rozwiniętej cywilizacji. Ale czy w społeczeństwach dopiero wyzwalających się od zakłamanej rzeczywis- 7 B. Herrnstein Smith Contingencies of Value: Alternative Perspectives for Critical Theory, Cambridge, Mass. 1988, s. 183. http://rcin.org.pl 85 P O S T M O D E R N I Z M — CO TO I PO CO? tości relatywizm nie powiększy istniejącego chaosu norm i nie zakłóci elementarnego porządku myślowego? I oto dylemat: jeśli wierzę, że prawda jest nierelatywna, a jako wartość stoi na pierwszym miejscu, to muszę dążyć do niej nie bacząc na nic; ale jeśli idąc jej śladem przekonam się, że jest ona inna niż sądziłem, mniej nierelatywna, to czy dalej mam o tym mówić za wszelką cenę? Czy może powinienem kierować się potrzebami taktyki społecznej? W krajach autorytarnych instytucje odpowiedzialne za ład publiczny i wychowanie młodych mają prostą odpowiedź: obywateli trzeba chronić przed miazmatami myśli nowoczesnej. Oczywiście, odrzucamy to roz- wiązanie bez chwili wahania. Ale co w zamian? Richard Rorty namawia, aby nie przejmować się zbytnio negatywnymi z punktu widzenia społecznego treściami współczesnej literatury i filo- zofii. Chce, abyśmy z jednej strony kultywowali ekspresywne wartości osobowe, często nihilistyczne, a z drugiej pielęgnowali cnoty społeczne, zwłaszcza poczucie solidarności, i starali się chronić bliźnich przed cierpieniem. Czy jednak ja, jako istota prywatna, mam umacniać w sobie dyspozycje, które ja, j a k o istota publiczna, zmuszony byłbym potępić? Rozwiązanie Rorty'ego jest, zdaniem wielu, nie tyle rozwiązaniem, co uchylaniem się od niego, myślową konstrukcją pozwalającą zawiesić decyzję. Odnosząc się do pomysłu Rorty'ego z rezerwą, nie umiem jednak dostrzec żadnej innej przekonującej próby przezwyciężenia owej dwois- tości norm, tak dokuczliwej dla czytelników współczesnego piśmien- nictwa. Podejrzewam, że aby pogodzić te skłócone ze sobą wartości, potrzebna jest nie tyle teoria, co praktyka, zwłaszcza zaś to, co dawniej zwano roztropnością. I to zresztą wynika z książki Rorty'ego.8 8 Warto tu wspomnieć, dla równowagi, o jeszcze jednej autorce. Martha C. Nussbaum, filozof i filolog klasyczny, wychowana w tradycji filozofii analitycznej, od lat buduje swój program etyki w przekonaniu, że najlepszych wzorców percepcji moralnej dostarcza literatura. Broniąc umiarkowanego „esencjalizmu", tj. poglądu, że istnieją powszechne cechy gatunkowe, czyli natura ludzka (por. Human Functioning and Social Justice: In Defense of Aristotelian Essentializm, „Political Theory" Vol. 20, No. 2, May 1992), zaczynała od teatru greckiego, później zajęła się także pisarzami nowszymi. Wprawdzie przeprowadzana przez nią selekcja pozwalała omijać pisarzy najbardziej „niebezpiecz- nych", ale ostatnio udowodniła, że świetnie radzi sobie także z mistrzami postmodernizmu (por. Narrative Emotions: Beckett's Genealogy of Love, w jej książce Love's Knowledge: Essays on Philosophy and Literature, New York 1990). http://rcin.org.pl ZDZISŁAW ŁAPIŃSKI 86 Porównując stan humanistyki u nas i na Zachodzie, musimy przyznać, że długo pozostawaliśmy w sytuacji uprzywilejowanej. Humanistyka przez parę dziesięcioleci była polem, na którym rozgrywały się po- tyczki o całkiem wymiernych skutkach politycznych. Te dni minęły. Mamy poczucie, że nasze ręce krępuje sieć niewidzialnych nici. Słowa nie ważą tyle, ile ważyły w podjazdowej walce ze starym porządkiem. A jednocześnie nastroje powszechne są takie, że nawet nieważkie słowa potrafią wywołać złowrogie skutki. Można odnieść wrażenie, iż ludzie na trybunach mówią o prawdzie (swojej prawdzie) jako o czymś absolutnym, a swoim postępowaniem chcą nas przekonać, że prawda jest w ogóle pojęciem pustym. W tych okolicznościach szczypta świadomego siebie relatywizmu i jeszcze więk- sza dawka autoironii mogą działać z pożytkiem, jak trucizna zamieniona w szczepionkę. http://rcin.org.pl lapinski-postmod WA248_72852_P-I-2524_lapinski-postmodern 
work_kgpke2j6bbb5hncomqqnkzx3uu	----	BOOK REVIEWS 179 One Earth: Social and Environmental Justice Nicholas Low and Brendan Gleeson, 1999. Australian Conservation Foundation. 29 pp. 5 Parts. ISBN 0 85802 132 3. RRP No Cost. KELLI O'NEILL I Is it fair that some people live in a clean and healthy environment, while others live under oppressive, hazardous or ugly conditions? Is it fair that some reap the benefits of development, but fail to bear the cost of air, noise or water pollution resulting from the services they exploit? One Earth: Social and Environmental justice by Nicholas Low and Brendan Gleeson explores the connection between environmental responsibility and social justice by discussing the concepts of environmental and ecological justice. It is the second document in the Tela series published by the Australian Conservation Foundation. The Tela papers explore the relationships between the environment, society, the economy and the 21st century. Changes that are needed by the economy and society to achieve ecologically sustainability are examined. The series is aimed at decision makers, opinion leaders, educators and for general readership to spark debate on key environmental issues. According to Low and Gleeson environmental justice is the fair distribution of "good" (safe, attractive) and "bad" (hazardous, ugly) environments among people. It means the fair distribution of resources between people, ensuring that their basic needs are met. Ecological justice is the relationship between humans and the natural world and the connections they have with the environment. Perhaps the most pertinent issue presented IS that we cannot reasonably expect to make it a righteous, morally correct world simply by addressing environmental justice. The point is raised that it is anthropocentric to only consider the distribution of good and bad environments between people. What about other organisms? Don't they have rights to a healthy environment? In discussing this anthro- pocentric view the authors state that "public and private choices are today made within too narrow a band of the ethical spectrum" meaning that we need to expand our minds and have a greater sense of public morality to gain a complete account of our relationship with the environment. The critical question asked by the authors is whether we have to choose between "individualism with its potential for freedom and choice" or an "ecologically enlarged conception of the self in which we feel connected with and in some sense accountable to the whole of the natural world". A final theme of the paper discusses the need to increase public awareness about the environmental wealth our planet provides. By reducing greed and increasing personal ethic we begin to achieve environmental and ecological justice. There are three levels on which this enlargement can take place: The first involves the need to be inclusive of the natural world. The second suggests that the principles of justice need to be well defined. The third focuses on political justice in a global society. All organisms live in an unfair environment. However, most people seem unwilling, or are unaware of the need to change their habits to correct this unfairness. One Earth: Social and Environmental justice is a must read for everyone to expand their minds on the lack of justice in this world. The Tela papers are being distributed free to universities and are available on line at www. acfonline.org.au/publications/telalintro/htm 'School of Natural Sciences. Edith Cowan University, Joondalup, Western Australia. Australia 6027. 
work_kgxiiouvfrgiljboav77gqpsum	----	NimbusRomNo9L-Regu This is an Open Access document downloaded from ORCA, Cardiff University's institutional repository: http://orca.cf.ac.uk/115494/ This is the author’s version of a work that was submitted to / accepted for publication. Citation for final published version: Herman, Agatha, Goodman, Michael K.. and Sage, Colin 2018. Six questions for food justice [Commentary]. Local Environment 23 (11) , pp. 1075-1089. 10.1080/13549839.2018.1532401 file Publishers page: http://dx.doi.org/10.1080/13549839.2018.1532401 <http://dx.doi.org/10.1080/13549839.2018.1532401> Please note: Changes made as a result of publishing processes such as copy-editing, formatting and page numbers may not be reflected in this version. For the definitive version of this publication, please refer to the published source. You are advised to consult the publisher’s version if you wish to cite this paper. This version is being made available in accordance with publisher policies. See http://orca.cf.ac.uk/policies.html for usage policies. Copyright and moral rights for publications made available in ORCA are retained by the copyright holders. 1 This is a pre-copy-editing, author-produced PDF of a commentary paper accepted for publication in Local Environment, in the special issue New Spaces of Food Justice . Six Questions for Food Justice Agatha Herman (Cardiff University), Michael K. Goodman (University of Reading) and Colin Sage (University College Cork) Introduction In July 2014 the Food Justice: Knowing Food/Securing the Future workshop at the University of Reading, UK brought together over 60 academic and civil society delegates to discuss the contemporary state of food justice.1 While food is essential to the growth, development and health of human life, and to social well-being (Riches 2018), an array of contemporary challenges demonstrates that our food system does not ensure freedom from want and oppression, or environmental sustainability (Allen 2008). Indeed, when we consider the number of malnourished children that live in countries with food surpluses it becomes clear that a more equitable and healthy food system is substantively not an issue of production but, rather, of access and justice. Justice, in the context of food, has a variety of framings, including questions of rights, anti-poverty politics, community food security, distribution, political representation and collective self- determination (Levkoe 2006, Barnhill and Doggett 2018) Consequently, food justi e as a o ept, process, practice and outcome remains open to multiple interpretations (Gottlieb and Joshi 2010) with all the i he e t da ge s of ei g a e pt sig ifie (Heynen, Kurtz et al. 2012). Despite this, there is a utility and importance to wide, diverse engagements from a range of stakeholders in working through notions of food justice (Wekerle 2004). Indeed, this is mirrored by the number of alternative food o e e ts a oss the o ld fo usi g o the ultiple a s that a ial a d e o o i i e ualities are embedded within the production, distribution, and consumption of food (Alkon and Mares 2012: 348). These endeavour to explore the causes, symptoms, processes and outcomes of food justice and injustices (Agyeman and McEntree 2014) and recognize the need to address and challenge the socio- economic, political and ecological contexts and structures that have shaped food injustice (Alkon and Guthman 2017). 1 While we are representing the conversations, debates and discussions of the workshop, this material here remains ours and ours alone. 2 Food justi e is, the efo e, a iti al o ept oth fo s hola s a d fo people s e e da li ed ealities. For the former, it offers a conceptual framework to understand and analyse the broader structural i e uities that shape people s e pe ie es of food s ste s a d potentially contribute towards progressive policy development and social change (see, for example, Levkoe 2006, Sbicca 2012, Bradley and Galt 2014). For the latter, realising a more just food system means one in which everyone has a ess to suffi ie t, affo da le, health , ultu all app op iate food, a d – very importantly – respect and self-dete i atio (see also Dowler and O'Connor 2012, Bradley and Galt 2014: 173). Although food justice practices generally work through principles and ideals embodied within the broader struggle for social justice, the movement is not homogenous, especially when considering US2 experiences versus those in the UK (Food Ethics Council 2010; Kneafsey et al, this issue, Moragues- Faus 2017) and other parts of the globe (Besky 2015; Blake, this issue). The tensions and contestations reflecting the range of reformist to radical approaches, practices and rationalities (Brent, Schiavoni et al. 2015) were, and are, exemplified in our workshop and this special issue. Recent literature demonstrates the contemporary relevance of debates around food justice.3 Building on this foundational work and its normative politics, at the Reading workshop we wanted to take stock of these debates and ask questions about what else must and remains to be done across the scholarly and applied worlds. These concerns formed the basis of a set of dynamic interventions held during the workshop in which we—from our privileged positions—collectively considered, visualised and debated our understandings of the key contemporary challenges for food justice. All participants completed a worksheet in which they expressed their key challenge for food justice as an illustration and a short statement. These led into the development of project ideas to engage with the challenges identified and develop a set of cross-cutting common themes. A content analysis of the worksheets used deductive codes based on the latter while making space for others to inductively emerge. This iterative process grounds the six questions proposed here: 1. Is it possible to ensure fair provisioning with equitable access in food systems? 2. In what ways can we promote and enhance connections within food systems? 3. To what extent can existing collaborations and connections be built across scales? 4. How does food justice fit within wider drives towards social, economic and environmental justice? 5. How do we develop an effective critique of current food production strategies? 2 And particularly Californian perspectives on food justice, e.g. Alkon and Guthman, 2017b. 3 Particularly in the critical scholarship of Julie Guthman, Patricia Allen, Alison Hope Alkon, Justin Aygeman, Nik Heynan, Eric Holt- Giménez, Ryan Galt, Rachel Slocum, Molly Anderson, Anne Bellows, Liz Dowler, Moya Kneafsey, Melanie Bedore, Joshua Sbicca and Amy Trauger 3 6. Can food justice challenge the status quo of neoliberal capitalism? We also include a series of statements – interspersed and offset from the text in italics – from workshop participants that, in provocative ways, illustrate the variety of perspectives allowing individual voices to be heard. Food justice scholarship over the last 20 years has engaged with social movements and alternative practices, analysed inequalities and connected into broader areas of research and activism (Glennie and Alkon 2018). While some of the questions posed here may come as no surprise, that fact that they continue to be pertinent should alert us to both the progress that has been made and the struggles that remain ongoing and in need of critical attention. Moreover, while not exhaustive, they a t as a useful sto k take , fa ilitati g fu the de ate a ou d a s to eate o e just food s ste s. While we believe that the questions and statements in this paper represent the situated knowledges and experiences of those who attended the conference, the context of the latter is critical. As Glennie and Alkon (2018: 2) efle t esea h i te atio all has p o eeded at a diffe e t pa e, a d ith a diffe e t e phasis, tha the field of food justi e i the U ited “tates . Thus, discussions at the workshop were primarily grounded in our varied European experiences. While we hope this will help to broaden food justice debates beyond a predominantly US focus, we recognise that there are many other voices and perspectives with much to say on questions of food justice that are missing from this account. Indeed, one of the core issues that emerged from the workshop was the need to hear from, and publicly engage with, more marginal, unheard and underrepresented voices—particularly in Europe as austerity continues to deepen—many of whom face food poverty and injustice in their everyday lives: The main food justice challenge at the moment is to alleviate the black cloud of suffering hovering over millions of families and individuals unable to afford sufficient healthy food due to poverty. We e og ize, the , that this is a i pe fe t do u e t that o tai s statements or arguments that have been subject to analysis and, indeed, extensive critique elsewhere (see Alkon and Agyeman 2011, Cadieux and Slocum 2015, Slocum and Cadieux 2015, Slocum, Cadieux et al. 2016, Alkon and Guthman 2017, Moragues-Faus 2017) and much of this echoes through this special issue. Yet their inclusion is important as our intervention seeks to air these debates in ways that facilitate closer scrutiny and promote greater engagement and understanding with the key issues. While this paper represents the deliberations of a particular set of scholars and representatives from civil society, we recognize the limits of this work in terms of those who, at this moment, are systematically - if unintentionally - excluded. 4 The multidisciplinary and multi-sector nature of the Reading Workshop provided a wide-ranging platform of interests, experiences and values and meant that we did not always share a common view. However, the degree of relative consensus across this group suggests that the questions and issues raised here travel beyond disciplinary boundaries and warrant further consideration. Our hope is that the posing of questions rather than statements of aspiration will reveal new and continuing issues that have yet to be satisfactorily addressed from an alternative food movements and activism perspective. In this, our aim is to critically reflect on current literatures, bringing together cross-cutting issues to provoke further reflection on the future needs as well as the hopes, visions and potentials of food justice movements in a European and UK-focused context. 1. Is it possible to ensure fair provisioning with equitable access in food systems? Although food justice has been defined as the st uggle agai st a is , e ploitatio , a d opp essio taki g pla e ithi the food s ste that add esses i e ualit s oot auses oth ithi a d e o d the food hai (Hislop, 2014: 19 in Alkon 2014), the majority of research remains centred on individuals and relatively small, collective activist groups (e.g. Alkon and Guthman, 2017b). While this reveals the circumstances and everyday realities of food injustices, arguably this must be combined with a systems analysis, recognising growing corporate power and increasing consolidation and concentration across global food systems (Clapp and Scrinis 2016, Howard 2016, International Panel of Experts on Food Systems (IPES-Food) 2017). The manufacture, distribution and availability of rising volumes of cheap, nutrient deficient, energy dense foods are a vital part of the complex picture of food justice. For, with healthier food options regarded as less profitable (Stuckler and Nestle 2012), food corporations have strong financial incentives to promote highly refined, ultra-processed products. This is a feature of the global food system today, which is responsible for driving a nutrition transition – long established in the rich (OECD) countries – throughout middle and many low-income countries. As a consequence, health experts have been drawing attention with increasing urgency to rising levels of obesity accompanied by escalating rates of non-communicable diseases (NCD). For the food insecure especially, the steadily rising price of food has significantly outpaced the growth in household earnings. According to Woodall and Shannon (2018) since 2008 real consumer food prices have risen about three times faster than typical wages, with the benefits accruing to the biggest food, beverage and retail companies. It s ot a out p odu tio ut a ess to food Enough food is available globally, the halle ge is ho to e su e fai allo atio a d a oid aste 5 Holt-Giménez et al (2012) states that the world already produces enough food to feed 10 billion people. With the o ld s u e t populatio at . illio this suggests that it o ti ues to e po e t and inequality, rather than scarcity, which causes chronic hunger for 815 million people worldwide (HLPE 2014, FAO, IFAD et al. 2017). We say continues since Amartya Sen (1981: 1) commented over 30 years ago that starvation is the characteristic of some people not having enough food to eat. It is not the characteristic of there being not enough food . A well-documented consequence of this food supply challenge is the presence of both ends of the malnutrition spectrum – hunger and obesity – at the same time and even in the same space, a situatio also la elled al o su ptio (Sage 2013). Consequently, as Godfray et al (2010: 2769) have observed … e a ot e said to ha e a fu tio i g global food system when one in seven people today still do not have access to sufficient food, and an equal number are over-fed . People s li es ui ed y hu ge a d o esity: t o sides of the sa e oi Furthermore, access itself is an ecological issue, comprised of multiple, historical factors (Guthman 2012, Goodman, Carolan et al. 2014, Sage 2014). Wo k o food dese ts highlights that the contextual, structural constraints on tackling inequalities in food distribution exist in both developed and developing spaces; research on the foodways of low-income groups adds more nuanced depth to this by challenging the dominant narrative that low-income people do not have the desire, knowledge and/or means to eat healthier (Alkon, Block et al. 2013, Bowen, Elliott et al. 2014, Cairns and Johnston 2015) or to grow their own food (Kneafsey et al, this issue). There is significant knowledge about healthy food – growing and cooking it – amongst low income groups (Curran and Gonzalez 2011, Alkon, Block et al. 2013, Bradley and Galt 2014, Dixon 2014) but, as Dixon (2014: 178) comments, knowledge of ho to eat is ot al a s suffi ie t fo hoosi g to eat diffe e tl tha e do . Getting all the food produced in the world to all the world in a warming, fuel starved world The challenges posed by ensuring equitable access go beyond this scaled necessity to situate food justice in everyday lives and so recognise the inherent socio-cultural power relations that surround food. As the o e adi al , so ial justi e i a atio s of food justi e a gue, dispa ities i food a ess p o ide a i do i to a u h la ge s ste of a e a d lass elatio s (Brent, Schiavoni et al. 2015: 625); esse tial to the food justi e o e e t is a a al sis that e og izes the food s stem itself as a racial project that problematizes the influences of race and class on the production, distribution and o su ptio of food (Alkon and Agyeman 2011: 5). Food justice therefore connects into broader debates and geographies of power, capital, land and labour as well as the environment (Slocum, Cadieux et al. 2016). Indeed, the issue of food waste lies at the very heart of food justice considerations, particularly at a time of anthropogenic climate change and resource depletion (Evans 6 2014). For example, 6-10% of greenhouse gas emissions from developed countries are produced by growing food which is never consumed, while 250km3 of water are lost globally every year as a result of food wastage (HLPE 2014). The problems of food waste clearly translate into issues around equity and fairness in environmental as well as socio-political arenas. The main food justice challenge is that some people have more access to food and waste a lot, while others do not have enough With 33% of all food globally being wasted (HLPE 2014), food waste – whether caused by a surfeit of food, o su e o fusio o e use dates, poor storage or a lack of post-harvest transport – is clearly a significant factor impacting on food availability and equality of access. Yet recent years have witnessed growing political recognition and popular consciousness around the issue of food waste (Campbell, Evans et al. 2017) with attitudinal shifts from an environmental managerialism designed to reduce landfill costs toward a moral solution to the scandal of wasted food. That this coincided with the era of austerity, which followed in the wake of the 2008 financial crisis, and was accompanied by rising food prices, is not coincidental given that more frugal domestic budgeting became the norm. However, as Campbell et al (2017) observe, food waste has become a compelling new arena of political action that is ot si pl o all ad ut o e he e the ke ulp its – the major food retailers – moved quickly to reposition themselves as the solution. This has led to the rapid growth in number a d s ale of food a ki g ope atio s esta lished to pa t e ith etaile s i disposi g of food su pluses aste hile si ulta eousl sol i g the s ou ge of food po e t (Cloke, May et al. 2017, Gaithwaite 2017). Food justice activists and scholars have consequently had to respond to – and challenge – the dis ou se of sha i g , a i g a d suppo ti g as la ge o po atio s app op iate the language of solidarity in pursuing a business model that arguably reinforces an unsustainable and unfair food system. Moreover, the charitable redistribution of food surplus serves to conceal the extent of poverty, social exclusion and injustice and demonstrates the lack of a right to food security with dignity (Kenny and Sage 2018). Consequently, food justice is a multi-faceted issue situated within an interconnected network of social, political, economic, cultural and environmental justice challenges. While our discussion so far has been largely drawn in global terms we acknowledge that the problem of o e just food s ste s will only be achieved through concerted action across multiple scales, with the everyday and the local offering unique opportunities to (re)engage and (re)connect individuals and communities into food systems. 2. In what ways can we promote and enhance connections within food systems? 7 Disparities, disconnections and inequalities persist and grow One key challenge for food justice remains connecting people into food systems; with enhanced knowledge of the production, distribution and cooking of food, the transparency and accountability of these systems are strengthened. With such knowledge, people have an informed capability to hoose hat a d ho the ould like to o su e, a d to uestio a d halle ge the ads of food systems. The key question is how to enhance this access and connection to food. We are not trying to privilege the local because too tight a focus on this scale can lead to overly defensive and essentialised practices and attitudes (DuPuis and Goodman 2005). Furthermore, what is commonly understood as lo al food is, th ough its a ket positio i g, ta geted to a ds a spe ifi , highe -income, often white demographic making local food outlets such as farmers markets and delis exclusionary (Allen 2010, Guthman 2012, Bradley and Galt 2014), a community which arguably the Reading workshop also replicated. Nor, to be clear, are we suggesting an overt responsibilisation of poor or marginal – or of any – consumers. Rather, focusing on the particular enables more tightly defined actions as people are mobilised through specific events or relations that are of significance to them and their local communities; being grounded in responding to local needs can make food justice less abstract, distant, frustrating or disempowering than working at a larger scale (Allen 2010). However, remembering that international food systems are inherently multiscalar, a d the po e geo et ies (Massey 1999, Slocum, Cadieux et al. 2016) that this entails, the local must have these broader interconnections folded ithi it, othe ise food justi e st ategies o k a ou d the la ge food s ste i s all a s (Clendenning, Dressler et al. 2016: 170). Stop the institutionalisation of food. People should have adequate access to food which meets their social, financial and cultural needs. Rather than specifically critiquing the industrialisation of food systems, we identified the institutionalisation of food as a key means through which certain values, concepts and roles have become embedded and normalised within particular socio-economic spaces or organisations. This ossification acts to exclude particular others and preclude alternative formulations, discouraging people and communities from thinking about or doing food differently. These ideas around fostering po e f o ithi o e t i to oade d i es a ou d e po e e t, although this is ie ed disparagingly by food sovereignty movements (Holt-Gimenez and Wang 2011; Milner, this issue). While we do not wish to perpetuate the neoliberal logic that responsibility for welfare fundamentally rests with the individual, as seen through the examples discussed by Blake (this issue) and Alkon and Guthman (2017b), given the individualised nature of eating, people should be engaged – in appropriate and empowering ways (see Guthman 2008a, Guthman 2008b, Hayes-Conroy 2010, 8 Carolan 2011, Hayes-Conroy and Hayes-Conroy 2013, Figueroa and Alkon 2017) – to think about how they connect with food in order to build broader coalitions and communities of action. This is clearly difficult but, perhaps, a certain degree of normalisation of values is necessary in order to stabilise and coalesce these coalitions. However, every discourse already contains within it the potential for resistance and it is the loss of this radical potential through the institutionalisation and control of food by particular agents, such as corporations or state bodies, in particular ways which we might challenge. This is manifest in the tension apparent in many NGOs between their need for funding and their position as a structure of resistance, with Guthman (2006) stating that such flows of neoliberal capital into food movements depoliticise them by limiting the conceivable, the arguable, the fundable and the organisable. In some ways, this is est displa ed the o po atisatio of food po e t (Riches and Tarasuk 2014, Riches 2018) and where anti-hunger advocates have been accused of being complicit in the industrial hunger complex through their collaboration in surplus food redistribution (Fisher 2017). How to reconnect people to where food comes from and take ownership over the production of their own food, wherever they live? In discussions at the workshop, the role of an experiential element in enhancing connections emerged, with a physical act demanding a more active enrolment as well as helping to develop a dynamic sense of solidarity and community (Herman 2015, Herman 2016; Kneafesey et al, this issue). The literature is full of examples of community gardens, community farms, allotment associations, and cooking groups but, again, we argue that these need to be understood within the o te t of people s e e da , lived realities in order to enhance participation. There may be uiet ways in which people already engage with food (Smith and Jehlicka 2013) - such as how they involve their children or engage with homemade foods (Yotova, this issue) - which have had limited consideration from policymakers and academics, and that can be built upon. For example, Loo (2014) argues that how food justice is commonly defined omits recognition of the participatory inequalities in which material and distributive injustices are grounded. Therefore, personal transformations need to be related to broader political, economic, social and cultural change (Brent, Schiavoni et al. 2015). These drives need to be firmly situated within current cultural political economies, regulatory structures and relations of power. Their diversity, as well as that of alternative food initiatives themselves, must also be acknowledged. These (re)connections cannot happen in isolation at the local scale but must contain a broader acknowledgement of the relationalities that living in a globalised world entail. Given the often-lengthy commodity networks of food products we therefore must also support the rights and needs of the 9 other stakeholders within these chains in order to build extensive and meaningful collaborations and consensus. 3. To what extent can existing collaborations and connections be built across scales? All together at the table: Northern and Southern producers, business, transportation, retailing, consumers and nature! As Allen (2010: 297) a gues, … o o e ould a gue that food-system localization can undo the i e uities eated histo ies of olo ialis , i pe ialis a d eoli e alizatio . In order to address these igge st u tu es a d ideologies e the efo e eed to o i e lo a o is ith igge pi tu e collective solidarity. Getting communities affected by food poverty and austerity to speak for/by themselves and organise for power Allen (2008: 160) otes that si e the ag ifood s ste is socially organised, problems are the product of so ial hoi es, e odied i t aditio s, i stitutio s, a d legal a d e o o i st u tu es . Although, as mentioned above, the latter can lead to these ideas and p a ti es e o i g o alised a d lo ked i , o e e e og ise that i justi e is a o se ue e of social forces, we can acknowledge that we ha e, o a de elop, the apa ilit to do othe ise (Sen 1999). This then opens up the terrain – albeit within certain socio-economic bounds and for certain powerful actors – enabling us to develop the power to see possibilities and opportunities for difference and change. Building on individualistic, pragmatic initiatives at local scale to develop overtly political action carried out by collectives of food justice activists However, not everyone in global food systems has the agency to make other choices. Since we recognise the interconnected nature of contemporary global food systems, this demands a holistic understanding of how injustices are experienced throughout networks and across the myriad human and more-than-human actants who engage with them. The industrialisation and institutionalisation of food has acted to fetishize our relations with it, meaning that food justice movements, at least in the US, tend to focus on local and urban issues of consumption and distribution (Clendenning, Dressler et al. 2016) rather than overtly confronting the political economies of food production (see, however, McEntree 2011, Brent, Schiavoni et al. 2015, Eaton 2017, Harrison 2017). Nonetheless, the common ground across developed and developing spaces for those marginalised in the modern food system highlights the potential opportunities for international networks and solidarity (Clendenning, Dressler et al. 2016). Recent developments in ICTs, alternative trading systems such as Fair Trade, academic a d popula follo the thi g dis ussio s (Cook 2006) and engagements with food at the local scale 10 can work together to enhance our awareness of the challenges of domination, exploitation and coercion within food systems, and make connections between the various network nodes possible. Not just one but many worlds are at stake (framing food in ethical terms can over-write this politics of difference) As Bradley and Galt (2014: 173) state food justi e is a out espe t a d self-determination in all phases of food p odu tio , e ha ge, a d o su ptio . The efo e, if e a t to a oid al a s ha i g a o al remainder to our food choices – good in animal welfare versus poor in food miles; locally produced and distributed versus not supporting marginalised overseas producers; cheap food versus exploited labour – then we must develop connections between the various worlds in food systems in order to build better knowledges of each other, our needs and our rights. What this suggests, then, is the need to broaden food justice movements both spatially and in terms of their political and socio-economic engagements. Food justice is obligation, responsibility and reciprocity from grassroots to small farmers Having positioned the necessity for global collaborations, we now turn to a more practical question: how can food justice be achieved? While we were all agreed that this was an essential requirement for a just food future, there was also recognition that achieving this will be neither an easy nor a straightforward task. How do we visualise and revalorize low and unpaid work in food networks and build collective methodologies and more egalitarian movements? De elopi g asso iatio al po e ith as a olle ti e ought togethe th ough food is halle gi g. Although Allen s (2008: 159) statement that o othe pu li issue is as a essi le to people i thei daily lives as that of food justice. Everyone – regardless of age, gender, ethnicity, or social class – eats. We a e all i ol ed, a d e a e all i pli ated resonates, how do we enable all voices in food networks to be heard? The women and girls doing unpaid, subsistence work; the small farmers who cannot afford Fairtrade certification; the non-unionised food chain workers; the microbes and pathogens that influence yields; the active lives of plants and animals – all have stories even if they have no or limited capability to share them. Issues of food justice thus connect into broader social justice debates around, amongst others, power, access, household finances, gender equality, education, the valorisation of knowledge and cultural traditions and identities (as discussed by Milner and Yotova, both this issue). To overcome injustices throughout the food chain we need to start treating people as citizens NOT consumers, and address food inequalities at various scales 11 Following Levkoe (2006: 90), we agree that food is o e tha just a othe o odit a d people a e o e tha just o su e s . Ho e e , while the rise of the citizen-consumer (Wheeler 2012) recognises citizenship as active, accountable and acknowledges that there are multiple ways in which to participate in the polity, the citizen- o su e is eithe passi e o full i o t ol (Jubas 2007: 250). Furthermore, this is grounded in the rhetoric of personal choice, requiring the citizen to have pu hasi g po e , hi h is u e e l dist i uted i so iet a d de ol es espo si ilit do to the individual level. While this acts as a reminder that there are multiple ways of being political, demonstrating solidarity and challenging society to better itself (Barnett, Cloke et al. 2011, Guthman and Brown 2016), we need to move beyond the confines imposed by the citizen-consumer to open up alternative routes of communication and connection across the scales, recognising the translocal and transnational nature of food justice (Wekerle 2004, Sage 2014). Collaborations and connections must be embedded in an expansive view of the social to establish a holistic understanding of the myriad actants and relationships underpinning the development of just food practices and systems. In Herman (2016) the forest was a key actant in supporting the resilience of Finnish farms; in Ferguson and the Northern Rivers Landed Histories Research Group (2016) soil was an important ally in struggles for sustainable food systems; and in Williams and Holt-Giménez (2017) land was central to food activism. A more-than-human approach moves food justice from being a process of individual responsibilisation to being grounded in an emergent and relational community. Therefore, rather than simply adopting consumption as the only way to engage or, indeed, o pletel e ludi g it f o people s dail li es, e eed to utilise ultiple and diverse strategies to build connections across different contexts, requirements and motivations. How we do this in the specific context of food justice remains an ongoing and open question but must be balanced within broader social and environmental justice movements. 4. How does food justice fit within wider drives towards social, economic and environmental justice? Food justice is a out o e tha food, it s a out li ki g food issues to othe a d oade sustai a ility issues. Agyeman (2013: 59) o e ts that food has e o e o e of the ke a e as in which conflicts around justi e a d sustai a ilit ha e pla ed out… food has also lo g ee a d i e of so ial o e e ts . This can be seen in histories and discussions of the Black Panthers in the USA (Heynen 2009), the development of community farms (Levkoe 2006, Curran and Gonzalez 2011, Bradley and Galt 2014), race and class (Slocum and Saldanha 2013), farmers markets (Alkon and Norgaard 2009, Alkon and Mares 2012), advocacy and praxis for healthy food (Freudenberg, McDonough et al. 2011, Sbicca 12 2012) and food banks (Greenberg and Greenberg 2010, Tarasuk, Dachner et al. 2014, Farahbakhsh 2015, Loopstra 2015, Gonzalez-Torre and Coque 2016). With all these diverse spaces, actants and practices it is unsurprising that food justice movements have struggled to bridge the many diverse concerns within the agrifood system (Sbicca 2012), let alone the arena of social justice more broadly, and so remain open to many interpretations (Gottlieb and Joshi 2010, Brent, Schiavoni et al. 2015). Yet, as we indicated above, it is clear that justice in terms of food is co-constitutive with many other drives for justice, whether cultural, political, economic, social or environmental. Indeed, given the importance of parallel discussions in the field of sustainable consumption, questions of defining human needs and necessities for equitable well-being (Gough 2017) must involve questions of food justice. Food justice challenge: solidarity with related social justice struggles for positive change and accountability The particular, micro-scale nature of our own food interactions means that any changes in access, price, distribution or quality can have a direct impact on more people than other socio-economic changes. As Barnett (2010) efle ts, a a e ess a d a al sis of justi e ofte o es f o e pe ie es o i tuitio s of i justi e ; a spe ifi e e t can mobilise individuals and communities to challenge the broader structures and relations that have triggered this change in their foodways. As such, food can build a stronger community through breaking down individualism and seclusion (Levkoe 2006). This is ot to sa that food is ot as politi all e t e hed, et o ked, histo i all ou d, a d tied to nature as othe esou es e ui ed fo hu a su i al ut the e is likel o othe esou e e ui ed fo hu a su i al that is as ultu all ou d… (Agyeman and McEntree 2014: 216-217) and so has the apa it to uild a ultu e of u it i di e sit (Sbicca 2012: 465). The geographical scope of food systems – joining diverse people and places – and conceptual focus on food and the environment, health, labour, hunger, production and access (Gottlieb and Joshi 2010; Blake and Milner, both this issue) opens up more radical critiques of capitalism, racism, patriarchy, authority and power: Without e o o i , politi al a d so ial e uality e a t a hie e food justi e. Although there are multiple ways in which different people understand and practice eating, this deg ee of sha ed e pe ie e a gua l ope s up i do s i to othe s li es that e otio all eso ate with the viewer and allow us to e o e ale t to st u tu al inequities that deprive individuals of the oppo tu it to e ade uatel ou ished (Dixon 2014: 183). The concept of food justice is itself framed around the need for systemic change to address inequities within food systems and, by 13 tackling questions of mobilisation and strategies, it connects into broader discussions around democracy, citizenship, civil society and social movements (Wekerle 2004). Fa e s a d othe food o ke s do t get a fai age fo thei o k a d a y li e i food po e ty themselves While workers are increasingly visible (see Harrison 2008, Brown and Getz 2011, Alkon 2014) the literatures on food poverty have focused largely on consumer experiences and practices with debates around food access highlighting the complexity of decision-making processes for low-income groups (Bowen, Elliott et al. 2014, Chen 2016, Daniel 2016, Baumann, Szabo et al. 2017). Further, in spite of food desert literatures, Alkon et al (2013) conclude that the key barrier to obtaining desired foods is not lack of proximity or knowledge but lack of income. Purchasing food is part of a wider nexus of choices over, amongst others, accommodation, heating, transport, clothing and healthcare. Even though the UK and others are slowly recovering from the recession caused by the 2007/08 financial crisis and continuing austerity policies, wages are stagnating (O'Connor 2014) and one in five Britons live below the official national relative poverty line (Department for Work and Pensions 2017). This is reflected in the rise in demand for foodbanks; one leading UK provider, The Trussell Trust, provided over 1.3 million emergency food supplies in 2017/18, which is a nearly four-fold increase over the last five years (The Trussell Trust 2018). Therefore, stories of food can reveal much bigge a ati es of do i a e, e ploitatio , i ilisatio …a d, o asio all , it ust e said, hope a d diffe e e (Cook 2006: 659); by bringing together coalitions through particular contexts these large issues become more manageable, with individuals feeling that they can make a difference (Levkoe 2006). However, the other side to demonstrating these needs for justice is the concurrent requirement to outline both alternatives to, and pathways of transformation from, current systems, beliefs and practices in order to motivate action through providing a hopeful and different future. 5. How do we develop an effective critique of current food production strategies? While the workshop delegates agreed that local, organic, Fair Trade and community food production systems all have their benefits, debate continues as to whether these can offer a viable means to feed the global population of 10.7 billion projected by the UN by 2075 (UN Population Division 2017). Given that the existing system already produces enough to feed 1.5 times the current global population (Holt-Gimenez, Shattuck et al. 2012), this suggests some capacity to engage with more socially and environmentally responsible alternatives. Nevertheless, availability and price continue to strongly shape food access and choices, and opponents of alternative agricultural strategies argue that these 14 cannot deliver across all of these challenges. However, recent studies have challenged this hegemonic wisdom (Seufort, Ramankutty et al. 2012), opening up the terrain to offer effective critiques of current food production through acknowledging that alternatives are viable options that can operate at much larger scales than currently exist. Despite continuing debate around the relative merits of agroecology, conventional farming and smart- agriculture in the literature (Holmes 2010, Azadi, Talsma et al. 2011, Dibden, Gibbs et al. 2011), a general disquiet was felt amongst the delegates towards some of the practices of industrial agriculture with its focus on production maximisation: Global food distribution – moves food – depletes soil – cheap food – wasted – no skills in food Again, certain discourses of food were felt to have been institutionalised with a focus on a corporate- led model of agriculture, GMOs and profit over people leading to environmental and social degradation. Concerns around the commodification of life and relationships emphasized feelings of alienation and disconnection, with a general consideration that food needs to be recognised and understood as a commons resource, not just another commodity (Vivero Pol 2017). Fundamentally, this reflects a broader critique of the neoliberal capitalist, corporatist systems that have powerfully incubated and institutionalised this hegemony. While this may have become so normalised that it is difficult to think beyond (Gibson-Graham 2006), recognising that alternatives can address the global challenge of sufficient, affordable, healthy and culturally appropriate food is an important first step in considering: Ho to syste ati ally idge the gap et ee su plus a d eed hilst ai tai i g effi ie t production The idea of effi ie is pe siste t a d so, while there are many critiques of industrial agriculture, proponents can argue that it clearly does produce more than enough to feed the world despite its environmental downsides. The goods a d ads of o e tional agriculture are therefore known, defined and so understandable; as such they offer scope for improvements through research and de elop e t. I o t ast, alte ati es ep ese t u k o s ofte i te s of oth thei ideologies and outcomes. Therefore, the public may position itself as ethically virtuous but latent conservatism, social inertia and socio-economic inequality means that the value-knowledge-action gap remains when engaging with food injustices. Fu the o e, u h of the alte ati e food o ement continues to be defined by white, middle- lass i di iduals, o ga isatio s a d i stitutio s (Agyeman and McEntree 2014: 213), and this class-based perception, and arguably reality, of the types of people who do food diffe e tl potentially restricts its broader appeal (but see Figueroa and Alkon 2017). 15 Perceptions that doing food differently are niche and trendy (and a matter of taste?) This remains a critical hurdle which exponents of alternative food strategies – whether reworking or revolutionising conventional agri-food systems – need to address. Arguments over the negative environmental, labour, health and social consequences of industrial agriculture have a long history but market alternatives have remained relatively niche, e lusi e a d p e ious (Guthman 2003). The challenge to offering an effective critique is therefore grounded in the ongoing question of how to, as Bradley and Herrera (2016) reflect, decolonise food justice movements. Again, this emphasizes how an empirical focus on food speaks to wider social issues and so we end with a final reflection on whether food justice can be used to challenge long ingrained ideologies and structures. 6. Can food justice challenge the status quo of neoliberal capitalism? Fundamentally, food justice comes down to questions of power and a fundamental challenge to the domination and coercion wielded by food corporations over marginalised stakeholders, i.e. those who need to buy food to live but who lack resources. How can those who experience multiple deprivations—and their cooperative allies who seek to work with and be led by them—be empowered to collectively achieve these goals (Rowlands 1997, Allen 2003, Alkon and Guthman 2017b)? Making (global) capitalism work for me! Changing from within In challenging such structural constraints to more equitable and just relations within food systems, food justice movements must question broader neoliberal and capitalist hegemonies. But how might they embark on these processes when food movements are critiqued for opposing neoliberalism in their discourses while e a i g it th ough thei p a ti es of a ket-as- o e e t (Alkon 2014)? Alkon (2014: 31) a gues that a fo us o o su ptio a o st ai ou olle tive imaginaries of what ki ds of so ial ha ges a e ought a out – hat a e ues of ha ge ould e ope ed to us if e also sa ou sel es as itize s, eigh o s, o just hu a s (Werkheiser and Noll 2014: 204)? ‘e og isi g food s apa it to a t as a olle ti isi g fo e ibid) makes space to e pa d the politi s of the possi le . The particularities of our engagements enables food both to bring people together through a degree of commonality while still providing powerful counter-narratives that question accepted norms: Redistribute power from retailers toward producers Consolidation of the food systems; inequitable capital; power distribution along the supply system; the lack of illusion of choice Why should retailers hold a disproportionate degree of power? Would the food sector not benefit from more security and stability for all producers? What kind of alliances are possible? Consolidation 16 of food systems may improve efficiency but this does not necessarily translate into nutritional security. Of course, one condition that made corporate control over the global food system possible has been the e e ge e of the i diffe e t state . Declare hunger illegal! As Riches (2018) carefully outlines, under human rights conventions and protocols governments are obliged to ensure domestic compliance to respect, protect and fulfil the right to food of their populations. Yet in practice – with broken social safety nets, regressive income distribution and an increasingly dysfunctional industrial food system – most OECD states display utter disinclination to enshrine a right to food into national law or to accept public accountability for their failings. Until such time as effective joined up public policy prevails over private philanthropy and charitable food handouts, then food justice will be overshadowed by consumer sovereignty concerns. These issues are common in debates within alternative food movements but more purchase could be achieved through explicitly utilising the moral and ethical connotations and resonances of food justice. Food is not just an economic conundrum, a logistical concern or a way to achieve political resonance but a very real and material issue that affects millions throughout the world on a daily basis. Concluding Reflections We strongly believe that food justice remains a vital political objective for millions of people, and one that offers an important axis for mobilisation within broader socio-economic and environmental justice struggles. Through these six questions – derived as they have been from our particularly European context – we have outlined some of the key challenges facing food justice movements as they seek to move forwards, which include issues around feasibility, viability, mobilisation and ethics. These highlight areas both for further research and activism, which must work together if we want to better understand different foodways, and so build stronger and more resilient connections between diverse communities. Within the research element of this, more attention needs to be paid to the continuing gaps in the US-centric literatures, which have a predominant focus on the racial and class- based inequalities experienced by consumers, a task the papers in this special issue have begun to address. More research is needed to give space to other voices – those marginalised by gender, sexuality, disability and age as well as those suffering from a lack of access, and ability to access, healthy, high quality and tasty foods – in a global and holistic view of agri-food systems, which acknowledges too the role and agency of non-human actants. Within this we must always remember to question the power relations and contexts of food justice – where is it coming from? In the context of the workshop we were overwhelmingly coming from 17 European, white, middle-class, academic, third-sector backgrounds, which clearly shapes what we know and what we can know. It seems, perhaps, a little ironic that we call for a greater diversity of voices, and for those marginalised within food systems to be re-centralised, when we have not achieved this even within our workshop. Nevertheless, this points to the continuous and always in progress nature of such movements in search of justice and the challenges they face in terms of mobilisation and participation. Following Milner (this issue) and Loo (2014), we agree that a broader, postcolonial and participatory understanding of food justice must be cultivated in order to move beyond the local, distributive issues in which it often becomes mired; we need to make space for the broader, more-than-human connections, interactions and knowledges necessary to shape a o e e t that is itself just . Pe haps e eed to o e a a f o the conceptual baggage of food justi e a d i stead a k o ledge that e a e si pl t i g to o eptualise, o te tualise a d a hie e justice in food systems. Acknowledgements Many thanks to all of the participants and speakers at the Reading workshop and to David Evans for commenting critically on a much earlier version of this intervention. All of the arguments, analysis and interpretations in this intervention are ours and ours alone. References Agyeman, J. (2013). Introducing Just Sustainabilities: policy, planning, and practice. London, Zed Books. Agyeman, J. and J. McEntree (2014). "Moving the Field of Food Justice Forward through the Lens of Urban Political Ecology." Geography Compass 8(3): 211-220. Alkon, A. H. (2014). "Food Justice and the Challenge to Neoliberalism." Gastronomica 14(2): 27-40. Alkon, A. H. and J. Agyeman (2011). Cultivating Food Justice: Race, Class, and Sustainability. Cambridge, MA, MIT Press. Alkon, A. H., D. Block, K. Moore, C. Gillis, N. DiNuccio and N. Chavez (2013). "Foodways of the Urban Poor." Geoforum 48: 126-135. Alkon, A. H. and J. Guthman, Eds. (2017). The New Food Activism: opposition, cooperation, and collective action, University of California Press. Alkon, A. H. and J. Guthman (2017b). Introduction. The new food activism: opposition, cooperation, and collective action A. H. Alkon and J. Guthman. Berkeley, University of California Press: 1-30. Alkon, A. H. and T. M. Mares (2012). "Food Sovereignty in US Food Movements: radical visions and neoliberal constraints." Agriculture and Human Values 29(347-359). 18 Alkon, A. H. and K. M. Norgaard (2009). "Breaking the Food Chains: an investigation of food justice activism." Sociological Inquiry 79(3): 289-305. Allen, J. (2003). Lost Geographies of Power. Oxford, Blackwell Publishers Ltd. Allen, P. (2008). "Mining for Justice in the Food System: perceptions, practices, and possibilities." Agriculture and Human Values 25: 157-161. Allen, P. (2010). "Realizing Justice in Local Food Systems." Cambridge Journal of Regions, Economy and Society 3: 295-308. Azadi, H., N. Talsma, P. Ho and K. Zarafshani (2011). "GM Crops in Ethiopia: a realistic way to increase agricultural performance?" Trends in Biotechnology 29(1): 6-8. Barnett, C. (2010). "Geography and Ethics: justice unbound." Progress in Human Geography 35(2): 246-255. Barnett, C., P. Cloke, N. Clarke and A. Malpass (2011). Globalizing responsibility: The political rationalities of ethical consumption. London, Blackwell. Barnhill, A. and T. Doggett (2018). "Food Ethics I: food production and food justice." Philosophy Compass 13: 1-13. Baumann, S., M. Szabo and J. Johnston (2017). "Understanding the food preferences of people of low socioeconomic status." Journal of Consumer Culture. Besky, S. (2015). "Agricultural Justice, Abnormal Justice? An Analysis of Fair Trade's Plantation Problem." Antipode 47(5): 1141-1160. Bowen, S., S. Elliott and J. Brenton (2014). "The Joy of Cooking?" Contexts 13(3): 20-25. Bradley, K. and R. E. Galt (2014). "Practicing Food Justice at Dig Deep Farms & Produce, East Bay Area, California: self-determination as a guiding value and intersections with foodie logics." Local Environment 19(2): 172-186. Bradley, K. and H. Herrera (2016). "Decolonizing Food Justice: naming, resisting, and researching colonizing forces in the movement." Antipode 48(1): 97-114. Brent, Z. W., C. M. Schiavoni and A. Alonso-Fradejas (2015). "Contextualising Food Sovereignty: the politics of convergence among movements in the USA." Third World Quarterly 36(3): 618-635. Brown, S. and C. Getz (2011). Farmworker Food Insecurity and the Production of Hunger in California. Cultivating Food Justice: race, class, and sustainability. A. H. Alkon and J. Agyeman. Cambridge, MA, MIT Press: 121-146. Cadieux, K. and R. Slocum (2015). "What does it mean to do food justice?" Journal of Political Ecology 22: 1-26. Cairns, K. and J. Johnston (2015). Food and femininity. London, Bloomsbury. Campbell, H., D. Evans and A. Murcott (2017). "Measurability, austerity and edibility: Introducing waste into food regime theory." Journal of Rural Studies 51: 168-177. 19 Carolan, M. (2011). Embodied Food Politics. Aldershot, Ashgate. Che , W. . "F o Ju k Food to T eats . Ho Po e t “hapes Fa il Food P a ti es." Food, Culture & Society 19(1): 1-20. Clapp, J. and G. Scrinis (2016). "Big Food, nutritionism and corporate power." Globalizations 14(4): 578-595. Clendenning, J., W. H. Dressler and C. Richards (2016). "Food Justice or Food Sovereignty? Understanding the Rise of Urban Food Movements in the USA." Agriculture and Human Values 33: 165-177. Cloke, P., J. May and A. Williams (2017). "The geographies of food banks in the meantime." Progress in Human Geography 41(6): 703-726. Cook, I. (2006). "Geographies of Food: following." Progress in Human Geography 30(5): 655-666. Curran, C. J. and M.-T. Gonzalez (2011). "Food Justice as Interracial Justice: urban farmers, community organizations and the role of government in Oakland, California." The University of Miami Inter- American Law Review 43(1): 207-232. Daniel, C. (2016). "Economic constraints on taste formation and the true cost of healthy eating." Social Science & Medicine 148: 34-41. Department for Work and Pensions (2017). Households Below Average Income: 1994/95 to 2015/16. Westminster, Department for Work and Pensions. Dibden, J., D. Gibbs and C. Coklin (2011). "Framing GM Crops as a Food Security Solution." Journal of Rural Studies 29: 59-70. Dixon, B. A. (2014). "Learning to See Food Justice." Agriculture and Human Values 31: 175-184. Dowler, E. and D. O'Connor (2012). "Rights Based Approaches to Addressing Food Poverty and Food Insecurity in Ireland and UK." Social Science & Medicine 74(1): 44-51. DuPuis, E. M. and D. Goodman (2005). "Should we go home to eat?: Towards a reflexive politics of localism." Journal of Rural Studies 21(3): 359-371. Eaton, E. (2017). How Canadian Farmers Fought and Won the Battle against GM Wheat. The new food activism: opposition, cooperation, and collective action A. H. Alkon and J. Guthman. Berkeley, University of California Press: 55-80. Evans, D. (2014). Food Waste: home consumption, material culture and everyday life. London, Bloomsbury. FAO, IFAD, UNICEF, WFP and WHO (2017). The State of Food Security and Nutrition in the World: building resilience for peace and food security. Rome, FAO. Farahbakhsh, J. (2015). "How do Student Clients of a University Based Food Bank Cope with Food Insecurity?" Canadian Journal of Dietetic Practice and Research 76(4): 200-203. 20 Ferguson, H. and the Northern Rivers Landed Histories Research Group (2016). "More than Something to Hold the Plants Up: soil as a non-human ally in the struggle for food justice." Local Environment 21(8): 956-968. Figueroa, M. and A. H. Alkon (2017). Cooperative Social Practices, Self-Determination, and the Struggle for Food Justice in Oakland and Chicago. The new food activism: opposition, cooperation, and collective action A. H. Alkon and J. Guthman. Berkeley, University of California Press: 206-231. Fisher, A. (2017). Big Hunger. Cambridge, MA, MIT Press. Food Ethics Council (2010). Food Justice: the report of the Food and Fairness Inquiry. Brighton, Food Ethics Council. Freudenberg, N., J. McDonough and E. Tsui (2011). "Can a Food Justice Movement Improve Nutrition and Health? A Case Study of the Emerging Food Movement in New York City." Journal of Urban Health 88(4): 623-636. Gaith aite, K. . "I feel I gi i g so ethi g a k to so iet : Co st u ti g the a ti e itize and responsibilising foodbank use." Social Policy and Society 16(2): 283-292. Gibson-Graham, J. K. (2006). A post-capitalist politics. Minneapolis, University of Minnesota Press. Glennie, C. and A. H. Alkon (2018). "Food Justice: cultivating the field." Environmental Research Letters 13: 1-13. Godfray, H. C. J., I. R. Crute, L. Haddad, D. Lawrence, J. F. Muir, N. Nisbett, J. Pretty, S. Robinson, C. Toulmin and R. Whiteley (2010). "The Future of the Global Food System." Philosophical Transactons of the Royal Society B 365(1554): 2769-2777. Gonzalez-Torre, P. L. and J. Coque (2016). "How is a Food Bank Managed? Different Profiles in Spain." Agriculture and Human Values 33(1): 89-100. Goodman, M. K., M. Carolan, A. Lopez-Carr, D. Lopez-Carr, L. Jarosz, P. McMichael and C. Sage (2014). "The Ecologies of Food Power: Environment and Food Book Symposium." Sociologia Ruralis 54(1): 94- 115. Gottlieb, R. and A. Joshi (2010). Food Justice. Cambridge, MA, The MIT Press. Gough, I. (2017). "Recomposing consumption: defining necessities for sustainable and equitable well- being." Philosophical Transactons of the Royal Society A 375. Greenberg, M. and G. Greenberg (2010). "Food Pantries, Poverty, and Social Justice." American Journal of Public Health 100(11): 2021-2022. Guthman, J. (2003). "Fast Food/Organic Food: reflexive tastes and the making of 'yuppie chow'." Social and Cultural Geography 4(1): 45-58. Guthman, J. (2006). "Neoliberalism and the making of food politics in California." Geoforum 39: 1171- 1183. Guthman, J. (2008a). "Bringing good food to others: investigating the subjects of alternative food practice." Cultural Geographies 15(4): 431-447. 21 Guthman, J. (2008b). ""If They Only Knew": Color Blindness and Universalism in California Alternative Food Institutions." Professional Geographer 60(3): 387-397. Guthman, J. (2012). "Doing Justice to Bodies? Reflections on Food Justice, Race, and Biology." Antipode. Guth a , J. a d “. B o . "Midas ot-so-golden touch: on the demise of methyl iodide as a soil fumigant in California." Journal of Environmental Policy and Planning 18(3): 324-341. Harrison, J. (2017). Taking a Different Tack: Pesticide Regulatory-Reform Activism in California. The new food activism: opposition, cooperation, and collective action A. H. Alkon and J. Guthman. Berkeley, University of California Press: 31-54. Harrison, J. L. (2008). "Lessons Learned from Pesticide Drift: a call to bring production agriculture, farm labor, and social justice back into agrifood research and activism." Agriculture and Human Values 25(2): 163-167. Hayes-Conroy, A. (2010). "Feeling Slow Food: visceral fieldwork and empathetic research relations in the alternative food movement." Geoforum 41(734-742). Hayes-Conroy, A. and J. Hayes-Conroy (2013). Doing Nutrition Differently: critical approaches to diet and dietary intervention. Farnham, Ashgate. Herman, A. (2015). "Enchanting Resilience: relations of care and people-place connections in agriculture." Journal of Rural Studies 42: 102-111. Herman, A. (2016). "'More-than-human' resilience(s)? Enhancing Community in Finnish Forest Farms." Geoforum 69: 34-43. Heynen, N. (2009). "Bending the Bars of Empire from Every Ghetto for Survival: the Black Panther Party's Radical Antihunger Politics of Social Reproduction and Scale." Annales of the Association of American Geographers 99(2): 406-422. Heynen, N., H. E. Kurtz and A. Trauger (2012). "Food Justice, Hunger and the City." Geography Compass 6(5): 304-311. HLPE (2014). Food Losses and Waste in the Context of Sustainable Food Systems. Rome, Committee on World Food Security. Holmes, B. (2010). "Veggieworld: why eating greens won't save the planet." New Scientist(14 July). Holt-Gimenez, E., A. Shattuck, M. Altieri, H. Herren and S. Gliessman (2012). "We Already Grow Enough Food for 10 Billion People...and Still Can't End Hunger." Journal of Sustainable Agriculture 36(6): 595- 598. Holt-Gimenez, E. and Y. Wang (2011). "Reform or Transformation? The Pivotal Role of Food Justice in the U.S. Food Movement." Race/Ethnicity 5(1): 83-102. Howard, P. (2016). Concentration and Power in the Food System: who controls what we eat? London, Bloomsbury. 22 International Panel of Experts on Food Systems (IPES-Food) (2017). Too Big to Feed: Exploring the impacts of mega-mergers, consolidation and concentration of power in the agri-food sector. www.ipes-food.org Jubas, K. (2007). "Conceptual Con/fusion in Democratic Societies: understandings and limitations of consumer citizenship." Journal of Consumer Culture 7(2): 231-254. Kenny, T. and C. Sage (2018). Food surplus as charitable provision: obstacles to re-introducing food as a commons. Routledge Handbook of Food as a Commons. J. L. V. Pol, T. Ferrando, O. d. Schutter and U. Mattei. Abingdon, Routledge. Levkoe, C. Z. (2006). "Learning Democracy through Food Justice Movements." Agriculture and Human Values 23: 89-98. Loo, C. (2014). "Towards a More Participative Definition of Food Justice." Journal of Agricultural and Environmental Ethics 27: 787-809. Loopstra, R. (2015). "Food Bank Usage is a Poor Indicator of Food Insecurity: insights from Canada." Social Policy and Society 14(3): 443-455. Massey, D. (1999). Imagining Globalization: power-geometries of time-space. Global Futures: Migration, Environment and Globalization. A. Brah, M. J. Hickman and M. a. G. Mairtin. Basingstoke, Palgrave Macmillan: 27-44. McEntree, J. (2011). Realizing rural food justice: Divergent locals in the northeastern United States. Cultivating Food Justice. A. H. Alkon and J. Agyeman. Cambridge, MA, The MIT Press: 239-260. Moragues-Faus, A. (2017). "Problematising justice definitions in public food security debates: Towards global and participative food justice." Geoforum 84(95-106). O'Connor, S. (2014). Wage Growth Feeble as UK Economy Recovers. Financial Times. Riches, G. (2018). Food Bank Nation: poverty, corporate charity and the right to food. London, Routledge. Riches, G. and V. Tarasuk (2014). Canada: thirty years of food charity and public policy neglect. First World Hunger Revisited: food charity or the right to food? G. Riches and T. Silvasti. London, Palgrave Macmillan UK: 42-56. Rowlands, J. (1997). Questioning Empowerment: Working with Women in Honduras. Oxford, Oxfam. Sage, C. (2013). "The interconnected challenges for food security from a food regimes perspective: Energy, climate and malconsumption." Journal of Rural Studies 29: 71-80. Sage, C. (2014). "The transition movement and food sovereignty: From local resilience to global engagement in food system transformation." Journal of Consumer Culture 14(2): 215-236. Sbicca, J. (2012). "Growing Food Justice by Planting an Anti-Oppression Foundation: opportunities and obstacles for a budding social movement." Agriculture and Human Values 29: 455-466. Sen, A. (1981). Poverty and Famines: an essay on entitlement and deprivation. Oxford, Oxford University Press. http://www.ipes-food.org/ 23 Sen, A. (1999). Development as Freedom. Oxford, Oxford University Press. Seufort, V., N. Ramankutty and J. A. Foley (2012). "Comparing the Yields of Organic and Conventional Agriculture." Nature. Slocum, R. and K. Cadieux (2015). "Notes on the Practice of Food Justice in the U.S.: understanding and confronting trauma and inequity." Journal of Political Ecology 22: 27-52. Slocum, R., K. Cadieux and R. Blumberg (2016). "Solidarity, space, and race: toward geographies of agrifood justice." Justice Spatiale|spatial JusticE 9. Slocum, R. and A. Saldanha, Eds. (2013). Geographies of race and food fields, bodies, markets. . Aldershot, Ashgate. Smith, J. and P. Jehlicka (2013). "Quiet Sustainability: fertile lessons from Europe's Productive Gardeners." Journal of Rural Studies 32: 148-157. Stuckler, D. and M. Nestle (2012). "Big Food, Food Systems and Global Health." PLoS Med 9(6). Tarasuk, V., N. Dachner, A.-M. Hamelin, A. Ostry, P. Williams, E. Bosckei, B. Poland and K. Raine (2014). "A Survey of Food Bank Operations in Five Canadian Cities." BMC Public Health 14(1): 1234. The Trussell Trust. (2018). "End of Year Stats." Retrieved 3 July, 2018, from https://www.trusselltrust.org/news-and-blog/latest-stats/end-year-stats/#fy-2012-2013. UN Population Division (2017). World Population Prospects: the 2017 revision, key findings and advance tables. New York, Department of Economic and Social Affairs, UN. Vivero Pol, J. L. (2017). "Food as Commons or Commodity? Exploring the Links between Normative Valuations and Agency in Food Transition." Sustainability 9(442). Wekerle, G. R. (2004). "Food Justice Movements: policy, planning, and networks." Journal of Planning Educaton and Research 23: 378-386. Werkheiser, I. and S. Noll (2014). "From Food Justice to a Tool of the Status Quo: three sub-movements within local food." Journal of Agricultural and Environmental Ethics 27: 201-210. Wheeler, K. (2012). Fair Trade and the Citizen-Consumer: shopping for justice? Basingstoke, Palgrave Macmillan. Williams, J. M. and E. Holt-Giménez, Eds. (2017). Land Justice: re-imagining land, food, and the commons. Berkeley, CA, Food First Books. Woodall, P. and T. Shannon (2018). "Monopoly power corrodes choice and resiliency in the food system." The Antitrust Bulletin 63(2): 198-221. https://www.trusselltrust.org/news-and-blog/latest-stats/end-year-stats/#fy-2012-2013 
work_kkc7ae7rp5cdtje3qw7oxg3jm4	----	De-centring the psychology curriculum: Diversity, social justice, and psychological knowledge This is a repository copy of De-centring the psychology curriculum: Diversity, social justice, and psychological knowledge. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/141693/ Version: Accepted Version Article: Kontopodis, M and Jackowska, M (2019) De-centring the psychology curriculum: Diversity, social justice, and psychological knowledge. Theory and Psychology, 29 (4). pp. 506-520. ISSN 0959-3543 https://doi.org/10.1177/0959354319858419 © 2019, The Author(s). This is an author produced version of a paper published in Theory and Psychology. Uploaded in accordance with the publisher's self-archiving policy. eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ 1 De-centring the Psychology Curriculum: Diversity, Social Justice & Psychological Knowledge Michalis Kontopodis & Marta Jackowska self archived – pre-publication version to be published in 2019 with Theory & Psychology Abstract The psychology curriculum has close ties to the histories and cultural traditions of industrialised societies’ white middle-class populations, so it is unclear how it may reflect the interests and values of students from a variety of ethnic, racial and socio-economic backgrounds in the contemporary higher education settings. To address this question, we established an innovative research project of de-centring the psychology curriculum, so that BA students from diverse backgrounds could familiarise themselves with cultural-historical, postcolonial, feminist and other critical psychological approaches as well as reflect on the histories, contexts and epistemologies of classic developmental psychological theories and research. We conducted focus group discussions with the students as to explore their views on the introduced contents and approaches. The findings of our research form the basis for critical reflection on the possibilities and challenges of de-centring the psychology curriculum in the contemporary university settings. Introduction Since October 1974, when the American journal Teaching of Psychology was founded, long debates on psychology teaching have taken place in this as well as in similar forums such as the Studies in Higher Education, which is linked with a UK-based international academic society. Recent research has focused on a variety of topics such as: computer-based demonstrations in cognitive psychology (Copeland Scott & Houska, 2010); curriculum contents and psychology workforce readiness (Wielkiewicz & Meuwissen, 2014); online discussion forums and support with assignments (Sheen, AlJassmi & Jordan, 2017). There has been little research, however, on student views and interests with regards to the contents of the contents of the psychology curriculum. Psychology curricula have initially been developed in Global North societies and have close ties to the histories and cultural traditions of these societies’ white middle-class populations. The ethnic, racial and socio-economic characteristics of psychology students have, however, changed significantly in the past decades, and diverse groups of students are now entering higher education institutions in countries such as US, UK, Germany, Canada or Australia (Richardson, 2008; Maringe, Foskett & Woodfield, 2013; Varghese, 2013). Psychology is attracting increasing interest in the Global South, as well (Stevens & Gielen, 2007; Takooshian, Gielen, Denmark & O'Roark, 2018). The characteristics of modern psychology students beg a question on how the psychology curriculum may reflect the interests and values of students from diverse ethnic, racial and socio- economic backgrounds. Generally speaking, students from ethnic and racial minority groups and lower socio-economic backgrounds manifest significant differences from white middle-class 2 populations in subject related interests, learning styles, understandings and performance levels in higher education (Burke, 2012). While focusing specifically on psychology, Hodges and colleagues (2007) suggested that students from ethnic and racial minority groups felt loyal towards their psychology degrees; yet they simultaneously reported feelings of exclusion from, and underrepresentation in the psychology curricula. Initially the psychology curriculum (as well as psychological theories and research) reflected the cultural and historical background of white middle-class populations, which could access the relevant study and research trajectories. Psychological Societies such as the British Psychological Society have historically updated their guidelines for undergraduate and post-graduate psychology programmes as to incorporate new research areas, approaches and theoretical debates. As a result, psychology curricula in the UK currently cover qualitative as well as quantitative methodologies, discuss theoretical and historical issues in parallel to exploring neurocognition, and sometimes entail a few cross-cultural and global references – which becomes a significant selling point when marketing degrees to international students (cf. Lumby & Foskett, 2015). However, liberal and open-minded such an approach to the teaching of psychology may seem to be at a first glance, there is little reflection on the assumed impartiality and value-neutrality of most psychological knowledge. Psychology has often been criticised as the science of the “white, middle-class man” (Staeuble, 1991; Teo, 2005). It has also sometimes been racist – especially in its early phases (Richards, 2011; Lack & Abramson, 2014). In opposition to white-centred, racist psychological theory and research, Fanon published the seminal “Black skin, white masks” in the 60s (Fanon, 1952/1967), while movements to establish so-called “indigenous” or “indigenized” psychologies were taking place in the Philippines (Paredes-Canilao & Babaran-Diaz, 2013), in Taiwan (Hwang, 2005), and later on in Latin America (Kontopodis, Magalhães & Coracini, 2016), India (Sinha, 1997) and elsewhere in the world (cf. Jahoda, 2016; Brock, 2014). Various efforts to establish non-white- man-focused psychological approaches have taken place in North-Western settings, too (feminist, queer, postcolonial, etc., cf. Burman, 2005; 2017; Parker, 2015; Prilleltensky & Nelson, 2002; Walkerdine, 2001). In this frame, many scholars have argued for the necessity to “de-centre” theory and research, so that diverse polyphonic and polycentric psychologies emerge (Staeuble, 2004; Hook, 2012). Taking the aforementioned debates as a point of departure, we established an innovative research project of de-centring the psychology curriculum, so that BA students from diverse backgrounds could familiarise themselves with cultural-historical, postcolonial, feminist and other critical psychological approaches as well as reflect on the histories, contexts and epistemologies of classic developmental psychological theories and research. We aimed to investigate the students’ views on the introduced contents, and reflect, on the basis of this investigation, on how the psychology curriculum may reflect the interests and values of students from diverse ethnic, racial and socio- economic backgrounds in the contemporary higher education settings. The present article presents briefly the methodology of our study and its main findings; it concludes with a discussion on the possibilities and challenges of de-centring the psychology curriculum in the contemporary university settings while taking into account the contested history of psychology as the science of the “white, middle-class man”. Research Design & Methodology 3 Year 1 BA students from diverse ethnic, racial and socio-economic backgrounds at a South London university, have been invited to study the histories, contexts and limitations of classic developmental psychological theories in a series of lectures and seminars focusing on cultural- historical (Hedegaard, 2011; Stetsenko, 2017), postcolonial (Enriquez, 1995; Hook, 2012), feminist (Burman, 2017; Walkerdine, 2001) and other critical psychological approaches (Kontopodis, 2014; Morss, 1996). These lectures and seminars have been part of a compulsory module on psychology and human development, by the first author, which included classic approaches and references to contemporary empirical research, as well. Specifically, in five 2- hour-long lectures we explored historical, epistemological and theoretical issues in psychology and human development on the basis of the above-mentioned literature. In another five lectures, classic theories of cognitive, emotional and moral development were discussed in relation to empirical research on timely topics such as learning difficulties; new media; parenting; bullying (cf. Berk, 2013; Smith, Cowie & Blades, 2015). Lectures were attended by a cohort of about 80 students and were followed by seminars and tutorial sessions aimed at supporting students in reading and reflecting on the course literature, and at preparing for their assignment. The module was assessed by means of essay writing according to a variety of typical criteria, such as presentation and language, clarity and coherence, appropriate use of terms and critical analysis and synthesis. These contents aimed specifically at addressing the needs and interests of a diverse student population: approximately 60% of the students came from middle socio-economic and/ or White British backgrounds and 40% from lower socio- economic and/or non-white ethnic backgrounds (primarily British African-Caribbean, Asian and Arabic). Many of them were also mature students and/or parents themselves as indicated by the data collected for their registration (20% 30 years old or older, 10% 25-29 years old and 70% 18- 24 years old on average).1 Our research project focused on a small opportunity sample (n=7) of students attending the course, who reported volunteering to participate in the study for a variety of reasons including curiosity to engage with research procedures, interest in expressing their views on the course, and/or motivation to socialise with peers. Two focus groups (Bohnsack, Pfaff & Weller, 2010) in which three and four participants, respectively, took part, were conducted approximately for 1,5 hour each during the last two weeks of the course, and before grades were announced. Even though our focus group sample was small, the analysis of the participants’ grades and demographic information revealed that they could be seen as quite diverse in terms of ethnic backgrounds, age, family socio-economic circumstances, entry points and final grades. In total six out of seven participants were female; four participants were younger than 21 years, one was 23 and 2 were aged 30-35 years. Four participants were mature students and 2 had children. Three participants categorised themselves as white and the rest were of Asian or black-African/Caribbean ethnic background. In terms of parental education, two participants’ parents had no formal qualification, three had mothers but not fathers with university education, one participant’s both 1 The university name is not given as to guarantee the anonymity of participants and keep confidential relevant institutional information. The above-mentioned percentages are high when comparing to other UK Universities; they reflect the entry criteria for BA students in this particular university: The average tariff required to enter the university where the research took place was about 285 points while minimum entry standards for Cambridge are around 600 points (the highest entry level in the UK in the respective year). Out of a total of 126 universities in the UK there are about 20-25 universities with lower entry standards than that (the lowest entry standard in the UK was 220). Resource: http://www.thecompleteuniversityguide.co.uk/league-tables/rankings?o=Entry+Standards (date of access: 11-Jan-19). 4 parents had a university degree and one’s had A-levels and GCSE qualifications suggesting a broad range of parental education level amongst participants. Four participants had own or parental total income less than £20.000, and three had parental family income between 20.000-40.000 per year; which is a very low income for London living standards. In terms of essay grades two participants achieved only 40%, one participant received 58%, one 68% and there were also a 78% grade and 2=two 85% grades. One participant was diagnosed with dyslexia. In terms of entry criteria, two mature students were accepted onto the course based on their prior training and/or relevant work experience in education. Three other participants, aged 19-21 years, entered the university having obtained about 280 entry points or 320 entry points from their A levels, respectively. Two participants were international students. The questions were open with a minimal probing by the coordinator of the discussion as to minimise bias and facilitate a debate between the focus groups’ participants. Two researchers were present in the group discussions: the first author, who was the main lecturer at the developmental psychology course (white, male in his thirties) and a white (female) research assistant in her mid- twenties, who was not involved in the course and helped with the data collection. The focus group discussions were video-recorded. One more researcher (the second author) was later on involved in transcribing and analysing data, as to take a third person’s viewpoint under consideration for the interpretation. The group discussions took place in a quiet office at the university. The atmosphere was relaxed; the students laughed a lot and mostly agreed with each other. The students were seen as “experts” in the respective field and topic of investigation (Gläser & Laudel, 2004). The analysis and interpretation followed sociological approaches to knowledge and discourse (Keller, 2012; Keller, Hornidge & Schünemann, 2018) in three steps: (a) mapping of the overall structure and progression of the focus group discussion and identification of main- and sub-topics; (b) focusing on longer extracts with dense information and interpreting of what meaning is communicated and how this meaning is communicated; (c) verifying the generated categories on the whole set of data/ generalising i.e. reconstruction of implicit understandings, and discursive patterns. Particular attention was therefore paid to the choice of words as well as to the silences, interruptions and intonation. Additional materials collected included a questionnaire on the students’ personal data and family backgrounds as well as the standard course evaluation questionnaires and the student’s grades. Ethical permission to conduct this project was granted by the university authorities and all standard procedures were followed (informed consent, confidentiality, anonymity, optional participation, data safety cf. Brooks, te Riele & Maguire, 2014). The focus group discussions took place in addition to class activity outside the class time; there was no link to the class activities and any obligation or benefit for students to participate in the research. Learning about Cultural Identities is “Intriguing” The introduction of cultural-historical and postcolonial literature aroused the curiosity and interest of the students participating in the focus groups. Various students used the word “intriguing” a few times and in different moments of the group discussions as to describe their feelings about this literature, as in the example below: G2-65. D. I would say it was (…) was really quite intriguing to me it’s something 66. I’m quite interested in in terms of ahm, people living with dual, ahm cultural 67. identities (…) I was really intrigued when I saw that 5 69. this ((cultural identity)) is another layer another, ahm, aspect of child 68. development Damien2 uses the word “intriguing” here as to emphasise his genuine interest in the developmental approach to multiple cultural identities by Hedegaard (2011). Damien, refers to Hedegaard’s approach as of personal interest and relevance to him, since he himself has contact with i.e. has grown up in an area where many children have dual cultural identities: one at home and one referring to the broader area i.e. the national state they live in. He did not seem to expect, that this aspect of everyday life is included in scientific theorising on child development. While the concrete extract above refers to the specific contents, “intriguing” – as voiced by others at different times during the focus group – also referred to the students’ feeling of appreciation with the lecturers’ decision to include such literature in the course in general. The students explained that the discussed topics inspired them to engage with the relevant developmental psychological readings and theoretical models and to reflect on these while taking under consideration their personal experiences. Moreover, as the students mentioned in the focus group discussions, the readings and class activities stimulated conversations on cultural identities and multicultural education with peers outside the university. The students used words such as “relate to”, “relatable”, “engaging” in this context and seemed to agree among themselves that diversity, the development of multiple cultural identities and multicultural education are “relatable” topics of study. In the following extract another student, Horathi, argues: G2-141. H. (…) When you, when you can relate to a specific ((topic)), you know like 142. multicultural or something, I think it’s, I think it’s really 143. helpful and kind of engaging when you kind of relate to something as well. According to the students, the course’s focus on diversity motivated them to make the effort required to participate actively in the relevant class activities and to engage – before and after the lectures – with the relevant academic readings. Engaging with readings and course materials is quite challenging for students from diverse ethnic, racial and low socio-economic backgrounds in general, as they are less familiar with the academic reading and writing styles than the students from white and middle or upper socio-economic backgrounds, as we know from the relevant literature (Richardson, 2008; Burke, 2012). Addressing contents that matter for the students and reflect the challenges, which they are confronted with in their everyday lives, seems to be of particular importance, in this frame – not only in terms of student motivation but also in terms of recognition and inclusion of the diverse student voices in the psychology curriculum (cf. Boysen, 2011). Humane Approaches and Social Justice After talking about the “intriguing” and “relatable” course contents, as mentioned above, the students expressed value-related dispositions and referred to their own criteria, on the basis of which they contrast various approaches to children’s development with each other and evaluate these. Contrasting critical approaches to classic behaviourism or current neurocognitive thinking, the participating students agreed with each other that they were more interested in cultural- 2 All names are pseudonyms matching the participants’ ethnic background and gender so that the differences among the various participants are easily detectable for the readers. 6 historical, postcolonial and feminist approaches because these lead to “person-focused” i.e. “humane” professional practice, for example in school spaces: G2-427. K: I think it completely changes your approach as well. Because if, if you 428. have a teacher ((…)) from a different course, they will focus on, ok, let’s do 429. science, let’s, let’s let’s do that and that. Whereas with that knowledge, that 430. we have from here, you will approach it, you approach the person, or what 431. drives you ((…)) 432: H: Like you won’t be focused on just the curriculum, like, like I 433. said, you’ll be understanding of the actual knowledge and then executing it 434. it’ll be a lot more, I guess it’ll be a bit more, not, not fun, in a fun way, but 435. it’ll be a bit more 434. K: humane. 435. H: Yeah, a bit more adventurous and a bit more, a bit of a different manner. 436. Like you’ll see things from a different sort of (~). Both Kasia and Horathi agree in this extract that the cultural-historical approach enables teachers to approach and facilitate teaching and learning in a more “humane” or “person-” oriented, as opposed to subject-oriented manner. While Kasia used the words “drives you”, Horathi used the word “adventurous” implying that a person-cantered approach is dynamic, but that it may be more challenging and also interesting and efficient for both teachers and pupils. Another issue that was brought into the discussion and evaluation of various approaches to child development by the students was that of social justice and discrimination. Certain readings referred to examples from classroom observations in which white teachers did not fully acknowledge the challenges that pupils from different ethnic backgrounds were facing. Although our own explanations in the lectures brought to students’ attention various perspectives and challenges teachers may have been facing, the participating ethnic minority students seemed to identify themselves with the ethnic minority pupils in these examples, rather than with the teachers. The students expressed much concern that pupils may be treated unfairly because of their colour, race, origin or ethnicity. Therefore, they agreed that critical and culturally sensitive psychological approaches are necessary to develop best practice in teaching and childcare institutions. The extract presented below is exemplary for this kind of talk: G1-228. B: yeah, me and Raha were discussing about with another friend as well, 229. and hmm it was it was unfair on them (…) I think like any if you reflect on 230. how it is now (…) you can see how hmm (…) some people do get treated 231. unfairly because of where (…) they’ve come from and, the back ((…)) 232. and like just because they come from another country and some people 233. don’t. I know it isn’t an issue now ‘cause you hear on the news and stuff 234. (…) but like the text it was really unfair on them because the teachers 235. didn’t treat them equally (…), and you know in (…) education in general 236. the policy is that they always say that everyone should be treated fairly 237. and equally and no one should be discriminated or anything like that, so 238. for me to see that in the text it was just like, that’s was just like that’s quite 239. sad like why would them have do that that’s not really nice. Discussing value-related issues openly occurred quite intuitively since the readings and discussed materials offered the ground for such a debate to take place. Beverley expresses here her concern that pupils may be treated unfairly in school because of their country of origin. Through repeating 7 words like “unfair on them”, “really unfair”, “equally”, “discrimination”, “not really nice” she takes a clear position on the side of the pupils who may have been discriminated, and emphasises that none should be discriminated in education and in society, in general, which was a shared concern among the other students, too. Psychological Knowledge and Epistemological Concerns Psychology has not only been the science created by and studied primarily by the “white, middle- class man”; it has also been one of the main disciplines that enabled that “white, middle-class man” to help “Others” to “develop” – the “Others” being from diverse ethnic, racial and socio-economic backgrounds (Teo, 2005; Mills, 2014). “Knowledge production” and “development” have not taken place, however, on neutral grounds, but within a continuing global history of discrimination, racism, wars, and exploitation of various local populations (Mignolo, 2012; Kontopodis, 2014); The science of psychology and – more broadly speaking – the university, as an institution, have unfortunately, often being an intrinsic part of this contested history (cf. Howell, & Tuitt, 2003; Richards, 2011; Parker, 2015; Wilder, 2013). The “Others” may nowadays study psychology themselves, and then work as psychology practitioners in their own local communities and places of origin, instead of the communities relying on the psychological services provided by white, middle-class psychologists; this shift does not unfortunately, however, imply straightforward shifts in the historically rooted unequal distribution of power (cf. Hook, 2007). In our focus groups, we were quite perplexed to realise that, even if the students reflected explicitly and critically on value-related issues and social justice with regards to psychological theory and practice, as referred to above; this reflection was part of a broader endeavour though to identify the “best” developmental psychological knowledge that would enable the “perfect” practice for the “benefit” of all children: G2-551. D: I just think some, some knowledge of developmental psychology ahm could make 552. a difference to so many people, if they knew, if they just knew the effects of so 553. many things that are [going] 554. H: [oh yeah] 555. D: around their children, [around themselves] 556. K: [it’s power it’s a] power 557. D: (…) around their teenagers, yeah, it’s amazing ((…)) 573. D: Well yeah what you’ re saying there is no handbook for being a good parent. You 574: know, there are norms, to every society and every culture, but there is no 575: handbook that says do this and do that and you’ll be able to be a perfect parent. 576: (…) however if you have someone with knowledge of developmental 577. K: you’ll 578. D: have perfect child psycho[logy] 579. H: [you’ll] understand which factors 580. D: regardless of your culture (...) regardless [of your] 581. K: [What could] harm, (…) what [could], 582. H: [yeah] 583. D: gender. Yeah, you could have a rough idea of how, of what to do best by the child 584. H: or to benefit, what would be beneficial for it In this example, echoing each other, the three students agree that developmental psychological knowledge could be beneficial for any child regardless of the child’s culture or gender. In 8 accordance with widespread popular understandings, the students express a strong belief in psychology as a system of knowledge that is objective and impartial – even universal – and aims at benefiting all children – a discourse, which, as already explained, has been much debated in the relevant critical psychological literature. Questioning the discourse that psychological knowledge is “objective” and “universal” proved to be more difficult for the BA students than we had anticipated; The students, as a matter of fact, had spent a significant amount of money and resources to study psychology, hoping to obtain “objective” knowledge and “help” their families and communities after their graduation. Psychology graduates from diverse ethnic, racial and socio-economic backgrounds may, in such a frame, reproduce rather uncritically the so-called paternalist approach i.e. seek affirmation of superiority through the provision of help in their professional roles, and practices instead of raising awareness of the complex structures, viewpoints, and power relations that create and maintain exploitation and inequality (cf. Stein & Andreotti, 2016). The question poses itself here – echoing Brock (2006) – whether a “de-colonial”, “postcolonial”, “feminist” or “indigenous” “psychology” “curriculum” is possible at all, or whether these word combinations are oxymora and no de- centered psychology curriculum can ever exist. It would be far stretching for us to adopt such a position without further investigation; we suggest though that lecturers and students should continuously reflect on the power relations that have historically shaped the production of psychological knowledge, and be aware, in this frame, of the inherent difficulties entailed in challenging prevailing understandings of the nature and function of psychological knowledge. Discussion and Conclusions: De-centring the Psychology Curriculum The psychology curriculum has close ties to the histories and cultural traditions of industrialised societies’ white middle-class populations. Psychology students are no longer, however, a homogenous group largely consisting of white, middle-class men. It is timely and worthy, in this frame, to bring a variety of critical psychological readings for debate into university lecture theatres and seminar rooms, and to discuss the foundations, histories and potential limitations of psychological knowledge with diverse students. The present article explored how the contents of the psychology curriculum can reflect the interests and values of students from diverse ethnic, racial and socio-economic backgrounds. While taking critical distance from psychology as the science of the “white, middle-class man” (cf. Hook, 2012; Teo, 2005), we established an innovative research project of de-centring the psychology curriculum, so that BA students from diverse backgrounds could familiarise themselves with polyphonic and polycentric psychologies (Staeuble, 2004). By analysing focus group discussions with the students, we explored their views on the introduced contents and approaches. The scale of our research has obviously been limited; follow-up studies with larger samples and repeated focus groups over longer periods of time could explore potential differences, in terms of ethnic, racial and socio-economic backgrounds and gender, in the discursive positioning among various students as well as document potential changes in their views and understandings over time. According to the analysis of the focus group discussions, students were “intrigued” by cultural- historical, feminist, postcolonial and other critical psychology approaches, as these approaches address issues which the students encounter in their everyday lives in – often marginalised – ethnic communities. The students expressed concerns with regards to diversity, multicultural education and social justice in relation to psychological theory and professional practice, and brought to the 9 foreground their own everyday experiences when doing that. At the same time, it proved difficult for the students to question the discourse that psychology is a system of objective, impartial and even universal knowledge that aims at benefiting all – a discourse, which has been much debated in the relevant critical psychological literature. On the basis of these findings and echoing current research and debates on de-colonising higher education (Stein & Andreotti, 2016), we propose that the psychology curriculum should not only enable students to access to culturally enriched psychology handbooks and teaching materials; it should also enourage continuous critical reflection on the values and epistemological dispositions entailed in psychological theory and research. This is a difficult task though: relevant theory and research in the field of “indigenous psychologies” (Brock, 2014) as well as in the fields of “postcolonial” and “de-colonial studies” caution that particular forms of knowledge and certain modes of life have been privileged over others in the course of modernisation. In this context, a wide range of people around the globe has often not even been able to communicate their views and participate into the relevant institutional spaces (cf. Spivak, 2012; Mills, 2014). Even if there is no straightforward way to address this issue, it is important that psychology faculty reflects on the fact that psychological knowledge production and dissemination has not taken place on neutral grounds, but within a continuing global history of racism, inequality and asymmetrical relations of power between children and adults (Parker, 2015; Prilleltensky & Nelson, 2002). Following from such a critical stance, psychology faculty may undertake a few concrete steps as to address the challenges in dialogue with their diverse students. These steps would be:  Creating spaces for psychology students from diverse ethnic, racial and socio-economic backgrounds and age groups to explore their own questions;  Discussing epistemological and value-related issues openly with students from diverse ethnic, racial and socio-economic backgrounds, who bring with them their own interests, forms of knowledge and value-related positions, as well as their own community histories and future imaginaries;  Empowering students to search for and critically analyse differentiated readings and sources of information in their own languages on topics of their own interests. Student engagement could be facilitated through self-organised student seminars and study groups, as well as through alternative assessment formats such as student presentations or small-scale research projects. Of course, this would also require appropriate resources, such as time for discussions with student representatives and engagement with diversified readings for the involved academics; engagement within professional accredited organisations, such as the British Psychological Society, as well as support with programme development and evaluation procedures. On the longer run, participatory and co-productive research with the students and graduates from diverse ethnic, racial and socio-economic backgrounds themselves (Campbell & Vanderhoven, 2016) would be necessary for a variety of topics, which are relevant for these students and their communities, to be investigated across diverse settings so that new teaching materials are developed. Whether such a de-centred psychology curriculum could emerge from the highly contested history of psychology as a discipline remains to be seen. We leave this question open and look forward to the answer, which future developments in widening participation in higher education may stipulate. 10 Acknowledgements We would like to thank Christine Becker-Hardt for her kind contribution in the early stages of this research. A special thanks is also due to the students who participated in our research project. References Berk, L. E. (2013). Child development. Boston: Pearson. Bohnsack, R., Pfaff, N., & Weller, W. (Eds.). (2010). Qualitative analysis and documentary method in international educational research. Opladen: Barbara Budrich. Boysen, G. A. (2011). Diversity topics covered in teaching of psychology courses. Teaching of Psychology, 38(2), 89-93. Brock, A. C. (2006). Introduction. In A. C. Brock (Ed.), Internationalizing the history of psychology (pp. 1–15). New York: New York University Press. Brock, A. (2014). Indigenous psychologies. In Teo, T., Encyclopedia of critical psychology, (4), (pp. 949-955). Boston, MA: Springer. Brooks R., te Riele K. & Maguire, M. (2014). Ethics and education research. London: Sage. Burke, P. J. (2012). The right to higher education: Beyond widening participation. London: Routledge. Burman, E. (2005). Engendering culture in psychology. Theory & Psychology, 15(4), 527-548. Burman, E. (2017). Deconstructing developmental psychology. London and New York: Routledge. Campbell, H. & Vanderhoven, D. (2016). Knowledge that matters: Realising the potential of co- production. Manchester: N8/ESRC. Copeland, D. E., Scott, J. R., & Houska, J. A. (2010). Computer-based demonstrations in cognitive psychology: Benefits and costs. Teaching of Psychology, 37(2), 141-145. Edwards, J.A. & Lampert, M.D. (1993). Talking data: Transcription and coding in discourse research. Hillsdale: Lawrence Erlbaum Associates. Enriquez, V. (1995). From colonial to liberation psychology. Manila, Philippines: De La Salle University Press. Fanon, F. (1952/1967). Black skin, white masks. New York: Groove Press Inc. Gläser, J. & Laudel, G. (2004). Experteninterviews und qualitative Inhaltsanalyse als Instrumente rekonstruierender Untersuchungen. Wiesbaden: Verlag für Sozialwissenschaften. Hedegaard, M. (2011). A cultural-historical approach to children’s development of multiple cultural identities. In M. Kontopodis, C. Wulf, & B. Fichtner (Eds.), Children, development and education: Cultural, historical, anthropological perspectives (pp. 117- 136). Dordrecht, London, New Delhi and New York: Springer. Hook, D. (2007). Foucault, psychology & the analytics of power. New York: Palgrave- Macmillan. Hook D. (2012). A critical psychology of the postcolonial: The mind of Apartheid. Hove, UK: Routledge. Hodges, I., Jobanaputra, S., Pearson, C., Reed, C. & Smith, S. (2007). Mapping exclusion in undergraduate psychology: Towards a common architecture of the minority student experience. Final report for the Higher Education Academy Psychology Network 11 Department Teaching Enhancement Scheme. Available at: https://www.heacademy.ac.uk/node/3947 (date of access: 18-July-2018). Howell, A., & Tuitt, F. (2003). Race and higher education: Rethinking pedagogy in diverse college classrooms. Cambridge: Harvard Educational Review Reprint Series. Hwang, K.-K. (2005). From anti-colonialism to postcolonialism: The emergence of Chinese indigenous psychology in Taiwan. International Journal of Psychology, 40(4), 228-238. Jahoda, G. (2016). On the rise and decline of ‘indigenous psychology’. Culture & Psychology, 22(2), 169-181. Keller, R. (2012). Doing discourse research. London: Sage. Keller, R., Hornidge, A.-K., & Schünemann, W. J. (Eds.). (2018). The sociology of knowledge approach to discourse: Investigating the politics of knowledge and meaning-making. London: Routledge. Kontopodis, M. (2014). Neoliberalism, pedagogy & human development. London & New York: Routledge. Kontopodis, M., Magalhães, M. C., & Coracini, M. J. (Eds.). (2016). Facing poverty and marginalization: 50 years of critical research in Brazil. Bern, Oxford and New York: Peter Lang. Kim, U., Yang, K. S., & Hwang, K. K. (Eds) (2006). Indigenous and cultural psychology: People in context. New York: Springer. Lack, C. W., & Abramson, C. (Eds.). (2014). Psychology gone astray: A selection of racist & sexist literature from early psychological research. Oklahoma: Onus Books. Lumby, J., & Foskett, N. (2015). Internationalization and culture in higher education. Educational Management Administration & Leadership, 44(1), 95-111. Maringe F, Foskett N, Woodfield, S. (2013). Emerging internationalisation models in an uneven global terrain: findings from a global survey. Compare: A Journal of Comparative and International Education, 43(1), 9-36. Mignolo, W. (2012). Local histories/ Global designs: Coloniality, subaltern knowledges, and border thinking. Princeton: Princeton University Press. Mills, C. (2014). Decolonizing global mental health: The psychiatrization of the majority world. London and New York: Routledge. Morss, J. (1996). Growing critical: Alternatives to developmental psychology. London: Routledge. Paredes-Canilao, N., & Babaran-Diaz, M. A. (2013). Sikolohiyang Pilipino: 50 years of critical- emancipatory social science in the Philippines. Annual Review of Critical Psychology, 10, 765-783. Parker, I. (2015). Handbook of critical psychology. London and New York: Routledge. Prilleltensky, I. & Nelson, G. (2002). Doing psychology critically: Making a difference in diverse settings. New York: Palgrave-Macmillan. Richards, G. (2011). Race, racism and psychology: Towards a reflexive history. London: Routledge. Richardson, J.T. (2008). The attainment of ethnic minority students in UK higher education. Studies in Higher Education, 33(1), 33-48. Sheen, M., AlJassmi, M. A., & Jordan, T. R. (2017). Teaching About Psychological Disorders: A Case for Using Discussion Boards in the Classroom. Teaching of Psychology, 44(1), 74-77. Sinha, D. (1997). Indigenizing psychology. In J. W. Berry, Y. H. Pooringa, & J. Pandey (Eds.), Handbook of cross-cultural psychology Vol. 1 (pp. 129-169). Boston, MA: Allyn & Bacon. Smith, P.; Cowie, H. & Blades, M. (2015). Understanding children’s development. Chichester: Wiley. https://www.heacademy.ac.uk/node/3947 12 Spivak, G. C. (2012). An aesthetic education in the era of globalization. Cambridge, MA: Harvard University Press. Stein, S. & Andreotti, V. (2016). Decolonization and higher education. In M. Peters (Ed.), Encyclopaedia of educational philosophy and theory (pp. 1-6). Singapore: Springer. Staeuble, I. (1991). Psychological man and human subjectivity in historical perspective. History of the Human Sciences, 4(3), 417-432. Staeuble, I. (2004). De-centering Western perspectives: Psychology and the disciplinary order in the First and Third World. In A.C. Brock, J. Louw, W. van Hoorn (Eds.), Rediscovering the History of Psychology (pp. 183-205). Boston, MA: Springer. Stevens, M., & Gielen, U. P. (Eds.). (2007). Toward a global psychology: Theory, research, intervention, and pedagogy. Mahwah, New Jersey: Lawrence Erlbaum. Stetsenko, A. (2017). The transformative mind: Expanding Vygotsky’s approach to development and education. Cambridge, MA: Cambridge University Press. Takooshian, H, Gielen, U.P., Denmark, F.L., & O'Roark, A.M. (Eds.). (2018). Visions and resources for international psychology: 75 years of the International Council of Psychologists. New York, NY: Global Scholarly Publications. Teo, T. (2005). The critique of psychology: From Kant to postcolonial theory. New York: Springer. Varghese, N. V. (2013). Globalization and higher education: Changing trends in cross border education. Analytical Reports in International Education, 5(1), 7-20. Walkerdine, V., Lucey, H., & Melody, J. (2001). Growing up girl: psychosocial explorations of gender and class. New York: New York University Press. Wielkiewicz, R. M., & Meuwissen, A. S. (2014). A lifelong learning scale for research and evaluation of teaching and curricular effectiveness. Teaching of Psychology, 41(3), 220- 227. Wilder, C. S. (2013). Ebony and ivy: Race, slavery, and the troubled history of America’s universities. New York: Bloomsbury Publishing. Appendix Transcription symbols (adapted from: Edwards & Lampert, 1993) G1/G2 Focus Group 1/ Focus Group 2 [text] text articulated simultaneously by the interviewer and interviewee (…) pause lasting less than 1 second (~) unclear word ((…)) text omissions or explanations added by the researchers 
work_kldxsrycgbhfzjpkw6wh2c6qfq	----	Environmental Justice through Improved Efficiency Environmental Justice through Improved Efficiency Peter S. Wenz University of Illinois at Springfield Introduction Environmental philosophers in western democracies often attempt to influence public policies. We advocate, for example, habitat protection for endangered species, sustainable agriculture, and increased use of renewable sources of energy. But how do we convince fellow citizens? We must relate our proposals to commonly held values. In this paper I enlist the commonly held values of efficiency, justice, and environmental justice in support of environmentalist proposals for more public and mass transportation, particularly for transportation by rail. My argument goes beyond what Bryan Norton calls the convergence thesis,[1] insofar as anthropocentric values support environmentalist proposals regarding transportation without considering the welfare of future generations of human beings. Efficiency is widely considered praiseworthy in our culture. However, I do not claim it is our most important value, or that it alone supports environmentalism. Efficiency is highlighted here due to its usual association with environmentally ruinous "progress." Making efficiency an environmentalist value removes a major ideological impediment to environmental sanity. PART I: JUSTICE, ENVIRONMENTAL JUSTICE, AND EFFICIENCY Justice and Environmental Justice Justice and Environmental Justice I do not attempt here a full characterization of either justice or environmental justice, which are topics that I have considered elsewhere.[2] For present purposes it suffices to note that justice generally increases when the burdens of meeting basic needs, and the benefits derived from social and economic life, are more equal, except where moral considerations and other values support greater inequality. In other words, equality is presumptively just, but the presumption can be rebutted. Environmental justice is merely justice as applied to policies and programs related to the quality of the environment. Anti-environmental Invocations of Efficiency A common view that pits efficiency against the environment (a view that I oppose in this paper), starts with the claim that human wants are insatiable. This creates scarcity. According to environmental economist Clement A. Tisdell, economic activity aims to reduce scarcity. "The basic [economic] problem is considered to be how to manage or administer resources so as to minimize scarcity, that is, the 'gap' between individuals' demand for commodities and the available supply of them."[3] Efficiency is necessary because the more efficiently people use resources, the more human needs and wants can be satisfied. Free markets are commonly thought to promote efficiency. Ideally, suppliers of goods and services compete for customers' money by offering better products at lower prices. Prices are kept low by using raw materials and labor efficiently. Many people claim, for example, that farmers can gain greater yields at lower cost by growing cash crops on their fields year after year. People who accept this view of agricultural efficiency recommend that farmers apply artificial, nitrogen fertilizers every year to maintain soil fertility, which is otherwise degraded by continuous cash cropping. "Efficient" farmers reduce labor costs by using chemical herbicides, rather than human labor, to control weeds. They save additionally on labor when they use large farm machinery to plant seeds, spread fertilizers and herbicides, and harvest crops from large fields where such machinery is most useful. Such farmers are widely regarded the most efficient in the world. Food is relatively inexpensive so people who farm this way compete successfully in the free market. Because the food is cheap, consumers have money left over to buy other items that they want and need. Free market, agricultural competition seems, then, to ameliorate scarcity. However, most environmentalists oppose this kind of agriculture. They oppose the use of artificial fertilizers because these are made from petrochemicals, a non-renewable resource. Processing the chemicals pollutes water and air. Chemical herbicides also add to water pollution. What is more, only crop rotation maintains soil fertility in the long run. The large fields required by large farm equipment deprive non-agricultural species, such as birds and rodents, the habitat that traditionally exists in hedgerows surrounding smaller fields. It would seem, then, that environmentalists are opposed to modern agricultural efficiency and the reduction of scarcity. Free market, efficient agriculture seems opposed to equality as well. As some farmers prosper through the use of expensive, modern methods, others lose their farms because they lack the capital or the vision to modernize. Advocates of free market-induced efficiency do not consider such inequality unjust if it is necessary to reduce scarcity. I argue that real efficiency is opposed neither to environmental concerns nor to greater equality. I illustrate this thesis through extended consideration of transportation. But I must first clarify the meaning of "efficiency," and do so by continuing a more cursory consideration of agriculture. What "Efficiency" Means Efficiency refers primarily to a relationship of inputs to outputs. Other things being equal, efficiency increases as valued inputs in limited supply decrease, and valued outputs increase. Most often the relevant inputs and outputs are implicit in claims of efficiency, because they are part of people's background understanding. For example, agriculture in the United States is often said to be the most efficient in the world. The understood inputs are labor hours expended directly on agriculture and the outputs are bushels of grain. However, sometimes the understood inputs are not the only ones worth considering. The input in agriculture could be arable land, so that efficiency would be measured in output per hectare. Or the input could be money invested, making efficiency a measure of output per dollar invested. The output could also be altered from bushels of grain to nutrition available for people, or to monetary returns. If both input and output are put in purely monetary terms, the efficiency calculation amounts to a standard calculation of return on investment. If, however, the input is monetary and the output is nutrition available for human beings, then a different agricultural strategy may be deemed most efficient, because feeding poor, starving people may not be the way to gain the greatest monetary return on investment. Because many different efficiency calculations are possible, judgments that environmentalism opposes (or favors) efficiency cannot be made in abstraction from either a given type of endeavor (agriculture in this example), or determination of inputs and outputs appropriate to that endeavor. How do we recognize the most appropriate inputs and outputs? The most appropriate inputs are those that are necessary and in short supply. The most appropriate outputs are those that correspond to the legitimate goal(s) of the enterprise. Again, consider agriculture. Atmospheric nitrogen is valuable and necessary for agriculture, but because it is so plentiful, reasonable calculations of agricultural efficiency do not rate farming practices according to their conservation of such nitrogen. Worldwide, the same can be said of labor hours expended directly on agriculture. Unemployment is a major problem in many parts of the world. An abundance of labor makes calculations of agricultural efficiency according to labor hours expended directly on agriculture about as reasonable as calculations based on the use of atmospheric nitrogen. In agriculture, the most appropriate inputs are arable land, fertile soil, and fresh water. They are necessary, and the currently short supply is diminishing quickly. Worldwatch's Gary Gardner reports that arable land is being lost at an alarming rate to urban expansion,[4] and that much soil fertility is being lost to salination[5] and topsoil erosion.[6] Water shortages affect many parts of the world already, and are expected to become acute in many other parts, including the United States, in the next century.[7] So reasonable calculations of efficiency in agriculture will prominently feature arable land, fertile soil, and fresh water among inputs to be conserved. And what is the most appropriate output? Rather than bushels of grain, it would be people fed adequately or well, as feeding people has always been the main goal of agriculture. When agricultural efficiency is understood as the efficient use of arable land, fertile soil, and fresh water to feed people, conflict between environmentalist concerns and efficiency disappears. It is beyond the scope of the present paper to argue the case in detail here, but the outline of the argument is that the highly mechanized, high-input agriculture that environmentalists oppose makes inefficient use of scarce resources needed to feed people. It tends to degrade soils and waste water. The major output is grain that is fed to animals that are grown for their meat. This is inefficient because the animals use about 90% of the food value of the grain for their own bodies' maintenance, leaving only 10% to feed people. Thus, environmentalist critiques of modern factory farming do not call for reduced efficiency, but for increased efficiency in the effort to ameliorate scarcity. This is the kind of argument that I make below, and in greater detail, concerning transportation. Efficiency and Plural Values This analysis of the concept of efficiency implies that judgments of efficiency cannot be divorced from judgments of value, and that plural values may need to be considered. In the case of agriculture, for example, the values of arable land, fresh water, and fertile soil all had to be considered. Discomfort with the need to make controversial value judgments motivates some thinkers to seek a single measure of value that can be used on all occasions and for all endeavors. The most influential proposal of this kind comes from economists who have tried to reduce all values to a medium of exchange, such as money. On this view, the relevant "valued input" into any activity is monetary investment (money and the monetary worth of all non-monetary inputs), and the "valued output" is profit (gross income minus expenses). Society as a whole is thought to be operating most efficiently when its resources (the monetary value of all its inputs) are used to maximize gross domestic product (GDP) (the monetary worth of its outputs). Some consequences of measuring efficiency by GDP alone suffice to show the inappropriateness of reducing all inputs and outputs to monetary terms. The most abstract consideration was put forward in 1819 by classical economist Lauderdale, who made a distinction between "public wealth" and "private riches." Both public wealth and private riches contain what "man desires as useful or delightful to him," but private riches, unlike public wealth, have exchange value because they exist "in a degree of scarcity."[8] The GDP, of course, measures everything in terms of exchange values. Because exchange values increase with scarcity, there is a paradox: "Private riches could expand while public wealth declined simply because formerly abundant objects with great use value but no exchange value became scarce, and thereby acquired exchange value and were henceforth counted as riches."[9] Lauderdale maintained that "the common sense of mankind would revolt at a proposal for augmenting wealth by creating a scarcity of any good generally useful and necessary to man."[10] To recognize how revolting this is, consider home security. In a society where there is little crime, people can feel, and be, secure in their homes without elaborate home security systems. In such a society home security is part of public wealth. Imagine that social disaffection increases, or the effectiveness of law enforcement decreases, and home security becomes a problem. People now buy elaborate home security systems and purchase the services of private security personnel, because home security is now a scarce item. It has become part of what Lauderdale called "private riches." Because more goods and services are bought and sold, the GDP increases, all other things being equal. So if GDP were the sole measure of efficiency in society, a society where people are insecure in their homes is more efficient than one where they enjoy home security without expense. This is absurd.[11] Other absurdities abound, because increases in GDP often fail to improve people's welfare. Some increases in GDP simply compensate for the loss of welfare. For example, WorldWatch's Sandra Postel reports that cleanup expenditures after the Alaskan oil spill of 1989 added $2 billion to the economy, and air pollution in the United States causes illnesses whose medical treatment costs $40 billion annually.[12] Again, it is absurd to suppose that society is doing better when it has pollution to clean up and related illnesses to cure. Of course, some workers and investors benefit when people spend money on private security systems, environmental clean-up and medical care. But a more secure, pollution-free and healthy society could use its resources to further improve welfare, rather than merely compensate for welfare losses. This is surely better, all things considered, even if the GDP is somewhat lower. If GDP is unacceptable as the sole measure of economic efficiency in society, then, because no other sole measure is plausible, judgments of efficiency will have to be made using a plurality of values. This means that we will have to say, as I have illustrated above in the case of American agriculture, that a given practice may be efficient on one measure, but not so efficient on another. In such cases purely mathematical calculations will not suffice to judge efficiency. Instead, we will have to use common sense (i.e. the common web of value beliefs that we have internalized through socialization) to determine which practices and strategies are, all things considered, more efficient than others. PART II: TRANSPORTATION I now argue that, all things considered, transportation policies favored by environmentalists, such as greater reliance on public and mass transit systems, and greater use of railroads, are not only better environmentally than current emphases on automotive transport, but are also more efficient and just. Current Problems Most of the current transportation problems in the United States stem from excessive reliance on automobiles and trucks to transport people and goods. Traffic congestion "not only causes stress and inconvenience," writes WorldWatch researcher Marcia Lowe, but also costs countries billions of dollars a year in lost employee time and delayed delivery of goods. The United States General Accounting Office (GAO) reports that productivity losses from highway congestion cost the nation some $100 billion annually.[13] The Texas Traffic Institute estimates that, in 1988, traffic congestion in U.S. urban areas cost more than $400 per vehicle. In cities in the Northeast, the figure rose to $750 per vehicle.[14] The Union of Concerned Scientists' Deborah Gordon reports similar findings: The Federal Highway Administration (FHWA) estimates that congestion wastes 1.4 billion gallons of fuel annually, 2 percent of the energy currently used for highway passenger transport, and the U.S. Department of Transportation estimates that congestion costs each driver $375 annually in extra fuel and maintenance expenses.[15] What is more, the problem seems to be getting worse. Gordon writes, "According to an FHWA estimate, in just three years, between 1985 and 1988, traffic delays from road congestion increased by 57 percent."[16] The future looks bleak. "The U.S. General Accounting Office has calculated that if present trends continue, road congestion in the United States will triple in only 15 years even if capacity is increased by 20 percent, a goal that is unlikely to be achieved."[17] The result could be a 10-fold increase in urban rush-hour congestion. What these figures mean is that by 2005 the average commuter from one suburb of a metropolitan area to another suburb could spend up to five times as long in traffic as in 1990. This could mean moving at five miles per hour over a 10-mile trip - a two-hour commute. Not only time but fuel would be wasted; the FHWA projects that by 2005, 7.3 billion gallons of fuel will be wasted each year - 7 percent of projected oil use for highway passenger transport.[18] Automobile Accidents are another problem. Traffic injuries and fatalities cost society roughly thirty cents per gallon of gas used in automotive transportation.[19] These financial losses and, more importantly, related human tragedies, could be reduced dramatically by a switch to rail. "In the United States, the risk of death in an auto accident is roughly 18 times that for rail...."[20] Air pollution caused by automotive transport takes a larger toll on people's health, and costs even more money. According to Deborah Gordon, "The annual cost to human health and the environment from vehicle pollution has been estimated at between $4 and $93 billion. In addition to morbidity, as many as 120,000 deaths each year can be linked to air pollution."[21] These problems could be ameliorated significantly through greater reliance on mass transit. "Cars and light trucks have the highest emission levels per passenger mile for all principal pollutants. In fact, a single-occupancy car emits twice as much NOx, three times as much CO2, 10 times as much hydrocarbon, and 17 times as much CO as mass transit."[22] Vehicle air pollution damages more than people's health. It "is also responsible for extensive environmental deterioration, including damage to agriculture and wildlife, corrosion and soiling of buildings, [and] degradation of visibility....[23] Military security in the United States is aggravated by reliance on automotive transport, because such transport uses more oil than the U.S. can produce domestically. By 2000, the average barrel of crude will be 40 percent domestic and 60 percent imported.... More troubling in terms of national security, the U.S. is importing an increasing amount of oil from politically unstable sources, including the Persian Gulf countries and Nigeria.... These countries accounted for one-third of all U.S. imports in 1989 - up 11 percent from a year earlier.[24] The military buildup in 1991 to protect oil from the Persian Gulf "cost the equivalent of an average 40 cents per gallon of imported gasoline.... Furthermore, the cost will be a continuing one, since even if future wars are avoided, the U.S. is expected to maintain a constant military presence in the Middle East."[25] The U.S. trade deficit with the rest of the world is worsened by reliance on foreign oil. "According to Department of Commerce calculations, imported oil accounted for 50 percent of the nation's $108-billion trade deficit in 1990."[26] There are other problems associated with over reliance on cars and trucks to transport people and goods, but the above suffice to make the point. I add here only that these problems sometimes interact to create negative synergy. For example, congestion exacerbates problems of air pollution. "Carbon dioxide emissions double when average speed drops from 30 to 10 mph, and hydrocarbon and carbon monoxide emissions triple at speeds of less than 35 mph compared with a constant speed of 55 mph." This takes a double toll on human health. First, more pollutants that impair health are emitted per mile driven. Second, more people spend more time in the vicinity of the greatest concentration of pollution when they are stuck in traffic jams. "Exposure to ozone can cause chest tightness, coughing, headaches, and nausea as well as pulmonary disease, heart disease, and cancer."[27] Traffic congestion and related increases in exposure to air pollution can also precipitate traffic accidents. High carbon monoxide concentrations on crowded roads, for example, can restrict oxygen flow to the brain of a driver sitting in traffic, impairing driving performance.... Aggressive behavior and physiological reactions have also been linked to exposure to congested traffic conditions.[28] Besides taking a toll on human health, increased accident rates trigger higher insurance premiums. More Efficient Alternatives Transport by rail is the key to a more efficient transportation system. Consider, for example, the problems of energy dependence and air pollution. According to Marcia Lowe, For every kilometer of travel, an intercity passenger train consumes only one- third as much energy per rider as a commercial airplane, and one-sixth as much as a car carrying only the driver. Commuters who take light rail or the subway to work instead of driving solo slash their contribution to urban smog, cutting nitrogen oxide emissions from each trip by 60 percent and nearly eliminating carbon monoxide and particulate emissions.[29] An increased use of rail would also relieve traffic congestion, and, as noted above, reduce significantly injuries and deaths due to transportation accidents. Rail makes more efficient use of space. "Two railroad tracks can carry as many people in an hour as 16 lanes of highway."[30] Efficient use of space is particularly important in crowded urban areas where land values are high. In addition, "rather than the strip malls and sprawling developments that spring up along highways..., urban rail typically encourages compact, higher-value land use."[31] More compact development lessens transportation difficulties because people typically are closer to where they need to go, so they can walk or ride a bicycle. This benefits their health and further relieves traffic congestion, air pollution, and energy dependence. Compact development that results from using rail can improve prospects for economic growth. Montgomery County, Maryland - a county of 740,000 people near Washington, D.C. - is a case in point. A long-range planning study for the county found that if urban growth continued in the usual auto- and highway- oriented pattern - even at a slower pace - the resulting traffic congestion would stifle further economic development. In contrast, focusing most new urban growth in pedestrian- and bicycle-friendly clusters along an expanded rail and bus system - and revising commuter subsidies to discourage the use of cars - would enable the county to double its current number of jobs and households without exacerbating traffic congestion.[32] Intercity rail tends to help keep city centers vital, because most train stations in large cities are downtown. This encourages compact development that lessens distances to be traveled and fosters walking and the use public transportation. Public sector investment in public transport is more efficient than investment in improved infrastructure for automobiles. A recent U.S. study looked at the impact of government transport expenditures on worker productivity. A 10-year, $100 billion increase in public transport spending was estimated to boost worker output by $521 billion - compared with $237 billion for the same level of spending on highways. Moreover, public transport investments began returning net benefits nearly three times as quickly as highway expenditures.[33] A 1991 study of transportation investment alternatives in Philadelphia reached similar conclusions. The study compared the economic effects of investing in rehabilitation and continued operation of SEPTA (the light rail, subway, and commuter rail system in the Philadelphia metropolitan area) with cutting or eliminating its services. The study found that for every dollar of public spending on rebuilding and operating SEPTA, $3 would accrue to the state and the region as a direct result of improved transport. The total economic impact... would be nine dollars for every dollar invested.[34] The European Conference of Ministers of transport found similarly that the total social benefits of investment for intercity travel in fast trains (the TGV), was two-thirds greater than investment in highways.[35] Transporting freight by rail is also more efficient than highway (truck) transport. "Although they carry only 20 percent of the nation's payload, trucks burn 59 percent of the energy devoted to moving freight."[36] Rail, by contrast, "although it moves one-third of U.S. freight, accounts for a scant 5 percent of energy consumption."[37] In addition, "because trains can use cleaner and more diversified fuel sources than trucks, such as electricity, shifting freight from trucks to trains would reduce both emissions and U.S. demand for imported oil. Moreover, greater use of trains would reduce highway congestion and traffic accidents."[38] Inefficiency through Subsidies Most people in the United States imagine that automobile transport is cheaper for them than public transportation, and that lower prices reflect efficiency. Public transportation, they have been told, requires considerable government subsidies. These people do not realize that cars are highly subsidized. With much less subsidy, public transportation could be convenient and widely available. Many car subsidies are hidden and long-standing. Consider, for example, subsidies for parking. Deborah Gordon points out: Recent studies have found that 75 percent of all commuters park in free, employer-provided spaces; an additional 18 percent park for free in on-street spaces.... Studies conclude that "free" parking costs employers $166-$1,657 per space per year (in 1985 dollars). Parking is expensive: an above-grade space can cost up to $18,000 to build, and underground parking is at least twice that much. Moreover, a 500-car parking lot requires an estimated 170,000 gallons of gasoline to construct and 1,200 gallons of gasoline for annual maintenance. Parking has hidden costs as well. Land devoted to parking means lost revenues from the tax-generating activities it precludes - residential, commercial, and industrial.[39] In large measure, "free" parking is subsidized by the customers of the employers who provide such parking. This is, in effect, a hidden subsidy of automotive transport by the consuming public. When the employer is a unit of government, the consumer subsidizes automobile use through tax contributions. Even when the employer is a private enterprise, taxation is used to subsidize parking. As Gordon points out, the provision of "free" parking reduces tax revenues by taking space that could be devoted to tax-generating activities. Other things being equal, the taxes generated by these activities would enable others in society to pay lower taxes. In addition, A 1985 federal law allows employers to subsidize mass transit at the rate of $15 per month; anything over this amount must be added to employees' reported earning for tax purposes. Parking benefits to employees, on the other hand, are not taxed at all. Furthermore, employers can deduct their parking maintenance and operating costs for tax purposes.[40] Thus, taxpayers indirectly subsidize personal-auto commuting. General tax revenues must compensate for taxes lost through parking lot tax deductions. Public transportation enjoys no such tax advantage. In sum, "the real value of 'free' parking... may total more than $85 billion per year."[41] Military expenditures constitute an enormous hidden subsidy of oil-thirsty automotive transport. According to Amory and Hunter Lovins: Earl Ravenal, of the Georgetown University School of Foreign service, found that in fiscal year 1985 alone... the United States spent $47 billion projecting power into the Persian Gulf: $468 per barrel imported from the Gulf in that year, or eighteen times the $27 or so that we paid for the oil itself....[42] When people think of automotive transport, they seldom consider such military expenses as part of the bill that they are paying for the privilege of using a car. Yet if public transportation were developed properly, the United States could eventually eliminate its dependence on foreign sources of oil, and reduce its military budget. The health bill for illnesses associated with air pollution generated by cars and trucks constitutes another hidden subsidy. Costs include not only direct payments from individuals, businesses, and government units for medical attention, but also revenue lost due to workdays missed as a result of illness, permanent disability, or premature death. Paying for medical attention and lost productivity due to the higher accident rate of automotive as opposed to rail transport is yet another hidden subsidy. Highway law enforcement is also a subsidy. Many fewer police are needed to enforce traffic laws against possible violation by the relatively few drivers of public transport. For the most part, highway law enforcement is a hidden subsidy of transportation by car and truck. Road construction in the United States has been highly subsidized from general tax revenues. No comparable subsidy exists for rail or mass transit. "WPA projects in the 1930s, for example, included a strong road-building component; 10 times as much WPA money was spent on street and highway projects as on mass transit."[43] At the same time the federal government began subsidizing a form of housing development, suburban sprawl, that favors the use of cars instead of public transportation. The Federal Housing Administration (FHA), which gave federal guarantees for home mortgages, promoted new construction. According to author James Kunstler, These new houses tended to be located outside the dense cities, because during the Depression vacant land on the periphery was very cheap. The kinds of houses that the FHA frowned upon were those in the cities: old houses with leaky plumbing, jammed into narrow lots on crowded streets, inhabited in some cases by immigrants or, increasingly, African- Americans.[44] Subsidy for this kind of housing persists in the form of the mortgage interest income tax deduction available to homeowners. All things considered, public subsidies for automotive transportation are enormous. Considering just "major costs - including those from [parking,] smog, accidents, and traffic jams -the total U.S. subsidy paid to drivers is estimated to range from $300-$600 billion per year. This is enormously inefficient. But because the subsidies are largely hidden or taken for granted, the cost-inefficiency of cars and trucks is largely unknown. On grounds of transportation efficiency alone, then, it makes sense to do exactly as most environmentalists advise. Identify and phase out subsidies to cars and trucks and increase subsidies for mass transit, especially rail. Subsidize compact development that renders mass transit most useful, and subsidize fast intercity rail. Provide bicycle lanes and paths, as well as pedestrian zones, in cities. The Environment and Environmental Justice Greater transportation efficiency is good for the environment and promotes social justice.[45] As for the environment, transportation efficiency lessens automotive air pollution that harms not only people but wildlife and crops. The energy efficiency of travel by rail, bicycle, and foot reduces the use of fossil fuels that contributes to the greenhouse effect. Because less land is needed for rail and other forms of public transportation, not to mention bicycle and foot, more land is available for preservation of wetlands and other types of wilderness areas. Compact living and working arrangements that accompany efficient modes of transportation augment this effect. Social justice is facilitated by more efficient, public transportation because, as Marcia Lowe points out, "Even in the highly mobile United States, which nearly has a car for every two people, more than ten million households have no motor vehicle."[46] James Kunstler adds that many households and families that have cars are strained by the associated expense. The $4500 it costs to own and operate a car each year could cover a year's payments on a $30,000 mortgage. Often, it is absolutely necessary to keep two cars operating in a family so that two adults can drive long distances to work low-wage jobs. The cost of driving everywhere, to work, or to obtain the necessary goods and services of life, impoverishes families. It makes it impossible for them to own their own home.[47] In sum, it should come as no surprise that relatively inexpensive public transportation is more helpful to poorer than to richer people, and, therefore, that it promotes social equality. Social arrangements that facilitate walking and bicycling also benefit the poor disproportionately, resulting in greater equality. Increased equality is increased social justice in this context because, as noted earlier, equality is presumptively just, and there are no countervailing reasons or values here to rebut that presumption. We no longer think that economic inequality is justified by God's special love for some groups or individuals over others. Instead, we justify inequality primarily as a by-product of free market competition that serves to ameliorate scarcity through efficient use of resources. As I have just argued, however, in the present context efficiency and the amelioration of scarcity are served by mass and public transportation, which also disproportionately aid the poor. This aid therefore advances not only equality, but social justice. Reductions in air pollution that would follow reduced reliance on automotive transport are also disproportionately helpful to the relatively poor. Many poor people inhabit inner cities where excessive traffic congestion, as we have seen, increase and concentrate air pollution from cars and trucks. The resulting illnesses are especially disadvantageous to the poor in the United States because there is no universal health insurance. Any reduction in the use of petrochemicals also disproportionately benefits poor people and people of color, because polluting industries tend to expose such people more than others to toxic substances.[48] Again, in the present context, advantages to the poor constitute increases in justice as well as equality. Because environmental quality is here at issue (air quality and exposure to industrial pollution), these increases in justice constitute improvements in environmental justice. In sum, pursuing the goals of efficiency, environmental protection, and social justice converge in the case of transportation. Limitations of space preclude discussion here of particular proposals for achieving these goals in transportation. PART III - CONCLUSION: EFFICIENCY AND JUSTICE The foregoing means that the generally recognized value of efficiency can be enlisted in the cause of environmentalism and of environmental justice, at least so far as transportation is concerned. I have elsewhere constructed a similar argument regarding agriculture.[49] Such arguments can be made without emphasis on the effects of our actions on future generations, because many of the efficiency, environmental, and justice benefits of environmentally- friendly transportation systems accrue within a single generation. Additional study is required to see how many, and which, other areas of human endeavor, when subject to similar analysis, yield similar conclusions. There is reason to suppose that the confluence noted here is common, if not universal. To the extent that efficiency improvements enable people to get what they want and need from fewer environmental resources, such improvements tend to promote reductions in the burden that people place on the environment. So efficiency improvements tend to be environmentally friendly. For the most part, efficiency improvements probably also promote social and environmental justice. Poor people and people of color generally have less access to environmental resources. Efficiency improvements generally enable people to get more from fewer environmental resources. When human life is so organized that fewer resources are needed, those with access to the fewest resources are generally helped the most. Social justice improves as benefits accrue disproportionately to poor people. Environmental justice improves with reductions in people's disproportionate exposure to deleterious substances, such as toxic pollution. All other things being equal, improvements in efficiency that allow human needs to be met with fewer natural resources may reduce unwanted by-products of human activities, such as toxic pollution. Where poor people are disproportionately exposed to environmental disutilities (as, for the most part, they are), a general decrease in pollution will likely reduce their deleterious exposure to it. These general, theoretical considerations are only suggestive. They are no substitute for case-by-case exploration of confluence among improvements in efficiency, environment, and justice. ENDNOTES [1] See Bryan G. Norton, Toward Unity Among Environmentalists (Oxford: Oxford University Press, 1991). [2] See Peter S. Wenz, Environmental Justice (Albany: State University of New York Press, 1988). [3] Clement A. Tisdell, Natural Resources, Growth, and Development: Economics, Ecology, and Resource-Scarcity (New York: Praeger Publishers, 1990), pp. 1-2. [4] Gary Gardner, "Shrinking Fields: Cropland Loss in a World of Eight Billion," Worldwatch Paper #131 (July 1996), p. 6. [5] Gardner, pp. 30-31. [6] Gardner, pp. 26-27. [7] See Charles V. Blatz, "General Introduction," Ethics and Agriculture (Moscow, Idaho: University of Idaho Press, 1991), pp. 11-12; and Sandra Postel, "Dividing the Waters: Food Security, Ecosystem health, and the New Politics of Scarcity," WorldWatch Paper #132 (September 1996), especially pp. 17-19. [8] This quote from Lauderdale is from Herman E. Daly and John B. Cobb, Jr., For the Common Good, Second Edition (Boston: Beacon Press, 1994), p. 147. [9] Daly and Cobb, p. 147. [10] Daly and Cobb, 147-148. [11] This example is taken from Peter S. Wenz, Nature's Keeper (Philadelphia: Temple University Press, 1996), p. 155. [12] Sandra Postel, "Toward a New 'Eco'-Nomics," WorldWatch (September/October 1990), p. 22. [13] Marcia Lowe, "Back on Track: The Global Rail Revival," WorldWatch Paper #118 (April 1994), p. 6. [14] Lowe, p. 13. [15] Deborah Gordon, Steering a New Course: Transportation, Energy, and the Environment (Washington, DC: Island Press, 1991), p. 25. [16] Gordon, p. 25. [17] Gordon, p. 3. Emphasis in the original. [18] Gordon, pp. 42-43. [19] Gordon, p. 46, endnote #11. [20] Lowe, p. 16. [21] Gordon, p. 63. [22] Gordon, p. 64. [23] Gordon, p. 63. [24] Gordon, pp. 40-41. [25] Gordon, pp. 41-42. [26] Gordon, p. 42. [27] Gordon, p. 25. [28] Gordon, p. 25. [29] Lowe, p. 6. [30] Lowe, p. 7. [31] Lowe, p. 7. [32] Lowe, p. 15-16. [33] Lowe, p. 41. [34] Lowe, p. 42. [35] Lowe, p. 41. [36] Gordon, p. 29. [37] Gordon, p. 32. [38] Gordon, p. 142. [39] Gordon, p. 147. [40] Gordon, pp. 148-149. [41] Lowe, p. 35. [42] Found in Daly and Cobb, p. 344. [43] Gordon, p. 11. [44] James Howard Kunstler, The Geography of Nowhere (New York: Touchstone, 1994), p. 102. [45] By "improvements in social justice" I mean in this context greater equality of income, wealth, non-monetary access to needed environmental inputs, and freedom from environmental disutilities such as polluted water and air. I use "environmental justice" as a sub-category of social justice that refers particularly to equality of non-monetary access to needed environmental inputs and freedom from environmental disutilities. [46] Lowe, p. 7. [47] Kunstler, p. 183. [48] See especially M. Lavelle and M. Coyle, "Unequal Protection," National Law Journal, 21 September 1992, pp. 1-2. [49] See "Pragmatism in Practice: The Efficiency of Sustainable Agriculture," forthcoming. Justice and Environmental Justice Justice and Environmental Justice 
work_klumnarkrzeipinb427bpsmcwq	----	EM-REPS180020 153..175 What empowers Egyptian women: resources versus social constrains? Hanan Nazier and Racha Ramadan Faculty of Economics and Political Science, Cairo University, Giza, Egypt Abstract Purpose – This paper aims to tackle an important question related to women’s economic empowerment in highly patriarchal societies like Egypt. The paper discusses individual, household, wealth and location factors determining women empowerment, as measured by two dimensions: decision-making power and mobility. Design/methodology/approach – Using the “Egypt Labor Market Panel Survey” (ELMPS) 2012, a Multiple Indicators Multiple Causes (MIMIC) model was estimated to study the main economic resources and social constraints that determine women empowerment as measured by the power of women over household decisions and her freedom of movement in Egypt. Findings – Three key messages could be delivered. First, women’s own economic resources as captured by her employment status are an important source of her empowerment. Second, contrary to theoretical prediction education is not playing its expected role in developing awareness and transforming ideas concerning gender roles in Egypt. Third, the importance of social local context is fundamental for Egyptian women empowerment. Originality/value – This study is an attempt to address some of the gaps in the literature for the Egyptian case, where there is a lack in rigorous studies measuring women empowerment and examining its determinates. This is done by first, tackling multiple dimension of women’s empowerment, decision-making inside households and freedom of mobility. Second, using MIMIC model, which is a modeling approach that allows for studying the relations between several causes of a given latent variable, such as “Empowerment” in our case, and a number of its possible indicators, without a directly observable measure of the latent variable. Third, using the most recent set of data; the ELMPS 2012 which has a special focus on women’s resources and agency that permits greater content validity of the multidimensional setup. Forth, the macro level differences in women’s status are tackled through using location dummy variables. Finally, given the important correlation between wealth level and women empowerment, the paper is considered a first attempt to analyze such impact by including a variable that captures the wealth level of the woman’s household as one determinant of empowerment. Keywords MIMIC, Women’s empowerment, Agency empowerment, Decision-making index, Mobility index Paper type Research paper © Hanan Nazier and Racha Ramadan. Published in Review of Economics and Political Science. Published by Emerald Publishing Limited. This article is published under the Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of this article (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http:// creativecommons.org/licences/by/4.0/legalcode JEL classification – J16, J12, J60 The authors are thankful to Professor Ragui Assaad for all his valuable comments, suggestions and support. Funding: This work was supported by Economic Research Forum (ERF) [grant numbers: 2013-023]. Resources versus social constrains 153 Received 26 September 2018 Accepted 26 September 2018 Review of Economics and Political Science Vol. 3 No. 3/4, 2018 pp. 153-175 EmeraldPublishingLimited 2631-3561 DOI 10.1108/REPS-10-2018-015 The current issue and full text archive of this journal is available on Emerald Insight at: www.emeraldinsight.com/2631-3561.htm http://dx.doi.org/10.1108/REPS-10-2018-015 Introduction Women’s empowerment refers to their possession of enabling resources, which may, in turn, enhance their agency (Naila. Kabeer, 1999) or ability to “define their own life-choices”, even with opposition from others. Feminist scholars view women’s empowerment as an important goal in itself; whereas, instrumentalists see it as a useful means to achieve other development goals related to health and well-being of empowered women, their children and their household among other societal benefits[1] as well as overall nation economic growth[2]. Accordingly, women’s empowerment has been stressed as a key objective for development policies and programs, as evidenced by the third Millennium Development Goal (MDG) of promoting gender equality and empowering women and then the fifth Sustainable Development Goal with a similar content (Kabeer 2005a). This importance is gaining more emphasis given the positive logic association between poverty and disempowerment, as the inability of providing basic needs often rules out the inability of exercising meaningful choices (Malhotra and Schuler, 2005 and Abdel Mowla, 2009). Hence, formulating women’s empowerment, specifying its dimensions and its determinants as well as standardizing rigorous approaches to its measurement are priorities for global research and policy. The concern with women’s empowerment has also been building in Egypt during the past 30 years, especially after the uprising of the January 25, 2011. These events have heightened societal concerns about women’s role in the public sphere and in economic life, as well as her critical role inside her own household. Women face serious challenges in terms of participation in economic life in Egypt. Women make up only a quarter of the labor force, with almost a quarter of those who are economically active, being unemployed rather than employed, an unemployment rate that is approximately four times higher than that of men. Unemployment is heavily concentrated among young women, approximately 11 per cent of all young women are unemployed, a share higher than among young men, despite lower force participation. Most young women are not in the labor force as 75 per cent of young women are inactive (Assaad and Krafft, 2015). Moreover, poverty in Egypt reached 27.8 per cent in 2014/2015, according to the Central Agency for Public Mobilization and Statistics (CAPMAS). The poor in Egypt are concentrated in rural areas among female-headed households. The MDGs report sheds light on the stronger negative association between school attendance and poverty for girls relative to boys. Only 80 per cent of female children (6-12) in the poorest households have ever attended school compared with 88 per cent of male children in the same age group (UNDP and Ministry of Economic development, 2010). Illiteracy is also strongly associated with gender in Egypt. According to the 2006 population census, among the 2.5 million illiterates between the ages of 15 to 24 in Egypt, 60 per cent were female (Population Census, 2006). There is a general agreement that women’s empowerment is a dynamic, context-specific and multi-dimensional process featuring economic, socio-cultural, familial/interpersonal, legal, political and psychological dimensions. This yields to some challenges when measuring women’s empowerment. From these challenges some are distinguished by the literature to be of most importance; these include the use of proxy indicators instead of direct measures, the lack of the availability and use of data across time, the subjectivity in assessing process and the shifts in relevance of indicators over time (Roushdy, 2004 and Malhotra and Schuler, 2005). Our review of the international literature revealed that with some exceptions (Kishor, 2000a; Yount, 2005), the majority of studies used direct measures of empowerment with a REPS 3,3/4 154 geographical bias toward South Asian countries[3]. For the MENA region, there is a lack of rigorous studies of this kind. Common gaps in the literature at both the international level as well as at the MENA region level include the following. Most research on women’s empowerment used secondary data from multi-purpose surveys, which contain a limited number of empowerment-related items (Kishor and Subaiya, 2008). Most of the studies used summative indices that assign equal weights to different observed indicators of empowerment. Moreover, a common shortcoming of most of the previous studies is ignoring the macro level determinates of women’s status and hence the context specific aspect of empowerment (Durrant and Sathar, 2000; Roushdy, 2004). Finally, none of the studies examined the effect of income/wealth level on women’s empowerment. Therefore, this study is an attempt to address some of those gaps in the literature for the Egyptian case, where there is a lack in rigorous studies measuring women’s empowerment and examining its determinates. This is done by first, tackling multiple dimension of women’s empowerment; decision-making inside households and freedom of mobility. Second, using Multiple Indicators Multiple Causes (MIMIC) model, which is a modeling approach that allows for studying the relations between several causes of a given latent variable, such as “Empowerment” in our case, and a number of its possible indicators, without a directly observable measure of the latent variable. Third, using the most recent set of data; the Egypt Labor Market Panel Survey (ELMPS) 2012 which has a special focus on women’s resources and agency that permits greater content validity of our multidimensional setup. Forth, the macro level differences in women’s status are tackled through using location dummy variables. Finally, given the important correlation between wealth level and women’s empowerment, the paper is considered a first attempt to analyze such impact by including a variable that captures the wealth level of the woman’s household as one determinant of empowerment. Accordingly, this paper is concerned with determinants of women’s empowerment in Egypt. Using the ELMPS 2012, the paper discusses individual, household, wealth and location factors determining women’s empowerment, as measured by two dimensions; decision-making power and mobility. The paper is organized as follows; Section 1 is a background that reviews women’s empowerment measures and the related literature. Section 2 describes the methodology. Section 3 presents the data used in the regression. The estimated results are presented in Section 4 and finally Section 5 concludes. Background 2.1 Defining and measuring women’s empowerment and agency There is a growing body of literature in which efforts have been made to define the concept of empowerment. The present study will adopt the definition introduced by Kabeer (1998, 1999, 2001a, 2001b, 2005a, 2005b), where woman empowerment is defined as the process through which women acquire enabling resources that enhance their agency, which in turn enhance their personal well-being as well as that of their family. Enabling resources include human resources (e.g. school attainment), economic resources (e.g. income or other assets) and social ones (e.g. membership in extra-familial networks) (Kabeer, 1999; 2001b; 2011). Women’s agency means her ability to define and to make strategic life choices. In concept, women agency comprises women’s observable actions and their ideational agency. Women’s observable actions include their influence in family economic decisions and their freedom of movement in public spaces, while their ideational agency refers to their perceptions and views towards equitable gender attitudes (Kabeer, 1999). Accordingly, women’s empowerment is viewed widely as a multidimensional phenomenon that covers various dimensions such as economic, socio-cultural, familial/interpersonal, legal, political Resources versus social constrains 155 and psychological (Kabeer, 1999; Malhotra and Schuler, 2005; Yount, 2005 and Elisabeth Mogford, 2011). In Egypt, the dominant model that governs familial and kin relations is the ideal type model of classic patriarchy (Kandiyoti, 1988). Accordingly, salient aspects of women’s agency in Egypt are identified to be women’s participation in family decisions (especially those reserved for men), freedom of movement in public spaces and vocalization of views favoring more equitable gender roles and rights (Nawar et al., 1995; Govindasamy and Malhotra, 1996; Kishor, 1995, 2000a; Yount, 2005 and Yount et al., 2015). In this study, we focus on women’s observable actions aspect of agency. Accordingly, women’s empowerment is measured by two dimensions; their influence in family’s decisions and their freedom of movement in public spaces. Influence in family decisions indicates the extent of women’s say (none, joint or alone) in household decisions related to monetary transaction, food purchase and her healthcare. By women’s freedom of movement, we mean their ability to go to places, such as the market or the health center (cannot go alone, need permission or does not need permission). Following recent literature, those decisions should not be valued equally. Some of them reflect social norms and pre-existing gender division of roles and responsibilities like the purchase of daily items, what to cook daily and whether permission required to go to market, which are typical female responsibilities. Those decisions reflect a greater responsibility for the family rather than a greater freedom of choices. While other decisions may reflect self-consideration rather than just responsibility such as permission required to visit family and friends, who decides on obtaining health care for respondent and for buying clothes for herself. Meanwhile some of those decisions are minor daily life decisions (e.g. what to cook daily) while others are strategic life choices (like getting medical treatment and large household purchases) (Kabeer, 2001a and Garikipati et al., 2017) that could be considered to reflect a greater freedom of choices. Therefore, it would be inappropriate to merge all decisions in one single measure and they should be analyzed separately. Meanwhile, all these decisions are interdependent, as they are all concerned with the woman’s life within her household. Hence, the paper distinguishes the different decisions and studies them simultaneously through using a MIMIC model as will be explained in details in the methodology section. 2.2 Women’s empowerment measurement As empowerment is a multidimensional concept, it is problematic to operationalize it; this is reflected in some weakness in its measurement in the literature. Some studies used indirect measures using a single observable characteristic, such as women’s education, labor force participation rates and earnings, as a proxy of empowerment. While others used direct measures, which is a combination of observable indicators that are grouped into different dimensions of empowerment including economic decision-making; child-related decision- making; marriage related decision-making; freedom of movement; power relations with husband; access to resources; self-esteem; and control over resources. The indirect measures were extremely criticized (Jejeebhoy, 1991; Balk, 1994; Vlassoff, 1994). First, proxies for empowerment are context dependent, these render comparative research inaccurate. Second, proxy measures do not afford adequate evidence for how well they capture empowerment dimensions. Third, proxies alter the channels through which empowerment works. Finally, as empowerment compromises multiple dimensions, proxies obscure which dimension is being measured (Whyte, 1978 and Agarwala and Lynch, 2006). Direct measures managed to tackle many of the inadequacies of the indirect-measure approach. They have explicitly quantified the mutli-dimensionality of empowerment, thus clarifying the determinants and consequences of each dimension. In addition, direct- REPS 3,3/4 156 measures enlightened the channels through which economic and social factors, such as education and labor force participation, affect empowerment, rather than confusing its causes and effects (Goetz and Gupta, 1996; Mason, 1997; Kritz and Makinwa-Adebusoye, 1999; and Agarwala and Lynch, 2006). 2.3 Theoretical foundations of determinants of women’s economic empowerment Our theoretical foundation for the determinants of women’s empowerment follows Yount (2005). Economics and population studies imply that the distribution of power in marriage depends on the balance of economic and social resources between husbands and wives (Jr, Robert O Blood and Donald M Wolf, 1960). However, empirical studies show that the effect of husband’s economic resources on marital power depends on the institutional and normative context (Hyman Rodman, 1972). In Middle East patriarchal societies, husbands or marital kin control major decisions; hence, ascribed characteristics are more important than economic resources as sources of power for husbands and marital kin. Accordingly, husband’s and household economic resources are irrelevant to patterns of decision-making in marriage (Rodman, 1972). Meanwhile, those studies confirm the positive effect of a woman’s economic resources on her marital power through different normative and institutional contexts (Fox, 1973; Burr et al., 1977; Rogler et al., 1982; Oropesa, 1997; Xu and Shu-Chuan, 2002). Hence, access to and control over social and economic resources within and beyond the marital home may influence women’s empowerment. Moreover, in patriarchal settings prescribed powers of husbands and marital relatives provide them authority over family decisions and are more important than their economic resources as sources of power. Accordingly, at one hand, social and economic resources that women have are expected to affect their influence in family decisions and hence their empowerment. However, on the other hand, social constrains, mainly the structure of a woman’s marital household and local social context where she lives, can constrain her decisions (Yount, 2005). Following Yount (2005), the main determinants of women’s empowerment resulting from this conceptual framework can be summarized into four groups. First, social resources that include woman’s age and parents’ characteristics. Second, economic resources include human capital (e.g. educational attainment, employment) and wealth. Third, social constraints – refers to the social restrictions on woman’s ability to use resources available to her and include age and education gaps between husband and wife. The fourth group includes regional dummy variables to account for local social context. In light of the previous discussion, we propose three main hypotheses: H1. Living with a parent-in-law or an adult son and higher age difference with husband will decrease a woman’s impact on decisions as well as her mobility. While having greater number of children will increase her decision-making power and decrease her mobility. H2. Economic resources of husbands (measured by his education and employment status) and of the household (reflected by household standard of living) will be irrelevant to a woman’s decision-making power and mobility. H3. Increases in a woman’s access to and control over social and economic resources (parents characteristics, her own and her parent’s contribution to marriage costs, woman’s employment and education status) will increase her decisions making power and mobility. While woman’s age increases her decisions making power but decreases her mobility. Resources versus social constrains 157 2.4 Empirical evidence of women’s economic empowerment in Egypt Few studies examined quantitatively women’s empowerment determinants in Egypt. Several methodological approaches were used, such as descriptive approach and probability models. Probability models (logit, probit, ordered logit) allows testing the realization of empowerment using a specific indicator, for instance whether the woman is employed (i.e. empowered). To tackle the multidimensionality of women’s empowerment; factor analysis is used to reflect the several dimensions of empowerment in one indicator. MIMIC model is used as well to allow tackling the multidimensionality of women’s empowerment. Of the studies focusing on indirect measures of empowerment, Khattab and Sakr (2009) used the descriptive approach and the ELMPS (2006) to investigate determinates of women’s empowerment in Egypt. This study focused on the economic dimension of women’s empowerment as measured indirectly by female participation in the labor market. Abdel Mowla (2009) also used indirect measures of empowerment obtained from the ELMPS (2006). The author applied logistic regression to examine the effect of the level and type of education on women economic empowerment proxied by two indirect measures: (1) economic participation; measured as female labor force participation, probability of escaping employment and strengthening job search behavior; and (2) economic opportunity; measured by wage work and escaping vulnerable employment, escaping low quality job and overcoming occupational segregation. Other studies used indirect measures. Kishor (1995) estimated ordered logit model using the 1988 Egypt Demographic and Health Survey (EDHS) to examine the effect of several modernization, economic and cultural factors on three different direct measures of empowerment. First, the customary autonomy index used to measure the extent to which women believe they should have the say in decision related to matters women traditionally would have control over; mainly family planning and children education and marriage. Second, the non-customary autonomy index that measures the extent to which women believe they should have decision-making powers in general and in areas outside their traditional roles, such as visits to relatives and household’s budget. Finally, the realized autonomy index measuring the extent to which women perceive that they have decision- making powers and freedom of movement. The determinants of empowerment used by this study are household characteristics (region and socio-economic index), individual characteristics (age, education exposure to media, migration history and employment status), husband characteristics (education and profession) and cultural variables (religion, marriage pattern, post marital residential arrangement and number of children by gender). The results showed that while most factors have a similar impact on the indices of customary autonomy and non-customary autonomy, they do not always have the same impact on the realized autonomy index. Modernization efforts that affect women’s individual characteristics, like women own education, affect women mostly by altering their views about women’s role in decision-making. While modernization efforts that affect the circumstances in which women live, such as the level of education of her husband, affect her realized level of autonomy. The impact of employment on empowerment is different for each dimension. Realized autonomy is the only aspect that is significantly affected by women work, irrespective of whether they control their earnings and whether they earn cash for the work they do. The other two dimensions as measures of perceptions about women’s roles is not affected by employment per se, but by access to, and control over, earnings derived from employment. Finally, only few cultural variables affect any of the aspects of empowerment REPS 3,3/4 158 directly, realized autonomy is lower among women who are Muslim, who live in large households, who are remarried and who have greater number of children irrespective of their gender. The factor analysis approach is used by Yount (2005) to create scales capturing women’s say in household decisions and examined the impact of a woman’s social and economic resources and household structure on her family power and gender preferences in Minya, Egypt. Marital household structure mainly residence with parents-in-law, brothers-in-law and the husband decrease women’s influence in decisions. Social resources had a significant impact on women decision-making; on average, women in endogamous marriages have greater influence in life course decisions than do women in non-endogamous marriages and women’s age is significantly associated only with having greater influence in daily domestic decisions. Economic resources impact depends on the variable used to capture it, while her own education and work as well as her husband education had a significant positive impact on daily and life course decisions; wealth measures had no significant effect. Similarly, Yount et al. (2016) used factor analysis to explore the multi-dimensionality of Egyptian women’s agency. They focused on the effect of women’s age at first marriage on her empowerment. They used the ELMPS 2006 and applied factor analysis to explore and test the factor structure of women’s agency on three main dimensions: family decisions, freedom of movement and acceptance of violence against wives. They used as well MIMIC structural equations model to test for Differential Item Functioning (DIF) by women’s age at first marriage. Results showed that women’s older age at first marriage was positively associated with family decision-making power and gender-violence attitudes, but not freedom of movement, thus confirming the multidimensional aspect of women’s empowerment. Finally, Salem et al. (2017) studied the impact of ever-married women’s market work compared to those with subsistence work and those who do not work on women’s empowerment in rural Minya, Egypt. They focused on three dimensions of empowerment: economic decision-making, freedom of movement and equitable gender role attitudes. Using structural equation model with propensity score adjustment, the results showed that women’s work has a positive impact on women’s freedom of movement where the effect of market work exceed that of subsistence work. But women’s work does not affect decision- making power or gender attitudes. However, those studies have some limitations. First, despite using direct measurement for empowerment most of them focused on a single dimension of empowerment decision- making with the exception of Kishor (1995), Yount (2016) and Salem et al. (2017). Still these later two studies focused on the impact of a single factor [age at marriage for Yount (2016) and woman’s work for Salem et al. (2017)] on empowerment. In addition, Yount (2016) used relatively old data set, while Salem et al. (2017) used a subsample of only 600 women. Second, a common shortcoming of most of the previous studies is ignoring the macro level differences of the community where the woman lives (Durrant and Sathar, 2000; Roushdy, 2004). Finally, none of the studies reviewed examined the effect of wealth level on women’s empowerment. Hence, this research is an attempt to address those limitations. First, we use the most available recent data set to tackle multiple dimension of women’s empowerment in the same analysis namely, two dimensions of women’s empowerment are studied; mobility and decision-making inside households. More precisely, using the ELMPS (2012), the paper focused on the determinants of women’s empowerment in Egyptian households. Second, we measure women’s empowerment using a measurement modeling approach that allows for differential weighting in the relationship of latent empowerment variable with the observed items. Third, the macro level differences in women’s status are tackled through using Resources versus social constrains 159 location variables[4]. Finally, given the important correlation between poverty and women’s empowerment, our analysis includes a variable that captures the wealth status of the woman’s household as one determinant of empowerment. 3. Methodology This paper uses the MIMIC Model, which is used when there are several causes and several indicators for a single latent variable (Joreskog and Goldberger, 1975). In our case, this latent variable is women’s empowerment in Egypt, noted as E*. The different determinants of empowerment include social resources, social constraints, economic resources and demographic variables. Then empowerment affect the decision-making power of the respondent within her household as well as her freedom of mobility. The decision-making power and the freedom of mobility are represented in our model by several decision and mobility indicators (See Appendix 1). The advantage of using a MIMIC model is that it allows exploring the linkages between the determinants of our latent variable, empowerment, and several its indicators, without a directly observable measure of empowerment (Rose and Spiegel, 2009). Moreover, the MIMIC model allows considering simultaneously different empowerment indicators, which are the different decisions in our case, in addition to accounting for the interdependence between these decisions. More precisely, the MIMIC model consists of estimating two interdependent sets of structural equations. The first is a structural equation that models the causes of the latent variable empowerment (E*). As empowerment variable, E*, takes value 1 if woman is empowered, 0 otherwise, the structural equation can be written as follows, where the f(.) is logit function, Xs are the different causes of empowerment and the error term « follow logistic distribution. P E* ¼ 1ð Þ ¼ f X1; . . . :; Xk; «ð Þ (1) The regressors X include the causes of empowerment that can be divided into four groups: social resources, economic resources, social constraints and demographic characteristics. Following the literature, the respondent’s social and economic resources include her age in years and its square –to take into consideration, the non-linear effect of age- her education and her employment status. To account for the fact that woman empowerment could be affected by her employment status and vice versa which may cause a problem of endogeniety; the employment status of the respondent in 2006 is used instead of her current employment status. As it is expected that being employed in 2006 may affect her actual level of empowerment in 2012, but the inverse is not true. Other social and economic resources include her parents’ employment status, her share and her family’s share in the marriage costs. This group of determinates include also a dummy variable for wealth quintiles based on wealth score that accounts for the durable goods available to the household. To control for social constraints, we include variables, such as the number of her children, if there is an adult son living with her and if she is living with her mother in law. Moreover, to take into account the role that maybe played by the respondent’s husband characteristics in affecting her decision-making power and her freedom of movement, his age and education gap between him and her (age gap) are included in the model. In addition to the education gap that reflects if both have same education, if he has higher education by one level, two or more levels and if he has lower education by one level, two or more levels. Her husband’s employment status is included in the model as well. Finally, the model includes regional dummies of the five Egyptian regions where the respondent lives, to control for the social context where the respondent lives. REPS 3,3/4 160 The second, set of equations is the indicators equations, which are the outputs of empowerment. In our cases, we have ten indicator equations; six for the decision-making power, DIi, for who have the say concerning issues as large household’s purchases, daily food and purchase of her clothes. And four mobility indicators, MIj, which are tackling her ability to visit sites such as the local market or health centers. Each variable of DIi and MIj may take several answers based on who takes the decision and based on the ability to go out with or without permission from other family members, respectively. For instance, concerning the decision indicators, women may take decisions alone, with others or do not participate at all. Hence, each decision indicator is assigned the highest rank if she takes the decision alone, followed by women who decide jointly with their husbands then come those who decide jointly with others in their household and finally women who have no say in the decision. Similarly, for mobility indicators, she may be able to go out without the need of permission, by just informing them or with someone from the households[5]. Accordingly, DIi and MIj are two sets of observable indicators of empowerment, which take ordered values, hence, the second set of structural equations can be written as follows, where the gi (.) and fj (.) are ordered logit and the errors terms mi; �i follow logistic distribution: DIi ¼ gi E*; m i � � ; i ¼ 1; 2; ::::6 (2A) MIj ¼ fj E*; vj � � ; j ¼ 1; 2; ::::4 (2B) 4. Data The data used in this paper are drawn from the Egyptian labor Market Panel Survey (ELMPS) for 2012. The ELMPS is carried out by the Economic Research Forum (ERF) in cooperation with Egypt’s Central Agency for Public Mobilization and Statistics (CAPMAS) since 1998. The ELMPS 2012 is the third round of this periodic longitudinal survey that tracks the labor market and the demographic characteristics of households and individuals interviewed in 2006, both individuals included in the ELMS 1998 and individuals added in 2006, as well as a refresher sample of 2,000 new households to ensure that the data continues to be nationally representative, a total sample of 12,060 households and 49,186 individuals. The ELMPS is considered a wide-ranging, nationally representative panel survey that covers topics such as parental background, education, housing, access to services, residential mobility, migration and remittances, time use, marriage patterns and costs, fertility, women’s decision making and empowerment, job dynamics, savings and borrowing behavior, the operation of household enterprises and farms, besides the usual focus on employment, unemployment and earnings in typical labor force surveys. Our research focuses on 5,222 married women, in 5,181 households, aged between 15 and 49 years old, with an average age of 33 years old[6]. Regarding social constraints, only 5 per cent of the respondents live with their mother in law and 22 per cent are living with their adult son. Only 21 per cent of the respondents were employed in 2006. Most of the respondents (93 per cent) are married with men older than them. While, only 30 per cent are married to men with higher education level compared with 20 per cent of the respondents married to men with lower education level. Regarding the economic resources; it is found that 18 and 18 per cent of the sample is in the poorest and richest quintiles, respectively (Table I). While for other demographic characteristics, Table II shows that 17 per cent of the sample lives in metropolitan areas: Resources versus social constrains 161 Great Cairo, Alexandria and Suez Canal. The remaining is distributed between Lower and Upper Egypt in both rural and urban areas, with more than 50 per cent of the sample living in the rural. As described above, women’s empowerment is measured here by decision-making power and mobility indices. Figures 1 and 2 show the distribution of the answers of our sample of interest for each of the questions of decision-making index and mobility index, respectively. Table I. Sample distribution according to wealth quintiles Wealth quintile (%) The poorest 18 Second quintile 20 Third quintile 22 Fourth quintile 20 The richest 18 Total 100 Source: Computed by the authors from ELMPS (2012) Table II. Distribution of the sample by regions Region (%) Metropolitan 17 Urban Lower 12 Urban Upper 15 Rural Lower 31 Rural Upper 25 Total 100 Source: Computed by the authors from ELMPS (2012) Figure 1. Distribution of answers for the decision-making questions (%) REPS 3,3/4 162 For the decision-making questions, we found that, women mainly have a say in the daily decisions; such as daily purchases and what should be cooked daily. For large household’s purchases, visits to family and friends, getting medical treatment for herself and buying clothes to herself, most of women in our sample take these decisions with their husbands (Figure 1). For the mobility dimension, most of women of our sample need permission before going to the local market (48 per cent) or to the health center (54 per cent), before taking children to the health center (55 per cent) or visiting families and friends (65 per cent). It is worth noting that going to the local health center is the most restricted place for Egyptian women in our sample as 31 per cent of our sample cannot go alone as compared to 16, 28 and 18 per cent of the sample cannot go alone to local market, take children to health center and go to friends or relative house, respectively (Figure 2). 5. Empirical results The MIMIC model was estimated using the ELMPS (2012) data for Egypt, our latent variable Empowerment had significant (p < 0.01) factor loadings on all six decision-making power indicators (equal to or exceeding 1.580) as well as the four mobility indictors (equal to or exceeding 1.195) (Appendix 3 and 4). The estimated results for the decision-making index and mobility index are represented in Table III. The two models include variables measuring economic resources, social resources, social constraints and regional variables. For the social resources; the results show that age has a non-linear effect on empowerment as measured by both decision-making power and mobility. Women’s decision-making power and freedom of mobility increased with age until 40 and 37 years old, respectively, then decreased. For parents’ employment, the results showed that father’s employment has a positive significant effect on his daughter empowerment as measured by her mobility. While for her decision-making power only a wage worker father significantly increases his daughter’s empowerment as compared to a no job or unpaid family worker father. As found by the literature, mother’s employment plays an important role in strengthening her daughter’s empowerment. Our results suggest that an employed mother – no matter the type of employment – as compared with mothers with no job had a positive and significant impact on her daughter’s empowerment Figure 2. Distribution of answers for the mobility questions (%) Resources versus social constrains 163 Table III. Estimated coefficients of the decision power and mobility regressions Decision Mobility Empowerment Empowerment Social resources Respondent’s age 0.0463*** (0.010) 0.0559*** (0.0123) Respondent’s age squared �0.001*** (0.000) �0.000754*** (0.000186) Father’s employment status (Reference category: unpaid family worker/no job) Wage worker 0.133* (0.072) 0.198** (0.0855) Employer 0.117 (0.073) 0.186** (0.0874) Self-employed 0.113 (0.076) 0.149* (0.0900) Mother’s employment status (Reference category: no job) Wage worker 0.087** (0.037) 0.0354 (0.0439) Employer/self-employed 0.209*** (0.073) 0.0600 (0.0860) Unpaid family worker 0.173*** (0.044) 0.0905* (0.0521) Share of marriage cost 0.146*** (0.055) 0.147** (0.0658) Economic resources Respondent’s education (Reference category: Illiterate) Literate/Basic – Intermediate Education �0.012 (0.029) 0.0291 (0.0343) Secondary education 0.019 (0.029) 0.00358 (0.0342) Post-Secondary – Post University Education �0.005 (0.038) �0.0692 (0.0453) Respondent was employed in 2006 0.060*** (0.023) 0.0470* (0.0268) Respondent’s wealth status (Reference Category: First quintile) Second quintile 0.0310 (0.025) 0.00405 (0.0298) Third quintile 0.018 (0.024) 0.0246 (0.0284) Fourth quintile 0.008 (0.025) �0.00854 (0.0300) Fifth quintile 0.014 (0.00913) �0.0220** (0.0109) Social constraints Are you daughter in law? �0.330*** (0.0429) �0.121** (0.0493) Do you have an adult son living with you? 0.0900*** (0.0335) �0.0180 (0.0395) Number of children 0.00124 (0.00702) 0.0619*** (0.00873) Age gap between the respondent and her husband (Reference Category: he is older than her) He is younger than her 0.00677 (0.0440) 0.0738 (0.0525) He has the same age as her 0.0574 (0.0488) 0.0199 (0.0580) Education gap between the respondent and her husband (Reference Category: they have the same education level) He has higher education by two or more levels �0.0410 (0.0388) �0.130*** (0.0465) He has higher education by one level �0.0201 (0.0231) �0.0699** (0.0276) He has lower education by two or more levels 0.0136 (0.0483) 0.00401 (0.0576) He has lower education by one level 0.0327 (0.0261) 0.0223 (0.0311) Husband’s employment status (reference category: no job) Wage worker �0.0376 (0.0358) �0.00578 (0.0424) Employer/self employed �0.0710* (0.0386) �0.0821* (0.0456) Demographic characteristics Regional residence (reference category: Metropolitan region) Urban Lower region �0.126*** (0.0332) 0.0342 (0.0392) Urban Upper Region �0.416*** (0.0353) �0.144*** (0.0379) Rural Lower Region �0.178*** (0.0283) 0.0404 (0.0327) Rural Upper Region �0.415*** (0.0352) �0.120*** (0.0378) Observations 5,222 5,222 Notes: Standard errors in parentheses; ***p < 0.01, ** p < 0.05, * p < 0.1 REPS 3,3/4 164 as measured by decision-making power. However, the impact on decision-making power is more pronounced than on mobility. Finally, her own contribution and her parents’ contribution to marriage costs had a positive impact on empowerment as measured by the two indicators. However, social resources do not have the same impact on mobility as on decision-making power. Concerning economic resources; all education categories -as compared to being illiterate- were found to have no significant effect on our two dimensions of empowerment. This surprising result may be explained by the fact that the education system in Egypt is not playing the expected role in transforming ideas and norms of the society towards more equitable gender roles. While for the respondent’s employment status, our results showed that being employed in 2006 has a significant positive impact on the respondent’s two empowerment’s dimensions. Her households’ wealth level has no significant impact on the respondent decision making index. But being in the fifth wealth quintile decreases her mobility. Social constraints are playing an important role in Egyptian women’s empowerment. Living with her mother in law decreases her decision-making power and mobility. While living with an adult son had a positive and significant effect on the decision-making power but a negative insignificant effect on mobility. The number of children a woman has can be considered as an asset for her empowerment; the higher the number of her children the more empowered she is, when empowerment is measured by mobility. However, it has a positive but insignificant effect on empowerment as measured by decision-making power. Concerning husband’s characteristics., the age gap between the respondent and her husband has no significant impact on her two dimensions of empowerment. Generally, as compared to a respondent whose husband has same education level, being married to a more educated husband than herself has a negative effect on empowerment. This effect was significant for women’s mobility but insignificant for her say in the household. While a husband with a lower level of education has a positive but insignificant effect on his wife’s two dimensions of empowerment. It is worth noting that those results hold no matter how much higher or lower is the level of education of husbands compared to his wife. Concerning a husband’s employment, an employed husband as compared to an unemployed husband has a negative impact on his wife two measures of empowerment. However, this effect is only significant for the employer or self-employed husband. Finally, the model includes regional dummies for four of the five Egyptian regions covered by our survey. Given the heterogeneity between the different Egyptian regions, including these dummies, allows capturing the characteristic of the community where she lives. For the decision-making aspect, women living in any of the four Egyptian regions included in our model are less empowered as compared to those who live in Metropolitan area. While for the mobility aspect, respondents living in Upper Egypt, rural or urban, are less empowered compared to their metropolitan counterparts. It worth noting that another version of the two models was estimated without the regional dummies[7]. Comparing the results of the two versions of each model shows that context, measured by regional dummies, was found to be an important determinant of women’s empowerment. It was also found that including the regional dummies, to reflect the context where she lives, affects the impact of the economic resources on women’s empowerment. Without the regional dummies, being in the third or fifth wealth quintile would increase the respondent’s decision-making power. And being in the third wealth quintiles will increase her mobility compared with respondent in the first quintile. Moreover, Resources versus social constrains 165 the presence of the regional dummies in the model affects the role played by her father’s employment and by the education gap between her and her husband on her decision-making power. Such results show that when the community and the social context where the women lives are captured by the model, they play a more significant role in the Egyptian women’s empowerment, compared with the economic and social resources. To sum up, we can conclude that our results came in line with the literature; age, employment, parents’ employment and community context appeared as significant determinants of empowerment. Further, most of these determinants, showed varying impact depending on the dimension of empowerment studied. 6. Discussions and conclusion This study tackles the question of women’s empowerment in highly patriarchal societies like Egypt. Specifically, the study tries to answer the following question: which resources and social constraints determine women’s empowerment as measured by the power of women over household decisions and her freedom of movement? Based on our theoretical framework, we proposed three hypotheses. Findings partially support H1 in the case of power over household decisions, being a daughter in-law, decrease a woman’s decision-making power while living with an adult son increase it and surprisingly increase in number of children is irrelevant. Findings with regards to being a daughter in-law are also consistent with other studies (Balk, 1994; Yount, 2005). For mobility, results were more consistent with hypothesis (1) living with parents-in-law and having more children decrease woman freedom of movement while living with an adult son has no effect. One explanation for the positive effect of living with an adult son on decision-making power is that according to Egyptian norms and culture, being the mother of a son gives the woman more prestige and power as compared with those without a son. It is also common that being the mother of a married son give her more power relative to her daughter-in-law. Concerning economic resources, husband’s education results for the decision-making power came in line with H2 education status of husbands was irrelevant for his wife’s decision-making while for mobility contrary to H2 women whose husbands have a higher level of education as compared to those whose husbands have same level of education have lower mobility. Furthermore, not totally in line with H2, husbands’ employment status effect depends on the husband’s type of employment. Compared to a no job husband, husbands who are employer or self-employed had a negative effect on both decision-making power and mobility of his wife while wageworker husbands have no effect (this wage worker case matches H2). Concerning household’s wealth, results for decision-making power came in line with H2 as wealth was irrelevant for that dimension but for mobility only richest woman are less mobile than those in the poorest quintile. These results suggest that H2 is applicable for decision-making power while it is less applicable for mobility. That is husbands’ economic resources as measured, by his education and employment status, and of the household, as reflected by household standard of living, are irrelevant to a woman’s decision-making power i.e. overt power. While for mobility, i.e. covert power, it has a more pronounced negative effect. This could be explained by the nature of patriarchal communities and the dominant influence of norms and traditions in such communities where husbands would care about social image vis-à-vis the society, so this is reflected on restricted mobility (covert power) of wives in the same time where it is irrelevant when it comes to household decisions (overt power) which is less exposed to the external society. These results also highlight the multidimensional aspect of women’s REPS 3,3/4 166 empowerment as various factors have different effects on different empowerment dimensions. Contrary to H3, formal education was found to be irrelevant for both household decisions and mobility. On the other hand, and consistent with H3, employed women have higher decision-making power and higher freedom of movement. The higher the women’s and her family’s contribution to marriage costs, the higher her empowerment. Moreover, parents’ characteristics had an important positive role. Employed fathers increase his daughter’s empowerment however the effect was more relevant for mobility. In line with the literature, employed mothers also increase daughter’s empowerment, but mother’s employment had a stronger effect than father’s employment. Moreover, contrary to father’s employment the effect of mother employment was more pronounced for decision-making power compared to mobility. Such results suggest that women’s empowerment is more affected by resources, both economic and social, than constraints. Moreover, the effect differs according to type of resources; employment status, share in marriage costs and her parents’ characteristics are more influential and more relevant to women’s empowerment than women’s access to non- customary resources like formal education. Several explanations could be proposed here. First, this may be explained by the fact that what really matters to empowerment is control over resources and actual earnings i.e. that a woman earn income independently which is captured by the share in marriage costs and employment status and not education. This could be especially true given the fact that in Egypt although women have relatively been doing very well when it comes to education in recent years, their labor force participation rates are very low. Hence, females’ education in Egypt is not translated to earnings. Second, although it is believed that empowerment is related to awareness, norms and ideas that could be formed or transformed through education, in Egypt education system suffers from various challenges related to quality that may hinder this role. Previous studies point out that less than 50 per cent of ever-married Egyptian women of reproductive age agree that education is a mean to prepare women for marriage not only for work (El-Zanaty et al., 1996). Finally, social context as captured by the regional dummies is found to have a significant impact on both dimensions of woman empowerment investigated. Not only living in any region in Egypt as compared to greater Cairo decreased both woman decision-making power and mobility but also the impact of other factors on both dimensions was affected. Therefore, in addition to the individual, households, socio demographic and socio-economic characteristics, local context should be considered when analyzing determinants of women’s empowerment. Hence, future research tackling this issue should focus on the regional and social context. This later should not only be captured by the regional dummies; other regional characteristics should be included to determine the channels through which context can affect women’s empowerment. Accordingly, the results of this study provide evidences concerning the conditions under which Egyptian women’s empowerment could be enhanced and translated into improved life chances for them. Three key messages could be delivered in that regard. First, women own economic resources as captured by her employment status are an important source of her empowerment. Second, contrary to theoretical prediction education is not playing its expected role in developing awareness and transforming ideas concerning gender roles in a patriarchal society like Egypt. Third, the importance of social local context is fundamental. Legal, social and institutional arrangements reinforce both women and men’s perceptions of gender roles and the benefits of patriarchal relationship in societies like Egypt. Resources versus social constrains 167 Consequently, policies should work on encouraging female education and reforming the educational system by augmenting it with materials that transform local ideas to redefine the boundaries of women’s lawful social identity beyond patriarchal relationships, reshape perception of gender roles to be more equitable. Moreover, female labor force participation and employment should be encouraged, hence policies should reform labor markets so that women have greater flexibility in the timing of marriage and employment, enhance female entrepreneurial skills and facilitate their access to finance so that women’s productive work is considered as compatible to that of men. Finally, since women’s empowerment is a multi- dimension phenomenon it should be tackled with caution and cannot be grouped or aggregated. Formulating policies to enhance women’s empowerment in Egypt need to tackle different dimensions separately where some policies may be appropriate for tackling various dimensions while others would only tackle specific ones. For instance, tackling the freedom of movement dimension requires increasing access to safe means of transportation and providing services such as street lighting and nearby childcare. While both the decision- making power and the freedom of movement dimensions require policies and actions targeting raising awareness of the importance of women’s role in the household and the whole community. Such campaigns should be provided by the different stakeholders; the government, the civil society, schools and universities, international organizations and the religious personnel whom should all cooperate with female community leaders who are in closer contact with women, especially in rural areas. Notes 1. Hoddinott and Haddad 1995; Roushdy 2004; Kishor and Gupta 2004; Namoro and Roushdy 2009; and Upadhyay and Karasek 2010. 2. Anderson and Eswaran 2009; Malhotra and Schuler 2005; and Yount et al. 2015. 3. (Hashemi et al. (1996); Malhotra and Mather (1997); Mason (1998); Zaman (1999); Jejeebhoy (2000); Mason and Smith (2000); Jejeebhoy and Sathar (2001); Parveen and Leonhäuser (2005); Kamal and Zunaid (2006); Gupta and Yesudian (2006); 200 Allendorf (7); Anderson and Eswaran (2009); Khan and Awan (2011); Varghese, 2011). 4. The macro level determinants are investigated further in Assaad et al. (2015), where we measured those determinates using community level variables that capture norms and traditions. 5. More details about the decision-making indicators and mobility indicators and their answers are available in Appendix 2. 6. Questions related to decision-making and mobility were asked to married women aged between 15 and 49 years old. 7. The estimated results of the model without the regional dummies are presented in Appendix E. References Abdel Mowla, S. (2009), “Education and economic empowerment of women in Egypt”, American University in Cairo – Social Research Center, Working Paper No. 002. Agarwala, R. and Lynch, S.M. (2006), “Refining the measurement of women’s autonomy: an international application of a multi-dimensional construct”, Social Forces, Vol. 84 No. 4, pp. 2077-2098. Allendorf, K. (2007), “Do women’s land rights promote empowerment and child health in Nepal?”, World Development, Vol. 35 No. 11, pp. 1975-1988. REPS 3,3/4 168 Anderson, S. and Eswaran, M. (2009), “What determines female autonomy? Evidence from Bangladesh”, Journal of Development Economics, Vol. 90 No. 2, pp. 179-191. Assaad, R. and Kraft, C. (2015), “The structure and evolution of employment in Egypt: 1998-2012”, The Egyptian Labor Market in an Era of Revolution, pp. 27-51. Assaad, R., Nazier, N. and Ramadan, R. (2015), “Empowerment is a community affair: community level determinants of married women’s empowerment in Egypt”, Economic Research Working paper no 959, October. Balk, D. (1994), “Individual and community aspects of women’s status and fertility in rural Bangladesh”, Population Studies, Vol. 48 No. 1, pp. 21-45. Burr, W.R., Ahern, L. and Knowles, E.M. (1977), “An empirical test of Rodman’s theory of resources in cultural context”, Journal of Marriage and the Family, Vol. 39 No. 3, pp. 505-514. Durrant, V.L. and Sathar, Z.A. (2000), “Greater investments in children through women’s empowerment”, A Key to Demographic Change in Pakistan?, Population Council. Egyptian Labor Market Panel Survey (2012), Egyptian Labor Market Panel Survey, Economic Research Forum, Cairo. Fox, G.L. (1973), “Another look at the comparative resources model: assessing the balance of power in turkish marriages”, Journal of Marriage and the Family, Vol. 35 No. 4, pp. 718-730. Garikipati, S., Isabelle, A., Isabelle, G. and Szafarz, A. (2017), “The cost of empowerment: multiple sources of women’s debt in rural India”, The Journal of Development Studies, Vol. 53 No. 5, pp. 700-722. Goetz, A.M. and Gupta, R.S. (1996), “Who takes the credit? Gender, power, and control over loan use in rural credit programs in Bangladesh”, World Development, Vol. 24 No. 1, pp. 45-63. Govindasamy, P. and Malhotra, A. (1996), “Women’s position and family planning in Egypt”, Studies in Family Planning, Vol. 27 No. 6, pp. 328-340. Gupta, K. and Yesudian, P.P. (2006), “Evidence of women’s empowerment in India: a study of socio- spatial disparities”, GeoJournal, Vol. 65 No. 4, pp. 365-380. Hashemi, S.M., Schuler, S.R. and Riley, A.P. (1996), “Rural credit programs and women’s empowerment in Bangladesh”, World Development, Vol. 24 No. 4, pp. 635-653. Hoddinott, J. and Haddad, L. (1995), “Does female income share influence household expenditures? Evidence from Côte d’Ivoire”, Oxford Bulletin of Economics and Statistics, Vol. 57 No. 1, pp. 77-96. Jejeebhoy, S.J. (1991), “Women’s status and fertility: successive cross-sectional evidence from Tamil Nadu, India, 1970-80”, Studies in Family Planning, Vol. 22 No. 4, pp. 217-230. Jejeebhoy, S.J. (2000), “Women’s autonomy in rural India: its dimensions, determinants, and the influence of context”, In Women‘s Empowerment and Demographic Processes: Beyond Cairo, Eds Presser, Harriet, and Gita Sen, Oxford University Press, New York, NY. Jejeebhoy, S.J. and Sathar, Z.A. (2001), “Women’s autonomy in India and Pakistan: the influence of religion and region”, Population and Development Review, Vol. 27 No. 4, pp. 687-712. Joreskog, K.G. and Goldberger, A.S. (1975), “A estimating model with multiple indicators and multiple causes of a single latent variable”, Journal of the American Statistical Association, Vol. 70 No. 351, pp. 631-639. (September. 1975). Kabeer, N. (1998), “Education is my daughter’s future”, Index on Censorship, Vol. 27 No. 3, pp. 154-160. Kabeer, N. (1999), “Resources, agency, achievements: reflections on the measurement of women’s empowerment”, Development and Change, Vol. 30 No. 3, pp. 435-464. Kabeer, N. (2001a), “Reflections on the measurement of women’s empowerment”, Discussing Women’s Empowerment: Theory and Practice. Sida Studies 3, Novum Grafiska AB, Stockholm. Kabeer, N. (2001b), “Conflicts over credit: re-evaluating the empowerment potential of loans to women in rural Bangladesh”, World Development, Vol. 29 No. 1, pp. 63-84. Resources versus social constrains 169 Kabeer, N. (2005a), “Gender equality and women’s empowerment: a critical analysis of the third millennium development goal 1”, Gender and Development, Vol. 13 No. 1, pp. 13-24. Kabeer, N. (2005b), “Is microfinance a‘magic bullet’ for women’s empowerment? Analysis of findings from South Asia”, Economic and Political Weekly, pp. 4709-4718. Kabeer, N. (2011), “Between affiliation and autonomy: navigating pathways of women’s empowerment and gender justice in rural Bangladesh”, Development and Change, Vol. 42 No. 2, pp. 499-528. Kamal, N. and Zunaid, K.M. (2006), “Education and Women’s Empowerment in Bangladesh”, Working Paper 11, Centre for Health, Population and Development (CHPD), Independent University, Bangladesh. Kandiyoti, D. (1988), “Bargaining with patriarchy”, Gender and Society, Vol. 2 No. 3, pp. 274-290. Khan, U. and Awan, S.R. (2011), “Contextual assessment of women’s empowerment and its determinants: evidence from Pakistan”, MPRA No. 30820, Bond University, Australia. Khattab, A. and Sakr, H. (2009), “Women’s economic empowerment in Egypt: challenges and opportunities”, Social Research Center Working Paper No. 001. Kishor, S. (1995), “Autonomy and Egyptian women: findings from the 1988 Egypt demographic and health survey”, Occasional Papers 2, Macro International Inc, Calverton, MD. Kishor, S. (2000a), “Empowerment of women in Egypt and links to the survival and health of their infants”, “in Women‘s Empowerment and Demographic Processes: Beyond Cairo, eds Presser, Harriet and Gita Sen, Oxford University Press, New York, NY. Kishor, S. and Gupta, K. (2004), “Women’s empowerment in India and its states: evidence from the NFHS”, Economic and Political Weekly, Vol. 39 No. 7, pp. 694-712. Kishor, S. and Subaiya, L. (2008), “Understanding women’s empowerment: a comparative analysis of demographic and health surveys (DHS) data”, DHS Comparative Reports No. 20, MACRO International, Calverton, MD. Kritz, M.M., Makinwa-Adebusoye, P. and, (1999), “Determinants of women’s decision-making authority in Nigeria: the ethnic dimension”, Sociological Forum, Vol. 14 No. 3, pp. 399-424. Malhotra, A. and Mather, M. (1997), “Do schooling and work empower women in developing countries? Gender and domestic decisions in Sri Lanka”, Sociological Forum, Vol. 12 No. 4, pp. 599-630. Malhotra, A. and Schuler, S.R. (2005), “Women’s empowerment as a variable in international development”, Measuring Empowerment: Cross-Disciplinary Perspectives, pp. 71-88. Mason, K.O. (1997), How Family Position Influences Married Women’s Autonomy and Power in Five Asian Countries, East-West Center, Honolulu, HI. Mason, K. O. (1996), “Wives economic decision-making power in the family in five Asian countries”, in Mason K.O. (Ed.), the Changing Family in Comparative Perspective: Asia and the United States, East-West Center, Honolulu. Mason, K. (1998), “Wives economic decision-making power in the family in five Asian countries”, in Mason K.O. (Ed.), The Changing Family in Comparative Perspective: Asia and the United States, East-West Center, Honolulu. Mason, K.O. and Smith, H.L. (2000), “Husbands’ versus wives’ fertility goals and use of contraception: the influence of gender context in five Asian countries”, Demography, Vol. 37 No. 3, pp. 299-311. Mogford, E. (2011), “When status hurts: dimensions of women’s status and domestic abuse in rural Northern India”, Violence against Women, Vol. 17 No. 7, pp. 835-857. Namoro, S. and Roushdy, R. (2009), “Intrahousehold resource allocation in Egypt: women’s empowerment and investment in children”, Middle East Development Journal, Vol. 1 No. 1, pp. 105-121. Nawar, L., Lloyd, C.B. and Barbara, I. (1995), “Women’s autonomy and gender roles in Egyptian families”, In: Obermeyer, C.M. (Ed.), Family, Gender, and Population in the Middle East: Policies in Context, American University in Cairo Press, pp. 147-178. REPS 3,3/4 170 Oropesa, R.S. (1997), “Development and marital power in Mexico”, Social Forces, Vol. 75 No. 4, pp. 1291-1318. Parveen, S. and Leonhäuser, I.-U. (2005), Empowerment of Rural Women, in Bangladesh: A household level analysis, Vol. 72, Margraf, Berlin. Population Census (2006), Central Agency for Public Mobilization and Statistics (CAPMAS). Robert, O., Jr, Donald, M.W. and Blood, (1960), “Husbands and wives: the dynamics of married living”, Free Press,. Glencoe, Ill. Rodman, H. (1972), “Marital power and the theory of resources in cultural context”, Journal of Comparative Family Studies, Vol. 3 No. 1, pp. 50-69. Rogler, L.H., Cooney, R.S., Hurrell, R.M. and Ortiz, V. (1982), “Decision making in intergenerational puerto Rican families”, Journal of Marriage and the Family, Vol. 44 No. 3, pp. 621-631. Rose, A.K. and Spiegel, M.M. (2009), “Cross-country causes and consequences of the 2008 crisis: early warning”, Federal Reserve Bank of San Francisco, Working Paper 2009-17. Roushdy, R. (2004), “Intrahousehold resource allocation in Egypt: does women’s empowerment lead to greater investments in children?”, Economic Research Forum. Salem, R., Cheong, Y.F. and Yount, K.M. (2017), “Is women’s work a pathway to their agency in rural Minya, Egypt?”, Social Indicators Research, pp. 1-25. UNDP and Ministry of Economic Development (2010), “Egypt progress toward achieving the millennium development goals”. Upadhyay, U.D. and Karasek, D.D. (2010), “Women’s empowerment and achievement of desired fertility in sub-Saharan Africa”, DHS Working Papers No. 80. Calverton, ICF Macro, MD. Varghese, T. (2011), “Women empowerment in Oman: a study based on women empowerment index”, Far East Journal of Psychology and Business, Vol. 2, No. 2, February. Vlassoff, C. (1994), “Gender inequalities in health in the third world: uncharted ground”, Social Science and Medicine, Vol. 39 No. 9, pp. 1249-1259. Whyte, M.K. (1978), The Status of Women in Preindustrial Societies, Princeton University Press. Xu, X. and Shu-Chuan, L. (2002), “Resources, gender ideologies, and marital power: the case of Taiwan”, Journal of Family Issues, Vol. 23 No. 2, pp. 209-245. Yount, K.M. (2005), “Women’s family power and gender preference in Minya, Egypt”, Journal of Marriage and Family, Vol. 67 No. 2, pp. 410-428. Yount, K.M., VanderEnde, K.E., Dodell, S., Cheong, Y.F. and, (2015), “Measurement of women’s agency in Egypt: a national validation study”, Social Indicators Research, Vol. 128 No. 3, pp. 1171-1192. Zaman, H. (1999), “Assessing the poverty and vulnerability impact of micro-credit in Bangladesh”, A case study of BRAC, Bangladesh, pp. 2-7. Further reading Basu, A.M. and Gayatri Brij, K. (2005), “Two concepts of female empowerment: some leads from DHS data on women’s status and reproductive health”, A Focus on Gender–Collected Papers on Gender Using DHS Data, ORC Macro, Calverton MD, pp. 15-33. Central Agency for Public Mobilization and Statistics (CAPMAS) “Poverty indicators according to the egyptian integrated household survey, 2010/2011”, Deepa, Narayan-Parker, (Ed.) (2005), Measuring Empowerment: Cross-Disciplinary Perspectives, World Bank Publications, Washington DC. El-Zanaty, F.H., Hussein, A.S., Zaky, H.H. and Ann, A.W. (1993), “Egypt demographic and health survey 1992”, Macro International, Calverton, MD. Kabeer, N. (2017), “Economic pathways to women’s empowerment and active citizenship: what does the evidence from Bangladesh tell us?”, The Journal of Development Studies, Vol. 53 No. 5, pp. 649-663. Resources versus social constrains 171 Kishor, S. (1993), “‘May god give sons to all’: gender and child mortality in India”, American Sociological Review, Vol. 58 No. 2, pp. 247-265. Kishor, S. (2000b), “Women’s contraceptive use in Egypt: what do direct measures of empowerment tell us?”, “in Annual Meeting of the Population Association of America, Los Angeles, pp. 23-25. Mosedale, S. (2005), “Assessing women’s empowerment: towards a conceptual framework”, Journal of International Development, Vol. 17 No. 2, pp. 243-257. Corresponding author Hanan Nazier can be contacted at: hanan.nazier@feps.edu.eg REPS 3,3/4 172 mailto:hanan.nazier@feps.edu.eg Appendix 1 Appendix 2. The decision and mobility indicators and their answers Decision-making indicators include the following six questions: (1) DI1: Who has the final say on making large household’s purchase? (2) DI2: Who has the final say on making household’s purchase for every day? (3) DI3: Who has the final say on your own visits to family and friends? (4) DI4: Who has the final say on what food should be cooked? (5) DI5: Who has the final say on getting medical treatment for herself? (6) DI6: Who has the final say on getting clothes for herself? Each indicator may take one of the following values: � 2 if the respondent takes the decision alone. � 1 if the respondent takes the decision with someone else (husband, father, mother [. . .] etc). � 0 if she is not involved in the decision at all. For the mobility indicators, it includes the following four questions: (1) MI1: Do you need permission to go to local market? (2) MI2: Do you need permission to go to local health center? (3) MI3: Do you need permission to take children to health center? (4) MI4: Do you need permission to go to friends or relative house? Each indicator may take one of the following values: � 4 if she needs no permission � 3 if she needs to just inform them. � 2 if she need permission. � 1 if she cannot go alone. Figure A1. MIMIC Model Resources versus social constrains 173 Appendix 3 Table AI. Estimated impact of empowerment on the different indicators for mobility (MIMIC) DI1 DI2 DI3 DI4 DI5 DI6 Empowerment 1(0) 2.048***(0.116) 1.589***(0.0781) 1.693***(0.0948) 1.609***(0.0813) 1.610***(0.0825) Observations 5,222 5,222 5,222 5,222 5,222 5,222 Notes: Standard errors in parentheses; ***p < 0.01, ** p < 0.05, * p < 0.1 Table AII. Estimated impact of empowerment on the different indicators for mobility (MIMIC) MI1 MI2 MI3 MI4 Empowerment 1(0) 2.723***(0.170) 1.549***(0.0709) 1.195***(0.0541) Observations 5,222 5,222 5,222 5,222 Notes: Standard errors in parentheses; ***p < 0.01, ** p < 0.05, * p < 0.1 REPS 3,3/4 174 Appendix 4 Table AIII. Estimated coefficients of the decision-making and mobility regressions without regional dummies Decision Mobility Variables Empowerment Empowerment Social resources Respondent’s age 0.0546*** (0.0105) 0.0564*** (0.0122) Respondent’s age squared �0.000611*** (0.000157) �0.000728*** (0.000183) Father’s employment status (Reference category: unpaid family worker/no job) Wage worker 0.174** (0.0729) 0.220*** (0.0844) Employer 0.145* (0.0745) 0.211** (0.0862) Self-employed 0.157** (0.0767) 0.180** (0.0888) Mother’s employment status (Reference category: no job) Wage worker 0.0981*** (0.0375) 0.0378 (0.0432) Employer/self-employed 0.216*** (0.0740) 0.0643 (0.0848) Unpaid family worker 0.143*** (0.0445) 0.0758 (0.0512) Share of marriage cost 0.248*** (0.0563) 0.202*** (0.0646) Economic resources Respondent’s education (Reference category: Illiterate) Literate/Basic – Intermediate Education �0.0108 (0.0292) 0.0229 (0.0338) Secondary education 0.0146 (0.0291) 0.00359 (0.0336) Post-Secondary – Post University Education �0.0270 (0.0385) �0.0780* (0.0446) Respondent was employed in 2006 0.0160 (0.0226) 0.0227 (0.0261) Respondent’s wealth status (Reference Category: First quintile) Second quintile 0.0355 (0.0254) 0.0107 (0.0293) Third quintile 0.0421* (0.0239) 0.0497* (0.0277) Fourth quintile 0.0268 (0.0255) 0.00936 (0.0295) Fifth quintile 0.0479*** (0.00900) �0.0136 (0.0102) Social constraints Are you daughter in law? �0.354*** (0.0438) �0.130*** (0.0486) Do you have an adult son living with you? 0.0821** (0.0339) �0.0161 (0.0390) Number of children �0.0176** (0.00706) 0.0523*** (0.00841) Age gap between the respondent and her husband (Reference category: he is older than her) He is younger than her 0.0322 (0.0447) 0.0829 (0.0518) He has the same age as her 0.0491 (0.0495) 0.0162 (0.0573) Education gap between the respondent and her husband (Reference category: they have the same education level) He has higher education by two or more levels �0.0658* (0.0394) �0.142*** (0.0459) He has higher education by one level �0.0177 (0.0235) �0.0688** (0.0272) He has lower education by two or more levels 0.0416 (0.0490) 0.0174 (0.0568) He has lower education by one level 0.0584** (0.0265) 0.0306 (0.0306) Husband’s employment status (reference category: no job) wage worker �0.0372 (0.0364) �0.00230 (0.0418) Employer/self-employed �0.0831** (0.0391) �0.0793* (0.0450) Observations 5,222 5,222 Notes: Standard errors in parentheses; ***p < 0.01, ** p < 0.05, *p < 0.1 Resources versus social constrains 175 What empowers Egyptian women: resources versus social constrains? Introduction Background 2.1 Defining and measuring women’s empowerment and agency 2.2 Women’s empowerment measurement 2.3 Theoretical foundations of determinants of women’s economic empowerment 2.4 Empirical evidence of women’s economic empowerment in Egypt 3. Methodology 4. Data 5. Empirical results 6. Discussions and conclusion References 
work_km3clpwg7rhptfpnf4xt75inme	----	UAJB_A_1214333_O King’s Research Portal DOI: 10.1080/15265161.2016.1214333 Document Version Publisher's PDF, also known as Version of record Link to publication record in King's Research Portal Citation for published version (APA): Venkatapuram, S. (2016). Justice and Global Health Research. AMERICAN JOURNAL OF BIOETHICS, 16(10), 46-66. https://doi.org/10.1080/15265161.2016.1214333 Citing this paper Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination, volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are again advised to check the publisher's website for any subsequent corrections. General rights Copyright and moral rights for the publications made accessible in the Research Portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognize and abide by the legal requirements associated with these rights. •Users may download and print one copy of any publication from the Research Portal for the purpose of private study or research. •You may not further distribute the material or use it for any profit-making activity or commercial gain •You may freely distribute the URL identifying the publication in the Research Portal Take down policy If you believe that this document breaches copyright please contact librarypure@kcl.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1080/15265161.2016.1214333 https://kclpure.kcl.ac.uk/portal/en/publications/justice-and-global-health-research(318fbafa-682b-4e2e-807b-646a69d6dccb).html https://doi.org/10.1080/15265161.2016.1214333 Open Peer Commentaries Justice and Global Health Research Sridhar Venkatapuram, University of Johannesburg and King’s College London One of the most interesting and knotty puzzles in global health justice can be found in Margaret Whitehead’s deci- sion tree for determining which health inequalities across human beings demand a social response. Whitehead argued that the subset of health inequalities that are avoidable, unnecessary, and unfair or unjust are health “inequities” (Whitehead 1990). While inequalities are value-free observa- tions, inequities are moral bads that demand social action. While the effort is praiseworthy, I have argued elsewhere that many aspects of the health equity principles are prob- lematic (Venkatapuram 2011). In particular, at the first step, a health inequality or impairment that is deemed unavoid- able is moved outside of the scope of equity, ethics, and jus- tice. In philosophy, it is often stated that a moral “ought implies can.” So if a disease/impairment is unpreventable or untreatable, there cannot be an ethical duty to prevent or mitigate a resulting health inequality. However, such a first cut would also dissipate any claims to or duties to conduct research on a disease/impairment that is currently unavoid- able because we lack the knowledge about how to do so. A health inequality can also be unavoidable because there are not enough resources in a specific location to apply extant knowledge such as in many developing countries. Therefore, in relation to health and more, the prevailing view has been that moral claims and duties that cannot be immediately ful- filled are meaningless. Informed by his analyses of famines and Ronald Dworkin’s account of rights, Amartya Sen offered a novel argument for a “meta-right”—a meta-right to x is a right to policies p(x) that genuinely aim to have the right to x realizable (Sen 1984). Sen’s meta-right challenges Whitehead’s first principle. When a health inequality is deemed unavoidable, a meta-right to health can still moti- vate both health sciences research and broader social and economic policies that aim toward realizing a right to health. That is why it is at the core of my argument for a human right to health or, more accurately, a meta-right to the meta- capability to be healthy. It is thus noteworthy that Pratt and Hyder present a jus- tice-based argument and an “ethical checklist” for the governance of transnational global health research consortia (GHRCs) (Pratt and Hyder 2016) They present criteria for what global health research should be done as well as who should do what, where, when, how, and so forth. Impor- tantly, these criteria are said to reflect the capabilities approach (CA) to (global) health justice, particularly relying on Jennifer Prah Ruger’s prolific writings on health (care) governance. I am wholly sympathetic with the mission of linking global health research to conceptions of (global) jus- tice, as well as to extending and utilizing the CA for such a mission. However, Pratt and Hyder’s argument is unsatisfac- tory. I focus on three aspects, including their principle of LMICs first and foremost; their priority of worst off in terms of shortfall equity; and their purpose of science. Throughout the article and in the checklist, Pratt and Hyder assert the importance of the GHRCs ensuring that their LMIC research partners are the center of the research endeavor; their voices and those of their community mem- bers must be heard; their priorities should determine the GHRC’s priorities; most of the GHRC’s resources should go to the LMIC researchers and research; and leadership roles should be given to LMIC researchers. Pratt and Hyder do not provide any justification for why research resources should be directed to LMICs in the first place, or for why GHRCs should be initially formed. They point to the CA for such justification, and focus on arguing for put- ting LMIC research(ers) first in various aspects of the func- tioning of the consortia. This is understandable as so much of health equity, human rights, and human-centered devel- opment thinking argues for participation of those affected (i.e., “nothing about us without us”). However, an impor- tant consideration moves against a uniform central role for LMIC researchers, especially codified into a checklist. In global justice philosophy, there is a general acceptance of an ethical duty to correct harms one has caused even if it occurs in other countries (Føllesdal and Pogge 2005). It is also recognized that there is an ethical duty to prevent possible future harms from one’s actions. Correcting past harms and preventing future harms could address significant human Published with license by Taylor & Francis. � 2016 Sridhar Venkatapuram This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/ licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is prop- erly cited. The moral rights of the named author(s) have been asserted. Address correspondence to Sridhar Venkatapuram, King’s College London, Dept SSHM, The Strand, London, WC2R 2LS, United Kingdom. E-mail: sridhar.venkatapuram@kcl.ac.uk 46 ajob The American Journal of Bioethics, 16(10): 46–66, 2016 Copyright © Taylor & Francis Group, LLC ISSN: 1526-5161 print / 1536-0075 online DOI: 10.1080/15265161.2016.1214333 suffering/health inequalities in the world. This could produce duties to conduct global health research and form GHRCs. For actors who appear to have no past or future harm links to people that are suffering in the world, the possible duty to act is based on capacity. (Sen 2009; Singer 2004) One has a moral obligation to consider helping alleviate suffering of individu- als wherever one finds them, in light of and commensurate to one’s capacity to do so. In other words, one ought to help if one can and to the extent one can. According to Pratt and Hyder’s argument, rich country GHRC members may have exceptional capacity but their focus must be on building self- sufficiency of LMIC research partners. Why should improv- ing skills and capacity of LMIC researchers be a stronger moral duty than the duty of helping alleviate suffering of peo- ple commensurate with one’s exceptional capacity? There is no central tenet of the CA that would privilege LMIC researchers in all aspects. Moreover, GHRCs usually involve LMIC researchers across a number of countries. While the authors focus on the dyadic relationships between LMIC and HIC researchers, what are the procedures and principles for adjudicating disagreements between researchers from differ- ent LMICs within the consortia? Pratt and Hyder argue that research priorities of GHRCs should reflect the needs of the worst off in LMICs. Following Ruger, they define the worst off in terms of those who have the greatest shortfall from the world’s highest/best health achievements (Ruger 2010). While it is not clear whether the basic unit is individuals or groups, let’s assume they mean groups (contra a central aspect of the CA). If we take Japan, which has the world’s highest life expectancy as the standard, then those LMICs or groups within LMICs with the greatest shortfall from that Japanese threshold should get priority in research. However, shortfall equity does not necessarily mean that the standard from which one measures has to be the highest achievable outcome in the world. A sufficient or aver- age threshold could also be used. Pratt and Hyder go with the highest outcomes in human populations. Given that there is reasonable disagreement on whether one kind of impairment is worse than other, or whether staying alive is always good, there would have to be a lot of work done before we could rank which LMICs or groups according to their shortfalls. One could imagine that a measurement such as the disability- adjusted life year (DALY) would be very helpful. It may be plausible to identify what diseases/impairments create the greatest shortfall (most DALYs lost) across countries or across groups within countries. Such ranking could then act as a research priority-setting exercise for GHRCs. However, whether using DALYs or another metric, much more reason- ing must be provided for aiming to achieve maximal out- comes. Prioritizing research according to greatest group shortfall presumably is in order to produce research outputs that will have the greatest reductions in health inequalities. Given that the CA was partially born out of the critique of utilitarianism including its central tenet of maximization, it would be inconsistent to aim for maximization in a CA-based argument without giving a clear justification. A third and important component of Pratt and Hyder’s argument is the implicit assertion that the primary aim of GHRCs should be reducing health disparities within and across countries. Given that GHRCs are research coordi- nating entities, the assertion is that the aim of the scientists involved should be to reduce health disparities. Further- more, as the checklist is meant for all GHRCs, all scientists involved in any GHRC must do science that aims to reduce health disparities (to the greatest extent). While we may be able to argue that one primary aim of GHRCs should be to reduce health disparities on various grounds, the move to assert that all the research and scientists involved in GHRCs must have a social mission may be unwise. Recon- ciling the aims and methods of scientific practice with instrumental and social goals such as reducing health dis- parities requires much more careful reasoning than pro- vided here. The authors are especially vulnerable for relying on Ruger’s expositions on governance in order to establish the moral purpose of GHRCs and their scientists. In particu- lar, the debates about the moral purposes of health sciences have recently flourished to the greatest extent in relation to social determinants of health research, or social epidemiol- ogy. At least in the articles the authors cite, Ruger expressly excludes social determinants of health from social policy because “we do not know enough.” Ruger’s argument regarding research is that the focus on health capability motivates claims to research on health care, broadly under- stood to include public health goods and services and equi- table finance. As a result, Ruger’s governance framework is closed off to important ethical arguments for doing science to reduce social inequalities in health while also doing excel- lent science. Without being informed by these debates or much philosophy of science, Pratt and Hyder’s argument and checklist are vulnerable to the charge that the health sci- ences are being infused with social values and likely to result in bad science. & REFERENCES Føllesdal, A., and T. Pogge. 2005. Real world justice: Grounds, princi- ples, human rights, and social institutions. Dordrecht, The Nether- lands: Springer. Pratt, B., and A. A. Hyder. 2016. Governance of transnational global health research consortia and health equity. American Jour- nal of Bioethics 16(10): 29–45. Ruger, J. P. 2010. Health and social justice. Oxford, UK: Oxford Uni- versity Press. Sen, A. 1984. The right not to be hungry. In The right to food, ed. P. Alston and K. Tomasevski, 69–81. Dordrecht, the Netherlands: The Netherlands Human Rights Centre. Sen, A. 2009. The idea of justice. London, UK: Allen Lane. Singer, P. 2004. One world: The ethics of globalization, 2nd ed. New Haven, CT: Yale University Press. Venkatapuram, S. 2011. Health justice. An argument from the capabili- ties approach. Cambridge, UK: Polity Press . Whitehead, M. 1990. The concepts and principles of equity in health, 29. Copenhagen, Denmark: World Health Organization Regional Office for Europe. Transnational Global Health Research Consortia October, Volume 16, Number 10, 2016 ajob 47 
work_ksbqlz3spnakdmx22k74pll7jm	----	ACCESS TO JUSTICE: PURSUIT OF A NOBLE PURPOSE (Schedule subject to change 5-8-13) AND JUSTICE FOR ALL? William S. Richardson School of Law University of Hawaii Friday, June 21, 2013 8:00 - 8:30 a.m. Continental breakfast; registration 8:30 Dean Aviam Soifer and Robert LeClair, co-emcees 8:35 - 8:55 Hon. Mark E. Recktenwald, Chief Justice, Hawaii Supreme Court 8:55 - 9:15 A Commissioner’s Perspective A moderated discussion of current commissioners of the Hawaii Access to Justice Commission who are members of the Hawaii Consortium of Legal Services Providers. Panel: Nalani Fujimori Kaina, L. Dew Kaneshiro, Nanci Kriedman 9:15 - 10:15 “Unconscious Bias:” What It Is and What Its Ramifications Are On Equal Justice for All? Charles R. Lawrence, III, Centennial Professor, William S. Richardson School of Law, University of Hawaii at Manoa 10:15 - 10:30 Break 10:30 - 11:30 Where Is the Money? (Funding challenges for access to justice) Legislative Panel (Moderator: Dean Aviam Soifer) 11:35 - 12:35 Light lunch 12:45 - 2:00 Concurrent Workshops I: 1. Restorative Justice in Civil Cases This session will explore the basic concepts of restorative justice in the civil arena and plan of action. Panel: Susan Serrano, Lorenn Walker 2. Micronesians and Access to Justice This session will examine the issues facing Micronesian immigrants to Hawaii, the obstacles to equal justice, including language and cultural barriers, and plan of action. Panel: Jocelyn Howard, Joakim Peter, Dina Shek 3. “Outside the Box” Thinking: Using Technology and Other Strategies This session will explore strategies for access to justice for the underserved, including how to sell pro bono to volunteer attorneys, how to develop provocative changes, how to help. Panel: Judge Donald Horowitz (ret.), David Reber 4. Access to Justice in the Family Court This session will examine the hot access to justice issues in Family Court and plan of action. Panel: Judge R. Mark Browning, Judge Catherine Remigio, Thomas Crowley 2:00 - 2:15 Break 2:15 - 3:30 Concurrent Workshops II: 5. Delivery of Legal Services through Limited Scope Representation This session will describe the concepts of limited scope representation, ethical standards, and plan of action. Panel: Judge Barbara Richardson, Judge Trudy Senda 6. Mediation Effectiveness: When to Use It and How to Make It Work This session will explore the nuances of mediation and its effectiveness and plan of action. Panel: Judge Joel August (ret.), Judge Ronald Ibarra, Chuck Crumpton 7. Language Access and Your Clients This session will cover issues that commonly arise where clients have limited English proficiency, including client interviewing techniques, how to locate and work with an interpreter, effective solutions, and plan of action. Panel: Justice Sabrina S. McKenna, Christine Kubota, Steven Silver 8. Responses to the Legal Problems Faced by Veterans This session will examine the problems concerning evictions, public housing, homelessness, other hot topics related to the underserved veterans and plan of action. Panel: Judge Edward Kubo, Colin Kippen, Pamela Harms 3:30 - 4:15 Looking to the Future for Justice for All Panel: Hon. Mark E. Recktenwald, Hon. Simeon R. Acoba, Hon. Daniel R. Foley, Jill Hasegawa; (Moderator: Robert LeClair) “Hawai`i Pono`i” (Schedule subject to change 5-8-13) AND JUSTICE FOR ALL? William S. Richardson School of Law University of Hawaii Friday, June 21, 2013 
work_ktbaecn7n5aoldzymert3plyme	----	None 
work_kyxfkcobang3rhfm6lbwnz6pme	----	Real World Justice Real World Justice Author(s): Thomas Pogge Reviewed work(s): Source: The Journal of Ethics, Vol. 9, No. 1/2, Current Debates in Global Justice (2005), pp. 29-53 Published by: Springer Stable URL: http://www.jstor.org/stable/25115814 . Accessed: 25/07/2012 10:00 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . Springer is collaborating with JSTOR to digitize, preserve and extend access to The Journal of Ethics. http://www.jstor.org http://www.jstor.org/action/showPublisher?publisherCode=springer http://www.jstor.org/stable/25115814?origin=JSTOR-pdf http://www.jstor.org/page/info/about/policies/terms.jsp THOMAS POGGE REAL WORLD JUSTICE (Received 14 May 2004; accepted in revised form 3 June 2004) ABSTRACT. Despite a high and growing global average income, billions of human beings are still condemned to lifelong severe poverty with all its attendant evils of low life expectancy, social exclusion, ill health, illiteracy, dependency, and effective enslavement. We citizens of the rich countries are conditioned to think of this problem as an occasion for assistance. Thanks in part to the rationalizations dispensed by our economists, most of us do not realize how deeply we are implicated, through the new global economic order our states have imposed, in this ongoing catastrophe. My sketch of how we are so implicated follows the argument of my book, World Poverty and Human Rights, but takes the form of a response to the book's critics. KEY WORDS: causal explanation, development economics, global resources dividend, harm, human rights, inequality, justice, negative duties, world poverty, WTO Can normative theories about global justice benefit from empirical theories? This is a rhetorical question - no one seriously argues that we should think about global justice in ignorance of the facts. And the question is also a bit tendentious, prodding us philosophers (heads in the clouds or buried in sand) to pay more attention to the real world as presented, most relevantly, by development econo mists. I agree that many philosophers working on global justice know too little about the real world, but I also believe that we should absorb the theories delivered by economists with a great deal of caution. A prominent concept in economics is that of homo eco nomicus, an individual who, single-mindedly and rationally, seeks optimally to satisfy his preferences. Such imaginary creatures are not good approximations of persons in the real world. But, as various studies have shown, they do approximate pretty well the kind of people we find in business schools and economics depart ments - people who cannot comprehend how it could possibly make sense to tip a waiter in a place one does not intend to revisit. The Journal of Ethics (2005) 9: 29-53 ? Springer 2005 30 THOMAS POGGE Insofar as they approximate the ideal type homo economicus, the work economists do - what they study and how they study it - will be driven by their career goals. These goals will rarely be served by propagating falsehoods and fallacies. But they will be served by propagating truths that are supportive, in preference to truths that are subversive, of the position and policies of those in power. While economists like to present themselves as disinterested scientists, they function today more typically as ideologists for our political and economic "elites" - much like most theologians did in an earlier age. For a nice illustration of this, just look at The Economist (March 11, 2004), which gives rather absurd arguments for the claims that global inequality is not increasing and that, in any case, global inequality and poverty are "not a question of justice." Or look at the work of development economists, from Amartya Sen to the Chicago School, which is overwhelmingly focused on relating the persistence of severe poverty to local causes - bad governance, sexist culture, geography, and much else - while leaving unstudied the huge impact of the global economic order on the incidence of poverty worldwide. Unfortu nately, in this domain we cannot just learn and benefit from the theories of the experts. We must think for ourselves and, as best we can, become experts. With this preamble, let me proceed to lay out the empirically informed view on global justice I have been defending. In an attempt to render this exercise interesting to those familiar with my work, I present my view in the form of a response to some of its critics. 1. The Central Claim In a recent book,1 I have claimed that we - the more advantaged citizens of the affluent countries - are actively responsible for most of the life-threatening poverty in the world. The book focuses on the 15 years since the end of the Cold War. In this period, billions of people have suffered greatly from poverty-related causes: from hunger and malnutrition, from child labor and trafficking, from lack of access to basic health care and safe drinking water, from lack of 1 Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsi bilities and Reforms (Cambridge: Polity Press, 2002). REAL WORLD JUSTICE 31 shelter, basic sanitation, electricity, and elementary education.2 Some 18 million people have died prematurely each year from poverty-related causes, accounting for fully one third of all human deaths. This 15-year death toll of 270 million is considerably larger than the 200-million death toll from all the wars, civil wars, geno cides and other government repression of the entire 20th century combined.3 2 Among 6133 million human beings (2001), about 799 million are undernour ished [UNDP, Human Development Report 2003 (New York: Oxford University Press, 2003), p. 87]; 880 million have no access to basic medical care [UNDP, Human Development Report 1999 (New York: Oxford University Press, 1999), p. 22]; 1000 million lack access to safe drinking water (UNDP, Human Development Report 2003, p. 9); 1000 million lack adequate shelter and 2000 million have no electricity [UNDP Human Development Report 1998 (New York, Oxford University Press, 1998), p. 49]; 2400 million lack basic sanitation (UNDP: Human Development Report 2003, p. 9); and 876 million adults are illiterate (UNDP, Human Development Report 2003, p. 6). Some 250 million children (aged 5-14) do wage work outside their family, 8.4 million of them in the "unconditionally worst" forms of child labor, "defined as slavery, trafficking, debt bondage and other forms of forced labor, forced recruitment of children for use in armed conflict, prostitution and pornography, and illicit activities" [International Labour Organisation, A Future without Child Labour (Geneva: International Labor Office, 2002, www.ilo.org/public/english/standards/ decl/publ/reports/report3.htm)]. Females and people of color are heavily overrep resented in all these horrifying statistics (UNDP, Human Development Report 2003, pp. 310-330). 3 This includes World War Two (1939-45: 50 million), repression and misman agement under Mao (1949-75: 46 million), Stalin's repression (1924-53: 20 million), World War One (1914-18: 16 million), the Russian Civil War (1917-22: 9 million), the devastation visited on Congo Free State (1886-1908: 5 million), the post-war expulsion of Germans from Eastern Europe (1945-47: 3 million), KMT repression (1928-37: 3 million), the Korean War (1950-53: 2.8 million), the Vietnam War (1960-75: 2.5 million), North Korean repression (since 1948: 2 million), the Biafra/ Nigeria civil war (1966-70: 2 million), Pakistani repression in Bangla Desh (1971: 2 million), the Cambodia genocide (1975-78: 1.6 million), the civil war in the Sudan (since 1983: 1.5 million), the recent wars in the Congo (since 1998: 1.5 million), the Afghan wars (1979-2001: 1.4 million), the wars and civil wars in Rwanda and Burundi (1959-95: 1.2 million), the Armenian Genocide (1915-23: 1 million), the Mexican Revolution (1910-20: 1 million), the sanctions against Iraq (1990-2003: 1 million), the civil wars in Somalia (since 1991: 1 million), the Iran/Iraq war (1980 88: 0.9m), the partition of India (1947: 0.5 million), Suharto's coup in Indonesia (1965-66: 0.5 million), the civil war in Angola (1975-95: 0.5 million) and 259 other mega-death events of violence and repression. See http://users.erols.com/mwhite28/ war-1900.htm for the figures and the relevant literature supporting them. 32 THOMAS POGGE Some critics maintain that these problems are peanuts compared to the bad old days when a large majority of humankind was poor.4 In 1820, they tell us, 75% of humankind were living below the World Bank's "SI/day" poverty line, while today this percentage is only 20%. (This poverty line is defined in terms of the purchasing power that a monthly income of $32.74 had in the year 1993.5 In 2004, this line corresponds to the purchasing power of $500 per year in the United States.6) According to these critics, what is remarkable about world poverty is how very little of it there still is today. I disagree. For one thing, it is quite inappropriate to use per centages for the comparison. The killing of a given number of people does not become morally less troubling the more world population increases. What matters morally is the number of people in extreme poverty. In 1820, this number was about 750 million (75% of about one billion).7 In 1998, this number was nearly 1200 million.8 Since 1820, the number of extremely poor people has thus increased by over 50%, while the number of people living below the World Bank's more reasonable "$2/day" poverty line has tripled.9 Moreover, severe poverty was quite hard to avoid in 1820, because even the average purchasing power of incomes worldwide barely reached the World Bank's higher poverty line. Today, by contrast, the average pur chasing power of incomes worldwide is well over 10 times that level, and severe poverty is entirely avoidable. We are not avoiding it only because of the fantastic increase in inequality.10 4 Notably Gerald Gaus, "Radio Interview on Pogge's World Poverty and Human Rights" on Ideas and Issues (WETS-FM), 19 January 2003 (www.etsu.edu/philos/ radio/gaus-wphr.htm); and Mathias Risse, "Do We Harm the Global Poor?," pre sentation at Author Meets Critics session at the Eastern Division Meeting of the American Philosophical Association, 30 December 2003 (http://ksghome. harvard.edu/~.mrisse.academic.ksg/papers_Philosophy.htm). 5 Shaohua Chen and Martin Ravallion: "How Did the World's Poorest Fare in the 1990s?," Review of Income and Wealth 47 (2001), p. 285. 6 See www.bls.gov/cpi/home.htm. 7 See www.census.gov/ipc/www/worldhis.html. 8 Chen and Ravallion: "How Did the World's Poorest Fare in the 1990s?" p. 290; cf. www.worldbank.org/research/povmonitor for later figures. 9 To 2812 million (Chen and Ravallion, "How Did the World's Poorest Fare in the 1990s?," p. 290); see www.worldbank.org/research/povmonitor. 10 The ratio in average income between the fifth of the world's people living in the highest-income countries and the fifth living in the lowest income countries "was 74 REAL WORLD JUSTICE 33 My main claim is then that, by shaping and enforcing the social conditions that foreseeably and avoidably cause the monumental suffering of global poverty, we are harming the global poor - or, to put it more descriptively, we are active participants in the largest, though not the gravest, crime against humanity ever committed. Adolf Hitler and Joseph Stalin were vastly more evil than our political leaders, but in terms of killing and harming people they never came anywhere near causing 18 million deaths per year. Most of my readers believe that this claim is obviously mistaken, if not preposterous. Perhaps for this reason, they pay little attention to the structure and details of the case I am building. Instead, they present various general conjectures about what my mistake may be. They suggest that I am making conceptual mistakes by re-labeling as harm what are really failures to aid and protect.11 They suggest that I am factually wrong about the causal explanation of severe poverty or confused about the counterfactuals to which I compare the world as it is.12 They suggest that I am morally wrong by presenting as min imal certain moral requirements that are actually excessively demanding.13 These criticisms are worth addressing, and I will to 1 in 1997, up from 60 to 1 in 1990 and 30 to 1 in 1960. [Earlier] the income gap between the top and bottom countries increased from 3 to 1 in 1820 to 7 to 1 in 1870 to 11 to 1 in 1913" (UNDP: Human Development Report 1999, p. 3; see also p. 38). The trend is no more encouraging when one compares the incomes of households worldwide via purchasing power parities: Over a recent five-year period, "world inequality has increased ... from a Gini of 62.8 in 1988 to 66.0 in 1993. This rep resents an increase of 0.6 Gini points per year. This is a very fast increase, faster than the increase experienced by the United States and United Kingdom in the decade of the 1980's. ... The bottom 5% of the world grew poorer, as their real incomes decreased between 1988 and 1993 by 25%, while the richest quintile grew richer. It gained 12% in real terms, that is it grew more than twice as much as mean world income (5.7%)" [Branko Milanovic, "True World Income Distribution, 1988 and 1993: First Calculation Based on Household Surveys Alone," The Economic Journal 112 (2002), p. 88, see www.blackwellpublishers.co.uk/specialarticles/ecoj50673 pdf]. 11 Gaus: "Radio Interview on Pogge's World Poverty and Human Rights;" Alan Patten, "Remarks on Pogge's World Poverty and Human Rights" at Author Meets Critics session at the Eastern Division Meeting of the American Philosophical Association, 30 December 2003. 12 Gaus, "Radio Interview on Pogge's World Poverty and Human Rights"; Debra Satz, "Comments on Pogge's World Poverty and Human Rights" at Author Meets Critics session at the Eastern Division Meeting of the American Philosophical Association, 30 December 2003. 13 Patten, "Remarks on Pogge's World Poverty and Human Rights" 34 THOMAS POGGE address many of them in the context of explaining the main lines of argument in the book. 2. Positive Duties Before doing this, I should dispose of one misunderstanding. My book seeks to show how existing world poverty manifests a violation of our negative duties, our duties not to harm. To show this, I leave positive duties aside. I do not assert that there are no positive duties, or that such duties are feeble. Rather, I avoid claims about positive duties so as to make clear that my case does not depend on such claims. My focus is solely on duties not to harm as well as on duties to avert harms that one's own past conduct may cause in the future. Duties of this last kind - to avert harms that one's past conduct may cause in the future - do not fit well into the conventional dichotomy of positive and negative duties. They are positive insofar as they require the agent to do something and also negative insofar as this requirement is continuous with the duty to avoid causing harm to others. One might call them intermediate duties, in recognition also of their intermediate stringency. My focus is exclusively on negative and intermediate duties, and thus on harm we are materially involved in causing rather than on all the harm people suffer. This focus is motivated by the belief that negative and interme diate moral duties are more stringent than positive ones. For exam ple, the duty not to assault people is more stringent than the duty to prevent such assaults by others. And, having assaulted another, the attacker has more reason to ensure that his victim's injuries are treated than a bystander would. Suggesting these views in the book, I do assume something about positive duties after all. But this is meant to be a very weak assumption, accepted not merely by libertarians but by pretty much all, except act-consequentialists. I do not assume that any negative or intermediate duty is more stringent than all positive duties. Rather, I assume that negative and intermediate duties are more stringent than positive duties when what is at stake for all concerned is held constant}4 I go to some length to stress that I do not believe the absurdity some critics15 have attributed to me: namely that any negative duty, including the duty to refrain from doing some 14 Pogge, World Poverty and Human Rights, p. 132. 15Notably Satz, "Comments on Pogge's World Poverty and Human Rights" REAL WORLD JUSTICE 3 5 small harm, is more stringent than every positive duty, including the duty to rescue thousands of children.16 Now if negative duties (not to harm) and intermediate duties (to avert harms that one's past conduct may cause in the future) are indeed more stringent than positive duties, then it could be mis leading to appeal only to positive duties when duties of the other two kinds are also in play. Consider a corporation polluting a river with dire consequences for the health of many. One might ask this cor poration, along with other businesses in the region, to help reduce that problem through donations toward purchasing pollution control equipment and toward paying for medical treatment of those sick ened by the pollution. This sort of request may be politically opportune. But it also misleadingly suggests that the polluting cor poration is morally in the same boat as the other potential donors: helping out for a good cause, pursuant to an imperfect positive duty of occasional charity. In fact, these two points are related. What makes such a plea in the positive-duty idiom politically opportune (when it is so) typically is precisely the misleading suggestion that its addressees have no negative and intermediate duties to forestall the harm they are being asked to help mitigate. One may well think that being misleading is a very small price to pay for political success against the catastrophic problem of world poverty. But, for better or worse, it does not seem that we are actually facing this choice. The appeal to positive duties has been well pre sented by Peter Singer, Henry Shue, Peter Unger, and others.17 If citizens in the affluent countries were minimally decent and humane, they would respond to these appeals and would do their bit to eradicate world poverty. If they did this, my argument would be of much less interest and importance, and I might not see the need to elaborate it at such length. As it is, I see it as my best chance to 16 I repeatedly warn against this misunderstanding in formulations such as this: "I hope I have made clear enough that this is not presented as a strict, or lexical, hierarchy: It is generally acknowledged that a higher moral reason can be out weighed by a lower, if more is at stake in the latter" (Pogge, World Poverty and Human Rights, p. 240, note 207; see also p. 132 and p. 241, note 216). 17 Peter Singer, "Famine, Affluence and Morality," Philosophy and Public Affairs 1 (1972), pp. 229-243; Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1980); and Peter Unger, Living High and Letting Die: Our Illusion of Innocence (Oxford, Oxford University Press, 1999). 36 THOMAS POGGE contribute to ending or reducing the immense deprivations we affluent are now inflicting upon the global poor. I also see my argument as essential to an accurate portrayal of how we affluent citizens of the rich countries are morally related to those deprivations. Yes, we are able to alleviate them, and, seeing how cheaply this can be done, we surely have positive duties to do so. But because we are also implicated, with many others, in shaping and enforcing the social institutions that produce these deprivations, and are moreover benefiting from the enormous inequalities these unjust institutions reproduce, we have much more stringent duties to seek to reform these social institutions and to do our fair share toward mitigating the harms they cause. 3. An Ecumenical Approach to Demonstrating Harm Let us now look at the arguments of the book. The case I seek to build is broadly ecumenical. I am trying to convince not merely the adherents of some particular moral conception or theory - Lockeans or Rawlsians or libertarians or communitarians, for example. Rather, I am trying to convince the adherents of all the main views now alive in Western political thought. This ambition makes the task much harder, because I must defend my conclusion on multiple fronts, fielding parallel arguments that address and appeal to diverse and often mutually incompatible moral conceptions and beliefs. This ecumenical strategy has been confusing to some who com plain that I am unclear and inconsistent about the baseline relative to which the global poor are supposedly harmed by existing institutional arrangements.18 They are right that I do not provide a single con sistent such baseline. But they are wrong to see this as a flaw. If I want to convince readers with diverse ideas about morality and jus tice, then I must support my conclusions with diverse arguments. And these may have to appeal to diverse baselines. A state-of-nature baseline is relevant to a reader with Lockean or Nozickian views. But a Rawlsian will reject such a baseline, insisting that the existing dis tributional profile should be compared to the profiles achievable under alternative feasible institutional arrangements. To satisfy 18 Notably Satz, "Comments on Pogge's World Poverty and Human Rights," and Patten, "Remarks on Pogge's World Poverty and Human Rights." REAL WORLD JUSTICE 37 readers of both kinds, I need to give different arguments to them, each with a different baseline. This is more work, to be sure. But the pay-off is that my case cannot justifiably be dismissed as dependent on some partisan moral premises or theory which readers may feel free to reject. The ecumenical strategy is broadest and most explicit in the final chapter, which argues for a global resources dividend (GRD). My first step there is to show that our world is pervaded by what, following Tom Nagel,19 I call "radical inequality": (1) The worse-off are very badly off in absolute terms. (2) They are also very badly off in relative terms - very much worse off than many others. (3) The inequality is impervious: It is difficult or impossible for the worse-off substantially to improve their lot; and most of the better-off never experience life at the bottom for even a few months and have no vivid idea of what it is like to live in that way. (4) The inequality is pervasive: It concerns not merely some aspects of life, such as the climate or access to natural beauty or high culture, but most aspects or all. (5) The inequality is avoidable: The better-off can improve the cir cumstances of the worse-off without becoming badly off them selves. I go on to assume that most of my readers demand more than the fact of radical inequality between us and the global poor as proof that we are harming them. I also assume that different readers differ on the question of what is missing. To satisfy more readers, I present in parallel three second steps of the argument, each of which shows in a different way that the existing radical inequality involves us in harming the global poor. All three strands of the argument lead to the conclusion that today's massive and severe poverty manifests a vio lation by the affluent of their negative duties: an immense crime in which we affluent citizens of the rich countries (as well as the political and economic "elites" of most poor countries) are implicated. 19 Thomas Nagel, "Poverty and Food: Why Charity Is Not Enough," in Peter Brown and Henry Shue (eds.), Food Policy: The Responsibility of the United States in the Life and Death Choices (New York: The Free Press, 1977). 38 THOMAS POGGE 4. Engaging Historical Conceptions of Social Justice In one strand of the argument I invoke the effects of a common and violent history. The present world is characterized not only by radical inequality as defined, but also by the fact that "the social starting positions of the worse-off and the better-off have emerged from a single historical process that was pervaded by massive grievous wrongs."20 I invoke these historical facts specifically for readers who believe that it matters morally how radical inequality has evolved. Most of the existing international inequality in standards of living was built up in the colonial period when today's affluent countries ruled today's poor regions of the world: trading their people like cattle, destroying their political institutions and cultures, and taking their natural resources. In 1960, when the colonizers finally left, taking what they could and destroying much else, the inequality in per capita income between Europe and Africa had grown to 30:1, and vast inequalities existed also in education, health-care, infrastructure, and legal and political organization. These inequalities greatly dis advantaged Africans in their dealings with governments and corpo rations of the affluent countries. This disadvantage helps explain why the Europe/Africa inequality in per capita income has since risen to 40:1. But even if per capita income had, since 1960, increased a full percentage point more each year in Africa than in Europe, this inequality would still be 20:1 today and would be fully erased only early in the 24th century. Readers attracted to historical-entitlement conceptions of justice disagree about the conditions an historical process must meet in order for it to justify gross inequalities in life chances. On this point, I can once more afford to be ecumenical. The relevant historical crimes were so horrendous, so diverse, and so consequential that no his torical-entitlement conception could credibly support the conclusion that our common history was sufficiently benign to justify even the radical inequalities in starting positions we are witnessing today. In short, then, upholding a radical inequality counts as harming the worse-off when the historical path on which this inequality arose is pervaded by grievous wrongs. "A morally deeply tarnished history must not be allowed to result in radical inequality."21 This is the moral rationale behind Abraham Lincoln's 40-acres-and-a-mule 20 Pogge, World Poverty and Human Rights, p. 203. 21 Pogge, World Poverty and Human Rights, p. 203. real world justice 39 promise of 1863, which of course was quickly rescinded. And it is the rationale for saying that we are not entitled to the huge advantages we enjoy from birth over the global poor, given how these inequalities have been built up. Some critics may seem to address this strand of the argument when they point out that the radical inequality between Europe and Africa might have come about even without colonialism.22 Perhaps Europe could have "taken-off ' even without slavery and stolen raw materials, and perhaps the resulting inequality would then have been equally great. In the absence of conclusive proof that, without the horrors of European conquest, severe poverty worldwide would be substantially less today, Risse suggests, we are entitled to keep and defend what we possess, even at the cost of millions of deaths each year (I wonder if he would make the same argument against the 40 acres-and-a-mule proposal). As a response to the first strand of the argument, this complaint is irrelevant. The first strand addresses readers who believe that the actual history is relevant. These readers will say: "Yes, if things had transpired as in Risse's hypothetical, then the citizens of the affluent countries might not, by upholding the radical inequality, be harming the global poor. But this has no bearing on whether such upholding of radical inequality constitutes harm in the actual world with its actual history." Still, Risse's complaint resonates with other readers who believe that it is permissible to uphold an economic distribution if merely it could have come about on a morally acceptable path. It is such readers that the second strand of my argument addresses. To be sure, any distribution, however skewed, could have been the outcome of a sequence of voluntary bets or gambles. Appeal to such a fictional history would "justify" anything and would thus be wholly implau sible. John Locke does much better, holding that a fictional history can justify the status quo only if the changes in holdings and social rules it involves are ones that all participants could have rationally agreed to. He also holds that in a state of nature persons would be entitled to a proportional share of the world's natural resources. He thus makes the justice of any institutional order depend on whether 22 Notably Risse, "Do We Harm the Global Poor?" 40 THOMAS POGGE the worst-off under it are at least as well off as people would be in a Lockean state of nature with a proportional resource share.23 Locke held, implausibly, that this condition was fulfilled in his time, claiming that "a King of a large fruitful territory [in the Americas] feeds, lodges, and is clad worse than a day Laborer in England."24 I argue that this condition is not fulfilled for the global poor today who, living below even the day laborers in Locke's England, are coercively denied "enough and as good"25 of the world's natural resources without having access to an equivalent substitute. Readers inclined to a Lockean conception disagree about the rel evant state-of-nature baseline that determines how bad the worst so cial starting positions imposed by a just social order may be. On this question I can once more be ecumenical. However one may want to imagine a state of nature among human beings on this planet, one could not realistically conceive it as producing an enduring poverty death toll of 18 million annually. Only a thoroughly organized state of civilization can sustain horrendous suffering on such a massive scale. Catering to Lockeans, the second strand of my argument invokes the uncompensated exclusion of the worse-off from a proportional share of global resources: The present world is characterized not merely by radical inequality as defined, but also by the fact that "the better-off enjoy significant advantages in the use of a single natural resource base from whose benefits the worse-off are largely, and without compensation, excluded."26 The better-off- we - are harming the worse-off insofar as the radical inequality we uphold excludes the global poor from a proportional share of the world's natural resources and any equivalent substitute. The point I was making about Locke is quite similar to one Debra Satz puts forth in a tone of criticism. For Locke, she says, "property rights, however acquired, do not prevail in the face of desperate need" because "everyone has an original pre-appropria tion claim-right to an adequate subsistence from the resources of the world."27 This is correct, although the poor can really have a 23 See Pogge, World Poverty and Human Rights, pp. 16, 137-139, and 202-203, for a fuller reading of Locke's argument. 24John Locke, "An Essay Concerning the True Original, Extent, and End of Civil Government" [1689], in Peter Laslett (ed.), John Locke: Two Treatises of Government (Cambridge: Cambridge University Press, 1960), ?41, see ?37. 25 Locke, Two Treatises of Government, ?27, ?33. 26 Pogge, World Poverty and Human Rights, p. 202. 27 Satz, "Comments on Pogge's World Poverty and Human Rights" p. 16. REAL WORLD JUSTICE 41 claim only to a proportional resources share, not to adequate subsistence, because there may simply not be enough to go around. But why does Satz speak in this context of a "positive 'property right' of the needy in the means of subsistence"?28 What are po sitive as opposed to negative property rights? Does Satz want to say that we affluent have merely a positive duty toward the needy? This would suggest that our property rights do prevail after all - that our assets are ours though we ought to give away some. But Satz correctly presents Locke as rejecting this picture: We affluent have no rights to property, however acquired, in the face of the excluded. Rather, they have a right to what we hold. When we prevent them from exercising this right - when we deprive them of what is justly theirs - then we violate this original right of the poor and we harm them. In this way it is a violation of a negative duty to deprive others of "enough and as good" - either through unilateral appropriations or through institutional arrangements such as a radically inegalitarian property regime.29 Let me sum up the first two strands of the argument. These strands address readers for whom the justice of the present eco nomic distribution or of present economic arrangements turns on their actual or imaginable history. I conclude that such conceptions of justice cannot justify the status quo. One may try to justify the coercively upheld radical inequality today by appeal to the his torical process that actually led up to it. But this appeal fails because the actual historical process is massively pervaded by the most grievous wrongs. Alternatively, one may try to justify this coercively upheld radical inequality by appeal to some morally acceptable fictional historical process that might have led to it. On Locke's permissive version of this account, some small elite may appropriate all, or almost all, of the huge cooperative surplus produced by modern social organization. But such an elite must not enlarge its share even further by reducing the poor below the state-of-nature baseline so that this elite's share of the cooperative surplus is actually more than 100% and the share of the poor correspondingly less than zero. As it is, the citizens and govern ments of the affluent states are violating this negative duty when 28 Satz, "Comments on Pogge's World Poverty and Human Rights" p. 16. 29 This is argued at length in Pogge, World Poverty and Human Rights, Chapter 5. 42 THOMAS POGGE we, in collaboration with the ruling cliques of many poor coun tries, coercively exclude the global poor from a proportional resource share and any equivalent substitute. 5. Engaging Broadly Consequentialist Conceptions of Social Justice Most contemporary theorists of justice endorse neither of these his torical views. Instead, they hold that an economic order and the economic distribution it shapes should be assessed by its foreseeable effects against the background of its feasible alternatives. Thus Rawls considers a domestic economic order to be just if it produces fair equality of opportunity across social classes and no feasible alter native to it would afford better prospects to the least advantaged. The third strand of my argument addresses such broadly conse quentialist conceptions which invoke the effects of shared social institutions. The present world is characterized not only by radical inequality as defined, but also by the following facts: There is a shared institutional order that is shaped by the better-off and imposed on the worse-off. This institutional order is implicated in the reproduction of radical inequality in that there is a feasible institutional alternative under which so severe and extensive poverty would not persist. The radical inequality cannot be traced to extra-social factors (such as genetic handicaps or natural disasters) which, as such, affect different human beings differentially.30 When these further facts obtain, so I claim, then the better-off - we - are harming the worse-off insofar as we are upholding a shared institutional order that is unjust by foreseeably and avoidably (re)producing radical inequality. Now there are many different such broadly consequentialist con ceptions of justice which judge an institutional order by comparing its distributional effects to those its feasible alternatives would have. These conceptions differ along three dimensions. They differ in how they characterize the relevant affected parties (groups, persons, time slices of persons, etc.). They differ about the metric for assessing relevant effects (social primary goods, capabilities, welfare, etc.). And they differ about how to aggregate relevant effects across affected parties. Once again, my response to such diversity is ecumenical. I am trying to specify very minimal conditions of justice that are widely 30 Pogge, World Poverty and Human Rights, p. 199. REAL WORLD JUSTICE 43 accepted. Most broadly consequentialist theorists agree that a na tional economic order is unjust when it leaves social and economic human rights unfulfilled on a massive scale even while there is a feasible alternative order under which these human rights would be much better realized. Most theorists would demand more, of course. But I need no more for my purpose, because our global economic order does not even meet the very weak requirements that form the common core of the various broadly consequentialist theories of economic justice defended today. Keeping in mind this background as well as the remarks on positive duties in Section 2, we can now address various misreadings of my account of human rights. I understand human rights, within the context of broadly consequentialist conceptions of justice, primarily as weighty moral claims on social institutions. An institutional order is human-rights violating when it foreseeably gives rise to greater insecurity in access to the objects of human rights (physical integrity, freedom of movement, adequate nutrition, etc.) than would be rea sonably avoidable through an alternative feasible institutional design. Moral claims on social institutions are also, indirectly, moral claims against those who participate in designing and upholding these social institutions: Such agents, too, are violating human rights by imposing an institutional order under which access to the objects of human rights is foreseeably and avoidably insecure for some or all partici pants. I hold that most of the avoidable global underfulfillment of human rights today can be traced back to the design of the global institutional order: Had the avoidance of severe poverty been a pri ority in the redesign this order has undergone in the early 1990's, then most of that current global underfulfillment of human rights could have been averted. Can an individual or collective agent violate human rights directly, for example through torture - irrespective of whether there is an institutional order and, if so, of whether this order is just or unjust? I have been reluctant to answer this question affirmatively because I believe that the common use of the expression "human rights" is restricted to crimes that are in some sense official in character. I have been criticized for this reluctance on the ground that it is surely no worse to participate in the imposition of an institutional scheme under which people get tor tured than to torture people directly (holding constant what is at stake for the agents and their victims). I completely agree with this substantive point. My reluctance was based not on any 44 THOMAS POGGE comparative moral judgment, but on common usage. Still, I do not object to calling ordinary crimes of torture, rape, etc., human rights violations. In any case, this terminological issue is irrelevant to my work, which is focused specifically on human rights viola tions committed by means of imposing institutional arrangements that foreseeably produce greater serious insecurity in access to the objects of human rights than would be reasonably avoidable. Can an individual or collective agent violate human rights pas sively, by failing to protect people threatened by violence or starva tion even when this could be done safely, easily, and at low cost? Human rights are in principle enforceable, so the answer can be af firmative only in cases where it is morally permissible for some other agent to use some coercive means to force the relevant individual or collective to protect the people under threat. In addition, the right to be protected must be general and important enough to qualify as (part of) a human right. Finally, there are two terminological issues to consider. As pointed out, I have been reluctant to apply the lan guage of human rights to ordinary crimes such as a private citizen's refusal to toss a life preserver to a drowning swimmer. Moreover, with regard to passive failures to protect that are official in character, I have proposed that we classify them as official disrespect for human rights, but not as human rights violations, in order to recognize the moral significance of the passive/active distinction. I adduce three reasons in support of my plea. One is common usage. The notion of a human rights violation has an active ring and is thus not a fitting label for someone's failure to protect others when she had no role in causing their urgent need for such protection. It might seem desirable to stretch common usage so as to include certain failures to protect under this notion. But such a move might well be counterproductive with respect to that large number of human beings who - though they know about hunger and torture abroad and do not doubt that, with a bit of research, they could contribute to an effective protection effort - never do anything toward protecting foreigners in great distress. Moreover, in the world as it is, we can make a more forceful appeal to these people without stretching language. Conceding that they are not human rights violators for passively ignoring even the most vital needs of others, we can still point out that nearly all of them are human rights violators through their uncompensated participation in the imposition of a global institutional order that, foreseeably and REAL WORLD JUSTICE 45 avoidably, reproduces a huge excess in human rights underfulfill ment. In our world, most of the avoidable underfulfillment of human rights would be avoided if the global institutional order imposed by the affluent countries (in collaboration with many political elites in the developing world) were not so grievously unjust. It is hard to deny that reasonably privileged citizens of the rich democracies share some responsibility for the global institutional order which their governments are shaping and upholding. But one can question whether this order is human-rights violating. If it is not, then participation in its imposition cannot constitute a human-rights violation either. I believe, and will argue in the next section, that the present global institutional order is human-rights violating in that the underfulfill ment of human rights is foreseeably much greater under this order than it would be under various feasible modifications thereof. If this is true, then it follows that the existing global order is unjust by the lights of all broadly consequentialist conceptions of social justice that recognize human rights as minimal constraints on the justice of social institutions: this order is unjust by foreseeably giving rise to a greater underfulfillment of human rights than would be reasonably avoid able. Uncompensated participation in the imposition of this order can then be said to be harming those whose human rights remain unfulfilled by helping to impose upon them unjust social institutions that contribute to their predicament. In most ordinary contexts, the word "harm" is understood in an historical sense - either diachronically (someone is harmed when she is rendered worse-off than she was at some earlier time) or subjunctively (someone is harmed when she is rendered worse-off than she would have been had some earlier arrangements contin ued undisturbed). As we have seen, the second strand of my argument, operating on Lockean terrain, conceives harm in this ordinary way and then conceives justice in terms of harm: Pre vailing economic arrangements and the present economic distri bution are shown to be unjust in virtue of the fact that they harm many by forcing them below any credible state-of-nature baseline. It is worth stressing, then, that the third strand of my argument, catering to broadly consequentialist conceptions of social justice, does not, pace Satz,31 conceive justice and injustice in terms of an independently specified notion of harm. Rather, this third strand 31 Satz, "Comments on Pogge's World Poverty and Human Rights." 46 THOMAS POGGE relates the concepts of harm and justice in the opposite way, conceiving harm in terms of an independently specified conception of social justice. On my ecumenical response to broadly conse quentialist conceptions of social justice, we are harming the global poor if and insofar as we collaborate in imposing unjust social institutions upon them; and social institutions are certainly unjust if and insofar as they foreseeably give rise to large-scale avoidable underfulfillment of human rights. Moreover, pace Patten,32 this third strand of my argument is not addressed to libertarians, who indeed reject any non-historical, broadly consequentialist assessment of social institutions. Libertari ans are addressed by the first and, to some extent, by the second strand. To be sure, the third strand, like the two others, is meant to support the conclusion that the immense catastrophe of world pov erty manifests not merely the affluents' failure to fulfill their positive duties, but also, and more importantly, their massive violation of their negative duties. But the moral significance of this conclusion can be appreciated far beyond the confines of the libertarian school. Nearly everyone in the affluent countries would agree that our moral duty not to contribute to the imposition of conditions of extreme poverty on people and our moral duty to help protect people from harm in whose production we are implicated in this way are each more stringent than our moral duty to help protect people from harm in whose production we are not materially involved.33 As I try to implement the third strand of my argument, specifically for a human right to basic necessities, it involves three main tasks. I seek to show that it is, among broadly consequentialist conceptions, a minimal and widely acceptable demand of justice on all national institutional schemes that these must be designed to avoid life threatening poverty insofar as this is reasonably possible. I then seek to show that this demand of justice applies not merely to any domestic institutional arrangements, but to the global order as well. And I must then show, thirdly, that there are feasible alternatives to the existing global institutional order under which life-threatening poverty would be wholly or largely avoided. 32 Patten, "Remarks on Pogge's World Poverty and Human Rights" 33 These comparisons, once again, hold constant the cost or opportunity cost of the required conduct to the duty bearers as well as the reduction in harm it brings to the beneficiaries. REAL WORLD JUSTICE 47 Task one is easy. There simply is no broadly consequentialist conception of social justice in the field that purports to justify, within one national society, radical inequality of the kind the world at large displays today. To be sure, Patten is right to point out that some libertarians (Robert Nozick) do purport to justify such extreme inequalities. But they do this by appeal to historical conceptions of social justice; and I have sketched my response to such justifications in the preceding section. Task two involves a highly complex argument to which I cannot possibly do justice here.34 So let me here concentrate on Task three, on which my critics have focused most of their attention. 6. The Causal Role of the Global Institutional Order in the Reproduction of Severe Poverty Many critics believe that I see the global institutional order as the main cause of world poverty. And they respond that, in light of the incompetence, corruption, and oppression prevalent in so many poor countries, this claim is simply not credible or, at the very least, unsupported by empirical evidence. They are wrong on both counts. Let us begin with a quick general reflection on causes. In the simplest cases, multiple causes add up to produce an effect. Thus the smoke in a bar is the sum of the smoke released by all the smokers. In the case of world poverty, however, the relation among causes is more complex in at least two ways. One complexity is that the dif ferent causes of poverty, such as global institutional factors and national policies, influence one another's effects.35 How harmful corrupt leaders in poor countries are, for example, is strongly influ enced by whether the global order recognizes such leaders, on the basis of effective power alone, as entitled to sell us their country's resources, to borrow in its name, and to use the proceeds to buy the means of internal repression. Given this special complexity, it is not correct to identify my assertion that most severe poverty worldwide was and is avoidable through global institutional reform with the claim that the existing global institutional order is the main cause of world poverty. My 34 See Pogge, World Poverty and Human Rights, Chapter 4, and Thomas W. Pogge, "The Incoherence between Rawls's Theories of Justice," Fordham Law Review 72(5) (2004), pp. 1739-1759. 35 Discussion of the other complexity begins six paragraphs down. 48 THOMAS POGGE assertion is perfectly compatible with the claim (which I also endorse) that most severe poverty worldwide was and is avoidable through better national policies and better social institutions in the poor countries. To put it simplistically, the interaction between the two sets of causal factors is not so much additive as multiplicative. The worse each set of factors is, the more it also aggravates the marginal harmful impact of the other. But if, as development economists like to stress, most severe poverty worldwide was and is avoidable through better national policies and better social institutions in the poor countries, does this not show that our global institutional order is morally acceptable as it is? Am I not, as Patten put it,36 demanding too much from ourselves, given that the ruling elites in the poor countries could also eradicate much poverty? Now it is true that many of these elites are incompetent, corrupt, and oppressive. Failing, as badly as we are and often worse, to honor their negative duties not to harm, they are indeed responsible for most severe poverty worldwide. But this is quite compatible with the advantaged citizens in the rich countries also being responsible for most severe poverty worldwide. For it is equally true that most such poverty was and is avoidable through a better global institutional order. Given this basic symmetry, we cannot accept Patten's judgment that we should not be required to stop our contribution until they are ready to stop theirs. If this were right, then it would be permissible for two parties together to bring about as much harm as they like, each of them pointing out that it has no obligation to stop so long as the other continues. The situation is roughly analogous to that of two upstream fac tories releasing chemicals into a river. The chemicals of each factory would cause little harm by themselves. But the mixture of chemicals from both plants causes huge harm downstream. In this sort of case, we must not hold each factory owner responsible for only the small harm he would be causing if the other did not pollute. This would leave unaccounted-for most of the harm they produce together and would thus be quite implausible. In a case of this kind, provided each factory owner knows about the effluent released by the other and can foresee the harmful effects they together produce, each owner bears responsibility for his marginal contribution, that is, for as much of the harm as would be avoided if he alone were not discharging his chemicals. Each factory owner is then responsible for most of the harm they jointly produce. 36 Patten, " Remarks on Pogge's World Poverty and Human Rights" REAL WORLD JUSTICE 49 Despite this symmetry in my causal account, my critics nonethe less have a point when they accuse me of explanatory globalism37 (in analogy to the explanatory nationalism of which I am accusing the majority of development economists38). This accusation is accurate in that I focus much more on global than on national factors. I do this, because these are the factors that my readers and I are morally responsible for and because, not unrelatedly, these factors are grossly neglected by development economists of all stripes, by the media, and by the citizens of the affluent countries for whom I am writing. And I have another reason for paying more attention to the causal role of global factors in the reproduction of massive severe poverty. This further reason depends on the second special complexity I mentioned earlier, which is that the causes of world poverty also influence one another. As the global institutional order is shaped by the political leaders of the most powerful countries, who in turn are selected and shaped by their domestic institutional arrangements, so the global institutional order powerfully shapes the national regimes especially of the weaker countries as well as the composition, incen tives, and opportunities of their ruling elites. For example, corrupt rule in poor countries is made much more likely by the fact that our global order accords such rulers, on the basis of effective power alone, the international resource and borrowing privileges just described.39 These privileges provide strong incentives to potential predators (military officers, most frequently) to take power by force and compel even the most well-intentioned rulers, if they want to maintain their hold on power, to allow such potential putschists corruptly to divert state revenues. The global order thus exerts a strong influence upon the weaker and poorer countries, which makes them considerably more likely to have corrupt and oppressive national regimes. Not all of them will have such regimes, of course, but many of them will, as is well-illustrated by Nigeria and many other developing countries in which the resource sector accounts for a large fraction of GDP.40 This 37 This accusation is due to Patten: "Remarks on Pogge's World Poverty and Human Rights," though he uses the less fitting term "explanatory cosmopolitanism." 38 See Pogge, World Poverty and Human Rights, Section 5.3. 39 See Pogge, World Poverty and Human Rights, Sections 4.9, 6.3, 6.4. 40 See Ricky Lam and Leonard Wantchekon, "Dictatorships as a Political Dutch Disease" (www.library.yale.edu/socsci/egcdp795.pdf); Leonard Wantchekon, "Why Do Resource Dependent Countries Have Authoritarian Governments?" (www.yale. edu/leitner/pdf/1999-1 l.pdf, 1999). 50 THOMAS POGGE is one more reason to focus on global factors - especially on those that affect the quality of national regimes in the poorer countries. Let us now look at the evidence I have for believing that severe poverty is largely avoidable through global institutional reforms. Because the effects of sweeping reforms are harder to assess, I discuss in some detail several small reforms and their likely effects. In the WTO negotiations, the affluent countries insisted on continued and asymmetrical protections of their markets through tariffs, quotas, anti-dumping duties, export credits, and subsidies to domestic pro ducers, greatly impairing the export opportunities of even the very poorest countries. These protections cost developing countries hun dreds of billions of dollars in lost export revenues.41 Risse believes these protections will be phased out. Let us hope so. Still, these protections certainly account for a sizable fraction of the 270 million poverty deaths since 1989. 7. Moderate and Feasible Reforms of the Global Institutional Order Are there other feasible reforms of the existing global order through which severe poverty could be largely or wholly avoided? The reform I discuss in most detail involves a small change in international property rights.42 In accordance with Locke's inalienable right to a proportional share of the world's resources or some adequate equivalent, this change would set aside a small part of the value of any natural resources used for those who would otherwise be excluded from a proportional share. I show how this GRD could comfortably raise 1% of the global social product specifically for poverty eradication. And I outline how these funds could be spent so as to provide strong incentives toward better government in the developing countries. The proposed GRD in the amount of 1 % of the global product would currently raise about $320 billion annually, or 86 times what all affluent countries combined are now spending on basic social services in the developing world. What sort of impact would this money have? Consider health care. The WHO Commission on Macroeconomics and Health, chaired by Jeffrey Sachs, has put the 41 See Pogge, World Poverty and Human Rights, Section IV. 42 See Pogge, World Poverty and Human Rights, Chapter 8. REAL WORLD JUSTICE 51 cost of providing basic medical care in the developing world at $62 billion annually and has estimated that this initiative alone would prevent about 8 million deaths from poverty-related causes each year.43 Another $20 billion could go to incentivize research into the so-called neglected diseases which, because they affect mostly the poor, are grossly under-researched thus far: hepatitis, meningitis, dengue fever, leprosy, sleeping sickness, Chagas disease, river blind ness, leishmaniasis, Buruli ulcer, lymphatic filariasis, bilharzia, ma laria, tuberculosis, and pneumonia. There would be money to give every human being access to clean water and electricity. There would be money for free nutritious meals in schools that children could attend free of charge (thanks to the International Monetary Fund, many schools in developing countries are now charging attendance fees). There would be money to subsidize micro-lending which has been highly effective in recent decades even while charging interest rates of around 20%. And there would be money to relieve the crushing debt burden - often accumulated under wholly undemo cratic regimes - that is weighing down many of the poorest coun tries.44 Critics have worried about domestic cooperation. But how many governments would refuse the offer to spend large amounts of money in their country? Consider India, which has about 30% of the world's poor and currently receives about $1.7 billion annually in all kinds of official development assistance from all rich countries combined. Under the reform, some 96 billion dollars of GRD funds could be 43 The Economist (22 December 2001), pp. 82-83. 44 An especially dramatic example of this perverse consequence of the interna tional borrowing privilege is played out in Rwanda: Perhaps there was no better reflection of the world's shabby treatment of post genocide Rwanda than the matter of the debt burden incurred by the Habyari mana government. The major source of the unpaid debt was the weapons the regime had purchased for the war against the RPF, which had then been turned against innocent Tutsi during the genocide. ... incredibly enough, the new gov ernment was deemed responsible for repaying to those multilateral and national lenders the debt accrued by its predecessors. The common-sense assumption that Rwanda deserved and could not recover without special treatment and, that the debt would have been wiped out more or less automatically, had no currency in the world of international finance. Instead of Rwanda receiving vast sums of money as reparations by those who had failed to stop the tragedy, it in fact owed those same sources a vast sum of money. [International Panel of Eminent Personalities, Rwan da: The Preventable Genocide, 7 July 2000 (www.visiontv.ca/RememberRwanda/ Report.pdf), Sections 17.30 and 17.33]. 52 THOMAS POGGE spent there, greatly benefiting also India's pharmaceutical industry, its agricultural sector, its construction firms, its minimum wage level, its unemployment rate, and its tax intake. India's politicians would be extremely eager to cooperate in securing India's share of the GRD funds. The GRD, though it re-channels money from the consumers of resources to the global poor, is not, pace Satz,45 a form of aid. It does not take away some of what belongs to the affluent. Rather, it modifies conventional property rights so as to give legal effect to an inalienable moral right of the poor. For libertarians, this is the right not to be deprived of a decent start in life through a grievously unjust historical process. For Locke, this is the pre-institutional right not to be excluded, without equivalent substitute, from a proportional share of the world's resources. For broadly consequentialist theorists of justice, this is the right not to have imposed upon one an institutional order that is unjust by virtue of the fact that under this order, fore seeably and avoidably, many human beings cannot meet their most basic needs. Alan Patten claims that mine is just an exercise in re-labeling. But by assuming that I must really be calling for aid and assistance, he is begging the question I raise. Our moral failure in the face of world poverty is a mere failure to aid only if we really are morally entitled to the huge advantages we enjoy, from birth, under present institutional arrangements. And this is exactly what I am denying - by appeal to how our advantages arose historically, by appeal to Locke's resource share criterion, and by appeal to the massive life-threatening poverty to which the existing global institutional order foreseeably and avoidably exposes the majority of humankind. Patten worries that if the rich countries were to implement my proposals, they and their citizens would be unfairly disadvantaged vis-?-vis the elites of many poor countries who would continue to refuse to shoulder their fair share of the cost of eradicating global poverty.46 The details of the GRD proposal show that no country could avoid the levy on resource uses without incurring even greater surcharges on their exports (and possibly imports as well). Still, Patten is right that some politically privileged people in poor coun tries (and some economically privileged people in rich countries!) will 45 Satz, "Comments on Pogge's World Poverty and Human Rights" 46 Patten, "Remarks on Pogge's World Poverty and Human Rights" REAL WORLD JUSTICE 53 manage to contribute less than their fair share to the eradication of world poverty. What is baffling is how Patten can deem this unfair ness a sufficient reason to release us from our duty to contribute. I suspect he is once more tacitly assuming here that our relevant duty is a duty to aid and that the literature on fair sharing of the burdens of positive duties is therefore relevant. Perhaps one may indeed refuse to contribute one's fair share to a morally urgent aid project on the ground that others similarly placed successfully avoid contributing theirs. But appealing to this thought again assumes what I dispute: that the status quo involves us in violating only positive duties toward the global poor. Once it is accepted that we are vio lating our negative and intermediate duties toward the poor, Patten's postulated permission seems absurd. One may not refuse to bear the opportunity cost of ceasing to harm others on the ground that others similarly placed continue their harming. Thus, in particular, we are not entitled to go on inflicting harm upon the global poor on the ground that others (preditorial elites in the poor countries) are also continuing. Likewise, we may stop some from harming third parties, and compel some to mitigate harms they have caused, even when we are unable so to stop and to compel all who do harm in a similar way. Thus, in particular, we are no more barred from setting up a GRD by the fact that some of the affluent would unfairly escape its effects than we are barred from setting up a criminal-justice system by the fact that some crimes and criminals are unfairly neither prevented, nor deterred, nor punished. Yes, some will get away with murder or with enriching themselves by starving the poor. But this sad fact neither permits us to join their ranks, nor forbids us to reduce such crimes as far as we can. Centre for Applied Philosophy and Public Ethics Australian National University Canberra ACT 0200 Australia E-mail: tp6@columbia.edu Article Contents p. [29] p. 30 p. 31 p. 32 p. 33 p. 34 p. 35 p. 36 p. 37 p. 38 p. 39 p. 40 p. 41 p. 42 p. 43 p. 44 p. 45 p. 46 p. 47 p. 48 p. 49 p. 50 p. 51 p. 52 p. 53 Issue Table of Contents The Journal of Ethics, Vol. 9, No. 1/2, Current Debates in Global Justice (2005), pp. 1-306 Volume Information Introduction [pp. 1-9] Cosmopolitanism and Global Justice [pp. 11-27] Real World Justice [pp. 29-53] Against Global Egalitarianism [pp. 55-79] What We Owe to the Global Poor [pp. 81-117] The Role of Apparent Constraints in Normative Reasoning: A Methodological Statement and Application to Global Justice [pp. 119-125] Do Patriotic Ties Limit Global Justice Duties? [pp. 127-150] Duties to the Distant: Aid, Assistance, and Intervention in the Developing World [pp. 151-170] The Cosmopolitan Imperative: Global Justice through Accountable Integration [pp. 171-199] Three Models of Global Community [pp. 201-224] Toward an International Rule of Law: Distinguishing International Law-Breakers from Would-Be Law-Makers [pp. 225-246] Preventive Wars, Just War Principles, and the United Nations [pp. 247-268] Does the Gats Undermine Democratic Control over Health? [pp. 269-281] Global Justice for Humans or for All Living Beings and What Difference It Makes [pp. 283-300] Back Matter 
work_l5ceby63sja3tlxdkhqcw35t44	----	42439_2019_13_Article 1..21 ORIGINAL ARTICLE Corrective Justice Among States Pavlos Eleftheriadis1 # The Author(s) 2020 Abstract The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress in cases of loss caused by unfairness. An illustration of corrective justice among states is the Eurozone’s response to the financial crisis. The assistance offered to the most burdened states was not as an attempt to arrive at fair shares but an attempt to remedy the losses unfairly caused by the mistakes made by the Eurozone as a whole, when designing its basic architecture. Keywords Corrective justice . Solidarity. Legitimacy. Eurozone . Fairness The question of justice among states became a pressing issue in Europe when the financial crisis of 2008 affected states in radically differently ways. The Eurozone members took steps to assist the worst affected among them: Greece, Ireland, Portugal, Spain and Cyprus.1 They made available funds for emergency loans even though the original assumption was that there would be no state bailouts.2 In due course, the members of the Eurozone sought to amend and supplement the treaties. They created a new international institution, the European Stability Mechanism by way of a treaty of international law that is not part of the EU treaties, with a mandate to assist member states in financial troubles.3 At the same time, and in a significant shift of policy, the European Central Bank started purchasing sovereign bonds. In the end, the https://doi.org/10.1007/s42439-019-00013-x 1In addition, there were also programmes of assistance to some non-Eurozone states, such as Hungary, Latvia and Romania. 2Some scholars argued against this initial assumption with regard to Art. 122(2) TFEU. See, for example, Tuori and Tuori 2014, 138 ff. 3Extensive and very helpful accounts of the constitutional legal aspects of the crisis are offered by Tuori and Tuori 2014, A. Hinarejos 2015 and F. Fabbrini 2016. * Pavlos Eleftheriadis pavlos.eleftheriadis@law.ox.ac.uk 1 Mansfield College, Oxford OX1 3TF, UK Jus Cogens (2020) 2:7–27 Published online: January202023 http://crossmark.crossref.org/dialog/?doi=10.1007/s42439-019-00013-x&domain=pdf http://orcid.org/0000-0003-1120-4650 mailto:pavlos.eleftheriadis@law.ox.ac.uk financial assistance programmes helped the burdened states weather the storm so that they all remained in the Eurozone without defaulting on their loans. All of them, however, suffered great economic damage, loss of output and high rates of unemployment. 1 From Fairness to Solidarity The Court of Justice has found that these assistance operations were lawful.4 But what was their moral character? The question remains controversial. Were they manifestations of justice, discharging an obligation of solidarity towards the weaker states? Or were they simply instances of prudence, not strictly required by law or morality, only expedient responses to an emergency? Or were these new loan far too generous, unjustly transferring resources from the responsible to the irresponsible? These are still deeply controversial questions. Some believe that the Eurozone did too little to assist its weakest members.5 Others think it did too much.6 All of these positions may rely on some conception of what is fair or unfair. These matters depend on our interpretation of the purpose and nature of the Eurozone agreements, but they also turn on deeper assumptions about the moral obligations arising out of long-term cooperation. The vocabulary of justification is not optional in this context. Fairness is always a matter closely connected to any interpretation of agreements between two or more parties. This is so both as a matter of the moral character of law in general, as many legal philosophers have shown,7 but also as a matter of the specific moral requirements of agreements, including international agreements. In many jurisdictions, for example, the law requires ‘good faith’ in the interpretation and enforcement of contracts, espe- cially in cases where cooperation is for an indefinite period. The distinguished English judge Tom Bingham described the role that fairness in the interpretation of long-term agreements in English and foreign law as follows: In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith. This does not simply mean that they should not deceive each other, a principle which any legal system must recognise; its effect is perhaps most aptly conveyed by such metaphorical colloquialisms as ‘playing fair’, ‘coming clean’ or ‘putting one’s cards face upwards on the table.’ It is in essence a principle of fair open dealing … English law has, characteristically, committed itself to no such overriding 4 See Case C-370/12, Pringle, ECLI:EU:C:2012:756 and Case C-62/14, Gauweiler et al. v Deutscher Bundestag, ECLI:EU:C:2015:400, which was a preliminary reference from the German Constitutional Court in BVerfG, Beschluss des Zweiten Senats vom 14. January 2014–2 BvR 2728/13 - Rn. (1–24). 5 See, for example, A. Mody 2018 and J. E. Stiglitz 2016, 85–144. 6 For example, U. di Fabio 2014, 107–110 and H. W. Sinn 2014, 343. Sinn thought that rather than new loans, Greece should have been given significant debt relief: “The right mixture of debt relief, privatization, and wealth levies could be jointly negotiated in a Paris Club debt conference convened to reset the Eurozone. The European debt crisis has many causes, and creditors and debtors alike share the responsibility. A way to distribute the burden fairly should thus be sought—and it is important that it be found soon”, 343. 7 For this general view of law, see R. Dworkin 1986, N. E. Simmonds 2007, R. Alexy 2009. Jus Cogens (2020) 2:7–278 principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.8 In the USA, the Second Restatement of Contracts requires that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement”.9 English law takes a narrower view, but it too does not always enforce contracts that parties willingly entered into, if their terms are ‘unconscionable’ or are the result of undue influence exercised due to unequal bargaining power.10 So even in England, unfairness can occasionally be a reason for holding a deal unenforceable. Whatever the position in contract law, the principle of ‘good faith’ is also an established principle of the interpretation of treaties of international law. Article 26 of the Vienna Convention of the law of Treaties, which bears the title ‘pacta sunt servanda’ simply states: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’11. The reference to ‘good faith’ means that any interpretation is subject to its context and may evolve with the expectations of the parties.12 The general rules are that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty ‘in their context’ and in ‘the light of its object and purpose’ because ‘each of these elements guide the interpreter in establishing what the Parties actually intended, or their common will’.13 It follows, therefore, that the justification of the assistance programmes as a matter of the law of treaties of the Eurozone can turn on issues of ‘good faith’ or fairness. It cannot simply be a matter of the narrow reading of explicit technical rules. Whether the law permits such assistance will depend on the context, intention and nature of the parties that entered into the Eurozone agreements as these evolved over time. These general accounts of fairness do not decide the issue of the fairness of the Eurozone. They do, however, put the question of solidarity in context as a specific manifestation of a well-known question. Long-term agreements, be they private or agreements among states, must be interpreted in light of a theory of fairness, but they do not always create obligations of solidarity. Whether fairness requires solidarity will depend on the specific terms and practices of each specific agreement. If the Eurozone agreements do create such obligations, it must be for a reason. Most theorists say that no such reason exists, given how the Eurozone agreements are currently structured. 8 Interfoto Picture Library Ltd v Stilletto Visual Programmes Ltd [1989] 1 Q.B. 433, 439. See also Director General of Fair Trading v First National Bank [2001] UKHL 52, [2002] 1 A.C. 507 at [17] (Lord Bingham of Cornhill). 9 Restatement (Second) of Contracts para.205. cf. Uniform Commercial Code s.1–203. See R. S. Summers 2000, 118–144. 10 A relevant case is Lloyds Bank Ltd v Bundy [1974] EWCA 8, [1975] QB 326, where Lord Denning summarized the doctrine of ‘inequality of bargaining power’ as follows: ‘By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other’. The House of Lords has refused to endorse such a wide principle, however. 11 For an interpretation see Dorr and Schmalenbach 2011), 427–451. 12 For this point, see E. Bjorge 2015, 189, especially at 203–204. 13 The quotes are from the ‘Decision regarding delimitation of the border between Eritrea and Ethiopia’, XXV Reports of International Arbitral Awards (2002), 83–195, at 109–110. “The meaning of these Treaties is thus a central feature of this dispute. In interpreting them, the Commission will apply the general rule that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Each of these elements guides the interpreter in establishing what the Parties actually intended, or their ‘common will’, as Lord McNair put it in the Palena award”. Jus Cogens (2020) 2:7–27 9 http://www.bailii.org/ew/cases/EWCA/1974/8.html The German philosopher Jürgen Habermas writes that the present economic rationales of the Eurozone are incompatible with social justice and democratic legitimacy: ‘A technocracy without democratic roots would not have the motivation to accord sufficient weight to the demands of the electorate for a just distribution of income and property, for status security, public services and collective goods when these conflict with the systemic demands for competitiveness and economic growth’14 Habermas contrasts ‘technocratic’ blueprints for dealing with the crisis and a project for a ‘supranational democracy in the core of Europe’.15 By the term ‘democratic roots’, Habermas seems to imply that solidarity needs to be supported by the identification of each person with a single political community as its citizen. He says that the EU’s ‘technocratic’ response runs the risk of lacking ‘the motivation to accord sufficient weight to the demands of the electorate for a just distribution of income and property, for status security, public services and collective goods when these conflict with the systemic demands for competitiveness and economic growth’.16 Habermas’ argument has a compelling logic, which is shared by standard defences of the welfare state. The argument assumes that citizens of the same state will have the psychological motivation to recognize a duty of solidarity to one another, normally expressed by ideas and principles of social justice. Indeed, the EU treaties recognize the division of the Union into states and an associated division of them into welfare states.17 As a matter of fact, European citizens do not feel the same identification with those they consider outsiders. Europe’s task, therefore, is to expand outward the bonds of community that exist within states. This is why Habermas argues that the Union needs to create its own ‘democratic roots’ in common identification. If this argument is right, then the introduction of meaningful solidarity in the European Union presupposes the profound transformation of its institutions. Habermas is clearly aware of the seriousness of the political challenge. He proposes a ‘real political union’, which will change the circumstances of European citizens.18 Social justice can then become a component of a sharing in power under the institutions of a political community. In order to achieve solidarity, we will need to abandon borders within Europe to produce a single, integrated political community. Is this a valid argument? I do not think it is. I do not doubt the positive aspect of the argument. Of course, a political community creates bonds of solidarity. I do wish to challenge, however, the negative part, namely, the claim that solidarity does not apply when persons are not bound by the deep bonds of citizenship. In my view, obligations of solidarity can arise from relations among persons or, indeed, from relations among states and other collective bodies, when they engage with one another in the right way. Solidarity does not always require a relationship of citizenship. Other relations can have the same result. The key to the argument is that obligations of solidarity arise as acts of assistance under a principle of mutual aid or as a principle of redress. These are not matters of justice in distribution but matters of corrective justice. This point has been obscured by most discussions of solidarity in the European Union, where the dominant language is that of distributive claims. 14 J. Habermas 2015a, 101 and J. Habermas 2015b. For a parallel argument see R. Forst 2015, 227–234. 15 J. Habermas 2015a, 98. 16 J. Habermas 2015a, 95–107, at 101. See also J. Habermas 2013. 17 This point is also well set out in J. Neyer 2012, 35–55. For an interesting debate on this between Neyer (who sees the European Union as a project that does not seek to be federal) and Forst (who follows Habermas in accepting the federalist interpretation), see J. Neyer 2015, 211–226 and R. Forst 2015, 227–234. 18 J. Habermas 2015a, 100. Jus Cogens (2020) 2:7–2710 2 Distributive Claims The European Union treaties are not silent on solidarity. Article 3(3) TEU provides that the Union shall ‘promote social justice’ and promote ‘economic, social and territorial cohesion, and solidarity among Member States’. Solidarity is also mentioned in Article 122 TFEU in the context of assistance in emergencies, whereby the Council may decide ‘in a spirit of solidarity between member states’ on measures assisting a state if ‘severe difficulties arise in the supply of certain products, notably in the area of energy’. This article, however, was not invoked in the case of the financial assistance programmes. It is not entirely clear, however, what these general statements mean. Perhaps, like other general statements in this part of the treaties, they do not intend to create clear obligations, moral or legal, on the institutions of the European Union or the member states.19 They are supplemented, however, by the mention of solidarity in particular policies. Solidarity is mentioned in the context of asylum policies20 the general ‘solidarity clause’ in case of natural or man-made disasters,21 and in the detailed mechanism for distributions of funds to the member states. These funds are very important for the distribution of resources from the wealthier states to the poorer ones. They were created at various points in the history of the Union and are now provided for in the treaties. The European Social Fund is covered by articles 162 to 164 TFEU, Structural Funds are provided for in article 175 TFEU, and a Regional Development Fund is provided by article 176 TFEU. The treaty empowers the EU to distribute funds with the aim of improving employment opportunities; strengthening social inclusion; fighting poverty; promoting education, skills and life-long learning; and developing active, comprehensive and sustainable inclusion policies.22 Nevertheless, the total amount of spending on such projects is very small, at least in relation to the overall EU economy. It is also very small in proportion to similar funds available within each state for social purposes. In the member states, the equivalent spending ranges between 35% and 58% of gross domestic product. In the total EU budget, the equivalent amount is only about 1% of the gross national income of the 28 member states.23 According to an estimate made by the Institute of Fiscal Studies, the EU’s total spending on structural, cohesion and agriculture and rural development funds accounted for about 38% of the total EU spending in 2014. The scale of redistribution involved is therefore very modest indeed. The direct European Union social spending is about 20 or 30 times less than what occurs within a member state. The small size of these transfers strengthens the argument that solidarity in the European Union is not really a functional principle. Solidarity may be an exclusive preserve of the member states operating only within their separate political communities. 19 See E. Küçük 2016, 965–983 and M. Ross 2010, 23–45. For a discussion of the (relatively limited) role of the Charter of Fundamental Rights in the protection of social welfare rights, see S. O’Leary 2005, 39–87. 20 See Article 67 TFEU and Article 80 TFEU. The principle has not, however, made any difference in practice. See Joined Cases C-411/10 and C-493/10 N.S. and M.E., EU:C:2011:865, par. 93. 21 Article 222 TFEU. 22 The rules of distribution of these sums are set out in Regulation (EU) No 1304/2013 of the European Parliament and of the Council of December 17, 2013 on the European Social Fund and repealing Council Regulation (EC) No 1081/2006, OJ L 347, 20.12.2013, 470–486. The Regulation provides for common principles for the implementation of five European Structural and Investment Funds: the European Regional Development Fund (ERDF), the European Social Fund (ESF), the Cohesion Fund, the European Agricultural Fund for Rural Development (EAFRD) and the European Maritime and Fisheries Fund (EMFF). The treaty articles are also supplemented by Protocol No 28 on economic, social and territorial cohesion. 23 See Browne et al. 2016. Jus Cogens (2020) 2:7–27 11 Many sophisticated commentators observe that the social dimension of the EU is minimal. Commenting on the ‘patchwork’ of social justice provisions in EU law, Gráinne de Búrca writes that solidarity had a ‘constructive potential’ which could gradually ‘promote a degree of solidarity and mutual responsibility—however tentative and limited at first—between states, citizens, and other residents within the enlarging European space’.24 Such cautious endorse- ments of solidarity, however, cannot hide the fact that social justice is a very small part of the EU. Any authors thus take the view that, since the EU is not a state, the normal rules of distributive justice do not apply to it. Since solidarity or social justice is a principle that only applies within states (or equivalent political communities), no solidarity principle applies in the European Union, at least not yet.25 In this vein, Professor Christian Joerges, a leading scholar on European Union law, argues that the European Union is incapable of having a proper policy towards social justice. Joerges refers to an argument made by Friedrich Carl von Savigny, the leading German legal scholar of the nineteenth century, that justice applies to private relations but not to the relations between states. In Joerges’ reading, Savigny has shown that ‘interstate relations … remain in an unruly state of nature governed by power and politics rather than law’.26 From Savigny’s premise, Joerges draws the conclusion that the European Monetary Union is incapable of imposing a uniform architecture of social policy. It does not have the means. Europe has instead created a competitive ‘single market’ where each state seeks to have a social policy on its own, allowing for great ‘socioeconomic diversity’, which the institutions of the EU cannot address. Joerges adds that the various economies have diverged rather than converged since the creation of the Union. Europe’s idea of ‘a highly competitive social market economy’ results in the undermining of social justice and solidarity everywhere in the EU. He says that ‘the socioeconomic diversity of the Union was treated with benign neglect and an institutional framework with the potential to manage the implication of this move was not established’.27 He finds this ‘fateful’ for the ‘prospects of Social Europe’.28 The only policy that, for Joerges, is working at EU level is that emanating from the European Central Bank, which in his view is insensitive to the concerns of social justice. Hence, the ‘Maastricht arrangement was an ill- defined political compromise, rather than a sustainable accomplishment of constitutional validity and strength’, which has led to ‘authoritarian managerialism’.29 The only way of overcoming this stalemate, for Joerges, is through the creation of a ‘transnational democracy’ through federal institutions. He insists that such a transformation is urgent, because the present arrangements do not provide a solid basis for solidarity and social justice.30 A similar view has been taken by Floris de Witte, who has offered an extensive and original discussion of the question of social justice in the EU. De Witte argues that ‘justice is an associative commitment: it is born and sustained by the interaction between particular groups of citizens’.31 Nevertheless, de Witte’s discussion locates justice firmly within the framework and architecture of institutions of the state. De Witte argues that the existence of the European 24 G. de Búrca 2005, 9. 25 This is a view reflected in the writings of influential legal scholars. It is the view, for example, defended by A. Williams 2010), A. Somek 2015, 295–310, and N. Walker 2015, 247–258. 26 C. Joerges 2017, 92–119, at 94 (citing from Savigny’s System des Heutigen Römischen Rects, vol. III, 1849). 27 C. Joerges 2017, 107. 28 C. Joerges 2017, 107. 29 C. Joerges 2017, 111. Joerges follows here similar arguments made by F. W. Scharpf 2002, 645–70. 30 A similar view is taken by Frank Vandenbroucke, who proposes a new ‘Social Union’ as the appropriate response to the current absence of proper institutions of solidarity. See F. Vandenbroucke 2017, 3–46. 31 de Witte 2008, 208. Jus Cogens (2020) 2:7–2712 Union ‘ensures that the associative connections between citizens across borders are incorpo- rated within the pursuit of justice on the national level’.32 In effect, the EU brings citizens closer to one another, by putting them ‘in a social relationship’ in the sense that ‘all EU citizens are part of the incipient and ill-defined European polity’ but also on ‘the national level, where citizens of different nationalities engage with each other through a whole range of social interactions’.33 But de Witte concludes that since the EU is in effect an international project, it does not have the potential for justice: ‘The EU does not dispose of the institutional sophistication required in order legitimately to articulate an autonomous conception of supra- national justice…. In consequence, the EU cannot engage in the definition of supranational ideas of equality, fairness, or distributive justice in a legitimate way’.34 Surprisingly perhaps, Joerges and De Witte are in agreement with the former Finance Minister of Germany, Wolfgang Schäuble. In a widely leaked ‘non-paper’ to the ministers of the Eurogroup on the occasion of his departure from his post in November 2017, Dr. Schäuble gave a detailed account of his overall assessment of the Eurozone, where he also expresses scepticism about the potential of the European Union to achieve social justice. It lacks both of the mechanism for redistribution and the required institutions of democratic accountability. The paper states that the Ministry’s view fiscal responsibilities and fiscal control belong together. The paper observes that there are only two ways in which the EU could maintain the symmetry of responsibilities and control: Either we transfer parts of national sovereignty and control of fiscal rules to the EU level (“Euro Finance Minister”), together with a greater democratic legitimacy. This would certainly require EU treaty changes to be credible. Or we agree on an intergovernmental solution.35 The real choice here appears to be between full union and loose integovernmentalism. The ‘non-paper’ by the Finance Ministry, just like Joerges, De Witte and Habermas, relies on the assumption that an intergovernmental institutional setting is an inappropriate institutional arrangement for the operation of solidarity. The paper therefore proposes further political union through treaty change as a priority for the future. But, as long as ‘there is little willingness for treaty changes, we should follow a pragmatic two-step approach: Intergovern- mental solution now, to be transposed into EU law later on’.36 In summary, the views I have examined by Habermas, Joerges and De Witte make the following negative claim: they suggest that solidarity is strictly limited to the national domain and cannot develop in an international context. I will now argue that this assumption is mistaken. I reject the premise that solidarity applies only within states and that solidarity does not apply to international or intergovernmental structures. In order to understand this point, we need to expand our scope beyond familiar assumptions about the domestic welfare state. I will argue that solidarity is not identical to distribution. Solidarity has in fact two distinct grounds, 32 Ibid. 33 de Witte 2008, 123. 34 de Witte 2008, 210. 35 Available at: https://www.scribd.com/document/361120275/German-finance-ministry-non-paper-on- Eurozone-reforms. 36 These views seem to correspond to standard views among German economists. It is common place in German economics departments that within the Eurozone ‘ever member country has to do its homework and that relying on bailouts from others distorts incentives’. See Brunnermeier et al. 2016, 97. Jus Cogens (2020) 2:7–27 13 https://www.scribd.com/document/361120275/German-finance-ministry-non-paper-on-Eurozone-reforms https://www.scribd.com/document/361120275/German-finance-ministry-non-paper-on-Eurozone-reforms one in distributive justice and one in corrective justice. Only distributive justice is restricted to the domestic case. 3 Distributive and Corrective Justice Although the distinction between distributive and corrective justice is old and well understood, it has not, for the most part, been deployed in the debates concerning international justice.37 It appears that when scholars refer to justice in the international context, they only have in mind distributive claims. If distributive claims cannot be justified, then justice is irrelevant.38 These views seem to work on the presupposition, or at least the mental picture, of justice relying on a central distribution of a good to beneficiaries according to criteria of need or merit. This is the typical model of the distribution of fair shares outlined by Aristotle and repeated many times in modern philosophy. It is the standard model of distributive justice as justice in distribution. John Rawls too identifies social justice with distributive justice when he says on the ‘subject of justice’ that: ‘the primary subject of [social] justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation’ (emphasis added).39 In the case of the state, the distribution takes place through central taxation and social welfare schemes. The distribution is not from state resources, but effectively from the mostly better off taxpayers to the least well off, as they receive public assistance through public funds or through freely available services, such as education and health care. It is clear that such a model of justice cannot apply to the European Union. First, there is no central taxing authority collecting public funds. Second, there is no central spending power of such funds. Third, there are not in place any institutions with the appropriate democratic powers for deciding on the appropriate test of distribution, since the European Parliament cannot have such powers. Fourth, we do not have clear institutions for the accountability of such decisions. Fifth, we do not have the underlying ‘community’ or ‘demos’ which would see the public support the transfer of funds from one part of the community to another and give meaning to mechanisms of participation as we – more or less – have in the conventional welfare systems of the states. For these reasons, the advocates of political union as a pre- condition of institutions of solidarity, such as Habermas, di Fabio and Joerges, must be right to rule out a general distributive principle for the European Union under the present institutional arrangements. If social justice makes sense only within a territorial state, then it can have no application to the European Union as it is today. This argument, however, is not the end of the matter as far as solidarity is concerned. It fails to take into account the way in which solidarity works in other ways. The relations between states just like the relations of persons are subject to a second dimension of justice, which since Aristotle we call ‘corrective justice’. Corrective justice does not provide for the distribution of something from a central source or state but accounts for the just relations among two or more 37 See for a valuable exception, T. Campos 2017, where the right to health is recast as an obligation of corrective or ‘commutative’ justice and not ‘distributive’ justice. 38 This assumption is implicit, I think, in T. Nagel 2005, 113, where ‘social justice’ is identified with justice in distribution. 39 J. Rawls 1999a, 6. Rawls refers to Aristotle’s Nicomachean Ethics 1129b-1130b in support of his view of social justice; J. Rawls 1999a, 9. Jus Cogens (2020) 2:7–2714 parties in the event of cooperation, exchange or reparation.40 Corrective justice addresses injustice by restoring the original positions between a person that suffered a loss and the person who gained a profit from the other’s expense. The just redress is the arithmetic mean between the part of the earner and the part of the loser.41 In Ernest Weinrib’s apt description, the organizing idea is that of correlativity. The ‘elements of liability under corrective justice can be explicated only in terms of concepts whose normative force applies simultaneously to both parties’.42 Unlike distributive justice, corrective justice takes the parties to be equal. For corrective justice ‘liability involves a conception of fairness that recognizes the equal normative status of the two parties and treats their normative positions as mirror images of each other’.43 These ideas have generated some very sophisticated arguments about the substance of the law of tort, contract and unjust enrichment. There is no need to rely on these theories in any detail here. What we need for the purposes of our argument is only the idea that states are independent agents, similar to corporations or other collective agents that are subject to private law when they are cooperating towards a common project, sharing in the process rights, obligations and risks. Such relations create mutual moral obligations from each state to all others that are analogous to legal obligations arising in contract law. I say that are merely analogous and not identical, because there is no contract law in the international sphere. Strictly speaking, since there is no central power of enforcement in international law, and since all legal obligations are to some extent provisional under public international law, there cannot be contract law in the strict sense. Under international law, states can have obligations of law to one another, but they cannot rely on the jurisdiction of a common court to enforce them. So the analogy with contract is incomplete. Still however, states do owe each other duties on the basis of their agreements. That states have mutual obligations to one another which is not an original thought. In the Law of Peoples, Rawls argues that the international community must be based on principles of fairness that apply to states. He argues that such principles would have been adopted by well- ordered peoples in a hypothetical original position for the ‘law of peoples’. In Rawls’ account, the relevant agents are the peoples and not their citizens. He argues that inequalities between states will be unjust ‘because of their unjust effects on the basic structure of the Society of Peoples, and on relations among peoples and among their members’.44 He further argues that in such a scenario, the parties will ‘formulate guidelines for setting up cooperative organiza- tions, and will agree to standards of fairness for trade as well as to certain provisions for mutual assistance’.45 Nevertheless, the relevant principle of justice does not presuppose a central distributing power. It applies in a decentralized way among the various states, as a self- imposed constraint on their foreign policies by way of ‘cooperative organizations’ and other agreements. In this account, the principles of international justice bind states in their mutual relations: they create obligations to exercise a particular kind of policy or to discharge their natural duties to each other. A principle of mutual aid is part of these obligations. One of the eight principles of the law of peoples is that ‘peoples have a duty to assist other peoples living under 40 For a general historical account of Aristotle’s distinction between distributive and corrective justice see, I. Englard 2009. 41 See I. Englard 2009, 8. 42 E. J. Weinrib 2012, 10. 43 Ibid. 44 J. Rawls 1999a, 113. 45 J. Rawls 1999a, 115. Jus Cogens (2020) 2:7–27 15 unfavourable conditions that prevent their having a just or decent political and social re- gime’.46 The obligation to assist binds peoples but exists only up the point at which societies overcome ‘unfavourable conditions’. This is not strictly speaking a matter of the distribution of resources between the parties, but the one off lifting of our fellow human beings from a state of destitution. Rawls’ principle of aid is solidarity in assistance, not solidarity in achieving fair shares.47 Although Rawls does not use the term ‘corrective justice’ for this type of bilateral obligation, it is clear that what he has in mind for the Law of Peoples is very different from the kind of justice that applies to the basic structure of a single political community. It is not a principle of distribution of fair shares but a bilateral relationship crated by the face-to-face encounter of one person or one state with another. The claim arises because of desperate need of the burdened person or state, not because of a pattern of distribution. This is a different moral relationship to that of citizenship. When we encounter each other as citizens, we look at the whole picture in relation to a vertically organized system of authority to which we both contribute. We then raise the question of the existence of inequality in the distribution of ‘primary goods’ among us buy that vertical system of authority. In the international domain, by contrast, our encounters are structured in a purely horizontal way by way of ‘cooperative’ agreements, without a vertically organized system of authority guiding our actions or resolving our disputes. The relevant domain of justice here is created by horizontal relations only. Rawls presents the obligations of solidarity or justice in the international case as arising out of the reasonable terms under which states would join a system of international law as equals. Rawls’ argument introduces in this way the idea that fairness should be a precondition of general international law, whatever else agreements may establish as binding obligations. In this view, the horizontal principle of fairness is a background condition for the continuing legitimacy of the international community as a whole, including the multilateral treaties among its members. The best way in which we can understand such a non-distributive principle of fairness is as a principle of corrective justice, similar to that giving rise to a duty of mutual aid. It arises – just as it does with persons – from the very fact of the vulnerability of states towards natural disasters or other misfortunes.48 If a prosperous state is in a position to provide aid to a burdened state without risk to itself, it has a duty to do so. A similar principle of corrective justice covers the cooperative practices of international law in the following way. If states engage with one another – as they should – in setting up complex cooperative arrangements in the course of international relations, then they are bound by the terms of fairness towards one another, just like motorists sharing a road are bound by the rules of negligence for accidents. We often call this aspect of justice ‘cooperative justice’. The distinction between distributive and corrective justice has one important consequence for the European Union. It suggests that the simple disjunction drawn by the Habermas and 46 J. Rawls 1999a, 37. 47 There is an analogy with the idea of a duty of mutual aid among strangers. Such a duty is ethically fundamental outside any legal or institutional framework. I follow here B. Herman 1984, 577–602, who applies the idea of the ‘dependence’ of human beings to the process of the categorical imperative and concludes: ‘The duty of mutual aid has its ground in the facts that we are dependent beings with ends it is not rational for us to forgo: ends set by “true needs” whose satisfaction is a necessary condition for the exercise of rationality. As we are rational agents, we set ends… As a person’s true needs are those which must be met if he is to function (or continue to function) as a rational, end-setting agent, respecting the humanity of others involves acknowledging the duty of mutual aid: one must be prepared to support the conditions of the rationality of others (their capacity to set and act for ends) when they are unable to do so without help’ (p. 597). See also B. Herman 2012, 391–411. 48 By analogy with dependent human beings, as in B. Herman 1984. Jus Cogens (2020) 2:7–2716 Joerges between independence and solidarity was not correct. Remember that they assumed that there were only two ways forward as far as the future of the Eurozone was concerned: either a decentralized and international fiscal order in which each country was exclusively liable for its own debt or a fully integrated fiscal union in which spending powers are transferred to a European authority. The distinction necessarily assumed that there could not be a sharing of burdens or a practice of solidarity in an international union, without some form of integrated political union. This is correct, only as far as distributive justice is concerned. If there is no single political power to tax the parties and distribute the shares justly, then it makes no sense of speaking of ‘just shares’. The question is very different if we are asking about something else. Solidarity in the form of mutual aid does make sense without a central authority doing the sharing. Corrective justice that arises from international cooperation does not require political union. The question that corrective justice asks is not one of fair shares, but of fair redress for a wrong. If parties provide redress to one another for the wrongs they committed, they exhibit solidarity outside a distributive framework. If I drive carelessly and I cause a cyclist to lose their balance, I owe them a duty of reparation, even if it is only an apology. If I have injured them I must provide appropriate redress. If I ignore my moral obligation to another person in need of aid, I show – among other things – a lack of solidarity. It is the same with states. A state may owe to another state some form of redress, for example, the return of a cultural artefact stolen by some of the first state’s citizens (e.g. the Parthenon marbles looted by Lord Elgin) or compensation for an oil spill caused by a military vessel. This sense of solidarity is entirely familiar from private law. There is no reason for not following the same principle in international relations. The best example of this kind of obligation in international relations is the granting of debt forgiveness as an obligation under the doctrine of ‘odious debt’ in international law.49 Under certain – very demanding – conditions, the debts assumed by a corrupt government may not be held to bind a subsequent democratic government. The doctrine of ‘odious debt’ holds that the debt must be unlawful and therefore invalid. A lender should not seek to exploit a dictator’s greed for one’s personal profit. Contract law has a similar doctrine about contracts whose object is unlawful. Under that doctrine, Cuba and the USA refused to recognize Cuba’s debts that had been taken by the Spanish colonial government just before Cuba’s independence.50 The same applied to loans taken by the Costa Rican government in the dying days of the dictator Federico Tinoco’s corrupt regime.51 In all these cases, fairness in substance was deemed more important than the terms of an existing agreement, which was considered invalid. Of course, the theory of ‘odious debt’ cannot conceivably apply to any member of the European Union. The issues are entirely different. All the members of the Eurozone are democracies and have democratically approved the original accession to the European Monetary Union as well as any amendments to the treaties. They have borrowed in the international markets exercising their constitutional powers in fiscal policy. Nevertheless, the rule of odious debt may help us understand the basic principle, namely, that fairness 49 R. Howse 2007, J. King 2016. 50 See R. Howse 2007, 10–11. 51 Aguilar-Amory and Royal Bank of Canada claims (Great Britain v Costa Rica) (1923) 1RIAA 371. See R. Howse 2007, 11–12. Jus Cogens (2020) 2:7–27 17 applies more generally as a background principle for all international institutional arrangements. 52 The general point is this. Ιf cooperative fairness creates international obligations under a principle of corrective justice in some cases of international interaction, then it can also create obligations in a process of market integration such as that provided for by the European Union treaties. In the most direct case, if a state suffers a loss because of the wrongful action of another state, it is then entitled to redress, and failure to provide it is a failure to exhibit appropriate solidarity. Indeed, the European Union has created exactly such mechanisms. It provides redress for violations of the law through the Commission and the Court of Justice. But we are entitled to ask if corrective justice creates further moral obligations of fairness or solidarity among states on the basis of their cooperation. We need to refine the argument by asking in particular who can be responsible for the joint decisions of a cooperative agreement such as the European Union. 4 Structural Responsibility The principle of mutual aid applies between two parties that encounter each other in a certain way. The case of international cooperation in trade agreements is more complex. The parties organize their relationship based on common rules and monitored by multi-lateral institutions. Here, the argument for a principle of cooperative fairness must take a modified form. By entering the founding treaties, the member states jointly created institutions of cooperation, such as the Commission, the Council, the European Parliament and – more recently – the European Central Bank. Such institutions make decisions in the name of the organization as a whole. Some of these decisions are highly consequential. They may determine a member states’ social and economic future. These common institutions are not entirely independent nor do they enjoy comprehensive powers. The member states retain economic decision-making and exercise some element of control through the Council of ministers (and through their delegates at the European Parliament). The member states remain, therefore, key decision- makers and are to that extent responsible for what the EU does.53 At the same time, we cannot hold the states responsible for everything that the EU does. But since the member states created the basic structure, such as the single market and the free movement of persons, goods, services and capital and if we can detect some economic outcomes – positive or negative – with these structures, then the member states can be held to be jointly responsible for them. This is not an entirely original thought. Something similar may already exist in the structures of global economy. It is common ground that the current structures of economic globalization are the conscious result of policy decisions made by the leading economic powers, for example, the global financial architecture, the World Trade Organization and numerous other multilateral agreements that make trade possible.54 The philosopher Thomas Pogge argues, for example, that world poverty is partly the result of the joint actions of 52 An attempt to interpret Greece’s debt as ‘odious debt’ is made in Bantekas and Vivien 2016, 539–565. In my view the argument cannot possibly succeed. Greece’s democratically elected governments created the debt mountain in the period between 1980 and 2010. 53 In this sense, we must consider the European Union to be an international and not a federal project. For this argument, see P. Eleftheriadis 2007, 1 and S. Weatherill 2016. 54 See, for example, J. Stiglitz 2002, where he describes the developments brought about by ‘global institutions’. See also D. Rodrik 2011. Jus Cogens (2020) 2:7–2718 developed states, which make it possible for dictators and corrupt politicians to siphon their ill- gotten gains to tax heavens around the world.55 The most extensive argument in this respect is offered by the American philosopher Aaron James. In his book, Fairness in Practice describes the process of creating institutions of international trade as an international ‘social practice’, a practice of ‘mutual reliance on common markets’ which, in his view, creates ‘a distinctive class of fairness responsibilities’.56 These responsibilities go beyond the explicit commitments of the parties. They are structural in that they require that the structures of international trade meet certain requirements of ‘structural equity’. James argues that the states that create these structures of international trade are jointly responsible for any harm and unfairness that such structures bring about. In James’ argument, the states’ negotiation has, in effect, the same effect as direct legislation.57 The states are structurally responsible for their processes of negotiation, just as much as if they were directly legislating the resulting consensus. What are the structural principles of fairness that bind the states, when they act in this way? For James, these principles require ‘due care’ for those who unfairly lose out from the system overall, principles of ‘fair distribution among states’ and ‘fair distribution within states’.58 The states that participate in the international social practice of trade are jointly responsible for setting up mechanisms for compensation to the losers of free trade, as well as mechanisms for maintaining equality in the distribution of benefits among states and among populations within states. An argument along these lines concerning structural responsibility is clearly applicable to the European Union, where the member states have legislated the terms of their own cooperation. They have created legally binding treaties and created enforcement mechanisms. Their actions have gone much beyond a mere ‘practice’ of international trade, as described by James. In the case of the European Union the structural responsibility of the states is even more direct than that of the creators of diffuse systems of cooperation, such as the World Trade Organization or systems of international arbitration. Cooperative structural fairness applies thus to the member states in two stages. At the first stage, which we may call ‘basic fairness’, the principle of fairness asks if an agreement to cooperate, given its formation and substantive content, is fair overall at the point the parties first enter it. This test requires, for example, that when the parties enter into some agreement to cooperate, they do so willingly and having been in a relatively even bargaining position to one another. The principle also assumes that, absent special circumstances, the cooperating parties would strike an agreement by which they would receive a fair return on their investment over time. Otherwise, the agreement might have been the result of exploitation or undue pressure. At a second stage, which we may call ‘fairness in practice’, the principle asks if the parties acted fairly as their agreement unfolded in practice. This aspect of fairness asks of the content of the respective obligations of the parties after the agreed rules are put into effect. John Rawls explains the relevance of fairness in practice in the following way. He says that fairness creates obligations on the participants in a mutually advantageous cooperative venture to continue to acquiesce by its terms.59 As Rawls puts it: ‘we are not to gain form the cooperative labors of 55 T. Pogge 2008, 97–123. For a powerful account of these processes by an investigative journalist, see O. Bullough 2018. 56 See A. James 2012, 131. 57 A. James 2012, 91–93. 58 A. James 2012, 203–245. 59 J. Rawls 1999a, 96. Rawls was also referring to H. L. A. Hart 1955, 185. Jus Cogens (2020) 2:7–27 19 others without doing our fair share’.60 This goes beyond the basic fairness that was in place at the original starting point. Whether we are fairly treated by others depends on how they treated us in the process of cooperation over time. Although some of the ongoing cooperation will be based on the original rules and commitments, the relevant obligations will also arise from the conduct, practices and expectations created and relied upon by others after the cooperative project started. So a cooperative project may be fair to begin with but can fail to remain fair because of the subsequently unreasonable conduct of one of the parties. 5 Basic Fairness I now turn to a fuller discussion of the idea of basic fairness in the interaction among states. My focus remains the framework of multiparty cooperation and principles of corrective justice. We are not asking about the ideal distribution of shares or about a certain ratio of return to investment. No such ratio of ‘fair return’ exists in the absence of a central distributing mechanism. The outcomes of any trade agreements are determined by economic practice, or in effect by a mixture of political judgement, prudent decision-making and, of course, chance. Because cooperative justice is a matter of bilateral relationship structured around the parties’ actions, what we are looking for is a standard of wrongness in bilateral relationships. What is fair and what is unfair in cooperation among states? Basic fairness rules out terms of cooperation that impose unjustified inequalities, or terms that are the result of unfair imposi- tion, monopolies, cartels and other competitive restrictions.61 Any such terms must be void and unenforceable. Can we organize these intuitive wrongs in a more coherent whole, so as to cover less obvious but still real unfairness? There are many ways in which we can interpret fairness in trade agreements. One set of was provided, as we saw above, by Aaron James with reference to the world trade order. James argues that the relation among states must be subject to a principle of ‘international relative gains’ according to which: ‘gains to each trading society, adjusted according to their respective national endowments (e.g. population size, resource base, level of development), are to be distributed equally, unless unequal gains flow (e.g., via special trade privileges) to poor countries’.62 Why should the gains be in principle equal? James argues that ‘the gains of trade are socially created, by the joint practice of market reliance’.63 This of course is the starting point for the responsibility of states, although not a sufficient reason for equal shares. He goes on to say: ‘Because each trading country has a morally relevant interest in greater rather than lesser national income gains, equal treatment requires equal distribution of gains, unless we can specify a relevant difference among participating countries’.64 James identifies two such ‘relevant’ differences as possible grounds for inequality of gain. First, relevant endowments of each country, such as population size, natural resources and degree of economic develop- ment. Second, ‘inequality of gain is fair if greater benefits flow to people who are worse off in absolute terms’.65 60 J. Rawls 1999a, 96. 61 See J. Rawls 1999b, 42–43. 62 A. James 2012, 203. 63 A. James 2012, 221. 64 Ibid. 65 A. James 2012, 222. Jus Cogens (2020) 2:7–2720 I find James’ arguments for equal shares and for requiring priority for the worse off unconvincing. What James recognizes as the ‘endowments’ exception cannot be limited only to the features he sets out. Other considerations are relevant too. The performance of a state in trading with other states does not depend only on the state structures but also on the success of private parties: producers, entrepreneurs and workers that produce relevant tradeable products that appeal to consumers abroad. Economic success or failure cannot therefore be imputed only to each state and its institutions. As long as the background terms of fair competition are respected, the outcome of economic competition will be the result of the ‘endowments’ that James describes as well as of the capacity – flexibility, agility and resourcefulness – of firms in producing competitive products and services. This is why James’ principle of equality in outcomes seems to me at odds with his general framework. He seems to leave out the element of uncertainty inherent in economic competition. If we allow for the effects of economic competition, equality of outcomes cannot be a default position. A second argument for fairness is provided by Andrea Sangiovanni, who has offered a sophisticated argument about fairness in trade specifically in the context of the European Union.66 Sangiovanni takes an ‘internationalist’ view on the justice that applies to the EU. He believes that the best argument for justice in the EU proceeds from the reciprocal commitments the states have made to each other. Sangiovanni argues that: ‘According to reciprocity-based internationalism, demands for social solidarity at all levels of governance can be understood as demands for a fair return in the mutual production of important collective goods’.67 Fair return is required because in effect the states have jointly produced the collective goods brought about by the European Union. Sangiovanni’s proposal is to ask what would be a rational insurance policy in case the member states considered the terms of their cooperation in advance of entering into this cooperative project. He asks ‘…what do member states and their citizens owe one other as a fair return for the mutual provision of these goods and the mutual exposure to these risks— goods and risks made possible by opening up their markets, societies and polities to the joint control and supervision of both supranational actors and intergovernmental decision-mak- ing?’68 The answer for Sangiovanni is that the fair return ‘which members states owe one another, under member state solidarity, is given by the level at which each state would insure against the potential losses identified above had they known the distribution of risks but not their place in the distribution’.69 Sangiovanni argues that by asking how states would have insured against the ‘risks intrinsic to the project of European integration, had they not known what state they would have turned out to be’, we eliminate the advantage at the bargaining table of the European social contract obtained by the fact that member states know their relative position – including their level of development, population size, welfare regime, type, etc.70 This argument is ambiguous, however. It is not clear if it proposes ‘fair shares’ as distributive shares, or a system of minimum insurance against failure. A question of what fair shares are appropriate is, as we have seen, a distributive question. It argues for an appropriate allocation among the various parties. Insurance is by contrast a corrective question. It is not an allocation of shares but a provision of redress. 66 A. Sangiovanni 2013, 1–29. 67 A. Sangiovanni 2013, 5. 68 A. Sangiovanni 2013, 17. 69 A. Sangiovanni 2013, 17–18. 70 A. Sangiovanni 2013, 18. Jus Cogens (2020) 2:7–27 21 It seems to me that the distinction between distribution and insurance is not clear in Sangiovanni’s argument. The aim of insurance is to provide reparation for some loss insured against. It is not the allocation of fair or equal, or less unequal, distributive shares, all things considered. On the one hand, he speaks of an argument from insurance, but on the other, he is also seeking fair shares. I believe that his argument needs amendment to make clear that what is relevant is a basic form of insurance and not a form of distribution. If we are seeking to model our fair background conditions of basic fairness on the basis of a hypothetical insurance scheme, we must envisage returns triggered by a type of wrongful action, not merely inequality in outcomes. The redress must correspond to the wrongful loss actually incurred, or loss in comparison to the position one would have been without the wrong. Here is how, I believe, the argument for basic fairness among states must be restated. Remember that the relevant principle is corrective justice as it applies to cooperative projects. It is one a principle of distributive shares. We proceed by identifying the threshold of wrongful conduct which generates a one-off claim for redress from one party to another, not a general pattern of fair distribution that should be imposed when it fails to materialize in real life. I propose the following formulation as the appropriate standard of background cooperative fairness in trading among states, which I call the ‘symmetry principle’: The Symmetry Principle: An agreement to cooperate for the purposes of international trade in goods and services is unfair and potentially unenforceable, if it is shown to create asymmetrical opportunities for gain and risks of loss for the parties involved, taking into account the parties’ original position, endowments and prospects as the agreement was reached. Following the principle of symmetry, a structure of cooperation will be unfair, if it creates asymmetrical opportunities for gain and risks of loss. The symmetry here refers both to the level of risk but also the gravity of the injury it may cause. Irreparable harms must be given much higher value than temporary harms. Similarly, permanent gains (e.g. those associated with education or long term health) are to be assessed differently from transient gains, economic or social. The principle of symmetrical risks tries thus to capture the idea proposed by Sangiovanni through the insurance approach. This is the thought that an agreement is fair if the parties would have been able to agree it as sufficiently beneficial to them, had they entered it without full knowledge of their circumstances.71 The idea of symmetry of risks seeks to reflect the idea of reciprocity for states that are greatly unequal in size and economic size. Reciprocity entails a form of insurance for all parties: we ask what costs the member states would be willing to pay to offset the risks generated by the project of cooperation.72 There are also similarities here with a principle that Aaron James discusses by the name of principle of ‘reciprocity of risk’, which he eventually rejects. 73 James’ idea involves only risk of loss, not opportunity for gain. Yet, his account of reciprocity is the same idea as that behind the ‘symmetry principle’. One of the reasons he gives for rejecting the ‘reciprocity of risk’ 71 An analogy may be made between this argument and Rawls’ argument for the making of a constitution in a constitutional convention, in the Theory of Justice. This stage of law-making, for Rawls, was the second of a ‘four stage sequence’ where the parties were aware of their individual circumstances (whereas they were not in the ‘original position’ concerning the basic structure. 72 The logic of an insurance calculation is the same as set out by A. Sangiovanni 2013, 18. 73 A. James 2012, 233–237. Jus Cogens (2020) 2:7–2722 principle is that ‘current trade practice is clearly a situation of non-reciprocal risk’. This, however, is not a reason to reject the principle. He also notes that symmetry of risks is compatible with terrible losses for both sides, if they are symmetrical.74 This argument fails, however, for another reason. If a cooperative agreement is open to massive losses of the kind that James has in mind, it will not be struck at all, at least not if we rule out imposition, deception and the like. The underlying idea behind the symmetry principle is a requirement of reciprocity. In the philosophical literature, reciprocity commonly refers to the requirement that one returns a benefit they have received from another.75 In his defence of reciprocity as an ideal of private law, Arthur Ripstein introduces it as follows: ‘The root idea, fundamental to both fair terms of interaction and the idea of responsibility, is one of reciprocity, the idea that one person may not unilaterally set the terms of his interactions with others’.76 This is a distinct matter from that of keeping a promise. A promise or an exchange of promises creates obligations by virtue of itself alone. Reciprocity creates obligations by virtue of rendering a benefit to another, irrespective of a promise. The economist Serge-Christophe Kolm, for example, begins his wide-ranging study of reciprocity with a definition that stresses that reciprocity goes beyond a ‘binding exchange agreement’.77 Reciprocity applies beyond agreements, when, for example, no agreement exists or the one that exists has failed to meet a fair measure of equal return among the parties. In those cases, the reason to offer something – or the motivation– is independent of any promise or other undertaking. Some key examples Kolm discusses, for example, are the reciprocity of giving and receiving gifts or reciprocity in family relations. Philosophers today deploy reciprocity as a political ideal when they discuss the design of a social contract or give a similar egalitarian basis for social life. John Rawls, for example, explicitly discussed reciprocity alongside legitimacy. He links the idea of a reasonable person with a recognition of the value of reciprocity as follows: ‘Reasonable persons [are moved by a desire for] a social world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that reciprocity should hold within that world so that each benefits along with others’.78 In light of the disagreements, we expect to have with others about the terms of cooperation, legitimate political power of one person over another requires that: ‘our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason’.79 For this view, political power must fulfil a criterion of reciprocity, in that citizens must reasonably believe that all can reasonably accept a particular set of institutions. Reciprocity is therefore at the heart of corrective justice. As Aristotle put it, voluntary exchanges or instances of cooperation raise issues of corrective justice regarding voluntary transactions.80 For Aristotle, justice in voluntary transactions involves not simply keeping their parties to their word by way 74 A. James 2012, 235. 75 See J. Rawls 1999c, 190. 76 A. Ripstein 1999, 2. 77 ‘Reciprocity is treating other people as other people treat you voluntarily and not as a result of a binding exchange agreement’; S. C. Kolm 2008, 1. 78 J. Rawls 1993, 50. 79 J. Rawls 1993, 137. 80 Aristotle 1926, 273, (‘διορθωτικόν δίκαιον, εν τοις συναλλάγμασι τοις εκουσίοις’). Jus Cogens (2020) 2:7–27 23 of a formal equality – as in a simple commercial contract – but at the same time by being willing to preserve proportionate equality in the fruits of joint activity or cooperation.81 6 Conclusion When the European Monetary Union was first proposed, it hoped that the common currency would create conditions of economic and political convergence among the member states.82 Looking back, it is clear that this aim has not been achieved. The Eurozone today is fragmented between states of the ‘core’ that have low unemployment, high rates of investment and healthy growth and states of the ‘periphery’, which have high unemployment – especially among the young – low levels of savings and investment and very low rates of growth. Some of the most distinguished commentators have linked this failure to the Eurozone’s original design. 83 The American economist Kenneth Rogoff, who has co-authored one of the leading studies of financial crises,84 has given a categorical rejection of the Eurozone’s design. He has said that ‘the problem at the heart of the euro crisis’ is that ‘the eurozone is a half-built house’ and that ‘it was a catastrophic mistake to put monetary union ahead of fiscal and political union’.85 The absence of central fiscal policy, for Rogoff, meant that European policy makers did not have the tools to address the crisis. He concluded: ‘Monetary policy is simply one side of fiscal policy. Monetary union without fiscal union is an accident waiting to happen’.86 Similarly, the distinguished economist C. Fred Bergsten wrote that ‘the European crisis is rooted in a failure of institutional design’ and that ‘the absence of crucial policy tools constrained Europe’s ability to reach a solution quickly, triggering severe market reactions that continue to this day’.87 If these economists are right, then there is a clear case of ‘structural responsibility’ burdening all the original members of the Eurozone. They must all be held responsible for creating an economic practice with potentially disastrous consequences for some of them. Twenty years after the Euro came to being, the economies of Greece, Italy and Spain are now caught in a vicious circle of low growth, high indebtedness and high unemployment.88 These states cannot now leave the Euro without running even more serious risks of economic collapse, which would set back their own economic recovery even further. This is a loss that demands redress, if it has been caused by an unfairly burdening overall structure. If we accept these leading economists’ arguments, we can see that the financial assistance programmes were at least part of a required redress for unfairness. Given that the crisis had systemic roots in a collective failure, the rescue operations can be seen as the appropriate moral response. Since the loss was caused by the design of the cooperative project, the principle of structural responsibility must take effect. The programmes 81 Aristotle 1926, 8. 82 The main case for the Euro had been made in the European Commission’s paper, One Market: One Money; An evaluation of the potential benefits and costs of forming an economic and monetary union, 1990. For the history of the creation of the EMU see H. James 2014. 83 See the thorough analysis by Franks et al. 2018. 84 Reinhart and Rogoff 2009. 85 K. S. Rogoff 2018. 86 K. S. Rogoff 2018. 87 C. F. Bergsten 2012, 216. For similar views on the structural nature of the Eurozone’s failings, see Moravcsik 2012, 54–68 and J. Pisani-Ferry 2014. 88 For a telling summary of the Eurozone’s division between North and South, see D. Ball 2018. Jus Cogens (2020) 2:7–2724 are manifestations of morally required solidarity under a symmetry principle: they compen- sated the burdened member states for the loss caused by the structural flaws of the Eurozone’s design (although they, arguably, also took into account those member states’ own contributory culpability in not doing enough to avoid the worst aspects of the crisis during the boom years). If this argument is correct, then the financial assistance programmes were not merely exercises in self-preservation and economic prudence. They were also expressions of a new form of solidarity generated by the economic cooperation of European states under common principles of corrective justice. Acknowledgements This paper was written while I was a visiting research fellow at the Bank of Greece in 2017–2018. I am very grateful to Heather Gibson, Christina Tsochatzi, Christos Hadjiemmanuil, Dimitris Malliaropoulos and the research team at the Bank of Greece for their extremely valuable assistance, comments and discussions, including at a series of three seminars, which I gave there. I am also very grateful to Menelaos Markakis and Michalis Ioannidis for their very useful comments on an earlier draft. Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/. References Alexy R (2009) The argument from injustice: a reply to legal positivism. Oxford University Press, Oxford Aristotle (1926) Nicomachean Ethics, H. Rackham (trans.). Loeb Library, Harvard University Press, Cambridge Ball D (2018) Aftereffects of Eurozone Crisis Plague Europe’s South’ Wall Street Journal, available at: https://www.wsj.com/articles/aftereffects-of-eurozone-crisis-plague-europes-south-1527879732. Accessed 01 Oct 2019 Bantekas I, Vivien R (2016) On the odiousness of Greek debt. Eur Law J 22(4):539–565 Bergsten CF (2012) Why the Euro will survive, Foreign Affairs, available at: https://www.foreignaffairs. com/articles/europe/2012-09-01/why-euro-will-survive. Accessed 01 Oct 2019 Bjorge E (2015) The Vienna rules, evolutionary interpretation, and the intentions of the parties. In: Bianchi A, Peat D, Windsor M (eds) Interpretation in international law. Oxford University Press, Oxford, pp 342–347 Browne J, Johnson P, Phillips D (2016) The budget of the European Union: a guide: IFS briefing note BN181. Institute of Fiscal Studies, London Brunnermeier MK, James H, Landau J-P (eds) (2016) The euro and the battle of ideas. Princeton University Press, Princeton Bullough O (2018) Moneyland: why thieves and crooks now rule the world and how to take it Back. Profile Book, London Campos T (2017) The global health crisis: ethical responsibilities. Cambridge University Press, Cambridge de Búrca G (2005) Towards European welfare? In: de Búrca G (ed) EU law, and the welfare state: in search of solidarity. Oxford University Press, Oxford de Witte F (2008) Justice in the EU: The Emergence of Transnational Solidarity. Oxford University Press, Oxford di Fabio U (2014) Karlsruhe makes a Referral. Ger Law J 15:107–110 Dorr O, Schmalenbach K (eds) (2011) Vienna Convention on the Law of Treaties. Springer, Berlin Dworkin R (1986) Law’s Empire. Harvard University Press, Cambridge Eleftheriadis P (2007) The Idea of a European Constitution. Oxf J Leg Stud 27(1):1–21 Englard I (2009) Corrective and Distributive Justice: From Aristotle to Modern Times. Oxford University Press, Oxford Jus Cogens (2020) 2:7–27 25 https://www.wsj.com/articles/aftereffects-of-eurozone-crisis-plague-europes-south-1527879732 https://www.foreignaffairs.com/articles/europe/2012-09-01/why-euro-will-survive https://www.foreignaffairs.com/articles/europe/2012-09-01/why-euro-will-survive European Commission (1990) One Market: One Money; An evaluation of the potential benefits and costs of forming an economic and monetary union, available at: https://ec.europa.eu/info/business-economy- euro/economy-finance-and-euro-publications_en. Accessed 01 Oct 2019 Fabbrini F (2016) Economic governance in Europe: comparative paradoxes and constitutional challenges. Oxford University Press, Oxford Forst R (2015) Justice, democracy and the right to justification: reflections on Jürgen Neyer’s normative theory of the European Union. In: Kochenov D, de Búrca G, Williams A (eds) Europe’s Justice Deficit? Hart Publishing, London, pp 227–234 Franks J, Barkbu B, Blavy R, Oman W, Schoelerman H (2018) Economic convergence in the Euro area: coming together or drifting apart? In: IMF Working Paper, 18/10. International Monetary Fund, Washington, DC Habermas J (2013) The crisis of the European Union: a response. Polity Press, Cambridge Habermas J (2015a) Democracy, solidarity, and the European crisis. In: van Middelaar L, van Parijs P (eds) After the Storm: How to Save Democracy in Europe. Lannoo, Tielt Habermas J (2015b) The lure of technocracy. Polity Press, Cambridge Hart, H. L. A. (1955). Are there any natural rights? Philosophical Review 64 (2):175-191. Herman B (1984) Mutual aid and respect for persons. Ethics 94(4):577–602 Herman B (2012) Being helped and being grateful: imperfect duties, the ethics of possession, and the unity of morality. J Philos 109(5–6):391–411 Hinarejos A (2015) The Euro area crisis in constitutional perspective. Oxford University Press, Oxford, Oxford Howse R (2007) The concept of odious debt in public international law: UNCTAD Discussion Papers, No. 185. United Nations, New York James A (2012) Fairness in Practice: A Social Contract for a Global Economy. Oxford University Press, Oxford Joerges C (2017) Social justice in an ever more diverse union. In: Vandenbroucke F, Barnard C, de Baere G (eds) A European Social Union after the Crisis. Cambridge University Press, Cambridge, pp 92–119 King J (2016) The Doctrine of Odious Debt in International Law: A Restatement. Cambridge University Press, Cambridge Kolm SC (2008) Reciprocity: An Economics of Social Relations. Cambridge University Press, Cambridge Küçük E (2016) Solidarity in EU law: an elusive political statement or a legal principle with substance? Maastricht Journal of European and Comparative Law 23:965–983 Mody A (2018) Eurotragedy: A Drama in Nine Acts. Oxford University Press, Oxford Moravcsik A (2012) Europe after the crisis: how to sustain a common currency. Foreign Aff 91(3):54–68 Nagel T (2005) The problem of global justice. Philos Public Aff 33(2):113–147 Neyer J (2012) The justification of Europe: a political theory of supranational integration. Oxford University Press, Oxford, pp 35–55 Neyer J (2015) Justice and the right to justification: conceptual reflections. In: Kochenov D, de Búrca G, Williams A (eds) Europe’s Justice Deficit? Hart, Oxford, pp 211–226 O’Leary S (2005) Solidarity and citizenship rights in the charter of fundamental rights of the European Union. In: De Burca G (ed) EU Law, and the Welfare State: In Search of Solidarity. Oxford University Press, Oxford, pp 39–87 Pisani-Ferry J (2014) The Euro Crisis and its Aftermath. Oxford University Press, Oxford Pogge T (2008) World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, 2nd edn. Polity, Cambridge Rawls J (1993) Political Liberalism. Columbia University Press, New York Rawls J (1999a) A Theory of Justice, Revised edn. The Belknap Press Harvard University, Cambridge Rawls J (1999b) The Law of Peoples. Harvard University Press, Cambridge Rawls J (1999c) Justice as Reciprocity. In: Rawls J, Freeman S (eds) Collected Papers. Harvard University Press, Cambridge Reinhart CM, Rogoff KS (2009) This Time is Different: Eight Centuries of Financial Folly. Princeton University Press, Princeton Ripstein A (1999) Equality, Responsibility, and the Law. Cambridge University Press, Cambridge Rodrik D (2011) The Globalization Paradox. Oxford University Press, Oxford Rogoff KS (2018) Crash Time, Project Syndicate, available at: https://www.project-syndicate.org/onpoint/crash- time-by-kenneth-rogoff-2018-09?barrier=accesspaylog Ross M (2010) Solidarity – a new constitutional paradigm for the EU? In: Ross M, Borgmann-Prebil Y (eds) Promoting Solidarity in the European Union. Oxford University Press, Oxford, pp 23–45 Sangiovanni, Andrea (2013). Solidarity in the European Union. Oxford Journal of Legal Studies 33 (2):213-241. Scharpf FW (2002) The European social model: coping with the challenges of diversity’. J Common Mark Stud 40:645–670 Simmonds NE (2007) Law as a Moral Idea. Oxford University Press, Oxford Sinn HW (2014) The Euro Trap: On Bursting Bubbles, Budgets, and Beliefs. Oxford University Press, Oxford Jus Cogens (2020) 2:7–2726 https://ec.europa.eu/info/business-economy-euro/economy-finance-and-euro-publications_en https://ec.europa.eu/info/business-economy-euro/economy-finance-and-euro-publications_en https://www.project-syndicate.org/onpoint/crash-time-by-kenneth-rogoff-2018-09?barrier=accesspaylog https://www.project-syndicate.org/onpoint/crash-time-by-kenneth-rogoff-2018-09?barrier=accesspaylog Somek A (2015) The Preoccupation with Rights and the Embrace of Inclusion: A Critique. In: Kochenov D, de Búrca G, Williams A (eds) Europe’s Justice Deficit? Hart, Oxford, pp 295–310 Stiglitz J (2002) Globalization and its Discontents. Penguin, London Stiglitz JE (2016) The Euro: How a Common Currency Threatens the Future of Europe. New Norton, New York Summers RS (2000) The Conceptualization of Good Faith in American Contract Law. In: Zimmermann R, Whittaker S (eds) Good Faith in European Contract Law. Cambridge University Press, Cambridge, pp 118–144 Tuori K, Tuori K (2014) The Eurozone Crisis: A Constitutional Analysis. Cambridge University Press, Cambridge United Nations (2002) Decision regarding delimitation of the border between Eritrea and Ethiopia, XXV Reports of International Arbitral Awards, available at: https://legal.un.org/riaa/cases/vol_XXV/83-195.pdf. Accessed 15 Sept 2019 Vandenbroucke F (2017) The Idea of a European Social Union: A Normative Introduction. In: Vandenbroucke F, Barnard C, de Baere G (eds) A European Social Union after the Crisis. Cambridge University Press, Cambridge, pp 3–46 Walker N (2015) Justice in and of the European Union. In: Kochenov D, de Búrca G, Williams A (eds) Europe’s Justice Deficit? Hart, Oxford, pp 247–258 Weatherill S (2016) Law and Values in the European Union. Oxford University Press, Oxford Weinrib EJ (2012) Corrective Justice. Oxford University Press, Oxford Williams A (2010) The Ethos of Europe: Values, Law and Justice in the EU. Cambridge University Press, Cambridge Jus Cogens (2020) 2:7–27 27 https://legal.un.org/riaa/cases/vol_XXV/83-195.pdf Corrective Justice Among States Abstract From Fairness to Solidarity Distributive Claims Distributive and Corrective Justice Structural Responsibility Basic Fairness Conclusion References 
work_lb46hwppbbf45h7lo42envssky	----	DOCUMENT RESUME ED 351 222 SO 022 322 AUTHOR Connell, R. W. TITLE Citizenship, Social Justice & Curriculum. PUB DATE 92 NOTE 19p.; Paper presented at the International Conference on Sociology of Education (Westhill, United Kingdom, January, 1992). PUB TYPE Information Analyses (070) Speeches/Conference Papers (150) EDRS PRICE MF01/PC01 Plus Postage. DESCRIPTORS Access to Education; *Citizenship; Citizenship Education; Comparative Education; Developed Nations; Educational Philosophy; Educational Policy; Educational Sociology; *Educational Theories; *Elementary School Curriculum; Elementary Secondary Education; *Equal Education; Foreign Countries; International Education; *Justice; *Secondary School Curriculum; Social Theories; Social Values IDENTIFIERS *Australia ABSTRACT Equal access to education is not enough to guarantee that all students are receiving the same quality education. Curricular knowledge does not exist value-free; it is affected by the context in which it exists--with teachers, school officials, syllabus committees, and education policymakers, among others, influencing the social process through which students are educated. This paper is concerned with social justice in education, and contends that the curriculum and teachers' work should be given central roles in bringing it about. A model of curricular justice that is based on three priaciples is proposed. First, in order to prepare all citizens for participation in democracies, social justice requires that a common curricula must be provided to all students. Such an education ideally would involve ungraded and cooperative learning practices in respect to the common curriculum. Second, since the current curriculum embodies the interests of the most advantaged, social justice requires a "counter-hegemonic" curriculum, designed to embody the interests and perspectives of the least advantaged. The third criterion involves the recognition that as well as imparting knowledge, educators engage in a process of producing and reproducing social relationships. This means that "equality" cannot be static; it is always being produced or reproduced in greater or lesser degrees. This criterion of curricular justice involves producing educational strategies that produce greater equality in the whole set of social relationships to which the educational system is linked. A list of 34 references is included. (DB) *********************************************************************** Reproductions supplied by EDRS are the best that can be made from the original document. *********************************************************************** IP; CITIZENSHIP, SOCIAL JUSTICE & CURRICULUM . Paper to International Conference on Sociology of Education, Westhill, January 1992 R.W. Connell Professor of Australian Studies, Harvard University 560 William James Hall 33 Kirkland St., Cambridge, MA 02138, USA BEST COPY MIME U.S. DEPARTMENT OF EDUCATION Office of Educational Research and improvement EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) T is document has been reproduced as owed from the person or organization originating it C Minor Changes have been made to improve reproduction quality Points of view or opinions stated in this docu- ment do not necessarily represent official OERI position or policy "PERMISSION TO REPRODUCE THIS M ERIAL HAS BEEN GRANTED BY Al& TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC)." 2 Introduction The idea of 'citizenship' everywhere has two faces, and nowhere are they more sharply contrasted than in education. On the one hand citizenship appears as a principle of regulation and social control, casting citizens into standardized relations of obedience and orderliness. One sees children at the start of the day in North American schools, eyes fixed on the flag, hands over hearts, reciting a 'pledge of allegiance' which is written to sound like a legal or religious declaration. On the other hand citizenship appears as a claim of rights, as a demand by the excluded for access and participation. So one sees an adult literacy class of agricultural workers in the Brazilian north-east, the educational process being an essential step towards their economic and political advance. In the United States at present there is controversy about transferring funds from school districts serving the wealthy to school districts serving the poor. The 'Robin Hood' policy would not have got off the ground at all without a concept of citizenship to legitimate the claim for equal treatment. In this paper I will be exploring the second face of citizenship, the claim for social justice in education. I will argue that the way the issue is commonly treated misses what is specifically educational about education, and fails to deal with the main way inequality is produced in Western education systems--through curriculum effects. I will mainly use examples from Australian education, that being the system I have studied most; but the argument applies to all Western educational systems in affluent capitalist countries (and to parallel processes in other contexts). `Social justice and education' as a distributive question Questions about 'education and justice' are not new. In the Western philosophical tradition the first great treatise on education, Plato's Republic, was also the first great treatise on justice. In neo-Confucian China, the legitimacy of the scholar-official system of government flowed from open selection to the elite by literary exams. But we would hardly rest our current ideal of education on elite concepts like Plato's guardians or Confucian mandarins. In modern discussions the issue of 'education and justice' has 3 3 been framed in another way. Debates centre on the service provided to the whole population by a mass education system, and are posed as questions of distributive justice. Questions of 'distributive justice' are questions about who gets what--particularly, who gets how much of some social good. The most familiar 'social good' is money, and the distribution of wealth and income is much debated. For instance, recent research estimates that the richest 5% of Australians own about 50% of the total private wealth, and such figures always raise argument as to whether too much wealth is concentrated in too few hands. That is the classic form of an argument about distributive justice: do some people have too much, others too little? As Walzer (1983) has shown, distributive questions can be raised about a whole series of `social goods': money, welfare, office, leisure, love, grace, recognition--and education. (In what follows, I use the term 'justice' in the sense of Walzer and of Rawls (1971), as a question of fairness in distribution for which the normal criterion is equality. There is another common usage of 'justice' in which it refers to getting what one deserves--for instance in `criminal justice', or 'wage justice'. For the case of social justice in education, the two usages converge. 'Deserts' of individuals may differ markedly, as the criminal law presumes; but it is difficult to see how a whole social group can deserve either more or less education than another social group; so this conception too points to equality. But there is a risk, in emphasising equality in distribution, that it will be seen only as a matter of individual rights. So I confess also to a touch of Platonism, and emphasise that individual equality is the condition, not the goal, of a just social order. The quality of our collective life is central to the argument.) Over the last 150 years or so, in 'Western' and Western-influenced societies, questions of justice in education have mainly been about access to formal schooling and certification. The 150 years is, roughly, the life-span of state-funded, bureaucratically-controlled mass elementary school systems. Mass elementary schooling has everywhere coexisted with a much more selective (sometimes private) provision of secondary and higher education. Out of this history came two great questions of distributive justice. The :first was whether to provide elementary education for the whole population (an issue now settled in countries like Australia, far from settled in countries like India). The second was about fair access to the selective upper levels of formal education. Secondary schooling was the focus of this issue in industrialised countries for most of this century, but now higher education increasingly is the 4 focus. We see debates hotting up about university enrolments and overall funding--that is, how much access there shall be; and about university fees and rich students buying university places- that is, about who shall have access. These distributive questions underlie the two great enterprises in educational justice that have been undertaken in the last generation. On a world scale, justice is pursued by the creation of universal elementary school systems, and the attempt at universal literacy, in poor countries. In affluent countries like the United States, Britain and Australia, the attempt is made to establish `equal opportunity' in education via scholarships, compensatory education, desegregation, affirmative action, Assisted Places shemes, etc. In Australia the Disadvantaged Schools Program is the best known example of this attempt (Connell, White and Johnston, 1991). Both of these enterprises generally take the content and form of education for granted. The 'social good' they seek to distribute is the educational service provided by bureaucratically- controlled mass schooling systems of the type created in Europe and North America in the mid 19th century. The debates about justice are about who gets how much of this service (as measured, for instance, by that staple variable in survey research, 'years of education'). What the service is, is debated in a separate theatre altogether - -the, theatre of curriculum theory, teaching method and the psychology of learning. This becomes very clear when education authorities make explicit statements about their efforts on behalf of the disadvantaged. In the late 1980s the Australian Labor Party, faced with an increasingly disillusioned rank-and-file, sought to formulate a 'social justice' policy. Education was included in the resulting policy statements, which are important as the clearest recent formulations of the issue of justice in Australian education. A careful look at these documents shows that they remain within the distributive framework. Here, for instance, is the 'overall objective' of equity policy in higher education as formulated in A Fair Chance For All: To ensure that Australians from all groups in society have the opportunity to participate successfully in higher education. This will be achieved by changing the balance of the student population to reflect more closely the composition of society as a whole. (Department of Employment, Education and Training, 1990) Such statements raise scarcely any questions about what kind of education is being provided; that is taken for granted. The issue they address is who gets how much of the familiar product. 5 Distrilxtion and content The underlying weakness of this approach to educational justice is its indifference to the nature of education itself. For education is a social process in which the 'how much' cannot be separated from the 'what'. There is an inescapable link between distribution and content. I learnt this in the research for M&IgtheDilfeitse.Difference (Connell, Ashenden, Kessler and Dowsett, 1982). Starting from the idea that the unequal distribution of education between social classes had to do with differences between working-class and ruling-class families, we found this was so only because they had different relationships with a particular kind of curriculum. The hegemonic curriculum in Australian high schools has a class history embedded in it, and operates to include and exclude students on class lines. Broadly similar conclusions were being reached on the basis of research in France, the United States, Britain and Canadq (cf. Whiny 1985). It follows that justice cannot be achieved by distributing the same amount of this standard good to children of all social classes. Education is not an object, like a bag of wheat or a computer; it is a human social relationship. That 'good' means different things to ruling-class and working-class children, and will do different things for them (or to them). This is a crucial point, and one where the argument often stalls. Surely knowledge is knowledge, science is science, great literature is great literature--and the school (on behalf of the society) wants children to acquire them? To understand the problem, we must look at where curricular knowledge comes from. The case of natural science is instructive. As Kuhn (1970) and other historians and sociologists of science have shown, scientific knowledge does not exist as isolated facts, and is not produced by isolated geniuses struck by wandering apples. Scientific knowledge comes in large chunks- paradigms, disciplines, theories, research programs, etc.--and is produced in a highly organised social process. Research communities, research institutions, communications networks, are the vital social mileux for scientific knowledge to be produced. These social milieux are located in social structures, and are necessarily shaped by them. There is a powerful (though complex) link between the rise of modern physical science and the rise of modern capitalism. Some fascinating recent research has shown there is also a link with gender (Harding 1986, Keller 1985, Merchant 1983). Western physical sciences were constructed specifically by men, through practices and understandings reflecting men's dominant place in the 6 social and natural world. In areas like medical science this involved a conscious, and largely successful, attack on healing practices and understandings of health associated with women. Once produced, knowledge still has to be selected or compiled to make a curriculum. This too is a social process, it is not done in heaven by a committee of epistemological angels. Another fascinating body of historical research has traced the creation of school 'subjects' like `geography' by inquiries, syllabus committees, academic entrepreneurs, and bureaucrats (Goodson 1985, 1988). Research has traced struggles for space in the schools' offerings, struggles over prestige and dominance for particular bodies of knowledge. Herbert Spencer's 1859 essay 'What Knowledge is of Most Worth?', arguing the case for natural science against classics, is one of the great moments in this struggle. Taken-for-granted ideas about what are `basic skills', what are the `core' areas of knowledge, how knowledge itself is divided, are all the products of an intricate politics shaped by the wider distribution of social power. Once compiled, curriculum knowledge does not float about the school as a kind of academic ectoplasm. It is a curriculum only so far -.s it is embodied in the school's educational practices. Curriculum is not only a statement of what is to be learnt by the students, it is also a definition of the teacher's work--it describes a labour process (Connell 1985, AppleVig ). It is therefore unavoidably shaped by the organisational and industrial imperatives of the school and school system, and by the occupational and professional needs of teachers as a workforce. A key product of these imperatives is a system of assessment and educational selection. The importance of assessment in controlling and shaping curriculum knowledge is historically shown in the role of matriculation-level examinations, from the Leaving Certificate to the Higher School Certificate, in shaping Australian secondary education as a whole (Clarke 1987, 1990; WF Connell 1991). It is currently shown by the importance that conservatives in the United States, up to and including President Bush, attach to the installation of a national standardized testing system as a means of control over schools. Assessment systems are potent because they shape the form of the curriculum as well as its more obvious content. An individualized, competitive assessment system shapes learning as the individual appropriation of reproducible items of knowledge and the individual cultivation of skills. This has important consequences for justice. Such a conception of learning produces, as 7 a cultural effect, a belief in the unequal educational merit of individual students--as, for a wide variety of reasons, their appropriation of knowledges and cultivation of skills proceeds at different paces and along different paths. In turn the conception of unequal merit (intelligence, learning capacity, talent, diligence, educability, achievement--there are innumerable variants on the idea) validates unequal offers of education. Streaming, tracking, talented child programs, selection for university, scholarships, honour!. programs, selective high schools, assisted places schemes, accelerated promotion--indeed most of the affronts to substantive equality of provision in public schooling--are routinely justified by the notions of unequal merit which are generated by the competitive academic curriculum and its individualized competitive assessment system. This justification is now so routine that we see the astonishing spectacle of educational 'reformers' claiming that 'talented children' (most of whom come from advantaged social groups) are among the disadvantaged unless they get a special deal which will increase their advantages. Here the social agenda embedded in a particular curriculum form has suddenly become visible. It is also highly visible where the curriculum is exotic and new. In many third-world countries the importation of Western education, centered on the familiar academic curriculum and individualized assessment, has resulted in severe struggles for educational advantage. And in every part of the world where the social consequences have been investigated, class inequalities are found (see eg. Foster 1980). The issues are global in scale. Curricular justice: three principles These facts about education systems require us to re-think 'social justice in education' in ways that give a central place to curriculum, and thus to teachers' work. We need an account of what might be called curricular justice. Such a concept, based on the way social effects are embedded in the curriculum-as-practised, would give us guidelines for building-in considerations of justice while making and remaking curricula. I wish to suggest three principles that, taken together, might constitute a model of curricular justice. (1) Participation and common schooling. School systems commonly claim, in statements 8 of goals, to be preparing future citizens for participation in a democracy. Thus the Australian Education Council, the ministers of education in Australian state and federal governments, included in their recent declaration of ten 'National Goals' for Schooling in Australia: To develop knowledge, skills, attitudes and values which will enable students to participate as active and informed citizens in our democratic Australian society within an international context. (Australian Education Council 1989) If we take this purpose seriously, it has major implications for curriculum. The notion of `democracy' implies collective decision-making on major issues in which all citizens have, in principle, an equal voice. Major issues in modern states include war and peace, investment, employment policy, urban development and environmental protection, sexual violence, social welfare provision, the content of mass communication, and the design of education systems. To be active participants in such decision - making requires a range of knowledge and skills (including the skill of getting more knowledge). This range is required for all citizens, as Walzer forcefully argues. You cannot have a democracy in which some 'citizens' only receive decisions made by others. That is why feminists are right in pointing out that a society in which men routinely exert control over women is no democracy (for the history of this issue see Pateman 1988). Here then is the basis of a common curriculum which must be provided to all students as a matter of social justice. This is a much stronger criterion than the invocations of 'democracy' in Corporate Goals imply. This criterion rules out all selection, competitive assessment, streaming and classifying mechanisms in schooling while the common curriculum is in operation, since such mechanisms would tend to differentiate content and therefore advantage some citizens over others. It points, rather, to ungraded and cooperative learning practices in respect of the common curriculum. They should be cooperative, since all participating citizens are advantaged (as citizens of a democracy) by each others' learning. In this respect, justice would be significantly advanced by banning all grading and competitive testing during the compulsory years of schooling. Since a necessary part of the knowledge and skills of participants in democracy is an understanding of the cultures and in%!.rests of the other pa,tcipants, this criterion also rules out curricula produced from a single socially-dominant standpoint. It points firmly towards the 9 principle of the 'inclusive curriculum' proposed by Blackburn and others (1985): curricula which include and validate the experiences of women as well as men, Aborigines as well as whites, workers as well as professionals. The attempt to produce a 'diverse' or 'multicultural' curriculum in the United States, currently resisted by conservatives with rhetoric against 'political correctness', is clearly supported by this principle. (2) The interests of the least advantaged. Rawls in A Theory of Justice (1971) proposes that education must specifically serve the interests of the 'least favoured' groups in society., The principle of advantaging the least advantaged is central in Rawls' general theory, and captures what is usually meant in public politics by talk of 'social justice', even in the limited sense of Social Justice policy statements. This principle too has strong implications for curriculum. They become clear when we think about the social history of curriculum and the way the current hegemonic curriculum embodies the interests of the most advantaged. Justice requires a counter-hegemonic curriculum, designed to embody the interests and perspectives of the least advantaged. What this might mean concretely is being worked out by teachers in a variety of settings: the Disadvantaged Schools Program, multicultural education, programs for girls, Aboriginal education, certain adult literacy programs. In this paper I can only gesture towards this important work and make two general points about it. First, social justice is not satisfied by curriculum ghettos. Separate-and-different curricula have some attractions, but leave the currently hegemonic curriculum in place. Social justice requires moving out from the starting-point to reconstruct the mainstream to embody the interests of the least advantaged in a generalized way. (For the logic of counter-hegemonic curriculum, see Connell 1988). Second, social justice is not satisfied with one counter-hegemonic project. Contemporary social science recognises, as contemporary social practice does, a number of major patterns of inequality: gender, class, race, ethnicity, and (on a world scale) nationality. Curricular justice requires counter-hegemonic projects across this whole spectrum. In practice there will be great diversity in what is undertaken. I am not trying to lay down a blueprint here, but to indicate the scope of the principle of curricular justice. No institutionalized pattern of social inequality is in 10 principle exempted from it. To recognise that knowledge can be organised differently, and that different ways of constructing it will advantage and disadvantage different groups, is to risk falling into relativism. There have been education systems where the political outcome is the key criterion for curriculum choice. It is important to avoid this, as it would abandon the element of independent truth in, for instance, scientific accounts of the world; and therefore the possibility of critique of the political agenda itself. (To notice that these accounts are shaped by gender and class is not to say that gender and class is their only content; they also document an encounter of a gender-and-class- shaped consciousness with the natural world.) The principle of the interests of the least advantaged provides a clear motive for avoiding relativism, since it cannot be in their interest to continue being excluded from that knowledge of the natural world that is embodied in conventional science. A counter-hegemonic curriculum must include the generalisable part of the conventional curriculum, guaranteeing all students access (hopefully, critical access) to scientific methods and findings. (3) The historical production of equality. There seems to be a contradiction between the criterion of participant citizenship, requiring common curriculum, and the principle of pursuing the interests of specific groups, the least advantaged. This could logically be resolved by using one of Rawls' devices and introducing a 'lexical ordering' of the principles of curricular justice. Thus we might say that participation has priority, and the criterion of the least advantaged applies after the participation criterion is satisfied. This would rapidly lead to educational absurdity. It would assume the curriculum can be partitioned into 'participant citizenship' and 'counter- hegemonic' bits, a distinction that is impossible to maintain in the realties of teachers' daily work in schools. If a counter-hegemonic criterion is to be practically useful it must apply to the same educational processes that the participant citizenship criterion applies to, and we must find a way to think these criteria together. The tension between them can be handled (though not eliminated) if we take note of the historical character of the social structures producing inequality. Their `existence' is not that of objects like stones or planets, but is a process of producing and reproducing social relationships. 1 1 This means that 'equality' cannot be static; it is always being produced in greater or lesser degrees. We must think of the social effects of curriculum as the historical production of more (or, as the case may be, less) equality. Participant citizenship and counter-hegemonic criteria can now be seen as elements in the same historical process; we deal with the tension between them in making strategic judgments about how to advance equality. The criterion of curricular justice is the tendency of an educational strategy to produce more equality in the whole set of social relations to which the educational system is linked. It is difficult to give a capsule example of such a complex set of relationships, but the general idea might be illustrated by Australian educational intervention in South-East Asian countries. In recent years this has come to be seen as an export industry based on fee-paying students. The 'export' of Australian education to South-East Asia in such terms reproduces over time the privileges of the urban elites in those countries, who can afford to buy professional education for their children. It promotes development, but not democratic control of development. As Duke (1986) points out, its social consequences are quite different from those of aid which works at the village level through informal adult education and institution-building. This kind of education functions to raise the villagers' capacity to articulate their own needs and pursue them over time. One is not surprised to find the elite model is more acceptable to the governments of affluent Western countries. Unjust curricula Principles of curricular justice should help in a negative way too, to identify aspects of educational practice that should be opposed. (1) The principle of participant citizenship is negated when the curriculum include practices which allow some groups to gain a greater share in social decision-making. This may be direct or indirect. Directly, formal education gives social advantages through credentialism, where educational certification is linked to closed labour markets. Curricular practices that give particular social groups superior access to credentials (e.g. academic streaming, which is known to be class- and race-linked) are to that extent unjust. Indirectly, education may give background legitimacy to the authority or power of 12 advantaged social groups. Privileged classes are legitimated where their representatives are given particular authority in curriculum decision-making e.g. elite private schools having representatives on boards and committees that determine system-wide curriculum guidelines, where disadvantaged schools have no such representatives. The privileged position of men in gender relations is legitimated (among many other ways) by physical education curricula which highlight competitive sports; given that the main competitive sports are showcases of a dominating masculinity and have the effect of 'naturalising' the superiority of men over women (Messner and Sabo 1990). (2) The principle of the interests of the least advantaged is negated by any curriculum practice which confirms or justifies their disadvantage. There have been many forms of curriculum for slavery, with the message of the 1848 hymn: The rich man in his castle, The poor man at his gate, God made them, high or lowly, And order'd their estate. Histories of education (eg Miller 1986) are full of tragi-comic quotes of this kind, consigning girls to domestic science, workers' children to training in deference and useful labour, Aboriginal children to godliness, cleanliness and semi-literacy. Nowadays no education authority in its right mind would admit to 'ordering their estate', not intentionally. But they do it all the same. When teachers in NSW public schools objected in 1990 to the 'Basic Skills Test' on the grounds that it mandates failure for the majority, and when teachers in disadvantaged schools criticised competitive testing in general because of its dire effects on children in poverty (Connell, Johnston & White 1991) they were making this point. So were teachers who have criticized streaming because of its effects on the children streamed down: Here at this school, my very first day with the children having the tests, and then next day putting them into groups, and seeing the children sitting around. And straight away they knew which was the best group, which was the worst group. And hearing a little girl say that she hadn't been picked for any group yet: 'Oh, I hope I get in this group', and 'Oh, it 13 that must be the good group because such-and-such is in it'. And then the last group called out, and she was in it. The dejected way, on the second day of the school year, that she went to that class, knowing that it was the dummy class--that was dreadful. And for all the good things that go with streaming, I would never advocate it, because of that. (Quoted in Connell 1985:17) (3) The principle of the historical production of equality is negated when socio-educational change in that direction is blocked. The recent expansion of selective schooling in NSW, a macro-streaming of the secondary curriculum, is an obvious case. The government's intention here seems to be to produce more inequality. Less obvious, but more common in educational history, is the blocking of change by the codification of culture. Curricular practices involve injustice when they reduce people's capacity to remake their world. The death of a sense of possibility may be as effective as any positive propaganda for slavery. All curricula involve codification, of course. But some rest on closed bodies of knowledge and define teaching as authoritative instruction in fixed content, others embrace cultural change and explore the creation of new meaning. Music teaching provides an interesting illustration, with its tension between a closed codification (the authoritative curriculum of the conservatories) ano an open one (usually based on rock performance). Literature is an important case where an authoritative codification- -the 'canon' of literary classics--has come under increasing criticism for excluding the voices of the less powerful (eg Brett 1984). The strategy of empowerment I have been arguing that large questions about the political meaning of education centre on the way teachers' labour is constructed and controlled; that we do not have to take a 'social reproduction' view of this matter; that we can think systematically about the potential for social justice in the organisation of curriculum. The social analysis of education can, in fact, be of practical use to teachers. The condition for this is teachers' willingness to be realistic about society: to acknowledge that educational work starts in contexts of inequality. It is essential to reject the complacency of 14 14 official statements such as the Australian Education Council's invocation of 'our democratic Australian society' (quoted above). The assumption that the society is already fully democratic, that children simply need to be trained up as participants in it, turns the idea of 'citizenship' towards a logic of regulation, ordering the formation of persons to sustain existing social relations. It obliterates the principle of education as cultural critique that is central to educational philosophy from Plato to Dewey (1916) to the present; and it invites teachers to become collaborators in the reproduction of injustice. Given an awareness of social inequality, the project of education as cultural critique implies the empowerment of the disempowered. This idea is familiar in contexts like Freire's (1972) concept of conscientization, and in the idea of a 'pedagogy of possibility' being explored now by some North American educators (eg Giroux and Simon, 1989). Here `mainstream' education discussion has something to learn from AIDS prevention education. An epidemic disease is, institutionally, medical business, so prevention education was initially designed on a medical model. Authoritative doctors, or their media simulacra, told ignorant or wilful patients (or 'risk groups') what to do. Individual 'behaviour change' was the goal sought. But from early in the 1980s gay communities developed other educational models. These centred on 'peer education' and collective community action. It was from the socially marginalized gay communities, not medical authorities, that the most effective prevention strategy, `Safe Sex', emerged (Dowsett 1990). Gay men have responded to ii.ct epidemic by attempting to increase their collective capacity to act, and specifically to act in a communal way. Change is pursued not just at the level of individual 'behaviour change', but at the level of culture and institutions. The strategy tried to make 'safe sex' normative in gay milieux, tried to change the pattern of communication about AIDS, and alter the symbolism of the disease to emphasise the capacity of 'victims' to act on their own situation. This educational effort, however, has mostly been confined to affluent milieux. There is much less mobilization among working-class men who have sex with men (Connell, Dowsett et al. 1991). Here AIDS educators need to learn from debates around schooling. The complexities of 'empowerment' are apparent in the case c7 working-class secondary schooling. Some reform proposals, including our own in Making the Difference, have urged the creation of a 'working- 15 class curriculum' more organic to working-class life than thf: academic curriculum is. This has been criticized on the grounds that it would exclude working-class kids from 'powerful knowledge' of the kind validated in the universities -natural science, economics, and the like. The criticism perhaps blurs a noticm of intellectual power with one of social recognition. Nevertheless it states an important limit in may L-ig a counter-hegemonic curriculum. One is not free simply to set up an alternative curriculum. The counter-hegemonic curriculum must incorporate and rework the core of the hegemonic curriculum. This is important, among other things, because of teachers' relationship to that curriculum. Teaching as a professional occupation has historically formed around teachers' expertise defined by the academic curriculum. To ask teachers to junk it outright would be to ask them to abandon teacher professionalism, together with the industrial strength (however limited) and the occupational identity that professionalism gives them. Rather, the approach I am suggesting would suggest a larger professionalism in which occupational knowledge and occupational ethics are expanded from the interactions of the classroom to include the consequences of those interactions. That this kind of re-thinking is a practical possibility is shown by the 'Essential Curriculum' project in Sydney (Ryan and Davey 1990). In this project, a team of teachers from disadvantaged schools have re-thought curriculum content across the board in the light of a set of agreed principles about the social purposes of schooling. Starting with existing syllabuses, recasting their content via analysis of essential common learning, the result is a specification of a teaching program which is immediately practicable in schools as they are, but also has a logic of empowerment of disadvantaged students built into it. This is only one example of a curriculum logic that has in principle very wide application. Whether it gets widely applied in practice is an open question. The mobilisation of neo- conservative ideas in education around standardized testing and the commodification of schooling is directly antagonistic to these possibilities. No one who looks at the current political scene in the OECD countries will imagine that educational progress will be easy. But the emergence in recent years of a richer and more educational understanding of the issue of educational inequality is promising. 16 Acknowledgements This paper reworks material first presented to the National Conference of the Australian Curriculum Studies Association, 1991. The ideas have developed in the course of two collaborative research projects, and I would wish to acknowledge what I have learnt from Dean Ashenden, Gary Dowsett, Sandra Kessler, Viv White and Ken Johnston. I am grateful for assistance from Marie O'Brien and Helen F-2.sson, and for a careful reading by Ian Watson which led to corrections on two important points. REFERENCES APPLE, M. (1986) Teachers and Texts: A Political Economy of Class and Gender Relations in Education (New York, Rout ledge and Kegan Paul). AUSTRALIAN EDUCATION COUNCIL (1989) Hobart Declaration on Schooling: Common and Agreed National Goals for Schooling in Australia (Hobart, AEC). BLACKBURN, J. et al. (1985) Ministerial Review of Postcompulsory Schooling (Melbourne, Dept of Education). BRETT, J. (1984) Literature and Politics. Meanjin, reprinted in J. LEE et al. (Eds) The ojgatofSieLeraaon21 (Melbourne, Meanjin/Melbourne University Press) 1990. CLARKE, E. (1987) Assessment in Queensland Secondary Schools...1964-1983 (Brisbane, Dept of Education). CLARKE, E. (1990) Assessment in Queensland Secondary Schools...1983-1990 (Brisbane, Dept of Education). CONNELL, R.W. (1985) Teachers' Work (Sydney, Allen & Unwin). CONNELL, R.W. (1988) Curriculum politics, hegemony and strategies of social change, Curriculum and Teaching, 3, pp. 63-71. CONNELL, R.W., D.J.ASHENDEN, S.KESSLER and G.W.DOWSETT (1982) Making the Difference (Sydney, Allen & Unwin). CONNELL, R.W., G.W.DOWSETT, P.RODDEN, M.D. DAVIS , L. WATSON and D. BAXTER (1991) Social class, gay men and AIDS prevention, Australian Journal of Public Health, 15, pp. 178-189. 1 7 17 CONNELL, R.W., K.M.JOHNSTON and V.M.WHITE (1991) Measuring Up: Assessment of Student Outcomes and Evaluationam Effectiveness in the Disadvantaged Schools Program and the Educational Implications in Relation to Child Poverty (Sydney, Macquarie University Centre for Applied Social Research). CONNELL, R.W., V.M.WHITE and K.M.JOHNSTON (1991) Running Twice as Hard: The Disadvantaged Schools Program (Geelong, Deakin University Press). CONNELL, W.F. (1991) Remaking Australian Education 1960-1985 (Melbourne, Australian Council for Educational Research). DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING (1990) A Fair Chance for All (Canberra, DEET). DEWEY, J. (1916) Democracy and Education (New York, Macmillan). DOWSETT, G.W. (1990) Reaching men who have sex with men in Australia: an overview of AIDS education, Australian Journ f iaclasLesi , 25, pp. 186-198. DUKE, C. (1986) Australian education aid -- who benefits? in: P. ELDRIDGE, D. FORBES and D. PORTER, (Eds) Australian Overseas Aid: Future Directions (Sydney, Croom Helm). FOSTER, P. (1980) Education and social inequality in sub-Saharan Africa, Journal of Modern African Studies, 18, pp. 201-236. FREIRE, P. (1972) Pedagogy of the Oppressed (Harmondsworth, Penguin). GIROUX, H.A. and SIMON, R.I. (1989) Schooling, popular culture, and a pedagogy of possibility, in: GIROUX and SIMON, (Eds) Popular Culture. Schooling and Everyday Life (Massachusetts, Bergin and Garvey). GOODSON, I. (Ed) (1985) Social Histories of Secondary Curriculum (London, Falmer). GOODSON, I. (1988) The Making of Curriculum (London, Falmer). HARDING, S. (1986) The Science Question in Feminism (Ithaca, Cornell University Press). KELLER, E.F. (1985) Reflections on Gender and Science (New Haven, Yale University Press). KUHN, T. (1970) The Structure of Scientific Revolutions (Chicago, University of Chicago Press). MERCHANT, C. (1983) The Death of Nature (San Francisco, Harper and Row). 1 0 18 MESSNER, M. and D.SABO (Eels) (1990) sport. Men and the Gender Order (Champaign, Human Kinetics Books). MILLER, P. (1986) Long Division: State Schooling in South Australian Society (Adelaide, Wakefield Press). PATEMAN, C. (1988) The Sexual Contract (Stanford, Stanford University Press). RAWLS, J. (1971) A Theory of Justice (Cambridge Mass., Harvard University Press). RYAN, C. and V. DAVY (1990) The Essential Curriculum Project (Sydney, DSP Metropolitan East Region). SPENCER, H. (1859) What Knowledge is of Most Worth? in: Herbert Spencer on Education (Cambridge, Cambridge University Press, 1932). WALZER, M. (1983) Spheres of Justice, (New York, Basic Books). WHITTY, G. (1985) Sociology and School Knowledge (London, Methuen). 
work_ldud4i56rrcfhemdlyomh4455i	----	doi:10.3402/egp.v2i4.2107 Deakin Research Online Deakin University’s institutional research repository DDeakin Research Online Research Online This is the published version (version of record) of: Van Hooft, Stan 2009, Gillian Brock, Global justice : a cosmopolitan account, Ethics & global politics, vol. 2, no. 4, pp. 369-382. Available from Deakin Research Online: http://hdl.handle.net/10536/DRO/DU:30022910 Reproduced with kind permission of the copyright owner. Copyright : ©2009, S. van Hooft REVIEW ESSAY Global justice: a cosmopolitan account Gillian Brock, Global justice: a cosmopolitan account (Oxford: Oxford University Press, 2009), ISBN 978-0-19-923093-8 (Hbk), 978-0-19-923094-5 (Pbk), US$110, 366 pages with index and bibliography (also available as electronic download @ US$22). Stan van Hooft* Department of Philosophy, Faculty of Arts and Education, Deakin University, Victoria, Australia Abstract This is a review of Gillian Brock’s new book, Global justice: a cosmopolitan account (Oxford: Oxford University Press, 2009) which sets out the central theses of the book and then offers a critical appraisal of its central arguments. My specific concern is that Brock gives an insufficiently robust account of human rights with which to define the nature of global justice and thereby leaves cosmopolitanism too vulnerable to the normative pull of local and traditional moral conceptions that fall short of the universalism that cosmopolitans should be able to embrace. Keywords: cosmopolitanism; human rights; global justice; Rawls; humanitarian intervention; global governance; liberal nationalism; democracy; equality; immigration INTRODUCTION There is an increasing literature today on cosmopolitanism and global justice in the disciplines of philosophy and international relations. Global justice: a cosmopolitan account consolidates and extends Gillian Brock’s important contributions to this literature. While some sections are based on previously published essays, this book represents a reworking, application, and deepening of her ideas. In this review essay I offer an overview of the content of the book followed by brief critical appraisal of its central arguments. My specific concern is that Brock gives an insufficiently robust account of human rights with which to define the nature of global justice and thereby *Correspondence to: Stan van Hooft, Department of Philosophy, Faculty of Arts and Education, Deakin University, 221 Burwood Highway, Burwood, VIC 3125, Australia. Email: stanvh@deakin.edu.au Ethics & Global Politics Vol. 2, No. 4, 2009, pp. 369�382 #2009 S. van Hooft. This is an Open Access article distributed under the terms of the Creative Commons Attribution-Noncommercial 3.0 Unported License (http://creativecommons.org/licenses/by-nc/3.0/), permitting all non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited. Citation: Ethics & Global Politics, Vol. 2, No. 4, 2009, pp. 369�382. DOI: 10.3402/egp.v2i4.2107 369 leaves cosmopolitanism too vulnerable to the normative pull of local and traditional moral conceptions that fall short of the universalism that cosmopolitans should be able to embrace. SUMMARY OF THE BOOK The introduction presents the core thesis of the book: that the cosmopolitan vision, which sees the moral status of each individual globally as equal, can lead to a viable conception of, and program for, global justice. Brock draws several distinctions within cosmopolitanism. One is derived from Samuel Scheffler and distinguishes ‘extreme’ from ‘moderate’ cosmopolitanism. An extreme cosmopolitan thinks there is a single universally valid theory which can justify the cosmopolitan outlook, while a moderate cosmopolitan thinks that different cultural traditions can ground cosmo- politan policies upon their own moral premises. A second distinction is that between ‘weak’ and ‘strong’ cosmopolitanism where the former pursues a minimal standard of global justice while the latter seeks stronger forms of global egalitarianism. It will transpire that Brock is both a moderate and a weak cosmopolitan in these senses. Chapter two offers a literature review centered on John Rawls’s The Law of Peoples. 1 Brock offers a brief overview of that book and rehearses the considerable debate which it has generated. She rightly points out that those familiar with debates around Rawls could skip this chapter. Yet it does serve to set up the problems that she goes on to deal with. The thesis of the next chapter is that cosmopolitans should not support a globalized version of Rawls’s difference principle as derived from his A Theory of Justice, but should rather support a ‘minimum standard principle’ in which justice consists in the provision of social goods sufficient to allow even the poorest to live a life of simple human dignity by having their basic needs met. Brock imagines a ‘normative thought experiment’ not unlike Rawls’s original position in which delegates are randomly selected to attend a global conference ‘to flesh out what we can reasonably expect of one another in a way that avoids inappropriate partiality’ (48). She argues that it is a minimum standard principle that would be agreed to in such a scenario. She supports this with empirical research which shows that people in such situations do actually prefer the principle that, ‘The most just distribution of income is that which maximizes the average income only after a certain specified minimum income is guaranteed to everyone’ (55). The problem with the difference principle and that of equality of opportunity is that it is not easy to define the social goods in respect of which fair distributions or equality should obtain without appealing to culturally specific conceptions of such social goods. The issue of the goods which should be distributed justly cannot be overcome in a world marked by moral pluralism. Accordingly, it is better to focus on what is needed to live a decent life than on the ‘maximin’ principle or on equality. Without explaining exactly how, Brock suggests that a needs approach, like Martha Nussbaum’s capabilities approach, can undergird the justification of basic human rights. Indeed, she argues S. van Hooft 370 that it is superior to, and more widely applicable than, a discourse on rights because the rights discourse is convincing only in the more liberal of the world’s cultures. Moreover, the focus on needs helps us to imagine a realistic utopia. Rather than saying that a world order is just if it honors everyone’s rights, Brock argues that a global distribution is just if it meets everyone’s basic needs, where such needs are the conditions and provisions that are necessary for meaningful human agency. Chapter four discusses global governance. Brock distinguishes this from any form of global government which would extinguish national sovereignties. Rather, the issue is one of balancing the rights of sovereignty*which are already declining as a result of globalization*with the need for global cooperation in pursuit of global goals. The unfettered pursuit of the national interest on the part of states is inimical to global justice. But, says Brock following Thomas Pogge, if global governance is an instrument to secure justice, then it is currently a very poor one. In order to improve global governance, it should be made more responsive. One way that has been suggested for doing that is to make it more democratic. Brock reports on debates between David Held and Will Kymlicka on what social conditions are necessary to democratic participation. Brock doubts whether a shared collective identity is necessary for authentic democratic deliberation. Awareness of common problems, vulnerabilities and interdependence, determination to solve common problems, and minimal shared values may be sufficient. For her part, Brock proposes a model of ‘responsive democracy’ (104) which is effective in attending to people’s interests and accountable to the people affected. On this model agency could be given to suitable experts or delegates who are responsive to their constituencies. The International Criminal Court is offered as an example. She argues that we pursue global democracy not to enhance political agency but to meet people’s needs and interests. The latter can be achieved by making institutions more responsive and by giving experts more of a say. Moreover, while future generations are not political agents they do have interests. Democracy should not be held hostage to current public opinion. It is accountability that is most important. Brock concludes that global governance must be effective and accountable, and responsive forms of democracy can fulfill these desiderata even if they are less than fully participatory. Chapter five begins a series of chapters that make concrete proposals for making the world more just. It discusses Pogge’s proposals for a global resources dividend and also his criticisms of the borrowing and selling privileges enjoyed by despotic governments, and goes on to propose a series of international taxes, including the Tobin Tax, that would discourage tax havens and dishonest accounting practices such as ‘transfer pricing’ so as to promote economic development in poorer countries. These proposals would be feasible, according to Brock, even without universal agreement or global implementation. The next chapter discusses what steps need to be taken in order to protect the ‘basic liberties’ of the world’s people. The focus is upon freedom of the press and on securing criminal justice. The press can be hampered in many ways but there are currently effective NGOs which seek to protect journalists and encourage press Global justice: a cosmopolitan account 371 freedom. For its part, the International Criminal Court is playing an important role in countering the ability of a culture of impunity to protect criminals in many countries*whether corrupt government officials, warlords or drug barons. Brock argues for the relevant liberties by once again using her normative thought experiment. In such a context, ‘reasonable people will care at least a little about enjoying some freedoms’ (152) and ‘delegates would, therefore, endorse freedom of conscience, speech, dissent, and exit’ (153). The next chapter focuses almost exclusively on military forms of humanitarian intervention, and it is therefore not surprising that it endorses the use of just war principles in order to place limits on them. The central theoretical argument for justifying humanitarian intervention is drawn, once again, from Brock’s normative thought experiment. She argues that reasonable delegates to an original convention would endorse principles that would allow for humanitarian intervention because they would welcome interventions to protect their lives and basic needs if they were in the situation of the victims of oppression. Brock also cites the International Commission on Intervention and State Sovereignty (ICISS) report which extends the concept of sovereignty so that it includes responsibility for the internal protection of human rights. Not only is sovereignty the right not to be interfered with, but it is also the responsibility to protect the rights of citizens internally. Accordingly, a state that fails to protect its citizens forfeits its right to non-intervention because it forfeits its sovereignty. That her hypothetical normative thought experiments might not be as unequivocal as one might hope is admitted by Brock in her chapter on immigration. She here concedes that individualist cosmopolitans in such a scenario may choose a policy of open borders from behind a veil of ignorance but that those of a more communitarian bent might endorse a more restrictive policy so as to preserve the cultural homogeneity of their societies. Rather than explore these issues more fully, however, Brock takes a consequentialist view and asks who benefits from migratory movements. She highlights the costs to developing countries when their trained people leave for more lucrative jobs in developed countries*especially in the health professions. She discusses solutions that include compensation from the developed countries to cover the costs of training such people and of restoring services that are compromised by their departure. Brock also discusses the benefits and problems that flow from the remittances that migrants send home to developing countries and which contribute substantially to those economies. The virtue of this chapter is that it shows that migration is not just a matter of justice for the individuals who migrate. It is also a matter of justice for the societies they leave behind and for future generations in those societies. Brock does not discuss problems of multiculturalism arising from migration or problems relating to refugees whose reasons for migration are not economic. Chapter nine explores the possibilities for improving the lot of the poor by reforming international trade. Deriving her thought from a multitude of technical studies, she doubts that a simple liberalization of trade would always do so and argues that ‘special and differential treatment’ would often be necessary. Fair S. van Hooft 372 international trade arrangements should allow for specific needs in order to attain the goals of global justice. Similarly, there should be reform of working conditions and wages throughout the world, and efforts to link such improvements to the conditions of trade should be encouraged. Although philosophers reading the book would not be able to assess the validity of these proposals on the basis of their expertise or on the basis of the amount of information provided in this chapter, it is valuable for them to be reminded of the need to link normative proposals to concrete institutional and programmatic reforms. There is a greater need for synergies between advocacy, philosophy, political science, and economics in order to develop workable solutions, and if Brock has extended her reach beyond her own discipline in this and preceding chapters, she should be applauded for doing so. Chapter 10 returns the book to a more philosophical level of discussion. It critiques the ‘liberal nationalist’ position of such writers as Yael Tamir and David Miller which argue that our duties toward our co-nationals are stronger and more immediate than our duties to foreigners. Brock points out that both authors are inconsistent because they allow that universal and impartial considerations provide a normative backdrop and constraint on the degree to which we may favor members of our own groups. For her part, Brock argues that it is not the case that we are permitted to attend to international obligations only after we have secured national interests. ‘Rather, what we may permissibly do for co-nationals must operate within the bounds of respecting our international duties’ (262�3). This is especially true in relation to securing global justice. According to Brock, nations should secure global justice before they attend to the welfare of their own citizens. She goes on to use her normative thought experiment to suggest that delegates in an original position would agree to seeing to the needs of co-nationals only after the basic needs and liberties of all globally were secured and fair terms of cooperation across borders were established. In a dense and complex section of the chapter, Brock goes on to refute some common objections to ‘impartialism.’ Do cosmopolitan duties devalue friends and family? Should we really save the philanthropist rather than our mother from the burning building in the classic example? Are we required to be ‘neutral’ in our actions? Brock admits that constitutive relationships are valuable and associative obligations binding but she appeals to a distinction Brian Barry makes between first and second order impartiality (267). First order impartiality requires not putting your own interests or those of your family or group members first, while second order impartiality requires adherence to just institutions. Critics of impartiality attack first order impartialism, but defenders defend second order impartialism. Brock argues that in an original position no one could object to the preference parents show to their children, but they would object to institutional arrangements that are partial to members of certain casts, ethnicities, or other identity-forming groups. Moreover, they would not endorse national or cultural allegiance is a basis for partiality because this would privilege specific conceptions of the good life. The specific conception of the good life that would be being assumed here is the communitarian/nationalist one promoted by Kymlicka, Tamir, and Miller. Brock’s point is that we should not seek Global justice: a cosmopolitan account 373 to adjudicate from a nationalist perspective between the claims of national partiality and cosmopolitan impartiality because that would be to beg the question. We must suspend nationalism by adopting her normative thought experiment. To illustrate this point, Brock says that we cannot ask whether it is fair to spend the national resources primarily on internal welfare before asking whether the national resources have been fairly obtained or justly retained. ‘Nations should only distribute resources to their own members if those resources are defensibly to be used by the nation as it pleases, but we can only decide that matter if we have first determined what global justice requires of all people and nations, and what constitutes fair ownership of resources’ (269). It is only by suspending the nationalist perspective that this broader question can be broached and the claims of global justice fairly considered. Chapter 11 begins by refuting a number of further arguments for favoring co-nationals, including those that use the ‘expanding circles’ model to suggest that our obligations become less stringent as our relations to other people become more tenuous or more distant. It then returns to the argument that we have the responsibility to see that global justice criteria are met before we are morally permitted to favor co-nationals. Brock makes this point by revisiting her earlier material about the effects of migration on the provision of health care in third-world nations, along with several other cases, such as the adequate collection of taxes internationally. We can look after the needs of co-nationals, she says, provided all the necessary safeguards and provisions are in place to ensure justice for non-nationals. Chapter 12 is a rather dense and cryptic chapter that raises a number of theoretical issues. The main thrust of it seems to be to ask about the content of global justice: in respect of what do cosmopolitans insist on equality? Brock had already argued that equality of wealth distribution or of opportunities for social position is not apposite, and she is also opposed to Rawls’s difference principle. Her position is that everyone should have equal access to those conditions and resources that are required for living a minimally decent or dignified human life. This chapter adds more. Referring to the work of Elizabeth Anderson, Brock argues that recognition and the kind of status which allows one to participate in democratic decision making are the social goods which should be available equally to all. Egalitarians should secure conditions, norms, and institutions that would accord what Anderson calls ‘democratic equality’ which would ensure freedom from oppression and domination to all. Brock says that this ties in with her notion of responsive democracy. She argues that the community in which this ideal of equality should be realized is that of the whole world rather than specific states or cultural communities because the whole world is now a globalized economic system. The distribution of wealth or social goods is not what is of central importance to cosmopolitans, but rather the equal according of the kind of social respect and recognition that becomes concrete in the ability of all individuals to participate in democratic processes. The distribution of social goods and the meeting of basic needs are merely instrumental in relation to this fundamental value. An equitable distribution of social goods is a means of ensuring equality of respect. It is not the ownership of, or access to, social goods and opportunities that is of S. van Hooft 374 fundamental value to cosmopolitans but the social recognition and democratic participation that these enable. The last chapter addresses the ‘feasibility skeptics’ who think that meaningful change for the better is not possible. Brock reminds her readers of the many suggestions that she has made or reported on in the preceding chapters which show that change is possible. CRITIQUE The book covers a wide range of important topics which range from theoretical issues to practical applications of cosmopolitan principles. However, I find the sequence of chapters a little unhelpful. That the more practical chapters occur in the middle of the book results in the needs to repeat some materials at the end when the feasibility of those proposals is discussed, while the central question of how national obligations stand to cosmopolitan duties should have been resolved earlier to as to prepare for the more concrete proposals that Brock makes. Moreover, these proposals extend the scope of the book beyond the remit of philosophy. To discuss these matters with the necessary rigor would require a degree of knowledge of economics and related social sciences that philosophers as such do not have. While I admire Brock for making such proposals, it would require social scientists and social activists operating at a number of fronts and using a wide range of expertise to decide which proposals are best and how they might be implemented. The general problem here is that of making utopian thinking more realistic and feasible and this is not a problem that philosophy, as such, is equipped to deal with. What philosophy is equipped to deal with is the justification of the principles of justice which should provide the basis for such realistic utopian thinking and for responsible action to secure global justice. While the book embraces this task, I find that it falls somewhat short on its promise. There are a number of ways in which cosmopolitans can seek to justify and operationalize the principle of the equal moral status of every individual globally that is central to their outlook and to articulate what global justice might require in the light of this principle. The first of these is to apply Rawls’s difference principle globally in the way espoused by Charles Beitz and Thomas Pogge. 2 Brock rejects this approach although she uses a scenario very similar to Rawls’s original position, applied globally, to reach her own conclusions. A second way is to argue that basic human rights apply to everyone globally and that the obligation to honor those rights is incumbent on everyone globally as well*although those obligations can be fulfilled by various institutions including both national governments and transnational organizations. Brock flirts with this second approach but does not commit herself fully to it because of her preference for the discourse of needs. Let me first say why I am concerned about Brock’s reliance on her ‘normative thought experiment.’ Although I have compared it to Rawls’s original position, it is important to see that Rawls does not apply his scenario globally. One reason for this Global justice: a cosmopolitan account 375 is that he sees a domestic society as a more or less self-enclosed system of cooperation that grounds reciprocal duties of justice which do not cross the borders of that society. But a more profound reason is that he understands his scenario as an articulation of liberal assumptions about how a reasonable participant in political institutions would think in the context of an idealized decision procedure. By suspending all knowledge of how the specific interests of participants might be realized in the society that those participants are designing, they cannot but act in an impartial manner and pursue goals which any other participant could endorse. The original position constitutes them as free and equal moral persons. In this context they constitute idealized liberal political subjects who cannot but agree on institutional arrangements that are fair. In this way, Rawls sees himself as explicating the notion of an ideal liberal political participant*a notion which he assumes his readers share*and as spelling out the principles which such a participant would be rationally committed to endorsing. It is precisely because he recognizes that his model is liberal to its very core in this way that he thinks it cannot be applied globally to societies which are not liberal. It is applicable only to well-ordered societies in which the political capacities of impartiality and a sense of justice are developed so as to constitute political participants as ideal liberal subjects. But in Brock’s use of an analogous scenario she asks us to speculate as to what principles and practices would be endorsed by randomly chosen and reasonable delegates who could come from any cultural or political background. The veil of ignorance in this context would lead delegates to think in impartial terms because they would have to consider the impact of the decision upon themselves if they were to end up in the least favored position. Accordingly, any arrangement that would be so chosen would be considered by them to be fair and just. In this version, the experiment is being used to establish what global justice demands or to test arrangements as to whether they could be accepted as just by anyone at all. And then it transpires that the arrangements endorsed in such a scenario take on a liberal, individualist, and democratic hue. Rather than assuming liberalism as a background for the original position, as Rawls does, Brock seems to use her normative thought experiment to establish it. The problem with this variation on Rawls’s idea is that it cannot be assumed that participants are ideal liberal subjects who would endorse liberal outcomes. A randomly chosen delegate might be a cardinal of the Roman church, a Hindu renouncer, a Brahmin, an Imam, or an uneducated Afghan woman who had no conception of democracy. Would such delegates agree with arrangements that were fundamentally liberal in tenor? Insofar as he holds moral views with deep conviction, could the Brahmin seriously agree that an ‘untouchable’ should receive the same respect and social recognition as Brahmins, for example? Even if he imagined himself in the position of the untouchable, would he not suppose that, as an untouchable, it would be unthinkable for him to aspire to anything except the job of cleaning away human waste? If a delegate were an Afghan woman of traditional upbringing and no education, would she not think it impossible, even for herself, to participate in democratic processes that may involve disobeying her husband? S. van Hooft 376 Brock fails to see that her normative thought experiment will not inevitably promote fundamentally liberal or cosmopolitan values. Delegates are asked to consider how they themselves would react if the arrangements they agreed to yielded an outcome not acceptable to the least favored and if they were themselves those least favored. There is no allowance made for the possibility that delegates might see themselves as spokespersons for their groups and may endorse conditions which, while they would not welcome them for themselves, they consider to be necessary to the living of the good life which their tradition teaches them to accept and to endorse for their constituents. So a male delegate may endorse a restriction on a woman’s rights because he thinks that he would or should accept it if he were a woman. At the time of writing this review there were reports in the newspaper of a young woman in Malaysia who had been condemned by judges in a Sharia court to six lashes of the cane for drinking alcohol. She is reported to have said that if this punishment were the will of Allah and if it would provide a salutary example to other Muslims, then she would be happy to accept it. This would seem to imply that if she were presented with this scenario in Brock’s normative thought experiment, she would think such a punishment was fair and appropriate. There were reports also of interviews with Afghan women living in Australia who said that they could not understand why it would be worthwhile for them to vote in the Afghan elections if they were still living in that country because, according to them, voting and politics are men’s responsibilities. 3 In this way a traditionally minded delegate may think it fair to accept illiberal restrictions on basic liberties in Brock’s normative thought experi- ment. Someone who genuinely believes that adulterers should be stoned would imagine themselves accepting such a stoning in institutions set up to create social and sexual order. They would regard it as unfair, even from the victim’s point of view, to escape from such a punishment*a punishment that will have been made to seem natural and just by years of indoctrination into the ways of the tradition. A traditional moral conception may override the self-centered quest for autonomy which liberals imagine would motivate any reasonable person at all. This point might also apply to Brock’s arguments about humanitarian intervention. Some delegates may have such strong nationalist views that they would reject intervention even if it was their own individual rights which would be protected by such a violation of sovereignty. One could well imagine contemporary Chinese nationalists thinking in this way. The problem is that when we are asked to imagine what delegates would agree to in Brock’s version of the original position, we inevitably imagine them thinking as if they were liberals such as ourselves. Because our acculturation has been broadly liberal we could not imagine ourselves agreeing to what we would see as unjust and discriminatory institutions. And so we could not imagine anyone else doing so. Although Brock does back up her rejection of Rawls’s difference principle by appealing to what was actually agreed to in a series of staged psychology experiments, by creating a hypothetical scenario in which we are asked to imagine what others would agree to without adequate empirical evidence as to what they actually do agree to, we can only fall back upon our own intuitions and hypotheses about what we would agree to. But most of us are liberals in some broad sense. It therefore becomes Global justice: a cosmopolitan account 377 inevitable that the arrangements we can imagine being agreed to in the experiment are liberal arrangements. Brock’s argument commits the fallacy of begging the question. The aim of the argument is to establish that liberal cosmopolitan principles, practices, and institutions would be fair. But it then relies on the intuitions of liberal cosmopolitans to distinguish outcomes that would be fair from those which would not be. In a world of moral pluralism there are people whose ways of thinking and scales of value are simply incomprehensible to those of us who are of a modernist and liberal persuasion. The fact is that we cannot imagine how such people would decide on issues in Brock’s normative thought experiment, and hence we cannot know what they would agree to. Perhaps it is to overcome this problem that delegates in the normative thought experiment or their decisions are described as having to be ‘reasonable.’ But this specification merely exacerbates the problem. Who is to count as reasonable from our point of view? Inevitably, we would only count as reasonable people who think broadly in the way that we do. We would not count the Brahmin or the Afghan woman as reasonable because we cannot recognize the cogency of their thinking. But this really means that to be deemed reasonable in the experiment it is necessary to think in broadly liberal terms just as we do. Once again, we have created a condition for the normative thought experiment which results in the argument begging the question. It is inevitable that reasonable people will agree to liberal principles if to count as reasonable one must already be a liberal. What this shows is that a genuinely cosmopolitan theory of justice needs to dig deeper. It cannot just be a specification of what would count as criteria for justice in the view of people who already think in modernist, individualist, and liberal terms. It is one thing to say what makes a situation or an arrangement just (for example, that it secures a minimum standard of provision necessary for living a life of simple human dignity, or that it fulfills Rawls’s maximin criteria, or that it secures equality in the distribution of some specifiable social good), but it is another to say what justice is, or what is good about justice. We can ask the classic Socratic question here: is a situation just because it would be endorsed in an original position, or would it be endorsed in an original position because it is just? The first of these options is unhelpful for reasons just explained. The second option requires us to develop an account of what makes a situation just so that it would be endorsed in an original position. It might help to explain this in negative terms. A person who suffers an injustice suffers a harm. But what is the harm that constitutes the injustice? To help us understand this question let us compare two cases. First, suppose a person loses her home because it is washed away in a tsunami which no one could have reasonably warned her of or prevented. This is a harm because she has need of a home and she now does not have one. Second, suppose a person loses her home because a powerful developer bribed a local official to remove her from it so that he could acquire the land and build a beach-side resort. In both cases the woman suffers the harm of losing the home that she needs. In both cases her needs are not met. But in the second case she also suffers an injustice. (There might be those who think she suffers S. van Hooft 378 an injustice in the first scenario, but they would require a pre-modern theory in which natural disasters are seen as violating some form of cosmic justice.) So in the second case she suffers two harms: the need for a home not being met, and the injustice. This shows that, contrary to what is implied by Brock’s view, this injustice does not consist simply in the need not being met. What sense are we to make of this injustice, then? In what does this injustice consist? Would we have explained the injustice if we were to say that, in Brock’s normative thought experiment, the woman would not have endorsed any principle, practice, or institution that would allow her home to be taken away from her in this way? No, this adds nothing. It is merely another way of saying that it was unjust. Perhaps it adds that we would agree, from our liberal vantage point, that it is unjust. But what it does not tell us is what the extra harm is that she has suffered. There is some hint of an answer in Brock’s suggestion that injustice involves a lack of social recognition and respect, but then it is not clear how this woman has had her capacity for democratic participation compromised. According to Brock, it is because democratic participation matters that social recognition and respect are important. I would suggest that the extra harm is that her right to her home has been violated. The tsunami did not violate her right to her home, even though it did result in her losing her home, but the developer’s action did violate her right to her home. There were legal arrangements by virtue of which she was entitled to her home and the action of the developer circumvented these arrangements and resulted in her loss. Introducing the notion of a right here serves to introduce another relevant notion as well: namely, that of obligation. Whenever anyone has a right, someone else has an obligation. This might be an obligation to provide some good to which the recipient is entitled or it might be an obligation to desist from some harmful action. Many such positive and negative obligations are established by laws and contracts. In the case before us, there is an obligation on the part of everyone to honor the property rights of others and this obligation is a logical counterpart of the property right in question. Our developer has not fulfilled his obligation to honor the property right of the beach-side home owner and it is for this reason that she has suffered an injustice. What this example shows is that the harm of having her need for a home frustrated that is suffered by this woman is not just a result of bad luck*as it would have been had her home been destroyed by the tsunami*but is an example of injustice. And this is because her right to her home was violated by the developer who failed to fulfill his obligation to adhere to the law. Along with the harm she suffers in losing her home, the injustice she suffers is the violation of her right to her home. Of course, this shifts the focus of the argument into the nature and basis of rights. If her normative thought experiment cannot do the work that Brock wants it to, then it had better be done by a robust theory of human rights. Brock offers no such theory but does go close to it when she speaks of human needs and capabilities. She needs to go that one step further in order to show that what we need for a life of basic human dignity we also have a right to. I myself have used Brock’s earlier work and some ideas Global justice: a cosmopolitan account 379 from Martha Nussbaum 4 to develop such an argument. 5 The argument has the following structure: 1. Describe human nature in terms of what would give dignity and worth to a human life by fulfilling that nature through the exercise of essential human capabilities. 2. Note that this description is normative for all human beings. 3. Conclude from 1 and 2 that all people should be enabled to exercise the human capabilities given in that description. 4. Assert that people need the resources to exercise those capabilities rather than just wanting them (and need them even when they do not express a want for them). 5. Conclude from 3 and 4 that social institutions and individuals should not prevent the exercise of the listed human capabilities and should provide whatever assistance or resources that are needed for such exercise. This step derives obligations from needs without specifying who carries those obligations. It is open to different cultures and societies to meet them in differing ways. 6. Note that obligations and rights are symmetrical. 7. Conclude from 5 and 6 that all human beings have a right to the freedom and the necessary resources to exercise the capabilities central to human dignity. Insofar as there is an obligation*not yet allocated to anyone in particular*to meet the needs of people so that they can exercise the capabilities described and so live a human life of minimal dignity, so all people have a right to have those needs met. It is clear, however, that Brock does not want to rely on a theory of rights. In Chapter six, for example, she uses a terminology of ‘basic liberties.’ Why does Brock not use the language of basic political and civil rights in this context? Why does she not use Nussbaum’s terminology of capabilities or her own preferred discourse of human and social needs? The concept of liberties seems vague and its relation to that of rights needs to be spelt out. Moreover, to speak of liberties is, once again, to import too much of the liberal outlook (although Brock does allow for the liberty to form non-liberal associations). Perhaps the reason that Brock has chosen not to go down the path toward a robust theory of justice based on the universal value of human rights is that it would make her an ‘extreme’ cosmopolitan. In her twelfth chapter, Brock returns to the classifications of cosmopolitanism from her introduction and says, ‘I am happy to take a pluralistic line on the sources of value [of cosmopolitanism]. And on the question of whether or not multiple fundamental principles of justice might exist, I remain open-minded to the possibility there might be such, though I have not come across particularly robust arguments for these yet’ (316). This is revealing. What it shows is that Brock does not have a theory about what makes an unjust situation unjust. Using an original scenario tells us what people would choose and so gives us criteria for what situations might be classified as just or unjust, but it does not tell us why they are unjust. For this one needs a substantive theory. A theory of human S. van Hooft 380 rights is such a theory, but Brock avoids this in favor of her discussion of needs and capabilities. An extreme cosmopolitan theory of justice based on universal human rights would also help Brock in her arguments about humanitarian intervention in Chapter seven. I reported that the argument she relies on to justify such interventions is that reasonable delegates to her normative original position would agree to such interventions if they imagined their needs not being met because of tyrannical and oppressive regimes. She also mentions the ICISS principles that, first, a state which violates the rights of its citizens forfeits its sovereignty and that, second, such violations can constitute ‘just cause’ under the criteria for just war. These ICISS principles clearly show that the concept of rights plays a crucial role in this context. But the concept of rights is superior to Brock’s appeal to needs for a further reason. Using the principles of just war as both Brock and the ICISS do runs the risk of conceiving military humanitarian interventions as acts of war. In the context of the Westphalian system of mutually aggressive states, the concept of sovereignty is logically tied to that of war in that statehood relies on the ability to defend the state’s borders. Accordingly, war is primarily seen as a violation of state sovereignty. The paradigm case of a war is an invasion. Humanitarian interventions should not be thought about in this framework. It would be much better if they were thought of as police actions directed at the violators of human rights. To do this we need to use the human rights discourse rather than the vague discourse of basic needs which Brock uses. I have argued that her normative thought experiment cannot be used to establish how justice is constituted. Accordingly, if needs not being met were to be considered by delegates in the original scenario to justify interventions, this will be because of humanitarian considerations rather than considerations of justice. It will be motivated by a desire to meet the needs of victims (or by imagining what it would be like to be such a victim) rather than the determination to punish their oppressors. What the human rights discourse gives us is the ability to justify sanctions for violations. Henry Shue has offered an argument for the legitimacy of foreign intervention based on the premise that talk of human rights is empty unless we are prepared to police their observance. 6 Accordingly, the concept of policing is tied to that of human rights. Talk of human rights obliges us to provide for the protection of those rights and for the punishment of those who violate them. This is a matter of upholding international law. If military humanitarian interventions were described as police actions they would be more readily understood as attempts to back up the global human rights regime than as invasions on the part of one state or group of states into the territory of another even if it were for humanitarian reasons such as the meeting of needs. This way of thinking would require an extreme form of cosmopolitanism that we should not shy away from. Brock has gone a long way towards elucidating a cosmopolitan foundation for the norms of global justice. However, in committing herself to being only a moderate cosmopolitan she has failed to provide a robust and universally applicable theory Global justice: a cosmopolitan account 381 of justice. The fact of global moral pluralism should not be allowed to deter cosmopolitans from developing such a theory. NOTES 1. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). 2. Charles Beitz, ‘International Liberalism and Distributive Justice: A Survey of Recent Thought’, World Politics 51, no. 2 (1999): 269�96. Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989). See also, Brian Barry, ‘Humanity and Justice in Global Perspective’, in Nomos XXIV: Ethics, Economics and the Law, eds. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1982), 219�52. 3. Carolyn Webb, ‘Of Rights and Men: for Local Afghan Women Democracy still a Concept out of Their World’. The Age (August 21, 2009), 1. 4. Martha C. Nussbaum, ‘Women and Cultural Universals’ in her Sex and Social Justice (Oxford: Oxford University Press, 1999), 29�54, 41. Nussbaum has put forward a newer version of her list of capabilities in her, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: Harvard University Press, 2006), 76�77. 5. Stan van Hooft, Cosmopolitanism: A Philosophy for Global Ethics (Chesham, UK: Acumen, 2009), 79. 6. Henry Shue, ‘Conditional Sovereignty’, Res Publica 8, no. 1 (1999): 1�7. S. van Hooft 382 
work_li3nyxws4bbldkv4qq2hwceuhy	----	Eschatological Justice and the Cross: Violence and Penal Substitution Boersma, Hans ABSTRACT: Recent objections to penal substitutionary views of the atonement argue that they valorize violence. This essay argues that, to the contrary, penal substitution may be viewed as a warrant of eschatological justice that offers hope both to victims and perpetrators of violence. A rejection of all penal justice would contribute to the cycle of violence. Penal justice is a last resort for the sake of God's future eschatological justice. Christ's voluntary self-sacrifice also entails that God takes the punishment for sin upon himself, thus offering the hope of eschatological justice to all. That the cross is the church's central symbol is unlikely to be disputed. Whether this symbol is positive or negative, however, is a question that tends to generate more discussion. To many Christians, the cross is the primary symbol that brings hope for the forgiveness of sins and so for the possibility of new life: Christ's death on the cross means that one's sins have been dealt with and that God's forgiveness is forthcoming. Many have drawn such comfort from the symbol of the cross that they will find it hard to imagine that it could function in any other way. Others, however, point out that the cross has functioned in violent and oppressive ways throughout the history of the church: From Constantine's vision of the cross at the eve of the battle at the Milvian Bridge in the fourth century, to the crusades in the Middle Ages, to the conquistadors in the fifteenth and sixteenth centuries, Christians have used the cross as an excuse for the use of military power, oppression, and other forms of violence. Indeed, many are asking whether the cross is perhaps an inherently violent and oppressive symbol, responsible for abuse and violence not only in the wider military and political realms but also in personal relationships and even in the intimacy of family life. The focus for apprehension about the cross is usually the idea that Jesus Christ suffered punishment for the sake of sinners. A number of feminist scholars, in particular, are of the opinion that the notion of the cross as a form of penal justice is problematic. In her recent book, Embracing Travail, Cynthia Crysdale, for instance, insists: Redemption comes to be understood (under Anselm's influence) as the requirement of a distant, omnipotent God for the satisfaction of his honor. God's mercy gets lost in the idealization of punishment and suffering, and God is seen as sadistic and bloodthirsty. Such a God and the acceptance of our deserved punishment become necessary in order for the message of salvation to mean anything.1 Punishment on the cross, Crysdale asserts, implies a bloodthirsty God. She is not alone in this criticism of the Anselmian tradition's emphasis on penal substitution. Rita Nakashima Brock also criticizes traditional atonement models, saying, "Such doctrines of salvation reflect by analogy, I believe, images of the neglect of children or, even worse, child abuse, making it acceptable as divine behavior-cosmic child abuse, as it were."2 There appears to be a growing concern about an unholy alliance between penal substitution and violence.3 Critics object that penal substitution valorizes unjust violence at both the divine and the human level: God inflicts suffering, while humans are encouraged to accept it. If these objections can be sustained, penal substitution can hardly hold out hope of reconciliation and peace, either with God or among human beings. I am not convinced, however, that the objections are particularly persuasive. On the contrary, I will argue that we may look at divine penal substitution on the cross as an instance of eschatological justice that furthers peace and reconciliation and, as such, offers hope to both victims and perpetrators of violence.4 I readily grant that not all methods of construing a theory of penal substitution are equally hopeful. It may well be that certain ways of understanding this theory have contributed to a judgmental mindset and even to violence. For example, when theories of penal substitution separate God's justice and mercy, perhaps even valorizing the former over the latter, the picture of a "bloodthirsty" God becomes understandable. Likewise, the designation of atonement as "satisfaction," focusing solely on divine wrath, obscures the all- encompassing love of God. The counsel of Nietzsche's Zarathustra is certainly to the point: "Mistrust all in whom the impulse to punish is powerful. They are people of a low sort and stock; the hangman and the bloodhound look out of their faces. Mistrust all who talk much of their justice!"5 Finally, a penal substitution model that construes the punishment of Jesus as inflicted by the Father on an innocent third party cannot avoid charges of abusive violence and injustice. It is fair to say that popular explanations of the atonement have at times fallen prey to such unfortunate misconceptions, and the church needs to be vigilant that it does not become the cause or the occasion of abusive violence.6 When arguing that penal substitution offers hope, I am saying that this is the case only for the theory as I am outlining it in this essay. CRIME, PUNISHMENT, AND JUSTICE To begin, it may be helpful to make some general comments on the nature of punishment. First, punishment assumes an authority structure. If I punish someone, I must be in a legal position to do so; it is not enough simply for me to have the power to take away certain rights or to inflict a certain kind of injury. The same act may be called a punishment in one instance and a crime in another, depending on whether the act is performed with or without the legal authority to inflict punishment. In other words, there is a difference between crime and punishment. This distinction is significant for the topic under consideration. The gospel accounts inform us that Jesus died at the hands of Jewish and Roman authorities. This brings us into the realm of punishment rather than the realm of crime. Theologically speaking, penal substitution assumes that Jesus' crucifixion was not only a human punishment but also a divine punishment. Either way, whether considered from the historical or the theological perspective, the cross is a form of punishment enacted by an authority in a legal position to execute it. Penal substitution, therefore, takes us into the realm of punishment, not into the realm of crime. To justify violent crimes by appealing to divine penal justice thus involves a serious category mistake. Suffering as the result of crime is simply a different kind of suffering than Christ's suffering on the cross. The notions of crime and punishment are not the same, and human criminal behavior cannot properly be modeled on an understanding of the cross as penal substitution. To be sure, it is possible to imagine a person rationalizing forms of criminal violence by means of an appeal to the cross. It is also possible to imagine that people make such a link subconsciously. Nonetheless, when an individual draws wrong inferences from a penal theory of the atonement, the error lies not with the penal theory but with the person drawing the mistaken conclusion. Admittedly, the difference between crime and punishment does not legitimize just any punishment, merely because someone who is in a legal position to do so enacts it. Jacques Derrida reminds us of the important distinction between law and justice. The law never captures justice in its entirety, and justice always needs to do more than calculate mere statistical evidence. Some laws may be patently unjust, implying that some punishments may be entirely misplaced. The injustices of historical, positive laws mean that they are always subject to revision or deconstruction, whereas the notion of justice itself cannot be deconstructed. As Derrida puts it: The structure I am describing here is a structure in which law (droit) is essentially deconstructible . . . . The fact that law is deconstructible is not bad news. We may even see in this a stroke of luck for politics, for all historical progress. But the paradox that I'd like to submit for discussion is the following: it is this deconstructible structure of law (droit), or if you prefer of justice as droit, that also insures the possibility of deconstruction. Justice in itself, if such a thing exists, outside or beyond law, is not deconstructible. No more than deconstruction itself, if such a thing exists. Deconstruction is justice.7 Justice does not blindly apply the law but looks at the particular situation and so comes to a particular decision. John D. Caputo rightly comments, therefore: "Whenever a legal system has been good, whenever it has been something more than a blind and flexible tyrant, whenever laws have protected the weak against the strong and prevented the winds of injustice from sweeping across the land, then the law has been deconstructible."8 These Derridean reflections on justice help clarify questions concerning divine justice in connection with the cross. Is divine punishment on the cross a response to transgressions of a law that has little or no resemblance to eschatological justice? Is this punishment perhaps out of proportion to the transgression that it intends to penalize? Is substitution so out of joint with standards of justice that it obstructs messianic justice? In short, does the divine punishment of Christ on the cross serve or impede the coming of eschatological justice?9 The answers to these questions determine whether God condones arbitrary violence and whether the cross perpetuates human victimization. The notion of eschatological justice is also helpful because it allows us to consider questions of mercy and forgiveness in dealing with justice. If justice always means strict retribution ("an eye for an eye and a tooth for a tooth"), then little room is left for mercy and forgiveness. If, on the other hand, justice looks beyond historically constituted laws, then it is not primarily interested in an uncompromising enforcement of the law. The application of justice, in that case, will take considerations of a higher order into account. It seems obvious that strict retribution does not always encourage the overall well-being of the community. No judicial system prosecutes each and every violation of the law. Various social and economic considerations (financial costs of enforcement, the risk of crime going underground, personal extenuating circumstances, and so on) may lead to leniency in either enforcement of the law or punishment. Why, then, does God punish at all? Why does he not simply forgive? Can God not restore the divine- human relationship without resorting to something that may strike us as offensive and unworthy of God? Similar questions are often asked in connection with the North American system of criminal justice: Why punitive justice?10 Is punishment really necessary if the purpose is ultimately eschatological justice and communal peace? Does punishment not stand in the way of such an eschatological vision? In light of the variety of views on the atonement, this question certainly has its place. If any and all divine punishment would be unjust and abusive in character, then penal substitution would obviously justify the fears of violence and perpetuation of suffering. How, specifically, does punishment in connection with human relationships serve the interests of messianic justice? Punishments can serve different goals: prevention, rehabilitation, deterrence, retribution, or some combination of these four. The first three purposes of punishment in some way or other have the effect of protecting society. Even though the rehabilitative purpose is primarily focused on the cure of the criminal, it also indirectly benefits society since, if the criminal is truly cured, society will not be attacked again. The retributive purpose of punishment is aimed at something greater than society, justice itself, and thus is independent of the good (or, for that matter, the evil) that is brought to others by the execution of the punishment.11 Let us assume for a moment that we do away with all punishment. It seems to me that this would have profound consequences for both the victim and the perpetrator of the crime. It would do away not only with retribution (which aims at satisfying a perceived need for revenge, apart from considerations about the future well-being of the community), but also with the other three goals of punishment, all of which aim at eschatological justice. In terms of prevention and deterrence, an unequivocal rejection of punishment means, at the very least, that the external incentives to stop criminal behavior are being reduced. Why would people stop their criminal behavior unless they expected a legal penalty for engaging in that behavior? "Cheap grace," argues L. Gregory Jones, "denies any real need for deliverance from sin since it justifies the sin instead of the sinner. As such, cheap grace offers consolation without any change of life, without any sense of either dying or rising with Christ. Indeed, cheap grace does not require any embodiment ... ."12 Abolishing all external punishment eliminates a much-needed incentive for the perpetrator to stop the cycle of victimization and so removes the perpetrator's as well as the victim's hope of peace and justice. For the victim, a nonpenal understanding of justice carries a further consequence: There is no recourse for the offence. Regardless how little remorse an offender may show, the victim is forced to accept that society refuses to deal with the crime. The result may well be that "the world will remain forever awry, the blood of the innocent will eternally cry out to heaven."13 Even if the victim of violence is obligated to extend forgiveness, experience dictates that forgiveness is long and arduous, oftentimes not forthcoming at all. If it is to be adapted to real life, the judicial system needs to take into account the victim's difficulty in extending forgiveness to the perpetrator. The strong human propensity to harbor feelings of revenge is a reality in a sinful world: Where victimizing others is not punished, this omission may aggravate the damage done by the criminal, further diminishing prospects for reconciliation. Without punishment, it becomes more difficult to mend the tears in the social fabric and achieve justice.14 An entirely nonpenal understanding of justice is not just, simply because it does not serve eschatological justice. Interestingly, Old Testament law (without which we cannot comprehend our contemporary sense of justice) corroborates the observation that punishment may assist in reconciliation and in the flourishing of the community's justice. The Old Testament also has the peace and reconciliation of the covenant community as its ultimate concern. Judgment (mis pat) must accord with covenant faithfulness or righteousness (s^sup e^daqa).[5 Advocates of contemporary restorative justice initiatives rightly draw attention to the relational connotations of faithfulness and protection that are tied up with the concept of "righteousness."16 Hebrew law removes us far from the blindfolded Roman goddess, Justitia. Or, as Miroslav Volf puts it: "If Justitia is just, then Yahweh is patently unjust."17 Punishment in the Old Testament intends to restore severed relationships and, with this, victims' as well as perpetrators' hopes for peace and justice within the covenant community. It seems clear, therefore, that, under certain conditions, punishment can play a positive role. Rehabilitation, deterrence, and prevention may make punishment a helpful thing, Ultimately, the purpose of punishment is the community's well-being: The crime has affected the community's relationships, which need healing. Punishment can restore hope. To be sure, this apologia for punishment does not settle the question of when to punish. It dees not settle the question of the appropriate degree of punishment in particular situations. The answers to these questions will always depend on ad hoc decisions regarding particular laws and particular people in particular circumstances. MONOTHEISM, JUSTICE, AND PUNISHMENT We can now apply to justice and forgiveness some of our observations regarding the role of punishment. The positive effects of punishments apply not only within human relationships, but also within the divine- human relationship. First, the threat of divine punishment may serve as a deterrent, inclining people to live more virtuous lives, Divine punishment may mitigate the cycle of violence and victimization, thereby offering hope to perpetrator and victim alike. Second, when crime victims are aware that God punishes the criminal, it may assist them in dealing with the consequences of the crime, It may persuade them not to take revenge but to "leave room for God's wrath" (Rom 12:19), knowing that the world will not remain awry forever. Again, this knowledge of God's Justice may help the victim come to terms with the injustice that has occurred and prevent the perpetrator from being victimized in revenge, thus breaking the cycle of crime and victimization. Of course, the hypothetical justifiability of some form of divine punishment does not mean that the specific punishment of Christ on the cross necessarily was appropriate; nor does it imply that the substitutionary character of this punishment is appropriate. This leads us, then, to the particularities of the law that led to Christ's death and to the historical circumstances surrounding it. Do the particular historical structures that enabled Christ's death and their theological appropriation as penal substitution offer hope of reconciliation for both victims and perpetrators? To answer this question, we need to look at the biblical narrative within which the death of Christ occurs. What law is applied in penal substitutionary atonement? And how is this law applied in the crucifixion of Jesus Christ? The "Shema" of Deuteronomy 6:4-5 is the heart of Jewish worship: "Hear, O Israel: The LORD our God, the LORD is one. Love the LORD your God with all your heart and with all your soul and with all your strength." The particularities of Deuteronomic law all have their place in relationship to the confession of the Shema, so that transgression is to some degree a rejection of God, to whom the Israelites owe exclusive loyalty. This confession is also the ultimate standard of eschatological justice. Divine punishment thus is closely connected to the rejection of the covenant relationship between God and his people and of God as the only true God. If the Israelites consistently reject the Shema by worshipping idols, God will curse the people and inflict punishment on them: "But if your heart turns away and you are not obedient, and if you are drawn away to bow down to other gods and worship them, I declare to you this day that you will certainly be destroyed" (Deut 30:17-8). Not every transgression of the law would lead to punishment. According to Old Testament law, Israelites could atone for their sins by means of repentance and sacrifice, thereby restoring fellowship.18 The Deuteronomic law suggests, however, that Israel consistently rejected the very aim of repentance and sacrifice: restoration of, and growth in, its relationship with God. The book of Deuteronomy leads up to God's prediction of the rebellion of Israel, its rejection of the Shema, and thus to exile as the curse of the law.19 The books of Joshua through 2 Kings trace Israel's apostasy leading up to the exilic curse.20 Significantly, exile is God's last option. God resorts to this climactic punishment only when it becomes clear that Israel as a nation has consistently refused to repent and so to obtain forgiveness from God. In other words, exile as punishment for sin salvages monotheistic worship as the very heart of the law. This punishment serves justice: the worship of God, which alone constitutes complete justice. Justice, peace, and worship of the only true God are, at least in the Deuteronomic view, eschatological. Questions about the compatibility of divine forgiveness and punishment thus lead us deeper into the biblical narrative. It is certainly true that God would rather forgive than punish, often does forgive rather than punish, and that not every transgression necessitates divine punishment. But the biblical narrative highlights Israel's consistent rejection of God's plans for justice. Exile seeks to subvert this constant pattern. Israel's lack of repentance, in the end, leads to divine punishment only after Israel has consistently rejected its confession of monotheism. PENAL JUSTICE AND RECAPITULATION Punishment is eminently understandable if the very fabric of justice is at stake and if the punishment serves to advance this justice. This is exactly the role of the punishment of exile according to the biblical narrative. The Old Testament never viewed exile as the final act of abandonment. The exile served the restoration of community. Both Deuteronomy (30:1-10) and the prophets (Jer 31:31-4; Ezek 36:26-7) looked forward to a new covenant in which the relationship with God would once again be restored. Pauline theology proceeds on the assumption that not only is the exile a consequence of Israel's rejection of God, but that, at least in principle, the restoration of Israel also has occurred. Paul refers to the exilic curse of Deuteronomy as "the curse of the law" (Gal 3:13; compare Deut 27:26).21 According to some recent interpretations of Paul, Jesus recapitulated Israel's history, leading up to its exile (as the Deuteronomic curse).22 The return from this exile ultimately could be attained only by means of a resurrection from the dead, an Adamic re-creation (Ezek 37:1-14). In Christ's resurrection, Israel as a whole experiences return from exile and the human race-at least in principle-experiences its restoration and re-creation (2 Cor 5:17). This narrative implies penal substitution-but substitution of a particular kind, one more or less in line with the theology of Irenaeus (c.130-c.200 AD). In his struggle against gnosticism, Irenaeus takes the incarnation of the Word seriously. Only if the Word has truly become flesh is it possible for humans to be redeemed and taken up into the divine life: "For in what way could we be partakers of the adoption of sons," Irenaeus asks, "unless we had received from Him through the Son that fellowship which refers to Himself, unless His Word, having been made flesh, had entered into communion with us?"23 The incarnation, in Irenaeus's view, ultimately leads to the vision of God and thus to fellowship with God.24 The way Irenaeus connects incarnation and eschatological justice is intriguing. He uses the concept of recapitulation, which he understands as a retracing of the pattern of Adam's creation, life, and death that effects the restoration and renewal of humanity.25 The incarnation serves the victory of Christ over Satan and reveals to human beings what the Father is like, so that by imitating the Word, people may be restored to the image and likeness of God.26 These ideas contain the seeds of the later Christus Victor theme and of a moral influence theory of the atonement. But Irenaeus refuses to privilege these approaches at the expense of notions of sacrifice and propitiation.27 Opposing a Marcionite reading of the Old Testament, Irenaeus comments that Jesus "did not make void, but fulfilled the law, by performing the offices of the high priest, propitiating God for men, and cleansing the lepers, healing the sick, and Himself suffering death, that exiled man might go forth from condemnation, and might return without fear to his own inheritance."28 Irenaeus views Christ's sacrificial death as integral to recapitulation-a process initiated by the incarnation that leads to immortality and incorruptibility and thus to the ultimate fruition of eschatological justice.29 In a number of ways, then, the death of Christ as the penalty for human sin-whether a recapitulation of the exile of humanity from the garden of Eden or the exile of Israel from the promised land-serves the purposes of God's eschatological justice. First, the punishment that Christ bears is not simply punishment against this or that particular legal construct. Christ bears the punishment for the rejection of justice itself, of fellowship and life with the only true God. Second, Christ's punishment rehabilitates human beings to fellowship with God. In other words, God wants to give people justice even though they abandon it, so the cross means hope not only for the victim but even for the perpetrator. God does not leave people in the brokenness of injustice but allows Christ to retrace the life and death of Israel (and the life and death of Adam) for the sake of his eschatological justice. Christ's penal substitution needs to be understood in light of the goal of the punishment-restoration of justice and human fellowship with God and each other. One way of articulating the importance of this goal is by means of Richard Mouw's "important distinction between redemptive and masochistic suffering."30 We all can imagine situations in which we would give up something of ourselves in the interest of others. As a parent, I gladly do certain things for my children, even if there is a personal cost attached. I like to think that I would even be willing to die, if that were necessary to save my children's lives. We all view self-sacrifice-the giving of oneself for the sake of others-as appropriate in certain circumstances. This principle is reflected in Jesus' words, "No one has greater love than this, to lay down one's life for one's friends" (John 15:13). Though not all self-sacrifice is appropriate (and it is important not to lose sight of this fact), in certain circumstances it may be a perfectly right thing to do. Christ's sacrifice on the cross was voluntary. From the time of his temptation in the wilderness, he refused to assume the messianic kingship in a way that would subvert justice, even if that meant he could not avoid suffering. The "kingdoms of the world and their splendor," to which Satan alluded, would be his-but he would receive them only by way of suffering and death. This decision implies a significant difference between Christ's suffering and the suffering that results from abuse. Coercion on the part of the perpetrator and involuntary suffering on the part of the victim characterize abusive relationships. Neither coercion nor involuntary suffering can be attributed to Christ's atoning death on the cross. Any attempt to maintain abusive power structures by appealing to the cross is theologically incoherent and morally insidious.31 Anselm already drew attention to the voluntary character of Christ's suffering and death: "God, therefore, did not force Christ to die, there being no sin in him. Rather, he underwent death of his own accord, not out of an obedience consisting in the abandonment of his life, but out of an obedience consisting in his upholding of righteousness so bravely and pertinaciously that as a result he incurred death."32 The consistent biblical witness is that Jesus voluntarily took suffering upon himself as part of his messianic vocation to restore communal justice and peace for Israel and humanity.33 By retracing the steps of Israel and Adam, Jesus vicariously bore the suffering of abandonment and exile. The picture of an angry Father venting his fury on his child is an unbalanced caricature. It does not take into account the utter rejection of God's justice and the consistent refusal of divine forgiveness and restoration-and so it fails to acknowledge God's mercy in dealing with human rejection once and for all. It also neglects to inculcate the aim of penal substitution, namely, restoration of community and eternal peace. Finally, it ignores the voluntary character of Christ's suffering in the interest of this eschatological justice. PENAL SUBSTITUTION AND THE SUFFERING OF GOD For Irenaeus, the incarnation is an indispensable precondition for redemption and for maturation into full communion with God. Irenaeus regards the incarnation as the climax of God's progressive self-revelation, something the Bishop of Lyons traces throughout the Old Testament.34 Indeed, the biblical witness suggests that God does not remain aloof from the human condition. God enters time and space and is affected by them. The Old Testament portrays God as longing and hoping for the restoration of fellowship with Israel.35 Terence E. Fretheim draws attention to a number of passages in the Old Testament that express God's hope for the return and restoration of the people. The opening words of Isaiah 65 provide a striking example: "I was ready to be sought out by those who did not ask, to be found by those who did not seek me. I said, 'Here I am, here I am,' to a nation that did not call on my name. I held out my hands all day long to a rebellious people, who walk in a way that is not good, following their own devices . . . ."36 God yearns for a relationship with the people. This divine hope results in God's suffering emotionally for the sins of the people. In fact, God's hopes for them run so deep that, to sustain them, God bears their suffering. God even carries their burdens and sins.37 God's hope for, and commitment to, reconciliation and fellowship lead to self-giving in the incarnation, which is the climax of God's entry into the material and temporal conditions of life. In the mystery of the incarnation, God takes on human flesh and becomes subject to the conditions of human life, including violence, pain, and suffering. If the incarnation is the ultimate self-revelation of God (Heb 1:1-2), then Jesus' compassion and self- sacrifice reflect God's compassionate self-sacrifice. Irenaeus takes God's involvement with time and matter so seriously that he sees "the impassible becoming capable of suffering."38 The reality of the incarnation, with its intimate connection between the human and the divine natures, means for Irenaeus that God suffers on the cross. If the cross is indeed an instance of divine self-sacrifice, it means that in Christ God has taken the punishment onto himself and that, in the words of Karl Earth, the judge is judged in our place.39 God's self-donation in the crucifixion of Christ speaks strongly to both objections against penal substitution. First, it counters the notion that penal substitution is God's unjust infliction of suffering on an innocent third party. Since God assumes the penalty rather than punishing a third party, God can no longer be construed as a "bloodthirsty" God who punishes the innocent. Rather, by absorbing the punishment and thus enabling humankind to obtain forgiveness, God offers hope for the attainment of ultimate justice. Second, the objection that penal substitution glorifies suffering and so perpetuates victimization is also affected. Not all divine actions are to be imitated: We are not called upon to create the world or to pour out the Holy Spirit. Neither are we in a position to deal with Israel's and humanity's rejection of God's justice. It is God alone who through self-sacrifice opens the way for final justice. Not everyone may find the symbol of the cross hopeful. A careful exploration of penal substitution, however, puts to rest fears of an arbitrary and abusive God and the idea that a Christian doctrine of the atonement need perpetuate human suffering. First, since punishment and crime belong to different categories, the former may not be used to justify the latter. Second, in our sinful world, rejection of all penal justice would only contribute to the cycle of violence and therefore would not serve the hope of eschatological justice. Third, the justification of penal justice in the particular instance of the crucifixion is rooted in the divine determination to uphold the vision of eschatological justice despite the people's consistent rejection of it. Penal justice is thus a last resort that God enacts not for its own sake but for the sake of the future of his eschatological justice. In light of this unique purpose, Christ's voluntary self- donation is not a recipe for the perpetuation of human suffering but a beacon of hope for an end to all victimization. Finally, the mystery of the incarnation implies that God takes the punishment for sin upon himself, thereby offering to perpetrator and victim alike the hope of eschatological justice.40 1Cynthia S. W. Crysdale, Embracing Travail: Retrieving the Cross Today (New York: Continuum, 1999), 115. 2Rita Nakashima Brock, Journeys by Heart: A Christology of Erotic Power (New York: Crossroad, 1988), 56. 3See also Joanne Carlson Brown and Rebecca Parker, "For God So Loved the World?" in Christianity, Patriarchy and Abuse, ed. Joanne Carlson Brown and Carole R. Bonn (New York: Pilgrim, 1989), 1-30; Timothy Gorringe, God's Just Vengeance: Crime, Violence, and the Rhetoric of Salvation (Cambridge: Cambridge University Press, 1996); Aaron Milavec, "Is God Arbitrary and Sadistic? Anselm's Atonement Theory Reconsidered," Schola 4 (1981): 45-94; Craig L. Nessan, "Violence and Atonement," Dialog 35 (1996): 26-35; Darby Kathleen Ray, Deceiving the Devil: Atonement, Abuse, and Ransom (Cleveland: Pilgrim, 1998). Joel Green and Mark Baker also accept the link between violence and penal substitution in Recovering the Scandal of the Cross: Atonement in New Testament and Contemporary Contexts (Downers Grove: InterVarsity, 2000). 4In discussing penal substitution, I am aware that I am not dealing with atonement theology in its full breadth. By arguing that penal justice offers hope, I am therefore not saying that this is the only hope that the cross offers in the struggle against violence. 5Friedrich Nietzsche, "On the Tarantulas," in Thus Spoke Zarathustra (New York: Modern Library, 1995), 100. 6Compare T. Richard Snyder, The Protestant Ethic and the Spirit of Punishment (Grand Rapids: Eerdmans, 2001), 11. 7Jacques Derrida, "Force of Law: The 'Mystical Foundation of Authority,'" in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson (London: Routledge, 1992), 14-5. 8Jacques Derrida, Deconstruction in a Nutshell: A Conversation with Jacques Derrida, ed. John D. Caputo (New York: Fordham University Press, 1997), 130. 9See Nicholas Wolterstorff, "The Contours of Justice: An Ancient Call for Shalom," in God and the Victim: Theological Reflections on Evil, Victimization, Justice, and Forgiveness, ed. Lisa Barnes Lampman with Michelle D. Shattuck (Grand Rapids/Washington: Eerdmans/Neighbors Who Care, 1999), 107-30. 10Christopher D. Marshall, "The Jabs of Justice: Towards a Christian Understanding of Punishment," in Living in the LambLight: Christianity and Contemporary Challenges to the Gospel, ed. Hans Boersma (Vancouver: Regent College Publishing, 2001), 177-99. 11Donald X. Burt, Friendship and Society: An Introduction to Augustine's Practical Philosophy (Grand Rapids: Eerdmans, 1999), 185-6. 12L. Gregory Jones, Embodying Forgiveness: A Theological Analysis (Grand Rapids: Eerdmans, 1995), 13. 13Miroslav Volf, Exclusion and Embrace: A Theological Exploration of Identity, Otherness, and Reconciliation (Nashville: Abingdon, 1996), 294. 14Of course, one might argue that if the perpetrator repents, forgiveness rather than punishment should be forthcoming. The question is, however: whose forgiveness? A third party extending forgiveness on behalf of the victim is usually problematic, and it is hardly the judge's right to forgive a crime. 15B. Johnson points out that msspat not only refers to the verdict of the judge, but can also have the connotation of saving or punishing righteousness, so that the word is at times used in parallel to the word .fdaqa. "tSSiift mispat" in Theological Dictionary of the Old Testament, vol. 9, ed. G. Johannes Botterweok, Helmer Ringgren, and Heinz-Josef Fabry (Grand Rapids: Eerdmans, 1998), 93. The Pauline notion of dikaiosune tou theou likewise refers to God's covenant faithfulness, Compare N. T. Weight, What Saint Paul Really Said: Was Paul of Tarsus the Real Founder of Christianity? (Grand Rapids; Eerdmans, 1997), 93-111. 16Herrrwn Bianehi, Ethiek van het straffen (Nijkerk: Callenhach, 1964), 47-63; Daniel W. Van Ness, Crime and Its Victims (Downers Grove: InterVarsity, 1986), 113-25; Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment (Grand Rapids/Auckland: Eerdmans/Lime Grove, 2001)), 35-95. 17Volf, Exclusion and Embrace, 221. 18Compare John H. Hayes, "Atonement in the Book of Leviticus," Interpretation 52 (1998): 10-2; E. P. Sanders, Paul and Palestinian Judaism: A Comparison of Patterns of Religion (Philadelphia: Fortress, 1977), 157-82. 19Deut 28:32, 36-7, 49-52, 63-68; 29:28; 31:16-22, 29. The Song of Moses that the Israelites are to sing (Deut 32) is to function as a self-indictment. 20Gordon McConville, Grace in the End: A Study in Deuteronomic Theology (Grand Rapids: Zondervan, 1993), 65-122. 21Compare Joseph P. Braswell, "The Blessing of Abraham' versus 'The Curse of the Law': Another Look at Gal 3:10-13," Westminster Theological Journal 53 (1991): 73-91; N. T. Wright, The Climax of the Covenant: Christ and the Law in Pauline Theology (Minneapolis: Fortress, 1992), 137-56. 22The notion that on the cross Jesus took Israel's exile onto himself can be argued from (1) the fact that people in Second Temple Judaism commonly looked at themselves as still being in exile, (2) the lack of fulfilment of prophetic promises of restoration, and (3) the narrative logic of Pauline theology. Compare Craig A. Evans, "Jesus and the Continuing Exile of Israel," in Jesus and the Restoration of Israel: A Critical Assessment of N. T. Wright's Jesus and the Victory of God (Downers Grove, IL/Carlisle, UK: InterVarsity/Paternoster, 1999), 77-100; N. T. Wright, The New Testament and the People of God (Minneapolis: Fortress, 1992), 268-72; N. T. Wright, Jesus and the Victory of God (Minneapolis: Fortress, 1996), 268-74. 23Irenaeus, Adversus Haereses [AH] III. 18.7, in Ante-Nicene Fathers, vol. 1, ed. Alexander Roberts and James Donaldson (Peabody: Hendrickson, 1994), 448. Compare AH III.22.1-2; V.1.2, 14.1. 24See Mary Ann Donovan, "Insights on Ministry: Irenaeus," Toronto Journal of Theology 2 (1986): 82-5. 25On Irenaeus's understanding of recapitulation, see my "Redemptive Hospitality in Irenaeus: A Model for Ecumenicity in a Violent World, Pro Ecclesia 11 (2002): 207-26; Terrence L. Tiessen, Irenaeus on the Salvation of the Unevangelized (Metuchen, NJ: Scarecrow, 1993), 158-62; Gustaf Wingren, Man and the Incarnation: A Study in the Biblical Theology of Irenaeus (Edinburgh: Oliver and Boyd, 1959). 26See, e.g., AH III.18.7; V.1.1. 27Andrew J. Bandstra, "Paul and an Ancient Interpreter: A Comparison of the Teaching of Redemption in Paul and Irenaeus," Calvin Theological Journal 5 (1970): 43-63. 28Irenaeus, AH IV.8.2. 29By using the Irenaean notion of recapitulation, I am arguing that substitution docs not mean that Christ suffered instead of others, but suffered on their behalf, as their corporate representative. Compare Marshall, Beyond Retribution, 61. I argue the case for representative punishment more comprehensively in my forthcoming book, Hospitality, Violence, and the Cross: Contemporary Explorations in Atonement Theology (Grand Rapids: Baker, 2004). 30Richard J. Mouw, "Violence and the Atonement," Books & Culture (Jan./Feb. 2001), 15. 31Ray attempts to overturn this argument by saying that many battered women return to increasingly dangerous relationships and that the notion of Christ's freely chosen obedience makes self-sacrifice normative for Christians. Deceiving the Devil, 58-60. But this argument proceeds on the assumption that battered women freely choose their dangerous relationships. Freely chosen relationships naturally imply moral responsibility. Ray's argument, therefore, cannot avoid assigning blame to the victim. The wrong attribution of free choice to the victim inadvertently revictimizes her. 32Anselm, Cur Deus Homo 1.9, translated in The Major Works, ed. Brian Davies and G. R. Evans (Oxford: Oxford University Press, 1998). 33G. C. Berkouwer cites these passages as indicating the voluntary character of Christ's suffering: Isa 53:7, 10-2; Mark 10:45; 15:23, 36; Luke 23:46; John 10:11, 15, 17-8; 13:1. Het werk van Christus (Kampen: Kok, 1953), 154-5. 34Irenaeus, AH IV.10.1. Compare Irenaeus, Proof of the Apostolic Preaching (New York: Paulist, 1952), 25, 27, 43-85; Tiessen, Irenaeus, 142-9. 35Gerhard Sauter comments on the relation between God's hope and our hope: "There is even God's hope: We are his hope because we are expected, like the prodigal son (Luke 15:11-32). God waits patiently and tirelessly for the transfiguration of human expectations to the confidence in God's promise and creative acting. God expects us to leave room for God's redeeming activity. On this hope rests our hope." "Our Reasons for Hope," in The End of the World and the Ends of God: Science and Theology on Eschatology, ed. John Polkinghorne and Michael Welker (Harrisburg, PA: Trinity, 2000), 214. 36Fretheim also refers to the "desiderative particles" in passages of lament (Ps 81:8; Isa 48:18; Deut 5:29) and to the pain of God's dashed hopes for a relationship with God's people (Isa 42:18, 23; 48:12, 18; 50:2; 65:12; 66:4; Mic 6:3). The Suffering of God: An Old Testament Perspective (Philadelphia: Fortress, 1984), 119. 37Compare Isa 1:14; Jer 44:22. 38Irenaeus, AH III. 16.6. Compare AH III.20.4; IV.20.8. 39Karl Earth, Church Dogmatics (Edinburgh: T&T Clark, 1956), IV/1, 211-83. Compare John Stott, The Cross of Christ (Downer's Grove: Intervarsity, 1986), 156-63; Miroslav Volf, "The Trinity Is Our Social Program': The Doctrine of the Trinity and the Shape of Social Engagement," Modem Theology 41 (1998): 403-23. 40I want to thank Dr. Miroslav Volf and the other members of the seminar on "Modernity, Postmodernity, and the Future of Hope" for their helpful comments on an earlier draft of this paper. The research for this paper was made possible through financial support of the Pew Charitable Trusts. I especially extend ray appreciation to Anna Mae Bush and the other staff of the Seminars in Christian Scholarship for the hospitality that they offered during my stay at Calvin College. Hans Boersma holds the Geneva Chair in Reformational Worldview Studies at Trinity Western University (Langley, BC). He is the author of several books, including A Hot Pepper Corn: Richard Baxter's Doctrine of justification in Its Seventeenth-Century Context of Controversy (1993). Copyright Theology Today Jul 2003 Provided by ProQuest Information and Learning Company. All rights Reserved 
work_ljr35l2hurga5fafxcgryiu3hi	----	Semenya Revised MCP Article 12/05/2011 1 Doing Epistemic (In) Justice to Semenya Abstract: In August 2009, Caster Semenya won the women’s 800m event at the International Association of Athletics Federations World Championships in Berlin. This victory became a global news story not because Semenya was a newcomer to athletics who had outperformed an established field – but because of the fact that before the race she had been asked to undergo tests to determine whether or not she was a woman. This article uses a hermeneutics of suspicion to argue that the controversy surrounding Semenya was based on a set of assumptions that, although incorrect, drew on hegemonic understandings of sex and gender that dominate the discourse of sport, and were adopted by the media without question. As a consequence, Semenya became the victim of what Miranda Fricker has termed epistemic injustice – a condition that arises when individuals or experiences are marginalized as a result of the absence of concepts and language that would enable us to articulate reality differently. Key words: Athletics, BBC, DSD, Gender Verification, Intersex, Sex Testing, Sport. Framing the Issue On 19 August 2009, 18 year-old South African Caster Semenya won the final of the women’s 800m at the International Association of Athletics Federations (IAAF) World Championships in Berlin with a time of 1:55:45. What made this victory a global news story was not that Semenya was a relative newcomer to international athletics who had finished well ahead of an established field. Rather, coverage focused on whether Semenya should have been allowed to compete at all, as it was public knowledge that before the race the IAAF had demanded that she undergo tests to determine whether or not she was a woman. Over the following months a number of stories appeared across the media, based on assumptions drawn from the framework established by the sports 12/05/2011 2 community – in particular that any evidence of maleness in a female body would confer an inherent advantage over any body that was exclusively female. This view passed without question from the sporting community (notably the athletics governing body the IAAF and other athletes) via the media into public discourse, and structured all the coverage surrounding the case – even that of pre-eminent public service broadcaster the BBC who, rather than seeking to hold the athletics authorities to account, fell into the trap of accepting the paradigm offered at the expense of delivering coverage that offered a fair and balanced analysis of the issues. The assumptions on which the BBC assumed there was consensus can be summed up as follows: (i) Semenya’s performance on 19 August was so exceptional as to raise doubts that it could have been achieved by a ‘normal’ woman. (ii) An appropriate response to concerns over exceptional female performance is to require the athlete to undergo a series of tests to determine whether or not she is ‘truly’ a woman. (iii)That if sex testing showed that her body in any way differed from that of a ‘normal’ woman, then she would have an unfair advantage over her fellow competitors. I propose to show that, although drawing on hegemonic understandings of sex and gender that are particularly prevalent in sport – a discourse based on the notion of a fundamental and deterministic binary model of sexual difference, combined with an assumption that men have an inbuilt athletic superiority - all three of these are incorrect. Responding to Foucault’s call to ‘think differently’ (1992: 9) this article seeks to address the Semenya controversy through a hermeneutics of suspicion, an approach that seeks to expose untenable claims by suspecting the credibility of the superficial text (Pepa, 2004). The original masters of suspicion (as named by Paul Ricoeur) were Marx, Nietzsche and Freud. More recently Marcella Althaus-Reid, drawing attention to the importance of 12/05/2011 3 questioning the taken-for-granted that has underpinned the most significant contributions to feminist and queer thinking, has cited Judith Butler, Mary Daly and Luce Irigary as contemporary masters (or should that be mistresses?) of suspicion (2004: 70). In what follows I will invoke my own masters of suspicion, scholars whose goal is nothing short of overturning what is perhaps one of the last remaining grand narratives – that there are two (and only two) sexes, that each of us fits neatly into one or the other, and that if the borders between the two are transgressed then something is wrong and needs to be corrected. Because the BBC (along with the media more generally) followed the lead of the IAAF in accepting the above assumptions, the controversy surrounding Caster Semenya becomes a paradigm case of what Miranda Fricker has termed epistemic injustice - an injustice caused by “structural prejudice” (2007:1). Fricker’s invocation of this term enables us to address the discourse that surrounded Semenya without implying that either the IAAF or BBC media coverage intended to harm the athlete, or were even aware that they might be doing so – even though our common-sense understandings of sex and gender make harm the inevitable result of calling into question someone’s right to membership of what is seen as a clear-cut biological category. Fricker’s work is important to my analysis, as her feminist epistemology can be linked to critiques of the science that have informed the development of our understanding of the biologically sexed body. In arguing that her task is to ask questions “in the context of socially situated accounts of our epistemic practice” (p. 3), Fricker acknowledges that the term ‘socially situated’ originates in the work of feminist philosopher of science Donna Haraway. Haraway also proposed the term material-semiotic in an attempt to reconcile, in the light of a post-Kuhnian approach to science, the problem of accounting simultaneously for the historical contingency of knowledge claims while maintaining a “no-nonsense commitment to faithful accounts of a “real” world” (Haraway, 2004: 85). The same insistence on recognising the linked nature of both the material reality of biology and the influence of culture in framing the paradigms through which we understand the real world is also central to the work of Anne Fausto-Sterling, whose Myths of Gender (1985), Sexing the Body (2000) and numerous articles have been central to drawing attention to 12/05/2011 4 inadequacies of the two-sex model of the body. This commitment to ‘reality’ is also important to Fricker, who recognizes that what she describes as “the extremist bent in so much postmodernist writing” (2007: 2) has resulted in the exclusion from Anglo- American epistemology of theorizing that politicizes epistemic practice, on the grounds that such thinking was necessarily allied with a relativistic position – regarded as anathema in the Anglo-American tradition. In the work of Fricker, epistemic injustice takes two forms – testimonial and hermeneutic. She sees the former – in which identity prejudice on the part of the hearer causes them to give the speaker less credibility – as the most common. Yet it is the second form which interests me, as hermeneutical injustice results from a “gap in collective interpretive resources” (p. 1) with the result that, because of hermeneutical impoverishment, “both speaker and hearer are labouring with the same inadequate tools” (p. 7, my emphasis). By this, Fricker means that the injustice is committed unknowingly because, collectively, we do not have the intellectual tools to unpick the assumptions inherent in the discourse. The result is a “hermeneutical darkness” (p. 149) in which some people and experiences are marginalized as a result of the absence of concepts and language that would enable us to articulate reality differently. Yet Fricker is also clear that hermeneutical injustice is not merely a case of what she calls ‘epistemic bad luck’. In the case of hermeneutical injustice it is no accident that the experience of the hermeneutically marginalised falls “down the hermeneutical cracks” – as “the whole engine of collective social meaning [is] effectively geared to keeping these obscured experiences out of sight” (p. 153), for at the heart of epistemic injustice lies a structural inequality of power. Binary Sex and the Sporting Body Sport brings the two-sex narrative into sharp relief. Reflecting on the discourses that govern the production of the sporting body, Susan Birrell and Cheryl L. Cole have noted that sport is not only a gender-producing, gender-affirming system – it is also a difference producing system. In this way it becomes one of the major sites for the naturalization of 12/05/2011 5 sex and gender differences, with the implication that superior athletic prowess is the natural domain of men (1994: 232-3). Raymond Boyle and Richard Haynes note that sport has always been a sexual battlefield, with biological difference being central to the construction of sport in society, and essentialist ideas of the body being maintained more frequently in sports discourse than in any other public domain (2000: 127-8). Deborah Stevenson agrees – suggesting that sport is a site where men can affirm physical, symbolic and economic dominance over women (2004: 280). It follows from this that hegemonic notions of masculinity and femininity are central to representations in both men’s and women’s sport, and that failure to conform to norms of physical appearance results in disciplining by the sports community, of which sports journalism is an influential pillar. The consequence is that: “Women who breach the boundaries of sports femininity and appear too muscular, powerful – or, indeed, too good – are subjected to subtle forms of discipline which ensure that they and their sport do not threaten the superiority of men” (Stevenson, 2004: 280). Corey Johnson and Beth Kivel have pointed out that the discourse of sport reflects a set of social structures that make dominant hegemonic categories seem natural, with gender grounded in an interpretation of two exclusive sexes (2007: 97), while Andrew Sharpe has gone further and argued that sport is the discourse in which the naturalization of two discrete biological sexes is most firmly entrenched (2002: 131-4). Laura Wackwitz notes that the near equation of sex with gender remains largely unquestioned in the international athletic community so that “The three terms “sex testing”, “gender verification”, and “femininity testing” are used nearly interchangeably by Olympic officials, athletes and reporters for the popular press” (2003: 554). While sport may link these terms unproblematically, the nature of their relationship has been a source of debate and tension within feminist theory since the advent of the second wave when Simone de Beauvior opened Book Two of The Second Sex (titled ‘Woman’s Life Today’), with the claim that “One is not born, but rather becomes a woman” (1983: 295). De Beauvoir’s work marked the starting point of a turn towards constructionism that sought to separate out the cultural inscription of gender from the biology of the sexed body. This move resonated with the turn to postmodernism and the privileging of 12/05/2011 6 language that (in the field of feminist theory) is frequently seen to reach its apogee with Judith Butler’s Gender Trouble (1990), which put forward a performative theory of gender, expanded on in Bodies That Matter, where Butler sought to argue that there was no sex that was not already gender, and that “the regulatory norms of “sex” work in a performative fashion to constitute the materiality of bodies” (Butler, 1993: 2). Yet what was seen as the extreme linguistic relativism of Butler’s work was contemporary with a turn to ‘corporeal feminism’ as exemplified by the work of Elizabeth Grosz (1994) and Moira Gatens (1996) that sought to reintroduce questions of the body into the heart of feminist thinking. This psychoanalytically and philosophically informed work developed alongside work by feminist biologists that sought to draw attention to the complexity of sex determination. Leading the field was Anne Fausto-Sterling whose work has, over the past twenty-five years, sought to bring to light the lack of substance behind ideas about biologically-based sex differences (see Fausto-Sterling, 1985, 1993, 2000, 2005 for key examples of her contribution to the debate). Taking a lead from Grosz’ work on the relationship of body and mind, Fausto-Sterling appropriates the analogy of the Möbius Strip to consider how biology and culture flow together in determining our understanding of the sexed body (Fausto-Sterling, 2000: 24-25). In the absence, in public discourse, of this sophisticated understanding of the relationship between sex and gender that has developed – and is continuing to develop – in gender studies, and with the imposition of femininity as the definitive marker of womanhood, the physical appearance of women sports personalities becomes key to their acceptability to fellow athletes and the sports-loving public. While what constitutes the acceptable female sporting body varies from sport to sport, there remains a core femininity that requires appropriate dress, adornment, deportment and interest in things ‘girly’ (notably clothes and shopping). Given the controversy surrounding her, it is perhaps no surprise that Semenya falls foul of this discourse. Based on her appearance alone, certain sections of the UK press had no doubt that she was not a woman. Tabloid newspaper The Sun reported her victory with the headline ‘800m and two veg’, while the ‘quality’ Daily Telegraph likened both her voice and looks to those of former World Heavyweight Boxing champion Frank Bruno (McRae, 2009). 12/05/2011 7 Even Donald McRae’s sympathetic article in Guardian Sport, published in November 2009 when the IAAF findings on Semenya were believed to be imminent, is redolent with phrases that note the way in which Semenya displays many of the signifiers of masculinity. From noting that, from a distance, even her coach cannot tell if she is a boy or a girl, McRae continues by referring to her “crunching” handshake, her muscled frame (in contrast with which Britain’s Jenny Meadows – who took Bronze in the 800m on 19 August – “looked diminutive and slight”), and her “girly lament” about not being able to go shopping any more “sounding heart-wrenching when uttered in her relatively gruff voice”. He also reports how from a young age “Caster was teased and mocked as a tomboy” and how her former headmaster reports that while she tried different hairstyles he had never seen her in a skirt or dress – “always trousers”, creating a narrative in which Semenya has always been different (McRae, 2009). The comments surrounding Semenya’s appearance, and lack of appropriate feminine behaviour, highlight the way in which sport (and sports journalism) pursues a particular narrative of what it means to be a woman, and requires participants to overcompensate in their performance of femininity in order to conform to an understanding of gender that makes athletic physicality inconsistent with womanliness. This means the more successful the athlete the more they need to dispel anxiety about their place in the hierarchy of sexual difference. If we adopt the traditional (albeit simplistic) distinction of seeing sex as biological and gender as cultural, it is clear that Semenya failed to ally suspicion about her sex through her performance of gender, with even the ANC (who were vocal in her support) acknowledging her masculine build (BBC Sport, 2009b). Yet the IAAF side-stepped the issue of her appearance (as, indeed, the controversy sought to side-step issues of race), insisting that it was her allegedly world-beating times that had prompted their concerns and led to the request that she undergo a series of tests to establish her biological sex. But were these times really so exceptional that – had they not been accompanied by comments about her appearance – warning bells would have sounded? 12/05/2011 8 An Impossible Performance for a Woman? One of the key assumptions that dominated coverage of Semenya was that her performance was so exceptional that it called into question the possibility that it had been achieved by a ‘normal’ woman. The most consistent feature of BBC Sport’s reporting of the controversy was its repeated reference to her margin of victory in the 800m final. Between 19 August and 19 November 2009 the sports section of BBC News Online ran nine articles on Semenya (BBC Sport, 2009 a,b,c,d,e,g,h,i,j) with a further article consisting of an interview with Indian athlete Santhi Soundarajan who had been banned from international athletics by the Indian Olympic Association in 2006 following a failed gender test (BBC Sport, 2009f). Five of the articles noted that Semenya had broken Zola Budd’s South African record [of 2:00:09] set in 1984, and all nine drew attention to the fact that Semenya had beaten defending IAAF world champion Janeth Jepkoskei by almost 2.5 seconds. Yet one name absent from the coverage was Pamela Jelimo, the Kenyan athlete who took the gold medal in the 800m at the 2008 Beijing Olympics. Born in December 1989 Jelimo is only 13 months older than Semenya – so she was almost exactly the same age in August 2008 as Semenya was in August 2009. And Jelimo’s athletic prowess casts Semenya’s success in a rather different light. Jelimo won her Olympic Gold with a time of 1:54:87, a time she bettered later that month (August 2008) in Zurich when she ran a time of 1:54:01 (1:44 seconds faster than Semenya ran in Berlin). Moreover – like Semenya – Jelimo came ‘out of nowhere’. Lauded by the IAAF as the 2008 Golden Girl of Athletics, the following comes from the IAAF 2008 Yearbook: In four months Jelimo went from unknown runner to Olympic gold medallist. … Jelimo began the year as a raw novice who finished 39th in the Kenyan Junior Cross Country Championship. She was not even among the 400 athletes listed in the Peter Matthews edited International Track and Field Annual for 2008. But from April to September , she proved unstoppable, winning all 15 of her races. She became Kenya’s first Olympic women’s athletics champion, took the African title, scooped $1m as the only athlete unbeaten in six Golden League meetings, and triumphed at the World Athletics Final. Yet that was only half the story. From the moment she first made her mark on the World Athletics Tour, in Hengelo in May, 12/05/2011 9 Jelimo was a record-breaking machine. She lowered the World Junior record five times and the African record four times. (http://www.iaaf.org.news/kind=103/newsid=49201.html.) The article continues by quoting Sebastian Coe (former world record holder in the men’s 800m), who praises Jelimo as a “stunning talent” with the potential to break Jarmila Kratochvilova’s 800m world record time of 1:53:28 set in 1983 (2.17 seconds faster than Semenya ran in Berlin). It seems astonishing that BBC coverage fails to make any mention of an athlete who, just one year earlier, would have left Semenya –if not trailing in the dust – at least some way behind, but who at the Berlin World Championships was eliminated during the heats. What this makes clear is that – contrary to the implications of statements made by the IAAF and subsequent media coverage - Semenya’s performance does not overshadow that of her fellow competitors. Yes, her performance at 800m in 2009 was far better than her closest rivals that year. But looked at in a broader context, and with only a marginally longer timescale, there are other women athletes whose performance is at least comparable, and even superior, but whose sex/gender has not been publicly called into question. Indeed, Semenya’s own performance record in her other event, the 1500m, provides no grounds for regarding her as mysteriously exceptional. Much was made of the vast improvement she made over 800m between 2008 and 2009, during which she knocked more than seven seconds off her personal best. Not surprisingly, similar improvement took place in her performance at 1500m. In 2008 her best time at this distance was 4:33:25 run in Rustenburg on 29 March. On 2 August 2009, at the African Junior Athletics championships in Bambous, she ran 4:08:01. Semenya did not enter the 1500m in Berlin. Yet had she done so she would have needed a significant improvement on even this performance if she were to have finished ahead of Maryam Yusuf Jamal who won the event in a time of 4:03:74. Indeed the first eight runners in the 1500m final finished with times better than Semenya’s personal best. Making reference to this would, once again, have cast Semenya’s case in a very different light by contextualising the level of her performance, yet the BBC either did not pursue this line of enquiry – or chose to ignore it in favour of a more simplistic and sensational story. 12/05/2011 10 If the most repeated aspect of BBC coverage of Semenya’s performance in Berlin was her margin of victory, the story soon developed into attempts to explain the reason for this and the nature of her supposed advantage. On 25 August, in what was described as a ‘new twist’ to the ‘saga’ BBC Sport reported that tests had revealed Semenya to have higher than normal testosterone levels (BBC Sport, 2009c,e). Later reports noted that the BBC understood that tests were likely to show Semenya had an ‘intersex’ status (BBC Sport, 2009 e,f,h), explaining this to mean that the subject has both male and female sex characteristics. How these might manifest was never specified – but as it is accepted that Semenya’s external sex characteristics are female (at birth no one questioned that she was a girl) the implication (although never stated as such) must be that her internal sex organs are male (testes) rather than female (ovaries) - leaving the reader to conclude that this, in itself, is sufficient to confer an unfair advantage on the athlete on the assumption that any evidence of maleness would inevitably confer a degree of competitive superiority over an entirely female body. Yet this is widely disputed by those who understand the range of intersex conditions and their varied effects on human physiology (Opie, 2001; Ritchie, et. al. 2008). Even if Semenya does have an increased level of testosterone, any intersex condition she might have makes it almost certain that it would provide no unfair advantage. But does she have an exceptionally high testosterone level? In its report on the ‘new twist’ to the ‘Semenya gender saga’ the BBC leads with the news that the athlete’s testosterone levels have been reported as being three times those normally expected in the female population (BBC Sport, 2009c). The report goes on to state that it was this high level of testosterone – detected by tests undertaken in South Africa – that contributed to the IAAF decision to have further tests carried out. This is subsequently linked to a “hermaphroditic or intersex condition” (BBC Sport, 2009e). But the ‘normal’ level for male testosterone is ten times the ‘normal’ female level (Connor, 2008). Context clearly matters here, as a comparison between Semenya and men would cast her test results in a very different light to a comparison with other women. But the BBC fails to provide this framing and leaves the public to draw an inappropriate inference from a fact taken out of context. 12/05/2011 11 Fausto-Sterling (2000: 170-194) provides grounds to question the significance attached to the role of hormones in sex determination, but even without taking the hermeneutics of suspicion that far, we can say that the reality is that testosterone levels vary widely not only between men and women but also within male and female populations. It is inevitable that some women will have higher than ‘normal’ levels – just as it is inevitable that, for some women, their level of testosterone will be lower than ‘normal’. Moreover, sporting competition is rife with inherent – natural - differences that confer competitive advantage on some participants. Sharpe notes that factors such as heart size, lung capacity, muscle mass and body fat often traverse, rather than parallel, the division of sex (2002: 132), and David McArdle highlights the problems involved in applying the concept of the ‘average’ person to sport, as those involved will usually possess physiques, strength and levels of stamina that are above average, almost by definition. He notes that six-foot plus biological women with considerable stamina are not exceptional, particularly in elite sport, and that in February 2007 all top 20 female tennis players in the world were at least 4cm above average height (McArdle, 2008: 48-9). Similarly, Mandy Merck (2010) has noted the range of genetic advantages (such as the height of basketball players) that sport accommodates without question. Expecting ‘normality’ in an elite athlete is a contradiction in terms. Nevertheless, in the mid-1960s a concern with ‘fairness’ resulted in the introduction of compulsory sex testing in international athletics, and the insistence in sport that it is possible to find a definitive test for womanhood . Over the years a variety of techniques were used, but as Wackwitz has noted “Each advance in screening technology has failed to provide a definitive and undisputable marker of the category “woman”” (2003: 555). Recognising that there was no definitive way to distinguish between male and female bodies, in 1992 the IAAF abandoned the notion of compulsory sex testing, with the IOC following suit after the Olympic Games in Atlanta in 1996. 12/05/2011 12 The Challenge of Determining Sex Sex testing of female athletes began during the Cold War in response to concerns that a small number of athletes from countries of the Eastern Bloc might be deliberately masquerading as women in order to gain competitive advantage and bring glory to their respective countries. The 1966 European Athletics Championships saw the introduction of ‘nude parades’ in which all female competitors were required to appear before a panel of three women doctors who confirmed they possessed female genitalia. All those attending the parade passed the visual inspection, although five East European world record holders suddenly withdrew from competition – including Russian sisters Irina and Tamara Press, who between them had dominated a variety of track and field events in the 1950 and 60s, achieving 26 world records and winning six Olympic gold medals (Ritchie et. al., 2008; Skirstad, 2000). With the possible exception of those athletes who decided not to turn up in 1966, testing has never identified an individual deliberately misrepresenting their gender, although it has created embarrassment for competitors whose bodies have, unknowingly, been found not to conform in a straightforward way to the two-sex model of sexual difference. In this context, it is important to note that the IAAF has never suggested that Semenya deliberately misrepresented herself as a woman. As the first report from the BBC made clear, IAAF spokesman Nick Davies was adamant that the situation in which the athlete found herself was not her fault, and recognised that telling someone who had been brought up female that they were, in fact, a man was a very serious issue (BBC Sport, 2009a). It is agreed by all that Semenya’s birth certificate registered her as female, that she had been brought up as a girl, and showed no evidence of external male genitalia. This raises an intriguing question. Is it possible to be brought up as a woman, but actually to be something different and not know it? The answer is yes. It is a commonplace that the first question asked about a baby is “is it a boy or a girl?”. In the vast majority of cases the answer is given immediately on the basis of an inspection of the child’s external genitalia. Only when this appears ambiguous do questions arise – at which point the situation is treated as an emergency and steps are taken to resolve the 12/05/2011 13 uncertainty (Chase, 2006; Hird, 2000). Yet as the IAAF acknowledged, sex determination is not quite that simple, as underlying non alignment of adrenal, hormonal and genetic function does not always result in the development of visually ambiguous sex (Holmes, 2009: 3). As Nick Davies indicated, sex testing is “extremely complex”. In Semenya’s case it would involve an endocrinologist, a gynaecologist, an internal medicine expert, an expert on gender and a psychologist, and the results would not be known for several weeks – or, as it turns out, months (BBC Sport 2009a). While experts in the field would agree with Davies’ assessment of the range of factors involved, many are less likely to agree that there would – eventually – be a definitive outcome. Despite this, the only expert quoted in the BBC Sport reporting, John Wass, professor of endocrinology at Oxford University, seemed not only to think that any tests would be conclusive – but that determination is simpler than the IAAF indicate. According to Wass there are three aspects that determine whether a person is a man or a woman: chromosomal sex (which can be decided in about a fortnight on the basis of a few cells scraped from inside the mouth and which show XX for a woman and XY for a man), what your external genitals look like, and, finally, what you feel you are (BBC Sport 2009b). No mention is made of the fact that these three aspects might not align. However, the medical community agrees that there are eight criteria to be taken into account in determining sex (Ljungqvist, 2000: 188), and while it is common for these to align, it is not a requirement that they do so. The many ways in which this non- alignment may manifest have tended to be known, collectively, as intersex conditions (the term adopted in BBC journalism) and became politicized in the mid 1990s through campaigning by the Intersex Society of North America (ISNA) that, encouraged by the publicity generated by an article in the New York Times by Anne Fausto-Sterling that argued for five sexes (Fausto-Sterling, 1993), sought to end early medical intervention that claimed to ‘fix’ children born with any kind of bodily anomaly on the grounds that such interventions were rarely necessary on medical grounds and tended to do more harm than good (Chase, 2006). But while the late twentieth and early twenty-first centuries 12/05/2011 14 saw the flowering of a framework for intersex that sought to confront a world informed by the premise of defect rather than of neutral variation (Holmes, 2009: 6), more recently the movement has begun to lose ground to a more medicalized outlook. While the underlying issues of biology have not changed the hermeneutics have, as suspicion is once again replaced by pathologization, with moves to have the value-neutral term intersex replaced by that of disorders of sexual development. As Alyson K. Spurgas notes: The discursive shift to DSD signifies not only the distancing of intersex from radical GLB, trans and other queer identity movements, it also heralds a new mode of association and identity around the medicalized body and a new understanding and way of living in the body itself (2009: 104). In 2006 the ISNA renamed itself the Accord Alliance and switched to the exclusive use of the nomenclature of DSD, although not all other activist organisations have followed suit. Much of the current debate draws on the fact that for many of those born with intersex conditions “this physical atypicality in no way compromises normative gender identity” (Spurgas, 2009: 97), so that they are anxious not to find themselves allied in any way with those who seek to politicize their condition and feel uncomfortable being included under the banner of queer. Framing intersex as a disorder marks a biopolitical shift that puts the focus on disciplining and normalizing bodies that fail to conform to a two-sex system. It also allows the intellectual framework within which non-binary sexual development is discussed to shift from the paradigm of queer theory to that of disability studies – perceived by many as inherently more respectable. Yet the intellectual shift from queer to disability may not prove to be the paradigm change it initially appears, as Crip Theory emerges as a discourse that seeks to politicize disability and focus on the challenges it poses for notions of bodily ability and related notions of normality (McRuer, 2006). While the debate between the paradigms of intersex and DSD continues to play out in the theoretical literature, the evidence is that the International Olympic Committee has opted to embrace the medicalized framework of DSD. In February 2010 BBC News reported 12/05/2011 15 on a meeting of the IOC General Assembly where the head of its Medical Commission, Professor Arne Ljungqvist, recommended that “strategically located centres of excellence should be established to which athletes with a DSD could be referred and, if necessary, further investigated and treated” (BBC News, 2010a). In contrast to the BBC Sport reporting, this report balanced the views of Professor Ljungqvist with recognition that the terms now being used – “eligibility, diagnosis, disorder, treatment and surgery” – had triggered alarm throughout the sporting world, particularly given that the IOC did not accompany its pronouncements on the possibility of compelling some athletes to undergo treatment with any indication of the criteria that would be used to determine gender, or even a reassurance that such treatment would only be required if it were demonstrated that any anomaly conferred an advantage. Additionally, by framing any disorder of sexual development as a defect that not only can – but should – be treated even if there is no medical reason to do so, the IOC is contributing to a discourse that pathologizes the sex-variant body and produces the very stigma that the majority of those with variant bodies are seeking to avoid, and that drives their reluctance to be part of a queer alliance. What Next for Semenya? A BBC report posted online on 10 June 2010 indicated that Caster Semenya would learn that day whether she would be able to resume her career (BBC Sport, 2010c), but a little over an hour later the page was updated to report that the news conference intended to announce the verdict had been cancelled (BBC Sport, 2010d). Both the 10 June reports reminded readers of Semenya’s margin of victory the previous August. The decision of the IAAF on Semenya’s eligibility to compete as a woman – originally scheduled for November 2009 – was announced finally at the beginning of July 2010. The announcement stated “The IAAF accepts the conclusion of a panel of medical experts that she can compete with immediate effect. Please note that the medical details of the case remain confidential” (BBC Sport, 2010e). In case anyone had forgotten the earlier coverage the report again noted Semenya’s 2.45 second margin of victory over defending champion Janeth Jepkosgei. The same day, on his BBC blog, sports correspondent Gordon Farquhar posted that, although it had never been confirmed, he was convinced that the athlete had undergone treatments “for some kind of inter-sex condition” and that 12/05/2011 16 she was now in a position to compete without unfair advantage (Farquhar, 2010). The implication here is clearly that, at the time of her August victory there had been some sort of (unspecified) advantage – despite the fact that all the medical evidence on the effects of intersex conditions on human physiology fails to support this. It is clear that, despite this outcome, the doubts raised in the Summer of 2009 remain. Semenya returned to international competition at the Lappeenranta Games in Finland a little over a week after the IAAF made their announcement. In her first 800m race for 11 months she finished in first place with a time of 2:04:22. Four days later, at another event in Finland, she won in a time of 2:02:41. In Berlin in August she broke the two minute barrier, winning in a time of 1:59:90 with her coach, Michael Seme and South African Olympic Chief Gideon Sam indicating they believed even better performances were to come. So, if Semenya has (as Farquhar feels able to state with confidence) been treated for an intersex condition or, as the IOC would seem to want it, a disorder of sexual development, her continued dominance in the event makes sense only if her condition did not play a part in her athletic performance in the first place. Despite having been cleared to run, the BBC coverage of her victory makes clear that her fellow athletes remain unconvinced that the competition is now fair, reporting misgivings from Britain’s Jemma Simpson (who finished fourth in Berlin) and Canadian Diane Cummins (who finished eighth). Demonstrating what Spurgas (2009: 108) has called ‘inter-phobia’ (which she sees as being allied to the widespread acceptance of homophobia and trans- phobia, both of which are prevalent in sport (Boyle and Haynes, 2000; Cavanagh and Sykes 2006)) Cummins is quoted as saying “Even if she is a female, she’s on the very fringe of the normal athlete female biological composition from what I understand about hormone testing. From that perspective, most of us just feel that we are literally running against a man” (BBC Sport, 2010f, my emphasis). Giving credence to these athletes’ allegations that they were facing unfair competition, the same report informs readers that Semenya had been “banned by the International Association of Athletics Federations (IAAF) after unusually high levels of testosterone were detected in a sample”, at the very least a misrepresentation of a complex situation in which Athletics South Africa chose to withdraw Semenya from international competition pending a definitive ruling from the 12/05/2011 17 IAAF, and when no official confirmation has ever been given regarding the outcome of the tests undergone by the athlete. While much of the blame for this continuing unease over Semenya must lie with the athletics governing bodies that gave credence to the rumours about her, and took almost 11 months to reach a verdict on the case, the media contributed by uncritically adopting the frame with which the sporting community presented the issue. At the time of writing Semenya has been picked for the South African team for the 2010 Commonwealth Games to be held in New Delhi in October where she is expected to win the gold medal in the 800m. Should she continue her current level of performance in the event – and particularly if she approaches or exceeds her personal best times from 2009 - it will be fascinating to see how both her fellow competitors and the sports media handle her success. (In fact she pulled out of the competition with a back injury. Media reports frequently mentioned the previous controversy.) What Next for Sex and the Body? Feminism was once content to take its lead from Simone de Beauvoir who, as I noted earlier, argued that one was not born, but rather became, a woman. But over the past two decades the commitment to distinguish between sex and gender has been supplemented by various turns in feminst theory that have sought a greater recognition of the links between the two terms, seeing them as interdependent though not interchangeable. While this may seem to bring it more in line with the discourse of the sporting establishment, which seems never to have made a distinction between sex and gender (and femininity), an important - indeed crucial - difference is the way in which a more somatic approach within feminist theory has gone hand-in-hand with an acknowledgement, based on a careful examination of the scientific evidence, that the division of individuals into two – and only two- sexes fails to recognize the complexity of the human body. The more we find out about the sexed body the less we are able to establish hard and fast differences between men and women that do not rely on cultural 12/05/2011 18 assumptions to provide their conceptual purchase. Yet rather than take the complexity of the empirical realities of the body on board, and recognize the diversity of lived human experience, the IOC seems to be turning to medicine to ‘correct’ athletic bodies so that they conform to the prevailing model of sex. If we continue to live with an insistence on a clear cut model of binary sexual difference, which may provide the comfort of certainty for the majority, the inevitable consequence will be the perpetuation of injustice towards the minority whose experience is not accorded credibility. To return to Miranda Fricker’s concept of epistemic injustice, she claims that “hermeneutical inequality is hard to detect” because the background social conditions do not give us adequate terms in which to frame the debate differently, and that “the powerful have no interest in achieving a proper interpretation” (2007: 152). What clearer illustration of this might there be than the fact that, in the case of sex and the body, rather than change the model to fit the evidence, the IOC would appear to be giving serious consideration to amending the evidence to fit the model? Writing in an issue of Hypatia that includes a Symposium on intersexuality, Sharon L. Crasnow tackles directly the issue of the relationship between models and reality when science tackles sex. In doing so she notes “What we pay attention to is determined by our interests, our models capture those interests, and the models themselves are constructed out of those concerns, but the world is not.” (Crasnow, 2001: 147, my emphasis). Like other feminist philosophers of science Crasnow is not seeking to deny the existence of objective data on the sexed body – but like Haraway with her concept of the material-semiotic, and Fausto- Sterling with the biology/culture Möbius Strip - she is drawing attention to the need to recognize that the science of the body does not exist in an intellectual and cultural vacuum. If the IOC set up centres to treat athletes diagnosed as having a ‘disorder’ of sexual development, whether or not it confers any competitive advantage, then future athletes like Caster Semenya will be required to undergo body-changing treatments, and not just (as at present) tests. The result will be that politics will have trumped science, athletics will remain under a cloud of hermeneutical darkness, and epistemic injustice will prevail. References 12/05/2011 19 Althaus-Reid, Marcella (2004) From Feminist Theology to Indecent Theology, London: SCM Press. BBC News (2010a) ‘Tension over sex testing in sport’, 15 February 2010. Available at: http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/8511176.stm. Accessed 23 August 2010. BBC Sport (2009a) ‘Semenya told to take gender test’, 19 August 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8210471.stm. Accessed 20 August 2009. BBC Sport (2009b) ‘Semenya dismissive of gender row’, 21 August 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8212078.stm. Accessed 6 October 2009. BBC Sport (2009c) ‘New twist in Semenya gender saga’, 25 August 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8219937.stm. Accessed 6 October 2009. BBC Sport (2009d) ‘Semenya to keep World gold medal’, 10 September 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8245107.stm. Accessed 12 October 2009. BBC Sport (2009e) ‘SA threatens ‘war’ over Semenya’, 11 September 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8249948.stm. Accessed 12 October 2009. BBC Sport (2009f) Semenya ‘must not be humiliated’, 11 September 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8250469.stm. Accessed 6 October 2009. BBC Sport (2009g) ‘Semenya ‘let down’ in gender row’, 15 September 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8256522.stm. Accessed 6 October 2009. BBC Sport (2009h) ‘SA chief issues Semenya apology’, 19 September 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8261566.stm. Accessed 6 October 2009. BBC Sport (2009i) ‘SA chief suspended in Semenya row’, 5 November 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8344591.stm. Accessed 5 November 2009. BBC Sport (2009j) ‘Semenya tests not complete – IAAF’, 19 November 2009. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8360295.stm. Accessed 23 November 20009. BBC Sport (2010a) ‘Doubts raised over Semenya return’ 15 January, 2010. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8457819.stm. Accessed 21 January 2009. BBC Sport (2010b) ‘Caster Semenya sets sights on June return to action’ 6 April, 2010, Available at http://news.bbc.co.uk/sport1/hi/athletics/8595361.stm. Accessed 25 May 2010. 12/05/2011 20 BBC Sport (2010c) ‘Semenya set to learn test results’ 6 June 2010 09:45:22. Available at: http://news.bbc.co.uk/go/pr/fr/-/sport1/hi/athletics/8732430.stm. Accessed 6 June 2010. BBC Sport (2010d) ‘Semenya news conference cancelled’ 6 June 2010 10:50:08. Available at: http://news.bbc.co.uk/go/pr/fr/-/sport1/hi/athletics/8732430.stm. Accessed 6 June 2010. BBC Sport (2010e) ‘Athlete Semenya free to compete’ 6 July 2010. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8793668.stm. Accessed 7 July 2010. BBC Sport (2010f) ‘Semenya to ignore negative jibes’ 23 August 2010. Available at: http://news.bbc.co.uk/sport1/hi/athletics/8937467.stm. Accessed 26 August 2010. Beauvoir, Simone de (1983) The Second Sex, Harmondsworth: Penguin. Birrell, Susan, and Cole, Cheryl L. (1994) ‘Double Fault: Renee Richards and the Constructions and Naturalization of Difference’ in Pamela J. Creedon (ed.) Women, Media & Sport: Challenging Gender Values, Thousand Oaks: Sage, pp 207-237. Boyle, Raymond, and Haynes, Richard (2000) Powerplay: Sport, the Media and Popular Culture, Harlow: Longman. Butler, Judith (1990) Gender Trouble: Feminism and the Subversion of Identity, London: Routledge. Butler, Judith (1993) Bodies That Matter: On the Discursive Limits of ‘Sex’, London: Routledge. Cavanagh, Sheila L., and Sykes, Heather (2006) ‘Transsexual Bodies at the Olympics: The International Olympic Committee’s Policy on Transsexual Athletes at the 2004 Athens Summer Games’, Body & Society, Vol. 12(3): 75-102. Chase, Cheryl (2006) ‘Hermaphrodites with Attitude’ in Susan Stryker and Stephen Whittle (eds.) The Transgender Studies Reader, London: Routledge. Connor, Steve (2008) ‘Women of the Future are on Track to Run Faster Than Men’ Available at: http://www.womenssportsfoundation.org/Content/Articles/Sports-And- Fitness/W/Women-of-the-Future-Are-On-Track-to-Run-Faster-Than-Men.aspx. Accessed 12 October 2009. Crasnow, Sharon, L. (2001) ‘Models and Reality: When Science Tackles Sex’, Hypatia, Vol. 16(3): 138-148. Farquhar, Gordon (2010) ‘Semenya saga comes to just conclusion’ Available at: http://bbc.co.uk/blogs/gordonfarquar/2010/07/farquhar.html. Accessed 7 July 2010. 12/05/2011 21 Fausto-Sterling, Anne (1985) Myths of Gender, New York: Basic Books. Fausto-Sterling, Anne (1993) ‘The Five Sexes: Why Male and Female are not Enough’, The Sciences, (March/April): 20-24. [First published in the New York Times.] Fausto-Sterling, Anne (2000) Sexing the Body: Gender Politics and the Construction of Sexuality, New York: Basic Books. Fausto-Sterling, Anne (2005) ‘The Bare Bones of Sex: Part 1 – Sex and Gender’, Signs: Journal of Women in Culture and Society, Vol. 30(2): 1491-1527. Foucault, Michel (1992) The Use of Pleasure, Harmondsworth: Penguin. Fricker, Miranda (2007) Epistemic Injustice: Power & the Ethics of Knowing, Oxford: Oxford University Press. Gatens, Moira (1996) Imaginary Bodies: Ethics, Power and Corporeality, New York: Routledge. Grosz, Elizabeth (1994) Volatile Bodies: Towards a Corporeal Feminism, Bloomington: Indiana University Press. Haraway, Donna (2004) ‘Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’ in Sandra Harding (ed.) The Feminist Standpoint Reader, London: Routledge. Hird, Myra J. (2000) ‘Gender’s nature: Intersexuality, trassexualism and the ‘sex’/’gender’ binary’, Feminist Theory, Vol. 1(3): 347-364 Holmes, Morgan M. (2009) ‘Introduction’ in Morgan Holmes (ed.) Critical Intersex, Farnham: Ashgate, pp. 1-12. Johnson, Corey W. and Kivel, Beth (2007) ‘Gender, Sexuality and Queer Theory in Sport’ in Cara Carmichael Aitchison (ed.) Sport & Gender Identities: Masculinities, Femininities and Sexualities, London: Routledge, pp93-105. IAAF (2009) ‘Pamela Jelimo is the 2008 Golden Girl of Athletics’. Available at http://www.iaaf.org.news/kind=103/newsid=49201.html. Accessed 13 January 2010. Ljungqvist, Arne (2000) ‘Gender Verification’ in Barbara L. Drinkwater (ed.) Women in Sport, Oxford: Blackwell. McArdle, David (2008) ‘Swallows and Amazons, or the Sporting Exception to the Gender Recognition Act’, Social and Legal Studies, Vol. 17(1): 39-57. 12/05/2011 22 McRae, Donald (2009) ‘Being Caster Semenya’, Guardian Sport, 14 November 2009: 1-4. McRuer, Robert (2006) Crip Theory, New York: New York University Press. Merck, Mandy (2010) ‘The Question of Caster Semenya’. Available at: http://www.radicalphilosophy.com/default.asp?channel_id=2187&editorial_id=28972. Accessed 8 March 2010. Opie, Hayden (2001) ‘Medico-Legal Issues in Sport: The View From the Grandstand’, Sydney Law Review, Vol. 23: 374-404. Pepa, Ruel F. (n.d.) ‘Nurturing the Resistance: Some important views from contemporary philosophers’, available at http://www.philosophos.com/philosophy_article_85.html. Accessed 25 January 2010. Ritchie, Robert, Reynard, John, and Lewis, Tom (2008) ‘Intersex and the Olympic Games’, Journal of the Royal Society of Medicine, Vol. 101: 395-399. Sharpe, Andrew (2002) Transgender Jurisprudence: Dysphoric Bodies of Law, London: Cavendish. Skirstad, Berit (2001) ‘Gender Verification in Competitive Sport’ in Torbjörn Tännsjö and Claudio Tamburrini (eds.) Values in Sport: Elitism, Nationalism, Gender Equality and the Scientific Manufacture of Winners, London: E & F N Spon. Spurgas, Alyson K. (2009) ‘(Un)Queering Identity: The Biosocial Production of Intersex/DSD’ in Morgan Holmes (ed.) Critical Intersex, Farnham: Ashgate, pp. 97-122. Stevenson, Deborah (2004) ‘Women, Sport and Globalisation: Competing Discourses of Sexuality and Nation’, in David Rowe (ed.) Sport, Culture and the Media: Critical Readings, Maidenhead: Open University Press, pp. 276-294. Wackwitz, Laura A. (2003) ‘Verifying the Myth: Olympic Sex Testing and the Category “Woman”, Women’s Studies International Forum, Vol. 26(6): 553-560. 
work_ll5t2jewubdfvp4232qjp7dgyu	----	Genetic justice must track genetic complexity. | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1017/S0963180108080055 Corpus ID: 8488249Genetic justice must track genetic complexity. @article{Farrelly2008GeneticJM, title={Genetic justice must track genetic complexity.}, author={C. Farrelly}, journal={Cambridge quarterly of healthcare ethics : CQ : the international journal of healthcare ethics committees}, year={2008}, volume={17 1}, pages={ 45-53 } } C. Farrelly Published 2008 Sociology, Medicine Cambridge quarterly of healthcare ethics : CQ : the international journal of healthcare ethics committees Many different factors influence our health prospects. The food we consume, the lifestyle we live (e.g., sedentary or active), our economic prospects, our love prospects, our gender, our age, and our education all influence our expected lifetime acquisition of what John Rawls calls the "natural primary goods" (e.g., health, vigor, imagination, and intelligence). Our well-being is also influenced by the natural endowments we inherit from our parents. All people have two copies of most genes, one… Expand View on PubMed doi.org Save to Library Create Alert Cite Launch Research Feed Share This Paper 5 CitationsHighly Influential Citations 1 Background Citations 2 View All Topics from this paper Copy (object) 5 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency New life sciences innovation and distributive justice: rawlsian goods versus senian capabilities Theo Papaioannou Sociology Life Sciences, Society and Policy 2013 1 PDF View 1 excerpt, cites background Save Alert Research Feed Normative Theorizing about Genetics C. Farrelly Medicine Cambridge Quarterly of Healthcare Ethics 2013 View 1 excerpt Save Alert Research Feed Market Stimulus and Genomic Justice: Evaluating the Effects of Market Access to Human Germ-Line Enhancement G. Crozier, G. K. D. C. Hajzler Economics, Medicine Kennedy Institute of Ethics journal 2010 5 Save Alert Research Feed On the Very Idea of Genetic Justice M. Loi Sociology, Medicine Cambridge Quarterly of Healthcare Ethics 2011 3 Highly Influenced View 6 excerpts, cites background Save Alert Research Feed Biologically Modified Justice C. Farrelly Sociology 2016 6 Save Alert Research Feed References SHOWING 1-10 OF 23 REFERENCES SORT BYRelevance Most Influenced Papers Recency FROM CHANCE TO CHOICE: GENETICS AND JUSTICE S. L. Anderson Sociology 2001 298 Save Alert Research Feed The Genetic Difference Principle C. Farrelly Sociology, Medicine The American journal of bioethics : AJOB 2004 20 PDF Save Alert Research Feed Genetic Medicine: A Logic of Disease B. Childs Medicine 1999 77 Save Alert Research Feed Genetic therapy: on the brink of a new future G. Hellermann, S. Mohapatra Medicine Genetic vaccines and therapy 2003 21 Save Alert Research Feed Enhancements and Justice: Problems in Determining the Requirements of Justice in a Genetically Transformed Society R. Lindsay Sociology, Medicine Kennedy Institute of Ethics journal 2005 28 Save Alert Research Feed Bioethics down under—medical ethics engages with political philosophy S. Holm Medicine, Sociology Journal of Medical Ethics 2005 13 PDF Save Alert Research Feed The Cost of Rights: Why Liberty Depends on Taxes S. Holmes, C. Sunstein Political Science 2000 202 PDF Save Alert Research Feed Just Constraints A. Mason British Journal of Political Science 2004 30 Save Alert Research Feed Initial sequencing and analysis of the human genome International Human Genome Sequencing Consortium Nature 2001 7,123 PDF Save Alert Research Feed Sequence the Human Genome D. Mccormick Materials Science Bio/Technology 1986 5,398 PDF Save Alert Research Feed ... 1 2 3 ... Related Papers Abstract Topics 5 Citations 23 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_llnmyfwvwzd7nmfaxzqobyqlym	----	Lasse Nielsen & David V. Axelsen Capabilitarian sufficiency: capabilities and social justice Article (Accepted version) (Refereed) Original citation: Nielsen, Lasse and Axelsen, David V. (2016) Capabilitarian sufficiency: capabilities and social justice. Journal of Human Development and Capabilities. ISSN 1945-2829 DOI: 10.1080/19452829.2016.1145632 © 2016 Human Development and Capability Association This version available at: http://eprints.lse.ac.uk/65807/ Available in LSE Research Online: March 2016 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://www.tandfonline.com/loi/cjhd20 http://dx.doi.org/10.1080/19452829.2016.1145632 https://hd-ca.org/ http://eprints.lse.ac.uk/65807/ 1 Capabilitarian Sufficiency: Capabilities and Social Justice Abstract This paper suggests an account of sufficientarianism—i.e. that justice is fulfilled when everyone has enough—laid out within a general framework of the capability approach. In doing so, it seeks to show that sufficiency is especially plausible as an ideal of social justice when constructed around key capabilitarian insights such as freedom, pluralism, and attention to empirical interconnections between central capabilities. Correspondingly, we elaborate on how a framework for evaluating social justice would look when constructed in this way and give reasons for why capabilitarians should embrace sufficientarianism. We do this by elaborating on how capabilitarian values underpin sufficiency. On this basis, we identify three categories of central capabilities; those related to biological and physical needs, those to fundamental interests of a human agent, and those to fundamental interests of a social being. In each category, we argue, achieving sufficiency requires different distributional patterns depending on how the capabilities themselves work and interrelate. This argument adds a new dimension to the way capabilitarians think about social justice and changes how we should target instances of social justice from social-political viewpoint. Keywords: The Capability Approach; Sufficiency; Social Justice; Martha Nussbaum; Pluralism; Positional Goods. Introduction The capability approach, in most instantiations, is not a theory of social justice setting out an ideal societal distribution of benefits and burdens toward which we should strive. Rather, it is a broad normative space for the evaluation of people’s well-being and freedom with many possible 2 applications (Sen 1993; 2005; Robeyns 2005). And while this ecumenical foundation and the cross-cultural applicability by which it is accompanied is one of the main strengths of the approach, it leaves open many important questions as well. Not least, it does not tell us much about which capabilities we should seek to enhance, how much we should do so, and why this is important. On the other hand, while theories of social justice often provide relatively convincing and well-developed answers to these questions, they are often developed in a philosophical space somewhat isolated from actual processes of human development. This, many would argue, limits their potential for guiding concrete agents acting in the context of such processes. In this article, we attempt to bridge the gap between these two perspectives by proposing an ideal of social justice informed by the capability approach, which we shall term capabilitarian sufficiency. In a previous article, we have suggested that a sufficientarian ideal of social justice could be a good companion for the capability approach (Axelsen & Nielsen 2015), but here we wish to specify and elaborate on how and why this is the case. Where our previous article suggested the potential for approximation between the two conceptual cores, this one actively pursues a fusion. To clarify, accounts of sufficiency entail both a positive thesis; that bringing people above some threshold is especially important, and a negative thesis; that above this threshold, inequalities are irrelevant or alternatively, a shift thesis; that inequalities above the threshold are significantly less important (see Casal 2007 and Shields 2012, respectively). The positive thesis is fairly uncontentious – both within theories of social justice and in different forms of the capability approach. The negative thesis, on the other hand, would be rejected by many who find inequalities above the threshold very relevant to justice. The acceptance of the negative thesis and the involved potential inequalities at higher levels is, thus, distinctively sufficientarian. However, accepting the negative thesis is also, we shall claim, especially well-tuned to the 3 insights of the capability approach – especially, if, as is the case here, the sufficiency threshold is built on a foundation of capabilitarian insights. Some sufficientarian theorists such as Harry Frankfurt (1987) and Robert Huseby (2010) define the threshold of sufficiency level in terms of contentment (or reasonable contentment), thus suggesting a relatively high and subjective threshold. But although contentment gives us a plausible explanation to why we should accept the negative thesis—that is, being content seems in a relevant way to weaken ones claim for additional resources—it is less successful as a reason for accepting the positive thesis. In other words, it seems fair to challenge the claim that it is critically important from a justice point of view that no one must be discontent. As Paula Casal (2007) points out, this is a general issue when employing a high threshold, since this very often means compromising universal allegiance to the reasons underlying the positive thesis. Capabilitarians have long been sceptical of relying on purely subjective evaluations when determining people’s wellbeing and relying on capabilitarian reasoning can help sufficientarians escape this danger. Other sufficientarians suggest a fairly low threshold—e.g. basic needs or basic rights (Miller 2007; Shue 1996)—but while these accounts do well in justifying what is so critically important about reaching the threshold, they face problems with explaining why inequalities above the threshold are unimportant to justice. Thus, as Casal (2007) notes their answer to the negative thesis is less plausible, as, for example, not being concerned by inequality between the super-rich and people who have barely enough seems problematic. Although, capability theorists are less explicit about inequalities at this level, we will argue that the pluralist view about what is valuable in a human life can help ground the negative thesis – and do so in a way that makes both sufficientarianism and capability theory stronger. 4 Elsewhere, we have suggested and defended a sufficientarian ideal of social justice via the concept of freedom from duress, by which we mean “the freedom from significant pressure against succeeding in central areas of life” (Axelsen & Nielsen 2015). At the heart of this account is the three-step argument that: (a) justice is concerned only with people’s opportunities in central, as opposed to non-central, areas of life; (b) that a critical threshold of sufficiency exists in each particular central area; and (c) that what effectively determines sufficiency in a specific area depends on the distributional logic of the capabilities within that area. Thus, we conclude, sufficiency as freedom from duress implies, “that justice is limited in scope, pluralist in nature, and variable in pattern” (2015). This account, we claim, does a better job than alternative sufficiency views in terms of justification of both the positive and the negative thesis. The account of sufficiency as freedom from duress is loosely informed by general insights from the capability approach, but importantly, it is not committed to it. In fact, our account is compatible with a wide range of measures that adopt an objective view of value. In this paper, we unfold a pluralist sufficientarian account of social justice explicitly within the capability approach. We do this by elaborating upon the capabilitarian notions of universally important aspects of human life and the pluralism of the human good, and their implications for sufficiency. We, then, identify three broad categories of central human capabilities that seem to be common to capability theorists: 1) capabilities related to biological and physical human needs; 2) capabilities related to fundamental interests of a human agent; and 3) capabilities related to fundamental interests of a social being, and show how these relate to sufficiency. What sufficiency means with respect to these three categories differs greatly, as they are governed by different distributional logics. These logics are understood by unpacking the dynamics in play 5 within the respective categories and how different holdings affect one’s overall level of capabilities. Elaborating on ideas which are already present in capability theory and bolstering this by way of empirical insights and the concept of positional goods, we show why inequalities above the threshold can and should matter to capability theorists and sufficientarians alike - but because these create insufficiencies. First, however, we will outline the contours of sufficiency within the normative framework of the capability approach. Sufficiency and capabilities According to capabilitarians, other theories of justice tend to overlook important aspects of human existence and differences between human lives. For example, the utilitarian focus on maximizing utility is thought to be insufficiently sensible to the societal distribution and the separateness of the individuals whose lives are at stake (Nussbaum 2006, 71-72). This point is, of course, not particular to capabilitarians, but is also held by many liberals. At the same time, theories that focus solely on the amount of resources available to a person are believed to overlook the important differences in people’s abilities to convert resources into functionings (Sen 1992), while theories focusing on welfare overestimate the reliability of subjective preferences (Nussbaum 2000, 122-142). These latter points of criticism have mainly been directed against egalitarians, but of course they apply to resource or welfare sufficientarians, like the ones mentioned above, as well. These points of criticism spell out both how capability theory lends itself best to non-welfarist accounts of social justice and the problems we avoid by formulating sufficiency in capabilitarian terms. The tenet of the capability approach is that we should be concerned with securing individual people’s capabilities—opportunity to achieve valuable combinations of functionings, 6 or, in other words, what people are actually able to do and to be (Sen 2005; Nussbaum 2006, 70)—as opposed to, say, maximizing or equalizing preference satisfaction, welfare, or wealth. Capabilitarians hold that these latter approaches simplify what is important in a human life, and that a theory of justice must necessarily be concerned with several aspects of the human reality that cannot be collapsed into one dimension without losing vital information. In Martha Nussbaum’s work, for example, the basis for this criticism lies in the notion that there is some central core to human life or, one might say, a shared base for humanity defined by central human capabilities. These different capabilities are implicitly believed to entail a threshold below which truly human functioning is not available. Getting people above this point is therefore of special importance (Nussbaum 2006, 293). In a similar vein, Amartya Sen (1999, 87) has pointed to some basic capabilities for which it is crucially important to secure functionings above a certain level. Thus, capabilitarians, at least implicitly, subscribe to an unelaborated form of the positive thesis. That is, although they are unclear about its nature and content, they agree that some level of capabilities exists, below which no one should find themselves. We will try to broaden and clarify a capabilitarian basis for accepting this claim. As mentioned, the capability approach does not usually involve taking a clear stand on social justice. This is most plainly the case with respect to the negative thesis – that is, what justice requires above the threshold. One reason for not tackling this question explicitly seems to be that their main interest lies within the current world distribution, in which far too many have far too little with regards to their central capabilities (Sen and Nussbaum, especially, are mainly concerned with the world’s developing countries). Another is that it is simply no easy task to come with a well-reflected answer. As Nussbaum points out, “it is a difficult question how far adequacy of capability requires equality of capability. Such a question can be answered only by 7 detailed thought about each capability, by asking what respect for equal human dignity requires” (Nussbaum 2011, 40-41). We will pursue a more informed basis for answering this question by elaborating on reasons for why capabilitarians should accept the negative thesis explicitly, and why they can do so without giving up their special attention to injustices in the actual world. Our account will take its point of departure in the idea that different types of capabilities are governed by different distributional logics, and thus, that what it means to have enough varies accordingly. In doing so, we will show how embracing a pluralist sufficientarian ideal of social justice can help overcome some of the shortcomings identified in the capability approach. Central capability categories As mentioned, capability theorists hold that other theories of distributive justice are not sufficiently sensitive towards important differences between human lives (i.e. their ability to convert resources into functionings), and further, that they do not distinguish adequately between different aspects of human life. This is significant, according to capabilitarians, since the most important aspects of a human life are “not commensurable in terms of any single quantative standard” (Nussbaum 2006, 166) and because some capabilities and the functionings they enable are more important than others, and should, thus, receive special attention. Capability theorists differ on, which exact capabilities are the important ones, and on how a list of such might be made. Nussbaum, most notably, has proposed an index of central human capabilities, which she claims are common to all human beings across cultures. The overall idea of Nussbaum’s work is that there is some central core to the human life defined by central human capabilities. Her list includes life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; and control over one’s environment (2000, 78- 8 80; 2006, 6-78; 2011, 33-34). Sen, on the other hand, maintains that the capability approach ought not commit to one singular theoretical list but should be deliberately underspecified so as to ensure people’s agency, not only in regards to their effective access to the relevant functionings, but also in terms of having democratic influence on the process of deciding which capabilities are relevant. In other words, influence through choice over the process of listing relevant capabilities is in itself a freedom that should be reflected in the capabilities that people ought to have (Sen 1993; 1997; 2005; 2009, 242). Consequently, as Sen forcefully stresses, “To insist on a ‘fixed forever’ list of capabilities would deny the possibility of progress in social understanding, and also go against the productive role of public discussion, social agitation, and open debates” (Sen 2005, 160). Several other theorists have positioned themselves in relation to this distinction. In order to maintain the political impact and applicability stemming from formulations of objective lists, while at the same time safeguarding the individual agency-element that is so fundamental to the capability approach in Sen’s original form, Ingrid Robeyns has suggested to move beyond a single universal list of capabilities, and focus on coming up with relevant criteria for creating lists of capabilities for each particular use of the capability approach to a specific field (Robeyns 2011). In a similar vein, Sabina Alkire argues against Nussbaum’s account, that there can be no singular list that applies for all purposes and, thus, the selection of relevant capabilities must be done repeatedly and be sensitive to its particular use in a specific field and place (Alkire 2005; Alkire 2002, 51-53). We attempt to strike a balance between the two by not committing to a specific list of central capabilities, but instead delineating three broad categories which are distinguished not by their particular content but by their distributional logics. In other words, what sets the categories 9 apart is what it takes to achieve sufficiency with respect to this type of capability. In doing so, we seek to avoid one line of criticism made against some capability accounts suggesting that they arbitrarily exclude certain valuable capabilities (Vallentyne 2005, 361-363) without succumbing to subjective welfarism. The categories are not fixed sets or bundles of capabilities, but should be understood as a typology of capabilities with the central purpose of classifying justice-relevant capabilities in terms of how they should be distributed. Thus, the central claim here is that if we believe that there is a range of capabilities, which are all important in their own right, and that these are not commensurable, then the governing distributive principles should be informed by the particular distributional logics of the different types of capabilities. This is necessary to properly understand which level of the specific capability is required by justice – which level is sufficient. We shall proceed with the following typological categories of capabilities, which we believe any objective definition of social justice must include: 1. Capabilities related to biological and physical human needs. These are the capabilities of enjoying commodities that every human being needs in order to ensure biological and physical wellbeing. Obvious examples include the capabilities for nourishment, water, health, clean air, shelter, reproduction, sexual fulfilment, and physical security. These capabilities ensure the survival and bodily needs of members of the human species. 2. Capabilities related to fundamental interests of a human agent. These are capabilities related to individual autonomy. In other words, they are those that are needed to form and reform valuable ends. They include the capabilities of rational reflection, imagination, critical thinking, normative evaluation, functional and technical skills, understanding the implications of choices and actions for one’s life, working, having the 10 emotional capacities to feel an appropriate range of human emotions, and feeling emotional attachment with other human beings. 3. Capabilities related to fundamental interests of a social being. These are capabilities needed for pursuing one’s valuable ends within a community and, more generally, for relating to fellow human beings in the appropriate way. These include the capabilities for political freedoms such as the freedom to vote, the freedom of assembly and association, and the freedom from discrimination and oppression, but also access to some form of market in which one can trade on fair terms with others, the capability of enjoying a sufficiently high societal status, not to be dominated by others, etc. The characterization given here is not to be interpreted as the final end goal of any human life. Rather, they are three categories of capabilities that any human life must contain and thus that any plausible account of social justice needs to incorporate in a way that is sensible to the belief that the central capabilities are theoretically incommensurable — although very often in practice intertwined. This means that one cannot make simple trade-offs, and make up for a lack in one central capability by giving someone a larger amount of another (Nussbaum 2006, 167). Giving someone better capabilities for health and nourishment, for example, cannot justify curtailing their political rights, discriminating against them, or stunting their rational development. Thus, the conclusion proceeds, if justice is concerned with capabilities, it must be concerned with sufficiency in the sense of pursuing adequacy of capability; and if concerned with sufficiency in this sense, we need to understand what it takes to reach an adequate level of capability in each central area of human life. Thus, it follows that any theory, social assessment or political arrangement that adhere to justice would involve a suitable index of capabilities that revolves around a sufficiency threshold that is pluralist in nature and that this indexing procedure must 11 take into account the distributional logics of the different types of central capabilities. In order to reach a more comprehensive understanding of the content of the kind of threshold by which capabilitarians are motivated, the following sections will unfold and defend the pluralist nature of the threshold and elaborate on distributional logics of the different types of capabilities. Thresholds in plural As mentioned above, any sufficientarian theory of distributive justice must accept, and justify why we should accept, that bringing people above some critical threshold is especially important (the positive thesis). We are yet to establish, however, what is special about this threshold or, you might say, why the threshold should be given special importance. As reflected in the disagreement on which exact capabilities are most important, capabilitarians also describe the value that one obtains when getting above the threshold differently. Nussbaum has given the most explicit account of what is at stake. Leaning on Aristotle’s theory of the human good, she describes her list of central human capabilities as enabling people to live a life in human dignity (Nussbaum 2000, 70-77; 2006, 160-162; 2011, 40-41). This entails being able to function in a truly human way, as opposed to, say, an animal way. Thus, mere survival or the fulfillment of basic needs is not enough. For example, while eating just to survive might suffice for an animal, this is not enjoying food in a human way, nor, more clearly, is it a way to eat that is compatible with a life in human dignity. i For Nussbaum, then, making people sufficiently well-off means giving them adequate capabilities for a life in human dignity. Inversely, not having enough means not having these dignity-facilitating capabilities. Regardless of specific variations in foci within the capabilitarian framework, any capability-based sufficiency account implies that whether or not one is sufficiently well-off cannot be determined solely by reference to one’s own preferences or level of resources; and that 12 being sufficiently well-off does not necessarily mean being as well-off as everyone else in these areas. Taken together, we claim, these insights and intuitions stemming from within the broad framework of the capabilities approach offer a plausible foundation on which to conceptualize the content of the positive thesis. This entails bringing people above a certain capability threshold. But, whereas sufficientarians usually hold that it is especially important to bring people above a certain threshold from the point of view of justice, we claim that several such thresholds exist. Traditionally, sufficientarianism has been unfolded within the discourse of telic distributive theory and, thus, defined in relation to views of philosophers such as Larry Temkin (2003) and Derek Parfit (1997). But whereas these views all hold a one-dimensional monist view of value (such as welfarism), and, consequently, so does the sufficientarianism that defines itself in contrast with these views (such as Frankfurt 1987, Crisp 2003, and Huseby 2010), the capability approach is fundamentally pluralist. It implies that the value of the human life is inevitably multidimensional—that is, it is concerned with various types of valuable functionings and capabilities (Sen 1992, 49; Nussbaum 2000, 81) and, moreover, it acknowledges that what social justice is, in general, concerned with is, “our ability to achieve various combinations of functionings that we can compare and judge against each other in terms of what we have reasons to value” (Sen 2009, 233). Moreover, because of the capabilitarian belief in incommensurability of the central capabilities, neither will it suffice to focus on some aggregate measure of capability. Instead, we must ensure that she has an adequate level of capabilities in all the relevant spheres. While the positive thesis in Casal’s original version entails that bringing people above some critical threshold (of well-being) is especially important from the point of view of justice, we argue, that such a critical threshold exists for all central capabilities. This does not require that any account of justice must, by itself, be able to identify which specific capabilities 13 are relevant (as discussed above), but merely that, whatever these might be, the relevant threshold must be identified for every relevant capability. Taken together, we claim that the universal concern of justice in an abstract sense is to ensure that everyone has sufficient capabilities in each relevant area of human life, and that differences between those that have achieved this are irrelevant (from the point of view of justice). Again, however, it is important to note that what is required to reach the threshold and, thus, to have sufficient capabilities—that is to say, where the threshold lies—may differ among the varying capability categories. Below, we will elaborate on this difference by linking capabilitarian sufficiency with empirical insights about inequality and with the notion of positional goods in order to illuminate and outline the distributional logics of the different categories of capabilities, and make it clearer why justice should not be concerned with inequalities above the threshold—that is, why we should accept the negative thesis. Pluralism and positional goods As noted, the central capabilities must be taken as situated within distinct distributional categories, critically important in their own right, and hence a distributive scheme informed by capabilitarian sufficiency must incorporate pluralism as a fundamental component of distributive justice. This pluralism entails that the different capabilities cannot be measured on a single dimension and are also incommensurable. This may, at first glance, seem like a weakness since policy makers might be unsure about how to prioritize when unable to compare the different capabilities on a single dimension. Capability theorists, however, emphasize how this more honestly than monist theories captures the complexity of human life, and that forcing fundamentally distinct capabilities unto a single dimension often simplifies, and thereby obscures, what is actually not simple. Moreover, the entailed pluralism implies that each 14 capability should be understood appropriately based on its distributional logic. In other words, the different central capabilities constitute fundamentally different dimensions of the human good, and this distinctness is reflected in how they should be distributed. Although, this point has not been adequately elaborated within capability theory, the argumentative core is recognized within the framework. Nussbaum, for example, states that: “It appears that all the political, religious, and civil liberties can be adequately secured only if they are equally secured. To give some groups of people unequal voting rights, or unequal religious liberty, is to set them up in a position of subordination and indignity vis-à-vis others. It is to fail to recognize their equal human dignity. On the other side, there are other capabilities, closely connected with the idea of property or instrumental goods, where what seems appropriate is enough” (2006, 292-293). So, as Nussbaum indicates, sufficiency or having enough entails different distributions for different goods or capabilities. Thus, having an adequate amount of a certain capability sometimes means being above an absolute threshold that has no or little relation to what other people have, while it means having as much as or almost as much as others regarding the distribution of other capabilities. Anderson affirms the same thought; “For some functionings, equal citizenship requires equal levels. […] But for other functionings, standing as an equal does not require equal levels of functioning” (1999, 318-319). ii In other words, properly understanding the individual capabilities and how they empirically operate allows us to see how inequalities, when problematic, are actually best understood as insufficiencies. Thus, the importance of being sensitive to the particular type of capability and its distributive logic is already inherent in capability-based theories of social justice. But it is yet to be more systematically addressed and discussed how this general insight affects capabilitarian principles of social justice. In this section, we will elaborate on this idea by coupling it with the 15 notion of positional goods and empirical literature on inequality. We think that this pairing can help explain the reasoning behind Nussbaum’s and Anderson’s intuitions—and clarify our reasons for accepting the negative thesis, by showing why inequalities are sometimes important, since they can push people below the absolute threshold of sufficiency, and when this is (and is not) the case. Importantly, using the capability framework to clarify this connection comes with a set of built-in advantages. Thus, in a crucial way, constructing an account of sufficiency from within the framework of the capability approach means that one has already engaged with significant empirical insights on how different obstacles that people face may affect their opportunities to function in central areas of human life. This is because the capability approach, unlike other, less interdisciplinary frameworks for evaluating social justice, is to a large extent developed in connection with and evolves in constant interaction with empirical observations and measurements of the way in which capabilities interrelate and people’s opportunities are shaped. Which specific empirical data are necessary for a capabilitarian evaluation are, as mentioned, dependent on the nature of the task at hand. When using the framework for development studies, for example, knowledge about how capabilities are shaped and affected by cultural norms, climate, political circumstances, and geography will be important. When using the framework for evaluating social justice, on the other hand, it will be especially important to know how the levels of central capabilities – those that are important from a justice point-of-view – are determined. Especially, it will be important to know how the categories interrelate. And doing so, from within a capabilitarian framework, will entail looking at empirically informed literature that seeks to understand this link. 16 With this perspective in mind, one might look to the literature on how health is affected by people’s social standing. Michael Marmot, for example, shows on the grounds of extensive studies that people’s health; their changes of succumbing to heart diseases, cancer, strokes, and several other health related issues, are to a significant degree influenced by their opportunities for social participation and autonomy compared to their co-citizens. In other words, inequalities in societal status and autonomy affect individuals’ absolute levels of health (Marmot 2004). Or in our terms, unequal levels of capabilities related to fundamental interests of a social being brings about insufficiencies in capabilities related to biological and physical human needs. In a similar spirit, Richard Wilkinson and Kate Pickett argue that economic inequalities – and especially, through their effect on individual perceptions of their place in the social hierarchy (“how inequality gets under the skin”) – affect a broad range of societal issues such as life expectancy, violence, and mental health negatively (Wilkinson and Pickett 2010). Again, then, unequal levels of capabilities related to fundamental interests of a social being lead to people experiencing insufficiencies in other capability categories. If we care about people having enough of certain capabilities, then, there are still good reasons to worry about inequalities - but because inequalities in certain capabilities can lead to insufficiencies in others. And in other cases, because distributions are akin to zero-sum games, in which one person getting more of a certain capability necessarily means that the value of someone else’s holding decreases. In both cases, one can say that the capability has positional aspects (although, we will distinguish between the two manners in which they are positional below - as quasi-positional and positional, respectively). Positional goods are ones for which the absolute value of the good is affected by how much one has relative to others (Brighouse & Swift 2006, 472). Consequently, large inequalities 17 in the distribution of a good which is entirely positional will result in the worst-off group being below the threshold of sufficiency with respect to its value, regardless of how much they have in absolute terms. In almost all cases, individual capabilities have some positional aspects meaning that an unequal distribution will somehow affect people’s absolute level of one or more other capabilities. The presence of positional aspects, therefore, matters greatly for how specific capability thresholds should be understood. To see how this works, we now turn to the three categories of central capabilities. Generally, capabilities related to fundamental interests of a social being have strong positional aspects, meaning that one’s relative place in the distribution has a large impact on one’s absolute capabilities to succeed. This, as mentioned in the quote by Nussbaum above, is the case for voting, but it also seems to be the case for other freedoms, whose value is indirectly determined by others. Partly, this is due to the diminished capability in absolute terms of actually enjoying the freedom, but also it is because of the inherent symbolic value. Thus, for example, giving one group better capabilities for practicing their religion freely or for non-discrimination inevitably carries a message of disrespect and inferiority of status towards those left behind. It leaves them with insufficient capabilities of the relevant kind. In the same vein, it seems plausible that societal status—also in itself—be understood as a capability with strong positional aspects. This seems to be Anderson’s point when she claims that letting one group enjoy a higher level of capabilities for societal status than others necessarily leaves the lower placed individuals to “bow and scrape before others or represent themselves as inferior to others as a condition of having their claim heard” (1999, 313). In other words, the problem is that a lower status conveys a message of lesser worth in absolute terms. And this message is disrespectful, since treating one group as having less worth is failing to respond to their humanity with impartiality and failing to 18 respond properly to the equal importance of the success of each human life (Frankfurt 1997). Finally, the feeling that accompanies it is, ceteris paribus, a serious threat to one’s self-respect. Such circumstances would hinder any normal person severely in her pursuit of a flourishing life, and, thus, a relatively low status brings her below the absolute threshold. It is worth noting that this formulation avoids one line of criticism levelled against Nussbaum’s list of central capabilities; namely that it cannot explain why we should aim for an equal set of basic liberties (Richardson 2006, 450-451). Highlighting the positional aspect inherent in this type of capability, tells us why. As mentioned, most goods have some positional aspect, but capabilities related to the fundamental interests of a social being are special in this sense due to their intrinsically positional and relational qualities—they are essentially connected to people’s relations to others and their capabilities to participate in and influence collective projects. We shall therefore take the capabilities related to the fundamental interests of a social being to be positional capabilities. In these cases, what may seem like a problematic inequality above the threshold—and hence seemingly in accordance with the negative thesis—should actually be viewed as an instance of insufficiency due to the positional mechanisms involved, and thus would be condemned by the positive thesis Accordingly, for everyone to have a sufficient level of capabilities within this category of capability, the distribution must be more or less equal. Recall, however, that we are interested here only in central capabilities (regardless, as discussed, of how centrality is to be determined) and thus we should not worry about securing equality in non-central capabilities even when they have strong positional aspects. With respect to the other categories of capabilities, however, it seems more reasonable that distributional procedures ought to be designed so that everyone acquires a decent absolute 19 level of the capability in question, and that relative positions do not matter. This is generally true for capabilities that are not intrinsically positional. Neither of the two former categories of capabilities are intrinsically positional in the same sense as capabilities related to fundamental interests of a social being. Capabilities in the first category—that is, capabilities related to biological and physical human needs—such as health, housing, or nutrition are like this. It is not in itself a concern of justice that someone is more capable than others in these areas as long as everyone fares well enough. Certainly, everyone needs some level of these capabilities. But it seems wrong to say that people need equal levels of such capabilities to be able to lead dignified or reasonably successful lives. For example, one is not relevantly obstructed in a way that is problematic from the point of view of justice simply because one person has less perfectly enhanced health than others. Everyone having an equal chance of a successful life surely entails that people must have the capabilities for obtaining a decent and sufficient level of health, but it seems far too demanding to claim that everyone needs equal capabilities in order for justice to be fulfilled. That is, although deficiencies in health are critical, relative differences in individual health-functioning need not be. We shall therefore call the capabilities in this category, non- positional capabilities. Inequalities in health, for example, are often thought to be unjust and this may, one might think, serve as a counterexample to our account. However, our account of capabilitarian sufficiency can accommodate this in three ways. First, inequalities in health may affect people’s autonomy, social status, or self-respect and, thus, give rise to insufficiencies in other positional capabilities (if, for example, people of comparatively good health are met with a higher social status). Second, even if inequalities in health do not necessarily lead to insufficiencies in positional capabilities, they will often coincide with and be general symptoms of such insufficiencies since social disadvantages tend to cluster (Wolff and de-Shalit 2007, 122- 20 123; Marmot 2004, 14-15). This grounds the importance of health functioning measures such as life-expectancy in the Human Development Index and how it may play a significant role as a valid proxy for identifying the worse-off. Perceived in this way, health inequalities are worrisome—although not necessarily incidences of insufficiencies in themselves—because they highlight some societal groups that are clearly insufficiently well-off. This is aptly illustrated by Marmot’s famous account a subway ride from central Washington D.C. to Montgomery County, Maryland, on which life-expectancy rises a year and a half for every mile (Marmot 2004, 2). This leads to a third and final reason to care about health inequality. In some cases, what are seemingly examples of only inequalities in health are actually insufficiencies. Often critics of sufficientarianism underestimate the demandingness of the relevant threshold of biological and physical needs. On our own account, as we put it elsewhere, “if some faces an average life span of 55 years (as is the case, for example, in Malawi), they are clearly insufficiently well-off and under duress—regardless of the quality of their relations to other people” (Axelsen & Nielsen 2015, 421). So, regarding health capabilities and other capabilities related to biological and physical human needs seen in isolation only a sufficient—and not equal—level is required by justice. Equality, on the contrary, is merely instrumentally valuable due to the relational intertwinement between these capabilities and capabilities with strong positional aspects. In policy-making, then, these aspects must be kept apart if justice is to be attained. The second category of capabilities—related to fundamental interests of a human agent—is special. Like the biological and physical capabilities, the capabilities in this category such as affiliation, educational competence, critical reflection and normative evaluation are not intrinsically positional. That is, in contrast to capabilities related to fundamental interest of a 21 social being it is not true for these capabilities that whenever one person gets more capability, others are made worse off in an absolute sense. Consequently, sufficiency of capabilities related to fundamental interests of a human agent does not per se require an equal distribution for justice to be fulfilled. It is perfectly legitimate, for example, to hold that a society is sufficiently just when all have some reasonable level of education, a decent ground for affiliation, critical reflection and evaluation and so forth. These capabilities revolve around the importance of individual human autonomy—the ability to think critically, to evaluate normatively, and to set and pursue valuable goals for oneself—and as defenders of the value of autonomy have rightfully argued, sufficiency is the most plausible distributive ideal for such a value (Raz 1986; Dworkin 1988; Blake 2001, Nielsen 2015). On the other hand, the capabilities related to the fundamental interests of a human agent differ significantly from capabilities related to biological and physical needs in terms of the type of possible obstacles that may hinder the conversion of capability into achievement. These obstacles are recognized in the capability approach literature as conversion factors (Robeyns 2005). The achievement of functionings related to biological and physical need capabilities are influenced by personal conversion factors that are, in a way, internal to the capability. This includes factors such as metabolism, physical condition, security etc. where having the capability (say for health functioning) basically includes these factors. On the other hand, the effective opportunity for converting human agent capabilities (such as critical reflection and affiliation) into the related achieved functionings is often potentially obstructed by external factors. For example, a person’s opportunity for getting a meaningful job that is appropriate to her level and type of education is not only dependent on her personal capacities and acquired skills but also on competition from other human agents and social norms. Similarly, a person’s opportunity for 22 affiliation is deeply dependent on the social milieu and cultural environment and not only her own personal capacities. In sum, although capabilities related to the fundamental interests of a human agent are not intrinsically positional, the obstacles which may delimit people’s opportunity to succeed in these areas is very often externally defined and rooted in the social context. In both examples, then, access to some of the important functionings to which these capabilities are key is determined by the capability levels of others, and are, thus, partly positional. In other words, their value is often (at least partly) determined by how they are linked to other capabilities. We shall therefore call these quasi-positional capabilities. Based on this analysis of how to understand the distributional logics of the different types of capabilities, the question of how to obtain sufficientarian justice within this pluralist capabilitarian framework needs to be addressed. We suggest that justice as capabilitarian sufficiency entails the following requirements: (i) Indexing process: Any theory, social assessment or political arrangement that adhere to social justice should concentrate (only) on capabilities that are centrally important for people’s lives as opposed to maximizing or equalizing preference satisfaction, welfare, or wealth. Although subjective preferences are in themselves not relevant for the selection of capabilities, any legitimate indexing should safeguard people’s influence over the selection process, due to the intrinsic importance of the capability of personal choice. (ii) Capability typology: Any index of capabilities relevant for social justice would include three distinct categories of central capabilities: (1) Capabilities related to biological and physical human needs; (2) Capabilities related to fundamental interests of a human agent; and (3) Capabilities related to fundamental interests of a 23 social being. For justice to be fulfilled, a political arrangement must be sensitive to the different distributional logics of the distinct types of central capabilities. (iii) Non-positional logic: The first category of capabilities are non-positional—their absolute value for a particular person is independent of what other people have—and thus justice requires (only) that everyone is secured a decent level of all such capabilities (health, housing, security etc.). Importantly, however, their interconnection with capabilities with positional aspects may, nonetheless, require avoiding great inequalities in their distribution. (iv) Positional logic: The third category is positional—that is, the absolute value of these capabilities depends on other people’s capabilities—and thus justice requires that everyone enjoys a more or less equal share of these capabilities (political influence, societal status etc.). (v) Quasi-positional logic: The second category is quasi-positional—that is, these capabilities are not intrinsically positional, but important related functionings often involve obstacles from external social conversion factors with positional logics. In regards to these capabilities, justice requires that everyone is secured a sufficient level of all such capabilities (critical reflection, education, affiliation etc.). And, moreover, that no person is obstructed from converting these capabilities to their relevant achievements due to pressure from external factors. In the preceding sections, we have reformulated sufficientarian social justice enlightened by an overall typology of central capabilities. In this section, we have argued that bringing people above the threshold within a capability category may imply either an equal distribution or 24 bringing everyone above an absolute threshold and ignoring inequalities beyond this threshold, depending on the type of capability. More specifically, it depends on the empirical interconnections in play and whether the distribution of the capability is governed by positional logics. If this is the case, a person’s relative capability level determines their absolute level, and, thus, dictates whether they are sufficiently well-off. In other words, we affirm the negative thesis; that once people have sufficient capabilities in all these areas, inequalities are irrelevant to social justice. This pluralist view, we claim, seems in tune with how the requirements for living a flourishing life are normally judged, and joining it with the notion of positional goods gives intuitively appealing reasons for accepting the negative thesis for capabilitarians who hold that the human good is multifaceted. Conclusion Although the capability approach encompasses several relatively comprehensive and innovative accounts of social justice, most are still either undecided or underdeveloped when it comes to the issue of distributive justice. In this paper, we have outlined the sufficiency principle within a capabilitarian framework of social justice revolving around a categorization of central human capabilities that we believe most capabilitarians would accept. We have shown how the sufficiency principle should be interpreted when informed by the inherent pluralism entailed in the capability approach and argued that this pluralism serves as an argument for sufficiency; not against it. Furthermore, we have argued that what effectively determines the threshold of sufficiency varies according to the distributional logics within each category of capability, depending on the presence or absence of positional aspects for that particular capability. In other words, whereas social justice in regards to non-positional and quasi-positional capabilities 25 requires securing an adequate level for everyone, and protecting people from external pressure on their opportunity to succeed, social justice in regard to positional capabilities requires an equal distribution, but for sufficientarian (not egalitarian) reasons. This reasoning grounds the acceptance of the negative thesis of sufficientarianism. We conclude that this account of capabilitarian sufficiency shows much promise towards closing one of the central gaps still remaining in the development of the capability approach within the field of social justice. References Alkire, S. 2002. Valuing Freedoms: Sen's Capability Approach and Poverty Reduction. Oxford: Oxford University Press. Alkire, S. 2005. ”Why the Capability Approach?” Journal of Human Development 6 (1): 115- 135. Anderson, E. 1999. “What is the point of equality?” Ethics 109: 287-337. Axelsen, D. and L. Nielsen 2015. “Sufficiency as Freedom from Duress.” The Journal of Political Philosophy 13 (4):406-426. Banerjee, A. V., and E. Duflo. 2011. Poor Economics: A Radical Rethinking of the Way to Fight Global Poverty. New York: Public Affairs. Blake, M. 2001. “Distributive Justice, State Coercion, and Autonomy”, Philosophy & Public Affairs 30 (3): 257-296. Brighouse, H., and A. Swift. 2006. “Equality, Priority, and Positional Goods.” Ethics 116 (3): 471-497. Casal, P. 2007. “Why Sufficiency Is Not Enough.” Ethics 117 (2): 296-326. 26 Crisp, R. 2003. “Equality, Priority, and Compassion.” Ethics 113: 745-763. Dworkin, G. 1988. The Theory and Practice pf Autonomy. Cambridge: Cambridge University Press. Frankfurt, H. 1987. ”Equality as a Moral Ideal.” Ethics 98: 21-43. Frankfurt, H. 1997. “Equality & Respect.” Social Research 64 (1): 3-15. Huseby, R. 2010. “Sufficiency: Restated and Defended.” The Journal of Political Philosophy 18(2): 178-197. Marmot, M. 2004. Status Syndrome. London: Bloomsbury. Miller, D. 2007. National Responsibility and Global Justice. Oxford: Oxford University Press. Nielsen, L. 2015. “Sufficiency Grounded as Sufficiently Free: A Reply to Shlomi Segall”, Journal of Applied Philosophy, early online view, DOI: 10.1111/japp.12159. Nussbaum, M. C. 2000. Women and Human Development. New York: Cambridge University Press. Nussbaum, M. C. 2006. Frontiers of Justice. Cambridge: The Belknap Press of Harvard University Press. Nussbaum, M. C. 2011. Creating Capabilities – The Human Development Approach. Cambridge: The Belknap Press of Harvard University Press. Parfit, D. 1997. “Equality and Priority.” Ratio 10 (3): 202-221. Raz, J. 1986. The Morality of Freedom. Oxford: Oxford University Press. Richardson, H. S. 2006. “Rawlsian Social-contract Theory and the Severely Disabled,” The Journal of Ethics 10: 419–462. 27 Robeyns, I. 2005. “The Capability Approach: A Theoretical Survey.” Journal of Human Development 6 (1): 93-117. Robeyns, I. 2011. “Sen’s Capability Approach and Gender Inequality: Selecting Relevant Capabilities.” Feminist Economics 9 (2-3): 61-92. Sen, A. 1992. Inequality Reexamined. Oxford: Oxford University Press. Sen, A. 1993. “Capability and Well-being.” In Nussbaum M. C., and Sen A. (eds.), The Quality of Life. Oxford: Oxford University Press, pp. 30-53. Sen, A. 1997. “Maximization and the Act of Choice.” Econometrica 65 (4): 745-779. Sen, A. 1999. Development as Freedom. Oxford: Oxford University Press. Sen, A. 2005. “Human Rights and Capabilities.” Journal of Human Development 6 (2): 151-166. Sen, A. 2009. The Idea of Justice. Cambridge: Belknap Press of Harvard University Press. Shields, L. 2012. “The Prospects for Sufficientarianism.” Utilitas 24 (1): 101-117. Shue, H. 1996. Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy – Second Edition. Princeton: Princeton University Press. Temkin, L. 2003. “Equality, Priority, or what?” Economics and Philosophy 19: 61-87. Vallentyne, P. 2005. “Debate: Capabilities versus Opportunities for Well-being.” Journal of Political Philosophy 13 (3): 359-371. Wilkinson, R. and K. Pickett. 2010. The Spirit Level: Why Equality is Better for Everyone. London: Penguin Books. 28 i And indeed, poor people often choose taste and variation over calories even when malnourished, and in desperate need of calories. See Banerjee, and Duflo (2011, ch. 2). ii Although, Anderson’s preferred ideal is egalitarian in the sense that it claims we should aim for a society of equals, this is entirely compatible with saying that everyone should have enough distributively and be treated with a high level of respect (although not necessarily be treated in the same way). Axelsen_Capabilitarian sufficiency_2016_cover Axelsen_Capabilitarian sufficiency_2016_author 
work_ln56cwsp7ffppl4wxeq7osqfuu	----	ON THE JUSTICE OF DECISION RULES∗ JOSE APESTEGUIA†, MIGUEL A. BALLESTER‡, AND ROSA FERRER§ Abstract. Which decision rules are the most efficient? Which are the best in terms of maximin, or maximax? We study these questions for the case of a group of individuals faced with a choice from a set of alternatives. First, we show that the set of optimal decision rules is well-defined, particularly simple, and well-known: the class of scoring rules. Second, we provide the optimal decision rules for the three different ideals of justice under consideration: utilitarianism (efficiency), maximin, and maximax. We show that plurality, arguably the most widely used voting sys- tem, is optimal in terms of maximax, while the best way to achieve maximin is by means of negative voting, and the optimal utilitarian decision rule depends on the culture of the society. We then provide the mapping between cultures and optimal decision rules. Keywords: Decision rules, Scoring Rules, Voting, Utilitarianism, Maximin, Maxi- max. JEL classification numbers: D00, D63, D71, D72. 1. Introduction Should I implement a plurality voting rule if I aim to maximize efficiency? If I am persuaded by the maximin ideal of justice, should I implement the Borda count? What should I use if it is maximax that I wish to optimize? These are the type of questions addressed in this paper. Our aim is to identify the best decision rules in terms of these three ideals of justice. In our setting, individuals’ preferences are cardinal and interpersonally comparable utility random variables. The realization of the individual utility values depends on the culture of the society, which is simply a probability distribution over the range of utility intensities. We consider three prominent ideals of justice defined in cardinal Date: September, 2008. ∗ We thank Toni Calvo, Gabor Lugosi, Larry Samuelson, and Rann Smorodinsky for valu- able comments. Financial support by the Spanish Commission of Science and Technology CICYT (SEJ2006-11510, SEJ2005-01481/ECON), the Barcelona GSE research network, and the Generalitat de Catalunya is gratefully acknowledged. † Universitat Pompeu Fabra. E-mail: jose.apesteguia@upf.edu. ‡ Universitat Autonoma de Barcelona. E-mail: miguelangel.ballester@uab.es. § Vanderbilt University. E-mail: rosa.ferrer@vanderbilt.edu. 1 2 terms: utilitarianism (or efficiency), maximin, and maximax. In short, utilitarian- ism evaluates an alternative in terms of the average of the individual utility values. The maximin principle disregards the utility values of the most favored individuals to evaluate an alternative on the basis of the utility value of the worst-off agent. In contrast with maximin, the maximax rule focuses on the best-off individuals. Maxi- max as an ideal of justice may appear a mere formal curiosity. However, we will see that, because of its close connection to plurality voting, the maximax principle plays a more important role in democratic political institutions than might be expected. In our model, n individuals must choose an alternative from a set of k ≥ 3 alter- natives. Decision rules serve precisely this purpose. A decision rule transforms the ordinal preferences of the individuals into a selection of alternatives. We impose no restriction on the possible set of decision rules, other than assuming that it uses the actual ordinal preferences of the individuals. The question arises of what the optimal decision rules are in terms of a particular cardinal ideal of justice. That is, we explore the connection between a given ideal of justice and different decision rules, with the aim of identifying those that best serve the pursued ideal of justice. There are different options for measuring decision rule performance. A natural index can be obtained by evaluating decision rules in terms of their expected attainable value for a given ideal of justice. Another index emerges by judging decision rules on the basis of the probability of their selecting the best alternative for a given theory of justice. Yet a third possibility is to measure the probability of avoiding the worst alternatives. The three criteria approach the same problem from different angles, and hence in principle complement each other. It could be argued that the first index adopts a risk-neutral approach to measure the success of decision rules, while the second and third indices could be understood as representative of risk-loving and risk-averse positions, respectively. Firstly, we show that a particularly prominent class of decision rules emerges as optimal: the class of scoring rules. A scoring rule is a vector of fixed points that individuals assign to the different alternatives. The plurality scoring rule, the negative scoring rule and Borda’s scoring rule are especially salient. This result significantly restricts the class of decision rules from which to seek the optimal ones. A further point is that scoring rules are relatively easy to implement and widely used. Secondly, our results indicate that the message for each ideal of justice is robust across indices. That is, what matters is the nature of the ideal of justice, not the particular way of measuring decision rule performance. Thirdly, we provide the optimal decision rules for the three ideals of justice. In utilitarian terms, we show that there is a mapping from the culture of the society to the optimal decision rule. Moreover, we find the exact shape of the optimal decision rule, conditional on the culture of the society. We then illustrate the result with a number of examples. In particular, we show that for a range of cultures satisfying 3 a certain regularity condition, a prominent scoring rule emerges as optimal: Borda. When the culture follows the normal distribution, the optimal decision rule for util- itarianism is not Borda but a scoring rule where the differences in the values given to consecutive alternatives is a symmetric and strictly convex function. That is, with the normal distribution, the optimal scoring rule strongly discriminates between the very best alternatives and also between the very worst alternatives. Alternatives in between are treated as almost alike. We explore the connection between the optimal utilitarian decision rule and other prominent cultures, such as the exponential or the logistic distribution. In contrast to utilitarianism, maximax offers a unique optimal decision rule for every possible culture. It proves to be a remarkably important decision rule: plurality. Although plurality is probably the most widely used voting system in the democratic world, our results show that, instead of maximizing efficiency or the well-being of the worst-off agents in a society, plurality maximizes the well-being of the best-off, a property that may be considered of questionable merit. Finally, maximin is best approached with the negative scoring rule. Given the link between plurality and maximax, it is not surprising that negative, the symmetric scoring rule to plurality, is the best decision rule in terms of maximin, which can be shown to be in a way symmetric to maximax. Interestingly, the results for the three ideals of justice point to the three best-known scoring rules: plurality, Borda, and negative. We are certainly not the first to evaluate decision rules. There is a large and still growing literature examining decision rules in terms of the properties they satisfy. In other words, decision rules are judged on the basis of their capacity to meet cer- tain desirable properties such as anonymity, independence of irrelevant alternatives, strategy-proofness, consistency of the social preference ordering, Pareto-dominance, path-independence, probability of selecting the Condorcet winner, etc.1 In this paper, we focus not on the specific properties that voting systems may or may not satisfy, but on how well they perform in terms of an ideal of justice. If there is agreement over which ideal of justice is to be pursued, it seems much more relevant to evaluate voting systems on the basis of how well they serve that ideal, than it is to calculate the probability of their electing the Condorcet winner, for example. In other words, in this paper we shift the decision rule evaluation criterion from an ordinal to a cardinal approach. The problem therefore reduces to inferring the relevant utility intensities from ordinal rankings. There is very little work on evaluating decision rules on the basis of some cardinal theory of justice. Notable exceptions are the early simulation studies of Bordley (1983) and Merrill (1984), and the theoretical work of Weber (1978). Bordley and 1Early studies are Brams and Fishburn (1978), Caplin and Nalebuff (1988), DeMeyer and Plott (1970), and Nurmi (1983). See also Benoit and Kornhauser (2007), Dasgupta and Maskin (2008), Gehrlein (1997), Levin and Nalebuff (1995), Myerson (2002), and Saari (1999). 4 Merrill use simulations to analyze the efficiency of different voting systems, including plurality and Borda. Consistent with our results, they show that plurality is easily outperformed in utilitarian terms by other decision rules. Weber (1978) studies the performance of scoring rules for the case of utilitarianism and for cultures following the uniform distribution. He shows that, asymptotically, Borda is the best scoring rule in this case. This, again, is consistent with our results. In another related strand of literature, there are papers that study how to select a voting rule in a constitutional setting where there are two options, the status quo and a second alternative, and individual preferences are uncertain. A voting rule is characterized by the number of votes needed to accept the second alternative over the status quo. The papers that comprise this literature examine issues such as which voting rules maximize efficiency, which are self-stable, how to weight votes in heterogeneous contexts, self-enforcement voting rules, etc. For examples in this vein, see Rae (1969), Barbera and Jackson (2004, 2006), Maggi and Morelli (2006) and papers cited therein. Finally, there is a growing literature addressing the question of the transmission of utility intensities in collective decision problems (see Casella, 2005; Jackson and Sonnenschein, 2007; and Hortala-Vallve, 2007). The innovation of these papers is to consider a collective decision situation problem repeated over T times and endow individuals with a maximum number of votes to allocate over the T problems. By so doing, individuals may transmit utility intensities. The remainder of the paper is organized as follows. Section 2 introduces in detail the setting in which we will be working. Sections 3, 4, and 5 study the cases of utilitarianism, maximax and maximin, respectively. Finally, Section 6 presents some conclusions. All the proofs are given in Appendix A. 2. Environment Let N be a finite set of individuals with cardinality n ≥ 2 and K the set of alternatives with cardinality k ≥ 3. Typical elements of N are denoted by i and j and those of K are denoted by l,h and q. We then say that a society is composed of n individuals with preferences over k alternatives. To address the question of finding the best ordinal decision rule to approach each given ideal of justice, we first present the cardinal environment (utilities and ideals of justice), then the ordinal setting (decision rules and ordinal preferences), and then the one that connects the two worlds (indices evaluating the success of a decision rule in terms of an ideal of justice). 2.1. Cardinal Preferences. Individual preferences over the set of alternatives are cardinal, interpersonally comparable utility random variables in the [0, 1] interval. Uli is the random variable representing the cardinal utility of individual i for alternative 5 l. We adopt the convention that subindices refer to individuals and superindices refer to alternatives. Let culture C be the probability distribution from which the cardinal individual utility values are drawn. We consider cultures with continuous probability distributions on [0, 1]. Hence, the probability that Uli takes a particular value on [0, 1] is zero, and then the probability of ties (i.e., of individual i being indifferent between two alternatives) is also zero.2 Moreover, we assume that variables {Uli}i∈N,l∈K are iid. We say that a culture is symmetric whenever its density function is symmetric. Given the random variables U1i ,U 2 i , . . . ,U k i , the order statistics U (1) i ≤ U (2) i ≤ ···≤ U (k) i are also random variables, defined by sorting the realizations of U (1) i ≤ U (2) i ≤ ··· ≤ U(k)i in increasing order of magnitude. U (l) i denotes the l-th order statistic of individual i, representing the utility value for individual i of that alternative having l− 1 alternatives with lower utility values. Analogously, we will be using order statistics given an alternative l. Consider the collection of random variables Ul1,U l 2, . . . ,U l n, and arrange them in order of magnitude by denoting Ul(1) ≤ U l (2) ≤ ··· ≤ U l (n). Here U l (i) denotes the utility value of the i-th order statistic for alternative l, representing the utility value of l for that individual who ranks l higher than exactly i−1 individuals. A Social Welfare Function SWF is a mapping W from [0, 1]n×k to [0, 1]k, where W l(Ul) ∈ [0, 1] denotes the social value of alternative l, given the realization of random variables Ul = (Ul1, . . . ,U l n). 3 The three SWFs we consider here are utilitarianism, maximin, and maximax. Utilitarianism evaluates an alternative by taking the average of individual cardinal utilities. Formally, a SWF is utilitarian if W = WUT with W lUT (U l) = ∑n i=1 U l i/n. The maximin principle evaluates an alternative on the basis of the utility value of the worst-off agent, disregarding any other utility value. In other words, a SWF is of the maximin type if W = WMN with W l MN (U l) = Ul(1). Consider also the maximax rule. In contrast to maximin, the maximax rule focuses on the best-off individuals. That is, a SWF is of the maximax type if W = WMX with W lMX(U l) = Ul(n). 2.2. Ordinal Preferences. The following describes the ordinal rankings of the in- dividuals over the set of alternatives. M is an n × k matrix with properties: (1) mli ∈ {1, . . . ,k}, and (2) mli 6= mhi for all i ∈ N and for all l,h ∈ K, l 6= h. Entry mli denotes the position of alternative l in the preferences of individual i, where the higher mli is, the higher alternative l is ranked by individual i. 4 Mi denotes the i- th row of matrix M. That is, Mi represents the ordinal preferences of individual i. Ml denotes the l-th column of matrix M, representing the ordinal preferences of all 2Given our assumption that cultures are continuous probability distributions on [0, 1], all our results naturally extend to other ranges such as (0, 1), (−∞,∞), or [0,∞). 3Throughout the paper we use the terms “social welfare function” and “ideal of justice” indistinctly. 4Note that given the assumptions on continuous probability distributions, there are no ties, and hence property (2) above follows. 6 individuals with respect to alternative l. The collection of all possible matrices M is denoted by M. Finally, by l(h) we refer to the number of individuals that place alternative l exactly above h− 1 alternatives. That is, l(h) = |{i ∈ N : mli = h}|. A multi-valued decision rule f is a correspondence from M to K. Denote by F the set of all decision rules f. That is, a decision rule takes ordinal information on preferences as input to determine a set of alternatives as social choice. We assume that f uses true information. That is, the particular matrix M over which f is applied is assumed to be known. Scoring rules are a particularly interesting class of decision rules. They are typically simple to implement in practice and they encompass a number of widely-used decision rules. Formally, a scoring rule S can be represented by a vector S ∈ [0, 1]k, with Sl denoting the strength of an individual’s vote for whichever alternative she ranks higher than exactly l − 1 alternatives. We normalize strength of vote by assigning a value 1 to the best alternative, and a value 0 to the worst. That is, we set Sk = 1 and S1 = 0. Note that this normalization of the extreme values is without loss of generality. We denote by S(M) ⊆ K the set of alternatives selected by scoring rule S with preferences M. An alternative l is selected by scoring rule S when M, if l gets the highest number of points across individuals when ordinal preferences are M. The especially salient scoring rules are plurality, Borda, and negative. A scoring rule is plurality if S = SPl with S l Pl = 0 for every l < k. It is negative if S = SNg with SlNg = 1 for every l > 1, and it is Borda if S = SBd with S l Bd = l−1 k−1 for every l. 2.3. Cardinal and Ordinal Preferences: Evaluating Decision Rules. We will be using three different indices to evaluate the performance of alternatives in terms of the ideals of justice under consideration. The first, which we denote by the α-index, judges an alternative l on the basis of the expected value that l provides in terms of an ideal of justice W. That is, αlW (M) = E[W l(Ul) | M]. Recall that W lUT (U l) = ∑n i=1 U l i n , W lMN (U l) = Ul(1), and W l MX(U l) = Ul(n). For the case of utilitarianism and given ordinal preferences M, alternative l is better than alternative q in terms of the α-index, if the expected average utility value of l is larger than the expected average value of q. Therefore, the aim is to find decision rules that select alternatives with the highest expected average utility value. Now consider maximin. Then, for a given M, alternative l is better than alternative q in terms of the α-index, if l provides a higher expected value of the lowest order statistic, than q. Finally, l is better than q for maximax in terms of the α-index, if l provides a higher expected value of the highest order statistic than q, given ordinal preferences M. 7 The β-index, on the other hand, measures for a given SWF W, the probability of an alternative l being optimal : βlW (M) = P(W l(Ul) ≥ Wh(Uh) for all h ∈ K \{l} | M). Instead of looking to the expected value of an alternative, the β-index considers the probability of that alternative providing the highest social welfare value, given ordinal preferences M. Under utilitarianism, maximin, and maximax, we will be talking about the probability of selecting those alternatives that give the highest average utility value, the highest value among the first order statistics, and the highest value among the highest order statistics, respectively. Finally, for a given SWF W the γ-index evaluates alternatives in terms of the probability of not choosing the worst alternative: γlW (M) = 1 −P(W l(Ul) < Wh(Uh) for all h ∈ K \{l} | M) = P(W l(Ul) ≥ Wh(Uh) for some h ∈ K \{l} | M). The three indices are different in nature. It could be argued that the α-index adopts a risk neutral approach to measure the success of decision rules. Indices β and γ, however, could be understood as adopting risk-loving and risk-averse positions, respectively. Indices and ideals of justice are intimately linked. There is a natural link between utilitarianism and the α-index, between maximax and the β-index, and between max- imin and the γ-index. It is in fact the case that these natural links translate into ana- lytical tractability. We will see that utilitarianism is best approached analytically by the α-index, while the β-index is poorly suited to the formal study of utilitarianism. With respect to maximax, in contrast, great analytical progress can be made with the β-index, but the tractability of maximax with regard to α becomes complex. For intuition, consider for instance the α-index of an alternative l in utilitarian terms. The value of the α-index is the average of the expected value of the different order statistics that make up alternative l. In terms of maximax (and similarly for max- imin), one has to obtain the expected value of the highest order statistic of l. This is a challenge. If there is an individual who ranks l as her best alternative, then this individual is a good candidate to represent the highest order statistic of l. However, if for example there are many individuals who ranks l as their second best alterna- tive, then it is likely that the highest order statistic of l is among the latter group of individuals. Thus, there is a complex dependent structure that forces consideration of the interrelation between the random utility variables of all the individuals in the society for all the alternatives. An XW -optimal decision rule, with XW = {αW ,βW ,γW}, is a decision rule f that always selects alternatives with the largest X-index for ideal of justice W. That is, 8 f is XW -optimal decision rule if for all M ∈M: l ∈ f(M) ⇒ XlW (M) ≥ X h W (M) for all h ∈ K. It is straightforward to see that, given an XW -optimal decision rule f, any other decision rule in the family δ(f) = {g ∈F : ∅ 6= g(M) ⊆ f(M) for all M ∈M} is also an XW -optimal decision rule. In order to characterize the set of XW -optimal decision rules, it is sufficient to identify the maximum XW -optimal f. We will say that f is the maximum XW -optimal decision rule if whenever f and g are XW -optimal, then it must be that g ∈ δ(f). 3. Utilitarianism We first show that for every n×k society and every culture, the optimal decision rule to maximize the utilitarian expected value is a scoring rule. This is good news. It implies that if the interest is to maximize the expected value of utilitarianism, it is advisable to implement a scoring rule, which is a relatively simple decision rule. Furthermore, we provide the exact form of the optimal scoring rule, conditional on the culture under consideration. More specifically, a culture determines the expected value of the order statistics, which in turn determines the optimal value of the scoring rule. Knowledge of the culture of the society provides information on the expected value of the order statistics, which can be used to design the optimal scoring rule. In particular, we show that for a range of cultures with symmetric density functions, a prominent scoring rule emerges as the maximum optimal: Borda. The intuition goes as follows. The jumps in strength that Borda assigns to consecutive order statistics are constant. Hence, cultures in which the expected value of the order statistics has this property are the most closely linked to Borda. Also, when the culture follows the normal distribution, we show that the optimal decision rule is a scoring rule where the differences in the values given to consecutive alternatives is a symmetric convex func- tion. That is, under the normal distribution, it is optimal to discriminate between the very best alternatives and also between the very worst alternatives, and less impor- tant to discriminate between the intermediate alternatives. Interestingly, when the culture of the society follows a Cauchy distribution then the pattern becomes even more pronounced. In this case, the optimal scoring rule tends to discriminate be- tween the very best alternative and the very worst alternative, treating all remaining alternatives in almost the same manner. We then turn to the analysis of the β- and γ-indices. The β-index (as well as the γ) is less well suited than the α-index to the analytical study of utilitarianism. The source of difficulty lies in the dependency across alternatives. To determine the probability of an alternative being the utilitarian alternative, it is necessary to take the whole society into account. This dependency drastically limits the analytical tractability of utilitarianism in terms of the β-index. For this reason, we begin with 9 the formal study of a small society, a 2×3 society, for a complete range of cultures with symmetric density functions, and then we run a set of simulations to approach larger societies. Our analytical results for small societies and the computational analysis for larger societies provide analogous results as those obtained in the formal study of the α-index. This is reassuring since it indicates that there is a great deal of consistency across indices. What matters is the social welfare function, not the particular way of measuring success. Finally, our analysis of the γ-index exploits a symmetry relation with the β-index, allowing us to immediately reach the same conclusions as those reached with the β-index. We organize the study of utilitarianism by first giving the general results obtained with the α-index, and we then turn to the study of the β- and γ-indices. 3.1. The αUT -index: Evaluating Decision Rules in terms of Expected Value. Theorem 3.1 below provides the main result for utilitarianism. It first identifies a scor- ing rule as the maximum optimal decision rule, and then it characterizes the exact shape of the scoring rule. Importantly, it does so for any n × k society and for any culture. Theorem 3.1. For n×k societies and for every culture, the maximum αUT -optimal rule is a scoring rule with S∗l = E[U(l)]−E[U(1)] E[U(k)]−E[U(1)] , l ∈{1, . . . ,k}. Theorem 3.1 shows that there is a mapping from the culture of the society to the optimal decision rule. A culture determines the first moment of the order statistics, and this in turn characterizes the optimal decision rule. This raises the question of what the optimal decision rules of especially prominent cultures are like. The follow- ing corollary represents a first illustration. Corollary 3.2. The maximum αUT -optimal rule is Borda: • For n×k societies and for every culture such that E[U(l+1)]−E[U(l)] = c, with 1 ≤ l ≤ n− 1. • In particular for the uniform distribution. • For n× 3 societies and for every culture with a symmetric density function. Corollary 3.2 points to a prominent decision rule, Borda, as the optimal rule for a wide range of cultures with density functions satisfying a regularity condition. But there are many other relevant cultures for which to obtain the optimal scoring rule. Consider the normal distribution, for example. The expected value of the order sta- tistics from the normal distribution are tabularized (see, e.g., Teichroew, 1956). From 10 inspection of these values, it immediately emerges that the αUT -optimal decision rule in this case is a scoring rule where S∗l+1 −S∗l is a symmetric and convex function. A more extreme version of the above emerges when considering the Cauchy distribution (see, e.g., Barnett (1966) for the expected values of the Cauchy order statistics). In the latter case, the optimal scoring rule tends to discriminate only between the very best alternative, the very worst alternative and all the rest. We can further apply our Theorem 3.1 to other classes of probability distributions via known results in the literature of order statistics. By way of illustration consider the following class of probability distributions F (see Kamps, 1991, 1992; see also Balakrishnan and Sultan 1998): d dt F−1(t) = 1 d tp(1 − t)q−p−1, t ∈ (0, 1), where p and q are integers and d > 0. The values of parameters p and q determine the probability distribution. For example, if p = q = 0 we get the expo- nential distribution, if p = q = −1 we get the logistic distribution, if p > −1 and q = p + 1 we get the power function, etc. We can then establish the following result for this class of probability distributions. Theorem 3.3. For n × k societies and for the class of cultures F , the maximum αUT -optimal rule is a scoring rule with S∗l = ∑l h=2 E[U (h)] − E[U(h−1)]∑k h=2 E[U(h)] − E[U(h−1)] , l ∈{1, . . . ,k}, with E[U(h)] − E[U(h−1)] = ( k h−1) (h+p)(k+qh+p) . The introduction of the values of the parameters into the equations of Theorem 3.3 immediately gives the optimal scoring rule. By way of illustration, let k = 3. It is immediate that when there are three alternatives, the optimal scoring rule is well-defined by the value assigned to the middle alternative. Corollary 3.4. For n × 3 societies and for the class of cultures F , the maximum αUT -optimal rule is a scoring rule with S ∗2 = 1−p+q 3+q , where p and q are integers. The above corollary provides the optimal scoring rule contingent on the values of parameters p and q, and hence contingent on the culture of the society. 11 3.2. The βUT -index: Evaluating Decision Rules in terms of the Probability of Selecting an Optimal Alternative. Due to the analytical complexity of the study of utilitarianism through the lens of the βUT -index, we begin with the formal study of a small society, a 2×3 society, for a complete range of cultures with symmetric density functions, and we then run a set of simulations to approach larger societies. In societies with n = 2 and k = 3 there are 5 different scoring rules, since every S2 ∈ (0, 1/2) represents the same scoring rule, and similarly every S2 ∈ (1/2, 1) also represents the same scoring rule.5 Hence, the set of different scoring rules when n = 2 and k = 3 comprises plurality with S2Pl = 0, Borda with S 2 Bd = 1/2, negative with S2Ng = 1, an explosion rule with any value S 2 Ex ∈ (1/2, 1), and an implosion rule with any value S2Im ∈ (0, 1/2). We study a collection of cultures with symmetric density functions. Take the para- bolic function f(x) = ax2 +bx+c, with x ∈ [0, 1]. Now, in order for f(x) to represent a symmetric density function it must be the case that a = −b = −(1−c), with c tak- ing values in [0, 3]. Note that the c = 1 case corresponds to the uniform distribution. Values of c ∈ [0, 1) correspond to strictly concave density functions. That is, lower values of c represent higher levels of consensus on the evaluation of an alternative. Finally, values of c ∈ (1, 3] correspond to strictly convex density functions. Hence, higher values of c represent higher levels of extremism. Theorem 3.5. For 2 × 3 societies and for any culture with a symmetric parabolic function: (1) The maximum βUT -optimal rule is the implosion scoring rule. (2) The intersection between the alternatives selected by Borda and those selected by the maximum βUT -optimal rule is always non-empty. The analysis of the 2 × 3 case shows that any scoring rule with S2 ∈ (0, 1/2) is βUT -optimal. Moreover, it also shows that although Borda is not βUT -optimal, it comes close to being so. For every type of society M, the alternatives selected by Borda and implosion coincide, except for one (which in the proof of Theorem 3.5 we call societies of type 4) where Borda randomizes between the 3 alternatives while implosion randomizes between 2 alternatives. We extend the study of the βUT -optimal decision rule by using computational methods. We generate random cardinal societies from three different probability distributions: the uniform distribution on the interval [0, 1], the standard normal distribution on the interval (−∞,∞), and the exponential distribution on the interval [0,∞). We study societies of 2, 3, 5, 10 and 100 individuals with preferences over 3, 4, 5 and 7 alternatives. The technical details are contained in Appendix B. 5We say that two scoring rules S and S′ are the same if S(M) = S′(M) for all M. 12 The main conclusion of the computational analysis is very clear. The results across probability distributions and sizes of societies are fully in line with the analytical results we presented for the case of the αUT -index. That is, for each of the three probability distributions and sizes of societies scrutinized, the scoring rule providing the highest βUT -value is the corresponding one as stated in Theorem 3.1. In particular, for the uniform distribution the highest βUT -value is given by Borda; for the normal distribution it is given by a scoring rule where S∗l+1 −S∗l is a symmetric and convex function; and finally for the exponential distribution, the highest βUT -value is given by a scoring rule where S∗l+1 −S∗l grows exponentially.6 3.3. The γUT -index: Evaluating Decision Rules in terms of the Probabil- ity of Not Choosing the Worst Alternative. It is not difficult to appreciate that for utilitarianism and symmetry of the culture C, the γ-index is symmetric to the β-index in the following sense: take a society {Uli}i∈N,l∈K, and let l be an al- ternative giving the highest utilitarian value. Write the following symmetric society {U ′li }i∈N,l∈K with U ′l i = 1 −Ulσ(i) where σ(i) = n− i + 1. It follows that alternative l in society {U ′li }i∈N,l∈K is one of the worst alternatives in utilitarian terms. Then, the analytical and simulation results that we obtained for the β-index and for symmetric cultures can be extrapolated to the case of the γ-index. To complete the picture, we run an extra set of simulations for the exponential distribution, an asymmetric distri- bution, that points to, once again, that the particular index to measure performance is not essential (see Appendix B). We may conclude, therefore, that at least for the cases computationally scrutinized, the optimal decision rules in terms of γUT are well captured in Theorem 3.1. 4. Maximax We start the analysis of maximax by showing formally that for any n×k society and for any culture, the maximum optimal decision rule in terms of the probability of selecting the maximax alternatives is a scoring rule. In fact, it is a particularly simple and widely used scoring rule: plurality. The intuition is very simple. Maxi- max evaluates an alternative l in terms of that individual that most values alternative l. It is very likely that such an individual ranks l as her most preferred alternative. Consequently, those alternatives that are considered by the highest number of indi- viduals as best are the most likely maximax alternatives. Plurality selects precisely these alternatives. The analytical and computational study of the two other indices reinforce the connection between plurality and maximax. 6For the sake of comparison, Appendix B reports the βU T -values of the optimal scoring rules as predicted by Theorem 3.1, together with the three prominent scoring rules–plurality, Borda, and negative–for each of the societies and cultures under scrutiny. 13 We start the analysis of the maximax case by first giving the general results reached with the β-index and then we turn to the study of the α and γ-indices. 4.1. The βMX-index: Evaluating Decision Rules in terms of the Probability of Selecting an Optimal Alternative. Theorem 4.1 below shows that something as simple as the plurality decision rule offers the highest probability of selecting the maximax alternative. Theorem 4.1 does not assume any particular probability distri- bution over the individual utility values, or any society size. Theorem 4.1. For n×k societies and for any culture, the maximum βMX-optimal rule is the plurality scoring rule. Corollary 4.2 reinforces the role of plurality in the maximax ideal of justice. It shows that, as the society grows, plurality is the unique optimal scoring rule. Corollary 4.2. For any given k and for any culture, when n tends to infinity plural- ity is the only scoring rule in the set of βMX-optimal scoring rules. Theorem 4.1 and Corollary 4.2 give a very clear message: if the interest is in maximax, then the decision rule that should be implemented is as simple as plurality, irrespective of the culture and size of the society. 4.2. The αMX-index: Evaluating Decision Rules in terms of Expected Value. We start the analysis of maximax in terms of the α-index by studying the contribu- tion made to the maximax expected value of an alternative l by adding one extra best order statistic, as opposed to the value added by a second best order statistic, when the culture follows the uniform distribution. We explore the extreme case where everybody ranks alternative l as the best. It is in this case that the extra expected maximax value of adding one best alternative is intuitively the smallest. We show that, even in this case, the contribution made to the expected maximax value by adding one extra best order statistic is of a higher order of magnitude than that made by adding a second best order statistic. Then, plurality is the clear candidate to be the optimal maximax decision rule in terms of the α-index, since it gives weight only to the best random variables. Consider the n×k society M such that mli = k for every i ∈{1, . . . ,n}. That is, all n individuals in society M rank alternative l as the best. Consider also the following two (n + 1)×k societies, M ′ and M, such that m′li = k for every i ∈{1, . . . ,n,n + 1}, and mli = k for every i ∈ {1, . . . ,n,n + 1} \ {j} and mlj = k − 1. In M ′, all n + 1 14 individuals rank l as the best alternative, while in M, there are n individuals who rank l as best, and one that ranks l as second best. Now, taking the n × k society M as the baseline, we ask what is the marginal contribution to the l-th maximax expected value of adding one extra individual who ranks l as best (society M ′). Also, we wonder about the marginal contribution of adding one extra individual who ranks l as second-best (society M). Denote these marginal contributions by ∆ (k) n and ∆ (k−1) n , where ∆ (k) n = E[Ul(n+1)|M ′l] − E[Ul(n)|M l] and ∆ (k−1) n = E[Ul(n+1)|M l ] − E[Ul(n)|M l]. The ratio ∆ (k) n ∆ (k−1) n represents the ratio of the marginal contributions of an extra order statistic in the top positions k and k − 1. Lemma 4.3 below shows that, for the uniform distribution, when l(k) = n, the ad- ditional expected value provided by one extra order statistic in the same position k is considerably higher than that provided by one extra order statistic in position k−1. Lemma 4.3. For n×k societies and for the uniform distribution, ∆ (k) n ∆ (k−1) n = k(n+1) k−1 . Intuitively the situation where everybody ranks l as best is the worst-case scenario for the expected marginal contribution of adding one extra individual who rank l the best alternative. Even in this case, Lemma 4.3 shows that the order of magnitude in the expected maximax value of an extra best random variable is considerably higher than that of an extra second best random variable. This clearly points to plurality as the candidate for the optimal maximax decision rule. Plurality gives weight only to best random variables, and hence selects alternatives with the highest number of best random variables. In the context of n individuals and 3 alternatives, and for the uniform distribu- tion, Proposition 4.4 below first provides the exact formula for the computation of the maximax expected value of any alternative l. Then, it shows that only under extreme circumstances does plurality prove not to be the αMX-optimal decision rule. Proposition 4.4. For n× 3 societies and for the uniform distribution, (1) E[Ul(n) | M] = ∑l(2) a=0 ∑l(1) b=0 ∑3b c=0 ( l(2) a )( l(1) b )( 3b c ) (−1)a+b+c3l(2)−a2a 3l (3)+2l(2)+a+c 3l(3)+2l(2)+a+c+1 (2) Let h be an αMX-optimal alternative and let p ∈ SPl(M)\{h}. Then, M must satisfy that either (a) h(3) = p(3) and h(2) ≥ p(2), or (b) h(3) = p(3) − 1 and h(2) > n−1 2 Proposition 4.4 shows that plurality is very difficult to beat in terms of its capacity to optimize the maximax expected value. The plurality alternative can be surpassed 15 by another alternative in terms of αMX if about the same people rank it as the best alternative and (many) more people rank it as second-best. Clearly, these are low- probability events, and hence plurality is very likely to be the αMX-optimal decision rule. In accordance with the above, the computational studies for the uniform, normal, and exponential distributions show that, for every single size of society scrutinized, plurality or a scoring rule in the neighborhood of plurality are always the αMX-optimal decision rule among the set of scoring rules evaluated (see Appendix B for details). 4.3. The γMX-index: Evaluating Decision Rules in terms of the Probability of Not Choosing the Worst Alternative. We start with the characterization of a small society. Theorem 4.5. For 2 × 3 societies and for any culture with a symmetric parabolic function: (1) Implosion is a γMX-optimal decision rule. (2) The intersection between the alternatives selected by plurality and those selected by the maximum γMX-optimal decision rule is always non-empty. Note that implosion is not the maximum γMX-optimal decision rule since, in soci- eties where the two individuals share the same ranking over the alternatives, implosion selects the single best alternative, instead of the two better alternatives. However, it is not difficult to see that, for general n×k societies, plurality is the natural candidate to select γMX-optimal alternatives. Below, in Proposition 4.6, we show that, for any n × k society and for any culture, whenever there is a set of alternatives Pareto-dominating some other alternatives, any decision rule selecting this set of Pareto-dominating alternatives is optimal in the sense of maximizing the probability of avoiding the selection of worst maximax alternatives. Clearly, plurality alternatives tend to be Pareto-dominating, and hence plurality voting is the most obvious candidate to be the optimal decision rule in terms of the γMX-index. We write Ml > Mh whenever mli > m h i for every i. That is, every individ- ual i ranks alternative l higher than alternative h. This is equivalent to Pareto- dominance. Then, consider the following set P(M) = {l ∈ K such that there exists h ∈ K with Ml > Mh}. Proposition 4.6. For n×k societies and for any culture, whenever the set P(M) is non-empty, P(M) is the maximum γMX-optimal rule. 16 Finally, the simulations also generally select plurality as the best decision rule, across society sizes and cultures (see Appendix B for a discussion). 5. Maximin For the analysis of the maximin case we exploit a symmetry between maximin and maximax. This allows us to directly extrapolate results that we obtained from the maximax case to the maximin case. In particular, the results point to negative, the symmetric scoring rule of plurality, as the obvious candidate to be the optimal decision rule for maximin in terms of the three indices of consistency, α, β, and γ. Denote by 1 an n×k matrix with all entries equal to 1. Then, consider the follow- ing Theorem. Theorem 5.1. For n×k societies, symmetric cultures, every M ∈M, and l ∈ K: (1) αlMN (M) = 1 −α l MX((k + 1)1 −M), (2) βlMN (M) = 1 −γ l MX((k + 1)1 −M), and (3) γlMN (M) = 1 −β l MX((k + 1)1 −M). Theorem 5.1 allows the extrapolation of all analytical and simulations results ob- tained in the previous section for maximax that involve symmetric cultures to the case of maximin. This means that negative is the decision rule best suited to optimize maximin. For asymmetric cultures, Theorem 5.1 does not apply. To test the robust- ness of our theoretical findings when the culture is asymmetric, we estimate the value of the three indices for the case of the exponential distribution. Table 3 in Appen- dix B reports the results. Once more, it can be appreciated that negative generally emerges as the optimal scoring rule in the computational analysis (see Appendix B for a more detailed account of the results of the simulations). 6. Conclusions This paper explores the relation between ideals of justice and decision rules. Whereas ideals of justice are typically presented in cardinal terms, decision rules are primarily constructed on the basis of ordinal information. We study the cardinal consequences of using ordinal-based decision rules. We have shown that the optimal choice of decision rules depends on the criterion of justice that one wishes to follow. Among our specific findings we emphasize that our results identify a particularly prominent set of decision rules as optimal: the set of scoring rules. Moreover, the three most prominent scoring rules, plurality, Borda, and negative, are optimal for the three different ideals of justice. Maximax is best approached by plurality for any possible culture, maximin is best approached by negative, and, for a range of cultures, utilitarianism is best approached by Borda. 17 Moreover, in the latter case of utilitarianism we provide the mapping between cultures and optimal decision rules. Appendix A. Proofs Proof of Theorem 3.1. Recall that αlUT (M) = E[ ∑ i U l i n | M]. The independence of the random variables Uli across individuals allows us to write α l UT (M) = ∑ i E[U l i | Mi]/n. In addition, since, for every individual i, all the random variables are identi- cally distributed, we can write αlUT (M) = ∑ i E[U l i | Mli ]/n. Finally, since Ul1, . . . ,Uln are also identically distributed, we can write the last expression in terms of the num- ber of order statistics. First, note that, since U (h) i and U (h) j are identically distributed, we may simply write U(h). Then, αlUT (M) = ∑ h l (h)E[U(h)] n . The value of the difference between two alternatives l and q is αlUT (M)−α q UT (M) =∑ h l (h)E[U(h)] n − ∑ h q (h)E[U(h)] n = ∑ h(l (h)−q(h))E[U(h)] n . Note that ∑ h l (h) = ∑ h q (h) = n, and therefore ∑ h E[U (1)](l(h)−q(h)) n = 0. We then write αlUT (M)−α q UT (M) = ∑ h(l (h)−q(h))E[U(h)] n −∑ h E[U (1)](l(h)−q(h)) n and hence αlUT (M) − α q UT (M) = ∑ h(l (h)−q(h))(E[U(h)]−E[U(1)]) n . Note that E[U(k)] − E[U(1)] > 0. Then, multiplying and dividing by E[U(k)] − E[U(1)], we have αlUT (M) −α q UT (M) = E[U(k)] − E[U(1)] n ∑ h(l (h) − q(h))(E[U(h)] − E[U(1)]) E[U(k)] − E[U(1)] = E[U(k)] − E[U(1)] n ( ∑ h [l(h) − q(h)]S∗h). Since E[U(k)] − E[U(1)] > 0, it follows that, for every M, S∗ gives exactly the same ranking over the alternatives as the one given by utilitarianism. Hence, the two claims of the theorem follow. � Proof of Corollary 3.2. The first two points in the corollary follow directly from Theorem 3.1. To see the third claim, consider that a well known fact in order sta- tistics theory is that ∑ l E[U (l)] = kE[Uh] for any alternative h. Consequently, since the symmetry of the density function implies that E[Uh] = E[U(2)] = 1 2 , it follows immediately that E[U(l+1)] − E[U(l)] = c with 1 ≤ l ≤ 2. Then, from Theorem 3.1, Borda is the αUT -optimal decision rule. � Proof of Theorem 3.5. We report the proof for the uniform distribution. The cor- responding proof for any other parabolic function is analogous, and hence is omitted. We organize the proof by types of societies in ordinal terms. Type 1: Perfect correlation. This is the case when M1 = M2. Let, w.l.o.g., M1 = (3, 2, 1). Utilitarianism always selects alternative 1. Hence, βUT (M) = (1, 0, 0). 18 Type 2: Only best-correlation. Both individuals agree on the best alternative, but disagree on the others. Let, w.l.o.g., M1 = (3, 2, 1) and M2 = (3, 1, 2). Utilitarianism selects alternative 1, and then βUT (M) = (1, 0, 0). Type 3: Only worst-correlation. Both individuals coincide in the worst alternative, but disagree on the others. Let, w.l.o.g., M1 = (3, 2, 1) and M2 = (2, 3, 1). It is straightforward to see that βUT (M) = (1/2, 1/2, 0). Type 4: Only middle-correlation. Both individuals agree on the middle alternative, but disagree on the others.7 Let, w.l.o.g., M1 = (3, 2, 1) and M2 = (1, 2, 3). To compute the selection of utilitarianism we first need to derive the joint probability distribution associated to the continuous random variables U (1) i , U (2) i and U (3) i . The joint probability density function is f(u (1) i ,u (2) i ,u (3) i ) = { 6 if 1 ≥ u(3)i ≥ u (2) i ≥ u (1) i ≥ 0 0 otherwise. Hence, the density function for the two agents is f(u (1) i ,u (2) i ,u (3) i ,u (1) j ,u (2) j ,u (3) j ) =   36 if 1 ≥ u(3)i ≥ u (2) i ≥ u (1) i ≥ 0, and 1 ≥ u(3)j ≥ u (2) j ≥ u (1) j ≥ 0 0 otherwise. We can now calculate the probability of utilitarianism resulting in the selection of alternative 2. Alternative 2 will be the utilitarian winner whenever the sum of U (2) i and U (2) j is greater than U (1) i + U (3) j and U (3) i + U (1) j . Equivalently, (A.1)∫ R ∫ R ∫ R ∫ R ∫ Ha ∫ Hb f(u (1) i ,u (2) i ,u (3) i ,u (1) j ,u (2) j ,u (3) j )du (3) i du (3) j du (2) i du (2) j du (1) i du (1) j , where Ha and Hb are the sets Ha = {t : t ≤ u (2) i + u (2) j − u (1) i } and Hb = {t : t ≤ u (2) i + u (2) j −u (1) j }. Then, (A.1) can be expressed as (A.2)∫ 1 0 ∫ 1 0 ∫ 1 u (1) j ∫ 1 u (1) i ∫ min{1,u(2)i +u(2)j −u(1)i } u (2) j ∫ min{1,u(2)i +u(2)j −u(1)j } u (2) i 36du (3) i du (3) j du (2) i du (2) j du (1) i du (1) j . It can be shown that the above is .3 (for any parabolic distribution, the value of the integral is strictly lower than 1/3). Clearly, the utilitarian choice is, with equal probability, either alternative 1 or 3. Then, βUT (M) = (.35, .3, .35) (for the remaining parabolic functions, β1UT (M) = β 3 UT (M) > β 2 UT (M). 7This type of societies has attracted a good deal of attention. Interestingly, Börgers and Postl (2007) study whether for this class of societies there are incentive-compatible rules which elicit utilities and implement efficient decisions. 19 Type 5. No correlation. Individuals do not agree on the ranking of any alternative. Let, w.l.o.g., M1 = (3, 2, 1) and M1 = (2, 1, 3). Hence, alternative 1 dominates alternative 2, and consequently the utilitarian choice will never be alternative 2. We now show that alternative 1 has a higher probability of being the utilitarian choice than alternative 3. For any society where alternative 3 is better in utilitarian terms, a society can be injectively constructed such that: (i) it is of type 5, and (ii) the utilitarian choice is alternative 1. Simply write u ′1 1 = u 3 2, u ′2 1 = u 1 2, u ′3 1 = u 2 2, u ′1 2 = u 2 1, u ′2 2 = u 3 1, and u ′3 2 = u 1 1. 8 Clearly, the constructed society is of type 5, and to see that the utilitarian choice is alternative 1, notice that u ′1 1 + u ′1 2 = u 3 2 + u 2 1 > u 3 2 + u 3 1 > u11 + u 1 2 > u 1 1 + u 2 2 = u ′3 2 + u ′3 1 . Then, β 1 UT (M) > β 3 UT (M) > β 2 UT (M) = 0. Taking into consideration all five cases together, implosion is the βUT -optimal gen- erator. This proves the first part of the theorem. The second part follows immediately from the above analysis.� Proof of Theorem 4.1. First note that only alternatives ranked best by some agents can provide the highest maximax value. In fact, due to the i.i.d. nature of utility realizations across individuals, for all M ∈M and for all h,l ∈ K βlMX(M) ≥ β h MX(M) ⇔ l (k) ≥ h(k). It is immediate that every decision rule f in δ(SPl) is a βMX-optimal decision rule since it selects precisely that subset of the alternatives that are ranked best by the largest number of individuals. Furthermore, for every f 6∈ δ(SPl) there exists an M ∈ M and an alternative h ∈ K such that h ∈ f(M) \ SPl(M). Consequently, there is an l ∈ K such that l(k) > h(k) and hence f is not a βMX-optimal decision rule.� Proof of Corollary 4.2. We prove the corollary by showing that, for any given K, when n tends to infinity, plurality is the only scoring rule in δ(SPl). Take a scoring rule f different from plurality. We now find a real number nf such that for every positive integer n with n > nf , there exists a profile M ∈M with f(M) 6⊆ SPl(M). Given that f is not plurality, Sk−1 > 0. Take nf = 2( 1 Sk−1 − 1), and n > nf . If n is odd, consider the following matrix M: Mi = (k,k − 1,k − 2, . . . , 2, 1) for all 1 ≤ i ≤ n+1 2 , and Mj = (1,k,k − 1, . . . , 3, 2) for all n+32 ≤ j ≤ n. Plurality selects alternative 1. Scoring rule f assigns to alternative 1 a total score of n+1 2 , while the total score of alternative 2 is n−1 2 + n+1 2 Sk−1. We now show that n−1 2 + n+1 2 Sk−1 > n+1 2 , or equivalently n+1 2 Sk−1 > 1. Our original assumption that n > nf = 2( 1 Sk−1 − 1) guarantees the latter inequality. If n is even, consider the matrix M with Mi = (k,k − 1,k − 2, . . . , 2, 1) for all 1 ≤ i ≤ n 2 , and Mj = (1,k,k − 1, . . . , 3, 2) for all n+22 ≤ j ≤ n − 1 and Mn = 8Note, that under i.i.d., this argument is distribution free. 20 (1,k − 1,k − 2, . . . , 2,k) . An argument analogous to the one above shows that plurality selects alternative 1 while f selects alternative 2. Then, we have shown that, for n > nf , decision rule f is not a βMX-optimal scoring rule, which proves the result.� Proof of Lemma 4.3. The distribution function of a uniform k order statistic is F (k)(t) = tk and of a (k−1) order statistic is F (k−1)(t) = tk+ktk−1(1−t). Now, the dis- tribution function of Ul(n) when M l such that mli = k for every i ∈{1, . . . ,n}, is F(t) = tnk. Then, E[Ul(n) | M] = ∫ 1 0 t dF(t) dt dt = nk nk+1 . Analogously, E[Ul(n+1) | M ′] = (n+1)k (n+1)k+1 , where m ′l i = k for every i ∈ {1, . . . ,n,n + 1}. Finally, the distribution function of Ul(n+1) when M l with mli = k for every i ∈{1, . . . ,n,n + 1}\{j} and mlj = k − 1, is F(t) = tnk(tk+ktk−1(1−t)). Then, E[Ul(n+1) | M] = ∫ 1 0 t dF(t) dt dt = k(n2k+2nk+k−1) (nk+k)(nk+k+1) . Con- sequently, E[Ul(n+1)|M ′l] − E[Ul(n)|M l] = k (nk+1)(nk+k+1) and ∆ (k−1) n = E[Ul(n+1)|M l ] − E[Ul(n)|M l] = k(k−1) (nk+1)(nk+k)(nk+k+1) . Then, the result follows.� Proof of Proposition 4.4. We start by proving point (1). For every individual i, the distribution functions of her best, medium and worst random variables are F (3)(t) = t3, F (2)(t) = t3 + 3t2(1 − t), and F (1)(t) = 1 − (1 − t)3, respectively. The distribution function of the maximum of l(3), l(2) and n−l(3)−l(2) = l(1) best, medium and worst random variables is F(t) = (t3)l (3) (t3 + 3t2(1 − t))l (2) (1 − (1 − t)3)l (1) . The polynomial decomposition of the latter expression gives F(t) = l(2)∑ a=0 l(1)∑ b=0 3b∑ c=0 ( l(2) a )( l(1) b )( 3b c ) (−1)a+b+c3l (2)−a2at3l (3)+2l(2)+a+c. The density function is f(t) = l(2)∑ a=0 l(1)∑ b=0 3b∑ c=0 ( l(2) a )( l(1) b )( 3b c ) (−1)a+b+c3l (2)−a2a(3l(3)+2l(2)+a+c)t3l (3)+2l(2)+a+c−1. Finally, the expected value is E[Ul(n)|M] = l(2)∑ a=0 l(1)∑ b=0 3b∑ c=0 ( l(2) a )( l(1) b )( 3b c ) (−1)a+b+c3l (2)−a2a 3l(3) + 2l(2) + a + c 3l(3) + 2l(2) + a + c + 1 . We start the proof of part (2) of the theorem by stating the following lemma. Lemma A.1. Let {xa}a∈T∪{b}, b /∈ T 6= ∅ be a set of independent random variables. Then E[max{xa}a∈T∪{b}]−E[max{xa}a∈T ] ≤ E[max{xa}a∈S∪{b}]−E[max{xa}a∈S] for all S ⊆ T . 21 The lemma is straightforward, and hence we omit its proof. Since p ∈ SPl(M) it must be that p(3) ≥ h(3). Let h(3) < p(3) − 1. Vector (x,y,z) represents the case where x = p(3), y = p(2), and z = p(1). Then, it is immediate that E[Up (n) | M] ≥ E[(p(3), 0, 0)].9 Since h(3) < p(3)−1 it is immediate that E[Uh(n) | M] ≤ E[(p (3)−2,n− p(3) + 2, 0)]. By Lemma A.1 E[(p(3) − 2,n− p(3) + 2, 0)] ≤ E[(p(3) − 2, 0, 0)] + (n− p(3) + 2)∆ (2) p(3)−2. We now prove that E[(p (3), 0, 0)] > E[(p(3) − 2,n− p(3) + 2, 0)]. By showing the latter, we are excluding the possibility of h being an optimal alternative whenever h(3) < p(3) − 1. Let us assume by way of contradiction that E[(p(3), 0, 0)] ≤ E[(p(3) − 2,n− p(3) + 2, 0)]. Note E[(p(3), 0, 0)] = E[(p(3)−2, 0, 0)] + ∆(3) p(3)−2 + ∆ (3) p(3)−1. Then it must be that ∆ (3) p(3)−2 + ∆ (3) p(3)−1 ≤ (n− p (3) + 2)∆ (2) p(3)−2. The latter leads to n ≥ (3p(3)−3)(3p(3)−2) (3p(3)+1) + p(3) − 2. Now, since p is a plurality alternative, n ≤ 3p(3) − 2. Then it must be that 3p(3)−2 ≥ (3p (3)−3)(3p(3)−2) (3p(3)+1) +p(3)−2. This can only be the case if p(3) ≤ 5. For all 2 ≤ p(3) ≤ 5, and for all p(3) ≤ n ≤ 3p(3)−2 the direct evaluation of the expression in point (1) of the proposition shows that E[(p(3), 0, 0)] > E[(p(3) −2,n−p(3) + 2, 0)], hence, a contradiction arises, and then it must be that E[(p(3), 0, 0)] > E[(p(3)−2,n−p(3)+2, 0)] for all n and all p defined as in the proposition, as desired. The latter shows that it can only be either h(3) = p(3) or h(3) = p(3) − 1. In the first case it is immediate that, for h to be an optimal alternative, then it can only be that h(2) ≥ p(2). For the second case, note that E[Uh(n) | M] = E[(p (3) − 1, h(2),n−p(3) + 1−h(2))]. Now, by Lemma A.1 E[(p(3)−1, h(2),n−p(3) + 1−h(2))] ≤ E[(p(3)−1, 0, 0)]+h(2)∆(2) p(3)−1 +(n−p (3) +1−h(2))∆(1) p(3)−1. Now, since p is the plurality alternative, it must be that n ≤ 3p(3)−1. Hence, (n−p(3) +1−h(2)) ≤ 2p(3)−h(2). For all p(3) ≥ 1, 2p(3)−h(2) ≤ 3p(3)−1. It can be checked that ∆ (2) p(3)−1 ∆ (1) p(3)−1 = 3p(3)−1. Hence, (n− p(3) + 1 − h(2))∆(1) p(3)−1 ≤ ∆ (2) p(3)−1. Then, E[(p (3) − 1, h(2),n− p(3) + 1 − h(2))] ≤ E[(p(3) −1, 0, 0)] + (h(2) + 1)∆(2) p(3)−1. For alternative p, E[U p (n) | M] ≥ E[(p(3), 0, 0)] = E[(p(3)−1, 0, 0)] + ∆(3) p(3)−1. Hence, for alternative h to be an αMX-optimal alternative, it must be that (h(2) + 1)∆ (2) p(3)−1 ≥ ∆ (3) p(3)−1. The latter implies that h (2) ≥ 3p (3) 2 − 1 and hence h(2) ≥ n−1 2 , as desired.� Proof of Proposition 4.6. We start by noticing that, for every l ∈ P(M), index γlMX = 1. This follows trivially from the fact that, for every l ∈ P(M), there is an h ∈ K (possibly a different h for every l) such that Ml > Mh and hence Ul(n) > U h (n). We now show that for every l ∈ K \P(M), index γlMX < 1. Suppose, w.l.o.g. that l = 1. Since 1 6∈ P(M) for every h > 1 there is an agent ih such that m1ih < m h ih . 9Note that vector (p(3), 0, 0) may not be feasible in M. 22 Denote all these agents by I = ∪h∈K\{1}{ih}. P(U1(n) < U h (n) for all h > 1 | M) ≥ P(U1(n) = U 1 j for any j ∈ I | M) ·P(U2(n) = U 2 i2 | M) · . . . ·P(Uk(n) = U k ik | M). Clearly, the latter is strictly above 0, and the result follows.� Proof of Theorem 4.5. Take the structure of the proof of Theorem 3.5. Here, too, we provide the proof for the uniform distribution. The values of γMX(M) for any other parabolic function are exactly the ones provided below. Then, the values of γMX(M) for the different types of societies are: Type 1: It is straightforward that γMX(M) = (1, 1, 0). Type 2: It is straightforward that γMX(M) = (1, 1/2, 1/2). Type 3: It is straightforward that γMX(M) = (1, 1, 0). Type 4: It is easy to appreciate that alternative 2 can never be the maximax alternative, and hence γMX(M) = (1, 0, 1). Type 5: It is straightforward that 1 = γ1MX(M) > γ 3 MX(M) > γ 2 MX(M). Finally, taking into consideration all five cases together, explosion is an optimal decision rule. The second part of the Theorem follows trivially from the above anal- ysis. � Proof of Theorem 5.1. (1) Recall that we denote the distribution function of the l-th order statistic by F (l)(t). First note that P(Ul(1) ≤ t|M) = 1 − P(U l (1) > t|M) = 1 − (1 −F (k)(t))l(k) · . . . · (1 −F (1)(t))l(1) . Given the symmetry of the culture, it follows that, for every l ∈ K, F (l)(t) = 1 − F (k−l+1)(1 − t). Therefore, P(Ul(1) ≤ t|M) = 1 −F (1)(1 − t)l(k) · . . . ·F (k)(1 − t)l(1) . The latter expression is 1 −P(Ul(n) ≤ t|(k + 1)1 − M). It follows that E[Ul(1) | M] = E[U l (n) | (k + 1)1 − M], and hence αlMN (M) = 1 −α l MX((k + 1)1 −M). (2) Given M, βlMN (M) is the probability that alternative l is the best maximin alternative. That is, βlMN (M) = P(U l (1) > U h (1) for all h ∈ K \ {l} | M). Equiv- alently, βlMN (M) = 1 − P(There exists h ∈ K \ {l} such that U l (1) < U h (1) | M). For every symmetric culture we then have that βlMN (M) = 1 − P(There exists h ∈ K \{l} such that Ul(n) > U h (n) | (k + 1)1 −M). The latter expression is equivalent to 1 −γlMX((k + 1)1 −M). (3) Given M, γlMN (M) is the probability that alternative l is not the worst max- imin alternative. That is, γlMN (M) = 1 − P(U l (1) < U h (1) for all h ∈ K \ {l} | M). Equivalently, γlMN (M) = P(There exists h ∈ K \ {l} such that U l (1) > U h (1) | M). For every symmetric culture we then have that γlMN (M) = P(There exists h ∈ K \ {l} such that Ul(n) < U h (n) | (k + 1)1 − M). The latter expression is equiva- lent to 1−P(Ul(n) > U h (n) for all h ∈ K\{l} | (k+1)1−M) = 1−β l MX((k+1)1−M).� 23 Appendix B. Computational Analysis10 In this section we provide the technical details of the computational analysis, and report some further results. We study societies of size n×k, with n×k ∈{2, 3, 5, 10, 100}×{3, 4, 5, 7}, and three different cultures. First, we consider societies where the utility values of the individu- als are drawn independently from a uniform distribution on the interval [0, 1]. Second, we consider the standard normal distribution in the interval (−∞,∞). Finally, to study societies with cultures having asymmetric density functions, we study the case where the utility values are drawn independently from an exponential distribution with λ = 1. For every single size of society and culture, we independently draw 3, 841, 600 car- dinal societies. Then, for every combination of size of society and culture, we check the performance of a set of scoring rules across all the 3, 841, 600 simulated cardinal societies. The set of scoring rules is defined as follows. We randomly generate 47 scoring rules by independently drawing values from a uniform distribution on the in- terval [0, 1]. Apart from this 47 randomly-generated scoring rules, our analysis always includes the three most prominent ones: plurality, Borda, and negative. Finally, for the case of the analysis of utilitarianism, we also include the optimal scoring rules as predicted in Theorem 3.1. Since the β and γ indices measure probabilities of success, we use interval estimation methods for binomial distributions. Our sample size provides a confidence interval of length .001 around the value of the corresponding index,11 assuming that the variance of the value of the index is the highest possible for a binomial distribution (i.e., .25). This is a conservative method to compare significant differences across scoring rules.12 For the α−index, we estimate both the value of the index and its variance in order to construct confidence intervals that depend on the estimated variance.13 The simulations complement the theoretical results obtained in the text by studying the following cases: • Utilitarianism: βUT for the uniform, normal and exponential distributions, and γUT for the exponential distribution. 10We are grateful to the Advanced Computing Center for Research and Education at Vanderbilt University for providing the necessary computing resources. 11To determine that the difference between two values is significantly different than zero, this method provides a confidence interval of length .001 × 21/2 for such difference. 12The use of this method might provide unnecessarily wide intervals; however, it allows us to find significant differences across scoring rules without having to estimate their covariance. 13Given our sample size, with the exponential distribution and the normal distribution the length of these intervals varies between .002 and .004 for the case of maximax and between .0002 and .002 for the case of maximin. With the uniform distribution, the length of the interval varies between .00001 and .0005. Note that the differences across distributions are due to their different ranges. 24 • Maximax: αMX for the uniform (with k > 3), normal and exponential distri- butions, and γMX for the exponential distribution. • Maximin: βMN for the uniform, normal and exponential distributions, αMN for the exponential distribution, and γMN for the exponential distribution. Table 1 reports the βUT and γUT values of the optimal scoring rules according to Theorem 3.1. Moreover, for the sake of comparison, the table also includes the βUT and γUT -values that the three most prominent scoring rules, plurality, Borda and neg- ative, attain in the simulations. Accordingly, Tables 2 and 3 report the corresponding values attained by plurality, Borda and negative. As shown in Tables 1, 2 and 3, for each of the three ideals of justice, each probability distributions, and each performance index, the scoring rule that provides the highest value is generally the one predicted in the theoretical results presented in the text. This means that the scoring rule determined by Theorem 3.1 is the best in the case of utilitarianism, plurality is the best in the case of maximax, and negative is the best in the case of maximin, across probability distributions. There are only some exceptions for small society sizes, in which the frequency of ties in the number of points sometimes causes distortions. More specifically, for utilitarianism the scoring rule predicted in Theorem 3.1 pro- vides a higher value than not only plurality and negative (and Borda, when Borda is not the S∗) but also than the best randomly-generated scoring rule. In addition, we find that S∗ cannot be rejected as the best-performing scoring rule.14 For maximax, plurality has a significantly higher expected value and a significantly higher probability of not selecting the worst alternative than Borda and negative, as predicted. There are only a few exceptions for small societies, wherein the frequency of ties causes distortions. In addition, the best randomly-generated scoring rule is in a neighborhood of plurality. Moreover, as the size of the society increases (i.e., as the probability of ties decreases) the values of plurality and of the best randomly- generated scoring rule converge. In particular, for societies of 100 individuals we find that plurality is significantly better than the best randomly-generated scoring rule. For maximin, when the number of individuals is larger than the number of alter- natives, the results are analogous to the case of maximax. That is, negative has a significantly higher expected value, a significantly higher probability of selecting the best alternative, and a significantly higher probability of not selecting the worst alter- native than Borda and plurality. Furthermore, the best randomly-generated scoring rule is in a neighborhood around negative. In contrast, notice that for societies with n below or around k, it is likely than more that one alternative is not the worst for any of the individuals. In such cases, negative chooses randomly between these alternatives, which is not necessarily optimal and is the cause of some distortions. As the size of 14We find a few exceptions in small societies due to the frequency of ties. 25 the society increases, this effect vanishes. In particular, for societies of 100 individuals we find that negative is significantly better than the best randomly-generated scoring rule. 26 T a b l e 1 . U ti li ta ri a n is m : V a lu es o f th e β U T a n d γ U T o b ta in ed fr o m th e si m u la ti o n s a n a ly si s† β U T : γ U T : u n if o rm n o rm a l e x p o n e n ti a l e x p o n e n ti a l S o c ie ty S ∗ S P l S B d S N g S ∗ S P l S B d S N g S ∗ S P l S B d S N g S ∗ S P l S B d S N g 2 × 3 .7 4 2 0 4 .6 4 1 8 6 .7 3 9 2 8 .6 5 0 3 4 .7 3 4 1 6 .6 4 3 9 6 .7 3 4 1 6 .6 4 0 1 7 .7 1 3 1 3 .6 5 7 7 1 .6 9 4 5 0 .5 7 4 0 1 .9 5 3 8 2 .9 2 6 0 9 .9 4 4 4 9 .9 2 5 9 7 2 × 4 .7 4 2 0 9 .5 7 2 1 3 .7 4 2 0 9 .4 2 0 7 0 .7 3 5 6 2 .5 8 1 6 0 .7 2 6 9 1 .4 4 0 6 1 .6 9 1 5 3 .6 0 6 2 9 .6 5 9 9 0 .3 7 4 2 7 .9 8 9 2 8 .9 7 6 5 3 .9 8 9 6 0 .9 2 9 8 1 2 × 5 .7 4 7 6 1 .5 2 1 4 7 .7 4 7 6 1 .3 0 5 9 8 .7 3 5 5 2 .5 3 9 2 7 .7 2 0 6 5 .3 0 0 5 8 .6 7 6 3 7 .5 7 2 4 2 .6 3 4 7 3 .2 7 5 8 1 .9 9 7 8 3 .9 9 2 3 1 .9 9 8 3 2 .9 3 4 7 6 2 × 7 .7 6 0 5 3 .4 5 0 1 0 .7 6 0 5 3 .1 9 4 1 4 .7 3 2 4 3 .4 8 2 8 0 .7 1 2 7 8 .1 9 1 6 2 .6 5 9 0 2 .5 2 9 7 5 .6 0 1 2 2 .1 8 0 3 2 .9 9 9 8 1 .9 9 9 1 2 .9 9 9 9 7 .9 4 3 9 6 3 × 3 .7 7 3 7 1 .7 0 5 3 2 .7 7 3 7 1 .6 3 0 1 6 .7 6 6 8 4 .7 0 1 5 9 .7 6 6 8 4 .6 2 3 6 5 .7 2 9 6 9 .6 9 4 9 7 .7 2 0 3 7 .5 5 3 5 7 .9 4 8 6 1 .9 0 9 6 8 .9 4 9 7 8 .8 7 6 3 3 3 × 4 .7 5 3 3 2 .6 0 8 8 2 .7 5 3 3 2 .4 9 2 8 1 .7 4 5 1 8 .6 1 2 9 6 .7 4 1 9 9 .4 8 4 1 1 .6 9 0 1 6 .6 2 0 3 1 .6 7 1 1 2 .4 1 0 6 9 .9 8 7 0 5 .9 5 6 8 2 .9 8 6 9 3 .9 2 6 2 5 3 × 5 .7 4 7 9 8 .5 3 7 2 8 .7 4 7 9 8 .3 5 1 6 6 .7 3 6 5 0 .5 4 9 8 9 .7 3 0 2 6 .3 4 5 6 2 .6 6 8 9 6 .5 6 9 1 9 .6 3 7 6 1 .2 9 8 6 1 .9 9 6 5 8 .9 7 8 8 3 .9 9 6 6 6 .9 3 0 3 7 3 × 7 .7 5 0 3 1 .4 3 9 0 0 .7 5 0 3 1 .2 1 7 6 8 .7 2 9 5 3 .4 6 7 8 2 .7 1 8 0 5 .2 1 4 1 9 .6 4 4 4 3 .5 0 1 0 2 .5 9 0 1 8 .1 9 1 5 5 .9 9 9 6 8 .9 9 4 6 9 .9 9 9 7 6 .9 3 9 4 4 5 × 3 .7 6 1 1 9 .6 7 9 7 7 .7 6 1 1 9 .6 4 6 6 5 .7 4 9 8 8 .6 7 3 6 0 .7 4 9 8 8 .6 3 7 3 8 .6 9 9 3 4 .6 6 3 9 6 .6 9 0 1 4 .5 5 8 9 9 .9 3 7 7 1 .9 1 1 1 1 .9 3 6 8 2 .8 7 8 7 8 5 × 4 .7 4 5 5 5 .6 0 3 3 3 .7 4 5 5 5 .5 1 5 9 4 .7 3 2 4 4 .6 0 5 6 9 .7 2 9 1 2 .5 0 9 4 1 .6 6 6 8 6 .6 1 6 3 0 .6 4 4 2 0 .4 2 1 6 3 .9 8 2 2 3 .9 6 8 9 0 .9 8 1 7 0 .9 0 9 1 9 5 × 5 .7 4 1 8 6 .5 4 3 3 8 .7 4 1 8 6 .4 1 9 2 9 .7 2 5 3 9 .5 5 6 3 0 .7 1 9 7 7 .4 1 5 0 1 .6 4 8 2 1 .5 8 2 9 2 .6 1 3 6 1 .3 3 2 6 5 .9 9 4 6 1 .9 8 2 8 7 .9 9 4 4 5 .9 3 1 5 9 5 × 7 .7 4 5 2 3 .4 5 0 5 6 .7 4 5 2 3 .2 5 8 4 6 .7 2 0 1 8 .4 8 1 1 8 .7 1 0 7 0 .2 5 6 1 8 .6 2 6 7 8 .5 2 8 1 3 .5 7 1 0 2 .2 1 1 4 7 .9 9 9 4 5 .9 9 1 4 9 .9 9 9 4 7 .9 4 2 0 2 1 0 × 3 .7 5 8 3 6 .6 8 5 9 3 .7 5 8 3 6 .6 4 7 4 9 .7 4 4 1 6 .6 7 7 4 1 .7 4 4 1 6 .6 3 7 9 5 .6 8 7 7 3 .6 7 7 2 3 .6 6 5 2 1 .5 5 6 2 2 .9 3 1 2 3 .9 1 5 9 4 .9 2 8 6 0 .8 6 5 1 7 1 0 × 4 .7 4 4 5 1 .5 9 4 4 5 .7 4 4 5 1 .5 3 4 4 8 .7 2 7 4 2 .5 9 3 5 9 .7 2 4 8 0 .5 2 8 9 3 .6 5 4 3 4 .6 0 3 4 5 .6 3 2 7 0 .4 3 2 4 1 .9 7 9 0 3 .9 5 9 9 0 .9 7 7 1 9 .9 0 6 4 8 1 0 × 5 .7 4 0 4 2 .5 2 7 1 8 .7 4 0 4 2 .4 4 8 0 9 .7 1 8 7 7 .5 3 5 9 5 .7 1 4 7 1 .4 4 6 4 5 .6 3 5 6 7 .5 6 4 1 6 .6 0 2 6 8 .3 4 8 4 4 .9 9 3 3 0 .9 8 0 5 8 .9 9 2 1 3 .9 2 7 6 6 1 0 × 7 .7 4 2 7 6 .4 3 0 1 1 .7 4 2 7 6 .3 2 4 4 2 .7 1 5 1 2 .4 5 4 8 6 .7 0 7 4 6 .3 2 8 2 7 .6 1 6 7 2 .5 0 6 3 5 .5 6 2 7 9 .2 4 3 6 2 .9 9 9 2 5 .9 9 1 8 2 .9 9 9 0 0 .9 4 6 9 4 1 0 0 × 3 .7 5 8 5 1 .6 7 5 8 5 .7 5 8 5 1 .6 6 5 5 5 .7 4 1 2 9 .6 6 4 8 0 .7 4 1 2 9 .6 5 4 2 4 .6 8 0 8 4 .6 5 5 7 5 .6 7 1 9 0 .5 6 8 6 1 .9 2 3 5 6 .9 0 8 9 9 .9 1 9 7 5 .8 6 1 8 1 1 0 0 × 4 .7 4 4 4 6 .5 8 0 2 8 .7 4 4 4 6 .5 6 4 1 2 .7 2 2 5 0 .5 7 6 8 5 .7 2 1 4 9 .5 5 7 4 7 .6 4 8 1 5 .5 9 5 2 0 .6 2 7 6 0 .4 5 1 0 5 .9 7 4 5 4 .9 5 8 4 1 .9 7 0 5 6 .9 0 4 1 3 1 0 0 × 5 .7 3 9 4 9 .5 0 7 7 5 .7 3 9 4 9 .4 8 3 9 3 .7 1 4 2 2 .5 1 2 2 6 .7 1 1 7 4 .4 8 5 1 2 .6 3 1 7 6 .5 5 1 3 4 .6 0 0 4 4 .3 7 2 8 1 .9 9 1 1 3 .9 7 7 8 4 .9 8 8 3 5 .9 2 6 0 6 1 0 0 × 7 .7 4 1 7 0 .4 0 3 7 7 .7 4 1 7 0 .3 7 4 0 7 .7 1 0 8 2 .4 2 1 9 1 .7 0 4 8 7 .3 8 5 2 9 .6 1 7 6 3 .4 8 8 5 8 .5 6 5 5 8 .2 7 3 7 8 .9 9 8 8 3 .9 9 1 3 8 .9 9 7 8 0 .9 4 8 3 7 † S ∗ , S P l, S B d , S N g d en ot e th e op ti m al sc or in g ru le ac co rd in g to T h eo re m 3. 1, p lu ra li ty , B or d a, an d n eg at iv e, re sp ec ti ve ly . 27 T a b l e 2 . M a x im a x : V a lu es o f th e α M X a n d γ M X o b ta in ed fr o m th e si m u la ti o n s a n a ly si s† α M X : γ M X : u n if or m n or m al ex p on en ti al ex p on en ti al S oc ie ty S P l S B d S N g S P l S B d S N g S P l S B d S N g S P l S B d S N g 2 × 3 .7 99 97 .8 04 71 .7 64 20 1. 02 88 3 1. 01 67 5 .8 88 00 2. 08 28 5 2. 06 07 7 1. 87 43 6 .9 33 46 .9 44 51 .9 00 28 2 × 4 .8 33 37 .8 26 40 .7 43 31 1. 16 31 4 1. 12 77 7 .8 13 35 2. 28 31 1 2. 22 06 4 1. 77 46 5 .9 82 07 .9 89 53 .9 07 19 2 × 5 .8 57 18 .8 45 81 .7 29 62 1. 26 77 1 1. 20 77 0 .7 67 62 2. 44 95 9 2. 34 40 9 1. 71 64 1 .9 95 24 .9 98 32 .9 15 28 2 × 7 .8 88 89 .8 71 09 .7 12 71 1. 42 39 7 1. 32 05 4 .7 12 14 2. 71 86 4 2. 52 74 0 1. 65 12 7 .9 99 67 .9 99 97 .9 29 34 3 × 3 .8 50 06 .8 51 54 .8 14 45 1. 23 54 7 1. 23 68 4 1. 07 89 3 2. 39 92 0 2. 39 54 1 2. 14 75 9 .8 98 32 .9 15 57 .8 33 22 3 × 4 .8 69 58 .8 69 81 .8 09 95 1. 32 76 9 1. 31 99 6 1. 05 85 9 2. 55 33 2 2. 53 05 4 2. 11 49 5 .9 58 10 .9 69 97 .8 80 68 3 × 5 .8 84 37 .8 82 01 .7 98 62 1. 40 35 2 1. 37 86 9 1. 01 63 1 2. 68 50 1 2. 63 06 2 2. 05 35 9 .9 82 76 .9 88 74 .8 93 27 3 × 7 .9 05 83 .8 97 56 .7 85 28 1. 52 32 9 1. 45 87 7 .9 67 13 2. 90 20 5 2. 77 20 5 1. 98 59 2 .9 97 17 .9 98 21 .9 13 74 5 × 3 .8 94 72 .8 93 55 .8 72 89 1. 45 26 6 1. 44 32 0 1. 33 51 2 2. 76 75 5 2. 74 86 9 2. 55 78 2 .8 67 73 .8 68 21 .7 98 03 5 × 4 .9 10 48 .9 04 89 .8 68 42 1. 54 35 2 1. 50 62 9 1. 31 33 3 2. 93 55 6 2. 86 20 7 2. 52 19 2 .9 47 76 .9 39 03 .8 46 10 5 × 5 .9 20 99 .9 12 65 .8 65 32 1. 61 22 1 1. 55 16 2 1. 29 96 8 3. 06 74 3 2. 94 60 1 2. 49 86 1 .9 75 17 .9 69 49 .8 76 60 5 × 7 .9 34 00 .9 22 58 .8 57 10 1. 71 00 6 1. 61 47 0 1. 26 21 4 3. 26 58 9 3. 06 76 7 2. 43 87 9 .9 92 41 .9 91 18 .9 04 23 10 × 3 .9 38 16 .9 36 26 .9 26 09 1. 73 67 7 1. 72 05 6 1. 64 56 7 3. 31 84 7 3. 28 41 2 3. 13 25 5 .8 27 51 .8 16 54 .7 56 54 10 × 4 .9 45 17 .9 41 70 .9 24 62 1. 79 63 3 1. 76 39 5 1. 63 58 7 3. 44 23 7 3. 37 26 4 3. 11 43 5 .9 10 72 .8 97 93 .8 19 53 10 × 5 .9 50 76 .9 45 35 .9 23 26 1. 84 74 3 1. 79 45 0 1. 62 76 7 3. 55 18 1 3. 43 59 7 3. 09 80 3 .9 53 22 .9 38 46 .8 55 79 10 × 7 .9 58 21 .9 50 25 .9 21 27 1. 92 51 7 1. 83 80 6 1. 61 48 6 3. 72 42 2 3. 52 89 1 3. 07 48 5 .9 84 58 .9 74 15 .8 95 93 10 0 × 3 .9 91 43 .9 91 28 .9 90 80 2. 55 78 4 2. 55 16 2 2. 53 31 1 5. 32 86 4 5. 31 10 7 5. 25 78 2 .7 24 74 .7 17 85 .6 96 00 10 0 × 4 .9 91 89 .9 91 56 .9 90 74 2. 57 70 3 2. 56 31 9 2. 53 11 3 5. 38 29 5 5. 34 40 3 5. 25 49 5 .8 17 29 .8 04 22 .7 73 60 10 0 × 5 .9 92 28 .9 91 76 .9 90 71 2. 59 36 2 2. 57 11 2 2. 52 97 8 5. 43 00 6 5. 36 73 1 5. 25 03 0 .8 71 28 .8 54 21 .8 19 56 10 0 × 7 .9 92 88 .9 92 02 .9 90 63 2. 62 15 6 2. 58 31 9 2. 52 79 7 5. 51 00 8 5. 39 86 4 5. 24 39 2 .9 29 83 .9 08 51 .8 71 64 † S P l, S B d , S N g d en ot e p lu ra li ty , B or d a, an d n eg at iv e, re sp ec ti ve ly . 28 T a b l e 3 . M a x im in : V a lu es o f th e α M N , β M N a n d γ M N o b ta in ed fr o m th e si m u la ti o n s a n a ly si s† α M N : β M N : γ M N : e x p o n e n ti a l u n if o rm n o rm a l e x p o n e n ti a l e x p o n e n ti a l S o c ie ty S P l S B d S N g S P l S B d S N g S P l S B d S N g S P l S B d S N g S P l S B d S N g 2 × 3 .7 4 9 8 0 .8 2 7 5 8 .7 9 1 5 2 .6 1 6 9 5 7 3 9 4 6 .7 0 0 3 8 .6 1 6 9 7 .7 3 8 8 6 .6 9 9 6 3 .6 1 6 8 8 .7 3 9 3 4 .7 0 0 0 4 .8 3 3 3 3 .9 4 4 6 3 1 2 × 4 .7 9 9 7 9 .9 5 2 1 8 .7 2 4 6 2 .5 3 2 4 4 .7 3 3 9 6 .4 4 0 4 7 .5 3 2 2 5 .7 3 4 0 0 .4 4 0 6 1 .5 3 1 9 7 .7 3 4 0 7 .4 4 0 4 7 .8 7 4 6 9 .9 8 9 4 8 1 2 × 5 .8 3 3 0 9 1 .0 5 2 6 1 .6 8 3 3 0 .4 7 3 2 1 .7 3 2 0 0 .3 1 3 8 7 .4 7 3 2 2 .7 3 1 7 2 .3 1 3 6 3 .4 7 2 7 2 .7 3 1 7 8 .3 1 2 9 4 .8 9 9 9 1 .9 9 8 3 7 1 2 × 7 .8 7 5 1 8 1 .2 0 9 7 0 .6 3 3 7 5 .3 9 4 6 7 .7 3 1 5 1 .1 9 5 2 6 .3 9 4 4 8 .7 3 1 4 8 .1 9 5 0 3 .3 9 4 7 6 .7 3 1 6 5 .1 9 5 5 2 .9 2 8 6 0 .9 9 9 9 7 1 3 × 3 .4 9 0 4 7 .5 2 8 5 6 .5 2 2 7 0 .5 7 9 2 3 .6 6 6 6 3 .6 6 5 8 1 .5 7 9 2 9 .6 6 6 3 3 .6 6 5 3 0 .5 7 8 8 3 .6 6 5 8 4 .6 6 4 9 4 .8 1 4 5 7 .8 8 3 9 7 .9 2 5 7 7 3 × 4 .5 0 7 5 6 .5 9 7 9 6 .5 3 9 9 2 .4 7 2 8 5 .6 4 0 1 7 .5 4 5 8 4 .4 7 3 1 5 .6 3 9 9 4 .5 4 5 7 7 .4 7 2 9 7 .6 4 0 1 9 .5 4 5 8 9 .8 5 4 2 0 .9 4 1 5 4 1 3 × 5 .5 1 5 5 2 .6 5 8 2 7 .5 0 3 9 3 .4 0 1 7 8 .6 3 0 2 2 .3 8 2 0 1 .4 0 1 1 3 .6 2 9 9 7 .3 8 1 6 5 .4 0 1 6 4 .6 3 0 2 2 .3 8 1 7 5 .8 8 0 0 4 .9 6 8 2 5 1 3 × 7 .5 2 0 4 8 .7 5 6 4 6 .4 5 9 7 8 .3 1 1 9 7 .6 2 3 7 2 .2 2 7 3 5 .3 1 2 1 1 .6 2 3 8 5 .2 2 7 1 8 .3 1 1 9 3 .6 2 3 6 8 .2 2 7 5 3 .9 1 1 5 3 .9 8 9 0 5 1 5 × 3 .2 7 2 0 5 .2 9 8 7 2 .3 0 3 1 2 .5 0 2 4 3 .5 8 7 5 3 .6 0 9 9 0 .5 0 2 4 9 .5 8 8 3 1 .6 1 0 3 1 .5 0 2 6 9 .5 8 8 1 5 .6 1 0 2 9 .7 7 7 5 0 .8 4 1 5 3 .8 7 6 6 3 5 × 4 .2 7 8 7 2 .3 3 3 4 1 .3 3 4 4 0 .4 0 3 8 2 .5 4 8 0 2 .5 6 2 9 6 .4 0 3 7 5 .5 4 7 7 4 .5 6 2 7 6 .4 0 3 7 4 .5 4 7 4 9 .5 6 2 5 5 .8 3 1 6 4 .9 0 6 3 7 .9 5 3 3 2 5 × 5 .2 8 1 7 2 .3 6 3 1 3 .3 4 4 5 2 .3 3 8 8 3 .5 2 5 7 5 .4 8 8 7 3 .3 3 9 4 1 .5 2 6 0 0 .4 8 8 2 9 .3 3 8 7 6 .5 2 5 6 9 .4 8 8 4 4 .8 6 4 1 9 .9 3 8 4 7 .9 9 2 2 9 5 × 7 .2 8 1 8 8 .4 1 0 8 0 .3 1 5 1 9 .2 5 8 3 1 .5 0 2 8 9 .2 9 7 6 5 .2 5 8 0 0 .5 0 2 9 4 .2 9 7 9 1 .2 5 8 4 5 .5 0 2 9 8 .2 9 7 7 0 .9 0 0 8 5 .9 6 7 6 9 1 1 0 × 3 .1 2 5 8 3 .1 3 7 8 1 .1 4 1 0 0 .4 4 5 9 7 .5 1 0 9 2 .5 3 2 9 6 .4 4 6 3 6 .5 1 1 1 2 .5 3 3 1 0 .4 4 5 9 2 .5 1 1 1 2 .5 3 3 0 8 .7 4 5 9 6 .7 9 3 6 1 .8 1 4 5 4 1 0 × 4 .1 2 6 2 3 .1 5 0 5 8 .1 5 7 8 8 .3 4 6 4 1 .4 5 5 5 0 .4 9 8 7 5 .3 4 6 5 7 .4 5 5 5 4 .4 9 8 6 8 .3 4 6 6 2 .4 5 5 1 4 .4 9 8 2 3 .8 0 6 4 3 .8 6 5 2 2 .9 0 0 1 2 1 0 × 5 .1 2 5 9 3 .1 6 0 9 4 .1 7 1 7 3 .2 8 4 7 4 .4 2 1 8 9 .4 7 6 9 4 .2 8 4 9 9 .4 2 2 2 9 .4 7 6 8 0 .2 8 4 7 4 .4 2 1 7 4 .4 7 6 5 9 .8 4 4 0 4 .9 0 3 3 2 .9 4 6 5 4 1 0 × 7 .1 2 5 1 5 .1 7 7 9 6 .1 8 6 7 1 .2 1 1 1 4 .3 8 3 2 3 .4 1 7 0 7 .2 1 0 7 1 .3 8 3 0 3 .4 1 7 5 8 .2 1 1 1 0 .3 8 3 4 2 .4 1 6 4 6 .8 8 6 7 3 .9 4 1 4 2 .9 8 9 6 2 1 0 0 × 3 .0 1 0 7 6 .0 1 1 2 9 .0 1 1 4 8 .3 6 4 8 2 .3 8 7 6 8 .3 9 6 2 3 .3 6 4 7 9 .3 8 7 2 2 .3 9 6 1 4 .3 6 5 8 0 .3 8 8 2 6 .3 9 6 8 8 .6 9 1 1 3 .7 0 8 3 4 .7 1 4 9 9 1 0 0 × 4 .0 1 0 7 3 .0 1 1 6 6 .0 1 2 1 6 .2 7 6 3 5 .3 1 0 9 2 .3 2 9 6 8 .2 7 5 8 7 .3 1 0 1 4 .3 2 9 3 1 .2 7 6 1 9 .3 1 0 1 5 .3 2 9 4 1 .7 6 7 5 9 .7 8 8 6 9 .8 0 0 1 6 1 0 0 × 5 .0 1 0 7 1 .0 1 1 9 5 .0 1 2 7 8 .2 2 2 1 3 .2 6 3 0 7 .2 9 2 2 1 .2 2 2 3 1 .2 6 3 3 5 .2 9 2 3 2 .2 2 2 7 4 .2 6 3 3 2 .2 9 2 3 1 .8 1 3 2 1 .8 3 5 6 7 .8 5 0 6 5 1 0 0 × 7 .0 1 0 6 4 .0 1 2 3 7 .0 1 3 9 9 .1 6 0 0 4 .2 0 7 6 6 .2 5 5 0 7 .1 6 0 2 9 .2 0 7 9 0 .2 5 5 7 7 .1 5 9 9 3 .2 0 7 7 5 .2 5 5 4 3 .8 6 6 0 5 .8 8 7 1 7 .9 0 5 9 2 † S P l, S B d , S N g d en ot e p lu ra li ty , B or d a, an d n eg at iv e, re sp ec ti ve ly . 29 References [1] Balakrishnan, N. and K.S. Sultan (1998), “Recurrence Relations and Identities for Moments of Order Statistics,” in N. Balakrishnan and C.R. Rao (eds.) Handbook of Statistics 16, North- Holland. [2] Barbera, S. and M. Jackson (2004), “Choosing How to Choose: Self-Stable Majority Rules and Constitutions,” Quarterly Journal of Economics, 119:1011-1048. [3] Barbera, S. and M. Jackson (2006), “On the Weights of Nations: Assigning Voting Weights in a Heterogeneous Union,” Journal of Political Economy, 114:317-339. [4] Barnett, V.D. (1966), “Order Statistics Estimators of the Location of the Cauchy Distribution,” Journal of the American Statistical Association, 61:1205-1218. [5] Benoit, J.P. and L.A. Kornhauser (2007), “Only a Dictatorship is Efficient or Neutral,” mimeo, LBS. [6] Börgers, T. and P. Postl (2007), “Efficient Compromising,” mimeo, University of Michigan. [7] Black, D. (1958), The Theory of Committees and Elections. Cambridge: Cambridge University Press. [8] Brams, S.J. and P.C. Fishburn (1978), “Approval Voting,” American Political Science Review, 72:831-847. [9] Bordley, R.F. (1983), “A Pragmatic Method for Evaluating Election Schemes through Simula- tion,” American Political Science Review, 77:123-141. [10] Caplin, A. and B. Nalebuff (1988), “On 64%-Majority Rule,” Econometrica, 56:787-814. [11] Dasgupta, P and E. Maskin (2008), “On the Robustness of Majority Rule,” Journal of the European Economic Association, forthcoming. [12] DeMeyer, F. and C.R. Plott (1970), “The Probability of a Cyclical Majority,” Econometrica, 38:345-354. [13] Gehrlein, W.V. (1997), “Condorcet’s Paradox and the Condorcet Efficiency of Voting Rules,” Mathematica Japonica, 45: 173-199. [14] Kamps, U. (1991), “A General Recurrence Relation for Moments of Order Statistics in a Class of Probability Distributions and Characterizations,” Metrika, 38:215-225. [15] Kamps, U. (1992), “Identities for the Difference of Moments of Successive Order Statistics and Record Values,” Metron, 50:179-187. [16] Levin, J. and B. Nalebuff (1995), “An Introduction to Vote-Counting Schemes,” Journal of Economic Perspectives, 9:3-26. [17] Maggi, G. and M. Morelli (2006), “Self-Enforcing Voting in International Organizations,” Amer- ican Economic Review, Vol. 96-4:1137-58. [18] Merrill, S. (1984), “A Comparison of Efficiency of Multicandidate Electoral Systems,” American Journal of Political Science, 28:23-48. [19] Myerson, R. (2002),“Comparison of Scoring Rules in Poisson Voting Games,” Journal of Eco- nomic Theory, 103:219-251. [20] Nurmi, H. (1983), “Voting Procedures: A Summary Analysis,” British Journal of Political Science, 13:181-208. [21] Rae, D. (1969), “Decision Rules and Individual Values in Constitutional Choice,” American Political Science Review, 63:40-56. [22] Saari, D.G. (1999), “Explaining All Three-Alternative Voting Outcomes,” Journal of Economic Theory, 87:313-355. 30 [23] Teichroew, D. (1956), “Tables of Expected Values of Order Statistics and Products of Or- der Statistics for Samples of Size Twenty and Less from the Normal Distribution,” Annals of Mathematical Statistics, 27:410-426. [24] Weber, R.J, (1978), “Comparison of Voting Systems,” mimeo, Cowles Foundation. 
work_lsyeyzdbr5hk5ook2zv4e24f6y	----	WPS 8-2014 Politicising Europe's Justice Deficit - Wilkinson - Final This paper can be downloaded without charge from LSE Law, Society and Economy Working Papers at: www.lse.ac.uk/collections/law/wps/wps.htm and the Social Sciences Research Network electronic library at: http://ssrn.com/abstract=2379043. © Michael A. Wilkinson. Users may download and/or print one copy to facilitate their private study or for non-commercial research. Users may not engage in further distribution of this material or use it for any profit-making activities or any other form of commercial gain. Politicising Europe’s Justice Deficit: Some Preliminaries Michael A. Wilkinson LSE Law, Society and Economy Working Papers 8/2014 London School of Economics and Political Science Law Department Politicising Europe’s Justice Deficit: Some Preliminaries Michael A. Wilkinson * Abstract: Normative political theory is divided on whether questions of distributive justice properly extend beyond the state. From a functionalist perspective, however, justice reflects a balance of material forces, subject to the logics of ‘market’ and ‘social’ justice, or ‘capitalism’ and ‘democracy’. The justice ‘deficit’ is the imbalance or disequilibrium in these logics, an imbalance which the constitution of the post-war European state stabilises through their constraint. European integration, initially an important feature of this post-war settlement, now increasingly comes to be viewed as a significant threat to it. Whereas market logic and capital have been rapidly supra-nationalised, social-democratic logic has struggled to transcend the state, the EU, in particular, lacking the channels of contestation to legitimise redistribution. This leads to an imbalance in the forces of capitalism and democracy, a justice ‘deficit’, which destabilises national as well as supranational institutions, but also leads to questions being asked of what Germans owe Greeks, or vice versa. The justice deficit and reaction to it now appear to be threatening core features of state sovereignty. But it also suggests that the logic of the state – and the question: to whom are obligations owed? – must itself be subject to contestation; the dilemma of market and social justice, or capitalism and democracy, must be replaced with a trilemma, of market, social and democratic justice. * Associate Professor of Law, London School of Economics and Political Science. I would like to thank, with more than the usual disclaimer, Floris de Witte, Samuel Tschorne, Alexander Somek, Hans Lindahl and Jacco Bomhoff for comments on an earlier draft. A revised version of this paper will appear in D. Kochenov, A. Williams and G. De Burca (eds) Europe’s Justice Deficit? (Hart, 2014, forthcoming). I would like to thank the editors for their invitation, patience and encouragement. 8/2014 2 Today owners of financial capital are working with international organisations and debt-ridden national states to insulate once and for all the economic economy from the moral economy of traditional social obligations and modern citizenship rights – and with greater prospect of success than ever in the four decades since the 1970’s. As democratic states are being turned into collection agencies on behalf of a new global haute finance, market justice is about to prevail over social justice, for a long if not an indefinite period of time. In the process those who have placed their confidence as citizens in capitalist democracy must concede precedence to those who have as investors placed their money on it. [Wolfgang Streeck, ‘How to Study Contemporary Capitalism’ (2012) 53 European Journal of Sociology 15-16.] INTRODUCTION Europe is awash with deficits. In addition to the various economic deficits engulfing the Eurozone (and elsewhere), the EU has been said to suffer a democratic deficit, a political deficit and a social deficit, each of which predates the financial and subsequent sovereign debt crises beginning in 2007.1 None of this is new to the seasoned observer of the EU. Only now, however, is discussion turning to its ‘justice deficit’. Not merely pointing to the aggregate of these other deficits, accusation of a justice deficit suggests something more fundamentally rotten at the heart of the project. Justice, after all, is the sovereign virtue.2 Even if it is curious that the measurement of this virtue is now expressed in the language of economics – a justice ‘deficit’ – the very measure of the EU in terms of its justice, or rather, injustice – which is where the accusation points – suggests that a threshold has been crossed. After all, dominant strands in the analytical tradition of normative political theory have not infrequently resisted or outright rejected its applicability to domains beyond the nation-state – including the nascent EU polity – due to the absence there of the relevant political community.3 Other commentators continue to justify the political, democratic and 1 On the democratic deficit, see S. Hix and A. Follesdal, ‘Why there is a Democratic Deficit in the EU: A Response to Majone and Moravscik’ (2006) 44 Journal of Common Market Studies 533; on the political deficit, see R. Dehousse, ‘Constitutional Reform in the EC’ in Hayward (ed.) The Crisis of Representation in Europe (Abingdon, Frank Cass, 1995); on the social deficit, see C. Joerges and F. Roedl ‘Informal Politics, Formalised Law and the Social Deficit of the European Union’ (2009) 1 European Law Journal 1-19. 2 Analysis of Europe’s justice deficit could proceed by investigating the treatment of refugees and asylum seekers, allegations of complicity in torture and processes of extraordinary rendition, collusion in wars and occupation of dubious legality, mass surveillance programs and other threats to civil liberties. None of this will be dealt with here. 3 See e.g. T. Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 3 social deficits beyond the state or to deny them normative significance in the first place.4 The purpose here is not to engage directly in debates over the correct theory of the reach and scope of justice claims, over the respective merits of libertarianism and egalitarianism or over the precise limits of the polity within which one may properly speak of justice or injustice. It is rather to consider the way that European integration is altering – whether by exposing, concealing or constraining – the politics of justice; in particular, the way integration is destabilising the national frame but not (yet) offering up an alternative platform for subjecting transnational justice claims to democratic contestation. There is a reason for taking an explanatory rather than a normative approach. Whatever normative theory of social justice we happen to endorse (including its wholesale rejection),5 the distribution of individual, collective and common goods will in practice, in any really existing society, be determined, at least in part, by political and social struggles for equality. This means not only over the economists’ ‘scarce resources’ but also over public goods such as education and health and non-material goods such as solidarity, recognition and representation.6 Since in democratic society ideological superiority will – in theory at least – always be up for grabs, arguments of principle in favour of or against redistribution, recognition and representation will merely be another factor in the fight over and for such goods. Wolfgang Streeck has recently modelled struggles over distribution on the tension or ‘dynamic disequilibrium’ between capitalism and democracy, where they are understood not as organised competitions for the accumulation of money or votes but as representing two principles or logics of resource allocation - market justice and social justice. This enables us to conceptualise a justice deficit as the result of an imbalance in these two logics. And, in Streeck’s account, imbalance will tend towards crisis, provoking a reaction of sorts to remedy the imbalance or at least prevent it from becoming critical for the society (section 1).7 But in what context is this relationship played out? The contest between market and social justice does not occur in a vacuum. Historically, it is the state that sets the framework for the negotiation and recalibration of the relationship between market and social justice, through institutional and ideological, coercive as well as consensual means (section 2). 4 See e.g. J. Neyer, ‘Justice, Not Democracy: Legitimacy in the European Union’ (2010) 48 Journal of Common Market Studies 903. 5 On the rejection of patterned theories of justice, see R. Nozick, Anarchy, State, Utopia (New York, Basic Books, 1974). 6 Only in part because in practice levels of inequality will depend not only on the basic structure of the state, and its reception to political and social struggles, but also on what has been called the principle of community, the extent to which questions of distributive justice arise for persons in their daily lives. See e.g. G. Cohen, ‘Back to Socialist Basics’ (1994) New Left Review 3. 7 See W. Streeck, ‘Taking Capitalism Seriously: Towards an Intuitionalist Approach to Contemporary Political Economy’ (2011) 9 Socio-Economic Review 137; W. Streeck, ‘How to Study Contemporary Capitalism?’ (2012) 53 European Journal of Sociology 1; W. Streeck, ‘The Crises of Democratic Capitalism’ (2011) 71 New Left Review 5; W. Streeck, ‘Markets and Peoples’ (2012) 73 New Left Review 63. 8/2014 4 In recent historical perspective, the political constitution of the post-war state has been conceived as aiming to prevent or forestall crisis by constraining the logics of democracy and of capitalism.8 On this account, the process of European integration is a significant feature of the post-war settlement – designed to prevent majoritarian democratic excesses but without surrendering the state’s ability to constrain the logic of capitalism (section 3).9 But European integration is now exposing the fragility and dysfunctionality of this settlement. With the apparent boundlessness of markets and extension of market logic, but with democracy struggling to transcend state borders, the structural asymmetry in Europe is now proving destructive, not only of the supranational constitution but also of national constitutional settlements. We can conceptualise the EU’s ‘justice deficit’ as representing this imbalance in favour of capitalism and market justice, where, in the absence of a European democratic or social movement, any rebalancing is to come from the executive power of the member states, or rather from certain among them (section 4). And yet, whatever the prospects of supra- or trans- national democracy, Europe’s justice deficit is de-politicised with market logic presented in naturalistic terms, making it appear necessary and inevitable, an expression of inescapable pressures to modernise and gain competitiveness. It will be argued that pre- requisite to dealing with the justice deficit is its politicisation. But this may come at a high cost in terms of the stability and unity of the project of integration, and is (therefore) unlikely to come from the top-down, from the political and economic elites who have driven the project since its inception (section 5). I will suggest in the concluding section (6), drawing on the recent work of Nancy Fraser, that ‘the state’ – understood as the framing of relevant boundaries – must itself be politicised, subject to contestation and struggles of recognition and representation. The challenge, it is argued, is to substitute Streeck’s dilemma for a trilemma, of market justice, social justice and democratic justice. The purpose of this paper is not to proffer institutional responses to this trilemma, nor even to specify its social and political conditions; it is to explore some preliminaries for a fuller understanding of the politics of Europe’s justice deficit. 1. CONCEPTUALISING A JUSTICE DEFICIT A justice deficit can be explained functionally as the result of an imbalance between the logic and forces of capitalism on the one hand and those of 8 I draw here on the work of Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth Century Europe (Yale University Press, 2011). 9 Chris Bickerton’s argument that the post-war logic fundamentally changes in the neo-liberal period beginning in the 1970’s will also be drawn upon, see C. Bickerton, European Integration: From Nation-States to Member States (Oxford, OUP, 2012). Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 5 democracy on the other. A social justice deficit would then exist where the former gains an upper hand over the latter. A compelling account of this imbalance – or ‘dynamic disequilibrium’ – between democracy and capitalism has recently been presented by Wolfgang Streeck.10 He argues that the relationship between capitalism and democracy will tend towards a critical imbalance as capital tends to dominate, and to such an extent that democracy itself will be threatened, as revealed most dramatically in Europe since the recent financial crises. In Streeck’s account, capitalism and democracy, or ‘markets’ and ‘peoples’ represent rivalling constituencies, with contrasting ‘logics of action’, which we can label as ‘market justice’ and ‘social justice’ respectively.11 In terms of societal values, these suggest two different principles of resource allocation: one operating according to marginal productivity, and merit on a ‘free play of market forces’ and the other based on social need, and ‘certified by the collective choices of democratic politics’.12 This reflects a clash in the respective ethical demands of the two major forces in the modern democratic capitalist state, rather than merely a functional clash of interests between money and votes. If the market imposes a marginal ethics (by advancing the prospect and expectation of rational egoism and competitive accumulation without limits), democratic society promises a maximal ethics (by holding out the prospect of and need for solidarity, collaboration and concern for human well-being).13 By rejecting the standard contrast between an amoral market system and moral obligations of solidarity, persons and political communities are in this account instead torn between obligations on either side of the justice balance, obligations that although distinct are not incommensurable. On the one hand, market imperatives present individuals and communities with the duty to adopt and adjust to economic change, to accumulate wealth, to be entrepreneurial in spirit, competitive, and, above all, efficient. On the other hand, democracy calls forth solidarity, the collective obligation to protect weaker individuals from the fallout of capitalist excesses and to prevent or attenuate the ‘creative destruction’ that is central to liberal progress or ‘modernisation’; debate then occurs ‘over the moral limits, if any, to the pursuit of economic advantage’14 where that pursuit and its limits are themselves understood as normative forces. The paradox is that the market ethos of a capitalist political economy is, for reasons of systemic survival, parasitic upon the moral obligations imposed by social democratic norms.15 By tempering and correcting capitalist excess, these prevent disequilibrium from turning into outright societal collapse. 10 See note 7 above. 11 A. Schäfer and W. Streeck ‘Introduction’ in A. Schäfer and W. Streeck (eds.), Politics in the Age of Austerity (Cambridge, Polity, 2013) 19. 12 Streeck, ‘Crisis of Democratic Capitalism’, note 7 above, 7. 13 Streeck, ‘Taking Capitalism Seriously’, note 7 above, 137. 14 Streeck, ‘How to Study Contemporary Capitalism?’, note 7 above, 23. 15 Id. But, Streeck notes, ‘only in a functionalist worldview’ is the success of efforts at taming capitalist excesses actually ‘guaranteed’, note 7 above, 156. 8/2014 6 There is therefore an interdependence rather than straightforward conflict between the two principles of resource allocation. But this is not a happy or stable relationship. As Streeck concludes, capitalism not only necessitates a continual demand for moral and social support in order for the system to stay afloat, but it is also always undermining that very same support because of its own internal logic. Because of this pathological tendency, capitalism is an inherently ‘self-destructive social formation’.16 Democratic capitalism is then conceivable ‘as a political economy in permanent disequilibrium’, pushed forward inexorably by continuous innovation on the part of capital and ‘pervasive political conflict over the relationship between social and economic justice’. Disequilibrium will periodically lead to crisis, not least because of the inability of capital to think beyond its own short-term interests; even the environmental conditions of our survival are reducible to a mere ‘externality’. With this relationship in view, capitalism is systematically reconfigured, because profits and losses – as well as resultant gulfs in socio-economic equality among persons – are exposed as non-naturalistic, ‘the outcome of a struggle between conflicting concepts of and claims to justice […]’ rather than between an irrational moral code and an amoral but rational objective economic law.17 Rational and public choice philosophy then appear in a new light; rather than purely scientific, positivistic theories that remain above the political fray, they can be seen as performative and ideological, imposing a dominant market logic and narrow view of rationality on neighbouring disciplines and occluding alternative values. Self-interest is the only proper mode of rationality, and, eventually, ‘greed is good’. This subordination of discourses of legitimacy to a particular economic rationality is achieved through ‘naturalising’ the logic of the market. The technocratic dictates of economics then come to speak ‘with the pathos of natural law’, controlling and even colonising the political debates over justice and inequality.18 Economics is the method; the aim is the transformation of the soul.19 2. HISTORICISING A JUSTICE DEFICIT: THE ROLE OF THE STATE Although recent political philosophy in the social contract tradition investigates justice primarily as a normative question, seeking for a resolution or reflective 16 Streeck, ‘How to Study Contemporary Capitalism?’, note 7 above, 25. 17 Streeck, ‘How to Study Contemporary Capitalism?’, note 7 above, 16. 18 G. Teubner, Constitutional Fragments (Oxford, OUP, 2012) 32-34. For Teubner, the neo-natural law conception of economic rationality is nothing less than ‘grotesque’ because it substitutes causal explanation for normative legitimacy, bypasses political debate, and overlooks the potential instability of a constitution based on science that has to resolve controversies which cannot be scientifically resolved. 19 To misquote Margaret Thatcher. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 7 equilibrium, Streeck’s analysis exposes it as an irresolvable, practical, political problem. This becomes even more apparent when attention is given to the unit within which the question of justice is properly raised, which is frequently, but often implicitly, assumed to be a state.20 And the standard reason given, if one is given at all, is that only within the state does the requisite unity of coercion and community exist, generating and sustaining the capacity to provide for basic collective goods.21 Although in some apparent degree of tension with each other, coercion and community are presented as complementary rather than in competition. Both are paradigmatic attributes of statehood. First, the capacity to dominate, the monopoly on legitimate violence, which in the Weberian tradition is the defining feature of the modern state and in liberal political theory key to understanding why its authority requires normative justification, is, at least formally, an exclusively sovereign power. To this must be added, second, the sense of being part of a collective endeavour or ‘community of fate’, necessary for sustaining a functioning public sphere and legitimising any non-trivial redistribution of benefits and burdens. This too is elusive once we move beyond the state’s borders. Only by combining these features in a contiguous manner, when a state not merely coerces but does so ‘in our name’ or for our collective benefit, are obligations to remedy injustice and duties of redistribution incurred, above the minimum moral duties of humanitarian intervention that might exist outside the state. We ought to be concerned with equality because, and when, we can and do value the reciprocity that it entails. The unity of coercion and community is therefore central to the modern state’s capacity to negotiate the tension between capitalism and democracy, market and social justice. Since beyond the state there is no (or at most – as in the case of the EU – only relatively ineffective) political apparatus that unites coercion and community, there can be no egalitarian duties of redistribution.22 But from a political perspective, this tension is not resolved in an original position or final determination of where the balance of justice rests; rather the state provides a more or less stable framework within which the ceaseless competition and interaction of interests and ideas might be negotiated relatively peacefully.23 In practice the state manages the tension between capitalism and 20 In Rawls’s later work, exploring the international basic order, the relevant unit is explicitly a ‘people’; see J. Rawls, Law of Peoples (Cambridge MA, Harvard University Press, 1999). 21 In Nagel’s ‘political conception’ it is coercion and co-authorship that combine as the relevant characteristics giving rise to obligations of justice within a state, against the cosmopolitan account, see note 3 above. Nagel’s position is not of course unchallenged, see e.g. A. Julius, ‘Nagel’s Atlas’ (2006) Philosophy and Public Affairs 176 - 192. And there are those in the Rawlsian tradition who have argued for a more cosmopolitan or global basic structure. 22 We may, however, have moral duties to create such authoritative institutions (and mechanisms of redistribution) in the first place. 23 I do not claim that the state is merely a neutral arbiter between these forces; it is undoubtedly more complex than that. Beyond some suggestive comments, this will not be the place to go into detail into the history and concept of the state and its role in the balance of justice. 8/2014 8 democracy in order to contain or forestall any crisis that might result from the imbalance in their relationship. From this perspective, coercion and community are also instrumental to the maintenance of stability in spite of, and even to legitimise existing and continuing, inequality. The idea of a community of fate, binding rulers and ruled, not only facilitates redistribution but also softens, if not eradicates, class conflict. It pacifies struggles over justice by appealing to a sense of communal identity, which is not merely left to grow spontaneously or organically, even if it could be nurtured in that way. This is periodically revived as a political project – however insincerely – with communitarian mottos such as that currently in vogue, ‘we are all in it together’, and ironically by those who only recently urged that ‘there is no such thing as society’. From a functional perspective, recall, resources of solidarity are a necessary complement to a market economy, to maintain or re-establish order either by rebalancing the justice disequilibrium or encouraging the population to tolerate, accept or at least acquiesce in the inequalities that the market permits, and even depends upon. In the absence of such resources of solidarity, politics will require more coercive mechanisms. There is, to be sure, nothing new in the perception that the tense and even antagonistic relationship between market and social justice, capitalism and democracy, has a significant political dimension. In an earlier period, Karl Polanyi argued that the destruction caused by the dis-embedding of the market in a liberal capitalist society would lead to a reaction, or ‘second movement’, of re-embedding through social policies and the re-regulation of markets.24 It is not only that as a matter of proper sociological understanding, the economy is embedded in society rather than the other way round; it is also that politically, since democracy poses a threat to the logic and interests of capital, the ruling class will attempt to curtail the economic goals of the majority, and by political and even constitutional means if necessary.25 The perception that capitalism and the individualist ethos of classical liberalism pose a serious threat to the robust ‘public’ on which democracy itself depends, as John Dewey argued in a different historical and political context, has a similarly vintage pedigree. Dewey of course thought that democracy must permeate all of society, becoming industrial and not merely civil and political; in order to allay the corrupting effects of capitalism and the inequalities it results in, a vibrant public is essential.26 24 K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston, Beacon Press, 2001). 25 ‘Inside and outside England, from Macaulay to Mises, from Spencer to Sumner,’ wrote Karl Polanyi in The Great Transformation, first published in 1944, ‘there was not a militant liberal who did not express his conviction that popular democracy was a danger to capitalism’. Ibid 234. 26 See e.g. J. Dewey, The Public and Its Problems (New York, Henry Holt, 1927). By focusing on the potential of science and experimentation, Dewey arguable neglected the politics necessary to contain capitalism, see M. Wilkinson, ‘Dewey’s Democracy without Politics: The Failures of Liberalism and Frustrations of Experimentalism’ (2012) Contemporary Pragmatism 117 - 142. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 9 And the framing of the justice deficit is political in a second and more basic sense that calls into question any statist assumptions. Although the ‘Keynesian- Westphalian’ co-evolution of a monopoly of legitimate violence and a community of fate is difficult to envisage beyond the state, it would be an error to think and act as if the state were therefore self-contained or insulated for the purposes of negotiating the tension between capitalism and democracy, market and social justice. Coercion, it must be remembered, can be and frequently is exercised between states and even through international institutions that lie over and above states. Both capitalism and democracy are linked to projects of state- and institution-building, both at home and abroad, most obviously in the guise of foreign and imperial adventures, however civilising their missions in the eyes of those who pursued them. Neither coercion nor community, in other words, is autonomous and independent from political action, internally or in external relations. The framework of assumptions that implied a hermetically sealed national container was of course long ago shattered historically by exposing the links between political freedom, capital accumulation, and imperialism. As Arendt powerfully argues in ‘The Origins of Totalitarianism’, political emancipation of the bourgeoisie in the late nineteenth century was prompted by their desire for economic expansion, which in turn necessitated expanding the territorial logics of power beyond the nation-state.27 In addition, the assumed role of the bourgeois state and state-sponsored ideology in protecting the security of the individual – determining its openness or closure towards immigration, fixing policies of asylum and assimilation, formulating citizenship tests as well as labour and welfare policies towards foreigners – demonstrates that the internal framework within which democracy and capital ‘slug it out’ is not fixed in regard to the outside world, but contingent on politics and political action. Restricting the domain of justice to relations within the state has the effect of legitimising the ‘de facto’ inequality that exists between states, as if any inequality beyond the state was apolitical, natural, or beyond the domain of human action. Just as it is a mistake, in other words, to see the state only as an enabler of social justice or as an impartial arbitrator of the balance between markets and peoples, it is also a mistake to view it as an arbitrary but necessarily neutralised pivot of the balance of justice. All of which is to say that the logics of market and social justice do not exist in a vacuum, and so to Streeck’s account must be added the political context of their interaction. As a glance at the historical record confirms, to the longevity of the functional disequilibrium must be added its evolution through distinct stages of economic and political development, including, particularly in the second half of the twentieth century in which the project of European integration is born, 27 H. Arendt, The Origins of Totalitarianism (Harcourt, (1951) 1968) 123 - 157. More recently it has also been argued that it is predominantly Western imperialism and intrusion into the Arab world, rather than religious fundamentalism that is the root cause of the alienation felt by Muslims in Europe today. See P. Anderson, ‘Portents of Eurabia’ The National, 2009. 8/2014 10 significant institutional and ideological elements which constrain the logics of capitalism and democracy, and in a way that is not captured by the bare categories of coercion and community. 3. HISTORICISING A JUSTICE DEFICIT: THE ROLE OF IDEOLOGY In the postwar period in Western Europe, as classical economic models based on notions of unfettered competition and free markets are replaced with those of late, or ‘organised’, capitalism based on intervention with market mechanisms, tolerance of oligopoly and the generation and sustenance of large public sectors, government intervention in recalibrating the relationship between democracy and capitalism comes to be taken for granted. This continues to be the case to this day, even if rhetorically and opportunistically dismissed or derided by the cheerleaders of neo-liberalism, which does not hesitate to embrace the authoritarian state apparatus if necessary. Whether to ensure the smooth functioning of a market economy, assuage the financial markets, or on more radical accounts, continue the process of accumulation through dispossession, ensuring the continuation of the inequalities on which capitalism depends, governmental interference on both sides of the justice balance is ubiquitous.28 But not only is the economy increasingly and explicitly entangled with institutions of political democracy and state bureaucracy; struggles over market and social justice also assume more complex political and ideological forms, in part due to the reaction to the series of crises that engulfed Europe and elsewhere in the first half of the twentieth century, in the forms of fascism and Soviet communism. Social, political and economic struggles in the post-war State are tempered by what has been called ‘constrained democracy’ and ‘constrained capitalism’, collective commitments – often of a constitutional nature - which encourage or impose limits on the democratic and capitalist logics, in order for the society to maintain stability and avoid the extremism that potentially occurs as society relapses – or appears to be in the process of relapsing – into crisis. 29 First, in Jan-Werner Müller’s narrative of post-war democracy in Europe, distrust of popular sovereignty and even parliamentary sovereignty was ubiquitous in the aftermath of World War II, with the goal of constraining democratic majorities uppermost in the minds of political and bureaucratic elites, to prevent backsliding into the authoritarian extremism that devastated Europe in the first 28 See further, M. Wilkinson, ‘The Spectre of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union’ (2013) German Law Journal 527 - 560. 29 See further, exploring the history in various national contexts, J-W. Müller, Contesting Democracy (Yale University Press, 2011). Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 11 half of the twentieth century.30 This distrust of politics, and fear of both Right and Left was manifested in concrete national institutions, with liberal constitutionalism and strong constitutional courts in particular developing across the region, most notably in the Federal Republic of Germany, but complemented with supranational institutions in the EU (or EEC as it then was) and the ECHR.31 Not only economically, but also institutionally, this was the hour of the ‘European rescue of the nation-state’, in Alan Milward’s well-known narrative.32 But second, there was also, from the beginning of the post-war period until at least the mid-1970’s and the dawn of the neo-liberal revolution, a Keynesian consensus on the need to protect society from the excesses of capitalism and market justice.33 As well as laying the foundations of the social security or ‘welfare state’, this involved a bargain or social contract between capital and labour, a post- war ‘class compromise’, obtained by a set of mediating institutions, which attempted to organise capitalism in such a way that would unite state and society.34 This strengthening of the bonds between state and society, and between business and labour, was complemented by a commitment to the collective pursuit of broader social goals, including economic development, technical innovation, full employment, regional income distribution, and national security.35 ‘Socialism’, according to Müller, ‘had been implemented from above to constrain capitalism’ or as Tony Judt puts it, to save it.36 Politically, it was the ‘moment of Christian Democracy’ and other elite-led and state-sponsored ideologies that pushed for the attainment and entrenchment of stability by curtailing political extremism and avoiding economic imbalances and excessive levels of socio-economic inequality.37 Constitutional and international commitments, internally and within the architecture of European legal regimes, increasingly ‘take things off the table’ for democratic contestation, at least if one wants to play within the rules. And of course the two dimensions of constraint – ideological and institutional – act most effectively in tandem in alleviating the perceived dangers of democratic and capitalist excesses. The project of European integration was considered a significant means to achieve this, internalising transnational externalities and softening the potential for 30 Ibid. And on the recent Euro crisis, see J-W. Müller, ‘Beyond Militant Democracy?’ 44 (2012) New Left Review 239. 31 Müller: ‘European integration – this is crucial – was part and parcel of the new ‘constitutionalist ethos’, with its inbuilt distrust of popular sovereignty and the delegation of tasks to agencies that remained under the close supervision of national governments’, ibid. 32 A. Milward, The European Rescue of the Nation-State (London, Routledge, 1992). 33 This was, Tony Judt, notes, an ‘unusually broad consensus’ on this, T. Judt, Ill Fares the Land (Penguin, 2010) 47. 34 See C. Bickerton, European Integration: From Nation-States to Member-States (Oxford University Press, 2012). 35 Ibid, 107. 36 Ibid, 47. 37 Müller describes Christian Democracy as ‘the most important ideological innovation of the post-war period, and one of the most significant of the European twentieth century as a whole’, in Contesting Democracy, above, note 29, at 130. The UK does not fit so neatly in this pattern; attaining relative stability and socio-economic equality in the postwar period but without constraining parliamentary supremacy. 8/2014 12 sovereign violence. Along with the economic benefits thought to accrue from reducing obstacles to trade through the creation of a common market, this was the most convincing rationale for the state’s voluntary ‘containment’ and surrender of ‘limited sovereign rights’.38 European integration initially was considered a key aspect of the postwar constitutional settlement, a central feature in the narrative of the survival of the democratic sovereign state through constraining its dominant logics. Unlikely to transcend the nation-state or represent its evolution into a federal state writ large, because of the difficulty – let alone questionable desirability – of up-scaling the required combination of coercion and community, the EU would instead be an additional bulwark against the dangers of political and economic excesses. The process was complemented from its early stages by a strong and proactive juridical project to create a transnational rule of law, based on subjective, and predominantly economic, rights. A glance at the subject matter of the foundational and even revolutionary case of Costa v. ENEL – often lost in the mist of the supremacy doctrine it gave birth to – is revealing: an Italian law that sought to nationalise electricity production and distribution, based on the disputed payment of a 1, 925 Italian lire bill.39 This ideological and institutional neutering of democratic and market logics was complemented by a ‘golden age’ of sustained economic growth, which facilitated the (temporary) satisfaction of the demands of both capital and labour, dramatically reducing levels of socio-economic inequality.40 The precise contribution made by European integration to the peace and prosperity of the ‘Trente Glorieuses’ is contested. What is not contested is that from the mid-70’s, coinciding with an end to easy economic growth, the ‘long downturn’, equilibrium between capitalism and democracy has become more difficult to maintain.41 38 For recent accounts of the argument from containment within EU free movement law and citizenship, see F. De Witte, ‘Sex, Drugs & EU Law: The Recognition of Ethical and Moral Diversity in Europe’ (2013, forthcoming) 50 Common Market Law Review and ‘Union Citizenship and Constrained Democracy’ in A.P. Van der Mei and M. De Visser (eds) Twenty Years Treaty on European Union: Reflections from Maastricht (Intersentia, 2013). 39 Case 6/64 Costa v ENEL [1964] ECR 585. The case was spearheaded by two members of the Italian bar actively pursuing the project of creating a European rule of law; see e.g. A. Vauchez, ‘The Transnational Politics of Judicialisation. Van Gend en Loos and the Making of EU Polity’ (2010) European Law Journal 1-28. 40 According to Bickerton: ‘The decades of prosperity were tied to a particular model of both state and society and a specific understanding of the relationship between politics and economics’, above note 34, at 93. 41 Financially, one solution was thought to be allowing high inflation, which can be seen as ‘an expression of anomie in a society which, for structural reasons, cannot agree on common criteria of social justice;’ a second then increasing credit: first government debt, then private credit, in both cases ‘pulling future resources into present consumption’. If this accumulation of private and public debt foregrounds the most recent financial crisis, one current response in the UK at least is, it appears, more of the same: another debt-fuelled and state-assisted housing bubble. See Streeck, ‘Crises of Democratic Capitalism’, above n 7, 23. So-called ‘privatised Keynesianism’, which is advanced as the immediate cause if not the ultimate root of the current economic crisis, is suggested by Streeck as a concession to the democratic pressures exerted by the people. This highlights an ambiguity in Streeck’s account. Historically ‘privatised Keynesianism’ was not, arguably, a response to democratic pressure but to capitalist pressure. For one Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 13 The forces of market justice have, in this period of neo-liberal ascendancy, come out firmly on top, creating a further critical imbalance in the relation between capitalism and democracy. The current period of crisis demonstrates once again how the state is called on dramatically to intervene, but, in doing so with austerity for the poor and primarily in order to regain international competitiveness under pressures of market justice, is doing so with scant regard for socio-economic equality and considerations of distributive or social justice. What kind of further democratic response, if any, this might lead to, remains to be seen. In the brief aftermath of the collapse of the Soviet Union, the idea of the co- originality and co-evolution of democracy and capitalism took hold of our collective imagination, a marriage that signified, on some accounts, no less than the end of history itself.42 Contributing to this eschatological sentiment in Europe was a narrative that paired wider integration with waves of democratisation and market liberalisation, as first Spain, Portugal and Greece emerge from political dictatorship to join the common market and later the countries of the former Soviet bloc apply for membership of the EU. And the ‘Copenhagen criteria’ for membership of the EU in the 1990’s made the pairing of democracy, the rule of law and human rights with a functioning market economy both formal and explicit conditions.43 Any sense of having reached the plateau of liberal democratic constitutionalism was not to last long, however, as, well before the recent financial crisis, the EU began to face a more inward looking constitutional crisis of legitimacy, expressed both in popular rejection of the Constitutional Treaty and in juridical resistance to the constitutional jurisprudence of the European Court of Justice.44 Both global and European narratives of a comfortable reconciliation of democracy and capitalism have now, in any case, been exposed if not completely exploded. Not least the role of the state has increasingly resumed centre stage, even if neo-liberalism has proved surprisingly ideologically resilient, as well as economically and politically powerful.45 thing, it occurred most intensely in places where the working class was being weakened – with the neo- liberal war on the unions waged by Reagan and Thatcher. Does Streeck’s argument imply that without democratic pressures, capitalism would exist in a natural equilibrium? That markets would be self- correcting if left to themselves, unperturbed by democratic pressure? For a different account of the golden age and subsequent ‘long downturn’ see R. Brenner, The Economics of Global Turbulence (London, Verso, 2005), emphasising the significance of the global unevenness and competition between national capitalisms. 42 The reference of course is to Francis Fukuyama, The End of History and the Last Man. For more nuanced accounts, rejecting both the internal relation and internal tension between capitalism and democracy, see e.g. P. Wagner, The Crisis of Democratic Capitalism: Reflections on Political and Economic Modernity in Europe, LEQS Paper 44/2011 and before the recent crisis, A. Touraine, What is Democracy? (Westview Press, 1997). 43 Laid down at the June 1993 European Council meeting in Copenhagen. 44 The strongest resistance in terms of influence has been from the German Constitutional Court. See e.g. D. Grimm, ‘Defending Sovereign Statehood Against Transforming the Union into a State’ (2009) European Constitutional Law Review 353. 45 See C. Crouch, The Strange Non-Death of Neo-Liberalism (London, Polity Press, 2011). 8/2014 14 Obituaries for an end of history thesis already deconsecrated by its own author are unnecessary, which is not to say we have definitively moved beyond its paradigms. But however resilient the modern liberal state, the crises and contradictions of democratic capitalism have undoubtedly escaped its confines, becoming Europeanised and globalised, most apparently in the latest economic crises in the Eurozone, which of course were set in motion by events on the other side of the Atlantic.46 So too the site of struggle between market justice and social justice has now shifted, at least partially, beyond the state, being played out between electorates and financial institutions, governments and international organisations. 4. FRAMING THE EU’S SOCIAL JUSTICE DEFICIT Through the evolution of political and legal institutions in the EU, both coercive and consensual aspects of political rule would emerge beyond the state, even if only in incipient form. But this gradual outsourcing of political authority and of constitutional checks and balances, rather than protecting the Keynesian- Westphalian ‘nation-state’, now threatens rather to transform it, into a post- Westphalian ‘member state’.47 There are many aspects to the erosion of the national political frame and the demise of its social-democratic Keynesian compromise; the precise role that the EU has played in this narrative is far from straightforward. And to be sure, our specific judgment may vary depending on which of the varieties of capitalism from amongst the various Member States we take as our exemplar.48 Even on a single state, the effects of European integration may vary over time, as laws and institutions at national and supranational level themselves evolve. The purpose of Streeck’s account was, however, to suggest that, despite the possibility and actuality of regional variation in terms of the precise political construction of and response to the capitalist economy, there is a singular logic and ethic of capitalism and market justice, which not only can be abstracted from its varieties, but is integral to its institutional and ideational form. And, however persuasive the varieties of capitalism literature in comparative context, there is a strong current of opinion, in states as varied in their political and constitutional economies as the UK and Germany,49 which holds that 46 For an account of this single globalised crisis of financial capitalism see e.g. M. Aglietta, ‘European Vortex’ (2012) 75 New Left Review 15. 47 See Bickerton, note 34 above, chapter 2. I borrow the term Keynesian-Westphalian from Nancy Fraser. 48 See e.g. P. Hall and D. Soskice (eds.) Varieties of Capitalism. The Institutional Foundations of Comparative Advantage (Oxford, Oxford University Press, 2001). 49 In the UK context, see D. Nicol, The Constitutional Protection of Capitalism (Oxford, Hart, 2010); in the German context see F. Scharpf, ‘The Asymmetry of European Integration: or Why Europe Can’t Have a Social Market Economy’ (2010) 8 Socio-Economic Review 211. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 15 European integration has been a significant factor in the erosion and even overall demise of the ‘Keynesian-Westphalian’ compromise due to the structural asymmetries that the EU creates and maintains.50 Institutions and practices of social justice, both public and private, at the national level, if not found disproportionate in their effects on trade, may become a burden of comparative disadvantage due to the effects of competition and free movement norms. The juridification of the default rules of free circulation of the factors of production in the EU, combined with the political difficulties of re- regulation or even Treaty amendment (in areas where the EU lacks competence), particularly in light of the consensus politics with which it operates, favours and even entrenches a firmly, if not unambiguously, neo-liberalising trajectory.51 Idiosyncratic features of supranational integration not only combine to prevent cogent political-democratic response to the social dysfunctionality of the market but also deter the creation of possibilities for such response: a central bank unable to buy government debt and bound to the single objective of ensuring price stability, the relative lack of labour mobility due to cultural and linguistic heterogeneity, unprecedented wage repression in the largest economic bloc, an eclectic mix of economic development and bureaucracies in different phases of modernisation, and above all the (real or perceived) absence of a supranational community of fate.52 The structural asymmetries imposed by Europe’s peculiar brand of federalism tips any balance of justice overwhelmingly in favour of market and against social justice, pushing the dynamic disequilibrium of democratic capitalism to tipping point. There are simply insufficient channels of contestation to generate the social and political legitimacy for any Polanyian double movement at the supranational level that might correct these biases and imbalances. Although there is a powerful and growing body of academic opinion to say that political union must now ultimately ensue, either to deal with the German question or to resolve the Greek problem,53 the EU emphatically has not itself followed in the footsteps of the statist model or developed a fully-fledged transnational social contract. Arenas of distributional conflict are becoming ever more remote from domestic politics, but the imperative to upscale the democratic political framework for the negotiation and re-negotiation of justice claims has been resisted.54 The political response to redistributive questions in Europe – to 50 It is Fritz Scharpf, above all, who has conceptualised and described in institutional detail the social and economic imbalances caused by Europe’s constitutional asymmetry. See recently, on the role of European law in this process, F. Scharpf, ‘The Asymmetry of European Integration: or Why Europe Can’t Have a Social Market Economy’ (2010) 8 Socio-Economic Review 211. And for a broader examination of this asymmetry in the terms of constitutional theory, see N. Walker, ‘The Place of European Law’, in J. Weiler and G. DeBurca (eds) The Worlds of European Constitutionalism (Cambridge, CUP, 2011). 51 See Scharpf’s exhaustive analysis of the asymmetry between market and social rules, law and politics in the EU, ibid. 52 See P. Anderson, ‘After the Event’ (2012) 73 New Left Review 49 – 61. 53 See e.g. U. Beck, A German Europe (Cambridge, Polity Press, 2013). 54 Streeck, ‘Crises of Democratic Capitalism’, n 7 above, 27. 8/2014 16 questions of social justice not only within but also between states – has occurred, if at all, sotto voce, behind the backs of the electorates. If taking market logic and market justice beyond the state has been celebrated in Europe in an era of ordo- and then neo-liberalism, taking democracy and social justice beyond the state has proven theoretically and practically problematic, to say the least.55 Democracy, it is only too clear, has not become fully supra-nationalised in response to the freedom of capital and other factors of production to roam beyond borders. And if the democratic deficit in the EU was already notorious, it has now become critical, with constraints placed on the core of national democratic sovereignty in the ESM and ‘Fiscal Compact’.56 And yet, on the dominant ordo-liberal account, the asymmetry of European integration was entirely justified: the supposed virtues of inter-state competition and the perceived economic benefits of the free circulation of goods, workers, and capital better attained without political interference.57 Founded on ‘guarantees of economic freedom’, the EU’s legitimacy - according to a leading figure in the ordo-liberal school - is quite ‘independent’ of its ‘democratic and socio-political future.’58 From a market liberal perspective, moreover, the absence of a ‘demos’ represented a solution rather than a problem: our reduction to ‘mere’ individuals, ‘consumers’ or ‘entrepreneurs’, is motivated by perfect economic rationality. An economic constitution celebrates the absence of a ‘demos’ because political redistribution of wealth, whether unjustified or merely irrational, is less likely to be feasible in the absence of community or social solidarity, a ‘we-feeling’ amongst the members of a polity.59 Ordo-liberalism, in tune with its neo-liberal cousin, ‘has more confidence in the economic constitution than in democracy.’60 This divorce of political authority from control over economic resources leaves market justice to triumph over its rival. But it is now becoming clear that not only would the EU fail to develop the political capacity to deal with perceived injustice across its borders, it would also impede the existing states from reconciling their own tensions and the writing and re-negotiation of their own social contracts: 55 For an account of the political traits of neo-liberalism, see D. Harvey, A Brief History of Neo-Liberalism (Oxford: Oxford University Press, 2007). 56 ‘Treaty Establishing the European Stability Mechanism’ (ESM), July 11, 2011, O.J. (L 91) and the ‘Treaty on Stability, Coordination and Governance in the Economic and Monetary Union’ (‘Fiscal Compact’) http://www.european-council.europa.eu/eurozone-governance/treaty-on-stability?lang=en, last accessed on 16 January 2014. For analysis, See e.g. See M. Dawson and F. De Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 817. 57 The ordo-liberal account of the EU is presented by Ernst-Joachim Mestmacker, see e.g. ‘European Touchstones of Dominion and Law’ (2007) The Ordo Yearbook of Economic and Social Order 4. On regulatory competition, see A. Sayde, ‘One Law, Two Competitions: An Enquiry into the Contradictions of Free Movement Law’, (2011) Cambridge Yearbook of European Legal Studies, 365-413. 58 Mestmacker, ibid, 7. 59 Hayek favoured a form of interstate federalism to assuage the perceived threat of redistribution. For discussion, see A. Somek, ‘The Social Question in a Transnational Context’, LEQS Papers, 39/2011. 60 J. Habermas, The Crisis of the European Union: A Response (London, Polity Press, 2012) 129. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 17 the construction of Europe as an economic and monetary union, without corresponding political and fiscal integration, disabled the protective capacities of member-states without creating broader, European-wide equivalents to take up the slack. Today, the evidence is all around us: Greece is reduced to a protectorate, Spain, Portugal and Ireland are ruled from Brussels, and central bankers set limits to domestic policy even in Germany and France. The upshot is that the project of social protection can no longer be envisioned in the national frame.61 Regarding the national level, there is a strong case to say that whatever was left of the Nordic model of welfare capitalism after the neo-liberal onslaught of the late 1990’s has been further undermined by the rulings of the court of justice in its recent case-law on the free movement of establishment and freedom to provide services.62 Far from the European rescue of the nation-state, the EU now seems to be in the process of contributing to its transformation. The sense of a serious imbalance between capitalism and democracy, caused or exacerbated at least in part by Europe’s constitutional asymmetry, is becoming increasingly pervasive. Jürgen Habermas, an otherwise avid if not stubborn supporter of the project of integration, now notes that ‘political management’, ‘uncoupled’ from the democratic pressures and dynamics ‘of a mobilised political public sphere and civil society’, is deprived of the motivational strength to resist capitalism, unable ‘to contain and redirect’ its ‘profit-oriented imperatives’ into ‘socially compatible channels’. As result, governing authorities increasingly ‘yield’ to the neo-liberal pattern of politics: A technocracy without democratic roots would not have the motivation to accord sufficient weight to the demands of the electorate for a just distribution of income and property, for status security, public services, and collective goods when these conflicted with the systemic demands for competitiveness and economic growth.63 Market discipline had been supposed to perform the function of stabilising economic systems, to compensate for the merely soft, symbolic sanctions against fiscal excess in the Stability and Growth Pact (violated almost immediately by France and Germany)64 and for the ‘no bail-out’ rule enshrined in the Treaty (Article 125 TFEU) that prevented, in theory, transnational sharing of the burdens 61 N. Fraser, ‘Triple Movement’ (2013) New Left Review 126. 62 For recent analysis, see e.g. E. Christodoulidis, ‘The European Court of Justice and “Total Market” Thinking’ (2013) 14 German Law Journal 2006. 63 J. Habermas, ‘Democracy, Solidarity and the European Crisis’, lecture delivered at Leuven, in April 2013, a full transcript is accessible at: http://www.kuleuven.be/communicatie/evenementen/evenementen/jurgen-habermas/en/democracy- solidarity-and-the-european-crisis, last accessed on 16 January 2014. 64 A violation side-stepped by the Court of Justice in Case C-27/04 Commission v Council. 8/2014 18 of any economic crisis, until the Court rules otherwise in its Pringle decision.65 But soft measures are now to be substituted for the harder rules contained in the ESM and ‘Fiscal Compact’.66 Although, strictly speaking, these take place outside the EU acquis, they threaten the constitutional balance of the European Union, by calling into question the most cherished principles of integration – democracy, Member State equality, the balance of powers, the ‘community method’, and even respect for the rule of law itself.67 If the EU was destined to become a civilised, ‘non-imperial Empire’,68 then the financial crisis and responses to it are threatening to tear away this thin veneer of respectability. Disorder, in the present critical conjuncture has spilled over from the economic to the political domain, upsetting not only the ‘system integration’, but also the ‘social integration’ of contemporary societies, as the life- world becomes increasingly precarious, with austerity programs, in the southern Europe in particular, wrecking lives. Not only is political democracy in practice suspended in debtor countries, but the economic constitution itself is bypassed, because of the imperatives of the financial markets and the concerns of creditor states.69 And where that is the case, as, arguably, it already is in countries like Greece, Ireland and Portugal, ‘street riots and popular insurrection may be the last remaining mode of political expression for those devoid of market power’.70 This tampering with an already precarious equilibrium threatens to explode – if not already detonated – into outright revolt in Europe. If there was already a democratic deficit in Europe, there is now a crisis of democracy. And because of the power – real or imagined – of the troika and even the credit rating agencies themselves, citizens increasingly perceive their governments, ‘not as their agents, but as those of other states or of international organisations’,71 who utilise the messages sent by the financial markets to control and cajole if not to coerce their populations. The financial markets, we are increasingly informed, will simply not tolerate certain political outcomes, or more often, political indecision, giving new lease of life to the sentiment that ‘time is money’.72 And international organisations, such as the IMF and the European Union, are ‘immeasurably more insulated from electoral pressure than was the traditional 65 Case C-370/12, Pringle v Ireland. For analysis, see A. Menendez, ‘The Existential Crisis of the European Union’ (2013) German Law Journal 453 - 526. 66 Note 51 above. 67 See M. Dawson and F. De Witte, above note 56. 68 In the words of Jose Manuel Barroso, see http://www.brusselsjournal.com/node/2244, last accessed on 16 January 2014. 69 See C. Joerges, ‘Europe’s Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2179595#, last accessed on 16 January 2014. 70 Streeck, ‘Crises of Democratic Capitalism’, n 7 above, 28. 71 Streeck, ‘Crises of Democratic Capitalism’, n 7 above, 26. 72 Accredited of course by Max Weber to Benjamin Franklin. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 19 nation-state’.73 Whereas in the post-war constitutional settlement this insulation (or democratic constraint) was considered one of the EU’s supposed strengths – and in the ordo-liberal account, a real virtue – it is now increasingly being perceived as a disruptive and dangerous vice. As a result, extreme nationalist political parties prosper, with promises, however unrealistic, to regain the harnesses of power and smash the mythical power of fate, personified now by faceless bureaucrats and troika representatives. The need to ‘re-embed’ the market economy has been exploited by reactionary movements of right-wing populism rather than transnational movements of pan- European solidarity. The promise of regaining collective autonomy, which only appears institutionally possible at the national level, however illusory in practice, is a far from unattractive platform from which to gain popular electoral support. 74 In the wake of the financial crisis, we have witnessed the results of capitalism acting ‘more like itself’, with capital movement and market justice having increasingly strained at the leash of democratic and territorial controls. And in the absence of a European demos and democratically legitimate European institutions, it is not markets themselves but strong states that appear to take up the slack, however reluctantly, to ensure the survival of transnational capitalism and the market economy. In this way, the financial crisis has not only revealed the fragility of the constitutional principles of the EU; it has also exposed a horizontal asymmetry between larger and smaller member states, or economically stronger and economically weaker states, that was previously concealed. So although strong statehood is lacking at the supranational level, there is at least one contender at the national level, which in conjunction with technocratic governance structures in the EU has been able to call the shots: the Federal Republic of Germany.75 In the absence of political channels of contestation, dictats and coercive measures prevail. And they appear to emanate from one source in particular. As Perry Anderson puts it, In the European simulacrum of federalism, there could be no ‘transfer union’ along American lines. Once crisis struck, cohesion in the Eurozone could only come, not from social expenditure, but political dictation—the enforcement by Germany, at the head of a bloc of smaller northern states, of draconian austerity programmes, unthinkable for its own citizens, on the southern periphery, no longer able to recover competitivity by devaluation.76 Coercive elements of rule are becoming increasingly prominent and exposed, from the centralised supranational authority and its representatives in the Commission 73 Streeck, ‘Crisis of Democratic Capitalism’ n 7, above, 26. 74 This is most evident in Greece with the rise of Golden Dawn. Greece is perhaps unique in also giving rise to a major new left-wing and anti-austerity party, Syriza, which, although maintaining support for the Eurozone was considered a threat by the liberal establishment, particularly in Germany. 75 See e.g. Beck, note 53 above. 76 Anderson, note 52 above. 8/2014 20 and European Central Bank, to international organisations such as the IMF, 77 as well as among the Member States themselves. Real economic power discrepancies are even becoming translated into political norms, as is the case of the voting weights in the European Stability Mechanism.78 European integration not only adds an additional layer of complexity to the relationship between democracy and capitalism; it also makes the core tension more visible. It exposes the justice deficit in broad daylight and the coercion necessary to sustain the background conditions of transnational economic order. Preventing conflict from becoming critical and destructive of the project of the Euro must, we are told, be achieved at all costs. The post-war narratives of ‘constrained democracy’ and ‘constrained capitalism’ therefore appear to be coming to an abrupt end in the current phase of European integration. And, in a conjuncture of exquisite irony, it seems that the constitutional model of the European Union is to be forcefully remade due to the political and economic strength of the one country that integration was supposed above all to contain. Mann’s nightmarish vision of a ‘German Europe’ rather than a ‘European Germany’ is in danger of becoming a reality.79 5. POLITICISING JUSTICE DEFICITS There are many attempts to justify the institutional responses to the financial crisis, to suggest, for example, that they are necessary temporarily, in the short- term, to ensure the stability of the integration process, or at least its currency, in the long run. There have been attempts to justify the constitutional asymmetries and justice deficits in the EU. Some also deny that European integration creates, contributes to or maintains such deficits at all. But it is becoming increasingly difficult to persuade persons, and indeed entire peoples, that integration merely expands the pie for all, that there are not real transnational redistributive implications of membership in the EU or even that they remain in collective control of their fates. And many influential commentators now argue that Europe will need to engage in huge and explicit redistributive programs and therefore develop into full political union in order to deal with the social and economic effects of the recent financial crises.80 But in the absence of the requisite transnational solidarity to support this democratically, openly and voluntarily, the emergency ‘rescue operation’ is being 77 For analysis of the institutionalisation of this ‘troika’, see Menendez, note 65 above. 78 See De Witte and Dawson, note 56 above. 79 See Beck, note 53 above. 80 See e.g. Offe, ‘Europe Entrapped: Does the EU Have the Political Capacity to Overcome its Current Crisis’ (2013) European Law Journal 595 – 611. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 21 conducted in an ‘undemocratic, depoliticized, and technocratic mode’.81 This raises the danger of new forms of authoritarianism emerging, both nationally and transnationally.82 A recalibration of the ‘moral calculus’ of integration – of transnational solidarity – will not however to come top-down from elites, but, if at all, from the recognition by the peoples of Europe of the injustice of those suffering from the austerity measures being imposed upon them. 83 The justice deficit, however, is frequently de-politicised by naturalising the ascendency of market justice. There is, for example, a strong tendency to perceive the initial movement of capitalist logic and market justice in quasi-naturalistic terms, as an unstoppable social and evolutionary force, which democratic politics can do nothing more than attempt to tame or civilise in response. This perception of the capitalist economy as natural and autonomous is most explicit and developed in systems theory and can be traced back through to Weber’s rationalisation thesis of modernity, and even beyond, to the natural law understanding of the economy that substitutes the state for civil society, in the work of thinkers such as Adam Smith and Thomas Paine. De-politicisation of the public sphere finds support in elite theories of democracy and systems theory, because, in common with the classical doctrines of political economy, they appeal to an evolutionary narrative of social reproduction, whether normatively or merely descriptively. 84 Common to these varied positions is the viewpoint that the economic is not only autonomous; it is foundational for the polity and for political development.85 It is a view that even (sympathetic) critics of Weber such as Jürgen Habermas have come to adopt.86 Since the fall of the Berlin wall and the collapse of the Soviet Union, he claims, it has become ‘impossible’ to break free from the world of capitalism; ‘the only remaining option is to civilise and tame the capitalist dynamic from within’.87 And the transformation of law and politics in the process of European integration, Habermas argues, is bound up with this capitalist dynamics, framed by a ‘functionally driven opening’ of integration and inclusion followed by a ‘socially integrative closure’, or re-embedding of the market.88 There is a broader point here. Escape from democratic politics signalled by the practice and discourse of ordo- and neo-liberalism is not new; its sentiment is as old as philosophy itself. Liberalism’s attempt to escape from politics through 81 Offe, ibid. 82 See Wilkinson, above note 28. 83 The term ‘moral calculus’ is Offe’s, see note 80 above. 84 For Weber, rationalisation is an aspect of our loss of freedom in modernity, see, for discussion, e.g. K. Breen, ‘Under Weber’s Shadow: Modernity, Subjectivity and Politics’ in Habermas, Arendt and MacIntrye (Ashgate, 2012). On Smith and Paine, see e.g. M. Loughlin, Foundations of Public Law (Oxford, OUP, 2010) 347. Teubner’s work is an important exception here, providing a critique of the naturalisation of economic rationality from within systems theory; see note 18 above. 85 Foucault identifies this reversal as central to understanding neo and ordo-liberalism. See M. Foucault, The Birth of Bio-Politics: Lectures at the College de France (London: Palgrave MacMillan, 2010). 86 Cf. Breen, note 84 above. 87 Habermas note 60 above, 106. 88 ibid, 113. 8/2014 22 economics, as Hannah Arendt argued, is not a departure, but a continuation of the philosophical tradition that begins with Plato and ends with Marx.89 Once a substitute for action is found – which is traditionally the role of the ‘absolute’, in modern times Sieyes’ nation or Jefferson’s self-evident truths – politics becomes mere administrative execution, analogous to the private economic decisions of the household. The loss of the political comes with the identification of a source of authority ‘beyond the sphere of power’ and, whether the law of nature or the commands of God, not itself ‘man-made’. The source of authority apparently ‘beyond the sphere of power’ and therefore beyond the sphere of democratic politics is now the market itself and global capital markets in particular, their authority anonymised in the form of barely comprehensible and virtually unaccountable credit rating agencies. The suggestion of the ‘naturalness’ of any existing order and the inequalities in which it results is ideologically potent, particularly when it is accompanied by an ethos of competition and an individualism that might be attractive for other moral or cultural reasons.90 The high water-mark of this reification of the capitalist economic logic is the neo-liberal insistence that ‘there is no alternative’ (TINA), propagated so forcefully by Margaret Thatcher that it was swallowed whole not only by her Conservative but by her ‘Third Way’ successors, in the UK and elsewhere.91 Can the justice deficit be politicised or re-politicised? This, it is argued, is a condition for it to be democratised, however democratisation might then be institutionally imagined and implemented. Although this will not of course convince those who deny there is a social justice deficit at all in the EU, it remains, if correct, a contribution to an account of why social (or market) justice deficits are in large measure political artefacts, whether or not they exist in any particular place at any particular time. The struggle for social justice must be viewed not only in terms of the possibilities of reacting through existing channels to the (actual or perceived) injustice perpetuated by market capitalism but in terms of the creation of markets and of the channels of response to them in the first place. We can then consider in particular the way that politics facilitates or hinders a democratic response to that actual or perceived injustice as well as its complicity in the initial movements of market making and inducing the extension of market logic. 89 See H. Arendt, Between Past and Future (Penguin, 1968) 17 – 19. The point is made as strongly in The Human Condition (University of Chicago, 1958) 222: ‘Escape from the frailty of human affairs into the solidity of quiet and order,’ Arendt notes, ‘has in fact so much to recommend it that the greater part of political philosophy since Plato could easily be interpreted as various attempts to find theoretical foundations and practical ways for an escape from politics altogether’. 90 On the supposed natural quality of the economic order in neo-liberalism, see e.g. M. Foucault, The Birth of Bio-Politics: Lectures at the College de France (London: Palgrave MacMillan, 2010), O. Parker, Cosmopolitan Government in Europe (London: Routledge, 2012). On how neo-liberalism splits the left, by co-opting liberal social causes, see Harvey, above note 55. 91 Thatcher, when asked to name her greatest legacy, famously responds, ‘Tony Blair’. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 23 Politicisation of the justice deficit points at how capitalist market logic depends upon the state and on political action not only for its maintenance and ‘taming’, but also for its creation and re-creation. This can occur both through action and inaction. It suggests that the state is at once both problem and solution to the crises of democratic capitalism; both poison and cure. According to a radical philosophical tradition, the state apparatus is not only responsible for an initial, often violent, movement of original or ‘primitive’ accumulation that sets up the economic and social conditions for market capitalism (Marx’s ‘doubly free labourer’), but also constantly or periodically re- constitutes these conditions through ‘accumulation by dispossession’.92 But others – including those less radical – have identified political action, coercion and violence, whether through internal corruption, war or in the form of global imperialism (‘political capitalism’), as central to at least some types and certain periods of market formation and continuing in aspects of modern capitalism.93 Violence, coercion and imperialism, however, are only contingently necessary to alter the balance of forces between democracy and capital. In the most recent era of neo-liberalism, to the conceptual dynamic of social and market justice must also be added political and legal changes made to and by the State which tip the balance between democracy and capitalism in favour of capital, such as the hollowing out of state powers, the turn from government to governance, whole- sale privatisation programs, the removal of issues from the democratic agenda and into the regulatory arena of experts and technocrats and constitutionalisation – and therefore judicialisation – of economic rules, particularly through international institutions.94 There is a strong affinity between privatisation and regulation on the one hand and technocratic, expert government on the other, and of course in the EU this was captured by Majone’s notion of the ‘regulatory state’, although it is also an aspect of the ideology of ‘constrained democracy’ that we explored above.95 There was, and is, nothing inevitable about the turn to the regulatory state; it is the expression of political choices and planned structures. Placing the political and its most potent manifestation, the modern state, at the root of the political economy of capitalism (whether classical, late or ‘post-modern’) and the seemingly inexorable spread of market logic, highlights the contingency of the market as an economic and normative form, however powerfully articulated and cultivated institutionally and ideologically. As Joseph Weiler acknowledged with respect to the process of market-building as the centerpiece of European integration: 92 See D. Harvey, The New Imperialism (Oxford, OUP, 2003); E. Meiksins Wood, Empire of Capital (London, Verso, 2003). For an earlier account, see Arendt, note 27 above, 148, drawing on Rosa Luxemburg. 93 Such as Max Weber himself, with his category of ‘political capitalism’. See e.g. R. Swedberg, Max Weber and the Idea of Economic Sociology (1998) 46 - 53. 94 See e.g. S. Gill, Power and Resistance in the New World Order (London and New York, Macmillan-Palgrave, 2003), D. Nicol, The Constitutional Protection of Capitalism (Oxford, Hart, 2010), W. Bonefeld, ‘Neo-Liberal Europe and the transformation of democracy’ in Nousios, Overbeek and Tsolakis (eds) Globalisation and European Integration (London, Routledge, 2011). 95 See G. Majone, Regulating Europe (London, Routledge, 1996). 8/2014 24 A “single European market” is a concept which still has the power to stir, but it is also a “single European market”. It is not simply a technocratic programme to remove the remaining obstacles to the free movement of all factors of production. It is at the same time a highly politicised choice of ethos, ideology and political culture: the culture of “the market”[…] premised on the assumption of formal equality of individuals […] Crucially, this not only accentuates the pressure for uniformity, but also manifests a social (and hence ideological) choice which prizes market efficiency and European-wide neutrality of competition above other competing values.96 Of course de-politicisation was in some sense a deliberate choice in the designs of the various European communities, which favoured consensual over conflictual evolution, at least the consensus of powerful political and economic elites.97 The transnational economy would be based on legal guarantees, technical regulations and even ‘soft laws’ such as the Stability and Growth Pact, rather than centralised political controls subject to democratic contestation. One might say, adopting Weiler’s influential narrative, that it was based on this combination of law and technocracy precisely because political controls remained with the Member States, reluctant to surrender them, particularly in the early stages of integration.98 But once the political nature of transnational market logics is acknowledged, then alternatives to the fundamentals of the current set-up – and not merely tinkering around the edges – might be explored as a genuine possibility. The crisis is, in any case, already exposing the weakness of the rule of law in the face of political response to economic emergency, as developments in the grey zone of the Union method evolve, although it is too early yet to say precisely what this portends.99 6. DEMOCRATISING THE JUSTICE DEFICIT? The ‘Keynesian-Westphalian’ negotiation of market and social justice through a combination of ‘constrained capitalism’ and ‘constrained democracy’ can no longer be taken for granted, if not already consigned to the history books.100 We have sketched the role that European integration has played in this negotiation 96 J. Weiler, ‘The Transformation of Europe’ (1991) Yale Law Journal 2477. 97 For an account, see M. Dani, ‘Rehabilitating Social Conflicts in European Public Law’ (2012) 18 European Law Journal 621 – 643. 98 Ibid. 99 See A. Menendez, note 65 above, for the long view. 100 Müller himself thinks we have recently turned a corner and that the EU has changed qualitatively, no longer able to lock in states to democratic and social commitments, see ‘Beyond Militant Democracy’ (2012) 73 New Left Review 39. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 25 and its transformation, although of course it is a story that touches on all the states of the democratic capitalist world. The effect of globalisation and Europeanisation has been ‘to destabilise’ the existing structures of political claims and to change the dynamics of market and social justice.101 With this destabilisation, even explosion, of the national frame, the assumption no longer holds that the modern territorial state is the exclusive site of justice claims. Neither is it clear that the citizens of such states are exclusively the relevant subjects of debates about justice. As Nancy Fraser argues, not just the ‘what’ but also the ‘who’ of justice must now be up for grabs.102 This is nowhere more evident than in contemporary Europe, where integration now directly raises the question of what, if anything, Germans owe Greeks (or vice versa), either as the result of a ‘moral calculus’ of integration or for the benefit of their own long-term self-interest. In addition to the usual first order questions of distribution and recognition within a particular community, second-order questions are increasingly being raised about justice in the EU. Not only the substance of justice, but also the ‘frame’ is increasingly in dispute, and demands are increasingly being made for a post-Westphalian theory of justice.103 And yet, in recalling the priority of politics we cannot ignore the question of the political, or le politique, which, fundamentally, defines the parameters of who is to be counted amongst the members of the relevant community, and, in its most infamous formulation, between who is friend and enemy.104 The point is not merely to highlight the priority of action and contingency over decisionism and necessity, because, as Fraser herself acknowledges, the political ‘furnishes the stage on which struggles over distribution and recognition are played out’. She continues: Establishing criteria of social belonging, and thus determining who counts as a member, the political dimension of justice specifies the reach of those other dimensions: it tells us who is included in, and who excluded from, the circle of those entitled to a just distribution and reciprocal recognition.105 The framing of ‘the political’ determines not only who can make justice claims, by virtue of establishing who is a member of the relevant community, but also how such claims are to be made, judged and acted upon, and of course the precise procedures are significant because they not only exclude certain voices, but also 101 See N. Fraser, ‘Reframing Justice in a Globalizing World’ (2005) New Left Review 69. 102 Ibid. 103 Fraser, note 101 above, at 73. 104 C. Schmitt, The Concept of the Political (University of Chicago Press, 1927), 2007. For an account of European constitutionalism which gives priority to the political, but in more dynamic and reflexive terms, see M. Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76 Modern Law Review 191 – 222. 105 Fraser note 101 above, 75. 8/2014 26 privilege some interests over others in stipulating the rules and conditions of access. Political justice is therefore concerned chiefly with the idea and the practice of representation, where misrepresentation would point to the distinctively political obstacles to equality of representation, in addition to in justice presented by maldistribution and misrecognition within a polity. Misrepresentation can occur at the first ordinary, domestic level of the democratic process, where, for example, the rules and internal constituencies of the electoral system itself are drawn. This is far from straightforward in a compound polity such as the EU, which has to balance the basic principle of the equality of persons with the more complex principle of the equality of states, because the constitutional identity of the component parts matters.106 A balance is sought through the electoral system of the European Parliament, with its system of degressive proportionality, engagement with national parliaments, and in conjunction with forms of indirect representation through the European Commission and Council. Although this balance is difficult in any federal or compound polity it has special resonance in the EU because of the continuing sovereignty claims of the constituent parts, as so forcefully articulated, however disingenuously, by the German constitutional court in the Lisbon decision, which insists on maintaining the constitutional power to guarantee its own social state.107 Misrepresentation can also occur at a second level, which concerns the basic boundary-setting aspect of ‘the political’. Here misrepresentation takes the form of mis-framing, where the injustice is not insufficient representation but wrongful exclusion from any kind of political representation. Although the process of economic globalisation exposes this mis-framing because it reveals our inter- connectedness in a more comprehensive and immediate manner, it must be remembered, with Arendt, that the Keynesian – Westphalian frame itself mis- framed in significant respects, with political emancipation tied in with legacies of capitalist expansion and imperialism.108 If political obstacles to full and fair representation existed within the Keynesian – Westphalian frame of the territorial state, European integration - and economic globalisation more generally - exposes the injustice of the frame itself, because those affected by it are marginalised from its political decision-making centres in spite of the legal and political equality they are formally attributed. The enhanced possibility of political gerrymandering comes at the expense of the marginalised and powerless, who can only, if at all, channel their claims through relatively ineffective political channels. The allocation of votes in the European Stability Mechanism, weighted by capital contributions, is a good example of the 106 See e.g. C. Lord and J. Pollak, ‘Unequal but Democratic? Equality According to Karlsruhe’ (2013) 20 European Journal of Public Policy 190 – 205. 107 For a critique of the German court’s understanding of political equality see Lord and Pollak, ibid. 108 See note 27 above. Michael A. Wilkinson Politicising Europe’s Justice Deficit: Some Preliminaries 27 normalisation of the conflation of economic and political power, which has potentially dramatic effects on the principle of political representation. Europeanisation and globalisation are politicising the normal Westphalian frame of justice by making a dimension of injustice more visible. A special kind of meta-injustice is exposed, where some are wrongly excluded from consideration, ‘denied the chance to press first-order claims’ within a community.109 Metapolitical misrepresentation arises when states and transnational elites monopolize the activity of frame-setting, denying voice to those who may be harmed in the process, and blocking creation of democratic arenas where the latter’s claims can be vetted and redressed. The effect is to exclude the overwhelming majority of people from participation in the meta-discourses that determine the authoritative division of political space.110 In the EU, those who consider their voices silenced by processes beyond their individual and even collective control will take to the streets instead, as we have seen from Athens to Madrid and from Lisbon to Paris. But, one might ask, in the new light of the redistributive implications of economic and monetary union, why is it that the political code is still predominantly nation versus nation? What explains the absence or weakness of transnational social movements in comparison to the power of transnational capital? Is it a straightforward failure of elites? To begin to answer this, a third element of social struggle must be explored, working alongside economic and social justice, in order to appreciate the full complexity of the justice deficit: ‘emancipation’. Really existing social struggles do not neatly fit the contours of a Polanyian double movement or of Streeck’s rebalancing of the relationship between market and social justice. Instead they have exposed problems not only with marketisation and the spread of market logic but also with the socially protective responses to it that, in the name of social justice, have depended on an exclusionary rhetoric of communitarianism, homogeneity and popular consensus.111 Struggles for emancipation are now cross- cultural, transnational, plural and heterogeneous; from feminism to the anti-war movements, Occupy to trade unionism, environmentalism to the indignados, the voices of social justice are diverse and dispersed.112 A politics of representation must ‘aim to democratize the process of frame- setting’,113 to contest the way in which boundaries themselves are drawn. This is 109 Fraser, note 101 above, 77. 110 Fraser note 101 above, 85. 111 On the exclusion and sovereign violence of the social contract model See Parker, above n 90. 112 See the report on subterranean politics. In the eyes of the Habermas-Derrida initiative, it was the anti- war movements coordinated on 15 February against the invasion of Iraq that gave birth to a European public sphere. See ‘February 15, Or What Binds Europeans Together’ reprinted in (2003) 10 Constellations 291 – 297. 113 Fraser, note 101 above, 80. 8/2014 28 no easy task.114 But what it suggests is that to the tension between the logics of democracy and capitalism must be added the logic of the state, and its external and internal manner of setting the scene for this ceaseless antagonism of interests and values, including the shaping of transnational political spaces such as the EU. Streeck’s dilemma of market and social justice must be substituted for a trilemma: of market, social and democratic justice. Only then might the destabilisation of the national frame signal democracy’s graduation rather than its retirement. 114 This is an area, however, where democratic experimentalism has presented certain insights about the need to keep open, contingent and provisional the form and content of the democratic community. 
work_ltwlja44k5errovidrbambfyo4	----	Whose Justice? Rethinking Transitional Justice from the Bottom Up ������� �� �� �� ��� ��� ������ ��� ������ �� ���� ���� ���� ���������� ��� ��� !� ����� ���� �� ���� � � ��� � � � �� ���� � ���� ��� ������ �� �������� �� �� � ��� ������ �� ���� ����� �� �� ���� �������� ��� � ����� ����� � �� �� � �������� ��� �� ���� ��� � ������� � � ������� � ������������� ������� ���� �� � ��� � ��� �� � ����������������� ���� ��� � ��� � �� ���� �� � ��� �� � �� ����� ��� ������� �� ������ �� � ������ ������������ �� � ��� �������� ��� � ����� � ������� ��� ����� ���� � ��� ������ ����� � � ���� ������ �������� ��� � ����� �� � ��� � � �� ������ ������� � �������� � ��� ����������� � ��� � ��� � ����� �� �� �� ��� �� ��������� � ������� ���� ���������� �� � �� �������� ��� � ����� ���� � ���� ��� � ����� ���������� � � ��� ������ � � � ��������� ������ ! " ������ ������� ���������� #��� !�� ��� $ ���� ���� � � ����% ���� �� �&�� ��� ��������� ��� ������� � � � � �� �� � ��� ��� ������ � �� ���� ��� ���� � �� �������� � ����� �� � � �������� ��� � ����� ��� ������ � �� � ��� �������� � ��� ��������� � �� �� � ������� �� � ����� � ���� ��� ��������� ��� ����� ��� ������ ���� �� ���� � ��������� �� ����� ����� �� ���� ��� ���������� �� ��� �� �� ������� � �� ������� �� ������� ��� ���� ����� �� �������� ��� � ������ ���� ��� �� "#$ "#% &''( )*+(', $"' -�*%$�)*(./+)$ #0'(,#1 "#% +$% 2**$% +( $"' �'#)' .2#3'4*25 ,'6'/*�', +( $"' �(+$', �#$+*(1% �')2'$#27 8'('2#/ �*9$2*% �*9$2*%�8"#/+1% -�0'(,# .*2 :'#)'1 ;!!�� ; ( $"+% �#�'2 4' #,6#()' $"' ��� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/� :9&/+%"', &7 �/#)54'// :9&/+%"+(0 �$,� !��� 8#2%+(0$*( �*#,� �<.*2, ��= � >� �? #(, ��� �#+( �$2''$� �#/,'(� �� ��;=�� ��� @ '��������� � ( �� � �� )��������� � )������ * ������ ��� "��� ������ +�,- ./+� " ������ ������� ��� ���0 ��������� � @@ '��������� � ( ���� ��� ���� � ���� (�������� 1� � 2��� )���������� (� 2����� 3 ��� 4������� 5,6 7/ � 1� ���� �� ����0�� ��������� � ; !� ! ���� � � ����8 ������� � '��� ����� ��������� ��� ���������� A;!!�B ;C �� *)� �D=CD�CC��D�=;;;� 6+'4 $"#$ # 02#%%2**$% #��2*#)" $* $2#(%+$+*(#/ E9%$+)' %"*9/, &' 2'0#2,', #% #( +($2+(%+) �#2$ *. $"+% #0'(,#� �"' +($'2(#$+*(#/ )*339(+$7 "#% 2')'($/7 �2+*2+$+F', E9%$+)' +%%9'% #(, +% .+(#()+(0 #(, %9��*2$+(0 $"' +3�/'3'($#$+*( *. # �/'$"*2# *. /'0#/ +(+$+#$+6'%� �% *(' )*33'($#$*2 (*$',� ,'6'/*�3'($ )*�*�'2#$+*( "#% &''( 2'.*239/#$', +( /'0#/ $'23% #(, 3*2' #(, 3*2' +($'2(#$+*(#/ '..*2$ "#% 0*(' +($* &9+/,+(0 )*92$%� 42+$+(0 /#4%� �9(+%"+(0 �'2�'$2#$*2% *. "93#( 2+0"$% #&9%'%� %9��*2$+(0 "93#( 2+0"$% �8�%� #(, 0'('2#//7 �2*3*$+(0 $"' 29/' *. /#4 #&2*#,� � A�'�B'%$#&/+%"+(0 $"' 29/' *. /#4 +% (*4 2'0#2,', #% # �2'2'G9+%+$' .*2 $"' '3'20'()' *. %$#&/' #(, �'#)'.9/ %*)+'$+'% #(, E9%$+)' �#)5#0'% #2' .2'G9'($/7 �#2$ *. ('0*$+#$', �'#)' #02''3'($%� H*4'6'2� $"'2' +% # 02*4+(0 ,'&#$' #&*9$ $"' #��2*�2+#$' 3*,'/ #(, /'6'/ A.*2 '<#3�/'� $"' 0/*&#/� (#$+*(#/� /*)#/D)*339(+$7B #$ 4"+)" $2#(%+$+*(#/ E9%$+)' 3'#%92'% %"*9/, &' #,*�$',� #(, 4"'$"'2 $"'%' #2' )*3�/'3'($#27 *2 6+#&/' #/$'2(#$+6' �2*)'%%'%� � �2+$+)% "#6' #209', $"#$ /#4 +% +()2'#%+(0/7 %''( &7 $"' +($'2(#$+*(#/ )*339(+$7 #% *(' *. $"' %#.'%$ 4#7% +( 4"+)" $* '(0#0' 4+$"� *2 +($'26'('� +( *$"'2 )*9($2+'%� �9)" #$$'3�$% $* -+(./9'()' $"' 29/'% *. $"' 0#3'1 '6+,'()' $"' .#)$ $"#$ +($'2(#$+*(#/ E9%$+)' #(, 29/' *. /#4 +(+$+#$+6'% #2' (*$ �*/+$+)#//7 ('9$2#/� = ( �#2$+)9/#2� $"' $'(,'()7 $* '<)/9,' /*)#/ )*339(+$+'% #% #)$+6' �#2$+)+�#($% +( $2#(%+$+*(#/ E9%$+)' 3'#%92'% +% # �2+3#27 ./#4� 2#+%+(0 .9(,#3'($#/ G9'%$+*(% *. /'0+$+� 3#)7� /*)#/ *4('2%"+�� #(, �#2$+)+�#$+*(� �+3�/7 +(6*/6+(0 /*)#/ �'*�/' #$ $"' +3�/'3'($#$+*( %$#0' *. $"'%' +(+$+#$+6'% +% (*$ '(*90"� �*2 # .9//7 �#2$+)+�#$*27 �2*)'%% A4' 4+// #209'B $"'7 %"*9/, #/%* $#5' �#2$ #$ '6'27 %$#0' +( $"' �2*)'%% +()/9,+(0I )*()'�$+*(� ,'%+0(� ,')+%+*( 3#5+(0� #(, 3#(#0'3'($� �"' #+3 *. $"+% �#�'2 +% $* '<#3+(' )2+$+)#//7 %*3' *. $"'%' +%%9'%� #(, 4"+/' 3+(,.9/ *. $"' ,#(0'2% *. *6'2�'9/*0+F+(0 # �#2$+)+�#$*27 #��2*#)"� '<�/*2' $"' 6#/9' *. �#2$+)+�#$+*( #(, /*)#/ #0'()7 .*2 $2#(%+$+*(#/ E9%$+)' $"'*27� �*/+)7� #(, �2#)$+)'� $ +% %$29)$92', +( %+< �#2$%� �+2%$� +$ &2+'./7 '<#3+('% $"' *2+0+(% *. $2#(%+$+*(#/ E9%$+)' #(, +$% #��/+)#$+*( +( �*%$�)*(./+)$ %*)+'$+'%� �"+% +% .*//*4', &7 # &2+'. #%%'%%3'($ *. %*3' *. $"' 5'7 ��� � �� �*5"+&'2� 5 ��� �����������8 9 ��� � !�� � ��� * ����� (��� � A����B ; ;�� � �� �'$$%� -�"*9/, ���2*#)"'% $* :*%$�)*(./+)$ �9%$+)' #(, �')*()+/+#$+*( &' '$'23+(', 8/*&#//7� �#$+*(#//7 *2 �*)#//7J1 A����B ;C 1 � ���� *� � '���� ����� 3������� C�� ��I �� �+)5.*2,� -�(*..+)+#/ �29$" :2*E')$%1� 9(�9&/+%"', �#�'2 *( .+/' 4+$" #9$"*2% A����BI :� 82'#,7� -�')*()'�$9#/+F+(0 $2#(%+$+*(#/ E9%$+)'� '3&',,', #(, ,+%$#()', E9%$+)'1 A����B � $ ������� (�� ���� : '���� ����� � �;I :� �9(,7 #(, �� �)8*6'2(� -�"' +#/*09'% +$"+(� �'3*27� �*339(+$7 #(, :*%$��*(./+)$ �2#(%+$+*( +( # �#$+*(#/+%$ �*339(+$7 +( $"' �*2$" *. 2'/#(,1� �#�'2 �2'%'($', $* -�9/$92'% *. :*/+$+)#/ �2#(%+$+*(� �'3*27� ,'($+$7 #(, �*+)'1� ;� ;C �'�$'3&'2 ����I :� �9(,7 #(, �� �)8*6'2(� -:#2$+)+�#$+*(� �29$" #(, :#2$+#/+$7� :#2$+)+�#$*27 �)$+*( �'%'#2)"� �*339(+$7�&#%', �29$"�$'//+(0 #(, :*%$�)*(./+)$ �2#(%+$+*( +( �*2$"'2( 2'/#(,1 A����B =� ( �� � � C; ��� = �� H'#2(� -�+,+(0 ,'3*)2#)7J *(*2% #(, )+6+/ %*)+'$7 +( �*9$" �.2+)#1 A����B �; ����� ; ��� /� �;� ��I �� �*3'(� - *(*2 2+6'( �9%$+)' #(, +$ +%)*($'($%� �"' �#%' *. �4#(,#1 A����B �� '���� ����� ��� $��� � ��C !;�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �2+()+�/'% +(6*5', +( ,*3+(#($ 6'2%+*(% *. $2#(%+$+*(#/ ,+%)*92%'� $2#(%+$+*(� ,'3*)2#)7� #(, E9%$+)'� �"+2,� ,2#4+(0 �2',*3+(#($/7 *( +(%+0"$% .2*3 $"' .+'/, *. +($'2(#$+*(#/ ,'6'/*�3'($ %$9,+'%� $"' +,'*/*0+)#/ #%%93�$+*(% *. $2#(%+$+*(#/ +($'26'($+*(% #2' #(#/7%', +( $"' )*($'<$ *. # 4+,'2 -�*%$�)*(./+)$ #0'(,#1� �*92$"� $"' �#�'2 '<�/*2'% '6+,'()' %900'%$+(0 $"#$ # 3*6' $*4#2, # 02'#$'2 '3�"#%+% *( �#2$+)+�#$+*( +% '3'20+(0 +( $2#(%+$+*(#/ ,'&#$'%� �+.$"� $"' 2**$% *. �#2$+)+�#$*27 �2+()+�/'% +( 2#,+)#/ ,'6'/*�3'($ $"'*27 #(, $"' %$2'(0$"% #(, 4'#5('%%'% +( %9)" #( #��2*#)" #2' '<#3+(',� � )#9$+*9% (*$' +% 2#+%',� "*4'6'2� #&*9$ $"' )/#+3% $"#$ )#( &' 3#,' .*2 $"' �*$'($+#/ 3'2+$% *. # �#2$+)+�#$*27 #��2*#)"� �+(#//7� 9%+(0 # )#%' %$9,7 *. $"' �2,*7(' �*33'3*2#$+*( :2*E')$� # &*$$*3�9� -$29$"�$'//+(01 �2*E')$ +( �*2$"'2( 2'/#(, +( 4"+)" $"' #9$"*2% 4'2' +(6*/6',� $"' �#�'2 4+// ,+%)9%% #(, '<�/*2' $"' )*($2+&9$+*( *. 02#%%2**$% -$29$"�$'//+(01 �2*)'%%'% $* $2#(%+$+*(#/ E9%$+)'� � #(, 3#5' %*3' 0'('2#/ %900'%$+*(% #% $* "*4 $"'%' 3+0"$ &' $2#(%/#$', +($* 6#/9'% 9(,'2�+((+(0 $2#(%+$+*(#/ E9%$+)' �2#)$+)'� �"' #+3 +% $"'2'.*2' $* 3#5' # �*%+$+6' )*($2+&9$+*( $* $"' ,'&#$' *( $"' .9$92' ,+2')$+*( *. $2#(%+$+*(#/ E9%$+)' #(,� #$ # �2#)$+)#/ /'6'/� *. ,+%)9%%+*(% #(, �*/+)7 +(+$+#$+6'% *( -&*$$*3�9�1 #��2*#)"'%� �H� ����� �� � �� �� ����� � ���� ���� �� �2#(%+$+*(#/ E9%$+)' +% # .+'/, *. +(G9+27 #(, �2#)$+)' $"#$ +% )*()'2(', 4+$" -$"' 6#2+*9% E9,+)+#/ #(, (*(�E9,+)+#/ #��2*#)"'% $* ,'#/+(0 4+$" � � � $"' /'0#)7 *. "93#( 2+0"$% 6+*/#$+*(% +( %*)+'$+'% '3'20+(0 .2*3 )*(./+)$ #(,D*2 #( '2# *. #9$"*2+$#2+#( 29/'1� � �"'%' #��2*#)"'% +(6*/6' # -%'$ *. +($'2�2'/#$', �2+()+�/'% #(, �2*)'%%'%1 )'($2', #2*9(, $"' +3#0+(', 2*/' *. /#4 #(, /#4� 3#5+(0 -+( )*(%$+$9$+(0 $2#(%+$+*(1 $*4#2, # 2#(0' *. 0*#/% #(, '(,%� C �"'%' 0*#/% #(, '(,% )#( +()/9,'� #3*(0%$ *$"'2%� $"' 2'%$*2#$+*( *. $"' -29/' *. /#41I E9,+)+#/ 2'$2+&9$+*( ,'%+0(', $* )*9($'2 # )9/$92' *. +3�9(+$7I 2')*3�'(%' #(, $"' 2'%$*2#$+*( *. ,+0(+$7 $* 6+)$+3%I 2'.*23 *. +(%$+$9$+*(%I %*)+#/ #(, �*/+$+)#/ -2')*()+/+#$+*(1I -(#$+*(�&9+/,+(01 #(, $"' 2'�)*(%$+$9$+*( *. $"' �#%$ *( $"' &#%+% *. # -%"#2', (#22#$+6'1� "+/' *.$'( )*3�/+3'($#27� $"'%' 0*#/% )#( *.$'( &' +( $'(%+*( 4+$" '#)" *$"'2 #(, $"' 6#2+*9% 3'#(% '3�/*7', $* �92%9' $"'3 A4"'$"'2 +( $'23% *. 4#2 )2+3'% $2+#/%� $29$" )*33+%%+*(% *2 %*3' .*23 *. 2'�#2#$+*(B 3#7 �2+*2+$+F' %*3' #$ $"' '<�'(%' *. *$"'2%� (,'',� *(' *. $"' 5'7 G9'%$+*(% $"#$ ('',% $* &' '<�/*2', +% "*4 $* #6*+, $"' �*$'($+#/ �2*&/'3 *. ,'(7+(0 *2 /+3+$+(0 2'#/ '(0#0'3'($ #(, #0'()7 4+$" %9)" 3')"#(+%3% $* # �*�9/#$+*( $"#$ "#% &''( %9&E')$ $* 7'#2% ��C � �2,*7(' �*33'3*2#$+*( :2*E')$� !�� ���8 ��� )�� �� �� �� A����BI :� �9(,7 #(, �� �)8*6'2(� $ �� ����� <�� ��������� � ��� $ ������ 3�� � �� � A����B ; �!� � �'' K"$$��DD444�0%,2)�*20D0*D$*�+)�09+,'%DE9%$+)'D$2#(%+$+*(#/�E9%$+)'L� C ��8� �'+$'/� �������� ��� * ����� A����B ;�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ *. 6+*/'($ )*(./+)$� �'6'2$"'/'%%� +( )"#2$+(0 $"' ,+..+)9/$ �#$" A#% �#2$"# �+(*4 �9$ +$B &'$4''( -$** 39)" 3'3*27 #(, $** 39)" .*20'$$+(01� $"'%' 6#2+*9% #��2*#)"'% #(, '(,% *. $2#(%+$+*(#/ E9%$+)' %"#2' # )*33*( .'#$92' +( $"#$ $"'7 -,'�#2$ .2*3 ,*+(0 (*$"+(01 +( ,'#/+(0 4+$" $"' #.$'23#$" *. 3#%% 6+*/'()'� � �9$ 4"'(� 4"7� #(, "*4 "#% $"+% +,'# *. (* /*(0'2 -,*+(0 (*$"+(01 #&*9$ $"' /'0#)7 *. #$2*)+$7 #(, 4"*/'%#/' "93#( 2+0"$% 6+*/#$+*(% '3'20',J "+/' �*( �/%$'2 �'2%9#%+6'/7 #209'% $"#$ $2#(%+$+*(#/ E9%$+)' )#( &' ,#$', &#)5 $* $"' &+2$" A+( )/#%%+)#/ �$"'(%B *. ,'3*)2#)7 +$%'/.� 3*,'2( )*()'�$+*(% *. $2#(%+$+*(#/ E9%$+)' '3'20' 4+$" $"' )*()'2$', '..*2$% $* '(%"2+(' +($'2� (#$+*(#/ /#4 #$ $"' "'#2$ *. +($'2�%$#$' 2'/#$+*(% +( $"' 4#5' *. $"' �')*(, *2/, #2� ! �% �9$+ �'+$'/ #209'%� $"' "'7,#7 *. �*%$�4#2 $2#(%+$+*(#/ E9%$+)' 4#% 3#25', &7 #( -'<)'�$+*(#/ #(, +($'2(#$+*(#/1 #��2*#)"� �"+% 4#% 3*%$ '6+,'($ +( $"' �2*/+.'2#$+*( *. 5'7 +($'2(#$+*(#/ $2'#$+'%� %9)" #% $"' 8'(*)+,' �*(6'($+*( A;!=�B� $"' �(+6'2%#/ ')/#2#$+*( *. H93#( �+0"$% A;!=�B� #(, $"' 8'('6# �*(6'($+*( *( �#4% *. #2 A;!=!B� #(, $"' '#2/7 #$$'3�$% $* +(%$+0#$' # 2'0+3' *. +($'2(#$+*(#/ )2+3+(#/ #))*9($#&+/+$7 +( $"' 4#2 $2+#/% "'/, +( �92'3&920 #(, �*57*� H*4'6'2� +$ 4#% *(/7 .*//*4+(0 $"' '(, *. $"' �*/, #2� ,2+6'( .+2%$ &7 (#$+*(�&9+/,+(0 �*/+$+)#/ $2#(%+$+*(%� $"'( &7 0/*&#/+F#$+*( #(, $"' 02*4+(0 +3�*2$#()' 0+6'( $* )*(./+)$ 2'%*/9$+*( %$2#$'0+'%� $"#$ -$2#(%+$+*(#/ E9%$+)' 3*6'% .2*3 $"' '<)'�$+*( $* $"' (*23 $* &')*3' # �#2#,+03 *. 29/' *. /#41� ;� ( %+3+/#2 6'+(� :2+%)+//# H#7('2 "#% "+0"/+0"$', $4* 5'7 .#)$*2% $"#$ "#6' %$+39/#$', $"+% 3*2' 2')'($ 02*4$" *. +($'2'%$ +( $2#(%+$+*(#/ E9%$+)'� �+2%$� $"' )+2)93%$#()'% *. $2#(%+$+*(#/ %*)+'$+'% $"'3%'/6'% #(,� %')*(,� $"' +()2'#%', �9&/+) +($'2'%$ #(, +($'2� (#$+*(#/ '<�')$#$+*( $"#$ #))*9($#&+/+$7 +% ,9' #.$'2 #$2*)+$7� ;; �"' 2'%9/$ "#% &''( # 02'#$'2 .*)9% *( $"' +%%9'% .#)+(0 %*)+'$+'% '3'20+(0 .2*3 6+*/'($ )*(./+)$ 9(,'2$#5'( &7 # 4+,' 2#(0' *. +($'2(#$+*(#/ #)$*2%� +()/9,+(0 2'0+*(#/ #(, (*(�0*6'2(3'($#/ *20#(+F#$+*(% A�8�%B� +($'2(#$+*(#/ .+(#(� )+#/ #(, *$"'2 +(%$+$9$+*(% #(,� *. )*92%'� $"' �(+$', �#$+*(%� ( $"+% �2*)'%%� /'0#/ $"'*2+'%� �2#)$+)'%� #(, +(%$+$9$+*(% "#6' )*3' $* &' 6+'4', #% +()2'#%+(0/7 )'($2#/ +( .#)+/+$#$+(0 #(, %"#�+(0 $2#(%+$+*(� *.$'( $"'3%'/6'% .2#3', &7 4"#$ #2' )*()'+6', #% -9(+6'2%#/1 )*()'�$+*(% *. E9%$+)'� �'2$#+(/7 $"' +($'2(#$+*(#/ )*339(+$7 A#(, %�')+.+)#//7 $"' �(+$', �#$+*(%B "#% +()2'#%+(0/7 '3&2#)', #(, '3�/*7', $2#(%+$+*(#/ E9%$+)' ,+%)*92%'% #(, 3')"#(+%3% +( +$% +($'26'($+*(% +( -�*%$�)*(./+)$1 %+$9#$+*(%� ��� � �� �+(*4� +������ =�� ����� ��� 9 � �������8 9���� 2��� �� ����� >�� ���� ��� ?��� =� ����� A;!!�B =� ! �� �/%$'2� $� ��� ��� + ��8 �������� ��� * ����� �� 2��� ����� ���������� A���=BI ��8� �'+$'/� -�2#(%+$+*(#/ �9%$+)' 8'('#/*071 A����B ;� 2������ 2 ��� 3� ��� *� �! !=� ;� �'+$'/� +,�� �� C;� ;; :� H#7('2� -�9%$+)' +( �2#(%+$+*(� �"#//'(0'% #(, ���*2$9(+$+'%1� �2'%'($#$+*( $* ��$" �((9#/ : D�8� �*(.'2'()'� -�'&9+/,+(0 �*)+'$+'% �3'20+(0 .2*3 �*(./+)$� � �"#2', �'%�*(%+&+/+$71 A����B ; ;�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �"' �')2'$#27 8'('2#/ *. $"' �(+$', �#$+*(%� ?*.+ �((#(� +( "+% 2'�*2$ $* $"' �')92+$7 �*9()+/ +( �909%$ ���=� #)5(*4/',0', $"#$ $"'2' "#, &''( #( +()2'#%', .*)9% &7 $"' �(+$', �#$+*(% *( G9'%$+*(% *. E9%$+)'� $2#(%+$+*(#/ E9%$+)'� #(, $"' 29/' *. /#4 +( )*(./+)$ #(, �*%$�)*(./+)$ %*)+'$+'%� ;� H' (*$'% $"#$ ,+2')$ �� +(6*/6'3'($ +( �*%$�)*(./+)$ %*)+'$+'% "#% &''( )"#2#)$'2+F', &7 $"' +3�*2$#$+*( *. $2#(%+$+*(#/ E9%$+)' #��#2#$9%� .*2 '<#3�/'� +( ?*%*6* #(, �+3*2��'%$'� 4"'2' $"' �� "#% &''( ,+2')$/7 +(6*/6', +( $"' #,3+(+� %$2#$+*( *. E9,+)+#2+'%� �*/+)'� #(, �2+%*( %'26+)'%� ( *$"'2 )*9($2+'% A%9)" #% �/ �#/6#,*2� 89#$'3#/#� �*$' ,1 6*+2'� �+&'2+#� #(, H#+$+B 5'7 29/' *. /#4 )*3�*('($% "#6' &''( ,'6+%', &7 �(+$', �#$+*(% -'<�'2$%1� ;� (,'',� +( "+% 2'�*2$� $"' �')2'$#27 8'('2#/ �2*6+,'% # ,'.+(+$+*( *. $2#(%+$+*(#/ E9%$+)' $"#$ '3�"#%+F'% $"' '<�#(%+6' 2*/' '(6+%#0', .*2 $2#(%+$+*(#/ E9%$+)' +,'#%� #��2*#)"'%� #(, 3*,'/%� ;= �(+$', �#$+*(% 29/' *. /#4 #(, $2#(%+$+*(#/ E9%$+)' *�'2#$+*(% "#6' 4*25', $* %$2'(0$"'( ,*3'%$+) /#4 '(.*2)'3'($ #(, E9%$+)' +(%$+$9$+*(%� .#)+/+$#$' (#$+*(#/ )*(%9/$#$+*(% *( E9%$+)' 2'.*23� )**2,+(#$' +($'2(#$+*(#/ 29/' *. /#4 #%%+%$#()'� 3*(+$*2 #(, 2'�*2$ *( )*92$ �2*)'',+(0%� $2#+( (#$+*(#/ E9%$+)' %')$*2 *..+)+#/%� %9��*2$ /*)#/ E9,+)+#/ 2'.*23 &*,+'%� #(, #,6+%' "*%$�)*9($27 29/' *. /#4 +(%$+$9$+*(%� �"'7 "#6' #%%+%$', +( 6'$$+(0 #(, %'/')$+(0 (#$+*(#/ �*/+)'� E9,0'%� #(, �2*%')9$*2%� ,2#.$+(0 ('4 )*(� %$+$9$+*(%� 2'6+%+(0 /'0+%/#$+*(� ,'6'/*�+(0 *3&9,%3#( +(%$+$9$+*(% #(, "93#( 2+0"$% )*33+%%+*(%� &9+/,+(0 )2+3+(#/ ,'.'()' /#47'2%1 ('$4*25%� '%$#&/+%"+(0 /'0#/ #+,� #(, %'$$+(0 9� /'0#/ $2#+(+(0 +(%$+$9$'%� �*%$ (*$#&/7� 3+%%+*(% "#6' #%%+%$', "*%$ )*9($2+'% $* #,,2'%% �#%$ "93#( 2+0"$% #&9%'% &7 '%$#&/+%"+(0 $2+&9(#/%� $29$" #(, 2')*()+/+#$+*( 3')"#(+%3%� #(, 6+)$+3 2'�#2#$+*( �2*02#33'%� ;� ( 2')'($ 7'#2% $"' +(+$+#$+6'% "#6' '<�#(,', '6'( .92$"'2 $* +()/9,' 3'$"*,% .*2 2'+($'02#$+*( *. ,+%�/#)', )+6+/+#(% #(, 2'"#&+/+$#$+*( *. .*23'2 )*3&#$#($%I /'0#/ ',9)#$+*( $2#+(+(0 #(, %9��*2$ .*2 $"' *20#(+F#$+*( *. $"' /'0#/ )*339(+$7I /'0#/ #+,I +(,+0'(*9% #(, +(.*23#/ $2#,+$+*(% .*2 #,3+(+%$'2+(0 E9%$+)' *2 %'$$/+(0 ,+%�9$'% #(, .#)+/+$#$+(0 2')*()+/+#$+*(� ;� �* #%%+%$ +( $"+% '(,'#6*92� $2#(%+$+*(#/ )*,'%� 09+,'/+('%� #(, 29/' *. /#4 �*/+)7 $**/% "#6' &''( ,'6+%',� �"' �..+)' *. $"' �� H+0" �*33+%%+*('2 .*2 H93#( �+0"$% A�H�H�B 2')'($/7 2'/'#%', 3 ��� ����� � �� � � ��� ��! ;� �� �')2'$#27�8'('2#/� ��� � �� � ��� ��� �������� ��� � ����� �� � ������ ��� � ��� � ������ � ������� A���=B �� *)� �D���=D�;�� #$ =� ;� +,�� #$ ��� � �� ;= �2#(%+$+*(#/ E9%$+)' +% ,'.+(', #% )*3�2+%+(0 A+,�� #$ �� =B� $"' .9// 2#(0' *. �2*)'%%'% #(, 3')"#(+%3% #%%*)+#$', 4+$" # %*)+'$71% #$$'3�$% $* )*3' $* $'23% 4+$" # /'0#)7 *. /#20' %)#/' �#%$ #&9%'%� +( *2,'2 $* '(%92' #))*9($#&+/+$7� %'26' E9%$+)' #(, #)"+'6' 2')*()+/+#$+*(� �"'%' 3#7 +()/9,' &*$" E9,+)+#/ #(, (*(�E9,+)+#/ 3')"#(+%3%� 4+$" ,+..'2+(0 /'6'/% *. +($'2(#$+*(#/ +(6*/6'3'($ A*2 (*(' #$ #//B #(, +(,+6+,9#/ �2*%')9$+*(%� 2'�#2#$+*(%� $29$"� %''5+(0� +(%$+$9$+*(#/ 2'.*23� 6'$$+(0 #(, ,+%3+%%#/%� *2 # )*3&+(#$+*( $"'2'*.� ;� +,�� #$ ��� � �� ;� +,�� #$ �� ;�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ � ������ (������ ;C �"'%' 09+,'/+('% #2' $"' .+2%$ +( # %'2+'% *. �9&/+%"', 3#$'2+#/% ,'%+0(', $* "'/� �(+$', �#$+*(% .+'/, 3+%%+*(% #(, #,3+(+%$2#$+*(% '3'20+(0 .2*3 )*(./+)$ $* '%$#&/+%" /#4 #(, $* #,,2'%% $29$" #(, 2')*(� )+/+#$+*( +%%9'%� �"' $**/% 4+// &' ,+%$2+&9$', $* �(+$', �#$+*(% 3+%%+*(% #2*9(, $"' 4*2/, #(, +()/9,' 3#$'2+#/% %9)" #% 09+,'%� 3#(9#/%� #(, "#(,� &**5% .*2 +(,+0'(*9% �'*�/'%� 3+(*2+$+'%� �2*.'%%+*(#/ 02*9�%� ',9)#$+*(#/ +(%$+$9$+*(%� #(, '6'( �#2#3+/+$#27 02*9�%� ( #,,+$+*(� $"' �(+$', �#$+*(% +% ,'6'/*�+(0 #( +($'2(#$+*(#/ 2*%$'2 *. -'<�'2$%1 4"* )#( &' ,2#4( 9�*( $* �2*6+,' #%%+%$#()' +( �*%$�)*(./+)$ )*9($2+'% $* '%$#&/+%" $2#(%+$+*(#/ E9%$+)' �2*)'%%'%� 2'%$*2' %"#$$'2', E9%$+)' %7%$'3%� #(, 2'&9+/, $"' 29/' *. /#4� �7 .#2 $"' 3*%$ �*�9/#2 $2#(%+$+*(#/ E9%$+)' 3')"#(+%3 "#% &''( $29$" )*33+%%+*(%� �+()' $"' '#2/7 ;!C�% $"'2' "#% &''( # �2*/+.'2#$+*( *. $29$" )*33+%%+*(% 6#27+(0 +( 2'3+$ #(, %$7/' +( )*9($2+'% #% ,+6'2%' #% �0#(,#� �20'($+(#� 89#$'3#/#� �*9$" �.2+)#� 8"#(#� �#%$ �+3*2� #(, �*2*))*� $* 3'($+*( &9$ # .'4� ;� �"' 2#$+*(#/' .*2 +(+$+#$+(0 $29$" )*33+%%+*(% %$'3% .2*3 # ,'%+2' 4+$"+( �*%$�)*(./+)$ %*)+'$7 $* 9()*6'2 -$"' $29$"1 #&*9$ �#%$ +(E9%$+)'% #(, 42*(0,*+(0 $"#$ +( 3#(7 )#%'% "#% &''( ,'/+&'2#$'/7 -%+/'()',1� �"+% +% *.$'(� &9$ (*$ #/4#7%� /+(5', $* #9$"*2+$#2+#( 2'0+3'% 4"'2' $"'2' "#% &''( # &2'#5,*4( +( $"' 29/' *. /#4 #(, 4"'2' "93#( 2+0"$% #&9%'% "#6' &''( )#22+', *9$ 4+$" +3�9(+$7� 8'('2#//7� $29$" )*33+%%+*(% #2' *..+)+#//7 %#()$+*(', �2*)'%%'% 9%9#//7 +(+$+#$', &7 #( +()*3+(0 ('4 2'0+3' %''5+(0 $* 3#5' # -.2'%" %$#2$1 #(, &2'#5 4+$" $"' �#%$� � 02*4+(0 (93&'2 *. )*33'($#$*2% #2' *. $"' *�+(+*( $"#$ ,2#4+(0 # /+(' 9(,'2 $"' �#%$ +% (*$ # 6+#&/' *�$+*( .*2 %9)" )*9($2+'% #(, #209' $"#$ $29$" )*33+%%+*(% )#( &2+(0 �*%+$+6' &'('.+$% +()/9,+(0 -)/*%92'1� -"'#/+(01� -2')*()+/+#$+*(1 #(, 3#7 #%%+%$ %*)+'$7 +( 0'('2#/ $* 3*6' .*24#2, &7 4*25+(0 $"2*90" # 6+*/'($ �#%$� �(,'2�+((+(0 $"+% +% $"' )'($2#/+$7 *. -0+6+(0 6*+)'1 *2 '(#&/+(0 6+)$+3% $* -$'// $"'+2 %$*271� )*9�/', 4+$" $"' �2#)$+)#/ +%%9' *. �2*6+,+(0 2'�#2#$+*(% .*2 6+)$+3% #(, # 2'%$*2#$+6' 2#$"'2 $"#( 2'$2+&9$+6' )*()'�$+*( *. E9%$+)'� ;! �"'2' #2' #/%* (93'2*9% )2+$+)+%3% *. $29$" )*33+%%+*(% (*$ /'#%$ $"#$ $"'7 2'*�'( */, 4*9(,% #(, 3#7 0'('2#$' .92$"'2 �*/#2+F#$+*(I -$"' $29$"1 ,'/+6'2', +% *.$'( �#2$+#/ #(, /+3+$',I $"'+2 -$*��,*4(1 (#$92' )#( 3#20+(� �C� ;C �H�H�� 3 ��� ����� � �� � � ���� ������ (����� A����B� ;� :� H#7('2� )���������� �� ���8 9���� ��� $������ � � �� �� $ ������ �� A����BI �� ?2+$F A',�B� �������� ��� * ������ 2 � 1��� �� '�� ������� 3��� � ���� 9 ���� 3� ����� � �� @ A;!!�B� ;! �"' /+$'2#$92' *( $"' �2*% #(, )*(% *. $29$" )*33+%%+*(% +% 6#%$I %''� .*2 '<#3�/'� �� �+00#2 A',�B� + ���� ��� ���8 ?���� ���� ��� ' �� * ����� ����� $���� $ ������ A����BI H#7('2� +,�I �� ?2+$F� - "'2' 4' #2' #(, "*4 4' 0*$ "'2'� �( �6'26+'4 *. '6'/*�3'($% +( $"' �'#2)" .*2 �9%$+)' #(, �')*()+/+#$+*(1 +( ��� 5� ��� � !� ��8 $ ��� ���� ��� ���� 9���� ��� 9 � ��� ',� ��H� H'(5+( A����BI �� �#(+� +�� �� 3����� �� �8 (����� * ����� �� ��� (��� � � ;�� A����BI �� �')2'$#27�8'('2#/� *�� )+$�� (� ;�I :� �'+/%� -�')*()+/+#$+*( +( 89#$'3#/#� $"' 2*/' *. +($'//+0'($ E9%$+)'1 A����B == 3��� ��� $���� �� �!I ���� +/%*(� ��� ������ � �� �� ��� 3�� �������� � �� ( �� !�����8 5� �������� ��� ���!�������� (���� A���;B� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ #/+F' 6+)$+3%� #(, $"'2' #2' *.$'( 9(�#/#$#&/' $2#,' *..% &'$4''( $29$" #(, E9%$+)' *( $"' *(' "#(, #(, %$#&+/+$7 #(, �2#03#$+) �*/+$+)% *( $"' *$"'2� �*2'*6'2� $"'7 $'(, $* "#6' # (#22*4 .*)9% ,4'//+(0 9�*( +(,+6+,9#/ 6+*/#� $+*(% 2'%9/$+(0 +( $"' '<)/9%+*( *. # 2#(0' *. %*)+*�')*(*3+) +(E9%$+)'%� �� �*2' 2')'($/7 #$$'($+*( "#% $'(,', $* .*)9% *( $"' )*339(+$7 ,+3'(%+*( *. )*(./+)$ #(, $"' )*(.+(', #(, ,'/+3+$', (#$92' *. /*)#/ *4('2%"+� #(, �#2$+)+�#$+*( +( -$*��,*4(1 �2*)'%%'%� ()2'#%+(0/7 �*/+)7 3#5'2%� #)#� ,'3+)%� #(, �2#)$+$+*('2% #2' G9'%$+*(+(0 $"' �2*&/'3#$+) (#$92' *. $"' -*('� %+F' .+$% #//1 #��2*#)" #(, #2' )*(%)+*9% *. $"' 6#/9' *. #(, ('', $* /+%$'( $* #(, "'', /*)#/ �'*�/' +( *2,'2 $* ,'6'/*� /*)#//7 *4(', �2*)'%%'%� �; �/'#2/7 $"'2' "#6' &''( 3#(7 +(%$#()'% 4"'2' -*..+)+#/ $29$"�$'//+(01 "#% &''( )2+$+)#/ +( -0+6+(0 6*+)'1 $* 6+)$+3%� 9('#2$"', �#%$ #&9%'%� &2*90"$ �'2�'$2#$*2% $* E9%$+)'� #(, �2*3*$', 2'#/ �2*02'%%+6' %*)+#/ )"#(0'� H*4� '6'2� $"'2' +% (*$ 9(+6'2%#/ #02''3'($ *( $"' 3'2+$% #(, *9$)*3'% *. %9)" �2*)'%%'%� �*2 '<#3�/'� 4"+/' 2')*0(+F+(0 +$% 3#(7 %$2'(0$"% #(, &'('.+$%� )2+$+)% *. #%�')$% *. $"' �*9$" �.2+)# �29$" #(, �')*()+/+#$+*( �*33+%%+*( "#6' +//9%$2#$', "*4 &*$" $"' �"2+%$+#(�+(%�+2', '$"*% *. -2')*()+/+#$+*(1 #(, $"#$ *. -2#+(&*4 (#$+*(�&9+/,+(01 �2')/9,', )'2$#+( $"+(0% &'+(0 %#+, &7 $"' 2'/#$+6'% *. 6+)$+3% #(, $"*%' 4"* "#, &''( $*2$92', &7 $"' #�#2$"'+, 2'0+3'� �#2$+)9/#2/7 +( $"' �9&/+) "'#2+(0%� �� �*3' "#6' #209', $"#$ $"+% /', $* # .*23 *. -%')*(,�*2,'2 $2#93#$+%#$+*(1� �2*&#&/7 ,*+(0 3*2' +(,+6+,9#/ "#23 $"#( 0**,� �� �"' 5'7 G9'%$+*( +%� "*4 )#( 3')"#(+%3% *. $2#(%+$+*(#/ E9%$+)' #(, -$29$"�$'//+(01 &' .2#3', +( *2,'2 $* #6*+, %9)" #( *9$)*3' #(, '(%92'� +( 3*2' 0'('2#/ $'23%� $"#$ 2'#/ �*/+$+)#/ '(0#0'3'($ #(, #0'()7 +% (*$ ,'(+', $* # �*�9/#$+*( $"#$ "#% &''( %9&E')$ $* 7'#2% *. 6+*/'($ )*(./+)$ #(,D*2 #9$"*2+$#2+#(+%3J � )*339(+$7�&#%', #��2*#)" $* -$29$"�$'//+(01 +% 9(,'2%$**, +( $"+% #2$+)/' #% *(' +( 4"+)" ,')+%+*(�3#5+(0 *6'2 $"' ,'%+0(� 2'3+$� )*(,9)$� )"#2#)$'2� #(, *9$)*3'% *. $"' -$29$"�$'//+(01 �2*)'%% +% *20#(+F', +(� 4+$"� #(, &7 3'3&'2% *. # 0+6'( )*339(+$7� $ %"*9/, &' +(.*23', &7 2'%'#2)" 3'$"*,*/*07 �#2#,+03% .2*3 &*$" �#2$+)+�#$*27 #)$+*( 2'%'#2)" A:��B #(, )*//#&*2#$+6' *2#/ "+%$*27 3*,'/%� H*4'6'2� $"'*2+%$% #(, �2#)$+$+*('2% %"*9/, &' 3+(,.9/ $"#$ $"' 6+2$9'% *. %9)" #( #��2*#)" #2' 3#$)"', &7 �*$'($+#/ �2*&/'3%� �= $ +% +( $"+% )*($'<$ $"#$ #( #(#/7%+% *. $"' �C; �� �#(+� +,� �; �'$$%� *�� )+$�� (� �� �� �� H#3&'2� -�+0"$% #(, �'#%*(%� �"#//'(0'% .*2 �29$" �')*6'27 +( �*9$" �.2+)# #(, �*2$"'2( 2'/#(,1 A����B �� 9 ����� ��������� ��� 5�� *� ;�C= !=I +/%*(� *�� )+$�� (� ;!� �� �� �#( ,'2 #/$� �� �2#()"+� #(, 8� �$'6'(%� -�"' �*9$" �.2+)#( �29$" #(, �')*()+/+#$+*( �*33+%%+*(� --�#)'11� "+%$*2+)#/ )*3�2*3+%' #(, $2#(%+$+*(#/ ,'3*)2#)71 A����B �C ��������� ��� *� � ������ �� ��� 3����� �� ��; �C� �= :� �9(,7 #(, �� �)8*6'2(� -� �2*E#( H*2%'J �29%$ #(, �(+*(+%$ �$$+$9,'% $* �29$" �')*6'27 :2*)'%%'% +( �*2$"'2( 2'/#(,1 A���CB ��������� ��� *� � �������� ��� * ����� ,*+�;��;�!�D+E$ED+E3��!I �9(,7 #(, �)8*6'2(� *�� )+$� A����B� (� �I �9(,7 #(, �)8*6'2(� *�� )+$�� (� �� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �*%%+&/' 2*/' *. )*339(+$7�&#%', -$29$"�$'//+(01 %"*9/, &' �/#)',� ( �'($2#/ #(, �*9$" �3'2+)#� �#2$+)+�#$*27 #)$+*( 2'%'#2)" �2*E')$% %9)" #% :"*$*�*+)' "#6' �2*6+,', #( *��*2$9(+$7 .*2 )*339(+$+'%� 02*9�%� #(, +(,+6+,9#/% $* )2'#$' # -�9&/+) $'%$+3*(71 *. $"'+2 '<�'2+'()'%� �� H'2' # -%$*27$'//+(01 �2*)'%% "#% "#, $4* 3#+( #+3%� �"' .+2%$ +% $* +(%$+0#$' #( #��2*�2+#$' -)*($'<$ .*2 02+'6+(01� �"' %')*(, +% $* #//*4 6+)$+3% *. %$#$' 6+*/'()' $* -)2'#$' # %"#2', %$*271 #2*9(, 6+*/'($ '6'($% $"#$ "#, �2'6+*9%/7 &''( -%+/'()',1� �� �9)" �2*E')$% "#6' )*3&+(', 4+$" 4+,'2 -$29$"�$'//+(01 +(+$+#$+6'% A%9)" #% $"' �"92)"�%�*(%*2', ��H� �'�*2$ #(, $"' %9&%'G9'($ %$#$'�%�*(%*2', 89#$'3#/#( H+%$*2+)#/ �/#2+.+)#$+*( �*33+%%+*(B #(, *$"'2 .*23% *. ������ �� 4*25� �C :'2"#�% $"' 3*%$ 4'//�2'0#2,', #(, )*3�2'"'(%+6' /*)#/+F', *2 )*3� 39(+$7 �*%$�)*(./+)$ E9%$+)'�3#5+(0 +(+$+#$+6' +% $"' -)9%$*3#27 )*92$%1 *. $"' >����� +( �4#(,#� �*2 3#(7� +$ "#% "#, # 2#(0' *. �*%+$+6' &'('.+$% #(, �2*6+,', 9%'.9/ /'%%*(% .*2 '/%'4"'2'� �� �"' ;!!= 0'(*)+,' /'.$ #( #��#� 2'($/7 +(%923*9($#&/' #(, ,'6#%$#$+(0 /'0#)7 +( +$% 4#5'� �"' %"''2 %)#/' *. 4"#$ "#, $#5'( �/#)'� 4+$" #2*9(, # 3+//+*( ,'#,� #(, $"' )*33+$3'($ $* #)"+'6' %*3' .*23 *. #))*9($#&+/+$7 +( 2'/#$+*( $* #// $"*%' +(6*/6', #% �'2�'$2#$*2% A4"+)" )*9/, #3*9($ $* #% 39)" #% # $"+2, *. $"' #,9/$ �*�9/#$+*(B �/#)', #( +3�*%%+&/' &92,'( *( $"' '%$#&/+%"', �4#(,#( E9,+)+#/ %7%$'3 #(, $"' ('4/7 +(%$+$9$', ($'2(#$+*(#/ �2+3+(#/ �2+&9(#/� �! $ 4#% 4+$"+( $"+% )*($'<$ $"#$ $"' >����� )*92$%� +(%�+2', &7 -$2#,+$+*(#/ ,+%�9$' 2'%*/9$+*( 3')"#(+%3%1� "#6' &''( %'$ 9�� �� �% +//+#3 �)"#&#% (*$'%� +( #$$'3�$+(0 $* *6'2$"2*4 -,')#,'% *. +3�9(+$71 4+$" # )*33+$3'($ $* -/'#6+(0 (* %'2+*9% )2+3' 9(�9(+%"',1� �4#(,# +% #,*�$+(0 # -6'27 ,')'($2#/+%', %7%$'3 *. E9%$+)' #,3+(+%$'2', &7 (*(��2*.'%%+*(#/% #$ $"' /*)#/ /'6'/1 $"#$ )*9/, -%$#(, #% #( '<#3�/' .*2 *$"'2% 4"* )/#+3� +( $"' �*%$� )*(./+)$ '(6+2*(3'($� $"#$ /#20'�%)#/' �2*%')9$+*( +% +3�*%%+&/'1� �; �'$� '6'( "'2'� )2+$+)+%3% 2'3#+(� H*4'6'2 &*/, $"+% '<�'2+3'($ +( 3#%% #))*9($� #&+/+$7 3#7 &'� $"'2' #2' )*()'2(% $"#$ �*�9/#2 �#2$+)+�#$+*( #(, $"' ('',% *. �C� �� ���� �75'%� -�)$+6+%$ :#2$+)+�#$*27 �'%'#2)" #3*(0 $"' �#7# *. 89#$'3#/#� )*(%$29)$+(0 3'#(+(0% .2*3 %+$9#$', 5(*4/',0'1 A;!!CB �� *� � ( ���� ��� �� C�� =�� �� ���� �75'%� -�2'#$+6' #2$% #(, �"*$*02#�"7 +( :#2$+)+�#$*27 �)$+*( �'%'#2)"1 +( 2���� � � !��� � 3�������8 ������������ ��� ��� ��� �������� ',%� :� �'#%*( #(, H� �2#,&927 A���;B ���� �C 8� 890'/&'20'2� ��� 3��� ���� 8 ������ ���� '��� ��� ��� 5���� !������ A;!!�BI :� H#7('2� )���������� �� ���8 $ ��� ���� (���� ���� � ��� !�� ���� A���;BI �')*6'27 *. H+%$*2+)#/ �'3*27 :2*E')$ A��H� B� > �������� "���� ! ���A8 ��� 4������� 3�� �� � ��� 2 ��� 3� ��� 4������ !����� ���� � > ������� A;!!!B� �� �'' .*2 '<#3�/'� � �)"#&#%� -8'(*)+,' �2+#/% #(, 8#)#)# �*92$%1 A����B � *� � ��������� ��� $������� * ����� �C! !�� �! +,� �� �� ?+25&7� -�4#(,#1% 8#)#)# �*92$%� � :2'/+3+(#27 �2+$+G9'1 A����B �� *� � !������ 5�� != ;;C� �; �)"#&#%� *�� )+$�� (� ��� �� �!�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ 6+)$+3% #2' .#2 /'%% # �2+*2+$7 $"#( 3#7 .+2%$ #��'#2� �� :'2"#�% 3*2' 4*227+(0/7� +$ "#% &''( %900'%$', $"#$ '/+$' �*/+$+)#/ +($'2'%$% "#6' &''( -�'26#%+6' #$ '6'27 /'6'/ *. *�'2#$+*( *. �4#(,#1% $2#(%+$+*(#/ E9%$+)' %7%$'31 2'%9/$+(0 +( # �2*)'%% ,'%+0(', $* -/'0+$+3#$' �9$%+ ,*3+(#()' M$"#$N "#% 9(,'23+(', E9%$+)'1� �� �$"'2% "#6' '<�2'%%', )*()'2( $"#$ $"+% 9%' *. >����� #% # 6'"+)/' $* )*(%*/+,#$' 0*6'2(3'($ �*4'2 #/%* 2'+(.*2)'% 9('G9#/ �*4'2 2'/#$+*(% #(, #))'($9#$'% $"' %+/'()+(0 *. $"' 3*%$ 69/('2#&/' +( %*)+'$7� �= "+/' $"'2' 3#7 $"'2'.*2' &' 39)" $"#$ )#( &' /'#2($ .2*3 $"' >����� 3*,'/� +( 4"#$ +% #( 9(G9'%$+*(#&/7 ,+..+)9/$ )*($'<$ +( 4"+)" $* '%$#&/+%" # ('4 2'0+3' *. 2+0"$% #(, �#2$+)+�#$+*(� $"' /'%%*(% +$ "*/,% .*2 02#%%2**$% #��2*#)"'% $* $2#(%+$+*(#/ E9%$+)' 3#7 (*$ *(/7 &' $"' 2'%9/$ *. +$% #��#2'($ �*%+$+6' �*$'($+#/� &9$ *. +$% �2*&/'3% $**� ����� � �� �� ���� �� �*2 3#(7� 2')'($ 7'#2% "#6' %''( $"' +()2'#%', #��2*�2+#$+*( *. $"' /#(09#0' *. -"93#( 2+0"$%1 #(, -$2#(%+$+*(1 #% �#2$ *. #( '%%'($+#//7 9(+/#$'2#/+%$ 0/*&#/ �2*E')$ *. -,'3*)2#)7 �2*3*$+*(1� �"' ,*3+(#($ �#2#,+03 .*2 9(,'2� %$#(,+(0 ,'3*)2#$+F#$+*( 4+$"+( $"' +($'2(#$+*(#/ )*339(+$7 '3&2#)', $"' #%%93�$+*( $"#$ $"' 3*6' #4#7 .2*3 ,+)$#$*2+#/ 29/' A'6+,'($ +( 3#(7 �#2$% *. $"' 4*2/, +( $"' �#%$ �� 7'#2%B $#5'( #% $"' '%%'()' *. $2#(%+$+*(#/ %*)+'$+'%� +(6#2+#&/7 +(6*/6'% ,'3*)2#$+F#$+*(� -�2#(%+$+*(1� #% (*23#//7 )*()'+6', 4+$"+( $2#(%+$+*(#/ E9%$+)' $"'*27� $'(,% $* +(6*/6' # �#2$+)9/#2 #(, /+3+$', )*()'�$+*( *. ,'3*)2#$+F#$+*( #(, ,'3*)2#)7 &#%', *( /+&'2#/ #(, '%%'($+#//7 '%$'2( .*239/#$+*(% *. ,'3*)2#)7� �*2'*6'2� $"' #%%93�$+*( $"#$ -$2#(%+$+*(1 +3�/+'% # 3*6' #4#7 .2*3 ,+)$#$*2%"+� #(, $* ,'3*)2#)7 +0(*2'% $"' �2*&/'3 $"#$ "93#( 2+0"$% #&9%'% 3#7 )*($+(9' $* $#5' �/#)' +( )+2)93%$#()'% 4"'2'� +( $"'*27 #$ /'#%$� $"' (*23% *. /+&'2#/ ,'3*)2#$+) #))*9($#&+/+$7 �2'6#+/� �� $ #/%* $"'2'.*2' �'23+$% # 2#,+)#/ )2+$+G9' *. +3�/+)+$ /+&'2#/ 6'2%+*(% *. $2#(%+$+*( $"#$ 3#7 *$"'24+%' %$2900/' $* ,'#/ 4+$" $"' %9&6'2%+*( *. $"' 29/' *. /#4� 9(,'2 $"' 09+%' *. /#4 +$%'/.� +( *%$'(%+&/7 /+&'2#/ ,'3*)2#$+) %$#$'%� �"' ,'.+(+$+*( *. E9%$+)' $** $'(,% $* &' (#22*4/7 )*()'+6', #(, /+3+$', $* $"' /'0#/ %�"'2'� �% H'7F'2 "#% (*$',� -E9%$+)' +% #,,2'%%', +( # %5'4',� �#2$+#/ #(, �+')'3'#/ 3#(('2� #% 39)" &7 �2#)$+$+*('2% #% &7 %)"*/#2%� #(, �C� �� ?+25&7� *�� )+$�� (� ��I �'$$%� *�� )+$�� (� �� �� �'$$%� +,�� #$ �� C=!� �= �*3'(� *�� )+$�� (� =I :� �6+(� - +..+)9/$ �"*+)'% +( $"' �'4 :*%$��*(./+)$ �0'(,#� $"' ($'2(#$+*(#/ �*339(+$7 +( �4#(,# #.$'2 $"' 8'(*)+,'1 A���;B �� ����� ; ��� /� ;CC ;�!� �� �� �'//� �� �#3�&'//� #(, �� �OP �*/#P+(� -�9%$+)' +%)*92%' +( �2#(%+$+*(1 A���=B ;� ( ���� ��� 5� �� (� ���� ��� ��I �� �OP �*/#P+( #(, �� �#3�&'//� -�"' :#2#,*< *. �2#(%+$+*( +( �*(./+)$', '3*)2#)+'%1 A����B �C 2 ��� 3� ��� /� ;C� �;�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ $"' #$$'3�$ $* 3#227 �'#)' #(, E9%$+)' #.$'2 )*(./+)$ 2'3#+(% /#20'/7 +()*3� �/'$'�1 �� �#3# �#(+ #209'% $"#$ $"'2' #2' %'6'2' �"+/*%*�"+)#/ #(, )*()'�$9#/ %"*2$)*3+(0% $* $"' 4#7 E9%$+)' $'(,% $* &' 9(,'2%$**, &7 $2#(%+$+*(#/ �*/+)73#5'2% #(, �2#)$+$+*('2%� 4+$" %+0(+.+)#($ �2#)$+)#/ )*(%'G9'()'%� �#$+*(#/ #(, +($'2(#$+*(#/ -�'#)'�&9+/,'2%1� +$ +% %900'%$',� .#+/ $* 2')*0(+F' #(, 2'%�*(, $* $"' )*3�/'<+$+'% *. 2'%$*2+(0 $"' 39/$+�.#)'$', ,+3'(%+*(% *. E9%$+)' +( /*4�+()*3'� 4#2�$*2( %*)+'$+'%� �"' *6'22+,+(0 .*)9% *( 2',2'%%+(0 ,+2')$ +(E9%$+)'% #0#+(%$ +(,+6+,9#/% A+( $"' .*23 *. "93#( 2+0"$% #&9%'%� 4#2 )2+3'%� #(, )2+3'% #0#+(%$ "93#(+$7B $'(,% $* /'#6' $"' +(E9%$+)'% $"#$ )#9%', $"' )*(./+)$ 9($*9)"',� �#$"'2� �#(+ �2*�*%'% #( #/$'2(#$+6'� "*/+%$+)� #(, +($'02#$', #��2*#)" $* )*()'�$9#/+F+(0 E9%$+)' +( $2#(%+$+*(� 4+$" $"2'' ,+%$+()$� &9$ +($'22'/#$', ,+3'(%+*(%� /'0#/� 2')$+.+)#$*27� #(, ,+%$2+&9$+6'� �C "+/' $"' .+2%$ *. $"'%' +% )*()'2(', 4+$" $"' 2'%$*2#$+*( *. $"' 29/' *. /#4� #(, $"' %')*(, 4+$" ,+2')$ "93#( 2+0"$% #&9%'% %9..'2', &7 +(,+6+,9#/%� $"' $"+2, +% ,'%+0(', $* #,,2'%% %$29)$92#/ #(, %7%$'3#$+) +(E9%$+)'% 2'%9/$+(0 .2*3 �*/+$+)#/ #(, ')*(*3+) ,+%)2+3+(#$+*( #(, +('G9#/+$+'% *. 2'%*92)' ,+%$2+&9$+*(� �*2 �#(+� $"' .*)9% *( $"' 2')$+.+)#$*27� +( �#2$+)9/#2� )#( /'#, $* # ('0/')$ *. $"' *$"'2 ,+3'(%+*(% *. E9%$+)'� �"' �*+($ "'2' +% (*$ $* %900'%$ $"#$ "93#( 2+0"$% *2 ,'3*)2#)7 ,* (*$ 3#$$'2� �#$"'2� $"#$ $"' #0'(,# &'+(0 %'$ .*2 $2#(%+$+*(#/ E9%$+)'� #% +$ +% )922'($/7 )*(%$+$9$',� $'(,% $* 3#20+(#/+F' +%%9'%� G9'%$+*(%� #(, #��2*#)"'% $"#$ 3+0"$ '+$"'2 )"#//'(0' $"' .*23% #(, (*23% *. '%$'2( 0*6'2(#()'� *2 +3�/+)#$' ,*3+(#($ 0/*&#/ ')*(*3+) 2'/#$+*(% +( $"' )#9%'% *. )*(./+)$� 2#$"'2 $"#( +$% %*/9$+*(� �#20+(#/+F+(0 ')*(*3+) E9%$+)'� #% 4+$" $"' ,'%+2' $* ,'$'23+(' $"' .*23% #(, /+3+$% *. ,'3*)2#$+F#$+*(� 3+0"$ $"'( &' 9(,'2%$**, #% �#2$ #(, �#2)'/ *. # 4+,'2 -+,'*/*0+)#/ &#$$/'1� �� �"+% #/%*� *. )*92%'� 2#+%'% $"' '6'( $"*2(+'2 -9(+6'2%#/+%3 6%� 2'/#$+6+%31 ,'&#$' +( $"' )*(� )'�$9#/+F#$+*( *. "93#( 2+0"$% #(, E9%$+)'� $* %#7 (*$"+(0 *. $"#$ *6'2 %*6'2'+0($7 #(, $"' E9%$ &#%+% .*2 +($'2(#$+*(#/ +($'26'($+*(� �"'%' +%%9'% )#((*$ &' ,'#/$ 4+$" %9&%$#($+#//7 "'2'� H*4'6'2� 4"#$ )#( &' %#+, +% $"#$ $"' #$$'3�$ $* #��/7 6#/9'% 9(+.*23/7 #)2*%% )9/$92'% #(, %*)+'$+'%� 4"'2' $"' �*%%+&+/+$+'% .*2 �'*�/'% +( $"*%' %*)+'$+'% $* �#2$+)+�#$'� +(./9'()'� #(, +3�#)$ 9�*( $"#$ �2*)'%% #2' )*(.+(', #(, ,'/+3+$',� +% +( '%%'()' # ('0#$+*( *. $"*%' 6#/9'% &7 $"' 6'27 3'#(% *. $"'+2 %9��*%', +3�/'3'($#$+*(� :9$ #(*$"'2 4#7� $"' 6#/9'% #(, +,'#% +(.*23+(0 E9%$+)' 3#7 ('', $* &' #2$+)9/#$', 4+$"+( #(, &7 '#)" )*339(+$7� &#%', *( +$% %�')+.+) 2'#/+$+'% #(, ('',%� .*2 &*$" )*()'�$9#/ #(,� +(,'',� �2#)$+)#/ 2'#%*(%� ( $'23% *. $"' /#$$'2� .*2 '<#3�/'� #% �#(+ �*+($% *9$� �C= �� �� H'7F'2� - *3'(� #2 #(, :'#)'� �*&+/+F+(0 .*2 �')92+$7 #(, �9%$+)' +( $"' �;%$ �'($9271� �� ���� $"' #0 H#33#2%5E*/, �')$92'� �� �'�$'3&'2 ���=� ; =� #$ =� �C �#(+� *�� )+$�� (� ;!� �� H'#2(� *�� )+$�� (� =� �� ���� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ +. +,'#% #(, +(%$+$9$+*(% #&*9$ #% .9(,#3'($#/ #(, �'2%*(#/ # 6#/9' #% E9%$+)' #2' +3�*%', .2*3 *9$%+,' 4+$"*9$ #( +($'2(#/ 2'%*(#()'� $"'7 3#7 ./*9(,'2� (*$4+$"%$#(,+(0 $"'+2 #%%'2$+*( *. 9(+6'2%#/+$7� �! �"#$ (*(� '%$'2( %)"*/#2%� /+6+(0 #(, 4*25+(0 +( 2'%*92)'��**2 #(, 4#2� $*2( %*)+'$+'%� "#6' /+$$/' 6*+)' +( '%$'2( ,*3+(#$', #(, 0'('2#$', #)#� ,'3+) $"'*2+'% #(, ,'&#$'%� 3#7 +$%'/. &' %''( #% #( +(E9%$+)' +3�#)$+(0 9�*( $"' %$9,7 #(, �2#)$+)' *. $2#(%+$+*(#/ E9%$+)' 3#5+(0� �"' (#22*4 .*)9% *( G9'%$+*(% *. /#4� '6+,'($ +( 39)" $2#(%+$+*(#/ E9%$+)' $"'*27� )2'#$'% �2*&� /'3% .*2 9(,'2%$#(,+(0 $"' +%%9'% #$ %$#5' #(, $"' )*(%'G9'()'% *. $2#(%+$+*(#/ �2*)'%%'% &7 2'3*6+(0 $"'3 .2*3 # 4+,'2 %$29)$92#/ %*)+#/� �*/+$+)#/� #(, ')*(*3+) )*($'<$� �� � >� �8 �H� -:��������� �� �8�� �1J �"' �2*&/'3 *. # �*$'($+#/ -,'3*)2#$+) ,'.+)+$1 /+'% #$ $"' "'#2$ *. # )2+$+G9' *. "'0'3*(+) +($'2(#$+*(#/ #��2*#)"'% $* -,'3*)2#)7 �2*3*$+*(1 +( �*%$� )*(./+)$ %+$9#$+*(%� "#$ +% '%%'($+#//7 #$ +%%9' +% $"' G9'%$+*( *. #0'()7� *. 4"* '(0'(,'2% #(, )*($2*/% )"#(0'� 4+$"+( 4"#$ "#% &''( $'23', $"' -�*%$� )*(./+)$ #0'(,#1� =� �"+% 2#+%'% .9(,#3'($#/ G9'%$+*(% #&*9$ �*4'2 2'/#$+*(% #(, $"' /'0+$+3#$+*( *. ,*3+(#($ +($'2'%$%� �% #/2'#,7 (*$',� E9%$+)' "#% &')*3' # 5'7 .'#$92' *. +($'2(#$+*(#/ .*2'+0( �*/+)7 #(, )**�'2#$+*( #(, +% *(' *. $"' 3#+( 4#7% +( 4"+)" $"' +($'2(#$+*(#/ )*339(+$7 "#% )*3' $* '(0#0' 4+$" )*9($2+'% +( $"' /#$' ;!!�%� �"' -E9,+)+#/+F#$+*( *. +($'2(#$+*(#/ 2'/#$+*(%1 +% #��#2'($ +( # 4+,' 2#(0' *. +($'2(#$+*(#//7 ,2+6'( �'#)'� &9+/,+(0� 2')*()+/+#$+*(� ,'6'/*�3'($� ,'3*)2#$+F#$+*(� 0**, 0*6'2(#()'� (#$+*(�&9+/,+(0� #(, 29/' *. /#4 +(+$+#$+6'%� =; �"2*90" %9)" +($'26'($+*(%� +($'2(#$+*(#/ #)$*2% #2' 0'$$+(0 ,''�/7 +(6*/6', +( �*/+$+)#/ #(, %*)+#/ 3#$$'2% $"#$ $"'7 #6*+,', 9($+/ 2')'($/7� �"' �2*&/'3 #0#+(� #% (93'2*9% )*33'($#$*2% "#6' #209',� +% $"#$ %9)" +(+$+#$+6'% $'(, $* &' ,*(*2�,2+6'(� 2#$"'2 $"#( 2'%�*(%+6' $* $"' ('',% *2 4#($% *. �'*�/' $"'3%'/6'%� �2*3 $"' ;!!�% *(4#2,� # ('4 #��2*#)" $* �*%$�)*(./+)$ ,'6'/*�3'($ "#% '3'20', 4+$" #+,� �2+3#2+/7 .2*3 $"' �*2$" $* $"' �*9$"� &'+(0 6+'4', #% # $**/ *. �*/+$+)#/ '(0+(''2+(0� =� �"' %"+.$ $*4#2, �C� �! �#(+� *�� )+$�� (� ;!� �� =!� =� �"' $'23 -�*%$�)*(./+)$ #0'(,#1 2'.'2% +( $"+% �#�'2 $* $"' 3#(7 #(, 6#2+', �'#)'� &9+/,+(0� )*(./+)$�3#(#0'3'($� -0**, 0*6'2(#()'1� ,'3*)2#$+F#$+*(� #(, 29/' *. /#4 #(, E9%$+)' +($'26'($+*(% %�*(%*2', &7 $"' +($'2(#$+*(#/ )*339(+$7� =; H'#2(� *�� )+$�� (� =I �*3'( *�� )+$�� (� =I �6+(� *�� )+$�� (� �=� =� H'#2(� +,�I 8� ?(#9% #(, �� �#2$+(� ---�2#6#+/% *. $"' �92*�'#( �#E11 �'%%*(% .2*3 �*%(+# H'2F'0*6+(#1 A����B ;=A�B *� � '�� ����� �� C=I �*3'( +,�I � �*&+(%*(� � � ��� �������8 >� �������� �� )( ���������� �� ��� 2� �� �� A;!!�BI �#(+� *�� )+$�� (� ;!I �� :#2+%� - ($'2(#$+*(#/ :'#)'&9+/,+(0 #(, $"' --�+%%+*( �+6+/+%#$2+)'111 A����B �� 3��� � ��������� ��� (� ���� ��C ��I �� :90" A',�B� 3� ������� � � ;��� � �� ( ������� A����BI �6+(� +,� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ -"93#( 2+0"$%1 #(, -/'0#/ #(, E9,+)+#/ ,'6'/*�3'($1 �2*E')$% "#% &''( )'($2#/ $* $"+% �2*)'%%� �'2$#+(/7 $"'2' "#% &''( # �2*/+.'2#$+*( *. %9)" �2*02#33'%� �*2 '<#3�/'� #+, .2*3 $"' �20#(+%#$+*( .*2 �)*(*3+) �*�*�'2#$+*( #(, '6'/*�3'($ A��� B $* -$2#(%+$+*(#/1 )*9($2+'% .*2 /'0#/� E9,+)+#/ #(, "93#( 2+0"$% +(+$+#$+6'% 02'4 .2*3 /'%% $"#( ��Q������� +( ;!�� $* # %$#00'2+(0 ��Q��; 3+//+*( +( ����� =� �"' (93&'2 *. %9)" �2*E')$% +()2'#%', .2*3 *(' +( ;!�� $* ;���� +( ����� H*4'6'2� *. 'G9#/ %+0(+.+)#()' +% $"' (#$92' *. %9)" 4*25� �*2 3#(7 )2+$+)% $"'%' �2*E')$% #2' �2+3#2+/7 ,*(*2� ,2+6'(� �*2 '<#3�/'� +( �4#(,# $"' (93&'2 *. ��� �.9(,', /'0#/ #(, -E9,+)+#/ ,'6'/*�3'($1 #(, -"93#( 2+0"$%1 �2*E')$% 2*%' .2*3 F'2* $* �� ,92+(0 $"' ;!!�%� #$ #( '%$+3#$', )*%$ *. ��Q�� 3+//+*(� �'$� #% "#% #/2'#,7 &''( $*9)"', 9�*(� $"' '<$'($ $* 4"+)" %9)" 4*25 +3�#)$% *( $"' /+6'% *. *2,+(#27 �4#(,#(% +% '<$2'3'/7 /+3+$',� ( #(*$"'2 +(%$#()'� +( �+'22# �'*('� $"' #((9#/ &9,0'$ *. $"' ��')+#/ �2+&9(#/ "#% &''( )#/)9/#$', #$ *6'2 ��Q�� 3+//+*(� 4"+/' $"' (#$+*(#/ E9,+)+#/ +(.2#%$29)$92'� 4+$" *(/7 $4* E9,0'% #(, ;� /#47'2%� %$#(,% +( 29+(%� == �% #/2'#,7 (*$',� $"' 6#%$ 3#E*2+$7 *. )*9($2+'% '3'20+(0 .2*3 )*(./+)$% #2' �**2 #(, $"'2'.*2' "+0"/7 ,'�'(,'($ *( +($'2(#$+*(#/ .+(#()+#/ +(%$+$9$+*(% A � %B %9)" #% $"' *2/, �#(5 #(, $"' ($'2(#$+*(#/ �*('$#27 �9(, A ��B .*2 2')*(%$29)$+*( #+,� � % #)$ #% )#$#/7%$% #(, 09#2#($*2% .*2 &+/#$'2#/ ,*(*2%� �% # 2'%9/$� �**2'2 )*9($2+'% #2' ,'�'(,'($ *( A#(, *.$'( "#6' (* *�$+*( &9$ $* #02'' $*B %9)" +3�*%', )*(,+$+*(#/+$7� "+/'� +( $"'*27� $"'2' 3#7 &' �*%+$+6' �*/+$+)#/ *9$)*3'% *. %9)" #22#(0'3'($% +( �2#)$+)' $"' '<$'2(#/ /'6'2#0' 2'%9/$+(0 .2*3 )*(,+$+*(#/+$7 "#% �2*6*5', )*(%+,'2#&/' )2+$+)+%3� (,'',� %'6'2#/ )*33'($#$*2% "#6' #209', $"#$ $"' -920' $* '(0+(''21 '6+,'($ +( %9)" �*/+)+'% +% )*()'2(',� #$ # %$2#$'0+) /'6'/� $* 3#5' 4#7 .*2 $"' +($'02#$+*( *. 4#2�$*2( %*)+'$+'% +($* $"' 4*2/, ')*(*37� �6'( +( )*9($2+'% 4+$"*9$ ,'&+/+$#$+(0 )*(./+)$� $"' 2*/' *. #+, #(, +$% '..+)+'()7 +% ,+%�9$',� �6+( #209'% $"#$ $"' '$"+)#/ #(, %$2#$'0+) )"#/� /'(0'% '()*9($'2', +( �*%$�)*(./+)$ %+$9#$+*(% #2' #( '<$2'3' '<#3�/' *. $"*%' �*%', +( 2'/#$+*( $* ��� ,'6'/*�3'($ #+,� #(, $"' +,'*/*0+)#/ #(, *�'2#$+*(#/ .*9(,#$+*(% 9�*( 4"+)" +$ 2'%$%� =� �"' )*2' )2+$+G9' +% $"#$ %9)" %$2#$'0+'% �2*3*$' # �#$$'2( *. ,'6'/*�3'($ ,'$'23+(', &7 $"' ,*3+(#($ +,'*/*07 *. ('*�/+&'2#/ ')*(*3+) 3*,'2(+F#$+*( $"#$ +3&9'% $"' � %� ( *$"'2 4*2,%� 4+,'2 0'*��*/+$+)#/ #(, ')*(*3+) +($'2'%$% $** *.$'( %"#�' 4"#$ $'(, $* &' 2'�2'%'($', #% �*/+$+)#//7 #(, ')*(*3+)#//7 ('9$2#/ �*%$�)*(./+)$ #(, $2#(%+$+*(#/ E9%$+)' +(+$+#$+6'%� �#2 .2*3 &'+(0 ('9$2#/� $')"(*)2#$+)� #(, �C� =� �*3'(� +,�� �� �!;� == +,� =� �''� .*2 '<#3�/'� �� �'209%*(� ��� !����� ������ ?������8 �'���� ������� '�� ���������� �� ��� + ��� ������ ��� �� 5�� �� A;!!=BI � *//#2 #(, � :2+$)"'$$� !������� !��8 ;��� ; ���� ;��� ' ����� ��� ;�� A;!!�BI �� �(,'2%*(� ' " 2���8 2 � !�� $�� ( �� �� ���� � ;�� A;!!!BI �� �+,,/'$*( #(, :� �1?''.'� '������� ��� '���� �����8 ��� ������ � 2 ���������� !�� A;!!�B� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ #��*/+$+)#/� #% �2*�*('($% 4*9/, )/#+3� +$ +% #209',� 2#$"'2� $"#$ $"'7 #2' ,+2')$', #$ 2')*(%$+$9$+(0 �*%$�)*(./+)$ %*)+'$+'% +( $"' +3#0' *. '%$'2( /+&'2#/ ,'3*)2#)+'%� '%$#&/+%"+(0 %9)" 3*,'/% #% $"' +,'#/ $7�' #(, %'$$+(0 '<$'2(#//7 ,'.+(', /+3+$% $* $"' .+'/, *. �'23+%%+&/' #)$+*(� =� (,'', $"+% "#% &''( /+5'(', $* # ('4 .*23 *. ('*�)*/*(+#/+%3� 2'%$+(0 9/$+3#$'/7 *( # $"'*27 #(, %7%$'3 *. %9&E90#$+*( 9(,'242+$$'( &7 # 2*3#($+)+F', 6+%+*( *. $"' '%$� "'/, &7 $"' '%$ +$%'/.� 4"* $"'( #/%* )*(%$+$9$' -$"' *$"'21 #% 2#)+#//7 #(, )9/$92#//7 +(.'2+*2� =C �"'2' +% # ,#(0'2 $"#$ $2#(%+$+*(#/ E9%$+)' %$2#$'0+'% )#(� #% # )*(%'G9'()'� &' +3�/+)#$', +( $"+% �2*)'%%� �"+% +% )/'#2/7 )/*%'/7 $+', $* .9(,#3'($#/ )"#(0'% +( +($'2(#$+*(#/ 2'/#� $+*(% 2'6*/6+(0 #2*9(, # 2')*()'�$9#/+F#$+*( *. (*$+*(% *. (#$+*(#/ %*6'2'+0($7� =� �"' +($'2(#$+*(#/ 3+%%+*( +( �*%(+#�H'2F'0*6+(#� 2'0#2,', #% -0*6'2(3'($ &7 +($'2(#$+*(#/ '<�'2$%1 $"#$ (*$ *(/7 %"#�'% &9$ %'$% #(, +3�*%'% # �*/+$+)#/ #0'(,#� +% #( *&6+*9% )#%' +( �*+($� =! �� $2#(%+$+*(#/ #,3+(+%$2#$+*(% +( �/#)'% %9)" #% �#%$ �+3*2 #(, ?*%*6*� *.$'( 2'.'22', $* &7 $'23% %9)" #% -$29%$''%"+�1 *2 -�2*$')$*2#$'1� +(6*/6' /*)#//7 9(#))*9($� #&/' #0'()+'% +( ,2#4+(0 9� #(, +3�/'3'($+(0 /#4%� �� ( �.0"#(+%$#(� 2#G� #(, �+&'2+#� �2'.#&2+)#$', -E9%$+)' �#)5#0'%1 #2' %+3+/#2/7 &'+(0 2'#,+', .*2 +($2*,9)$+*(� �; �"'%' +()/9,' # 4+,' 2#(0' *. /'0#/ #)$+6+$+'% .*23'2/7 )*(%+,'2', $"' 2'3+$ *. (#$+*(#/ %$#$'%� �'$ $"+% 2+%' +( +($'26'($+*(+%3� &#%', *( '%$'2( )*()'�$+*(% *. E9%$+)'� "#% #/%* &''( �#2#//'/', &7 2'/9)$#()' *( $"' �#2$ *. 3#(7 29/' *. /#4 '<�'2$% $* #)5(*4/',0' $"' �*/+$+)#/ ,+3'(%+*(% *. %9)" #)$+6+$+'%� �<�2'%%+(0 $2#(%+$+*(#/ E9%$+)' G9'%$+*(% #% # %'2+'% *. $')"(+)#/ +%%9'% *..%'$% $"+% �*$'($+#//7 $2*9&/+(0 2')*0(+$+*(� �� (,'', )2+$+)% "#6' #209', $"#$ $"' ('4 -�*%$�)*(./+)$ #0'(,#1 �*%'% ,''�� #(, 9(2'%*/6',� '$"+)#/ G9'%$+*(% .*2 ,*(*2% #(, *$"'2% $"#$ #2' %+3�/7 (*$ #)5(*4/',0', *2 #,,2'%%', +( $"' /+$'2#$92'� �� :��H �8 �� �:�� ���J ��� �8 �� �� :��� � :�� �� �*$4+$"%$#(,+(0 $"' )2+$+)+%3% ,+%)9%%', #&*6'� $"'2' ,*'% #��'#2 $* &' # 02*4+(0 2')*0(+$+*(� *( �#�'2 #$ /'#%$� 4+$"+( $"' +($'2(#$+*(#/ )*339(+$7 �CC =� ?(#9% #(, �#2$+(� *�� )+$�� (� =�I �6+(� *�� )+$�� (� �=� =C H'#2(� *�� )+$�� (� =I ?(#9% #(, �#2$+(� +,�I �*3'(� *�� )+$�� (� =I :#2+%� *�� )+$�� (� =�I �6+(� +,� =� �*3'(� +,�� �� �!�� =! ?(#9% #(, �#2$+(� *�� )+$�� (� =�� �� �� �'2,#/ #(, �� �#�/#(� -�"' :*/+$+)% *. ($'2(#$+*(#/ �,3+(+%$2#$+*(� ($2*,9)$+*(1 A���=B ;� >� ��� > ������� A��')+#/ %%9'B ; �� �; �*3'(� *�� )+$�� (� =� �� �!;� �� �� H924+$F #(, ?� �$9,,#2,� 3 �� � 5�� � ���� �� ���� 4������ ��� ($'2(#$+*(#/ :'#)' �)#,'37� 4*25+(0 �#�'2 A����B =� �� �*3'(� *�� )+$�� (� =� ��� �!� �I �6+(� *�� )+$�� (� =�� �� ;CC� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ $"#$ )*()'�$9#//7 #(, *�'2#$+*(#//7 $"' -E9%$+)' '($'2�2+%'1 ('',% 2'$"+(5+(0� �"9%� .*2 '<#3�/'� # ���� �� 2'�*2$ *( 0'(,'2� 'G9+$7� #(, �'#)' #02''� 3'($% '(,*2%'% # �#2$+)+�#$*27 #��2*#)"� �= �#+/92' $* '3&2#)' /*)#/%1 /+6', '<�'2+'()'% #(, *�+(+*(%� +$ +% #209',� )#( /'#, $* # �**2 9(,'2%$#(,+(0 *. �'#)' $2#(%.*23#$+*(� �"' #(%4'2� $"'2'.*2'� +% $* 6+'4 /*)#/ �'*�/' A+( $"+% +(%$#()'� 4*3'(B #% %$#5'"*/,'2% +(� #(, #)$+6' #0'($% *. )"#(0'� �"#$ /*)#/ *4('2%"+� *. )*(./+)$ $2#(%.*23#$+*( +% # -%'(%+$+6'1 #(, -*6'2/**5',1 +%%9' "#% #/%* 2')'($/7 &''( 2')*0(+F', +( $"' �� �')2'$#27�8'('2#/1% �'�*2$ *( $"' 3 �� � 5�� ��� �������� ��� * ������ ')27+(0 -*('�%+F'�.+$%�#// .*239/#% #(, $"' +3�*2$#$+*( *. .*2'+0( 3*,'/%1 *. $2#(%+$+*(#/ E9%$+)'� $"' 2'�*2$ #,6*)#$'% +(%$'#, #( #��2*#)" &#%', *( -(#$+*(#/ #%%'%%3'($%� (#$+*(#/ �#2$+)+�#$+*( #(, (#$+*(#/ ('',% #(, #%�+2#$+*(%1� �� (*23% #(, %$#(,#2,%� +$ %900'%$%� ('', $* &' 3#22+', $* -2'%�')$ #(, %9��*2$ M.*2N /*)#/ *4('2%"+�� /*)#/ /'#,'2%"+� #(, # /*)#/ )*(%$+$9'()7 .*2 2'.*23� �� �9)" *..+)+#/ �� 2'%�*(%'% "#6' .*//*4', *( .2*3 # 02*4+(0 )"*29% *. )2+$+)#/ 6*+)'% 2#+%+(0 )*()'2(% *6'2 $"' /#)5 *. /*)#/ *4('2%"+� +( $2#(%+$+*(#/ �2*)'%%'%� :90" +% )2+$+)#/ *. '<$'2(#/ #)$*2 3+%)*()'�$+*(%� "+0"/+0"$+(0 $"'+2 $'(,'()7 $* 6+'4 '($+2' �*%$�4#2 �*�9/#$+*(% '+$"'2 #% $2#93#$+F', 6+)$+3%� /#)5+(0 $"' #&+/+$7 $* 3#5' ,')+%+*(% #&*9$ $"' .9$92'� *2 #% �'*�/' ,2+6'( &7 # ,'%$29)$+6' �%7)"*%+% $"#$ 2'(,'2% $"'3 +()#�#&/' *2 3*2#//7 9(4*2$"7 *. �*%+$+6' )*($2+&9$+*(% $* �'#)'�&9+/,+(0� �� �"' -*$"'21 *. �'*�/'% +( 6+*/'($/7 ,+6+,', %*)+'$+'% #2' $"9% ,'(+', $"'+2 �*$'($+#/ )*($2+&9$+*( $* )*(./+)$ $2#(%.*23#$+*( +( ,*(*2 $"+(5+(0� �C ( %+3+/#2 6'+(� H924+$F #(, �$9,,#2, #209' $"#$ �2')/9,+(0 (#$+*(#/ *4('2%"+� *. /'0#/ 2'.*23� #(, $"' )*()'(� $2#$+*( *( )"#(0'% $* 2+0+, /'0#/ %$29)$92'% +% 9(/+5'/7 $* #%%+%$ %$#$'% #(, �*�9/#$+*(%� )2'#$+(0 # -�*$'($+#//7 '<�/*%+6'1 �2*&/'3� �� �% # (93&'2 *. )2+$+)% "#6' #/%* %900'%$',� +(+$+#$+6'% %9)" #% $"' ��� "#6' /#20'/7 .#+/', $* '(0'(,'2 /*)#/ '(0#0'3'($� �% # 2'%9/$� $"'7 $'(, $* 2'3#+( +(%$+$9$+*(% *.� +( #(, %''3+(0/7 .*2 $"' +($'2(#$+*(#/ )*339(+$7� 4+$" $"' ,'6'/*�3'($ *. +($'2(#$+*(#/ )2+3+(#/ /#4 �'2)'+6', #% $"'+2 )"+'. #+3� �)"*+(0 $"' �� 2'�*2$� H924+$F #(, �$9,,#2, )#9$+*( #0#+(%$ # 2*3#($+)� 9()*(,+$+*(#/ '(,*2%'3'($ *. +(,+0'(*9% %7%$'3% #(, %*/9$+*(% $"#$ 3+0"$ �'2�'$9#$' ,+%)2+3+(#$*27 �2#)$+)'% #0#+(%$ 69/('2#&/' 02*9�%� &9$ #$ $"' %#3' $+3' )#// .*2 +(.*23#/ 3')"#(+%3% 4+$" # 2'/'6#()' $* /*)#/ �*�9/#$+*(%� �C� �= �� �"+(5+(� -:'#)' �02''3'($% #% # �'#(% .*2 :2*3*$+(0 8'(,'2 �G9#/+$7 #(, �(%92+(0 :#2$+)+�#$+*( *. *3'(1 A����B ��� +6+%+*( .*2 $"' �,6#()'3'($ *. *3'(� �<�'2$ �''$+(0 *( :'#)' �02''3'($% #% # �'#(% .*2 :2*3*$+(0 8'(,'2 �G9#/+$7 #(, �(%92+(0 :#2$+)+�#$+*( *. *3'( � �2#3'4*25 *. �*,'/ :2*6+%+*( �8�D:����D����D�:�;� �� �� �')2'$#27�8'('2#/� *�� )+$�� (� ;� �� ;CI %''� #/%*� �� �')92+$7 �*9()+/ ����(, �''$+(0� �D:������I ($'2(#$+*(#/ :'#)' �)#,'37 A :�B� -�9/' *. �#4 :2*02#3% +( :'#)' ��'2#$+*(%� �*4#2, # �*(./+)$��'(%+$+6' :'2%�')$+6'1� )*()'�$ �#�'2 A���=B� �� :90"� *�� )+$�� (� =�� �� ;��� �C �� 8*2,*( #(, ��H �7/6'%$'2� - ')*(%$29)$+(0 '6'/*�3'($1� �+//#(*6# �(+6'2%+$7 �)"**/ *. �#4 4*25+(0 �#�'2 A���=B� �� H924+$F #(, �$9,,#2,� *�� )+$�� (� ��� �� =� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �"'2' +%� $"'(� # 02*4+(0 #4#2'('%% $"#$ $"' �� #(, +($'2(#$+*(#/ #)$*2% ('', $* %'+F' $"' *��*2$9(+$7 *. ,'6'/*�+(0 # -%')*(, 0'('2#$+*( *. 29/' *. /#4 �*/+)+'%1� �! . $"+% +% %*� +$ +% �2+3#2+/7 &')#9%' $"' )2'#$+*( *. #( '(,92+(0 �'#)' %$+// %''3%� +( .#2 $** 3#(7 +(%$#()'%� #( '/9%+6' '(,� �6'2 =� �'2 )'($ *. �*%$�)*(./+)$ %*)+'$+'% 2'$92( $* )*(./+)$ 4+$"+( # %�#( *. .+6' 7'#2%� �� '%�+$' %9&%$#($+#/ +(6'%$3'($ +( $*��,*4( &/9'�2+($%� �2*E')$%� #(, 3')"#(+%3%� $"' 3*%$ )*33*( *9$)*3' *. # )+6+/ 4#2 +% #(*$"'2 4#2� (%$+$9$+*(#/+F+(0 #(, %9%$#+(+(0 �'#)'� +$ +% +()2'#%+(0/7 &'+(0 %900'%$',� 3#7 2'G9+2' �/#)+(0 +%%9'% *. *4('2%"+� #(, �#2$+)+�#$+*( #$ $"' )'($2' *. /*(0�$'23 �*%$�)*(./+)$ E9%$+)'� H*4'6'2� +. $"'2' +% (*4 # 02*4+(0 2"'$*2+)#/ 2')*0(+$+*( *. %9)" +%%9'%� "#% $"+% &''( $2#(%/#$', +($* $"' 2'#/+$7 *. �*/+)7 #(, �2#)$+)'J H'2' $"' '6+,'()' +% /'%% '#%7 $* .+(,� '%�+$' &'+(0 +,'($+.+', #% 5'7 +%%9'% +( +($'2(#$+*(#/ 2'�*2$% #(, ,'6'/*�3'($ )+2)/'% .*2 3#(7 7'#2%� $"' 6+2$9'% *. /*)#/ *4('2%"+�� '3�*4'23'($� #(, �#2$+)+�#$*27 #��2*#)"'% "#6' $'(,', *(/7 $* &' +3�/'3'($', +( # 6#09'� 4'#5� #(, #, "*) 3#(('2� �; $ %''3% $"#$ 3#(7 *. $"'%' #2093'($% "#6' (*$ &''( $2#(%/#$', #)2*%% +( # )*3�2'"'(%+6' 3#(('2 +($* $2#(%+$+*(#/ E9%$+)' $"'*27 #(, �2#)$+)'� ����� �8 ����� � ��������:� :��� � :����� �::����H $ +% &'7*(, $"' %)*�' *. $"+% �#�'2 $* *..'2 # ,'.+(+$+6' #(%4'2 $* 4"#$ $"' �2+()+�/'% *. # &*$$*3�9�� �#2$+)+�#$*27 #��2*#)" /**5 /+5'� H*4'6'2� %*3'$"+(0 *. $"'+2 (#$92' 3+0"$ &' %5'$)"', *9$ &7 .+2%$ 0+6+(0 # &2+'. *6'26+'4 *. "*4 &*$$*3�9� #��2*#)"'% $* ,'6'/*�3'($ '3'20',� 4"#$ 5'7 )*()'�$% "#6' 9(,'242+$$'( $"+% �2*)'%%� #(, %*3' *. $"' �2*&/'3% #(, +%%9'% $"#$ "#6' #2+%'( 4+$" $"'+2 +3�/'3'($#$+*(� � �#2$+)+�#$*27 )*()'�$9#/ .2#3'4*25 #(, 3'$"*,*/*07 9(,'2�+((', $"' 4*25 *. $"' �2,*7(' �*33'3*2#$+*( :2*E')$ #(, +% ,+%)9%%', +( ,'$#+/ +( $"' )#%' %$9,7 &'/*4� �"' 2**$% *. 2#,+)#/� -&*$$*3�9�1 �#2$+)+�#$*27 #��2*#)"'% )#( &' $2#)', $* $"' %*)+#/ %$2900/'%� �*�9/#2 9(2'%$� #(, 02*4$" *. 02#%%2**$% 3*6'3'($% +( $"' �*9$" ,92+(0 $"' /#$' ;!��% #(, ;!C�%� �2*3 $"'+2 *2+0+(� $"'2'.*2'� �#2$+)+�#$*27 #��2*#)"'% "#6' .*23', �#2$ *. $"' )2+$+G9'� '3'20+(0 .2*3 $"' 9(,'2,'6'/*�', 4*2/,� *. $"' �'2)'+6', .#+/92' *. �*2$"�+(%�+2', #(, ,+2')$', )'($2#/+F',� $*��,*4( *2 -&/9'�2+($1 #��2*#)"'% $* ,'6'/*�3'($� �� �.$'( )/*%'/7 $+', $* -$"+2,�4*2/,1 (#$+*(#/ /+&'2#$+*( )#3�#+0(% #(, /'.$� �C! �! :�� *�� )+$�� (� ��� �� ;� �� �� �*&'55� -�*(.'2'()' �'�*2$1 +( !���� ���������� �8 ���� (�� ���� ?��� ����� �� ���$ ������ ( ������� B 9� � ���������� � � ( ��������� 5 ��� 4��������� ',%� ��H� �&(*R$"'2 #(, :�H� �/92+ A����B #$ ���� �; +,� �� �� ��"*..� -82#%%2**$% �20#(+%#$+*(% #(, �8�% +( �92#/ '6'/*�3'($� ���*2$9(+$+'% 4+$" +3+(+%"+(0 �$#$'% #(, �<�#(,+(0 �#25'$%1 A;!!�B �; ; ��� '���� ����� ��C ��� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ '3#()+�#$*27 %$2900/'%� $"'%' %$2#$'0+'%� ,'%+0(', %�')+.+)#//7 $* )"#//'(0' ,*3+(#($ �#2#,+03% *. 5(*4/',0' )*($2*/ #(, �2*,9)$+*(� 4'2' ,'6'/*�', &7 #)#,'3+)�#)$+6+%$% *�'2#$+(0 +( �*9$" �3'2+)#� �9&��#"#2#( �.2+)#� #(, $"' �%+#( %9&�)*($+('($� �� �*2 :#*/* �2'+2'� .*2 '<#3�/'� �*�9/#2 ',9)#$+*( �2*02#33'% 4'2' ,'%+0(', $* )2'#$' -)*(%)+'($+F#$+*(1� # )2+$+)#/ %$#$' *. )*(%)+*9%('%% 2**$', +( �*�9/#2 '<�'2+'()' #(, �'*�/'1% 5(*4/',0' *. $"'+2 *4( %$29)$92#/ )*(,+$+*(% *. *��2'%%+*(� �"+% 2'%$% 9�*( # .9(,#3'($#/ �"+/*%*�"+)#/ �2*�*%+$+*( $"#$� +( *2,'2 $* *6'2)*3' $"' 2'�2*,9)$+*( *. )*(,+$+*(% *. #/+'(#$+*( #(, *��2'%%+*(� +$ +% (')'%%#27 .*2 �'*�/' $* +,'($+.7 $"'%' $"'3%'/6'% #(, $"'( $* )*()'+6' *. )*//')$+6' #)$+*(%� &#%', *( $"#$ 5(*4/',0'� $* *6'2)*3' $"'3� �0'()7 +% $"'2'.*2' �/#)', #$ $"' )'($2' *. $"' �/#$.*23 *. )"#(0'� ( 3#(7 4#7% $"+% �#2#//'/% $"' )*()'�$+*( *. 5(*4/',0' #(, #)$+6+%3 '6+,'($ 4+$"+( 2#,+)#/ ,'3*)2#$+) $"'*27� �*2 '<#3�/'� ')"*+(0 # 82#3%)+#( �'2%�')$+6' *( $"' -�2#<+%1 *. $"' -*20#(+) +($'//')$9#/1� �(+%92 �#"3#( )*($'(,% $"#$ �#2$+)+�#$*27 #��2*#)"'% )*(%$+$9$' # �*/+$+)#/ �2#)$+)' )"#//'(0+(0 (*$ *(/7 $"' +,'# *. *��2'%%+*( $"2*90" $"' )*($2*/ *. 3#$'2+#/ �2*,9)$+*(� &9$ #/%* .*23% *. ,*3+(#$+*( 2'%9/$+(0 .2*3 )*($2*/ *6'2 $"' -3'#(% *. 5(*4/',0' �2*,9)$+*( M+()/9,+(0N $"' %*)+#/ �*4'2 $* ,'$'23+(' 4"#$ +% 6#/+, *2 9%'.9/ 5(*4/',0'1� �= $ 4#% +( $"+% 6'+( $"#$ �2/#(,# �#/% �*2,# ,'%)2+&', $"' #+3 *. :#2$+)+�#$*27 �)$+*( �'%'#2)" A:��B #% $"' /'0+$+3#$+*( *. �*�9/#2 5(*4/',0' #(, �9,, H#// %900'%$', A�C �� �*9)#9/$B $"#$ :�� +% ,'%+0(', $* -0#+( # �/#)' #$ $"' 5(*4/',0'�)2'#$+(0 $#&/'1 .*2 $"*%' 0'('2#//7 '<)/9,', .2*3 %9)" �2*)'%%'%� �� :#2$+)+�#$*27 #)$+*( )#( &' %933', 9� #% # �2*)'%% $"#$ .#)+/+$#$'% $"' �'23#('($ #&+/+$7 $* +,'($+.7 #(, #(#/7%' �2*&/'3%� .*239/#$' #(, �/#( %*/9$+*(%� 3*&+/+F' 2'%*92)'% #(, +3�/'3'($ $"'3� $* 0#+( )*($2*/ *6'2 $"' �2*)'%%'% $"#$ #..')$ �'*�/'%1 /+6'%� �"'%' 5'7 )*()'�$% *. �#2$+)+�#$+*(� '3�*4'23'($� #(, )*339(+$7� &#%', �2*)'%%'% &')#3' &9FF4*2,% +( $"' ;!C�% #(, ;!��% 4+$"+( +($'2� (#$+*(#/ ,'6'/*�3'($ )+2)/'%� �%%'($+#//7� �#2$+)+�#$+*( +% $"' 3'#(% $* '3�*4'23'($� $ )*()'2(% $"' #&+/+$7 *. /*)#/ �'*�/' $* ,'.+(' /*)#/ *&%$#)/'% *2 �2*&/'3%� )*()'�$9#/+F'� +(+$+#$'� ,'%+0(� #(, +3�/'3'($ �2*� 02#33'% $* #,,2'%% $"'%' �2*&/'3%� �"' #+3 +% .*2 /*)#/ #)$*2% $* &' '3�*4'2', +( *2,'2 .*2 $"'3 $* 0'('2#$' #(, -,*1 $"'+2 *4( -,'6'/*�3'($1 $"#$ 4+// $"'2'.*2' #/%* &' %9%$#+(#&/' #.$'2 .*2'+0( ,*(*2% /'#6'� �"' 5'7 '/'3'($ +% *4('2%"+� #(, )*($2*/� 4"* +% )*(%9/$',� 4"* 3#5'% ,')+%+*(%� +( 4"*%' +($'2'%$% #(, 4"7� �"' .9(,#3'($#/ )"#(0' %9)" #( #��2*#)" ��� �� �� �#/%��*2,# #(, ���� �#"3#( A',%�B� !��� � ��� D� ���� �8 +������ ��� ? � � �� ���� ��������� �� !��� � 3������� A;!!;BI :� �2'+2'� ��� ��� � � ��� 4�������� A;!C�B� �= ���� �#"3#(� � ����� (����'���� �����8 ����������� � ��������� �� !��� � 3�������8 ! * ���� ��� � 1&�������� A;!!�B ��� �� �� H#//� - +%" �"+% '2' # :*'3 *. :2#)$+)'% *. :#2$+)+�#$*27 �'%'#2)"1 +( �'#%*( #(, �2#,927� *�� )+$�� (� ��� �� ;C�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ #,6*)#$'% +% $"'2'.*2' # -$2#(%.'2 *. �*4'21 .2*3 $"' ,*3+(#($� ,')+%+*(� 3#5+(0 �'*�/' #(, +(%$+$9$+*(% $* $"*%' 4"* #2' %9&*2,+(#$', ,92+(0 $"' �2*)'%%� �� �"' 3#(('2 +( 4"+)" # 0+6'( �2*)'%% +% +(+$+#$',� ,'%+0(',� )*(,9)$',� #(, ,+%%'3+(#$', +% +$%'/. +($'(,', $* .*23 �#2$ *. # 4+,'2 '3#()+�#$*27 �2*E')$ &7 )"#//'(0+(0 $"' 4#7 +( 4"+)" 5(*4/',0' +% )*(%$+$9$', #(, 6#/+,#$',� - '3*)2#$+F+(01 $"' �2*)'%% +% 93&+/+)#//7 $+', $* $"' -/'0+$+3#$+*(1 *. $"' 5(*4/',0' �2*,9)', A*2 �9&/+)/7 #+2',B &7 +$� �'#/ �#2$+)+�#$+*( "#% $"'2'.*2' $* +(6*/6' 4"#$ "#% &''( $'23', -)*�0'('2#$+6' ,+#/*09'1I 4"'2' /*)#/ �'*�/' (*$ *(/7 -#,6+%'1 *( $"' %"#�' #(, ,+2')$+*( *. $"' �2*)'%% &9$ 39%$ #/%* "#6' $"' *��*2$9(+$7 $* &' )*//#&*2#$+6'/7 +(6*/6', +( ,')+%+*(�3#5+(01� �C �*339(+$7 3'3&'2% %"*9/, (*$ *(/7 -#,6+%'1 *( $"' %"#�' #(, ,+2')$+*( *. $"' 2'%'#2)" &9$ 39%$ "#6' $"' *��*2$9(+$7 $* -#$ /'#%$1 )*//#&*2#$+6'/7 )*($2*/� $ 2'/+'% *( # )*()'�$+*( *. "93#( 2+0"$% �2*3*$+*( $"#$ 9(,'2%$#(,% )*($2*/ *6'2 ,')+%+*(�3#5+(0 #% +$%'/. 5'7 $* $"' #)"+'6'3'($ *. $"*%' 2+0"$%� �2� #% ?'((7 "#% 2')'($/7 #209',� $"' 2+0"$ $* �#2$+)+�#$' +( ,')+%+*(% 4"+)" #..')$ *('1% /+.' +% &*$" #( '/'3'($ *. "93#( ,+0(+$7 #(, $"' 5'7 $* '3�*4'23'($ $"' &#%+% *( 4"+)" )"#(0' )#( &' #)"+'6',� �% %9)"� +$ +% &*$" # 3'#(% $* $"' '(E*73'($ *. "93#( 2+0"$%� #(, # "93#( 2+0"$% 0*#/ +( +$%'/.� �� �9)" �'2%�')$+6'% "#6' 9(,*9&$',/7 +(./9'()', 2'%'#2)"'2% #(, #)$+6+%$% 4*25+(0 *( 2'/#$+6'/7 %3#//�%)#/' #(, )*339(+$7�*2+'($#$', $2#(%+$+*(#/ E9%$+)' �2*E')$% +( 3#(7 6+*/'($/7 ,+6+,', %*)+'$+'%� �"+% "#% �'2"#�% &''( 3*%$ *&6+*9% +( �#2$% *. �#$+( �3'2+)#� �"#$ �#2$+)+�#$*27 $"'*27 "#% &''( %* )*()'2(', 4+$" �2*)'%%'% *. -)*//')$+6' 2'%'#2)"1� $"' -)2+$+)#/ 2')*6'27 *. "+%$*271� #(, $"' -,+..9%+*( *. M%9)"N 5(*4/',0'1 9(,*9&$',/7 �2*6', $* &' #( +(./9'()' *( $"' " ��� ?�� A�'6'2 �0#+(B #(, ������ �� +(+$+#$+6'% $"#$ 4'2' %9)" # 5'7 .'#$92' *. "93#( 2+0"$% $2#(%+$+*(#/ #)$+6+%3 $"2*90"*9$ $"' )*($+('($ +( $"' ;!��% #(, ;!!�%� �! �% ,+%)9%%', &'/*4� �#2$+)+�#$*27 $"'*27 9(,*9&$',/7 +(./9'()', $"' 4*25 *. $"' �2,*7(' �*33'3*2#$+*( :2*E')$ A��:B� #% ,+, $"' 89#$'3#/#( " ��� ?�� +(+$+#$+6'� C� "+/' /*)#/ 5(*4� ��; �� �� �"#3&'2%� -:#2#,+03 �"+.$% #(, $"' :2#)$+)' *. :#2$+)+�#$*27 �'%'#2)" #(, '6'/*�3'($1� (%$+$9$' *. '6'/*�3'($ �$9,+'% 4*25+(0 �#�'2 A;!!=B ;� �C ?� �'#2 #(, :� �,4#2,%� -�9+/,+(0 # '3*)2#$+) �'#2(+(0 �*339(+$7 +$"+( : �1 A;!!�B CA�B ������� 1� ���� � C ;�� �� ?� ?'((7� -�"' �+0"$ $* :#2$+)+�#$' +( ($'2(#$+*(#/ H93#( �+0"$% �+'/,4*251 A����B ($'2(#$+*(#/ H93#( �+0"$% �'$4*25 ;� �! �#/%��*2,# #(, �#"3#(� *�� )+$�� (� ��I %''� #/%*� 890'/&'20'2� *�� )+$�� (� �CI 8� 890'/&'20'2� -�*+)'% *. $"' �*+)'/'%% +( �'%$+3*(+#/ �+$'2#$92'1 :#2$ ; A;!!;B ;�A�B 5���� !������� ����������� ; ;��I :#2$ � ;�A=B 5���� !������� ����������� ; ;;�I ��H� � *�� )+$�� (� �C� C� ( ;!!! �*&'2$* �'�#F �*�'F� # 3'3&'2 *. $"' ���H �2*E')$� 6+%+$', �2,*7(' #(, 0#6' # $#/5 #% �#2$ *. $"' /#9()" #(, $*92 *. > �������8 " ��� ?��� ( �#7 ���� $"2'' 3'3&'2% *. $"' ��: )*33+$$'' $2#6'//', $* 89#$'3#/#� 3'$ 4+$" #(, +($'2� 6+'4', #)$+6+%$% #(, +(,+6+,9#/% +(6*/6', +( $"' H+%$*2+)#/ �/#2+.+)#$+*( �*33+%%+*( A��HB� ���H �2*E')$� #(, �'($2' .*2 H93#( �+0"$% �'0#/ �)$+*(� �"' ��: )*33+$$'' %'2+*9%/7 )*(%+,'2', #,*�$+(0 $"' �'6'2 �0#+( $+$/' .*2 $"' &**5 +$ � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ /',0' #(, '<�'2+'()' 4'2' $"' .*9(,#$+*( 9�*( 4"+)" $"' �2*E')$ �2*)'',',� +(%+0"$% .2*3 $"' %*2$ *. $"'*2'$+)#/ �'2%�')$+6'% *9$/+(', #&*6'� #(, +(%�+2#$+*( *. #)$+6+%$% +( �/#)'% #% ,+%$#($ #% 89#$'3#/# "'/�', %"#�' #(, %9%$#+( $"' 4*25� . $2#(%+$+*(#/ E9%$+)' )#( /'#2( .2*3 $"' �#2$+)+�#$*27 ,+%)*92%' #(, $"'*27 $"'( +$ #/%* 3#7 ('', $* ,* %* .2*3 #%�')$% *. '<�'2+'()' +( $"' ,'6'/*�3'($ .+'/,I +( �#2$+)9/#2� $"' �*$'($+#/ �2*&/'3 *. )*�*�$+*(� �*2 '<#3�/'� 4"#$� '6'2 +$% 2#,+)#/ 9(,'2�+((+(0%� &*$$*3�9� *2 �#2$+)+�#$*27 ,+%)*92%' &'0#( $* &' '3&2#)', &7 3#+(%$2'#3 ,'6'/*�3'($ #0'()+'%� #(, #,*�$', &7 +(%$+$9$+*(% +()/9,+(0 $"' *2/, �#(5� C; $ +% (*4 # )*33*(�/#)' +( $"' .+'/, *. 3#+(%$2'#3 ,'6'/*�3'($ $"'*27 #(, �2#)$+)' #(, +% 2'0#2,', #% #( '%%'($+#/ +( 0**, �2#)$+)'� �"+% -%"+.$1 )#3' #&*9$ ,9' $* $"' ,+%#��*+($3'($ 4+$" #(, 2'#/+F#$+*( *. $"' -.#+/',1 $*��,*4( ,'6'/*�3'($ *2$"*,*<7� C� H*4'6'2� $"' #��#2'($/7 �*%+$+6' 3*6' $*4#2, $"' #,*�$+*( *. �#2$+)+� �#$*27 #��2*#)"'% +( 3#+(%$2'#3 ,'6'/*�3'($ +( 0'('2#/ "#% &''( %9&E')$ $* %'6'2' )2+$+)+%3� C� ($'2(#$+*(#/ +(%$+$9$+*(%� +$ +% #209',� $'(, $* '(0#0' +( # �2*&/'3#$+) )*�*�$+*( *. )+6+/ %*)+'$7 #(, #��2*�2+#$' �#2$+)+�#$*27 ,+%� )*92%'� �"' 3*6' $*4#2,% �#2$+)+�#$+*( %$2#$'0+'% &7 $"' *2/, �#(5 "#% &''( %''( #% # �*/+$+)#/ 3*6' $* ('9$2#/+F' 2'%+%$#()' $* �$29)$92#/ �,E9%$� 3'($ :*/+)+'%� %9)" # .'#$92' *. ('*�/+&'2#/ ')*(*3+) �"+/*%*�"7� ( 3#(7 9(,'2,'6'/*�', )*9($2+'% $"+% "#% +(6*/6', ,2#%$+) 2',9)$+*(% +( '<�'(,+$92' *( %*)+#/ 4'/.#2' �2*6+%+*( #(, %'26+)'% +( .#6*92 *. $"' �2+6#$' %')$*2� 4+$" ,'6#%$#$+(0 )*(%'G9'()'% .*2 $"' 3*%$ 69/('2#&/' 02*9�% +( %*)+'$7� C= �(' )2+$+) "#% �*+($', $* $"' 4#7 +( 4"+)" +($'2(#$+*(#/ ,*(*2% "#6' &''( %9))'%%.9/ +( +(./9'()+(0 $"' )922'($ 6'2%+*( *. )+6+/ %*)+'$7 +( # (93&'2 *. �.2+)#( )*9($2+'% A.*2 '<#3�/'� 8"#(#� �*9$" �.2+)#� #(, �0#(,#B� ( %9)" %+$9#$+*(% # 6*)#/� 4'//�.9(,', %')$+*( *. )+6+/ %*)+'$7� +$ +% %900'%$',� +($'26'('% *( 5'7 +%%9'% *. (#$+*(#/ ,'6'/*�3'($ %$2#$'07 #(, #)$% (*$ #% # .*2)' .*2 )"#//'(0+(0 $"' %$#$9% G9*� &9$ .*2 &9+/,+(0 %*)+'$#/ )*(%'(%9% +( +$% 3#+($'(#()'� C� �$"'2% "#6' #209', $"#$ ,*(*2% *.$'( &7�#%% 02#%%�2**$% �8�% +( .#6*92 *. -�2*.'%%+*(#/+F',1 �8�%� 9%9#//7 .*9(, +( 92&#( )'($2'% #(, )#�+$#/ )+$+'%� H93#( 2+0"$% #)$+6+%$% +( �+2 �#(5# "#6' 2'.'22', ,+%�#2#0+(0/7 $* %9)" �8�% #% -02#($ '#$'2%1 #(, %900'%$ $"#$ $"'7 2'�2'%'($ # "+0"/7 �2*.'%%+*(#/+F', -�'#)' +(,9%$271 $"#$ 2'%�*(,% $* ,*(*2 #0'(,#%� C� ��� �2*,9)',� �"' �2,*7(' &**5 +% %+3+/#2 +( %$7/'� .*)9% #(, )*($'($ $* $"' " ��� ?�� A�'6'2 �0#+(SB �9&/+)#$+*(%� C; *2/, �#(5� ��� ; ��� +��� ���������� � ( ���� � A;!!�B� C� �� �#"3#(� -:#2$+)+�#$*27 �)$+*( �'%'#2)"� �"' �#%$ �'3�$#$+*( *. �#+($ '6'/*�3'($1 A;!!�B ;� !����������� ;!! ���� C� �� H'#2(� -�"' --�%'% #(, �&9%'%11 *. �+6+/ �*)+'$7 +( �.2+)#1 A���;B �� 3��� � !������ ������� 1� � �� =� ��� C= �#(+� *�� )+$�� (� ;!� ��� ;�� ��� C� H'#2(� *�� )+$�� (� =� C� �� H#(+..#� - ( :92%9+$ *. '3*)2#)7 +( :*%$ �*/*(+#/ �2+ �#(5#� �*)#/ H93#( �+0"$% ���2*#)"'% $* �2#(%+$+*(#/ �9%$+)'1� )*�7 *. �#�'2 4+$" #9$"*2% A����B ��� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �"+%� $"'7 #209'� 2'%9/$% +( %)#2)' 2'%*92)'% &'+(0 ,+6'2$', #4#7 .2*3 4*2$"7 "*3'�02*4(� &*$$*3�9� �2*E')$% $"#$ #2' )*(%+,'2', +3�*2$#($ &7 /*)#/ *20#(+F#$+*(%� �'�*2$+(0 *( $"' %+$9#$+*( +( �*%(+#� *(' 3#E*2 2'�*2$ *( )+6+/ %*)+'$7 &9+/,+(0 #209', $"#$ $"' %#3' ;������ �2*.'%%+*(#/+F', -'/+$'1 �8�%� 2'3*6', .2*3 $"' -02#%%2**$%1 �2*&/'3% #(, %*)+#/ 2'#/+$7� �2*,9)' #(, #$$'(, "9(,2',% *. 2*9(, $#&/'% #(, 4*25%"*�%� �% # 2'%9/$� *(' 2')'+6'% # .+)$+$+*9% 6+'4 *. /*)#/ �#2$+)+�#$+*(� 4"+)" 2'%9/$% +( 4"#$ +% ,'%)2+&', #% # -6+2$9#/ )+6+/ %*)+'$71� CC �"' %#3' 2'�*2$ 0*'% *( $* %#7� -+$ +% # G9'%$+*( 4"'$"'2 $"'%' M�8�%N 2'�2'%'($ #(7*(' '/%' +( #,,+$+*( $* $"*%' 4"* 4*25 +( $"'31� C� �"' /'0+$+3#)7 #(, )2',+&+/+$7 *. %9)" �8�% #(, $"' 9(+($'(,', 2'%9/$% *. 3#20+(#/+F+(0 �9&/+) �#2$+)+�#$+*( #2' %'2+*9% +%%9'% $"#$ ,*(*2% ('', $* 2'./')$ *(� �'2$#+(/7 %9)" )2+$+G9'% "#6' 2#+%', G9'%$+*(% #&*9$ $"' #)$9#/ 3'#(+(0 *. -�#2$+)+�#$+*(1 #(, -'3�*4'23'($1 #% )*()'�$% 4"'( #��/+', +( %9)" )+2)93%$#()'%� $ +% )29)+#/ $"#$ #,6*)#$'% *. �#2$+)+�#$*27 #��2*#)"'% 4+$"+( $"' .+'/, *. $2#(%+$+*(#/ E9%$+)' ,+2')$/7 #,,2'%% #(, %''5 $* *6'2)*3' %9)" +%%9'% +( $"' ,'6'/*�3'($ #(, ,'%+0( *. %9)" %$2#$'0+'%� �"'2' +% #/%* # %9&%$#($+#/ &*,7 *. /+$'2#$92' +( ,'6'/*�3'($ %$9,+'% $"#$ )#9$+*(% #0#+(%$ 2*3#($+)+F+(0 �#2$+)+�#$*27 #��2*#)"'% #(, ,2#4% #$$'($+*( $* �*$'($+#/ #&9%'% #(, 4"#$ $"'7 3+0"$ )*()'#/� C! "+/' �#2$+)+�#$+*( "#% $"' �*$'($+#/ $* )"#//'(0' �#$$'2(% *. ,*3+(#()'� +$ 3#7 #/%* &' $"' 3'#(% $"2*90" 4"+)" '<+%$+(0 �*4'2 2'/#$+*(% #2' '($2'()"', #(, 2'�2*,9)',� �� �*2 '<#3�/'� 4"* #2' $"' -/*)#/%1 4"*%' 6*+)'% ('', $* &' "'#2, #(, "'',', #(, "*4 ,*'% # /*)#//7�'3�*4'2+(0 �2*)'%% *6'2)*3' "+'2#2)"#/ ,+..'2'()'% A.*2 '<#3�/'� *. 0'(,'2B 4+$"+( # /*)#/ )*339(+$7 $"#$ )#( *$"'24+%' �2')/9,' 0+6+(0 #0'()7 $* $"' 3*%$ 3#20+(#/+F',J �; �% �*"#( "#% #209', $"' 2"'$*2+) *. �#2$+)+�#$+*( *.$'( %'26'% $* )*()'#/ $"' *�'2#$+*( *. �*4'2.9/ +($'2'%$% ������ )*339(+$+'%� �� �9)" )2+$+)+%3% 2#+%' +3�*2$#($ �*+($% #&*9$ $"' +3�#)$ *. +($'2(#$+*(#/ #+, #(, +($'26'($+*( +( 0'('2#/ #(, $"' ,'&#$' #&*9$ 4"* &'#2% $"' )*%$ *. '22*2� ��� CC TU� :#�+)P� -�"' 8'('2#/ �+$9#$+*( +( �*%(+#�H'2F'0*6+(# #(, ($'2(#$+*(#/ �9��*2$ :*/+)+'%1 A���;B +( ��������� ��� ( �� �� ������ � ( �� 1��� 1 � ���� $ ������ B 5��� �� #" �% 5������ �� + �����2���� ���� ',� TU� :#�+)P A���;B ;�� C� �� �#/+��'2F+)� -�+6+/ �*)+'$71 +( :#�+)P A',�B� +,�� �� ;��� C! �� 8#6'($#� -:#2$+)+�#$*27 '6'/*�3'($ *2 :#2$+)+�#$*27 '3*)2#)7J �+(5+(0 :#2$+)+�#$*27 ���2*#)"'% $* :*/+)7 #(, 8*6'2(#()'1 A���=B (*� �� ��������� �� 5������ ��� !��� � ;�� !I �� "+$'� - '�*/+$+)+%+(0 '6'/*�3'($� �"' �%'% #(, �&9%'% *. :#2$+)+�#$+*(1 A;!!�B � '���� ����� �� ������� � ;�I (%$+$9$' *. '6'/*�3'($ �$9,+'% A �B� :#2$+)+�#$+*( 82*9�� K444�+,%�#)�95D+,%D�#2$+)+�L� �� "+$'� +,�� �� �� �; �*&'55� *�� )+$�� (� ��� �� ��=� �� 8� �*"#(� -�*$ %* +%$#($� �*$ %* �$2#(0'� $"' :'2%*(#/ #(, $"' :*/+$+)#/ +( :#2$+)+�#$*27 �'%'#2)"1 A;!!!B � 1������ ���� ��� ��� 1���� ����� =; �=� #$ =�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �H� �� ���� ���������� �� :������� � ���� ��� � �� ��������: ����� � ���� ���� �� ;� ��� � ���&�� ���� � � �� ��� ��� �� � ��� �� ���� �"'%' )2+$+G9'% *. �#2$+)+�#$*27 #��2*#)"'% $* ,'6'/*�3'($� �*%$�)*(./+)$ $2#(%+$+*(� #(, E9%$+)'�3#5+(0 #2' )/'#2/7 %+0(+.+)#($ #(, %"*9/, +(.*23 �*/+)7 3#5+(0 #(, �2#)$+)'� �'6'2$"'/'%%� 0+6'( $"' #��#2'($ +%%9'% #/2'#,7 '<#3+(', $"#$ #2+%' .2*3 -$*��,*4(1 3')"#(+%3%� $"'2' %$+// #��'#2% $* &' # �2'%%+(0 ('', .*2 $"' )2'#$+*( *. 0'(9+(' ,+#/*09' #(, 02#%%2**$% *4('2%"+� *. $2#(%+$+*(#/ E9%$+)' �2*)'%%'% $"#$ 4+// #//*4 /*)#/ �'*�/' $* &' /+%$'(', $* #(, "'',',� �"' #,*�$+*( *. &*$$*3�9� #��2*#)"'% ,'%+0(', $* '()*92#0' �#2$+)+�#$+*( #(, �*%+$+6' %*)+#/ )"#(0' +% ,+2')$', $* �2')+%'/7 $"+% '(,� ( *2,'2 $* +//9%$2#$' $"' �*$'($+#/ 6#/9'% A#(, /+3+$#$+*(%B *. %9)" �'2%�')$+6'% #(, �2#)$+)'% 4' 4+// (*4 .*)9% *( #( '<#3�/' *. #( +(+$+#$+6' 4+$" 4"+)" $"' #9$"*2% 4'2' )/*%'/7 +(6*/6', +( �*2$"'2( 2'/#(,� �"+% 4#% $"' �2,*7(' �*33'3*2#$+*( :2*E')$ A��:B� �� �"' ��: 4#% # 02#%%2**$% -%+(0/' +,'($+$7 $29$" 2')*6'271 �2*E')$ %'$ 9� +( $"' �2,*7(' #2'# *. �*2$" �'/.#%$� �2,*7(' +% # %3#//� �#$"*/+)� 4*25+(0� )/#%%� 2'�9&/+)#( )*339(+$7 4+$" # �*�9/#$+*( *. #��2*<+3#$'/7 C����� $ +% #( '()/#6' #2'#� %922*9(,', *( $"2'' %+,'% &7 ('+0"&*2+(0 :2*$'%$#($ 4*25+(0�)/#%% )*339(+$+'%� 4+$" 4"+)" +$ %"#2'% # %'2+'% *. -+($'2.#)'%1� �% # 4"*/'� �*2$" �'/.#%$ 4#% $"' %+$' .*2 2*90"/7 �� �'2 )'($ *. #// )*(./+)$� 2'/#$', ,'#$"% #(, &'$4''( ;!�! #(, ;!!�� !! �'*�/' .2*3 �2,*7(' 4'2' 5+//', &7 $"' 6#2+*9% �#2$+'% $* $"' )*(./+)$� *(' *. $"' "+0"'%$ 2#$'% *. .#$#/+$+'% *. #(7 )*339(+$7 +( $"' �*2$"� �= �#(7 *. $"' ,'#$"% *))922', +( "+0"/7 )*($'($+*9% )+2)93%$#()'%I %*3' +(6*/6', %$#$' .*2)'% #(, 2'3#+( 9(2'%*/6',� ( �2,*7('� #% '/%'4"'2'� �*/+$+)#/ ,'6'/*�3'($% +( $"' /#$' ;!!�% '(%92', $"#$ $"' 3'3*27 *. %9)" '<�'2+'()'% 4*9/, )*3' $* $"' .*2' #(, �2*6+,', $"' )*($'<$ .*2 $"' %'$$+(0�9� *. $"' ��:� �"' 2+%" �'#)' �2*)'%% 2'%9/$', +( $"' %+0(+(0 *. $"' 8**, �2+,#7 �02''3'($ +( ��2+/ ;!!�� �"' '3'20'()' *. $"+% �#2$+#/ #(, 9('#%7 -�'#)'1 )2'#$', # %�#)' .*2 �'*�/' $* %$#2$ $* 2'./')$ #(, )*($'3�/#$'� �*%%+&/7 .*2 $"' .+2%$ $+3'� 4"#$ $"'7 "#, /+6', $"2*90" #(, '(,92', *6'2 $"' �#%$ $"+2$7 7'#2% *. )*(./+)$� �'$� %9)" ��= �� �2,*7(' �*33'3*2#$+*( :2*E')$� *�� )+$�� (� �� �= �9(,7 #(, �)8*6'2(� *�� )+$�� (� �� #$ 6I �2,*7(' �*33'3*2#$+*( :2*E')$� +,�� �� � C� �. $"'%'� �� 4'2' 5+//', &7 /*7#/+%$ �#2#3+/+$#2+'%� �� &7 3'3&'2% *. $"' %')92+$7 .*2)'% A�2+$+%" #237 #(, �*7#/ �/%$'2 �*(%$#&9/#27B� #(, ;� &7 6#2+*9% 2+%" 2'�9&/+)#( 02*9�%� �(*$"'2 %+< 4'2' 3'3&'2% *. $"' 2+%" �'�9&/+)#( �237 A ��B� 5+//', +(#,6'2$'($/7 4"+/' *( #)$+6' %'26+)'� *(' ,+', #))+,'($#//7� #(, +( $"2'' )#%'% +$ +% 9()/'#2 4"* 4#% 2'%�*(%+&/'� �"' 7*9(0'%$ 6+)$+3 4#% # 7*9(0 &*7 #0', ;�� #(, $"' */,'%$ # 4*3#( #0', C�� &*$" %"*$ ,'#, &7 $"' �2+$+%" #237� �"' $*$#/ *. !! ,'#$"% 2'�2'%'($% *6'2 ;� $+3'% $"' �*2$"'2( 2'/#(, )*(./+)$�2'/#$', ,'#$" 2#$' #6'2#0'� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ 2'./')$+*( 4#% #/%* $#5+(0 �/#)' 4"+/' /+$$/' #$$'($+*( 4#% &'+(0 0+6'( $* 3')"#(+%3% $* ,'#/ 4+$" $"' �#%$ 4+$"+( $"' .*23#/ �*/+$+)#/ �2*)'%%� ?'7 $* 9(,'2%$#(,+(0 4"#$ %"#�'% #(, +(.*23% $"' $2#(%+$+*(#/ E9%$+)' 3')"#(+%3% #,*�$', +( #(7 0+6'( %+$9#$+*( #2' $"' %�')+.+) �*/+$+)#/ �*4'2 ,7(#3+)% #$ �/#7� � .*)9% *( )*339(+$7�&#%', #��2*#)"'% $* $2#(%+$+*(#/ E9%$+)' 3#7� .*2 '<#3�/'� &' $"' 2'%9/$ *. # /#)5 *. +($'2'%$ #3*(0%$ ,*3+(#($ �*/+$+)#/ #)$*2% +( ,'6'/*�+(0 .*23#/ 3')"#(+%3% $* ,'#/ 4+$" $"' /'0#)7 *. $"' �#%$ #% �#2$ *. �*%$�)*(./+)$ $2#(%+$+*(� �"+% 4#% )'2$#+(/7 #( +3�*2$#($ .#)$*2 +( �*2$"'2( 2'/#(,� �"' 8**, �2+,#7 #02''3'($ 4#% # )*3�/'<� 39/$+�.#)'$', ,*)93'($ ,'#/+(0 4+$" # 4+,' 2#(0' *. +%%9'%� H*4'6'2� 4"+/' $"' #02''3'($ (*$', $"#$ $"'2' 3+0"$ &' # ('', .*2 # 2')*0(+$+*( #(, #)5(*4/',0'3'($ *. $"' �*%+$+*( *. 6+)$+3%� +$ 3#,' (* 3'($+*( *. 4"#$ .*23 $"+% 3+0"$ $#5' *2 #(7 3')"#(+%3 .*2 ,'#/+(0 4+$" $"' �#%$� �� �"+% 2'./')$', $"' 6+2$9#/ #&%'()' *. $29$" 2')*6'27 #% #( +%%9' +( $"' $#/5% /'#,+(0 9� $* $"' %+0(+(0 *. $"' #02''3'($ #(, $"' �*/+$+)#/ �2'3+93 �/#)', 9�*( #6*+,+(0 $"' �*$'($+#/ ,+6+%+6'('%% *. -,'#/+(0 4+$" $"' �#%$1� �'2$#+( $2#(%+$+*(#/ E9%$+)' )*()'2(% A%9)" #% $"' 2'.*23 *. �*/+)+(0� #%�')$% *. $"' E9,+)+#/ %7%$'3� #(, $"' 2'/'#%' *. �2+%*('2%B 4'2' ,+%� #002'0#$', .2*3 '#)" *$"'2 #(, $"' �'#)' ,'#/� �+)$+3%1 +%%9'% 4'2' +(+$+#//7 ,'#/$ 4+$" +( $"' 2'�*2$ *. # �+)$+3% �*33+%%+*('2� 2'$+2', %'(+*2 )+6+/ %'26#($ ?'(('$" �/**3.+'/,� �� H*4'6'2� .*2 3#(7 (#$+*(#/+%$% #(, $"' 2'/#$+6'% *. 6+)$+3% *. %$#$' 6+*/'()'� $"' �/**3.+'/, �'�*2$ 2'�2'%'($', # 2'+(.*2)'3'($ *. 4"#$ $"'7 %#4 #% # -"+'2#2)"7 *. 6+)$+3"**,1� +( 4"+)" $"' /+6'% #(, '<�'2+'()'% *. )'2$#+( 6+)$+3% 4'2' �2+6+/'0', *6'2 #(, #&*6' *$"'2%� ( #,,+$+*(� �/**3.+'/, 4#% �2+3#2+/7 )*()'2(', 4+$" $"' )2'#$+*( *. #( #,3+(+%$2#$+6' +(.2#%$29)$92' .*2 $"' ,'/+6'27 *. �2#)$+)#/ %'26+)'% .*2 6+)$+3% 4"+/' ,'.'22+(0 #(7 ,+%)9%%+*( *. E9%$+)' +%%9'%� �"#$ %#+,� $"'2' "#, #/2'#,7 &''( %*3' %$'�% $*4#2,% $"' )2'#$+*( *. �#%$�.*)9%', E9,+)+#/ �2*)'%%'%� H*4'6'2� $"'%' 4'2' )"#20', 4+$" '<#3+(+(0 �#2$+)9/#2 +()+,'($% *2 .#)'$% *. $"' )*(./+)$ A.*2 '<#3�/'� $"' �#6+//' (G9+27 %'$ 9� +( ;!!C $* 2'� '<#3+(' $"' '6'($% *. �/**,7 �9(,#7� �#(9#27 ;!C�B� �$ $"' %#3' $+3'� �9&/+) ,'&#$' *( $"'%' +(G9+2+'%� 6+)$+3%� #(, -,'#/+(0 4+$" $"' �#%$1 "#, #/%* &')*3' '3&2*+/', 4+$" $"' �2*�*%', '#2/7 2'/'#%' *. )*(./+)$�2'/#$', �2+%*('2%� #(, $"' "+0"/7 6*)#/ *��*%+$+*( *. # (93&'2 *. ('4/7 )2'#$', A3#+(/7 �(+*(+%$B 6+)$+3% 02*9�% $* $"' %#3'� $ 4#% #0#+(%$ $"+% &#)5,2*� $"#$ #( #, "*) 02*9� +( �2,*7(' *. 6+)$+3%1 2'/#$+6'%� +($'2'%$', +(,+6+,9#/%� #(, )*339(+$7 #)$+6+%$% ,')+,',� #.$'2 # %'2+'% *. �9&/+) 3''$+(0%� $* �2*,9)' # &**5 $"#$ 4*9/, )*($#+( $"' $'%$+� 3*(+'% *. $"' 2'/#$+6'%� .2+'(,%� #(, '7'4+$('%%'% *. $"' #2'#1% 6+)$+3%� �"+% 4#% ,'%+0(', $* �2*6+,' 2')*0(+$+*( $* $"*%' 4"* "#, &''( 5+//', #(, A�#2$+)9/#2/7 +( $'23% $"' 6+)$+3% *. %$#$' 6+*/'()'B $* )"#//'(0' 4"#$ 4#% ��� �� �02''3'($ 2'#)"', +( $"' 39/$+��#2$7 ('0*$+#$+*(%� ;� ��2+/ ;!!�� �� ?� �/**3.+'/,� ;� ���� 3������� ����8 3�� �� � ��� " ������ ������� =������ $ ������ ��� A;!!CB ��� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ %''( #% # -"+'2#2)"7 *. 6+)$+3%1� �// A'<)'�$ *('B *. $"' )*33+$$'' 3'3&'2% 4'2' .2*3 �2,*7('� �2*3 $"' *9$%'$ $"' ��: 4#% $"'2'.*2' #( '($+2'/7 )*339(+$7�+(%�+2', +(+$+#$+6'� �+$'2#//7 ,*F'(% *. �2,*7(' �'*�/' )*($2+� &9$', $* $"' �2*E')$1% 4*25 $"2*90" $"'+2 +(6*/6'3'($ 4+$" +($'26+'4%� ,#$#&#%' )*//#$+*(� $2#(%)2+&+(0� 2'$92(+(0 ',+$', +($'26+'4%� �2**. 2'#,+(0� #(, 6#2+*9% *$"'2 $#%5%� �"+% )2'#$', 3#(7 ,+..+)9/$+'% &9$ $"' #,6#($#0'% A$"#$ +%� *. %5+//% ,'6'/*�3'($ #(, +( 0#+(+(0 #))'%%B .#2 *9$4'+0"', $"'%' �2*&/'3%� �"' �2,*7(' �*33'3*2#$+*( :2*E')$ )#( &' )"#2#)$'2+F', #% #( '<#3�/' *. :#2$+)+�#$*27 �)$+*( �'%'#2)" A:��B� #% ,+%)9%%', +( ,'$#+/ +( $"' %')$+*( #&*6'� ( �#2$ $"+% +% &')#9%' %9)" �'2%�')$+6'% ,+2')$/7 +(./9'()', $"' 4*25+(0% *. $"' 02*9�� H*4'6'2� $"' 2'/#$+*(%"+� &'$4''( $"' :�� #(, $"' ��: +% '6'( 3*2' #��#2'($ 4"'( 6+'4+(0 $"' �2*E')$ 4+$" $"' &'('.+$ *. "+(,%+0"$� �$ +$% 3*%$ %$2#+0"$.*24#2, :�� +% ,'.+(', &7 $4* 5'7 +($'2� )*((')$', '/'3'($%� +$ +% -#)$+*( 2'%'#2)" $"#$ +% �#2$+)+�#$*27 #(, �#2$+)+� �#$*27 2'%'#2)" $"#$ 9(+$'% 4+$" #)$+*(1� �C �"' #,*�$+*( *. :�� %$2#$'0+'% #(, 3'$"*,*/*0+'% 4#% )'($2#/ $* $"' 4*25 *. $"' ��:� (,'',� $"' �2+()+�/' *. �#2$+)+�#$+*(� ,'.+(', &7 $"' -'3&',,',1 )"#2#)$'2 *. $"' �2*E')$� 4#% $"' ��:1% )*2' )*()'�$� �"' '<�'2+'()' *. $"' 2'%'#2)" $"'2'.*2' �2*6+,'% +(%+0"$% *( $"' 2*/' *. :�� +( 2'%*/6+(0 %9)" 0'('2+) 2'%'#2)" +%%9'% #% #))'%%� -*�'(�('%%1� #(, 9%'� �"' +%%9' *. �#2$+)+�#$+*( +% �#2$+)9/#2/7 2'/'6#($ A#(, �*$'($+#//7 �2*&/'3#$+)B +( # ,+6+,', %*)+'$7 /+5' �*2$"'2( 2'/#(,� �"' #2$+)/' #209'% $"#$� 4"+/' -+($'2�)*339(+$71 4*25 3#7 &' #��2*�2+#$' +( 3#(7 )+2)93%$#()'%� $"'2' #2' #/%* # (93&'2 *. 3'$"*,*/*0+)#/ �2*&/'3% 4+$" %9)" #( #��2*#)"� ( ,'#/+(0 4+$" )'2$#+( +%%9'% +( )'2$#+( #2'#%� +$ 4+// &' %900'%$',� $"'2' #2' �*%+$+6' *9$)*3'% +( 9(,'2$#5+(0 A4"#$ "#% &''( ,'%)2+&', #%B -%+(0/'�+,'($+$71 4*25� �"' +%%9' *. �#2$+)+�#$+*( +% #/%* �#2$+)9/#2/7 %+0(+.+)#($ +( $"' #2'# *. �*%$�)*(./+)$ -$29$"�$'//+(01 4*25� �7 �/#)+(0 -�#2$+)+�#$+*(1 #$ $"' "'#2$ *. +$% #��2*#)"� $"' ��: )*($'%$', # (93&'2 *. +,'#% $"#$ #2' )922'($/7 "+0"/7 +(./9'($+#/ )*()'2(+(0 $"' �92�*%' #(, )*(,9)$ *. �*%$�)*(./+)$ -$29$" $'//+(01� �"' -)*339(+$7�&#%',1 (#$92' *. $"' ��: )#( &' )*($2#%$', $* 3*2' +(%$+$9$+*(#/+F',� -$*��,*4(1 $29$"�$'//+(0 3')"#(+%3%� ( �#2$+)9/#2� $"' %$2'%% *( -�#2$+)+�#$+*(1 �2*3*$', #( '<�/+)+$/7 -6+)$+3�)'($2',1 #0'(,#� �"+% #��2*#)" )"#//'(0', $"' �*%%+&/' 2'/'0#$+*( *. $"' +($'2'%$% *. -6+)$+3%1 #(, �#2$+)+�#($% $* %9)" 4+,'2 %*)+#/ 0*#/% #% -(#$+*(�&9+/,+(01 #(, -2')*()+/+#$+*(1� �&6+*9%/7 $"'%' '(,% 3#7 &' "+0"/7 ,'%+2#&/'� H*4'6'2� $"' #2$+)/' #209'% $"#$� .*2 2'%'#2)"'2% 4*25+(0 +( $"+% .+'/,� $"'2' +% # ('', $* 3#+($#+( # 6'27 )/'#2 .*)9% *( $"' G9'%$+*( *. 4"*3 A#(, 4"#$B -$29$"� $'//+(01 +% �2+3#2+/7 .*2J $ +% %900'%$', $"#$ # :���+(.*23', #��2*#)" $* #// %$#0'% *. $"' 2'%'#2)" �2*)'%% )#( "'/� $* �2*3*$' E9%$ %9)" # .*)9%� ( $92(� $"+% 3#7 '(%92' $"#$ -)*339(+$7�&#%', $29$"�$'//+(01� &7 -0+6+(0 6*+)'1 #(, ��� �C �#"3#(� *�� )+$�� (� �=� �� C�� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ #+,+(0 $"' -2'%$*2#$+*( *. ,+0(+$71 )#( #,6#()' 2'#/ �2*02'%%+6' %*)+#/ )"#(0'� �� ( .#)$ )*339(+$7 �#2$+)+�#$+*( 4#% #/4#7% %''( #% $"' ,'.+(+(0 .'#$92' *. $"' ��:� �"' +,'# *. '3&',,',('%% 9(,'2�+((', $"' �"+/*%*�"7 #(, �2*)'%% $* '(%92' $"#$ $"' )*339(+$7 +( '..')$ $**5 -*4('2%"+�1 #(, )*($2*/ *. $"' ,'%+0(� 2'%'#2)" �2*)'%%� ',+$+(0� 2'$92( �"#%'� #(, �2*,9)$+*( *. $"' &**5� ( �2#)$+)#/ $'23% $"' 02#%%2**$% (#$92' *. $"' �2*E')$ 4#% )29)+#/ +( *2,'2 $* 0#+( $29%$� '(#&/' #))'%%� #(, '%$#&/+%" #( '3�#$"'$+) 2'/#$+*(%"+� 4+$" $"' +($'26+'4''%� �"' ��: %#4 +$%'/. #% �2*6+,+(0 # 3'#(% .*2 +(,+6+,9#/% #(, )*339(+$7 $* '<�2'%% +$%'/. #(, $* �/#)' �2'6+*9%/7 9(2')*2,', '<�'2+'()'% +($* $"' �9&/+) ,*3#+(� �*)#/ )*($2*/ 4#% $"'2'.*2' %''( #% #( #&%*/9$' 2'G9+2'3'($ .*2 $"+% $* &' #)"+'6',� �"+% 4#% �#2$+)9/#2/7 +3�*2$#($ &')#9%' *. $"' ,''��%'#$', ,+%$29%$ *. -*9$%+,'2%1 2'%9/$+(0 .2*3 $"' /*(0 7'#2% *. )*(./+)$ #(, %926'+//#()'� �* &' #( -+(%+,'21 +( # �/#)' /+5' �2,*7(' 3'#($ $"#$ +(,+6+,9#/% "#, $* "#6' $"' .9// )*3�/'3'($ *. )2','($+#/% #(,D*2 /+.' '<�'2+'()'% A/*)#/ &#)502*9(,� .#3+/7 #(, .2+'(,%"+� /+(5%� %�')+.+) �*/+$+)#/ "+%$*27� #(, %* *(B $* #)"+'6' +(%+,'2 %$#$9%� �! �"' (#$92' *. $"' ��: #//*4', +$ #))'%% $* 02*9�%� 6*+)'%� #(, 5(*4/',0' $"#$ 4*9/, *$"'24+%' "#6' &''( +(#))'%%+&/' *2 -*9$�*.�&*9(,%1 .*2 #( -*9$%+,'21� �6'24"'/3+(0/7� 2'%�*(,'($% .'/$ $"#$ $"' %'(%+$+6+$+'% *. $"' �2*E')$ (')'%%+$#$', $"' 9%' *. -+(%+,'2%1 #(, +(,+6+,9#/% $"#$ 4'2' 2'%�')$', #(, 2**$', +( $"' )*339(+$7� ( # )*339(+$7 $"#$ "#% '<�'2+'()', ,')#,'% *. %926'+//#()'� %9%�+)+*( *. *9$%+,'2% #%5+(0 G9'%$+*(% +% # 2'#/+$7� �*2 2'%�*(,'($% $"+% 4#% )/*%'/7 #%%*)+#$', 4+$" $"' +%%9' *. #))'%% #(, $29%$� �"' 9%' *. -+(%+,'2%1 %"*9/, $* &' &#/#()', #0#+(%$ �*%%+&/' ('0#$+6' +3�#)$%� $ 3+0"$ &' $"' )#%' $"#$ .*2 # 6#2+'$7 *. 2'#%*(% /*)#/% 3#7 &' 2'$+)'($ #&*9$ -*�'(+(0 9�1 $* #( -+(%+,'21 4"+)" )*9/, /'#, $* �#2$+#/ #))*9($%� �'+(0 )/*%' $* $"' %9&E')$ 3#$$'2 3+0"$ #/%* �2*,9)' #( +(#&+/+$7 $* -%''1 $"' 6#/+,+$7 *. )*3�'$+(0 #2093'($% *2 $* G9'%$+*( )'2$#+( #))*9($%� �"*%' +(6*/6', +( $"+% $7�' *. 4*25 ('', $* &' 3+(,.9/ *. %9)" -"+,,'(1 $'(%+*(%� *2 �*%%+&/' 9('G9#/ �*4'2 2'/#$+*(% #(, 2'./')$ 9�*( $"'+2 �2#)$+)' #$ '6'27 %$#0' *. $"' �2*)'%%� �/*(0%+,' /*)#/ �#2$+)+�#$+*( #(, )*($2*/� +()/9%+6+$7 4#% %''( #% # 5'7 �2+()+�/' *. $"' �2*E')$1% '$"*%� �"' )2+$'2+*( .*2 +()/9%+*( +( $"' &**5 4#% $"#$ $"' 6+)$+3 "#, $* "#6' &''( # 2'%+,'($ *. �2,*7(' .*2 #$ /'#%$ %*3' �*+($ +( $"'+2 /+.'� � .#2 /'%% )"#//'(0+(0 #��2*#)" .*2 $"' �2*E')$ 4*9/, "#6' &''( $* .*)9% '<)/9%+6'/7 *( ,'#$"% 2'%9/$+(0 .2*3 %$#$' #(, /*7#/+%$ #)$+*(% #(, $* +0(*2' $"*%' )#%'% $"#$ +(6*/6', 2'�9&/+)#( 5+//+(0%� �'3&'2% *. $"' �2*E')$ 2'0#2,', $"'+2 2'3+$ #% #( +()/9%+6' #��2*#)" $* -$29$"�$'//+(01 +( $"#$ +$ ,+, (*$ �2')/9,' #(7*(' *( $"' &#%+% *. $"'+2 '$"(+)D2'/+0+*9% +,'($+$7� �*/+$+)#/ #..+/+#$+*(� #(,D*2 %$#$9% #% # 6+)$+3� �"+% +( 3#(7 4#7% 4#% $"' %$2'(0$" *. $"' �2*E')$� ��C �� �*2 # 3*2' ,'$#+/', ,+%)9%%+*( *. $"' )*()'�$9#/ #(, 3'$"*,*/*0+)#/ #��2*#)" *. $"' ��:� 2'#, �9(,7 #(, �)8*6'2(� *�� )+$� A����B� (� �� �! �9(,7 #(, �)8*6'2(� *�� )+$�� (� �� ��� C� !� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ �� ' �� �������� ��� � ����� �� � ��� � �� �� � �"' 4*25 *. $"' �2*E')$ $**5 .*92 7'#2% #(, 2'%9/$', +( $"' �9&/+)#$+*( *. # &**5 A!�� ���8 ��� )�� �� �� ��B +( ���� $"#$ 4#% &#%', #2*9(, $"' ',+$', $'%$+3*(+'% *. +($'26+'4''%� �6'2 ��� +($'26+'4% 4'2' )#22+', *9$� �"' /+%$ *. +($'26+'4''% 4#% #22+6', #$ +( )*(%9/$#$+*( 4+$" $"' .#3+/+'%� #(, 9%9#//7 +()/9,', # .#3+/7 3'3&'2� )/*%' .2+'(, #(,� 4"'2' �*%%+&/'� #( '7'4+$('%%� �// $"' +($'26+'4% )#22+', *9$ .*2 $"' �2*E')$ 4'2' 2')*2,',� $2#(%)2+&',� #(, ',+$',� �"' +(+$+#/ ',+$', 6'2%+*( 4#% $"'( "#(,', &#)5 $* #(, ,+%)9%%', 4+$" $"' +($'26+'4''� �"'7 4'2' 0+6'( # �'2+*, *. $+3' $* $#/5 $"+% *6'2 4+$" 3'3&'2% *. $"'+2 .#3+/7 #(, $* #/$'2 $"'+2 $'%$+3*(7 +( #(7 4#7 $"'7 .'/$ (')'%%#27� �"+% "#(,+(0�&#)5 �"#%' #,,', 9(.*2'%''( 7'#2% $* $"' 4*25/*#, *. $"' �2*E')$ &9$ 4#% 2'0#2,', #% # 5'7 '/'3'($ *. +$% 4*25+(0 �2*)'%%� $ '(%92', $"#$ +($'26+'4''% "#, # %'(%' *. )*($2*/ #(, *4('2%"+� *6'2 4"#$ 4#% 42+$$'(� :#2$+)+�#($% 4'2' #/%* 0+6'( �2'��9&/+)#$+*( #))'%% $* $"' � ������ )#%' %$9,7 $"#$ +()/9,', +($'26+'4% 4+$" *$"'2 .#3+/7 3'3&'2%� .2+'(,%� #(, '7'4+$('%%'%� �"#(0'% )*9/, *(/7 &' 3#,' $* *('1% *4( $'%$+3*(7 &9$ �#2$+)+�#($% 4'2' '()*92#0', $* &2+(0 $* $"' #$$'($+*( *. $"' ��: #(7 +(#))92#)+'% *2 +%%9'% *. )*()'2( +( $"' )*($'($ *. *$"'2 $'%$+3*(+'%� �#3+/+'% #(, .2+'(,% *.$'( ,+%)9%%', $"'%' +%%9'% #$ 02'#$ /'(0$" #3*(0%$ $"'3%'/6'% #(, 4+$" 3'3&'2% *. $"' �2*E')$� �"' ��: $**5 02'#$ )#2' $* ,+%)9%% #(, #%%'%% $"' /+5'/7 +3�#)$ *. #(7 ('4 +(.*23#$+*( )*($#+(', +( $'%$+3*(+'%� �"'7 %*90"$ #,6+)' .2*3 5'7 +(,+6+,9#/% )/*%' $* $"' .#3+/7 +( G9'%$+*( #(, /*)#/ 6+)$+3%1 02*9�% #&*9$ 4#7% +( 4"+)" $* �2'�#2' 2'/#$+6'% .*2 $"+% ('4%� :2*6+,+(0 # )*(,9+$ *. )*($#)$ 4#% *.$'( 5'7 $* 2'%*/6+(0 ,+..'2� '()'% *. *�+(+*(� �"' 4*25 4#% 9(,*9&$',/7 ,+..+)9/$ #(, )"#//'(0+(0 .*2 #// +(6*/6',� :2*6+,+(0 $"' .9// )#%' %$9,7 $* $"' .#3+/7 *. $"' 6+)$+3 �2*6+,', #( *��*2$9(+$7 .*2 .#3+/+'% $* /'#2( #&*9$ $"' )+2)93%$#()'% %922*9(,+(0 $"'+2 )#%' #(, "'/�', '(%92' $"#$ #(7 �2*&/'3% *2 +%%9'% )*9/, &' 2'%*/6', �2+*2 $* �9&/+)#$+*(� 8+6'( $"' "+0"/7 �'2%*(#/ #(, %'(%+$+6' (#$92' *. $"' 4*25 $"+% 4#% )29)+#/� �"'2' 4'2' #/%* *))#%+*(% 4"'( �'*�/' %*90"$ .92$"'2 )/#2+.+)#$+*( #&*9$ $"' +()+,'($� *2 .2*3 *$"'2 02*9�% *2 *20#(+F#$+*(% +( 2'/#$+*( $* $"' ,'#$"� %9)" #% $"' 2'�9&/+)#( 3*6'3'($� �( *&6+*9% /+3+$#$+*( *. %9)" # �2*E')$� #% ,+%)9%%', &'/*4� +% $"#$ +$ ,*'% (*$ "#6' #))'%% $* *..+)+#/ 2')*2,% #(, #// )*3&#$#($ 02*9�% +(6*/6', +( $"' )*(./+)$� �*$4+$"� %$#(,+(0 $"+%� $"' ��: 3#,' '6'27 '..*2$ $* 0'$ #(%4'2% $* G9'%$+*(% #(, $* 2'%*/6' *9$%$#(,+(0 +%%9'% 4"'('6'2 �*%%+&/'� �*2 $"+%� $"' /*)#/ )"#2#)$'2 *. $"' �2*E')$ 4#% '%%'($+#/� 8'('2#$+(0 /*)#/ #0'()7 #% # 3'#(% $* '3�*4'2+(0 �#2$+)+�#($% 4#% # )'($2#/ #+3 +( $"+%I +$ 4#% $29$" 2')*6'27 &'+(0 �/#7', *9$ #$ +$% 3*%$ +($+3#$' /'6'/� �"#$ %#+,� $"' �2*&/'3 *. 2*3#($+)+F+(0 %9)" (*$+*(% #% -)*339(+$71 #(, -'3�*4'23'($1 %"*9/, #/4#7% &' 5'�$ +( 3+(, +( *2,'2 $* )*9($'2 $"' �*$'($+#/ *. 3#(+�9/#$+*( #(, #&9%' 3#%5+(0 3#20+(#/+F#$+*( #(, '<)/9%+*(� �$"'24+%'� #��#2'($ ��� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ -�#2$+)+�#$+*(1 )#( '($2'()" #(, 2'�2*,9)' 2#$"'2 $"#( )"#//'(0' �*4'2 2'/#$+*(%� !� �'6'2#/ )*339(+$7 .*293% #(, �9&/+) 3''$+(0% 4'2' #/%* *20#(+F',� $* 4"+)" 6+)$+3%1 2'/#$+6'% #/4#7% 2')'+6', �'2%*(#/ +(6+$#$+*(%� �"' 3''$+(0% A0'('2#//7 4'//�#$$'(,', &7 #% 3#(7 #% ��� �'*�/'B #//*4', �'*�/' $* &' 9�,#$', *( $"' ��:1% 4*25 &9$� �'2"#�% 3*2' +3�*2$#($/7� $"'7 4'2' ,'%+0(', $* )2'#$' # �9&/+) %�#)' .*2 *�'( ,+#/*09' #&*9$ "+0"/7 %'(%+$+6' +%%9'% $"#$ +( $"' �#%$ "#, &''( -9(%�*5'( *2 $#&**1 %9&E')$%� �*2 '<#3�/'� ;� /*)#/ �'*�/' "#, &''( 5+//', &7 6#2+*9% 2'�9&/+)#( *20#(+F#$+*(%� %*3' #% #//'0', +(.*23'2%� �"'%' 4'2' #3*(0 $"' 3*%$ )"#//'(0+(0 )#%'% $"' ��: "#, $* ,'#/ 4+$" #(, .''/+(0% 2#( "+0" 4"'( %9)" +%%9'% 4'2' ,+%)9%%',� �"'2' +% (* ,*9&$ $"' %9&E')$ 3#$$'2 4#% )"#//'(0+(0 .*2 $"' ��: #(, )*339(+$7 #/+5'� %$+22+(0 �#+(.9/ 3'3*2+'% .*2 3#(7� �*2 *$"'2% +$ �2*6*5', 39)" %*9/ %'#2)"+(0 #(, 2'./')$+*(� �"' 0*#/% *. $"' ��: #(, $"' �2*)'%% +$ 0'('2#$', 4'2' $"'2'.*2' )/'#2/7 3*2' )*3�/'< #(, ,''�'2 $"#( )*//')$+(0 +($'26+'4% .*2 # &**5� �7 �9%"+(0 $"' &*9(,#2+'% *. 4"#$ 4#% -#))'�$#&/'1 $* #2$+)9/#$'� $"' �2*)'%% 4#% +( 3#(7 4#7% /#7+(0 $"' .*9(,#$+*( .*2 # )*339(+$7 ,2+6'( -$29$"�$'//+(01 �2*)'%%� �� (���� ��� ��� �������� �� �"' #9$"*2% )#22+', *9$ # .*//*4�9� %$9,7 4"'( $"' �2*E')$ '(,', $* .+(, *9$ 4"#$ 4#% 2'0#2,', #% +$% %$2'(0$"% #(, 4'#5('%%'%� !; �"' ,+%)9%%+*( $"#$ .*//*4% ,2#4% 9�*( $"' '6#/9#$+*( .+(,+(0% #(, �2*6+,'% +(%+0"$% +($* %*3' *. $"' 4#7% +( 4"+)" '(0#0+(0 +( $"' �2*E')$ +3�#)$', 9�*( +(,+6+,9#/%� $"'+2 .#3+/+'%� #(, $"' 4+,'2 �2,*7(' )*339(+$7 #(, &'7*(,� �% (*$', +( $"' +($2*,9)$*27 �#2#02#�"� $"+% )#%' %$9,7 +//9%$2#$'% $"' 4#7% +( 4"+)" # &*$$*3�9� -$29$"�$'//+(01 �2*)'%% )#( 3#5' # %+0(+.+)#($ )*($2+&9$+*( $* $2#(%+$+*(#/ E9%$+)'� �')*0(+$+*( #(, #)5(*4/',0'3'($ 4'2' )+$', #% #( +3�*2$#($ *9$)*3' *. $"' ��:� �"' �2*)'%% *..'2', # %�#)' .*2 +(,+6+,9#/% $* $'// $"'+2 %$*27 #(, .*2 �2'6+*9%/7 '<)/9,', *2 3#20+(#/+F', 6*+)'% $* &')*3' �#2$ *. �9&/+) ,+%)*92%'� �"' 2'%$*2#$+*( *. ,+0(+$7� $"2*90" 2')*0(+$+*( #(, #)5(*4/',0'� 3'($ +( $"' &**5� �#2$+)9/#2/7 $* $"' .#3+/+'% *. #//'0', +(.*23'2%� 4#% 2'0#2,', #% # %+0(+.+)#($ *9$)*3' *. $"' �2*E')$� �"' 2'/#$+6'% *. 6+)$+3% *. %$#$' 6+*/'()' 4'2' #/%* �2*6+,', $"' *��*2$9(+$7 $* )"#//'(0' 4"#$ $"'7 �'2)'+6', #% $"' -,'(+#/ *. $29$"1 +( *..+)+#/ #))*9($% #(, 0+6'( �9&/+) ��! !� "+$'� *�� )+$�� (� C!� �� �� !; �9(,7 #(, �)8*6'2(� *�� )+$�� (� �� �"' 2'%'#2)" %'$ *9$ $* )2+$+)#//7 #%%'%% $"' +3�#)$� 6#/9'� #(, /+3+$% *. $"' 4*25 *. $"' ��: #% #( '<#3�/' *. )*339(+$7 -$29$"� $'//+(01� � %'2+'% *. �� +(�,'�$" +($'26+'4% 4'2' )#22+', *9$� ,'%+0(', $* '/+)+$ $"' 6+'4% #(, '<�'2+'()'% *. # %#3�/' *. 5'7 2'%�*(,'($ 02*9�% +()/9,+(0 $"*%' 4"* "#, �#2$+)+�#$', +( $"' �2*E')$ A0#6' $'%$+3*(7B� 2'%+,'($% *. �2,*7(' A(*(��#2$+)+�#($%B� #(, $"' &2*#,'2 (#$+*(#/+%$ #(, �(+*(+%$ )*339(+$+'%� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ 2')*0(+$+*( +( $"' &**5� #/$"*90" $"' /#)5 *. %$#$' #)5(*4/',03'($ 4#% # )29)+#/ /+3+$#$+*(� H*4'6'2� $"' &*$$*3�9� #��2*#)" *. $"' ��: "'/�', '(%92' $"#$ $"' �2*)'%% *. 0#+(+(0 2')*0(+$+*( #(, #)5(*4/',0'3'($ 4#% *(' +( 4"+)" 6+)$+3%1 #(, 2'/#$+6'% .'/$ $"'3%'/6'% $* &' #)$+6' �#2$+)+�#($%� 2#$"'2 $"#( �#%%+6' 2')+�+'($% *. -$29$"�$'//+(01� �*339(+$7 �#2$+)+�#$+*( %$**, *9$ #% $"' %+(0/' 3*%$ +3�*2$#($ #%�')$ *. $"' ��: �2*)'%% .*2 $"' 3#E*2+$7 *. �#2$+)+�#($% +($'26+'4', #(, +(,'', $"' 4+,'2 )*339(+$7� �"' 3'$"*, *. "#(,+(0 &#)5 ',+$', $'%$+3*(+'% )2'#$', # %'(%' *. +(,+6+,9#/ #(, )*//')$+6' *4('2%"+� #(, 4#% 2'0#2,', #% # .9(,#� 3'($#/ %$2'(0$" #(, �*%+$+6' *9$)*3' *. $"' �2*E')$� $ +% +( 0#+(+(0 ,+2')$ )*($2*/ *. $"' 5(*4/',0' �2*,9)', $"2*90" %9)" 4*25 $"#$ '3�*4'23'($ $#5'% �/#)'� ( E9%$ $"' %#3' 4#7� # 6+)$+3�)'($'2', -$29$"�$'//+(01 �2*)'%% ('',% $* �/#)' $"' &'#2'2 *. $'%$+3*(7 #$ $"' "'#2$ *. $"' ,')+%+*(�3#5+(0 �2*)'%%� �6'24"'/3+(0/7 +$ 4#% .'/$ $"#$ $"' %'(%+$+6+$+'% *. $"' �2*E')$ (')'%%+$#$', $"' 9%' *. -+(%+,'2%1 #(, +(,+6+,9#/% $"#$ 4'2' 2'%�')$', #(, 2**$', +( $"' )*339(+$7� � 5'7 +%%9' *. )*()'2( 4"'( ,*+(0 %9)" %'(%+$+6' 4*25 +% $"' +%%9' *. $29%$� �(,'2$#5+(0 4*25 4+$" -+(%+,'2%1 $29%$', &7 /*)#/ �'*�/' )2'#$', .#2 02'#$'2 �*%%+&+/+$+'% #(, �2*,9)', $"' %*2$ *. 5(*4/',0' *.$'( -"+,,'(1 .2*3 -*9$%+,'2%1� �(7 �2*)'%% ,'6+%+(0 4+,'2 %$2#$'0+'% $* ,'#/ 4+$" $"' /'0#)7 *. $"' �#%$ ('',% $* &' )*(%)+*9% *. $"' �2*&/'3% *. #))'%%+(0 %9)" '<�'2+'()'%� �"' 9%' *. -+(%+,'2%1 )*9/, E9%$ #% )*()'+6#&/7 '<)/9,' )'2$#+( -6*+)'%1 #(, /'#, $* 09#2,', #(, �#2$+#/ #))*9($% #(, %'/.� )'(%*2%"+�� $ +% $"'2'.*2' +3�'2#$+6' $"#$ $"*%' +(6*/6', +( %9)" 4*25 #2' )*(%)+*9% *. $"+% $'(%+*( #(, #2' .9//7 2'./')$+6' +( $"'+2 �2#)$+)' $"2*90"*9$� !� ($2#�)*339(+$7 )*(./+)$ 2'%*/9$+*( 4#% $"' 3*%$ .2'G9'($/7 3'($+*(', �*%+$+6' *9$)*3'% *. $"' ��: �2*)'%%� � %+0(+.+)#($ )*($2+&9$+*( *. &*$$*3� 9� �#2$+)+�#$*27 -$29$"�$'//+(01 +% +$% )#�#)+$7 $* 0'$ $* $"' (+$$7�02+$$7 *. +($2#� )*339(+$7 )*(./+)$� 9(,'2%$#(, $"' ,7(#3+)%� #(, &' #&/' $* 2'%*/6' )'2$#+( 9(2'%*/6', +%%9'%� �2,*7(' +% (*$ # "*3*0'(*9% )*339(+$7 #(, $"'2' #2' 6'27 2'#/ #(, /*(0�%$#(,+(0 ,+6+%+*(%� %*3' *. 4"+)" #2' # &7��2*,9)$ *. $"' �*/+$+)#/ )*(./+)$� �"' �2*E')$ )2'#$', # �2*)'%% *2 3')"#(+%3 $* ,'#/ 4+$" ,+..+)9/$ +($'2(#/ )*(./+)$�2'/#$', +%%9'% #(, �2*3*$', 2'%*/9$+*( *. 4"#$ 4'2' *.$'( %''( #% -$#&** %9&E')$%1 #$ # (93&'2 *. ,+..'2'($ /'6'/%� �"' '<�'2+'()' *. $"' ��: 4*9/, %900'%$ $"#$ # &*$$*3�9� �#2$+)+�#$*27 #��2*#)" )#( 3#5' # %+0(+.+)#($ )*($2+&9$+*( $* )2'#$+(0 ,+#/*09' #$ $"' )*339(+$7 /'6'/� �(' *. $"' 3*%$ %'2+*9% /+3+$#$+*(% *. 9(*..+)+#/ &*$$*3�9� �2*)'%%'% +( 0'('2#/ +% $"'+2 +(#&+/+$7 $* 9()*6'2 �2'6+*9%/7 9(5(*4( +(.*23#$+*( .2*3 *9$%+,' #0'()+'%� *&$#+(+(0 %*3' .*23 *. *..+)+#/ 2')*0(+$+*( *2 2')*3�'(%'� *2 +( �92%9+(0 #))*9($#&+/+$7� �"#$ %#+,� *..+)+#/ $29$"�2')*6'27 +(+$+#$+6'% )#( $"'3%'/6'% .#)' "90' �2*&/'3% +( $"+% 2'0#2,� (*$ /'#%$ $"2*90" $"' )*($+(9', *��*%+$+*( #(, /#)5 *. )**�'2#$+*( *. %$#$' #0'()+'% $* .+(,+(0 4#7% *. �!� !� �9(,7 #(, �)8*6'2(� *�� )+$�� (� �� ��� �� C� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ ,'#/+(0 4+$" �#%$ +(E9%$+)'� !� �*$$*3�9� 9(*..+)+#/ �2*)'%%'% )#( &' 3*2' #,'�$ #$ 9()*6'2+(0 �2'6+*9%/7 -"+,,'( $29$"%1 $"#$ )#( /'#, *( $* *$"'2 $"+(0%� �"'7 )#( &' "+0"/7 '..')$+6' +( &9+/,+(0 # -)#%' $* #(%4'21� �/#7+(0 # 6+$#/ 2*/' +( ,*)93'($+(0 "93#( 2+0"$% #&9%'% #(, �#$$'2(% *. 6+*/#$+*(% $"#$ 3#5' +$ +()2'#%+(0/7 ,+..+)9/$ .*2 $"' %$#$' $* )*($+(9' $* ,'(7 )9/�#&+/+$7� �*2 %*3' +($'26+'4''% -$29$"�$'//+(01 4#% 2'0#2,', #% �#2$ *.� &9$ (*$ # %9&%$+$9$' .*2� %''5+(0 E9%$+)'� �"'2' 4#% # %'(%' .*2 %*3' +( 4"+)" $"' 2')*0(+$+*( ,'2+6', .2*3 $"'+2 +(6*/6'3'($ +( $"' �2*E')$ 4#% +$%'/. # A%9..+)+'($B .*23 *. E9%$+)'� ( $"'%' )+2)93%$#()'%� -$29$"1 +% 9%', $* ,'(*9()' *2 )"#//'(0' # �'2)'+6', +(E9%$+)'� �*2 *$"'2% $"+% 4#% (*$ $"' )#%' #(, $"'7 %#4 # ('', .*2 /'0#/ #(, E9,+)+#/ #6'(9'% $* &' �92%9', #% $"*2*90"/7 #% �*%%+&/'� �+(#//7� �'2"#�% $"' 3*%$ %+0(+.+)#($ /+3+$#$+*( *. #// .*2 $"' ��: )*()'2(', $"' ,+..+)9/$+'% *. )*(,9)$+(0 %9)" %'(%+$+6' 2'%'#2)" -#)2*%% $"' ,+6+,'1� �"+% )'2$#+(/7 �2*6', $* &' #( +%%9' .*2 $"' ��:� :2*E')$% 4+$" # %+(0/' +,'($+$7 .*)9% )#// +($* G9'%$+*( $"' 6#/+,+$7 *. $"' -9($*/, $29$"%1 $"'7 #2' #&/' $* $'//� $"*90" #0#+(� %9)" )2+$+)+%3% )#( #/%* &' /'6'//', #$ %$#$'�/', �2*)'%%'%� != ������� �� "#$ 4' "#6' %*90"$ $* #209' "'2' +% $"#$ $"' )922'($ ,*3+(#($ )*()'�$+*(% *. $2#(%+$+*(� E9%$+)'� #(, ,'3*)2#)7� 4+$"+( $"' )*($'<$ *. $"' �2'6#+/+(0 �*%$�)*(./+)$ #0'(,#� $'(, $* ,'/+3+$ $"' �*$'($+#/ *. %*)+#/ #(, �*/+$+)#/ )"#(0' +( �*%$�)*(./+)$ %*)+'$+'%� ( %* ,*+(0 $"'7 )#( #)$ $* ,'(7 $"' 0'(9+(' '<'2)+%' *. 2+0"$% #(, $"' �2*3*$+*( *. #)$+6' �*/+$+)#/ #0'()7 *( $"' �#2$ *. $"'+2 �*�9/#$+*(%� �"+% +% # �2#)$+)#/ #% 4'// #% # $"'*2'$+)#/ +%%9'� �9%$#+(� #&+/+$7 +% 5'7 $* $"' /*(0�$'23 %9))'%% *. #(7 �*%$�)*(./+)$ E9%$+)' �2*02#33'� �"*%' )*()'+6', #(, +3�*%', .2*3 $"' $*� ,*4( $"#$ ,* (*$ "#6' /*)#/ *4('2%"+� #(, 0'(9+(' �#2$+)+�#$+*(� #2' .#2 /'%% /+5'/7 $* "#6' /'0+$+3#)7� &' '..')$+6'� #(, $"'2'.*2' %9%$#+(#&/' #.$'2 $"' %�*(%*2% /'#6'� ' #2' (*$ %900'%$+(0 $"#$ &*$$*3�9� +(+$+#$+6'% 2'�2'%'($ #( #/$'2(#$+6' $* $"' '<+%$+(0 $*��,*4( #��2*#)"'%� "#$ 4' #2' #209+(0� #(, "#6' %*90"$ $* +//9%$2#$' 4+$" $"' �2,*7(' )#%' %$9,7� +% $"#$ # &*$$*3�9�� �#2$+)+�#$*27 -$29$"�$'//+(01 #��2*#)" "#% �#2$+)9/#2 %$2'(0$"% #(, 39)" $* *..'2 $2#(%+$+*(#/ E9%$+)' %$2#$'0+'% #(, )*(./+)$ $2#(%.*23#$+*( +( $"' /*(0�$'23� � &*$$*3�9�� �#2$+)+�#$*27 #��2*#)" �9$% )*339(+$+'% #(, $"*%' *( $"' .2*($ /+(' #(, 2')'+6+(0 '(, *. 6+*/'($ )*(./+)$ #$ $"' 6'27 )'($2' *. $2#(%+$+*(#/ E9%$+)'� �% #209',� # %+0(+.+)#($ )*($2+&9$+*( *. %9)" #( #��2*#)" +% +$% )#�#)+$7 $* 0'$ $* $"' (+$$7�02+$$7 *. +($2#�)*339(+$7 )*(./+)$� 9(,'2%$#(, $"' �!; !� �''� .*2 '<#3�/'� �� �*/%$*( #(, :� �)2#$*(� - ( $"' �9// 8/#2' *. �(0/+%" :*/+$+)%1 A����B =� +���� *� � $���� �=C �=� #$ ���� != �� �$#(/'7� -�29$" �*33+%%+*(% #(, $"' �')*0(+$+*( *. �$#$' �2+3'1 A����B =� +���� *� � $���� ��� !C� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ /*)#/ ,7(#3+)%� )2'#$' ,+#/*09'� #(, &' )*($'<$�%�')+.+)� 8+6'( #��2*�2+#$' 2'%*92)'%� %9)" +(+$+#$+6'% "#6' $"' �*$'($+#/ $* %$+39/#$' %*)+'$7�4+,' ,+#/*09'� %*3'$"+(0 4"+)" +% 9%9#//7 #$$2+&9$', $* *..+)+#/ -$29$"�$'//+(01 �2*)'%%'%� ( 0'('2#/� "*4'6'2� $2#(%+$+*(#/ E9%$+)' ,+%)*92%' "#% $'(,', $* 9(,'26#/9' # &*$$*3�9�� �#2$+)+�#$*27 #��2*#)" #(, +$ 2'3#+(% /#20'/7 9(,'2� $"'*2+F', #(, 9(,'2�2'%'#2)"',� �"'2' #2' 9(,'(+#&/7 # 2#(0' *. ,+..+)9/$ )"#//'(0'% +(6*/6', +( #$$'3�$+(0 $* �2*3*$' #(, '%$#&/+%" /*)#//7 *4(', �#2$+)+�#$*27 $2#(%+$+*(#/ E9%$+)' #��2*#)"'%� �"'2' #2' 6#/+, G9'%$+*(% #2*9(, 4"* $"' /*)#/% #2'� 4"* %�'#5% .*2 4"*3� #(, 4"#$ '<#)$/7 ,*'% /*)#/ *4('2%"+� #(, �#2$+)+�#$+*( 3'#(J �*2 +% $"' 4"*/'%#/' 6#/*2+F#$+*( *. -+(%+,'2%1 $* $"' '<)/9%+*( *. -*9$%+,'2%1 '+$"'2 # %9%$#+(#&/' *2 ,'%+2#&/' #��2*#)"� H*4� $**� )#( �2*�*� ('($% *. �#2$+)+�#$*27 #��2*#)"'% '(%92' $"#$ $"'7 ,* (*$ &')*3' 3'2' 4+(,*4 ,2'%%+(0� *2 # 3'#(% $* +()9/)#$' '<$'2(#/ +,'*/*0+)#/ �2*E')$% 9(,'2 $"' 09+%' *. /*)#/ )*($2*/J �"' )*(9(,293 9/$+3#$'/7 +% *(' )*33*( $* # 2#(0' *. *$"'2 .+'/,%I "*4 $* )*3&+(' $"' �*$'($+#//7 /#9,#&/' '(,% *. # 0/*&#/ "93#( 2+0"$% )9/$92' 4+$"*9$ $"' 3'#(% *. $"'+2 +($2*,9)$+*( #)$+(0 #% $"' ('0#$+*( *. $"*%' 6'27 2+0"$%� �'6'2$"'/'%%� #% $"' %�"'2' *. $2#(%+$+*(#/ E9%$+)' #��'#2 $* 3*6' '6'2 3*2' 4+,'/7 *9$ +($* $"' 2'#/3 *. '(0'(,'2+(0 %*)+#/ #(, �*/+$+)#/ )"#(0'� $"'( $"' �2+6+/'0+(0 *. *..+)+#/ #0'()+'%� +($'2(#$+*(#/ +(%$+$9$+*(%� $"' /#4 #(, /'0#/ -'<�'2$+%'1 *6'2 #(, #&*6' /*)#//7 0'('2#$', '3&',,', +(+$+#$+6'% 39%$ &' &2*90"$ +()2'#%+(0/7 +($* G9'%$+*(� �( *&6+*9% %*92)' $* +(.*23 %9)" # 2'$"+(5� #% 4' ,+%)*6'2', *92%'/6'% +( )#227+(0 *9$ 4*25 +( �*2$"'2( 2'/#(,� +% 2'#,+/7 #6#+/#&/'� . $2#(%+$+*(#/ E9%$+)' +% $* $#5' �#2$+)+�#$+*( %'2+*9%/7 $"'( �'2"#�% # 0**, %$#2$+(0 �/#)' +% $* +,'($+.7 %*3' *. $"' 5'7 09+,+(0 �2+()+�/'% $"#$ "#6' &''( %+0(#//', +( $"' %9&%$#($+#/ /+$'2#$92'� '<�'2+'()'� #(, %$*)5 *. 5(*4/',0' ,'2+6', .2*3 ,'6'/*�3'($ #(, �#2$+)+� �#$*27 $"'*27 #(, �2#)$+)'� �"'2' +% # ('', $* .*%$'2 #0'()7 &7 $"+(5+(0 +3#0+(#$+6'/7 *9$%+,' $"' -�2'6#+/+(0 $2#(%+$+*(#/ E9%$+)' &*<1� H*4'6'2� $"' .+2%$ %$'� $* ,'6'/*�+(0 %$2#$'0+'% +% $* )2'#$' %�#)'% .*2 �'*�/' $* ,'$'23+('� %"#�'� #(, ,'6'/*� %*/9$+*(% .*2 $"'3%'/6'%� �!� � ���� �"' �9$"*2� �*92(#/ �*3�+/#$+*( � ���� �#2,+.. �(+6'2%+$7 �#4 �)"**/ 
work_lv3jsej6qng35gg6od7jcvet4i	----	1 Forgiveness as Potentiality in Criminal Justice Aaron Pycroft University of Portsmouth UK Clemens Bartollas University of Northern Iowa Abstract To explore the problematic of forgiveness in criminal justice we argue for and utilise the deep homologies that exist between the continental philosophical tradition and approaches to complexity theory (the potential to realise new dynamical states). Through taking a hermeneutical narrative approach we argue that studied together they provide us with new insights into questions of punishment, retribution and rehabilitation and enable us to better understand the connections that exist between victims of crime, perpetrators and the community through examination of the content of dominant narratives that emerge in the historical relationship between theology and law; gain insight into an increased path lock (entropic justice) with respect to retribution in liberal democracies such as the USA and UK based upon decomposition of the Judaeo-Christian message; and examine what contemporary stories of forgiveness reveal with respect to accessing new dynamical states and new ways of doing justice that challenge dominant and reductionist narrative. Introduction In examining the concept of forgiveness we do so with some trepidation and conscious of Spinoza’s dictum that all determination is negation (see e.g. Melamed, 2012) i.e. the more that we examine the concept and seek to reduce it to component parts the less we are able to say what it is; it is an irreducible concept. Different methods are required then to explore the elusive problematic of forgiveness in criminal justice and to achieve this we tentatively seek to argue for and utilise the deep homologies that exist between the continental philosophical tradition and approaches to complexity theory. Our approach is one of hermeneutical narrative in which we seek to bring new resources to our criminological perspective through occupying liminal spaces and “Where one tries to get one’s bearings as 2 one transits between two (or more) worlds” (Kearney, 2011: xvii). This process is always uncertain, un-finalizable and inevitably partial and therefore difficult but we seek to engage with diverse thinkers and traditions who have the potential to offer significant insights to criminology and the practices of justice to further important dialogue. We argue for a conceptualisation of forgiveness as an expression of multiplicity in unity (it is more than the sum of its parts) and which is rooted in the irreducible and emergent relationships between the victim, the perpetrator and wider society and to argue therefore that it is not possible to tell one exclusive story (dominant narrative) about forgiveness; to reduce our explanatory perspective to one of either victim, perpetrator or community is to decompose the system. We argue that this approach enables us to: (1) understand the connections that exist between these actors through the content of dominant narrative that emerges in the historical relationship between theology and law (2) gain insight into an increased path lock (entropic justice) with respect to retribution in liberal democracies such as the USA and UK based upon decomposition of the Judaeo-Christian message and (3) examine what contemporary stories1 of forgiveness reveal with respect to accessing new dynamical states and new ways of doing justice that challenge that dominant and reductionist narrative. Both forgiveness and retribution imply the creation of a new moral community informed by but not anchored in the past (Verdeja, 2004:39) but we argue for a new teleological perspective in criminology which addresses the importance of the arrow of time, past, present and future and which avoids a collapse into utilitarian pragmatism2. This teleological 1 We take narrative to imply the “top down” need for control and stories as the “bottom up” demand for ethics (see Verdeja, 2004). 2 The Utilitarian concepts of less eligibility (see Sieh, 1989) and risk management render the future unrealizable through a closing down of opportunity and potential through the removal of resources that would allow for 3 perspective is grounded in choice which is implicitly and explicitly ethical. This choice is then the potential for the creation of a new and positive virtual image of perpetrators of crime that can be projected and actualised in a telos of now. We argue that forgiveness is the dynamic and emergent space onto which these identities are projected in and through time. Our approach is to argue that forgiveness cannot be amnesia but rather that allows for the past (the crime itself and its impact), the present (the practices of justice) and the future (the potential of becoming) to be revealed3. We re-examine foundational Christian texts in the light of developments in both hermeneutical approaches to complexity theory and continental philosophy to provide examples of forgiveness that challenge instrumentalism at the service of final, entropic categories of justice which undermine (by an effective closing down) the possibilities of becoming and the accessing of new dynamical states for victims, perpetrators and communities. Continental philosophy, hermeneutics and complexity theory We take continental philosophy as different from analytic philosophy and rejecting of the latter’s emphases on positivist and empiricist perspectives4. Whilst the continuities and discontinuities of these two traditions are much debated we use Critchley’s argument the potential to access new dynamical states. This is entropic and self-defeating practice as it contains an essential nihilism in that firstly it assumes the rationality of individual actors and therefore the collective calculus of the greatest happiness for the greatest number to be correct, even presumably in the justification of collective violence; but secondly because we cannot say with any certainty in the face of human passions (proclaimed as justified and requiring of satisfaction) precisely where, what or when the end is that truly justifies the means. This problem of the entropic nature of utilitarian eschatology is stated by Nelson (Nelson, 1991: 339) when he says that utilitarianism “Implies a surprising prediction about the future, viz, that all experience of pleasure and pain must end once and for all, or infinitely dwindle.” 3 This approach also rejects dialectical method (the negation of the negation) whereby the past is synthetically dissolved in the creation of a new reality. Complexity theory demonstrates that all complex systems are historical systems that influence the present (see below). 4 See Arrigo and Williams (2014) on the relationships between complexity theory, continental philosophy and Psychological Jurisprudence in criminology 4 (Critchley, 1997:355) that the continental tradition “…takes the form of a critical (emphasis in the original) confrontation with the history of philosophy…with…a critical dismantling of the tradition in terms of what has been unthought and what remains to be thought.” Critchley (Critchley, 1997: 356) argues that this leads to “the demand for a transformative practice of philosophy, art, poetry or thinking…that would be capable of addressing, criticizing and ultimately redeeming the present.” With respect to this continental tradition and the philosophy of complexity theory Paul Cilliers (Cilliers, 1998, 2005) argues that both deconstruction and complexity reveals both the limits of our knowledge and the irreducibility of meaning but in a non-relativistic way5. This limitation is brought about because we inhabit the systems that we study and therefore we can have no absolute and objective knowledge of our lived experience. Meaning and knowledge is contingent and contextual and because it cannot be represented and the context is not transparent we have to choose our hermeneutical frameworks but ultimately “A radical ‘undecidability’ surrounds all signification; there can be no absolute origin or site of meeting.” (Kearney and Rainwater, 1996:439). It is due to this choice, Cilliers argues that we cannot escape what is ethical or normative. Christian scriptures are key texts that have had a dominant but contradictory hegemony (or in the Derridan sense of instability of signs) and importantly in the development of the modern state and apparatus of justice. These historical transformations (bifurcations) are demonstrated through the evolution of resources that are foundational to a Jewish sect committed to radical forgiveness and non-violence through time becoming a justification for 5 It is beyond the scope of this paper to discuss the existence of absolutes in the platonic sense and as utilized in scientific method but see Pycroft (forthcoming) for a discussion of the relationships between phenomenology, complexity theory and criminology 5 punishment and retribution; so much so that the use of these non-violent resources are now controversial in for example restorative justice due to their perceived retributive nature (see Johnstone and Ness, 2007) and religion and punitive ideology would seem to be strongly correlated (e.g. see Baker and Booth, 2016). A hermeneutical approach as a development of continental philosophy helps us to re-examine these texts within the context of their traditions and the hermeneutical circles that are created through those traditions that identify the core texts which are then used to legitimate their activities (see Pellauer and Dauenhauer, 2016). In utilizing insights from hermeneutics we will follow the work of Paul Ricoeur in advancing from a hermeneutic of suspicion to one of affirmation (see Kearney, 1986). Complexity theory itself divides along traditional ontological, epistemological and methodological lines in science, social science and social theory with debates examining the relationships between mathematically deterministic and constructionist approaches (see Pycroft and Bartollas, 2014). However broadly speaking complexity theory in its non- reductionist (whole systems6) approach contrasts to the Newtonian paradigm and its positivist (and analytical philosophical) assumptions enshrined in criminal justice and reflects the argument of Milovanovic (Milovanovic, 2014) that approaches to criminal justice grounded in Newtonian thinking and method are lacking in any bone fide statement on human agency. Complexity theory demonstrates that all systems such as justice systems are driven from the bottom up, by lower order interactions from which the whole system emerges. To understand the nature and behaviour of complex systems reductionist and 6 The language of whole systems can be ethically problematic. We use it as a contrast to the reductionism inherent in positivism and in the sense that Levinas would distinguish between totalizers and infinitizers; with the former being satisfied with themselves and the systems they can organize and control and the latter being dissatisfied and who strive for what is other than themselves (see Levinas, 1969) 6 positivist experimental methodologies reified by positivist approaches are ineffective, as when we abstract from the whole to the part, we can only understand the part and not the whole. We are interested to take an approach which rather than reducing and separating component parts in the practice of justice (e.g. prioritizing retributive passions and the demand of justice on the part of victims and communities or asserting the primacy of rehabilitation in reducing crime) look to the ways in which they interact together and co- constitute each other. Complex systems allow us to confront history as they are historical systems with a memory and which we are constitutive of. We look then to a post Newtonian (post-positivist) account of justice based upon an ontological and epistemological understanding of conjunction (connectionism and emergence) rather than disjunction (reductionism and closing off). As Bartollas (Bartollas, 2014:276) argues: A post-positivist understanding sees community as an extension of neither individualism nor collectivism. The intrinsic nature of community, according to a post-positivist’s view, denies the notion that individuals profit by serving themselves or that individuals can only define themselves through a collective movement. Fostering community does not require participants to lose themselves, but to join with others to become more than themselves.7 These non-totalising perspectives recognise the heterogeneity of the whole system that allows for new dynamical spaces to be created which may challenge the dominant 7 Our approach is consistent with Peacemaking Criminology which to quote Hal Pepinksy (Pepinksy, 2013:320) is concerned with “How to transform violence into cooperation, of how to make peace from the intrapersonal to global levels... (building)… on literature from all manner of sources…most of which is by folks who do not call themselves criminologists either… and a concern for understanding how to transform violence transcends normal academic boundaries.” Our approach is also consistent with Pepinsky’s argument (2013) that Peacemaking Criminology also understands that in crime and criminality there is no political neutrality and that people are locked in set agendas; that stories are data for understanding the social construction of crime; that you cannot impose peacemaking; that peacemaking acts as an attractor (see below) spawning empathy and compassion; outcomes from peacemaking are very uncertain with results not always known. 7 (deterministic) narratives of justice from the bottom up and through an open ended commitment to the enhancement of non-linearity in the forms of uncertainty, undecidability and unfinalizability. Forgiveness is exemplary of non-linearity as it is not proportionate to a crime committed, cannot be required, and may be unlooked for (by victims, perpetrators and communities). The following principles of complexity theory are most significant for our discussion in relation to forgiveness (for a full discussion of the principles in themselves see Pycroft and Bartollas, 2014; Arrigo and Barrett, 2008; Byrne, 1998; Cilliers, 1998) and we argue demonstrate the ways in which history (1) potentially becomes locked into particular narratives but also (2) allows for the creation of new possibilities and dynamical states. The Arrow of Time Due to being open systems complex systems such as justice systems are subject to the arrow to time. A key feature of Newtonian mechanics is that time is reversible whereas complexity theory demonstrates that this is not the case, that the material causes of the past cannot be changed because systems are constantly in evolutionary flux, and moving forward. Our concern is with the ways in which time and the problem of irreversibility is experienced by victims, perpetrators and wider society. Bergson (Bergson, 1971, 1988) argues that the past cannot be changed but its virtual dimensions can be. This is expressed by Žižek (Žižek, 2011: 28) as “When something radically new emerges it retroactively creates its own possibility, its own causes or conditions. A potentiality can be inserted into (or withdrawn from) past reality.” The arrow of time is central to discussions on forgiveness as the material past cannot be changed (Arendt, 1958) but the emergent (transcendent/virtual) properties inherent 8 within complex systems allow us to address those issues because the whole is always more than the sum of its parts. Iteration and path dependence Modern justice systems are founded and grounded in features and functions that have founding myths and including in the practice of rehabilitation. Historical practice has woven together the exercise of utilitarian power (myths of rationality and social contract giving rise to concepts of less eligibility and risk assessment) alongside the explicitly theological language of rehabilitation (the virtues of hope and making good focusing on pro-social attitudes to access social capital). As Hathaway (Hathaway, 2003) argues it is impossible to understand the law as it is practiced now without understanding the law as it has been practiced in the past. Hathaway in examining the role of history in law highlights the importance of tradition in constitutional interpretation, the role of historical narrative in decision making and the value of precedent. Furthermore advances in complexity theory demonstrate the nature of cultural and organizational path dependence with Sydow et al (Sydow et al, 2009) arguing that the process has the following properties: that outcomes are unpredictable and indeterminate; that several outcomes are possible and that history selects from the alternatives; trapped actors cannot shift the patterns once established; the path lock eventually leads to inferior and sub optimal outcomes (entropy). So with respect to the practices of criminal justice we would argue that an overt focus on retribution and punishment is not the only possible outcome from the interaction of processes under consideration, but we need to understand how this path lock has emerged and how it can be shifted. To use the language of Deleuze and Guattari (see Massumi, 1996) punishment in the forms of retribution and incarceration has reached a plateau of intensity that is not 9 automatically dissipated in a climax leading to a state of rest. In practice there is a heightening of energies which are sustained and dynamic enough to appropriate from each other and weave together to form any number of different reinforcing connections. Sensitivity to initial conditions and bifurcations Very small changes in the lower order interactions of a complex system can have a massive impact on the system overall. These are the emergent properties of the system which cannot be predicted or mapped mathematically as it is always more than the sum of its parts (transcendent properties). These small changes may lead to changes in the trajectory of the system and the accessing of new dynamical states. The development of the Jewish sect that became Christianity and its influence on the development of modern states and (amongst other things) justice systems are examples of this that we discuss below. What becomes evident is precisely the instability of Christian8 signs of forgiveness across history and the ways in which they can become appropriated and subverted to very different ends. Attractor states Attractors are like magnets that pull/push systems in particular directions in time and space and which exhibit regularities and apparent patterns of stability (chaotic, edge of chaos and equilibrium). Due to its highly mathematical nature attractor theory (see Guastello and Liebovitch, 2009) has been contentious in postmodern conceptions of complexity with for example Cilliers (Cilliers, 1998) arguing that they are another aspect of reductionism that do 8 Our focus is on Judeo-Christian theology as being foundational to modern western societies and legal systems, however we also acknowledge the importance of Islamic culture and science to that development from the 7th Century CE onwards, not least in rediscovery of ancient Greek philosophy through the work of Ibn Sīnā which did much to invigorate scholastic thought; Thomas Aquinas referred to him as “The Commentator.” The contribution of Islamic thought to understandings of forgiveness and its relationship to Christianity and western culture is an important area for development and research. See Menocal (2002). 10 not sufficiently address aspects of the whole system. However within hermeneutics and social theory there has been an interest in strange attractors (for example in the work of Deleuze and Guattari (see Massumi, 1996). A strange (sometimes called chaotic) attractor is one in which there are patterns and regularities but the system never follows the same trajectory (see Pycroft, 2014). There are processes of both expansion and contraction and the chaotic motion operates in more than one dimension. There is order and control although each order parameter is affected by the behaviour of other order parameters. These attractors are prone to bifurcate, that is become increasingly complex by accessing new dynamical states in their environment; this is effect and effect rather than cause and effect. This makes the evolution of the whole system and its trajectories fundamentally uncertain. Hermeneutically strange attractors are examples of qualitative multiplicities, containing infinite possibilities that are not foreseeable, with the realisation of the possible only existing in retrospect. This then allows for understanding the divergence and convergence and complexity of human lived experience grounded in relational time. Girard’s (e.g. Girard, 1978, 1999) scapegoating thesis is highly compatible with complexity and attractor theory as his approach charts the ways in which groups, communities, societies achieve equilibrium through the scapegoating mechanism: Faced with some crisis (chaos) the use of violence against the apparent perpetrator of the crisis (edge of chaos) restores equilibrium to the community. Scapegoating serves as a fundamental cultural attractor that arises from our evolutionary inheritance. Girard’s is a theory grounded in the mimetic nature of desire and human passions. His idea is that in desiring what others have then we model ourselves on those people who then become our rivals, and which leads to periodic outbreaks of mimetic violence; this violence is constrained in unequal societies but particularly comes 11 to the fore when dominant groups find themselves in positions of economic and social equality with minority groups. With respect to criminal justice the Girardian perspective helps us to further understand the locking in of revenge and retribution: For example with respect to victims and perpetrators under the justice model once punishment is completed the perpetrator is now innocent and justly expectant of the rights and resources of society to be restored or given to them. However it is this that brings about a mimetic crisis leading to the scapegoating of ex-offenders who for legal purposes are now innocent. The form that this scapegoating takes is enshrined in utilitarian teleology (the concepts of less eligibility and risk managements and reinforced by satisfaction theory (discussed below) by maintaining that the violence inherent in the continued denunciation by the community ostensibly in support of the original victim is justified over and above the rights of the person who has served their punishment on the basis of the further risks that they might present and the necessity of a deterrent effect. Dissipative structures Forgiveness and its relationship to the energy of human passions within criminal justice has been discussed by Murphy and Hampton (Murphy and Hampton, 1988) and Lacey and Pickard (Lacey and Pickard, 2015) whereby the desire for justice on the part of victims and communities are used to reinforce punitive models of justice. Energy is the key analogy in complex systems (see Pycroft, 2014; Byrne, 1998) and complex systems are open systems constantly interacting with their environment to gain new energy, to enhance that energy and then to dissipate it back into the environment. At times the environment may deprive the system of energy or overload it thus driving change (Byrne and Callaghan, 2014) by providing critical levels of disorder which not only (potentially) break down but also allow for 12 spontaneous and novel forms of re-organization (Williams and Arrigo, 2002). In our argument and in terms of radical and transformative justice we can utilize Bergson’s (Bergson, 1988) development of Aristotle’s conception of potentiality (dunamis) and its relationship to actuality (energeia) which rather than being concerned with someone’s power to produce a change (e.g. to make good through voluntary contrition, or to impose punishment to coerce contrition) is their capacity to be in a different and more completed state (Cohen, 2016) and enabled to be so through the actions of both the victim and the community. Forgiveness Having established our approach we now look to developments in the study of the concept of forgiveness itself. A main focus of studies in forgiveness have been theological but perhaps due to a resurgence in interest in Aristotelian virtue ethics (e.g. Anscombe, 1958) had also seen increased philosophical interest in the late 20th Century9 (e.g. Kolnai, 1974, Downie, 1965). It was Griswold’s work (Griswold, 2007) that challenged the Judaeo-Christian hegemony in debates on forgiveness by re-examining Greek and Roman sources. However a re-examination of these debates particularly with respect to the person and theology of St Paul10 demonstrates some interesting and challenging perspectives. The secular Jewish philosopher Hannah Arendt argued that Jesus of Nazareth discovered the role of forgiveness in human affairs (Arendt, 1958) however this is challenged by Griswold (Griswold, 2007) who argues that she overstates the case as he finds significant evidence for concepts of forgiveness already existing in pre-Christian Greco-Roman culture. The ancient 9 There has been significant interest in criminal justice e.g. in the development of Psychological Jurisprudence (see Arrigo and Williams, 2014)) and also the Good Lives Model (Ward and Maruna, 2007) 10 The person and theology of St Paul has become a key area of scholarship in continental philosophy; see e.g. Badiou (2003); Breton (2011); Azzam (2015); Kearney (2016). 13 Greeks did not have a word for forgiveness; Aristotle used a range of words associated with the verb sungignosko relating to think with, agree with, recognize; all are linked with notions of relationship and empathy (see Griswold, 2007). However for Aristotle forgiveness is neither a virtue or religiously based but rather it is linked to civic politics (see Bash, 2014). The key is to be found in Aristotle’s concept of unbearable circumstance (Aristotle, 2004) which is linked to a perfectionist ethical stance linked to external forces. The virtuous, detached and rational man does not make mistakes and can be excused for events outside of his control, hence no forgiveness is required. But importantly any sense of empathy does not extend to un-virtuous persons and the irrationality of the “mob.” Bash (Bash, 2014) highlights that within the New Testament there are differences between the Gospels and the Pauline epistles concerning the nature of forgiveness. Both Jesus of Nazareth and Paul of Tarsus challenge the link between ritual conceptions of purity, sin and forgiveness and both argue that there is an injunction on Christians to forgive. However in the Synoptic Gospels there is an emphasis by Jesus on interpersonal forgiveness, whereby repentance is necessary to be forgiven by God, but likewise to be forgiven it is necessary to forgive others, as in the following (the Hebrew verb used is Aphiemi which has a legal connotation of acquitting, a sense of release, to excuse and cancel a debt): “Then Peter went up to him and said ‘Lord, how often must I forgive my brother if he wrongs me? As often as seven times?” Jesus answered, ‘Not seven I tell you, but seventy-seven times.” (Matthew 18 verses 21-22, New Jerusalem Bible: 1130): In contrast the point is made by Bash (Bash, 2015) that Paul of Tarsus whose epistles constitute a significant proportion of the New Testament is not a theologian of forgiveness (he rarely mentions the word) but one of justification and by justification he means a gift of 14 grace to undeserving people. This is interesting because despite Paul being a Hellenised Jew with the expectation that he would use sungignosko type concepts he actually uses the Hebrew charizmoi to express gifts of grace (Bash, 2014). In this sense rather than the requirements of the gospels to be forgiven through forgiving, it would seem that Paul in arguing that a justified people are a forgiven people and that even the desire to repent is as a consequence of a gift of grace, is arguing for the community to forgive as an act and expression of grace. The Pauline approach is in part a reflection of Paul’s own experience (see also Breton, 2011). He had been a persecutor of the early Jews who joined the emerging Christian church and he was complicit in the stoning to death of Stephen a Christian disciple and which seems to have led to Paul’s conversion to Christianity (Acts Chapters 7-9). In Acts the story goes on to show how afraid the people were of Paul after his sudden conversion, including the leaders of the church, but when another Apostle named Barnabas (and interestingly the name Bar-Nabas is translated as both Son of Encouragement and Son of Consolation) advocated for him, he was accepted (Acts 9 vv 26-30) hesitantly into the community of Christians but went on to become the key Apostle to the Gentiles, promulgating Christianity throughout the Middle and Near East. A reading of the Pauline story reveals especially the conversion “Event” (see Badiou, 1986) is instructive as at no point was he asked to repent, or humiliate himself before the community, neither was he required to make atonement so that the community were satisfied as to his intentions. But equally as importantly Paul did not try to hide or to justify his past and we can infer from the text that his past was a key component in the emergence of a new identity (Saul becomes Paul). In this experience (Acts 9 vv1-7) he is only asked one question by Jesus “Saul, Saul why do you persecute me?” to which the only response that Saul 15 has is to ask who is speaking to him, and to which Jesus responds with his name and to tell Saul to follow the directions given to him. His new identify is a gift rather than something earned. This idea of gift stands in stark contrast to contemporaneous practices of justice and the Authentic Apology Model (Allan, 2008) which enshrines a functionalist approach to the forgiveness of a perpetrator of a crime or a civic offence with the onus on the wrong doer to explain their wrongful behaviour and to accept liability; to experience an emotional response to the wrong and to action behaviour to right the wrongs done. Allan (Allan, 2008) in asserting this approach argues that criminal law and punishment is fundamental to social order and equilibrium and reinforces those processes through also deterrence and offering the possibility of rehabilitation. For Allan apology is central to the process of rehabilitation by allowing the wrongdoer to humiliate themselves and to show respect to victims and society and therefore demonstrate that they are not of bad character. Atonement and social order – a hermeneutic of suspicion Hermeneutics and the work of Ricoeur helps us to examine the relationships between ideology and religion and the ways in which an “Ideological recollection of sacred foundational acts has the purpose …of integrating and justifying a social order” (Kearney, 1986:112) and to address the question of how in societies whose cultural identity is rooted in the Judaeo-Christian tradition we have moved from these radical, creative and radically reinforcing stories of forgiveness and grace to those of a dominant, locked and dampening narrative of conditionality; and whereby the original meanings of these texts are obscured to the extent that for examples within debates on restorative justice forgiveness is controversial and perhaps lacks an articulation of meaning and philosophical resources (see Armour and 16 Umbreit, 2005)? Ricoeur’s hermeneutic of suspicion seeks to recover repressed meanings. A key factor in the repression of original meanings was the historical convergence of Christian theological notions of forgiveness becoming inextricably linked with theories of atonement. Prior to Anselm of Canterbury (1033-1109) a Christus Victor theology saw mankind as being in bondage and held hostage to the evil powers of Sin, Death and the Devil. This is not dissimilar to Aristotle’s idea of unbearable circumstances however under this human focussed theology (see Eddy and Beilby, 2006) Christ frees mankind from those circumstances irrespective of their purity or rationality (Aulen, 2010). Aulen (2010) argues that this theology was rich in imagery and metaphor but was displaced by a more ‘rational’, approach based on satisfaction theory. Satisfaction theory is Godward looking (Eddy and Beilby, 2006) and argues that the justification for punishment and retribution is that God Himself is punitive and demands satisfaction through sacrifice and punishment for every sin so as to make atonement. These fundamental changes (bifurcation) in theological thinking coincide with the rediscovery of Greek philosophy by Islamic and Christian Scholastics; hence the Aristotelian influence of purity and elitism becomes apparent. This idea had also been reinforced by Augustine’s earlier Platonic ideas in the City of God (Augustine, 1958) that the State is a bulwark against sin. In this historical development and in seeking to understand why liberal democracies that have had a Christian identity are so punitive in their approaches to criminal justice, contra biblical accounts of forgiveness Gorringe (Gorringe, 1996) argues that religion and law are related at the deepest level and that, “Christian theology constituted the most potent form of ideology in western society for at least a thousand years up to the 18th/19th centuries and its ideological importance is by no means dead. It was both influenced by, and influenced, penal thinking. It represented a 17 construal of the crucifixion of Christ, by no means inevitable, which reinforced retributive thinking, according to which sin or crimes have to be punished and cannot be dealt with in any other way.” Gorringe argues that satisfaction theory emerged in the 11th century at the same time as criminal law took shape, and reacted on each other with theology drawing on legal notions and law looking for metaphysical justification. The contrast between the two approaches is significant as in Satisfaction Theory Christ is the only acceptable sacrifice to an angry God who demands retribution, whereas Christus Victor is a freely given act of love from God, in the face of unbearable circumstances for mankind e.g. “the gift of grace expressed in the Pauline letters, and the cross of Christ is not a justification of punishment but a heralding of its end” (Gorringe, 1996: 269). The rediscovery of Greek philosophy by the medieval Scholastics may have provided a framework for establishing a purely rational theology but in so doing discarded the dramatic symbolism of classical atonement. Thus, perhaps unwittingly a theology of difference and individualisation that reinstated a Greek view of unbearable circumstances and purity alongside Christian notions of sin, penance and satisfaction was introduced that negated the Biblical view of the powerlessness of Everyman and the need for outside and freely given help (grace). This philosophically informed approach to theology has been essential to the creation of a hegemonic and state sponsored Christian religion, fundamental to social order, and therefore complicit in cruelty , punishment and the exercise of power. It is argued by Martin (Martin, 2014:42) that: “It is not in the least surprising that Christianity devised strategies of negotiation, compromise and assimilation as it spread in societies characterised by discourses of power and codes of 18 honour. On the contrary, the history of Christianity…follows precisely the course you would expect…the presentation of Christianity was often loaded towards the Old Testament, so that rulers fashioned their self-understanding in the image of Solomon, David, Hezekiah or Josiah. Appropriations of the figure of Christ crucified by monarchs and ecclesiastics were much less popular because less plausible and persuasive, except when deployed at tangents that ignored the stripping away of the human dignity of Christ by the legally constituted authorities in ‘Church’ and state. The Godly Prince of the Renaissance ruling jure divino found scant gratification in the role of a convicted felon.” Girard (Girard, 1978) along with Nietzsche (Nietzsche, 2003, 2008) and Foucault (Foucault, 1975) is concerned with the ways in which cruelty is linked to the exercise of power and ideology. It is clear that violent interpretation (or rather subversion) of scriptural texts are used to justify violence and punishment. So whereas Foucault focuses on disciplinary technologies and normative social science that expel the old rituals of violent expiation, Nietzsche and Girard find evidence of those continued mechanisms which are revealed through myths and literature, ancient and modern. The meeting of the thought of Nietzsche and Girard are we argue the key fault lines in understanding the relationship between collective violence, social order and religion. For Girard the Judeo-Christian tradition and gospels reveal a genuine epistemology of love, forgiveness and non-violence, whereas for Nietzsche at best they reinforce the links between religion and justified violence. Girard argues (Girard, 1978, 2008) that scapegoat rituals are the process by which violence is contained and resolved in societies and is linked with religious rituals. Girard identifies the scapegoat mechanism as being behind every ritual including those of justice, punishment and denunciation (Girard 1978). Likewise Dupuy (Dupuy, 2013) observes that with the decline of 19 the twin pillars of religion and monarchy justice is the only publicly ubiquitous ritual that advanced industrial countries have left. What is significant and controversial about Girard’s theory and what differs from traditional anthropological accounts of scapegoating (e.g. Frazier, 1922) is his psycho-analytically informed argument that scapegoating should not be seen as a conscious activity based on a conscious choice. The process is effective precisely because there is an element of delusion to which we are all susceptible, so all of us can condemn examples of scapegoating yet none of us can identify our own involvement in it. Girard (Girard, 2008) argues that the scapegoat is a coherent enough interpretation of all rituals that resemble the Leviticus ritual. In the Mosaic ritual of the Day of Atonement (Leviticus 16) the scapegoat is that one of the two goats chosen by lot to be sent alive into the wilderness, the sins of the people having been symbolically laid upon it, while the other was appointed to be sacrificed. Whether physical or psychological the violence directed at the victim appears to be justified because the scapegoated person has brought about some evil that must be avenged, resisted and oppressed. History and contemporaneous societies are replete with examples and in addressing mimetic violence and social disorder the scapegoat restores order through becoming the focus for retribution and denunciation. A social dimension is always present, with persecutors a majority and their victims a minority and implies a process of displacement or transference and reveals the unconscious dimensions of social order. This is clearly expressed by Jesus who during his crucifixion stated “Father forgive them, they do not know what they are doing.” (Luke 23 v 34); likewise as he is being stoned to death Stephen “…knelt down and said aloud, ‘Lord do not hold this sin against them.” (Acts 7 v 60). Girard (Girard, 2014) argues that in scapegoating the victim is always innocent in the face of the violent collective, and that Christianity has taken the side of innocent victims (for example in the judicial execution of Jesus of Nazareth who was innocent but was the chosen 20 scapegoat to restore social order in a Jerusalem at threat of violent unrest) whereas as Nietzsche for example sees this as nothing more than revenge by the weak against the strong, a Christian slave mentality indicated by forgiveness which in itself was nothing more than a form of revenge (Nietzsche,2008). Girard then reveals much of what has become hidden or obscured in the historical development and practice of Christian narrative. In the words of Richard Kearney (Kearney, 1999:252): “Girard seeks accordingly to make the operations of our social imaginary – i.e. our ideological unconscious – answerable to ethics. He resolves to subject ideologies of scapegoating to a critical hermeneutics of suspicion, exposing concealed meanings behind apparent ones…sacrificial figures though invariably aliens and excoriated by their contemporaries become hallowed over the ages until they are eventually remembered as saviour gods who restored their community from chaos to order. They emerge out of the mists of time as miraculous ‘others’ who managed to transmute conflict into law. But this miraculous alteration of sacrificed ‘aliens’ into sacred ‘others’ is predicated upon a strategic forgetfulness of their original stigmatisation…” Forgiveness, accessing new dynamical states – a hermeneutic of affirmation A hermeneutic of suspicion allows us to revisit texts and messages which have become obscured, subverted and locked in through historical violence and which potentially offers an alternative to that violence. These sources demonstrate that we are all complicit in scapegoating and violence but also offer us the potential for new and creative spaces; a way out of our violence. So in contrast with the current conceptualisation implying that only 21 retribution acknowledges guilt and therefore personal responsibility (and the claim that we are justified and responsible in our retribution) Gorringe (Gorringe, 1996) argues that this is also implicit within any act of forgiveness. He states that this brings about a paradigm shift that has the potential to change the past and the future and therefore perceptions and roles and regulations too and we would add challenge the highly deterministic locking in of retribution to justice systems. This approach fits with De Valve’s argument that justice is what love gives us (De Valve, 2017b:384) that we need new approaches that “must be an individualization that facilitates a full actualization and celebration of the individual, but through the mutual action of the community.” Furthermore in exploring the dynamics of peaceful rebellion he argues (De Valve, 2017a: 98) that justice is a sacrament in the form of an outward and behavioural symbol which is “a boundary-spanning event.” This is St Paul’s conception of grace in action, a hermeneutic of affirmation (see Kearney, 1986) which can be conceptualised and realised in diverse ways: For Gorringe (Gorringe, 1996) forgiveness is a space of a hard fought praxis as demonstrated by the example of Terri Roberts (Roberts with Windle, 2015) and her recounting of her Son Charlie Roberts and his shooting of 10 Amish girls in a school house in Pennsylvania in 2006. Five girls were murdered the others seriously injured and then he killed himself. Immediately following the shooting the Amish Bishop extended forgiveness to the killer. What is remarkable about this account is the ways in which the Amish community including the parents of the killed and injured children reached out to Terri Roberts and her family despite the pain, anguish and grief that they were feeling. Over time it became possible to establish solid relationships both with parents, other members of the community and the surviving 22 children. There is one example from the book that both practically and symbolically represents the movement of the injured individuals and the community towards the perpetrator and his family: Charlie Roberts himself was to be buried with a quiet service in a cemetery away from the town in which he lived and the massacre occurred. The Roberts family were assured by the police of complete privacy and no press intrusion, but as they arrived at the cemetery the media were present in large numbers. However unbeknown to the family the Amish community were also there and they surrounded the family and the burial so that the view for the media was disrupted. Arendt (Arendt, 1961) in discussing the arrow of time argues that both the past and the future are forces which act on the present, and that the person is inserted not into this time but into a gap in time which is kept in existence by a constant fight against past and future. It is in this gap that we can insert new beginnings (natality) by differentiating between time and space; our freedom is dissociated from time and associated with space. Importantly we are not talking here of a timeless, idealised, Platonic space but one that has a spatial dimension (Arendt, 1961) as seen in the following example. Daniel Poskitt’s sister had been murdered by her boyfriend who was convicted and imprisoned. After 10 years they had the opportunity for a victim-offender conference: “We all had the opportunity to talk, to ask questions. “Why did you kill Karen? What were you thinking?” He had no answers for us; he said he didn’t know why he killed her and that he couldn’t remember the details of that day. For our family, this was unacceptable – we had come for answers. My father was angry and I felt angry too. Dad stood up and demanded that he tell us why. A ball of anger formed in the pit of my stomach and forced itself up and out of my mouth. I stood up and shouted: “You fucking coward.” It felt good, really good, to get that 23 anger out after 10 years. I didn’t even know I had it, but I knew after it came out. For me, it was a healing experience. It allowed me to let go of the anger and see the world differently. It didn’t bring back Karen but it did bring me back to a point where I can now forgive him. That may sound strange to some people, but I’ve learnt that forgiveness is not about the perpetrator, it about you. It’s about you letting go of the stuff that holds you back so you can live a happy and fulfilling life.” (http://www.theguardian.com/commentisfree/2015/nov/03/i-was-able-to-forgive-my- sisters-murderer-only-by-acknowledging-my-own-anger For Bergson (Bergson and Andison, 2010) intuition is a creative leap, and both opposed to platonic reconstitution after analysis, by moving forward rather than looking backwards, but also seeing the possibility of new beginnings (telos), now, rather than at some time in the future. This is demonstrated in the trial of Oscar Groning who was an SS Guard at Auschwitz and who kept records of the belongings that were confiscated from the prisoners when they were brought to the camp. Groning had never denied his guilt but was brought to trial due to a change in the law that allowed for his prosecution. During the trial Eva Kor who had been a prisoner in Auschwitz, and along with Miriam her twin sister had been experimented on by Josef Mengele publicly forgave Groning. After giving her testimony she walked across the court room, shook his hand and embraced him. Afterwards she said that this had not been planned and added: “I wanted to thank him for having some human decency in accepting responsibility for what he has done. I was always interested in meeting him face to face because I believe that there is a human interaction that I cannot predict and no one else can predict.” http://www.theguardian.com/commentisfree/2015/nov/03/i-was-able-to-forgive-my-sisters-murderer-only-by-acknowledging-my-own-anger http://www.theguardian.com/commentisfree/2015/nov/03/i-was-able-to-forgive-my-sisters-murderer-only-by-acknowledging-my-own-anger 24 (http://www.theguardian.com/world/2015/apr/27/auschwitz-survivor-angers-plaintiffs- trial-forgiveness) Eva Kor claimed that Groning was so overwhelmed by her unexpected gesture that he fainted. Later she called for prosecutions of SS officers to stop, to allow them to come forward and to explain themselves. In this case we might say that a leap of intuition moved Eva Kor beyond the retributive passions to allow for new and creative possibilities which she argued would encourage other Nazis to come forward and to explain themselves. These new beginnings, praxis and intuition have some self-sympathy for unbearable circumstances and an acknowledgment that crime is both a failing of the individual and the community, and therefore rehabilitation is the responsibility of both the individuals involved and the community. Bergson argues (Bergson, 1988) that normal feelings are caused by a representation of the other, whereas creative feelings create new representations: Our normal feelings for punishment and retribution are caused by the negative representation of the criminal whereas creative feelings grounded in forgiveness create the potential for hope and the projection of a positive image that might be actualized. Practically this means that forgiveness needs to be the starting point of rehabilitation rather than a mythical and elusive end point that in practice can rarely if ever materialize. For Bergson humans express new possibilities by enfolding new layers of habits which challenge and change the solidification and accretions that emerge from our connections with larger surrounding structures; there is a need for periods of in-determination when existing habits and practices are suspended and which allows for creative evolution (Bergson and Andison 2010); importantly we remember how that change has come about, what the change is relative to, however a new situation is actualized. http://www.theguardian.com/world/2015/apr/27/auschwitz-survivor-angers-plaintiffs-trial-forgiveness http://www.theguardian.com/world/2015/apr/27/auschwitz-survivor-angers-plaintiffs-trial-forgiveness 25 Forgiveness is the dynamic space in which this enabled to happen. This does not and cannot take the form of a static, binary, platonic and idealised category (the latter is Derrida’s conception of impossibility) but rather through praxis, natality or intuition it becomes an ethic of choice allowing possibility and potential to emerge from the practice of justice and which is explicitly committed to the past, present and future. Forgiveness is the space that emerges from the community as gift to both victims and perpetrators that: understands that a wrong has been committed and that there are victims and perpetrators; that victims’ experiences are real, potentially traumatic and life changing and who demand justice and the expression of retributive passions; who understand or are prepared to understand their own propensity to violence and complicity in violence; who are prepared to offer a future for both victims and perpetrators for the benefit of the whole community11. Conclusion We have shown how a study of forgiveness can allow for the creation of new beginnings and potentialities for both individuals and society. The barriers to achieving this potentiality are achieved not by limitation and exclusion but only through a real reconceptualization of the new imagination of what is possible; insights into forgiveness that contrast with retributive principles provide such possibilities. The process of new beginnings in part involves a re- reading of foundational texts and myths in the light of new scholarship and research, and that 11 Truth and Reconciliation events around the world have sought to do just that and often through being presided over by a cleric, to varying degrees of success. The most famous being Archbishop Desmond Tutu in South Africa; there was controversy over whether he should wear his episcopal garb and with participants claiming that because of his presence and the symbolism of Christianity that they felt under pressure to forgive (see Brewer, Mitchell and Leavey, 2016) and that there was then something false about the process. Likewise research has shown (Colvin, 2000) that perhaps unsurprisingly reconciliation means different things to different people but that there was a perception that perpetrators of crime were being rewarded by the system in the form of amnesties and continued pensions but that the victims were still suffering the effects of apartheid and its atrocities. To stress the point forgiveness cannot be required but given the right conditions can be allowed to emerge over time. 26 inform new methodologies and practices in doing justice. However in opening up new spaces for doing justice then we need to be cognizant of the historically determined factors that explain where we are now and a criminological hermeneutic that is informed by complexity theory and continental philosophy allows us to achieve this. Acknowledgements We would like to thank peer reviewers of earlier versions of this paper and also advice, comments and discussion from Prof Bruce Arrigo, Prof Anthony Bash and Father James Alison and Prof Andrew Millie. The paper was also the basis of presentations at the British Society of Criminology Annual Conference at Plymouth University and also the European Conference on Ethics, Religion and Philosophy (both in 2015) and we are indebted for the contributions from participants. Bibliography Allan, A. (2008) ‘Functional Apologies in Law’ in Psychiatry, Psychology and Law Vol.15(3): 369-381 Anscombe, E. (1958) ‘Modern Moral Philosophy’ in Philosophy Vol. 33(124): 1-19 Arendt, H. (1958) The Human Condition. Chicago. University of Chicago Press. Arendt, H. (1961) Between Past and Future: Eight Exercises in Political Thought. New York. Vikin381 Aristotle (2004). The Nichomachean Ethics. London. Penguin Books Armour, M. and Umbreit, M. (2005) ‘The paradox of forgiveness in restorative justice’ in E. Worthington The Handbook of Forgiveness. New York. Routledge: 491-504 Arrigo, B. and Barrett, L. (2008) ‘Philosophical Criminology and Complex Systems Science: Towards a Critical Theory of Justice’ in Critical Criminology 16: 165-184 Arrigo, B. and Williams, C. (2014) ‘Complexity, law and ethics: On drug addiction, natural recovery and the diagnostics of psychological jurisprudence’ in Pycroft, A and Bartollas, C 27 (eds) Applying Complexity Theory: Whole systems approaches to criminal justice and social work. Bristol. Policy Press: 247-268 Augustine, St. (1958) City of God. London. Penguin Books. Aulen, G. (2003) Christus Victor: An Historical Study of the Three Main Types of the Idea of Atonement. Wipf & Stock Publishers Azzam, A. (2015). Nietzsche versus Paul. New York. Columbia University Press Badiou, P. (2003). St Paul: The foundation of universalism. Stanford. Stanford University Press. Baker, J. and Booth, A., (2016) ‘Hell to pay: Religion and punitive ideology among the American public’ in Punishment and Society vol 18(2):151-176 Bartollas, C (2014) ‘Constituting the system: Radical developments in post-Newtonian society’ in Pycroft, A and Bartollas, C (eds) Applying Complexity Theory: Whole systems approaches to criminal justice and social work. Bristol. Policy Press: 269-286 Bash, A (2014) ‘Forgiveness, Reconciliation and Spirituality: a Theological Perspective’ in Journal for the Study of Spirituality 4(1): 58-72 Bash, A. (2015) Forgiveness: A Theology. Eugene, Oregon. Cascade Books Bergson, H. (1971) Time and Free Will. London. George Allen and Unwin Bergson, H. (1988) Matter and Memory. New York. Zone Books Bergson, H and Andison, M. (2010) The Creative Mind. Whitefish. Kessinger Publishing Breton, S. (2011). A Radical Philosophy of St Paul. New York. Columbia University Press Brewer, J., Mitchell, D. and Leavey, G. (2016) ‘ Northern Ireland: Religion and Transitional Justice’ Conflict Studies Quarterly 14: 74-91 Byrne, D. (1998) Complexity Theory and the Social Sciences: An Introduction. London. Routledge Byrne, D. and Callaghan, G. (2013). Complexity Theory and the Social Sciences: The state of the art. London. Routledge Cilliers, P. (1998) Complexity and Postmodernism: Understanding Complex Systems. London. Routledge Cilliers, P. (2005) ‘Complexity, Deconstruction and Relativism’ in Theory, Culture, Society Vol 22(5): 255-267 28 Cohen, S (2016) ‘Aristotle’s Metaphysics’ in Stanford Encyclopedia of Philosophy https://plato.stanford.edu/entries/aristotle-metaphysics accessed 30/6/17 Colvin, C. (2000). 'We Are Still Struggling': Storytelling, Reparations and Reconciliation after the TRC. Research report written for the Centre for the Study of Violence and Reconciliation in collaboration with Khulumani (Western Cape) Victims Support Group and the Cape Town Trauma Centre for Survivors of Violence and Torture, December. Critchley, S. (2008) ‘What is continental philosophy’ in International Journal of Philosophical Studies 5(3): 347-365 Derrida, J. (2002). On Cosmopolitanism and Forgiveness. London: Routledge De Valve, M. (2017a) ‘O for a Muse of Fire: Rebellion as Sacrament’ in Critical Criminology 25: 87-102 De Valve, M. (2017b) ‘Love/Power’ in Critical Criminology 25: 375-391 Downie, D.S. (1965) ‘Forgiveness’ in Philosophical Quarterly Vol.15(59): 128-134 Dupuy, J.P. (2013) The Mark of the Sacred. Stanford. Stanford University Press Eddy, J. and Beilby, P (2006) ‘The atonement: An introduction’ in P. Beilby and J. Eddy (eds) The Nature of Atonement: Four Views. Illinois. IVP Academic: 9-21 Foucault, M. (1975). Discipline and Punish: The Birth of the Prison. London. Virago Books Frazier, J. (1922) The Golden Bough: A Study in Magic and Religion. London. Macmillan and Co. Girard, R. (2007) Evolution and Conversion: Dialogues on the Origins of Culture. London. Continuum Books Girard, R. (2008) I See Satan Fall Like Lightening. Maryknoll. Orbis Books Girard, R. (1978) Things Hidden Since the Foundation of the World. London. Athlone Press Girard, R. (2014) The One by Whom Scandal Comes. East Lansing. Michigan University Press Gorringe, T. (1996) God’s Just Vengeance. Cambridge. Cambridge University Press Griswold, C (2007) Forgiveness: A Philosophical Exploration. Cambridge. Cambridge University Press Guastello, S. and Liebovitch, L. (2009)’Introduction to Nonlinear Dynamics and Complexity’ in S.Guastello.,M.Koopmans and D.Pincus (eds) Chaos and Complexity in Psychology: The Theory of Nonlinear Dynamical Systems. Cambridge. Cambridge University Press: 1-40 https://plato.stanford.edu/entries/aristotle-metaphysics%20accessed%2030/6/17 http://www.csvr.org.za/docs/trc/wearestillstruggling.pdf http://www.csvr.org.za/docs/trc/wearestillstruggling.pdf 29 Hathaway, O. (2003). ‘Path Dependence in the Law: the Course and Pattern of Legal Change in a Common Law System’ John M. Olin Centre for Studies in Law, Economics, and Public Policy Working Papers. Yale Law School Hawking, S. (1998). A Brief History of Time. Cambridge. Cambridge University Press Johnstone, G. and Van Ness,D.W (2007) ‘Roots of Restorative Justice’ in Johnstone, G. and Van Ness,D.W (eds) Handbook of Restorative Justice. Cullompton. Willan: 109-111 Kearney, R. and Rainwater, M. (1996). The Continental Philosophy Reader. London. Routledge Kearney, R. (1986) ‘Religion and Ideology: Paul Ricoeur’s Hermeneutic Conflict’ in The Irish Theological Quarterly 52: 109-126 Kearney, R. (1999). ‘Aliens and others: Between Girard and Derrida’ in Cultural Values Vol 3 (3): 251-262 Kearney, R. (2016) Re-imagining the Sacred. New York. Columbia University Press Kolnai, A. (1974) ‘Forgiveness’ in Proceedings of the Aristotelian Society, 1973-4: 91-106 Lacey, N. and Pickard, H. (2015) ‘To blame or to forgive?: reconciling punishment and forgiveness in criminal justice’ Oxford Journal of Legal Studies, online pp. 1-31 DOI: 10.1093/ojls/ggv012 Levinas, E. (1969). Totality and Infinity: An essay on exteriority. Pittsburgh. Dequesne University Press Martin, D. (2014) Religion and Power: No Logos without Mythos. Farnham. Ashgate Massumi, B. (1996) A user’s guide to capitalism and schizophrenia: Deviations for Deleuze and Guattari. Cambridge. MIT Press Melamed, Y. (2012) ‘“Omnis determinatio est negatio” – Determination, Negation and Self- negation in Spinoza, Kant and Hegel’ in Forster, E. and Melamed, Y. (eds) Spinoza and German Idealism. Cambridge. Cambridge University Press: 175-196 Menocal, M.R. (2002). The Ornament of the World: How Muslims, Jews and Christians Created a Culture of Tolerance in Medieval Spain. New York. Bay Back Books Miller, J. (1990) ‘Carnivals of atrocity’ in Political Theory 18 (3): 470-491 Milanovanovic, D. (2014) Quantum Holographic Criminology: Paradigm Shift in Criminology, Law and Transformative Justice. Carolina Academic Press Murphy, J. and Hampton, J. (1988) Forgiveness and Mercy. Cambridge. Cambridge University Press 30 Nelson, M (1991) ‘Utilitarian Eschatology’ in American Philosophical Quarterly Vol. 28 (4): 339- 347 Nietzsche, F. (2008) The Birth of Tragedy. Oxford. Oxford University Press Nietzsche, F. (2003) Thus Spoke Zarathustra. London. Penguin Books Pellauer, D. and Dauenhauer, B. (2016) ‘Paul Ricoeur’ https://plato.stanford.edu/entries/ricoeur/ accessed 8/12/17 Pepinksy, H. (2013) ‘Peacemaking Criminology’ in Critical Criminology 21:319-339 Pycroft, A. and Bartollas, C. (eds) (2014) Applying Complexity Theory: Whole systems approaches to criminal justice and social work. Bristol. Policy Press Pycroft, A (2014) ‘Complexity theory: an overview’ in Pycroft, A and Bartollas, C (eds) Applying Complexity Theory: Whole systems approaches to criminal justice and social work. Bristol. Policy Press: 15-38 Pycroft, A. (forthcoming) ‘Consciousness In Rather than Of: Advancing Modest Claims for the Development of Phenomenologically Informed Approaches to Complexity Theory in Criminology. Journal of Theoretical and Philosophical Criminology. Roberts, T. with Windle, J. (2015). Forgiven: The Amish School Shooting, a Mother's Love, and a Story of Remarkable Grace. Bloomington. Bethany House. Sieh, E. (1989) ‘Less Eligibility: The Upper Limits of Penal Policy’ in Criminal Justice Policy Review Vol.3: 159-183 Sydow, J., Schreyogg, G. and Koch, J. (2009). ‘Organizational Path Dependence: Opening the Black Box’ in Academy of Management Review Vol 34(4): 689-709 The Guardian http://www.theguardian.com/commentisfree/2015/nov/03/i-was-able-to- forgive-my-sisters-murderer-only-by-acknowledging-my-own-ange accessed 30/6/17 The Guardian http://www.theguardian.com/world/2015/apr/27/auschwitz-survivor-angers- plaintiffs-trial-forgiveness accessed 23/3/16 accessed 30/6/17 Verdeja, E. (2004) ‘Derrida and the Impossibility of Forgiveness’ in Contemporary Political Theory. Vol 3(1): 23-47 Žižek, S. (2011) Living in the End Times. London. Verso https://plato.stanford.edu/entries/ricoeur/ http://www.theguardian.com/commentisfree/2015/nov/03/i-was-able-to-forgive-my-sisters-murderer-only-by-acknowledging-my-own-ange http://www.theguardian.com/commentisfree/2015/nov/03/i-was-able-to-forgive-my-sisters-murderer-only-by-acknowledging-my-own-ange http://www.theguardian.com/world/2015/apr/27/auschwitz-survivor-angers-plaintiffs-trial-forgiveness%20accessed%2023/3/16%20accessed%2030/6/17 http://www.theguardian.com/world/2015/apr/27/auschwitz-survivor-angers-plaintiffs-trial-forgiveness%20accessed%2023/3/16%20accessed%2030/6/17 
work_lvombka7wvbcxenkntcwtfxevi	----	0033.tif A Social Justice Agenda Vickie M. Mays University of California, Los Angeles T he m o r a l i m p e r a t i v e o f f e r e d to p s y c h o l o g y b y b o t h J a c k s o n (2000, this issue) and Strickland (2000, this i s s u e ) is to m o v e into this n e w c e n t u - r y l e a v i n g not one s i n g l e p e r s o n b e h i n d . N o one s h o u l d h a v e t h e i r future, t h e i r h e a l t h , or t h e i r w e l l - b e i n g c o m - p r o m i s e d f o r r e a s o n s o f c l a s s , g e n d e r , n a t i o n a l o r i g i n , p h y s i c a l a n d p s y c h o l o g i c a l a b i l i t i e s , r e l i g i o n , or s e x u - al o r i e n t a t i o n , or as a r e s u l t o f u n f a i r d i s t r i b u t i o n o f r e s o u r c e s . B o t h a u t h o r s e x h o r t p s y c h o l o g i s t s to w o r k d i l i g e n t l y to e n s u r e the b r i g h t e s t f u t u r e for all. In 1999, the A m e r i c a n Psychological Association (APA) embraced issues o f race, ethnicity, culture, and mul- ticulturalism. This focus was historic in its scope and re- sulted in rich contributions to the field. The presidency o f Richard Suinn, the first Asian American president o f APA, which coincided with the terms o f five division presidents drawn from persons o f color (D. W. Sue, Bingham, Porchr- Burke, & Vasquez, 1999), became an organizing force that concentrated the association's ability to address questions o f diversity, difference, and inequality (D. W. Sue et al., 1999). This was most evident at two meetings: the January 1999 National Multicultural Conference and Summit (NMCS) and A P A ' s 107th annual convention in August 1999. At the APA convention, m a n y psychologists participated in an opening ceremony o f cultural sharing, highlighted b y the interconnectedness o f the participants despite their m a n y differences. The Reverend Jesse Jackson spoke eloquently at the ceremony about the inequalities in U.S. society and the social problems they generate: increased violence, a sense o f hopelessness, deteriorating physical and mental health, and reductions in health care, social services, and the quality and amount o f educational resources. The tools o f psychology in the next century ought to address Strickland's and Jackson's concerns about those who are different. The tools should possess not only internal validity but extemal validity (S. Sue, 1999), or they will fail to address the inclusive social justice agenda that Jackson (2000), Strickland (2000), and the participants in the NMCS (D. W. Sue et al., 1999) see as A P A ' s moral imperative in t h i s next century. Psychology, as a discipline, needs also to ensure that its approaches to promoting psychological well- being and preventing mental disorders are culturally valid and available, delivered competently, and affordable to all who need them (Ziglio, Levin, & Bertinato, 1999). We can learn from the field o f public health, which advocates pre- vention at a community or population level to eliminate or significantly reduce morbidity (Albee, 1998a, 1998b). Ef- fective prevention will help individuals find ways o f build- ing their individual capacity, but achieving good mental health at an individual level is often beyond the control o f individuals. We enter the new millennium with the United States enjoying a sustained period o f extraordinary wealth. This wealth offers both unthought-of possibilities and dangers. On the one hand, we now possess the resources to address difficulties that can only be solved b y investment in our c o m m o n social future. On the other hand, g r o w i n g eco- n o m i c inequalities threaten our v e r y social c o h e s i o n (Ka- plan, 1996; Kaplan, P a m u k , L y n c h , Cohen, & Balfour, 1996; Wallace, 1996; Wilkinson, 1996; Wolff, 1995) and have presented the public with apparently senseless crimes where children kill children, where police kill the mentally ill, and where m a n y die from preventable illness because they were the last to get health care. At the same meeting where the Reverend Jackson spoke, Strickland (2000), in her Distinguished Contributions to Psychology in the Pub- lic Interest Award address, issued a summons for psycholo- gists to rise to the challenge issued at an APA meeting over 30 years ago by Dr. Martin Luther King, Jr., (1968) and renewed by Jackson (2000). I f p s y c h o l o g y is to show society the path to greater equality a m o n g its m e m b e r s , p s y c h o l o g i s t s m u s t d e m o n s t r a t e that p s y c h o l o g y ' s m e t h - ods and p r o c e d u r e s can e m b r a c e diversity. Whereas King worried primarily about gaps in equality between races, Jackson (2000) and Strickland (2000) p r e s e n t e d a b r o a d e r agenda in which they i m p l o r e d social scientists to under- stand that the behaviors they seek to study, modify, and eliminate are related to gaps resulting from poverty, inequal- ity, and inequity (Kawachi, Wilkinson, & Kennedy, 1999; Mays & Cochran, 1994, 1998; Mays, Coleman, & Jackson, 1996; Sampson, Raudenbush, & Earls, 1997). These behaviors are inextricably linked to wealth, economics, education, gov- ernmental policies, and even the professional policies of psychology. P s y c h o l o g y m u s t not focus i t s e l f solely on the m e n - tal health o f individuals w h e n the nation is trying to understand the senseless torture and death o f p e o p l e hated because o f their gender, race, religious beliefs, or sexual orientation. P s y c h o l o g i s t s must not l o o k m e r e l y to individual b e h a v i o r to grasp w h y a 12-year-old girl b e c o m e s pregnant intentionally, an l l - y e a r - o l d shoots another child, or police sodomize a man in custody, or to understand ethnic cleansings. Strickland (2000) observed that the future o f psychology requires psychologists to be willing to articulate, teach, and develop a body o f science informed b y social justice. Psychologists must not be afraid to teach, engage in clinical practice, and develop public policy Correspondence concerning this article should be addressed to Vickie M. Mays, University of California, 1283 Franz Hall, 405 Hilgard Avenue, Box 951563, Los Angeles, CA 90095-1563. Electronic mail may be sent to mays@ucla.edu. 326 March 2000 • American Psychologist Copyright 2000 by the American Psychological Association, Inc. 0003-066X/00/$5.00 Vol. 55, No. 3.32(~327 DOI: 10 1037//0003-066X.55.3.326 Vickie M. Mays a n d r e s e a r c h a b o u t r a c i s m , s e x i s m , c l a s s i s m , h o m o p h o b i a , a n d o t h e r d i v i s i v e p e r s p e c t i v e s t h a t e n a b l e p e o p l e t o t r e a t t h o s e w h o a r e d i f f e r e n t f r o m t h e m s e l v e s f a i r l y a n d c o m p e - t e n t l y . O u r p r o g r e s s as a d i s c i p l i n e , as a n a t i o n , a n d a s g l o b a l c i t i z e n s d e p e n d s o n o u r a b i l i t y t o i n c l u d e e v e r y o n e i n t h e f u t u r e - - t o b e f a i r t o all, n o t j u s t t o s o m e . REFERENCES Albee, G. W. (1998a). Fifty years of clinical psychology: Selling our soul to the devil. Applied and Preventive Psychology, 7, 189 194. Albee, G. W. (1998b). The politics of primary prevention. Journal o f Primary Prevention, 19, 117 127. Jackson, J. (2000). What ought psychology to do? American Psycholo- gist, 55, 328-330. Kaplan, G. A. (1996). People and places: Contrasting perspectives on the association between social class and health. International Journal o f Health Services, 26, 507-519. Kaplan, G. A., Pamuk, E. R., Lynch, J. W., Cohen, R. D., & Balfour, J. L. (1996). Inequality in income and mortality in the United States: Analysis of mortality and potential pathways. British Medical Jour- nal 312, 999-1003. Kawachi, I., Wilkinson, R. G., & Kennedy, B. (1999). Introduction. In I. Kawachi, B. P. Kennedy, & R. G. Wilkinson (Eds.), The society and population health reader: Income inequali~ and health (pp. xi- xxxiv). New York: New Press. King, M. L., Jr. (1968). The role of the behavioral scientist in the Civil Rights movement. American Psychologist, 23, 180-186. Mays, V. M., & Cochran, S. D. (1994). Depressive distress among homo- sexually active African American men and women. American Jour- nal o f Psychiat~, 151,524-529. Mays, V. M., & Cochran, S. D. (1998). Racial discrimination and health outcomes in African Americans [CD-ROM]. Proceedings o f the 27th Public Health Conference on Records and Statistics and the Nation- al Committee on Vital and Health Statistics 47th Annual Symposium. Washington, DC: U.S. Department of Health and Human Services. Mays, V. M., Coleman, L. M., & Jackson, J. S. (1996). Perceived race- based discrimination, employment status, and job stress in a national sample of Black women: Implications for health outcomes. Journal o f Occupational Health Psychology, 1, 319-329. Sampson, R. J., Raudenbush, S. W., & Earls, F. (1997, August 15). Neighborhoods and violent crime: A multilevel study of collective efficacy. Science, 277, 918-924. Strickland, B. R. (2000). Misassumptions, misadventures, and the mis- use of psychology. American Psychologist, 55, 331-338. Sue, D. W., Bingham, R. P., Porehr-Burke, L., & Vasquez, M. (1999). The diversification of psychology: A multieultural revolution. American Psychologist. 54, 1061-1069. Sue, S. (1999). Science, ethnicity, and bias: Where have we gone wrong? American Psychologist, 54, 1070-1077. Wallace, R. (1996). Inner-city decay and the health of the nation. Current Issues in Public Health, 2, 26-28. Wilkinson, R. G. (1996). Unhealthy societies: The afflictions o f ine- qualio'. London: Routledge. Wolff, E. N. (1995). Top hea~': A study' o f the increasing inequality o f wealth in America. New York: Twentieth Century Fund. Ziglio, 15., Levin, L. S., & Bertinato, L. (1999). Social and economic detemainants of health: Implications for promoting the health of the public. In D. Harrison & E. Ziglio (Eds.), Social determinants o f health: Implications .for the health professions (Forums in Experi- mental and Clinical Medicine, Suppl. 4). Retrieved February 17, 2000, from the World Wide Web: http://www.accmed.net/hpi/ documenti/index.htm M a r c h 2 0 0 0 • A m e r i c a n P s y c h o l o g i s t 3 2 7 
work_lwcrlxtvnfhsfbtunnvwayamy4	----	Blockchain technology – the ultimate solution for utmost cybersecurity LOGIN YourStory YourStory Club YourStoryTV HerStory SocialStory SMBStory More Companies Advertise With Us Makers-India AutoStory MyStory Weekender Journal YS Korea Deutschland Germany Events Visual English Kannada Hindi Tamil Asamiya Bangla Gujarati Malayalam Marathi Odia Punjabi Telugu Urdu அ अ ಅ Login English Kannada Hindi Tamil Asamiya Bangla Gujarati Malayalam Marathi Odia Punjabi Telugu Urdu அ अ ಅ Login Disclaimer: This is a user generated content for MyStory, a YourStory initiative to enable its community to contribute and have their voices heard. The views and writings here reflect that of the author and not of YourStory. Blockchain technology – the ultimate solution for utmost cybersecurity By Arpita Arya|2nd Feb 2018 Blockchain technology has created a sensation in the internet space. Let's get to learn more about the concept and terminologies.  0 claps +0 Share on 0 claps +0 Share on Share on What Is Blockchain Technology? Blockchain technology came into existence in 2008 and with the introduction of bitcoins, it became popular worldwide. According to Wikipedia, “blockchain is a continuously growing list of records, called blocks, which are linked and secured using cryptography”. This technology has created a sensation in the internet space which was originally invented by Satoshi Nakamoto.  Trading in cryptocurrencies does involve the high degree of risk. To solve these major concerns many tech communities like Blockchain-hero.com is spending sleepless nights to find other potential uses and solutions for the blockchain technology. The best part of this technology is that it eliminates the need for a third party to control the database which is shared among all the users. This distributed yet secured system initiated a new trend among the internet with lots of future scopes. Evolution Of Transaction Data Storage Data storage changed drastically after the invention of digital currencies also known as a cryptocurrency. In today’s date, there are more than 700 Bitcoin-like cryptocurrencies available in the market. They have finally set up the motion to be the principal form of transaction. This is mainly due to the growing online market in the current society. People shop online and carry out numerous operations on a daily basis. The emergence of cryptocurrency aimed at minimizing the exploitation of online customers from being overcharged by the middlemen.  The system, however, requires a series of record management technique that is decentralized. These are digital ledgers that are protected with cryptology encryption. The chain contains a series of blocks that secures and stores data relating to the transaction of each. The information is then stored permanently after being recorded and for later use and cannot be altered by a third party. The system is robust, transparent and incorruptible. Hence, the technology behind this system has gained so much attention worldwide. Why Implement Restricted Measures In Transactional Data Storage No person should be trusted with another person’s transactional data. Human beings will always act in self-interest. This has become the main motivating factor for blockchain sites advocating for implementation of blockchain system. The private key cryptography is the reason why bitcoin and cryptocurrencies were successful. Each user of the blockchain system has a secure transactional key that allows them to access their transactional data. Any other person can not manipulate the key. The key is also assigned to the user with a personal login signature. The signature is approved by all peers in the network for a transaction to take place. This system of encryption ensures data does not fall into fraudulent hands providing ultimate security. Trends In Blockchain technology Banks and Financial Institutions are trying to implement blockchain data storage technology into their systems to secure transactional data and track their financial activities at an optimum level. Financial institutions are already applying the system boost of unhackable systems. Various industries are also trying to create a reliable environment for their operations through creating unaltered systems that cannot be hacked or manipulated. Thus creating a perfect environment for forecasting and planning of their activities in the most secure manner. Get Inspired Innovation Business 0 Shares +0 Share on 0 Shares +0 Share on Share on Trending Now Trending Stories Google Doodle today celebrates the start of spring How Managed IT Services Benefit the Manufacturing Industry Arts and Social perception Ecommerce Mistakes That Make Your Users Abandon Your Website Daily Capsule Meesho turns unicorn, Swiggy raises mega round Read the full story Latest Updates from around the world Arts and Social perception How To Monitor Employees' Productivity? Art and environment Google Doodle today celebrates the start of spring A New CMO Role: Leveraging an Organization’s Purpose for Strategic Advantage How to accelerate Digital Business in 2021 Didn't find what you were looking for? Search for what you want, categories, tags, keywords, authors, events, anything under YourStory SEARCH Topics Tech Reviews Growth Hacks Government And Legal About Advertise with us About Meet the team Report an issue Contact Us Work with us Events © 2021 YourStory Media Pvt. Ltd. Privacy Policy v2.3.036 Built with ♥ in India 
work_m22wclsusbf53gzasoiegp44za	----	Experiences of youth justice: Youth justice discourses and their multiple effects McAlister, S., & Carr, N. (2014). Experiences of youth justice: Youth justice discourses and their multiple effects. Youth Justice: An International Journal, 14(3), 241-254. https://doi.org/10.1177/1473225414549694 Published in: Youth Justice: An International Journal Document Version: Peer reviewed version Queen's University Belfast - Research Portal: Link to publication record in Queen's University Belfast Research Portal Publisher rights © 2014 The Author General rights Copyright for the publications made accessible via the Queen's University Belfast Research Portal is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The Research Portal is Queen's institutional repository that provides access to Queen's research output. Every effort has been made to ensure that content in the Research Portal does not infringe any person's rights, or applicable UK laws. If you discover content in the Research Portal that you believe breaches copyright or violates any law, please contact openaccess@qub.ac.uk. Download date:06. Apr. 2021 https://doi.org/10.1177/1473225414549694 https://pure.qub.ac.uk/en/publications/experiences-of-youth-justice-youth-justice-discourses-and-their-multiple-effects(381addd8-1254-4d24-a43a-86ce276527ea).html 1 Experiences of youth justice: Youth justice discourses and their multiple effects Siobhán McAlister (School of Sociology, Social Policy and Social Work), Queen’s University Belfast, UK Nicola Carr (School of Sociology, Social Policy and Social Work), Queen’s University Belfast, UK Corresponding author: Siobhán McAlister, School of Sociology, Social Policy and Social Work, Queen’s University Belfast, Belfast, UK, BT71LP Email: s.mcalister@qub.ac.uk Abstract Interventions within youth justice systems draw on a range of rationales and philosophies. Traditionally demarcated by a welfare/justice binary, the complex array of contemporary rationales meld different philosophies and practices, suggesting a mutability that gives this sphere a continued (re)productive and felt effect. While it may be increasingly difficult to ascertain which of these discourses is dominant in different jurisdictions in the UK, particular models of justice are perceived to be more prominent (Muncie, 2006). Traditionally it is assumed that Northern Ireland prioritises restoration, Wales prioritises rights, England priorities risk and Scotland welfare (McVie, 2011; Muncie, 2008, 2011). However, how these discourses are enacted in practice, how multiple and competing rationales circulate within them and most fundamentally how they are experienced by young people is less clear. This paper, based on research with young people who have experienced the full range of interventions in the youth justice system in Northern Ireland examines their narratives of ‘justice’. It considers how different discourses might influence the same intervention and how the deployment of multiple rationalities gives the experience of ‘justice’ its effect. Key words Restorative justice, custody, youth justice discourse, experiencing justice 2 Introduction Across the UK the expansion of criminal and quasi-criminal interventions and modes of governance, alongside varied disposals and sanctions, has resulted in youth justice systems that enact multiple, contradictory and competing discourses (Fergusson, 2007; Muncie, 2004, 2006; Muncie and Goldson, 2006). While these are differentiated across time and place, the youth justice systems in separate jurisdictions within the UK tend to be associated with particular models of justice (e.g. welfare, rights, risk, restoration), and aspects of multiple discourses are evident in all. Research also demonstrates disjuncture between discourse, practice and experience whereby welfare-based models can be experienced coercively and punitively (McAra, 2006; Piacentini and Walters, 2006), and children’s rights can be used to justify intrusive interventions (Muncie, 2006). Further, the very nature of the discourses of welfare, rights, risk, responsibilisation, contain inherent tensions - care and control, child protection and public protection, child rights and victim rights. Thus, even where a particular model of youth justice is prominent, the meaning and experience is dependent on how interventions are institutionalised and enacted. Responses may be at the same time diversionary yet highly restrictive, welfare orientated yet punitive, rights focused yet exclusionary. Based on the narratives of young people who have encountered numerous criminal justice interventions, and set within the context of the Northern Irish system which prioritises restorative practices and a human rights policy discourse, this paper examines how the competing ideologies and aims of the system are experienced. Taking the forms of ‘justice’ most often administered to young people in an ongoing study, we consider their experiences of youth conferencing and custody. Youth Conferencing, based on the principles of restorative justice, encapsulates some of the multiple and competing discourses of youth justice - responsibilisation, punishment, reintegration, risk, (victim’s) rights. Custody is most often associated with the philosophical principles of punishment and public protection through incapacitation. Yet safeguards exist to limit its use with children and to protect those subjected to it. How these multiple and at times competing philosophies play out in the experiences of such interventions is examined. 3 Youth justice discourses Responses to young people in conflict with the law have usually taken account of their differential status to adults. Traditional justifications for intervention – welfare and justice – although less explicit today, continue to influence policy (Fergusson, 2007). As such, tensions and contradictions between care and control, welfare and justice exist alongside other articulations - rights and responsibilisation, punitiveness and informalisation - and are reflected to varying degrees (and sometimes simultaneously), in UK youth justice systems. Welfare-orientated policies and practices are premised on the special status of children, particularly regarding ‘responsibility’. Involvement in crime is linked with ‘social problems’, symbolic of deeper social and psychological difficulties rather than free rational and informed choice (Muncie, 2004). Interventions, therefore, prioritise the welfare needs of individual children which are better responded to outside the criminal justice system. Key is the aim to be child-centred, needs-focused and diversionary/ non-criminalising. These features appear to have much in common with more recent rights-based discourses of youth justice. Elements of this welfare model are also evident in current policies around diversion, prevention/ early intervention and multi-agency responses. However, welfare-based initiatives can also serve disciplinary and regulatory functions, resulting in net-widening and disproportionate interventions (Brown, 2005; Cohen, 1985; Muncie, 2004). Demonstrating the disjuncture between justice as discourse and justice as practiced and experienced, the welfare-orientated model can involve high levels of coercion and punitiveness with legal rights eroded and children silenced (Muncie, 2004; Piacentini and Walters, 2006). Welfare can, therefore, be about control as much as care, it can be punitive as well as protective. Concerns regarding lack of due process, proportionality and implementation of the rule of law, saw justice-based approaches foregrounded in recent years. With proponents arguing that a renewed focus on the offence (‘deeds’), rather than the ‘offender’ (‘needs’) would result in more proportionate responses (Muncie, 2004). 4 Young people in conflict with the law, while recognised as different to adults, are still rational actors, and thus responsible for their actions. Such rationalities marked the beginnings of what has been termed a ‘punitive turn’ in youth justice (Muncie, 2008) evidenced by ‘a general diminution of welfare-based modes of governance in favour of various “justice” based responsibilisation and managerial strategies’ (Muncie, 2005: 38). Taking the changes of the past few decades together (e.g. adulteration, penal expansionism, risk factor prevention and responsibilisation), Muncie (2008) argues that modes of youth governance are more punitive, repressive and expansive today. They are focused on punishment and individual responsibility rather than welfare, child protection and support. While rates of custody have traditionally be taken as an indication of a punitive and authoritarian approach, Cohen’s (1985) seminal work on the ‘dispersal of discipline’ is a reminder that a decline in imprisonment is not equated with less punishment and control. Further, in considering the fall in rates of youth custody in England and Wales, Bateman (2012) argues with reference to recent policy discourse, that this alone may not signal a shift in punitiveness. Risk, responsibilisation and rights: Multiple and contradictory discourses Contemporary youth justice involves multiple modes and layers of governance (Muncie, 2006). Recent initiatives focused on the prevention of offending through risk management illustrate the multiple and contradictory rationales within youth justice policy. Risk identification and management are premised on the basis of managing risk through intervening early in the lives of those displaying risk factors (Case, 2006). While early intervention programmes are presented as a benefit to the child and society, their welfare and rights-based ethos has been questioned (see Haydon this issue). In line with neo-liberal governance and the risk management agenda, a key element of contemporary youth justice is responsibilisation (Phoenix and Kelly 2013). Here the young offender is considered a ‘rational, responsible decision maker …’ (Gray, 2005: 938). The philosophical principles of restorative justice have married well with the responsibilisation agenda (Gray, 2005), because restorative justice emphasises 5 an acknowledgement by the young person of the harm done. The focus on restoration and reintegration, however, also reflects the welfare discourse. Thus restorative justice can embody some of the tensions between welfare and justice - holding young people to account but with a view towards them reintegrating into law- abiding society. Research into young people’s experiences of restorative justice has highlighted some of these tensions (Crawford and Newburn, 2003; Newbury, 2008). The range of interventions that often constitute restorative practices are individually focused, concentrating on the attitudes and behaviours of young people rather than the structural conditions of their lives (Gray, 2005). Newbury’s (2008) analysis challenges the reintegrative functions of restorative justice, noting that behaviour is unlikely to change if young people feel they must accept responsibility despite mitigating factors and broader explanations. Further demonstrating the tension between welfare and justice, restorative justice is embedded in the language of inclusion, participation and rights. Particularly suited to young people due to its ‘informal’ and sometimes diversionary nature, it incorporates the rights and views of victims and young people (e.g. Articles 12 and 40 of the UNCRC). Yet restorative justice can be experienced as punitive, exclusionary and shaming (Daly, 2002; Eliaerts and Dumortier, 2002). Concerns have also been raised regarding procedural safeguards in a forum where legal representation is absent (Eliaerts and Dumortier, 2002). While some research demonstrates relatively high levels of ‘engagement’ and participation by young people (e.g. Crawford and Newburn, 2003), this engagement and the levels of understanding of some has been questioned (Newbury, 2008). Whether young people feel they have a choice but to engage in the process, to accept responsibility and the resulting outcome is also debated (Hudson, 2003; O’Mahony and Campbell, 2006). In sum multiple, competing and contradictory discourses are reflected to different degrees in youth justice systems and interventions. While this is acknowledged, how these discourses play out and more fundamentally how they are experienced by young people is less clear. This paper, based on research with young people who have encountered a broad range of youth justice interventions examines their 6 experiences of ‘justice’. Through their narratives we consider how different discourses might influence the same intervention and how the deployment of multiple rationalities gives the experiences of ‘justice’ its effect. Youth justice in Northern Ireland: Prioritising restoration Elements of broader trends in youth justice including an increased focus on risk and the centrality of the victim are evident in Northern Ireland’s youth justice system (see Muncie, 2008, 2011; Muncie and Goldson, 2006). However, political conflict and subsequent conflict transformation have shaped the contours and structures of youth justice practice. This is most evident in the emergence of restorative justice as the main disposal. A core component of the peace process (1998) was a commitment to review policing and criminal justice and to embed accountability, human rights and transparency into institutions and their practices. Following from the Criminal Justice Review (2000), the Justice (NI) Act (2002) established a central agency with responsibility for youth justice and set out the aims of the new youth justice system. Here the principle aim is the protection of the public through preventing offending by children. Emphasising the centrality of responsibilisation, young people are to be encouraged ‘to recognise the effects of crime and to take responsibility for their actions’. These aims are to be implemented with consideration for the welfare of the child. The ordering of these principles, in particular the relegation of welfare has been the subject of some critique (Youth Justice Review Team, 2011). Further, these aims demonstrate the multiple discourses underpinning the system. The discourses of risk, responsibilisation and public protection sit alongside those of welfare, rehabilitation and rights. The Justice (Northern Ireland) Act (2002) introduced new diversionary disposals, community and custodial orders and formalised restorative justice through the Youth Conference Service. Adapting methods of conflict resolution restorative justice is reflective of the wider aims of transitional justice intended to close the legitimacy gap in state administered criminal justice (Doak and O’Mahony, 2011). The legislation provides that where a young person admits guilt the Public Prosecution Service 7 (PPS) or the Court must direct that a Youth Justice Conference is held unless the offence falls under a small number of excluded serious offencesi. The output of the youth conference, the Conference Plan, is approved by either of the directing parties (PPS or Court). Conference Plans typically contain requirements for the young person to write a letter of apology to a victim, and to engage in forms of reparative work and other purposeful activities. Over time the numbers of youth conferences has risen markedly. A total of 1,556 referrals for a conference were made to the Youth Justice Agency in 2012-2013 compared to 172 referrals in 2005 (DeCodts and O’Neill, 2014). As youth conferencing has expanded and become the primary youth justice response, the numbers of young people in custody has declined. The transformation of Northern Ireland’s youth justice system and in particular the emphasis on restoration has been hailed internationally as a success story (Doak and O’Mahony, 2011; Jacobson and Gibbs, 2009). However, this transformation is not uncontested (Convery, 2013; Convery et al., 2008). In respect of restorative justice, the efficacy and proportionality of multiple conferencing has been questioned (CJINI, 2008; Youth Justice Review Team, 2011). Criticisms similar to those previously described have emerged in local research. Specifically: problems with the focus on individual responsibility; feelings of a lack of inclusion and ‘equal’ input from young people; oppressive and punitive proceedings and disproportionate outcomes (see Maruna et al., 2007; O’Mahony and Campbell, 2006). Overall, however, the experiential aspects of youth justice have been given less coverage in broader narratives about system transformation. A decline in the use of custody and the prominence of restoration do not necessarily account for how justice is perceived in practice – whether for example restoration is found to be responsibilising or reintegrative. Given the multiplicity of rationales and the range of young people to whom they are applied inevitably there will be differing accounts of these experiences. In the next section we explore how such rationales are played out for young people. Methodology and background to the study 8 The data presented in this article is based on interviews with young people who were remanded or serving a sentence in Woodlands Juvenile Justice Centre (JJC). Woodlands is a purpose-built facility managed and staffed by the Youth Justice Agency (YJA). The centre accommodates almost all young people under 18 detained within the criminal justice systemii. Young people can also be detained here under Police and Criminal Evidence (PACE) provisions, following arrest and charge and pending their court appearance. The ongoing study, funded by the YJA, focuses on the transitions of young people into and out of custody. Research participants were selected on a purposive basis taking account of the heterogeneity of the population including gender, routes of admission, offences and home areaiii. The sample includes 21 young people, two young women and 19 young men, aged between 15 and 17 at the time of the first interview. The first interview normally takes place in the JJC prior to the young person’s release. It comprises of a life-history interview (Atkinson, 1998; Coles and Knowles, 2001), where young people are invited to ‘tell the story of their life’ including the reasons why they are detained at this time. In addition to exploring the young person’s previous contacts with the criminal justice system, the interview explores their hopes and plans for the future, particularly the plans in place for their release from custody. Follow-up interviews take place following young people’s release from custody; here the focus is on their transition from custody, what has been happening in their lives and any challenges that have arisen. The data presented in this article focuses specifically on young people’s experiences of justice. Here we focus on two aspects of the youth justice system – restorative justice (youth conferencing) and custody. Young people’s experiences of justice Most of the young people had multiple interactions with the youth justice system over a sustained period of time. A number had contact with the criminal justice system prior to reaching the age of criminal responsibility (age 10) through family involvement and contacts with the police. Experiences with the police were often fraught. There were numerous accounts of feeling over-policed (particularly in discussing the policing of bail conditions), and expressions of discrimination and targeting. In addition to formal policing, around half of the sample (n=11) had also 9 experienced ‘policing’ by paramilitaries. This included intimidation, threats and warnings, physical beatings and exilings. This informal punishment, regulation and control when added to experiences with the formal criminal justice system, amounted to multiple forms of punishment. While for a small number of young people contact with the criminal justice system was minimal, more usual was a long history of involvement with young people having experienced a number of previous interventions, including remands into custody, extensive bail conditions, youth justice conferences and community-based sanctions. Under legislation there is no limit to the number of youth conferences that a young person can be made subject to and many of the young people that we interviewed had taken part in multiple conferences. Restorative justice Based on restorative justice principles, the purpose of the youth conference as outlined in guidance for young people is toiv: … give you a chance to tell the people at the meeting why you committed the offence. It gives the victim a chance to tell you how they have been affected by what you did to him or her. …The meeting will want you to: …. Agree an action plan to make up for what you have done and stop offending. Young people reported variable experiences of this process. For some, conferencing, or at least what they were required to do for their conference plan, provided some structure in their lives. Kyle, who was on remand for a serious violent offence and who had multiple previous offences, explained how the activities required under his conference plans provided him with something to fill his time: I: …did you ever find the conferences useful or helpful? R: No, it just got me off the streets really. So they gave me something stable so they did, ‘cos I was going in and out of there (YJA) 4 or 5 days a week like so I was. And if I hadn’t been doing it, I would have been just lying awake getting stoned like. Kyle (age 16) 10 It is noteworthy that it was not the content of the programmes that Kyle identified as useful, or the conference itself, rather that the Plan provided him with purposeful activity. At the time of his initial interview, Kevin was serving his first custodial sentence for involvement in riotous behaviour. He had previous convictions for similar offences and had been through the youth conference process. His account of some of the requirements of his conference plan provides an example of having to confront the impacts of his offending. On this occasion Kevin describes visiting a residence to hear about the impact of rioting on those living there: …because I was rioting outside an ‘aul (old) people’s home, I went up…and I writ them a letter saying I was sorry, and then I went up telling them I was all sorry. And then they took me on a wee tour around the place…I felt alright saying sorry, but I felt like an asshole for rioting outside their place, so I did...It made me feel a bit lousy on them and all because of how close it was…I went and met the manager, ‘cos they were saying – ‘how do you feel’?, and all And I said – ‘I feel like a …dickhead’ and all that there. And I went around and said sorry and I was shaking people’s hands saying I was sorry for rioting outside and I writ them a letter… This experience had a clear impact on Kevin. As he described it, meeting the residents of the home made him feel a sense of shame. The shaming element of restorative justice draws on the theory of ‘reintegrative shaming’ (Braithwaite, 1989), which contends that social disapproval impacts on how a person feels about their offence, ideally dissuading them from such behaviour in the future. A component of this approach, and an underlying premise of restorative justice, is that a reintegration or restoration takes place for the victim of the offence and for the offender (Harris, 2006). Thus, a distinction is drawn between reintegrative shaming – i.e. shaming that is respectful of the person, avoids labelling and ends with forgiveness – and stigmatizing shaming (Ahmed and Braithwaite, 2005). 11 While Kevin spoke about the salutary effect of this particular conference, he had subsequently been convicted of further rioting offences resulting in his current sentence. Sometimes explaining his behaviour in individual terns (defining himself as a ‘hood’v), Kevin also described his feelings of boredom, the lack of things to do in his community and by contrast the excitement of rioting: ‘you get like an adrenaline rush so you do…it’s good.’ Within the local context rioting has historically been a masculine form of cultural expression and resistance (Haydon et al, 2012). It can be seen, therefore, that despite restorative interventions the context and circumstances of Kevin’s life, continued to impact heavily on his offending behaviour. For some young people, their experiences of conferences were more stigmatizing than reintegrative. Aged 15, and serving a sentence for a violent offence Paul had experience of multiple conferences. He recounted his first conference where the victim was antagonistic towards him: I had to show remorse for what I’d done like…like for the different offences, like I was in a youth conference there ages ago for a burglary, it was one of my first offences, and I just got diverted to a youth conference because it wasn’t a serious burglary, you know. I had to sit in a room with the person from the shop and I had to sit there and just to listen to him and say sorry and all. He just sat there and gave me abuse basically, he was an English boy and he called me a ‘yob’ or something like that. I hadn’t a clue what that meant, I had to say – ‘what the fuck’s a yob like?’ And he says a ‘hood’ or something like that it is. And I said – ‘I’m no hood’. Over time and following participation in further conferences, Paul describes ‘wising up’ and learning what is expected of him: You know, that was me back in that time, and then going through youth justice and all, I started wising up a bit, started getting street smart you know instead of being stupid. Just all I had to do, all of the youth conferences, then after that I would have just sat there and said ‘sorry’. You know, just listening to them go on and on, (I) wouldn’t give a fuck. I would have sat there and said ‘sorry’ instead of arguing with them, you know what I mean? Paul (age 15) 12 Clearly Paul had learnt to adapt his initial strategy of resistance, challenging and talking back, to one where he says the ‘sorry’ that is required of him. The inclusive and participatory nature of conferences was greatly questionable in Paul’s experience. Garrett (age 17) described a similar feeling of saying what is required: …you just have to sit down, and basically pretend, or not pretend, say you’re sorry and look like you’re sorry and that’s it… Part of the difficulty here arises from the over-simplified binary categorisations of ‘victim’ and ‘offender’, and for some the sense of injustice this arouses. Taking the moment, the interaction of the offence as the instance in which the young person (the ‘offender’) is held to account, and in which s/he must demonstrate remorse and accountability before the legitimate ‘victim’, belies the realities of many of the young people’s lives beyond these moments. For, Hugh (age 16), his life had been characterised by multiple losses and he described intense feelings of despair. Youth conferences where he had to account for behaviour that he could not fully recall because of alcohol use were particularly difficult: …just like sitting there and listening, listening to like listening to everything that I did and ‘cos it was all alcohol and it was all I felt so shit about it like, so bad. And see like a few months down the line at that conference listening to it again like just… you know when the alcohol was on board I didn’t care and then a few months down the line I had the conference just hearing it all again it was just killer like. Strategies of responsibilisation ‘holding young people to account’ are evident from the official youth justice discourse and in young people’s own recounting of their experiences. Internalising the message of the need to take responsibility and self- manage Hugh feels the responsibility to change, particularly in light of a further admission to custody, as resting firmly on his shoulders. Despite recognising the harm done and feeling deep shame, Huge recognised this was not enough: 13 I’d say if you asked … the conference worker well I wouldn’t really say it hit home much with where I am sitting (in custody) at the moment. It’s up to me to change it like. While Morris (2002) cautions against a false binary between restorative and retributive justice or indeed pinning unrealistic expectations on restorative processes, here the challenges of restoration are apparent. While the focus of any conference is on the harm caused, the meaningfulness of restoration and reintegration particularly into families and communities from which young people feel alienated is raised in many of the young people’s accounts. Recognising the harms caused by offending was not something young people typically shied away from, however, they recounted the responsibility for restoration as resting primarily on them. The contents of Conference Plans, perhaps reflecting the offending history of some, were at times expansive and onerous. Some noted the ‘stress’ that managing multiple conditions could cause and a few noted not agreeing with the outcomes even though they had accepted them. While few discussed the programmes they had to undertake in any manner that would suggest a rehabilitative effect, their value for providing something to do in otherwise monotonous lives is noteworthy in its own right. It speaks to the lack of opportunities for young people living in communities often beleaguered by poverty, under-investment and the legacies of the Conflict. Experiences of custody Paradoxically, but perhaps unsurprisingly given their life experiences and ongoing issues within their communities, for many young people detention was described as a period of respite. Having their needs met and the relative ‘ease’ of the JJC in comparison to life outside was evident: Life is so easy in here. You have no worries about people looking for you, no worries about nothing. You have no worries about going hungry and getting food and things like that. Robbie (aged 16) Reference was made to the range of activities available in the Centre and the fact that there was a structure and routine to daily life: 14 It’s a gift. I don’t know, don’t worry about nothing like. Whatever you need is there…the food’s rotten though. There’s all sorts of activities you can do in it like. They show you options and everything you can do when you get out and all. Patrick (age 17) Anthony (aged 17) had been in and out of the JJC since the age of 11. He estimated that he had spent two years in detention between various remands and sentences. Using drugs for many years – ‘solvies and meth and coke, E’s everythin’ - for him the JJC offered an opportunity to detox: I like it in here, it’s good…Cos it’s kinda a detox centre, you just come in and get off all the drugs and all and get fit again. Anthony (age 17) Raising questions about the availability of appropriate services for young people in the community, like Anthony, Hugh had also experienced multiple admissions and the JJC was a place where he came off drugs. While ultimately he saw this as positive, this process was not without its pains: It makes me feel, it’s like I try, and this place is sort of like a place where people come off things. This is hard, you have to come off things in here … it is not like you can turn round and say ‘give me something, give me cannabis, give me a smoke’. You can’t, you have to do it you have to come off them. And it is hard like… I have got these shakes sometimes I feel real not meself and but that’s why I do alternatives like go to the gym, do weights just take me mind of things really. Better than sitting smoking me brains out you know. Hugh (age 16) The experience of many young people was that the JJC met their welfare needs, underlining the fact that these were not being met elsewhere. In a number of interviews young people also noted the materiality of their surroundings in detention. Some who had come here for the first time reported that it did not meet their expectations of what a prison or place of detention would be - they had their own rooms and access to resources that were not necessarily available to them on the 15 outside. This is not to suggest that young people did not want their freedom, and that there were not pains associated with confinement, but in many accounts the positive welfarist aspects of having their basic needs met, whilst at the same time desiring to be on the outside were noted. For some, like Hugh the desire to be free in the literal sense and also from drugs was double-edged, because he was not sure if he would have somewhere to go on release or if he could sustain abstinence on the outside. The anticipation of rejection by his family who did not want him to return home permeated his account and while he desired to be free, the thought of what would happen to him on release was a source of anxiety: I don’t have a problem with bein’ in here (custody) ‘cos, I don’t know, I guess you just get used to it after a few times. But then it’s just the fact that when you have bail you just have nowhere to live, it’s the worst thing that could possibly happen to ya. Hugh (age 16) Contact with families and friends on the outside was both a source of comfort and anxiety for many young people. Some young people worried about their families making the journey to visit them, they described looking forward to a visit but feeling down afterwards as this accentuated their experience of being confined and away from home. Because the JJC is the only place for detained young people in Northern Ireland many families have to make long journeys to get there. While the JJC has an accommodation unit where families and visitors can stay overnight, young people were often conscious about the burden that their detention placed on their families. For Stevie, the impact of his mother visiting was known as he witnessed it first hand when his older brother was in prison: … when (brother was in prison) me ma went up and down but she used to be stressed, she says ‘this is costing me a fortune’. Diesel and then needin’ fifty pound a time for buyin’ clothes and all that. I knew it was a nightmare like, that’s why I said ‘I’ll see you once I get out’, but she came up the last time and left me money and all… 16 For young people then, experiences of custody were both punitive in terms of the deprivation of liberty and all that entailed, but also welfarist in that they perceived their needs were being met where they were not elsewhere. Discussion and conclusion Young people’s accounts of their experiences of these two justice interventions - youth conferencing and custody - provide an illustration of the range of rationalities at play within the youth justice system. The mix of responsibilisation, restoration, welfarism and punitiveness is evident. The impulse towards responsibilisation of ‘holding young people to account’ for the harms they have caused is clear in some of the experiences of restorative justice, where young people are required to hear the views of the victims of their offences and to make amends. Depending on the particular circumstances and dynamics of the process, these encounters can be experienced as shameful or punitive. They can also become devoid of meaning, a performance of reform where young people understand the rules and what is required of them - they ‘wise up’ and they give the requisite apology. In other instances experiences of shaming are characterised more re-integratively. A clear pre-requisite here is that the young person feels that they are treated with respect and that they are not stigmatised within this process. The aim of restoration as young people experience it, largely places the burden of restoration and reform on their shoulders. The question of their wider experiences, including multiple traumatic life events, poverty, paramilitary punishments and other forms of exclusions are for many not addressed in a meaningful way. This is not to say that attempts are not made to do this, young people are provided with the opportunity to give their account, but for many this accounting in this setting is too difficult and to what effect? While the formulations of conference plans variously include letters of apology, engagement in voluntary work, attendance at anger management and drug and alcohol programmes and so forth, these too are largely premised on indivualised reform and responsibility. That incarnations of restorative justice do not achieve the desired effects for these and other young people is not a reason to rubbish its intentions (Morris, 2002). The 17 point is to illuminate the fact that discourses are given multiple effects in practice. Here restoration as perceived is about responsibiisation and for some it is punitive. Similarly the data on young people’s experiences of custody, an intervention most associated with punitiveness, points to contradictory strains and ‘oscillating rationales’ (Muncie, 2006: 771) in the youth justice sphere. The accounts of young people highlight that for some detention was the means to meet their welfare needs and this was preferable to them than circumstances where their freedom in the community was restrictively curtailed, for example through the imposition of multiple bail conditions. Thus, a contingent community existence was viewed more punitively than custody. The argument is not of course that custody should not espouse welfarist rationales, but rather that this was the place where welfare needs (substance misuse and mental health difficulties, homelessness, etc.) had to be met. This is the larger indictment. While the numbers of young people in custody over time has declined, the impulse for its use, grounded in such rationales – preventative, public protection and welfarist - remains. It is the multiplicity and adaptability of these various rationales that continue to give custody and other youth justice interventions their (re)productive and felt effect. References Ahmed E and Braithwaite J (2005) Forgiveness, shaming, shame and bullying. Australian and New Zealand Journal of Criminology 38(3): 298–323. Atkinson R (1998) The Life Story Interview. London: Sage. Bateman T (2012) Who pulled the plug? Towards an explanation for the fall in child imprisonment in England and Wales. Youth Justice 12(1): 36-52. Braithwaite J (1989) Crime, shame and reintegration. Cambridge, UK: Cambridge University Press. 18 Brown S (2005) Understanding Youth and Crime: Listening to Youth? Berkshire: Open University Press. Case S (2006) Young People “At Risk” of What? Challenging Risk-focused Early Intervention as Crime Prevention. Youth Justice 6(3): 171-179 Cohen S (1985) Visions of Social Control. Cambridge: Polity Press. Cole AL and Knowles GJ (2001) Lives in context: The Art of Life History Research. Lanham: AltaMira Press. Convery U, Haydon D, Moore L and Scraton P (2008) Children, Rights and Justice in Northern Ireland: Community and Custody. Youth Justice 8(3): 245-263. Convery U (2013) Locked in the past: An historical analysis of the legal framework of custody for children in Northern Ireland. European Journal of Criminology 11(2): 251- 269. Crawford A and Newburn T (2003) Recent Developments in Restorative Justice for Young People in England and Wales: Community Participation and Representation. British Journal of Criminology 42(3): 476-495. Daly K (2002) Restorative Justice the real story. Punishment and Society 4(1): 55- 79. DeCodts M and O’Neill N (2014) Youth Justice Agency Annual Workload Statistics 2012/13 Statistical Bulletin 1/2014. Belfast: DoJ (Department of Justice). Doak J and O’Mahony D (2012) In search of legitimacy: restorative youth conferencing in Northern Ireland. Legal Studies 31(2): 305-325. Eliaerts C and Dumortier E (2002) ‘Restorative justice for children: in need of procedural safeguards and standards.’ In: Weitekamp EGM and Kerner HJ (eds.) Restorative Justice Theoretical Foundations. Cullompton: Willan, pp. 204-223. 19 Fergusson R (2007) Making sense of the melting pot: Multiple discourses in Youth Justice Policy. Youth Justice 7(3): 179-194. Gray P (2005) The politics of risk and young offenders’ experiences of social exclusion and restorative justice. British Journal of Criminology 45(6): 938-957. Haydon, D., McAlister, S., Scraton, P. (2012) ‘Young People, Conflict and Regulation.’ Howard Journal of Criminal Justice, 51,5: 503-520 Harris N (2006) Reintegrative Shaming, Shame, and Criminal Justice. Journal of Social Issues 62(2): 327-346. Hudson B (2003) Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory. Buckingham: Open University Press. Jacobson J and Gibbs P (2009) Making Amends: Restorative Justice in Northern Ireland. London: Prison Reform Trust. McAra L (2006) Welfare in crisis? Key developments in Scottish Youth Justice. In: Muncie J and Goldson B (eds.) Comparative Youth Justice. London: Sage, pp. 127- 145. McVie S (2011) Alterative models of youth justice: lessons from Scotland and Northern Ireland. Journal of Children’s Services 6(2): 106-114. Maruna S, Wright S, Brown J, Van Marle F, Devlin R and Liddle M (2007) Youth Conferencing as Shame Management: Results of a Long-Term Follow-up Study. ARCS UK: Available at: http://youthjusticeagencyni.gov.uk/document_uploads/SHAD_MARUNA_STUDY.pdf Morris A (2002) Critiquing the critics: A brief response to critics of restorative justice. British Journal of Criminology 42(3): 596-615 20 Muncie J (2004) Youth and Crime, London: Sage. Muncie J (2005) The globalization of crime control – the case of youth and juvenile justice: Neo-liberalism, policy convergences and international conventions. Theoretical Criminology 9(1): 35-64. Muncie J (2006) Governing young people: Coherence and contradiction in contemporary youth justice. Critical Social Policy 26(4): 770–793. Muncie J (2008) The ‘punitive turn’ in juvenile justice: Cultures of control and rights compliance in Western Europe and the USA. Youth Justice 8(2): 107-121. Muncie J (2011) Illusions of difference: Comparative youth justice in the devolved United Kingdom. British Journal of Criminology 51(1): 40-27. Muncie J and Goldson B (2006) States of transition: Convergence and diversity in international youth justice. In: Muncie J and Goldson B (eds.) Comparative Youth Justice. London: Sage, pp. 196-218. Newbury A (2008) Youth crime: Whose responsibility? Journal of Law and Society 35(1): 131-149. O’Mahony D and Campbell C (2006) Mainstreaming Restorative Justice for Young Offenders through Youth Conferencing: The Experience of Northern Ireland. In: Junger-Tas J and Decker SH (eds.) International Handbook of Juvenile Justice, pp. 93-115. Phoenix J and Kelly L (2013) “You have to do it yourself”: Responsibilzation in youth justice and young people’s situated knowledge of youth justice practice. British Journal of Criminology 53(3): 419-437. Youth Justice Review Team (2011) A Review of the Youth Justice System in Northern Ireland. Belfast: DoJ 21 Author biographies: Siobhán McAlister and Nicola Carr are lecturers in Criminology in Queen’s University Belfast i The following offences are precluded from being dealt with by way of a youth justice conference under the Justice Act, 2002 [33A, 2](a) offences the sentence for which is, in the case of an adult, fixed by law as imprisonment for life; (b) offences which are, in the case of an adult, triable only on indictment; and(c) offences which are scheduled offences for the purposes of Part 7 of the Terrorism Act 2000 (c. 11). ii In line with recommendations for The Youth Justice Review (2011), in late 2012 the Department of Justice announced the end of detention of under 18’s within the prison system, except in specific cases (e.g. where there were serious security risks such as the involvement of a young person in dissident activity). iii Young people who are currently looked after are not included in the sample as this requires a separate research governance and ethical approval process. iv Youth Justice Agency leaflet for young people: Youth Conference: Your Decision. Available at: http://www.youthjusticeagencyni.gov.uk/document_uploads//Youth_conference_Your_Decision.pdf v ‘Hood’ is a localism for those who take part in criminal activities, particularly rioting with the police, for ‘fun’. http://www.youthjusticeagencyni.gov.uk/document_uploads/Youth_conference_Your_Decision.pdf 
work_m42vtsuxazdvhlqkynn7qbpbb4	----	164 Crime and Justice serious crimes such as serious assault, sexual assault, robbery or housebreaking. The Sexual Offences Act 2003 introduced in May 2004 altered the definition and coverage of sexual offences. In particular, it redefined indecent exposure as a sexual offence, which is likely to account for much of the increase in sexual offences. Further information is available from Crime in England and Wales 2007/2008 (Home Office, Sian Nicholas, Chris Kershaw and Alison Walker, editors). Court proceedings and police cautions (Tables 11.4 to 11.8, 11.13 to 11.17, 11.20 to 11.22) The statistical basis of the tables of court proceedings is broadly similar in England and Wales, Scotland and Northern Ireland; the tables show the number of persons found guilty, recording a person under the heading of the principal offence of which they were found guilty, excluding additional findings of guilt at the same proceedings. A person found guilty at a number of separate court proceedings is included more than once. The statistics on offenders cautioned in England and Wales cover only those who, on admission of guilt, were given a formal caution by, or on the instructions of, a senior police officer as an alternative to prosecution. Written warnings by the police for motor offences and persons paying fixed penalties for certain motoring offences are excluded. Formal cautions are not issued in Scotland. There are no statistics on cautioning available for Northern Ireland. The Crime and Disorder Act 1998 created provisions in relation to reprimands and final warnings, new offences and orders which have been implemented nationally since 1 June 2000. They replace the system of cautioning for offenders aged under 18. Reprimands can be given to first-time offenders for minor offences. Any further offending results in either a final warning or a charge. For persons proceeded against in Scotland, the statistics relate to the High Court of Justiciary, the sheriff courts and the district courts. The High Court deals with serious solemn (that is, Jury) cases and has unlimited sentencing power. Sheriff courts are limited to imprisonment of 3 years for solemn cases, or 3 months (6 months when specified in legislation for second or subsequent offences and 12 months for certain statutory offences) for summary (that is, non-Jury) cases. District courts deal only with summary cases and are limited to 60 days imprisonment and level 4 fines. Stipendiary magistrates sit in Glasgow District Court and have the summary sentencing powers of a sheriff. Crime and Justice There are differences in the legal and judicial systems of England and Wales, Scotland and Northern Ireland which make it impossible to provide tables covering the UK as a whole in this section. These differences concern the classification of offences, the meaning of certain terms used in the statistics, the effects of the several Criminal Justice Acts and recording practices. Recorded crime statistics (Table 11.3) Crimes recorded by the police provide a measure of the amount of crime committed. The statistics are based on counting rules, revised with effect from 1 April 1998, which are standard for all the police forces in England, Wales and Northern Ireland and now include all indictable and triable- either-way offences together with a few summary offences which are closely linked to these offences. The new rules have changed the emphasis of measurement more towards one crime per victim, and have also increased the coverage of offences. These changes have particularly impacted on the offence groups of violence against the person, fraud and forgery, drugs offences and other offences. For a variety of reasons many offences are either not reported to the police or not recorded by them. The changes in the number of offences recorded do not necessarily provide an accurate reflection of changes in the amount of crime committed. In order to further improve the consistency of recorded crime statistics and to take a more victim oriented approach to crime recording, the National Crime Recording Standard (NCRS) was introduced across all forces in England, Wales and Northern Ireland from 1 April 2002. Some police forces implemented the principles of NCRS in advance of its introduction across all forces. The NCRS had the effect of increasing the number of offences recorded by the police. Similarly, the Scottish Crime Recording Standard (SCRS) was introduced by the eight Scottish police forces with effect from 1 April 2004. This means that no corroborative evidence is required initially to record a crime-related incident as a crime if so perceived by the victim. Again, the introduction of this new recording standard was expected to increase the numbers of minor crimes recorded by the police, such as minor crimes of vandalism and minor thefts and offences of petty assault and breach of the peace. However, it was expected that the SCRS would not have much impact on the figures for the more 165 Crime and Justice In England and Wales, indictable offences are offences which are: • triable only on indictment. These offences are the most serious breaches of the criminal law and must be tried at the Crown Court. ‘Indictable-only’ offences include murder, manslaughter, rape and robbery • triable either way. These offences may be tried at the Crown Court or a magistrates’ court The Criminal Justice Act 1991 led to the following main changes in the sentences available to the courts in England and Wales: • introduction of combination orders • introduction of the ‘unit fine scheme’ at magistrates’ courts • abolishing the sentence of detention in a young offender institution for 14-year-old boys and changing the minimum and maximum sentence lengths for 15 to 17- year-olds to 10 and 12 months respectively, and • abolishing partly suspended sentences of imprisonment and restricting the use of a fully suspended sentence The Criminal Justice Act 1993 abolished the ‘unit fine scheme’ in magistrates’ courts, which had been introduced under the Criminal Justice Act 1991. A charging standard for assault was introduced in England and Wales on 31 August 1994 with the aim of promoting consistency between the police and prosecution on the appropriate level of charge to be brought. The Criminal Justice and Public Order Act 1994 created several new offences in England and Wales, mainly in the area of public order, but also including male rape (there is no statutory offence of male rape in Scotland, although such a crime may be charged as serious assault). The Act also: • extended the provisions of section 53 of the Children and Young Persons Act 1993 for 10 to 13-year-olds • increased the maximum sentence length for 15 to 17-year- olds to 2 years • increased the upper limit from £2,000 to £5,000 for offences of criminal damage proceeded against as if triable only summarily • introduced provisions for the reduction of sentences for early guilty pleas, and • increased the maximum sentence length for certain firearm offences Provisions within the Crime (Sentences) Act 1997 (as amended by the Powers of Criminal Courts Sentencing Act 2000) in England and Wales, and the Crime and Punishment (Scotland) Act 1997 in Scotland, included: • an automatic life sentence for a second serious violent or sexual offence unless there are exceptional circumstances (this provision has not been enacted in Scotland) • a minimum sentence of 7 years for an offender convicted for a third time of a class A drug trafficking offence unless the court considers this to be unjust in all the circumstances, and • in England and Wales, the new section 38A of the Magistrates’ Courts’ Act 1980 extending the circumstances in which a magistrates’ court may commit a person convicted of an offence triable-either-way to the Crown Court for sentence – it was implemented in conjunction with section 49 of the Criminal Procedure and Investigations Act 1996, which involves the magistrates’ courts in asking defendants to indicate a plea before the mode of trial decision is taken and compels the court to sentence or commit for sentence any defendant who indicates a guilty plea Under the Criminal Justice and Court Service Act 2000 new terms were introduced for certain orders. Community rehabilitation order is the new name for a probation order. A community service order is now known as a community punishment order. Finally, the new term for a combination order is community punishment and rehabilitation order. In April 2000 the secure training order was replaced by the detention and training order. Section 53 of the Children and Young Persons Act 1993 was repealed on 25 August 2000 and its provisions were transferred to sections 90 to 92 of the Powers of Criminal Courts (Sentencing) Act 2000. Reparation and action plan orders were implemented nationally from 1 June 2000. The drug treatment and testing order was introduced in England, Scotland and Wales from October 2000. The referral order was introduced in England, Scotland and Wales from April 2000. These changes are now reflected in Table 11.8. The system of magistrates’ courts and Crown Courts in Northern Ireland operates in a similar way to that in England and Wales. A particularly significant statutory development, however, has been the Criminal Justice (NI) Order 1996 which introduces a new sentencing regime into Northern Ireland, largely replicating that which was introduced into England and Wales by the Criminal Justice Acts of 1991 and 1993. The order makes many changes to both community and custodial sentences, while introducing new orders such as the combination order, the custody probation order, and orders for release on licence of sexual offenders. 166 Crime and Justice Expenditure on penal establishments in Scotland (Table 11.19) The results shown in this table are reported on a cash basis for financial years 1996/97 to 2000/01 in line with funding arrangements. Financial year 2001/02 is reported on a resource accounting basis in line with the introduction of resource budgeting. Capital charges were introduced with resource accounting and budgeting. 167 Crime and justice 11.1 Police force strength 1: by countr y and sex As at 31 March Numbers 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 England and Wales Regular Police(FTE) Strength: Men KERB 105 145 103 956 101 801 102 321 104 483 106 996 110 150 110 597 109 327 108 118 106 866 Women KERC 19 611 19 885 20 155 21 155 22 784 24 430 26 956 28 898 30 307 31 914 32 861 Seconded:2,3 Men KERD 1 836 2 017 2 077 1 914 2 031 1 689 1 811 1 514 1 545 422 432 Women KERE 222 238 307 292 305 251 284 222 203 60 70 Additional Officers:4 Men KERF 267 324 361 493 567 375 394 522 676 657 661 Women KERG 514 582 519 509 564 709 969 1 042 1 213 1 203 1 471 Special constables Strength:5 Men KERH 11 977 10 860 9 623 8 630 8 014 7 718 7 645 8 074 8 829 9 327 9 719 Women KERI 6 279 5 624 4 724 4 108 3 584 3 319 3 343 3 844 4 350 4 694 4 828 Scotland Regular police Strength:6 Men KERK 12 753 12 545 12 374 12 547 12 513 12 590 12 685 12 798 12 820 12 687 12 532 Women KERL 2 227 2 265 2 325 2 602 2 738 2 897 2 898 3 203 3 401 3 547 3 689 Central service:7 Men KERM 85 88 95 87 116 131 166 195 171 153 219 Women KERN 6 9 13 10 12 17 29 29 21 28 44 Seconded:8 Men KERO 101 85 130 140 133 166 192 216 200 195 196 Women KERP 10 12 18 14 18 24 30 31 27 28 30 Additional regular police: Men HFVM 88 85 80 83 80 79 88 79 85 107 106 Women HFVN 9 6 4 5 12 10 13 21 15 12 14 Special constables Strength: Men KERS 1 286 1 229 981 924 812 711 773 718 888 886 884 Women KERT 437 422 355 336 307 280 328 437 432 471 510 Nor thern Ireland Regular police9,10 Strength: Men KERU 7 523 7 406 6 844 6 227 6 057 6 171 6 108 6 016 5 992 5 949 5 761 Women KERV 933 987 966 1 009 1 080 1 266 1 418 1 547 1 534 1 600 1 653 Reser ve11 Strength: Men KERW 3 469 3 199 2 962 2 629 2 223 1 983 1 824 1 431 1 424 1 212 1 119 Women KERX 705 641 607 556 510 453 485 410 402 400 382 1 Figures for England and Wales excluding those on career breaks or mater nity/pater nity leave . From 1999, figures for Norther n Ireland reflect the position at the end of the financial year, prior to this figures were as at 31 December. 2 Figures exclude secondments outside the police service in England and Wales (eg to the private sector or to law enforcement agencies overseas). 3 From 31 March 2007 onwards details of officers seconded to NCIS and NCS will no longer appear following the launch of Serious Organised Crime Agency (SOCA) in April 2006. 4 Figures include those officers on career breaks or maternity/pater nity leave . Pr ior to 2003, these figures were not collected centrally. 5 Special constable figures are given as a headcount measure. 6 ’Strength’ is FTE police strength, only excluding special constables. 7 Instr uctors at Training Establishments, etc, for merly shown as second- ments. 8 Includes Scottish Crime and Drug Enforcement Agency. 9 Does not include officers on secondment. 10 Also includes student officers. 11 Includes par t-time reser ve and full-time reserve , FTR -664 as at 31 March 2008 (618 males and 46 females). Con PT - 837 as at 31 March 2008 (501 males and 336 females). Sources: Home Office: 020 7035 0289; Scottish Government Justice Department: 0131 244 4253; The Police Service of Norther n Ireland: 028 9065 0222 ext 24070 168 Crime and justice 11.2 Prison Population1 international comparisons Rate16 per 100,000 % change population in Countr y 2001 2002 2003 2004 2005 2006 2007 2006-2007 2007 England & Wales5 67 056 71 324 72 992 75 057 76 896 79 085 80 692 2 149 Nor thern Ireland3 910 1 026 1 160 1 274 1 301 1 433 1 468 2 83 Scotland7 6 137 6 404 6 524 6 805 6 792 7 111 7 291 3 142 Austr ia 6 915 7 511 7 816 9 000 8 767 8 780 8 887 1 107 Belgium12 8 544 8 605 9 308 9 245 9 375 9 635 10 008 4 94 Bulgar ia3 8 971 8 994 9 422 10 066 10 871 11 436 11 058 -3 144 Croatia3 2 623 2 584 2 732 2 803 3 022 3 485 3 833 10 86 Cypr us 369 345 355 546 536 599 673 12 85 Czech Republic6 19 320 16 213 17 277 18 343 18 937 18 578 18 901 2 182 Denmar k 3 150 3 439 3 577 3 762 4 132 3 759 3 406 -9 62 Estonia3 4 803 4 775 4 352 4 576 4 565 4 411 4 327 -2 322 Finland6 3 110 3 469 3 463 3 535 3 883 3 477 3 370 -3 64 Fr ance10 47 005 53 463 57 440 56 271 56 595 55 754 60 677 9 95 Ger many4 80 333 74 904 81 176 81 166 80 410 78 581 75 719 -4 92 Greece9 8 343 8 284 8 555 8 760 9 589 10 113 10 700 6 96 Hungar y6 17 275 17 838 16 507 16 543 15 720 14 821 14 353 -3 143 Iceland 110 107 112 115 119 119 115 -3 37 Ireland (Eire)13 3 025 3 028 2 986 3 083 3 022 3 080 3 325 8 76 Italy6 57 203 56 723 56 845 56 068 59 523 39 005 48 693 25 82 Latvia3 8 831 8 531 8 366 8 179 7 646 6 965 6 548 -6 287 Lithuania3 9 516 11 566 11 070 8 063 8 125 8 137 8 079 -1 239 Luxembourg 357 380 498 548 693 756 745 -1 155 Malta11 257 283 278 277 298 346 387 12 95 Nether lands 15 246 16 239 18 242 20 075 21 826 20 463 18 103 -12 110 Norway 2 666 2 662 2 914 2 975 3 097 3 164 3 280 4 69 Poland5 80 004 80 610 80 692 79 344 82 656 87 669 90 199 3 237 Portugal6 13 260 13 918 13 835 13 152 12 889 12 636 11 587 -8 109 Romania6 49 840 48 081 42 815 39 031 36 700 34 038 29 390 -14 137 Russian Federation3 925 072 980 151 877 393 847 004 763 115 823 451 871 693 6 613 Slovakia6 7 433 7 758 8 873 9 422 8 897 8 249 7 986 -3 148 Slovenia 1 155 1 120 1 099 1 126 1 132 1 301 1 336 3 66 Spain 46 962 50 994 55 244 59 224 61 269 64 120 66 400 4 148 Sweden15 6 089 6 506 6 755 7 332 7 054 7 175 6 770 -6 74 Switzer land14 5 137 4 937 5 214 5 977 6 137 5 888 5 715 -3 76 Turkey 61 336 60 091 64 051 71 148 54 296 67 795 85 865 27 122 Ukraine 198 885 198 946 198 386 193 489 179 519 165 716 154 055 -7 332 Australia2 22 458 22 492 23 555 24 171 25 353 25 790 27 224 6 130 Canada8 35 533 35 736 35 868 34 155 34 365 35 110 - - 108 Japan3 61 242 65 508 69 502 73 734 76 413 79 052 81 255 3 63 Korea(Rep. of)7 62 235 61 084 58 945 57 184 52 403 46 721 46 313 -1 96 Mexico6 165 687 172 888 182 530 193 889 205 821 210 140 212 841 1 193 New Zealand7 5 887 5 738 6 059 6 556 7 100 7 595 7 959 5 188 South Africa4 170 959 178 998 189 748 187 640 187 394 150 302 161 639 8 339 U.S.A.2 1 961 247 2 033 331 2 081 580 2 129 802 2 186 230 2 245 189 2 299 116 2 762 European Union 27 581 419 592 331 607 522 609 873 620 099 601 513 611 078 2 123 1 At 1 September : number of prisoners, including pre-trial detainees/remand pr isoners. 2 At 30 June. 3 At 1 Januar y. 4 At 31 March. 5 At 31 August. 6 At 31 December. 7 Annual averages. Countr ies calculate these on the basis of daily, weekly or monthly figures. 8 Annual averages by financial year (e.g. 2006=1 April 2005-31 March 2006). Rate per 100,000 population reflects the position in 2006. 9 At 1 September (2001-03, 2005-06). At 16 December (2004). At 30 June (2007). 10 Metropolitan and overseas departments and territor ies. 11 At 1 September (2001-06). Annual average (2007). 12 At 1 March. 13 At 1 September (2001-06). At 26 October (2007). 14 At third Wednesday in March (2001). At first Wednesday in September (2002-07). 15 At 1 October. 16 Based on estimates of national population. Sources: Ministries responsible for prisons, national prison administrations; national statistical offices, Council of Europe Annual Penal Statistics (SPACE); World Prison Population List and Wor ld Pr ison Br ief; (Inter national Centre for Prison Studies King’s College, London) 169 Crime and justice 11.3 Recorded crime statistics: by offence group 1 England and Wales Thousands 1997 19982,3 19983 1999 2000 20014 20024,6 2003 2004 2005 20068 2007 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Violence against the person BEAB 250.8 434.3 LQMP 502.8 581.0 600.9 650.3 845.1 967.2 1 048.1 1 059.6 1 046.4 961.2 Sexual offences7 BEAC 33.2 35.9 LQMQ 36.2 37.8 37.3 41.4 58.9 62.5 62.9 62.1 57.5 53.5 Burglar y BEAD 1 015.0 966.3 LQMR 953.2 906.5 836.0 878.5 890.1 820.0 680.4 645.1 622.0 583.7 Robber y BEAE 63.1 63.8 LQMS 66.8 84.3 95.2 121.4 110.3 103.7 91.0 98.2 101.4 84.7 Theft and handling stolen goods (of which): BEAF 2 164.9 2 172.4 LQMT 2 191.4 2 223.6 2 145.4 2 267.0 − − − − − − Offences against vehicles I8RM .. .. .. .. 1 074.7 985.0 820.1 792.8 765.0 656.5 Other theft offences I8RN .. .. .. .. 1 336.9 1 327.9 1 247.6 1 226.2 1 180.8 1 121.1 Fr aud and forger y BEAG 134.3 236.7 LQMU 279.5 334.8 319.3 314.9 331.1 319.6 280.1 232.8 199.7 155.4 Cr iminal damage BEAH 877.0 866.5 LQMV 879.6 945.7 960.1 1 064.5 1 120.6 1 218.5 1 197.5 1 184.3 1 185.0 1 036.2 Dr ug offences5 LQMO .. 21.3 LQYT 135.9 121.9 113.5 121.4 143.3 143.5 145.8 178.5 194.2 229.0 Other offences5 BEAI 36.6 57.3 LQYU 63.6 65.7 63.2 65.7 64.0 65.7 64.0 75.6 75.7 69.3 Total BEAA 4 598.3 4 943.7 LQYV 5 109.1 5 301.2 5 170.8 5 525.0 5 975.0 6 013.8 5 637.5 5 555.2 5 427.6 4 950.7 1 See chapter text. 2 Estimates. 3 Figures from this period are not directly comparable with data prior to 1998/99 and from 2002/03 onwards. 4 The National Crime Recording Standard (NCRS) was introduced in Eng- land and Wales from 1 April 2002. These figures are not directly compara- ble with those for earlier years. For more details about the inflationary ef- fects of the NCRS on the 2001/02 and 2002/03 figures see chapter text. A detailed explanation for the NCRS can be accessed via the following Home Office Research Development and Statistics website http://www.homeof- fice.gov.uk/rds/countr ules.html 5 Prior to 1 April 1998 the offence of drug trafficking was included in the ’Other offences’ group. From 1 April 1999, under the new counting rules, drug traffick- ing became part of a new ’Dr ug offences’ group which, now also includes pos- session and other drug offences. For 1998/99 under the old counting rules, dr ug trafficking has been separated out and listed under drugs offences. 6 Includes the British Transpor t Police (BTP) from 2002/03 onwards. 7 The Sexual Offences Act 2003, introduced in May 2004, altered the definitions and coverage of sexual offences. 8 The offence groupings were revised in 2006/07 and backdated to 2002/03. Source: Home Office: 020 7035 0307 170 Crime and justice 11.4 Offenders found guilty: by offence group 1,2,3, England and Wales Magistrates’ courts and the Crown Court Thousands 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 All ages4 Indictable offences Violence against the person: KJEJ 34.6 35.7 34.4 34.0 35.3 37.7 38.0 39.1 40.9 41.9 42.1 Murder KESB 0.3 0.3 0.3 0.3 0.3 0.3 0.3 0.4 0.4 0.4 0.4 Manslaughter KESC 0.3 0.3 0.3 0.3 0.3 0.3 0.2 0.3 0.3 0.2 0.2 Wounding KESD 32.7 35.2 33.9 33.5 33.5 35.7 35.9 36.9 38.6 39.8 40.0 Other offences of violence against the person KESE 1.3 1.3 1.3 1.3 1.2 1.4 1.5 1.3 1.3 1.2 1.5 Sexual offences KESF 4.5 4.6 4.3 3.9 3.8 4.4 4.4 4.8 4.8 4.9 5.1 Burglar y KESG 31.7 30.8 29.3 26.2 24.8 26.7 25.7 24.3 23.0 23.0 23.8 Robber y KESH 5.6 5.5 5.6 6.0 6.8 7.7 7.3 7.5 7.1 8.1 8.8 Theft and handling stolen goods KESI 118.4 125.7 131.2 128.0 127.0 127.3 119.1 110.6 103.8 99.0 106.0 Fr aud and forger y KESJ 17.0 19.8 20.3 19.2 18.3 18.1 18.0 18.1 18.5 18.2 19.9 Cr iminal damage KESK 10.5 10.9 10.9 10.2 10.7 11.0 11.2 11.7 11.7 12.7 12.5 Dr ugs KBWX 40.7 48.8 48.7 44.6 45.6 49.0 51.2 54.5 39.1 39.6 44.6 Other offences (excluding motor ing) KESL 47.6 49.6 47.9 44.5 44.2 48.0 51.4 54.7 53.1 50.0 45.3 Motor ing offences KESM 9.5 9.0 8.1 7.6 7.7 8.2 8.7 8.0 6.6 5.9 5.4 Total KESA 320.1 341.7 342.0 325.5 324.2 338.3 335.1 317.8 308.5 303.2 313.3 Summar y offences Assaults KESO 32.0 35.3 37.5 37.4 37.7 40.7 45.6 53.4 60.4 64.5 68.9 Betting and gaming KESP − − − − − − − − − − − Offences with pedal cycles KBWY 1.5 2.1 1.3 0.8 0.6 0.5 0.6 0.7 0.7 0.7 0.7 Other Highways Acts offences KBWZ 3.2 3.1 2.9 2.7 2.4 2.2 1.9 1.8 2.0 2.1 1.7 Breach of local or other regulations KESQ 6.4 5.8 6.5 5.0 4.3 3.9 3.4 3.1 2.6 1.9 1.6 Intoxicating Liquor Laws: Dr unkenness KESR 28.8 30.8 28.7 27.2 26.2 26.9 27.7 21.1 16.1 15.7 17.4 Other offences KESS 0.6 0.6 0.5 0.4 0.3 0.4 0.7 0.8 1.0 1.2 1.0 Education Acts KEST 3.7 5.0 5.1 5.1 5.6 5.8 5.8 6.5 6.4 7.4 8.4 Game Laws KESU 0.3 0.4 0.3 0.2 0.2 0.3 0.2 0.2 0.4 − 0.1 Labour Laws KESV 0.1 0.1 0.1 0.1 − − − − − − − Summar y offences of criminal damage and malicious damage KESW 24.7 26.5 27.9 28.0 26.9 28.3 29.8 31.5 31.1 30.2 32.1 Offences by prostitutes KESX 6.6 6.0 4.0 4.1 3.7 4.2 3.9 2.9 2.2 1.6 1.4 Railway offences KESY 11.4 12.6 15.2 17.4 22.6 29.4 34.8 35.0 40.2 44.6 46.0 Revenue Laws KESZ 143.5 174.7 165.8 175.0 146.9 167.8 172.5 175.5 130.5 104.4 104.8 Vagrancy Acts KETB 2.0 2.2 2.7 3.3 3.2 3.8 3.8 2.9 2.2 2.2 2.0 Wireless Telegraphy Acts KETC 77.0 76.6 55.8 105.7 83.8 96.6 79.9 89.3 105.0 115.6 121.0 Other summary offences KETD 74.7 80.9 79.3 78.1 77.8 76.4 82.9 97.9 108.2 103.6 86.0 Motor ing offences (summary) KETA 649.3 665.2 632.9 607.5 583.3 595.8 662.6 707.9 667.1 622.5 611.1 Total KESN 1 065.8 1 128.0 1 066.5 1 098.2 1 025.5 1 083.0 1 156.1 1 230.7 1 175.9 1 118.2 1 102.6 Persons aged 10 to under 185 Indictable offences Violence against the person: KETF 5.9 5.9 6.2 6.4 6.9 6.9 6.6 6.9 7.4 7.5 7.7 Murder KBXA − − − − − − − − − − − Manslaughter KBXB − − 0.2 − − − − − − − − Wounding KBXC 5.8 5.9 5.9 6.3 6.8 6.8 6.5 6.5 7.3 7.4 7.6 Other offences of violence against the person KCAA 0.1 0.1 − 0.1 0.1 0.1 0.1 0.3 0.2 0.1 0.1 Sexual offences KETG 0.5 0.5 0.5 0.5 0.5 0.6 0.4 0.6 0.6 0.5 0.5 Burglar y KETH 8.6 8.5 7.8 6.8 6.3 6.4 5.8 5.9 6.0 6.2 6.1 Robber y KETI 2.3 2.2 2.0 2.2 2.8 2.8 2.6 3.0 3.1 3.7 4.1 Theft and handling stolen goods KETJ 19.6 21.9 22.7 21.0 20.6 18.4 16.5 16.8 17.1 16.3 18.2 Fr aud and forger y KETK 0.8 1.0 1.1 1.0 1.0 1.2 0.8 0.8 0.7 0.6 0.7 Cr iminal damage KETL 2.3 2.3 2.7 2.6 2.9 2.9 2.9 3.2 3.3 3.7 3.6 Dr ugs KCAB 1.8 2.7 3.1 3.7 4.3 5.0 5.1 4.5 4.6 4.5 5.3 Other offences (excluding motor ing) KETM 4.2 4.2 4.3 4.4 4.4 4.4 4.3 4.6 4.5 4.1 4.2 Motor ing KETN 0.4 0.4 0.4 0.6 0.7 0.8 0.8 0.7 0.6 0.5 0.4 Total KETE 46.4 49.7 50.6 49.2 50.3 49.1 46.0 47.0 47.8 47.6 50.9 Summar y offences Offences with pedal cycles KETP 0.2 0.3 0.3 0.2 0.2 0.2 0.2 0.2 0.3 0.2 0.2 Breach of local or other regulations KETR 0.2 0.2 0.2 0.2 0.2 0.1 0.1 0.1 0.1 0.1 0.1 Summar y offences of criminal damage and malicious damage KETS 4.4 5.2 6.1 6.7 6.9 7.0 7.2 8.3 8.8 8.6 9.2 Railway offences KETT 0.5 0.5 0.5 0.4 0.4 0.4 0.3 0.4 0.4 0.4 0.5 Other summary offences KETU 16.6 19.4 20.0 20.2 20.8 20.6 20.9 23.1 24.0 24.7 26.8 Motor ing offences (summary) KCAC 10.8 11.3 12.6 14.5 16.7 17.1 17.8 17.0 14.8 12.1 9.9 Total KETO 22.0 36.8 39.6 42.2 45.2 45.4 46.6 49.2 48.3 46.1 46.6 1 See chapter text. 2 Data provided on the principal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data col- lection processes and their inevitable limitations are taken into account when those data are used. 4 Includes ’Companies’, etc . 5 Figures for persons aged 10 to under 18 are included in the totals above . Sources: Office for Criminal Justice Refor m: 020 7035 4955; Evidence and Analysis 171 Crime and justice 11.5 Offenders cautioned: by offence group 1,2,3 England and Wales Thousands 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 All ages4 Indictable offences Violence against the person KELB 23.6 23.5 21.2 19.9 19.5 23.6 28.8 36.6 51.0 57.3 52.3 Murder KCAD − − − − − − − − − − − Manslaughter KCAE − − − − − − − − − − − Wounding KCAF 23.3 22.9 20.6 19.3 18.9 22.9 27.9 35.0 49.6 55.7 50.8 Other violence against the person KCAG 0.4 0.6 0.6 0.6 0.6 0.7 0.9 1.2 1.4 1.5 1.6 Sexual offences KELC 1.9 1.7 1.5 1.3 1.2 1.1 1.4 1.6 1.8 1.9 2.0 Burglar y KELD 9.4 8.4 7.7 6.6 6.4 5.8 5.6 5.6 6.5 7.7 7.0 Robber y KELE 0.7 0.6 0.6 0.6 0.5 0.4 0.4 0.5 0.6 0.7 0.6 Theft and handling stolen goods KELF 82.8 83.6 75.4 67.6 63.5 54.2 54.5 61.9 67.6 72.4 72.8 Fr aud and forger y KELG 7.2 7.4 7.2 6.2 5.8 5.3 5.5 6.0 6.9 8.0 8.6 Cr iminal damage KELH 2.8 2.7 3.0 3.2 3.4 3.1 3.7 5.5 7.2 9.0 8.8 Dr ug offences KCAI 56.0 58.7 49.4 41.1 39.4 44.9 45.7 32.6 34.4 37.4 43.0 Other offences KELI 5.0 5.0 4.6 4.4 4.1 4.4 5.3 6.0 6.9 9.3 10.0 All offenders cautioned KELA 189.4 191.7 170.6 150.9 143.9 142.9 150.7 156.3 182.9 203.7 205.1 Summar y offences Assaults KELK 9.1 .. 17.0 17.2 18.2 17.3 19.8 26.1 40.8 64.6 72.6 Betting and gaming KELL − − − − − − − − − − − Offences with pedal cycles KCAK 0.9 0.8 0.6 0.3 0.2 0.1 0.1 0.3 0.3 0.3 0.3 Other Highways Acts offences KCAL 0.8 0.8 0.7 0.4 0.3 0.2 0.3 0.3 0.2 0.3 0.3 Breach of local or other regulations KELM 0.9 0.9 0.7 0.5 0.3 0.3 0.2 0.2 0.2 0.1 0.1 Intoxicating Liquor Laws: Dr unkenness KELN 25.7 22.8 20.3 18.1 16.6 16.2 18.1 13.5 8.6 5.8 6.1 Other offences KELO 0.9 0.7 0.4 0.2 0.3 0.3 0.3 0.3 0.3 0.2 0.2 Education Acts KELP − − − − − − 0.1 0.1 0.1 0.1 0.1 Game Laws KELQ 0.1 0.1 0.1 − − − − − − − − Labour Laws KELR − − − − − − − − − − − Summar y offences of criminal damage and malicious damage KELS 27.6 28.3 28.7 26.8 26.7 24.7 27.6 33.3 38.0 43.2 44.3 Offences by prostitutes KELT 3.5 3.5 2.1 1.3 1.0 1.8 1.3 1.6 1.4 1.2 1.2 Railway offences KELU 0.1 − − − − − − − 0.1 0.1 0.1 Revenue Laws KELV 0.1 0.1 0.1 − − − − − − − − Vagrancy Acts KELX 0.6 1.2 0.8 0.4 0.3 0.3 0.3 0.2 0.3 0.4 0.5 Wireless Telegraphy Acts KELY − − − − − − − − − − − Other summary offences KELZ 22.3 37.0 24.1 22.5 21.9 21.0 22.9 23.5 25.2 29.2 32.1 All offenders cautioned KELJ 92.7 96.2 95.6 88.1 85.9 82.4 91.1 99.5 115.5 145.6 157.8 Persons aged 10 to under 185 Indictable offences Violence against the person KEMB 9.6 9.5 8.5 8.3 8.7 9.3 11.0 13.6 16.5 16.6 13.9 Murder KCAN − − − − − − − − − − − Manslaughter KCAO − − − − − − − − − − − Wounding KCAP 9.6 9.4 8.4 8.2 8.6 9.2 10.9 13.5 16.4 16.5 13.8 Other violence against the person KCCE − 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 Sexual offences KEMC 0.7 0.6 0.6 0.5 0.5 0.4 0.5 0.5 0.6 0.6 0.7 Burglar y KEMD 7.5 6.7 6.1 5.4 5.3 4.6 4.4 4.2 4.6 5.0 4.5 Robber y KEME 0.6 0.5 0.5 0.5 0.5 0.4 0.4 0.4 0.5 0.6 0.5 Theft and handling stolen goods KEMF 40.9 44.0 39.6 36.9 35.2 28.1 28.3 33.1 36.8 39.4 39.7 Fr aud and forger y KEMG 1.4 1.6 1.7 1.5 1.3 1.1 1.0 1.0 1.1 1.3 1.4 Cr iminal damage KEMH 1.8 1.7 1.9 2.1 2.3 1.9 2.3 3.1 3.9 4.7 4.5 Dr ug offences KCCF 9.7 11.0 9.6 7.9 8.5 9.5 9.6 8.3 7.8 7.1 8.0 Other offences KEMI 1.5 1.5 1.4 1.3 1.3 1.3 1.4 1.6 1.6 1.9 2.0 All offenders cautioned KEMA 73.7 77.2 69.8 64.3 63.5 56.6 58.7 65.9 73.4 77.1 75.2 Summar y offences Offences with pedal cycles KEMK 0.5 0.4 0.3 0.2 0.1 0.1 0.1 0.2 0.2 0.2 0.2 Breach of local or other regulations KEMM 0.3 0.3 0.2 0.2 0.1 0.1 0.1 0.1 0.1 0.1 0.1 Summar y offences of criminal damage and malicious damage KEMN 13.5 14.2 14.7 14.4 15.2 12.6 14.3 17.1 19.8 21.9 21.7 Railway offences KEMO 0.1 − − − − − − − − − − Other summary offences KEMP 16.4 17.7 19.0 18.4 19.1 17.1 18.8 21.7 25.1 29.6 30.2 All offenders cautioned KEMJ 30.8 32.5 34.2 33.2 34.5 29.9 33.3 39.1 45.1 51.7 52.1 1 See chapter text. 2 Data provided on the principal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by police forces. As a consequence, care should be taken to ensure data collection pro- cesses and their inevitable limitations are taken into account when those data are used. 4 Includes ’Companies’, etc. 5 Figures for persons aged 10 to under 18 are included in the totals above . Sources: Office for Criminal Justice Refor m: 020 7035 4955; Evidence and Analysis 172 Crime and justice 11.6 Offenders found guilty of offences: by age and sex 1,2,3 England and Wales Magistrates’ courts and the Crown Court Thousands 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Males Indictable offences All ages KEFA 276.5 292.9 291.7 276.5 275.5 287.1 283.4 268.4 261.3 258.4 267.0 10 and under 15 years KEFB 7.1 8.1 8.9 8.7 9.0 8.8 8.0 8.5 8.6 8.3 8.5 15 and under 18 years KEFC 33.6 35.2 35.1 33.8 34.4 33.7 31.4 31.8 32.0 32.5 35.0 18 and under 21 years KEFD 48.4 51.8 52.6 49.9 48.2 46.6 43.8 39.9 38.5 39.0 40.6 21 years and over KEFE 187.3 197.9 195.0 184.0 183.9 198.0 200.2 188.2 182.2 178.7 182.9 Summar y offences All ages KEFF 880.9 929.0 886.6 881.0 826.6 866.4 937.1 990.0 931.2 877.7 851.5 10 and under 15 years KEFG 3.0 3.9 5.1 5.8 6.2 6.1 6.1 6.7 7.2 7.0 7.5 15 and under 18 years KEFH 25.9 28.5 30.3 32.2 34.5 34.6 35.3 36.4 34.6 32.3 31.9 18 and under 21 years KEFI 91.0 96.3 94.8 93.0 92.2 94.7 99.9 98.2 89.4 85.1 80.5 21 years and over KEFJ 761.0 800.3 756.5 750.0 693.6 731.0 795.8 848.8 800.1 753.4 731.8 Females Indictable offences All ages KEFK 42.2 47.3 49.0 47.7 47.4 50.0 50.2 48.4 46.1 43.7 45.3 10 and under 15 years KEFL 1.0 1.4 1.4 1.5 1.6 1.6 1.6 1.7 1.7 1.7 1.7 15 and under 18 years KEFM 4.6 5.1 5.2 5.2 5.3 5.1 4.9 5.0 5.5 5.1 5.5 18 and under 21 years KEFN 6.3 7.1 7.6 7.5 7.0 6.9 6.2 5.7 5.3 4.8 4.6 21 years and over KEFO 30.4 33.7 34.7 33.5 33.5 36.5 37.5 35.9 33.6 32.1 33.4 Summar y offences All ages KEFP 174.9 188.3 171.0 208.3 190.2 208.7 210.5 231.2 236.6 233.9 244.2 10 and under 15 years KEFQ 0.5 0.6 0.8 0.9 0.9 1.1 1.2 1.4 1.6 1.6 1.7 15 and under 18 years KEFR 3.4 3.8 3.4 3.3 3.6 3.6 4.0 4.6 4.9 5.2 5.6 18 and under 21 years KEFS 11.1 12.1 10.8 11.8 11.1 11.6 12.6 13.0 13.5 14.2 14.9 21 years and over KEFT 160.0 171.7 155.4 192.3 174.7 192.4 192.7 212.1 216.6 212.9 221.9 Companies, etc Indictable offences KEFU 1.3 1.5 1.3 1.3 1.3 1.2 1.4 1.1 1.1 1.0 1.1 Summar y offences KEFV 10.0 10.7 8.9 8.8 8.6 7.9 8.6 9.4 8.1 6.6 6.9 1 See chapter text. 2 These data are on the principal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used. Source: Office for Criminal Justice Refor m: 020 7035 4955 11.7 Persons cautioned by the police: by age and sex 1,3,4 England and Wales Thousands 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Males Indictable offences All ages KEGA 143.3 142.9 126.1 109.7 103.8 104.4 109.8 110.0 129.9 147.6 148.5 10 and under 15 years2 KEGB 22.9 23.7 22.0 20.3 19.7 16.7 16.9 18.7 21.0 21.7 19.7 15 and under 18 years2 KEGC 32.0 32.0 28.7 25.0 24.5 23.3 24.1 25.9 28.0 30.2 30.0 18 and under 21 years KEGD 25.2 25.7 22.7 20.1 18.5 18.9 19.4 16.7 19.8 22.9 23.7 21 years and over KEGE 63.2 61.5 52.7 44.3 41.2 45.6 49.4 48.7 61.1 72.8 75.1 Summar y offences All ages KEGF 75.7 76.9 76.1 69.6 68.0 63.8 70.9 76.0 87.6 112.0 120.2 10 and under 15 years2 KEGG 9.9 10.6 11.7 12.0 12.7 10.3 10.9 12.6 15.5 17.9 17.8 15 and under 18 years2 KEGH 16.1 16.1 16.1 14.9 15.2 13.3 15.1 17.2 18.6 21.3 21.3 18 and under 21 years KEGI 12.9 13.2 13.0 11.9 11.0 11.0 12.4 12.3 12.2 15.0 16.4 21 years and over KEGJ 36.9 37.0 35.3 30.9 29.0 29.2 32.5 33.9 41.2 57.8 64.6 Females Indictable offences All ages KEGK 46.0 48.8 44.5 41.2 40.1 38.5 41.0 46.3 53.0 56.2 56.6 10 and under 15 years2 KEGL 9.2 11.1 9.8 10.0 10.1 8.4 8.6 10.6 12.2 12.5 12.6 15 and under 18 years2 KEGM 9.5 10.3 9.3 9.0 9.3 8.3 9.1 10.7 12.2 12.7 13.0 18 and under 21 years KEGN 5.7 5.9 5.7 5.2 4.9 4.8 4.9 5.2 5.8 6.2 6.3 21 years and over KEGO 21.5 21.4 19.6 17.0 15.9 17.0 18.4 19.9 22.8 24.7 24.8 Summar y offences All ages KEGP 17.0 19.2 9.4 18.5 18.0 18.6 20.2 23.5 28.5 34.2 37.6 10 and under 15 years2 KEGQ 1.7 2.1 2.5 2.8 2.9 2.7 3.0 3.9 5.1 5.6 5.7 15 and under 18 years2 KEGR 3.2 3.7 3.9 3.7 3.8 3.6 4.3 5.4 6.2 7.1 7.3 18 and under 21 years KEGS 2.3 2.6 2.7 2.5 2.3 2.4 2.7 2.9 3.3 4.1 4.7 21 years and over KEGT 9.9 10.8 10.3 9.6 9.0 9.8 10.2 11.3 13.9 17.4 20.0 1 See chapter text. 2 From 1 June 2000 the Crime and Disorder Act 1998 came into force nation- ally and removed the use of cautions for persons under 18 and replaced them with reprimands and final war nings. 3 These data are on the principal offence basis. 4 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been extracted from large administrative data systems generated by police forces. As a con- sequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used. Source: Office for Criminal Justice Refor m:020 7035 4955 173 Crime and justice 11.8 Sentence or order passed on persons sentenced for indictable offences: by sex 1 England and Wales Magistrates’ courts and the Crown Court Percentages and thousands 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Males Sentence or order Absolute discharge KEJB 0.7 0.7 0.6 0.6 0.6 0.8 0.9 0.8 0.7 0.7 0.7 Conditional discharge KEJC 15.5 15.3 15.0 14.1 13.4 12.4 13.0 12.2 11.9 11.3 12.2 Fine KEJF 28.2 28.4 27.7 25.7 24.5 23.9 24.0 20.9 19.4 17.4 16.2 Community rehabilitation order KEJD 10.0 10.0 10.1 10.1 10.7 10.6 10.1 9.5 5.6 0.8 0.5 Super vision order KEJE 2.7 2.7 2.7 2.4 2.3 2.1 1.8 2.0 2.1 2.3 2.4 Community punishment order KEJG 9.5 9.3 9.3 9.5 9.0 8.6 8.3 8.8 6.3 1.2 0.5 Attendance centre order KEJH 1.8 1.7 1.8 1.5 1.2 0.7 0.6 0.6 0.6 0.6 0.6 Community punishment and KIJW 3.7 3.8 3.7 3.6 2.6 2.6 2.6 2.8 2.1 0.5 0.4 rehabilitation order Curfew order LUJP 0.1 0.2 0.3 0.5 0.7 1.1 1.6 2.7 2.3 1.3 1.3 Reparation order SNFI .. .. .. 0.7 1.3 0.8 0.4 0.4 0.5 0.6 0.6 Action plan order SNFJ .. .. .. 0.9 1.7 1.1 0.7 0.8 0.8 0.8 0.8 Dr ug treatment and testing order SNFK .. .. .. 0.1 1.2 1.4 1.9 2.3 1.6 0.1 − Referral order SNFL .. .. .. .. .. 3.0 4.0 4.4 5.2 5.2 5.5 Community order2 GN7P .. .. .. .. .. .. .. .. 8.7 19.8 20.4 Suspended sentence order KEJL 0.8 0.7 0.6 0.7 0.6 0.5 0.5 0.6 1.7 6.7 8.6 Imprisonment Sec 90-92 LUJQ 0.3 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.1 Detention and training order LUJR .. .. .. 1.4 1.9 1.8 1.5 1.6 1.6 1.7 1.5 Young offender institution KEJK 6.1 6.0 6.2 5.2 4.5 4.2 3.6 3.8 3.7 3.6 3.8 Unsuspended imprisonment KEJM 17.9 18.2 18.7 19.9 20.0 20.9 20.6 21.5 21.2 20.4 19.9 Other sentence or order KEJN 3.0 2.6 3.1 3.1 3.4 3.3 3.5 4.1 3.9 4.4 4.0 Total number of males (thousands) = 100 per cent KEJA 275.4 292.4 291.3 277.1 274.6 285.6 282.3 267.5 259.4 258.4 265.8 Females Sentence or order Absolute discharge KEKB 0.8 0.7 0.7 0.6 0.6 0.9 1.0 0.8 0.8 0.7 0.8 Conditional discharge KEKC 29.4 28.7 26.9 24.9 23.9 22.0 22.5 21.8 20.7 20.1 20.8 Fine KEKF 21.8 21.3 20.8 20.1 18.6 17.9 18.5 16.7 15.2 12.8 12.1 Community rehabilitation order KEKD 19.1 19.1 19.4 19.6 19.1 19.2 17.0 15.4 9.0 1.4 0.5 Super vision order KEKE 2.9 3.1 2.9 2.8 2.7 2.1 2.1 2.1 2.4 2.5 2.6 Community punishment order KEKG 6.5 6.5 7.1 7.5 7.3 6.8 6.6 7.6 6.1 1.6 0.4 Attendance centre order KEKH 1.0 0.9 0.9 0.8 0.6 0.4 0.3 0.3 0.3 0.5 0.3 Community punishment and KIJX 3.2 3.4 3.3 3.0 2.1 2.1 1.8 1.9 1.5 0.5 0.2 rehabilitation order Curfew order LUJT 0.1 0.1 0.3 0.4 0.6 0.8 1.4 2.2 2.3 1.1 1.1 Reparation order SNFX .. .. .. 0.8 1.6 0.8 0.4 0.5 0.5 0.5 0.6 Action plan order SNFZ .. .. .. 1.0 2.0 1.2 0.8 0.8 1.0 0.9 0.9 Dr ug treatment and testing order SNGA .. .. .. 0.1 1.4 1.7 2.4 3.2 2.1 0.2 − Referral order SNGB .. .. .. .. .. 3.9 5.1 5.6 6.7 6.9 7.0 Community order2 GN7Q .. .. .. .. .. .. .. .. 9.9 23.3 24.5 Suspended sentence order KEKL 1.6 1.5 1.3 1.3 1.2 1.1 1.0 1.3 2.5 7.8 9.6 Imprisonment Sec 90-92 LUJU 0.1 .. 0.1 0.1 0.1 0.1 0.1 0.1 0.1 − − Detention and training order LUJV .. .. .. 0.6 0.8 0.8 0.7 0.7 0.8 0.7 0.8 Young offender institution KEKK 1.9 2.2 2.4 2.2 2.0 1.9 1.7 1.4 1.6 1.6 1.4 Unsuspended imprisonment KEKM 9.4 10.0 11.0 11.5 12.1 12.7 12.8 13.2 12.6 12.8 12.4 Other sentence or order KEKN 2.2 2.5 3.0 2.9 3.5 3.4 3.8 4.3 3.8 4.3 3.7 Total number of females (thousands) = 100 per cent KEKA 42.1 47.2 49.0 47.8 47.3 49.9 50.2 48.3 46.1 43.7 45.4 1 See chapter text. Ever y effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been extracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used. 2 The community order was introduced on 4 April 2005 and applies to offences committed on or after that date. Source: Office for Criminal Justice Refor m: 020 7035 4955 174 Crime and justice 11.9 Persons sentenced to life imprisonment or immediate custody: by sex and ageEngland and Wales Number of Persons 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Life imprisonment1 Males All ages I28G 346 380 465 446 484 536 489 548 594 531 471 10 - 17 years I28D 24 11 26 19 28 21 11 15 27 16 23 18 - 20 years I28E 29 25 38 9 27 21 47 24 50 46 70 21 years and over I28F 293 344 401 418 429 494 431 509 517 469 378 Females All ages I28K 21 14 19 21 19 19 24 22 31 16 21 10 - 17 years I28H 3 1 3 2 1 1 − 1 1 − 3 18 - 20 years I28I 2 − 2 1 3 2 4 2 4 2 3 21 years and over I28J 16 13 14 18 15 16 20 19 26 14 15 All persons All ages I28O 367 394 484 467 503 555 513 570 625 547 492 10 - 17 years I28L 27 12 29 21 29 22 11 16 28 16 26 18 - 20 years I28M 31 25 40 10 30 23 51 26 54 48 73 21 years and over I28N 309 357 415 436 444 510 451 528 543 483 393 Immediate custody2 Males All ages JF7E 87 989 93 619 97 355 97 841 97 728 102 240 98 371 97 020 91 954 86 239 85 285 10 - 17 years JF7F 6 751 6 870 7 218 6 949 7 119 6 865 5 765 5 866 5 463 5 669 5 277 18 - 20 years JF7G 15 114 16 127 17 011 17 315 16 855 16 269 14 418 13 793 13 237 12 802 13 126 21 years and over JF7H 66 124 70 622 73 126 73 577 73 754 79 106 78 188 77 361 73 254 67 768 66 882 Females All ages JF7I 5 485 6 553 7 485 7 879 8 042 8 812 8 786 8 732 8 231 7 783 7 722 10 - 17 years JF7J 305 335 406 444 448 529 424 443 498 453 466 18 - 20 years JF7K 640 851 961 1 116 1 063 1 071 969 817 875 841 793 21 years and over JF7L 4 540 5 367 6 118 6 319 6 531 7 212 7 393 7 472 6 858 6 489 6 463 All persons All ages JF7M 93 474 100 172 104 840 105 720 105 770 111 052 107 157 105 752 100 185 94 022 93 007 10 - 17 years JF7N 7 056 7 205 7 624 7 393 7 567 7 394 6 189 6 309 5 961 6 122 5 743 18 - 20 years JF7O 15 754 16 978 17 972 18 431 17 918 17 340 15 387 14 610 14 112 13 643 13 919 21 years and over JF7P 70 664 75 989 79 244 79 896 80 285 86 318 85 581 84 833 80 112 74 257 73 345 1 Includes detention under the Pow ers of Criminal Courts (Sentencing) Act 2000, Secs 90-92 (Childrens and Young Persons Act 1993, Secs 53(1) & (2) prior to Aug 2000) (persons aged 10-17), custody for life under the Po wers of Criminal Courts (Sentencing) Act 2000, Secs 93 and 94 (1) (per- sons aged 18 - 20), mandatory life sentences under the Pow ers of Criminal Cour ts (Sentencing) Act 2000 Sec 109 (persons aged 18 and over) and immediate imprisonment (persons aged 21 and over). Indeterminate sentences for public protection under the Cr iminal Justice Act 2003 are excluded. 2 Excludes life and indeterminate sentences. Source: Office for Criminal Justice Refor m:020 8760 1404 175 Crime and justice 11.10 Receptions and average population in custodyEngland and Wales Numbers1 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Receptions Type of inmate: Untr ied KEDA 62 066 64 697 64 572 54 892 53 467 58 708 58 696 54 556 55 455 55 809 55 305 Convicted, unsentenced KEDB 36 424 43 387 45 893 43 889 46 851 53 301 53 246 50 115 49 104 47 995 43 566 Sentenced KEDE 87 168 91 282 93 965 93 671 91 978 94 807 93 495 95 161 92 452 90 038 91 736 Immediate custodial sentence KEDF 80 832 85 908 90 238 91 195 90 523 93 615 92 245 93 326 90 414 88 134 90 261 Young offenders KEDG 18 743 19 599 21 020 21 333 20 969 20 236 18 179 18 264 17 819 17 985 19 022 Up to 12 months KEDH 11 867 12 942 14 330 14 639 14 234 12 891 11 850 11 855 11 610 11 526 12 295 12 months up to 4 years KEDJ 5 949 5 921 5 904 5 877 5 856 6 355 5 412 5 426 5 243 5 317 5 530 4 years up to and including life KEDL 927 736 786 817 879 990 917 983 966 1 142 1 197 Adults KFBO 62 089 66 309 69 218 69 862 69 554 73 379 74 066 75 062 72 595 70 149 71 239 Up to 12 months KEDV 38 702 42 513 45 662 46 759 46 146 47 870 48 962 49 814 48 190 45 768 46 706 12 months up to 4 years KEDW 17 546 18 100 17 751 17 290 17 116 18 313 17 968 17 988 17 397 16 970 17 233 4 years up to and including life KEDX 5 841 5 696 5 805 5 813 6 292 7 196 7 136 7 260 7 008 7 411 7 300 Committed in default of payment of a fine KEDY 6 336 5 374 3 727 2 476 1 455 1 192 1 250 1 835 1 876 1 904 1 475 Young offenders KEEA 555 568 366 216 138 110 116 155 162 118 92 Adults KAFQ 5 781 4 806 3 361 2 260 1 317 1 082 1 134 1 680 1 714 1 786 1 383 Non-cr iminal pr isoners KEDM 3 204 3 290 3 271 3 153 4 630 2 674 3 142 3 669 3 668 4 734 3 888 Immigration Act 1971 KEDN 2 122 2 348 2 443 2 455 4 035 2 093 2 457 3 041 3 093 4 073 3 347 Others KEDO 1 082 942 828 698 595 581 685 628 575 661 541 Average population Total in custody KEDP 61 114 65 298 64 771 64 602 66 301 70 861 73 038 74 657 75 979 78 150 80 395 Total in prison service establishments KFBQ 61 114 65 298 64 771 64 602 66 301 70 778 73 038 74 657 75 979 78 127 80 216 Police cells2 KFBN − − − − − 83 − − − 22 179 Untr ied KEDQ 8 453 8 157 7 947 7 098 6 924 7 727 7 862 7 735 8 088 8 293 8 273 Convicted, unsentenced KEDR 3 678 4 411 4 571 4 177 4 314 5 064 5 060 4 750 4 806 4 967 4 560 Sentenced KEDU 48 413 52 176 51 691 52 685 54 051 57 222 59 007 61 071 61 991 63 504 65 963 Immediate custodial sentence KFBR 48 272 52 045 51 596 52 620 54 006 57 184 58 959 61 012 61 925 63 429 65 533 Young offenders KFBS 7 821 8 490 8 336 8 435 8 558 8 777 8 421 8 290 8 239 8 535 9 188 Deter minate sentence I7IJ 7 707 8 363 8 197 8 288 8 408 8 616 8 262 8 123 8 030 8 141 8 502 Indeter minate sentence I7IL 114 127 139 147 150 161 159 167 209 394 683 Adults KFCO 40 451 43 556 43 261 44 185 45 448 48 408 50 536 52 721 53 686 54 894 56 776 Deter minate sentence I7IK 36 838 39 733 39 183 39 779 40 768 43 411 45 278 47 264 47 914 47 885 47 850 Indeter minate sentence I7IM 3 613 3 823 4 078 4 406 4 680 4 997 5 258 5 457 5 772 7 009 8 850 Committed in default of payment of a fine KFCS 141 131 95 64 45 37 48 59 71 82 79 Young offenders KFEW 13 15 9 4 6 2 3 4 3 3 3 Adults KFEX 128 116 86 59 39 35 45 54 68 79 76 Non-cr iminal pr isoners KEEB 572 554 558 641 1 012 847 1 107 1 100 1 087 1 355 1 420 Immigration Act 1971 KEEC 485 474 485 576 955 777 1 041 1 033 1 022 1 288 1 348 Others KEED 87 79 73 63 57 69 67 68 65 65 72 Accommodation3 I7IQ 56 329 61 253 62 369 63 436 63 757 64 232 66 104 67 576 69 443 70 585 73 618 1 The components do not always add up to the totals as they have been rounded independently. 2 Mostly untried prisoners. 3 In use Certified Normal Accommodation at 30 June every year. Source: Ministry of Justice: 020 7210 0638 176 Crime and justice 11.11 Prison population serving sentences: by age and offence 1,2 England and Wales Numbers Age in years 15 - 17 18 - 20 21 - 24 25 - 29 30 - 39 40 - 49 50 - 59 60 and over Total At 30 June 2002 Offences Males Total 1 986 5 821 9 722 10 196 15 415 6 630 2 832 1 365 53 967 Violence against the person 336 1 187 1 942 1 937 3 490 1 769 749 267 11 678 Sexual offences 58 167 262 406 1 347 1 241 996 794 5 270 Burglar y 396 1 130 2 159 2 331 2 379 448 58 15 8 917 Robber y 503 1 285 1 647 1 390 1 865 443 66 10 7 208 Theft, handling, fraud and forger y 302 570 1 055 1 105 1 416 480 213 62 5 203 Dr ugs offences 43 431 1 255 1 763 3 142 1 496 495 129 8 754 Other offences 275 875 1 195 1 103 1 555 640 205 73 5 921 Offences not known 72 174 207 162 222 113 50 15 1 016 Females Total 103 356 596 662 1 030 439 134 19 3 339 Violence against the person 27 67 73 85 163 84 33 6 538 Sexual offences - 1 - 1 11 6 3 1 23 Burglar y 9 37 58 54 68 12 1 - 239 Robber y 19 63 89 65 60 14 3 1 314 Theft, handling, fraud and forger y 22 56 103 139 168 68 20 4 581 Dr ugs offences 8 94 206 256 474 216 60 6 1 319 Other offences 12 32 52 50 73 34 9 1 262 Offences not known 6 7 16 13 13 5 4 - 63 At 30 June 2003 Offences Males Total 1 724 5 740 10 112 10 441 16 304 7 252 2 975 1 413 55 962 Violence against the person 310 1 257 2 112 2 068 3 733 1 932 780 290 12 482 Sexual offences 42 183 310 390 1 376 1 353 1 023 838 5 514 Burglar y 289 919 2 003 2 204 2 555 527 71 11 8 579 Robber y 436 1 370 1 910 1 546 2 022 514 69 12 7 879 Theft, handling, fraud and forger y 291 543 1 020 1 060 1 437 472 201 45 5 069 Dr ugs offences 43 452 1 256 1 791 3 215 1 579 528 127 8 993 Other offences 271 884 1 329 1 218 1 760 787 263 69 6 581 Offences not known 42 133 172 164 205 89 40 21 865 Females Total 57 305 670 702 1 100 492 123 28 3 477 Violence against the person 10 61 91 66 155 82 32 7 506 Sexual offences - - 2 1 11 7 3 2 26 Burglar y 1 24 64 60 77 12 2 - 240 Robber y 21 60 105 100 93 24 4 - 407 Theft, handling, fraud and forger y 10 56 117 128 199 70 18 11 609 Dr ugs offences 6 73 226 271 453 253 54 8 1 343 Other offences 7 27 58 66 108 39 6 - 311 Offences not known 2 3 8 10 5 4 4 - 36 At 30 June 2004 Offences Males Total 1 706 5 585 10 095 10 738 17 021 7 858 3 013 1 508 57 523 Violence against the person 326 1 353 2 247 2 272 3 965 2 107 799 304 13 373 Sexual offences 55 193 329 424 1 433 1 416 1 030 865 5 747 Burglar y 242 855 1 807 2 141 2 662 608 71 11 8 397 Robber y 449 1 254 1 865 1 691 2 127 583 70 17 8 056 Theft, handling, fraud and forger y 272 502 903 1 045 1 479 573 180 63 5 017 Dr ugs offences 51 471 1 383 1 789 3 258 1 615 537 150 9 256 Other offences 286 848 1 390 1 249 1 895 868 284 87 6 908 Offences not known 25 108 171 126 202 87 41 10 769 Females Total 58 300 632 727 1 056 507 152 20 3 453 Violence against the person 15 70 98 89 192 95 36 9 603 Sexual offences - - 3 3 8 7 4 2 27 Burglar y 6 19 59 83 56 22 3 - 247 Robber y 8 65 93 90 114 20 2 - 392 Theft, handling, fraud and forger y 11 28 100 140 171 67 25 1 543 Dr ugs offences 6 78 197 245 392 246 65 6 1 235 Other offences 11 37 75 72 108 44 13 2 361 Offences not known 2 3 8 7 15 7 4 - 46 177 Crime and justice 11.11 Prison population serving sentences: by age and offence 1,2 England and Wales continued Numbers Age in years 15 - 17 18 - 20 21 - 24 25 - 29 30 - 39 40 - 49 50 - 59 60 and over Total At 30 June 2005 Offences Males Total 1 782 5 595 9 937 10 969 16 843 8 731 3 256 1 594 58 707 Violence against the person 366 1 493 2 553 2 553 4 015 2 402 840 319 14 541 Sexual offences 65 186 397 505 1 436 1 552 1 084 922 6 147 Burglar y 285 719 1 559 1 947 2 570 669 78 17 7 844 Robber y 422 1 307 1 819 1 705 2 035 649 83 15 8 035 Theft, handling, fraud and forger y 240 433 858 1 074 1 449 650 238 55 4 997 Dr ugs offences 76 491 1 332 1 834 3 263 1 741 544 148 9 429 Other offences 310 870 1 306 1 245 1 902 987 360 99 7 079 Offences not known 18 96 113 106 173 81 29 19 635 Females Total 55 269 614 680 1 073 585 179 24 3 479 Violence against the person 23 68 109 85 190 114 40 9 638 Sexual offences - 2 3 4 12 8 7 3 39 Burglar y 4 18 50 62 79 23 3 - 239 Robber y 16 59 61 82 102 20 3 - 343 Theft, handling, fraud and forger y 4 35 105 119 202 88 27 3 583 Dr ugs offences 3 54 195 255 366 268 84 9 1 234 Other offences 5 30 84 68 117 56 14 - 374 Offences not known - 3 7 5 5 8 1 - 29 At 30 June 2006 Offences Males Total 1 814 5 716 9 612 11 349 16 828 9 349 3 511 1 719 59 898 Violence against the person 381 1 563 2 616 2 977 4 109 2 609 935 348 15 537 Sexual offences 67 213 452 560 1 497 1 683 1 118 971 6 561 Burglar y 275 707 1 363 1 838 2 554 715 97 15 7 563 Robber y 486 1 413 1 739 1 674 1 975 706 91 16 8 100 Theft, handling, fraud and forger y 200 451 830 1 093 1 598 707 214 54 5 147 Dr ugs offences 68 492 1 232 1 913 3 153 1 829 623 174 9 484 Other offences 327 835 1 326 1 231 1 838 1 040 406 129 7 129 Offences not known 12 43 55 64 105 60 28 10 378 Females Total 50 271 551 707 1 094 604 189 39 3 506 Violence against the person 11 75 111 101 205 118 48 9 678 Sexual offences 1 3 2 2 8 13 5 3 37 Burglar y 7 13 39 63 80 24 2 - 228 Robber y 17 48 67 76 86 18 2 - 315 Theft, handling, fraud and forger y 3 30 97 171 232 106 24 7 671 Dr ugs offences 4 62 158 217 354 253 88 17 1 163 Other offences 7 36 61 72 120 67 19 3 385 Offences not known 1 5 5 4 9 5 1 - 30 At 30 June 2007 Offences Males Total 1 827 6 354 9 860 11 653 16 606 10 092 3 823 1 973 62 188 Violence against the person 402 1 772 2 927 3 183 4 337 2 846 1 063 399 16 929 Sexual offences 73 276 487 675 1 555 1 909 1 202 1 112 7 287 Burglar y 281 817 1 334 1 865 2 492 812 109 13 7 723 Robber y 495 1 558 1 855 1 716 1 928 774 96 14 8 437 Theft, handling, fraud and forger y 194 426 677 1 044 1 478 711 246 67 4 844 Dr ugs offences 71 546 1 285 1 858 3 002 1 908 689 210 9 569 Other offences 294 908 1 237 1 242 1 731 1 087 401 152 7 051 Offences not known 17 51 59 69 83 47 18 5 348 Females Total 56 280 475 662 1 011 610 202 49 3 345 Violence against the person 20 99 113 111 170 117 47 11 687 Sexual offences - 1 3 7 16 15 4 2 48 Burglar y 2 11 28 56 76 23 1 - 197 Robber y 13 54 53 78 82 27 2 1 311 Theft, handling, fraud and forger y 7 29 68 128 211 111 37 10 601 Dr ugs offences 3 42 124 201 335 230 90 19 1 044 Other offences 9 45 75 76 115 77 20 6 423 Offences not known 2 - 10 5 6 10 2 - 35 1 The data presented in this table are drawn from administrative IT systems. Where figures in the table have been rounded to the nearest whole number, the rounded components do not always add to the totals, which are calcu- lated and rounded independently. Reconciliation exercises with published Home Office figures may demonstrate differences due to rounded compo- nents. A programme of wor k is currently being undertaken to audit the quality of the data and to identify prior ities for improvements. 2 Excludes persons committed in default of payment of a fine. Source: Ministry of Justice: 020 7210 8500 178 Crime and justice 11.12 Expenditure on prisonsEngland and Wales Operating cost and total capital employed, years ending 31 March £ thousand 2001 2002 2003 2004 2005 2006 2007 /02 /03 /04 /05 /06 /07 /08 Expenditure Staff costs KWUV 1 138 400 1 259 502 1 364 193 1 439 882 1 498 446 1 586 126 1 646 757 Accommodation costs KXCO 193 100 200 000 194 000 185 400 150 270 138 322 144 170 Other operating costs KXCP 706 100 756 198 653 007 694 618 528 529 498 913 511 688 Depreciation KXCQ 128 100 132 600 129 600 143 800 7 974 11 044 12 135 Cost of capital KXCR 284 900 292 700 164 400 170 300 279 905 −610 Total expenditure KXCS 2 450 600 2 641 000 2 505 200 2 634 000 2 185 498 2 235 310 2 314 140 Income Contr ibutions from industries KXCT −11 600 −10 100 −11 000 −10 600 −11 154 −7 698 −7 079 Other operating income KXCU −13 100 −15 500 −21 000 −38 400 −41 323 −45 411 −43 566 Income from Other Government Departments1 GDPM −180 600 −210 200 −368 000 −381 500 −302 549 −245 917 −205 524 Total income KXCV −205 300 −235 800 −400 000 −430 500 −355 026 −299 026 −256 169 Net operating costs KXCW 2 245 300 2 405 200 2 105 200 2 203 500 1 830 472 1 936 284 2 057 971 Total capital employed KXCX 4 859 600 4 821 500 5 228 600 5 116 700 5 716 −52 207 −42 577 1 Income from the Youth Justice Board (a non-departmental public body of the Home Office) for the provision of juvenile custody within the Prison Ser- vice, Depar tment for Education and Skills for the provision of education ser- vices and Department of Health and PCTs for the provision of healthcare. Source: NOMS Agency: 020 7217 5213 179 Crime and justice 11.13 Crimes and offences recorded by the police: by crime group 1 Scotland Thousands 1998 1999 2000 2001 2002 2003 20044 2005 2006 2007 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Non-sexual crimes of violence against the person BEBC 19.8 15.8 14.9 15.7 16.1 15.1 14.7 13.8 14.1 12.9 Ser ious assault, etc2 KAFS 6.7 7.3 6.9 7.5 7.6 7.5 7.8 7.2 7.5 6.9 Robber y KAFU 5.0 4.9 4.3 4.6 4.6 4.2 3.7 3.6 3.6 3.1 Other KAFV 3.0 3.6 3.6 3.5 3.8 3.5 3.2 3.0 3.0 3.0 Crimes involving indecency BEBD 7.1 5.8 5.8 6.0 6.6 6.8 7.3 6.6 6.8 6.6 Rape and attempted rape1 OXBQ 0.8 0.8 0.7 0.8 0.9 1.0 1.1 1.2 1.1 1.1 Indecent assault1 OXBR 1.3 1.1 1.0 1.2 1.4 1.4 1.5 1.5 1.7 1.7 Lewd and indecent behaviour KAFY 2.9 2.3 2.4 2.4 2.8 2.6 2.8 2.7 2.6 2.6 Other KAFZ 2.1 1.7 1.6 1.6 1.6 1.7 1.9 1.2 1.4 1.3 Crimes involving dishonesty BEBE 276.9 275.6 253.3 242.8 224.8 211.0 210.4 187.8 183.7 166.7 Housebreaking3 KAGB 55.8 52.9 47.7 45.5 40.6 36.4 35.0 31.3 30.6 25.4 Theft by opening lockfast places KAGC 12.1 11.6 10.6 8.2 7.8 7.4 7.9 8.3 7.4 6.4 Theft from a motor vehicle (OLP) EPI4 39.5 38.0 32.0 32.7 30.4 26.8 20.4 16.5 16.1 15.2 Theft of a motor vehicle KAGD 29.3 28.9 25.6 23.1 20.9 17.6 15.6 14.0 15.0 12.1 Shoplifting KAGE 30.8 32.1 32.3 31.6 28.3 27.9 28.5 28.2 28.8 29.2 Other theft KAGF 80.1 81.2 76.6 76.0 73.2 72.5 77.6 72.1 70.2 64.6 Fr aud KAGG 18.4 20.6 20.0 17.4 15.8 15.3 18.3 11.1 9.3 8.4 Other KAGH 11.1 10.3 8.4 8.4 7.9 7.0 7.1 6.3 6.4 5.3 Fire-raising, vandalism, etc BEBF 77.6 81.2 85.8 95.0 97.7 103.8 128.5 127.9 129.7 118.0 Fire-raising KAGJ 2.5 2.3 2.4 2.9 3.8 4.2 4.7 4.9 5.0 4.6 Vandalism, etc KAGK 75.2 78.9 83.4 92.0 93.8 99.6 123.9 123.0 124.8 113.4 Other crimes BEBG 52.6 57.1 58.9 66.8 73.2 77.5 77.2 81.9 84.9 81.3 Cr imes against public justice KAGM 17.7 18.4 18.6 20.9 22.7 25.8 25.6 27.7 32.1 31.4 Handling offensive weapons2 KAFT 7.1 8.1 8.1 9.0 9.4 9.3 9.5 9.6 10.1 9.0 Dr ugs KAGN 32.8 30.4 32.1 36.8 40.9 42.3 41.8 44.2 42.4 40.7 Other KAGO 0.1 0.1 0.1 0.1 0.2 0.2 0.2 0.3 0.4 0.3 Total crimes KAGQ 434.1 435.5 418.5 426.2 418.3 414.2 438.1 417.8 419.3 385.5 Miscellaneous offences BEBH 153.2 151.9 154.8 163.4 169.6 181.0 214.3 219.5 232.4 224.3 Minor assault KAGS 51.6 54.6 54.1 55.4 55.0 57.4 73.7 72.3 78.2 73.5 Breach of the peace KAGT 71.7 71.3 70.2 72.7 74.7 77.9 90.0 89.6 93.4 90.3 Dr unkenness KAGU 8.4 7.6 7.8 7.8 7.3 7.5 7.2 7.0 6.7 6.7 Other KAGV 21.6 18.4 22.8 27.6 32.6 38.2 43.4 50.6 54.2 53.7 Motor vehicle offences BEBI 367.2 347.5 340.1 362.5 350.1 435.0 424.3 380.5 375.1 347.7 Dangerous and careless driving KAGX 15.8 13.2 12.0 12.2 12.7 12.0 13.1 13.0 13.6 13.0 Dr unk dr iving KAGY 10.6 10.9 10.8 11.5 11.8 11.6 11.1 11.3 11.7 10.7 Speeding KAGZ 119.7 123.4 113.9 126.8 117.2 199.2 210.1 167.7 162.9 137.2 Unlawful use of a motor vehicle KAHA 76.0 80.7 84.3 94.6 99.5 99.5 76.7 75.1 73.1 73.7 Vehicle defect offences KAHB 63.8 48.0 46.8 45.5 46.5 37.2 27.0 23.9 21.2 22.3 Other KAHC 81.3 71.2 73.3 77.9 66.9 75.4 86.3 89.4 92.6 90.8 Total offences KAHD 520.5 499.4 496.1 532.0 524.1 615.9 638.6 600.0 607.4 571.9 Total crimes and offences BEBB 954.6 934.9 913.5 952.4 937.8 1 030.1 1 076.7 1 017.7 1 026.6 957.4 1 See chapter text. 2 Includes murder, attempted murder, culpable homicide and serious assault. 3 Includes dwellings, non-dwellings and other premises. 4 The introduction of the Scottish Crime Recording Standard on 1 April 2004 has increased the number of minor crimes recorded, such as minor crimes of theft, vandalism, petty assault and breach of the peace. Source: The Scottish Government Justice Department: 0131 244 2635 180 Crime and justice 11.14 Persons with a charge proved: by crime group 1 Scotland Numbers 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 20073 /98 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Non-sexual crimes of violence KEHC 2 039 2 000 2 003 1 976 2 092 2 381 2 596 2 427 2 455 2 441 2 723 Homicide KEHD 104 92 105 100 103 99 131 143 111 118 129 Ser ious assault, etc KEHE 1 039 1 036 1 053 1 089 1 171 1 360 1 475 1 374 1 560 1 480 1 721 Robber y KEHG 666 652 659 603 627 682 689 610 509 527 539 Other violence KEHH 230 220 186 184 191 240 301 300 275 316 334 Cr imes of indecency KEHI 1 329 1 280 790 633 614 562 666 810 853 862 785 Rape and attempted rape HFVU 55 58 48 52 67 55 58 70 61 58 48 Indecent assault KEHJ 91 83 84 60 48 65 93 87 84 81 116 Lewd and libidinous practices KEHK 343 320 302 256 298 273 297 321 319 312 247 Other indecency KEHL 840 819 356 265 201 169 218 332 389 411 374 Cr imes of dishonesty KEHM 25 272 24 726 22 652 20 571 21 536 21 700 19 887 19 665 18 045 18 447 17 736 Housebreaking KEHN 3 174 3 071 2 860 2 676 2 672 2 752 2 508 2 373 2 074 2 025 1 868 Theft by opening lockfast places KEHO 1 940 1 770 1 614 1 504 1 478 1 448 1 288 1 194 951 911 942 Theft of motor vehicle KEHP 2 006 1 882 1 536 1 426 1 386 1 486 1 268 1 099 985 1 028 932 Shoplifting KEHQ 7 313 7 559 7 753 7 345 8 366 8 826 8 123 8 427 8 162 8 548 8 407 Other theft KEHR 5 866 5 796 5 026 4 303 4 234 3 783 3 521 3 551 3 187 3 303 3 138 Fr aud KEHS 1 992 1 920 1 595 1 448 1 479 1 459 1 444 1 355 1 245 1 180 1 165 Other dishonesty KEHT 2 981 2 728 2 268 1 869 1 921 1 946 1 735 1 666 1 441 1 452 1 284 Fire-raising, vandalism, etc KEHU 4 871 4 591 3 979 3 942 4 051 4 212 4 759 5 024 4 998 5 437 5 350 Fire-raising KEHV 112 125 102 109 125 147 169 192 192 251 223 Vandalism, etc KEHW 4 759 4 466 3 877 3 833 3 926 4 065 4 590 4 832 4 806 5 186 5 127 Other crime KEHX 14 551 13 698 12 888 12 558 13 823 13 954 15 453 16 800 16 968 19 833 20 191 Cr ime against public justice KFBK 5 096 4 776 4 589 4 929 5 257 5 048 5 290 5 767 5 753 7 206 8 028 Handling offensive weapons KEHF 2 173 2 033 2 118 2 340 2 633 2 771 2 875 3 447 3 500 3 550 3 418 Dr ugs offences KFBL 7 236 6 861 6 158 5 279 5 913 6 111 7 258 7 555 7 606 8 874 8 477 Other KFBM 46 28 23 10 20 24 30 31 109 203 268 Total crimes KEHB 48 062 46 295 42 312 39 680 42 116 42 809 43 361 44 726 43 319 47 020 46 785 Miscellaneous offences KEHZ 42 051 35 024 29 505 28 651 30 152 32 062 34 536 37 492 39 679 42 278 41 143 Common assault KEIA 12 441 11 677 10 749 10 270 10 823 11 745 12 317 13 574 14 427 15 441 15 460 Breach of the peace KEIB 19 355 17 156 14 023 13 031 13 950 14 384 15 050 16 172 16 901 18 111 17 410 Dr unkenness KEIC 937 626 454 430 374 370 418 311 293 261 235 Other miscellaneous offences KEID 9 318 5 565 4 279 4 920 5 005 5 563 6 751 7 435 8 058 8 465 8 038 Motor vehicle offences KEIE 55 456 51 638 51 603 40 264 44 821 47 956 50 622 47 515 45 203 45 065 45 148 Dangerous and careless driving KEIF 4 577 3 764 3 431 2 561 3 319 3 628 4 118 3 810 3 621 3 773 3 963 Dr unk dr iving KEIG 8 173 7 290 7 366 6 265 6 538 9 508 8 158 8 001 7 970 8 066 7 812 Speeding2 KEIH 12 220 12 971 15 293 9 427 9 988 9 832 12 700 13 546 12 273 13 434 14 114 Unlawful use of vehicle KEII 20 052 18 662 16 950 15 987 18 553 19 192 19 563 16 696 14 711 13 449 13 569 Vehicle defect offences KEIJ 3 198 2 470 2 075 1 302 1 252 1 510 1 859 1 791 1 653 1 709 2 298 Other motor vehicle offences KEIK 7 236 6 481 6 488 4 722 5 171 4 286 4 224 3 671 4 975 4 634 3 392 Total offences KEHY 101 272 90 879 85 792 73 526 79 482 84 963 90 253 85 007 84 882 87 343 86 291 Total crimes and offences KEHA 149 334 137 174 128 104 113 206 121 598 127 772 133 614 129 733 128 201 134 363 133 076 1 See chapter text. Data as at 28 April 2009. 2 Includes motorway and clearway offences. 3 Figures for 2007-08 for some categories dealt with by the High Court - includ- ing homicide, rape and major drug cases - may be underestimated slightly due to late recording of disposals on SCRO. Source: Scottish Government Justice Department: 0131 244 2229 11.15 Persons with a charge proved: by cour t procedure 1,2 Scotland Numbers 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 /98 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Cour t procedure High Court3 KEIQ 1 105 1 043 1 174 1 092 1 125 1 194 1 217 974 882 858 804 Sher iff Cour t KEIU 78 668 74 484 70 541 65 714 72 021 80 117 80 155 80 866 79 956 85 185 85 096 Distr ict Cour t4,5 KEIV 57 388 50 784 46 052 38 422 38 484 41 516 47 144 47 891 47 358 48 319 47 176 Stipendiar y Magistrate Court4 KEIW 8 406 6 646 5 652 3 365 5 455 .. .. .. .. .. .. Total called to court6 KEIZ 145 569 132 957 123 420 108 595 117 089 122 827 128 519 129 733 128 201 134 363 133 076 1 See chapter text. 2 All figures are now repor ted as financial years. 3 Including cases remitted to the High Court from the Sheriff Court. Figure for 2007/08 may be an underestimate due to late recording of disposals on the Scottish Criminal History System. 4 Distr ict Cour t figures from 2002/03 include the Stipendiary Magistrate Court. 5 Figure for 2007/08 includes Justice of the Peace courts in Lothian & Borders from 10 March 2008. 6 Includes court type not known. Source: Scottish Government Justice Department: 0131 244 2229 181 Crime and justice 11.16 Persons with charge proved: by main penalty 1,2 Scotland Numbers 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 /98 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Main penalty Restr iction of liberty order3 ZBRE .. 106 196 152 166 656 879 1 097 1 136 1 179 1 151 Super vised attendance order4 ZBRF 56 31 37 5 11 13 18 33 99 112 129 Dr ug treatment and testing order5 OEWA .. .. 5 117 286 409 610 713 758 865 817 Absolute discharge KEXA 508 403 368 364 415 385 435 403 401 411 427 Admonition or caution KEXB 14 367 13 442 12 188 11 203 11 702 12 360 12 934 13 744 14 175 15 967 15 955 Probation KEXC 6 278 6 824 6 542 6 654 7 708 8 451 8 137 8 623 8 785 8 612 8 984 Remit to children’s hear ing KEXD 208 176 120 116 158 230 196 221 260 313 259 Community service order KEXE 5 237 4 811 4 254 4 272 4 323 4 719 4 298 4 849 5 195 5 305 5 593 Fine KEXF 102 617 91 393 84 255 70 683 76 217 78 541 84 327 83 237 80 723 83 445 81 742 Compensation order KEXG 1 288 1 238 1 151 1 076 1 142 1 347 1 767 1 695 1 471 1 375 1 313 Insanity, hospital, guardianship order KYAN 154 125 136 116 103 101 129 95 115 65 20 Pr ison KEXI 11 028 10 635 10 609 10 430 11 437 12 427 11 960 12 307 12 153 13 449 13 530 Young offenders’ institution KEXJ 3 804 3 749 3 546 3 394 3 407 3 162 2 801 2 685 2 902 3 241 3 130 Detention of child KEXM 24 24 13 13 14 25 24 20 24 24 26 Total persons with charge proved6 KEXO 145 569 132 957 123 420 108 595 117 089 122 827 128 549 129 733 128 201 134 363 133 076 1 See chapter text. 2 All figures are now repor ted as financial years. 3 A community sentence introduced by Section 5 of the Crime and Punish- ment (Scotland) Act 1995 and available on a pilot basis to 3 Scottish sheriff cour ts since August 1998. This sentence was made available to High Cour t, Sher iff Cour ts and Stipendiary Magistrates court from 1 May 2002. 4 The pilot scheme under the Crime and Punishment (S) Act 1995, where fines for 16 & 17 year olds were replaced by super vised attendance orders, was discontinued in December 1999. The majority of supervised atten- dance orders recorded from the year 2000-01 onwards were disposals re- lating to the breach of an existing order. 5 Drug treatment and testing orders are new measures made available on a pilot basis to the High Court and to Sheriff Courts for residents in Glasgow (from October 1999), Fife (from July 2000) and Aberdeen/Aberdeenshire (from De- cember 2001). They are now available to all Sheriff courts and the High Court. 6 Totals from 2002/03 include a small number of cases where penalty is un- known. Source: Scottish Government Justice Department: 0131 244 2229 11.17 Persons with charge proved 1: by age and sex Scotland Numbers 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 /98 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Males KEWA 124 691 114 884 106 654 92 919 100 874 104 312 107 932 108 460 107 801 113 465 112 349 Under 16 KEWB 134 112 75 56 80 129 96 107 133 121 155 16 to 20 KEWC 29 163 27 399 24 671 21 973 23 701 23 948 23 454 23 098 24 051 25 513 24 254 21 to 30 KEWD 48 751 43 599 40 048 35 251 38 441 39 405 40 053 39 336 38 078 40 389 41 076 Over 30 KEWE 45 643 42 857 41 047 34 957 38 362 40 811 44 324 45 913 45 536 47 440 46 864 Age not known KEWF 1 000 917 813 682 290 19 5 6 3 2 − Females KEWG 20 158 17 405 16 188 15 302 15 871 18 160 20 120 20 775 20 039 20 598 20 477 Under 16 KEWH 14 2 5 10 4 5 17 18 8 9 3 16 to 20 KEWI 3 314 3 252 3 089 2 768 2 742 2 840 2 927 2 891 2 929 3 255 3 287 21 to 30 KEWJ 8 004 6 872 6 219 5 833 6 200 6 843 7 494 7 652 7 387 7 397 7 355 Over 30 KEWK 8 411 6 971 6 614 6 448 6 854 8 468 9 680 10 214 9 715 9 935 9 832 Age not known KEWL 415 308 261 243 71 4 2 − − 2 − Males and Females KEWM 144 851 132 298 122 858 108 279 116 768 122 484 128 068 129 253 127 848 134 069 132 835 Under 16 KEWN 148 114 80 66 84 134 113 125 141 130 158 16 to 20 KEWO 32 477 30 652 27 761 24 746 26 444 26 790 26 381 25 989 26 981 28 768 27 541 21 to 30 KEWP 56 757 50 473 46 272 41 094 44 652 46 252 47 556 46 993 45 468 47 786 48 434 Over 30 KEWQ 54 054 49 829 47 665 41 437 45 226 49 285 54 011 56 140 55 255 57 381 56 702 Age not known KEWR 1 415 1 230 1 080 936 363 23 7 6 3 4 − Companies KEWS 718 659 562 316 320 343 451 480 353 294 241 Total persons with charge proved2 KEWT 145 569 132 957 123 420 108 595 117 089 122 827 128 519 129 733 128 201 134 363 133 076 1 See chapter text. 2 Includes sex unknown. Source: Scottish Government Justice Department: 0131 244 2229 182 Crime and justice 11.18 Penal establishments: average daily population and receptionsScotland Numbers 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Average daily population Male KEPB 5 830 5 765 5 676 5 929 6 193 6 307 6 447 6 523 6 830 7 005 Female KEPC 199 210 207 257 282 314 332 334 353 371 Total KEPA 6 029 5 975 5 883 6 186 6 475 6 621 6 779 6 857 7 183 7 376 Analysis by type of custody Remand KEPD 971 976 881 1 019 1 247 1 246 1 216 1 242 1 567 1 560 Persons under sentence: total KEPE 5 056 4 997 5 001 5 165 5 226 5 375 5 561 5 614 5 615 5 815 Adult prisoners KEPF 4 347 4 317 4 346 4 537 4 624 4 802 5 001 4 989 4 970 5 130 Young offenders KEPI 708 679 655 628 601 573 560 625 645 685 Persons recalled from super vision/licence1 KEPN 78 100 145 202 250 310 356 400 519 614 Others1 KEPO 21 28 36 37 6 6 5 1 − − Persons sentenced by cour t mar tial1 KEPP − 2 − − − − 1 − − − Civil prisoners1 KEPQ 1 1 1 1 2 − 1 1 1 1 Receptions to penal establishments Remand KEPR 15 713 14 626 14 062 15 725 19 198 18 963 18 892 19 593 23 181 22 491 Male KEPS 14 527 13 450 13 042 14 402 17 455 17 111 17 085 17 796 21 129 20 256 Female KEPT 1 186 1 176 1 020 1 323 1 743 1 852 1 807 1 797 2 052 2 235 Persons under sentence: total KEPU 22 376 20 336 19 136 18 953 20 084 19 357 18 584 19 477 20 403 18 227 Male KEPV 20 952 19 125 17 953 17 755 18 779 18 013 17 272 18 161 19 018 17 011 Female KEPW 1 424 1 211 1 183 1 198 1 305 1 344 1 312 1 316 1 385 1 216 Impr isoned: Adults: directly KEPX 9 887 9 217 8 943 9 470 10 571 10 255 10 299 10 746 11 684 11 846 in default of fine2 KEPY 7 907 7 030 6 450 5 882 6 081 6 063 5 404 5 442 5 265 3 208 Sentenced to young offenders’ institution: directly KEQA 2 824 2 582 2 436 2 312 2 207 1 949 1 908 2 170 2 286 2 359 in default of fine2 KEQB 1 606 1 328 1 116 1 109 1 016 825 694 771 698 402 Persons recalled from supervision/licence3 JYYD 152 179 191 180 209 265 279 348 470 412 Persons sentenced by cour t mar tial KEQH 2 3 2 2 3 1 5 − − 1 Civil prisoners2 KEQI 10 17 10 8 11 10 7 4 4 11 1 Persons recalled from supervision/licence and others are included in per- sons under sentence. Persons sentenced by cour t mar tial and civil prison- ers are not included in persons under sentence. 2 Includes in default of compensation orders. 3 Now covers all recalls from supervised release orders. Source: The Scottish Government Justice Department: 0131 244 8740 11.19 Expenditure on penal establishments 1 Scotland Years ended 31 March £ thousand 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 /98 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Depar tmental Expenditure Manpower and Associated Services KPHC 137 890 144 660 170 347 160 242 172 490 168 593 169 784 181 931 200 742 199 854 206 298 Pr isoner and Associated Costs KPHD 16 313 18 891 22 930 23 501 24 652 23 363 51 070 42 767 28 582 41 821 29 408 Capital Expenditure KPHE 22 136 23 697 28 918 24 283 24 955 36 519 34 617 72 812 70 406 81 818 53 564 Gross Expenditure KPHF 176 339 187 248 222 195 208 026 222 097 228 475 255 471 297 510 299 730 323 493 289 270 Less Receipts KPHG 2 810 8 160 6 668 8 380 8 194 3 485 3 298 3 312 2 872 2 178 2 034 Net Departmental Expenditure KPHH 173 529 179 088 215 527 199 646 213 903 224 990 252 173 294 198 296 858 321 315 287 236 Plus Annually Managed Expenditure Capital Charges DSJI .. .. .. .. 31 341 40 432 41 728 48 497 52 840 41 816 59 498 Total Net Expenditure DSNX 173 529 179 088 215 527 199 646 245 244 265 422 293 901 342 695 349 698 363 131 346 734 1 See chapter text. Source: The Scottish Government Justice Department: 0131 244 2225 183 Crime and justice 11.20 Recorded crime statistics: by offence group 1 Nor thern Ireland Thousands Old counting rules New counting rules 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 Violence against the person RVCP 5.2 5.6 5.2 RVCQ 18.5 21.4 21.4 26.1 28.5 29.0 29.3 31.0 31.8 29.6 Sexual offences RVCR 1.7 1.7 1.4 RVCS 1.6 1.3 1.2 1.4 1.5 1.8 1.7 1.7 1.8 1.8 Burglar y RVCT 16.5 16.1 14.3 RVCU 15.5 16.1 15.8 17.1 18.7 16.4 13.4 12.8 11.6 11.7 Robber y RVCV 1.5 1.7 1.7 RVCW 1.4 1.4 1.8 2.2 2.5 2.0 1.5 1.7 1.6 1.1 Theft RVCX 33.5 32.8 29.5 RVCY 35.4 37.0 36.9 41.7 41.9 35.7 31.1 29.5 27.8 24.7 Fr aud and forger y RVCZ 4.9 4.1 3.8 RVDA 6.8 7.9 8.0 8.6 8.8 6.3 5.2 5.1 4.5 2.8 Cr iminal damage RVDB 3.8 4.8 4.7 RVDC 27.7 31.2 32.3 40.0 36.6 32.4 31.4 34.8 36.3 30.9 Offences against the state RVDD 0.3 0.4 0.5 RVDE 0.6 0.7 0.8 1.2 1.8 1.3 1.2 1.3 1.3 1.1 Other notifiable offences RVDF 1.5 1.2 1.1 RVDG 1.7 2.1 1.7 1.4 2.4 3.2 3.3 5.3 4.5 4.7 of which drug offences RVDH 1.4 1.1 1.0 RVDI 1.4 1.7 1.5 1.1 1.9 2.6 2.6 2.9 2.4 2.7 Total RVDR 68.8 68.5 62.2 RVDS 109.1 119.1 119.9 139.8 142.5 128.0 118.1 123.2 121.1 108.5 1 See chapter text. Source: The Police Service of Norther n Ireland 11.21 Persons found guilty at all courts: by offence group 1 Nor thern Ireland Numbers 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Violence against the person KYCT 1 597 1 594 1 596 1 699 1 858 1 621 1 790 1 965 2 012 2 009 2 296 Sexual offences KEVG 184 130 128 90 130 112 84 108 137 136 161 Burglar y KYBW 801 715 647 703 703 496 595 602 620 557 532 Robber y KYBX 161 166 134 129 122 121 152 192 159 135 149 Theft KYBY 2 765 2 596 2 342 1 995 2 111 1 831 1 695 1 803 1 819 1 819 1 728 Fr aud and forger y KYBZ 467 491 426 476 403 398 362 314 359 330 333 Cr iminal damage KYCA 1 076 1 163 1 043 931 1 060 917 957 1 034 1 094 1 168 1 295 Offences against the state KYCB 147 165 198 178 174 158 215 274 252 270 348 Other indictable2 KYCC 899 739 936 943 700 495 453 527 636 722 793 Total indictable3 KYCD 8 097 7 759 7 450 7 144 7 261 6 149 6 303 6 819 7 088 7 146 7 635 Summar y4 KYCE 4 402 4 435 4 062 3 598 3 967 3 735 3 453 3 514 3 622 3 575 3 645 Motor ing5 KYCF 18 177 18 770 15 369 15 782 15 390 14 466 14 344 16 342 17 215 15 534 15 083 All offences KYCG 30 676 30 964 26 881 26 524 26 618 24 350 24 100 26 675 27 925 26 255 26 363 1 See chapter text. 2 1998 and 1999 figures include ’dangerous driving’ (a triable-either-way offence). 3 From 2000, includes ’indictable-only’ motoring offences. 4 Excludes motoring offences. 5 Prior to 2000, includes all motoring offences (except for note 2 above). From 2000, includes summary and triable-either-way motor ing offences. Source: Norther n Ireland Office: 028 9052 7157 11.22 Juveniles found guilty at all courts: 1 by offence group Nor thern Ireland Numbers 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Violence against the person KYCH 75 49 97 73 77 66 82 75 78 146 152 Sexual offences KAHF 4 8 12 12 4 1 6 5 7 9 8 Burglar y KYCI 137 124 108 117 125 73 77 89 66 113 81 Robber y KYCJ 13 18 4 7 15 8 14 10 6 8 11 Theft KYCK 338 334 304 227 254 244 212 173 183 291 202 Fr aud and forger y KYCL 14 11 4 10 2 9 3 7 2 6 7 Cr iminal damage KYCM 121 136 139 102 143 152 132 162 129 241 240 Offences against the state KYCN 6 10 11 12 8 10 20 26 18 19 40 Other indictable2 KYCO 24 10 20 17 10 12 7 19 22 46 44 Total indictable3 KYCP 732 700 699 577 638 575 553 566 511 879 785 Summar y4 KYCQ 182 198 187 163 180 203 194 174 135 296 258 Motor ing5 KYCR 58 57 98 97 82 102 89 94 76 280 230 All offences KYCS 972 955 984 837 900 880 836 834 722 1 455 1 273 1 See chapter text. For the purpose of criminal proceedings, prior to 30 August 2005, a juvenile refers to a person aged 10 years or more but under 17. From 30 August 2005, the youth justice system was extended to include those under the age of 18. The number of juveniles convicted in 2005 and 2006 refers to those aged 10 years or more but under 18. 2 1998 and 1999 figures include ’dangerous driving’. 3 From 2000, includes ’indictable-only’ motoring offences. 4 Excludes motoring offences. 5 Prior to 2000 includes all motoring offences (except for note 2 above). From 2000, includes summary and triable-either-way motor ing offences. Source: Norther n Ireland Office: 028 9052 7157 184 Crime and justice 11.23 Disposals given to those convicted by cour tNor thern Ireland Numbers 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Magistrates court - all offences Pr ison1 KYAO 1 003 989 996 1 278 1 356 1 048 1 107 1 133 1 101 977 1 018 Custody Probation Order1 EOG9 .. .. .. .. .. .. .. 7 7 9 12 Young offenders centre KYAP 443 430 326 243 191 209 288 395 456 416 366 Tr aining school2 KYAQ 147 148 136 13 .. .. .. .. .. .. .. Juvenile Justice Centre order2 OEUX .. .. .. 22 78 72 58 48 50 50 35 Total immediate custody KYAR 1 593 1 567 1 458 1 556 1 625 1 329 1 453 1 583 1 614 1 452 1 431 Pr ison suspended KYAS 1 722 1 506 1 025 1 080 1 247 1 215 1 278 1 407 1 469 1 584 1 692 YOC suspended KYAT 444 461 139 104 93 77 100 201 372 375 335 Attendance centre KYAU 91 66 55 14 20 37 84 91 108 127 132 Probation/super vision3 KYAV 1 134 1 155 1 473 1 246 1 096 1 070 1 005 974 991 977 1 045 Community service order KYAW 591 561 622 678 726 587 643 623 647 628 597 Combination order OEUZ .. .. 38 7 48 24 36 96 78 106 133 Fine4 KYAX 20 614 21 313 17 956 18 076 17 716 16 439 15 968 17 546 18 520 17 231 17 311 Recognizance KYAY 1 203 1 267 1 134 1 089 1 357 810 912 1 091 913 853 693 Conditional discharge KYAZ 1 679 1 597 1 538 1 439 1 286 1 559 1 497 1 526 1 524 1 326 1 093 Absolute discharge KYBA 509 424 303 223 242 209 163 201 183 148 129 Youth conference order5 GGL8 .. .. .. .. .. .. .. .. 21 74 304 Community responsibility order GGL9 .. .. .. .. .. .. .. .. 1 32 71 Reparation order J8FR .. .. .. .. .. .. .. .. .. .. 1 Other KYBC 15 8 123 221 57 61 104 215 190 122 61 Total KYBD 29 595 29 925 25 864 25 733 25 513 23 417 23 243 25 554 26 631 25 035 25 028 Crown cour t - all offences Pr ison1 KYBE 469 475 520 386 521 407 410 238 259 248 318 Custody Probation Order1 EOH2 .. .. .. .. .. .. .. 331 332 370 416 Young offenders centre KYBF 106 111 63 67 32 42 23 51 47 41 38 Tr aining school2 KYBG − 4 2 − .. .. .. .. .. .. .. Juvenile Justice Centre order2 VQEV .. .. − − − − 2 − − − 1 Total immediate custody KYBH 575 590 585 453 553 449 435 620 638 659 773 Pr ison suspended KYBI 253 220 199 185 313 262 220 240 262 260 267 YOC suspended KYBJ 71 60 49 41 48 37 35 50 72 45 42 Attendance centre KYBK − − − − − − 1 − − − 1 Probation/super vision3 KYBL 49 47 70 43 68 48 49 63 93 79 91 Community service order KYBM 54 37 33 24 29 45 25 27 33 31 32 Combination order ZAEP .. .. 13 6 7 5 18 34 33 40 22 Fine4 KYBN 39 40 25 20 40 38 32 49 108 57 51 Recognizance KYBO 7 10 7 − 4 11 12 8 6 9 8 Conditional discharge KYBR 30 31 23 17 38 36 20 24 45 28 33 Absolute discharge KYBS − 1 6 − 3 − 6 1 1 6 4 Youth conference order5 GGM2 .. .. .. .. .. .. .. .. − − 5 Community responsibility order GGM3 .. .. .. .. .. .. .. .. − − − Reparation order J8FS .. .. .. .. .. .. .. .. .. .. − Other KYBU 3 3 7 2 2 2 4 5 3 6 6 Total KYBV 1 081 1 039 1 017 791 1 105 933 857 1 121 1 294 1 220 1 335 1 Custody Probation Orders cannot be separately identified from ’prison’ sentences from 1998 to 2002. Thus during this timeframe, figures for pr ison include custody probation orders. 2 The Juvenile Justice Centre order replaced the training school order from 31st Januar y 1999. 3 Super vision orders were abolished with the introduction of the Criminal Justice (Children) Norther n Ireland Order 1998. 4 From 2000, fine incorporates ’fine plus disqualification’ and ’fine plus penalty points’. 5 Refers to the number of youth conference orders completed. Source: Norther n Ireland Office: 028 9052 7157 185 Crime and justice 11.24 Prisons and Young Offenders CentresNor thern Ireland Receptions and average population Numbers 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Receptions: Reception of untried pr isoners KEOA 2 188 2 284 2 497 2 197 1 922 2 337 2 439 2 440 2 776 3 193 2 929 Reception of sentenced prisoners: Impr isonment under sentence of immediate custody1 KEOB 1 062 949 963 1 001 791 916 1 032 975 966 1 075 1 123 Impr isonment in default of payment of a fine KEOC 1 513 1 530 1 423 1 261 1 090 990 1 143 1 296 1 437 1 569 1 425 Total KEOD 2 575 2 479 2 386 2 262 1 881 1 906 2 175 2 271 2 403 2 644 2 548 Reception into Young Offender Centres: Detention under sentence of immediate custody KEOE 331 347 346 282 252 315 268 287 222 229 247 Detention in default of payment of a fine KEOF 366 385 417 389 303 250 310 351 377 382 299 Total KEOG 697 732 763 671 555 565 578 638 599 611 546 Other receptions2 KEOL 42 70 38 56 58 57 117 106 134 24 38 Daily average population: Unconvicted3 KEON 376 383 377 317 272 347 393 456 450 531 531 Convicted4 KEOP 1 256 1 124 867 751 638 679 767 818 851 902 935 Total KEOM 1 632 1 507 1 244 1 068 910 1 026 1 160 1 274 1 301 1 433 1 466 1 Includes those detained under Section 73 of the Children and Young Per- sons (NI) Act 1968. 2 Non-cr iminal pr isoners including those imprisoned for non-payment of maintenance, non-payment of debt, contempt of court or are being held un- der the terms of an Immigration Act. 3 Prisoners on remand or awaiting trial and prisoners committed by civil process. 4 Includes those sentenced to immediate custody and fine defaulters. Sources: The Norther n Ireland Prison Population in 2007; Nor thern Ireland Office: 028 9052 7534 Crime and Justice Recorded crime statistics Court proceedings and police cautions Expenditure on penal establishments in Scotland 
work_m5nsaaqscvc2re25tlpp3dhgwq	----	EGALITARIAN JUSTICE AND CHOSEN BRUTE TASTE* Knight, C. (2009) Egalitarian justice and valuational judgment. Journal of Moral Philosophy, 6 (4). pp. 482-498. ISSN 1740-4681 http://eprints.gla.ac.uk/49956/ Deposited on: 22 March 2011 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk http://eprints.gla.ac.uk/view/author/3829.html http://eprints.gla.ac.uk/view/journal_volume/Journal_of_Moral_Philosophy.html http://eprints.gla.ac.uk/view/journal_volume/Journal_of_Moral_Philosophy.html Egalitarian Justice and Valuational Judgment CARL KNIGHT* Adam Smith Research Foundation and Department of Politics University of Glasgow Glasgow, UK Contemporary discussions of egalitarian justice have often focused on the issue of expensive taste. G. A. Cohen has recently abandoned the view that all chosen disadvantages are non-compensable, now maintaining that chosen expensive judgmental tastes – those endorsed by valuational judgment – are compensable as it is unreasonable to expect persons not to develop them. But chosen expensive brute taste – the main type of non-compensable expensive taste on the new scheme – cannot be described in such a way that there is a normative difference between it and chosen expensive judgmental taste. As there are related problems with denying compensation for the other kind of expensive taste that might remain non- compensable, Cohen’s position on taste appears to be either implausible or virtually indistinguishable from that of equality of welfare. However, compensation for valuational judgment-based expensive taste might be justified on grounds of responsibility. Keywords: Choice, G. A. Cohen, Equality, Justice, Responsibility, Expensive Taste. I. Introduction Consider the following scenario: 1. (a) Steve holds £10. (b) Harry holds £10. 2. (a) Steve’s taste is such that he would obtain 1 unit of welfare (hereafter: unit) from consuming a hamburger. (b) Steve’s taste is such that he would obtain 10 units from consuming a steak. (c) Harry’s taste is such that he would obtain 10 units from consuming a hamburger. d) Harry’s taste is such that he would obtain 1 unit from consuming a steak. e) No change in the tastes of Steve or Harry is now possible. 3. (a) A hamburger now costs £2. (b) A steak now costs £10. 4. Steve would now prefer to have Harry’s taste. 5. (a) Prior to t (=a point in the past) Steve’s taste was that of Harry’s. (b) Harry has not deliberately cultivated his taste, nor could he ever have eliminated it. (c) Steve deliberately cultivated his present taste at t. Which of these facts is relevant to egalitarian distributive justice? A wealth egalitarian replies that 1 alone is relevant, and that the existing distribution is perfectly just. A welfare egalitarian begs to differ: on her account, 2 and 3 also come into play. She views the distribution as unjust, on the grounds that Steve is only able to secure 10 units with his funds, whereas Harry is able to secure 50 units with his. Steve has expensive taste, in the sense that he is only able to secure below average welfare with average income. The welfare egalitarian views Steve’s expensive taste as a disadvantage that entitles him to compensation. In his highly influential article, ‘What is Equality?’, Ronald Dworkin criticized the welfare egalitarian’s stance on ‘champagne tastes’ as counterintuitive.[1] His favoured theory of equality of resources did not, however, agree with equality of wealth’s stance that 1 is the only relevant fact. Dworkin suggested that 4 is also relevant, for on his scheme those with dispreferred tastes (or ‘cravings’) are entitled to compensation. Another position was proposed in response to Dworkin in G. A. Cohen’s well-known paper ‘On the Currency of Egalitarian Justice’.[2] Cohen urged that compensation for expensive tastes did not appear counterintuitive where those tastes were unchosen; on the contrary, such compensation was mandated by justice. On this account, which may be referred to as equality of opportunity for welfare,[3] 1, 2, 3 and 5 all appear to be relevant. Cohen has recently modified his account, suggesting that some tastes that are chosen are nevertheless compensable.[4] The present article argues that the position that he now wants to occupy either makes distributive decisions on morally arbitrary grounds or comes close to collapsing into equality of welfare. Nevertheless, he does highlight a possible source of injustice – harsh treatment of valuational judgment-based expensive taste – which the equality debate has thus far overlooked.[5] This points to the need for renewed focus on the relationship between principles of distributive justice and the content of responsibility. The paper starts in earnest in section II, which clarifies Cohen’s position on responsibility. Cohen is now clear that responsibility for possessing one’s taste is not itself important; it is rather responsibility for the expense of one’s taste that matters. Section III introduces Cohen’s new distinction between judgmental and brute taste. Here Cohen’s additional condition for compensation for a taste – that it is based upon valuational judgment – is discussed, and the most plausible interpretation of this condition is put forward. In sections IV and V the difficulty of finding cases in which Cohen may reasonably refuse compensation is demonstrated. This difficulty is due to the fact that, on the two available interpretations of Cohen’s account, the non- compensable expensive taste – chosen brute taste – cannot be formulated in such a way that it is morally distinguishable from (compensable) chosen judgmental taste. In section VI one special type of case in which Cohen might refuse to provide compensation is described, and a familiar kind of problem with such a refusal is identified. This puts Cohen’s view uncomfortably close to equality of welfare. Section VII notes that one might bite the bullet at this point, but only at the cost of facing Dworkin’s expensive tastes objection. It is argued in section VIII that a more promising strategy is to account for valuational judgment by construing it as an obstacle to full responsibility. We need not assume that valuational judgment is such an obstacle, but only that it might be. II. Responsibility and Expense In ‘Expensive Taste Rides Again’, Cohen states that he wishes to revise the following first sentence of the ‘flagship statement’ of his earlier essay: ‘I distinguish among expensive tastes according to whether or not their bearer can reasonably be held responsible for them’.[6] Cohen now says that this sentence (together with similar statements in ‘Currency’) is poorly formulated. A suitable reformulation would replace ‘them’ with ‘the fact that her tastes are expensive’. He adds the following: ‘It is, as I made it abundantly clear elsewhere in “Currency,” precisely that fact for which the question of responsibility is crucial’.[7] Without this clarification the first sentence of the flagship statement is at best ambiguous and at worst morally implausible. The original formulation may be read as suggesting that justice distinguishes between responsibility and lack of responsibility for the existence of tastes that now happen to be expensive. Persons are entitled to compensation if they have what Dworkin calls bad preference luck, ‘which is their bad luck in having the preferences that they do because these preferences are expensive’. [8] On this account, the bare fact that Steve chose to generate his taste (fact 5) disqualifies his claim for compensation. But suppose that Steve’s taste was not expensive when he cultivated his taste, and that he could not have predicted that it would become so in the future. He has been unlucky, not in having the taste that he does, but in that his taste has become expensive. He has an unchosen disadvantage (a taste for an expensive food) which would be overlooked by one concerned only with bad preference luck. This possibility suggests that responsibility for holding the taste does not matter in the absence of responsibility for its expensiveness. For this reason Cohen now makes it clear that it is responsibility for the expensiveness of one’s taste that matters.[9] People are entitled to compensation on this account where they have what Dworkin describes as bad price luck, ‘which is bad luck in the high cost of the preferences they have’.[10] This would be a relevant set of facts on such an account: 6. (a) At t a steak cost £2. (b) At t a hamburger cost £2. (c) Steve could not reasonably have been expected to anticipate the rise in price of steaks from t to the present. Cohen believes that it would be unfair to penalize Steve for the unforeseen economic changes that have replaced the favourable circumstances depicted in 6 with the unfavourable circumstances depicted in 3. No transfer would be due if Steve knew such changes were likely to occur but gambled that they would not, or hoped that they would, maybe because he views expense as itself desirable.[11] But this is not the case here. As it is, Steve suffers from a welfare deficit for which he is not relevantly responsible; such deficits are compensable on Cohen’s scheme, and the first element of the reformulation of his flagship statement reflects that. III. Brute Taste and Judgmental Taste The second sentence of Cohen’s original flagship statement reads thus: There are those [tastes] which he [an individual] could not have helped forming and/or could not now unform, and then there are those for which, by contrast, he can be held responsible, because he could have forestalled them and/or because he could now unlearn them.[12] Cohen believes that the failings of this second sentence are more substantial than those of the first. The problem is not merely that his position is poorly expressed: the position itself is at fault. While Cohen still believes that some chosen tastes are non-compensable, he now maintains that others do give rise to valid claims for compensation. The former category are brute tastes, ‘which do not embody judgments of valuation’.[13] Cohen offers the example of ‘my own liking for Diet Coke, which embodies no particular approval of it’.[14] Judgmental tastes, by contrast, ‘are informed by valuational judgment’. Cohen explains his change of stance as follows: I no longer think that the mere fact that people chose to develop and/or could now school themselves out of an expensive judgmental taste means that they should pick up the tab for it, and that is precisely because they did and do identify with it, and therefore cannot reasonably be expected to have not developed it or to rid themselves of it.[15] The moral idea driving the distributive proposal is that some persons are disadvantaged by their identification with certain tastes which turn out to be expensive, since that identification leads them to develop those tastes. Cohen observes that this takes his position even further away from Dworkin’s: So what Dworkin gives as a reason for withholding compensation – the subjects’ approving identification with their expensive tastes – is something that I regard as a reason for offering it, since, where identification is present, it is, standardly, the agents’ very bad luck that a preference with which they strongly identify happens to be expensive, and to expect them to forego or to restrict satisfaction of that preference (because it is expensive) is, therefore, to ask them to accept an alienation from what is deep in them.[16] Cohen’s move should not exactly be to turn Dworkin on his head. One may recall that Dworkin is interested in the presence or absence of identification with taste right now: hence, on his account, fact 4 in the hamburger-and-steak case mentioned at the outset justifies compensation for Steve (given fact 1). Here Cohen, like Dworkin, focuses on present (dis)identification: unfair disadvantage arises ‘where identification is present’. However, we have seen that elsewhere in the same paper he focuses on the history of identification as well: persons who did identify or who do identify with a taste ‘… cannot reasonably be expected to have not developed it or to rid themselves of it’. In other words, present (dis)identification matters for establishing whether it is reasonable to expect an expensive taste to be unlearned, while past (dis)identification matters for the key issue of establishing whether it is reasonable to hold someone accountable for their choice to develop a taste. So why should Cohen maintain that history of identification matters? An answer becomes clear when we consider the case of someone who initially had no identification with an expensive taste, but nevertheless developed it, and subsequently came to identify with it. Cohen has no reason for thinking that it would be unreasonable to ask such a person to bear the cost of their taste whether they can now be rid of it or not, for that cost has arisen directly from a choice that she was not predisposed to make. It is a history of identification that excuses an individual from bearing the cost of their expensive taste; present identification only tells us that an individual who has been so excused cannot be expected to dispose of their taste. IV. Chosen Expensive Brute Taste The discussion of the previous section indicates that the following would be an example of an additional relevant fact on Cohen’s scheme: 7. Prior to and at t, Steve disidentified with the taste he then had and identified with the taste he now has. This embodies my stipulation, given as an interpretation of Cohen, that the (dis)identification must not come after the possession of the taste – it must be what we might call pre(dis)identification. According to Cohen, the presence of this fact diminishes Steve’s liability for his present expensive taste. It shows that, even if Steve is responsible for the fact that the taste he holds is expensive, it would be unreasonable to make him bear its cost.[17] The implications of this revised account are no simple matter. To see them one must first try and establish what exactly a chosen expensive brute taste might look like. This is because they are (with one important exception to be mentioned in section VI) the only kind of expensive taste that Cohen now refuses to provide compensation for, and as such they appear to be the only source of disagreement between Cohen and equality of welfare. I will maintain that, from what little Cohen says about chosen brute taste, it is not clear that they can exist in a form that is differentiated from chosen judgmental taste by any morally significant characteristic. On one of the two available interpretations, Cohen’s account amounts to no more or less than equality of welfare,[18] insofar as it is concerned with welfare;[19] on the other, it amounts to something with (even) less justification. The feature that makes a taste brute in Cohen’s sense is that it ‘does not embody judgments of valuation’. For reasons that should be obvious from the earlier discussion, the kind of judgments of valuation that they do not embody are those that are temporally prior to the taste itself. Steve’s taste for steak does not go from being judgmental to being brute simply because he stops identifying with it some time after he has acquired it, for Cohen’s question of whether Steve could reasonably have been expected to turn down the opportunity to cultivate that taste, given the cost that would impose upon him, can obviously only apply before taste acquisition. The kind of taste we are looking for is one that is chosen and initially not supported by value judgments. How might the origins of Cohen’s own taste for Diet Coke meet both of these criteria? Were Jerry (as I will call this character) brought up to have this taste or hypnotized into having it, it would fail to meet the criterion of being chosen.[20] This would also be the case if his first sip had him hooked, and that sip resulted from, say, a bartending error or lack of alternative beverages. Contrariwise, if Jerry made a deliberate attempt to cultivate that taste it would fail to meet the non-judgmental criterion. That attempt must be based on some kind of value judgment, however sensible or fatuous it may be, for otherwise his behaviour is inexplicable. There are further possibilities that may appear to salvage chosen brute taste. First, suppose that Jerry makes no deliberate attempt to cultivate a taste for Diet Coke and has no preidentification with it, but that he tries it anyway. Perhaps he just wants to see what it tastes like. Or maybe he has decided to live his life as a ‘free spirit’, which right now means trying some Diet Coke for no particular reason. Either way, Jerry’s first sip results in taste formation. For the moment, let us grant that the taste that is formed in a case like this is brute. Although preidentification with taste is absent, other kinds of relevant value judgments are present. It seems to me that Jerry could only have not taken his sip by acting in a fashion that contradicted his value judgment that he ought to find out what Diet Coke tastes like, or that he ought to drink it just because that’s what he wants to do. Such contradiction is not directly related to taste. It is, however, obviously an incident of self-infliction of cost. Were it identical in every regard except the structure of its relation to taste, Cohen would say that it could not reasonably be expected of Jerry. If this kind of self-infliction is unreasonable where the judgment endorses the taste I do not see any reason why it is less unreasonable where the judgment endorses something else that can only be realized by performing an action that may or will result in taste formation. There is a slight causal difference but no moral difference: in both types of case we require individuals ‘to accept an alienation from what is deep in them’ if they are not to suffer a welfare deficit. On this natural reading of Cohen, he appears to base compensation on a morally arbitrary distinction. V. An Alternative Interpretation Suppose, then, that we take a more liberal reading. Here we describe a taste such as Jerry’s – one that is not preidentified with, but that could only have been avoided at the cost of violating otherwise independent value judgments – as an indirect judgmental taste. The resulting broad sense of judgmental taste, encompassing both indirect judgmental taste and direct judgmental taste (instances of which are preidentified with), is somewhat strained as a construal of Cohen, given that it includes ‘taste that does not track a judgment of the value of its object’.[21] But it – and the corresponding narrow construal of brute taste – sits far more comfortably with Cohen’s moral argument that it is unreasonable to expect persons to contradict their value judgments. In this case it looks like there is nothing morally arbitrary about compensating for chosen judgmental taste but not for chosen brute taste. But the revised position also radically limits the occurrence of chosen brute taste (that is, a chosen taste that could have been avoided at no self-inflicted cost). Usually a taste must be either unchosen or endorsed, somewhere along the line, by valuational judgment; in the odd case where it is both unendorsed and, in some sense, chosen, compensation is still appropriate. This is shown in two more kinds of cases. We might suppose that Jerry has no preidentification with Diet Coke but that he is a ‘diceman’ – one who makes his choices in a random fashion – and, when ordering his drinks, Diet Coke’s number comes up. Or we might suppose that, while Jerry’s action might look like it could be explained as either experimental or wilfully random, he is simply acting on impulse. In each case we again suppose that the first sip results in taste formation. When presented with cases like Diceman Jerry it is tempting to think that chosen narrow brute taste might ride in on the back of uncertainty about outcomes. The unexpected results of random but deliberate action may appear to be chosen without there having been any question of identification. It is therefore important to note that the actual likelihood of the taste arising from the action, and the individual’s perception of this likelihood, are quite irrelevant to the question of whether the taste is (indirectly) judgmental. All that matters is that the individual could not have performed otherwise without contradicting his own judgment. Even if the individual thought there was no possibility of taste formation, and it was in fact a million to one shot, that taste would be fully judgmental on account of the clear causal link between it, the action, and the endorsement of the action. Both this point and the more general point about the infrequency with which chosen narrow brute taste can occur is illustrated well in the Diceman Jerry case. Diceman Jerry’s taste is, I will allow, chosen and not itself preidentified with. But the endorsement of running one’s life on the roll of a dice is clearly a value judgment. That preidentification with randomizing is, in this instance, bound up with the taste. Even though the link between Diceman Jerry’s taste and his judgment is indirect and fortuitous, his taste is judgmental, for he could have declined the option of drinking Diet Coke only by alienating himself from his own judgment. This causal relationship is all that is required to show that the taste is not brute in the narrow sense. The final, impulsive case faces the initial worry that no taste formed in this way could be chosen. But I am willing to grant, for the sake of argument, that choice may be present here. This issue aside, impulsive action appears to present the best opportunity for non-compensable chosen brute taste to arise. Even so, Jerry’s behaviour is presumably explainable in one of two ways, and neither of these will do. Firstly, there may be a value judgment even further back in the causal chain than in the earlier two cases. This judgment may direct Jerry to act spontaneously and without regard to consequences. This case is not relevantly different from that of the self-defined free spirit. As before, the taste can be treated as non-compensable only if we demand that Jerry alienate himself from his judgment. On the alternative reading of Cohen, the taste is, again, not brute. Secondly, and more interestingly, Jerry may be following no value judgment whatsoever. He may by nature be an extremely impetuous person. It may have never crossed his mind that acting in a more considered way is a viable option. This is the one kind of case where the more liberal reading of Cohen can, like the more straightforward construal, identify chosen brute (i.e. unendorsed) taste. But the common denial of compensation in both instances is morally arbitrary. If it is unreasonable to expect someone to act against their valuational judgment, it is, if anything, more unreasonable to expect someone to act against their natural temperament, where no reasons for such behavioural modification have even been entertained. The complete absence of valuational judgment makes it inappropriate to punish (or reward) in this case as one might were a full moral agent involved. Even if we allow that there is choice, there is not responsibility.[22] VI. Costlessly Removable Expensive Taste The basic problem we have so far encountered is that one can generally choose to undergo a course of action that may inadvertently result in the acquisition of a taste only where one holds value judgments that recommend that course of action. A taste of this kind is an indirect judgmental taste. One can only avoid this conclusion by failing to acknowledge the cost involved in acting contrary to value judgments that are only indirectly linked to the acquisition of the taste (for example, ones recommending ‘taste testing’ or spontaneity). This is precisely what Cohen does on the more natural reading mentioned above. But I can see no moral justification for such a position. Indeed, it seems to run counter to the unreasonableness-of-expecting-self-imposed-costs justification that Cohen attempts to support his stance with. If, on the other hand, we work with the more liberally interpreted senses of brute and judgmental taste, chosen brute taste can only be held by the very impulsive. So interpreted, Cohen’s position is either, again, morally arbitrary (if we penalize purely impulsive behaviour) or virtually normatively identical with equality of welfare. In the latter case, it makes conceptual distinctions (between brute and judgmental taste, and between chosen and unchosen taste) that equality of welfare does not, but the only normatively relevant combination is all but impossible since non-purely impulsive chosen brute tastes are reclassified as indirect judgmental tastes. I say ‘all but impossible’ as there is one special case where it may appear that Cohen could still reasonably deny compensation for expensive taste. This is the case of costlessly removable expensive taste. Whether it was initially chosen or not, Cohen denies compensation for expensive tastes that can be removed at no expense – which is to say not only that the tastes are not presently identified with, but also that there are no ‘incidental’ costs that are unrelated to identification. Equality of welfare would even compensate in the case where an individual with such a taste obstinately refused to remove it. The absence of present identification marks these tastes as brute in the sense that was rejected in section III above. The absence of incidental costs is much the more demanding of the two requirements mentioned in the previous paragraph. Even where a taste is disidentified with, there will almost always be some financial expenditure, lost time or other inconvenience involved in schooling oneself out of it that results in a welfare loss. As costlessly removable expensive tastes are little more than a possibility, the space between the broad judgmental taste view and equality of welfare is barely a sliver. Yet the rarity of costlessly removable expensive tastes is not the most substantial bar to their serving as an effective prop for Cohen’s position. The refusal to compensate for these tastes is morally suspect for reasons that are very much parallel to those that applied to the natural reading of Cohen (where judgmental taste was narrowly construed). A deliberate failure to remove a taste, even where there is no cost involved, presumably itself involves valuational judgment. We might again ask why it is unreasonable to ask people to act against their value judgments in some cases, but not in others. Someone endorsing compensation for judgmental taste in either the narrow sense (admitting direct judgmental tastes only) or broad sense (admitting both direct and indirect judgmental tastes) faces an unpalatable choice. They could treat the value judgments that oppose costless removal of expensive tastes as the basis for compensation for those tastes (either because the judgments are necessarily tied up with judgmental taste or for independent reasons). Or they could refuse compensation, in which case their moral consistency is in doubt, given the original justification for compensation for expensive judgmental tastes. VII. Biting the Bullet The argument that expensive judgmental taste should not be penalized has some intuitive support. But consistent endorsement of what appears to be its key premise – that it is wrong to penalize persons for choices that are required by their valuational judgment – commits Cohen to more than he acknowledges. For the premise to be consistently endorsed, both the broad construal of judgmental taste and compensation for costlessly removable expensive tastes that are not removed is required. This treatment of tastes is identical to that of equality of welfare, even if the justification is different.[23] It appears that Cohen is still determined to put distance between his account and equality of welfare.[24] If the arguments presented above have helped to clarify the size of that distance and, in particular, the normative difficulties that are involved in retaining it, they would for those reasons alone have some significance. But what if Cohen, or someone endorsing similar premises, were to bite the bullet, and accept that something very close to equality of welfare is the correct account of egalitarian justice after all? This move faces the arguments against equality of welfare presented by Dworkin, which could be applied to the new position with minimal revision. The objection to social allowance for expensive tastes is of course foremost amongst these. One question, then, is whether Cohen’s focus on the (alleged) wrongness of penalizing acts required by valuational judgment suggests a new way around the objection. It seems quite clear that it does not. In Dworkin’s original presentation, ‘someone (Louis) sets out deliberately to cultivate some taste or ambition he does not now have’, for the specific purpose of ‘trying to make his life a better life in some way’.[25] So it seems reasonable to assume that, from the outset, Louis is characterized as acting on valuational judgment. But Dworkin thinks that of no help to his cause: This does not make his claim for extra resources any more appealing or less counter- intuitive … . On the contrary, the fact that he is acting so deliberately in his own interests seems to make his claim, if anything, less appealing than the claim of someone who tries an expensive experience on a whim, for the pleasure of the moment, and then finds that he is hooked.[26] Whether one agrees with Dworkin’s position or not is unlikely to be affected by Cohen’s change of emphasis. As Cohen acknowledges, Dworkin always accounted for valuational judgment – he just did not think it mattered. Takers of the bullet-biting strategy are squarely in Dworkin’s sights. VIII. Valuational Judgment as Responsibility-Diminishing It seems to me that there may be a less hazardous way of endorsing the premise that it is wrong for persons to be disadvantaged by valuational judgment-endorsed acts. On one prominent construal of equality of opportunity for welfare, which Cohen has consistently endorsed, a disadvantage such as an expensive taste is non-compensable only where the holder has genuinely chosen it – that is, where she is responsible for it in a deep, metaphysically valid way. The appropriate distribution is dependent on both which account of free will and determinism is correct and facts particular to each case.[27] The presence or absence of preidentification, or of other, less direct value judgments that have resulted in taste formation (such as those of Dicemen), are candidates for relevant particular facts. It might be thought that, although a history of valuational judgment is not grounds for assuming full non-responsibility, it may diminish an individual’s responsibility for developing their taste. As the strength of the value judgments – and the degrees of difficulty and pain involved in acting contrary to them – increase, so responsibility decreases. We might, then, hold that Cohen’s discomfort with the position he took in ‘Currency’ is based on a failure to appreciate the full range of considerations that responsibility may take into account. The complaint is really with certain prevalent conceptions of responsibility and related concepts, such as choice, which fail to recognize the significant role of valuational judgment. That a person is acting on valuational judgment is not typically taken to be a factor in favour of their case for compensation – Dworkin for one thinks quite the opposite. Once the argument shifts to this level there appears to be little problem with the position Cohen took in ‘Currency’. One gets the outcome of compensating for valuational judgment-based tastes by combining conventional equality of opportunity for welfare with a particular account of responsibility. Now it might be asked why this strategy should be preferred to the bullet-biting one. The answer is twofold. First is the way it accounts for the moral significance of variations in the ease with which preidentification and other relevant judgments can be contradicted. In some cases, an individual may only act against their valuational judgment at cost of considerable self- contradiction, but in others, while there is some cost involved, it is relatively minor. An agent who acts against their preidentification with an expensive taste for the theatre might consequently experience great inner-anguish or hardly anything at all – it just depends on the character of the preidentification. In light of this, the strategy suggested by the alternative reading of Cohen, under which full compensation is to be provided in each case of valuational judgment-based taste, is insufficiently discriminating. A possible retort here is this: why not just adopt a further interpretation – or really, by this point, reinterpretation – of Cohen, such that his position admits of degrees. The more promising version of this approach works with the alternative reading of Cohen’s position, avoiding the moral arbitrariness of the natural interpretation, but placing all tastes somewhere on a continuum of valuational judgment strength. On other words, we accept that all tastes are judgmental (broad sense), but hold that those tastes whose cultivation could only have been avoided at great personal cost give entitlements to higher levels of compensation than those whose cultivation could have been avoided at a smaller price. This is certainly not the position that Cohen takes, and not only because it relies on the alternative reading of Cohen. For Cohen also does not seem to consider the possibility of morally relevant variations in the strength of identification; indeed, his discussion of (direct) judgmental taste seems just to assume that there is strong identification. But it does at least retain Cohen’s identification of valuational judgment and non-responsibility as two distinct grounds for compensation. There is, however, an additional argument for a subsumption of the first of these grounds under the second which points to a weakness common to both the bullet-biting strategy and the ‘sliding scale’ view of broad judgmental tastes. The argument is that both positions give hostages to fortune, in the sense that (direct or indirect) taste-creating value judgments are specified as grounds for compensation, be it full or partial, regardless of which account of responsibility happens to be correct. I do not see any reason for thinking that, whatever expensive taste- excusing properties valuational judgment has, they are independent of responsibility. If we take the most straightforward case, that of direct judgmental taste, I submit that the appropriate response to a particular instance of preidentification is very likely to depend on questions such as these: What is the causal history of the preidentification? Was the agent aware of the costs of acting as suggested by the preidentification? How do other agents with similar levels of preidentification and information act? Which general account of free will and determinism is correct? On this account, can acts based on preidentification be genuinely voluntary, or not? Does this account, combined with an account of egalitarian justice, allow that some acts based on preidentification are compensable? If so, which acts, and how much compensation? These are questions of responsibility. I do not see how we can detach the moral significance of taste-creating value judgments from them, far less assume an overwhelming moral significance however we answer them. IX. Concluding Remarks The argument of this article suggests that egalitarians looking to occupy a position on expensive taste that falls between conventional equality of opportunity for welfare and equality of welfare cannot expect the brute taste/judgmental taste distinction to carry the justificatory load. Nevertheless, the distinction serves a valuable role, in highlighting the possibility that egalitarian justice, especially as depicted by Dworkin, treats the bearers of valuational judgment-based expensive tastes in unduly harsh fashion. I hope to have shown that the corrective to this state of affairs need not be at the level of distributive principle, as Cohen proposes, since the role of valuational judgment in taste formation might be accounted for by the account of responsibility that is utilized by distributive principles. This underlines the importance for political philosophy of the contents of what Susan Hurley calls the ‘black box of responsibility’.[28] The problems with the notion of compensating for valuational judgment-based acts reinforces Hurley’s general contention that different accounts of responsibility have differing implications for accounts of distributive justice. If, as is fairly likely, valuational judgment bears on responsibility, and takes much (if not all) of its moral significance from that connection, it is a mistake to decide on its weight in distributive decisions quite independently of responsibility considerations. Interestingly, this is one case where a ‘luck egalitarian’ – or more specifically, ‘thin luck egalitarian’[29] – position may actually be reinforced by filling in the details of responsibility, since the non-luck egalitarian addition (compensation for judgmental taste) to a luck egalitarian position (equality of opportunity for welfare) may thereby be shown to be otiose. It might be objected that the conventional-equality-of-opportunity-for-welfare- plus-valuational-judgment-sensitive-account-of-responsibility strategy defended in the preceding two sections gives a hostage to fortune which, while different from that of the Cohenian alternatives, is no less problematic. This is its commitment that valuational judgment is necessarily a condition – or even, on the strongest version of the view, the sole condition – for non- responsibility. The objection is sound. Even so, to me this seems like the most plausible way of ensuring compensation for expensive taste-creating value judgments, for reasons already mentioned. Since I am unconvinced that such compensation is demanded by justice (although it may well be) I would prefer to leave the question of exactly what responsibility is as open as possible. Of course, in doing this, I face the further objection that I am myself trying to keep the lid on the black box of responsibility. In reply, I would point out that there seems to be no structural deficiency or superfluity with the thin luck egalitarian position that, like special compensation for valuational judgment-based expensive taste, would be exposed as such once a full account of responsibility was provided. It is quite compatible with responsibility, whatever role the latter gives to valuational judgment. I am not so much keeping the lid on the black box of responsibility as refusing to prejudge its contents. The strategy I propose replies to the Dworkinian expensive taste objection in just the way that Cohen intended in ‘Currency’, arguing that, regardless of whether an expensive taste is presently identified with, compensation seems reasonable where the holder is not responsible for the expense of her taste. We allow for the possibility that a history of valuational judgment is responsibility-diminishing, but we do not insist that it is a responsibility-diminishing factor, irrespective of what else there is to know about responsibility, nor (as the bullet-biting and sliding scale Cohen-derived positions suggest) that it is a compensation-entitling factor, irrespective of whether it diminishes responsibility. This is the right tack to take in the absence of overwhelmingly strong arguments for the distributive significance of valuational judgment. ------------------------------------ * I would like to thank Richard Arneson, Hillel Steiner, Andrew Williams, and an anonymous referee for their helpful comments. Research for this article was supported by the Arts and Humanities Research Council and the Worldwide Universities Network. [1] Ronald Dworkin, ‘What is Equality? Part Two: Equality of Resources’, Philosophy and Public Affairs 10 (1981), pp. 283-345. Reprinted as chapters 1 and 2 of Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000). [2] G. A. Cohen, ‘On the Currency of Egalitarian Justice’, Ethics 99 (1989), pp. 906-44. See also Richard J. Arneson, ‘Equality and Equal Opportunity for Welfare’, Philosophical Studies 56 (1989), pp. 77-93. John Roemer, Theories of Distributive Justice (Cambridge, MA: Harvard University Press, 1996). [3] Cohen actually endorsed equal access to advantage, where advantage included both welfare and resources (‘Currency’, pp. 907, 916-21). I will set this difference aside, as Cohen allows (G. A. Cohen, ‘Expensive Taste Rides Again’, in Justine Burley (ed.), Dworkin and His Critics (Oxford: Blackwell, 2004), p. 4. (Cohen believes that ‘access’ and ‘opportunity’ are different concepts, but I can detect no difference between them on Arneson’s definition of the latter [see Arneson, ‘Equal opportunity for welfare’, pp. 85-6].) [4] Cohen, ‘Expensive Taste Rides Again’. [5] For an accessible account of the debate up to Cohen’s latest contribution see Jonathan Wolff, ‘Equality: The Recent History of an Idea’, Journal of Moral Philosophy 4 (2007), pp. 125-36. [6] Cohen, ‘Currency’, p. 923; cf. p. 920. [7] Cohen, ‘Expensive Taste Rides Again’, p. 7. [8] Ronald Dworkin, ‘Replies’, in Justine Burley (ed.), Dworkin and His Critics, p. 344. [9] This is also suggested on p. 927 of ‘Currency’. But note that Cohen introduces this thought as one of a number of additional comments on Dworkin’s position that come after his main argument against it. Despite Cohen’s protestations, it is far from ‘abundantly clear’ that his main concern was always with expensiveness of taste rather than taste itself, and the only textual support he offers is the passage cited above. [10] Dworkin, ‘Replies’, p. 344. [11] See Cohen, ‘Expensive Taste Rides Again’, pp. 12, 14. [12] Cohen, ‘Currency’, p. 923. [13] Cohen, ‘Expensive Taste Rides Again’, p. 7. [14] Cohen, ‘Expensive Taste Rides Again’, p. 7. [15] Cohen, ‘Expensive Taste Rides Again’, p. 7, original emphasis. See also Terry Price, ‘Egalitarian Justice, Luck, and the Costs of Chosen Ends’, American Philosophical Quarterly 36 (1999), pp. 267-78. [16] Cohen, ‘Expensive Taste Rides Again’, p. 7, original emphasis. A note makes it clear that by ‘standardly’ Cohen means only ‘barring the special case where people welcome the fact that their taste is expensive’ (‘Expensive Taste Rides Again’, p. 27 n. 13, original emphasis). [17] Cohen strongly hints that those who develop expensive tastes for snobbish reasons or who unsuccessfully gamble that they will be able to afford them should be denied compensation (‘Expensive Taste Rides Again’, pp. 12, 14, 20-1). But given that such tastes are patently based on valuational judgment, and that Cohen mentions no reasons for denying compensation in these cases of judgmental taste but not others, I find this puzzling, as does Dworkin (Dworkin, ‘Replies’, p. 347). [18] Dworkin said something similar about the position Cohen took in ‘Currency’: ‘that supposedly different ideal (equality of opportunity for welfare) turns out to be equality of welfare under a different name’ (Dworkin, Sovereign Virtue, p. 286). This conclusion is based upon the thought that all tastes are unchosen (and therefore compensable on Cohen’s scheme) as they are themselves the result of uncultivated second-order tastes; see Dworkin, Sovereign Virtue, ch. 7; ‘Replies’, pp. 346-7, 391 n. 22. My conclusion, by contrast, is based on the argument that, on one understanding of Cohen, some tastes can be chosen, but that all such tastes are nevertheless compensable for reasons of valuational judgment. [19] See note 3 above. [20] See Cohen, ‘Expensive Taste Rides Again’, p. 21. [21] Cohen, ‘Expensive Taste Rides Again, p. 8. [22] See sections VIII and XI below. [23] Cohen holds that, even if all expensive tastes were unchosen in the way Dworkin suggests (see note 18 above), and therefore compensable according to equality of opportunity for welfare, there would still remain a difference of principle between that account and equality of welfare; see ‘Expensive Taste Rides Again’, pp. 19-20. It is worth noting that the present situation is very different from this, since Cohen has given a reason for providing compensation for expensive tastes even if they are chosen. [24] Cohen, ‘Expensive Taste Rides Again’, pp. 19-21. [25] Dworkin, ‘What is Equality?’, pp. 229, 230. [26] Dworkin, ‘What is Equality?’, p. 230. [27] Cohen, ‘Expensive Taste Rides Again’, p. 22; Cohen, ‘Equality of What? On Welfare, Goods and Capabilities’, in Martha Nussbaum and Amartya Sen (eds.), The Quality of Life (Oxford: Oxford University Press, 1993), p. 28. See also Arneson, ‘Equal Opportunity for Welfare’, p. 86; Carl Knight, ‘The Metaphysical Case for Luck Egalitarianism’, Social Theory and Practice 32 (2006), pp. 173-89. [28] See S. L. Hurley, Justice, Luck, and Knowledge (Cambridge, MA: Harvard University Press, 2003). [29] ‘Thin luck’ is just the opposite correlate of responsibility; see Hurley, Justice, Luck, and Knowledge, ch. 4. citation_temp.pdf http://eprints.gla.ac.uk/49956/ 
work_mbzil3xkobb5fnhh5sdv3lppye	----	No Job Name Justice and Solidarity: The Contractarian Case against Global Justice David Heyd The Problem: Bootstrapping Charity begins at home, they say. But of course this does not mean that it ends there. It can and should extend way beyond home. The same might be said of respect for persons and their human rights. However, as I wish to argue in this article, justice begins at home and ends there. Or to put it in more theoretical terms, some fundamental forms of justice, particularly distributive justice, are essentially domestic. If that proposition is correct, some recent attempts to estab- lish principles of global justice are conceptually misguided. Theories of justice in the past have been relatively mute as to the identity and the scope of the groups to which the principles of justice apply. The subject groups were often simply presupposed as given. Take classical Greek principles of justice: they were typically meant to regulate the life of the citizens of the polis, a well-defined group of people, consisting mainly of adult, free, Greek males. Minors, slaves, “barbarians” and women were thus left out, beyond the reach of the benefits (and sometimes the burdens) of “just treatment.” All in all, there was hardly any attempt to theoretically justify the boundaries of the relevant group within which justice held sway. The urge to extrapolate the idea of justice to the international sphere is, as its intergenerational analogue, a modern phenomenon (with the possible exception of Christian theology). Both attempts are associated with historical developments regarding the unprecedented control human beings have gained over the welfare of other people living far away, either in location or in time. Like birth control and environmental policies, which enable us to deeply affect the lives of future generations, mass movements of people, money, and ideas in our age of “global- ization” make us much more responsible than ever in the past for the conditions of people on the other side of the globe. However, such attempts at global and intergenerational extensions of justice face serious theoretical obstacles. In this article, I shall leave aside justice to future generations1 and focus on the international parallel, which has also received much attention, particularly since Kant’s On Perpetual Peace. And I will do so from a contractarian approach, since individualism as a metaphysical assumption and the centrality of the will as a normative basis for political legitimation have become trademarks of liberalism and democracy. JOURNAL of SOCIAL PHILOSOPHY, Vol. 38 No. 1, Spring 2007, 112–130. © 2007 Blackwell Publishing, Inc. The problem is strikingly simple: Who takes part in the contract that serves as the basis for either the legitimation of the state’s authority or the justification of the principles of justice? Locke’s answer is that when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority.2 Hobbes’s answer is similar to Locke’s: A Common-wealth is said to be Instituted, when a Multitude of men do Agree, and Covenant, every one, with every one, that to whatsoever Man, or Assembly of Men, shall be given by the major part, the Right to Present the Person of them all . . .3 Locke and Hobbes show how an indeterminate number of people can, through the very act of a covenant, become a cohesive group, referred to as “community” by Locke and “commonwealth” by Hobbes. The cohesion of the newly created group (as against the diffuse nature of “the multitude”) is expressed by the idea of the “body politick” in Locke and that of the one person representing all others in Hobbes. But both philosophers are completely silent about the process through which the individuals join each other to form that covenant. Is there any basis for the grouping of “any number of people” or “a multitude of men”? In other words, why should an individual (in the state of nature, or in any other imaginary original position) join forces to create a political community with these individuals rather than those? Even if the contract has the power to transform “a multitude of men” into a political community, what makes this multitude convene and make an agreement in the first place? Hobbes and Locke would surely respond that the question misses the purpose of the method of the social contract. Individual human beings have never actually lived outside a social community and hence the question of their choice to assemble in this or that way has never arisen. That is to say, individuals are usually born into human societies rather than choose to form or join them. The whole point of the thought-experiment of the social contract is justificatory, namely, to normatively ground the authority of the state retrospectively, or to offer a “post factum” test for its legitimacy and the justice of its institutions. We may guess that for Hobbes and Locke, England was the framework of the social contract as imagined by Englishmen, as was Geneva or France for Rousseau. As long as political communities were fairly homogeneous and relatively separated from each other, the issue of the scope of membership in the social contract could be left unaccounted for or assumed as given. Thus, despite the search for peace and security, believed by Hobbes to be the prime motivating force for the contract, the distinction between the national and international levels of political relations attests to Hobbes’s view that the contract is ultimately “local” in essence. Only in the “national” context is a contract possible; the international resembles the state Justice and Solidarity 113 of nature. But circumstances have changed since the seventeenth and eighteenth centuries and today’s world is characterized by much more heterogeneity in political communities and by a growing interdependence of countries and states. The issues of the identity and number of the parties to the social contract can no longer be brushed aside.4 But the new awareness of the problem of the scope of the contract leaves us in a logical quandary. If the state’s legitimacy (Hobbes and Locke) and the justification of the principles of justice (Rawls) are decided exclusively by a hypothetical contract and if the scope of the group within which this contract is formed cannot be simply taken for granted as given, it seems that the scope of the group must itself be decided by a contract. But the contours of the group engaged in a contract cannot be fixed by the contract itself. The fairness of inclusion or exclusion from the group of contracting parties cannot be determined by the contract, since it must precede it. This is merely a generalization of the well- known problems of real-life political decisions, like universal suffrage or seces- sion. Who should have taken part in the decision in England in 1918 whether women should get the vote—men only, or men and women? Or, who should vote on the proposal that Quebec secede from the Canadian federation—the Quebecois alone, or the whole Canadian electorate?5 Consider the two radical solutions to the question about the scope of the group of participants in the social contract: everyone or, alternatively, just one. Both are attempts to provide a universal basis to the contract, thus avoiding the pitfalls of controversial contingent restrictions on its range of application. However, if we say that everyone is a party to the contract, who exactly is included? All human beings in the world? Adults only? Are future people to be included in the group of “everyone”? Actual future people, or also possible future people? Should the group include also non-human rational beings as in Kant’s Kingdom of Ends? Clearly, these are substantive philosophical questions relating to the proper reference of “everyone” and they must be settled on a non- contractarian basis. Universal suffrage is a noble ideal, but universality itself is always contextual, relating to persons (or entities) of a certain kind. And this “kind” must be specified prior to the contract. The alternative of taking each (one) person, singly, as the proper scope of the method of legitimation by consent is an interesting idea, which was proposed by Rawls himself. The argument is well known: if we admit into the original position people who are all equally rational, mutually disinterested, free and under a veil of ignorance, the imaginary game of a contract among different people becomes superfluous, since all that is required is an individual’s acceptance of a set of principles of justice for society. There is no need for negotiation between identical individuals and hence there remains no point in a contract. However, the Rawlsian introduction of the veil of ignorance shifts the methodology of justification from the principle of consent to the principle of impartiality, deviating from the tradition of the social contract. It thus obviates the issue of the scope of the relevant group within which the principles of justice (or the legitimacy of sovereign power) apply.6 114 David Heyd I suggest that we return to the original idea of a contract between individuals—more than one but less than everyone. My argument is that even if fairness demands that the principles of justice be agreed upon under a veil of ignorance, we must assume an independent motive for people to enter the contract with those particular people rather than with others, a motive that cannot be hidden by that veil. Note that the existence of such a motive belongs to the conditions or circumstances of justice, not to the justification of the principles of justice. The motive only describes the formal requirement for the applicability of the proce- dure of justifying the normative principles. I therefore suggest that we reverse Locke’s and Hobbes’s view: consent does not create a community; it arises out of a sense of community. In American language, “We the people” cannot be defined by the Constitution, since it is this body of people that creates it. Justice: A Matter of Truth or Consent? Before further examining the problem of global justice, we should emphasize that it arises only within a contractarian point of view. Non-contractarian theories of justice have a long and venerable tradition. The fundamental issue separating the two approaches is whether justice is a matter of truth or a matter of consent; is it a property of the world or a human construction; or, whether it is “given” or a product of the will. The first, realist view of justice takes it as characterizing natural or metaphysical harmony, balance or order. It is associated with concepts such as desert, status, role, or proper functioning, and is accordingly grounded in specific descriptions of human essential nature as well as in social or normative ideals. The second, voluntaristic view of justice arises out of skepticism regarding the metaphysical assumptions about human nature and offers in their place a procedural account of justice as the product of the exercise of individual human will in concert with other individual wills under particular constraints (the ideal- ized conditions of the “state of nature,” or the fairness of the constructed “original position”). Some forms of modern liberalism, being aligned with metaphysical skepti- cism, are naturally biased toward a consent-based analysis of justice. Thus, in Hobbes’s theory, there is no application of the concept of justice in the state of nature. It is only after the sovereign is instituted that by his will justice is created. For Locke, even though moral norms exist in the state of nature, justice, in the sense of the actual distribution of property rights, is the outcome of contractual consent. And of course for Rawls, justice is not given in any metaphysical or realistic way, but is a matter for construction, that is, constitution through human cooperative agreement. Pre-Socratic philosophers treated justice as a matter of natural, cosmic harmony. Plato understood justice in terms of a grand scheme of proper function- ing and an ideal system of a division of labor, reflecting the essential nature of human beings and the realization of their potential. Contract-based liberalism, however, treats justice as a matter of social cooperation, that is to say, a voluntary Justice and Solidarity 115 form of interpersonal enterprise. Justice is no more a given truth or principle, but a product of a negotiated deal. But of course, the characterization of the conditions of such negotiation, the so-called “circumstances of justice,” is crucial for exam- ining the possibility of extending justice to the global sphere. Since Hume, the list of the circumstances of justice has included moderate scarcity, limited sympathy, mutual vulnerability or interdependence, and rough equality. We cannot cooperate when extreme scarcity leads us into a life-and- death struggle; we do not have to cooperate when there is unlimited affluence of resources; we cooperate without having to create principles for cooperation when altruism and love serve as sufficient motives; we have reason to cooperate only when we are not self-sufficient but rather depend on each other, either to avoid harm or to create benefits; and if, as in sharply hierarchical societies, we are not more or less equal, our interpersonal behavior will be based on domi- nation rather than cooperation. These circumstances of justice are determined partly by universal human conditions and partly by historical factors. Accord- ingly, the issue of global justice must be considered in the light of both the universal and historically determined factors that make social cooperation pos- sible and valuable. There seems to be no reason to believe that, at least in principle, the circum- stances of justice apply any less to the world as a whole than to domestic societies. There are indeed differences of degree in scarcity and equality on these two respective levels, and there is some debate on the extent of mutual vulnerability and interdependence on the global sphere. However, my concern is with the parameter of limited sympathy. Limited sympathy has been traditionally inter- preted, from Hume to Rawls, in negative terms, namely, as self-interest, or at least as the mutual disinterest of the parties to the contract-based principles of just cooperation. But social contract theorists have neglected the corresponding posi- tive meaning of the idea of limited sympathy, namely, the degree of actual care for others which I would like to argue constitutes a necessary condition for the operation of justice and should be understood as one of the constitutive circum- stances of justice. The idea is the following. The principles of just distribution of a social cake are analytically connected with the conditions of cooperation which enable the production of the cake (on the assumption that such cakes cannot be made by a single individual). But the cooperation to bake a cake is not simply given, since the crucial question is with whom do we want to do the baking and the eating of the cake. Social contract theories ignore a fundamental motive for cooperation, which goes beyond self-interest, utility, or survival: the wish to cooperate with a par- ticular set of individuals rather than with another. Game theoretic approaches to justice typically take for granted the scope of the group within which “the game of justice” is played, referring to the players in thin (universal) terms as rational beings (or, to be loyal to Rawls, rational and reasonable individuals constrained by the sense of fairness). But there are numerous schemes of cooperation for any given individual, differing from each other in the scope and the identity of the 116 David Heyd other individuals with whom cooperation takes place. Utility or prudence cannot decide this scope or identity since at most it accounts for ad hoc forms of social cooperation (typically in economic enterprises or games) rather than for compre- hensive systems of social justice.7 And once we realize that the option of coop- erating with everybody is indeterminate, since, as we have shown, it can be interpreted in many ways, we have to decide on what basis the group within which the cooperative enterprise occurs is defined. In other words, cooperation is not just a given fact or condition of justice, but something to be chosen. This demonstrates the shortcoming of a Lockean theory of justice. It takes “the cake” as given, namely, natural resources in the world as given by God to all humanity to share. This is also the ground for the Lockean proviso, which takes all human beings as parties who deserve some share in the goods of nature. However, most issues of distributive justice involve the production of the goods (the baking of the cake) rather than just their consumption or use, which leaves open the question, with whom do we want to cooperate in the enterprise of production and related consumption. If God gave the natural world to humanity as a whole for its use, then we all have to share natural resources with each other, but, in the absence of such theological assumption, the fact that we happen to live on this planet does not in itself create a motive or a reason for sharing. Sharing takes place when we feel special care for others, which arises out of either natural ties or cooperative commitments. Before moving on to the positive grounding of the contractarian theory of justice, I would like to address an interesting and challenging objection to the “local” conception of the contract.8 Any restricted group of individuals can engage in a contract which would generate universal principles of distributive justice, that is, principles that apply to all human beings in the world (rather than just to the contractors). Thus, members of the group can agree to distribute the product of their common enterprise with all others, who are not members of the group, in various degrees: from a minimum that would secure international peace, through a more egalitarian sharing, to extreme forms of saintly altruism. In all these cases, the fact that the principles were agreed by a restricted group of people does not imply that their “reach” cannot be universal. Maybe this is exactly the way we expect enlightened liberal states to fix their principles of justice, namely, to apply them globally, beyond their own borders. Such a disparity between the scope of the consenting group and that of the beneficiaries of the principles agreed upon by the group is indeed possible (although, unfortunately, it tends to be of the less altruistic kind). But it does not undermine the theoretical claim made above, which was concerned merely with the way principles of justice are justified rather than with their content (or the identity of their beneficiaries). The point of contract-based principles is that they apply to the contractors only because they agreed to them (under certain idealized conditions). Therefore, they create claims and counter-claims only within the group in which the contract was made. Non-members of this group may be the beneficiaries of the contract, but have no claim or right against the contracting Justice and Solidarity 117 members. An obvious indication for it is that non-members can share the benefits of a contractual agreement of a group of people, but cannot be expected to carry the burdens of such an agreement (to which they were not party). They can enjoy transfers of wealth to them but cannot be taxed. Contract-based principles of distributive justice can therefore apply to non- members but only for some reason lying beyond the idea of pure consent. The contractors may believe, for instance, that non-members deserve some goods, a minimal standard of living, or the satisfaction of their needs. But these are substantive moral principles, which serve as the grounds for the distributive duties. All the contract does in this instance is to help decide the way the non-contractual duties of members toward non-members is to be distributed within the group of members. An obvious example would be duties of care toward animals (which are beneficiaries of these duties without being parties to the contract). A more con- troversial but still powerful example would be a society’s duties to future genera- tions. Even if future people have rights (which I doubt), they can hardly be accounted for in contractarian terms, especially if we think of future people who are just possible and whose existence is subject to our own decisions. Non- members can never be considered free riders by members of the contracting group since they are not bound by any duty of fairness. Solidarity Solidarity is a social force which contributes to the sustenance of the unity of a group of people. Like the solidity of physical bodies, it is what keeps an entity from disintegrating. Both its etymology and historical sources are French, leading back to the revolutionary idea of fraternité.9 It is intimately connected to coop- eration, that is, to intentional common enterprise, calling for a combined and coordinated action by many people. Unlike natural bonding forces of the kind of family love and care, solidarity is mediated by a commitment to an idea or a cause. In that respect, solidarity is “ideological.” Although we say that solidarity is something we feel toward or with others, this is not a raw feeling, but involves cognitive and reflective elements. Solidarity is thus to be distinguished from both family love and the companionship of friends (camaraderie) in being based on the awareness of a common cause, a worthy social goal, a sense of shared past or future destiny. Solidarity, like cooperation, is not simply given but rather chosen or constructed on the basis of certain beliefs. Solidarity has a typically cohesive effect and is often considered necessary for the success of a social struggle. Thus, solidarity is manifest in the struggle of the working class against oppression, the fight of trade unions for the amelioration of working conditions, or the effort of liberation movements of minorities to achieve recognition. Solidarity typically involves the commitment of individuals to remain loyal to the collective cause even when it means ignoring their self-interest and potential personal gain.10 In that respect, solidarity does not come naturally to us but takes a conscious effort aimed at the achievement of an impersonal goal.11 Solidarity has both descriptive 118 David Heyd and normative dimensions: it characterizes the “togetherness” of people and makes demands of loyalty to the group. Since solidarity is created in the course of a struggle for a collective cause, it is necessarily exclusive, presupposing the existence of competing causes. Unlike friendship, tribal community, and family, solidarity is a social bonding that is formed against, or at least in competition with, other groups. Richard Rorty, for example, speaks of “we” or “one of us” as the foundation of solidarity, when “we” is contrasted to “they” on the basis of a historically dependent construction rather than on any essential natural qualities.12 But this does not imply a Schmittian friend/foe model. Identification with a group is exclusionary in some sense, but not necessarily hostile. Chantal Mouffe appropriately describes solidarity as an “agonistic” (rather than “antagonistic”) basis for “we-identity.” Solidarity is a relational concept which presupposes the existence of other groups that are rivals or adversaries.13 Solidarity, I suggest, is a form of bonding, which is partly given, partly created by a group of people, on the basis of a shared past, a present interest, hopes for the future, or engagement in an enterprise directed to the realization of common values. Shame is an interesting indicator of the limited scope of solidar- ity: we can feel ashamed of what our family members do, or of the behavior of our fellow citizens and even government. We do not feel shame for what other human beings as such have done, and if we do, this is only on the assumption that there is a higher order of beings before whom we feel this shame (God, imaginary extra-terrestrial beings).14 The sources of solidarity are often circumstantial and even forced upon people. Thus, sharing a territory with people of a different culture or even “nation- ality” creates a powerful form of economic and psychological interdependence which, in turn, gives rise to a sense of solidarity or may create a normative reason for promoting solidarity. Unlike friendship or tribal identification, national soli- darity is often shown among people who may be in many respects adversaries, like national and ethnic minorities. The state responsibility of justice toward minorities is exclusive, that is, does not include members of that minority group living outside the borders of the state. Majority and minorities in a multicultural society share the same destiny in many respects, a fact that creates a sense of solidarity. Note that the historically based formation of solidarity is fully compatible with the non-historical, hypothetical nature of the Original Position (or the classical “social contracts”): the historically contingent circumstances are the conditions for the operation and scope of the thought experiment of a hypothetical agreement. One important implication of the agonistic character of solidarity is that it cannot be universal. Humanity might be the object of Kantian respect but not of identification. We identify ourselves as human beings, but we do not identify with human beings as such. The idea of a “human community” is as misleading as it is attractive.15 We could imagine indeed circumstances in which our planet is threat- ened by the invasion of a rival, non-human race, leading to the rise of “human solidarity.” But this only serves to confirm the relational analysis of the concept. Solidarity is in its essence partial, in the sense of being opposite to both universal Justice and Solidarity 119 and impartial, that is to say, it is local and biased. This does not in any way detract from the universality of moral duties or human rights.16 It only aims to distinguish between the universal level of morality and the local, solidarity-based level of certain forms of social justice. Rorty is willing to extend the application of the concept of solidarity to the universal level of “all humanity,” arguing that we feel solidarity with any human being vulnerable to suffering and humiliation.17 But this extension, I believe, is artificial, since it does not involve any shared value or cause with which people actually identify, but only a universal revulsion from pain. Furthermore, the extension goes against Rorty’s own analysis of solidarity, since sympathy and compassion with people suffering pain is not a matter of construct- ing a group of “us” on the basis of contingent historically dependent conditions but a universal natural inclination of human beings (which, unlike solidarity, is often expressed also toward animals). Solidarity, accordingly, is an interesting attitude, since it lies halfway between unmediated feelings like love or compassion and a pure rational Kantian recog- nition of the moral standing of fellow human beings who have dignity and rights. One may describe solidarity as sympathy mediated by a belief in a common project. Solidarity combines personal and impersonal components: the objects of solidarity are mostly anonymous in the sense that the subject does not personally know them. But they are also not considered as just human beings abstracted from all their individuating characteristics. We care for people with whom we feel solidarity, but do so on the basis of their belonging to “our” group fighting for a certain goal rather than as just individual human beings. The view I am proposing here is that just distribution is one such social goal and hence it both presupposes and reinforces solidarity.18 This combination of a historical “given” with a self- determined commitment to a cause is constitutive of solidarity. It should be noted that the justification of the particularistic aspect of distributive justice is not grounded in universal terms (such as the general efficiency of dividing the world into smaller units in the attempt to promote overall justice in the world). It is rather that the conditions of the applicability of contract-based justice are particularistic. Durkheim’s work on solidarity can help us see this point. The modern phe- nomenon of the division of labor is (surprisingly) associated by Durkheim with the development of social solidarity. For Durkheim, division of labor is not merely a means for the promotion of individual welfare through increased production, but a moral value in itself. It touches upon the deep foundations of the very existence of social bonding, since it involves mutual complement rather than mere egoistic exchange. It is more similar to Aristotelian friendship than to cooperation in game-theoretic contexts.19 Mechanical solidarity, for Durkheim, is created on the basis of likeness and is primarily expressed by the criminal law of society, its collective passionate reaction to crime, the common response of people sharing a common conscience. Organic solidarity, in contrast, is grounded in the differences between people which call for cooperation and division of labor. It is the recog- nition of the importance of the different functioning of different parts of society, analogous to the harmonious functioning of parts of an organism.20 For our 120 David Heyd purposes, we should emphasize that Durkheim contrasts modern society, based on the functional division of labor, to traditional society, based on kinship or natural tribal affinity. Durkheim is convinced that modern, organic solidarity is no weaker than its traditional predecessor. Furthermore, organic solidarity is expressed in institutions rather than in feelings, primarily in the laws of contract, family, property, and labor. The apparently impersonal structure of social relations creates the mutual commitment of solidarity. Durkheim’s analysis of solidarity and the division of labor can be used to analyze the problem of the social contract raised at the beginning of this article. Even if the terms of the contract itself are described as completely impersonal, self-interested, and impartial, the motive for entering the contract in the first place should be described in more particularistic terms, namely, the Durkheimian drive to complement one another, to cooperate with others in achieving a morally valuable aim. The original position is not only the thought-experiment in which the prin- ciples of just social cooperation are articulated; it is itself a cooperative enterprise, and as such it must have a motive. As in any game, the rules are impersonal and impartial, but the motivation to play the game with particular people cannot be purely impersonal or abstract. Solidarity is such a motivation and operates in a dialectical way: we engage in just cooperation with people about whom we care and, in turn, the cooperation itself reinforces our solidarity with them. This bidirectional operation of solidarity can be demonstrated in the cooperation of the “working class,” or in the mutual commitment of members of a trade union, in Durkheim’s idea of division of labor, or—in my argument—in distributive justice. One should not be misled into thinking that solidarity is a communitarian idea which serves as a basis for a communitarian conception of justice. Durkheim’s concept of solidarity relates to a modern Gesellschaft rather than to a traditional Gemeinschaft.21 It is accordingly expressed in institutional arrangements rather than in compassionate feelings or shared traditional practices. As Chantal Mouffe proposes, it assumes common values but no agreement on their ranking. The ranking is left for political negotiation within the group, but solidarity is the bonding of the group within which politics takes place.22 I may add that in social contract theory unanimity is a condition only in the agreement on the foundational terms of political legitimacy and the principles of justice; once political society is established, the rule of decision making is typically majoritarian and allows for pluralism and competing goals.23 Solidarity does not necessarily generate an egalitarian system of justice, but it does explain the equal weight given to the parties in the initial contract. Solidarity is, therefore, the bond which unites the partners to the contract in their commitment to decision-making procedures in conflict situations typical of heterogeneous societies.24 In other words, we must first decide the scope of the group within which we count heads and whose majority we follow. Majority, like justice, cannot fix the size of the group within which it operates. So it seems that although liberalism in its universal view of moral relations must be suspicious of the idea of solidarity (and indeed this idea has been much Justice and Solidarity 121 more popular in socialism, feminism, and communitarianism),25 it nevertheless presupposes solidarity as the condition for the social contract. This could also serve as an answer to Brian Barry’s query: How can Rawls’s contract take place in a particular society if the contractors are supposed to be mutually disinter- ested?26 Disinterest is one of the conditions in the original position, but it does not and cannot be a condition for entering the original position. The State It is no coincidence that the idea of contract-based legitimation of govern- ment, and hence of political justice, was developed more or less simultaneously with the rise of the modern state. The state is the most extensive social framework in which principles of distributive justice can be meaningfully applied. Smaller- scale social associations have their own distributive norms, but they cover a more restricted scope of goods and burdens to be distributed. Voluntary associations, like clubs and games, define the scope of distributions in a relatively precise way, but cover only little of the main goods and burdens of human life. Natural associations, like families and tribal communities, control much wider systems of distributions and deserts, but the basis of these systems is not voluntary. The social contract is a device for generating principles of justice that are both voluntary and comprehensive in their content. The state is the natural locus for such principles since it enjoys sovereignty, that is, the power to enforce the contract in a wide array of social issues: it distributes the burdens of military service and taxation as well as the benefits of many public and private goods. It is the most effective framework for the division of labor. Critics of the modern state, like Habermas, argue that the state is an imagined community (in Benedict Anderson’s terms), a construction invented in order to create social solidarity where there is no cultural or ethnic basis for a common political identity. Max Pensky says that “ ‘Nation’ consists of an imaginary soli- darity among strangers that cements the otherwise fragile bonds of reasonable cooperation.” Furthermore, he adds, the difficulty of creating solidarity for the achievement of abstract republican ideas makes the nation-state “ ‘double coded’ or indeed Janus faced.”27 On the one hand, the universalism associated with political and moral equality requires the rejection of all particularistic loyalties; on the other, national solidarity defines itself “against” the other. There is, in other words, an inner contradiction between what might be called inward universal egalitarianism and outward particularism. Now, my approach to the relationship between justice and the state considers this tension between the exclusivism and inclusivism of the state as exactly its asset as the framework of distributive justice. For it embodies a form of solidarity that arises out of certain historical factors (like shared territory, common experience, sometimes a dominant language and culture), and it applies egalitarian principles and impartial concern to its own citizens. 122 David Heyd So David Miller is right in claiming that “without a common national identity, there is nothing to hold citizens together, no reason for extending the role just to these people and not to others.”28 But this in no way entails a communitarian view of either the identity or the normative basis of the state. For these are at least partly derived from the very enterprise of instituting agreed-upon principles of justice. There is no circularity in such a characterization of the state, although it is dialectic in nature: it originates in some form of a historical process, but is then reinforced by the sense of the common endeavor to establish and maintain a just society. This is typically the case with the Constitution-based identity of the American nation.29 Even Brian Barry, a passionate advocate of cosmopolitanism, concedes that national identity requires more than a passport and that it is con- stituted by “civic nationality,” namely, the identification with society’s social institutions and the recognition of a common good. The problem with Barry’s view is that it is not clear what he means by common good: is it a universal good (which would make “nationality” vacuous), or is it particular to the national group (which would weaken his argument that political entities have no moral value and are only instrumental in promoting universal values such as human rights)?30 Solidarity-based justice does not exclusively express itself in the framework of the nation-state. But it should be noted that when it crosses national boundaries it is not constituted by a contract. Thus, the solidarity of the working classes in the communist sense is the mutual commitment of people in different countries to the transformation of the social system into a more just one. But justice here means a substantive ideal scheme of power relations and distributions rather than a set of principles generated by an ideal contract. On the other hand, the call for social solidarity of the middle class with the unemployed and the poor within a given society is a hallmark of the welfare state. It is a demand for the special concern of people for their fellow citizens with whom they cooperate politically (in the democratic vote, in defending the country, in producing its wealth, in perpetuating its cultural heritage, and of course in sharing its territory).31 Can Justice Be Globalized? As I indicated at the beginning of this article, theoretical attempts to extend the scope of application of distributive justice across nations arose more or less simultaneously with attempts to extend it across generations. Of the two extrapo- lations, it was believed that the intergenerational (“vertical”) is more intractable than the international because of the crucial difference between possible and actual people. Duties of justice toward future people cannot be fully determined due to the indeterminate number of people who are going to be both subjects and objects of those duties. Not only do we not know the relevant demographic data; the number of future people is to a large extent determined by the economic and demographic policies which stand to be chosen. This is a logical problem for which there is no coherent answer. On the other hand, global justice in the “horizontal” sense concerns actual people whose number and identity are both Justice and Solidarity 123 given and known (not to speak of their needs and preferences which can only be guessed in the intergenerational case). In that respect, at least philosophically, the case for transnational justice is much easier to make.32 However, if my argument about the conceptual connection between justice and solidarity is persuasive, then it seems that the intergenerational application of justice is more natural than its global counterpart. For it is definitely the case that our concern for “our own” descendants (and respect for our predecessors) carries more weight than our concern for contemporary strangers. The former are conceived as partners to the social cooperation of our polity, for whose welfare we strive, and we expect them to contribute to a common enterprise that is transgenerational in nature. It is much more natural to view the state as extending in time than to see it as a global entity comprising all actual (present) human beings. We feel solidarity with our (future) children and grandchildren but not with our remote contemporaries. A single generational “slice” of a community is not self-sufficient in the sense that we cannot invest meaning in our private and collective life without the perspective of both the past and the future of the social project in which we are engaged. Yet, the transgenerational continuous existence of a community makes perfect sense, even independently of other, contempora- neous communities. However, there are a few powerful philosophical voices which press the case for global justice no less than for intergenerational justice. Impartiality means that we should take the geographical index as no less arbitrary than the temporal. Much of the debate revolves around the possibility of applying Rawls’s difference principle globally, and whether Rawls himself is correct in insisting that it can be done only in a limited way. Charles Beitz is one of the first and most fervent advocates of global justice. He argues first against the Hobbesian “realist” view that considers the international realm as lying beyond the grasp of moral judg- ment. Rawls’s difference principle should be applied also globally, ideally on the individual level (i.e., not constrained by intra-national arrangements), or at least on the national level (constraining any deviation from international equality by concern for the worst-off country). Beitz’s cosmopolitan approach grounds the duties of international redistribution not in the duty of assistance but in that of justice.33 For sovereignty, unlike autonomy, cannot serve as a defense against sharing a country’s resources with others. Unlike natural talents, which are not subject to redistribution, being constitutive of our personal identity, natural resources do not constitute collective or national identities, and hence their actual distribution in the world should be considered morally arbitrary and consequently subject to redistribution on the basis of egalitarian justice.34 This appears to be a forceful argument, but we must remember that some important natural resources (even oil) are not like manna, simply there to be used, but have to be searched for and extracted from nature, that is to say, they have value only when a cooperative human activity transforms them into consumable goods. Again, the cake, even when it looks “natural,” has to be baked before being eaten and hence its just distribution is a matter of deserts that accrue to the 124 David Heyd participants in its production. Indeed, this might not apply to some primary goods like health, in which desert or right is not derived from the contribution to its “production.” But even in this case, we view the distribution of health services as part of an overall scheme of social cooperation in which the ability to provide these services is dependent on the productivity in a particular group of people and on their particular order of priorities. Beitz also points out that sovereignty cannot be a morally relevant constraint on global distributions. The boundaries of a political sovereign entity cannot be left to individuals to decide, since—as was argued at the beginning of this article—who will decide the scope of the group of individuals who will make the decision? However, I think Beitz draws the wrong cosmopolitan conclusion from this puzzle of bootstrapping: it cannot mean that all human beings should take part in deciding the principles of just distribution, since that already prejudges the issue of the correct extent of the contract and in any case leaves the range of “all” indeterminate. For this reason, Beitz’s demand to leave the facts about national affiliation under the veil of ignorance when engaging in the thought-experiment of the original position undermines the very possibility or motive for a contractual agreement.35 For when I choose to enter the original position, I want at least to know with whom, with what kind of people I am going to hold justice relations. Rawls, in his later writings, came to the conclusion that distributive justice, particularly the difference principle, applies only on the domestic level, in “bounded societies” which are self-sufficient transgenerational systems of coop- eration into which individuals are born and in which they usually die. Although there are transnational principles of justice, they first apply only to “peoples” (rather than to individuals), and second they are limited in content to raising other societies (or peoples) to the threshold conditions of justice, that is, the ability to maintain just domestic institutions.36 There is, therefore, no duty of justice of equality toward either the worst-off societies or the worst-off individuals in the world. The main reason for this restriction of justice to the domestic sphere is that societies are to a large extent responsible for their own economic conditions, which are the function of free choice regarding demographic planning and other cultural values (such as the rate of savings for future generations, or religious arrangements of property and power distribution). I want to reinforce the Rawlsian opposition to the globalization of justice. Rawls points out that different societies might agree on different principles for domestic justice, for example, non-liberal (but “decent-hierarchical”) societies would not accept the difference principle. But even assuming that (ideally) all societies in the world agreed on the difference principle, this would not mean a global application of that principle. For each society is at best motivated by the idea of advancing the welfare of its worst off members, rather than the world’s. This can be illustrated by an analogy. If two societies adhere to the (same) majority principle, it does not mean that they wish to follow the joint majority of the two societies! Even the other clause of Rawls’s second principle of justice, the equality of opportunity, is social specific; it is artificial to think of giving every- Justice and Solidarity 125 body in the world equal opportunity in the competition for jobs, education, or political participation. But of course, these analogous cases of distributive justice—majoritarianism and equal opportunity—should be distinguished from the commitment to human rights: two countries which sign the Geneva Conven- tion assume a universal responsibility to prevent war crimes in general, not just “their” war crimes. The same applies to natural duties like those of assistance to starving people. So the local character of justice does not derive solely from the culture-dependent nature of its principles, but more fundamentally from the local basis or motive of the cooperation which it is meant to regulate. It is interesting to note that while on the domestic level the contract includes everybody, regardless of his or her comprehensive moral views, on the interna- tional level a contract is made, according to Rawls, only with peoples of a certain kind, namely, “liberal and decent,” and not with “outlaw and burdened” societies. This indicates that any contract must be motivated by some deep motive, such as solidarity, which operates in different ways in the domestic and the international contexts. In the domestic case, it is the motive of self-interested individuals to further their welfare by cooperating on a fair basis with people with whom they feel solidarity. In the international case, it is the motive of promoting justice, peace, and security which leads societies to principles of non-aggression, trade relations, and aid. Indeed, states as such do not feel solidarity with each other, but peoples often do share such feelings (e.g., the United States and Britain in World War II). However, this kind of solidarity leads to alliances and agreements of mutual interest rather than to relations of distributive justice. These agreements, unlike the domestic social contract, are actual rather than hypothetical, and are binding like promises rather than as a matter of fairness. Both the domestic and the global approaches to justice take the individual as the essential unit. Although Rawlsian contract theory is conceived as a mere political construction, the idea of justice as fairness must take the individual as a non-arbitrary, metaphysical foundation in the theory. It is only the scope of the group of contracting individuals, which is left contingent (depending on the kind of solidarity frameworks that happen to develop in history). In other words, individualism is a philosophically necessary assumption of contract-based justice. However, the international approach addresses relations between peoples, states, or societies, which are not metaphysically fixed units, but rather empirically determined entities, and worse, entities whose scope and bounds are themselves partly objects of normative decision. Now, denying that justice applies globally does not mean that there are no moral principles governing international relations. There are natural duties which obligate both individuals and governments, primarily the duty of aid. People who lack the basic necessities, like food and water, immunization or shelter, have a legitimate expectation to be assisted. Unlike the concern for the worst off in society on the domestic level which is based on equality, the concern for starving people in other societies is based on want, on deprivation of universal human means of survival. Human rights and international law are also to be respected 126 David Heyd irrespective of national boundaries and cooperative agreements. So are the duties of compensation for past exploitation or oppression, which are measures of corrective justice. On the level of states, non-aggression and the respect for trade and other agreements are principles that must be respected. But these are all principles of a different sort than those of fair distribution (like the difference principle). Their justification lies in human nature, rationality, or sympathy, rather than in ideal contractual agreement. Indeed, there are also specifically distributive problems that call for global solutions, like the distribution of the burdens associated with fighting global warming, the ozone threat, the dwindling of the fish population in the oceans, the disappearing rain forests, world epidemics, and so on. There are goods which in their nature are global, that is, cannot be linked to any particular sovereign territory. These problems can only be addressed by sovereign states in the world through mutual agreement. But like international trade agreements or mutual disarmament treaties, these do not relate to “the basic structure of society,” but are of an ad hoc nature. They reflect the power relations and interests of the actual parties rather than the idea of fair distribution (although this does not mean that the agreements are free from moral constraints, like the prevention of exploitation or the use of force). Unlike the “basic structure of domestic society,” world order is expected to achieve primarily peace, stability, and mutual advantage, rather than the fair distribution of primary goods. The aim of this article is modest. It does not intend to claim that human action on the global level is free from moral constraints. It does not purport to relieve either individuals or states from duties toward members of other societies. It only tries to show that one of the most powerful methods of justifying normative arrangements, that of the social contract, cannot account for the sphere of global moral relations. If we adhere to a liberal view of justice as a consent-based system of norms created under the strict methodology of a hypothetical contract, then we will have to view international relations and global distributions as deriving their justification from a different source than that of the contract. Justice, particularly in its distributive sense, should be kept as a separate category from natural duties, rational ad hoc agreements, impartial solutions of conflicts, and respect for human rights. This article tries to show that the distinctive feature of contract-based justice is a prior sense or motive which makes the contract possible and defines its scope. This sense is here called solidarity. The answer to Hobbes’s perplexity— how can a multitude of people institute a commonwealth through a covenant?—is quite simple: the covenanting people are not really a multitude to begin with. This article was written during my fellowship at the Institute for Advanced Studies of the Hebrew University of Jerusalem. Justice and Solidarity 127 Notes 1 Alongside numerous philosophers following Rawls, I have discussed that issue in some detail in my Genethics: Moral Issues in the Creation of People (Berkeley: University of California Press, 1992). 2 John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), 331. 3 Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996), 121. 4 For an early discussion in our period of democracy’s inability to determine its scope, see Frederick G. Whelan, “Democratic Theory and the Boundary Problem,” Nomos 25 (1983): 13–47. 5 Cf. Bernard Yack, “Popular Sovereignty and Nationalism,” Political Theory 29 (2001): 529. 6 Sen strongly advocates this shift from the model of consent to that of impartial arbitration. And he is right in his belief that a model of impartial decision can avoid the logical problem of a contract with future people or with potential members of a given polity in deciding the scope of membership. However, I am not sure how the conditions for impartial decision can be speci- fied. The whole point of consent-based legitimation is that it avoids the interminable contro- versies about what constitutes impartiality by letting the parties to the conflict agree on the principles of justice. Impartiality, like neutrality and the “ideal observer,” is hard to define without appealing to substantive values or positions, while the fairness of a process of agree- ment is less controversial. Amartya Sen, “Justice across Borders,” in Global Justice and Tran- snational Politics, eds. Pablo De Greiff and Ciaran Cronin (Cambridge: Cambridge University Press, 2002), 45–46. 7 This seems to go against Russell Hardin’s view in his One for All: The Logic of Group Conflict (Princeton, NJ: Princeton University Press, 1995), particularly chap. 3. I do not deny that self- interest and group identification are often “congruent” and that such identification may cease when costs to the individual become very high (p. 47). However, this does not prove that self-interest can be the exclusive and exhaustive grounds for the formation of a political entity with its own system of justice (even if we include under “self-interest” altruistic motivations such as the interests of others). Hardin’s main concerns with the rationality of identification are contexts of ethnic or national conflicts (where it is natural indeed to approach the issue of belonging from the instru- mental or self-interested point of view); but my focus here is on the context of distributive justice in which the promotion of interest within a fair system of binding rules (rather than pure self-interest) is sought. 8 The objection was raised by one of the anonymous referees of this article. I am grateful in general to his or her detailed and incisive comments. 9 It is interesting to note that most of the major philosophical literature on the subject of solidarity is French (and then German), rather than English and American: Auguste Comte, Emile Durkheim, and Jürgen Habermas, to name a few of the important writers on solidarity. Rawls considers the difference principle as a manifestation of fraternity (A Theory of Justice [Cambridge: Harvard University Press, 1971], 106), but does not analyze its nature. 10 Loyalty is closely related to solidarity in its being “necessary to form a community of reciprocally caring people, committed to counting each other as equal in their common project.” George Fletcher, Loyalty (New York: Oxford University Press, 1993), 20. I follow Fletcher in the idea that “loyalty is a critical element in a theory of justice; for we invariably need some basis for group cohesion, for caring about others, . . . as partners in a common venture” (p. 21). However, soli- darity seems to me to better capture the conditions of justice than loyalty, since it is not a straightforward duty (sometimes even overriding other moral duties), but rather a presupposition of justice (though it has some weak normative force). Solidarity is a less personal relation, and, unlike loyalty, does not apply to marital relations or to the relations between man and God. The opposite of solidarity is not treason or treachery, but simply indifference. It is essentially reciprocal (which is not the case with loyalty): I cannot feel solidarity with a group in which no one else feels solidarity, since the group is (partly) constituted by the sense of solidarity. This also explains why I can be loyal to my (true) self, but cannot be said to feel solidarity with myself. 128 David Heyd 11 Some philosophers distinguish between natural solidarity (of family or community members) and “project-related solidarity” (based on what I refer to as a common cause). See Klaus Peter Rippe, “Distinguishing Solidarity,” Ethical Theory and Moral Practice 1 (1998): 355–73. My approach, however, involves features of both kinds of solidarity. As Joel Feinberg has noted, solidarity consists not only of the overlap of shared specialized interests (like in corporations), but also of a community of interests (like in a family or a nation). See Joel Feinberg, Doing and Deserving (Princeton, NJ: Princeton University Press, 1970), 233–34. It is interesting that Feinberg suggests an argument concerning retributive justice which runs parallel to the one outlined here concerning distributive justice: collective responsibility can be imposed on a group of people only when there is an “antecedent solidarity” between them (ibid., 240–41). 12 Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989), 189–98. 13 Chantal Mouffe, “Politics, Democratic Action, and Solidarity,” Inquiry 38 (1995): 99–108. 14 This very exceptional sense of shame was developed by Karl Jaspers in his moving, post-Holocaust essay on German guilt. Metaphysical guilt is felt by human beings for crimes other human beings have perpetrated. It is felt in the face of God and is close to the sense of shame in belonging to the same species as the perpetrators. Karl Jaspers, The Question of German Guilt, trans. E. B. Ashton (New York: Capricorn Books, 1961). Cf. Feinberg, Doing and Deserving, 236–37, where guilt and shame are presented as indicators of solidarity. 15 Avishai Margalit has pointed out to me the deceptive and manipulative idea of “the family of man” (famously used as the title of a 1950s exhibition of photography). 16 Richard Miller, “Cosmopolitan Respect and Patriotic Concern,” Philosophy and Public Affairs 27 (1998): 202–22. Equal respect applies to all human beings as such; concern applies in more local groups, like peoples. 17 Rorty, Contingency, 192. 18 For a very close view, see Véronique Munoz-Dardé, “Fraternity and Justice,” in Solidarity, ed. Kurt Bayertz (Dordrecht: Kluwer, 1999), 87: “It may appear that the ‘spirit of fraternity and benevo- lence’ must already exist between citizens as a precondition of social justice, and that the difference principle depends upon a conception of the good that makes each member of the political community want to identify with and care for other citizens.” See also Margaret Canovan, Nationhood and Political Theory (Cheltenham: Edward Elgar, 1996), chap. 4, appropriately entitled “Social Justice: Looking after Our People.” 19 Emile Durkheim, The Division of Labor in Society, trans. George Simpson (New York: Free Press, 1964), 63–64. 20 Ibid., 127–29. 21 Cf. Ulrich K. Preuss, “National, Supernational and International Solidarity,” in Solidarity, ed. Kurt Bayertz (Dordrecht: Kluwer, 1999), 283. 22 Mouffe, “Politics,” 103. According to Craig Mataresse, Sartre’s idea of solidarity is based on the individual’s pledge not to betray or defect from society. Being based on choice, it is contrasted to Hegel’s communitarian and organicist view of political society, in which the social bonding is not mediated by a principle or a value. See Craig Mataresse, “Solidarity and Fear: Hegel and Sartre on the Mediations of Reciprocity,” Philosophy Today 45 (2001): 43. 23 I have dealt in detail with this two-tier structure of contract theory in the context of the majority principle. See David Heyd, “Counting Heads or Casting Lots: The Lottery Challenge to Majority Rule,” Iyyun 53 (2004): 3–26. 24 Charles Taylor has argued that an egalitarian democratic regime requires a higher degree of citizen solidarity than a traditional hierarchical society in which the issue of the minority acceptance of the majority decision does not arise. 25 Kurt Bayertz, “Four Uses of Solidarity,” in Solidarity, ed. Bayertz (Dordrecht: Kluwer, 1999), 3–28. This article is an important contribution to the taxonomy and analysis of the concept of solidarity. Justice and Solidarity 129 26 Brian Barry, Theories of Justice (London: Harvester, 1989), 181–82. This resolves the tension pointed out by Barry between Rawls’s commitment to impartiality on the domestic level and his acceptance of mutual advantage as guiding international relations. 27 Max Pensky, “Cosmopolitanism and the Solidarity Problem: Habermas on National and Cultural Identities,” Constellations 7 (2000): 66. 28 David Miller, “Community and Citizenship,” in Communitarianism and Individualism, ed. S. Avineri and A. de-Shalit (Oxford: Oxford University Press, 1992), 94. See also On Nationality (Oxford: Clarendon Press, 1995), 61–62. Andrew Mason takes issue with Miller and claims that a weaker sense of belonging, not necessarily “national,” is a sufficient condition for distributive justice. Andrew Mason, Community, Solidarity, and Belonging (Cambridge: Cambridge University Press, 2000), 134–35. 29 Craig Calhoun, “Constitutional Patriotism and the Public Sphere,” in Global Justice and Transna- tional Politics, eds. Pablo De Greiff and Ciaran Cronin (Cambridge: MIT Press, 2002), 290. Calhoun argues that the public sphere is constructed through discourse, that is, it is a product of “solidarity and choice.” I am told that a major factor in contemporary Swedish national identity is the commitment of its citizens to the Swedish welfare system and their pride in it. This would be a perfect example of the way justice plays a role in the creation of national solidarity. 30 Brian Barry, Culture and Inequality (Cambridge, MA: Harvard University Press, 2001), 80ff. 31 For a very compelling description of the multifarious ways in which citizens are united by “common sympathies,” see John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 23 and particularly note 17 in which he quotes extensively J. S. Mill on “Nationality” and its grounds. 32 See Lukas Meyer, “Justice, Intergenerational,” in Stanford Encyclopedia of Philosophy, ed. Edward Zalta. URL: http://plato.stanford.edu/entries/justice-intergenerational. 33 Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979), 128. 34 Thomas Nagel, in a recently published article, also wonders about the moral arbitrariness of local borderlines but ultimately sides with a form of non-universalistic, “associative” model of justice. See Thomas Nagel, “The Problem of Global Justice,” Philosophy and Public Affairs 33 (2005): 113–47. 35 Charles Beitz, “International Liberalism and Distributive Justice: A Survey of Recent Thought,” World Politics 51 (1999): 269–96. 36 Rawls, The Law of Peoples. 130 David Heyd http://plato.stanford.edu/entries/justice-intergenerational 
work_mditi344dbbnllpyv4p6zokjma	----	Microsoft Word - Access_to_Justice_and_Litigation_Saraceno_SSRN WP UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) UvA-DARE (Digital Academic Repository) Justice: greater access, lower costs Saraceno, M. DOI 10.2139/ssrn.2383864 Publication date 2014 Document Version Submitted manuscript Link to publication Citation for published version (APA): Saraceno, M. (2014). Justice: greater access, lower costs. (Amsterdam Center for Law & Economics Working Paper; No. 2014-01). University of Amsterdam. https://doi.org/10.2139/ssrn.2383864 General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. Download date:06 Apr 2021 https://doi.org/10.2139/ssrn.2383864 https://dare.uva.nl/personal/pure/en/publications/justice-greater-access-lower-costs(00b3b774-53f0-42f3-9667-aec2be978011).html https://doi.org/10.2139/ssrn.2383864 Electronic copy available at: http://ssrn.com/abstract=2383864 JUSTICE: GREATER ACCESS, LOWER COSTS Margherita Saraceno Amsterdam Law School Legal Studies Research Paper No. 2014-06 Amsterdam Center for Law & Economics Working Paper Paper No. 2014-01 Electronic copy available at: http://ssrn.com/abstract=2383864 Justice: Greater Access, Lower Costs Margherita Saraceno♣ January 21, 2014 Abstract Litigation imposes large costs on society; this justifies settlement considerations. In any case, access to justice is critical to socioeconomic development; as such, it needs to be balanced with litigation minimization. This study examines the tradeoff between litigation and access to justice and explicitly elucidates their relationship. In considering access issues, this study finds that the outcomes of policies that affect parties’ litigation decisions partially depart from those in the standard literature. For instance, increasing parties’ litigation costs does not necessarily promote settlement in the shadow of the court. Rather, effects depend on the elasticity of the demand for legal remedies. Furthermore, even while pushing litigation, enhancing access to justice is efficient as long as the claimant’s marginal propensity to litigate is smaller than the social opportunity-cost of access to justice. This finding offers further insight into the suitability of litigation subsidization through legal aid. JEL classification: K41. Keywords: access to justice, litigation, settlement, elasticity. _____________________________________________________________________ ♣Amsterdam Center for Law and Economics, University of Amsterdam and DEMS, University of Milano- Bicocca. Roetersstraat 11, 1018 WB Amsterdam, Netherlands. Phone: +31 (0)20 525 7164; Fax: +31 (0)20 525 5318; Email: m.saraceno@uva.nl. Corresponding author. This research has received funding from the People Programme (Marie Curie Actions) of the European Union's Seventh Framework Programme (FP7/2007-2013) under REA grant agreement n° 298470. I wish to thank Giuseppe Dari-Mattiacci, Iljoong Kim, Eric Langlais, Avraham Tabbach, Josephine van Zeben, Abraham L. Wickelgren, and the participants of the AEDE Conference 2013 (Granada), the CLEA Conference 2013 (Toronto), the GLEA Conference 2013 (Lugano), and the LIEN-Nanterre seminar (Paris) for the useful suggestions. The usual disclaimers apply. Electronic copy available at: http://ssrn.com/abstract=2383864 1   1. Introduction Disputes naturally emerge in every complex society. All of the parties to a dispute are directly affected by the events that gave rise to such dispute, and thus, they all tend to be interested in resolving them. However, disputes and their resolution are not purely private problems; they also constitute a social problem, as unresolved disputes produce negative externalities for the whole of society. In fact, when claimants simply “give up” because legal remedies are for some reason inaccessible, major social consequences emerge, including a sense of impunity, a lack of trust in institutions, underdeterrence, and increased uncertainty within the legal system. In extreme situations, when legal remedies are missing or inaccessible, conflicts can lead to severe consequences for the parties involved; widespread disorder and even violence can arise. Conversely, when access to justice is guaranteed, justiciable problems can be resolved through legal remedies such as in-court litigation or settlement (in a broad sense). For these reasons, effective and full access to justice is considered a crucial element in socioeconomic development and social security. Even the most developed legal systems struggle with ensuring citizens access to justice, since a significant number of claimants continue to be systematically excluded from legal remedies. (See, for example, the Access to Justice Initiative by the U.S. Department of Justice, the Initiative in Support of Access to Justice by the Department of Justice of Canada, the Australian Government Strategic Framework for Access to Justice, and the Access to Justice Agenda by the European Union Agency for Fundamental Rights.) Besides access to justice, policymakers have highlighted a further problem related to dispute resolution. In-court litigation is extremely costly for society, and excessive amounts of litigation result in judicial diseconomies and increased court workloads, eventually exacerbating inefficiencies. Despite the dearth of internationally comparable indicators concerning public expenditure vis-à-vis the judiciary, the public budget allocated to the various justice systems remains relevant.1 Policymakers are acutely aware of the need to ensure, and in some cases enhance, access to justice while keeping judiciary costs low. This problem is aggravated by the need to curb public spending in a time of financial crisis, since litigation accounts for most of the judicial spending. The academic literature usually analyzes these two problems—namely, obstacles to access to justice, and excessive litigation—separately, despite their evident interconnections. This study attempts to overcome this shortcoming in the literature by taking a unitary approach to the relationship between litigation and access to justice.                                                              1 For instance, in 2010, the annual approved budget allocated to the judiciary in the United States was USD 6.8 billion; across the European Union, the per-country average was EUR 2.8 billion, with a maximum of EUR 14.2 billion in the United Kingdom and a minimum of EUR 0.08 billion in Cyprus. Data are not directly comparable, since budgets can include a variety of statements depending on the country. See the Administrative Office of the U.S. Courts (2012) and CEPEJ (2012). 2   Starting from a standard law and economics setting (Bebchuk 1984; Nalebuff 1987), the problem of dispute resolution is modeled from both the micro perspective (i.e., parties’ choices) and the aggregated perspective of the social planner. The resulting framework allows us to analyze how policies—including administrative fees related to going to court, additional penalties and punitive damages, and legal aid—affect access to justice, litigation, and finally, the social costs of dispute resolution. The main results of this study can be summarized as follows. Dispute selection for trial. Taking into account the dimension of access to justice, the model used herein reconsiders some of the usual results found in the law and economics literature on litigation and the settlement rate. In particular, we find that higher claimant litigation costs discourage both settlement and litigation. Actually, every claimant who “gives up” because of excessive litigation cost neither settles nor litigates. Increasing the value at stake ambiguously affects settlement because of two combined effects: some claims shift from the sample of those settled to the sample of those litigated; others start to be settled, rather than remain unresolved. Finally, in some circumstances, the defendant costs play no role in determining the type of legal solution that is actually adopted. In particular, when the claimant must bear litigation costs that are relatively higher than those of the defendant, the selection of the preferred legal solution is driven mainly by the former. For claims in the shadow of the court, the model shows that changes in costs and amounts at stake affect settlement and litigation rates, depending on the elasticity of the demand for legal remedies. Litigation and access to justice. Improving access to justice will necessarily increase the number of litigation instances; this raises a relevant policy tradeoff. However, guaranteeing the access to justice of socially meritorious claims, even at the cost of pushing litigation, is always efficient. Intuitively, thanks to settlement, one additional claim’s access to justice results in less than one additional claim in litigation. Therefore, it is efficient to improve access to justice, as long as the claimant’s marginal propensity to litigate remains smaller than the social opportunity-cost of access to justice. Policy implications. The model used herein illustrates the tradeoff between promoting access to justice and discouraging litigation, through policies that result in larger litigation costs for claimants or an increased amount at stake (e.g., punitive damages). Additional penalties and fees levied on the defendant can be either wholly effective or ineffective, depending on the economic involvement of the defendant in the lawsuit. In particular, such policies can discourage litigation without affecting access to justice, except when the defendant must bear litigation costs that are so low that the decision to litigate or settle is in fact driven by the claimant. With respect to legal aid, the model shows that it is efficient to subsidize litigation as long as the standardized rate of litigation is lower than the social opportunity- costs of access to justice. 3   The remainder of this paper is organized as follows. Section 2 provides a brief overview of the literature. Section 3 presents the model and its policy implications, with particular attention being devoted to legal aid. Section 4 provides concluding remarks. 2. Background and related literature This section attempts to summarize briefly the main literature contributions, an understanding of which can be useful in framing the potential tradeoff between litigation and access to justice. Most studies generally focus either on litigation dynamics or on access to justice. The former topic constitutes a broad strand of law and economics literature, while the latter has mainly been investigated from either a comparative law or a political economy perspective. 2.1. Litigation versus settlement (in the shadow of the court) The traditional literature on litigation and settlement bargaining is vast and mainly based on a game-theory approach. A more recent and comprehensive survey of this topic is provided by Daughety and Reinganum (2012), who systematize a large number of contributions ranging from axiomatic models to those based on a strategic approach.2 Mainly, this kind of literature analyzes the reasons why parties in conflict fail in their negotiations and, subsequently, their cases go in trial. In fact, settlement acts as a sort of filter by selecting some of the cases for the court while resolving the others. Although litigation is able to produce positive externalities in terms of deterrence and reductions in law- uncertainty through precedent,3 it is generally considered wasteful, both for the parties involved and for society. For this reason, the literature mainly focuses on the capacity of bargaining to reduce the litigation rate.4 Pretrial bargaining has been modeled both as a sequential game (with one, multiple, or infinite rounds) and, less frequently, as a simultaneous game.5 According to the literature, the main source of settlement breakdown and consequent litigation is the persistence of the differential expectations of the parties on trial outcomes, even after bargaining interaction.6 This persistence has been explained while                                                              2 Axiomatic models usually assume perfect or imperfect but symmetric information. Solutions are typically cooperative. Strategic models emphasize the strategic interaction of parties, the Bayesian updating of their beliefs, and noncooperative solutions. See Cooter and Rubinfeld (1989). 3 See Che and Yi (1993); Dari-Mattiacci and Daffeins (2007); Landes (1971); Polinsky and Rubienfeld (1988); Posner (1973); and Shavell (1982), (1997), and (1999). 4 Besides the literature on settlement, see also contributions vis-à-vis alternative dispute resolution (e.g., Shavell 1995). 5 Settlement is often designed as an ultimatum game in one round, as seen in, for example, Bebchuk (1984), P’ng (1983), and Reinganum and Wilde (1986). On multiple-round settlement, see Spier (1992) and Wang et al. (1994). On infinite rounds, see Rubinstein (1982) and Yildiz (2003). On simultaneous games, see Daughety and Reinganum (1993) and Friedman and Wittman (2006). 6 In her extensive survey, Spier (2007) summarizes further explanations of settlement failure, including indivisible claims, nonpecuniary gains from going to trial, friction in the liability system, and the existence of multiple claimants. 4   assuming either different and inconsistent priors (typically in axiomatic models), or asymmetric information between litigants (in strategic models).7  A common lesson can be drawn from the broad array of specific models on settlement: both asymmetries between parties in terms of information or beliefs and low litigation costs give rise to a positive rate of litigation, and then a certain level of inefficiency owing to some use of a costly trial. From this perspective, any model that is designed as a one-sided, asymmetric-information ultimatum game seems to provide sufficiently robust and general insights (Daughety and Reinganum 2012, section 12.4).  Although the theoretical literature on settlement is immense, a great proportion of the studies therein assume that the claimant has a credible threat to litigate against the defendant. This means that the claimant can and wants to go to trial if settlement fails. In modeling, the capacity and will to proceed to court usually correspond to the fact that the claimant is, somehow, always able to pay for litigation and expects to obtain a positive expected value (PEV) from it. This common assumption is perhaps related to the fact that there is little consensus on how to distinguish socially meritorious lawsuits from those that are frivolous. Although resolving claims with negative expected value (NEV) may be socially valuable, the literature tends not to distinguish NEV cases and frivolous suits.8  Relatively few contributions relax the PEV hypothesis, and Schwartz and Wickelgren (2009) show that the game design strongly affects the possibility of settling NEV cases that will typically remain neither settled nor litigated.9  In a nutshell, the principal interest of the theoretical literature on litigation dynamics seems to be explaining failures of settlement in the shadow of the court—namely, when claimants can at least accomplish a legal remedy through a trial. This approach has generated a rich body of literature on procedural rules and settlement protocols that can influence case selection and hence the settlement rate.10 However, the standard literature seems to place little emphasis on the fact that in the real world many people cannot achieve any legal remedy, because they are unable to be in the shadow of the court.                                                               7 See Bar-Gill (2005), Cooter and Rubinfeld (1994), Gould (1973), Landes (1971), Priest and Klein (1984), and Posner (1973). See Chung (1996) about inconsistent priors. See also Gertner and Miller (1995), who provide a settlement protocol where divergent priors cannot be perfectly communicated and thus remain private information. Starting with P’ng (1983), a strategic approach involving the updating of consistent beliefs has been preferred in analyses of the strategies of rational agents. 8 On the distinction between PEV and NEV cases and meritorious and frivolous cases, see Bebchuk and Chang (1996, p. 372), Katz (1990, p. 3), Nalebuff (1987, FN 3), Polinsky and Rubinfeld (1993, p. 404), Shavell (1982), and Spier (2007). 9 They show that claimants with NEV cases are unable to settle their claims. Conversely, defendants can also resist litigation when they have an NEV defense. Other studies show that NEV claims can be settled in very specific cases: i) in screening models with uninformed defendants (Bebchuk 1988), ii) by making particular assumptions concerning legal costs (Bebchuk 1996, Katz 1990, and Rosemberg and Shavell 1985); and iii) by assuming a claimant’s commitment to proceed, even if his or her updated expected value is negative (Nalebuff 1987). 10 Reviewing this literature is beyond the scope of the current study. Some extensive surveys are available, including those of Daughety and Reinganum (2012), Hay and Spier (2002), and Spier (2007). 5   Besides the theoretical literature, several empirical contributions analyze dispute selection for trial. While theory helps us recognize that the cases that go to trial are filtered by settlement, the empirical literature provides evidence of this phenomenon. However, econometrics offers a very multifaceted picture of the determinants of settlement rate. On the other hand—and probably for data-reliability reasons—the empirical literature on settlement and trial also focuses on cases in the shadow of the court—namely, those that are typically already filed and then legally resolved, by either settlement or trial.11   Finally, the literature on dispute selection for trial apparently does not address the fact that some disputes are not resolved at all, by litigation or by settlement. Since cases where claimants surrender are simply excluded from the analysis, litigation represents a failure because settlement is almost always cheaper (for both the parties involved and for society) and more expeditious than a trial.   2.2. Access to justice The interest in settlement (and in other pre- or extra-judicial solutions) is overriding, especially in developed countries where the primary impression is that the average citizen has too much access to justice.12 In such cases, litigation is perceived as excessive, and the judiciary is costly for taxpayers, the courts are overloaded by an increasing backlog, and consequently the length of proceedings is often too long to be accounted for in the quality of sentencing. For instance, among European Union countries, the average public budget allocated to courts in 2010 was EUR 66 per capita (including public prosecution and legal aid) (CEPEJ 2012). Even though the productivity and efficiency of the courts has improved in some cases, in some countries, the length of proceedings remains impressively protracted. (In Italy, the average duration of a litigious divorce at the first-instance court was 538 days; in Spain, robbery cases have an average duration of 826 days.)13 In 2010, in the United States, the per-capita budget for the judiciary was about USD 22 (without including several items, such as legal aid). In the United States in that year, the problem of heavy caseloads is relevant, as the median of the duration of complex civil proceedings exceeded 687 days.14 Nonetheless, as has been asserted by several institutional contributions to the literature—including the most recent of FRA (2011) and CFCJ (2012)—and by the U.S. Department of Justice (2013), in the most advanced judicial systems, access to justice is critical. The U.S. Department of Justice, in fact, “established the Access to Justice Initiative (ATJ) in March 2010 to address the access-to-justice crisis                                                              11 See Cooter et al. (1982), Hylton and Lin (2010), and Priest and Klein (1984). See also Eisembergh (1990) and Fournier and Zuehlke (1989), each of whom suggest some testable models of settlement and case selection. On the possible determinants of settlement rates and success rates in trials, see Boyd and Hoffman (2012), Farber and White (1991), Gross and Syverud (1991), Huang et al. (2010), and Kessler et al. (1996). 12 See the extensive work of Rhode (2004), and also that of Ramseyer and Rasmusen (2010) and Silver (2002). 13 See CEPEJ (2012); the data refer to first-instance noncriminal courts. 14 Statistics are provided by the Administrative Office of the U.S. Courts on the institutional website. Duration refers to the median time interval in 2010 among civil cases, from filing to trial. 6   in the [American] criminal and civil justice system” (quoted from the ATJ ). Many common people are unable to access the judiciary, often for financial reasons, but there are also other barriers. Some of them decide to seek out unconventional solutions, while others simply give up.15 Despite awareness that access to justice is problematic, information about the extent of the problem, its determinants, and possible solutions remains fragmented. Although financial obstacles do not constitute the sole cause of unmet legal needs, academic contributions have mainly focused on the private costs of litigation.16 Not surprisingly, the most frequently debated of the policies used to address limited access to justice is that pertaining to litigation through legal aid. Recently, new actions like third-party litigation-funding and legal services deregulation have been suggested as ways of making litigation more affordable.17 From a socioeconomic perspective, access to justice has become a fundamental issue, and not only for reasons of fairness.18 Effective access to the judiciary is a leading component of a democratic society.19 Political economics has widely demonstrated—mainly empirically—the positive interdependence of economic and legal institutions. In particular, both adjudication and law enforcement through the courts and well-functioning legal institutions are critical to social and economic growth, since inequalities in terms of rights protections can cause institutional breakdowns and slow growth.20 In general, a lack of access to legal remedies should be a concern not only for those individuals who are unable to pursue their claims; it should be the concern of all citizens, as it affects the health and economic and social well-being of all. The tendency among unresolved disputes (especially in some areas of law) is for there to be an escalation in conflicts, which make resolution more and more difficult. Legal issues such as family matters, injuries from accident and crime, housing and                                                              15 See Coumarelos et al. (2006); Currie (2006), (2009a), and (2009b); Genn (1999); Kritzer (2008); and Rohde (2004). See also the following surveys: AM. BAR ASS’N (1994) and LEGAL SERVS. CORP. (2005) and (2009), with regard to the United States; Genn (1999), with regard to the United Kingdom; and Genn and Paterson (2001), with regard to Scotland. 16 On the obstacles to access to justice, see Genn (1999); Yates et al. (2001); and Kritzer (2008) and (2010). For a development perspective, see UNDP (2004) and (2010) and World Bank (2006). For a theoretical perspective, see also Galanter (2010), Fennel (2010), and Mnookin (1993). On the role of costs, see Buck et al. (2009); Hadfield (2000), (2009), and (2010); and Kritzer (2008) and (2010). 17 See Hodges et al. (2009). On legal aid, see Buchko et al. (2002), Garoupa and Stephen (2004), and Varano and De Luca (2007). Statistics on legal aid in European countries are found in CEPEJ (2012). On third-party litigation funding, see Daffein and Desrieux (2011), Fenn and Rickman (2010), Garber (2010), Molot (2010), and Rodak (2006). On the debate on the market organization of legal services, see Garupa (2013) and Hadfield (2000), (2008), and (2013). 18 Legal scholars have extensively debated the relevance of access to justice as a right that underpins all other rights. See Cappelletti et al. (1979) and Schlesinger (1988), each of whom provide seminal contributions on this topic. See also Alcock (1976), Mattei (2006), and Sommerlad (2004). 19 See Friedman (2006), Marshall (1950), UNDP (2010), and World Bank (2006). 20 See Acemoglu and Johnson (2005), Ellickson (1991), and North (1989). See also Glaeser et al. (2003) and UNDP (2010). 7   employment, fundamental rights like nondiscrimination and health, and disputes with public administrations can exacerbate both social exclusion and overall social costs.21 Scholars have recognized the potential tensions between effective access to justice for all, and the social and private costs related to litigation (Posner 1998; Shavell 1982). However, the theoretical law and economics literature barely works to disentangle the emerging tradeoff between favoring access to justice and curbing expensive litigation. Societies could reduce litigation costs dramatically by discouraging the use of the courts, but if this gives rise to numerous unresolved justiciable problems, its burden on socioeconomic development may be substantial. 3. The Model Given the relevance of the potential tradeoff between litigation and access to justice, the model below addresses the question of dispute resolution, from both private and social perspectives. 3.1. The social planner’s problem From an aggregated perspective, the “social planner’s problem” can be defined as follows. Disputes are assumed to be exogenously determined and can be resolved legally by litigation in court, or by settlement.22 Otherwise, disputes remain unresolved because claimants give up —or, they are resolved by unconventional means, including violence.  Litigation (l) is costly for society. Assume that, on average, resolving a dispute by litigation costs the taxpayers λ. This references the idea that litigation involves a transfer from litigants to the public administration and also that a net negative externality arises.  Alternatively, disputes can be resolved by settlement (s). This system of dispute resolution is assumed not to be costly for society. Otherwise, since settlement is simply less costly than litigation, the social cost of settlement is normalized to zero.  Finally, if disputes remain unresolved or are resolved by unconventional means ( ), the society bears a social cost that relates to the lack of legal solutions. The social cost of includes costs related to reduced social cohesion, diminished security, lower trust, a reduced sense of justice, underdeterrence, social exclusion, morbidity, and violence. On average, an unresolved/unconventionally resolved dispute costs society γ.                                                              21 See Genn (1999); Pleasence et al. (2004), (2006), (2007), and (2008); and Stratton and Anderson (2008). 22 Considerations of endogenous disputes would complicate our analysis, without being overly useful. J J 8   The total number of disputes is normalized to 1, without a loss of generality. Assuming that each “resolution” occurs with a certain probability, the social planner’s problem may correspond to the minimization of the following social loss function: It is evident that the first-best solution for the social planner would be that all disputes be resolved by settlement, with zero social costs. Nonetheless, two main points need to be noted. First of all, even if every dispute were settled (or in general, legally resolved out of court), a court-based system nonetheless needs to be guaranteed. Settlement can exist only as a complement to litigation, since the latter represents the last-resort mechanism in making bargaining agreements enforceable. Conversely, litigation requires no party’s agreement to work, since the winning party achieves an enforceable solution against the other party. Second, by setting procedural rules and the judiciary, the social planner can define the supply for legal solutions (both l and s). Note that in developed legal systems, the supply of legal remedies may be seen as perfectly elastic, at least in the short term. In fact, legal systems do not admit to rationing the supply of legal solutions to justiciable problems. Actually, for a given level of quality or fairness, a less- efficient judiciary can provide legal remedies at a higher cost and with longer delays, while efficient courts can provide solutions at a lower cost and more quickly. However, the social planner cannot directly determine how disputes are actually resolved. This choice in fact rests on how the parties in a conflict decide to resolve their justiciable conflicts. Therefore, to analyze the social planner’s problem, it is necessary to disentangle how the parties work to resolve it. 3.2. The parties’ problem From a micro perspective, the analysis focuses on a representative claimant–defendant pair that is involved in a (monetary) dispute. Both claimant K and defendant Δ are rational and risk-neutral.  The claim amount at stake is A; it is common and public knowledge. This is also the value that is awarded by the court in favor of K, and paid by Δ, if the former prevails in trial because the latter is recognized as liable by the judge. No judicial error can occur over both the magnitude of the claim and the liability of the defendant.  To litigate before the court, K bears a litigation cost CK = cKA, where cK ∈ 0,1 . Actually, rational K never proceeds to trial for cK ≥ 1. If called before the court for trial, Δ must pay a litigation cost equal to CΔ = cΔA, where cΔ ∈ 0,1 . Each party bears his/ her own litigation cost. Litigation costs are public and common knowledge; they include lawyers’ and court fees, taxes, and all the other costs that are privately borne by parties to    Pr Pr 0 Prl s J      9   litigate in court. As commonly assumed in the literature, settlement allows parties to save on litigation costs. The assumption that costs are proportional to the amount at stake is without loss of generality. Furthermore, litigation costs relate largely to the amount at stake rather than, for instance, the actual liability of the defendant (Trubek et al. 1983). In this subsection, no budget constraint restricts the parties’ choices; in subsection 3.4., a budget constraint is introduced for the claimant.  The interaction between the parties is characterized by one-sided asymmetric information concerning the liability of the defendant.23 In particular, K is the uninformed party,  while Δ in the informed party. K does not know if Δ is of a type that will be considered actually liable (type 1) or not (type 0); she only knows that the probability of facing a liable defendant (Δ₁) and prevailing in trial is p, while the probability of facing a nonliable defendant (Δ₀) and losing the case is (1 – p). Δ knows his own type. Note that p can be interpreted as the legal merit of the case. For the sake of simplicity, we assume that the defendant is either fully liable or not liable. This facilitates the interpretation of results, without loss of generality. As explained in subsection 2.1., one- sided asymmetric information models provide a litigation-settlement framework that is sufficiently robust to catch the many insights concerning the parties’ behavior. Since the study focuses on the access-to-justice problem for claimants, the preferred option is to assume that K is the uninformed party. 3.2.1. Access to justice and settlement bargaining Once the dispute arises, if K simply gives up and the dispute remains unresolved, she will not obtain any kind of relief, and both parties will have a null payoff.24 If K expects a positive outcome from litigation, she will access the judiciary and file a case against Δ. However, before the actual trial commences, it is appropriate to attempt a settlement, to avoid litigation costs. Consistent with some of the literature and without any original contribution from the perspective of the settlement process, bargaining is designed as an ultimatum-screening game (Bebchuk 1984; Nalebuff 1987). This allows for understanding several features of trial selection while being functional with regard to the analysis. In particular, the uninformed party—in this case, K—proposes a take-or- leave-it agreement to the informed party—namely, Δ. The take-or-leave-it bid for settlement implies that K commits to going in trial in the case of settlement failure—even if, after bargaining, the expected value of litigation becomes negative.25                                                              23 Saraceno (2008) provides a similar analysis that assumes inconsistent priors. 24 In the case of an unconventional solution, the payoff may differ from zero. However, for the sake of simplicity, this analysis focuses on cases where claimants give up and do not legally proceed. 25 Note that this is consistent with the literature on credible threat and settlement. See, among others, Nalebuff (1987), who investigates both the problem of credible threat and the commitment to go to court of a claimant who has a PEV suit. 10   Therefore, although parties can avoid a trial by settling the case, K wants to access the judiciary to legally resolve the dispute, but only if she has a positive prior on litigation outcome. This explains well the complementarity between litigation and settlement: the latter can be an alternative solution to the former only when litigation is feasible and represents a credible threat. In summary, K accesses justice iff her expected litigation outcome is positive, such that: . (1) When the access to justice condition (1) holds, K can make a credible proposal of settlement to the defendant. She prefers settlement only when she can bargain a settlement amount (S) greater than (or equal to) her expected litigation outcome—thus, when . Obviously, the defendant (Δ) accepts the settlement agreement only if S is smaller than (or equal to) his expected litigation outcome—thus, when: However, the claimant—who naturally wants to maximize her overall payoff—does not know the defendant’s type. Therefore, she faces the usual tradeoff between demanding a high amount that is more easily rejected, and being satisfied with a lower amount that is sure to be accepted. Two equilibrium solutions arise: a pooling strategy equilibrium, and a screening strategy equilibrium. If K demands (pooling strategy), the probability of rejection is null and the case is sure to be settled. Asking for less would be irrational for the claimant. If K demands (screening strategy), the proposal is accepted only by a type-1 defendant (liable)—therefore, with a probability p. Asking for more would be irrational, since the demand would be surely rejected. In the case of a pooling strategy, K obtains a payoff equal to S₀; otherwise, with a screening strategy, she expects to obtain . K’s optimal strategy derives from a comparison of the two possible payoffs. In particular, K opts for a screening strategy when the probability of facing a liable defendant is sufficiently high—that is, when: (2) Two relevant thresholds can be identified with respect to p. The first, the access-to-justice threshold ( ), concerns the possibility K accessing justice. The second, the trial-selection threshold— namely, —concerns the possible legal solutions (i.e. litigation, screening settlement, or pooling settlement) that can be adopted by the parties. ( )Kp c A Kp c ( )KS p c A  0 1 if = (1 ) if = S c A S c A          0S c A 1 (1 )S c A  1 - (1- ) KpS p c A (1 ) K K c c p c c       Kc   1(1 )K Kc c c c     11   In analyzing the thresholds, one must note that the former lies to the left of the latter iff . Therefore, two cases depending on the relative size of the parameters can be distinguished. Case I.  For , no access to justice  For ∆ ∆ , pooling settlement;  For ∆ ∆ , screening settlement with prob. p, litigation with prob. (1-p). Case II.     For , no access to justice  For , screening settlement with prob. p, litigation with prob. (1-p).   The two cases are illustrated in Figure 1. Cases with greater legal merit access justice more frequently than those with lower legal merit. As described in the literature, lower-merit claims accessing the judiciary are settled via pooling settlements (as in case I); those of “intermediate” merit are likely to be litigated, while those of high merit are probably settled via screening settlements. Figure 1. Dispute resolution: parameter thresholds (p). Concerning the parameter restrictions that determine the case I or case II typology, note that ∆ measures the overall litigation costs (for an amount-at-stake unit), while the ratio ∆/ can be interpreted as a measure of economic-power asymmetry between the parties. When parties are symmetric in terms of economic power (i.e., bear the same litigation costs), case I will include cases that are characterized by lower overall litigation ( ). On the other hand, when costs are relatively high ( ), disputes fall into the case II category.  K Kc c c c     12 1K K K K c c c c c c c          12 1K K K K c c c c c c c        Kc c 1 2  Kc c 1 2  12   For a given level of total litigation costs, case I corresponds to a relatively more powerful claimant who can litigate by paying a low share of the overall costs. Conversely, case II corresponds to a more powerful defendant who is able to stay in trial by paying a lower share of overall litigation costs. Figure 2 shows how the two cases are determined, for different litigation cost levels.26 Appendix A.1. further discusses how changes in the parameters shift the analysis from case I to case II, and vice versa. Figure 2. Litigation costs and analytical cases 3.2.2. Rates of access to justice, settlement, and litigation: Comparative statics The analysis below illustrates how changes in the relevant parameters affect litigation and access to justice for an overall unitary amount of disputes emerging within a society. The following exercise in comparative statics is carried out while assuming that each claimant–defendant pair has a dispute characterized by a certain legal merit p i.i.d. as a standard uniform distribution: 27 We define a number of measures that are relevant to policy implications:  J is the rate of access to justice. This is a measure of demand for legal remedies. Its complement to 1 measures the rate of disputes remaining unresolved (or unconventionally resolved).  l, s0, and s1 are the absolute rates of litigation, pooling settlement, and screening settlement, respectively. They naturally sum to J. As seen previously, two cases must be distinguished in line with the parameter restrictions. Table 1 provides the absolute rates for the two cases. All rates can be easily rewritten as a function of A. In addition, since the literature usually analyzes litigation and settlement rates by focusing on claims in the shadow of the court—namely, those that can actually access the judiciary—we define:  l/J and s/J as the standardized rates of litigation and settlement, respectively. They naturally sum to 1. Standardized rates can be calculated simply by dividing the corresponding absolute rates by J.                                                              26 The red curve corresponding to equation represents the frontier along which the two thresholds overlap perfectly. Along the 45-degree line, the costs are symmetric. 27 The use of the uniform distribution allows us to obtain very tractable results. For other symmetric probability distributions of p, the uniform distribution provides robust insights. Asymmetric distributions complicate the analysis without substantially jeopardizing general results.  0,1 .p u   12 1K Kc c c    13   Table 1. Absolute rates of access to justice, settlement, and litigation Case I.  Case II.  Tables 2 and 3 summarize the signs of the partial derivatives of the rates with respect to the model parameters. Uncertain signs are discussed in the text, as their analysis offers useful insights. Details are provided in Appendix A.2. Results of the comparative statics both support a number of Propositions (1– 4) and allow us to discuss a number of policies. Case I Regarding access to justice, it is easy to understand that access to justice positively depends on the amount at stake, while depending negatively on the claimant’s litigation costs. Given the allocation of litigation costs, the defendant costs do not influence access to justice. Comparative statics on the defendant’s litigation costs provides standard and intuitive results: high costs discourage (screening) settlement against litigation, in both absolute and standardized terms. Table 2. Case I: Effects of parameter changes on absolute and standardized rates A J - 0 + s0 - + - if s1 - - + s - + - if l - - + s /J + if + - if l /J - if - + if is the elasticity of J with respect to . Analysis of the claimant costs and the amount at stake shows less-than-standard but fairly sound insights. Increasing the claimant costs reduces both settlement (pooling and screening) and litigation   12 1K Kc c c      12 1K Kc c c            1 1 0 1 1 2 1 0 1 2 1 2 1 1 1 1 2 1 1 1 2 1 1 1 2 1 K K K K K K K K Kc c c Kc c Kc K K c c K c c K K K c c c c K J dp c c c s dp c c c c c s pdp c c c s s s c c c l p dp c c                                                           1 0 1 2 1 1 2 1 0 1 1 2 1 1 1 2 K K K Kc Kc Kc J dp c s s s pdp c l p dp c                Kc c  , 1 KJ c K c     , 1 KJ c K c     , 1 KJ c K c     , 1 KJ c     , 1 KJ c K c     , 1 KJ c    , K K J c K cJ c J     Kc 14   because then fewer claims can access justice. Increasing the amount at stake unambiguously increases both screening settlement and litigation; in fact, in such cases, more claims can access justice, and those characterized by a higher probability of success are settled for a screening amount. Litigation increases through two drivers: augmented access to justice, and a partial shift of some claims from pooling settlement to litigation. The remaining effects are ambiguous. Only under some parameter restrictions are the effects as expected. To discuss these restrictions, we also resort to the (absolute value of the) elasticity of the demand for legal remedies . This is a monotonically increasing function of , defined over the interval . Concerning the effects of changes in on the standardized rate of litigation (settlement), it is evident that increasing the claimant cost reduces both the proportion of disputes that go to trial and the proportion of disputes that can access justice. This combined action can increase or decrease the standardized rate of litigation (settlement). The standardized rates of litigation and settlement behave as usual—namely, the former decreases, while the latter increases by the same amount in —only when corresponding to , 1 ˆ( ) ( ) 1, , 2K J c K K c c c c c c            (details in Appendix A.2). Figure 3 (left) illustrates the parameter restriction in terms of costs. The dashed dark line in the graph represents the elasticity , ( )KJ c Kc , which can be measured along the y-axis. Figure 3. Effects of changes in on the standardized rates of litigation and settlement: Case I Figure 3 (right) shows the parameter restriction in terms of elasticity. In particular, the increasing curve represents the elasticity of the demand for legal remedies, along the frontier between case I and   1, 1K K J c K K K cJ c c c J       Kc  0,  Kc Kc 1 3c c   Kc 15   case II; it is also the upper limit of the elasticity for case I.28 The decreasing curve corresponds to the threshold ˆ( )c  , which is always (significantly) smaller than 1. The standardized rate of litigation (settlement) decreases (increases) with an increase in the claimant’s litigation cost, as usually described in the literature—but only if the demand for legal remedies is sufficiently inelastic (light-grey areas in both figures). It is evident that when , ( ) 1KJ c Kc  , the effect of reduced access to justice prevails, and the standardized rate of litigation increases (settlement decreases). Increasing the amount at stake ambiguously affects both the absolute rate of pooling settlement and the absolute rate of total settlement. In fact, a higher amount at stake both favors access to justice and shifts some claims from pooling to screening settlement and litigation. This happens because the claimant is asking for more to settle. On the other hand, a larger amount at stake spurs the defendant to settle. The combined effects can increase or decrease the absolute rates of pooling and total settlement. The absolute rate of pooling settlement decreases in A under the following parameter restriction: . The parameter restriction to have an absolute rate of settlement decreasing in A is stricter: . Analysis of these restrictions is not straightforward; details are discussed in Appendix A.2. These parameter restrictions on parties’ costs correspond to the elasticity threshold ˆ̂( ) 1 ,Kc c c    ; this implies that an increase in the amount at stake reduces the rate of pooling settlement only when a claimant’s litigation cost is sufficiently low—or, in other words, when the demand for legal remedies is inelastic. Therefore, when the demand is elastic (or there is unitary elasticity), an increase in the amount at stake enlarges the rate of pooling settlement. Note that the second parameter restriction is more binding than the first one; we can conclude that, when the demand for legal remedies is elastic (or there is unitary elasticity), the absolute rate of settlement is increasing in A. The intuition is clear: when the demand for legal remedies is elastic, the effect of augmented access to justice owing to a greater amount at stake prevails on the partial shifting from settlement to litigation. Concerning the standardized rate of litigation, note that a higher amount at stake enlarges both the proportion of disputes that go in trial and the proportion of disputes that access justice. This combined action can increase or decrease the standardized rate of litigation. The latter increases in only when . In terms of elasticity, this restriction corresponds to  2, 1 18 9 1 1 ( ) 1 2 4K J c c c c c c                (details in Appendix A.2.). Figure 4 (left) illustrates the parameter restriction in terms of costs. As usual, the dashed dark line in the graph                                                              28 Elasticity along the frontier has the equation . 2 K K Kc <(c +c )(1+c +c )    3 K K Kc <(c +c )(1+c +c )    A      1> 3 1 1- 3 1K K Kc c c c       0.5 0.5 4c c c      16   represents , ( )KJ c Kc , which can be measured along the y-axis. Figure 4 (right) shows the parameter restriction in terms of elasticity. Figure 4. Effects of changes in on the standardized rates of litigation and settlement: Case I The thinner line corresponds to the threshold . The standardized rate of litigation (settlement) is increasing (decreasing) in the amount at stake, only if the elasticity of the demand for legal remedies is sufficiently low (light grey areas in both figures). In particular, for case I, when , ( ) 1KJ c Kc  , then , ( ) ( ), ,KJ c K Kc c c c     . Therefore, when the demand for legal remedies is inelastic, the standardized rate of litigation (settlement) is increasing (decreasing) in A. When the elasticity is high and the defendant cost is sufficiently large (therefore, for values that are close to the frontier and between case I and case II), the standardized rate of settlement can be decreasing in A. The insight is intuitive: when the defendant incurs a high cost to stay in trial, he has a strong incentive to settle. Therefore, the augmented access to justice stemming from a higher amount at stake results in more settlement and less litigation. Case II Analysis concerning case II is simpler, since the effects of parameter changes on the relevant rates are unambiguous. As usual, low claimant costs and a high amount at stake increase access to justice. Table 3. Effects of parameter changes on absolute and standardized rates: Case II A J - 0 + s=s1 - 0 + l - 0 + s /J + 0 - l /J - 0 + A  Kc c 17   Nonetheless, even in this case, some of the current results depart from those in the standard literature. In particular, it is evident that defendant costs do not affect both absolute and standardized rates. Conversely, as in the standard literature, higher claimant costs and a lower amount at stake favor settlement against litigation for claims in the shadow of the court (standardized rates). On the other hand, higher claimant costs and a lower amount at stake discourage both settlement and litigation. 3.2.3. Propositions and remarks Given the results of the analysis in the previous subsection, it is possible to summarize the most relevant results through a number of propositions. Proposition 1. Claims characterized by a higher legal merit can access the judiciary more easily. The rate of access to justice is decreasing in the claimant cost and increasing in the amount at stake. It is not influenced by the defendant cost. Proposition 2. The absolute rate of litigation is decreasing in the claimant cost, increasing in the amount at stake, and negatively or not at all affected by the defendant cost (case I and case II, respectively). Propositions 1 and 2 illustrate the potential tradeoff between favoring access to justice and discouraging litigation through the enactment of policies, resulting in larger litigation costs among claimants. Furthermore, even if able to encourage access to justice, procedures that inflate the amount at stake of lawsuits must be carefully appraised, since they ultimately promote litigation. However, the aforementioned propositions also show that the tradeoff does not necessarily emerge. In particular, and different from the standard literature, the model used herein shows that the parties’ costs asymmetrically affect dispute selection for trial. First, higher defendant costs do not discourage access to justice, even as they potentially curtail litigation. In particular, larger defendant costs will reduce the litigation rate, provided the defendant is “sufficiently exposed” to the costs of going to trial (case I). On the other hand, when the defendant bears litigation costs that are low relative to the overall litigation costs (case II), marginal enlargements in his costs will not affect the litigation rates, since the rate of access to justice will remain the same and the selection of claims between (screening) settlement and trial will be driven only by the probability of claimant success. Proposition 3. Given (case I), the standardized rate of litigation (settlement) is decreasing (increasing) in the claimant cost and increasing (decreasing) in the amount at stake, only if the demand for legal remedies is sufficiently inelastic. The standardized rate of litigation (settlement) is always decreasing (increasing) in the defendant cost.   12 1K Kc c c    18   Given   (case II), the standardized rate of litigation (settlement) is decreasing in the claimant cost, increasing in the amount at stake, and not affected by the defendant cost. Proposition 3 shows that reductions in litigation costs and/or increases in the amount at stake do not necessarily promote the standardized rate of litigation. These results—which extend beyond those usually seen in the standard literature—are driven by the fact that here we take into account both litigation and access to justice. In particular, case I illustrates that the elasticity of the demand for legal remedies plays a key role in determining the effects of changes in parties’ costs and the benefit of trial on the standardized rate of litigation (settlement). Finally, policymakers with an interest in addressing the double issue of favoring access to justice while discouraging litigation should put additional effort into investigating the elasticity of the demand for legal remedies in different systems and for different legal matters. 3.3. Revising the social problem Given the model of the parties’ behavior presented in the previous subsection, we return to the social problem. Recalling that the overall amount of disputes emerging within society is standardized to 1, the representative dispute is assumed to be characterized as that between Δ and K. Note that parties’ private litigation costs are transfers (in favor of their lawyers, to pay litigation fees, etc.), but that from a social perspective, the average net externality stemming from the resolution of a dispute by litigation is λ. If the dispute is not legally resolved, society bears a net negative externality γ. Now, the social loss function (1) needs to be rewritten as: (3) It is straightforward that, for a given rate of access to justice, policies that are able to reduce the absolute litigation rate can unambiguously moderate the social costs of dispute resolution. More caution is required with policies that affect both rates. 3.3.1. Socially meritorious claims Recalling that and distinguishing between cases I and II, (3) can be rewritten as: .   12 1K Kc c c     1 Jl     1 KJ c        2 2 1 in Case I 1 in 1 2 2 Case I 1 I 2 J c J J J                19   In both cases, the first term of the sum represents the social cost of dispute resolution owing to litigation, while the second term is the social cost owing to the lack of legal resolution for justiciable problems. Since the first term is increasing in J and the second one is decreasing, favoring access to justice involves a tradeoff because of the increase in litigation. A simple condition is necessary (and sufficient) to having the social costs of dispute resolution decrease in J for both cases (see Appendix A.3.): (4) This condition provides some insights that are valuable from a policy perspective. First, when the social cost stemming from a lack of legal remedies is greater than or even equal to that borne by society for litigation, improving access to justice moderates the social costs of dispute resolution (note that is always smaller than 1). The intuition is simple: since not every justiciable problem shifted from the sample of those unresolved to the sample of those accessing the judiciary is resolved through litigation, improving access to justice unambiguously reduces the social cost of dispute resolution. Thanks to settlement, this is true even when the social cost stemming from a lack of legal remedies is equal to the social cost of litigation. Condition (4) also suggests that, in the debate on the concept of meritorious claims, it would be useful to distinguish between socially meritorious claims and privately meritorious claims. Socially meritorious claims can be identified as those disputes that are characterized by the claimants’ marginal propensity to litigate being smaller than the social opportunity-cost of access to justice ( ). Privately meritorious claims continue to be identifiable as those characterized by a PEV ( ). Naturally, the two concepts do not necessarily overlap. 3.3.2. Propositions and policy analysis Given the aforementioned analysis, it is possible to summarize the most relevant results of the model with respect to the social perspective, through a number of propositions and policy remarks. Proposition 4. Discouraging litigation without affecting access to justice is socially efficient. Note that this statement specifically concerns PEV lawsuits that are in the shadow of the court, since they can be actually litigated in the event of settlement failure. Proposition 5. Favoring access to justice always increases litigation; this can result in ambiguous social effects. It is always efficient to improve access to justice for socially meritorious claims, which are defined as those claims characterized by the claimant’s marginal propensity to litigate being 0 iff K l J c         Kl c     Kp c 20   smaller than the social opportunity-cost of access to justice. At least, this implies that it is always efficient to improve access to justice when the social cost stemming from a lack of legal remedies is greater than or even equal to the cost of litigation.   By combining the results of this subsection with those derived in the previous one, one can draw some policy implications. In particular, making litigation expensive for parties by charging claimants high litigation fees ambiguously affects the social cost of dispute resolution. Since this kind of policy discourages both litigation and access to justice, it exacerbates the tradeoff between the two policy goals. This sort of intervention could be useful only in a context of legal matters that involve very low social costs owing to a lack of resolutions and relatively high litigation costs. Conversely, higher litigation fees charged to defendants may reduce the expected social cost of dispute resolution by discouraging litigation, but while not affecting access to justice. However, this policy would also come with some limitations. The first limitation is of procedural fairness: it could be unfair to impose particularly high litigation costs on a defendant, who has in fact been forced into the process of defending him or herself. Discussions of fairness, however, extend beyond the present analysis. The second limitation stems from the fact that making litigation more expensive for defendants is ineffective when a pooling settlement is not feasible (case II). On the other hand, significant increases in defendant costs can make a pooling settlement feasible, finally resulting in less litigation. (On the shift from case II to case I, see Appendix A.1.) Concerning policies that affect the amount at stake, we mention only punitive damages and forms of civil or additional penalties. Punitive damages are paid by the defendant in favor of the winning claimant, with the aim of acting as a deterrent. They can be seen as an increase in A (perhaps they are also able to reduce γ). Punitive damages ambiguously affect the expected social costs of dispute resolution, given the usual tradeoff between the augmented rate of access to justice and the rising absolute rate of litigation. From a social perspective, such policies should be implemented only for socially meritorious claims. Penalties that are paid to the state—like civil or additional penalties—typically increase the amount at stake only for the defendant, without affecting the claimant’s amount at stake. They can be seen as an additional litigation cost paid by the defendant, but only in the case of the claimant’s success. They can discourage litigation without influencing access to justice. In addition, they might also be beneficial in terms of improved deterrence, perhaps reducing γ. 3.4. Claimants under budget constraints The above analysis completely ignores the possibility that the parties cannot pay their litigation costs. Since this study focuses on access-to-justice issues, the analysis below introduces a budget constraint for the claimant. On the other hand, the defendant continues to be assumed always solvent 21   (e.g., a large and professional defendant, or someone covered by insurance), and we choose not to consider “judgment proof” problems.29 Define ∈(0,∞) as K’s wealth normalized by A. In such a case, condition (1) is not enough to guarantee access to justice. An additional condition must be verified: the claimant’s wealth must be sufficient to cover the litigation cost ( ). No information asymmetry exists between the parties concerning their wealth.30 In summary, under the claimant’s budget constraint, the condition to access justice is: (5) Assume that normalized wealth among the population of potential claimants is a random variable distributed according to the density function h, with cumulative function H and independent of p. Note that the probability that the claimant is able to cover her litigation costs is , which is monotonically decreasing in and, recalling that , monotonically increasing in A. The rate of access to justice under a budget constraint— —is always smaller than that lacking a budget constraint. It is trivial to note that for a given probability of success, an unconstrained population of claimants can more readily access justice than a constrained one. Additionally, the absolute rate of litigation under a budget constraint— in case I and in case II—is always smaller than that without a budget constraint. On the other hand, the standardized rates of litigation (settlement) with or without a budget constraint are the same. These findings can be summarized by the following proposition. Proposition 6. The standardized rate of litigation (settlement) is not affected by the fact that the access to justice of some claimants is hampered by their budget constraints. Conversely, both the absolute rate of litigation and the rate of access to justice are smaller when there is a budget constraint for claimants.                                                              29 A judgment proof problem occurs when a defendant does not pay the appropriate damage award—for instance, because he or she goes bankrupt. See, for instance, Shavell (1986) and Summer (1983). 30 The capacity of the claimant to pay for litigation costs is obviously a further element that plays a role in the credibility of the threat to go to trial. Relaxing the hypothesis that the defendant knows the wealth of the claimant complicates the dynamics of settlement bargaining, without adding any insight useful to the aims of this study. Moreover, it seems sound to assume that the defendant can infer or even know the claimant’s wealth since in the real world, for instance, relations between parties are mediated by legal firms and lawyers that work as (costly) signals of claimant wealth. w Kw c K K p c w c    Pr( ) 1 ( )K Kw c H c   Kc K Kc C A     1 1K Kc H c      212 1 1K Kc c H c          212 1 1 K K c H c   22   Again, analysis of the absolute rates highlights the potential tradeoff between litigation and access to justice: less-stringent budget constraints result in more access to justice, but also in more litigation. On the other hand, since we consider exogenous litigation costs, once in the shadow of the court, “poorer” claimants are no different from “richer” ones, in terms of litigation rate. 3.5. Social tradeoff and legal aid Given the model of the parties’ behavior with budget constraints, the social loss function becomes: . (6) The social cost of dispute resolution when claimants’ behavior is restricted by budget constraints (6) is not necessarily larger than that lacking budget constraints (3). Actually, under budget constraints, there is less litigation—but also, fewer disputes are legally resolved. However, in comparing (3) and (6), it is easy to see that if (6.1.). This condition bears several implications. First, since the standardized rate of litigation is always smaller than 1, when the social cost stemming from a lack of legal remedies is greater than or even equal to the social cost of litigation, the inability of a part of the population to access the judiciary (owing to budget constraints) relates not only to a fairness problem but also to a degradation of social conditions because the social costs of dispute resolution are higher. This suggests that reforms and policies that aim to improve access to justice should focus on legal matters that when unresolved relate to high social costs (i.e., family law matters). From this perspective, legal aid as a form of litigation subsidization is an important issue. Legal aid is the main policy tool to arise in discussions concerning the issue of access to justice. Legal aid—as the provision of assistance to people who are otherwise unable to afford legal representation and access the court system—is specifically regulated in each country, and can differ widely in terms of coverage, amounts, and delivery models. Here, legal aid is assumed to take the form of a state fund that covers litigation costs for claimants who would otherwise be unable to access the judiciary. We choose not to consider potential abuses or moral hazard (i.e., legal aid does not determine any enrichment for recipients). In the case of a claimant’s success in trial, the legal aid amount is returned to the state. Thus, legal aid allows all claimants with insufficient wealth to proceed with their PEV claims. According to the above analysis, since we assume that legal aid is simply a transfer from the state to “poor” claimants, subsidizing litigation is socially efficient as long as the social opportunity-cost of access to justice is greater than the standardized rate of litigation. In particular, we can verify that it is socially efficient in subsidizing both all the socially meritorious claims falling into the case II category, and those included in case I that are characterized by a sufficiently inelastic demand for legal remedies ( ).      . . 1 ( ) 1 1 ( ) ( ) b c K K K H c J H cl H c          . .b c    l J    , KJ c   23   It can remain efficient in subsidizing socially meritorious claims that fall into the case I category, inasmuch as they are characterized by a higher elasticity of demand for legal remedies ( and as long as the standardized rate of litigation remains smaller than the social opportunity-cost of access to justice. (Proofs are provided in Appendix A.4.) Usually, however, legal aid is not a simple transfer; it is also costly for taxpayers. Below, the assumption of legal aid being a pure transfer is relaxed by assuming that legal aid is a net negative externality for taxpayers. The overall cost of legal aid for society is , since the cost of legal aid is equal to the claimant’s litigation cost, weighted by the probability of being “poor” and “losing in trial.” Therefore, the social cost of dispute resolution by using legal aid becomes: (7) It is straightforward to verify that for (7.1.). Condition (7.1.) is obviously stricter than condition (6.1.). Intuitively, when legal aid is socially costly, subsidizing litigation is efficient under a condition that is stricter than when legal aid is a simple transfer. However, condition (7.1.) can be easily interpreted, and it provides further insights. For a given standardized rate of litigation (which is always smaller than 1), it is efficient to remove financial obstacles to access to justice by providing socially costly legal aid, as long as the standardized rate of litigation remains smaller than the overall opportunity cost of access to justice (defined as the ratio of γ to the sum of both social and private litigation costs per dispute). Note that the left term of the inequality (7.1.) is increasing in p and decreasing in . Since claims that are characterized by a higher p both access justice more frequently and are litigated less frequently, condition (7.1.) is more easily satisfied for high-merit legal claims. A comparison of (6.1.) and (7.1.) shows that room for the socially efficient subsidization of litigation is reduced when legal aid is socially costly. However, improving access to justice through partial subsidization continues to be a suitable policy, especially if legal aid systems are able to select claims in terms of legal merit. This suggests that a suitable criterion by which to select the claims to be subsidized should work as a sort of legal-merit filter. Concerning litigation costs, note that lower costs do not necessarily satisfy (7.1.) easily, since the standardized rate of litigation can be either increasing or decreasing in (see subsection 3.2.). Therefore, once again, policies that affect claimant costs should be carefully evaluated. The following proposition summarizes the main insights of this subsection.  , )KJ c  ( ) (1- )K KH c l p c = ( ) (1- ) (1- )aid K Kl H c l p c J    . . >b c aid  >(1- ) K l p c J    Kc Kc 24   Proposition 7. When legal aid is a transfer, it is socially efficient in subsidizing socially meritorious claims that fall into case II, or those falling into case I that are characterized by a sufficiently inelastic demand for legal remedies. Socially meritorious claims falling into case I but characterized by a high elasticity of demand for legal remedies must be subsidized as long as the standardized rate of litigation is sufficiently low. When legal aid is a net externality for society, efficient subsidization is lower, but still positive. In general, it is socially efficient to subsidize litigation, as long as the standardized rate of litigation is lower than the social opportunity-costs of access to justice. Proposition 7 and the analysis provided in subsection 3.2. together suggest that some policies may be socially effective at best, and seriously detrimental at worst. For instance, for claims characterized by a very inelastic demand for legal remedies (i.e., falling into case I, with ), legal aid and increasing litigation costs for claimants represent a policy mix with serious adverse effects, as it would become more difficult to satisfy condition 7.1. Another possible example concerns claims that fall into case I: legal aid could be socially beneficial when defendants’ litigation costs are particularly high, since the right term of condition (7.1.) is decreasing in , even as the left term remains unaffected. Finally, any assessment of policies that influence the judiciary should be based on a careful appraisal of both their effects on the social opportunity-cost of access to justice and their influence on private parties’ behavior. Several policies determine the nature of complex interactions between litigation and access to justice; these interactions deserve particular attention, if unexpected and adverse social results are to be precluded. 4. Conclusions The dynamics of settlement and litigation in the shadow of the court have been discussed extensively by law and economics scholars. Although it is beneficial in terms of deterrence and reducing legal uncertainty by defining legal precedent, litigation is usually perceived as socially wasteful. This is certainly true if the alternative to litigation is another legal solution like settlement. However, if the alternative to litigation is that claimants fail to find any legal remedy to their justiciable problems—or even try to resolve their conflicts by unconventional means—then litigation may represent for society a suitable second-best option. This study investigates the social tradeoff that emerges between litigation and access to justice. While considering access to justice, the results of the current model lead one to question some of the standard insights of the law and economics literature on litigation and settlement rates. In particular, the results indicate that high litigation costs on the part of the claimant discourage both settlement and litigation, that high values at stake ambiguously affect settlement, and that defendant costs possibly have no role in determining the type of legal solution selected by parties. Finally, the effects of changes , KJ c    c 25   in costs and amounts at stake on the rates of settlement and litigation for claims in the shadow of the court depend upon the elasticity of the demand for legal remedies. The framework that derives from the model helps to clarify the effects of a number of policies, in terms of both litigation and access to justice. Policies that affect claimant behavior—such as those pertaining to litigation fees and punitive damages—often exacerbate the social tradeoff between litigation and access to justice. Policies that increase defendant costs—like high defense fees or additional penalties—can either reduce litigation without hampering access to justice, or be completely ineffective. Although improving access to justice will necessarily promote litigation, favoring full and effective access to the judiciary can be socially efficient. On this basis, the current study suggests the use of a new criterion by which to define and filter claims as socially meritorious. Socially meritorious claims are those where a claimant’s marginal propensity to litigate is smaller than the social opportunity-cost of access to justice. Guaranteeing access to justice of socially meritorious claims, even at the cost of promoting litigation, is always efficient. The current study also analyzed the social tradeoff between litigation and access to justice when claimants are hampered in their access to the judiciary because of budget constraints. Both the absolute rate of litigation and the rate of access to justice are smaller when some claimants are limited by their under budget constraints. From a social perspective, it is efficient to remove budget constraints by subsidizing litigation, as long as the standardized rate of litigation is lower than the social opportunity- costs of access to justice. In conclusion, although the model presented in this study simplifies assumptions within a setting that involves standard take-it-or-leave-it screening settlement bargaining, it provides a rather general framework. According to this framework, policymakers with an interest in reducing the social costs of dispute resolution should acquire a profound understanding of how policies influence both the rate of access to justice and the absolute and standardized rates of litigation. The same solution could be socially helpful in certain kinds of claims while being socially detrimental in other kinds of cases. In particular, the social opportunity-cost of access to justice, the claimants’ marginal propensity to litigate, and the elasticity of the demand for legal remedies become factors that allow us to determine the success or failure of a given policy.    26   References Acemoglu, D. and S. Johnson (2005). Unbundling institutions. 113, Journal of Political Economy, 949. AM. BAR ASS’N (1994), Legal Needs and Civil Justice: A Survey of Americans, Major Findings from the Comprehensive Legal Needs Study. www.abanet.org/legalservices/downloads/sclaid/legalneedstudy.pdf. Alcock P.C. (1976). Legal Aid: Whose Problem? 3, British Journal of Law and Society, 151-178. Bar-Gill, O. (2005). The Evolution and Persistence of Optimism in Litigation. 22, Journal of Law, Economics, and Organization 490-507. Bebchuk, L.A. (1984). Litigation and Settlement under Imperfect Information. 15, RAND Journal of Economics, 404- 415. (1988). Suing Solely to Extract a Settlement Offer. 17, Journal of Legal Studies, 437-450. (1996). A New Theory Concerning the Credibility of Success of Threats to Sue. 25, Journal of Legal Studies, 1-26. Bebchuk, L.A. and H.F. Chang. (1996) An Analysis of Fee Shifting Based on the Margin of Victory: On Frivolous Suits, Meritorious Suits, and the Role of Rule 11. 25 Journal of Legal Studies, 371-404. Boyd, C.L. and D.A. Hoffman. (2012). Litigating Toward Settlement. 3, Journal of Law, Economics, & Organization, 2-52. Buchko, K.A., Rekosh, E., and V. Terziev. (2002). “Access to Justice: Legal Aid for the Underrepresented” In Buchko, K.A., Rekosh, E., and V. Terzieva, (Eds.) Pursuing the Public Interest: A Handbook for Legal Professionals and Activists. New York: Columbia Law School. Buck, A., Day, L., Collard, S., Smith, M., and A. Patel. (2009). Outreach advice for debt problems: Research and evaluation of outreach services for financially excluded people. Legal Services Commission. Cappelletti, M., Garth, B., Weisner, J., and K.F. Koch. (1979). Access to Justice. HeinOnline. CEPEJ. (2012). European Judicial Systems. CEPEJ’s Studies No. 18. Council of Europe Publishing. CFCJ. (2012). The Cost of Justice. Weighing the Costs of fair and Effective Resolution to Legal Problems. The Canadian Forum on Civil Justice. Che, Y.K. and J. G. YI. (1993). The Role of Precedents in Repeated Litigation. 9, Journal of Law, Economics and Organization, 399-424. Chung, T.Y, (1996). Settlement of Litigation under Rule 68: An Economic Analysis. 25, Journal of Legal Studies, 261-286. Cooter, R.D., Marks, S., and R. Mookin. (1982). Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior. 11, Journal of Legal Studies, 225-251. Cooter, R.D. and D.L. Rubinfeld. (1989). Economic Analysis of Legal Disputes and Their Resolution. XVII, Journal of Economics Literature, 1067-1097. (1994). An Economic Model of Legal Discovery. 23, Journal of Legal Studies, 435-463. Coumarelos, C., Wei, Z. and A.Z. Zhou. (2006). Justice made to measure: NSW legal needs survey in disadvantaged areas. Access to justice and legal needs, vol. 3, Law and Justice Foundation of NSW, Sydney. Currie, A. (2006). A national survey of the civil justice problems of low and moderate income Canadians: Incidence and patterns. 13, International Journal of the Legal Profession, 217-242. (2009a). The legal problems of everyday life. In R.L. Sandefur (Ed.), Sociology of Crime, Law and Deviance, Vol. 12, 1-41. Bingley, UK: Emerald. 27   (2009b). A lightning rod for discontent: Justiciable problems and attitudes towards the law and the justice system. In A. Buck, P. Pleasence, and N.J. Balmer (Eds.), Reaching further: Innovation, access and quality in legal services, 100-114. Legal Services Research Centre. UK: The Stationery Office. Dari-Mattiacci, G. and B. Deffains. (2007). Uncertainty of Law and the Legal Process. 163, Journal of Institutional and Theoretical Economics, 627-656. Daughety, A.F. and J.F. Reinganum. (1993). Endogenous Sequencing in Models of Settlement and Litigation. 9, Journal of Law, Economics and Organization; 314-48. (1994). Settlement Negotiations with Two Sided Asymmetric Information: Model Duality, Information Distribution, and Efficiency. 14, International Review of Law and Economics, 283-98 (2012). “Settlement” in C.W. Sanchirico (Ed.) Procedural Law and Economics, Vol. 8 Ch. 15, The Encyclopedia of Law and Economics (Second Ed.), Edward Elgar Publishing Ltd. Deffains, B. and C. Desrieux. (2011).Financing Litigation: A Comparative Analysis,” Working Paper, University of Paris II. Eisenberg, T. (1990). Testing the Selection Effect: A New Theoretical Framework with Empirical Tests. 19, Journal of Legal Studies, 337-358. Ellickson, R.C. (1991) Order without law: How neighbours settle disputes. Harvard Univ. Press Farber, H.S. and M.J. White. (1991). Medical malpractice: An Empirical Examination of the Litigation Process. 22, RAND Journal of Economics, 199-217. Fenn, P. and N. Rickman. (2010) The empirical analysis of litigation funding. In M. Tuill and L. Visscher (Eds.) New Trends in Financing Civil Litigation in Europe: A Legal, Empirical, and Economic Analysis. 131-148. Edward Elgar Publishing. Fennell M.A. Using State Legal Needs Studies to Increase Access to Justice for Low-Income Families. 48, Family Court Review, 619-630. Fournier, G.M. and T.W. Zuehlke. (1996). The Timing of Out-of-Court Settlements. 27, RAND Journal of Economics, 310-321. FRA (2011). Access to justice in Europe: An overview of challenges and opportunities European. Union Agency for Fundamental Rights, Publications Office of the European Union. Friedman, B. (2006). Taking law seriously. 4, Perspectives on Politics, 261-276. Friedman, D. and D. Wittman. (2006). Litigation with Symmetric Bargaining and Two-Sided Incomplete Information. 23, Journal of Law, Economics, and Organization, 98-126. Galanter, M. (1983). The Radiating Effects of Courts. 117, Empirical theories about courts, 117-142. (2010) Access to Justice in a World of Expanding Social Capability. 37, Fordham Urban Law Journal, 115-128. Garber, S. (2010). Alternative Litigation Financing in the United States. RAND Institute for Civil - Justice Law, Finance, and Capital Markets Program, Occasional Paper, 2010 Garoupa, N. (2013). Globalization and Deregulation of Legal Services. Mimeo. Garoupa, N., and F.H. Stephen. (2004). Optimal Law Enforcement with Legal Aid. 71, Economica 493- 500. Genn, H. (1999). Paths to justice: What people think about going to law. Oxford: Hart Publishing. Genn, H. and A. Paterson. (2001). Paths to justice Scotland: What people in Scotland do and think about going to law. Portland, OR: Hart Publishing. Gertner, R.H. and G.P. Miller. (1995). Settlement Escrows. 24, Journal of Legal Studies, 87-122. 28   Glaeser, E., Scheinkman, J. and A. Shleifer. (2003) The injustice of inequality. 50, Journal Monetary Economics, 199-222. Gould, J.P. (1973). The Economics of Legal Conflicts. 2, Journal of Legal Studies, 279-300. Gross, S.R. and K.D. Syverud. (1991). Getting to No: A study of Settlement Negotiations and the Selection of Cases for Trial. 90 Michigan Law Review, .319-393. Hadfield G.K. (2000) The Price of Law: How the Market for Lawyers Distorts the Justice System. 98, Michigan Law Review, 953-1006. (2008). The levers of legal design: Institutional determinants of the quality of law. 36, Journal of Comparative Economics, 43–73. (2010). Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans. 37, Fordham Urban Law Journal, 129-150. (2013). The Cost of Law: Promoting Access to Justice through the Corporate Practice of Law. Bepress. Hay, B.L. and K.E. Spier. (1998). “Settlement of Litigation” in P. Newman (Ed.), The New Palgrave Dictionary of Law and Economics, Macmillan Reference Limited, Vol. 3, 442-451. Hylton, K.N. and H. Lin. (2010). Trial Selection Theory: A Unified Model. BU School of Law Working Paper, 10-12. Hodges, C., Vogenauer, S., and M. Tulibacka. (2009). Costs and funding of civil litigation: A comparative study. Oxford Legal Research Paper Series, Paper No 55/2009. Huang, K.C., Chen, K.P., and C.C. Lin. (2010). An Empirical Investigation of Settlement and Litigation - The Case of Taiwanese Labor Disputes. 7, Journal of Empirical Legal Studies, 786–810. Katz, A. (1990). The Effect of Frivolous Lawsuits on the Settlement of Litigation. 10, International Review of Law and Economics, 3-27. Kessler, D. (1996). Institutional Causes of Delay in the Settlement of Legal Disputes, 12, Journal of Law, Economics, and Organizations, 432-460. Kritzer, H.M. (2008) To Lawyer or Not to Lawyer: Is that the Question? 5, Journal of Empirical Legal Studies, 875-906. (2010). Examining the Real Demand for Legal Services. 37, Fordham Urban Law Journal, 255- 272. Landes, W.M. (1971). An Economic Analysis of the Court. 14, Journal of Law and Economics, 61-107. LEGAL SERVS. CORP. (2005). Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans 2005.www.lsc.gov/sites/default/files/LSC/images/justicegap.pdf (2009). Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low- Income Americans, 2009. www.lsc.gov/JusticeGap.pdf . Marshall, T.H. (1950). Citizenship and Social Class, and Other Essays. Cambridge: Cambridge University Press. Mattei, U. (2006). Access to Justice, Costs, and Legal Aid. XVII Congress of the International Academy of Comparative Law. Utrecht, The Netherlands Molot, J.T. (2010). Litigation Finance: A Market Solution to a Procedural Problem. 99, Georgetown Law Journal, (2010), 65-115. Mnookin, R.H. Why Negotiations fail: An Explorations of Barriers to the Resolution of Conflicts. 8, Ohaio state Journal on Dispute Resolution, 235-251. Nalebuff, B. (1987). Credible Pretrial Negotiation. 18, RAND Journal of Economics, 198-210. 29   North, D.C. (1989). Institutions and economic growth: an historical introduction.9, World Develop, 1319-1332. Pleasence, P., Balmer, N. J., and A. Buck, (2006). Causes of action: Civil law and social justice (2nd ed.). London: Legal Services Commission. (2008). The health cost of civil-law problems: Further evidence of links between civil-law problems and morbidity, and the consequential use of health services. 5, Journal of Empirical Legal Studies, 351-373. Pleasence, P., Balmer, N. J., Buck, A., O’Grady, A., and H. Genn. (2004). Civil law problems and morbidity. 58, Journal of Epidemiology and Community Health, 552-557. Pleasence, P., Balmer, N.J., Buck, A., Smith, M., and A. Patel. (2007). Mounting problems: Further evidence of the social, economic and health consequences of civil justice problems. In Pleasence, P., Buck, A., and N.J. Balmer, (Eds.), Transforming lives: Law and social process, 67-92. London: Legal Services Commission. P’ng, I.(1983). Strategic Behavior in Suit, Settlement, and Trial. 14, Bell Journal of Economics, 539- 550. Posner, R.A. (1973). An Economic Approach to Legal Procedure and Judicial Administration. 2, Journal of Legal Studies, 399-458. (1998). Creating a Legal Framework for Economic Development. 13, The World Bank Research Observer, 1-11. Polinsky, A.M. and D.L. Rubinfeld. (1993) Sanctioning Frivolous Suits: An Economic Analysis. 82 Georgia Law Journal, 397-436. (1988). The Deterrent Effect of Settlement and Trial. 8, International Review of Law and Economics, 109-116. Priest, G.L. and B. Klein. (1984). “The Selection of Disputes for Litigation. 13, Journal of Legal Studies, 1-56. Ramseyer, J.M. and E.B. Rasmusen. (2010). Comparative Litigation Rates. Harvard John M. Olin Discussion Paper Series, No. 681. Ringanum, J.F. and L.L. Wilde. (1986). Settlement, Litigation, and the Allocation of Litigation Costs. 17, RAND Journal of Economics, 557-566. Rhode, D.L. (2004). Access to justice. Oxford University Press, USA. Rodak, M. (2006). It’s About Time: A Systems Thinking Analysis of the Litigation Finance Industry and its Effect on Settlement. 155, University of Pennsylvania Law Review, 503-535. Rosemberg, D. and S. Shavell. (1985). A Model in which Suits are Brought for their Nuisance Value. 5, International Review of Law and Economics, 3-13. Rubinstein, A. (1982). Perfect Equilibrium in a Bargaining Model. 50, Econometrica, 97-110. Saraceno, M. (2008) Access to Justice and Litigation Trade-Off: A Theoretical Analysis. Paolo Baffi Centre Research Paper No. 2008-29; CLEA 2008 Meetings Paper. Shavell, S. (1982). The Social versus Private Incentive to Bring a Suit in Costly Legal System. 11, Journal of Legal Studies, 333-340. (1986). The Judgment Proof Problem. 6 International Review of Law and Economics, 45-58. (1995). Alternative Disputes Resolution: An Economic Analysis. 24, Journal of Legal Studies, 1- 28. (1997). The Fundamental Divergence between the Private and the Social Motive to Use the Legal System. 26, Journal of Legal Studies, 575-616. 30   (1999). The Level of Litigation: Private versus Social Optimality of Suit and of Settlement. 19, International Review of Law and Economics, 99-115. Schlesinger, R.B. (1988). Comparative law: cases, text, materials. Foundation Press. Schwartz, W.F. and Wickelgren, A.L. (2009). Advantage Defendant: Why Sinking Litigation Costs Makes Negative Expected Value Defenses, but not Negative Expected Value Suits, Credible. 38, Journal of Legal Studies, 235-253. Schweizer, U. (1989). Litigation and Settlement under Two Sided Incomplete Information. 56, Review of Economic Studies, 163-177. Silver, C. (2001). Does civil justice cost too much? 80, Texas Law Review, 2073-2114. Sommerlad, H (2004). Some Reflections on the Relationship between Citizenship, Access to Justice, and the Reform of Legal Aid. 31, Journal Law and Society, 345-368 Spier, K.E. (1992). The Dynamics of Pretrial Negotiation. 59, Review of Economic Studies, 93-108. (2007). “Litigation” in M. Polinsky and S. Shavell, (Eds.), Handbook of Law and Economics, Elsevier, 259-342. Stratton, M., and T. Anderson. (2008). Social, economic and health problems associated with a lack of access to the courts. Edmonton: Canadian Forum on Civil Justice. Summers, J. (1983). The Case of the Disappearing Defendant: An Economic Analysis. 132 University of Pennsylvania Law Review, 145-185 Trubek ,D.M., Sarat, A., Felstinert, W.L.F., Kritzert, H.M., and J.B. Grossmant. (1983). Costs of Ordinary Litigation. 31, UCLA Law Review, 72-127. UNDP. (2004). Access to Justice: Practice Note. United Nations Development Program Publications. (2010). Integrating Legal Empowerment of the Poor in UNDP’s work A Guidance Note. United Nations Development Program Publications. U.S. Deparment of Justice (2013). The Access to Justice Initiative of the U.S. Department of Justice. Access to Justice Accomplishments. Available at http://www.justice.gov/atj/accomplishments.pdf Varano, V. And A. De Luca. (2007). Access to Justice in Italy. 7, Global Jurist (Advances, art. 6). Wang, G.H., Kim, J.Y., and J.G. YI. (1994). Litigation and Pretrial Negotiation under Incomplete Information. 10, Journal of Law, Economics and Organization; 187-200. World Bank. (2006). World Development Report 2006: Equity and Development. New York: Oxford University Press Yildiz, M. (2003). Bargaining without a Common Prior - An Immediate Agreement Theorem. 71, Econometrica, 793-811. 31   Appendix A.1 Changes in the parameters can shift the analysis from case I to case II and vice versa. Note that the access-to justice threshold (hereafter, ) changes more sharply than the trial selection threshold (hereafter, ) for a given change in . For changes in , the does not change while moves. In addition, recalling that can be written as and as , changes in A move both the thresholds (both are decreasing in A). The following observations can be derived:  Significant increases in shift case I to case II. Significant decreases in shift case II to case I.  Significant decreases in shift case I to case II. Significant increases in shift case II to case I.  With respect to A, generally moves faster than . Actually, moves slower than iff , ( - setting overall costs equal to 1 this means ). This implies that significant decreases in A generally shift case I to case II.  Since case II corresponds to the parameter restriction , significant increases in A shift case II to case I ( ). Intuitively, it is possible understanding how changes in A shift the analysis from a case to the other moving on the Figure 2 from NE to SW for increases in A and from SW to NE for decreases in A. KJ c  (1 ) K K c c T c c        Kc c J  T  Kc K C A (1 ) K K c c c c      K K C C A C C      Kc Kc c c J  T  J  T  Kc c  iff 2( ) ( )²K K K T J c c c c c c A A               3 Kc c  / ( )K Kc c c c   J T A A        32   A.2 Partial derivatives of both absolute and standardized rates of access to justice, settlement and litigation are calculated with respect to the parameters of the model for cases I and II in Table A1 and A2, respectively. Table A1. Comparative statics: Case I Case I  Table A2. Comparative statics: Case II Case II        We focus on Table A1. Uncertain signs of case I are discussed below. First column. Signs of partial derivatives of the standardized rates of settlement and litigation with respect to K’s cost are uncertain . Focus on : denominator is positive and       0 2 1 3 0 1 3 1 1 <0 1 0 1 0 1 0 1 K K K K K K K K K K s c c c s c c c c c s ss c c c l c c c                                                       0 2 2 1 3 2 0 1 2 0 1 1 1 1 2 2 2 0 1 1 / / 0 K K K K K K K K K K K K K s J c c c c c c c c c c s J c c c c s J s J s J l J c c c c                                                  3 2 / 1 2 1 0 2 1 1 K K K K K l J c c c c c c c                              0 2 1 3 0 1 3 3 0 0 1 1 1 >0 1 0 1 1 0 1 1 0 1 / 0 / <0 / >0 / / 0 K K K K K K s c c c s c c c c c s ss c c c c c l c c c s J s J c c s J s J c c s J s J c c l J l J c c                                                                                            0 2 2 1 3 0 1 3 3 0 1 20 0 1 1 21 1 0 1 0 1 0 1 0 1 0 1 * * 0 * * 0 K K K K K K K K K K s c c c A A A c c c cs A A c c s s c c cs A A A A A c c c cl A A c c s J s J J s J A A A s J s J J s J A A A s J s J s J l A A A                                                                               1 2 0 / * * 0 J A l J l J J l J A A A                    1 0 / 1 > 0 2 / 1 < 0 2 0 K K K K K K l c c s J c l J c s c c                        0 0 0 / 0 s c l c s J c l J c                       2 0 1 0 1 0 2 / 1 0 2 K K K K K cs A A cl c A A s J c A A l J c A A                      / / 0 K K l J s J c c        / K l J c   33   the sign is driven by the numerator. . Recalling that and defining the absolute value of the elasticity of the “demand for justice” as , we can rewrite and then This means that the standardized rate of litigation decreases with an increase in claimant's litigation cost only if the demand for justice is sufficiently inelastic. For an elastic demand for justice, the standardized litigation rate always increases when claimants’ costs increase. Actually, increasing claimants’ costs reduce both the amount of disputes that go in trial and the amount of disputes that access justice. This combined action can increase the standardized (and observable) rate of litigation. The opposite reasoning is valid for the standardized rate of settlement. Third column. . Solving for , it becomes where . is represented on the -axes in the Figure A1 (green curve). Figure A1. Effects of changes in on the absolute rate of pooling settlement   0 for <1-3 / 0 for =1-3 0 for >1-3 K K K K c c l J c c c c c          1 KJ c  , K K J c K cJ c J       1 , ,1K KK J c J cc                    1 , 1 , 1 , 0 for < 1 2 <1 / 0 for 1 2 <1 0 for 1 2 <1 K K K J c J c K J c c c l J c c c c c                                         2 20 2 0 for < 1 0 for < 1 0 for < 1 K K K K K K K K K c c c c c s c c c c c A c c c c c                        c 1 2 0 1 2 1 2 0 for >{ ( ), ( )} 0 for { ( ), ( )} 0 for <{ ( ), ( )} K K K K K K c f c f c s c f c f c A c f c f c          2 2 1 2 1 1 ( ) (-2 (-4 1) - 2 1), ( ) - (2 (-4 1) 2 -1) 2 2 K K K K K K K K K K f c c c c f c c c c c c         1 2{ ( ), ( )} K Kc f c f c  Kc c A 34   The dashed dark line in the graph represents the elasticity of the demand for legal remedies that can be measured on the y-axis. An increase in the amount-at-stake decreases the rate of pooling settlement only when claimant’s costs are low enough (approximately smaller than 0.2)/the demand for legal remedies is sufficiently inelastic (approximately smaller than 0.3). When the demand is elastic (or with unitary elasticity), an increase in the amount-at-stake enlarges the rate of pooling settlement for every value of the defendant cost. Since , it is straightforward that the parameter restriction in terms of is more binding. To have a settlement rate decreasing in A, K’s cost/the elasticity of the demand for legal remedies has to be lower than that one to have a rate of pooling settlement decreasing in A. Therefore, an increase in the amount-at-stake reduces the rate of settlement only when claimant cost is very low/demand is strongly inelastic. Obviously, when . Finally, when the demand for legal remedies is elastic (or with unitary elasticity), an increase in the amount-at-stake enlarges the rate of settlement for every value of litigation costs. . Solving for , it becomes .   Recalling that , the parameter restriction can be written also in terms of elasticity of the demand for legal remedies: where . This means that the standardized rate of litigation increases with an increase in amount-at-stake only if the elasticity of the demand for justice is sufficiently low (not necessarily inelastic). For a sufficiently elastic demand for justice, the standardized litigation rate can be decreasing in A. The opposite reasoning is valid for the standardized rate of settlement.          3 3 3 0 for < 1 0 for < 1 0 for < 1 K K K K K K K K K c c c c c s c c c c c A c c c c c                        Kc 0 s A    0 0 s A                     0 for > 1 2 1 / 0 for = 1 2 1 0 < 1 2 1 K K K K K K K K K K K K c c c c c c l J c c c c c c A c c c c c c                        c                  1 1 1 0 for < 3 1 1- 3 1 / 0 for = 3 1 1- 3 1 0 for > 3 1 1- 3 1 K K K K K K K K K c c c c l J c c c c A c c c c                    1, ,1K KK J c J cc           , , , 0 for > 1 / 0 for 1 0 for 1 K K K J c J c J c l J A                  21 (c + 18c +9c +1+1) 1 2c +4        35   A.3. . Substituting by l and then by social cost of dispute resolution can be rewritten as for case I and for case II. Partial derivatives with respect to J are and for case I and II respectively. By replacing again in the expressions above, the conditions to have the social cost of dispute resolution decreasing in J are: and for case I and II respectively. The two conditions correspond to a unique condition equal for both cases: . A.4. Socially meritorious claims have been defined as those characterized by . It is socially efficient a complete subsidization when (6.1). For case II which is always larger than . Therefore it is always efficient subsidizing all socially meritorious claims falling in case II. For case I, is larger than for corresponding to (see A.1.). Therefore, for socially meritorious claims with elasticity of the demand for legal remedies smaller than  condition (6.1) is always verified. For claims falling in case I and characterized by elasticity equal to /larger than ,  condition (6.1) has to be satisfied in order to have efficient subsidization.  1 Jl     1Kc J     21 2 12 JJ c       2 1 1 2 JJ        32 0J c J            0J J        1 KJ c    31 Kc c J           1 Kc J        0 iff K l J c         Kl c     l J   1 K K l c c      1 2 1 Kl J c    3 1K Kl c c c           2 1 1 11 2 K K l J c c c       <1-3 Kc c  , <KJ c    
work_mdokwpphsbfspblams3siqmgiq	----	Conceptualising social justice – what constitutes pedagogies for social justice in HPE across different contexts? Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rasp21 Curriculum Studies in Health and Physical Education ISSN: 2574-2981 (Print) 2574-299X (Online) Journal homepage: https://www.tandfonline.com/loi/rasp21 Conceptualising social justice – what constitutes pedagogies for social justice in HPE across different contexts? Katarina Schenker, Susanne Linnér, Wayne Smith, Göran Gerdin, Kjersti Mordal Moen, Rod Philpot, Lena Larsson, Maureen Legge & Knut Westlie To cite this article: Katarina Schenker, Susanne Linnér, Wayne Smith, Göran Gerdin, Kjersti Mordal Moen, Rod Philpot, Lena Larsson, Maureen Legge & Knut Westlie (2019) Conceptualising social justice – what constitutes pedagogies for social justice in HPE across different contexts?, Curriculum Studies in Health and Physical Education, 10:2, 126-140, DOI: 10.1080/25742981.2019.1609369 To link to this article: https://doi.org/10.1080/25742981.2019.1609369 © 2019 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group Published online: 23 Apr 2019. Submit your article to this journal Article views: 952 View related articles View Crossmark data Citing articles: 2 View citing articles https://www.tandfonline.com/action/journalInformation?journalCode=rasp21 https://www.tandfonline.com/loi/rasp21 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/25742981.2019.1609369 https://doi.org/10.1080/25742981.2019.1609369 https://www.tandfonline.com/action/authorSubmission?journalCode=rasp21&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=rasp21&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/25742981.2019.1609369 https://www.tandfonline.com/doi/mlt/10.1080/25742981.2019.1609369 http://crossmark.crossref.org/dialog/?doi=10.1080/25742981.2019.1609369&domain=pdf&date_stamp=2019-04-23 http://crossmark.crossref.org/dialog/?doi=10.1080/25742981.2019.1609369&domain=pdf&date_stamp=2019-04-23 https://www.tandfonline.com/doi/citedby/10.1080/25742981.2019.1609369#tabModule https://www.tandfonline.com/doi/citedby/10.1080/25742981.2019.1609369#tabModule Conceptualising social justice – what constitutes pedagogies for social justice in HPE across different contexts? Katarina Schenkera, Susanne Linnéra, Wayne Smithb, Göran Gerdin a, Kjersti Mordal Moenc, Rod Philpotb, Lena Larssona, Maureen Leggeb and Knut Westliec aDepartment of Sport Science, Faculty of Social Sciences, Linnaeus University, Växjö, Sweden; bSchool of Curriculum and Pedagogy, Faculty of Education and Social Work, University of Auckland, Auckland, New Zealand; cDepartment of Public Health and Sport Sciences, Faculty of Social and Health Sciences, Inland Norway University of Applied Sciences, Elverum, Norway ABSTRACT The paper explores the concept of social justice in Health and Physical Education (HPE) as constituted and addressed across three different countries – Sweden, Norway and New Zealand – and how HPE teaching practices for social justice may be understood from regulative, normative and cultural/cognitive perspectives. Although much has been written about social justice in the field of HPE over the last three decades, there is little research that has examined how teachers operationalise teaching for social justice. Drawing on the experiences and insights gained from an international collaboration project, that sought to address this knowledge gap, this paper examines what constitutes pedagogies for social justice in HPE across different contexts. The aim of this paper is to discuss: (i) our conceptualisation of social justice; and (ii) how this can be understood in relation to HPE practice across different contexts. We conclude that what is regarded as important content for the teaching of social justice varies from one context to another although there are also similar approaches. Additionally, there is much to learn by seeing ‘it’, that is, the nature of social justice and how this is played out in school HPE – from the ‘others’ perspectives’. KEYWORDS Social justice; pedagogy; education; health; physical education Introduction Although much has been written about social justice in the field of Health and Physical Edu- cation (HPE) over the last three decades (e.g. Azzarito, Macdonald, Dagkas, & Fisette, 2017; Fernández-Balboa, 1997; Kirk & Tinning, 1990; Tinning, 2012), little research has examined how HPE teachers operationalise teaching for social justice. As recently pointed out by Hill et al. (2018, p. 470), ‘what is currently done in [HPE] classrooms in the name of education for social justice and the tangible outcomes of social justice-oriented education are often unclear’. ‘Education for Equitable Health Outcomes – The Promise of School Health and © 2019 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way. CONTACT Göran Gerdin goran.gerdin@lnu.se Department of Sport Science, Faculty of Social Sciences, Linnaeus University, 351 95 Växjö, Sweden CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 2019, VOL. 10, NO. 2, 126–140 https://doi.org/10.1080/25742981.2019.1609369 http://crossmark.crossref.org/dialog/?doi=10.1080/25742981.2019.1609369&domain=pdf&date_stamp=2019-04-26 http://orcid.org/0000-0003-2922-1993 http://creativecommons.org/licenses/by-nc-nd/4.0/ mailto:goran.gerdin@lnu.se http://www.tandfonline.com Physical Education’ (EDUHEALTH) is a collaborative research project between three uni- versities in Sweden, Norway and New Zealand that seeks to address this knowledge gap by examining HPE teachers’ operationalisation of teaching for social justice. Central to the project is an understanding of what constitutes as pedagogies for social justice in HPE. However, within the research project, this question has proven to be particularly chal- lenging. Indeed, as Zollers, Albert, and Cochran-Smith (2000) point out, researchers working together on a project focusing on social justice often have different definitions and interpretations of the meaning of this concept. Similarly, others argue (e.g. Bialystok, 2014; Randall & Robinson, 2016) that the definitions and practices of social justice are varied and that there is a lack of concensus about the meaning, but in general, social justice concerns democracy and social and political participation. Social justice can be viewed as both a process and a goal. Bell (2016) suggests that ‘the process of social justice should involve democracy and dialogue, enabled by opportunities to critically examine insti- tutional, cultural and individual oppression. Goals for social justice include empowerment, equal distribution of resources, and social responsibility’ (cited in Hill et al., 2018, p. 471). In the context of HPE, we draw on Tinning (2016) to point out that a process or pedagogy for social justice should embrace the ethics of the social justice agenda as inspired by the ‘big tent’ (Lather, 1998) of critical theories and approaches which can encompass and employ a range of interrelated teaching practices. For the purpose of examining HPE practice in the EDUHEALTH project, we therefore propose that pedagogies for social justice are those in which HPE teachers seek to recognise and act on social inequities rather than further marginalise groups of students due to e.g. gender, sexuality, ethnicity or socio-econ- omic standing, with the goal of more equitable health outcomes. Education and schooling is regulated by education acts, national school curricula and other policy documents. These documents are part of the educational context, but this same educational context is also significantly shaped by cultural traditions, values, and norms that constitute beliefs of what is regarded as relevant and useful knowledge. Unlike the official curriculum documents, these cultural traditions, values, and norms are seldom explicitly verbalised and therefore form part of the ‘hidden’ curriculum (Bain, 1985; Giroux & Penna, 1979). As Fernández-Balboa (1993) asserts, the hidden curriculum shapes and mediates not only values, but also experiences and practices. This hidden curri- culum is produced and reproduced by everyday practices and influences of what is possible in the name of education (Kvalbein, 1998). This means that issues of social justice may be expressed in official curricula and other policy documents but not in teaching practice, alter- natively they may be present in teaching practice but not explicitly mentioned in the curri- culum documents. Ultimately, what the students in school HPE learn about in the name of social justice ‘is a product of both the explicit and implicit messages relating to knowledge, values, norms, and professional dispositions’ (Ovens et al., 2018, p. 485). The different conceptualisations of social justice and the very nature of social justice issues in both the official and hidden HPE curriculum in each country became central to discussions when the EDUHEALTH research group met to focus on, analyse, and come to understand each participating country’s context – Sweden, Norway and New Zealand (for a full discussion of this, see Gerdin et al., 2019). The different conceptualis- ations have been the catalyst for this paper. The paper examines the concept of social justice in HPE as constituted and addressed across the three different countries by present- ing different aspects and understandings of social justice that have emerged during the first CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 127 one and a half years of the project. The paper explores how HPE teaching practices may be understood from regulative, normative and cultural/cognitive perspectives of social justice. The aim of the paper is thus to discuss: (i) our conceptualisations of social justice; and (ii) how these conceptualisations can be understood in relation to school HPE practice across different contexts. In order to inform our discussion we draw on insights gained so far in the EDUHEALTH project generated through studying policy documents, visiting different countries, school visits, observations and teacher interviews. We conclude that what is regarded as important content for the teaching of social justice varies from one context to another although there are also similar approaches. Additionally, there is much to learn by seeing ‘it’, that is, the nature of social justice and how this is played out in school HPE – from the ‘others’ perspectives’. Social justice and HPE in neoliberal times Like many other countries around the world in recent decades, to varying degrees, Sweden, Norway and New Zealand have been influenced by and have embraced neoliberalism. Neoliberal policies have enforced a movement towards individualism and a competitive market (Apple, 2001). Öhman, Almqvist, Meckbach, and Quennerstedt (2014) argue that HPE is often influenced by the neoliberal concept of individualism, in which students are seen to be responsible for their own health and non-achieving students are blamed for their ‘failure’ to achieve health. The collective social health of societies is often thought to be merely the sum of the parts, that is, if individuals look after themselves then society will look after itself. That is, neoliberal thinking positions individuals to take responsibility rather than society taking social responsibility as a means of equity and social justice. However, neoliberal approaches to health tend to negatively impact most on marginalised and/or minority groups in society (France & Roberts, 2017; Rashbrooke, 2013). Azzarito et al. (2017) further caution that school curricula based on the principles of global neoli- beralism give priority to competitive rather than equity-based goals, and this in turn leads to the marginalisation of the social justice project. Indeed, Bialystok (2014) claims that if social justice is not well defined from a critical perspective, neoliberalism may try to assim- ilate it as part of its own agenda. In the following sections we turn our attention to explicating and discussing our con- ceptualisation of social justice pedagogies. Social justice pedagogies Fernández-Balboa (2017) argues that a teacher who seeks a social justice agenda, begins by recognising and reflecting on social justice issues and examining their own identity while seeking to understand how they operate within normative, hegemonic structures. In their teaching they aim to challenge normative rationalising and notions of difference, and instead attempt to focus on similarities and shared understandings, the teacher treats knowledge as situated and selects curriculum content that reflects students’ personal and cultural identities. The perspectives and values of ‘otherness’ are integrated through- out the curriculum. A further review of social justice research shows that social justice ped- agogies may be enacted in various ways. 128 K. SCHENKER ET AL. One way of enacting social justice pedagogies involves the teacher explicitly teaching about social justice with an aim to increase student consciousness of and capacity for addressing social justice issues (Adams, Bell, & Griffin, 2007; Sturman, 1997). In practice, the teacher connects education and social action through (a) the teachers’ sense of them- selves as social activists; (b) the teachers’ intent to raise students’ awareness of inequity and injustice; and (c) the teachers’ intent to promote students’ social action (Dover, 2013, p. 93), impelling the students to take actions on or for injustice. Within this perspective, the teacher may include explicit instruction about oppression, prejudice, and inequity, specifically addressing issues of gender, social class, ethnicity, cultural inequity, ability/dis- ability, and democracy (Dover, 2013). Within the context of HPE, this may also include addressing issues relating to motor elitism and understanding bodies (Tinning, 2010). The lessons may challenge knowledge of ‘the other’ (e.g. representation of queers) and the processes that form the ‘other’ such as normalising behaviour as well as the use of language to discriminate by reinforcing dominant understandings. The teacher may use tools to critically analyse social change, emphasising critical thinking and inquiry, and expect students to be aware of and reflect on multicultural group dynamics (Hackman, 2005). The teacher may also promote social cohesion and students’ academic, civic, and personal growth while making connections between curriculum standards and social justice topics. Social justice pedagogies may also involve teaching for social justice through the actions and embodiments of the teacher (see Fitzpatrick & Russell, 2015). It is probable that such socially justice pedagogies will be evident in the actions, words, images, and language of the teacher or the learning environment. Doing social justice in education means that the teacher acknowledges the realities of day-to-day life that can impact on learning, and in response aims to create a supportive classroom climate that embraces multiple per- spectives. The teacher will reflect on assumptions about marginalised students, recognise harmful ways certain students are treated in class and aim to be responsive to all students’ needs, while discouraging discriminatory behaviours and language that serve to margin- alise some and privilege others. To reduce the otherness and strengthen the group, the teacher may provide support where others can receive advocacy and affirmation, and tailor teaching to the specific needs of the student population (Schenker, 2019). Within a HPE context, socially just pedagogies may include non-dominant forms of activity and knowledge that challenges dominant discourses, such as those of the traditional bio- physical scientific knowledge of the body (Tinning, 2010). They may also, for example, include teaching and learning about other cultural perspectives of health and ways of framing the body (Garrett & Wrench, 2011; Legge, 2010). One of the questions we as researchers in the EDUHEALTH project have addressed, is, are these above forms of social justice evident in the schools and classrooms of the teachers we have observed in the three countries? A reflection gained from examinations of each country’s national curriculum indicate that they might be but, our early interpretation is that the different national contexts have different social justice priorities, which, not sur- prisingly, are to some extent reflected in the teachers’ pedagogies. For the Norwegian and Swedish teachers, democracy, gender and ability issues seem to greatly influence the think- ing, and for the New Zealand teachers, post-colonial economic and social differentiation, indigenous rights and ethnic and cultural differences come to the fore. CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 129 Through implementing the EDUHEALTH project, it has become clear that one cannot tell with absolute certainty if education in general promotes social justice. Rather, what we have found, is that what may be regarded as important social justice pedagogy in one context might not be regarded as so in another. To better understand teaching for social justice in HPE, a nuanced, context specific analytical approach is required. In order to do so even the concept of social justice itself requires some consideration. Indeed, any quest for social justice requires the consideration of what social justice is, and for whom social justice is sought, before attempts can be made in its name (Hackman, 2005). Social justice – is it one concept or two? The concept of social justice is constituted by two interpretable words, ‘social’ and ‘justice’. In the following section we analyse the nature of these two words. We do this because we see the need to present a collective understanding of the concept of social justice so that it can be meaningfully used across the different settings we have investigated. To make the concept operationalisable in the different countries’ socio-political contexts, we need a more permissible definition. Being social and just are subjective terms, which is why, as we have found, they can have different interpretations in different settings. This is due to differences in understandings of the concept and the relevance of context to any conceptual understanding (Blackmore, 2013). That is, differences in societal rules, norms, cultures and cognitive understandings affect the meaning of social justice (Zollers et al., 2000). For instance, social justice may be inherently institutionalised in school and HPE practices and explicitly operationalised via the curriculum regulations and expectations in one context but not another and, equally, it may be bounded by the hidden practices of teachers within a particular school context but not another. It may manifest in different and sometimes contrasting outcomes when left unexamined. If social justice is used as part of a neoliberal agenda it can help support indi- vidualism by reaffirming the view of ‘individual responsibility rather than social respon- sibility as a means of equity and justice’ (Hill et al., 2018, p. 472). In the next two sections, we will discuss what we mean by ‘social’ and ‘justice’, to make our meaning of these two terms more explicit. The ‘social’ ‘Social’ refers to something that involves collective or group cohesion. It necessarily involves people interacting. To promote the ‘social’, one may act on social problems that address social cohesion issues, do something that has social impact or work for social change, towards a greater collective good (Alvord, Brown, & Letts, 2004; Light, 2008). However, there are philosophical and political values embedded in the concept (cf. Mair & Marti, 2006; Payton & Moody, 2008). The social acts are based on ethical motives and moral responsibility (Mair & Marti, 2006), which have politicial connota- tions. But, social acts can also be based on the need for personal fulfilment, which does not necessarily become part of a broader political agenda. A prescribed HPE curriculum may be understood as something that is socially good if its content is believed to strengthen the public social health of all citizens. A social focus in HPE may also 130 K. SCHENKER ET AL. concern problems associated with inequitable social health outcomes, that is, inequitable lifestyle or life chance outcomes for different individuals or groups who live together within a given community or society (Schenker, 2019). It is the view of the EDUHEALTH project researchers that HPE should have a social justice mission and when it does, it can impact and enhance the public social health as well as the physical health of our societies, even if these social ambitions are not explicitly expressed in national HPE curricula. Strengthening the public social health of all citizens is part of an agenda promoting democracy where the citizens, in different ways, can act on, and influence the social outcomes of a society (Fernández-Balboa, 1995). This rationale is an underlying belief for the EDUHEALTH project’s goal of identifying the nature of tea- chers’ pedagogies that address social justice issues. The rationale is supported by Dover (2013) who argues that social justice should be central to a HPE teacher’s pedagogy. Dover argues that raising students’ awareness of inequity and injustice and promoting positive social action are central tenets of teaching for social justice. Earlier, Wright (2004) argued that such emancipatory teaching practices have the goal of helping students identify, challenge, and transform existing unequal power relationships relating to physical activity and health. We add that school HPE is a forum to provide young people, regardless of e.g. their ability, sex, gender, age, culture, ethnicity or social background, with the knowledge and understanding of social health issues that may impact on them and others. Unfortunately, despite its potential, the way HPE is currently taught and conceptualised in schools in Sweden, Norway and New Zealand, it sometimes falls short of achieving such goals (e.g. Aasland, Walseth, & Engelsrud, 2016; Fitzpatrick, 2013; Öhman et al., 2014). Change may be possible with greater awareness and knowledge of pedagogical practices that provide students with the opportunity to exert influence in line with their own values and ambitions. Justice (and equity) ‘Justice’ is concerned with equity and the achievement of equitable outcomes (Deutsch, 1975). When referring to the social, justice takes account of social constructs such as gender, sexuality, socio-economics, and ethnicity, and often in the context of HPE physical culture, including one’s physicality and conception of the body (Tinning, 2010). Equity of access to any form of physical activity is a social justice issue close to the heart of HPE. Fraser (2001) sees parity of participation, that is, the provision to participate on equal terms as a central goal of HPE meaning, a fair teaching context is one where students are provided with equal opportunities to learn and participate. In this way justice is linked to the notion of fairness and equal opportunity. In schools this means that every child or adolescent should have the right to an equivalent education and receive the necessary support to enable them to participate and achieve the goals of education. In this sense, equivalent education may mean teaching some students differently based on their specific needs. This is justice as expressed within the principles of equity and fairness. Participating on equal terms in education addresses equal opportunities as well as equi- table outcomes. This may mean that the teacher has to compensate or renegotiate the school subject to account for e.g. gender, social background or ethnicity differences for the development of students. It may also mean that society or the school has to redistribute resources to reduce social inequities among student groups. CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 131 Through the EDUHEALTH project, we have become acutely aware that the different countries face to some extent different challenges in their bid to address fairness and equity in their own society. We have found it necessary also, to reflect on social justice issues across three layers of analysis, the macro, meso and micro, the macro being national socio-political factors, the meso being institutional (school) policies and practices, and micro being individual, teacher and/or subject specific pedagogies or curriculum factors. This has been necessary to gain a more informed understanding of the influence of context in this cross-nation project. The project has allowed us to cast foreign eyes on the practices of each country and in this way look ‘as outsiders’ through different lenses at the nature of social justice practice in each context, as well as this we have grasped the ‘insider perspectives’ on own context. The relevance and challenges of ‘insider-outsider perspectives’ in qualitative research, has been debated for decades (see, for example, Bishop, 2005). The benefit is the ability to connect the two, more precisely; while some in the research team are the insiders and others the outsiders, these roles change when we alternate between contexts (e.g. countries). The need for context specific examination of social justice practices To be able to discuss our conceptalisation of social justice there is a need for context specific examination of social justice practices. Through our collective examination of each country’s curriculum, school legislation, discussions within the project group and school visits in each country, we have been able to see how the two Scandinavian countries differ from New Zealand, how each frame ‘social justice’ differently at the macro level and how this influences HPE practice and leads to different implications at the micro level. In Norway and Sweden, there is a tension between the social-democratic popular movement agenda built up during the 20th century by voluntary work and it newly arrived competi- tor, neoliberalism. In New Zealand, although the greatest tension is also generated by neo- liberal public policies that give rise to inequitable outcomes, there is an added dimension focused on the emancipation of marginalised groups, particularly indigenous Māori due to neocolonialism in New Zealand society. While the social policies aim to promote equal treatment for all in Norway and Sweden, the bicultural social issues in New Zealand demand special treatment. This means that despite the shared neoliberal context, social justice is expressed differently in the different national contexts. Our experience of social justice HPE pedagogies across the three contexts tells us that we firstly need to be informed about social policies and practices at the other two under- pinning more encompassing levels of society, that is those of the school and nation itself, and therefore our analysis takes account of these different levels of influence. Figure 1 demonstrates these three different analytical levels: country, school and HPE lesson. In the following we will present a way to analytically conceptalise social justice in relation to HPE practice in different countries. We have drawn on Scott (2007), who describes institutions as social structures made up of symbolic elements, social activities and material resources. These social structures are composed of ‘regulative’, ‘normative’ and ‘cultural/cognitive’ elements. The regulative elements are predominantly rules that require enforcement. The normative elements consist of the norms and values that under- pin how things should be done and legitimise the means of accomplishing them. The cul- tural/cognitive elements are informed by the shared conceptions and social construction 132 K. SCHENKER ET AL. of meaning. These three elements are expressed in varying ways in different contexts. Different societies may be more or less dominated by different elements, and they may vary over time in terms of which elements are dominant. Social justice in schools and HPE is enabled and enacted in accordance with all three elements, that is, its laws, norms, and cultural/cognitive contexts. Using the Swedish model as an example, Swedish society is governed by national regulatory acts based on the rules of democracy. In Sweden, the national school system is underpinned by these same democratic values. According to the Swedish national curriculum (Swedish National Agency for Education, 2011), all pupils have equal rights to a free education despite their geographical place of residence or socio-economic conditions. Swedish schools are framed by a national curriculum that contains three parts; (1) the fundamental values and tasks of the school, (2) the overall goals and guidelines for education and (3) the syllabuses which are supplemented by knowledge requirements. The fundamental values of the school can be understood as part of the normative elements, e.g. all who work in the school should ‘contribute to developing the pupils’ sense of togetherness and solidarity, as well as a sense of responsibility for people outside the immediate group’, ‘be permeated by the spirit of solidarity between people’, actively resist discrimination and degrading treatment of individuals or groups’, ‘show respect for individual pupils, and carry out the daily work in democratic ways’ (Swedish National Agency for Education, 2011). Correspondingly, within the HPE context, these principles of democracy are enacted in the lived experiences of the teachers and students. Each pupil is encouraged to discover their own uniqueness as an individual and thereby be able to participate in society by giving of their best. In HPE, teachers are expected to create the conditions for all pupils to regularly take part in phys- ical activities and contribute to the development of good physical awareness and a belief in their own physical capacity. In their bid to provide equal opportunity for all pupils, tea- chers are not allowed to demand that the students bring their own equipment, such as Figure 1. The three different contextual levels of where social justice pedagogies are enabled and enacted. CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 133 skates, skis, bicycles or rainwear, because it would require additional expenses for the students. Typically, when expressed as the cultural/cognitive element, social democracy centres on the teacher’s actions, choice of content, and ways of being a teacher (cf. Schenker, 2019). For example, it may be exemplified by teachers’ decisions to negotiate the power distribution within a class in a way that gives all pupils the opportunity to participate and succeed equally in HPE. Social justice may be foregrounded by encouraging students to help others and build a sense of community. The lived pedagogy may be enacted by strengthening the group, strengthening individuals and distributing power ‘equally’. It might concern how the logics of various games promote different pupils or how the teacher arranges and groups the class (Schenker, 2019). Our multi-level (societal, institutional and individual) lenses, as well as the regulative, the normative and the cultural/cognitive elements have assisted us to better understand the complexities of examining social justice across different contexts. The ‘regulative’ and the ‘normative’ elements are naturally anchored in societal and political settings and are influencing the school as well as the school subject, while the cultural/cognitive elements are more obviously expressed within the school and the school subject. However, it is also natural that these school and teacher practices are grounded in national cultures and values. Because there are more similarities than differences between Norway and Sweden, we have chosen to group them as the Scandinavian countries to compare them with the New Zealand context. Since we have experienced that these two socio-pol- itically different contexts to some extent have different issues at the societal level, which play a key role in shaping social justice pedagogies in HPE practice, we will now highlight and discuss different aspects of the Scandinavian and New Zealand contexts. Social justice in a Scandinavian context In a Scandinavian context, social justice is related to social welfare policies involving public health, democracy, and solidarity (cf. Norberg 2011). In Sweden, the discussion about equity and fairness can be traced back to the 1940s, in connection to the reforms of the Swedish school system into a school for all. Equality was a guiding principle in promoting the development of the country and strengthening solidarity while transforming the State into a welfare society (Axelsson & Qvarsebo, 2011). Every child was equally entitled to an education, regardless of where they lived, the state of their parents socio-economical status, gender and ethnicity. This implied that the students’ backgrounds were irrelevant because everyone was given the same chance to succeed and to get further education. The education system became centralised to make this happen. But in the 1970s, the critique of the system started to grow. Decentralising reforms followed and equality became equity, assisted by compensatory strategies, where ‘pedagogies of the same’ became ‘pedagogies of difference’ (cf. Wahlström, 2014). The meaning of equality and equity were differentiated so that equity concerned children’s equal opportunities in education, regardless of factors of gender, ethnicity or social background. In the 1980s and 1990s, with reforms of ‘freedom of choice’, every child was then to be provided with equal opportunities to achieve the goals of the education. (see von Greiff, 2009). The Education acts of both Norway and Sweden emphasise the importance of the school system resting on fundamental democratic values and equitable access for all. 134 K. SCHENKER ET AL. From a regulative perspective, in the two Scandinavian countries education is free and schools are not allowed to have activities that are subject to supplementary fees. Without access for all, the democratic development and potential social incorporation into society may not occur. A similar argument can be applied to pedagogies for social justice in HPE. It is important to provide access for all students to enable the lived democ- racy and a socially inclusive HPE context that is anchored in social justice (cf. Fraser, 2001). To enact democracy, it is necessary to include all students in decision-making in HPE. Our experiences and insights from the EDUHEALTH project so far support this stance. We have seen how the social justice pedagogies of the HPE teachers in Sweden and Norway are often based on strong social democratic principles. For example, HPE teachers in both of these contexts prioritise learning activities that endeavour to ensure that HPE provides appropriate learning opportunities for all ability groups and remove structural constraints that can potentially limit student participation. In contrast, individual cogni- tive-cultural beliefs of the importance and valuing of competitive sport that privilege some and marginalise others are also evident. Swedish HPE has for a long time reproduced values and knowledge that appeals to students who have experience and enjoyment of competitive sport (Säfvenbom, Haugen, & Bulie, 2015). Students with the greatest need to experience and learn about health and physical activity are therefore not always attracted to the school subject as much as others and as a result come away with negative learning experiences (Säfvenbom et al., 2015). Social justice in a New Zealand context Education in New Zealand from the 1930s to the 1970s was also based on socially demo- cratic principles, primarily that of equal educational opportunity. This was largely due to educational reforms that were introduced during the late 1930s by the Labour Govern- ment, under the guidance of the Director of Education, Clarence Beeby who introduced a national policy that stated: every person, whatever his [sic] level of academic ability, whether he be rich or poor, whether he live in town or country, has a right as a citizen, to a free education of the kind for which he is best fitted and to the fullest extent of his powers (McDonald, 2002, p. 26). However, the social-democratic nature of society and education changed during the reforms of the mid to late 1980s and 1990s when ‘Tomorrows schools’ based on the free market policies of neoliberalism, were introduced. Today, the free market policies of competitive schools endure and in part serve to strengthen the social inequalities of today, including neo colonialism. The outcome is that Māori as well as other minority ethnic groups such as Pasifika students continue to be marginalised in the school system and suffer poorer educational outcomes than their Pākēha counterparts. The colonial history of New Zealand and an increasingly diverse multi-ethnic, multi- cultural, and multi-lingual society have further impacted on the nature of schooling and how the regulative, normative and cognitive-cultural elements impact on social justice pedagogies in New Zealand education (cf. Scott, 2007). New Zealand’s colonial history and the ongoing political dominance of European New Zealanders, with a corre- sponding marginalisation of indigenous Māori people, are primary considerations that CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 135 surface to dominate social justice practices in New Zealand society and schools, today. New Zealand continues, long after the physical act of colonisation, to try to redress ongoing colonising practices, such as language, culture, and land rights discrimination. A current renaissance of Māori values and culture has given rise to greater recognition of ‘Māori and Pākehā (European colonisers) as Treaty partners1, where both supposedly have equal rights, including the right to equitable social, socioeconomic, and political out- comes. Despite the neoliberal school governing structures, the New Zealand public school curriculum, aims to promote a social state where all cultures are valued for the contri- butions they bring. One approach to address social justice in New Zealand schools, is to publish the school curriculum in both English and Māori languages. According to the vision, ‘the two docu- ments will help schools give effect to the partnership that is at the core’ of the nation’s founding document, Te Tiriti o Waitangi/The Treaty of Waitangi’. At a normative level, the New Zealand HPE curriculum explicitly mentions the need to develop a sense of social justice among the values and attitudes that are at the heart of the school subject (New Zealand Ministry of Education, 2007). Within this, the Māori health philos- ophy of Hauora, which includes spiritual, mental, social, and physical well-being, is emphasised. In the curriculum, social justice is a subset of a socio-ecological perspective, where students are encouraged to look ‘beyond themselves and work towards a future that encourages people to question, to challenge and, where appropriate, to take action’ (New Zealand Ministry of Education, 2007) and to influence and support others. In the New Zealand context, we have observed teachers focused on addressing neoco- lonising disparities, ethnic and cultural marginalisation and privilege. These issues have underpinned much of the HPE teachers’ social justice pedagogies, while the two Scandi- navian countries have observed an opposite approach. For example, New Zealand HPE teachers may use indigenous language and traditional games, and purposefully structure practical activities and units of work to make them more inclusive for culturally margin- alised students. In Norway and Sweden, however, the teachers would rather try not to focus on aspects of gender and ethnicity, they are interested in how to motivate each and every student regardless of gender, or ethnicity etc, in the belief that everyone should be treated as a person in its own right. In summary, the differences in pedagogies for social justice are evident both in the official curriculum documents and in HPE practice. These differences reinforce suggestions that pedagogies for social justice are partly enabled and constrained by the contexts in which they are practised (Gerdin et al., 2019) and cannot solely be conceptualised as a single pedagogy that can be enacted without regard for the learning context (Tinning, 2010). Conclusion This paper has examined what constitutes pedagogies for social justice in HPE by present- ing several factors relating to social justice that have given cause for the research team to reflect during the initial stages of the EDUHEALTH project. The first issue was the need for us to come to a shared understanding of what we mean by teaching for social justice, and this in turn required an analysis of the terms social and justice. A discussion of social justice and early insights gained from the project showed contex- tual differences about how social justice in HPE may be understood. This created a need to 136 K. SCHENKER ET AL. introduce an analytic lens to examine societal policies and practices as they relate to our understanding of social justice, and this is why we have come to draw on Scott’s (2007) three forms of social structures, the regulative, normative and cultural/cognitive. Social justice is context normative, meaning it might not mean the same thing for those who sit outside that context. As we have found in some contexts, in New Zealand for example, social justice pedagogies start by recognising students as raced, gendered and classed individuals while in Sweden and Norway, such pedagogy is problematic at the reg- ulative as well as the normative level. In Sweden and Norway it is believed that to address an individual based on their eth- nicity could create conflict among the people instead of unifying them. The Scandinavian approach is rather to provide equal opportunities in education, regardless of the students backgrounds. However, in New Zealand social justice and democracy are enacted when we come to accept and embrace ethnic, cultural and linguistic differences among those who call themselves New Zealanders. As such, New Zealanders are encouraged to value their own ethnicity, embrace their cultural heritage and live in the multi-ethnic, multicultural, and multilinguistic society that is New Zealand today. Several analytical layers can be noted. Social justice pedagogies are about ways of recog- nising social inequities and marginalised groups and at the same time act on these social inequities in ways that do not further marginalise the groups. In different contexts the marginalised groups may differ as well as the strategies for acting on the inequities (cf. Tinning, 2010; 2016). Social justice might be enacted more or less by the regulative, the normative and the cultural/cognitive institutional elements. For example, in one country, social justice in HPE may be scaffolded by strong regulative and normative elements, while in another country it may be upheld by strong cultural/cognitive elements at the meso and micro levels. Similarily, social justice may be differently expressed in the regulative, the normative and the cultural/cognitive institutional elements of the school subject HPE, as well as in the school as a national institution.Perhaps it is the historical differences between the countries that leads to different ways of addressing equity and what it means to be socially just in an educational setting. Clearly, there is much to learn from one another about the nature of social justice, and how this is played out in our schools, including HPE lessons. The starting point for an informed understanding is seeing it (the nature of social justice) from the ‘others’ perspective. It is our belief that an understanding of what constitutes pedagogies for social justice needs to go beyond a focus on pedagogy and include a recognition of the regulative, normative and cultural per- spectives that both explicitly and implicitly enable and/or constrain social justice pedagogies. Note 1. Referring to Treaty of Waitangi that was signed on 6 February 1840 by representatives of the British Crown and Māori chiefs in New Zealand. Disclosure statement The authors declared potential conflicts of interest with respect to the research, authorship, and/or publication of this article: The results presented in this article only reflects the authors’ views and the European Union is not responsible for any use that may be made of the information it contains. CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 137 Funding The author(s) disclosed receipt of the following financial support for the research, authorship, and/ or publication of this article: This project has received funding from the European Union’s Horizon 2020 research and innovation program under the Marie Skłodowska-Curie grant agreement No 734928. ORCID Göran Gerdin http://orcid.org/0000-0003-2922-1993 References Aasland, E., Walseth, K., & Engelsrud, G. (2016). The changing value of vigorous activity and the paradox of utilising exercise as punishment in physical education. Physical Education & Sport Pedagogy, 22(5), 1–12. Adams, M., Bell, L. A., & Griffin, P. (2007). Teaching for diversity and social justice. New York, NY: Routledge. Alvord, S., Brown, D., & Letts, C. (2004). Social entrepreneurship and societal transformation an exploratory study. The Journal of Applied Behavioral Science, 40(3), 260–282. Apple, M. W. (2001). Comparing neo-liberal projects and inequity in education. Comparative Education, 37(4), 409–423. Axelsson, T., & Qvarsebo, J. (2011). Skapandet av den normala barndomen. In S. Persson & B. Riddersporre (Eds.), Utbildningsvetenskap för grundskolans tidiga år. 1. utg (pp. 25–43). Stockholm: Natur & Kultur. Azzarito, L., Macdonald, D., Dagkas, S., & Fisette, J. (2017). Revitalizing the physical education social-justice agenda in the global era: Where do we go from here? Quest, 69(2), 205–219. Bain, L. L. (1985). The hidden curriculum re-examined. Quest, 37(2), 145–153. Bell, L. A. (2016). Theoretical foundations for social justice education. In M. Adams, L. A. Bell, D. J. Goodman, & K. Y. Joshi (Eds.), Teaching for diversity and social justice (pp. 3–26). Abingdon: Routledge. Bialystok, L. (2014). Politics without “brainwashing”: A philosophical defence of social justice edu- cation. Curriculum Inquiry, 44(3), 413–440. Bishop, R. (2005). Freeing ourselves from neo-colonial domination in research: A Kaupapa Māori Approach to Creating Knowledge. In N. K. Denzin & Y. S. Lincoln (Eds.), Handbook of Qualitative Research (3rd, pp. 109–138). Thousand Oaks, CA: SAGE. Blackmore, J. (2013). Social justice in education: A theoretical overview. In B. Irby, G. Brown, R. Lara-Alecio, & S. Jackson (Eds.), The handbook of educational theories (pp. 1001–1010). Charlotte: Information Age. Deutsch, M. (1975). Equity, equality, and need: What determines which value will be used as the basis of distributive justice? Journal of Social issues, 31(3), 137–149. Dover, A. G. (2013). Getting “up to code”: Preparing for and confronting challenges when teaching for social justice in standards-based classrooms. Action in Teacher Education, 35(2), 89–102. Fernández-Balboa, J. M. (1993). Sociocultural characteristics of the hidden curriculum in physical education. Quest, 45(2), 230–254. Fernández-Balboa, J. M. (1995). Reclaiming physical education in higher education through critical pedagogy. Quest, 47(1), 91–114. Fernández-Balboa, J. M. (1997). Critical postmodernism in human movement, physical education and sport. New York: State University of New York Press. Fernández-Balboa, J.M. (2017). A contrasting analysis of the neo-liberal and socio-critical structural strategies in health and physical education: reflections on the emancipatory agenda within and beyond the limits of HPE. Sport, Education and Society, 22(5), 658–668. 138 K. SCHENKER ET AL. http://orcid.org/0000-0003-2922-1993 Fitzpatrick, K. (2013). Brown bodies, racialisation and physical education. Sport, Education and Society, 18(2), 135–153. Fitzpatrick, K., & Russell, D. (2015). On being critical in health and physical education. Physical Education and Sport Pedagogy, 20(2), 159–173. France, A., & Roberts, S. (2017). Youth and social class: Enduring inequality in the United Kingdom, Australia and New Zealand. London: Palgrave Macmillan. Fraser, N. (2001). Recognition without ethics? Theory, Culture and Society, 18(2–3), 21–43. Garrett, R., & Wrench, A. (2011). Making physical education a fairer, safer and happier place: Putting critical practices into action. Asia-Pacific Journal of Physical Education, 2(2), 35–50. Gerdin, G., Philpot, R., Larsson, L., Schenker, K., Linnér, S., Moen, K., … Legge, M. (2019). Researching social justice and health (in)equality across different school health and physical edu- cation contexts in Sweden, Norway and New Zealand. European Physical Education Review, 25 (1), 273–290. Giroux, H. A., & Penna, A. N. (1979). Social education in the classroom: The dynamics of the hidden curriculum. Theory & Research in Social Education, 7(1), 21–42. Hackman, H. W. (2005). Five essential components for social justice education. Equity & Excellence in Education, 38(2), 103–109. Hill, J., Philpot, R., Walton-Fisette, J. L., Sutherland, S., Flemons, M., Ovens, A., … Flory, S. B. (2018). Conceptualising social justice and sociocultural issues within physical education teacher education: International perspectives. Physical Education and Sport Pedagogy, 23(5), 469–483. Kirk, D., & Tinning, R. (1990). Physical education, curriculum and culture: Critical issues in contem- porary crisis. Bristol, PA: The Falmer Press. Kvalbein, I. A. (1998). Laererutdanningskultur og kunnskapsutvikling. Diss. (Oslo: Det utdannings- vitenskaplige fakultet, pedagogisk forskningsinstitutt, Universitetet i Oslo). Lather, P. (1998). Critical pedagogy and its complicities: A praxis of stuck places. Educational Theory, 48(4), 487–497. Legge, M. (2010). E noho marae – Transforming learning through direct Māori cultural experience. In C. J. Jesson, V. M. Carpenter, M. McLean, M. Stephenson, & Airini (Eds.), University teaching reconsidered: Justice, practice, equity (pp. 139–149). Wellington. NZ: Dunmore. Light, P. C. (2008). The search for social entrepreneurship. Washington, DC: Brookings Institution Press. Mair, J., & Marti, I. (2006). Social entrepreneurship research: A source of explanation, prediction, and delight. Journal of World Business, 41(1), 36–44. McDonald, G. (2002). Dr CE Beeby, the quality of education. Retrieved from https://www.nzcer. org.nz/system/files/journals/set/downloads/set2002_2_025_0.pdf New Zealand Ministry of Education. (2007). The New Zealand curriculum. Wellington: Learning Media Limited. Norberg, J. R. (2011). A contract reconsidered? Changes in the Swedish state’s relation to the sports movement. International Journal of Sport Policy and Politics, 3(3), 311–325. Öhman, M., Almqvist, J., Meckbach, J., & Quennerstedt, M. (2014). Competing for ideal bodies: a study of exergames used as teaching aids in schools. Critical Public Health, 24(2), 196–209. Ovens, A., Flory, S. B., Sutherland, S., Philpot, R., WaltonFisette, J. L., Hill, J., … Flemons, M. (2018). How PETE comes to matter in the performance of social justice education. Physical Education and Sport Pedagogy, 23(5), 484–496. Payton, R. L., & Moody, M. P. (2008). Understanding philanthropy: Its meaning and mission. Bloomington: Indiana University Press. Randall, L., & Robinson, D. (2016). An Introduction to Social Justice in Physical Education: Critical Reflections and Pedagogies for Change. In L. Randall & D. Robinson (Eds.), Social justice in phys- ical education: Critical reflections and pedagogies for change (pp. 1–14). Toronto: Canadian Scholars Press. Rashbrooke, M. (2013). Inequality: A New Zealand crisis. Wellington, NZ: Bridget Williams Books. Säfvenbom, R., Haugen, T., & Bulie, M. (2015). Attitudes toward and motivation for PE. Who col- lects the benefits of the subject? Physical Education and Sport Pedagogy, 20(6), 629–646. CURRICULUM STUDIES IN HEALTH AND PHYSICAL EDUCATION 139 https://www.nzcer.org.nz/system/files/journals/set/downloads/set2002_2_025_0.pdf https://www.nzcer.org.nz/system/files/journals/set/downloads/set2002_2_025_0.pdf Schenker, K. (2019). Teaching physical activity—A matter of health and equality? Scandinavian Journal of Educational Research, 63(1), 53–68. Scott, W. R. (2007). Institutions and organizations: Ideas and interests. London: Sage. Sturman, A. (1997). Social justice in education. Melbourne: Australian Council for Educational Research. Swedish National Agency for Education. (2011). Curriculum for the compulsory school, preschool class and school-age educare (Revised 2018). Stockholm: AB Typoform. Tinning, R. (2010). Pedagogy and human movement: Theory, practice, research. New York, NY: Routledge. Tinning, R. (2012). A socially critical HPE (aka physical education) and the challenge for teacher education. In B. Down & J. Smyth (Eds.), Critical voices in teacher education: Teaching for social justice in conservative times (pp. 223–238). Dordrecht: Springer. Tinning, R. (2016). Transformative pedagogies and physical education. In C. Ennis (Ed.), The Routledge handbook of physical education pedagogies (pp. 281–294). New York, NY: Routledge. von Greiff, C. (2009). Lika skola med olika resurser? En ESO-rapport om likvärdighet och resursfördelning [Equal school with unequal resources? A ESO-report on equality and distri- bution of resources]. ESO 2009:5. Stockholm: Expertgruppen för studier i offentlig ekonomi. Wahlström, N. (2014). Equity: Policy rhetoric or a matter of meaning of knowledge? Towards a framework for tracing the ‘efficiency-equity’. Doctrine in curriculum documents. European Educational Research Journal, 13(6), 731–743. Wright, J. (2004). Critical inquiry and problem-solving in physical education. In J. Wright, D. Macdonald, & L. Burrows (Eds.), Critical inquiry and problem-solving in physical education (pp. 1–16). London: Routledge. Zollers, N., Albert, L., & Cochran-Smith, M. (2000). In pursuit of social justice: Collaborative research and practice in teacher education. Action in Teacher Education, 22(2), 1–14. 140 K. SCHENKER ET AL. Abstract Introduction Social justice and HPE in neoliberal times Social justice pedagogies Social justice – is it one concept or two? The ‘social’ Justice (and equity) The need for context specific examination of social justice practices Social justice in a Scandinavian context Social justice in a New Zealand context Conclusion Note Disclosure statement ORCID References 
work_mez2bxlhnfdolchypu7qq7twi4	----	European Journal of Criminology 0(0) 1 –19 © The Author(s) 2013 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1477370813505954 euc.sagepub.com Deeper, broader, longer transitional justice Ray Nickson and John Braithwaite Australian National University, Australia Abstract Transitional justice has an expectation management problem. International law imposes a right to justice and an obligation to defeat impunity from crimes against humanity. Yet there has not been a war where a substantial proportion of criminals against humanity have been convicted. Nor is one likely. The theoretical solution considered in this paper is to broaden, deepen, and lengthen our conception of justice so that more survivors might be vindicated by some kind of justice, even if a partial kind of justice. We broaden justice with a more holistic, yet multidimensional conception of what justice means, so that, for example, restorative justice, Islamic justice and indigenous justice can be embraced among many alternatives to impunity. Deepening justice means deeper survivor and citizen opportunities to shape a more responsive justice and to shape remedies through participation. Lengthening justice means giving less priority to speedy trial and closure as transitional justice values. It might mean a permanent Truth and Reconciliation Commission that keeps its doors open to victims decades on. Keywords Expectations, holism, restorative justice, transitional justice All legal systems fail to meet many of the expectations citizens have of them. The plan of this paper is first to suggest that a wide gap between hopes and expectations is particu- larly endemic to transitional justice. Then the paper suggests that one step towards nar- rowing this gap could be to broaden our conception of justice, then deepen it, then lengthen it. The contribution aims simply to show what it might mean to broaden– deepen–lengthen our conception of justice. Its only other contribution is then to argue that a deeper, broader, longer conception of justice could deliver a more meaningful kind of justice in transitions. The hope is that a broad–deep–long conception might be a more Corresponding author: Ray Nickson, Australian National University, Australian Capital Territory, 0200, Australia. Email: ray.nickson@anu.edu.au 505954EUC0010.1177/1477370813505954European Journal of CriminologyNickson and Braithwaite research-article2013 Article at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 2 European Journal of Criminology 0(0) serviceable foundation for peace with justice, for reconciling past conflicts in a way that prevents new cycles of violence and war. A foundation is all it could be, we argue in the conclusion, because praxis would also need to invent new paradigms of bottom-up expectation transformation as an alternative to extant ‘expectation management’ by tran- sitional justice practitioners. Transitional justice’s expectation problem Ray Nickson recently completed research on stakeholder perceptions of the international tribunals established for crimes against humanity during the conflicts in Cambodia and the former Yugoslavia (Nickson, 2013). Although the normative and conceptual analysis of this paper does not depend on the validity of those results, they motivated this analysis and therefore are worth briefly summarizing. In interviews with practitioners who worked within and with the International Criminal Tribunal for the former Yugoslavia and the Extraordinary Chambers in the Courts of Cambodia, a topic raised more than any other by respondents was the expectations held of international criminal trials. Respondents were interviewed throughout 2011 in semi-structured, open-ended inter- views. They included judges, prosecutors, defence counsel, outreach staff, registry staff, court media officers, and staff from justice-oriented non-governmental organizations (NGOs). For 28 of the 58 respondents, one major challenge facing the court was to man- age the unrealistically high expectations ordinary people, especially victims, have of what the court can accomplish. The dilemma was that a campaign to motivate the fund- ing of an international criminal tribunal succeeds partly because it does raise high expectations. Once established, however, prosecutions of crimes against humanity always prove evidentially difficult and consume vast quantities of legal labour. Over time, conse- quently, the rationing of cases to trial becomes progressively tighter. With Cambodia, more than 1.7 million were killed in countless separate atrocities (Kiernan, 2002). Yet a Tribunal for Cambodia established in 2006 has so far seen only one conviction and two other defendants on trial (two others were also defendants in the same trial, during which the prosecution of one was suspended owing to their ill health and the other died). Many Cambodian victims were deeply dissatisfied with the prospect of just a few senior con- victions when the man they saw slaughter their family members still lives in their village. One reason the expectation gap could be even wider in the former Yugoslavia is that victims universally felt that the prison terms that were handed down were far too short and many victims wanted nothing less than execution of Serbian war criminals (Ivkovic, 2001) – this when there was never any prospect that anyone would be executed by the International Criminal Tribunal. Even in the now rare contexts in the contemporary world where this expectation can be attempted, angry, disempowered victims can still feel angry and disempowered: A prosecutor in the former Yugoslavia prosecuted a multiple murderer at a time when the death penalty was available. After the conviction of the accused, the prosecutor successfully sought the death penalty. Later, at a conference with the victims’ families, the prosecutor stated how he had sought the death penalty to satisfy their expectations of justice. The victims’ families were at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 3 outraged and responded that they were not satisfied. They wanted the murderer to spend life in prison so that he could really suffer. The prosecutor concluded that no matter the outcome, you would never satisfy victims. (Tribunal media interview #1; Nickson, 2013) An alternative interpretation could be that the key lies in a more empowering justice process for victims. This is the direction our investigation takes. The starting point in managing a widespread wish for a life for a life is a genuine national conversation among stakeholders on whether the peace that almost everyone wants more than anything else is possible unless people let go of the ‘life for a life’ expectation. The expectations of international criminal trials that were identified by stakeholders in interviews were varied. One unifying feature of these expectations is that most current manifestations of transitional justice – limited criminal trials employing retributive con- cepts of justice, or time-limited commissions of inquiry – are unlikely to satisfy them. Expectations that seek truth, healing, reparations and an improvement to qualities of life that were diminished through conflict were mentioned frequently. In fact, expectations that criminal trials would provide answers to profound questions about conflict and atrocities, as well as intimate questions about the fate and location of loved ones, were almost universal, and were discussed in at least 26 interviews. In addition, expectations that prosecutions would include the direct perpetrators of crimes were common. These demonstrated two problems with current transitional justice. The first is a disconnect between citizens and judicial institutions; the second, reliance on one form of justice that is ill equipped to adequately address people’s diverse hopes for justice. In interviews with judicial officers, court staff, and prosecutors at the tribunals for the former Yugoslavia and Cambodia, many respondents were aware of community expectations for truth and understood them. Yet their own professional expectations were of due process and fair trials. Indeed, many explicitly stated that an expectation of historical truth was an improper burden for judicial proceedings that could not be ful- filled. Yet the expectation for answers and truth persists, partly because it was part of the rhetoric of the campaign to establish the tribunals. The international community also holds impossible expectations of transitional justice. The limited operation of most international tribunals perhaps best exemplifies an attitude that transitional justice can be achieved in a defined, usually short, period of time that brings closure at moderate cost. Affected communities are expected to heal and reconcile when possibly only a few perpetrators have seen the inside of a courtroom. Extending transitional justice time- frames is one element of the transformation we explore for giving adequate opportuni- ties for healing and reconciliation. Observations of an ‘expectation problem’ have previously been highlighted in the transitional justice literature. At the very creation of the International Criminal Tribunal for the former Yugoslavia in 1993, the first international court to try war crimes since the Second World War, Theodor Meron (1993: 133), who would later become President of the Tribunal, recognized that there were ‘already fairly high expectations [of what the Tribunal could provide]’. Writing 17 years later, former Tribunal spokesperson Refik Hodzic (2010: 122) found that most victims he had interviewed felt ‘that early expectations of “transformative” justice had been exaggerated’. The disappointment of expectations by international tribunals is not limited to the Tribunal for the former Yugoslavia (Hafner at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 4 European Journal of Criminology 0(0) and King, 2007). Indeed, McEvoy (2008: 30) has observed that the ‘overselling’ of what legal institutions may provide has encouraged ‘unrealisable public expectations and ulti- mately an unfair assessment that such institutions have failed’. Although a handful of researchers recognize this expectation problem, the literature does not suggest a theory of how to respond to expectation disconnects. This paper is not about developing a well-rounded understanding of how international justice officials’ need to ‘manage expectations’ comes about, or of how they set about the business of managing it. Nor does it seek to summarize Nickson’s (2013) empirical find- ings about which expectation gaps between transitional justice hopes and realities are widest. Rather, it takes the expectations challenge as a given and advances just one pos- sible approach to a theory of how to manage it. This approach is to deliver more justice by broadening, deepening and lengthening the conception of justice in international criminal law jurisprudence. This response grows from valorizing the idea that interna- tional justice should have a more international, less narrowly western, character because it is international. The western criminal law tradition is myopically focused on punish- ment as hard treatment for culpable individuals delivered in speedy trials. Some non-western traditions de-centre not only punitive individualism but also the idea that justice delayed is justice denied. Islamic justice, for example, gives victims a presumptive right to punish the guilty and also encourages use of a right to forgive as a gift of community reconciliation and family reconciliation, underwritten by the belief that the sanction that matters will be God’s at a much later time. Although we think an interesting case can be made to render international human rights law less European by incorporating a more Islamic vision of the right of victim families to forgive from pun- ishment even their child’s murderer, and that this could have a practical relevance to managing expectations for justice after wars in which many thousands of civilians are slaughtered, we do not see law reform as the main game. Indeed, we see extant interna- tional criminal law as reasonably well equipped to play its part in a transformed transi- tional justice that better realizes expectations. What international law needs, on our analysis, is more institutional humility. The hard sell for the myopically legal approach that preceded establishment of the International Criminal Court must now be put in its box. It follows that one reason it is desirable to broaden, deepen and lengthen our concep- tion of justice is that this allows transitional justice space to deliver non-western as well as western conceptions of virtuous justice. It can render international law a less didactic tradition that does more listening and learning from multiplicity in justice ethics. It also follows from cross-cultural pluralization of transitional justice in the process of broadening– deepening–lengthening that it must be more open to what Cass Sunstein (1996) in his Tanner lectures called incompletely theorized agreement. Courts confront disagreements among people on different sides of wars as to whether alleged criminality was politically evil, politically heroic, politically misguided, politically justified but using unjustified means, and so on. Sunstein argues that, even within a unified, peaceful state, time con- straints upon courts, the need for people to be able to live together without ongoing conflict, and, most of all, heterogeneity of values and moral reasoning mean that adjudi- cation must deliver decisions that people can accept for incompatible ethical reasons. Hence, there is often consensus that a court got a decision right, but for theoretically at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 5 utterly incompatible reasons among those who agree on the decision. Courts therefore routinely put aside theoretical coherence in favour of bounded rationality towards out- comes that can mostly be accepted as legitimate for contradictory reasons, and can there- fore stick. Sunstein argues that it is a good thing that legal agreements are incompletely theorized.1 We would add that a conscious broadening–deepening–lengthening of the meaning of justice creates a wider contract zone for the discovery of justice outcomes that are widely accepted by folk with opposed rationales for that acceptance. Thereby, transitional justice outcomes that are incompletely theorized can unify the disunited to work together for a better future of peace with justice. Let us make this practical with an example. The work of John Braithwaite in Muslim Indonesia (Braithwaite et al., 2010a) and of Ray Nickson in Buddhist Cambodia (Nickson, 2013) finds that Muslims in the former case and Buddhists in the latter can see deep justice relevance when enemies who have murdered villagers build, or help rebuild, a mosque or a stupa in the village of the victims. No international law reform is needed to allow the International Criminal Court, particularly its prosecutors, to listen to local victim communities who say that, because these perpetrators have built this mosque or stupa as an act of reconciliation and honour to our fallen, we forgive them; therefore we would wish you to concentrate your scarce prosecutorial resources on perpetrators who have not sought our forgiveness in a way that has meaning for us. No law reform is needed, but a transformed transitional justice mentality is needed to see such a way of thinking about the response of the International Criminal Court as the court playing a more humble part in broader, deeper justice. Sunstein’s point here would be that some lawyers might justify taking account of the mosque or stupa in legal pluralist theoretical terms, others in terms of an international criminal law jurisprudence that considers rec- onciliation an important legal principle, others in terms of a theory of balance between international law principles and international peacebuilding policy. Then Sunstein argues that, so long as officers of the International Court (for these theoretically contradictory reasons) converge on the practical response of empowering the voice of the victims who value the justice of the mosque or stupa, that is what matters. It matters because theoreti- cal humility is more important in international criminal law than in national law. Broadening justice Broadening justice means openness to a more holistic, yet multidimensional, conception of what justice means. The great South African criminologist Clifford Shearing concludes from his post-apartheid research that the justice most ordinary South Africans want is ‘justice as a better future’ (Shearing and Froestad, 2007). This sense of justice was also prominent in both the South African and the Timor-Leste Truth and Reconciliation Commissions (TRCs) when they recommended that large corporations that benefited from apartheid or from the exploitation of Timor should pay some kind of special tax for the benefit of the victims of crimes against humanity. The world’s first bilateral Truth Commission, between Indonesia and Timor-Leste, was fairly criticized for its many limi- tations (Braithwaite et al., 2012). Yet one of the interesting things it prioritized was the concept of institutional as opposed to individual responsibility, particularly of the armed forces and intelligence agencies of Indonesia, and a justice imperative for institutional at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 6 European Journal of Criminology 0(0) transformation.2 The Commission’s conclusion was reached in circumstances where the citizens of both Timor-Leste and Indonesia continued to live in fear of these security insti- tutions, in circumstances where their terror and torture are only partially reformed (Hernawan, 2008). Hence, the institutional transformation the Commission proposed was a particular kind of ‘justice as a better future’. The idea of broadened justice is openness to listening to citizens about which of many kinds of better futures would allow them to feel that they live in a more just society. Would that better future be that Indonesian soci- ety eliminates torture as a threat to their children? Would it be that South African society allows their children freedom of movement rather than pass laws? Would it be radical redistribution of wealth or just equal educational opportunities for their children? Justice, we will argue, is immanently holistic (Luna, 2003). The holism of justice is a theme of the world’s most populous religions – Christianity, Islam, Hinduism and Buddhism. Judaism and Christianity have a Hebrew word for holistic peace with justice – shalom (Zehr, 1995). Jennifer Llewellyn and Daniel Philpott argue that the Arabic word salam has a similar meaning in the Quran and that, in the historical roots of Islam, Judaism and Christianity, reconciliation and mercy are part of the essence of what holis- tic justice means (Llewellyn and Philpott, 2012). This brings in the restorative idea that, because crime hurts, justice should heal, and a justice that leaves wounds open will not seem like justice at all. There are resonances with shalom in the Zulu, Xhosa and now pan-African concept of ubuntu as motivating a holistic, relational justice in the post- conflict speeches of Nelson Mandela and in the South African TRC report. Justice Colin Lamont found no fewer than 12 legally relevant dimensions of ubuntu’s holism in his ruling in the hate speech trial of Julius Malema (Afri-Forum and Another vs. Malema and Others, 2011): Ubuntu is recognised as being an important source of law within the context of strained or broken relationships amongst individuals or communities and as an aid for providing remedies which contribute towards more mutually acceptable remedies for the parties in such cases. Ubuntu is a concept which: 1. is to be contrasted with vengeance; 2. dictates that a high value be placed on the life of a human being; 3. is inextricably linked to the values of and which places a high premium on dignity, compassion, humaneness and respect for humanity of another; 4. dictates a shift from confrontation to mediation and conciliation; 5. dictates good attitudes and shared concern; 6. favours the re-establishment of harmony in the relationship between parties and that such harmony should restore the dignity of the plaintiff without ruining the defendant; 7. favours restorative rather than retributive justice; 8. operates in a direction favouring reconciliation rather than estrangement of disputants; 9. works towards sensitising a disputant or a defendant in litigation to the hurtful impact of his actions to the other party and towards changing such conduct rather than merely punishing the disputant; 10. promotes mutual understanding rather than punishment; 11. favours face-to-face encounters of disputants with a view to facilitating differences being resolved rather than conflict and victory for the most powerful; 12. favours civility and civilised dialogue premised on mutual tolerance. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 7 Justice is only immanently holistic (Luna, 2003), not totally holistic; otherwise there would be no point in distinguishing procedural justice from the justice of outcomes. Procedural justice has been conceived in the literature as having a number of facets – including consistency, correctability, decision accuracy, impartiality, ethicality and pro- cess control – but these facets tend to be moderately highly intercorrelated (Leventhal, 1980; Lind and Tyler, 1988). Measures of citizen perceptions of procedural and distribu- tive justice also tend to be positively correlated and both are positively correlated with restorative justice (Braithwaite, 2002: 54–130). For example, Colquitt et al. (2001) con- ducted a meta-analysis of 45 studies and found an uncorrected population correlation between distributive and procedural justice. One of the empirical claims of restorative justice theorists has been that restorative justice, compared with existing justice prac- tices, contributes to procedural justice, perceived fairness of outcomes (distributive jus- tice) and indeed social justice (Braithwaite, 2002: 54–130). The intuition about the immanent holism of the shalom or ubuntu way of thinking about justice is that a restorative justice process that seeks to empower stakeholders to repair the harm of an injustice will produce outcomes that are more distributively satisfy- ing to stakeholders than a process that seeks to deliver equal punishments for equal wrongs. Heather Strang’s writing suggests one reason is that the narrower just deserts objective allows less leeway for a wider contract zone in which a win–win outcome can be crafted. This is why broadened justice produces outcomes that are more generally conceived as fair (Strang, 2001). The greater control of process in the hands of stake- holders as opposed to justice professionals might also explain why restorative justice is perceived as more procedurally fair. We can also intuit why justice may be immanently holistic by going in the opposite direction in ways suggested by the writings of John Rawls (1971) and indeed most other writers on justice. An unjust procedure will be more open to domination by the person with the most power, rather than the person with the best case, and so will lead both to less fair outcomes and to social injustice by virtue of domination of the powerful. The fact that justice is not fully holistic – that procedural and distributive justice often conflict, for example – means that it is rewarding and important to study the tensions among different versions of justice. Extant formal law does this admirably in many ways. Transitional justice can take advantage of the degree of pluralism that does exist in for- mal law; the fact that it is differentiated into procedures that allow compensation, punish- ment, truth-telling of a kind narrowed to individual guilt or innocence in criminal trials but opened to a wider vision of truth-telling in an inquest, for example. Because justice is immanently holistic, a victim of crime whose perpetrator is never found might be dis- appointed by that impunity yet, when formal law pays them compensation, victims can feel that, in the circumstances, they have been vindicated and their justice claims have been acknowledged. Innovation with broadened justice takes a different tack from exploring the tensions among different forms of justice, however. It says that, because there appears to be an immanent holism of justice, why not search for institutional ideas that maximize the synergy of holistic justice? Restorative justice and ubuntu are just examples of such an institutional idea. Searching for institutions that maximize the synergy of holistic justice is not a bad tack for transitional justice to consider, if the tradition aspires to be more permeable to plural legal traditions. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 8 European Journal of Criminology 0(0) If this distinction between broader (like restorative justice) and narrower (like com- mon law) conceptions of justice does not seem practically meaningful, consider a Nazi criminal who is apprehended for the first time in his old age. Restorative justice advo- cates are opposed to doing nothing about the case because the man is so old. They want a restorative justice process to consider the just claims of all stakeholders. For example, they want a process in which families of Holocaust victims have a voice in shaping what kind of justice should be delivered. Certainly we expect restorative justice advocates to argue against starting a trial that might lead to imprisonment that would have no inca- pacitative value in light of the man’s advanced years, and in circumstances where the odds of the defendant dying before the trial is completed are high. But restorative justice advocates should push harder (than prosecutors imbued with a western criminal law tradition) for truth, apology, compensation, reforms that reverse and repair pan-European traditions of discrimination against Roma communities, information about where bones of survivors might be found and much more because they have a broader view of the justice that is at stake than simply a good prosecutorial decision on whether to push for imprisonment. The literature on the comprehensive justice movement (Daicoff, 2000), especially on the jurisprudence of restorative justice (Braithwaite, 2002), problem-solving courts (see, for instance, Berman and Feinblatt, 2001; Winick, 2002–2003), and therapeutic jurispru- dence (see Wexler, 1993, 2000; Winick, 1997), is vast. We do not intend to say anything new about the jurisprudence of these alternative traditions in this paper. Rather, our aim is to make a novel meta-jurisprudential point about international law acknowledging plural jurisprudential traditions in a way that can help transitional justice escape the rather narrow jurisprudential hole into which it has dug itself. In sum, broader justice: 1. acknowledges immanent holism, yet multidimensionality, in its conception of justice; 2. acknowledges legal, religious and cultural pluralism in what is accepted as con- tributing to justice; 3. is forward as well backward looking, refusing to be narrowed to punishing past crimes, and open to the possibility of ‘justice as a better future’; 4. takes restorative justice seriously, while not seeing it as master narrative that displaces extant legal narratives of what justice is; 5. allows incompletely theorized agreement on what makes for justice in a particu- lar context. Deepening justice Deepening justice means deeper survivor and citizen opportunities to shape justice and shape remedies through participation. It means justice that is more deeply responsive. Deepening justice is a complementary ideal to broadening to a more holistic conception of justice. A problem with broadening justice is that, although it provides more options for giving survivors of injustice some sense of getting some kinds of justice, it also expands the list of ways people can feel dissatisfied at missing out on dimensions of at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 9 justice that matter to them. A solution to this problem can be to deepen participation in justice, whereby survivors participate directly in justice conversations about their case to which authorities listen. Deep engagement, for example in a restorative justice circle, allows stakeholders to discover sources of satisfaction from different kinds of justice that they may not have realized could be satisfying to them (Strang, 2001). No, says the engaged citizen in the circle, we cannot have an eye for our daughter’s eye, lest all our daughters be blind, but what if the new clinic in our village is named after our daughter? Empowerment of stakeholders gives them permission to craft proactively a justice out- come tailored as a remedy to what matters to them. One of the most common personalized needs that survivor families have after crimes against humanity is to know particular things about the fate of their loved one, for exam- ple where her bones are buried. Perpetrators or their associates often have that informa- tion. Some survivors want apology; some do not. Some want to tell perpetrators home truths; some do not. Some want to hear a solemn judicial denunciation of the crime; others would rather do without that extra bit of process. Some want an Islamic, Christian or Buddhist gift of forgiveness; others want to keep religion out of justice. Some want symbolic recognition of their loved one, such as naming a school or park after them; some do not. Some want to push forward reforms that will prevent future generations from ever suffering similar crimes, and participate in their design. For others, this is too political for something so personal. Responsiveness to the needs of stakeholders is a first step in deepening justice. Whereas broadening justice is simply about broadening what counts as justice, deepen- ing justice is about responsiveness to stakeholder participation in deciding what counts as justice. In a recent interview conducted by Ray Nickson in Cambodia (Nickson, 2013) with a person working in victim support, the interviewee explained that identifying why witnesses came to testify is central to assisting them with their participation. The respond- ent noted four broad motivations for testifying: to speak for the dead; to inform the world of the truth; to seek a legal remedy that was just; and the hope that testimony will in some way help prevent future atrocities. Identification of these motivations, which may not be exhaustive, meant that more focused support and assistance could be provided, particu- larly to manage witnesses’ expectations that were unlikely to be satisfied by the court process. For instance, the respondent had concluded that victim witnesses motivated by informing the world of the truth were quite unlikely to find that deep personal participa- tion in the discovery of truth was possible in a trial. The first step towards deepening justice is to incorporate and listen to the views and desires of affected communities in shaping transitional justice. This is needed at all stages, not simply as a remedial strategy once institutions have been imposed on local populaces. Deeper justice means proactive engagement that enriches stakeholders’ understand- ing of the options available to them and gives them a genuine say in their design. In restorative justice processes, survivor families often receive briefings from experts on options they might consider in a restorative agreement. Then the experts leave the room to allow the family to write out a list of demands to put to perpetrators or to the state. The idea is that justice has deeper meaning for citizens when their needs are articulated in their own voice to reflect the uniqueness of their needs rather than processed in standard- ized ways through the voice of a legal mouthpiece. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 10 European Journal of Criminology 0(0) The empirical literature on the psychology of procedural justice is a strong clue to how deeper participation in justice can deliver a sense of having got justice even if citi- zens have not won their preferred outcomes. In fact, that literature suggests that satisfac- tion with justice is much more strongly driven by perceptions of procedural justice, particularly the opportunity to shape justice through being listened to, than by percep- tions of having secured preferred outcomes in a legal matter (Tyler, 1990; Tyler and Blader, 2000; Tyler and Dawes, 1993; Tyler and Huo, 2001). It follows that, when survi- vors perceive themselves as enjoying deep procedural opportunities to influence justice, even if they miss out on most of the justice outcomes they would like, they can experi- ence fairness and move on. We do not have the same quality of evidence for justice after a war. Yet it seems a good hypothesis here as well that, where citizens have opportunities for deep procedural justice through voice (even if only at one point in time), they may be more willing to commit to a peace in which they miss out on most of the outcomes they pursued in their war. Lengthening justice Lengthening justice means transitional justice that is no longer transitional because the justice institutions created in the aftermath of the conflict survive all victims of the conflict. Lengthening justice means problematizing closure and speedy trial as justice virtues. Speedy trial is a generally accepted justice virtue in the western legal tradition. Truth Commissions are often established with a requirement to report within two or three years.3 A problem with speedy reporting by Truth Commissions or speedy trials is that the most traumatized victims often take longest to be ready to participate in transitional justice.4 The experience of the civil war in Bougainville, Papua New Guinea, demonstrates that it often takes many years of traditional reconciliation work before the perpetrators of the worst atrocities acquire the confidence that they can confess their crimes without fear of revenge (Braithwaite et al., 2010b). Collective confessions (by military units) often preceded individual confessions of war crimes in Bougainville. The individual confessions were many more years in coming because the perpetrators wanted to see if the response to the collective confession was recon- ciliation or revenge attacks. There is a case for TRCs that are permanent institutions,5 keeping their doors open to assist with truth, reconciliation and justice at whatever point in time victims and perpetrators are emotionally ready. By the time all survivors have died, the TRC may function as no more than a museum that stores their testimony and the artefacts of suffering, transmitting memories of tyranny and reconciliation to the next generation. A rather long lengthening is envisioned if it stretches beyond the lives of all survivors and perpetrators. One might then ask how much use is justice to the dead? Quite a lot if, when they are alive, they grow to understand that their society has a long-term commit- ment to preserving the collective memory of their suffering, of lessons from the nation’s past, and to honouring the sacrifices of those who made them. For some survivors and their families, an important part of what ‘justice as a better future’ means is a future where collective memory is honoured. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 11 A permanent TRC could have the task of acting as a catalyst of the village-level tradi- tional reconciliation that was led more spontaneously from below in Bougainville. Some informants for our research in South Africa in 20126 thought that a permanent Commission might have better served the vast needs that the brief spectacle of the South African TRC exposed but did not have time to meet. Others felt that the local peace committee archi- tecture of the 1991 National Peace Accord that was shut down after the 1994 election of the Mandela government might more usefully have been made permanent. This was because of their view that peace committees had more than a reconciliation function dur- ing the transition. They also doused sparks of future emerging conflicts and created very local spaces with settled local mediators who could reconcile old enemies at the point when they were ready to be reconciled. One respondent mentioned how the permanent National Peace Committee in Ghana had defused emerging conflict during a close national election, persuading both national leaders contesting the election to announce publicly in advance that they would abide by the Election Commission’s call of the result. Again, there can be complementarity among such options, with the Truth Commission catalysing and coordinating local peace committees and village-level rec- onciliations, rather as the Timor-Leste Commission did. If truth is an expected basis for post-conflict justice and reconciliation, Susanne Karstedt’s (2008) research should be noted. In the 1940s and 1950s, reconciliation in Europe was based on the German people believing that atrocities were the responsibility of only a small inner circle around Hitler (Karstedt, 2008). This lie, which was part of the legacy of the Nuremberg trials, was corrected after war crimes trials from the 1960s gave direct voice to the victims of concentration camps for the first time. If truth-telling is part of the justice people expect, criminal trials that settle for answering only guilty/not-guilty questions may not deliver much of it. On the other hand, the promising thing is that, although the Nuremberg trials did not persuade the German people to acknowledge a truth that the rest of the world expected them to acknowledge, a sequence of trials over a period of a decade and a half did deliver this. Keeping a flickering flame of reconciliation conversation going might be the basis for a new philosophy of permanent TRCs comforting survivors with a societal commitment to never give up on truth, memory and justice as a project for the ‘longue durée’ (Karstedt, 2008). The Bougainville civil war experience of enduring reconciliation shows that most of the perpetrators and survivors of the worst atrocities were not ready for meaningful reconciliation in the first few years after the peace. They were not emotionally ready. More than that, after a civil war, people are too busy with rebuilding their homes, their churches and their schools and replanting devastated fields. A permanent TRC that keeps its doors open for a century has the option of educating survivors that truth, justice and reconciliation are partial accomplishments of the longue durée. They can never be quick and easy is the educational message. The other message is that, whenever survivors are ready, they can walk through the TRC’s doors to record their story, to request that perpetrators step forward for reconciliation or justice, or both. The ethos of the educative appeals to victims of a permanent Commission is that survi- vors can put their trust in their children and grandchildren to preserve the memory of their suffering and never close the door on truth, justice and reconciliation. This is part at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 12 European Journal of Criminology 0(0) of why using the archives and artefacts of a permanent TRC for a museum is important. It becomes a focus for educating future generations of schoolchildren about the sacri- fices of their forebears.7 Indeed, as the Institute for Justice and Reconciliation has done in South Africa, children can be enrolled to the project of recording memories by film- ing the stories of their parents and grandparents who missed the opportunity to testify at the TRC, stories of suffering and resilience. Particularly in poor countries where capital city tourist attractions tend to be few, museums that commemorate recent wars often become drawcards that can charge tourists admission fees that offset costs.8 International peacekeepers and their families are often deeply interested later in life to visit such war museums in the countries where they served. A permanent Commission might also edu- cate perpetrators who crave immediate forgiveness and closure that part of the suffering that it is their responsibility to bear is patience until their victims are ready for reconcili- ation, if ever. A permanent Commission could monitor the accomplishment of ‘justice as a better future’ in a way a bounded Commission could not. One method for a transitional con- stitutional moment could be to establish an interim TRC with the mandate both to col- lect testimony towards an Interim Report and to build consensus towards a mandate for the permanent Commission, which might be enshrined in the Constitution. Under this vision, the permanent Commission could become an integral part of the separation of powers, an extra check and balance in the polity. Hence, if the interim Commission in a case such as post-apartheid South Africa decided that ‘justice as a better future’ was fundamental to transitional justice, it might recommend to the drafters of the new Constitution that the permanent Commission be mandated to produce five-yearly com- prehensive reports evaluating the successes and failures of national institutions in reducing racial inequality, eliminating poverty, creating educational equality and pro- ducing less brutal security forces. Regardless of how deepened participation decides to time different transitional justice institutions, it must solve what our data (Braithwaite et al., 2010b, 2010c, 2011; Nickson, 2013) suggest might be the biggest single challenge. This is the survivor who says, although it is good that a few big fish were prosecuted, although it is good a TRC revealed hidden truths, neither heard my story and I suffer from seeing my perpetrator free to enjoy impunity in my village every day. Lengthened justice is the key to that challenge because it means that one day a victim advocate can get behind the cause of that neglected survivor in that remote place and insist that her justice demands must finally be heard in a way that makes some sense to her, whether it is through traditional justice, a trial under state law, an international Tribunal, or restorative justice that settles only a symbolic form of acknowledgment, reparation and truth-telling. This is critical because the most profound way that broad–deep–long justice can make things worse is when that neglected survivor sees so many different (broadened) ways that other survivors get justice, none of which apply to her. She sees so many ways that people in the city have been allowed to partici- pate in deciding how post-conflict justice can be deepened, while none of those participa- tion opportunities ever arrived in her village. She sees that there has been a longue durée of post-conflict justice that at every stage has turned away from the terrible crime she suffered. No transitional justice of any kind might be better than a broad–deep–long post- conflict justice that still averts its eyes from large numbers of people like her. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 13 Democracy’s work to be done We have presented the outline of a theory of justice radically reconfigured. More detailed, contextual and critical work is needed to fill that outline. The outline is of a conception of justice that broadens–deepens–lengthens the choices available to stakeholders in tran- sitional justice. We have attempted to show that broadening, deepening and lengthening ideas are commonly implicit in the utterances of victims and other commentators. Our contribution has been to elevate these scattered thoughts into a more holistic vision of justice. When choices are broadened–deepened–lengthened, survivors who do not want to meet their perpetrator face to face will be taken seriously when they demand that she be prosecuted, or vice versa; survivors who want the deeper justice of participating in a root cause analysis of the culture of torture in a police agency are given voice for the possibility of a remedy crafted to include, for example, deep political engagement with police reform; survivors who were too traumatized to meet with their perpetrator when they were young can get support to do so if, in their old age, they then wish to meet their perpetrator. Depth of justice is the key dimension for enabling this ambition. If there is a level of support for survivors (and recovering perpetrators) that empowers them, not with a veto (except over their own participation) but with an influential voice in the crafting of remedies that might meet their unique needs, then justice choices might be more jus- tice enhancing. This deepening of justice also involves a deepening of democracy. Even in the most successful post-conflict democratizations, by the time citizens move into their second and third post-conflict elections, hype about how democracy will transform their lives seems hollow. Their political leaders seem jaded compared with the heroic leaders of the struggle for democracy. They are seen as vote-grabbers and power-grabbers who listen to the wealthy elites who fund their campaigns, leaving ordinary folk with little voice. It has been part of the vision of restorative justice that it is in the judicial branch of govern- ance, rather than in the legislature or the executive, that there are richer opportunities to return substance to democracy in a world where state and business bureaucracies put such a large distance between citizens and decision-making (Braithwaite, 2002: 130–5). A large number of empirical studies from many countries show that victims, perpetrators and community stakeholders all come away from restorative circles with high levels of satisfaction (often over 90 percent) with the justice and democratic participation they have enjoyed, levels of satisfaction never encountered for elected governments (Braithwaite, 2002: 45–72). Not just adult voters but child stakeholders, child soldiers and child survivors can participate in broadened–deepened–lengthened transitional justice (Gal, 2011). We are not born democratic. We learn to be democratic to the degree we enjoy deep participation in democratic processes. Democracy will have deeper roots when we learn this as chil- dren. Our expanded conception of transitional justice extends embrace of children in a deepened form of justice. One of the responsibilities of TRCs under this widened con- ception of justice should be school programs that engage the opinions of children about terrible truths, welcome submissions from children on what should be done about certain things, publish their poems and paintings in Commission reports, foster reconciliation encounters in schools between children from groups that have been killing one another, at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 14 European Journal of Criminology 0(0) foster gifts of kindness between children of the two groups in the course of the education experience, and so on. Modest hopes for small spoonfuls of justice Deepening of justice to include enriched opportunities for participation is the key to resolving the dilemma that, with so many dimensions of justice being enabled under our proposal, people will be dissatisfied that they miss out on most of them. There will just be more things that are talked up, more that they miss out on. This undoubtedly is a downside. Nevertheless, our hypothesis is that the worst outcome is where survivors experience no kind of justice. They regularly see the man who raped and tortured them at the market wearing a watch he stole from them. There has been no calling him to account. Unfortunately, this worst-case outcome is widespread in post-conflict societies. Punitive criminal justice touches very few perpetrators because of the magnitude of the enforcement swamping problem, which is worst in the worst cases such as Cambodia and the Congo where there are millions of victims and but a few symbolic prosecutions. The crucial challenge is to expand the number of survivors who benefit from some kind of vindication of their suffering, some kind of opportunity to voice their condemnation and tell their truth and to get something back, which is a something that they have some participation rights in designing as a remedy tailored to the needs they articulate. When survivors are given participation rights alongside other survivors, they can be helped to transcend their own loss by seeing the greater suffering of others. Often they learn that a good way to heal themselves is to help others. There is criminological evidence that this is true for perpetrators as well; ex-offenders are more successful at ‘going straight’ when they give something of themselves to help other criminals find a better path in their lives (Maruna, 2001). More importantly, through transitional justice experiences that expose participants to the vastness of the unmet needs of so many survivors, people can become more realistic in what they can hope for themselves. They might be brought to say to themselves some- thing like the following: ‘With so many crimes and only six prosecutors, I can see that most of us are not going to see our perpetrators in the dock. But at least I can see that they are carefully recording my story for posterity, alongside all the others, to make sure their report tells a fuller truth. They have agreed to put in one of their reports that there is a need for rape trauma counselling. They have agreed to monitor the improved equality of access to education for our children that I and other victims from poor families have demanded. And, while I see that a court case is never likely to happen, I can see that a traditional justice hearing is a possibility in which I can decide the terms of my participation or non-participation in village justice.’9 Village by village, suburb by suburb, conversations convened by a permanent TRC that embrace many in listening to one another’s stories have the potential to bring that kind of personalized but tiny spoonful of justice to all. It can be crafted in an engagement that educates about the impossibility of all survivors getting the bucketloads of justice or compensation they would ideally like. They get only a spoonful, but at least in the ritual at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 15 of delivering that spoonful of justice, they and their victimization can also be vindicated by appropriate representatives of the society who apologize that it is only a spoonful. One South African victim advocate in our Peacebuilding Compared research argued that, if it is impossible to give all victims a prosecution of those who victimized them, might it at least be possible to guarantee delivery of a memo to all victims that explains what the state has managed to find in relation to their case, what it has managed to do in inves- tigating it and assessing whether it is a case that can be prosecuted or dealt with in some other way. Our qualification would be that it would be good to guarantee this for those who want it, but, for victims who do not want this but want something else, that would be an even better thing to be able to guarantee. Conclusion There is a profound sense in which extant transitional justice works in quite the opposite way to what we have just described. There is no collective conversation about the diffi- culties of managing enforcement swamping problems after mass atrocity. Instead, politi- cal leaders and transitional justice advocates build support for donor funding to end impunity by talking up the possibility of ending impunity. In a press release at the time of the destruction of East Timor on 10 September 1999, UN Secretary-General Kofi Annan said ‘crimes against humanity’ would be punished. Very few of them were. There was never a hope this would happen. It was doubtless well-intended rhetoric. In the event, it was damaging for hundreds of thousands of victims who saw nothing happen to their perpetrators. Today it is time for a new political maturity about the expectations that leaders project for transitional justice. That involves acknowledging that, although the leaders and mas- terminds of the worst crimes will be prosecuted, the practice of international law in every country’s recovery from conflict (whatever the letter of international law says) is that there are never the justice system resources to prosecute every criminal against human- ity. All survivors, however, can be given an opportunity in their local area to tell their truth, which the society promises to record for posterity. All can get the opportunity to contribute their opinions on what the sentences of the lead perpetrators should contain, to contribute their wisdom on how the country should move forward to a more just future. They can get a chance to request a meeting with perpetrators that gives them an opportunity to say what they want to say to them and to make demands they want to discuss with them. Most importantly, they can be given an opportunity to express their views to an interim TRC as to how a permanent TRC should be institutionalized. Along these roads we can begin to see a way to transform expectations of transitional justice from below as an alternative to ‘managing expectations’ top-down (from the International Criminal Court, the Security Council, heads of states) (Nickson, 2013). This is a tall order. But at least it is not an impossible expectation to deliver. Although this broadening, deepening and lengthening of justice involves fewer legal resources than a policy of prosecution of all criminals against humanity in accordance with inter- national law, this alternative would still involve a much larger investment in transitional justice, including in lawyers’ salaries, over a longer transition than we currently manage. For that increased investment, more shattered people might be made whole; democracy at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 16 European Journal of Criminology 0(0) might be given greater participatory meaning; utter impunity would end; survivors would directly participate in crafting some gesture of justice that would have some meaning for them; they would receive public vindication of their suffering through the ritual of deliv- ering that restorative justice; justice could gain more legitimacy because citizen satisfac- tion with justice would increase and the symbolic value of the criminal law in egregious cases would be reinforced. It is a tall order with big benefits if we could be transforma- tive enough in how we expand our vision of justice. The benefits could still be worth- while if all the aspirations on this list were only very partially and falteringly accomplished and if the broadening–deepening–lengthening of justice were only gradually opened up. Acknowledgements An earlier version of this paper was presented as the Lynn Weiss Stuart Lecture on Psychology as a Means of Attaining Peace Through World Law, American Psychological Association Meeting, Orlando, 4 August 2012. Funding This research received no specific grant from any agency in the public, commercial, or not-for- profit-sectors, though funding from the Australian Research Council supported the broader empiri- cal research program on which it draws. Notes 1. However, we recognize that, in transitional justice endeavours, including trials, it may often be necessary and desirable to, in the language of Sunstein, ‘introduce theory’ and revert to ‘high-level views’. One example could be the introduction of human rights theory when deciding an apartheid case. Sunstein (1995) does allow space for this in his theory of incom- pletely theorized agreements. 2. On transformation, see Balint (2012). 3. The recent Solomon Islands Truth and Reconciliation Commission was required to report in one year, extendable to two (Braithwaite et al., 2010c: 86–91). Hayner (1994: 604) states that a defining feature of Truth Commissions is their temporary nature, usually being required to operate in a ‘pre-defined period of time’. 4. This is a general issue with all forms of restorative justice and therapeutic jurisprudence (see Braithwaite, 2002: 45–53). 5. This argument should be distinguished from that of Scharf (1997: 380), who argues in favour of a permanent international Truth Commission, as an adjunct to the permanent International Criminal Court. Scharf’s arguments in favour of a permanent international Truth Commission are that there would be: ‘(1) superior sufficiency in funding; (2) a greater perception of neu- trality; (3) less susceptibility to domestic influences; and (4) greater speed in launching investigations.’ 6. See John Braithwaite’s website: http://www.anu.edu.au/fellows/jbraithwaite/>. 7. This would be in addition to the potential educative effects that time-limited Truth Commissions already possess (Landsman, 1996). For a discussion of the importance of his- tory education in transitional justice more generally, see Cole (2007). 8. Often referred to as ‘dark tourism’, a fascinating literature exists on this emerging field (see, generally, Causevic and Lynch, 2011; Lennon and Foley, 2002; Stone, 2006; Stone and Sharpley, 2008, 2009; Williams, 2004). at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 17 9. In this hypothetical scenario, the semi-formal alternative to the available full criminal process is imagined as something like the traditional justice process used in tens of thousands of cases after the Rwanda genocide, the gacaca. Rwanda is an incipient illustration of how a formal approach to justice that fails for most victims and most perpetrators can be flipped in the longue durée into a broader and deeper justice that offers some, admittedly flawed, process to millions of stakeholders. References Afri-Forum and Another vs. Malema and others, no. 20968/2010 S.A. Eq. Ct. [2011] ZAEQC 2 [11–12]. Balint J (2012) Genocide, State Crime and the Law: In the Name of the State. London: Routledge. Berman G and Feinblatt J (2001) Problem solving courts: A brief primer. Law & Policy 23(2): 125–140. Braithwaite J (2002) Restorative Justice and Responsive Regulation. New York: Oxford University Press. Braithwaite J (2011) Partial truth and reconciliation in the longue durée. Contemporary Social Sciences 6(1): 129–146. Braithwaite J, Charlesworth H and Soares A (2012) Networked Governance of Freedom and Tyranny: Peace in Timor-Leste. Canberra: ANU E Press. Braithwaite J, Braithwaite V, Cookson M and Dunn L (2010a) Anomie and Violence: Non-Truth and Reconciliation in Indonesian Peacebuilding. Canberra: ANU E Press. Braithwaite J, Charlesworth H, Reddy P and Dunn L (2010b) Reconciliation and Architectures of Commitment: Sequencing Peace in Bougainville. Canberra: ANU E Press. Braithwaite J, Dinnen S, Allen M, Braithwaite V and Charlesworth H (2010c) Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands. Canberra: ANU E Press. Causevic S and Lynch P (2011) Phoenix tourism: Post-conflict tourism role. Annals of Tourism Research 38(3): 780–800. Cole EA (2007) Transitional justice and the reform of history education. International Journal of Transitional Justice 1: 115–137. Colquitt JA, Conlon DE, Wesson MJ, Porter CO and Ng K (2001) Justice at the millennium: A meta-analytic review of 25 years of organizational justice research. Journal of Applied Psychology 86: 425–445. Daicoff S (2000) The role of therapeutic jurisprudence within the comprehensive law move- ment. In: Wexler DB, Winick BJ and Stolle DP (eds) Practicing Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press. Gal T (2011) Child Victims and Restorative Justice. New York: Oxford University Press. Hafner DL and King EBL (2007) Beyond restorative traditional notions of transitional justice: How trials, truth commissions and other tools for accountability can and should work together. Boston College International and Comparative Law Review 30 (1): 91–109. Hayner P (1994) Fifteen truth commissions 1974–1994: A comparative study. Human Rights Quarterly 16: 597–655. Hernawan JB (2008) The Practice of Torture in Aceh and Papua, 1998–2007, with an Annex on the Situation of Human Rights in Timor-Leste. Jayapura, Indonesia: Office for Justice and Peace. Hodzic R (2010) Living the legacy of mass atrocities – Victims’ perspectives on war crimes trials. Journal of International Criminal Justice 8(1): 113–136. Ivkovic S (2001) Justice by the International Criminal Tribunal for the Former Yugoslavia. Stanford Journal of International Law 37: 255–346. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 18 European Journal of Criminology 0(0) Karstedt S (2008) The Nuremberg Tribunal and German society: International justice and local judgment in post-conflict reconstruction. In: Blumenthal DA and McCormack TLH (eds) The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance. Leiden: Martinus Nijhoff, 13–36. Kiernan B (2002) The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge 1975–1979. New Haven, CT: Yale University Press. Landsman S (1996) Alternative responses to serious human rights abuses: Of prosecution and truth commissions. Law Contemporary Problems 59: 81–92. Lennon JT and Foley M (2002) Dark Tourism: The Attraction of Death and Disaster. London: Continuum. Leventhal GS (1980) What should be done with equity theory? In: Gergen KJ, Greenbarg MS and Willis RH (eds) Social Exchange: Advances in Theory and Research. New York: Plenum Press. Lind EA and Tyler TR (1988) The Social Psychology of Procedural Justice. New York: Plenum Press. Llewellyn JJ and Philpott D (2012) Restorative justice and reconciliation: Twin frameworks for peacebuilding. In: Llewellyn JJ and Philpott D (eds) Restorative Justice, Reconciliation and Peacebuilding. Oxford: Oxford University Press (forthcoming). Luna E (2003) Punishment theory, holism, and the procedural conception of restorative justice. Utah Law Review 2003(1): 205–302. McEvoy K (2008) Letting go of legalism: Developing a ‘thicker’ version of transitional justice. In: McEvoy K and McGregor L (eds) Transitional Justice From Below: Grassroots Activism and the Struggle for Change. Portland, OR: Hart Publishing, 15–46. Maruna S (2001) Making Good: How Ex-convicts Reform and Rebuild Their Lives. Washington, DC: American Psychological Association. Meron T (1993) The case for war crimes trials in Yugoslavia: The need to assert international law. Foreign Affairs 72(3): 122–135. Nickson R (2013) Great expectations: Managing realities of transitional justice. PhD thesis, The Australian National University. Rawls J (1971) A Theory of Justice. Cambridge, MA: Belknap Press. Scharf MP (1997) The case for a permanent international truth commission. Duke Journal of Comparative and International Law 7: 375–410. Shearing C and Froestad J (2007) Beyond restorative justice – Zwelethemba. A future-focused model using local capacity conflict resolution. In: Mackay R, Bosnjak M, Deklerck J, Pelikan C, Van Stokkom B and Wright M (eds) Images of Restorative Justice Theory. Frankfurt, Germany: Verlag für Polizeiwissenschaft, 16–34. Stone P (2006) A dark tourism spectrum: Towards a typology of death and macabre tourism sites, attractions and museums. Tourism: An International Interdisciplinary Journal 54(2): 145–160. Stone P and Sharpley R (2008) Consuming dark tourism: A thanatological perspective. Annals of Tourism Research 35(2): 574–595. Stone P and Sharpley R (eds) (2009) The Darker Side of Travel: The Theory and Practice of Dark Tourism. Bristol, UK: Channel View Publications. Strang H (2001) Victim Participation in a Restorative Justice Process. Oxford: Oxford University Press. Sunstein CR (1995) Incompletely theorized agreements. Harvard Law Review 108(7): 1733–1772. Sunstein CR (1996) Legal Reasoning and Political Conflict. New York: Oxford University Press. Tyler T (1990) Why People Obey the Law. New Haven, CT: Yale University Press. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ Nickson and Braithwaite 19 Tyler T and Blader S (2000) Cooperation in Groups: Procedural Justice, Social Identity, and Behavioral Engagement. Philadelphia, PA: Psychology Press. Tyler T and Dawes RM (1993) Fairness in groups: Comparing the self-interest and social iden- tity perspectives. In: Mellers BA and Baron J (eds) Psychological Perspectives on Justice: Theory and Applications. Cambridge: Cambridge University Press, 87–108. Tyler T and Huo YJ (2001) Trust and the Rule of Law: A Law-Abidingness Model of Social Regulation. Working Paper. New York: Russell Sage. Wexler DB (1993) An orientation to therapeutic jurisprudence. New England Journal on Criminal and Civil Confinement 20: 259–264. Wexler DB (2000) Therapeutic jurisprudence: An overview. Thomas M. Cooley Law Review 17: 125–134. Williams P (2004) Witnessing Genocide: Vigilance and Remembrance at Tuol Sleng and Choeung Ek. Holocaust & Genocide Studies 18(2): 234–254. Winick BJ (1997) The Jurisprudence of Therapeutic Jurisprudence. Psychology, Public Policy, and Law 3(1): 184–206. Winick BJ (2002–2003) Therapeutic jurisprudence and problem solving courts. Fordham Urban Law Review 30: 1055–1104. Zehr H (1995) Changing Lenses: A New Focus for Crime and Justice. Scottdale, PA: Herald Press. at Australian National University on December 17, 2014euc.sagepub.comDownloaded from http://euc.sagepub.com/ 
work_mh6egxdjifexdal52b7qne2ys4	----	JSS-41-3-335-14-1732-Benyera-E-Tx[4].pmd © Kamla-Raj 2014 J Soc Sci, 41(3): 335-344 (2014) Exploring Zimbabwe’s Traditional Transitional Justice Mechanisms Everisto Benyera Department of Political Sciences, University of South Africa, Pretoria, 0003 E-mail: benyee@unisa.ac.za, ebenyera@gmail.com KEYWORDS Transitional Justice. Ngozi. Healing. Nyaradzo. Guva. Nhimbe ABSTRACT Before the institutionalisation of Rwanda’s gacaca courts, transitional justice was predominantly viewed as a western concept which was more legal and punitive. This paper positions traditional transitional justice mechanisms currently at work in Zimbabwe as viable concomitants in the field of justice, healing and reconciliation. Through a case study of Gokwe District in the Midlands Province of Zimbabwe the study discusses the various grassroots mechanisms used in Zimbabwe to achieve restorative and dignified healing and reconciliation to both the victim and the offender. The paper concluded that for transitional justice to achieve healing, closure, and reconciliation; it requires bottom-up and victim centred mechanisms; familiar to both the victim and the offender. INTRODUCTION This paper demonstrates the viability of what it terms realist traditional transitional justice mech- anisms used in Zimbabwe’s rural areas1. This anal- ysis resonates with theoretical calls for Africa to reinvent its traditions to solve its transitional jus- tice challenges made by, among others, Ranger (1985: 287-321) and Bangura (2005: 11). African tradition is founded onAfrican philosophy and Bangura believes that in order for the philosophy of African solutions for African problems to work, African scholars need to revisit African history, especially oral history, to identify and implement best practices. These solutions are underpinned by African philosophical values such as hunhu/ ubuntu and ought to be incorporated into global human rights instruments such as the Interna- tional Criminal Court (ICC) Statute and other sim- ilar human rights declarations (Samkange and Samkange 1979). This paper presents a set of traditional insti- tutions used in Zimbabwe to achieve healing, truth telling and closure. These modes of every- day healing and reconciliation include the tradi- tional institutions of ngozi (avenging spirit)2, botso (self-shaming)3, chenura (cleansing cere- monies)4, nhimbe (community working groups)5 and nyaradzo (memorials)6. These institutions are underpinned by the African philosophy of hunhu/ubuntu. Characterising the role of hun- hu/ubuntu in transitional justice, Biko (2002 46- 47) noted that hunhu/ubuntu is the human face to transitional justice which Africa offers to the world. The paper consolidates the above Shona customary institutions into what it terms realist transitional justice mechanisms which by defi- nition are set of bottom-up, non-legal, victim- centred broad-based, continuous redress mech- anisms that heal and reconcile communities frag- mented by gross violations of human rights. These are anchored in the African philosophy- which crystallizes humanity around communal solidarity and their opposite is idealist transi- tional justice mechanisms such as prosecutions. By definition hunhu/ubuntu encapsulates that the self is defined by its relationships with other beings, happiness and fulfilment are found in relations between individuals (Nabudere 2011: 10; Ndlovu-Gatsheni 2007b: 26). There is dearth of literature that addresses the use of traditional institutions as transitional justice mechanisms in Zimbabwe. The closest was Tirivangani (2011), who looked at the institution of ngozi from a metaphysical perspective. He consolidated the definition and categorisation of ngoziand shed light on the various forms of ngozi, which until then were either confused at the very least, or often collapsed into one. However, his work did not venture into the efficacy of the insti- tution of ngozi and other related traditional insti- tutions used for truth seeking, healing and com- munity based peace building. SITUATING REALIST TRANSITIONAL JUSTICE MECHANISMS IN HUNHU/UBUNTU Realist transitional justice mechanisms are premised on hunhu/ubuntu which, according to 336 EVERISTO BENYERA Samkange and Samkange (1979), is an ideology of reciprocity, a tradition of giving as well as taking and of limiting the powers of authority and a respect for human rights. For Ndlovu-Gat- sheni, the strength of hunhu/ubuntu as a philo- sophical base for African realist transitional jus- tice mechanisms is its ability to permeate the broad spectrum of African civilisations. Accord- ing to Bangura (2005: 13-53), the efficacy of hun- hu/ubuntu as the base theory for realist transi- tional justice can be located in its ability to tran- scend pedagogy, andragogy, ergonagy and heutalogy. There are certain characteristics that under- pin hunhu/ubuntu which are relevant to the con- ceptualisation of realist transitional justice. These are reciprocity, limitation of power, respect for human rights, acknowledgement of wrong- doing, communal solidarity, unity, humanity de- spite differences, and the inextricability of hu- manity. These ideals are already inherent in most rural societies and recalling them when imple- menting transitional justice programs is accom- plishable. Traditional transitional justice mech- anismspursue these values in a manner that seeks to balance restorative and retributive justice (du Plessisand Ford 2008: 3). Retributive justice goes beyond punishing the offender and leans to- wards vindicating the victim (Morse and Max- well 2001: 3). Restorative justice emphasises bottom-up processes found in ordinary citizens’ experiences and is concerned with taking steps that the victims feel will set things right. This is in contrast to idealist transitional justice mecha- nismswhich involve theelite who present them- selves in various forms, such as peacemakers, truth commissioners, prosecutors, and attorneys (Braithwaite 2000). In Africa in general and Zimbabwe in partic- ular, traditional transitional justice mechanisms gained popularity and acceptance after the South African Truth and Reconciliation Commission (TRC). This may be attributed, inter alia, to the United Nation’s position on traditional transi- tional justice articulated by the then Secretary General Kofi Annan who, in his August 2004 Report on rule of law and transitional justice in conflict and post conflict societies noted that: …due regard must be given to indigenous and informal traditions for administering jus- tice or settling disputes, to help them to contin- ue their often vital role and to do so in confor- mity with both international and local tradi- tion (United Nations Reportof the Secretary General 2004). Customary institutions such as dare/idale (traditional courts), preside over both civil and criminal cases, including transitional justice cas- es. Customary law which is the primary custodi- an of traditional transitional justice mechanisms hands down rulings through chiefs and headmen which are binding on both victims and offenders thus validating these mechanisms as live con- comitants of grassroots transitional justice. EXPLORING ZIMBABWE’S TRADITIONAL TRANSITIONAL JUSTICE MECHANISMS Transitional justice refers to a wide range of mechanism and institutions used in response to gross violations of human rights. Such mecha- nisms could be a set of judicial or non-judicial measures implemented by post conflict commu- nities to redress historical legacies of massive human rights abuses (Hayner 2003; Shea 2000). At a different level, it is concerned with the choic- es, mechanisms, and the quality of justice imple- mented by states emerging from episodes of gross human rights abuses such as, civil wars and totalitarian rule, to respond to past oppres- sion and injustice while constructing a new fu- ture based on democracy and the rule of law. The most common transitional justice choices are amnesties and pardons, criminal sanctions such as prosecution before domestic or interna- tional tribunals, non-criminal sanctions like vet- ting and lustration, commissions of inquiry and truth and reconciliation commissions. However, these mechanisms have been of late expanded to cover customary institutions that are being used as transitional justice mechanisms mainly to seek reconciliation and peace building. These mechanisms form the crux of this paper. The Case Study In an interview in Gokwe District in the Mid- lands Province on 22 September 2012, Chief Njer- ere shed some light on the link between African tradition and transitional justice mechanisms. Gokwe District was chosen as a case study be- cause it has vast populations of Shona and Nde- bele speakers, Zimbabwe’s two biggest ethnic groups. It is also the site of some of the most EXPLORING ZIMBABWE’S TRADITIONAL TRANSITIONAL JUSTICE 337 horrifying episodes of human rights abuses, in- cluding the 1982-83 Gukurahundi7genocide. During the interview, Chief Njerere highlight- ed that Zimbabweans value their ‘living dead’. They are ‘living dead’ because about a year af- ter the death of an adult, certain rites and rituals, referred to as kurovaguva, magadziro/umbuy- iso, are performed by the right people, at the right time and using the correct cultural proce- dures. These rituals are believed to allow the return of the dead person’s spirit to the family so that s/he can assume the ancestral responsi- bilities of protecting and blessing the family. If s/he dies unnaturally, there is a belief that s/he will not be able to assume these ancestral re- sponsibilities. The family and the community are aggrieved because they would have been de- prived of the protection and blessings of one of their ancestors. The dead person is believed to be equally angry because they would have been deprivedof an opportunity of contributing to the prosperity and security of the family. It is against this background that traditional transitional jus- tice mechanisms have gained popularity. In this regard, those who died as a result of politically motivated violence in Zimbabwe deserve to ‘re- turn home’ so that they can protect their families and communities from circumstances similar to those which led to their own demise. However, if a deceased person is to ‘return’ with ancestral responsibilities, certain rites and rituals must be performed. These traditional institutions have found application and relevance in transitional justice and will be discussed in the next section. TRADITIONAL RITUALS PERFORMED AS TRANSITIONAL JUSTICE A combination of traditional transitional jus- tice mechanisms, have long been used in Zim- babwe. In a key informant interview in Harare on 29 September 2011, Professor of African Lan- guages and Literature at the University of Zim- babwe, George Kahari, revealed that traditional rituals that predate colonialism were adapted to fill the void created by the twin catastrophe of the lack of an official transitional justice pro- gramme in Zimbabwe and the blatantly biased manner in which the judiciary operated. It must be noted that mass violence by civilians on ci- vilians is a relatively new phenomenon in Zim- babwe. Prior to the land reform related human rights violations; violence in Zimbabwe was pre- dominantly perpetrated by soldiers on soldiers or by soldiers/police on civilians, something which the state justified as systemic violence necessary for the attainment of greater emanci- pation (emancipatory violence). The same is offi- cial argument in favour of the 1982-83 Matebele- land genocide perpetrated by a division of the Zimbabwe National Army; the North Korean trained 5th Brigade on predominantly Ndebele- speaking civilians. This new form of mass violence, perpetrated by civilians on civilians, resulted in the use of traditional transitional justice mechanisms in order to fight injustice perpetrated, not only by state agents, but by known civilians, from with- in communities. To accomplish both justice and reconciliation, the following rituals were noted as commonly practised in Zimbabwe’s rural ar- eas: nyaradzo (memorial service), ngozi (aveng- ing spirit), kurova guva also known in some parts of Zimbabwe as magadziroor umbuyiso (bring- ing back the spirit of the deceased) and botso (self-shaming). However, in order for these ritu- als to take place other ceremonies are used to bring the victims and the perpetrators together in the presence of the community, for the first time since the violence took place. This forms the first part of the reconciliation process name- ly, facing reality.8 These institutions guarantee not only that offenders face the reality of their wrongful actions, but also that they face their victims in person in the presence of the whole community, so that they realise the magnitude of their crime. To facilitate the process of facing reality, certain traditional ceremonies and insti- tutions are employed, including nhimbe/ilima, (community working groups). These communi- ty working groups also give opportunities for truth-telling platforms. Repentance occurred publicly during these community working group sessions. Issues of restitution were also dis- cussed and moderated during these sessions by a ‘go-between’, known as sahwira. This is a respect and trusted elder in the community who is a friend of the offender’s family friend. The final stage in the reconciliation process was host- ing of a memorial service (nyaradzo) and then another set of rituals and ceremonies meant to bring back the spirit of the deceased as an an- cestor (kurova guva). The ultimate aim of these ceremonies was to reconcile the two families and in the process bring closure to both the victim’s and the perpetrator’s families. 338 EVERISTO BENYERA These rituals and ceremonies could not be conducted during the politically motivated vio- lence era when the atrocities were committed: they were shelved pending the normalisation of the political environment which occurred when the Government of National Unity was formed. In cases where the perpetrators were unknown, or when they refused to cooperate, the institu- tion of ngoziis employed by the victim’s family as a last resort to force the family of the perpetrator(s) to initiate the reconciliation pro- cess (Chief Ngonidzashe Marongwe 2013. pers comm., 2 April). Ngozi proved efficacious in forc- ing offenders to take responsibility, and secured confessions (truth telling) which led to the pay- ment of restitution and culminating in reconcili- ation. Only when this had been finalised could the central rituals of nyaradzo and kurova guva occur. Other institutions used to support the above rituals and ceremonies were usahwira (family friendship), Tree of Life, botso (self-sham- ing), chenura (cleansing) and gata (spiritual au- topsy). The next section discusses some of the traditional institutions used in Zimbabwe to achieve healing and truth telling. Nhimbe/ilima (Community Working Group) Nhimbe/ilima is the most basic traditional transitional justice mechanism observed in Zim- babwe. As a transitional justice institution nhimbe is mostly used to make offenders face the reality of their actions and take responsibil- ity for their wrongdoings. It is used in cases where the offenders are known to the victims and live in the same community. In 2008, a non- governmental organisation, Heal Zimbabwe, was formed to assist perpetrators to seek closure and reconciliation with victims’ families through the nhimbe/ilima mechanism. Heal Zimbabwe cre- ated enabling environments for estranged fami- lies to come together and talk about their differ- ences. Nhimbe/ilima is a traditional communal African practice where communities pool their resources and labour to assist, usually vulnera- ble members of the community. It is a social se- curity mechanism, which, inter alia, ensures food security through gathering community members to perform certain tasks which the vul- nerable family is struggling to cope with. These community working groups have also been ef- fective in assisting child-headed households during the ploughing and harvesting seasons. Nhimbe’s strength lies in its numbers: where a family of two would need weeks to plough the fields, community members would perform the same tasks in hours. Heal Zimbabwe, therefore, adopted a community food security mechanism which upholds the principles of hunhu/ubun- tuand turned it into a peace building and recon- ciliation mechanism. When used as a transitional justice mecha- nism, nhimbe/ilimarelieson a third party or mid- dleman known as sahwira (family friend). The Sahwira initiates the process by encouraging the two families to hold a nhimbe in the victim’s field. Community leaders such as headmen are involved in the planning, give pre-approval, and participate in the nhimbe. When the villagers gather at the victim’s field, work starts in ear- nest. The tasks include hoeing the field or har- vesting ripe cotton. It is during these proceed- ings that the sahwira breaks the proverbial ice and brings the issue of human rights abuse into the discussion. As will be discussed later, the perpetrator is asked to narrate what happened on the fateful day, while the victim’s familyasks questions, usually through the sahwira, who is also the mediator. This process, in transitional justice is the truth telling phase and is part of the healing progression; the family of the victim and community will hear the exact circumstanc- es that led to the victim’s death. The efficacy of this mechanism is it allows for truth telling and, in some instances, reconcil- iation, and where necessary promises of repara- tion, leading to memorialisation. All these are key pillars of an effective transitional justice mechanism. Where in the past communities were afraid to attend or organise community working groups, Heal Zimbabwe created an enabling en- vironment to turn these occasions into oppor- tunities for community peace building, healing and reconciliation. The organisation also often invited the police to deter any violence. Truth Telling and Reconciliation during Nhimbe/Ilima Two key components of transitional justice are truth telling and reconciliation. In realist tran- sitional justice mechanisms, these components are embedded in the consummation of nhimbe/ ilima. While pooling labour for a disadvantaged community member is the original thrust of nhimbe/ilima, in the aftermath of intra-commu- EXPLORING ZIMBABWE’S TRADITIONAL TRANSITIONAL JUSTICE 339 nity human rights abuses, truth seeking, truth telling and reconciliation have emerged as the primary objectives of these traditional institu- tions. As noted above, these objectives has been achieved through bringing the perpetra- tors (if present), and their family to the home- stead of their victims in the presence of the com- munity and local traditional leadership to pro- vide labour, usually in the fields of their victim or the victim’s family. In most of the cases cov- ered by the researcher, Heal Zimbabwe was ap- proached by the perpetrators or their families to facilitate the truth telling and reconciliation pro- cess. The local headmen were then officially notified of the process which was to take place in their jurisdictions. In some cases, such as rural Murewa and Mutoko, local headmen elevated the message by sending it to their paramount Chiefs. As stat- ed above, the reconciliation process was pre- ceded by a truth seeking and truth telling ses- sion which occurred as the two families were working in the victim’s fields. It is the responsi- bility of the sahwira to initiate the truth-seeking process by posing probing questions to the perpetrator (if present) or to their family (in their absence). An example of a typical question is: Now that we are all here and no one can beat you in front of the whole community and the Headman, Tobias, tell us exactly what hap- pened the night John disappeared? (Question used at a nhimbe in Buhera District, Manica- land Province in 2012) Once the perpetrator or a family member start- ed providing answers, the victims, their families, the other community members and even the headman begin to probe the circumstances around the incident further. In facing the reality, offenders tell the truth, take full responsibility for their actions and do not blame those who ordered them to commit human rights abuses. Given the non-punitive nature of the pro- cess, perpetrators often seize the opportunity to relieve themselves of the truth in a bid to secure forgiveness, closure and reconciliation. The sahwira as the mediator determines when to end the question and answer session, and gives a summary of the proceedings while plead- ing with the victims, their families and the com- munity to forgive the offender. At the end of the day’s work in the fields, the whole community congregated at the victim’s homestead to conclude the ceremony. In most cases, this was done by partaking of traditional beer brewed specially for the ceremony. At night- fall there would be an event which included danc- ing in celebration of the rebirth of cordial rela- tions. The sunrise on the next morning signified the birth of a new relationship and the official acceptance of the perpetrator’s apology. In rare cases, this was followed by an invitation from the offender’s family to the victim’s family to attend another ceremony at the perpetrator’s homestead. The final stages of the ceremony would involve communication between the ‘liv- ing living’ and the ‘living dead’. A ceremony called nyaradzo (memorial service) would take place to console the victim’s family and to ac- cord them closure. This final ceremony is known as kurova guva, and occurs when the spirit of the deceased is brought back to the realm of the living to perform the duties of an ancestor. It is interesting to note that even after such public confessions were made by offenders, none would be arrested. The police merely en- sured that no violence occurred. Sahwira proved to be instrumental in mediating the payment of reparations (where due) and reconciliation. Oth- er traditional ceremonies and institutions are complementary to nhimbe/ilima and include gata (spiritual autopsy), botso (self-shaming) and chenura (cleansing ceremony). They will be anal- ysed in detail in the following sections. Botso (Self-shaming) Botso is an institution that is used to ap- pease for intra-family wrongdoing, usually when a child abuses a parent. As a transitional justice mechanism, botso works in that it allows the whole community to know the truth as the pro- cess involves the perpetrator wandering around the community telling every person he or she meets the wrongs that they committed. In the process of roaming the villages the perpetrator collects an assortment of grains to be used for brewing beer for his/her cleansing ceremony. This practice is not widespread as cases of in- tra-family violence are usually solved at ‘living ling’ level without escalating the matter to the spiritual or ‘living dead’ level. Interpretation of Botso as a Transitional Justice Mechanism Botso is a system of appeasing an aggrieved, deceased family member wronged or killed by another. If one kills, causes another to be killed 340 EVERISTO BENYERA or otherwise angers a relative, in most cases the mother, and does not seek forgiveness before the aggrieved person dies, the offender must pay reparation by participating in the process of self-shaming (kutandabotso). Using Misener’s (2001) five ‘R’s reveals that this institution is premised as admission of guilt, self-shaming, paying of reparations and reconciliationon real- ity, responsibility, repentance, restitution and reconciliation. The first step as described in the incident above is that there is the dual reality of a disap- peared ex-combatant who served in Zimbabwe’s liberation war, on one hand and that of a young girl inflicted with a series of unexplained misfor- tunes including the failure of the onset of her menstruation despite her age. It was established that the deceased took the responsibility, pos- sessed his daughter, and provide directions to the shallow grave. Repentance was sought by the brother who engineered and caused the deaths. The brother publicly admitted to the of- fense and asked for forgiveness. Inherent in this process of repentance is truth telling which con- stitutes an integral part of transitional justice. The truth was also revealed when the spirit of the deceased led the family to the shallow grave where he had been buried. Reparation was paid and shaming accom- plished when the guilty sibling spent seven nights in the same room where his brother’s re- mains were kept. This served as a reminder to the offending brother of his wrongdoing which he thought would go unpunished. Finally, rec- onciliation was achieved when certain rites and rituals were performed after the seven day pun- ishment. Proof that the ceremonies had been a success and accepted by the deceased was that all the afflictions and illnesses which had trou- bled family members suddenly disappeared. The girl who was possessed by her late father’s spir- it started menstruating. It was reported by Vam- be, who is related to the family, that this oc- curred soon after the rites and rituals had been performed. This was taken by many as a sign that reconciliation, healing and closure had tak- en place (pers, comm.,12 June 2012). As noted earlier, among the Shona people the three processes of reconciliation, healing and closure occur at the three levels of life, that is, the ‘living unborn’, the ‘living living’ and the ‘living dead’. The next section discusses anoth- er form of traditional transitional justice mecha- nisms, nyaradzo, which means memorial service. Nyaradzo (Memorial Service) Nyaradzo is a transitional practice meant to bring closure to the family of the deceased and is usually performed a month after burial. Most of the victims of politically motivated violence in Zimbabwe were not properly mourned, with some having their nyaradzo postponed for se- curity reasons. This was likened to a postponed burial by the Executive Director of Heal Zimba- bwe, Rashid Mahiya, who observed that these memorials acted as a platform to sensitise com- munities to the dangers of committing human rights violations. This invested the mechanism with the capacity of a deterrent, a key aspect of an effective transitional justice mechanism. In this case, during the nyaradzo, religious and traditional leaders were invited to attend. It was during the speeches that formed part of the nyaradzo that issues of politically motivated vio- lence were discussed. The victims’ family repre- sentatives and those supporting the perpetrators were also given a platform to air their views, with perpetrators or their family representatives open- ly asking for forgiveness and warning others not to commit the same crimes. Since, most of the families were poor; Heal Zimbabwe donated tomb- stones which were erected as part of the memori- al service. Nyaradzo culminated with the erection of these tombstones as memorials, to remind the community of the gross violations of human rights and as a mechanism of deterrence. Mahiya was convinced that the program was effective because all the communities Heal Zim- babwe worked with sympathised with the vic- tims’ families, publicly acknowledging the crimes of the perpetrators and sharing the blame for allowing members of the community to commit such atrocities. In the process, community lead- ers and the head of the perpetrator’s family also showed remorse for failing both the victim’s fam- ily and the community at large in their leader- ship because these fatalities were committed under their jurisdiction. Such acts of public ac- knowledgement are not found in idealist transi- tional justice mechanisms such as prosecutions. This, further, strengthens the role of traditional transitional justice mechanisms in reconciling post-conflict communities. EXPLORING ZIMBABWE’S TRADITIONAL TRANSITIONAL JUSTICE 341 In the absence of the rigours of due process of cross-examination, truth telling was usually not difficult to achieve under traditional transi- tional justice mechanisms. This rendered heal- ing and closure possible, bringing the prospects of reconciliation even closer. Mahiya stated that he was happy with the progress his organisa- tion made because the public acknowledgement of wrongdoing made by family heads, communi- ty leaders and traditional authorities put pres- sure on political leaders who had either ordered or presided over the human rights abuses to acknowledge their wrongdoing (pers. comm. 21 September 2013). This is unlikely to happen in prosecutions. Kurovaguva/Magadziro/Umbuyiso The traditional ceremony of kurovaguva/ magadziro/umbuyiso is common among both the Shona and the Ndebele people. It is the cul- mination of all the rituals meant to ensure that the spirit of the deceased rests in peace before being summoned by the ‘living living’ and au- thorised by the ‘living dead’ to return as an an- cestor. The purpose of kurova guva (guva liter- ally means grave) is to bring back the spirit of the dead so that s/he can reside with the family, protecting and blessing it while occasionally punishing it for misbehaviour by, for example, allowing calamities to befall it. In most cases, nyaradzo must be performed beforekurovagu- va and for adults, theceremonies happen approx- imately a year after burial. The modalities, con- sultations, ceremonies and rituals that accom- pany the institution of guva are unfortunately beyond the scope of this discussion. This paper is concerned with a specific is- sue: exploring how the institution of guva was transformed to function as a transitional justice mechanism. The answer is found in the addi- tional roles that the institution fulfilled. Most importantly, it offered the families and communi- ties final closure while reuniting them with the spirit of their dead relative. This completed the trilogy of life forms for Shona and Ndebele be- liefs which are the ‘living unborn’, the ‘living living’ and the ‘living dead’. The absence of one of these three life forms is deemed unjust and considered an abomination, capable of bringing the most unbearable calamities as there is no connection with God. This is believed possible only through the intercession of the ‘living dead’ on behalf of the ‘living living’ and the ‘living unborn’. Employing the two theoretical frameworks of the five pillars of transitional justice and the five ‘R’s of restorative justice to ascertain the efficacy of guva as a transitional justice mecha- nism revealed that it is probably the best bot- tom-up, victim-centred mechanism at work in Zimbabwe. The five pillars of transitional justice are truth telling, reparations, collective memory and memorialisation, trials and institutional re- form (Chitsike 2012: 3), while the five ‘R’s of re- storative justice are reality, responsibility, repen- tance, restitution and reconciliation (Misener 2000). In addition, guva is efficacious as a form of education. As a transitional justice mecha- nism kurova guva fulfils the following functions. Firstly, it serves to officially communicate with the ‘living dead’, especially those recently de- parted to rest in peace. Secondly, it enables the eldest living male offspring of the deceased to inherit his father’s estate, and lastly, it serves as a forum for the collective and public memoriali- sation of the dead. Other ceremonies and rituals that are per- formed before guva such as nyaradzo, kutand- abotso, chenura, and gata are prerequisites of kurovaguva. Gata as a form of spiritual autop- sy that ensures that the cause of death is ascer- tained and that those responsible are notified so that the processes of reparation leading to reconciliation can commence. In cases where a child has killed a parent, especially a mother, the perpetrator has to undergo a self-shaming pro- cess called kutandabotso. This requires dress- ing in rags and roaming the villages, confessing while collecting donations of grain to be used in his/her cleansing ceremony. Reparations are paid by the perpetrator to the victim’s family and the traditional leaders. Reparations are considered due to the traditional leaders because spilling innocent blood is a crime against the land. This crime warrants that the offender pays cattle to the Chief as an admission of guilt and also in reparation to the traditional authorities. The cat- tle are used in part for the traditional cleansing of the land over which the Chief presides. Since these ceremonies are attended by all community members, they present a perfect platform for collective public memorialisation. Chenura (Cleansing Ceremonies) Once the family and community-based ritu- als of nyaradzo and guva have been performed, the healing process in rural areas usually takes on a grander dimension in which the land is 342 EVERISTO BENYERA cleansed of spilt blood, made holy and ready to receive the blessings of rain and bumper har- vests. The essence of cleansing ceremonies as realist transitional justice mechanisms is that human rights abuses defile the land, leading the ancestors to withdraw blessings, chief among them rain and peace. Such cleansing ceremo- nies reconnect the communities with their an- cestors. In these circumstances, realist traditional justice mechanisms are the only key to unlock- ing these blessings which the communities be- lieve they are entitled to. The traditional leaders preside over the cleansing ceremonies. The of- fender provides the animal which is slaughtered during the ceremony, and traditional beer is brewed and consumed as part of the ceremony. The area spirit medium and the chief lead and guide the ceremonies. An example of such a cleansing ceremony was held in Zaka’s Ward 24 under Chief Bota in Masvingo Province on 4 December 2010. All the Headmen who fell under Chief Bota’s jurisdiction were invited and they attended together with their respective subjects. This series of cleansing ceremonies were cele- brated as they had managed to bring perpetra- tors and their victims together. Politicians from both the Zimbabwe African National UnionPa- triot Front (ZANU PF) and the main Movement for Democratic Change (MDC T) were also present. Villagers discussed the issue of politi- cally motivated human rights abuses on Satur- day 5 December and devised mechanisms to avoid a recurrence and to help victims, especial- ly widows and orphans. Chief Bota’s cleansing ceremony implied that his respective Headmen could handle criminal cases committed post-2008 in their own traditional courts, something which was almost impossible before the cleansing cer- emonies were held. Besides handling such cas- es, the Headmen were mandated by the Chief to initiate their own healing and reconciliation ini- tiatives at local level. Another cleansing ceremony was held in the Midlands Province, Gokwe District in Madzivaz- vido at Chief Chireya’s homestead. This was probably the biggest chenura held in line with the 2008 election violence. Addressing more than 700 people who attended, Chief Chireya noted that: ...lives were lost... and blood was spilled, that angered the spirit mediums and that should never be repeated again. We say this because we are Chiefs and have a duty to protect the people... The chenura was attended by most Sub- Chiefs and Headmen who fell under Chief Chireya. These included Chiefs Mashame, Nem- budzia, Goredema, Makore, Gumunyu, Nemang- we and Madzivazvido. These combined Chiefs and Sub-Chiefs have a combined jurisdiction with a population of 358 650 (Zimbabwe Census Report 2012: 42). Gokwe Senator Mutingwende, representing politicians, also attended. The po- lice, army and the civil service were also strong- ly represented signifying the importance of the chenura to the country’s peace building pro- cess. The implication is that cleansing ceremo- nies and related traditional transitional justice mechanisms have potentially reached over 350 000 people in Gokwe District alone. This attests to their wide application. CONCLUSION This paper explored traditional transitional justice mechanisms in Zimbabwe. It demonstrat- ed the existence of peace building initiatives that are victim-centred and bottom-up and, most im- portantly, it proved that transitional justice oc- curs in Zimbabwe without the involvement of the state. The traditional transitional justice mechanisms discussed in this paper utilise the family and the community as the core units around which reconciliation is centred. The ad- vent of mass civilian-on-civilian violence in ad- dition to uniformed force-on-civilian violence has necessitated that traditional transitional justice mechanisms are adapted to the new realities of gross human rights abuses, usually by known perpetrators. In Zimbabwe, a plethora of these mechanisms have been positively utilised to force offenders to face the reality of their wrong- ful actions, to take responsibility, seek repen- tance, pay restitution and reconcile with their victims. Besides, these traditional transitional justice mechanisms have ensured truth telling, compensation and forgiveness, resulting in rec- onciliation. Where reparations have been due, offenders have used the institutions of botso and ngozi to seek forgiveness and achieve rec- onciliation. RECOMMENDATIONS To realise true healing and forgiveness it is important for victims and offenders to go EXPLORING ZIMBABWE’S TRADITIONAL TRANSITIONAL JUSTICE 343 through all the stages of transitional justice un- til they realise closure. Although, the processes require time and the harnessing of stakeholders working together to realise an effective system, it has been proven that they are worth the in- vestment. This paper recommends that this framework be utilised in other rural communities of Zimbabwe where these institutions had be- come dormant to achieve bottom-up, victim cen- tred healing and closure. A second recommen- dation is that these mechanisms should not work as parallels to the existing justice systems but should be used to compliment the justice sys- tem by determining closure in both the legal and traditional African methods of addressing hu- man rights violations and unnatural deaths caused by perpetrators known to the victim. NOTES 1 While the rural/urban dichotomy in seeking transi- tional justice is not solid, it is here used mainly as a geographical locator of where most of these tradi- tional ceremonies, rituals and rites are carried out. 2 Ngozi is a metaphysical phenomenon, cultural prac- tice and a belief system stemming from a particular cosmology in which those who die unnaturally are believed to return in spirit form to force those re- sponsible for their death to compensate and recon- cile with the deceased’s family. 3 Botso is an institution that is used to atone for intra-family wrongdoing, usually when a child abus- es a parent. 4 Chenura is a set of cleansing ceremonies undertak- en to appease the land after the commission of a crime such as murder. The Shona people believe that such crimes defile the land, leading the ances- tors to withdraw blessings, chief among them rain and peace. Only after the land would have been cleansed would peace, rain and other blessings re- turn to the land. 5 Nhimbe/ilima is a traditional communal African practice in which communities come together to pool their resources and labour to offer assistance, usually to the vulnerable members of the communi- ty. The same institution is also used for other pur- poses such as pooling labour during peak harvest time. In terms of livelihoods, it is used to shield orphans and vulnerable children as well other child headed households from hunger by providing them with pooled labour to enable them to coup with farming labour demands. 6 In its simplest form, nyaradzo is a memorial service held in honour of the deceased. 7 Gukurahundi is a Shona word meaning separating chuff from grain. It was the name of a military operation which was aimed at eradicating perceived dissidents in the predominantly Ndebele speaking Provinces of Matebeleland and Midlands. The op- eration was executed by a specialised North Korean trained brigade resulting in an estimated death of 20 000 civilians. 8 The parts of the reconciliation process are Reality, Responsibility, Repentance, Restitution and Recon- ciliation. See Don Misener, R. 2001. Restorative justice: a Christian perspective. Kingston and On- tario: Queen’s Theological College. REFERENCES Aschwanden H 1987. Symbols of Death. Gweru: Mam- bo Press. Bangura AK 2005. Ubuntology: An African education- al paradigm that transcends pedagogy, andragogy, ergonagy, and heutalogy. Journal of Third World Stud- ies, xxii(2): 13-53. Biko S 2002. I Write What I Like. Chicago: University of Chicago Press. Bourdillon M 1976. The Shona Peoples: An Ethnogra- phy of the Contemporary Shona, with Special Refer- ence to Their Religion. Gweru: Mambo Press. Braithwaite J 2010. Reconciliation and Architectures of Commitment: Sequencing Peace in Bougainville. Canberra: ANU E Press. Chavunduka G 1980. Witchcraft and the law in Zimba- bwe. Zambezia, VIII: 129-147. Chief Ngonidzashe Marongwe 2013. Personal Com- munication, 2 April. Chief Njerere 2012. Personal Communication, 22 Sep- tember. Chitsike K 2012. Transitional Justice Options for Zim- babwe: A Guide to Key Concepts. Cape Town: Insti- tute of Justice and Reconciliation. du Plessis M, Ford J 2008. Justice and Peace in a New Zimbabwe: Transitional Justice Options. Institute of Security Studies Paper Number 164. Pretoria: Insti- tute of Security Studies. Gelfand M 1956. Medicine and Magic of the MaSho- na. Cape Town: Juta. Gelfand M 1962. Shona Religion. Cape Town: Juta. Gelfand M 1965. The Witch Doctor. London: Harvill Press. Gelfand M 1985. The Traditional Medical Practitioner in Zimbabwe. Gweru: Mambo Press. Government of Zimbabwe 2012. 2012 Census Report. Harare: Government Printer. Hayner P 2003. Unspeakable Truths. New York: Rou- tledge. Kahari G 2011. Personal Communication, 29 Septem- ber. Machakanja P 2010. National Healing and Reconcilia- tion in Zimbabwe: Challenges and Opportunities. Zim- babwe Monograph Series No. 1. Institute for Justice and Reconciliation, Cape Town, South Africa. Mahiya R 2013. Personal Communication, 21 Sep- tember. Misener R 2001.Restorative Justice: A Christian Per- spective. Kingston and Ontario: Queen’s Theologi- cal College. Morse A, Maxwell G 2001. Restorative Justice for Ju- veniles: Conferencing, Mediation and Circles. Ox- ford: Hart Publishing. Nabudere D 2011. Archie Mafeje: Scholar, Activist and Thinker. Pretoria: Africa Institute of South Africa. 344 EVERISTO BENYERA Ndlovu-Gatsheni SJ 2007a. Re-thinking the colonial encounter in Zimbabwe in the early twentieth cen- tury. Journal of Southern African Studies, 33(1): 1 7 3 - 1 9 1 . Ndlovu-Gatsheni SJ 2007b. In Search of Common Ground: Oral History, Human Rights and the United Nations (UN) Council on Human Rights. Keynote Presentation Delivered at the International Confer- ence on Human Rights and Social Justice: Setting the Agenda for United Nations Human Rights Coun- cil, organised by the University of Winnipeg (Global College) as part of Human Rights Action Week, 23- 25 February. Ranger T 1985. Religious studies and political econo- my: The Mwari cult and the peasant experience in Southern Rhodesia. In: WMJ van Binsbergen, JM Schoffeleers (Eds.): Theoretical Explorations in Af- rican Religion. London and Boston: Kegan Paul In- ternational for ASC, pp. 287-321. Ranger T 2000.The Historical Dimensions of Democ- racy and Human Rights in Zimbabwe: Nationalism, Democracy and Human Rights. Volume Two: Colo- nial and Post-colonial Legacies. Harare: University of Zimbabwe Publications. Samkange S, Samkange TM 1979. Hunhuism or Ubun- tuism: A Zimbabwe Indigenous Political Philoso- phy. Salisbury: Graham Publishing. Shea, D. 2000. The South African Truth Commission: The Politics of Reconciliation. Washington DC: Unit- ed States Institute of Peace Press. Tirivangani Augustine 2011. Towards a Theory of Afri- ca Centred Metaphysics: A Critical Exploration of the Ngozi Theme in Selected Zimbabwe Fiction. PhD Thesis. Zimbabwe: University of Zimbabwe. United Nations Security Council 2004.Report of the Secretary-General on the Rule of Law and Transi- tional Justice in Conflict and Post-conflict Societies (S/2004/616). August, 3. From <http://daccessdds. un.org/doc/ UNDOC/GEN/N04/395/29/PDF/N04 39529. pdf> OpenElemen> (Retrieved on 11 June 2 0 1 0 ) . Vambe M 2012. Personal Communication, 12 June. 
work_min2jdpukzaf5gkj3v2kj2he4q	----	Truth, Justice, and Cake Cutting The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Chen, Yiling, John Kwang Lai, David C. Parkes, and Ariel D. Procaccia. 2010. Truth, justice, and cake cutting. In Proceedings of the Twenty-Fourth AAAI Conference on Artificial Intelligence and the Twenty-Second Innovative Applications of Artificial Intelligence Conference: 11-15 July, 2010, Atlanta, Georgia. Menlo Park, CA: AAAI Press. Published Version http://www.aaai.org/ocs/index.php/AAAI/AAAI10/paper/ viewFile/1761/2083 Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:8896229 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#OAP http://osc.hul.harvard.edu/dash/open-access-feedback?handle=&title=Truth,%20Justice,%20and%20Cake%20Cutting&community=1/1&collection=1/2&owningCollection1/2&harvardAuthors=8163de7d1727bd1a0850c7d9a608f710&departmentEngineering%20and%20Applied%20Sciences http://nrs.harvard.edu/urn-3:HUL.InstRepos:8896229 http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP Truth, Justice, and Cake Cutting Yiling Chen Harvard SEAS yiling@eecs.harvard.edu John K. Lai Harvard SEAS jklai@post.harvard.edu David C. Parkes Harvard SEAS parkes@eecs.harvard.edu Ariel D. Procaccia Harvard SEAS arielpro@seas.harvard.edu Superman: “I’m here to fight for truth, justice, and the American way.” Lois Lane: “You’re gonna wind up fighting every elected official in this country!” Superman (1978) Abstract Cake cutting is a common metaphor for the division of a het- erogeneous divisible good. There are numerous papers that study the problem of fairly dividing a cake; a small number of them also take into account self-interested agents and con- sequent strategic issues, but these papers focus on fairness and consider a strikingly weak notion of truthfulness. In this paper we investigate the problem of cutting a cake in a way that is truthful and fair, where for the first time our notion of dominant strategy truthfulness is the ubiquitous one in social choice and computer science. We design both deterministic and randomized cake cutting algorithms that are truthful and fair under different assumptions with respect to the valuation functions of the agents. Introduction The need for resource allocation arises in many AI domains, and in particular in multiagent systems. This has led to a wide interest in the field known as Multiagent Resource Al- location, and to various applications of resource allocation techniques (see the survey by Chevalyere et al. (2006)). Re- source allocation problems deal with either divisible or indi- visible resources, where the distinction is based on whether any fraction of a resource can be given to an agent. Cutting a cake is often used as a metaphor for allocating a divisible good. The difficulty is not cutting the cake into pieces of equal size, but rather that the cake is not uniformly tasty: different agents prefer different parts of the cake, de- pending, e.g., on whether the toppings are strawberries or cookies. The goal is to divide the cake in a way that is “fair”; the definition of fairness is a nontrivial issue in itself, which we discuss in the sequel. The cake cutting problem dates back to the 1940s, and for over sixty years has attracted the attention of mathematicians, economists, and political sci- entists. While most of the work in artificial intelligence, and Copyright c© 2010, Association for the Advancement of Artificial Intelligence (www.aaai.org). All rights reserved. computer science in general, has focused on the allocation of indivisible resources, recent years have seen an increasing interest among computer scientists in the allocation of divis- ible resources (see, e.g, (Edmonds and Pruhs 2006a; 2006b; Procaccia 2009)). Slightly more formally, the cake is represented by the in- terval [0, 1]. Each of n agents has a valuation function over the cake, which assigns a value to every given piece of cake and is additive. The goal is to find a partition of the cake among the agents (while possibly throwing a piece away) that satisfies one or several fairness criteria. In this paper we consider the two most prominent criteria. A proportional al- location is one where the value each agent has for its own piece of cake is at least 1/n of the value it assigns to the entire cake. An envy-free (EF) allocation is one where the value each agent assigns to its own piece of cake is at least as high as the value it assigns to any other agent’s piece of cake. There is a rather large body of literature on fairly cutting a cake according to these two criteria (see, e.g., the books by Robertson and Webb (1998) and Brams and Taylor (1996)). So far we have briefly discussed “justice”, but have not yet mentioned “truth.” Taking the game-theoretic point of view, an agent’s valuation function is its private informa- tion, which is reported to a cake cutting algorithm. We would like an algorithm to be truthful, in the sense that agents are motivated to report their true valuation func- tions. Like fairness, this idea of truthfulness also lends it- self to many interpretations. One variation, referred to as strategy-proofness in previous papers by Brams et al. (2006; 2008), assumes that an agent would report its truthful val- uation rather than lie if there exist valuations of the other agents such that reporting truthfully yields at least as much value as lying. In the words of Brams et al., “...the players are risk-averse and never strategically announce false mea- sures if it does not guarantee them more-valued pieces. ... Hence, a procedure is strategy-proof if no player has a strat- egy that dominates his true value function.” (Brams, Jones, and Klamler 2008, page 362). The foregoing notion is strikingly weak compared to the notion of truthfulness that is common in the social choice lit- erature. Indeed, strategy-proofness is usually taken to mean that an agent can never benefit by lying, that is, for all valua- tions of the other agents reporting truthfully yields at least as much value as lying. Put another way, truth-telling is a dom- inant strategy. This notion is worst-case, in the sense that an agent cannot benefit by lying even if it is fully knowledge- able of the valuations of the other agents. It is also the pre- dominant one in the computer science literature, and in par- ticular in the algorithmic mechanism design literature (Nisan and Ronen 2001). In order to prevent confusion we will avoid using the term “strategy-proof,” and instead refer to the former notion of Brams et al. as “weak truthfulness” and to the latter standard notion as “truthfulness.” To illustrate the difference between the two notions, con- sider the most basic cake cutting algorithm for the case of two agents, the Cut and Choose algorithm.1 Agent 1 cuts the cake into two pieces that are of equal value according to its valuation; agent 2 then chooses the piece that it prefers, giving the other piece to agent 1. This algorithm is trivially proportional and EF.2 It is also weakly truthful, as if agent 1 divides the cake into two pieces that are unequal accord- ing to its valuation then agent 2 may prefer the piece that is worth more to agent 1. Agent 2 clearly cannot benefit by ly- ing. However, the algorithm is not truthful. Indeed, consider the case where agent 1 would simply like to receive as much cake as possible, whereas the single-minded agent 2 is only interested in the interval [0,�] where � is small (for example, it may only be interested in the cherry). If agent 1 follows the protocol it would only receive half of the cake. Agent 1 can do better by reporting that it values the intervals [0,�] and [�, 1] equally, since then it would end up with almost the entire cake by choosing to cut pieces [0,�], [�, 1]. In this paper we consider the design of truthful and fair cake cutting algorithms. To the best of our knowledge we are the first to do so.3 However, there is a major obstacle that must be circumvented: regardless of strategic issues, and when there are more than four agents, even finding a proportional and EF allocation in a bounded number of steps with a deterministic algorithm is a long-standing open prob- lem! See Procaccia (2009) for an up-to-date discussion.4 We shall therefore restrict ourselves to specific classes of valu- ation functions where efficiently finding fair allocations is a non-issue; the richness of our problem stems from our desire to additionally achieve truthfulness. Our results. We first consider deterministic algorithms. We restrict ourselves to the case where the agents hold piece- wise uniform valuation functions, that is, each agent is inter- ested in a collection of subintervals of [0, 1] with the same marginal value for each fractional piece in each subinterval. 1This algorithm is described here with the agents taking actions; equivalently, the algorithm acts on behalf of agents using the re- ported valuations. 2Proportionality and envy-freeness coincide if there are two agents and the entire cake is allocated. 3Just before the acceptance of this paper we learned of an in- dependent working paper that asks similar questions (Mossel and Tamuz 2010), but the technical overlap is minimal. There is also a loosely related paper by Thomson (2007), who showed that in general a truthful and Pareto-optimal algorithm must be dictatorial in the slightly different setting of pie-cutting. 4To be precise, previous algorithmic work assumed that the en- tire cake has to be allocated, but this does not seem to be a signifi- cant restriction in the context of fairness. This is the case when some parts of the cake satisfy a cer- tain property and an agent desires as much of these parts as possible. Our main result is a deterministic algorithm for any number of agents that is truthful, proportional, EF, and polynomial-time. The proof requires many ingredients, in- cluding a seemingly unlikely application of the classic Max- Flow Min-Cut Theorem. We next consider randomized algorithms. We slightly re- lax truthfulness by asking that the algorithm be truthful in expectation, that is, an agent cannot hope to increase its ex- pected value by lying for any reports of other agents. For general valuations, we present a simple randomized algo- rithm that is truthful in expectation, and always outputs an allocation that is proportional and EF. We further establish that this algorithm is tractable under the relatively weak assumption that the agents hold piecewise linear valuation functions, that is where the marginal value in each subinter- val of interest is a linear function. Preliminaries We consider a heterogeneous cake, represented by the inter- val [0, 1]. A piece of cake is a finite union of subintervals of [0, 1]. We sometimes abuse this terminology by treating a piece of cake as the set of the (inclusion-maximal) inter- vals that it contains. The length of the interval I = [x,y], denoted len(I), is y − x. For a piece of cake X we denote len(X) = ∑ I∈X len(I). The set of agents is denoted N = {1, . . . ,n}. Each agent i ∈ N holds a private valuation function Vi, which maps given pieces of cake to the value agent i assigns them. Formally, each agent i has a value density function, vi : [0, 1] → [0,∞), that is piecewise continuous. The func- tion vi characterizes how agent i assigns value to different parts of the cake. The value of a piece of cake X to agent i is then defined as Vi(X) = ∫ X vi(x)dx = ∑ I∈X ∫ I vi(x)dx. We note that the valuation functions are additive, i.e. for any two disjoint pieces X and Y , Vi(X∪Y ) = Vi(X) + Vi(Y ), and non-atomic, that is Vi([x,x]) = 0 for every x ∈ [0, 1]. The last property implies that we do not have to worry about the boundaries of intervals, i.e., open and closed in- tervals are identical for our purposes. We further assume that the valuation functions are normalized, i.e. Vi([0, 1]) =∫ 1 0 vi(x)dx = 1. A cake cutting algorithm is a function f from the valua- tion function of each agent to an allocation (A1, . . . ,An) of the cake such that the pieces are pairwise disjoint. For each i ∈ N the piece Ai is allocated to agent i, and the rest of the cake, i.e., [0, 1] \ ⋃ i∈N Ai, is thrown away. Here we are as- suming free disposal, that is, the algorithm can throw away resources without incurring a cost. We say that an allocation A1, . . . ,An is proportional if for every i ∈ N, Vi(Ai) ≥ 1/n, that is, each agent receives at least a (1/n)-fraction of the cake according to its own valuation. We say that an allocation is envy-free (EF) if for every i,j ∈ N, Vi(Ai) ≥ Vi(Aj ), i.e., each agent prefers its own piece of cake to the piece of cake allocated to any other agent. A proportional (resp., EF) cake cutting algorithm al- ways returns a proportional (resp., EF) allocation. 0 0.5 1 0 1 2 Figure 1: An illustration of the value density function for a piecewise uniform valuation. Note that when n = 2 proportionality implies envy- freeness. Indeed, Vi(Ai) + Vi(A3−i) ≤ 1, and hence if Vi(Ai) ≥ 1/2 then Vi(A3−i) ≤ 1/2. Under the free dis- posal assumption the converse is not true. For example, an allocation that throws away the entire cake is EF but not pro- portional. In general, when n > 2 proportionality neither implies nor is implied by envy-freeness.5 A cake cutting algorithm f is truthful if when an agent lies it is allocated a piece of cake that is worth, accord- ing to its real valuation, no more than the piece of cake it was allocated when reporting truthfully. Formally, denote Ai = fi(V1, . . . ,Vn), and let V be a class of valuation functions. The algorithm f is truthful if for every agent i, every collection of valuations functions V1, . . . ,Vn ∈ V, and every V ′i ∈ V, it holds that Vi(fi(V1, . . . ,Vn)) ≥ Vi(fi(V1, . . . ,Vi−1,V ′i ,Vi+1, . . . ,Vn)). Deterministic Algorithms and Piecewise Uniform Valuations As noted in the introduction, in general there are no known bounded deterministic proportional and EF cake cutting al- gorithms for more than four agents, even if one is not con- cerned about strategic issues. Therefore, in this section we restrict ourselves to a specific class of valuation functions. We say that a valuation function Vi is piecewise constant if and only if its corresponding value density function vi is piecewise constant, that is [0, 1] can be partitioned into a finite number of intervals such that vi is constant on each interval. We say that Vi is piecewise uniform if moreover vi is either some constant c ∈ R+ (the same one across intervals) or zero. See Figure 1 for an illustration. Piecewise uniform valuation functions imply that agent i ∈ N is uniformly interested in a finite union of inter- vals, which we call its reference piece of cake and denote by Ui. For example, in Figure 1, Ui = [0, 0.25] ∪ [0.6, 0.85]. Given a piece of cake X, it holds that Vi(X) = len(X ∩ Ui)/len(Ui). From the computational perspective, the size of the input to the cake cutting algorithm is the number of bits that define the boundaries of the intervals in the agents’ reference pieces of cake. In the rest of this section we assume that the valuation functions are piecewise uniform. We believe that piecewise uniform valuations are very natural. An agent would have such a valuation function if it is simply interested in pieces of the good that have a certain property, e.g., a child only 5If free disposal is not assumed, that is, the entire cake is allo- cated, then envy-freeness implies proportionality for any n. likes portions of the cake that have chocolate toppings, and wants as much cake with chocolate toppings as possible. We consider more general valuations in the next section on ran- domized algorithms. A deterministic algorithm Before introducing our algorithm we present some required notation. Let S ⊆ N be a subset of agents and let X be a piece of cake. Let D(S,X) denote the portions of X that are valued by at least one agent in S. Formally, D(S,X) =(⋃ i∈S Ui ) ∩X, and is itself a union of intervals. Let avg(S,X) = len(D(S,X))/|S| denote the average length of intervals in X desired by at least one agent in S. We say that an allocation is exact with respect to S and X if it allocates to each agent in S a piece of cake of length avg(S,X) comprised only of desired intervals. Clearly this requires allocating all of D(S,X) since the total length of allocated intervals is avg(S,X) · |S| = len(D(S,X)). Sup- pose S = {1, 2} and X = [0, 1]: if U1 = U2 = [0, 0.2] then agents 1 and 2 receiving [0, 0.1] and [0.1, 0.2] respectively is an exact allocation; but if U1 = [0, 0.2],U2 = [0.3, 0.7] then there is no exact allocation. The deterministic algorithm for n agents with piecewise uniform valuations is a recursive algorithm that finds a sub- set of agents with a certain property, makes the allocation decision for that subset, and then makes a recursive call on the remaining agents and the remaining intervals. Specifi- cally, for a given set of agents S ⊆ N and a remaining piece of cake to be allocated X, we find the subset S′ ⊆ S of agents with the smallest avg(S′,X). We then give an exact allocation of D(S′,X) to S′. We recurse on S \S′ and the intervals not desired by any agent in S′, i.e. X \D(S′,X). The pseudocode of the algorithm is given as Algorithm 1. Algorithm 1 (V1, . . . ,Vn) 1. SUBROUTINE({1, . . . ,n}, [0, 1], (V1, . . . ,Vn)) SUBROUTINE(S, X, V1, . . . ,Vn): 1. If S = ∅, return. 2. Let Smin ∈ argmin S′⊆S avg(S′,X) (breaking ties arbitrarily). 3. Let E1, . . . ,En be an exact allocation with respect to Smin,X (breaking ties arbitrarily). For each i ∈ Smin, set Ai = Ei. 4. SUBROUTINE(S \Smin,X \D(Smin,X), (V1, . . . ,Vn)). In particular, Steps 2 and 3 of SUBROUTINE imply that if S = {i} then Ai = D(S,X). For example, sup- pose X = [0, 1], U1 = [0, 0.1], U2 = [0, 0.39], and U3 = [0, 0.6]. In this case, the subset with the smallest aver- age is {1}, so agent 1 receives all of [0, 0.1] and we recurse on {2, 3}, [0.1, 1]. In the recursive call, set {2} has average 0.39 - 0.1 = 0.29, set {3} has average 0.6 - 0.1 = 0.5, and set {2, 3} has average (0.6 − 0.1)/2 = 0.25. As a result, the entire set {2, 3} is chosen as the set with smallest aver- age, and an exact allocation of [0.1, 1.0] is given to agents 2 and 3. One possible allocation is to give agent 2 [0.1, 0.35] and agent 3 [0.35, 0.6]. Note that, if agent 1 uniformly val- ues [0, 0.2] instead, the first call would choose {1, 2} as the subset with the smallest average, equally allocating [0, 0.39] between agents 1 and 2 and giving the rest, [0.39, 0.6], to agent 3. An analysis of the two agent algorithm. To gain intuition, consider the case of two agents; designing truthful, propor- tional and EF algorithms even for this case is nontrivial. As- sume that len(U1) ≤ len(U2) for ease of presentation. If in addition, len(U1) > len(U1 ∪ U2)/2 then set {1, 2} has the smallest average and we divide U1 ∪ U2 exactly, with each agent getting all of Ui \ U3−i and sharing U1 ∩ U2 in a way that len(A1) = len(A2). Otherwise, agent 1 gets all of U1 and agent 2 gets U2 \U1. The algorithm tries to give both agents the same length, with each agent always getting at least half of its desired intervals, leading to proportion- ality and EF because of piecewise uniform valuations. For sufficient overlap in desired intervals, each receives exactly half of U1 ∪ U2. For totally disjoint reference pieces, each receives just its reference piece. We defer a discussion of truthfulness to the general algorithm; the crux here is to note that each agent i receives all of Ui \U3−i, and the algorithm precludes overclaims through providing a decreasing share of Ui ∩U3−i as len(Ui) increases. Exact Allocations and Maximum Flows. Before turning to properties of truthfulness and fairness, we point out that so far it is unclear whether Algorithm 1 is well-defined. In particular, the algorithm requires an exact allocation E with respect to the subset Smin and X, but it remains to show that such an allocation exists, and to provide a way to compute it. To this end we exploit a close relationship between exact allocations and maximum flows in networks. For a given set of agents S ⊆ N and a piece of cake to be allocated X, define a graph G(S,X) as follows. We keep track of a set of marks, which will be used to generate nodes in G(S,X). First mark the left and right boundaries of all intervals that are contained in X. For each agent i ∈ N and subinterval in Ui, mark the left and right boundaries of subintervals that are contained in Ui ∩ X. When we have finished this process, each pair of consecutive markings will form an interval such that each agent will either uniformly value the entire interval or value none of the interval. In G(S,X), create a node for each interval I formed by con- secutive markings, and add a node for each agent i ∈ N, a source node s, and a sink node t. For each interval I, add a directed edge from source s to I with capacity equal to the length of the interval. Each agent node is connected to t by an edge with capacity avg(S,X). For each interval-agent pair (I,i), add a directed edge with infinite capacity from node I to the agent i if agent i desires interval I. For example, suppose U1 = [0, 0.25] ∪ [0.5, 1] and U2 = [0.1, 0.4]. If X = [0, 1] then the interval markings will be {0, 0.1, 0.25, 0.4, 0.5, 1}. Agent 1 values [0, 0.1], both agents value [0.1, 0.25], agent 2 values [0.25, 0.4], neither agent values [0.4, 0.5] and agent 1 values [0.5, 1]. It holds that len(D({1, 2}, [0, 1])) = 0.9. Average values are 0.75, 0.3 and 0.45 for sets {1},{2} and {1, 2} respectively. See Figure 2 for an illustration of the induced flow network. s t 0.5, 1 0, 0.1 0.1, 0.25 0.4, 0.5 0.25, 0.4 1 2 0.5 0.1 0.15 0.1 0.15 ∞ ∞ ∞ ∞ ∞ 0.45 0.45 Figure 2: The flow network induced by the example. Lemma 1. Let S ⊆ N, and let X be a piece of cake. There is a flow of size len(D(S,X)) in G(S,X) if and only if for all S′ ⊆ S, avg(S′,X) ≥ avg(S,X). Below we only prove the “if” direction, which is the one we need, using an application of the classic Max-Flow Min- Cut Theorem (see, e.g., (Cormen et al. 2001)). Proof of “if ”. Assume that for all S′ ⊆ S, avg(S′,X) ≥ avg(S,X). By the Max-Flow Min-Cut Theorem, the mini- mum capacity removed from a graph in order to disconnect the source and sink is equal to the size of the maximum flow. The only edges with finite capacity in G(S,X) are the ones that connect agent nodes to the sink, and the ones that con- nect the source to the interval nodes. Construct a candidate minimum cut by disconnecting some set of agent nodes T ⊆ S from the sink at cost |T | ·avg(S,X) and then disconnecting all the (s,I) connec- tions to interval nodes I desired by an agent i ∈ S\T . This means that the total additional capacity we need to remove is len(D(S \T,X)), the total length of intervals desired by at least one agent in S \ T . By assumption, this is at least |S \ T| · avg(S,X). As a result, this cut has capacity of at least |T |·avg(S,X)+|S\T|·avg(S,X) = |S|·avg(S,X) = len(D(S,X)). The following lemma establishes that this flow of size len(D(S,X)) in G(S,X) is, in particular, characterizing an exact allocation. We omit the proof, which follows from the construction of the network. Lemma 2. Let S ⊆ N, and let X be a piece of cake. There exists an exact allocation with respect to S,X if and only if there exists a maximum flow of size len(D(S,X)) in G(S,X). By combining Lemma 1 and Lemma 2 we see that the algorithm is indeed well-defined: if S has the smallest av- erage then there exists an exact allocation with respect to S,X.6 Moreover, we obtain a tractable algorithm for com- puting an exact allocation, by computing the maximum flow and deriving an exact allocation. A maximum flow can be 6Note that the network in Figure 2 does not satisfy the average minimality requirement and does not provide a corresponding exact allocation. computed in time that is polynomial in the number of nodes, that is, polynomial in our input size (see, e.g., (Cormen et al. 2001)). We remark without proof that it is also possible to implement Step 2 of SUBROUTINE in polynomial time, using similar (but slightly more involved) network flow ar- guments. Therefore, Algorithm 1 can be implemented in polynomial time. Truthfulness and fairness. Our main tool in proving that Algorithm 1 is truthful, proportional and EF is the following lemma (we omit its proof due to space constraints). Lemma 3. Let S1, . . . ,Sm be the ordered sequence of agent sets with the smallest average as chosen by Algorithm 1 and X1, . . . ,Xm be the ordered sequence of pieces to be allo- cated in calls to SUBROUTINE. That is, X1 = [0, 1],X2 = X1 \ D(S1,X1), . . . ,Xm = Xm−1 \ D(Sm−1,Xm−1). Then for all i > j, avg(Si,Xi) ≥ avg(Sj,Xj ), and agents that are members of later sets receive weakly more in desired lengths. Envy-freeness now follows immediately from the lemma. Indeed, consider an agent i ∈ N. By “chosen” we mean that the agent was part of the subset with smallest aver- age. The agent does not envy agents chosen in the same call to SUBROUTINE since all agents receive the same length in desired intervals and their valuations are piecewise uni- form. By Lemma 3, the agent does not envy agents chosen in earlier calls because the amount agents receive weakly in- creases with each call. The agent does not envy agents cho- sen in later calls because all intervals desired by the agent are removed from consideration when the agent receives its allocation. We provide a sketch of truthfulness, which follows by showing that an agent i ∈ N has no incentive to change the choice of Smin and cannot profitably manipulate the exact allocation for a given Smin. 1. Manipulations that change Smin. Consider two subcases. (a) When i reports truthfully, Smin = S′, i /∈ S′. An agent cannot affect avg(T,X) if i /∈ T , so the agent can- not cause some other S′′, i /∈ S′′ to be chosen. The agent can cause S′′, i ∈ S′′, to be chosen, but then avg(S′′,X) ≤ avg(S′,X) and it follows from Lemma 3 that the agent does not gain. (b) When i reports truthfully, Smin = S′, i ∈ S′. As- sume without loss of generality that |S| ≥ 2. In this case, all agents in S′, including i, receive ex- actly avg(S′,X) = k in intervals. Agent i can cause selection of some S′′ by misstating its valuation. If i ∈ S′′, then avg(S′′,X) ≥ k for this to be profitable. If i /∈ S′′, then S′′ was not chosen when i reports truthfully, so avg(S′′,X) ≥ k. In either case, agents j ∈ S′ \{i} previously received k, but now receive at least k by observing that avg(S′′,X) ≥ k and applying Lemma 3. Agent i receives at most len(D(S′,X)) mi- nus the intervals received by agents j ∈ S′\{i}.7 These agents receive weakly more if i manipulates, and thus, manipulations are not profitable. 7Lemma 3 also applies to agent i, but since it lies, it may receive intervals that are not desired and outside of D(S′,X). 2. Manipulations that change the exact allocation for a given Smin, i ∈ Smin. By definition each agent in Smin receives exactly avg(Smin,X) in desired intervals. If agent i de- creases this value, it receives strictly less. If agent i in- creases this value by lying, then other agents receive more of the actual D(Smin,X), leaving less for agent i. We omit the proof of proportionality due to lack of space, but it follows after establishing that no desired pieces are thrown away. Overall, we have the following theorem. Theorem 4. Assume that the agents have piecewise uniform valuation functions. Then Algorithm 1 is truthful, propor- tional, EF, and polynomial-time. Randomized Algorithms and Piecewise Linear Valuations In the previous section we saw that designing deterministic truthful and fair algorithms is not an easy task, even if the valuation functions of the agents are rather restricted. In this section we shall demonstrate that by allowing randomness we can obtain significantly more general results. A randomized cake cutting algorithm outputs a random allocation given the reported valuation functions of the agents. There are very few previous papers regarding ran- domized algorithms for cake cutting. A rare example is the paper by Edmonds and Pruhs (2006a), where they give a ran- domized algorithm that achieves approximate proportional- ity with high probability. We are looking for a more stringent notion of fairness. We say that a randomized algorithm is universally proportional (resp., universally EF) if it always returns an allocation that is proportional (resp., EF). One could also ask for universal truthfulness, that is, re- quire than an agent may never benefit from lying, regardless of the randomness of the algorithm. A universally truthful algorithm is simply a probability distribution over determin- istic truthful algorithms. However, asking for both univer- sal fairness and universal truthfulness would not allow us to enjoy the additional flexibility that randomization provides. Therefore, we slightly relax our truthfulness requirement. Informally, we say that a randomized algorithm is truthful in expectation if, for all possible valuation functions of the other agents, the expected value an agent receives for its al- location cannot increase by lying, where the expectation is taken over the randomness of the algorithm. We remark that while truthfulness in expectation seems natural, fairness (i.e., proportionality and envy-freeness) is something that we would like to hold ex-post; fairness is a property of the specific allocation that is being made, and continues to be relevant after the algorithm has ter- minated. Interestingly enough, if we were to turn this around, then achieving universal truthfulness and envy- freeness/proportionality in expectation is trivial: simply al- locate the entire cake to a uniformly random agent! A randomized algorithm In order to design a randomized algorithm that is truthful in expectation, universally proportional, and universally EF, we consider a very special type of allocation. In the follow- ing we will not require the free disposal assumption, that is, we will consider partitions X1, . . . ,Xn of the cake such that ⋃ i Xi = [0, 1]. We say that a partition X1, . . . ,Xn is perfect if for all i,j ∈ N, vi(Xj ) = 1/n. Consider the following randomized algorithm. Algorithm 2 (V1, . . . ,Vn) 1. Find a perfect partition X1, . . . ,Xn. 2. Draw a random permutation π over N. 3. For each i ∈ N, set Ai = Xπ(i). Lemma 5. Algorithm 2 is truthful in expectation, univer- sally proportional, and universally EF.8 Proof. The fact that the algorithm is universally propor- tional and universally EF follows from the definition of per- fect partitions: every agent has value 1/n for every piece! We turn to truthfulness in expectation. The value an agent i ∈ N obtains by reporting truthfully is exactly 1/n. If agent i lies then the algorithm may choose a different par- tition X′1, . . . ,X ′ n. However, for any partition X ′ 1, . . . ,X ′ n the expected value of agent i when given a random piece is ∑ j∈N 1 n ·Vi(X′j ) = 1 n  ∑ j∈N Vi(X ′ j )   = 1 n , where the second equality follows from the fact that the val- uation functions are additive. Finding perfect partitions. Lemma 5 holds much promise, in that it is valid for all valuation functions. But there still remains the obstacle of actually finding a perfect partition given the valuation functions of the agents. Does such a par- tition exist, and can it be computed? More than two decades ago, Noga Alon (1987) proved that if the valuation func- tions of the agents are defined by the integral of a continuous probability measure then there exists a perfect partition; this is a generalization of his famous theorem on necklace split- ting. Unfortunately, Alon’s elegant proof is nonconstructive (which is unusual for a proof in combinatorics), and to this day there is no known constructive method under general as- sumptions on the valuation functions. This is not surprising since a perfect partition induces an EF allocation, and find- ing an EF allocation in a bounded number of steps for more than four agents is an open problem. To obtain a computational method, we consider valuation functions that are piecewise linear. A valuation function Vi is considered piecewise linear if and only if its correspond- ing value density function vi is piecewise linear on [0, 1]. Piecewise linear valuation functions are significantly more general than the class of piecewise constant valuation func- tions. A piecewise linear valuation function can be con- cisely represented by the intervals on which vi is linear, and for each interval the two parameters of the linear function. The following lemma provides us with a tractable method of finding a perfect partition when the agents have piecewise linear valuation functions. 8Mossel and Tamuz (2010) make the same observation. Lemma 6. Assume that the agents have piecewise linear valuation functions. Consider the following procedure. We make a mark at 0 and 1, and for each agent i ∈ N make a mark at the left and right boundaries of each interval where vi is linear. Next, we divide each interval Ij between two consecutive marks into 2n consecutive and connected subin- tervals I1j , . . . ,I 2n j of equal length. For each such Ij and ev- ery i ∈ N add the subintervals Iij and I 2n−i+1 j to Xi. Then the overall partition is perfect. The lemma’s proof is omitted. By combining Lemma 6 with Lemma 5 we obtain the following result. Theorem 7. Assume that the agents have piecewise lin- ear valuation functions. Then there exists a randomized al- gorithm that is truthful in expectation, universally propor- tional, universally EF, and polynomial-time. Discussion We have made progress on truthful and fair algorithms for cake cutting. In unpublished work, we can also preclude simpler methods that make only contiguous allocations (and look closer to generalizations of the classic cut-and-choose algorithm) even for two agents both of whom are uniformly interested in a single (but different) subinterval. In future work we would like to generalize the deterministic algorithm to piecewise constant valuations and drop the free-disposal assumption. For practical settings, allowing more expres- siveness (e.g., piecewise linear but a requirement that inter- vals are above some threshold length) seems important. References Alon, N. 1987. Splitting necklaces. Advances in Mathematics 63:241–253. Brams, S. J., and Taylor, A. D. 1996. Fair Division: From Cake- Cutting to Dispute Resolution. Cambridge University Press. Brams, S. J.; Jones, M. A.; and Klamler, C. 2006. Better ways to cut a cake. Notices of the AMS 53(11):1314–1321. Brams, S. J.; Jones, M. A.; and Klamler, C. 2008. Proportional pie-cutting. Int. Journal of Game Theory 36(3–4):353–367. Chevaleyre, Y.; Dunne, P. E.; Endriss, U.; Lang, J.; Lemaı̂tre, M.; Maudet, N.; Padget, J.; Phelps, S.; Rodrı́guez-Aguilar, J. A.; and Sousa, P. 2006. Issues in multiagent resource allocation. Informatica 30:3–31. Cormen, T. H.; Leiserson, C. E.; Rivest, R. L.; and Stein, C. 2001. Introduction to Algorithms. MIT Press, 2nd edition. Edmonds, J., and Pruhs, K. 2006a. Balanced allocations of cake. In Proc. of 47th FOCS, 623–634. Edmonds, J., and Pruhs, K. 2006b. Cake cutting really is not a piece of cake. In Proc. of 17th SODA, 271–278. Mossel, E., and Tamuz, O. 2010. Truthful fair division. Manuscript. Nisan, N., and Ronen, A. 2001. Algorithmic mechanism design. Games and Economic Behavior 35(1–2):166–196. Procaccia, A. D. 2009. Thou shalt covet thy neighbor’s cake. In Proc. of 21st IJCAI, 239–244. Robertson, J. M., and Webb, W. A. 1998. Cake Cutting Algo- rithms: Be Fair If You Can. A. K. Peters. Thomson, W. 2007. Children crying at birthday parties. Why? Journal of Economic Theory 31:501–521. 
work_miyyoo6z4rg4xl5a6jkwaj3vp4	----	oratie Mak 1..21 UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) UvA-DARE (Digital Academic Repository) Justice through European Private Law Mak, C. Publication date 2016 Document Version Final published version Link to publication Citation for published version (APA): Mak, C. (2016). Justice through European Private Law. (Oratiereeks; No. 562). Universiteit van Amsterdam. http://www.oratiereeks.nl/upload/pdf/PDF-5662weboratie_Mak_-_DEF.pdf General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. Download date:06 Apr 2021 https://dare.uva.nl/personal/pure/en/publications/justice-through-european-private-law(e95f93fc-76d2-48ab-a882-124be79f9479).html http://www.oratiereeks.nl/upload/pdf/PDF-5662weboratie_Mak_-_DEF.pdf Justice through European Private Law Justice through European Private Law Rede uitgesproken bij de aanvaarding van het ambt van hoogleraar Privaatrecht, in het bijzonder fundamentele rechten en privaatrecht, aan de Faculteit der Rechtsgeleerdheid van de Universiteit van Amsterdam op 19 februari 2016 door Chantal Mak Dit is oratie 562, verschenen in de oratiereeks van de Universiteit van Amsterdam. Opmaak: JAPES, Amsterdam Foto auteur: Dirk Gillissen © Universiteit van Amsterdam, 2016 Alle rechten voorbehouden. Niets uit deze uitgave mag worden verveelvoudigd, opgeslagen in een geautomatiseerd gegevensbestand, of openbaar gemaakt, in enige vorm of op enige wijze, hetzij elektronisch, mechanisch, door fotokopieën, opnamen of enige andere manier, zonder voorafgaande schriftelijke toestemming van de uitgever. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16B Au- teurswet 1912 jº het Besluit van 20 juni 1974, Stb. 351, zoals gewijzigd bij het Besluit van 23 augus- tus 1985, Stb. 471 en artikel 17 Auteurswet 1912, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3051, 2130 KB Hoofddorp). Voor het overnemen van gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatie- werken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. Esteemed Rector Magnificus, esteemed Dean, dear colleagues, students, family and friends, 1 Judicial dilemmas What laws govern the comedies and tragedies of everyday life? Should the law, for example, determine whether someone had to tell her partner that she had been cheating on him? According to the Dutch Supreme Court, in certain circumstances, the answer to this question is in the affirmative. In its judg- ment of 21 February 2014, the Hoge Raad held that it was possible for a man to avoid a cohabitation agreement on the ground that he had been mistaken about his partner having ended her relationship with another man.1 Had he known that she had still been seeing the other man, he would never have concluded the agreement, which put her in a very favourable financial posi- tion. The woman, who knew or could have known about the man’s mistake, should have informed him of her having briefly resumed her relationship with the other man before the conclusion of the cohabitation contract, thus the Supreme Court ruled. Has justice been done in this case? A lawyer would probably say that this depends on the right application of the law to all circumstances of the case; she would assess whether the conclusion was justified that the man had had a wrong impression of the situation and could therefore avoid the contract on the basis of the Dutch Civil Code. A philosopher would most likely add that it also matters in light of what theory of justice the case is regarded; she would explore whether the outcome of the case could be justified on the basis of, for instance, a utilitarian, communitarian or liberal view. A legal philosopher, or a legal scholar with an interest in philosophy, at this point, may be expected to question the relationship between law and justice itself: To what extent should judges in civil cases take into account prevailing moral views in socie- ty? And what does that mean for cases governed by rules deriving not only from national law, but also from the European Union? 4 In this lecture, I will address the question of how conceptions of justice shape private law in Europe, in particular through adjudication. Private law concerns the relationships between people, as opposed to the relation of an individual to the State, which is governed by public law. My claim will be that, while judges should in principle not interfere with questions of personal morality, they may be required to acknowledge the implications of a society’s political morality for a specific private legal dispute. Starting with the Dutch case described here, a tour of several European jurisdictions will serve to illu- strate the point. It will also clarify why justice in the EU is not only of national importance, but should be considered through the lens of European private law, that is: the interplay of national and European law. Our guide on this tour will be the late American legal philosopher Ronald Dworkin, whose work on the relations between law, morality and justice con- tinues to inspire debate.2 Following his lead, we will set out to explore the relationship between justice and private law in Europe. First, I will look into the task of the judiciary in the light of two views on the theoretical relation between law and morality, using the judgments in the Dutch case by way of illustration (section 2). Subsequently, I will examine why these views are of particular relevance to private legal cases, extending the investigation to the common law of England (section 3). Then, the perspective will be shifted to the interaction of national judges and the Court of Justice of the EU, finding arguments for a pronounced moral awareness of judges in private legal dis- putes that engage with different conceptions of justice (section 4). I will con- clude with a word on fundamental rights (section 5). 2 Law and morality – of hedgehogs and foxes In Ronald Dworkin’s universe,3 law is about the use of state force. ‘Law is a matter of which supposed rights supply a justification for using or withhol- ding the collective force of the state because they are included in or implied by actual political decisions of the past,’ he held.4 Legislation should, accor- dingly, be grounded in the scheme of principles endorsed by society and, thus, be morally coherent.5 A judge, as representative of the state, further- more, has to interpret the law in a coherent manner in so far as possible, assu- ming that legal rights and duties fit with the views of justice and fairness in society.6 ‘Justice’, according to Dworkin, ‘is a matter of the correct or best theory of moral and political rights.’7 Each person will hold his or her own view, based on their personal convictions, of what these rights are. Some of you might JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 5 disapprove of the woman’s conduct in the cohabitation case, while others may not. Still, to what extent should moral convictions influence the legal assess- ment of the case? To Dworkin, justice meant that, so far as possible, coherence should be aspired in the organisation of a society: Legal rules cannot be seen as separa- ble from moral judgments. In his penultimate book Justice for Hedgehogs, he used the metaphor of the hedgehog and the fox to explain this. The metaphor goes back to a line of the ancient Greek poet Archilochus, made famous by Isaiah Berlin:8 ‘The fox knows many things, but the hedgehog knows one big thing.’ While a fox has many tricks, the hedgehog’s only defence is to curl up into a ball. Berlin related this metaphor to people’s different ways of thinking and perceiving the world: ‘For there exists a great chasm between those, on one side, who relate eve- rything to a single central vision, one system, less or more coherent or articulate, in terms of which they understand, think and feel – a single, universal, organising principle in terms of which alone all that they are and say has significance – and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some de facto way, for some psychological or physiological cause, related by no moral or aesthetic principle. (…) The first kind of intellectual and artistic personality belongs to the hedgehogs, the second to the foxes (…).’9 Placing himself with the hedgehogs, Dworkin challenged the (positivist) the- sis of separability of law and morality, which held that it could be determined what the law was in a certain field without making any statements as to what would be morally just and right in that area.10 In Dworkin’s opinion, legal reasoning could never be considered separable from moral argument. In Jus- tice for Hedgehogs, he even went as far as stating that the two were united; law should be seen as a branch of political morality.11 This one-system approach to law and morality is not uncontroversial. A closer look at the Dutch case on the avoidance of a cohabitation agreement demonstrates why. The facts were as follows: The man and woman involved in the dispute had been a couple for almost thirty years, had been living toge- ther for almost twenty, and had three children.12 After the woman had had an affair with another man in 2003, the couple had several serious conversations on their future and decided to go on together. They concluded a cohabitation agreement on 3 August 2004 and renewed it in April 2005. Their relationship ended in 2007. In legal proceedings, the man then claimed for avoidance of 6 CCHHAANNTTAALL MMAAKK the cohabitation agreements, which were mostly beneficial to the woman, on the ground of mistake. He submitted that he had found out in 2007 that his partner had resumed her relationship with the other man for a short period just before entering into the first agreement in August 2004. This was why he felt the agreement had been concluded on a mistaken assumption and should be annulled. Even though his partner had been fully aware of the importance he attached to her affair having ended, she had kept silent on her having resumed (and ended) relations with the other man when she entered into the cohabitation agreement. In light of these facts, it might to some not seem unjust to hold the wo- man’s failure to inform her partner against her, not only morally but also legally. Both the Court of Appeal and Supreme Court, indeed, ruled that the man could be allowed to avoid the contract, since his partner had failed to disclose her unfaithfulness. To others, however, this application of the doctrine of mistake is problema- tic. In fact, both the court of first instance and Advocate-General Wissink, who advised the Hoge Raad in this case,13 were hesitant to mix law with mo- rality. The court of first instance had rejected the man’s claim to avoid the cohabitation contract, considering that it could not be validly determined that the agreement had been concluded under a wrong impression of the situ- ation.14 Since a cohabitation contract did not only govern the financial ar- rangements between the parties, but also had emotional and moral dimen- sions, avoidance on the basis of mistake or fraud should only happen in exceptional cases, thus the court held. Looking into this line of reasoning as well as the subsequent reversal by the Court of Appeal, Advocate-General Wissink leant towards the court of first instance’s views.15 He observed: ‘Whether one partner has to confess unfaithfulness to the other partner, is in my opinion first of all a matter of conscience (…). The moral judgment of this matter does not regard the judge, as Dutch law does not express a general view on the question of whether unfaithfulness should be dis- closed. For several legal judgments, unfaithfulness in a relationship is of no relevance, as is, accordingly, its disclosure. Where it can be relevant, the law should in my opinion be cautious in attaching consequences to a partner’s choice to either or not disclose [the unfaithful conduct].’16 These diverging views attest of two different convictions on how judges should deal with moral dilemmas in private legal disputes. The first under- stands the judicial task as a moral assignment. As the word ‘dilemma’ indica- tes, the judge has to choose the lesser evil in a situation in which a choice has JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 7 to be made between two undesirable alternatives. In this case, either the wo- man would have been able to benefit from the cohabitation agreement, despite her unfaithfulness, or the man would be released from his promises, even though the couple had been in a long relationship and the agreement had been intended to provide the woman with more financial security. Choo- sing between these two alternatives seems to be what the Court of Appeal and Supreme Court have done in this case. The second view, shining through in the court of first instance’s judgment and the Advocate-General’s opinion, on the other hand, holds that it is not the judge’s task to assess the case on its moral merits. Rather, the dispute should first of all be resolved on the basis of legal rules (in this case the rules on avoidance of a contract on the ground of mistake17), which only cautiously may be read in light of morality. Both the Court of Appeal and the Supreme Court seem to have adopted Dworkin’s hedgehog perspective here, integrating the moral reading of legal rights in their judicial task. They defined the legal question that was at stake by considering the case in light of societal views on what behaviour may be ex- pected from people in an affectionate relationship. The court of first instance and the Advocate-General appear to have been hesitant to accept this type of unity of law and political morality. Rather, they emphasised the lack of consensus in Dutch society on whether one partner should confess her unfaithfulness to the other partner upon concluding a co- habitation agreement. This would imply that the moral dilemma of whether the woman should have informed her partner should in principle not affect the answer to the legal question of validity of the cohabitation agreement.18 In a fox-like fashion, law and morality would not necessarily have to be related to one another.19 3 Justice in private law – two concepts of freedom Why does it matter which theoretical view judges follow on the relation between justice and private law? Another example, from England this time, may serve as an illustration. In the English legal system, courts rather than legislatures typically develop rules of private law; there is no Civil Code. Yet, sometimes the question arises whether judges should be the ones to decide on a certain dilemma. This is illustrated particularly well by the case of the con- joined twins who became known to the general public as Jodie and Mary.20 At the heart of the case was the question of whether medical intervention should or should not be allowed. The parents had travelled from the Maltese island of Gozo to seek treatment in Manchester, when they had found out 8 CCHHAANNTTAALL MMAAKK during pregnancy that their twin daughters were conjoined. The twins were born in St. Mary’s Hospital in Manchester on August 8th 2000 and it soon became clear what dilemma their parents, doctors, and eventually the courts were confronted with. The twins were joined at the lower abdomen and shared only one organ, the bladder. While Jodie was feeding and reacting normally, Mary’s brain showed malformations and her heart was pumping very weakly. Through a common artery, Jodie was keeping her sister alive. Predictions were gloomy: As Jodie’s heart was doing all the work for both, she was growing thinner, while Mary was gaining weight. Jodie’s heart would not be able to keep this up for more than three to six months, after which both twins would die. The alternative, a separation of the twins, would offer Jodie a chance to develop and grow up normally, but would mean certain death to Mary. Their parents, who were devout Catholics, did not consent to an operation, as they believed it could not be God’s will to kill one of their daughters in order to enable the other one to survive – both girls had an equal right to life.21 Since the doctors were convinced they could successfully sepa- rate the twins, thus giving Jodie a life that would be worthwhile, the hospital asked for a declaration that the operation could be lawfully carried out wit- hout the parents’ consent. Permission was granted by the Family Division, after which the parents appealed. The Court of Appeal also granted permis- sion and the twins were separated on November 7th 2000. As expected, Mary did not survive the operation. Jodie, whose real name is Rosie, is doing well, as one of the Court of Appeal judges reported at the occasion of the publica- tion of Ian McEwan’s book The Children Act in 2014.22 McEwan’s novel vividly depicts the distress a judge may experience when having to decide a case presenting her with such a moral dilemma as that of the conjoined twins.23 Lord Justice Ward in the actual case observed: ‘There has been some public concern as to why the court is involved at all. We do not ask for work but we have a duty to decide what parties with a proper interest ask us to decide. Here sincere professionals could not allay a collective medical conscience and see children in their care die when they know one was capable of being saved. They could not proceed in the absence of parental consent. The only arbiter of that sincerely held diffe- rence of opinion is the court. Deciding disputed matters of life and death is surely and pre-eminently a matter for a court of law to judge. That is what courts are here for.’24 An explanation for the doubts that were raised as to the judiciary’s involve- ment in the case may be found in the far-reaching interference with the pa- JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 9 rents’ autonomy it entailed. Where parents as legal representatives safeguard the interests of their underage children, the law at the same time puts limits on their freedom to choose how to best serve these interests. In particular, rules of family law give judges the power to overrule parents’ choices in case they consider this to serve the child’s welfare. Still, in the case of Jodie and Mary, it could hardly be said that their parents did not have their best inte- rests in mind; they even travelled halfway across Europe to obtain the best possible medical care for their daughters. What was at stake here were diffe- rent moral assessments of what would be best for the children: While the parents relied on their religious belief that both girls had an equal right to life and that intervention could, thus, not be justified, their doctors wished to separate the twins so as to give one a chance to live. The courts’ decision to permit separation implied a severe limitation of the parents’ freedom to choose what they considered best for their children. Justice in private law adjudication, accordingly, concerns the assessment of different moral views within the legal framework that demarcates a case. Fur- thermore, it regards judges’ awareness of the role they have in determining private parties’ rights against the backdrop of a society’s morality. As Lord Justice Walker observed with regard to the tragic choice25 to be made in this case: ‘The feelings of the twins’ parents are entitled to great respect, especially so far as they are based on religious convictions. But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins’ best interests.’26 Walker here seemed to situate the court’s responsibility on the intersection of two concepts of freedom, a negative and a positive one. In his Four Essays on Liberty,27 Isaiah Berlin defined freedom in a negative sense as concerning the question of ‘[w]hat is the area within which (…) a person (…) is or should be left to do or be what he is able to do or be, without interference by other persons’.28 The notion of positive freedom then involves the question by whom a person is ruled or who is to say what a person is, and she is not, to be or do; it derives from an individual’s wish to be her own master.29 As Berlin observed, the two concepts may conflict with one another: An indivi- dual’s negative freedom from interference may become subject to the ‘tyranny of the majority’ in a democratic society pursuing positive freedom of collec- tive self-direction.30 Reading the Court of Appeal’s judgment in the case of Jodie and Mary in this light provides a clear example of how societal moral views may, on the basis of the ideal of a society’s positive freedom, overrule 10 CCHHAANNTTAALL MMAAKK the views of the parents who freely subjected themselves to the rules of Eng- lish law.31 Summarising, this judgment assumes a relationship between law and mo- rality for the adjudication of private legal cases. Courts are called upon to decide on disputes between private parties, in spite of the fact that they may impose a moral view on individuals, but also because of the fact that they may do so.32 A court’s assessment of the interests of private parties in light of so- cietal morality may overrule moral convictions of individuals who have freely subjected themselves to the rules of the legal system. The court, therefore, was allowed to set aside religious principles in deciding on what treatment would be best for the children, thus overruling the moral convictions of the parents, who as legal representatives had refused consent for the treatment.33 Accor- dingly, the remaining question does not seem to be whether moral argument should be taken into account by judges in civil cases, but rather to what extent and in what manner. In a Dworkinian scheme, then, the Court of Appeal’s reasoning may still be considered to build on a coherent set of principles defined in English law.34 Poet Laureate Andrew Motion evoked a similar image of the British legal system as a whole in the poem he wrote at the occasion of the inauguration of the Supreme Court in 2009:35 ‘Here Justice sits and lifts her steady scales Within the Abbey’s sight and Parliament’s But independent of them both. And bound By truth of principle and argument. A thousand years of judgment stretch behind – The weight of rights and freedoms balancing With fairness and with duty to the world: The clarity time-honoured thinking brings.’ 4 Judges in Utopia – or, Europe for hedgehogs ‘With fairness and with duty to the world’ – does this mean that judges in civil cases have to consider legal questions from a moral perspective from the outset? Broadening our view to the multi-level order of European private law, it becomes clear why this question continues to raise as much controversy as it did in the Dutch and English cases, and a partial answer may be found. JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 11 Europe by nature complicates a unitary understanding of law, morality and justice in private law. The reasons for this are manifold. First, rules of private law do not only derive from national law, but also from the European Union. For example, rules in the Dutch Civil Code concerning the information that parties have to provide to one another when concluding a contract are com- plemented by European rules on specific information that sellers have to give to consumers – there is a plurality of legal sources that apply to private legal disputes. Second, different institutions may be involved in the adjudication of a case. A national judge may ask the Court of Justice of the EU for guidance regarding the interpretation of European rules – there is a plurality of institu- tions. Third, different systems of private law reflect different conceptions of justice. This is illustrated, for instance, by the distinction between the English Common Law tradition and the continental Civil Law tradition and the dis- tinction between ideas of justice expressed in national laws and the EU’s mar- ket-oriented laws – there is a plurality of conceptions of justice in European private law. In light of this plurality of sources, institutions and values in the EU, answering the question to what extent and how judges should integrate moral arguments in their reasoning becomes even more complex. Hedgehogs do not have an easy task here. Since no ‘community of values’ is as yet considered to strengthen the European integration project,36 monist theories such as Dworkin’s justice for hedgehogs do not seem to be able to fully explain the dynamics of a multi-level private legal order. Theories on value pluralism, such as those developed by Berlin, a ‘fox par excellence’,37 might be more successful in clarifying conflicting approaches to private legal disputes.38 An example can be found in the case law of the Court of Justice of the EU. The Court’s Aziz judgment of 201339 formed the starting point of a series of decisions on Spanish mortgages in the aftermath of the economic crisis. The facts were the following: Mr Aziz had concluded a loan agreement with the Catalunyacaixa Bank in Barcelona, which was secured by a mortgage on his family home.40 A number of general terms and conditions that strongly fa- voured the bank were attached to the contract.41 The severe consequences of this contract came to light when the economic crisis hit the Spanish economy. Mr Aziz lost his job and was not able to pay the instalments of the mortgage anymore. The bank then invoked its standard terms to claim back the entire amount of the loan in accelerated enforcement proceedings against Aziz. Spa- nish law provided only very limited possibilities to object, none of which ap- plied in this case. As a result, the bank managed to obtain the property of the house in a public auction that attracted no other bidders and did so for only 12 CCHHAANNTTAALL MMAAKK 50% of the house’s contractually established value. Aziz was left with a remai- ning debt of 40,000 euro and he and his family were evicted from their home. This was, however, not the end of the story. Just before the eviction, Aziz had started proceedings in another court, claiming that the general terms and conditions were unfair. They should be held void and the enforcement pro- ceedings brought to a halt.42 The judge handling the case was sympathetic to Aziz’s claim, in particular since it represented a much bigger social problem in the Spanish housing market. Banks had been able to benefit from one- sided mortgage contracts for a long time, and consumers hardly had a chance to restructure their debts.43 Nevertheless, the judge found that the Spanish law of civil procedure presented an obstacle: Since the assessment of the fairness of the contract terms took place in parallel proceedings, the judge’s findings would not have any effect on the ongoing enforcement proceedings. The rules of civil procedure did not give him any possibilities to stop the eviction from taking place. Yet, the story did not end there either. The rules on unfair terms in con- tracts between businesses and consumers derive from a European Directive.44 The judge in Barcelona, therefore, could bring the problem to the attention of the Court of Justice of the EU, which advises national judges on the interpre- tation of Union law. In a groundbreaking judgment, the Court held that Spa- nish procedural law did not comply with the level of consumer protection required by the EU Directive, since it did not allow the judge who assessed the contract terms to stay the enforcement proceedings while his judgment was pending.45 The Court of Justice’s decision, eventually, inspired a reform of Spanish law.46 The dynamics of the Aziz case can be explained on the basis of value plura- lism, insofar as the case highlighted the consequences of linking substantive EU law to national procedural law.47 The separation of mortgage enforcement proceedings and unfair terms control in Spain strongly favoured banks, which had been able to dominate contractual relationships with home-owners. EU consumer law offered an effective, but highly interventionist counterpoint by forcing a change in the rules of civil procedure. A monist theorist might be able to explain this interference with Spanish law on the basis of the suprema- cy of Union law. A pluralist account would, however, arguably paint a truer picture of the tension between EU law and national procedural autonomy.48 European constitutional theorists have, indeed, developed several models of pluralism to explain the interaction between the Union and its Member States.49 European private lawyers have in recent years joined this debate.50 In both fields, nevertheless, a central question has as yet remained unan- swered: If pluralism offers a convincing explanation for the interaction JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 13 between national and EU laws, can it also provide normative guidance? Should pluralism not only be recognised, but also be embraced as the best model? This brings me to the claim I stated at the beginning of this lecture: While judges should not interfere in questions of personal morality, they may be required to acknowledge the implications of a society’s political morality for a specific private legal dispute. This claim is not so much based on the idea that judges should establish which areas of morality fall within the scope of legally enforceable rights – although this may be part of their task, as we have seen in the Dutch and English cases. Rather, it underlines the importance of the consideration of value pluralism in the dialogue between European courts.51 By defining which different moral views, deriving from different le- vels of governance, affect a case’s outcome, European private law adjudication creates a space within which ideas of freedom and justice can be made expli- cit. This allows for public debate on the extent to which moral views overlap, which, in turn, could inspire the further development of rules of private law by legislatures and judiciaries.52 This type of pluralist model for European private law does not on principle take a stand on whether it should be possible for a judge to eventually recon- cile diverging values in a monist way. It merely advises not to reason away potential conflicts too easily, but rather make them the topic of debate. Any hedgehogs in the audience, though, may find some hope for the future of the European project here. To the extent that shared values emerge from the discourse, a commitment may arise that unites European citizens.53 5 Constitutional imagination Finally, the normative questions inherent in European private law explain why fundamental rights figure prominently in the discussion on what unites and divides the EU. Fundamental rights are rights that have been given spe- cial protection in national constitutional documents and international human rights treaties – as diverse as the right to life and that of effective consumer protection. Fundamental rights bridge the gap between the EU and its Mem- ber States, between negative and positive freedom, and between law and mo- rality. The German philosopher Jürgen Habermas observed that human rights in this respect ‘exhibit a Janus face turned simultaneously to morality and to law. Notwithstanding their exclusively moral content, they have the form of positive, enforceable subjective rights (…).’54 14 CCHHAANNTTAALL MMAAKK European judges in civil cases that touch upon moral questions, therefore, are in the position to address ideas of justice in particular when fundamental rights colour their reasoning. They open up a space for a continuing debate on the foundations of our societies. The role of judges I propose here in this respect calls for ‘utopian thinking’ in the sense described by Martin Loughlin in his article on ‘The Constitutional Imagination’. Loughlin defines ‘Utopia’ as the ‘view from nowhere’, which role is to question established views by offering a vision of what might be: ‘But a utopia is not a mere dream. Although its determining characteristic is not its “realisability” but “the preservation of opposition”, it still aspires to be a scheme that seeks actualisation. Crucially, it is only through this imaginative aspect of discourse that we are able to extract what seems im- plicit in an inherited constitution. Utopia is to constitution what invention is to science.’55 In times of crisis, this is something to keep in mind. Law and institutions, in particular when they regard the rules of private law that govern the internal market, allow us to explore the possibilities and limitations for freedom’s counterpart to emerge: European solidarity.56 Acknowledgements After a journey, it is good to come home. Having arrived at the end of this lecture, I wish to thank all of you who are here today and express my grati- tude to those who have made this moment possible. I thank the University’s Executive Board and the Law Faculty’ Dean for my appointment to this chair on fundamental rights and private law, a topic that concerns the foundations of European private law. Thank you for your recog- nition and support. Then the students, who are the lifeblood of our Faculty. Thank you for as- king more questions than I can ever answer. I learn so much from you. Thank you to the community that populates the Oudemanhuispoort, in particular my colleagues in the Department of Private Law, the Centre for the Study of European Contract Law, the Amsterdam Research Institute for Legal Studies, the Faculty Board and the Scientific Advisory Committee. Thank you also to the Architects, for sharing an interest in postnational rulemaking and for continuing to challenge me to explain what is so special about private law. JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 15 Unfortunately, there is not enough time to thank everyone in person, but allow me to mention the following people: Edgar du Perron, my Doktorvater, who in more recent years I mostly got to work with in his capacity as a Dean. Thank you for the trust you have always shown in me. I hope we will continue to meet as teachers in the PPLE pro- gramme, and I look forward to studying your work now that you have be- come a judge in the Supreme Court. Sincere thanks also to Marco Loos, my second supervisor in the PhD years and now my neighbour at the Poort. Thank you for your honesty and reliabi- lity. A little over ten years ago, you were standing where I am now – very proud to follow in your footsteps. Grazie mille to my academic godfather Giovanni Comandé, who continues to be one of my role models in the world of European private law. My life will always be richer for the years I spent with your group in Pisa. Thank you to Aukje van Hoek, head of our Private Law Department, and Martijn Hesselink, director of the Centre for the Study of European Contract Law. Thank you for endorsing my appointment, for the opportunities you have given me and for everything I have learnt from you. Many thanks to the PhD researchers, whose work brings inspiration and new ideas to our Faculty. Thank you in particular to Anna van Duin and Laura Burgers, for joining me in exploring the role of judges in the Utopia of European private law – and to the Netherlands Organisation for Scientific Research that has made possible their PhD positions. Thank you also to Bea- trijs van Schilfgaarde and Izabela Raiwa, for allowing me to be part of your research projects. Thank you to my fellow teachers, in particular Yolanda Bos and Gerard de Vries, my constant factors in the course on ‘Europees privaatrecht’, and Can- dida Leone, who is building the PPLE course on ‘Principles of European Con- tract Law’ with me. A special word of thanks also to Michael Dowdle, with whom I taught in London, and who flew over from Singapore to be here today. Thank you. Apart from teaching and research, most of my time is spent on research policy and management. Thank you Marjoleine Zieck, Dirk-Jan den Boer, Arthur Salomons, Radboud Winkels and Joke de Vries, as well as Laura Ben- ner and Jordi Beckman, for constructive meetings. I look forward to working with André Nollkaemper, who will be our new Dean from May onwards. Furthermore, I wish to thank Romy Klop for being one of the pillars on which our research institute rests – thank you for your institutional memory and for all the hard work. 16 CCHHAANNTTAALL MMAAKK Besides good colleagues I have been lucky enough to find some true friends at the university. Marija, Joasia, Sacha, Christina and Joana – thank you for your open minds and open hearts. Thank you also for the friends who have left, but who have travelled here today to share this moment with me, in par- ticular Odavia, who came all the way from Gran Canaria. Muchas gracias. Thank you, moreover, to Heather, with whom I have been sharing an office since about eight years. Thank you for your optimism, generosity, and, of course, your music. A very special thanks, moreover, to my friends from the Pisa days, in parti- cular Sabine and Catia, who are here today. From Pisa, to Eastern Germany, to Southern Italy, Paris or Amsterdam – thank you for being such faithful friends. Heartfelt thanks also to Lonneke, my friend since the times we spent edi- ting articles for Ars Aequi magazine and you first brought me, a Rotterdam student, to the Oudemanhuispoort. Thank you for your continuing and warm friendship and, although you now work as a judge, for never judging me. Finally, I wish to thank my family. My big brothers, Joost and Constant – thank you for being here and for reminding me, and the rest of our family, that there is a world outside the law. Thank you, Joost, for your photographs and Constant, for exploring the Amsterdam museums together. My sisters, Elaine and Vanessa – thank you for walking the path of life and academia with me. Despite our efforts to dress differently when we were younger, we still ended up in rather similar outfits today – and I must admit, I am proud of that. Thank you also to Vanessa and Simon for extending our family meetings to New York and Toronto – though I hope we will be able to just see each other in Amsterdam more often soon. A most important thank you, finally, to my parents. My father, who is no longer with us – thank you for all the love, care and support you gave me while growing up and the pride you took in me, Elaine and Vanessa taking up the law, like you. While my work is as theoretical as yours was practical, you taught me one of the most valuable lessons – that law is about people. Thank you for your humanity, I miss you. Last but not least, to my mother – thank you for your intelligence, strength, love and all the beautiful moments we share. Thank you for all the opportuni- ties you created for me in this life. Thank you for being here. Ik heb gezegd. JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 17 Notes 1. Hoge Raad 21 February 2014, ECLI:NL:HR:2014:416, Nederlandse Jurisprudentie 2014/265. 2. E.g. J. Waldron, ‘Jurisprudence for Hedgehogs’, New York University Public Law and Legal Theory Working Papers, paper 417, http://lsr.nellco.org/nyu_plltwp/417 (last consulted 23 December 2015); and the conference papers collected in the Bos- ton University Law Review, http://www.bu.edu/bulawreview/archives/volume-90- number-2-april-2010/ (last consulted 28 January 2016). J. Marías, Dark Back of Time (London: Chatto & Windus, Vintage, 2003), p. 301; Dante, Divina Comme- dia, ‘Inferno’, Canto I. 3. R. Dworkin, Religion without God (Cambridge, Massachusetts: Harvard Universi- ty Press, 2013), Chapter 2. 4. R. Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1986), p. 97. 5. R. Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1986), p. 176. 6. R. Dworkin, Taking Rights Seriously (Duckworth, London 1977; fourth impression with a Reply to Critics, Duckworth, London 1984), p. 105; R. Dworkin, Law’s Em- pire (Cambridge, Massachusetts: Harvard University Press, 1986), p. 225. 7. R. Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1986), p. 97. 8. I. Berlin, The Hedgehog and the Fox. An Essay on Tolstoy’s View of History (1953, reprinted London: Phoenix, 2009). 9. I. Berlin, The Hedgehog and the Fox. An Essay on Tolstoy’s View of History (1953, reprinted London: Phoenix, 2009), p. 3. 10. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961, third impression 2012), p. 185 ff. See, for a discussion of Dworkin’s challenge to this thesis, J. Waldron, ‘Jurisprudence for Hedgehogs’, New York University Public Law and Legal Theory Working Papers, paper 417, http://lsr.nellco.org/nyu_ plltwp/417 (last consulted 23 December 2015). 11. R. Dworkin, Justice for Hedgehogs (Cambridge, Massachusetts: Harvard Universi- ty Press, 2011), p. 405. See also R. Dworkin, Justice in Robes (Cambridge, Massa- chusetts: Harvard University Press, 2006), p. 34. 12. The facts of the case are summarised in para. 3.1 and 3.2 of the Hoge Raad’s judg- ment. 13. In procedures before the Dutch Supreme Court, the Hoge Raad, the court recei- ves a non-binding advice by an Advocate-General, which explains the state of the art of law and legal scholarship on the legal questions presented to the court as well as an opinion on how these questions should be answered. 14. Rechtbank Arnhem 16 December 2009, para. 4.4 and 4.5, as cited by Advocate- General Wissink, para. 2.2. 15. AG Wissink, para. 3.35-3.37. 16. AG Wissink, para. 3.35: ‘Of de ene partner de andere partner ontrouw moet op- biechten, is m.i. in de eerste plaats een gewetenskwestie (…). Het morele oordeel 18 CCHHAANNTTAALL MMAAKK daarover regardeert de rechter niet nu het Nederlandse recht geen algemeen oor- deel heeft over de vraag of ontrouw moet worden gemeld. Voor diverse juridische oordelen is relationele ontrouw niet relevant en dus ook niet of het is gemeld. Waar dit wel relevant kan zijn, moet het recht naar mijn mening voorzichtig zijn om consequenties te verbinden aan de keuze van de betrokken partner om hier- over al dan niet een mededeling te doen.’ 17. Article 6:228 of the Dutch Civil Code. 18. J. Rinkes and E. van Wechem, ‘Kroniek van het vermogensrecht’, Nederlands Ju- ristenblad 2014/1826. 19. Still, neither the first instance court nor the Advocate-General completely severed legal reasoning from moral argument. They explicitly considered that legal rules that determine which personal information parties have to share upon conclusion of a cohabitation agreement do not necessarily have to overlap with moral views prevalent in society on what partners owe to one another in an affectionate rela- tionship; AG Wissink, para. 3.31.1. In other words, state force can, in those situati- ons, not be relied upon to sanction the failure to live up to a moral duty. In reaso- ning thus, they sought to make the decision in this case ‘fit’ with the principles underlying the Dutch legal system. In a similar vein, the court of first instance in Arnhem in another case considered that a husband could not successfully claim for damages in tort law on the basis of his (ex-)wife’s unfaithfulness. Rechtbank Arnhem 15 april 2009, ECLI:NL:RBARN:2009:BI2224, Nederlandse Jurisprudentie 2009/392, cited by AG Wissink, para. 3.25.3. 20. Re A (Children), [2000] EWCA Civ 254. 21. Re A (Children), [2000] EWCA Civ 254, LJ Ward, para. II.13. 22. http://www.dailymail.co.uk/news/article-2780371/Separated-twin-living-life-says- judge-ordered-operation-killed-conjoined-sister.html (last consulted 17 January 2016). 23. I. McEwan, The Children Act (London: Jonathan Cape, 2014), p. 24-28. 24. Re A (Children), [2000] EWCA Civ 254, LJ Ward, para. II.14. 25. I. van Domselaar, The Fragility of Rightness (PhD thesis Amsterdam UvA, 2014), p. 284-286. 26. Re A (Children), [2000] EWCA Civ 254, LJ Walker, ‘Conclusions’. 27. I. Berlin, Liberty (1969; edited by H. Hardy, Oxford: Oxford University Press, 2002). 28. I. Berlin, Liberty (1969; edited by H. Hardy, Oxford: Oxford University Press, 2002), p. 169. 29. I. Berlin, Liberty (1969; edited by H. Hardy, Oxford: Oxford University Press, 2002), p. 177-178. 30. I. Berlin, Liberty (1969; edited by H. Hardy, Oxford: Oxford University Press, 2002), p. 208-210. 31. Parents’ views, as cited by LJ Ward, para. 13: ‘We do not understand why we as parents are not able to make decisions about our children although we respect what the doctors say to us and understand that we have to be governed by the law of England. We do know that everyone has the best interests of our daughters at heart and this is a very difficult situation not only for us as their parents but also JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 19 for all of the medical and nursing staff involved in Mary’s and Jodie’s treatment.’ (emphasis added by LJ Ward) 32. Cf. a liberal principle of political legitimacy; I. van Domselaar, The Fragility of Rightness (PhD thesis Amsterdam UvA, 2014), p. 64. 33. Note, once more, that the fact that the case was assessed under English law is of relevance here. The outcome might have been different had the case been adjudi- cated under the law of the family’s home country, Malta, since religious principles are explicitly included in Article 2 of the Maltese Constitution: ‘(1) The religion of Malta is the Roman Catholic Apostolic Religion. (2) The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong. (3) Religious teaching of the Roman Catholic Apostolic Faith shall be provided in all State schools as part of compulsory educa- tion.’ 34. In which the ‘best interest of the children’ determined which party (parents or hospital) had the strongest case. 35. https://www.supremecourt.uk/visiting/new-artwork.html (last visited 25 January 2016). 36. As opposed to the personified community that is the ‘author of all laws’ in Dwor- kin’s law as integrity; R. Dworkin, Law’s Empire (Cambridge, Massachusetts: Har- vard University Press, 1986), p. 225. 37. J. Waldron, ‘Jurisprudence for Hedgehogs’, New York University Public Law and Legal Theory Working Papers, paper 417, http://lsr.nellco.org/nyu_plltwp/417 (last consulted 23 December 2015), p. 5. 38. Cf. M. Minow and J.W. Singer, ‘In Favor of Foxes: Pluralism as Fact and Aid to the Pursuit of Justice’, Boston University Law Review 2010, p. 903-920. See also Dworkin’s ‘Response’, Boston University Law Review 2010, p. 1080-1081, in which he underscores the distinction between uncertainty and indeterminacy: ‘They de- monstrate, in their illuminating review of dram shop cases, the great variety of available strategies of legal argument. But they do not provide, so far as I see, any reason to think that one of these is not overall best even if we cannot be confident which is – any reason to suppose that professors and judges must just choose, perhaps by throwing a dart.’ 39. Case C-415/11 Aziz v Catalunyacaixa, CJEU 14 March 2013, ECLI:EU:C:2013:164. 40. The facts are summarised in CJEU Aziz, para. 18 ff. 41. These included (i) a default interest of 18.75% in case of late payment; (ii) the possibility to claim the totality of the loan in accelerated enforcement proceedings in case Aziz failed to pay any part of the loan or interest; and (iii) a possibility for the bank to unilaterally determine the value of the house in such enforcement proceedings. 42. CJEU Aziz, para. 27. 43. ‘Más de 300 reclamaciones por las cláusulas abusivas hipotecarias’, El País – Cataluña 5 May 2013, <http://ccaa.elpais.com/ccaa/2013/05/05/catalunya/ 1367767343_786819.html> (last consulted 9 February 2016). 44. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer con- tracts, Official Journal L 095, 21/04/1993, p. 29-34. 20 CCHHAANNTTAALL MMAAKK http://ccaa.elpais.com/ccaa/2013/05/05/catalunya/1367767343_786819.html http://ccaa.elpais.com/ccaa/2013/05/05/catalunya/1367767343_786819.html 45. CJEU Aziz, para. 59. Specific attention was drawn to the fact that Spanish law could not prevent Aziz from losing his family home. He would be left with only a right to financial compensation in case the contract terms were deemed to be unfair; para. 61. 46. Ley 1/2013, BOE No 116, of 15 May 2013, p. 36373-36398. 47. Article 19(1) Treaty on European Union. 48. C. Mak, ‘The One and the Many. Translating Insights from Constitutional Plura- lism to European Contract Law Theory’, European Review of Private Law 2013, p. 1208-1209. 49. N. Walker, ‘The Idea of Constitutional Pluralism’ Modern Law Review 2002, p. 317-359; M. Poiares Maduro, ‘Contrapunctual Law: Europe’s Constitutional Plura- lism in Action’ in N. Walker (ed.), Sovereignty in Action (Oxford: Hart Publis- hing, 2003), p. 501-537; M. Kumm, ‘Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice’, Common Market Law Review 1999, p. 351-386. 50. H.-W. Micklitz, ‘Monistic Ideology versus Pluralistic Reality – Towards a Norma- tive Design for European Private Law’ in L. Niglia (ed), Pluralism and European Private Law (Oxford, Hart publishing, 2013), p. 29-51; M.W. Hesselink, ‘How Many Systems of Private Law are there in Europe?’, in L. Niglia (ed), Pluralism and European Private Law (Oxford, Hart publishing, 2013), p. 199-247; V. Mak, ‘The Character of European Private Law’ (inaugural lecture Tilburg, 19 June 2015). 51. On the extent to which this assumes a shared vision on the judiciary’s task, see E. Mak, ‘The Possibility of a European Judicial Culture’ (inaugural lecture Rotter- dam, 21 November 2014). 52. C. Mak, ‘Judges in Utopia. Fundamental Rights as Constitutive Principles of a European Private Legal Culture’, in K.P. Purnhagen and G. Helleringer (eds), To- wards a European Legal Culture (Oxford/Baden-Baden/München: Hart/Nomos/ Beck, 2014), p. 375-395. Inspired by J. Habermas’s discourse theory, Between Facts and Norms (Cambridge: Polity Press, 1996), though taking a different view on the role of the division of tasks between judiciary and legislature. 53. J. Habermas, ‘The Crisis of the European Union in Light of a Constitutionaliza- tion of International Law – An Essay on the Constitution for Europe’, in The Crisis of the European Union. A Response (Cambridge: Polity Press, 2012), p. 29, 36-37. For a critical evaluation, see G. Comparato, Nationalism and Private Law in Europe (Oxford: Hart Publishing, 2014), p. 242-247. 54. J. Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’, in The Crisis of the European Union. A Response (Cambridge: Polity Press, 2012), p. 82. 55. M. Loughlin, ‘The Constitutional Imagination’, The Modern Law Review 2015, p. 13. 56. Cf. S. Rodotà, Solidarietà. Un’utopia necessaria (Roma/Bari: Gius. Laterza & Figli, 2014). JJUUSSTTIICCEE TTHHRROOUUGGHH EEUURROOPPEEAANN PPRRIIVVAATTEE LLAAWW 21 
work_mjqdzr5qfrhajgseijwzhex64a	----	Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats Original Investigation | Medical Education Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats Andrea Gurmankin Levy, PhD, MBe; Aaron M. Scherer, PhD; Brian J. Zikmund-Fisher, PhD; Knoll Larkin, MPH; Geoffrey D. Barnes, MD, MSc; Angela Fagerlin, PhD Abstract IMPORTANCE Patient disclosure to their clinician about experiencing an imminent threat is a critical step toward receiving support or assistance. OBJECTIVE To examine the frequency of patients not disclosing their experience of imminent threats to their clinician and their reasons for doing so. DESIGN, SETTING, AND PARTICIPANTS Survey study incorporating results from 2 national, nonprobability samples of 2011 US adults recruited from Amazon’s Mechanical Turk (MTurk) from March 16 to 30, 2015, and 2499 recruited from Survey Sampling International (SSI) from November 6 to 17, 2015. Data analysis was conducted from December 20 to 28, 2018. MAIN OUTCOMES AND MEASURES Self-reported nondisclosure of 4 types of imminent threats (depression, suicidality, abuse, and sexual assault) to their clinician and reasons for nondisclosure. RESULTS There were 2011 participants in the MTurk sample (1210 [60.3%] female; 1696 [60.2%] white; mean [SD] age, 35.7 [12.4] years; age range, 18-79 years) and 2499 participants (1273 [51.0%] female; 1968 [78.8%] white; mean [SD] age, 61.0 [7.6] years; age range, 50-91 years) in the SSI sample. Among those who reported experiencing at least 1 of the 4 imminent threats, 613 of 1292 MTurk participants (47.5%) and 581 of 1453 SSI participants (40.0%) withheld information from their clinician. The most commonly endorsed reasons for withholding this information included being embarrassed (MTurk: 72.7%; SSI: 70.9%), not wanting to be judged or lectured (MTurk: 66.4%; SSI: 53.4%), and not wanting to engage in a difficult follow-up behavior (MTurk: 62.4%; SSI: 51.1%). Respondents who experienced at least 1 of the 4 imminent threats had significantly higher odds of nondisclosure in both samples if they were female (MTurk: odds ratio [OR], 1.66 [95% CI, 1.30-2.11]; and SSI: OR, 1.33 [95% CI, 1.07-1.67]) or younger (MTurk: OR, 0.99 [95% CI, 0.98-1.00]; and SSI: OR, 0.98 [95% CI, 0.97-1.00]). Worse self-rated health was also associated with nondisclosure, but only in the SSI sample (OR, 0.85 [95% CI, 0.74-0.96]). CONCLUSIONS AND RELEVANCE This study suggests that many people withhold information from their clinicians about imminent health threats that they face. A better understanding of how to increase patients’ comfort with reporting this information is critical to allowing clinicians to help patients mitigate these potentially life-threatening risks. JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 Key Points Question How common is it for patients to withhold information from clinicians about imminent threats that they face (depression, suicidality, abuse, or sexual assault), and what are common reasons for nondisclosure? Findings This survey study, incorporating 2 national, nonprobability, online surveys of a total of 4510 US adults, found that at least one-quarter of participants who experienced each imminent threat reported withholding this information from their clinician. The most commonly endorsed reasons for nondisclosure included potential embarrassment, being judged, or difficult follow-up behavior. Meaning These findings suggest that concerns about potential negative repercussions may lead many patients who experience imminent threats to avoid disclosing this information to their clinician. + Supplemental content Author affiliations and article information are listed at the end of this article. Open Access. This is an open access article distributed under the terms of the CC-BY License. JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 (Reprinted) August 14, 2019 1/6 Downloaded From: https://jamanetwork.com/ by a Carnegie Mellon University User on 04/05/2021 https://jama.jamanetwork.com/article.aspx?doi=10.1001/jamanetworkopen.2019.9277&utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 https://jama.jamanetwork.com/article.aspx?doi=10.1001/jamanetworkopen.2019.9277&utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 Introduction Gathering information from patients is essential to clinicians’ ability to help promote, maintain, and restore patients’ health. Previous research has demonstrated that patients frequently withhold relatively mundane, non–life-threatening information (eg, lack of exercise) from clinicians,1,2 but little is known about patient nondisclosure of information about experiencing an imminent threat to their lives (eg, being abused or suicidal). Prior research in this area has primarily been conducted outside of the United States and has a number of limitations: the study samples were constrained to a specific age range, sex, or geographic area; only 1 imminent threat was examined; and/or the scenarios were hypothetical.3-9 In this study, we examined the prevalence of US patients’ self-reported nondisclosure of information to their clinician about 4 imminent threats and their reasons for nondisclosure. Methods The data for this study were collected as part of a larger survey study on patient nondisclosure to clinicians about medically relevant information, such as smoking, not understanding the clinician’s instructions, and not taking medication as prescribed.1 The study was initially conducted with a national, nonprobability sample of US adults aged 18 years and older recruited from Amazon’s Mechanical Turk (MTurk) from March 16 to 30, 2015. Owing to the generally younger skew of the MTurk sample, we recruited a second national, nonprobability sample of US adults aged 50 years and older from Survey Sampling International (SSI) from November 6 to 17, 2015. Sampling quotas were set with the SSI sample so that our sample matched the distribution of sex, age, and race/ethnicity in the US population for this age range. Additional methods for sampling and data collection are described elsewhere.1 Data analysis was conducted from December 20 to 28, 2018. In this analysis, we focused on 4 imminent threats that patients did not disclose to clinicians; participants were asked whether they had ever avoided telling a clinician (defined in the survey as any medical caregiver, such as a doctor, physician’s assistant, or nurse) that they were depressed, had suicidal thoughts, had been abused, or had been sexually assaulted. Participants who did not indicate nondisclosure for a given threat were routed to a page asking whether they had experienced the threat before moving on to the next topic. Participants who indicated nondisclosure were routed to a page where they could select any of the reasons that were applicable for their nondisclosure before moving onto the next threat. The survey is included in the eAppendix in the Supplement. The study was reviewed by the institutional review board of the University of Michigan Medical School. The MTurk survey was approved and the SSI survey was deemed exempt. Consent to participate was indicated electronically immediately prior to being routed to the webpage with the start of the survey. The study followed the American Association for Public Opinion Research (AAPOR) reporting guideline. Statistical Analysis We recoded race and ethnicity into a dichotomous variable, with participants selecting white race/ ethnicity being coded as 1 and participants not selecting white race/ethnicity being coded as 0. Health was reverse-coded so that higher values indicate better self-reported health. Among the participants who experienced at least 1 of the threats, we report descriptive statistics, the percentage who reported ever having avoided telling a clinician about each of the threats, and the reasons they endorsed for doing so. We used multiple logistic regression to examine the demographic characteristics that were associated with whether or not the participant reported avoiding telling a clinician about any of the 4 imminent threats. To assess how often each reason for nondisclosure was endorsed, an aggregate measure for each reason was created by dividing the number of times a reason was endorsed by the total number of nondisclosures (eg, indicating “not JAMA Network Open | Medical Education Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 (Reprinted) August 14, 2019 2/6 Downloaded From: https://jamanetwork.com/ by a Carnegie Mellon University User on 04/05/2021 https://jama.jamanetwork.com/article.aspx?doi=10.1001/jamanetworkopen.2019.9277&utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 http://www.aapor.org/Publications-Media/AAPOR-Journals/Standard-Definitions.aspx wanting to be lectured or judged” for 2 of the 3 types of information a respondent reported not disclosing would yield a value of 66.7%). A statistical significance level of 2-sided P < .05 was used. All analyses were conducted using SPSS statistical software version 22 (IBM) or Stata statistical software version Stata SE 14 (StataCorp). Results Participant Characteristics Full demographic information for the full MTurk sample of 2011 participants (1210 [60.3%] female; 1696 [60.2%] white; mean [SD] age, 35.7 [12.4] years; age range, 18-79 years) and SSI sample of 2499 participants (1273 [51.0%] female; 1968 [78.8%] white; mean [SD] age, 61.0 [7.6] years; age range, 50-91 years) can be found in the eTable in the Supplement and in our earlier publication.1 In the MTurk sample, the 1292 respondents who experienced at least 1 of the 4 imminent threats had a mean (SD) age of 36 (12.1) years (range, 18-77 years) and were predominantly female (66.1%) and white (85.5%). In this sample, 45.4% had a bachelor’s degree or a higher degree, 80.5% rated their health as good to excellent, and 26.7% reported having a chronic illness. The 1453 respondents in the SSI sample who experienced at least 1 of the 4 imminent threats had a mean (SD) age of 60 (7.2) years (range, 50-91 years) and were predominantly female (59.4%) and white (78.3%). In this sample, 36.3% had a bachelor’s degree or a higher degree, 73.1% rated their health as good to excellent, and 45.5% reported having a chronic illness. Frequency of and Reasons for Patient Nondisclosure to Clinicians Of participants who reported experiencing at least 1 of the 4 threats (64.3% for MTurk and 58.1% for SSI), 613 of 1292 MTurk participants (47.5%) and 581 of 1453 SSI participants (40.0%) withheld at least 1 of the threats from their clinician. Figure 1 shows the frequencies of MTurk and SSI participants who reported having withheld information about each individual threat among those having experienced the individual corresponding threat. In the MTurk sample, abuse had the highest rate of nondisclosure (42.2%), followed by depression (38.1%), suicidality (37.8%), and sexual assault (28.8%). In the SSI sample, abuse had the highest rate of nondisclosure (42.3%), followed by sexual assault (41.6%), suicidality (37.0%), and depression (29.0%). Among participants who withheld information, the most commonly indicated reasons included being embarrassed (MTurk: 72.7% [95% CI, 69.3%-76.0%]; and SSI: 70.9% [95% CI, 67.5%-74.4%]), not wanting to be judged or lectured (MTurk: 66.4% [95% CI, 62.8%-70.0%]; and SSI: 53.4% [95% CI, 49.5%-57.2%]), not wanting to have to engage in a difficult follow-up behavior (eg, “taking antidepressant medication or seeing a therapist” for suicidal thoughts) (MTurk: 62.4% [95% CI, 58.8%-66.0%]; SSI: 51.1% [95% CI, 47.2%-55.0%]), and not wanting the information in their medical record (MTurk: 57.1% [95% CI, 53.3%-60.8%]; and SSI: 52.7% [95% CI, 48.8%-56.5%]) (Figure 2). Figure 1. Nondisclosure and Disclosure Frequencies Among Respondents Who Experienced Each Imminent Threat 2500 2000 1500 1000 500 0 R es po nd en ts , N o. Depression Suicidality Abuse Sexual Assault Amazon’s Mechanical TurkA Experienced, disclosed Experienced, no disclosure Imminent Threat 2500 2000 1500 1000 500 0 R es po nd en ts , N o. Depression Suicidality Abuse Sexual Assault Survey Sampling InternationalB Imminent Threat Sample size was 2011 for Amazon’s Mechanical Turk (A) and 2499 for Survey Sampling International (B). JAMA Network Open | Medical Education Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 (Reprinted) August 14, 2019 3/6 Downloaded From: https://jamanetwork.com/ by a Carnegie Mellon University User on 04/05/2021 https://jama.jamanetwork.com/article.aspx?doi=10.1001/jamanetworkopen.2019.9277&utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 Risk Factors Associated With Nondisclosure to Clinicians As shown in Figure 3, in both samples, those who were female (MTurk: odds ratio [OR], 1.66 [95% CI, 1.30-2.11]; and SSI: OR, 1.33 [95% CI, 1.07-1.67]) and younger (MTurk: OR, 0.99 [95% CI, 0.98-1.00]; and SSI: OR, 0.98 [95% CI, 0.97-1.00]) had significantly higher odds of nondisclosure of their experience to a clinician. Poorer self-reported health was also associated with significantly higher odds of nondisclosure in the SSI sample (OR, 0.85 [95% CI, 0.74-0.96]). Race/ethnicity and education were not significantly associated with nondisclosure in either sample. Figure 2. Percentage of Times a Reason Was Endorsed for Nondisclosure Across Types of Information Avoid embarrassment Avoid judgment or lecture Avoid difficult follow-up behaviora Did not want in medical record Did not think clinician could help Concern about appearing weakb Concern about family finding out Did not seem relevant Did not want to be perceived as a difficult patient Bad prior experience Wanted clinician to like them R ea so ns fo r N on di sc lo su re 0 10080 Frequency, % 604020 Mturk sample SSI sample Denominators were the total number of reasons for nondisclosure selected for each threat. Column totals may exceed 100% because participants could check multiple reasons. Error bars indicate 95% confidence intervals; MTurk, Amazon’s Mechanical Turk; and SSI, Survey Sampling International. a Examples of potentially difficult behaviors were provided in this response option for each threat (eg, “take antidepressants or see a therapist” for suicidal thoughts). b Reason only offered for nondisclosure of depression. Figure 3. Odds of Nondisclosure of Imminent Threats Age Sex (male or female) Race/ethnicity (white or nonwhite) Education Self-reported health Chronic conditions OR (95% CI) 1.66a (1.30-2.11) 0.99b (0.98-1.00) 0.94 (0.68-1.30) 1.01 (0.94-1.09) 0.94 (0.82-1.07) 1.30 (0.99-1.70) Log OR (95% CI) 0.5 1 1.5 2.0 Log OR (95% CI) 0.6 0.8 1 1.2 1.4 1.6 Age Sex (male or female) Race/ethnicity (white or nonwhite) Education Self-reported health Chronic conditions OR (95% CI) 1.33b (1.30-2.11) 0.98 (0.97-1.00) 0.92 (0.71-1.20) 1.05 (0.99-1.12) 0.85b (0.74-0.96) 1.07 (0.84-1.37) Amazon’s Mechanial TurkA Survey Sampling InternationalB The graphs show adjusted log odds ratios (ORs) for nondisclosure and the columns show ORs for nondisclosure in 1264 participants from the Amazon Mechanical Turk sample (A) and 1398 participants from the Survey Sampling International sample (B). a P < .001. b P < .05. JAMA Network Open | Medical Education Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 (Reprinted) August 14, 2019 4/6 Downloaded From: https://jamanetwork.com/ by a Carnegie Mellon University User on 04/05/2021 Discussion Our findings indicate that clinicians do not receive information from a relatively high percentage of patients facing potentially life-threatening situations, which obviously precludes clinicians from helping patients to mitigate those risks. Women (who are significantly more likely to experience depression,10 suicide attempts,11 abuse,12 and sexual assault12) and those with poorer health (based on self-report) were significantly more likely to withhold this information from their clinician. Thus, consistent with our findings with less acute health risks (eg, lack of exercise),1 the patients who are in greatest need of assistance from their clinicians may be more likely to compromise their care by withholding critical information. The most commonly reported reasons for nondisclosure include concerns related to stigmatization (ie, being embarrassed, not wanting to be judged or lectured, not wanting the information in their medical record) and not wanting to have to engage in a difficult follow-up behavior. Limitations This study has several limitations. A key limitation of our study is the use of online samples, which are not fully representative of the US population, but allowed us to obtain more demographically diverse samples than in-person convenience samples. The similarity in results between the 2 samples, despite their demographic differences, provides support for the validity of our findings. In addition, our study cannot speak to the degree of nondisclosure of these imminent threats (eg, whether a patient who is actively planning suicide said they are mildly suicidal or not suicidal at all) or the frequency of nondisclosure. Conclusions This study reveals an important concern about clinician-patient communication: if patients commonly withhold information from clinicians about significant threats that they face, then clinicians are unable to identify and attempt to mitigate these threats. Thus, these results highlight the continued need to develop effective interventions that improve the trust and communication between patients and their clinicians, particularly for sensitive, potentially life-threatening topics. ARTICLE INFORMATION Accepted for Publication: June 25, 2019. Published: August 14, 2019. doi:10.1001/jamanetworkopen.2019.9277 Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2019 Levy AG et al. JAMA Network Open. Corresponding Author: Andrea Gurmankin Levy, PhD, MBe, Middlesex Community College, 100 Training Hill Rd, Middletown, CT 06457 (alevy@mxcc.edu). Author Affiliations: Department of Social Science, Middlesex Community College, Middletown, Connecticut (Levy); Department of Internal Medicine, University of Iowa, Iowa City (Scherer); School of Public Health, University of Michigan, Ann Arbor (Zikmund-Fisher); Department of Oncology, Wayne State University School of Medicine, Detroit, Michigan (Larkin); University of Michigan Health System, Cardiovascular Medicine and Vascular Medicine, Ann Arbor (Barnes); Department of Population Health Sciences, University of Utah, Salt Lake City (Fagerlin); VA Salt Lake City Health Care System, Salt Lake City, Utah (Fagerlin). Author Contributions: Drs Levy and Scherer had full access to all of the data in the study and take responsibility for the integrity of the data and the accuracy of the data analysis. Concept and design: Levy, Fagerlin. Acquisition, analysis, or interpretation of data: All authors. Drafting of the manuscript: Levy. Critical revision of the manuscript for important intellectual content: All authors. JAMA Network Open | Medical Education Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 (Reprinted) August 14, 2019 5/6 Downloaded From: https://jamanetwork.com/ by a Carnegie Mellon University User on 04/05/2021 https://jama.jamanetwork.com/article.aspx?doi=10.1001/jamanetworkopen.2019.9277&utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 https://jamanetwork.com/journals/jamanetworkopen/pages/instructions-for-authors#SecOpenAccess/?utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 mailto:alevy@mxcc.edu Statistical analysis: Levy, Scherer, Larkin. Obtained funding: Fagerlin. Administrative, technical, or material support: Levy, Barnes. Supervision: Barnes, Fagerlin. Conflict of Interest Disclosures: Dr Barnes reported grants and personal fees from Pfizer and Bristol-Myers Squibb; personal fees from Janssen, Portola, and AMAG Pharmaceuticals; and grants from the National Heart, Lung, and Blood Institute and Blue Cross-Blue Shield of Michigan outside the submitted work. No other disclosures were reported. Funding/Support: This work was funded by Dr Fagerlin’s faculty research funds, which were provided by the University of Michigan Division of General Medicine. Role of the Funder/Sponsor: The funder had no role in the design and conduct of the study; collection, management, analysis, and interpretation of the data; preparation, review, or approval of the manuscript; and decision to submit the manuscript for publication. REFERENCES 1. Levy AG, Scherer AM, Zikmund-Fisher BJ, Larkin K, Barnes GD, Fagerlin A. Prevalence of and factors associated with patient nondisclosure of medically relevant information to clinicians. JAMA Netw Open. 2018;1(7):e185293. doi:10.1001/jamanetworkopen.2018.5293 2. Davis EL, Oh B, Butow PN, Mullan BA, Clarke S. Cancer patient disclosure and patient-doctor communication of complementary and alternative medicine use: a systematic review. Oncologist. 2012;17(11):1475-1481. doi:10.1634/ theoncologist.2012-0223 3. Churchill R, Allen J, Denman S, Williams D, Fielding K, von Fragstein M. Do the attitudes and beliefs of young teenagers towards general practice influence actual consultation behaviour? Br J Gen Pract. 2000;50(461): 953-957. 4. Bushnell J, McLeod D, Dowell A, et al; Mental Health and General Practice Investigation Research Group. Do patients want to disclose psychological problems to GPs? Fam Pract. 2005;22(6):631-637. doi:10.1093/fampra/ cmi080 5. Meyer WJ, Morrison P, Lombardero A, Swingle K, Campbell DG. College students’ reasons for depression nondisclosure in primary care. J Coll Stud Psychother. 2016;30(3):197-205. doi:10.1080/87568225.2016.1177435 6. Keller AO, Valdez CR, Schwei RJ, Jacobs EA. Disclosure of depression in primary care: a qualitative study of women’s perceptions. Womens Health Issues. 2016;26(5):529-536. doi:10.1016/j.whi.2016.07.002 7. Husky MM, Zablith I, Alvarez Fernandez V, Kovess-Masfety V. Factors associated with suicidal ideation disclosure: results from a large population-based study. J Affect Disord. 2016;205:36-43. doi:10.1016/j.jad.2016. 06.054 8. Hegarty KL, Taft AJ. Overcoming the barriers to disclosure and inquiry of partner abuse for women attending general practice. Aust N Z J Public Health. 2001;25(5):433-437. doi:10.1111/j.1467-842X.2001.tb00288.x 9. Rodríguez MA, Sheldon WR, Bauer HM, Pérez-Stable EJ. The factors associated with disclosure of intimate partner abuse to clinicians. J Fam Pract. 2001;50(4):338-344. 10. Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: QuickStats: prevalence of current depression among persons aged �12 years, by age group and sex—United States, National Health and Nutrition Examination Survey, 2007-2010. https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6051a7.htm. Published January 6, 2012. Accessed January 15, 2019. 11. American Foundation for Suicide Prevention. Suicide statistics. https://afsp.org/about-suicide/suicide-statistics. Accessed January 19, 2019. 12. Whitaker DJ, Haileyesus T, Swahn M, Saltzman LS. Differences in frequency of violence and reported injury between relationships with reciprocal and nonreciprocal intimate partner violence. Am J Public Health. 2007;97 (5):941-947. doi:10.2105/AJPH.2005.079020 SUPPLEMENT. eAppendix. Survey Questions eTable. Demographics of Full Samples JAMA Network Open | Medical Education Assessment of Patient Nondisclosures to Clinicians of Experiencing Imminent Threats JAMA Network Open. 2019;2(8):e199277. doi:10.1001/jamanetworkopen.2019.9277 (Reprinted) August 14, 2019 6/6 Downloaded From: https://jamanetwork.com/ by a Carnegie Mellon University User on 04/05/2021 https://jama.jamanetwork.com/article.aspx?doi=10.1001/jamanetworkopen.2018.5293&utm_campaign=articlePDF%26utm_medium=articlePDFlink%26utm_source=articlePDF%26utm_content=jamanetworkopen.2019.9277 https://dx.doi.org/10.1634/theoncologist.2012-0223 https://dx.doi.org/10.1634/theoncologist.2012-0223 https://www.ncbi.nlm.nih.gov/pubmed/11224965 https://www.ncbi.nlm.nih.gov/pubmed/11224965 https://dx.doi.org/10.1093/fampra/cmi080 https://dx.doi.org/10.1093/fampra/cmi080 https://dx.doi.org/10.1080/87568225.2016.1177435 https://dx.doi.org/10.1016/j.whi.2016.07.002 https://dx.doi.org/10.1016/j.jad.2016.06.054 https://dx.doi.org/10.1016/j.jad.2016.06.054 https://dx.doi.org/10.1111/j.1467-842X.2001.tb00288.x https://www.ncbi.nlm.nih.gov/pubmed/11309220 https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6051a7.htm https://afsp.org/about-suicide/suicide-statistics https://dx.doi.org/10.2105/AJPH.2005.079020 
work_mkfb64gqovgc5bjzrfsnusu3we	----	Iatrogenic effect of juvenile justice Iatrogenic effect of juvenile justice Uberto Gatti,1 Richard E. Tremblay,2 and Frank Vitaro2 1University of Genoa, Italy; 2University of Montreal, Canada Background: The present study uses data from a community sample of 779 low-SES boys to investigate whether intervention by the juvenile justice system is determined, at least in part, by particular indi- vidual, familial and social conditions, and whether intervention by the juvenile courts during adoles- cence increases involvement in adult crime. Method: The study considers self-reported crime in childhood and adolescence, and introduces individual, familial and social variables into its analysis. Results: The results show that youths who are poor, impulsive, poorly supervised by their parents, and exposed to deviant friends are more likely, for the same degree of antisocial behavior, to undergo intervention by the Juvenile Court, and that this intervention greatly increases the likelihood of involvement with the penal system in adulthood. The results also show that the various measures recommended by the Juvenile Court exert a differential criminogenic effect; those that involve place- ment have the most negative impact. Keywords: Juvenile justice, labeling, peer contagion, juvenile delinquency, adult crime. The present research analyzed data from a large lon- gitudinal study in order to investigate the possible negative effect of contact with the justice system on young people. The notion that youths who come into contact with judicial institutions may, paradoxically, display higher rates of criminal behavior as adults dates back to the 19th century, when early reformers first noted that juvenile prisons could be regarded as veritable ‘schools of crime’. More recently, two theo- retical perspectives have been proposed to explain the possible negative impact of the juvenile justice system on youths’ delinquent behaviors: the labeling per- spective and the deviant peer contagion perspective (Dodge, Dishion, & Lansford, 2006; Warr, 2002). The labeling perspective focuses on two aspects: the first concerns how and why certain individuals, and not others, undergo intervention by the agencies of social control and are labeled as delinquents; the second concerns the effects of such labeling on subsequent criminal behavior. A key concept in labeling theory is that police officers are more likely to arrest subjects who are poor, deprived or belong to minority groups; that they tend to use their discretionary power in favor of those persons who are socially more privileged; and that the justice system tends to inflict harsher pun- ishment on more deprived individuals. According to the labeling theory, judicial intervention operates selectively by targeting subjects who are disadvan- taged, and facilitates young people’s initiation to a criminal career, in that it tends to transform occa- sional deviance into systematic behavior by modifying offenders’ self-perception, reducing their social opportunities and prompting them to form deviant groups (Becker, 1963; Lemert, 1951; Tannenbaum, 1938). An interesting investigation of the labeling model was carried out by Klein (1986) by means of an experimental test involving the random allocation of youths arrested by the police to three intervention strategies: referral to the juvenile court, referral to social services independent of the courts, or release without the application of any measures. The fact that the youths arrested were randomly assigned to the three different strategies ensured that back- ground and offence characteristics were controlled across conditions. The best results in terms of offi- cial delinquency were obtained by the group that had not undergone any measures; this confirmed the hypothesis that the effect of intervention (whether judicial or social) was counter-productive. In recent years, there has been a tendency to combine labeling theory with other approaches (Sampson & Laub, 1997) and to test for the putative mechanisms through which judicial measures might operate. For example, Bernburg and Krohn (2003) found that official intervention during adolescence increased involvement in crime in adulthood, and that this effect was partly due to the fact that judicial intervention hindered school performance and facil- itated unemployment, or induced involvement in deviant social groups (Bernburg, Krohn, & Rivera, 2006). The broad area of research into the criminogenic effect of associating with deviant peers has also yielded interesting results with regard to the iatro- genic aspect of the juvenile justice system. It is well known that the peer group plays a fundamental role in orienting adolescent behavior. Deviant behavior is no exception, and all investigations have demon- strated that juvenile delinquency is above all a group phenomenon (Vitaro, Tremblay, & Bukowski, 2001; Warr, 2002). Any intervention that places youths within a deviant group therefore risks exacerbatingConflict of interest statement: No conflicts declared. Journal of Child Psychology and Psychiatry 50:8 (2009), pp 991–998 doi:10.1111/j.1469-7610.2008.02057.x � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA and consolidating their antisocial behavior. As an illustration of this, McCord (1978) traced adult subjects some 30 years after they had taken part, as minors, in a well-known prevention program; the subjects treated suffered higher percentages of mental illness, early death, alcoholism, recidivism, failure at work, etc., in later life. On re-examining the available data, she discovered that 125 minors had been sent to summer camps one or more times; and that those who had been to summer camps more than once showed a greater tendency to evolve neg- atively. These findings are in line with the results of another recent study, which showed that placing problem youths in a group treatment program yiel- ded negative long-term results. In particular, the members of the treatment group subsequently developed worse delinquent behavior than the members of the control group (Dishion, McCord, & Poulin, 1999; Warr, 2002). In a recent meta-analysis, Lipsey (2006) found that programs which grouped together deviant peers were 30% less efficacious than programs of individ- ual treatment. More importantly, 42% of group- administered preventive interventions and 22% of group-administered probation interventions actually had adverse effects, in that the behavior of the par- ticipants worsened after the intervention. In light of the importance of deviant peer conta- gion, it may be useful to distinguish between resi- dential programs and non-residential programs. Clearly, peer contagion may occur in both situations; however, it is more likely and more intense under the residential regime (Osgood & Briddell, 2006). The present study examined the possible adverse effects of intervention by the juvenile justice system through the analysis of longitudinal data, which are particularly suited to the investigation of long-term effects. In addition to examining the mere effect of such intervention, we also tested whether more intense and restrictive interventions, such as com- pulsory residential treatment, had worse effects than less intense and restrictive interventions, such as supervision by a probation officer or community reparatory work. Finally, we examined which vari- ables might predict intervention by the juvenile justice system. These variables refer to personal character- istics (i.e., verbal ability, impulsivity-hyperactivity, early delinquency), familial factors (i.e., family struc- ture, family income, parental supervision), and social variables (i.e., peer deviancy) that have been shown individually to predict intervention by the justice system in past studies (Loeber & Farrington, 1998; Moffitt, Lynam, & Silva, 1994; Soussignan et al., 1992; Wells & Rankin, 1991). Together, these vari- ables cover the three domains of functioning that have been hypothesized to be the most proximally impor- tant factors in adolescent development: self, family, and peers (Bronfenbrenner, 1995). According to both the labeling and the peer contagion perspectives, it was expected that these factors would independently predict intervention by the juvenile justice system and that the more restrictive and intense types of inter- vention would result in more iatrogenic effects than less restrictive-intense types of interventions. The same variables were used as control variables while examining the link between juvenile judicial inter- vention and crime in adulthood to ensure that the links between intervention by the justice system and adult criminality were not spurious. This study therefore enabled us to investigate the possible iatrogenic effect of the juvenile justice system, to shed light on some of its mechanisms of action and to examine the possible differential effect of different types of intervention. It did not, however, enable us directly to test the labeling or peer conta- gion theories, which therefore remain as possible explanations of the results obtained. The study also examined whether socio-familial and peer factors, in addition to personal characteristics, predicted intervention by the juvenile justice system, and whether they differentially predicted the specific type of intervention. This research assessed the effects of the different types of intervention undertaken from 1990 to 1995, the period in which the youths involved in this study were aged between 12 and 17 years, and therefore came under the jurisdiction of the juvenile courts. The results obtained are not therefore applicable to types of intervention adopted subsequently, such as Inten- sive Probation or Multisystemic Therapy (Henggeler, Melton, Brondino, Scherer, & Hanley, 1997). Method Sample The sample initially consisted of 1,037 boys who had attended kindergarten classes in 1984, in disadvan- taged areas of Montreal, Canada. To obtain a high base rate of boys at risk for delinquent behavior, the 53 schools with the lowest socio-economic indexes were chosen. To control for cultural effects, the boys were included in the study only if both of their biological parents were born in Canada and their mother tongue was French. After the first evaluation in kindergarten, annual evaluations were made, starting at age 10. These evaluations were made by the parents, teachers, classmates, and the children themselves. Self-reported delinquency was also assessed for the first time at age 10, and was subsequently assessed every year up to the age of 17. Official data on delinquency were taken from the archives of the juvenile court and the adult court, and the presence of judicial records from the age of 18 (age of legal majority) up to 25 years was registered. Active written consent was obtained from parents and juveniles who had reached the age of majority (age 18 years). Verbal assent was obtained from minors. All instruments and procedures were approved by the University of Montreal Ethics Board. Although the offi- cial data were available for all participants, analyses included only subjects with data available from 10 to 17 years of age (n = 779). Participants who were not 992 Uberto Gatti, Richard E. Tremblay, and Frank Vitaro � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. included in the analyses because of missing data (n = 381) tended to have a greater number of juvenile judicial records (18.9% versus 14.5% among the sub- jects in the sample used) and of adult judicial records (20.7% versus 17.6% among the subjects in the sample used), but these differences were not significant (p > .05). Instruments Dependent variable. Adult official crime. A dichotomic variable regarding the presence of a judicial record as an adult, before the age of 25, was used to index adult official crime. Criminal offences covered five types of crimes (prevalence for each category is shown in parentheses): crimes against persons (e.g., homicide) (17.9%); property crimes (e.g., arson) (31.2%); other Criminal Code offences (e.g., prostitution) (25.5%); motor vehicle-related offences (e.g., impaired driving) (8.8%); and drug-related offences (e.g., possession) (16.4%). Criminal records of this kind were registered for 17.6% of the participants in the sample. Independent variable. Intervention of the Juvenile Court on the basis of the Young Offenders Act. This intervention is possible when a crime is committed by a minor between the ages of 12 and 17 years; in practice, however, in the sample used there were no cases of 12-year-olds who had undergone judicial intervention. Overall, according to the judicial records of the Juvenile Court, 14.5% of youths in the sample underwent intervention based on the Young Offenders Act. In practice, the intervention consisted of placement in institutions for delinquent youths (26%), a supervisory intervention (32%), or a non-supervisory intervention (26%). Supervisory interventions included an open file in the justice system with probation and regular meet- ings with a social worker or law officer. Non-supervisory interventions included community compensatory or reparatory work and no file in the justice system. Dur- ing the period considered, some boys were subjected to more than one type of intervention; we considered the strictest adopted for each participant. In fact, of the 29 youths subjected to a placement intervention, some 26 had also been subjected to a supervisory intervention; similarly, of the 36 youths on whom the strictest measure imposed was supervisory, a non-supervisory intervention had also been imposed on 34. Predictors and control variables Self-reported general delinquency. Data were col- lected through questionnaires. In the spring of every year between the ages of 10 and 17 years, the boys were asked whether, in the 12 months prior to the interview, they had ever indulged in any of the behaviors listed in the questionnaire. General delinquency comprised 16 items that covered four dimensions: violence (e.g., ‘beat up someone who hadn’t done anything to you’), theft (e.g., ‘broken into some place to steal something’), vandalism (‘set fire to a store, or other place, on pur- pose’), drug dealing (e.g., ‘sold drugs’). Cronbach’s alphas for the general delinquency scale ranged from .76 to .89. The items making up the index of General Delinquency were scored as: 0) never, 1) once or twice, 2) sometimes, and 3) often; the sum of the scores on the various items was calculated. The means of general delinquency between the ages of 10 and 12 years and between 13 and 17 years were considered separately. Family income. Parents reported on the family income when the boys were 10, 11, and 12 years of age. Given the high stability of this measure over the years, an average score was computed to represent the average family income during early adolescence. Broken home. Defined as a situation in which the minor, at the age of 12, did not live with both bio- logical parents; this condition was recorded in 33.1% of cases. Verbal ability. Verbal ability was assessed at age 13 by means of the Sentence Completion Test (Lorge & Thorndike, 1950) as a proxy for verbal IQ. Verbal abil- ity, as verbal IQ, is generally relatively stable from kindergarten to adolescence (Sattler, 2001). As such, the age-13 assessment should give an estimate of the relative ranking of the boys’ cognitive performance during the study period. The validity of this measure as a proxy for verbal IQ test is supported by a correlation of .67 between the age-13 Sentence Completion Test and the vocabulary and block design subtest of the WISC-R administered to a subsample of 80 boys when they were 10 years old. Impulsivity-hyperactivity. Impulsivity-hyperactivity was assessed through the use of teacher and mother ratings when the participants were 12 and 13 years old. The two informants independently rated the boys on the basis of seven items from the Social Behavior Ques- tionnaire (Tremblay et al., 1991). Examples of items were: Restless, Jumps from one activity to another without finishing, Acts without reasoning. Each item was rated on a four-point scale from very infrequent (0) to very frequent (3). Because of the moderate correla- tions over the years and among informants (> .4), we created a single composite score by first averaging the scores across ages 12 and 13 for each informant and then averaging the scores across informants (Cron- bach’s alpha for the resulting overall score = .78). Deviant peers. When the participants were 10, 11 and 12 years old, the Pupil Evaluation Inventory (PEI) (Pekarik, Prinz, Liebert, Weintraub, & Neale, 1976) was used to gather peer assessments. The PEI contains 34 short behavior descriptions grouped into three scales: aggressiveness-disturbance (20 items), social with- drawal (9 items), and likability (5 items). Participants’ classmates (boys and girls) named up to four boys in the class who best fit each behavior descriptor. A code number was assigned to each boy in the class and these were presented in a roster format to the children. Target boys also named their best friend. The PEI aggressiveness-disturbance scale (e.g., ‘starts fights’, ‘disturbs others’) was then used to assess the best friend’s deviancy (alphas at age 10 = .92; at age 11 = .97; at age 12 = .96). Best friends’ deviancy scores were averaged over the three years. Iatrogenic effect of juvenile justice 993 � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. Parental supervision. At ages 11 and 12, boys and mothers reported on parental supervision (2 items: ‘Do your parents know where you are when you go out?’ and ‘Do your parents know who you hang out with?’). Each item could be rated 0, 1, 2, or 3, with higher scores indicating more supervision. Because the correlation coefficients were moderately stable over the years and across informants (> .30), we created a composite score by first averaging the scores over the two years for each informant and then averaging the scores across infor- mants (Cronbach’s alpha for the overall composite score = .67). Statistical analysis First, we examined the bivariate correlations among all variables. Subsequently, logistic regression was used to evaluate those factors which made intervention by the juvenile justice system more probable. This analysis was complemented by multivariate and univariate analyses of variance designed to compare the three types of judicial intervention, with respect to the childhood variables. The final analysis used hierarchi- cal logistic regression to assess the role of judicial intervention for minors on crime in adulthood, while controlling a series of possible confounders. At the first step, we tested the contribution of the confounders (i.e., socio-familial, peer, and personality dispositions). At the second step, we included the main predictor (i.e., intervention by the justice system) to assess its unique and additive contribution or, alternatively, its mediat- ing effect with respect to the socio-familial, peer, and personality factors. Finally, at the third step, we in- cluded age 13–17 delinquency to ensure that the effect of the intervention of the justice system was not simply a marker of concurrent delinquent behavior. Variables were centered in all the regression analyses to eliminate any collinearity problems (although multicollinearity was not a problem per se). Results The risk of being subjected to a judicial intervention as a minor Table 1 reports the correlation coefficients among all the variables. As can be seen, intervention by the juvenile justice system, self-reported juvenile delinquency (both in childhood and adolescence), impulsivity-hyperactivity and deviant peers are positively correlated with adult crime, while verbal ability, parental supervision and family income are negatively correlated. Similar correlations can be observed between the individual and familial vari- ables on the one hand, and the intervention of the Juvenile Justice System, child delinquency and adolescent delinquency, on the other. Hence, these variables qualify as potential predictors of interven- tion by the justice system and as control variables when examining the links between the intervention by the justice system and adult criminality. Table 2 reports the coefficients of the logistic regression that evaluates the probability of inter- vention by the juvenile justice system. As can be seen, for the same degree of general self-reported delinquency between 10 and 12 years, impulsivity- hyperactivity, frequenting deviant peers, low paren- tal supervision and low family income made judicial intervention more likely. Interestingly, but unex- pectedly, the same two variables (i.e., age 10–12 delinquency and age 11–12 impulsivity-hyperactiv- ity) predicted each type of judicial intervention equally (odds ratios for age 10–12 delin- quency = 1.37, 1.59, and 1.60 for non-supervisory intervention, supervisory intervention and placement respectively; odds ratios for impulsivity- hyperactivity = 1.69, 1.74 and 1.93 for non-super- visory intervention, supervisory, intervention and placement, respectively). Although a few differences emerged at first sight, a multivariate analysis con- firmed that there were no significant differences among the boys exposed to each of the three types of Table 1 Correlations among the variables (N = 779) 1) A.ju.re. 2) Ju.ju.i. 3) C.s-r.d. 4) A,s-r.d. 5) v.a. 6) Imp. 7) De.pe. 8) Br.ho. 9) Pa.su. Mean S.D. 1) Adult judicial record 1.000 .18 .38 2) Juvenile Justice Intervention .451*** 1.000 .15 .35 3) Self-rep. delinquency 10–12 yrs .227*** .259*** 1.000 2.20 2.68 4) Self-rep. delinquency 13–17 yrs .284*** .379*** .491*** 1.000 2.95 3.81 5) Verbal ability ).094** ).104** ).108** ).030 1.000 9.15 2.03 6) Impulsiveness-hyperactivity .258*** .279*** .233*** .220*** ).200*** 1.000 3.95 2.81 7) Deviant peer .117** .144*** .139*** .198*** ).083* .119** 1.000 ).06 .70 8) Family not intact at age 12 .076* .097** .154*** .097** ).015 .090* .057 1.000 .33 .47 9) Parental supervision ).198** ).200*** ).312*** ).343*** .004 ).253*** ).160*** ).136*** 1.000 6.75 1.00 10) Family income ).124** ).148*** ).177*** ).102** .157*** ).110** .035 ).483*** .084* 6.59 3.24 *p £ .05; **p £ .01; ***p £ .001 (2-tailed). Table 2 Predictors of the intervention of the juvenile court. Logistic regression coefficients (N = 779) B Std. Err. Exp (B) Child self-reported delinquency (10–12 years) .407*** .112 1.502 Verbal ability ).097 .112 .908 Impulsivity-hyperactivity .565*** .113 1.759 Deviant peers .230* .109 1.259 Family not intact at age 12 ).019 .266 .981 Parental supervision ).245* .112 .783 Family income ).309* .139 .734 * p £ .05; *** p £ .001. 994 Uberto Gatti, Richard E. Tremblay, and Frank Vitaro � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. justice system intervention with respect to any of the above variables (multivariate F(7, 14) < 1, p > .50; univariate Fs(2, 110) < 1.5, p > .25). Means and standard deviations are illustrated in Table 3. The long-term effect of juvenile justice intervention The first step of the regression analysis presented in Table 4 reveals that age 10–12 delinquency, impul- sivity-hyperactivity, and low parental supervision during early adolescence uniquely and additively predicted criminal records in adulthood. Adding the intervention of the justice system at the second step slightly reduced the predictive power of the above predictors, while making an important additive contribution of its own and almost doubling the percentage of explained variance (from .166 to .297). The predictive power of intervention by the justice system remained virtually unchanged after inserting the age 13–17 delinquency score into the analysis (Model 2 in Table 4). For boys who had been through the juvenile justice system, the odds of adult judicial intervention were increased by a factor of 6.98, once the effect of the control variables have been taken into account. With regard to the effect of the specific type of judicial intervention, it was found that the more restrictive and more intense the justice system intervention was, the greater was its negative impact. Indeed, Table 5 shows that, while each type of intervention is significantly associated with adult delinquency, placement in an institution ex- erts by far the strongest criminogenic effect; the weakest effect is exerted by non-supervisory inter- ventions, while supervisory interventions occupy an intermediate position. In reality, however, as reported above, almost all of the youths subjected to a placement measure had also undergone a supervisory measure, and almost all of those subjected to a supervisory measure had also undergone a non-supervisory measure. The nega- tive effect recorded is therefore generally due not to a single measure, but rather to a judicial course Table 3 Means and standard deviations of predictor variables for the three types of judicial intervention Predictor variable Type of intervention Non-supervi- sory (n = 48) Supervisory (n = 36) Placement (n = 29) Mean (SD) Mean (SD) Mean (SD) Delinquency 10–12 years .474 (1.309) .674 (1.282) .825 (1.614) Verbal ability ).074 (.991) ).443 (1.113) ).312 (1.074) Impulsivity- hyperactivity .591 (1.075) .656 (1.019) .848 (1.109) Peers’ disruptiveness .302 (1.133) .289 (1.162) .505 (1.114) Parental supervision ).478 (.920) ).333 (1.345) ).686 (1.316) Family income ).310 (.939) ).354 (.802) ).444 (.975) Note: All variables are centered within the whole sample of 779 participants for comparative purposes. Table 4 Effect of the intervention of the juvenile justice court on adult crime. Logistic regression coefficients (N = 779) B Model 1 Std. Err. Exp (B) B Model 2 Std. Err. Exp (B) B Model 3 Std. Err. Exp (B) Self-reported delinquency 10–12 years .278** .090 1.320 .178� .100 1.195 .107 .109 1.113 Verbal ability ).080 .098 .923 ).060 .106 .941 ).072 107 .930 Impulsivity-hyperactivity .464** .100 1.591 .331** .108 1.392 ).332** .108 1.393 Deviant peer .138 .098 1.149 .085 .106 1.089 .067 .106 1.069 Family not intact at age 12 ).071 .243 .931 ).094 .263 .911 ).088 .264 .916 Parental supervision ).254* .099 .775 ).206* .107 .813 ).179 .109 .836 Family income ).227 .124 .797 ).152 .133 .859 ).150 .134 .861 Self-reported delinquency 13–17 years – – – – – – .186 .111 1.204 Juvenile Justice Intervention – – – 2.057*** .244 7.825 1.943*** .252 6.979 )2 Log likelihood 642.008 570.408 567.609 Nagelkerke R2 .166 .297 .301 �p 6.10; *p 6 .05; **p 6 .01; ***p 6 .001; – not included in the model. Table 5 Effect of different juvenile justice interventions on adult crime. Logistic regression coefficients (N = 779) B Std. Err. Exp (B) Self-reported delinquency 10–12 years .122 .116 1.130 Verbal ability ).026 .113 .974 Impulsivity-hyperactivity .331* .113 1.392 Peers’ disruptiveness .064 .111 1.066 Family not intact at age 12 ).089 .274 .915 Parental supervision ).207 .116 .813 Family income ).152 .138 .859 Self-reported delinquency 13–17 years .118 .119 1.125 Juvenile Justice Intervention (Wald = 58.109, p < .001) without supervision .835* .361 2.304 with supervision 2.645*** .416 14.078 with placement 3.632*** .645 37.790 *p £ .05; ***p £ .001. Iatrogenic effect of juvenile justice 995 � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. involving more than one intervention. The stricter the measure with which this judicial course ends, the greater the criminogenic effect. Discussion The current results indicate that the Juvenile Justice System targets those youths who are weakest from a personal and social point of view. However, the choice of the specific type of intervention for the targeted youth does not seem to depend on the youth’s personal or socio-familial characteristics, although it may depend on the specific crime com- mitted by the youth (not reported here). Contact with the justice system therefore seems to be marked by selectivity and discrimination, in that, for the same degree of self-reported crime, the system targets those youths who are poorest, most disinhibited (i.e., impulsive-hyperactive) and least supervised by their parents. Within the justice system, however, this selective and discriminatory nature is not mani- fested in the choice of the measures adopted, which is not connected with any of the characteristics of the youths examined. Although the choice of measures is not discriminatory, it does appear to be somewhat inconsistent, in that it seems to be unrelated to the seriousness of the self-reported delinquency. This finding is in line with the results reported by Doob and Beaulieu (1992). These authors presented some cases of minors who had committed crimes to 43 Canadian judges and asked them to state which sentences or interventions they would have imposed; the results revealed a widely disparate treatment of similar young offenders convicted of the identical offence. In line with many, but not all, past studies, a youth’s involvement with the juvenile justice system was seen to have an overall negative impact on his criminal career. While mere intervention by the juvenile justice system seems to have a negative effect, its impact increases as the type of intervention imposed becomes more intense and constrictive. This last finding takes on even greater importance in the light of the fact that in many countries consid- erable financial resources are allocated to programs and institutions that group deviant youths together, confine them to facilities that are separated from the rest of society and engender the greatest risk of impacting negatively on the development of the young people concerned. This is particularly true in light of the fact that there does not seem to be any link between the personal or socio-familial risk factor and the type of intervention imposed by the justice system. This last finding supports the notion that the differential criminogenic effect of the different types of intervention (or rather, given that most youths undergo more than one intervention, of the differ- ent judicial courses) does not depend on a partic- ular selection with regard to the choice of the intervention adopted, but rather on a differential negative effect of the judicial courses in which the youths are involved. Our data are compatible with both the labeling and the deviant peer contagion perspectives, even though no mediating mechanisms that would be compatible with these perspectives were assessed. In any case, labeling theory should be combined with other approaches; this was suggested by Lemert (1972), who found that the theory of social reaction was able to explain secondary deviance, while primary deviance had to be explained by other theories. Indeed, in recent years, the need has arisen to work out an integrated multidisci- plinary criminological theory able to combine ele- ments from different approaches (Messner, Krohn, & Liska, 1989). In this perspective, the present results highlight the importance of taking into account the impact of the intervention of juvenile justice, along with many other factors, in attempting to understand the evolution of delin- quency among adolescents and its transition to adult criminality. Above all, however, the data reveal not only the inefficacy of the juvenile justice system but also its iatrogenic effects. The present study combines a number of strengths: a large long-term longitudinal study; a relatively high-risk population of males; a culturally homogenous population; evaluations on both official and self-reported delinquency during childhood and adolescence; and inclusion of a cog- nitive assessment. It also has some limitations. For instance, the fact that the sample was made up entirely of minors attending schools in poor districts means that these conclusions cannot be extended to the whole population; as the study involved only boys, its findings cannot be applied to girls; more- over, as the results concern interventions adopted between 1990 and 1995, they cannot be applied to interventions adopted subsequently. Finally, these analyses do not enable us to understand the mech- anisms through which judicial reaction exerts its negative impact. However, the present findings show that inter- vention by the justice system during adolescence has an overall iatrogenic effect on youth. Juvenile justice systems were created in the second half of the 19th century to prevent adolescents from being contami- nated by adult criminals and from being led astray. The available research on their effectiveness indi- cates that these aims are far from being achieved. Indeed, as confirmed by present and past research, intervention by the juvenile court increases the likelihood of adult criminality (Huizinga, Schumann, Ehret, & Elliott, 2001; McCord, Widom, & Crowell, 2001). We suggest that there are two solutions to this problem. The first is to implement early prevention, so as to reduce the number of minors who become involved with the justice system. The second is to 996 Uberto Gatti, Richard E. Tremblay, and Frank Vitaro � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. reduce, as far as possible, the stigma attached to the justice system and to minimize the concentration of problem youths, thereby reducing the risk for both labeling and peer contagion. Correspondence to Uberto Gatti, DIMEL Università di Genova,Via De Toni 12, 16132 Genova, Italia; Email: ugatti@unige.it Key points • We used a 20-year longitudinal study to assess the impact of Juvenile Court decisions on adult offending. The results reveal an iatrogenic effect of the Juvenile Court; youths who are poor, impulsive, poorly supervised and exposed to deviant friends are more likely, for the same degree of antisocial behavior, to undergo intervention by the Juvenile Court, and this intervention greatly increases the likelihood of involvement with the penal system in adulthood. • The various types of intervention exert a differential criminogenic effect, placement having the most negative impact. • The results suggest that we should reduce the judicial stigma, minimize the concentration of problem youths and implement early prevention, so as to reduce the number of minors involved with the justice system. References Becker, H. (1963). Outsiders. New York: New York Free Press. Bernburg, J.G., & Krohn, M.D. (2003). Labeling, life chances, and adult crime: The direct and indirect effects of official intervention in adolescence on crime in early adulthood. Criminology, 41, 1287–1318. Bernburg, J.G., Krohn, M.D., & Rivera, C.J. (2006). Official labeling, criminal embeddedness, and sub- sequent delinquency: A longitudinal test of labeling theory. Journal of Research in Crime and Delinquency, 43, 67–88. Bronfenbrenner, U. (1995). Developmental ecology through space and time: A future perspective. In P. Moen, G.H.J. Elden, & K. Luschen (Eds.), Examining lives context: Perspectives on the ecology and human development (pp. 619–647). American Psychological Association: Washington DC. Dishion, T.J., McCord, J., & Poulin, F. (1999). Iatro- genic effects in early adolescent interventions that aggregate peers. American Psychologist, 54, 755–764. Doob, A.N., & Beaulieu, L.A. (1992). Variation in the exercise of judicial discretion with young offenders. Canadian Journal of Criminology, 34, 35–50. Dodge, K.A., Dishion, T.J., & Lansford, J.E. (2006). Deviant peer influences in intervention and public policy for youth. Social Policy Report, 20, 1–20. Henggeler, S.W., Melton, G.B., Brondino, M.J., Scherer, D.G., & Hanley, J.H. (1997). Multisystemic therapy with violent and chronic juvenile offenders and their families: The role of treatment fidelity in successful dissemination. Journal of Consulting and Clinical Psychology, 65, 821–833. Huizinga, D., Schumann, K., Ehret, B., & Elliott, A. (2001). Effect of juvenile justice system processing on subsequent delinquent and criminal behavior: A cross- national study. Rockville, MD: National Institute of Justice/NCJRS. Klein, M.W. (1986). Labeling theory and delinquency policy. An experimental test. Criminal Justice and Behavior, 13, 47–79. Lemert, E. (1951). Social pathology. New York: McGraw- Hill. Lemert, E.M. (1972). Human deviance, social problems and social control. Englewood Cliffs, NJ: Prentice Hall. Lipsey, M. (2006). The effects of community-based group treatment for delinquency: A meta-analytic search for cross-study generalizations. In K.A. Dodge, T.J. Dishion, & J.E. Lansford (Eds.), Deviant peer influences in programs for youth (pp. 162–184). New York: Guilford Press. Loeber, R., & Farrington, D.P. (1998). Serious and violent juvenile offenders: Risk factors and successful interventions. Office of Juvenile Justice and Delin- quency Prevention, Washington, DC. Lorge, I., & Thorndike, R.A. (1950). The Lorge-Thorndike Intelligence Test. New York: Houghton Mifflin. McCord, J. (1978). A thirty-year follow-up of treatment effects. American Psychologist, 33, 284–289. McCord, J., Widom, C.S., & Crowell, N.A. (Eds.). (2001). Juvenile crime, juvenile justice. Panel on Juvenile Crime: Prevention, treatment, and control. Washing- ton, DC: National Academy Press. Messner, S.F., Krohn, M.D., & Liska, A.E. (1989). Theoretical integration in the study of crime: Problems and prospects. New York: SUNY Albany Press. Moffitt, T.E., Lynam, D., & Silva, P.A. (1994). Neuro- psychological tests predict persistent male delin- quency, Criminology, 32, 101–124. Osgood, D.W., & Briddell, L. (2006). Peer effects in juvenile justice. In K.A. Dodge, T.J. Dishion, & J.E. Lansford (Eds.), Deviant peer influences in programs for youth (pp. 141–161). New York: Guilford Press. Pekarik, E.G., Prinz, R.J., Liebert, D.E., Weintraub, S., & Neale, J.N. (1976). The Pupil Evaluation Inventory: A sociometric technique for assessing children’s social behavior. Journal of Abnormal Child Psychol- ogy, 4, 83–97. Sampson, R.J., & Laub, J.H. (1997). A life-course theory of cumulative disadvantage and the stability of delinquency. In T.P. Thornberry (Ed.), Developmen- tal theories of crime and delinquency: Advances in criminological theory (vol. 7, pp. 133–161). New Brunswick, NJ: Transaction Publishers. Sattler, J.M. (2001). Assessment of children: Cognitive applications (4th edn). La Mesa, CA: Jerome M. Sattler. Iatrogenic effect of juvenile justice 997 � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. Soussignan, R., Tremblay, R.E., Schaal, B., Laurent, D., Larivée, S., Gagnon, C., LeBlanc, M., & Charle- bois, P. (1992). Behavioural and cognitive character- istics of conduct disordered-hyperactive boys from age 6 to 11: A multiple informant perspective. Journal of Child Psychology and Psychiatry, 33, 1333–1346. Tannenbaum, F. (1938). Crime and the community. New York: Columbia University Press. Tremblay, R.E., Loeber, R., Gagnon, C., Charlebois, P., Larivée, S., & LeBlanc, M. (1991). Disruptive boys with stable and unstable high fighting behavior patterns during junior elementary school. Journal of Abnormal Child Psychology, 19, 285–300. Vitaro, F., Tremblay, R.E., & Bukowski, W. (2001). Friends, friendship, and conduct disorders. In J. Hill, & B. Maughan (Eds.), Conduct disorders in childhood and adolescence (pp. 346–378). Cambridge: Cam- bridge University Press. Warr, M. (2002). Companions in crime: The social aspects of criminal conduct. New York: Cambridge University Press. Wells, L.E., & Rankin, J.H. (1991). Families and delin- quency: A meta-analysis of the impact of broken homes. Social Problems, 38, 71–93. Manuscript accepted 4 November 2008 998 Uberto Gatti, Richard E. Tremblay, and Frank Vitaro � 2009 The Authors Journal compilation � 2009 Association for Child and Adolescent Mental Health. 
work_mkqcb22drbc6ddu4n6upiou3sa	----	Transitional justice and authoritarian backsliding Vol.:(0123456789) Constitutional Political Economy https://doi.org/10.1007/s10602-020-09315-5 1 3 O R I G I N A L PA P E R Transitional justice and authoritarian backsliding Monika Nalepa1 © The Author(s) 2020 Abstract Can a lack of transitional justice contribute to democratic backsliding? This paper uses the case of Poland to argue that selective enforcement of transitional justice can be linked to democratic erosion. In doing so, the paper adjudicates between two theories of democratic backsliding. The first, advanced by Milan Svolik, argues that elite polarization drives erosion: when political candidates are ideologically far apart, citizens who strongly prefer one over the other may turn a blind eye to anti- democratic transgressions by their preferred candidate to prevent the competing can- didate from winning. The second theory, presented by Nalepa, Vanberg, and Ciopris (NVC), describes an equilibrium where voters are uncertain whether the candidate they are dealing with is a closet autocrat or an ideological incumbent, but reelect him into office regardless. This theory posits that a closet autocrat is reelected into office because his first period actions are identical to those of an ideological incum- bent. I argue that judiciary reforms in Poland reflect exactly the kind of incumbent actions that are consistent both with the actions of an ideological incumbent and with the actions of a closet autocrat. Using survey data from Poland, I find evidence of elite polarization, offering support for the first theory, but also find ample evi- dence of polarization in the electorate and of a belief structure supportive of the equilibrium from NVC. I present Hungary’s experience with transitional justice and the rule of law as a shadow case to illustrate similar dynamics to those taking place in Poland. Keywords Transitional justice · Judiciary independence JEL Classification K1 · K4 · K18 Electronic supplementary material The online version of this article (https ://doi.org/10.1007/s1060 2-020-09315 -5) contains supplementary material, which is available to authorized users. * Monika Nalepa mnalepa@uchicago.edu 1 The University of Chicago, Pick Hall 324A, 5838 S University Ave, Chicago, IL 60615, USA http://orcid.org/0000-0003-2344-3405 http://crossmark.crossref.org/dialog/?doi=10.1007/s10602-020-09315-5&domain=pdf https://doi.org/10.1007/s10602-020-09315-5 https://doi.org/10.1007/s10602-020-09315-5 M. Nalepa 1 3 1 Introduction Can a lack of transitional justice contribute to democratic backsliding? Transi- tional justice (TJ) comprises the set of procedures designed by a country recov- ering from conflict or authoritarian rule to come to terms with its past (Kamin- ski et  al. 2006). In addition to criminal trials of repressive agents of the former regime, TJ includes personnel TJ mechanisms, which include lustration and purges (Bates et  al. 2020). Lustration vets candidates for public office for ties to the former authoritarian secret police, revealing previously-secret information. In contrast, purges remove from public office known collaborators of the ancien régime. Authors of the two classical volumes that established the field of compara- tive democratization and regime transitions, The Third Wave of Democratization and Tentative Conclusions on Transitions from Authoritarian Rule, have been reluctant to advise democratizing states to engage in TJ. According to Samuel Huntington, “amnesty (…) is necessary to establish a new democracy on a solid basis;” further, “even if a moral and legal argument could be made for prosecu- tion, this would fall before the normative imperative of creating a stable democ- racy” (Huntington 1993, 214). In the 1980’s, Philippe Schmitter and Guillermo O’Donnell warned “that the more brutal, inhumane, and extensive were the repressive actions, the more their actual perpetrators—the institutions involved and those persons who collaborated with them or supported them—feel threat- ened and will tend to form a bloc opposing any transition. Where they cannot prevent the transition, they will strive to obtain iron clad guarantees that under no circumstance will the ‘past be unearthed’; failing to obtain that, they will remain a serious threat to the nascent democracy” (O’Donnell and Schmitter 2013, 31–32). In an article published 2 decades later, Jack Snyder reiterated the risks of engaging in TJ: “the prosecution of perpetrators of atrocities according to univer- sal standards risks causing more atrocities than it would prevent, because it pays insufficient attention to political realities” (Snyder and Vinjamuri 2004, 5). What all of these authors seem to implicitly assume is that the costs of “doing nothing” are negligible. It is this assumption that this article calls into question. Poland and Hungary, the two post-communist countries that were slow to imple- ment TJ, or adopted it half-heartedly, are also the ones leading the pack in back- sliding into autocracy, though for entirely different reasons than those posited by Huntington, O’Donnell and Schmitter, and Snyder. I argue in this paper that a refusal to engage in TJ can endanger democratization and be used as a pretext for incumbent-led authoritarian backsliding. Specifically, using the example of Poland (and the shadow case of Hungary), I show that reluctance by the liberal governments in office since 1993 to engage in personnel TJ of the judiciary has provided their populist successors (PiS in Poland and Fidesz in Hungary) with an excuse to undermine judiciary independence and to use a broadly defined decom- munization project to tighten their grip on power. My explanation relies on a theory of authoritarian backsliding put forward in a paper by Nalepa, Vanberg, and Ciopris (NVC), who explain backsliding even 1 3 Transitional justice and authoritarian backsliding in an environment where the electorate has a strong aversion to authoritarian politics and would prefer, all things considered, that the polity remain demo- cratic. This model contrasts with Milan Svolik’s authoritarian backsliding theory, according to which, given a sufficiently high degree of elite polarization, voters prefer to retain in office an incumbent who undermines democracy as long as he is ideologically closer to them than a committed democrat would be. The NVC argument hinges on voters’ uncertainty about the type of incumbent they are fac- ing. Because in the pre-electoral period, voters observe actions that are consistent both with the behavior of an ideological incumbent and a closet autocrat, they may elect the proverbial “wolf,” just “masquerading in sheep’s clothing,” for a second period in office. In this article, I show that the actions of Polish incumbents fit the NVC model perfectly: both their moves to clear the judiciary of vestiges of the communist past and to staff key judiciary institutions with their supporters and to remove constitu- tional checks on their power are consistent with the model. Moreover, I argue that voters in Poland support PiS not because they have low commitments to the rule of law and democracy but because they genuinely believe that the incumbents’ inten- tions to reform the judiciary are sincere. Analysis of survey evidence from Poland illustrates that a high commitment to the rule of law is compatible with approval for PiS, particularly when combined with citizens’ beliefs that judicial reform is part of the delayed decommunization project and of Poland’s coming to terms with its past. This article is organized as follows. The next section, drawing largely on litera- ture in legal theory, explains the tension between the rule of law and TJ and shows how this tension played out in Poland to make it a possible candidate for authori- tarian backsliding. Section  3 explains how the literature on the political economy of authoritarian backsliding might explain Poland’s democratic erosion. The focus here is on two categories of models: those in which citizens know their incumbent is exhibiting authoritarian tendencies and those in which they do not. The empirical section draws on original survey data from Poland to show that Poland’s backsliding trajectory is compatible with the NVC theory. The final sections present a shadow case from Hungary and conclude. 2 Lustration laggards, or operating within the constraints of rule of law The principle of nulla poene sine lege (no punishment without a crime) questions whether those who committed human rights violations in the past in accordance with the law at the time ought to be held criminally responsible (Panebianco 2015; Graver 2016). It is largely on the grounds of violations of this principle that courts across post-communist Europe struck down TJ legislation passed by their legisla- tures in the 1990s (Poganyi 1997). This was notoriously the case in Poland and Hungary, two examples of lag- gards in lustration and purges (Nalepa 2010). Moreover, among sectors potentially affected by personnel TJ, the judiciary in both these countries stands out as almost entirely lustration-free. This is corroborated by newly collected data from the Global M. Nalepa 1 3 Transitional Justice Dataset, presented in the figure below as a compilation of per- sonnel TJ events in 6 post-communist countries since their transition to democracy circa 1990. The graph shows the cumulative net personnel TJ events (lustrations and purges) pertaining to the judiciary from the date the country transitioned to democracy until 2013. “Net events” denotes positive TJ events net of negative events. Cumulative net events in year t are the sum of net events from the time of the transition until 2016 (last 3 years are omitted as there are no additional events between 2013 and 2016). Following Bates et al. (2020), I refer to a positive TJ event as the submission of a TJ proposal to the floor of the legislature, the passage of such legislation, the upholding of such legislation as constitutional by a supreme court, or the overturning of a pres- idential veto against such legislation. In the case of truth commissions, the publica- tion of the commission’s report(s), and the extension of the commission’s mandate are also considered progressive TJ events. A negative event is the voting down of a bill, a presidential veto issued against a bill, a failure to overturn such a veto by the legislature, or the constitutional court striking a bill down. Bates, Cinar, and Nalepa use thus-defined events as building blocks for more refined measures. Because judi- ciary lustrations and purges are already a fairly disaggregated event, there are too few data points to use any of these more refined measures. Hence, in this paper I have elected to simply present all the data. The advantage of using this newly cre- ated dataset as opposed to previous databases, such as the Transitional Justice Research Collaborative, is its granular nature and the fact that it codes every event pertaining to advancing the transitional justice process forward (positive events) or backward (negative events). As a result, it allows me to pick up on threats of transi- tional justice implementation long before a mechanism is actually implemented. It also allows me to avoid long periods with no events, simply because there was no implementation. A final advantage of this dataset is that it extends to 2016 allowing me to capture a much longer time trend that the Transitional Justice Research Col- laborative would (Fig. 1). We see from the figure that Poland is among the countries with the lowest num- ber of cumulative net events: only 5. Moreover, in contrast to Bulgaria and Romania, the other country cumulatively netting 5 events, it arrived at this number through a 0 2 4 6 8 10 12 14 16 18 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Bulgaria Romania East Germany Hungary Czechoslovakia Poland Fig. 1 Net cummulative purge and lustration events of the judiciary in 6 post-communist countries 1 3 Transitional justice and authoritarian backsliding series of positive events (the passage of TJ by the legislature) followed in close suc- cession by negative events (the reversals of these bills by the Constitutional Tribu- nal). Hungary, which has 7 net cumulative events, also has a number of such rever- sals (visibly in 2004). The judiciary was scarcely lustrated before the populist Law and Justice (PiS) party came to power in 2015 because even after the parliament passed lustration bills, the country’s Constitutional Tribunal struck them down, citing the sharp con- flict between these bills and the principle of judicial independence (Nalepa 2010; David 2003; Horne 2009; Magalhaes 1999). The Tribunal’s justification for these decisions was that, as a new democracy, Poland could not reconcile the principles of the rule of law and of non-retroactivity, in particular, with exposing judges for communist collaboration because such collaboration had been required by law under communism.1 Likewise, in Hungary, the Constitutional Court shielded the judiciary and other elites from lustration and also barred the return of property expropriated by the communist party to its rightful owners (Sólyom et al. 2000; Sólyom 2003). While Poland and Hungary’s courts’ formalist interpretation of the law stifled the progression of TJ, the liberal governments that ruled these countries through the 1990s and early 2000s also played a part in letting “bygones stay bygones.” These governments prioritized joining the European Community and NATO over launch- ing full-scale TJ programs. Moreover, for fear of appearing to undermine the rule of law, they especially avoided extending TJ programs to the judiciary.2 This move earned both Poland and Hungary praise from the international legal community. Yet, as this article argues, unsettled scores with the judiciary’s “ghosts of the past” have given the governments who succeeded the liberal cabinets—PiS in Poland and Fidesz in Hungary—a pretext for embarking on a series of judiciary reforms that undermine principles of the rule of law even more. In 2018, crowds of protesters chanting “Constitution, constitution!” interrupted Polish President Duda’s speech during his visit to the Gdansk Shipyard, where the Solidarity trade union was born. Their protest alluded to the fact that Duda was failing at the job of enforcing the Basic Law. Duda remarked: “You are allowed to protest because I respect the constitution, but rest assured that a majority of peo- ple living on the Coast today feel threatened by the fact that there are justices on the Supreme Court who pronounced sentences on members of the opposition dur- ing Martial Law.” Jaroslaw Kaczynski has, on numerous occasions since his party became the dominant force in parliament, used the unfinished decommunization project as a pretext for weakening the judicial branch. Since 2015, PiS has accused the liberal wing of the Solidarity trade union (including Adam Michnik, Tadeusz Mazowiecki, and Jacek Kuron, among others), who had negotiated the transition during the roundtable talks, for striking a deal with the communists that promised 1 See especially decisions K 39/97 and K 3/98 (Available at https ://ipo.trybu nal.gov.pl/ipo/Spraw a?cid=1&dokum ent=274&spraw a=3062. And https ://ipo.trybu nal.gov.pl/ipo/Spraw a?cid=1&dokum ent=290&spraw a=3503). 2 See, for an alternative interpretation of keeping the former authoritarian judiciary intact, Popova (2012). https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=1&dokument=274&sprawa=3062 https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=1&dokument=274&sprawa=3062 https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=1&dokument=290&sprawa=3503 M. Nalepa 1 3 amnesty of past wrongdoings in exchange for power-sharing. The accusations reso- nated with the public. Poland’s initial TJ project was extremely mild (Nalepa 2010). As mentioned above, lustration never reached the judiciary thanks to vetoes from the constitutional court. Unsurprisingly, when Kaczynski started replacing liberal judges on the Constitutional Tribunal (by sending them into early retirement) with PiS-sympathizers, he framed the move using the language of decommunization.3 The next section explains why this framing was critical to the success of authoritar- ian backsliding in Poland. 3 Competing theories of authoritarian backsliding In the last few years, many scholars have tackled the phenomenon of democratic erosion.4 In a 2020 paper, Milan Svolik formalizes a scenario where elite polariza- tion is so high that citizens prefer to elect an autocrat who is ideologically closer to them than a democratic politician who is ideologically further away (Svolik 2020). In Svolik’s model, elite polarization drives voters to knowingly elect an openly auto- cratic incumbent into office because the cost of being ruled by an ideologically dis- tant challenger is too high. Authoritarian backsliding, according to this mechanism, however, is still puzzling when it occurs in countries that have shown deep commit- ments to democratic values; such countries include the new polities of post-commu- nist Europe. Building on Svolik’s model, NVC allow the voters to be uncertain about the iden- tity of the incumbent. They argue that whether citizens reelect an incumbent (who may be a closet autocrat or an ideological conservative) depends on elite polariza- tion, polarization in the electorate (the ideological distance between the representa- tive citizen and the alternative candidate from the opposition), and the probability that the incumbent is in fact a closet authoritarian. The NVC model is developed in two periods and is characterized by two policy dimensions: an ideological dimen- sion and an authoritarian dimension. The ideological dimension encompasses poli- cies that fit onto a liberal-conservative continuum. The authoritarian dimension reflects citizens’ tolerance for authoritarian power grabs. NVC assume that prefer- ence for democracy always dominates the ideological dimension. This last feature situates the NVC model fittingly in the post-communist context, where democratiza- tions a few decades ago revealed strong support for rule of law and a deep aversion to authoritarian power grabs. TJ polices map onto the left–right policy dimension well: preferences for harsh accountability go hand in hand with conservative ideol- ogy, and preferences for mild TJ characterize elites on the left. In the first period, an incumbent politician—who may be an ideological conserva- tive or a closet autocrat—only implements policy on the first, ideological dimension. 4 I use the terms democratic backsliding, authoritarian backsliding, and democratic erosion interchange- ably here. 3 The Polish Constitutional Tribunal is the name for the country’s constitutional court, the body equipped with legislative oversight for compatibility with the Basic Law. 1 3 Transitional justice and authoritarian backsliding This ideological dimension, in turn, limits the range of policies she will be able to implement in the second term, if reelected. If the incumbent is not reelected into office, governing authority is transferred to a liberal challenger who is, with cer- tainty, a democrat. In the second term, the elected politician picks policy on the authoritarian dimension. NVC find that probability of reelection of a closeted-auto- crat politician increases with both elite polarization and polarization in the elector- ate and also decreases with increased beliefs that the incumbent is a closet autocrat. To adjudicate between the Svolik and NVC theories, three features of the Polish case need to be established. First, the actions of Kaczynski and his party, PiS, indeed lend themselves to the ambiguous interpretation suggested by NVC: in other words, they are consistent both with the actions of a closet autocrat and of an ideologically motivated incumbent. Second, in recent years, Poland has exhibited an increase in elite polarization and in polarization in the electorate; third, voters casting their bal- lots for PiS believe that they are reelecting an ideological incumbent rather than a closet autocrat. The remainder of this article is devoted to empirically corroborating the theory summarized above. It will focus on showing that the lack of TJ in Poland, and espe- cially the shielding of the judiciary from decommunization, created circumstances that, in line with the NVC model of backsliding, were ripe for the country’s descent into authoritarianism. To establish the first point, I present a brief analytical narra- tive from Poland; to establish the second, I rely on both historical and recent opinion surveys. 4 An analytic narrative from Poland PiS came to power in 2015 when it succeeded the liberal government of Civic Plat- form (PO). PO had been led for almost two complete terms by Donald Tusk until, in 2014, he became President of the European Council; at this point, he was replaced by Ewa Kopacz. Several factors contributed to PO’s subsequent failure in the parlia- mentary elections of 2015. First, in the midst of the Syrian refugee crisis, Kopacz promised the EU that Poland would accept 12,000 refugees. In a country approach- ing 40 million, this seemed like a “drop in the bucket.” Yet, in the context of terror- ist attacks in Europe, PiS managed to spin the commitment as a threat to national security. In the end, PO was forced to walk back its promise, causing irreparable damage to perceptions of its resolve at home and abroad. A second defeat came with the presidential elections in the summer of 2015, which the incumbent, Bronislaw Komorowski of PO, had taken for granted. Only 5 years earlier, Komorowski had won the Presidency in a landslide against Kaczyn- ski.5 However, in 2015, instead of Kaczynski, PiS put up Andrzej Duda, a young 5 Komorowski ran as an incumbent even though he had never been elected into office. As a result of a tragic plane crash where Lech Kaczynski, President at the time and twin brother of Jaroslaw Kaczynski, perished, Komorowski, who at the time was House Speaker, had become president per the 1997 Consti- tution. M. Nalepa 1 3 conservative from the South of Poland (the PiS stronghold). Duda, a Warsaw out- sider, was able to dissociate himself from the political mainstream and won the pres- idency. Following his victory, the popularity of PO took another turn for the worse.6 While executive power in Poland is wielded by the Prime Minister, who is typically the leader of the party coming out victorious in parliamentary elections, the result was interpreted as evidence of the public’s loss of confidence in PO under Kopacz leadership. The “straw that broke the camel’s back,” however, was the outcome of an eaves- dropping operation carried out in a handful of restaurants neighboring the Sejm, the Polish parliament. Recordings made by serving staff of a series of private conversa- tions revealed top PO politicians discussing sensitive issues pertaining to privatiza- tion, foreign affairs, and even national security. Following the publication of a year’s worth of transcripts from these conversations, the PO’s Ministry of Internal Affairs swiftly shut the operation down. An investigation of the operation revealed no links to any political parties, although notably, none of the embarrassing conversations involved PiS politicians. As a result of the three crises in rapid succession, PO’s sup- port declined substantively. Following 8 years on the opposition benches, PiS emerged victorious in the Octo- ber 2015 parliamentary election. Even though it won only a minority of the vote, it took an absolute majority of seats in the legislature. The success allowed PiS to establish Poland’s first single-party majority cabinet since 1989. It began its rule by undertaking several changes that could be perceived as steering away from demo- cratic norms. A prominent example echoing the scandal of wiretapped PO conversa- tions was a national security bill permitting wiretapping and granting government access to phone records and electronic data. The legislation was promptly sent to the Constitutional Tribunal for evaluation, but the authors of the bill defended it, stating that its aim was to preempt criminal activity. Instead of waiting for the Court to make a decision, PiS started tinkering with the Court. First, President Andrzej Duda refused to swear in three justices who had been elected by a PO-controlled parliament in the previous term to replace judges whose terms were running out. This move was appealed to the Constitutional Tri- bunal itself, which upheld the constitutionality of the election of the three justices. Next, the PiS Cabinet Chief of Staff refused to publish the Constitutional Tribunal’s verdict, hoping to invalidate it. However, after the Supreme Court ruled that the Constitutional Tribunal’s verdicts had full force of the law from the moment they are handed down, regardless of publication, the three justices joined the bench. PiS continued to deny the new judges’ legitimacy and elected three candidates of its own. These judges (referred to as “extras”) also joined the bench. When the Con- stitutional Tribunal’s Chief Justice, Andrzej Rzeplinski, refused to appoint them to sit on panels, PiS decided to take further action against the Court and appointed Julia Przylebska, a PiS loyalist, to replace Justice Rzeplinski. This was a controversial 6 To be clear, Poland is a parliamentary regime with a directly elected president whose role is very sym- bolic. His only opportunity to affect policy is through vetoing legislation. The legislative veto, however, can be overturned with a three-fifths supermajority. 1 3 Transitional justice and authoritarian backsliding choice for at least two reasons. First, Poland’s National Council of the Judiciary had evaluated and rejected Przylebska as lacking qualifications for a post in the Appel- late Court—that is, a lower court than the Constitutional Tribunal. Moreover, she had begun her judicial career in communist Poland, making her exactly the kind of judge PiS had promised to get rid of. In the next step, PiS passed two bills that short- ened the terms of the judges of the Constitutional Tribunal. To allow for better understanding of the succession of judicial reforms that fol- lowed, a brief primer on the Polish court system is in order. The system of courts is complex and made up of four levels: the regional, district, appellate, and Supreme Courts. Lower level courts are surprisingly influential due to a peculiarity of the Pol- ish constitution: Article 178 of the Basic Law allows lower-level courts to engage in interpreting the constitution when the Constitutional Tribunal is incapable of doing so. Consequently, Article 178 jeopardizes the plans of Polish closet autocrats. Even if a ruling party replaces key constitutional justices of the Constitutional Tribunal with its supporters, it can only count on their effectiveness in upholding unconstitu- tional legislation if it can also prevent judges in all courts entitled to act upon such legislation on the basis of Article 178 from doing so. In order to influence these lower court judges, PiS thus also had to control the Supreme Court, the court of appeal for lower-level decisions. With the Supreme Court on PiS’s side, any judge interpreting the constitution at odds with the ruling party would risk having its deci- sion reversed by the PiS-controlled Supreme Court. Since frequent reversals under- mine judicial careers, few lower-court judges take this risk. The Supreme Court is not only the court of appeal for lower-level courts: the constitution also makes it responsible for determining the validity of all nationwide referenda, as well as elections to the Sejm and Senate. Hence, it is within the powers of the Supreme Court to rule an election invalid, should an incumbent lose. Another key Supreme Court task is reviewing reports by parties seeking reimbursement for electoral expenditures. Poland, in contrast to the United States, has a public electoral campaign financing system. Upon clearing a threshold of 3% of the national vote, parties seek reimbursements for campaign expenditures up to 4.04 PLN per vote from the state treasury. Yet, to be reimbursed, the applicant’s books must be deemed “in order” by Supreme Court judges. Denial of compensation to opposition parties by an autocrat-controlled Supreme Court can thus be interpreted as a “slow-bleed” strategy to bankrupt the opposition and eliminate electoral competition. The lateral institution to the Supreme Court is the Constitutional Tribunal, the equivalent of the Supreme Court in the US and of constitutional courts in other countries except in that it only deals with the constitutionality of legislation passed in the Sejm and of legal norms applied in decisions of lower-level courts. A final key body worthy of inclusion in this primer is the National Council of the Judiciary. This independent body makes recommendations on who should be appointed as a judge and initiates disciplinary action against members of the judi- ciary. Final disciplinary decisions are carried out by a special Ombudsman for Discipline. The next set of judicial reforms, initiated in the beginning of 2016, eliminated the middle layers of the court system—the regional and appellate courts—and forced judges over 65 to retire unless they received an exemption from the Minister of M. Nalepa 1 3 Justice. Such permission would only be granted following vetting by a special com- mission. The reforms also made it easier for the government to impose disciplinary actions on all judges, bypassing the National Council of the Judiciary. This has been accomplished by giving parliament the authority to appoint members to the National Council of the Judiciary.7 In July 2017, the PiS controlled parliament approved legislation to drastically change the composition and functioning of the Polish Supreme Court. The Jus- tice Minister was handed discretion over who among the judges of the Supreme Court could remain in office and who was to be forced into retirement. Effectively, this reduced the number of judges from 87 to 31.8 The prerequisites for holding a Supreme Court seat were lowered to a minimum of 12  years of experience in a regional court. Since the Minister of Justice already also holds the position of Prosecutor Gen- eral, the reforms have allowed the ruling majority to choose both the prosecutor and the judge in every single court case. The bill was not implemented immediately as the speed with which PiS guided it through the legislative agenda invited public out- cry. After tens of thousands of Poles in over 100 cities protested the rapid and radi- cal reform, Andrzej Duda—PiS’s President—vetoed the bill, ostensibly to protest the facts that he had not been consulted at the time of its preparation and that it transferred too much power into the hands of the Minister of Justice. Nevertheless, following some compromises which distributed control over the selection of judges between the Ministry of Justice and the Presidency, Duda conceded and the final set of judiciary reforms was passed in December 2017. Experts concluded that this most recent bill alone potentially conflicted with at least two articles of the constitution (Articles 181 and 182), but the measure was not struck down because PiS sympathizers already occupied a majority of the Consti- tutional Tribunal bench. Hence, so far, none of PiS’s actions can be unequivocally considered unconstitutional. Yet, the attractiveness of such moves to closet autocrats is clear: one can think of several reasons why a closet autocrat would want to take control over Poland’s Supreme Court, the National Council of the judiciary, and lower level courts in this way. First, the Supreme Court could invalidate elections lost by PiS. Second, by using the “slow-bleed” strategy described above, it could deny reimbursements to opposi- tion parties. Third, the most influential opposition party to date—Civic Platform— could take a heavy blow if Donald Tusk, its former leader and current Council of Europe president, were put on trial before the State Tribunal. The State Tribunal is a special judiciary body for assessing the constitutional liability of persons holding the highest state rank. This process could result in criminal punishment and a loss of civil rights. The Chief Justice of the Supreme Court serves, ex oficio, as the justice 7 By a reading aligning with Brinks and Blais (2019), this move could be interpreted on the surface as broadening the coalition entitled to recall judges and thus as a move toward increasing and not decreas- ing the court’s autonomy. Yet, in the specific Polish context, where the overwhelming parliamentary majority is from PiS, the autonomy of the court was likely to decrease rather than increase. 8 Technically, 43 judges remained, but 12 would sit in a newly-created “disciplinary department,” so 31 judges would do the work of 87. 1 3 Transitional justice and authoritarian backsliding presiding over the State Tribunal. Tusk’s alleged crime is the murdering of Jaroslaw Kaczynski’s twin brother, Lech Kaczynski, who was Poland’s president until he per- ished in a plane crash over Smolensk, Russia. According to Jaroslaw Kaczynski, Tusk sabotaged the investigation into the catastrophe and allowed it to be declared an accident much sooner than it ought to have been. Finally, gaining steering control over the Supreme Court would allow Kaczynski to pardon a close ally and associate, Mariusz Kaminski. In a 2015 case, a regional court sentenced Kaminski, the former head of the Central Anticorruption Bureau, to 3 years in prison for abuses of power. In November of 2015, within days of assuming office, President Andrzej Duda par- doned him. However, the Supreme Court annulled the pardon in March 2017. Bar- ring a reversal, Kaminski would go to prison. Polish political events in recent years suggest that very conflicting interpretations of PiS’s actions exist alongside each other. For some, PiS is a party of ideological conservatives that promises to complete, once and for all, Poland’s TJ program. To others, it is a party of closet autocrats. Policies that some interpret as dismantling checks and balances and undermining the rule of law can also be interpreted as set- tling scores with the communist past. Poland’s case is not isolated. Similar events are playing out in Hungary and Turkey. While Turkey has had a weaker standing on democratic principles than Poland and Hungary, Erdogan’s attempts to change the regime from parliamentary to presidential can be interpreted as coup-proofing or as an attempt to concentrate power in the hands of a single politician (Cinar, forthcoming). 5 Survey evidence The previous section established that conditions for the NVC model could obtain in Poland. However, I have yet to establish that this model is actually better at explain- ing Poland’s backsliding trajectory than Svolik’s theory, which—recall—does not rely on uncertainty about the incumbent’s true identity. In this section, I adjudicate between these two models further by developing two contrasting hypotheses about the determinants of voting for PiS. Both models predict that voting for PiS ought to increase with polarization. However, in addition to elite polarization, the NVC requires polarization in the electorate and a negative effect of beliefs that the poli- cies implemented by PiS are those of a closet autocrat. Specifically, voting for PiS is more likely when respondents believe that judicial reforms are none other than the continuation of a TJ program that should have reached the judiciary. Relatedly, while both models underscore polarization as a leading cause for reelecting the autocrat, the latter model is compatible with voters exhibiting a strong aversion to authoritarian rule. I will first present evidence in support of both models. These first data come from historical surveys and illustrate increasing levels of polarization between political elites in Poland in the twenty first century. This can be used to support either the Svolik or the NVC model. Following this, I provide evidence from a contempo- rary survey that allows for adjudication between the two theories by showing that M. Nalepa 1 3 respondents’ willingness to reelect closet authoritarians impersonating ideologi- cal conservatives decreases with their beliefs that the incumbent is indeed a closet autocrat. 5.1 Elite polarization in historical surveys The measuring of elite polarization is possible thanks to reliable public opinion polls that have been conducted according to a uniform sampling technique between 2001 and 2011. The surveys come from the Center of Public Opinion Research, CBOS, a public opinion polling company with more than 35 years of experience in conducting surveys.9 It fields regular surveys on stratified samples representative of Polish citizens between the ages of 18 and 75. It uses face-to-face interviews and has consistently included in its questionnaire the same battery of questions pertaining to political preferences and trust of political institutions. The question I use from the historical surveys is “Persons in public life—in their behavior, in what they say, and what they try to achieve—can arouse more or less trust. We will show you now a list of persons active in public life and ask you to what extent this person is trustworthy. − 5 means that you feel great distrust towards this person, 0 means you are indiffer- ent and 5 means that you trust them completely. And of course, you can make use of any numbers between − 5 and 5 to express your trust towards this person. Please let us know if you do not know this person.” In addition, based on current political events, CBOS supplements the regularly- asked questions with additional ones (I will make use of these surveys in the next section of this article). The period 2001–2011 coincides with the time when PiS and PO—the two largest parties in Poland—alternated in government and were led by the same two leaders. Both parties are descendants of Electoral Action Solidarity (AWS), the umbrella party organization uniting former anti-communist dissidents with roots in the independent Solidarity trade union.10 Beginning in 2003, the main cleavage dividing Polish voters was no longer allegiance to the former communist autocrats or their opposition, but a more classical conservative-liberal cleavage (Car- roll and Nalepa 2019). At that time, the two parties started separating ideologically. To measure elite polarization, I use CBOS’s feeling thermometer question, described above, gauging respondents’ sympathy towards Kaczynski and Tusk, the 9 The Center for Public Opinion Research (CBOS) was created in communist Poland, but was given a fair amount of autonomy in running the surveys. CBOS was created when Poland’s communist authori- ties came to the realization that relying on reports from the secret police alone left them unprepared for outbreaks of popular dissidence. The Martial Law scenario could have been avoided altogether had the authorities been adequately informed of popular support for the Solidarity trade union. Relying exclu- sively on the reports from Sluzba Bezpieczenstwa (SB), the state secret police, was no longer feasible, because this data had informed the decision to legalize Solidarity (Kwiatkowski 2004). Among other strategies, the managerial positions of CBOS were staffed by sociologists from Warsaw University’s IFiS, the relatively independent social science department, whose team of sociologists, under the leader- ship of Stefan Nowak and Wojciech Adamski, started conducting public opinion poll surveys during the 18-month period when Solidarity was a legal trade union. 10 The breakup of AWS and the crisis of SLD have been considered by scholars studying the region to mark the end of the so-called “regime divide” in Poland (Grzymala-Busse 2001). 1 3 Transitional justice and authoritarian backsliding leaders of PiS and PO, respectively. The formula describing the polarization meas- ure is TrustPO represents trust towards the leader of PO, Donald Tusk (and in 2017, Grzegorz Schetyna); TrustPiS is the trust towards the leader of PiS; n is the total number of respondents.11 The absolute value is necessary because we are interested simply in the absolute distance between the two leaders as perceived by individual respondents. If the absolute value is not taken before distances are averaged, differ- ences may cancel each other out. For instance, if one respondent expresses highest sympathy for Kaczynski and lowest sympathy for Tusk, while another respondent expresses highest sympathy for Tusk and lowest for Kaczynski, the mean of their differentials would be zero without the use of the absolute value. Yet, such prefer- ences are consistent with the highest elite polarization possible as measured by these questions. Measuring polarization as the mean differential between sympathy for each of the primary party leaders is a slight departure from the way polarization is measured in the American Politics context, where individual respondents are asked for their views on specific issues and the responses of Democrats and Republicans are com- pared (see Fiorina and Abrams 2008). In this context, the main question is the extent to which polarization is explained by partisan sorting. I depart from this because I want to pin down how distant political elites are from one another in the eyes of the (1)Elite Polarizationt = n∑ it ||TrustPOit − TrustPiSit|| n . 2001 2004 2007 2011 Fig. 2 Elite Polarization (“diff_mean”) trend from 2001 (92nd CBOS survey to 2011 (165th CBOS sur- vey) 11 Theoretically, n should also have a t subscript, as it will vary from one survey to the next, although it is typically around 1000 respondents. M. Nalepa 1 3 public. This measure is closer to the concept of voters’ perceptions from both Svolik and NVC. Figure 2, below, shows the Elite Polarization (marked as “diff_mean”) trend start- ing in 2001 with the 92nd survey conducted by CBOS and ends in 2011 with the 165th survey. The figure shows an increase in polarization around the 140th survey (in 2005). This is the year PiS won a plurality in the parliamentary elections for the first time (and entered into a cabinet coalition with two other parties: Samoobrona and the League for Polish Families). The increase continues until 2011, the year when PO took over the reins of government, a situation that persisted until 2015. Elite polarization in the contemporary survey discussed in the next section is 4.707 with a standard deviation of 3.21, indicating that current elite polarization surpasses its highest value from the 2001–2011 period. This result suggests that one of the conditions for the NVC equilibrium is satis- fied in the Polish case. However, this evidence is also consistent with other mod- els of authoritarian backsliding, such as that of Svolik (2020). To find more direct support for NVS, we need to look beyond increases in elite polarization over time and establish conditions for obtaining the equilibrium in which voters reelect incum- bents because they are uncertain whether they are dealing with an ideologue or with a closet autocrat. 5.2 Polarization in the electorate: contemporary surveys For this further evidence, I turn to a contemporary CBOS survey from August 2017, the month directly following a presidential veto over the bills proposing the politici- zation of the National Council of the Judiciary and the Supreme Court. Recall that the Supreme Court is the highest court of appeal and for all practical purposes over- laps with the Supreme Court of the US except for in verifying the constitutionality of legislation. The National Council of the Judiciary, on the other hand, is the sole advisory body nominating candidates for judges and initiating disciplinary action against judges. The survey I use here was conducted within days of intense and nationwide pro- tests that prompted the President’s decision to veto two bills that would have brought the judiciary under complete political control. Although observational data from surveys does not allow me to establish that uncertainty about the kind of incumbent voters are facing causes voters to support the incumbent, I show evidence that the association between uncertainty and incum- bent voting increases with anti-authoritarian attitudes, exactly as the NVC model would lead us to expect. In addition to predicting this effect of beliefs, the NVC model leads to expecta- tions that respondents perceiving elite polarization to be higher and respondents who are further away from the opposition candidate are likely to vote for the incumbent, even when their anti-authoritarian predisposition is high. I quantify Subjectively Perceived Elite Polarization (SPEP) with a measure related to the one described in Eq. (1), but I do not average the measure across respondents. Hence: 1 3 Transitional justice and authoritarian backsliding As before, I take the absolute value of the differential between trust in PiS leader Kaczynski and in the current PO leader (who is Schetyna and no longer Tusk). The index i indicates that this polarization is measured at the level of each respondent. The index over time is dropped because I now only deal with one survey. Finally, I need to measure polarization in the electorate—that is, the distance between the citizen and the opposition candidate. This is best captured with simply the citizen’s sympathy toward Schetyna, the PO leader: Next, to measure citizens’ beliefs as to whether they are facing a closet autocrat or an ideological conservative, I use respondents’ expressed attitudes on the July 2017 protests; these protests in defense of the National Council of Judiciary and Supreme Court independence led the President to veto the two controversial bills. Since the protesters argued that both reforms violated the constitution, a respond- ent’s support for the protest can serve as an indicator of a belief that the incumbent is a closet authoritarian. This variable is labeled Support_Protestsi Finally, in order to measure how much citizens care for the authoritarian dimen- sion, I use the degree to which respondents agree with the following four questions gauging respondents’ sensitivity to authoritarianism. The four questions that meas- ure the respondents’ sensitivity to the authoritarian dimension asked the respond- ent about the extent to which he or she agreed with the following four separate statements. 1. “Democracy is superior to any other form of rule” (variable labeled Authoritarian Ii) 2. “For people like me, it does not matter whether the regime is authoritarian or democratic” (variable labeled Indifferenti) 3. “Sometimes Non-democratic rule is better than democratic rule” (variable labeled Authoritarian IIi) 4. “Government by a strong leader is decidedly better than democratic rule” (vari- able labeled- Strong Leaderi) Respondents could “agree strongly,” “agree somewhat,” “rather disagree,” or “strongly disagree” with the above statements. The answers to the first of the four questions were recoded to match the other three, so that that all four answers increase with pro-democratic values. Higher values of these variables represent stronger disagreement and therefore more pro-democratic values. It is important to point out that these questions are not simply picking up on sym- pathy for the opposition. A correlation table in the Appendix shows that the associa- tion of these measures with Polarization in the Electorate is low. In the results reported below, I use an interaction term between Support_Protests and Polarization in the Electorate to reflect the fact that voting for the incumbent in equilibrium of the NVC model requires both sufficiently high polarization of the (2)SPEPi = |TrustPOi − TrustPiSi|. (3)Polarization in the Electoratei = TrustPOi M. Nalepa 1 3 electorate and sufficiently low beliefs that the incumbent is a closet autocrat. The dependent variable is a dummy, PiSvoteri, indicating that a respondent i answered “PiS” to the question “Were the elections to the Sejm to take place this Sunday, which party would you vote for?” I used the question “Would you vote in the Table 1 Predictors of PiSvoting corroborating the NVC model (logit models) The Bayesian Information (BIC) criterion indicates which model offers a better fit with the data. It decreases with the model’s likelihood t statistics in parentheses *p < 0.05; **p < 0.01; ***p < 0.001 (1) (2) (3) (4) Polarization in electorate 1.276* 0.848 1.366* 1.015 (1.97) (1.25) (2.07) (1.61) PiS protest − 4.734*** − 5.719*** − 4.275*** − 4.826*** (− 6.22) (− 6.76) (− 5.41) (− 6.40) PiSprotest * polarization in electorate 3.382** 4.570*** 2.937** 3.582*** (3.19) (3.95) (2.66) (3.42) Elite polarization 2.344*** 2.933*** 2.351*** 2.549*** (SPEP) (4.85) (5.71) (4.75) (5.44) Authoritarian I 0.242 (1.46) Male − 0.292 − 0.251 − 0.366 − 0.149 (− 1.16) (− 0.94) (− 1.39) (− 0.62) Employed − 0.295 − 0.366 − 0.0517 − 0.238 (− 0.99) (− 1.16) (− 0.17) (− 0.83) Education − 0.128** − 0.118* − 0.105* − 0.106* (− 2.69) (− 2.32) (− 2.15) (− 2.26) Village 0.281 0.311 0.313 0.295 (0.88) (0.94) (0.97) (0.96) City − 0.281 − 0.231 − 0.500 − 0.336 (− 0.86) (− 0.68) (− 1.50) (− 1.06) Age 0.000794 − 0.00146 0.00771 − 0.000115 (0.09) (− 0.17) (0.90) (− 0.01) Religiosity 1.425* 0.819 1.067 1.179 (2.19) (1.31) (1.72) (1.95) Authoritarian II 0.264 (1.71) Strong leader − 0.290* (− 1.98) Indifferent − 0.0629 (− 0.43) Constant − 1.898 − 1.277 − 1.177 − 1.189 (− 1.92) (− 1.31) (− 1.24) (− 1.27) N 577 545 560 603 BIC 511.6 471.5 495.2 537.4 1 3 Transitional justice and authoritarian backsliding parliamentary elections were they to take place this Sunday?” to filter out non-vot- ers. Thus, the regressions are run only on voters and the sample is slightly smaller than the representative sample of Poles between 18 and 75. Table  1 presents a regression of PiSvoteri on this set of independent variables obtained from the survey along with demographics such as age, gender, and education. Because of the dichotomous nature of my dependent variable, I chose a nonlinear probability model—specifically, a logit in the following format: “Demographics” includes gender, employment status, urbanization, education, and religiosity.12 I expect the effect of Subjective Perception of Elite Polarization and Polarization in the Electorate to be positive and SPEPi ∗ PiS_Protesti to be negative (and more negative for higher values of Polarization in the Electorate). Results of four models run using different operationalizations of anti-authoritar- ian attitudes are presented in Table 1 below. The effects of Polarization in the Electorate and SPEP are significant and in the expected direction, increasing the probability of voting for PiS. The individual effect of beliefs that the incumbent is a closet autocrat is negative. What is of interest, however, is the combined effect of beliefs and Polarization in the Electorate on the probability of voting for PiS. We see that while one of the constituent terms is nega- tive, the other is positive. The optimal way to visualize these effects is by graphing the average effect of beliefs for different levels of polarization. Figure  3 graphs the marginal effect of citizen beliefs that they are dealing with a closet autocrat (measured by PiSProtest) for different levels of Polarization in the Electorate (measured by TrustPO). It clearly shows that the interaction is negative. An increase in the belief that the voter is facing a closet autocrat decreases the prob- ability of reelection for all levels of polarization in the electorate, but particularly for low levels of polarization. Concretely, when polarization is low, the average effect of the belief that the incumbent is a closet authoritarian is a decrease in the probability of reelection by about 52%, but when polarization is high, the effect is only about 20%. The expectations for the effect of sensitivity to authoritarian rule (Authoritarian I, Authoritarian II, Indifferent and Strong Leader) is harder to interpret. Therefore, Pr(PiSvoteri = 1) = 1 1 + e−xi� where ��� = �1TrustPOi + �2SPEPi + �3PiS_Protesti + �4SPEPi ∗ PiS_Protesti +�5AuthoritarianIi + �6Indifferenti + �7AuthoritarianIIi + �8Strong Leaderi +�JDemographics 12 The demographics include whether the respondent lives in a large city or village (with towns being the default category) and whether the respondent is religious. Employment is measured with an ordinal scale between 0 and 1, with 0 and 1 representing unemployment and full-time employment, respectively. Religiosity is measured with a dummy variable which takes on the value of 1 when the respondent goes to church at least once a week or more on average. For Poland, a highly Catholic country made up of sys- tematic churchgoers, setting the dummy at this threshold captures most variation. M. Nalepa 1 3 in order to illustrate the effect of this sensitivity, in the context of the survey at hand, I proceed as follows. First, I split the sample into respondents who answered the sensitivity questions positively (yes and rather yes → High) and those who answered the sensitivity questions negatively (no and rather no → Low). The results of these split sample tests are presented in Table 2 below. In line with expectations, the effects of anti-authoritarian sensitivity (Antiauthori- tarian2, Strong Leader, and Indifferent) are significant and in the expected direction in two out of three of the models representing citizens who are deeply anti-authoritar- ian, but entirely insignificant and/or in the wrong direction in all models representing citizens who weight the authoritarian dimension lightly. Furthermore, the substantive effects of these variables are higher than in the pooled sample from Table 1. In addi- tion, that the remaining effects of the parameters remain stable in the models where respondents assign heavy authoritarian weight adds confidence to my findings. 6 Discussion and shadow case: Hungary Although the above results corroborate the NVC as the appropriate model for under- standing authoritarian backsliding in Poland, the inferences from a cross section of the population at one point in time should be interpreted with caution and should only be treated as a suggestive illustration of the dynamics at play in conjunction with the qualitative analytic narrative. Moreover, at this point in time, Poland can be interpreted as, at worst, a “slid- ing” autocracy. A free media and a parliamentary opposition (since 2019 enjoying a majority in the upper house) remain, and Kaczynski has backed down in response to verdicts from the European Union Constitutional Court. Moreover, in July of 2020, the liberal candidate for the Presidency, Rafal Trzaskowski, came dangerously close in the general election tu replacing Duda, the current incumbent. Fig. 3 Average marginal effects of belief that incumbent is a closet autocrat for different levels of polari- zation in the electorate (based on model 4 from Table 1) 1 3 Transitional justice and authoritarian backsliding For a less ambiguous case, although one without similarly high-quality survey data, we may turn to Hungary. There, Fidesz, Victor Orban’s party, was elected into office with a majority large enough to change the constitution in 2010. Fidesz originated in the youth section of the Free Democrats’ Party (SzDSz), the most prominent dissident organization that negotiated the terms of democratic transition with the communists in Table 2 Logit regressions of PiS voting on split samples according to high or low democratic attach- ments t statistics in parentheses *p < 0.05; **p < 0.01; ***p < 0.001 (1) (2) (3) (4) (5) (6) High Low High Low High Low Polarization in electorate 0.900 0.977 2.925** − 1.181 0.0729 3.754** (0.94) (0.83) (3.27) (− 0.97) (0.09) (2.68) PiS protest − 5.870*** − 5.548*** − 3.155** − 5.275*** − 5.969*** − 1.675 (− 5.53) (− 3.44) (− 3.22) (− 3.38) (− 6.24) (− 1.24) PiSprotest * polarization in electorate 4.476** 4.869* 0.789 5.945** 5.253*** − 0.881 (3.00) (2.27) (0.56) (2.63) (3.98) (− 0.42) Elite polarization (SPEP) 2.439*** 3.556*** 1.781** 4.051*** 2.991*** 1.047 (3.62) (3.85) (2.91) (3.71) (5.29) (1.03) Authoritarian − 0.245 0.464 (− 0.70) (0.73) Male 0.196 − 0.748 − 0.326 0.0992 − 0.250 0.120 (0.59) (− 1.49) (− 1.00) (0.19) (− 0.87) (0.23) Employed − 0.856* 0.403 − 0.129 − 0.0478 − 0.404 0.598 (− 2.08) (0.69) (− 0.33) (− 0.09) (− 1.20) (0.93) Education − 0.127* − 0.127 − 0.146* − 0.0249 − 0.0919 − 0.118 (− 1.97) (− 1.31) (− 2.31) (− 0.29) (− 1.68) (− 1.16) Village 0.621 0.192 0.455 − 0.0225 0.246 0.862 (1.49) (0.30) (1.12) (− 0.04) (0.68) (1.19) City 0.320 − 0.755 − 0.348 − 1.008 − 0.346 − 0.334 (0.74) (− 1.19) (− 0.83) (− 1.63) (− 0.93) (− 0.48) Age − 0.0215 0.0302 − 0.00272 0.0196 − 0.0109 0.0458* (− 1.85) (1.85) (− 0.25) (1.27) (− 1.13) (2.20) Religiosity 1.039 1.582 1.292 0.595 1.307 − 0.298 (1.32) (1.06) (1.59) (0.50) (1.88) (− 0.20) Strong leader − 0.805* 0.182 (− 2.37) (0.35) Indifferent − 0.610* 0.451 (− 2.06) (0.67) Cons 0.889 − 4.172* − 0.0848 − 1.522 1.201 − 4.786* (0.61) (− 2.09) (− 0.06) (− 0.92) (0.94) (− 2.11) N 370 175 410 150 474 129 BIC 319.4 193.1 340.8 195.6 413.4 166.3 M. Nalepa 1 3 1989. When members of Fidesz became too old to call themselves a youth organization, they created a new party, changing the spelling of the organization from the acronym FiDeSz (which stood for “Youth Organization of SzDSz”) to Fidesz, which in Hungar- ian means “loyalty.” At the same time, the new party also began experimenting with conservative values. The final push toward abandoning liberal ideology was the com- petition for power between Fidesz and JOBBIK, a radical anti-Semitic and anti-Roma organization that was rapidly gaining traction in the polls, particularly in the peripheries of the country. To capture JOBBIK’s electorate, Fidesz moved even farther to the right. Upon winning the 2010 elections, Orban blamed liberal policies and a failure to hold the communists accountable  and for the rise of chauvinistic parties like JOBBIK. The first pieces of legislation that came out of the Fidesz-controlled legislature resulted in the weakening of the Constitutional Court. Within the post-communist region, the Hungarian Constitutional Court had more autonomy and authority than any other court,13 enjoying powers of abstract review that allowed the court to issue decisions on the constitutionality of bills while they were still in the legislative process. The court could also review any bill after its passage, provided the bill had an impact on the country’s budget. Through these two channels, the Court had repeatedly struck down any but the mildest TJ laws. Orban’s legislation first increased the number of judges on the bench so that he could staff it with his own supporters. Next, he did away with the prerogatives of abstract review and budget impact review. Finally, Fidesz severely restricted the rights of ordi- nary citizens to initiate the process of constitutional review. Even after passing ten amendments to the constitution, however, Fidesz was still not satisfied with the number of checks on its power that remained in place. Shortly, Orban started work on drafting an entirely new constitution. The pretext for changing the constitution was that the cur- rent Hungarian basic law had been negotiated during the roundtable talks with the com- munist government and had thus been agreed to under duress, as the communist regime was still in power. Given that these reforms could be interpreted as “doing transitional justice right,” many Fidesz supporters believed that Orban had remained “unchanged from the anti-communist rabble-rouser of the past and that charges of incipient dictator- ship are left-wing fantasies” (NYT Nov 24, 2014). Five years ago, Zoltan Kovacs, his international spokesman, described him as “the same guy he used to be 25 years ago [who] wants to get rid of the attitudes, the remnants of the former system and get rid of the attitude that people live on social aid rather than work” (NYT Nov 24, 2014). In April 2018, Orban’s Fidesz yet again emerged victorious in the parliamentary elections. This time, with only a plurality of the vote, the party cleared the two-thirds supermajority necessary to amend the constitution to bring the judiciary under the con- trol of the executive. One did not have to wait long for the results. One month after the election, a flurry of judges from the National Judiciary Council started resigning just days before the announcement of a verdict against one of Orban’s oldest cronies (NYT, After Orban’s Victory, Hungary’s Judges Start to Tumble, May 1, 2018). The intimida- tion of a large number of judges who were part of the body meant to ensure judicial independence in Hungary became an ominous sign for the future of the rule of law in Hungary. 13 I am using the terms “autonomy” and “authority” in line with the theory presented by Brinks and Blass (2019), who argue that these two dimensions better capture what conventionally passes as judiciary independence. 1 3 Transitional justice and authoritarian backsliding Orban’s authoritarian tendencies did not end with the judiciary. Since passing the new constitution, his government has brought all free print media to a close or trans- ferred their operations online (Nolan 2019) and driven out of Hungary the Central European University, the bastion of liberal education founded by philanthropist and Open Society promoter George Soros. Arguably, both Poland and Hungary match the conditions of the pooling equi- librium in which citizens reelect the incumbent not knowing whether he is a closet authoritarian. The above analytical narratives from Poland and Hungary show that these two countries are consistent with the ideological conservative and the closet autocrat pooling policy proposals and getting reelected into office. 7 Conclusion In light of the evidence presented above, there are strong reasons to believe that TJ policies (or a lack thereof) are in part to blame for undermining the rule of law in places like Poland and Hungary. Because the judiciary was in large part shielded from purges and lustration, PiS and Fidesz, ruling parties on the right, have been able to convince the electorate that packing courts and bringing courts under politi- cal control are part of a decommunization program that would ultimately make the courts more efficient. I have argued that voters that reelected PiS did so not because they disapprove of the opposition so strongly that they were willing to replace the PO with an autocrat. Rather, the evidence presented here suggests that beliefs mat- ter and that given the choice, PiS voters, too, want to avoid voting for someone they believe to be a closet autocrat. This argument is thus different from alternative mod- els of authoritarian backsliding, such as Svolik’s, in which the ideological distance between the voter and the opposition incumbent is precisely what induces voters to cast their support for a candidate they know to be authoritarian. Funding This work was supported by the National Science Foundation (Grant No. 1658170), the Center for International Social Science Research at the University of Chicago and the Pozen Family Center for Human Rights at the University of Chicago. Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Com- mons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creat iveco mmons .org/licen ses/by/4.0/. Appendix See Table 3. http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ M. Nalepa 1 3 References Bates, G., Cinar, I., & Nalepa, M. (2020). Accountability by numbers: A new global transitional justice dataset (1946–2016). Perspectives on Politics 18(1), 161–184. Brinks, D., & Blass, A. (2019). DNA of constitutional justice in Latin America. Cambridge: Cambridge University Press. Carroll, R., & Nalepa, M. (2019). When do open lists matter? The consequences of the personal vote for party loyalty. Parliamentary Affairs. https ://doi.org/10.1093/pa/gsz02 7. Cinar, I. (forthcoming). Democracy dismantled: Strategic choices of the would-be autocrats. Constitu- tional Political Economy. David, R. (2003). Lustration laws in action: The motives and evaluation of lustration policy in the Czech Republic and Poland (1989–2001). Law & Social Inquiry, 28(2), 387–439. Fiorina, M. P., & Abrams, S. J. (2008). Political polarization in the American public. Annual Review of Political Science, 11, 563–588. Graver, H. P. (2016). Judges against justice. Berlin: Springer. Grzymala-Busse, A. (2001). Coalition formation and the regime divide in new democracies: East Central Europe. Comparative Politics, 34(1), 85–104. Horne, C. M. (2009). Late lustration programmes in Romania and Poland: Supporting or undermining democratic transitions? Democratization, 16(2), 344–376. Huntington, S. P. (1993). The third wave: Democratization in the late twentieth century (Vol. 4). Univer- sity of Oklahoma press. Kaminski, M. M., Nalepa, M., & O’neill, B. (2006). Normative and strategic aspects of transitional jus- tice. Journal of Conflict Resolution, 50(3), 295–302. Kwiatkowski, S. (2004). Szkicownik z CBOS-u: Rysunki socjologiczne z tamtych lat. Wyższa Szkoła Społeczno-Gospodarcza. Magalhaes, P. C. (1999). The politics of judicial reform in Eastern Europe. Comparative Politics, 32, 43–62. Nalepa, M. (2010). Skeletons in the closet: Transitional justice in post-communist Europe. Cambridge: Cambridge University Press. Nolan, D. (2019). Remote controller: What happens when all major media, state and private, is con- trolled by Hungary’s government and all the front pages start looking the same. Index on Censor- ship, 48(1), 54–56. Panebianco, G. (2015). The Nulla Poena Sine Culpa principle in European courts case law. In S. Rug- geri (Ed.), Human rights in European criminal law (pp. 47–78). Cham: Springer. https ://doi. org/10.1007/978-3-319-12042 -3_4. Pogany, I. S. (1997). Righting wrongs in Eastern Europe. Manchester: Manchester University Press. Popova, M. (2012). Politicized justice in emerging democracies: A study of courts in Russia and Ukraine. Cambridge: Cambridge University Press. O’Donnell, G., & Schmitter, P. C. (2013). Transitions from authoritarian rule: Tentative conclusions about uncertain democracies. Johns Hopkins University Press Snyder, J., & Vinjamuri, L. (2004). Trials and errors: Principle and pragmatism in strategies of interna- tional justice. International Security, 28(3), 5–44. Sólyom, L. (2003). The role of constitutional courts in the transition to Democracy: With special refer- ence to Hungary. International Sociology, 18(1), 133–161. Table 3 Correlation between measure of authoritarian sympathy and polarization Societal polari- zation Authoritarian I Indifferent Authoritarian II Polarization in electorate Authoritarian I −. 03 Indifferent .02 − .18 Authoritarian II .11 − .27 .42 Strong Leader .19 − .17 .38 .48 https://doi.org/10.1093/pa/gsz027 https://doi.org/10.1007/978-3-319-12042-3_4 https://doi.org/10.1007/978-3-319-12042-3_4 1 3 Transitional justice and authoritarian backsliding Sólyom, L., Brunner, G., & Breyer, S. G. (2000). Constitutional judiciary in a new democracy: The Hun- garian Constitutional Court. Ann Arbor: University of Michigan Press. Svolik, M. W. (2020). When Polarization Trumps Civic Virtue: Partisan Conflict and the Subversion of Democracy by Incumbents. Quarterly Journal of Political Science, 15(1), 3–31. https ://doi. org/10.1561/100.00018 132. Data source CBOS surveys [insert all numbers here]. CBOS “Przeglądówka_Sierpien” survey, conducted on February 2, 2017 August, 18, 2017. Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. https://doi.org/10.1561/100.00018132 https://doi.org/10.1561/100.00018132 Transitional justice and authoritarian backsliding Abstract 1 Introduction 2 Lustration laggards, or operating within the constraints of rule of law 3 Competing theories of authoritarian backsliding 4 An analytic narrative from Poland 5 Survey evidence 5.1 Elite polarization in historical surveys 5.2 Polarization in the electorate: contemporary surveys 6 Discussion and shadow case: Hungary 7 Conclusion References 
work_mleskaymevg7vl4f6xuft4qytm	----	Microsoft Word - Empathy full issue.docx Empathy: What is it, and why does it matter? By Lauren Bull Empathy is like an English semicolon. The word is used frequently, by many people, but is rarely defined, and therefore is often misunderstood. Most of us feel that empathy is important, but struggle to explain exactly why, especially to the stubborn dissenters who argue against the need for it at all. Despite being bandied about since the turn of the 20th century, the concept of empathy has received steadily growing attention in Western cultures over the past several decades. Recently, this focus has shifted onto younger generations, and attempts to determine how and why empathy develops (or doesn’t) in children and teens, including how it impacts them later on in life. Before diving into an exploration of young adults and empathy, however, we first need to clarify what the word means to us, and why it matters so much for youth today. Alright, give me a one sentence definition of empathy. If there’s one thing librarians, neurobiologists, teachers, psychologists, writers, philosophers, and researchers can all agree on, it’s that there is no one definition. Decety and Cowell (2015) describe empathy as “an unwieldy concept” that can refer to “a heterogenous collection of related phenomena” (p. 4), while Zaki and Ochsner (2012) call it “a term historically fraught with interpretational ambiguity” (p. 677). Given that ‘sympathy’ was previously used in English to describe what we now usually term ‘empathy,’ this confusion around the word is hardly surprising (Koopman, 2015). So, what is it, then? Historically, empathy has been described as bidimensional, having both a cognitive, intellectual component as well as an affective, emotional one (Keen, 2006; Kzarnic, 2008; Gerdes, Lietz, & Segal, 2011; Zaki & Ochsner, 2012; Decety & Cowell, 2015; Koopman, 2015). Cognitive empathy is described as the practice of taking on another person’s perspective, or mentally recognizing and understanding their emotional state, while affective empathy involves mirroring and sharing in those emotions (Gerdes, Lietz, & Segal, 2011; Zaki & Ochsner, 2012). YA Issue: Empathy 2 Whew, is that all? Actually, some researchers have also proposed a third dimension that involves an active response or conscious decision-making, grounded in “prosocial concern” (Gerdes, Lietz, & Segal, 2011; Zaki & Ochsner, 2012). Krznaric (2008) argues, though, that since the concept of an “appropriate response” is both highly subjective and contextual, it shouldn’t be a necessary consideration for defining empathy. This debate is ongoing. This is starting to sound complicated. It can be. The real key, though, is distinguishing empathy from “personal distress.” This is when seeing and sharing in someone else’s emotions causes a person to feel anxiety and discomfort, triggering an aversive or avoidant response (Keen, 2006; Zaki & Ochsner, 2012). They feel, are overwhelmed, and pull away. This self-oriented event is a far cry from empathy, as it lacks the cognitive self-awareness and emotional regulation that encourage other-oriented action (Keen, 2006; Gerdes, Lietz, & Segal, 2011). Okay, well how is empathy measured? Empathy has often been measured by having individuals complete self-report questionnaires, ranking themselves according to how well they fit certain statements or characteristics (Gerdes, Lietz, & Segal, 2011). Advances in neuroscience have led to the use of more technologically-driven strategies as well, such as fMRI scans, facial expression mapping and electromyographic procedures, and heart rate and skin conductance monitoring (Keen, 2006). A critique of these traditional measurements is that they have typically tested for only one ‘kind’ of empathy, using decontextualized cues and artificial situations (Zaki & Ochsner, 2012). The Reading the Mind in the Eyes test (RMET), for example, targets the cognitive ability to identify another’s emotion (Koopman, 2015), but compromises its own validity through an oversimplified approach. More realistically complex and intersectional tests also yield inconsistent results, however (Decety & Cowell, 2015), prompting the conclusion that measuring empathy is complicated and imprecise at best. If it’s hard to define and complicated to measure, why are we still talking about it? Because, in the long run, empathy matters. Together with a whole host of other social YA Issue: Empathy 3 and emotional competencies, it has been demonstrated to lessen violent and aggressive tendencies and “boost self-esteem,” as well as “contribute to...the disposition to learn, improve [school] attendance and contribute to general academic success” (Kznaric, 2008, p. 8). Empathy also “‘represents the foundation skill for all the social competencies important for work,’” (Goleman, 1998, as cited in Kznaric, 2008, p. 14). People who are more empathic also tend to have better developed workplace and interpersonal skills, like cooperation, communication, and management (Kznaric, 2008). Additionally, understanding and responding to others’ emotions is strongly tied to individual and collective decision-making and the potential for social change (Decety & Cowell, 2015). As Kznaric (2008) points out, if we can “learn to see the world from each other’s perspectives, and thereby treat one another differently...we will create the human bonds that will reduce social conflict and encourage new forms of mutual understanding, respect and cooperation” (p. 18). And bringing it back to teens more specifically? All of the benefits associated with empathy can be directly mapped to the Search Institute’s renowned framework of developmental assets for young adults. These include caring, self-esteem, positive communication, equality and social justice, engagement in academics, and interpersonal and cultural competencies, to name just a few (Brautigam, 2008). Okay, I’m sold. Empathy is a game changer. Where do I go from here? I’m so glad you asked. Let’s read on! References Brautigam, P. (2008). Developmental assets and libraries. VOYA, 31(2). Retrieved from http://kdla.ky.gov/librarians/programs/summerreading/Documents/2013_conferen ce_materials/King--Developmental%20Assets%20Voya+Article.pdf Decety, J., & Cowell, J. M. (2015). Empathy, justice, and moral behavior. AJOB Neuroscience, 6(3), 3-14. Doi: 10.1080/21507740.2015.1047055 Gerdes, K. E., Lietz, C. A., & Segal, E. A. (2011). Measuring empathy in the 21st century: Development of an empathy index rooted in social cognitive YA Issue: Empathy 4 neuroscience and social justice. Social Work Research, 35(2), 83-93. Retrieved from http://ezproxy.library.dal.ca/login?url=http://search.ebscohost. com/login.aspx?direct=true&db=c8h&AN=108239609&site=ehost-live Keen, S. (2006). A theory of narrative empathy. Narrative, 14(3), 207-236. Retrieved from http://www.jstor.org/stable/20107388 Koopman, E. M. (2015). Empathic reactions after reading: The role of genre, personal factors and affective responses. Poetics, 50, 62-79. http://dx.doi.org/10.1016/j.poetic.2015.02.008 Kznaric, R. (2008). You are therefore I am: How empathy education can create social change. Retrieved from http://policy-practice.oxfam.org.uk/publications/you-are- therefore-i-am-how-empathy-education-can-create-social-change-114070 Zaki, J., & Ochsner, K. (2012). The neuroscience of empathy: Progress, pitfalls and promise. Nature Neuroscience, 15(5), 675-680. doi: 10.1038/nn.3085 
work_mofzrke5dvawjlf7p6l4wq4yga	----	INTRODUCTION Justice in Nanotechnological Development (Symposium Introduction) Ulrik B. Nissen Received: 28 July 2009 /Accepted: 28 July 2009 /Published online: 11 August 2009 # Springer Science + Business Media B.V. 2009 In October 2008 the Nano Ethics Network held its third workshop at Aarhus University, DK. The theme of the workshop was justice in nanotechnological development. A few of the presentations held at this workshop are brought here as a ‘symposion’. The issue of justice has developed during the last couple of years to be one of the central ethical issues related to nanotechnological developments. A whole variety of issues such as e.g. the relation between knowledge power and distribution of research fund- ing, the north-south divide in terms of economy, intensity of knowledge bases and political power, the associated potential risks and who will suffer these risks are implied in this discussion. The debate on justice in relation to nanotechnological developments raises many questions that need to be addressed. During the workshop only a few of these issues could be discussed. In the following three papers, some of these questions and concerns are raised. In the paper by Foladori et al the focus is on the socio- economic structures and forces in both developed and developing countries. The question is raised, if the development of nanotechnology and nanotechnolog- ically related products either reinforces or reduces the socio-economic injustices prevalent in many of the developing countries. The paper argues that the fundamental challenge lies at the root of the socio- economic systems that tend to increase inequalities. Jamison takes a fresh look at the development of nanotechnology and its relation to the emerging movement for global justice. Jamison argues that much of the nanotechnological development is characterized by a hubris which disregards the societal implications and justice related issues implicit in this field. As the forums where the critical reflection on emerging technologies have changed during the last couple of decades, much of the critical potential has become silent. It is within an emerging group of organizations related to issues of global justice that we find the critical voice which could be integrated in the discussion on justice issues related to the development of nanotechnology. Maclurcan reports on research concerning the so- called ‘nano-divide’. In a comparison of the results from interviews in various professional sectors related to nanotechnological R&D in Thailand and Australia, it is argued that a list of issues is involved in determining, if there is a nano-divide and what this entails. Maclurcan reaches the conclusion that various factors further the nano-divide and some aspects may be seen as a potential for developing countries. Even if it is only a provisional step, the three papers brought here contribute with significant insight in this much needed debate. It remains as a hope that these papers will stimulate the debate even further, as nanotechnological research continues to develop in new directions no less in need of this discussion. Nanoethics (2009) 3:119 DOI 10.1007/s11569-009-0067-x U. B. Nissen (*) Department of Systematic Theology, Aarhus University, Bygning 1443, Tåsingegade 3, DK - 8000 Århus C, Denmark e-mail: UBN@teo.au.dk Justice in Nanotechnological Development (Symposium Introduction) << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (None) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated v2 300% \050ECI\051) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 524288 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveEPSInfo true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /ColorImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org?) /PDFXTrapped /False /SyntheticBoldness 1.000000 /Description << /ENU <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> /DEU <FEFF004a006f0062006f007000740069006f006e007300200066006f00720020004100630072006f006200610074002000440069007300740069006c006c0065007200200036002e000d00500072006f006400750063006500730020005000440046002000660069006c0065007300200077006800690063006800200061007200650020007500730065006400200066006f00720020006f006e006c0069006e0065002e000d0028006300290020003200300030003800200053007000720069006e006700650072002d005600650072006c0061006700200047006d006200480020000d000d0054006800650020006c00610074006500730074002000760065007200730069006f006e002000630061006e00200062006500200064006f0077006e006c006f006100640065006400200061007400200068007400740070003a002f002f00700072006f00640075006300740069006f006e002e0073007000720069006e006700650072002e0063006f006d000d0054006800650072006500200079006f0075002000630061006e00200061006c0073006f002000660069006e0064002000610020007300750069007400610062006c006500200045006e0066006f0063007500730020005000440046002000500072006f00660069006c006500200066006f0072002000500069007400530074006f0070002000500072006f00660065007300730069006f006e0061006c0020003600200061006e0064002000500069007400530074006f007000200053006500720076006500720020003300200066006f007200200070007200650066006c00690067006800740069006e006700200079006f007500720020005000440046002000660069006c006500730020006200650066006f007200650020006a006f00620020007300750062006d0069007300730069006f006e002e> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [5952.756 8418.897] >> setpagedevice 
work_mpcmj2ifdnbwvb2no36v3uf7km	----	Justice Is Not a Psychiatric Term* ROBERT KENNETH C. MARVIT, M.D.,M.SC.,and FUKUNAGA, J.D.,PH.D.·· The centipede had a terrible problem: he was developing a case of extremely painful arthritis. For expert help on the matter, he sought out a wise old owl. The owl pondered the problem and told the centipede that he should turn himself into a frog, since frogs do not get arthritis. The centipede was very happy until he realized that he knew no way he could turn himself into a frog. He returned to the owl for further instructions; the owl replied, "I just advance concepts; don't bother me with solutions." Introduction Today, more than any other medical specialty, psychiatry is being confronted by challenges from all directions. Justice is the banner being carried by the challengers to the practice of psychiatry, and the battle lines cross all aspects of the judicial system - civil, criminal, family court, state and federal. The purpose of this paper is to utilize the traditional medical format of a case presentation for an analysis of issues in order to gain insight from past errors and, one hopes, to avoid further losses on the parts of psychiatrists, courts and patients. Issues The basic issue is the role of psychiatry in providing proper input to the processing of the mentally ill offender. The case under discussion involves at least eighteen current battlefronts: fitness to stand trial, criminal responsibility, civil commitment, right to treatment, right to refuse treatment, unusual and hazardous treatments, informed consent, guardianship, release from confinement, prediction of dangerousness, duty to warn, community outrage and its effect on decision-making, impartiality of the expert, and malpractice exposure in acting as an agent of the court, just to mention a few. These issues are not new, but rather like the dormant locust, have arisen en masse to devour any semblance of reason in their path. The Case A 21-year-old man with a juvenile record was charged with burglary. The public defender asked for a sanity commission to determine his fitness to proceed, his criminal responsibility and a recommendation for treatment. He was found not fit to proceed, not responsible and dangerous. Charges were dropped and he was civilly committed to the state hospital. He received a potpourri of treatments, ranging from isolation to placement -The paper was presented at the annual meeting of the AAPL, San Francisco, October, 1976. - -Dr. Marvit is Research Coordinator. Mental Health Division, State Department of Health, P.O. Box 3378, Honolulu, Hawaii 96801. Dr. Fukunaga is of the Department of Psychology, University of Hawaii. 264 J in a boarding home, along with a wide variety of diagnoses. While still under commitment, he walked away from his least restrictive alternative and two months later was charged with a brutal murder/rape. At this point he was mute, and his attorney asked for, and received, the appointment of a sanity commission. Its recommendation was that the patient/defendant was not fit to proceed, but the court did not agree. A rehearing was granted and an amy tal interview was done, with the appointment of a guardian ad litem since the defendant was unable to give informed consent. Following this procedure, three more psychiatrists recommended that he was not fit to proceed and was in immediate need of medical/psychiatric treatment. The court went ahead with a hearing until the defendant became physically assaultive in court, abruptly ending the hearing. Since, as a matter of public record, there was no institution in the state capable of managing this defendant, requests were made of 39 other states, all of whom declined to receive this man. After remaining in jail, he was ultimately transferred to the maximum security unit at the state hospital to await some final decision. Additional Problems Further complicating the indeterminate status of this man's criminal charges, the family of the victim of his crime has instituted a civil action against the hospital and treatment authorities for negligence/malpractice in the death. A civil liberties group has threatened action for inadequate treatment. Last, but not least, the treating physicians feel they have nothing in their armamentarium either to make him well enough to stand trial or effectively to predict his future conduct. Analysis of Issues The economic and social costs of the eleven psychiatrists, one psychologist, one priest, and various physician-administrators and psychiatric consultants who have been involved with the meandering course of this one individual's travels through the civil and criminal psychiatric justice systems are tremendous, and there is every possibility that these costs will continue to increase. If this process should lead to a more definitive diagnosis and prognosis and a more "just" disposition of the case, then the costs might be acceptable. Yet the disposition of this case is no more certain now than it was more than two years ago. It is not clear that the patient will ever become "competent to stand trial," in terms of the understanding of that phrase by the examining psychiatrists in the sanity commissions. In fact, the commitment of the patient to the custody of the Director of the Department of Health may very well result in an indefinite incarceration at the state hospital. Therefore, in an attempt to decrease costs and ameliorate the plight of a patient/defendant caught on the mental health merry-go-round, we suggest the following alternative dispositions. Alternate Methodology We start by noting that the criminal justice system is a legal system, with rules governing the legal rights and duties of the individuals traveling in that system. Additionally, the adversarial role of lawyers causes them to go into battle as combatants, striving for their clients' interests. Therefore, the issues of insanity and competency are settled by an adversarial method in the criminal justice system. The use of expert psychiatric testimony to aid the decision maker in settling these issues often results in confusing and usurping the decision-making function of the judge and jury. In addition, the large influx of expert opinion, as in the present case, increases the economic costs of the criminal justice system and embroils psychiatrists and other mental health professionals in a time-consuming, frustrating attempt at evaluation and treatment. A The Bulletin 265 simple way of decreasing these costs, possibly lessening this confusion and giving the decision-making power back to the judge and jury may be to prohibit the use of expert psychiatric-psychological testimony in the courtroom. This choice is buttressed by the basic observation that the criminal law attempts " .... to define socially intolerable conduct and to hold conduct within limits which are reasonably acceptable from the social point of view." Hence, the criminal law is essentially applying societal judgments to individual conduct. By prohibiting psychiatric-psychological judgments from displacing these societal judgments, the essential nature of the criminal justice system may be preserved. Nevertheless, psychiatrists and other mental health professionals do have expertise in the area of mental illness, and to disregard this expertise entirely may arguably be a denial of a fair trial to the defendant. In this case, a perusal of the medical records and the trial transcripts indicate that all experts are essentially agreed that he cannot reasonably assist his counsel at the present time. Therefore, the suggestions which follow do not entirely disregard the contribution of mental health professionals to the criminal justice system. Incompetency A defendant who is legally incompetent probably cannot be constitutionally convicted of a crime. The test for determining competency is whether the defendant " ... has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him." In order to test each defendant against these criteria, courts presently rely on the testimony of expert witnesses. The test for fitness to stand trial is phrased in terms of nonpsychiatric/psychological language. Furthermore, the commitment of defendants to state hospitals for the purpose of making them fit to stand trial often results in indeterminate confinement, which is constitutionally impermissible. A patient/defendant should speedily be given a fair trial, civilly committed as dangerous to himself or others, or released. He should not be allowed to languish in the never-never land of "psychiatric justice." For this reason, we suggest a time limit of at least six months within which to treat a defendant in order to make him competent to stand trial. The role of the expert will be to testify to the presence of mental illness and to fashion an individual program to treat this illness. The expert will be allowed to testify as to the legal competency of the defendant, but laymen who are familiar with the defendant will also be allowed to testify. If it appears that the defendant cannot be treated successfully within a specified period, then the court may proceed to trial with special legal safeguards (e.g., the primary test would be whether all relevant evidence reasonably appears to be present). If this suggestion sounds harsh, it is no more so than the disposition of the amnesic defendant who is brought to trial despite his memory loss. If later, newly discovered evidence may result in a reversal of a previous guilty verdict, the court may reopen the case and order a new trial. If the defendant is legally incompetent to stand trial, and no effective treatment can be elucidated, together with a lack of relevant evidence (e.g., no witnesses), then the charges should be dismissed and the defendant either released or civilly committed as being dangerous to himself or others. While all psychiatrists were in agreement that the defendant in the case presented could not reasonably assist his counsel, not all lay witnesses described the defendant as unable to communicate effectively with others. Of course the lay witnesses were not asked whether or not the defendant was competent to consult with his attorney - but they should have been asked. No treatment plan was offered to make the defendant competent to stand trial. No agreement existed among the psychiatrists as to the diagnosis of the defendant. These factors indicate the confusing and time-consuming ritual, largely ineffective, in present competency hearings. Under our suggestions, the court would have considered all witnesses' testimony as to competency, asked for a diagnosis, asked for a 266 Justice is Not a Psychiatric Term ) treatment plan based on the diagnosis, and once having decided the defendant was competent, proceeded to trial. The next stage would be to determine if special safeguards were needed at trial. Once this question was decided, the defendant should have been placed on trial unless his participation was absolutely essential to a fair trial. In that case, the charges should have been dropped, and a decision on civil commitment should have been made. This approach would have reduced the time and number of psychiatrists involved, focused the attention of the court on the issue of proceeding to trial, and disposed of the defendant in a constitutionally sanctioned method of incarceration, instead of the commitment to the state hospital with no reasonable likelihood of regaining competency. In the interest of conserving time, I shall summarize our recommendations on several other main issues: 1. Insanity - there needs to be explicit clarification of the legal relationship of mens rea and mental illness. The psychiatrist relating diagnoses to criminal responsibility converts the criminal justice system into one of psychiatric justice, allowing for exposure to liabilities which are not scientifically defensible. 2. Prediction of dangerousness - in spite of the disclaimers of the possibility of predicting dangerousness, there are instances where the probabilities are significant and overt and the basis of such predictions should be explicated. Full disclosure of the process by which one reaches a requested conclusion is the best protection against redress for an honest mistake. 3. Relying on sovereign immunity - in the past, we psychiatrists have made a series of significant, unwarranted assumptions, not the least of which has been to assume that if one is performing a function requested by the court, state agency or another type of official administrative body, then he is protected from suit if something happens. The Donaldson case burst that bubble, as did Tarasoff, and now in Hawaii, members of a court-appointed sanity commission are being sued as individuals. We believe that sovereign immunity must be established for classes of psychiatrists who are performing legally sanctioned roles. The lack of clarification of the roles and their qualifications allows for unrealistic discretion and then liability. Corrective Measures 1. Boycott - many psychiatrists feel that we should simply refuse to participate in any legal proceeding as experts, avoid state or institutional employ until adequate funding and facilities are provided, and, by and large, restrict our activities to those areas which are safe, clean and free from ambiguity. At this point in time, this position is undesirable and impossible to implement. 2. Pass the ball back to the courts and legislators - this is not as unreasonable as boycotting, but probably not workable either. Psychiatry was not handed a desirable ball, but it is very unlikely that the originators are going easily to resume the burden of re-stitching and re-inflating it. 3. Collaboration - this obviously is the key word in working toward realistic solutions. Clearly, in no way can psychiatry disentangle itself from these issues. To engage in adversarial maneuvers with well-equipped, powerful challengers is foolhardy at best and suicidal at worst. If a supreme judicial psychiatrist were appointed by a higher power to appoint a sanity commission for the profession as it engages in its current battles, I wonder if we would be found fit to proceed, responsible, dangerous to ourselves and/or others or simply gravely disabled. Collaboration cannot be accomplished without trust, and trust, in this instance, is based on credibility derived by an open and honest expression of professional limitations on both sides. The last question I leave you to ponder is not unlike that of the future of the The Bulletin 267 defendant in the case presented. This man is in psychiatric never-never land, neither criminally prosecuted nor civilly committed, and his future is more ambiguous than it was over two years ago. Psychiatry is in a legal never-never land. Having few, if any rights, but many duties, we find our future significantly more uncertain than at any time in the past. This is not to say that things won't change, but rather to say that we must influence change through a wider understanding of the processes we have backed into or accepted naively. Lawyers develop a special arrogance in the practice of their profession, for in order to pursue a lawsuit, they must become rapid experts in the area under litigation. Therefore, they begin to see themselves as experts in a wide variety of arenas. Rather than denigrate this attitude, psychiatrists could learn from it. We must become experts in the areas that we are litigating. Without such knowledge nothing shall be learned and change will not be for the better. 268 Justice is Not a Psychiatric Term 
work_mr3dxrilhrgsxbhkclax5qmzmu	----	Correspondence "A Theory of Justice" To the Editors: I have followed with great interest the discussion sparked by John Rawls's A Theory of Justice. Most of the debate would seem to hinge upon the difference between an absolute egalitarianism and "equal- ity of opportunity." In his review of the book in Worldview (February) Mr. Alan Emdin almost entirely evades this central question. In one sense his change of pace is refresh- ing, and certainly it is valuable to shave him note, as others have not, that Rawls's idea of how social val- ues are formed is unrealistically dis- tant from such elementary socializ- ing influences as, for example, reli- gion. At the same time, however, it is regrettable that Mr. Emdin fails to focus on Rawls's argument of what "ought to be." . . . Conflicting notions of equality . seem increasingly central to moral reflection in our society. I would hope that Mr. Emdin and others would address themselves to this is- sue as it relates to the guiding imper- atives of our Western moral, specifi- cally religious, traditions. I believe the serious challenge to Rawls is not, as Mr. Emdin would have it, how he visualizes social formation but wheth- er he is right in saying that equality rather than, for example, some Com- mon Law notion of human rights is the linchpin of social justice. Ry fail- ing to come to grips with Rawls's central contention, Emdin's review offers little more than a mildly inter- esting footnote to this important dis- cussion. E. L. Quittner South Bend, Ind. « Alan Emdin Responds: E. L. Quittner poses two criticisms of my review. It is charged that, al- though I make a few interesting points about Rawls's notion of value formation, I neglect crucial recent debate on the relative merits of abso- lute egalitarianism as opposed td equality of opportunity, and also that I do not come to grips with the question of what constitutes the "linchpin of social justice." Apparently Quittner and I travel in different circles, and this, I be- lieve, accounts for our differing views of what discussion of Rawls's work hinges on. Perhaps the virtues of ab- solute equality are a major topic of consideration in the professional journals of academic philosophers. If so, I am reaffirmed in my judg- ment that one of Rawls's strong points is that through the notion of the original position and the consid- eration of institutions he moves be- yond what seems to me sterile debate over piecemeal philosophical abstrac- tions. Exchanges I have been privy to have turned on why Rawls's book, appearing when it did, has been the object of such great attention. In my review I attempted to answer this by pointing to the work as the first effort at the creation of a comprehensive system which both overcomes the impasse positivistic philosophy and economics have created for the study of ethics and also incorporates the rigorous methods of analysis devel- oped by welfare economists. Nearly half of my review is devoted to this task. Nor do I believe that I "fail to come to grips" with the constitution of the "linchpin of social justice." Quittner misinterprets points in my review addressed to exactly these matters. Quittner writes that Rawls's treatment of socialization is far from realistic, and so it is. But in criticiz- ing the Rawlsian view of authority, religion and the Aristotelian "perfec- tionism" of intellectual virtue, I indi- cated my belief that these very things were "linchpins of social jus- tice" and not just the neglected as- pects of value formation Quittner makes them out to be. They are among the "guiding imperatives '•of our Western moral, specifically reli- gious traditions." Indeed, if we are to believe Edward Corwin, they are the background of Anglo-Saxon Com- mon Law as well. A book which treated them adequately would sure- ly be a philosophic work of the first order, and thus would constitute a challenge to "Rawls's argument of what 'ought to b e ' " on the most seri- ous level. My regrets that my re- view is not such a work are at least as strong as Quittner's. Still, I be- lieve that I have raised issues com- pared to which argument over types of equality seems only "a mildly in- teresting footnote." Israel and the West Bank To the Editors: It is easy to say that all Israeli factions seem agreed upon the necessity of "creating some sort of political entity on the West Bank" ("Israeli Politics and the West Bank," Worldview, February), but Stephen Oren seems peculiarly insensitive to the fact that even this "concession" is emphatically on Israeli terms. In fact I doubt that any Israeli official close to the center of power enter- tains the possibility of granting non- Israelis any say in,- for example, the expansion of Jewish settlements in the conquered territories. There is, contrary to Mr. Oren's implication, no readiness to see a truly sovereign state established that would have control over its own relationship to the contorted "foreign policies" with- in the Middle East. In so many essays such as Mr. Oren's one gets the false impression that Israeli leadership is prepared to be "reasonable." What is not men- tioned is that reasonableness is de- fined in terms of modifying prior outrageous policies. One does not have to accuse Israel of being a min- ion of U.S. imperialism to recognize ; the simple power realities by whiqh Israeli leadership perpetuates its op- pression of its neighbors—all, of course, in the name of self-defense. Mr. Oren's admittedly informative article might have been further en- hanced had he placed the West Bank issue into the larger context of the long-term prospects for Israel's sur- vival in an Arab world. Is not the (continued on page 62) 2 
work_mr7ftxxoqzfwxbsskt76muejty	----	SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? Dr. Benjamin Zufiaurre (*) University of Navarra Spain. Dr. Jane Wilkinson Charles Sturt University Australia. El artículo ofrece una lectura sobre el liderazgo escolar en un contexto australiano y anglo americano en el que la profesionalizacion de la direccion escolar, los modelos educativos, los estilos de enseñanza, las formas de trabajo, de colaboracion, de participación…, resumen una responsabilidad compartida en la Comunidad escolar. En este sentido, plantearse el liderazgo desde posicionamientos críticos, desde la inclusión y la justicia social, marca una deriva de otras opciones relacionadas con el ‘new management’, los movimientos eficaces y eficientes, las comunidades de aprendizaje. El liderazgo en este trabajo se contextualiza de forma ilustrativa para lectores hispanos, porque el cómo funcionan las escuelas y la educación contribuye a la construcción personal, cultural, social, científica, emocional, moral, saludable, y civica, de niños/as y jóvenes. Y las escuelas son espacios definitorios de identidades, de oportunidades de aprender, compartir espacios, descubrir, experimentar, cooperar y colaborar. The paper analyses school leadership in an Australian and Anglophone context where professionalism in school management or dealing with educational models, teaching styles, envisaging work, cooperation, participation…, are assumed to be shared in school communities. It is so that to deal with leadership from critical perspectives, from inclusive and social justice perspectives, makes a difference from new management options, from effective and efficient models, learning communities, or others. In this paper, leadership is presented in a context readable for a global Spanish audience. We consider that the ways schools and educational actions are built, contributes to boys and girls, and the youth, personal, social, cultural, scientific, emotional, moral, healthy and civic development. And schools are the spaces to construct identities, to organize the opportunities to learn, share spaces, discover, experiment, work with one another and cooperate. Abstract Resumen (*) Autor para correspondecia: Dr. Benjamin Zufiaurre. Departament Psychology & Pedagogics, UPNA.Spain. Campus Arrosadía 31006 Pamplona, Navarra, Spain. Correo de Contacto: zufiaurre@unavarra.es © 2010, Perspectiva Educacional http://www.perspectivaeducacional.cl RECIBIDO: 27 de junio de 2013 ACEPTADO: 04 de noviembre de 2013. DOI: 10.4151/07189729-Vol.53-Iss.1-Art.192 Palabras clave: Liderazgo / participación / justicia social / diversidades. Key words: Leadership / participation / social justice / diversities. LIDERAZGO ESCOLAR: ¿PODEMOS EVOLUCIONAR DE MODELOS DE GESTIÓN EFICIENTE A MODELOS DE JUSTICIA SOCIAL? Pontificia Universidad Católica de Valparaíso Perspectiva Educacional. Formación de Profesores Enero 2014, Vol. 53(1), Pp. 114-129 SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 115 1. SETTING A CONTEXT FOR SCHOOL LEADERSHIP IN EDUCATION. There are a variety of socially accepted discourses about leadership in education. Those discourses, which hold most influence at a particular time, will in themselves produce knowledge about the role of leaders in various educational settings and societies at different times (Wilkinson, 2008). Discourses are productive in that they produce knowledge about what is known and valued in particular circumstances. They also produce ‘effects of power’, that is, dominant knowledge about leadership. Such knowledge will influence and construct preferred kinds of leadership and leadership values. People who do not fit the ‘mould’ of particular dominant discourses, consequently, may find it more difficult to reach formal positions of authority. After early dominant top – down models (“benevolent dictators” for Thomson, 2004 p.47), followed by participatory models up to the 1960`s and 1970`s (Burns & Stalker, 1961; Fiedler, 1967; French & Bell, 1973), or quoting Gimeno (ed.) et al. (1995, p.139): authoritarian, democratic and “laissez faire” models, a dominant discourse of school management in many Anglophone nations which arose in the late 1980s, and early 1990s, was that of self- management of schools (Hill & Crevola, 2003), (Leithwood & Hallinger, 2002). It was located within a broader regime of neoliberal ideology, which placed an emphasis upon efficiency, accountability, competition and individualism as opposed to conceptions of education as a collective public good. It became a key discourse which was particularly attractive to leaders from the political right who were looking for ways to more economically govern schools and hold them to greater account in countries such as Australia. Those individuals or organisations which put forward an alternative view (Leithwood, Jantzi & Steinbach, 1999), and who expressed concern about the social justice implications of such arrangements, found it more difficult to have their voices heard at the time (Blackmore & Sachs, 2007). As such, the discourse of social justice in schools and educational leadership became a marginalised discourse. Progressively, self managing schools as a discourse lost its prominence, and the social justice implications of funding structural arrangements for schools, began to be recognised. Teacher’s professional development dealing with feminine professions (Zufiaurre, Pellejero, 2000), (Albertin, Zufiaurre, 2006), (Sinclair, 1998) demanded for answers. But what are some of the other ways to think more broadly about leadership in schools, that is, in ways which answer back to previously dominant discourses of self-management, but which suggest possibilities for a more explicit focus upon issues of social justice and equity? One alternative possibility is to focus upon the dispersed practices (Leithwood, Tomlinson, Genge, 1996) across schools that are not explicitly associated with formal leadership roles, that is, dispersed leadership (Lingard, Hayes, Mills & Christie, 2003). For example, a longtitudinal study of improved academic and social practices in schools and classrooms conducted in Queensland, Australia, maintained that if the central purpose of leadership in schools was achieving the best educational outcomes for all students, then teacher-leadership was critically important because ‘individual teacher practices, including both pedagogies and assessment, are the most significant school level variables for enhancing student outcomes’ (Lingard et al. 2003, p.53). Such a finding has important implications. It suggests that ‘teacher leadership becomes important’, because it is teachers who can make the major difference for their students. In order to do so, leadership needs to become dispersed throughout educational organisations (Lingard et al. 2003, p.53, -quoting: Whitaker, 1998). The second implication is that principals SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 116 have a crucial role to perform as educational leaders in schools rather than as managers of a quasi business. Here, effective school leadership becomes ‘that which encourages and disperses best classroom practices across the school and has, at the same time, political and policy effects, while connecting school practices to the local and the global’ (ibid, p.17). To focus upon the management and/or administration of the school is not so important. In this article, we map some key trends in educational leadership in Anglophone nations over the past two decades, in relation to how self management as a discourse has been played out in schools; and in terms of key findings in regard to improving students’ academic practices and the subsequent implications for school leadership. We then examine some alternative constructions of school leadership practice which suggest greater possibilities and openness to notions of equity, collaboration and school community while maintaining a key focus upon improving students’ social as well as academic practices. We contend that a focus upon both aspects of students’ outcomes is a critical component of educational leadership for social justice, and we conclude by looking at some specific examples of how and why leadership for social justice is a critical factor of educational leadership. Central to our article are some key underlying assumptions about the purpose of schooling and leadership. Schools play a critical role in the personal, cultural, social, scientific, emotional, moral, and civic construction of children. It is at school where future identities are defined, and where the 116pportunities to learn, share spaces, discover, experiment and cooperate, can be developed. It is where boys and girls share and develop in an uninterrupted succession of exchanges, assumption of responsibilities, openness to diversity and difference, and learn what is important for the next generation of citizens. Good models of school leadership dispersed throughout the organisation can and do play a critical role in helping children prepare for the future. 2. LEADERSHIP AS MANAGEMENT IN SCHOOLS. Educational leadership as a field describes the social space in which leadership as a practice is carried out in schools, as well as the research, or study, conducted to investigate these practices. In discussing the field of educational leadership, Gunter (2004, p.23) maps the various ways in which terms, such as ‘administration’, ‘management’ and ‘leadership’, historically have been taken up and applied (Gunter, 2004, pp.25-33). She demonstrates that such terms do not arise out of the ‘ether’, but have the material effect of privileging particular sets of institutional and political practices, while silencing or marginalizing others. For example, in the late 1970s onwards, the term ‘management’ of schools was increasingly used in England, Canada, Australia and New Zealand, to capture the purpose of education and characterise the subsequent and identity work of headteachers, or principals as being primarily economic, rather than for education’s sake (Gunter, 2004). It was a challenging time economically, and the harder economic climate forced a scrutiny of the ‘concept and practice of the public sector’, including opening up for debate ‘the purposes of education’, such as whether ‘education served itself, or the economy’ (Gunter, 2004, p.27). Headteachers were to embrace the ‘manager identity’ and management became increasingly seen as a ‘superior form of activity’. In her research, Gunter (ibid) asks whether terms or ‘labels’ such as ‘management’, are ‘“benign” and do no harm … or are “toxic” because they are oppressive in how they shape and ‘represent identities’ of those people who carry out the leadership, administration or SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 117 management work. Gunter’s key point is that we should not accept such terms as taken-for- granted words, but need to examine the meanings that they construct around leadership, the knowledge that this produces about ways of leading or managing, and the impact this may have upon people’s practices. Why it is that head teachers or principals are not called ‘planners … strategists … data analysts …’ (Gunter, 2004, p.22) or ‘leading learners’? How might these changes contribute to labels or constructions of leadership work impact upon which practices are valued/privileged in schools and classrooms and what might be the subsequent impact for students? Depending on the political contexts in history, as the label changes, so does the emphasis upon particular practices. Some practices come to be more valued and others devalued. For example, if the major formal role of leadership in one educational setting was to be relabelled as ‘leading learner’, rather than manager or principal, the more visible and valued practices might shift to the learning occurring in that setting, and the policies and practices that the ‘leading learner’ would need to put into place to encourage such learning to occur. Possibly, other management functions, such as administration of budgets, would continue to be carried out by the ‘leading learner’, or potentially, such functions might be given to someone else to carry out. The labels used to describe leadership practices and leaders confer different types of leadership identity. Pat Thomson, a former Australian school principal (2004, pp.48-49), speculates about the principal ‘identity’ of a leader, and attempts to challenge some of the taken-for-granted notions about leadership embedded in much study of educational leadership. Her discussion of the kinds of governance, or public management theory, that has swept much of the public sector in Anglophone countries, draws upon the private sector, emphasizes competition and privatisation, and leads to greater forms of accountability, for the public sector and its employees. For Thomson (2004, p.47), the model of principal has today changed, from the ‘benevolent dictator with a small budget and significant freedom to engage in school-based curriculum development’. To illustrate her point, she utilises the somewhat tongue-in-cheek, but nonetheless chilling metaphor of the principal and school as a ‘head/body’ machine which is ‘programmed to appear human, but work totally predictably’ (Thomson, 2004, p.48). What Thomson points to are the different kinds of leadership identities produced by the global/national economic and political contexts, which in turn, place particular demands upon the kinds of leadership work, identities and practices that principals or educational leaders must carry out. The principal of a school is not simply a well-oiled machine. Educational institutions and the people that manage/lead them are human, they deal with human beings, but this appears to be a fact that much educational organisational leadership theory ignores. It is also a fact that government policies in regard to education have tended to overlook as a result of the hegemony of new public management policies of the 1980s and 1990’s. 3. SCHOOL EFFECTIVENESS AND SCHOOL IMPROVEMENT MOVEMENTS: DEFINING LEADERSHIP PRACTICES. In relation to improving students learning outcomes and the subsequent role of educational leadership, two key movements which have had a major influence upon the field of educational leadership in the past two decades are the school effectiveness and SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 118 school improvement movements. Their work derives from the ‘school effects research’ in the USA in the 1960s, which inspired major debates about schooling as a force for social change. The fierce division between the two `camps', has meant that the two movements increasingly converge, and the key question which underpins both movements, is how does schooling make a difference to students' educational outcomes. School effectiveness research drew upon large quantitative studies which attempted to examine the `black box' of schools through an examination of input-output models, that is, for example, analysing variables such as school leadership, number of students in a class, etcetera, whilst simultaneously trying to control for variables such as socio-economic background, ethnicity, IQ... Initially the focus was upon schools as a whole unit, but with increasingly sophisticated methods of statistical analyses, researchers began to examine what was actually happening in classrooms. And a key finding has arisen; teachers have a great effect on students' educational outcomes. For example, Sammons & Elliot (2003, p.514), noted that schools ‘accounted for 8 per cent of the achievement differences between students ... but classroom level/teacher effects were substantially larger'. David Hopkins (2003, pp. 509-510) has provided an overview of four aspects of the legacy of the school effectiveness movement: *`the educability of learners': `all students can learn'; *’focus on outcomes'; *'taking responsibility for students' rather than `blaming the victim for the shortcomings of the school itself; and *'attention to consistency throughout the school community'. His research findings attest that more effective schools are `more tightly linked - structurally, symbolically and culturally - than the less effective ones’. Hopkins (2003, p. 507) notes in this respect that `until quite recently, the ability of schools to make a difference to student learning was widely doubted'. Some older studies suggested that `intelligence’, "race" and socioeconomic status', had a far greater influence on student educational outcomes than the particular school the student attended (Sammons and Elliot, 2003, p. 511). However, over the past three decades, a major finding of the school effectiveness research has been that `individual schools can make a difference to student progress' and that `all students can learn' (Hopkins, 2003, p.509, -quoting Murphy, 1992). In contrast to school effectiveness, school improvement, has utilised qualitative studies, rather than quantitative, and has concentrated on the process of how schools can improve, rather than the end product of this improvement. That is how the school effectiveness movement has revealed statistically what qualitative educational researchers have claimed for years, that teachers in classrooms do indeed make a major difference to students' learning. This how or why this difference occurs is something quantitative research is unable to explain. Qualitative research, in the form of case studies of effective teachers, classrooms and schools, is able to `drill down' into the everyday realities of the `messiness' of process to provide insights into how effective teaching (and effective schools) can make a difference. Lezotte (2009, p.3) refers to the correlates of effective schools as entities based on: *instructional leadership; *clear and focused mission; *safe and orderly environment; *climate of high expectations; *frequent monitoring of students progress; *positive home- school relations; *opportunity to learn; and students time on task. Emphasizing the role of the leader in the learning process, he connects with what Reynolds (2001) has referred to as a good leader for effective schools. They both refer to what can be seen in many current systemic initiatives to improve learning outcomes. However, what is not acknowledged in such initiatives is the complexity of challenging environments in schools. SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 119 Sammons, Hillman, & Mortimore (1995, p.8) refer to effective leaders as `firm and purposeful' in leading improvement; 'participative' by sharing leadership and delegating their pedagogic and curriculum knowledge'. Effective leadership, consequently, is a predominant feature of effective schools, but to be an effective leader, to have a formal role of authority, does not explain why an effective leader in one school may no longer be effective in another school. This suggests that studies of effective leadership, and the school improvement literature, need to consider the differing contexts of educational settings, complex as unique sites. Another issue which the leadership effectiveness research overlooks is that leadership is not simply invested within the formal body of the principal/headteacher. The interrelationship of leadership with other factors is important, as headteacher impact on learning outcomes is more likely to be ‘mediated through teachers and the conditions for learning established within the school' (Gunter, 2001, p. 33). As Lingard et al. (2003, p.17) note: Leaders, such as headteachers, principals, directors of adult learning centres, can encourage and disperse best classroom practices across the school, and at the same time mediate… political and policy effects while connect(ing) school practices to the local and the global. And hence, the formal leadership role here is a mediating function in order to assist and support teachers in their work to produce better academic and social outcomes. 4. SCHOOLS AS LEARNING COMMUNITIES. The notion of learning communities marks an important shift in traditional conceptions of leadership (Kilpatrick, Falk, Johns, 2003) with a diminishing of the authority pattern contained in the traditional hierarchical structure of educational organisations. For example, the findings of the Queensland School Reform Longitudinal Study (QSRLS) (VVAA-QSRLS, 2001-2002, p.11), are that ‘the development of professional learning communities within schools is associated with greater use of more productive classroom pedagogies by teachers’. The QSRLS found evidence that ‘enabling leadership can create strong ‘school- based teacher professional learning communities when there is a focus on aligning pedagogy, curriculum and assessment’ (ibid, p. 20). To illustrate these points, Lingard et al. (2003), reflect on three different case studies of schools and leadership roles undertaken as part of the QSRLS. Each case study occurred in different contexts and revealed different leadership habituses/forms. Cassia State School was run by a highly charismatic male Aboriginal principal who had many of the characteristics of transformational leadership and who legitimated and valued Aboriginality within the school in terms of students’ competence and esteem. Here, the leader, created a sense of purpose for the school, students, teachers and parents; changed the social relations within the school and students in particular; built relationships with the community; established a formal management structure, but also ‘worked beyond’ it (p.96); dispersed leadership duties by involving ‘significant community leaders in decision-making “at the top level of the school”’, and set high expectations upon students’ and teachers’ learning. Waratah State School was a different primary school, with a different ethnic clientele and locale, run by a white female principal, who did not lead with a strong vision, in terms of transformational leadership characteristics, but ‘built one with staff based on their curriculum SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 120 interests’. She led ‘from the centre’ and from the ‘pedagogic core of the school’, rather than from the front, using a ‘participatory and consultative approach’ (Lingard et al. 2003, pp.99- 100). Between the two types of leadership, there are gendered differences, a leadership style associated with traditionally masculinist ways of leading, in contrast with a ‘feminised’ collaborative approach. Again, a focus upon sense of purpose, dispersal of leadership, involving others, changes in curriculum and pedagogy, social relations, management structures and strategies, and external relationships, were common elements of the changes brought in the two schools. The third case study examined a secondary school, Tallwood, in which the leadership ‘was dispersed among a team of people including an active woman deputy and several heads of departments and teachers’ (Lingard et al. 2003, p.111). This third case study illustrates some of the differences between primary and secondary schools in terms of location of leadership and the particularly crucial role that deputies and heads of department often assume in secondary schools in terms of leading learning. Interestingly, the positive changes which occurred in the school were led from this dispersed leadership team identified previously: ‘more passive than active’, and not from the principal, and were pedagogically focused, ‘related to curriculum, teaching and learning’ (Lingard et al. 2003, p.117). The three case studies referenced (Lingard et al. 2003, pp. 89-117), provide examples of differing kinds of learning communities established within these schools. Cassia’s appeared to involve an active collaboration between key elements of the Aboriginal community and school management. Waratah had an active teacher learning community led by a teaching principal who gently, but firmly, encouraged teacher growth through modeling of her own practice whilst encouraging ongoing discussion of pedagogy and classroom practices in an active and supportive climate that allowed teachers to take risks and learn from their mistakes. But given that there appears to be emerging evidence that learning communities may be important sources of developing teacher leadership, assisting in the intellectual discourse of what constitutes effective classroom practices and encouraging dispersal of leadership throughout an organizational setting, what exactly is meant by learning communities?, how can they be encouraged?, must they include only teachers?, and what can be the key criticisms of the concept? Professional learning communities, as such, are defined as social groupings of new and/or experienced educators, who come together over time for the purpose of gaining new information, reconsidering previous knowledge and beliefs, and building on their own and others’ ideas and experiences in order to work on a specific agenda intended to improve practice and enhance students’ learning (Cochran-Smith & Lytle, 2003). In this sense, the notion of teacher learning communities is focused on a growing understanding that effective teacher learning is necessary for improvements in students’ educational and social outcomes. Effective teacher learning is consequently: *learner focused, rather than training focused; *ongoing/long-term; *focussed upon student learning; and *site-based (Cochran- Smith & Lytle, 2003, p.2462). However, effective collaboration may be inhibited by: *structural factors, for example, timetables, physical organisation of schools or other educational settings; *cultural factors amongst educators such as habitual behaviours that counteract notions of a learning community; *difficulty of establishing and maintaining functioning communities of learners (Grossman, Wineburg & Woolworth, 2001); *emphasising excessively liberal approaches which foster individualism (Westheimer, 1999); *desire to maintain status quo (McLaughlin SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 121 & Talbert, 2001); and *values and attitudes of teachers, for example, if teachers are racist, the community may simply reinforce stereotypes about students (Lipman, 1998). Teacher learning communities can encourage ongoing effective teacher learning through collaboration with other teachers, students, parents, members of the community, and other professionals, such as members of professional associations, etcetera. On the other hand, criticisms of professional learning communities can include: critiques of community, that is, community is idealized, although not real, and collaboration can become “balkanised”, “comfortable” or “contrived” (Fullan & Hargreaves, 1998). 5. EDUCATIONAL LEADERSHIP FROM CRITICAL PERSPECTIVES. Critical perspectives of leadership draw upon a range of theoretical orientations to provide a critical examination of the knowledge foundations upon which we can construct a different version of leadership theories. It is a`bundle' of theories, rather than just one, and includes feminism, postmodernism and critical policy perspectives. Although coming from a variety of epistemological positions, some common orientations of these views are that the key characteristics of the postmodern world are change and unpredictability, and what we ‘know’ and how we ‘know’ are increasingly being brought into question. According to these, changes in schools and other educational settings are complex and unpredictable, and cannot be theorized through simplistic theories of leadership that do not take into account the broader contexts in which educational settings are located. Critical theorists consequently place: *a focus on the importance of teachers in bringing about improved educational and social outcomes for students; *an emphasis upon more democratic collaborative forms of leadership that encompass parents, students and the broader community, and which challenge the traditional status quo of leadership as enacted in a single (often male, white) individual; *a key emphasis upon pursuing the goals of social justice and equity for students in terms of improving their learning and social outcomes, often with an emancipatory focus that argues for a challenge to traditional power relations both within educational institutions and more broadly within wider society. What is to be taken into account from critical perspectives, is the broader societal, economic and political context, in which schools and educational institutions work, while challenging and questioning the knowledge basis that underpins taken-for-granted `truths' such as what constitutes leadership. Knowledge is situated and partial. There is no such thing as an absolute ‘truth', or grand theory about leadership ‘out there', which can be applied. Instead, knowledge is always partial and limited. A key insight of feminist theorists, for example, is the gendered nature of educational organisations which underpins the unequal power relations operating in schools, universities and others. An example of this persistence of structures is that women tend to be the educators (Zufiaurre, Pellejero, 2000), and males the administrators. The latter role is valued the most, and focused upon most persistently in theories of leadership, despite evidence that it is teacher practices that make the greatest difference to student outcomes (Weaver, Weindling, 1996). A major point that critical theorists have made about leadership as it is currently constructed, is that principals are viewed ‘as managers rather than educators’. Hence, there is a ‘great discursive silence … about pedagogy’ in educational policies, in principals’ actual practices, and in the research upon leadership (Lingard et al. 2003, p.12). Moreover, the context in which educational leadership occurs cannot be ignored. A key question is then: what sort of SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 122 leadership do we require in order to produce better learning and social outcomes for students? This question places a focus upon students’ learning, that is, a shift away from focussing upon the managerial aspects of formal leadership. An example of a critical theorist approach to educational leadership is the QSRLS study noted previously carried out by Lingard et al. (2003). A major finding of the QSRLS study was that developing a leadership habitus/identity, labelled ‘productive leadership’ provided critical links to better learning outcomes for students. They noted that such productive leadership in schools ‘is often associated with placing higher pedagogical demands on teachers, and … this may result in greater use of more productive pedagogies in classrooms’ (VV.AA. – QSRLS 2001-2002 p.12). Importantly, the productive leadership habitus, or identity, was not solely linked to principals or other formal leaders, but paid attention to ways in which leadership is exercised by teachers, students and parents (Lingard et al. 2003, p.14). The emphasis here was upon pedagogy rather than management or change of organizational structures, and upon how such leadership can and should be exercised through a range of stakeholders in education, rather than seeing it as concentrated in an individual formal leader at the ‘head’ of the educational site. Hence, leadership was to focus on: *the alignment of curriculum, pedagogy and assessment; *an emphasis upon the latter as the central activities of the school/educational setting; *vision, purposes and goals of the school; *dispersal of leadership; *social relations within the school; *management structures and strategies; and *relationships outside the field (Lingard et al. 2003, pp.87-88) 6. LEADERSHIP BASED ON SOCIAL JUSTICE AND DEMOCRATIC EDUCATIONAL COMMUNITIES. A key strand of the professional learning community literature is its ‘critical’ approach arguing for democratic educational communities that encompass a range of stakeholders within an educational setting. The research in this area of leadership concerned with social justice examines what exactly constitutes community, how one can encourage a more inclusive community which incorporates a range of interests and, in schools, for example, how parents and students can become an integral part of such a community. The emphasis is upon social justice, inclusiveness and notions of democratic citizenship, so that empowerment of community leading may lead to emancipatory practices. Authors such as Ann Liberman, Amy Stuart Wells, Andy Hargreaves, and Pat Thomson, place the importance of effective leadership as achieving, not just better academic, but social outcomes, and how notion of leadership is underpinned by concepts of social justice, democracy, social empowerment and emancipation through assisting students to become active, thinking citizens. As Lingard et al. (2003, pp. 2-3) contend: Social learning should engage students in a globalized awareness of citizenship and civic participation which embraces difference. Similarly, academic learning should engage students critically and analytically with different knowledges, including those that are being destablized and reconstituted in global times. Additionally, academic learning should enable students to engage with new technologies that are changing workplaces and careers in a knowledge economy. Within this context, the distinction between academic and social becomes somewhat elided as schools become sites of learning and work, and workplaces become sites of work and learning. SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 123 Democratic learning communities place a very different emphasis upon formal educational leadership, in contrast to the emphasis in the 1990s upon management. The referenced example of Cassia Public School where the school leadership actively encouraged the local community to develop a much stronger sense of ownership about the school illustrates this emphasis. Underpinning this leadership work was the school principal’s commitment to social justice for the students and the achievement of education outcomes in both the academic and social areas, so that Aboriginal students could leave school ‘strong and smart’ and be able to take their place within Australian society as active, informed, critical thinkers and citizens. The emphasis upon more democratic, socially just and inclusive notions of educational communities, in schools in particular, has arisen in part as a reaction to the failure of the self- managing schools movement of the 1990s. One of the problems with the notion of the self- managing school as it was operationalised in Anglophone countries, was that the management functions of the system, such as selection of staff, administration of monies in terms of hiring staff, maintenance, repairs, administration of personnel requirements such as long service leave, etcetera, were placed upon schools without adequate preparation, training or resources of personnel, including administration. Moreover, this occurred as part of a wider context in which, ‘management’ of schools (and other educational and public organizations, such as universities, adult education, and training colleges, hospitals etcetera) came to dominate, with debates as to whether leadership was incorporated by management or was merely one aspect of good management. The critical theorists and practitioners argued, that leadership required good management but was not incorporated by it that leadership was the imperative, and that good leadership, in turn, provided the ethical basis upon which good management resides (Blackmore & Sachs, 2007). It is highly debatable whether schools, hospitals, universities, and other public institutions, have either the capacity to deal with the management functions placed upon them from the broader system, or should be asked to take on such roles. In particular, schools with lower socioeconomic backgrounds, suffered because they did not have the personnel or financial resources to manage in the same way as wealthier schools. Evidence of increasing polarization between poorer and wealthier schools, an increase in poverty and divisions between the poorest and wealthiest members of society, and the increasing demands this has placed upon schools, and other educational institutions, has led to an awareness that schools cannot govern alone without systemic support. Moreover, there is mounting evidence that the promise of school based management ‘has largely failed to fulfil its promise to enhance student outcomes’ (Silins & Mulford, 2002, p.567). This realisation has led to a focus upon community again, and in particular, more democratic, socially just models of community that are inclusive and able to build community capacity and resilience, such as that demonstrated in Australia by Cassia, Waratah and Tallwood schools. 7. LEADERSHIP FOR DIVERSITY: AN AUSTRALIAN CONTEXT. The complexity and challenges facing leaders and teachers in diverse schools in which some of our most vulnerable young people are being educated, include: *high numbers of Indigenous/First Nation students; *high numbers of children with specific learning and/or behavioural problems or with disabilities; *children from low socio-economic backgrounds; and multicultural classrooms with children with multiple identities, diverse languages, diverse backgrounds and ways of life, refugees, diasporas, romanis, etecetera. For many SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 124 schools, such diversity remains a problem to overcome, rather than an opportunity to be harnessed. Reyers and Wagstaff (2003, p.4) define diversity as variety and/or difference and conclude that: It is a multidimensional difference weighted in general and particular ways with prejudicial points of view, and sometimes with hatred. So many students make the journey from home to school expecting fair treatment leading to an opportunity to learn, only to find the opposite, shabby treatment from teachers, administrators and fellow students with the door of opportunity to learn more closed than open to them. For these students school and the education they hope to gain there from are not the great equalizer of opportunity as it has been for millions of their predecessors, because they come from diverse backgrounds. In this respect, Mary Kalantzis (cited in Dinham, 2003, p.27) observes: The problem in each case is the distance between the worlds of community experience and the world of institutionalised education and valued knowledge. Despite its undeniable truth, this list is rather too simple. First the list is all too neat. The groups are not separate, they are overlapping, simultaneous, multilayered. Second, the groups are not internally defined, but defined in and through social relationships (racism, sexism, comparatives socio-economic privilege) that often play themselves through in schools and classrooms, and not separate attributes Finally, the group categories are often crude, oversimplifying the differences within groups and between individuals which determine success and failure. The questions which arise when examining different historical approaches to the recognition and teaching of diversity within Australian schools and more broadly are noted as: *What is the impact of student diversity on a school, its leadership and culture?; *is the principal’s leadership role different, more challenging, and more complex in a school with high numbers of students from different backgrounds and who have significantly diverse need?; *what are the implications for the school leadership team in terms of relationships with parents, community, advocacy groups, and government agencies such as Health, Community/Social Services and Juvenile Justice?; *what about accountability and the legal rights of young people especially those with a disability?; and *what about issues such as discrimination and changed community views on homosexuality? (Kalantzis, cited in Dinham, 2003, p.17). In relation to students with intellectual and physical disabilities, Zaretsky, Moreau & Faircloth (2005) found that few school leaders are well prepared to mediate the instructional, ethical, political and legal complexities inherent in the special education processes. Diversity, special education, and the demand of education for all, pose key challenges on educational leadership in contemporary contexts. As expectations increase for more rigorous and demanding academic standards of achievement, for all students, the progress of all must be accounted for. Principals need to be able to address the instructional needs of all students while leading in increasingly diverse yet ostensibly inclusive contexts. Research suggests that many principals lack both the course work and field experience needed to lead improvement efforts that have as their primary focus quality programs and sustained academic success for all students. For example, Di Paola & Walther-Thomas (2003), and SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 125 Zufiaurre & Belletich (2013) from a Spanish context, note how in a context of increasing standardisation of education diverse students can be excluded. To better address these goals, it is argued that school leaders must understand effective instructional practices and interventions that can support sustained student achievement. Research has often indicated that principals who engage in instructional types of leadership are best able to support others in the development and implementation of purposeful interventions that improve student performance. (Blase & Lase, 1998; Fullan, 2002). They note that effective leaders need to have more specialised knowledge and skills about the education of students with diverse needs. They need in this sense: *an in-depth understanding of the legislation that protects the rights of all students (Bowlby Peters & Mackinnon, 2001); *the ability to communicate with the school community about special programs and services and to ensure legal compliance; and *an ability to nurture necessary relationships, partnerships and networks within a context of accountability. This creation of relational networks is particularly critical to the lasting success of special education efforts. In a study of students with physical and intellectual disabilities (Zaretsky et al. 2005) the following were responsibilities principals were expected to assume in relation to providing programs and services: *support of regular special and diverse education teachers in their efforts to provide effective instructional and assessment practices embedded in individualised education programs; *coordination of services; *development of effective communication strategies and protocols among teachers, parents, regional support staff, advocacy groups, government and non government agencies and associations; *establishment of procedures to ensure compliance with provincial/state legislation in special education; and *identification and arrangement of effective in-service training opportunities in the area of special education for all staff. Critics argue that the widespread tendency to place undue credence on various moribund and outmoded forms of biological and social determinism which assume that individual children-whether they be boys or girls-do poorly, or well, at school, because of developmental differences, because they are ‘dumb’ or ‘smart’ or come from ‘disadvantaged’ or ‘advantaged’ backgrounds, can not be sustained anymore. It is a question of schools, school leaders, teachers and institutional involvement to guarantee the right of education, and education for all, in good quality circumstances by law. In this respect, Edmonds (1978, p.33) observed that ‘The belief that family background is the chief cause of student performance ... has the effect of absolving educators of their professional responsibility to be instructionally effective’. In terms of Indigenous Australian students, Edmonds (ibid) referred to a case study of Cherbourg State School, Queensland (Australia) written by the school’s first Aboriginal principal, and outlined a process of change that took place between 1999-2002, in which: *the implications of valuing Aboriginal perspectives about Aboriginal students; *the use of some very basic strategies for achieving some dramatic student outcomes; and *the importance of leadership in creating a school vision, high expectations, valuing Indigenous staff and community members, made major differences to students’ academic and social outcomes. In October (2003), the then New South Wales Minister for Education and Training and Minister for Aboriginal Affairs announced a review of the effectiveness of the provision of education and training for Aboriginal students in New South Wales (Australia). The Review, and subsequent Report, set out to guide the development of a comprehensive state-wide SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 126 approach to improving Aboriginal education. The Review concluded that irrespective of the way performance is measured, the learning outcomes of Aboriginal students at whatever age and stage continue to be at the lower end of the scale. High levels of absenteeism and suspensions were having a significant effect on student achievement, and consequently, the low levels of literacy and numeracy skills possessed by many Aboriginal students, especially in secondary schools, committed these students to failure (Yanigurrs, Ganggurrinyma, Yirringin, (2004). The consequent disengagement with learning results in lower educational achievements which, along with low retention rates, were being translated into limited employment and life choices. Given the growing Aboriginal population and the increased numbers of Aboriginal students in schools in NSW, the Report recommended that these inequities were to be addressed effectively and rapidly. Social dislocation, low self esteem and negative attitudes, are consistent features of Aboriginal children’s experiences in schooling. Strong and urgent action was needed to redress these imbalances and close the gap between the performance of Indigenous and non Indigenous students. This finding led to 71 recommendations. To advance these recommendations, key improvements were required in retention, attendance, and academic performance of Aboriginal students. Critically, these transformations were at least in part dependent on a dispersal of leadership which focussed on: *vision; *operational planning to drive local decision making; *priorities and action; *explicit accountability measures; *shared communication including ensuring that each Aboriginal student had a personalised learning plans developed as a partnership between students, parent and teacher; and *professional learning for teachers. 8. CONCLUSION. In this article, we have ranged across some critical influences within educational leadership practices and scholarship in the past two decades. We have attempted to draw a map of some of the key influences upon school leadership, especially in relation to issues of social justice and diversity. In particular, we have noted the increasing tensions between between caring about diversities and holding schools more accountable for student outcomes through the imposition of quasi business models in schools. We have used examples from Australia to illustrate that and, at the same time, we confirm that the increasing diversity of school communities necessitates that more than ever, more culturally responsive and diverse models of school leadership practices which are responsive to issues of social justice and equity are greatly needed. SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 127 Bibliographic References Albertin, A.M., & Zufiaurre, B. (2006). La Educación Infantil como tarea de Maestras: Claves de Formación y contexto de desarrollo profesional. Barcelona: Octaedro Blackmore, J., & Sachs, J. (2007). Performing and reforming school leaders: Gender, educational restructuring, and organiztional change. Albany, State: University of New York Press. Blase, J., & Lase, J. (1998). Instructional leadership. In How really good principals promote teaching and learning. Thousand Oaks, CA: Corwin Press. Bowlby, B.J., Peters, C., & Mackinnon, M. (2001). An educator’s guide to special education law. Aurora Ontario: Aurora Professional Press. Burns, T., & Stalker, G.M. (1961). The management of innovation. London: Tavistock Press. Cochran-Smith, M., & Lytle, S. L. (2003). Teacher Learning Communities. In J. W. Guthrie (ed.), Encyclopedia of Education (2nd ed., pp. 2461-2469). New York: Macmillan Dinham, S. (2003). (Ed.). Transforming education: Engaging with complexity and diversity. Australian College of Education ACT. DiPaola, M.F., & Walther-Thomas, C. (2003). Principals and special education: the critical role of school leaders (COPPSE Document No IB-7). Gainsville, FL: University of Florida, Center on Personnel Studies in Special Education. Edmonds, R. (1978). A discussion of the literature and issues related to effective schooling. Paper presented to the National Conference on Urban Education, CEMREL, St Louis, US. Fiedler, F.E. (1967). A theory of leadership effectiveness. New York: McGraw-Hill. French, W.L. & Bell, C.H. (1973). Organisational development. New Jersey: Prentice Hall. Fullan, M., & Hargreaves, A. (eds.) (1998). What’s Worth Fighting for in Education? Buckingham: Open University Press Fullan, M. (2002). The change leader. In Educational Leadership, 59 (8) pp. 16-20. Gimeno, J. (ed.), et al. (1995). La dirección de centros. Análisis de tareas. (School management: Task Analysis) Madrid: MEC – CIDE. Grossman, P., Wineburg, S., & Woolworth, S. (2001). Toward a Theory of Teacher Community. In Teachers’ College Record, 103 (6) pp. 942-1012. Gunter, H. (2001). Leaders and Leadership in Education. London: Paul Chapman Publishing, Gunter, H. (2004). Labels and Labelling in the Field of Educational Leadership. In Discourse: studies in the cultural politics of education, 25 (1), March, 2004, pp. 21-41. Hill, P., & Crevola, C. (2003). Organizational Learning. In Davies, B. and West-Burnham, J. (Eds.), Handbook of Educatinal Leadership and Management (pp. 394-403). London: Pearson Longman. Hopkins, D. (2003). Introduction. In Davies, B. and West-Burnham, J. (Eds.), Handbook of Educational Leadership and Management (pp. 507-510). London: Pearson/Longman. Kilpatrick, S., Falk, I., & Johns, S. (2003). Leadership for Dynamic Learning Communities. In Appleton, K., Macpherson, C. & Orr, D. (Eds), International Lifelong Learning Conference Proceedings (pp. 236-241). Conference hosted by Central Queensland University, Yeppoon, Queensland, 16-19 June, 2002. Central Queensland Press, Rockhampton, Queensland. Leithwood, K., Tomlinson, D., & Genge, M. (1996). Transformational School Leadership. In. Leithwood, J. Chapman, D. Corson, P. Hallinger and A. Hart, (eds.), International Handbook of Educational Leadership and Administration Part Two (pp. 800-814). Dordrecht/Boston/London: Kluwer Academic Publishers. Leithwood, K., Jantzi, D. & Steinbach, R. (1999). Changing Leadership, for Changing Times. London: Open University Press. SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 128 Leithwood, K., & Hallinger, P. (eds.) (2002). Second International Handbook of Educational Leadership and Administration, Part Two. Dordrecht/Boston/London: Kluwer Academic Publishers. Lezotte, L.W. (2009). Revolutionary and evolutionary: The effective schools movement (10 pages). Available from: http://ali.apple.com/ali_media/Users/1000059/files/others/lezotte_article.pdf Lingard, B., Hayes, D., Mills, M., & Christie, P. (2003). Leading Learning: Making Hope Practical in Schools. Maidenhead, Philadelphia: Open University Press. Lipman, P. (1998). Race, Class and Power in School Restructuring. Albany: State University of New York. McLaughlin, M. W., & Talbert, J. E. (2001). Professional Communities and the Work of High School Teaching. Chicago: The University of Chicago Press. Reyers, P., & Wagstaff, L. (2003). Leadership, diverse and successful teaching and learning. Paper prepared for the Division A of AERA Task Force for the Development of an Agenda for Future Research on Educational Leadership. Chicago. Reynolds, D. (2001). Effective school leadership: the contributions of school effectiveness research. National College for School Leadership (NCSL) (6 pages). Availe from: http://newportalwww1.ncsl.org.uk/media/603/D7/effective-school-leadership- contributions-of-school-effectiveness-research.pdf Sammons, P., Hillman, J., & Mortimore, P. (1995). Key Characteristics of Effective Schools: A Review of School Effectiveness Research. London: Institute of Education for the Office for Standards in Education. Sammons, P. & Elliot, R. (2003). The underpinnings and contribution of school effectiveness research. In Davies, B. and West-Burnham, J. (Eds.), Handbook of Educational Leadership and Management (pp. 511-521). London: Pearson/Longman. Silins, H., & Mulford, B. (2002 ). Leadership and School Results. In Leithwood, K and Hallinger, P. (eds), Second International Handbook of Educational Leadership and Administration, Part Two (pp. 561-612). Dordrecht/Boston/London: Kluwer Academic Publishers. Sinclair, A. (1998). Doing Leadership Differently: Gender, Power and Sexuality in a Changing Business Culture. Melbourne: University Press, Melbourne. Thomson, P. (2004). Severed Heads and Compliant Bodies? A speculation about principal identities. In Discourse: studies in the cultural politics of education, 25 (1), March, 2004, pp. 43-59. VV.AA.-QSRLS (2001-2002). State of Queensland, Department of Education, 2001, ‘The Queensland School Reform Longitudinal Study: Teachers Summary, in The University of Queensland, EDUC-4019 Educational Issues: New Times, New Teachers, New Debates, Book of Readings, Semesters 1 & 2, 2002, Coordinators, Prof. Allan Luke, & Prof. Robert Lingard. Weaver Hart, A., & Weindling, D. (1996). Developing Successful School Leaders. In K. Leithwood, J. Chapman, D. Corson, P. Hallinger and A. Hart, (eds.), International Handbook of Educational Leadership and Administration, Part One, (pp. 309-336). Dordrecht/Boston/London: Kluwer Academic Publishers. Westheimer, J. (1999). Communities and Consequences: An Inquiry into Ideology and Practice. In Teachers. Professional Work, Education Administration Quarterly, 35 (1) pp. 71-105 Wilkinson, J. (2008). Charles Sturt University, ESA501. Leadership in Education One, Study Guide. Division of Learning and Teaching Services. Albury, Bathurst and Wagga Wagga, New South Wales. SCHOOL LEADERSHIP: IS A SHIFT FROM EFFICIENT MANAGEMENT TO SOCIAL JUSTICE POSSIBLE? 129 Yanigurrs, M., Ganggurrinyma, Y., & Yirringin, G. (2004). The report of the review of Aboriginal education. Freeing the spirit: Dreaming an equal future. NSW Department of Education and Training (276 pages). Available from: https://www.det.nsw.edu.au/media/downloads/reviews/Aboriginaledu/report/aer200 3_04.pdf Zaretsky, L., Moreau, L. & Faircloth, S. (2005). Voices from the field: School leadership in special education. A manuscript submission to the Ontario Principals Council (OPC) July 2005. Available from: http://www.principals.on.ca/cms/print.aspx?cid=5466 Zufiaurre, B., Pellejero, L. (2000). Woman infant school teacher. How does society and how do they considerer their professional role?. In Pedagogy Culture and Society, 8, (2) pp. 207-218. Zufiaurre, B., Belletich, O. (2013). Social, psychological and cultural issues influencing inclusive educational processes: How to read assessment criteria when dealing with culturally diverse students. An analysis based on a Spanish context. In UNIVERSITAS TARRACONENSIS, University Rovira e Virgili. Tarragona (Spain). 8. Artículo Libre 2 0. Portadas 8. Artículo Libre 2 9. Artículo Libre 2 
work_mrfru4p7bvf7tmcby6axlc2s4y	----	Bulletin of the World Health Organization 78 Books & electronic media Bull World Health Organ 2011;89:78 | doi:10.2471/BLT.10.082388 Health and social justice Jennifer Prah Ruger Publisher: Oxford University Press, New York, 2010; ISBN: 978-0199559978; 224 pages, US$ 74 The International Covenant on Eco - nomic, Social and Cultural Rights (IC- ESCR), ratified by 160 States, confers on all human beings the core entitlements essential to human fulfilment, e.g. the rights to work, social security, family life, education and participation in cultural life. Although all are vital, the ICESCR’s guarantee of “the right of everyone to the enjoyment of the highest attainable stan- dard of physical and mental health” may be the most fundamental.1 Why is this so? Health has special meaning to indi- viduals and communities at large. Good health is necessary for human well-being, providing intrinsic value for comfort, contentment and pursuit of the joys of life. But good health does more than that. It is important in allowing individuals to exercise a range of human rights – both civil and political (e.g. physical integrity, personal security, political participation), social and economic (e.g. employment, education and family life). Just as impor- tant, health is necessary for well function- ing societies. If a population does not have a decent level of health, it is very difficult to ensure economic prosperity, political participation, collective security and so forth. Jennifer Prah Ruger is one of a hand- ful of scholars who have been steadfast in defending the right to health and the imperative of reducing unconscionable health inequalities around the globe. Her latest book, Health and social justice, stands, by far, as her most systematic and vital contribution. In this seminal work, Ruger presents a theory of health and social justice, which she calls the “health capability paradigm” – whereby she says that all people should have access to the means to avoid prema- ture death and preventable morbidity. Hers is a vision that incorporates the philosophical, economic and political to make a compelling case that all societies (through public–private partnerships) can design and build effective institutions and systems to achieve health capabilities. Although she focuses (perhaps overly so) on the provision of medical care, Ruger offers a rich explanation of the essential drivers of health, such as sur veillance, preventive measures, clean air, safe drink- ing water and nutritious food. In the book’s foreword, Amartya Sen helpfully distinguishes “good health policy” from “good policy for health”, ex- plaining that it is the latter that is needed for health justice. This supports the World Health Organization’s (WHO’s) “all-of- government” or “health-in-all-policies” approach, recognizing that the health sector is not the only contributor to good health. The WHO Commission on the So- cial Determinants of Health concluded that “the social conditions in which people are born, live and work are the single most important determinants of good health or ill health, of a long and productive life, or a short and miserable one”.2 Ruger does not shy from the im- perative of resource redistribution – from the rich to the poor and the healthy to the sick – offering a cogent pathway on how redistribution can take place in society. The health capability paradigm envi- sions “shared health governance” where researchers, health insurers, governments, health professionals and citizens work together to build consensus around health priorities – including the legislative pro- cess, coalition building, citizen participa- tion and commitment. Adopting a theory of “incompletely theorized agreement”, Ruger argues that constituent members of society do not need to agree on every element to reach consensus about key health goals. Priorities would include child/maternal health, alleviating hunger, and supply of safe drinking water. If society ensures health capabilities, individuals have a corresponding obliga- tion to take personal responsibility, Ruger argues. Individuals have an obligation to use their “health agency” to pursue good health, for example, by eating nutritional foods, engaging in physical activity and complying with medical advice. For this to happen, of course, governments must structure the built environment to make it easy to choose healthy behaviours – such as making fruit and vegetables accessible and affordable. It is good to imagine a world where society maximizes health and closes the health gap; where all constituent mem- bers can build consensus and coalitions; and where individuals accept personal responsibility. Yet, societies often fail to ensure basic survival needs and universal health care. Constituent members often fail to agree on health priorities, regretful- ly acting in their self-interest rather than the common good. And often individuals find it exceptionally hard to eat a nutri- tious diet, exercise and engage in safe sex. Even if achieving health and health equality are exceedingly difficult, it is reassuring to know that there exist rare scholars such as Jennifer Prah Ruger who strive for social justice. This is a book that demands attention and determined ac- tion, for nothing is more important for the world’s population than the passion- ate pursuit of health and social justice. ■ review by Lawrence O Gostina References 1. International Covenant on Economic, Social and Cultural Rights. Geneva: Office of the United Nations High Commissioner for Human Rights; 1976. Available from: http://www2.ohchr.org/ english/law/cescr.htm [accessed 25 November 2010]. 2. Closing the gap in a generation: health equity through action on the social determinants of health. Geneva: World Health Organization; 2008. Available from: http://www.who.int/ social_determinants/thecommission/finalreport/ en/index.html [accessed 25 November 2010]. a O’Neill Institute for National and Global Health Law, Georgetown University, Washington, DC, 20001, United States of America. Correspondence to Lawrence O Gostin (e-mail: gostin@law.georgetown.edu). Books & electronic media Reference 1 Reference 2 Books & electronic media 
work_mssun5qpovgltkoftkuhsyjona	----	This is the author’s version of a work that was submitted/accepted for pub- lication in the following source: McArdle, Felicity, Knight, Linda M., & Stratigos, Tina (2013) Imagining social justice. Contemporary Issues in Early Childhood, 14(4), pp. 357-369. This file was downloaded from: http://eprints.qut.edu.au/68750/ c© Copyright 2013 Symposium Journals Notice: Changes introduced as a result of publishing processes such as copy-editing and formatting may not be reflected in this document. For a definitive version of this work, please refer to the published source: http://dx.doi.org/10.2304/ciec.2013.14.4.357 CORE Metadata, citation and similar papers at core.ac.uk Provided by Queensland University of Technology ePrints Archive https://core.ac.uk/display/19891676?utm_source=pdf&utm_medium=banner&utm_campaign=pdf-decoration-v1 http://eprints.qut.edu.au/view/person/McArdle,_Felicity.html http://eprints.qut.edu.au/view/person/Knight,_Linda.html http://eprints.qut.edu.au/68750/ http://dx.doi.org/10.2304/ciec.2013.14.4.357   1    Special Edition of CIEC (Issue 4, 2013) entitled Social Justice in Early Years Education: Practices and Understandings   Authors: Felicity McArdle, Linda Knight, Tina Stratigos Title: Imagining social justice Abstract: This paper examines how creativity and the arts can assist teachers who teach from a social justice perspective, and how knowledge built through meaningful experiences of difference can make a difference. Just as imagining is central to visual arts practice, so too the capacity to imagine is a necessity for social justice. The authors ask what art can do, and how art can work, to bring about greater understandings and practices around social justice and the early years. A ‘recognitive justice’ (Fraser, 1997, 2000; Cazden, 2012) requires the capacity to be sensitive to the multiple voices that need to be heard, and the ability to imagine how lives might be lived differently. The arts can provide powerful means for thinking social justice, and the experiences described in this paper can have application in addressing social justice in the professional preparation of prospective teachers. Three teacher educators who teach from a social justice perspective apply a collective biography methodology to their stories of art activity. Data were collected from three sites: transcripts, notes and digital images from a salon evening; ethnographic observations, field notes and artefacts from a school classroom; and a/r/tographic data generated in a university art classroom. Data were analysed using Foucault and the conceptual work of other post-structuralist philosophies, to explore how aesthetic and creative artistic activity could excite imaginations and open up multiple possibilities for richer forms of educational outcomes – for teacher educators, their students, and ultimately for young children.     2    Title: Imagining social justice The capacity to imagine is a necessity for social justice — imagining a future self, imagining how we might all live together, imagining different ways of doing and being. Without this capacity, it is difficult for any preservice teachers to be prepared for teaching students from diverse backgrounds. In this contribution to the special edition, the proposal is that art is, and has always been, a crucial methodological and intellectual tool for engaging with social justice issues. This proposal reflects a possible pathway for conceptualising a recognitive element of social justice (Fraser, 1997, 2000; Cazden, 2012). In their framework for exploring cultural pedagogies and Indigenous cultural knowledges in Australia, Luke et. al. (2013) propose that rethinking marginalised cultural knowledges, practices and standpoints can lead to “new representations within previously monocultural and exclusionary knowledge systems” (p. 190). Rather than focussing on belief statements about race, gender, social justice and equity, the focus of the three stories shared in this paper reflects attempts at trying new ways of thinking, and at theorising by doing. For the three researchers, all of whom are teacher educators, arts practice is one of the most effective modes for implementing understandings around social justice in early years education and care. At a time when standards, measures, testing, evidence based, longitudinal studies are fast becoming the ‘only game in town’, this paper examines different readings of social justice practice through a methodology that enables new questions to be asked. There is no single homogenous view of best pedagogical practice for social justice, that can be applied across the diversity of people, places and curriculums. Nevertheless, contemporary approaches to schooling that are increasingly and ‘obsessively measuring and managing the mundane’ (Thomson, Lingard & Wrigley, 2012, p.1) and ‘evidence–based’ practice may be ‘fundamentally undemocratic’ (Vandenbroek, Roets & Roose, 2012, p.537). Standardisation produces high levels of standardness (McWilliam, 2010), denying populations of children their capacities and their capabilities. At the same time, learning about social justice matters through experience may result in individual educators changing their beliefs and ideals, and yet may have little or no impact on the larger structural and institutional injustices experienced every day. Failure in school might be the effect of globalisation, marketisation and the knowledge economy, but this ‘event’ is transformed into a problem of the individual, educators and/ the necessity for parental support (through pedagogization) ( Vandenbroek, 2009). Social problems are systematically translated into problems of the individual, or of education.   3    A collective biography methodology (Davies & Gannon, 2006) was applied as a means to think together and analyse the data generated for this study. Davies’ method is a process whereby a group of researchers worked together on a particular topic, social justice, and drew on ‘their own memories relevant to that topic and through the shared work of telling, listening and writing’ (Davies & Gannon 2006, p.3). The three researchers are members of a group who came together purposefully in order to methodologically seek out and present ‘moments where something else, something surprising, can come to the surface’ (Davies & Gannon 2006, p.2). This method favours critical reflection and shared learning, and addresses some of the main tensions and paradoxes that exist today in studies based on interpretative-critical methods (Suárez-Ortega, 2013). Each of these stories is instructive but not exhaustive. Each of the three stories go some way to illuminate what art can do when it comes to social justice. The three researchers applied collective biography to share, trace and interrogate three stories of learning that collectively offer opportunities for thinking and performing the task of social justice work — the personal, the school classroom, and preparing quality teachers. Collective biography facilitated the researchers’ interrogation of the topic of social justice through ‘storytelling and writing and analysis of those stories’ (Davies & Gannon 2006, p.8). By bringing together a poststructural concern with power relationships and a Deleuzian interest in engendering new synergies and possibilities (Wyatt, Gale, Gannon & Davies, 2011), this methodology led to some new connections on the question of difference. Each story is distinct. Taken together, they illustrate the importance of the cultivation of imagination, and how aesthetic approaches develop intellectual, social, cultural and personal identities (Bates, 2012). Ultimately, the collective process helped to develop motivation for implementing socially just practices. The stories are presented in this paper as partial accounts of arts practices in different contexts: (i) part of a Doctoral study, (ii) a small-scale research project, and (iii) an assignment task with preservice teachers. Through collective biography, the stories were brought together to enable questioning and brainstorming the topic of social justice, and to build understandings and concepts around the topic. Bringing the stories together is not just about context and subjects of the stories, but also forces a visibility ‘in oneself and on oneself [to] become available for inspection’ (Davies & Gannon 2006, p.11). This visibility extends to the ways that, through the work produced by their students and themselves, the teacher educators’ thoughts on social justice are made visible. The question of motivation to ‘do social justice’ in early childhood education and care carries history and emotion. Through this   4    particular methodology, it becomes possible to ‘interrogate the discourses in which we have constituted others and have ourselves been constituted … as moral or immoral beings’ (Davies & Gannon 2006, p.11). For instance, the difference between being an activist, an advocate, and a ‘do-gooder’, proved a strong provocation for this inquiry. In the history of the field of early childhood education and care, there are entrenched traditions around improving the chances of success for all children. Contemporary shifts in social and cultural ways of being call for responsive modes for thinking about teaching and learning, and research — approaches that are inclusive and democratic. Collective biography is a mechanism not for establishing empirical or statistical findings, but ‘local and situated truths …to interrogate the materiality of our lived experience’ (Davies & Gannon 2006, p.4). The three narratives in this paper are partial accounts that emphasise the significance of place, people and communities in ways that can be overlooked in more conventional concepts of ways of knowing and find resonance, indirectly, with Indigenous standpoint theories (Smith, 2005; Nakata, 2007). The question of what constitutes knowledge is particularly pertinent when it comes to matters such as post colonial approaches to learning and understanding. The history of privileging particular languages over ‘others’, the use of certain symbols and symbol systems and ignoring others, and the failure to recognise unfamiliar pastoral practices, are all part of Australia’s sorry history of interaction between colonisers and Indigenous Australians. In this same sense, the focus on recognitive social justice challenges the hierarchy of curriculum and discipline subjects which marginalises art as non-essential, a frill only offered after the ‘work’ is complete. The focus of this paper is on what art can do, how art can work, and the proposal is that art provides the means for ‘the insurrection of subjugated knowledges’ (Foucault 1980, p.81). Through creative activity and imagination, children and educators can place social justice at the heart of the curriculum. The collective biography presented in this paper investigated how artistic activity might open up multiple possibilities for richer forms of educational outcomes – for teacher educators, their students, and ultimately for young children. Each of the three stories in different ways, tested ways in which aesthetic and creative artistic activity could excite imaginations, engage reasoning and emotions, and prompt the projection of self into possible futures (Bates, 2012, p. 68). The stories in this paper are one way of starting a conversation about the ways in which art can do more than represent particular cultural practices. Art can   5    work as teaching and learning and research – in the exchange of information, ideas, symbols, artefacts, performances, and stories. The three stories occurred in extraordinary spaces. Firstly, there was a salon evening, where early childhood academics came together to have their ideas meet and collide, their talk was interrupted, stories overlapped, and thoughts were incomplete or tangential (for more on this, see Sandra & Spayde, 2001). Second, a small team of researchers worked with recently arrived refugee students in a school classroom. The children arrived with disrupted educational backgrounds, and most had experienced and witnessed traumatic social and emotional events. The third space was a university art classroom with undergraduate early childhood education students enrolled in a storytelling elective unit of study. The stories are intensively remembered in relation to poststructural theories. The analysis took ‘the texts of Foucault and other post-structural writers as rhizomatic, as open, in a Deleuzian sense, to the work that we want to do with them’ (Davies & Gannon 2006, p.5). The first story describes an embodied experience with Deleuze and Guattari’s (1987) smooth and striated space and the subversive possibilities of stitchery. The second describes working with disadvantaged young people who have come to Australia in recent history, and explores how artistry prompted the researchers to ‘produce knowledge differently’ (St Pierre, 2000, p.27). Possibilities for more socially just pedagogies emerged from this experience. The third story connects social justice matters with teacher education curriculum and pedagogies, and asks students to explore and rethink issues of diversity and identity through fantasy, metaphor, drawn imagery and sequential narrative. The stories build theory that connects creative activity, imagination, and social justice. They do this by focussing on ways in which claims and identities can be contained in symbols of belonging. First story: Learning, the embodied experience, the personal Tina is currently engaged in a doctoral study, researching with infants (since we are using the collective biography methodology, we use our own names when recounting the personal). This is a story about her own personal learning experience, and how an invitation to imagine, think and learn differently, enabled Tina to arrive at a rich and robust understanding of complex theory. At the same time, this experience led to her producing a new, more satisfying and more confident version of self. In brief, the story is an illustration of how a textile/art process helped a student think her way through Deleuze and Guattari’s (1987) philosophical concept of striated and smooth space. The experience revealed   6    connections between the arts, social justice and education. The implications for young children and the connections we made between Tina’s experience and some related contexts in the experiences of young children in ECEC settings, form the conclusions to Tina’s story in the account provided here in this paper. For a doctoral student, coming to grips with theory is often a major concern. For her research into the ways in which the politics of belonging operate for infants in family day care, Tina had been drawn to work with concepts from the philosophers Gilles Deleuze and Felix Guattari. She had spent 18 months reading, reflecting, discussing and writing about their work, and constantly making connections with her own research project. An invitation to attend a salon on Deleuze, however, opened up the possibility of different ways of experiencing, understanding and sharing theoretical understandings. The purpose of the salon was to promote egalitarian engagement (Author and other, in press) with Deleuzian ideas and theories and attendees included researchers from PhD students to professors and senior academics. The salon was to take place in the evening at a restaurant and each person was asked to share something such as an object, poem or artwork as a prompt for discussion. For someone who is not an artist, this was an exciting but unsettling opportunity. What to present? How would it be received? The salon evening provided the impetus for Tina to engage with theory in an unexpected way: the creation of two objects through crochet. The process of creating, manipulating and sharing these objects provided a deeper understanding of difficult concepts and how they could be put to work. In addition, the creative activity led Tina to recognise the value of other ways of learning and expressing. The language-based experiences she had become used to producing were more generally expected of her in the academy, and now the embodied, tactile and visual proved powerful tools for her thinking and communicating. Leading up to the salon evening Tina had been wrestling with Deleuze and Guattari’s (1987) concepts of smooth and striated space. Deleuze and Guattari used various types of fabric such as woven cloth, felt, patchwork, and in particular, knitting and crochet as models to present various characteristics of smooth and striated space. This struck a chord with Tina, since, on a personal level she had long been interested in handicrafts. As Deleuze and Guattari (1987) point out, woven fabric and knitting create striated spaces made up of vertical and horizontal lines intersecting at right angles, and this space is closed in at the sides with a clear boundary. Next, they look to felting, patchwork and crochet, and how this work   7    involves the creation of smooth spaces that may be prolonged in all directions, and have no predetermined boundaries or orientation. Such theorising then can be applied in reading early childhood education, and thinkers such as Lenz Taguchi (2010) have pointed to striated space associated with classroom routines, pedagogical plans, and observation and assessment protocols which grid and structure the ways in which children and adults behave and interact. Smooth and boundless space might involve the questioning of habitual ways of doing and thinking, in an effort to do or think differently (see Lenz Taguchi, 2010). In Tina’s case, she went on to use smooth and striated space to think about the existing research in relation to her doctoral study with infants. Through her knowledge of the artistry and processes of crochet, Tina was led to delve deeper into the models of striated and smooth space discussed by Deleuze and Guattari (1987) and their discussion of mathematics, particularly Riemannian spaces as a model of the smooth. The starting point for Riemann’s thinking about space was non-Euclidean geometry (Plotnitsky, 2006). In 1997 Taimina (Henderson & Taimina, 2001) discovered it was possible to crochet a form of non-Euclidean geometry, a hyperbolic plane, thereby creating the first durable model of a hyperbolic plane on which the unusual properties of this geometry could be explored in a tactile manner. Prior to this discovery, the hyperbolic plane had already inspired artworks by Escher: the Circle Limit series of woodcuts (Taimina, 2009). Following Taimina’s discovery the Crochet Coral Reef was initiated, a project involving mathematics (hyperbolic geometry), marine biology, handicrafts (crochet) and community art practice (The Institute for Figuring). The Crochet Coral Reef has been exhibited in art and science museums around the world. These connections between Deleuze and Guattari, mathematics, crochet, and striated and smooth space led Tina to create her own crocheted hyperbolic plane, along with a flat, Euclidean plane. She shared both at the Deleuze salon. On reflection, it was clear to Tina that through her engagement with the process of making and then seeing, manipulating and sharing the crochet objects, she came to a different understanding of smooth and striated space than would otherwise have been possible. When we consider knitting, or crochet, as a way of learning that “de-centers pedagogical practices”, then we come to think of bodies as “implicated in the processes of meaning making” (Springgay, 2010, p. 114). This way of learning afforded Tina a deeper connection with complex philosophical and mathematical concepts and made possible the connecting of disparate and unexpected knowledge, experiences and objects.   8    The understanding afforded by the crochet process was, for Tina, an embodied one. For example, Deleuze and Guattari (1987) suggest that space can escape the limits of striation through the smallest of deviations. The process of crocheting the hyperbolic plane in which small deviations, made through a single stitch increase, allowed Tina to see and feel this in action, as the hyperbolic plane grew exponentially and the ruffled edges appeared. The de-centering described by Springgay (2010) is particularly relevant to the salon. For Tina it was a moment of letting go of the ways in which she had been taught that a doctoral student should engage with theory. It meant taking a leap toward the possibility that crochet, something generally associated with grandmothers and booties, was an appropriate thing to do and share in relation to complex philosophical thinking. It also involved a certain loss of control, stepping away from the traditional structures and conventions that prescribe how the various actors should behave when researchers interact in more customary ways (such as PowerPoint slides, lecture style arrangements and agendas). Finally, to return to the introductory remarks in this paper about the imagination and constructions of self, it was not only connections between the philosophical and mathematical concepts that were enabled through the crochet activity. This way of learning also created a connection between what Tina thinks of as her self as doctoral student and her personal self. Tina: When I first became a PhD student it was directly after a period of being a stay at home mother to my two young children. It seemed to me at the time that a schism was created in who I was. There was the personal me and there was the professional me, but at the same time, particularly as I was often working from home, these often came into contact and even conflicted with one another. Bringing crochet to the PhD process was a satisfying experience. I felt as if rather than the two selves being in conflict with each other, they were suddenly harmonious and complementary. For me, crocheting, knitting or sewing is something that I do for the people I love. It is something that I feel connects me with my family, with my mother, my aunty and my grandmother and their ways of creating things for their loved ones. The process of connecting crochet with theory provided a connection between where I come from, where I am and where I am going. Tina’s story is situated particularly within the context of higher education, and can also serve to illustrate two key, interrelated ideas in relation to recognitive social justice, art and early childhood education. The first is the ability of the arts to create a bridge between   9    home and educational settings. Evidence suggests that access and attendance to quality education and care programs is lower for children from marginalised families (Graue, 2006), and the use of creative and artistic pedagogies has the potential to increase participation in quality early childhood services, by attending to the aesthetic components of children’s learning. The overall environment of the setting impacts on children’s attendance and engagement, and it is a powerful support, for young children especially, if they can make connections between home and their education and care setting. This bridge between home and education setting is critical in early childhood contexts (Vandenbroeck, 2007). Tina’s story illustrates a deeper understanding of this point, which leads beyond the clichés of including sofas and artefacts in the décor of the setting. The second is the value of the arts as an alternate way of knowing, learning and expressing. By valuing, indeed encouraging, a connection between Tina’s home crochet practice and her PhD student practice, the salon afforded not only a powerful learning experience, but a greater sense of belonging, of a place within the academic world that she had newly entered. While the bridge between home and school environments is crucial, so too are the less easily identifiable matters of difference — language use, everyday practices and routines, ways of knowing and being. Evidence shows that Indigenous children in Australia are less likely to access early childhood education services. The same is true of children from economically disadvantaged families. However, culturally relevant programs have been shown to improve participation rates (Harrison, Goldfeld, Metcalfe, & Moore, 2012). One aspect of more culturally relevant programs may include educators reconsidering what counts as knowledge in early childhood classrooms (Ballenger, 1991, as cited in Hyland, 2010). Educational practices communicate strong messages about what is and is not valued with enormous consequences for children (Hyland, 2010). By valuing the arts, as an alternate and powerful method of knowing, learning and expressing, as well as a cultural practice, early childhood settings contribute to children’s multiple and complex belongings. Second story: Research, agency, bordercrossings This second story is about art and research and social justice. It is a partial account of a research project that was designed as an inquiry into the needs of children who are from arguably the most disadvantaged group of young people in Australia’s recent history. They are ‘Horn of Africa’ refugee migrant students who arrived in Australia in recent years with   10    disrupted educational backgrounds, and traumatic social and emotional experiences. More detailed accounts of this project can be found elsewhere (see Author & other, 2012), but the focus of this story is the use of art based methodology in the design and conduct of a part of the larger study. The aim was to investigate what these young children (in middle school) needed in order to be able to ‘do school’. The team of researchers, including the school personnel, knew that more was required beyond simply acquiring English language skills and levels of literacy. The teachers had become alarmed at how little these new arrivals seemed to have experienced about being a school student. Power / knowledge relationships (Foucault, 1980) would see them vulnerable as they transitioned to ‘mainstream’ schooling, and diminished their chances for success. Here, the aims of the research commissioned by the school could be said to be driven by a redistributive concept of social justice (Fraser, 2000; Cazden, 2012). The teachers in the school were focussed on equitable distribution of mainstream forms of social, intellectual and educational capital (Luke et al., 2013). With the inclusion of the arts component of the research undertaking, an element of recognitive social justice also came into play. The parallels with everyday issues encountered in ECEC were always noticeable to the researchers. Issues around acquisition of language, knowledge, and social and cultural capital are as relevant to young children’s successes with education, as they are with older children. In the absence of shared language, more traditional, word-centric methods for generating data (e.g. interviews, focus group discussions) were rendered deficit, although not entirely impossible, with the help of interpreters. The researchers introduced an artist to the classroom, and she worked with the children as a group, setting them the task of creating a ‘self-portrait’, through the use of digital photography. First, the artist showed the children examples of other artists’ work, and these included portraits, self-portraits, photography, pop art montages, bricolage, traditional, modernist, European and African artists, and some of the artist’s own personal attempts at representing herself. The children were engaged by the books and artefacts, and attended to the artist’s talk, even though she spoke entirely in English. It was her contention, based on previous experience, that this method had never failed her, and that the children appeared to understand her ‘message’ if not her words. Traces of some of these works were later identified in the works the children produced. Next, the children were each given a digital camera, and the researchers explained that they wanted the children to use the cameras to show them about their lives outside school. Key words were written on the whiteboard, and these included suggestions about what the   11    children might capture on camera (e.g. your home, your family, where you go after school). Before taking the cameras home, the researchers and the artist worked alongside the children, teaching them skills and terms such as: long shots, close-ups, texture, pattern, composition. When the children returned the cameras after the weekend, there was much excitement within the research team, and the feeling that they had been invited to peek through a window into the lives of the children was something that more than one researcher mentioned. Similarly, when the children were assisted in downloading their shots, printing them out, and reassembling into montages and artist books, there were many cheerful exchanges between the children and the research team, interspersed with still and quiet times suggesting deep engagement with the task. The children’s teacher commented on their level of engagement, and her surprise at how well the children were working alongside each other. The invitation to engage in hands on learning through the artform of photography enabled the children to produce versions of themselves, whether real or/and imaginary, for sharing not only with the researchers, but also with each other. One way of ‘reading’ the images was to examine the content for objects and semiotic features that might indicate the children’s accumulating capital. For instance, many children chose to photograph plants and flowers growing in their gardens and in their homes. The literature points to the importance of gardens and flowers to refugees, because they indicate permanence and a level of affluence, previously unavailable to those who have travelled for extended periods of time (Rutter, 2006). In this way, the children might be said to have used art as a language, as a means of expressing, when words were unavailable and/or inadequate. This multiliteracies view of art can and does serve its purpose, but is not the focus of discussion in this paper on social justice. Perhaps the children were doing what Bates (2012) refers to as employing and constructing aestheticised symbols of belonging, of status, of authority, of belief. However, it would be a mistake for a team of ‘white’ researchers to fall into the intellectually arrogant trap (Aveling, 2012) of thinking that we know what it is like to be an ‘African’ student recently arrived in a new country. Indeed, their ‘African-ness’ is a process of becoming that starts ‘out of Africa’ – it is not a given. These young people find themselves constituted as ‘African’ for the first time in their lives after they enter Australia (see Author & other, 2012). Instead of reifying cultures as immutable ‘ways of life’, invariant and unchanging, it is possible to think of the multiple and complex interactions the researchers were part of, and outside of, in the classroom. The children were engaged with a series of endless   12    bordercrossings, represented in images, but possible also in music, drama, literature, and dance. The use of the digital cameras made it possible for the researchers and the children to ‘imagine alternative ways of life, alternative ways of being’ (Bates, 2012, p.63). This was not just about adding to repertoire, but also letting things go, subtracting, ‘giving up some learned ways of being and thinking’ (Bates, 2012, p.63). Here the engagement with arts practices provided a humanising space for the researched and the researchers. The inclusion of the art component into the language learning curriculum afforded opportunities for the children’s agency, shifting them from being the ‘described and imagined’ to the ‘describers and imaginers’ (Aveling, 2012, p.3). Through the children’s creative and imaginative use of digital cameras, new understandings were produced, and the school staff and the researchers gained increased knowledge and representation of the children and their cultural knowledges. The everyday engagement with the children made a difference to how the researchers understood the range of cultural resources and influences that young people were bringing to the classroom. Analysis led to a number of findings and recommendations about the research process and how social justice matters in approaches to pedagogy and research. The use of a methodology that bypassed the barriers created by the lack of a shared ‘language’ meant that the children were not positioned as deficit. They were enabled, at least to some degree, to make visible their knowledge, their feelings, their individual personalities. The shared understandings established between the researchers and the children meant that the encounters were pleasurable for all involved. The capacity to locate some power with the children had the effect of shaping a more reasonable understanding of the children, their needs, and also their interests and strengths. Third story: Teaching, empathy and emotion The third story overlaps, interrupts and disrupts the earlier two stories, and adds to this conversation about social justice by introducing possibilities for using art pedagogically, with a sense of responsibility for teaching a social justice standpoint as part of the process for preparing quality teachers. The salon evening prompted Tina to discover ways in which a particular artform (crochet) worked as a tool for learning and thinking. Linda’s story, the third in our collective biography, takes another view of the arts in relation to social justice. In January 2009, Linda began producing a research-based graphic novel to explore themes of social justice, within a critical theory context. Graphic novels and picture books such as The Arrival (Tan, 2006), Passionate Journey (Masereel, 1919/1987), and The Sun (Masereel, 1919/1990) explore aspects of   13    transience and diaspora. The central character in each novel conveys the challenge of being oblivious to the multiple meanings that spring forth from a new environment. The imagery of the central characters is not created in a vacuum but is read through external referents, which the artist pulls on during construction and the viewer draws on in reception. The image therefore relies upon any number of ‘retranscriptions’ (Venn 2010, p. 325) in order to function and communicate. The characters and events in a graphic novel are not real, but neither are they totally fantastical. They can explore, through fiction and to some critical depth, the possible experiences of others. Linda’s graphic novel project prompted her to initiate a small-scale project with a cohort of undergraduate students who were enrolled in a program of study, preparing to be early childhood educators. The task for them was to use arts-based methods to produce picture books about social justice issues. There were a number of drivers that influenced the design and conduct of the project. The perceptions about childhood, families, identities and education that most pre-service teachers bring with them to their studies are likely to travel with them into their professional careers – if unchallenged. Visual works can provide alternative views about lives and experiences. Traditionally, many cultures have understood the values in image making and storytelling for learning, and Leland & Harste (2005) found that engaging student teachers in studying picture books about refugee and asylum-seekers facilitated ‘conversations about power relationships and how they determine who wins and who loses in any situation’ (p. 65). The arts can connect us with the world of others, and can stimulate connections in all directions. In their work of engaging pre-service teachers in critical thinking, via arts-based researching, Leland and Harste (2005) also noted the value in making ‘a difference in how graduates see themselves and how they judge their ability to succeed’ (p. 60). They learn through the processes, that learning and achieving rely on persistence and resilience, and only they can reflect on what is needed for them to succeed (Davis, 2012). The pre-service early childhood education teachers in Linda’s project were required to each produce a picture book, and their work was assessed across two assignment tasks. For Assignment 1 students researched a social justice issue and developed a storyline around it. For Assignment 2 they were required to illustrate their original story in the style of a children’s picture book. They each created a complete ‘mock-up’ draft book and one completed double-page colour illustration. As the students conducted their research, at the   14    same time and with the students’ consent, Linda had designed a study that ran parallel. Her inquiry was an investigation into whether critical thinking, and in particular, her goal of encouraging the students to challenge existing beliefs and values about social justice in education, could be effected through arts-based educational researching. The project used drawing practices as arts based education research (ABER) methodology. ABER was developed by Elliot Eisner in the early 1990’s as an approach to research that enabled inquiring in the social sciences. In this methodology, imagery is not seen as simply data to be mined for interpretation or analysis. The work of producing the images can function as ‘a method of data analysis as well as a means of data representation’ (Cahnmann-Taylor & Siegesmund 2008, p. 99). This medium is highly appropriate for research and teaching about social justice issues ‘precisely because they verbalize discrimination and then illustrate such practices in logical sequences for younger readers.’ (Horn 2009, p. 92)     15    ABER not only enables critique and an unsettling of the politics of education, it unsettles the politics of research and its dissemination in the academy. But this story is about more than arts based research methods. Linda’s cohort of pre- service teachers were introduced to a process of working that they could in turn take into their classrooms and, at the same time, their engagement with this artform has taught them about social justice issues. This interweaving of agendas is what Irwin and Springgay (2008) conceptualized as a/r/tography, in order ‘to explore the interstitial spaces of art making, researching, and teaching. Process becomes intertextually and multiply located in the context of discursive operations’ (p. 106). A/r/tography presented Linda with opportunities to research her students’ learning and her teaching by multiple means. It is these in-between spaces that reflect the generative nature of the project. Her process enabled a shifting between thoughts, action, reflection, and generation, of theory, information, production, and analysis as the research progressed. As part of the research cycle, data generated from the student’s results fed into the contents of Linda’s graphic novel, via story development and sequence. While graphic novels exist within certain contexts (a politically charged fine art edition or a politically charged children’s picture book), graphic novel production can be seen to exemplify a/r/tographic research as it engages in ‘theory-as-practice-as-process-as- complication’ (Irwin & Springgay, 2008, p. 107). The production of a graphic novel is potentially of great value to contemporary teachers who work in increasingly, culturally- diverse classrooms. The experience of making a picture book enabled the preservice teachers to think about a societal group on an individual basis. This is a significant way to disrupt stereotyping and the dehumanization of vulnerable children. The process of constructing a character, in a particular context, and with a story, forces the picture book creator to think about many issues in great detail. This too works against homogenizing views about particular groups. And this characteristic is especially vital to address in the context of teacher beliefs. Constructing picture books with pre-service teachers was not attached to the good literacy sources/practices for literacy skills agenda. Rather, the intent was to guide the preservice teachers to connect with critical issues in education, and to help develop their empathy skills in thinking about the experiences of others on an individual basis. Through this project, they explored issues of diversity and identity through fantasy, metaphor, drawn   16    imagery and sequential narrative. When teachers create and make a picture book, whether collaboratively or alone, the experience and the skills required can help teachers to deconstruct their assumptions and subsequently their responses to diverse identities and education contexts. Concluding reflections Each of the three accounts that shaped the collective biography in this paper produced certain versions of teaching and learning, and certain thinking about art and its effects, what art can do. In the conclusion to this paper, there is no declaration about what ‘needs to be done’. Art is not the answer to the unequal distribution of wealth and resources. Nevertheless, curriculum and pedagogies that aim to flatten or ignore differences are not fair. Tests that measure narrow skill sets and ways of knowing do an injustice to those who depart from rigid ‘norms’, especially when chances for success are directly impacted by such test scores. There are any number of social issues, beyond the scope of the early years educator to address, that impact on the chances of success for all children. However, one of the essentials for a socially just childhood is access to education and opportunities to learn and develop knowledge. In this paper, we argue that all children learn through and with creative activity and imagination, and that these are not just options, frills, or cultural curiosities — they are requirements in any approach to education and care that aims for high equity, and success for all children. Social justice work can at once require reflection and engagement with the personal, with others, and with the broader community and institutions that shape and are shaped by the work of education. The process of collective biography through reflections on three narratives worked to surface some of the dominant discourses embedded in early childhood learning, research and teaching. By troubling and contesting the ‘constitutive effects of dominant discourses’ (Davies & Gannon 2006, p.5), it became possible to open both the biographers and the discourse ‘to the possibility of change’ (p.5). The capacity to be sensitive to the multiple voices that need to be heard, and the ability to imagine how lives might be lived differently – these are required ingredients in Foucault’s (1980) ‘toolbox’ for thinking. Art is a powerful and eloquent tool for imagining and expressing difference – not only for children, but for early childhood educators, parents and carers, and researchers. The capacity to look at things as if they could be otherwise (Dewey, 1934) is what art can do. Tina’s crocheted model and the children from Africa who produced photomontages of themselves, imagined possibilities through the skills and knowledge brought about by   17    making art. The future teachers in Linda’s class learned about social justice issues, as well as socially just approaches to pedagogy and curriculum. Striving for childhood experiences that respect complex, diverse and uncertain worlds requires aesthetic imagination fundamental to the process of incorporating the new and strange into our consciousness, and fundamental to the negotiation of differences. This is a great challenge. If the current regimes of testing and measuring evident in education and care contexts are to work in ways that do not result in the reinforcing social inequalities, then perhaps it is time to link issues of aesthetic construction of the self with questions of power and social justice. Art may not be the complete answer, but used as it is in this paper as a methodological tool, it can prompt different questions (Abouet, 2007; Delisle, 2010; Satrapi, 2006). This paper is an attempt at articulating socially just educational inquiry that attempted to present a series of multiple realities, illustrated struggles and negotiations with others through the aesthetics of language, symbolism, performance and artifice (Bates 2006). There are strong pressures to measure, classify and ‘treat’ differences, often times as a result of mistaking culture as an explanation rather than explaining culture (Latour, 2005). The recent shift towards critical investigations of education offers opportunity, not only to consider pedagogical practices and their effectiveness in recognising differences, but also to utilize researching techniques that have capacities to authentically engage with differences, but that might be considered non-traditional in the field. The collective processes involved in interrogating issues of social justice required the researchers to wrestle with difficult and complex issues of identity, belonging and inclusion in ways that are unconventional but sophisticated. As a result, new possibilities became available for articulating and explaining the place of art in matters of social justice. The three stories make apparent how artforms and art processes are suited to the task of reimagining alternatives. In this case, the alternatives we were focussed on were the possibilities for better alternatives for young children, their families and the sites that provide them with education and care. Our collective conversations inevitably led us to conclude that a quality learning programme for young children must include everyday opportunities for engagement through some form of art. In addition, our own experiential learning highlighted for us the rich possibilities for using the arts as research method, when inquiring into questions of social justice.   18      19    References Abouet, M. & Oubrerie, C. (Illus.) (2007) Aya. Montreal: Drawn & Quarterly. Aveling, N. (2012). ‘Don’t talk about what you don’t know’: on (not) conducting research with/in Indigenous contexts. Bates, R. (2012). An anarchy of cultures: aesthetics and the changing school. Critical Studies in Education, 53 (1). 59-70. Cahnmann-Taylor, M. (2008). More than words can say, in M. Cahnmann-Taylor & R. Siegesmund (Eds.). Arts-Based Research: Foundations for Practice. New York: Routledge. Cazden, C. (2012). A Framework for social justice in education. International Journal of Educational Psychology, 1(3), 178-198. doi: 10.4471/ijep.2012.11 Davis, J.H. (2012). Why our high schools need the arts. New York: Teachers College Press. Davies, B. & Gannon, S. (2006). Doing collective biography: investigating the production of subjectivity. Maidenhead, Berks: Open University Press. Deleuze, G., & Guattari, F. (1987). A thousand plateaus: Capitalism & schizophrenia. London: The Athlone Press. Delisle, G. (2010). Burma Chronicles. Montreal: Drawn & Quarterly. Dewey, J. (1934). Art as Experience. New York : Minton, Balch & Company. Foucault, M. (1980). Power/Knowledge: Selected Interviews and Other Writings, 1972-1977. New York: Pantheon Books, Random House. Fraser, N. (1997). Justice interruptus: critical reflections on the “postsocialist” condition. New York, NY: Routledge. Fraser, N. (2000). Rethinking recognition. New Left Review, 3 (May- June), 1 -8. Retrieved from http: http://newleftreview.org/II/3/nancy-fraser-rethinking- recognition Freire, P. (1970). Pedagogy of the oppressed. New York: Herder and Herder. Gonick, M., Walsh, S. & Brown, M. (2011). Collective Biography and the Question of Difference. Qualitative Inquiry,17 (8), 741-749.   20    Graue, E. (2006). The answer is readiness - Now what is the question? Early Education & Development, 17(1), 43-56. Harrison, L. J., Goldfeld, S., Metcalfe, E., & Moore, T. (20120). Early learning programs that promote children’s developmental and educational outcomes. Resource sheet no. 15. Closing the Gap Clearninghouse. Australian Government. Australian Institute for Health and Welfare. Australian Institute of Family Studies. Henderson, D. W., & Taimina, D. (2001). Crocheting the hyperbolic plane. Mathematical Intelligencer, 23(2), 17-28. Horn, T. (2009) The graphic novel as a choice of weapons, in S. E. Tabachnick (Ed.). Teaching the Graphic Novel. New York: The Modern Language Association of America. Hyland, N. (2010). Social justice in early childhood classrooms what the research tells us. Young Children, 65(1), 82-87. Irwin, R. L. & Springgay, S. (2008). A/r/tography as practice-based research, in M. Cahnmann-Taylor & R. Siegesmund (Eds.). Arts-Based Research: Foundations for Practice. New York: Routledge. Leland, C. H. & Harste, J. C. (2005). Doing what we want to become: preparing new urban teachers. Urban Education, 40(1), 60-77. Lenz Taguchi, H. (2010). Going beyond the theory/practice divide in early childhood education: Introducing an intra-active pedagogy. London: Routledge. Luke, A., Cazden, C.B., Coopes, R., Klenowski, V., Ladwig, J., Lester, J., Macdonald, S., Phillips, J., Shield, P.G., Theroux, P., Tones, M. J., Villegas, M., & Woods, A. (2013). A summative evaluation of the Stronger Smarter Learning Communities Project. 2013 report. Brisbane/Canberra: Queensland University of Technology and Department of Education, Employment and Workplace Relations. Author (2008) Author and other (2012). Author and other (in press) Latour, B. (2005). Reassembling the social: An introduction to actor-network theory. Oxford, UK: Oxford University Press. McWilliam, E. (2010). High standards or a high standard of standardness? Presentation at SLAQ/IASL Conference, Convention Centre, Brisbane. 30 September.   21    Masereel, F. (1919/1987). Passionate Journey. Bristol, UK: Redstone Press. Masereel, F. (1919/1990). The Sun. Bristol, UK: Redstone Press. Nakata, M. (2007). Disciplining the savages - Savaging the disciplines. Canberra: Aboriginal Studies Press. Plotnitsky, A. (2006). Manifolds: On the concept of space in Riemann and Deleuze. In S. Duffy (Ed.), Virtual mathematics: The logic of difference (pp. 187-208). Manchester: Clinamen Press. Rutter, J. (2006). Refugee Children in the UK. Maidenhead, UK: Open University Press. St. Pierre, E. A. (2000). The Call for Intelligibility in Postmodern Educational Research. Educational Researcher, Vol. 29(5), pp. 25-28. Article Stable URL: http://www.jstor.org.ezp01.library.qut.edu.au/stable/1176324 Sandra, J. N. & Spayde, J. (2001). Salons: The joy of conversation. Gabriola Island, BC: New Society Publishers. Satrapi, M. (2006). Persepolis. London: Jonathan Cape. Smith, L. T. (2005). On tricky ground: Researching the Native in the age of uncertainty. In N. K. Denzin & Y. S. Lincoln (Eds.) The Sage Handbook of Qualitative Research (pp. 85- 108). Thousand Oaks, CA: Sage Publications. Springgay, S. (2010). Knitting as an aesthetic of civic engagement: Re-conceptualizing feminist pedagogy through touch. Feminist Teacher, 20(2), 111-123. Suárez-Ortega, M. (2013). Performance, Reflexivity, and Learning Through Biographical- Narrative Research. Qualitative Inquiry March, 19(3), 189-200. Taimina, D. (2009). Crocheting adventures with hyperbolic planes. Natick, MA: A.K.Peters, Ltd. Tan, S. (2006). The Arrival. Sydney: Lothian. The Institute for Figuring. Hyperbolic crochet coral reef Retrieved 16 January 2013, from http://crochetcoralreef.org/ Thomson, P., Lingard, B. & Wrigley, T. (2012). Ideas for changing educational systems, educational policy and schools. Critical Studies in Education, 53 (1), 1-7. Vandenbroeck, M., Roets, G., & Roose, R. (2012). Why the evidence-based paradigm in   22    early childhood education and care is anything but evident. European Early Childhood Education research Journal, 20 (4), 537-552. Vandenbroeck, M. (2009). “Let’s disagree”. Keynote address, European Early Childhood Education Research Association (EECERA). Strasbourg. Vandenbroeck, M. (2007). Beyond anti-bias education: Changing conceptions of diversity and equity in European early childhood education. European Early Childhood Education Research Journal, 15 (10), 21-35. Venn, C. (2010). Aesthetics, politics, identity: diasporic problematisations. Critical Arts, 24(3), 321-347. Wyatt, J., Gale, K., Gannon, S. & Davies, B. (2011). Complicated Conversation: a Book Series of Curriculum Studies, Vol. 38 (Book 38). Bern: Peter Lang.     23    
work_mszs44pqp5bvzi6nfht7qddj4a	----	PLURALISMUS UND FRIEDEN Penultimate draft - final version published in Critical Review of International Social and Political Philosophy 16.4 (2013), DOI: 10.1080/13698230.2013.810393 Consensus, compromise, justice and legitimacy Enzo Rossi1 Abstract: Could the notion of compromise help us overcoming – or at least negotiating – the frequent tension, in normative political theory, between the realistic desideratum of peaceful coexistence and the idealistic desideratum of justice? That is to say, an analysis of compromise may help us moving beyond the contrast between two widespread contrasting attitudes in contemporary political philosophy: ‘fiat iustitia, pereat mundus’ on the one side, ‘salus populi suprema lex’ on the other side. More specifically, compromise may provide the backbone of a conception of legitimacy that mediates between idealistic (or moralistic) and realistic (or pragmatic) desiderata of political theory, i.e. between the aspiration to peace and the aspiration to justice. In other words, this paper considers whether an account of compromise could feature in a viable realistic conception of political legitimacy, in much the same way in which consensus features in more idealistic conceptions of legitimacy (a move that may be attributed to some realist theorists, especially Bernard Williams). My conclusions, however, are largely sceptical: I argue that grounding legitimacy in any kind of normatively salient agreement does require the trappings of idealistic political philosophy, for better or – in my view – worse. Keywords: consensus; compromise; justice; legitimacy; realism; Bernard Williams Introduction The aim of this paper is to investigate whether the notion of compromise can help us overcoming or at least negotiating the frequent tension, in normative political theory, between the desideratum of peaceful coexistence and the desideratum of a morally optimal set of norms and/or institutions. In other words, an analysis of compromise may help us moving beyond the contrast between two widespread contrasting attitudes in contemporary political philosophy: ‘fiat iustitia, pereat mundus’ on the one side, ‘salus populi suprema lex’ on the other side. More specifically, as I will outline shortly, compromise may provide the backbone of a conception of legitimacy that mediates between the idealistic and the realistic desiderata of political theory, i.e. between the aspiration to justice and the aspiration to peaceful coexistence.1 Of course, compromise is often invoked in political debate, especially in liberal- democratic contexts. It generally gets a mixed press. Conservatives of Burkean or Oakeshottian inclinations appreciate compromise as one of the ways in which organic and gradual political processes can take place safely far removed from the grand ambitions of political rationalism. More communitarian conservatives, though, are suspicious of compromise in so far as it may be seen as an enabler of the dreaded dilution of a community’s 1 Email: enzo.rossi@ gmail.com mailto:enzo.rossi@newport.ac.uk traditional values and practices. Yet of course there are communitarian but multicultural progressives, who see compromise as an opportunity to foster the coexistence of a rainbow of identities and allegiances. Closing the circle, broadly Enlightenment-driven progressives distrust political compromise as unprincipled and morally suspect.2 But if, as political philosophers tend to do, we take a step back from worldly politics, is there still something (theoretically salient) that compromise do for us? This paper considers a sub-set of that question, as it were. It considers whether an account of compromise could help characterising a realistic conception of political legitimacy. To begin clarifying that question, let me briefly qualify two of its terms. Taking some controversial distinctions for granted (for now), we can say that the notion of legitimacy at stake here is not the empirical one of social science; it is the normative one of political theory. Here legitimacy is not about people’s attitudes and beliefs about the exercise of political power, but rather about what reasons there might be to justify the exercise of political power. 3 Likewise, realism is not the realism of (empirical) international relations theory. It is the realism of those normative political theorists who prefer to adjust their prescriptions to the constraints of real politics, rather than the other way around. So the question I consider here is whether an account of legitimacy centred around a notion of compromise should appeal to us if we are interested in theories of legitimacy that are designed to accommodate rather than override what one may loosely call ‘real politics’. 4 More specifically, my main focus here is on whether compromise could be for realist accounts of legitimacy what consensus is for idealistic ones. The paper is structured as follows. I begin by providing some background on the realist trend in recent liberal-democratic theory; then I move on to offer a taxonomy of four types of theories of legitimacy, and explain how one may use the notion of compromise to characterise a realistic voluntaristic theory of legitimacy. In the next section I expand on what exactly compromise might be, and on what problems it might encounter as part of an account of legitimacy. To focus my discussion I concentrate on the realist account of legitimacy recently put forward by Bernard Williams, and show that it may be read as using a notion of compromise as part of its account of legitimacy. The last section summarises the paper’s main arguments and conclusions and briefly sketches some further questions that stem from them. Realism and legitimacy In what sense exactly can we talk about a realist streak in contemporary political theory? 5 Whatever one makes of the familiar narrative according to which Rawls almost single- handedly revived the discipline in the second half of the twentieth century, it is quite clear that his enormous influence made the dominant trend in the anglosphere an idealistic one, driven by pre-political moral commitments – a result that may surprise us if we look at both the modes of political theorising that preceded Rawls and Rawls’ own initial presentation of his view. A distinctive feature of post-Rawlsian idealism is its treatment of political philosophy as a purely normative discipline, whereas most towering figures in the history of political thought just did not distinguish sharply between descriptive and normative theory, implicitly or explicitly acknowledging their interdependence;6 Rawls himself initially framed the argument from the original position as based on two descriptive pillars characteristic of the positivistic and behavioural approach that dominated the study of politics in the 1950s and 1960s: rational choice theory and Kohlbergian moral psychology. He later recanted the rational choice claims, and Kohlbergian developmental psychology is now largely discredited; however Rawls’ success and (arguably) the debate that ensued after the publication of Nozick’s Anarchy, State and Utopia (1974) enabled the normative theory to float free of its claimed descriptive roots, and initiated a decades-long trend of intuitions-driven, idealistic theorising.7 Yet in recent years a contrarian current of reaction against Rawls’ and Dworkin’s ‘high liberalism’ has begun to emerge. Think of the work of theorists like Raymond Geuss (2008), John Gray (2000), John Horton (2010), Glen Newey (2001), and Bernard Williams (2005).8 One might even add to that list the recent work on constitutionalism and democracy by Jeremy Waldron (1999) and Richard Bellamy (2006). We would be hard pressed to find anything more than family resemblances among these theorists’ positions; nonetheless it is worth sketching the traits that enable us to identify the realist ‘family’. 9 Unlike idealism, realism tends to regard politics as a distinctive sphere in need of its own evaluative standards. So realist political philosophy cannot be a branch of applied ethics. Rather, it tries to carve out some space for action-guiding political theory within an analysis of the actual meaning and purpose of politics in a given context. That is to say, it proceeds from an empirically-informed analysis of a society’s political culture and, on that basis, tries to produce the most appropriate political prescriptions – which may well not be those that are morally optimal sub specie aeternitatis. In fact, most realists would deny that we can determine what would count as morally optimal without a prior understanding and interpretation of the relevant political context. That move is motivated by two main arguments: on the one hand there is the overhanging suspicion that much purportedly ethics- driven normative political theory is little more than an expression of ideology. On the other hand, realists observe that, in a sense, the function of politics is precisely to overcome our disagreements about ethics,10 so an ethics-driven conception of normative political theory will just not do. To see where compromise may come into play here, we need to see what a realist approach to legitimacy might look like.11 To answer that question I will introduce a distinction between two approaches to legitimacy, voluntarist and substantive, each of which can then be declined in a realist or in a moralist (idealist) way. We thus have four possible ideal types of accounts of legitimacy: moralist and voluntarist, moralist and substantive, realist and voluntarist, realist and substantive. We have just seen the difference between realism and idealism. Now to complete our conceptual toolbox we need to briefly focus on the voluntarist vs. substantive distinction. Voluntarist accounts of legitimacy maintain that political power is properly exercised in so far as, in some sense, it enjoys the consent of those subjected to it. Typically the consent is hypothetical. This is Rawls’ canonical formulation of this idea: Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason. (1993, p. 137) The point is not that the agreement guarantees the presence of certain desirable features of the polity; rather, it is that the very fact that the political framework can be presented as the focus of an agreement makes it legitimate. So this is a somewhat voluntaristic idea, in so far as the source of legitimacy is the (hypothetical) will of the citizenry rather than some aspect of the polity per se.12 One may of course question whether any account of hypothetical consent, and particularly public justification-based ones such as Rawls’, can have a relevant measure of voluntaristic force. Yet, at least in principle, it does seem plausible to draw a morally significant line between sheer coercion and possible agreement. As Jeremy Waldron puts it, ‘Though a social order not legitimated by actual consent may be unfree, that unfreedom can be mitigated by our recognition that it is at least possible to imagine people giving it their consent.’ (1987, p. 133) Moreover, it is quite clear from Rawls’ discussion of ‘stability for the right reasons’ that political liberalism is grounded in a consensus of sorts, even though its participants are idealised – so the agreement envisaged is not just a way of modelling certain substantive values. This approach has its roots in Locke’s political theory, and through Rawls’ later work (as the contractualism of A Theory of Justice wasn’t really voluntaristic, but rather a way of modelling a conception of fairness) it has become rather dominant in contemporary liberal theory. On the other hand, substantive accounts of legitimacy ground the exercise of political power in the values, goods and virtues embodied, protected or promoted by a given polity. Agreement here has no direct bearing on legitimacy. It may be considered a useful marker of the presence of this or that substantive good, but it does not carry normative force per se. At least in principle, the citizenry could just be wrong about the merits (or otherwise) of a government’s exercise of political power – what confers legitimacy is that government’s ability to secure certain goods and values (autonomy, stability, excellence, say), regardless of the citizenry’s views on the relative importance of those goods and values. This approach to legitimacy has been dominant throughout the history of (western) political thought, even though it has relatively recently been sidelined by the currently dominant currents of liberalism. Yet, to name just its most prominent liberal supporters, it can be found in David Hume, John Stuart Mill, and Joseph Raz. It may be useful to illustrate the four kinds of approaches to legitimacy with a few familiar examples. Idealistic voluntarism is found in Locke and in (some readings of) Rawls’ political liberalism: in both theories legitimacy is based on a consensus the need for which is justified in terms of pre-political moral commitments – a conception of persons as free and equal for Rawls (1993), an account of natural rights for Locke (1980). Idealistic substantivism is exemplified by Mill (1989) and Raz (1986): both theorists justify political coercion by appealing to substantive pre-political moral commitments (well-being and autonomy, respectively). Realist voluntarism is the sort of approach espoused by a theorist like David Gauthier (1986): political order is grounded in an agreement, but the desirability of such an agreement is not dictated by moral considerations, but rather by a game-theoretic equilibrium. Finally, realist substantivism is best illustrated by Hume (1994): his account of justice and legitimacy does not rely on a consensus (hence his critique of Locke) and it is grounded in a naturalistic description of human society.13 We can now turn to the place of compromise. It is probably clear by now why I anticipated that compromise would be an ideal candidate for a central position in a realist voluntarist account of legitimacy. The rough idea is that legitimacy from compromise, like legitimacy from a consensus, is a somewhat voluntaristic project, albeit a more realistic than idealistic one. It is realistic because, as the observation of politics would suggest, the gritty reality of compromise is a more frequent occurrence and easier to obtain than the loftier ideal of a consensus, which seems to rely on an ideal of a citizenry capable of a unity of purposes that has become an unlikely prospect, at least in societies characterized by considerable persistent pluralism. What is more, as Rawls himself recognised, persistent pluralism is a product of the freedoms afforded by the very liberal institutions that idealists tend to favour – a problem that has been described as ‘the paradox of liberal legitimacy’ (Talisse 2005, p. 59). In fact this difficulty in achieving a consensus is one of the main reasons why the turn to realism looks attractive. And the idea is voluntaristic because, if a polity is legitimate because it is the result of a compromise, then we are saying that it is the fact of agreement that confers legitimacy. If the point is just that if compromise promotes certain substantive values (peace and stability, say), then compromise is not really doing the normatively salient work: a polity that secured those same values by other means would be just as legitimate. Even if compromise were, as a matter of fact, the only way to secure those values the point would still stand (in principle). In fact whether compromise brings about desirable values that can produce legitimacy (on a substantivist understanding of legitimacy) is a worthwhile question, but an empirical one. The normative question is what those values are. Here one may object that we could take the very fact of the existence of a compromise as the value that confers legitimacy: compromise as the substantive value that grounds authority. This of course would only work if we accepted something like Daniel Weinstock’s (this volume) characterisation of compromise as a principled solution – a move that May (2005) put forward a strong argument against: crudely, there can be no such thing as principled compromise, because the very idea of compromise entails a moral loss, and so should always be considered a regrettable option. In which case it becomes hard to see how a compromise could ground legitimacy and authority (unless one takes a particularly bleak view of the circumstances of politics). But my argument, of course, does not hang on that controversy: either way, what could be valuable about compromise per se if not the fact that it is an agreement, i.e. that it is a way of tracking the presence of a certain relation between fellow citizens?14 So that would still be a form of voluntarism (albeit one that is introduced from the back door, as it were). Legitimacy through compromise? So far we have seen where compromise might fit in and play a useful role in a theory of legitimacy. To make that sentence less frustratingly hypothetical, though, we will need to start looking more closely at the very idea of compromise. I will not attempt to offer a strict definition of compromise, as it would in any case be too stipulative to be exhaustive, if only because what we need here is not a general account of what one may mean by ‘compromise’, but rather a characterisation of the notion of compromise tailored to the specific question under consideration in this paper. Nonetheless, let us start from one very general and rather platitudinous feature of compromise: compromise affords the avoidance of open conflict. 15 Quite apart from signalling the deeply political appeal of compromise, in so far as one (and especially a realist) may well take politics to be fundamentally concerned with overcoming open violent conflict,16 that leads us towards an observation about what compromise (here) is not: it is not something we individuate on the basis of the process leading up to a result. For instance, sometimes compromise is contrasted to more formal conflict-resolution processes: compromise would be a form of ‘informal justice’ in the sense that it results in dispute-resolution without the need for third-party adjudication (Luban 1985). However the notion of compromise I have in mind here is not that narrow, and the angle from which I intend to identify it is different. I propose to look not at the process or the procedure that leads to the conflict resolution, but rather at the motivation that parties have to accept a settlement. It is an internal rather than external criterion. The reason for this choice is that if we want the very fact of agreement (rather than what it brings about) to be the source of legitimacy (as required by voluntarism) then we need an account of what the agreement means to its parties (which is unrelated to how the agreement came about, e.g. with or without third-party arbitration, special constraints on the bargaining process, and so on). For the fact that I agreed to something to carry any normative force for me I must have agreed for the right reasons and under the right conditions, whatever those might be. To clarify, this internal view of compromise is required if compromise is to count as a binding agreement in a voluntaristic account of legitimacy. So the characterisation is stipulative: if there is a sense in which realistic conceptions of legitimacy can rely on a notion of compromise, then this is what they should mean by ‘compromise’ (that move seems licit insofar as this account of compromise retains a significant amount of proximity to the everyday use of the term). Also note that the sorts of compromises that makes a polity viable involve individuals and groups (i.e. they are interpersonal compromises); but on this account that interpersonal compromise supervenes on intrapersonal compromise. For compromise to be possible individuals – groups at best – have to reconcile themselves with the idea that a certain kind of reason is adequate for them to be willing to go along with a certain settlement. How they come to that conclusion (e.g. bargaining and the like) is irrelevant here. So, what kind of reasons for agreeing (i.e. what kind of motivation) make an agreement a compromise as opposed to a consensus? In a nutshell, a consensus requires some form of endorsement of the terms of the agreement, whereas for a compromise a mere – but genuine – willingness to abide by those terms will suffice. Without venturing into the troubled waters of the philosophy of action, on could intuitively cast the distinction as one between obedience and compliance.17 Those who participate in a consensus recognise that, even in cases where the settlement is not their preferred outcome, they can (indirectly) endorse it because it is the outcome of a process whose aims and procedures they endorse (‘I don’t agree with this rate of taxation, but I endorse it as the outcome of a fair process in which we took part as equal and willing partners, etc.’). A paramount example of this is Rawls’ overlapping consensus, with its accompanying notions of stability, reasonableness, and civility: the agreement Rawls envisages takes place if and only if the parties endorse it, in the sense that they have higher- order reasons (i.e. the commitment to engage with fellow citizens in certain moralised ways) to abide by its terms even if those terms are not their preferred ones. The parties to a compromise, on the other hand, simply believe that for the time being the settlement is the best achievable approximation of their preferred outcome, and thus that they have reason to uphold it, all-things-considered. It is important to note here that they are still choosing the settlement in a normatively salient sense of the term (i.e. not at gunpoint or under the effect of some drug, say), but they do not have the same level of commitment found in a consensus (‘This is the best I can get for now, so I might as well go along with it.’, or ‘I may be able to secure a better/fairer settlement, but the effort is not worth it.’, or simply ‘This is not ideal, but it seems acceptable.’, and so on).18 The point is not that parties to a consensus regard the settlement as ideal whereas parties to a compromise don’t. It is possible and perhaps even not infrequent for the parties to a consensus to see their ideal solution being discarded in favour of another one.19 The point, though, is that the parties to a consensus will (indirectly) endorse the prevailing solution insofar as they will view it as having the same standing as their preferred one, because they see themselves as sharing the same (mostly moral) goals as the party whose solution prevailed – again, the model is Rawls’ overlapping consensus; whereas the parties to a compromise will not. The idea of compromise leaves open how the parties regard other parties’ positions. What matters is just their willingness to comply. So also note that on this account of compromise the same settlement (a settlement envisaging the same solution to a dispute, that is) may or may not be a compromise, depending on the parties’ motivation for accepting it. That way of illustrating the consensus-compromise distinction makes it clear why compromise may be seen as a promising cornerstone for realistic voluntaristic theories of legitimacy: something like the notion of compromise can be introduced to retain the intuitive normative force of voluntarism whilst shedding some of the morally controversial and politically impractical moral baggage that comes with the idea of a consensus (as exemplified by Rawls’ overlapping consensus). The challenge, then, is to show that compromise can indeed reliably deliver voluntaristic normative force. Recently Bernard Williams has defended a realist account of political legitimacy which we may read as being centred around a notion of agreement akin to the conception of compromise outlined above. Williams’ project is explicitly realist. His account of legitimacy stems from the idea that political theory ought to address specifically political questions, rather than act as an idealistic constraint on the exercise of political power, or as an equally idealistic regulatory ideal. The main problem with both of those approaches, which he dubs the ‘structural’ and the ‘enactment’ model respectively, is that they both envisage the application of pre-political moral ideals to the practice of politics (2005, pp. 1-2). They aim to shape politics from the outside, as it were. In contrast to that, the key task of political theory should be to focus on inherently political questions – questions that arise given the specific circumstances of politics, which cannot be usefully subsumed under the supposedly more general umbrella of personal morality. In a way that is reminiscent of Machiavelli, the thought is that political morality is not continuous with (or an extension or application of) personal morality. The moral is not prior to the political; rather, political theory should seek to articulate the sort of morality that is appropriate for politics seen as an independent sphere. The importance of legitimacy is apparent when we consider the sort of questions that, on Williams’ view, should be the primary concern of realist political theory: ‘I identify the “first” political question in Hobbesian terms as the securing of order, protection, safety, trust, and the conditions of cooperation.’ (2005, p. 3) For a state to be legitimate, then, simply is to provide a satisfactory answer to that question. But ‘satisfactory’ does not mean that any arrangement that provides security will ipso facto be legitimate (as in Hobbes 1991). Peace and stability reached through systematic oppression and terror are not really a solution to the initial problem – they do not even qualify as politics. As William Galston puts it in his reading of Williams, ‘the use of political power to torture, terrorize or oppress citizens contradicts the point of politics’ (2010, p. 3). But that is not even to say that anything above that level – anything that does qualify as politics – will pass the test of legitimacy. In fact the test of legitimacy is set by what Williams calls the ‘basic legitimation demand’ (BLD). According to the BLD any solution to the ‘first political question’ must in some sense be acceptable to those subject to it (2005, pp. 4-6). Before unpacking that notion of acceptability (as we shall see shortly there is a good reason for its indeterminacy) it is worth noting how it explains in what sense we can think of Williams’ theory of legitimacy as relying on a voluntaristic notion of compromise. Williams says that ‘the idea of meeting the BLD implies a sense in which the state has to offer a justification of its power to each subject’ (2005, p. 4). This is of course a form of hypothetical voluntarism, yet it is one that appeals to reasons that the subjects actually hold, not that they should or could hold.20 And this account of acceptability is compatible with our account of compromise because it seems to require less than the moral endorsement envisaged by consensus theorists, yet it does not fall into the trap of an ‘everything goes’ account of acceptance. It requires willingness to comply, but it does not condone sheer domination. In other words, realist voluntarism embarks on the arduous task of accounting for coercion – which idealism unsuccessfully tries to eliminate through the idea of a consensus – without condoning raw domination. Now let us return to the issue of acceptability and legitimacy. What is acceptable, Williams argues, changes with the times. It is influenced by a complex set of historical factors. This point has some interesting implications if we consider the sort of problems with liberal idealism (or ‘high liberalism’) that prompted our exploration of realist political theory in the first place. As Williams notes, in modern times the basic legitimation demand by and large requires liberal democracy: ‘Now and around here the BLD together with the historical conditions permit only a liberal solution: other forms of answer are unacceptable’ (2005, p. 8). In other words, given the conditions of modernity (where, for example, individualism is central), even the seemingly undemanding standard of mere acceptability ends up leading to no less than a liberal solution to the ‘first political question’. However, on Williams’ realist view, the foundation of liberalism is this process leading to a historically situated understanding of what constitutes acceptable treatment of those subject to the exercise of political power, not some externally set moral standard or conception of the person. One can connect that point with what Rawls says about the idea of an overlapping consensus being implicit in the public culture of liberal democracies (1993, pp. 43-46). If what Rawls says about the background culture of liberal democracies is correct, and that is a fairly big ‘if’ – but not one that hasn’t found some empirical and theoretical support –,21 then only a liberal consensus will be acceptable. I am not simply saying that only liberal- democratic institutions will be acceptable. I am saying that the very idea of acceptance will be the consensus-based one envisaged by Rawls, rather than a weaker, compromise-based one. 22 In an almost paradoxical twist, the consensus is justified as a compromise. Or, looking at it from the other side (as it were), within (Western) modernity compromise requires a consensus. It just so happens that – if Williams’ (and Rawls’) empirical account of our background culture is correct – in the context of modernity (in the West) we only compromise if we can find a consensus. Now the crucial question is this. Does this twist yield a sounder grounding for consensus- based legitimacy and almost a back-door regrounding of idealism, or does it show that realist voluntarism is hopeless (at least in our context) because it ends up with the same problems as its idealist counterpart? I am inclined to defend the latter line. Recall the problems we identified with consensus: if we take pluralism seriously, then we should give up on the search for a consensus. After all this is precisely one of the sorts of considerations that motivated the turn to realism. But now it seems that even if we deploy the weaker notion of a compromise (the BLD idea) and if Williams is right, our culture forces us to demand a consensus. That is to say, even what is just a compromise ends up needing to be a consensus – which we cannot achieve because of pluralism. Here one might object that, surely, there will be ways to construct a realist voluntarist position other than Williams’. Maybe so; but there is something generalisable in my argument. For instance, Gray (2000) has defended a realist position that seems to me subsumable within Williams’: Gray argues that, in our predicament, our best bet to secure peace and stability is usually to converge on a liberal political order.23 So the general thought is that voluntarism seems tied to a modern, individualistic cultural background – even if we don’t accept Williams’ account of legitimacy, it seems hard to reject his matter-of-fact observation of that connection. And we have seen that so long as we are voluntarists and remain within that culture it is impossible to escape the trappings of political idealism, which are problematic given the pluralism generated by that same culture (a Marxist would call this a contradiction of modern liberal ideology). Idealism is flawed, and its flaws spill over into voluntarist realism. Yet, were we to leave this culture, it wouldn’t be obvious that voluntarism would carry any salient normative force – after all we can think of many past cultures (including European culture of the past) where that was not the case. Either way, the prospects for voluntaristic accounts of legitimacy are somewhere between hopeless and doubtful. Concluding observations Let us now quickly review the main points we have established. We started by canvassing the contrast between idealism and realism in political philosophy. Some liberal idealists, we saw, ground legitimacy in a moralised consensus; but the conditions of pluralism generated by liberal institutions make it hard for such a consensus to be sustainable. Hence the central question of this paper: if we used the more realistic notion of a compromise instead of that of a consensus, could we still salvage the voluntaristic approach to legitimacy that characterises much contemporary liberal political theory? In other words, if we substitute ‘endorsement’ with ‘willingness to comply’, do we get an interesting realist theory of legitimacy that overcomes some of the problems of idealistic theories? I argued that that depends on what we take ‘willingness to comply’ to mean. On some accounts such as Williams’, it may end up meaning the same as consensus. In a way that is an interesting development, in so far as it provides consensus theories with a better foundation than the usual, idealistic one they rely on.24 On the other hand it may seem that, at least in Williams’ version, realism suggests that some of the difficulties (pluralism, seemingly arbitrary exclusion of ‘unreasonable’ views, etc.) encountered by mainstream idealistic theory are here to stay, at least until the background culture changes. The difference, though, is that they are here to stay not as difficulties within philosophical theories of legitimacy, but rather as difficulties with how our culture reconciles what it understands what is politically acceptable with what it can expect to achieve under circumstances of pluralism. The trouble might well be that the mainstream (liberal) understanding of acceptability (and thus of legitimacy) that is still dominant was tailored for much more homogeneous societies than those eventually produced by the political prescriptions that stem from that same conception of legitimacy. 25 That realist critique, of course, is a quasi-sociological or historical description of a cultural predicament, rather than an attack on a normative position driven by moral considerations. Does that show that when one adopts a realist perspective normativity almost entirely drops out of the picture? Some idealists may want to put it that way. The matter seems less straightforward to me. Realism relies on empirical considerations such as the ones offered above, but that is not all there is to it. The critique draws on (an interpretation of) some facts to offer some practice-dependent normative considerations.26 Perhaps the point is that, on the realist approach as in much of the history of Western political philosophy, there is no such thing as a clear-cut normative-descriptive distinction: fruitful normative political theory has to be in dialogue, as it were, with an empirically-grounded understanding of a society’s forms of legitimation.27 That is not to say that political philosophy cannot be action-guiding, let alone criticise the status quo. Rather, it cannot do just that, on pain of losing grip on its object. Acknowledgements Versions of this paper were presented at Manchester Metropolitan University and the University of Hamburg – I am grateful to Peter Jones and Fabian Wendt, respectively, for the speaking invitations, and to both audiences for their comments. I should also like to thank Fabian Wendt and an anonymous referee for this journal for their helpful feedback. Notes Notes on contributor Enzo Rossi holds a PhD in philosophy from the University of St Andrews (UK) and is Senior Research Fellow in Social Philosophy at the University of Wales, Newport. He has published widely on the theoretical foundations of liberalism and on the problems of legitimacy and realism. At the moment he is completing a book on the liberal political tradition (Bloomsbury, 2013). References Beetham, D., 1991. The legitimation of power. Basingstoke: Palgrave Macmillan. Bellamy, R., 1999. Liberalism and pluralism. London: Routledge. Bellamy, R., and Hollis, M., 1999. Consensus, neutrality and compromise. In: R. Bellamy and M. Hollis, eds. Pluralism and liberal neutrality. London: Routledge, 54-78. Bellamy, R., 2006. Constitutionalism and democracy. Aldershot: Ashgate. Cohen, G.A., 2005. Facts and principles. Philosophy & public affairs, 31(3), 211-245. Galston, W.A., 2010. Realism in political theory. European journal of political theory, 9(4), 385-411. Gaus, G., 1996. Justificatory liberalism. Oxford: Oxford University Press. Gaus, G., 2011. The order of public reason. Oxford: Oxford University Press. Gauthier, D., 1986. Morals by agreement. Oxford: Clarendon Press. Geuss, R., 2008. Philosophy and real politics. Princeton, NJ: Princeton University Press. Gray, J., 2000. Two faces of liberalism. Cambridge: Polity Press. Hallowell, J.H., 1944. Compromise as a political ideal. Ethics, 54(3), 157-173. Harris, J., 2010. Hume on the moral obligation to justice. Hume studies, 36(1), 25-50. Hobbes, T., [1651] 1991. Leviathan. Ed. R. Tuck. Cambridge: Cambridge University Press. Horton, J., 2010. Realism, liberal moralism and a political theory of modus vivendi. European journal of political theory, 9(4), 431-448. Hume, D., [1748] 1994. Of the original contract. In: D. Hume. Political writings. Eds. S. Warner and D. Livingston. London: Hackett, 164-181. Klosko, G., 2000. Democratic procedures and liberal consensus. Oxford: Oxford University Press. Locke, J., [1690] 1980. Second treatise of government. Ed. C.B. Macpherson. Indianapolis: Hackett. Luban, D., 1985. Bargaining and compromise: recent work on negotiation and informal justice. Philosophy & public affairs, 14(4), 397-416. May, S.C., 2005. Principled compromise and the abortion controversy. Philosophy & public affairs, 33(4), 317-348. Mill, J.S., [1859] 1989. On liberty. In: J.S. Mill. On liberty and other writings. Ed. S. Collini. Cambridge: Cambridge University Press. Neal, P., 1993. Vulgar liberalism. Political theory, 21(4), 623-642. Newey, G., 2001. After politics. London: Palgrave Macmillan. Nozick, R., 1974. Anarchy, state, and utopia. New York: Basic Books. Rawls, J., 1993. Political liberalism. New York: Columbia University Press. Raz, J., 1986. The morality of freedom. Oxford: Clarendon Press. Rossi, E., 2009. The Exemption That Confirms the Rule: Reflections on Proceduralism and the UK Hybrid Embryos Controversy, Res Publica 15(3), 237-50. Rossi, E., 2010a. Reality and imagination in political theory and practice: on Raymond Geuss's realism. European journal of political theory, 9(4), 504–512. Rossi, E., 2010b. Modus vivendi, consensus, and (realist) liberal legitimacy. Public reason, 2(2): 21-39. Rossi, E., 2012. Justice, legitimacy and (normative) authority for political realists. Critical review of social and international political philosophy, 15(2), 149-164. Rossi, E., 2013. Legitimacy, democracy and public justification: Rawls' political liberalism versus Gaus' justificatory liberalism, Res Publica. DOI: 10.1007/s11158-013-9223-9 Sangiovanni, A., 2008. Justice and the priority of politics to morality. Journal of political philosophy, 16(2), 137-164. Sevel, M., 2010. Essays on authority. Thesis (PhD). Department of Philosophy, University of Texas at Austin. Sleat, M., 2010. Bernard Williams and the possibility of a realist political theory. European journal of political theory, 9(4), 485-503. Talisse, R., 2005. Liberalism, pluralism, and political justification. The Harvard review of philosophy, 13(2), 57-72. Waldron, J., 1987. Theoretical foundations of liberalism. The philosophical quarterly, 37(147), 127-150. Waldron, J., 1999. The dignity of legislation. Cambridge: Cambridge University Press. Williams, B., 2005. Realism and moralism in political theory. In: B. Williams. In the beginning was the deed. Ed. G. Hawthorn. Princeton: Princeton University Press, 1-17. 1 . John Gray (2000) has put forward the most articulate defense of the centrality of peace – and compromise as a means to peace – within the emerging liberal realist tradition. Roughly, the idea is to view liberalism not as legitimated by the substantive values it instantiates, but rather by its ability to arbitrate conflicts and create compromises between divergent substantive values. Peace itself, then, is not a super-value that confers legitimacy on the liberal order, but rather valued insofar as it indicates that a relatively stable compromise has been reached. The argument I offer here, although focused primarily on Bernard Williams’ views, may also be read as a critical reaction to this reading of Gray’s work. I focus on Williams because I take his view to be the most fully worked out one. 2 . This brief overview contrasts with Richard Bellamy and Martin Hollis’s, who see compromise as traditionally conservative territory (1999, p. 55-56). Simon Cǎbulea May (2005), on the other hand, has a more nuanced take on this subject: compromise has no political colour per se, however it is necessarily unprincipled. 3 . So, of course, the basic distinction still stands even though one may argue the fact that the people believe political power to be legitimate in itself constitutes a reason that justifies the exercise of that power. Relatedly, David Beetham (1991) has convincingly shown that empirical and normative accounts of legitimacy are not easily separable. 4 . See Geuss 2007, Rossi 2010a. 5 . It is also worth noting that most realists refer to the mainstream mode of contemporary political philosophy as ‘moralism’, whereas here I mostly use the term ‘idealism’, which seems less contentious. 6 . However an idealistic or moralistic reaction against this approach existed well before Rawls. For an example of work of this kind specifically on compromise see Hallowell 1944. For a recent discussion of how descriptive and normative elements may be integrated see Sangiovanni 2008. The opposite, arch- idealist view is exemplified by Cohen 2005. 7 . This trend may owe more to the sociology of the political theory profession than to its intrinsic merits – a point that, of course, betrays my power-centric and realist perspective. 8 . Also note that theorists such as John Dunn (2000) and Patrick Neal (1993) have been arguing along similar lines for much longer. 9 . William Galston (2010) portrayed this emerging family of theories along similar lines. 10 . I use the word ‘ethics’ to range over the concepts of justice and the good. I have discussed the relationship between justice and teleological values in Rossi 2012. 11 . I have defended the priority of legitimacy over justice (and, relatedly, the superiority of realism over idealism) in Rossi 2012. 12 . Here one may note that Rawls envisages the overlapping consensus as an actual agreement. But then it becomes an agreement between a sub-set of the citizenry of variable and questionable size – the reasonable citizens – picked out by reference to a fixed set of substantive values, namely their commitment to upholding fair terms of cooperation among free and equal members of a liberal democracy. In other words, the agreement is hypothetical relative to the whole of the actual citizenry. In Rossi (forthcoming) I elaborate on this point and, by contrasting Rawls’ views with those of Gerald Gaus (1996, 2011), I put forward a modal taxonomy of different kinds of hypothetical agreement (the crucial distinction being the one between possible worlds where the relevant agents can or cannot recognise themselves in their consenting counterparts). 13 . James Harris (2010) has convincingly shown how Hume’s account of justice is not tied to the virtue ethics that characterizes his moral philosophy. 14 . In fact this relational aspect is the main distinguishing feature of voluntarism: the sharpest way to bring out the distinction between voluntarism and substantivism is to point out the gap between the thought that political power is grounded insofar as it enables the protection and promotion of certain goods and the thought that the primary purpose of politics is rather to create a framework that enables certain relations between individuals (e.g. reciprocal independence). 15 . Leave aside, for now, the complicated question of what exactly should count as conflict. 16 . Think of the classic contractualist account of politics as the way to leave the state of nature. 17 . For an attempt to work out the action-theoretic basis of this distinction see Sevel 2010, Chs. 2 and 3. 18 . So this account of compromise rules out ‘everything goes’ theories of modus vivendi, Hobbesian contractarianism like Gauthier’s (1986), and the like. I discussed the (lack of) voluntaristic appeal of modus vivendi (as opposed to Rawlsian consensus) in Rossi 2010b. 19 . For instance, Rawls (1993) famously stated that there is a range of conceptions of justice that could be the focus of an overlapping consensus, and that his own preferred conception, justice as fairness, does not have privileged status in that range. 20 . Galston (2010) and Sleat (2010) also pointed out the search for agreement in Williams’ realism. 21 . George Klosko (2000) conducted empirical research showing something akin to a consensus on the values of constitutional democracy in American public culture. Andrea Sangiovanni (2008) has argued that the most plausible interpretation of Rawls’ political liberalism stresses the practice-dependence of legitimate conceptions of justice. 22 . In Rossi 2010b I have argued that there is no viable middle ground between Rawlsian consensus and Hobbesian ‘anything goes’ agreement – the point being that the former is too moralistic, and the latter too coercive to be of interest to those wanting to ground legitimacy in some form of voluntariness. 23 . John Horton (2010) may also be seen as someone who takes such as position; however it seems to me that he rather wishes to defend a voluntaristic account of modus vivendi as a foundation for liberalism (in some context) – a view I have argued against in Rossi 2010b. 24 . Though it has been argued that this brings realists too close to idealism (Sleat 2010, Gledhill 2011). 25 . Rawls famously pointed out how pluralism, reasonable and otherwise, is the inevitable product of life under free institutions. 26 . On practice-dependence see Sangiovanni 2008 and my own take on that approach in Rossi 2012. 27 . As noted earlier, David Beetham (1991) has convicingly argued that any good account of legitimacy needs to incorporate both descriptive and normative elements: crudely, moral considerations cannot float free of an actual system of norms and of actual beliefs, pace both Weber’s purely descriptive account of legitimation and the fact-independent moralism of much contemporary political philosophy. 
work_mwp6ay2bljb5njnlji7smvydru	----	04_SDP19643.indd M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) 208–214 © 2018 WIT Press, www.witpress.com ISSN: 1743-7601 (paper format), ISSN: 1743-761X (online), http://www.witpress.com/journals DOI: 10.2495/SDP-V13-N2-208-214 SUSTAINABLE DEVELOPMENT REQUIRES ENVIRONMENTAL JUSTICE MICHAEL J. ELLERBROCK Professor & Undergraduate Director, Agricultural & Applied Economics, Virginia Tech, USA. ABSTRACT As an appointed member of the U.S. Environmental Protection Agency’s National Environmental Justice Advisory Council (NEJAC), Ellerbrock meets with local stakeholders and participates in pub- lic hearings across the nation in which poor and minority communities suffer disproportionally from chemical exposure, pollution incidents and aesthetic degradation. In this paper, we begin by looking at what three core disciplines – economics, ecology and ecumenism – have in common. Often perceived today as philosophic enemies, the disciplines have common roots in the ancient Greek notion of a household – oikos. Integrating the roots of economics, ecology and ecumenism reveals a tri-partite household that must be managed in harmony for it to be sustainable. In light of violent conflicts (historical and current) over economic resources, political worldviews and religious values, ecumen- ism is a critical factor aimed at mutual understanding, respect and collaboration among diverse groups. Locally and globally, true peace is more than the absence of conflict/war. A key component of qual- ity of life, Environmental Justice (EJ) is a necessary, though not sufficient, condition for sustainable development. Keywords: consensus-based solutions, economic ethics, ecumenism, environmental justice, environ- mental racism, oikos household, success stories, sustainable development, U.S. EPA. 1 INTRODUCTION In this paper, let’s explore what three core disciplines – economics, ecology and ecumenism – have in common regarding sustainable development. Often perceived today as philosophic enemies, the disciplines share roots in the ancient Greek notion of a household – oikos [1, 2]. In their etymological meanings, the disciplines were originally defined as: • Economics – study of the management of the household’s financial resources; • Ecology – study of the management of the household’s physical resources; • Ecumenism – study of the management of the household’s moral, ethical and spiritual resources amidst a plurality of values. A good listener, an ecumenical person is a synthe- sizer who seeks consensus among various perspectives and traditions. The household is defined, not by the area of central overlap but rather, by the entire biosphere within which economics, ecology, and ecumenism – indeed all disciplines – operate (Fig. 1). There is only one household, though we as individuals are personally responsible for only parts of it. However, since all dimensions of the household are connected via the Natural, Social and Philosophic Sciences, we can legitimately place ethical demands upon those indi- viduals and institutions responsible for the rest of the household. The choice of definitions we use can set the stage for conflict. Some scholars argue that the disciplines are hopelessly split because they serve or have adopted competing goals: econom- ics – human welfare maximization, ecology – species’ survival, ecumenism – moral freedom [2]. Other scholars are more optimistic [3, 4]. If we are to integrate the best insights each discipline has to offer about life on earth, then recovery of the notion of a household may serve as a common metaphor for fruitful conversation [5]. M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) 209 Like a three-legged stool, the household is sustainable only if all three dimensions are managed in harmony. We have to cost-effectively pay the bills. We have to be wise stewards of the physical resources. We have to get along with each other, amidst a plurality of values. This holistic paradigm emphasizes recognition of the complex interrelationships at play throughout the household, cooperation in meeting the needs of different members of the household, and tolerance of diverse views within the household. The Philosophic Sciences study human values via art, ecumenism, literature, music, philosophy, poetry, psychology, theater, theology, et al. In light of violent conflicts (historical and current) over economic resources, political worldviews and religious values, ecumenism is a critical factor aimed at mutual understanding, respect and collaboration among diverse groups. Locally and globally, true peace is more than the absence of conflict/war. Undermining ecumenism, our relationships are not stable if people feel marginalized, under-valued, exploited for others’ gain, forced to live or work in dangerous or polluted places. A key component of quality of life, Environmental Justice (EJ) is a necessary, though not sufficient, condition for sustainable development. 2 DIMENSIONS OF ENVIRONMENTAL JUSTICE Environmental Justice (EJ) involves several key factors: control over one’s local destiny and quality of life; capacity to be engaged in the distribution of resources; equitable flow of power and political mobilization; institutional context and cultures; environmental decision-making processes and outcomes; and meaningful involvement. In terms of environmental benefits and costs, EJ includes consideration of the relative distribution of those outcomes. • Racism – data show race to be an ‘independent predictor’ distinct from social class, cul- tural values, or other factors regarding lead poisoning in children [6], exposure to air Figure 1: A Holistic View of the Household. 210 M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) pollution [7–10], contaminated fish consumption [11], location near municipal landfills and incinerators [12, 13] and abandoned toxic waste dumps [14]. In other words, at all levels of income (not only poor), black and brown citizens in many regions are dispropor- tionately exposed to environmental hazards, toxic substances and aesthetic degradation relative to white citizens. Hence, the legitimate attainment of wealth cannot fully explain white Americans’ higher quality of life. • EJ Movement – parallels other U.S. historical movements: Women’s, Native Americans,’ Labor, Civil Rights, Environmental; the movement has been catalyzed by academic research. • Decreasing Health Care Access – double whammy effect on the poor: higher incidence of exposure and lesser affordability of medical insurance and services. • Citizens’ Ability to ‘Vote with their Feet’ – personal mobility is primarily a function of economic wealth, educational level, social networks, and professional status; thus it is a copout to blame the poor victims who lack the capacity to easily move to a better town and start life over for their family. • Segregation in the U.S. – a post-1900 phenomenon, prior to Civil War in 1860’s, most U.S. cities were integrated; thus it is a copout to say that urban segregation is natural and has always been with us [15]. • Subsidiarity – a principle of social ethics that those who have to live with the consequenc- es of a decision should get to make the decision, or at least be meaningfully involved in the decision-making process; to have primary control over one’s lifestyle; counters white privilege; a principle advocated by many religions and social ethicists. • Democracy – though the fairest form of government, it is not perfect. In terms of influenc- ing neighborhood quality, minorities often experience democracy as ‘three wolves and a lamb voting on lunch.’ Majority rule speaks for itself when elected officials decide the location of the next incinerator, landfill, refinery or prison. • Literacy – when marginalized communities attempt to participate in environmental planning processes, less educated citizens can be hindered by a lack of language pro- ficiency and/or intimidated by legal/scientific jargon. Allowing such factors as lim- ited education to govern the outcome heightens the ethical injustice in the structural system. • Free Market Forces – should we rely on individuals’ entrepreneurial skills to deter- mine/influence residential and occupational choices or collectively adopt an Economic Baseline or Threshold of factors (economic, environmental, social) below which no one should have to live? How do we balance personal freedom with absolute human rights to a minimum quality of life? Does ‘a rising tide lift all boats’ or is it a Zero-Sum game? • Individual vs Institutional Discrimination – U.S. Supreme Court ruling (1976) that re- quires evidence of intent and identification of specific agents/perpetrators, must be overt and deliberate with a “single bad actor” [15]. • Rawls’ Social Contract Theory – a society’s moral behavior can be judged by the way its worst off are treated, asserted in his noted treatise A Theory of Justice: ‘Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override’ [16]. • Pervasive Cycle of Quiescence – giving in, giving up, feeling defeated, opting out; pes- simistically adopting a sense of hopelessness and anomie: no one cares about me … so why should I care? M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) 211 3 AMERICA’S EJ MOVEMENT For years, beginning with the United Church of Christ’s landmark 1987 study Toxic Wastes and Race in the United States, human rights activists and environmental scholars tried to call public attention to the problem of environmental injustice and its most virulent expression in environmental racism [17]. Yet, for many reasons – political apathy, economic rationaliza- tion, moral indifference, sheer busyness – their call fell on many deaf ears. America’s EJ movement was stuck in slow motion. When The Big Easy (New Orleans) became The Big Flush in August of 2005, Hurricane Katrina’s lessons sparked a national awakening to the reality that millions of poor and racial minorities were disproportionately exposed to environmental hazards. Katrina’s aftermath lifted the carpet under which large numbers of citizens lay hidden. Yet, Katrina was not unforeseen. Similarly, the British Petroleum Deepwater Horizon oil spill in April 2010 devastated lives, property, barrier islands, tourism and fishery economies along the entire Gulf Coast, inflict- ing the most pain on less resilient minority counties that permanently lost significant population. In a phenomenon termed the Goods Movement, many minority neighborhoods around the U.S. suffer alarming rates of public health issues due to breathing diesel fumes from 20–40,000 trucks per day traveling through their neighborhoods. Many retail ‘Dollar Stores’ serve poor communities, yet sell plastic products and toys that children might chew on, which contain potentially dangerous chemicals, e.g. phthalates. Ethical considerations are vital in assessing the virtues of economic structures and sys- tems. When benefits and costs are not distributed equitably, an ethical challenge exists. Policies that accrue benefits to a focused few while dispersing the costs across many (often unaware) citizens are politically easy to pass, e.g. tariffs on imports that protect a few domes- tic jobs (and gain passionate votes), yet impose costs across many dispersed consumers through higher prices and reduced choices. Conversely, environmental injustice/racism raises ethical challenges in the reverse by exploiting the lives of a powerless few by exposing them to environmental hazards in order to produce goods and services for many dispersed well-off citizens, e.g. migrant farm work- ers and coal miners generating food and electricity for the masses. Who would vote against those systems? When approached from a human rights perspective, the U.S. EJ movement has recently captured some public attention and catalyzed some policy efforts at the national, state and local levels to prevent and remediate cases and situations of environmental injustice in the workplace, neighborhood, highway, and waterway. However, much work remains, including building or rebuilding trust among citizens, industry, government, academia, religions and activist organizations. 4 CONSENSUS-BASED SOLUTIONS Complex social/environmental problems necessitate consensus-building processes that are inclusive, comprehensive and transparent. Grassroots efforts to facilitate groups of diverse stakeholders in proactively developing organic, deliberative and sustainable solutions are labor-intensive undertakings, yet usually worth the investment of participants’ time and resources. A beginning point for achieving win-win solutions is nurturing everyone to approach the collective table with two key attitudes: tetsugen and higher ground. A Zen concept, tetsugen means to ‘be as aware of the world around you and others as the fish that is aware of the water!’ Having genuine empathy for others’ lives opens the doors to mutual understanding, interpersonal trust, and reconciliation of diverse interests. Without trust, civic processes can remain painfully adversarial. 212 M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) The concept of higher ground builds on the notion of common ground. Whereas common ground seeks solutions that meet everyone’s independent needs, higher ground goes a step further when each participant defines their needs as including the needs of all other stake- holders. In other words, ‘My needs are not met unless your needs are also met!’ Conducting effective stakeholder meetings is an art and science. Several initial steps should not be taken lightly, glossed over by assuming that everyone already agrees on the process, meaning of terms and the agenda. Critical factors include: identifying and recruiting all stakeholders, holding meetings at times and places convenient to all participants, whether to have media present, establishing ground rules, deciding how to decide, defining ‘consensus.’ Skeptics may begin by asking two important questions: ‘Who is missing, not at the table? Who framed the debate, defined the problem, what is the real issue(s)?’ Eliciting whole group buy-in warrants substantive and transparent answers and dialogue to everyone’s satisfaction. In facilitating the content and tone of group discussions, objectivity and subjectivity are complementary factors. Heads and hearts are both relevant. Scientific facts and financial limitations are fundamental pieces of information. Expressing emotional passion is relevant, important and fruitful, as long as it includes empathy for others’ feelings, experiences and perspectives. Respecting and reconciling differences in human values can be the most chal- lenging task. 5 RECENT U.S. FEDERAL ACTIONS In 1990, a Workgroup within the U.S. Environmental Protection Agency (EPA) investigated alleged cases of environmental injustice and possible racism, which led to establishment of: • EPA Office of EJ to integrate EJ into federal policies and procedures (1992); • National Environmental Justice Advisory Council (NEJAC) to advise EPA Administrator regarding specific situations and possible solutions (1993); • President Clinton issues Executive Order 12898 mandating inclusion of EJ into the mis- sion of all federal agencies (1994); • Interagency Task Force includes 17 federal agencies adopting EJ in their missions (2016). In the last eight years, the EPA has taken the initiative on several EJ fronts: • Establishment of a Federal Interagency Work Group with 17 members; • Development of an online EJ screening tool to enable localities and communities to evalu- ate empirically whether they are experiencing environmental injustice; • Increased funding by $50 million annually for protection of tribal lands; • Additional funds for industry fence line monitoring grants; • Consent decree authorizing no-cost share grants for upgrading emissions equipment in school bus fleets; • Pesticide safety education grants in multiple languages to protect mothers and children; • Research and scientific studies of point source pollution in major ports and highway cor- ridors in minority communities; • Development of EJ2020 – a long-range strategic plan to promote EJ. 6 SELECTED LOCAL SUCCESS STORIES U.S. EPA works closely with the 50 states’ Department of Environmental Quality (DEQ), Department of Natural Resources (DNR), et al. The relationship frequently turns adversarial M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) 213 regarding laws and issues of compliance. Fortunately, many examples exist of positive coop- eration, including: • Air Quality – AK Steel agreed to reduce particulate matter emissions from its steel and iron plant (Michigan); • Soil Restoration – EPA and Oconto County Solid Waste (Wisconsin) removed and re- cycled thousands of cubic yards of soil contaminated by electronic waste; • Emergency Response – Federal, state and local stakeholders worked quickly and effec- tively to clean up and track dangerous chemicals that exploded in a major fire at Roway- ton Trading’s plant (Connecticut); • Brownfield Revitalization – diverse stakeholders leveraged Brownfields grants to invest in the Manchester Lawrence Rail Road (Massachusetts) and conduct job training in site remediation and water management; • Waste Recycling – diverse stakeholders in Conejos and Costillos Counties (Colorado) used an EPA grant to address illegal waste dumping in the San Luis Valley and established waste collection and transfer facilities; • Sustainable Living – in their Making a Visible Difference (MVD) project, EPA and Poplar (Montana) officials worked with the Assiniboine and Sioux Tribes to build LEED Plati- num homes through the Make-It-Right Foundation; • Smart Growth – EPA and worked with diverse local groups through the Queen City Crossing & 6th Ward Neighborhood MVD Project (Montana) to remediate brownfields, refurbish vacant properties, improve pedestrian access, redirect car and bicycle flow, in- vest in equitable mixed-use development, and install urban green space. These examples reflect many collaborative efforts across the U.S. that have integrated EJ concerns into regional and local strategic plans for sustainable development. When all levels of government, industry and citizenry seek higher ground, intertemporal social welfare is usually maximized [18]. 7 CONCLUSION A necessary, though not sufficient, condition for sustainable development, EJ is ultimately about power: who has it, how is it used, how is it gained and what are its fruits? Are all stakeholders fairly represented? Having learned the hard way, elder minorities bluntly warn their children: ‘If you’re not at the table, you’re on the menu!’ Maintaining our household requires wisdom. Who will speak for the voiceless: the unin- formed neighbor, naïve consumers, silent majority, future citizens, wildlife and nature itself? True statesmanship sees beyond one’s own backyard. Sustainable development demands a collective vision based on interpersonal trust, recipro- cal sacrifice, shared power and intergenerational commitments. Building civic trust requires empathy. Empathy is hard work, yet its fruits are tangible and enduring, for we journey together on spaceship Oikos. EJ offers a sustainable path. REFERENCES [1] Meeks, M.D., God and land. Agriculture and Human Values, 2(4), pp. 16–27, 1985. https://doi.org/10.1007/BF01530674 [2] Young, M.D., Sustainable Investment and Resource Use: Equity, Environmental Integ- rity, and Economic Efficiency, Park Ridge: Parthenon Publishing, 1992. 214 M. J. Ellerbrock, Int. J. Sus. Dev. Plann. Vol. 13, No. 2 (2018) [3] Costanza, R. (ed.), Ecological Economics: The Science and Management of Sustain- ability, New York, NY: Columbia University Press, 1991. [4] Daly, H.E. & Cobb, J.B Jr., For the Common Good: Redirecting the Economy Toward Community, the Environment, and a Sustainable Future, Boston, MA: Beacon Press, 1994. [5] Haught, J.F., The Promise of Nature, New York, NY: Paulist Press, 1993. [6] Agency for Toxic Substances & Disease Registry. The Nature and Extent of Lead Poi- soning in Children in the United States: A Reprint to Congress, Atlanta: U.S. Depart- ment of Health & Human Services, 1988. [7] Freeman, M.A., The distribution of environmental quality. Environmental Quality Anal- ysis, ed. A.V. Kneese & B.T. Bower, Baltimore: Johns Hopkins Press, 1971. [8] Gelobter, M., The distribution of air pollution by income and race,” Paper presented at the 2nd Symposium on Social Science, Urbana, IL, June 1988. [9] Gianessi, L., Peskin, H.M. & Wolff, E., The distributional effects of uniform air pollu- tion policy in the U.S. Quarterly Journal of Economics, 93(2), 281–301, 1979. https://doi.org/10.2307/1883195 [10] Wernette, D.R. & Nieves, L.A., Breathing polluted air. EPA Journal, 18, pp. 16–17, 1992. [11] West, P.C., Fly, F. & Marans, R., Minority anglers and toxic fish consumption: evidence from a state-wide survey of michigan. Proceedings of the Michigan Conference on Race and the Incidence of Environmental Hazards, ed. B. Bryant & P. Mohai, Ann Ar- bor: University of Michigan School of Natural Resources, 1989, pp. 108–122. [12] Bullard, R.D., Dumping in Dixie: Race, Class and Environmental Quality, Boulder, CO: Westview Press, 1990. [13] Bullard, R.D. & Wright, B.H., Environmentalism and the politics of equity: Emergent trends in the black community. Mid-American Review of Sociology, 12, pp. 21–37, 1986. [14] United Church of Christ Commission for Racial Justice, Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites, New York, NY: United Church of Christ, 1987. [15] Cole, L.W. & Foster, S.R., From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement, New York, NY: New York University Press, pp. 63–66, 2001. [16] Rawls, J., A Theory of Justice, Boston: Harvard University Press, p. 560, 1971. [17] United Church of Christ, Toxic Wastes and Race: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites, New York, NY: UNCC, 1987. [18] Dukes, F., Stephens, J.B. & Piscolish, MA., Reaching for Higher Ground: Creating Purpose-driven, Principled, and Powerful Groups, Charlottesville: Dukes, Piscolish & Stephens, 2008. 
work_mycm4trdszbpjkvbggotr6d6z4	----	http://gom.sagepub.com/ Group & Organization Management http://gom.sagepub.com/content/28/4/502 The online version of this article can be found at: DOI: 10.1177/1059601103251234 2003 28: 502Group & Organization Management Maureen L. Ambrose and Joseph G. Rosse Procedural Justice and Personality Testing : An Examination of Concern and Typical Published by: http://www.sagepublications.com can be found at:Group & Organization ManagementAdditional services and information for http://gom.sagepub.com/cgi/alertsEmail Alerts: http://gom.sagepub.com/subscriptionsSubscriptions: http://www.sagepub.com/journalsReprints.navReprints: http://www.sagepub.com/journalsPermissions.navPermissions: http://gom.sagepub.com/content/28/4/502.refs.htmlCitations: at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ http://gom.sagepub.com/content/28/4/502 http://www.sagepublications.com http://gom.sagepub.com/cgi/alerts http://gom.sagepub.com/subscriptions http://www.sagepub.com/journalsReprints.nav http://www.sagepub.com/journalsPermissions.nav http://gom.sagepub.com/content/28/4/502.refs.html http://gom.sagepub.com/ 10.1177/1059601103251234 ArticleGROUP & ORGANIZATION MANAGEMENTAmbrose, Rosse / PROCEDURAL JUSTICE Procedural Justice and Personality Testing AN EXAMINATION OF CONCERN AND TYPICALITY MAUREEN L. AMBROSE University of Central Florida JOSEPH G. ROSSE University of Colorado, Boulder Research in selection examines how organizational justice principles may influence applicants’ reactions to selection procedures. This article extends this research by examining how two aspects of procedures—interpersonal treatment and social comparison information—affect reactions to a personality testing. The results of two studies demonstrate that interpersonal treat- ment (expression of concern for applicants’ feelings) and social comparison information (description of testing as either typical or experimental) interact to affect test-takers’ reactions. When concern was expressed and personality testing was described as typical, individuals responded less positively. However, when no concern was expressed, evaluations were more positive when testing was described as typical. The implications for organizational justice research and selection research are discussed. Keywords: organizational justice; selection; applicant reactions; social comparisons In the past several years, research has examined how justice principles may affect applicant responses to selection procedures (Gilliland, 1993, 1994; Ployhart & Ryan, 1997, 1998; Ployhart, Ryan, & Bennett, 1999; Singer, 1993). This research is particularly relevant in the area of personality testing. The use of personality inventories reveals that applicants often respond nega- tively to such testing. In this study, we examine how perceptions of proce- dural fairness might influence individuals’ affective responses to the use of personality tests for selection purposes. In recent years, organizational researchers have reconsidered the role of personality in employee selection. Reviews and meta-analyses by Barrick and Mount (1991a), Hogan, Hogan, and Roberts (1996), Hough, Dunnette, Group & Organization Management, Vol. 28 No. 4, December 2003 502-526 DOI: 10.1177/1059601103251234 © 2003 Sage Publications 502 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Eaton, and Kamp (1990), Schneider, Hough, & Dunnette (1996), Tett, Jack- son, and Rothstein (1991), and Viswesvaran, Ones, and Schmidt (1992) have established the job-relatedness of various personality facets for various dimensions of job performance. Additionally, several studies have shown that personality inventories provide unique predictive ability independent of other selection methods such as cognitive ability measures (Day & Silverman, 1989; Rosse, Miller, & Barnes, 1991; Schippmann & Prien, 1989) and assessment centers (Goffin, Rothstein, & Johnston, 1996). Despite this body of evidence, a number of obstacles to wider use of per- sonality testing remain. One of the most serious is a lack of acceptance by job applicants. Smither, Reilly, Millsap, Pearlman, and Stoffey (1993) report that managers perceived personality testing to be among the least job related of selection techniques. Research consistently demonstrates that applicants respond less favorably to personality testing than other forms of selection (Jones, 1991; Rosse, Miller, & Stecher, 1994; Rynes & Connerly, 1993; Stone, Stone, & Hyatt, 1989). For example, Stone et al. (1989) found that personality tests were perceived as more invasive of privacy than most typi- cal selection procedures (i.e., application blanks, interviews, work samples, physical and mental ability tests); only background checks, medical exams, drug tests, and honesty tests were seen as more invasive. In a similar study, Jones (1991) found only voice stress analysis, urinalysis, blood tests, polygraphy, and genetic testing to be more unpopular. Paramount among applicants’ concerns is a sense that standardized personality tests are an inva- sion of privacy and that they depersonalize the selection process by reducing one’s complex personal nature to a set of objective scores. It was just this kind of concern that led to the frequently cited Soroka v. Dayton-Hudson case in which the plaintiffs argued that a personality inventory was an undue invasion of privacy. These negative reactions to personality testing are important because research indicates that applicants’ reactions to recruitment and selection pro- cedures influence a variety of important outcomes, including applicants’ atti- tudes toward prospective employers (Macan, Avedon, Paese, & Smith, 1994; Ployhart et al., 1999; Rynes, 1991; Rynes, Bretz, & Gerhart, 1991; Smither et al., 1993, Smither, Millsap, Stoffey, & Reilly, 1996), applicants’ motivation to do well (Arvey, Strickland, Drauden, & Martin, 1990), with- drawal from the applicant pool (Rynes et al., 1991), applicants’ self-efficacy (Gilliland, 1994; Ployhart & Ryan, 1997), lawsuits (Bible, 1990), job choice intentions (Liden & Parsons, 1986; Macan et al., 1994; Schmitt & Coyle, 1976; Turban & Keon, 1993), and loyalty to the employer after having been hired (Crant & Bateman, 1989, 1990; Smither et al., 1996). These negative Ambrose, Rosse / PROCEDURAL JUSTICE 503 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ reactions can be a particular concern for personality inventories because they generally have less face validity than other personnel selection tools. These findings pose a dilemma for proponents of pre-employment per- sonality assessment. Personality tests may provide relevant information that benefits the organization yet may be poorly received by applicants, thereby causing negative organizational consequences. Cropanzano (1994) has described this predicament as the “justice dilemma”—a general trend in which valid personnel selection tools are perceived to violate principles of fairness. Finding a way to enhance applicants’ reactions to personality test- ing could not only reduce the problems we have described but could also pro- vide direct benefits. If applicants feel the selection process is fair, they are more likely to feel good about the organization even if they are not hired (Gilliland, 1994; Ployhart & Ryan, 1998). Because the applicant may be a consumer of the organization’s goods or services, or may be in a position to recommend the firm to other consumers or job searchers, having applicants finish the job search process with a positive impression is a desirable end in itself. Given the importance of perceived justice in a wide variety of other orga- nizational domains (see Cropanzano & Greenberg, 1997, for a review), it is not surprising that researchers have examined the effects of perceived fair- ness in a selection context. Although this selection research replicates many of the justice effects found in other areas, it also reveals some differences. For example, replicating the typical process-by-outcome interaction found in justice literature, Gilliland (1994) found that procedural justice mattered when individuals received unfavorable outcomes, that is, when applicants were rejected. Also consistent with previous justice research, Gilliland found that providing applicants with explanations for their rejection increased posi- tive outcomes, in this case the likelihood that they would recommend the pro- ject to others or apply for a similar project in the future. However, explana- tions did not affect perceptions of procedural fairness and had a negative effect on performance quality for successful applicants—both findings con- trary to justice predictions. In a study of graduate program applicants, Ployhart and Ryan (1997) found that applicants evaluated the selection experience more favorably when they believed the procedures were fair. However, unlike Gilliland (1994) and most justice research, the results were stronger when the appli- cants received a fair outcome than when they received an unfair outcome. In a subsequent longitudinal study, Ployhart and Ryan (1998) examined the effect of positive rule violation (i.e., procedural violations that were advanta- geous to applicants) and perceptions of fairness. They found positive rule 504 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ violation and rule satisfaction (i.e., adherence to procedures) were perceived as equally fair (and more fair than procedural violations that were disadvan- tageous to the applicant). Additionally, positive rule violation and rule satis- faction have similar effects on outcome variables (intentions to recommend the job to others, intention to participate in similar selection procedures in the future). However, Ployhart and Ryan (1998) did not find the traditional pro- cess-by-outcome interaction in this study, either. Rather, applicants’ inten- tions were lowest and their self-perceptions were least favorable when the process was perceived as unfair and the outcome was perceived as fair. Most recently, Ployhart et al. (1999) examined the effect of explanations on individuals’ reactions to selection decisions. They found that explana- tions generally enhanced perceptions of fairness and perceptions of the orga- nization, but the type of information provided and the sensitivity of the expla- nation influenced the magnitude of that effect. Procedural explanations that focused on how the decision was made (e.g., consideration of test scores, work sample) and personal explanations that provided information about the individual’s relative performance on these dimensions were evaluated more favorably than an explanation that focused on the organization’s desire to select a diverse workforce. Sensitivity increased the perceived fairness of all explanations and enhanced perceptions of the organization. However, the diverse workforce justification alone (without a sensitive presentation) resulted in the lowest evaluations—lower than a control group that received no explanation. In general, the research on organizational justice and selection procedures suggests that although justice may provide useful principles for improving the perceived fairness of the selection experience, the application of justice principles to selection procedures is not a straightforward process. In this article, we continue to examine the relationship between selection proce- dures and justice and attempt to understand the complexity of this relation- ship. Specifically, we examine how two variables from the organizational justice literature—interpersonal treatment by the administrator and how typ- ical test use is—may affect applicants’ reactions to personality testing. As described below, we believe that both of these variables play an important role in individuals’ assessments of the fairness of personality testing. The first, interpersonal treatment, has been examined in some previous empirical research on selection and justice (Ployhart & Ryan, 1998). The second, typi- cality, has only received theoretical attention. Our study considers both the independent and interactive effects of these constructs. In addition to increasing our understanding of the perceived fairness of selection, the study also seeks to extend work on interactional justice. Ambrose, Rosse / PROCEDURAL JUSTICE 505 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Previous research on interactional justice has examined the boundary condi- tions for one interactional justice component—the effectiveness of explana- tions (Conlon & Murray, 1996; Conlon & Ross, 1997; Ployhart et al., 1999; Shapiro, Buttner, & Barry, 1994). In this study, we consider boundary condi- tions for interpersonal sensitivity, the other component of interactional jus- tice, and develop competing hypotheses for the effects of interpersonal treat- ment and social comparisons on reactions to personality testing. ORGANIZATIONAL JUSTICE AND PERSONALITY TESTING Early procedural justice research focused on the structural aspects of pro- cedures (e.g., voice opportunities, consistency, opportunity for appeals). Recent research has focused on the “social side” of procedural justice. The distinction between structural and social aspects of procedural justice was first made by Bies and Moag (1986), who used the term interactional justice to capture the quality of interpersonal treatment the target receives from the decision maker. Although there is debate about whether interactional justice is an independent form of organizational justice (Bies, 2001; Cropanzano & Prehar, 1999; Malatesta & Byrne, 1997; Masterson, Lewis, Goldman, & Taylor, 2000; Moye, Masterson, & Bartol, 1997) or if it can be subsumed under the procedural justice umbrella (Brockner & Wiesenfeld, 1996; Cropanzano & Greenberg, 1997; Greenberg, 1993b), researchers agree that interactional justice has two components: procedural explanations (i.e., pro- viding a rationale for why a decision was made) and interpersonal sensitivity (i.e., demonstrating concern for the individual, treating individuals with respect). There is substantial empirical support for the effect of interpersonal treat- ment on individuals’ reactions to procedures. Brockner and Greenberg (1990) found that interpersonal treatment can influence the procedural fair- ness judgments of “survivors” regarding how employees were laid off. Tyler (1988) found interpersonal treatment to be among the most important attrib- utes individuals listed in describing the fairness of their interactions with police. Lind (1992) asked attorneys and litigants to rate the fairness of arbi- tration awards and found that “relational” factors were substantially more important than either structural factors (i.e., decision and process control) or the outcome of the hearing. Greenberg (1993a, 1994) demonstrates that sen- sitive interpersonal treatment increases perceptions of fairness and reduces organizationally dysfunctional behavior (e.g., theft). In the area of selection, interpersonal treatment has also received atten- tion. Gilliland (1993) suggests that interpersonal treatment will directly influence individuals’ perceptions of the fairness of a selection procedure. 506 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Ployhart et al. (1999) varied sensitivity through the personalization and the concern expressed in employment decision letters. They found that increased sensitivity increased the perceived fairness of the selection decision. We sug- gest that these results also apply to personality testing. If the person who administers the test expresses concern about applicants’ feelings that some of the questions may seem very personal, applicants’ concerns may be allevi- ated and their sense of fairness enhanced. Based on this logic, we suggest the following hypothesis: Hypothesis 1: Individuals will react more positively to the use of personality tests for selection when the test administrator expresses concern about the individ- ual’s feelings when the personality inventory is administered than when no concern is expressed. A second feature of the social context that may influence how an individ- ual reacts to personality testing involves social comparison processes. Mastrangelo (1997) suggests that negative applicant reactions to invasive selection procedures may dissipate as these procedures become more com- mon in organizations. Under these conditions, individuals will come to expect the use of these techniques and will view them as acceptable. Thus, social comparisons are expected to affect the perceived fairness of personal- ity testing. Substantial research demonstrates the importance of social comparisons for distributive justice judgments (Adams, 1965; Goodman, 1974; Green- berg, 1988). However, only two studies have directly tested the impact of social comparisons on judgments of procedural justice. Both demonstrate that individuals use social comparisons to determine the fairness of the pro- cedures to which they are subjected (Ambrose, Harland, & Kulik, 1991; Grienberger, Rutte, & van Knippenberg, 1997). Ambrose et al. (1991) suggest that social comparisons are particularly important when there is ambiguity about the appropriate evaluation of a pro- cedure (e.g., the procedure is novel or multiple alternative procedures exist). For most individuals, the use of personality tests as part of selection is a novel experience. Therefore, applicants may use information regarding whether or not other individuals in similar settings are subject to such testing in deter- mining the fairness of the procedure. Therefore, we suggest the following hypothesis: Hypothesis 2: Individuals will react more positively to the use of personality tests for selection when they are told that personality testing is typical than when it is presented as experimental. Ambrose, Rosse / PROCEDURAL JUSTICE 507 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ It is tempting to suggest that all an organization need do to overcome per- ceptions of unfairness during the selection process is to show applicants that they are concerned about them or to defend the personality testing as a com- mon practice that many applicants experience. However, interpersonal sen- sitivity is a complex construct. For example, in the Greenberg (1993a, 1994) studies, the decision maker both acknowledged that the decision will cause or has caused the target discomfort and expressed concern or sympathy about the discomfort. In Greenberg’s (1993a, 1994) cases, there was little ambigu- ity in individuals’ minds about the favorableness of the decisions (either to reduce pay or to impose a ban on smoking). In contrast, with personality test- ing there is considerably more ambiguity inasmuch as most applicants have limited knowledge of what a personality test involves. In this circumstance, having an organizational representative express concern prior to taking the test could backfire by implying that the test administrator believes there is a reason to be concerned. How individuals react to an expression of concern may be influenced by other information they have about the testing procedure. There is a possibil- ity that expressions of concern and social comparison information may inter- act. If testing is described as typical and the administrator demonstrates that he or she is concerned about the applicant’s feelings prior to administering the test, this may be perceived as an acknowledgment that he or she knows that the test will make applicants uncomfortable but requires them to take the test anyway. The administrator may be perceived as disregarding the inter- ests of the applicants. Thus, concern in conjunction with social comparison information may cause individuals to respond more negatively. Rather than main effects, we may see an interaction between concern and typicality. We suggest as an alternative to Hypothesis 1 and Hypothesis 2 the following: Hypothesis 3: Individuals will respond more negatively when the test administra- tor expresses concern and testing is described as typical than when the admin- istrator expresses concern and the testing is described as experimental. Our final hypothesis stems from Lind’s (1995; Lind, Kulik, Ambrose, & deVera, 1993) proposal that the manner in which a person is treated creates a global impression about the person or organization administering the treatment—a fairness heuristic. This global impression operates as a cogni- tive shortcut for individuals to form opinions and expectations about how the decision maker will treat one in the future. Based on this work, we predict the following: 508 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Hypothesis 4: Individuals’ reactions to the personality testing procedure will gen- eralize to reactions to the organization in general. In designing a study to test these hypotheses, we sought to overcome two disadvantages of many studies of applicant reactions to personality tests. The first limitation is asking respondents to describe their reactions to a proce- dure they have never actually experienced, such as asking people how they think they’d react if asked to complete a personality inventory. Kravitz, Stinson, and Chavez (1994) found that reactions of individuals who had not experienced various selection procedures were significantly different from those who had. The second design factor was to create a situation in which respondents believe that the results of the personality inventory would actu- ally be used as part of a decision that is important to them. STUDY 1 METHOD Participants. Seventy students in an MBA program at a large western uni- versity participated in the study. Except for students who were absent, this constituted the entire 1st-year class. Forty-nine of the students were male. On average, the participants were 27 years old and had 4.3 years of full-time work experience. Design. The study was a 2 (typicality: typical vs. experimental) × 2 (con- cern: concern vs. no concern) factorial design. Both manipulations were between-subjects factors. Stimulus materials and procedures. An important consideration in designing this experiment was to ensure that participants took seriously the process of completing the personality inventory. Unless the process seemed realistic and included salient consequences, the generalizability of our results to job applicants would be suspect. To accomplish this objective, a representative of the MBA program office administered all questionnaires. The 35-year-old male representative told the participants that their scores on the personality inventory would be one of the factors that would decide who would receive summer internships. Internships were regarded as extremely valuable. The MBA program was designed such that students would do a summer internship after their 1st year. Ambrose, Rosse / PROCEDURAL JUSTICE 509 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ At the time of this study, there were substantially more students seeking internships than there were internships available. Additionally, as the MBA program was a full-time, lock-step day program, none of the students were currently employed on a full-time basis. Part-time work was also dis- couraged while students were in the program. This increased the importance of obtaining a summer internship. The personality inventory was administered during class time in one of the required MBA courses. (The MBA program is lock-stepped, so that all students were randomly assigned to one of two sections of the course.) At the end of the session, the students were completely debriefed; comments by stu- dents during the debriefing confirmed that they believed that their scores on the personality measure would affect their chances of receiving an intern- ship. Because internships are regarded as valuable and difficult to obtain, their test performance was salient to them. The personality measure used was the Personal Characteristics Inventory (PCI). This inventory has been developed as a measure of the Big 5 personal- ity dimensions that is well suited for employment selection purposes. It con- sists of 172 agree/disagree questions; test items were specifically designed to enhance face validity for employment decisions. Information on its develop- ment and psychometric properties can be found in Barrick and Mount (1991b). The concern manipulation occurred during the introduction of the PCI. Our manipulation is similar to that used by Greenberg (1993a, 1994) and Ployhart et al. (1999). It both acknowledged a (potential) problem and expressed sympathy for the test takers. In the concerned condition, in one of the two sections of the course, the individual administering the PCI acknowl- edged that some of the questions might seem personal and expressed concern about causing the participants to feel uncomfortable. The other course sec- tion served as the no concern condition. In the no concern condition, no acknowledgment or concern was expressed. Typicality was manipulated in the written instructions to the PCI. In the typical condition, the cover sheet to the PCI informed participants that the MBA program was “following the lead of other Big Twelve and Big Ten institutions by using a personality inventory as part of the internship screen- ing process.” In the experimental condition, participants were told that the use of the personality inventory as part of the internship screening process was experimental. The typicality manipulation was randomly distributed in each class. Thus, the participants were nearly equally distributed across con- ditions (n = 18, 14, 19, 19 for the concern-typical, concern-experimental, no concern-typical, no concern-experimental conditions, respectively). 510 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ After students completed the PCI (and before they were debriefed), the representative from the MBA office asked them to complete a second ques- tionnaire. This questionnaire was described as an opinion survey that assessed attitudes about a wide range of topics related to the MBA program. Because they were the first class in a radically revised MBA curriculum, being asked to complete such a survey did not seem unusual to them; in fact, they had completed a similar survey a few months earlier. In addition to “filler” items intended to disguise its purpose, the survey contained several 7- point Likert-type scales that served as dependent measures for this study. After completing the survey, students were debriefed. Dependent measures and manipulation checks. To assess reactions to testing, we assessed three aspects of the procedure: perceptions of interper- sonal treatment (how fairly they were treated by the test administrator and how satisfied they were with the test administrator’s treatment), perceptions of the internship selection procedure (how fair the internship selection proce- dure was and how satisfied they were with the procedure by which intern- ships are determined), and perceptions of the test (how fair the personality test was). Participants rated each of these items on a 7-point Likert-type scale (1 = very unfair or very dissatisfied; 7 = very fair or very satisfied). We com- bined these three aspects to form a scale that assessed reactions to the testing procedure (coefficient alpha = .64). The participants also responded to 11 items that rated their satisfaction with features of the MBA program (e.g., orientation, program administra- tion, faculty, courses, student groups). These items were combined to form the satisfaction with the MBA program scale (coefficient alpha = .78). The opinion survey also contained a manipulation check for concern. Par- ticipants rated whether the administrator had acknowledged the personal nature of the inventory and how concerned about them the test administrator had been. RESULTS Descriptive statistics are reported in Table 1. The correlation between reactions to testing and satisfaction with the MBA program was significant (r = .46, p < .01). T tests were conducted on the acknowledgment and concern items designed to assess the concern manipulation. An examination of the means for the acknowledgment item indicates that participants noted that the test Ambrose, Rosse / PROCEDURAL JUSTICE 511 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ administrator acknowledged the personal nature of the test items. In the con- cern condition, the mean (M = 6.63) was significantly higher than in the no concern condition (M = 1.95), t(65) = –17.32, p < .001. The second manipu- lation check item, asking if the test administrator had seemed concerned about them, also showed significant differences between the two groups, t(64) = –2.22, p < .05. Respondents in the concern condition rated the test administrator as significantly more concerned (M = 3.90) than respondents in the no concern condition (M = 3.00). Hypotheses 1 and 2 predicted main effects for the concern and typicality variables on reactions to the personality testing. Hypothesis 3 suggested these variables would interact. Analysis of variance revealed no main effects for either of the independent variables. (For reactions to the procedure, F[1,37] = 1.60 and 1.27 for concern and typicality, respectively. For satisfaction with the MBA program, F[1,57] = .60 and .25 for concern and typicality.) However, a consistent and meaningful pattern of interactions did emerge, supporting both Hypothesis 3 and Hypothesis 4. Significant interactions were found for participants’ reactions to the procedure, F(1,37) = 4.20, p < .05, and satisfaction with the MBA program, F(1,57) = 4.84, p < .05. Cell means for the interactions are in Table 2 and the interactions are plot- ted in Figure 1. The pattern of ratings for the interactions was the same for each variable. As predicted in Hypothesis 3, when the administrator 512 GROUP & ORGANIZATION MANAGEMENT TABLE 1 Descriptive Statistics for Study 1 and Study 2 Study 1 Study 2 M SD M SD Reactions to testing 4.42 1.11 5.02 0.77 Satisfaction with MBA program 5.05 0.69 5.40 0.60 TABLE 2 Study 1: Cell Means for Significant Interactions Typical Experimental Reaction to testing process Neutral 4.85 4.51 Concern 3.63 4.80 Satisfaction with MBA program Neutral 5.27 4.97 Concern 4.75 5.22 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ expressed concern and the personality inventory was described as typical, applicants perceived the procedure as less fair than when the administrator expressed concern and the testing was described as experimental. In the no concern condition, testing described as typical was judged more favorably for reactions to testing than testing described as experimental. A similar pat- tern emerged for satisfaction with the MBA program. DISCUSSION These results suggest that concern and information about typicality do affect individuals’ reactions to the use of a personality test in selection. Ambrose, Rosse / PROCEDURAL JUSTICE 513 Figure 1: Mean Levels of Participants’ Reactions for No Concern and Concerned Con- ditions (Study 1) at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ However, rather than main effects, the analyses revealed a consistent pattern of interactions in which expressions of concern had no effects when testing was described as experimental but negatively affected reactions when the testing was described as typical. Previous research in organizational justice demonstrates that the expres- sion of concern increases the perceived fairness of the procedure (Greenberg, 1993a, 1994). However, when paired with information that suggested the administrator knew the likely effect of the procedure, expressions of concern appear to send a message that the test administrator is actually less sensitive to applicants, requiring them to complete the personality inventory despite the awareness that its content will make them uncomfortable. These results are consistent with the Ambrose et al. (1991) study, in which participants seemed to use the procedural information and social comparison information together to make attributions about the decision maker’s behav- ior. These attributions then colored their perceptions of fairness. A similar process appears to occur in the current study. When both pieces of informa- tion suggest the administrator is disregarding the participants’ interests (acknowledges the potential problem [concern], has information demon- strating there is a problem [typicality], and ignores it), participants respond negatively. When the information suggests the administrator is sensitive to their interests (acknowledges the potential problem [concern] but may not have sufficient information to be sure [experimental]), participants respond more positively. Results of Study 1 support our suggested interactive effect of concern and typicality. However, an examination of the absolute magnitude of the con- cern manipulation suggests that although statistically significant, respon- dents may not have perceived the MBA representative as having been very concerned about them. Individuals in the concern condition reported the rep- resentative was more concerned than in the no concern condition (M = 3.9 and 3.0, respectively). However, the representative was rated at about the midpoint on the scale. Thus, Study 1 may represent a weak expression of concern. It may be that a stronger expression of concern would eliminate the interactive effect we predict. To assess this possibility, we replicated the study strengthening our manipulation of concern. STUDY 2 The method for Study 2 was essentially the same as that used in Study 1, except that we employed a stronger manipulation of concern. The results 514 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ from Study 1 suggest our speculation about the interactive effects of concern and typicality was correct. Thus, in Study 2 we predict only an interaction for typicality and concern. We suggest the following hypothesis: Hypothesis 1: Individuals will respond more negatively when the test administra- tor expresses concern, and the testing is described as typical than when the administrator expresses concern and the testing is described as experimental. When the administrator expresses no concern, individuals will respond more positively when the testing is described as typical than when it is described as experimental. Additionally, based on the work by Lind (1995; Lind et al., 1993) on the fairness heuristic and the results of Study 1, we suggest the following: Hypothesis 2: Individuals’ responses to the personality testing procedure will gen- eralize to perceptions of fairness and to judgments of satisfaction with the employer in general. METHOD Participants. Sixty-nine students in an MBA program at a large western university participated in the study. Forty-six of the students were male. On average, the participants were 27 years old and had 4.3 years of full-time work experience. Except for students who were absent, this comprised the 1st-year MBA class for the year following Study 1. Design. The study was a 2 (typicality: typical vs. experimental) × 2 (concern: concern vs. no concern) factorial design. Both manipulations were between- subjects factors. Stimulus materials and procedures. As in Study 1, participants were told that the personality test would be used in selecting individuals for summer internships. A representative of the MBA office administered all question- naires 2 days before a widely publicized session for the 1st-year MBAs on the summer internship program. Once again, the personality inventory was administered during class time in one of the required MBA courses. As in Study 1, the students were completely debriefed at the end of the session. Because of the lock-step nature of the MBA program, there is very limited interaction between the 1st- and 2nd-year students; thus, there is little chance that the MBA class in Study 1 discussed their previous experience with the new class. Comments by students during the debriefing confirmed that they believed that their scores on the personality measure would affect their Ambrose, Rosse / PROCEDURAL JUSTICE 515 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ chances of receiving an internship and that they had no prior knowledge about the study. The concern manipulation occurred during the introduction of the PCI. In one of the two course sections, the individual administering the PCI acknowledged that some of the questions might seem personal and apolo- gized about causing the participants to feel uncomfortable. Although the wording of the acknowledgment was similar to Study 1, for this study the test administrator repeated the apology and stressed concern for the students. This course section served as the concern condition. The other course section served as the no concern condition. In the no concern condition, no acknowl- edgment or concern was expressed. The typicality manipulation was identi- cal to that in Study 1. Again, the participants were nearly equally distributed across conditions (n = 18, 16, 16, 19 for the concern-typical, concern-experi- mental, no concern-typical, no concern-experimental conditions, respec- tively). After students completed the PCI, the representative from the MBA office asked them to complete a second questionnaire. This questionnaire was described as an opinion survey that assessed attitudes about a wide range of topics related to the MBA program. This MBA class was the second class of the new MBA program. This class was not as widely surveyed as the first class, but they had completed several similar surveys. None of the students expressed any suspicion about the opinion survey. Dependent measures and manipulation checks. The questionnaire con- tained the same items used in Study 1. Respondents rated their reactions to testing (coefficient alpha = .58) and satisfaction with the MBA program (coefficient alpha = .67). RESULTS Descriptive statistics are reported in Table 1. The correlation between reactions to testing and satisfaction with the MBA program was significant (r = .49, p < .01). T tests were conducted on the acknowledgment and concern items designed to assess the concern manipulation. An examination of the means for the acknowledgment item indicates that participants did note that the test administrator acknowledged the personal nature of the test items. In the con- cern condition the mean (M = 6.74) was significantly higher than in the no concern condition (M = 2.63) , t(65) = –12.10, p < .001. The second manipulation check item, asking if the test administrator had seemed concerned about them, also showed significant differences between the two groups, t(63) = –5.80, p < .001. Unlike Study 1, participants in the 516 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ concern condition had substantially higher mean scores (M = 5.47) than those in the no concern condition (M = 3.20).1 We expected the concern and typicality variables to interact to affect reac- tions to the personality testing and that these effects would generalize to the measure of satisfaction with the MBA program. As predicted, ANOVAs revealed a consistent pattern of interactions. Additionally, an unexpected main effect was found. Typicality had a main effect for satisfaction with the MBA program, F(1,58) = 3.81, p < .05. Participants were more satisfied with the MBA program when testing was described as typical (M = 5.57) than when it was described as experimental (M = 5.26). However, these main effects must be considered in the context of the significant interactions. The analyses revealed significant interactions for reactions to testing, F(1,58) = 4.67, and satisfaction with the MBA program, F(1,58) = 4.95, p < .05. Cell means for the interactions are shown in Table 3. The interactions are depicted graphically in Figure 2. The pattern of means is as predicted. Indi- viduals in the concern-typical condition provided lower ratings than individ- uals in the concern-experimental condition. Individuals in the no concern- typical condition provided higher ratings than individuals in the no concern- experimental condition. However, although the pattern is as predicted, planned comparisons revealed that the means in the concern conditions were only marginally significantly different from one another for reaction to test- ing and not significantly different from one another for satisfaction with the MBA program. In contrast, the means in the no concern condition were sig- nificantly different for satisfaction with the MBA program but not for reac- tions to testing. DISCUSSION Study 2 was designed to examine if the interactive effect of concern and typicality that were revealed in Study 1 persisted when there was a stronger Ambrose, Rosse / PROCEDURAL JUSTICE 517 TABLE 3 Study 2: Cell Means for Significant Interactions Typical Experimental Reaction to testing process No concern 5.17 4.85 Concern 4.73 5.50 Satisfaction with MBA program No concern 5.63 5.03 Concern 5.50 5.54 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ expression of concern. A clear pattern of interactions was found in both studies. Consistent with our predictions, individuals in the concern-typical condition generally reported more negative reactions than individuals in the concern-experimental condition. Individuals in the no concern-typical condition reported more positive reactions than individuals in the no concern- experimental condition. An examination of these interactions across both studies shows mostly similarities. For both the weak and strong expressions of concern, the typical condition received less positive ratings than the experimental condition. The 518 GROUP & ORGANIZATION MANAGEMENT Figure 2: Mean Levels of Participants’ Reactions for No Concern and Concerned Con- ditions (Study 2) at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ primary difference lies in the interactions for satisfaction with the MBA pro- gram. Here there is little difference between the concern-typical and con- cern-experimental condition. Thus, we might speculate that with a stronger expression of concern, the negative affect associated with a specific proce- dure is less likely to generalize to other aspects of the organization. In general, these results are consistent with Greenberg and McCarty’s (1990) and Conlon and Ross’s (1997) findings. Individuals respond more negatively when a decision maker acknowledges a problem but apparently intends to take no action to change the situation. CONCLUSION We began doing research in this area because we were interested in how justice principles might affect applicants’ reactions to personality testing. Our results show that application of procedural justice theories may be useful in this regard, but they also underscore the complexity involved in under- standing individuals’ reactions to procedures. Much research to date sug- gests a straightforward relationship between concern and positive reactions to procedures. Our results suggest that the manner and context in which con- cern is conveyed plays an important role in how it is received. The consistent pattern of interactions suggests that under some condi- tions, concern may result in lower ratings of fairness than no expression of concern. Study 2 revealed that a strong expression of concern can increase the relative perceptions of fairness (M = 4.42 for Study 1, 5.02 for Study 2). However, in both studies, when the procedure is described as typical, acknowledging and apologizing for the invasiveness of the test led to less favorable reactions to testing. Most of the research on applicant responses to personality testing has not studied reactions of actual applicants who complete a personality inventory they believe will be used to make selection decisions. One of the strengths of our studies is that they assess the reactions of individuals who have both com- pleted the personality inventory and believe it will be used for selection pur- poses. This is particularly important because research on applicant reaction demonstrates that responses differ between individuals who have had experi- ence with the procedures used in selection and those who have not experi- enced the procedures (Kravitz et al., 1994). We also assessed perceptions of fairness prior to any information about outcomes being provided. Much research on selection assesses perceived fairness following selection deci- sions. However, as Ployhart and Ryan (1998) demonstrate, the relationship between procedural fairness and distributive fairness in selection is complex Ambrose, Rosse / PROCEDURAL JUSTICE 519 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ and it is useful to consider perceptions of fairness at multiple times in the selection process. Prehire procedural fairness can affect applicants’ decision to remain in the applicant pool. Of course, there are a number of limitations to this study. First, for each experiment we collected our data in a single session. Lind’s (1992) discus- sion of the fairness heuristic describes an ongoing effect on organizational interactions. We were unable to assess the long-term impact of the effect we see in our study. Additionally, our sample size is relatively small and although our participants believed their scores would be used as part of the internship selection procedure, the process was not the same as it would be in job selection. We also note that the reliability for our reaction to testing mea- sure is somewhat lower than is desirable. Low reliabilities can make effects more difficult to detect; they also indicate the measure is less precise than it might be. We also did not have a manipulation check for typicality. The results suggest that this manipulation was effective, as a coherent pattern of differences exists. But we do not know for certain that all individuals were cognizant of this manipulation. Again, this could affect the strength of our results. Finally, although a strong and consistent pattern of interactions was demonstrated in Study 1, the differences between the means were not always significant. We have speculated about the patterns. However, caution is required in the interpretation of the effects. Nonetheless, we believe these studies make two important contributions. First, in terms of organizational justice, the studies suggest important bound- ary conditions for the effectiveness of expressions of concern. One boundary condition may have to do with the evaluative ambiguity of a procedure or decision about to be experienced. Being told that you are being laid off or given a pay cut is pretty clearly unfavorable for most employees, and prior studies show that expressions of concern by the decision maker seem to soften the blow of such outcomes. But our results show that expressions of concern may have the opposite effect when outcome favorability is ambigu- ous. This is a finding deserving of replication in other settings. A second boundary condition for concern suggested by our data relates to weak expressions of concern. Across all conditions in both studies, the most negative reactions by far occurred when the test administrator acknowledged that people might not like the test but was perceived as not really caring that they felt that way (i.e., the concern-typical condition in Study 1). Procedural justice researchers have noted that the decision maker’s consideration and concern must be perceived as sincere to enhance the perceived fairness of procedures (Bies, 1987; Bies & Moag, 1986; Greenberg & Ornstein, 1983; Tyler & Bies, 1989). Our results are also consistent with those of Baron (1985, 1988), who demonstrated that when individuals perceived an 520 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ opponent’s external attributions to be insincere, they respond more nega- tively to their opponent and intend to behave less constructively in future interactions with their opponent than when a sincere attribution is made. Similarly, Greenberg and McCarty (1990) note that apologies may actu- ally serve to anger individuals when there is no indication that the individual apologizing plans to take action to change the situation for which he or she is apologizing. This is consistent with our results and the situation our partici- pants experienced. The pairing of typicality with our manipulation of con- cern created a condition in which it was clear individuals were expected to endure personality testing even though the administrator knew it might make them uncomfortable. A “hollow” apology with no attempt to remedy the situ- ation served to increase dissatisfaction with the process. As Greenberg (1995) noted, applications of organizational justice to dif- ferent contexts help us to refine the theory and learn about its generality. Pre- vious research has identified some of the boundary conditions for explana- tions; we recommend more consideration of these boundary conditions for expressions of concern. What is particularly challenging about research on concern is that individuals’ perceptions are likely to be influenced not only by what an individual says or does but by the manner in which the statement or action is made. Vocal tone, facial expressions, posture, and other para- linguistic cues may be subtle yet important influences on individuals’ per- ceptions of concern. From a selection perspective, the results demonstrate the importance of considering how individuals’ perceptions of the fairness of personality test- ing may influence their reactions to organizations. Both studies demon- strated that attributes of the testing procedure not only affected reactions to the procedure itself but also generalized to perceptions of other aspects of the organization. As recent legal action demonstrates, the use of personality tests can create dissatisfaction in applicants. Moreover, both selection research (Bible, 1990) and justice research (Bies & Tyler, 1993; Lind, 1997) demon- strates that individuals’ reactions to procedures influences the likelihood that they will undertake litigation. If the perceived unfairness of personality test- ing generalizes to other aspects of the organization, it raises the possibility that the problem may be doubly explosive, perhaps influencing individuals’ propensity to sue for other organizational actions. Our finding that individuals’ perceptions of fairness generalize to the organization may be particularly important in the context of selection because individuals’ views have both short-term (e.g., acceptance of a job offer) and long-term (e.g., commitment) implications. Organizational researchers have only begun to explore the range of procedural, contextual, Ambrose, Rosse / PROCEDURAL JUSTICE 521 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ and interactional factors that may affect reactions to personality testing and other employment procedures. For selection research, as evidence accumu- lates that personality assessment and other controversial procedures can play an important role in personnel selection, it becomes essential to isolate the key factors that influence their acceptability to applicants. This study is one step in increasing our understanding of how principles of justice can improve the acceptability of such procedures. NOTE 1. The means for the manipulation checks and dependent measures are slightly higher in Study 2 than Study 1. For the dependent measures, this is not surprising if the stronger manipula- tion of concern resulted in higher perceptions of fairness and satisfaction. However, to ensure that the participants in Study 2 were not simply more favorable than those in Study 1, we con- ducted t tests between the no concern conditions for the manipulations and dependent measures. These conditions should be equivalent. The t tests indicate that there are not significant differ- ences for acknowledging the personal nature of the items, t(53) = 1.77, for concern, t(64) = .54, reactions to testing, t(41) = 1.39, or satisfaction with the MBA program, t(68) = –.19). This find- ing, combined with the other similarities between the samples for the two studies suggests the groups are comparable. REFERENCES Adams, J. S. (1965). Inequity in social exchanges. In L. Berkowitz (Ed.), Advances in experi- mental social psychology (Vol. 2, pp. 267-300). New York: Academic Press. Ambrose, M. L., Harland, L. K., & Kulik, C. T. (1991). Influence of social comparisons on per- ceptions of organizational fairness. Journal of Applied Psychology, 76, 239-246. Arvey, R. D., Strickland, W., Drauden, G., & Martin, C. (1990). Motivational components of test taking. Personnel Psychology, 43, 695-716. Baron, R. A. (1985). Reducing organizational conflict. Journal of Applied Psychology, 70, 434- 441. Baron, R. A. (1988). Attributions and organizational conflict: The mediating role of apparent sincerity. Organizational Behavior and Human Decision Processes, 41, 111-127. Barrick, M. A., & Mount, M. K. (1991a). The big five personality dimensions and job perfor- mance: A meta-analysis. Personnel Psychology, 44, 1-26. Barrick, M. R., & Mount, M. K. (1991b). The Personal Characteristics Inventory. Unpublished manuscript. Bible, J. D. (1990). When employers look for things other than drugs: The legality of AIDS, genetic, intelligence, and honesty testing in the workplace. Labor Law Journal, 41, 195-213. Bies, R. J. (1987). Beyond “voice”: The influence of decision-maker justification and sincerity on procedural fairness judgments. Representative Research in Social Psychology, 17, 3-14. Bies, R. J. (2001). Interactional (in)justice: The sacred and the profane. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 89-118). Lexington, MA: New Lexington Press. 522 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Bies, R. J., & Moag, J. (1986). Interactional justice: Communication criteria of effectiveness. In R. Lewicki, B. Sheppard & M.Bazerman (Eds.), Research on negotiation in organizations (Vol. 1, pp. 43-55). Greenwich, CT: JAI Press. Bies, R. J., & Tyler, T. R. (1993). The “litigation mentality” in organizations: A test if alternative psychological explanations. Organization Science, 4, 352-366. Brockner, J., & Greenberg, J. (1990). The impact of layoffs on survivors: An organizational jus- tice perspective. In J.S. Carroll (Ed.), Applied social psychology and organizational settings (pp.45-74). Hillsdale, NJ: Lawrence Erlbaum. Brockner, J., & Wiesenfeld, B. M. (1996). An integrative framework for explaining reactions to decisions: The interactive effects of outcomes and procedures. Psychological Bulletin, 120, 189-208. Conlon, D. E., & Murray, N. M. (1996). Customer perceptions of corporate responses to product complaints: The role of explanations. Academy of Management Journal, 39, 1040-1056. Conlon, D. E., & Ross, W. H. (1997). Appearances do count: The effects of outcomes and expla- nations on disputant fairness judgments and supervisory evaluations. International Journal of Conflict Management, 8, 5-31. Crant, J. M., & Bateman, T. S. (1989). A model of employee responses to drug-testing programs. Employee Responsibilities and Rights Journal, 2, 173-190. Crant, J. M., & Bateman, T. S. (1990). An experimental test of the impact of drug-testing pro- grams on potential job applicants’ attitudes and intentions. Journal of Applied Psychology, 75, 127-131. Cropanzano, R. (1994). The justice dilemma in employee selection: Some reflections on the trade-offs between fairness and validity. Industrial/Organizational Psychologist, 31, 90-93. Cropanzano, R., & Greenberg, J. (1997). Progress in organizational justice: Tunneling through the maze. In L. T. Robertson & C. L. Cooper (Eds.), International review of industrial and organizational psychology (pp. 317-372). New York: John Wiley. Cropanzano, R., & Prehar, C. A. (1999, April). Using social exchange theory to distinguish pro- cedural and interactional justice. Paper presented at the annual meeting of the Society for Industrial and Organizational Psychology, Atlanta, GA. Day, D. V., & Silverman, S. B. (1989). Personality and job performance: Evidence of incremen- tal validity. Personnel Psychology, 42, 25-36. Gilliland, S. W. (1993). The perceived fairness of selection systems: An organizational justice perspective. Academy of Management Review, 18, 694-734. Gilliland, S. W. (1994). Effects of procedural and distributive justice on reactions to a selection system. Journal of Applied Psychology, 79, 691-701. Goffin, R. D., Rothstein, M. G., & Johnston, N. G. (1996). Personality testing and the assessment center: Incremental validity for managerial selection. Journal of Applied Psychology, 81, 746-756. Goodman, P. S. (1974). An examination of referents used in the evaluation of pay. Organiza- tional Behavior and Human Decision Processes, 12, 170-195. Greenberg, J. (1988). Equity and workplace status: A field experiment. Journal of Applied Psy- chology, 73, 606-613. Greenberg, J. (1993a). Stealing in the name of justice: Informational and interpersonal modera- tors of theft reactions to underpayment inequity. Organizational Behavior and Human Deci- sion Processes, 54, 81-103. Greenberg, J. (1993b). The social side of fairness: Interpersonal and informational classes of organizational justice. In R. Cropanzano (Ed.), Justice in the workplace: Approaching fair- ness in human resource management (pp. 79-103). Hillsdale, NJ: Lawrence Erlbaum. Ambrose, Rosse / PROCEDURAL JUSTICE 523 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Greenberg, J. (1994). Using socially fair treatment to promote acceptance of a work site smoking ban. Journal of Applied Psychology, 79, 288-297. Greenberg, J. (1995). The quest for justice on the job. Thousand Oaks, CA: Sage. Greenberg, J., & McCarty, C. L. (1990). Comparable worth: A matter of justice. In G. R. Ferris & K. M. Rowland (Eds.), Research in personnel and human resources management (Vol. 8, pp. 265-301). Greenwich, CT: JAI. Greenberg, J., & Ornstein, S. (1983). High status job title as compensation for underpayment: A test of equity theory. Journal of Applied Psychology, 68, 285-297. Grienberger, I. V., Rutte, C. G., & van Knippenberg, A. F. M. (1997). Influence of social compar- isons of outcomes and procedures on fairness judgments. Journal of Applied Psychology, 82, 913-919. Hogan, R., Hogan, J., & Roberts, B. W. (1996). Personality measurement and employment deci- sions: Questions and answers. American Psychologist, 51, 469-477. Hough, L. M., Dunnette, M. D., Eaton, N. K., & Kamp, J. D. (1990). Criterion-related validities of personality constructs and the effect of response distortions on those validities. Journal of Applied Psychology, 75, 581-595. Jones, J. (1991, April). Protecting job applicants’ and employees’ privacy rights: The employee’s perspective. Paper presented at the annual meeting of the Society for Industrial and Organizational Psychology, St. Louis, MO. Kravitz, D. A., Stinson, V., & Chavez, T. L. (1994, April). Perceived fairness of tests used in making selection and promotion decisions. Paper presented at the annual meeting of the Society for Industrial and Organizational Psychology, Nashville, TN. Liden, R. C., & Parsons, C. K. (1986). A field study of job applicant interview perceptions, alter- native opportunities, and demographic characteristics. Personnel Psychology, 39, 109-122. Lind, E. A. (1992, March). The fairness heuristic: Rationality and “relationality” in procedural evaluations. Paper presented at the 4th International Conference of the Society for the Advancement of Socio-Economics, Irvine, CA. Lind, E. A. (1995). Justice and authority relations in organizations. In R. S. Cropanzano & K. M. Kacmar (Eds.), Organizational politics, justice, and support (pp. 83-96). Westport, CT: Quorum. Lind, E. A. (1997). Litigation and claiming in organizations: Antisocial behavior or quest for jus- tice? In R. A. Giacalone & J. Greenberg (Eds.), Antisocial behavior in organizations (150- 171). Thousand Oaks, CA: Sage. Lind, E. A., Kulik, C. T., Ambrose, M. L., & deVera, M. V. (1993). Individual and corporate dis- pute resolution: Using procedural fairness as a decision heuristic. Administrative Science Quarterly, 38, 224-251. Macan, T. H., Avedon, M. J., Paese, M., & Smith, D. E. (1994). The effects of applicants’ reac- tions to cognitive ability tests and an assessment center. Personnel Psychology, 47, 715-738. Malatesta, R. M., & Byrne, Z. S. (1997, April). The impact of formal and interactional justice on organizational outcomes. Poster session presented for the 12th annual conference of the Society for Industrial and Organizational Psychology, St. Louis, MO. Masterson, S. S., Lewis, K., Goldman, B. M., & Taylor, M. S. (2000). Integrating justice and social exchange: The differing effects of fair procedures and treatment on work relation- ships. Academy of Management Journal, 43, 738-748. Mastrangelo, P. M. (1997). Do college students still prefer companies without employment drug testing? Journal of Business and Psychology, 11, 325-337. Moye, N. A., Masterson, S. S., & Bartol, K. M. (1997, August). Differentiating antecedents and consequences of procedural and interactional justice: Empirical evidence in support of 524 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ separate constructs. Paper presented at the National Academy of Management Meetings, Boston, MA. Ployhart, R. E., & Ryan, A. M. (1997). Toward an explanation of applicant reactions: An exami- nation of organizational justice and attribution frameworks. Organizational Behavior and Human Decision Processes, 72, 308-335. Ployhart, R. E., & Ryan, A. M. (1998). Applicants’ reactions to the fairness of selection proce- dures: The effects of positive rule violations and time of measurement. Journal of Applied Psychology, 83, 3-16. Ployhart, R. E., Ryan, A. M., & Bennett, M. (1999). Explanations for selection decisions: Appli- cants’ reactions to informational and sensitivity features of explanations. Journal of Applied Psychology, 84, 87-106. Rosse, J., Miller, H. E., & Barnes, L. (1991). Combining personality and cognitive ability predic- tors for hiring service-oriented employees. Journal of Business and Psychology, 5, 431-445. Rosse, J., Miller, J. L., & Stecher, M. D. (1994). A field study of job applicants’ reactions to per- sonality and cognitive ability testing. Journal of Applied Psychology, 79, 987-992. Rynes, S. (1991). Recruitment, job choice and post-hire consequences: A call for new research directions. In M. Dunnette & L. Hough (Eds.), Handbook of industrial and organizational psychology (Vol. 2, 2nd ed.). Palo Alto, CA: Consulting Psychologists Press. Rynes, S., Bretz, R., & Gerhart, B. (1991). The importance of recruitment in job choice: A differ- ent way of looking. Personnel Psychology, 44, 487-521. Rynes, S., & Connerly, M. L. (1993). Applicant reactions to alternative selection procedures. Journal of Business and Psychology, 7, 261-277. Schippmann, J. S., & Prien, E. P. (1989). An assessment of the contributions of general mental ability and personality characteristics to management success. Journal of Business and Psy- chology, 3, 423-437. Schmitt, N., & Coyle, B. W. (1976). Applicant decisions in the employment interview. Journal of Applied Psychology, 61, 184-192. Schneider, R. J., Hough, L. M., & Dunnette, M. D. (1996). Broadsided by broad traits: How to sink science in five dimensions or less. Journal of Organizational Behavior, 17, 639-655. Shapiro, D. L., Buttner, E. H., & Barry, B. R. (1994). Explanations: What factors enhance their perceived adequacy? Organizational Behavior and Human Decision Processes, 58, 345- 368. Singer, M. (1993). Determinants of perceived fairness in selection practices: An organizational justice perspective. Genetic, Social, and General Psychology Monographs, 116, 477-494. Smither, J. W., Millsap, R. E., Stoffey, R. W., & Reilly, R. R. (1996). An experimental test of the influence of selection procedures on fairness perceptions, attitudes about the organization, and job pursuit intentions. Journal of Business and Psychology, 10, 297-318. Smither, J. W., Reilly, R. R., Millsap, R. E., Pearlman, K., & Stoffey, R. W. (1993). Applicant reactions to selection procedures. Personnel Psychology, 46, 49-76. Stone, E., Stone, D., & Hyatt, D. (1989, April). Personnel selection procedures and invasion of privacy. Paper presented at the annual meetings of the Society for Industrial and Organiza- tional Psychology, Boston, MA. Tett, R. P., Jackson, D. N., & Rothstein, M. (1991). Personality measures as predictors of job per- formance: A meta-analytic review. Personnel Psychology, 44, 703-742. Turban, D. B., & Keon, T. L. (1993). Organizational attractiveness: An interactionist perspec- tive. Journal of Applied Psychology, pp. 184-193. Tyler, T. (1988). What is procedural justice? Criteria used by citizens to assess the fairness of legal procedures. Law and Society Review, 22, 301-355. Ambrose, Rosse / PROCEDURAL JUSTICE 525 at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ Tyler, T., & Bies, R. (1989). Beyond formal procedures: The interpersonal context of procedural justice. In J. Carroll (Ed.), Advances in social psychology: Business settings (pp. 77-98). Hillsdale, NJ: Lawrence Erlbaum. Viswesvaran, C., Ones, D., & Schmidt, F. (1992, August). Integrity tests predict drug and alco- hol abuse on the job. Paper presented at the annual meeting of the American Psychological Society, San Diego, CA. Maureen L. Ambrose (Ph.D., University of Illinois) is a professor of management in the College of Business Administration at the University of Central Florida. Her research interests include organizational fairness, computer monitoring, and ethics. Joseph G. Rosse (Ph.D., University of Illinois) is a professor of management and direc- tor of the Center for the Integrative Study of Work at the University of Colorado at Boul- der. His research on workplace attitudes and behavior, employee selection, and employee retention has appeared in numerous management journals and two books. 526 GROUP & ORGANIZATION MANAGEMENT at UNIVERSITY COLORADO on July 29, 2010gom.sagepub.comDownloaded from http://gom.sagepub.com/ 
work_mzpegmchbbbprm444aydbbvh5e	----	[PDF] Exposure to justice diminishes moral perception. | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1037/XGE0000241 Corpus ID: 19217640Exposure to justice diminishes moral perception. @article{Gantman2016ExposureTJ, title={Exposure to justice diminishes moral perception.}, author={Ana P. Gantman and J. V. Van Bavel}, journal={Journal of experimental psychology. General}, year={2016}, volume={145 12}, pages={ 1728-1739 } } Ana P. Gantman, J. V. Van Bavel Published 2016 Psychology, Medicine Journal of experimental psychology. General Evidence suggests that people have a lower threshold for the conscious awareness of moral words. Given the potential motivational relevance of moral concerns, the authors hypothesized and found that motivational relevance of moral stimuli enhanced the detection of moral words. People who saw a CrimeStoppers advertisement in which a majority (vs. minority) of wanted murderers had been brought to justice exhibited reduced detection of moral words (Experiment 1). Similarly, people who read that an… Expand View on PubMed psych.nyu.edu Save to Library Create Alert Cite Launch Research Feed Share This Paper 8 CitationsBackground Citations 4 View All Figures and Topics from this paper figure 1 figure 2 figure 3 figure 4 figure 5 figure 6 View All 6 Figures & Tables Cardiac Arrest Advertisements Paper Mentions Blog Post Legitimate National Affairs Online 17 January 2017 8 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency The time course of moral perception: an ERP investigation of the moral pop-out effect Ana P. Gantman, Sayeed Devraj-Kizuk, Peter Mende-Siedlecki, J. V. Van Bavel, K. Mathewson Psychology, Medicine Social cognitive and affective neuroscience 2020 PDF Save Alert Research Feed Beyond Value in Moral Phenomenology: The Role of Epistemic and Control Experiences James F. M. Cornwell, E. Higgins Psychology, Medicine Front. Psychol. 2019 View 1 excerpt, cites background Save Alert Research Feed The Socio-Moral Image Database (SMID): A novel stimulus set for the study of social, moral and affective processes Damien L Crone, S. Bode, C. Murawski, S. Laham Psychology, Medicine PloS one 2018 8 PDF Save Alert Research Feed The MAD Model of Moral Contagion: The Role of Motivation, Attention, and Design in the Spread of Moralized Content Online W. Brady, M. Crockett, J. V. Van Bavel Sociology, Medicine Perspectives on psychological science : a journal of the Association for Psychological Science 2020 20 PDF Save Alert Research Feed How does mindfulness training improve moral cognition: a theoretical and experimental framework for the study of embodied ethics. Gunes Sevinc, S. Lazar Psychology, Medicine Current opinion in psychology 2019 6 View 1 excerpt, cites background Save Alert Research Feed The time-course of moral perception : An ERP investigation of the moral popout effect Ana P. Gantman, Sayeed Devraj-Kizuk, Peter Mende-Siedlecki, J. V. Bavel, E. Kyle, Mathewson 2020 PDF View 5 excerpts, cites background Save Alert Research Feed Attentional capture helps explain why moral and emotional content go viral. W. Brady, Ana P. Gantman, J. V. Van Bavel Psychology, Medicine Journal of experimental psychology. General 2019 13 PDF Save Alert Research Feed Précis of “Cognition does not affect perception” Chaz Firestone 2018 PDF View 1 excerpt, cites background Save Alert Research Feed References SHOWING 1-10 OF 80 REFERENCES SORT BYRelevance Most Influenced Papers Recency The moral pop-out effect: Enhanced perceptual awareness of morally relevant stimuli Ana P. Gantman, J. V. Bavel Psychology, Medicine Cognition 2014 46 PDF Save Alert Research Feed Enhanced visual awareness for morality and pajamas? Perception vs. memory in ‘top-down’ effects Chaz Firestone, B. Scholl Psychology, Medicine Cognition 2015 32 View 3 excerpts, references background and methods Save Alert Research Feed A Person-Centered Approach to Moral Judgment E. Uhlmann, David A Pizarro, D. Diermeier Psychology, Medicine Perspectives on psychological science : a journal of the Association for Psychological Science 2015 149 PDF Save Alert Research Feed Do innocent victims threaten the belief in a just world? Evidence from a modified Stroop task. C. Hafer Medicine Journal of personality and social psychology 2000 167 PDF View 1 excerpt, references background Save Alert Research Feed See for Yourself: Perception Is Attuned to Morality Ana P. Gantman, J. V. Bavel Psychology, Medicine Trends in Cognitive Sciences 2016 9 PDF Save Alert Research Feed Liberals and conservatives rely on different sets of moral foundations. J. Graham, J. Haidt, Brian A. Nosek Psychology, Medicine Journal of personality and social psychology 2009 2,150 PDF Save Alert Research Feed Justice Sensitivity and the Processing of Justice–Related Information A. Baumert, M. Gollwitzer, Miriam Staubach, Manfred J. Schmitt Psychology 2011 48 Save Alert Research Feed An fMRI Investigation of Emotional Engagement in Moral Judgment J. Greene, R. Sommerville, L. Nystrom, J. Darley, J. D. Cohen Psychology, Medicine Science 2001 3,170 PDF Save Alert Research Feed Moral Psychology is Relationship Regulation T. Rai Psychology 2012 68 View 1 excerpt, references background Save Alert Research Feed Brain Responses to the Acquired Moral Status of Faces T. Singer, S. Kiebel, J. Winston, R. Dolan, C. Frith Psychology, Medicine Neuron 2004 400 PDF Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Figures and Topics Paper Mentions 8 Citations 80 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Blog posts, news articles and tweet counts and IDs sourced by Altmetric.com Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_mzyjcg7fcfdb5b6g2a65btww2e	----	Strategic elements for environmental justice / U.S. Department of Health and Human Services. ssiwict, D^ART&E £u 1/2- NT OF HEALTH & HUMAN SERVICES Public Health Service Office of the Assistant Secretary for Health Washington DC 20201 FEB ~2 **> Dear Colleague: On February 11, 1994, President Clinton issued Executive Order 12898 entitled "Federal Actions to Address Environmental Justice inMinority Populations and Low-Income Populations." Under the requirements of the Executive Order, each department within the Federal Government is developing a strategic plan to address environmental justice issues, including public participation in this process. The issue ofenvironmental justice and the implementation of the Executive Order is apriority of the U.S. Department ofHealth and Human Services (HHS). In no other component of the Federal Government does a greater capacity exist for addressing the health needs and concerns of low-income andminority communities disproportionately affected by hazardous environmental exposures. To begin the public comment period for the draft HHS Environmental Justice strategic plan, a focus group was convened in Atlanta, Georgia, on January 19. HHS also participated in amulti-agency public hearing on January 20, which featured an evening session that was televised in several locations around the United States. Because of the importance of the development of the HHS Environmental Justice strategic plan for all those interested in the costs, risks, and health burdens of environmental decisions and exposures for low-income andminority communities and workers, we are soliciting your review and comments on the enclosed draft HHS Environmental Justice strategic plan. We would like to encourage you to submit written comments byMarch 1, 1995, to: DOC HE 1.2:EL 2/2 Department ofHealth and Human Services Environmental Justice Strategic Plan / c/oOffice ofMinority Health Resource Center P.O. Box 37337 Washington, D.C. 20013-7337 FAX: (301) 589-0884 oH^ APR 1 4 \m %-CiL\'? u ■s •DEPOSITOR V Front Cover 
work_n5gum3fo25bldoztsybgzs535i	----	Microsoft Word - Corr_2014_Youth_Justice (1) Young People’s Offending Careers and Criminal Justice Contact: A Case for Social Justice Corr, M-L. (2014). Young People’s Offending Careers and Criminal Justice Contact: A Case for Social Justice. Youth Justice: An International Journal, 14(3), 255-268. https://doi.org/10.1177/1473225414549695 Published in: Youth Justice: An International Journal Document Version: Peer reviewed version Queen's University Belfast - Research Portal: Link to publication record in Queen's University Belfast Research Portal Publisher rights © 2014 The Author General rights Copyright for the publications made accessible via the Queen's University Belfast Research Portal is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The Research Portal is Queen's institutional repository that provides access to Queen's research output. Every effort has been made to ensure that content in the Research Portal does not infringe any person's rights, or applicable UK laws. If you discover content in the Research Portal that you believe breaches copyright or violates any law, please contact openaccess@qub.ac.uk. Download date:06. Apr. 2021 https://doi.org/10.1177/1473225414549695 https://pure.qub.ac.uk/en/publications/young-peoples-offending-careers-and-criminal-justice-contact-a-case-for-social-justice(0a0fbeb2-6b63-47a8-81cc-274407cf1bae).html 1 Young people’s offending careers and criminal justice contact: A case for social  justice.      Mary‐Louise Corr1    1 (School of Life, Sport and Social Sciences)  Edinburgh Napier University, UK    Corresponding author:   Mary‐Louise Corr, School of Life, Sport and Social  Sciences, Sighthill, Edinburgh Napier University,  Edinburgh, EH11 2TB, UK.   Email: m.corr@napier.ac.uk  2 Abstract  This article draws on an analysis of young people’s offending careers. The research was initiated against  a backdrop of changing discourse around youth justice in Ireland with a shift towards prevention of  offending and diversion from the criminal justice system. Locating crime and criminal justice contact  within a biographical context indicated that participants’ offending, and lives generally, was bound up in  marginalised transitions to adulthood, and embedded within social and economic environments  characterised by high deprivation. The findings support a further shift in focus towards addressing social  injustice as a necessary prerequisite to tackle the origins of youth offending.     Key words: offending careers, social justice, youth offending, Ireland    Introduction  The research which this article draws on was initiated in 2007 against a backdrop of  changing discourse around youth justice in Ireland. The reform of the youth justice  system had been underway since the Children Act 2001 (Kilkelly, 2008), introducing a  number of areas of change, most notably a shift towards the prevention of offending  and diversion of young people from the criminal justice system. Subsequently, the  National Youth Justice Strategy 2008‐2010 (Irish Youth Justice Service, 2008) set out  five goals, three of which focussed on diverting young people from offending  behaviour, promoting the greater use of community sanctions and providing a safe  and secure environment for detained children to assist their early reintegration into  3 society. On the one hand, the Strategy put forth a holistic response to youth offending  – including universal aims to promote child well‐being – yet the individualisation of the  social problem continued with a commitment to deliver programmes and services  targeted at ‘at risk’ individuals and families, considered identifiable through a process  of risk assessment, and the requirement for young people to be held accountable and  to develop ‘socially responsible behaviour’. Such developments, however, have  occurred against a backdrop of a dearth of empirical research on youth crime in  Ireland (Seymour, 2006). This study thus aimed to go some way in addressing these  gaps in knowledge.      Research context   ‘It would be difficult to comprehend an individual criminal career without also  considering concurrent, wider experiences of transition not normally surveyed  in criminology’ (MacDonald and Marsh, 2005: 172).    Barry (2006) questions the ability of existing criminological theories to explain the  course of young people’s offending careers and advocates an approach that locates  offending in the wider social context of youth transitions. A programme of research in  4 the North East of England (see Johnston et al., 2000; MacDonald and Marsh, 2005;  Webster et al., 2006) has gone some way to achieve this, using a biographical,  longitudinal approach to examine the interdependent, concurrent multiple careers in  youth transitions. In doing so, leisure, criminal and drug‐using careers were added to  the careers traditionally considered in youth transitions research (school‐to‐work,  housing and domestic). These studies explored the ways in which individual risk factors  interact, at different stages, with the structured opportunities facing young people,  seeking to understand both their active role and limited choices as well as the  historical, cultural and socio‐economic conditions of neighbourhoods in the making of  criminal careers (Webster et al., 2006: 8). ‘Failure’ to make successful transitions into  adulthood along the various career lines has been highlighted as potentially  contributing to offending. For example, Barry (2006) found that responses to ‘failed  transitions’ which involve offending can be understood as a means for young people to  gain social, economic, cultural or symbolic capital during a period when young people  have ‘few socially recognised means of legitimating their stake in the social world’  (Barry, 2007: 193). In this way, her findings echo arguments made by Craine (1994)  who identified young men who adopted illegal ways of achieving or increasing their  income as an ‘alternative career’ when they failed to attain employment. These  5 experiences resonate with Young’s (1998: 70) notion of the ‘frustration of aspiration’  that results from exclusion from the labour market:  They are cast adrift; a discarded irrelevance locked in a situation of  structural unemployment...They are barred from the racetrack of the  meritocratic society yet remain glued to the television sets and media  which alluringly portray the glittering prizes of a wealthy society.     The impact of this exclusion would not be so detrimental, it is inferred, but for  the fact that the media makes known to excluded youth the wealth and  opportunities available to others. It is out of this ‘relative deprivation’ (Young,  1999: 48) – and associated feelings of frustration and anger – that violence and  crime may evolve.     This article focuses on two areas of transition – leisure and school‐to‐work  careers – and examines the interaction of perceived marginalised positions,  located within the economic and social context of young people’s lives, and their  offending. By examining participants’ criminal justice transitions, it finds that  punitive measures further marginalise young people and suggests that responses  to offending should focus on wider contexts beyond individual criminality.    6 The study   The research aimed to understand the processes related to young people’s offending  transitions, including their initiation to offending and the subsequent course of their  offending careers. Broad criteria were used to identify young people who were eligible  to participate in the study to facilitate a sample that was diverse in age, gender and  offending history. Thirty‐seven young people, 26 males and 11 females, participated in  the study aged between 14 and 23. All participants were in contact with criminal  justice agencies in Ireland and were recruited from probation projects, individual  probation officers and a Garda Youth Diversion Project (community based, multi‐ agency crime prevention initiative).     The study was informed by an interactionist conceptualisation of criminal careers (see  Ulmer and Spencer, 1999) and required a focus on young people’s interpretations of  events and the sense that they make of their social world. The life history interview  was employed as the primary method of data collection, prioritising the  understandings and significance that people give to their lives (Chaitin, 2004: 4). It also  facilitates an understanding of offending as it interacts with multiple dimensions of  individuals’ lives. At the outset of the interview, participants were requested to tell  their life story and subsequently guided through this story, prompted to share  7 memories and offer reflections, interpretations, and insights (Haglund, 2004: 1309). In  addition to a cross‐sectional analysis, a biographical analysis necessitated the  production of individual accounts. Thus a ‘case summary’ for each participant was  prepared including observations on their offending career and significant turning point  moments, that is, ‘interactional moments and experiences which leave marks on  people’s lives’ (Denzin, 1989: 70).     Offending careers and marginalised experiences of transition    There is a danger with studies on youth offending that young people will be presented  solely in terms of their offending histories, thus neglecting their complex biographies.  A life history approach permits an unravelling of biography, thereby providing a critical  contextual backdrop to offending careers, allowing an examination of offending as it is  interwoven into experiences of making transitions through a number of  interdependent careers towards adulthood. Such wider experiences of transition must  also be located within their social and economic context.    Having been born between 1984 and 1995, young people in this study had lived most  of their lives, at the time of contact with the study, during Ireland’s most prosperous   8 times. Their accounts are illustrative, however, of social injustice, indicated by  continued poverty and inequality during times of national prosperity (Goldson, 2002).  This research was initiated towards the end of a 20 year period of unprecedented  economic growth in Ireland. This period saw a fall in unemployment and an increase in  the quality of employment with more job security, less involuntary part‐time and/or  temporary work, higher wages and a decline in long hours (O'Connell and Russell,  2007). Overall, Fahey et al. (2007: 10) stated that ‘subjective well‐being and national  morale are among the highest in Europe, living standards have risen and have done so  more or less for everyone’.     However, the rising economic tide did not lift all boats. Ireland’s already high degree of  income inequality persisted during the boom years (Fahey et al., 2007) and the gap  between those at the top and the bottom of the income distribution widened (Nolan  and Maître, 2007). Poverty and social exclusion are not evenly distributed across  regions but, rather, they are concentrated in ‘poverty blackspots’ in urban and rural  areas (Haase and Foley, 2009) and in clusters of deprivation within Dublin City (Haase  and Pratschke, 2008). Many local communities did not benefit from the economic  boom, remaining ‘very deprived’ during this period despite being the focus of  regeneration projects (Fahey, 2010).   9   There was significant experience of living in such ‘poverty blackspots’ among the  participants in this study. Nearly all the young people were residing in one of the  RAPID (Revitalising Areas by Planning, Investment and Development) areas – ‘the most  disadvantaged communities in Irish cities and towns’ (Pobal, 2014) – and in areas  where levels of disadvantage had increased between the years 1991 and 2006 or had  remained ‘very’ or ‘extremely’ disadvantaged. The impact of living in such areas was  compounded by the ‘highly localised’ (Johnston et al., 2000) nature of their lives which  have implications for a range of opportunities including leisure, education, training and  employment.     They know what kids are growing up into…They’re not going to have jobs and big  houses…If you’re raised here you’re staying here…I’d never move out of [North Dublin],  I wouldn’t be able to…Do I want to stay here? I’d love to get out of it but I can’t.  (Ronan, 17)1    Taking two elements of young people’s transition to adulthood – leisure and school‐to‐ work careers – illustrates the marginalisation in young people’s lives and the ways in  which this interacts with their offending careers. Throughout their narratives, young  10 people’s accounts did not prioritise unconventional goals but, rather, they bought into  ‘age‐related scripts’ (Giordano et al., 2003), their aspirations in keeping with what  might be culturally expected. Thus, during their early teenage years they aspired  towards ‘exciting’ leisure pursuits and quality time spent with friends. However,  accounts revealed that young people struggled with experiences of ‘leisure poverty’  (Banks et al., 1992), not only explained by structural disadvantage at an individual  level, but also at a community level with limited leisure amenities available in the  neighbourhood. Eamon depicted the inequity he felt, comparing his neighbourhood to  nearby ‘posher’ areas.    We had nothing to do and all day to do it. We just had fields, we never had a  community centre…We had fuck all, they never done anything for us, society kicked us  in the bollix. (Eamon, 21)     Young people described prolonged periods of ‘nothing to do’ unsupervised in public  spaces and attempted to account for this through the creation of excitement – a need  particularly felt by those who had left school or sought to escape adverse home  circumstances. In this context, crime enabled them to fund leisure or to create  enjoyable or ‘exciting’ ways to spend time with friends. They thus reported engaging in  11 criminal activity ‘just for the fun’ (Ronan, 16) as joyriding, theft and criminal damage  were often presented as activities that created an ‘adrenalin buzz’ or ‘thrill’ (see Corr,  2014 for a full account of this process).     Participants’ accounts of their offending in the period post onset, however, no longer  prioritised the enjoyment that offending afforded at an earlier stage. Attaining  traditional ‘markers’ of adulthood (independent living, employment, income, and  forming families) became more important during late teenage years and young  adulthood. For many, these ‘markers’ of adulthood were considered out of reach and,  for some, offending became an alternative to attain the forms of capital that  accompany these conventional achievements.     Taking school‐to‐work careers as an example, most recognised employment as a  legitimate and potential means of generating income and a majority aspired to finding  employment. However, the challenges young people confronted in finding  employment were also very apparent. Negative experiences of school and/or training  were most typically followed by ‘fractured’ or ‘extended’ transitions (Coles, 1995) into  the labour market as young people entered into training schemes or, at best, took up  sporadic, casual, part‐time employment, typically attained through local  12 neighbourhood networks, and offered few long‐term prospects. Many recognised their  lack of qualifications but also indicated poor levels of knowledge about how to go  about seeking training or employment – resulting in evident frustration: ‘You can’t just,  “everyone go out and get a job”, hold on, you can’t just go out and get a job. It’s not  that easy’ (Eamon, 21). Particular types of crime, including involvement in the drug  economy, filled a void created by young people’s lack of access to legitimate means to  attain money. Jack – whose employment history was more successful than others ‐  identified a link between his engagement with the labour market and his offending, as  crime presented an alternative for making money during periods of unemployment.     But the times…when I was off [unemployed] I’d be out committing crimes to try and get  money…You start to go desperate and you come to the point where you’re thinking  of…any sort of way to break the law to get money. (Jack, 19)    The sense of frustration was heightened for those who experienced critical moments  across a number of domains – homelessness, becoming a parent or developing drug  dependence – impacting on a need to attain alternative income and illustrative of how  transitions across other careers were also interdependent in this process.    13 I think it [shoplifting] only started when I was pregnant ‘cos that’s when I started  robbing baby clothes. Before that it was just stupid little things…going down the  [shopping centre] fuckin’ perfumes and things like that. (Sarah, 23)    While long‐term un/underemployment created a sense of financial strain, the  preclusion of entry into the world of consumption (Loader, 1996) had implications for  young people’s sense of self or status. Some accounts, like Teo’s, resonated with  Young’s (1999) notion of relative deprivation as they assessed being less affluent than  others.     I see some people in the streets, they have a BMW and I see myself and I have  nothing…Some people out there…my age, they’re totally rich…I’m poor (Teo, 19).     In addition to generating income, the elevation of status among peers, articulated  almost exclusively by young men, emerged as a perceived benefit to offending,  allowing them to present a particular image. Ciaran, for example, told that he was  ‘making more money than [his] ma’ when selling heroin, which afforded him the  opportunity to attain goods that contributed to a certain image of a ‘gangster’:  14 ‘…buying Playstations, loads of jewellery and nice clothes. Buying all me friends drink  and thinking I was a little gangster, thinking I was the man’ (Ciaran, 17).     This enhanced status was confirmed by a wider group of peers, particularly as young  people became known for their successful offending. For example, Joe reported  attracting the attention of young women in his neighbourhood who were intrigued by  the fruits of his offending.    All the young ones that wouldn’t talk to us before started talking to us…’Cos we had big  whopper cars. (Joe, 17)    Offending careers and criminal justice contact  There was evidence that careers and transitions were punctuated by ‘critical moments’  in young people’s lives which served, in some cases, to heighten their understanding of  their circumstances. Criminal justice repercussions – ranging from contact with the  Gardaí and experiences of arrest to court appearances, including periods of  incarceration – were highly illustrative of the potentially variable reactions to ‘critical  moments’. Some such moments encouraged a move towards desistance, yet similar  events appeared to propel some to further offending.   15   Fourteen participants related aspects of their contact with the criminal justice system  to their continued offending. Some of these accounts depicted the lack of deterrence  associated with the repercussions of the youth justice system given the unlikelihood of  ‘getting caught.    Sure I never got caught robbing a house and I’ve robbed a few...Only the stupid ones  get caught...cos they’re too clumsy...I’m hard to catch. (Shane, 19)    Furthermore, in the unlikely event of detection, only minor negative repercussions  were anticipated, certainly for those under the age of 18 years: ‘…I couldn’t get done  on it [shoplifting]…I was under 18. Then I got caught shoplifting again…and I couldn’t  stop laughing you know’ (Sarah, 23).    Derek echoed such indifference to detection as a young teenager, given his knowledge  of the lack of resources to detain young men under 16 years.    16 When you’re younger and you’re picking up charges, you’d be ripping them up in front  of the coppers. You get a charge sheet, you say ‘That will be part of the wallpaper, sure  there’s no beds [in Children Detention Schools]’. (Derek, 23)    Although official youth justice outcomes were dismissed as minor, ongoing interaction  with the Gardaí were viewed more negatively. Relationships with the Gardaí were  typically depicted as tense and were cited as provoking further (often violent)  offending among male and, less frequently, female respondents. Continued  surveillance by the Gardaí was viewed as unjust – young people assessing that they  were being treated differently because of their offender ‘label’: ‘If they see me they  pull me just for the craic [fun]...you’d nothing on you, they’d just stop you and search  you…any excuse’ (Shane, 19).    Respondents often described this as harassment and felt that certain members of the  Gardaí were aiming to provoke a reaction: ‘You’d say to a copper ‘Fuck off’ and they’d  arrest you and charge you for it’ (Peter, 18). More serious repercussions, however,  were evident in a number of young men’s narratives, related to interactions with  Gardaí. Ronan, whose face was swollen from a ‘beating’ he had received days before  from a Garda, described being the constant subject of Garda surveillance and violence.   17   The police are obviously looking for me every day…They won’t leave me alone...They  keep coming around and hitting me. I’m not going to take it anymore, I’m going to lose  the head. (Ronan, 17)    Ronan later recounted that he did eventually ‘lose the head’ as he ‘snapped’ and  assaulted a Garda, who was subsequently hospitalised: ‘I just got sick of them hitting  me all the time…They brought it on themselves’.    On the other hand, perhaps some narratives could be interpreted as revealing the  deterrent potential of criminal justice contact by prompting a period of reflection. For  example, Derek, quoted above as ‘ripping up’ charge sheets as a young teenager,  conveyed an attitudinal change on turning 16 which coincided with an awareness of  his eligibility for incarceration: ‘When you turn 16 it’s a different ball game...there’s a  load of places for you then’ (Derek, 23). Carly’s first court appearance, which led to a  suspended sentence, came as something of a shock: ‘that was my first time getting  arrested in a cell. I was like ‘oh my God’ and in court, yeah it was mad’ (Carly, 21).     18 Some of what young people recounted suggested a sense of criminal justice fatigue  whereby the ‘hassle’ of criminal justice contact in the form of harassment from the  Gardaí and (repeated) incarceration, was taking its toll. However, deterrent effects  were usually short‐lived and, frequently, the ultimate impact was to lead young people  to a return to offending. Some became ‘resigned’ to an offending lifestyle, seeing ‘no  point’ to desistance because they already had a criminal record: ‘Once I got one charge  they just started rolling in. So when I had a few charges I didn’t care, I goes ‘Fuck it I  have the charges now, why stop?’’(Ronan, 17). Joe’s assessment of the criminal justice  process was perhaps more calculated and he linked experiences of previous  incarceration to his consideration of engaging in more serious offending: ‘Then we  started doing burglaries, we were thinking ‘What’s the point in getting locked up for  robbing cars when we can go out and do proper stuff?’’ (Joe, 17).     Therefore, responses to offending did not necessarily serve their goal of deterring  participants from further offending, thus raising significant questions about the  appropriateness of punitive intervention in the lives of young people who offend.     Rather, having attained the offender ‘label’, young people frequently identified  barriers to their transition from a life of crime. All but one young person aspired  19 towards desistance from crime and shared aspirations towards conventional goals  (finding employment, owning a house, and having a family). Whilst respondents  reported several points at which they felt their offending could stop, nearly all  accounts demonstrated instability in this regard. Accounts suggested the impact of  ongoing negative peer relationships, substance use and unsuccessful attempts to enter  the labour market, but also included considerable reference to a history of criminal  justice contact.      As discussed in previous sections, the offending in later stages of young people’s  offending careers was largely explained as a means to accrue the capital (economic  and cultural) which comes with legitimate transitions to adulthood, not least of all  through the school‐to‐work transition. The offender label and impact of criminal  justice measures, however, in turn, limited their opportunities to earn money  legitimately, primarily because of its impact on their attempts to re‐engage in  education and/or accessing or maintaining employment. Mani successfully completed  his schooling and had been pursuing a post secondary qualification. However, this  endeavour was interrupted by court appearances, resulting in his subsequent  withdrawal from college.     20 I was in college but then court…came back on me so I had to drop out ‘cos the  guards…come looking for me in the college…Started affecting my college, family life,  my personal life, it just kept holding me back. (Mani, 20)    Others, like Eoin, who did not ‘know what way to look at [his] future’ due to ‘all these  court dates’ worried about the delay of entering the labour market due to periods of  incarceration.     If I got locked up for two years, I get out, I’d be nearly 21 then and you’re not going to  get an apprenticeship then…You could have been qualified but you’re only getting out  and you have to go looking for work. (Eoin, 18)    As respondents began to consider their future and the paths they wanted to follow,  the existence of a criminal record or a period of incarceration were considered as  potentially constraining the opportunities available to them. An inability to ‘move on’  in their lives was linked to ongoing criminal justice contact, Sarah wanting to have her  outstanding charges addressed before ceasing drug dealing: ‘I have another two  charges and I’m just dying to get them out of the way and then I’m going to be on the  straight and narrow’ (Sarah, 23). Louise also felt that she could not move on in terms  21 of finding employment until her outstanding court dates had passed, echoing Mani’s  earlier words: ‘It’s really holding me back from wanting to get out and do things…If you  were to go and ask for a job or something like you can’t take days off, “I’m in court”’  (Louise, 21).    In a somewhat vicious cycle, young people whose offending had, to a great extent,  been located in a context of a failed transition into meaningful activity now found  themselves increasingly marginalised in this context as a result of criminal justice  outcomes. Thus, punitive measures did not address the underlying processes related  to their offending and arguably exacerbated the social injustice young people  experienced.     Where criminal justice contact demonstrated the potential to aid young people’s  cessation of offending, this was focussed on addressing wider needs beyond their  criminality. A number of young people, at the time of interview, were engaged in  structured activities attached to criminal justice agencies such as attending a Garda  Youth Diversion Project or a probation project. For most, this was a relatively new  development in their lives. Participants suggested that attending a Garda Youth  Diversion Project provided structure to otherwise empty days, particularly for those  22 who had left school early or been excluded. They identified the programmes as  ‘somewhere to go’ in communities lacking in amenities as described earlier.  To an  extent, the programme addressed the leisure poverty experienced by some young  people through the provision of structured activities and the opportunity to socialise  with peers. In particular, attendees identified them as a way of ‘staying out of the way  of the police’ and some, like Ronan, wished they had started attending at a younger  age: ‘Because they would have kept me out of more trouble’ (Ronan, 17).     Those who attended probation projects did so on a daily basis and often likened the  routine to being in employment. This was considered important in establishing a  routine and minimising opportunities to get ‘bored’ or ‘into trouble’.     That’s why I’m here [probation project], ‘cos if I’m here I’m not in my house bored or  out with me mates causing trouble...It’s all about routines…do something positive with  your time. (Jack, 19)    However, it was the training aspect of attending a probation programme which was  considered vital for enhancing their options and opportunities for the future – some  viewed their attendance as a way to ‘get back on the right track’ (Sarah, 23) and to  23 address their limited qualifications due to disrupted educational experiences. As a  result, young people identified a programme as having a positive effect on their  behaviour as they were able to draw on certain resources to enable a positive change  in their lives. They thus presented their engagement as a means of accumulating  cultural capital through attaining education and accruing skills, and as a means of  taking responsibility for their future as they set about mapping a way forward.     At the same time, however, those who had attempted entry into the labour market  had done so to no avail. Such experiences were often disheartening: ‘I don’t see why  you should plan things and know quite well they’re not going to go the same way you  want them’ (Eamon, 21). Even those who may have been successful in attaining  employment at times, continued to weigh up the monetary benefits of going out to  work and the potential ‘earnings’ from crime.     You’re going out to work fuckin five days a week probably, sometimes six, slaving,  working away, hours and hours and then probably getting fucking €500 and I probably  would have made that in a day doing what I was doing. (Dara, 23)     24 In this way, even if the young person had successfully moved towards desistance, the  draw of the potential proceeds to be accrued from crime continued to exist. The  pursuit of economic capital through means other than offending continued to be  blocked as respondents failed to access the labour market.     Discussion  The above account set young people’s offending careers in the context of wider  transitions to adulthood. Strained leisure careers, contextualised by highly localised  experiences in deprived neighbourhoods, provided the setting of the emergence of  young people’s offending. Participants’ experiences of school‐to‐work transitions were  illustrative of how their marginalised positions heightened a perceived need to offend.  The relationship between criminal justice contact and offending was somewhat more  complex than a linear connection as experiences of the criminal justice system served  to propel some young people into further offending while it acted as motivation for  desistance for others. The account also depicted the ways in which criminal justice  responses served to further marginalise young people’s positions as they began to  appreciate the barriers to ‘moving on’ in their lives, particularly through access to  education and employment. It thus resonated with earlier findings that criminal justice  contact can have an adverse impact on young people’s lives and may make it less likely  25 they will cease offending (McAra & McVie, 2007). Young people’s interpretations of  this connection are vitally important for a consideration of policy designed to divert  young people from offending.    The study’s findings go some way to support the implementation of a strategy of  diversion and the limited use of punitive intervention and thus the policy direction in  Ireland has been a positive move. In particular, the findings do not support heavy  criminal justice involvement in the lives of young people, especially given that all but  one expressed a desire to desist in any case.  However, the responsibility of diversion  lies with the Garda Juvenile Diversion Programme, thus bringing young people ‘at risk’  of offending under the purview of criminal justice agents at a young age, perhaps even  before their first offence. Thus, this raises questions regarding the ability of the  Programme to effectively divert young people from the criminal justice system.     The study found that becoming ‘known’ to the Gardaí as a potential offender or ‘at  risk’ of offending may increase the likelihood of future criminal justice involvement,  irrespective of their offending behaviour, thus echoing findings of the Edinburgh study  (McAra and McVie, 2007; Smith, 2006). The ‘resignation’ of some young people to  offend given constrained opportunities as a result of criminal justice contact, in  26 particular, further emphasised the negative impact of labelling processes which hold  young people back from moves towards desistance. Goldson (2010) has similarly  highlighted these counter‐productive tendencies suggesting the complete removal of  the child from the criminal justice system:  Perhaps removing children and young people from the reach of the  youth justice system altogether, by significantly raising the age of  criminal responsibility, comprises the most effective diversionary  strategy (Goldson, 2010: 163).   A moderate version of this argument, as set out by Smith (2006: 15), recognises that  some young people involved in offending have deep‐seated problems that do not  recede with time and that more serious offending does have to be dealt with.  However, as he continues, ‘a policy of increased intervention by the juvenile justice  system is unlikely to lead to a reduction in youth offending’ (2006: 15).     The principle of detention as a last resort, given the negative impact of periods of  incarceration on young people’s ability to ‘get on’ with life, must remain the guiding  principle. Thus, supporting the greater use of community‐based sanctions for those  young people convicted of a crime, as an alternative to detention, is appropriate. This  is particularly desirable given the study’s findings on the positive impact of structured  27 probation programmes on young people’s ability to desist from crime. These  community‐based programmes, however, must address those aspects of young  people’s lives that are most closely attached to instability in terms of further offending  – employment and education/training have been emphasised here – and thus extend  their scope beyond criminality.     The responsibility for the prevention of and response to youth offending, and crime in  general, lies within the Irish Youth Justice Service and the Department of Justice and  Equality. Despite principles of diversion, strategies to respond to young people who  offend (and who are ‘at risk’ of offending) remain within the remit of the criminal  justice system. More recently, debate has drawn attention to a need to shift the focus  from criminal justice to social justice, which implies ‘providing fair and decent  treatment for all citizens across every domain including housing, health, education and  employment’ and allowing ‘personal advancement to all citizens’ (O’Mahony, 2010).  O’Mahony continues to state that ‘social justice is largely redistributive justice,  concerned with limiting, reducing or redressing the inevitable disparities that arise in  modern societies’.      28 This study’s findings support such a shift in focus to addressing issues of social justice.  Ireland always had a high degree of income inequality which persisted during the  boom years (Fahey et al., 2007). During this period of sharp economic growth,  however, levels of relative deprivation and the gap between the affluent and poor  increased, thus indicative of social injustice. Signs of an economic downturn began to  emerge in early 2008 and Ireland entered recession in mid‐2008, seeing a return to  high unemployment, falling income levels and cuts in public expenditure. Public  spending cuts, particularly cuts in social welfare, are likely to have ‘significant  consequences for poverty risks’ (Russell et al., 2010: 102) and are likely to place  particular strain on those already living in socially excluded contexts (Yates, 2012).      The rhetoric of contemporary discourse in Ireland surrounding youth justice, whilst  having all the trappings of a holistic response to youth offending, nonetheless adopts  mechanisms indicating the continued individualisation of the social problem. As this  study’s findings demonstrate, however, young people’s offending, and lives more  generally, was embedded within social and economic environments characterised by  high, and in some cases extreme, deprivation. Addressing social inequalities and  relative deprivation, therefore, is a necessary prerequisite to effectively tackle the  origins of youth offending in poor communities. That there is ‘no doubt that social  29 inequity contributes to the disaffection and alienation which expresses itself in anti‐ social behaviour’ (Committee of Inquiry into the Penal System, 1985) is not a new  argument. In fact, after 30 years, the enlightened recommendations of the Whitaker  Committee, established to investigate aspects of the Irish penal system, still hold  relevance.     ‘Given this catalogue of the major causes of criminality it is evident that  concern for social progress and equity, and pursuit of economic  development necessary to sustain it, must be the constant preoccupation of  a just and enlightened society… It is only the society which uses its  resources effectively to promote equitable progress that can hope to break  through the vicious circle of disadvantage, alienation and criminality.’  (Committee of Inquiry into the Penal System, 1985)    Funding: This research was funding by the former Children Act Advisory Board, Ireland.  Endnotes:  1. All names used are pseudonyms and identifying information has been removed.   References   Banks M, Breakwell G, Bynner J, Emler N, Jamieson L and Roberts K (1992) Careers and Identities. Milton  Keynes: Open University Press.  30 Barry M (2006) Youth Offending in Transition: The Search for Social Recognition. London: Routledge.  Barry M (2007) Youth offending and youth transitions: The power of capital in influencing change.  Critical Criminology 15(2): 185‐198.  Chaitin J (2004) My story, my life, my identity. International Journal of Qualitative Methods 3(4): 1‐17.  Coles B (1995) Youth and Social Policy: Youth Citizenship and Young Careers. London: UCL Press.  Committee of Inquiry into the Penal System (1985) Report of the Committee of Inquiry into the Penal  System [Whitaker Report]. Dublin: Stationery Office.  Corr ML (2014) Young people’s early offending: The context of strained leisure careers. Young 22(2):  113‐133.  Craine S (1994) Beggars Can’t be Choosers: An Ethnography of Post‐School Transitions in a High  Unemployment Area. PhD Thesis, University of Salford, UK.  Denzin NK (1989) Interpretive Biography. Newbury Park: Sage.  Fahey T (2010) Protecting Poor Neighbourhoods and Avoiding Housing Failure. In: Symposium on the  crisis, welfare state retrenchment and social cohesion: Lessons from social research, Dublin, Ireland, 30  March 2010.   Fahey T, Russell H and Whelan CT (eds) (2007) Best of Times? The Social Impact of the Celtic Tiger in  Ireland. Dublin: Institute of Public Administration.  Giordano PC, Cernkovich, SA and Holland DD (2003) Changes in friendship relations over the life course:  Implications for desistance from crime. Criminology 41(2): 293‐327.   Goldson B (2002) New Labour, social justice and children: Political calculation and the deserving‐ undeserving schism. British Journal of Social Work 32(6): 683‐695.  Goldson B (2010) The sleep of (criminological) reason: Knowledge‐policy rupture and New Labour's  youth justice legacy. Criminology and Criminal Justice 10(2): 155‐178.  31 Haase T and Foley R (2009) Feasibility Study for a Local Poverty Index. Dublin: Combat Poverty Agency.  Haase T and Pratschke J (2008) An Inter‐temporal and Spatial Analysis of Data from the Census of  Population, 1991, 1996, 2002 and 2006. Dublin: Pobal.  Haglund K (2004) Conducting life history research with adolescents. Qualitative Health Research 14(9):  1309‐1319.  Irish Youth Justice Service (2008) National Youth Justice Strategy 2008‐2010. Dublin: Stationery Office.  Johnston L, MacDonald R, Mason P, Ridley L and Webster C (2000) Snakes and Ladders: Young People,  Transitions and Social Exclusion. Bristol Policy Press.  Kilkelly U (2008) Youth courts and children’s rights: The Irish experience. Youth Justice 8(1): 39‐56.   Loader I (1996) Youth, Policing and Democracy. Basingstoke: Macmillan.  McAra L and McVie S (2007) Youth justice?: The impact of system contact on patterns of desistance  from offending. European Journal of Criminology 4(3): 315‐345.  MacDonald R and Marsh J (2005) Disconnected Youth?  Growing Up In Britain's Poor Neighbourhoods.  Basingstoke: Palgrave Macmillan.  Nolan B and Maître B (2007) Economic growth and income inequality: Setting the context. In: Fahey T,  Russell H, Whelan CT (eds) Best of Times? The Social Impact of the Celtic Tiger in Ireland. Dublin:  Institute of Public Administration, pp. 27‐42.  O'Connell PJ and Russell H (2007) Employment and quality of work. In: Fahey T, Russell H, Whelan CT  (eds) Best of Times? The Social Impact of the Celtic Tiger in Ireland. Dublin: Institute of Public  Administration, pp. 43‐66.  O’Mahony P (2010) Criminal justice versus social justice. In: Shifting Focus: From Criminal Justice to  Social Justice. Building Better and Safer Communities, Dublin, Ireland, 23 September 2010. Irish Penal  Reform Trust.  32 pobal (2014) ‘RAPID FAQ’ Available at: https://www.pobal.ie/FAQ/Pages/RAPID.aspx (accessed 10  January 2014).  Russell H, Maître B and Nolan B (2010) Monitoring Poverty Trends in Ireland: 2004 ‐2007: Key Issues for  Children, People of Working Age and Older People. Dublin: ESRI.  Seymour M (2006) Transition and reform: Juvenile justice in the Republic of Ireland. In: Junger‐Tas, J and  Decker SH (eds) International Handbook of Juvenile Justice. Springer Publications, pp. 117‐144.  Smith, D (2006) Social Inclusion and Early Desistance from Crime. Edinburgh Study of Youth Transitions  and Crime Research Digest Number 12. Edinburgh: Centre for Law and Society, University of Edinburgh.   Ulmer JT and Spencer JW (1999) The contributions of an interactionist approach to research and theory  on criminal careers. Theoretical Criminology 3(1): 95‐124.  Webster C, MacDonald R and Simpson M (2006) Predicting criminality? Risk factors, neighbourhood  influence and desistance. Youth Justice 6(1): 7‐22.  Yates J (2012) What prospects youth justice? Children in trouble in the age of austerity. Social Policy and  Administration 46(4): 432‐447.  Young J (1998) From inclusive to exclusive society: Nightmares in the European dream. In Ruggerio V,  South N and Taylor I (eds) The New European Criminology: Crime and Social Order in Europe. London:  Routledge, pp. 64‐91.  Young J (1999) The Exclusive Society: Social Exclusion, Crime and Difference in Late Modernity. London:  Sage.    
work_ndhp33cy3jajbj32vx3xjidpuu	----	Social justice, epidemiology and health inequalities ESSAY Social justice, epidemiology and health inequalities Michael Marmot1 Received: 11 July 2017 / Accepted: 14 July 2017 / Published online: 3 August 2017 � The Author(s) 2017. This article is an open access publication Abstract A lifetime spent studying how social determi- nants of health lead to health inequalities has clarified many issues. First is that social stratification is an appro- priate topic of study for epidemiologists. To ignore it would be to ignore a major source of variation in health in society. Not only is the social gradient in health appropriate to study but we have made progress both in understanding its causes and what can be done to address them. Post- modern ‘critical theory’ raises questions about the social construction of science. Given the attack on science by politicians of bad faith, it is important to recognise that epidemiology and public health have a crucial role to play in providing evidence to improve health of society and reduce inequalities. Evidence gives grounds for optimism that progress can be made both in improving the health of the worst-off in society and narrowing health inequalities. Theoretical debates about ‘inequality of what’ have been helpful in clarifying theories that drive further gathering of evidence. While it is important to consider alternative explanations of the social gradient in health—principal among them reverse causation—evidence strongly supports social causation. Social action is by its nature political. It is, though, a vital function to provide the evidence that underpins action. Keywords Equity � Health inequalities � Social determinants of health � Social gradient � Reverse causation I was walking in the Mall in Washington DC. For Euro- peans, that is the area of DC that was sparsely populated during Donald Trump’s inauguration as US President— much to his chagrin and child-like attempts to lie about what was evident in plain view. In the section devoted to Martin Luther King Jr., I found this quote of his, King’s not Trump’s: I believe that unarmed truth and unconditional love will have the final word in reality. This is why right, temporarily defeated, is stronger than evil triumphant. As chair, I had been telling members of the Commission on Equity and Health Inequalities in the Americas, sponsored by the Pan American Health Organisation, that we needed ‘evidence-based policies presented in a spirit of social justice’. ‘Unarmed truth and unconditional love’, perhaps, is a more eloquent way of saying the same thing. Parenthetically, the Commissioners include distinguished lawyers, specialists in health diplomacy, health care administration, women’s health, the rights of indigenous people and a former US Surgeon-General, David Satcher. Apart from me, probably only one member of the Commission, would answer to the call: epidemiologist. What, you might ask, is an epidemiologist doing with such activities and in such company. You might ask, too, if the evidence in my ‘evidence-based policies’ would pass the epidemiology quality test. An illustration from another scene: the Scottish Parlia- ment. The context: the Health and Sport Committee of the Scottish Parliament taking evidence on health inequalities from experts—(then) Scottish Chief Medical Officer, Harry & Michael Marmot m.marmot@ucl.ac.uk 1 Institute of Health Equity, Department of Epidemiology and Public Health, University College London, London, UK 123 Eur J Epidemiol (2017) 32:537–546 DOI 10.1007/s10654-017-0286-3 http://crossmark.crossref.org/dialog/?doi=10.1007/s10654-017-0286-3&amp;domain=pdf http://crossmark.crossref.org/dialog/?doi=10.1007/s10654-017-0286-3&amp;domain=pdf Burns, and me. One Scottish MP, having listened to my evidence, asked me: ‘What would you do if you were Chancellor of the Exchequer (UK Minister of Finance)?’ My response: ‘I know how lucky I am, but the people of Britain don’t know how lucky they are, that I am not the Chancellor. But what I would say to the Chancellor is that he should take no action that is likely to make health inequalities worse. Predictably, his changes to the tax and benefit system will increase the number of children grow- ing up in poverty. Other things equal, that will have an adverse impact on health inequalities.’ I claim that I have the evidence to support such a statement but it bears little resemblance to what we teach students in epidemiology method classes. The argument runs like this. Evidence shows there is a gradient in the quality of early child development—the lower the socioeconomic position the worse do children perform on standard tests of cognitive, linguistic, social, emotional and behavioural development [1]. Much of this can be accounted for statistically by par- enting activities [2]. The social gradient in early child development can be reduced by two strategies: reducing child poverty and by providing support for parents and families. Readiness for school predicts school performance [3]. Achieved educational level is strongly correlated with adult health and hence is a potent predictor of health inequalities. Such effects may be a direct consequence of education or may arise because education is associated with income, type of work, living conditions and psychological processes which are associated with health. Further, adverse child experiences are more frequent the lower the socio-economic position of parents. And adverse child experiences are linked with many predictors of adverse health outcomes: smoking, drug use, under-age sex and teenage pregnancy, domestic violence, mental illness and possibly physical illness. What I do not have is a randomised controlled trial that shows that a reduction in child poverty now will reduce health inequalities when today’s children are older adults, sixty plus years from now. Such is not the nature of the evidence on health inequalities. I have been concerned, nay obsessed, with social inequalities in health: how we understand the causes of the social gradient in health; and how action on the social determinants of health could improve population health and reduce avoidable health inequalities. I have toiled happily in this vineyard for more than four decades. In the early years it was ‘‘pure’’ research. But yesterday’s pure research became today’s applied research and, increasingly, research aimed at understanding became enmeshed with efforts aimed at policy and practice. In this essay, I want to deal with issues with which I have wrestled along the way. Should ‘‘social class’’ be a proper concern of epidemiologists? The answer for some is a clear no. Too vague and ill-defined, too freighted with political baggage, not an area for scientific enquiry. In this view, epidemiology, in investigating causa- tion, should be about establishing exposure-disease rela- tionships, not lamenting the ills of society. Poverty is lamentable and may be bad for health but let’s stick with more proximate causes that can be defined and measured. PM 2.5 can be measured, so can smoking and drinking and, with somewhat less precision, dietary intake; better still are biomarkers or SNPs. But poverty? It will mean something different in Zambia than it will in Glasgow; something dif- ferent in 1950 from what it means in 2020. What does it mean, then, to be studying poverty and health? Or, when studying the social gradient in health, as I do, being in the middle of the socioeconomic hierarchy will have different implications in Kolkata than it will in Berlin. Further, if the chain of reasoning that I laid out in the Introduction is the best I can do, it falls so far short of establishing causation, it gives the whole enterprise a bad name. My response: look at the data. Figure 1 is an updated version of Fig. 1 from Fair Society Healthy Lives, the Marmot Review of Health Inequalities in England (1), that I reproduced at the beginning of my book, The Health Gap [4]. It plots life expectancy and disability-free life expec- tancy for neighbourhoods in England classified by neigh- bourhood deprivation. There is a remarkable social gradient: the more deprived the neighbourhood the worse the health. The gradient is steeper for healthy life than it is for expected length of life. Much of the scatter around the line is reduced if we produce a family of plots such as that in Fig. 1, one for each region of England. It is worse for your health to be socially disadvantaged in the North of England than it is in the South-East. For the Marmot Review, we calculated that if everyone in England had the same death rates as the most advan- taged, a total of between 1.3 and 2.5 million extra life years would be enjoyed by those dying prematurely each year. They would in addition have had a further 2.8 million years free of disability. Or, to put it slightly differently, if everyone in England had a mortality rate as low as those with university education, there would be 202,000 fewer deaths each year of people aged 30 and above. We see gradients such as this in most countries for which data are available. And where the data are not available for adult health, we see gradients for under five mortality by household wealth [5]. To ignore the social gradient in health because you think that socioeconomic position, or degrees of deprivation, are 538 M. Marmot 123 vague round the edges, or because concern with health inequalities is politically motivated, is to ignore a major problem in health for all societies. Ah, might my critic respond, but is the link between education, or deprivation, and health causal, and, if so, what can we do about it. Answering those two questions is what I have been doing these last 40 years. The WHO Commission on Social Determinants of Health was, for me as chair, an important weigh station [6], and our European Review of Social Determinants and the Health Divide another [7]. Particu- larly with the surge in interest in many countries in the last few years [8] I have little doubt that we are making pro- gress on both fronts—research and action. Note that investigating health inequalities does not ignore research investigating whether exposure a is cau- sally linked to health outcome b. In part, work on health inequalities depends on demonstration of such causes. I adopted Geoffrey Rose’s simple phrase, the causes of the causes [9]. Smoking is a cause of ill-health but why do smoking and other unhealthy behaviours follow the social gradient—what is the cause of the cause. Exposure to high levels of PM2.5 is a cause of ill-health, but why are people lower in the social hierarchy more likely to be exposed— the cause of the cause. If looking for causal intermediaries between position on the hierarchy and ill-health takes us downstream, then looking for the causes of the causes needs to take us upstream into the nature of society that leads to, and toler- ates, stark inequalities in conditions of daily life; and inequities in power, money and resources that give rise to these inequalities in conditions in which people are born, grow, live, work and age—language that we used in the report of the Commission on Social Determinants of Health. A further word on language is necessary. For good or ill, those of us concerned with social inequalities in health have stopped using the term ‘‘social class’’. It has baggage and multiple meanings. Do we mean Marx’s two great classes, bourgeoisie and proletariat—where ownership, or not, of the means of production is key? Or perhaps the linked Weberian concept of a category of men who have in common a component of their life chances? Or an Erikson- Goldthorpe notion of span of control at work? People using the term ‘‘social class’’ might mean or all or some of these. It is unclear. We’ve also stopped using the term SES, socioeconomic status, because it implies that differences in health between social groups can all be attributed to differences in status. Full disclosure, I contributed a little to the confusion by writing a book with the title, Status Syndrome [10] which actually said little about ‘status’ and health. It said much more about how lower social position was linked to low control over life and less opportunity for social participa- tion than it did about perceived status. That said, there is evidence that perceived status may be important [11]. Fig. 1 Life expectancy and disability-free life expectancy (DFLE) at birth, males by neighbourhood deprivation, England, 1999–2003 and 2009–2013 Social justice, epidemiology and health inequalities 539 123 More common now is to use the neutral-sounding term, socioeconomic position. It makes no judgement as to the theoretical basis of the classification—a mixed blessing. No doubt, in time, it too will take on baggage. But for the moment it serves to classify individuals along a social gradient and allows investigation both of how they got there, and the health consequences of being there: causes of the causes of the causes. Positivist? As always, discussions about language are really discus- sions about ideas. When I first started researching socioeconomic differences in health, two common terms of abuse from social scientists were ‘positivist’, and ‘atheoretical’. If positivism means focussing purely on empirical observations and ignoring the ideology and structures of knowledge that we bring to our studies then such critique surely has merit. But beware. If so-called ‘critical theory’ leads to a post-modern questioning of the very possibility of objective truth, then in an age of Donald Trump where there are facts and ‘alternative facts’, where ‘truth’ is whatever feels convenient and best serves political advantage, where global warming is a hoax perpetrated by the Chinese, we are in grave danger [12]. For example, destitution is bad for health. Post- modern critical theorists may call both ‘destitution’ and ‘health’ social constructions, and question the methods we use to establish a link between the two. But if men in a deprived part of London have life expectancy 18 years shorter than men in a rich part, that is a fact that should claim our attention, stimulate research, and inspire calls for action. To put it more plainly, scholars and political activists with good motivation—critiquing the very nature of our knowledge, and showing how science is part of power structures—play into the hands of political charlatans, whose motivation is much more sinister. When Trump says that the murder rate in the US is at an all-time high, he is not being post-modern, he is lying. The murder rate is near to an all-time low. He is lying to make a political point—in his inaugural address he spoke of ‘carnage’. During the 2016 US election campaign, when official figures said that unemployment under the last year of the Obama Presidency was around 5%, Trump said it was fake and claimed that the real figure was five, six, eight times that. When Trump was President, and the unem- ployment was still at around 5% he took credit for reducing it. His spokesman quoted the President as say- ing, the figures were fake then; they are real now. Hahaha! That laugh sent shivers up and down many spines. Golly, how funny that you can mess around with official figures at will. The planet warming? Nah. A conspiracy of left-wing scientists. Facts matter. Atheoretical? As for being ‘atheoretical’, initially I was somewhat defi- ant. I said I didn’t care much whether the social gradient was predicted by education, deprivation of the area or, in the case of my Whitehall studies, grade of employment [13, 14]. The fact was that each of them showed health to follow a social gradient. The question was why. The theories that I find useful now perhaps are not very grand or high level, but they are indispensable. First, Max Weber thought of social stratification not so much as a characteristic of a person, their status for example, but a characteristic of society. We can measure individuals’ social position but that should not blind us to the fact that societies differ in their degrees of inequality. Second, and related, in the Commission on Social Determinants of Health we explicitly drew attention to what we called the structural drivers of health inequalities: inequities in power, money and resources. These are fea- tures of societies not simply of individuals within those societies. It draws heavily on Weber. Drawing on an old, but still fresh text of Mervyn Susser [15], we need to get the level of analysis right. We measure individual socioe- conomic position and examine the extent to which its link with health can be ‘explained’ statistically by smoking, or other risk factors. But that won’t tell us whether democ- racy, respect for human rights and socially inclusive soci- eties are good for health. We need, at least conceptually, a different level of causal thinking for that. Third, I have spent decades wondering which is more important: relative or absolute poverty. I am not alone. Peter Townsend and Amartya Sen tussled with this and each other three decades ago [16, 17]. In a low-income country, there is little difficulty in seeing how absolute poverty damages health. Even in a high-income country, if people low in the hierarchy have insufficient money to buy food and pay rent, absolute poverty must be important. But the social gradient surely implies relative poverty. Even here it could be questioned. The gradient shown in Fig. 1 could arise if richer areas simply had fewer people in absolute poverty. That could not, however, readily account for the gradient in health by level of education. The latter implies relative disadvantage. Amartya Sen solved it by arguing that relative depri- vation with respect to income corresponded to absolute deprivation with respect to capabilities [18]. My way of putting this is that it is not so much what you have that is important for health, but what you can do with what you 540 M. Marmot 123 have [4]. A family in a low income area of Baltimore Maryland has a median household income of $17,000. By US standards, this is poverty. Yet, on a global scale they are fantastically rich. Gross National Income per capita, adjusting for purchasing power, in Costa Rica is $14,000. Life expectancy for men in Costa Rica is 77; in the poor part of Baltimore 62. The poor of Baltimore may be rich compared to the Costa Rican average but they are poor relative to the US and that translates into absolute disad- vantage. In the poor part of Baltimore life chances are sorely diminished: single parent families, low levels of education, high probability of arrest by the age of 17, high probability of being shot. It is not so much what they have but what they can do with what they have; and that will depend on the nature of society. Sen’s ‘capabilities’ are linked to his basic notion of freedom to lead a life one has reason to value [19]. Before I knew of Amartya Sen, building on the work of Karasek and Theorell [20], I had shown in the Whitehall II study that low control at work provided a partial explanation of the social gradient in health [21]. Sen’s freedom and capabil- ities gave me the impetus to generalise. In the Commission on Social Determinants of Health we put empowerment at the heart of what we were trying to achieve: material, psychosocial and political. If theory is a way of organising one’s thoughts, an explanation of how the world works, and thus an aid to understanding and a guide to action, then the charge of being atheoretical is one to take seriously. If not a theory, then at least a model. Figure 2 was developed for the Commission on Social Determinants of Health [22]. It illustrates the multi-level nature of our thinking. Assem- bling the evidence to support this model is, of course, a major challenge. Parenthetically, I have never described myself as a ‘social epidemiologist’, although others might. I am con- cerned at the health of populations and inequalities in health. The evidence takes me in the direction of looking at how society impacts on health. That said, I feel a sense of kinship and shared orientation with those who have carved out the discipline of social epidemiology [23]. But why do you need to look at inequalities? Take action on the causes and everyone’s health improves This argument, too, has merit. Dirty water leads to pre- ventable illness. Clean up the water supply and everyone benefits. You don’t need to lament that poor people were less likely to have access to improved water supply, and that this contributed to inequality. Simply do it for everybody. Similarly with non-communicable diseases. If smoking rates decline everyone benefits. There may even be a reduction in inequality because smoking-related diseases follow the social gradient, more common lower down. Look again at Fig. 1, however. It plots the gradient for the years 1999–2003, and again, ten years later, 2009–2013. Health has improved for everyone over the SOCIAL DETERMINANTS OF HEALTH AND HEALTH INEQUITIES SOCIOECONOMIC & POLITICAL CONTEXT Governance Policy Macroeconomic Social Health Cultural and Societal norms and values Education Occupation Income Gender Ethnicity / Race Social Position Material Circumstances Social Cohesion Psychosocial Factors Behaviours Biological Factors Health Care System DISTRIBUTION OF HEALTH AND WELL-BEING Fig. 2 Model of causation of social determinants of health. Source: CSDH Final Report, WHO 2008, adapted from Solar and Irwin (Unpublished report WHO Geneva) Social justice, epidemiology and health inequalities 541 123 decade, a welcome societal achievement. When I protest, but what about inequalities, the response has been: What are you? Some kind of naı̈ve egalitarian? Go home, lie down and get over it. As Fig. 1 shows, at the same time health improved for everyone, the gradient did not change. We need to have two societal goals: improve health for everyone and reduce inequalities. One way of thinking about this is the trade-off between efficiency and equity. For example, when Manolis Kogevinas worked with me years ago, he showed that for many cancer sites, people of low socioeconomic position had worse survival than those of high position [24]. One possibility is that the poor have less favourable response to treatment. There are other explanations—later presenta- tion, worse access to treatment, less compliance—but let’s stay with biological differences for the moment. For effi- ciency, greatest health gain for a given quantum of effort and expenditure, focus on the more advantaged group. Forget the poor. Equity, of course, directs one in a different direction. But then, it is crucial to make sure that inter- ventions achieve the desired health improvements. If the intervention is ineffective, equity is little served. The challenge is not to withhold benefits from the rich, but to reduce inequalities at the same time as benefitting the whole population. The poor are always with us In all societies there will be the poor, relatively and absolutely. More accurately, all societies have social and economic inequalities. If the health gradient arises because of these inequalities won’t there always be health inequi- ties? In which case shouldn’t we stick with the one goal, improving health for everybody, and forget the second one of reducing inequalities. I have two answers. First, look again at the two curves showing the gradient in life expectancy in Fig. 1, and focus not on the extremes but on people towards the top and those below the middle. In the earlier period, 1999–2003, life expectancy of men in affluent areas, at the 80th centile, was around 78, and for men in more deprived areas, the 30th centile, was 74. Ten years later life expectancy in the somewhat deprived areas at the 30th centile had increased to 78. The health of the poorly off in 2010 is as good as that of the well-off ten years earlier. In 2000 if, contemplating the social gradient in health, we had said that we could get the health of people near the bottom of the social gradient up to that of people near the top, it would be hailed as a major boon to the disadvantaged members of society. It was done. It just took ten years. The hitch, of course, was that in that time health for those near the top had improved, too. The lesson I take from this is that if the health of the poor can be improved quickly, then there is nothing fixed about inequalities in health. The fact that the slope of the health gradient did not change despite overall improvements in health suggests we need to look upstream to social determinants of health inequity. My second answer to ‘‘the poor are always with us’’ argument is that all societies do have social gradients in health but the slope varies. In the context of a European Review of health inequalities [25], we looked at life expectancy at age 25 by education in 15 different countries [26]. The countries of Central and Eastern Europe had low average life expectancy and big inequalities. Sweden, Norway, and Mediterranean countries had long average life expectancy and smaller inequalities. We need to move from an Estonian and Hungarian level of health inequity to a Nordic or Mediterranean level. In the English Review we coined the term proportionate universalism. We were, I am, convinced by the evidence that one of the secrets to good health in Nordic countries is a commitment to universalism [27]. In Anglo-Saxon countries the default position in social policy is to focus on the worst-off. Proportionate universalism is our effort at combining these two approaches. We want universalist policies that include everyone, but effort has to be pro- portionate to need. Inequality of what? A much-used measure of income inequality in economics is the Gini coefficient. It measures how far the income distribution of individuals strays from the line of equality: 1% of the population having 1% of the total income; 20% of the population having 20%; 90% having 90%. Inequal- ity, here, applies to individuals. It turns out that when economists use the term ‘inequality’ they do mean the variability among individuals, the total variance. When we refer to inequality in public health, certainly in the UK, we mean variability among social groups. The first thing, then, is to get the language straight so that we can communicate. But, as above, a linguistic issue is commonly an ideo- logical issue. When we published the report of the Com- mission on Social Determinants of Health (CSDH) in 2008, I was asked to make a presentation about it at the London School of Economics (LSE)—one of the jewels in the crown of British Universities. A distinguished economist, invited to comment on the report, observed that for every mention of individual differences in health, there were n mentions of social inequalities, where n was a large number. Well, of course, the name was on the cover. The causes of individual differences in health may be different 542 M. Marmot 123 from the causes of group differences. There may be over- lap, but differences, too. In the CSDH, we adopted the WHO usage that flows from Dahlgren and Whitehead [28], and used ‘health equity’ to refer to those systematic inequalities in health between social groups that are judged to be avoidable by reasonable means. If not avoided they are inequitable. Hence our phrase that graced the cover of the CSDH Report: ‘‘Social injustice is killing on a grand scale’’. My own particular concern has been the social gradient in health, defined by socioeconomic position, and the importance of social determinants in leading to these health inequities. A persistent question is what about racial/ethnic differences in health. My starting position is that the same set of social determinants are likely to account for the differences in health between indigenous and non-indige- nous people in Australia, New Zealand, Canada, the US and elsewhere. Racism, discrimination and stigma will be causes of unequal distributions of these social determinants both between and within ethnic groups. There is, of course, another crucial question when it comes to ‘inequality of what?’ which I will touch on briefly: equality of opportunity or equality of outcome [29]. If politicians or social commentators are going to endorse any principle of equality, equality of opportunity is the easiest. It appeals to natural justice. In theory, every mother’s son can be US President—harder for a daughter. In practice, the conditions in which people are born and grow are so dra- matically different that equality of opportunity is a chimera. That said, politicians love to endorse equality of opportu- nity to establish their commitment to fairness. Health, though, is an outcome. As Fig. 2 shows it is the outcome of a chain of social processes. Gaining commit- ment to equality of outcomes is a different, and much more difficult proposition. It will require a focus on outcomes along the causal chain. For example, making sure there are school places for all is a step towards equality of oppor- tunity. But we should not stop there. We need to look at outcomes. In all countries, there are social gradients in performance on standard tests. They are shallow in Fin- land, steep in the US. As a social goal, with health equity in view, we should be seeking to reduce the social gradient in school performance. The mind is an important gateway by which the social environment influences health and health inequalities In the beginning were Farr, Stevenson and Florence Nightingale—statisticians who pioneered the study of social determinants of health and health inequalities in England. They begat Black [30]. Black begat Acheson [31]. Acheson begat Marmot [1]. I am, of course, referring to successive reports, commissioned by governments, on health inequalities in England. In between was Whitehead [32]. Her report was commissioned by the Health Educa- tion Authority, but a Conservative government wanted to refuse publication, and Penguin happily stepped in. As a member of the Acheson Inquiry, I pushed strongly that we should consider not just poverty and health, but the gradient. Sir Donald Acheson said: but if we consider the gradient, we will have to consider psychosocial influences on health. Correct. And we did. In my Marmot Review, psychosocial influences ran all the way through our six domains of recommendations: early child development, education, employment and working conditions, having enough money to live on, healthy environments in which to live and work, a social determinants approach to prevention. Briefly, there had been a vogue to contrast neo-material influences on health with psychosocial influences and belittle the latter [33]. I was never convinced [34]. Take, for example, the fourth recommendation from Fair Society Healthy Lives [1], everyone should have the minimum income necessary for a health life. If one were contrasting material or neo-material influences with psychosocial, having insufficient money sounds rather ‘‘material’’. But why does it damage health? Living in a cold home, for example, is bad for respiratory health; it also has an adverse effect on children’s mental health and school performance. Parents in poverty are less likely to engage in nurturing activities with their children. Mental illness and alcohol problems are more frequent with poverty. Why would you want to make such a sharp distinction between material and psychosocial influences? There is now much interesting work on the psychology of poverty [35, 36]. In fact, psychosocial influences are important in social determinants of health and health equity in at least four ways. First, early child development and education set the context for what happens through the rest of the life course; they influence opportunities and choices, work and social relationships. What are these if not processes in the mind. Second, behaviours influence health: drug use, alcohol, smoking, diet, exercises. Third, stress pathways to physical disease are crucial. Fourth, mental illness is an important consequence of social disadvantage. A paper by Case and Deaton drew attention to the rise in mortality in non-Hispanic whites, aged 45–54 in the USA—the fewer the years of education the steeper the rise [37]. The causes of death constituting this rise were: poi- sonings due to drugs and alcohol, suicide and alcoholic liver disease—all psychosocial. I would not stop there, but ask what are the structural (neo-material) causes of this epidemic of disempowerment. Social justice, epidemiology and health inequalities 543 123 Causal arrows Which way do the causal arrows go: from wealth to health, or from health to wealth? I am slow to anger and with the self-delusion that I am considerate of the opinions of oth- ers. But my tolerance has been exercised by this debate. At times, I have gone overboard and said: ALL the evidence points to social conditions causing ill-health not ill-health causing social conditions. That has to be an overstatement. If ill-health stops someone working and family income falls, the arrow is running from health to wealth. But we should not stop there and ignore the evidence of social causation, of the arrow running from wealth to health. I once asked a senior economist, President of a University, why it is that, as a group, economists have as a starting point that the causal arrow goes from health to wealth. The President said: because the equations are easier to solve if you put income on the left-had side of the equation and health on the right-hand side. Really? Certainly, an economist that I collaborate with happily told me that one of the effects of our collaboration is that his students who formerly were taught that health is an input to income and wealth are now taught that the arrow can run both ways. I suppose that even a modest achieve- ment is an achievement. The implications of these views of the direction of the arrows for policy are profound. The Journal Social Science and Medicine commissioned 8 groups of authors to write commentaries on the Marmot Review, Fair Society Heal- thy Lives [1]. My colleagues and I were invited to respond to these 8 commentaries. What follows, in this section, is from our response in Social Science and Medicine [38]. Six of the commentaries are in little doubt that we have enough evidence to take action on social determinants of health; although all, like us, want a stronger evidence base. The other two commentaries thought we had the model wrong [39, 40]. Their starting position, like that of many economists involved in the social determinants debate, is that peoples’ health determines what happens to them. The Review’s starting position was that what happens to people has a cumulative effect throughout their life course, pro- gressively affecting their health. At the time, I had been reading Dickens’s, Hard Times. I took a page on housing: In the hardest working part of Coketown,… where Nature was as strongly bricked out as killing airs and gases were bricked in… where the chimneys, for want of air to make a draft, were built in an immense variety of stunted and crooked shapes (pp. 65–66). And then a description of working conditions in a northern mill town: all the melancholy-mad elephants, polished and oiled up for the day’s monotony, were at their heavy exercise again…. Every man was in the forest of looms where Stephen worked to the crashing, smashing, tearing piece of mechanism at which he laboured. Should we really assume, that these dark satanic mills and airless places, rather than causing terrible illness and shortened lives, selectively employed sick people and those whose backgrounds accounted for all their subsequent illness? That subsequent improvement in living and working conditions, thus abating Victorian squalor, and associated improvements in health were correlation not causation? That while medical care improved health, housing also got better, and the public health profession mistook the improvement in housing and working condi- tions for causes of improved health? If proponents of this set of assumptions dropped their guard for a moment and accepted the evidence that air pollution, crowded living conditions, ghastly working conditions were causes of ill-health in Victorian times why, a priori, do they start from the position that living and working conditions are not a cause of ill-health in the twenty-first century? Why do they appear to assume that Fig. 1 in the Review, reproduced above, linking neigh- bourhood deprivation to disability-free life expectancy could all be due to a remarkable ability of people to choose places to live depending on their level of health—ill health leads to neighbourhood income, in other words? Which of their many coefficients proves that? At a regional level, it is equally difficult to see how selection explains why the social gradient is widest in the North East and narrowest in the South West, as both regions have a history of out- migration of those needing to find employment. This disagreement between commentators is not just about evidence. It is also about ideology. We think that the health gradient in Fig. 1 is a powerful demonstration of the graded relation between social and economic conditions and health. We are chastised, by Canning and Bower, for wanting a fairer society to put it right. Instead, they offer the following: The health gradient should be seen as a flashing alarm that our health systems are failing to deliver cost effective health care and a call to allocate health sector resources more effectively. Why should it? Where is the evidence for their counter assertion? They are not being more rigorous about causation than we are, as they claim. They simply have a different starting position. This is ideology dressed up, condescendingly, as methodological rigour. We would go further. Given the vast research resources that have gone 544 M. Marmot 123 into evaluating medical interventions, the lack of clear evidence that the main cause of the social gradient in health is differential access to health care, may mean that, indeed, it is not lack of health care that is the cause of the problem. Not political enough… The economists’ criticisms seem to be that, in part, our science is clouded by political motivation. A different kind of criticism is that I have not been political enough; that indeed politics can be studied as a determinant of social determinants of health. When we published the report of the CSDH with ‘‘Social Injustice is Killing on a Grand Scale’’ on the cover, Vicente Navarro praised the report [41]. He then went on to chide us for not going far enough. His view was that we know who the killers are. My response was that we had reviewed the evidence on social determinants of health. I was perfectly content if others wanted to take it to a more overtly political level. We went so far as to say that health inequalities resulted from a toxic combination of poor quality social programmes, unfair economic arrangements and poor governance—and gave the evidence to support those contentions. A related challenge to us was: ‘‘Isn’t the problem really capitalism’’. My response to this, too, is likely to disap- point. I point out that the countries with the best health, longest life expectancy, are Japan, Iceland, Sweden, and now Hong Kong—all capitalist countries. Evidence would suggest that it is not so much capitalism, per se, that is the problem but how particular capitalist societies are oper- ated. Runaway inequalities may be a feature of the US and UK; much less so, Germany and France, let alone the Nordic countries. … but social enough I have spent the majority of my academic life as a researcher, much of it on the social determinants of health. But something happened. I started wagging my finger. With growth in the quantity and quality of evidence on social determinants of health, I became more strongly of the view that failure to take action on avoidable health inequalities was unjust. If we know what to do, and we don’t do it, society is at fault. Hence my wandering in the Mall and being entranced by quotes from Martin Luther King Jr. I know the argument. The more we become committed to a position the less objective becomes our science. I was once asked by a BBC Radio Interviewer: Why should I believe you? Perhaps you are cherry-picking the evidence to support your view point. It was an astute question. I responded that, as with every scientist, I was committed to my theories, hypotheses and evidence. But the nature of science is that if we are wrong, we are shown to be wrong. If a scientist doesn’t modify his views in response to counter-evidence he becomes irrelevant. Sometimes it may take a while, but it happens. I began this essay in the Washington Mall with Martin Luther King. On the way, I indulged in a diatribe about the importance of facts. When we published my English Review, Fair Society Healthy Lives, in my note from the chair, I referred to the fact that the CSDH had been criti- cised by one country representative as ‘ideology with evidence’. I said that we do have an ideology. Health inequalities that are avoidable and are not avoided are unjust. Putting them right is a matter of social justice. But the evidence really matters. Evidence-based policies presented in a spirit of social justice. Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://crea tivecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. References 1. Marmot M. Fair society, healthy lives: the Marmot review; strategic review of health inequalities in England post-2010: [S.l.]: The Marmot Review; 2010. 2. Kelly Y, Sacker A, Del BE, Francesconi M, Marmot M. What role for the home learning environment and parenting in reducing the socioeconomic gradient in child development? Findings from the Millenium Cohort Study. Arch Dis Child. 2011;96(9):832–7. 3. Dyson A, Hertzman C, Roberts H, Tunstill J, Vaghri Z. Child- hood development, education and health inequalities. Marmot Review Task Group report2009. 4. Marmot M. The health gap. London: Bloomsbury; 2015. 5. Gwatkin DR. Socio-economic differences in health, nutrition and population within developing countries: an overview. Washing- ton, DC: World Bank; 2007. 6. Commission on the Social Determinants of Health. Closing the gap in a generation: health equity through action on the social determinants of health. Final report of the Commission on Social Determinants of Health. Geneva: World Health Organisation; 2008. 7. Marmot M, UCL Institute of Health Equity. Review of social determinants and the health divide in the WHO European Region. Copenhagen; 2013. 8. Adler NE, Glymour MM, Fielding J. Addressing social deter- minants of health and health inequalities. JAMA. 2016;316(16): 1641–2. 9. Rose G, Khaw KT, Marmot M. Rose’s strategy of preventive medicine. Oxford: Oxford University Press; 2008. 10. Marmot M. Status syndrome: how your social standing directly affects your health and life expectancy. London: Bloomsbury Publishing Plc; 2004. Social justice, epidemiology and health inequalities 545 123 http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ 11. Singh-Manoux A, Adler NE, Marmot MG. Subjective social status: its determinants and its association with measures of ill- health in the Whitehall II study. Soc Sci Med. 2003;56:1321–33. 12. Marmot M. Post-truth and science. Lancet. 2017;389(10068): 497–8. 13. Marmot MG, Shipley MJ, Rose G. Inequalities in death–specific explanations of a general pattern? Lancet. 1984;1(8384):1003–6. 14. Marmot M, Bosma H, Hemingway H, Brunner E, Stansfeld S. Contribution of job control to social gradient in coronary heart disease [authors response letter]. Whitehall II study. Lancet. 1997;350:1405. 15. Susser M. What is a cause and how do we know one? A grammar for pragmatic epidemiology. Am J Epidemiol. 1991;133:635–48. 16. Townsend P. A sociological approach to the measurement of poverty—a rejoinder to Professor Amartya Sen. Oxf Econ Pap. 1985;1985(37):659–68. 17. Sen A. A sociological approach to the measurement of poverty: a reply to Professor Peter Townsend. Oxf Econ Pap. 1985;37: 669–76. 18. Sen A. Inequality reexamined. Oxford: Oxford University Press; 1992. 19. Sen A. Development as freedom. Oxford: Oxford University Press; 1999. 20. Karasek R, Theorell T. Healthy work: stress, productivity, and the reconstruction of working life. New York: Basic Books; 1990. 21. Marmot MG, Bosma H, Hemingway H, Brunner E, Stansfeld S. Contribution of job control and other risk factors to social vari- ations in coronary heart disease incidence. Lancet. 1997;350: 235–9. 22. Solar O, Irwin A. Towards a conceptual framework for analysis and action on the social determinants of health (draft). Com- mission on Social Determinants of Health; 2005. 23. Berkman LF, Kawachi I, Glymour M. Social epidemiology. 2nd ed. New York: Oxford; 2014. 24. Kogevinas M, et al. Socioeconomic differences in cancer sur- vival. J Epidemiol Community Health. 1991;45:265–70. 25. Marmot M (Consortium Lead). Health inequalities in the EU— Final report of a consortium. 2013. 26. Eurostat. Life expectancy by age, sex and educational attainment (ISCED 1997) 2012 [updated 2012/07/27/. http://appsso.eurostat. ec.europa.eu/nui/show.do?dataset=demo_mlexpecedu&lang=en. 27. Lundberg O, Aberg Yngwe M, Kolegard Stjarne M, Bjork L, Fritzell J. The Nordic experience: welfare states and public health (NEWS). Health Equity Stud. 2008;12. 28. Dahlgren G, Whitehead M. Policies and strategies to promote equity in health. Copenhagen: WHO; 1992. 29. Sen A. The idea of justice. London: Allen Lane; 2009. 30. Black D. Inequalities in health: report of a research working group. London: DHSS; 1980. 31. Acheson D. Inequalities in health: report of an independent inquiry. London: HMSO; 1998. 32. Whitehead M, Townsend P, Davidson N. Inequalities in health: the black report/the health divide. London: Penguin; 1992. 33. Lynch JW, Davey-Smith G, Kaplan GA, House JS. Income inequality and mortality: importance to health of individual income, psychosocial environment, or material conditions. BMJ. 2000;320:1200–4. 34. Marmot M, Wilkinson RG. Psychosocial and material pathways in the relation between income and health: a response to Lynch et al. BMJ. 2001;322(7296):1233–6. 35. Mullainathan S, Shafir E. Scarcity: why having too little means so much. New York: Times Books; 2013. 36. Haushofer J, Fehr E. On the psychology of poverty. Science. 2014;344:862–7. 37. Case A, Deaton A. Rising morbidity and mortality in midlife among white non-Hispanic Americans in the twenty-first century. Proc Natl Acad Sci USA. 2015;112(49):15078–83. 38. Marmot M, Allen J, Goldblatt P. A social movement, based on evidnce, to reduce inequalities in health. Soc Sci Med. 2010;71:1254–8. 39. Canning D, Bowser D. Investing in health to improve the well- being of the disadvantaged: reversing the argument of the Mar- mot reports. Soc Sci Med. 2010;71:1223–6. 40. Chandra A, Vogl TS. Rising up with shoe leather? A comment on fair society, healthy lives (Marmot Review). Soc Sci Med. 2010;71(7):1227–30. 41. Navarro V. What we mean by social determinants of health. Glob Health Promot. 2009;16(1):5–16. 546 M. Marmot 123 http://appsso.eurostat.ec.europa.eu/nui/show.do%3fdataset%3ddemo_mlexpecedu%26lang%3den http://appsso.eurostat.ec.europa.eu/nui/show.do%3fdataset%3ddemo_mlexpecedu%26lang%3den Social justice, epidemiology and health inequalities Abstract Should ‘‘social class’’ be a proper concern of epidemiologists? Positivist? Atheoretical? But why do you need to look at inequalities? Take action on the causes and everyone’s health improves The poor are always with us Inequality of what? The mind is an important gateway by which the social environment influences health and health inequalities Causal arrows Not political enoughhellip hellip but social enough Open Access References 
work_nhwol44nwjeullaxnrndqpszz4	----	Chapter 4: Girl punch-up cases Girls, Peer Violence, and Restorative Justice Kathleen Daly Griffith University Address for correspondence Professor Kathleen Daly School of Criminology and Criminal Justice Griffith University, Mt Gravatt Campus Brisbane, Queensland 4111 AUSTRALIA office +61 (0)7 3735-5625 fax (0)7 3735-5608 home (0)7 3216-1630 email: k.daly@griffith.edu.au 20 October 2007 Australian & New Zealand Journal of Criminology (2008) forthcoming Running head: Girls, Peer Violence, & Restorative Justice Word count: 14,300 Please do not quote without the author’s permission 1 Girls, Peer Violence, and Restorative Justice Abstract Drawing on the South Australia Juvenile Justice (SAJJ) project dataset, this paper analyses youth peer violence (‘punch-ups’) with a focus on girl-on-girl assaults. My aim is to address and explain significant gaps in the empirical knowledge of gender and restorative justice, and in the aspirations and reality of restorative justice itself. Four points are made. First, of all the offence categories, the male and female punch-ups showed the least degree of offender remorse, positive movement between offender and victim, and victim satisfaction; and they showed the greatest degree of victim re-victimisation and more negative outcomes of the conference process. This occurs because offenders may ‘admit’ to offending, but deny that their actions are wrong. Second, simple gender comparisons of offender and victim orientations in a restorative process are likely to produce misleading results, unless they are keyed to particular offence categories. Third, for girls’ punch-ups, the status of ‘victim’ and ‘offender’ is contested, with both protagonists seeing themselves as ‘victims’ (or as ‘non-offenders’). Fourth, although some offending girls say their violence is justified, their female victims are hurt and traumatised, some with significant long-term effects. Implications are drawn for feminist analyses of girls’ violence and for ethical practices of restorative justice. 2 Girls, Peer Violence, and Restorative Justice In the last decade, a large literature has grown on youth and restorative justice, although scant attention has been paid to gender-based variation. One aim of this paper is to address a gap in the empirical knowledge of gender and restorative justice, with a focus on girl-on- girl assaults. A second is to explore the gap between the aspirations and reality of restorative justice itself. This gap arises, in part, because advocates have unrealistic aims, participants do not know what is expected of them nor how to act in a restorative encounter, and organisational routines may trump justice ideals (Daly, 2003; see also Trankle, 2007). My research on youth justice conferences in South Australia1 shows that it is easier to achieve fairness than ‘restorativeness’,2 sincere apologies are often difficult to achieve, and victims’ ability to recover from an offence is contingent, in part, on the distress it caused them (Daly, 2005, 2006). On a variety of measures, I find that assaults between youth (‘punch-ups’) pose significant problems for restorative justice. Punch-ups are a fruitful terrain to explore gender and restorative justice. In the South Australia Juvenile Justice (SAJJ) sample of 89 conferences, 26 percent were youth assaults, and in almost all, the victim-offender relationship was male-male or female- female. Although the number of cases is small, the data are rich: they contain in-depth observations of conferences and interviews of offenders’ and victims’ experiences of youth violence and of restorative justice. RESEARCH LITERATURE Four bodies of research are relevant to this paper: practices and research on restorative justice, studies of girls and peer violence, the advocacy and critical literatures on gender and restorative justice, and empirical studies of male and female offenders in a restorative justice process.3 I note at the outset that the literature is remiss in several respects. First, 3 analysts often give a sympathetic reading of offending girls’ violence and its justifications, and of offending girls in a restorative process, but say little about the effect of girls’ violence on female victims, or of victimised girls’ experiences in a restorative process. Second, scant attention is given to the ethical problems that arise when offenders see their acts as justified by something victims did or said. Restorative Justice: Practices and Research Restorative justice has varied definitions and referents (Johnstone & van Ness, 2007; Sullivan & Tifft, 2006) and varied practices in different legal and organisational contexts (Daly, 2002a; Dignan, 2006; McCold, 2006). My focus is on diversionary conferences for youth offenders, which is the major form of restorative justice in Australia and New Zealand. In a conference, an offender(s), victim(s), their supporters, other relevant community members, a police officer, and conference facilitator meet to discuss the offence, its impact, and how it should be sanctioned (or ‘repaired’). Around the world and with few exceptions, restorative justice practices are set in motion only after a person has admitted to an offence, i.e., they are used in the penalty (or post-penalty phase), not the fact-finding phase of the criminal process. Advocates claim that restorative justice is preferable to established criminal justice because it is a participatory and consensually-based justice, not an adversarial one. The reason that it can be non-adversarial is that it does not adjudicate crime. As we shall see in the youth punch- ups, offenders may admit to committing offences, but minimise or justify them as having been provoked by victims. This contesting of ‘facts’ sets up an adversarial encounter. A review of the empirical literature on youth conferences, drawing from Australia, New Zealand, England, and North America (Daly, 2001a, 2002a, 2003; Daly & Hayes, 2002; Maxwell et al., 2004; Maxwell & Morris, 1993; Maxwell et al., 2006; Morris & Maxwell, 2001; Strang, 2001, 2002; von Hirsch et al., 2003) finds the following:4 4 • Conferences are rated highly on measures of procedural justice, but are relatively less successful in achieving restorativeness (see endnote 1 for definitions). • Conferences reduce victims’ anger and fear toward offenders, more so than court. • For offenders, there is a higher degree of perceived procedural justice and restorative justice in conference than court processes. • Conferences increase offenders’ respect for the police and law more than court. • Victims’ sense of restorative justice is higher for cases that went to conference compared to court. • Most participants are satisfied by the conference process, although the levels of satisfaction are often higher for offenders than victims. These are general findings, and as such, they gloss over the ways in which specific offences differently affect victims’ orientations to a legal process (whether conference or court), their emotions during and after it, and their sense of recovery. Discussed more below, the SAJJ data show that some offences, coupled with offender orientations, cause victims far more distress than others. When offenders minimise offences that cause victims distress, the abilities of offenders and victims to enact ideal elements in a restorative process (e.g., offenders taking responsibility for the offence and apologising sincerely for it) and to experience benefits from the conference process (e.g., reducing victims’ fear and anger) are attenuated. Gender and Peer Violence My review foregrounds girls’ violence toward girls, although I give some attention to boys. Two findings from the literature are pertinent. First, although boys’ and girls’ peer violence may vary, it is condoned and justified by youths as a rational response to behaviour that is perceived as wrong or threatening. Second, feminist analysts differ on the degree to which girls’ violence is determined by male power and female subordination. 5 Social contexts and elements of violence Feminist analysts of girls’ violence are concerned with bringing girls’ accounts of violence to light, and with understanding its meanings, contexts, and motives (Alder & Worrall, 2004). From conversations with about 100 girls in Glasgow, Burman (2004) and her research group find that girls’ definitions of violence include both verbal and physical behaviour. Thus, when a girl verbally insults another girl, the verbally victimised girl can be transformed into an offender, who feels justified to retaliate with physical violence. Burman (pp. 95-96) finds that girls view physical violence acceptable in responding to verbal abuse in several contexts: to prevent ‘continued harassment or bullying’; and to ‘strike back in self-defense’ when subject to gossip, being called ‘a slut’ or sexually demeaned in other ways. Other justifications include retaliating for ‘stealing a boyfriend’ and the need to ‘stick up’ for oneself, friends, or family members (p. 96). From interviews of 35 girls, all urban and African-American, Miller and Mullins (2006) reach similar conclusions in identifying three situational triggers to girls’ fights: gossip and rumours, including sexual rumours; challenges over dress and reputation; and boys (p. 45). Although these triggers suggest a specifically feminine rationale for fights, Miller and Mullins argue that there are points of overlap with boys’ fights. In particular, they find that respect and readings of disrespect are ‘central to both male and female conflicts’ (p. 58) and that like boys, girls are engaged in ‘status contests’, i.e., building ‘reputations as “tough” and ... not to be “messed with”’. Lockwood (1997) identifies similar triggers for male and female peer violence. Drawing from interviews of 110 youth (largely African-American, 36 percent female) in two schools in economically disadvantaged areas in the United States, he finds that in 84 percent of cases, the students took responsibility for their actions, but denied that they were wrong. The major justifications that youths gave were retribution (retaliating for perceived harm), compliance (to stop another from offensive behaviour), defence of oneself, and 6 promoting one’s image (defending one’s honour and reputation) (pp. 4-5). Lockwood did not show whether the students’ justifications varied by gender. For gender differences in violence, Miller and Mullins (2006: 61) find that girls were less likely to use weapons, their injury to victims was less severe or lethal, and their conflicts were slower to ‘escalate to violence’. Like others (e.g., Kruttschnitt & Carbone, 2006), Miller and Mullins challenge any simple reading of female violence as expressive and relational, and male violence as instrumental. In sum, the literature on youth peer violence, like that for adults, finds that perceived disrespect is an important trigger, and third parties may instigate and escalate violence. How much do boys matter? Feminist analysts agree that girls’ peer violence occurs in social contexts of gender inequality and girls’ social devaluation, and that relations with boys play a role in triggering fights. However, some place even greater emphasis on boys and male dominance. Artz (2004: 160) puts the point boldly: ‘Girls fight other girls largely to defend their sexual reputations or their connection to a boyfriend ... [whereas] boys fight other boys to establish and maintain dominance within their group ...’. Further, Artz sees girls’ violence as alienated from themselves. This is because girls can only see themselves through a male gaze that ‘reference[s] their worth and their range of choice against the standards set by males’ (p. 162). Other feminist analysts, such as Burman, accord girls more ‘agency’ (albeit limited) and may not agree with Artz’s strongly determined view that girls’ violence reflects ‘classic oppressed group behaviour’ (p. 162). For me, Artz’s claim raises an empirical question: is the defence of sexual reputation and connection to boyfriends the major catalyst for girls’ fights? 7 Gender and Restorative Justice: Advocacy and Critical Literature The advocacy and critical literature on gender and restorative justice is strong on speculation and weak on evidence. One popular claim about gender and justice is that women’s (and girls’) orientations to justice use an ‘ethic of care’, whereas men’s (and boys’) use an ‘ethic of justice’ (from Gilligan, 1982). The former is said to be associated with relational and contextual reasoning; the latter, with a more abstract sense of rights and rules. In a simplified reading of Gilligan’s (1982) thesis, Masters and Smith (1998) argue that the ‘ethic of care’ (and women’s orientations) can be associated with restorative justice. Their arguments are reviewed and critiqued elsewhere (Daly, 2002a; Daly & Stubbs, 2006). It is right to say that feminist scholars wish to bring women’s (and girls’) experiences and ‘voices’ more fully into criminological and legal frames, but at the same time, we recognise that analyses of gender and justice must move beyond simple gender dichotomies. Almost all feminist discussions of gender and restorative justice address the ways in which it may help or hinder female victims of domestic, sexual, or family violence. Few have ventured to consider how it may help or hinder female offenders, or whether there may be gender differences in offenders’ orientations to a restorative justice process. Two exceptions are Alder (2000) and Gaarder and Presser (2006). Alder raises these concerns: the generally negative community attitudes toward female offenders may be reinforced in a conference; and offending girls may not want to tell their stories, which may give the appearance of recalcitrance and a lack of remorse. In addition, Alder traces the underlying reasons for a common perception by youth workers that girls are ‘more difficult to work with’ than boys. She suggests that some girls may be more ‘in your face ... feisty, and “difficult” ... [they] may always have been very assertive, independently minded, and “wilful” young women’ (p. 111). The consequences are that those in authority may interpret girls’ behaviour as ‘uncooperative or lacking the required subservience or 8 contrition’. The fact that many offending girls have themselves been victims of physical and sexual abuse may make it difficult for them to engage in a process where a sharp dichotomy is drawn between ‘offender’ and ‘victim’ (p. 113). Gaarder and Presser suggest that there is potential for the ‘narrative aspect of restorative justice’ to give offending girls the opportunity to describe their feelings and participate in a justice decision-making, and that ‘dialogue’ between offenders and victims may ‘reconnect’ offending girls ‘to their sense of compassion for others by putting them in direct contact with the people whom they have harmed’ (pp. 486-487). They also suggest that conferences may be able to address ‘issues beyond the immediate harm caused by crime’ such as victimisation and offending experiences, and family dynamics (p. 489). They caution against encounters between victims and offenders when offenders ‘deny wrong doing or express little willingness to change’ (p. 489). In such situations, they propose that victims be given other options than having to meet offenders directly. Gender and Restorative Justice: Empirical Studies Like the advocacy and critical literature, the empirical literature on gender and restorative justice has focused on female victims (see, e.g., Cook et al., 2006; Strang & Braithwaite, 2002). As reviewed in Daly and Stubbs (2006), a handful of studies give some insight into gender-based variation for offenders. My first study of 24 youth conferences in Adelaide, Port Augusta, and Canberra showed that conferences were highly gendered events: few offenders were female, but women were over half of the offender’s or victim’s supporters (Daly, 1996). In a second study, which reported early findings from the SAJJ data, female offenders were as self-assured as their male counterparts, and they were more defiant and less apologetic for their behaviour (Daly, 2002b). From Maxwell et al.’s (2004) study of New Zealand youth conferences, which had a large sample of 520 youth, most youth held positive views toward the conference process, although girls were less positive (pp. 150- 9 151). The girls were also described as less compliant and more challenging of the conference process than the boys; and a lower share of girls than boys said that the conference helped them to reduce their offending, although the post-conference prevalence of re-offending was less for the girls. Compared to the boys, the girls’ profile showed that higher proportions had problems growing up (e.g., experiencing violence and abuse, and running away from home) and had been reported for care and protection; the girls were less likely to say that the police treated them fairly during the police interview or at the conference. The picture that emerges is that the gap between the aspiration and reality of restorative justice may be even higher for offending girls than boys. This seems counterintuitive in that we might assume that girls are better verbal communicators and have greater interests to resolve disputes before they escalate further; and because girls are generally more law-abiding than boys, they are more compliant with adult authority and behave accordingly. At the same time, several authors suggest that because the socio- economic profile of offending girls shows even greater disadvantage and victimisation than that of boys, girls may be both more troubled and viewed as ‘difficult’ (Alder, 2000; Artz, 2004; Baines & Alder, 1996; Gaarder & Presser, 2006). These ideas receive confirmation from the sparse empirical literature (Daly, 1996; Maxwell et al., 2004), but there may be other explanations for gender differences or apparently ‘difficult’ girls. METHODS The SAJJ Project The South Australia Juvenile Justice (SAJJ) project had two waves of data collection in 1998 and 1999 (Daly et al., 1998; Daly, 2001b). The research group, which comprised five female researchers over the two years, and myself as project director and researcher, observed 89 conferences in metropolitan Adelaide and two country towns (Port Augusta 10 and Whyalla) during a four-month period in 1998. The sample was selected by offence category: eligible offences were violent crimes and property offences having personal or community victims, such as schools or housing trusts. Excluded were shoplifting cases, drug cases, and public order offences. For each conference, the police officer and coordinator completed a self-administered survey, and the SAJJ researcher completed a detailed conference observation instrument. When a conference had more than one young person or the offence had more than one victim, the SAJJ observations focused on a designated primary offender and primary victim. We sought to interview all the offenders (N=107) and the primary victims (N=89) associated with the conferences. Of the 196 offenders and victims, we interviewed 172 (or 88 percent) in 1998; of that group, 161 (or 94 percent) were again interviewed in 1999. The detailed interview schedules had open- and close-ended items.5 DIFFICULT GIRLS OR CASES? Preliminary analyses of the SAJJ conference observation data showed gender differences in the profiles of 89 primary offenders (21 percent female). The girls were less often remorseful; they were more defiant, and less likely to apologise spontaneously to victims. Were offending girls more ‘difficult’ than boys? Analysing the data further, I discovered that the experiences of boys (or men) and girls (or women) in the conference process, whether as victims or offenders, were conditioned by what brought them to the conference. These entry points are crucial in understanding gender dynamics in the conference process and several points later in time. The offence categories of ‘violence’ and ‘property’ are not sufficient to grasp these entry points. Rather, I identified seven categories, which encapsulate victim-offender relations, the sex composition of the offence, and whether the victim was personal or organisational. The four violence categories are the youth punch-ups, sexual or physical violence between 11 family members, assaults of teachers, and assaults of those unknown to the offender. The three property categories are breaking into or damaging personal property, theft (or attempted theft) of a vehicle, and breaking into or damaging organisational property. Compared to the boys, girls’ offence structures contain a substantially higher share of punch-ups and a somewhat lower share of breaking into and damaging personal or organisational property (see Table 1). [Table 1 about here] In Table 1, the offence categories are ranked from (1) to (6), which is a ranking from least positive (category 1) to most positive (category 6) on the variables tapping ideal restorative justice processes and outcomes. The ranking was constructed from over 25 variables drawn from the conference observational and victim interview datasets. A clear pattern emerged: the more an offence involved significant injury and personal distress to a victim, but was contested by the offender, the less likely the conference contained elements of restorativeness, offender remorse or accountability, or victim satisfaction, and the less likely a victim recovered a year later. Of all the offence categories, the youth punch-ups scored the least positively on restorative processes. The bi-variate gender difference in offenders’ orientations to the conference process now has a partial explanation: girls’ offence structures are composed of a higher share of the offences (in particular, the punch- ups) that are less likely to evince ideal behaviour in a restorative process.6 These findings suggest that offending girls may not be more ‘difficult’ than boys, but the dynamics of their offences that go to conference may be more difficult to resolve. GIRLS’ PUNCH-UPS My paper focuses on the character of girls’ punch-ups by describing how they came about; what occurred in the conference from the perspectives of the female researcher-observer, victim, and offender; and how the victim and offender reflected on their experience several 12 weeks after the conference, and a year later. However, readers may be interested in how the girls’ punch-ups compare with the boys’. For both, the offenders and victims had different versions of the offence and why it happened; offenders did not feel sorry for what they did, often suggesting that they were also a victim or their actions were fully justified; there were high levels of victim distress after the offence;7 and victims felt that offenders were treated too leniently. In only a minority of the girls’ and boys’ cases did the conference process have a salutary effect. Of the nine girls’ cases, four had significant problems; and in two, the victims refused to participate. For just three (or one-third) was there a degree of semi-resolution. Likewise, for the boys: of 14 boys’ cases, just five (or one-third) had a degree of semi-resolution. Face-to-face justice encounters can be ‘strewn with impediments’ (Retzinger & Scheff, 1996: 317), and these are especially evident in the punch-ups. The following girls’ cases show why. Problem Cases Traumatic punch-up Of all the female punch-ups, this was the most traumatic for the victim, Jane, who remains haunted and traumatised. She left school because of the continued harassment by the offender, Olivia, and she remains emotionally and physically distressed from it. ‘The facts’ (case 48).8 Jane (15 years) boarded a school bus with her brother; Olivia (13 years) and another girl also boarded the bus. Jane and her brother got off the bus, and Olivia and her friend followed them. The girls began to argue about something Jane had allegedly said. Then Olivia said, ‘What’s the point of coming all this way without doing something?’ She tried to grab Jane’s hair, but fell down. She gripped Jane’s hair, twisting it, and brought Jane to the ground. Olivia kicked Jane in the back and right side several times, and her friend kneed her in the head about six times. Both girls then ran away laughing. During the assault, 13 Jane was crying and yelling for help. Later, Olivia admitted to the police that she punched Jane ‘pretty hard’, but denied pulling her hair. She said that Jane had been saying ‘rude things’ about her. Neither Jane nor her parents wanted to attend the conference, and her mother was very angry about the assault. She believed the conference would be a ‘waste of time’ and ‘would push (Jane) over the edge’. Jane feared confronting Olivia: ‘I wasn’t really up to it at the time’. Thus, the only conference participants were Olivia and her mother. The conference was among the most poorly run of all that the SAJJ group observed. The coordinator was unable to control the police officer, who dominated the meeting and lectured Olivia for about 30 minutes. Olivia had not thought about the incident at all; she did not appreciate its seriousness nor its impact on Jane; and she was not remorseful. The conference outcome was to stop harassing Jane for eight months and write a letter of apology. In her first interview, in 1998, Olivia said that before the conference she was very angry and upset toward Jane. She was less angry after the conference, and upon reflection thought that the conference ‘made me think about what I should’ve done a bit more’. She ‘wasn’t quite sure what to expect’ from the conference, but hoped she wouldn’t get community service. The agreement was easier than she expected. She had praise for conferences because ‘they’re more fair than courts’, ‘they listen to you’, and ‘it gives a chance to be treated fairly’. By 1999, Olivia had some degree of contrition for what she had done to Jane. She thought ‘it would have been better if she (Jane) did turn up, because umm, we could’ve sorted it out face to face’. She hoped that with her apology letter she could make Jane feel better ‘because I don’t want her to go through life scared of me or anything’. It is difficult to reconcile Olivia’s comments with what Jane told us. Olivia and her friends continue to harass Jane: they follow her around school, taunting her by crying out 14 ‘Mummy, Mummy’ because Jane cried out for her mother while she was assaulted. Jane has a high degree of distress because ‘the incident’ was not a single event, but on-going and persistent bullying by Olivia. She reported that ‘I don’t want to go to school’, ‘I’m scared to catch the bus’, and ‘I’m scared she’ll get her friends to get me’. She was very angry toward Olivia, saying that ‘she should have talked to me and not done what she did’. Jane then relayed the source of the antagonism: Olivia thought that Jane had written remarks on the toilet wall about her. Jane said she hadn’t done this, but felt sorry that Olivia was hurt from it. In 1999, the SAJJ interviewer said that Jane’s was ‘one of the more upsetting interviews. The young girl’s life has been completely shattered by this assault’. Jane’s physical injuries were still of great significance to her: ‘I never had a headache, and now I do. I still get sore eyes; they get blurry and I get dizzy’. She is still bothered emotionally from the assault and continuing harassment. She couldn’t accept Olivia’s apology letter because it was insincere: ‘she wrote it because she had to and somebody made her. She didn’t mean it at all’. If she had to do it over, she would not have gone to the conference: ‘I’m scared of her; it would bring it all back’. Although the file shows that Olivia complied with the agreement, Jane was adamant that she had not. However, she was fearful of reprisals if she reported Olivia’s harassment. Jane believed that the agreement was too easy because ‘it didn’t teach her how wrong it was. It was like telling her that after eight months she can come back and do it again. She was laughing about it at school’. The impact of the offence has been enduring for Jane: ‘I still have physical problems. ... It changed my life heaps. I’m just scared. I haven’t been out for a year, I can’t see my friends’. She felt even more negative toward Olivia a year after the conference ‘because she’s gotten on with her life, but I can’t’. The punch-ups with significant or serious physical effects for victims were typically associated with facial scars. The next two punch-ups left victims emotionally and 15 facially scarred. The offence contexts are similar: the assaults arose during a party with rumours circulating and amplified by third parties, the offenders were not at all remorseful for their actions, and the victims felt re-victimised with insincere and non-apologetic apology letters. Shouting in a deaf ear The offender, Moira (17 years), said that the victim’s side of the story came out in the conference, but not hers. She thought that the victim, Nancy (17 years), provoked the assault by shouting in her ear. Moira has a hearing impairment. Her father put forward this reason, among others, to explain why Moira assaulted Nancy; and this upset Nancy. ‘The facts’ (case 17). Nancy was at a party, when she heard through a friend (Anne) and others that Moira wanted to assault her. Anne talked to Moira, and she then walked over to Nancy, saying that ‘Moira wants to hit you because you’re fat’. Nancy laughed at this because she is slim. Some time later, Nancy was walking past Moira, who said she was referring to Anne as being fat, not to Nancy. Nancy brushed this off, saying ‘I don’t care’. Moira said she couldn’t hear because she is deaf in one ear. Nancy approached her and repeated what she said close to Moira’s ear. Moira, who was sitting down, kicked Nancy in the stomach, and when she doubled over, she hit her on the head with a bottle. Nancy’s ear and cheek were cut, requiring stiches. Anne and her mother took Nancy to the hospital, where x- rays revealed that several ribs were badly bruised. About two months later, the police questioned Moira about the incident. She said she had been drinking and had a ‘confrontation’ with Nancy. She didn’t remember kicking her, but did remember throwing a bottle at her. The conference was held about five months after the incident. Those attending were Moira and her father, and Nancy and her mother. At the conference, Moira was not at all remorseful, although she acknowledged that ‘I shouldn’t have done it. I know that’. The 16 SAJJ observer described her as ‘defensive and a bit hostile’ and as having ‘little understanding of the consequences of the violence or the trauma to the victim’. An apology was drawn out in the conference, and at her father’s suggestion, Moira agreed to write an apology letter. Moira’s father challenged Nancy’s version of events and the degree of injury she suffered. He did this twice, which upset Nancy. She expressed her anger about the offence: ‘I can’t believe that someone would do that to me, when I don’t even know them … that’s the scariest thing’. There was no positive movement between any of the conference participants. Although Nancy remained upset by the end of the conference, she held her emotions in check and left quickly. The conference did not help her recover, and her mother thought she needed counselling. Nancy said ‘there’s nothing I can do to fix it’ (the facial scar), and ‘I have to live with this for the rest of my life’. She could not accept an apology. When interviewed in 1998, Moira focused on her side of the story, saying that Nancy told a different story from me, and I don’t agree with her story. … The police officer just read out her side of the story; he didn’t read out mine. … And I didn’t kind of hear like half of what he said. But I thought, well, there’s no point trying to argue it, but it’s best to get it over and done with. Moira said that Nancy ‘didn’t suffer as much as she acts. She wanted me to suffer more than I should. I don’t believe she had stitches’. After hearing Nancy’s story, Moira said ‘I was a bit pissed off because I didn’t agree with her story. ... I think she was crapping on the whole way through, basically, pouring it on’. She thought the agreement, which was to write an apology letter to Nancy, not to harass her for four months, pay $16 in compensation, and attend a counselling session was ‘too easy’. She expected to get community service or fines. ‘Community service, I didn’t get that, thank God. I wouldn’t 17 have liked to do it, to give up my weekends’. She was still a bit angry toward Nancy because ‘stuff she says about me these days, gets back to me. It’s crap. I wouldn’t want to talk to her or look at her’. She was satisfied with how her case was handled and had a positive view of conferences mainly because ‘it’s better than getting a conviction thing against your name’. During Nancy’s 1998 interview, both parents were concerned for their daughter and hovered during the interview. Her father signed the consent form and went to another room, but came back to sit at the table during the first part of the interview. Her mother also came in and stayed for the remainder of the interview. Nancy was angry about the agreement and Moira’s lack of compliance, and her interview responses focused largely on these elements. Moira’s apology letter was late; it was typewritten, not signed, and had little feeling. The $16 in compensation had not been paid. Without question, Nancy felt re-victimised: When we got the letter, she hadn’t even signed it. It was meant to be delivered to me within a week, and it got here like two weeks after the date … And it made me even more mad because like (the coordinator) actually asked her like how long would you need to do that. Nancy’s parents were disappointed with the conference process, the lack of follow up, and insufficient information given to them. Nancy’s physical injuries were of great significance to her: ‘she scarred me for life, really’, the reference being the cut on her cheek and ear, which required stitches. She wanted Moira to know that ‘she’s got problems that she should learn to deal with’. About the conference, she said ‘I just know that it wasn’t really fair what did happen’, again referring to the agreement, which she thought was too lenient. ‘What’s writing a letter saying sorry and having to pay $16? What kind of lesson is she learning from that?’ Nancy was ‘mad and upset’ when she heard Moira’s account of what happened. ‘She tried 18 to make it sound like, because she’d being having troubles with some girls that I know, that it was their fault that she hit me ... She twisted it ...’ In addition, Moira’s father had minimised his daughter’s behaviour. ‘Her Dad blamed the offence on her disability. They talked about disabilities for a long time’. Nancy was not at all satisfied with how her case was handled, and she left the conference upset both by the offence and what occurred in the conference. Her attitude toward Moira remained negative: ‘I don’t think anything she could have really said would have changed my opinion’. She held generally negative views of the conference process, saying she wouldn’t go to one again because ‘it was a waste of time’. In 1999, we were not successful in interviewing Moira or Nancy. For Moira, after we tried more than ten times to make an appointment and after one had been confirmed, but she didn’t turn up, she was classified a non-respondent. For Nancy, we made several efforts to reach her; but in each case, we were only able to speak to her parents, who said she’d call back if she was interested in being interviewed. In the last phone call, her father said ‘what’s the point? It was a shambles’. He was critical of what was agreed to in the conference and Moira’s lack of compliance. ‘We never got the money, and the apology letter came a month late and wasn’t signed’. ‘It was a complete waste’, a comment he made many times during the phone call. He said that we shouldn’t interview Nancy because ‘it would bring it all back again’, ... and she wants to just get it behind her. She doesn’t want to think about it’. Female honour and sexual reputation Like the last case, this assault occurred at a party with rumours flying, aided by third parties. This case differed in that the offending girl’s sexual reputation was at issue: the victim allegedly called her a ‘slut’. The offender, Britney (14 years), believed her actions were fully justified, even more so than Moira. Reinforcing the findings from Burman (2004) and Lockwood (1997), Britney believed her assault was authorised by the values of 19 her generation, pointing out the ‘different thinking’ of people in her age compared to those in ‘the system’. She explained it this way: They’re different generations … Like if I went and told the story to one of my friends, which I have, they’d just go, ‘she deserved it’, because that’s the way it is. Like, you might not think that’s the right thing to do, and the system might not think so, but in my generation, with my friends and everything, it is. I won’t take shit. I’ve put up with it for many years, and I’m sick of it. She got what was coming to her, and let’s hope it teaches her a lesson. Britney’s only regret was that she ‘made the mistake of hitting a wuss’, who reported the assault to the police. As a result, she said ‘I’m a little more careful with who I punch heads in with’. The victim, Patsy (14 years), ‘felt really upset’ by the apology letter, which she received a day before I interviewed her in 1998. ‘I felt that she accused me of being in the wrong, and that it’s my fault, I caused the problem myself’. ‘The facts’ (case 59). Britney and Patsy were at a school social. There were rumours that Britney said she ‘felt like bashing someone up’, and some people were saying that Britney was a ‘slut’ and a ‘bitch’. Patsy agreed that this was what some people were saying, but she said that she didn’t call Britney these names. Patsy was standing with friends when Britney confronted her about whether she had been calling her names. Patsy said she didn’t and tried to move away. Britney then grabbed her and punched her in the face with her fists, cutting Patsy’s face with her rings. The next day, Patsy went to the clinic; she had a black eye, injuries to her ear, and bruising to the neck. Some time later, she found that her eyelid was damaged and looked droopy. It was uncertain if it could be fixed. More than six months elapsed from the incident to when the police spoke with Britney (the reason for this delay is not clear, but it may be related to Britney’s pending court case, as described below). Britney’s explanation for the assault is that Patsy called her a 20 ‘slut’. She added that she had had ‘a bad day’ and wasn’t in any mood ‘to take shit’ from people. She believed that Patsy was jealous because Britney was with a male friend of Patsy’s, and this was why she was calling her names. The police report said she was ‘sorry for her actions’, and recommended a family conference because ‘it will give the accused an opportunity to apologise to the victim and make her accountable for her actions’. The conference was held about seven months after the incident, and contrary to the police officer’s expectations, Britney neither apologised nor was made accountable for her actions. Attending the conference were Britney, her youth worker, Patsy, and her parents. Before the conference began, Patsy was nervous about meeting Britney; and during the conference, she was very quiet. By contrast, Britney was confident, self-assured, mature, and well-spoken. Although there were many openings, Britney offered no apology to Patsy, and there was no positive movement between them. Both girls disbelieved the other’s story, but neither pressed each other about it. Patsy’s mother did most of the talking for her daughter, and over time, Britney became increasingly defiant. There was a long break when Britney was supposed to discuss the agreement with her social worker, but they discussed other things. The agreement, which was to have Britney work at a nursing home, where Patsy’s mother works, seemed a bit restorative on the surface. A good deal of time was taken in deciding how many hours Britney should work because Patsy and her parents did not know what was appropriate; they ended up agreeing to eight hours. In addition to the frosty relations between Patsy and Britney, the coordinator and police officer also had problems communicating with each other. None of the expected benefits of the conference process was apparent, despite the efforts of the coordinator and Patsy’s mother. 21 When interviewed in 1998, Britney was clear on what happened that night she punched Patsy: She lied. She did call me that (a ‘slut’) to my face. I knew it, and she knew it, but I don’t think she wanted to say anything in front of her parents ... That’s the only reason that I hit her. You think I just go around starting on people? I’m not like that. You have to do something to get me angry. It’s just a simple fact. She said that Patsy’s account of what happened made her angry because ‘she lied about it. … She said she didn’t provoke me’. When asked if she was surprised about anything that Patsy said, Britney minimised the impact of her violence: ‘What surprised me was, if she was that beaten up, why would she want to go to school the next day, why didn’t they take her to the doctor straight away?’ She felt unfairly treated by Patsy: ‘I could see her grin. She was laughing at me because I got into trouble, and she started it’. She thought the agreement was fair and very easy: Because it was not a very harsh punishment, and I was happy with it when I left … I didn’t have a problem with it…. Only eight hours community service, like one day. [And did you have to do an apology?] Yeah, a written apology. Only like one sentence. [Really? Was it half-hearted?] I just said, ‘I’d like to apologise for what happened that night, you and I both know the truth, maybe you can take it into consideration’. I wasn’t threatening her, I wasn’t rude about it. Britney assumed she would be asked to pay compensation, and she thought she would get more hours of community service. ‘I didn’t actually think about how much I’d get until I heard about all that crap with the cat-scans and all that, x-rays, like “oh, God”’. There was no link in her mind between the eight hours of community service and making things right for her and Nancy. Several months after the 1998 interview, Britney was in court on charges related to a police raid on her mother’s house, which occurred about a month after the SAJJ assault, 22 but before the SAJJ conference. Britney was caught with a substantial amount of money (she said AU$60,000) as she attempted to leave the house. One offence was proved, and she had to pay a fine and court costs. Some time later in 1998, her mother was prosecuted on drugs and weapons possession charges, convicted, and sentenced to serve time in prison. When I interviewed Britney in 1999, her mother had more than two years remaining to serve in prison; and Britney was visiting her weekly. Although now just 15, Britney lived in her own apartment, where ‘I get heaps lonely and miss my family’. What she remembered most from the conference was ‘that Patsy girl lying. That’s all I can really remember ... telling a story that both she and I knew was not true ...’. She said that the reason she agreed to write an apology was ‘truthfully, just to get me off’. She wasn’t at all sorry for the assault and felt she was pushed into writing the letter. At the same time, she said ‘I know what I did was wrong’. Four things were uppermost in Patsy’s mind in the 1998 interview: Britney’s insincere apology letter, what actually happened on the night of the offence, regret that she and her parents had asked for too few hours of community service, and the effect of the assault on her facial appearance. Patsy and her parents were upset with the apology letter, and they had been in touch with the conference coordinator about its quality and content (‘it was a joke and an insult’). Patsy and her parents came to the view that the number of hours of community service was insufficient because of a comment the police officer made. At the end of the conference, Patsy recalled that ‘he said that if this was his case, he would have given her 25 hours community service, and we only got eight because neither me nor my parents knew what time would be satisfactory without being too harsh’. Finally, there were major concerns about nerve damage to her eye and the likely high medical costs if a specialist was required. Patsy wanted to be clear on what actually happened that night: 23 She said that I went up to her and said she was a slut, or that she came to me and asked what did I say, and I said, ‘a slut’. That shocked me because I’d heard that from seven or eight different stories, so I was pretty much shocked. [So you were shocked because that’s not how you remembered it?] No. … [Just so I know ... Your understanding is that you didn’t say ‘you are a slut’, but you said ‘some people are saying that you are’, and that is an important difference for you.] Yes. [OK, so that is the point where your stories seem to differ.] Yes, ’cause I could see, if I did call her a slut, I could see why she would bash me because not many girls like to be called that. And I mean I wouldn’t. I said it the way I said it, which is I never called her a slut. The difference between saying ‘some people are saying you are a slut’ (Patsy’s memory of what Britney said) and ‘you are a slut’ (Britney’s memory of what Patsy said) was significant for both, and it created allegations of ‘you’re lying’ by both girls. Patsy was anxious about seeing Britney at the conference: ‘I was really frightened that she was going to lash out at me’. Her attitude toward Britney was negative and did not change as a result of the conference. When asked why, she said ‘Just her attitude. She seemed to me and my parents as if she had to go there so she just went … She didn’t seem to care at all about what happened’. Despite her many criticisms, Patsy said she was satisfied with how her case was handled. Her reply raises questions about what ‘being satisfied’ means for a crime victim, but in her case, it appears to be an ability to participate in a face-to-face encounter, even if she said very little, was insulted by the apology letter, and thought the outcome was too lenient. In 1999, Patsy’s views on both the conference and Britney remained consistent. She believed that Britney was not at all sorry for what she did and was pushed into writing an apology letter. Her eye lid injury continued to bother her. ‘I keep getting questions about why is your eye like that? [Can you show me what happens?] The lid comes down 24 a bit and the eye looks smaller’. During the interview, Patsy showed me what the problem was, and I compared her eyes. There was a droop, although subtle and imperceptible at first glance. Patsy has had and will have considerable out of pocket medical expenses to tighten the muscles around the eye: her mother phoned the SAJJ office to report the current amount was $2,000 several weeks after the interview. They are pursuing a criminal injuries compensation claim. Patsy had lingering emotional effects from the incident and had not fully recovered from it. The main reasons were the apology letter, ‘it was a slap in the face basically saying it was my fault for me getting bashed’, and on-going problems with her eye, ‘we don’t know if it can be fixed, or if it’s going to be worse’. The incident affected her mother, who has become more protective of her and restricts her social activities. Changing her view from 1998, she said she wished her case had gone to court, rather than to a conference ‘because the way she treated the punishment, I preferred court’. Deep-end offender In this inter-racial assault, the offender, Terry (14 years and Aboriginal) has been in trouble with the police many times, both before and after the SAJJ case, mainly for theft. She had already attended two conferences as an offender on the day we observed her, and the SAJJ case was her third. (This is not a recommended conference practice.) She and the victim (Anita, 14 years) had sharply different accounts of the conference process. While Terry is entirely negative, Anita commended it, saying that it had a positive impact on her, and hoped that it did so for Terry. ‘The facts’ (case 82). While at school, Terry came up behind Anita and stepped on the back of her heel. She apologised, but then did it again. Anita turned and said, ‘Stop it, go away’, and Terry punched her in the face several times, took her glasses and threw them in the bin, and hit her again. A teacher intervened and stopped Terry. That evening, while Anita was at work, a person continually rang, asking 25 for Anita. After a while, she took one of the calls; it was Terry, who ‘was being very aggressive’ and said ‘you stupid bitch’. Later in the early hours of the morning, there were more calls to Anita’s home: the phone would ring, and when Anita’s parents answered it, the caller hung up. Terry says that Anita hit her first, but she did admit to hitting Anita after throwing her glasses in the bin. The police say that Terry has ‘no contrition for her behaviour. She seems to think she can do what she wants’. The conference was held two months later. Attending were Terry, her mother, Anita, and her mother and stepfather. The SAJJ observer described Terry as ‘sullen and unresponsive ... She doesn’t want to be here, doesn’t want to be told what to do’. She showed little remorse because she believed that Anita provoked the assault. Terry had apologised right after the incident in school; for this reason, she offered no apology at the conference. Terry’s mother was highly critical of her daughter’s attitude and behaviour. There was no positive movement between the two girls although there was between the parents. The conference unravelled during the discussion of the agreement. Terry had not been attending school, and part of the outcome was for her to attend a learning centre four days a week for ten weeks. She did not want to sign the agreement, but relented after being pressured by everyone at the conference. She couldn’t wait to get out of the conference room and was crying when she left. The researchers who interviewed Terry in 1998 and 1999 said it was difficult to conduct the interviews. In 1998, the researcher said it a ‘nightmare interview. She is a nasty, angry kid ... extremely uncooperative and disinterested, rude and offhand’. In 1999, a second researcher noted ‘this interview was most difficult because the most that the young person would say was “I don’t know” and “nuthin”. Apart from these words, “fuckin” was the most commonly used word’. 26 Terry felt unfairly treated by the coordinator (who was Aboriginal): ‘He’s a bastard. He made me sign the contract. I had no choice’. While she thought that Anita treated her fairly, Terry did not feel at all sorry for her, nor was she affected by what Anita said at the conference: She’s probably making it up. [You thought she was lying?] Yeah, probably. As if that’s true. Crap. [But you didn’t argue the point at the conference?] Nuh, couldn’t be stuffed. [Did she say anything that surprised you?] Yeah, she was saying that she was actually shaking and all that. [Afterwards?] Yeah, that was crap, bullshit. Terry ‘didn’t care about’ the conference and was not at all satisfied with it. She was most critical of the agreement, which she described as too harsh and very unfair because ‘they made me go to that crap school. [The learning centre?] Yep. [And you’ve been and don’t like it?] Nuh’. She said that both the police officer and coordinator lectured her too much, and that she was pushed into things she didn’t agree to. She said it was unlikely she’d get into trouble again because ‘I’d probably have to end up going to that dumb school’. (She was involved in six separate incidents in a ten-month period after the SAJJ conference.) All her views of conferencing were negative: ‘they’re crap’ and ‘it’s a waste of time’. Her negative views largely centred on the coordinator’s ‘making me go to that school’. In 1999, Terry said she remembered little from the conference. She didn’t want to apologise because ‘it wasn’t my fault’. She completed the agreement, but she did so only to avoid going to court. When asked about why she got into trouble again after the conference, Terry said she didn’t know why, but among a list of reasons provided, the one she selected as most important was that ‘it’s fun’. She thought that while the conference process was more fair and she had more of a say, it was more of a joke than court. Neither conference nor court made her think twice about re-offending. 27 In 1998, Anita reported a more positive experience with the conference process than Terry. Although Anita’s physical injuries were only a bit significant to her, she had a high degree of emotional harm after the incident. She ‘avoided’ Terry and was ‘scared to be around her’. She felt negative toward her before the conference, but she felt positive after, citing the process and meeting Terry’s mother as the main reasons. She hoped that the conference would ‘sort out Terry’s life and the problems she’s got’. She hadn’t thought about what she wanted to say to Terry before the conference (‘I didn’t want to talk with her’), but she was concerned that Terry would ‘get mad and everyone would gang up on her’ at the conference. She felt sorry for Terry because she was ‘young and in so much trouble’, and she thought it likely that she would get into trouble again because of ‘the sort of person she is’. Anita praised the conference process as ‘good and helpful’ and thought that victims could gain ‘their peace of mind’ when meeting offenders. In 1999, Anita continued in a highly positive vein. She had no lingering emotional harm and had recovered from the incident: ‘It wasn’t a big deal to me’. She still felt positive toward Terry because ‘I’ve seen her a few times, so probably that’s helped. [How has that helped?] Because I’ve talked to her, and I’m not really bothered by it anymore’. She was glad to be at the conference ‘so I could have a say, and I saw everything that happened’. While Anita’s experience of the conference was positive, for Terry, it was just the opposite and a total waste of time. Compared to other girls’ punch-ups, the offender and victim were the widest apart when judging the conference process and impact. Terry’s mother believed that a conference ‘wouldn’t work and would be a waste of time’ for her daughter. Is Terry a ‘difficult’ girl or something else? She was angry, had little respect for adult authority, and enjoyed the fun of lawbreaking. 28 Semi-Resolution and Positive Change Three cases showed that a degree of semi-resolution and positive change can come from a face-to-face meeting. The victims were relatively less affected by the assault, physically and emotionally, and the offender and victim wanted to put the incident behind them. Two cases are presented.9 ‘Sort-of’ friends In this case, the girls had been friends for three years, and the victim, Eve (12 ½ years) tried hard to bring the offender, Susan (about to turn 13), around during the conference. The police report suggests that their relationship is ‘an on again, off again affair, with problems caused by rumours and allegations’. It also notes that the girls’ parents ‘seem to have a bit of animosity toward each other as a result of the girls carrying on’. Despite this, it came out in the interviews that the girls, especially Eve, wanted to resolve their problems and be ‘sort-of’ friends. ‘The facts’ (case 61). Eve approached Susan on the sidewalk outside school, requesting that she ask the school bus driver to wait for another person. Susan called Eve a ‘bitch’ and started punching her. She hit her in the back and Eve bent forward trying to get away. When she did this, Susan grabbed the back of her hair and pulled Eve around by the hair. She continued to punch Eve in the back and kicked her in the right knee. A police officer observed the fight and intervened, saying that it was ‘totally one-sided, and at no time did Eve hit Susan or defend herself’. Eve was very distressed and crying so much that she had trouble catching her breath; she was too fearful to take the bus home, so the police officer gave her a lift. She had a sore back and a lump on her forehead. Susan’s version was she thought that Eve was going to walk into her, so she pushed her away. She said that Eve punched her and they both started punching each other. Susan said she wanted 29 to talk with Eve about things she was saying about her, calling her names and ‘spreading secrets’. The conference was held two months later. Attending were Susan and her mother, Eve and her father. The observer described Susan as ‘hard as nails’: she was not at all remorseful, a little defiant, and didn’t want to apologise. Eve was effective in describing the story, saying ‘I was heaps scared, and inside me was all shaking’. Eve wanted to be friends again, but Susan was unmoved, even when Eve cried. Susan’s mother said that her daughter had planned to apologise and give Eve a hug during the conference, but the discussion put her under some pressure, so she didn’t. There was little positive movement between the girls, but there was between Susan’s mother and Eve’s father. After the conference was over, the parents and the girls left talking and laughing. Susan’s mother said to Eve’s father that if ever there was any trouble, to let her know. Despite what appeared to be an unmovable offender, Susan’s interview revealed that the conference had a salutary effect on her. She said she was ‘kinda looking forward’ to the conference so ‘we would be friends again’. Listening to Eve’s story had a major impact on her. ‘Some of the things she said made me feel like really bad and stuff and like made me want to be her friend again’. She said she felt very sorry about Eve after the conference was over: ‘She’s changed a bit, and most of what she said at the conference made me feel sorry for her’. She was satisfied with how her case was handled, and she said it was unlikely she’d get into trouble again because she didn’t want to jeopardise her chances of becoming a lawyer. Eve’s physical injuries and emotional harm were moderately significant to her. Before the conference, she was ‘heaps angry’ and ‘heaps scared’ of Susan. One thing she hoped wouldn’t happen was ‘to see Susan cry. I sort of care for her still, she was my best friend. [Why didn’t you want to see her cry?] I don’t know; if I see anybody cry, even people on the street crying, I start crying’. She said that Susan’s story had little impact on 30 her because ‘what she said in her statement … was so untrue’. Susan said to the police that she said to a friend, ‘hold my books, I’m going to talk to Eve’. But Eve said a witness heard her say, ‘hold my books, I’m going to smash Eve’s face’. Eve thought the agreement was fair, though a ‘little bit easy’. (Susan only had to apologise at the end of the conference.) ‘There was no point keeping enemies. Like I don’t want to be her friend or anything, but I don’t want to be her enemy’. Her attitude toward Susan shifted from negative to a bit positive. Her reasons were that Susan showed remorse and ‘now she avoids me, doesn’t talk to me, just says hello, and doesn’t cause trouble’. Eve’s comments give us an insight on what a resolution with Susan would be: not close, but not fighting either. She was satisfied with how her case was handled and had high praise for conferences: ‘you do get, like a good result and stuff, and they do get a punishment’. In 1999, the SAJJ researcher had difficulties eliciting responses from Susan, and some responses were contradictory. For example, when asked why she said sorry, her response was ‘cause I had to. I didn’t mean it’. Then, she said she definitely wanted Eve to know that she really was sorry. She was close to tears about 20 minutes into the interview when asked about how others think of her. It then became clear why she was upset (and perhaps giving inconsistent answers): her mother had recently reported her to the police for smoking marijuana in her bedroom. In her 1999 interview, Eve believed that Susan’s apology was not sincere, that she apologised to get off easier, and was not really sorry. However, Eve is not bothered today by the assault and has no lingering emotional problems. She feels positive toward Susan because ‘she doesn’t bitch as much’. They still see each other at school and on the bus, and they occasionally talk to each other and are ‘sort-of’ friends. She thought the conference resolved their problems ‘a little bit’ and remains satisfied with how her case was handled. 31 Name calling and apologising back Compared to the previous case, this case shows that a more positive conference can occur when a victim’s injuries are not serious or does not have lingering effects, and an offender does not minimise the harm and is apologetic. It also shows that other events, far removed from the legal process, can affect a youth’s maturity and outlook. The ‘facts’ (case 81). The victim, Karen, and the offender, Liz (both 14 years) were at a teen social club. Liz called Karen a ‘slut’ and threw a can at her. Karen said, ‘speak for yourself’. Liz bit her wrist, then grabbed her and punched her in the mouth. As she was leaving, Liz said, ‘get anyone on to me, and I’ll bash your head in’. Both before and after the incident, Karen had been harassed by Liz and some of her friends. Liz called her a ‘slut’ and a ‘whore’, waved her fist at her and gave her the finger. She claims that Karen called her a ‘slut’ first. Some months before, Karen witnessed Liz’s friends hurt an elderly man; and the police think that Liz is trying to intimidate her. The conference, which took place in the country town of Whyalla, was convened about five weeks after the incident. Before the conference began, Karen, Liz, and their mothers were standing outside the community hall. The two girls did not speak to each other, and neither did their mothers. This seemed an inauspicious start. However, during the conference, the mothers communicated well with each other, while their daughters were quiet. Liz was a bit remorseful for her actions, although an apology had to be drawn out. She was generally non-communicative and a bit sullen, although cooperative. As the conference proceeded, there was some positive movement between her and Karen, when both apologised for what happened. Both agreed to try to stop the negative behaviour, although there was some wariness between them. There was stronger positive movement between their mothers, the SAJJ observer noting that the ‘Mums ran the show a bit’. Although the conference itself did not evince a high degree of restorativeness, especially 32 between Liz and Karen, a year later the matter was closed for both of them, and they had positive memories of the conference moving them along. Two themes emerge from Liz’s interview in 1998. First, she felt that the conference was unfair because I couldn’t say what I was thinking. And I know that most of the story that Karen said was a lie, but I still had to apologise ... Her story wasn’t even the truth. So I couldn’t even say to, ask her why she lied or anything, ’cause I’d get in trouble. I don’t think it’s very fair. This comment explains why Liz was quiet at the conference, and it reflects the belief held by all the punch-up offenders that their victims were not being completely truthful about what happened, but that it was better not to challenge the victim’s story or police officer’s report. A second theme, which is unusual for many punch-up offenders, was that Liz felt ‘kinda very sorry’ for Karen. When she heard Karen’s story, she ‘felt more sorry for her, I s’pose. I felt bad. [Could you tell me why you felt bad?] For actually hitting her’. She said she ‘kind of learnt my lesson. Kind of learnt how I would feel if it was the other way around’. The mutual apology that occurred in the conference was important for her. When asked about the degree of importance of apologising to Karen, she said, ‘It was kinda in between. It was important, but it was more important because she apologised back for what she did’. Liz was positive toward the conference process because ‘instead of just getting in trouble ..., you kind of get to sort things out as well’. Karen’s account of the offence differed from Liz’s. Whereas Liz maintained that Karen started the name calling, Karen said it was the other way around. And although Karen said she was satisfied with the conference and thought the agreement was about right, she left the conference upset by what Liz said ‘because it all came back to me as if I started it, like name calling and stuff’. Her physical injuries were not of much significance, and she had a low to moderate degree of distress from the incident. Her 33 attitude toward Liz shifted more positively, and she credited this to Liz’s willingness to make things right and to her ability to tell Liz how she felt. She was positive toward the conference process because you can ‘get to the bottom of the problem and sort it out’. When I returned in 1999 to interview Liz, I saw a transformed, mature young woman. In the past year, her mother has been sick with cancer, having been diagnosed about five months after the 1998 interview. While Liz’s mother was in an Adelaide hospital, about a five-hour drive away, Liz had to look after herself. She decided to do better in her school work ‘to make my mother proud of me’. She received all A’s on her report card, whereas in the previous year, she had ‘mucked around’ and didn’t do well. When her mother returned home from the hospital, Liz cared for her and ran the household, cooking and cleaning. She was confident and self-possessed. When she recounted what had occurred over the past year, how she felt toward her mother, and her sense of accomplishment and pride, I was moved emotionally. In the sequence of questions about the apology process, Liz’s answers seemed to be contradictory, but upon reflection, they revealed the subtleties and nuances of the apology process in the punch-ups. Liz began by saying she said sorry ‘because if I didn’t, I’d just get into more trouble’. She wanted to let Karen know that she was really sorry, but at the same time, she felt pushed into it. Ultimately, she said that while ‘I felt pushed into it, I would have said it anyway’. She hoped that in saying sorry, she could make Karen feel better ‘‘cause, you know, she doesn’t feel safe walking around, and I know how uncomfortable it’d be’. Saying sorry made her feel better ‘because it kinda took a load off my chest. I don’t walk around every day punching people’. The agreement, which was a three-month good behaviour bond10 and a conference verbal apology, was about right, although ‘it should have been a bit harder’. Liz stayed out of trouble in the year after the conference, in part because she decided she just wouldn’t get into trouble, and in part, because she understood its negative impact on her mother. 34 In 1999, Karen said she had fully recovered from the incident and had no lingering physical or emotional problems. She attributed her recovery to the fact that ‘we both acted like adults and put it behind us’. She cited the conference process as the most important element in helping to put the offence behind her. She believed that Liz was really sorry, and this made Karen feel more positive toward her. It was more important to Karen that she received a genuine apology rather than Liz doing work or paying money because ‘her paying for it wouldn’t like pay for what she’s done sort of thing. [Can you say more about what you mean by that?] It just doesn’t repair what she has done. [So tell me why the money doesn’t matter?] ‘Cause it was a physical thing and didn’t have anything to do with money’. Karen’s comments alert us to the different contexts when an apology, by itself, may or may not be sufficient for victims. For her, there was no nexus between the assault and Liz paying money or doing work. Rather, the vindication of the assault would come largely (although perhaps not exclusively) from an offender’s apologetic position. Of all the youth punch-ups, Liz and Karen’s case was exceptional in being the only one in which both definitely agreed that the offender was really sorry. Theirs was an unusual punch-up in that some of the ideal elements of the conference process and outcome were present. Family Conflicts and Harassment In the following cases, the assaults were part of on-going conflict between the girls and members of their families. Both took place in Port Augusta and involved Aboriginal girls; and for both, the victims did not attend the conference, nor were we able to interview them.11 There is no indication that the conflict continued, but because the victims (and their family members) refused to participate in the conference process, there was no semi- resolution to the conflict either. 35 Sticking up for family Although the assault occurred in Port Augusta in July, at the time, the offender, Roxanne (17 years) could not be located for police questioning. She was reported in October when the police arrested her on ‘other matters’. She made no admissions to the police, and the case went to court in December. It was in court for six months before being referred to a conference, which was immediately scheduled in June, nearly a year after the incident. ‘The facts’ (case 87). Late one Saturday evening, the victim, Kathy (17 years) was leaving a club and about to get into a taxi. Roxanne called out her name, and she went back toward her. When she did so, Roxanne started to pull her hair and then she punched Kathy in the face three or four times, saying you are a ‘fucking slut’ and a ‘slut’. The assault continued even as Kathy tried to get into a cab. Another person, a male, approached and punched her. He was arrested, but Roxanne could not be located. Kathy now lives in Darwin (about 2700 kilometres north of Port Augusta), but comes to Port Augusta from time to time. She and her mother are well known in Port Augusta as trouble makers. The police officer who attended the conference told us privately that Kathy’s mother is a ‘town psycho’, who verbally and physically abuses people, and threatens them with knives. Neither Kathy nor her mother could be located to attend the conference, nor could we locate Kathy for an interview. Those attending the conference were Roxanne, her parents, and her young brother. Roxanne was observed to be well-spoken and cooperative. During the conference, she said she was sticking up for her family, who had been victims of phone calls and harassment from Kathy’s mother. When describing these stories of harassment, taunting, and racial insults, she became quite distressed. Roxanne’s parents had little involvement in the conference: her mother left early with her son, and her father had little input. 36 When she was interviewed in 1998, Roxanne’s main concern was to ‘get this (conflict) all over and done with’. Her experience at the conference was positive, and the agreement was a lot better than she expected. She agreed not to commit an assault in the next three months, although she added that ‘it’s not too easy to stay out of trouble’. About Kathy, Roxanne said, ‘I don’t like her’; and she thought that ‘things would have been worse’ had Kathy attended the conference. She was unsure if it was a good idea that offenders meet victims. In 1999, Roxanne’s views toward Kathy’s being at the conference changed. ‘It would have been good to have her there… So I could have apologised and told her why I assaulted her. [Why did you?] A bit of an argument between me and her mum’. She would have wanted to apologise ‘more or less, so I could just get it off my chest that I had apologised, and that I knew that I shouldn’t have done it’. She believed that a conference ‘... helps more than court would. ... With court it’s just straight in and out, and they don’t do much talking and explaining’. She has gotten into trouble in the past year because of ‘a disagreement with me and my friend’. She thinks she needs to ‘move away from Port Augusta’ to stay out of trouble because there are ‘people who dislike me’. When asked why these disputes come about, at first she said she didn’t know why. Then, she said that people were asked by others, including family members, to carry out ‘pay back’, and this is partly what draws her into fighting. In 1999, Roxanne was enrolled in a public health course, and in 1998, Kathy was enrolled in tertiary course in Darwin. These young women were stable working class young people with aspirations. They were drawn into fights and fighting for similar reasons as the non-Aboriginal young people (i.e., responding to taunts and harassment by others), but they may also be brought into wider family disputes. Smelly jacket This apparent trigger for this assault was that Kayleen, the victim (13 years), was alleged to have said that the offender’s jacket smelled. But, as we look more deeply into the 37 offence, we find that it arose from Kayleen’s history of teasing and harassing of the offender, Jackie (15 years), and other kids at school. The coordinator spoke with Kayleen’s grandfather when preparing the conference. He said that she was not coming, and the family wanted nothing more to do with it. He was described by the Aboriginal coordinator as ‘quite aggressive’. ‘The facts’ (case 86). While at softball practice one evening, Kayleen was approached by Jackie. As Kayleen recalled in her police statement, here is what was said: Jackie: ‘When Sue was wearing my jacket, did you say it smelt?’ Kayleen: ‘No’. Jackie: ‘Yes you did, so don’t lie’. Jackie then punched Kayleen six times to her lip and behind her ear. Kayleen sat down to stop Jackie from punching her. Jackie then slapped her with an open hand to her face, saying ‘If you keep getting cheeky, you better look out’. Kayleen went home and called the police; they took her statement right away. The police went to Jackie’s house, questioned her, and reported her for the assault. The police wrote to Jackie’s mother, inviting her to attend the police station with her daughter for a formal caution. There was no response to the letter, and the matter was referred to conference, which was held in June, about three months after the incident. Attending were Jackie, her cousin (an adolescent), and a youth worker. Jackie said her assault was provoked by Kayleen; and although she seemed to be remorseful for her actions, she would not send an apology letter or say sorry to Kayleen. She was tired of Kayleen hassling her. When interviewed in 1998, Jackie said she didn’t know much about the conference process. ‘I didn’t know the victim was supposed to be there. I thought we would be in separate rooms’. She hadn’t thought about what she might say to Kayleen, but she was 38 sure that she ‘didn’t want to sit in the same room as her’. For the agreement, Jackie was not to be reported for another assault during the next three months and to enrol in counselling for anger management. She believed the agreement was very fair, and it was a lot better than what she expected. Like Roxanne in the previous case, Jackie’s replies to the presence of the victim changed over time. In 1998, she said, ‘I don’t think the offender and victim should be in the same room. [You don’t think the victim should ever be there at the conference?] No, they shouldn’t ever have victims there’. She said the opposite in her 1999 interview. ‘It would have been good (to have Kayleen there). She done the assault so she should have been there. [You mean she assaulted you first?] No, I assaulted her. She put me in for the assault’. Had Kayleen attended the conference, Jackie said she would have apologised ‘because I shouldn’t have assaulted her’, but there is another reason Jackie wanted Kayleen to be there. Because ‘she put me in for the assault’, Jackie believed that Kayleen was obligated to attend. Jackie finished the agreement ‘‘cause I wanted to be good,’ but like Roxanne, she said doing so didn’t make things right for her and Kayleen. She got into trouble in the past year for another assault. When asked why, she said the victim ‘was like talking about me. Saying things that wasn’t true’. When asked what would have to happen for her to stay out of trouble, Jackie said, ‘I don’t know. ... [You said something about anger, is there something else besides your anger?] No, it’s my anger. I’ve got a really bad temper’. SUMMARY AND DISCUSSION Several key points framed my analysis of girls, peer violence, and restorative justice. First, the empirical literature on restorative justice does not give sufficient attention to the varied contexts of offending and victimisation that bring people to a conference process. The offence categories of ‘violence’ and ‘property’ do not accurately depict the entry points. 39 From the SAJJ data, I identified seven offence types, which encapsulate victim-offender relations, the sex composition of the offence, and whether the victim was personal or organisational. Some kinds of offences cause victims more distress than others, both emotionally and physically; and when offenders justify or minimise their behaviour, a victim’s distressed is increased. Thus, the ideal elements in a restorative process are variably achieved, depending on the offence, the offender’s orientation, and the victim’s distress. Of the seven offence types, the youth punch-ups displayed the widest gap in the aspirations and reality of restorative justice. Second, the empirical literature on gender and restorative justice has given scant attention to offenders. If offenders are analysed, bi-variate gender comparisons may produce misleading findings on orientations to a restorative process (e.g., observed remorse, being defiant, wanting to make amends). Such analysis must take into account the offence dynamics that brought the offender and victim to the conference process. The 89 SAJJ conference observations showed that offending girls were more defiant, and less remorseful and apologetic than the boys, but this can be explained largely by the higher share of punch-ups in the girls’ offence structures. Researchers must also exercise caution in conducting bi-variate gender comparisons of victims, who also have different orientations to the conference process, depending on the character and dynamics of the offence. One limitation of my study is the number of cases available to analyse gender- based variation in offender and victim orientations across a range of offences, not just punch-ups. Thus, I am not able to fully address the concerns raised by Alder (2000) that offending girls may appear more recalcitrant, less remorseful, and more ‘difficult’ to adult authorities; or that ‘the community’ may expect a greater degree of conformity from girls than boys. 40 Third, the literature on girls’ (and youths’) peer violence shows that offenders justify their actions as provoked by things the victims said or did (or alleged to have said or done), to prevent victimisation, or to stick up for themselves (e.g., Burman, 2004; Miller & Mullins, 2006). The SAJJ cases confirm this pattern. However, contrary to the claims of Artz (2004) and others, in just one of the girls’ fights (Britney and Patsy, case 59) were boys mentioned, although unspecified rumours were mentioned in two others. Unlike the US literature (Lockwood, 1997), none of the SAJJ fights involved knives or other weapons. Although studies of peer violence, both feminist and otherwise, suggest that offenders view violence as a rational response to perceived threats or insults, the literature is silent on how an offender’s actions affect a victim. The literature is also silent on what an appropriate justice response could be for punch-ups. I turn to each of these areas. Offenders or Victims? The girls/women, crime, and victimisation literature is often bifurcated: some analysts focus on offending girls or women; and others, victimised girls or women. The two can be intertwined when authors situate girls’ offending in a broader context of their victimisation and sexual harassment by family members and boys, or their social and economic disadvantage (e.g., Artz, 2004; Gaarder & Presser, 2006). However, when girls are victims of violence by girls, the blurred boundaries of victimisation and criminalisation shift in meaning: both protagonists claim a ‘victim’ (or ‘non-offender’) status. What are feminist analysts to make of these girls’ stories and ‘voices’? In the SAJJ punch-ups, all the offending girls believed that the victims provoked the fight and deserved to be hurt. However, three of the nine were, in my judgment, more ‘offenders’ than ‘victims’: they continued to harass the victim (Olivia in case 48) and were ready to fight with little provocation (Moira in case 17 and Terry in case 82). In five other cases, there was a history of conflict between the girls; and it was difficult to discern the 41 balance of offending and victimisation over time. Although culpability was unclear, three seemed tipped more toward ‘offenders’ than ‘victims’ (Susan in case 61, Liz in case 81, Samantha in case 4, not described in detail, see endnote 9); and two, more toward ‘victims’ than ‘offenders’ (Roxanne in case 87, Jackie in case 86). The ninth was the only case of immediate retaliation by an offender who believed she had to defend her sexual reputation (Britney in case 59). Reading cases of girls’ violence from the perspective of girls who are hurt by violence gives us a different, and more holistic, view of girls’ fights. These offences caused the victims emotional or physical distress, or both. In three cases, the female victims remained traumatised or had physical scars. In punch-up cases, where the ‘facts’ of assaults are contested, where the stories of what happened and why diverge, analysts must give attention to the stories of those who were hurt and harmed. Otherwise, the literature will be littered with one-sided accounts of why violence was justified to protect one’s reputation. Whither Justice? What is an appropriate justice response in cases like these, and should restorative processes be used? My analysis finds that contrary to the positive results reported in the practice literature for male and female assault cases (e.g., Crosland & Liebman, 2003: cases 4, 7, 9, 19, 20, 27, 28), in no more than one-third of boys’ or girls’ punch-ups was there a semi- resolution of the conflict between the protagonists. Such a semi-resolution may be the most we can expect from a conference process. We should not expect the protagonists to become closer or best friends, but we might expect that the conflict does not escalate and there is an agreed truce. Contrary to the hopes of Gaarder and Presser (2006), positive dialogue, reconnection, and compassion by and between girls were atypical. Nor was there a conference discussion of the histories of violence between the two girls (when relevant). 42 In this South Australia conference process, there was little discussion of the offending girls’ histories of victimisation or family problems. Departing from Gaarder and Presser’s views (2006), I believe that such discussions in punch-up cases would re-victimise victims; they are more properly part of professional counselling, not a justice encounter (see also Trankle, 2007). At the same time, had these cases gone to court, no dialogue or semi- resolution between the girls would have occurred at all. It is important to recall that each offending girl made admissions to the police that she had assaulted another girl. Despite this, few were ready to admit at the conference that what they did was wrong. Although several conferences were affected by poor practice by the coordinator and police officer, even the best-run conference will face impediments in punch-up cases. Not only must there be a full and frank discussion of culpability (which may be shared), but also the protagonists must desire to get along in the future, if only in a ‘sort of’ way. Frank discussions of culpability were difficult for the girls for many reasons, including not being able to explain their aggression or not wanting to permit adults (especially parents) into the secrets of their adolescent world. Getting along in the future was not a priority for most. The ethical practice of restorative justice for these cases may require a good deal more preparation and groundwork than many have assumed. Face-to-face meetings should not take place when offenders and victims contest ‘facts’, and offenders have little interest in making amends or in changing their behaviour. This produces a damaging dynamic that brings more suffering to those injured. The potential for this dynamic is not confined to partner or sexual violence cases, as many have assumed. The SAJJ project finds that it is evident in girls’ and boys’ punch-ups. 43 ENDNOTES 1 I acknowledge the cooperation and in-kind assistance of the South Australian Family Conference Team, the South Australian Police, and the South Australian Courts Administration Authority. Without the support of these organisations and staff, this research could not have gone forward. The dedicated members of the research team and their roles are acknowledged in endnote 5. An Australian Research Council grant supported the data gathering (1998-99) phase of the research, with subsequent research assistance provided, in part, by the Key Centre for Ethics, Law, Justice, and Governance, Griffith University. 2 The measures of restorativeness include the degree to which the offender was remorseful and understood the impact of the crime on the victim; the degree to which victims understood the offender’s situation; and the extent of positive movement between the offender, victim, or their supporters, among other measures. Measures for fairness (or procedural justice) included perceptions of being treated fairly, with respect, and being listened to, among other measures. 3 I exclude the literature on school bullying because it focuses on one type of child or youth aggression. Those who have applied restorative justice to school-based bullying programs have focused principally on the dynamics of re-integrative shaming (e.g., Ahmed et al., 2001; Morrison, 2002), which is not my focus. 4 I exclude the many studies and reviews of studies on re-offending; see Bonta et al. (2006) and Hayes (2007) for overviews. 44 5 The two SAJJ Technical Reports (Daly et al., 1998; Daly, 2001b) detail the ways in which I conceptualised gender, race, class, and age relations as power dynamics in the conference process; and how the researchers were asked to record such dynamics and to reflect on their feelings after observing the conference and interviewing the victims in 1998 and 1999. The two reports discuss the project’s methods, survey and observation instruments, and interview schedules in depth. I am grateful to my research team who worked with me to construct the instruments, observe the 89 conferences, and conduct a total of 181 offender and 152 victim interviews in 1998 and 1999: Michele Venables (98- 99), Liz Mumford (98-99), Mary McKenna (98), Jane Christie-Johnston (98), and Rachel Mann (99). Brigitte Bouhours assisted in data cleaning, analysis, and codebook preparation during 2000 to 2003. All the face-to-face interviews were audio-recorded, except for a few participants who did not want this. Phone interviews were conducted with victims who did not attend the conference (26 percent of cases). All the open-ended portions of the interviews were transcribed for qualitative analysis. In presenting the quoted material, words in square brackets are those of the interviewer, when making probes or asking follow-up questions. 6 For the non-punch-up cases, male and female victims’ experiences of the conference process are part of another ms. in progress. 7 The measure of ‘victim distress’ is described more fully in Daly (2005: 159). 8 These incident ‘facts’ are drawn from the police report and may be supplemented from other observational or interview material on the file. ‘The facts’ are selectively constructed and often contested. The case number following is the unique identifier for each of the 89 conferences. All names used are pseudonyms. 45 9 The incident dynamics of the third case (case 4) were similar to the cases of on-going conflicts between the girls, who were not friends and did not like each other. Case 4 involved two non-Aboriginal girls; the offender (Samantha), victim (Rosie), and their mothers attended the conference; the mothers seemed to connect when agreeing that their daughters had ‘a mouth’, and the girls apologised outside the conference room. The longer term effect of the conference was of a semi-resolution, as in cases 61 and 81 10 This means an offender is to be of ‘good behaviour’ for a specified period of time; if s/he gets into trouble during this period, they face court charges. This was a more frequent outcome in the country town conferences than in Adelaide. 11 Both conferences were organised and run by an Aboriginal coordinator. REFERENCES Ahmed, E., Harris, N., Braithwaite, J., & Braithwaite, V. (2001). Shame management through reintegration. Cambridge: Cambridge University Press. Alder, C. (2000). Young women offenders and the challenge for restorative justice. In H. Strang & J. Braithwaite (Eds.), Restorative justice: Philosophy to practice (pp. 105- 120). Aldershot: Ashgate. Alder, C., & Worrall, A. (Eds.) (2004). Girls’ violence: Myths and realities. Albany: State University of New York Press. Artz, S. (2004). Violence in the schoolyard: School girls’ use of violence. In C. Alder & A. Worrall (Eds.), Girls’ violence: Myths and realities (pp. 151-166). Albany: State University of New York Press. 46 Baines, M., & Alder, C. (1996). Are girls more difficult to work with? Youth worker’s perspectives in juvenile justice and related areas. Crime and Delinquency, 42, 467- 485. Bonta, J., Jesseman, R., Rugge, T., & Cormier, R. (2006). Restorative justice and recidivism: Promises made, promises kept? In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 108-120). Abington: Routledge. Burman, M. (2004). Turbulent talk: Girls’ making sense of violence. In C. Alder & A. Worrall (Eds.), Girls’ violence: Myths and realities (pp. 81-103). Albany: State University of New York Press. Cook, K. J., Daly, K., & Stubbs, J. (Eds.) (2006). Theoretical Criminology, 10(1), Special issue on Gender, Race, and Restorative Justice. Crosland, P., & Liebman, M. (2003). 40 cases: Restorative justice and victim-offender mediation. Bristol: Mediation UK. Daly, K. (1996). Diversionary conferencing in Australia: A reply to the optimists and skeptics. Paper presented at the American Society of Criminology Annual Meeting, Chicago, November. Daly, K. (2001a). Conferencing in Australia and New Zealand: Variations, research findings, and prospects. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles: Conferencing, mediation and circles (pp. 59-83). Oxford: Hart Publishing. Daly, K. (2001b) South Australia Juvenile Justice (SAJJ) research on conferencing, technical report No. 2: Research instruments in year 2 (1999) and background notes. Brisbane: School of Criminology and Criminal Justice, Griffith University. Available at <http://www.griffith.edu.au/school/ccj/kdaly.html> Daly, K. (2002a). Restorative justice: The real story. Punishment & Society, 4(1), 55-79. 47 Daly, K. (2002b). Widening the feminist lens on restorative justice. Paper presented at the American Society of Criminology Annual Meeting, Chicago, November. Daly, K. (2003). Mind the gap: Restorative justice in theory and practice. In A. von Hirsch, J. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? (pp. 221-236). Oxford: Hart Publishing. Daly, K. (2005). A tale of two studies: Restorative justice from a victim’s perspective. In E. Elliott & R. Gordon (Eds.), New directions in restorative justice (pp. 153-174). Cullompton: Willan. Daly, K. (2006). The limits of restorative justice. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 134-145). Abington: Routledge. Daly, K., & Hayes, H. (2002). Restorative justice and conferencing. In A. Graycar & P. Grabosky (Eds.), Handbook of Australian criminology (pp. 294-312). Cambridge: Cambridge University Press. Daly, K., & Stubbs, J. (2006). Feminist engagement with restorative justice. Theoretical Criminology, 10(1), 9-28. Daly, K., Venables, M., Mumford, L., McKenna, M., & Christie-Johnston, J. (1998). SAJJ technical report No. 1: Project overview and research instruments. Brisbane: School of Criminology and Criminal Justice, Griffith University. Available at <http://www.gu.edu.au/school/ccj/kdaly.html> Dignan, J. (2006). Juvenile justice, criminal courts and restorative justice. In G. Johnstone & D. Van Ness (Eds.), Handbook of restorative justice (pp. 269-291). Cullompton: Willan. 48 Gaarder, E., & Presser, L. (2006). A feminist vision of justice? The problems and possibilities of restorative justice for girls and women. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 483-494). Abington: Routledge. Gilligan, C. (1982). In a different voice. Cambridge: Harvard University Press. Hayes, H. (2007). Reoffending and restorative justice. In G. Johnstone & D. Van Ness (Eds.), Handbook of restorative justice (pp. 426-444). Cullompton: Willan. Johnstone, G., & Van Ness, D. (Eds.) (2007). Handbook of restorative justice. Cullompton: Willan. Kruttschnitt, C., & Carbone-Lopez, K. (2006). Moving beyond the stereotypes: Women’s subjective accounts of their violent crime. Criminology, 44(2), 321-352. Lockwood, D. (1997). Violence among middle school and high school students: Analysis and implications for prevention. National Institute of Justice Research in Brief, October. Masters, G., & Smith, D. (1998). Portia and Persephone revisited: Thinking about feeling in criminal justice. Theoretical Criminology, 2(1), 5-27. Maxwell, G., Kingi, V., Robertson, J., Morris, A., & Cunningham, C. (2004). Achieving effective outcomes in youth justice: Final report. Wellington: Ministry of Social Development. Maxwell, G., & Morris, A. (1993). Family, victims and culture: Youth justice in New Zealand. Wellington: Social Policy Agency and the Institute of Criminology, Victoria University of Wellington. Maxwell, G., Morris, A., & Hayes, H. (2006). Conferencing and restorative justice. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 91-107). Abington: Routledge. 49 McCold, P. (2006). The recent history of restorative justice: Mediation, circles, and conferencing. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 23-51). Abington: Routledge. Miller, J., & Mullins, C. W. (2006). Stuck up, telling lies, and talking too much: The gendered context of young women’s violence. In K. Heimer & C. Kruttschnitt (Eds.), Gender and crime: Patterns in victimization and offending (pp. 41-66). New York: New York University Press. Morris, A., & Maxwell, G. (Eds.) (2001). Restorative justice for juveniles: Conferencing, mediation and circles. Oxford: Hart Publishing. Morrison, B. (2002). Bullying and victimisation in schools: A restorative justice approach. Trends & Issues in Crime and Criminal Justice, 219, 1-6. Retzinger, S., & Scheff, T. (1996). Strategy for community conferences: Emotions and social bonds. In B. Galaway & J. Hudson (Eds.), Restorative justice: International perspectives (pp. 315-336). Monsey: Criminal Justice Press. Strang, H. (2001). Justice for victims of young offenders: The centrality of emotional harm and restoration. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles: Conferencing, mediation and circles (pp. 183-193). Oxford: Hart Publishing. Strang, H. (2002). Repair or revenge: Victims and restorative justice. Oxford: Clarendon Press. Strang, H., & Braithwaite, J. (Eds.) (2002). Restorative justice and family violence. Cambridge: Cambridge University Press. Sullivan, D. & Tifft, L. (Eds.) (2006). Handbook of restorative justice: A global perspective. Abington: Routledge. 50 Trankle, S. (2007). In the shadow of penal law: Victim-offender mediation in Germany and France. Punishment & Society, 9(4), 395-415. von Hirsch, A., Roberts, J., Bottoms, A. E., Roach, K., & Schiff, M. (Eds.) (2003). Restorative justice and criminal justice: Competing or reconcilable paradigms? Oxford: Hart Publishing. 
work_nlwed2wc5fesvms6hf4ldlpqdm	----	Justice for women! Social Justice Research, VoL 7, No. 2, 1994 J u s t i c e for Women.* Percy B. Lehning I A RESPONSE TO EDWARD E. SAMPSON T h e main points of Sampson's critique against Lehning (1990) are summarized by Sampson in the following way: By failing to deal with the postmodern challenge to the Enlightenment-liberalist conception of neutrality and by thoroughly ignoring the feminist understanding in which neutrality actually conceals a masculinist bias, Lehning's analysis is seriously undermined with respect to its possibility for understanding, let alone for accom- plishing justice. (Sampson, 1994, Abstract) My response is based on these points o f critique. Feminism and Postmodernism T h e precise character of the relationship between feminist theory and postmodernism is a subject for debate. Postmodernism may have a great deal to offer to feminism but "almost all [feminist theorists] also agree that t h e r e are some serious problems with the relationship between the two" (Hirschmann, 1992, p. 300). A n y number o f anthologies on this subject support this claim (see, for instance, Benhabib and Cornell, 1987). The question is: Can feminism b e c o m e postmodernist and claim to develop a theory in the interest o f w o m e n ' s emancipation? Benhabib remarks, after an analysis o f Flax's Thinking Fragments (1990) [a book used by Sampson to support his own claims]: "The postmodern position(s) thought through to their conclusions m a y eliminate not only the specificity of feminist theory but place in ques- tion the very emancipatory ideals o f the women's movement altogether" 1Department of Public Administration, Erasmus University, Postbox 1738, 3000 D R Rotterdam, The Netherlands. 155 0885-7466/94/0600-0155507.00/0 O 1994 Plenum Publishing Corporation 156 L e h n i n g (Benhabib, 1992, p. 213). Hartsock (1990) even remarks that "postmod- ernism represents a dangerous approach for any marginalized group to a d o p t " (p. 16). F o r Hirschmann (1992) there cannot b e a feminist post- modernism, only a postmodern feminism that can borrow from certain in- sights o f p o s t m o d e r n theories. It can help feminist political theorists to develop their arguments on sexual difference and the need to attend to context and particularity (p. 318). In conclusion, notwithstanding these different opinions, there is evi- dently no d o u b t in Sampson's mind a b o u t the character the relationship b e t w e e n feminism and postmodernism should have. In that regard it is striking to note that he makes no reference whatsoever to this d e b a t e be- tween feminist theorists on this question. L i b e r a l i s m and Difference The feminist-difference issue is, according to Sampson, a problem in my work. O n the problem of representing differences, Gould (1993) has written: It h a s b e c o m e a c o m m o n p l a c e in political t h e o r y t o criticize liberalism f o r its a b - s t r a c t u n i v e r s a l i t y a n d a b s t r a c t individualism, in w h i c h d i f f e r e n c e s o t h e r t h a n t h o s e o f political o p i n i o n a r e i g n o r e d o r o v e r r i d d e n a n d assigned to t h e p r i v a t e s p h e r e . . . . . B u t t h e n e g l e c t o f d i f f e r e n c e in liberalism s h o u l d n o t b e e x a g g e r a t e d . (p. 1) O n e should add that it has, nowadays, become fashionable to write o f ear- lier traditions as insufficiently attentive to difference and too much preoc- cupied with ideals o f equality that require us to be, o r become, the same. As Phillips (1993) has summarized: F e m i n i s t w r i t i n g in t h e 1980s o f t e n r e g a r d e d t h e i r o w n p r e v i o u s i n c a r n a t i o n s in t h i s light, a n d a r g u e d t h a t a n exclusive e m p h a s i s o n sexual e q u a l i t y was r e q u i r i n g w o m e n t o r e p l i c a t e m a l e m o d e l s o f d e m o c r a c y o r e m p l o y m e n t o r j u s t i c e o r rights. L i b e r - alism t u r n e d o u t t o a f a v o u r i t e t a r g e t o f attack, a n d b o t h f e m i n i s t a n d socialist h a v e r e g a r d e d it as a t r a d i t i o n t h a t e r a s e s d i f f e r e n c e - - n o t in reality, o f c o u r s e , b u t in t h o u g h t . L i b e r a l political t h e o r y is said t o a s s e r t a n e s s e n t i a l s a m e n e s s o f c o n - dition t h a t overrides the differences between us, appealing to a natural equality in rights o r the possession o f reason that will stop these differences from counting. (p. 2) It is possible, however, with only a minor change of emphasis to view lib- eralism as f o u n d e d on the very pertinence o f difference as Phillips herself has noted. I n s t e a d o f d e s c r i b i n g it as overriding d i f f e r e n c e , we m i g h t equally well see liberalism as p u r s u i n g a n e s s e n t i a l s a m e n e s s o f c o n d i t i o n in o r d e r to underwrite t h e v e r y r e a l d i f f e r e n c e s b e t w e e n u s . . . . [Liberalism] is d r i v e n precisely b y w h a t it s e e m s as t h e p o w e r a n d t h e t e n s i o n s o f d i f f e r e n c e . N o t i o n s o f diversity a n d d i f f e r e n c e t h e n ap- Justice for Women 157 pear central to liberalism from its inception and to liberal democracy throughout its formation. (p. 3) I, o f course, do n o t claim t h a t these ideas have b e e n realized in practice. T h e p o i n t is t h a t t h e r e is, c o n t r a r y to Sampsons's suggestions, n o t h i n g " p h a l l o c e n t r i c " in this liberal d e m o c r a t i c framework. O n t h e contrary, I a g r e e with M e n d u s (1992) w h o in an essay on feminism a n d d e m o c r a c y has suggested t h a t difference is the rationale for democracy. T o m a k e this p o i n t clear it is necessary to m a k e a distinction b e t w e e n two levels o f d e m o - cratic interest: the principle o f inclusion and the principle o f equality. A t t h e first level, difference should be ignored. Differences o f class, race, a n d g e n d e r should n o t m a t t e r w h e n deciding on citizenship. A t the s e c o n d level t h e s e differences should be recognized, b u t n o t eliminated. For whereas traditional democratic theory tends to construe difference as an ob- stacle to the attainment of a truly democratic state, feminist theory should alert us to the possibility that difference is rather what necessitates the pursuit of democracy. (Mendus, 1992, p. 216) In conclusion, Sampson in m u c h too e a g e r to reach the conclusion t h a t liberal political t h e o r y a n d liberal democracy are u n a b l e to deal in a n a d e q u a t e way with differences. He, in fact, would have a h a r d time con- vincingly arguing so. J u s t i c e a n d D i f f e r e n c e T h e feminist-difference issue t h a t is claimed to be a p r o b l e m in m y w o r k a l s o - - a c c o r d i n g to S a m p s o n - - p e r m e a t e s my ideas on justice. Is this i n d e e d the case? In regard to "diversity a n d d e m o c r a c y " and the p r o b l e m o f repre- senting differences, G o u l d (1993) has r e m a r k e d t h a t an alternative theo- retical f r a m e w o r k in which differences would be a d e q u a t e l y recognized a n d effectively t a k e n into a c c o u n t in the public domain, remains u n d e v e l o p e d a n d problematic (p. 2) Taking differences seriously in the social a n d po- litical d o m a i n m e a n s taking rights seriously. It involves a c o n c e p t i o n o f rights a n d justice t h a t are n o t difference-blind in its principles o f e q u a l rights m a n d a t i n g a sameness o f t r e a t m e n t , b u t it involves principles t h a t build a recognition o f difference a n d the protection o f the rights o f differ- e n c e into its basic conception. Rawls's (1993) t h e o r y is an example o f a t h e o r y t h a t tries to do j u s t this, as I argued in L e h n i n g (1990). This t h e o r y acknowledges d i f f e r e n c e as a concern for justice. D i f f e r e n t i a t i o n is built into the basic r e q u i r e m e n t o f j u s t t r e a t m e n t . Justice as equal f r e e d o m should n o t entail only t h e nega- 158 Lehnlng tive liberties a n d e q u a l political fights b u t also e q u a l rights t o t h e c o n d i t i o n o f d i f f e r e n t i a t e d s e l f - d e v e l o p m e n t , positive f r e e d o m , z T h e c r i t i q u e t h a t I d e v e l o p e d with r e g a r d to Rawls's c o n c e p t i o n o f p r i m a r y g o o d s h a d to d o with t h e fact t h a t justice r e q u i r e s n o t t h e s a m e c o n d i t i o n s f o r e a c h o t h e r , b u t e q u i v a l e n t c o n d i t i o n s d e t e r m i n e d b y basic capabilities. B e c a u s e justice entails a r e c o g n i t i o n a n d c o n s i d e r a t i o n o f rel e- v a n t d i f f e r e n c e s , I a r g u e d t h a t we sh o u l d r e p l a c e Rawls's c o n c e p t i o n o f p r i m a r y g o o d s b y Sen's c o n c e p t i o n o f basic capabilities. W e w o u l d t h e n b e m o r e able to c a p t u r e t h e realization o f positive f r e e d o m a n d d i f f e r e n c e s w o u l d b e b e t t e r recognized. In conclusion, S a m p s o n h as n o t shown at all t h a t t h e t h e o r y o f j u s t i c e t h a t is d e v e l o p e d in L e h n i n g (1990) is i n d i f f e r e n t to differences; t h e y a r e n o t o v e r r i d d e n o r s t o p p e d f r o m counting. C a p a b i l i t i e s and Difference S a m p s o n (1994) is so obsessed with trying to m a k e his p o i n t a b o u t t h e feminist c h a l l e n g e to all c o n c e p t i o n s o f neutrality, t h a t his critique t ak es a s t r a n g e t u r n , n o t to say a malign o n e, w h e n we c o m e to t h e p o i n t o f "basic capabilities." H e claims h e first b e c a m e aw are t h a t t h e feminist-dif- f e r e n c e issue was a p r o b l e m in my w o r k w h e n I listed the fundamental kinds of diversity that mark the human being, including dif- ferences based on metabolic rates, physical conditions, longevity, health, body size, temperament, and so forth, but excluding (by omission) sex. Lehning uses these differences to illustrate why state neutrality is so important to ensure just allocations (p. 150) . . . . Now, while Lehning's list accurately describes some of the various ways in which people differ from one another; and while Lehning is correct to note that these are the very differences that can enter significantly into just allocations, by omitting sexual differences from the list, he avoids confronting the feminist challenge to all conceptions o f neutraliO, and so can be lulled into sustaining a belief in state neutrality [emphasis added]. (p. 150) T h i s is really a n a b s u r d p o i n t o f critique. T h e implication is t h a t I, o n p u r - pose, o m i t t e d sexual d i f f e r e n c e s f r o m t h e list to avoid t h e feminist chal- lenge. L e t us g e t t h e r e c o r d straight. I h a v e a r g u e d in L e h n i n g (1990) t h a t S en criticizes Rawls's a p p r o a c h o f p r i m a r y g o o d s b e c a u s e Rawls d o e s n o t c o p e in a n effective way w i t h t h e p r o b l e m o f t h e f u n d a m e n t a l diversity o f h u m a n beings. T h e availability o f an a d e q u a t e r a n g e o f optio n s derives its v al u e f r o m t h e c o n t r i b u t i o n it 2See also Gould (1988). She proposes principles of justice that builds a recognition of difference and the protection of the fights of difference into its basic conception. She recognizes that Rawls also incorporates an acknowledgment of difference as a concern of justice, e.g., in his difference principle. She notes, however, that this acknowledgment is not as comprehensive as the one she herself proposes. Justice for Women 159 makes to the equal freedom o f each person to lead a good life o f his own choice. As I wrote: "In this perspective the recognition o f the fundamental diversity of human beings has very deep consequences" (p. 307). I went on quoting Sen (1988) which I shall do again: A theory of freedom has come to grips with the enormous heterogeneity o f human beings in terms of personal, social and natural characteristics. T h e crucial issue in identifying the n a t u r e of 'freedom of choice' relates to the question: Choice of what? (p. 278) Anyone who wants to argue that sexual differences are not included in this conception of freedom and choice, places himself outside the range of a reasonable debate on the implications of the idea o f basic capabilities. (And, for that matter, on the implications o f political neutrality.) But my saying so may not be convincing enough. I quote Sen (1990) himself when he discusses his conception of basic capabilities: "Variations related to sex, age, genetic endowments, and many other features give us unequal powers to build freedom in our lives even when we have the same bundle o f goods" (p. 121). Evidently it is necessary to point out to some that, in fact, in Sen's approach, where abilities to take action, and not resources, are the primary goods, we can take account o f the fact that individuals have varying needs for resources, in accordance with their social and physical circumstances, the special obstacle~ they face, and so forth. It is from that perspective that Sen discusses, for instance, the empirical issues involved in the variable conversions o f primary goods (and resources) into capabilities (and free- d o m ) with respect to Indian women. Okin (1989) has argued convincingly in Justice, Gender, and the Family that, for a number o f reasons, the division o f labor that prevails b e t w e e n the sexes is a matter o f social injustice. It often leads to economic, psy- chological, or even physical vulnerability o f women and children. It con- tributes to women's inequality o f opportunity and actual inequality o f p o w e r and influence in society at large. I must admit that I really cannot see that only a postmodern feminist point of view can lead to this insight. Even less is it clear to me why the concept o f "basic capabilities" would not b e a way to deal with these problems. It is, then, from this perspective, the perspective o f "functioning and capability" that one should understand Serfs and, one should add, Nussbaum's development ethic. ( F o r an insight- ful analysis of Nussbaum's and Sen's development ethic, see Crocker, 1992.) It is from this perspective that the contributions to, for instance Human Capabilities: Women, Men and Equality (Nussbaum and Glover, 1993) are written. (See also Nussbaum, 1992; Nussbaum and Sen, 1993.) In conclusion, there is no reason whatsoever n o t to include sexual differences in the list o f ways in which people differ, and certainly n o t from 160 Lehning the perspective o f justice that has been defended in Lehning (1990). 3 Con- trary to what Sampson suggests, these differences where not at all omitted in Lehning (1990) "to avoid the feminist challenge." Impartiality and Difference Sampson may claim that I have missed the core o f his critique. H e may want to argue that it is not directed against the conception o f basic capabilities as such, or against justice as such, b u t its target is the concep- tion o f neutrality I use. That conception ,'actually conceals a masculinist bias," and: "the disturbing feature of the Enlightenment-liberalist project, Lehning's included, [is] its clearly masculinist bias hidden under the guise o f neutrality" (Sampson, p.148). And Much o f the feminist critique of neutrality is built upon its theory of sexual differ- ences. The feminist theory of difference argues that state neutrality is not simply and idle myth surviving from the Enlightenment, but serves to conceal the partiality that inheres in the very belief in impartiality. (p. 149) Let us first recapitulate. I wrote that the central argument favoring the liberal notion of neutrality is that it is necessary if one acknowledges that there exist a variety o f conceptions of the good life. There are many ways in which a fulfilled life can be lived, without any perceptible hier- archy among them. (Lehning, 1990, p. 188) And: The stress upon neutrality and equal respect, which denies the state any right to implement any specific conception of the good life, emphasizes the equal freedom that all persons should have to pursue their own conception of the good life. (p. 189) The public role of a neutrally recognized political conception o f jus- tice is to specify a point o f view from which all citizens can examine b e f o r e one another w h e t h e r o r not their political institutions are just. It has b e e n my contention that Rawls's conception of justice is, in fact, an example o f such a political conception of justice. This contention is based on the idea that the way Rawls has formulated his conception o f justice is f o u n d e d on the ideal o f impartial moral reason. N o w for instance Young (1990) has argued (with reference to Rawls's theory) that the ideal o f impartiality is an impossibility, and that it denies difference. (I follow here Young, 1990. On this point Sampson's argument is essentially the same as that of Young,) In fact, she claims that the ideal ~I'his o f course does not imply that the conception o f basic capabilities, as an alternative to Rawls's primary goods is immune against criticism. See for a reaction on Sen's ideas, Rawls (1993, pp. 182-186). See also Daniels (1990). Justice for Women 161 o f impartiality in moral theory expresses a logic o f identity that seeks to reduce differences to unity (p. 97). This conception o f moral reason as- sumes that in order for the agent to escape egoism, and attain objectivity, he o r she must adopt a universal point o f view that is the same for all rational agents. The ideal o f impartiality is the result of this search for a universal, objective "moral point o f view." (pp. 99-100) In sum, Young's argument is that impartial reason aims to a d o p t " a point o f view from nowhere," and therefore denies difference. I suggest, however, that impartial reason does not take a point o f view from nowhere but, on the contrary, a perspective from which allpoints o f view are taken seriously, with the purpose o f taking into account all differences. It is, o f course, the function o f Rawls's well-known device o f the "Original Position" to do just this. The "veil of ignorance" guarantees im- partiality when principles are formulated that should regulate the basic structure o f society. Hypothetical people in selecting principles o f justice are deprived o f knowledge of their own particular place in society, their class, occupation, sex, and so forth, and therefore have to consider the well- being o f everyone, from the best-off to the worst-off, on the hypothesis that they could be any one o f them. In conclusion, contrary to what Young (1990) and Sampson (1994) claim, impartiality does not do away with difference. I agree with Nussbaum (1992, p. 45) and Okin (1989, p. 101) that the exercise o f impartial moral imagination is enormously valuable for understanding the lives of, for in- stance, women, and that Rawls's theory o f justice can be a tool for feminist criticism. Neutrality and Difference Sampson claims that one o f the reasons I have made a choice in favor o f neutrality is that "If there is no neutral place to stand, we worry that there will be no way to choose among competing views, no fair way to allocate resources" (p. 147). And he continues to remark that The choices are not between neutrality o r death, chaos o r madness, but rather be- tween neutrality and the need for people to operate together, in full knowledge o f their interests and situatedness, to probe and to negotiate the terms by which they will live together imperfectly in this world of their differences. (pp. 147-148) I, for my part, certainly have not claimed that the choice is death or neu- trality. But there is more to it. The choice is not between, on the one hand, neutrality and, on the other, the need for people to c o o p e r a t e together in full knowledge of their interests and situatedness. The question is how to 162 Lehning achieve this cooperation. The upshot of my article has b e e n to show that neutrality is a plausible basis for this "negotiation" if it is to b e on the basis o f reason rather than superior force. The best we can say o f Samp- son's critique is that he has misinterpreted the ideal o f "neutrality" and "the neutral state" as developed in Lehning (1990) or has b e e n misled by the term neutrality. L e t us try, once again, to make clear the argument on which the idea of neutrality has b e e n based. The starting point for using the concept neu- trality was Rawls's idea o f political liberalism. The central aim favoring the liberal notion o f neutrality is that it is necessary if one acknowledges that there exists a variety o f conceptions o f the good life. In response to this variety, to pluralism and reasonable disagreement political liberalism for- mulates the principle that the state should be neutral with respect to this diversity o f conceptions o f the good life. Neutrality can be defined in quite different ways. As Rawls (1993) has noted: "[S]ome forms o f liberalism are neutral in the sense that they use no ideas o f the good at all except ones that are purely instrumental (neutral means, as it were) . . . . [J]ustice as fairness is not neutral in this way . . . . " (p. 191, note 22). The Rawlsian principles o f justice are sub- stantive. The principles express far more then procedural values, and so do its political conceptions o f society and person, which are represented in the original position. Justice as fairness, then, is not procedurally neutral. A different way o f defining neutrality is neutrality o f aim. In Lehning (1990) it has b e e n used in this way. There neutrality has b e e n defined in terms o f the aim o f basic institutions and public policy with respect to com- prehensive doctrines and their associated conceptions o f the good. Neu- trality o f aim (as o p p o s e d to neutrality o f procedure) "means that those institutions o f society and policies are neutral in the sense that they can be endorsed by citizens generally as within the scope o f a public concep- tion" (Rawls, 1993, p. 192). This neutrality o f aim is not to be confused with neutrality o f effects or influences. Following Rawls (1993) it should b e noted that it is s u r e l y i m p o s s i b l e f o r t h e basic s t r u c t u r e o f a j u s t c o n s t i t u t i o n a l r e g i m e n o t to h a v e i m p o r t a n t effects a n d i n f l u e n c e s as to w h i c h c o m p r e h e n s i v e d o c t r i n e s e n d u r e and g a i n a d h e r e n t s o v e r time; a n d it is futile t o try t o c o u n t e r a c t t h e s e effects a n d i n f l u e n c e s , o r e v e n to a s c e r t a i n f o r political p u r p o s e s h o w d e e p a n d p e r v a s i v e t h e y are. W e m u s t a c c e p t t h e facts o f c o m m o n s e n s e political sociology. (p. 193) Recapitulating, procedural neutrality should b e distinguished from neutrality o f aim; the latter should not be confused with neutrality o f effect or influence. Justice as fairness hopes to satisfy, as Rawls mentions, neu- trality o f aim in the sense that basic institutions and public policy are not to b e designed to favor any particular comprehensive doctrine. Political Justice for Women I63 liberalism abandons, however, as impracticable neutrality o f effect or in- fluence. 4 [One could add that recently Rawls (1993, p. 194) noted that the t e r m neutrality is unfortunate because some o f its connotations are highly misleading, others suggest altogether impracticable principles such as neu- trality o f effect, a idea strongly suggested by the term itself. It is a reason for avoiding the term.] A clear example o f misunderstanding the way the concept neutrality is used, is evident from the following remarks o f Sampson (1994) Tax laws, of course, do deal directly with allocation decisions a n d should thereby provide us (and Lehning) with a prime case of state neutrality. A n d yet, as we all know, there is n o way to devise tax legislation t h a t does not advantage some a n d disadvantage others. Neutrality h e r e . . , is a myth that serves some interests over others. (p. 149) 5 Sampson is quite right in stating that tax laws deal with allocation [or, as I rather would say, with (re-) distribution] decisions. The implication o f his remark is that, by making such decisions state neutrality is a mirage. Tax legislation always advantages some and disadvantages others. I will not argue that this is not what, in fact, tax law does. The ques- tion is if this is a p r o o f of the myth of the conception o f state neutrality as that conception has been used in my article. I would say it is not. L e t me elaborate. The point is not at all whether tax legislation advantages some and disadvantage others. In that sense Sampson's feminist example is be- side the point, since it actually appeals to premises about equal treatment that a neutralist would accept. The point is rather to design tax laws that advantage and disadvantage persons in a way that is in line with principles o f justice. This is what Rawls's "difference principle" is supposed to do. It is a principle that is especially relevant for the design o f tax laws. As part o f the Rawlsian conception o f political liberalism the difference principle is part o f the basic institutions o f society and policies. This principle should also b e endorsed by each citizen because it is neutral with regard to con- ceptions o f the good life that citizens are persuing. This does not mean, however, that the application o f the difference principle works out the same for everybody. The purpose o f the difference principle is to guarantee that inequalities in, for instance, income work o u t to the greatest benefit of the least advantaged members of society. It may b e the case that the difference principle requires a design of tax laws which 4It should b e emphasized that neutrality in aim does not m e a n t h a t political liberalism may n o t affirm the superiority of certain political virtues. Justice as fairness thus includes the virtues of fair social cooperation such as the virtues of civility and tolerance, o f reasonableness a n d the sense of fairness. See Rawls (1993, p. 194). 5See also Young (1990): " T h e idea of neutrality that stands above the particular interests a n d conflicts of civil society is, however, a myth" (p. 114). 164 Lehning have as effect that some have to pay more tax and some have to pay less because the aim is reaching a situation of equal concern and respect for everybody or, to formulate it in another way, a situation o f equal basic capabilities. The burden o f taxation is to b e justly shared, b u t as with the right to equal protection which may require an unequal distribution o f po- lice over different neighborhoods, a just tax legislation may require that some have to pay more than others. In conclusion, from my part it would b e rather preposterous to drop right now the term neutrality as a rebuttal to Sampson's critique. The im- portant point to note is, however, that the use of the term neutrality, which I have tried to make more clear above, should not have b e e n interpreted to mean indifference to differences, as Sampson claims. O n the contrary, the liberal notion o f neutrality should guarantee that differences will b e taken care o f in such a way that each citizen, male or female, hetero- o r homosexual, will b e treated with equal concern and respect. Feminism and Justice Sampson is o f the opinion that the kind of constitutive sense o f per- sonhood that Sandel (1982) recommended, and that according to Sampson (1994, p. 153) is the centerpiece o f the postmodern feminist analyses, b e t t e r fits the understanding of justice then the one I have given. I am not so sure, for several reasons. L e t me mention just one. One aspect of S a n d e r s arguments, to insist that families be internally just, is misguided. The family is according to him, "beyond justice" and not an appropriate topic for a theory o f justice. Okin (1989, Chap. 2) questioned this position, especially when we notice whose interest the ideas o f love beyond justice has fre- quently served. Sandels's theory is in that sense not gender-neutral at all. A t the same time as ignoring families, theories like Sandel's assume, as Okin has noted, that meals will be cooked, houses cleaned, etc., in short the reproduction o f people will continue. It is rather a surprise to discover at the end o f Sampson's criticism of my article, that he recommends to turn to a theorist for whom the family is b e y o n d justice, b u t who nevertheless envisions---according to Samp- son the postmodern feminist view of justice. In conclusion, I have not b e e n very impressed by Sampson's critique. The question is whether there is a coherent basis for social institutions to b e constructed from the so-called feminist-postmodernist line. If so, it does not emerge here (and I very much doubt if it exists). All in all, Sampson's antiliberal challenge misfires. This does not mean that all is well with lib- eralism. O n the contrary. That is, however, another story. Justice for Women 165 R E F E R E N C E S Benhabib, S. (1992). Situating the Self," Gender, Community and Postmodernism in Contemporary Ethics, Polity Press, Oxford. Benhabib, S. and Cornell, D. (eds.). (1987). Feminism as Critique, Polity Press, Oxford. Crocker, D. A. (1992). Functioning and capability; The foundation of Sen's and Nussbaum's development ethic. Polit. Theory 20: 584-612. Daniels, N. (1990). Equality of what: Welfare, resources, or capabilities? Philos. Phenomenol. Res. 1: 273-296. Flax, J. (1990). Thinking Fragments, University of California Press, Berkeley. Gould, C. C. (1988). Rethinking Democracy; Freedom and Social Cooperation in Politics, Economy, and Society, Cambridge University Press: Cambridge, U.K. Gould, C. C. (1993). Diversity and democracy: Representing differences. Paper written for "Democracy and Difference." Conference for the Study of Political Thought, Yale University, New Haven, CT, April 16-18. Hartsock, N. (1992). Foucault on power: A theory for women? In Nicholson, L. (ed.), Feminism/Postmodemism, Routledge, New York. Hirschmann, N. J. (1992). Rethinking Obligation; A Feminist Method for Political Theory, Cornell University Press, Ithaca, NY. Lehning, P. B. (1990). Liberalism and capabilities: Theories of justice and the neutral state. Soc. Justice Res. 4: 187-213. Mendus, S. (1992). Losing the faith. Feminism and democracy. In Dunn, J. (ed.), Democracy; The Unfinished Journey 508 BC to A D 1993, Oxford University Press, Oxford, pp. 207-219. Nussbaum, M. (1992). Justice for women! The New York Review of Books, October 8, pp. 43-48. Nussbaum, M., and Sen, A. (eds.). (1993). Quality of Life, Clarendon Press, Oxford. Nussbaum, M., and Glover, J. (eds.). (1993). Human Capabilities: Woman, Men and Equality, Clarendon Press, Oxford. Okin, S. M. (1989). Justice, Gender, and the Fami~,, Basic Books, New York. Phillips, A. (1993). Dealing with difference; From a politics of ideas to a politics of presence. Paper written for "Democracy and Difference," Conference for the Study of Political Thought, Yale University, New Haven, CT, April 16-18. Rawls, J. (1993). Political Liberalism, Columbia University Press, New York. Sampson, E. E. (1994). Justice and the neutral state. A postmodern feminist critique of Lehning's account of justice. Soc. Justice Res. 7: 145-154. S a n d e l , M. (1982). Liberalism and the Limits o f Justice, Cambridge University Press, Cambridge, U.K. Sen, A. (1988). Freedom of choice. Eur. Econ. Rev. 32: 269-294. Sen, A. (1990). Justice: Means versus freedom. Philos. Public Affairs 19: 111-121. Y o u n g , I. M. (1990). Justice and the Politics o f Difference, Princeton University Press, Princeton, NJ. 
work_nlwfogdqd5f6fbqahl4tqhbeqa	----	WP 2012-02 French Annex EUROPEAN UNIVERSITY INSTITUTE, FLORENCE DEPARTMENT OF LAW French Version of Chapter 4 of Law Working Paper 2012/02: Un développement durable sans justice « écologique » ? SOPHIE LAVALLEE EUI Working Paper LAW 2012/02 (French version) This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © 2012 Sophie Lavallée Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu 1 Un développement durable sans justice « écologique » ? La polysémie du terme «développement durable» rappelle l’histoire enfantine de Lewis Carrolls, Through the looking glass and what Alice found there, où une scène illustre le pouvoir de la sémantique: « When I use a word», Humpty Dumpty said, «It means just what I choose it to mean – neither more nor less». «The question is», said Alice, «whether you can make words mean so many different things». «The question is», said Humpty Dumpty, «which is to be Master – that’s all». 1 Introduction Être coupé du monde naturel est une caractéristique dominante de la modernité. Il n’est pas étonnant que cette «déconnection» se reflète dans les processus de production du droit et dans la production du droit elle-même. Des concepts tels que le développement durable n’y échappent pas. En effet, le débat contemporain au sujet du développement durable porte sur la transition vers la durabilité de notre développement et non vers la durabilité de l’environnement.2 Dès lors, qu'elle ait lieu au niveau international, national ou local, la discussion fait référence à un concept fondamental qui fait partie de la sphère du développement durable et qui est l’un des concepts permettant de réconcilier ses dimensions sociales et environnementales: la justice environnementale. Ce concept permet d’aller au-delà de l’intégration des considérations environnementales dans les régimes, politiques publiques et décisions en matière de développement économique, en se souciant des effets qu’elles peuvent avoir sur l’équité entre les générations actuelles et entre les générations actuelles et futures, suivant ainsi le principe 3 de la Déclaration de Rio sur l’environnement et le développement.3 Ce concept de justice environnementale a fait couler beaucoup d’encre chez les juristes du droit international de l’environnement4, et du droit interne de l’environnement dans certaines juridictions, notamment aux États-Unis où le mouvement de la 1 L. Carroll, Through the looking-glass and what Alice found there, Londres, Macmillan and Co., 1927, à la p. 125. 2 K. Bosselmann, The Principle of Sustainability: Transforming Law and Governance, Aldershot, Ashgate Publ., 2008 3 Conférence de Rio sur l’environnement et le développement, Déclaration de Rio sur l’environnement et le développement du 13 juin 1992, Doc off AG NU, Doc NU A/CONF.151/26 (vol. 1). 4 Voir notamment : D. Barstow Magraw, « Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms », (1990) 1 Colo. J. Int’l Envtl. L. & Pol’y 69; D. Borione and J. Ripert, « Exercising Common but Differentiated Responsibility », dans I. M. Mintzer and J. Amber Leonard, dir, Negotiating The Climate Convention: The Inside Story of the Rio Convention, Cambridge, Cambridge University Press, 1994, à la p. 77; A. Magrethe Halvorssen, Equality among Unequals in International Environmental Law: Differential treatment for Developing Countries, Boulder, Westview Press, 1999; D. French, « Developing States and International Environmental Law: The Importance of Differentiated Responsibilities », (2000) 49 The International and Comparative Law Quarterly 35; L.. Rajamani, Differential Treatment in International Environmental Law, Oxford, Oxford University Press, 2006; U. Beyerlin, « Bridging the North-South Divide in International Environmental Law » (2006) 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 259; A. M. Halvorssen, « Common, but Differentiated Commitments in the Future Climate Chang Regime – Amending the Kyoto Protocol to include Annex C and the Annex X Mitigation Fund », (2007) 18 Colo. J. Int’l Envtl. L. & Pol’y 247; C. Okereke, Global Justice and Neoliberal Environmental Governance: Ethics, Sustainable Development and International Co-operation, Londres, Routledge, 2008; S. Lavallée, « Le principe des responsabilités communes mais différenciées à Rio, Kyoto et Copenhague. Essai sur la responsabilité de protéger le climat », Études internationales, Vol. XLI, no 1, Mars 2010, 51-78 ; S. Lavallée et K. Bartenstein, « Le principe des responsabilités communes mais différenciées au regard du développement durable», Colloque « Équité et environnement – Quel(s) modèle(s) de justice environnementale?», Actes du colloque international annuel de la Société française pour le droit de l’environnement, 3 et 4 décembre 2010 (à paraître) ; K. Bartenstein, « De Stockholm à Copenhague : genèse et évolution des responsabilités communes mais différenciées dans le droit international de l’environnement », (2011) 56 :1 RD McGill 177. Sophie Lavallée 2 justice environnementale est né de la lutte pour les droits civiques du mouvement noir, dans les années soixante, afin de remédier à la répartition inéquitable des activités polluantes sur le territoire américain. Les travaux menés par des universitaires, dont le plus connu est le professeur Robert D. Bullard, ont permis de démontrer que l'inégalité sociale et l'inégalité environnementale étaient souvent liées.5 Ce concept de justice environnementale semble avoir de nombreuses origines, de nombreux courants y ayant contribué.6 L’un d’entre eux est attribué aux mouvements de travailleurs qui, dans les années 1960, ont réclamé que les lieux de travail soient exempts de risques, notamment ceux liés à l’utilisation de produits toxiques. Ainsi, le concept de la justice environnementale engloberait la sécurité des travailleurs comme une de ses composantes.7 Le concept de justice environnementale porte en lui-même l’idée d’équité sociale et la préoccupation pour les inégalités, comme ces passages l’expliquent bien: «L'opération innovatrice au niveau conceptuel a été de penser l'environnement non seulement en termes de préservation, mais aussi au plan des droits et de la justice. L'idée centrale en a été que tous les citoyens ont également le droit à un environnement sain, toute structure ou tout processus orientant la dégradation ou les risques environnementaux vers les secteurs vulnérables de la population étant injuste du point de vue social et économique. Cette dégradation, dans les cas où il est impossible de l'éviter, doit être répartie d'une manière équitable entre les différents secteurs de la société. Dans cette perspective, le mouvement contre la destruction et la dégradation environnementales est devenu synonyme d'un espace de lutte démocratique et d'affirmation de l'universalité des droits de l'homme».8 Le concept de justice environnementale a également fait son entrée sur la scène internationale, peu après le mouvement pour un Nouvel Ordre Économique International.9 La théorie originale qu’Édith Brown Weiss10 a développée, et qui s’est retrouvée, en substance, au principe 3 de la Déclaration de Rio sur l’environnement et le développement en est d’ailleurs une bonne illustration. Suivant ce principe, « le droit au développement doit être réalisé de façon à satisfaire équitablement les besoins relatifs au développement et à l’environnement des générations présentes et futures ». Bien que le concept d’équité ait plusieurs significations, et que et la nature précise du concept demeure obscure, nous savons qu’il s’agit d’un terme qui est souvent utilisé comme synonyme de justice («fairness») et cette équité a à la fois des dimensions procédurales et substantives. La dimension procédurale s’intéresse au processus décisionnel alors que la dimension substantive vise la justice distributive. Elles sont interreliées, suivant l'hypothèse que des démarches plus justes mènent à des résultats plus justes. Le concept de la justice environnementale est intimement lié aux 5 R. Doyle Bullard, « Environmental Justice in the Twenty-first Century », dans R. Doyle Bullard, dir, The Quest for Environmental Justice: Human Rights and the Politics of pollution, San Francisco, Sierra Club Books, 2005, à la p. 19; B. E. Hill, Environmental Justice: Legal Theory and Practice, Washington, Environmental Law Institute, 2009; R. Doyle Bullard et al, Toxic Wastes and Race at Twenty: 1987-2007 Grassroots Struggles to Dismantle Environmental Racism in the United States, Cleveland, United Church of Christ, 2007; L. W. Cole et S. R. Foster, From the Ground Up : Environmental Racism and the Rise of the Environmental Justice Movement, New York, New York University Press, 2001. 6 Cole, supra note 5. 7 Cette idée que les risques environnementaux sont injustement distribués aux États-Unis s’est peu à peu confirmée grâce à des dizaines d'études qui ont donné naissance au concept de « racisme environnemental » : Bullard, supra note 5. Lorsqu’en 1994, le Président Clinton a signé une ordonnance exécutive sur la justice environnementale, le phénomène du racisme environnemental a acquis une reconnaissance qui a donné un formidable élan aux communautés d'activistes à travers le pays, et leur a fourni un leitmotiv sans précédent pour lutter pour leurs communautés, leur qualité de vie, leur santé et pour « la justice environnementale » : Executive Order 12898 of February 16, 1994 : Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations, 59(32) Federal Register 7,629. 8 Alliance pour un monde responsable, pluriel et solidaire, Chantier : Justice environnementale, dette écologique et développement durable, en ligne : socioeco.org : http://jades.socioeco.org/fr/documents.php, (Consulté le 2 septembre 2011). 9 C-E. Côté, « De Genève à Doha : genèse et évolution du traitement spécial et différencié des pays en développement dans le droit de l'OMC », (2011) 56:1 RD McGill 115. 10 E. Brown-Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, Dobbs Ferry, Transitional Publishers, Inc., 1989. Un Développement Durable sans Justice « Ecologique » ? 3 concepts d’équité inter et intragénérationnelle puisqu’il cherche à assurer l’équité procédurale et la justice distributive. La dimension procédurale cherche à mettre en place un processus décisionnel fondé sur des critères appropriés ainsi que sur un processus qui implique la participation de ceux qui sont affectés par la décision afin que le résultat obtenu traite tous les groupes concernés équitablement. Dans sa dimension substantive, l’équité rejoint la catégorie des droits de l’homme, le droit de vivre dans un environnement sain. Bien que la littérature soit abondante sur le concept de justice environnementale, beaucoup reste à faire avant qu’il ne se traduise véritablement en droit international, régional et national. Plusieurs enjeux environnementaux d’importance, comme celui sur les changements climatiques11, commande que cette réflexion sur la contribution du droit dans l’établissement d’une plus grande justice environnementale se poursuive, et que le concept de justice environnementale devienne un cadre conceptuel qui s’impose aux négociateurs de régimes environnementaux internationaux et au législateur national afin qu’ils ne négligent pas les questions d’équité sociale. Plusieurs auteurs sont toutefois d’avis que ce cadre conceptuel ne peut pas se développer indépendamment d’une réflexion profonde sur la durabilité du milieu naturel «non humain» et sur la justice «écologique».12 Un développement durable est-il possible sans justice» pour le monde naturel, c’est-à-dire sans justice «écologique» ? Cette question commande de définir d’abord les termes de développement durable et de justice écologique (1). Par la suite, nous tenterons d’imaginer comment la justice écologique pourrait intégrer le droit afin de donner une orientation plus claire au décideur que celle que la conception libérale dominante du développement durable lui donne actuellement (2). Un développement durable sans durabilité écologique. Bien que le développement durable soit désormais considéré par la communauté internationale comme un cadre général13 visant à améliorer la qualité de vie partout dans le monde, et qu’il soit présenté par plusieurs comme l’approche la plus prometteuse pour le maintien d'une planète en bonne santé, des désaccords importants subsistent quant à sa signification précise et quant à ses implications. Le débat oppose les partisans d’une conception faible du développement durable à ceux pour qui seule une conception forte est viable (1.1). Ces derniers proposent que le principe de durabilité soit considéré comme le noyau central du développement durable (1.2). 11 L. Rajamani, « The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime », (2000) 9 RECIELL. 120; B. Müller, Equity in Climate Change: The Great Divide, Oxford, Oxford Institute for Energy Studies, 2002; Halvorssen, supra note 4; Lavallée, supra note 4 12 J. Baird Callicott, « The Case Against Moral Pluralism », (1990) 12:2 Environmental Ethics 99; P.Taylor, « From Environmental to Ecological Human Rights : A New Dynamic in International Law ? », (1998) 10:2 Geo. Int'l Envtl. L. Rev. 309; C. D. Stone, « Should Trees Have Standing ? », (1972) 45 S. Cal. L. Rev. 45; H. Jonas, The Imperative of Responsibility : In Search of an Ethics for the Technological Age, Chicago, University of Chicago Press, 1984. 13 Dans l’Affaire relative au projet Gabcikovo-Nagymaros (Hongrie c Slovaquie), [1997] CIJ rec 92, [Affaire Gabcikovo-Nagymaros], tout en reconnaissant le développement durable comme un « concept », la majorité des juges a indiqué qu’il a un intérêt considérable mais n’a pas procédé à une analyse détaillée de sa normativité. La dissidence du juge Weeramantry (pp. 85-86) présente, certes, un autre point de vue sur la normativité du concept, en affirmant qu’il est davantage qu’un simple concept et que c’est un principe de valeur normative qui fait partie du droit moderne. Cela ne permet toutefois pas pour autant d’inférer qu’il a acquis le statut d’un principe juridique du droit international coutumier dans l’ordre juridique international. Néanmoins, le consensus politique autour du concept du développement durable ne fait pas de doute, les États l’ayant exprimé, en cinq ans plus tard, lors du Sommet de la Terre de Rio. Sophie Lavallée 4 Les conceptions forte et faible du développement durable L’histoire du développement durable nous enseigne que c’est la conception faible de ce concept qui fait aujourd’hui l’objet d’un consensus, et que le principe de durabilité, qui en était autrefois le noyau, a été relégué aux oubliettes. La conception du développement durable a évolué, depuis que le forestier en chef de Saxe, Hans Carl Von Carlowitz, a proposé, dans la Sylvicultura Oeconomica14, que la foresterie de l’époque «soit fondée sur le concept de «Nachhakltogkeit», signifiant «durabilité», en Allemand.15 Cette évolution a été particulièrement importante, ces trente dernières années, grâce aux nombreuses tentatives qui ont été faites pour tenir compte des préoccupations relatives au développement économique, à la protection de l'environnement et au développement social. Le droit n’a pas échappé à ces tentatives, tant et si bien que le développement durable est devenu, du moins en droit de l’environnement, l’approche dominante, depuis que la Commission mondiale sur l’environnement et le développement (CMED ou Commission Brundtland) a rappelé qu’il fallait désormais considérer le développement comme un « développement qui répond aux besoins du présent sans compromettre la possibilité pour les générations futures de répondre à leurs propres besoins.»16 Ce faisant, la Commission Brundtland proposait au monde entier le vaste dessein de s’engager sur la voie du développement durable en cherchant à atteindre une équité à l’intérieur des générations présentes et entre les générations présentes et futures. Ce vaste dessein a été présenté sous le vocable de justice «environnementale», en droit international. Là où le bât blesse, c’est que ce concept de justice environnementale est intrinsèquement anthropocentrique car il cherche à véhiculer, notamment «dans» et «par» le droit, une équité entre les êtres humains vivant aujourd’hui, et entre eux et ceux de demain, mais qu’il néglige de considérer la justice envers le monde naturel non humain.17 Pourtant, la durabilité, telle qu’initialement envisagée par Hans Von Carlowitz, et trois cents ans plus tard, par les rédacteurs de la Charte de la Terre de 1982, visait avant tout la durabilité du monde naturel, étant entendu que l’homme fait aussi partie intégrante de ce milieu naturel.18 Cette conception forte («Strong Sustainability») du développement durable a toutefois peu à peu perdu du chemin au profit de la conception faible («Weak Sustainability») mise de l’avant dans le Rapport Brundtland et a fait l’objet d’un consensus de la communauté internationale qui a pris la forme des 27 principes de la Déclaration de Rio sur l’environnement et le développement, en 1992. 19 Parce que la Commission mondiale sur l’environnement et le développement était d’abord et avant tout préoccupée par la pauvreté dans le monde, elle a mis l’accent sur la justice environnementale et a appelé le monde à concilier la protection de l’environnement et le développement économique, dans l’intérêt des générations actuelles et futures : 14 H.C. Von Carlowitz, Sylvicultura oeconomica, Anweisung zur wilden BaumZucht, Leipitz, rep. Freiberg, TU Bergakademie Freiberg und Akademische Buchlandlung, 2000), 1713. 15 K. Bartenstein, « Les origines du concept de développement durable », (2005) 3 Revue juridique de l’environnement 289; U. Grober, « Tiefe Wurzeln: eine kleine Begriffsgeschichte von «sustainable development» - Nachhaltigkeit », (2002) 3 Natur und Kultur 1. 16 Commission mondiale sur l’environnement et le développement (CMED), Our Common Future, Oxford, Oxford University Press, 1987, ajoute ceci (Chapitre 2): « It contains within it two key concepts : the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs ». 17 Bosselmann, supra note 2. 18 Le préambule de la charte et son texte introductif reconnaissent clairement et explicitement « l’importance suprême de la protection des systèmes naturels », du maintien de l’équilibre et de la qualité de la nature et « de la conservation des ressources naturelles »…« dans l’intérêt des générations présentes et à venir ». De plus, dans la Charte de la Terre, les Nations Unies se disent conscientes dans le préambule que a) « L’humanité fait partie de la nature et la vie dépend du fonctionnement ininterrompu des systèmes naturels qui sont la source d’énergie et de matières nutritives». Charte mondiale de la nature, Doc off AG NU, Doc NU A/RES/37/7 (1982) [Charte mondiale de la nature]. 19 Déclaration de Rio, supra note 3. Un Développement Durable sans Justice « Ecologique » ? 5 «La terre est une; le monde, lui ne l’est pas. Nous n’avons qu’une seule et unique biosphère pour nous faire vivre. Et pourtant, chaque communauté, chaque pays poursuit son petit bonhomme de chemin, soucieux de survivre et de prospérer, sans tenir compte des éventuelles conséquences de ses actes sur autrui. D’aucuns consomment les ressources de la planète à un rythme qui entame l’héritage des générations à venir. D’autres bien plus nombreux consomment peu, trop peu, et connaissent une vie marquée par la faim et la misère noire, la maladie et la mort prématurée.» «Un monde où la pauvreté et l’injustice sont endémiques sera toujours sujet aux catastrophes écologiques et autres». La conception du développement durable du Rapport Brundtland met donc l’accent sur les concepts d’équité intragénérationnelle et intergénérationelle et ne hiérarchise pas les trois piliers du développement durable que sont le développement économique, le développement social et la protection de l’environnement, mais commande plutôt la recherche d’un équilibre entre eux, dont la finalité est la satisfaction des besoins humains actuels et futurs. Cette finalité fait d’ailleurs dire à certains, dont le sociologue Jean-Guy Vaillancourt, que le développement durable est : «(…) une espèce de couvre-lit, mi-scientifique et mi-idéologique, que tous essaient de tirer de leur côté. C’est un cri de ralliement pour ceux qui sont intéressés à travailler au développement et à la protection de l’environnement, à l’harmonisation de l’économie et de l’écologie dans une perspective de justice et d’équité sociale. C’est une formule de compromis qui a émergé graduellement entre 1970 et 1987 entre les militants verts, d’une part, et les partisans du développement dans les pays pauvres mais aussi ailleurs dans le monde, d’autre part».20 Dans l’opinion séparée qu’il signe dans l’affaire du barrage Gabçikovo-Nagymaros, le juge Weeramantry réfère à la réconciliation, qui pourrait s'appliquer dans une situation de recoupement ou de conflit entre des normes contradictoires et de l'importance d'éviter «l'anarchie normative».21 Cette idée n’est pas sans rappeler celle de Vaughn Lowe qui explique que cette conception du développement durable permet d'éviter les conflits et qu’en ce sens, il est un méta-principe qui permet de statuer sur d'autres règles et principes juridiques.22 Pour lui, le développement durable est une notion juridique qui exerce une sorte de normativité interstitielle dans le raisonnement du décideur, l’enjoignant en quelque sorte à équilibrer les diverses dimensions du développement durable, dans un contexte donné.23 La question qui se pose face à une telle conception est celle de savoir si la recherche d’un tel compromis, qui n’est pas a priori orientée vers la durabilité écologique, peut donner une véritable orientation au décideur ou doit-il constamment répondre à la question de Wilfred Beckerman : «How Would you Like your 'Sustainability', Sir? Weak or Strong?» 24 Cette question pose celle de savoir quels devraient être les objectifs de nos politiques environnementales. Devrait-on protéger l'environnement à tout prix, ou seulement dans la mesure où cela permet de combler les besoins des hommes aujourd’hui et ceux de demain? Doit-on le protéger dans la mesure seulement où les avantages environnementaux de cette protection en dépassent les coûts économiques ? Comment le droit qui encadre les processus décisionnels doit-il tenir compte de la valeur des coûts et des avantages futurs d’une réglementation ou d’un régime juridique par rapport à ceux qu’ils présentent aujourd'hui? Comment doivent-ils tenir compte des risques incertains par rapport aux risques certains? Est-ce que le «développement durable» peut l’aider à répondre à ces questions ?25 Une critique récurrente concerne la généralité du concept du 20 J-G. Vaillancourt, « Penser et concrétiser le développement durable », (1995) 15 Ecodécision 24, à la p. 25. 21 Affaire Gabcikovo-Nagymaros, supra note 13, à la p. 90 (opinion du juge Weeramantry). 22 V. Lowe, « Sustainable Development and Unsustainable Arguments », dans A. Boyle et D. Freestone, dir, International Law and Sustainable Development: Past Achievements and Future Challenges, Oxford, Oxford University Press, 2001, à la p. 31. 23 Ibid p. 31. 24 W. Beckerman, « How Would you Like your 'Sustainability', Sir? Weak or Strong? A Reply to my Critics » (1995) 4:2 Environmental Values 169. 25 Bosselmann, supra note 2; D. Bodansky, The Art and Craft of International Environmental Law Boston, Harvard University Press, 2010. Sophie Lavallée 6 développement durable formulé dans le Rapport Brundtland, et détaillé dans les principes de la Déclaration de Rio, en 1992. Selon plusieurs, le flou qui l’entoure en fait un concept insignifiant qui ne peut pas fournir une orientation suffisamment claire au décideur. Pire, ce concept est un véhicule puissant pour les théories économiques libérales et néo-libérales qui privilégient des politiques publiques fondées sur des analyses économiques en termes de coûts et de bénéfices, et non sur des valeurs telles que celles que sous-tendent la justice environnementale et la justice écologique. Dans son ouvrage The Art and Craft of the International Environmental Law, Daniel Bodansky explique la différence qui existe entre les conceptions écocentriques et anthropocentriques- utilitaristes de la protection de l’environnement. Sa caricature montre un bûcheron avec une scie qui trouve un arbre qui porte un écriteau sur lequel on peut lire «the very last tree», et qui se dit «the very last chair». Il y a un monde qui sépare ce bûcheron et la personne qui trouve qu’il est problématique de couper des arbres en milieu sauvage parce que cela entraîne la destruction de forêts anciennes. Pour le premier, tant et aussi longtemps que les arbres restent en quantité suffisante pour satisfaire les besoins de l’homme, il n’y a pas de problème.26 C’est cette approche qui est privilégiée dans le Rapport Brundtland et la Déclaration de Rio qui proposent à nos sociétés occidentales de faire leurs analyses en termes de compromis et de recherche d’un équilibre entre les coûts et les avantages afin d’obtenir un résultat optimal pour l’homme. Ces approches économiques de la protection de l’environnement sont d’ailleurs encouragées par le droit dans plusieurs pays, notamment dans ce qu’on appelle les processus de réglementation intelligente, dont l’application est prônée par l’OCDE.27 Ce processus relègue toutefois le plus souvent aux oubliettes le cœur même du développement durable : le principe de durabilité. Le principe de durabilité relégué aux oubliettes Le principe de durabilité est souvent le grand oublié lorsqu’on évoque actuellement le développement durable. En effet, les auteurs évoquant le développement durable font référence à ses principes structurants : le principe d’intégration de l’environnement au développement (principe 4 Déclaration de Rio sur l’environnement et le développement), l’équité intergénérationelle (principe 3 Déclaration de Rio sur l’environnement et le développement) et l’équité intragénérationnelle (principe 3 Déclaration de Rio sur l’environnement et le développement). Ils font également état de ses principes opérants, c’est- à-dire à ceux qui permettent de mettre en œuvre les principes structurants : le pollueur-payeur, la prévention, la précaution, les responsabilités communes mais différenciées. Ils négligent toutefois souvent de mentionner, parmi les principes structurants du développement durable, celui de la durabilité. Dans un texte sur les principes du droit international de l’environnement, Philip Sands évoque, quant à lui, parmi les principes-clés du développement durable, le non-épuisement des ressources naturelles renouvelables (non-exhaustion of renewable natural resources).28 Malgré le quasi-silence du droit contemporain à son sujet, le principe de durabilité existe depuis des siècles et n’a jamais eu aucun autre objet que la protection de la base des ressources 26 Ibid à la p. 59. 27 Organisation de Coopération et de Développement Économiques, Analyse de l'impact de la réglementation: meilleures pratiques dans les pays de l'OCDE, Paris, OCDE, 1997; J. H. Guth, « Resolving the Paradoxes of Discounting in Environmental Decisions », (2009) 18 Transnat'l L. & Contemp. Probs. 95; P. Issalys, « L’analyse d’impact des lois et règlements : impératif d’efficacité ou condition de légitimité ? », dans S. Beaulac, M. Devinat, dir, Interpretatio non cessat : Mélanges en L’honneur de Pierre-André Côté, Cowansville, Éditions Yvon Blais, 2011, à la p. 133; M. J. Trebilcock, « The Consumer Interest and Regulatory Reform » dans G. Bruce Doern, dir, The Regulatory Process in Canada, Toronto, Macmillan, 1978, 94. 28 P. Sands, « International Law in the Field of Sustainable Development », (1995) 65:5 British Yearbook of International Law 303, à la p. 338. Un Développement Durable sans Justice « Ecologique » ? 7 naturelles.29 Alors que cet objet a été élargi à travers le temps et qu’il est passé des ressources locales dans les temps anciens aux écosystèmes, dans la période récente, le principe de la durabilité écologique n'a jamais changé. Klaus Bosselmann est convaincant lorsqu’il écrit que ce noyau qu’est la «durabilité» ne peut pas être différent de ce que signifie le mot «durable» dans le contexte du «développement» et que le fait que les aspects économiques et sociaux soient inclus dans le concept de «développement durable» ne puisse pas, par conséquent, créer un écart par rapport au cœur écologique. Selon lui, c’est au contraire seulement à cause de ce noyau qu’il est possible de relier les composantes sociales et économiques du développement à un point de référence central. Le développement n’est durable que s’il tend à préserver l'intégrité et la pérennité des systèmes écologiques, et il est non durable et insoutenable s’il tend à faire autrement. Autrement dit, «No economic prosperity without social justice and no social justice without economic prosperity, and both within the limits of ecological sustainability. As a norm this can be formulated as the obligation to promote long-term economic prosperity and social justice within the limits of ecological sustainability.»30 Gerd Winter explique à juste titre que le potentiel dynamique des principes est fondé sur leur statut quelque peu insaisissable derrière la scène.31 Bosselmann fait, quant à lui, la démonstration que le développement durable fournit des indications suffisamment précises pour en faire une norme au caractère déterminé et prescriptif. Il reconnaît que cette conclusion est encore ouverte au débat mais ajoute qu’on peut soutenir qu’il s’agit d’un principe juridique en émergence. Selon lui, le développement durable a les caractéristiques d’un principe juridique mais n'a pas encore été reconnu comme tel par le droit international.32 La dégradation de l’environnement dépend du progrès technologique et de l’organisation sociale.33 Par conséquent, l’environnement est au centre des politiques et des débats contemporains en matière de justice distributive, qu’il s’agisse d’en distribuer les ressources, les moyens de les exploiter ou même de s’en protéger. Comment le principe de durabilité peut- il être considéré comme une question de justice alors qu’il s’intéresse aux processus écologiques et à la capacité de charge de nos écosystèmes et non pas aux relations qu’entretiennent les hommes entre eux ? Parce que son application se faisant dans un contexte qui implique des choix entre des besoins concurrents, des questions de justice distributive se posent inévitablement et le droit a alors un rôle à jouer pour déterminer dans quelle mesure et comment les systèmes écologiques doivent être maintenus. Pour de nombreux éthiciens de l’environnement34, deux relations sont donc à considérer lorsqu’on appréhende les questions qui se posent en matière de protection de l’environnement: 1) La justice relative à la distribution de l’environnement entre les personnes qu’on désigne sous le vocable de justice «environnementale». 2) La justice entre les humains et le reste du monde naturel que l’on désigne sous le vocable de justice «écologique». La justice «écologique» est un concept qui a été élaboré par certains courants de la discipline de l’éthique environnementale et que les juristes ont peu exploré. La littérature juridique a plutôt été 29 U. Grober, « Tiefe Wurzeln: eine kleine Begriffsgeschichte von «sustainable development» - Nachhaltigkeit », (2002) 3 Natur und Kultur 1 30 Bosselmann, supra note 2, à la p. 53. 31 G. Winter, « The Legal Nature of Environmental Principles in International, EC and German Law », dans R. Macrory, dir, Principles of European Environmental Law, Groningen, Europa Law Publishing, à la p. 25. 32 Bosselmann, supra note 2, aux p. 53 et 56; « With respect to the concept of sustainable development, the principle provides important guidance to make the concept operable. Whether this amounts to determinable legal content, making sustainable development a legal principle, is a matter of debate. In what follows, I will argue in favour of a legal principle, but one that has not yet been recognized as such by international law ». 33 Rapport Brundtland, supra note 16, Chapitre 2 - « Towards Sustainable Development ». 34 A. Dobson, (1996), « Environmental Sustainability: An Analysis and Typology », Environmental Politics 5, 401; A. Johnson, « Barriers to Fair Treatment of Non Human Life », dans D. Cooper et J. Palmer, dir, Just Environments – Intergenerational, International and Inter-Species Issues, Londres, Routledge, 1995, à la p. 165; V W. Ruttan, « Sustainability is Not Enough », (1988) 3 American Journal of Alternative Agriculture 128. Sophie Lavallée 8 influencée par les théories classiques de la justice qui la conceptualisent comme une notion qui s’intéresse à la distribution équitable des biens et des charges entre des personnes et non entre des personnes et le milieu naturel. C’est d’ailleurs pourquoi l’expression «justice environnementale», appropriée pour décrire les problèmes de répartition sociale en matière d’environnement, a eu plus d’écho chez les juristes de l’environnement que celle de la «justice écologique». Les développements dans le domaine de l'éco-justice peuvent globalement être catégorisés selon deux approches: l'approche libérale et l’approche écologique. L’approche libérale est celle qui correspond à la théorie de John Rawls, pour qui la relation homme-nature n’est pas une question de justice mais plutôt une question d’éthique et de morale. Cette conception libérale des questions environnementales permet de les considérer comme des idéaux qui peuvent concourir démocratiquement contre d’autres idéaux.35 Rawls a toujours été clair sur cette exclusion. Selon lui, le monde naturel et notre relation avec lui n'est pas une question constitutionnelle indispensable ou une question fondamentale de justice. Bien qu'il ait reconnu des «devoirs» à l’égard du monde naturel, il les décrit comme des «devoirs de compassion et d'humanité», plutôt que les devoirs de justice.36 Les écologistes, au contraire, tentent d'introduire le respect pour les «non-humains» dans la notion de justice, en faisant évoluer le cadre juridique constitutionnel pour garantir une véritable prise en compte des préoccupations liées à l’état de la nature.37 L'approche écologique du développement durable critique la croissance économique et promeut la durabilité écologique tandis que l’approche environnementale du développement durable assume le bien-fondé ou la nécessité de la croissance économique et l'égale importance de la durabilité environnementale, de la justice sociale et de la prospérité économique. Cette dernière approche est celle qui a été mise de l’avant à Rio. Elle s’éloigne clairement du Rapport publié par le Club de Rome, vingt ans plus tôt, qui prônait une Halte à la croissance.38 Elle s’éloigne évidemment aussi du principe premier de la Déclaration de Stockholm, qui appelait la communauté internationale à reconnaître le droit de l’homme à l’environnement. En effet, l’approche environnementale considère que le respect de l’homme pour le milieu naturel non-humain ne doit pas être considéré comme une question relevant de la justice mais bien comme une question relevant de l’éthique et de la morale. Selon cette conception, le décideur n’a pas à considérer le droit fondamental de la nature. Il ne doit considérer l’environnement que comme un intérêt à prendre en compte dans l’équilibre des intérêts ou des préférences divergentes. Contrairement à cette dernière conception libérale qui influence depuis plusieurs années la production du droit au plan international et national, certains écologistes tentent de définir l’objectif des politiques non pas en termes d’équilibre mais en terme d’absolu, allant même jusqu’à proposer le terme de justice écologique. Pour ces derniers, il faut privilégier les approches qui visent la prévention de la pollution et la préservation des espèces par le moyen d’instruments juridiques qui donnent une place centrale au principe de durabilité. Selon eux, la réalisation du développement durable exige que les ressources naturelles soient utilisées d'une manière écologiquement durable. Pour ce faire, le droit ne peut pas seulement mettre en place des institutions et des réglementations ponctuelles mais doit assurer une place élevée au principe de durabilité dans la hiérarchie des normes juridiques, en reconnaissant des droits à la nature. En effet, en pensant à la nature en termes de droits, on tente de concevoir la protection de l’environnement en termes «absolus»39 puisque le 35 Bosselmann, supra note 2, à la p. 93. 36 J. Rawls, Political Liberalism, Oxford, Oxford University Press, 1993, à la p. 246 : « status of the natural world and our proper relation to it is not a constitutional essential or a basic question of justice ». 37 B. Almond, « Rights and Justice in Environmental Debate », dans D. Cooper et J. Palmer, dir, Just Environments – Intergenerational, International and Inter-Species Issues, Londres, Routledge, 1995, à la p. 6; C. D. Stone, Earth and Other Ethics: The Case for Moral Pluralism, New York, Harper and Row, 1987; K. Bosselmann, When Two World Collide: Ecology and Society, Auckland, RSVP, 1995; J. Baird Callicott, « The Case Against Moral Pluralism », (1990) 12:2 Environmental Ethics 99. 38 D. H. Meadows et al, The Limits to Growth, Universe books, 1972. 39 Pour emprunter l’expression de Daniel Bodansky dans The Art and Craft of International Environmental Law. Harvard University Press, 2010, pp. 59-60. Un Développement Durable sans Justice « Ecologique » ? 9 principal avantage des droits fondamentaux est de placer les droits de la nature au sommet de la pyramide du droit positif. En lui conférant une place de choix dans la hiérarchie des normes juridiques, on ne reste plus sur le terrain des préférences qui peuvent être modifiées au gré de la politique. On se retrouve sur le terrain des droits qu’il faut maintenant confronter et équilibrer, les uns et les autres, ce qui est un défi plus important. Un développement durable sans justice écologique La reconnaissance progressive du droit de l’homme à l’environnement En 1972, la Déclaration de Stockholm invitait la communauté internationale à reconnaître le lien qui existe entre les droits de l’homme et un environnement sain mais n’allait pas jusqu’à reconnaître des droits à la nature : Principe 1. L'homme a un droit fondamental à la liberté, à l'égalité et à des conditions de vie satisfaisantes, dans un environnement dont la qualité lui permette de vivre dans la dignité et le bien- être. Il a le devoir solennel de protéger et d'améliorer l'environnement pour les générations présentes et futures. A cet égard, les politiques qui encouragent ou qui perpétuent l'apartheid, la ségrégation raciale, la discrimination, les formes, coloniales et autres, d'oppression et de domination étrangères sont condamnées et doivent être éliminées. Ce principe premier de la Déclaration de Stockholm affirmait qu’un environnement sain est nécessaire à la jouissance des autres droits de l’homme.40 Bien que la Déclaration de Stockholm soit un instrument international n’ayant pas formellement de caractère obligatoire selon l’article 38.1 du Statut de la Cour internationale de justice, sa portée est considérable puisque le lien fondamental qu’elle dessine entre l’environnement et les droits et libertés de l’homme, fournit alors une motivation philosophique et juridique à l’élaboration du droit de l’homme à l’environnement.41 Depuis 1972, on assiste au développement de ce qu’il est convenu d’appeler «le droit à un environnement sain ou de qualité». Ce droit, expliquait Kiss, soutient le même objectif principal que le droit de l’environnement, soit « la protection des humains par un milieu de vie adéquat »42. Ce qui les distingue, c’est que le droit de l’environnement – désigné comme l’ensemble des législations en matière d’environnement – est opéré par les pouvoirs publics, alors que le droit à l’environnement est un droit fondamental de l’homme à qui il appartient de le faire valoir face à l’État, aux entreprises et aux particuliers qui ne le respecteraient pas. Le droit à l’environnement rejoint ainsi les droits fondamentaux de la personne et plusieurs fondent leur espoir dans ses possibilités d’assurer la protection de l’environnement, allant même jusqu’à affirmer qu’il est le moyen le plus sûr pour y arriver, à condition de garantir des droits procéduraux adéquats aux individus pour lui conférer une efficacité réelle. C’est d’abord au plan international que certains ont plaidé en faveur de la reconnaissance d’un droit à l’environnement comme droit découlant d’une troisième génération des droits de l’homme. Il est vrai que depuis ses débuts, le droit international de l’environnement n’a pas réussi à imposer de limites universelles aux pratiques environnementales qui doivent être respectées dans chacun des États43 . C’est 40 S. A. Atapattu, « The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healty Environment under International Law », (2002) 16:1 Tulane Environmental Law Journal 65, à la p. 67. 41 A. Mararewicz, La protection internationale du droit à l’environnement, dans P. Kromarek, dir, Environnement et droits de l’homme, Paris, UNESCO, 1987, aux p. 80 et 81. 42 A. Kiss, « Définition et nature juridique d’un droit de l’homme à l’environnement », dans P. Kromarek, dir, Environnement et droits de l’homme, Paris, UNESCO, 1987, à la p. 17; «Quel droit à l’environnement? Historique et développement». dans P. Kromarek (dir.), Environnement et droits de l’homme, Paris, UNESCO, 1987, p. 17; A. Tremblay, « Regard sur l’évolution du concept de droit à l’environnement », (2005) 18 R.J.E.U.L 5 43 Parmi ces derniers, Grandbois et Bérard dénoncent que cette « opposition constante des grandes entreprises à toute idée d’universalisation des normes environnementales ait confiné le droit international de l’environnement aux engagements les plus souples », M. Grandbois et M-H Bérard, « La reconnaissance internationale des droits Sophie Lavallée 10 notamment pour cette raison que plusieurs environnementalistes ont commencé à réclamer, parallèlement au droit de l’environnement classique dont l’efficacité repose sur l’action administrative et étatique, la reconnaissance d’un droit à l’environnement, différent, dont l’efficacité reposerait sur l’individu, qui en serait le titulaire mais qui serait également débiteur de certains devoirs à son égard. La Déclaration universelle des droits de l’homme ainsi que le Pacte international relatif aux droits civils et politiques de 1966, définissent l’essentiel des droits civils et politiques, droits de première génération pour lesquels les révolutionnaires français et américains se sont battus : droit à la vie et à la sécurité de sa personne, liberté d’aller et venir, liberté de pensée, liberté d’expression, liberté de presse et de religion, droit à une défense pleine et entière, présomption d’innocence, égalité de tous devant la loi. Ces « droits-libertés », opposables à l’État, sont directement «justiciables» pour les individus devant les tribunaux de droit commun ou devant des instances internationales, telles que le Comité des droits de l’homme créé par le Pacte international relatif aux droits civils et politiques, en 1966. Alors que les droits de l’homme des deux premières générations sont reconnus dans les instruments universels des droits de l’homme que sont la Déclaration universelle des droits de l’homme de 1948 et les deux Pactes de 1966, les nouveaux droits au développement, à la paix ou à l’environnement, qui sont apparus dans la littérature juridique internationale il y a une vingtaine d’années,44 ne le sont pas. En effet, la Déclaration Universelle des Droits de l’Homme, adoptée par l’Assemblée générale des Nations Unies, le 10 décembre 1948, ne reconnaît pas expressément le droit de l’homme à l’environnement, même si elle reconnaît dans son préambule le caractère fondamental de la «dignité inhérente à tous les membres de la famille humaine et de leurs droits égaux et inaliénables», qu’elle proclame à son article 3 que «tout individu a droit à la vie, à la liberté et à la sûreté de sa personne»45 et à son article 25 que «toute personne a droit à un niveau de vie suffisant pour assurer sa santé, son bien-être et ceux de sa famille». Dans ce contexte, comme l’explique Déjeant-Pons, la «santé n’est pas perçue comme conditionnée par le cadre et le milieu de vie de l’homme»46, mais par «l’alimentation, l’habillement, le logement, les soins médicaux ainsi que (…) les services sociaux nécessaires».47 En 1966, les droits de l’homme connaissent une évolution importante grâce aux Pactes internationaux adoptés sous l’égide des Nations Unies, l’un pour protéger les droits civils et politiques, l’autre pour protéger les droits économiques, sociaux et culturels. Le petit nombre de communications individuelles qui ont été présentées au Comité des droits de l’homme en invoquant qu’une atteinte à l’environnement a entraîné une violation de l’un des droits de l’homme protégés par le Pacte international relatif aux droits civils et politiques, notamment le droit à la vie, est surprenant. En effet, le droit à la vie, droit civil et politique, est évidemment le plus fondamental de tous les droits de l’homme. Il s’agit d’un droit inhérent à la personne qui précède le droit positif48, d’une norme erga omnes opposable à tous les acteurs et qui relève des normes du jus cogens pour lesquelles « aucune dérogation n’est permise ».49 Prévu à l’article 3 de la Déclaration universelle des droits de l’homme et à l’article 6 du Pacte international relatif aux droits civils et politiques, il constitue l’assise de tous les autres droits fondamentaux et « doit être protégé par la loi et nul ne peut être arbitrairement privé de la vie ». Une atteinte à (Contd.) environnementaux : le droit de l’environnement en quête d’effectivité », (2003) 44 :3 Les Cahiers de droit 427, à la p. 429. 44 D. Rousseau, « Les droits de l'homme de la troisième génération » dans Louis Favoreu et al, Droit constitutionnel et droits de l'homme : rapports français au IIe Congrès mondial de l'Association internationale de droit constitutionnel, Paris-Aix-en- Provence, Paris, Economica, 1987, à la p. 125. 45 Déclaration universelle des droits de l’homme, Rés AG 217(III), Doc off AG NU, 3e sess, supp n° 13, Doc NU A/810 (1948). 46 M. Dejeant-Pons, « L’insertion du droit de l’homme à un environnement dans les systèmes régionaux de protection des droits de l’homme », (1991) 3 Revue universelle des droits de l'homme, 461, à la p. 462. 47 Déclaration universelle des droits de l’homme, supra note 49, art. 25. 48 P. Steichen, « Évolution du droit à la qualité de vie, de la protection de la santé à la promotion du bien-être », (2000) 3 RJE 361. 49 Convention de Vienne sur le droit des traités, 23 mai 1969, 1155 RTNU 331, à l’art. 52. Un Développement Durable sans Justice « Ecologique » ? 11 l’environnement peut causer une atteinte à la vie des gens.50 Tel est l’argument qu’un groupe de 129 citoyens canadiens a soumis au moyen d’une communication individuelle logée contre le Canada devant le Comité des droits de l’homme, le 11 avril 1980. Alléguant que des déchets radioactifs, d’abord produits par une société d’État fédérale et ensuite entreposés à proximité de leurs résidences lors d’une opération de décontamination entreprise par l’Agence de contrôle de l’énergie atomique, menaçaient leur droit à la vie et celui des générations futures, ces citoyens demandaient au Comité des droits de l’homme d’ordonner au gouvernement canadien d’enlever tous les déchets radioactifs de la région de Port Hope, en Ontario. Après avoir reconnu que la communication soulevait des questions sérieuses en regard de l’obligation du gouvernement du Canada de protéger la vie humaine, droit garanti par l’article 6(1) du Pacte international relatif aux droits civils et politiques, le Comité des droits de l’homme, bien que reconnaissant l’intérêt pour agir de l’auteur de la communication, la déclare inadmissible puisqu’il n’a pas épuisé ses recours en droit interne et qu’il n’a pas démontré que s’il les intentait, ces recours internes seraient déraisonnablement prolongés.51 Plusieurs textes internationaux de droit mou (soft law) ont été adoptés à la suite de la Conférence de Stockholm. En 1980, la Stratégie mondiale de la conservation de l’UICN, du PNUE et du WWF, réitère les incantations de la Déclaration de Stockholm, en clamant que l’homme doit maintenir les processus écologiques essentiels maintenant la vie, préserver la diversité biologique et veiller à l’utilisation durable des espèces et des écosystèmes.52 En 1982, la Charte mondiale de la nature, texte de principe adopté par l’Assemblée générale des Nations Unies, énonce que «Toute personne aura la possibilité, en conformité avec la législation de son pays, de participer, individuellement ou avec d’autres personnes, à l’élaboration des décisions qui concernent directement son environnement et, au cas où celui-ci subirait des dommages ou des dégradations, elle aura accès à des moyens de recours pour en obtenir réparation.»53 Le Pacte international relatif aux droits économiques, sociaux et culturels a été adopté et ouvert à la signature et à la ratification par l’Assemblée générale des Nations Unies dans sa résolution 2200A (XXI) du 16 décembre 1966, après près de deux décennies de débats sur le texte. Le Pacte est entré en vigueur dix ans plus tard, soit le 3 janvier 1976 et 160 États, dont le Canada54, l’avaient ratifié, en date du 6 avril 2009. Ce Pacte a été adopté et ouvert à la signature et à la ratification par l’Assemblée générale des Nations Unies dans sa résolution 2200A (XXI) du 16 décembre 1966, après près de deux décennies de débats sur le texte. Le Pacte est entré en vigueur dix ans plus tard, soit le 3 janvier 1976 et 154 États l’avaient ratifié le 1er septembre 2005.55 Le respect des droits de l’homme par les États parties au Pacte fait l’objet de suivis par le Comité des 50 B. G. Ramcharan, The Right to life, (1983) 30 NILR 297, à la p. 310, citant A.A Cancado Trindade, « The parallel evolutions of international human rights protection and of environmental protection and the absence of restrictions upon the exercise of recognized human rights », (1991) 13 Revista del Instituto interamericano de Derechos Humanos 50, Conseil économique et social, Commission des droits de l’homme, Examen des faits nouveaux intervenus dans les domaines dont la Sous-Commission s’est déjà occupée, Droit de l’homme et environnement, Rapport final établi par Mme Fatma Zohra Ksentini, Rapporteur spécial, E/CN.4/Sub.2/1994/9, 26 juillet 1994, version française, p. 51. 51 Communication no 67/1980, EHP v. Canada, CCPR/C/17/D/67/1980, par. 8: « The Committee observes that the present communication raises serious issues, with regard to the obligation of States Parties to protect human life (article 6 (1))». Le Comité reconnaît l’intérêt pour agir de l’auteur de la communication puisqu’il allègue subir lui- même une violation de son droit à la vie, et précise qu’il n’a pas à se pencher sur l’intérêt qu’il a d’agir dans l’intérêt des générations futures mais qu’il considère que si le Comité faisait droit à la communication de l’auteur, cette décision protègerait évidemment les générations futures aussi. 52 UICN/PNUE/WWF, Stratégie mondiale de la conservation, Gland, UICN/PNUE/WWF, 1980 : la conservation des ressources vivantes au service du développement durable, Union internationale pour la conservation de la nature et de ses ressources, Programme des Nations Unies pour l'environnement et Fonds mondial pour la nature, Gland, Suisse; Dejeant-Pons, supra note 50, à la p.461. 53 Charte mondiale de la nature, supra note 18, principe 23. 54 Le Canada a ratifié le Pacte relatif aux droits économiques, sociaux et culturels, le 19 mai 1976. Voir l’état des ratifications, en ligne : Treaties.un.org http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=321&chapter=4&lang=fr. 55 Pacte international relatif aux droits économiques, sociaux et culturels, 16 décembre 1966, 993 RTNU 3 (entrée en vigueur : 3 janvier 1976). Sophie Lavallée 12 droits économiques, sociaux et culturels, organe subsidiaire du Conseil économique et social des Nations Unies (ECOSOC), qui fait des recommandations à la suite de l’examen des rapports soumis par les États parties au Pacte « sur les mesures qu’ils auront adoptées et sur les progrès accomplis en vue d’assurer le respect des droits reconnus dans le Pacte. »56 Le Pacte prévoit, à son article 12 « le droit qu’a toute personne de jouir du meilleur état de santé physique et mental qu’elle soit capable d’atteindre ». Jusqu’à tout récemment, aucun mécanisme de contrôle des dispositions de ce Pacte n’était accessible aux particuliers. Par conséquent, cette disposition n’a pas été invoquée par un particulier pour faire valoir le droit à l’environnement. Toutefois, cette situation pourra être modifiée prochainement si le Protocole facultatif 57 au Pacte entre en vigueur, ce qui instaurera la possibilité de communications individuelles. Un particulier ou un groupe de particuliers pourra se plaindre, par voie de communication au Comité, qu’une situation de pollution non réglée par les autorités nationales, porte atteinte à sa santé. Pour que sa communication soit recevable, le particulier devra avoir épuisé ses recours en droit interne. De plus, la dégradation de l’environnement devra être d’un niveau tel qu’elle portera atteinte à la santé. Ceci posera évidemment une difficulté de preuve plus importante que dans les cas d’une atteinte environnementale où aucune atteinte à un droit de l’homme n’est invoquée. En effet, le particulier devra faire la démonstration, dans sa communication, du lien de causalité entre l’atteinte environnementale et l’atteinte à la santé de l’homme, entraînant une violation de son droit à la santé. Seul l’avenir nous dira si le Comité fera une interprétation restrictive du droit à la santé ou lui donnera, au contraire, une interprétation libérale qui favorisera une évolution significative de ce droit garantit par le Pacte. Deux conventions internationales reconnaissent également le droit à l’environnement, dans des contextes particuliers. La Convention relative aux droits de l’enfant58, adoptée le 20 novembre 1989 et à laquelle le Canada est partie, protège, à son article 24, le droit à l’environnement afin de garantir le droit de l’enfant de jouir du meilleur état de santé possible mais il n’existe pas de procédure de plainte individuelle devant le comité des droits de l’enfant. La Convention 169 du 27 juin 1989 sur les peuples indigènes et tribaux dans des pays indépendants,59 adoptée par l’Organisation internationale du travail le 27 juin 1989 et entrée en vigueur le 5 septembre 1991, fait également référence au droit à l’environnement en imposant aux États de prendre des mesures spéciales pour sauvegarder l’environnement de ces peuples, à son article 4, premier alinéa. Au plan régional, la Charte africaine des droits de l’homme et des peuples de 198160, est le premier traité international sur les droits de l’homme qui a énoncé expressément, à son article 24, que « [t]ous les peuples ont droit à un environnement satisfaisant et global, propice à leur développement ». Ce texte est intéressant non seulement parce qu’il origine du Tiers-Monde et qu’il est le premier texte à avoir reconnu un caractère obligatoire au droit à l’environnement mais parce qu’il le garantit de manière collective, pour des «peuples» et non seulement pour des individus. La Commission africaine des droits de l’homme a eu à se pencher sur diverses communications61 contre le Zaïre et a conclu que le manquement du gouvernement zaïrois à fournir les services de base tels que l’accès à une eau potable constituait une violation de 56 Ibid article 16 § 1 er . 57 Protocole facultatif se rapportant au Pacte international relatif aux droits économiques, sociaux et culturels, le 10 décembre 2008, Doc.A/63/435; C.N.869.2009.TREATIES-34 (non encore en vigueur). 58 Convention relative aux droits de l’enfant, 20 novembre 1989, 157(entrée en vigueur : 2 septembre 1990). 59 Convention (No 169) concernant les peuples indigènes et tribaux dans les pays indépendants, 27 juin 1989, 1650 RTNU 383 (entrée en vigueur : 5 septembre 1991). Le Canada n’a pas ratifié cette dernière convention puisqu’il craignait qu’elle puisse contribuer à la reconnaissance du droit à l’autodétermination des populations autochtones en droit international : Jill Wherret, Les peuples autochtones et le référendum de 1995 au Québec : les questions qui se posent, gouvernement du Canada, février 1996, [en ligne] : parl.qc.ca http://www.parl.gc.ca/Content/LOP/ResearchPublications/bp412-f.htm. 60 Charte africaine des droits de l’homme et des peuples, 27 juin 1981, 1520 RTNU 217 (entrée en vigueur : 21 octobre 1986). 61 Communications 25/89, 47/90, 56/91 et 100/93. Un Développement Durable sans Justice « Ecologique » ? 13 l’article 16 garantissant le droit fondamental à la santé.62 Le système interaméricain des droits de l’homme comprend, quant à lui, trois niveaux d’engagements. 63 Le premier est le système le moins exigeant64, soit la Déclaration américaine des droits et des devoirs de l’Homme de 1948 qui lie65 les 35 États de l’Organisation des États américains (O.É.A.) et qui est appliquée par la Commission interaméricaine des droits de l’homme ne disposant que d’un pouvoir moral à la suite de pétitions qui lui sont adressées par des particuliers.66 Les deux autres niveaux d’engagements sont plus exigeants : le système édifié à partir de la Convention américaine relative aux droits de l’homme de San José, de 1969 67 qui permet des plaintes individuelles et des plaintes étatiques à la Commission interaméricaine des droits de l’homme qui agit, cette fois, comme médiateur, et le système renforcé du Protocole additionnel à la Convention américaine relative aux droits de l’homme, traitant des droits économiques, sociaux et culturels adopté à San Salvador (Protocole de San Salvador), le 14 novembre 1988. Ce protocole énonce le droit à un environnement salubre à son article 11, lequel consacre un caractère fortement anthropocentrique au droit garanti puisqu’il lie le droit à l’environnement à la santé.68 Les requêtes individuelles prévues aux articles 44 à 51 et 61 à 69 de la Convention américaine relative aux droits de l’homme ne peuvent pas être utilisées pour faire valoir le droit à l’environnement puisque seule les violations de l’article 8 a)69 ou de l’article 1370 , rendent possible le recours à la Commission interaméricaine des droits de l’homme et, le cas échéant, à la Cour interaméricaine des droits de l’homme.71 La Commission interaméricaine des droits de l’homme a toutefois quand même eu à se pencher sur les liens existants entre la destruction de l’environnement et d’autres droits garantis par la Déclaration américaine des droits et devoirs de l’homme, dont le droit à la vie, notamment en réponse à une requête logée par des autochtones Yanomani du Brésil. Dans cette affaire, la requête alléguait que le gouvernement du Brésil avait violé le droit des Yanomani à la liberté, à la sécurité et à l’intégrité de la personne, garanti par l’article I de la Déclaration américaine des droits et devoirs de l’homme, leur droit de résidence et de mouvement garanti par l’article VIII et leur droit à la santé garanti par l’article XI. Cette requête alléguait qu’en construisant la route transamazonienne qui traverse leur territoire, le gouvernement du Brésil avait violé le droit à la vie puisqu’il avait délogé les autochtones de leurs 62 Dans cette affaire, il faut remarquer que le droit à l’environnement n’a pas été plaidé bien que l’article 24 de la Charte africaine des droits de l’homme le garantisse. 63 J-M Arbour et G. Parent, Droit international public, 5 e éd., Cowansville, Éditions Yvon Blais, 2006. 64 Il est d’ailleurs notable que les États-Unis et le Canada n’aient adhéré qu’à cette Déclaration et non aux deux Protocoles qui composent le système interaméricain des droits de l’homme : « Améliorer le rôle du Canada dans l’OEA : L’adhésion du Canada à la Convention américaine relative aux droits de l’Homme », Rapport du Comité sénatorial permanent des droits de la personne, mai 2003 (communiqué du comité sénatorial permanent disponible enligne : http://www.parl.gc.ca/37/2/parlbus/commbus/senate/com-f/huma-f/press-f/28may03-f.htm). 65 Dans son avis consultatif du 14 juillet 1989, la Cour interaméricaine des droits de l’homme a jugé que la Déclaration américaine des droits et des devoirs de l’Homme avait une valeur normative et qu’elle faisait partie du droit interaméricain : Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, OC-10/89, 14 juillet 1989. 66 Art. 18 du Statut de la Commission interaméricaine des droits de l’homme, approuvé par la Résolution N1 447 (IX- O/79) adoptée par l'Assemblée générale de l'OEA à sa neuvième session ordinaire tenue a La Paz, Bolivie en octobre 1979 et art. 23 et 24 du Règlement de la Commission interaméricaine des droits de l’homme, adopté par la Commission lors de sa 109e session extraordinaire, tenue du 4 au 8 décembre 2000 et modifié par la suite à quelques reprises. Voir généralement : Arbour, supra note 67, aux p. 460 et ss. 67 Convention américaine relative aux droits de l’homme, 22 novembre 1969, 1144 RTNU 310 (entrée en vigueur 18 juillet 1978. En septembre 2011, elle lie 23 États, à l’exception notable du Canada et des États-Unis. 68 Article 11. Le droit à un environnement salubre 1. Chacun a le droit de vivre dans un environnement salubre et de bénéficier des équipements collectifs essentiels. 2. Les États parties encourageront la protection, la préservation et l’amélioration de l’environnement. 69 Le droit des travailleurs d’organiser des syndicats (Liberté syndicale). 70 Le droit à l’éducation. 71 Protocole additionnel à la Convention américaine relative aux droits de l’homme, 17 novembre 1988, OAS Treaty Series 69 (entrée en vigueur : 16 novembre 1999), à l’article 19 (6). Sophie Lavallée 14 terres ancestrales, autorisé l’exploitation des ressources naturelles, notamment les richesses du sous-sol de leur territoire, et permis à de nouveaux venus de pénétrer massivement en territoire autochtone et d’y propager des maladies, et qu’il n’avait pas mis à leur disposition les soins médicaux nécessaires.72 La Cour a statué qu’il y avait infraction au droit à la vie, à la liberté, à la sécurité personnelle, à la résidence, au déplacement et à la préservation de la santé et du bien- être garantis par la Déclaration américaine des droits et devoirs de l’homme. De plus, en 2005, la canadienne Sheila Watt-Cloutier et l’ONG EarthJustice ont soumis une pétition à la Commission interaméricaine des droits de l’homme, invoquant que le refus des États-Unis de ratifier le Protocole de Kyoto portait atteinte au mode de vie des Inuits et contrevenait à différents instruments internationaux et instruments constitutifs du Système interaméricain des droits de l’homme, dont l’article XIII de la Déclaration américaine des droits et devoirs de l’homme qui proclame que « Toute personne a le droit de prendre part à la vie cultu- relle de la communauté, de jouir des arts et de bénéficier des résultats du progrès intellectuel et notamment des découvertes scientifiques » et l’article XI de la Déclaration américaine qui reconnait le droit à la santé. La Commission leur a répondu, sur le fondement de l’article 26 de son Règlement de procédure73, qu’il lui était impossible d’examiner la pétition puisque les informations qu’elle contenait ne lui permettaient pas de déterminer si les faits allégués pouvaient constituer une violation des droits garantis par la Déclaration américaine des droits et devoirs de l’homme. En 2007, Mme Watt-Cloutier et EarthJustice ont demandé à la Commission une « audience » pour faire cette démonstration au moyen de témoignages. La Commission a accepté d’entendre ces témoignages, qui ont eu lieu le 1er mars 2007. Depuis cette date, elle n’a donné suite d’aucune façon à cette procédure. La Convention européenne de sauvegarde des droits de l’homme, adoptée dans les années 1950, ne reconnaît évidemment pas de droit à l’environnement et ses protocoles, adoptés par la suite, n’en prévoient pas non plus. Statuant qu’elle était incompétente ratione materiae dans certaines affaires74 où les requérants invoquaient une violation du droit à la vie garantit à l’article 2, dans un contexte de protection de l’environnement, la Cour de Strasbourg a tout de même contribué indirectement à affermir la reconnaissance d’un droit à l’environnement dans les États membres, en se penchant sur des allégations d’atteintes au droit à la vie privée dans des affaires dont le nombre, important, fait en sorte qu’il est impossible de les résumer ici mais dont certaines ont fait l’objet d’une interprétation progressiste de la Cour.75 Considérant l’ensemble ces déclarations de principes internationales, conventions internationales, régionales et de la jurisprudence reconnaissant le droit à l’environnement, on peut affirmer que depuis la fin des années 1960, on assiste à une évolution, lente mais certaine, du droit à l’environnement. Cette évolution a été saluée par certains juristes, mais a été décriée par d’autres. En effet, le recours aux droits de l’homme, pour donner un nouveau souffle au droit de l’environnement et permettre à ce volet du développement durable d’être équilibré dans un meilleur rapport de force avec le développement économique, est l’objet d’un débat de forme et de fond récurrent, depuis une vingtaine d’années déjà. Ce sont essentiellement des raisons politiques et juridiques qui ont fait dire à certains qu’un conflit potentiel existait entre les générations des droits économiques, sociaux et culturels et les droits de troisième génération, dits de solidarité.76 Quand on y regarde toutefois de plus près, on se rend bien compte que les droits de deuxième et de troisième génération font partie d’un «processus régulateur élargi» qui «ne repose pas vraiment 72 Décision 7615 (Brésil), INTER-AM. C.H.R., 1985, March 5, 1985, 1984-1985 Annual Report 24, OEA/Ser.L/V/11.6, Doc. 10, rev. 1 (1985), art, 24, 31. 73 Règlement de procédure de la Commission interaméricaine des droits de l’homme, en ligne : Commissioninteraméricaine des Droits de l’Homme : http://www.cidh.oas.org/Basicos/French/u.reglement.cidh.htm. 74 Dr S c/RFA, 5 août 1960 (essais nucléaires); X et Y c/RFA, 13 mai 1976 (usage d’un marais pour des fins militaires); X c/RU, 12 juillet 1978 (dommages dûs à une campagne de vaccination). 75 Jurisprudence de la CEDH : De Sadeleer, Prieur, Francesco, Bosselmann. 76 L. Lamarche, Perspectives occidentales du droit international des droits économiques de la personne, Collection de droit international, Bruxelles, Éditions Bruylant, 1995, à la p. 144. Un Développement Durable sans Justice « Ecologique » ? 15 sur la détermination de l’absence ou du degré de juridicité de quelque droit»77, ce qui permet de conclure, comme Lamarche, qu’il est vain de «s’acharner sur les délimitations des frontières générationnelles des droits. Tous les droits évoluent dans un contexte global qui détermine leur juridicité. C’est le propre des droits- tension auxquels réfère Atias.» 78 En effet, dans la mesure où l’on sait garder à l’esprit la distinction fondamentale entre le droit tel qu’il est (lex lata) et le droit tel qu’il devrait idéalement être (de lege ferenda), on conviendra qu’il n’y a pas d’objection décisive à parler de droit de la troisième génération si l’on entend par cette catégorie des droits en formation ou en devenir. Le secret des droits de l’homme, comme l’affirmait le président français François Mitterand, « c’est la démocratie ».79 N’est-il pas vrai que la promotion et la protection d’une génération de droits de l’homme ne doivent jamais dispenser un État de travailler à la promotion et à la protection des autres? Tous les droits de l’homme sont en effet interdépendants et indivisibles80 et la doctrine moderne des internationalistes distingue non pas seulement deux temps ou deux générations dans l’évolution des droits de l’homme, mais bien trois, mettant ainsi en lumière le fait que le catalogue des droits de l’homme est évolutif, qu’il n’est jamais déterminé une fois pour toute, et qu’il reste toujours ouvert pour répondre aux besoins contemporains, notamment en matière de protection environnementale. La nécessité de reconnaître un droit à l’environnement pour faire contrepoids au pouvoir économique81 a d’ailleurs été ciblée dans toutes les propositions qui ont été formulées relativement à l’identité des droits de troisième génération.82 Cela n’est pas étonnant puisque le droit à l’environnement contiendrait tous les éléments d’un tel droit, dans ses dimensions individuelles et collectives. Il est, en effet, opposable à l’État mais il a aussi besoin de ce dernier pour en assurer la réalisation.83 Le débat sur l’opportunité d’un droit à l’environnement porte sur plusieurs autres questions que nous regroupons comme suit : Peut-on en assurer la mise en œuvre en recourant simplement aux droits de l’homme existants tels que le droit à la vie ou à la vie privée ou le droit à la santé ou encore en tablant sur les droits procéduraux dont disposent chaque individu pour assurer la protection de l’environnement ? En bref, ces questions tournent autour d’une question fondamentale : A-t-on besoin d’un nouveau droit de l’homme pour assurer le droit à l’environnement? Pourquoi reconnaître un droit de l’homme à l’environnement? Comment définir l’environnement et encore plus un nouveau droit à l’environnement et quel doit en être le contenu? Ainsi, ce que l'on peut appeler le débat sur le droit de l’homme à l’environnement est en réalité un débat sur de nombreux aspects concernant un éventuel droit à un environnement sain, à savoir sur l'opportunité même d'un tel droit, son éventuelle existence telle qu'elle ressort des instruments et actes internationaux, les possibilités d'assurer ce droit sans qu'il soit formulé de façon expresse mais en passant plutôt par d'autres droits de l’homme bien établis comme le droit à la vie ou à la santé ou encore, en passant par des droits procéduraux. 77 Ibid. 78 Ibid aux pp. 145-146; C. Atias, «Quelle positivité? Quelle notion de droit?», (1982) 27 Archives de philosophie du droit, 209, à la p. 233. 79 Cité dans Rousseau, supra note 48, à la p. 136. 80 Le droit onusien pose, en effet, le principe de l’indivisibilité et de l’interdépendance des droits de l’homme entre eux. Ce principe a été reconnu par la Proclamation de Téhéran de 1968, qui considère tous les droits de l’homme égaux en valeur et en importance. Vasak rappelle que, lors de cette proclamation, « sur le terrain, l’indivisibilité des droits de l’homme était fort théorique et ressemblait davantage à une pétition de principe qu’à la constatation de la réalité quotidienne. », Karel Vasak, « Les différentes catégories des droits de l’homme », dans André Lapeyre, François De Tinguy, Karel Vasak, dir, Les dimensions universelles des droits de l’homme, Bruxelles, Bruylant, 1990, à la p. 297. 81 Déclaration de Rio, supra note 3, principe 4 : « Pour parvenir à un développement durable, la protection de l'environnement doit faire partie intégrante du processus de développement et ne peut être considérée isolément ». 82 A. Rosas, « So-called rights of the thirsd generation », dans A. Eide, C. Krause, A. Rosas, dir, Economic, Social and Cultural rights: A Textbook, Dordrecht, Martinius Nijhoff, 1995, aux pp. 257-269; Vasak, supra note 84. 83 Vasak, supra note 84. Sophie Lavallée 16 Le débat sur l’anthropocentrisme du droit à l’environnement et les possibilités de reformuler la justice à la lumière du principe de durabilité Dans le contexte de l'opportunité de reconnaître un droit à l’environnement comme droit de l’homme, le problème de l'anthropocentrisme des droits de l'homme et la conformité de l’approche des droits de l'homme avec les besoins de la préservation de l'environnement, est omniprésent, notamment quant à la définition d’un tel droit. Plusieurs auteurs sont préoccupés par le caractère anthropocentrique inhérent des droits de l’homme. Ils croient que leur existence même renforce l’idée que l'environnement n'existe que pour le bénéficie de l’être humain et n’a aucune valeur intrinsèque. Ils sont même d’avis que les droits de l’homme aboutissent à la création d'une hiérarchie, selon laquelle on donne à l'humanité une position de supériorité et qu’on distingue son importance des autres membres de la communauté naturelle.84 Plus spécifiquement, les objectifs et les normes des droits de l’homme sont centrés sur l'homme, la survie de l’humanité et l'utilisation continue des ressources alors que ce sont ces objectifs, utilisés en droit de l’environnement, qui ont conduit à la dégradation de l’environnement. Deuxièmement, cette approche anthropocentrique prive l'environnement d'une protection directe. Il faut une atteinte bien importante à l’environnement avant que celle-ci ne vienne affecter le droit à la santé, par exemple. En ce sens, la dégradation de l'environnement en elle- même n'est pas une cause suffisante pour se plaindre juridiquement parlant, cette dégradation doit être liée au bien-être humain et il n'y a pas non plus de reconnaissance que la nature est, en fait, la victime de la dégradation. Enfin, la protection de l'environnement dépend toujours du fait qu’un être humain se voit affecté dans ses droits et qu’il emprunte la voie des mécanismes procéduraux reconnus par le droit pour condamner cette violation aux droits de l’homme et le dédommagement lui reviendra. Il ne sera pas nécessairement utilisé au bénéfice de l’environnement. Traditionnellement, les relations juridiques - y compris celles que l’on qualifie de questions liées à la justice - sont perçues uniquement comme des relations entre des personnes. Selon cette conception de la justice, les gens n'ont aucune obligation légale envers la nature, et la nature n'a pas de droits envers les personnes. En effet, de tout temps, le droit a eu pour objet principal de régir les relations entre les hommes, et non pas entre l’homme et la nature. Son essence même est donc anthropocentrique puisque, même lorsqu’il s’agit de réglementer la chasse, la pêche ou l’exploitation forestière, la finalité de la norme juridique repose avant tout sur la défense des intérêts des chasseurs, pêcheurs ou exploitants contre des abus éventuels. Il n’est alors nullement question d’assurer d’abord la protection des espèces sauvages et encore moins les relations écologiques qui n’ont aucune valeur marchande. Le droit n’appréhende d’ailleurs que les éléments corporels comme l’eau, l’air, le sol, les animaux et les plantes auxquels il confère des qualifications purement anthropocentriques fondées sur les concepts d’appropriation et de souveraineté : res communes, res propriae, res nullius. L’être humain se retrouve donc, a priori, libre de détruire et d’altérer ce qu’il possède et, a fortiori, ce qui n’appartient à personne. Ce droit de détruire n’a, en définitive, qu’une limite : la protection d’autres intérêts humains. Or, la destruction des espèces et des écosystèmes qui constituent la biodiversité n’affecte pas toujours un intérêt humain protégé par le droit.85 Le dommage est d’abord causé à la nature et, de façon indirecte et difficilement évaluable en argent, à l’homme. L’État peut toujours édicter des lois de protection de la nature, mais si elles se trouveront détournées de leur fonction première qui est, par essence, la protection d’intérêts humains, le problème de la légitimité de leur usage se posera tôt ou tard. Cette problématique de la légitimité est à l’origine de toutes les critiques qu’a suscitée l’idée de reconnaître le droit à l’environnement comme un droit de la troisième génération des droits de l’homme. En effet, une vue d’ensemble des théories éthiques du droit de l’environnement révèle 84 P. W. Birnie et A. E. Boyle, International Law and the Environnent, Oxford, Oxford University Press, 2002, aux p. 257-258. 85M-A Sanson-Hermitte et B. Edelman, L’homme, la nature et le droit, Paris, C. Bourgois, 1988; M. Rémond- Gouilloud, Du droit de détruire: essai sur le droit de l’environnement (les voies du droit), Paris, Presses Universitaires de France, 1989. Un Développement Durable sans Justice « Ecologique » ? 17 un discours qui est traversé par deux courants qui s’opposent : celui de l’anthropocentrisme qui conçoit la nature comme objet, et celui de la deep ecology ou écologie profonde qui conçoit au contraire la nature en tant que sujet. Le courant anthropocentrique a pour origine la pensée de Descartes pour qui l’homme doit devenir maître et possesseur de la nature et qui a donné forme aux sociétés modernes occidentales pendant le Siècle des lumières, avec dans son sillage la Révolution française et Jean-Jacques Rousseau pour qui la nature doit être maîtrisée, cultivée, humanisée. Le fait que l’homme soit la seule entité à disposer de la conscience le rend souverain et fait de lui la mesure de toutes choses. Un tel humanisme fait en sorte que «la nature n’a de valeur éthique que d’un point de vue instrumental».86 Dans cette conception anthropocentrique, la seule raison valable de restreindre l’action humaine existe lorsque le dommage à la nature menace l’homme lui-même.87 Il n’est pas rare que cette conception soit dénoncée comme étant à l’origine des nombreux problèmes environnementaux qui nous assaillent et il n’est pas étonnant qu’elle soit à l’origine du développement de son antithèse, la deep ecology, telle que désignée par les anglo- saxons. Selon l’écologie profonde, qui oppose l’écocentrisme à l’anthropocentrisme de l’écologie superficielle (shallow ecology), l’homme ne se situe pas au sommet de la hiérarchie du vivant, mais s’inscrit au contraire dans le tout qu’est l’écosphère. Cette deep ecology, selon l’expression mise de l’avant, en 1973, par le Norvégien Arne Naess88, est en somme un courant environnementaliste qui sacralise la nature et remet en cause la position centrale que l’homme y occupe. La fin poursuivie par ce courant conteste l’anthropocentrisme : la nature n’est plus la servante de l’homme mais c’est plutôt lui qui doit s’y soumettre. S’appuyant sur la notion d’égalité biocentrique, l’écologie profonde considère que l’égalitarisme moral entre l’homme et l’animal mène à la conclusion que toutes les entités constitutives de la nature ont un égal droit à l’existence. Toutes ces entités constituent précisément ce que nous désignons par le terme «nature» et aucune d’elles ne peut s’en faire maître. Exprimant cette conception de la nature, le chimiste James Lovelock émet l’hypothèse Gaϊa selon laquelle la nature est une entité autonome douée d’une volonté immanente et qui ne peut pas être soumise au commandement de l’espèce humaine.89 Fervent adepte de la philosophie environnementale, Edgar Morin estime quant à lui que «nous pouvons affirmer que dorénavant nous ne pouvons concevoir qu’une nature à double pilotage : la nature doit être pilotée par l’homme, mais celui-ci doit être piloté par la nature.»90 Cette égalité ontologique ne permet pas à l’être humain, partie constitutive de la nature, d’en soumettre les autres entités à sa volonté destructrice. En définitive, «la destruction écologique est la destruction philosophique de la nature par l’anthropocentrisme naturel»91, ce qui rejoint ceux pour qui l’homme fait partie intégrante de l’écosystème.92 De la deep ecology découlent trois conséquences importantes. La première veut que le respect pour l’environnement se concrétise par une planification des naissances humaines qui limite fortement la population mondiale93 rejoignant ainsi les conceptions des malthusiens94 et de 86 S. Gutwirth, « Trente ans de théorie du droit de l’environnement », (2001) 26 Environnement et société 1, aux pp. 5-8 87 Ibid à la p. 8. 88 A. Naess, « The Shallow and the deep. Long-Ranged Ecology Movement », (1973) 16 Inquiry 95. Sur le movement de l’écologie profonde, voir également A. Naess, « A defence of the Deep Ecology Movement », (1984) 6 Environmental Ethics 265; et J. Hofbeck, « La "deep ecology" : un essai d’évaluation éthique», dans J. A. Prades, J-G Vaillancourt et R. Tessier, dir, Environnement et développement : questions éthiques et problèmes socio-politiques, Montréal, Fides, 1991, aux p. 165-181 89 J. E. Lovelock, Les âges de Gaϊa, Paris, O. Jacob, 1990. 90 E. Morin, Introduction à la pensée complexe, Paris, ESF Editeur, 1974, p.77. 91 P. Perrin, Deep Ecology et Environmental philosophy : du sophisme au contrôle autoritaire de la population, Institut économique Molinari, 21 septembre 2004. 92 L’Assemblée Générale des Nations Unies affirme que « l’humanité fait partie de la nature et la vie dépend du fonctionnement ininterrompu des systèmes naturels qui sont la source d’énergie et de matières nutritives», Charte mondiale de la nature, supra note 18, préambule. 93 B. Devall et G. Session, Deep Ecology, Layton, Gibbs Smith, 1985, à la p. 166. 94 Dans son Essai sur le principe de population publié en 1789, l’économiste britannique Thomas Malthus soutenait l’idée selon laquelle la population mondiale augmentait plus rapidement que la capacité de production agricole et prévoyait que ce déséquilibre conduirait l’humanité vers une crise, les ressources alimentaires ne suffisant plus à répondre à la demande. Bien que cette crise ne se soit pas concrétisée, le terme malthusianisme est encore utilisé aujourd’hui pour exprimer les craintes Sophie Lavallée 18 Lovelock pour qui «s’il n’y avait que 500 millions d’humains, pratiquement rien de ce que nous faisons actuellement à l’environnement ne perturberait Gaϊa »95 La seconde plaide en faveur de la reconnaissance de droits aux arbres et aux ressources naturelles en général et considère l’environnement comme un tout («environment as a whole»).96 Selon Christopher D. Stone, le fait de reconnaître de tels droits aux éléments de la nature n’a rien de révolutionnaire si on considère qu’à une certaine époque, les esclaves et les femmes n’en avaient pas non plus et qu’il était alors impensable d’imaginer qu’ils en auraient. La proposition de Stone a d’ailleurs été suivie par les trois juges dissidents sur les sept juges de la Cour suprême des États-Unis dans Sierra Club c. Morton.97 Enfin, la troisième conséquence de la deep ecology est l’opposition marquée aux droits de l’homme pour garantir la protection de l’environnement. Plusieurs se demandent effectivement si les droits de l’homme offrent bien un cadre adéquat pour y parvenir. Pour eux, les droits de l’homme protègent les intérêts de l’être humain et instrumentalisent ainsi l’environnement. La nature est un objet de l’homme qui peut revendiquer sa protection à l’égard de la communauté internationale, de l’État et des autres citoyens. Pour eux, «si la construction d’un droit à l’environnement apporte quelque chose de bon à l’environnement, c’est purement accidentel et pas parce qu’on donne à l’environnement quelque valeur intrinsèque.»98 Si l’affirmation d’un droit à l’environnement s’accompagne de mesures étatiques qui permettent à l’individu d’imposer des limites aux atteintes portées à l’environnement, ces limites peuvent répondre aux aspirations humaines de vivre dans un environnement de qualité. D’ailleurs, cette possibilité, pour l’individu, de faire valoir ses attentes en matière de protection de l’environnement, rejoint les concepts de développement durable (tel que conceptualisé par le Rapport Brundtland et la Déclaration de Rio), de responsabilité envers les générations futures et de l’intérêt commun de l’humanité, concepts clés du droit de l’environnement contemporain. Les arguments des tenants de la deep ecology ont certes trouvé un certain succès auprès de nombreux groupes de pression verts et ont trouvé écho dans les préoccupations d’une partie de la communauté scientifique pour qui notre modèle de développement économique est accompagné d’une empreinte écologique excessive, rejoignant ainsi les enseignements d’Halte à la croissance de 1972 du Club de Rome dont la modélisation a mis en relation le caractère limité des ressources naturelles et notre modèle de croissance économique illimitée. L’histoire nous enseigne toutefois que le droit international de l’environnement s’est plutôt construit autour de concepts tels que l’intra- et l’intergénérationalité, de l’environnement comme patrimoine commun de l’humanité dans certains textes99 et plus fortement encore, du développement durable, défini par la Commission Brundtland (1987) comme « un développement qui répond aux besoins du présent sans compromettre la capacité des générations futures de répondre aux leurs ».100 Toutefois, nous avons oublié ainsi que par le Programme des Nations Unies pour l’Environnement (1991) qui l’exprime comme « le fait d'améliorer les conditions d'existence des communautés, tout en restant dans les limites de la capacité de support des écosystèmes ».101 En effet, depuis le Sommet de la Terre de Rio, il existe un large consensus international sur la nécessité de promouvoir un développement durable qui permette l’intégration des préoccupations environnementales dans les processus productifs et dans l’ensemble des comportements individuels.102 Ainsi conceptualisé, le développement durable est un concept qui (Contd.) relatives à l’équilibre entre la population et les ressources naturelles. Selon Malthus, l’humanité doit composer avec la capacité de charge de son environnement naturel et prendre les décisions nécessaires pour en assurer la pérennité. 95 Lovelock, supra note 93 p. 214. 96 Stone, supra note 12; C. D. Stone, Should Trees Have Standing?: And Other Essays on Law, Morals & the Environment : 25th Anniversary ed., Dobbs Ferry, Oceana, 1996. 97 Sierra Club v. Morton, 45 U.S. 727 (1972). Décision rendue le 19 avril 1972. 98 Gutwirth, supra note 90, à la p. 8. 99 L’Accord du 5 décembre 1979 proclame la «lune et les autres corps célestes». Patrimoine commun de l’humanité. Accord régissant les activités des États sur les Lune et les autres corps célestes, 5 décembre 1979, 1363 RTNU 3; La Convention des Nations unies sur le droit de la mer, 10 décembre 1982, 1834 RTNU 3 (entrée en vigueur : 16 novembre 1994) en fait de même pour les ressources minérales des grands fonds marins. 100 Rapport Brundtland, supra note 16.. 101 IUCN/UNEP/WWF, Caring for the Earth: a strategy for sustainable living, Gland, IUCN/UNEP/WWF, 1991. 102 Parmi les principes qui sont énoncés dans la Déclaration de Rio, le principe 8 prévoit que pour « parvenir à un développement durable et à une meilleure qualité de vie pour tous les peuples, les États devraient réduire et éliminer Un Développement Durable sans Justice « Ecologique » ? 19 permet de formuler des politiques publiques103 de développement économique qui considèrent, sur le même pied, l’équité sociale et la protection de l’environnement, s’écartant ainsi de la conception radicale de la deep ecology.104 Les écologistes sont d’avis que plutôt que d'ajouter simplement des devoirs aux droits de l’homme, les réalités écologiques nous invitent à redéfinir les droits eux-mêmes pour garantir des droits à la nature. Dans la mesure où ses tenants n’ont pas connu le succès escompté, l’écologie profonde, qui propose une critique radicale de la Déclaration universelle des droits de l’homme puisqu’elle fait de l’homme la source et le destinataire de toutes les valeurs morales, politiques et écologiques, a été affaiblie d’autant et on peut penser que ce courant n’a pas, aujourd’hui, la force idéologique pour s’opposer efficacement à la reconnaissance d’un droit de l’homme à l’environnement. La deep ecology nous conduit toutefois à remettre en question notre conception du «développement durable» et à nous interroger sur l’adéquation des instruments juridiques existants, et de ceux qui seront adoptés, pour mettre en œuvre le principe de durabilité. En effet, le principe de durabilité doit modifier notre conception de la justice. Les libéraux démocrates comme Rawls et ceux qui l’ont suivi ont tenté d'étendre une théorie libérale de la justice afin d'y inclure les préoccupations environnementales. Ils sont d’avis que l'écologisme et le libéralisme démocratique sont compatibles. La préoccupation centrale des libéraux est de concilier le libéralisme avec l'individu, l’individualisme, la neutralité de l'État et un engagement en faveur de bonnes pratiques environnementales. La quadrature du cercle, en somme ! Leur objectif est de considérer les questions environnementales à travers le paradigme du libéralisme, plutôt que de le remplacer. Cela résulte en un «verdissement» éventuel au sein des politiques publiques, qui dépend de majorités démocratiques, plutôt que d'un engagement fort de l'État en faveur de l'écologisme. Ils ne sont pas en faveur de la reconnaissance d’un droit à l’environnement et encore moins en faveur de la reconnaissance de droits à la nature. Selon les tenants de la reconnaissance d’un droit de l’homme à l’environnement, la nature n’a peut-être pas de droits, mais les hommes ont des devoirs d’un niveau élevé envers elle et, en dernière instance, envers eux-mêmes. Et certains vont même jusqu’à défendre l’idée, comme Dinah Shelton et Alexandre Kiss l’ont fait, que ce n’est pas parce que le droit de l’environnement est anthropocentrique en soi que l’environnement ne peut pas être protégé et un droit de l’homme à l’environnement, formulé. Selon leur position, il est même possible de formuler ce droit de façon à protéger ce qu’on appelle le « dommage écologique », accompagné d’un élargissement de l’intérêt pour agir aux organismes environnementaux non gouvernementaux, assorti de moyens financiers comblés par des fonds environnementaux financés en partie par les dédommagements obtenus par des recours et la reconnaissance de droits procéduraux pour que l’individu puisse faire valoir ce droit de façon effective, en justice.»105 Bien que ces modalités du droit à l’environnement n’aillent pas, pour le moment, aussi loin que les théories de ceux pour qui, comme Stone, il (Contd.) les modes de production et de consommation non viables ». Par ailleurs, le chapitre 4 de l’Agenda 21 précise que des progrès peuvent être faits dans ce domaine en renforçant les tendances et orientations positives dans le cadre d'un processus visant à modifier sensiblement les modes de consommation des entreprises industrielles, des gouvernements, des ménages et des particuliers, afin d'utiliser les ressources de la manière la plus rationnelle et de réduire au minimum le gaspillage, Déclaration de Rio, supra note 3. 103 Vaillancourt, supra note 22, p. 24-27. 104 « Dans sa courte carrière comprenant à peine quelques décennies, le mouvement écologiste semble prendre une direction fondamentale qui s’écarte de plus en plus définitivement de l’écologisme profond. Gagné de manière très générale aux thèses qui ont été popularisées par la Commission des Nations Unies pour l’environnement et le développement, le mouvement écologiste s’oriente vers la recherche de la réconciliation entre les exigences du développement économique et celles de la sauvegarde de l’environnement», J. A. Prades, Éthique de l'environnement et du développement, Paris, Presses Universitaires de France, 1995. 105 A. Kiss et D. Shelton, International Environmental Law, 3e édition, New York, Transnational Publishers inc., 2004, à la p. 665 : « The third possibility is to formulate a new human right to an environment is not defined in purely anthropocentric terms, an environment that is safe not only for humans, but one that is ecologically-balanced and sustainable in the long-term ». Sophie Lavallée 20 faudrait reconnaître des droits aux arbres106, les dispositions qui les consacrent et l’interprétation progressiste que pourrait en faire les tribunaux pourrait tout de même contribuer à une meilleure protection de la capacité de charge de nos écosystèmes, comme le principe de durabilité véhiculé dans la Charte mondiale de la nature de 1982 le commande ? Conclusion Concept systémique, le développement durable, défini en 1987 par la Commission mondiale sur l’environnement et le développement (Rapport Brundtland, 1987) a fait l'objet d'un consensus à l'échelle internationale qui a pris la forme des principes de la Déclaration de Rio sur l'environnement et le développement, en 1992. Signe manifeste de l’importance de ce concept en droit international, le préambule de l’Accord de Marrakech créant l’Organisation mondiale du commerce (OMC) réfère au développement durable. Le développement durable est un concept qui est certes rassembleur, en dépit ou en raison du flou conceptuel qui le caractérise. Une panoplie de courants conceptuels peuvent en effet être identifiés, tant dans les traités et la soft law (« source » du droit qui joue un rôle primordial dans la réception juridique du concept) que dans les travaux doctrinaux. Nous avons expliqué qu’il est toutefois possible de distinguer deux courants majeurs, dont l’un correspond à une conception anthropocentrique (Rapport Brundtland, 1987 ; Déclaration de Rio, 1992), appelé aussi durabilité faible (Weak Sustainability), tandis que l’autre correspond à une conception écocentrique (Charte mondiale de la nature de 1982), appelé aussi durabilité forte (Strong Sustainability). Selon la conception faible ou anthropocentrique, le développement durable permet de concilier les trois intérêts - économiques, écologiques et sociaux - perçus comme antinomiques. Cette conception tolère, dans des proportions variables selon les sous-courants, des développements considérés comme non durables, chacun des trois intérêts étant jugés d’égale valeur pour l’homme. Selon la conception forte ou écocentrique, le développement n’est durable que si, dans la poursuite des intérêts sociaux par le recours aux moyens économiques, les limites écologiques sont respectées. Selon cette conception, le respect des limites écologiques est central pour le maintien de notre cadre de vie. De plus, l’économie n’étant pas une fin en soi, elle doit servir le bien-être de tous les humains. S’il est vrai que le modèle anthropocentrique du développement durable, tel qu’il a été popularisé par la Commission mondiale sur l’environnement et le développement, en 1987, dans Our Common Future (Rapport Brundtland), ne hiérarchise pas les trois volets de ce concept – économie, environnement, social - et que les instruments juridiques qui permettent de l’opérationnaliser penchent conséquemment trop souvent en faveur des intérêts économiques, nous ne pensons pas qu’il faille pour autant mettre de côté le concept lui-même mais plutôt qu’il faille impérativement travailler à construire un droit «du développement durable» qui mette de l’avant la conception forte du développement durable en redonnant au principe de durabilité la place centrale qui lui revient. La durabilité n’est-elle pas «l'une des idées les plus anciennes de l'héritage humain ?»107 La formulation d’un droit fondamental «à la durabilité» plus éthique et plus collectif, garanti non seulement à titre individuel mais pour des peuples entiers, devrait être considéré, à l’exemple de la Charte africaine des droits de l’homme et des peuples et en s’inspirant pour ce faire de la Charte de la Terre de 2000. D’une part, si seule la dimension individuelle des droits de la personne peut être protégée, cela peut être un facteur de régression sociale puisque dans cette perspective, le pouvoir «judiciaire» ou un comité des droits de l’homme peut empêcher l’État de violer le droit à la vie, à la liberté et à la sécurité mais il ne peut pas améliorer le sort des démunis ou de l’environnement. En effet, les droits individuels de la personne ne peuvent 106 Stone, supra note 12. 107 Opinion séparée du juge Christopher Weeramantry dans l’Affaire Gabcikovo-Nagymaros, supra note 13. Un Développement Durable sans Justice « Ecologique » ? 21 qu’empêcher le pire mais ne sont gage d’aucun progrès social : «S’ils sont parfois des instruments de libération, les droits individuels de la personne peuvent aussi, dans d’autres circonstances, être des instruments de domination dont savent se servir habilement ceux qui sont déjà en position de force afin de favoriser la régression sociale. L’apologie des Chartes est en réalité un discours à double signification. D’un côté, elle veut prévenir l’intolérable pour la personne, comme la torture, de l’autre elle est l’alibi en or d’un libéralisme économique qui se satisfait pleinement de l’inaction gouvernementale. »108 D’autre part, la reconnaissance d’un droit à la durabilité, fondé sur le dommage écologique et la reconnaissance de la valeur de la «communauté de vie» sur terre, comme le fait la Charte de la Terre de 2000, pourrait permettre de faire contrepoids aux droits économiques tels que le droit à la propriété, et ainsi devenir un facteur de progrès pour le monde vivant humain et non humain. Sa reconnaissance nécessiterait toutefois une redéfinition des rapports entre l’individu, la société et l’État, et une redéfinition de nos rapports avec la nature qui met directement en cause le libéralisme individualiste de nos sociétés. Il n’est d’ailleurs pas surprenant que les pays occidentaux, qui ont beaucoup de difficulté à souscrire aux idéaux véhiculés par les droits économiques et sociaux de la deuxième génération des droits de l’homme, soient plutôt silencieux sur la garantie d’un droit «à l’environnement»,même anthropocentrique. Il faut bien reconnaître que le droit à l’environnement s’inscrit dans la logique de la démocratie participative, condition d’opérationnalisation du développement durable109 et que si la majorité des États sont d’accord avec le concept affirmé à Rio de Janeiro en 1992110, il y a toutefois encore beaucoup de chemin à parcourir avant que des politiques économiques conséquentes ne soient élaborées. Cela ne doit pas surprendre puisque le développement durable implique pour le Nord l’élimination des moyens de production et de consommation non durables et, pour le Sud, la promotion de politiques démographiques appropriées. Il semble qu’il soit maintenant temps de regarder le chemin parcouru, de réfléchir aux actions à prendre et de prendre conscience que, plutôt que de garantir un droit de l’homme à l’environnement, anthropocentrique, il est nécessaire de garantir un droit fondamental à la durabilité pour assurer le bien-être de toutes les espèces vivantes, humaines ou non-humaines. Ce droit, finalisé, tendra enfin à une transformation des modèles qui gouvernent nos sociétés. Une telle avancée, transversale, pourrait embrasser les différentes branches du droit international, les droits régionaux et nationaux. C’est à cette condition seulement que le concept du développement durable pourrait être un concept global et intégrateur car le développement ne peut plus être poursuivi indépendamment de la préservation de la base des ressources naturelles, au risque de se retrouver bientôt dans un monde sans être humain ou sans ressources naturelles. 108 H. Brun et G. Tremblay, Droit constitutionnel, 4e édition, Cowansville, Yvon Blais, 2002, aux p.880-881. 109 Commission des droits de l’homme, « Promotion et protection des droits de l’homme, science et environnement », dans Les droits de l’homme et l’environnement en tant qu’éléments du développement durable, Rapport du secrétaire général, ECOSOC, E/CN.4/2004/87, 6 février 2004. Voir généralement Michel Prieur, Droit de l’homme à l’environnement et développement durable, 2005, en ligne : francophonie-durable.org http://www.francophonie-durable.org/documents/colloque-ouaga-a5-prieur.pdf. 110 Déclaration de Rio, supra note 3, Principe 4 : « Pour parvenir à un développement durable, la protection de l’environnement doit faire partie intégrante du processus de développement et ne peut être considérée isolément ». 
work_nlxs6bn4rbfatoxoiyjm52kdqa	----	1 This is the Accepted Manuscript version of an article published in Political Studies. For the Final Published PDF, please see: Hjorthen, F.D., Humanitarian Intervention and Burden-Sharing Justice, Political Studies (Online first, 1 November 2019) pp. xx-xx. Copyright © 2019 SAGE Journals. DOI: 10.1177/0032321719882607. Humanitarian Intervention and Burden-Sharing Justice Abstract This paper examines the case for distributive fairness among states in the context of humanitarian intervention. I start by arguing that distributive fairness among interveners is important for both intrinsic and instrumental reasons. I then discuss the worry that due to the nature of humanitarian intervention, fair burden sharing is difficult to achieve without compromising the operational effectiveness of interventions. I examine three responses that whilst they reduce the severity of this objection do not fully override it. Finally, in light of the objection I explore options for practical changes and institutional reform that could contribute to reconciling fair burden sharing with effective intervention. I conclude that fairness and effectiveness can be reconciled in the longer term by fully institutionalising humanitarian intervention and in the short term by distinguishing between the duty to undertake intervention and the duty to pay for it. Keywords: duty to intervene; international justice; humanitarian intervention; responsibility to protect; distributive fairness. 2 [Word count: 10250 + abstract, keywords and acknowledgements] Introduction The debate on military humanitarian intervention has over the past decade-and-a-half been concerned with the notion of a duty to intervene (see e.g. Bagnoli, 2006; Caney, 2005; Fabre, 2012; Pattison, 2010; Tan, 2006; Tesón, 2005).1 Theorists disagree about the scope and grounding of this duty, but it is now widely, if not universally, accepted that there is a duty to intervene to protect people in other countries from egregious violations of their human rights. In international relations, this idea is captured by the Responsibility to Protect (R2P), which was endorsed by all UN member states in 2005.2 Far less attention has been devoted to the more specific – and highly important – question of how the duty to intervene ought to be assigned to particular agents, or what we may call the duty specification question (Pattison, 2010: 2).3 When answering the duty specification question there are at least two important desiderata. On the one hand, the duty should be assigned in a way that ensures that the intervention is effective. On the other hand, the duty should be fairly distributed between duty bearers. These two desiderata are usefully captured by Simon Caney’s distinction between Harm Avoidance Justice and Burden-Sharing Justice. Harm Avoidance Justice ‘takes as its point of departure the imperative to prevent [harm], and works back from this to deduce who should do what. Its focus is primarily on ensuring that the catastrophe is averted (or at least minimised within reason)’. Burden-Sharing Justice, meanwhile, focuses on ‘how the burden 1 I follow James Pattison (2010: 28) in defining humanitarian intervention as ‘Forcible military action by an external agent in the relevant political community with the predominant purpose of preventing, reducing, or halting an ongoing or impending grievous suffering or loss of life.’ 2 The focus of this paper is military humanitarian intervention, and not the Responsibility to Protect as such. Although R2P is relevant to several practical and theoretical aspects of humanitarian intervention, the concept as such is both wider and narrower. For an instructive account of R2P, see (Bellamy, 2006; 2011). For a more critical account, see (Hehir, 2010b). 3 Tan (2006: 96) instead refers to it as the ‘agency condition’. 3 of combating the problem should be shared fairly among the duty-bearers’ (Caney, 2014: 125-126). A harm may be prevented in several different ways, with each yielding a different set (or distribution) of burdens. Caney’s idea is that if we are more focused on achieving the goal effectively, then we are taking a Harm Avoidance Justice perspective. If we are more focused on the distribution being fair, then we are taking a Burden-Sharing Justice perspective. In the emerging literature on the duty specification question it is fair to say that the dominant approach has been one of Harm Avoidance Justice. Little attention has been devoted to distributive fairness among potential interveners.4 For example, James Pattison, in his major work on the duty specification question, devotes less than three pages to the question of fairness and burden sharing (Pattison, 2010: 196-199). Others, such as Caney (2005); Erskine (2014); Fabre (2012); Ralph and Souter (2015); Tan (1995; 2006; 2015) have also touched on the question of how the duties of intervention should be assigned, but they are similar to Pattison in that they pay little attention to distributive fairness among interveners. In this paper, I will argue that the relative neglect of Burden-Sharing Justice is mistaken, and I will start out by exploring the case for fair burden sharing for humanitarian intervention.5 However, a natural worry is that it would be difficult to achieve fair burden sharing without compromising the effective operation of interventions. This is because fair burden sharing seems to require that the duty be shared among a large number of agents, something that would lead to coordination problems and harm operational effectiveness. In the second part of the paper, I discuss this worry, and suggest three ways through which the effectiveness objection can be met. Although these responses reduce the scope and force of the objection, the effectiveness objection retains some bite. This leads to the question of how 4 I will use the terms Burden-Sharing Justice, distributive fairness, and fair burden sharing interchangeably. 5 Though I focus on humanitarian intervention, the arguments I present should in principle also be applicable to other structurally similar cases. 4 the institutions and practices of humanitarian intervention may be reformed to facilitate both effective interventions and fair burden sharing. In the final part of the paper I examine three practical approaches to how fair burden sharing and effective intervention can be reconciled more fully. Specifically, I argue that, in the longer term, we could fully reconcile effectiveness and distributive fairness by institutionalising humanitarian intervention. This is because institutionalisation would make it possible to divide the burden in a way that lends itself more easily to distribution among states. I also argue that, in the short term, we could reconcile effectiveness and distributive fairness by individuating the burdens of intervention more closely. Thus, I defend two main claims: that Burden-Sharing Justice should play an important role for how the duty to intervene is assigned, and that this has important consequences for how we ought to specify the duties of humanitarian intervention in practice. Two clarifications are in order before I proceed. First, it matters for the relevance of the duty specification question whether we think of the duty to intervene as a perfect or imperfect duty; that is, whether it is a duty of justice or a duty of beneficence. Generally speaking, imperfect duties of beneficence are duties that we cannot be compelled to perform and where no performer is specified (Bagnoli, 2006; Gomes, 2011: 1062; Nardin, 2006). To the extent that the duty to intervene is such a duty, the duty specification question will not arise. The duty to intervene would be assigned to everyone in general and not to anyone in particular. In this paper, I will assume that the duty to intervene is a duty of justice; i.e. one that agents can be compelled to perform.6 As Gomes (2011: 1064) puts it: ‘Humanitarian intervention should […] be recognised as a perfect duty that we could be required, even coerced, to perform.’ The duty specification question arises when the duty to protect human rights, which all agents can be compelled to perform, is to be translated into a more specific 6 For further discussion, see (Roff, 2011; Tan, 1995: 32-35). 5 duty to undertake military humanitarian intervention and its task is to answer which desiderata should be applied so that the correct agents are picked out as the appropriate holders of this duty. To what extent distributive fairness should play a role in this process is the topic of this paper. Second, throughout the article I will focus on states as the bearers of the duty to intervene. This follows a trend in the literature but should be seen as a simplifying assumption. A full account would consider other agents as well, and I submit that the duties to protect the rights of others (which ground the duty to intervene) ultimately attach to individuals. However, the assumption made here is reasonable seeing as states are individuals’ main ‘instrument for justice’ when it comes to obligations in the international arena (Buchanan, 1999: 82-87). Hence, I acknowledge the important instrumental role of states whilst also retaining an individualist perspective regarding the ultimate site of rights and responsibilities. The importance of distributive fairness for humanitarian intervention and the effectiveness objection The duty to intervene entails a moral requirement that duty bearers carry the costs of intervention. Being morally required to bear these costs comes with demands for distributive fairness. This is so for both intrinsic and instrumental reasons. The claim that fairness is intrinsically important must ultimately be grounded in more fundamental principles (e.g. equal respect or concern for the legitimate entitlements of the citizens of intervening states). But given that there is a duty to intervene, and that the burden of acting on this duty must be borne by someone, there is a strong prima facie case for distributing it fairly. The instrumental argument for caring about distributive fairness for humanitarian intervention 6 relates to the claim that distributing the burdens of intervention fairly can help alleviate the problem of undersupply of intervention. I return to this argument below. It is important to note that I am here focusing on the burdens of intervention that are borne by the intervening parties. Humanitarian intervention of course also entails burdens for those in the target community or in the wider region. While such burdens are clearly important, they are not the topic of the present discussion.7 The burdens facing intervening states can be sorted into different categories. First, and perhaps all too obvious, humanitarian intervention is burdensome in the sense that some of the intervening soldiers will likely be killed, while others will sustain serious physical or psychological injuries.8 There is no doubt that this is a very serious burden, and it is also the case that such burdens cannot always be adequately compensated. However, someone might argue that it is ontologically suspect to say that this is a burden that befalls the state. In one sense, this seems true. It is the individual soldier (and his or her family and friends) that must bear this burden.9 But there are also costs associated with the loss of life and limb that more readily attach to the collective that comprises the state. First, when soldiers are wounded or killed in action the state will incur a cost in terms of reduced performance of its military forces. Soldiers that are wounded or killed can no longer contribute to the functioning of the military, and there will be costs associated with recruiting and training replacements. Second, the prospect of dead and injured soldiers implies indirect costs for the state in the form of health care and rehabilitation costs. This comes on top of any losses associated with a reduced tax base. Third, there may be downstream costs to the extent that the losses lead to difficulties in terms of future recruitment. This may harm the performance of the state’s 7 For discussion of how harm should be distributed between intervening soldiers, bystanders and the expected beneficiaries of intervention, see (McMahan, 2010; Øverland, 2011; Pattison, 2014). 8 For an overview of the psychological effects on peacekeepers, see (Greenberg et al., 2008; Michel et al., 2003; Sareen et al., 2008; Shigemura and Nomura, 2002). 9 This raises the question of whether anyone has a duty to risk their life in order to ‘save strangers’. Space precludes further discussion of this important issue, but see (Fabre, 2007; Lango, 2001: 186). 7 military forces and reduce its ability to function. Fourth, it may be that the loss of fellow soldiers affects the ability of the remaining troops to continue to function, perhaps because of severe stress and psychological harm. This may in turn affect the ability of the military to function as intended and may be seen as a cost that attaches to the state. Finally, it seems plausible that the loss of soldiers may lead to severe emotional distress for the citizens of the state in general (or at least large segments of it) and that this may lead to reduced welfare as well as reduced performance for various state functions.10 In light of this, the burden that soldiers may be killed or injured should be included in the analysis. Second, and particularly important for democratic states, humanitarian intervention is burdensome in the sense that it might be politically costly. Even though engaging in humanitarian intervention can sometimes contribute to enhancing a state’s international reputation for being a ‘good international citizen’, its own citizens might take a different view (Evans, 2008: 229; Pattison, 2010: 249).11 Engaging in humanitarian intervention might therefore prove costly at the next election. However, this burden seems to attach to the incumbent politicians rather than the state. It therefore seems strained to say that fairness requires that the political burdens be shared fairly among states. Moreover, such electoral costs are only relevant for democratic states and does not apply for interveners with undemocratic forms of rule.12 There is also the risk that humanitarian interveners will face sanction or attack from terrorists and/or other groups who are on friendly terms with the rights-violating regime or group that the intervention is meant to confront (Hjorthen and 10 I acknowledge that this discussion does not fully capture all the forms of harm that are associated with the loss of life and limb for the individuals involved. However, for the purposes of the present discussion it is useful to break down the costs in this way. 11 An illustrative example of the role of public opinion in this context is the reaction that followed the killing of 18 US soldiers in Mogadishu in 1993. For discussion, see (Wheeler, 2000: ch. 6 & 7) 12 For discussion of the importance of an intervener being representative of its citizens’ opinions, see (Pattison, 2010: 131-134). 8 Duus-Otterström, 2016). However, this may be very uncommon and the risk difficult to predict or quantify. For these reasons, political costs will be left out of the analysis. Third, there is of course the economic and material burden. Humanitarian interventions often involve significant deployment of material resources and are typically very expensive. To take an example, the 2011 intervention in Libya is estimated to have cost the UK at least £950 million for air and sea operations alone (Guardian, 2011). In addition to the direct costs of the intervention there are also the indirect costs entailed by having military and other resources in a suitable state of alert. As Loren Thompson puts it in Forbes Magazine: ‘[…] what looks like an inexpensive military operation in Libya is actually costing taxpayers about $2 billion per day, because that’s what the Pentagon and other security agencies of the federal government spend to maintain a posture that allows the military to go anywhere and do anything on short notice’ (Thompson, 2011). Having armed forces on stand-by for deployment in humanitarian interventions is hugely expensive, and the so called ‘Revolution in Military Affairs’ seen over the last couple of decades, with increasingly expensive technology and military assets, has arguably contributed to this (Diesen, 2013). In sum, unless otherwise specified, for the purposes of this paper I will consider the relevant burdens to be those that result from the loss of life and limb as well as the economic and material burdens facing contributing states. What fairness is can be spelled out in various ways, but here I will accept John Broome’s influential account. Broome contends that fairness is concerned ‘[…] only with how well each person’s claim is satisfied compared with how well other people’s are satisfied.’ Fairness requires that ‘[…] claims should be satisfied in proportion to their strength’ (Broome, 1990: 95). Applied to the case of humanitarian intervention, Broome’s conception of fairness must be complemented by an account specifying a) what it is that states have a claim to, and 9 b) what it is that determines the strength of their claims. Since humanitarian intervention is typically something potential interveners have an interest in avoiding, it seems reasonable to say with respect to a) that the relevant claims are states’ claims not to intervene (or, put differently, their claims not to carry the burdens of intervention). As for b), there are several alternative factors that could answer the question of what should determine the strength of the claims, such as ability to contribute, cost effectiveness, historical responsibility, or some combination of these.13 The objective here is not to evaluate the relative merits of different distributive principles, so for ease of exposition, I will use capacity or ability to intervene as a running example. To say that A has the ability to intervene is to say that A has the quantitative and qualitative human and material resources required to contribute to the objective of protecting people’s rights through humanitarian intervention.14 Obviously, this is a matter of degree. Applied to the Broomian view, this means that the burden of intervention ought to be distributed among states in proportion to their ability to contribute to the intervention. So, if, for example, France is twice as able as Belgium, then France should take on twice the burden. Against this background, the first claim I want to make is that it is simply important in itself that the burden of humanitarian intervention be shared fairly. Because ability is motivated by the need to enforce the victims’ rights effectively, we may say that this principle represents a hard case for the objection I will soon present. If the objection has force against a distributive account focused on ability, it seems likely that it would have even more force against an account where factors orthogonal to effectiveness, such as historical responsibility or communal bonds, determine the distribution of the duty to intervene. 13 For discussion, see (Hjorthen, 2017a). 14 A more complex definition of ability would include factors such as cost effectiveness, but for the present purposes it will suffice to consider the simple, resource-centred notion of ability. 10 But surely everyone thinks that fairness is good, it is only that distributive fairness among potential interveners seems a secondary concern in the case of humanitarian intervention. It is important to examine, therefore, whether there is a conflict between sharing the burdens of intervention fairly and effective intervention. The case for fair burden sharing seems to face an immediate and strong objection, namely that fair burden sharing is not achievable without compromising the effective operation of interventions. I will refer to this as the effectiveness objection. To bring this out we must consider the implications of the account of fairness mentioned above whereby the burden of intervention is to be distributed proportionate to a relevant property, such as ability to contribute. Given that all, or at least most, states have the ability to contribute to an intervention to some extent it seems we would end up with a very significant number of intervening states.15 This would be distributively fair, but it also seems problematic because the burden of undertaking humanitarian intervention cannot easily be distributed among a large number of states without compromising the operational effectiveness of interventions. One might therefore agree with the intrinsic importance of fairness and still claim that effective Harm Avoidance should be prioritised when answering the duty specification question. After all, what seems most important (and what motivates the search for an intervening agent in the first place) is that the rights of the victims are protected. Even if the burden of undertaking humanitarian intervention is not shared fairly among states, this might well constitute a lesser injustice than that which would befall the victims in such cases where the intervention does not take place or else is assigned to ineffective agents. To see how involving large numbers of states would be detrimental to effectiveness we have to consider what it is that makes for a successful humanitarian intervention. The 15 This is consistent with saying that some states would be unreasonably burdened by the duty and should therefore be exempted. 11 prospects for success are much stronger when the response is quick; there is a clear and appropriate objective; there is a strategy in place that is appropriate for achieving that objective; sufficient and relevant material resources are committed; and there is the required political will to see it through (Hultman et al., 2013; Krain, 2005; Regan, 1996; Seybolt, 2007: 270). But whenever a significant number of states work together in military operations, problems of coordination, interoperability (both in terms of troops and equipment), national caveats, and buck-passing tend to arise, thus undermining the prospects for success (see e.g. Böhmelt et al., 2010: cited in; Ruggeri et al., 2013: 404).16 It is fair to assume that these problems will be particularly pronounced for interventions involving large numbers of states. Indeed, examples such as the MONUSCO peacekeeping operation in the Democratic Republic of Congo – which as of October 2017 included 15,982 contingent troops, staff officers and experts from 48 states – indicate that effectiveness can be severely hampered by coordination problems between contributing states.17 Moreover, while some argue that increased diversity in UN peacekeeping operations can in fact improve effectiveness, it is questionable whether this result can be extrapolated to operations involving a considerably greater number of states (Bove and Ruggeri, 2016). It seems, therefore, that there is a conflict between fair burden sharing and effective intervention.18 If the effectiveness objection is sound and fair burden sharing conflicts with effective intervention, then it seems we are faced with a choice in which fair burden sharing stands to lose out. After all, the objective of humanitarian intervention is to protect the rights of victims 16 NATO defines interoperability as ‘The ability to act together coherently, effectively and efficiently to achieve Allied tactical, operational and strategic objectives’ (NATO, 2014: 2-I-8). For first-hand accounts of the challenges of interoperability, see (Bir, 1997; Cammaert, 2008). 17 One could question whether this is at all an example of an intervention involving many states. Closer inspection of the data from the UN Department of Peacekeeping Operations reveals that 88 % (14,155) of the military personnel come from the top ten contributors (UN, 2017a; 2017b). Despite this, it is probably the closest we can get to a contemporary real-world example of an intervention including a large number of states. 18 Arguably, the effectiveness objection is not restricted to fair burden sharing. The objection applies to all burden sharing schemes that distribute the burden of intervention among a large number of states. 12 of mass atrocities. Hence, the message of the effectiveness objection is that we would be ill advised to emphasise fair burden sharing when answering the duty specification question for humanitarian intervention.19 But does the effectiveness objection seal the fate of the argument for fair burden sharing for humanitarian intervention? In what follows I will consider possible responses to this challenge. Responses to the effectiveness objection In light of the effectiveness objection the case for fair burden sharing for humanitarian intervention seems rather weak. Given the importance of protecting the rights of the victims, it seems we should prioritise effective harm avoidance. But there are several responses that can be made against the effectiveness objection. First, it is worth pointing out that the effectiveness objection does not rule out that the intrinsic value of fairness may sometimes determine how the duty of intervention should be distributed. It might be that in some cases fairness and effectiveness will coincide perfectly, and in such cases, fairness could be a tiebreaker. However, this is unlikely to happen very often. Hence, if the argument for distributive fairness is only relevant as a tiebreaker, the case for fair burden sharing seems quite weak. One could easily agree with the intrinsic importance of fairness but still claim that concern for distributive fairness is overridden by the need for effective intervention. A second response is to say that even if the burden of undertaking humanitarian intervention should not be distributed among a large number of states, we can still accommodate fair burden sharing, albeit in a restricted sense. This response relies on a modification of what distributive fairness requires by adding an effectiveness proviso. Once 19 The severity of this problem is particularly pronounced if states’ claims not to intervene are determined by factors orthogonal to effectiveness, such as historical responsibility or communal bonds. 13 such a proviso is included, the burden that is to be distributed is defined in terms of what it takes to realise the goal (in this case protecting the rights of the victims effectively). Hence, were we to distribute the task of undertaking humanitarian intervention among a great many states we would no longer be distributing the burden of realising the goal, but rather the burden of an ineffective attempt at doing so. This restricted conception of fair burden sharing avoids the effectiveness objection by adjusting the requirement of proportionality so that the burden is only distributed among the number of states that is compatible with the effective performance of the intervention. By way of example, if effectiveness is undermined by having more than five states sharing the burden, it would not be a problem of fairness (on this restricted account) if, for example, the UK, France, Germany, Italy, and Spain are the only ones to share the burden of intervention, provided the burden of realising the goal (of protecting the victims) is shared among these states in proportion to their ability. Yet, it is hard to escape the intuition that it would be more fair if the burden of intervention could be distributed in a way that more fully accommodates the requirements of (unrestricted) distributive fairness. For this reason, we should look for other responses to the effectiveness objection. A third response comes in the form of what I will call the undersupply argument, which supplies an instrumental reason for caring about fair burden sharing for humanitarian intervention. The message of this argument is that victims of mass atrocities would benefit from fair burden sharing among potential interveners. This relies on the premise that a comparatively ineffective intervention can be better than no intervention at all. Indeed, it is trivially true that we cannot have ‘effective intervention’ without ‘intervention’. Even if distributing the duty to intervene fairly would harm operational effectiveness, it could be that fair burden sharing among interveners would be good for the victims of atrocities because it can help solve the problem of undersupply of intervention. Hence, if we care about protecting 14 the victims’ rights, we should also care about distributive fairness among potential interveners. The argument I suggest can be summarised in the following way: P1: States are unwilling to intervene in cases where the costs of intervention exceed a level L. P2: Fair burden sharing involves distributing the costs among more states. P3: Distributing the costs among more states makes it such that the cost facing each contributing state goes down, reducing the likelihood that it will exceed the level L. C: Fair burden sharing helps increase willingness to intervene. This argument rests on the assumption that the first hurdle to effective humanitarian intervention is that there is no intervention at all. Despite the (sometimes reasonable) criticism that has been levelled against humanitarian interventions that did take place, a far more common (and serious) problem is, and has been, interventions that did not take place, appropriately captured by Simon Chesterman’s term ‘inhumanitarian non-intervention’ (2003: 54). There are, as Pattison notes, ‘[…] too many occasions when humanitarian intervention should be undertaken, but is not’ (2008: 127-128; see also Seybolt, 2016: 563- 564). My argument is that by distributing the burden of intervention more fairly, more interventions that should take place would take place. Some may view this as controversial, arguing that intervention tends to make matters worse, and that we should therefore try to limit their number. But note that I am not arguing for more intervention tout court, but for more interventions that live up to reasonable criteria for permissibility (such as the ad bellum criteria in the Just War tradition).20 There is little doubt that states do not always heed such criteria, and there have been examples both of failed interventions (e.g. the UNOSOM II 20 On which, see (Fixdal and Smith, 1998; Frowe, 2014). 15 intervention in Somalia) and misuse of humanitarian arguments for ulterior purposes (e.g. the US and UK argument for the second war in Iraq, or the Russian argument in 2008 that it was invading Georgia to protect Russian-speaking minorities from genocide) (Glanville, 2014: 152-153; Pattison, 2010: 174; Seybolt, 2007: 272). Despite this, I believe this objection can be met by clarifying the baseline for measuring success. As Pattison notes: ‘[…] inflated expectations may mean that an intervention is wrongly seen as unsuccessful because it has not tackled all the problems that a society faces, even though […] the situation is much better than it would have been without intervention (or any other course of action)’ (Pattison, 2010: 83). It is probably true of most interventions that some negative consequences have resulted. Yet, it is unreasonable to count as a failure an intervention that saved more lives than non- intervention, or other available alternatives (Pattison, 2010: 83; Seybolt, 2007).21 On this reading of what counts as a successful intervention the number of failed cases is significantly reduced, and this largely undermines the objection. Hence, while we should reject calls for interventions that would make matters worse, this is not a major threat to the undersupply argument. Let us now go through the premises of the argument. By way of defending the first premise, there is considerable support in the literature for the idea that lack of political will has on several occasions negatively affected the occurrence of interventions, and moreover that the often high political, material and economic costs of humanitarian intervention have a negative effect on political will (Bellamy, 2011: 172, 199; Evans, 2008: 218 & ch. 10; Hehir, 2010a: 101-102, 124; Power, 2003: 508; Welsh, 2004: 5; Wheeler, 2000: 241, 299-304).22 But, as history shows, there have been several cases where states have undertaken humanitarian intervention. This means that at least some states are willing to intervene 21 This is consistent with saying that intervention is sometimes impermissible because the prospects for success are too low or because the intervention would not live up to the requirement of proportionality. 22 For discussion of undersupply in the sense that demand for intervention is not met by supply, see The People on War Report (ICRC, 1999: 74-79). 16 provided they find the costs of doing so acceptable, or, put differently, that the costs do not exceed a certain level L.23 This suggests that bringing down the costs would indeed contribute to lowering the resistance towards intervening. Assuming that this can be done to a sufficient extent, the problem of undersupply would be mitigated. As for P2, I assume that most reasonable principles for fair burden sharing would distribute the burden among a greater number of states compared to the current practice where interventions are generally performed by a small number of states. For example, even though some states can of course be expected to be a lot more able than others, it seems very likely that many states will have at least some ability to contribute. While there is no doubt that the US is the world’s number one military power par excellence, the fact that many states contribute to UN peacekeeping operations, and/or are integrated in the structure of NATO shows that many states have at least some level of ability to contribute. Using the example of a proportional application of ability to contribute we would then have to conclude that the burden should be distributed among a large number of states.24 Finally, with regard to P3, it seems highly plausible that sharing the burden of intervention among more states would reduce the exposure of individual states to costs that they find unacceptable. Assuming that sharing the burden fairly would achieve this to a sufficient extent, more cases would be such that the costs facing contributing states would not exceed the critical level. This should lower states’ unwillingness to participate in humanitarian intervention. Moreover, a second, moralised, version of this premise can be made, stating that distributing the costs among more states makes it such that the cost facing 23 Whether this is plausible depends on how the notion of costs is fleshed out. Moreover, the argument does not apply to states that have strong principled objections to humanitarian intervention, or to states that lack relevant capacity to intervene. Such states either will not, or cannot, intervene, regardless of the costs. 24 Whether the same logic would apply to principles based on, e.g., historical responsibility depends on how historical responsibility is defined as well as on the details of any particular case. The logic suggested above is more plausible on a broad reading of historical responsibility such as that suggested by Pogge (1992; 2008). However, it seems implausible that the duty to intervene should be assigned based on historical responsibility alone. For discussion, see (Hjorthen, 2017a; Pattison, 2011: 217). 17 each contributing state goes down, reducing the likelihood that they will exceed the level where contributing to the intervention would be supererogatory.25 To the extent that states care about their moral obligations (perhaps a doubtful assumption, at least if the claim is that states care more about moral obligations than self-interest), the moralised P3 says that there will be more cases where the costs facing each state are such that contributing to the intervention is morally required, and that this would improve willingness to contribute. Yet, P3 might face the objection that, if the burden of intervention were to be shared among more states, some states that up until now have avoided taking any of the cost of intervention would be required to take at least some of the cost, and this might be higher than what these states are willing to accept. Such states seem to have a self-interested reason to oppose taking on this cost, and thereby also to reject fair burden sharing. How, then, would fair burden sharing help solve the problem of undersupply? In response, it should be noted that while some states would have to contribute more than before, those that currently contribute the most would have to contribute less. This might make humanitarian intervention seem more acceptable to the governments and citizens of such states (an important point given that the states in question are often powerful states with significant influence over decisions about whether to intervene). This point seems even more plausible once we take into account a key tenet from realist international relations theory, which argues that states are particularly concerned with the distribution of relative power, and by extension with relative costs (see e.g. Waltz, 1979). It should also be noted that, under a fair system of burden sharing, the costs that each state would have to carry would likely be relatively low. Even though interventions are often costly, the moderate size of many states’ ability to contribute would entail that their designated share would be quite modest. This is important, again, because it makes it less likely that the costs facing each state will exceed the level that 25 For an argument that all permissible wars are in fact morally mandatory, see (Oberman, 2015). 18 can be required as a matter of duty, and because it makes it harder for states to defend non- contribution (see e.g. Caney, 2005: 253; Pattison, 2010: 198).26 If the above is true – as seems highly plausible – then the net effect of fair burden sharing on the willingness of states to intervene would be positive. Finally, it could be objected that P3 highlights an ambiguity in the argument. It might be that it is not fair burden sharing but simply burden sharing that is doing the work in terms of increasing willingness to intervene. In that case the desired effect could be achieved by distributing the burden among more states irrespective of whether the distributive scheme is fair. For instance, even if the burden was distributed among states according to a morally arbitrary factor such as the number of letters in their names, the burden would be distributed among a larger number of states compared to the status quo. In response to this objection I argue that there should indeed be an advantage to relying on fair burden sharing rather than distributing the costs among more states according to some arbitrary factor. This is because fair burden sharing should also contribute to the perceived legitimacy of intervention, something that would increase the likelihood that intervention takes place.27 This argument builds on the premises that i) there is a connection between sound principles of burden sharing and what people in general take to be good principles for burden sharing, and ii) that what people in general think about this matters for the political feasibility of intervention taking place. A distributive scheme based on unsound or clearly irrelevant principles would therefore undermine the undersupply argument.28 It is unlikely that states would accept a distributive scheme based on attributes as obviously irrelevant as, for example, the number of 26 This might be explained by what is known in international relations theory as the ‘logic of appropriateness’. On which, see (Finnemore, 1996: 28-31). 27 This argument is inspired by Brommesson and Friberg-Fernros (2013: 147-150), who argue that one condition for the feasibility of a R2P-regime lies in the logic of arguing: ‘[…] in order to be feasible in the long run according to the logic of arguing, an expanded regime on the use of force needs to be normatively persuasive’ (2013: 148). 28 Presumably, this is compatible with several different principles. This is not a problem for my argument. 19 letters in a state’s name. In the end, though, while the undersupply argument strengthens the case for fair burden sharing for humanitarian intervention, it is not obvious that fair but less effective intervention is always better than no intervention, or better than unfairly distributed but operationally more effective intervention.29 In such cases this response to the effectiveness objection is not available. In sum it seems that there is a case for fair burden sharing in cases where the effectiveness objection does not apply; where we adopt a restricted account of fairness; or where some intervention is better than no intervention. This limits the scope and force of the effectiveness objection, but still it seems we cannot avoid the conclusion that concern for the victims will often override distributive fairness among interveners when deciding who should intervene. This raises the question of whether there are any practical or institutional solutions available that would allow us to reconcile effectiveness and fair burden sharing in light of the effectiveness objection. Achieving Harm Avoidance Justice and Burden-Sharing Justice for Humanitarian Intervention So far, we have seen that there is a prima facie case for sharing the burdens of humanitarian intervention fairly. But we have also seen that the case for fair burden sharing is vulnerable to the effectiveness objection. Several responses are available that reduce the scope and force of this objection, but the objection continues to show that it is difficult to achieve fair burden sharing without compromising the effectiveness of intervention. In this section I will examine three practical approaches that might seem to allow a role for fair burden sharing without running into the effectiveness objection. 29 Moreover, a certain amount of epistemic humility is in order as the undersupply argument remains to be empirically tested. 20 Full institutionalisation of humanitarian intervention The idea of creating an international institution for humanitarian intervention has a long history and has been discussed by several theorists and practitioners (Bagnoli, 2006; Boyle, 2006; Buchanan, 2006; Buchanan and Keohane, 2004; 2011; Caney, 2005: 152-154, 162, 264; Kaysen and Rathjens, 1997; Kinloch-Pichat, 2004; Pattison, 2008; 2010: 229-236; Tan, 2006; Williams, 2005). The focus of these, however, has mainly been on potential advantages in terms of effectiveness and legitimacy. Less attention has been devoted to how institutionalisation might facilitate fair burden sharing. Obviously, whether institutionalisation would have the desired effect would depend on the particulars of the institutional scheme. Space does not permit a full discussion of what it might look like, but some central factors are captured by Pattison, who suggests that a large, cosmopolitan UN volunteer force ought to be created, controlled by cosmopolitan democratic institutions and with its financial and material resources disentangled from the interests of major states (2008; 2010: 233-236).30 The institution ought to have its own forces and capabilities, be sufficient in size to undertake several interventions at the same time, as well as having a separate mechanism for making decisions about when and where to intervene, be guided by an appropriate theory of jus ad bellum and jus in bello, and, importantly, have some form of secretariat or administration responsible for collecting and administering funds from states through an appropriate scheme for fair burden sharing.31 From the point of view of distributive fairness, the central advantage of full institutionalisation is that it would allow the distribution of the burdens of intervention 30 For further discussion of decision-making and accountability in this context, see (Buchanan and Keohane, 2004). 31 On which, see (Hjorthen, 2017b). 21 without running into the effectiveness objection. When it comes to the burden of undertaking the intervention one can imagine two schemes whereby the burden could be distributed fairly. One option would be to say that when states voluntarily establish an institution tasked with undertaking humanitarian interventions, that moreover relies on volunteer forces, the problem of distributive fairness is resolved. It seems plausible that an agent that has been created to take on the burden and where those involved do so voluntarily has no claim to reject the burden of intervention. Another option would be to set up the institution so that states contribute troops and equipment in proportion to their ability, but where the force is controlled and operated by the institution on a permanent basis. Hence, even though the troops and equipment would come from individual states, the fighting would be done by the UN force qua UN force, thus avoiding the coordination problems that come with having a large number of states directly involved in the fighting.32 On either scheme, states would be left to share the economic burden of financing the institution. This is crucial seeing as distributing the burden of paying for intervention does not entail the same operational coordination problems as distributing the burden of undertaking intervention. Moreover, by having a mechanism for collecting funding from states, the institutional approach would facilitate sharing the economic burdens fairly. Compared to the current, state-based approach we would avoid having to calculate how much of a discount states that contribute militarily should get when it comes to their economic contribution, and it would become easier to take into account the long-term costs of military capabilities (these would be held by the institution but paid for by states). Moreover, if humanitarian intervention is paid for by everyone, the potential problem of historical taint – whereby the effectiveness of interventions is compromised by having historically responsible states pay for the 32 Whether the second scheme could successfully combine operational effectiveness with distributive fairness would depend on the frequency of troop rotation as well as how often states’ contributions would have to be adjusted for distributive fairness. 22 intervention precisely because they are historically responsible – can more easily be avoided (Hjorthen and Duus-Otterström, 2016). In sum, although institutionalisation of this kind does not guarantee distributive fairness, I have argued that it would make it easier to distribute both the burden of undertaking the intervention and the economic burden of intervention among states, with the added benefit that it helps spread out political and other costs. This should facilitate fair burden sharing for humanitarian intervention. But it is important not to forget that institutionalisation should also provide a comparative improvement in terms of effective harm avoidance. First, we would not have to go through the cumbersome process of deciding who should intervene on a case-by-case basis (Tan, 2006: 105). The institution would be the designated intervener and would thus be what Bernard Williams refers to as ‘institutionally salient’ to mass atrocity cases (Williams, 2005: 151). Relatedly, there is reason to believe that institutionalisation would improve consistency. One of the major critiques facing humanitarian intervention is that it is often selectively applied (Ayoob, 2002: 85-87). Since institutionalisation would improve both capacity for intervention and rely on impartial decision-making procedures regarding when and where to intervene, there is reason to believe that selectively would be less of a problem (Bagnoli, 2006: 133-134). Finally, an institution (as described) should be able to use and employ resources more effectively and be able to reap the rewards of economies of scale. This is important, both in itself and because, if the costs go down, the share of cases where humanitarian intervention is needed and where the costs are such that they fall within what can be demanded as a matter of duty would presumably go up. This means that we would more often be able to avoid tragic cases – that is, cases where the costs are such that an agent cannot be reasonably required to undertake the intervention, even if it is morally desirable (Caney, 2005: 253; Pattison, 2010: 198). Other things being equal this means that more lives can be saved. 23 In sum, an institution for humanitarian intervention should prove useful for accommodating the differential concerns of effective intervention and distributive fairness. However, there are many further questions to be asked in relation to the desirability and feasibility of such a substantial reform. Indeed, in the short to medium term it is hard to see how such a massive reform could be put in place. It is therefore important to examine alternatives that might be more accessible in the near future. Alternating interveners A more feasible option in the short term might be to adopt a diachronic approach whereby the burden of intervention is shared fairly over time by having states alternate in taking on the burdens of intervention. On this view it is not required that the burden of intervention is distributed fairly for each intervention. This would avoid the problem of having an excessive number of states involved in each intervention. However, while this proposal seems feasible, three arguments undermine it. First, it might be that it would take a very long time to achieve a diachronically fair outcome. It would take a long time, or would require an implausibly large number of interventions, to achieve anything resembling proportionality. This is particularly problematic if we take an individualist view whereby individuals are the ultimate units of moral concern. For example, while the citizens of state A would take the cost of undertaking an intervention at t1, state B’s citizens might take the cost of the next intervention at t2, at which point the good citizens of A, who took the cost at t1, are no longer alive. Second, a more pragmatic point can be made that the practice of having alternating interveners would undermine the undersupply argument. That other states might contribute in the future might not be enough to alleviate states’ concerns about costs. For example, A might not trust that B will take on the cost at t2, and therefore worry that it will be left with the costs again. A might take this as a reason not to act at t1. This is not an unreasonable 24 worry. For example, when in 2006 the EU was called upon to send its Battlegroups to monitor elections in DR Congo, Germany, which was on rotation for the EU Battlegroups at the time, refused to lead the operation, and France and Britain were required to step in (Matlary, 2009: 173). Third, it can be argued that the idea of having alternating interveners is not viable. For the idea of alternate interveners to work it would have to be the case that different interveners would be selected each time. But it is not clear that different interveners can be chosen on each occasion without harming the effectiveness of the intervention. Given that the distribution of capacity for intervention among states is rather static, there are strict limits as to how much alternation there can be without compromising the effectiveness of interventions. Against this one could argue that having a system of alternating interveners could be effective over time even though it is not effective on each occasion. But that would of course be of little comfort to the victims in the perhaps many cases where the intervention is carried out by ineffective states. For these reasons it would be comparatively better if an alternative scheme for assigning the burdens of intervention could be found. Institutionalisation light - individuation of burdens Given the political and practical difficulties involved in creating a global force to undertake humanitarian intervention, in the short to medium term the best option might be to set up a more limited institutional scheme focused only on the economic burden of intervention. Hence, in contrast to most accounts of institutionalisation of humanitarian intervention, which tend to cover both the burden of undertaking intervention and the burden of providing funding (e.g., Bagnoli, 2006; Tan, 2006), the idea here is to focus only on the burden of paying for interventions. The idea that we can accommodate concerns of fairness by having some states undertake the intervention while others contribute in other ways, such as by providing funding and material resources, has been mentioned by several theorists. As Pattison suggests, ‘[…] although other agents may not have the duty to undertake 25 humanitarian intervention, they may nevertheless have other, associated duties, related to the responsibility to protect and the prevention of human suffering that are equally demanding. These might include funding the intervention and providing equipment, and these will further offset any unfairness’ (Pattison, 2010: 197-198). Relatedly, Cécile Fabre (2012: 190-191) has suggested that although some agents ought not to perform the intervention (for reasons of effectiveness), they can be required to bear a larger share in terms of funding the war and providing equipment. In line with these ideas, an institutional scheme focusing only on the burden of paying for intervention would help facilitate distributive fairness among states in the context of humanitarian intervention, albeit in a limited sense. While this institutional scheme would only partially solve the problem of distributive fairness, the key benefit of singling out the burden of paying is that it makes at least part of the burden of humanitarian intervention amenable to distribution among a large number of states without running into the effectiveness objection. Specifically, while this proposal would not facilitate distributive fairness for the burden of undertaking intervention, it would allow us to employ an unrestricted notion of fairness for the duty of bearing the economic and material costs of intervention. Moreover, this would likely help distribute the political costs of intervention more widely. While it is perhaps not a requirement of fairness that these costs be distributed, it would certainly be advantageous in terms of alleviating the problem of undersupply. In sum, distinguishing between the burdens of intervention through an institutional scheme focusing only on the burden of paying for intervention, would (partly) accommodate distributive fairness by invoking associated duties (the duty to pay) for non- interveners without running into the effectiveness objection.33 33 Over time, such a scheme could also be expanded to take into account the distribution of other duties relating to protecting people’s rights, such as mitigating climate change or protecting refugees. 26 Finally, although this to would require a level of institutionalisation, it seems quite feasible that such a scheme could be adopted. After all, the UN already has a system for distributing the costs of peacekeeping operations among states (Bellamy et al., 2010).34 The existing institutional set up could be amended to include funding for humanitarian intervention more generally. Moreover, this limited institutional scheme is compatible with having individual states join together to distribute the burden of undertaking interventions based on the restricted notion of fairness discussed above whereby the performance of the intervention is only distributed among a number of states compatible with the effective performance of the intervention. For these reasons, incorporating a scheme whereby the burden of funding interventions can be fairly distributed among states would enable a significant improvement in terms of fair burden sharing in the context of humanitarian intervention even in the absence of full institutionalisation. Conclusion In this paper I have examined the case for fair burden sharing when answering the duty specification question for humanitarian intervention. I have made two main claims: (1) that distributive fairness is important for humanitarian intervention, and (2), that this should be reflected in the institutions and practices for intervention. Supporting the first claim is the argument that fairness is important in itself. I then defended the case for fair burden sharing against the objection that it would compromise the effective operation of interventions. The objection showed that the case for distributive fairness is often overridden by the importance of protecting the rights of the victims, but as the final part of the analysis showed there are practical approaches available that allows us to reconcile our concern for the victims with 34 For discussion of the UN scheme in the context of distributive fairness, see (Hjorthen, 2017b). 27 distributive fairness among interveners. In the long term, effectiveness and fairness may be reconciled by creating an institution for humanitarian intervention, but in the short term we would do well to distinguish between the duty to undertake intervention and the duty to pay for it. Acknowledgements Previous versions of this article were presented at the Nordic Network in Political Theory in Uppsala; the Graduate political theory seminar, DPIR, University of Oxford; the Norwegian political science conference in Oslo; the MPSA Annual Conference in Chicago; the Norwegian political science conference in Stavanger; and at the Research Seminar in Practical Philosophy and Political Theory, University of Gothenburg. I gratefully acknowledge the helpful and constructive comments I received from the participants at these events. Special thanks go to my discussants at these events, Jouni Reinikainen, Grethe Netland, Natalia Kovalyova, Oluf Langhelle and Marcus Agnafors who provided extensive and helpful comments. Special thanks also go to James Pattison, Simon Caney, Kim Angell, Robert Huseby, Cornelius Cappelen, Göran Duus-Otterström, Henrik Friberg-Fernros, and the three anonymous reviewers of Political Studies who have all provided invaluable comments along the way. References: Ayoob M. (2002) Humanitarian Intervention and State Sovereignty. The International Journal of Human Rights 6: 81 - 102. 28 Bagnoli C. (2006) Humanitarian Intervention as a Perfect Duty: A Kantian Argument. In: Nardin T and Williams MS (eds) Humanitarian Intervention. NOMOS XLVII. New York, NY: New York University Press, 117-142. Bellamy AJ. (2006) Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit. Ethics & International Affairs 20: 143-169. Bellamy AJ. (2011) Global politics and the responsibilty to protect: from words to deeds, Abingdon: Routledge. Bellamy AJ, Williams P and Griffin S. (2010) Understanding peacekeeping, Cambridge: Polity Press. Bir C. (1997) Interoperability and intervention operations. The RUSI Journal 142: 22-26. Böhmelt T, Metternich N, Pilster U, et al. (2010) The Effectiveness of Peacekeeping Missions in Civil Wars: Disaggregating Interventions, 1948-2000 Credibly Solving Commitment Problems.: Typescript, University of Essex and ETH Zurich. Bove V and Ruggeri A. (2016) Kinds of Blue: Diversity in UN Peacekeeping Missions and Civilian Protection. British Journal of Political Science 46: 681-700. Boyle J. (2006) Traditional Just War Theory and Humanitarian Intervention. In: Nardin T and Williams MS (eds) Humanitarian Intervention NOMOS XLVII. New York, NY: New York University Press, 31-57. Brommesson D and Friberg-Fernros H. (2013) The feasibility of an expanded regime on the use of force: the case of the responsibility to protect. Journal of International Relations and Development 16: 138-166. Broome J. (1990) Fairness. Proceedings of the Aristotelian Society 91: 87-101. Buchanan A. (1999) The Internal Legitimacy of Humanitarian Intervention. Journal of Political Philosophy 7: 71-87. Buchanan A. (2006) Institutionalizing the just war. Philosophy & Public Affairs 34: 2-38. 29 Buchanan A and Keohane RO. (2004) The preventive use of force: a cosmopolitan institutional proposal. Ethics & International Affairs 18: 1-22. Buchanan A and Keohane RO. (2011) Precommitment Regimes for Intervention: Supplementing the Security Council. Ethics & International Affairs 25: 41-63. Cammaert P. (2008) A Peacekeeping Commander's Perspective. The RUSI Journal 153: 68- 71. Caney S. (2005) Justice beyond borders: a global political theory, Oxford: Oxford University Press. Caney S. (2014) Two kinds of climate justice: avoiding harm and sharing burdens. Journal of Political Philosophy 22: 125-149. Chesterman S. (2003) Hard Cases Make Bad Law: Law, Ethics and Politics in Humanitarian Intervention. In: Lang A (ed) Just Intervention. Washington, DC: Gerogetown University Press, 46-61. Diesen S. (2013) Towards an Affordable European Defence and Security Policy? The Case for Extensive European Force Integration. In: Matlary JH and Petersson M (eds) NATO's European Allies. Military Capability and Political Will. Basingstoke: Palgrave MacMillan, 57-70. Erskine T. (2014) Coalitions of the Willing and Responsibilities to Protect: Informal Assiciations, Enhanced Capacities, and Shared Moral Burdens. Ethics & International Affairs 28: 115-145. Evans GJ. (2008) The responsibility to protect: ending mass atrocity crimes once and for all, Washington, DC: Brookings Institution Press. Fabre C. (2007) Mandatory Rescue Killings. Journal of Political Philosophy 15: 363-384. Fabre C. (2012) Cosmopolitan War, Oxford: Oxford University Press. 30 Finnemore M. (1996) National interests in international society, Ithaca, NY: Cornell University Press. Fixdal M and Smith D. (1998) Humanitarian Intervention and Just War. Mershon International Studies review 42: 283-312. Frowe H. (2014) Judging armed humanitarian intervention. In: Scheid DE (ed) The Ethics of Armed Humanitarian Intervention. Cambridge: Cambridge University Press, 95-112. Glanville L. (2014) Armed humanitarian intervention and the problem of abuse after Libya. In: Scheid DE (ed) The Ethics of Armed Humanitarian Intervention. Cambridge: Cambridge University Press, 148-165. Gomes B. (2011) The duty to oppose violence: humanitarian intervention as a question for political philosophy. Review of International Studies 37: 1045-1067. Greenberg N, Iversen A, Hull L, et al. (2008) Getting a peace of the action: measures of post traumatic stress in UK military peacekeepers. Journal of the Royal Society of Medicine 101: 78-84. Guardian T. (2011) UK operations in Libya: the full costs broken down. Available at: https://www.theguardian.com/news/datablog/2011/sep/26/uk-operations-libya-costs [accessed 20 September 2016]. Hehir A. (2010a) Humanitarian Intervention. An introduction, Basingstoke: Palgrave Macmillan. Hehir A. (2010b) The Responsibility to Protect: "Sound and Fury Signifying Nothing"? International Relations 24: 218-239. Hjorthen FD. (2017a) Who Should Intervene? Res Publica 23: 391-407. Hjorthen FD. (2017b) Who should pay for humanitarian intervention? European Journal of Political Theory 0: (epub ahead of print) 1-20. 31 Hjorthen FD and Duus-Otterström G. (2016) Humanitarian intervention and historical responsibility. Journal of Global Ethics 12: 187-203. Hultman L, Kathman J and Shannon M. (2013) United Nations Peacekeeping and Civilian Protection in Civil War. American Journal of Political Science 57: 875-891. ICRC. (1999) The People on War Report. Available at: https://www.icrc.org/eng/assets/files/other/icrc_002_0758.pdf [accessed 4 February 2016]. Kaysen C and Rathjens GW. (1997) Send In the Troops: A UN Foreign Legion. The Washington Quarterly 20: 207-228. Kinloch-Pichat S. (2004) A UN'legion': between utopia and reality, London: Routledge. Krain M. (2005) International Intervention and the Severity of Genocides and Politicides. International Studies Quarterly 49: 363-388. Lango JW. (2001) Is Armed Humanitarian Intervention to Stop Mass Killing Morally Obligatory. Public Affairs Quarterly 15: 173-191. Matlary JH. (2009) European Union security dynamics: in the new national interest, Basingstoke: Palgrave Macmillan. McMahan J. (2010) The just distribution of harm between combatants and noncombatants. Philosophy & Public Affairs 38: 342-379. Michel P-O, Lundin T and Larsson G. (2003) Stress Reactions Among Swedish Peacekeeping Soldiers Serving in Bosnia: A Longitudinal Study. Journal of Traumatic Stress 16: 589-593. Nardin T. (2006) Introduction. In: Nardin T and Williams MS (eds) Humanitarian Intervention. NOMOS XLVII. New York, NY: New York University Press, 1-28. NATO. (2014) AAP-6. NATO Glossary of Terms and Definitions, Brussels: NATO. 32 Oberman K. (2015) The Myth of the Optional War: Why States Are Required to Wage the Wars They Are Permitted to Wage. Philosophy & Public Affairs 43: 255-286. Øverland G. (2011) High-Fliers: Who Should Bear the Risk of Humanitarian Intervention? In: Tripodi P and Wolfendale J (eds) New Wars and New Soldiers: Ethical Challenges in the Modern Military. Farnham: Ashgate, 69-86. Pattison J. (2008) Humanitarian Intervention and a Cosmopolitan UN Force. Journal of International Political Theory 4: 126-145. Pattison J. (2010) Humanitarian intervention and the responsibility to protect: who should intervene?, Oxford: Oxford University Press. Pattison J. (2011) The Rights and Duties of Humanitarian Intervention: Who Should Intervene? A Reply to Two Critics. Global Discourse: An Interdisciplinary Journal of Current Affairs and Applied Contemporary Thought 2: 213-217. Pattison J. (2014) Bombing the beneficiaries: the distribution of the costs of the responsibility to protect and humanitarian intervention. In: Scheid DE (ed) The Ethics of Armed Humanitarian Intervention. Cambridge: Cambridge University Press, 113-130. Pogge TW. (1992) An Institutional Approach to Humanitarian Intervention. Public Affairs Quarterly 6: 89-103. Pogge TW. (2008) World Poverty and Human Rights. 2nd Edition, Cambridge: Polity Press. Power S. (2003) "A problem from hell": America and the age of genocide, New York, NY: Harper Perennial. Ralph J and Souter J. (2015) A special responsibility to protect: the UK, Australia and the rise of Islamic State. International Affairs 91: 709-723. Regan PM. (1996) Conditions of Successful Third-Party Intervention in Intrastate Conflicts. The Journal of Conflict Resolution 40: 336-359. 33 Roff HM. (2011) A Provisional Duty of Humanitarian Intervention. Global Responsibility to Protect 3: 152-171. Ruggeri A, Gizelis T-I and Dorussen H. (2013) Managing Mistrust: An Analysis of Cooperation with UN Peacekeeping in Africa. Journal of Conflict Resolution 57: 387- 409. Sareen J, Belik S-L, Afifi TO, et al. (2008) Canadian Military Personnel's Population Attributable Fractions of Mental Disorders and Mental Health Service Use Associated With Combat and Peacekeeping Operations. American Journal of Public Health 98: 2191-2198. Seybolt T. (2016) The Use of Force. In: Bellamy AJ and Dunne T (eds) The Oxford Handbook of the Responsibility to Protect. Oxford: Oxford University Press, 562-581. Seybolt TB. (2007) Humanitarian military intervention: the conditions for success and failure, Oxford: Oxford University Press. Shigemura J and Nomura S. (2002) Mental health issues of peacekeeping workers. Psychiatry and Clinical Neurosciences 56: 483-491. Tan K-C. (1995) Military Intervention as a Moral Duty. Public Affairs Quarterly 9: 29-46. Tan K-C. (2006) The Duty to Protect. In: Nardin T and Williams MS (eds) Humanitarian Intervention. NOMOS XLVII. New York, NY: New York University Press, 84-116. Tan K-C. (2015) Humanitarian Intervention as a Duty. Global Responsibility to Protect 7: 121-141. Tesón FR. (2005) Humanitarian intervention: an inquiry into law and morality, Ardsley, NY: Transnational Publishers. Thompson L. (2011) The Real Cost Of U.S. In Libya? Two Billion Dollars Per Day. Available at: http://www.forbes.com/sites/beltway/2011/03/28/the-real-cost-of-u-s-in- libya-two-billion-dollars-per-day/#2e1fc2a23f98 [accessed 2 April 2017]. 34 UN. (2017a) MONUSCO Fact Sheet. Available at: https://peacekeeping.un.org/en/mission/monusco [accessed 18 January 2018]. UN. (2017b) Summary of Contributions to Peackeeping by Mission, Country and Post, 30/11/2017. Available at: http://peacekeeping.un.org/sites/default/files/mission_country_post.pdf [accessed 3 January 2018]. Waltz KN. (1979) Theory of international politics, New York, NY: McGraw-Hill. Welsh J. (2004) Introduction. In: Welsh J (ed) Humanitarian intervention and international relations. Oxford: Oxford University Press, 1-10. Wheeler NJ. (2000) Saving strangers: humanitarian intervention in international society, Oxford: Oxford University Press. Williams B. (2005) Humanitarianism and the Right to Intervene. In: Hawthorn G (ed) In the Begining Was the Deed - Realism and Moralism in Political Argument. Princeton, NJ: Princeton University Press, 145-153. 
work_nmzlx6vylfd5hj4io4s2h3qbxq	----	Data & Civil Rights :: http://www.datacivilrights.org/ 1 Data & Civil Rights: Criminal Justice Primer by Alex Rosenblat, Kate Wikelius, danah boyd, Seeta Peña Gangadharan, and Corrine Yu Produced for Data & Civil Rights Conference / October 30, 2014 Discrimination and racial disparities persist at every stage of the U.S. criminal justice system, from policing to trials to sentencing. The United States incarcerates a higher percentage of its population than any of its peer countries, with 2.2 million people behind bars. The criminal justice system disproportionately harms communities of color: while they make up 30 percent of the U.S. population, they represent 60 percent of the incarcerated population. There has been some discussion of how “big data” can be used to remedy inequalities in the criminal justice system; civil rights advocates recognize potential benefits but remained fundamentally concerned that data-oriented approaches are being designed and applied in ways that also disproportionately harms those who are already marginalized by criminal justice processes. Like any other powerful tool of governance, data mining can empower or disempower groups. The values that go into an algorithm, and the metrics it optimizes for, are baked into its design. Data could be used to identify discrimination in current practices, or to predict where certain combinations of data points are likely to lead to an erroneous conviction. When algorithms are designed to improve how law enforcement regimes are deployed, the question that data analytics raises is, which efficiencies are we optimizing for? Who are the stakeholders, and where do they stand to gain or lose? How do these applications intersect with core civil rights concerns? Where can we use big data techniques to improve the structural conditions criminal justice system that lead to disparate impacts on marginalized communities? How do we measure that impact, and the factors that lead to it? Background: Discrimination in Criminal Justice Major themes and existing challenges in the U.S. criminal justice system:  War on Drugs: Even though race/ethnicity are not a significant factor in the use or distribution of drugs, Blacks and Hispanics comprise 62 percent of those in state prisons for drug offenses. 1 According to a 2012 federal report, more than seventy percent of all persons sentenced for federal drug trafficking offenses were either Black (25.9 percent) or Hispanic (46.2 percent), many of whom often face harsh mandatory sentences. 2  Racial Profiling: Law enforcement actions that single out individuals based not on individual behavior, but instead on the basis of race, ethnicity, national origin, or religion, disproportionately target minorities as criminal suspects, skewing at the outset the racial and ethnic composition of the population ultimately charged, convicted, and incarcerated.  Police Misconduct: While strides have been made in the areas of police misconduct and brutality, incidents such as the shooting of unarmed African-American teenager Michael Brown in Ferguson, Missouri show us that police continue to use force disproportionately (both in terms of frequency and intensity) against people of color.  Mandatory Minimums: The proliferation of mandatory minimum penalties, particularly at Data & Civil Rights :: http://www.datacivilrights.org/ 2 the federal level as a result of the War on Drugs, has harmed minority communities and fueled the country’s incarceration rates. In an analysis of nearly 80,000 cases in 2010, the U.S. Sentencing Commission found that nearly 25 percent of offenders were sentenced to a mandatory minimum penalty. 3  Barriers to Re-Entry: Incarcerated individuals, especially racial minorities, face a number of challenges during their imprisonment and upon re-entry, including restrictions on interaction with their families, limited access to medical care, voting rights restoration, and employment discrimination. “Big Data” and Criminal Justice Over the last decade, many states have adopted big data technologies and practices, compiling large databases on their populations and deploying risk-assessment tools that analyze this data to set individuals’ conditions of confinement, probation, or parole. 4 Other arms of the criminal justice system, like the police, are adopting data-driven techniques for targeting potential offenders, as well as predicting crime “hot spots” or areas of town likely to contain high rates of criminal activity. The application of big data tools and practices in a criminal justice context raises questions about the kinds of data used for analysis and consequences of error, bias, or inaccuracies, including problems of cumulative disadvantage. 5 Data mining works most effectively with data containing binary characteristics: an email is spam or it’s not. 6 The rules of categorization for these two types of email are clear, and the potential consequences of a misclassification are fairly minor: routine scanning of email in the spam box can easily rectify the problem. When an algorithm calculates the profile of a likely or potential criminal, or of someone who deserves a short sentence or a long sentence, classificatory schemes entail complex (non-binary) determinations. Data-driven outcomes represent the potential for bias and error to be systematically propagated on a much larger, non-local scale, and criminal justice professionals may not have the technical expertise to detect or address these risks. Data mining techniques use past data to “train” algorithms and generate predictions about new situations. As a result, biases in the training data can lead to biases in algorithmically p outcomes. For instance, as law professor Frank Pasquale observes, “Drug or gun possession is as likely among whites as it is among racial minorities, but in New York City, racial minorities comprise the vast majority of persons who are stopped and frisked. Disproportionately more nonwhites than whites, therefore, will end up with criminal records for gun or drug possession.” 7 If an algorithm uses this data on drug or gun possession to predict who is likely to be in possession of these in future, than these disproportions could be reflected in how an algorithm learns to predict which characteristics, like race, are indicators of potential criminal activity. However, an algorithm that is constantly updating probabilities based on new data inputs could potentially weaken the prejudicial element, if it was not present in the evolving data set. More broadly, incarceration rates tend to affect disadvantaged communities, and particularly communities of color. The rate of incarceration per 100,000 people in 2005 was 412 for Whites, 742 for Hispanics, and 2,290 for Blacks. 8 Approximately half of all imprisoned offenders are incarcerated again within three years of their release. 9 When algorithms rely on the characteristics of convicted or arrested populations to predict persons who are likely to commit crime, they solidify a history of bias against those already disproportionately targeted by the criminal justice Data & Civil Rights :: http://www.datacivilrights.org/ 3 system. Similarly, a data-driven sentencing algorithm may reflect that past presumptions of criminal justice professionals about which traits best correlate with crime. Algorithms designed to find correlations from these prejudiced data would produce discriminatory outcomes. Human and Machine Bias Though inaccurate classifications (false positives and false negatives) 10 can result from both human-driven assessment systems and data-driven ones, society-wide faith in machine based- judgment can often overshadow problems of error, bias, and inaccuracies in automated decisions. Proponents often tout data analytics as a way of removing human bias from a range of law enforcement activities. Predictive analytics suggest that if a prosecutor or a probation officer can punch in the characteristics or actions of the subject in question, the algorithm can provide probabilities about that subject’s future actions based on how similar previous known individuals have responded to interventions. In theory, such an approach could serve to standardize results across the board and equalize the treatment of different populations. This is particularly important because there is tremendous evidence that shows unequal treatment and remedies. For example, a recent Justice Department investigation into the Shelby County juvenile court system in Memphis that found that black children were consistently punished more harshly than white children. 11 When algorithmic determinations are flawed, and individuals can manually override computer decisions (and these overrides can be biased, too), they may be hesitant to do so. “The algorithm told me to” can become a guiding rationale for people as they become more reliant on technology, to the point that acting contrary to algorithmic suggestions produces anxieties about being held liable for doing the wrong thing. For example, police held an African-American woman at gunpoint when an automated license-plate reader misidentified her vehicle as stolen. Though an officer noticed a discrepancy, police arrested the woman for possessing a stolen vehicle on the basis of the red flag generated by the license plate reader. 12 While manual overrides of computerized results and individualized decisions are not necessarily more fair, it is important to consider how automated decisions often come with an implicit, technophilic promise of accuracy and fairness that they do not necessarily deliver (even if the users are cautioned about their limitations by the designers). Given that any machine learning system will produce results that have error rates, how do we ensure that the people applying these technologies understand their limitations? How do we balance between the biases introduced by people and those introduced by technology? Algorithmic analysis can also outpace a human’s ability to accurately categorize patterns of behavior, raising questions about whether, when, and how algorithmic determinations should complement or replace human judgment. Since 1994, the New York City Police Department has been using a data-driven management system called CompStat, which organizes all of the data the police receive from official sources on crime development efficiently; it has a geographical component that produces maps of crime hot spots. The program has been adopted widely by other U.S. cities. 13 There is some evidence that computerized geographic mapping of crime hotspots have made policing more effective, partially because there was a significant drop in violent crime after CompStat, and other similar systems, were deployed, though it is not conclusive, and other factors might better explain the reductions in crime. 14 Generally, causal connections are hard to draw in this area because there is a small body of research into the kinds of policing strategies that are the most effective in reducing crime in the long-term, particularly with a focus on hotspots, Data & Civil Rights :: http://www.datacivilrights.org/ 4 and because confounding variables make it difficult to compare the effectiveness of different policing strategies. 15 However, its proponents do assert that data-driven policing improves public safety. 16 Currently, individuals have few means to confront or challenge flawed algorithmic determinations. Chicago’s police department recently took the mapping process a step further, adopting an algorithm that generates a ‘heat map’ not of places, but of people deemed at risk for perpetrating violent offenses. 17 Research by sociologist Andrew Papachristos suggests that the people who are more at risk for violent crime are visible through their social networks (e.g. within a given neighborhood, or even a hotspot, some people are more at risk than others). Violent crime is ‘thicker’ around certain nodes of a network, and thus, predictions can be made around who is likely to be at risk for involvement in a violent crime. 18 When a member of the police department showed up at the house of Robert McDaniel to announce that police had identified him as at risk and placed him under informal police supervision, McDaniel was incredulous: he had never committed a violent offense, nor interacted with the police recently, and yet the algorithm pointed to him as a likely culprit. 19 How does an individual like McDaniel challenge that algorithmic calculation? Is an algorithmic profiling mechanism preferable to other forms of profiling? How does social-graph mapping interact with our notions of justice, fairness, and safety? In defining the power that algorithms have, we can locate culpability and responsibility in ways that are meaningful and provide channels of recourse to the people affected by algorithmic outputs. Selecting Attributes for Analysis Some of the factors now used in criminal justice algorithms put pressure on basic notions of justice, fairness and due process. In examining sentencing algorithms, law professor Sonja B. Starr describes, “The basic problem is that the risk scores are not based on the defendant’s crime. They are primarily or wholly based on prior characteristics: criminal history (a legitimate criterion), but also factors unrelated to conduct. Specifics vary across states, but common factors include unemployment, marital status, age, education, finances, neighborhood, and family background, including family members’ criminal history.” 20 When a sentencing algorithm translates these other factors into a risk score, it can impose disproportionate punishment on those who carry the socio- economic markers of poverty, relative to others convicted of the same crime. Even when such an algorithm excludes protected class characteristics from its calculations, other factors or characteristics can act as accurate proxies for these, which can pick out the same populations of color for special disadvantage. 21 However, not all data-driven risk assessments involve suspect variables. For instance, researchers at the Laura and John Arnold Foundation found that low-risk defendants are frequently imprisoned to await trials, and that higher-risk defendants accused of violent crimes are often released. 22 After developing a pretrial risk-assessment tool called the Public Safety Assessment- Court (PSA-Court)—one which excluded education, socio-economic status, and neighborhood from its calculations—researchers found that a defendant’s criminal history and the charges pending against them most reliably predict future criminal behavior. 23 (Nevertheless, disproportionately racialized arrest and incarceration rates mean that communities of color will still be systematically penalized by any risk assessment tool that uses criminal history as a legitimate criterion.) Data & Civil Rights :: http://www.datacivilrights.org/ 5 A risk assessment tool that avoids using obvious markers of socio-economic status may reduce disparities in patterns of imprisonment. For instance, a low-risk offender who is sitting in jail awaiting his trial likely does not have the money to pay bail or obtain a good lawyer who can articulate to a judge that her client is not a flight risk. If an algorithm makes up for a defendant not having resources to contest their pre-trial standing, does this make our justice system more efficient? Alternately, does this use of data perpetuate a broken system that otherwise might be reformed to avoid such errors? Potential Uses of Big Data for Civil Rights Currently, the focus of data analytics and its application to the criminal justice system is on predictive policing algorithms and data-driven sentencing. However, these applications do not solely define the application of big data techniques to the field of criminal justice. Some see data analytics solutions as a method for removing the human bias factor from a range of law enforcement activities. As indicated above, the possibility of standardizing results and equalizing the treatment of different populations is a significant and important driver in developing big data techniques. There are also tremendous opportunities to use large-scale data to better understand dynamics of racial profiling and police misconduct. In the state of North Carolina, the Southern Coalition for Social Justice has worked with police data on traffic law enforcement stops, a dataset that reaches back to 2000 (for state highway patrol) and 2002 (for all other police agencies), to discern patterns of racial profiling. 24 By standardizing data collection practices and increasing certain types of data collection, there are increased opportunities to perform comparative analysis. For example, Measures for Justice (MFJ) designs tools to assess the comparative performance of criminal justice system across jurisdictions; the goal is to aggregate data from local criminal justice systems to get the big picture on systematic inefficiencies and inequalities. 25 For MJF, the absence of empirical data with which to compare the performances of each part of the system—including prosecutors, administrators, defense attorneys, etc.—is a major barrier to identifying nodes in the network that could benefit most from intervention. MFJ is using big data to create transparency, such that anyone, rather than an expert, can look at the data and identify widespread problems; and policymakers can see more easily envision roadmaps for change. 26 Beyond their enforcement capacities, law enforcement can also use inferential models to protect vulnerable groups. For instance, in the finance sector, banks have started inferring patterns of human trafficking from the financial transactions they process, and sharing that information with law enforcement. 27 JP Morgan Chase reasoned that since both human trafficking and money laundering involve hidden transactions, they can apply analytics technology to detect both kinds of criminal behavior. Palantir Technologies and the National Center for Missing and Exploited Children work together to analyze persons, businesses, and websites that potentially involve human trafficking and automate the identification of red flags. 28 The same mobile technologies that generate ‘big’ data and facilitate trafficking can also inform law enforcement strategies to combat it and to support the civil rights of vulnerable people. 29 Data & Civil Rights :: http://www.datacivilrights.org/ 6 Questions for Data, Civil Rights, and Criminal Justice 1. Where is anti-discrimination law unable to meet the challenges presented by data mining and networked data outputs? 2. Where do automated systems create efficiencies, and what are the potential costs and benefits of these efficiencies for marginalized communities? 3. How can data analytics be used to correct historical biases in the criminal justice system, minimize inequities, or to reduce high rates of incarcerations overall? 4. How can data analytics be used to measure which variables lead to the most or least discriminatory impact on marginalized communities? 5. What policies or tools can we have in place to remedy errors, or to hold data-driven decision-making processes accountable? How can individuals confront flawed algorithmic determinations? 6. How do we identify which part of an algorithmic calculation leads to a discriminatory result? What are the technical and policy issues at play? 7. What incentives are driving the development of different technologies? How do we evaluate and debate these incentives before they are built into the tools that are deployed? 8. If we are going to make changes to our criminal justice system using big data techniques, what should we optimize for? a. Should we aim to reduce incarceration rates overall? b. Can data analytics help us identify new variables that have a maximum impact on racial and minority disparities in criminal justice? 9. Should we eliminate the use of certain factors altogether (such as education, socio- economic status or outside information like social media information) or conversely only use certain factors (like type of offense) in making determinations? 1 Bureau of Justice Statistics, Prisoners In 2012: Trends in Admissions and Releases, 1991-2012, by E. Ann Carson and Daniela Golinelli, NCJ 243920 (Washington, D.C., 2013), 12-13. See table 10. 2 U.S. Sentencing Commission, Annual Report, USSCFY12, (Washington, D.C., 2013), Table 34. http://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2012/Table34.pdf. 3 U.S. Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, (Washington, D.C., 2011). http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and- reports/mandatory-minimum-penalties/20111031-rtc-pdf/Executive_Summary.pdf. 4 Massimo Calabresi, “Statistics Can Predict Criminal Risk. Can They Deliver Equal Justice?”, TIME, July 31, 2014. http://time.com/3061893/holder-to-oppose-data-driven-sentencing/. 5 Oscar Gandy, Coming to Terms with Chance: Engaging Rational Discrimination and Cumulative Disadvantage (Burlington, VT: Ashgate, 2009). 6 Solon Barocas and Andrew D. Selbst, “Big Data's Disparate Impact,” SSRN, October 19, 2014, 8. http://ssrn.com/abstract=2477899. 7 Frank Pasquale, The Black Box Society (Cambridge, MA: Harvard University Press, 2015), 48. 8 The Sentencing Project, “Uneven Justice: State Rates of Incarceration By Race and Ethnicity,” by Marc Mauer and Ryan S. King (Washington, D.C., 2007), 6. http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceandethnicity.pdf. http://www.ussc.gov/sites/default/files/pdf/research-%20and-publications/annual-reports-and-%20sourcebooks/2012/Table34.pdf http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/20111031-rtc-pdf/Executive_Summary.pdf http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/20111031-rtc-pdf/Executive_Summary.pdf http://time.com/3061893/holder-to-oppose-data-driven-sentencing/ http://ssrn.com/abstract=2477899 http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceandethnicity.pdf Data & Civil Rights :: http://www.datacivilrights.org/ 7 9 “Center on Sentencing and Corrections,” Vera Institute of Justice, accessed September 9, 2014, http://www.vera.org/centers/center-sentencing-and-corrections?qt-centers_sentencing_and=8&qt- centers_center_on_sentencing_and=8#qt-centers_center_on_sentencing_and. 10 Barocas and Selbst, “Big Data”, 10. 11 Carrie Johnson, “After Discrimination Finding, Jury’s Out On Memphis Juvenile Courts,” NPR, August 6, 2014. http://www.npr.org/2014/08/06/338086226/after-discrimination-finding-jurys-out-on-memphis-juvenile-courts. 12 Ali Winston, “Privacy, Accuracy Concerns as License-Plate Readers Expand,” SFGate, June 17, 2014. http://www.sfgate.com/crime/article/Privacy-accuracy-concerns-as-license-plate-5557429.php. 13 “What is CompStat?”, University of Maryland, accessed October 19, 2014. http://www.compstat.umd.edu/what_is_cs.php. 14 Steven D. Levitt, “Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not,” Journal of Economic Perspectives 18, 1 (Winter 2004): 163-190. http://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf 15 Leighton Walter Kille, “Hot spots policing and crime prevention strategies: Ongoing research,” Journalist’s Resource, July 11, 2013. http://journalistsresource.org/studies/government/criminal-justice/hot-spot-policing-strategies#. 16 Zach Friend, “Predictive Policing: Using Technology to Reduce Crime,” FBI Law Enforcement Bulletin, April 9, 2013. http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2013/April/predictive-policing-using- technology-to-reduce-crime. 17 Monte Reel, “Chronicle of a Death Foretold,” Harper’s Magazine, March, 2014. http://harpers.org/archive/2014/03/chronicle-of-a-death-foretold-2/. 18 Whet Moser, “The Small Social Networks at the Heart of Chicago Violence,” Chicago Magazine, December 9, 2013. http://www.chicagomag.com/city-life/December-2013/The-Small-Social-Networks-at-the-Heart-of-Chicago-Violence/. 19 Matt Stroud, “The Minority Report: Chicago’s New Police Computer Predicts Crimes, but Is It Racist?”, The Verge, February 19, 2014. http://www.theverge.com/2014/2/19/5419854/the-minority-report-this-computer-predicts-crime-but- is-it-racist. 20 Sonja B. Starr, “Sentencing, by the Numbers,” The New York Times, August 10, 2014. http://www.nytimes.com/2014/08/11/opinion/sentencing-by-the-numbers.html. 21 Barocas and Selbst, “Big Data,” 23. 22 Anne Milgram, “To Minimize Injustice, Use Big Data,” Laura and John Arnold Foundation, August 20, 2014. http://www.arnoldfoundation.org/news/minimize-injustice-use-big-data. 23 Milgram, “Minimize Injustice.” 24 Kimberly Johnson, “Driving While Black; Carolina City Crafts Racial Awareness Policy Policy,” Al Jazeera America, September 9, 2014. http://america.aljazeera.com/articles/2014/9/9/racial-profilingnorthcarolina.html; see also: North Carolina General Statute 114-10.01. http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_114/GS_114-10.01.html. 25 “Our Mission and Approach,” Measures of Justice, accessed October 13, 2014. http://measuresforjustice.org/who-we- are/mission/. 26 “The Measures,” Measures of Justice, accessed October 13, 2014. http://measuresforjustice.org/know-more/the- measures. 27 Organization for Security and Co-operation in Europe, “Expert Seminar on Leveraging Anti-Money Laundering Regimes to Combat Human Trafficking,” (conference, Vienna, Austria, October 3-4, 2011). http://www.osce.org/secretariat/107665. 28 Judge Herbert B. Nixon, Jr., “Human Trafficking and the Internet* (*and Other Technologies, too),” The Judge’s Journal 52, 1. (2013). http://www.americanbar.org/publications/judges_journal/2013/winter/human_trafficking_and_internet_and_other_techno logies_too.html. 29 Mark Latonero, et al. “The Rise of Mobile and the Diffusion of Technology-Facilitated Tracking,” Technology and Human Trafficking. (Los Angeles, CA: USC Annenberg Center on Communication, Leadership & Policy, 2012). https://technologyandtrafficking.usc.edu/files/2012/11/HumanTrafficking2012_Nov12.pdf. http://www.vera.org/centers/center-sentencing-and-corrections?qt-centers_sentencing_and=8&qt-centers_center_on_sentencing_and=8#qt-centers_center_on_sentencing_and http://www.vera.org/centers/center-sentencing-and-corrections?qt-centers_sentencing_and=8&qt-centers_center_on_sentencing_and=8#qt-centers_center_on_sentencing_and http://www.npr.org/2014/08/06/338086226/after-discrimination-finding-jurys-out-on-memphis-juvenile-courts http://www.sfgate.com/crime/article/Privacy-accuracy-concerns-as-license-plate-5557429.php http://www.compstat.umd.edu/what_is_cs.php http://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf http://journalistsresource.org/studies/government/criminal-justice/hot-spot-policing-strategies http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2013/April/predictive-policing-using-technology-to-reduce-crime http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2013/April/predictive-policing-using-technology-to-reduce-crime http://harpers.org/archive/2014/03/chronicle-of-a-death-foretold-2/ http://www.chicagomag.com/city-life/December-2013/The-Small-Social-Networks-at-the-Heart-of-Chicago-Violence/ http://www.theverge.com/2014/2/19/5419854/the-minority-report-this-computer-predicts-crime-but-is-it-racist http://www.theverge.com/2014/2/19/5419854/the-minority-report-this-computer-predicts-crime-but-is-it-racist http://www.nytimes.com/2014/08/11/opinion/sentencing-by-the-numbers.html http://www.arnoldfoundation.org/news/minimize-injustice-use-big-data http://america.aljazeera.com/articles/2014/9/9/racial-profilingnorthcarolina.html http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_114/GS_114-10.01.html http://measuresforjustice.org/know-more/the-measures http://measuresforjustice.org/know-more/the-measures http://www.osce.org/secretariat/107665 http://www.americanbar.org/publications/judges_journal/2013/winter/human_trafficking_and_internet_and_other_technologies_too.html http://www.americanbar.org/publications/judges_journal/2013/winter/human_trafficking_and_internet_and_other_technologies_too.html https://technologyandtrafficking.usc.edu/files/2012/11/HumanTrafficking2012_Nov12.pdf 
work_nnwg7gwko5cfbdpaz4v6jw5cr4	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221740998 Params is empty 221740998 exception Params is empty 2021/04/06-03:20:40 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221740998 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:40 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_no26e5o6frbotpqxcth57cffyq	----	Correspondence Climate justice more vital than democracy Decision-making based on social-justice principles could be more effective than democratic efforts against climate change (see N. Stehr Nature 525, 449–450; 2015). Democratic decision-making involves multiple stakeholders, and democracy emphasizes the mutual roles of actors: all preferences are treated as equal. In many regions of the world, however, the results of democratic choices can be strongly influenced by power relations and inequitable social arrangements, owing to differences in economic development, access to technology and knowledge. Elites may use democratic processes to entrench their status or encroach on other social goals (B. Sovacool et al. Nature Clim. Change 5, 616–618; 2015). This can lead to incremental or undesirable results, which might explain why large democratic nations such as the United States continue to oppose progressive climate legislation. In our view, sound climate and energy planning should not treat all stakeholders in the same way. Instead, preferences and roles should be weighted to consider criteria related to equity, due process, ethics and other justice principles. This would ensure that stakeholder discussions and resulting policies serve to eradicate, rather than exacerbate, socio-economic vulnerability to a changing climate. Jingzheng Ren, Michael Evan Goodsite University of Southern Denmark, Odense, Denmark. Benjamin K. Sovacool Aarhus University, Herning, Denmark. benjaminso@auhe.au.dk Some rules for behavioural science US President Barack Obama’s executive order of 15 September, ‘Using behavioral science insights to better serve the American people’, is intended to strengthen the policymaking process. To prevent the Obama administration from falling victim to agendas backed by pseudoscience, I suggest that it should consider only studies that abide by certain established rules . The rules were instituted in behavioural and experimental economics research in universities, largely in response to scientific misconduct by governments and academics. They stipulate that an independent ethics committee must review research involving human subjects before the start of any experiment; that participants should first give their informed consent; and that they should receive appropriate remuneration to ensure that their decisions reflect genuine preferences. Moreover, deception should never be used in experimental design or in the process of scientific enquiry. In the interests of scientific transparency, studies that lead to policy change should be peer reviewed and experimental design details and data made publicly available. Such guidelines would help to ensure that studies are relevant, rigorous, ethical and legal. They would also provide a means to replicate and test studies for bias, efficacy and accuracy. Jason A. Aimone Baylor University, Waco, Texas, USA. jason_aimone@baylor.edu Restore vaccine trust in Japan Vaccination coverage for human papilloma virus (HPV) in Japan has plummeted following unconfirmed media reports of severe adverse reactions such as chronic pain and cognitive decline (see S. J. B. Hanley et al. Lancet 385, 2571; 2015). In response, and presumably to avoid lawsuits, the government has suspended its proactive vaccination recommendation. Several scandals in the past few decades have fuelled the Japanese public’s scepticism. These include health hazards associated with some drugs and vaccines, widely publicized cases of misconduct among researchers, and questionable connections between medical professionals and pharmaceutical companies (see T. Tanimoto et al. Nature 512, 371; 2014). At the heart of the debate is Japan’s compensation scheme for vaccine injury, which depends on a causal relationship being confirmed by the government. Claimants may also seek further compensation through private litigation against the government. In most countries, claimants must pursue one scheme or the other, not both. In our view, the government should introduce a no-fault compensation system, following the lead of other countries, including the United States and Scandinavian nations (see C. Looker and H. Kelly Bull. World Health Organ. 89, 371–378; 2011). Exemption from liability would make for a fairer and more transparent judgement in policymaking and Interdisciplinarity: topping the charts We offer ideas on why India ranks highest and Brazil fifth — above the United States and Europe — in terms of the numbers of interdisciplinary research papers that they publish in Elsevier journals (see Nature 525, 306–307; 2015). India’s researchers are surrounded by dynamic ecological, social and economic problems. They therefore naturally turn to solution- oriented research that is informed by the complexity of their environment. Although interdisciplinary researchers still struggle for acceptance in India’s traditional, rigidly structured university departments, new universities with centralized programmes are offering fresh and tempting perspectives. In Brazil, the number of interdisciplinary graduate programmes is growing twice as fast as the number of disciplinary courses. The country’s national accreditation system changed Interdisciplinarity: two more principles As scientists in a sustainable- development research institute, our experience has demonstrated two further principles that are crucial for successful 15 years ago, when many of its master’s and PhD programmes failed to fit any of their set 46 disciplinary slots. Marcel Bursztyn University of Brasίlia, Brazil. Seema Purushothaman Azim Premji University, Bangalore, India. marcel@unb.br pave the way for a new Japanese vaccination programme in which public trust is restored. Tetsuya Tanimoto, Eiji Kusumi Navitas Clinic, Tokyo, Japan. Claire Leppold University of Edinburgh, UK. tetanimot@yahoo.co.jp interdisciplinary research (see R. R. Brown et al. Nature 525, 315–317; 2015). First, solving real-world problems requires integration of the social and biophysical realms. Key to this is the explicit consideration of differences in scale. For example, water governance has a typical time horizon of years, yet hydrological processes operate on timescales from seconds to millennia. Second, a critical mass of interdisciplinary scholars is necessary to become a credible counterpart for disciplinary researchers and to catalyse progress. Our institute employs 150 interdisciplinary researchers, who engage much greater numbers of single-discipline researchers in interdisciplinary projects. Martin J. Wassen, Marko P. Hekkert Utrecht University, the Netherlands. m.j.wassen@uu.nl 1 5 O C T O B E R 2 0 1 5 | V O L 5 2 6 | N A T U R E | 3 2 3 © 2015 Macmillan Publishers Limited. All rights reserved Restore vaccine trust in Japan 
work_nqr275hyqvemtn7qtcdgahocum	----	Education Deform and Social Justice Unionism Peter Brogan Isabel Nuñez, Gregory Michie, and Pamela Konkol, Worth Striking For: Why Education Policy is Every Teacher’s Concern (Lessons from Chicago) (New York: Teachers College Press, 2015) Alexandra Bradbury, Mark Brenner, Jenny Brown, Jane Slaughter, and Samantha Winslow. How to Jump-Start Your Union: Lessons from the Chicago Teachers (Detroit: Labor Notes, 2014) Micah Uetricht, Strike for America: Chicago Teachers Against Austerity (London and New York: Verso, 2014) “To win rudimentary justice, women had to battle with brain, with wit, and sometimes even with force,” observes Margaret Haley, the pioneer of teacher unionism in Chicago and the United States. “If you happened to be born,” Haley continues, “wanting freedom for yourself, for your group, for people at large, you had to fight for it – and you had to fight hard.”1 Haley cap- tures here the fighting spirit of working-class struggle that has come to define the revitalized Chicago Teachers Union (ctu) under direction of the Caucus of Rank-and-File Educators (core), which won power in the union in 2010. And as can be seen in the week-long teachers’ strike in Seattle last September and the amazing work done in winning a new contract through grassroots organizing by education workers in Los Angeles, this mode of social justice union praxis – combining a radical vision with mass action – is radiating out to other cities across the nation. Teachers in Chicago and elsewhere in urban America are on the frontlines of a war over the future of public education. On one side, we have the corporate- sponsored neoliberal education “reform” movement that attributes all of the 1. Quoted in Dana Goldstein, The Teacher Wars: A History of America’s Most Embattled Profession (New York: Doubleday, 2014). review essay / note critique Peter Brogan, “Education Deform and Social Justice Unionism,” Labour/Le Travail 77 (Spring 2016): 225–241. 226 / l abour/le tr avail 77 nation’s failings – poverty, inequality, and a decline in economic competitive- ness in the world economy – to a crisis in public education, a crisis most acute in US cities. On the other side, we have those whom the reformers view as the main culprits for this crisis, allegedly bad teachers and the unions that protect them. In September 2012, for the first time since 1987, Chicago teachers hit the streets against neoliberal reforms and austerity, going on strike for seven days. In terms of its mass character across the city, the popular support the union enjoyed, and the extent to which it resonated with workers in and beyond Chicago, it is no exaggeration to say that this is the most important strike to occur in the United States of the 21st century. This strike was the culmination of years of struggle by ordinary public school teachers and community organi- zations across Chicago, who have, since the mid-2000s, been fighting against the corporate-backed program whose aim is to dismantle the public school system and replace it with a largely privatized system governed according to a corporate model. The remaking of public schooling in this manner is a central component of neoliberal urban development. The movement behind this corporate takeover of education, often misiden- tified in the media as an “education reform movement,” is about expanding capitalist profit by turning what were once universal public institutions, his- torically tasked with the responsibility for producing a nation’s citizenry and its labour force, over to corporate profiteers of a new booming industry. This movement is more aptly described by teacher activists as “corporate deform.” The deformers typically deploy a discourse of choice or civil rights as a way to capture a piece of the more than $500 billion that the federal government spends on the K–12 education sector in the United States. This corporate- backed agenda is a core component of the neoliberal restructuring of political, economic, and social life more generally that has been driven by an amalgam of right-wing and neoliberal think tanks, both major political parties in the United States, private charter school operators, and education management organizations, as well as global economic governance institutions like the World Bank and the International Monetary Fund. The 2012 strike, which has rightly been held up in the three books under review as a successful model of the kind of action unions need to take to beat back corporate power and austerity policies, would have been impossible if not for the efforts of a relatively small group of union dissidents who, in 2008, built a new oppositional group called core. Operating with one foot inside the union and one outside of it, core has become a beacon of hope for rank-and- file union activists in both the United States and Canada. Understanding the Neoliberal Assault on Public Education According to the corporate reformers, teachers’ unions are only con- cerned with pursuing the narrow economic interests of their members at the cost of the children entrusted to their care and the taxpayers who fund public education deform and social justice unionism / 227 schools. The billionaire-backed reform movement has been on the rise since the 1983 publication of a report called A Nation at Risk. In this narrative, teacher unions are posited as the most powerful political force obstructing a supposedly grassroots, parent-led movement for school choice and account- ability.2 And while what is happening in the United States is extreme in many respects, the fight over the future of public education is connected to a global struggle over what education should look like in the 21st century. As educa- tion scholar Pedro Noguera puts it in his foreword to Worth Striking For, “The ultimate goal of the current reform efforts around education policy appears to be the end to our public system of schooling, whether motivated by true faith in the market or by desire for new profit-making opportunities.”3 Although I agree with this contention, I would add that such efforts are part of the wider process of neoliberalism and the proliferation of neoliberal poli- cies, of “high stakes testing” and “accountability” that we have witnessed in recent decades, and are deeply related to the reality that many poor, working class, and people of colour have been historically underserved by America’s public schools. Thus, while poor communities are desperate for change in the education their children receive, this has prompted a sense of urgency among policy makers – which corporate deformers have taken advantage of – to experiment with policies in education such as shifting from democratically elected school boards to mayoral control, and to an expansion of “innovative” charter schools, which receive public monies but are generally not subject to any kind of democratic oversight. Unfortunately, instead of leading to better educational outcomes for those students who need the most improvement, these policies have resulted in increased chaos in schools for students and teachers alike. We have also witnessed a reversal of the desegregation that had taken place as a result of the landmark Supreme Court decision of Brown v. Board of Education in 1954, which put an end to de jure segregation based on race. Indeed, shutting down neighbourhood schools has been an essential com- ponent of the corporate deform agenda in education, which has resulted in an expansion of privatization vis-à-vis their replacement with charter schools alongside a vast expansion of standardized testing, which has resulted in a windfall of profits for companies like Pearson and McGraw-Hill. School 2. A number of books have been published in recent years that make this argument, including Steven Brill’s Class Warfare: Inside the Fight to Fix America’s School (New York: Simon and Schuster, 2011). These views can also been seen in the widely acclaimed documentary Waiting for Superman (2010) and the more recent Hollywood dramatization starring Viola Davis and Maggie Gyllenhaal, Won’t Back Down (2012). Newsweek published a cover story in 2010 entitled, “The Key to Saving American Education,” which depicted a blackboard, with a single phrase chalked over and over, “We must fire bad teachers.” 3. Isabel Nuñez, Gregory Michie, and Pamela Konkol, Worth Striking For: Why Education Policy is Every Teacher’s Concern (Lessons from Chicago) (New York: Teachers College Press, 2015), xv. 228 / l abour/le tr avail 77 closures and turnarounds have had a disastrous impact on already devastated African American and Latino poor and working-class neighbourhoods. These policies are part of the wider neoliberal project, which is not simply about expanding capitalist accumulation and dismantling teacher unions, but is also a racial containment strategy, the objective of which is to control what is viewed by political and economic elites as a disposable surplus population. Thus, instead of a democratic public school system, where students from different backgrounds come together, we have not only more unequal school- ing, but also a dangerous setup that is authoritarian and dehumanizing to non-white children and their teachers who are then subject to surveillance and discipline. For many students, these educational environments often lead to less safe conditions. In this context, corporate reformers contend that what is needed to address the failings of public schooling today is more discipline and punitive measures for students who do not perform well and more standardized curriculum with “objective” instruments to measure student learning – and teacher perfor- mance – in order to develop the best practices to improve schools. Teachers and youth, corporate reformers tell us, need to be held accountable for their own failure to perform according to increasingly narrow metrics of success. When a student scores poorly on state mandated tests it is supposedly because of some kind of behavioural, cognitive, cultural, and/or linguistic deficit.4 Students, and by extension their parents, their communities, and their teach- ers, must be missing the appropriate skills or knowledge. Following this logic, good teachers are those who use best practices to effectively fix the deficit by providing the correct mix of knowledge and skills and thereby improving test scores which are posited as the metric of success. Even the use of terms like “best practice” indicates the extent to which neoclassical economic thinking has become dominant within education policy discourse. Thankfully, the three books under review here thoroughly and powerfully dismantle the reigning dogma that is corporate education reform, which is the status quo in school districts across the United States. Drawing on a moun- tain of high quality research in education policy and practice, which corporate reformers persistently ignore, the authors demonstrate, for instance, how inef- fective the much ballyhooed “value added” metrics tied to annual improvements on state administered standardized tests are in evaluating (read disciplining) teachers or in evaluating students improvement. These books narrate the ways in which Chicago teachers conducted and drew on the best research in educa- tion to completely and dramatically reframe the public discussion on what is wrong with public education, but also providing some well-researched ideas for alternative reforms of the school system. Indeed, this is why, when asked 4. Lisa Delpit, Other People’s Children (New York: New Press, 1995). education deform and social justice unionism / 229 who they trust more, Chicagoans were three times more likely to trust and support Chicago teachers than the Rahm Emanuel administration5. While they tread much of the same ground, each book contributes a dif- ferent piece of the puzzle to how teachers might become a more empowered group of workers so that they no longer feel helpless in the face of the corporate onslaught against their profession and against public education. These books go a long way in helping us understand how and why Chicago teachers, along with their mayor and district leaders, now understand what the union can accomplish in terms of leading a city-wide resistance for education justice, a struggle which has come to be widely supported by the public. And as a result, teachers – along with many others both in and outside of Chicago – have rediscovered the power of a social justice or social movement unionism that builds power across the working class through organizing in workplaces and communities. Indeed, one would have a difficult time finding an article or book published in recent years about the plight of organized labour or the possibilities of a revitalized left in Canada or the US that does not mention the shining example of the Chicago teachers. Like the practices of some of the country’s major teacher union locals in the US, scholarship on teacher unionism has also been undergoing a renaissance in recent years, with historians moving beyond the examination of why and how teachers formed unions or professional association, to include the rivalry and parallel historical development of the nation’s two national teachers’ orga- nization, the National Education Association (nea) and the aft. While contemporary historical scholarship on US teachers’ unions has remained focused on the large urban teachers unions in New York City, Newark, and Chicago, it has also plunged the depths of the archives and life history interviews with teacher union activists to uncover the complicated relationships between teachers and African American and Latino communi- ties; between teachers’ power and civil rights.6 In many ways these works can be seen as interrogating issues raised in Marjorie Murphy’s agenda setting work, BlackBoard Unions, such as the dual professional-worker identity of teachers and how it can both hinder and facilitate their activism, or the racial divide between teachers and parents.7 Many of these recent studies focus on the relationship between Black power, civil rights, and teachers’ power in different urban locales, providing us with a great deal of insight for thinking about possible ways to both study the history of teachers and their unions, as well as with profound lessons to contemporary 5. Bill Ruthhart and Juan Perez Jr., “Teacher Union has Triple the Public Support of Emanuel,” Chicago Tribune, 4 February 2016. 6. Jonna Perrillo, Uncivil Rights: Teachers, Unions, and Race in the Battle for School Equity (Chicago: University of Chicago Press, 2012). 7. Marjorie Murphy, BlackBoard Unions: The aft and the nea, 1900–1989 (Ithaca: Cornell University Press, 1990). 230 / l abour/le tr avail 77 teacher unionists. For example, Steve Golin’s exploration of the Newark teach- ers’ strikes of 1970 and 1971 offers valuable insights into transformations of political subjectivities and difference that gender can make for teachers who go to jail for engaging in collective action.8 Clarence Taylor’s Reds at the Blackboard provides a refreshing and rich examination of the Communist- led New York Teachers Union’s deferred dream of establishing social justice teacher unionism in the largest and most influential school district in the country. Both books provide new ways of thinking about the complicated and evolving historical relationship between teachers as professionals, race and racism in US cities, and the dramatic shifts in what W.E.B Debois called the colour line within and between public schools. Whether it was questions of mass action (often in defiance of the law), the dual nature of a teacher’s identity of professional and worker, or the need for a more radical class and anti-racist teacher unionism, these works of historical scholarship speak to many of the most crucial issues that teacher unionists need to address today. Thus, it is useful to view the three books being reviewed here as part of this emerging body of scholarship on teacher unions and the struggle for a new kind of social justice or social movement unionism. This work has emerged at a time when, as Bradbury, et al., observe in How to Jump-Start Your Union, we are witnessing, “the most far-reaching changes to teachers’ working conditions and public standing” in the previous three decades. These changes include: the elimination or weakening of job security (“tenure”); “tying teachers’ evalua- tions to student performance on standardized tests; and instituting merit pay, also often linked to standardized tests scores.”9 Indeed, when we turn to more recent decades of education reform and what Dana Goldstein aptly calls “teacher wars,”10 it is clear that, contrary to the claims of corporate reformers, the voices of teachers have been missing from the debates on what direction reforms should take for public schooling in the 21st century. As Noguera wisely observes, this is “not because teachers don’t have opinions on these issues but simply because they typically don’t have access to the megaphone, platform, or airwaves to be heard.”11 While teachers’ unions do have these resources they have not been effectively using them, with local exceptions like the ctu or United Teachers of Los Angeles. Without frontline educators working with critical researchers to articulate well-developed arguments and ideas for a more bottom up, humane reform, we have been left to suffer with education policy being dictated from on high 8. Steve Golin, The Newark Teachers Strike: Hopes on the Line (New Brunswick: Rutgers University Press, 2002). 9. Alexandra Bradbury, Mark Brenner, Jenny Brown, Jane Slaughter, and Samantha Winslow, How to Jump-Start Your Union: Lessons from the Chicago Teachers (Detroit: Labor Notes, 2014), 9. 10. Goldstein, The Teacher Wars. 11. Pedro Noguera, foreword to Nuñez, Michie, and Konkol, Worth Striking For, xiii. education deform and social justice unionism / 231 by people, like Bill Gates and the Walton Foundation, who know nothing about how to educate children. And that is kind of the point. For if teachers are the problem, and business is the creative innovator that has done so many great things in other realms of society, then business is where the solutions for how to “fix” schools will be, not with teachers, who supposedly only care about their own interests and not that of their students. As Noguera rightly contends, “In the United States today, those who know the least about educa- tion have the most to say, and those who know the most have almost nothing to say at all.”12 And although corporate deformers are so dominant because of their seemingly unlimited funds and access to media, a serious progressive opposition movement made up of teachers and parents has emerged to chal- lenge this dominant deform agenda in public education, in large part due to the activism of rank-and-file educators fighting to completely transform their unions and associations. All of this is to say that education is different from other areas of work in important ways; teachers are well placed to both reproduce structures of oppression and exploitation and to disrupt them. While teachers are certainly workers and professionals (an identity that has served historically to both con- strain and enable militancy and collective action) it is vital to acknowledge that they play a special function within our contemporary capitalist world because their job is the development of young people. These three books all examine the Chicago teachers’ experience of strug- gling against the corporate education deform agenda through their union, the ctu. While there is a good deal of overlap in the narratives of union trans- formation of the ctu, each book has unique, yet complementary objectives and emphasizes different parts of the story. Academics who study labour, and activists looking to build a revitalized working-class movement to fight for education justice and broader issues of social justice, would benefit from reading these insightful works on the Chicago experience. Each effectively elucidates some of the key lessons from the ctu, particularly as core has transformed it since 2010. Beyond simply taking over the union so as to better protect the union’s members, the Chicago teachers’ experience demonstrates the necessity of building a movement inside and outside of your union. While the books all deconstruct the neoliberal war on education and how it has affected teachers in Chicago, they offer lessons not only for teachers and other education workers looking to fight back, but also provide valuable insights on how to organize in your workplace and other community insti- tutions. Put another way, all three books, but especially How To Jump-Start Your Union, offer guidance on how Chicago teachers went about constructing what Alan Sears calls an “infrastructure of dissent,”13 which is a network of 12. Pedro Noguera, foreword to Nuñez, Michie, and Konkol, Worth Striking For, xiii. 13. Alan Sears, The Next New Left: A History of the Future (Halifax and Winnipeg: Fernwood, 2014). 232 / l abour/le tr avail 77 community and workplace institutions (from union halls to bookshops, bars, and churches) that workers use to develop the culture and spaces necessary to fight for improvements in their schools, cities, and world. Each book, in its own style, shows us how, through grassroots organizing in schools, workplace, and across different neighbourhoods, the ctu was able to become the leading institution in Chicago fighting for education justice. In the process, Chicago teachers have provided workers in and beyond Chicago a lesson in the power of collective action along with building working-class capacities across the city for further struggles. As Chicago history teacher and union activist Jen Johnson insists, the 2012 strike effectively woke up the city and the nation to the plight of poor, working-class students of colour and their teachers. Since the Chicago strike there has been a wave of other teacher actions across the country, including a proliferation of rank-and-file dissident caucuses, from Los Angeles to Philadelphia. The first book to share these valuable experiences was Striking for America by Micah Uetricht. In this pithy and accessible book the author provides a passionate, well-researched, and highly engaging account of the 2012 Chicago teachers strike – a strike that has since become a central point of inspiration and hope for workers across the United States and Canada, akin to what the uprising in Madison, Wisconsin and Occupy Wall Street had been before it. Indeed, as Uetricht reveals, many of the activists that would later become leaders in the ctu had been inspired, if not directly involved, in one of these movements. Drawing on a wide range of primary and secondary sources, from interviews with teachers and parents and the author’s own interactions with Chicagoans during the strike to media reports and scholarship on education policy and urban neoliberalism, Striking for America provides us with the backstory of how a small group of union dissidents successfully organized to transform their union and build a vibrant movement against corporate edu- cation deform. Uetricht chronicles the twists and turns taking place within the ctu, keenly dissecting the micropolitics among different groups within the union in Chicago and in its parent union, the aft led currently by Randi Weingarten. Uetricht correctly sees the national union as a representative of the predominant and, unfortunately, less militant, democratic teacher union- ism – one that is more collaborationist than confrontational in the face of the corporate assault on teachers, their unions, and public education more generally. Striking for America is organized in three parts, with an introductory chapter that situates the strike and its aftermath in its historical and geo- graphical context of Chicago, providing a useful overview, and searing indictment, of the policies and the actors that constitute the corporate educa- tion policy agenda as well as the weak, often complicit, response offered by the two national teachers’ federations, aft and the nea. This sets the stage with a stark contrast between the core and the ctu’s head, Karen Lewis and Weingarten’s cooperative. education deform and social justice unionism / 233 In the second part of the book Uetricht proceeds to navigate the cir- cumstances that led a small group of dissident Chicago teachers and paraprofessionals to get together to create a group – the forerunner of core – to challenge the once feisty, militant, and influential ctu. It emerged at first simply to try and do the organizing that their union leadership refused to do, in the hopes that this would provoke them into action. That is, core members wanted to see their union get into the fight against school closures and take a stand against the education policies that were making life miserable for teach- ers, students and parents in Chicago. Of the three books, Strike for America and How to Jump-Start Your Union provide the most probing account of how core went from a small opposition caucus in 2008, working with mostly African American and Latino commu- nity groups to stop school closures to eventually winning the elected leadership of the 26,000 member ctu in 2010. While a majority of ctu members would have likely been fine with electing a more competent new leadership to take over and do a better job in defending their interests, core members (both in and out of elected leadership and staff ) pushed forward with a program of total union transformation – a transformation that placed membership control, union democracy, and a broader vision of social justice at the centre of the union’s mission. These books chronicle the radical changes to union praxis that have been made by core since 2010, which made it possible for the ctu to go on to wage its first strike in over 25 years, and in the process, garner huge public support and win the first major victory for organized labour in quite some time. The authors of How to Jump Start Your Union and Strike for America likewise demonstrate how core would have not been able to effect this transformation without the aid of a number of critical allies among African American and Latino neighbourhood-based organizations. Together they have been able to create one of the most vibrant urban movements for education justice to emerge in over 50 years. In narrating the battle over Chicago schools and the attempt of the small, but ever expanding contingent of its teachers and community allies to transform their union from top to bottom, these books deliver engaged, well-researched, and wide-ranging accounts of more than just a localized fight against what activists describe as education deform in one city. They elucidate the national and global dimensions and import of the fight for education justice in Chicago. These books persuasively argue that the ctu under core’s leadership is just as important of a struggle over a different kind of trade unionism, both for teach- ers and all other workers. Whether it is described as social justice or social movement unionism, at the heart of this alternative model is the conviction that any strategy for labour’s revitalization needs to be deeply democratic, membership-driven, and one that engages in a mix of old and new tactics in a form of creative militancy that is not afraid of taking risks or challenging its traditional allies in the Democratic Party. 234 / l abour/le tr avail 77 As someone who shared many of the same experiences that Uetricht chron- icles, including the joyous culture of solidarity that electrified Chicago, at least for a brief time during the strike, I can say with confidence that in Striking For America Uetricht effectively captures what it felt like to be in the fight for edu- cation justice and in solidarity with the Chicago teachers. His vivid description of the lively, loud, and liberating picket lines that ran from 6:00 a.m. to 10:30 a.m. each day of the week, followed by a massive afternoon rally or march by all of the union’s members and their supporters masterfully illustrates the power a well-organized strike of public employees can have in today’s United States. The author perceptively contrasts this with those academics and union leaders who no longer view the strike as an effective weapon in the arsenal of organized labour. The whole book could be read as a sharp rebuttal to these perspectives. Throughout his tale of rank-and-file rebellion Uetricht illustrates how Chicago teachers have been in sharp defiance of labour’s traditional politi- cal ally, the Democratic Party, which essentially runs the city of Chicago as a one-party show. And to some extent this is no doubt correct. After all, to challenge school closures and the autocratic system of mayoral control of the Chicago Public Schools meant to challenge Democratic mayor of Chicago, Rahm Emanuel, and his longtime predecessor (until 2010), Richard M. Daley. As Strike for America and the other books under review demonstrate, there is a firm bipartisan consensus on expanding neoliberal education reform and Mayor Emanuel has been a key player in an expansive network of corporate education deformers. Indeed, while Uetricht persuasively argues that unions need to continue to challenge the Democratic Party, which he rightly notes has not in practice been a champion for organized labour or working people in many decades, despite the extensive and ongoing support the Democrats continue to receive from union officials, the major weakness of his book is his overstatement of just how much the ctu and core has forged an electoral strategy independent of the Democratic Party, either with their 2012 strike or their subsequent organizing for a more socially just school system and city, which included a failed attempt to unseat Emanuel in the 2015 mayoral election. Although Uetricht takes note of the many challenges and limitations facing the ctu and organized labour more broadly, including the lack of an effective independent political strategy, neither he nor the ctu under core’s direction point to any such alternative, although their work in building a new organi- zation called the United Working Families is a clearly an expressed attempt to move towards some kind of alternative political strategy independent of the Democratic Party. While this inability to develop an independent or alternative strategy to electoral politics has been a classic, and perhaps most important problem for organized labour in the United States and many other countries, overstating just how much the ctu has broken with the failed strategy of unions hitching their fates to the Democrats, does not push the education deform and social justice unionism / 235 discussion forward. In fact, it gives us a false sense that the leadership of the ctu and its members are more fully aware of the failing of this strategy than I believe they actually are. While I found myself wishing that the author was correct on this point, my own research and experience on these matters tells me something different. Before labour might develop this needed alternative working class political strategy we need a more accurate gauge of what unions – both leaders and members – believe and do politically. This criticism is offered in a comradely spirit and should not detract from what is otherwise a sober and politically astute analysis of what the ctu has done since being taken over by core in 2010, which Uetricht explores in the final two chapters of Striking for America. Like Strike For America, How to Jump-Start Your Union contends that the 2012 strike once again showed us that the strike remains labour’s most power- ful weapon in the fight against exploitation and oppression, but to be effective in the present political and economic conjuncture, especially for public sector workers, old-fashioned strikes that aim to simply shut down production are inadequate. Indeed, as Joe Burns has compellingly argued in both of his books on reviving the strike, with the latest focused on the uniquely important dynamics of the public sector, only a different kind of union can create a dif- ferent kind of strike.14 How to Jump-Start Your Union goes beyond a simple narrative account of the 2012 strike, or an explication of the issues at the centre of the strike, although it does provide both of these things. This book sets itself the task of functioning as a nuts-and-bolts manual for how to create a rank-and-file rebellion in one’s local, similar to the famous Troublemaker’s Handbook.15 This book is thus a response to all of those teacher and union activists I have met who, upon listening to me talk about core and the ctu, inevitably ask for a playbook that they can use to transform their own unions. What is striking about How to Jump-Start Your Union is that it draws out and highlights the radical nature of core’s critique of the racism of educa- tion reform and the spatial organization of public schools in Chicago, which the ctu bravely called “educational apartheid” in their landmark report, “The Schools Chicago Students Deserve: Research-based Proposals to Strengthen Elementary and Secondary Education in the Chicago Public Schools” (2012). The authors recognize and praise how this departs from more traditional, bread-and-butter focused union reform efforts, which often collapse once they win an election. For instance, the fact that core has maintained itself as an organization with relative independence from the ctu, with one foot inside 14. Joe Burns, Reviving the Strike (Brooklyn: ig Publishing, 2011), and Strike Back: Using the Militant Tactics of Labor’s Past to Reignite Public Sector Unionism Today (Brooklyn: ig Publishing, 2014). 15. Dan LaBotz, A Troublemaker’s Handbook: How to Fight Back Where You Work –and Win! (Detroit: Labor Notes, 1991). 236 / l abour/le tr avail 77 and one outside of the union, is both novel and essential for those would-be reformers looking to emulate core’s successes in their own union. How to Jump-Start Your Union follows a similar style and format as the Troublemaker’s Handbook so that it might serve as a resource for activism. In this it differs dramatically from the other two books, even though these other works were also clearly meant to shed light on the activist practice of Chicago teachers so as to offer insight for those looking to emulate the Chicago case of union transformation. As the authors explain it they “spell out ctu’s organizing model, on tasks ranging from talking to your co-workers to building lasting community alliances to carrying out a strike vote.… Those who want to run a caucus or a contract campaign will find out how here.”16 Usefully, each chapter of How to Jump-Start your Union concludes with lessons in point form. They stress organizing with like-minded teachers through action and building alliances with community groups by treating them as equals, rather than simply asking for help or coming to them with predetermined goals. While the lessons are too many to summarize here, I cite Chapter 3’s lessons, which include: making activism more enjoyable, wel- coming for new people, and making it a place and an activity where teachers with no experience can learn how to organize. It is important to note here that the books under review are not simply triumphalist chronicles of the ctu under the leadership of core; none of them should simply be read as a manifesto of hope for union dissidents, nor a naïve ode to the power of social movement unionism as embodied by the ctu. Each book provides a sober assessment of the limitations of change in any one local union as well as the political and economic challenges that US teachers confront in the present period and each book is careful to offer a bal- anced assessment of what core and their community allies have been able to do through the union. In particular, these books offer a critical evaluation of what was won and not won as a result of the strike, as well as the fairly dismal events that have transpired since the strike’s conclusion. Among the tally here we have to include the largest shutdown of public schools in the history of the United States, with 50 schools being shuttered in 2013, predominantly, and predictably, in African American and Latino working-class communities across the west and south sides of Chicago. As such, readers are left inspired but also keenly aware of just how much work we still need to do in order to transform our unions and build the kind of working-class political movement that is necessary to not simply defend public education but to transform US society. That being said, while all three books leave us with this conclusion, none really puts it this starkly nor offers much in the way of how teachers and other workers might move beyond rank-and-file rebellion and militancy to a different kind of political movement and project for the working class. 16. Bradbury, et al., How to Jump-Start Your Union, 6. education deform and social justice unionism / 237 All three books rightfully stress just how vital it was for the ctu’s success to frame these policies as constituting a form of educational apartheid. “The teacher activists and the community activists agreed that racism and gentri- fication were behind the closings. The teachers ‘were willing to partner with neighborhood folks because that’s who they had the most in common with,’ said education organizer Jitu Brown of the Kenwood Oakland Community Organization, an early ally in these fights.”17 As I write this review a key community activist and ally of core, Jitu Brown, along with parents and other activists from the Bronzeville neighbourhood in Chicago’s South Side, have just ended a hunger strike after 33 days. The strike was carried out to demand the reopening of Dyett High School, the one neighbourhood high school in their community. The Dyett hunger strik- ers have enjoyed strong support from across the city, including from Chicago teachers. This fight is a key anti-racist and economic battle for a new school to be opened, based on a highly detailed plan that was developed by those same community members that are putting their bodies on the line right now. In one of many informative boxes that provide succinct descriptions about either the ctu, education policy, or Chicago, How to Jump-Start Your Union provides an excellent discussion of Bronzeville on the south shore of Lake Michigan, where it “was once known as ‘Black Metropolis’ and a national hub of African American culture.”18 Now it has become one of the most gentrified “communities in Chicago.” As Brown observes, this section of the city was subjected to the “Mid-South Plan,” which was a “calculated attempt to destabi- lize the neighborhood’s working class black population and replace local black schools – despite their more than adequate performance – with selective char- ters that would cater to the young professionals, many also African American, who were moving into the neighborhood.”19 Similarly to the other two books discussed, Worth Striking For: Why Education Policy is Every Teacher’s Concern (Lessons from Chicago) recounts the rise of core and the transformation of the ctu (in much less detail then the other two books). In addition, this book offers something quite a bit dif- ferent from the other two under review: Nuñez, Michie, and Konkol deftly use the 2012 strike as a frame through which to analyze the educational policy and practice issues at the heart of the strike – those issues that the ctu elaborated in their magnificent 2012 manifesto, The Schools Chicago Students Deserve (which members could breakdown for you on any given picket line as the reason why they were on strike). Because it was written by former and current teachers-turned-education-scholars, Worth Striking For does the best job of dismantling the rationale of “standards-based accountability” (high stakes testing) and other market-based policies that constitute corporate-backed 17. Bradbury, et al., How to Jump-Start Your Union, 13. 18. Bradbury, et al., How to Jump-Start Your Union, 14. 19. Bradbury, et al., How to Jump-Start Your Union, 14. 238 / l abour/le tr avail 77 education deform. They draw on the latest research to show the bankrupt nature of the educational outcomes of these policies. Although the other two books here do provide important discussion of education policy, especially with respect to an analysis of the corporate or market-oriented reforms, Worth Striking For makes the more explicit and direct case that teachers need to “make time and space for policy.”20 While all three authors have been classroom teachers, either in Chicago or Los Angeles, they each found their way to the Center for Policy Studies and Social Justice at Concordia University in Chicago. The central issues at the heart of the 2012 strike are nicely summarized: smaller classes; a better day for students, rather than simply a longer one; fair compensation; and job security, but in Worth Striking For, Nuñez et al., probe the depths of the ideas underlying each of these demands, drawing on a range of education scholarship to relate not only to the day-to-day working life of a teacher, but also how they affect students’ learning. Each of these demands is put in conversation with the broader transformations in education discussed above, and related to a discussion of how they articulate to different, often conflicting, ideas about the purpose of schooling. The authors concentrate their analysis on what they perceive to the most vital shifts to occur in edu- cation in the past decade. But in connecting these policy shifts to how they are lived and experienced by real classroom educators, including themselves, Nuñez et al., masterfully show how the issues at stake in the 2012 strike affect students and expand a richer, more socially just vision for public education. While the first chapter of Worth Striking For discusses in brief the history of the Chicago teachers’ strike, they quickly move on to interrogate the multiple ways that education has been understood in the United States. In each of the subsequent chapters, the authors grapple with a demand of Chicago teachers, exploring its relation to education policy and philosophy. In doing so this book provides a rich, rigorous, and wide-ranging analysis of what is at stake in the war over public education as it relates to the search for a democratic, egalitar- ian, and socially just society. The chapters also include individually authored vignettes which allow the authors to explore how the policy and philosophy of education discussed in the chapter has personally touched their lives as teach- ers. And, for the reader who wants more, they end each chapter with a list of suggested titles for further reading. In these later chapters the authors make important points about how recent reforms have not only hurt African American and low-income students in a disproportionate manner but also how these policies have adversely affected culturally and linguistically diverse learners, where “schools have moved away from nurturing the differences that make for a vibrant democracy.”21 Importantly, the authors relate this analysis to a deeper discussion of the 20. Nuñez, Michie, and Konkol, Worth Striking For, 2. 21. Nuñez, Michie, and Konkol, Worth Striking For, 5. education deform and social justice unionism / 239 disturbing demographic shifts in the teaching workforce, with many of the recent policies resulting in a far more white and middle class teaching force than we have seen in decades. Non-white teachers, it is not said enough, have been prime targets of corporate deform, with non-white students suffering as a result. Conclusion: Lessons for a Different Kind of Labour Movement In telling the origin story of core and how they not only pushed the union in a more militant and progressive direction, these books show the detailed ways of doing so, which include making sure parent, student, and community voices are centred alongside teachers and other school workers. There has been a major emphasis in Chicago on building school by school, community by community, or organizing and capacity building to fight locally. In this core has used the resources of the ctu to show people how to do campaigns, write press releases, and confront the school board at their own meetings: “strategies for building your movement within a school.” “They stood behind people, not in front of them,” one long time Chicago teacher observes. 22 While documenting some of the important contractual wins by the ctu in 2012, Strike for America and the other two books all narrow in on the same theme: it was the capacity building within the union and among its grassroots allies throughout the city and across the nation that was perhaps the most important victory of the 2012 strike. As the Seattle Teachers have just illus- trated in their week-long strike in 2015, which was successful in winning many key issues beyond mere wage and benefit gains, the transformation of the ctu by core has served as an important model for other union dissidents across the United States who have likewise been striving to make their unions into democratic, militant working-class vehicles of struggle and social justice. By not simply providing examples of rank-and-file reform efforts that have taken off since the 2012 strike, Uetricht usefully contrasts the experience of the ctu strike with that of school bus drivers in New York City, who themselves went on a more traditional strike later in 2012. This strike, sadly, did not seek to organize public support or to put forward a positive vision of transforming the services they provided, as was done in the 2012 report, “The School Chicago Students Deserve.” This strike failed to win a decent contract or fight off con- cessions, nor did it serve to ignite the membership of the union or the wider public. One of the most powerful lessons illuminated in all three books is the necessity of unions, and social movements more generally, for creating spaces of mass collective action that can be militant and confrontational on the one hand, and family friendly, creative, and fun on the other. In so doing, we can 22. Bradbury, et al., How to Jump-Start Your Union, 25. 240 / l abour/le tr avail 77 organize our resistance in a way that leaves participants not exhausted, or dejected and demoralized, but rather energized and ready to fight. As all of the books demonstrate, the key to making such organizational and cultural changes that allow for the development of such a movement is a combination of effective change from above (taking over the union’s executive, creating a new organizing and research department, for instance) with the cultivation of a vibrant workplace and citywide organization of rank-and-file leadership that has power over the kinds of creative actions they want to organize, including a march on the Mayor’s home during the strike. Equally pivotal to the ctu’s revitalization has been the development of their own research-based critique of existing schooling in Chicago and an alternative vision for creating a better system for school children and those whose job it is to make sure they receive a good education. As Nuñez et al., write: “If teachers do not have a voice in U.S. education policy, there may no longer be a vocation of teaching.”23 All three books make a powerful case that the United States needs a more politically engaged teach- ing force. Nuñez et al., rightly insist, “When teachers are informed about how education policy intersects with local community issues, and they are vocal in advocating the policies that best serve families, students, and schools, they can build the kind of momentum that made Chicago into, as a ctu report describes, ‘a sea of red.’”24 But, as all three books make clear, rather than relent- ing in their attack on teachers and public schools in Chicago, the corporate forces arrayed against teachers have only intensified since the 2012 strike. Carlo Fanelli and I have argued elsewhere that this is indicative of the limita- tions or inadequacies of militancy alone.25 While the ctu has been an incredible inspiration to many teachers and union dissidents in Chicago and elsewhere, as discussed above, they remain isolated within a fairly conservative labour movement in Chicago and as a result have failed to develop a more effective, different, alternative working class politics in the city. We need to ask some more probing questions of the Chicago experience than those raised in these books. If we fail to pose such challenging questions of our movements, both successes and failures, I think we do a disservice to the struggles of movement participants who are fighting for education justice, as well as to the deeper question of what it will take to build the kind of radical, transformative unions and movements needed today not only to stand up and 23. Nuñez, Michie, and Konkol, Worth Striking For, 2. 24. Nuñez, Michie, and Konkol, Worth Striking For, 9. See also Sean Noonan, Stephanie Farmer, Fran Huckaby, and Chris Poulos, “A Sea of Red: Chicago Teacher Union Members Reflect on How the Social Organizing Model of Unionism Helped Win the Union’s 2012 Contract Campaign” (Chicago: Chicago Teachers Union, 2014). 25. Carlo Fanelli and Peter Brogan, “Austerity, Labour and Social Mobilizations: Rebuilding Trade Union and Working Class Politics,” Studies in Social Justice 8, 2 (2014): 113–117. education deform and social justice unionism / 241 fight back but to push beyond the authoritarian neoliberal capitalism that workers in the United States and across the world are confronting. While we draw hope, inspiration, and lessons from the brave organizing in Chicago among teachers, parents, and community members, like the Dyett Hunger Strikers, scholars and activists need to seriously think through why we keep losing in spite of doing such amazing organizing and taking direct action to create a more egalitarian and just world. How, for example, should we understand the plight of the revitalized Chicago Teachers Union in the context of a city and state that has not seen any similar transformation across other unions? Because without wider radical transformations occurring in other unions and without the construction of a politically independent left organizing across the city of Chicago and beyond its borders, Chicago teachers and others fighting for education justice continue to fight a protracted defen- sive battle, with too few allies and too many enemies. We need to acknowledge that, as we hold up the Chicago teachers as a ray of hopeful sunshine and seek to emulate their successful transformation and organization of their union, leaders inside the ctu are themselves looking around for ideas of what to do now. They are faced with these difficult questions day in and day out, running up against the very real limitations of the uniqueness of their union as they continue to fight in a harsh, authoritarian political and economic context. More than books about one union’s transformation and its fights against the corporate assault on teachers, their unions, and public education, Worth Striking For, How to Jump-Start Your Union, and Strike for America offer many lessons for activists and scholars who have documented, lamented, and resisted the continued drift of most American and Canadian unions away from their historical mission to militantly fight for public education and a society where working people can live a decent and dignified existence. These books are beautifully written, rigorously researched and will prove useful to those looking for a hopeful yet critical assessment of what the ctu has achieved in a short span of seven years. A bilingual quarterly pub lished since 1945 by the Industrial Relations Department, Université Laval 71-1 h i v e r w i n t e r2 0 1 6 articles Amélioration ou polarisation ? Évolution de la structure et de la qualité des emplois au Québec et au Canada, 1997-2013 PAul-AndrÉ lAPointe et CAtherine BACh Supply Chain leverage and regulating health and Safety Management in Shipping dAvid wAlterS, PhiliP JAMeS, helen SAMPSon, SyAMAntAk BhAttAChAryA, ConghuA Xue And eMMA wAdSworth la pratique de la négociation basée sur les intérêts dans les processus de négociation collective : perceptions et appropriations syndicales MArC-Antonin henneBert, MArCel FAulkner et reynAld BourQue understanding the Pathways to Above- Mandatory Severance Pay when downsizing: A Qualitative Comparative Analysis of 20 Cases in France Pierre gArAudel, rAChel BeAuJolin, Florent noël And gÉrAldine SChMidt l’interaction entre facteurs organisationnels et locus de contrôle dans la prédiction de l’engagement organisationnel affectif XAvier PArent-roCheleAu, gilleS SiMArd, kAthleen Bentein et MiChel treMBlAy varieties of Capitalism: A Critique trAviS williAM FASt Culture organisationnelle, condition de l’organisation du travail et épuisement professionnel Julie deXtrAS-gAuthier et AlAin MArChAnd Revue trimestrielle bilingue publiée depuis 1945 par le Département des relations industrielles de l’Université Laval RI/IR en lIgne ri/ir est disponible en ligne sur le site erudit : www.erudit.org/revue/ri Pour un abonnement institutionnel, contacter Érudit. Pour consulter les règles de publication ou pour vous abonner, visitez notre site internet : www.riir.ulaval.ca RI/IR OnlIne ri/ir is available on line on erudit website at: www.erudit.org/revue/ri For an institutional subscription to digitalized issues, please contact erudit. visit our website for notes to contributors or to subscribe: www.riir.ulaval.ca RelatIOns IndustRIelles IndustRIal RelatIOns Pavillon J.-A.-DeSève 1025, avenue des Sciences-Humaines Bureau 3129, Université Laval Québec (Québec) Canada G1V 0A6 TéLéPHone : (418) 656-2468 CoURRIeL / e-mAIL : relat.ind@rlt.ulaval.ca www.riir.ulaval.ca 
work_nus3genrajfvlga3tt4jfltcb4	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221733150 Params is empty 221733150 exception Params is empty 2021/04/06-03:20:30 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221733150 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:30 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_nwmdutwakvgcfejtvjpdhfysoq	----	338 SCIENTIA IURIS, Londrina, v.22, n.2, p.338-341, jul.2018 DOI: 110.5433/2178-8189.2018v22n2p338 RESENHAS / REVIEWS SANDEL, Michael J. O Liberalismo e os limites da justiça. Lisboa: Fundação Calouste Gulbenkian, 2005. O Liberalismo E Os Limites Da Justiça Liberalism And The Limits Of Justice Rafael Antônio Costa1 Como citar: COSTA, Rafael Antônio. O liberalismo e os limites da justiça. Scientia Iuris, Londrina, v. 22, n. 2, p.338-341, jul. 2018. DOI: 10.5433/2178-8189.2018v22n2p338. ISSN: 2178-8189. Resumo: A presente resenha tem por finalidade apresentar a obra O Liberalismo e os limites da justiça, de Michael Sandel, que se insere no contexto da crítica comunitarista ao liberalismo deontológico de John Raws. Discorreu-se sobre os principais argumentos levantados por Sandel contra a tese defendia por Rawls da prioridade do justo em relação ao bom. Palavras-chave: Comunitarismo; Liberalismo; Justiça. Abstract: This review aims to present Michael Sandel’s book Liberalism and the limits of justice, which belongs to the context of communitarian criticism to the liberalism of John Rawls. Thus, the main arguments raised by Sandel against a defense by Rawls of the priority of the just in relation to the good were outlined. Keywords: Communitarianism; Liberalism; Justice. 1 Mestrando em Direito pela Universidade Estadual de Londrina (UEL). Especialista em Direito Constitucional em 2017 pela Universidade Estácio de Sá (UNESA). Especialista em Direito Eleitoral e Processo Eleitoral pelo Claretiano Centro Universitário, (Claretian/BAT). Graduado em Direito em 2008 pela Faculdade de Direito de Joinville (FDJ). DOI: 10.5433/2178-8189.2018v22n2p333 339 SCIENTIA IURIS, Londrina, v.22, n.2, p.338-341, jul.2018 DOI: 110.5433/2178-8189.2018v22n2p338 Michael J. Sandel (Minneapolis, 1953) é um filósofo político norte-americano, e professor de Filosofia Política na Universidade de Harvard. Dentre seus trabalhos mais conhecidos destacam-se: Liberalism and the limits of justice (1982) e Justice: what’s the right thing to do? (2009). Publicada originalmente em 1982, a obra O Liberalismo e os limites da justiça constitui uma importante representante da chamada crítica comunitarista ao liberalismo de John Rawls, que foi colega de Sandel na Universidade de Harvard. Considerada a obra-prima da John Rawls, Uma Teoria da Justiça, publicada em 1971, apresentou sua teoria da justiça como equidade, aproximando a concepção da justiça com o de igualdade, de um forma procedimental, que garantiria a maior igualdade possível mediante a eliminação do que o autor chama de “véu da ignorância”, que constituiriam os elementos preestabelecidos que colocam as pessoas em conflitos de interesses, se apoiando em princípios de justiça universais. Embora não haja muitas referências diretas à obra de Kant, os críticos apontam influência kantianas na teoria da justiça de Rawls, sobretudo no que se refere à necessidade de utilização de princípios universais em detrimento dos ideais comunitários de justiça, as quais constituiriam o chamado “véu da ignorância”. O comunitarismo, enquanto corrente teórica, surgiu na década de 1980 como crítica ao liberalismo, objetivando resgatar a importância da ideia de comunidade como elemento central do pensamento político, tendo como principais representantes Charles Taylor, Michael Sandel, Michael Walzer e Alasdair MacIntyre. Em Hegel e a sociedade moderna, de 1979, Charles Taylor deu continuidade à crítica hegeliana obra de Kant. Alasdair MacIntyre, em Depois da virtude, de 1981, propõe uma refundação da moral aristotélica, baseada em virtudes e não em Resenha 340 SCIENTIA IURIS, Londrina, v.22, n.2, p.338-341, jul.2018 DOI: 110.5433/2178-8189.2018v22n2p338 princípios universais. Michael Walzer, em As esferas da justiça, de 1983, critica a teoria da justiça de Rawls por tentar examinar praxe política da comunidade a partir de padrões abstratos e utópicos. Em O liberalismo e os limites da Justiça, Michael Sandel se dedicou a atacar a tese defendia por Rawls da prioridade do justo em relação ao bem. De acordo com Sandel, as noções de justiça, equidade e direitos individuais desempenham um papel central no liberalismo deontológico e sua fundamentação se deve, em grande parte, a Kant. Depois de situar os horizontes do liberalismo deontológico na tradição kantiana do pensamento jusfilosófico, Sandel levanta críticas contra a teoria da justiça elaborada por John Rawls. Discutindo seus aspectos mais importantes, Sandel explora os limites do liberalismo que estão por trás de sua concepção de sujeito, defendendo uma concepção mais aprofundada de comunidade do que a estampada no pensamento liberal. Para Sandel a tese central do liberalismo deontológico sustenta que a sociedade, composta por uma pluralidade de indivíduos com diferentes objetivos, interesses e valores, está melhor organizada quando se governa por princípios que não pressuponham nenhuma concepção particular de bem. Desse modo, de acordo com os liberais a definição do que é correto (justo) deve preceder a concepção de bom, vez que se tratam de categorias independentes. Sandel afirma que existem limites conceituais à ideia liberal de Justiça, que acabam por tornar sua concepção incompleta. Desse modo, Sandel critica principalmente a tese da prioridade do que é justo sobre o que é bom. Sustenta que a afirmação de Rawls de que a justiça é a virtude primordial das instituições sociais se dá por que seu liberalismo deontológico exige uma concepção de justiça neutra em relação à Resenha 341 SCIENTIA IURIS, Londrina, v.22, n.2, p.338-341, jul.2018 DOI: 110.5433/2178-8189.2018v22n2p338 qualquer concepção particular de seja bom, de modo a propiciar o acolhimento de diferentes concepção de bem. Desse modo, a ideia central da obra é que exige-se a concepção de um sujeito que exista independente dos valores culturais enraizados na sua comunidade para que o justo possa ter prioridade sobre o bom. Para Sandel, essa concepção liberal de um sujeito autônomo escolhendo suas intenções e objetivos é superficial por ignorar a imersão do sujeito nas práticas sociais existentes. Segundo o autor, a identidade do sujeito é definida por fins que não são escolhidos, mas sim descobertos pela virtude do ser imerso no contexto social compartilhado. A ideia de que concepção de justiça deve se manter neutra em relação a concepção do que é bom reflete com conceito de pessoas como agentes capazes de livre escolha independente das amarras morais preexistentes, por sua vez, é contraditória com os princípios da justiça que Rawls pretende sustentar. Como, por exemplo, o princípio da diferença, sustentado por Rawls, reflete a ideia de que desigualdade apenas se justifica quando se permite a concessão de uma vantagem aos menos favorecidos, pressupõe a existência de um laço moral entre aqueles que vão repartir os bens sociais, o que exige a existência de uma comunidade constitutiva. Segundo Sandel, é precisamente este tipo de comunidade que está excluído pela concepção de Rawls de um sujeito sem amarras e definido com anterioridade aos objetivos que escolhe. Assim o projeto de Rawls fracassa porque não podemos ser ao mesmo tempo pessoas para quem a justiça é primordial e pessoas para quem o princípio da diferença é um princípio de justiça. Resenha _GoBack _Hlk518054911 _Hlk518054763 _Hlk479228142 _GoBack _GoBack result_box _GoBack __DdeLink__457_1376851022 result_box1 result_box2 __DdeLink__349_172134589 __DdeLink__413_1966995200 __DdeLink__484_1040602768 __DdeLink__327_2069876165 _GoBack _GoBack _Hlk518478187 _GoBack art4 _GoBack _GoBack 
work_nyyjwfamgrajhnrldlhw2lecn4	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221730643 Params is empty 221730643 exception Params is empty 2021/04/06-03:20:27 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221730643 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:27 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_o2wmhpbtejdqlksilul4whhcbi	----	BRITISH MEDICAL JOURNAL 31 MAY 1980 1289 with negative findings from-for example-an analysis of secular trends and geographical patterns of beef consumption within the United States3 and from case-control studies. A positive association was found, however, between consumption of meat and cancer of the large intestine in Hawaiian Japanese.4 Possibly that positive result may have been obtained while the findings in similar studies have been negative because the diet of the Hawaiian Japanese population is appreciably heterogeneous.2 The epidemiological evidence of an association between fat consumption and large intestinal cancer is similarly equivocal. International comparisons show a correlation between fat intake and cancer rates5; but analyses within countries and case-control studies generally do not confirm the association.6 Other data, however, suggest that meat and fat may play a part in carcinogenesis. Differences can be shown in the faecal flora in populations with high and low rates of cancer of the large intestine.7 Anaerobic bacteria such as Bacteroides are more abundant in areas of high incidence. There are several possible mechanisms through which bacterial activity on substances derived from meat or fat could be carcinogenic. For example, a high intake of dietary fat might increase the colonic concentration of bile acids, whose subse- quent metabolism by bacterial flora might produce carcinogens.8 The close geographical and secular association between bowel cancers and other non-infective diseases of the bowel such as appendicitis and diverticulosis has suggested a link with a refined carbohydrate diet, low in fibre.9 A recent comparison between a rural area of Finland with low rates of colorectal cancer and Copenhagen, where the rates are high, showed that the intake of dietary fibre was higher in the country area.2 A high intake of unabsorbable fibre could protect against bowel cancer in several ways: bulky stools might dilute carcinogens; the reduced bowel transit times might lessen the contact between carcinogens and the mucosa; and fibre might alter the faecal flora. Separate from the interrelated hypotheses on meat, fat, and fibre are observations on alcohol intake and bowel cancer. A survey in the United States showed a striking correlation between beer consumption in 47 States and mortality from colorectal carcinoma'0 that was greater for rectal than colonic cancer. (though the distinction between these two sites in epidemiological studies may be of doubtful value since so many of the lesions occur around the junction of the sigmoid colon and rectum). The evidence for an association between beer and colorectal cancer is inconclusive, but a recent study of mortality among blue-collar workers in a Dublin brewery has provided further support." Over 20 years there were 32 deaths from cancer ofthe rectum compared with an expected 18-2 as estimated from the rates among all inhabitants of Dublin. There was also evidence of an associa- tion for carcinoma of the colon though the relative risk was lower: 32 deaths observed compared with 27-3 expected. How beer drinking could lead to large bowel carcinoma is not clear. At present, therefore, the evidence against any particular dietary factor in causing bowel cancer is inconclusive. As is so often the case, further epidemiological surveys are needed. 'Buell D, Dunn JE. Cancer mortality among Japanese Issei and Nisei of California. Cancer 1965;18 :656-64. 2 Armstrong B, Doll R. Environmental factors and cancer incidence and mortality in different countries, with special reference to dietary practices. IntJ_ Cancer 1975;15:617-31. 3Enstrom JE. Colorectal cancer and consumption of beef and fat. Br Y Cancer 1975;32:432-9. ' Haenszel W, Berg JW, Segi M, Kurihara M, Locke FB. Large-bowel cancer in Hawaiian Japanese. Y Natl Cancer Inst 1973;51 :1765-79. 6 Drasar BS, Irving D. Environmental factors and cancer of the colon and breast. Br y Cancer 1973;27:167-72. 6 Langman MJS. The epidemiology of chronic digestive disease. London: Edward Arnold, 1979. 7 International Agency for Research on Cancer, Intestinal Microecology Group. Dietary fibre, transit-time, faecal bacteria, steroids and colon cancer in two Scandinavian populations. Lancet 1977;ii:207-11. 8 Aries V, Crowther JS, Drasar BS, Hill MJ, Williams REO. Bacteria and the aetiology of cancer of the large bowel. Gut 1969;10:334-5. 9 Burkitt DP. Epidemiology of cancer of the colon and rectum. Cancer 1971 ;28:3-13. 10 Enstrom JE. Colorectal cancer and beer drinking. Br Y Cancer 1977; 35:674-83. 1 Dean G, MacLennan R, McLoughlin H, Shelley E. Causes of death of blue-collar workers at a Dublin brewery, 1954-73. Br J Cancer 1979; 40:581-9. Welcome award: belated justice Doctors in the NHS will welcome their 1980 pay award,' while seeing it as belated justice. But at a time when the Government is trying to keep public sector pay rises within prescribed cash limits it must have swallowed hard before approving the Review Body's recommendations that give the profession average rises exceeding 30% (p 1327), backdated to 1 April 1980. The size of the increases, which range from over £,1200 for house officers to nearly £4000 for GPs, and over £4000 for senior consultants, is in part a consequence of the restraints imposed by previous Government pay policies, which, accord- ing to the BMA, have cost the medical profession £340 million -not allowing for inflation-in irretrievably lost income since 1975. This is a substantial loss which other groups should recognise when contrasting their 1980 pay settlements with those of doctors. For the first time in five years doctors' pay has caught up with others in comparable walks of life and the Review Body's 1978 commitment to restore this parity was seen "as essential to the maintenance of an effective and efficient NHS for the benefit of the community as a whole."2 The public reception accorded to this award-10-7% of it is the final part of the three-stage 30% "catching-up" recom- mendations made in 1978-should not make doctors feel guilty. But criticisms from Whitehall and Fleet Street about the alleged inflationary effect of independent pay reviews3 will cause some uneasiness in the profession, who may fear loss of the Review Body. Even the juniors, who for the past two years have eschewed the Review Body system, may now recognise its worth. The medical and dental professions have the oldest independent review machinery and despite occasional mal- functions and two near breakdowns it has served the pro- fessions reasonably well and should be preserved. Like all machinery, however, it requires regular overhaul and the clash with the professions over how far it can legitimately go in criticising agreements negotiated with the DHSS (p 1330) and the extent to which it operates a pool system of payment must be quickly resolved. On the latter point, not all doctors will be convinced by the Review Body's protestations (p 1330) that it operates no pool. In this Tenth Report, for example, the incremental pattern of the medical assistants' scales is "improved" at the expense of a downward adjustment in their extra-duty payments, surely an illustration of the pool prin- ciple. While the experienced people who serve on the Review Body are bound to form definite views about any agreements o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J: first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 8 0 .6 2 2 7 .1 2 8 9 o n 3 1 M a y 1 9 8 0 . D o w n lo a d e d fro m http://www.bmj.com/ 1290 BRITISH MEDICAL JOURNAL 31 MAY 1980 on terms and conditions of service they are invited to price it is arguable, to say the least, whether their remit includes using financial means to modify any proposals of which they dis- approve-as, in effect, happened with the consultant contract proposals. Such proposals have customarily been hammered out after months of negotiations between the DHSS and representatives well versed in the intricacies of the craft concerned. The profession believes that the Review Body should assess a realistic "rate for the job" which recognises the long training, skill, and responsibilities of all those in the grades in question; and it should price separately and additionally other payments or alterations in the structure over and above the basic rates which have been negotiated between the profession and the Health Departments. The Review Body, however, sees itself as being concerned with the remuneration of the profession as a whole and with the overall structure, arguing that "wherever a significant change for one group within the structure is envisaged, we need to be supplied with adequate information about its effects on work load and duration, and to be satisfied that it is consistent with the wider needs of the structure as a whole, if we are to carry out our proper function." This is a crucial difference of opinion and while admittedly a clear boundary between policies and pricing is hard to define, all parties to the Review Body exercise must speak frankly and act responsibly if the system is to work and keep the confidence of doctors; the BMA has already approached the Government about reviewing the Review Body's remit. Since the mid-1960s the profession's pay-and, for GPs, expenses-structure has become increasingly complicated, which may explain in part the almost routine delays that now occur in publishing the annual reports. The Review Body sympathises that the new levels of pay "are several months out of date by the time their impact is felt 'in the pocket,'" and notes that there seems to be little scope for streamlining the administrative procedures for implementation. GPs already receive payments "on account" while family prac- titioner committees work out the detailed increases. Perhaps a similar mechanism might be introduced for hospital and community medicine doctors. (Which was also extended to NHS staff awaiting the outcome of the Clegg comparability exercise.4) On the question of making the mid-point of the "pay year" the target date for estimating incomes instead of 1 April the Review Body is firm, repeating its 1971 view that to anticipate future inflation must to an extent make inflation self-generating. The BMA will no doubt be submitting further evidence for a change to a mid-year target for the 1981 review. The BMA puts great effort and much skill into preparing and delivering its written and oral evidence and these labours have greatly benefited doctors. Headquarters has sent all the regional craft committees detailed letters on what the report means for the respective crafts. GPs will be pleased that more emphasis has been put on the rewards for out-of-hours work, with the night visit fee increased by 50%, though they will be disappointed that the Review Body members remain un- convinced by the profession's arguments about increased work load in general practice. In contrast to the Ninth Report this year's report increases practice expenses substantially (p 1329), in part to take account of the ever-recurring problem of previous underpayments. Consultants will welcome the overdue rise in the amount of distinction and meritorious service awards-A awards go up by nearly 50% and B awards by about 47%-and the proportionately larger increase in the number of C awards (p 1329). They failed, however, to persuade the Review Body to rectify the contraction in the consultant scale by applying a greater increase at the top of the scale. Community physicians will welcome their continued link with the consultant scale and many clinical medical officers will benefit from a shortening of the incremental scale from 10 points to seven; but trainees will be disappointed at the rejection of the profession's case for a 30% supplement to their basic salary for out-of-hours duties. The Review Body has also pointed out that it "must have regard to the 'total remuneration package' available to doctors and dentists and to others elsewhere" and it sees pension benefits as the "single most important non-cash element." The report observes that "the value of the pension arrangements for the medical and dental professions, particularly under conditions of uncertainty and at times of high price inflation, offset the general level of pension benefits and fringe benefits taken together at comparable levels in private employment- where even ex gratia adjustments to pensions to match the full increase in the cost of living are the exception." The new chairman, Sir Robert Clark, and his colleagues promise a more detailed study of the value of pensions and the BMA is sure to pay particular attention to this aspect of its 1981 evidence. The benefits from the Tenth Report are considerable and substantially outweigh any disappointments, but what of the cost to the NHS ? In principle the cost is justified, for, as the Review Body itself has acknowledged, good morale among doctors is essential for the wellbeing of the NHS, and pre- sumably the Government, having accepted the award, agrees. In practical terms the Review Body estimates the annual cost of the third stage of the catching-up award as 0106m, of the 1980 changes in the consultant contract as at least £7m, and of the 18.7% cost-of-living award as £206m. Stage three has already been funded by the Government, new money has been promised for the consultants' £7 million, and there should be no problem for GPs' increases as FPCs are not constrained by cash limits. For the rest of the profession in the NHS 14% of the cost-of-living rise has been built into the 1980-1 NHS budget, which leaves over 4%, to be found. According to the DHSS this is no great obstacle, for in a press statement accompanying publication of the report it stated that "the cash limit is expected to be adequate, especially when allowance is made for savings through greater efficiency in the NHS." Doctors will not wish to quarrel with such a confident assertion and will be relieved that their 1980 award is not at the expense of patients' services. I Review Body on Doctors' and Dentists' Remuneration. Tenth Report, Cmnd 7903. London: HMSO, 1980. 2 Review Body on Doctors' and Dentists' Remuneration. Eighth Report, Cmnd 7176. London: HMSO, 1978. 3 The Times, 20 May 1980, p 15. 4 Anonymous. Br MedJ 1980;280:880. Delayed BMJs We apologise to our readers for the continuing delays in arrival of the BMY and for its greatly reduced size. These problems seem likely to continue: as yet the trade dispute in the printing industry remains unresolved. o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J: first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 8 0 .6 2 2 7 .1 2 8 9 o n 3 1 M a y 1 9 8 0 . D o w n lo a d e d fro m http://www.bmj.com/ 
work_o3qsn2bb25aupjizk22hwmlcrm	----	This work is no longer available Skip to main content MENU   Toggle navigation menu Sign up Log in University of Texas at El Paso ScholarWorks@UTEP Gallery Expert Gallery Selected Works of Stacey K. Sowards Follow Contact This work is no longer available. Find more of this author's works at: Stacey K. Sowards Copyright 1999–2021 bepress.™ All rights reserved. Contact Us Terms of Service Copyright Privacy Policy User Guide Back to Top 
work_o4ientq6ivgujbla3kuwm52i2a	----	TRR 2320 1 Transportation Research Record: Journal of the Transportation Research Board, No. 2320, Transportation Research Board of the National Academies, Washington, D.C., 2012, pp. 1–9. DOI: 10.3141/2320-01 A. A. Amekudzi, S. R. Brodie, and J. M. Fischer, School of Civil and Environmental Engineering, Georgia Institute of Technology, 790 Atlantic Drive, Atlanta, GA 30332. M. K. Smith, Office of Safety, Federal Highway Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590. C. L. Ross, School of City and Regional Plan- ning, Georgia Institute of Technology, 245 Fourth Street, NW, Atlanta, GA 30332. Corresponding author: A. A. Amekudzi, adjo.amekudzi@ce.gatech.edu. assessed through structured interviews of selected DOTs. On the basis of the findings, the researchers formulated a performance-based framework, the EJ maturity-scale model, that describes and evaluates the maturation of EJ policies, programs, and activities. The model was applied to evaluate different programs and demonstrate different levels of effectiveness in achieving equity outcomes in transportation. The performance-based framework can be used as a benchmarking resource by agencies interested in assessing and improving the level of effectiveness of their EJ policies and programs. Background: ExEcutivE ordEr, Laws, and PoLiciEs Environmental justice became a national issue in the early 1980s when a North Carolina community protest led to a federal investiga- tion on the location of toxic waste landfills in the South. The result- ing study by the U.S. Government Accountability Office revealed that a disproportionately high number of such facilities were sited in low-income and minority neighborhoods throughout the region (1). EJ regulations were formally mandated by President Clinton in 1994 with the signing of EO 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. The EO requires all federally funded agencies to iden- tify and address disproportionately high and adverse human health and environmental effects of their programs, policies, and activities on minority and low-income populations. The EO effectively brought together two previous regulations: Title VI of the 1964 Civil Rights Act, which focuses on nondiscrimi- nation, and the 1969 National Environmental Policy Act (NEPA), which focuses on protecting the natural environment. These two acts established the basis and provided the required authority for the concept of EJ. The transportation community, however, did not outline specific goals and regulatory guidelines until the subsequent U.S. DOT Order 5610.2 in 1997 (2) after articulating its proposed EJ strategy (60 FR 33896) in 1995. The order established the pro- cess for the DOT and its operating administrations to integrate the goals of the EO and was developed completely within the framework of existing requirements, primarily NEPA and Title VI of the Civil Rights Act, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended, the Intermodal Surface Transportation Efficiency Act of 1991, and other DOT applicable guidance concerning planning; social, economic, or environmental matters; public health or welfare; and public involvement (3). FHWA Impact of Environmental Justice on Transportation applying Environmental Justice Maturation Model to Benchmark Progress Adjo A. Amekudzi, Mshadoni K. Smith, Stefanie R. Brodie, Jamie M. Fischer, and Catherine L. Ross Presidential Executive Order 12898 on Environmental Justice (EJ) was signed in 1994, and the U.S. Department of Transportation (DOT) issued regulatory guidelines for addressing EJ in transportation in 1997. Transportation agencies have since adopted a range of policies, pro- grams, and activities to identify and address disproportionately high and adverse human health and environmental effects of their policies, programs, and activities on minority and low-income populations. On the basis of the relevant literature and structured interviews, this paper assesses how state DOTs are addressing EJ issues in their decision-making processes and identifies common and effective practices. The results show that several state DOTs have implemented public involvement programs and other procedures to assess the burdens of transporta- tion investment. However, fewer agencies assess the equity of benefits, fewer assess outcomes of EJ actions, and fewer still link EJ analysis outcomes with future funding and policy decisions. On the basis of existing practices and regulatory guidelines, the researchers formu- lated a performance-based, maturity-scale model that agencies can use to benchmark the effectiveness of their external and internal EJ activi- ties in achieving EJ outcomes in transportation. The model was applied anonymously to selected agencies to demonstrate different maturity levels in addressing EJ. Since the Presidential Executive Order (EO) on environmental justice (EJ), EO 12898, was signed in 1994, transportation agencies have developed a range of policies and programs that they use to monitor, mitigate, and prevent disproportionately adverse impacts of trans- portation on minority and low-income communities. Because of the absence of explicit and quantitative guidance, EJ programs are evolv- ing at different rates and with different emphases. This study reviewed the impact of EJ on transportation planning in state departments of transportation (DOTs) and, by extension, the impact on transporta- tion. Relevant literature was reviewed and the state of the practice 2 Transportation Research Record 2320 issued DOT Order 6640.23 in 1998, and FHWA and FTA issued a memo in 1999, each providing more specific details for regulating and monitoring transportation policies and programs for achieving EJ outcomes. FundaMEntaL PrinciPLEs oF EnvironMEntaL JusticE in transPortation Specifically, FHWA and FTA define EJ as having three fundamental principles related to burdens, process, and benefits (4): 1. To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and low-income populations (burdens); 2. To ensure the full and fair participation by all potentially affected communities in the transportation decision-making process (process); and 3. To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations (benefits). These principles are applicable for all phases of project development for any agency receiving federal funds, whether the improvement is federally funded or not. The target groups to be considered in EJ are blacks, Hispanics, Asians, American Indians, Alaskan Natives, low-income people, and, more recently, Native Hawaiians or Other Pacific Islanders. The elderly, disabled, and child population groups were listed as target groups in EO 13330: Human Service Transportation Coordination (2004), although they were not explicitly identified in the original EO, and are considered in practice (4). EvoLution oF EnvironMEntaL JusticE through PEEr-to-PEEr BEnchMarking EJ regulations do not include explicit quantitative compliance mea- sures to guide federally assisted agencies in the application of the EJ principles. They require interpretation. For example, how many advocacy groups must be included for a process to “ensure . . . full and fair participation?” The guidance is silent on this matter and others, leaving agencies to interpret the order in their own way. At the time of implementation in the mid-1990s, this lack of guidance caused a great deal of confusion and frustration for public agencies. However, according to some of the practitioners interviewed in this study, this lack of guidance has provided unique opportunities for agencies to develop EJ programs in a manner that best fits agency and customer needs; it has also allowed agencies to be flexible and creative. Through peer-to-peer benchmarking (i.e., communication and comparison) among states, agencies can organically develop best-practice models that are context sensitive, but benefit from a knowledge of policies, methods, and tools used by peer agencies, indicating that EJ is an evolving practice. This is a different approach from many federally regulated programs that typically identify compliance measures and means by which agencies must confirm compliance. By 2010, several EJ programs had been in place at state transportation agencies for at least a decade. These programs reflect the opportunities and challenges created as a result of less rigid regulation. coMPLiancE Lack of explicit guidance does not remove the oversight require- ment for the regulating agency. FHWA and FTA monitor state DOTs’ compliance with the EJ regulatory guidelines. Typically, local agen- cies align their EJ programs with the state DOT and are, in this way, indirectly connected to FHWA and FTA. This connection, however, may vary depending on the location and population size of a local community. For example, a rural municipality with a population less than 10,000 may adopt its state’s DOT’s EJ policies. However, in metropolitan areas, the metropolitan planning organizations (MPOs) may lead most of the planning activities and thus become the primary points of contact for the federal agencies. As a result, MPOs work closely with FHWA and FTA on EJ compliance. Ultimately, all agencies must comply with the federal regulatory guidelines on EJ and the oversight requirements of Title VI and NEPA. Each agency must provide a Title VI compliance report annually. The report provides evidence of the activities that the agency has undertaken to meet the requirements of Title VI and EJ. Title VI compliance reporting can often be combined with, or at least aligned with, NEPA compliance. The NEPA process requires documentation of all plan development processes undertaken by an agency that receives federal funds. This includes documentation of potential impacts on both natural and human resources, along with measures for mitigating such impacts. Through the NEPA process, state and federal partners can review the impacts and mitigation measures for any federal process and produce one of three types of documents: a categorical exclusion, an environmental assessment, or an environmental impact statement. EJ efforts are reviewed for compliance as part of the review of the Title VI and NEPA documents. In addition to document reviews, the federal government can assess the quality of an EJ program at certification reviews for MPOs and when auditing self-certification documentation for state and local agencies. FHWA and FTA funding is the basis of such federal involvement with MPOs. EJ Maturation ModEL The literature on transportation planning and EJ was reviewed to assess the status of state DOT policies and programs for achieving EJ, including common and effective practices and lessons learned since 1994. The literature discusses a range of policies, public involvement programs, technical analysis methods, before-and-after studies, and ways to link EJ assessments and outcomes with decision making. The literature review identified several agencies that have devel- oped guidance to integrate EJ concerns into their operating proce- dures (1, 5–7) and found that agencies are continuing to refine their approaches to EJ. The study results allowed for the development of a three-phase maturity-scale or maturation model that captures the process of continuous improvement through which EJ programs are being developed by state DOTs. considering Burdens and Benefits The 1994 EO required federally sponsored agencies to develop poli- cies, programs, and activities to ensure full and fair participation of all potentially affected people in decision making; to avoid or mitigate disproportionately high and adverse impacts to minority and low-income populations; and to prevent the denial, reduction, Amekudzi, Smith, Brodie, Fischer, and Ross 3 or delay of benefits to minority and low-income populations. A 2008 national survey of MPOs and state DOTs found that both MPOs and DOTs have consistent knowledge of EJ concepts across agen- cies and that several respondents demonstrated a strong commit- ment to EJ beyond legislative requirements (1). The response rate for state DOTs was 38% (19). DOTs and MPOs expressed similar perspectives about EJ. Agencies reported on EJ compliance strat- egies including surveying public opinion, assessments based on geographic information systems (GIS), and the use of performance measures. Public involvement was found to be a particularly impor- tant, highly visible, and quantifiable element of the EJ process. For performance measures, the survey respondents stressed the need to incorporate decision criteria to measure design. Other results indi- cated that some disproportionately high and adverse impacts may be mitigated and others avoided. Also, if projects advance largely because of political influence, despite EJ concerns, the implement- ing agency risks litigation. The 2008 national survey also identified a number of EJ concerns that affect policy decisions: (a) public par- ticipation, (b) access to transportation, (c) location of public facili- ties, (d ) access to health care, and (e) transit access. Transit access can be especially important to low-income and elderly populations and minority communities that may not have other transportation options. Owens et al. recommend that planners include affected populations early in a transit planning process and build rapport with such communities (1). Otherwise, without an inclusive pro- cess, it is even more difficult to achieve truly equitable outcomes. Amekudzi and Dixon have similarly reported on the importance of having an equitable process for achieving equitable outcomes; they emphasize the linkage between equity in process and outcomes (8). Macrolevel and Microlevel analyses Proactively, the Arizona DOT conducted an analysis of its EJ pro- gram in 2002 (5). The Arizona DOT study found that although EJ processes always involve identifying disproportionately high and adverse impacts to minority or low-income populations, impacts have been defined in several ways. They have been associated with (a) the siting of undesirable or environmentally hazardous facilities in areas that are disproportionately populated by minority or low- income residents; (b) public participation in decision making; (c) public transportation access, and (d) funding decisions, in the sense that prioritization of certain projects may have implications for certain communities that receive transportation benefits (5). To address all of these important impacts, the Arizona DOT study distinguished between macrolevel (policy) and microlevel (project) analyses, as follows (5). • Macrolevel: – Coordinate efforts with other transportation agencies; – Create detailed, formalized policies, procedures, and guidance; – Communicate policies and procedures with staff and departments; and – Consider the effectiveness of the policies and procedures yearly. • Microlevel: – Define project study area, – Develop community profile, – Analyze impacts, – Identify solutions, and – Document findings. Macrolevel analysis refers to the formal incorporation of EJ consid- erations into agency policies, programs, and procedures. The current study found that only a few DOTs have formalized their EJ policies, programs, and procedures; however, without the formal incorpora- tion of EJ considerations into agency programs and procedures, it is difficult to track EJ compliance. Microlevel analysis determines if a project will have disproportionately adverse impacts on minority and low-income populations (5). To achieve the full benefit of macrolevel and microlevel analyses, Arizona DOT researchers recommended linking funding decisions with environmental planning and project management. Other organizational recommendations include the for- mation of community planning groups, transit planning partnerships, and an ongoing EJ task force (5). Transportation policy decisions ultimately affect the community. For example, some of the policies and procedures defined at the macrolevel may have to do with ways to involve the public or ways to conduct microlevel analysis. Without such guidance in place, an agency may comply with the regulations of the EO and state man- dates with respect to actions taken, but still fail to achieve EJ in the eyes of the public, and at the level at which the public perceives dis- proportionately high and adverse impacts occurring. The experience of the Arizona DOT is a prime example. Its study results showed that the agency was on par with peer agencies in terms of EJ actions; however, community groups continued to voice concern over the quantity of transportation options available to low-income and minority communities as well as potential negative impacts to those communities (9). Performance-based, policy-level EJ programs can help the agency monitor and evaluate EJ outcomes and incorporate these results into future transportation decisions. Performance Measures for EJ Performance measurement allows agencies to assess and track the effectiveness of their EJ programs. Performance management is the use of performance measurement information to inform decision making in a way that performance improves over time according to agency goals and objectives. The performance management litera- ture recommends measuring inputs (actions and methods), outputs (products and services delivered), and outcomes (consequences of the program outputs on customers) for a comprehensive view of performance (9). Often, each of these categories of measures can be applied at both macro- and microlevels of analysis. Table 1 sum- marizes performance measures that may be appropriate for use in an EJ assessment, depending on the goals of the agency. As shown in Table 1, outcome measures seem to be the most com- mon for EJ analysis. Some agencies have begun to measure perfor- mance in the areas shown in Table 1. For example, the Colorado DOT has developed a list of qualitative performance measures, addressing issues such as accessibility to jobs, travel times to selected activ- ity centers, provision and quality of transit service, and distribution of transportation funding among population groups. The Colorado DOT generally compares these measures across population groups (i.e., minority and nonminority) and assesses them before and after the implementation of a transportation project. The measures were initially qualitative because there were no data available for evalu- ating them. However, the agency’s intent was to develop appropriate measures, collect the data, develop the necessary analysis tools, establish a baseline, and evaluate impacts at the statewide and regional levels (6). Public involvement and customer satisfaction measures are in use at several DOTs (11), but they are not necessarily being used for EJ analysis or decision making. 4 Transportation Research Record 2320 technical analysis Methods and challenges The literature discusses a range of technical analysis methods used to support EJ processes. Most EJ analyses make use of national cen- sus data along with GIS to determine the distribution of burdens and benefits. Depending on the needs of a particular project, analysis may focus on environmental impacts such as air quality and noise (12); social impacts such as accessibility, travel opportunity, and safety (13); or a variety of other effects such as those identified in Table 1. NCHRP Report 532 provides a prescriptive overview of analysis methods for several types of impacts (14). EJ analysis often faces some definitional challenges, including (a) how to define and apply concepts of equity, such as disproportion- ality (15, 16); (b) how to identify target populations, given ambiguous census categories (16); (c) how to define a study area with appropri- ate boundaries, given that an affected region will rarely coincide with the boundaries of census units (13, 17 ), and (d) how to account for the modifiable areal unit problem where using different geographical units of analysis results can lead to different results (8). Because every method has both advantages and disadvantages, Hartell recommends that simple statistical tests should be applied to review the characteris- tics and distributions of the data before choosing the most reasonable methods of analysis (16). Klein suggests the use of spatial statistics to enhance GIS analysis to overcome some of the definitional challenges associated with drawing boundaries and tracking cumulative impacts over time (18). Public involvement Public involvement is one of the more explicit elements of the EJ regulatory requirements. The EO identifies specific categories of stakeholders to be included, in addition to those identified by NEPA. Many agencies have merged the EJ and NEPA public involvement practices by paying special attention to include the low-income and minority populations within the NEPA process (1). Other agencies have unique public involvement practices, designed to meet the diverse needs of their particular regions and projects (4). To highlight a few agencies that go beyond the traditional or status quo approaches to public involvement, FHWA compiled a list of 10 project and program development efforts across the country (4). The South Carolina case provides an effective practices example through a nontraditional community outreach approach. Recogniz- ing that their first attempts at public involvement did not produce much minority input, the South Carolina DOT coordinated with local preachers to announce public meetings during church services in a predominately minority neighborhood. Numerous meetings were held in a variety of settings to make attendance convenient, and the South Carolina DOT committed to building the trust of the community by maintaining communication as decisions were being made (4). Another example of effective practices is the Wisconsin DOT’s proactive needs assessment for two heavily traveled corridors. Given the potential for controversy, the Wisconsin DOT began pub- lic involvement efforts nearly 3 years before it formally began the TABLE 1 Performance Measures for Environmental Justice (10, 11) Type of Measure Goal Area Performance Measures Input Output Outcome Safety and security Pedestrian and bicycle injuries and fatalities X Vehicle crashes X Accessibility Proximity to transit by type (bus or rail) X Accessibility to regional amenities (health care, education, etc.) X Mobility and efficiency Level of service (headways, days and hours of service) X Number of transfers required for trips between select O-D pairs X Percentage of transit travel time accounted for by transfers X Travel times for selected O-D pairs by mode X Percentage of congested travel times between select O-D pairs X Environmental protection, Number of households living within X feet of busy highway X energy conservation, Air pollution concentrations by type of pollutant X and quality of life Incidence rates of respiratory disorders X Number households exposed to noise exceeding X decibels X Number households living within X feet of a bus terminal X Percentage of buses servicing area that use alternative fuels X Property takings, household dislocations, access restrictions X System condition Condition of roads and streets X Condition of sidewalks X Average age and condition of transit vehicles X Funding equity Transportation capital expenditures per capita X Transportation operating expenditures per capita X Identity of users benefiting from new project or program X Public involvement Number of public outreach events X Number of participants attending public outreach events X Customer satisfaction ratings X Economic vitality and Number of and accessibility to jobs by type X competitiveness Employer accessibility to workers by skill level X Property values by location X Note: O-D = origin–destination; X = applicable; blank cell = not applicable. Amekudzi, Smith, Brodie, Fischer, and Ross 5 NEPA-required assessments in order to get input and support from the affected community, one made up of predominantly low-income, minority, and transient residents. In contrast to the South Carolina example, well-established leadership was difficult to find in this community. To reach community members, the Wisconsin DOT cre- atively partnered with a local middle school, incorporating transpor- tation and land use planning into the curriculum and having students prepare a portion of the needs assessment. A student team presented its findings in a public meeting to an audience of parents, Wisconsin DOT staff, city and county officials, and other interested individuals. This meeting was followed up by a community design charrette, from which suggestions were incorporated into the final project design. Going beyond regulations and following the spirit and intent of the EJ EO, the Wisconsin DOT addressed both the system and social needs of its community by allowing the residents to become more involved in community-based transportation planning (4). A third example of effective practices related to public involve- ment occurred in transit-oriented development in the Bay Area Rapid Transit (BART) Fruitvale Transit Village, an award-winning transit-oriented development project that originated with commu- nity opposition to a proposed parking deck. The success of this proj- ect for public involvement hinged on the willingness of BART and the City of Oakland, California, to partner with a local community- based organization, the Unity Council, which supported the inter- ests of the majority Latino district of Fruitvale. This partnership took the form of, first, agency grants to the Unity Council to initiate a community planning process and, second, a representative policy committee formed by means of a memorandum of understanding among all three organizations. By integrating the community’s needs and desires for the proposed project, the agency was able to develop a project that garnered enthusiastic community support, improved pedestrian traffic through the adjacent business district, promoted new investment activity around the transit station, and minimized nega- tive environmental impacts (4). These examples indicate that suc- cessful inclusive practices within various EJ communities may be nontraditional and context sensitive. Education and guidance Materials Formal integration of EJ programs and procedures in agency pro- grams, policies, and practices helps in managing and tracking the effectiveness of such activities. The Ohio DOT began to formalize the way in which it addresses EJ on the basis of the results of a pro- active study conducted by an EJ task force in 2002. The Ohio DOT study was conducted to determine the best approaches for Ohio to use in addressing EJ requirements in transportation, agreeing on mini- mal standards for EJ, and creating guidance and education materials on EJ from the Ohio perspective. The guidance provides the current regulations, demographic information, quantitative and qualitative test questions, public involvement recommendations, and integration tech- niques. The guidance also draws from Mid-Ohio Regional Planning Commission (the Columbus MPO) and the results of its EJ task force (7). This example illustrates the value of a close working relationship structured around EJ concerns between the state DOT and MPO. The Colorado DOT has also formalized its EJ procedures, beginning with a list of qualitative performance measures for public involvement (19). This was followed by publishing EJ and Title VI guidelines for NEPA projects in 2004. These guidelines prescribe procedures for the planning phases of projects and include detailed answers to frequently asked questions on EJ processes (20). These resources serve those involved in the transportation decision-making process by providing information on the regulatory history and background on environmental justice issues, including public involvement and planning techniques. EJ Maturation Framework The literature review results identified common elements of EJ pro- grams and initiatives, including public involvement programs, project analyses to determine burdens and identify disproportionately high impacts, and documentation. Less common elements include formal- ized EJ policies; before-and-after studies to determine whether EJ outcomes are being met, including timely benefits to affected groups (e.g., using performance measures to evaluate EJ outcomes, surveying affected communities to assess investment outcomes); and linking EJ analysis results with decision making. What emerges from the review is in essence a framework or model that shows agencies at different levels of maturity, in relation to achieving EJ outcomes in transporta- tion (Figure 1). The literature indicates that a good number of agen- cies have some level of public involvement and technical analysis to evaluate EJ at the project level; fewer, however, have a performance- based process for subsequently evaluating EJ outcomes and incorpo- rating the evaluation results into future policy and funding decisions. In general then, EJ programs may be activity focused or performance focused. Performance-based programs exhibit a higher level of matu- rity, in the sense that there is integration of past outcomes of an EJ program with future transportation policies and funding decisions. In performance-based programs, EJ is incorporated into all relevant DOT programs, positioning the agency to be more effective in achieving intended outcomes. Figure 1 summarizes the EJ maturation framework. An agency may be categorized in Phase I, II, or III of maturity. The phases are incremental, which means that Phase III is dependent on Phase II being in place and that Phase II is also dependent on Phase I being in place. In the first phase, an agency develops formal policies for EJ, identifies potential target groups, and develops public involve- ment processes. An agency in Phase II will build on Phase I activi- ties by implementing long-term monitoring and evaluation systems, to ensure that project burdens are not disproportionately distributed and benefits are not denied, reduced, or delayed for any populations. Agencies in Phase II begin to conduct before-and-after studies (either through public or technical evaluation) to assess whether intended EJ outcomes are being met. Phase III agencies take the results from Phase II activities and link them to policy and funding decisions, to ensure that EJ outcomes are met in ongoing project development and to incorporate evidence from past projects in future funding decisions. Phase III also provides a basis for evaluating new policy development regarding equity impacts. A performance-based program will include all three phases. Programs with Phase I initiatives or activities can only be categorized in the early stages of maturity, having EJ activi- ties but being unable to demonstrate conclusively whether intended outcomes are being achieved. Programs with Phases I and II only will be able to demonstrate the extent to which outcomes are being met but cannot articulate explicitly how decisions are being made to address any shortcomings detected in Phase II. The phase being implemented by an agency is indicative of the relative maturity of its EJ program. However, maturity may also vary within a phase. Specifically, the maturation framework further categorizes three levels of EJ programs within the first phase, as shown in Table 2. 6 Transportation Research Record 2320 The EJ maturation model does not imply that all the elements listed in a particular maturity level must be adopted by an agency in order to demonstrate EJ outcomes. However, it does indicate that agencies need to be thoughtful and strategic in deciding on which policies, procedures, and activities to adopt in order to develop a program that demonstrably achieves EJ outcomes. survEy rEsuLts, anaLysis, and discussion: BEnchMarking EJ PErForMancE Methodology Analysis of the EJ literature led to identification of several common and effective practices. Effective practices are those that will help agencies achieve EJ outcomes, as illustrated in Figure 1 and the following survery questions: 1. Does your agency have written formalized independent EJ policies or practices? If so, what are they? May we have access? 2. Does your agency systematically survey selected community groups, the public, or other organizations regarding the equity of transportation programs? 3. Does your agency have multimodal policy groups? 4. Does your agency use standard NEPA guidelines to conduct EJ processes? 5. What is your current data analysis methodology? For target areas? For determining impacts? Is it written or standardized in any way? 6. Does your agency have a citizen advisory group or any other structure for soliciting feedback? 7. How does your agency use information obtained from the public? 8. Does your agency have any examples, information, etc., to show result, outcome, or impact occurring as the result of considering EJ on transportation planning and practice? Transportation? FIGURE 1 EJ maturity-scale model showing application phases. TABLE 2 Typology of EJ Programs and Key Practices Type Approach Maturation Practices 1 Activity based Phase I, Level I Establish formal guidelines, identify target groups, and implement public involvement process. 2 Activity based Phase I, Level II Standardize technical analysis procedures and maintain citizen group lists. 3 Activity based Phase I, Level III Create standing citizen committee for feedback and implement formal interdivisional process. 4 Performance based (early stage) Phase II Create performance measures and use survey groups to measure outcomes. 5 Performance based (mature stage) Phase III Integrate outcomes into policies and funding decisions. Amekudzi, Smith, Brodie, Fischer, and Ross 7 A targeted survey was conducted to obtain more detailed infor- mation representing effective practices (some in more use than others). Because a national survey on EJ practices of state DOTs and MPOs had been completed within 2 years of the current study (1), the researchers did not think that another full-scale national survey would add significant value. Rather, they focused on identifying a range of effective practices to illustrate different maturation levels in achiev- ing EJ outcomes. The targeted DOTs were identified through the lit- erature and the list of DOTs submitted for review by national experts on EJ practice, including the TRB’s Transportation and Environmen- tal Justice Committee and the FHWA Resource Center’s Civil Rights Technical Services Team. Structured telephone interviews were then conducted with nine state DOTs during February 2011, with one follow-up interview conducted in June. The personnel interviewed were generally managers or coordinators in Civil Rights, Title VI, or Environmental Divisions. The survey questions listed above were developed to determine the DOTs’ current practices, assess a range of approaches, and determine how these approaches fall out on the maturity scale of achieving EJ outcomes. Tables 3 and 4 report the survey results anonymously. A review of the tables is informative regarding the maturing state of EJ in transportation in the country and the steps required for advancing EJ programs to their next level on the maturity scale. results Several important observations were made on the basis of the survey results. One important observation is that EJ programs are housed in various units of DOTs. In some states, EJ compliance is handled by the unit that also handles Title VI and Civil Rights compliance. In other states, EJ is seen as an environmental issue, and the process is conducted though the environmental division, often as a part of the NEPA process. Integration of the EJ process with NEPA can have advantages and disadvantages. Incorporating EJ into the NEPA pro- cess can ensure that EJ is accounted for in the planning of projects. However, because NEPA focuses on the natural environment and not the social environment, EJ analysis conducted by environmental departments may be limited in scope. Additionally, the full NEPA process is not conducted for all projects; those that qualify for cate- gorical exclusions do not require a full review. In these cases, EJ must be assessed separately. If EJ is housed exclusively in the Civil Rights or Environmental Division, EJ may not be addressed through interdivisional cooperation. More mature EJ programs will have a process that integrates these two divisions and possibly involves others. Just under half of the agencies studied had formal guidelines for EJ assessment, yet all of the agencies had a process to identify impacts on target groups. By federal mandate, all DOTs must have a public involvement process. However, many agencies have public involvement processes that are not necessarily considered as a part of EJ. In other cases, public involvement is seen as synonymous with EJ. Although public involvement is critical in EJ, it is not suf- ficient in and of itself to ensure that an agency achieves EJ outcomes. Because all agencies had one or more of these practices, they have achieved at least Phase I, Level I on the maturity scale (Table 3). In general, it was observed that the EJ programs of most DOTs are in the Phase I stage of the maturity scale. However, even within this phase, DOTs exhibit various levels of progress. Three DOTs were clearly in Phase I, Level I (i.e., DOTs 3, 4, and 5). These DOTs all determined disproportionately high and adverse impacts of projects on target groups. In addition, they may or may not have established public involvement processes. Some of them had integrated their EJ processes with NEPA. Only one of these DOTs (i.e., DOT 3) had a formal EJ plan at the time of the survey, but did not use NEPA to structure the EJ process. DOTs without EJ plans may develop one and promote EJ as an interdivisional initiative within the agency. DOT 7, for example, had developed an EJ plan. However, this agency did not have any formalized public involvement processes and would not be able to demonstrate an inclusive decision-making process; DOT 7 was therefore categorized at Level 1. DOT 7 did, however, have a written technical analysis procedure, an important Level II element, meaning that implementing a public involvement process would quickly move the agency to Level II status. DOT 8 identified disproportionately high and adverse impacts on target groups and documented EJ through NEPA. However, DOT 8 also did not show a formal public involvement process that involved EJ populations in decision making, and was therefore categorized as Level 1. The difference in the DOTs in Levels II and III is a result of a policy structure promoting feedback and cooperation within the agency. Only two DOTs (i.e., DOTs 2 and 6) were categorized in Phase I, Level III; both of these had a structured process for citi- zen feedback and interdivisional procedures. It should be noted that DOT 1 had a standing committee; however, missing elements such as technical analysis procedures and other Level II practices are needed for this agency to be categorized as Level II or beyond. Phase II of the model involves monitoring the outcomes of EJ actions to determine whether prior actions are actually achieving intended outcomes. This can be done through technical analysis using various performance measures and public evaluation (using surveys) of affected communities. Three of the DOTs surveyed monitor and measure EJ outcomes, as shown in Table 4. In a performance-oriented approach, one DOT has created a list of qualitative performance mea- sures that are compared across population groups (i.e., minority and nonminority) and conducted an assessment before and after the imple- mentation of the transportation project (1). Performance measures (qualitative or quantitative) used in conjunction with before-and-after studies are a critical tool for assessing EJ outcomes. Phase III of the model involves the next logical step after creating and evaluating performance measures: incorporating those results in future decision making. Table 4 shows the survey results for Phase III. It should be noted that DOT 9 does not have a distinct EJ program; rather it has integrated EJ into a DOT-wide project devel- opment process. As a result, the outcomes of the projects are linked back to funding decisions and policy development. In addition, two state DOTs were working toward the development of Phase III elements in their respective programs at the time of the survey. impact of EJ Policies, Programs, and activities on transportation The impact of EJ on transportation is dependent on the demonstrated performance or outcomes of EJ policies, programs, and activities on the quality of transportation for the transportation system users, with a particular focus on target groups. The extent to which EJ programs are demonstrably achieving EJ outcomes, as per EO 12898 and the FHWA–FTA guidance, can be linked to the maturity levels of various EJ programs in state DOTs (and other agencies involved in transpor- tation decision making) around the country. Specifically, according to the FHWA–FTA EJ principles and the findings of this study, to dem- onstrate EJ outcomes, agencies must involve target groups in deci- sion making on projects that are expected to affect them (process); 8 Transportation Research Record 2320 measure if there are disproportionate impacts on burdens and benefits for the identified target groups; implement actions to address dis- proportionate impacts; monitor outcomes to determine whether the intended outcomes of the EJ actions are being achieved; and address any deficiencies identified through future funding and policy deci- sions. The results of this study show that state DOTs are at different levels of maturity in developing the capacity to demonstrate EJ out- comes in transportation decision making, and, as with any evolving practice, there is a range of capacities to demonstrate EJ performance, with some agencies taking the lead in defining and demonstrating best practices. suMMary and concLusions More than 15 years have passed since the issuance of EO 12898. In that time, general, rather than specific, guidance from the U.S. DOT, FHWA, and FTA have allowed state DOTs to develop EJ programs to suit their individual needs while achieving the requirements of the issued guidelines. As a result, EJ programs across the country have matured to different levels. The EJ maturation model and the results presented in this paper allow state DOTs to benchmark the maturity of their programs against other states. DOTs can identify their maturity within the framework and determine steps for moving their EJ programs to the next level or best-practice status. The survey results show that several current practices end at the documentation phase. Therefore, the next step in several state DOT EJ programs is to measure EJ outcomes of transportation projects. The Arizona DOT’s research suggests that there may be a disconnect between an agency’s internal evaluation and external public evalu- ation of EJ efforts (5). This indicates the importance of postimple- mentation evaluations. To engage in performance-based EJ, agencies need to assess how well funding decisions reflect the knowledge obtained from EJ analysis, particularly how well they address any deficiencies, and affect the quality of transportation for target popula- tions and other communities (5, 21). Systematic ways to address these efforts include implementing formal policies and guidelines, (decision) criteria, and performance measures for EJ (1). These measures must then be incorporated into future transportation policy decisions and funding allocations for project development. As trans- portation agencies continue to improve and refine their EJ programs, a critical measure of performance of EJ activity on transportation TABLE 3 Practices and Survey Results: Phase I, Process and Burdens Level I Level II Level III Formal EJ Plan or Standard Guidelines Document EJ Through NEPA Structure ID of Disproportionately Adverse Impacts of Projects on Target Groups Public Involvement Process EJ Education Program Internal EJ Education Program External Maintenance of Citizen Group Lists Standardized Technical Analysis Procedures Formal Internal EJ Workgroups Standing Committee of Citizens for Feedback DOT 1 X X X DOT 2 X X X X X X DOT 3 X X X DOT 4 X X X DOT 5 X X DOT 6 X X X X X X X X DOT 7 X X X DOT 8 X X X DOT 9 X X X X Note: ID = identification; blank cell = not applicable. TABLE 4 Practices and Survey Results: Phases II and III Phase II. Evaluation of Benefits and Burdens Phase III. Decision Making: Linkage to Resources Survey of Target Groups to Measure Performance Measures for Process and Outcomes Systems Evaluation Assessment of Cumulative Impacts Linkage of Measured Outcomes to Funding Decisions DOT 1 X DOT 2 DOT 3 X DOT 4 DOT 5 DOT 6 X DOT 7 DOT 8 DOT 9 X X Note: Blank cell = not applicable. Amekudzi, Smith, Brodie, Fischer, and Ross 9 is the ability of agencies to demonstrate how they are achieving EJ outcomes in all the communities they serve. acknowLEdgMEnt This study was jointly funded by the Georgia Department of Trans- portation and the U.S. Department of Transportation through the Georgia Tech University Transportation Center project Impact of Environmental Justice on Transportation Planning. rEFErEncEs 1. Owens, E., G. Goodwin, C. Lewis, and J. Mallory. An Evaluation of Envi- ronmental Justice and Environmental Equity: Laws and Issues that Affect Minority and Low-Income Populations. Publication SWUTC/08/167921-1. Southwest Region University Transportation Center, College Station, Tex., 2008. 2. Department of Transportation, Office of the Secretary. Department of Transportation (DOT) Order to Address Environmental Justice in Minor- ity Populations and Low-Income Populations. Federal Register, Vol. 62, No. 72, April 15, 1997, pp. 18377–18381. 3. U.S. Department of Transportation, Office of the Secretary. Department of Transportation Final Environmental Justice Strategy. Federal Register, Vol. 60, No. 125, June 29, 1995, pp. 33896–33899. 4. Federal Highway Administration. Environmental Justice. www.fhwa. dot.gov.gov/ENVIRONMENT/EJ2.HTM. Accessed Sept. 30, 2010. 5. Jerome, A., and J. Donahue. What Is the Best Way to Address Environ- mental Justice Issues? Arizona Department of Transportation, Phoenix. 2002. http://www.azdot.gov/TPD/ATRC/publications/project_reports/ PDF/AZ506.pdf. 6. Grauberger, C., and D. Van Orden. Integrating Environmental Justice in Transportation Planning Phase II. Colorado Department of Transpor- tation Research Branch, 2003. http://www.coloradodot.info/programs/ research/pdfs/2003/environmentaljustice2.pdf/view. 7. Ohio Department of Transportation. Guidance and Best Practices for Incorporating Environmental Justice into Ohio Transportation Planning and Environmental Processes. Ohio Department of Trans- portation, 2002. http://www.dot.state.oh.us/Divisions/TransSysDev/ Environment/NEPA_policy_issues/ENVIRONMENTAL_JUSTICE/ Documents/EJ_Book_Complete.pdf. 8. Amekudzi, A. A., and K. K. Dixon. Development of an Environmental Justice Analysis Methodology for Georgia Department of Transporta- tion’s Multimodal Transportation Planning Tool. Proc., 8th Transpor- tation Research Board Conference on Planning Applications, Corpus Cristi, Tex., April 22–26, 2001. 9. Hatry, H. P., and J. S. Wholey. Performance Measurement: Getting Results, 2nd ed. Urban Institute Press, Washington, D.C., 2007. 10. Robinson, G. Environmental Justice in Transportation Toolkit, Volume 2. Transportation Equity Cooperative Research Program, 2008. http://ejkit. com/the-toolkit/ej-toolkit/ej-toolkit-volume-2/. 11. Midwest Transportation Knowledge Network. Data and Measure Syn- thesis. DOT State Stats, 2010. http://members.mtkn.org/measures/2010. 12. Forkenbrock, D. J., and L. A. Schweitzer. Environmental Justice in Transportation Planning. Journal of the American Planning Associa- tion, Vol. 65, No. 1, 1999, pp. 96–112. 13. Chakraborty, J. Evaluating the Environmental Justice Impacts of Trans- portation Improvement Projects in the U.S. Transportation Research Part D, Vol. 11.5, 2006, pp. 315–323. 14. Forkenbrock, D. J., and J. Sheely. NCHRP Report 532: Effective Methods for Environmental Justice Assessment. Transportation Research Board of the National Academies, Washington, D.C., 2004. http://onlinepubs. trb.org/onlinepubs/nchrp/nchrp_rpt_532.pdf. 15. Duthie, J., K. Cervenka, and S. T. Waller. Environmental Justice Analy- sis: Challenges for Metropolitan Transportation Planning. In Transpor- tation Research Record: Journal of the Transportation Research Board, No. 2013, Transportation Research Board of the National Academies, Washington, D.C., 2007, pp. 8–12. 16. Hartell, A. M. Methodological Challenges of Environmental Justice Assessments for Transportation Projects. In Transportation Research Record: Journal of the Transportation Research Board, No. 2013, Transportation Research Board of the National Academies, Washington, D.C., 2007, pp. 21–29. 17. Boston, T., and L. R. Boston. Beyond Race and Poverty: A Multi- Dimensional Approach to Measuring Environmental Justice. Atlanta Regional Commission, Atlanta, Ga., 2007. 18. Klein, N. Spatial Methodology for Assessing Distribution of Transporta- tion Project Impacts with Environmental Justice Framework. In Transpor- tation Research Record: Journal of the Transportation Research Board, No. 2013, Transportation Research Board of the National Academies, Washington, D.C., 2007, pp. 46–53. 19. Grauberger, C., and D. Van Orden. Environmental Justice Research Study. Colorado Department of Transportation Research Branch, 2002. http:// www.coloradodot.info/programs/research/pdfs/2002/env-justice.pdf/view. 20. Colorado Department of Transportation. CDOT’s Title VI and Environ- mental Justice Guidelines for NEPA Projects, Rev. 3. Colorado Depart- ment of Transportation, 2004. http://cospl.coalliance.org/fez/view/co:5133. 21. Sanchez, T., and J. F. Wolf. Environmental Justice and Transportation Equity: A Review of Metropolitan Transportation Organizations. Pre- sented at Racial Equity in Transportation: Establishing Priorities for Research and Policy Roundtable Sponsored by the Civil Rights Project at Harvard. Brookings Institution, Washington, D.C., 2005. The authors remain exclusively responsible for the material presented in this paper. The Environmental Justice in Transportation Committee peer-reviewed this paper. TABLE 3 Practices and Survey Results: Phase I, Process and Burdens Level I Level II Level III Formal EJ Plan or Standard Guidelines Document EJ Through NEPA Structure ID of Disproportionately Adverse Impacts of Projects on Target Groups Public Involvement Process EJ Education Program Internal EJ Education Program External Maintenance of Citizen Group Lists Standardized Technical Analysis Procedures Formal Internal EJ Workgroups Standing Committee of Citizens for Feedback DOT 1 X X X DOT 2 X X X X X X DOT 3 X X X DOT 4 X X X DOT 5 X X DOT 6 X X X X X X X X DOT 7 X X X DOT 8 X X X DOT 9 X X X X Note: ID = identification; blank cell = not applicable. 
work_o6dtqh7njvdvhenirirrqsr3ze	----	‘Market justice’ in China and Russia Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rgov20 Journal of Chinese Governance ISSN: 2381-2346 (Print) 2381-2354 (Online) Journal homepage: http://www.tandfonline.com/loi/rgov20 ‘Market justice’ in China and Russia Neil Munro To cite this article: Neil Munro (2018) ‘Market justice’ in China and Russia, Journal of Chinese Governance, 3:3, 307-330, DOI: 10.1080/23812346.2018.1490102 To link to this article: https://doi.org/10.1080/23812346.2018.1490102 © 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group Published online: 01 Aug 2018. Submit your article to this journal Article views: 73 View Crossmark data http://www.tandfonline.com/action/journalInformation?journalCode=rgov20 http://www.tandfonline.com/loi/rgov20 http://www.tandfonline.com/action/showCitFormats?doi=10.1080/23812346.2018.1490102 https://doi.org/10.1080/23812346.2018.1490102 http://www.tandfonline.com/action/authorSubmission?journalCode=rgov20&show=instructions http://www.tandfonline.com/action/authorSubmission?journalCode=rgov20&show=instructions http://crossmark.crossref.org/dialog/?doi=10.1080/23812346.2018.1490102&domain=pdf&date_stamp=2018-08-01 http://crossmark.crossref.org/dialog/?doi=10.1080/23812346.2018.1490102&domain=pdf&date_stamp=2018-08-01 RESEARCH ARTICLE ‘Market justice’ in China and Russia Neil Munro School of Social and Political Sciences, University of Glasgow, Glasgow, UK ABSTRACT Market justice is an important concept in neoliberal discourses legitimating unequal distribution of welfare within societies. This article explores the question of how useful it is for understanding distributive justice attitudes in Russia and China. It is based on a comparative literature review and an analysis of focus group discussions carried out in most provincial cities in both countries in 2012 and 2013. The literature review shows that Russia is closer to a neoliberal state. China, by contrast, has never followed neo- liberal prescriptions, either ideologically or as a matter of practical policy, pursuing instead the goal of a ‘socialist market economy’. The focus group discussions show that Chinese tend to view responsibility for welfare as shared between the state and individ- uals, whereas Russians, depending on their ideology, tend to view welfare as the exclusive responsibility of either the state or the individual. Russians are also more cynical about the way their economy works, suggesting their support for individual responsi- bility may sometimes shade into social Darwinism. ARTICLE HISTORY Received 10 May 2018 Accepted 14 June 2018 KEYWORDS Inequality; Russia; China; market justice; distributive justice Introduction Neoliberalism is about processes of governance rather than simply relations of production.1 In that sense, it is not the same thing as capitalism. Capitalist relations of production can coexist with non-neoliberal forms of governance. Neoliberalism’s key policy prescriptions are: first, liberalisation—to be achieved by freeing prices, floating currencies, abolishing preferential interest rates, and cutting trade and investment barriers; second, financial stabilisation—to be achieved through tax increases, spending cuts, fiscal discipline, and increasing domestic savings; and third, privatisation of provision of goods and services, on the assumption that private companies operating in markets are more efficient and/or provide better value for money than public bureaucracies.2 Neoliberalism is associated with the US, where its influence has been strongest, and with the UK, but its influence has not been restricted to these countries. As their CONTACT Neil Munro Neil.Munro@glasgow.ac.uk School of Social and Political Sciences, University of Glasgow, Adam Smith Building, Bute Gardens, Glasgow G12 8RT, Scotland, UK � 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/ licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. JOURNAL OF CHINESE GOVERNANCE 2018, VOL. 3, NO. 3, 307–330 https://doi.org/10.1080/23812346.2018.1490102 http://crossmark.crossref.org/dialog/?doi=10.1080/23812346.2018.1490102&domain=pdf http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ http://www.tandfonline.com power has spread throughout the globe, American corporations have become trans- national, and no longer necessarily tied to their home country. Their economic interests have traditionally been pursued not through eliminating or overcoming rivals in mercantilist competition but by deepening interdependence and promoting neoliberal ideology.3 It is precisely the fluidity and adaptability of neoliberal practi- ces to diverse contexts that have promoted their global influence. Everywhere where neoliberalism has been a guide to government policy, there has been a pre- sumption that individuals, not the state, should be responsible for their own and their families’ welfare. Market justice refers to a particular set of interrelated norms and beliefs, which are associated with neoliberalism and help to legitimate the capitalist economic system.4 It was adopted by Kluegel et al., a group of authors behind the International Social Justice Project (ISJP), which conducted comparative surveys in a dozen countries in 1991 and has since then conducted intermittent surveys in a smaller number of coun- tries.5 Kluegel et al. argue that market justice is multidimensional: it includes the pref- erence for reward according to the effort (equity) over equal distribution, opposition to government control of economic activity, recognition of the fairness of seeking profits, and of the need for income inequality as a stimulus for hard work.6 Such atti- tudes are thought to be conditional on perceptions that economic opportunities are abundant for those who are motivated to look for them, and that hard work is rewarded. Through its establishment, the rich come to be recognized even by the poor as having earned their status; and the poor likewise accept their lot. The concept of market justice is the basis of neoliberal positions on social welfare and serves to legitimate inequality. This article is an exploration of the relevance of the concept of market justice in the distributive justice attitudes of the general populations of two giant former social- ist states, Russia and China. The research question is how relevant is the concept of market justice to lived experience in the two countries. The purpose is to offer a crit- ical evaluation of the applicability of market justice in studies of Russian and Chinese distributive justice attitudes. The article takes a three-pronged approach. First, it reviews the literature on the relevance of neoliberalism to political and economic institutions in Russia and China. Then it reviews recent survey-based studies of public opinion on distributive justice issues in the two countries. Finally, it explores results of a set of focus group discus- sions carried out in most provincial cities in Russia and China in 2012 and 2013. Focus group data cannot prove or disprove any hypothesis about public opinion, but it can help to build up a richer understanding of what people think and feel. It is an appro- priate form of evidence for a study, which uses an inductive approach. Its juxtapos- ition with institutional analysis and survey data offers the possibility of forming a rounded judgment on how well the market justice concept fits with lived experience. The article finds that although the concept of market justice is problematic in both societies, it has a better fit with Russia because Russia has ended up closer to a neo- liberal state. Russia has attempted to integrate with the global capitalist economy on terms that benefit its elites and serve its strategic goal of rebirth as a Great Power (derzhava). It has embraced some key neoliberal tenets, such as fiscal conservatism 308 N. MUNRO and flat tax rates, is heavily exposed to the global economy through its dependency on fossil fuel and mineral exports and is interested in becoming a major player in global capitalism. The emerging Russian system was described by critics as a dead end because the early winners, now oligarchs, could block or impede further reforms. Putin guaranteed respect for the results of privatisation in return for the oligarchs’ withdrawal from politics. The need to continuously generate popular support has caused Russia to become ‘addicted’ to rents derived from fossil fuel and minerals exports. Russia does not call itself neoliberal, but rather reconstructs neoliberalism as something imposed from without. The welfare system is a hybrid of old Soviet institu- tions affected by budgetary cuts, moderated by the need to buy support from key constituencies. Russian capitalism is characterised by high inequality and ownership concentration but insecure tenure for very large assets. Although neoliberalism and decentralisation are sometimes seen as key characteris- tics of China’s process of urbanisation, China is much less neoliberal than Russia on nearly all parameters. First, local governments have continuously directed much eco- nomic activity. Second, China claims to be building socialism, even if in practice it is an oligarchic corporate state and the commitment to socialism often appears residual. Third, property rights are not the absolute rights of neoliberal theory but rather bun- dles of rights subject to ongoing negotiation over mutual obligations. Just as in Russia the distribution of natural resource rents is the key to the entire political economy, so in China land commodification is the key, financing much local government expend- iture and driving urbanisation. The exploitation of migrant workers and expropriation of peasants are fundamental to the success of the model. China’s response to their negative social consequences has been to build up a basic but comprehensive system of state welfare, in effect a Polanyian double move. However, in China, this has not been a simple exchange of welfare for support but rather a reimagining of the good life, whereby workers and peasants are being transformed into urban consumers. Harmonious labour relations serving the interests of foreign capital and light touch environmental regulation are not the result of neoliberal policy but rather unintended outcomes of decentralised economic management. Despite the many differences in their political–economic models, both China and Russia have made the transition to a form of capitalism, and through this process have become highly unequal societies. Although China is generally regarded as the more successful economy, because of its structural position as a leading manufacturer, and because Russia has become dependent on fossil fuels, but it is China that contin- ues to experience higher levels of poverty. The review of public opinion survey data on distributive justice attitudes shows that neither Russians nor Chinese regard inequality in a positive light. Most of the leading studies influenced explicitly or implicitly by the market justice concept, find that Chinese are more willing to accept responsibility to look after themselves, although this attitude may have weakened over the period spanning the 2007–8 financial crisis. In China socio- demographic effects on support for state welfare are relatively weak and rural dwellers express less demand for welfare even though, objectively speaking, they need it most. Overall, Chinese seem relatively accepting of inequality mechanisms but not inequality itself, whereas most Russians appear to reject both. JOURNAL OF CHINESE GOVERNANCE 309 The analysis of focus group discussions deals with two sets of issues: explanations of inequality and emotional and normative reactions. In their explanations of inequality, Russians were more likely to blame the capitalist system, more inclined to think that getting rich requires dishonesty and to associate work in the public sector with a life of poverty. Both Russian and Chinese respondents had a perception that money-making opportunities had been ‘sewn up’ or monopolised by wealthy families. In normative terms, it was clear from the discussions that most respondents in both countries believed in reward for effort as a principle of distribution. However, while young Russians were likely to believe in self-help as an absolute principle, young Chinese were more likely to see responsibility as shared. Among Russians, there was a prevalence of despair, pessimism, and anomic responses. Chinese respondents were generally less cynical and more optimistic. On the positive side, Russians were more likely to compare their own experience with Western examples, and to take diverse ideological positions. This article represents the first attempt, as far as the author is aware, to compare Russian and Chinese distributive justice discourses using focus group discussions as primary materials. It frames the comparison using market justice because of the important role of this concept in English-language work on distributive justice issues and because of its role in justifying neoliberal welfare policies. The intention is not to force the discourse of Russian and Chinese participants into a conceptual framework which is alien, but rather to hold up a mirror to the comparative literature while paying due attention to the lived experience of ordinary people in the societies concerned. The rest of this article is organised into six parts. The first two parts discuss recent literature on the role of neoliberalism in the Russian and Chinese political–economic models. The article then compares the two countries in relation to their resulting pat- terns of inequality. The next part argues for the important role of market justice as an organising concept in comparative studies of public opinion in these two countries. The penultimate part analyses focus group discussions in which respondents explain current distributional patterns and express their associated feelings and normative atti- tudes. The conclusion summarises the results of the study and points out some impli- cations for further research. Russia and Neoliberalism Russia has sought to integrate itself with the global capitalist economy on terms that benefit its elites and serve their larger strategic goal of rejuvenating Russian society and restoring the country’s status as a great power. At the core of this project are some key neoliberal tenets. For example, Putin’s macro-economic policy is neoliberal in its fiscal conservatism—its concern with balancing the budget and controlling infla- tion, combined with a relatively low flat rate income tax of 13% and corporate profit tax rates since 2008 at 20%.7 Russia is relatively exposed to the global economy through its dependency on exports of fossil fuels and other natural resources. Depending on fluctuations in com- modity prices, mineral fuel exports accounts for 60%–70% in the value of Russia’s total 310 N. MUNRO exports, and the bulk of this is crude oil, oil products, and natural gas.8 Around 40% of Russia’s gross export revenues have gone into various petroleum funds, which are invested in foreign securities as a way of diversifying risk.9 Russian forest resources get exported as raw material to China and from there are sent as finished products to end-consumers in the US, Western Europe, and Japan.10 Russia is interested in becoming a major player in the global economy. Although problems symptomatic of partial reform such as poor governance and corruption have traditionally limited Russia’s attractiveness as a foreign investment destination, in the aftermath of the 2008–9 crash, Russia, like other BRICS countries, recovered relatively quickly and, with its large market and apparent stability, from 2008 to 2010 it ranked among of the top ten FDI destinations for the EU.11 Membership of the WTO, which came into force in summer 2012, was another landmark of Russia’s integration into the world economy, and the same year Putin set ambitious targets for Russia to move up the World Bank’s Doing Business rankings.12 Following Russia’s annexation of Crimea and intervention in Ukraine, deterioration of relations with the West encouraged Moscow to turn east for new sources of invest- ment and new markets. Relations with China have steadily improved, notably in mili- tary affairs, and they have cooperated in various diplomatic initiatives. For instance, the BRICS forum has taken aim at the Bretton Woods system by promoting the use of currencies other than the dollar in energy-related trade.13 None of these manoeuvres seem likely to unseat the dollar as the most important global reserve currency; nor do they seem likely to change the fact the principal customer for Russia’s energy exports is the EU, but they do underline that Russia is an independent player. It has been argued that what emerged in Russia from neoliberal-inspired reforms in the 1990s was not a fully liberalised economy but a ‘partial reform equilibrium’ in which early winners—oligarchs, bankers, local bureaucrats, and criminal groups—were able to block further reform to preserve monopoly rents in their particular sectors; these groups were not interested in reversing reform, as that is what brought them wealth in the first place, only in blocking its further progress.14 The fact that oligarchs with established ties to the Kremlin can often block or impede market entry by com- petitors, whether foreign or domestic has led to the creation of a system described as ‘feudal’ by some critics.15 At the start of his rule in the early 2000s, Putin made a deal with the oligarchs, requiring their withdrawal from politics in exchange for his respect- ing the results of privatisation.16 Oligarchs have strong incentives to keep their side of the bargain because the state controls financial information. Any individual oligarch can be charged with criminal activity if he goes against Putin, as demonstrated by the fates of Khodorkovsky, Gusinsky, and Berezovsky. The state in return gets political sta- bility and stable revenues from its share of the oligarchs’ assets. At the same time, the president’s need for periodic renewal of his electoral mandate requires that he show concern and support for popular causes. Gaddy and Ickes claim that Russia is ‘addicted’ to the rents which derive from oil and gas and other primary resources: the term ‘addiction’ implies the need to subsidise backward production facili- ties for political reasons, and the system for managing these rents is ‘the key to the entire political economy’.17 The state thus continues to subsidise underperforming indus- tries, particularly in so-called ‘monotowns’, which have no alternative employment. JOURNAL OF CHINESE GOVERNANCE 311 Although neoliberal in its fiscal conservatism, liberalised prices and foreign trade, and willingness to respect the results of privatisation, the Russian regime would never apply this label to itself. Putin’s regime has carefully positioned itself as both the pro- tector of the Soviet legacy and as a modernising force. It cannot, therefore, afford to identify itself as neoliberal, and must continuously reconstruct the period of shock therapy as something that was imposed on Russia by outsiders, rather than as the period in which the current elite made their fortunes. A positive image of the Soviet past must be carefully cultivated while at the same time preventing its restoration in practice.18 In terms of social policy, Russia is somewhere ‘in between’ the Soviet era welfare state and the minimal welfare regime of a neoliberal state. Partly this has been achieved by allowing the value of Soviet-era benefits to erode, but also through delib- erate reform. Neoliberal ideas continue to be influential, but they are moderated by what has been described as a ‘market social contract’ featuring ‘targeted provision mostly to state-dependent social strata that have the potential for disruptive protest and can be mobilised to support Putin’s ‘Party of Power’’.19 Russian policy-makers still turn to Western sources for ideas about how to reform legacy systems of social secur- ity.20 Russian sociologists see their own social policy as ‘contradictory’, retaining ‘many of the outward features of socialism, resisting attempts of modernization and monet- ization at the legal level’ while also being ‘commercialised at the level of everyday life’.21 Like China, Russia is large, fiscally decentralised country; it has the highest level of decentralization among non-EU countries of Eastern Europe.22 Reform of the social security system and the transfer of responsibility for welfare from enterprises to the state have involved regional differentiation of most benefit levels.23 The pressure to reduce state involvement in welfare is ‘not so much ideological as budgetary’.24 To the extent that such a state can be described as neoliberal, it is of a ‘particular type’ incorporating as generic features high ownership concentration and high income and opportunity inequality, whereas its specific characteristic is the unprotected nature of private property for very large asset holdings, which in effect means that oligarchs must avoid independent political activity and serve the geopolitical interests of the Russian state.25 China and Neoliberalism ‘Neoliberalisation’ and ‘decentralisation’ are often seen as crucial aspects of the Chinese model of urbanisation.26 The party-state has changed its role from directly managing production to ‘regulation of the creation of social wealth’.27 This has involved marketiza- tion of production and exchange, and also decentralization of control, leading to the emergence of new local and state capitalist elites some of whom are tightly integrated into global supply chains.28 However, the role of local governments in directing invest- ment has meant that China’s development policy has also been described as ‘statist’ even if it relies on integration with regional and global markets.29 China has completed its transition to a market economy, but it has claimed all along to be building socialism, and has inculcated socialist norms in the population.30 China’s leaders have never accepted that neoliberalism and democracy can be allowed 312 N. MUNRO to replace their brand of Marxism–Leninism and authoritarian rule.31 In practice China is an ‘oligarchic corporate state’ with a ‘residual commitment to socialism’.32 ‘Socialism with Chinese characteristics’ combines with other nationalist, developmentalist, and authoritarian discourses in an ‘uneasy synthesis’ held together by the CPC.33 China’s brand of socialism serves to justify capitalist relations of production in China.34 Socialism with Chinese characteristics contains numerous hooks from which to hang demands for social justice and a failsafe justification for continuing state control over the economy. Chinese political economy is also incompatible with neoliberalism in a more funda- mental sense. Although neoclassical economics assume that property rights are abso- lute and appertain to the thing owned, property rights in China are bundles of rights subject to ongoing negotiation concerning mutual obligations.35 The Chinese system has been described as a market based not on private ownership but on decentralized public ownership, with multiple parties having supernumerary rights in addition to the nominal principal owner.36 In this perspective, the holders of supernumerary rights are not the source of mere ‘transaction costs’ or even the ‘rent-seekers’ of neoclassical the- ory, but fundamental to the way Chinese people think about property. An equivalent phenomenon exists in Russia in relation to very large assets, as pointed out above. Just as the distribution of rents from oil and gas is crucial to Russia’s political econ- omy, so land is the key to China’s political economy. The motor of development is urbanisation: between 1979 and 2011 the population living in urban areas increased from 17.9% to 51.3%.37 In the 1990s residential homes in urban areas were mostly ‘privatized’ on 30- to 50-year leases, sparking a speculative boom. Privatization of urban property benefited established urban citizens but created the usual problems associated with a property bubble. To create space for urban development, local gov- ernments pursued ‘land commodification’ involving rezoning prime land near to urban centres and selling the land use rights. This kind of process finances over 30% of total municipal budgetary revenue, and 40% of urban construction and maintenance.38 Local governments account for �70% of public expenditure but raise only �50% of public revenue, excluding revenue from land development.39 Numerous public pro- grammes important to political stability could not be financed without continuously rising land prices. Land commodification often involves displacement of rural citizens, who are often compensated far below the market price of ‘their’ land. However, from the state’s point of view, the land was never theirs: they merely farmed it on behalf of the state. At the same time, a substantial part of the population is denied equal access to public services such as schooling and healthcare on the basis that they have non-local hukou. These so-called ‘migrant workers’ are ensnared in ‘precarious temporary condi- tions, allowing companies to capitalize on an expendable labour power without bear- ing responsibility for its reproduction’.40 Specifically, migrants are subject to involuntary residential mobility when their districts are demolished as part of city- branding exercises, subject to economic loss from frequent moves, and denied access to local welfare and benefits including the opportunity to legally buy or rent subsi- dised public housing or to rent peasants’ self-built housing on the collectively owned land.41 Equalising access to welfare for all citizens is difficult for the Chinese state JOURNAL OF CHINESE GOVERNANCE 313 because the exploitation of migrant workers has been fundamental to the success of China’s economic model. China’s response to negative social consequences of reform (such as rising inequal- ity and impoverishment for sections of the population like redundant SOE workers and dispossessed peasants) has been to build up basic welfare provision. In China, the building of a welfare state took the form of the introduction of a minimum livelihood guarantee (dibao), which covered 21.4 million urban residents by 2012, and 53 million rural residents by 2013, the expansion of basic health insurance in rural areas through the New Cooperative Medical Scheme (NCMS), which extended insurance to �800 mil- lion people between 2003 and 2008, and the development of a pension scheme which aims to cover 700 million people in rural areas by 2020.42 In health care, the govern- ment had a change of heart: after first pursuing policies of retrenchment which led to an overall reduction in state support for healthcare in the 1980s and 1990s,43 it responded to not just popular pressure but also to ideas generated through an elite- level debate which pitted ‘pro-state’ against ‘pro-market’ positions.44 In the end, the pro-state side won the argument by convincing the leadership that increased state support for healthcare was not a burden to the economy but complementary to eco- nomic development and social stability goals.45 Although at first glance China’s efforts to build up a welfare state seem incompat- ible with neoliberalism, they can also be interpreted as a Polanyian ‘double move’— taking with one hand and giving with the other.46 Such a move is characteristic not just of China, but also of other developing countries. State-driven assistance pro- grammes in the Global South are not merely ‘ancillaries of neoliberal statecraft’ or ‘technology of top-down of social control’ but may, in fact, herald a new ‘welfare first’ approach to development: as such they are the double movement.47 Levien and Paret found that during the 1990s across 20 countries comprising a mix of developed indus- trial democracies, post-communist states, and middle income developing countries, there was a such a movement in favour of ‘re-embedding’ markets through state own- ership of enterprises and greater state responsibility for welfare.48 However, the same analysis also showed the ‘double movement’ is not an accur- ate description of what happened in Chinese public opinion, where support for state involvement/responsibility remained consistently high, and it was not evident in the public opinion of post-Communist countries, including Russia, where support for ‘re- embedding’ markets first rose steeply, presumably in reaction to shock therapy, then fell somewhat as people got used to the market (see below).49 In China, new local and state capitalist elites (leaders of both private and public enterprises) have under- gone a process of ‘embourgeoisement’, and workers and peasants have been per- suaded or coerced into accepting systemic economic change. The political bargain is thus not a simple exchange of welfare for stability; it involves the reimagining of the good life; workers and peasants are not just being compensated and coerced, but are being invited to reimagine themselves as domestic urban consumers within a market socialism, which is not opposed to global capitalism but an integral part of it.50 China’s ‘harmonious’ model of labour relations has led some authors to conclude that ‘neoliberalism and state corporatism are actually in harmony’.51 At the instigation 314 N. MUNRO of the Chinese government, the All-China Federation of Trade Unions (ACFTU) has pressured transnational corporations to cooperate in implementing a form of state corporatism in which trade unions work closely with management, without disrupting the usual practices of the corporation.52 Likewise, in environmental governance, although China’s centrally determined policies may often appear authoritarian and statist, on the ground they are often ‘light touch’, to the extent that enterprises acting in concert with local elites can select often which policies to implement and which to ignore.53 However, this is not the neoliberalism which Western economists have advo- cated, but rather an unintended outcome of China’s model of decentralised eco- nomic management. Comparing Russian and Chinese institutions Both countries have made a transition to a kind of capitalism, despite having espoused socialism for most of the second half of the twentieth century. China is a major exporter of manufactured goods and importer of primary raw materials. It is the second largest economy in the world, and increasingly an exporter of capital through foreign acquisi- tions and infrastructure projects. Russia is an exporter of primary raw materials, and importer of manufactured goods, which are classic characteristics of a ‘semi-peripheral’ state. It does not seem to have the capacity to grow its economy in a way that would allow it to join the capitalist core. As one scholar puts it ‘By 2030 Russia’s GDP as a per- centage of world GDP will be smaller than in 2012, and it will remain a country depend- ent on oil and gas exports; Russia will continue to have poor roads, a low level of medical and other services, high regional differentiation in living standards and capital flight’.54 The two countries thus represent different developmental trajectories. Comparing Russian and Chinese market social contracts reveals some similarities but more differences.55 In terms of similarities, industrial employment tends to be pro- tected through government intervention, at least for the largest and most strategic enterprises. Both regimes have shown themselves to be responsive to popular pres- sure in the form of protests, polls, and social media comment, as well as elections in Russia and petitions in China. In terms of differences, Russia has had relatively stable pension provision and healthcare coverage over the past two decades, whereas China is expanding rapidly in both areas. Russia tends to subsidise energy bills but not con- sumer goods, whereas China does the reverse. Finally, there are important ideological differences. Russia has embraced the market economy and a kind of managed democ- racy, whereas China professes to be building a ‘socialist market economy’. These ideo- logical differences are generally underexplored in the comparative literature, which tends to want to treat them both as examples of ‘emerging markets’, ‘authoritarian regimes’ or some other common category. As can be readily seen from official statistics, there is little difference between Russia and China in the way income is distributed across the society (Table 1). Both are highly unequal societies. China stands out in for having (in 2012) almost a fifth of the population living in poverty by the $3.20 a day standard. JOURNAL OF CHINESE GOVERNANCE 315 Public opinion on market justice in Russia and China As argued above, both countries have been influenced by neoliberalism, and market justice is a key component of neoliberal welfare ideology. Moreover, Western understandings of welfare ideology in Russia and China have also been heavily influ- enced by neoliberalism. This tendency is particularly evident in the body of scholarship that emerged from the data collection efforts of the early 1990s, including the ISJP. Martin Whyte’s The Myth of the Social Volcano is not the only work where market just- ice is explicitly or implicitly taken as the standard against which to evaluate Russian and Chinese ideologies.56 This body of research provides strong evidence that neither Russians nor Chinese regard inequality itself in a positive light. Comparable survey data from recent surveys suggest that large majorities in both countries believe the current income gap is too big.57 In 2014, 90% in Russia thought the gap was too big.58 Concern about the gap increased in Russia during its transformation to a market economy.59 In China, the extant survey evidence shows that concern about inequality remains high even though it appears to have moderated a little during the first decade of the twenty-first century.60 The usual normative response to inequality is to increase state welfare provision. For example, the 2008 Asia Barometer survey asked about whether government spending should increase, decrease or remain the same across 10 major areas of pub- lic policy. The results showed that citizens in six major Asia-Pacific countries, Australia, Japan, the US, China, Russia, and India all tended to favour increased government spending on health and education. However, China and Russia stood out for favouring increased government spending on almost all areas with, especially large majorities wanting more spending on the major welfare items of old age pensions, supported by 79% in China and 91% in Russia, and unemployment benefits, supported by 74% in China and 71% in Russia.61 The most comprehensive analysis of Chinese public opinion about distributional just- ice is by Whyte, who reports on a 2004 nationwide survey conducted by the Research Centre for Contemporary China (RCCC).62 Whyte’s study was intellectually influenced by the earlier ISJP surveys, as he makes clear in his acknowledgments, and many indicators are repeated, although combined in different ways to fit the patterns of correlation among the various measures in China. Whyte’s findings provide a justification for the view that the distribution of wealth in China is legitimate, at least compared with other post-socialist countries. For example, the ISJP and the 2004 China survey asked about possible reasons why there were poor people in the country.63 In China in 2004, only Table 1. Inequality measures in Russia and China, 2012� Russia China Gini index 40.7 42.2 Income share of top 20% 47.8 47.9 Income share of bottom 20% 6.3 5.2 Poverty headcount ratio at $3.20/day in 2011 PPP 0.3 20.1 �Source: World Bank, 2017. World Development Indicators Database. Accessed October 26, 2017. http://databank.worldbank. org/data/reports.aspx?source ¼2&series¼SI.POV.GINI&country¼# 316 N. MUNRO http://databank.worldbank.org/data/reports.aspx?source &hx003D;2&hx0026;series&hx003D;SI.POV.GINI&hx0026;country&hx003D;# http://databank.worldbank.org/data/reports.aspx?source &hx003D;2&hx0026;series&hx003D;SI.POV.GINI&hx0026;country&hx003D;# 21% mentioned an unfair economic structure as a reason, the least among all countries surveyed, compared with 73% in Russia in 1996. In China, only 28% mentioned unequal opportunity as a reason for poverty, compared with 61% of Russians. The market justice measures developed by ISJP, when applied to China provide robust evidence in support of Whyte’s contention that Chinese are relatively satisfied with the ways and means in which wealth and poverty are produced, and much more satisfied than Russians and some other East Europeans were in the mid-1990s. There is some evidence concurring with Whyte’s finding that Chinese are more will- ing to take responsibility for their own welfare than Russians. A study based on two waves of the World Values Survey between 2006 and 2012 found that on a 10-point scale where one means ‘People should take more responsibility to provide for themselves’ and 10 means ‘The government should take more responsibility to make sure everyone is provided for,’ the mean score in China was almost at the mid-point of the scale at 5.4 (standard deviation, s.d., 3.1) in 2007, rising to 6.4 (s.d. 2.6) in 2012; in Russia, the surveys of 2006 and 2011 produced mean scores of 7.6 (s.d. 2.8) and 7.9 (s.d. 2.6), respectively. Thus, in the mid to late 2000s Chinese were more likely to agree that people should look after themselves than Russians, although in both countries committed to this idea weakened over the period spanning the 2008–9 financial cri- sis.64 The 2006 Life in Transition Survey (LITS) showed that in Russia, 67% thought the state should be strongly involved in reducing inequality, 29% thought it should be moderately involved, and only 4% thought it should not be involved; whereas 94% thought extra welfare should be the first priority for extra government expenditures.65 Another point of contrast between the two countries concerns the distribution of support for state welfare across the society. Analyses based on representative sample surveys tend to concur that in Russia and the post-Soviet states more generally lower income people, women, and the less educated tend to support more state welfare.66 In China, there are no strong socio-demographic effects, other than the urban–rural divide, and contrary to the post-Soviet cases, it is urban Chinese who are more sup- portive of state welfare.67 As Whyte points out, despite being some of the least privi- leged members of society, Chinese farmers are less concerned about the size, harmful effects, and unfairness of the rich/poor gap.68 He explains these findings in relation to, first, the fact that the experience of market reform compared to ‘socialist serfdom’ has been generally positive for farmers; and second, by arguing that farmers’ comparator reference groups are likely to be within their own communities. Evidence that Chinese distributive justice attitudes are not the same as in Russia is also found in the way dif- ferent attitudes correlate. In China but not Russia, the belief that hard work is rewarded correlates positively with support for state welfare, as does the belief that wealth can grow so there is enough for everyone.69 The literature on Chinese welfare attitudes presents a puzzle in that people express high acceptance of the mechanisms that produce social inequalities while professing to dislike inequality itself. Russians, on the other hand, are much more critical of both inequality and its mechanisms. The next section looks in more detail at how Russians and Chinese explain current distributional patterns and their normative and emo- tional responses. JOURNAL OF CHINESE GOVERNANCE 317 Focus group discussions about distributive justice Our focus group discussion guide was initially drafted in English and then adapted in collaboration with local partners to suit their conditions. Consequently, moderators in the two countries did not use the same guides or raise all questions in the same order, but the broad outlines of the discussions were the same. The approach taken was to ask, first, about economic change in general terms, including both national and household economic conditions, about relevant comparator groups when assess- ing one’s own economic position, and how participants understood wealth and pov- erty. Second, the moderators broached the topic of the gap between the rich and poor, including perceptions of the fairness of income differences, the size of the gap, and drivers behind it. Third, moderators asked participants to comment on the norma- tive issues raised by income inequalities, such as the respective roles and responsibil- ities of the state and the individual, rich and poor, and government and business. The template discussion guide is in Appendix 1 and full details of the methodology and focus group transcripts may be obtained from the UK Data Archive.70 Recruitment focused mainly on provincial cities in both countries. In Russia, 12 focus groups with six to eight participants each were conducted in the cities of Ufa, Kaliningrad, Ekaterinburg, Tiumen’, Saratov, Ulyanovsk, Volgograd, Ivanovo, Irkutsk, Obolensk, Vladivostok, and Protvino. In China, discussions were held in Baoding, Changsha, Fuzhou, Luoyang, Mianyang, Shanghai, and Suzhou, as well one in Beijing and two in Guangzhou. Recruitment aimed to select adults of both genders from a range of ages and a mix of blue- and white-collar professions. In China, participants were in addition stratified by hukou so that five groups were conducted with partici- pants of mainly rural background (Baoding, Changsha, Fuzhou, Mianyang, and one of the Guangzhou discussions), and five for those with mainly urban backgrounds (Beijing, Luoyang, Shanghai, Suzhou, and the other Guangzhou group). To ensure that the voices of younger participants were heard, two focus groups in each country (Protvino, Ulyanovsk, Suzhou, and Baoding) were conducted for younger participants in their late teens and twenties. Participants whose views are cited are listed below in Appendix 2, with fictitious names to protect their identities. The discussion that follows is organised into two sub-sections: first, explanations of current distributional patterns, including economic structure, the prevailing ideology, willingness or ability to act dishonestly, and corrupt networks; second, emotional and normative reactions to the current distributional patterns, including acceptance of the principles of reward for effort (equity) and self-help, and feelings of powerlessness and frustration. Explanations of inequality Our Russian focus group respondents generally understood poverty as a structural problem. In Ivanovo, Liudmila Pavlovna, a pensioner in her seventies, described how whole sectors, such as the rural economy, or categories of people such as unskilled workers and pensioners, have not recovered from the market transition and are living in poverty, often demoralised. Their main asset is typically a house that cannot be sold because of its undesirable location, and many of them do piece work to survive. 318 N. MUNRO In the same group, Liubov’ Petrovna, another pensioner, said somewhat bitterly that there was no solution for these demoralised sectors except to die off. In Obolensk, Dmitry described how in some villages pensioners are considered better off because they can rely on a stable income. Russian respondents also demonstrated an understanding of how the balance of power in the work place had changed with the change of economic system. In Ufa, Leo, a senior technician in his fifties, explained that under capitalism, the worker is dependent on the boss for continuity of employment and losing a job results in dam- age to credit history, potentially losing a home, and so on. Under socialism, the onus was on the boss to find a way to enthuse workers. The result of the change of system was in his eyes a net loss of welfare to the workers. Chinese respondents were in general much less troubled by ideological debates about capitalism. They understood that they were living in a market economy that had brought huge changes, but perhaps because the Chinese government had always called this ‘socialism with Chinese characteristics’, they hardly ever mentioned the term capitalism. In Guangzhou, Mr Zhang pushed back against criticism that the state was monopolising certain sectors of the economy, saying that the state was merely continuing the socialist policy, which is that the state should control the main levers. In his eyes, individual wellbeing depended on the state and that was a good thing. Our Russian focus group respondents expressed huge doubts about whether it is possible to get rich honestly. In Irkutsk, Kseniya, a lawyer in her twenties flatly stated the opposite, that to get rich it is necessary to commit crimes. In Obolensk, Maria, a laboratory worker in her fifties thought it was necessary either to receive a windfall such as an inheritance or a lottery prize or else to enter a completely new market, such as an innovative, high technology sector, as Kaspersky had done. Even then an honest person could only thrive when the market was comparatively small. Her col- league, Dmitry, in his thirties, agreed: in a what he called a ‘competitive’ (konkurentny) market, corruption is inevitable. Across a range of discussions, diverse Russian respondents shared a belief that getting rich depends on the ability to play a game where dishonesty and corruption form part of the rule book. Our Chinese respondents were generally more positive about the possibility of get- ting rich honestly, although they, too, recognised endemic problems of corruption. In Beijing, Mr Lu, a company worker in his forties, cited such examples as unnecessary road repairs, and restaurants that openly declared they would not issue official receipts with their bills. Ms Peng, a businesswoman in her thirties, thought that get- ting rich often depends on good connections or luck, for example, by occupying valu- able property scheduled for demolition. Younger Chinese respondents seemed uncertain about the extent to which corrup- tion served as an inequality mechanism. In Baoding, Miss Pei, a university-educated manual worker in her twenties, felt that the tendency was towards greater transpar- ency, and cited the example of an elder sister who had passed civil service exams and seen how strictly they observed fairness. Another young woman in Baoding, Ms Zhuang, disagreed. She cited the example of an old friend’s younger brother working on the railway in Beijing. He could not get promotion even though he worked hard, because he lacked money and connections. In the same group, Mr Pan, another JOURNAL OF CHINESE GOVERNANCE 319 manual worker, expressed the view that it depended on the type of enterprise. In big state-run enterprises, you needed to rely on connections (guanxi) to get ahead. In China, older respondents often expressed a strong sense that ordinary people were being ripped off through corruption and ‘monopoly’ (longduan), so that money due to them would never reach them. For example, in Guangzhou, Mr Zhang, a pro- fessional in his fifties, described how flood victims at Dongting Lake were given just under seven yuan in compensation for flood damage. In Beijing, Mr Gao, an entrepre- neur in his sixties, grumbled that ruffians appeared to have gotten rich while honest hard work went unrewarded. Another Beijinger, Mr Lu, complained about strict enforcement of petty environmental laws, whereas big environmental crimes went unpunished, and he railed against corrupt officials and businessmen for breaking the law with impunity. In Shanghai, Ms Wang expressed her resentment about the privi- leges of civil servants in terms of retirement ages, pensions, and in having light work. Chinese respondents generally concurred that the gap between rich and poor was getting harder and harder to bridge. In Mianyang, Sichuan province, Mr Hao, an agri- cultural worker in his sixties, compared the difference between ordinary people and officials to that between ‘heaven and earth’. In Fuzhou, Ms Kang, a manual worker in her thirties, commented that the rich have taken off and lead lives which are unimaginable to ordinary people. There seemed to be two main reasons: first, wealthy families monopolise opportunities; second, individual careers are path dependent. In Guangzhou, Mr Guo, a businessman in his thirties, gave the example of his high school reunions, which were enjoyable in early years, but became less and less cohe- sive with each passing year as former classmates became stratified. A distinctive legacy of the Yeltsin-era reforms in Russia is that public sector workers are often considered to be relatively poor. Numerous focus group respondents associ- ated public service professions (teachers, doctors, scientists) with a life of poverty. In Ivanovo, Vadim felt that low public-sector salaries were not enough to live on, and the effects of low salaries were amplified by the practices of some local governments, who get around salary increases mandated by the central government by cutting employees’ hours. In Obolensk, Yegor Grigorevich, a pensioner in his sixties, contrasted this situation unfavourably with the relatively good quality of life workers had before the Soviet collapse. He felt unhappy with the way relative positions had changed, for example, responsible military officers and academicians receiving the same salary as a janitor. He pointed out that some enterprises no longer offer jobs but only hourly paid work in busy periods, thus undermining the possibility of ever training an effective workforce. There was also a strong belief among our respondents in both countries that all good money-making opportunities had already been taken during the early stages of reform. In Kaliningrad, Maksim, a bank manager in his thirties explained that in the Yeltsin era criminal structures or clans penetrated the state. In Guangzhou, Mr Guo explained that to the extent that ‘second generation rich’ (fuerdai) or ‘second gener- ation officials’ (fuerguan) worried about money, they were concerned with how to find a policy gap or hole (kongzi) that they could exploit. This was not easy as most of the best opportunities had already been taken or monopolised by well-connected groups. In these circumstances, the best ordinary people could hope for was to find a steady job so that their conscience was clear (wen xin wu kui). He expressed the view that 320 N. MUNRO cities which embarked on reforms early now had fewer opportunities, as they had all been ‘sewn up’ by early movers. Emotional and normative responses Russian and Chinese respondents generally acknowledged that inequities had occurred during economic reforms, but this did not mean they were ready to reject the market economy. For example, in Ivanovo, Marina, a teacher, and entrepreneur in her fifties, felt that if the 2000s was taken as the starting point, then the market had worked in a tolerably fair way because effort was rewarded. Similarly, in China, respondents expressed the belief that wealth depends on individual effort. In Luoyang, Ms Deng, a manual worker in her late forties recalled that even during the toughest period of retrenchment, Zhu Rongji’s reforms of the late 1990s/early 2000s, government policies were in place to encourage people to start their own businesses and some people did so successfully. Younger Russians were especially likely to express conventional preferences for self- help. In Ulyanovsk, Petr, a student in an engineering institute, supported the principle of absolute economic freedom—that everyone has the right to spend all their money as they wish. Irina, a humanities student at the local state university, agreed that everyone has a responsibility to provide for themselves. In Irkutsk, Ivan, a soldier in his thirties, resisted the idea that the rich should take responsibility for the poor, but was willing to make exceptions if the rich are oligarchs. Younger Chinese tended to agree with self-help as a principle but also credited government policy with creating the environment in which making money was pos- sible. In Baoding, Miss Pei looked at her parents’ generation and felt their efforts had little to do with the rewards they received, whereas for her generation an environment had been created where someone who started their own business could reap excep- tional rewards. Mr Bo, a manual worker, agreed that the country had given people a ‘platform’ (pingtai) but success or failure still depended on one’s own efforts. Focus group respondents in China often expressed feelings of powerlessness, com- plaining that they lacked voice even when defending legal rights. In Shanghai, Mr Hu, a company worker in his thirties, told of how his family had been denied compensa- tion for requisitioned land and were taken aback by the ineffectiveness of the peti- tions system, the ease with which officials fobbed them off or gave them the run around, and the seeming impossibility of ever getting justice. In Fuzhou, Ms Li, a pro- fessional in her forties, from a rural area, claimed that in the villages there was wide- spread distrust in local officials; it was thought that they embezzled funds for disaster relief and social security and engaged in vote buying. In Russia, there was considerable anger and envy towards rich people in general. In Ufa, Leo complained of a rural bakery boss who no longer treated workers as equals and even assaulted them with impunity. Some respondents described the disorienting revolution of values they experienced during the Soviet collapse and subsequent transformation. In Ivanovo, Vadim, an entertainer in his fifties, fondly remembered the days when musicians earned more than engineers. In Protvino, Aleksei, an engineer in his twenties, recalled resentment on a visit to Moscow when he saw two Muslims JOURNAL OF CHINESE GOVERNANCE 321 riding around in an expensive foreign car. In Ivanovo, Liubov’ Petrovna, a pensioner in her seventies, complained that show-business figures monopolise air time and do not deserve their wealth. In Obolensk, Maria complained that people in Moscow have much better services than people in the provinces. It was evident that for many younger Russian respondents, only ability and ruthless- ness determine wealth. In Ulyanovsk, for example, Irina negated the very idea of fair- ness. In Protvino, Aleksei reduced fairness to the idea of legality: if it was legal, it was fair. In Tiumen’, Anastasia, a freelance journalist in her twenties, expressed the view that every person is out for himself/herself and that life is a no-holds-barred fight for survival. Svetlana, a political science student in her late teens, defined all moral values as relative to the situation. For her, cleverness and cunning were elevated above moral values, justifying criminality to get what you want. In Obolensk, Maria expressed the view that morality was internal to the individual and unrelated to law. In Irkutsk, Boris, a young ‘sportsman’ in his early twenties thought that entertaining ideas of social fair- ness was a prerogative of the side which enjoys the power and is well provided for. In China, our focus group respondents expressed little of this kind of cynicism. Certainly, there was an acceptance that dishonesty is sometimes part and parcel of the way things work. For example, in Suzhou, Miss Yao, an IT worker in her early twen- ties, thought it normal to rip off someone else’s programme by just changing a few lines of code. However, when it came to more general aspects of morality, even young Chinese were more likely to bemoan the decline of honesty than celebrate it. For example, in the same city, Mr Yu, a manual worker in his early twenties, expressed concerns about the decline of community spirit amidst rising wealth. Although there were more and more Porsches on the street, the quality of foodstuffs and the environ- ment were declining and relations between people were becoming colder. Characteristic of older workers was the attitude expressed by Mr Shi, a Beijing migrant worker in his fifties, who was reluctant to compare himself with others and willing to accept his place in society, even if it was unfair. The closest any respondents came to openly espouse amorality was the frank admission by Ms Ma, a Fuzhou manual worker in her forties, that she would take bribes if she could, but did not have a high enough social position. Despair, pessimism, and anomic responses were general characteristics of the Russian focus group discussions. In Irkutsk, Artem, a businessman in his twenties, expressed the belief that social fairness cannot exist in Russia due to the mentality of its people; it can only exist elsewhere, such as in Scandinavian countries. In Irkutsk, Ol’ga, an architect in her twenties, had retreated into Buddhism and expressed her total indifference to the way in which society was developing. In the same group, Gennady, an engineer in his thirties, found meaning in trying to scale the ladder of consumerism: once one plane of consumption was reached, another higher plane became visible and became the new aspiration. On the positive side, younger Russian respondents often explicitly mentioned the possibility of learning from Western examples. In Protvino, Anna, a scientist in her twenties, expressed the hope that there might be a third way between capitalism and socialism. She hoped that Russia could draw on the ideological resources of USSR without returning to that system completely. In the same group, Vladimir, another 322 N. MUNRO young scientist in his twenties, thought Russia might selectively learn from the exam- ples of Western countries. In Kaliningrad, Maksim, a bank manager in his thirties, embraced liberal solutions, believing that the solution lies in simplifying regulation and giving encouragement to small and medium enterprises. However, In Irkutsk, Ivan, a soldier of the same age, thought only draconian laws could be effective in Russia, for example introducing severe physical punishments such as amputations to make people honest. Conclusions Recent research on Chinese and Russian institutions in relation to neoliberal prescrip- tions suggests the following general conclusions. First, the Chinese and Russian polit- ical economies are best described as in but not of the ‘neoliberal’ world order. They are embedded in it, in the sense that they are integrated with capitalist relations of production and global flows of trade and investment, but they are not of it, in the sense that neoliberalism comprises a set of ideas about governance which sustain a Western-dominated world order, which Russia and especially China increasingly seek to challenge. Of the two countries, Russia has gone further in adapting itself to that order, but it has not completely followed neoliberal prescriptions because of the pol- itical imperative to retain flexible property rights at the apex of the economy. The Soviet welfare state has been allowed to decay and has only partly been replaced by more targeted and less extensive systems of social security. China has integrated into global capitalism on its own terms. It has retained state control over the commanding heights but encouraged a private sector to develop through an export-oriented industrialisation strategy, which has only recently started to exhaust its potential. It is gradually expanding its welfare state, which combined with an explicitly socialist ideology, suggests that China is moving, slowly and after its own manner, in the opposite direction to Russia. Chinese distributive justice attitudes do not look like those of a post-Soviet state for two reasons. First, the socio-political cleavages over welfare questions are differ- ent. In Russia, the patterns of determination of support for state welfare ‘make sense’ in that the least privileged sectors of society are on the left and the most privileged on the right. In China, the only important socio-political cleavage affecting welfare values is the urban–rural divide, and the less privileged rural respondents often fall on the ‘wrong side’ of the question by failing to demand state support. Chinese respondents tend to think of responsibility for welfare as shared between the state and the individual, whereas Russians tend to fall on either one side or the other, with little middle ground. The term ‘social Darwinism’ describes a world view that applies ideas of natural selection to social groups and individuals, such that only the most well-adapted human beings (or groups) survive and thus reproduce themselves, either in the bio- logical sense or in the social sense of being successful.71 Such a world view was evi- dent in our focus group discussions, particularly among younger Russian respondents. A transactional, amoral approach to getting things done in Russia has been well docu- mented in other research, including public opinion surveys that specifically ask about JOURNAL OF CHINESE GOVERNANCE 323 the use of bribery and connections to engage with public services.72 Transactional approaches to public services are also found in China. It has been shown through public opinion surveys that around a quarter of Chinese espouse the use of connec- tions to get government permits73 and to secure better treatment in hospitals.74 Social Darwinism can be described as the ugly twin sister of market justice, in the sense that while both concepts contain the presumption that people should look after themselves, market justice assumes a normative framework based on the rule of law, whereas social Darwinism assumes that the only effective law is that of supply and demand. As a normative theory, it assumes that people should do ‘whatever it takes’ to get ahead. Social Darwinism may offer an alternative to market justice as a key con- cept in understanding distributive justice attitudes in Russia and China. Measurement is impossible without concepts, and the concepts with which we approach a problem can often determine the conclusions we reach. Neither in Russia nor China does the concept of market justice offers a good fit with lived experience, but the broad conceptual framework of market justice is more suited to Russia than China because of Russia’s explicit embrace of neoliberal ideology in the 1990s. Chinese views of distributive justice are more communitarian, in the sense that responsibility is shared. Using the concept of market justice to organise our under- standing of Chinese public opinion on distributive justice issues is therefore likely to lead to misleading conclusions. Further qualitative research is needed to identify the concepts that organise dis- tributive justice attitudes in Russian and Chinese discourses, and to describe their roles in justifying public policy. Using such an approach, it should be possible to step out- side or critique the neoliberal framework and offer interpretations of Russian and Chinese public opinion, which are better grounded in their national political and cul- tural contexts. From there it should be possible to develop new quantitative studies, which will allow us to understand Chinese and Russian distributive justice attitudes in a more nuanced manner and to form more accurate appraisals of the direction of their development. Notes 1. Nonini, “Is China Becoming Neoliberal?” 149f. 2. Nafziger, Economic Development, 146. 3. Raphael and Stokes, “US Oil Strategy in the Caspian Basin,” 187. 4. Lane, “Market Justice, Political Justice,” 385. 5. Kluegel et al, “The Legitimation of Capitalism in the Postcommunist Transition,” 251–283. 6. Ibid, 252f. 7. Klimina, “The Futility of the Neoliberal Policy of Deliberate Market Construction and the Promise of an Institutionalist Alternative,” 415. 8. Bank, Russia Economic Report (April), 55. 9. Gaddy and Ickes, “Russia after the Global Financial Crisis,” 292. 10. Newell and Simeone, “Russia’s Forests in a Global Economy,” 40. 11. Ledyaeva et al, “The Global Economic Crisis and Foreign Investment in Russia from the EU: Empirical Evidence from Firm-Level Data,” 773. 12. Ibid, 773. 13. Finch, “The Kremlin’s Economic Checkmate Manoeuvre,” 187–191. 14. Hellman, “Winners Take All,” 203–234. 324 N. MUNRO 15. Shlapentokh and Woods, Contemporary Russia as a Feudal Society. 16. Gaddy and Ickes, “Russia after the Global Financial Crisis,” 299. 17. Ibid, 282. 18. Munro, “Russia’s Persistent Communist Legacy,” 289–313. 19. Cook and Dimitrov, “The Social Contract Revisited,” 9. 20. Tikhomirova, “Issues of Formation and Use of Financial Resources of the Social Welfare System (Case Study of the Komi Republic),” 160. 21. Grigoryeva et al, “Inequalities in Eligibility for Social Care,” 321. 22. Aristovnik, “Fiscal Decentralization in Eastern Europe,” 5–22. 23. Wengle and Rasell, “The Monetisation of L’goty,” 744. 24. Grigoryeva et al, “Inequalities in Eligibility for Social Care,” 321. 25. Klimina, “The Futility of the Neoliberal Policy of Deliberate Market Construction and the Promise of an Institutionalist Alternative,” 415f. 26. Wang and Liu, “How Unique is ‘China Model’,” 102. 27. Nonini, “Is China becoming Neoliberal?” 145. 28. Ibid, 157f. 29. Gereffi, “Development Models and Industrial Upgrading in China and Mexico,” 37. 30. Holbig, “Ideology After the End of Ideology,” 61–81. 31. Haila, “The Market as the New Emperor,” 15. 32. Nonini, “Is China becoming Neoliberal?” 145. 33. Ibid, 152. 34. Ibid, 152. 35. Lash, “Against Institutionalism,” 568. 36. Haila, “The market as the New Emperor,” 15. 37. Lin and Zhang, “Emerging Spaces of Neoliberal Urbanism in China: Land Commodification, Municipal Finance and Local Economic Growth in Prefecture-Level Cities,” 2275. 38. Ibid, 2274. 39. Ibid, 2277. 40. Simpson, “Macau Metropolis and Mental Life,” 828. 41. Liu et al, “Low-wage Migrants in Northwestern Beijing, China,” 352–371. 42. Harris and Scully, “A Hidden Counter-Movement?” 431f. 43. Duckett, The Chinese State’s Retreat from Health. 44. Duckett and Langer, “Populism versus Neo-liberalism,” 653–680. 45. Duckett and Wang, “Why do Authoritarian Regimes Provide Public Goods?” 95. 46. Nonini, “Is China Becoming Neoliberal?” 159. 47. Harris and Scully, “A Hidden Counter-movement?” 417. 48. Levien and Paret, “A Second Double Movement?” 736ff. 49. Ibid, 736ff. 50. Simpson, “Macau Metropolis and Mental Life,” 827. 51. He and Xie, “Wal-Mart’s Trade Union in China,” 437. 52. Ibid, 430. 53. Lo, “How Authoritarian is the Environmental Governance of China?” 157. 54. Wegren, “Human Capital and Russia’s Agricultural Future,” 543. 55. Cook and Dimitrov, “The Social Contract Revisited,” 8–26. 56. See also Kluegel et al., “The Legitimation of Capitalism;” Gibson, “Political and Economic Markets;” Stephenson and Khakhulina, “Russia: Changing Perceptions;” McAllister and White, “Economic Change and Public Support;” and Munro, “Predictors of Support.” 57. Whyte, Myth of the Social Volcano, 44. 58. White, S. and I. McAllister. “University of Glasgow & ANU Russia Survey.” conducted by R- Research Ltd, 25 January to 17 February 2014 with 1601 respondents, variable B11. 59. Stephenson and Khakhulina, “Russia: Changing Perceptions of Social Justice,” 77–97. 60. Whyte and Im, “Is the Social Volcano Still Dormant?” 66. 61. Park, “Public Attitudes toward Government Spending in the Asia-Pacific Region,” 85. 62. Whyte, Myth of the Social Volcano. JOURNAL OF CHINESE GOVERNANCE 325 63. Ibid, 73. 64. Munro, “Predictors of Support for State Social Welfare Provision in Russia and China,” 60. 65. Habibov, “Who Wants to Redistribute? An Analysis of 14 Post-Soviet Nations,” 274. 66. Park, “Public Attitudes toward Government Spending in the Asia-Pacific Region,” 9; Munro, “Predictors of Support for State Social Welfare Provision in Russia and China,” 6; Habibov, “Who Wants to Redistribute? An Analysis of 14 Post-Soviet Nations,” 276. 67. Munro, “Predictors of Support for State Social Welfare Provision in Russia and China,” 67. 68. Whyte, Myth of The Social Volcano, 196. 69. Munro, “Predictors of Support for State Social Welfare Provision in Russia and China,” 67. 70. Rising powers Part 1 - Social equality forum China: Focus group transcripts. (Data catalogue. UK Data Service. SN: 852589, Accessed April 25, 2017). http://doi.org/10.5255/ UKDA-SN-852589; Rising powers Part 2 - Social equality forum Russia: Focus group transcripts. (Data catalogue. UK Data Service. SN: 852592, Accessed April 25, 2017). http:// doi.org/10.5255/UKDA-SN-852592. 71. Hawkins, Social Darwinism in European and American thought, 1860-1945, 31. 72. Rose, “Getting Things Done in an Anti-Modern Society,” 147–171. 73. Munro, “Connections, Paperwork and Passivity,” 147–175. 74. Munro, Chinese Strategies for Getting Health Care. Disclosure statement No potential conflict of interest was reported by the authors. Funding This work was supported by the Economic and Social Research Council [Grant number ES/ J012688/1]. Notes on contributor Neil Munro is Senior Lecturer in Chinese Politics at the University of Glasgow. He holds a BA (combined honours) in Chinese and Russian (Queensland, 1990) and a PhD in public policy from University of Strathclyde (2004). He has a comparative interest in participation in governance in post-communist societies, and has published on a wide range of themes ranging from accept- ance of bureaucratic norms through national identity, regime legitimacy, and social cohesion. His current research focuses on these and other issues in relation to social and environmental policies in China. References Aristovnik, A. “Fiscal Decentralization in Eastern Europe: Trends and Selected Issues.” Transylvanian Review of Administrative Sciences, no. 37E (2012): 5–22. http://rtsa.ro/tras/index. php/tras/article/view/69 Cook, L. J, and M. K. Dimitrov. “The Social Contract Revisited: Evidence from Communist and State Capitalist Economies.” [In English]. Europe-Asia Studies 69, no. 1 (2017): 8–26. DOI: 10.1080/09668136.2016.1267714 Duckett, J. The Chinese State’s Retreat from Health: Policy and the Politics of Retrenchment. London: Routledge, 2011. Duckett, J., and G. H. Wang. “Why Do Authoritarian Regimes Provide Public Goods? Policy Communities, External Shocks and Ideas in China’s Rural Social Policy Making.” Europe-Asia Studies 69, no. 1 (2017): 92–109. DOI: 10.1080/09668136.2016.1274379 326 N. MUNRO http://doi.org/10.5255/UKDA-SN-852589 http://doi.org/10.5255/UKDA-SN-852589 http://doi.org/10.5255/UKDA-SN-852592 http://doi.org/10.5255/UKDA-SN-852592 http://rtsa.ro/tras/index.php/tras/article/view/69 http://rtsa.ro/tras/index.php/tras/article/view/69 https://doi.org/10.1080/09668136.2016.1267714 https://doi.org/10.1080/09668136.2016.1274379 Duckett, J. and A. Langer. “Populism Versus Neo-Liberalism: Diversity and Ideology in the Chinese Media’s Reporting of Health System Reform.” Modern China 39, no. 6 (2013): 653–680. DOI: 10.1177/0097700413492602 Finch, R. “The Kremlin’s Economic Checkmate Manoeuvre.” Problems of Post-Communism 62, no. 3 (2015): 187–191. DOI: 10.1080/10758216.2015.1022392 Gaddy, C. G, and B. W. Ickes. “Russia after the Global Financial Crisis.” Eurasian Geography and Economics 51, no. 3 (2010): 281–311. DOI: 10.2747/1539-7216.51.3.281 Gereffi, G. “Development Models and Industrial Upgrading in China and Mexico.” European Sociological Review 25, no. 1 (2009): 37–51. DOI: 10.1093/Esr/Jcn034 Gibson, James L. “Political and Economic Markets: Changes in the Connections between Attitudes to Political Democracy and a Market Economy within the Mass Culture of Russia and Ukraine.” Journal of Politics 58, no. 4 (1996): 954–984. DOI: 10.2307/2960145 Grigoryeva, I, I. Pervova, and A. Smirnova. “Inequalities in Eligibility for Social Care: An International Context.” Journal of Social Policy Studies 13, no. 2 (2015): 317–330. https:// jsps.hse.ru/article/view/3323 Habibov, N. “Who Wants to Redistribute? An Analysis of 14 Post-Soviet Nations.” Social Policy and Administration 47, no. 3 (2013): 262–286. DOI: 10.1111/j.1467-9515.2011.00834.x Haila, A. “The Market as the New Emperor.” International Journal of Urban and Regional Research 31, no. 1 (2007): 3–20. DOI: 10.1111/j.1468-2427.2007.00703.x Harris, K, and B. Scully. “A Hidden Counter-Movement? Precarity, Politics, and Social Protection before and Beyond the Neoliberal Era.” Theory and Society 44, no. 5 (2015): 415–444. DOI: 10.1007/s11186-015-9256-5 Hawkins, M. Social Darwinism in European and American Thought, 1860-1945. Cambridge: Cambridge University Press, 1997. He, B. G, and Y. H. Xie. “Wal-Mart’s Trade Union in China.” Economic and Industrial Democracy 33, no. 3 (2012): 421–440. DOI: 10.1177/0143831x11411327 Hellman, J. “Winners Take All: The Politics of Partial Reform in Postcommunist Transitions.” World Politics 50, no. 2 (1998): 203–234. muse.jhu.edu/article/36396 Holbig, H, “Ideology after the end of ideology. China and the quest for autocratic legitimation.” Democratization 20, no. 1 (2013): 61–81. DOI: 10.1080/13510347.2013.738862 Klimina, A. “The Futility of the Neoliberal Policy of Deliberate Market Construction and the Promise of an Institutionalist Alternative: The Case of Russia’s Authoritarian Transition.” Journal of Economic Issues 45, no. 2 (2011): 411–419. DOI: 10.2753/Jei0021-3624450218 Kluegel, J. R, D. S. Mason, and B. Wegener. “The Legitimation of Capitalism in the Postcommunist Transition – Public Opinion About Market Justice, 1991-1996.” European Sociological Review 15, no. 3 (1999): 251–283. DOI: 10.1093/oxfordjournals.esr.a018263 Lane, D. “Post-Socialist States and the World Economy: The Impact of Global Economic Crisis.” Historical Social Research-Historische Sozialforschung 35, no. 2 (2010): 218–241. www.jstor.org/ stable/20762457 Lane, R. E. “Market Justice, Political Justice.” American Political Science Review 80, no. 2 (1986): 383–402. DOI: 10.2307/1958264 Lash, S. “Against Institutionalism.” International Journal of Urban and Regional Research 33, no. 2 (2009): 567–71. DOI: 10.1111/j.1468-2427.2009.00885.x Ledyaeva, S, P. Karhunen, and R. Kosonen. “The Global Economic Crisis and Foreign Investment in Russia from the Eu: Empirical Evidence from Firm-Level Data.” Eurasian Geography and Economics 53, no. 6 (2012): 772–789. DOI: 10.2747/1539-7216.53.6.772 Levien, M, and M. Paret. “A Second Double Movement? Polanyi and Shifting Global Opinions on Neoliberalism.” International Sociology 27, no. 6 (2012): 724–744. DOI: 10.1177/ 0268580912444891 Lin, G. C. S, and A. Y. Zhang. “Emerging Spaces of Neoliberal Urbanism in China: Land Commodification, Municipal Finance and Local Economic Growth in Prefecture-Level Cities.” Urban Studies 52, no. 15 (2015): 2774–2798. DOI: 10.1177/0042098014528549 JOURNAL OF CHINESE GOVERNANCE 327 https://doi.org/10.1177/0097700413492602 https://doi.org/10.1080/10758216.2015.1022392 https://doi.org/ 10.2747/1539-7216.51.3.281 https://doi.org/10.1093/Esr/Jcn034 https://doi.org/10.2307/2960145 https://jsps.hse.ru/article/view/3323 https://jsps.hse.ru/article/view/3323 https://doi.org/10.1111/j.1467-9515.2011.00834.x https://doi.org/10.1111/j.1468-2427.2007.00703.x https://doi.org/10.1007/s11186-015-9256-5 https://doi.org/10.1177/0143831x11411327 http://muse.jhu.edu/article/36396 https://doi.org/10.1080/13510347.2013.738862 https://doi.org/10.2753/Jei0021-3624450218 https://doi.org/10.1093/oxfordjournals.esr.a018263 http://www.jstor.org/stable/20762457 http://www.jstor.org/stable/20762457 https://doi.org/10.2307/1958264 https://doi.org/10.1111/j.1468-2427.2009.00885.x https://doi.org/10.2747/1539-7216.53.6.772 https://doi.org/10.1177/0268580912444891 https://doi.org/10.1177/0268580912444891 https://doi.org/10.1177/0042098014528549 Liu, R, T. C. Wong, and S. H. Liu. “Low-Wage Migrants in Northwestern Beijing, China: The Hikers in the Urbanisation and Growth Process.” Asia Pacific Viewpoint 54, no. 3 (2013): 352–371. DOI: 10.1111/apv.12029 Lo, K. “How Authoritarian Is the Environmental Governance of China?” Environmental Science and Policy 54 (2015): 152–159. DOI: 10.1016/j.envsci.2015.06.001 McAllister, I. and S. White. “Economic Change and Public Support for Democracy in China and Russia.” Europe-Asia Studies 69, no. 1 (2017): 76–91. DOI: 10.1080/09668136.2016.1265643 Munro, N. “Russia’s Persistent Communist Legacy: Nostalgia, Reaction and Reactionary Expectations.” Post-Soviet Affairs 22, no. 4 (2006): 289–313. DOI: 10.2747/1060-586X.22.4.289 Munro, N. “Connections, Paperwork and Passivity: Strategies of Popular Engagement with the Chinese Bureaucracy.” The China Journal 68 (2012): 147–175. DOI: 10.1086/666576 Munro, N. Chinese Strategies for Getting Health Care: Guanxi and Its Alternatives. Studies in Public Policy No. 501. Glasgow: University of Strathclyde, 2013. Munro, N. “Predictors of Support for State Social Welfare Provision in Russia and China.” Europe- Asia Studies 69, no. 1 (2017): 53–75. DOI: 10.1080/09668136.2016.1265643 Nafziger, E. W. Economic Development. 5th ed. New York: Cambridge University Press, 2012. Newell, J. P, and J. Simeone. “Russia’s Forests in a Global Economy: How Consumption Drives Environmental Change.” Eurasian Geography and Economics 55, no. 1 (2014): 37–70. DOI: 10.1080/15387216.2014.926254 Nonini, D.M. “Is China Becoming Neoliberal?” Critique of Anthropology 28, no. 2 (2008): 145–176. DOI: 10.1177/0308275X08091364 Park, C. M. “Public Attitudes toward Government Spending in the Asia-Pacific Region.” Japanese Journal of Political Science 11 (2010): 77–97. DOI: 10.1017/S1468109909990144 Raphael, S, and D. Stokes. “Us Oil Strategy in the Caspian Basin: Hegemony through Interdependence.” International Relations 28, no. 2 (2014): 183–206. DOI: 10.1177/ 0047117813517911 Rose, R. ”Getting Things Done in an Anti-Modern Society: Social Capital Networks in Russia.” In Social Capital: A Multifaceted Perspective, edited by Partha Dasgupta and Ismail Serageldin, 147–171. Washington, D.C.: World Bank, 1999. Shevtsova, L. F. Russia Lost in Transition the Yeltsin and Putin Legacies. Washington, DC: Carnegie Endowment for International Peace, 2007. Shlapentokh, V. and J. Woods. Contemporary Russia as a Feudal Society: A New Perspective on the Post-Soviet Era. New York: Palgrave Macmillan, 2008. Simpson, T. “Macau Metropolis and Mental Life: Interior Urbanism and the Chinese Imaginary.” International Journal of Urban and Regional Research 38, no. 3 (2014): 823–842. DOI: 10.1111/ 1468-2427.12139 Stephenson, S. and L. Khakhulina. “Russia: Changing Perceptions of Social Justice.” In Marketing Democracy: Changing Opinion About Inequality and Politics in East Central Europe, edited by David S. Mason and James R. Kluegel, 77–97. Lanham, Maryland: Rowman & Littlefield Publishers, 2000. Tikhomirova, V. V. “Issues of Formation and Use of Financial Resources of the Social Welfare System (Case Study of the Komi Republic).” Economic and Social Changes-Facts Trends Forecast 47, no. 5 (2016): 158–172. DOI: 10.15838/esc/2016.5.47.9 Wang, F. L, and Y. G. Liu. “How Unique Is ‘China Model’: A Review of Theoretical Perspectives on China’s Urbanization in Anglophone Literature.” Chinese Geographical Science 25, no. 1 (2015): 98–112. DOI: 10.1007/s11769-014-0713-2 Wegren, S. K. “Human Capital and Russia’s Agricultural Future.” Post-Communist Economies 26, no. 4 (2014): 537–54. DOI: 10.1080/14631377.2014.964467 Wengle, S. and M. Rasell. “The Monetisation of L’goty: Changing Patterns of Welfare Politics and Provision in Russia.” Europe-Asia Studies 60, no. 5 (2008): 739–756. DOI: 10.1080/ 09668130802085125 Whyte, M.K. Myth of the Social Volcano: Perceptions of Inequality and Distributive Justice in Contemporary China. Stanford: Stanford University Press, 2010. 328 N. MUNRO https://doi.org/10.1111/apv.12029 https://doi.org/10.1016/j.envsci.2015.06.001 https://doi.org/10.1080/09668136.2016.1265643 https://doi.org/10.2747/1060-586X.22.4.289 https://doi.org/10.1086/666576 https://doi.org/10.1080/09668136.2016.1265643 https://doi.org/10.1080/15387216.2014.926254 https://doi.org/10.1177/0308275X08091364 https://doi.org/10.1017/S1468109909990144 https://doi.org/10.1177/0047117813517911 https://doi.org/10.1177/0047117813517911 https://doi.org/10.1111/1468-2427.12139 https://doi.org/10.1111/1468-2427.12139 https://doi.org/10.15838/esc/2016.5.47.9 https://doi.org/10.1007/s11769-014-0713-2 https://doi.org/10.1080/14631377.2014.964467 https://doi.org/10.1080/09668130802085125 https://doi.org/10.1080/09668130802085125 Whyte, M. K. and D. K. Im. “Is the Social Volcano Still Dormant? Trends in Chinese Attitudes Toward Inequality.” Social Science Research 48 (2014): 62–76. DOI: 10.1016/ j.ssresearch.2014.05.008 World Bank. Russia Economic Report (April). Washington DC: World Bank, 2016. Appendix 1. Discussion guide Economic change A1. First, I would like to hear your views about economic matters: How about our country’s economy? Is it getting better or worse? Why? Who is most responsible for that? A2. In the past five years, has your family started to live better, worse, or has it stayed on the same level? What did you do to make this happen? A3. Do you think your family’s standard of living depends mainly on the national economy or mainly on your own luck and effort? A4. Do you consider yourself rich, poor, or average? A5. With whom do you compare yourself when you assess your own material condition? What kind of person do you consider richer than you? What kind of person is poorer? What kind of person lives at about the same level as you? A5a. So far, we havve talked mainly about income. What about other types of benefits like access to education? What about healthcare? A6. How would you define rich? What kind of person is a rich person for you? A7. How would you define poor? What kind of person is a poor person for you? Social fairness B1. How fair is it that some people are much worse off, poorer than you? Why? In what sense is it fair or unfair? B1a. (If the issue has not come up already.) So far, we have mainly talked about people in this city. What about people in the villages? What about people in other regions of China? B2. How fair is it that some are a lot richer than you? Why? In what sense is it fair or unfair? B3. What about social and economic differences between rich and poor? Are they increasing or decreasing? Why is that? Welfare values C1. Do you think that people who are rich (a lot more well off than you) should take more responsibility for those who are poorer than them? C2. Do you feel you should take more responsibility for those who are much worse off than you? C3. Do you feel ever obliged to help the poor? What do you do in such a situation? C4. Do you see a role for the state in ensuring that people’s incomes do not differ too much? How can this be done? C4a. What about the role of business? Do you think business plays a positive role in govern- ment decision-making in China? Why or why not? C5. What else can be done to make our society fairer? Appendix 2. List of Focus Group Discussion (FGD) participants whose views are cited NB: To protect the identities of participants, all names are fictitious. Following conventions used in the discussions themselves, Russians are identified by first names or first names and patro- nymics for older participants, and Chinese are identified by surnames, preceded by a title to sig- nify gender. JOURNAL OF CHINESE GOVERNANCE 329 https://doi.org/10.1016/j.ssresearch.2014.05.008 https://doi.org/10.1016/j.ssresearch.2014.05.008 Russia Aleksei, an engineer in his twenties, Protvino Anastasia, a freelance journalist in her twenties, Tiumen’ Anna, a scientist in her twenties, Protvino Artem, a businessman in his twenties, Irkutsk Boris, a young ‘sportsman’ in his early twenties, Irkutsk Dmitry, a laboratory worker in his thirties, Obolensk Gennady, an engineer in his thirties, Irkutsk Irina, a humanities student in her twenties, Ulyanovsk Ivan, a soldier in his thirties, Irkutsk Kseniya, a lawyer in her twenties, Irkutsk Leo, a senior technician in his fifties, Ufa Liubov’ Petrovna, a pensioner in her seventies, Ivanovo Liudmila Pavlovna, a pensioner in her seventies, Ivanovo Maksim, a bank manager in his thirties, Kaliningrad Maria, a laboratory worker in her fifties, Obolensk Marina, a teacher and entrepreneur in her fifties, Ivanovo Ol’ga, an architect in her twenties, Irkutsk Petr, a student in an engineering institute in his early twenties, Ulyanovsk Svetlana, a political science student in her late teens, Tiumen’ Vadim, an entertainer in his fifties, Ivanovo Vladimir, a young scientist in his twenties, Protvino Yegor Grigor’evich, a pensioner in his sixties, Obolensk China Mr Bo, a manual worker in his late twenties, Baoding Ms Deng, a manual worker in her late forties, Luoyang Mr Gao, an entrepreneur in his sixties, Beijing Mr Guo, a businessman in his thirties, Guangzhou Mr Hao, an agricultural worker in his sixties, Mianyang Mr Hu, a company worker in his thirties, Shanghai Ms Kang, a manual worker in her thirties, Fuzhou Ms Li, a professional in her forties, Fuzhou Mr Lu, a company worker in his forties, Beijing Ms Ma, a manual worker in her forties, Fuzhou Mr Pan, a manual worker in his late twenties, Baoding Ms Pei, a manual worker in her early twenties, Baoding Ms Peng, a businesswoman in her thirties, Beijing Mr Shi, a migrant worker in his fifties, Beijing Ms Wang, a migrant worker in her thirties, Shanghai Ms Yao, a professional in her early twenties, Suzhou Mr Yu, manual service worker in his early twenties, Suzhou Mr Zhang, a professional in his fifties, Guangzhou Ms Zhuang, a manual worker in her late twenties, Baoding. 330 N. MUNRO Abstract Introduction Russia and Neoliberalism China and Neoliberalism Comparing Russian and Chinese institutions Public opinion on market justice in Russia and China Focus group discussions about distributive justice Explanations of inequality Emotional and normative responses Conclusions Disclosure statement Notes on contributor References app1 app2 
work_ocuwk2ekafdsbomtc63xts7hje	----	College of Liberal Arts and Sciences | CU Denver Skip to Content University of Colorado Denver Denver Webmail | UCD Access | Canvas | Search Quick Links Locations CU Denver CU Anschutz Medical Campus CU South Denver CU Online Tools Webmail UCDAccess Canvas Directory A-Z Faculty & Staff Auraria Library Health Sciences Library Schools and Colleges CU Denver College of Architecture and Planning College of Arts and Media Business School School of Education and Human Development College of Engineering and Applied Science Graduate School College of Liberal Arts and Sciences School of Public Affairs CU Anschutz Medical Campus School of Dental Medicine Graduate School School of Medicine College of Nursing Skaggs School of Pharmacy and Pharmaceutical Sciences Colorado School of Public Health Search Enter the terms you wish to search for. CLAS Ucdenver.edu Other ways to search: University Directory Campus Map Close College of Liberal Arts and Sciences College of Liberal Arts and Sciences Menu Main menu Home About Us Programs Hot Topics Research & Creative Activities Advising & Resources Community & Outreach News & Events Secondary Menu Faculty & Staff CLAS Deans Notes Human Resources Mobile menu Home About Us Programs Hot Topics Research & Creative Activities Advising & Resources Community & Outreach News & Events Faculty & Staff CLAS Deans Notes Human Resources CLAS Virtual Support & Assistance >> Contact Us Loaner Laptops Available Contact CLAS IT Home 3 Learn and Prepare At CU Denver, our liberal arts and sciences education is focused on helping find answers to the most inspiring and challenging questions of our modern world. With over 75 major and minor degree programs to choose from, we give students the chance to explore the issues that matter most to them in ways that transcend traditional academic boundaries. Our world-class faculty include students at all levels in classrooms, research, and creative activities. Apply Now Topics to Explore Programs to Choose Global Health and Disease Spread Climate Change Social Justice Globalization/ Sustainability Racial Bias/ Anti-Racism Diversity and Inclusion Big Data/ Privacy/ Security Gender/ Wage Gap Gun Violence Humanities English Degrees Offered: B.A., Minor, M.A., Graduate Certificate History Degrees Offered: B.A., Minor, Undergraduate Certificate, M.A., Graduate Certificate Modern Languages Degrees Offered: B.A., Minor, Undergraduate Certificate, M.A. Philosophy Degrees Offered: B.A., Minor, Undergraduate Certificate Integrated Sciences Anthropology Degrees Offered: B.A., Minor, M.A. Geography and Environmental Sciences Degrees Offered: B.A., Minor, Undergraduate Certificate, M.A., M.S., Graduate Certificate Health and Behavioral Sciences Public Health Degrees Offered: B.A., B.S., Minor, MPH | Graduate Degrees Offered: MPH, Ph.D. Psychology Degrees Offered: B.A., B.S., Minor, Ph.D. Interdisciplinary Individually Structured Major Construct a degree program with coursework in different disciplines and in several combinations. Interdisciplinary Studies Degrees Offered: B.A., Minor, M.A., M.H., M.S., MSS, Graduate Certificate across various disciplines International Studies Degrees Offered: B.A., Minor, Peace Corps Prep certificate Social Sciences Communication Degrees Offered: B.A., Minor, Undergraduate Certificate, M.A., Graduate Certificate Economics Degrees Offered: B.A., B.S., Minor, M.A., MPA, M.S., Ph.D. Ethnic Studies Degrees Offered: B.A., Minor, Undergraduate Certificate Political Science Degrees Offered: B.A., Minor, Undergraduate Certificate, M.A., MBA, Graduate Certificate Sociology Degrees Offered: B.A., Minor, Undergraduate Certificate, M.A. Natural and Physical Sciences Chemistry Degrees Offered: B.S., Minor, Undergraduate Certificate, M.S. Integrative Biology Degrees Offered: B.S., Minor, Undergraduate Certificate, M.S., Ph.D. Mathematical and Statistical Sciences Degrees Offered: B.A., B.S., Minor, Undergraduate Certificate, M.S., Ph.D., Graduate Certificate Physics Degrees Offered: B.S., Minor, Undergraduate Certificate, Graduate Certificate Certificates CLAS offers over 30 undergraduate and graduate certificates as well that offer students a way to enhance their existing skills and provide professional development. Certificates Meet Meena Esan - Integrated Biology Major From Kabul to Ukraine to Colorado - Meena's journey to CU Denver wasn't always easy, but we are thrilled that she found her place with us as an Integrated Bio Major in the College of Liberal Arts & Sciences. Meet Adriana Gomez - Public Health with a Minor in Political Science With a passion for public health and politics, Adriana graduated from CU Denver with her favorite people cheering in the crowd: her family. Meet Daniel Barry - Physics Major First-generation college student, Daniel Barry, joined the army right after high school. After his tour of duty in Afghanistan, he's been inspired to get his degree in physics to model the importance of education to his soon-to-be stepdaughter. About the College CLAS Quick Links Resources Programs Departments Dean's Office Prospective Students Current Students Faculty & Staff Alumni All Undergraduate Programs  All Graduate Programs All Certificates Anthropology  Biology  Chemistry Communication Economics English Ethnic Studies Geography and Environmental Sciences Health and Behavioral Science History Interdisciplinary Studies International Studies Individually Structured Major Mathematical and Statistical Sciences Modern Languages Philosophy Physics Political Science Psychology Sociology  Anthropology   Biology   Chemistry  Communication  Economics  English  Ethnic Studies  Geography and Environmental Sciences  Health and Behavioral Science  History  Humanities & Social Sciences Integrated Sciences International Studies  Mathematical and Statistical Sciences  Modern Languages  Philosophy  Physics  Political Science  Psychology Religious Studies  Sociology Women's & Gender Studies CLAS in the News James Walsh on Irish Heritage in Colorado Good Work of Kristin Kilbourn and Her Graduate Students during the Pandemic Highlighted Sarah Fields Part of Amicus Brief to Supreme Court on NCAA Case Feed from Deans Notes , University of Colorado Denver Upcoming Events Findings from the Equity Task Force: A Panel Discussion, April 15 Picture A Scientist Screening, April 9-11 and April 16 images, data, points, lines, polygons: processing truths in an information-driven world, April 5 & 13, May 3 Feed from Deans Notes , University of Colorado Denver Give to CLAS Master Calendar The Diversity and Inclusion Initiatives Fund provides grants to promote and advance CLAS diversity Apply for DIIF Now Follow Us! Facebook Twitter YouTube College of Liberal Arts and Sciences CLAS Dean's Office North Classroom Building 5014 Phone: 303-315-7000 Fax: 303-315-7016 E-mail: clasdeansoffice@ucdenver.edu For questions regarding undergraduate student services CLAS Advising Office Phone: 303-315-7100 E-mail: CLAS_Advising@ucdenver.edu Academic Resources Academic Calendar Catalog Course Schedules Undergraduate Advising College Resources Human Resources Deans' Notes Deans' Office Pinnacle Magazine University Resources Maps & Parking Admissions Registrar Financial Aid A-Z Index Contact Us Website Feedback CU System Privacy Policy Legal Notices Accreditation Employment Give Now © 2017  The Regents of the University of Colorado, a body corporate. All rights reserved. Accredited by the Higher Learning Commission. All trademarks are registered property of the University. Used by permission only. Return to the top of the page 
work_oe5jgin3ine3tkibveihtj3eda	----	Individualizing Justice After Atkins S. Jan Brakel, JD On August 6, 2005, newspapers and other media outlets reported that Daryl Atkins had been determined by a Virginia jury not to be retarded and therefore was mentally competent to receive the death penalty. A judge immediately scheduled his execution for December. Atkins, of course, is the convicted murderer whose case three years earlier had led the U.S. Supreme Court, in a landmark ruling, to declare that mentally retarded offenders are constitutionally exempt from the death penalty. While a bitter irony for Atkins, his family, and supporters, the Virginia jury’s finding suggests that the practical effects of the Supreme Court’s decision are less dramatic than many had anticipated. It shows that mere labels need not be determinative and that judges and juries as well as mental health experts called to assist them in capital cases can continue to work toward an individualized brand of justice. J Am Acad Psychiatry Law 34:103– 4, 2006 I don’t know who is entitled to react with satisfaction to the news that someone has been sentenced to death. The prosecutors who tried the case? The vic- tim’s survivors? The surrounding community af- fected by the crime in a personal way? The larger community of all those who believe strongly that the death penalty fulfills appropriate retributive and de- terrent goals and who therefore feel they have a moral stake in the outcome so long as the individual facts support it? As I am not a member of any of these groups, the recent news that Daryl Atkins was found death eligi- ble by a jury in Virginia gave me no particular moral satisfaction. It did, however, give me some sense of rightness as a lawyer. It fulfills a prediction I have been making to my law classes that what happened to Atkins since Atkins (the U.S. Supreme Court deci- sion)1 would, or at least could, happen. Second, that this is a good thing, at least in the sense that the ruling in Atkins was wrong, and this last twist in the case, much as it is to Daryl Atkins’ individual disadvan- tage, does suggest things are working themselves out right generally. I have never doubted that the decision in Atkins was wrong in categorically excluding from the death penalty the mentally retarded as a class and that Penry,2 the case it overruled, which affirmed the prac- tice of individualized assessments as distinct from going by the labels, was right. Quite apart from what one may think of the majority’s reasoning that a na- tional consensus (or even a trend) can be discerned from the laws of 18 states or the strange calculus that the culpability of a mentally retarded murderer can- not be greater than that of the “average [nonretarded] murderer,” the problem with the Atkins holding is that it is jarringly out of tune with the rest of the law, especially the modern law. In Atkins the majority of Justices did not merely go wrong, they went in the wrong direction. In equating diagnosis with exemp- tion, they delivered a profoundly regressive message or as Justice O’Connor, the writer of the Penry opin- ion noted, a “disempowering” message (Ref. 2, p 340). To treat the mentally retarded, legally or oth- erwise, as a “homogeneous group. . .bring[s] the risk of false stereotyping and unwarranted discrimina- tion” said the dissenters in Penry before they went on to ignore their own warning (Ref. 2, p 344). They should have heeded it, just as the majority in Atkins should have. Ultimately, however, the objection to Atkins is based as much on legal and intellectual grounds as on its social impact potential. Though Ralph Slovenko, writing in the Journal,3 sees it differently, for once I must disagree with him when he talks of Atkins as just newly bottled “old wine.” Our law has long, if not always, striven to require a diagnosis-plus in dealing with the mentally handicapped. Even the old, med- ical model commitment laws asked for not just a finding of mental impairment but a resultant need for treatment. (Today, of course, it is dangerousness Mr. Brakel is Chief Executive Officer and Director of Education of the Isaac Ray Forensic Group, Adjunct Professor, DePaul University Col- lege of Law, Assistant Professor, Rush Medical School, and Lecturer, Cermak Health Services, Cook County Jail, Chicago, IL. Address cor- respondence to S. Jan Brakel, JD, Isaac Ray Forensic Group, LLC, 200 South Michigan Avenue, Suite 710, Chicago, IL 60604. E-mail: sjbrakel@irfg.org 103Volume 34, Number 1, 2006 A N A L Y S I S A N D C O M M E N T A R Y and perhaps a gun to the head for the “overt act.”) The mentally handicapped cannot write a valid will, not because of their handicap as such, but because of the decisional incapacity it may generate which must be separately proved. Ford v. Wainwright,4 the men- tal illness predecessor and counterpart to Penry and Atkins, was not about the inmate’s mental illness, which even the state’s doctors conceded, but about his resultant competency to understand the execu- tion process (actually, it was all about procedure). Atkins is a new drink. In the “old days” there was often an equation of one legal finding or status with another that had not been formally decided. Commitment to a mental hospital, for example, might mean an automatic judgment of incompetency for the patient and loss of other legal and civil rights. An acquittal by reason of insanity resulted in automatic hospitalization. And so on. Much reform effort went to and succeeded in disentangling such automatic legal conclusions or presumptions, and much of this was laudable. (Ex- ceptions include Jones v. United States,5 as well as the idea popular with lawyers, but logically and medi- cally dubious, that an involuntarily committed pa- tient retains treatment decision capacity and rights.) Atkins cuts doubly against the grain: it (re)equates legal status with a particular (unrelated) exemption or disqualification, and it equates the medical diag- nosis with the legal disablement. But of course, Atkins left the decision of what con- stitutes the diagnosis of retardation to the states, with an explicit suggestion that deference to the medical profession was in order. And it is this that led to the bad result for Daryl Atkins. IQ numbers alone don’t decide the case, as is now clear (at least in Virginia); other cognitive and functional capacities must be considered. Ralph Slovenko wrote in his commen- tary, “The role of psychiatrists or other mental health professionals under Atkins will be no different from their roles in other areas of psychiatry and law” (Ref. 3, p 317). He may have been correct to the extent that experts do not report on or testify to the ultimate legal issue, but the fact is that they are asked to do so all the time. I wish he had said “no different from pre-Atkins.” It would have been a finer point, and I would have been in agreement with him on that. The denouement in Atkins’ case shows that mental health experts are still individualizing the assessment; the inmate need not be treated as a category or cipher. The only difference is that the individualization goes under the rubric of trying to determine retardation, whereas under Penry it went under individual culpa- bility and competence. The latter remains technically correct, but if Atkins-in-operation’s only imperfec- tion is an intellectual one, I suppose both psychia- trists and lawyers can live with it. It should be clear, after all, that individualized jus- tice is not a one-way street. The benefits of appropri- ate, fine-tuned, expert inquiries—whether focusing on culpability and competency or mental retarda- tion— can go in either direction. Apart from the fact that, from the state of Virginia’s perspective, justice was done, there is the further consideration that for every Daryl Atkins there ought to be a homicide- convicted counterpart who “passes” the superficial retardation test—that is, one who does not have the numbers, but who on further inquiry, is shown to be so functionally and adaptively impaired that the jury or whoever is designated to confront the issue will see it as right to save him from the harshest punishment. References 1. Atkins v. Virginia, 536 U.S. 304 (2002) 2. Penry v. Lynaugh, 492 U.S. 302 (1989) 3. Slovenko R: Commentary: old wine in a new bottle. J Am Acad Psychiatry Law 32:317–18, 2004 4. Ford v. Wainwright, 477 U.S. 399 (1986) 5. Jones v. United States, 463 U.S. (1983) Individualizing Justice after Atkins 104 The Journal of the American Academy of Psychiatry and the Law 
work_ogccauewnnblri3llyfinonami	----	4919087.0014.105 SOCIAL JUSTICE MENTORING 42 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations Social Justice Mentoring: Preparing Family Therapists for Social Justice Advocacy Work* Christi R. McGeorge Thomas Stone Carlson North Dakota State University *Please address all correspondence to: Dr. Christi McGeorge, Department of Human Development and Family Science, North Dakota State University 2615, PO BOX 6050 Fargo, ND 58108-6050; Phone: (701)231-7335, Fax: (701)231- 9785, Email: christine.mcgeorge@ndsu.edu. Abstract This article discusses the important role of social justice mentoring in preparing family therapy graduate students for social justice advocacy work. In particular, we offer strategies for mentoring students in an exploration of their own positionality and societal privileges, discuss challenges to mentoring students for social justice advocacy work, and share students’ experiences of exploring their own positionality and societal privileges. Keywords: Family therapy, Mentoring, Social justice, Self of the therapist Mentoring is an important component of the development of emerging professionals; however, within the field of family therapy mentoring has received little attention (Prouty, Lyness, & Helmeke, 2008). Although mentoring is not widely written about in the family therapy field, it appears that most often the roles and functions associated with mentoring occur within the context of clinical supervision. Mentoring involves helping emerging professionals learn about their new roles within their chosen discipline through education and personal development (Williams-Nickelson, 2009). Additionally, the role of the mentor involves providing encouragement, direction, emotional and professional support, and constructive feedback that fosters personal and professional growth (Johnson, 2006; Prouty, Lyness, & Helmeke, 2008; Williams-Nickelson, 2009). The processes that comprise the mentoring relationship are similar to the processes that occur within clinical supervision. Specifically, the role of the clinical supervisor is to assist student trainees in developing an identity as a family therapist, and thus, integrate them into a new professional role, while also helping them develop a specific set of clinical competencies (Todd & Storm, 1997). Thus, one reason why the topic of mentoring may have received little attention in the family therapy field is that clinical supervision encompasses what other disciplines refer to as mentoring. SOCIAL JUSTICE MENTORING 43 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations The family therapy literature on supervising and mentoring graduate students has focused on issues related to self of the therapist and addressing professional and ethical practices (Baldwin, 2000; Carlson & Erickson, 1999; Fontes, Piercy, Thomas, & Sprenkle, 1998; Satir, 1988; Timm & Blow, 1999). Self of the therapist work is based on the notion that, if left unexplored, therapists’ personal life experiences and family histories will become a barrier in their work with clients (Aponte, 1994). Specifically, self of the therapist work has involved assisting students in exploring the patterns that exist within in their own families of origin in an effort to be less reactive to transgenerational patterns, and in order to create greater objectivity on the part of the therapist (Aponte et al., 2009; Aponte & Winter, 1987; Guerin & Hubbard, 1987). While the purpose of this self of the therapist work is to assist therapists in becoming more aware of their position within their own families, less focus has been placed on the therapists’ positions within larger societal structures. The importance of exploring therapists’ positionality (i.e., social location in regard to gender, race, class, sexual orientation, etc. ) within dominant power structures has become more salient in recent years as the family therapy field has been engaged in a dialogue about the need to expand the practice of family therapy to include social justice advocacy work (Almeida, Dolan-Del Vecchio, & Parker, 2008; Green, 1998; Hardy & McGoldrick, 2008; McDowell & Jeris, 2004; McGeorge, Carlson, Erickson, & Guttormson, 2006; Parra-Cardona, Holtrop, & Cordova, 2005). This need to include social justice advocacy work in family therapy is well captured by Green (1998) when he asked “will we continue to only huddle in our offices waiting for individual families to request treatment, or will we move beyond family therapy to include prevention, community intervention, and family social policy within our scope of practice?” (p. 107). Researchers argue that a central component of preparing students to engage in this advocacy work involves helping students become aware of their social location within dominate power structures (Hardy & McGoldrick, 2008; McGeorge et al., 2006; McDowell, Fang, Young, Khanna, Sherman, & Brownlee, 2003). In particular, this process involves helping students gain an awareness of how systemic oppression and advantage influences clients, the therapy process, and their own personal lives. However, it is important that this mentoring process move beyond helping students to explore the disadvantages of marginalized groups and focus on helping student therapists address and begin to dismantle their own societal privileges. This self-reflective process is important because how we see or make sense of the world is limited by our positions of privilege within society (Hardy & McGoldrick, 2008; Johnson, 2006). Specifically, a therapist’s social location influences how she or he perceives clients and the causes of the problems clients present with in therapy. In this paper, we propose expanding the concept of the self of the therapist to include an exploration of the therapists’ positionality within dominant social structures. While the assumption is often made that addressing privilege and oppression with student trainees helps them better work with diverse and marginalized populations, this is not the primary purpose of this proposed approach to social justice mentoring. A fundamental assumption of this work is SOCIAL JUSTICE MENTORING 44 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations that positionality impacts our work with all clients regardless of the privilege and oppression that they experience. Thus, the purpose of the paper is to (a) review existing literature on mentoring students to prepare for social justice advocacy work, (b) offer strategies for mentoring students in an exploration of their own positionality and societal privileges, (c) discuss challenges to mentoring students for social justice advocacy work, and (d) share students’ experiences of exploring their own positionality and societal privileges. Mentoring and Social Justice Advocacy Work While this is a relatively new discussion in the family therapy discipline, other clinical disciplines (e.g., psychology, counseling, social work) have a longer history of addressing how to mentor students to become social justice advocates (Constantine, Hage, Kindaichi, & Bryant, 2007; Goodman, Liang, Helms, Latta, Sparks, & Weintraub, 2004; Kiselica & Robinson, 2001; Lee, 1998; Speight & Vera, 2004; Steele, 2008; Vera & Speight, 2007). Social justice advocacy work is based on the notion that larger contextual factors, outside of the control of individuals and families, play a significant role in shaping behaviors and decision making. Thus, a fundamental belief of social justice advocates is that the issues or problems that clients present with in therapy are a direct result of their social location (i.e., positionality) within dominant social structures (Goodman et al., 2004; Lee, 1998; Speight & Vera, 2004). The goal of social justice advocacy work, therefore, is not just to work with the individual clients, but rather to create societal level changes that promote greater equality and opportunity for marginalized groups (Goodman et al., 2004; Speight & Vera, 2004). In order to effectively prepare students for social justice advocacy work, the literature appears to highlight a number of competencies that student clinicians need to develop. For example, Vera and Speight (2007) have identified three skills sets or characteristics that students need to do social justice based work: (a) emotional attunement to oppression and the suffering caused by oppression, (b) cognitive awareness of the structures that create power imbalances and oppression, and (c) skills to directly address issues of power, privilege, and oppression. In addition to the above identified skills other scholars argue that in order to do social justice advocacy work counselors also need to develop an awareness of themselves, their values, and their positions in larger social structures (Lee, 1998; Steele, 2008). Although the concept of self-awareness is important for social justice advocacy work, we believe that the type of self-awareness needed involves a critical reflection on one’s positionality and the privileges granted by one’s social location (e.g., White privilege, male privilege, heterosexual privilege, social class privilege) (Constantine et al., 2007; Hardy & McGoldrick, 2008; McGeorge et al., 2006). Further, we agree with Constantine et al. (2007) that “self awareness entails being cognizant of one’s attitudes, beliefs and values, regarding race, ethnicity, and culture, along with one’s awareness of the sociopolitical relevance of cultural group membership in terms of issues of cultural privilege, discrimination, and oppression” (p. 85). Although engaging in critical self- reflection is important for members of all cultural groups, we believe this process SOCIAL JUSTICE MENTORING 45 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations is particularly vital for members who belong to dominant socially sanctioned groups (e.g., Whites, males, heterosexual identified individuals) (McGeorge et al., 2006). Again, as stated previously, the purpose of most efforts to raise students’ consciousness regarding their social location within dominant power structures is to better prepare them to work with marginalized groups (Arredondo & Arciniega, 2001; Constantine et al., 2007; Kiscelica & Robinson, 2001). However, a critical understanding of one’s social location also is vital to preparing students to work with clients who belong to privileged dominant socially sanctioned groups. For example, it would be important for a White heterosexual male therapist to be aware of how his positionality might influence his work with a White heterosexual couple in ways that might blind him to how societal structures are privileging the needs of the male partner, over the needs of the female partner, and lead him to align with the male partner’s view of the relationship. This example illustrates that, for therapists who belong to dominant groups, it is important to constantly ask themselves not if, but how “sociohistorical and sociopolitical forces shape … [their] own identities and subsequent understanding of their clients” (Goodman et al., 2004, p. 799). To return to the above example, it would be important for the White heterosexual male therapist not only to reflect on how male privilege is influencing his work, but also how his heterosexual and White privilege directly influence his understanding or conceptualization of the case. Strategies for Mentoring Students in an Exploration of Their Own Positionality In order to prepare students to do social justice advocacy work, this section of the paper presents strategies for mentoring students in an exploration of their own positionality and societal privileges. These strategies are organized according to the following themes: (a) activities for use in academic courses, (b) activities for use in clinical supervision, and (c) strategies for structuring clinical training programs. Activities for Use in Academic Courses Several authors articulate that preparing students to do social justice advocacy work involves much more than simply teaching one course on diversity issues, but instead requires a commitment by the entire faculty to center all course work around social justice principles (Arredondo & Arciniega, 2001; Bemak & Chung, 2007; McDowell & Shelton, 2002; McGeorge et al., 2006). This process of centering course work on social justice principles involves addressing both course content and class assignments. In this section, we provide examples of how to infuse social justice principles in course content and assignments. However, it is important to note that an in depth discussion of the process of centering all course work around social justice principles is beyond the scope of this article, for more information on this process the reader may wish to refer to Bemak and Chung (2007), McDowell and Shelton (2002), and McGeorge et al. (2006). An example of centering course content on social justice principles in an ethics and professional issues class would be teaching students about the Feminist SOCIAL JUSTICE MENTORING 46 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations Code of Ethics (Feminist Therapy Institute, 1999) and then critiquing other professional codes of ethics through the lens of the Feminist Code of Ethics. Another example could involve teaching diagnosing and assessment from a critical perspective that explores how issues of racism, sexism, heterosexism, and classism influence the criterion for diagnoses and the diagnostic process. A third example involves intentionally altering the content taught in courses on couples therapy to be inclusive of all couples (i.e., LGB and non-LGB couples). A common practice in teaching couples therapy is to address working with LGB couples in a special sub-unit of the course limited to a week or two of instruction. This practice is based on the heterosexist assumption that the word “couple” is synonymous with “heterosexual couple” and reinforces the notion that LGB couples are defined solely by sexual orientation, and thus, have little in common with heterosexual couples (McGeorge & Carlson, in press). As previously stated, preparing students to do social justice advocacy work involves a critical exploration of their own social location and societal privileges. To foster this exploration a number of different course assignments can be used. For example, we assign the students in our graduate program to write a paper that invites them to identify their own social location within dominant power structures and the influences that these power structures have on their personal and professional identities. Students are asked to situate their identity in terms of each of the following power structures: gender, race, class, sexual orientation (this structure is optional due to the sensitive nature of the issue and the fact that we would never want to force a LGB student to “come out”), ability, and religion. Students are further instructed to articulate how each of these identities has influenced them in terms of their experience of privilege and oppression, and to be specific about the types of privileges and oppressions they experience as a result of belonging to privileged or marginalized groups in both their personal and professional lives. Moreover, students are asked to articulate how each of the following power structures have influenced their sense of self (personally and as a therapist): patriarchy/male superiority, racism/White superiority, heterosexism/heterosexual superiority, and religion/Christian superiority. Additionally, students are asked to write about how their positionality will impact their ability to work with all clients and identify ways that they can attempt to dismantle the effects of their positions of privilege. Finally, students are asked to discuss their beliefs about the importance of addressing issues of power, privilege, and oppression in the context of therapy. Another example of an assignment used in our graduate program to prepare students for social justice advocacy work involves requiring students to write a paper that reconstructs a foundational theory in the field of family therapy (e.g., Structural, Bowenian, Strategic, Experiential, etc.) from a feminist social justice perspective (McGeorge et al., 2006). For this assignment students are asked to select one of the foundational theories of family therapy and reconstruct the theory with the following question as a guide: “What would the theory look like if it were developed by a member of a marginalized community?” The idea behind this assignment is that the positionality of the developer of a theory strongly influences what the theory “sees” and how it is applied. For example, the sexism present in a theory may have more to do with the positionality of the originator of the theory than the theory itself. SOCIAL JUSTICE MENTORING 47 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations A final example of an assignment used in our graduate training program to assist students in exploring their positionality and societal privileges involves an adaptation of the “self of therapist genogram activity” (Halevy, 1998; Hardy, & Laszloffy, 1995). For this assignment, students are asked to construct a three generation genogram, which includes their grandparents, parents, aunts, uncles, siblings, cousins, themselves, and their romantic partners. In addition to reflecting on typical family of origin patterns, students are asked to answer the following questions: (a) As you look at your genogram and think of your family, what were you taught about gender? How were the relationships in your family organized according to your family’s beliefs about gender?; (b) What beliefs did your family teach you about race? How has the racial identity of your family shaped your family? Shaped your family history? If appropriate, what are some of the specific ways that your family benefited from White privilege?; (c) As you look at your genogram and think of your family, what were you taught about social or economic class? If appropriate, what are some of the specific ways that your family benefited from class/economic privilege?; and (d) As you look at your genogram and think of your family, what were you taught about sexual orientation? If appropriate, what are some of the specific ways that your family benefited from heterosexual privilege? Activities for Use in Clinical Supervision In order to prepare students for social justice advocacy work, clinical supervision needs to be centered on inviting students to reflect on how their positionality within dominant power structures within society is impacting their work with each of their clients. In an effort to ensure that the issue of therapists’ positionality is central in supervision, it would be important for supervisors to begin each supervision session by asking students to reflect on how their own positionality and societal privilege is influencing their understanding and assumptions about a client(s). In addition to reflecting on the influence of positionality on the therapy process, it is important for supervisors to encourage students to identify specifically how they are addressing issues of power, privilege, and oppression in their work with each client (McGeorge et al., 2006). By beginning supervision in this way, supervisors ensure that issues related to positionality and societal privilege will guide both the therapy and supervision process and will not be overlooked. Further, it is important for supervisors to model this process by reflecting on how their positionality and societal privilege is influencing their clinical assumptions about a particular case. One way supervisors can model this process is by attending to issues of power, privilege, and oppression within the supervisory relationship itself. While the intent of attending to these issues would be to create an open space for discussing issues of positionality, it is essential that supervisors also acknowledge the inherent hierarchy between themselves and their supervisees. This awareness is important because, while a supervisor and supervisee may share a similar social location (e.g., gender), the supervisor always holds greater power due to her or his status as supervisor. SOCIAL JUSTICE MENTORING 48 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations Another activity that can be used in clinical supervision is to ask students to journal in between supervision meetings about times in the therapy room when they were able to recognize the influence of their own positionality and times when they later realized they failed to recognize the influence of their own positionality on their work with a particular client (Mio & Barker-Hackett, 2003). Student journals can be reviewed and discussed at the beginning of each supervision session. A final strategy to assist students in exploring their positionality is to use clinical vignettes (written or video) in supervision to analyze how issues of positionality and societal privilege are impacting the therapy process (Arredondo & Arciniega, 2001). As students develop competence in identifying these issues in the vignettes, supervisors can invite students to critically review recordings of their own clinical work to look for examples of how their positionality impacts their therapy. It may be helpful for this assignment to be done in a group supervision setting where students present their observations of their own clinical work and receive feedback from their peers. Strategies for Structuring Clinical Training Programs Another important aspect of preparing students to do social justice advocacy work involves a commitment on the part of the clinical training program to make social justice principles central to the overall mission and structure of the program (Bemak & Chung, 2007; McGeorge et al., 2006). There are several ways that clinical training programs can begin to make social justice principles a part of the culture or identity of their programs. One suggestion identified in the literature is to develop a structure for involving students in activism work that addresses community level issues related to oppression (Goodman et al., 2004; McGeorge et al., 2006). For example, training programs could require students and faculty to march in the local PRIDE parade or provide opportunities for students to do regular volunteer work with agencies that serve marginalized populations in the local community (e.g., homeless shelters, domestic violence centers, and LGBT advocacy organizations). The counseling psychology doctoral program at Boston College provides a good example of how to institutionalize activist efforts (Goodman et al., 2004). In their program, first year graduate students spend six hours a week at a community organization that specializes in serving marginalized populations. The hope of this experience is to help students gain awareness of systemic injustices and develop the skills to address those injustices. Another way to prepare students for activist work with marginalized populations is through the use of non-traditional or social justice clinical internships (Constantine et al., 2007; McGeorge et al., 2006). For example, in our graduate training program we have developed relationships with agencies that serve marginalized populations who had not traditionally had clinical interns and/or had the ability to offer mental health services. Through these partnerships we have been able to provide needed services to underserved communities and provide our students with opportunities to gain valuable clinical experiences working with diverse populations. SOCIAL JUSTICE MENTORING 49 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations A final potential strategy for structuring a training program to be centered on social justice principles involves the use of a caucus system (McGeorge et al., 2006; Tamasese & Waldegrave, 1993). The caucus system involves creating caucuses for members of dominant socially sanctioned groups as well as caucuses for members of marginalized or oppressed groups. For example, separate caucuses could be created based on race, which would entail a group for White students and faculty and a group for students and faculty of color. “The purpose of these caucuses is to create an accountability structure where those of the dominant group are responsible for dismantling privilege (e.g., male and White) and being accountable to the experience of those of the less dominant groups (e.g., women and people of color)” (McGeorge et al., 2006, p. 13-14). Thus, the caucuses for the dominant groups work to become “aware of and accountable” for their societal privileges and identify specific ways to dismantle those privileges (McGeorge et al., 2006, p. 14). The purpose of the caucuses for the marginalized groups is to explore ways that they have internalized societal oppressions, and while it is not the responsibility of the marginalized groups to raise issues of inequality, the caucus system provides a structure for the marginalized groups to raise concerns if they chose to do so (Tamasese & Waldegrave, 1993). An important governing structure of the caucus system is that whenever a caucus from a marginalized group raises an issue or concern the caucus for the dominant group is required to take action to address the concern. It is important to note that in order for the caucus system to be effective the overall structure of a training program needs to be centered on social justice principles and commitments. Challenges to Mentoring Students for Social Justice Advocacy Work We want to acknowledge that there are a number of potential challenges to mentoring students to do social justice advocacy work for both faculty and students. However, here we focus on challenges experienced by faculty in the following areas: faculty-student relationships, resistance to exploring privileges, and emotional costs. One of the challenges clinical faculty may experience is the management of the multiple relationships that exist between the faculty member and the student (Blevins-Knabe, 1992; Holmes, Rupert, Ross, & Shapera, 1999; Owen & Zwahr-Castro, 2007). For example, a faculty member may serve as a student’s mentor, clinical supervisor, instructor, and/or thesis/dissertation advisor. These multiple roles are manageable as long as clear appropriate boundaries are maintained (Gottlieb, Robinson, & Younggren, 2007). The intimate and personal nature of the self-reflective process associated with exploring students’ positionalities and societal privileges increases the likelihood that confusion could exist about the nature of appropriate professional boundaries. In particular, there could be confusion around the topics or issues a clinical faculty member should not inquire about or the limits around what a faculty member can require students to discuss in supervision. The type of self-reflection that is involved in preparing students to do social justice advocacy work creates an increased sense of vulnerability for students and faculty as they are exploring potentially sensitive topics and life SOCIAL JUSTICE MENTORING 50 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations experiences. Therefore, this mentoring requires sensitivity and the avoidance of an overly hierarchical or top down approach. However, the role of supervisor does require some hierarchy due to legal and ethical obligations, and supervisors need to acknowledge to themselves and to their students that there is inherent hierarchy between faculty members and students (Fontes et al., 1998; Holmes et al., 1999; Rosenberg & Heimberg, 2009). Another important consideration related to boundaries between faculty and students is that it is important for clinical faculty to be mindful that this mentoring does not shift from supervision to therapy. The supervision literature is clear about the importance of creating a distinction or boundary between clinical supervision and providing therapy services to students (Aponte et al., 2009; Fontes et al., 1998; Timm & Blow, 1999). Another challenge associated with this social justice mentoring process involves the issue of student readiness to do self-reflection work on their positionalities and societal privileges. For many students, learning about the concept of societal privilege and unearned advantage is difficult and uncomfortable (Lusk & Weinberg, 1994). It is not uncommon for students to react to this self-reflection process with defensiveness and what could appear to be resistance (Lusk & Weinberg, 1994; Mio, & Barker-Hackett, 2003). However, an exploration of privilege is challenging for privileged groups and this reaction should not be seen as resistance, but rather a normal and expected part of the developmental process of learning about and accepting one’s societal privileges. Thus, this awareness requires faculty members to prepare and support students as they are confronted with the discomfort associated with doing this self-reflective work. Finally, we believe it is important to acknowledge the emotional costs for faculty that may be associated with a commitment to training students to do social justice advocacy work. Since this social justice mentoring process requires faculty to do their own self-reflection, this can add to the emotional costs associated with doing this mentoring work. Additionally, in order to hold students accountable for doing their own self-reflection and to be sensitive to the struggles students may experience faculty members need to be present for students in a way that goes beyond what typically is required. Therefore, faculty need to engage in activities or behaviors that promote their own self-care in order to have the energy and passion necessary to engage with students throughout this social justice mentoring process. Further, although this type of mentoring takes significant time and effort, it is effort that frequently is not recognized or counted as a valuable use of faculty time by administrators who are making promotion and tenure decisions (Goodman et al., 2004). Students’ Experiences of Exploring Their Own Positionality and Societal Privileges In this final section, we thought it would be important to bring in the voices of graduate students who have experienced social justice mentoring. The voices shared in this section are from graduate students in our couple and family therapy master’s training program, which is centered on feminist and social justice principles. The program seeks to admit six to eight students each year and SOCIAL JUSTICE MENTORING 51 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations has three full-time faculty assigned to teach the clinical courses and provide all of the clinical supervision. We surveyed students from four different cohorts, which represented students in their first year of training to recent graduates of our program in order to learn about their experiences of exploring their own positionality and societal privileges. Students were invited to complete an on-line survey comprised of a series of open ended questions. Twenty-two students received the invitation to participate in our survey and 15 students completed the survey. In order to ensure complete anonymity no demographic information was collected. However, we do know the demographic characteristics of the 22 students initially invited to participate. In terms of gender, 21 students identify as women and one student identifies as transgendered. Additionally, all 22 students are White and the majority identify as heterosexual with three students identifying as lesbian or bisexual. The students ranged in age from 22 to 32 years. Representative quotations from the students in response to three of the open ended questions are provided below, and rather than organizing the students’ responses into particular themes we have chosen to let the students voices stand for themselves. While all of the student responses will not be included, the quotations selected are representative of the entire group of responses. Changes Experienced from Learning about Power, Privilege, and Oppression Through the survey we wanted to learn about the changes that the graduate students had experienced as a result of learning about their own positionality. The graduate students were asked to respond to the following question, “What changes have you experienced in your life as you have learned (or learned more) about the role of power, privilege, and oppression as it relates to your our own positionality?” The students’ quotations reflect changes in both their personal understandings of the existence of societal privilege and how that understanding applies to their work with clients. The opportunity to learn about power, privilege, and oppression has helped shape my values, beliefs, and practice in the therapy room. Professionally I’m able to address larger issues that my clients more than likely are influenced by. . . . Personally my relationships around me have positively changed. I believe the main change I have had in my life is a permanent "call to action". Knowing about these issues has called me to be an activist so that I can work to dismantle systems. I have become more aware of how power, privilege and oppression play a large role in today’s society. It also helps me understand situations on a more politicized way. The process of learning about these concepts has enabled me to be self- reflective and acknowledge when I am experiencing privilege and I now SOCIAL JUSTICE MENTORING 52 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations try to have conversations with others about their own privileges. I also try to help others see the privileges they have and how others are affected by them. I realize that a lot of what I have is not necessarily all from my own successes, but from unearned advantages I have over other races, sexual orientations, cultures, etc. I feel I've become more mindful of my privilege and have worked to help privilege others of marginalized groups. My previously individualistic values have changed and I've learned to look at other factors that are contributing to client's problems. I feel I've become an advocate for others and this is part of my work as a therapist and in my personal life, it is my job to help others who don't understand how systems oppress certain groups. Impact of Exploring Positionality Another area we were interested in learning about was the impact of exploring one’s own positionality on the lives of the graduate students. In order to accomplish this we asked the graduate students to respond to the following question, “What has been the impact of exploring your own positionality related to privilege and oppression on your own life?” The students’ responses reflect an awareness of the impact of their positionality not only on themselves but also on others. The students also appear to feel a sense of responsibility that comes from this new awareness of their positionality and societal privileges. In exploring my position related to privilege and oppression; I feel that I have a greater awareness with how my positionality impacts myself and others. In my personal life, I feel I'm more attuned with my own actions because of my exploration with my positionality as it relates to power, privilege, and oppression. As an individual with many positions of privilege I have worked to incorporate self-reflection on how I use my position of privilege in my life. Additionally, another impact is that every so often there is a desire to go back to a place of ignorance. I believe that with this education comes responsibility. For me, it is impossible to know about systems without being called to do everything possible to change the systems. Thus, there are times where this feels like a burden and there are fleeting moments of wishing I could ignore the injustice I see around me. While this work is important, it can be difficult, draining and ever challenging. I definitely am more aware of the privileges I have and how I benefit everyday because of them. I have always been able to recognize any oppression I experience, but am now able to recognize the privileges I SOCIAL JUSTICE MENTORING 53 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations experience in life. The process has been powerful and I think it helps me relate to others and helping people I work with see their own privileges. I have become more intentional in my conversations in how I challenge people regarding their privileges. (i.e., challenging racist/homophobic jokes and stereotypes). I'm more open-minded and aware. I notice things, the little injustices that happen every day that I wouldn't have noticed before. The Relationship Between Positionality and Competent Therapy Services Finally, we sought to explore the students’ perceptions about the relationship between their understanding of their own positionalities and their ability to be competent therapists. In particular, we asked them to respond to the following question, “How has exploring your own positionality related to privilege and oppression impacted your ability to provide competent services to all clients?” The graduate students’ responses appear to reflect an understanding of the intersectionality between their positionalities and the positionalities of their clients. This awareness is essential because it demonstrates that the students are not just simply aware of the oppressions their clients experience, which is important, but that they are also mindful of how their social location and societal privileges are impacting the therapy process. In the therapy room, my positionality affects clients in unique ways depending on the clients' positionality. My awareness of my own positionality is important because of the influence it has on therapy. By understanding my own positionality, I'm able to discuss it with clients and the how it may benefit or challenge the therapy process. I would also discuss my clients positionality related to privilege and oppression as it relates to her/his daily life. I believe this exploration leads me to be more competent in providing services to clients. I believe that the context of someone’s life is paramount when determining how to assist them. Knowing how their experiences of oppression might be contributing to their presenting issue(s) is vital to providing comprehensive/compassionate services. I believe that it is NECESSARY to explore one's own positionality in order to recognize ways that clients may experience us in the room aside from the ways we are aware of. I think having discussions regarding my own positionality could be helpful so that clients can be aware of my own knowing of it. I believe that being open and exploratory about privilege and oppression with clients builds trust and allows them to feel comfortable talking about SOCIAL JUSTICE MENTORING 54 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations such things with me. This trust and talking about such important things help make me a more competent therapist. In learning more about my own positionality, I have become much more aware of how others are treated based on their positions in society. I will be able to provide better services to clients because I am now more likely to see the ways they are being oppressed. This not only helps in terms of being empathetic toward my clients but also gives clues to what questions to ask them, giving me a better understanding of who my clients are and what they deal with. It has opened my eyes to certain truths that I wasn't aware of before. I've learned to look at other factors that are influencing clients, not just their presenting problems. I think owning my privilege will be important when working with people who may not feel comfortable bringing certain issues into the room. My increased awareness will help me bring up difficult topics in session that will be extremely important in therapy. The students’ responses to each of the above questions provide us with significant reminders and insights about the importance of social justice mentoring. For example, the students’ responses remind us about the deeply personal nature of exploring one’s own privileges and positionalities. While the overall intent of our training is to increase students’ professional competence, it is clear to us from our students’ responses that the impact of this training goes far beyond their professional lives and impacts their personal lives and relationships. Our students’ responses also remind us of the importance of being sensitive to the personal challenges and consequences that students might face as they live out their social justice commitments in their families and relationships. Another important insight that we gained from reflecting on our students’ responses was that while students were aware of the societal oppressions they experienced prior to beginning their training; learning about their own positionalities increased their awareness of the privileges they experienced due to their other social locations (e.g., race, sexual orientation, class). Finally, it was encouraging for us to realize that our students felt that learning about their own positionalities increased their compassion and understanding of their clients’ lives and thus, their overall sense of competence as therapists. Conclusion In this paper, we described the role of social justice mentoring in family therapy training programs. This type of mentoring is important due to the expanding responsibilities of family therapists that are associated with doing social justice advocacy work. In particular, we hoped to highlight the critical role of exploring students’ positionalities and societal privileges as they prepare to engage in social justice advocacy work with all clients. While social justice mentoring is challenging for both faculty and students, we feel that the voices of SOCIAL JUSTICE MENTORING 55 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations our graduate students (as shared in the final section of the paper) illustrate the value of doing this important work. References Almeida, R. V., Dolan-Del Vecchio, K., & Parker, L. (2008). Transformative family therapy: Just families in a just society. Boston, MA: Pearson Education, Inc. Aponte, H. J. (1994). How personal can training get? Journal of Marital & Family Therapy, 20, 3-15. doi:10.1111/j.1752-0606.1994.tb01007.x Aponte, H. J., Powell, F. D., Brooks, S., Watson, M. F., Litzke, C., Lawless, J., & Johnson, E. (2009). Training the person of the therapist in an academic setting. Journal of Marital and Family Therapy, 35(4), 381-394. doi:10.1111/j.1752-0606.2009.00123.x Aponte, H. J., & Winter, J. E. (1987). The person and practice of the therapist: Treatment and training. Journal of Psychotherapy & the Family, 3(1), 85- 111. doi:10.1300/J287v03n01_10 Arredondo, P., & Arciniega, G. M. (2001). Strategies and techniques for counselor training based on the multicultural counseling competencies. Journal of Multicultural Counseling and Development, 29, 263-273. Retrieved from http://www.multiculturalcenter.org/jmcd/ Baldwin, M. (Ed.). (2000). The use of self in therapy (2nd ed.). Binghamton, NY: Haworth. Bemak, F., & Chung, R. C.-Y. (2007). Training counselors in social justice. In C. C. Lee (Ed.), Counseling for social justice (2nd ed.) (pp. 239-257). Alexandria, VA: American Counseling Association. Blevins-Knabe, B. (1992). The ethics of dual relationships in higher education. Ethics & Behaviors, 2(3), 151-163. Retrieved from http://www.informaworld.com/smpp/title~content=t782890670~db=all Carlson, T., & Erickson, M. (1999). Recapturing the person in the therapist: An exploration of personal values, commitments, and beliefs. Contemporary Family Therapy: An International Journal, 21(3), 57-76. Retrieved from http://www.springerlink.com/content/104691/ Constantine, M. G., Hage, S. M., Kindaichi, M. M., & Bryant, R. M. (2007). Social justice and multicultural issues: Implications for the practice and training of counselors and counseling psychologists. Journal of Counseling & Development, 85(1), 24-29. Retrieved from SOCIAL JUSTICE MENTORING 56 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations http://aca.metapress.com/app/home/journal.asp?referrer=parent&backto=li nkingpublicationresults,1:112973,1&linkin=634064016747997500 Feminist Therapy Institute. (1999). Feminist therapy code of ethics. Retrieved from http://www.feminist-therapy-institute.org/ethics.htm Fontes, L. A., Piercy, F., Thomas, V., & Sprenkle, D. (1998). Self issues for family therapy educators. Journal of Marital and Family Therapy, 24(3), 305-320. doi:10.1111/j.1752-0606.1998.tb01087.x Goodman, L.A., Liang, B., Helms, J.E., Latta, R.E., Sparks, E., & Weintraub, S.R. (2004). Training counseling psychologists as social justice agents: Feminist and multicultural principles in action. The Counseling Psychologist, 32(6), 793-837. doi:10.1177/0011000004268802 Gottlieb, M. C., Robinson, K., & Younggren, J. N. (2007). Multiple relations in supervision: Guidance for administrators, supervisors, and students. Professional Psychology: Research and Practice, 38(3), 241-247. Retrieved from http://psycnet.apa.org/index.cfm?fa=browsePA.volumes&jcode=pro Green, R.-J. (1998). Race and the field of family therapy. In M. McGoldrick (Ed.), Re-visioning family therapy: Race, culture, and gender in clinical practice (pp. 93-110). New York: The Guilford Press. Guerin, P. J., & Hubbard, I. M. (1987). Impact of therapist’s personal family system on clinical work. Journal of Psychotherapy & the Family, 3(2), 47- 60. Retrieved from http://www.informaworld.com/smpp/title~db=all~content=t904385484 Halevy, J. (1998). A genogram with an attitude. Journal of Marital and Family Therapy, 24(2), 233-242. doi:10.1111/j.1752-0606.1998.tb01079.x Hardy, K. V., & Laszloffy, T. A. (1995). The cultural genogram: Key to training culturally competent family therapists. Journal of Marital and Family Therapy, 21(3), 277-237. doi:10.1111/j.1752-0606.1995.tb00158.x Hardy, K. V., & McGoldrick, M. (2008). Re-visioning training. In M. McGoldrick & K. V. Hardy (Eds.), Re-visioning family therapy: Race, culture, and gender in clinical practice (2nd ed.) (pp. 442-460). New York: The Guilford Press. Holmes, D. L., Rupert, P. A., Ross, S. A., & Shapera, W. E. (1999). Student perceptions of dual relationships between faculty and students. Ethics & Behavior, 9(2), 79-107. Retrieved from http://www.informaworld.com/smpp/title~content=t782890670~db=all SOCIAL JUSTICE MENTORING 57 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations Johnson, A. G. (2006). Privilege, power, and difference (2nd ed.). Boston, MA: McGraw Hill. Kiselica, M. S., & Robinson, M. (2001). Bringing advocacy counseling to life: The history, issues, and human dramas of social justice work in counseling. Journal of Counseling & Development, 79(4), 387-397. Retrieved from http://aca.metapress.com/app/home/journal.asp?referrer=parent&backto= linkingpublicationresults,1:112973,1&linkin=634064016747997500 Lee, C. C. (1998). Counselors as agents of social change. In C. C. Lee & G. R. Walz (Eds.), Social action: A mandate for counselors (pp. 3-14). Alexandria, VA: The American Counseling Association and ERIC Counseling & Student Services Clearinghouse. Lusk, A. B., & Weinberg, A. S. (1994). Discussing controversial topics in the classroom: Creating a context for learning. Teaching Sociology, 22, 301- 308. Retrieved from http://www.jstor.org/stable/1318922 McDowell, T., Fang, S-R., Young, C. G., Khanna, A., Sherman, B., & Brownlee, K. (2003). Making space for racial dialogue: Our experience in a marriage and family therapy training program. Journal of Marital and Family Therapy, 29(2), 179–194. doi:10.1111/j.1752-0606.2003.tb01199.x McDowell, T., & Jeris, L. (2004). Talking about race using critical race theory: Recent trends in the Journal of Marital and Family Therapy. Journal of Marital and Family Therapy, 30(1), 81-93. doi:10.1111/j.1752- 0606.2004.tb01224.x McDowell, T., & Shelton, D. (2002). Valuing ideas of social justice in MFT curricula. Contemporary Family Therapy: An International Journal, 24(2), 313–331. Retrieved from http://www.springerlink.com/content/104691/ McGeorge, C. R., & Carlson, T. S. (in press). Deconstructing heterosexism: Becoming an LGB affirmative heterosexual couple and family therapist. Journal of Marital & Family Therapy, doi:10.1111/j.1752- 0606.2009.00149.x McGeorge, C., Carlson, T., Erickson, M., Guttormson, H. (2006). Creating and evaluating a feminist informed social justice couple and family therapy training model. Journal of Feminist Family Therapy, 18(3), 1-38. doi: 10.1300/J086v18n03_01 Mio, J. S., & Barker-Hackett, L. (2003). Reaction papers and journal writing as SOCIAL JUSTICE MENTORING 58 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations techniques for assessing resistance in multicultural courses. Journal of Multicultural Counseling and Development, 13, 12-19. Retrieved from http://www.multiculturalcenter.org/jmcd/ Owen, P. R., & Zwahr-Castro, J. (2007). Boundary issues in academia: Student perceptions of faculty-student boundary crossings. Ethics & Behavior, 17(2), 117-129. doi:10.1080/10508420701378065 Parra-Cardona, J., Holtrop, K., & Cordova, D. (2005). “We are clinicians committed to cultural diversity and social justice”: Good intentions that can wane over time. Guidance & Counseling, 21, 36–46. Retrieved from http://search.ebscohost.com/direct.asp?db=f5h&jid=%22GUC%22&scope =site&authtype=ip,cpid&custid=s7473661 Prouty Lyness, A., & Helmeke, K. B. (2008). Clinical mentorship: One more aspect of feminist supervision. Journal of Feminist Family Therapy, 20(2), 166-199. doi:10.1080/08952830802023318 Rosenberg, A., & Heimberg, R. G. (2009). Ethical issues in mentoring doctoral students in clinical psychology. Cognitive and Behavioral Practice, 16, 181-190. doi:org/10.1016/j.cbpra.2008.09.008 Satir, V. (1988). The new peoplemaking. Palo Alto, CA: Science and Behavior Books. Speight, L. S., & Vera, E. M. (2004). A social justice agenda: Ready, or not? The Counseling Psychologist, 32(1), 109-118. doi:10.1177/0011000003260005 Steele, J. M. (2008). Preparing counselors to advocate for social justice: A liberation model. Counselor Education & Supervision, 48, 74-85. Retrieved from http://www.unco.edu/ces/ Tamasese, K., & Waldegrave, C. (1993). Cultural and gender accountability in the “Just Therapy” approach. In C. Waldegrave, K. Tamasese, C. Tuhaka, & W. Campbell (Eds.), Just Therapy – a journey: A collection of papers from the Just Therapy team, New Zealand (pp. 81-96). Adelaide, South Australia: Dulwich Centre. Timm, T. M., & Blow, A. J. (1999). Self-of-the-therapist work: A balance between removing restraints and identifying resources. Contemporary Family Therapy: An International Journal, 21, 331-351. Retrieved from http://www.springerlink.com/content/104691/ Todd, T. C., & Storm, C. L. (1997). Thoughts on the evolution of MFT SOCIAL JUSTICE MENTORING 59 Michigan Family Review, 14(1), 42-59, 2010 © Michigan Council on Family Relations supervision. In T. C. Todd & C. L. Storm (Eds.), The complete systemic supervisor: Context, philosophy, and pragmatics (pp.1-16). Boston, MA: Allyn and Bacon. Vera, E. M., & Speight, S. L. (2007). Advocacy, outreach, and prevention: Integrating social action roles in professional training. In E. Aldarondo (Ed.), Advancing social justice through clinical practice (pp. 373-388). Mahwah, NJ: Lawrence Erlbaum Associates, Inc. Williams-Nickelson, C. (2009). Mentoring women graduate students: A model for professional psychology. Professional Psychology: Research and Practice, 40(3), 284-291. doi:10.1037/a0012450 
work_oh6hpxphf5cupimtnjaqg4k4ki	----	Sustainability and Social Justice Procedia - Social and Behavioral Sciences 62 ( 2012 ) 677 – 681 1877-0428 © 2012 Published by Elsevier Ltd. Selection and/or peer review under responsibility of Prof. Dr. Hüseyin Arasli doi: 10.1016/j.sbspro.2012.09.115 WC-BEM 2012 Sustainability and social justice Cristina Balaceanu a *, Diana Apostol a, Daniela Penu a aDimitrie Cantemir Christian University, Splaiul Unirii 176, Bucharest, Romania Abstract The importance of sustainability results from the marginal benefits for human development through which incomes, due to the process of redistribution, support human development. Human development is understood as the measure in which individual reaches a certain living standard by satisfying his subjective, objective and factual needs generated by the economic, social, politic and cultural environment, and becoming aware of the ways of their satisfaction, adjusting himself to the existing and potential resources. This means that human development is achieved if concepts such as social justice and economic justice are implemented. Keywords: sustainability, social justice, economic justice, human development; 1. Introduction The paradigm of the sustainable development in which the economic and social rapports encourage and position the societal treasure in a limited temporal framework, but sufficiently large to meet the expectations of the next become imminent. Human development assures the interaction of the elements of humanity with the economical achieved. 2. Body The concept of development has changed fundamentally in relation to the expectations of society and individuals on one hand, and of the state or the institutions, on the other. Currently, the development refers to what is useful to the individual to achieve certain parameters of development without prejudicing the natural environment, with community support only. The inclusion within the development of the concepts of human development, economic development and sustainable development emphasizes the comprehensiveness of the development focused on creating economic conditions to ensure the prerequisites of human development. Initially, the comprehensive approach of the development, according to Joseph Stiglitz, implies strengthening the markets, but equally important is the strengthening of the government and the identification, as each country reaches a certain stage of development, of the correct ratio of the government market mechanism (Stiglitz, 2007). Our conception on the development exceeds the governance, the state no longer having the means and tools to satisfy the social needs, from a shortage of financial resources and defective management on them. For this reason, along with markets, government and individuals, the community is an important factor in the generation of *Cristina Balaceanu. Tel.: +40-072-354-4537 E-mail address: movitea@yahoo.com © 2012 Published by Elsevier Ltd. Selection and/or peer review under responsibility of Prof. Dr. Huseyin Arasli Available online at www.sciencedirect.com © 2012 Published by Elsevier Ltd. Selection and/or peer review under responsibility of Prof. Dr. Hüseyin Arasli Open access under CC BY-NC-ND license. Open access under CC BY-NC-ND license. http://creativecommons.org/licenses/by-nc-nd/3.0/ http://creativecommons.org/licenses/by-nc-nd/3.0/ 678 Cristina Balaceanu et al. / Procedia - Social and Behavioral Sciences 62 ( 2012 ) 677 – 681 sustainable development, this community is assimilated with the local economy. The concept of local economy resides in the need for regional economic development, of the local economic community whose goal is to implement economic reform programs targeting both the infrastructure and the increase of the welfare of citizens. There is no universally accepted definition of the local economy, it has a certain degree of autonomy from the national institutional economy, but combines local specificities, existing economic resources, create strategies resource exploitation by attracting investors for the development, both horizontal (addition of new businesses that produce goods / services similar to those of the company and operates in the same sequence of the chain research - development - production - sales) and vertical (extending the range of business activity within the industry it belongs to), aimed at creating jobs, and ultimately increasing the economic welfare of the community. The omnipresent terms in the local economy are: economic resources, local authorities, public-private partnership, investors, sustainable development, equitable intergenerational exchange, social enterprises. These terms are part of shaping the concept of social justice or at least attempt to configure the path of the concept of social justice. Social justice is a moral and political construction aimed at equal rights and collective solidarity, advocating for a more just society, assured by the redistribution of wealth, and realize its perpetual state of injustice. Social justice is based on equal rights of any person and the possibility of all human beings, without any discrimination, to benefit from economic and social progress, irrespective of the political or social-economic doctrine. Ensuring social justice goes beyond the state of the revenues from economic activity, being equally an expression of rights, dignity and freedom of expression, of economic, social and political autonomy. Or, as Sen the crucial role of income in the advantages enjoyed by different persons, the relationship between incomes and the achievements and personal freedoms is neither constant nor automatic or (Sen, 2004). Above income or at least complementary to it matter the individual welfare which incumbent besides the income, the freedom of expression, the freedom to communicate, to relate and act within the limits accepted and enforced by the Community. John Rawls shows that a society is fair by following these principles, in the exact order: all social values freedoms and opportunities, income and wealth as well as social bases of self-esteem, must be distributed equally unless from the unequal distribution of some, or all, would benefit everyone (Rawls, 1971). Although it is not necessary that the distribution of wealth and income to be equal, it should be beneficial to everyone and at the same time, the positions of authority and responsibility must be accessible to all. The distribution of wealth and income and of the positions of authority and responsibility must be consistent both with the basic freedoms and the equality of opportunity (Caraian, 2008). Currently may be submitted three dimensions of the concept of social justice: the symbolic dimension, namely the recognition, which means not the valorisation of a group identity, but the claim of an equal status in social interactions, the economic dimension, respectively the wealth redistribution, and the political dimension, respectively the access to the political representation for certain groups (Fraser, 2008). The applicability of the concept of social justice involves a trivalent relation between market, institutions and needs, which strengthens the relation between social justice and economic justice. Figure 1-The concept of social justice In fact, on a scientific level, the two concepts differ in terms of content - "social" and "economic", the genus being the same: "human development". The issue of achieving welfare involves both the state and the market: the state through economic policy levers can influence the effective allocation of economic resources, particularly 679 Cristina Balaceanu et al. / Procedia - Social and Behavioral Sciences 62 ( 2012 ) 677 – 681 through monetary and fiscal levers, which contribute to satisfy the needs of individuals to the extent that the market, through competitive mechanisms, can ensure efficient use of economic resources. Thus, the problem of ensuring the welfare of individuals is limited to increasing the effectiveness of the state (of the economic policies) within redistributing wealth in the economy combined with increasing the efficiency of the market mechanism in the production of economic incomes. What maximizes the individual welfare? How to maximize the efficiency of resource utilization, taking into account the effectiveness of the process of attracting and using resources to meet the needs of individuals in order to increase welfare? In this respect, we will consider the assumption that welfare maximization implies ensuring social justice, on one hand, and ensuring sustainable development of the economy, on the other. So, welfare can be achieved when reducing the degree of disparity between communities, as the subject of the local economy, without to consider reducing the disparity between individuals, this being a consequence of the physico-psycho-socio-economic development of each individual in part; in this analysis is important, in terms of social justice, the individual reporting at the formal act of economic policy, namely the extent to which support the redistribution of economic wealth in terms of attitudes towards labor and community. In analyzing the degree of economic disparity we use an indicator of disparity, D, used by EUROSTAT; (Gross Domestic Product, Eurostat Regional Yearbook 2011, Eurostat) defined as the sum of the absolute differences between regional and national GDP per inhabitant, weighted on the basis of the regional share of population and expressed in percent of the national GDP per inhabitant: where: yi is the regional per-inhabitant GDP of region i; Y is the national avarage per-inhabitant GDP; pi is the population of region i; P is the population of the country; n is the number of region of the country. Table 1. Indicator of Disparity, Romania, 1996-2009 Year Real GDP growth rate volume, percentage change on previous year D Indicator, % 1996 3.2 18.863 1997 -4.9 20.755 1998 -2.1 23.61 1999 -1.2 25.389 2000 2.4 30.913 2001 5.7 27.996 2002 5.1 31.281 2003 5.2 30.346 2004 8.5 29.671 2005 4.2 35.067 2006 7.9 36.152 2007 6.3 37.53 2008 7.3 40.173 2009 -6.6 39.163 Source: Contribution of authors based on Eurostat and INS-Romania Data. 680 Cristina Balaceanu et al. / Procedia - Social and Behavioral Sciences 62 ( 2012 ) 677 – 681 The above statements make us see an increasing disparity level among regions (counties of Romania being assimilated to regions). Thus, the causes leading to those increasing results can be very diverse: the low level of investment attracting in order to exploit the local potential, the poor use of workforce, the low labor productivity correlated with relatively low weight of economic goods on markets, the poorly equipped technical labor, the prevalence of self-consumption economy and subsistence farming compared to the knowledge economy, the low level of incorporation of research and high technology in economy. We analyze further the possibility of local economic resources to be allocated efficiently into the local economy to reduce disparity among regions, medium and long term. Most authors analyze the principles, parameters and policies "of local economic development-DEL" in relation to the effective utilization of economic resources available in the respective local economies. Local economic development is an activity designed and implemented by local actors in public and private sectors of the community through a set of programs and projects. This process increases the welfare of local members and economic agents (Profiroiu A., Racoviceanu S., N. Taralunga, 1998). Achieving this goal requires cooperation between public and private sector representatives, in the use of the human, technical and financial resources of a community associated in a sectorial or intersectorial structure of activity, private or public, aimed at creating employment (The Council for Urban Economic Development, Local Economic Development, p. 24, 1998). In essence, local development is a development policy, mainly economic, applied to a territory and concerning the local community. By means of factors and local social and economic structures, mainly local small and medium enterprises (SMEs) this policy materialize its objectives related to the use and the development of local resources and the creation and maintaining of a stable and profitable business environment (Porojan D., Iftimoaie C, 2008). The local economy also depends on the financial resources available to local authorities (local taxes paid by economic agents and individuals). Therefore, enterprises benefit from local economic policies and, by compulsory levies at local level, finances mainly local government expenditure, which shows that local economic development is the result of collective actions of public and private sectors and the local community. The problem that arises and can be exemplified by Indicator D, is how to stimulate the local economies which are precarious in economic resources (less natural resources, aging workforce, poorly qualified or currently underemployed population) to develop sustainable economic activities , benefiting at the same time from the transfer of financial resources and technical assistance from more prosperous local economies. In these conditions, the market mechanism can not make alone an allocation of economic resources, especially financial ones. Therefore, the state through policies and economic institutions is able to stimulate the business environment by using fiscal and monetary levers to attract investment, develop the local market using specific products of the local economy, and to train superior labor in an educational system centred on skills and high using of the resources of the local economy. An important source for local economic development is promoting entrepreneurship locally, regionally, by providing the means to support entrepreneurial activities: institutional and financial support (accessibility to attract financial capital) or promoting various forms of association for entrepreneurship development. We take into account the identification of those motivations which find appropriate to encourage and support entrepreneurship in poorer local economies who want to develop the economy and hence the wellbeing of individuals: at whatever stage of economic development, one can benefit from promoting entrepreneurship both types: mimetic, meaning that technology should be brought from abroad, especially through FDI, and innovator, through innovations adapted to the unique circumstances of local economies; the adoption of all the principles of entrepreneurial capitalism - the adoption of the set of incentives for people to become entrepreneurial and productive and to use productive means for tracking personal goals through a combination of power, wealth and prestige; regulations and institutions have to reduce the obstacles to such activities and should provide or at least not intervene in the granting of financial rewards on success, and to provide some assurance that these rewards will not be withdrawn. Local economy development is, as noted, an important prerequisite for social justice, which will also lead to the reduction of the disparity between regions. This fact is even more obvious as it is emphasized the economic nature of the social justice. In this respect, will be considered: 681 Cristina Balaceanu et al. / Procedia - Social and Behavioral Sciences 62 ( 2012 ) 677 – 681 adjustment of economic divergence of local economies by maintaining a low level of taxation, to increase the interest in entrepreneurship development, stimulating economic initiative and surfacing economy; reducing the underground economy by eliminating the subsistence economy. Initiation of measures to stimulate the creation of markets for products of the local economy, especially those produced in households, by creating mechanisms of penetration of these products in the consumption basket of citizens, in order to increase the premises of monetization of subsistence economy, developed especially in rural areas; the creation of technical assistance and research programs in order to implement an advanced technological and research infrastructure in local economies to reduce development gaps; focusing on the individual and his needs, as the main subject of the local economy, in the sense that it could stimulate his motivation and create an involving behaviour in the act of local economy; local economy development, in consensus with sustainable development principles. Conclusion By actions centred on human development and entrepreneurship, the society will ensure a potential to generate rational economic behaviour, based on efficient use of resources, on awareness of the resource depletion and hence the possibility of market expansion. In order to ensure the social justice, to strengthen the economic justice and to reduce the economic disparities among regions, the economic process should be based on the ability to assume a complex of institutional and market measures to stimulate the growth of local economies by exploiting the human capital, the ecological capital and the incomes generated by the act of production and sales. The increase in purchasing power and consumption capacity of the individual, as part of the local economy, will follow the process of creating the revenues through market, supported by structural economic policies, based on productivity incentive measures, as far as the economic goods produced respond to a stimulus of domestic and external demand. This should be in correlation with exploitation of comparative advantages of local economy in order to increase its competitive ability. Acknowledgement ,,This work was supported by the project "Post-Doctoral Studies in Economics: training program for elite researchers - SPODE" co-funded from the European Social Fund through the Development of Human Resources Operational Programme 2007-2013, contract no. POSDRU/89/1.5/S/61755". References Caraiani, O. (2008). Dreptate sau moralitate Rawls, J. (1971). A Theory of Justice, Cambridge, MA, Harvard University Press, Fraser, N. (2008). Scales of Justice: Reimagining Political Space in a Globalizing World, Columbia University Press, Stiglitz, J. (2006). Making globalisation, W.W., Norton Company, Inc., New York, Sen, A. (2004). Dezvoltarea ca libertate Porojan, D., & Iftimoaie, C. (2008). The Council for Urban Economic Development, Local Economic Development, p. 24, 1998 
work_om3af4kn4zewrbbwnsppfxgtty	----	\\Pi\pi\WINDOWS\Desktop\Scielo\ INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE* Álvaro de Vita I What is the standard by which we are to evaluate and compare an individual’s quality of life? On what aspects of a person’s life are we to concentrate in order to assess the level of welfare that they enjoy or, compared to what is within reach of others (in the same society, but also in other societies), they ought to enjoy? One answer, which remains immensely influ- ential in the welfare economics and even in con- temporary political theory, is what John Harsanyi has dubbed “principle of preference autonomy”: “In deciding what is good and what is bad for a given individual, the ultimate criterion can only be his own wants and his own preferences.” (Harsanyi, 1982, p. 55). This is a disturbing answer for all those who, like me, believe that there ought to be a non- subjective basis for appraising and comparing levels of welfare for different individuals (and for different societies). It goes without saying that economic and social rights are included in the Universal Declara- tion of Human Rights on the basis of the implicit assumption that such a basis exists. One would be hard-pressed to demonstrate di- rectly the plausibility of an “objective” conception of welfare. What is possible, in the first place, is to dem- onstrate why the subjective conception (that is to say, the conception that understands welfare solely in terms of the preferences of the agents themselves) fails to offer a plausible interpretation of individual welfare and, above all, fails to enable an acceptable basis for the comparison of levels of welfare. Second- ly, we must ask ourselves whether there isn’t a distinct way of dealing with the central issue (which I will set forth later) for which the subjective conception pre- sents itself as a proposed solution. These are the two points I shall address in this essay. And although it is not my specific concern, I believe that at least some of the arguments I propose to reject the notion of indi- vidual preference as a sufficient basis for judgments of social welfare can be extended to relativist concep- tions of welfare (that is, those that view their assess- ment as inseparable from local beliefs and moral tra- ditions). Two clarifications are in order with regard to the present work. The discussion I carry out below concerns some of the issues connected with the * Published originally in Revista Brasileira de Ciências Sociais, n. 29, October 1995, pp. 159-174. Translated by Christopher Ballantines and revised by the author. Brazilian Review of Social Sciences, special issue, no. 1, October 2000 96 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 philosophy of welfare. If my argument is reason- ably successful, one might obtain from it an answer to the following question: why is it more justifiable to evaluate individual welfare in terms of the access people have to certain goods, resources and op- portunities (such as those laid forth in the social rights of the UN charter) than to evaluate it (solely) in terms of the satisfaction of individual preferenc- es? The answer to this question might provide a moral basis for interpersonal comparisons of wel- fare. To know whether this allows for the deriva- tion of a precise measuring-stick to evaluate public policy constitutes a separate question altogether (which I shall not attempt to address, to the possible frustration of social scientists). As for the second clarification, I shall address herein the place that individual preferences ought to occupy in interpersonal comparisons of welfare, judgments from which we cannot shy in cases where it is necessary to assess the distribution (or to evaluate the distribution that effectively has been realized) of scarce social resources. This is a standpoint appropriate to a theory of social justice. Another point of view by which one might consid- er individual preferences is to see them as inputs of the political process. From this standpoint, our foremost concern lies with the institutional mech- anisms for collective decision-making. Among the kinds of questions to be asked along the way are these: should the collective decision-making pro- cess be organized to aggregate and express — as faithfully as possibly — the effective preferences of citizens; or should it be organized so as also to permit citizens to create or revise their own prefer- ences regarding public issues? These are questions that should occupy an important place in our reflections on democracy.1 Strictly speaking, how- ever, they do not pertain to the domain of justice.2 What a theory of social justice ought to facilitate is the refinement of standards by which it would be possible to judge the moral quality of the results of the political process. II We would like to know why judgements about social justice cannot be based merely on the satisfaction of individual preference; or, to state matters otherwise, what reasons are there to reject the idea that social utility can only be conceived of in terms of the aggregation of indi- vidual utilities. This is Harsanyi’s (1982, p. 54) view: “The utilitarian theory I have proposed de- fines social utility in terms of individual utilities, and defines each person’s utility function in terms of his personal preferences. Thus, in the end, social utility is defined in terms of people’s per- sonal preferences.”3 However, before critiquing this position, we must first determine the place from which the utilitarianism of preferences de- rives its plausibility. The first point to clarify is that Harsanyi’s principle has no need to base itself on a benthamite hedonist psychology. Hedonist and preferential utilitarianisms share only one point in common. Both conceive of the individual’s welfare in a subjective manner: while the former envisions it in terms of the presence of certain conscious mental states, of pleasure or of pain, discernible through introspection, the latter conceives it in terms of the satisfaction or frustration of preference. (Such mental states and preferences would belong to the person whose welfare is being assessed.) The similarities, nonetheless, end there. Un- qualified hedonism offers a far too implausible explanation for individual welfare. We do a great many things independent of the subjective sensa- tions of pleasure or pain they may produce in us. There are cases of exceptional achievement, for instance, whether professional, scientific or artistic, that can only occur after considerable personal sacrifice to their authors — either because they impose suffering or because they require the for- bearance of things that produce conscious states of pleasure. This is not to mention examples of human experience which do not necessarily entail such lofty states of individual excellence. I can do things whose goal is to produce desirable states in others, or even to contribute to some objective state of things. If we feel forced to say that all of the foregoing occur at the expense of individual welfare we must then suspect that at least a part of the problem lies in the conception — a hedonist one, by the way — of welfare that we have adopted. INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 97 John Stuart Mill tried to escape these difficul- ties of the hedonist conception by discerning “high- er pleasures” from “lower pleasures” and postulat- ing that man, under normal conditions, draws greater utility from the higher pleasures and from the exercise of their higher capabilities. “It is better to be a human being dissatisfied, than a pig satis- fied; better to be a Socrates dissatisfied, than a fool satisfied. And if the fool or the pig are of a different opinion, it is because they only know their own side of the question. The other party to the comparison knows both sides.” (Mill, 1961, p. 333). Through his doctrine of higher and lower pleasures, Mill in fact is adopting an objective conception of human happi- ness on the assumption that the ingredients for this conception are the same as those producing desir- able conscious states, or those towards which indi- viduals develop the more intense preference. Mill’s view (which we might designate as “objectivist utilitarianism”) is therefore removed from the sub- jective conceptions of welfare that I am confronting. On this point we can see where the appeal for preferential utilitarianism arises. For when po- sitioned against unqualified hedonism, the notion of utility ceases to have a necessary connection with the sensory states of the agent. An extreme example, observed by Griffin and Parfit, helps shed light on this. Wracked by pain from an advanced cancer, Freud, near the end of his life, saw himself facing a choice: to take painkillers, which would plunge him in a state of mental torpor, or not to take them and, although tormented by the pain, to retain the ability to think clearly. Freud chose the second alternative. From the standpoint of unqual- ified hedonism, we would say that the satisfaction of this preference diminished Freud’s level of welfare; according to preference utilitarianism, we would say that his choice was the best, all things considered, for his own welfare. This example illustrates the strength of Harsa- nyi’s principle, which makes for a more frontal challenge to the “utilitarian objectivism” that I have attributed to Mill.4 It is the ideal of neutrality: in our judgments of social justice (or “social utility”), we should avoid value judgments aimed at individ- ual preference and choice. The better to clarify what is at issue here, let us suppose that we are in a position to decide who gets what with regard to the distribution of a given scarce social resource. The neutrality ideal rejects the option to distribute resource X (or more of resource X) to person A, instead of distributing it to person B (or the option to give B less of X) because we believe that A’s preferences are more valuable (because we be- lieve that X will be used to satisfy preferences that we deem more valuable). Let us say that the decision at hand is whether to distribute a basket of goods to A or to B (assuming that both are in similar circumstances). Neutrality would prevent us from delivering the basket to A, and not to B, because we know — as a matter of fact — that B has a tendency to drink (and could also trade the basket for booze) and because we believe — as a value judgment — that the preference for temperance is better than the preference for drunkenness. The preference-autonomy principle requires that we find another basis for our decision. I will return to this point later. The plausibility on face value of the utilitari- anism of preferences results from the answers it provides — at first sight, in inarguable fashion — to the problem of neutrality (as it was characterized in the preceding paragraph) in comparisons of indi- vidual welfare. The power of this response lies in its rejection of paternalism (in the form of “I know what’s best for you”), especially in its connection with public policy decisions. We are not willing to concede to public authorities the discretionary powers to rule over the distribution of scarce resources — and over the use or forbearance of use of collective coercion in a general manner — on the basis of what they believe that each of us should want or do. And so it is paternalism that constitutes the problem to which preference utilitarianism avails itself as the answer. If we wish to arrive at a non- subjective understanding of individual welfare (and of the comparison of levels of welfare) and also reject the discretionary interference in individ- ual preferences and choices, then we cannot shrink from envisioning unique solutions to the problem of paternalism. Before we address this task, however, it is time we saw where Harsanyi’s principle fails. 98 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 III One point remains to be clarified in my comparison between hedonist and preference util- itarianisms. Whereas hedonism (subjective or ob- jective) was held solely to be a conception of individual welfare — that is to say, a theory of what makes life good for whoever lives it — preference utilitarianism was viewed not only in this light, but also as a moral theory. To say that a thing is good for a person (that it is in their interest) because it produces in them a conscious state of pleasure fails to tell us anything at all about the kind of claim this interest presents to others. Harsanyi’s principle, however, from the out- set is one of a distributive nature. What he propos- es is that the satisfaction of individual preferences ought to be erected on the ultimate criteria for the distribution of scarce resources (and, generally speaking, for any and all use of collective coer- cion). When making public policy decisions, or when assessing them from an impartial point of view, we should only take into account the inten- sity of individual preferences and their distribution in the community and abstain — as we have seen in the foregoing section — from judging these preferences on their intrinsic merits. The basis for our distributive decisions should be constituted solely from the force and the degree of diffusion of individual preferences. One can doubt whether it is at all possible to carry out interpersonal comparisons of welfare that take into account the intensity of individual prefer- ences. Even if we agree that individual welfare should be assessed solely in terms of utility, and the latter solely in terms of the satisfaction of individual preferences, the problem would still remain as to which aggregate procedure we should adopt to calculate a “social function of utility”. The rule of the majority, a possible candidate to fulfill this role, is insensitive to the intensity of preferenc- es.5 However, at this point I do not wish to dwell on matters of practicality, for a principle may hold practical importance even though we lack an algorithm with which to apply it. The strongest objections to the utilitarianism of preferences are all related to the following question: on what basis — and without straying too far from the “principle of preference autonomy” — can we exclude certain preferences from our judg- ments of social justice? This question immediately raises another: what kinds of preferences can we reasonably exclude from these judgments? I shall examine three types of preferences that challenge any plausible conception of justice. The first cate- gory consists of offensive preferences; the second, of those preferences whose satisfaction imposes excessive claims upon others (the case of “expen- sive tastes”); and the third, of preferences whose satisfaction imposes claims that are more modest than would have been the case under different circumstances. To comment briefly on offensive preferenc- es, we understand them as being of a discriminato- ry nature and/or whose satisfaction (always bear- ing in mind public policy decisions) is harmful to life, to human dignity or to the freedom of others. Are we willing to admit, for instance, that attitudes such as “prisoners are better off dead” may have unimpeded currency to determine how collective coercion is to be employed? Of course not. The classical liberal strategy to deal with this sort of problem consists of protecting certain individual interests, protecting them from welfare-oriented calculations that contain an offensive component of this type by means of a constitutional charter of rights and even possibly by means of judicial review of laws approved by legislatures.6 Harsanyi (1982, p. 56) confronts this problem by suggesting that human compassion, upon which utilitarian morals are founded, legitimizes the exclusion of “all clearly anti-social preferences, such as sadism, envy, resentment and malice” from the calculus of social utility. Even if we accept this first qualification to the principle of preference autonomy, graver difficul- ties arise when we move to the second kind of preference mentioned above. Subjective welfarism proposes to take into account variations in individ- ual preference. Suppose we believe that a basic objective should be to make people as equal as possible in the degree of satisfaction they achieve from their own preferences. The problem that emerges is this: on what basis are we to arbitrate INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 99 the reasonableness of demands that the satisfaction of various preferences poses before others, indeed, before society? To adapt an example suggested by Kenneth Arrow (1973, p. 254), consider a case where one individual satisfies his gastronomic preferences with water and soybean flour while another feels terribly unhappy without fine meals and fine wines. If we adopt the intensity of prefer- ences as a standard to evaluate individual welfare and wish to equalize the level of welfare for both individuals we must then incline — however counter-intuitively — to propose that a greater portion of scarce social resources be targeted to the individual (in this case, the second) who is the more efficient consumer of resources — that is, the individual who is able to derive greater utility than the other from the consumption of the same basket of resources (Scanlon, 1975, p. 659). It is counter-intuitive to maintain that a per- son who has developed “expensive tastes” ought to do justice to a greater parcel of scarce social resources in order to achieve the same level of satisfaction as that enjoyed by a person of more modest tastes and ambitions. Nevertheless, it is not easy to see how subjective welfarism could stand up to this objection.7 As Dworkin (1981, pp. 185- 246) forcefully argued, conceptions of welfare equality — conceptions, that is to say, that propose to equalize individual welfare according to the subjective appraisal that each individual makes of his own level of welfare — are in the end contra- dictory. In interpersonal comparisons of welfare, whatever the conception of equality we adopt, we are led inevitably to evaluate the point up to which the social claims arising from the satisfaction of certain preferences are reasonable. What is reason- able, however, cannot be discerned on the basis of the attributes of the preferences nor of their inten- sity — it is a pattern external to the preferences themselves. If we cannot avoid falling back to a notion of “reasonable claims” in interpersonal comparisons, then our concept of equality, al- though held to a subjective standard, already con- tains prior built-in assumptions about distributive equity. And these prior assumptions require justifi- cation independent of the individual interests to be compared. Harsanyi does not ignore the objection of expensive tastes: “It would be absurd to assert that we have the same moral obligation to help other people in satisfying their utterly unreasonable wants as we have to help them in satisfying their very reasonable desires.” But he faces this objec- tion by invoking a distinction that cannot easily be squared with his own principle of preference autonomy: [...] All we have to do is to distinguish between a person’s manifest preferences and his true prefer- ences. His manifest preferences are his actual preferences as manifested by his observed behav- ior, including preferences possibly based on erro- neous factual beliefs, or on careless logical analy- sis, or on strong emotions that at the moment greatly hinder rational choice. In contrast, a per- son’s true preferences are the preferences he would have if he had all the relevant factual information, always reasoned with the greatest possible care, and were in a state of mind most conducive to rational choice. (Harsanyi, 1982, p. 55) It is hard to imagine that this distinction between manifest preferences and true preferenc- es does not eventually constitute the thin end of the wedge precisely for that which the principle of preference autonomy above all rejects: paternal- ism. The temptation faced by the utilitarian policy- maker would be to start from his preferred social utility function and then to postulate that it is in accord with the individual utilities that derive from the satisfaction of the “right” preferences. The point Dworkin emphasizes stands: when we com- pare individual interests, the standard we employ is not contained within those interests. And it would do very little good to replace the standard of satisfaction of individual preferences with the stan- dard of preferences held by those who make policy decisions. The third kind of preference I have laid forth above (and which might be grasped as an impor- tant subset of the second kind) remains to be considered. How can we evaluate preferences 100 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 whose satisfaction requires less from others if institutional background circumstances were oth- erwise? This is the problem that Elster (1983, pp. 109-140) has called “sour grapes”. A person may attach little value to a good, a right or an opportu- nity; they may not even appear in his scale of preferences for the simple reason that he cannot easily develop a preference for something he cannot see — fairly realistically — as part of his circumstances in life. It is to ask for too much that somebody would have a preference for alterna- tives they cannot see included within their avail- able options. This applies above all when we attempt to evaluate the preferences of people in vulnerable positions. Consider, for example, the case of a boy in Northeastern Brazil who, because he must work, cannot attend school. In his individual scale of utility, and in that of his parents, it is quite possible that “increasing income” ranks more highly than “attending school”. If we adopt a welfare-oriented standard to evaluate welfare, we would be induced to believe that it would be best to do whatever possible to increase the boy’s income. Instead, however, we might raise the question: “what changes in the circumstances of the boy’s life are necessary so that education will figure as an impor- tant value in his (and his parents’) scale of prefer- ences?” I cannot see how this question might be raised from the standpoint of the utilitarianism of preferences. The objection we are raising to the welfarist perspective is this: the satisfaction of individual preferences is not an adequate guide for public policy decisions because what people prefer is itself the result, by and large, of the goods, resourc- es and rights with which they already have been provided through public action. Cass Sustein (1991, p. 8) remarks that there is solid empirical evidence in economics and social psychology for what can be termed “the endowment effect”, that is, the existence of a causal link between individual attitudes regarding certain goods and rights and the supply of the same goods and rights. “The endow- ment effect is the consequence, for preferences and willingness to pay, of the initial allocation of an entitlement.” The relevance of the endowment effect to the evaluation of the form in which individual prefer- ences should count in policy decisions is great. We could point to countless examples that refer to distinct areas of state intervention. The concession of labor rights to domestic workers strongly influ- ences the perception they have of their own activity and of what their employers can demand of them; the extension of pensions to rural workers affects their preferences regarding the value of the pensions system; attitudes of slum-dwellers toward the environment are heavily influenced by the provision (or non-provision) of what, in their view, are the essential public goods, such as potable water, waste-removal and public sanitation; the perception by residents in peripheral districts of São Paulo of the importance of access to medical care can be affected by the supply of health services in those districts;8 and so on. Let us admit that it is correct to argue that the supply of certain goods, resources, rights, legal norms or opportunities broadly conditions the attitudes individuals have in relation to each of these things. In this case, it is simply false to state that the distribution of these same goods, resourc- es, rights, legal norms or opportunities can be justified by the satisfaction of individual preferenc- es. The equity of a particular distribution cannot be justified by the preferences that individuals are induced to cultivate for this same distribution. Once again, through the same mechanism we have already witnessed in the exercise of “expensive tastes”, the problem posed by the malleability of preferences pressures us to find a non-subjective basis for the assessment and comparison of levels of individual welfare. Before we tackle this, how- ever, there is a final point to be elucidated. IV The malleability of preferences raises objec- tions not only for subjective welfarism (which places a full emphasis on interpersonal variations of preference). A similar objection applies to rela- tivist conceptions of social welfare (which place full emphasis on the intercultural variation of moral standards). INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 101 I have argued above that we have considerable reasons to reject a principle that advises for the satis- faction of individual preferences without taking into account the fact that they are conditioned by socio- economic background and by the mode of state in- tervention (or its absence). Similarly, there are pow- erful reasons to reject conceptions that propose that a person’s welfare can only be evaluated according to the values and beliefs of the community to which he belongs, especially if: (1) these values and beliefs perpetuate one’s situation of inferiority and oppres- sion within this community; and (2) one’s life circum- stances hardly permit any option other than adher- ence to these values and, consequently, impart a positive value to one’s own oppression. Moreover, in this case, the fact that a person “prefers” the situa- tion in which he is already placed is not a good rea- son — and even less a just reason — for guiding our judgment about what he is entitled to on the basis of his “preference”. To illustrate this point, consider the following example. The dominance of certain moral tradi- tions and certain conceptions of family life leads to the existence in many a poor country not only of an unjust social distribution of resources but — above and beyond this — an unjust intra-family distribu- tion of resources. Among poor families, the distri- bution of food, medical attention, and educational opportunity generally benefits men and income- earning adults, firstly, as it privileges boys to the detriment of girls secondly (World Bank, 1990, p. 37). Suppose (quite plausibly) that the community beliefs and moral traditions that legitimize this state of affairs are beyond dispute, to the point where women themselves see no injustice in it. With this scenario in mind, how could policy decisions base themselves in the assessment these women make of their own situation? Would we be willing to assert, for example, that to provide them with educational opportunities is not a pressing objec- tive (or not as pressing as it is for men) because their own way of life fails to valorize women’s education? This is a clear example, in my view, of how the adoption of individual attitudes — condi- tioned, in this case, by adherence to local custom — as the ultimate criterion for judgments of social welfare can lead to absurd distortions. Let me add, in passing, that this kind of error in judgment, which easily could be committed by relativists, does not occur in the 1990 World Devel- opment Report. The report recommends that, in poor countries, the state invest directly in the improvement of quality of life for poor women (who are among the greatest victims of relativist conceptions of social justice). This recommenda- tion is consistent with the considerations pertain- ing to social justice that I mentioned in the preced- ing paragraph. It is grounded, moreover, in a fact of the utmost importance. Comparing the way in which poor men and women spend their income, it is observable that a greater portion of women’s income is expended on the family’s welfare. The report’s conclusion is clear: to increase women’s income directly not only enhances their bargaining power within the family but also provides a sound means for benefiting their children (World Bank, 1990, p. 37).9 There is something emphatically wrong with conceptions of social justice that weaken the posi- tion of those who are most vulnerable. This, in short, is the principal objection that should be raised before utilitarianism of preferences and relativist conceptions of social welfare. “Any rela- tivism”, as Onora O’Neill (1993, p. 304) puts it, “tends to prejudicate the position of the weak, whose weakness is mirrored and partly constituted by their marginalization in received ways of thought and by their subordination and oppression in established orders.” What indeed remains be- yond comprehension is the fascination which rela- tivism seems to exercise over certain varieties of left-wing political thought.10 V So far I have argued that the two subjective theoretical perspectives for the evaluation and comparison of welfare levels — hedonism and the utilitarianism of preferences — are inherently con- tradictory. When we ask ourselves (always from the standpoint of decision-making in public policy) which conscious states ought to be produced in individuals, or which individual preferences ought to be satisfied, we are compelled to use — even if 102 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 only implicitly — a non-subjective standard: that is, some standard by which we can judge the reason- ableness, in terms of the claims it poses on others, of the production of pleasurable states of con- sciousness and of the satisfaction of individual preferences. If we abandon the subjective standard, we enter into a field of conceptions of welfare that are affiliated to what Derek Parfit has called “objective list theory”. According to this view, there are certain things that are good or bad for human life, aside from people’s desire to pursue the good and to avoid the bad. “The good things might include moral goodness, rational activity, the development of one’s abilities, having children and being a good parent, knowledge and awareness of true beauty. The bad things might include being betrayed, manipulated, slandered, deceived, being deprived of liberty or dignity, and enjoying either sadistic pleasure, or aesthetic pleasure in what is in fact ugly.” (Parfit, 1984). What we are considering, then, is a theory of individual welfare rather than one — just yet — of morality. Nothing has been said, so far, about the duties these ingredients for a good life impose on others. (To be a good father or a good mother, for instance, however great their importance in indi- vidual welfare, is not a good with which others can provide us.11) Wouldn’t such a theory — and this is the objection to consider from the outset — itself be based in an unabashed value judgment as to what comprises a good life? It is true that utilitarianism of preferences embraces the assumption that value judgments — if this perspective is adopted — are to be avoided whenever possible. For Harsanyi, the identification and comparison of the intensity of human prefer- ences are judgments of fact.12 However, to adopt objective list theory does not mean that we must henceforth surrender to a value judgment. In this regard, it is pertinent to recall Amartya Sen’s remark to Mollie Orshansky that “poverty, like beauty, lies in the eye of the beholder”. What Orshansky means is that our evaluation of poverty as something bad (and that certainly occupies a prominent place in the list of bad things mentioned above) itself consti- tutes a value judgment. But on this point there is some confusion surrounding two types of judg- ment. A direct and prescriptive judgment — “this is bad” — is one thing. But a judgment along the lines of “according to broadly held normative standards, this is bad” is quite a different thing indeed. Al- though our values always interfere, one way or another, with the manner in which we evaluate the facts, we should bear in mind that “to describe a prevailing prescription is an act of description, not prescription” (Sen, 1981, p. 17). If subjective wel- farism claims to be grounded in facts “as they are” (see, however, note 12), objective list theory seeks its support through facts about values. It is no sinful excess of objectivity to maintain that certain things are valuable and others harmful to a variety of individual conceptions of the good (though not all of them) and to human life in a variety of cultural contexts (though not all of them). Assumptions of this sort are present in all conceptions of welfare belonging to the family of the objective list theory. Among its most prominent members are: Rawls’ notion that individual welfare is to be assessed by reference to an index of “primary goods”;13 Sen’s proposition that the focus be directed toward “a set of human functionings and capabilities”; and Doyal and Gough’s concep- tion (and others similar to it), which proposes to evaluate welfare in connection with certain basic human needs.14 All of these conceptions are non- subjective and anti-relativist; and all of them can be understood as interpretations of the conception of human welfare that lies at the foundation of the Universal Declaration of Human Rights. And so how are we to compare conflicting individual interests from the standpoint of objective list theory? When we raise this question, our con- ception of individual welfare becomes the keystone of a moral theory (a theory of distributive equality). The fundamental point to be stressed is this: unlike what subjective welfarism proposes, we do not judge the legitimacy of the claims which these interests pose regarding scarce social resources according to the force with which their parties defend it, nor by the intensity with which they are preferred, nor even by the degree of satisfaction that the fulfillment of these claims might bring about. Our task is to inquire into the reasons for INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 103 which something is preferred (Scanlon, 1975, 1991 and 1993). If we wish to escape the dead-end into which subjective standards lead us, there is no way to avoid judgments regarding the content of prefer- ences in interpersonal comparisons. That someone (or some group) prefers something is not a good reason, in and of itself, for this interest to weigh in public policy decisions. We must still establish a judgment of the moral importance of the interest in question. And we do so by recourse to our concep- tion of individual welfare (“ours” in the sense of those who accept objective list theory). An interest will entail greater moral weight on the basis of its greater relationship to one or several goods that are perceived, by people with distinct values, as ingre- dients indispensable to a good human life. Accord- ing to this view, it is not merely by being the object of preference that a thing is good or valuable. Because it constitutes a good, we have a reason — intersubjective in nature — to prefer it. Note that to judge the moral importance of individual interests in interpersonal comparisons does not involve judgment of the intrinsic value of these interests, nor determining the point at which the interested parties are able correctly to evaluate what is best for them. Judgments of the moral urgency of an individual preference or interest are perfectly compatible with the benthamite formula that “the individual is the best judge of his own good”. If a person feels deeply unhappy for not being able to enjoy rare and sophisticated food and drink, we would not say that he or she has a preference for “inferior” pleasures. Nor would we assert that such a preference reveals that he does not know what is best for him. The only thing we do judge are the claims that the satisfaction of this preference makes on scarce social resources. When we inquire, for the purposes of interpersonal com- parison, into the reasons why something is intense- ly desired, we are to bear in mind solely the social opportunity costs of satisfying this desire — a cost which is to be evaluated by reference to the desires, intense or otherwise, that will be frustrated. (I will return to this point in the following section.) Leaving aside purely strategic consider- ations,15 objective list theory provides for a more plausible explanation of the basis of comparisons of individual interest that we frequently conduct. Nor- mally we consider that preserving freedom of ex- pression is a more important good than satisfying the preferences (however intense they may be) of people who hate to see nudity or sex on television; that guaranteeing everyone sufficient opportunity to develop one’s basic capabilities is more pressing than satisfying the preferences of some for especial- ly costly forms of education or training; and that it is more important to assure proper nutrition for the hungry than it is to guarantee others the means to satisfy a given preference derived from religious belief (such as the construction of a temple). In all of these cases, we are implicitly resorting to a non- subjective standard for evaluating individual inter- ests, according to which some of these interests will be seen as private preferences (i.e., that they do not pose claims before society) while others will be recognized as rights (i.e., as aspects of individual welfare that impose responsibilities on others). VI Suppose we agree on the existence of a non- subjective moral foundation, such as that proposed by objective list theory, for comparisons of inter- personal welfare. One question remains to be answered. Is it possible, by resorting to this foun- dation, to envision another way of addressing the problem that the utilitarianism of preferences sets out to resolve: namely, the problem of neutrality (as it was characterized in section II)? Would it be unacceptably paternalistic to propose that the eval- uation of a person’s standard of living be conduct- ed not according to his own subjective assessment of his situation but rather by the access assured to him to certain goods, resources and opportunities — especially including, among others, the social rights recognized in the UN charter — that we believe to be ingredients of a good life. Might we thus be issuing a value judgment — that “what So- and-so wants is not in his best interest” — about individual preferences and attitudes? What role do we assign, after all, to individual responsibility in a person’s life? I shall sketch out the general line of argument adopted by all conceptions of individual welfare, 104 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 to my knowledge, that accept objective list theory. For this purpose, I will start with an inconsistency that G.A. Cohen purports to have detected in Rawls’ political philosophy. According to Cohen (1993, pp. 13-14), the problem confronting egali- tarian and left thought, generally speaking, “is that the picture of the individual as responsibly guiding his own taste formation is hard to reconcile with claims Rawls uses elsewhere in a fundamental way to support his egalitarianism.” Let us better clarify the two things that seem irreconcilable. On the one hand are the assump- tions necessary for justifying egalitarianism. Rawls (and left thought, broadly speaking) rejects the notion that the unequal distribution of resources and opportunities can be justified on the basis of individual merit. The argument is that personal merit — an attribute inseparable from highly per- sonal preferences, tastes and attitudes16 — is in- tensely conditioned by certain circumstances in an individual’s life that lie beyond the realm of choice. One cannot choose the country, region or commu- nity where one is born and raised, any more than one’s starting-position in society, family, or genetic baggage. And so to attribute a person’s unfavor- able situation to his own preference (to see this as his own shortcoming), when a more careful exam- ination of the situation would recommend attribut- ing it largely to circumstances outside one’s choice, amounts to a familiar and unacceptable instance of victim blaming. This position is a variation on the argument regarding the malleability of preferences that I used earlier to criticize subjective welfarism. On the other hand, there is the assumption that the individual should be responsible for culti- vating his own tastes, preferences and ends. Rawls resorts to this assumption to explain why our conception of distributive equality17 need not preoccupy itself with the satisfaction of expensive tastes. It is worth recalling Rawls’ passage on this point: [...] as moral persons citizens have some part in forming and cultivating their final ends and prefer- ences. It is not by itself an objection to the use of primary goods that it does not accommodate those with expensive tastes. One must argue in addition that it is unreasonable, if not unjust, to hold such persons responsible for their preferences and to require them to make out as best they can. But to argue this seems to presuppose that citizens’ preferences are beyond their control as propensi- ties or cravings which simply happen. Citizens seem to be regarded as passive carriers of desires. The use of primary goods, however, relies on a capacity to assume responsibility for our ends. (Rawls, 1982, pp. 168-169). For Cohen, these two components of Rawls’ theory fail to mesh. Individual preferences are seen in one manner when the task at hand is to disqualify merit as an egalitarian distributive principle for the basic structure of society; they are seen in a different light when the issue is to justify the non-satisfaction of expensive tastes. Egalitarianism thus appears to run into the unpleasant failure to reconcile the assumptions underlying principles of distributive equality with those that underlie principles of indi- vidual autonomy. Indeed, one can assume that the justification for egalitarian policies would always depend on judgments that oftentimes are not easily formed regarding the degree of autonomy/heteron- omy — or of individual responsibility/non-respon- sibility — in the formation of individual preferenc- es. The greater the heteronomy of the individual’s preferences that contribute to maintaining him in an unfavorable position,18 the more authoritatively can egalitarian policies afford to ignore them. The greater their autonomy, the less can public policy decisions afford to fail to take them into account. Why is this problem relevant to the question of neutrality? If our conception of distributive equal- ity depends on judgments of the degree of autono- my of individual preference, we must then exercise value judgments about these preferences. Prefer- ences generated in autonomous circumstances are “good” (from the standpoint of decisions on public policy), while those generated under non-autono- mous circumstances are “bad”. And to establish distinctions on the intrinsic value of individual interests and attitudes is precisely what the ideal of neutrality rejects. There is, nevertheless, a serious misunder- standing in Cohen’s objection to Rawls. We have INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 105 seen that one of the reasons for rejecting subjective welfarism derives from the problem of the mallea- bility — or the heteronomy — of preference. This is an objection that is raised to a theory that proposes that our judgments of social justice should be governed by the degree of satisfaction (realized or yet to be realized) of individual preferences. How- ever, along the same lines that I argued in the preceding section on the inquiry into the reasons why something is desired, interpersonal compari- sons of welfare grounded in the roster of primary goods set forth by Rawls, or in other conceptions that adopt objective list theory, do not require any sort of judgment pertaining to the degree of autono- my/heteronomy of individual interests, ambitions or ends. This is not to say that individuals can only be compensated for their preferences, especially preferences that leave them in a disadvantageous position, in cases where it can be demonstrated that these preferences are due to factors or attributes outside the realm of individual choice. No judgment whatsoever is being emitted about what people deserve. What we are asserting is that the basic distribution of resources and opportunities in soci- ety should be independent of preference, whether the latter is constituted in heteronomous or autono- mous form. Neither judgments about the degree of injus- tice in the societies in which we live, nor judgments about the social well-being that could be constitut- ed if we lived in a just society require a basis in evaluations of the degree of autonomy of their attendant individual preferences and conceptions of what is good. The object of justice, as Rawls remarked, is the basic structure of society and not the constitution of moral adjudications of particular cases.19 What we assume is that there are goods, resources and opportunities that persons, however greatly they may diverge in their individually held attitudes and values, have reason to desire. The next assumption — adopted by all conceptions of welfare related to objective list theory — is that society’s basic institutions should be organized and should function in such a manner as to assure that an equitable portion of these goods and opportu- nities be assured to each person. Whatever each individual makes of the opportunities thus offered to them — the preferences he will seek to cultivate, the goals he will seek to achieve — is no longer, as a rule, any of society’s business.20 Assume that an equal measure of resources and opportunities was afforded to persons A and B. Although A is dissatisfied with his situation be- cause certain preferences have been frustrated, and B looks upon his situation positively, we would still be compelled to assert that, in spite of their divergent subjective views, A and B enjoy equal levels of welfare. Or yet, under the same conditions of distributive equality, that A invests all his effort in a costly career that promises financial reward or public prestige, while B prefers a life less driven by professional realization and more dedi- cated to family and friends. From a public stand- point, there is no reason to judge that A’s choices and preferences are more valuable than B’s. Ac- cording to Rawls, in the passage we quoted above, given an equitable distribution of primary goods or — as Sen would have it — given institutional conditions that promote equally the development of each individual’s capabilities, we may assume that individuals are capable of taking responsibility for their own objectives. The conclusion at which we have arrived hardly supports the contradiction pointed out by Cohen (namely, that between the assumptions necessary to justify distributive equality and the assumptions of individual autonomy). It is solely the assurance of distributive equality in the basic structure of society that enables us to avoid judg- ments of the intrinsic value of individual preferenc- es and choices. This is the stock answer that non- subjective conceptions of individual welfare can offer to problems arising from neutrality or pater- nalism in interpersonal comparisons of welfare — problems for which the utilitarianism of preferenc- es, at first sight, would appear to offer the most plausible solution. Despite the fact that this formu- lation entails a high degree of abstraction, this response carries implications that are quite definite in nature. If we wish to avoid paternalistic stances in judgments of social justice, we had better not focus directly on individual preferences, attitudes and interests, and direct our attention instead to institutional conditions for the allocation of re- 106 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 sources and opportunities of value to a variety of individual conceptions of what is good. In my view, this would be the best philosophical ap- proach to the social and economic rights contained in the Universal Declaration and in other UN documents. VII One last point remains to be discussed. Up to this point I have sought to elucidate what people are entitled to under the auspices of a non-subjec- tive standard for assessing welfare. However, the concept of neutrality and anti-paternalism assumed by this kind of standard can also be laid forth through the perspective of the responsibilities posed by the rights to social welfare. Consider two opposite, if not extreme, points of view on the correlation between rights and responsibilities. At one extreme we find the “libertarian” view, accord- ing to which we are under no obligation, either in our individual conduct or in the collective deci- sions in which we participate, to recognize any negative responsibility for the unfavorable circum- stances of other people’s lives.21 From this stand- point, we are not responsible for the damages or privations that others might suffer because we have declined to do what was within our grasp to avoid the damages or to diminish the suffering. If we ourselves do not directly cause other people’s privations — if we are not positively responsible for them — we can then ignore them and nothing can justify society’s interference in our preferences and choices. At the other extreme, there is the view that there are no limits to the negative responsibil- ity that consideration for the life and the welfare of others might pose to us. We are responsible for any privations others might suffer (on an ever broader, planetary scale) whether we have caused them directly or not, if ever we failed to do what we could to diminish it. According to the latter view, there is no interference in personal conduct, prac- tically speaking, that cannot be justified on the grounds of an impartial compassion that we owe to other people’s lives and welfare. The conception of neutrality and anti-pater- nalism that I have set forth above combines a part of each of these views so as to give rise to a third. It shares the libertarian preoccupation with setting limits to the claims that others establish before personal preferences and choices. I suppose, nev- ertheless, that many among us do not consider it good to live in a world where even the satisfaction of one of our more mundane preferences — to eat a decent meal in a moderately expensive restaurant in São Paulo — raises the issue of immorality, for our consumption of resources at one place and in one evening that would otherwise be sufficient to sustain an entire family of starving slum dwellers for a whole month. We are thus compelled to weigh the considerations that provide ballast for the second point of view. In our personal lives, we would like to do whatever we want, without this being judged (by others or by ourselves) as a show of indifference toward others. The only possible solution consists of transferring the burden of negative responsibil- ity, of which we would rather be free in our personal life, to society’s basic institutions. This is the third way between the two aforementioned extremes. Thomas Pogge (1995) refers to it as the “institutional focus” for the correlation between rights and responsibilities. Collective recognition of negative responsibility is the precondition for ignoring it in personal conduct. Collectively, we are responsible for what could be done to avoid the damage and privation that many of us must endure. This establishes the responsibility for sup- porting institutions whose goal is to assure equal levels for everyone’s welfare, assessed according to the non-subjective standard proposed above. Where such institutions do not exist, our foremost duty is to create them, according to the institutional focus. The point about collective neg- ative responsibility is that the status quo ceases to be seen as a benchmark to judge the legitimacy of collective decisions and public policy. The critical trick about libertarian morality consists of assum- ing as given the distribution of social benefits and entitlements, and to place under suspicious gaze only those injustices for which the state might be held accountable (the indiscriminate massacre of “suspects” by the police in Brazil’s major cities, for instance). The institutional focus on the correlation INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 107 between rights and responsibilities, meanwhile, proposes that we are collectively responsible for what the public authorities do in our name and what the common institutions under which we live are not capable of preventing (that many should suffer endemic malnutrition, or that the route to the development of their individual potential should remain blocked, for example). It is not hard to see that the establishment of collective responsibility for what has not been done is essential to the admission of economic and social rights — and not solely of civil and political rights — as genuine human rights. Once negative collective responsibility is suf- ficiently recognized by the institutions under which we live, so the argument goes, we can then reclaim the right to live our personal lives accord- ing to the libertarian ethos of non-interference. And so we must strive to realize our preferences and choices without allowing that whosoever should question their intrinsic value. Thomas Na- gel (1991, p. 84) expresses it thus: “an acceptable moral framework for apportioning negative inter- personal responsibilities is a condition of the moral acceptability of strict limitations on negative re- sponsibility in the rules of individual conduct that govern personal relations within it.” The line of reasoning above reaffirms the conclusion of the preceding section. We set out from the idea that our judgments of social justice should embody an anti-paternalist concern. Earli- er, we saw that the best way to satisfy this preoccu- pation was not to focus directly on the satisfaction of individual preference (which is what subjective welfarism proposes). And now we have seen that it is not resolved by encapsulating individuals within their own preferences and choices, denying them the existence of responsibilities of other people’s welfare (which is what libertarianism proposes). In the face of these two perspectives, I have argued that there is a non-subjective basis for interpersonal comparisons of welfare and that the institutional recognition of this groundwork af- fords a more appropriate interpretation for our concerns about neutrality and our intent to reject paternalism. To state matters more forcefully: it is quite possible that a more equal distribution not only of those resources and opportunities that are of value to different individual planes of being, to different ways of existence, but also of their corre- sponding negative interpersonal responsibilities, might be the only way of really taking the rejection of paternalism seriously. NOTES 1 See, for example, Elster (1983, pp. 33-42) for a discus- sion of these issues. 2 The question as to which democratic institutional devic- es are most likely to generate just results is, of course, of the utmost importance. In this connection, for example, see Van Parijs (1995). 3 This viewpoint is known, in the literature, as “subjective welfarism”. 4 Harsanyi’s principle generally rejects all “perfectionist” moral theories, i.e., those that posit that individual welfare should not be evaluated according to the satis- faction of agents’ effective preferences but rather on the basis of the satisfaction of those preferences conducive to the ideal of a better human life. 5 In the language of welfare economics, the rule of the majority is a decision-making procedure that allows for “ordinal” but not “cardinal” comparisons of utility. In the first case, it is only possible to state that alternative a is preferred over b, which in turn is preferred over c, and so on. In the second case, the order will take into account how strongly each of the alternatives is preferred. The ordering of preferences thus would take on the following form: alternative a, yielding 40 units of utility, is preferred over b, which yields 35 units of utility, which is preferred over c, with 5 units of utility, and so on. 6 Along these lines, Dworkin (1984) famously proposed to define individual rights as “trumps” which individuals can play against discriminatory utilitarian calculations; moreover, it is worth recalling Samuel Freeman’s (1994) defense — relevant not only for the US context — of the institution of judicial review 7 This is one of the main objections Rawls raises against utilitarianism of preferences. 8 This particular example is empirically supported by research on popular health movements carried out by Cedec (and coordinated by Amelia Cohn) in the 1980s among residents of the eastern and southern districts of São Paulo. In spite of the greater lack of health care facilities in the southern district, it was the residents of the eastern district who developed a more acute percep- tion of health care as priority problem and who demon- strated greater willingness to participate in collective actions aimed at redressing healthcare rights, precisely because there was greater public investment in health services in that area (Cedec, 1989). 108 BRAZILIAN REVIEW OF SOCIAL SCIENCES - SPECIAL ISSUE No. 1 9 The example discussed in the two preceding paragraphs is especially pertinent to a widening debate in Brazil on poverty-reduction policy. In this connection, there seems to be a growing perception, in comparison to policies more intensely subject to clientelistic intermedi- ation (such as the distribution of food and the creation of subsidized employment) of the advantages of cash benefits. However, the considerations regarding intra- familiar distribution, which I have discussed above and which are applicable to the Brazilian case, would lead us to prefer individual benefits (such as the negative income tax proposed by senator Eduardo Suplicy) to family benefits. Individual benefits are the most direct and certain means of increasing poor women’s income. 10 It would be worth examining, for instance, the contor- tions Michael Walzer (1983) must perform in order to reconcile the relativist approach with the particular aims of the social critique he is intent on pursuing. 11 Others, nevertheless, may provide us sufficient opportu- nities, that we may become a good parent. 12 Donald Davidson emphatically challenges this assump- tion. For him, the attribution of interests and preferences to others already involves an appeal to a common, shared ground: “[...] the propositions I must use to interpret the attitudes of another are defined by the roles they play in my thought and feelings and behavior; therefore in interpretation they must play appropriately similar roles. It is a consequence of this fact that correct interpretation makes interpreter and interpreted share many strategically important beliefs and values.” (Davidson, 1986, p. 209). 13 Such as income and wealth, and opportunities in educa- tion, occupation, enjoyment of leisure and self-respect. 14 Rawls, 1971, pp. 90-95 and ch. 7, and 1982; Sen, 1985, 1993a and 1993b; Doyal and Gough, 1994. 15 The theory of justice does not take into account strategic considerations. Situations propitious to just delibera- tion, such as Rawls’ original position, are conceived precisely to neutralize inequalities in power. They are not to interfere with the formulation of principles. It is a separate issue to know how the application of a princi- ple of justice will affect these inequalities. This is valid as well, of course, for the utilitarianism of preferences, which would view as morally incorrect, for example, the decision to satisfy a weak preference of a small, power- ful group to the detriment of a strong preference held by a more numerous group of people lacking in the resources of power. 16 For example: individual attitudes concerning work vs. non-work; immediate consumption vs. savings; the willingness to accept risks. 17 “Ours” in the sense of those accepting objective list theory. Rawls’ conception, which proposes the distribu- tion of a set of primary goods according to the “principle of difference”, is itself but one among several members of larger family. 18 Consider the case of a poor person who prefers the realization of transport policies that mainly benefit the non-poor over policies for expansion and improvement of public services in education, health and mass transit that would benefit the underprivileged. 19 The constitution of judgments concerning particular cases — i.e., what a particular individual is entitled to or liable for — is an object of legal justice. 20 “As a rule”, because there are those cases of justifiable paternalist interference in individual choice, such as the subjection to appropriate treatment of an individual undergoing a psychotic episode, even though this ac- tion may be contrary, at the time, to their volition. But even this involves the judgment of particular cases. 21 For the notion of negative responsibility, see Nagel (1991, pp. 83-84). The finest philosophical articulation of the libertarian perspective continues to be that of Nozick (1974). REFERENCES ARROW, Kenneth. (1973), “Some Ordinalist-Utilitari- an Notes on Rawls’ Theory of Justice”. Journal of Philosophy, 70, 9: 245-263. CEDEC. (1989), Informações Cedec, 1. COHEN, Gerald. (1993), “Equality of What? On Wel- fare, Goods and Capabilities”, in Amartya Sen and Martha Nussbaum (eds.), The Quality of Life, Oxford, Clarendon Press. DAVIDSON, Donald. (1986), “Judging Interpersonal Interests”, in Jon Elster and Aanund Hylland, Foundations of Social Choice Theory, Cam- bridge, Cambridge University Press. DOYAL, Len and GOUGH, Ian. (1994), “O Direito à Satisfação das Necessidades”. Lua Nova, 33. DWORKIN, Ronald. (1981), “What Is Equality?” (Part 1: “Equality of Welfare”). Philosophy and Pub- lic Affairs, 10, 3. __________. (1984), “Rights as Trumps”, in Jeremy Waldron (ed.), Theory of Rights, Oxford, Ox- ford University Press. ELSTER, Jon. (1983), Sour Grapes. Cambridge, Cam- bridge University Press. FREEMAN, Samuel. (1994), “Democracia e Controle Jurídico da Constitucionalidade”. Lua Nova, 32. HARSANYI, John. (1982), “Morality and the Theory of Rational Behaviour”, in A. Sen and Bernard Williams (eds.), Utilitarianism and Beyond, Cambridge, Cambridge University Press. INDIVIDUAL PREFERENCES AND SOCIAL JUSTICE 109 MILL, John Stuart. (1961), “Utilitarianism”, in Marshall Cohen (ed.), The Philosophy of John Stuart Mill, New York, The Modern Library. NAGEL, Thomas. (1991), Equality and Partiality. Ox- ford, Oxford University Press. NOZICK, Robert. (1974), Anarchy, State and Utopia. New York, Basic Books. O’NEILL, Onora. (1993), “Justice, Gender, and Inter- national Boundaries”, in A. Sen and M. Nuss- baum (eds.), The Quality of Life, Oxford, Clar- endon Press. PARFIT, Derek. (1984), Reasons and Persons. Oxford, Clarendon Press. POGGE, Thomas. (1994), How Should Human Rights Be Conceived? Manuscript. RAWLS, John. (1971), A Theory of Justice. Cambridge, Harvard University Press. __________. (1982), “Social Unity and Primary Goods”, in A. Sen and B. Williams, Utilitarian- ism and Beyond, Cambridge, Cambridge Uni- versity Press. SCANLON, Thomas. (1975), “Preferences and Ur- gence”. Journal of Philosophy, 72: 655-669. __________. (1991), “The Moral Basis of Interpersonal Comparisons”, in Jon Elster and John Roemer (eds.), Interpersonal Comparisons of Well-Be- ing, Cambridge, Cambridge University Press. __________. (1993), “Value, Desire and Quality of life”, in A. Sen and M. Nussbaum (eds.), The Quality of Life, Oxford, Clarendon Press. SEN, Amartya. (1981), Poverty and Amine. Oxford, Clarendon Press. __________. (1985), “Well-Being, Agency, and Free- dom”. The Journal of Philosophy, 82. __________. (1993a), “O Desenvolvimento como Ex- pansão de Capacidades”. Lua Nova, 28-29. __________. (1993b), “Capability and Well-Being”, in A. Sen and M. Nussbaum (eds.), The Quality of Life, Oxford, Clarendon Press. SEN, Amartya and NUSSBAUM, Martha (eds.). (1993), The Quality of Life. Oxford, Clarendon Press. SEN, Amartya and WILLIAMS, Bernard (eds.). (1982), Utilitarianism and Beyond. Cambridge, Cam- bridge University Press. SUSTEIN, Cass. (1991), “Preferences and Politics”. Philosophy and Public Affairs, 20, 1: 3-34. VAN PARIJS. (1995), “A Democracia e a Justiça São Incompatíveis?”. Revista de Estudos Avança- dos, USP, 23. VITA, Álvaro de. (1993), Justiça Liberal. Argumentos Liberais contra o Neoliberalismo. São Paulo, Paz e Terra. WALZER, Michael. (1983), Spheres of Justice. Oxford, Blackwell. WORLD BANK. (1990), World Development Report. 
work_on4jiu3ltnh35j2hmpxuzu4cv4	----	Microsoft Word - 2-2011-Law.DOC СТАНОВЛЕНИЕ ЮВЕНАЛЬНОЙ ЮСТИЦИИ В РОССИИ В.М. Кузьмина Кафедра конституционного и муниципального права Российский университет дружбы народов ул. Миклухо-Маклая, 6, Москва, Россия, 117198 В статье исследуется процесс становления и развития ювенальной юстиции в России. В частности, проводится сравнительный анализ актуальных для Российской Федерации аспектов ювенальной юстиции. Проводится сравнительный анализ англосаксонской и континентальной моделей ювенальной юстиции. Отмечается своеобразие российской модели суда по делам о несовершеннолетних и особенности его организации на этапе зарождения данного института. Ключевые слова: ювенальная юстиция, ювенальные суды, судебная реформа, права ребенка, правосудие по делам несовершеннолетних. Вопрос о необходимости введения института ювенальной юстиции в Рос- сии был поставлен в Концепции судебной реформы 1991 г., которая была одоб- рена Постановлением Верховного Совета РСФСР [8]. В Уголовном кодексе РФ один из разделов посвящен особенностям уголовной ответственности несовер- шеннолетних (раздел V) [11]. В соответствии с УПК РФ задачей уголовного су- допроизводства является защита прав личности, чему придается первостепен- ное значение. УПК РФ изменил назначение уголовного судопроизводства во- обще и производства по делам о преступлениях несовершеннолетних в частно- сти. Так, например, глава 50 УПК РФ [13], как и, соответственно, глава 32 УПК РСФСР [12] содержат правила об особенностях производства по делам о пре- ступлениях несовершеннолетних. В дальнейшем законодатель развил и допол- нил главу 50 УПК РФ рядом новых положений [1. С. 190]. В настоящее время в Российской Федерации концепция государства в сфе- ре правосудия по делам несовершеннолетних находится в стадии формирова- ния. С одной стороны, это обусловлено требованиями российского уголовного законодательства, «карательными» установками так называемых силовых ве- домств (органов внутренних дел, исполнения наказаний, прокуратуры), а с дру- гой — международным гуманитарным законодательством о защите прав детей [4. С. 5–6]. Создание устойчивой системы мер, предупреждающей возникнове- ние «трудной жизненной ситуации» и социально опасного положения детей, а также создание системы гарантированной помощи несовершеннолетним, ока- завшимся в таком положении, весьма актуально. Ювенальная юстиция представляет собой сложный комплекс социальных институтов и включает в себя как учреждения системы правосудия, так и соци- альные службы, «осуществляющие мероприятия по социальному обслужива- Вестник РУДН, серия Юридические науки, 2011, № 2 58 нию детей (социальной поддержке, оказанию социально-бытовых, медико- социальных, психолого-педагогических, правовых услуг и материальной помо- щи, организации обеспечения отдыха и оздоровления, социальной реабилита- ции детей, находящихся в трудной жизненной ситуации, обеспечению занято- сти таких детей по достижении ими трудоспособного возраста)» (ст. 1) [15]. Международные принципы правосудия в отношении несовершеннолетних и тенденции развития ювенальной юстиции во многих странах мира оказывают зна- чительное влияние на формирование ювенальной юстиции в России. В США, где впервые были введены суды по делам несовершеннолетних, обсуждается возмож- ность их ликвидации, а в России, напротив, рассматривается вопрос об учреждении таких судов, и прежде всего потому, что это обусловлено обязательствами по ис- полнению норм международного права, содержащихся в Конвенции ООН о правах ребенка; Всемирной декларации об обеспечении выживания, защиты и развития детей в 90-е гг.; Минимальных стандартных правилах ООН, касающихся отправ- ления правосудия в отношении несовершеннолетних, или, по-другому, — Пекин- ских правилах, и ряде других международных актов [6. С. 176]. В соответствии с ч. 4 ст. 15 Конституции РФ 1993 г. во исполнение междуна- родных стандартов в отношении несовершеннолетних в Российской Федерации были приняты, в частности, Федеральный закон «Об основных гарантиях прав ре- бенка в Российской Федерации» [15], Федеральный закон «Об основах системы профилактики безнадзорности и правонарушений несовершеннолетних» [14], а также Постановление Пленума Верховного Суда РФ «О судебной практике по де- лам о преступлениях несовершеннолетних» [9]. Этими актами введены понятия и принципы, которые до недавнего времени отсутствовали в российском законода- тельстве, но являются ключевыми для ювенальной юстиции: реабилитация ребен- ка, специализация правоприменительных процедур с участием ребенка, приоритет его личности и социального благополучия, необходимость следования принципам международного права при решении вопроса о наказании несовершеннолетних, совершивших правонарушения. Тем не менее, законодательство, непосредственно регламентирующее рассмотрение уголовных дел в отношении несовершеннолет- них, все еще далеко от совершенства. Вышеназванные акты в большинстве случаев остаются декларативными, механизмы их реализации несовершенны. Девиантное поведение несовершеннолетних определяется в первую очередь их образом жизни, их социальным окружением (неблагополучная семья или ее от- сутствие, бродяжничество, голод и др.). Предупреждение совершения дальнейших правонарушений несовершеннолетних зависит от их социального сопровождения после вынесения судебных решений, помощи в получении образования, трудоуст- ройстве, в решении бытовых проблем, особенно если такие подростки проживают и воспитываются в неблагополучных семьях или предоставлены сами себе. Таким образом, наиболее полная реализация задач ювенальной юстиции возможна лишь на государственном уровне при тесном взаимодействии всех ветвей власти — за- конодательной, исполнительной и судебной. Существенную помощь в процессе формирования ювенальной юстиции в России может оказать зарубежный опыт. Кузьмина В.М. Становление ювенальной юстиции в России 59 Такой опыт имеется у западных коллег и весьма успешно используется многими странами. Однако для его реализации потребуется соответствующая нормативно- правовая база, отвечающая прежде всего требованиям международных стандартов. Следует отметить, что только разумное соотношение действующего российского законодательства и норм международного права в контексте зарубежного опыта способно принести ожидаемые результаты. В контексте сказанного для Российской Федерации может оказаться весьма полезным опыт развития ювенальной юстиции в Италии. Первоначально в Ита- лии первые специализированные ювенальные суды (1934 г.) носили преимуще- ственно «карательный» характер. Период с 1956 г. с введением ряда законода- тельных актов, существенно реформировавших национальную социальную по- литику и инфраструктуру социальных учреждений, характеризуется как «гума- нистический», он отличается преобладанием административных мер воздейст- вия применительно к несовершеннолетним. Законодательные изменения конца 1960-х — середины 1970-х гг. закрепили преимущественное применение к не- совершеннолетним правонарушителям мер административного воздействия. Процессы децентрализации административных органов власти и новый закон 1977 г. открыли новый этап развития ювенальной юстиции, прежде всего соци- альных служб на местах, включив несовершеннолетних в одну из целевых групп новых учреждений. Произошло смещение акцентов в социальной поли- тике в отношении детей, совершающих правонарушения, и выведение реабили- тационной работы с данной группой из сферы судебных социальных служб в область социальной защиты и работы с семьей. В 1988 г. был принят новый уголовный кодекс Италии, закрепивший современную структуру институтов ювенальной юстиции, которая включает в себя ювенальные суды, прокуратуру, судебные социальные службы и пенитенциарные учреждения. Эти учреждения подведомственны Министерству юстиции и тесно сотрудничают с другими заин- тересованными группами и организациями, работающими в данной сфере, такими как полиция, муниципальные социальные службы, волонтерские службы. В Италии, как и в ряде других стран, ювенальный суд формируется и со- стоит из профессиональных судей и определенного числа ассистирующих им судебных заседателей. Судебные заседатели регулярно отбираются из числа экспертов, профессионально занятых в работе с детьми и подростками в таких сферах, как психология, криминология, социология, психиатрия и др. Обычно состав судебных заседателей меняется каждые три года. Ювенальные суды рассматривают дела гражданского, уголовного и адми- нистративного характера. Возраст минимальной уголовной ответственности в Италии составляет 14 лет. Уголовная ответственность распространяется на не- совершеннолетних в возрасте от 14 лет и только при условии признания их су- дом «полностью понимающими и осознающими свои поступки». Администра- тивная ответственность распространяется на так называемое «социально- дезадаптационное», допреступное поведение несовершеннолетнего в возрасте до 18 лет. В случае привлечения несовершеннолетнего к административной от- Вестник РУДН, серия Юридические науки, 2011, № 2 60 ветственности суд может постановить поместить подростка под контроль соци- альных реабилитационных служб или направить его в коррекционное учрежде- ние. Гражданские дела строятся в сфере защиты детей и подростков до 18 лет, находящихся без должного семейного надзора и попечения или получающих объективно неадекватную некомпетентную родительскую заботу. В таких слу- чаях суд решает изъять временно или постоянно ребенка из родительской семьи и направить его в приемную семью или интернатное учреждение. Уголовный кодекс РФ установил два возраста уголовной ответственности 14 и 16 лет. Преступления, за которые уголовная ответственность наступает с 14 лет, характеризуются повышенной общественной опасностью, доступной для ее осознания 14-летними подростками (ст. 20 УК РФ). Эти правовые и воз- растные границы учитываются и в уголовно-процессуальном законодательстве России. Вместе с тем в судебном процессе есть особые возрастные группы не- совершеннолетних, для которых предусмотрены свои правила защиты прав и законных интересов, равно как и реализация уголовного преследования. Минимальные стандартные правила отправления правосудия в отношении несовершеннолетних (Пекинские правила) [7] предусматривают, что досудеб- ным производством по делам о преступлениях несовершеннолетних должны заниматься служащие полиции, которые должны пройти специальный инструк- таж и подготовку [1. С. 190]. В крупных городах для обеспечения этого созда- ются специальные подразделения полиции. В России такую функцию выпол- няют отделы профилактики правонарушений несовершеннолетних и подразде- ления по делам несовершеннолетних органов МВД. Следует подчеркнуть, что дознаватели, следователи, адвокаты также должны иметь специальную подготовку в области педагогики и психологии. Эту задачу предстоит решить государству в ближайшее время. В соответствии с Пекинскими правилами судебное разбирательство должно проходить в атмосфере понимания, т.е. без соблюдения строгой процессуальной формы, применяемой в отношении взрослых правонарушителей, с учетом возрастных особенностей подростков, в за- крытом судебном заседании и отвечать их интересам (п. 14, 21). Для обеспечения этого Пекинские правила предусматривают создание специализированных судов. По мнению Г.Я. Борисевич, в настоящее время в России отсутствует законодатель- ство, в котором закреплялись бы эти правила и условия [1. С. 190]. Что касается правоприменительной практики, то дознаватель и следователь по уголовным делам, по которым привлекаются несовершеннолетние, зачастую не имеют ни сил, ни возможностей установить полную картину о личности подростка, его поведении как до, так и после совершения преступления, о том, надлежащим ли образом родители, опекуны или попечители осуществляли воспитание ребенка; явилось ли ненадлежащее воспитание или отсутствие контроля за поведением при- чиной совершения преступлений и др. Как правило, к делу приобщаются копия свидетельства о рождении, справка подразделения профилактики правонарушений несовершеннолетних органов внутренних дел о том, состоит или нет несовершен- нолетний на учете, производится формальный допрос одного из родителей. Пожа- Кузьмина В.М. Становление ювенальной юстиции в России 61 луй, единственный документ — заключение судебно-медицинской экспертизы — позволяет получить более или менее объективный психологический портрет пра- вонарушителя. На основании этих минимальных сведений судья, рассматривая де- ло в отношении несовершеннолетнего, также не имеет возможности всесторонне вникнуть в проблемы подростка, изучить причины и условия совершения им пре- ступления, выносит обвинительный приговор с условным наказанием либо поста- новление о применении принудительных мер воспитательного характера. Воспри- нимая это как безнаказанность, несовершеннолетний в скором времени опять со- вершает преступление. Отсюда — достаточно высокие показатели числа повторно осужденных несовершеннолетних [1. С. 190]. Сложившееся положение усугубляется тем обстоятельством, что суды, спе- циализирующиеся на рассмотрении дел в отношении несовершеннолетних, не ос- вобождаются от рассмотрения других дел. Между тем Пленум Верховного Суда РФ в Постановлении «О судебной практике по делам о преступлениях несовер- шеннолетних» от 14 февраля 2000 г. № 7 рекомендовал в судах общей юрисдикции ввести специализацию судей по рассмотрению дел с участием несовершеннолет- них и указал на необходимость подготовки судей по делам несовершеннолетних не только по вопросам права, но и психологии, педагогики, социологии [9]. Ювенальная юстиция должна позволять осуществлять индивидуальный подход к несовершеннолетнему правонарушителю как в процессе судопроиз- водства, так и в процессе реализации решений суда, в том числе и в процессе исполнения наказания. Цель такого вмешательства состоит в предотвращении совершения несовершеннолетним повторного правонарушения и в оказании помощи в процессе его реабилитации и социальной адаптации. Риск совершения повторного преступления определяется в процессе так называемого кейс-менеджмента, который представляет собой «динамичный, хорошо скоординированный, целенаправленный и гибкий оценочный подход. Он включает весь комплекс услуг, имеющихся в окружении несовершеннолет- него, которые могут быть направлены на удовлетворение его потребностей в реабилитации и реинтеграции. Кейс-менеджмент является руководством для вмешательства, призванного уменьшить риск повторных правонарушений и обеспечить качественную заботу о подростке путем последовательного плани- рования, осуществления и прекращения предоставления услуг в рамках приго- вора суда по делам несовершеннолетних» [16]. В качестве основного инструмента для проведения кейс-менеджмента вы- ступает метод структурированной оценки риска совершения повторных право- нарушений несовершеннолетними «Оценка риска и потребностей» (ОРП), ко- торый позволяет оценить те характеристики несовершеннолетнего, которые не- посредственно связаны с вероятностью совершения им повторных правонару- шений. Оценка риска и потребностей основывается на трех принципах: – принцип риска устанавливает прямопропорциональную зависимость ме- жду величиной риска совершения повторного правонарушения и интенсивно- стью надзора; Вестник РУДН, серия Юридические науки, 2011, № 2 62 – принцип потребностей определяет соответствие оказываемых услуг кри- миногенным потребностям правонарушителя. Под ними понимаются потребно- сти несовершеннолетнего, удовлетворение которых криминальным путем по- служило причиной правонарушения. Изменение этого типа потребностей или формирование у подростка установки на их социально приемлемую реализацию является целью реабилитации подростка; – принцип реактивности подразумевает соответствие видов помощи инди- видуальным склонностям, возможностям и жизненным обстоятельствам право- нарушителя [16]. Использование ОРП позволяет не только определить степень риска совер- шения несовершеннолетним повторных правонарушений, но и выделить те по- требности, удовлетворение которых будет способствовать его социальной адап- тации. ОРП учитывает факторы риска криминальной активности несовершен- нолетних, проявляющиеся в следующих сферах: – криминальный опыт; – семейные обстоятельства; – образование и трудовая занятость; – отношения со сверстниками; – злоупотребление психоактивными веществами; – организация досуга; – личностные особенности; – социальные установки и ценности. Этот перечень охватывает большую часть базовых потребностей несовер- шеннолетних и позволяет оценить степень их удовлетворения, а также уровень криминальности способов их удовлетворения в прошлом. Неудовлетворение наиболее значимых потребностей, таких, как потребности в пище, жилье, заботе и внимании со стороны взрослых, медицинском обслуживании, обучении и не- которых других приводит к проблемам и трудностям в развитии ребенка, а за- тем и молодого человека, некоторые из которых уже не могут быть нивелиро- ваны полностью или восполнены в ходе дальнейшего развития. Зачастую имен- но эти проблемы порождают противоправное поведение несовершеннолетних, и их необходимо учитывать как при определении степени риска повторных правонарушений, так и при формировании реабилитационных программ. Ре- альное положение дел в этом вопросе помогает выявить ОРП. Кроме определе- ния факторов, способствующих совершению повторных правонарушений, ОРП позволяет определить и классифицировать факторы, которые могут оказать по- мощь в процессе реабилитации и социальной адаптации. Важным фактором в предотвращении приобретения несовершеннолетним криминального опыта является замена наказания в виде лишения свободы аль- тернативным. Так, например, согласно итальянскому законодательству суд мо- жет применить к несовершеннолетнему три меры воздействия, альтернативные мере наказания в виде лишения свободы. Ювенальный суд, как правило, ис- пользует все три альтернативные меры. Первая мера воздействия — признание Кузьмина В.М. Становление ювенальной юстиции в России 63 правонарушения «пренебрежительно незначительным» — применяется в слу- чае, когда проступок незначителен. Вторая мера воздействия — «судебное прощение», — применяется, когда правонарушители приговорены к наказанию до двух лет лишения свободы и когда возможно утверждать, что они не совер- шат повторного преступления. Применение указанной меры требует сохране- ния дела несовершеннолетнего на специальном контроле до достижения им/ей 21 года. Третья мера воздействия была введена новым УПК Италии в 1988 г. — это так называемая мера «досудебной пробации». Итальянская служба пробации имеет национальную специфику и отличает- ся от подобных служб других стран. Пробация в Италии подразумевает приос- тановку судебного разбирательства дела несовершеннолетнего на определен- ный промежуток времени. В течение пробационного периода, который длится в среднем восемь месяцев, несовершеннолетний обязан посещать реабилитаци- онные и образовательные программы и проекты. Мера «досудебной пробации» применяется ко всем без исключения видам преступлений, в том числе убийст- вам. Программы «досудебной пробации» составляются и осуществляются ра- ботниками судебных социальных служб в сотрудничестве с муниципальными государственными социальными службами. Ежегодно на «пробацию» направляется 6% дел несовершеннолетних, 30– 40% дел заканчивается «судебным прощением», остальные признаются «пре- небрежительно незначительными». Более широкое применение меры «проба- ции» ограничивается многими факторами, в частности, неразвитостью инфра- структуры социальных служб на местах, однако данный показатель имеет тен- денцию к росту. Итак, только в случае невозможности применения к несовершеннолетнему правонарушителю вышеперечисленных мер воздействия суд приговаривает его к наказанию в виде лишения свободы. Большое значение для реабилитации несовершеннолетнего правонаруши- теля имеет восстановительное правосудие. В России восстановительное правосудие рассматривается не только как ор- ганизация специальных судов для несовершеннолетних, но и как внедрение восстановительных технологий по сопровождению несовершеннолетнего пра- вонарушителя, по его социально-психологической реабилитации, т.е. оказанию комплексной социальной помощи детям, находящимся в трудной жизненной ситуации [2. С. 12]. Главная задача восстановительного правосудия в итальянской ювенальной юстиции заключается в восстановлении баланса социальной жизни людей, ут- раченных ими в результате конфликта, примирении сторон-участников. Основ- ные процедуры восстановительного подхода включают в себя два главных ком- понента: медиацию/примирение жертвы и правонарушителя и заглаживание вины / возмещение нанесенного вреда, ущерба. Медиация представляет собой процесс общения жертвы и правонарушите- ля с участием третьего беспристрастного лица (медиатора) либо непосредст- Вестник РУДН, серия Юридические науки, 2011, № 2 64 венно, либо заочно. Цель медиации — дать возможность жертве выразить свои чувства и претензии, а правонарушителю осознать и признать свою ответствен- ность. Заглаживание вины обидчиком перед пострадавшим помогает восста- новлению права пострадавшего на возмещение ущерба (физического, эмоцио- нального), причиненного ему в результате преступления. Компенсация может включать как извинение, финансовую выплату, работы и услуги по возвраще- нию или ремонту вещей, так и добровольное участие нарушителя в реабилита- ционных и образовательных программах. Проведение медиации «лицом к лицу» возможно только при обязательном согласии как самого правонарушителя, так и пострадавшей стороны. Анализ показывает, что доля согласившихся на медиацию несовершеннолетних значи- тельно варьирует от их возраста и характера совершенного противоправного деяния. Основной «целевой» группой, с которой работают центры примирения, являются подростки в возрасте 16–17 лет, совершившие преступления против личности. Положительные результаты медиации практически не зависят от со- вершенного подростком деяния: в группе преступлений против собственности положительные результаты немногим выше, чем в группе преступлений против личности. В Италии процедуры примирения жертвы и правонарушителя начали при- меняться с середины 1990-х гг. Открытию центров по примирению (далее — ЦП) предшествовали широкие дебаты о необходимости применения восстано- вительных практик. На сегодняшний день в Италии работает восемь ЦП. Все ЦП были созданы по инициативе уважаемых в муниципалитете профессионалов из числа юве- нальных судей и социальных работников судебной системы, поэтому все ЦП первоначально располагались в здании ювенального суда. Сегодня большая часть ЦП находится в отдельных зданиях, что открывает новый этап повыше- ния их независимости от судебной системы. Все ЦП финансируются из не- скольких источников (муниципальный, провинции и региональный бюджет), а также получают методическую и организационную поддержку от Департамента ювенальной юстиции Министерства юстиции Италии. Уголовно-процессуальный кодекс ювенального судопроизводства в Италии (448/1988) не содержит специальных указаний по проведению «медиации» или процедур «примирения жертвы и правонарушителя». Однако некоторые его нормы применяются в целях проведения практик восстановительного правосу- дия, в том числе и медиации. Решение о направлении дела в ЦП судьи и проку- роры принимают, когда преступление затрагивает интересы людей, уже знако- мых друг с другом, и преступление ставит под угрозу их взаимоотношения, а также если несовершеннолетний впервые предстает перед судом. В отсутствие специальных норм, прямо устанавливающих процедуру примирения сторон, судьи и прокуроры направляют дела в ЦП, опираясь на различные законода- тельные нормы. Так, прокуроры наиболее часто направляют дела несовершен- нолетних в ЦП, ссылаясь на статью Кодекса об «оценке личности несовершен- Кузьмина В.М. Становление ювенальной юстиции в России 65 нолетнего» в ходе предварительного расследования и/или предварительного слушания дела. По заказу прокурора ЦП проводят предварительное расследо- вание: изучают семью несовершеннолетнего, его ближайшее окружение. По по- ручению судьи судебная социальная служба также может проводить социаль- ное расследование по оценке личности несовершеннолетнего, а может заказать проведение подобного исследования центру по примирению. ЦП информируют прокурора и/или судью, судебные социальные службы о результатах предвари- тельного расследования или результатах процедуры примирения сторон, если таковое им было поручено. В случае успешного примирения сторон прокурор принимает решение о прекращении дела. Судьи, направляя дела в ЦП для проведения медиации и предварительного расследования, чаще всего используют норму направления на досудебную про- бацию (ст. 28 448/1988). В случае положительных откликов о прохождении не- совершеннолетним реабилитационных мероприятий программы пробации су- дья может принять решение о помиловании или прекращении дела, посчитав противоправное деяние подростка «пренебрежительно незначительным». Анализ статистики работы ЦП демонстрирует, что количество дел несо- вершеннолетних, направляемых судьями и прокурорами в ЦП для проведения медиации, медленно, но увеличивается год от года. Новый социальный институт обострил существовавшие ранее противоре- чия, обозначил проблемные точки системы профилактики и правосудия в от- ношении несовершеннолетних. Одним из проблемных моментов является плохо налаженная коммуникация и отсутствие обратной связи со стороны ювеналь- ных судов, судебных социальных служб. ЦП, выполняя «социальный заказ» ме- стного сообщества и предоставляя суду результаты собственной работы, не по- лучают в ответ никакой информации об окончательном решении суда. В отсутствие формальных законодательных норм работа института прими- рения закономерно регулируется нормами неформальными. Взаимодействие медиаторов, судей, прокуроров, социальных работников судебных служб на местах во многом определяется их личными контактами и неформальными се- тями. Хотя ЦП работают в Италии свыше десяти лет, они продолжают занимать маргинальную позицию в ювенальной юстиции. На сегодняшний день не суще- ствует единой системы оценки результативности их деятельности. Однако о по- ложительном социальном эффекте нового института можно, по мнению италь- янских исследователей, говорить уже на основании того, что, во-первых, вне- дрение восстановительных практик ознаменовало культурный сдвиг в традици- онной и в высокой степени консервативной системе правосудия. Во-вторых, на сегодняшний день дискуссии о том, что ЦП стали частью уголовного расследо- вания и процесса, а результаты их деятельности так или иначе влияют на судеб- ное решение, уже оформились в устойчивое консолидированное мнение экспер- тов и профессионалов. В России рабочие модели для системы профилактики преступлений несо- вершеннолетних начали отрабатываться с начала XXI в. В качестве рабочих Вестник РУДН, серия Юридические науки, 2011, № 2 66 моделей, которые могут быть включены в рекомендуемый стандарт, следует отнести, во-первых, технологический модуль «Комиссии по делам несовершен- нолетних и защиты их прав — служба восстановительных программ» [10. С. 40–45]. Во-вторых, подготовку специалистов в области ведения восстанови- тельных программ, технологии подготовки и содержании квалификации. В- третьих, детскую службу примирения в школе. Программы восстановительного правосудия позволяют изменить порядок ра- боты Комиссий по делам несовершеннолетних именно для решения задач их со- циализации, а не для их наказания или клеймения. Технологии примирения право- нарушителя и жертвы применимы и для восстановления конфликтных ситуаций между детьми и между детьми и взрослыми, поэтому они хорошо вписываются в работу детских общественных организаций — школьных служб примирения. При восстановительном подходе в работе с несовершеннолетними и их семьями используется новая схема работы Комиссий по делам несовершенно- летних: во-первых, в их деятельности участвуют специалисты по социальной работе; во-вторых, используются новые механизмы решения кризисных ситуа- ций, криминальных конфликтов — восстановительные программы, направлен- ные на поиск конструктивного решения возникших проблем. Данные эксперимента показывают, что восстановительные программы возможно применять к следующим типам ситуаций: – конфликты и правонарушения в детском и подростковом сообществе; – семейные конфликты из-за нарушения детско-родительских отношений; – конфликты «ученик — ученик», мешающие образовательному процессу; – конфликты из-за нарушения отношений между опекуном и опекаемым; – конфликты в организационных и местных сообществах; – конфликты из-за нарушений отношений супругов. В заключение следует отметить, что в России идея создания ювенальной юстиции поддерживается, утверждены и продолжают свою работу различные комиссии, проводятся парламентские слушания, закон «О ювенальных судах» пока не принят. Необходимость внедрения специальных ювенальных судов, а вместе с тем законодательного совершенствования процесса производства по делам несо- вершеннолетних в российском уголовном процессе не вызывает сомнений. Уровень рецидивной преступности среди молодежи остается высоким — 22%. Не всегда в полной мере удается защитить или восстановить права детей и в гражданском судопроизводстве. С высказываниями о всех положительных сторонах внедрения правосудия по делам несовершеннолетних в научных кругах обсуждается также вопрос о необхо- димости упрощения или, напротив, усложнения процесса доказывания. Так, на За- паде, по словам Л.В. Головко, основными предпосылками, обусловливающими развитие так называемых альтернатив уголовному преследованию, является необ- ходимость ускорения и упрощения уголовного процесса, стремление к максималь- но быстрому восстановлению прав потерпевшего [3. С. 12]. В отечественной уго- Кузьмина В.М. Становление ювенальной юстиции в России 67 ловно-процессуальной науке сегодня производство по данной категории дел рас- сматривается как разновидность усложненной формы уголовного процесса. Некоторые авторы при этом полагают, что целью применения усложнен- ных порядков является «обеспечение выполнения целей правосудия в экстраор- динарных случаях путем установления дополнительных процессуальных гаран- тий» [5. С. 61]. Однако все это сопряжено с рядом серьезных проблем, связан- ных, как правило, со специализацией правосудия, призванного служить не только воспитанию, реабилитации и адекватному наказанию социально труд- ных подростков, но и защите, максимально быстрому восстановлению закон- ных прав и интересов потерпевших, подвергшихся насилию от подростков. При этом восстановительный подход должен быть ориентирован не на снисхождение к несовершеннолетнему преступнику и освобождение его от от- ветственности, а наоборот, — на подлинную ответственность, поэтому стрем- ление к максимально быстрому восстановлению прав потерпевшего, примире- ние с ним, заглаживание вреда с привлечением самого социально неблагопо- лучного подростка в максимальной степени должно способствовать его пере- воспитанию. Поскольку восстановительная программа в отличие от реабилита- ционной состоит в том, чтобы подросток был не пассивным созерцателем в ре- шении его проблем, а активным ответчиком, стремящимся загладить нанесен- ный им вред, а взрослые оказывали бы ему в этом помощь и поддержку. Пола- гаем, взаимное сочетание социально-реабилитационной и восстановительно- воспитательной методик способно сделать большой шаг в дальнейшем исправ- лении несовершеннолетнего преступника. Наказание же в виде лишения свобо- ды блокирует в большинстве своем воспитательные механизмы. В целом успешное внедрение элементов ювенальной юстиции и, в частности, восстановительного правосудия в правоприменительную и социальную практику России позволит обеспечить устойчивое функционирование системы профилакти- ки безнадзорности и правонарушений несовершеннолетних, снизить преступность, оказать комплексную помощь ребенку, находящемуся в трудной жизненной ситуа- ции. Полученный практический опыт позволяет говорить о необходимости даль- нейшего развития ювенальных технологий в России как одного из важнейших ме- тодов работы с молодежью группы риска. Однако все это возможно осуществить только при разумном совершенствовании действующего российского законода- тельства с учетом международных стандартов и передового зарубежного опыта. ЛИТЕРАТУРА [1] Борисевич Г.Я., Соболева Л.А. О необходимости внедрения элементов ювенальной юс- тиции в правоприменительную практику России // Вестник Пермского университета. — 2007. — № 8 (13). [2] Восстановительное правосудие для несовершеннолетних и социальная работа (от про- ектов к практике) / Под общ. ред. Т.И. Марголина, Л.А. Соболевой. — Пермь, 2006. [3] Головко Л.В. Альтернативы уголовному преследованию как форма процессуальной дифференциации: Современные тенденции развития: Автореф. дисс. … докт. юрид. наук. — М., 2003. Вестник РУДН, серия Юридические науки, 2011, № 2 68 [4] Карнозова Л.М., Максудов Р.Р. Практические инициативы по созданию элементов ювенальной юстиции в России: идеи, формы реализации, препятствия. — М., 2004. [5] Макаркин А.И. Состязательность на предварительном следствии. — СПб., 2004. [6] Маккеллан Д. Правосудие по делам несовершеннолетних в США // Уголовная юсти- ция: проблемы международного сотрудничества. — М., 1994. [7] Минимальные стандартные правила Организации Объединенных Наций, касающиеся отправления правосудия в отношении несовершеннолетних (Пекинские правила) от 29 ноября 1985 г. // Международные акты о правах человека: Сб. документов. — М.: НОРМА—ИНФРА-М, 1998. [8] Постановление Верховного Совета РСФСР «О Концепции судебной реформы в РСФСР» от 24 октября 1991 г. // Ведомости Съезда народных депутатов РСФСР и Верховного Совета РСФСР. — 1991. — № 44. — Ст. 1435. [9] Постановление Пленума Верховного Суда РФ «О судебной практике по делам о пре- ступлениях несовершеннолетних» от 14 февраля 2000 г. № 7 (в ред. от 06.02.2007) // Российская газета. — 2000. — № 50. [10] Права детей: Сб. документов Совета Европы и Организации Объединенных Наций. — СПб., 2002. [11] Уголовный кодекс РФ от 13 июня 1996 г. № 63-ФЗ (в ред. от 29.12.2010) // Собрание законодательства Российской Федерации. — 1996. — № 25. — Ст. 2954. [12] Уголовно-процессуальный кодекс РСФСР от 27 октября 1960 г. (с послед. изм.) // Ве- домости Верховного Совета РСФСР. —1960. — № 40. — Ст. 592. [13] Уголовно-процессуальный кодекс РФ от 18 декабря 2001 г. (с послед. изм.) // Россий- ская газета. — 2001. — № 249. — 22 дек. [14] Федеральный закон «Об основах системы профилактики безнадзорности и правона- рушений несовершеннолетних» от 24.06.1999 № 120-ФЗ (в ред. от 30.06.2007) // Рос- сийская газета. — 1998. — № 147. [15] Федеральный закон «Об основных гарантиях прав ребенка в Российской Федерации» от 24.07.1998 № 124-ФЗ (в ред. от 30.06.2007) // Российская газета. — 1998. — № 147. [16] Andrews D.A., Bonta J., Hoge R.D. Criminal Justice and Behavior. — Ottawa, 1990. FORMATION OF JUVENILE JUSTICE IN RUSSIA V.M. Kuzmina The Department of Constitutional and Municipal Law Peoples’ Friendship University of Russia 6, Miklukho-Maklaya, Moscow, Russia, 117198 The article investigates the process of formation and development of juvenile justice in Russia. In particular, it carries out a comparative analysis of some aspects of juvenile justice, which are topical for the Russian Federation, and a comparative analysis of Anglo-Saxon and continental models of juvenile justice. The article notes the originality of the Russian model of juvenile legal proceeding and specifici- ties of its organization at the stage of origin of this institute. Key words: juvenile justice, juvenile courts, judicial reform, rights of the child, juvenile legal proceeding. 
work_onlgxxq625c6bmf5v3nmvdtolm	----	Correspondence Inner-city general practice population with schizophrenia Sir: Blair & Deaney (Psychiatric Bulletin. April 1998, 22. 221-225) give an enlightening view of the care of people with schizophrenia within primary care. They speculate on the difficulties of coordination of care and suggest realigning services so that community mental health teams(CMHTs) became "more practice sensitive". We have adopted this approach within Path finder Mental Health Trust in Wandsworth and Merton for some time now. Initially introduced in Wimbledon in 1986, it proved invaluable in setting up a time efficient and durable monthly liaison meeting between team and practices (Midgley et al. 1996, Burns & Bale, 1997). As a result of this experience (and of a survey ofgeneral practitioners' (GPs') view of our services conducted in 1995) 'practice alignment' was introduced across all nine of the general adult teams in 1996. The result is easier and more effective communication, better mutual under standing of strengths and weaknesses and a range of shared care that reflects the individual competencies of those involved. A further review of GP opinion in early 1998 indicated signifi cantly improved satisfaction with our services. Achieving GP alignment is not easy, nor is it problem-free. The transfer of care took over a year and was disruptive for many patients and their keyworkers. The complexity of some of the arrangements (three way swaps, etc.) has to be experienced to be believed and not all teams or practices could move at the same pace. Sensible policies for exceptions such as patients with no GP, are in transit between GPs (often a sign that something dramatic is on the go) or who are living with their mother and consulting one GP while being registered with another etc. require tolerance and some ingenuity. Patients served by each CMHT are now more widespread, noticeably increasing travelling time. We experimented with one group practice to include patients resident in the neighbouring borough and the results were not good. Problems consistently arose both in coordination of long- term health and social care and in emergency procedures. After several months of trying, both the GPs and CMHT agreed that it is not a sensible option. Would it be so outrageous to suggest in our new primary care-led National Health Service that the time has come for GPs to change on this one? In urban settings surely primary care should start to move towards co- terminosity with health authorities and social services.Blair & Deaney's considerations of the opti mum integration of GPs with CMHTs (and social services) are particularly important and timely as we approach the planning for primary care commissioning groups. BURNS.T. & BALE. R. (1997) Establishing a mental health liaison attachment with primary care. Advances m Psy chiatric Treatment. 3. 219-224. MIDGLEY,S.. BURNS. T. & GARLAND,C. (1996) What do mental health teams and general practitioners talk about? Descriptive analysis of liaison meetings in general practice. British Journal of General Practice, 46. 69-71. TOM BURNS, Clinical Director of Adult Services, Pathfinder Mental Health (NHS) Trust. Spring field Hospital. London SW17 7DJ Proposed reforms to civil justice Sir: Psychiatrists offering their services as expert witnesses must be aware of the proposed reforms to civil justice. If these reforms, which suggest fundamental changes to the very structure of civil litigation, succeed experts will face greatly changed demands. For example, legal aid looks set to become alicensed service with only 'franchised' firms permitted to undertake legal aid work by Jan uary 2000. Those experts wishing to work on the much-reduced volume of legal aid cases will need to be listed as 'approved' by franchised firms. Experts may well be asked to agree to lower ormuch-delayed payment for this 'privilege'. Furthermore, the Government's proposal to control legal aid costs by removing monetary claims from legal aid is contingent upon success fully increasing the scope of conditional fee arrangements (CFAs). This means expert wit nesses will face increasing pressure from somesolicitors to accept work on a "no-win", 'no-fee' basis. Some practising solicitors believe the only feasible way for them to undertake work on a no- win, no-fee basis is if experts agree to share the risks. However, most individual experts, the Society of Expert Witnesses and the Law Society are united in their rejection of contingent payment terms for experts because they wouldfatally wound the expert's claim to impartiality. However. CFAs may also mean more work for experts, who can expect to be asked for advice in the early stages of risk assessment undertaken Psychiatric Bulletin (1998), 22. 639-642 639 CORRESPONDENCE by solicitors contemplating a CFA. In these cases, accurate risk assessment is essential to the solicitor, particularly because after-the-event insurance is currently available for only a very specific category of personal injury cases. At this stage, insurers are unclear about how they can expand the existing system to cover other types of case, meaning that solicitors who choose to accept those cases must run them bare of insurance. Given the problems potential litigants now face with the court system, alternative dispute reso lution (ADR) methods are increasing in popular ity. ADR offers several alternatives to traditional court methods and a number of opportunities for expert involvement. Within the scope of ADR. experts can act as advisors or offer expert appraisal of a technical issue. Parties may alsoagree to an 'expert determination', where an expert rules conclusively on the issue for them, or ask the experts to take on the role of mediator. Experts interested in obtaining further details can contact the Society of Expert Witnesses on (0345) 023014 or write to PO Box 345, New market CB8 7TU. VANESSALUMPKIN,Professional Liaison, Society of Expert Witnesses, PO Box 345, Newmarket CB8 7TU Health of the Nation Outcome Scales for People with Learning Disabilities Sir: Further to the publication of the originalpaper 'HoNOS in long-stay patients with learning disabilities' (Psychiatric Bulletin, May 1988. 22. 306-308), we are writing to keep you informed of recent developments with regard to the piloting of the Health of the Nation Outcome Scales for People with Learning Disabilities (HoNOS-LD). HoNOS-LD is the result of a collaboration between the Department of Health, the Royal College of Psychiatrists and the Centre for Out comes, Research and Clinical Effectiveness (CORE) at the British Psychological Society, University College London. Like the generic HoNOS, HoNOS-LD is a set of scales designed to measure outcomes in a population of people with mental health needs. It retains the five-point scale of severity of problems, but has greater context reliability with regard to the associated needs of the client group. HoNOS-LD has 18 items, is designed for people irrespective of their degree of learning disability and should be used by trained professionals. North Warwickshire National Health Service (NHS) Trust has allocated resources for the post of Regional Clinical Audit Coordinator who has responsibility for training, data analysis and dissemination in an area north of a line from the Wash to the Bristol Channel, while CORE have employed a researcher to take responsi bility for the same in participating trusts in the south. Following a training day, agreement was reached that HoNOS-LD would need to be tested rigorously for interrater reliability and sensitivity to change. Version 2 is currently being piloted at over 20 sites (all NHS trusts) throughout the United Kingdom. It is expected that data analysis will have been completed in Autumn this year and, if the instrument is demonstrated to have acceptable reliability, will be made available by the Depart ment of Health for use in routine clinical practice for people with learning disabilities and mental health needs. DAVIDMARTIN,Regional Clinical Audit Co ordinator, and ASHOKROY,Consultant Psychia trist, HoNOS-LD, Brooklands. Coleshill Road. Marston Green, Birmingham B37 7HL The practice of evidence-based journal clubs Sir: Geddes (Psychiatric Bulletin, June 1998. 22, 337-338) states that an evidence-based journal club (EBJC) presentation can be prepared in two hours. This may be the case at the centre for evidence-based mental health in Oxford, but here in Britain's most northerly department of academic psychiatry we struggle to believe it. Perhaps our remoteness from such a centre of excellence slows our thinking, but we do not see how the process can be effected in such a brief time. In Aberdeen we recently introduced an EBJC linked to the weekly case conference and we encourage junior staff to present. We find the preparation process takes considerably longer than Geddes allows, for several reasons. Many presenters lack experience in critical appraisal and require individual mentorship, not always available through their weekly educational supervision. The authors act as mentors, taking particular responsibility for helping trainees develop the required skills. The clinical question is set three weeks ahead of the session by the consultant presenting the case and it is helpful for a mentor to be involved. The presenter requires guidance in the process of searching the literature databases and deciding which papers to select. Obtaining papers not held locally may take some weeks. Critical review may involve the trainee having to ask others for assistance in assessment of study methods, particularly statistics. Finally, the presenter needs to prepare materials and may wish to rehearse their presentation. 640 Correspondence 
work_oopkwugklfbf3jflad2gbkmsca	----	This work is no longer available Skip to main content MENU   Toggle navigation menu Sign up Log in Osgoode Hall Law School of York University Faculty Research Profiles Expert Gallery Trevor C. W. Farrow Follow Contact This work is no longer available. Find more of this author's works at: Trevor C. W. Farrow Copyright 1999–2021 bepress.™ All rights reserved. Contact Us Terms of Service Copyright Privacy Policy User Guide Back to Top 
work_osxz57ujknbmdhcxmwkm6yqvaa	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221731472 Params is empty 221731472 exception Params is empty 2021/04/06-03:20:28 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221731472 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:28 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_ou7dovs6pnd6fpmvzegeri2xji	----	0033.tif A Social Justice Agenda Vickie M. Mays University of California, Los Angeles T he m o r a l i m p e r a t i v e o f f e r e d to p s y c h o l o g y b y b o t h J a c k s o n (2000, this issue) and Strickland (2000, this i s s u e ) is to m o v e into this n e w c e n t u - r y l e a v i n g not one s i n g l e p e r s o n b e h i n d . N o one s h o u l d h a v e t h e i r future, t h e i r h e a l t h , or t h e i r w e l l - b e i n g c o m - p r o m i s e d f o r r e a s o n s o f c l a s s , g e n d e r , n a t i o n a l o r i g i n , p h y s i c a l a n d p s y c h o l o g i c a l a b i l i t i e s , r e l i g i o n , or s e x u - al o r i e n t a t i o n , or as a r e s u l t o f u n f a i r d i s t r i b u t i o n o f r e s o u r c e s . B o t h a u t h o r s e x h o r t p s y c h o l o g i s t s to w o r k d i l i g e n t l y to e n s u r e the b r i g h t e s t f u t u r e for all. In 1999, the A m e r i c a n Psychological Association (APA) embraced issues o f race, ethnicity, culture, and mul- ticulturalism. This focus was historic in its scope and re- sulted in rich contributions to the field. The presidency o f Richard Suinn, the first Asian American president o f APA, which coincided with the terms o f five division presidents drawn from persons o f color (D. W. Sue, Bingham, Porchr- Burke, & Vasquez, 1999), became an organizing force that concentrated the association's ability to address questions o f diversity, difference, and inequality (D. W. Sue et al., 1999). This was most evident at two meetings: the January 1999 National Multicultural Conference and Summit (NMCS) and A P A ' s 107th annual convention in August 1999. At the APA convention, m a n y psychologists participated in an opening ceremony o f cultural sharing, highlighted b y the interconnectedness o f the participants despite their m a n y differences. The Reverend Jesse Jackson spoke eloquently at the ceremony about the inequalities in U.S. society and the social problems they generate: increased violence, a sense o f hopelessness, deteriorating physical and mental health, and reductions in health care, social services, and the quality and amount o f educational resources. The tools o f psychology in the next century ought to address Strickland's and Jackson's concerns about those who are different. The tools should possess not only internal validity but extemal validity (S. Sue, 1999), or they will fail to address the inclusive social justice agenda that Jackson (2000), Strickland (2000), and the participants in the NMCS (D. W. Sue et al., 1999) see as A P A ' s moral imperative in t h i s next century. Psychology, as a discipline, needs also to ensure that its approaches to promoting psychological well- being and preventing mental disorders are culturally valid and available, delivered competently, and affordable to all who need them (Ziglio, Levin, & Bertinato, 1999). We can learn from the field o f public health, which advocates pre- vention at a community or population level to eliminate or significantly reduce morbidity (Albee, 1998a, 1998b). Ef- fective prevention will help individuals find ways o f build- ing their individual capacity, but achieving good mental health at an individual level is often beyond the control o f individuals. We enter the new millennium with the United States enjoying a sustained period o f extraordinary wealth. This wealth offers both unthought-of possibilities and dangers. On the one hand, we now possess the resources to address difficulties that can only be solved b y investment in our c o m m o n social future. On the other hand, g r o w i n g eco- n o m i c inequalities threaten our v e r y social c o h e s i o n (Ka- plan, 1996; Kaplan, P a m u k , L y n c h , Cohen, & Balfour, 1996; Wallace, 1996; Wilkinson, 1996; Wolff, 1995) and have presented the public with apparently senseless crimes where children kill children, where police kill the mentally ill, and where m a n y die from preventable illness because they were the last to get health care. At the same meeting where the Reverend Jackson spoke, Strickland (2000), in her Distinguished Contributions to Psychology in the Pub- lic Interest Award address, issued a summons for psycholo- gists to rise to the challenge issued at an APA meeting over 30 years ago by Dr. Martin Luther King, Jr., (1968) and renewed by Jackson (2000). I f p s y c h o l o g y is to show society the path to greater equality a m o n g its m e m b e r s , p s y c h o l o g i s t s m u s t d e m o n s t r a t e that p s y c h o l o g y ' s m e t h - ods and p r o c e d u r e s can e m b r a c e diversity. Whereas King worried primarily about gaps in equality between races, Jackson (2000) and Strickland (2000) p r e s e n t e d a b r o a d e r agenda in which they i m p l o r e d social scientists to under- stand that the behaviors they seek to study, modify, and eliminate are related to gaps resulting from poverty, inequal- ity, and inequity (Kawachi, Wilkinson, & Kennedy, 1999; Mays & Cochran, 1994, 1998; Mays, Coleman, & Jackson, 1996; Sampson, Raudenbush, & Earls, 1997). These behaviors are inextricably linked to wealth, economics, education, gov- ernmental policies, and even the professional policies of psychology. P s y c h o l o g y m u s t not focus i t s e l f solely on the m e n - tal health o f individuals w h e n the nation is trying to understand the senseless torture and death o f p e o p l e hated because o f their gender, race, religious beliefs, or sexual orientation. P s y c h o l o g i s t s must not l o o k m e r e l y to individual b e h a v i o r to grasp w h y a 12-year-old girl b e c o m e s pregnant intentionally, an l l - y e a r - o l d shoots another child, or police sodomize a man in custody, or to understand ethnic cleansings. Strickland (2000) observed that the future o f psychology requires psychologists to be willing to articulate, teach, and develop a body o f science informed b y social justice. Psychologists must not be afraid to teach, engage in clinical practice, and develop public policy Correspondence concerning this article should be addressed to Vickie M. Mays, University of California, 1283 Franz Hall, 405 Hilgard Avenue, Box 951563, Los Angeles, CA 90095-1563. Electronic mail may be sent to mays@ucla.edu. 326 March 2000 • American Psychologist Copyright 2000 by the American Psychological Association, Inc. 0003-066X/00/$5.00 Vol. 55, No. 3.32(~327 DOI: 10 1037//0003-066X.55.3.326 Vickie M. Mays a n d r e s e a r c h a b o u t r a c i s m , s e x i s m , c l a s s i s m , h o m o p h o b i a , a n d o t h e r d i v i s i v e p e r s p e c t i v e s t h a t e n a b l e p e o p l e t o t r e a t t h o s e w h o a r e d i f f e r e n t f r o m t h e m s e l v e s f a i r l y a n d c o m p e - t e n t l y . O u r p r o g r e s s as a d i s c i p l i n e , as a n a t i o n , a n d a s g l o b a l c i t i z e n s d e p e n d s o n o u r a b i l i t y t o i n c l u d e e v e r y o n e i n t h e f u t u r e - - t o b e f a i r t o all, n o t j u s t t o s o m e . REFERENCES Albee, G. W. (1998a). Fifty years of clinical psychology: Selling our soul to the devil. Applied and Preventive Psychology, 7, 189 194. Albee, G. W. (1998b). The politics of primary prevention. Journal o f Primary Prevention, 19, 117 127. Jackson, J. (2000). What ought psychology to do? American Psycholo- gist, 55, 328-330. Kaplan, G. A. (1996). People and places: Contrasting perspectives on the association between social class and health. International Journal o f Health Services, 26, 507-519. Kaplan, G. A., Pamuk, E. R., Lynch, J. W., Cohen, R. D., & Balfour, J. L. (1996). Inequality in income and mortality in the United States: Analysis of mortality and potential pathways. British Medical Jour- nal 312, 999-1003. Kawachi, I., Wilkinson, R. G., & Kennedy, B. (1999). Introduction. In I. Kawachi, B. P. Kennedy, & R. G. Wilkinson (Eds.), The society and population health reader: Income inequali~ and health (pp. xi- xxxiv). New York: New Press. King, M. L., Jr. (1968). The role of the behavioral scientist in the Civil Rights movement. American Psychologist, 23, 180-186. Mays, V. M., & Cochran, S. D. (1994). Depressive distress among homo- sexually active African American men and women. American Jour- nal o f Psychiat~, 151,524-529. Mays, V. M., & Cochran, S. D. (1998). Racial discrimination and health outcomes in African Americans [CD-ROM]. Proceedings o f the 27th Public Health Conference on Records and Statistics and the Nation- al Committee on Vital and Health Statistics 47th Annual Symposium. Washington, DC: U.S. Department of Health and Human Services. Mays, V. M., Coleman, L. M., & Jackson, J. S. (1996). Perceived race- based discrimination, employment status, and job stress in a national sample of Black women: Implications for health outcomes. Journal o f Occupational Health Psychology, 1, 319-329. Sampson, R. J., Raudenbush, S. W., & Earls, F. (1997, August 15). Neighborhoods and violent crime: A multilevel study of collective efficacy. Science, 277, 918-924. Strickland, B. R. (2000). Misassumptions, misadventures, and the mis- use of psychology. American Psychologist, 55, 331-338. Sue, D. W., Bingham, R. P., Porehr-Burke, L., & Vasquez, M. (1999). The diversification of psychology: A multieultural revolution. American Psychologist. 54, 1061-1069. Sue, S. (1999). Science, ethnicity, and bias: Where have we gone wrong? American Psychologist, 54, 1070-1077. Wallace, R. (1996). Inner-city decay and the health of the nation. Current Issues in Public Health, 2, 26-28. Wilkinson, R. G. (1996). Unhealthy societies: The afflictions o f ine- qualio'. London: Routledge. Wolff, E. N. (1995). Top hea~': A study' o f the increasing inequality o f wealth in America. New York: Twentieth Century Fund. Ziglio, 15., Levin, L. S., & Bertinato, L. (1999). Social and economic detemainants of health: Implications for promoting the health of the public. In D. Harrison & E. Ziglio (Eds.), Social determinants o f health: Implications .for the health professions (Forums in Experi- mental and Clinical Medicine, Suppl. 4). Retrieved February 17, 2000, from the World Wide Web: http://www.accmed.net/hpi/ documenti/index.htm M a r c h 2 0 0 0 • A m e r i c a n P s y c h o l o g i s t 3 2 7 
work_ouewmgbtqzfvtprpjfsphnb6ze	----	Ethics & Global Politics: Vol 14, No 1 Log in  |  Register Cart Home All Journals Ethics & Global Politics List of Issues Volume 14, Issue 1 Ethics & Global Politics An open access journal Publishes research on ethics and global politics, exploring environmental protection, policy development, poverty, technology and knowledge, migration and more. Search in: This Journal Anywhere Advanced search Submit an article New content alerts RSS Citation search Citation search Current issue Browse list of issues Explore Top About this journal Journal metrics Aims and scope Instructions for authors Journal information Editorial board News & offers Editorial policies Latest articles See all volumes and issues Volume 14, 2021 Vol 13, 2020 Vol 12, 2019 Vol 11, 2018 Vol 10, 2017 Vol 9, 2016 Vol 8, 2015 Vol 7, 2014 Vol 6, 2013 Vol 5, 2012-2013 Vol 4, 2011 Vol 3, 2010 Vol 2, 2009 Vol 1, 2008 Login or register to access this feature Have an account? Login nowDon't have an account? Register for free Register a free Taylor & Francis Online account today to boost your research and gain these benefits: Download multiple PDFs directly from your searches and from tables of contents Easy remote access to your institution's subscriptions on any device, from any location Save your searches and schedule alerts to send you new results Choose new content alerts to be informed about new research of interest to you Export your search results into a .csv file to support your research Register now or learn more Download citations Choose format RIS (ProCit, Reference Manager) BibTeX RefWorks Direct Export Download citations Download citations Download PDFs Browse by section (All) Display order (Default) Published online date Page number Section A-Z Most read Most cited Ethics & Global Politics, Volume 14, Issue 1 (2021) Issue In Progress Original Article Article What Kind of Functionings Matter for Global Justice for Children? Gottfried Schweiger Article: 1873576 Published online: 19 Jan 2021 Abstract | Full Text | References | PDF (318 KB) | Permissions  610Views 0CrossRef citations Altmetric Review Article review article Beyond lockdown? The ethics of global movement in a new era Guy Aitchison Published online: 04 Mar 2021 Abstract | Full Text | References | PDF (300 KB) | Permissions  563Views 0CrossRef citations Altmetric Explore Most read articles Most cited articles Multimedia Information for Authors Editors Librarians Societies Open access Overview Open journals Open Select Cogent OA Dove Medical Press F1000Research Help and info Help & contact Newsroom Commercial services Advertising information All journals Books Keep up to date Register to receive personalised research and resources by email Sign me up Taylor and Francis Group Facebook page Taylor and Francis Group Twitter page Taylor and Francis Group Linkedin page Taylor and Francis Group Youtube page Taylor and Francis Group Weibo page Copyright © 2021 Informa UK Limited Privacy policy Cookies Terms & conditions Accessibility Registered in England & Wales No. 3099067 5 Howick Place | London | SW1P 1WG Accept We use cookies to improve your website experience. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. By closing this message, you are consenting to our use of cookies. 
work_ovvhcjnjbvd7jhsjrfdmwcfeha	----	EAQ293717.qxd Educational Administration Quarterly Vol. 43, No. 2 (April 2007) 221-258 Social Justice Educational Leaders and Resistance: Toward a Theory of Social Justice Leadership George Theoharis Purpose: A subgroup of principals—leaders for social justice—guide their schools to transform the culture, curriculum, pedagogical practices, atmosphere, and schoolwide priorities to benefit marginalized students. The purpose of the article is to develop a theory of this social justice educational leadership. Research Design: This empirical study examined the following questions: (a) In what ways are principals enacting social justice in public schools? (b) What resistance do social justice–driven principals face in their justice work? (c) What strategies do prin- cipals develop to sustain their ability to enact social justice in light of the resistance they face in public schools? Data Collection and Analysis: A critical, qualitative, positioned-subject approach com- bined with principles of autoethnography guided the research methods. Seven public school leaders who came to the principalship with a social justice orientation, who make issues of race, class, gender, disability, sexual orientation, and other historically margin- alizing factors central to their advocacy, leadership practice, and vision, and who have demonstrated success in making their schools more just, were studied through interviews. Findings: A description of (a) how the principals enacted social justice, (b) the resis- tance they faced as well as the toll the resistance had on them, and (c) the strategies they developed to sustain their social justice work is provided in detail. Implications for administrator preparation are made at the close of this article. Keywords: social justice; leadership; equity; principals; resistance The literature on leadership for social justice identifies schools that have demonstrated tremendous success not only with White, middle-class, and affluent students but also with students from varied racial, socioeconomic, lin- guistic, and cultural backgrounds (Capper & Young, in press; Maynes & 221 DOI: 10.1177/0013161X06293717 © 2007 The University Council for Educational Administration - Sarbit, 2000; Oakes, Quartz, Ryan, & Lipton, 2000; Riester, Pursch, & Skrla, 2002; Scheurich, 1998; Touchton & Acker-Hocevar, 2001). A recur- ring theme from these schools and from the literature on school change is that exemplary leadership helps point to the necessity for change and helps make the realities of change happen (Bell, Jones, & Johnson, 2002; Blackmore, 2002; Bogotch, 2002; Fullan, 1993; Goldfarb & Grinberg, 2002; Grogan, 2002a, 2002b; Lyman & Villani, 2002; Rapp, 2002; Riester et al., 2002; Solomon, 2002). This article seeks to enhance administrative practice and the understanding of social justice leadership. Three aspects of this article make it distinct from the growing body of literature on leadership for social justice. First, this empirical study started with the principal as the unit of analysis, whereas previous literature focuses on effective schools as the unit of analysis (Capper & Young, in press; Maynes & Sarbit, 2000; Oakes et al., 2000; Scheurich, 1998; Touchton & Acker-Hocevar, 2001). In other words, this study focused on identifying principals who came to the field with a calling to do social jus- tice work and from there expanded to exploring their accomplishments and struggles. In identifying these principals, I sought to examine leaders who were more than figureheads or managers of their schools and distinct from even dynamic instruction leaders. The principals identified were social justice advocates. Second, this article makes the necessary connection between social jus- tice and inclusion of students with disabilities; whereas there is minimal (Riester et al., 2002) discussion of special education and inclusive prac- tices in the body of literature on social justice leadership. This connection is grounded in the belief that social justice cannot be a reality in schools where students with disabilities are segregated or pulled out from the regu- lar classroom, or receive separate curriculum and instruction. Third, whereas there is theoretical work in the area of social justice and leadership (Blackmore, 2002; Bogotch, 2002; Dantley, 2002; Furman & Gruenewald, 2004; Larson & Murtadha, 2002; MacKinnon, 2000; Marshall & Ward, 2004; Rapp, 2002; Shields, 2004), there is an absence of studies that specif- ically address the ways in which leaders enact justice, the resistance they face in that work, and how leaders maintain themselves to continue their pursuit of equity and justice. DEFINING SOCIAL JUSTICE LEADERSHIP The literature is rife with definitions of social justice (Blackmore, 2002; Bogotch, 2002; Furman & Gruenewald, 2004; Gewirtz, 1998; Goldfarb & Grinberg, 2002). Gewirtz provides a meaning of social justice centered on the 222 Educational Administration Quarterly ideas of disrupting and subverting arrangements that promote marginalization and exclusionary processes. Social justice supports a process built on respect, care, recognition, and empathy. Goldfarb and Grinberg define social justice “as the exercise of altering these [institutional and organiza- tional] arrangements by actively engaging in reclaiming, appropriating, sustaining, and advancing inherent human rights of equity, equality, and fairness in social, economic, educational, and personal dimensions” (p. 162). However, Bogotch asserts that social justice is a social construction and that “there are no fixed or predictable meanings of social justice prior to actually engaging in educational leadership practices” (p. 153). The definition of social justice leadership for this study was informed by the work of Gewirtz (1998) as well as Goldfarb and Grinberg (2002), who collectively center issues of social justice on an ultimate concern for situa- tions of marginalization. Bogotch (2002) put forth a challenge in which the definition of social justice cannot be separate from the practices of educational leadership. In using these scholars’ definitions and in heeding Bogotch’s challenge, the definition of social justice for this study is grounded in the daily realities of school leadership. For this article, I define social justice leadership to mean that these principals make issues of race, class, gender, disability, sexual orientation, and other historically and currently marginal- izing conditions in the United States central to their advocacy, leadership practice, and vision. This definition centers on addressing and eliminating marginalization in schools. Thus, inclusive schooling practices for students with disabilities, English language learners (ELLs), and other students tra- ditionally segregated in schools are also necessitated by this definition. Sapon-Shevin (2003) stated, “Inclusion is not about disability. . . . Inclusion is about social justice. . . . By embracing inclusion as a model of social jus- tice, we can create a world fit for all of us” (pp. 26, 28). The definition I used for this study builds on Sapon-Shevin’s groundwork linking inclu- sive schooling and social justice. RESEARCH QUESTIONS To highlight the multiple ways in which school principals enacted social justice in their respective schools, the resistance they face in that work, and the resilience they develop to sustain their social justice work, the follow- ing research questions served as guideposts for this study: 1. In what ways are principals enacting social justice in public schools? 2. What resistance do social justice–driven principals face in their justice work? 3. What strategies do principals develop to sustain their ability to enact social justice in light of the resistance they face in public schools? Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 223 RESEARCH METHODOLOGY AND THEORETICAL FRAMEWORK This research focused on studying principals who sought their positions in educational administration in order to enact social justice and equity in the schools they led. I grounded this research in qualitative methods using a positioned-subject approach (Conrad, Haworth, & Millar, 2001). In a positioned-subject approach, the researcher assumes that the principals under investigation actively create meaning from and interpret their work. The positioned-subject approach of this inquiry was selected because it allowed me to take in the varied perspectives of a particular group of edu- cational leaders and interpret their experiences through the lens of their par- ticular situation and social justice goals. Whereas feminist and postmodern theories have significantly influenced this research endeavor, I grounded this study primarily in critical theory (Bogdan & Biklen, 1998; Carspecken, 1996; Roman & Apple, 1990). All three of these traditions influenced this work because I believe that the world is complex, influenced by power relations, and not necessarily empirically knowable. I find common ground with these traditions in their understanding that a researcher’s culture, background, race, ethnicity, gender, sexuality, class, and experience inform her or his work and that a researcher brings ideas, assumptions, and theoretical understandings to each endeavor in the field (Bogdan & Biklen, 1998). This study and my experience as a White male leader for social justice were driven by the belief, held widely by critical theorists, that my work should “benefit those who are marginalized in the society” and that “the current way society is organized is unjust” (Bogdan & Biklen, 1998, p. 21). Whereas all of the principals in this study may not identify themselves as critical theorists, their work to transform their schools to benefit the most marginalized students and families, to address issues of race and class, and to focus their vision on developing a just school certainly aligned with this view and theoretical orientation. The critical orientation of my work and my own desire for social change align with the tradition and description of activist research (Fine, 1994). Fine provides a general definition of activist research: “Some researchers fix themselves self-consciously as participatory activists. Their work seeks to unearth, disrupt, and transform existing ideological and/or institutional arrangements” (p. 17).1 In designing this study, I borrowed from the tradition of autoethnogra- phy (Cole & Knowles, 2001) and included myself, a principal driven to 224 Educational Administration Quarterly enact social justice, as one of the subjects. In doing so I combined the qual- itative, positioned-subjects methodology with principles from autoethnog- raphy. Cole & Knowles define autoethnography as a research design that “places the self within a sociocultural context. . . . Autoethnography uses the self as a starting point or vantage point from which to explore broader sociocultural elements, issues or constructs” (p. 16).2 Including myself enabled me to make this work more personal and reflective. Tierney (1998) and Mbilinyi (1989) suggest that these are essen- tial elements to meaningful scholarship. I do not see this methodological choice as self-indulgent—“not as an act of hubris,” as Tierney notes, “but as a necessary methodological device to move us toward a newer under- standing of reality, ourselves and truths” (p. 56). The principles of autoethnog- raphy and self-study that I borrowed for this study can be understood as opening my experiences and myself to study in a critical, reflective, and serious manner. Combining in one study an examination of my practices and experiences with those of other principals provided for deeper and broader understanding of the issues and strategies discussed. For me, study- ing social justice principals and hiding my experience by not including myself in the study would have felt disingenuous and would not have pro- vided the authenticity I sought. Numerous scholars have used autoethnography as a methodological tool for gaining understanding into various issues (Anderson, 1996; Cole & Knowles, 2000; Dews & Law, 1995; Ellis, 2004; Franzosa, 1999; Jackson, 1995; Knowles, Cole, & Presswood, 1994; Meneley & Young, 2005; Schoem, 1991). Whereas no educational leadership research has been published that combines the principles of autoethnography with qualita- tive, positioned-subjects methodology as I did, Meneley and Young pro- vide description of varied scholarly practices utilizing autoethnographic methodologies. Whereas I included myself in this study, I wrote the findings and dis- cussion in the third person, even when I am speaking of my own experi- ences. I used pseudonyms for the other principals as well as for myself. I did this because I am only one subject in a group of activist principals, and changing to the first person or using my name exerts a particular power that unnecessarily shifts the focus to my experiences over the experiences of the group of principals. The method of data collection relied on a series of in-depth interviews, a review of documents and materials, a detailed field log, and a group meet- ing of the principal participants. I included data from my own experience as a principal leading for social justice, completing interviews on my expe- riences with the assistance of a doctoral student / principal. This principal Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 225 interviewed me in the same manner and using the same interview protocol that I used when I conducted the interviews of the other principals. I used the constant comparative method of data analysis (Bogdan & Biklen, 1998; Glaser & Strauss, 1967; Strauss & Corbin, 1998) using both inductive and deductive components (Erickson, 1986; Graue & Walsh, 1998; Strauss & Corbin, 1998). The constant comparative method was utilized for this research endeavor because the design contained “multi-data sources” (Bogdan & Biklen, p. 66). This method worked well with the guiding research questions in that “key issues, recurrent events, or activities in the data that become categories of focus . . . discover basic processes and rela- tionships” (Bogdan & Biklen, p. 67). The process of constant “doubling back to more data collection and coding” provided an essential analytical approach to understanding the data from principals working for social justice.3 Trustworthiness is a key component to any study and, as Glesne (1999) states, “is an issue that should be thought about during research design as well as in the midst of data collection” (p. 32). I used triangulation (Crowson, 1993), member checks and debriefing (Glesne, 1999), and con- stant reflectivity and humility (Eisenhart & Howe, 1992; Kincheloe & McLaren, 1994; Tierney, 1998) to enhance the trustworthiness of this work.4 Being a member of the group studied, a group that shares significant qualities and values, also enhanced the reflective and humility aspects of trustworthiness. Tierney problematizes studying the “Other” who is “in many respects powerless or exotic to the author on a grand level” (p. 58). He asserts that studying a group to which you do not belong can be rein- forcing of existing power inequities and additionally can be condescending. In studying a group to which I belong, I sought to move away from these specific problems or issues Tierney raises. Whereas there are problems with studying yourself and problems with studying a group to which you belong, doing so does move away, at least slightly, from an unequal distribution of power between the participants and the researcher. In this study I sought to “in effect make ourselves, rather than the Other, vulnerable; we reveal our- selves in the text as a narrative character, not as an act of hubris but as a nec- essary methodological device to move us toward a newer understanding of reality, ourselves and truths” (Tierney, 1998, p. 56). Participants For this study I sought participants who did not fit the traditional under- standing that school leaders are essentially managers. Additionally, I sought participants who operated from a place beyond the newer understanding 226 Educational Administration Quarterly that principals are instructional leaders, principals who embodied a com- mitment to enacting justice and equity. Using purposeful and snowball sam- pling (Bogdan & Biklen, 1998; Maxwell, 1998), 18 principals were referred to participate in this study. I started this sampling with 2 principals with whose work I was familiar from overlapping graduate and professional experiences. These principals recommended other principals who might meet the criteria, as well as university faculty who might know additional principals who could contribute to the study. This purposefully snowballed into a potential sample of 18 principals. Whereas a number of important pieces of empirical work on leaders for social justice have focused on prin- cipals in one state (Riester et al., 2002; Scheurich, 1998; Skrla et al, 2004; Touchton & Acker-Hocevar, 2001; Vibert & Portelli, 2000), these 18 nom- inated principals spanned three Midwestern states and four major metro- politan areas. Eight principals met the selection criteria,5 but only 7 agreed to participate in this study. All 7 principals worked in urban schools in the Midwest. Of the 7 par- ticipants, 4 were secondary principals (2 high school and 2 middle school) and 3 were elementary principals. One identified as Asian and 6 identified as White. One identified as gay and out in the community and 6 identified themselves as heterosexual. Three of the principals were women and 4 were men. Their administrative experience ranged from 3 to 16 years. The prin- cipals’ ages ranged from the early 30s to the mid-50s. Whereas this group is diverse in a number of ways, clearly it is not a racially diverse group. Five principals of color were referred to me through the snowball sampling process, but only one met the criteria for selection.6 Table 1 details the school demographics of the principal participants. It is both arrogant and shortsighted to assume that any research endeavor does not have ethical considerations. Whereas there were a number of ethical considerations for this study, the primary concern was to “do no harm” to the principal participants. Lee and Renzetti (as cited in Goodson & Sikes, 2001) suggest using certain care for research subjects when the research examines deeply personal experiences and when the work impinges on people in power. Because these principals are so closely connected to their work, they challenge the norms of their communities, and do not fit the traditional metanarrative of the principal. I felt an ethi- cal obligation to do no harm because of the sensitive nature of their inter- views. To help deal with the potential sensitivity of this work and to do no harm to the principals involved, I used pseudonyms for each principal, and for the most sensitive of stories I do not identify the principals by pseudonym. To further protect their confidentiality, I do not identify principals by school in Table 1. Protecting the anonymity of the participants is an essential ethical Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 227 platform of this study. Additionally, concealing specific school context positions social justice as possible in every school for every child, not as possible only in certain places. However, I will give information about each of the principals’ backgrounds and how they developed their ideas of social justice. Principal Eli Principal Eli came from a family that owned local community-oriented grocery stores. This was a major influence in his life and instilled a value of connecting, being active, and contributing to the community. Eli ran this family grocery business for 15 years. He taught 8 years of high school history and then left teaching to operate the family grocery business. He took over running the business from his parents. This grocery business was an active part of the community in the neighborhood where he grew up and currently lives. He was encouraged to think about school administration by faculty members at a local university. After selling his business he became a prin- cipal. Principal Eli attributed his orientation to do social justice work to the running of a small community-oriented and community-involved business and to the political climate of growing up in the 1960s and 1970s. He left the grocery business to become an assistant principal for 2 years and then moved into a head principalship. Principal Eli is in his early 50s. 228 Educational Administration Quarterly TABLE 1 School Demographic Information Students in Students in Students Staff of School Total Special Povertyb of Color Color School Level Students Educationa (%) (%) (%) (%) A High 375 20 90 99 67 B High 132 23 35 34 15 C Middle 450 25 47 49 13 D Middle 425 22 40 35 10 E Elementary 380 14 40 53 8 F Elementary 360 6 25 38 5 G Elementary 290 8 8 34 15 a. Students in special education are students in the school with Individual Education Plans, meeting Individual With Disabilities Education Act disability criteria. This does not include students whose Individual Education Plans is only for speech and language. b. Students in poverty are students who are qualified to receive free and reduced-cost lunch. Principal Taylor Principal Taylor fled Vietnam with her family after the Vietnam War. Fleeing Vietnam meant that her family left everything—other family, money, possessions, and community status. She explained that her parents did this to give their “children a better life and a better education.” She asserted that her commitment to social justice came from her parents, the Catholic Church, and her experience leaving Vietnam. These forces taught her “to do the right thing . . . that we’re not here just for our- selves but for the good of everyone . . . [and] the whole idea of treating people with kindness and dignity.” Before becoming a principal, Taylor worked as a school counselor for 3 years. That experience cemented her need to do equity and justice work as a school administrator. She is in her early 30s and was in her 3rd year as principal during this research. Principal Dale Principal Dale is now in his mid-50s and has been a principal for 16 years. He shared that he began developing his commitment to justice as a young person. His family was a major influence in fostering a sense of fair- ness and fair treatment. His parents instilled in him the notion that “educa- tion was the route to a better life.” Dale recalled thinking and questioning in high school about how and why some students were seen and treated as “misfits.” He talked about his personal interest in history—labor history, Black history, and the relationship between the United States and Japan were examples that helped frame his commitment to equity and justice. That historical perspective combined with the values of fairness for every- body, and growing up in the 1960s and 1970s, built the foundation for his connection to social justice. He taught for 10 years in a variety of positions in middle and high schools, became a talented and gifted coordinator for the school district for 6 years, and then became a principal. Principal Natalie Principal Natalie attributed her commitment to social justice in part to growing up in a rural area with a very close family. Her family was “instrumental in getting Title IX truly followed [at the local high school] . . . always doing these extra church things like going on missions . . . supporting other families like one where a parent was dying of cancer. As kids we always saw that you are a part of something bigger than yourself.” Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 229 She also attributed hating high school and feeling ostracized to her con- viction that no child can be allowed to fall through the cracks in schools. Natalie discussed how these experiences and a personal interest in history had influenced her commitment to “leave things better than you came onto them.” She worked as the director for community organizations such as the YMCA and nonprofits that care for people with developmental disabilities, and then she held administrative positions at a technical school. Natalie shared that those experiences continued to shape her commitment to enact social justice. Following those positions, she taught public elementary school physical education for 4 years and high school for 2 years. She became an athletic director and an assistant principal, and had been a head principal for 5 years before this study. Principal Natalie is in her late 40s. Principal Meg Principal Meg, who taught elementary school in a large urban area for 4 years, indicated that her commitment to social justice developed at the end of college and when she started teaching. She spoke about noticing discrimina- tion as she grew up, and developing a sense of fairness, but said she did not feel the need to take action until the beginning of her professional career. She spoke about how studying philosophy as an undergraduate significantly con- tributed to the “logic” she sees in working for equity and justice. In part she connected her commitment to her brother, her cooperating teacher when she student taught, her own personal struggles growing up, and being a White teacher in a Black school with predominantly African American staff. She is in her mid-30s and was a principal for 8 years before this research started. Principal Scott Principal Scott attributed his development of thinking about social jus- tice to the church he attended while growing up. Although he is no longer active, he described the Church of the Brethren as a peace church similar to Mennonites. The church exposed him to issues about the Vietnam War, social activism of the 1960s and 1970s, conscientious objectors, volunteer service workers, refugees, and issues of race. Principal Scott started his educational career as a band instructor, but his schooling began with an engineering degree. He described an agitating moment in his early days of teaching that continued to propel him to do equity work. I started to see all the White kids in jazz band, no African American kids in jazz band, no Black kids in jazz band; you know jazz is essentially invented by Black people and now the Black kids are not included in this particular activity in school. . . . So I started to work harder at it. 230 Educational Administration Quarterly He stated that his wife, family, and friends continually push and moti- vate him to further justice and equity in his school today. He was an assis- tant principal for 3 years and was in the 1st year as a head principal during this study. Principal Scott is in his early 40s. Principal Tracy Principal Tracy, who is in his mid-30s, attributed his commitment to social justice to growing up as a part of an activist family. Ever since he was a young boy, he participated in peace and justice work with his parents and sisters. He stated that “being socially responsible and taking action to create a more just world” was a passion instilled in him by his family. He realized he had talents with children as a high school student, but as an undergradu- ate decided to combine that ability and his drive to do social justice work in the field of education. Before becoming a principal, he taught for 7 years in urban elementary schools with the majority of his experience as a kinder- garten and first-grade teacher. Principal Tracy was never an assistant princi- pal and was a head principal for 3 years before this study began. FINDINGS AND DISCUSSION Findings I begin this Findings section by discussing the ways in which the prin- cipals enacted social justice, followed by the resistance they faced to that work, and conclude with the strategies they developed to sustain their social justice work. It is important to note that the principals provided much more elaborate and intricate responses to the first and second questions. They provided much more synthesized responses to the third research question— the resistance they developed. This is reflected in the presentation of these three aspects of social justice leadership. Ways Principals Enact Social Justice Not only did these principals possess a remarkable commitment to equity and justice, but also under their leadership the schools they led became better educational environments. These leaders enacted their own resistance by (a) raising student achievement, (b) improving school struc- tures, (c) recentering and enhancing staff capacity, and (d) strengthening school culture and community. Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 231 I start this discussion with raising student achievement because this is the core of the needed improvements for marginalized students. I position the next three advancements of these principals’ social justice agenda— improving school structures, recentering and enhancing staff capacity, and strengthening school culture and community—in two ways. First, all three of these advancements toward justice were strategies these principals uti- lized to improve student achievement. Second, whereas improving school structures, recentering staff capacity, and strengthening school culture aided in raising achievement, the principals additionally insisted that these steps or strategies were necessary because they were the moral or right course of action. For example, principals described that they eliminated pullout models of special education or English as a second language (ESL) because they felt it was discriminatory to segregate students in that manner and because they knew the positive impact on achievement inclusive prac- tices would have on all students and, in particular, on previously separated students (Frattura & Capper, in press). Raising student achievement. First, these principals enacted social justice in their schools by raising student achievement. Six of the 7 principals’ schools demonstrated significant improvements in student achievement during their tenure. The 7th principal was in his 1st year as head principal and adequate time had not passed to document changes in achievement. All of the principals felt they had a duty and a “moral obligation” to raise achievement for margin- alized students. Whereas 4 principals discussed their understanding of the cri- tique of state-mandated standardized accountability systems, they still felt the need to see all of their students excel on these assessments, and were not con- tent to measure achievement solely with state test data. In this regard they pro- vided and used both state test data and local assessments.7 An example of increased student achievement came from Principal Tracy. Principal Tracy provided compelling data in terms of student achieve- ment growth. During his 3 years as principal, the students experienced dra- matic improvement on the statewide reading test. Principal Tracy stated that when he arrived only 70% of the students were tested for accountability purposes. This was the case for both state-mandated and locally created assessments. However, 3 years later 98% of students participated in all assessments. When he started, roughly 50% of the students achieved profi- cient or advanced levels; during his tenure this rose to 86%. Moreover, he provided data on dramatic improvements for various marginalized groups of students. These improvements are summarized in Table 2. Principal Tracy noted that these gains in literacy scores on the state test were con- firmed by local assessments as well. 232 Educational Administration Quarterly When Tracy arrived in 2000 the school was put on the state’s prelimi- nary No Child Left Behind list of “Schools in Need of Improvement.” With the achievement gains in every content area on both local and state assess- ments, Principal Tracy’s school moved off the state list of failing schools— evidenced by the dramatic improvement in achievement over 3 years. Principal Tracy was not alone in leading successful efforts to improve achievement. Principal Meg said that “our Latino students went from not being included in state and local assessments to 90% of these students achieving at proficient or advanced levels.” Similarly, Principal Eli pro- vided data that indicated that his school’s African American students had improved from 15% of students achieving passing grades on local and state measures to 45%. He indicated there was “much work left to be done,” but “our kids are achieving better.” Improving school structures. The second strategy these principals used to enact social justice involved changing the structures of their schools. Whereas not every principal restructured her or his school in the same man- ner, each took different steps to improve her or his school structure. Six of the 7 principals led an elimination of pullout and segregated programs at their schools. Principal Dale provided an example of this as he explained some of the changes at his school. He spoke of “two major initiatives to eliminate pullout and segregated programs.” The first initiative centered on “detracking the math program.” In eliminating an ability-tracked math program, Principal Dale noted that the previous lower track and remedial- level classes for math were “populated by poor and minority students.” He said, “We’re trying to provide equity by shifting to heterogeneously [in terms of ability and background characteristics] grouped math instruction.” Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 233 TABLE 2 Statewide Reading Test Student-Achievement Data Category % in 2000 % in 2004 Students tested 70 98 All students, proficient or advanced 50 86 African American students, proficient or advanced 33 78 Asian students, proficient or advanced 47 100 Hispanic students, proficient or advanced 18 100 Special education students, proficient or advanced 13 60 English language learners, proficient or advanced 17 100 Students in poverty, proficient or advanced 40 78 The second initiative involved the “movement to pretty much fully include special education students into the curriculum. We have about 20 to 25% of our kids from special ed. They spend virtually all of their time in a regular education classroom now.” Principal Dale explained that this change “replaced the former service-delivery system where the instruction for the students with special education labels took place only in groups of students with special education labels, outside the regular education classrooms, in resource rooms, or in special education classrooms.” Five of the seven principals discussed their efforts to increase rigor and access to educational opportunities. Principal Natalie stated, “We have more academic rigor infused into the curriculum . . . and we are offering eight ‘advanced’ level classes that were never offered before.” Principal Natalie talked about staff attitudes and how the staff were used to having lower expectation about course content, and with a push for broader offer- ings she also pushed for higher expectations within the courses. She shared, “We used to just want kids to feel good about school, but now they feel good and we have ‘big academics.’” Along with the increase in rigor and opportunities, these principals dis- cussed a need for developing increased accountability for the achievement of all students. Principal Meg explained the state of accountability when she arrived at her school: There were no documentation or achievement records for any of the students learning English. . . . They’re treated so separately and separate isn’t equal so they totally get left out and so we’ll say we’re delivering these special services, but we’re not going to pay attention to whether or not they’re effec- tive. Who monitors this? Nobody is accountable. When I started we had no data on our ELL kids. Principal Meg stated that now every child at her school has “informal portfolios and achievement data recorded at least three times a year.” Local teachers designed the assessments, aligned them with state and local stan- dards, and administered them individually or in small groups. She described how this structural change has affected instruction and achievement: “A wealth of information came from the assessments and this information allowed the teachers to individualize their curriculum and design instruction tailored to the needs of all of their students.” These changes to school structure are not only strategies the principals used to raise achievement but also stand-alone accomplishments of the principals’ enacted resistance to educational inequalities. These principals maintained that enacting this form of resistance to all tracking or segrega- tion models was not only a pedagogical or learning shift but also a moral 234 Educational Administration Quarterly act. They felt it was the right thing to do, not only to pursue raising student achievement but also because they believed that systems that provided sep- arate programs maintained unequal levels of instruction, maintained the marginalization of particular students, and created a situation in which those particular students received an inferior education. These principals’ beliefs directly countered the ideas of deficit thinking (Valencia, 1997). Hence, the changes in structure as a result of their beliefs (e.g., creating het- erogeneous and inclusive programs) positioned traditionally marginalized students’ failure not as their own deficiencies or “fault” but as an inherent result of an unjust system. The powerful combination of the steps they took to improve school structures enacted a strong resistance against the status quo of schooling that transformed their schools to the benefit of all students but in particular marginalized children. Recentering and enhancing staff capacity. The third strategy that these principals used to improve achievement and create more just schools involved strengthening their schools’ staff. In other words, the principals resisted the assumptions that typical teacher education or staff development programs were adequate preparation in substantiating a social justice ori- entation and practices for educators. They sought to increase staff capacity by addressing issues of race, providing ongoing staff development focused on building equity, developing staff investment in social justice, hiring and supervising for justice, and empowering staff. Principal Meg discussed one way she worked to build staff capacity. She shared, “We have open and candid discussions about race. We have spent considerable time learning and investigating Whiteness . . . through book groups, professional development about White privilege, sharing our per- sonal racial autobiographies . . . since most of my staff is White.” She organized and facilitated learning for her staff in the area of ELLs. As a part of a major restructuring effort, her staff needed to gain knowledge, skills, and licensure in working with students learning English. Principal Meg arranged for a university professor who taught in the area of ESL to teach credit-bearing courses after school in the school library. These classes were offered for a number of years. Principal Meg reported, Many of the staff took these classes . . . one custodian, the school clerk, a PE teacher, our art teacher, our music teacher, special education teachers, I think every classroom teacher, a number of assistants, and me, the principal. Through this training eight teachers received certification as ELL teachers. Principal Meg and the other social justice principals enacted resistance to prevailing assumptions about learning and learning environments through Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 235 instituting programs of staff development, hiring, and supervision. They built staffs that possessed not only the pedagogical skills to reach every student, but also a commitment to equity. Principal Natalie discussed how this commitment within her staff has changed. In the past staff were saying, “We’ve got a great place here and if they don’t make it here, that’s their damn problem.” . . . Now they’re saying, “Hey we’ve got this curriculum, we’ve got this and this support for them, they’re still not making it, what else can I do to change?” Additionally these principals were committed to empowering their staffs. Staff members were given professional freedom, valued as people, and had a greater say in the running of the school. In a newspaper article on Principal Eli and his leadership, staff members are quoted as saying, “Eli is so open and straight forward that it makes you want to be part of the system. A traditional principal tells you exactly what to do, and most of the time you don’t even know what’s going on.” In speaking, Principal Eli exuded trust and respect for his staff. These principals also led their staffs in an examination of issues of race, existing injustice, and historical inequity as related to schools and learning. The principals shared that they supported both symbolically and with the resources at their disposal staff growth and learning that focused on equity. Strengthening school culture and community. The final way these prin- cipals enacted social justice involved strengthening the school culture and community. The principals reported that they worked to create a warm and welcoming school climate and how they reached out to the community and to marginalized families. Principal Eli shared an illustration of how he enacted this resistance by building relationships with students. He stated sadly, “When I came here, it was a depressing, out-of-control ‘ghetto’ high school—fights, tardiness, absence from school, to a certain degree a stereotypical bad ghetto high school.” He continued, It’s night-and-day different . . . Where you have teams of teachers that know all the kids, or a lot of kids, and knowing them allows you to have a rela- tionship with them . . . you develop relationship so they buy into better behavior. So if there’s a kid, we have some rough kids, you know exposed to bad stuff out there, you want to keep it out of the school . . . gang stuff, hor- rible stuff, or somebody beats somebody up, but you have a relationship with that kid. You know 9 out of 10 times you’d be able to stop that behavior, I mean with relationships you can. 236 Educational Administration Quarterly Principal Eli described that the school now experiences fewer fights and fewer false fire alarms. Students tell staff they feel safer, and new students reported that they felt safer there than at their previous schools. He made the point that to create a warmer and safer climate the key was to “make people feel good about themselves, to build relationships with staff and students, and to be visible.” Principal Dale started developing a warmer climate by changing the way school personnel greeted families. He stated, In the past many parents were greeted not as warmly. The way the school welcomes parents can make a big difference. We worked to change that and you can see and feel the difference. Parents and community members com- mented on the change, but more importantly, you see more parents, and you hear in their tone that they feel respected. Principal Tracy discussed his work with staff and community members as well: [Working together, we] physically transformed the inside and outside of the school . . . so that every hallway and entranceway was bursting with beauti- ful children’s art . . . and creating a beautiful, vibrant playground that dra- matically changed the nature and time of recess. . . . Students and community were involved in developing and maintaining the environment; they felt con- nected, they took responsibility for the school. Principal Meg described her school’s efforts to reach out specifically to marginalized families that resulted in a change from having “only two Latino parents officially serving on school committees” to a program that involved consistently “more than 30 Latino parents in official” school organizations. By resisting the historic disconnect between marginalized families and schools, the social justice–oriented principals in this study worked to create warm and welcoming school climates and also reached out to the commu- nity and in particular to disenfranchised families. Not only did the improved school climate and closer connections to the community affect student achievement, but also this form of resistance served to challenge and begin to transform the White, middle-class assumptions regarding students, families, and communities that permeate public schools across the country. For example, these principals reported not only that greater numbers of marginalized families participated in their schools, but also that the school staff began to understand, construct, seek, and value participation from families in ways other than the traditional parent-teacher organizations, Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 237 conferences, field trips, open houses, and fundraisers. The schools led by the social justice–oriented principals created diverse entry points including ethnic parent meetings, multilanguage forums and family communication, and culturally relevant school events. In summary, the empirical data from these principals gives meaning to how principals enact social justice in their school settings. This work helped make sense of what these principals introduced and accomplished in their schools that sought to displace (e.g., Fine, 1994) the traditional norms informing public school leadership. These norms have maintained power and privilege for certain groups of people and marginalized students based on race, class, disability, sexual orientation, language, gender, family structure, and neigh- borhood. It is clear that these principals made significant accomplishments in challenging these norms and assumptions and advancing justice. The Resistance Principals Faced in Their Social Justice Work “I have yet to experience a day without enormous barriers to this work,” commented one principal when asked about the pressures he faced in try- ing to enact his social justice agenda. The principals working to enact social justice met formidable resistance to their efforts. This section includes empirical data that addressed the second guiding research question: What resistance do social justice–driven principals face in their justice work? They faced resistance from within and outside of their schools and com- munities. I will discuss the resistance from within the school and immedi- ate community separately from resistance from the district and beyond. This section of the findings will conclude with data about how this resis- tance resulted in significant consequences to these principals. Within the school and immediate community. While advancing justice, these principals met resistance within their own schools and communities. They described that they felt this resistance coming directly from the demands of the principalship, the momentum of the status quo, obstructive staff attitudes and beliefs, and insular and privileged parental expectations. The daily requirements of what is described as a “nearly impossible” (Scheurich & Skrla, 2003) job, combined with a personal belief that they can and must quickly create just schools, produced serious resistance for these leaders. Principal Scott provided a clear example of the job of princi- pal itself constituting resistance to enacting social justice. Well, if you have a job that the expectation is that it takes 11 hours a day and you still can’t do it all, you don’t have the luxury of sitting down and having 238 Educational Administration Quarterly this conversation [about the ethnocentric social studies curriculum] even if you know that the conversation is necessary. I mean to sit down and have that conversation would require me to neglect my family, neglect my health, fall behind on necessary paperwork, not do any evaluations of any other teachers, ignore a bunch of student discipline, probably skip some truancy confer- ences, be late mailing things. All kinds of things fall apart every time you want to dig in on a problem. In addition to the demands of the position Principal Natalie conveyed the pervasive sentiment by her staff who took comfort in keeping the status quo. When I arrived at the school, the prevailing sentiment was, “It’s worked this way for 32 years and you’re coming in here and changing us? You want us to have academic rigor, you want us to make decisions, you want us to take responsibility for kids not learning, we’ve never had to do that before.” The principals felt that various teachers or groups of staff members held attitudes and beliefs that proved to be resistance to their work. Principal Dale discussed that he faced staff whose attitudes provided such resistance to his social justice agenda because they did not match the direction in which he guided the school. He stated, “There are some staff who feel that having special ed. kids in the classroom disrupts the other kids. They don’t want challenging behaviors or students who really struggle academically in their classroom.” He saw that this belief “constantly contributed to seeing students with special education labels as marginal and even second-class members of the classroom.” Principal Tracy explained the resistance he experienced from staff and middle-class White parents: There’s a fair amount of pressure to look at things in a certain way. They did- n’t necessarily want an inclusive program, didn’t want to think about creat- ing a different math program. . . . There was this nostalgic feeling, that “if-we-only-had-those-good-students-again” mentality, and what that meant was “if we only had all White middle-class students again, the way it used to be,” a lot of resistance to doing things differently, to looking at our need to change, to being reflective, to planning together. . . . So there was a fair amount of resistance I felt from that. Not everyone, but certain staff and parents were really resistant in that way. Each of these principals faced resistance from within her or his school and local community. This resistance took different forms from school to school but the place of daily work was an ongoing source of struggle and Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 239 resistance. Continuing “outward” from the school and immediate commu- nity, the principals discussed resistance from school district personnel and myriad expectations and assumptions regarding their appropriate roles as education leaders. In the district and beyond. The principals faced resistance from within and beyond their school districts. The principals discussed how resistance from their district and beyond came from unsupportive central office administra- tors, a formidable bureaucracy, prosaic colleagues, a lack of resources, harm- ful state and federal regulations, and uninspired administrator preparation. Meeting resistance from these sources left the principals feeling iso- lated, without models of how to do their social justice work, in a system not designed to support them, and working with and for people who did not share or value their social justice commitment.8 These principals for social justice faced these various types of resistance both within and beyond the district; examples directly from the interview data follow. One principal felt the system itself did not promote equity and justice: The culture of bureaucracy is not set up to support this; reporting structures are very confusing, very blurred, You don’t know who you report to, who has got the power over you, and they all give you directives. . . . I’m required to go to a lot of meetings out of the building. . . . [We’re expected] to have better bulletin boards, better minutes of meetings, more meetings, that kind of stuff. . . . You run into bureaucrats who tell you, you can’t do things . . . you need to have this form on yellow not blue paper. . . . It’s about compliance with the bureaucracy, not about really reaching every kid. In addition, all of the principals stated that they experienced resistance from specific administrators in the central office. One principal shared a painful story about an ongoing issue regarding keeping a student with sig- nificant special needs at his home school and in the regular classroom. Whereas the principal and staff were extremely challenged by the child’s disability, they advocated for the child to remain with them because they felt this student was making progress: Regarding a very difficult situation with a student, a decision was made [to remove the child from our school] without my knowledge. The district com- municated with the parent without my knowledge. . . . The decision came to me via the teacher, via the parent. I was horrified. I actually told the teacher that “No this was not the decision. I’m sure it’s not, I had no knowledge of it.” I called the special ed. coordinator, yes that’s exactly what happened— I felt very, very undermined. 240 Educational Administration Quarterly Another principal shared perceptions of other principals’ commitment and drive: Some colleagues just don’t have any drive in this [equity and justice]. That’s not why they’re a principal. Take [name of principal], that’s not why he’s doing this job. He’s not in it for equity or social justice or educating all kids. He doesn’t even seem to understand what equity and social justice mean in schools. I’m not really sure why he does this . . . that could be [the resistance I face] too, that you sit around in a principals’ meeting and 30 of us are there and maybe only 2 people are having the emotional struggle of trying to pro- mote a social justice agenda . . . and then you see so many people who, who don’t care and whose agenda items suck up weight, suck up your time. The principals discussed a lack of resources as another way they faced resistance to their social justice work. Principal Scott discussed his frustration with this problem. The school district faced serious budget cuts for many years in a row, and eventually his school lost its assistant principal. He felt an enor- mous barrier to his equity work was “how to accomplish the same amount of work with one less person.” He continued about the need for more resources: The amount of money that we’re working with is a barrier, but that’s a bar- rier to lots of things. It’s a barrier to equity because equity is expensive. Teaching kids who don’t have resources at home costs more money than teaching middle-class kids. These principals also cited specific regulations placed on them by their state and the federal government that acted as resistance to their efforts to enact social justice. Principal Meg stated, The state statutes written for English language learners specifically are incred- ibly marginalizing and racist in how they’re funded and how they force pro- gramming to be. They only reimburse school districts something like 20 cents on the dollar for services. And if I wanted to have a two-way bilingual program, which research says is the best kind of program; I would actually have to get the ELL parents to sign a form denying ELL services for their kids in order for their kids to be in a two-way bilingual program. How stupid. Tell me that’s not confusing for ELL parents—they have to deny services in order to get the best kind. Of course that has funding consequences as well. So, that [state regulations] would be another barrier, talk about system problems; it’s not just our district, it’s the state system, it’s the Title I system from the feds. A final way the principals in the study experienced resistance is through uninspiring preparation programs. All of the principals agreed with the sen- timent that their preparation programs did not prepare or aid in their social justice work. One principal shared, Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 241 In terms of equity or justice, I haven’t learned much at all. I remember sitting in my administrative preparation classes, at one of the best administrative preparation programs in the country, and looking around thinking, there are people here I know can’t do the work that needs to be done because they’re not interested, they don’t get it. The program needs to make them understand that this [leading for equity and justice] is part of their job . . . but I never got that feeling in my program. Dealing with race, disability, ELL, etc. were not a priority. If leading for social justice wasn’t a part of you when you entered, you weren’t going to learn it in the ed. admin. program. These principals discussed their experiences with the resistance they encountered as they sought to enact justice and equity. These experiences addressed the second research question. Additionally they described the consequences and effects of this resistance. Consequences of the resistance on the principals. The resistance these prin- cipals faced from their positions, their staff, the community, the school dis- trict, and beyond posed serious consequences for the leaders in this study. They described two consequences of facing this resistance: 1. a great personal toll and 2. a persistent sense of discouragement. The principals described how the personal toll they felt took physical, emo- tional, and mental forms. This toll repeatedly had serious implications on their emotional and physical well-being. One principal described this toll: I was so frustrated by the fact I couldn’t change things fast enough . . . that really ate me up physically and emotionally. . . . When all these pressures came together, and it [the school] wasn’t better, it just drove me crazy. I do not say crazy lightly. I do not mean crazy like it was funny or I was being wacky. . . . To give you an example, there were periods of months when I threw up every morning. There were periods of time when every day I could- n’t help but cry alone in my office. . . . There was a huge toll on who I was [starting to cry]. I had trouble sleeping. At school I was myself, I faked it, but outside of school, I wasn’t myself. Another principal shared the toll from the resistance she faced: It “tears away at your soul. It beats you down and makes you depressed. . . . It didn’t change my vision, but I feel more defeated, like I’m never going to get there.” Another principal shared that the toll she experienced from resistance to social justice “does wear on you as a leader.” She continued, There’s so much pressure that there are times that I feel, gosh, it would be so much easier [laughs] to just turn my back on this, but then it’s the conscience 242 Educational Administration Quarterly that eats at you and the passion of why you actually wanted to do this in the first place and I always come back to that, and I never have been able to let that go, so the battles, you still fight the battles, but it definitely is wearing me down. . . . I’m tired mentally and physically [beginning to cry]. . . . I knew it would be difficult. I didn’t know that it would be devastating. Another principal explained that working 65 to 80 hours a week is “like basic training in the army. You are beat down over and over. . . . My health is being jeopardized.” This principal continued, The job really consumes my thinking. Even when you’re not working, your mind is continually going, it never stops. . . . [Many nights] I wake up at 3 in the morning in a cold sweat because I can’t stop thinking about all the things that need to be done. One principal described some of the physical aspects of the toll he felt: I probably had a 70- to 80-pound weight swing, I lost 20 pounds in a month and I’d gain it back over a few, and then I’d lose it and gain it back. I’m not a nutritionist, but that doesn’t strike me as particularly healthy. . . . It [the resistance I faced] had a huge impact, a toll on my body and on my spirit. That was really sad. I started drinking [alcohol] more than I should. I saw a therapist. I took medicine. . . . There was a lot of toll on who I was. Another principal discussed a sense of persistent discouragement: This stuff [creating a more just school] is easier said than done, I mean I have to tell you how hard it is. We try, but we’re so far away from where I think we need to be. That’s why I get discouraged. . . . It gets to be too much, and I get discouraged. . . . I think, man I’m an F-up, I’m no good at anything. . . . Why do I get discouraged? Because you care, you care and you try and you do and then you run up against the bureaucrats who tell you you can’t do things, or you run up against a society that sometimes it’s so unjust that whatever you do, you’re not going to change it. You feel like what you’re doing is futile. These principals were descriptive about the resistance they faced as well as the consequences that resistance had on them as individuals. In order not to be completely overwhelmed and worn down by this resistance, these social justice principals developed their own strategies to deal with these consequences as well as the resistance they faced. The Strategies Principals Developed to Sustain Social Justice Work Little has been written about the strategies principals use to sustain themselves. For the principals in this study, developing this type of resistance Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 243 proved essential to advancing social justice in the face of ongoing resis- tance. These leaders shared how they sustained themselves both profes- sionally and personally to continue with their social justice work. These social justice principals created and used two kinds of strategies as a means of developing their own resistance: proactive and coping. Proactive strategies. The findings suggest that the principals in this study relied on proactive strategies to enable them professionally to con- tinue their work toward social justice. These strategies involved approach- ing the daily work of the principalship differently and examining the position to keep the overwhelming scope as well as barriers manageable. The principals developed and used different proactive strategies. These strategies included communicating purposefully and authentically, devel- oping a supportive administrative network, working together for change, keeping their eyes on the prize, prioritizing their work, engaging in profes- sional learning, and building relationships. The principals described that using purposeful and authentic communi- cation created some momentum in the direction of social justice, reaffirmed the principals’ beliefs to those around them, and helped these principals feel that even though a change may be slow they did something by speaking their truth. Principal Natalie described this strategy in working with staff conflicts or staff resistance. I deal with that person, I deal with this individual that’s out there on the fringes and say, “This is where I’m at, this is what I need for you, I’m sorry if you are upset with me, but for a school focus this is what has to happen” and we just keep having the conversation. I said, “You can be mad at me, you can tell me anything you want to tell me, but we have to have the conversation. You can’t go off to someone else and say ‘Natalie is not supporting me’ or whatever. You’ve got to come to me and tell me that so we can work together.” Developing supportive networks provided opportunities to share ideas, emotional support, encouragement, and assistance in problem solving. Principal Eli shared, “You have to find people in the bureaucracy who share your ideas. . . . There’s a few, not many.” Principal Natalie explained the support her network offered: I need to be around people that are doing my same job, hearing what they’re going through and saying maybe I can help you with this or maybe you can help me with this, you know that whole feeling of I’m not alone in the world. Whereas many of these principals set out to create more democratic schools and, as discussed previously, created systems that empowered staff, 244 Educational Administration Quarterly using these democratic structures then became a strategy for overcoming the resistance they faced to do equity work. Principal Tracy discussed how shared decision making became a strat- egy to overcome barriers. Our representative staff group gave people ownership in big decisions. And while it was always a struggle for me trusting the process, I never overturned a decision of that group. So, when people complained or felt frustrated, everyone knew it was a collective decision. It changed the sentiment from “the administration is screwing things up” to “this was our decision, we have to make it work.” . . . It has helped the school but also helped me in that I wasn’t drowning. Not only did we make good decisions, but I felt less alone, less drained, and more inspired to do this type of work. For Principal Tracy, keeping his eyes on the prize meant keeping equity and justice at the heart of conversation and celebrating success. Principal Tracy stated, Whether it was during the literacy conferences I held with every teacher or discussions about schoolwide discipline or evaluation meetings with individ- ual staff . . . I tried to always bring race, poverty, gender, and disability into our conversations. Even if there wasn’t a decision to be made, I felt like I was making progress, I felt OK with myself, I felt I could keep up this nearly impossible work, if at least the important issues were being talked about, if we were at least acknowledging equity. Principal Meg also summarized the essence of her prioritizing her work strategy: “Over and over I had to evaluate, what is possible now, what can wait, what can I give to someone else, and what do I personally need to do to not go crazy.” In addition to communicating purposefully and authentically, develop- ing a supportive network, working together for change, keeping their eyes on the prize, and prioritizing their work, ongoing learning helped these leaders better enact their agenda in the face of resistance. This professional learning was focused on the needs of their schools in combination with what they felt were their personal limitations. One principal shared, “The book study groups, the learning we do as a staff, really helped me with some of the stress I feel as far as, am I competent to do this?” All of the principals stated that building relationship was a key strategy they used as a way to enact justice in the face of resistance. Principal Eli emphati- cally discussed building relationships as a strategy to accomplish this: [With staff] I think that [relationships are] really important, you’ve got to make people feel good about themselves. There’s that day-to-day stuff, Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 245 speaking to people, knowing their names, smiling at them, knowing enough about them personally to ask questions about their personal life. That’s really important. It’s got to be you, it’s got to be authentic, you can’t bullshit people, you can’t . . . those relationship go a long way. Not only do you get to know and understand each other, but it is like money in the bank. At some point you are going to have to cash in, and the more you have in the bank the easier it will be. Not that I am insincere about the relationships, but down the road they help you do the big, important, equity stuff. These proactive strategies created time, emotional space, and necessary support to continue their equity and justice work. In a sense they reinvented key parts of their jobs to emphasize their social justice focus. The principals did not believe that these strategies made their work easy. They also did not believe that these proactive strategies alone were enough to sustain them in their quest for social justice as educational leaders. Additionally, they were purposeful about using coping strategies for their lives outside of school. Coping strategies. In addition to proactive strategies the principals identi- fied coping strategies that helped them continue to advance social justice in the face of countervailing pressures. I define coping strategies as strategies that allowed the principals to generally get through the day, week, or school year. These strategies did not necessarily help them with their daily principal work, but included ways the principals sustained and nourished themselves. They identified their coping strategies as prioritizing their life outside of school, utilizing mindful diversions, engaging in regular physical activity, providing for others, and employing potentially self-destructive behaviors. These leaders worked incredibly long hours, but they learned to pur- posefully set aside time not to work or scheduled time with family and friends. Principal Natalie shared, [I] try to separate my personal life and professional life; it’s a huge strategy. That means that after 60 or 70 hours of work, I don’t want to talk about work any more. . . . [For example] I will put, like once a month I’ll put on my cal- endar “university” in the afternoon. What that means is if I get through that week and nothing huge has happened and I’ve got everything I need done, I’m going home that afternoon. I feel guilty about it, but not guilty enough not to do it [laughs]. Principal Eli discussed the mindful diversions he used to keep himself sane. Commenting on what these included for him, he stated, “It’s every- thing, how you live your life. . . . I eat right, I cook with my wife, I like lis- tening to jazz music, I go to jazz clubs to clear my mind. . . . I read for me, not for school, but not enough.” 246 Educational Administration Quarterly Principal Meg shared her strategy of carving out time weekly for physi- cal activity. She explained that she takes, “yoga weekly, [and goes] running probably three to four times a week. I run with my sister-in-law, I run with staff members, I run with district people.” The principals also discussed how engaging in service and doing tangi- ble things for other people helped them continue this work. The combina- tion of accomplishing something tangible and the feeling of helping someone else made this coping strategy work for these principals. Principal Natalie explained, We mow lawns for people, we make sure that they have what they need, most of our neighbors are over 80 years old, and those things make me feel like I’ve done something. Not only the work at my school, which I don’t feel some days is satisfying, or I’ve done anything right. When I get home and I’m able to do something to make someone else happier or make their life easier, I walk around the block, clean up the side, the side of the road every damn night I’m able to get out there. That’s probably twice a week I get out and clean up the road for 3 miles and things like that, that are tangible and I can see and, and not having to wait 8 years so once a kid graduates and tells me they learned something. I can see it and that’s important. . . . I can do this, I can mow your lawn and I can help you pack, I can make you a cake, I can do stuff that makes you feel better and makes me feel better in return. Finally, the principals discussed strategies that they employed that included potentially harmful behaviors, which they purposefully used while facing tremendous resistance. In discussing how they dealt with the magni- tude of pressure, they provided responses such as, “I work more hours,” “I worked longer,” “I work harder.” Many of these principals stated that the normal workweek consisted of 65 to 80 work hours. In that case working more hours meant an even longer week of upwards of 90 hours. Three of the principals discussed using alcohol as a coping strategy. They shared about the tendency to drink alcohol as a way to feel alive and to cope with the foreboding resistance they experienced. One principal shared, “I was definitely heading down the alcoholic path fast. . . . I mean I started drinking more than I should. I just needed the inner turmoil to ease up, and I needed to feel funny and full of life again.” These principals committed to social justice in this study developed and used a variety of coping strategies to keep advancing this work. These strategies allowed them to help maintain their personal sanity and helped clear their minds from the struggles at school. These principals combined personal coping strategies that helped make them “feel whole” and helped “maintain some semblance of sanity” with the previously discussed proactive strategies. It is important to note that there was a great amount of personal Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 247 sacrifice in this work. Whereas turning to alcohol (or even working harder) might seem like an escape, it was a way for them to “numb” the oppressive reality they were experiencing. In other words, in addition to using strate- gies they were giving to the point where their own well-being was sec- ondary to the well-being of others. They would rather self-destruct than see their marginalized students be destroyed? In sum, the 7 principals developed and used both coping and proactive strategies to advance social justice in the face of countervailing pressures. They attributed their success in making their schools more equitable at least in part to the strategies they developed. Toward a Theory of Social Justice Leadership These principals provided compelling data about their experiences lead- ing for social justice. Through the analysis of their experiences, it can be understood that they went to great lengths to enact social justice and demonstrated success in that area. It is also clear that in their efforts to cre- ate more equitable and just schools, they faced formidable resistance. To continue enacting social justice, these leaders shared specific strategies they developed to sustain themselves both professionally and personally. In adding to the growing body of literature on leadership for social justice, the experiences these principals described can be understood as a three pronged framework of resistance: 1. the resistance principals enact against historic marginalization of particu- lar students, 2. the resistance principals face as a result of their social justice agenda, and 3. the resistance principals develop to sustain their social justice agenda in the face of resistance. The principals in this study described specific ways that they each enacted resistance. They described in detail the resistance they faced and the toll that resistance had on them. They were clear about the resistance they developed that aided them in continuing their social justice work. These leaders were steadfast advocates for social justice and paid a high price for that work. They purposefully took steps in professional and personal self- care to keep the toll and the formidable resistance they faced at bay. In doing so, they made significant accomplishments in creating more just schools. Whereas this initial study sheds light on principals’ leadership for social justice, future research is needed in a number of additional areas in working 248 Educational Administration Quarterly toward a theory of social justice leadership. Areas for further research could involve an expansion of the current study to include rural, suburban, and more racially diverse leaders; further investigation into the critical leader- ship traits these leaders described as salient to their ability to enact justice; a deeper look at social justice leaders to include various stakeholder per- spectives and the gritty experiences of social justice leadership; a purpose- ful examination of the toll on social justice leaders; investigation of the change process in social justice work in schools; and examination and evaluation of an equity focus of administrator-preparation programs. Addressing these research topics will shed further light on social justice educational leadership. Although there are numerous implications for practice from this study, most of which can be inferred from the data and findings presented above, I have chosen to focus specifically on implications for administrator- preparation programs. The graduate experience in educational leadership can have a significant impact on the development and cultivation of social justice leaders in education. Implications for Preparation In light of both the literature attesting to the lack of focus on equity issues within administrator-preparation programs (Brown, 2004; Bell et al., 2002; Dantley, 2002; Lyman & Villani, 2002; Mackinnon, 2000; Marshall, 2004a; Rapp, 2002; Rusch, 2004; Solomon, 2002) and the data from this study reaf- firming that gap, implications for administrator preparation become critical to this work. In wrestling with the data from this study I have come to a number of salient conclusions about administrator preparation. The principals in this study felt that their preparation programs did not assist them in their ability to lead for social justice. However, the growing discussion on how to prepare leaders for social justice (Brown, 2004; Marshall, 2004b; Parker et al., 2005; Shoho, 2006; Tillman, Brown, Campbell-Jones, & Gonzalez, 2006), is moving the field in a direction that may prepare more leaders who are both capable and driven to do this work. I see the implications for preparation from this work as adding to that conversation and do not pretend that those shared here are definitive. I rec- ognize that preparing social justice leaders is complex and multidimen- sional, and cannot be seen as a prescribed list of tasks merely to check off. When taken holistically, these findings suggest that preparation programs need to prepare social justice leaders to both enact and develop resistance in the face of significant barriers. Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 249 Developing the Capacity to Enact Resistance Marginalized students do not receive the education they deserve unless purposeful steps are taken to change schools on their behalf with both equity and justice consciously in mind. Similarly, developing the capacity to enact resistance is paramount in educational leadership-preparation programs. Administrators must be at the front of the line in transforming schools into more equitable and just places. With this social justice purpose clearly in mind, enacting resistance requires that future administrators develop a reflective consciousness centered on social justice and a broader knowledge and skill base. Developing reflective consciousness contains four components that can be marshaled to enact resistance and lead toward social justice: 1. “learning to believe the dream is possible” (Scheurich & Skrla, 2003, p. 9), 2. models of equity and justice in practice, 3. deepening administrators’ knowledge of self, and 4. “rebellious, oppositional imaginations” (Rapp, 2002, p. 226). To enact the resistance necessary to advance social justice for marginal- ized students, preparation programs need to pass on to students a broader, more relevant knowledge and skill base. Concurring with Marshall (2004a), the complexity of advancing social justice relies on understanding content, language, and the integration of topics not traditionally central to administra- tor preparation. The principals in this study possessed knowledge and skills in the following areas that made advancing social justice possible and should be seen as implications for content in preparation programs. These areas included special education, ELLs, curriculum, differentiation and teaming, using data, presentation skills, race, poverty, working with diverse families, and taking a global perspective. Along with the ability to enact resistance through enhancing reflective consciousness and developing a broader knowl- edge and skills base, future leaders require the skills to develop their own resistance and resilience as they face barriers to social justice. Building a Capacity to Develop Resistance It is irresponsible to prepare leaders to take on enormous challenges and face significant resistance without understandings of how to weather the storms that will result. However, little literature exists (Langer & Boris- Schacter, 2003; Scheurich & Skrla, 2003) on the strategies that principals use to advance social justice in the face of resistance. Using this literature and the strategies from this study, faculty in preparation programs can begin to create a space for the discussion and development of strategies to continue 250 Educational Administration Quarterly to advance justice in the face of resistance. Although the strategies the principals in this study discussed should not be used as a checklist for administrator-preparation programs, they offer a starting place for focusing on leadership skills to deal with, manage, and cope with resistance. Whereas the work of leading for social justice is never easy, the principals in this study stated that they saw more success and felt a reduced personal toll and were somewhat less discouraged once they formulated and adopted strategies, both proactive and coping, to deal with the resistance they faced. Creating a space to wrestle with developing resistance can provide future administrators the opportunity to be a step ahead of the resistance they will face and address proactively issues of burnout that can impact social justice leaders. In sum, reexamining and rethinking preparation programs requires both the will and steadfast commitment on the part of university faculty to center educational leadership on social justice. Graduate preparation programs committed to developing social justice leaders can and do play a major role in helping future administrators develop their abilities to both enact and develop resistance in service of advancing social justice and educating marginalized and indeed all students. A FINAL WORD—“BUT THAT’S JUST GOOD LEADERSHIP” Inspired by Ladson-Billings’s (1995) article entitled “But That’s Just Good Teaching! The Case for Culturally Relevant Pedagogy,” I make a case that the leadership described in this article is more than good leadership. In her article Ladson-Billings described that in sharing her work on culturally relevant pedagogy, the usual response she received was “But that’s just good teaching” (p. 159). Ladson-Billings proposed that the historic norm of what is considered good teaching must be reexamined to understand that teaching that does not serve African American students and other students of color well, cannot be described or understood as good teaching. She asserted that culturally relevant pedagogy is what good teaching should be and must be made available to all children. In a similar experience to what Ladson-Billings (1995) described, while presenting the preliminary findings to graduate classes and at lectures at universities across the country, I without fail received the comment, “what you are describing is good leadership,” or “these principals typify what the literature on leadership describes as good leaders.” I listened and did not agree. In reflecting on these comments, I will articulate some of the dis- tinctions I see between these social justice leaders and what is traditionally seen as “good leadership” in Table 3. I would emphatically argue that social justice leader goes beyond good leadership. Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 251 T A B L E 3 D is ti n ct io n s B et w ee n a G oo d L ea d er a n d a S oc ia l Ju st ic e L ea d er G o o d L ea d er S o ci a l Ju st ic e L ea d er W or ks w it h su bp ub li cs t o co nn ec t w it h co m m un it y P la ce s si gn if ic an t va lu e on d iv er si ty , de ep ly l ea rn s ab ou t an d un de rs ta nd s th at di ve rs it y, an d ex te nd s cu lt ur al r es pe ct S pe ak s of s uc ce ss f or a ll c hi ld re n E nd s se gr eg at ed a nd p ul l- ou t pr og ra m s th at p ro hi bi t bo th e m ot io na l an d ac ad em ic su cc es s fo r m ar gi na li ze d ch il dr en S up po rt s va ri et y of p ro gr am s fo r di ve rs e le ar ne rs S tr en gt he ns c or e te ac hi ng a nd c ur ri cu lu m a nd i ns ur es t ha t di ve rs e st ud en ts h av e ac ce ss t o th at c or e F ac il it at es p ro fe ss io na l de ve lo pm en t in b es t pr ac ti ce s E m be ds p ro fe ss io na l de ve lo pm en t in c ol la bo ra ti ve s tr uc tu re s an d a co nt ex t th at tr ie s to m ak e se ns e of r ac e, cl as s, ge nd er , an d di sa bi li ty B ui ld s co ll ec ti ve v is io n of a g re at s ch oo l K no w s th at s ch oo l ca nn ot b e gr ea t un ti l th e st ud en ts w it h th e gr ea te st s tr ug gl es a re gi ve n th e sa m e ri ch o pp or tu ni ti es b ot h ac ad em ic al ly a nd s oc ia ll y as t he ir m or e pr iv il eg ed p ee rs E m po w er s st af f an d w or ks c ol la bo ra ti ve ly D em an ds t ha t ev er y ch il d w il l be s uc ce ss fu l bu t co ll ab or at iv el y ad dr es se s th e pr ob le m s of h ow t o ac hi ev e th at s uc ce ss N et w or ks a nd b ui ld s co al it io ns S ee ks o ut o th er a ct iv is t ad m in is tr at or s w ho c an a nd w il l su st ai n he r or h im U se s da ta t o un de rs ta nd t he r ea li ti es o f th e sc ho ol S ee s al l da ta t hr ou gh a l en s of e qu it y U nd er st an ds t ha t ch il dr en h av e in di vi du al n ee ds K no w s th at b ui ld in g co m m un it y an d di ff er en ti at io n ar e to ol s to e ns ur e th at a ll st ud en ts a ch ie ve s uc ce ss t og et he r W or ks l on g an d ha rd t o m ak e a gr ea t sc ho ol B ec om es i nt er tw in ed w it h th e li fe , co m m un it y, an d so ul o f th e sc ho ol 252 Social justice in schools has not happened by chance. It takes more than what traditionally has been understood as good leadership to achieve greater equity. To be clear, the leadership described in this article goes beyond what has been seen as good leadership and raises the challenge to recast good leadership as leadership for social justice. Similar to Ladson- Billings (1995) argument for a redefining of “good teaching,” leadership that is not focused on and successful at creating more just and equitable schools for marginalized students is indeed not good leadership. I caution us all to consider that decades of good leadership have created and sanctioned unjust and inequitable schools. The kind of leadership that needs to be defined and discussed as good leadership is the leadership the principals in this study have pioneered, leadership centered on enacting social justice, and leader- ship that creates equitable schools. Social justice leadership is indeed what good leadership should be. The social justice leadership described in this article gives vivid examples of what is possible, what is necessary, and what is good—socially just—leadership. NOTES 1. Fine (1994) further explains that activist research captures at least one of four different strategies: “breaking the silence, denaturalizing what appears so natural, attaching what is to what could be, and engaging in participatory activist research.” This study used a combination of the four strategies Fine described but primarily used the first two. 2. The methodology borrows from the tradition of autoethnography and self-study (Anderson, 1996; Anderson, Herr, & Nehlen, 1994; Anderson & Jones, 2000; Bullough & Pinnegar, 2001; Church, 1995; Cole & Knowles, 2001; Ellis, 1997; Ellis, 2004; Fine, 1994; Graham, 1991; Meneley & Young, 2005; Reed-Danahay, 2001; Tierney, 1998). Autoethnography (Bullough & Pinnegar, 2001;Cole & Knowles, 2001; Ellis, 1997; Ellis, 2004; Meneley &Young, 2005; Reed- Danahay, 2001; Tierney, 1998), autobiography (Church, 1995; Graham, 1991), and reflective practitioners research (Anderson, 1996; Anderson et al., 1994; Anderson & Jones, 2000) are growing in their acceptance and use as modes of inquiry. In fact, the Self-Study Special Interest Group of the American Educational Research Association is one of the largest special interest groups of the association (Bullough & Pinnegar, 2001). 3. In studying social justice leaders, I coded and analyzed the data using the three guiding research questions as a starting place. The deductive analysis (Erickson, 1986; Graue & Walsh, 1997; Strauss & Corbin, 1998) began with selective coding, which Strauss and Corbin describe as “the process of integrating and refining theory” (p. 143). The deductive or selec- tive codes mirrored the three forms of resistance in the conceptual framework. Deductively, I coded the data according to (a) the ways principals enacted social justice, (b) the resistance the principals faced, and (c) the strategies the principals developed. From there I used axial cod- ing, which is “the process of relating categories to subcategories” (Strauss & Corbin, p. 230), to further my analysis of the three forms of resistance. Additionally, I used two additional deductive codes: the principals’ background and the influences on their understanding and calling to enact social justice. Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 253 The inductive analysis began with open coding (Strauss & Corbin, 1998) of information the principals shared that did not fit into the deductive codes. Again, I used axial coding (Strauss & Corbin, 1998) to delve deeper into data that did not fit the initial framework. For example, the toll the resistance had on these leaders that is discussed later in the findings did not fit into the deductive codes. I began by open coding this toll but refined that analysis through the use of axial codes. 4. I kept a field log and use a tape recorder to ensure the reliability of the information. The inter- views were transcribed and coded. Seven principals were studied to provide me with multiple sources of information supporting the validity of the data. I developed themes only when I could triangulate them across the experiences of at least 3 principals. These procedures fit Crowson’s (1993) description of triangulation of data as “the use of multiple sources of data” (p. 188). Clarifying and revisiting ideas with the principals was an attempt to gain a deeper understand- ing of who they are and what they do. Providing my understanding to them of what they said and sharing my analytical thoughts and even transcripts from our interviews made opportunity for ongo- ing discussion, checking, rechecking, and listening. Glesne (1999) refers to this as member checks. I brought the principals together for a group meeting at the conclusion of the study to review and dis- cuss my work. This provided my analysis with their important insight about this group of leaders and the research process. These essential pieces of my methodology maintain the importance of the individual participants and their insights and views in the ongoing work of the study. Giving attention to the principals’ backgrounds and beliefs as well as my own assumption and convictions was essential to this study and to maintaining trustworthiness; Eisenhart and Howe (1992) characterize this as an “alertness to and coherence of prior knowledge” (p. 62). This reflective component about the participants’ perceptions, beliefs, and worldviews was essential to the critical theory underpinnings of this study. 5. The principals were selected for the study based on the following four criteria. The prin- cipals (a) led a public school; (b) possessed a belief that promoting social justice is a driving force behind what brought them to their leadership position; (c) made issues of race, class, gender, disability, sexual orientation, and other historically marginalizing factors central to their advocacy, leadership practice, and vision; and (d) had evidence to show that their work had produced a more just school. 6. Whereas I see this as a limitation of the study and an area for future research, it also demon- strates that social justice and equity work is not and should not be limited to leaders of color. 7. The principals provided anecdotal data as well as scores and charts from state and local testing. The state test data were verified through their state educational agency. 8. Because of the sensitive nature of these types of resistance, to further protect the prin- cipals’ anonymity I will not use even their pseudonyms in this section but only refer to indi- vidual leaders as one principal. REFERENCES Anderson, G. L. (1996). What does practitioner research look like? Teaching and Change, 3(2), 173-206. Anderson, G. L., Herr, K., & Nehlen, A. S. (1994). Studying your own school: An educator’s guide to qualitative practitioner research. Thousand Oaks, CA: Corwin. Anderson, G. L., & Jones, F. (2000). Knowledge generation in educational administration from the inside out: The promise and perils of site-based research. Educational Administration Quarterly, 36, 428-464. 254 Educational Administration Quarterly Bell, G. C., Jones, E. B., & Johnson, J. F. (2002). School reform: Equal expectations on an uneven playing field. Journal of School Leadership, 12, 317-336. Blackmore, J. (2002). Leadership for socially just schooling: More substance and less style in high risk, low trust times? Journal of School Leadership, 12, 198-222. Bogdan, R. C., & Biklen, S. (1998). Qualitative research for education: An introduction to theory and methods. Needham Heights, MA: Allyn & Bacon. Bogotch, I. (2002). Educational leadership and social justice: Practice into theory. Journal of School Leadership, 12, 138-156. Brown, K. M. (2004). Leadership for social justice and equity: Weaving a transformative framework and pedagogy. Educational Administration Quarterly, 40(1), 79-110. Bullough, R. V., & Pinnegar, S. (2001). Guidelines for quality in autobiographical forms of self-study research. Educational Researcher, 30, 13-21. Capper, C. A., & Young, M. (in press). Educational leaders for social justice. New York: Teachers College Press. Carspecken, P. F. (1996). Critical ethnography in educational research: A theoretical and practical guide. London: Routledge. Church, K. (1995). Forbidden narratives: Critical autobiography as social science. Luxembourg: Gordon & Breach. Cole, A. L., & Knowles, J. G. (2000). Researching teaching: Exploring teacher development through reflective inquiry. New York: Allyn & Bacon. Cole, A. L., & Knowles, J. G. (2001). Lives in context: The art of life history research. Walnut Creek, CA: Alta Mira. Conrad, C. F., Haworth, J. G., & Millar, S. B. (2001). A positioned subject approach to inquiry. In C. F. Conrad, J. G. Haworth, L. R. Lattuca (Eds.), Qualitative research in higher edu- cation: Expanding perspectives (pp. 203-216). Boston: Pearson. Crowson, R. L. (1993). Qualitative research methods in higher education. In C. Conrad, A. Neumann, J. G. Haworth, & P. Scott (Eds.), Qualitative research in higher education: Experiencing alter- native perspectives and approaches (pp. 167-208). Needham Heights, MA: Ginn. Dantley, M. (2002). Uprooting and replacing positivism, the melting pot, multiculturalism, and other impotent notions in education leadership through an African American perspec- tive. Education and Urban Society, 34, 334-352. Dews, C. L., & Law, C. L. (Eds.). (1995). This fine place so far from home: Voices of acade- mics from the working class. Philadelphia: Temple University Press. Eisenhart, M. A., & Howe, K. R. (1992). Validity in educational research. In M. D. LeCompte, W. L. Millroy, & J. Preissle (Eds.), The handbook of qualitative research in education (pp. 643-680). San Diego, CA: Academic Press. Ellis, C. (1997, November). What counts as scholarship in communication? An autoethno- graphic response. Paper presented at the annual meeting of the National Communication Association, Chicago. Ellis, C. (2004). The ethnographic I: A methodological novel about autoethnography. Walnut Creek, CA: Alta Mira. Erickson, F. (1985). Qualitative methods in research on teaching (Occasional Paper No. 81). East Lansing, MI: Michigan State University, Institute for Research on Teaching. Fine, M. (1994). Dis-stance and other stances: Negotiations of power inside feminist research. In A. Gitlin (Ed.), Power and method: Political activism and educational Research (pp. 13-35). London: Routledge. Franzosa, S. D. (Ed.). (1999). Ordinary lessons: Girlhoods of the 1950s. New York: Peter Lang. Frattura, E., & Capper, C. A. (in press). Leadership for social justice in practice: Integrated comprehensive services (ICS) for all learners. Thousand Oaks, CA: Corwin Press. Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 255 Fullan, M. (1993). Change forces. London: Falmer. Furman, G. C., & Gruenewald, D. A. (2004). Expanding the landscape of social justice: A crit- ical ecological analysis. Educational Administration Quarterly, 40, 49-78. Gewirtz, S. (1998). Conceptualizing social justice in education: Mapping the territory. Journal of Education Policy, 13, 469-484. Glaser, G. B., & Strauss, A. L. (1967). The discovery of grounded theory: Strategies for qual- itative research. Hawthorne, NY: Aldine. Glesne, C. (1999). Becoming qualitative researchers: An introduction (2nd ed.). New York: Longman. Goldfarb, K. P., & Grinberg, J. (2002). Leadership for social justice: Authentic participation in the case of a community center in Caracas, Venezuela. Journal of School Leadership, 12, 157-173. Goodson, I., & Sikes, P. (2001). Life history research in educational settings: Learning from lives. Philadelphia: Open University Press. Graham, R. J. (1991). Reading and writing the self: Autobiography in education and the cur- riculum. New York: Teachers College Press. Graue, M. E., & Walsh, D. J. (1998). Studying children in context: Theories, methods & ethics. Thousand Oaks, CA: Sage. Grogan, M. (Ed.). (2002a). Leadership for social justice [Special issue]. Journal of School Leadership, 12(2). Grogan, M. (Ed.). (2002b). Leadership for social justice: Part II [Special issue]. Journal of School Leadership, 12(3). Jackson, M. (1995). At home in the world. Durham, NC: Duke University Press. Kincheloe, J. L., & McLaren, P. L. (1994). Rethinking critical theory and qualitative research. In M. K. Denzin & Y. S. Lincoln (Eds.), Handbook of qualitative research (pp. 279-313). Thousand Oaks, CA: Sage. Knowles, J. G., Cole, A. L., & Presswood, C. S. (1994). Through preservice teachers’ eyes: Exploring field experiences through narrative and inquiry. New York: Merrill. Ladson-Billings, G. (1995). But that’s just good teaching! The case for culturally relevant ped- agogy. Theory Into Practice, 34(3), 159-165. Langer, S., & Boris-Schacter, S. (2003). Challenging the image of the American principalship. Principal, 83(1), 14-18. Larson, C., & Murtadha, K. (2002). Leadership for social justice. In J. Murphy (Ed.), The edu- cational leadership challenge: Redefining leadership for the 21st century (pp. 134-161). Chicago: University of Chicago Press. Lyman, L. L., & Villani, C. J. (2002). The complexity of poverty: A missing component of educational leadership programs. The Journal of School Leadership, 12, 246-280. MacKinnon, D. (2000). Equity, leadership, and schooling. Exceptionality Education Canada, 10(1-2), 5-21. Marshall, C. (2004a). Social justice challenges to educational administration: Introduction to a special issue. Educational Administration Quarterly, 40, 5-15. Marshall, C. (Ed.). (2004b). Social justice challenges to educational administration [Special issue]. Educational Administration Quarterly, 40(1). Marshall, C., & Ward, M. (2004). “Yes, but . . .”: Education leaders discuss social justice. Journal of School Leadership, 14, 530-563. Maynes, B., & Sarbit, B. (2000). Schooling children living in poverty: Perspectives on social justice. Exceptionality Education Canada, 10(1-2), 37-61. Maxwell, J. A. (1998). Designing a qualitative study. In L. Bickman & D. J. Rog (Eds.), Handbook of applied social research methods (pp. 69-100). Thousand Oaks, CA: Sage. 256 Educational Administration Quarterly Mbilinyi, M. (1989). I’d have been a man: Politics and the labor process in producing personal narratives. In The Personal Narratives Group (Eds.), Interpreting women’s lives: Feminist theory and the personal narratives (pp. 204-227). Bloomington: University of Indiana Press. Meneley, Y., & Young, D. (Eds.). (2005). Autoethnographies: The anthropology of academic practices. Toronto, Canada: Broadview. Oakes, J., Quartz, K. H., Ryan, S., Lipton, M. (2000). Becoming good American schools. Phi Delta Kappan, 81(8), 568-576. Parker, L., Capper, C. A., Dantley, M. E, Cambron-Mccabe, N. H., Gonzalez, M., McKenzie, K., et al. (2005, April). Educating leaders for social justice: What every leader should know and be able to do. Presentation at the meeting of the American Education Research Association, Montreal, Canada. Rapp, D. (2002). Social justice and the importance of rebellious imaginations. Journal of School Leadership, 12(3), 226-245. Reed-Danahay, D. (2001). Autobiography, intimacy and ethnography. In P. Atkinson, A. Coffey, S. Delamont, J. Lofland, & L. Lofland (Eds.), Handbook of ethnography (pp. 407−425). London: Sage. Riester, A. F., Pursch, V., & Skrla, L. (2002). Principals for social justice: Leaders of school success for children from low-income homes. Journal of School Leadership, 12, 281-304. Roman, L., & Apple, M. (1990). Is naturalism a move away from positivism? Materialist and feminist approaches to subjectivity in ethnographic research. In E. Eisner & A. Peshkins (Eds.), Qualitative inquiry in education: The continuing debate (pp. 38-73). New York: Teachers College Press. Rusch, E. A. (2004). Gender and race in leadership preparation: A constrained discourse. Educational Administration Quarterly, 40(1), 16-48. Sapon-Shevin, M. (2003). Inclusion: A matter of social justice. Educational Leadership, 61, 25-28. Scheurich, J. J. (1998). Highly successful and loving, public elementary schools populated mainly by low-SES children of color: Core beliefs and cultural characteristics. Urban Education, 33, 451-491. Scheurich, J., & Skrla, L. (2003). Leadership for equity and excellence: Creating high achievement classrooms, schools, and districts. Thousand Oaks, CA: Corwin. Schoem, D. (Ed.). (1991). Inside separate worlds: Life stories of young Blacks, Jews, and Latinos. Ann Arbor, MI: University of Michigan Press. Shields, C. M. (2004). Dialogic leadership for social justice: Overcoming pathologies of silence. Educational Administration Quarterly, 40, 111-134. Shoho, A. (Ed.). (2006). Preparing leaders for social justice [Special issue]. Journal of Educational Administration, 44(3). Skrla, L., Scheurich, J. J., Garcia, J., & Nolly, G. (2004). Equity audits: A practical leadership tool for developing equitable and excellent schools. Educational Administration Quarterly, 40, 135-163. Solomon, R. P. (2002). School leaders and antiracism: Overcoming pedagogical and political obstacles. Journal of School Leadership, 12, 174-197. Strauss, A. & Corbin, J. M. (1998). Basics of qualitative research: Techniques and theories for developing grounded theory (2nd ed.) Thousand Oaks, CA: Sage. Tierney, W. G. (1998). Life history’s history: Subjects foretold. Qualitative Inquiry, 4(1), 40-70. Tillman, L., Brown, K., Campbell-Jones, F., & Gonzalez, M. L. (2006). Transformative teach- ing for social justice in educational leadership [Special issue]. Journal of School Leadership, 16(2). Theoharis / THEORY OF SOCIAL JUSTICE LEADERSHIP 257 Touchton, D., & Acker-Hocevar, M. (2001, November). Using a lens of social justice to reframe principals’ interviews from high poverty, low performing schools. Paper presented at the annual meeting of the University Council for Educational Administration, Cincinnati, OH. Valencia, R. R. (1997). The evolution of deficit thinking: Educational thought and practice. London: Falmer. Vibert, A., & Portelli, J. (2000). School leadership and critical practice in an elementary school. Exceptionality Education Canada, 10(1-2), 23-36. George Theoharis was an urban principal committed to social justice and now is an assistant professor in educational leadership and inclusive education at Syracuse University, 150 Huntington Hall, Syracuse, NY 13244; e-mail: gtheohar@syr.edu. His research interests include leadership for social justice, principals successful at creating equitable schools, and inclusive schooling. His most recent publication is a 2006 article titled Toward a Framework for Preparing Leaders for Social Justice with Colleen Capper and James Sebastian. 258 Educational Administration Quarterly << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize false /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveEPSInfo true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true /AdobeCorpID-Acrobat /AdobeCorpID-Adobe /AdobeCorpID-Bullet /AdobeCorpID-MinionBd /AdobeCorpID-MinionBdIt /AdobeCorpID-MinionRg /AdobeCorpID-MinionRgIt /AdobeCorpID-MinionSb /AdobeCorpID-MinionSbIt /AdobeCorpID-MyriadBd /AdobeCorpID-MyriadBdIt /AdobeCorpID-MyriadBdScn /AdobeCorpID-MyriadBdScnIt /AdobeCorpID-MyriadBl /AdobeCorpID-MyriadBlIt /AdobeCorpID-MyriadLt /AdobeCorpID-MyriadLtIt /AdobeCorpID-MyriadPkg /AdobeCorpID-MyriadRg /AdobeCorpID-MyriadRgIt /AdobeCorpID-MyriadRgScn /AdobeCorpID-MyriadRgScnIt /AdobeCorpID-MyriadSb /AdobeCorpID-MyriadSbIt /AdobeCorpID-MyriadSbScn /AdobeCorpID-MyriadSbScnIt /AdobeCorpID-PScript /AGaramond-BoldScaps /AGaramond-Italic /AGaramond-Regular /AGaramond-RomanScaps /AGaramond-Semibold /AGaramond-SemiboldItalic /AGar-Special /AkzidenzGroteskBE-Bold /AkzidenzGroteskBE-BoldEx /AkzidenzGroteskBE-BoldExIt /AkzidenzGroteskBE-BoldIt /AkzidenzGroteskBE-Ex /AkzidenzGroteskBE-It /AkzidenzGroteskBE-Light /AkzidenzGroteskBE-LightEx /AkzidenzGroteskBE-LightOsF /AkzidenzGroteskBE-Md /AkzidenzGroteskBE-MdEx /AkzidenzGroteskBE-MdIt /AkzidenzGroteskBE-Regular /AkzidenzGroteskBE-Super /AlbertusMT /AlbertusMT-Italic /AlbertusMT-Light /Aldine401BT-BoldA /Aldine401BT-BoldItalicA /Aldine401BT-ItalicA /Aldine401BT-RomanA /Aldus-Italic /Aldus-ItalicOsF /Aldus-Roman /Aldus-RomanSC /AlternateGothicNo2BT-Regular /AmazoneBT-Regular /AmericanTypewriter-Bold /AmericanTypewriter-BoldA /AmericanTypewriter-BoldCond /AmericanTypewriter-BoldCondA /AmericanTypewriter-Cond /AmericanTypewriter-CondA /AmericanTypewriter-Light /AmericanTypewriter-LightA /AmericanTypewriter-LightCond /AmericanTypewriter-LightCondA /AmericanTypewriter-Medium /AmericanTypewriter-MediumA /Anna /AntiqueOlive-Bold /AntiqueOlive-Compact /AntiqueOlive-Italic /AntiqueOlive-Roman /Arkona-Medium /Arkona-Regular /ArrusBT-Black /ArrusBT-BlackItalic /ArrusBT-Bold /ArrusBT-BoldItalic /ArrusBT-Italic /ArrusBT-Roman /AssemblyLightSSK /AvantGarde-Book /AvantGarde-BookOblique /AvantGarde-CondBold /AvantGarde-CondBook /AvantGarde-CondDemi /AvantGarde-CondMedium /AvantGarde-Demi /AvantGarde-DemiOblique /BaileySansITC-Bold /BaileySansITC-BoldItalic /BaileySansITC-Book /BaileySansITC-BookItalic /BakerSignetBT-Roman /BaskervilleBE-Italic /BaskervilleBE-Medium /BaskervilleBE-MediumItalic /BaskervilleBE-Regular /Baskerville-Bold /BaskervilleBT-Bold /BaskervilleBT-BoldItalic /BaskervilleBT-Italic /BaskervilleBT-Roman /BaskervilleMT /BaskervilleMT-Bold /BaskervilleMT-BoldItalic /BaskervilleMT-Italic /BaskervilleMT-SemiBold /BaskervilleMT-SemiBoldItalic /BaskervilleNo2BT-Bold /BaskervilleNo2BT-BoldItalic /BaskervilleNo2BT-Italic /BaskervilleNo2BT-Roman /Baskerville-Normal-Italic /BauhausITCbyBT-Bold /BauhausITCbyBT-Heavy /BauhausITCbyBT-Light /BauhausITCbyBT-Medium /BellGothic-Black /BellGothic-Bold /Bell-GothicBoldItalicBT /BellGothicBT-Bold /BellGothicBT-Roman /BellGothic-Light /Bembo /Bembo-Bold /Bembo-BoldExpert /Bembo-BoldItalic /Bembo-BoldItalicExpert /Bembo-Expert /Bembo-ExtraBoldItalic /Bembo-Italic /Bembo-ItalicExpert /Bembo-Semibold /Bembo-SemiboldItalic /BenguiatGothicITCbyBT-Bold /BenguiatGothicITCbyBT-BoldItal /BenguiatGothicITCbyBT-Book /BenguiatGothicITCbyBT-BookItal /BenguiatITCbyBT-Bold /BenguiatITCbyBT-BoldItalic /BenguiatITCbyBT-Book /BenguiatITCbyBT-BookItalic /Berkeley-Book /Berkeley-BookItalic /Berling-Bold /Berling-BoldItalic /Berling-Italic /Berling-Roman /BernhardBoldCondensedBT-Regular /BernhardFashionBT-Regular /BernhardModernBT-Bold /BernhardModernBT-BoldItalic /BernhardModernBT-Italic /BernhardModernBT-Roman /BernhardTangoBT-Regular /BickhamScriptMM /BickhamScriptMM-AltI /BickhamScriptMM-AltII /BickhamScriptMM-Beg /BickhamScriptMM-End /BickhamScriptMM-Lig /BickhamScriptMM-Or /BickhamScriptMM-SwCaps /BlockBE-Condensed /BlockBE-ExtraCn /BlockBE-ExtraCnIt /BlockBE-Heavy /BlockBE-Italic /BlockBE-Regular /Bodoni /Bodoni-Bold /Bodoni-BoldItalic /Bodoni-Italic /Bodoni-Poster /Bodoni-PosterCompressed /Bookman-Demi /Bookman-DemiItalic /Bookman-Light /Bookman-LightItalic /Boton-Italic /Boton-Medium /Boton-MediumItalic /Boton-Regular /Boulevard /BroadwayBT-Regular /CaflischScript-Bold /CaflischScript-Regular /Caliban /CaravanLH-Four /CaravanLH-One /CaravanLH-Three /CaravanLH-Two /CarminaBT-Bold /CarminaBT-BoldItalic /CarminaBT-Light /CarminaBT-LightItalic /CarminaBT-Medium /CarminaBT-MediumItalic /Carta /Caslon224ITCbyBT-Bold /Caslon224ITCbyBT-BoldItalic /Caslon224ITCbyBT-Book /Caslon224ITCbyBT-BookItalic /Caslon540BT-Italic /Caslon540BT-Roman /CaslonBT-Bold /CaslonBT-BoldItalic /CaslonOpenFace /CaslonTwoTwentyFour-Black /CaslonTwoTwentyFour-BlackIt /CaslonTwoTwentyFour-Bold /CaslonTwoTwentyFour-BoldIt /CaslonTwoTwentyFour-Book /CaslonTwoTwentyFour-BookIt /CaslonTwoTwentyFour-Medium /CaslonTwoTwentyFour-MediumIt /CastleT-Bold /CastleT-Book /CaxtonBT-Bold /CaxtonBT-BoldItalic /CaxtonBT-Book /CaxtonBT-BookItalic /CelestiaAntiqua-Ornaments /Centennial-BoldItalicOsF /Centennial-BoldOsF /Centennial-ItalicOsF /Centennial-RomanSC /Century-Bold /Century-BoldItalic /Century-Book /Century-BookItalic /CenturyExpandedBT-Bold /CenturyExpandedBT-BoldItalic /CenturyExpandedBT-Italic /CenturyExpandedBT-Roman /Century-Light /Century-LightItalic /CenturyOldStyle-Bold /CenturyOldStyle-Italic /CenturyOldStyle-Regular /CenturySchoolbookBT-Bold /CenturySchoolbookBT-BoldCond /CenturySchoolbookBT-BoldItalic /CenturySchoolbookBT-Italic /CenturySchoolbookBT-Roman /Century-Ultra /Century-UltraItalic /CheltenhamBT-Bold /CheltenhamBT-BoldCondItalic /CheltenhamBT-BoldExtraCondensed /CheltenhamBT-BoldHeadline /CheltenhamBT-BoldItalic /CheltenhamBT-BoldItalicHeadline /CheltenhamBT-Italic /CheltenhamBT-Roman /CheltenhamITCbyBT-Bold /CheltenhamITCbyBT-BoldItalic /CheltenhamITCbyBT-Book /CheltenhamITCbyBT-BookItalic /Christiana-Bold /Christiana-BoldItalic /Christiana-Italic /Christiana-Medium /Christiana-MediumItalic /Christiana-Regular /Christiana-RegularExpert /Christiana-RegularSC /Clarendon /Clarendon-Bold /Clarendon-Light /ClassicalGaramondBT-Bold /ClassicalGaramondBT-BoldItalic /ClassicalGaramondBT-Italic /ClassicalGaramondBT-Roman /CMB10 /CMBSY10 /CMBSY5 /CMBSY6 /CMBSY7 /CMBSY8 /CMBSY9 /CMBX10 /CMBX12 /CMBX5 /CMBX6 /CMBX7 /CMBX8 /CMBX9 /CMBXSL10 /CMBXTI10 /CMCSC10 /CMCSC8 /CMCSC9 /CMDUNH10 /CMEX10 /CMEX7 /CMEX8 /CMEX9 /CMFF10 /CMFI10 /CMFIB8 /CMINCH /CMITT10 /CMR10 /CMR12 /CMR17 /CMR5 /CMR6 /CMR7 /CMR8 /CMR9 /CMSL10 /CMSL12 /CMSL8 /CMSL9 /CMSLTT10 /CMSS10 /CMSS12 /CMSS17 /CMSS8 /CMSS9 /CMSSBX10 /CMSSDC10 /CMSSI10 /CMSSI12 /CMSSI17 /CMSSI8 /CMSSI9 /CMSSQ8 /CMSSQI8 /CMSY10 /CMSY5 /CMSY6 /CMSY7 /CMSY8 /CMSY9 /CMTCSC10 /CMTEX10 /CMTEX8 /CMTEX9 /CMTI10 /CMTI12 /CMTI7 /CMTI8 /CMTI9 /CMTT10 /CMTT12 /CMTT8 /CMTT9 /CMU10 /CMVTT10 /Cochin /Cochin-Bold /Cochin-BoldItalic /Cochin-Italic /CommonBullets /ConduitITC-Bold /ConduitITC-BoldItalic /ConduitITC-Light /ConduitITC-LightItalic /ConduitITC-Medium /ConduitITC-MediumItalic /CooperBlack /CooperBlack-Italic /CooperBT-Bold /CooperBT-BoldItalic /CooperBT-Light /CooperBT-LightItalic /CopperplateGothicBT-Bold /CopperplateGothicBT-BoldCond /CopperplateGothicBT-Heavy /CopperplateGothicBT-Roman /CopperplateGothicBT-RomanCond /Copperplate-ThirtyThreeBC /Copperplate-ThirtyTwoBC /Coronet-Regular /Courier /Courier-Bold /Courier-BoldOblique /Courier-Oblique /Critter /CS-Special-font /DellaRobbiaBT-Bold /DellaRobbiaBT-Roman /Della-RobbiaItalicBT /Della-RobbiaSCaps /Del-NormalSmallCaps /Delphin-IA /Delphin-IIA /Delta-Bold /Delta-BoldItalic /Delta-Book /Delta-BookItalic /Delta-Light /Delta-LightItalic /Delta-Medium /Delta-MediumItalic /Delta-Outline /DextorD /DextorOutD /DINEngschrift /DINEngschrift-Alternate /DINMittelschrift /DINMittelschrift-Alternate /DINNeuzeitGrotesk-BoldCond /DINNeuzeitGrotesk-Light /Dom-CasItalic /DomCasual /DomCasual-Bold /Dom-CasualBT /Ehrhard-Italic /Ehrhard-Regular /EhrhardSemi-Italic /EhrhardtMT /EhrhardtMT-Italic /EhrhardtMT-SemiBold /EhrhardtMT-SemiBoldItalic /EhrharSemi /ELANGO-IB-A03 /ELANGO-IB-A75 /ELANGO-IB-A99 /ElectraLH-Bold /ElectraLH-BoldCursive /ElectraLH-Cursive /ElectraLH-Regular /ElGreco /EnglischeSchT-Bold /EnglischeSchT-Regu /ErasContour /ErasITCbyBT-Bold /ErasITCbyBT-Book /ErasITCbyBT-Demi /ErasITCbyBT-Light /ErasITCbyBT-Medium /ErasITCbyBT-Ultra /Euclid /Euclid-Bold /Euclid-BoldItalic /EuclidExtra /EuclidExtra-Bold /EuclidFraktur /EuclidFraktur-Bold /Euclid-Italic /EuclidMathOne /EuclidMathOne-Bold /EuclidMathTwo /EuclidMathTwo-Bold /EuclidSymbol /EuclidSymbol-Bold /EuclidSymbol-BoldItalic /EuclidSymbol-Italic /EUEX10 /EUFB10 /EUFB5 /EUFB7 /EUFM10 /EUFM5 /EUFM7 /EURB10 /EURB5 /EURB7 /EURM10 /EURM5 /EURM7 /EuroMono-Bold /EuroMono-BoldItalic /EuroMono-Italic /EuroMono-Regular /EuropeanPi-Four /EuropeanPi-One /EuropeanPi-Three /EuropeanPi-Two /EuroSans-Bold /EuroSans-BoldItalic /EuroSans-Italic /EuroSans-Regular /EuroSerif-Bold /EuroSerif-BoldItalic /EuroSerif-Italic /EuroSerif-Regular /Eurostile /Eurostile-Bold /Eurostile-BoldCondensed /Eurostile-BoldExtendedTwo /Eurostile-BoldOblique /Eurostile-Condensed /Eurostile-Demi /Eurostile-DemiOblique /Eurostile-ExtendedTwo /Eurostile-Oblique /EUSB10 /EUSB5 /EUSB7 /EUSM10 /EUSM5 /EUSM7 /ExPonto-Regular /FairfieldLH-Bold /FairfieldLH-BoldItalic /FairfieldLH-BoldSC /FairfieldLH-CaptionBold /FairfieldLH-CaptionHeavy /FairfieldLH-CaptionLight /FairfieldLH-CaptionMedium /FairfieldLH-Heavy /FairfieldLH-HeavyItalic /FairfieldLH-HeavySC /FairfieldLH-Light /FairfieldLH-LightItalic /FairfieldLH-LightSC /FairfieldLH-Medium /FairfieldLH-MediumItalic /FairfieldLH-MediumSC /FairfieldLH-SwBoldItalicOsF /FairfieldLH-SwHeavyItalicOsF /FairfieldLH-SwLightItalicOsF /FairfieldLH-SwMediumItalicOsF /Fences /Fenice-Bold /Fenice-BoldOblique /FeniceITCbyBT-Bold /FeniceITCbyBT-BoldItalic /FeniceITCbyBT-Regular /FeniceITCbyBT-RegularItalic /Fenice-Light /Fenice-LightOblique /Fenice-Regular /Fenice-RegularOblique /Fenice-Ultra /Fenice-UltraOblique /FlashD-Ligh /Flood /FontanaNDAaOsF /FontanaNDAaOsF-Italic /FontanaNDCcOsF-Semibold /FontanaNDCcOsF-SemiboldIta /FontanaNDEeOsF /FontanaNDEeOsF-Bold /FontanaNDEeOsF-BoldItalic /FontanaNDEeOsF-Light /FontanaNDEeOsF-Semibold /FormalScript421BT-Regular /ForteMT /FrakturBT-Regular /FrankfurterHigD /FranklinGothic-Book /FranklinGothic-BookItal /FranklinGothic-BookOblique /FranklinGothic-Condensed /FranklinGothic-Demi /FranklinGothic-DemiItal /FranklinGothic-DemiOblique /FranklinGothic-Heavy /FranklinGothic-HeavyItal /FranklinGothic-HeavyOblique /FranklinGothicITCbyBT-BookItal /FranklinGothicITCbyBT-Demi /FranklinGothicITCbyBT-DemiItal /FranklinGothicITCbyBT-Heavy /FranklinGothicITCbyBT-HeavyItal /FranklinGothic-Medium /FranklinGothic-MediumItal /FranklinGothic-Roman /Freeform721BT-Bold /Freeform721BT-BoldItalic /Freeform721BT-Italic /Freeform721BT-Roman /FreestyleScrD /FreestyleScript /Freestylescript /FrizQuadrataITCbyBT-Bold /FrizQuadrataITCbyBT-Roman /Frutiger-Black /Frutiger-BlackCn /Frutiger-BlackItalic /Frutiger-Bold /Frutiger-BoldCn /Frutiger-BoldItalic /Frutiger-Cn /Frutiger-ExtraBlackCn /Frutiger-Italic /Frutiger-Light /Frutiger-LightCn /Frutiger-LightItalic /Frutiger-Roman /Frutiger-UltraBlack /Futura /FuturaBlackBT-Regular /Futura-Bold /Futura-BoldOblique /Futura-Book /Futura-BookOblique /FuturaBT-Bold /FuturaBT-BoldCondensed /FuturaBT-BoldCondensedItalic /FuturaBT-BoldItalic /FuturaBT-Book /FuturaBT-BookItalic /FuturaBT-ExtraBlack /FuturaBT-ExtraBlackCondensed /FuturaBT-ExtraBlackCondItalic /FuturaBT-ExtraBlackItalic /FuturaBT-Heavy /FuturaBT-HeavyItalic /FuturaBT-Light /FuturaBT-LightCondensed /FuturaBT-LightItalic /FuturaBT-Medium /FuturaBT-MediumCondensed /FuturaBT-MediumItalic /Futura-Condensed /Futura-CondensedBold /Futura-CondensedBoldOblique /Futura-CondensedExtraBold /Futura-CondensedLight /Futura-CondensedLightOblique /Futura-CondensedOblique /Futura-CondExtraBoldObl /Futura-ExtraBold /Futura-ExtraBoldOblique /Futura-Heavy /Futura-HeavyOblique /Futura-Light /Futura-LightOblique /Futura-Oblique /Galliard-Black /Galliard-BlackItalic /Galliard-Bold /Galliard-BoldItalic /Galliard-Italic /GalliardITCbyBT-Bold /GalliardITCbyBT-BoldItalic /GalliardITCbyBT-Italic /GalliardITCbyBT-Roman /Galliard-Roman /Galliard-Ultra /Galliard-UltraItalic /Garamond-Antiqua /GaramondBE-Bold /GaramondBE-BoldExpert /GaramondBE-BoldOsF /GaramondBE-CnExpert /GaramondBE-Condensed /GaramondBE-CondensedSC /GaramondBE-Italic /GaramondBE-ItalicExpert /GaramondBE-ItalicOsF /GaramondBE-Medium /GaramondBE-MediumCn /GaramondBE-MediumCnExpert /GaramondBE-MediumCnOsF /GaramondBE-MediumExpert /GaramondBE-MediumItalic /GaramondBE-MediumItalicExpert /GaramondBE-MediumItalicOsF /GaramondBE-MediumSC /GaramondBE-Regular /GaramondBE-RegularExpert /GaramondBE-RegularSC /GaramondBE-SwashItalic /Garamond-BoldCondensed /Garamond-BoldCondensedItalic /Garamond-Book /Garamond-BookCondensed /Garamond-BookCondensedItalic /Garamond-BookItalic /Garamond-Halbfett /GaramondITCbyBT-Bold /GaramondITCbyBT-BoldCondensed /GaramondITCbyBT-BoldCondItalic /GaramondITCbyBT-BoldItalic /GaramondITCbyBT-BoldNarrow /GaramondITCbyBT-BoldNarrowItal /GaramondITCbyBT-Book /GaramondITCbyBT-BookCondensed /GaramondITCbyBT-BookCondItalic /GaramondITCbyBT-BookItalic /GaramondITCbyBT-BookNarrow /GaramondITCbyBT-BookNarrowItal /GaramondITCbyBT-Light /GaramondITCbyBT-LightCondensed /GaramondITCbyBT-LightCondItalic /GaramondITCbyBT-LightItalic /GaramondITCbyBT-LightNarrow /GaramondITCbyBT-LightNarrowItal /GaramondITCbyBT-Ultra /GaramondITCbyBT-UltraCondensed /GaramondITCbyBT-UltraCondItalic /GaramondITCbyBT-UltraItalic /Garamond-Kursiv /Garamond-KursivHalbfett /Garamond-Light /Garamond-LightCondensed /Garamond-LightCondensedItalic /Garamond-LightItalic /GaramondNo4CyrTCY-Ligh /GaramondNo4CyrTCY-LighItal /GaramondThree /GaramondThree-Bold /GaramondThree-BoldItalic /GaramondThree-BoldItalicOsF /GaramondThree-BoldSC /GaramondThree-Italic /GaramondThree-ItalicOsF /GaramondThree-SC /GaramondThreeSMSIISpl-Italic /GaramondThreeSMSitalicSpl-Italic /GaramondThreeSMSspl /GaramondThreespl /GaramondThreeSpl-Bold /Garamond-Ultra /Garamond-UltraCondensed /Garamond-UltraCondensedItalic /Garamond-UltraItalic /GarthGraphic /GarthGraphic-Black /GarthGraphic-Bold /GarthGraphic-BoldCondensed /GarthGraphic-BoldItalic /GarthGraphic-Condensed /GarthGraphic-ExtraBold /GarthGraphic-Italic /Geometric231BT-HeavyC /GeometricSlab712BT-BoldA /GeometricSlab712BT-ExtraBoldA /GeometricSlab712BT-LightA /GeometricSlab712BT-LightItalicA /GeometricSlab712BT-MediumA /GeometricSlab712BT-MediumItalA /Giddyup /Giddyup-Thangs /GillSans /GillSans-Bold /GillSans-BoldCondensed /GillSans-BoldExtraCondensed /GillSans-BoldItalic /GillSans-Condensed /GillSans-ExtraBold /GillSans-ExtraBoldDisplay /GillSans-Italic /GillSans-Light /GillSans-LightItalic /GillSans-LightShadowed /GillSans-Shadowed /GillSans-UltraBold /GillSans-UltraBoldCondensed /Gill-Special /Giovanni-Bold /Giovanni-BoldItalic /Giovanni-Book /Giovanni-BookItalic /Gothic-Thirteen /Goudy /Goudy-Bold /Goudy-BoldItalic /GoudyCatalogueBT-Regular /Goudy-ExtraBold /GoudyHandtooledBT-Regular /GoudyHeavyfaceBT-Regular /GoudyHeavyfaceBT-RegularCond /Goudy-Italic /GoudyOldStyleBT-Bold /GoudyOldStyleBT-BoldItalic /GoudyOldStyleBT-ExtraBold /GoudyOldStyleBT-Italic /GoudyOldStyleBT-Roman /GoudySansITCbyBT-Black /GoudySansITCbyBT-BlackItalic /GoudySansITCbyBT-Bold /GoudySansITCbyBT-BoldItalic /GoudySansITCbyBT-Light /GoudySansITCbyBT-LightItalic /GoudySansITCbyBT-Medium /GoudySansITCbyBT-MediumItalic /Helvetica /Helvetica-Black /Helvetica-BlackOblique /Helvetica-Black-SemiBold /Helvetica-Bold /Helvetica-BoldOblique /Helvetica-Compressed /Helvetica-Condensed /Helvetica-Condensed-Black /Helvetica-Condensed-BlackObl /Helvetica-Condensed-Bold /Helvetica-Condensed-BoldObl /Helvetica-Condensed-Light /Helvetica-Condensed-Light-Light /Helvetica-Condensed-LightObl /Helvetica-Condensed-Oblique /Helvetica-Condensed-Thin /Helvetica-ExtraCompressed /Helvetica-Fraction /Helvetica-FractionBold /HelveticaInserat-Roman /HelveticaInserat-Roman-SemiBold /Helvetica-Light /Helvetica-LightOblique /Helvetica-Narrow /Helvetica-Narrow-Bold /Helvetica-Narrow-BoldOblique /Helvetica-Narrow-Oblique /HelveticaNeue-Black /HelveticaNeue-BlackCond /HelveticaNeue-BlackCondObl /HelveticaNeue-BlackExt /HelveticaNeue-BlackExtObl /HelveticaNeue-BlackItalic /HelveticaNeue-Bold /HelveticaNeue-BoldCond /HelveticaNeue-BoldCondObl /HelveticaNeue-BoldExt /HelveticaNeue-BoldExtObl /HelveticaNeue-BoldItalic /HelveticaNeue-Condensed /HelveticaNeue-CondensedObl /HelveticaNeue-ExtBlackCond /HelveticaNeue-ExtBlackCondObl /HelveticaNeue-Extended /HelveticaNeue-ExtendedObl /HelveticaNeue-Heavy /HelveticaNeue-HeavyCond /HelveticaNeue-HeavyCondObl /HelveticaNeue-HeavyExt /HelveticaNeue-HeavyExtObl /HelveticaNeue-HeavyItalic /HelveticaNeue-Italic /HelveticaNeue-Light /HelveticaNeue-LightCond /HelveticaNeue-LightCondObl /HelveticaNeue-LightExt /HelveticaNeue-LightExtObl /HelveticaNeue-LightItalic /HelveticaNeue-Medium /HelveticaNeue-MediumCond /HelveticaNeue-MediumCondObl /HelveticaNeue-MediumExt /HelveticaNeue-MediumExtObl /HelveticaNeue-MediumItalic /HelveticaNeue-Roman /HelveticaNeue-Thin /HelveticaNeue-ThinCond /HelveticaNeue-ThinCondObl /HelveticaNeue-ThinExt /HelveticaNeue-ThinExtObl /HelveticaNeue-ThinItalic /HelveticaNeue-UltraLigCond /HelveticaNeue-UltraLigCondObl /HelveticaNeue-UltraLigExt /HelveticaNeue-UltraLigExtObl /HelveticaNeue-UltraLight /HelveticaNeue-UltraLightItal /Helvetica-Oblique /Helvetica-UltraCompressed /HelvExtCompressed /HelvLight /HelvUltCompressed /Humanist521BT-Bold /Humanist521BT-BoldCondensed /Humanist521BT-BoldItalic /Humanist521BT-ExtraBold /Humanist521BT-Italic /Humanist521BT-Light /Humanist521BT-LightItalic /Humanist521BT-Roman /Humanist521BT-RomanCondensed /Humanist521BT-UltraBold /Humanist521BT-XtraBoldCondensed /Humanist777BT-BlackB /Humanist777BT-BlackItalicB /Humanist777BT-BoldB /Humanist777BT-BoldItalicB /Humanist777BT-ItalicB /Humanist777BT-LightB /Humanist777BT-LightItalicB /Humanist777BT-RomanB /Iglesia-Light /Imago-Book /Imago-BookItalic /Imago-ExtraBold /Imago-ExtraBoldItalic /Imago-Light /Imago-LightItalic /Imago-Medium /Imago-MediumItalic /Industria-Solid /Industria-SolidA /IPAExtras /IPAHighLow /IPAKiel /IPAKielSeven /IPAsans /ITCFranklinGothicStd-BkCp /ITCGaramondMM /ITCGaramondMM-It /JansonText-Bold /JansonText-BoldItalic /JansonText-Italic /JansonText-Roman /JoannaMT /JoannaMT-Bold /JoannaMT-BoldItalic /JoannaMT-Italic /Juniper /KabelITCbyBT-Book /KabelITCbyBT-Demi /KabelITCbyBT-Medium /KabelITCbyBT-Ultra /Kaufmann /Kaufmann-Bold /KeplMM-Or2 /KisBT-Italic /KisBT-Roman /KlangMT /Lapidary333BT-Black /Lapidary333BT-Bold /Lapidary333BT-BoldItalic /Lapidary333BT-Italic /Lapidary333BT-Roman /LASY10 /LASY5 /LASY6 /LASY7 /LASY8 /LASY9 /LASYB10 /LatinMT-Condensed /LCIRCLE10 /LCIRCLEW10 /LCMSS8 /LCMSSB8 /LCMSSI8 /LDecorationPi-One /LDecorationPi-Two /Leawood-Black /Leawood-BlackItalic /Leawood-Bold /Leawood-BoldItalic /Leawood-Book /Leawood-BookItalic /Leawood-Medium /Leawood-MediumItalic /LegacySans-Bold /LegacySans-BoldItalic /LegacySans-Book /LegacySans-BookItalic /LegacySans-Medium /LegacySans-MediumItalic /LegacySans-Ultra /LegacySerif-Bold /LegacySerif-BoldItalic /LegacySerif-Book /LegacySerif-BookItalic /LegacySerif-Medium /LegacySerif-MediumItalic /LegacySerif-Ultra /LetterGothic /LetterGothic-Bold /LetterGothic-BoldSlanted /LetterGothic-Slanted /Life-Bold /Life-Italic /Life-Roman /LINE10 /LINEW10 /Linotext /Lithos-Black /LithosBold /Lithos-Bold /Lithos-Regular /LOMD-Normal /LubalinGraph-Book /LubalinGraph-BookOblique /LubalinGraph-Demi /LubalinGraph-DemiOblique /LucidaHandwritingItalic /LucidaMath-Extension /LucidaMath-Italic /LucidaMath-Symbol /LucidaTypewriter /LucidaTypewriter-Bold /LucidaTypewriter-BoldObl /LucidaTypewriter-Obl /LydianBT-Bold /LydianBT-BoldItalic /LydianBT-Italic /LydianBT-Roman /LydianCursiveBT-Regular /Marigold /MathematicalPi-Five /MathematicalPi-Four /MathematicalPi-One /MathematicalPi-Six /MathematicalPi-Three /MathematicalPi-Two /Melior /Melior-Bold /Melior-BoldItalic /Melior-Italic /MercuriusMT-BoldScript /Meridien-Bold /Meridien-BoldItalic /Meridien-Italic /Meridien-Medium /Meridien-MediumItalic /Meridien-Roman /Minion-Black /Minion-Bold /Minion-BoldCondensed /Minion-BoldCondensedItalic /Minion-BoldItalic /Minion-Condensed /Minion-CondensedItalic /Minion-DisplayItalic /Minion-DisplayRegular /MinionExp-Italic /MinionExp-Semibold /MinionExp-SemiboldItalic /Minion-Italic /Minion-Ornaments /Minion-Regular /Minion-Semibold /Minion-SemiboldItalic /MonaLisa-Recut /MSAM10 /MSAM10A /MSBM10 /MSBM10A /MSBM5 /MSBM6 /MSBM7 /MSBM8 /MSBM9 /MTEX /MTEXB /MTEXH /MT-Extra /MTGU /MTGUB /MTMI /MTMIB /MTMIH /MTMS /MTMSB /MTMUB /MTMUH /MTSY /MTSYB /MTSYH /MT-Symbol /MT-Symbol-Italic /MTSYN /Myriad-Bold /Myriad-BoldItalic /Myriad-CnBold /Myriad-CnBoldItalic /Myriad-CnItalic /Myriad-CnSemibold /Myriad-CnSemiboldItalic /Myriad-Condensed /Myriad-Italic /MyriadMM /MyriadMM-It /Myriad-Roman /Myriad-Sketch /Myriad-Tilt /NeuzeitS-Book /NeuzeitS-BookHeavy /NewBaskerville-Bold /NewBaskerville-BoldItalic /NewBaskerville-Italic /NewBaskervilleITCbyBT-Bold /NewBaskervilleITCbyBT-BoldItal /NewBaskervilleITCbyBT-Italic /NewBaskervilleITCbyBT-Roman /NewBaskerville-Roman /NewCaledonia /NewCaledonia-Black /NewCaledonia-BlackItalic /NewCaledonia-Bold /NewCaledonia-BoldItalic /NewCaledonia-BoldItalicOsF /NewCaledonia-BoldSC /NewCaledonia-Italic /NewCaledonia-ItalicOsF /NewCaledonia-SC /NewCaledonia-SemiBold /NewCaledonia-SemiBoldItalic /NewCenturySchlbk-Bold /NewCenturySchlbk-BoldItalic /NewCenturySchlbk-Italic /NewCenturySchlbk-Roman /NewsGothic /NewsGothic-Bold /NewsGothic-BoldOblique /NewsGothicBT-Bold /NewsGothicBT-BoldCondensed /NewsGothicBT-BoldCondItalic /NewsGothicBT-BoldExtraCondensed /NewsGothicBT-BoldItalic /NewsGothicBT-Demi /NewsGothicBT-DemiItalic /NewsGothicBT-ExtraCondensed /NewsGothicBT-Italic /NewsGothicBT-ItalicCondensed /NewsGothicBT-Light /NewsGothicBT-LightItalic /NewsGothicBT-Roman /NewsGothicBT-RomanCondensed /NewsGothic-Oblique /New-Symbol /NovareseITCbyBT-Bold /NovareseITCbyBT-BoldItalic /NovareseITCbyBT-Book /NovareseITCbyBT-BookItalic /Nueva-BoldExtended /Nueva-Roman /NuptialScript /OceanSansMM /OceanSansMM-It /OfficinaSans-Bold /OfficinaSans-BoldItalic /OfficinaSans-Book /OfficinaSans-BookItalic /OfficinaSerif-Bold /OfficinaSerif-BoldItalic /OfficinaSerif-Book /OfficinaSerif-BookItalic /OnyxMT /Optima /Optima-Bold /Optima-BoldItalic /Optima-BoldOblique /Optima-ExtraBlack /Optima-ExtraBlackItalic /Optima-Italic /Optima-Oblique /OttaIA /Otta-wa /Ottawa-BoldA /OttawaPSMT /Oxford /Palatino-Bold /Palatino-BoldItalic /Palatino-Italic /Palatino-Roman /Parisian /PhotinaMT /PhotinaMT-Bold /PhotinaMT-BoldItalic /PhotinaMT-Italic /PhotinaMT-SemiBold /PhotinaMT-SemiBoldItalic /PhotinaMT-UltraBold /PhotinaMT-UltraBoldItalic /Plantin /Plantin-Bold /Plantin-BoldItalic /Plantin-Italic /Plantin-Light /Plantin-LightItalic /Plantin-Semibold /Plantin-SemiboldItalic /Poetica-ChanceryI /Poetica-SuppLowercaseEndI /PopplExquisit-Medium /PopplExquisit-Regular /PopplLaudatio-Italic /PopplLaudatio-Medium /PopplLaudatio-MediumItalic /PopplLaudatio-Regular /ProseAntique-Bold /ProseAntique-Normal /QuaySansEF-Black /QuaySansEF-BlackItalic /QuaySansEF-Book /QuaySansEF-BookItalic /QuaySansEF-Medium /QuaySansEF-MediumItalic /Raleigh /Raleigh-Bold /Raleigh-DemiBold /Raleigh-Medium /Revival565BT-Bold /Revival565BT-BoldItalic /Revival565BT-Italic /Revival565BT-Roman /Ribbon131BT-Bold /Ribbon131BT-Regular /RMTMI /Rockwell /Rockwell-Bold /Rockwell-BoldItalic /Rockwell-Italic /Rockwell-Light /Rockwell-LightItalic /RotisSansSerif /RotisSansSerif-Bold /RotisSansSerif-ExtraBold /RotisSansSerif-Italic /RotisSansSerif-Light /RotisSansSerif-LightItalic /RotisSemiSerif /RotisSemiSerif-Bold /RotisSerif /RotisSerif-Bold /RotisSerif-Italic /RunicMT-Condensed /RuzickaFreehandLH-Bold /RuzickaFreehandLH-BoldSC /RuzickaFreehandLH-Roman /RuzickaFreehandLH-RomanSC /Sabon-Bold /Sabon-BoldItalic /Sabon-Italic /Sabon-Roman /Sam /Sanvito-Light /SanvitoMM /Sanvito-Roman /SIVAMATH /Siva-Special /SMSIISpl-Italic /SMS-SPELA /SMSspl /Souvenir-Demi /Souvenir-DemiItalic /SouvenirITCbyBT-Demi /SouvenirITCbyBT-DemiItalic /SouvenirITCbyBT-Light /SouvenirITCbyBT-LightItalic /Souvenir-Light /Souvenir-LightItalic /SpecialAA /Special-Gali /Sp-Sym /Square721Blk-Italic /Square721Blk-Normal /Square721-BoldItalic /Square721BT-Bold /Square721BT-BoldCondensed /Square721BT-BoldExtended /Square721BT-Italic /Square721BT-Roman /Square721BT-RomanCondensed /Square721BT-RomanExtended /Square721Dm-Italic /Square721Dm-Normal /SquareSlabserif711BT-Bold /SquareSlabserif711BT-Light /SquareSlabserif711BT-Medium /Staccato222BT-Regular /Staccato555BT-RegularA /StempelGaramond-Bold /StempelGaramond-BoldItalic /StempelGaramond-Italic /StempelGaramond-Roman /StoneSans /StoneSans-Bold /StoneSans-BoldItalic /StoneSans-Italic /StoneSans-PhoneticAlternate /StoneSans-PhoneticIPA /StoneSans-Semibold /StoneSans-SemiboldItalic /StoneSerif /StoneSerif-Italic /StoneSerif-PhoneticAlternate /StoneSerif-PhoneticIPA /StoneSerif-Semibold /StoneSerif-SemiboldItalic /Swiss721BT-Black /Swiss721BT-BlackCondensed /Swiss721BT-BlackCondensedItalic /Swiss721BT-BlackExtended /Swiss721BT-BlackItalic /Swiss721BT-BlackOutline /Swiss721BT-BlackRounded /Swiss721BT-Bold /Swiss721BT-BoldCondensed /Swiss721BT-BoldCondensedItalic /Swiss721BT-BoldCondensedOutline /Swiss721BT-BoldExtended /Swiss721BT-BoldItalic /Swiss721BT-BoldOutline /Swiss721BT-BoldRounded /Swiss721BT-Heavy /Swiss721BT-HeavyItalic /Swiss721BT-Italic /Swiss721BT-ItalicCondensed /Swiss721BT-Light /Swiss721BT-LightCondensed /Swiss721BT-LightCondensedItalic /Swiss721BT-LightExtended /Swiss721BT-LightItalic /Swiss721BT-Medium /Swiss721BT-MediumItalic /Swiss721BT-Roman /Swiss721BT-RomanCondensed /Swiss721BT-RomanExtended /Swiss721BT-Thin /Swiss721BT-ThinItalic /Symbol /Techno /Tekton /Times-Bold /Times-BoldA /Times-BoldItalic /Times-BoldOblique /Times-ExtraBold /Times-Italic /Times-NewRoman /Times-NewRomanBold /TimesNewRomanMT-BoldCond /TimesNewRomanMT-Cond /TimesNewRomanMT-CondItalic /TimesNewRomanPS-BoldItalicMT /TimesNewRomanPS-BoldMT /TimesNewRomanPS-ItalicMT /TimesNewRomanPSMT /Times-Oblique /Times-PhoneticAlternate /Times-PhoneticIPA /Times-Roman /Times-RomanSmallCaps /Times-Sc /Times-SCB /Times-special /TradeGothic /TradeGothic-Bold /TradeGothic-BoldCondTwenty /TradeGothic-BoldCondTwentyObl /TradeGothic-BoldOblique /TradeGothic-BoldTwo /TradeGothic-BoldTwoOblique /TradeGothic-CondEighteen /TradeGothic-CondEighteenObl /TradeGothicLH-BoldExtended /TradeGothicLH-Extended /TradeGothic-Light /TradeGothic-LightOblique /TradeGothic-Oblique /Trajan-Bold /Trajan-Regular /Univers /Universal-GreekwithMathPi /Universal-NewswithCommPi /Univers-Black /Univers-BlackExt /Univers-BlackExtObl /Univers-BlackOblique /Univers-Bold /Univers-BoldExt /Univers-BoldExtObl /Univers-BoldOblique /Univers-Condensed /Univers-CondensedBold /Univers-CondensedBoldOblique /Univers-CondensedLight /Univers-CondensedLightOblique /Univers-CondensedOblique /Univers-Extended /Univers-ExtendedObl /Univers-ExtraBlackExt /Univers-ExtraBlackExtObl /Univers-Light /Univers-LightOblique /Univers-Oblique /Utopia-Regular /VAGRounded-Black /VAGRounded-Bold /VAGRounded-Light /VAGRounded-Thin /Viva-BoldExtraExtended /Viva-Regular /Weidemann-Black /Weidemann-BlackItalic /Weidemann-Bold /Weidemann-BoldItalic /Weidemann-Book /Weidemann-BookItalic /Weidemann-Medium /Weidemann-MediumItalic /WindsorBT-Elongated /WindsorBT-Light /WindsorBT-LightCondensed /WindsorBT-Roman /Wingdings-Regular /WNCYB10 /WNCYI10 /WNCYR10 /WNCYSC10 /WNCYSS10 /WoodtypeOrnaments-One /WoodtypeOrnaments-Two /ZapfCalligraphic801BT-Bold /ZapfCalligraphic801BT-BoldItal /ZapfCalligraphic801BT-Italic /ZapfCalligraphic801BT-Roman /ZapfChanceryITCbyBT-Bold /ZapfChanceryITCbyBT-Demi /ZapfChanceryITCbyBT-Medium /ZapfChanceryITCbyBT-MediumItal /ZapfChancery-MediumItalic /ZapfDingbats /ZapfDingbatsITCbyBT-Regular /ZapfElliptical711BT-Bold /ZapfElliptical711BT-BoldItalic /ZapfElliptical711BT-Italic /ZapfElliptical711BT-Roman /ZapfHumanist601BT-Bold /ZapfHumanist601BT-BoldItalic /ZapfHumanist601BT-Demi /ZapfHumanist601BT-DemiItalic /ZapfHumanist601BT-Italic /ZapfHumanist601BT-Roman /ZapfHumanist601BT-Ultra /ZapfHumanist601BT-UltraItalic /ZurichBT-Black /ZurichBT-BlackExtended /ZurichBT-BlackItalic /ZurichBT-Bold /ZurichBT-BoldCondensed /ZurichBT-BoldCondensedItalic /ZurichBT-BoldExtended /ZurichBT-BoldExtraCondensed /ZurichBT-BoldItalic /ZurichBT-ExtraBlack /ZurichBT-ExtraCondensed /ZurichBT-Italic /ZurichBT-ItalicCondensed /ZurichBT-Light /ZurichBT-LightCondensed /ZurichBT-LightCondensedItalic /ZurichBT-LightExtraCondensed /ZurichBT-LightItalic /ZurichBT-Roman /ZurichBT-RomanCondensed /ZurichBT-RomanExtended /ZurichBT-UltraBlackExtended ] /NeverEmbed [ true ] /AntiAliasColorImages false /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox false /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /SyntheticBoldness 1.000000 /Description << /FRA <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> /JPN <FEFF3053306e8a2d5b9a306f30019ad889e350cf5ea6753b50cf3092542b308000200050004400460020658766f830924f5c62103059308b3068304d306b4f7f75283057307e30593002537052376642306e753b8cea3092670059279650306b4fdd306430533068304c3067304d307e305930023053306e8a2d5b9a30674f5c62103057305f00200050004400460020658766f8306f0020004100630072006f0062006100740020304a30883073002000520065006100640065007200200035002e003000204ee5964d30678868793a3067304d307e30593002> /DEU <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> /PTB <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> /DAN <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> /NLD <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> /ESP <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> /SUO <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> /ITA <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> /NOR <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> /SVE <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> /ENU <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> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_oy2ijsrchjfgvngc53vfpcox5a	----	beri159.PDF  Prof. Dr. Manfred Schmitt Fachbereich I - Psychologie Universität Trier D-54286 Trier Telefon: 0651/201-2035 E-Mail: schmittm@uni-trier.de 159 2003 Manfred Schmitt, Mario Gollwitzer & Dima Arbach Justice Sensitivity: Assessment and Location in the Personality Space ISSN 1430-1148 We thank Jane Thompson for helpful comments on an earlier version of the paper. Correspondence regarding this article should be addressed to Manfred Schmitt, Department of Psychology, University of Trier, 54286 Trier, Germany. E-mail address: schmittm@uni- trier.de. 1 Contents Study 1 9 Method 10 Sample 10 Design and Measurement Instruments 10 Justice Sensitivity Scales 11 Results 11 Descritptive Statistics and Factorial Structure of the Justice Sensitivity Scales 11 Simultaneous Latent State-Trait Analysis of the Justice Sensititvity Scales 14 Discussion 19 Study 2 22 Method 22 Samples 22 Procedure 23 Assessment of Justice Sensitivity 24 Assessment of Self-Centered Concerns 24 Assessment of Other-Centered Concerns 26 Assessment of Other Justice Constructs 26 Assessment of Personality Factors 27 Assessment of Social Desirability 27 Results 28 Discussion 30 General Discussion 33 References 37 Bisher erschienene Arbeiten dieser Reihe 44 Andernorts erschienene Arbeiten aus der Arbeitsgruppe 57 2 Abstract Scales for justice sensitivity from three perspectives (victim, observer, perpetrator) were developed. A latent state-trait analysis revealed high reliabilities (≈ .95). Trait consistencies (≈ .61) were twice as large as occasion specificities (≈ .33). The correlation between observer and perpetrator sensitivity was much higher than the correlation between either two and victim sensitivity. Self-related concerns (machiavellianism, paranoia, suspiciousness, vengeance, jealousy, interpersonal trust) correlated more highly with victim sensitivity than with observer and perpetrator sensitivity. Other-related concerns (role taking, empathy, social responsibility) correlated more highly with observer and perpetrator sensitivity than with victim sensitivity. Low correlations between justice sensitivity and just world belief system were found. Few correlations between justice sensitivity and broad personality traits were significant. Victim sensitivity correlates with neuroticism (≈ .30). Perpetrator sensitivity correlates with agreeableness (≈ .20). Observer and perpetrator sensitivity reflect high moral standards. Victim sensitivity is a mixture of self-protective motives and moral concerns. Key words: prosocial orientation, self-related concerns, other-related concerns, moral rigor 3 Sensitivity, tolerance and reactivity are central concepts in various psychological theories and research fields. Many studies in psychophysics and perception have shown that perceptual thresholds differ between individuals (Stevens, 1975). For example, some individuals feel pain when they are exposed to mild electric stimuli whereas others feel no pain even when exposed to strong electric shock (Rollman & Harris, 1987). Similar individual differences in sensitivity have been found in other psychological domains. Research in aggression has revealed individual differences in frustration tolerance (Rosenzweig, 1978). People also differ in their tolerance of ambiguity (Frenkel-Brunswik, 1949). Gray (1970) has proposed a personality theory, which assumes individual differences in sensitivity to reward and in sensitivity to punishment. Davis (1983) assumed that people differ in their interpersonal reactivity. Finally, the concepts of physiological reactivity (Manuck, Kasprowicz, Monroe, Larkin & Kaplan, 1989), emotional reactivity (Strelau, 1996), and affect intensity (Larsen & Diener, 1987) have been offered to explain that individuals differ in how easily and how strongly they can be affected by a wide range of emotion arousing events. During the last two decades, social psychologists have adopted the reactivity concept and proposed that individuals may not only differ in their tolerance versus sensitivity to physical stimuli, frustration, ambiguity, reward, and punishment, but also in their tolerance of moral norm violation and injustice (Dar & Resh, 2001, 2003; Huseman, Hatfield & Miles, 1985, 1987; Lovas, 1995; Lovas & Pirhacova, 1996; Lovas & Wolt, 2002; Schmitt, 1996; van den Bos, Maas, Waldring & Semin, 2003). Based on their research findings, these authors have argued that personality differences in justice sensitivity may be no less important than are situational (Törnblom, 1992) and societal (Gurr, 1970) factors for understanding why individuals feel treated unfairly when they encounter certain procedures and outcomes of social interaction. Thorough empirical investigation of this conclusion requires reliable and valid instruments for the assessment of justice sensitivity. 4 A systematic approach towards this end was initiated by Schmitt, Neumann and Montada (1995). These authors developed a questionnaire, which employs four types of justice sensitivity indicators: (1) The first indicator, the frequency of experienced injustice, was directly derived from the threshold concept. Having a low threshold for injustice will make justice sensitive individuals detect more cases of injustice (higher alarm rates) than insensitive individuals. Additionally, sensitive individuals will judge ambiguous situations, in which unfavorable outcomes occurred, more often as unjust than will insensitive individuals. Consequently, sensitive individuals will remember and report more cases of experienced injustice compared to insensitive individuals. (2) The second indicator, the intensity of anger, was based on research showing that anger is the most typical emotional reaction to injustice (Mikula, Scherer & Athenstaedt, 1998; Törestad, 1990). Assuming that justice sensitive individuals react more passionately toward injustice, they will experience more anger than insensitive individuals. (3) The third indicator, intrusiveness, was inspired by emotion and coping research demonstrating that strong emotions tend to preoccupy the mind and often lead to enduring rumination (Rime, Philippot, Boca & Mesquita, 1992). Assuming that emotional reactions to unjust events are stronger for sensitive individuals than for insensitive individuals, sensitive individuals should experience unjust events as more intrusive and ruminate longer about such events than do insensitive individuals. (4) The fourth indicator, punitivity, follows from theory and research on interactional justice implying that retribution is considered a legitimate reaction of victims if the harm-doer is considered guilty according to moral standards (Miller, 2001). Assuming that justice sensitive individuals have more rigorous moral standards than insensitive individuals, the former should be more inclined to punish the perpetrator than the latter. Schmitt et al. (1995) generated items for their questionnaire by combining these four indicators with 18 types of unjust situations such as "performing better than others without getting any appreciation or reward." 5 Several studies were conducted to explore the construct validity of the justice sensitivity questionnaire. Schmitt et al. (1995) tested the convergent and discriminant validity of the four indicators successfully against indicators for theoretically related constructs (frustration tolerance, trait anger, anger in, anger out, life satisfaction, centrality of justice, interpersonal trust, need for control). Schmitt and Mohiyeddini (1996) found that individuals high in justice sensitivity reacted with stronger resentment to a natural deprivation of a desired outcome than subjects low in justice sensitivity. Mohiyeddini and Schmitt (1997) replicated this result for students who participated in an unfair achievement contest in the laboratory. In both studies, reactions of the disadvantaged participants could be better predicted from justice sensitivity than from measures for self assertiveness, trait anger, anger in, anger control, and anger out. In a field study by Schmitt and Dörfel (1999), justice sensitivity (measured with the intrusiveness scale) moderated the effect of procedural unfairness at work on job satisfaction and psychosomatic well-being. In line with theoretical expectations and supporting the construct validity of the intrusiveness scale, procedural fairness had a higher impact on the outcome variables for justice sensitive workers than for justice insensitive workers. The current research follows up on these investigations and extends them in several regards. More specifically, the studies that will be reported in this paper were aimed at five related research goals: (1) The questionnaire developed by Schmitt et al. (1995) is rather long and lacks efficiency. Therefore, a short scale was designed which contains only 10 items. Item selection occurred on the basis of results obtained in the Schmitt et al. (1995) study and the validation studies reported earlier. Schmitt et al. (1995) performed a confirmatory factor analysis with test halves of the four indicator scales. This analysis revealed that anger and intrusiveness had higher loadings on the common justice sensitivity factor than frequency and punitivity. Based on this result, items were selected which pertain (a) to the intensity of general and anger 6 specific emotional reaction to unfair events and (b) to the intrusiveness of such events. The quality of this short scale will be investigated in Study 1. (2) Unfair events often imply the participation of three parties or roles. In cases of distributive injustice, for instance, a Person A (victim) usually feels unfairly deprived of a desired outcome compared to another person B who either took passive advantage of the unfair distribution or actively contributed to it. For reasons of terminological simplicity, we will call Person B the perpetrator. This term is meant to include both actively exploiting a victim or taking advantage passively of unfair advantages. Research on relative privilege has revealed that people tend to feel guilty (and thus consider themselves as victimizers) when they are advantaged compared to others and when they cannot justify their privileged situation (Harvey & Oswald, 2000; Montada, Schmitt & Dalbert, 1986). Finally, unfair events are often perceived by persons who are not directly involved in the interaction but who are nevertheless aware of it. We call such a person the observer. Reactions toward injustice from an observer's perspective can be as passionate as reactions from the victim's perspective (Miller, 2001; Vidmar, 2000). However, research on role and perspective effects in aggression (Mummendey, Linneweber & Löschper, 1984) and justice behavior (Mikula, 1994) confirms everyday experience that the same unpleasant event will often be judged quite differently depending on the perspective from which it is viewed. We propose that this principle can be transferred to the justice sensitivity construct. It seems reasonable to assume that individuals differ, not only in how sensitively they react as victims to unfair events, but also in how sensitive they are when involved in an unjust episode as perpetrators or as observers. In fact, studies on existential guilt have shown that some advantaged individuals are more likely to react with feelings of guilt to undeserved privilege than are others (Montada et al., 1986; Montada & Schneider, 1989; Schmitt, Behner, Montada, Müller & Müller-Fohrbrodt, 2000). Similarly, the literature on moral judgment suggests that people differ substantially in their 7 moral rigor and thus in their proneness to condemn unfair acts and to intervene when they observe someone being victimized (Hoffman, 2000). In order to explore the suggestion that individuals differ not only in their sensitivity to injustice from the perspective of victims but also in their sensitivity from the perspective of perpetrators and observers, scales for measuring these two types of sensitivity were designed. Items were phrased as closely as possible to the items of the victim sensitivity scale to avoid confounding perspective and item content. However, anger had to be replaced as an indicator because anger is the typical emotion of a victim, whereas perpetrators feel guilty when they admit to having acted unjustly or to being better off than others without deserving to. Further, observers have been assumed and found to feel moral outrage when they witness someone being exploited (Montada, 1993; Solomon, 1976). In addition to exploring the quality of the short victim justice sensitivity scale, Study 1 was also devoted to determining the quality of the perpetrator justice sensitivity scale and the observer justice sensitivity scale. (3) A third goal of Study 1 was to investigate the extent to which individual differences in justice sensitivity are generalized across perspectives. Determining the covariation among the three sensitivit y perspectives is important from a theoretical point of view, for the efficient and precise assessment of justice sensitivity and for obtaining evidence on the construct validity of the scales. Research on role and perspective effects on justice behavior (Mikula, 1994) suggests that sensitivity perspectives will converge to some degree but not entirely. A very high correlation among the sensitivity perspectives seems unlikely because the psychological consequences of a perceived injustice differ depending on the role a person plays in the interaction. However, complete independence of the three sensitivity perspectives also seems unlikely because the moral wrongfulness of an unfair event does not depend on the role someone plays in it. We assume that moral rigor is a common source of variance of all three sensitivity perspectives and makes them converge to some extent. Although the exact 8 amount of convergence cannot be predicted, there is reason to assume a larger convergence among the perpetrator and the observer perspectives than among each of these two perspectives and the victim perspective. Unlike the victim, both perpetrators and observers do not suffer directly from unfairness. Whereas the victim is clearly powerless in the situation, this is not necessarily true for the perpetrator and the observer. Perpetrators are powerful because their role implies a maximization of their own advantages at the expense of the victim. Observers are potentially powerful because their neutrality bestows them with moral authority. Therefore, we assume that encountering injustice from a victim's perspective is qualitatively different than from an observer's or a perpetrator's perspective. Furthermore, we assume for two reasons that the victim's perspective has more in commo n with the observer's than with the perpetrator's perspective: (a) Observers will more likely identify with victims than with perpetrators (Miller, 2001; Vidmar, 2000). (b) Having experienced injustice as a victim will render people more sensitive to justice as an observer. For both reasons, we expect a larger correlation between victim sensitivity and observer sensitivity than between victim sensitivity and perpetrator sensitivity. (4) A fourth goal of Study 1 was to determine the stability versus occasion-specificity of the three types of justice sensitivity. If they are, as we assume, personality traits, they should display considerable stability across time. However, previous research has shown that even measures for stable personality traits are not perfectly stable. They vary reliably across time due to systematic factors that affect indicators of these traits either at the occasion of measurement or between occasions of measurement such that a residual impact is still observable when the trait measure is taken (Steyer, Schmitt & Eid, 1999). Regarding justice sensitivity, the experience of injustice may elevate a person’s sensitivity temporarily, albeit not permanently. Similarly, if a person does not encounter any unfairness during a certain period of time, his or her justice sensitivity may decrease and be lower at the end of this 9 period than at its beginning. In line with this reasoning, Mohiyeddini (1998) found for his justice sensitivity questionnaire (victim perspective) that it measured predominantly stable individual differences but also unstable factors. Using a much larger sample than Mohiyeddini (1998), Study 1 will perform a simultaneous latent state-trait analysis on all three perspectives and explore the size of occasion specific effects and to what extent they generalize across perspectives. (5) A fifth goal of this research was pursued in Study 2. As part of the construct validation of the first justice sensitivity questionnaire, Schmitt et al. (1995) determined correlations between the indicator scales and some other personality traits (frustration tolerance, trait anger, anger in, anger out, life satisfaction, centrality of justice, interpersonal trust, need for control). Lovas and Wolt (2002) extended the Schmitt et al. (1995) study and obtained correlations between justice sensitivity and the personality factors measured by the “Freiburger Persönlichkeitsinventar” (FPI; Fahrenberg, Hampel and Selg, 1989), a widely used German personality inventory. Study 2 goes beyond the Schmitt et al. (1995) and the Lovas and Wolt (2002) studies in two important regards: It includes all three sensitivity perspectives and a much larger set of referent constructs both on the level of broad personality factors and on the level of more specific traits that can be linked theoretically to justice sensitivity. Both supplements will allow us, better than it was previously possible, to understand the psychology of justice sensitivity, to locate justice sensitivity in the multivariate personality space, and to explore in considerable depth the convergent and discriminant construct validity of the three justice sensitivity scales. Study 1 Study 1 aimed to investigate the quality of the short justice sensitivity scales (victim, observer, perpetrator), the degree to which the three sensitivity perspectives correlate, the 10 amount of longitudinal stability of individual differences in justice sensitivity, the extent of systematic intraindividual change in justice sensitivity and the degree to which intraindividual change occurs synchronously across perspectives versus independently for each perspective. Data were collected as part of a large longitudinal study on the psychological consequences of the German unification (e.g., Schmitt & Maes, 2002). Method Sample In order to maximize the demographic heterogeneity and representativeness of the sample, participants were recruited on the basis of a geographical division of Germany into 18 cells (East/West x North/Middle/South x Large cities/Medium sized cities/Small cities). Registration offices of two communities in each cell provided random samples from the population of all inhabitants between 15 and 75 years of age. Additional respondents were drawn randomly from electronic telephone directories. A total of 3170 citizens agreed to participate in the study and were sent questionnaires. The present analysis is based on a sub- sample of participants who provided complete data on all items of the sensitivity scales at two occasions of measurement (N = 2384, 1258). At Occasion 1, mean age of this sub-sample was M = 47.6 years (SD = 15.8; min = 14; max = 88). The proportion of males was 60 %. The sample was representative according to many, but not all demographic variables. Men and participants with higher education are over-represented. Design and Measurement Instruments Data were collected in Spring 1996 and Spring 1998. Questionnaires were sent by mail and answered anonymously. The main focus of the survey was on life quality in united Germany. The justice sensitivity scales were embedded in other sets of items measuring variables that are not of interest here. 11 Justice Sensitivity Scales The wording of the items of the three justice sensitivity scales appears in Table 1. The scales were presented as a unit in the questionnaire booklet. The title was: “How do you react in unfair situations?” Perspectives were separated from each other by short instructions. The instruction for the victim perspective was: “People react differently to unfair situations. How about you? First, we will consider cases where you are disadvantaged.” The instruction for the observer scales was: “Now consider situations in which you observe that someone else is disadvantaged or being exploited.” The instruction for the perpetrator scale was: “Finally, consider situations in which you are advantaged and someone else is disadvantaged.” Items had to be answered on six-point rating scales ranging from 0=not at all to 5=exactly. Results Descriptive Statistics and Factorial Structure of the Justice Sensitivity Scales Using the large sample from Occasion 1, the 30 sensitivity items were submitted to an exploratory common factor (principal axes) analysis. Five eigenvalues of the correlation matrix were larger than 1 (11.21; 4.02; 1.97; 1.55; 1.19). The scree-test suggested either two or three common factors explaining 47 % and 54 % of the item variance, respectively. When three factors were extracted and rotated, they reflected roughly the three perspectives. This was true for orthogonal (varimax) and oblique solutions (oblimin) alike. However, the simple structure of the three factor solution was poor and this was independent of the type of rotation used. Table 1 gives the factor loadings of the varimax solution. Factor 1 predominantly loads observer items. Also, two perpetrator items (7, 8) have higher loadings on this factor than on Factor 3. Three additional perpetrator items (6, 9, 10) load almost as highly on Factor 1 as on Factor 3. Factor 2 represents the victim perspective. 12 Table 1 Descriptive Statistics of the Justice Sensitivity Items and Scale rit M SD λ1 λ2 λ3 h 2 V O P Victim 1. It bothers me when others receive something that ought to be mine. 3.01 1.41 -.10 .76 .13 .60 .65 2. It makes me angry when others receive an award which I have earned. 3.19 1.40 -.12 .78 .16 .64 .65 3. I can’t easily bear when others profit unilaterally from me. 3.00 1.44 .04 .66 .12 .45 .61 4. I can’t forget for a long time when I have to others’ carelessness. 2.10 1.44 .22 .51 .01 .31 .52 5. It me down when I get opportunities than others to develop my skills. 2.92 1.43 .21 .60 .10 .42 .61 6. It makes me angry when others are undeservingly better off than me. 2.27 1.60 .25 .62 -.04 .45 .64 7. It worries me when I have to hard for things that come to others. 2.01 1.53 .34 .56 -.13 .45 .60 8. I ruminate a long time when other people are being treated better than me. 2.31 1.53 .35 .58 .03 .46 .62 9. It burdens me to be criticized for things that are being overlooked with others. 3.09 1.39 .27 .65 .11 .51 .67 10. It makes me angry when I am treated worse than others. 3.27 1.36 .19 .69 .11 .52 .68 Observer 1. It bothers me when someone gets something they don’t deserve. 3.20 1.27 .49 .27 .40 .47 .70 2. I am upset when someone does not get a reward he/she has earned. 3.26 1.25 .50 .30 .40 .49 .72 3. I cannot easily bear it when someone unilaterally profits from others. 3.46 1.30 .43 .32 .32 .39 .62 4. I can’t forget for a long time when someone else has to others carelessness. 2.38 1.41 .60 .29 .22 .49 .68 5. It disturbs me when someone receives opportunities to develop his/her skills than others. 2.81 1.37 .67 .20 .27 .56 .75 6. I am upset when someone is undeservingly worse off than others. 2.99 1.39 .66 .22 .28 .56 .75 13 Table 1 continued 7. It worries me when someone has to hard for things that easily come to others. 2.14 1.48 .73 .25 .04 .59 .65 8. I ponder? a long time when someone is being treated nicer than others for no reason. 2.33 1.45 .69 .31 .15 .59 .69 9. It me down to see someone criticized for things that are overlooked with others. 2.92 1.38 .67 .27 .25 .58 .74 10. I am upset when someone is being treated worse than others. 3.33 1.32 .60 .24 .33 .54 .74 Perpetrator 1. It disturbs me when I receive what others ought to have. 3.26 1.36 .18 .08 .79 .67 .68 2. I have a bad conscience when I receive a reward that someone else has earned. 3.74 1.31 .12 .15 .80 .68 .65 3. I cannot easily bear to unilaterally profit from others. 3.38 1.40 .21 .09 .74 .60 .67 4. It worries me for a long time when others have to my carelessness. 3.55 1.38 .24 .14 .65 .50 .63 5. It makes me sad when I receive more opportunities than others to develop my skills. 2.43 1.52 .47 .01 .57 .54 .73 6. I feel guilty when I am better off than others for no reason. 2.34 1.53 .51 .00 .52 .53 .73 7. It bothers me when things come to me that others have to toil for. 1.79 1.51 .59 -.03 .33 .46 .62 8. I mull? for a long time about being treated nicer than others for no reason. 2.25 1.49 .57 .02 .48 .55 .73 9. It bothers me when someone tolerates things with me that other people are being criticized for. 2.52 1.46 .54 .01 .58 .63 .78 10. I feel guilty when I receive better treatment than others. 2.36 1.55 .55 -.02 .56 .61 .78 Proportion of variance explained by factor after rotation .21 .17 .16 Internal consistency Alpha of scale .89 .92 .92 Mean correlation among items of scale .44 .54 .54 Note. Means (M), standard deviations (SD), factor loadings (λ) and item communalities (h2) of the three factor varimax solution, item-total-correlations of the items (rit), proportions of item variance explained by the factors, internal consistencies Alpha of the victim (V), observer (O) and perpetrator (P) scales and mean item correlations within scales (N = 2384, list-wise deletion of missing values) 14 However, some victim items also have secondary loadings on the first factor (observer). Factor 3 loads primarily the ten perpetrator items. However, five perpetrator items also have high loadings on the first factor (see above). It can be expected from this pattern that in a two factor solution, the first and the third factors will merge. This was indeed the case. For theoretical reasons, however, the three factor solution was preferred for the moment. Table 1 also contains item means, standard deviations, item-total correlations, internal consistencies of the scales and mean inter-item-correlations within scales. The item means suggest that no item has to be excluded from a scale because of extreme item difficulty. The standard deviations are substantial compared to the six-point range of the response scale and imply that individuals differ considerably in their reactions to unfair events. More importantly, the standard deviations of the items are rather similar in size. The same is true for the item-total correlations: they also vary little across items. Both results suggest that the items differ little in how well they discriminate individuals in terms of their justice sensitivity. Furthermore, the item-total correlations, the mean inter-item correlations and the internal consistency values allow the conclusion that the three scales are homogeneous and reliable. Simultaneous Latent State-Trait Analysis of the Justice Sensitivity Scales In order to explore in more depth the correlational structure among the three perspectives, their temporal stability and their occasion specificity, the longitudinal data set was used for a simultaneous latent state-trait analysis according to Steyer, Ferring and Schmitt (1992; Steyer et al., 1999). Odd-eventesthalves were used as indicators. Latent state-trait theory is a generalization of classical test theory (Lord & Novick, 1968). Like classical test theory, it decomposes an observed variable into a true score variable and an error variable. However, whereas classical test theory interprets the true score variable as a latent trait, latent state-trait theory interprets it as a latent state. Latent states are decomposed into latent traits and occasion specific factors. Occasion specific factors reflect systematic effects of the 15 situation of measurement and person x situation interactions. By definition, occasion specific factors are independent (perfectly unstable) across time. Testable models can be derived from latentstate state-trait theory. Model tests require at least two occasions of measurement and at least two indictors for each construct at each occasion of measurement. Latent state-trait research has shown that in many applications, method factors or indicator specific factors need to be specified in addition to latent traits and latent occasion specific factors. This is true because two indicators of the same construct are almost never fully equivalent. Rather, they have unique factors in addition to the common factor they are supposed to measure. Four coefficients are defined in latent state-trait theory (when method factors are included) and determined from the parameter estimates of the model (variances of the manifest variables and the latent variables): Consistency is defined as the proportion of variance of a manifest variable that can be accounted for by individual differences in the latent trait. Occasion specificity is defined as the proportion of variance of a manifest variable that it is due to systematic but unstable individual differences at an occasion of measurement. Method specificity is defined as the proportion of variance of a manifest variable that is due to the nonequivalence among indicators. Like in classical test theory, reliability is defined as the proportion of systematic variance of a manifest variable. It is the sum of consistency, occasion specificity, and method specificity. Figure 1 displays the latent state-trait model for the present application. Two indicators (test-halves) are available for each construct (V = victim sensitivity, O = observer sensitivity, P = perpetrator sensitivity) at each occasion of measurement. The first index of the manifest variables denotes the test-half, the second index indicates the occasion of measurement. The index of the latent state variables denotes the occasion of measurement. Latent traits have no index because they are, by definition, stable across time and unspecific regarding their indicators. Occasion specific factors are modeled as latent state residuals (LSR). 16 Figure 1 Latent state-trait model for three justice sensitivity constructs (V = Victim, O = Observer, P = Perpetrator) measured with two indicators at two occasions of measurement (LSR = Latent state residual, Half 2 = Second test half). Their index denotes the occasion of measurement. The latent factor “Half 2” in Figure 1 represents a method factor. Because the items of the three scales are parallel in substance and similar in wording across perspectives, appear in the same order, and were divided into test- halves according to the same odd-even rule, one common factor may be sufficient for accounting for the lack of perfect equivalence of first and second test halves (cf. Eid, 2000). . State V1 . State V2 . State O1 . State O2 . State P1 . State P2 V11 V21 V12 V22 O11 O21 O12 O22 P11 P21 P12 P22 . . . Trait V Trait O Trait P LSR V1 LSR V2 LSR O1 LSR O2 LSR P1 LSR P2 . Half 2 Justice Sensitivity 17 Given the small number of indicators and occasions, the model in Figure 1 can be identified only when restrictions are imposed on parameters. All factor loadings were set equal to 1. Furthermore, the variances of the two latent state residuals of the same construct were constrained to be equal [e.g., Var(LSR V1) = Var(LSR V2)]. Given unit loadings of the traits, this restriction implies equal variances of the latent states of a construct [e.g., Var(State V1) = Var(State V2)]. Further, the covariances among the latent state residuals of the same construct were constrained to be identical across time [e.g., Cov(LSR V1 and LSR O1) = Cov(LSR V2 and LSR O2)]. Given these restrictions, 25 parameters were left to be estimated: three trait variances, three covariances among the traits, three variances of the latent state residuals, three covariances among the latent state residuals, one variance of the method factor and 12 measurement error variances. Using the covariance matrix of the twelve indicator variables, an acceptable fit was obtained for the model (χ253= 176.45; p < .01; RMSEA = .047; CFI = .99). Table 2 Correlations among the Justice Sensitivity Traits and the Latent State Residuals as Estimated According to the Latent State-Trait Model According to Figure 1 (V = Victim, O = Observer, P = Perpetrator) Trait V Trait O LSR V1 LSR V2 LSR O1 LSR O2 Trait O .45 Trait P .28 .79 LSR O1 .59 LSR O2 .59 LSR P1 .39 .62 LSR P2 .39 .62 Justice Sensitivity 18 Table 2 contains the correlations among the three latent sensitivity traits and the three sensitivity latent state residuals. The pattern of these correlations is consistent with the results that were obtained from the exploratory factor analysis of the items. The highest correlation, both for traits and occasion specific factors, was obtained between the observer and the perpetrator perspective. The lowest correlation was obtained between victim sensitivity and perpetrator sensitivity. Table 3 displays the average coefficients for the three perspective scales. Coefficients differed slightly across test halves and occasions because the measurement error variances differed slightly and so did, as a consequence, the estimated variances of the manifest variables. Because these differences were trivial, they are not reported in Table 3. Method specificity accounts for only a small percentage of individual differences in the manifest variables. Test halves measure predominantly the same common factor and come close to the ideal of perfectly congeneric tests. Trait consistency is similarly high for all three perspective scales. This means that the scales measure predominantly justice sensitivity differences between individuals that were stable across the two-year time span considered in our design. Occasion specific effects account for about half as much manifest variable variance as traits do. Table 3 Coefficients of the Sensitivity Scales as Determined from the Parameter Estimates of the Latent- State Trait Model Victim Obsever Perpetrator Trait Consistency .60 .60 .63 Occasion Specificity .33 .36 .32 Method Specificity .02 .01 .01 Reliability .95 .97 .96 Justice Sensitivity 19 This is large (or quite substantial) compared to other personality domains (cf. Deinzer et al., 1995; Steyer et al, 1999). Finally, the estimated reliability of the scales is very high: At least 95 % of the manifest variable variance is due to systematic sources of variance and only at most 5 % of the variance of the scales cannot be explained by the latent variables of our longitudinal measurement model. Discussion Our first research goal was successfully accomplished: The short scale for measuring justice sensitivity from the victim perspective is both efficient and reliable. Results regarding our second research goal are more complex. Whereas we succeeded in designing reliable scales for observer sensitivity and perpetrator sensitivity, these scales lack discriminant validity. Items for measuring observer sensitivity and perpetrator sensitivity did not load consistently on separate factors. Instead, some perpetrator items tended to have high secondary loadings or even primary loadings on the observer factor. A closer look at the loading matrix (Table 1) reveals that perpetrator items with high loadings on the observer factor did not state a direct link between own advantages and disadvantages of other people (items 5 through 10). By contrast, perpetrator items with high loadings on the perpetrator factor and lower loadings on the observer factor described a situation where the target person’s advantage was linked directly to the disadvantage of another person (items 1 through 4). This loading pattern suggests that being sensitive to disadvantages of others is largely independent from whether these disadvantages appear in contrast to one’s own advantages (perpetrator items) or in contrast to advantages of third persons (observer items). Without a direct link between one’s own advantages and others’ disadvantages, the advantaged person does not bear a personal responsibility for the unfair situation. Not being confronted with a direct link between one’s own advantages and disadvantages of others resembles the situation of an observer. By contrast, observer and perpetrator roles are more distinct in cases where advantages of the target person are directly linked to disadvantages of Justice Sensitivity 20 victims. In such a situation of negative interdependence (perpetrator items 1 through 4), the advantages of the target person appear as causes for the disadvantages of others. Consequently, the target will feel some personal responsibility for the situation of the victim (Shaver, 1985). Consistent with this reasoning, research on the existential guilt reaction has found that privileged people’s sense of moral responsibility depends on whether or not they perceive a causal interdependence between their living conditions and those of disadvantaged groups (Schmitt et al., 1989). Our interpretation implies that the first four items of the perpetrator scale tend to be somewhat more valid indicators of the perpetrator sensitivity construct than the items 5 through 10. Despite this divergence between the first four and the last six perpetrator items, the perpetrator scale is no less internally consistent than the remaining two scales. All perpetrator items converge substantially and have similar item-total correlations. Furthermore, even though the loadings of the perpetrator items 1 through 4 on the observer factor are lower than the loadings of items 5 through 10, they still load substantially on this factor. Consistent with this pattern, a high correlation between the two perspectives was found at the level of traits. This correlation speaks to our third research goal and suggests that observer and perpetrator sensitivity have much in common. We had anticipated this communality based on the notion that the experience of injustice from a victim's perspective is qualitatively different than it is from a perpetrator's or an observer's perspective. One might argue that this difference was simply due to the fact that victims are more emotionally involved in the aversive aspects of injustice than observers and perpetrators. However, this interpretation would be based on the questionable assumption that justice sensitivity is more validly tapped by the victim scale than by the observer and the perpetrator scales. Contrary to this interpretation, we submit another possibility that will be tested in Study 2. We propose that justice sensitivity from a victim's perspective is not only an indicator of truly moral concerns but also an indicator of deprivation Justice Sensitivity 21 fear. Findings from evolutionary psychology suggest that humans have evolved sensitive perceptual tools for detecting loss and disadvantage (Cosmides & Tooby, 1992). Also, some studies have found that even a single instance of betrayal can alter a person's preferred strategy in social interaction: The probability of trustworthy, altruistic and fair behavior decreases, whereas self-protective and egoistic strategies become dominant (Axelrod, 1984). Given that individuals differ in how often they experience loss, disadvantage and betrayal, victim sensitivity might not only originate from genuine moral concerns but in addition reflect people’s alertness to deprivation and their willingness to employ self-protective and egoistic interpersonal strategies to prevent disadvantage. This conjecture implies that observer and perpetrator sensitivity reflect genuine moral concerns more purely than victim sensitivity does. Study 2 will test this interpretation. The results of the latent state-trait analysis are also consistent with our assumption that victim sensitivity is more closely related to observer sensitivity than to perpetrator sensitivity. Taken together, the predicted order of correlations among the sensitivity perspectives was confirmed both on the level of latent traits as well as on the level of latent state residuals. It was our fourth research goal to explore whether and how much occasion specific effects generalize across the three sensitivity perspectives. The latent state-trait analysis of our longitudinal data revealed that the degree of generalization is indeed substantial. The density and severity of unjust episodes a person encounters in any of the three possible roles seem to affect not only the person’s role congruent justice sensitivity but also his or her justice sensitivity from the remaining two perspectives. Consistent with the correlations among the sensitivity traits, the correlation of the latent stateresiduals was higher between the observer and perpetrator perspectives than between the victim and perpetrator perspectives. This pattern suggests, for example, that unjust events encountered in the observer role augment the person’s observer sensitivity and also his or her perpetrator sensitivity, but to a lesser extent than that person’s Justice Sensitivity 22 victim sensitivity. However, victim sensitivity does not seem to remain unaffected if the person has encountered justice-related events either as an observer or as a perpetrator. This pattern is consistent with the correlations among the traits and again suggests that all three perspectives reflect moral rigor, albeit to different degrees. Whereas observer and perpetrator sensitivity seem to reflect primarily moral consciousness, victim sensitivity seems to reflect both moral values and self-protective or perhaps even selfish concerns. Study 2 Study 2 was aimed at testing this interpretation by correlating the three justice sensitivity scales with personality traits that reflect self-related concerns (machiavellianism, paranoia, suspiciousness, vengeance, jealousy, interpersonal trust) versus other-related and prosocial concerns (role taking, empathy, social responsibility). If our “fear of betrayal” interpretation is correct, victim sensitivity should correlate positively with self-related concerns but not with prosocial concerns, whereas observer and perpetrator sensitivity should correlate positively with prosocial concerns but not with self-related concerns. In addition to testing these hypotheses, Study 2 also served to explore the discriminant validity of the three justice sensitivity scales vis à vis measures for other justice-related constructs. This seems important for the sake of scientific parsimony and for avoiding an inflation of scales that have only little discriminant (or incremental) validity. Finally, Study 2 was conducted to explore where the three justice sensitivity dispositions are located in the multivariate personality space. Method Samples The assessment of reference constructs occurred in three samples. Some constructs were measured in one sample only, others were assessed in two samples thus providing evidence on Justice Sensitivity 23 the replicability of correlations. Furthermore, some constructs were measured with different instruments in different samples thus providing evidence for the stability of correlations across samples and instruments. Sample 1. The first sample is identical with the sample used in Study 1. Data from the first occasion of measurement were taken because the sample was larger at Occasion 1 than at Occasion 2. Sample 2. A demographically heterogeneous sample of 295 participants was recruited by using a snowball strategy. Of the 295 participants, 150 were university students of various majors (no advanced psychology students), 2 were high-school students, 124 were adult citizens from various professions and 19 participants did not indicate their professional status. Of all participants, 103 were male and 190 female. Two participants did not indicate their gender. Ages ranged from 14 to 67 (M = 28.13, SD = 9.75). Sample 3. A third group of participants consisted of first-year psychology students from the University of Trier. Questionnaires were administered in introductory lectures within the first four weeks of the students' first university term. This was done three years in a row (2000, 2001, 2002). By accumulating questionnaires over these three years, a total of 669 cases are available for data analyses. A personal code was used to ensure that questionnaires were not answered twice by the same person. Of the 669 cases, 151 were male and 518 were female. Four-hundred seventy-two reported that psychology was their main subject. Ages ranged from 18 to 48 years (M = 22.02; SD = 3.48). Procedure The two measurement occasions of Study 1 were themselves short-term panels. The number of constructs included in the research project was so large that questionnaires had to be spread across time. As a consequence, some reference constructs that are of interest in the present context were measured at a later time than justice sensitivity. More specifically, role Justice Sensitivity 24 taking and empathy were measured one month later, machiavellianism two months later and social desirability four months later. Due to this procedure and different amounts of missing data, sample size varies across the correlations in Table 4. Cross-sectional designs were employed for the assessment of constructs in the second and third sample (all constructs were measured at the same time). As in Study 1, data collection was entirely anonymous in the second and third samples. In the first and third samples, the scales were presented in a fixed order. In the second sample, the order of scales varied randomly across individuals. Due to an omission error in the randomized composition of scales, the scale for one reference construct was answered by only 105 instead of 295 participants (Sense of Injustice; Trier Integrated Personality Inventory; Becker, 2003). In Sample 3 (student sample), some scales were not administered in all three years. For example, empathy was only included in the 2001 survey, whereas just world scales were always included. For this reason, sample size varies across constructs (Table 4). Assessment of Justice Sensitivity Justice sensitivity was measured in the second and third samples with the same scales that had been used in Study 1. Assessment of Self-Centered Concerns Machiavellianism. Machiavellianism was measured with a short scale of seven items that were adopted from two German Machiavellianism scales (Cloetta, 1983; Henning & Six, 1977). Items were selected and modified according to face validity criteria (Example: “If it helps in attaining a goal, one should not reveal one’s true motives.”). Paranoia. Paranoia was measured with a German translation of the Fenigstein and Vanable (1992) questionnaire. The scale contains 20 items (Example: “I believe that I have often been punished without cause.”). Justice Sensitivity 25 Vengeance. Vengeance was measured with a German translation of the Stuckless and Goranson (1992) questionnaire. The scale contains 20 items (Example: “Revenge is sweet.”). Jealousy. Jealousy was measured with a German translation of the Bringle, Roach, Andier and Evenbeck (1979) Self-report Jealousy Scale and a jealousy scale which had been developed by B. Bauer in collaboration with our research group (Schmitt, Falkenau and Montada, 1995). This Bringle et al. scale consists of four subscales pertaining to romantic or sexual jealousy (partner having an affair), envious jealousy (good friend being successful), justice related jealousy (someone getting something target deserves) and jealousy among siblings (sibling gets more parental attention). The Bauer scale was used because one of its subscales (jealousy towards family members of partner and jealousy towards good friends of partner) was found to have a higher construct validity as a measure of the generalized jealousy disposition than had the romantic/sexual jealousy subscale. Suspiciousness. This construct was measured with a German translation of the Browne and Howarth (1977) scale. It contains five items (Example: “I often wonder what hidden reason another person may have for doing something nice for me.”). Interpersonal Trust. A German adaptation (Krampen, Viebig & Walter, 1982) of Rotter’s (1967) Interpersonal Trust Scale was used. The German version contains 15 Items (Example: “Most salesmen are honest when they describe products.”). Justice Sensitivity 26 Assessment of Other-Centered Concerns Role Taking. Role Taking was measured with a German subscale of Davis’ (1983) Interpersonal Reactivity Index. The scale contains nine items (Example: “I sometimes find it difficult to see things from the ’other guy’s‘ point of view ”[R].). Empathy. Empathy was also measured with a German subscale of the Davis (1983) inventory. The scale contains nine items (Example: “Other people’s misfortunes do not usually disturb me a great deal ”[R].). Social Responsibility. This construct was assessed with a German translation of Berkowitz and Daniels' (1964) Social Responsibility Scale developed by Bierhoff (2000). Although a short scale is also available, the entire 22-item scale was used here (Examples: “It is always important to finish anything that you have started.” “I would never let a friend down when he expects something of me.”). Assessment of Other Justice Constructs Belief in a Just World. Belief in a just world was measured with the Dalbert, Montada and Schmitt (1987) scale. The scale contains six items (Example: “Basically the world is a just place.”). Belief in Immanent Justice. Belief in immanent justice is a specific facet of believing in justice (Maes, 1998). Immanent justice means that good deeds are rewarded and bad deeds punished rather immediately by powerful others or by fate. The scale contains six items (Example: “Good character is rewarded by good fortune.”). Belief in Ultimate Justice (Victims Compensated and Perpetrators Punished). Belief in ultimate justice is another specific facet of believing in justice (Maes, 1998). Ultimate justice means that victims will not be compensated immediately for an injustice they suffer but will eventually be compensated. Two sub-facets have been identified in previous research, belief that victims will eventually be compensated and belief that perpetrators will eventually be punished. Justice Sensitivity 27 Each scale contains six items (Examples: “The day will come where all victims will be compensated.” “Every crime will eventually be punished.”). Belief in an Unjust World. Belief in an Unjust World was identified in previous research as a dimension which is independent from the belief in a just world (Dalbert, Lipkus, Sallay & Goch, 2001). Our scale contains six items (Example: “Many people suffer a bad fate they have not deserved.”). Sense of Injustice. Sense of Injustice is a first order factor in Becker’s (2003) theory of personality and a facet of neuroticism. Sense of Injustice was measured with Becker’s scale which contains six items (Example: “If things go wrong I feel that everybody is against me.”). Assessment of Personality Factors Big Five Personality Factors. The constructs of the Five Factor Model of Personality were measured with two inventories, the German NEO-FFI (Borkenau & Ostendorf, 1993) and the German BFI (Lang, Lüdtke & Asendorpf, 2001). In addition, modesty and trust as two facets of the agreeableness factor were measured with the German NEO-PI-R (Ostendorf & Angleitner, in press). Eysenck Personality Factors. The three factors of the Eysenck personality model were measured with the German version of the EPQ-R (Ruch, in press). Assessment of Social Desirability Social desirability was measured with a German version of the Crowne and Marlowe Social Desirability Scale (Lück & Timaeus, 1969) and the Lie Scale of the EPQ-R (Ruch, in press). Justice Sensitivity 28 Results Table 4 contains the correlations among the three justice sensitivity scales and the scales for measuring the reference constructs. Table 4 also contains the internal consistency coefficients Alpha of the reference scales. Results will be discussed in the order in which the reference constructs were introduced and appear in Table 4 (top down). Table 4 Correlations between the Justice Sensitivity Constructs and Reference Constructs (Significant correlations (p < .05) in bold letters. Critical values differ due to differences in sample size among the three samples) Justice Sensitivity Sample (N) Validation Construct Alpha Victim Observer Perpetrator Self-Related Concerns 1 (1862) Machiavellianism .81 .25 .00 -.10 3 (204) Machiavellianism .73 .20 -.09 -.15 2 (295) Paranoia .89 .32 .17 .02 2 (295) Vengeance .90 .29 .06 -.12 2 (295) Jealousy (Bringle, Total Score) .92 .58 .19 .11 2 (295) Jealousy (Bringle, Romantic Jealousy) .77 .30 .08 .13 2 (295) Jealousy (Bringle, Envious Jealousy) .86 .50 .14 .04 2 (295) Jealousy (Bringle, Justice Related Jealousy) .81 .56 .23 .10 2 (295) Jealousy (Bringle, Jealousy Towards Sibling) .87 .46 .19 .06 2 (295) Jealousy (Bauer) .86 .35 .10 .11 2 (295) Suspiciousness .45 .13 .06 .05 2 (295) Interpersonal Trust .76 -.20 -.10 -.06 Other-Related Concerns 1 (2110) Role Taking .90 .03 .29 .33 3 (204) Role Taking .81 -.12 .20 .20 1 (2110) Empathy .88 .06 .45 .45 3 (204) Empathy .84 .05 .55 .38 3 (668) Social Responsibility .71 .06 .27 .22 Justice Sensitivity 29 Other Justice Constructs 1 (2484) Belief in a Just World .72 .06 .13 .11 3 (668) Belief in a Just World .70 -.04 -.04 -.02 1 (2484) Belief in Immanent Justice .56 .19 .13 .08 3 (668) Belief in Immanent Justice .50 .12 .06 .04 1 (2484) Belief in Ultimate Justice (Victims Compensated) .81 .15 .18 .13 3 (668) Belief in Ultimate Justice (Victims Compensated) .86 -.03 .11 .12 1 (2484) Belief in Ultimate Justice (Perpetrators Punished) .83 .12 .18 .16 3 (668) Belief in Ultimate Justice (Perpetrators Punished) .86 .05 .11 .17 1 (2484) Belief in an Unjust World .75 .37 .31 .23 3 (668) Belief in an Unjust World .72 .35 .22 .14 2 (105) Sense of Injustice .87 .50 .30 .02 Five Personality Factors (BFI) 2 (295) Extraversion .88 -.09 .12 .03 2 (295) Neuroticism .86 .24 .06 .08 2 (295) Conscientiousness .86 .00 .03 .07 2 (295) Agreeableness .71 -.09 .07 .18 2 (295) Openness .89 -.03 .09 .03 Five Personality Factors (NEO-FFI) 3 (128) Extraversion .81 -.15 .07 .02 3 (128) Neuroticism .84 .36 .20 .16 3 (128) Conscientiousness .83 -.11 -.11 -.03 3 (128) Agreeableness .72 -.19 .16 .19 3 (128) Openness .65 .02 .28 .04 Facets of the Five Personality Factors (NEO-PI-R) 2 (295) Modesty .72 -.13 .10 .33 2 (295) Trust .82 -.11 .02 .08 Eysenck Personality Factors (EPQ-R) 3 (129) Extraversion .85 -.15 .06 -.06 3 (129) Neuroticism .82 .30 .19 .04 3 (129) Psychoticism .74 -.02 -.10 -.15 Social Desirability 1 (1661) Social Desirability .78 -.25 .04 .12 3 (129) Lie Scale (EPQ-R) .76 .04 .07 .15 Justice Sensitivity 30 Discussion Self-Related Concerns. In line with our prediction, victim sensitivity correlates significantly with all self-concern constructs in the predicted direction. Correlations of these constructs with observer and perpetrator sensitivity are lower, or even negative, and mostly nonsignificant. Vengeance and machiavellianism have significant correlations with perpetrator sensitivity indicating that perpetrator sensitive individuals tend to not take revenge when they were attacked or harmed by someone else. They also tend not to manipulate others when such a manipulation would help in reaching their own goals. The high correlation between victim sensitivity and the Bringle et al. jealousy inventory raises concerns about the discriminant validity of the victim sensitivity scale. A closer look at the correlations between the jealousy subscales and justice sensitivity reveals a meaningful profile, however. High correlations were obtained for envious jealousy, justice related jealousy and jealousy toward siblings. Romantic jealousy and the Bauer scale correlate considerably lower with victim sensitivity. This pattern means that the overlap between jealousy and victim sensitivity is due to jealousy proneness in social comparison situations that give rise to justice considerations either indirectly (envy, siblings) or directly (justice related jealousy). If this interpretation of the correlation pattern is correct, doubts about the discriminant construct validity of the victim sensitivity scale do not seem justified. Other-Related Concerns. Again, consistent with our expectations, all prosocial orientations we included as validation constructs in Study 2 correlate in the predicted direction with observer and perpetrator sensitivity and higher than with victim sensitivity. The high correlations that were obtained for empathy are due to overlap in item content. Three of the empathy items describe reactions that are equivalent to those that we expect for justice sensitive individuals (“I often have tender, concerned feelings for people less fortunate than me.” “When I see someone being taken advantage of, I feel kind of protective towards them.” “When I see someone being Justice Sensitivity 31 treated unfairly, I sometimes don’t feel very much pity from them.” [R]). Consequently, the high correlations between empathy and justice sensitivity (observer, perpetrator) raise less doubt about the discriminant validity of the justice sensitivity scales than about the discriminant construct validity of the empathy measure. Other Justice Constructs. The correlations between the justice sensitivity scales and the belief in a just world measures are mostly low with the notable exception of belief in an unjust world. This component of the just world belief system correlates substantially with justice sensitivity and especially so with victim sensitivity. The pattern makes sense because individuals who are justice sensitive perceive more incidents of injustice and should therefore have a more pronounced belief in an unjust world than justice insensitive individuals. Nevertheless, even the correlations between justice sensitivity and belief in an unjust world are not high enough to suggest that justice sensitivity and belief in an unjust world are identical or very similar psychological phenomena. Most importantly, belief in a just world as a motivated perception (Lerner, 1980) overlaps only trivially with how strictly a person tends to be when judging the justice of events. The sense of injustice construct from Becker’s (2003) personality theory has a high correlation with victim sensitivity and a substantial correlation with observer sensitivity. These correlations speak to the convergent validity of the victim scale and to the differential validity of the three sensitivity scales in comparison to each other. Becker’s (2003) construct is most similar theoretically to our victim sensitivity construct. However, unlike our victim sensitivity construct, Becker’s sense of injustice construct does not contain the notion of moral rigor. Rather, it is focused both theoretically and in the way it is measured on the threatening and harmful implications of injustice and the person’s fear of these implications. The fact that the Becker scale correlates more highly with victim sensitivity than with observer sensitivity is consistent with our assumption that only victim sensitivity contains a self-defensive component whereas Justice Sensitivity 32 observer sensitivity does not. Broad Personality Factors. The interpretations we have offered so far are supported by the pattern of correlations between justice sensitivity and broad personality factors. Table 4 shows that only one correlation among the three justice sensitivity perspectives and scales for broad personality factors is consistent across all samples and instruments: the correlation between victim sensitivity and neuroticism. Victim sensitive individuals are emotionally vulnerable and this vulnerability makes them monitor their environment carefully for threats to their emotional integrity. Unfair treatment is such a threat. However, the correlation between neuroticism and victim sensitivity is not large enough to imply that both dispositions are psychologically identical or highly similar. Rather, the size of the correlation suggests in combination with the correlation of victim sensitivity with observer and perpetrator sensitivity that victim sensitivity has two components, a self-defensive component and a genuine moral component. A second correlation between justice sensitivity and the big five personality factors deserves attention: the correlation between perpetrator sensitivity and agreeableness. This correlation is positive and means that perpetrator sensitive individuals are considerate in social interaction and less unlikely to provoke conflicts than perpetrator insensitive individuals. On the contrary, the negative correlation between agreeableness and victim sensitivity found in Sample 3 suggests that those who feel exploited easily tend to complain and thereby strain the quality of social relations. Altogether, the correlations between justice sensitivity and the broad personality factors that we measured are small and raise no concerns whatsoever about the discriminant validity of our justice sensitivity scales. This finding is not surprising, however, because victim, observer and perpetrator sensitivity are small traits. It might be, therefore, that they are more closely associated with some lower order factors of the big five system. Big Five Facets. This possibility was explored by including modesty and trust as those two Justice Sensitivity 33 facets of the big five personality model that we consider theoretically most similar to observer and perpetrator sensitivity. Table 4 confirms this assumption for modesty but not for trust. Although the pattern of correlations that was obtained for trust is descriptively meaningful, none of the correlations differed significantly from zero. By contrast, significant correlations were obtained for modesty. The negative correlation with victim sensitivity points to the self-interest component of this type of sensitivity. The positive correlation between modesty and perpetrator sensitivity may mean that perpetrator sensitive individuals have a low self-interest orientation in comparison to their high prosocial orientation. Social desirability. Table 4 reveals two significant correlations between social desirability and self-reported justice sensitivity. Consistent with the social undesirability of complaining, a negative correlation between victim sensitivity and social desirability was obtained. This correlation may mean that victim sensitive individuals put more weight on avoiding unfair disadvantage than on being socially approved. The contrary seems to be the case for perpetrator sensitive individuals. A small part of their motivation to stay away from exploiting others is their desire for social approval. However, both correlations are not large enough to raise concerns about the construct validity of our justice sensitivity scales. General Discussion Short scales for the assessment of justice sensitivity from three perspectives were developed. High reliabilities, substantial trait consistencies, considerable occasion specificities and very low method specificities were found for all three scales by means of a latent state-trait analysis in Study 1. Despite the high convergence among the items within each scale, observer items and perpetrator items could not be discriminated well in an exploratory factor analysis. Consistent with this result, observer and perpetrator traits were highly correlated and the same was true for their latent state residuals. The large overlap among observer sensitivity and Justice Sensitivity 34 perpetrator sensitivity can be interpreted as evidence that moral concerns and moral rigor are the common factor of both sensitivities. This interpretation received support from the pattern of correlations that were obtained in Study 2 between the justice sensitivity scales and the scales for the reference constructs. Whereas observer and perpetrator sensitivity were highly correlated with other-related concerns, victim sensitivity was more closely associated with self-related concerns. Furthermore, only victim sensitivity correlated with neuroticism. The entire correlational pattern suggests that observer and perpetrator sensitivity reflect justice concerns more purely than does victim sensitivity. Victim sensitivity seems to be a mixture of moral concerns and self-protective or even egoistic motivation. This conclusion is not only consistent with the results of the present research, it also supports the results of a study conducted by Fetchenhauer and Huang (in press). These authors measured their participants’ justice sensitivity with our scales and later involved them in an ultimatum game, a dictator game, and a mixture of both games (Güth, Schmittberger & Schwarze, 1982). In line with the correlational pattern of our research, Fetchenhauer and Huang (in press) found that fair behavior correlated positively with observer and perpetrator sensitivity. By contrast, victim sensitive individuals tended to make unequal offers in the role of A and were more inclined to opportunistic behavior (e.g., offering less to B in the dictator than in the ultimatum game) than were victim insensitive participants. Given the substantial correlational overlap between observer sensitivity and perpetrator sensitivity and the very similar pattern of their correlations with reference constructs, the question arises as to whether both types of sensitivity are distinct at all. From a pragmatic point of view, it is certainly justified to merge both constructs on a higher level of abstractness and merge the scales as well. Nevertheless, the results from the present research and from the Fetchenhauer and Huang (in press) research provide considerable evidence that both traits are not identical and their scales not interchangeable. This conclusion is based on several Justice Sensitivity 35 observations. First, the correlation among the observer and perpetrator sensitivity traits and their latent state residuals correlated highly but not perfectly in the latent state-trait analysis of Study 1. Constraining either of these two correlations to 1 decreases model fit significantly. Second, the correlations of the two sensitivity scales differ significantly regarding modesty, vengeance and sense of injustice. Third, although observer and perpetrator sensitivity had similar correlations with participants’ behavior in ultimatum and dictator games, some correlations differed significantly, and these differences were meaningful (Fetchenhauer and Huang, in press). Taken together, considerable evidence on the construct validity of our justice sensitivity scales has been obtained in previous research and the present studies. It seems justified to use the scales in future research. Several research projects have been initiated. First, we are interested in understanding the mediating cognitive processes that connect justice sensitivity with behavior. One study will look at personality congruent attention as a mediator. We assume that unjust events have, like all negative events, attention grabbing power and that justice sensitive individuals will be attracted more easily by justice related information due to the chronic activation of the justice concept. A second study will explore a personality congruent information search. We assume that injustice is the default hypothesis of justice sensitive individuals when they encounter situations that are ambiguous with regard to justice. Due to the general confirmation bias (Nickerson, 1998), justice sensitive individuals will therefore actively collect more information that confirms their hypothesis than information that would disprove it. Second, we want to provide more evidence that justice sensitivity predicts behavior. So far, this evidence has been provided almost exclusively for the victim perspective (Schmitt, 1996). Only scattered evidence is available regarding effects of observer and perpetrator sensitivity on behavior (Fetchenhauer & Huang, in press; Montada et al., 1986; Montada & Schneider, 1989). In one study, we will measure support for refugees as a criterion behavior. We assume that this Justice Sensitivity 36 type of prosocial action can be predicted better from observer and perpetrator sensitivity than from victim sensitivity. In a second study, we want to explore links between justice sensitivity and retaliation. Because victim sensitivity correlates with vengeance it would be interesting to explore whether victim-sensitive individuals engage more easily in vengeful actions than insensitive individuals. This question will be addressed in a standardized game paradigm. A third study will test whether justice sensitivity predicts resistance to temptation. This study will be a vignette study aimed at scrutinizing the difference in predictive validity between the observer and the perpetrator scale: We assume that the perpetrator score of justice sensitivity can actually predict refraining from an enticing, but unlawful action better than does the observer score, and that this behavior can be traced back to moral concerns about the rightfulness of the action. Third, we want to explore in more depth how the three sensitivity traits correlate with emotional reactions to unjust events. Using films as stimuli, we want to find out whether anger, moral outrage and guilt as perspective congruent emotions can indeed be predicted best by the corresponding type of sensitivity. Films will differ in the role the core protagonist – with whom many perceivers tend to identify – plays in a justice episode. More specifically, we will present films in which protagonists are portrayed as victims, as observers or as perpetrators. We expect that observing the films will activate the role congruent sense of injustice and that this activation will covary more with the corresponding justice sensitivity than with the remaining two sensitivities. Finally, we would like to invite international readers to translate our scales into their native languages and cooperate with us in cross-cultural research. At this point, we do not have specific hypotheses on cultural differences, but some readers might. Testing these hypotheses might shed light on the origins of individual differences in justice sensitivity. Justice Sensitivity 37 References Axelrod, R. (1984). The evolution of cooperation. New York: Basic Books. Becker, P. (2003). Trierer Integriertes Persönlichkeitsinventar. Göttingen: Hogrefe. Berkowitz, L., & Daniels, L. R. (1964). Affecting the salience of the social responsibility norm: Effects of past help on the response to dependency relationships. Journal of Abnormal and Social Psychology, 68, 275-281. Bierhoff, H. W. (2000). Skala der sozialen Verantwortung nach Berkowitz und Daniels: Entwicklung und Validierung [The Berkowitz and Daniels social responsibility scale: Development and validation]. Diagnostica, 46, 18-28. Borkenau, P., & Ostendorf, F. (1993). NEO-Fünf-Faktoren-Inventar nach Costa und McCrae – Deutsche Fassung [NEO-Five-Factor-Inventory – German Version]. Göttingen: Hogrefe. Bringle, R. G., Roach, S., Andier, C., & Evenbeck, S. (1979). Measuring the intensity of jealous reactions. Catalog of selected Documents in Psychology, 5, 23-24. Browne, J. A., & Howarth, E. (1977). A comprehensive factor analysis of personality questionnaire items: A test of twenty putative factor hypotheses. Multivariate Behavioral Research, 12, 339-427. Cloetta, B. (1983). Der Fragebogen zur Erfassung von Machiavellismus und Konservatismus [Machiavellianism and Conservatism Scales]. Schweizerische Zeitschrift für Psychologie, 42, 127-159. Cosmides, L., & Tooby, J. (1992). Cognitive adaptations for social exchange. In J. Barkow, L. Cosmides & J. Tooby (Eds.). The adapted mind (pp. 163-228). New York: Oxford University Press. Dalbert, C., Lipkus, I. M., Sallay, H., & Goch, I. (2001). A just and an unjust world: Structure and validity of different world beliefs. Personality and Individual Differences, 30, 561- 577. Justice Sensitivity 38 Dalbert, C., Montada, L., & Schmitt, M. (1987). Glaube an eine gerechte Welt als Motiv: Validierungskorrelate zweier Skalen [Belief in a just world as a motive: Validity correlates of two scales]. Psychologische Beiträge, 29, 596-615. Dar, Y., & Resh, N. (2001). Exploring the multifaceted structure of sense of deprivation. European Journal of Social Psychology, 31, 63-81. Dar, Y., & Resh, N. (2003). Social disadvantage and students’ perceived injustice in socially integrated schools in Israel. Social Justice Research, 16, 109-133. Davis, M. H. (1983). Measuring individual differences in empathy: Evidence for a multidimensional approach. Journal of Personality and Social Psychology, 44, 113-126. Deinzer, R., Steyer, R., Eid, M., Notz, P., Schwenkmezger, P., Ostendorf, F., & Neubauer, A. (1995). Situational effects in trait assessment: The FPI, NEOFFI and EPI Questionnaires. European Journal of Personality, 9, 1-23. Eid, M. (2000). A multitrait-mulitmethod model with minimal assumptions. Psychometrika, 65, 241-261. Fahrenberg, J., Hampel, R., & Selg, H. (1989). Das Freiburger Persönlichkeitsinventar FPI (5., ergänzte Auflage) [Freiburg Personality Inventory, 5th Edition]. Göttingen: Hogrefe. Fenigstein, A., & Vanable, P. A. (1992). Paranoia and Self-Consciousness. Journal of Personality and Social Psychology, 62, 129-138. Fetchenhauer, D., & Huang, X. (in press). Justice sensitivity and behavior in experimental games. Personality and Individual Differences. Frenkel-Brunswik, E. (1949). Intolerance of ambiguity as an emotional and perceptional personality variable. Journal of Personality, 18, 108-143. Gray, J. A. (1970). The psychophysiological basis of introversion-extraversion. Behavior Research and Therapy, 8, 249-266. Güth, W., Schmittberger, R., & Schwarze, B. (1982). An experimental analysis of ultimatum Justice Sensitivity 39 games. Journal of Economic Behavior and Organization, 3, 367-388. Gurr, T. R. (1970). Why men rebel. Princeton, NJ: Princeton University Press. Harvey, R. D., & Oswald, D. L. (2000). Collective guilt and shame as motivation for White support of Black programs. Journal of Applied Social Psychology, 30, 1790-1811. Henning, H. J., & Six, B. (1977). Konstruktion einer Machiavellismus-Skala [Construction of a Machiavellianism Scale]. Zeitschrift für Sozialpsychologie, 8, 185-198. Hoffman, M. L. (2000). Empathy and moral development: Implications for caring and justice. New York, NY: Cambridge University Press. Huseman, R. C., Hatfield, J. D., & Miles, E. W. (1987). A new perspective on equity theory: The equity sensitivity construct. Academy of Management Review, 12, 222-234. Huseman, R. C., Hatfield, J. D., & Miles, E. W. (1985). Test for individual perceptions of job equity: Some preliminary findings. Perceptual and Motor Skills, 61, 1055-1064. Krampen, G., Viebig, J., & Walter, W. (1982). Entwicklung einer Skala zur Erfassung dreier Aspekte von sozialem Vertrauen [Construction of a scale for measuring three components of interpersonal trust]. Diagnostica, 28, 242-247. Lang , F. R., Lüdtke, O., & Asendorpf, J. B. (2001). Testgüte und psychometrische Äquivalenz der deutschen Version des Big Five Inventory (BFI) bei jungen, mittelalten und alten Erwachsenen [Quality and psychometric equivalence of a German version of the Big Five Inventory in young, middle, and old adults]. Diagnostica, 47, 111-121. Larsen, R. J., & Diener, D. (1987). Affect intensity as an individual difference characteristic: A review. Journal of Research in Personality, 51, 803-814. Lerner, M. J. (1980). The belief in a just world. A fundamental delusion. New York: Plenum Press. Lord, F. M., & Novick, M. R. (1968). Statistical theories of mental test scores. Reading, MA: Addison-Wesley. Justice Sensitivity 40 Lovas, L. (1995). Nespravodlivost v interpersonalnych vztahoch [Injustice in interpersonal relations]. Ceskoslovenska Psychologie, 34, 203-212. Lovas L., & Pirhacova, I. (1996). Anxieta, hnevlivost a senzitivita voci nespravodlivosti [Anxiety, anger, and sensitivity to injustice]. Ceskoslovenska Psychologie, 40, 248-255. Lovas, L., & Wolt, R. (2002). Sensitivity to injustice in the context of some personality traits. Studia Psychologica, 44, 125-131. Lück, H. E., & Timaeus, E. (1969). Skalen zur Messung Manifester Angst (MAS) und sozialer Wünschbarkeit (SDS-E und SDS-CM) [Manifest anxiety and social desirabiliy scales]. Diagnostica, 15, 134-141. Maes, J. (1998). Immanent justice and ultimate justice: Two ways of believing in justice. In L. Montada & M. J. Lerner (Eds.), Responses to victimization and belief in a just world (pp. 9-40). New York: Plenum Press. Manuck, S. B., Kasprowicz, A. L., Monroe, S. M., Larkin, K. T., & Kaplan, J. R. (1989). Psychophysiologic reactivity as a dimension of individual differences. In N. Schneiderman, S. M. Weiss, & P. G. Kaufmann (Eds.), Handbook of research methods in cardiovascular behavioral medicine (pp. 365-382). New York: Plenum Press. Mikula, G. (1994). Perspective-related differences in interpretations of injustice by victims and victimizers: A test with close relationships. In M. J. Lerner & G. Mikula (Eds.), Entitlement and the affectional bond (pp. 175-203). New York: Plenum. Mikula, G., Scherer, K. R., & Athenstaedt, U. (1998). The role of injustice in the elicitation of differential emotional reactions. Personality and Social Psychology Bulletin, 24, 769-783. Miller, D. T. (2001). Disrespect and the experience of injustice. Annual Review of Psychology, 52, 527-553. Mohiyeddini, C. (1998). Sensibilität für widerfahrene Ungerechtigkeit als Persönlichkeitseigenschaft [Justice sensitivity (victim) as a personality trait]. In B. Reichle Justice Sensitivity 41 & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral [Responsibility, justice, and morality] (S. 201-212). Weinheim: Juventa. Mohiyeddini, C., & Schmitt, M. (1997). Sensitivity to befallen injustice and reactions to unfair treatment in a laboratory situation. Social Justice Research, 10, 333-352. Montada, L. (1993). Understanding oughts by assessing moral reasoning or moral emotions. In G. Noam & T. Wren (Eds.), The moral self (pp. 292-309). Boston: MIT-Press. Montada, L., Schmitt, M., & Dalbert, C. (1986). Thinking about justice and dealing with one's own privileges: A study of existential guilt. In H. W. Bierhoff, R. L. Cohen, & J. Greenberg (Eds.), Justice in social relations (pp. 125-143). New York: Plenum Press. Montada, L., & Schneider, A. (1989). Justice and emotional reactions to the disadvantaged. Social Justice Research, 3, 313-344. Mummendey, A., Linneweber, V., & Löschper, G. (1984). Actor or victim of aggression: Divergent perspectives - divergent evaluations. European Journal of Social Psychology, 14, 297-311. Nickerson, R. S. (1998). Confirmation bias: A ubiquitous phenomenon in many guises. Review of General Psychology, 2, 175-220. Ostendorf, F., & Angleitner, A. (in press). NEO-PI-R. NEO Persönlichkeitsinventar, revidierte Form [NEO-PI-R – revised German version]. Göttingen: Hogrefe. Rime, B., Philippot, P., Boca, S., & Mesquita, B. (1992). Long-lasting cognitive and social consequences of emotion: Social sharing and rumination. In W. Stroebe & M. Hewstone (Eds.), European review of social psychology (Vol. 3., pp. 225-258). Chichester: Wiley. Rollman, G. B., & Harris, G. (1987). The detectability, discriminability, and perceived magnitude of painful electrical shock. Perception and Psychophysics, 42, 257-268. Rosenzweig, S. (1978). Aggressive behavior and the Rosenzweig Picture-Frustration Study. New York: Praeger. Justice Sensitivity 42 Rotter, J. B. (1967). A new scale for the measurement of interpersonal trust. Journal of Personality, 35, 651-665. Ruch, W. (in press). Eysenck Personality Questionnaire Form R (EPQ-R). Göttingen: Hogrefe. Schmitt, M. (1996). Individual differences in sensitivity to befallen injustice. Personality and Individual Differences, 21, 3-20. Schmitt, M., Bäuerle, C., Dohmke, E., Eckmann, J., Ganseforth, A., Gartelmann, A., Mosthaf, U., Siebert, G., & Wiedemann, R. (1989). Zur Differenzierung von Existentieller Schuld und Mitleid über Verantwortlichkeitsinduktion: Ein Filmexperiment [Differentiating existential guilt and pity via responsibility attribution: A film experiment]. Zeitschrift für experimentelle und angewandte Psychologie, 36, 274-291. Schmitt, M., Behner, R., Montada, L., Müller, L., & Müller-Fohrbrodt, G. (2000). Gender, ethnicity, and education as privileges: Exploring the generalizability of the existential guilt reaction. Social Justice Research, 13, 313-337. Schmitt, M., & Dörfel, M. (1999). Procedural injustice at work, justice sensitivity, job satisfaction and psychosomatic well-being. European Journal of Social Psychology, 29, 443-453. Schmitt, M., Falkenau, K., & Montada, L. (1995). Zur Messung von Eifersucht über stellvertretende Emotionsbegriffe und zur Bereichsspezifizität der Eifersuchtsneigung [Domain specificity and measurement of jealousy via vicarious emotions]. Diagnostica, 41, 131-149. Schmitt, M., & Maes, J. (2002). Stereotypic ingroup bias as self-defense against relative deprivation: Evidence from a longitudinal study of the German unification process. European Journal of Social Psychology, 32, 309-326. Schmitt, M., & Mohiyeddini, C. (1996). Sensitivity to befallen injustice and reactions to a real life disadvantage. Social Justice Research, 9, 223-238. Justice Sensitivity 43 Schmitt, M., Neumann, R., & Montada, L. (1995). Dispositional sensitivity to befallen injustice. Social Justice Research, 8, 385-407. Shaver, K. G. (1985). The attribution of blame. Causality, responsibility, and blameworthiness. New York: Springer. Solomon, R. C. (1976). The passions. New York: Anchor. Stevens, S. S. (1975). Psychophysics: Introduction to its perceptual, neural, and social prospects. New York: Wiley. Steyer, R., Ferring, D., & Schmitt, M. (1992). States and traits in psychological assessment. European Journal of Psychological Assessment, 2, 79-98. Steyer, R., Schmitt, M., & Eid, M. (1999). Latent state-trait theory and research in personality and individual differences. European Journal of Personality, 13, 389-408. Strelau, J. (1996). The regulative theory of temperament: Current status. Personality and Individual Differences, 20, 131-142. Stuckless, N., & Goranson, R. (1992). The vengeance scale: Development of a measure of attitudes toward revenge. Journal of Social Behavior and Personality, 7, 25-42. Törestad, B. (1990). What is anger provoking? A psychophysical study of perceived causes of anger. Aggressive Behavior, 16, 9- 26. Törnblom, K. Y. (1992). The social psychology of distributive justice. In K. Scherer (Ed.), Justice: Interdisciplinary perspectives (pp. 175-236). Cambridge: Cambridge University Press. van den Bos, K., Maas, M., Waldring, I., & Semin, G. P. (2003). Toward understanding the psychology of reactions to perceived fairness: The role of affect intensity. Social Justice Research, 16, 151-168. Vidmar, N. (2000). Retribution and revenge. In J. Sanders & V. L. Hamilton (Eds.), Handbook of justice research in law (pp. 31-63). New York: Kluwer Academic/Plenum Publishers. Justice Sensitivity 44 Bisher erschienene Arbeiten dieser Reihe 1978 Montada, L. (1978). Schuld als Schicksal? Zur Psychologie des Erlebens moralischer Verantwortung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 1). Trier: Universität Trier, Fachbereich I - Psychologie. Doenges, D. (1978). Die Fähigkeitskonzeption der Persönlichkeit und ihre Bedeutung für die Moralerziehung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 2). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1978). Moralerziehung und die Konsistenzproblematik in der Differentiellen Psychologie (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 3). Trier: Universität Trier, Fachbereich I - Psychologie. 1980 Montada, L. (1980). Spannungen zwischen formellen und informellen Ordnungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 4). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C. (1980). Verantwortlichkeit und Handeln (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 5). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M. (1980). Person, Situation oder Interaktion? Eine zeitlose Streitfrage diskutiert aus der Sicht der Gerechtigkeitsforschung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 6). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M. & Montada, L. (1981). Entscheidungsgegenstand, Sozialkontext und Verfahrensregel als Determinanten des Gerechtigkeitsurteils (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 7). Trier: Universität Trier, Fachbereich I - Psychologie. 1981 Montada, L. (1981). Entwicklung interpersonaler Verantwortlichkeit und interpersonaler Schuld. Projektantrag an die Stiftung Volkswagenwerk (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 8). Trier: Universität Trier, Fachbereich I - Psychologie. 1982 Schmitt, M. (1982). Empathie: Konzepte, Entwicklung, Quantifizierung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 9). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C. (1982). Der Glaube an die gerechte Welt: Zur Güte einer deutschen Version der Skala von Rubin & Peplau (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 10). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M. (1982). Zur Erfassung des moralischen Urteils: Zwei standardisierte objektive Verfahren im Vergleich (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 11). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M. (1982). Über die Angemessenheit verschiedener Analyse-Modelle zur Prüfung dreier Typen von Hypothesen über multivariate Zusammenhänge in Handlungsmodellen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 12). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C. (1982). Ein Strukturmodell interpersonaler Verantwortlichkeit erwachsener Töchter ihren Müttern gegenüber (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 13). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 45 Schmitt, M., Dalbert, C. & Montada, L. (1982). Interpersonale Verantwortlichkeit erwachsener Töchter ihren Müttern gegenüber: Rekrutierung der Ausgangsstichprobe, Erhebungsinstrumente in erster Version und Untersuchungsplan (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 14). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Dalbert, C. & Schmitt, M. (1982). Interpersonale Verantwortlichkeit erwachsener Töchter ihren Müttern gegenüber: Hypothesen über Zusammenhänge innerhalb der Kernvariablen und zwischen Kernvariablen und Kovariaten (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 15). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C., Schmitt, M. & Montada, L. (1982). Überlegungen zu Möglichkeiten der Erfassung von Schuldkognitionen und Schuldgefühlen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 16). Trier: Universität Trier, Fachbereich I - Psychologie. 1983 Schmitt, M. & Gehle, H. (1983). Interpersonale Verantwortlichkeit erwachsener Töchter ihren Müttern gegenüber: Verantwortlichkeitsnormen, Hilfeleistungen und ihre Korrelate - ein Überblick über die Literatur (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 17). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Reichle, B. (1983). Existentielle Schuld: Explikation eines Konzeptes (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 18). Trier: Universität Trier, Fachbereich I - Psychologie. Reichle, B. & Dalbert, C. (1983). Kontrolle: Konzepte und ausgewählte Bezüge zu existentieller Schuld (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 19). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Schmitt, M. & Dalbert, C. (1983). Existentielle Schuld: Rekrutierung der Untersuchungsstichprobe, Erhebungsinstrumente und Untersuchungsplan (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 20). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C., Schmitt, M. & Montada, L. (1983). Existentielle Schuld: Ausgewählte Untersuchungshypothesen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 21). Trier: Universität Trier, Fachbereich I - Psychologie. Kreuzer, C. & Montada, L. (1983). Vorhersage der Befriedigung wahrgenommener Bedürfnisse der eigenen Eltern: Ergebnisse einer Pilotstudie (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 22). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Dalbert, C. & Montada, L. (1983). Interpersonale Verantwortlichkeit erwachsener Töchter ihren Müttern gegenüber: Ergebnisse der Item- und Skalenanalysen (erster Untersuchungszeitraum) (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 23). Trier: Universität Trier, Fachbereich I - Psychologie. 1984 Dalbert, C., Montada, L., Schmitt, M. & Schneider, A. (1984). Existentielle Schuld: Ergebnisse der Item- und Skalenanalysen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 24). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Montada, L. & Dalbert, C. (1984). Erste Befunde zur Validität des Konstruktes Existentielle Schuld (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 25). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 46 Montada, L. (1984). Feindseligkeit - Friedfertigkeit (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 26). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Boll, T. (1984). Moralisches Urteil und moralisches Handeln (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 27). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C. & Schmitt, M. (1984). Einige Anmerkungen und Beispiele zur Formulierung und Prüfung von Moderatorhypothesen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 28). Trier: Universität Trier, Fachbereich I - Psychologie. 1985 Schmitt, M., Dalbert, C. & Montada, L. (1985). Drei Wege zu mehr Konsistenz: Theoriepräzisierung, Korrespondenzbildung und Datenaggregierung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 29). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C., Montada, L. & Schmitt, M. (1985). Bereichsspezifischer und allgemeiner Glaube an die Gerechte Welt: Kennwerte und erste Befunde zur Validität zweier Skalen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 30). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Dalbert, C. & Montada, L. (1985). Beabsichtigung und Ausführung prosozialen Handelns: Merkmals- versus Handlungstheorie? (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 31). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Schmitt, M. & Dalbert, C. (1985). Thinking about justice and dealing with one's own privileges: A study on existential guilt (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 32). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Dalbert, C. & Montada, L. (1985). Personale Normen und prosoziales Handeln: Kritische Anmerkungen und eine empirische Untersuchung zum Modell von S.H. Schwartz (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 33). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C., Schmitt, M. & Montada, L. (1985). Disdain of the disadvantaged: The role of responsibility denial and belief in a just world (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 34). Trier: Universität Trier, Fachbereich I - Psychologie. Reichle, B., Montada, L. & Schneider, A. (1985). Existentielle Schuld: Differenzierung eines Konstrukts (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 35). Trier: Universität Trier, Fachbereich I - Psychologie. 1986 Schneider, A., Reichle, B. & Montada, L. (1986). Existentielle Schuld: Stichprobenrekrutierung, Erhebungsinstrumente und Untersuchungsplan (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 36). Trier: Universität Trier, Fachbereich I - Psychologie. Schneider, A., Montada, L., Reichle, B. & Meissner, A. (1986). Auseinandersetzung mit Privilegunterschieden und existentieller Schuld: Item- und Skalenanalysen I (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 37). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 47 Montada, L. (1986). Life stress, injustice, and the question "Who is responsible?" (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 38). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C. (1986). Einige Anmerkungen zur Verwendung unterschiedlicher Veränderungskriterien (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 39). Trier: Universität Trier, Fachbereich I - Psychologie. 1987 Montada, L. (1987). Die Bewältigung von "Schicksalsschlägen" - erlebte Ungerechtigkeit und wahrgenommene Verantwortlichkeit (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 40). Trier: Universität Trier, Fachbereich I - Psychologie. Schneider, A., Meissner, A., Montada, L. & Reichle, B. (1987). Validierung von Selbstberichten über Fremdratings (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 41). Trier: Universität Trier, Fachbereich I - Psychologie. 1988 Dalbert, C., Steyer, R. & Montada, L. (1988). Die konzeptuelle Differenzierung zwischen Emotionen mit Hilfe von Strukturgleichungsmodellen: Existentielle Schuld und Mitleid (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 42). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1988). Schuld wegen Wohlstand? (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 43). Trier: Universität Trier, Fachbereich I - Psychologie. Schneider, A. (1988). Glaube an die gerechte Welt: Replikation der Validierungskorrelate zweier Skalen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 44). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1988). Schuld und Sühne in strafrechtlicher und psychologischer Beurteilung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 45). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C., Montada, L. & Schmitt, M. (1988). Intention and ability as predictors of change in adult daughters' prosocial behavior towards their mothers (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 46). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Schneider, A. (1988). Justice and emotional reactions to victims (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 47). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Bäuerle, C., Dohmke, E., Eckmann, J., Ganseforth, A., Gartelmann, A., Mosthaf, U., Siebert, G. & Wiedemann, R. (1988). Existentielle Schuld und Mitleid: Ein experimenteller Differenzierungsversuch anhand der Schadensverantwortlichkeit (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 48). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Schneider, A. & Meissner, A. (1988). Blaming the victim: Schuldvorwürfe und Abwertung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 49). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Figura, E. (1988). Some psychological factors underlying the request for social isolation of Aids victims (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 50). Trier: Universität Trier, Fachbereich I - Psychologie. 1989 Montada, L. (1989). Möglichkeiten der Kontrolle von Ärger im Polizeidienst (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 51). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 48 1990 Montada, L. & Schneider, A. (1990). Coping mit Problemen sozial Schwacher: Annotierte Ergebnistabellen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 52). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Dalbert, C. & Schneider, A. (1990). Coping mit Problemen sozial schwacher Menschen. Ergebnisse der Längsschnittuntersuchung (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 53). Trier: Universität Trier, Fachbereich I – Psychologie. Elbers, K. & Montada, L. (1990). Schutz vor AIDS in neuen Partnerschaften. Dokumentation der Untersuchung und Untersuchungsergebnisse (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 54). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Hermes, H. & Schmal, A. (1990). Ausgrenzung von AIDS-Opfern: Erkrankungsängste oder Vorurteile gegenüber Risikogruppen (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 55). Trier: Universität Trier, Fachbereich I – Psychologie. Gehri, U. & Montada, L. (1990). Schutz vor AIDS: Thematisierung in neuen Partnerschaften (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 56). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Albs, B. (1990). Emozionale Bewertung von Verlusten und erfolgreiche Bewältigung bei Unfallopfern (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral” Nr. 57). Trier: Universität Trier, Fachbereich I – Psychologie. Schmitt, M., Kilders, M., Mösle, A., Müller, L., Pfrengle, A., Rabenberg, H., Schott, F., Stolz, J., Suda, U., Williams, M. & Zimmermann, G. (1990). Validierung der Skala Allgemeiner Gerechte-Welt-Glaube über ein Glücksspielexperiment (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 58). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Bräunling, S., Burkard, P., Jakobi, F., Kobel, M., Krämer, E., Michel, K., Nickel, C., Orth, M., Schaaf, S. & Sonntag, T. (1990). Schicksal, Gerechte-Welt-Glaube, Verteilungsgerechtigkeit und Personbewertung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 59). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Montada, L. & Dalbert, C. (1990). Struktur und Funktion der Verantwortlichkeitsabwehr (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 60). Trier: Universität Trier, Fachbereich I - Psychologie. 1991 Schmitt, M., Hoser, K. & Schwenkmezger, P. (1991). Ärgerintensität und Ärgerausdruck infolge zugeschriebener Verantwortlichkeit für eine Anspruchsverletzung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 61). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1991). Grundlagen der Anwendungspraxis (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 62). Trier: Universität Trier, Fachbereich I - Psychologie. 1992 Maes, J. (1992). Abwertung von Krebskranken - Der Einfluß von Gerechte-Welt- und Kontrollüberzeugungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 63). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 49 Maes, J. (1992). Konstruktion und Analyse eines mehrdimensionalen Gerechte-Welt- Fragebogens (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 64). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1992). Attributsverknüpfungen - Eine neue Art der Erfassung von Gerechtigkeitsüberzeugungen? (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 65). Trier: Universität Trier, Fachbereich I - Psychologie. Janetzko, E. & Schmitt, M. (1992). Verantwortlichkeits- und Schuldzuschreibungen bei Ost- und Westdeutschen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 66). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Neumann, R. & Montada, L. (1992). Sensitivity to experienced injustice: Structural equation measurement and validation models (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 67). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Behner, R., Müller, L. & Montada, L. (1992). Werte, existentielle Schuld und Hilfsbereitschaft gegenüber Indios und landlosen Bauern in Paraguay (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 68). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Janetzko, E., Große, K., Haas, J., Jöhren, B., Lachenmeir, K., Menninger, P., Nechvatal, A., Ostner, J., Rauch, P., Roth, E. & Stifter, R. (1992). Verantwortlichkeits- und Schuldzuschreibungen: Auto- und Heterostereotype Ost- und Westdeutscher (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 69). Trier: Universität Trier, Fachbereich I - Psychologie. 1993 Schmitt, M. (1993). Abriß der Gerechtigkeitspsychologie (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 70). Trier: Universität Trier, Fachbereich I - Psychologie. 1994 Schmitt, M. J., Montada, L. & Falkenau, K. (1994). Modellierung der generalisierten und bereichsspezifischen Eifersuchtsneigung mittels Strukturgleichungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 71). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Kals, E. (1994). Perceived Justice of Ecological Policy and Proenvironmental Commitments (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 72). Trier: Universität Trier, Fachbereich I - Psychologie. Kals, E. & Becker, R. (1994). Zusammenschau von drei umweltpsychologischen Untersuchungen zur Erklärung verkehrsbezogener Verbotsforderungen, Engagementbereitschaften und Handlungsentscheidungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 73). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1994). Korrelate des Gerechte-Welt-Glaubens: Ergebnisse aus einer Untersuchung zur Wahrnehmung von Krebskrankheiten und Krebskranken (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 74). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Maes, J. & Neumann, R. (1994). Gerechtigkeit als innerdeutsches Problem: Skizze eines Forschungsvorhabens (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 75). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1994). Psychologische Überlegungen zu Rache (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 76). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 50 Schmitt, M., Barbacsy, R., Binz, S., Buttgereit, C., Heinz, J., Hesse, J., Kraft, S., Kuhlmann, N., Lischetzke, T., Nisslmüller, K. & Wunsch, U. (1994). Distributive justice research from an interactionist perspective (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 77). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1994). Drakonität als Personmerkmal: Entwicklung und erste Erprobung eines Fragebogens zur Erfassung von Urteilsstrenge (Drakonität) versus Milde (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 78). Trier: Universität Trier, Fachbereich I - Psychologie. 1995 Maes, J. (1995). Kontrollieren und kontrolliert werden: Konstruktion und Analyse eines Zwei- Wege-Fragebogens zur Erfassung von Kontrollüberzeugungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 79). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Maes, J. & Schmal, A. (1995). Gerechtigkeit als innerdeutsches Problem: Auswahl von Indikatoren seelischer Gesundheit (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 80). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1995b). Befunde zur Unterscheidung von immanenter und ultimativer Gerechtigkeit: 1. Ergebnisse aus einer Untersuchung zur Wahrnehmung von Krebskrankheiten und Krebskranken (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 81). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Maes, J. & Schmal, A. (1995a). Gerechtigkeit als innerdeutsches Problem: Einstellungen zu Verteilungsprinzipien, Ungerechtigkeitssensibilität und Glaube an eine gerechte Welt als Kovariate (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 82). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Maes, J. & Schmal, A. (1995b). Gerechtigkeit als innerdeutsches Problem: Kernvariablen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 83). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1995). Freiheit oder Determinismus - ein Kurzfragebogen zur Erfassung individueller Unterschiede (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 84). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Schmal, A. (1995). Gerechtigkeit als innerdeutsches Problem: Werthaltungen, Kontrollüberzeugungen, Freiheitsüberzeugungen, Drakonität, Soziale Einstellungen, Empathie und Protestantische Arbeitsethik als Kovariate (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 85). Trier: Universität Trier, Fachbereich I - Psychologie. Dalbert, C. & Schneider, A. (1995). Die Allgemeine Gerechte-Welt-Skala: Dimensionalität, Stabilität & Fremdurteiler-Validität (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 86). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1997). Beschäftigungspolitik zwischen Effizienz und Gerechtigkeit (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral” Nr. 87). Trier: Universität Trier, Fachbereich I – Psychologie. Montada, L. & Kals, E. (1995). Motivvergleich umwelt- und gesundheitsrelevanten Verhaltens: Beschreibung eines Projekts (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 88). Trier: Universität Trier, Fachbereich I - Psychologie. Kals, E. & Becker, R. (1995). Item- und Skalenanalyse umwelt- und gesundheitsbezogener Meßinstrumente (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 89). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 51 Schmitt, M. & Mohiyeddini, C. (1995). Sensitivity to befallen injustice and reactions to a real life disadvantage (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 90). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1995). Kategorien der Angst und Möglichkeiten der Angstbewältigung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 91). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. (1995). Ein Modell der Eifersucht (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 92). Trier: Universität Trier, Fachbereich I – Psychologie. Schmitt, M., Boße, A., Eggers, T., Finke, I., Glöcklhofer, G., Hönen, W., Kunnig, A., Mensching, M., Ott, J., Plewe, I., Wagensohn, G. & Ziegler, B. (1995). Distributive justice research from an interactionist perspective II: The effects of reducing social control and reducing subject's responsibility (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 93). Trier: Universität Trier, Fachbereich I - Psychologie. Mohiyeddini, C. & Schmitt, M. (1995) Sensitivity to befallen injustice and reactions to unfair treatment in the laboratory (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 94). Trier: Universität Trier, Fachbereich I - Psychologie. 1996 Kals, E. & Odenthal, D. (1996). Skalen zur Erfassung ernährungsbezogener Einstellungen und Entscheidungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 95). Trier: Universität Trier, Fachbereich I - Psychologie. Schmal, A., Maes, J. & Schmitt, M. (1996). Gerechtigkeit als innerdeutsches Problem: Untersuchungsplan und Stichprobe (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 96). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Schmal, A. (1996a). Gerechtigkeit als innerdeutsches Problem: Haltungen zur Nation als Kovariate (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 97). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Schmal, A. (1996). Gerechtigkeit als innerdeutsches Problem: Machiavellismus, Dogmatismus, Ambiguitätstoleranz, Toleranz und Autoritarismus als Kovariate (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 98). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Schmal, A. (1996). Gerechtigkeit als innerdeutsches Problem: Politische Grundhaltungen (Konservatismus, Liberalismus, Sozialismus, Anarchismus, Faschismus, Ökologismus) als Kovariate (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 99). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Schmal, A. (1996). Gerechtigkeit als innerdeutsches Problem: Demographische Kovariate (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 100). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1996). Fragebogeninventar zur Erfassung von Einstellungen zu Krebskrankheiten und Krebskranken - Dokumentation der Item- und Skalenanalysen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 101). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Dombrowsky, C., Kühn, W. Larro-Jacob, A., Puchnus, M., Thiex, D., Wichern, T., Wiest, A. & Wimmer, A. (1996). Distributive justice research from an interactionist per- spective III: When and why do attitudes interact synergetically with functionally equivalent situation factors? (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 102). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 52 1997 Dörfel, M. & Schmitt, M. (1997). Procedural injustice in the workplace, sensitivity to befallen injustice, and job satisfaction (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 103). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Maes, J. & Schmal, A. (1997a). Gerechtigkeit als innerdeutsches Problem: Analyse der Meßeigenschaften von Indikatoren der seelischen Gesundheit (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 104). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Maes, J. & Schmal, A. (1997b). Gerechtigkeit als innerdeutsches Problem: Analyse der Meßeigenschaften von Meßinstrumenten für Einstellungen zu Verteilungsprinzipien, Ungerechtigkeitssensibilität und Glaube an eine gerechte Welt (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 105). Trier: Universität Trier, Fachbereich I - Psychologie. Kals, E., Becker, R. & Montada, L. (1997). Skalen zur Validierung umwelt- und gesundheitsbezogener Bereitschaftsmaße (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 106). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M. (1997). Challenges to the Construct Validity of Belief in a Just World Scales (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 107). Trier: Universität Trier, Fachbereich I - Psychologie. Reichle, B. (1997). Eins und Eins wird Drei. Ein Kurs zur Vorbereitung von Paaren auf die erste Elternschaft (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 108). Trier: Universität Trier, Fachbereich I - Psychologie. 1998 Kals, E. & Montada, L. (1998). Über gemeinsame Motive von krebspräventiven und umweltschützenden Bereitschaften und Entscheidungen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 109). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M., Lischetzke, T. & Schmiedemann, V. (1998). Effects of experienced injustice in unified Germany on well-being and mental health (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 110). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Seiler, U. (1998). Die Geschichte der Gerechte-Welt-Forschung: Eine Entwicklung in acht Stufen? (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 111). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1998). Befunde zur Unterscheidung von immanenter und ultimativer Gerechtigkeit: 2. Ergebnisse aus einer Untersuchung zur Verantwortungsübernahme für den Aufbau an ostdeutschen Hochschulen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 112). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J., Schmitt, M. & Seiler, U. (1998). Befunde zur Unterscheidung von immanenter und ultimativer Gerechtigkeit: 3. Ergebnisse aus dem Forschungsprojekt "Gerechtigkeit als innerdeutsches Problem" (GiP) (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 113). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Kals, E. (1998). A theory of "willingness for continued responsible commitment": Research examples from the fields of pollution control and health protection (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 114). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 53 Montada, L. (1998). Ethical Issues in Communicating with Participants (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 115). Trier: Universität Trier, Fachbereich I - Psychologie. Seiler, U., Schmitt, M. & Maes, J. (1998). Gerechtigkeit als innerdeutsches Problem: Analyse der Meßeigenschaften von Meßinstrumenten für Kernvariablen des Lebensbereichs Arbeit und Beruf (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 116). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1998). Zuschreibungen von Verantwortung für Krebskrankheiten: Der Einfluß von generalisierten Einstellungen und Überzeugungssystemen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 117). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1998). Hilfestellung für Krebskranke - Hypothesen aus der Gerechte-Welt-Forschung und ihre Überprüfung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 118). Trier: Universität Trier, Fachbereich I - Psychologie. Reichle, B. (1998). Entwicklungsberatung für Familien in Übergangsphasen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 119). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1998). Glaube an eine ungerechte Welt? (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 120). Trier: Universität Trier, Fachbereich I - Psychologie. 1999 Maes, J. (1999). Eine Kurzfassung des Existentielle-Schuld-Inventars – Erprobung einer sparsamen Erhebungsvariante. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 121). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1999). Gerechte-Welt-Überzeugungen, Kontrollüberzeugungen und Präferenzen für Prinzipien distributiver Gerechtigkeit – zur Differenzierbarkeit verwandt Konstrukte. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 122). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1999). Aufbau an ostdeutschen Hochschulen – Existentielle Schuld und Hilfsbereitschaft westdeutscher Studierender zugunsten von ostdeutschen Studierenden. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 123). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (1999). Lebenslanges Lernen und Gerechtigkeit – Dokumentation einer Untersuchung in Einrichtungen der Erwachsenenbildung. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 124). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L., Schneider, A. & Seiler, S. (1999). Bewältigung emotionaler Belastungen durch Querschnittslähmung mittels Relativierung von Verantwortlichkeitsattributionen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 125). Trier: Universität Trier, Fachbereich I - Psychologie. Mohiyeddini, C. & Montada, L. (1999). Neue Skalen zur Psychologie der Gerechtigkeit (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral” Nr. 126). Trier: Universität Trier, Fachbereich I – Psychologie. Wehr, T. & Bräutigam, M. (1999). Physiologische Erregung und Kognitionen in der Emotionsgenese und -differenzierung (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 127). Trier: Universität Trier, Fachbereich I – Psychologie. 2000 Montada, L. (2000). Lebensspende von Organen: Motive, Freiwilligkeit und weitere psychologische Aspekte (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 128). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 54 Kals, E. (2000). Gerechtigkeitspsychologische Analyse und Mediation von Konflikten: Ein interkultureller Vergleich am Beispiel lokaler Umweltkonflikte (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 129). Trier: Universität Trier, Fachbereich I - Psychologie. Montada, L. & Kirchhoff, S. (2000). Bitte um Verzeihung, Rechtfertigungen und Ausreden: Ihre Wirkungen auf soziale Beziehungen (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 130). Trier: Universität Trier, Fachbereich I – Psychologie. Montada, L., Kals, E. & Niegot, F. (2000). Fragebogen zur Erklärung verkehrspolitischen Handelns lokaler Entscheidungsträger (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 131). Trier: Universität Trier, Fachbereich I - Psychologie. Schmitt, M., Montada, L. & Maes, J. (2000). Gerechtigkeit als innerdeutsches Problem: Abschlussbericht an die DFG (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 132). Trier: Universität Trier, Fachbereich I - Psychologie. Lohmann, J. (2000). Handlungspsychologische Beratung. Ein Modell praktisch psychologischen Handelns. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 133). Trier: Universität Trier, Fachbereich I - Psychologie. Kals, E., Ittner, H. & Müller, M. (2000). Gerechtigkeitspsychologische Analyse und Mediation von Konflikten: Fragebogen zu einem verkehrspolitischen Trierer Konflikt (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 134). Trier: Universität Trier, Fachbereich I - Psychologie. Bernhardt, K. (2000). "Tendenz zum assertorischen bzw. revisionsbereiten Urteilen" Die Validierung zweier neuer Konstrukte (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 135). Trier: Universität Trier, Fachbereich I - Psychologie. 2001 Schmitt, M. & Maes, J. (2001). Gerechtigkeit als innerdeutsches Problem: Gesamtes Erhebungsinstrumentarium (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 136). Trier: Universität Trier, Fachbereich I - Psychologie. Hangarter, M. & Schmitt, M. (2001). Sensibilität für beobachtete Ungerechtigkeit als Disposition: Überprüfung der Konstruktvalidität mittels eines modifizierten Stroop-Tests (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 137). Trier: Universität Trier, Fachbereich I - Psychologie. Gollwitzer, M. (2001). Vergeltung und Genugtuung: Validierung eines experimentellen Spielparadigmas (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 138). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. (2001). Attraktivität − Eine gerechtigkeitspsychologische Frage (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 139). Trier: Universität Trier, Fachbereich I - Psychologie. Gollwitzer, M., Schmitt, M., Förster, N. & Montada, L. (2001). Additive and joint effects of account components on reactions towards interactional injustice (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 140). Trier: Universität Trier, Fachbereich I - Psychologie. Gollwitzer, M. (2001). Zur Beeinflussung kognitiver Prozesse durch die Bedrohung des Glaubens an eine gerechte Welt (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 141). Trier: Universität Trier, Fachbereich I - Psychologie. Hangarter, M., Schmitt, M. & Ebert, D. (2001). Aufmerksamkeits- und Gedächtnisindikatoren zur Konstruktvalidierung von sozial- und persönlichkeitspsychologischen Eigenschafts- und Zustandsmaßen (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 142). Trier: Universität Trier, Fachbereich I - Psychologie. Justice Sensitivity 55 Maes, J. & Kals, E. (2001). Funktion und Bedeutung des Gerechte-Welt-Glaubens in der Schule (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 143). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. & Delahaye, M. (2001). In den Augen des Betrachters - eine Fragebogenstudie zum Umgang mit Attraktivität. Dokumentation des Erhebungsinstrumentariums und der darin gemessenen Konstrukte. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 144). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. & Delahaye, M. (2001). In den Augen des Betrachters - eine Fragebogenstudie zum Umgang mit Attraktivität. Dokumentation der item- und skalenanalytischen Untersuchungen. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 145). Trier: Universität Trier, Fachbereich I - Psychologie. Maes, J. & Schmitt, M. (2001). Protestantische-Ethik-Skala (PES): Messeigenschaften und Konstruktvalidität (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 146). Trier: Universität Trier, Fachbereich I - Psychologie. 2002 Gollwitzer, M. (2002). Wave Goodbye the Scapegoat – Moral Decisions and Their Effects on Harshness of Penalty. (Berichte aus der Arbeitsgruppe "Verantwortung, Gerechtigkeit, Moral" Nr. 147). Trier: Universität Trier, Fachbereich I - Psychologie. Cohrs, C., Kielmann, S. O., Moschner, B. & Maes, J. (2002). Befragung zum 11. September 2001 und den Folgen: Grundideen, Operationalisierungen und deskriptive Ergebnisse der ersten Erhebungsphase (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 148). Trier: Universität Trier, Fachbereich I –Psychologie. Cohrs, C., Kielmann, S. O., Maes, J. & Moschner, B. (2002). Befragung zum 11. September 2001 und den Folgen: Bericht über die zweite Erhebungsphase (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 149). Trier: Universität Trier, Fachbereich I – Psychologie. Maes, J. & Schmitt, M. (2002). Krieg und Frieden – gerechtigkeitspsychologische Aspekte (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 150). Trier: Universität Trier, Fachbereich I – Psychologie. Maes, J. (2002). Grundzüge einer Fragebogenuntersuchung zur Erfassung von Einstellungen zu Krebskrankheiten – Konzeption, Variablennetz und Stichprobe (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 151). Trier: Universität Trier, Fachbereich I – Psychologie. Maes, J. (2002). Defensivattributionshypothese – Review und konzeptuelle Kritik (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 152). Trier: Universität Trier, Fachbereich I – Psychologie. Maes, J. (2002). Zur Differenzierbarkeit von Gerechte-Welt- und Kontrollüberzeugungen – konzeptuelle und empirische Argumente (Berichte aus der Arbeitsgruppe „Verantwortung, Gerechtigkeit, Moral“ Nr. 153). Trier: Universität Trier, Fachbereich I – Psychologie. 2003 Schmitt, M., Maes, J. & Widaman, K. (2003). Longitudinal Effects of Fraternal Deprivation on Life Satisfaction and Mental Health. (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral“ Nr. 154). Trier: Universität Trier, Fachbereich I – Psychologie. Ittner, H. & Ohl, C. (2003). Strategie Entscheidungskalküle und Gerechtigkeitsurteile bei der Lösung globaler Kooperationsaufgaben zum Klimaschutz – eine Projektskizze. (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral“ Nr. 155). Trier: Universität Trier, Fachbereich I – Psychologie. Justice Sensitivity 56 Hofmann, W., Gschwendner, T. & Schmitt, M. (2003). On the moderation of the implicit-explicit consistency: The role of introspection and adjustment. (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral“ Nr. 156). Trier: Universität Trier, Fachbereich I – Psychologie. Barth, S., Kerp, E.-M. & Müller, M. (2003). Trauer. (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral“ Nr. 157). Trier: Universität Trier, Fachbereich I – Psychologie. Hofmann, W., Gawronski, B., Gschwendner, T., Le, H. & Schmitt, M. (2003). A Meta-Analysis on the Correlation between the Implicit Association Test and Explicit Self-Report Measures. (Berichte aus der Arbeitsgruppe “Verantwortung, Gerechtigkeit, Moral” Nr. 158). Trier: Universität Trier, Fachbereich I – Psychologie. Justice Sensitivity 57 Andernorts publizierte Arbeiten aus dieser Arbeitsgruppe 1977 Montada, L. (1977). Moralisches Verhalten. In T. Herrmann, P.R. Hofstätter, H. Huber & F.E. Weinert (Hrsg.), Handbuch psychologischer Grundbegriffe (S. 289-296). München: Kösel. 1980 Montada, L. (1980). Gerechtigkeit im Wandel der Entwicklung. In G. Mikula (Hrsg.), Gerechtigkeit und soziale Interaktion (S. 301-329). Bern: Huber. Montada, L. (1980). Moralische Kompetenz: Aufbau und Aktualisierung. In L.H. Eckensberger & R.K. Silbereisen (Hrsg.), Entwicklung sozialer Kognitionen: Modelle, Theorien, Methoden, Anwendungen (S. 237-256). Stuttgart: Klett-Cotta. 1981 Montada, L. (1981). Gedanken zur Psychologie moralischer Verantwortung. In V. Zsifkovits & R. Weiler (Hrsg.), Erfahrungsbezogene Ethik (S. 67-88). Berlin: Duncker & Humblot. Montada, L. (1981). Voreingenommenheiten im Urteil über Schuld und Verantwortlichkeit. Trierer Psychologische Berichte, 8, Heft 10. 1982 Dahl, U., Montada, L. & Schmitt, M. (1982). Hilfsbereitschaft als Personmerkmal. Trierer Psychologische Berichte, 9, Heft 8. Dalbert, C. & Montada, L. (1982). Vorurteile und Gerechtigkeit in der Beurteilung von Straftaten. Eine Untersuchung zur Verantwortlichkeitsattribution. Trierer Psychologische Berichte, 9, Heft 9. Montada, L. (1982). Entwicklung moralischer Urteilsstrukturen und Aufbau von Werthaltungen. In R. Oerter, L. Montada u.a. Entwicklungspsychologie (S. 633-673). München: Urban & Schwarzenberg. Schmitt, M. & Montada, L. (1982). Determinanten erlebter Gerechtigkeit. Zeitschrift für Sozialpsychologie, 13, 32-44. Schmitt, M. (1982). Schuldgefühle erwachsener Töchter gegenüber ihren Müttern: Zwei Modelle. Bremer Beiträge zur Psychologie, 17, 84-90. 1983 Montada, L. (1983). Delinquenz. In R.K. Silbereisen & L. Montada (Hrsg.), Entwicklungspsychologie. Ein Handbuch in Schlüsselbegriffen (S. 201-212). München: Urban & Schwarzenberg. Montada, L. (1983). Moralisches Urteil und moralisches Handeln - Gutachten über die Fruchtbarkeit des Kohlberg-Ansatzes. Bonn: Bundesministerium der Verteidigung (Hrsg.), Wehrpsychologische Untersuchungen, 18,(2). Montada, L. (1983). Verantwortlichkeit und das Menschenbild in der Psychologie. In G. Jüttemann (Hrsg.), Psychologie in der Veränderung (S. 162-188). Weinheim: Beltz. Montada, L. (1983). Voreingenommenheiten im Urteilen über Schuld und Verantwortlichkeit. In L. Montada, K. Reusser & G. Steiner (Hrsg.), Kognition und Handeln (S. 165-168). Stuttgart: Klett-Cotta. 1985 Schmitt, M., Dalbert, C. & Montada, L. (1985). Drei Wege zu mehr Konsistenz in der Selbstbeschreibung: Theoriepräzisierung, Korrespondenzbildung und Datenaggregierung. Zeitschrift für Differentielle und Diagnostische Psychologie, 6, 147-159. Schmitt, M., Montada, L. & Dalbert, C. (1985). Zur Vorhersage von Hilfeleistungen erwachsener Töchter ihren Müttern gegenüber. In D. Albert (Hrsg.), Bericht über den 34. Justice Sensitivity 58 Kongreß der Deutschen Gesellschaft für Psychologie in Wien 1984 (Band 1, S. 435-438). Göttingen: Hogrefe. 1986 Bartussek, D. & Schmitt, M. (1986). Die Abhängigkeit des evozierten EEG-Potentials von Reizbedeutung, Extraversion und Neurotizismus. Eine Untersuchung zur Extraversionstheorie von J.A. Gray. Trierer Psychologische Berichte, 13, Heft 8. Dalbert, C. & Schmitt, M. (1986). Einige Anmerkungen und Beispiele zur Formulierung und Prüfung von Moderatorhypothesen. Zeitschrift für Differentielle und Diagnostische Psychologie, 7, 29-43. Montada, L. (1986). Vom Werden der Moral. Wann wir wissen, was gut und böse ist. In P. Fischer & F. Kubli (Hrsg.), Das Erwachen der Intelligenz (S. 45-56). Berlin: Schering. Montada, L., Dalbert, C., Reichle, B. & Schmitt, M. (1986). Urteile über Gerechtigkeit, "Existentielle Schuld" und Strategien der Schuldabwehr. In F. Oser, W. Althof & D. Garz (Hrsg.), Moralische Zugänge zum Menschen - Zugänge zum moralischen Menschen (S. 205- 225). München: Peter Kindt Verlag. Montada, L., Schmitt, M. & Dalbert, C. (1986). Thinking about justice and dealing with one's own privileges: A study of existential guilt. In H.W. Bierhoff, R. Cohen, & J. Greenberg (Eds.), Justice in social relations (S. 125-143). New York: Plenum Press. Schmitt, M., Dalbert, C. & Montada, L. (1986). Personale Normen und prosoziales Handeln: Kritische Anmerkungen und eine empirische Untersuchung zum Modell von S.H. SCHWARTZ. Zeitschrift für Sozialpsychologie, 17, 40-49. Schmitt, M., Dalbert, C. & Montada, L. (1986). Prosoziale Leistungen erwachsener Töchter gegenüber ihren Müttern: Unterschiede in den Bedingungen von Absicht und Ausführung. Psychologische Beiträge, 28, 139-163. 1987 Dalbert, C. (1987). Ein Veränderungsmodell prosozialer Handlungen. Leistungen erwachsener Töchter für ihre Mütter. Regensburg: Roderer. Dalbert, C. (1987). Einige Anmerkungen zur Verwendung unterschiedlicher Veränderungskriterien. Psychologische Beiträge, 29, 423-438. Dalbert, C., Montada, L. & Schmitt, M. (1987). Glaube an eine gerechte Welt als Motiv: Validierungskorrelate zweier Skalen. Psychologische Beiträge, 29, 596-615. Steyer, R. & Schmitt, M.J. (1987). Psychometric theory of persons-in-situations: Definitions of consistency, specifity and reliability, and the effects of aggregation. Trierer Psychologische Berichte, 14, Heft 3. 1988 Montada, L. & Boll, T. (1988). Auflösung und Dämpfung von Feindseligkeit. Untersuchungen des Psychologischen Dienstes der Bundeswehr, 23, 43-144. Montada, L. (1988). Die Bewältigung von 'Schicksalsschlägen' - erlebte Ungerechtigkeit und wahrgenommene Verantwortlichkeit. Schweizerische Zeitschrift für Psychologie, 47, 203- 216. Montada, L. (1988). Verantwortlichkeitsattribution und ihre Wirkung im Sport. Psychologie und Sport, 20, 13-39. Montada, L., Dalbert, C. & Schmitt, M. (1988). Ist prosoziales Handeln im Kontext Familie abhängig von situationalen, personalen oder systemischen Faktoren? In H.W. Bierhoff & L. Montada (Hrsg.), Altruismus - Bedingungen der Hilfsbereitschaft (S. 179-205). Göttingen: Hogrefe. Justice Sensitivity 59 Montada, L., Dalbert, C. & Schmitt, M. (1988). Wahrgenommener Handlungsspielraum und emotionale Reaktionen gegenüber Benachteiligten. In G. Krampen (Hrsg.), Diagnostik von Kausalattributionen und Kontrollüberzeugungen (S. 119-126). Göttingen: Hogrefe. Montada, L., Dalbert, C. & Steyer, R. (1988). Die konzeptuelle Differenzierung zwischen Emotionen mit Hilfe von Strukturgleichungsmodellen: Existentielle Schuld und Mitleid. Psychologische Beiträge, 31, 541-555. Montada, L., Schneider, A. & Reichle, B. (1988). Emotionen und Hilfsbereitschaft. In H.W. Bierhoff & L. Montada (Hrsg.), Altruismus - Bedingungen der Hilfsbereitschaft (S. 130-153). Göttingen: Hogrefe. 1989 Maes, J. & Montada, L. (1989). Verantwortlichkeit für "Schicksalsschläge": Eine Pilotstudie. Psychologische Beiträge, 31, 107-124. Montada, L. & Schneider, A. (1989). Justice and emotional reactions to the disadvantaged. Social Justice Research, 3, 313-344. Montada, L. (1989). Bildung der Gefühle? Zeitschrift für Pädagogik, 35, 294-312. Montada, L. (1989). Sozialisation zu Pflicht und Gehorsam. Politicum, 42, 16-21. Montada, L. (1989). Strafzwecküberlegungen aus psychologischer Sicht. In C. Pfeiffer & M. Oswald (Hrsg.), Strafzumessung - Empirische Forschung und Strafrechtsdogmatik im Dialog (S. 261-268). Stuttgart: Enke-Verlag. Schmitt, M. (1989). Ipsative Konsistenz (Kohärenz) als Profilähnlichkeit. Trierer Psychologische Berichte, 16, Heft 2. Schmitt, M., Bäuerle, C., Dohmke, E., Eckmann, J., Ganseforth, A., Gartelmann, A., Mosthaf, U., Siebert, G. & Wiedemann, R. (1989). Zur Differenzierung von Existentieller Schuld und Mitleid über Verantwortlichkeitsinduktion: Ein Filmexperiment. Zeitschrift für experimentelle und angewandte Psychologie, 36, 274-291. 1990 Schmitt, M. (1990). Further evidence on the invalidity of self-reported consistency. In P.J.D. Drenth, J.A. Sergeant & R.J. Takens (Eds.), European perspectives in psychology (Vol. 1, S. 57-68). New York: Wiley. Schmitt, M. (1990). Konsistenz als Persönlichkeitseigenschaft? Moderatorvariablen in der Persönlichkeits- und Einstellungsforschung. Berlin: Springer. Schmitt, M. (1990). Zur (mangelnden) Konstruktvalidität von Konsistenz-Selbsteinschätzungen. Zeitschrift für Differentielle und Diagnostische Psychologie, 11, 149-166. Schmitt, M. & Steyer, R. (1990). Beyond intuition and classical test theory: A reply to Epstein. Methodika, 4, 101-107. Steyer, R. & Schmitt, M. (1990). Latent state-trait models in attitude research. Quality and Quantity, 24, 427-445. Steyer, R. & Schmitt, M. (1990). The effects of aggregation across and within occasions on consistency, specificity, and reliability. Methodika, 4, 58-94. 1991 Montada, L. (1991). Life stress, injustice, and the question "Who is responsible?". In: H. Steensma & R. Vermunt (Eds.), Social justice in human relations (Vol. 2, p. 9-30). New York: Plenum Press. Montada, L., Schmitt, M. & Dalbert, C. (1991). Prosocial commitments in the family: Situational, personality, and systemic factors. In L. Montada & H.W. Bierhoff (Eds.), Altruism in social systems (S. 177-203). Toronto: Hogrefe. Justice Sensitivity 60 Montada, L. & Schneider, A. (1991). Justice and prosocial commitments. In L. Montada & H.W. Bierhoff (Eds.), Altruism in social systems (p. 58-81). Toronto: Hogrefe. Schmitt, M. (1991). Beauty is not always talent: Untersuchungen zum Verschwinden des Halo- Effekts. Trierer Psychologische Berichte, 18, Heft 10. Schmitt, M. (1991). Differentielle differentielle Psychologie: Ursachen individueller Konsistenzunterschiede und Probleme der Moderatorforschung. Trierer Psychologische Berichte, 18, Heft 2. Schmitt, M. (1991). Ungerechtes Schicksal und Personbewertung. Zeitschrift für Sozialpsychologie, 22, 208-210. Schmitt, M. (1991). Zur Differenzierung des Eigenschaftsmodells durch Moderatorkonstrukte: Bestandsaufnahme, Probleme, Perspektiven. In D. Frey (Hrsg.), Bericht über den 37. Kongreß der Deutschen Gesellschaft für Psychologie in Kiel 1990 (Band 2, S. 429-434). Göttingen: Hogrefe. Schmitt, M., Hoser, K. & Schwenkmezger, P. (1991). Schadensverantwortlichkeit und Ärger. Zeitschrift für experimentelle und angewandte Psychologie, 38, 634-647. Schmitt, M., Kilders, M., Mösle, A., Müller, L., Prengle, A., Rabenberg, H., Schott, F., Stolz, J., Suda, U., Williams, M. & Zimmermann, G. (1991). Gerechte-Welt-Glaube, Gewinn und Verlust: Rechtfertigung oder ausgleichende Gerechtigkeit? Zeitschrift für Sozialpsychologie, 22, 37-45. Schmitt, M., Montada, L. & Dalbert, C. (1991). Struktur und Funktion der Verantwortlichkeitsabwehr. Zeitschrift für Differentielle und Diagnostische Psychologie, 11, 203-214. 1992 Dalbert, C., Fisch, U. & Montada, L. (1992). Is inequality unjust? Evaluating women's career chances. European Review of Applied Psychology, 42, 11-17. Hoser, K., Schmitt, M. & Schwenkmezger, P. (1992). Verantwortlichkeit und Ärger. In V. Hodapp & P. Schwenkmezger (Hrsg.), Ärger und Ärgerausdruck (S. 143-168). Bern: Huber. Kaiser, A., Lüken, A., Maes, J., Schmillen, A., Winkels, R. & Kaiser, R. (1992). Schulversuch "Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit" des Ministeriums für Bildung und Kultur Rheinland-Pfalz. Zwischenbericht der wissenschaftlichen Begleitung. Trier: Forschungsstelle Begys. Kann, H.J. & Maes, J. (1992). Die kulturtouristischen Angebote der Stadt Trier - vermittelt in einem Stadtrundgang. In C. Becker & A. Steinecke (Hrsg.), Kulturtourismus in Europa: Wachstum ohne Grenzen? (ETI-Studien, Band 2), (S. 233-244). Trier: Europäisches Tourismus Institut. Lüken, A., Kaiser, A., Maes, J., Schmillen, A. & Winkels, R. (1992). Begabtenförderung am Gymnasium mit Schulzeitverkürzung. Ein Schulversuch des Landes Rheinland-Pfalz zur Förderung leistungsfähiger und lernwilliger Schüler und Schülerinnen. In H. Drewelow & K. Urban (Hrsg.), Besondere Begabungen - spezielle Schulen? Beiträge zur wissenschaftlichen Arbeitstagung vom 23.-25. April 1992 in Rostock (S. 53-59). Rostock: Universität Rostock. Montada, L. (1992). Attribution of responsibility for losses and perceived injustice. In L. Montada, S.-H. Filipp & M.J. Lerner (Eds.), Life crises and the experience of loss in adulthood (S. 133-162). Hillsdale, NJ: Lawrence Erlbaum. Montada, L. (1992). Eine Pädagogische Psychologie der Gefühle. Kognitionen und die Steuerung erlebter Emotionen. In H. Mandl, M. Dreher & H.-J. Kornadt (Hrsg.), Entwicklung und Denken im kulturellen Kontext (S. 229-249). Göttingen: Hogrefe. Montada, L. (1992). Moralische Gefühle. In W. Edelstein, G. Nunner-Winkler & G. Noam (Hrsg.), Moral und Person (S. 259-277). Frankfurt: Suhrkamp. Justice Sensitivity 61 Montada, L. (1992). Predicting prosocial commitment in different social contexts. In P.M. Oliner, S.P. Oliner, L. Baron, L.A. Blum, D.L. Krebs & M.Z. Smolenska (Eds.), Embracing the other: Philosophical, psychological and historical perspectives (S. 226-252). New York: New York University Press. Schmitt, M. (1992). Interindividuelle Konsistenzunterschiede als Herausforderung für die Differentielle Psychologie. Psychologische Rundschau, 43, 30-45. Schmitt, M. (1992). Schönheit und Talent: Untersuchungen zum Verschwinden des Halo- Effekts. Zeitschrift für experimentelle und angewandte Psychologie, 39, 475-492. Schmitt, M. & Baltes-Götz, B. (1992). Common and uncommon moderator concepts: Comment on Wermuth's “Moderating Effects in Multivariate Normal Distributions”. Methodika, 6, 1-4. Schmitt, M. & Borkenau, P. (1992). The consistency of personality. In G.-V. Caprara & G.L. Van Heck (Eds.), Modern personality psychology. Critical reviews and new directions (S. 29- 55). New York: Harvester-Wheatsheaf. Steyer, R., Ferring, D. & Schmitt, M. (1992). On the definition of states and traits. Trierer Psychologische Berichte, 19, Heft 2. Steyer, R., Ferring, D. & Schmitt, M. (1992). States and traits in psychological assessment. European Journal of Psychological Assessment, 2, 79-98. 1993 Bartussek, D. & Schmitt, M. (1993). Persönlichkeit. In A. Schorr (Hrsg.), Handwörterbuch der Angewandten Psychologie (S. 502-507). Bonn: Deutscher Psychologen Verlag. Dalbert, C. & Schmitt, M. (1993). Kriterien, Perspektiven und Konsequenzen von Gerechtigkeitsurteilen. In L. Montada (Hrsg.), Bericht über den 38. Kongreß der Deutschen Gesellschaft für Psychologie in Trier 1992 (Band 2, S. 858-860). Göttingen: Hogrefe. Janetzko, E. & Schmitt, M. (1993). Verantwortlichkeits- und Schuldzuschreibungen bei Ost- und Westdeutschen. Report Psychologie, 18 (9), 18-27. Kals, E. (1993). Ökologisch relevante Verbotsforderungen, Engagement- und Verzichtbereitschaften am Beispiel der Luftqualität. Microfiche. Dissertation. Trier: Universität Trier, Fachbereich I - Psychologie. Kals, E. (1993). Psychological science in the western world: A guide, or not a guide to solving human problems? Journal of University of Science and Technology Beijing, 15, 226-231. Maes, J. (1993). Bibliotherapie: Wirksam und erforschbar. Fremde Verse, 3 (1), 10-11. Montada, L. (1993). Fallen der Gerechtigkeit: Probleme der Umverteilung von West nach Ost. In L. Montada (Hrsg.), Bericht über den 38. Kongreß der Deutschen Gesellschaft für Psychologie in Trier 1992 (Band 2, S. 31-48). Göttingen: Hogrefe. Montada, L. (1993). Umverteilungen nach der Vereinigung: Über den Bedarf an Psychologie nach dem Beitritt der ehemaligen DDR zur Bundesrepublik. In G. Trommsdorf (Hrsg.), Psychologische Aspekte des sozio-politischen Wandels in Ostdeutschland (S. 50-62). Berlin: de Gruyter. Montada, L. (1993). Understanding oughts by assessing moral reasoning or moral emotions. In G. Noam & T. Wren (Eds.), The moral self (S. 292-309). Boston: MIT-Press. Montada, L. (1993). Victimization by critical life events. In W. Bilsky, C. Pfeiffer, & P. Wetzels (Eds.), Fear of crime and criminal victimization (S. 83-98). Stuttgart: Enke. Schmal, A. (1993). Problemgruppen oder Reserven für den Arbeitsmarkt. Ältere Arbeitnehmer, ausländische Jugendliche, Berufsrückkehrerinnen und arbeitslose Akademiker. Frankfurt: Campus. Justice Sensitivity 62 Schmitt, M. (1993). Handlung als Synthese von Person und Situation: Lehren aus der Konsistenzkontroverse. Zeitschrift für Sozialpsychologie, 24, 71-75 [Rezension von: Krahé, B. (1992). Personality and Social Psychology. Towards a Synthesis. London: Sage.]. Schmitt, M. & Dalbert, C. (1993). Gerechtigkeitsbedrohliche Lebensereignisse. In L. Montada (Hrsg.), Bericht über den 38. Kongreß der Deutschen Gesellschaft für Psychologie in Trier 1992 (Band 2, S. 951-954). Göttingen: Hogrefe. Schmitt, M. & Janetzko, E. (1993). Verantwortlichkeitsüberzeugungen bei Ost- und Westdeutschen. In G. Trommsdorff (Hrsg.), Psychologische Aspekte des sozio-politischen Wandels in Ostdeutschland (S. 169-179). Berlin: de Gruyter. Schmitt, M. & Steyer, R. (1993). A latent state-trait model (not only) for social desirability. Personality and Individual Differences, 14, 519-529. Schmitt, M. & Steyer, R. (1993). A latent state-trait model for social desirability. In R. Steyer, K.F. Wender, & K.F. Widaman (Eds.), Proceedings of the 7th European Meeting of the Psychometric Society in Trier (S. 463-468). Stuttgart: Gustav Fischer Verlag. Schmitt, M., Schwartz, S.H., Steyer, R., & Schmitt, T. (1993). Measurement models for the Schwartz Values Inventory. European Journal of Psychological Assessment, 9, 107-121. 1994 Kaiser, A., Lüken, A., Maes, J. & Winkels, R. (1994). Schulzeitverkürzung - Auf der Suche nach dem bildungspolitischen Kompromiß. Grundlagen der Weiterbildung. Zeitschrift für Weiterbildung und Bildungspolitik im In- und Ausland, 5, 219-223. Kals, E. (1994). Ökologisch relevante Verbotsforderungen, Engagement- und Verzichtbereitschaften am Beispiel der Luftqualität. Dissertation Abstracts International, 55 (3), 806-C. Kals, E. (1994). Straßenverkehr und Umweltschutz: Die ökologische Verantwortung des Bürgers. In A. Flade (Hrsg.), Mobilitätsverhalten - Bedingungen und Veränderungsmöglichkeiten aus umweltpsychologischer Sicht (S. 255-266). Weinheim: Psychologie Verlags Union. Kals, E. & Montada, L. (1994). Umweltschutz und die Verantwortung der Bürger. Zeitschrift für Sozialpsychologie, 25, 326-337. Maes, J. (1994). Blaming the victim - belief in control or belief in justice? Social Justice Research, 7, 69-90. Montada, L. (1994). Arbeitslosigkeit ein Gerechtigkeitsproblem? In L. Montada (Hrsg.), Arbeitslosigkeit und soziale Gerechtigkeit (S. 53-86). Frankfurt: Campus. Montada, L. (1994). Die Sozialisation von Moral. In K.A. Schneewind (Hrsg.), Enzyklopädie der Psychologie. Psychologie der Erziehung und Sozialisation (S. 315-344). Göttingen: Hogrefe. Montada, L. (1994). Injustice in harm and loss. Social Justice Research, 7, 5-28. Montada, L. (1994). Maßnahmen gegen Arbeitslosigkeit: Bewertungen unter Gerechtigkeitsaspekten. In L. Montada (Hrsg.), Arbeitslosigkeit und soziale Gerechtigkeit (S. 264-281). Frankfurt: Campus. Montada, L. (1994). Problems and crises in human development. In T. Husén & T.N. Postlethwaite (Eds.), International encyclopedia of education (Vol. 8), p. 4715-4719. London: Pergamon. Montada, L. (Hrsg.) (1994). Arbeitslosigkeit und soziale Gerechtigkeit. Frankfurt: Campus. Reichle, B. (1994). Die Geburt des ersten Kindes - eine Herausforderung für die Partnerschaft. Verarbeitung und Folgen einer einschneidenden Lebensveränderung. Bielefeld: Kleine. Justice Sensitivity 63 Reichle, B. (1994). Die Zuschreibung von Verantwortlichkeit für negative Ereignisse in Partnerschaften: Ein Modell und erste empirische Befunde. Zeitschrift für Sozialpsychologie, 25, 227-237. Reichle, B. & Montada, L. (1994). Problems with the transition to parenthood: Perceived responsibility for restrictions and losses and the experience of injustice. In M.J. Lerner & G. Mikula (Eds.), Entitlement and the affectional bond. Justice in Close Relationships (S. 205- 228). New York: Plenum Press. Schmal, A. (1994). Ungleichheiten auf dem Arbeitsmarkt zwischen Bevölkerungsgruppen und Regionen. In L. Montada (Hrsg.), Arbeitslosigkeit und soziale Gerechtigkeit (S. 87-106). Frankfurt: Campus. Schmitt, M. (1994). Gerechtigkeit. In M. Hockel, W. Molt & L. von Rosenstiel (Hrsg.), Handbuch der Angewandten Psychologie (Kapitel VII - 10). München: ecomed. 1995 Baltes, M.M. & Montada, L. (Hrsg.). (1995). Produktives Leben im Alter. Frankfurt: Campus. Dalbert, C. & Schmitt, M. (1995). Antezedenzien und Konsequenzen gerechtigkeitsthematischer Kognitionen. In K. Pawlik (Hrsg.), Bericht über den 39. Kongreß der Deutschen Gesellschaft für Psychologie in Hamburg 1994 (S. 774-775). Göttingen: Hogrefe. Kals, E. (1995). Promotion of proecological behavior to enhance quality of life. In J. Rodiguez- Marin (Ed.), Health psychology and quality of life research (S. 190-203). Alicante: University of Alicante & Sociedad Valenciana de Psicologia Social. Kals, E. (1995). Umwelt- und gesundheitsrelevantes Verhalten: Ein Vergleich der motivationalen Grundlagen. In A. Keul (Hrsg.), Menschliches Wohlbefinden in der Stadt (S. 43-68). Weinheim: Psychologie Verlags Union. Kals, E. (1995). Wird Umweltschutz als Schutz der eigenen Gesundheit verstanden? Zeitschrift für Gesundheitspsychologie, 3, 114-134. Maes, J. (1995). To control and to be controlled - presentation of a two-ways-questionnaire for the assessment of beliefs in control. European Journal of Psychological Assessment, 11, Supplement, No. 1, 8-9. Montada, L. (1995). Applying Social Psychology: The case of redistributions in unified Germany. Social Justice Research, 8, 73-90. Montada, L. (1995). Bewältigung von Ungerechtigkeiten in erlittenen Verlusten. Report Psychologie, 20 (2), 14-26. Montada, L. (1995). Delinquenz. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (S. 1024-1036). Weinheim: Psychologie Verlags Union. Montada, L. (1995). Die geistige Entwicklung aus der Sicht Jean Piagets. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (S. 518-560). Weinheim: Psychologie Verlags Union. Montada, L. (1995). Empirische Gerechtigkeitsforschung. In Berlin-Brandenburgische Akademie der Wissenschaften (Hrsg.), Berichte und Abhandlungen (Bd. 1, S. 67-85). Berlin: Akademie Verlag. Montada, L. (1995). Entwicklungspsychologie und Anwendungspraxis. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (S. 895-928). Weinheim: Psychologie Verlags Union. Montada, L. (1995). Fragen, Konzepte, Perspektiven. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (S. 1-83). Weinheim: Psychologie Verlags Union. Montada, L. (1995). Gerechtigkeitsprobleme bei Umverteilungen im vereinigten Deutschland. In H.-P. Müller & B. Wegener (Hrsg.), Soziale Ungleichheit und soziale Gerechtigkeit (S. 313- 333). Opladen: Leske & Budrich. Justice Sensitivity 64 Montada, L. (1995). Machen Gebrechlichkeit und chronische Krankheit produktives Altern unmöglich? In M.M. Baltes & L. Montada (Hrsg.). (1995). Produktives Leben im Alter (S. 382-392). Frankfurt: Campus. Montada, L. (1995). Moralische Entwicklung und moralische Sozialisation. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (S. 862-894). Weinheim: Psychologie Verlags Union. Montada, L., Becker, J., Schoepflin, U. & Baltes, P.B. (1995). Die internationale Rezeption der deutschen Psychologie. Psychologische Rundschau, 46, 186-199. Montada, L. & Kals, E. (1995). Perceived justice of ecological policy and proenvironmental commitments. Social Justice Research, 8, 305-327. Montada, L. & Oerter, R. (Hrsg.). (1995). Entwicklungspsychologie. Weinheim: Psychologie Verlags Union. Montada, L. & Reichle, B. (1995). Kritische Lebensereignisse: Wirkungen und Bewältigungsversuche bei erlebter Ungerechtigkeit. In K. Pawlik (Hrsg.), Bericht über den 39. Kongreß der Deutschen Gesellschaft für Psychologie in Hamburg 1994 (S. 830-831). Göttingen: Hogrefe. Reichle, B. (1995). Lastenverteilung als Gerechtigkeitsproblem: Umverteilungen nach der Geburt des ersten Kindes und ihre Folgen. In Zentrum für Gerechtigkeitsforschung an der Universität Potsdam (Hrsg.), Auseinandersetzung mit Verlusterfahrungen (S. 145-155). Potsdam: Zentrum fuer Gerechtigkeitsforschung an der Universität Potsdam. Schick, A., Schmitt, M., & Becker, J.H. (1995). Subjektive Beurteilung der Qualität von Laufschuhen. Psychologie und Sport, 2, 46-56. Schmitt, M. (1995). Politische Legitimation und kollektives Selbstwertgefühl durch Propaganda. Zeitschrift für Sozialpsychologie, 26, 119-121 [Rezension von: Gibas, M. & Schindelbeck, D. (Hrsg.) (1994). "Die Heimat hat sich schön gemacht ..." (Comparativ - Leipziger Beiträge zur Universalgeschichte und vergleichenden Gesellschaftsforschung, Band 4, Heft 3). Leipzig: Leipziger Universitätsverlag.]. Schmitt, M., Falkenau, K. & Montada, L. (1995). Zur Messung von Eifersucht über stellvertretende Emotionsbegriffe und zur Bereichsspezifizität der Eifersuchtsneigung. Diagnostica, 41, 131-149. Schmitt, M., Neumann, R. & Montada, L. (1995). Dispositional sensitivity to befallen injustice. Social Justice Research, 8, 385-407. Schmitt, M., Schick, A. & Becker, J.H. (1995). Subjective quality and subjective wearing comfort of running shoes. Trierer Psychologische Berichte, 22, Heft 2. 1996 Kals, E. & Odenthal, D. (1996). Über die Motive von Entscheidungen für konventionelle oder kontrolliert-biologische Nahrungsmittel. Zeitschrift für Gesundheitspsychologie, 4, 37-54. Kals, E. (1996). Are proenvironmental commitments motivated by health concerns or by perceived justice? In L. Montada & M. Lerner (Eds.), Current societal concerns about justice (S. 231-258). New York: Plenum Press. Kals, E. (1996). Motieven voor preventief en riskant gezondheidsgedrag ten aanzien van kanker (Motives of cancer preventive and health risk behaviors). Gedrag & Gezondheid, 24, 384- 391. Kals, E. (1996). Umweltschutz und potentiell konkurrierende Werte. In M. Zimmer (Hrsg.), Von der Kunst, umweltgerecht zu planen und zu handeln (Tagungsband, S. 238-240). Tübingen: Internationale Erich-Fromm Gesellschaft. Kals, E. (1996). Verantwortliches Umweltverhalten. Weinheim: Psychologie Verlags Union. Montada, L. & Lerner, M.J. (1996). Societal concerns about justice. New York: Plenum. Justice Sensitivity 65 Niehaus, M. & Montada, L. (1996). Behinderte in der Arbeitswelt: Wege aus dem Abseits. Frankfurt/M.: Campus. Reichle, B. (1996). Der Traditionalisierungseffekt beim Übergang zur Elternschaft. Zeitschrift für Frauenforschung, 14 (4), 70-89. Reichle, B. (1996). From is to ought and the kitchen sink: On the justice of distributions in close relationships. In L. Montada & M.J. Lerner (Eds.), Current societal concerns about justice (S. 103-135). New York: Plenum. Schmitt, M. & Mohiyeddini, C. (1996). Sensitivity to befallen injustice and reactions to a real life disadvantage. Social Justice Research, 9, 223-238. Schmitt, M. (1996). Individual differences in sensitivity to befallen injustice. Personality and Individual Differences, 21, 3-20. 1997 Becker, R. & Kals, E. (1997). Verkehrsbezogene Entscheidungen und Urteile: Über die Vorhersage von umwelt- und gesundheitsbezogenen Verbotsforderungen und Verkehrsmittelwahlen. Zeitschrift für Sozialpsychologie, 28, 197-209. Kaiser, A., & Maes, J. (1997). Situation in Regel- und Projektklassen. In Ministerium für Bildung, Wissenschaft und Weiterbildung Rheinland-Pfalz (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit: Abschlußbericht (S. 75-86). Mainz: Hase & Koehler. Kals, E. & Becker, R. (1997). Umweltschutz im Spannungsfeld konkurrierender Interessen. Eine Verkehrsstudie zu Mobilitätsentscheidungen. In E. Giese (Hrsg.), Psychologie für die Verkehrswende (S. 227-245). Tübingen: dgvt-Verlag. Kals, E. & Montada, L. (1997). Motive politischer Engagements für den globalen oder lokalen Umweltschutz am Beispiel konkurrierender städtebaulicher Interessen. Zeitschrift für Politische Psychologie, 5, 21-39. Maes, J. (1997). FEES - Die Fragebögen zur Erfassung der Einstellung zum Schulversuch. In Ministerium für Bildung, Wissenschaft und Weiterbildung Rheinland-Pfalz (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit: Abschlußbericht (S. 34-50). Mainz: Hase & Koehler. Maes, J. (1997). Gerechtigkeit: Ein Kriterium zur Bewertung des Modellversuchs. In Ministerium für Bildung, Wissenschaft und Weiterbildung Rheinland-Pfalz (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit: Abschlußbericht (S. 175-189). Mainz: Hase & Koehler. Maes, J. (1997). Nicht-kognitive Persönlichkeitsmerkmale. In Ministerium für Bildung, Wissenschaft und Weiterbildung Rheinland-Pfalz (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit: Abschlußbericht (S. 89-103). Mainz: Hase & Koehler. Maes, J. (1997). Gerechtigkeit als innerdeutsches Problem – Umrisse eines Forschungsprojekts. IPU-Rundbrief, 7, 37-43. Mohiyeddini, C. & Schmitt, M. (1997). Sensitivity to befallen injustice and reactions to unfair treatment in a laboratory situation. Social Justice Research, 10, 333-352. Montada, L. (1997). Gerechtigkeitsansprüche und Ungerechtigkeitserleben in den neuen Bundesländern. In: W.R. Heinz & S.E. Hormuth (Hrsg.), Arbeit und Gerechtigkeit im ostdeutschen Transformationsprozeß (S. 231-274). Opladen: Leske + Budrich. Schmitt, M. (1997). Interaktionistische Gerechtigkeitsforschung. In H. Mandl (Hrsg.), Bericht über den 40. Kongreß der Deutschen Gesellschaft für Psychologie in München 1996 (S. 372- 378). Göttingen: Hogrefe. Justice Sensitivity 66 Schmitt, M., Barbacsy, R. & Wunsch, U. (1997). Selbstbeteiligung bei Versicherungsfällen - gerechtigkeitspsychologisch betrachtet. Report Psychologie, 22(1), 44-59. 1998 Albs, B. (1998). Ein Beitrag zur Messung moralischer Emotionen: Das State-Trait- Schuldgefühle-Ausdrucksinventar. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 163-172). Weinheim: Juventa. Becker, R. (1998).Verantwortlichkeits- und Wertekonflikte bei der Verkehrsmittelwahl. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 133-146). Weinheim: Juventa. Boll, T. (1998). Intentionalitätstheoretische Forschungsstrategie für moralische Emotionen. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 173-187). Weinheim: Juventa. Dalbert, C. (1998). Das Gerechtigkeitsmotiv und die seelische Gesundheit. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 19-31). Weinheim: Juventa. Kals, E. (1998). Moralische Motive des ökologischen Schutzes globaler und lokaler Allmenden. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 117-132). Weinheim: Juventa. Kals, E. (1998). Übernahme von Verantwortung für den Schutz von Umwelt und Gesundheit. In E. Kals (Hrsg.), Umwelt und Gesundheit: Verknüpfung ökologischer und gesundheitlicher Ansätze (S. 101-118). Weinheim: Psychologie Verlags Union. Kals, E. (Hrsg.). (1998). Umwelt und Gesundheit: Verknüpfung ökologischer und gesundheitlicher Ansätze. Weinheim: Psychologie Verlags Union. Kals, E. & Montada, L. (1998). Persönlicher Gesundheitsschutz im Spiegel sozialer Verantwortung. Zeitschrift für Gesundheitspsychologie, 6, 3-18. Kals, E., Montada, L., Becker, R. & Ittner, H. (1998). Verantwortung für den Schutz von Allmenden. GAIA, 7 (4), 296-303. Kals, E., Schumacher, D. & Montada, L. (1998). Naturerfahrungen, Verbundenheit mit der Natur und ökologische Verantwortung als Determinanten naturschützenden Verhaltens. Zeitschrift für Sozialpsychologie, 29, 5-19. Maes, J. (1998). Belief in a just world and experiences in school. In European Association for Research on Adolescence (Ed.), The 6th biennial conference of the EARA in Budapest, Hungary. Scientific Programme. Maes, J. (1998). Eight Stages in the Development of Research on the Construct of Belief in a Just World. In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 163-186). New York: Plenum. Maes, J. (1998). Existentielle Schuld und Verantwortung für den Aufbau an ostdeutschen Hochschulen. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 99-114). Weinheim: Juventa. Maes, J. (1998). Geht es in der Schule gerecht zu? - Überzeugungen der Schülerinnen und Schüler und deren Folgen. In A. Kaiser & R. Kaiser (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit. Abschlussuntersuchung in der Gymnasialen Oberstufe (MSS), (S. 60-66) [= Schulversuche und Bildungsforschung, 80/II]. Mainz: v. Hase & Koehler. Maes, J. (1998). Immanent and ultimate justice: Two ways of believing in justice. In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 9-40). New York: Plenum. Maes, J. (1998). Kontrollüberzeugungen: Schülerinnen und Schüler im Spannungsfeld zwischen vielfältigen Beeinflussungen und eigenen Handlungsmöglichkeiten. In A. Kaiser & R. Kaiser Justice Sensitivity 67 (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit. Abschlussuntersuchung in der Gymnasialen Oberstufe (MSS), (S. 66-77) [= Schulversuche und Bildungsforschung, 80/II]. Mainz: v. Hase & Koehler. Maes, J., Seiler, U. & Schmitt, M. (1998). Politische Einstellungen bei Ost- und Westdeutschen. Zeitschrift für Politische Psychologie, Sonderausgabe "Sozialisation und Identitäten", 34. Mohiyeddini, C. (1998). Sensibilität für widerfahrene Ungerechtigkeit als Persönlichkeitseigenschaft. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 201-212). Weinheim: Juventa. Mohiyeddini, C. & Montada, L. (1998) Belief in a Just World and Self-Efficacy in coping with observed Victimization: Results from a study about unemployment. In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 41-54). New York: Plenum. Montada, L. (1998). Belief in a Just World: A Hybrid of Justice Motive and Self-Interest? In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 217-246). New York: Plenum. Montada, L. (1998). Gerechtigkeitsmotiv und Eigeninteresse. Zeitschrift für Erziehungswissenschaften, 3, 413-430. Montada, L. (1998). Justice: Just a Rational Choice? Social Justice Research, 12, 81-101. Montada, L. & Lerner, M.J. (1998). An overview: Advances in belief in a just world theory and methods. In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 1-7). New York: Plenum. Montada, L. & Lerner, M.J. (Eds.) (1998). Responses to Victimizations and Belief in a Just World. New York: Plenum. Moschner, B. (1998). Ehrenamtliches Engagement und soziale Verantwortung. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 73-86). Weinheim: Juventa. Reichle, B. & Gefke, M. (1998). Justice of conjugal divisions of labor - You can't always get what you want. Social Justice Research, 3, 271-287. Reichle, B. & Schmitt, M. (1998). Verantwortung, Gerechtigkeit, Moral: Einführung in ausgewählte Untersuchungen aus der Arbeitsgruppe Leo Montadas. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 9-15). Weinheim: Juventa. Reichle, B. & Schmitt, M. (Hrsg.) (1998). Verantwortung, Gerechtigkeit und Moral. Weinheim: Juventa. Reichle, B. (1998).Verantwortlichkeitszuschreibungen und Ungerechtigkeitserfahrungen in partnerschaftlichen Bewältigungsprozessen. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 47-59). Weinheim: Juventa. Reichle, B., Schneider, A. & Montada, L. (1998). How do Observers of Victimization preserve their Belief in a Just World - Cognitively or actionally? Finding from a Longitudinal Study. In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 55-64). New York: Plenum. Sabbagh, C. & Schmitt, M. (1998). Exploring the structure of positive and negative justice judgments. Social Justice Research, 12, 381-396. Schmal, A. (1998). Zur Bedeutung von sozialen und temporalen Vergleichsprozessen sowie Gerechtigkeitsurteilen für die Arbeitszufriedenheit. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 61-70). Weinheim: Juventa. Schmitt, M. (1998). Gerechtigkeit und Solidarität im wiedervereinigten Deutschland. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 87-98). Weinheim: Juventa. Justice Sensitivity 68 Schmitt, M. (1998). Methodogical Strategies in Research to Validate Measures of Belief in a Just World. In L. Montada & M.J. Lerner (Eds.), Responses to Victimizations and Belief in a Just World (S. 187-216). New York: Plenum. Schmitt, M. & Maes, J. (1998). Perceived injustice in unified Germany and mental health. Social Justice Research, 11, 59-78. Schneider, A. (1998). Verantwortlichkeit im Prozess der Meisterung unfallbedingter Querschnittlähmung. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 33-46). Weinheim: Juventa. Seiler, U. (1998). Bilder über Projekt- und Regelklassen. In A. Kaiser & R. Kaiser (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit. Abschlussuntersuchung in der Gymnasialen Oberstufe (MSS), (S. 44-52) [= Schulversuche und Bildungsforschung, 80/II]. Mainz: v. Hase & Koehler. Seiler, U. (1998). Freizeitverhalten von Jugendlichen in Projekt- und Regelklassen. In A. Kaiser & R. Kaiser (Hrsg.), Entwicklung und Erprobung von Modellen der Begabtenförderung am Gymnasium mit Verkürzung der Schulzeit. Abschlussuntersuchung in der Gymnasialen Oberstufe (MSS), (S. 52-59) [= Schulversuche und Bildungsforschung, 80/II]. Mainz: v. Hase & Koehler. Seiler, U., Maes, J. & Schmitt, M. (1998). Nationalgefühle bei Ost- und Westdeutschen. Zeitschrift für Politische Psychologie, Sonderausgabe "Sozialisation und Identitäten", 34, Anhang. Steyer, R. (1998). Eigenschafts- und Zustandskomponenten im moralischen Urteil und Verhalten. In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 191-200). Weinheim: Juventa. Wahner, U. (1998). Neid: Wie wichtig sind Selbstwertbedrohung und Ungerechtigkeitserleben? In B. Reichle & M. Schmitt (Hrsg.), Verantwortung, Gerechtigkeit und Moral (S. 149-162). Weinheim: Juventa. 1999 Kals, E. (1999). Der Mensch nur ein zweckrationaler Entscheider? Zeitschrift für Politische Psychologie, 3, 267-293. Kals, E. (1999). "Warum schaden wir unserer eigenen Gesundheit, auch wenn wir es besser wissen?" Ein Interview mit der Gesundheitspsychologin PD Dr. Elisabeth Kals, geführt von Dr. Ute Ritterfeld. L.O.G.O.S. interdisziplinär, 7 (1), 22-27. Kals, E. & Montada, L. (submitted). Cancer prevention and reduction of cancer risks: reconstructed as a personal as well as a societal task. Kals, E. & Montada, L. (1999). Kooperatives Handeln aus psychologischer Sicht. In Vereinigung für Ökologische Ökonomie e.V. (Hrsg.), Theorie und Praxis des Kollektiven Handelns: Das Beispiel der Lokalen Agenda 21 (Schriftenreihe zur Politischen Ökologie, Bd. 8, S. 32-44). München: Ökom Verlag. Kals, E., Becker, R., Montada, L., & Ittner, H. (1999). Trierer Skalensystem zum Umweltschutz (TSU). In A. Glöckner-Rist & P. Schmidt (Hrsg.), ZUMA-Informationssystem. Ein elektronisches Handbuch sozialwissenschaftlicher Erhebungsinstrumente, Version 4.00. Mannheim: Zentrum für Umfragen, Methoden und Analysen. Kals, E., Becker, R. & Rieder, D. (1999). Förderung natur- und umweltschützenden Handelns bei Kindern und Jugendlichen. In V. Linneweber & E. Kals (Hrsg.), Umweltgerechtes Handeln: Barrieren und Brücken. Heidelberg: Springer. Kals, E., Held, E. & Montada, L. (1999). Fleischkonsum und gesellschaftspolitische Engagements mit Folgen für die allgemeine Fleischproduktion: Ein Vergleich ihrer motivationalen Grundlagen. Zeitschrift für Gesundheitspsychologie, 7 (1), 1-20. Justice Sensitivity 69 Kals, E., Schumacher, D. & Montada, L. (1999). Emotional affinity toward nature as a motivational basis to protect nature. Environment & Behavior, 31 (2), 178-202. Krampen, G., Montada, L. & Burkard, P. (1999). Evaluationskriterien für Forschung und Lehre an psychologischen Universitätsinstituten mit Hauptfachausbildung: Befunde einer Expertenbefragung in eigener Sache. In G. Krampen, H. Zayer, W. Schönpflug & G. Richardt (Hrsg.), Beiträge zur Angewandten Psychologie (S. 376-379). Bonn: Deutscher Psychologen Verlag. Krampen, G., Montada, L. & Burkard, P. (1999). Internationalität und Internationalisierung der deutschsprachigen Psychologie in der Expertenbeurteilung. Report Psychologie, 7, 474-510. Linneweber, V. & Kals, E. (Hrsg.) (1999). Umweltgerechtes Handeln: Barrieren und Brücken.. Heidelberg: Springer. Maes, J. (1999). Gerechtigkeitsempfinden und Lernen. Der Glaube an eine gerechte Welt im Kontext von Schule und Weiterbildung. Grundlagen der Weiterbildung. Zeitschrift für Weiterbildung und Bildungspolitik im In- und Ausland, 10, 56-59. Maes, J. & Schmitt, M. (1999). More on ultimate and immanent justice: Results from the research project "Justice as a problem within reunified Germany". Social Justice Research, 12, 65-78. Maes, J., Schmitt, M. & Seiler, U. (1999). Ungerechtigkeit im wiedervereinigten Deutschland und psychosomatisches Wohlbefinden. In A. Hessel, M. Geyer & E. Brähler (Hrsg.), Gewinne und Verluste sozialen Wandels. Globaisierung und deutsche Wiedervereinigung aus psychosozialer Sicht (S. 182-199). Stuttgart: Enke. Maes, J., Schmitt, M. & Seiler, U. (1999). Zukunft Mensch im vereinigten Deutschland aus der Sicht von Ostdeutschen und Westdeutschen. In G. Krampen, H. Zayer, W. Schönpflug & G. Richardt (Hrsg.), Beiträge zur angewandten Psychologie 1999: Zukunft Mensch - die Republik im Umbruch (S. 399-402). Bonn: Deutscher Psychologen-Verlag. Maes, J., Schmitt, M. & Seiler, U. (1999). Wer wünscht die Mauer zurück? Das menschliche Klima in Deutschland und seine Folgen. In H. Berth & E. Brähler (Hrsg.), Deutsch-deutsche Vergleiche (S.28-43). Berlin: Verlag Wissenschaft und Forschung. Montada, L. (1999). Gerechtigkeit als Gegenstand der Politischen Psychologie. Zeitschrift für Politische Psychologie, (7), Sonderheft, 5-22. Montada, L. (1999). Mediation bei Gerechtigkeitskonflikten. In A. Dieter, L. Montada & A. Schulze (Hrsg.), Konfliktmanagement und Gerechtigkeit. Frankfurt: Campus. Montada, L. (1999). Solidarität als Norm für soziales Handeln. Ethik und Sozialwissenschaften, (10) 2, 221-223. Montada, L. (1999). Umwelt und Gerechtigkeit. In V. Linneweber & E. Kals (Hrsg.), Umweltgerechtes Handeln: Barrieren und Brücken (71-91). Heidelberg: Springer. Montada, L. (1999). Psychologie der Mediation III. In Fernuniversität Hagen, Fachbereich Rechtswissenschaft. Weiterbildendes Studium Mediation. Montada, L. & Dieter, A. (1999). Gewinn- und Verlusterfahrungen in den neuen Bundesländern nach der Wiedervereinigung. In M. Schmitt & L. Montada (Hrsg.), Gerechtigkeitserleben und Befindlichkeiten im wiedervereinigten Deutschland (S. 19-46). Opladen: Leske + Budrich. Montada, L., Kals, E., & Becker, R. (1999). Trierer Bereitschaftsskalen zum Umwelt- und Gesundheitsschutz (TBUG). In A. Glöckner-Rist & P. Schmidt (Hrsg.), ZUMA- Informationssystem. Ein elektronisches Handbuch sozialwissenschaftlicher Erhebungsinstrumente, Version 4.00. Mannheim: Zentrum für Umfragen, Methoden und Analysen. Montada, L., Krampen, G. & Burkard, P. (1999). Persönliche und soziale Orientierungslagen von Hochschullehrern/innen der Psychologie zu Evaluationskriterien über eigene berufliche Leistungen - Befunde einer Expertenbefragung bei Professoren/innen und Privat- Justice Sensitivity 70 Dozenten/innen der Psychologischen Institute mit Hauptfachausbildung in der Bundesrepublik Deutschland. Psychologische Rundschau, 50, 69-89. Reichle, B. (1999). Wir werden Familie. Ein Kurs zur Vorbereitung auf die erste Elternschaft. Weinheim: Juventa. Reichle, B. & Montada, L. (1999). Übergang zur Elternschaft und Folgen: Der Umgang mit Veränderungen macht Unterschiede. In B. Reichle & H. Werneck (Hrsg.), Übergang zur Elternschaft. Aktuelle Studien zur Bewältigung eines unterschätzten Ereignisses (S. 205-224). Stuttgart: Enke. Reichle, B. & Werneck, H. (1999). Geburt des ersten Kindes und Partnerschaftsentwicklung: Ein Überblick. In B. Reichle & H. Werneck (Hrsg.). Übergang zur Elternschaft. Aktuelle Studien zur Bewältigung eines unterschätzten Lebensereignisses (Der Mensch als soziales und personales Wesen, Bd. 16; S. 1-16). Stuttgart: Enke. Reichle, B. & Werneck, H. (Hrsg.) (1999). Übergang zur Elternschaft. Aktuelle Studien zur Bewältigung eines unterschätzten Lebensereignisses (Der Mensch als soziales und personales Wesen, Bd. 16). Stuttgart: Enke. Schmitt, M. (1999). Psychologische Personalauswahl. Zeitschrift für Arbeits- und Organisationspsychologie, 17, 232-234 [Rezension von: Schuler, H. (1998). Psychologische Personalauswahl (2., unveränderte Auflage). Göttingen: Verlag für Angewandte Psychologie.]. Schmitt, M. (1999). Mother-daughter attachment and family cohesion: Single and multi construct latent state-trait models of current and retrospective perceptions. Magdeburger Arbeiten zur Psychologie, Heft 4, 1999. Schmitt, M. & Dörfel, M. (1999). Procedural injustice at work, justice sensitivity, job satisfaction and psychosomatic well-being. European Journal of Social Psychology, 29, 443- 453. Schmitt, M. & Maes, J. (1999). Vorschlag zur Vereinfachung des Beck-Depressions-Inventars (BDI). Magdeburger Arbeiten zur Psychologie, Heft 2, 1999. Schmitt, M. & Montada, L. (Hrsg.) (1999). Gerechtigkeitserleben im wiedervereinigten Deutschland. Opladen: Leske + Budrich. Schmitt, M. & Montada, L. (1999). Psychologische, soziologische und arbeitswissenschaftliche Analysen der Transformation nach der deutschen Wiedervereinigung. In M. Schmitt & L. Montada (Hrsg.), Gerechtigkeitserleben im wiedervereinigten Deutschland (S. 7-18). Opladen: Leske + Budrich. Schmitt, M., Maes, J. & Schmal, A. (1999). Ungerechtigkeitserleben im Vereinigungsprozess: Folgen für das emotionale Befinden und die seelische Gesundheit. In M. Schmitt & L. Montada (Hrsg.), Gerechtigkeitserleben im wiedervereinigten Deutschland (S. 169-212). Opladen: Leske + Budrich. Schmitt, M., Maes, J. & Seiler, U. (1999). Theoretische Überlegungen und empirische Befunde zur Meßäquivalenz und strukturellen Invarianz von Indikatoren der seelischen Gesundheit bei Ost- und Westdeutschen. Magdeburger Arbeiten zur Psychologie, Heft 1, 1999. Schmitt, M., Maes, J. & Seiler, U. (1999). Fällt die Mauer in den Köpfen der Deutschen? Eine Längsschnittuntersuchung zum Wandel der sozialen Identität Ost- und Westdeutscher. In G. Krampen, H. Zayer, W. Schönpflug & G. Richardt (Hrsg.), Beiträge zur angewandten Psychologie 1999: Zukunft Mensch – die Republik im Umbruch (S. 402-405). Bonn: Deutscher Psychologen-Verlag. Schmitt, M., Maes, J. & Seiler, U. (1999). Selbstabgrenzungen – Wandel und Funktion im Transformationsprozess. Report Psychologie, 24(11-12), 9-11. Schmitt, M., Maes, J. & Seiler, U. (1999). Soziale Identität als Gradmesser der menschlichen Annäherung im wiedervereinigten Deutschland. In H. Berth & E. Brähler (Hrsg.), Deutsch- deutsche Vergleiche (S. 160-174). Berlin: Verlag Wissenschaft und Forschung. Justice Sensitivity 71 Seiler, U., Maes, J. & Schmitt, M. (1999). Korrelate und Facetten des Nationalgefühls. Zeitschrift für Politische Psychologie, 7, Sonderheft "Sozialisation und Identitäten – Politische Kultur im Umbruch?", 121-136. Seiler, U., Maes, J. & Schmitt, M. (1999). Unterschiedliche Freizeitmuster in den alten und neuen Bundesländern. In G. Krampen, H. Zayer, W. Schönpflug & G. Richardt (Hrsg.), Beiträge zur angewandten Psychologie 1999: Zukunft Mensch – die Republik im Umbruch (S. 657-659). Bonn: Deutscher Psychologen-Verlag. Steyer, R., Schmitt, M. & Eid, M. (1999). Latent state-trait theory and research in personality and individual differences. European Journal of Personality, 13, 389-408. 2000 Dieter, A., Montada, L. & Schulze, A. (Hrsg.). (2000). Gerechtigkeit im Konfliktmanagement und in der Mediation. Frankfurt/M.: Campus. Kals, E. (2000). Gefühle, die unser umweltbezogenes Handeln steuern. In E. Kals, N. Platz & R. Wimmer (Hrsg.), Emotionen in der Umweltdiskussion (S. 127-140). Wiesbaden: Deutscher Universitätsverlag. Kals, E. & Ittner, H. (2000). Ökologisch relevante Lebensqualitäten: Vom Singular zum Plural. In M. Bullinger, J. Siegrist & U. Ravens-Sieberer (Hrsg.), Lebensqualitätsforschung. Jahrbuch Medizinische Psychologie, 18 (S. 368-382). Göttingen: Hogrefe. Kals, E. & Russell, Y. (2000). Umweltschützendes Handeln: Eine rationale Entscheidung für den Gesundheitsschutz? Umweltpsychologie, 4 (2), 44-59. Kals, E., Platz, N. & Wimmer, R. (Hrsg.). (2000). Emotionen in der Umweltdiskussion. Wiesbaden: Deutscher Universitätsverlag. Kals, E., Russell, Y. & Homburg, A. (2000). Die überwindbare Kluft umwelt- und gesundheitspsychologischer Forschung. Umweltpsychologie, 4 (2), 2-6. Krampen, G. & Montada, L. (2000). Zum Entwicklungsstand der Gesundheitspsychologie im Kontext der Grundlagen- und Anwendungsfächer der Psychologie. Zeitschrift für Gesundheitspsychologie, 8 (1), 1-7. Maes, J. & Schmitt, M. (2000). Psychosoziales Problemverhalten und Vergangenheitsverklärung im wiedervereinigten Deutschland. Psychosozial, 23 (2), 85-96. Maes, J., Schmitt, M. & Seiler, U. (2000). Politischer Konservatismus und der Glaube an Gerechtigkeit. Zeitschrift für Politische Psychologie, 8, 39-53. Montada, L. (2000). Mediation bei Gerechtigkeitskonflikten. In A. Dieter, L. Montada & A. Schulze (Hrsg.), Konfliktmanagement und Gerechtigkeit. Frankfurt: Campus. Montada, L. (2000). Psychologie der Gefühle und Umweltpsychologie. In E. Kals, N. Platz & R. Wimmer (Hrsg.), Emotionen in der Umweltdiskussion (S. 19-37). Wiesbaden: Deutscher Universitätsverlag. Montada, L. (2000). Psychologie der Mediation I – Eine psychologische Konzeption der Mediation. Eine psychologische Kritik von Mythen in der Mediation. Soziale Konflikte als Probleme und als Entwicklungschancen. In Fernuniversität Hagen, Fachbereich Rechtswissenschaft. Weiterbildendes Studium Mediation. Montada, L. (2000). Psychologie der Mediation II – Fragen, Ziele und Probleme in einzelnen Phasen des Mediationsprozesses. In Fernuniversität Hagen, Fachbereich Rechtswissenschaft. Weiterbildendes Studium Mediation. Montada, L. (2000). Rechtssoziologische Aspekte der Wiedervereinigung. In H. Dreier (Hrsg.), Rechtssoziologie am Ende des 20. Jahrhunderts (S. 252-288). Tübingen: Mohr-Siebeck. Montada, L. & Kals, E. (2000). Political implications of psychological research on ecological justice and proenvironmental behaviors. International Journal of Psychology, 35, 168-176. Justice Sensitivity 72 Reichle, B. (2000). Nonsupport in Partnerschaften: Die negative Seite sozialer Unterstützung. In E. Witte & C. Bleich (Hrsg.), Stress und soziale Unterstützung – Sozialpsychologische Perspektiven (S. 89-111). Lengerich: Pabst. Schmitt, M. (2000). Mother-daughter attachment and family cohesion: Single and multi construct latent state-trait models of current and retrospective perceptions. European Journal of Psychological Assessment, 16, 115-124. Schmitt, M. & Maes, J. (2000). Vorschlag zur Vereinfachung des Beck-Depressions-Inventars (BDI). Diagnostica, 46, 38-46. Steyer, R., Schmitt, M. & Eid, M. (2000). Latent state-trait theory and research in personality and individual differences. Magdeburger Arbeiten zur Psychologie, Heft 6, 2000. Schmitt, M., Behner, R., Montada, L., Müller, L. & Müller-Fohrbrodt, G. (2000). Gender, ethnicity, and education as privileges: Exploring the generalizability of the existential guilt reaction. Social Justice Research, 13, 313-337. Syme, G., Kals, E., Nancarrow, B. & Montada, L. (2000). Ecological risks and community perceptions of fairness and justice: A cross-cultural model. Risk Analysis, 20 (6), 905-916. 2001 Kals, E. (2001). Responsibility appraisals of health protection. In H.-W. Bierhoff & A.E. Auhagen (Eds.), Responsibility - the many faces of a social phenomenon (pp. 127-138). London/New York: Routledge. Kals, E. & Kärcher, J. (2001). Mythen in der Wirtschaftsmediation. Wirtschaftspsychologie, 2, 17-27. Kals, E. & Maes, J. (2001). Umweltmediation: Geschichte, Besonderheiten und Zukunftspotential. Forum Mediation, 1 (4), 14-19. Kals, E. & Montada, L. (2001). Health behavior: An interlocking personal and social task. Journal of Health Psychology, 6 (2), 131-148. Kals, E. & Russell, Y. (2001). Individual conceptions of justice and their potential for explaining proenvironmental decision making. Social Justice Research. Special issue: Applying social justice research to environmental decision making, 14 (4), 367-385. Kals, E. & Webers, T. (2001). Wirtschaftsmediation als alternative Konfliktlösung. Wirtschaftspsychologie, 2, 10-16. Kals, E., Ittner, H. & Montada, L. (2001). Wahrgenommene Gerechtigkeit restriktiver Umweltpolitiken. In Umweltbundesamt (Hrsg.), Perspektiven für die Verankerung des Nachhaltigkeitsleitbildes in der Umweltkommunikation (S, 166-187). Berlin: Erich Schmidt Verlag. Kals, E., Maes, J. & Becker, R. (2001). The overestimated impact of self-interest and the underestimated impact of justice motives. Trames. Journal of Humanities and Social Scienes 55 (3), 269-287. Maes, J. & Schmitt, M. (2001). Last und Lust der multikulturellen Gesellschaft - Ausländerfeindlichkeit und Ausländerfreundlichkeit in Deutschland. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit (S. 487-489). Bonn: Deutscher Psychologen-Verlag. Maes, J., Montada, L. & Schmitt, M. (2001). Wie Erfahrungen mit Ungerechtigkeit und Mobbing in Schule und Beruf die Bereitschaft zum lebenslangen Lernen beeinflussen können. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit (S. 369-372). Bonn: Deutscher Psychologen-Verlag. Maes, J., Schmal, A. & Schmitt, M. (2001). Arbeitslosigkeit aus einer gerechtigkeitspsychologischen Perspektive. In J. Zempel, J. Bacher & K. Moser (Hrsg.), Justice Sensitivity 73 Erwerbslosigkeit – Ursachen, Auswirkungen und Interventionen (S. 187-205). Opladen: Leske + Budrich. Maes, J., Schmitt, M. & Montada, L. (2001). Lifelong learning and past experiences in school and on the job. In European Association of Work and Organizational Psychology (Ed.), 10th European Congress on Work and Organizational Psychology in Prag. Globalization – opportunities and threats. Book of Abstracts (p. 215). Prag: EAWOP. Maes, J. (2001). Solidarität – eine Frage der Persönlichkeit? Das Beispiel der Solidarität Westdeutscher mit Ostdeutschen. In H.-W. Bierhoff & D. Fetchenhauer (Hrsg.), Solidarität, Konflikt, Umwelt und Dritte Welt (S. 293-320). Opladen: Leske + Budrich. Maes, J. & Schmitt, M. (2001). Protestantische-Ethik-Skala (PES): Messeigenschaften und Konstruktvalidität. In B. B. Seiwald, J. Guthke, H. Petermann, J. F. Beckmann & M. Roth (Hrsg.), 6. Arbeitstagung der Fachgruppe für Differentielle Psychologie, Persönlichkeitspsychologie und Psychologische Diagnostik der Deutschen Gesellschaft für Psychologie: Abstracts & Programm (S. 97-98). Leipzig: Leipziger Universitätsverlag. Maes, J. & Delahaye, M. (2001). Umgang mit dem Schönheitskult – Aufriss einer Attraktivitätsforschung unter gerechtigkeitspsychologischer Perspektive. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 256- 260). Bonn: Deutscher Psychologen-Verlag. Maes, J. & Kals, E. (2001). Attributionen für schulischen (Miss)-Erfolg – Ein Plädoyer zur Beachtung der Vielfalt erlebter Ursachen. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 365-368). Bonn: Deutscher Psychologen- Verlag. Maes, J. (2001). Tourismus als vernachlässigtes Anwendungsfeld und Zukunftsaufgabe für PsychologInnen im neuen Jahrhundert. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 547-550). Bonn: Deutscher Psychologen- Verlag. Maes, J. & Jessen, K. (2001). Animation im Urlaub – Defizite und Desiderata im Meinungsbild von Flugreisenden. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 559-561). Bonn: Deutscher Psychologen-Verlag. Maes, J. (2001). Rezension von „Wolfgang Mertens & Bruno Waldvogel (Hrsg.), Handbuch psychoanalytischer Grundbegriffe“. Psychologische Revue 0, 76-78. Montada, L. (2001). Gerechtigkeit und Sozialneid. In Berliner Debatte Initial, 3, Neid und Gerechtigkeit, 48-57 Montada, L. (2001). Solidarität mit der Dritten Welt. In: Bierhoff, H.-W. & Fetchenhauer, D. (Hrsg.), Solidarität: Konflikt, Umwelt, Dritte Welt, (S. 65-92). Opladen: Leske und Budrich. Montada, L. (2001). Denial of responsibility. In A.E. Auhagen & H.W. Bierhoff, Responsibility – the many faces of a social phenomenon (S. 79-92). London: Routledge. Montada, L. (2001). Justice to the justice motive. In M. Ross & D.T. Miller (Eds.), The justice motive in everyday life. New York: Cambridge University Press. Montada, L. (2001). The many faces of justice. In International Encyclopedia of Social and Behavioral Sciences. London: Elsevier. Montada, L. & Kals, E. (2001). Mediation. Ein Lehrbuch für Psychologen und Juristen. Weinheim: PVU. Justice Sensitivity 74 Müller, M. & Kals, E. (2001). Gesundheit im Spiegel der Umwelt. In Bundesvereinigung für Gesundheit e.V. (Hrsg.), Gesundheit 3 (Loseblattsammlung VI 8, S. 1-22). Neuwied: Luchterhand. Schimmelpfeng, A. & Maes, J. (2001). Psychologische Imageforschung im Tourismusbereich – Eine Studie zum Image der Insel Sylt. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 555-558). Bonn: Deutscher Psychologen- Verlag. Schmiedecke, C. & Maes, J. (2001). Online-/Offline-Kundenmanagement in der Reisebranche: Eine psychologische Analyse. In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 562-563). Bonn: Deutscher Psychologen-Verlag. Schmitt, M. (2001). Plädoyer für eine moralische Bildungsinitiative. Zeitschrift für Soziologie der Erziehung und Sozialisation, 21, 103-105 [Rezension von: Lind, G. (2000). Ist Moral lehrbar? Berlin: Logos.]. Schmitt, M., Maes, J. & Seiler, U. (2001). Messäquivalenz und strukturellen Invarianz von Indikatoren der seelischen Gesundheit bei Ost- und Westdeutschen. Zeitschrift für Differentielle und Diagnostische Psychologie, 21, 87–99. Schmitt, M., Reichle, B. & Maes, J. (2001). Responsibility and attitudes towards the disadvantaged. In H.W. Bierhoff & A.E. Auhagen (Eds.), Responsibility – the many faces of a social phenomenon (pp. 167-178). London: Routledge. Schmitt, M. & Jores, H. (2001). Erbschaftskonflikte: Welche Rolle spielt das Gerechtigkeitsempfinden? In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit (S. 502-505). Bonn: Deutscher Psychologen-Verlag. Wallerius, A. & Maes, J. (2001). Psychologische Marktforschung im Tourismus – sind Reisemotive „im Feld“ untersuchbar? In Deutsche Psychologen Akademie (Hrsg.), Psychologie am Puls der Zeit – Beiträge zum Psychologentag 2001/21. Kongress für Angewandte Psychologie des BDP in Bonn (S. 551-554). Bonn: Deutscher Psychologen- Verlag. 2002 Becker, R., Russell, Y. & Kals, E. (2002). Wege aus der Allemde-Klemme: Ein Interventionsansatz zur Förderung ökologischer Verantwortung. Umweltpsychologie, 6 (1), 42-60. Dalbert, C. & Maes, J. (2002). Belief in a just world as a personal resource in school. In M. Ross & D. T. Miller (Ed.), The justice motive in everyday life (pp. 365-381). Cambridge: Cambridge University Press. Kals, E. (2002). Umweltpsychologie. In W. Dott, H.F. Merk, J. Neuser & R. Osieka (Hrsg.), Lehrbuch der Umweltmedizin (S. 725-729). Stuttgart: Wissenschaftliche Verlagsgesellschaft. Kals, E. (2002). Emotionen in der Umweltbildung. Fernstudium an der Universität Hagen. Hagen: Gesamthochschule. (164 Seiten). Kals, E. (2002). Mediation ökologischer Konflikte. In K.-H. Erdmann & C. Schell (Hrsg.), Naturschutz und gesellschaftliches Handeln (S. 197-211). Bonn: Bundesamt für Naturschutz (BfN). Kals, E. & Maes, J. (2002). Sustainable behavior and emotions. In P. Schmuck & W. Schultz (Eds.), Psychology of sustainable development (pp. 97-122). Norwell: Kluwer Academic Publishers. Kals, E., Leyendecker, A. & Ittner, H. (2002). Politische Mediation: Ein gerechtigkeitspsychologischer Ansatz. In E. Riehle (Hrsg.), Stadtentwicklung, Gemeinwesen und Mediation (S. 62-82). Münster/London: LIT Verlag. Kals, E., Müller, M. & Maes, J. (2002). Aufklärung hilft! – Mediation kommunalpolitischer Justice Sensitivity 75 Konflikte. Psychologie in Österreich 22, 227-232. Kals, E., Becker, R., Montada, L., Russell, Y. & Ittner, H. (2002). Wie lassen sich umweltpsychologische Befunde für die Praxis nutzbar machen? Umweltpsychologie 6 (1), 144-150. Krampen, G. & Reichle, B. (2002). Frühes Erwachsenenalter. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie. Ein Lehrbuch (Kapitel 8; 5. völlig überarbeitete Auflage; S. 319-349). Weinheim: PsychologieVerlagsUnion. Maes, J. & Schmitt, M. (2002). Die Förderung von Solidarität in der politischen Bildung aus sozialpsychologischer Sicht. Erwachsenenbildung 1/2002, 8-13. Maes, J. (2002). Ein weites Feld – Über den Bedarf an und Möglichkeiten von Tourismuspsychologie. Report Psychologie 27 (4), 328-239. Maes, J., Kielmann, S., Cohrs, C. & Moschner, B. (2002). Der 11. September und die Folgen – Interkulturelle Begegnungen und Tourismus. Report Psychologie 27 (4), 240-241. Maes, J. & Wallerius, A. (2002). ...zum Beispiel Reisemotive: Psychologische Aufgaben in der touristischen Marktforschung. Wirtschaftspsychologie 9 (3), 69-75. Maes, J. & Kals, E. (2002). Justice beliefs in school: Distinguishing ultimate and immanent justice. Social Justice Research 15, 227-244. Montada, L. (2002). Doing justice to the justice motive. In: M. Ross & D.T. Miller (Eds.), The justice motive in everyday life, (pp. 41-62) New York: Cambridge University Press. Montada, L. (2002). Justice, fairness and equity in social relations. In Weiner, J. (Ed.) Encyclopedia of Psychology. New York: Wiley. Montada, L. (2002). Kapitel 1: Fragen, Konzepte, Perspektiven. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (5. Auflage). Weinheim: Psychologie Verlags Union. Montada, L. (2002). Kapitel 11: Die geistige Entwicklung aus der Sicht Jean Piagets. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (5. Auflage). Weinheim: Psychologie Verlags Union. Montada, L. (2002). Kapitel 18: Moralische Entwicklung und moralische Sozialisation. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (5. Auflage). Weinheim: Psychologie Verlags Union. Montada, L. (2002). Kapitel 30: Delinquenz. In R. Oerter & L. Montada (Hrsg.), Entwicklungspsychologie (5. Auflage). Weinheim: Psychologie Verlags Union. Oerter, R., Montada, L. (Hrsg.) (2002). Entwicklungspsychologie (5. Auflage). Weinheim: Psychologie Verlags Union. Reichle, B. (2002). Partnerschaftsentwicklung junger Eltern: Wie sich aus der Bewältigung von Lebensveränderungen Probleme entwickeln. Zeitschrift für Familienforschung, Sonderheft 2 „Elternschaft heute“ (Hrsg. N. F. Schneider & H. Matthias-Bleck), 75-93. Reichle, B. (2002). Entwicklungsberatung für Familien in Übergangsphasen. In B. Rollett & H. Werneck (Hrsg.), Klinische Entwicklungspsychologie der Familie (S. 351-364). Göttingen: Hogrefe. Reichle, B. & Schmitt, M. (2002). Helping and Rationalization as Alternative Strategies for Restoring the Belief in a Just World: Evidence from Longitudinal Change Analyses. In M. Ross & D.T. Miller (Eds.), The justice motive in everyday life (pp. 127-148). New York: Cambridge University Press. Schmitt, M. & Maes, J. (2002). Stereotypic ingroup bias as self-defense against relative deprivation: Evidence from a longitudinal study of the German unification process. European Journal of Social Psychology, 32, 309-326. Justice Sensitivity 76 Stumm, R., Schmitt, M. & Gollwitzer, M. (2002). Persönlichkeit und Synkopenperformanz. Zeitschrift für Differentielle und Diagnostische Psychologie 23, 447-457. 2003 Montada, L. (2003). Justice, equity, and fairness in human relations. In J. Weiner (Ed.), Handbook of Psychology, Vol. 5 (Volume Editors: Th. Millon & M.J. Lerner)( pp. 537 – 568 ). Hoboken, NJ: Wiley. Montada, L. (2003). Die (vergessene) Gerechtigkeit in der Mediation. In G. Mehta & K. Rückert (Hrsg.), Mediation und Demokratie (S. 156-168). Heidelberg: Carl-Auer-Systeme Verlag. Montada, L. (2003). Mediation in Personalkonflikten. In G. Arentewicz & A. Fleissner (Hrsg.), Arbeitsplatzkonflikte (S. 377-395). Frankfurt am Main: Peter Lang GmbH, Europäischer Verlag der Wissenschaften. Montada, L. (2003) Gerechtigkeit: nur eine rationale Wahl? Jahrbuch der Deutschen Akademie der Naturforscher Leopoldina, 48, 475-490. Müller, M., Kals, E. & Müller, F. H. (2003). Lernverhalten und Eigennutz. Grundlagen der Weiterbildung. Zeitschrift für Weiterbildung und Bildungspolitik im In- und Ausland 2. Müller, M. (2003). Bedingungen der Konfliktlösung: Eine gerechtigkeitspsychologische Untersuchung am Beispiel eines lokalen Umweltkonflikts. Hamburg: Verlag Dr. Kovac. Reichle, B. (2003). Hochbegabt und dennoch Ärger in der Schule. Warum manchen Gymnasiasten höchste Intelligenz eher schadet als nützt. Pädagogik 55, 24-27. Russell, Y., Kals, E. & Montada, L. (2003). Generationengerechtigkeit im allgemeinen Bewusstsein? In Stiftung für die Rechte zukünftiger Generationen (Hrsg.), Handbuch Generationengerechtigkeit? Ökom-Verlag. Schmitt, M., Eid, M. & Maes, J. (2003). Synergistic person x situation interaction in distributive justice behavior. Personality and Social Psychology Bulletin 29, 141-147. In Druck Ittner, H., Kals E. & Müller, M. (in Druck). Umwelt in der Gesundheitspsychologie. In E.-D. Lantermann & V. Linneweber (Hrsg.), Grundlagen, Paradigmen und Methoden der Umweltpsychologie. Göttingen: Hogrefe. Kals, E. (in Druck). Umweltpsychologie und Umweltschutzverhalten. In Dott, Merk, Neuser & Osieka (Hrsg.), Lehrbuch der Umweltmedizin. Stuttgart: Wissenschaftliche Verlagsgesellschaft. Kals, E. (in Druck). Mediation ökologischer Konflikte. In G. Hübner, K.-H. Erdmann & C. Schell (Hrsg.), Soziales Marketing und Naturschutz. Münster: Landwirtschaftsverlag. Kals, E. (in Vorb.). Emotionen in der Umweltbildung. Fernstudium an der Universität Hagen. Hagen: Gesamthochschule. Kals, E. & Ittner, H. (in press). Children's environmental identity: Indicators and behavioral impacts. In S. Clayton & S. Opotow (Eds.), Identity and the natural environment. Kals, E. & Russell, Y. (in Druck). Umweltschützendes Handeln: Eine rationale Entscheidung für den Gesundheitsschutz? Umweltpsychologie. Kals, E., Müller, F. & Müller, M. (in Druck). Gesunde Umwelt. In D. Frey & C. Graf Hoyos (Hrsg.), Angewandte Psychologie. Band III: Gesellschaft, Kultur, Umwelt. Weinheim: PsychologieVerlagsUnion. Kals, E., Syme, G., Müller, M., Kärcher, J. & Nancarrow, B. (submitted). Perceived justice matters! Cross-cultural investigations of planning political problems. Krampen, G., Miller, M. & Montada, L. (in Druck). Bibliometrische Untersuchungsbefunde zur Geschichte der Klinischen Psychologie und Psychotherapie im 20. Jahrhundert. Zeitschrift für Klinische Psychologie. Justice Sensitivity 77 Maes, J. & Kals, E. (in press). Justice beliefs in school: Distinguishing ultimate and immanent justice. Social Justice Research. Müller, F. H., Louw, J. & Müller, M. (submitted). Why do they study? Study motives and study goals of South African psychology students. 
work_oz22lcjtsvcpnd7gfq6qdjxdom	----	Hip-Hop and Procedural Justice: Hip-Hop Artists' Perceptions of Criminal Justice From the SelectedWorks of Howard M Henderson 2012 Hip-Hop and Procedural Justice: Hip-Hop Artists' Perceptions of Criminal Justice Howard M Henderson, Texas Southern University Available at: https://works.bepress.com/howard_henderson/7/ https://works.bepress.com/howard_henderson/ https://works.bepress.com/howard_henderson/7/ http://raj.sagepub.com/ Race and Justice http://raj.sagepub.com/content/2/3/155 The online version of this article can be found at: DOI: 10.1177/2153368712443969 2012 2: 155Race and Justice Kevin F. Steinmetz and Howard Henderson Justice Hip-Hop and Procedural Justice: Hip-Hop Artists' Perceptions of Criminal Published by: http://www.sagepublications.com On behalf of: Official Journal of the American Society of Criminology, Division on People on Color and Crime can be found at:Race and JusticeAdditional services and information for http://raj.sagepub.com/cgi/alertsEmail Alerts: http://raj.sagepub.com/subscriptionsSubscriptions: http://www.sagepub.com/journalsReprints.navReprints: http://www.sagepub.com/journalsPermissions.navPermissions: http://raj.sagepub.com/content/2/3/155.refs.htmlCitations: What is This? - Jun 29, 2012Version of Record >> at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ http://raj.sagepub.com/content/2/3/155 http://www.sagepublications.com http://www.asc41.com/dir2/dpccindex.htm http://raj.sagepub.com/cgi/alerts http://raj.sagepub.com/subscriptions http://www.sagepub.com/journalsReprints.nav http://www.sagepub.com/journalsPermissions.nav http://raj.sagepub.com/content/2/3/155.refs.html http://raj.sagepub.com/content/2/3/155.full.pdf http://online.sagepub.com/site/sphelp/vorhelp.xhtml http://raj.sagepub.com/ http://raj.sagepub.com/ Articles Hip-Hop and Procedural Justice: Hip-Hop Artists’ Perceptions of Criminal Justice Kevin F. Steinmetz1 and Howard Henderson1 Abstract Despite its popularity, hip-hop has remained one of the most woefully underexamined topics within criminal justice and criminology. Given the reality that hip-hop music represents lyrical expressions from criminal justice’s most overrepresented popula- tion; the aforementioned paucity is all the more perplexing. Utilizing a latent and manifest content analysis of a random sample of 200 hip-hop songs, drawn from platinum-selling albums between the years 2000 and 2010, the current study exam- ined the manner and extent to which hip-hop artist’s portrayed the criminal justice system. The results demonstrated that law enforcement was the branch of the crim- inal justice system most likely to be mentioned by hip-hop artists (58.27% of men- tionings) followed by corrections (33.81%) and courts (7.91%). Subthemes that emerged from hip-hop discussions of law enforcement and corrections are also dis- cussed. Unfairness and powerlessness inductively emerged as the two general themes from the hip-hop criminal justice portrayals and are discussed within a pro- cedural justice framework. Suggestions for future research and policy implications are put forth. Keywords hip-hop, rap, music, procedural justice, criminal justice, content analysis 1 Sam Houston State University, College of Criminal Justice, Huntsville, TX, USA Corresponding Author: Kevin F. Steinmetz, Sam Houston State University, College of Criminal Justice, P.O. Box 2296, 816 17th St., Huntsville, TX, 77341, USA Email: kfs006@shsu.edu Race and Justice 2(3) 155-178 ª The Author(s) 2012 Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/2153368712443969 http://raj.sagepub.com at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Introduction From its inception, hip-hop music (commonly referred to as rap) has been vehemently critiqued for its violent, misogynistic, and antipolicing rhetoric, all the while simulta- neously being supported, by some, as an emergent mechanism in the furtherance of social justice. 1 The extant literature, concerning the relationship between hip-hop, deviance, crime, and the criminal justice system, posits that for the most part, hip-hop’s culture and lyrical content have led to increased acceptance of aggression, derogatory perceptions of women, and disrespect for the criminal justice system, most notably the police (Bogt, Engels, Bogers, & Klooserman, 2010; Johnson, Adams, Ashburn, & Reed, 1995; Nisker, 2007). Hip-hop music is derived from a subculture disproportionality impacted by the criminal justice system, with findings consistently indicating that African Americans receive higher rates of arrest and more severe forms of punishment than all other racial/ethnic groups in the United States (Rocque, 2011). Despite numerous studies (Alridge, 2005; Cheney, 2005; Dennis, 2007; Kubrin, 2005a, 2005b; Martinez, 1997; Nisker, 2007; Quinn, 1996; Rose, 1994) that mention the criminal justice reality within hip-hop music, to date, mainstream criminal justice and criminology journals have yet to systematically examine the symbiotic relationship between criminal justice and hip-hop music. The lack of hip-hop research in criminal justice and criminology journals is all the more perplexing, given the continual criminal justice ‘‘intra muros’’ entreat to mea- sure public perceptions of the criminal justice system and its impact of such percep- tions on behavioral outcomes (for example, see Gabbidon, Higgins, & Potter, 2011). Therefore, examining hip-hop’s criminal justice relevant thematic content provides an alternative, contemporary avenue for assessing public portrayals of the system. As a result, situating our research within the broader body of knowledge focused on exam- inations of criminal justice perceptions, this study utilizes a systematic latent and man- ifest content analysis to assess hip-hop artist’s portrayal of the criminal justice system. Hip-hop music involves spoken word laid over a backing music track, typically with a prominent beat. Much like other musical art forms, hip-hop, from its inception, has served as a communicator of cultural messages to an audience that had few other socially acceptable accessible outlets for expression (Alridge, 2005). In the art form’s early years, it was noted that ‘‘[h]ip-hop is like a CNN that black kids never had’’ (rap- per Chuck D as quoted in Gates, 1990). While contemporary social media outlets threaten this once predominant avenue for expression and cultural transmission—with research showing African Americans are just as likely to use social media as other racial/ethnic groups (Smith, 2011)—hip-hop continues to provide an outlet of and for this artistic expression for a culture historically denied the benefits of the principles theoretically extended by the Bill of Rights. The music is a medium for the transmis- sion of common experiences, struggles, and aspirations to other members of the hip- hop community and listeners from all strata of society: domestic and international. Given that this community also experiences an overrepresented reality within the criminal justice system, it is imperative that examinations of the perceptions of the system be assessed through the music. 156 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Hip-hop emerged from economically, politically, and socially marginalized racial minority groups who have been disproportionately affected by the criminal justice system (Tonry, 2011). Research has demonstrated this same group has been dispro- portionately targeted by criminal justice policies, such as the ‘‘War on Crime’’ and the ‘‘War on Drugs’’ (Agozino, 2000; Tonry, 2011). As such, over the past 25 years African American men have faced incarceration rates five to seven times greater than those of White men (Tonry, 2011). Because criminal justice has an ever present reality within the hip-hop community, as a result of the disproportionate criminal justice experience of the African American population, the discipline’s lack of hip-hop examinations is potentially overshadowing an intricate opportunity to understand the manner in which a cultural art form perceives institutionalized meth- ods of social control (i.e., criminal justice system). The disproportionate level of interaction between the hip-hop community and the criminal justice system gives the community more firsthand and vicarious experiences with the law enforcement apparatus, corrections system, and judicial process than many other groups. As such, the music generated by this population contains insights and narratives about criminal justice, which may be able to serve as a ‘‘report card’’ on the system and an alternative avenue by which to determine the public sentiment. In other words, the music of the hip-hop community may provide a unique lens in which to examine the impact criminal justice has on those under its purview—a perspective criminal justice and criminological researchers should not ignore. In the current article, we contribute to the scholarship on hip-hop by conducting a latent and manifest lyrical content analysis. To date, this is the first systematic induc- tive content analysis of hip-hop portrayals of criminal justice conducted within those journals focused on criminal justice and criminology. The primary research question driving this study is centered on the manner and extent to which hip-hop lyrics portray criminal justice. To address this question, a random sample of 200 hip-hop songs was drawn from all platinum-selling hip-hop albums from 2000 to 2010. The lyrics within these songs provide an opportunity to examine the perceptions of hip-hop artists regarding the criminal justice system and its primary components. As noted in the review of the literature, vicarious experiences of the criminal justice system are as significant as actual; therefore, lyrical analysis of a music genre coming from a group so intertwined with the criminal justice system is pertinent. Research has shown that personal and vicarious experiences of injustices threaten the systems legitimacy and lead to a host of outcomes (i.e., noncompliance with law enforce- ment, delinquency, etc.). Examination of criminal justice portrayals through the lyri- cal content of hip-hop music subsequently offers a rare contribution to the extant literature on cultural influences and relevancy within criminal justice. In addition, this research simultaneously provides an opportunity to situate hip-hop research within the broader body of recent literature focused on the measurement of public perceptions of the system and the outcomes thereof. We begin with a brief review of the previous literature comprising systematic and empirical analyses of hip-hop music, providing both the various foci of the research and their results. Then, a description of the methodology used in this content analysis Steinmetz and Henderson 157 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ will be summarized, which consists of a random sample of songs selected from platinum-selling albums utilizing a grounded theoretical-based coding approach. Lastly, the results of the analysis are provided which identify (1) various themes that emerged from the hip-hop lyrical portrayals of each component of the criminal justice system and (2) consistent underlying themes of unfairness and powerlessness which permeated the portrayals of criminal justice in rap. Examining Hip-Hop Despite hip-hop’s position as one of the most popular and potentially influential music forms in contemporary popular culture, relatively little academic attention has been directed toward it within criminal justice and criminology journals. As such, this review of the literature broadens itself beyond the scope of immediate disciplinary publications and reviews specifically systematically conducted empirical studies examining hip-hop. Previous empirical research on hip-hop generally consists of con- tent and legal analyses and behavioral outcomes. While there have been many notable essays and treatises written about hip-hop music (i.e., Dyson, 2007; Gilroy, 1993; Rose, 1994), the foci of this literature review remains limited to frame the state of sys- tematic and empirical research on hip-hop. An exception to this rule is a brief mention of Butler’s (2004, 2009) Hip-Hop Theory of Justice as it is one of the few theoretical pieces directly related to criminal justice and criminology. Several studies have examined hip-hop for its effect on the behavior of juveniles. These studies found correlations between hip-hop music and youth acceptance of vio- lence (Johnson et al., 1995; Johnson, Jackson, & Gatto, 1995), juvenile deviance (Mir- anda & Claes, 2004), and negative gender stereotypes (Bogt et al., 2010; Johnson et al., 1995). Each of these examinations found rap music or videos were associated with increased commission and acceptance of these behaviors. For example, Johnson, Jackson, and Gatto (1995) conducted a quasi-experimental study on a nonrandom sample of 46 adolescent African American males. In this study, they required one group to watch violent rap videos, one group to watch nonviolent videos, and a third control group which did not watch videos at all. After showing the videos and admin- istering a vignette survey, the study found adolescents exposed to violent rap videos were more likely to accept violence in the vignettes than the other two groups. Mahiri and Connor (2003) conducted a study that differed substantially from other behavioral outcomes studies that assume a simple causal link between exposure to hip-hop and negative outcomes. Their study is unique in that it is a qualitative exam- ination of the process youths go through while interpreting and internalizing their exposure to hip-hop’s various messages. The authors examined a nonrandom sample of 41 middle-school students and found that instead of passively receiving the meta- phorical messages conveyed through hip-hop, the youths were capable of critiquing, interpreting, and looking beyond hip-hop’s ascribed negative features (i.e., hedonism and misogyny) to find the positive or pro-social messages in the music. Like all research, hip-hop behavioral outcome studies are confronted with limita- tions. First, four out of five of these studies are limited by small sample sizes (n � 60; 158 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Johnson, Adams, et al.,1995; Johnson, Jackson, et al.,1995; Mahiri & Connor, 2003; Miranda & Claes, 2004). Second, all of these studies utilized nonrandom samples. Third, two of these studies examined acceptance of violence without drawing connec- tions between acceptance, commission, and willingness to commit violence (Johnson, Adams, et al.,1995; Johnson, Jackson, et al.,1995). Finally, four out of five of these studies assumed a simple causal link between exposure to hip-hop and negative out- comes rather than the dynamic process of internalizing and interpreting the art form (Bogt et al., 2010; Johnson, Adams, et al.,1995; Johnson, Jackson, et al.,1995; Miranda & Claes, 2004). Numerous studies in hip-hop have derived conclusions based on a content analysis of hip-hop lyrics (Armstrong, 2001; Knobloch-Westerwick, Musto, & Shaw, 2008; Kubrin, 2005a, 2005b; Weitzer & Kubrin 2009) or music videos (Conrad, Dixon, & Zhang, 2009; Zhang, Dixon, & Conrad, 2010). Collectively, these studies deductively found support of hip-hop’s violent endorsements, misogyny, materialism, colorism/ afro-centrism, and nihilism which results from living in harsh, oppressive, and other- wise negative conditions. For example, Weitzer and Kubrin (2009) conducted a con- tent analysis examining portrayals of women in a random sample of 403 gangsta rap songs in which they found that rap music ‘‘naturalizes certain alleged characteristics of men and women and, in accordance with these imputed differences, seeks to restrict, rather than broaden, women’s proper roles and resuscitate male domination’’ (Weitzer & Kubrin, 2009, p. 24). Hip-hop content analyses are not without limitations. First, these studies have largely focused exclusively on the perceptibly negative features of rap—that is mis- ogyny and violence. By negative in the previous context we are referring to the nature of research drawing attention to the socially disapproved themes predominant throughout hip-hop, without spending any or much time (1) contextualizing the art form, (2) discussing any socially redeeming qualities of the music, or (3) examining the lyrics in such a way as to provide an avenue for the messages contained in hip-hop to be expressed in the artist’s own words. As such, the research has been myopic in its examination of hip-hop lyrical content. Perhaps the only exception to this negative focus is Kubrin’s (2005b) study looking at nihilism in hip-hop music. As described in this study, however, nihilism—while not necessarily a negative feature of hip- hop in-and-of-itself—may be analogous to a negative characterization because it is a result of ‘‘living in an environment filled with violence and limited opportunities’’ (Kubrin, 2005b, p. 441) and is conducive to or correlated with negative outcomes. Second, content analyses of hip-hop have been exclusively deductive. While not diminishing the importance of deductive research, inductive research is useful for (1) providing alternative interpretations of hip-hop and (2) allowing the words and meanings of hip-hop artists to be heard in the research. Hip-hop has also been examined from a legal and theoretical-development perspec- tive. For example, by examining the use of hip-hop lyrics in criminal proceedings, Dennis (2007) found that hip-hop lyrics composed by defendants were being unfairly used by prosecutors as criminal evidence. The courts were failing to contextualize the hyperbolic nature of hip-hop lyrics. Rather, lyrics were taken at face value and Steinmetz and Henderson 159 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ submitted as criminal evidence against a defendant. In short, Dennis (2007) unveils a disjuncture between courts and their interpretation of hip-hop culture. Understanding this disjuncture is important because of its implications beyond the court room. For example, hip-hop artist Common created a controversy recently as a result of being invited to the White House by President Obama to read poetry to inner city youth (Marikar, 2011). Critics asserted Common’s lyrics incited violence and lacked artistic merit—an interpretation with a disjuncture similar to the one discussed by Dennis (2007). These critics chastised Common for a few violent lyrics while (1) ignoring the fact that most of his other lyrics are nonviolent and (2) not considering the context in which Common’s work is situated. One theoretical review warrants mention because of its direct relationship to the dynamic between hip-hop and criminal justice. Butler (2004, 2009), drawing from hip-hop music and culture, developed a hip-hop ‘‘theory of justice.’’ He asserts that within hip-hop lyrics lies a theory of punishment, which values the individual while simultaneously supporting the idea of ‘‘just desserts.’’ His scholarship represents the only academic attempt (known to the authors) to develop a theory of punishment pre- mised on the cultural expressions of the hip-hop culture. In sum, previous literature has predominantly been pessimistic toward hip-hop by primarily focusing on its perceived misogynistic, deviant, and violent undertones. In particular, studies which have focused on the relationship between hip-hop’s lyrical/ visual content and impact on behavioral outcomes have taken a jaundiced view toward hip-hop. Despite a few exceptions to this derogatory evaluative norm (Butler, 2004, 2009; Dennis, 2007; Mahiri &Connor, 2003), most empirical hip-hop research has fallen victim to the negative interpretive lens of examining the music. The current study builds on the previous literature in multiple dimensions. Unlike most of the prior research, this study will utilize an inductive approach which allows the words and meaning of hip-hop artists to be expressed and synthesized into a cohe- sive framework rather than imposing a deductive framework onto the lyrics. More importantly, the current study builds upon the extant literature by being the first to examine hip-hop and its discussion of criminal justice for insights which could provide an alternative framework of understanding the hip-hop community’s per- spective on the criminal justice system. In short, the overall goal of this research is to provide guidance for researches and policy makers regarding future criminal justice interactions with this population, which has typically perceived the system as unjust (Rocque, 2011). The Present Study The purpose of this study is to conduct a content analysis of hip-hop lyrical portrayals of the criminal justice system. ‘‘Criminal justice’’ is operationalized as the three branches (i.e., law enforcement, corrections, and courts). Hip-hop lyrics were cho- sen as the unit of analysis for two reasons. First, as highlighted in the literature, lim- ited research has been conducted specifically on hip-hop’s perspective of the criminal justice system even though this art form has expressed opinions about 160 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ social control and criminal justice since its inception (Butler, 2004). Despite the prevalence of criminal justice in hip-hop, scholars have yet to determine the nature and extent of these portrayals. Our perceptions-based examination situates itself within the broader body of knowledge on the criminal justice system which involves surveys of the general public to assess their perceptions of the system’s legitimacy (Henderson, Wells, Maguire, & Gray, 2010; Sunshine & Tyler, 2003; Tyler, 2006; Tyler & Huo, 2002). For this study, the lyrics provide the data for assessing hip-hop artists’ perceptions and, as detailed further in the discussion, have implications for understanding the hip-hop commu- nity’s perceived legitimacy of the criminal justice system. Second, hip-hop lyrics were also chosen as the unit of analysis as a result of its position at the center of many controversies in public discourse. For example, hip- hop has been derided as an endorser of violence against the police (Hamm & Ferrell, 1998). Considering the controversial nature of hip-hop, its implied message, increas- ing popularity, and representation of a community so intimately associated with the criminal justice system, who also happen to have a less favorable view of the system, researchers interested in social and cultural processes should look into hip-hop as a potential object of study. Methodology Sample Consistent with previous hip-hop research, the lyrics chosen for this sample were taken from 200 hip-hop songs randomly selected from 1,507 tracks on 87 platinum-selling hip-hop albums released between 2000 and 2010 using a random-platinum sampling procedure similar to those used by Kubrin (2005a, 2005b) and Weitzer and Kubrin (2009). 2 Platinum albums (1 million or more sold) were chosen to increase the likeli- hood of listenership. A lyric was operationalized as a single thought expressed through the words of the song. Due to their redundancy, ‘‘greatest hits’’ albums and soundtracks were excluded. Given that this research focuses on the perceptions of the American criminal justice system, the two platinum-selling European albums were also omitted. Multiple sources were consulted in order to develop the sample. Platinum status was determined by referring to data from the Recording Industry Association of America (RIAA). Amazon.com was used to provide track listings. ARTISTdirect.com, an online resource with information on music artists and groups, was utilized to (1) decide which songs were classified as rap/hip-hop and (2) provide track listing information unavail- able on amazon.com. lyrics from the randomly selected songs were obtained from The Original Hip-Hop/Rap Lyrics Archive (www.ohhla.com) with clarification of various slang terms provided by The Rap Dictionary (www.rapdict.org). Plan of Analysis The first level of analysis in the current study consisted of a latent content analysis which allowed for the inductive and systematic examination of the lyrics for the Steinmetz and Henderson 161 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ identification of common themes. Second, a manifest analysis was then used to develop frequencies for the latent themes so comparisons could be drawn between them. A song was considered to discuss criminal justice if it mentioned police, cor- rections, or courts in a literal and/or metaphorical sense. Below is a more detailed description of the inductive approach adopted in the current study. Coding Procedure Using a grounded theoretical approach (Charmaz, 2006), the qualitative notes derived from each lyric were initially coded based on the characterization or portrayal given by hip-hop artists regarding each branch of the criminal justice system. 3 A single word or phrase which best captured the characterization given by the artists was assigned to each lyric in this phase. In addition to reading each song’s lyrics multiple times, every song was listened to at least twice. Listening to the music allowed for consideration of the lyric’s musical context to ensure proper interpretation of hip-hop characterizations of criminal justice. The next stage of coding involved finding patterns among the criminal justice characterizations. To avoid detachment from textual context, any possible patterns were checked against the song’s lyrics to provide confirmation. The identified patterns constitute ‘‘thematic categories’’ of criminal justice portrayals. For example, in order to be categorized under policing, any lyric that characterized the police as ‘‘chasers’’ or ‘‘watchers’’ was coded as the thematic subcategory of police as predatory. Once the process of developing thematic categories was complete, two general themes emerged from the data: (1) the unfairness of the criminal justice system, and (2) feelings of powerlessness in confronting this unfairness. In this study, unfairness is defined as the exercise of authority which differentially applies to individuals based on ascribed attributes such as race, class, or gender. 4 Premised on previous research (Geis & Ross, 1998; Thomas & González-Prendez, 2009), powerlessness involves a perceived loss of control, an inability to (1) access ‘‘valued resources,’’ (2) overcome obstacles, and (3) seek resolutions. Drawing from this literature, we developed a def- inition of powerlessness which takes into consideration the criminal justice focus of the study. As such, we defined powerlessness as the perceived inability to seek resti- tutions and reparations through the legitimate legal apparatus and/or the inability to cope with challenges created by the imposition of authority. Results Table 1 presents the number of lyrical mentioning’s relative to each specific branch of the criminal justice system (i.e., law enforcement, corrections, and/or courts). In this sample, 128 separate lyrics made a mention of criminal justice in some form or fashion. In addition, some lyrics would mention multiple distinct components of the criminal justice system. As such, this study distinguishes between lyrics (single thoughts expressed by the words of the song) and mentionings (each time a distinct component of the criminal justice is mentioned in the lyrics, with multiple 162 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ mentionings occurring occasionally in a single lyric). Within the 128 lyrics that referred to criminal justice, there were 139 individual mentionings. Of these 139 mentionings, 81 (63.28%) mentioned law enforcement, 47 (36.72%) mentioned cor- rections, and 11 (8.59%) mentioned the criminal legal system. For purposes of this analysis, hip-hop portrayals of each branch are presented separately with their corre- sponding thematic categories. Example lyrics are pulled from the sample to provide illustrations of each theme. To ensure clarity of lyrical portrayals and to avoid miring the reader in excessive detail, only one or two lyrical examples of each theme are pro- vided, as the utilization of more would not provide additional clarity. As demonstrated in Table 1, of the three identifiable criminal justice themes, mentionings of law enforcement (58.27%) occurred most frequently. A chi-square test showed that mentionings of criminal justice were significantly more likely to be of law enforcement than the other two branches (w2 ¼ 80.69, df ¼ 3, p < .001). This find- ing is supported by the reality that law enforcement is the branch of criminal justice most likely to be encountered by the citizenry. Table 2 provides frequencies for the thematic categories under each criminal justice branch to provide an examination of the extent of these mentionings. The reader should note that because of the infrequency of lyrics relevant to the judicial system, thematic categories could not be adequately developed. Nonetheless, this data remains useful for the general conclusions drawn and will be highlighted in the dis- cussion section. Chi-square tests were run to determine the prominence of each respective subtheme within law enforcement and correctional mentionings. The results of the chi-square tests are discussed within their respective subthemes. These tests assess the significant likelihood of a particular subtheme portrayal within a lyric. A Hip-Hop’s Portrayal of Law Enforcement The most discussed branch of the criminal justice system was law enforcement (n ¼ 81; 58.27% of lyrics). There are three subthemes in law enforcement mentionings which emerged—law enforcement as hunters, law enforcement as oppressors, and law enforcement as illegitimate. A degree of conceptual overlap between these categories exists. For example, various aspects of law enforcement can be viewed as both oppressive and illegitimate, such as in a case of police corruption. As a result, Table 1. Overall Criminal Justice Themes Lyrical theme N % w2 Law Enforcement 81 58.27 Corrections 47 33.81 Courts 11 7.91 Total 139 80.69*** Note. Percentages will total more than 100% due to rounding. ***p < .0001. Steinmetz and Henderson 163 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ rather than creating mutually exclusive categories, this analysis focused primarily on distinguishing the different qualities of the portrayals. Law enforcement as predatory. In the hip-hop lyrics within this sample, law enforce- ment officers are often described in a way that makes them seem predatory (n ¼ 43; 43.88%). Of the law enforcement subthemes, discussing law enforcement, the chi- square test demonstrated that the category law enforcement as predatory was signif- icantly more likely to be mentioned than any of the other themes within hip-hop dis- cussions of law enforcement (w2 ¼ .309, df ¼ 4; p < .001). Within this sample, rap artists often portrayed police as those who chase, stalk, watch, catch, and cage. Taken together, these portrayals characterize the police as predatory. Jay-Z provides an example of hip-hop’s portrayal of law enforcement as predatory in ‘‘December 4th’’ (2003) where he raps, ‘‘Goodbye to the game all the spoils, the adrenaline rush / your blood boils, you in a spot, knowin’ cops could rush / at you in the drop, you so easy to touch.’’ In other words, the cops are portrayed as a lurking threat, as Jay-Z engages in a drug deal, he knows the police could be lurking out beyond his sensory range, ready to strike as he places himself in the vulnerable position of committing a crime. Law enforcement as oppressors. Another way in which law enforcement is char- acterized by hip-hop artists is as oppressors (n ¼ 20; 20.41%; w2 ¼ 20.753; df ¼ 4; p > .05). Here, we find the oppression enacted by police officers taking two general forms. The first being in the form of direct oppression which involves law enforce- ment directly engaging in activities perceived as oppressive. Direct oppression is often Table 2. Identified Subthemes of Criminal Justice Branch Mentioning’s Focus of criminal justice Branch mentionings N % w2 Law enforcement as predatory 43 43.88 0.309*** as oppressors 20 20.41 20.753 as illegitimate 21 21.43 18.778 passive and indirect references 14 14.29 34.679 Total 98 Corrections interferes with social ties 47 53.41 6.149*** conditions and effects 8 9.09 20.447 oppressive 13 14.77 9.383 punishment as appropriate 9 10.23 17.894 nondescript negative 5 5.68 29.128 passive and indirect references 6 6.82 26.064 Total 88 Note. Percentages will not total more than 100% due to rounding. ***p < .001. 164 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ lyrically expressed as cops acting in a way that impedes on hip-hop artist’s upward mobility and the predatory behavior of law enforcement. Under direct oppression, the hip-hop artist’s environment, sense of safety, and security are affected by the police. The second form is indirect oppression, in which law enforcement actions, while not necessarily oppressive in-and-of themselves, become oppressive as they contribute to an already negative or harsh environment hip-hop artists find themselves in. These portrayals involved a discussion of the negative features in their lives or environ- ment such as poverty or violence in which the police were included as an additional negative feature. Jay-Z expresses direct oppression by discussing the police as inhibitors of upward mobility. He notes, ‘‘You know why they call The Projects a project, because it’s a project! / an experiment, we’re in it, only as objects / and the object for us to explore our prospects / and sidestep cops on the way to the top—yes!’’ (‘‘Kingdom Come,’’ 2006). In this song, Jay-Z describes selling drugs as a means (of very few available) to achieving socioeconomic upward mobility. In the aforementioned lyric, the cops are portrayed as an obstacle that must be ‘‘sidestepped’’ to climb the socioeconomic ladder. We also find this example to be one of indirect oppression as well because ‘‘The Projects’’—housing specifically built for the impoverished—is associated with poverty. As such, any actions by the police which must be ‘‘sidestep[ped]’’ as the art- ists ‘‘explore [their] prospects’’ are viewed as oppressive because it contributes to the negative lived experience of poverty (Jay-Z, ‘‘Kingdom Come,’’ 2006). Law enforcement as illegitimate. In this category, police as illegitimate, we find law enforcement portrayed as liars, manipulators, harassers, corrupt, violent, dis- criminatory, and impotent (n ¼ 21; 21.43%; w2 ¼ 18.778; df ¼ 4; p > .05). It is in this characterization where hip-hop focuses on portraying law enforcement as deserving of none of the legitimacy it currently holds. Law enforcement is stripped of its image of altruism and its order-protecting veneer. Hip-hop artists portray the police as defaul- ters on the notion of protecting and serving as opposed to preservers of the peace. Law enforcement as illegitimate has a great deal of overlap with law enforcement as oppression because some of the same police behaviors are described in both, such as in cases of police brutality. The important distinction between these two categories is that portrayals of law enforcement as oppression focuses on the police contribution to social and psychological distress experienced by hip-hop artists and the law enforcement intention to keep the hip-hop community in their current social position, while law enforcement as illegitimate focuses on the police contradiction to that very image that supposedly gives them legitimacy. As an example of this conceptual over- lap, police corruption (like a police officer stealing drugs from a hip-hop artists/ dealer) can simultaneously act to abuse hip-hop artists (oppressive) while eroding the image of law enforcement as just and righteous (illegitimate). As mentioned previously, many topics are expressed by hip-hop artists that portray the police as illegitimate. Each one of these conveys an improper or poor exercise of police power and authority. For example, Snoop Dogg (‘‘Set It Off’’) discusses police brutality when he raps, ‘‘It’s somethin bout these motherfuckin’ West coast G’s / make Steinmetz and Henderson 165 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ that cheese, when the cops come you bet’ not freeze / blast on ’em like the Genovese, they yo’ enemies / lock you up and fuck you up / talk shit to you beat you down then cuff you up / and leave you in a cell stuffed (damn!) / I ain’t got no money for bail, that’s real as fuck (f’real)’’ (‘‘Set It Off,’’ 2000). Here, the police are said to imprison and brutalize people with the implication that the treatment is undeserved. As such, Snoop Dogg portrays the police as antagonists who need to be deterred from action through gunfire. Passive and indirect references. The final category for hip-hop discussions of law enforcement is the passive and indirect references category which serves as a ‘‘catch-all’’ including mentions of the police that do not fit into the aforementioned sections (n ¼ 14; 14.29%; w2 ¼ 34.679; df ¼ 4; p > .05). There are four types of lyrics which fall into this category. First are lyrics which provide a negative view of the police but do not provide enough detail to categorize the lyric as law enforcement as predatory, oppression, or illegitimate. For example, in ‘‘I’m With Whateva’’ (2005), Notorious B.I.G. states, ‘‘If you don’t love yourself, I’ll make you see your own heart / and we don’t like the NARCs, stay away from the cell.’’ Here, Notorious B.I.G. conveys the police (‘‘NARCs’’) as negative but does not provide any other details to contextualize his portrayal. Second, this category includes lyrics which refer to the titles of other songs containing the words ‘‘cop’’ or ‘‘police.’’ As an example, Snoop Dogg raps in his song ‘‘Pimp Slapp’d’’ (2002), ‘‘You’re not able to compete with the heat that I drop / and I still ain’t been paid for ‘1-8-7 on a cop.’’’ Here, Snoop Dogg is not talking about law enforcement per se but is only discussing a song with ‘‘cop’’ in the title. Third, neutral depictions of law enforcement are included in this category such as when the police are described as crime stoppers. Finally, this cate- gory also included lyrics that fit into other categories but also had a component that did not logically align with one of the main categories. For example, in Wyclef Jean’s ‘‘Thug Angels’’ (2000) he raps ‘‘Police is in the news, watch yourself. Ya’ll saw what they did to Diallo.’’ Here, through the reference to police shooting victim Amadou Diallo, the police are recognized as possessing the ability to illegitimately exercise extreme force—placing this lyric into police as illegitimate. In the context of the rest of the song, however, this lyric also serves to continue Wyclef’s argument that the police are generally a nuisance which is a characterization that does not necessarily fit into the main categories. Summary. Hip-hop portrayals of law enforcement, according to this content analy- sis, generally take three forms. First, law enforcement can be portrayed as predatory, a characterization that was significantly more likely to occur than any of the other por- trayals of law enforcement (w2 ¼ 0.309; df ¼ 4). Officers are said to stalk, chase, catch, and cage hip-hop artists. Second, law enforcement is portrayed as oppressive. Artists claim that law enforcement officers act to directly oppress them by taking advantage and preventing upward mobility. They also are portrayed as indirectly oppressing the artists by contributing to an already difficult and negative social envi- ronment. Third, hip-hop artists describe the police as an illegitimate arm of the 166 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ government by acting in a way that does not fulfill the maxim of ‘‘protect and serve.’’ In addition, while there were other types of portrayals within this sample, they were so few they could not reliably be condensed into thematic categories. The general char- acteristics of these portrayals, however, were negative or neutral (no indication was given in order to determine whether the artist favored or disdained the police in the particular lyric) and none were positive. A Hip-Hop’s Portrayal of Corrections Within the hip-hop lyrics, portrayals of corrections were the second most mentioned (n ¼ 47; 36.72%). Of the correctional portrayals, six subthemes emerged: interferes with social ties, conditions and effects, oppression, punishment as appropriate, non- descript negative, and passive and indirect references. In general, characterizations of the correctional system were negative with the exception of one category: punish- ment as appropriate. Interferes with social ties. The most prevalent portrayal of corrections presented in the sample focuses on corrections as an interferer of social ties (n ¼ 47; 53.41%). A chi- square test indicated corrections as an interferer of social ties was significantly more likely to be mentioned than the other correctional subcategories (w2 ¼ 6.149, df ¼ 6; p < .001). Here, hip-hop artists recognize the negative impact incarceration has on relationships within the community. The artists demonstrate that incarceration not only punishes the offender but also friends, family, and others who are socially con- nected to the offender/offenders. For example, Tupac (‘‘Better Dayz,’’ 2002) raps, ‘‘plus my P.O. [parole or probation officer] won’t let me hang with the brothers I grew up with.’’ Here, Tupac is describing how his probation officer, an agent of the correc- tional apparatus, prevents him from engaging with his friends. In this sense, the pun- ishment is not only about incarceration (the denial of liberty) but also about the separation from loved ones. As expressed by the hip-hop artists, it seems punishment is inflicted on the offender, their friends, and family. Conditions and effects. In addition to the severing of social ties, hip-hop artists also describe the conditions of incarceration and their effects (n ¼ 8; 9.09%; w2 ¼ 20.447; df ¼ 6; p > .05). Lyrics in this category compose 17% of all lyrical mentions of cor- rections. Within the lyrics, prison conditions are often described as brutal, inhumane, filthy, degrading, and cruel. For example, the Ying Yang Twins and Bun B (‘‘23 hour lockdown,’’ 2005), in their appeal to have their friend released from prison, describe prison conditions as ‘‘23 hour lockdown / where they treat you like a ho / slide you a plate up under the door / Nigga have to shit in the middle of the floor / prison ain’t a place that we need to go.’’ The effects of prison are described as dehumanizing, animalizing, and often as engendered negative emotions like anger, frustration, and despair. For example, the Ying Yang Twins and Bun B (‘‘23 Hour Lockdown,’’ 2005) describe these effects when they rap, ‘‘23 hours lockdown in a cell / can drive a nigga crazy as hell / looking Steinmetz and Henderson 167 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ at four walls / can do nothing at all/got you feeling like a dog in a cage / a monkey in a rage.’’ Here, the artists use similes comparing the status of ‘‘prisoner’’ analogous to that of an ‘‘animal.’’ The conditions are also said to drive a person toward anger and insanity. Oppression. Similar to the discussion of law enforcement, hip-hop artists recognize the correctional apparatus as a source of oppression (n ¼ 13; 14.77%; w2 ¼ 9.383; df ¼ 6; p > .05). A lyric was considered to pertain to oppression if it described corrections as (1) interfering with upward social mobility; (2) a place where resistors are held (or as a place to resist); (3) the final stop after being victimized by the criminal justice system; or (4) housing for those failed by the collapse of other social institutions (i.e., schools, etc.). The underlying theme that unifies this category is that prison acts to secure people or populations into their current social position and also contributes to the victimization of hip-hop artists by other branches of the criminal justice system. For example, Tupac describes politicians as responsible for mass incarceration: ‘‘I shed tattooed tears and couldn’t sleep good / for multiple years, witness peers catch gunshots / nobody cares, seen the politicians ban us / they’d rather see us locked in chains, please explain / why they can’t stand us, is there a way for me to change?’’ (‘‘Thugz Mansion,’’ 2002). Here, incarceration is said to be an instrument of political force against Tupac and the hip-hop genre of music. Punishment as appropriate. It is important to remember that, despite all of this resistance, the hip-hop community is not opposed to the idea of punishment (n ¼ 9; 10.23%; w2 ¼ 17.894; df ¼ 6; p > .05). These artists seem to support the idea that ‘‘people who harm others should be harmed in return’’ (Butler, 2009, p. 133). For example, Mystikal advocates for the punishment of the man who murdered his sister: ‘‘fuckin’ well right I got a grudge / on your Ma, and her lawyer, and the courts / and the jurors, and the judge / defenses, your immediate family members / I’m pissin on it and burning the district attorney / You stepped down on us / shipped that coward out his fuckin’ cell and let him skip town on us’’ (‘‘Murderer III,’’ 2000). Clearly, he supports the idea of punishment and retribution for the slayer of his sister through the means provided by the criminal justice system. Nondescript negative. Within this category are discussions of the correctional branch of the criminal justice system which do not adequately fit into the previous categories, but do provide a negative characterization (n ¼ 5; 5.68%; w2 ¼ 29.128; df ¼ 6; p > .05). These portrayals are difficult to characterize beyond the quality of ‘‘negative.’’ As such, they are labeled as nondescript negative. With 5 lyrics falling into this category, we find that these lyrics portray corrections as something to avoid, where ‘‘snitches’’ send people (perhaps reflecting more poorly on the supposed ‘‘snitch’’ than the corrections system itself), and as a general inconvenience. For example, Notorious B.I.G. raps, ‘‘If you don’t love yourself, I’ll make you see your own heart and we don’t like the narcs, stay away from the cell, hey, I’ma shoot it out if I’m facing the ail [jail]’’ (‘‘I’m With Whateva,’’ 2005). He indicates he does not want to go to jail 168 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ but does not provide any other descriptions or reasons why. As such, jail is described as negative but this portrayal is nondescript. Passive and indirect references. Like the passive and indirect references category in the law enforcement section, songs which do not fall logically into other categories and which are not numerous enough to justify their own categorization are found here (n ¼ 6; 6.82%; w2 ¼ 26.064; df ¼ 6; p > .05). Fourteen percent of the lyrical mentions of cor- rections were placed here. Eminem provides an example of a lyric that mentions cor- rections that does not fit into one of the main categories when, in the song ‘‘I’m Back’’ (2000) he raps, ‘‘Manson, you’re safe in that cell, be thankful it’s jail.’’ Here, jail is portrayed as a haven that deviates from most of the other lyrics concerning corrections. Providing support for Anderson’s (1990) ‘‘code of the street,’’ which argues convict or ex-convict status can be empowering in street culture, three lyrics claim having friends in prison actually acts as a positive status symbol. For example, Jada- kiss (Eve, ‘‘Thug in the Street,’’ 2001), while describing various aspects of his life associated with living in the ghetto, says ‘‘I got niggas in jail.’’ Within the context of the rest of the song, this is meant to bolster his ‘‘street’’ status. Also, here are lyrics that had fit into another category described previously, like oppression, but also pro- vided a reference to criminal justice that did not fit into any of the aforementioned sec- tions. For example, in Tupac’s ‘‘Mama’s Just a Little Girl’’ (2002), he raps, ‘‘only functions at the pen, cuz everybody’s in / paying back society, I’m guilty of a life of sin.’’ Here, he recognizes the appropriateness of punishment (‘‘I’m guilty of a life of sin’’) but also says something else about corrections by saying ‘‘everybody’s in.’’ While certainly we can infer what may have been meant, there is not enough detail to discern meaning which makes this lyric fall into the passive and indirect references category. Summary. Within this sample, there were primarily five categorizations which typified the manner in which corrections were portrayed by rap artists. First, cor- rections were described as breaking apart social ties to family and friends. Second, the conditions of incarceration were described by hip-hop artists along with the associated effects. Third, the correctional apparatus was portrayed as oppressive. Descriptions of prisons or jails as impeding upward mobility, political weapons, contributors to past criminal justice system victimization, and a holding facility for those failed by other social institutions composed this category. Fourth, hip-hop artists—while denouncing corrections in general—upheld the idea of punishment’s appropriateness. Finally, characterizations of the correctional system which were negative but did not provide any other details were described. In addition, while there were portrayals outside the scope of these aforementioned sections, they were not numerous enough to constitute their own category and were relegated to the passive and indirect reference section. Portrayal of Criminal and Civil Courts The court system personnel, primarily consisting of judges, prosecutors, defense attorneys, and the judiciary system, in general, is the least discussed branch of the Steinmetz and Henderson 169 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ criminal justice system by hip-hop artists (n ¼ 11; 8.59%). It is beyond the scope of the data to determine why this would be the case but, this lack of portrayal may be emblematical of the reality that this is the area of the system that has the least amount of direct contact with persons as they are processed through the criminal justice sys- tem. Contact with police officers would happen more frequently than encounters with lawyers and judges and more time would be spent in jail or prisons than within a court room, and thus the lyrics may represent the degree of familiarity. Whatever the reason, the low level of discussion about the court system limits our ability to conduct logical inferences. Despite this limitation, we can still gleam relevance from what is men- tioned about the judicial system by artists. One way hip-hop artists describe various components of the court system are as instruments of control. In a rather gendered example, Cam’Ron raps, ‘‘Niggas don’t listen to broads, they having you sitting in court / for kids that ain’t yours, come home with me’’ (‘‘Come Home With Me,’’ 2002). As demonstrated by Cam’Ron, hip-hop artists sometimes describe the court system as a tool used by women to control them. Women are portrayed as dependent on the resources of the man and, to extract these resources, the court system is used. While the court system is described as an instrument of control, hip-hop artists also describe how to resist this control through the use of defense attorneys. For example, Jay-Z recollects advice given to him, which involved keeping enough money to hire a lawyer if criminal activity should turn sour: ‘‘Old heads taught me, yung’un, walk softly / carry a big clip, that’ll get niggaz off me / keep coke in coffee, keep money smellin’ mothy / change is cool to cop but more important is lawyer fees’’ (‘‘Never Change,’’ 2001). In other words, to resist control imposed through the court system, one must fight it within the system itself through lawyers. Hip-hop artists recognize a problem with trying to legitimately engage the court system, however, even with defense attorneys. The court system is portrayed as falling short of its promise to fulfill justice. In a lyric used as an example previously but still providing a powerful display of hip-hop’s perceptions of the failures of the judicial pro- cess, Mystikal laments the court’s treatment of the man who killed his sister: ‘‘fuckin’ well right I got a grudge / on your Ma, and her lawyer, and the courts / and the jurors, and the judge / defenses, your immediate family members / I’m pissin on it and burning the district attorney / You stepped down on us / shipped that coward out his fuckin’ cell and let him skip town on us’’ (‘‘Murderer III,’’ 2000). Here, Mystikal is asserting the court system failed to provide justice for him and his family by letting the killer go. Summary. Hip-hop artists within this sample seldom discussed the court system. As such, prominent themes and categories did not emerge from the data. Regardless, there were three general ways the court system was described in the data. First, the court system was portrayed as an instrument of control. Second, hip-hop artists described the need to have a lawyer to avoid legal trouble. Finally, the court system was por- trayed as falling short of its promise to serve justice. It should also be noted that none of the hip-hop artists had anything supportive or positive to say about courts; the dis- cussion was pessimistic. 170 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Discussion: Unfairness and Powerlessness The extant literature on hip-hop and its relevancy to criminal justice and delinquency have focused primarily on its derogatory mentionings of women, police, and influence on deviant behavior (Armstrong, 2001; Conrad et al., 2009; Knobloch-Westerwick et al., 2008; Kubrin, 2005a, 2005b; Weitzer & Kubrin, 2009; Zhang et al., 2010). Given the intimate relationship between the hip-hop community and the American criminal justice reality, it is perplexing that to date no research has intentionally focused on the systematic examination of the criminal justice nature within discussions espoused in the music of hip-hop culture. Criminal justice’s oversight of this community is all the more troubling, considering the extant literature that focuses on measurements of pub- lic perceptions and their influence on human behavior. Given that hip-hop is an expression of the predominantly African American community, our research has been premised on the notion that African American’s have a unique world view as a result of their lived experiences (Feagin, 2010; Unnever & Gabbidon, 2011). Initially, we sought to examine the criminal justice mentionings within the lyrical content of hip-hop music and whether or not there was a greater likelihood of that mentioning categorization. After deciphering the criminal justice relevant mentioning, we exam- ined the extent of those criminal justice mentionings. In other words, what was the nature of the criminal justice lyrical content? The results from our findings are con- sistent with the existing literature which has noted that feelings of unfair treatment result from perceived procedural injustices and threaten the perceptions of legitimacy within the minority communities, the very components of which have served as the basis for procedural justice and legitimacy theory (Tyler, 2006; Tyler & Huo, 2002). Procedural justice and legitimacy theory, rooted in Weber’s (1968) study on power’s legitimacy and resurged by the works of Tyler (2006), hypothesizes that as authorities enact fair decisions, premised on facts, as opposed to conjecture, the citizenry will feel personally obligated to comply with the established rules and ultimately possess greater levels of trust. In other words, procedural justice and legitimacy theory notes that as perceptions of unfairness increase, so to do perceptions of injustice. Research has demonstrated perceptions of illegitimacy lead to a lack of willingness to work with the criminal justice system, noncompliance, an inability to maintain order, delinquency, and an overall inability of the system to control criminal activity. The idea of fairness (i.e., procedural justice) has been found to significantly influence the acceptance of decisions made by police (Tyler, 2006; Tyler & Huo, 2002), correctional officials (Henderson et al., 2010), and legal decisions (Tyler, 1984). Research has also demonstrated that procedural justice increases perceived legitimacy of authorities as well as impact behavioral outcomes of delinquency and order maintenance (Henderson et al., 2010; Sunshine & Tyler, 2003; Tyler, 2006; Tyler & Huo, 2002). After examining the hip-hop portrayals of criminal justice in this research, two overarching themes emerged. The first theme is unfairness. In examining the various themes from law enforcement (as predatory, as oppressors, and as illegitimate) and corrections (separates social ties, conditions and effects, oppressive, punishment as Steinmetz and Henderson 171 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ appropriate, and nondescript negative) in addition to the findings for the judicial branch of the criminal justice system, many of the discussions portray the operations and actions of the system as patently unfair, which has ramifications from a procedural justice perspective (Tyler, 2006). The Wu-Tang Clan (‘‘Let My Niggas Live,’’ 2000) provide an example that clearly demonstrates the intersection between police brutal- ity/lethal use of force and unfairness when they say, ‘‘I’m gon’ be shot by some pig [police officer] who’s gonna swear that it was a mistake / I accept that as part of my destiny!’’ Here, the artist is claiming to expect to die by a police officer shooting him and then lying about his intent. Consistent with research on public perceptions of the police, the before mentioned lyric echoes the notion of the unfairness of police actions, which may be detrimental to the legitimacy and acceptance of decisions made by law enforcement (Tyler, 2006; Tyler & Huo, 2002). Along with the descriptions of unfairness is also an obvious lack of respect for the criminal justice system within these lyrics primarily as result of being the victim of unjust treatment. Tupac (‘‘Crooked Nigga Too,’’ 2004) provides an example that representatively characterizes the relationship between perceptions of unfair treatment and respect for the police when he raps, ‘‘Yo, why I got beef with police? / Ain’t that a bitch that motherfuckers got a beef with me / They make it hard for me to sleep / I wake up at the slightest peep, and my sheets are three feet deep.’’ Police action perceived as hostile and unfair engenders an equally hostile and indignant response from Tupac, indicating a tremendous amount of disrespect for the police. The rela- tionship between perceptions of fairness and respect is consistent with research on procedural justice and legitimacy (Henderson et al., 2010; Sunshine & Tyler, 2003; Tyler, 1984, 2006; Tyler & Huo, 2002), which, as noted above, holds that as per- ceptions of unfairness increase (gained through direct or vicarious experience), so do perceptions of injustice. Research has demonstrated the subsequent increase in per- ceptions of injustice leads to an unwillingness to work with the criminal justice system, noncompliance, an inability to maintain order, delinquency, and an overall failure of the system to control criminal activity. The idea of fairness (i.e., procedural justice) has been found to significantly influence the acceptance of decisions made by police (Tyler, 2006; Tyler & Huo, 2002), correctional officials (Henderson et al., 2010), and legal decisions (Tyler, 1984). In addition, increased perceptions of fairness have also been shown to lead to an increase in the perceived legitimacy of authorities and the behavioral outcomes of delinquency and order maintenance (Henderson et al., 2010; Sunshine & Tyler, 2003; Tyler, 2006; Tyler & Huo, 2002). Within hip-hop, art- ists not only convey their own or others experiences but the art form also provides vicarious experiences of unfairness to others which, according to procedural justice and legitimacy theory, will likely decrease the hip-hop community’s perceived legiti- macy of the criminal justice system. While the literature on procedural justice and legitimacy primarily focuses on perceptions of fairness and injustice, the current study also revealed a second major theme within the sample of hip-hop lyrics which is separate but related to unfairness— powerlessness. Hip-hop artists often portray the criminal justice system as an institu- tion with an immense amount of power over their lives; an ever present reality which 172 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ they must continually struggle against. Research has found that perceptions of power- lessness are linked to urban disorder (Geis & Ross, 1998)—relevant because hip-hop has historically been fostered in an urban setting—and may be conducive to feelings of anger and distress (Thomas & González-Prendez, 2009). 5 As such, it would be logi- cal to postulate that perceptions of powerlessness and its associated negative effects can easily contribute to perceptions of unfairness and injustice. Jay-Z (‘‘Pray,’’ 2007) provides an example of perceived powerlessness and its implications for proce- dural justice when he raps, ‘‘The same BM [‘‘big mover’’—a drug dealer] is pulled over by the boys dressed blue / they had their guns drawn screaming, ‘just move or is there something else you suggest we can do?’ / He made his way to the trunk / opened it like, ‘huh?’ / A treasure chest was removed / cops said he’ll be back next month / what we call corrupt, he calls payin’ dues.’’ In this scenario, the officers steal from the drug dealer without fear of repercussions because they have the legal author- ity. In essence, the drug dealer was powerless to stop the corrupt activity of the police as they took advantage of him. The situation involves a power dynamic in which the dealer was unfairly taken advantage of but was unable to seek redress. Powerlessness is also demonstrated in other scenarios, such as when hip-hop artists describe resisting the criminal justice system or boast about overcoming it. On their face, these situations indicate a sort of empowerment for hip-hop artists. Acts of resis- tance and boasting represents struggles against power and may even demonstrate cracks in the veneer of authority. In describing these incidents, however, the artists are enga- ging in these acts of resistance or evasion in the face of the power wielded by the crim- inal justice system. In other words, there is still recognition the criminal justice system possesses a great amount of power to be overcome or opposed. For example, in his song ‘‘Lil’ Homies,’’ Tupac (2001) raps, ‘‘runnin’ from these punk police, cause lil’ niggaz run the streets (my fuckin’ lil’ homies).’’ Here, Tupac notes that these ‘‘lil’ homies’’ (delinquent hip-hop adolescents) evade the police and acquire some control of their immediate environment (they ‘‘run the streets’’). Despite this, the very act of running from the police indicates recognition of the power and authority wielded by law enforce- ment. Tupac also describes the police as ‘‘punk,’’ which indicates a disdain, a possible by-product of the anger, frustration, and indignation developed from perceptions of powerlessness (Thomas & González-Prendez, 2009) and unfairness (Tyler, 2006). Hip-hop, as a culture and a form of music, is vehemently intertwined with the minority communities who most frequently encounter the criminal justice system (Rocque, 2011). Within our sample, we found that hip-hop artists often describe the criminal justice system as an institution of unfairness and a powerful antagonistic force in their lives. Under procedural justice and legitimacy theory, hip-hop can be construed as a vicarious experience of injustice for the entire hip-hop community. In addition, hip-hop music, as an indirect experience, may build upon community member’s previous direct or indirect experiences with criminal justice. As such, hip-hop may also affect the perceptions of legitimacy for the entire hip-hop commu- nity. Similar to John Locke’s notion that legitimacy is contingent upon the ‘‘consent of the governed’’ (Ashcraft, 1991), if criminal justice policy makers seek to overcome the loss of legitimacy among the hip-hop community, two areas need to be addressed: Steinmetz and Henderson 173 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ (1) implementation of criminal justice duties—within every branch—need to be evaluated for procedural justice and (2) avenues of redress need to be opened up for those who believe that have been unjustly treated by the criminal justice system. If the imple- mentation of criminal justice is made more perceptibly fair with opportunities for resolu- tion, then members of the hip-hop community may confer more legitimacy onto the criminal justice system (Tyler, 2006; Tyler & Huo, 2002). According to procedural jus- tice and legitimacy theory, legitimacy is a theory of social control and has serious criminal justice policy implications. Limitations and Directions for Future Research Despite the advances of this research, there are a number of limitations that must be recognized. First, this sample was drawn from top-selling, mainstream hip-hop albums and this is a common limitation among hip-hop studies. It is unknown whether nonmainstream albums have increased freedoms to engage in more intense or different expressions of the criminal justice system, which may not be contained in hip-hop that climbs to the top of the sales charts. As such, future research should include songs from nonplatinum-selling, underground, or local rap artists. Second, the current study is limited in its sample size (n ¼ 200). More rich and detailed results may have emerged from a larger sample. Con- sidering the inductive and grounded approach of this study, however, the sample size is adequate. Inductive studies are often more labor intensive than many quantitative studies and, as such, concessions must be made to allow the research to be manageable. Despite the given justification, future research could benefit from a larger sample size. Sizable samples allow for themes to be more easily extracted and also provide more support for those themes. For example, the inability to reliably extract themes within hip-hop por- trayals of the court system may have been resolved by drawing a larger sample that may have included more references to the legal system. Third, while our content analysis did provide support for procedural justice and legitimacy theory, future research would benefit from examining other sources of data, such as surveys/interviews of hip-hop listeners and artists to provide a more robust examination of hip-hop perceptions and their relationship to legitimacy. Despite the aforementioned limitations, this study explores a previously unexamined area of research and expands on the narrow scope of hip-hop music relative to the components of the criminal justice system. Academic inquiry from criminal justice and criminology have done a disservice to itself by dismally focusing on hip-hop, and when so, conducting examinations primarily focused on the misogynistic or violent lyrical content and the music’s impact on delinquency resulting from problematic methodological inquiries. The current study serves as an exploratory investigation into the insights of hip-hop artists toward the criminal justice sys- tem. The hip-hop community is disproportionately affected by the operations of the crim- inal justice system—a reality expressed within their music. As academics, to miss what they have to tell us is to ignore the perceptions of a population that has experienced the (rather dire) consequences of our criminal justice system, inherently violating the theory of consent. 174 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Acknowledgments The authors would like to thank the reviewers for their invaluable and insightful comments and cri- tiques. In addition, the authors would also like to thank the Graduate Standards and Admissions Committee of the College of Criminal Justice as well as the Graduate Office at Sam Houston State University for the summer fellowship which provided the opportunity to conduct the research pre- sented in this manuscript. Declaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author(s) received no financial support for the research, authorship, and/or publication of this article. Notes 1. For the sake of simplicity, the terms ‘‘hip-hop’’ and ‘‘rap’’ are used interchangeably. The authors, however, recognize hip-hop as a term that refers to a specific urban-based subcul- ture, while rap music is recognized as the subculture’s emergent music form. 2. There are many problems that confront the random-platinum method of sampling which should be noted. First, there is no guarantee that platinum-selling songs are the most influential or respected songs in the hip-hop community. Second, it serves as only a crude proxy to listenership. Considering the many ways music can be consumed—legal or otherwise—album sales can only capture one narrow sliver of potential listenership for a song. Third, this method does not pick up influential underground or nonmainstream artists. In short, this method only guarantees that we are selecting songs that have been heavily purchased. That said, this method has become standard in hip-hop studies because of the difficulty inherent in systematically and randomly sampling any other way. In other words, we are confronted with the challenge of theoretical objectivity mired by the subjective reality of research. 3. The data for this study was analyzed and coded by the first author. The practice of using one coder to analyze lyrics has been engaged in by other hip-hop scholars (Armstrong, 2001; Kubrin, 2005a; Kubrin, 2005b). In addition, intercoder reliability—ensuring coding by more than one coder is both consistent and reliable—was neither a concern nor an issue because only one coder was used. As such, there was no other coder to be inconsistent with. 4. The definition of fairness/unfairness used within this study is based on the procedural jus- tice literature (i.e., Tyler, 2006; Tyler & Huo, 2002) and scholarship which applies com- ponents of procedural justice to the execution of criminal justice on minority communities (i.e., Unnever & Gabbidon, 2011; Rocque, 2011). 5. The study by Thomas and González-Prendez (2009) focused on a sample of African Amer- ican women. There is, however, little reason to believe that feelings of powerlessness would not engender similar emotions like anger and distress in males, of which hip-hop is dominated. Steinmetz and Henderson 175 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ References Agozino, B. (2000). Theorizing otherness, the war on drugs and incarceration. Theoretical Crim- inology, 4, 359–376. Alridge, D. P. (2005). From civil rights to hip-hop: Toward a nexus of ideas. The Journal of African American History, 90, 226–252. Anderson, E. (1990). Streetwise: Race, class, and change in an urban community. Chicago, IL: University of Chicago Press. Armstrong, E. G. (2001). Gangsta misogyny: A content analysis of the portrayals of violence against women in rap music, 1987-1993. Journal of Criminal Justice and Popular Culture, 8, 96–126. Ashcraft, R. (1991). John Locke: Critical assessments. London, England: Routledge. Bogt, T. F. M., Engels, R. C. M. E., Bogers, S., & Kloosterman, M. (2010). ‘‘Shake it baby, shake it’’: Media preferences, sexual attitudes and gender stereotypes among adolescents. Sex Roles, 63, 844–859. Bureau of Justice Statistics. (2010, December). Bulletin: Correctional populations in the United States, 2009 (NCJ 231681). Washington, DC: L. E. Glaze. Butler, P. (2004). Much respect: Toward a hip-hop theory of punishment. Stanford Law Review, 56, 983–1016. Butler, P. (2009). Let’s get free: A hip-hop theory of justice. New York, NY: The New Press. Cam’Ron. (2002). Come home with me. On Come home with me [CD]. USA: Sony Records/Epic Records. Charmaz, K. (2006). Constructing grounded theory: A practical guide through qualitative analysis. Thousand Oaks, CA: Sage Publications, Inc. Cheney, C. (2005). In search of the ‘‘revolutionary generation’’: (En)gendering the golden age of rap nationalism. The Journal of African American History, 90, 278–298. Conrad, K., Dixon, T., & Zhang, Y. (2009). Controversial rap themes, gender portrayals and skin tone distortion: A content analysis of rap music videos. Journal of Broad- casting & Electronic Media, 51, 134–156. Dennis, A. (2007). Poetic (in)justice. Columbia Journal of Law & the Arts, 31, 1–41. Dyson, M. E. (2007). Know what I mean? Reflections on hip hop. New York, NY: Basic Civitas Books. Feagin, J. R. (2010). Racist America: Roots, current realities, and future reparation. New York, NY: Routledge. Gabbidon, S., Higgins, G., & Potter, H. (2011). Race, gender, and the perception of recently experiencing unfair treatment by the police: Exploratory results from an all- black sample. Criminal Justice Review, 36, 5–21. Gates, D. (1990, March 19). Decoding rap music. Newsweek, 115, 60–63. Retrieved May 31, 2011 from Academic Search Complete. Geis, K. J., & Ross, C. E. (1998). A new look at urban alienation: The effect of neigh- borhood disorder on perceived powerlessness. Social Psychology Quarterly, 61, 232–246. Gilroy, P. (1993). The Black Atlantic: Modernity and double-consciousness. Cambridge, UK: Harvard University Press. 176 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Hamm, M. S., & Ferrell, J. (1998). Rap, cops, and crime: Clarifying the ‘‘cop killer’’ controversy. Reprinted In R. C. Monk (Ed.), Taking sides: Clashing views on controversial issues in crime and criminology (pp. 23–28). Guilford, CT: Dushkin/McGraw-Hill. Henderson, H., Wells, W., Maguire, E. R., & Gray, J. (2010). Evaluating the measurement properties of procedural justice in a correctional setting. Criminal Justice and Behavior, 37, 384–399. Jay-Z. (2001). Never change. On Blueprint [CD]. USA: Roc-a-Fella Records. Jay-Z. (2003). December 4th. On Black album [CD]. USA: Roc-a-Fella Records. Jay-Z. (2006). Do U Wanna Ride (feat. John Legend). On Kingdom come [CD]. USA: Rock-a-Fella Records, Def Jam Recordings. Jay-Z. (2007). Pray. On American gangster [CD]. USA: Rock-a-Fella Records. Johnson, J. D., Adams, M. S., Ashburn, L., & Reed, W. (1995). Differential gender effects of exposure to rap music on African American adolescents’ acceptance of teen dating violence. Sex Roles, 33, 597–605. Johnson, J. D., Jackson, L. A., & Gatto, L. (1995). Violent attitudes and deferred academic aspirations: Deleterious effects of exposure to rap music. Basic and Applied Social Psychol- ogy, 16, 27–41. Knobloch-Westerwick, S., Musto, P., & Shaw, K. (2008). Rebellion in the top music charts: Defiant messages in rap/hip-hop and rock music 1993 and 2003. Journal of Media Psychol- ogy, 20, 15–23. Kubrin, C. E. (2005a). Gangstas, thugs, and hustlas: Identity and the code of the street in rap music. Social Problems, 52, 360–378. Kubrin, C. E. (2005b). ‘‘I see death around the corner’’: Nihilism in rap music. Sociological Perspectives, 48, 433–459. Mahiri, J., & Connor, E. (2003). Black youth violence has a bad rap. Journal of Social Issues, 59, 121–140. Marikar, S. (2011, May 11). Common’s White House visit slammed by critics. ABCNews. Retrieved September 12, 2011 from http://abcnews.go.com/Entertainment/rapper-com- mons-white-house-visit-called-controversial-critics/story?id¼13572464 Martinez, T. A. (1997). Popular culture as oppositional culture: Rap as resistance. Sociological Perspectives, 40, 265–286. Miranda, D., & Claes, M. (2004). Rap music genres and deviant behaviors in French-Canadian adolescents. Journal of Youth and Adolescence, 33, 113–122. Mystikal. (2000). Murderer III. On Let’s get ready [CD]. USA: Jive Records. Nisker, J. (2007). ‘‘Only god can judge me’’: Tupac Shakur, the legal system, and lyrical sub- version. The Journal of Criminal Justice and Popular Culture, 14, 176–196. Quinn, M. (1996). ‘‘Never shoulda been let out the penitentiary’’: Gangsta rap and the struggle over racial identity. Cultural Critique, 34, 65–89. Rocque, M. (2011). Racial disparities in the criminal justice system and perceptions of legiti- macy: A theoretical linkage. Race and Justice, 1, 292–315. Rose, T. (1994). Black noise: Rap music and Black culture in contemporary America. Middle- town, CT: Wesleyan University Press. Shakur, T. (2002). Better dayz. On Better dayz [CD]. USA: Interscope Records. Shakur, T. (2002). Thugz mansion. On Better dayz [CD]. USA: Interscope Records. Steinmetz and Henderson 177 at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ Shakur, T. (2004). Crooked Nigga too. On Loyal to the game [CD]. USA: Amaru Records/Inter- scope Records. Smith, A. (2011). Why Americans use social media: Social networking sites are appealing as a way to maintain contact with close ties and reconnect with old friends. Washington, DC: Pew Research Center. Retrieved February 21, 2012 from http://pewinternet.org/*/ media//Files/Reports/2011/Why%20Americans%20Use%20Social%20Media.pdf Snoop Dogg. (2000). Set it off. On The last meal [CD]. USA: No Limit Records/Priority Records/EMI Records. Sunshine, J., & Tyler, T. R. (2003). The role of procedural justice and legitimacy in shaping public support for policing. Law and Society Review, 37, 513–548. Thomas, S. A., & González-Prendez, A. A. (2009). Powerlessness, anger, and stress in African American women: Implications for physical and emotional health. Health Care for Women International, 30, 93–113. Tonry, M. (2011). Punishing race: A continuing American dilemma. New York, NY: Oxford University Press. Tyler, T. R. (1984). The role of perceived injustice in defendants’ evaluations of their court- room experience. Law and Society Review, 18, 51–74. Tyler, T. R. (2004). Enhancing police legitimacy. The Annals of the American Academy of Political and Social Science, 593, 84–99. Tyler, T. R. (2006). Why people obey the law. Princeton, NJ: Princeton University Press. Tyler, T. R., & Huo, Y. J. (2002). Trust in the law: Encouraging public cooperation with the police and courts. New York, NY: Russell Sage Foundation. Unnever, J. D., & Gabbidon, S. L. (2011). A theory of African American offending. New York, NY: Routledge. Weber, M. (1968). Economy and society. G. Roth & C. Wittich (Eds.). Berkeley: University of California Press. Weitzer, R., & Kubrin, C. E. (2009). Misogyny in rap music: A content analysis of prevalence and meanings. Men and Masculinities, 12, 3–29. Wyclef, J. (2000). Thug angels. On The ecleftic: 2 sides II a book [CD]. USA: Sony Records. Ying-Yang Twins. (2005). 23 hr. lock down. On U.S.A.: United States of Atlanta [CD]. USA: Tvt Records. Zhang, Y., Dixon, T. L., & Conrad, K. (2010). Female body image as a function of themes in rap music videos: A content analysis. Sex Roles, 62, 787–797. Bios Kevin F. Steinmetz is a doctoral student at the College of Criminal Justice at Sam Houston State University. Howard Henderson is an assistant professor within the College of Criminal Justice at Sam Houston State University. 178 Race and Justice 2(3) at SAM HOUSTON STATE UNIV LIBRAR on September 26, 2014raj.sagepub.comDownloaded from http://raj.sagepub.com/ From the SelectedWorks of Howard M Henderson 2012 Hip-Hop and Procedural Justice: Hip-Hop Artists' Perceptions of Criminal Justice RAJ443969 155..178 
work_ozaskslvsbcpdj3qnsnfvdaaya	----	Islamic Social Justice, Iranian Style 60 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 © 2007, The Author Journal Compilation © 2007, Middle East Policy Council ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE Jahangir Amuzegar Dr. Amuzegar was finance minister and economic ambassador in Iran’s pre-1979 government. The ideal of social justice was aprime goal of Iran’s 1979 revolu-tion. The monarchy was merci-lessly chastised by Ayatollah Ruhollah Khomeini for having neglected the plight of the poor and the disenfran- chised, the mostazafan. A new constitution adopted under his supervision after the revolution is replete with references to justice and equity as two of the main Quranic principles of governance. Eradica- tion of poverty and deprivation thus be- came one of the Islamic Republic’s princi- pal duties and its leaders’ principal aims. And the dominance of public sector over the national economy, specified in the constitution, was expected to guarantee the achievement of that objective. The fact that, after nearly three decades of “Islamic” rule, millions of Iranians are still living below the poverty line and the gap between rich and poor has actually widened is not surprising, in view of gross economic mismanagement. The real surprise lies in the recent ideological turnaround by the regime and the candid rejection of the state as an anti-poverty agent. This review intends to (a) discuss the Islamic Republic’s several privatization programs in the last 18 years to reduce state economic dominance and the way in which the 1979 Constitution has been amended to reach that goal; (b) President Ahmadinejad’s cherished scheme to distribute a portion of public assets among the poor as “justice shares” (saham-e edalat); and (c) appraise the new mea- sures’ prospects for achieving the goal of social justice. THE ECONOMY’S NEW CORNERSTONES To Ayatollah Khomeini, the ascetic spiritual founder of the Islamic Republic, economics was a dismal and distasteful subject. He is frequently quoted as having referred to economics in highly derogatory terms. In the preamble of the 1979 Constitution, adopted under the ayatollah’s direction, economics is described as a means and not an end. The economy’s main task is defined as the satisfaction of man’s basic “material needs” in the course of his “journey toward God.” This unique and somewhat bizarre concept (which was hardly understood and seldom practiced by the majority who voted for the Basic Law) was presented as a distinct feature of Islamic government “in contrast” to non- Islamic economic systems, in which the goal is “the concentration and accumulation of wealth.”1 Taking his cue from the 61 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE founding father, current Supreme Leader Seyyed Ali Khamenei, for the first 15 years into the revolution, also praised “spiritual virtues” (taqva) as life’s main goals and asked the faithful to shun material posses- sions (zakharef). On other occasions, he openly cursed “those who made Iran dependent on oil” and wished the country could afford to shut down all its oil wells.2 The body of the Basic Law that was drafted by the first Assembly of Experts functioning as a constitutional convention, however, makes no further reference to this puritanical Islamic concept and, in fact, requires the government to provide for the people’s basic needs in the fullest possible manner from cradle to grave. The assem- bly, composed of delegates from various ideologically diverse factions that had joined Khomeini’s “rainbow coalition” against the monarchy, initially had a hard time agreeing on an “Islamic” economic regime. In the final give-and-take among the factions, the Tudeh (communist) and other leftist members of the assembly were given the task of drafting the economic segment of the document as long as Khomeini diehards were equally allowed to provide the political segment. In the ultimate compromise that was finally reached, the “Islamic Marxists” accepted the principle of the velayet-e faqih (rule by an Islamic jurist) as the new regime’s political foundation in exchange for insert- ing their own favored economic version. The new constitution’s Chapter IV on the economy (Articles 43 to 55) thus became a communist-style economic manifesto in which the “commanding heights” of the economy were to be in the government’s hands. The rest was to be divided between the “cooperative” and the “private” sector with the priority belonging to the former. Thus, ironically, an essential segment of an “Islamic” constitution that was supposed to help people “move towards God” was drafted by a cabal of godless ideologues who subscribed to a totally different agenda. According to Article 44, the public sector includes “all large-scale and key industries; foreign trade; major mineral resources; banking, insurance; energy; dams and larger-scale irrigation networks; radio and television; post, telegraph and telephone; aviation; shipping; roads, railroads and the like.” To placate other Islamic clerics in the assembly who defended Islam’s respect for private property, Article 44 also adds: “Public ownership described in this article is sanctioned as long as it does not work against the interests of society.” By virtue of this provision, hundreds of prosperous and well-managed private enterprises in industry, agriculture and trade that had already been confiscated by the revolutionary government and national- ized without due compensation became the legal wards of the state. They were placed at the disposal of several bonyads (chari- table foundations) and two government agencies: the National Iranian Industries Organization and the Industrial Develop- ment and Renovation Organization. Fol- lowing the beginning of war with Iraq in 1980, the scope of government operations and involvement quickly expanded. As a result, by the end of the war in 1988, state enterprises and bonyads became the dominant players in the economy. Large- scale economic activities in the energy, industry and other strategic sectors re- mained in state hands. The private sector was limited to small-scale agriculture, domestic trade and services, and minor mining and manufacturing. 62 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 Meanwhile, dire wartime economic conditions were further aggravated by the misguided policies of Mir Hossein Mussavi, a leftist prime minister, and carried out by a Soviet-type bureaucracy run largely by dogmatic, incompetent or corrupt manag- ers. Bent on financing the ruinous war with meager domestic resources, the Mussavi administration played havoc with the economy. Inflation was artificially kept low through strict rationing, comprehensive wage and price controls and massive subsidies. The exchange rate between the Iranian rial and the U.S. dollar was allowed to become increasingly overvalued by means of strict annual foreign-currency appropriations, exchange rationing and a multiple-exchange-rates regime. The result was a steady decline in gross national product and growing overall poverty. Accord- ing to the Central Bank’s latest revised calculation, Iran’s national income by the end of the war in 1988 fell to 64 percent of its 1978 level in real terms. And, due to the government’s disastrous pro-natal policy, designed to produce more soldiers for Islam, per capita income plummeted to 37 percent of its pre-revolution high. Growing cost/price distortions, accompanied by an increasingly over-valued rial, produced shortages of basic goods and services, widespread public dissatisfaction and a near revolt by consum- ers. The result was the election of a new centrist and pro-business government under President Ali Akbar Hashemi Rafsanjani that promised to make up for wartime hardships by reversing course. INITIAL ATTEMPTS AT PRIVATIZATION The early effort toward reducing state economic dominance was made in the context of the first Five-Year Economic Development Plan (1989-94) under Rafsanjani’s so-called “structural adjust- ment” (taadeel) program.3 The declared goals, under the banner of privatization (khosousi sazi), were (a) to cut back the number of state-owned enterprises (SOEs) that had mushroomed since the 1979 revolution to over a thousand; (b) to get the government out of its “non-essential” functions; and (c) to increase total national- factor productivity. An enabling decree by the Council of Ministers in spring 1991 ordered the privatization of public enter- prises through three methods: the Tehran Stock Exchange, open auctions and negotiations with potential buyers. The first period of privatization, 1990- 94, was carried out by virtue of the First Development Plan’s authorization, albeit in an unplanned, haphazard and chaotic manner, with total sales of public assets worth 1.7 trillion rials. The procedure that was followed in the first 20 months, however, had to be stopped in the winter of 1992 due to widespread reports of flagrant corruption, cronyism and no-bid sales of moneymaking enterprises to selected groups at below-market prices. A new ministerial decree with added safeguards against abuses proved to be equally flawed. The Majlis in mid-summer 1994 put a temporary end to all privatization efforts until previous infractions were rectified. The second phase, 1995-97, was carried out under the Second Plan’s mandate according to a special Majlis law limiting the transfer of public assets — totaling 1.8 trillion rials — only to workers and war veterans on specially favored terms. In the third period, 1998-99, some 3.1 trillion rials changed hands under annual budget laws as well as the Second Plan’s statutory authorization. 63 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE As total sales figures annually fell considerably below budgeted sums in the first ten years of privatization, and the whole program failed to achieve the objectives of downsizing the bureaucracy, the Third Plan (2000-05) devoted a special section to the process. Accordingly, three new organs — the Privatization Organization of Iran (POI), the High Council on Shares Distribution and a series of Conglomerates called “mother” corporations — were established. The POI was given the exclusive mandate to dispose of enterprises belonging to all government ministries and agencies. The High Council, composed of cabinet ministers, was to decide which industries or enterprises were to be privatized. Conglomerates or holding companies were to take over individual enterprises in a specific field and put them together in a basket destined for privatization. The fourth period, 2000-05, thus followed the Third Plan’s authorization and managed total sales of 2.9 trillion rials in the first two years, following a tighter and more focused pro- gram. Reliable data regarding total privatized assets during the 1990-2006 period are not available. As in most official statistics in the Islamic Republic, published figures are replete with contradictions, ambiguities and misinformation. A report based on the POI data and covering the first 12-year period of operation values total privatized assets at 10.1 trillion rials (about $1.6 billion).4 Accord- ing to another report, by the Majlis’ Research Center for the 16-year period, the POI has transferred total shares worth 23 trillion rials (about $2.4 billion).5 The head of the Privatization Organization, and the minister of economy and finance both put the total at $3 billion.6 President Ahmadinejad has on different occasions talked about $3.2 billion7 and $3.5 billion.8 The percentage of total privatized assets as a portion of the total government holdings is hard to assess. Data regarding the number of enterprises belonging to the government and other public and semi- public organizations, their balance sheets and net worth are scarce, unreliable or unavailable. By one official’s estimate, the number of public corporations and their second-third-fourth-and fifth-generation subsidiaries has reached 2,500.9 A govern- ment report to the Majlis in early 2003 showed the total capital of the 460 largest entities, one-fourth of which were listed as money losing, to be $62.5 billion.10 Another report by the National Accounting Organi- zation refers to 1,038 entities with total assets of about $92 billion and liabilities of $55 billion.11 A knowledgeable Majlis deputy values all SOEs at $150 billion.12 Regardless of the exact worth of privatized assets and the total worth of government holdings, however, the maxi- mum transferred shares has been a minute portion of total public wealth. Two other related factors must also be kept in mind in assessing the magnitude of privatization. First, some major buyers of “privatized” shares were financial subsidiaries of state banks, state insurance companies, and other semi-public enterprises that were not part of the private sector. A major portion of total “privatized” assets also consisted of transfers to the Social Security Fund and the Government Employees’ Pension Fund as part of the treasury’s past-due contribu- tions; they were not truly “private sector” participants. Second, and more startling, is the fact that during the privatization exercise the government, instead of shrinking as mandated by law, had actually become ever bigger. According to a high government official, while a maximum of 64 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 $3 billion of SOE shares were reportedly transferred during 1990-2006, state banks and other SOEs had an annual return on their capital of about $12 billion, of which 45 percent, or about $5 billion, was left at their disposal for reinvestment. By this calculation, the public sector grew by nearly $5 billion each year13 through these reinvestments alone. Altogether during the period, an estimated $132 billion in totally new public investments — or 40 times total privatized assets — were made in the oil, gas, petrochemical, steel, aluminum, copper and other ongoing or new public projects.14 PRIVATIZATION’S EARLY SETBACKS A number of factors are frequently cited for the slow pace and insignificant scale of privatization. Some of these factors were similar to the experiences of other countries; others are more country specific. In general, privatization in any state-dominated economy is an issue with a diffuse, unorganized and silent constitu- ency, i.e., consumers who may eventually enjoy better products at lower prices. These beneficiaries, however, while in the numerical majority, are normally outflanked by a minority of vested interests that will go to any lengths to preserve its preroga- tives in public ownership. For example, government agencies in charge of state enterprises resist privatization because they lose part of their political power by giving up their economic clout. Politically ap- pointed boards of public corporations, along with incompetent or corrupt managers and tenured employees who might lose their jobs and perks are other privatization opponents. Privileged suppliers and customers of public enterprises who would be deprived of their usual sweetheart deals would similarly engage in a tooth-and-nail fight to keep those businesses in public hands. In the case of the Islamic Republic, several other factors acted as additional handicaps. First, there was an absence of national consensus about the very benefits of privatization. There were lingering suspicions, if not actual hostility, among the left-leaning bureaucrats held over from the Mussavi government toward capital, capitalists, private investments and the profit motive. Privatization also faced a skeptical public that saw the process as a squandering of national wealth and an enrichment of government cronies.15 Second, since each state enterprise often embodied the economic power of a political or clerical faction in the country, a source of employment and income to faction supporters, and a vehicle for transferring rent to its satellite private businesses, there was a great deal of reluctance by manag- ers, who feared losing these prerogatives. Third, there was a lack of enthusiasm on the part of potential investors because enterprises that were destined for privatization were not, as a rule, highly profitable. They had two to three times as many workers as normally needed; they were operating mostly under old technolo- gies; they were in some cases heavily in debt to state banks; and many owed unpaid taxes.16 Fourth, even a few profitable entities offered for sale had annual returns of between 10 and 15 percent at best. High as these rates may seem in a global context, they were actually rather meager in a country with an average annual inflation rate of the same magnitude.17 Furthermore, the 10-15 percent taxable rates of return did not compete favorably with the 17 percent riskless and tax free annual “profit” (interest) 65 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE rates paid on government “participation papers” (bonds), or higher long-term deposit rates in state banks — not to speak of the 30-45 percent returns in the “informal” economy of the bazaar. Fifth, extensive deficiencies in the operation of the Tehran Stock Exchange, where privatized shares were to be traded (including the absence of market-makers and lack of both liquidity and transparency) played against their attraction. Sixth, with the country’s formal capital market nearly monopolized by inefficient and struggling state banks and insurance compa- nies, the public’s access to funds for financ- ing purchases of privatized shares was highly limited. Seventh, there was strong opposition by the politically active labor lobby. Although Western-type labor unions do not exist in Iran, an Islamic House of Labor, with a Majlis deputy as its secretary general, is there to champion the cause of workers. The House of Labor has opposed privatization from its early inception, calling it an exercise in dismissing workers, downsizing the labor force, lowering wages and creating more poverty. It has further argued that privatization in a majority of developing countries has caused nothing but chaos, ruin and the shredding of the social fabric.18 Eighth, there were significant ambiguities in the Third Plan law regarding priorities in the sale of public enterprises (e.g., banks vs. industrial units). Ninth, Iran’s small and orphaned private sector had neither the technical nor managerial capabilities for absorbing the bulk of privatized businesses. Finally, but by no means least significant, the pervasive and exclusive definition of the “public sector” in Article 44 of the Constitu- tion kept many risk-averse private investors from purchasing shares of key industries that were still clearly categorized as belonging to the state. TRANSITION TO A MARKET ECONOMY The Islamic Republic’s experience with privatization under the first two economic development plans, 1990-2000, was, as already discussed, by no means a success. The budgeted revenues from sales of SOEs perennially fell short of targets, in some years by as much as 65 percent.19 With no proper safeguard in a number of well-publicized cases, the new owners decided to shut down the plant, fire workers, sell the company’s most valuable asset — the land — to private builders, and liquidate the enterprise.20 Due to pressure from the dismissed workers, the govern- ment was forced to take back privatized firms in a few cases.21 As early as the middle of the Second Plan, it was thus becoming increasingly clear that the costs of keeping the over- staffed, mismanaged and money-losing state enterprises on life support through budget subsidies could neither be justified nor continued for long. A detectable national consensus seemed to indicate that the constitutional language and implications of Chapter IV, and specifically Article 44, was the main stumbling block to wholesale privatization. Amending the Constitution, however, was neither easy nor politically prudent. The procedures for amendment were time-consuming and highly compli- cated. But, more significant, any attempt at amending Chapter IV could have opened a Pandora’s box. There were no guarantees that other parts of the Constitu- tion, particularly the crucial principle of velayat-e-faqih, would not be raised for “discussion.” Two convenient escape routes thus suggested themselves: simply ignoring the mandate of Article 44 and proceeding with 66 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 the transfer of public-sector assets, or searching for an enabling “interpretation.” Unthinkable as the violation option might appear in a Western legal context, the decision was not precedent setting in the Islamic Republic. In previous years, various administrations had routinely sidestepped, bypassed, ignored or even boldly violated various principles of the country’s 1979 Constitution and its 1989 amendment. Constitutional guarantees had frequently been ignored by over- zealous security agents, corrupt prosecutors or politicized judges. Glaring violations occurred in many areas: the rights of ethnic and reli- gious minorities (Articles 12 and 19); the sanctity of one’s life, home and property (Article 22); freedom of thought and expression (Article 23); an uncensored press (Article 24); political-party formation and activities (Article 26); peaceful demon- strations (Article 27); habeas corpus rights (Article 32); the prohibition against torture and forced testimony (Article 38); Majlis oversight authority in all national affairs (Article 76); the immunity of Majlis depu- ties in the discharge of their duties (Article 86); and jury trials for political and press offenses (Article 168). In foreign affairs, Article 11, calling for unity and solidarity with the Muslim world, and Article 152, regarding non-alignment with any superior power and defending the rights of Muslims everywhere under the slogan of “neither East nor West,” had also been virtually ignored and forgotten. Close and extensive political and economic ties with Russia and China, both major powers mistreating their Muslim citizens, had dominated the Islamic Republic’s foreign policy. A watchdog commission set up during the Khatami administration to record and report consti- tutional infringe- ments by govern- ment employees and agencies was later terminated when its workload became unbear- able. Yet, in no case up to 1992, had any of the original man- dates regarding the structure and direction of the economy and the Islamic Republic’s basic economic ideology been formally countermanded. Furthermore, the option of ignoring the Constitution could not be easily extended to Article 44 without palpable costs. Other provisions of the Constitution had been disregarded only at the (unquantifiable) expense of the regime’s legal and political “reputation.” Ignoring Article 44 would have affected the pocketbook, driving away both domes- tic and foreign investors. A plausible alternative thus favored the “interpretation” route. Interpreting the Constitution, however, was the prerogative and responsibility of the Guardians Council (Article 98). But this organ could neither An avowedly austere cleric who had persistently enjoined the devout from seeking worldly goods seems to have lately changed his mind and gone on record stating that “the accumulation of national wealth and the establishment of social justice” are indeed “the two main pillars of Islamic economics.” 67 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE be expected to come up with a favorable verdict, nor was it technically equipped to offer detailed operational provisions. As in other difficult cases, the Expediency Council, as the final arbiter of all legislation in Iran, came to the rescue. Invoking its duty under Article 110 of the Constitution — “advising the Supreme Leader in the establishment of the regime’s principal national policies” — the Council began a long and arduous process of finding a solution. And, after five years, in late 1997, it reached a consensus that the ambiguities embodied in Article 44 were indeed partly responsible for the slow progress of privatization. Citing the last sentence of the article, it concluded that continued exten- sive public ownership during peacetime was indeed against the national interest and, therefore, should be relaxed. In March 1998, the supreme leader agreed with the Council’s findings and ordered it to proceed with necessary clarifications. Protracted studies and deliberations within the Council and further instructions from the supreme leader took another six years. The final document was resubmitted to him in late 2004 in five parts.22 Four parts of the new “Guidelines” were approved immediately and ordered implemented in May 2005; the more crucial one, dealing with Article 44, was finalized in July 2006,23 authorizing a major divestiture by the state of some of its major possessions. Parts A and C of the Guidelines set up the essential course for government actions. Part A deals with basic policies aimed at expanding the role of the non- public sectors (private and cooperative) and preventing further expansion of the bureaucracy. First, it essentially puts an end to government monopoly in the com- manding heights of the economy. It gives the green light, with clearly defined excep- tions, for the private and cooperative sectors to invest, own and manage most areas and activities already in the domain of Article 44: basic industries and mining, foreign trade, banking, insurance, electric- power generation, dams and irrigation, post and telecommunications, railways, airlines, shipping, and downstream oil and gas. Of equal significance, it also enjoins the govern- ment from entering into any new economic activities outside the parameters of the existing Article 44.24 Furthermore, it calls on the government to transfer to the non-public sector any involvement in the domain outside Article 44 by 20 percent a year. In the so- called “liberated” areas, the non-public sector can enter and compete with the public sector. Part C, which the supreme leader took much longer to approve, complements Part A by calling for the overhaul of the state- dominated economy through divestiture of existing activities and assets in a wholesale manner. Accordingly, the government role is to change from direct ownership and man- agement of the economy to that of policy making, guidance and supervision. The private sector is to be strengthened and assisted in its international competitiveness. To these ends, 80 percent of the government’s shares in the areas falling under Article 44 (with some major excep- tions, notably up-stream oil and gas indus- tries) are earmarked to be transferred to the private and cooperative sectors.25 Part C also provides other enabling requirements for wholesale divestiture in terms of share pricing, sales conditions, publicity and other related matters.26 It is expected that, with full implementation of the program, the govern- ment would eventually own no more than 20 percent of the economy, consisting only of “mother” or strategic industries. 68 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 The new mandates reflect a near-total change from both the letter and the spirit of the original Constitution: they involve an overhaul of Iran’s economic structure and a historic revision of private-public relation- ships, defining the proper roles of the state and the market. Most astonishingly, they reflect a dramatic ideological shift in the supreme leader’s own creeds. An avow- edly austere cleric who had persistently enjoined the devout from seeking worldly goods seems to have lately changed his mind and gone on record stating that “the accumulation of national wealth and the establishment of social justice” are indeed “the two main pillars of Islamic econom- ics.”27 The official in charge of privatization has recently gone even further by claiming that the supreme leader, anxious to ensure national economic security, believes that “the creation of wealth is not only a necessity, but actually precedes its distribution.”28 SOCIAL-JUSTICE SHARES: AHMADINEJAD’S INITIATIVE The Ahmadinejad government that came to power in summer 2005, calling itself the “justice-driven administration” under the banner of mehrvarzi (compas- sion) represents in fact populism of the right rivaling Mussavi’s compassionate socialism of the left. The scheme, dedi- cated to the cause of the poor and deprived regions of the country, proposed a different direction to accomplish the privatization task. The president himself was widely quoted as having denounced the past actions as corrupt, ineffective, contrary to workers’ interest and tantamount to giving away the ranch. He openly accused the previous two administrations of selling public assets on favorable terms without proper safeguards to friends, relatives and cronies at one-fifth to one-eighth of their true worth — and all on credit.29 He even vowed to take back properties that were unjustly ceded to a few privileged individu- als, calling the transfers null and void.30 To reverse past injustices, the new president promised to change course and follow the privatization drive through the distribution of what he termed “justice shares” (saham-e edalat). The scheme, however, was neither original nor highly valued in informed circles. It was rooted in Ayatollah Khomeini’s repeated references to “Is- lamic justice.”31 Proposals to transfer shares of SOEs to the people in different forms and under different terms had also been offered by other sources as early as 1996.32 A published study, entitled Popular Privatization, had already proposed a detailed plan for giving every citizen “stock coupons,” redeemable in cash or ex- changeable with shares of SOEs, in order to raise national productivity and spread social justice at the same time.33 Rafsanjani’s campaign for the presidency in 2005 also promised a nationwide distri- bution of “stock coupons.” A Tehran Stock Exchange manager had suggested a similar proposal. Based on these varied schemes, the Ahmadinejad plan to distribute owner- ship was presented to the Majlis in October 2005, with the initial objective of granting stock rights to the lowest-income fami- lies.34 The program encompassed the distribution of shares of all government enterprises and semi-public entities under government jurisdiction. Interestingly, the scheme was presented not as a replace- ment, but as an adjunct to privatization with a set of other complementary objectives: equitable distribution of wealth combined 69 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE with steady income for the poor; propaga- tion of the culture of stock ownership; increasing enterprise productivity; changing the public’s negative view of private enter- prise; and enhancement of the share of the cooperative sector in the national economy. The Ministry of Welfare and Social Security was given the task of identifying prospective families among the lowest-income recipients in the country. The Ministry of Economy and Finance was to serve as a conduit for the transfer of shares. As finally put together, the multi- layered and complex program now involves (1) an initial sale on credit of SOE shares by designated enterprises to the Privatization Organization in 20-year installments; (2) subsequent sales by the POI to an intermediary agency called the Corporation for Transfer of Justice Shares (CTJS) within the Ministry of Economy and Finance on the same conditions; (3) separate agreements by CTJS with each of the country’s 30 Ostan (region) Justice Shares Cooperative; (4) sale by the Ostan JSC to 337 Shahrestan (province) JSCs; and (5) issuance by the latter of coupons to eligible recipients.35 In this complicated vertical lineup, individual coupon recipients are shareholders of their Shahrestan cooperative; Shahrestan cooperatives are shareholders of the Ostan holding compa- nies; Ostan holding companies are share- holders of the Transfer Corporation; and the latter holds shares of privatized SOEs on behalf of the government. Based on various official declarations, the Ahmadinejad administration intends to transfer to the public 80 percent of the shares of all designated state enterprises, estimated at $115- $120 billion within three years. Previously, an eight-year time horizon had been announced for the entire process.36 Forty percent of the assets are to be distributed under the justice-shares program, 35 percent offered to public investors through the Tehran Stock Market or sold through auction, and 5 percent earmarked for the workers and managers of the privatizing entities. The state will retain 20 percent of shares.37 The POI has announced an ambitious program of offering shares of 240 state enterprises up to March 2008. By the end of the period, the public sector’s share of the national economy is to be reduced to 20 percent from the current 65 percent, the private sector’s share will rise from 30 to 55 percent, and the share of the cooperative sector will go up to 25 percent from the present 5 percent.38 In the current perspective, share distribution is to reach some 21 million of the poorest 30 percent of the population, who will receive a total of 420 trillion rials (about $46 billion) in public-enterprise shares in three phases. In Phase I, the lowest-income 10 percent — an estimated 5.6 million individuals with an income less than 300, 000 rials a month ($32) and currently supported by various welfare schemes, would receive about 27 trillion rials.39 In Phase II, another estimated 7.4 million rural residents and migrating tribes will be included, receiving 6.5 trillion rials. In Phase III, the program will be extended to an estimated 8 million government employees, workers, retired army and security personnel, and civilian retirees — comprising the six lowest deciles of income receivers — who would receive about 10.5 trillion rials. Each member of a designated family of five (maximum) would initially receive 5 million rials worth of justice shares, and eventually 20 million rials. The beneficiaries are to pay for the coupons in 70 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 10 to 20 years out of the annual dividends on their shares. According to a special decree by the supreme leader, the lowest 20 percent of income earners are entitled to a 50 percent discount in the purchase price of their shares. Discounts or other benefits are also provided for workers and managers of privatizing firms. There are detailed provisions regarding further transactions in distributed coupons. The program has, from the start, faced five major challenges to its basic design. As the judiciary chief in a rare public statement has noted, there have been “strong differences of opinion” among the Islamic Republic’s various power centers regarding policies and actions in the implementation of Article 44 and the basic direction by the supreme leader and the Expediency Council40 — implying some resistance by the enterprises in voluntarily relinquishing their shares. The second hurdle has been the difficulty of identifying a reasonably accurate number of the “poor” in all three phases. Due to a near total absence of income-distribution data in Iran, figures regarding the size and status of the “poor” are both controversial and unreliable, with estimates ranging from zero to 30 percent of the total population. According to the current minister of welfare, “no one” in Iran was under the absolute poverty line.41 He later admitted that some 9.2 millions of Iran’s total urban and rural population of 70 million are under the absolute or relative poverty line.42 A Management and Plan Organization official and a Majlis deputy, however, give esti- mates of 10-12 percent. Two other members of the Majlis welfare committee put the figure at 13 and 20 percent, respec- tively, while a radical private economist raises the figure to 30 percent.43 The third challenge has been the selection of enterprises whose shares are to be transferred. If these entities were in the red and kept alive on public subsidies, transferring their shares would be tanta- mount to distributing poverty, not plenty. And if they were profitable businesses, the government could lose even more budgeted revenues from their operation and face larger deficits with more dire conse- quences. Fourth, obtaining an accurate, cost-based pricing of enterprise shares has been a thorny problem, given the compa- nies’ opaque accounting system, the unpublished amounts of annual state subsidies, loans received from state banks on favorable terms, unpaid taxes and other market data. In view of difficulties encoun- tered in pricing the total worth of even a small public enterprise in the earlier privatization exercises — sometimes stretching to several months — share pricing of the current mammoth govern- ment entities is likely to entail interminable disagreements among company accoun- tants and POI appraisers. Fifth, the elabo- rate, complex and ill-defined administrative and bureaucratic processes involved in carrying out various phases of the scheme constitute a new daunting task for the already overwhelmed bureaucracy. Finally, there have been no specific sources of financing officially designated for the elaborate administrative costs of the various agencies involved. Matching these multiple challenges faced by the program’s supporters is an apparent lack of enthusiastic demands on the part of the public as well as share recipients.44 This attitude reflects partly the insignificant immediate impact of the program on their daily lives, and it mani- fests the national financial culture that 71 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE exhibits a clear preference for tangible wealth such as land, property, gold, jewelry, antiques and even mobile telephones compared to financial assets.45 The poorer the income group, the less interest is shown in owning financial papers. Emblematic of this phenomenon is the fact that less than 10 percent of the Iranian population’s total possessions is in financial assets, compared to more than 60 percent in advanced countries. Published information about the justice- shares program so far is sketchy, contra- dictory and full of ambiguities. Actual share distribution reportedly began in February 2006 among the poorest group in four relatively “deprived” Ostans each of which received 5 million rials ($540). Within a year, a total of 5.6 million individuals reportedly received a total of about 27 trillion rials worth of shares.46 In defending his privatization record against widespread criticism, President Ahmadinejad has boasted that, in the previous 15 years, only 35 trillion rials of government shares had been privatized, while his government had thus far distributed more than 26 trillion, and intends to transfer another 60 trillion in the current and coming years.47 Assuming that the program succeeds in reaching its primary objective, there is no evidence, or even a reasonable assurance as yet, that other objectives of the program — increasing income, expediting privatization, downsizing the bureaucracy, promoting stock ownership habits, and enhancing enterprise efficiency — might be tackled or even approached. A palpable redistribution of income, the program’s prime objective, can hardly be accom- plished with the promised 11-15 percent annual dividend48 on the initial $50 or even the ultimate $200 distributed shares to a poor family member, half of which has to be paid back annually. Furthermore, there is no guarantee that privatized SOEs will have a double-digit return year after year and pay regular dividends so that the recipients can pay for their shares.49 Second, expediting the privatization process as the next major goal of the program is also difficult to imagine.50 In fact, it has been all too clear from the start that the objective of privatization (downsizing the public sector), and the goal of social justice (wealth redistribution), could not be opti- mized or even accomplished by one stroke, as the minister of economy and finance claimed.51 Privatization could not be achieved through a justice-shares program that leaves 20 percent ownership (and thus effective management control) in state hands. The program could at best be called partial denationalization rather than privatization. Third, downsizing the govern- ment through reduced ownership is equally dubious, given the nightmarish multi-stage structure of the share-distribution program. The Central Headquarters, led by the president and composed of nine ministers, the mammoth Holding Company possess- ing large shares of 500 SOEs, the 30 Ostan and 337 Shahrestan cooperatives — each with its board of directors, manag- ers, accountants, auditors, inspectors, etc. — would add to the government’s size instead of reducing it. Fourth, enhancing total-factor productivity as another crucial goal of the scheme is also questionable.52 There are already grave doubts about the technical, managerial and fiduciary ability of the Privatization Organization, the main Holding Corporation, and that of the regional and provincial cooperative societ- ies to perform their fiduciary duties.53 The only objective of the program that is 72 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 perhaps within reach, and has been partly achieved, is expanding the share of the cooperatives sector — so far the orphan segment of the national economy. For this reason, the justice-shares program has been dubbed cooperativization rather than privatization.54 Furthermore, despite continued state- ments and repeated assurances, there is great doubt that the program will be able to distribute even the first 5-million-rial tranche of the 20 million rials promised to its 21 million eligible recipients by February 2008.55 Fully aware of the difficulties involved in altering the recipients’ prefer- ence for tangible assets and alerted by the sad experiences of privatization in the former Soviet Union and Eastern Europe, the framers of the justice-shares program have placed a two-year total ban on sale of distributed coupons. They also strongly advise the recipients to hang onto their papers for steady returns and claim that the shares’ value has already gone up in the Tehran Stock Exchange. Nevertheless, there are scattered reports that, in certain shahrestans, the coupons are already being sold in the “informal” market at half their face value.56 And, notwithstanding the various legal restrictions imposed on the sale of distributed coupons, private analysts believe that a majority of the recipients are likely to bypass those restrictions and create a black market in shares in Iran’s underground economy. Or they may take advantage of several loopholes in the program by selling their shares back to their local cooperatives, making the latter a new, semi-public, large institutional share- holder. In either case, the effect would not only negate the program’s original intent but may entail new hazards for the economy. Many private economists warn about further fueling the already alarming double-digit inflation.57 Others argue that even those who may hang on to their coupons are likely to increase their con- sumption, stimulated by the wealth effect. The Iranians’ legendary low propensity to save and the bitter memories of the Tehran Stock Exchange crash in 2004 underscore these pessimistic forecasts. Altogether a cursory examination of the justice-shares program so far is suffi- cient to indicate that the scheme is an ad hoc populist program — poorly conceived, inadequately prepared and highly complex — with insufficient prior cost-benefit analyses or calculations of its socioeco- nomic consequences.58 For these reasons, even during the first phase of implementa- tion, it has undergone repeated changes in its major provisions and continues to do so.59 A great deal more data is needed to predict the ultimate success of the scheme. IRAN’S PRIVATIZATION PARADOX By a consensus of both domestic and foreign observers, the Islamic Republic’s 18-year privatization attempt has not been a success. The new scheme under the Guidelines also faces a multitude of challenges. As already mentioned, during the nearly two decades of privatization efforts, the public sector, if anything, has continued to expand several times faster than the privatized segment. The share of the national budget in GDP has nearly doubled; private savings and investments in relation to GDP have remained the same; and national-factor productivity has actu- ally declined.60 The number of major SOEs listed in the comprehensive annual budgets (excluding their subsidiaries) has reached more than 500 from less than 270 in 1989, and their share of total public expenditure 73 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE has risen to 73 percent from about 53 percent.61 More significantly still, after nearly two years since the Guidelines proclamation, which the supreme leader termed “an economic revolution,”62 not much interest has been shown by the private sector in the newly opened fields. While the constitutional “interpretation” of Article 44 was at the time hailed as the key to large-scale privatization, subsequent developments significantly tempered the initial euphoria. In the nearly two years since the first proclamation, no more than 10 percent of projected privatization revenues in the 2005 and 2006 national budgets actually materialized. This setback was so keenly felt that the supreme leader, in an unusual gesture, publicly chastised the government for the slow pace of privatization.63 As it turned out, however, the process had encountered another major obstacle. An ad-hoc Majlis committee, established to watch and expedite the privatization process, ultimately came to the conclusion that the main reason for the shortfall was the fact that the implementa- tion of the Guidelines still required special enabling legislation from the Majlis. With- out a specific parliamentary authorization, the privatizing agencies could not be found negligent in their transfer delays, and courts were not able to sanction the legality of transferred assets.64 According to a Privatization Organization official, despite repeated advertisements in newspapers, no offer has been received from the private sector for some of the public enterprises put up for sale.65 Although the Islamic Republic’s current domestic and international political climate, the real or imaginary winds of war with the United States or Israel, a shortage of domestic private capital and the paucity of foreign direct investments are often cited as the main causes of the economic malaise, the underlying cause may, in fact, lie in a more fundamental paradox. To be sure, under the Ahmadinejad government, which is accused of having “a clear anti- bourgeoisie policy aimed at paralyzing big investments by the private sector”66 and giving conflicting signals regarding govern- ment policy,67 the climate for liberalization, marketization and privatization has palpably deteriorated. Ahmadinejad’s own quasi- dictatorial interventions in various domestic economic arenas — goods, capital, labor and trade — have also actually intensified. Such various factors as his objection to streamlining energy prices, mandatory increases in workers’ paychecks, the mandated lowering of interest rates, compulsory earmarking of bank credits for the government’s favored but questionable projects,68 forced changes in private banks’ management, the arbitrary raising and lowering of tariffs on scores of items, threatening to take back the questionably transferred enterprises, the granting of lucrative contracts to certain special entities on a no-bid basis,69 the haphazard allocation of oil money to hundreds of small and questionable projects demanded by welcoming crowds during the president’s travels around the country, and allegations of government interference in the election of the Iran Chamber of Commerce presi- dent70 have all been pointed out as inimical to long-term domestic private investment.71 A longer and more specific list of chal- lenges to the implementation of the Guide- lines is presented by private-sector leaders and high government officials.72 A belligerent stance by the president on the nuclear-proliferation issue and a clumsy and needlessly hostile position 74 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 towards Washington and Tel Aviv have also resulted in a reluctance by foreign oil companies to invest in Iran; and de facto sanctions by European and other foreign financial and credit institutions under pressure from Washington have virtually shut off badly needed foreign direct investment.73 After President Ahmadinejad’s repeated statements that the UN and American sanctions have had no adverse effects on the economy or his nuclear policies and that Iran was unfazed by the prospect of further sanctions, the oil minister recently admitted that sanctions are hurting the oil industry.74 The Tehran Stock Exchange’s lackluster performance during the current administration and its recent erratic receptions to the initial public offering of four giant state steel, aluminum and copper enterprises, coupled with widespread reports about Iranian capital flight to Dubai, seem to confirm the political uncertainty hanging over the economy.75 To help the private sector finance its purchases of privatized shares, the government has decided to turn one of its state banks into a cooperatives bank with an additional 3.500 billion rials in capital, and has ordered other state banks to set aside 15 trillion rials in credit for large buyers of state enterprises in return for a 30 percent down payment in cash.76 It remains to be seen how these marginal measures may deal with the problem. Even in the absence of the current obstacles, however, an effective and measurable privatization drive remains an elusive goal due to the influence of a seemingly insoluble systemic paradox. On the one hand, there is no doubt that Iran’s current economic woes — high unemploy- ment, virulent inflation, low factor produc- tivity, slow growth, low levels of domestic savings and foreign direct investment, and relatively high but unprofitable public outlays — cannot be remedied without the creation and promotion of a strong private sector.77 Privatization is not an option but a necessity. On the other hand, there are certain indisputable indications that neither the institutional nor the ideological under- pinning of the Islamic regime would allow such a transformation.78 Institutionally, privatization is a daunt- ing, if not impossible, task in an oil export- ing country like Iran, where (a) the main- stay of the economy — oil reserves and revenues — is a government monopoly; (b) petroleum-export incomes are too large and far beyond government needs to finance and maintain the basic infrastruc- ture and provide public goods; (c) oil revenues are not directly distributed among citizens as in Alaska; and (d) oil windfalls are not placed in a “lock box,” to be invested abroad and drawn upon only during oil shortfalls and other emergencies as in Kuwait or Norway.79 In the absence of these four conditions, extra oil income received by the government would invari- ably be invested in new public enterprises and would always exceed the simultaneous privatization of existing ones. In Iran’s case, additional factors are also at play. Even in the most successful implementa- tion of the current privatization program, 20 percent of the ownership of privatized enterprises is to be retained by the govern- ment, another 40-45 percent of shares will also remain in state hands because the managers of privatized enterprises and the leadership of cooperatives will still be appointed by the ministries of finance, industry, commerce, cooperatives, and others. As a result, meaningful privatization would probably never be achieved since 75 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE the Islamic Republic’s sub-par perfor- mance lies not in public ownership but in poor management.80 Ideologically, too, privatization is anathema to the Islamic Republic’s political fabric and essence. True privatization requires, first, a clear legal recognition of private ownership rights with solemn guarantees regarding the impossibility of expropriation without due compensation. Second, it calls for the sanctity and security of contracts, business transparency, a modernized and private banking system, removal of inhibiting regulations, wage/ price decontrol, trade liberalization and a market-friendly labor code. Third, it requires a modern business and commer- cial law with proper safeguards against monopoly, unfair trade practices, and deceitful advertising strengthened by special provisions against stock fraud, price manipulation and insider information deals. Finally, the need is for an independent, honest, accessible non-political and busi- ness-savvy judiciary. None of these conditions exists in the highly regulated, rent-oriented, corruption- gripped, and non-transparent Islamic Republic. In fact, a recent report details the prevalence of preferential import licenses, access to interest free or cheap credit for well-connected groups, guaran- teed market shares for favored religious centers, and other such discriminatory practices.81 Furthermore, there is no doubt that such a firmly institutionalized and powerful private sector would inevitably cause the growth of competing political- power centers: private manufacturing associations, business roundtables, labor unions, an independent press, civic groups and political parties. All such develop- ments would be an existential threat to the supremacy of the velayat-e-faqih, the Supreme Leadership. The resolve to get the government out of economic ownership and management is thus as fragile as the regime’s confidence in its own survival. For these reasons, privatization has remained a process based on mutual reluc- tance. That is, in addition to the economic, political, financial and managerial opposition on the part of government agencies to offer their enterprises for sale, there has been a significant lack of interest by the public. The lack of enthusiasm on the demand side may be traced to the yet unchanged structure of the Iranian economy — the prevailing anti- business environment, continued price controls, trade restrictions and protection, unfair and misplaced public subsidies, a crippling labor law, absence of incentives for foreign investments, inadequate money and capital markets, a significant lowering of Iran’s ranking by Transparency International, and the earlier botched privatization efforts.82 In the candid opinion of a government official, other factors such as dependence of state entities on subsidies (particularly on energy), lack of transparency in investment opportunities, voluminous and ever-changing government regulations, and other inhospi- table conditions constitute further barriers to private-sector demand.83 As a prospective private investor told a recent industrial conference in Tehran, private businesses will obviously be reluctant to invest in the country or even to bid for government shares under present conditions, where they still have to observe government price ceilings while their wage bill and other costs are increasing, the commerce ministry raises and lowers tariffs at will and permits or restricts exports without notice, and the central bank keeps the exchange rate unchanged despite continued high inflation.84 76 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 END OF AN ERA? Privatization is now the ruling elite’s declared priority. From the supreme leader to government ministers, agency heads, religious luminaries and security officials, all sing the praises of a large private-sector role. The Privatization Organization persistently announces imminent offers of new enterprises going on the block, cover- ing oil and gas, petrochemicals, telecommu- nication, steel, aluminum, copper, cement, electrical power, state banks, insurance companies and other state entities.85 Yet, there are legions of skeptics in and out of the country who still believe that the whole proram is nothing but a clever ploy by the government to raise revenue to cover part of annual budget deficits. In any case, achieving the goal of social justice through a genuine privatization program, including social-justice shares, requires substantial prior changes in the Islamic Republic’s institutional and ideological underpinnings. It is becoming increasingly clear that, if the current schemes are to succeed, economic liberalization, de-monopolization and political democratization must precede them. However, in the frank opinion of the minister of finance, Iran is not yet ready for liberalization, and this ideal would take several more years to materialize.86 A comprehensive piece of legislation cur- rently submitted for debate to the outgoing Seventh Majlis — designed to allow the legal divestiture of Article 44 enterprises by the government and to provide a more hospitable and secure climate for private- sector expansion — may turn out to be of some help.87 But the essential privatization paradox still remains to be dealt with. 1 For all quotations see The Constitution of the Islamic Republic of Iran (Berkeley: Mizan Press, 1980). 2 See, for example, Kayhan Havaii (Tehran) 20, mordad 12 Aban, and 4 Esfand 1372 (June to February 1993) 3 For a brief description of early attempts, see Jahangir Amuzegar, “Iran’s Privatization Saga,” Middle East Economic Survey, June 17, 2002. 4 For a breakdown of sales figures by various government agencies as well as methods of sales (negotiation, auction, and the use of the stock market) during the first 12-year period, see “Trends of Privatization in Iran,” in www.Hamshahri.net, November 10 and 13, 2002, and January 16, 2003. See also statement by the privatization director in www.radioazadi.org, May 9,2002. 5 http://jomhourieslami, October 10, 2006. 6 www.donya-e-eqtesad.com, July 4, 2006 7 www.donya-e-eqtesad.com October 28, 2006. 8 www,donya-e-eqtesad, March 7, 2007. 9 www.hamshahri.net/news, June 15, 2007. 10 www.hamshahri.net February 1, 2003. 11 www.hamshahri.net, May 20, 2003. 12 Iran Economics, November 2006. 13 www.donya-e-eqtesad.com, June 20, 2006, and http://.jomhourieslami.net December 30, 2005. 14 Statement by the head of the Privatization Organization, reported in www.donya-e-eqtesad.com July 4, 2006. 15 According to a poll taken by the Ministry of Culture and Islamic Guidance, from 66 to 82 percent of the ordinary citizens opposed the privatization of banks, insurance companies, universities, hospitals, public utilities, air transportation, telecommunications and, most strongly, oil and gas. See www.hamshahri.net, August 18, 2004. 16 For example, of the 64 operating airports destined for privatization, only one, according to the head of National Aviation Organization, was profitable. www.hamshahri.net August 30, 2005. 17 See “Money and Inflation in the Islamic Republic of Iran.” IMF Working Paper WP/07/119, May 2007. 77 AMUZEGAR: ISLAMIC SOCIAL JUSTICE, IRANIAN STYLE 18 See statement by Ali Reza Mahjoob, reported in http://jomhourieslami.net, November 17, 2004. 19 For a sample of numerous shortfall reports, see www.radiofarda.com, April 29, 2002, and www. hamshahri.net, November 2, 2002. 20 www.radioazadi.org/Iran, November 8, 2002. 21 Five such cases were returned to their original state agencies. See www.hamshahri.net, June 27, 2002. 22 See “Private ownership in large economic spheres is legalized,” www. hamshahri.net, October 2, 2004. 23 For the background and details of the process, see Iran Economics, November 2006. 24 According to a knowledgeable Majlis deputy, the government owned more than 2,000 enterprises of which 1,500 were outside the mandate of Article 44. See www.hamshahri.net, August 17, 2004 25 Up to that date, only 49 percent of SOEs could be transferred. 26 For a comprehensive description of the five parts and a full discussion of related matters, see “Methods and Requirements of Article 44 Implementation,” Iran Economics, November 2006. 27 Statement reported in www.radiofarda.com/Article, February 19, 2007. 28 Statement by the head of the POI, reported in http://jomhourieslami.com, June 5, 2007. 29 www.radiofarda.com March 7, 2007; and donya-e-eqtesad, March 7, 2007. 30 For a typical criticism, see his speeches in Arak and Saveh reported in www.emrooz.info, May 18, 2006. 31 See “Imam's economic viewpoints,” in www.hamshahri.net, June 2,2005 32 For references, see “A Critique of Justice Shares,” http:// emruz.info, February 4, 2007. 33 See “Details of Shares Participation Through Coupons” in donya-e eqtead.com, October 16, 2005. 34 For details of the initial proposal, see donya e-eqtesad.com, October 28, 2005. 35 www.hamshahri.net, October 22, 2006. 36 Statement by the head of the POI in www.hamshahri.net/news, November 26, 2006. 37 Statement by the finance minister reported in http:// jomhourieslami.com, May 1, 2007. 38 Statement by deputy finance minister in www.donya-e-eqtesad.com, January 8, 2007. 39 www.donya-e-eqtesad.com, July 3, 2006; and www.hamshahri.net, May 8,2007. 40 See www. donya-e-eqtesad.com, April 18, 2007. 41 See “The Minister’s Claim,” http://emruz.info, March 13, 2007. 42 See www.iran-emrooz.net, August 12, 2007. 43 For sources of respective figures, see www.iranmania.com/news, May 15,2007; http://emruz.info April,29.2007; http://jomhourieslami.com, May2, 2007; and Guardian, April 30, 2007; Kayhan(London) June 27,2007. 44 See the dialogue between the minister of finance and the members of the Tehran Chamber of Commerce, reported in www. donya-e-eqtesad, July 22. 2007. 45 This attitude resembles the situation during the shah's time, when peasants showed significant resistance to cede the titles to their newly acquired small pieces of land under the land reform program to an agricultural cooperative in exchange for the cooperatives' shares. 46 www.donya-e-eqtesad.com April 22, 2007. 47 www. donya-e-eqtesad.com, May 19, 2007. 48 See statement by the head of POI in www.hamshahri.net/news, May12, 2007. 49 No dividend has so far been declared or distributed to coupon recipients, and no payment made for their receipts. 50 For a fuller discussion of the subject, see Islamic Republic of Iran: Managing the Transition to a Market Economy (Washington, D.C: International Monetary Fund, 2007). 51 www.donya-e-eqtesad.com, March 13, 2006. 52 For doubts in this regard expressed by the government's Management and Plan Organization publication, see www.donya-e-eqtesad.com, January 23, 2007. 53 For an official airing of these ambiguities and doubts, see “Three Unknowns about Justice Shares,” in www.donya-e-eqtesad, January 23, 2007; and a statement by an influential Majlis deputy reported in http:// jomhourieslami.com, June 20, 2007. 54 http://emruz.info, February 4,2007. 55 Statement by deputy minister of finance reported in www. hamshahri.net/news, May 8, 2007. 56 www.donya-e-eqtesad,com, April 17, 2007. 57 The World Bank and the Economist Intelligence Unit in their latest reports both predict higher inflation and 78 MIDDLE EAST POLICY, VOL. XIV, NO. 3, FALL 2007 slower GDP growth of the Iranian economy in the next three years. See www.radiofarda..com, June 2, 2007. 58 See statement by a member of the Tehran Chamber of Commerce in www. donya-e-eqtesad, July 24, 2007. 59 For a detailed critique of the program, see http://emruz.info, February 4, 2007, and May 21, 2007. 60 For details, see Iran Economics, June 2007. 61 For an evaluation of the privatization program, see Iran Economics, June 2007 62 www hamshahri.net, January 22,2007 63 See www.radiofarda.com, February 19, 2007. 64 See statement by Elias Naderan, www.donya-e-eqtesad, April 6, 2007. 65 http://jomhourieslami.com, June 20, 2007 66 See statement by a former president of the Tehran Chamber of Commerce, Financial Times, May 28, 2007. 67 http://jomhourieslami.com, June 22, 2007. 68 For the misuse of bank loans in the “quick return” projects see www.donya-e-eqtesad, June 18, 2007. 69 For details see the Wall Street Journal, October 14-15, 2006; and Financial Times, March 16, 2007. 70 www. radiofarda.com, June 13, 2007 71 See BBC Persian.com, June 12, 2007; www. radiofarda.com, June 13. 2007; and specifically the letter written to President Ahmadinejad by 57 economics professors of various Iranian universities reported in www.iran-emrooz.net, June 11, 2007. 72 See http://jomhourieslami.com, July 8, 2007; and www.donya-e-eqtesad, July 1, 2007. 73 www.payvand.com/news, May 12, 2007; and Associated Press, May 24, 2007. 74 Agence France-Presse, July 4, 2007. 75 For the warm reception of four attractively-priced and dividend-paying state metal companies see www. donya-e-eqtesad, August 11, 2007. For promises of starting the second and third phases of justice share distribution soon, and the first dividends to be paid on already distributed shares see http://jomhourieslami.com, August 14, 2007. 76 www.hamshahri.net, June 8, 2007; and www. donya-e-eqtesad, June 8, 2007. 77 In the candid opinion of the current minister of commerce, “without creating a genuinely competitive climate in the country, privatization would be meaningless.” www.donya-e-eqtesad.com, June 18,2007. 78 For more detailed references to some of these factors see “The Third Letter of Economists to Ahmadinejad,” in www iran-emrooz.net , July 15, 2007. 79 See Jahangir Amuzegar, “Iran’s Oil Stabilization Fund: A Misnomer,” Middle East Economic Survey, November 25, 2005. 80 For the significance of this factor see “Should state-owned financial institutions be privatized or reformed?” in IMF Survey, May 31, 2004. 81 See “New Era for Iran’s Private Sector,” in ISN Security Watch, www.isn.ethz.ch/news, June 26, 2007. 82 See statement by a Management and Plan Organization official in www.donya-e-eqtesad.com, December 9, 2006. 83 Statement by the head of the POI reported in www.hamshashri.net/news, May 1, 2007 84 www.donya-e-eqtesad.com, June 22, 2007. 85 For various lists of state enterprises put up for sale this year see http://jomhourieslami.com, June 23 and 27, 2007, and July, 22, 29, and 31, 2007; and www.hamshahri.net, July 16, 2007. 86 www.hamshahri.net, July 22, 2007. 87 For details see www.donya-e-eqtesad.com, August 11, 2007. 
work_ozrw2yotdbd7tatqylmsor2yyq	----	Social justice in the mathematics classroom London Review of Education DOI:�10.18546/LRE.14.2.07 Volume�14,�Number�2,�September�2016 Social justice in the mathematics classroom Pete�Wright* UCL Institute of Education, University College London Despite�increases�in�educational�attainment�in�London,�too�many�mathematics�lessons�remain� focused�on�factual�recall�and�procedural�understanding,�resulting�in�disaffection�among�learners.� This�study�reports�on�the�establishment�of�a�research�group,�comprising�five�teacher�researchers� and�myself,�which�aimed�to�challenge�this�situation�through�adopting�a�participatory�action� research�methodology.�By�planning,�teaching,�and�evaluating� innovative�classroom�activities,� the�group�demonstrated�how�making�mathematics�more�relevant�and�meaningful�can�enhance� students’�engagement�and�agency.�The�collaborative�and�mutually�supportive�nature�of�the� group�developed�teacher�researchers’�self-efficacy�in�addressing�issues�of�social�justice�in�their� mathematics�classrooms. Keywords:�social�justice;�mathematics;�participatory�action�research Introduction You� could� be� forgiven� a� degree� of� complacency� towards� the� current� state� of� mathematics� education�in�England�given�apparent�increases�in�attainment�over�the�past�20�years.�The�percentage� of�candidates�achieving� top�grades� (A*�to�C)� in�mathematics� in� the�General�Certificate�of� Secondary�Education�(GCSE)�examination,�taken�at�the�end�of�compulsory�schooling�at�age�16,� has�risen�steadily�from�45�per�cent�in�1995�to�63�per�cent�in�2015.�Children�in�London�schools� outperform�others�across�England.�The�above�measure�of�mathematics�performance�is�currently� 2�per�cent�higher�in�London,�which�has�also�seen�a�significantly�higher�rate�of�improvement�in� GCSE�performance�in�recent�years�than�elsewhere�(GLA,�2014). Yet�these�figures�contrast�with�growing�evidence,�some�of�which�is�presented�in�the�next� section,�suggesting�unacceptably�high�levels�of�alienation�and�disengagement�from�mathematics� among�a�large�proportion�of�learners.�They�also�hide�worrying�differences�in�achievement�between� different�groups�of�learners�that�highlight�persistent�inequities�in�mathematics�education. This�paper�argues�that�the�current�situation�that�predominates�in�mathematics�classrooms,� described�below,�should�not�be�taken�as�given,�and�that�alternative�approaches�towards�teaching� mathematics� should� be� adopted� that� address� issues� of� equity,� fairness,� and� social� justice.� It� reports�on�a�research�project�involving�a�group�of�secondary�mathematics�teachers�in�London� schools,�committed�to�the�principles�of�teaching�mathematics�for�social�justice,�who�set�out�to� put�some�of�these�ideas�into�practice.�It�recounts�the�experiences�of�the�teacher�researchers� and�discusses�how�the�development�of�their�thinking�and�classroom�practice�has�implications�for� others�involved�in�mathematics�education. *� Email:�pete.wright@ucl.ac.uk � ©Copyright�2016�Wright.�This�is�an�Open�Access�article�distributed�under�the�terms�of�the�Creative� Commons�Attribution�Licence,�which�permits�unrestricted�use,�distribution,�and�reproduction�in�any� medium,�provided�the�original�author�and�source�are�credited. London Review of Education� � 105 What’s wrong with mathematics education? By�the�age�of�16,�children�in�England�will�typically�have�spent�approximately�2,000�hours�learning� mathematics�in�school.�Yet�very�few�will�have�considered�questions�such�as�‘What�is�mathematics?’� and�‘Why�do�we�spend�so�much�time�learning�it?’,�suggesting�a�general�acceptance�of�its�position� in�our�society.�Mathematics�plays�an�important�role�as�a�‘critical�filter’,�providing�greater�access� to�further�education�and�higher-paid�employment�for�those�who�are�successful�(Black�et al.,�2009;� Wolf,�2002).�However,�not�everyone�agrees�that�this�status�is�fully�warranted�and�some�question� the�extent�to�which�mathematics�qualifications�provide�skills�that�are�useful�to�employers. Lerman�(2000:�21)�attributes�the�privileged�position�mathematics�occupies�in�the�curriculum� to�the�status�the�subject�has�been�afforded�‘as�an�exemplar�of�truth�and�rationality�since�ancient� times’.�Success�in�mathematics�is�often�used�as�a�measure�of�general�intelligence,�a�damaging� misperception�that�is�associated�with�a�view�of�mathematical�ability�as�fixed�rather�than�incremental� (D’Ambrosio,�2008).�Notions�of�fixed�mathematical�ability�underlie�the�predominance�of�setting� in�England,�where�students�considered�to�be�‘higher�ability’�are�taught�in�separate�groups�and� provided�with�a�more�demanding�curriculum�than�those�considered�to�be�‘lower�ability’�(Morgan,� 2009).�Despite�a�lack�of�evidence�that�setting�is�effective�(Winbourne,�2009),�the�vast�majority� of�students�in�England�aged�12�or�older�are�taught�mathematics�in�ability�groups,�with�many�in� lower�sets�receiving�a�largely�uninspiring�curriculum�and�considering�themselves�as�failures�from� an�early�age�(Hodgen�and�Marks,�2009;�Brown,�1999). Successive�UK�governments,�driven�by�international�comparisons�of�performance,�have�given� increasing�priority�to�raising�attainment�in�mathematics.�Mathematics�assessment�in�England�has� become�increasingly�high-stakes,�with�GCSE�mathematics�given�particular�importance�in�a�new� measure�of�performance�for�schools.�Together�with�accountability�measures�introduced�in�the� 1990s,�this�has�been�blamed�for�an�increasing�tendency�to�‘teach�to�the�tests’,�with�a�greater� focus�on�factual�recall�and�procedural�understanding.�This�is�at�the�expense�of�skills�that�are�more� difficult�to�assess�(i.e.�problem�solving,�reasoning,�and�communication),�which�are�precisely�those� demanded�by�higher�education�and�employers�(ACME,�2011). Nardi�and�Steward�(2003)�describe�the�‘quiet�disaffection’�of� large�numbers�of� learners� who�characterize�school�mathematics�as�being�boring,� irrelevant,�passive,� ignoring� individual� needs,�and�teaching�rules�without�any�rationale.�Even�successful�learners�become�alienated�from� mathematics�through�fear�of�identifying�themselves�as�passive�receivers�of�knowledge�(Boaler� and�Green,�2000).�It�is�not�surprising�that�it�becomes�socially�acceptable�to�admit�to�disliking� or�being�bad�at�mathematics,�given�the�disengaging�way�the�subject�is�commonly�taught�and�the� perceived�failure�experienced�by�so�many�students�(NCETM,�2008). The�figures�for�GCSE�mathematics�attainment�also�hide�worryingly�high�levels�of�inequality� in� achievement� and� participation� among� students� from� different� groups.� Girls� continue� to� display�significantly�lower�participation�rates�in�post-compulsory�mathematics�education,�despite� their�GCSE�attainment�being�similar�to�boys,�and�there�remains�a�strong�correlation�between� achievement�in�school�mathematics�and�social�class�(Boaler�et al.,�2011;�Noyes,�2009).�Given� the� role� school� mathematics� plays� as� a�‘critical� filter’,� these� differences� in� achievement� and� participation�inevitably�lead�to�the�perpetuation�of�social�inequities. Evidence� suggests� that� teaching� mathematics� through� more� open-ended,� collaborative,� problem-solving� approaches,� with� students� in� mixed-attainment� groups,� leads� to� more� equitable�outcomes�and�promotes�greater�participation�among�both�boys�and�girls� in�post- compulsory� mathematics� education� (Boaler,� 2008).� So� why� do� conventional� approaches� to� teaching�mathematics�persist�despite�the�priority�afforded�by�governments�towards�mathematics� education�over�the�past�30�years?�Over�the�same�period,�consensus�has�grown�among�the� mathematics�education�community�that�a�more�relevant�and�engaging�mathematics�curriculum� 106� � Pete Wright is�needed,�with�greater�emphasis�on�conceptual�understanding�and�problem�solving�(Cockcroft,� 1982;�ACME,�2011;�Ofsted,�2012). Bourdieu�(1998)�argues�that�one�of�the�primary�functions�of�schooling�is�to�reproduce�the� current�social�order�and�to�maintain�unequal�power�relations�existing�in�society.�It�does�this� by�concealing�these�relations,�for�example,�by�falsely�attributing�academic�success�to�notions� of�giftedness�or�merit,�which�is�evident�in�the�prevalence�of�setting�in�mathematics�classrooms.� Schools�claim�that�they�offer�equality�of�opportunity�–�whereas,�in�reality,�some�students�possess� higher� levels�of� the�‘cultural�capital’� that� is�recognized�and�valued�by�schools� (Jorgensen� et al.,�2014).�Bourdieu�argues�that,�through�their�upbringing,�children�from�middle-class�families� acquire�higher�levels�of�cultural�capital�than�those�from�working-class�families,�placing�them�at�an� advantage�before�they�arrive�at�school�(Noyes,�2008). I�outline�in�a�previous�paper�(Wright,�2012)�how�successive�UK�governments�have�increasingly� intervened�in�the�development�of�the�school�curriculum.�This�has�led�to�a�greater�influence�on� school�mathematics�of�educational�ideologies�that�champion�the�abstract�and�rigorous�nature� of�the�subject,�and�promote�practices�common�in�business�and� industry,� including�selection� and�marketization.�This�helps�to�explain�why,�despite�government�rhetoric�calling� for�a�new� generation� of� creative� and� mathematically� proficient� problem-solvers� able� to� drive� forward� economic� growth,� most� students� continue� to� experience� mathematics� lessons� that� involve� completing�a�series�of�almost�identical,�closed�questions. Skovsmose�(2011:�9)�describes�this�as�the�‘exercise�paradigm’,�which�cultivates�a�‘prescription� readiness’� and�‘prepares� the� students� for� participating� in� work� processes� where� a� careful� following�of�step�by�step�instructions�without�any�question�is�essential’.�Gutstein�(2006:�10)� argues�that�such�a�disempowering�mathematics�education�for�the�majority�reflects�capitalist� economies’�need�for�‘an�ever-growing�army�of�low-skilled,�compliant,�docile,�pleasant,�obedient� service�workers’.�As�well�as�helping�to�understand�and�explain�the�current�situation�described� above,�such�critical�perspectives�offer�an�alternative�vision�of�what�mathematics�education�might� look�like�in�practice. Teaching mathematics for social justice This�study�develops�a�conceptualization�of�‘teaching�mathematics�for�social�justice’,�which�provides� a�challenge�to�the�status�quo,�described�above,�that�disengages�and�disempowers�mathematics� learners.�It�draws�on�Freire’s�notion�of�‘critical�education’,�which�advocates�the�emancipation�of� learners�and�the�development�of�critical�citizenship�(Skovsmose,�2011).�It�is�based�on�the�premise� that�mathematics�education�can�and�should�play�a�role�in�addressing�difficulties�faced�by�our� society,�including�growing�inequality,�human�rights�abuses,�and�unsustainable�economic�growth� (Cotton,�2013). Skovsmose�(2011)�argues�that�a�critical�mathematics�education�should�include�reflecting� ‘through’,�‘with’,�and�‘on’�mathematics.�Learners�should�reflect�‘through’�mathematics�by�engaging� in�meaningful�mathematical�inquiries�in�which�they�pose�their�own�questions�and�make�their� own� decisions,� while� interacting� and� communicating� with� others.�They� should� reflect�‘with’� mathematics�by�using�it�as�a�means�to�develop�their�understanding�of�a�range�of�social,�cultural,� economic,�and�political�issues.�They�should�reflect�‘on’�mathematics�by�considering�its�nature�and� privileged�position,�and�appreciating�how�it�can�be�used�to�make�and�justify�decisions�affecting� their�lives. Gutstein�(2006)�outlines�how�adopting�a�curriculum�which�emphasizes�reasoning,�problem� solving,�and�communication,� in�order�to�develop�‘mathematical�power’�or�the�confidence�to� engage�in�complex�mathematical�tasks,�is�a�necessary�–�but�not�sufficient�–�condition�for�the� London Review of Education� � 107 empowerment�of�learners.�He�goes�further,�drawing�on�Freire’s�notion�of�‘praxis’,�to�argue�that� students�should�use�mathematics�to�investigate�and�challenge�injustices�and�inequities�relating� to�their�own�lives�and�wider�society.�He�emphasizes�that�‘reading�and�writing�the�world�with� mathematics’�depends�upon�students�being�willing�to�rethink�their�views�of�mathematics,�teachers� appreciating�the�socio-political�nature�of�mathematics,�and�developing�meaningful�relationships� between�students�and�teachers. The�following�conceptualization�of�teaching�mathematics�for�social�justice�(Wright,�2015:� 27),�drawing�on�the�ideas�of�Skovsmose�and�Gutstein�described�above,�is�adopted�for�this�study: •� employ� collaborative,� discursive,� problem-solving,� and� problem-posing� pedagogies,� which�promote�the�engagement�of�learners�with�mathematics •� recognize�and�draw�upon� learners’�real-life�experiences� in�order�to�emphasize�the� cultural�relevance�of�mathematics •� promote�mathematical�inquiries�that�enable�learners�to�develop�greater�understanding� of�their�social,�cultural,�political,�and�economic�situations •� facilitate�mathematical�investigations�that�develop�learners’�agency,�enabling�them�to� take�part�in�social�action�and�realize�their�foregrounds •� develop�a�critical�understanding�of�the�nature�of�mathematics�and�its�position�and�status� within�education�and�society. The research project In�May�2013,�I�contacted�120�mathematics�teachers�who�were�nearing�the�end�of�their�first�year� as�qualified�teachers,�and�who�I�had�previously�worked�with�as�a�tutor�during�their�initial�teacher� education�programme.�I�invited�them�to�take�part�in�a�research�project,�which�aimed�to�develop� ideas�and�classroom�practice�that�challenged�the�status�quo,�and�which�addressed�issues�of�social� justice�in�the�mathematics�classroom.�The�invitation�included�details�of�the�conceptualization�of� teaching�mathematics�for�social�justice,�which�was�to�serve�as�a�useful�starting�point,�and�the� ‘critical�research�model’�(see�below),�which�was�to�be�adopted�for�the�project.�Participants�were� self-selected�on�the�basis�of�sharing�a�commitment�to�the�aims�of�the�project�and�a�willingness� to�make�the�necessary�time�commitments.�These�included�attending�seven�twilight�meetings,� carrying�out�at�least�three�classroom�interventions�over�one�academic�year,�participating�in�three� interviews�–�at�the�start,�midway�through,�and�at�the�end�of�the�project�–�maintaining�a�research� journal,�and�completing�a�short�report�at�the�end�of�the�project. The�Teaching�Mathematics�for�Social�Justice�Research�Group�was�established�in�June�2013.�It� comprised�five�teacher�researchers�and�me�(as�university-based�researcher).�The�research�group� was�collaborative�and�participatory�in�nature.�While�I�played�an�important�role�in�facilitating� the�meetings�of�the�group,�and�collecting�and�analysing�research�data,�the�teacher�researchers� took�much�of�the�initiative�for�developing�their�own�practice.�They�chose�which�teaching�ideas� to�develop,�led�the�evaluation�and�discussion�of�activities�they�tried�out�in�the�classroom,�and� decided�the�method�for�collecting�feedback�from�students�(through�a�written�survey�administered� immediately�after�the�activity). The�design�of�the�research�project�was�based�on�the�‘critical�research�model’�of�participatory� action�research�(Skovsmose�and�Borba,�2004).�This�model�assumes�that�the�‘current�situation’� –�in�this�case,�the�typical�experience�of�mathematics�learners�in�classrooms�–�should�not�be� taken�as�given.�It�stresses�the�importance�of�an�alternative�vision�or�‘imagined�situation’�–�in� this�instance,�the�initial�conceptualization�of�teaching�mathematics�for�social�justice�described� earlier.�It�proposes�the�use�of�an�‘arranged�situation’,�whereby�the�participants�in�the�research,� 108� � Pete Wright taking�into�account�the�constraints�of�the�current�situation,�put�into�practice�some�aspects�of� the�imagined�situation.�The�three�key�processes�of�the�critical�research�model�(i.e.�‘pedagogical� imagination’,�‘practical�organization’,�and�‘explorative�reasoning’)�were�integral�to�the�operation� of�the�research�group. Pedagogical imagination�involves�developing�a�critical�understanding�of�the�current�situation;� for�example,�by�gaining�insight�into�how�critical�perspectives�(Gutstein,�2006;�Skovsmose,�2011)� might� help� to� explain� this� situation.�Teacher� researchers� were� encouraged� to� engage� with� research�findings�and�discuss�how�these�related�to�their�own�experiences�and�represented�viable� alternatives�to�current�practice.�The�first�meeting�of�the�research�group�focused�on�theoretical� ideas�underlying�the�research�project;�for�example,�I�asked�the�teacher�researchers�to�read�and� discuss�a�short�introductory�chapter�from�a�book�focusing�on�rethinking�school�mathematics� from�a�social�justice�perspective�(Gutstein�and�Peterson,�2005). Practical organization� involves� cooperation� between� research� participants� in� organizing� an�arranged�situation.�The�second,�fourth,�and�sixth�meetings�of�the�research�group�focused� primarily�on�jointly�planning�activities�to�try�out�in�the�classroom.�Teacher�researchers�were� encouraged�to�present�ideas�taken�from�currently�existing�resources�(Wright,�2004;�Gutstein� and�Peterson,�2005),�discussing�how�they�might�incorporate�these�into�their�lessons,�bearing�in� mind�the�constraints�of�the�classroom. Explorative reasoning�involves�analysing�the�arranged�situation�in�order�to�better�understand� the�current�situation�and�the�feasibility�of�the�imagined�situation.�The�third,�fifth,�and�seventh� meetings�of�the�research�group�focused�primarily�on�evaluating�and�reflecting�on�the�activities� tried�out�in�the�classroom.�Teacher�researchers�took�it�in�turns�to�present�their�evaluations,� making�use�of�student�feedback,�examples�of�students’�work,�and�notes�from�their�research� journals�to�inform�their�presentations.�Presentations�were�followed�by�questions�from�other� teacher�researchers�and�a�general�discussion,�which�informed�subsequent�planning,�teaching,�and� evaluation�cycles. Data collection and analysis Semi-structured�interviews�were�conducted�by�me,�in�the�teacher�researchers’�own�schools,�using� an�‘empathetic’�approach,�in�which�a�relationship�of�trust�is�established�and�a�story�is�constructed� jointly�through�interaction�and�dialogue�between�interviewer�and�interviewee�(Fontana�and�Frey,� 2008;�Kvale�and�Brinkmann,�2009).�Initial�questions�focused�on�the�development�of�interviewees’� thinking�and�classroom�practice�relating�to�social�justice.�Individually�tailored�follow-up�questions� were� used� to� explore� responses� in� more� detail� and� to� stimulate� further� discussion.�Audio� recordings�of�all�research�group�meetings�and�individual�interviews�were�transcribed�using�a� literary�style�(i.e.�ignoring�pauses,�fillers,�and�voice�intonations). A�thematic�approach�was�used�to�analyse�the�transcripts�using�‘meaning�condensation’,�in� which�the�text�is�broken�down�into�units�of�meaning�and�summarized,�and�‘meaning�interpretation’,� involving�assigning�a�category�to�each�unit�of�meaning�(Kvale�and�Brinkmann,�2009).�The�analysis� drew�on�methods�from�grounded�theory,�which�I�considered�to�be�consistent�with�my�critical� research�methodology.�While�maintaining�that�current�practice�should�not�be�taken�as�given,�and� offering�an�initial�conceptualization�for�a�more�desirable�alternative,�there�was�no�pre-existing� hypothesis�on�how�this�conceptualization�should�be�translated�into�classroom�practice.�Thus� it�was�possible�for�theories�and�hypotheses�to�emerge�within�a�theoretical� framework�that� informed�and�guided�the�action�research�cycles. This�thematic�analysis�made�use�of�inductive�coding,�whereby�the�categories�assigned�to� each�unit�of�meaning�were�derived�from�initial�readings�of�the�data.�Categories�were�then�used� London Review of Education� � 109 to�facilitate�the�comparison�of�commonalities,�differences,�and�relationships�between�units�of� meaning,� enabling� new� themes� to� emerge� (Gibson� and� Brown,� 2009).� Such� comparisons,� in� contrast�to�simplistic�coding�that�is�more�easily�quantified,�take�into�account�the�context�of�the� text,�allowing�meaning�to�be�constructed�from�the�stories�of�the�research�participants.�Initial� findings�from�the�data�analysis�were�then�related�back�to�the�theories�underlying�the�project� in�order�to�generate�new�analytical�questions�giving�further�meaning�to�the�data�(Jackson�and� Mazzei,�2012). Careful� consideration� was� given� to� Lincoln� and� Guba’s� (2003)� framework� for� ensuring� the� trustworthiness� of� qualitative� research,� with� particular� attention� paid� to� the� credibility,� transferability,�dependability,�and�confirmability�of�the�research�findings. The�‘credibility’�and�‘confirmability’�of�the�findings�–�that�is,�confidence�that�the�phenomena� are� accurately� represented� and� derived� from� the� experiences� of� the� participants� –� were� promoted�through�adopting�various�procedures�focusing�on�reflexivity�and�triangulation.�These� included:�maintaining�my�own�research�journal�and�code�log;�‘prolonged�engagement’�with�teacher� researchers�over�a�period�of�one�year;�the�use�of�student�surveys�and�final�reports�to�triangulate� data;�‘iterative�questioning’�through�following�up�previous�responses�in�individual�interviews;�and� ‘member�checks’�through�presenting�my�analysis�back�to�teacher�researchers�for�their�comment� (Shenton,�2004).�A�second�thematic�analysis�was�carried�out�on�a�selection�of�the�data�in�order� to�assess�the�credibility�of�the�research�processes.�This�analysis�made�use�of�deductive�coding,� based�on�the�key�processes�of�the�critical�research�model,�and�previously�established�reliability� criteria�for�action�research�–�that�is,�the�extent�to�which�it�is�participatory,�collaborative,�relevant,� and�results�in�positive�social�change�(Brydon-Miller�et al.,�2003). The�‘transferability’�and�‘dependability’�of�the�research�(i.e.�enabling�the�reader�to�make�an� informed�judgement�about�the�relevance�of�the�findings�to�his�or�her�own�situation,�and�to�repeat� the�study�if�desired)�were�assured�by�providing�‘thick�descriptions’�of�the�context�of�the�research� and�its�design�(Shenton,�2004).�These�include�detailed�descriptions�of�the�research�model�and� framework�for�analysing�data,�my�own�background�and�the�development�of�my�interest�in�the� field,�and�a�detailed�case�study�of�the�research�group�and�the�teacher�researchers’�involvement� in�the�project.�These�descriptions,�while�too�lengthy�to�include�in�this�paper,�can�be�accessed� through�my�doctoral�thesis�(Wright,�2015). Research findings Four�themes�emerged�during�the�analysis�of�the�first�set�of�interviews�and�these�were�used�as� the�basis�for�the�thematic�analysis�of�data�from�subsequent�meetings�and�interviews.�The�four� themes�provided�a�useful�structure�for�reporting�the�findings�of�the�research�project,�using�a� case�study�approach�to�narrate�the�stories�of�the�teacher�researchers’�involvement�in�the�project� and�the�development�of�their�thinking�and�practice.�The�five�teacher�researchers�–�Anna,�Brian,� George,�Rebecca,�and�Sarah�(all�pseudonyms)�–�taught�in�multi-ethnic�comprehensive�schools�in� Inner�London�with�varying�records�of�attainment�in�GCSE�examinations.�Their�schools�all�shared� a�relatively�high�proportion�of�students�who�spoke�English�as�an�additional�language,�students� with�statements�of�special�educational�needs,�and�students�eligible�for�free�school�meals. Theme 1: Changing epistemologies of mathematics The�development�of�the�teacher�researchers’�classroom�practice�over�the�course�of�the�project� appeared� to� be� closely� related� to� their� changing� views� of� mathematics� and� their� students’� perceptions�of�the�subject.�While�they�all�considered�themselves�to�be�successful�learners�of� 110� � Pete Wright mathematics,�they�viewed�the�subject�as�entirely�content-focused�when�they�themselves�were� at�school,�only�later�beginning�to�appreciate�its�value-laden�and�socially�constructed�nature.�The� most�significant�changes�in�their�epistemologies�of�mathematics�took�place�during�their�initial� teacher�education�programme,�and�through�their�involvement�with�the�project: I�always�remember�this�session�we�did�where�they�were�saying�‘What�is�maths?’�And�I�was�like� ‘What�is�maths?�I’ve�just�joined�this�teacher�training�course�to�teach�maths�and�I�don’t�really� know�what�it�is’. (Anna,�Interview�2) Through�reflecting�on�the�nature�of�mathematics�during�research�group�meetings,�they�became� more�aware�of�their�own�perspectives�and�how�these�affected�their�approaches�to�teaching. By� engaging� with� research� theories� and� trying� out� ideas� in� the� classroom,� the� teacher� researchers�began�to�rethink�their�ideas�about�addressing�issues�of�social�justice.�There�was�a� distinct�move�away�from�viewing�these�ideas�merely�as�a�way�of�enriching�lessons�towards�seeing� them�as�a�legitimate�and�essential�aspect�of�teaching�mathematics,�which�promoted�mathematical� understanding�and�made�the�subject�more�relevant�and�meaningful�to�students: It’s�given�me�the�confidence�to�step�off�the�scheme�of�work�treadmill,�of�getting�through�different� topics�or�chapters,�and�actually�saying:�‘Well,�these�topics,�say�cumulative�frequency,�or�percentages,� I�can�fit�these�within�a�project�on�something�to�do�with�these�kids’�world,�or�to�do�with�our� world�as�a�whole.’ (Brian,�Interview�3) Over� the� course� of� the� project,� the� teacher� researchers� became� more� and� more� critical� of� conventional� mathematics� teaching,� increasingly� seeing� this� as� resulting� in� procedural� understanding�and�causing�students�to�view�mathematics�as�boring�and�pointless.�At�the�same� time,� they� strengthened� their� belief� in� student-led,� collaborative,� discursive,� problem-solving� approaches�to�learning: I�think�things�such�as�trying�to�give�them�a�bit�of�agency�and�choice�in�lessons,�things�like�encouraging� them�to�work�together�in�groups�…�have�been�things�that�I’ve�done�more�of�because,�as�part�of� the�project,�I’ve�found�them�to�be�helpful�and�useful. (Brian,�Interview�3) However,�they�continued�to�recognize�the�importance�of�learning�discrete�mathematical�skills,� which�they�believed�should�be�complemented�by,�rather�than�replaced�by,�tackling�issues�of�social� justice.�There�was�a�growing�appreciation�of�the�need�to�establish�stronger�links�between�social� justice�issues�and�mathematical�skills�at�an�appropriate�level�of�challenge�for�students.�While� incorporating�social�justice�issues�began�to�impact�on�students’�perceptions�of�mathematics,�the� teacher�researchers�reported�that�some�students,�particularly�where�they�found�the�mathematical� content�too�easy,�expressed�concern�that�they�were�not�studying�‘real’�or�‘proper’�mathematics. Theme 2: Developing student agency Three�of�the�teacher�researchers�cited�a�desire�to�change�society�for�the�better�as�a�reason� for�becoming�a�mathematics�teacher�in�the�first�place.�All�five�shared�a�strong�belief�in�tackling� inequity�through�raising�the�attainment�of�disadvantaged�students,�which�explains�their�choice�of� an�initial�teacher�education�programme�that�placed�them�in�schools�with�relatively�high�levels�of� socioeconomic�deprivation.�They�viewed�motivating�students�as�a�high�priority�and�convincing� students�of�the�utility�of�mathematical�procedures,�by�making�the�subject�more�realistic�and� meaningful,�was�seen�as�a�way�of�achieving�this. London Review of Education� � 111 The�maths�today�made�me�realize�how�the�simplest�maths�can�change�lives. (Year�10�student�in�Brian’s�class�in�response�to�activity�on�Fairtrade) The� teacher� researchers� initially� felt� most� comfortable� developing� activities� that� involved� using�mathematics�to�develop�a�better�understanding�of�social�justice�issues,�including�public� misperceptions�about�benefit�fraud�and�immigration,�the�sustainable�use�of�water�and�allocation� of�resources,�average�incomes�and�global�inequality,�voting�systems,�and�Fairtrade.�They�reported� a�genuine�interest�for�such�issues�among�students,�together�with�a�developing�appreciation�of� how�mathematics�might�be�used�to�solve�problems�in�real�life. Over�the�course�of�the�project,�there�was�growing�interest�among�the�teacher�researchers� in�developing�student�agency,�something�they�had�given�less�thought�to�previously. I�think�the�agency�thing�was�definitely�something�I�hadn’t�considered�at�the�start.�Like,�I�saw�it�more� as�applying�maths�to�different�situations,�rather�than�using�maths�to�actually�change�something. (Rebecca,�Interview�3) The�‘Making�a�Change’�project,�which� involved�students�using�mathematics�to�develop�their� understanding�of�an�issue�of�their�choice�and�present�an�argument�for�a�change�they�would� like�to�see�made,�became�the�focus�of�the�third�action�research�cycle.�While�fostering�students’� mathematical�engagement�and�agency�became�increasingly�important�to�the�teacher�researchers� in� the� development� of� their� practice,� there� was� a� growing� appreciation� that� the� notion� of� ‘student�agency’�needed�to�be�handled�carefully.�George�warned�that�agency,�on�its�own,�was� not�necessarily�desirable�as�students�also�needed�to�develop�open-mindedness�and�sensitivity� towards�issues�of�social� justice�in�order�to�become�positive�agents�of�change.�The�question� of� whether� teachers� should� encourage� students� to� explore� issues� and� arrive� at� their� own� conclusions,�or�guide�students�towards�developing�particular�beliefs�and�values,�was�highlighted� during�the�Fairtrade�activity�when�some�students�openly�questioned�the�validity�of�Fairtrade. I�think�maths�today�was�good�as�it’s�showing�actual�statistics�which�has�made�me�think�‘fair�trade’� isn’t�fair. (Year�9�student�in�Rebecca’s�class�in�response�to�Fairtrade�activity) The�teacher�researchers�reported�that�most�students�responded�positively�to�the�activities,� demonstrating�greater�levels�of�engagement�and�enjoyment�of�learning�through�their�behaviour� and�responses�to�the�feedback�survey.�This�was�particularly�noticeable�among�students�who�had� previously�been�poorly�motivated�and�badly�behaved�in�mathematics�lessons: I�tried�a�few�things�with�my�bottom�set�and�their�motivation�has�just�been�so�high�in�those� particular�lessons�that�I’ve�had�to�very�rarely,�like,�tell�them�to�get�on�with�things�or�to�do�things. (Anna,�Interview�3) Theme 3: Collaborative nature of research group The�teacher�researchers�described�how�the�opportunity�to�work�collaboratively�with�colleagues� from�different�schools�in�a�research�group�attracted�them�to�the�project.�The�invitation�came� towards�the�end�of�their�first�year�as�qualified�teachers,�after�which�they�would�no�longer�be� receiving�the�same�level�of�structured�support�and�professional�development�from�their�schools.� They�were�just�beginning�to�think�about�the�direction�they�would�like�their�practice�to�develop,� and�where�they�might�get�support�to�help�them�achieve�this. I�think�the�whole�project�is,�for�me,�about�developing�myself�as�a�practitioner,�and�in�a�way�that� I’d�like�to�develop. (Anna,�Interview�1) 112� � Pete Wright The�group�quickly�established�positive�working�relationships,�helped�by�the�fact�that�they�knew� each�other� from�their� initial� teacher�education�programme.�The�mutually�supportive�nature� of�the�group�encouraged�the�teacher�researchers�to�take�risks�and�overcome�many�of�the� challenges�and�constraints�they�encountered�in�developing�alternative�classroom�practices: And�it’s�also�provided�that�additional�incentive�to�do�it,�and�to�take�the�risk,�because�you�know� that�you’re�going�to�be�asked�to�talk�about�it.�But�also�you�know�you’re�going�to�be�allowed�to� talk�about�it�in�a�way�that�says�that�messing�up�doesn’t�matter. (Brian,�Interview�3) This�was�exemplified�by�the�way�in�which�the�rest�of�the�group�encouraged�and�reassured� Rebecca�after�she�presented�the�evaluation�of�her�initial�attempt�at�the�Making�a�Change�project.� Having�been�the�first�in�the�group�to�try�the�activity,�she�was�clearly�disheartened�by�the�logistical� problems�she�encountered.�However,�the�rest�of�the�group�recognized�the�potential�of�her�ideas� and�went�on�to�develop�them�into�a�successful�activity. It�is�quite�useful�having�that�kind�of,�I�don’t�know,�support�almost,�and�being�able�to�just�tell� someone�exactly�what�happened�and�have�their,�kind�of,�outside�view�on�it. (Rebecca,�Interview�2) The�teacher�researchers�were�keen�to�engage�with�the�research�theories�underlying�the�project,� and�reported�how�these�challenged�their�preconceptions,�enabling�them�to�develop�a�broader� and�deeper�understanding.�They�acknowledged�the�role�I�played,�as�university-based�researcher,� in�raising�their�awareness�of�these�theories�and�providing�a�structure�for�developing�ideas.�They� concurred�that�engaging�with�theories,�discussing� ideas,�and�comparing�experiences�–�along� with�the�collaborative�planning,�teaching,�and�evaluation�of�classroom�activities�over�a�sustained� period�–�had�a�considerable�impact�on�their�thinking�and�practice: It’s�been�the�most�impactful�CPD,�in�my�opinion,�that�I’ve�had�this�year,�because�it’s�sustained�…� I’ve�actually�seen�the�impact�of�this�project�on�the�children�and�the�lessons�that�I�teach,�whereas� very�often�with�CPD,�it’s�one�afternoon,�you�go�away�and�come�back,�and�it�goes�out�of�your� head�like�that. (Anna,�Interview�3) The�teacher�researchers’�growing�confidence�in�translating�research�theories�into�classroom� practice�was�evident�in�the�way�they�began�to�encourage�other�teachers�in�their�school�to�take� on�board�the�ideas�from�the�project.�Anna,�Brian,�and�Rebecca�ran�related�training�sessions�for� their�departments,�and�three�of�the�schools�used�activities�from�the�project�with�an�entire�year� group.�It�became�apparent�that�news�of�the�positive�impact�the�activities�had�on�students�spread� quickly�and�generated�interest�in�the�project�across�departments. Success�has�bred�more�success,�because�if�they’ve�seen�a�lesson�go�well,�then�they�want�to�teach� it,�and�then�their�lesson�goes�well,�and�then�it�sort�of�spreads. (Rebecca,�Interview�3) Theme 4: Dominant discourses on ability and attainment The�teacher�researchers�became�increasingly�aware�of�constraints�that�they�felt�might�discourage� teachers�from�promoting�social�justice�in�the�mathematics�classrooms�–�in�particular,�the�exam- focused�culture�in�schools,�excessive�workload,�and�high�levels�of�scrutiny�of�teachers.�There�was� growing�appreciation�that�a�narrow�focus�on�raising�the�attainment�of�disadvantaged�students,� while�ignoring�structural�inequities,�resulted�in�low-risk�teaching�and�procedural�understanding: London Review of Education� � 113 I�think�it�makes�you�less�likely�to�take�risks�with�your�classes.�If�you�know�that�there’s�a�chance� that�someone�pops�in,�you’re�more�likely�to�do�lots�of�very�average�lessons,�than�one�lesson�that� could�blow�up�in�your�face�or�it�could�go�amazingly,�because�you�know�that�you’d�be�judged�on� that�one�lesson. (Brian,�Interview�1) The�teacher�researchers�concurred�that�the�mutual�support�provided�by�the�research�group� helped�them�to�overcome�many�of�these�constraints.�Developing�a�greater�understanding�of�the� links�between�social�justice�issues�and�mathematical�skills�enabled�them�to�resolve�the�conflict� between�tackling�these�issues�and�getting�through�the�scheme�of�work.�Sharing�ideas�and�resources� within�the�group�compensated�for�the�additional�time�required�to�plan�meaningful�activities.� The�positive�impact�of�the�project,�on�students’�engagement�and�mathematical�understanding,� reassured�the�teacher�researchers�that�the�project’s�aims�were�not�in�conflict�with�the�desire�to� raise�mathematical�attainment: I�do�think�I�feel�under�more�pressure�to�get�through�all�the�material.�I�am�struggling�a�bit�on�that� front,�which�means�that�any�social�justice�activity�has�to�be�very�specifically�linked�to�something,� a�mathematical�skill�that�is�not�going�to�be�taught�in�any�other�way. (Rebecca,�Interview�2) The�teacher�researchers�reported�an�initial�tendency�to�try�out�new�ideas�with�higher-attaining� students,�who�were�generally�better�behaved�and�more�positively�disposed�towards�learning.� However,�over�the�course�of�the�project,�they�began�to�realize�that�the�benefits�were�most� apparent�for�lower-attaining�students,�who�demonstrated�greater�improvements�in�their�levels� of�engagement�and�achievement.�It�became�noticeable�that�the�highest�attaining�students�showed� the�least�enthusiasm�towards�alternative�teaching�approaches�advocated�by�the�project,�perhaps� because�they�associated�their�own�relative�success�with�conventional�teaching�approaches: I�think,�if�you�are�at�the�top�end�of�the�top�set,�you’ve�put�your�hat�on�the�fact�that�you�get�things� right,�and�as�soon�as�in�maths�it’s�no�longer�about�you�getting�the�right�numerical�answer,�you� suddenly�feel�like�things�are�not�under�your�control�any�more,�and�you’re�not�top�dog�any�more. (Brian,�Interview�2) Over�the�course�of�the�project,� the�teacher�researchers�began�to�question�previously�held� assumptions�about�mathematics�teaching,�particularly�the�notion�of�mathematical�ability�being� fixed.�Initially,�there�was�little�criticism�of�the�rigid�setting�prevalent�in�their�departments.�However,� they�began�to�question�its�benefits,�expressing�increasing�concern�that�concentrating�together� students�with�lower�confidence�and�less�positive�dispositions�towards�learning�might�contribute� towards�widening�differences�in�attainment. Implications of the research project The�research�project,�with�its�methodology�based�upon�the�critical�research�model�and�the�initial� conceptualization�of�teaching�mathematics�for�social�justice,�was�focused�as�much�on�the�process� for�bringing�about�change�as�on�what�that�change�might�look�like.�This�focus�is�reflected�in�the� research�findings,�which�have�implications�in�three�areas:�mathematics�teaching,�the�professional� development�of�mathematics�teachers,�and�mathematics�education�research. Implications for mathematics teaching The�project�demonstrated�how�mathematics�can�serve�as�a�powerful�means�for�developing� students’�understanding�of�issues�of�social�justice,�and�that�students�are�likely�to�develop�an� 114� � Pete Wright understanding�of�both�social�justice�issues�and�mathematical�concepts�when�there�is�a�meaningful� link�between�the�two.�It�showed�how�student�agency�can�be�developed�by�adopting�collaborative,� problem-solving�approaches�to�teaching,�and�encouraging�students�to�choose�which�issues�to� explore�and�which�mathematical�procedures�to�apply.�Developing�and�presenting�their�own� arguments�enables�students�to�gain�an�appreciation�of�how�mathematics�can�be�used�to�better� understand�a�situation�and�to�argue�for�a�change. The�project�highlighted�how�making�mathematics�more�meaningful�and�relevant�to�students’� real-life�experiences�can�raise�their�levels�of�engagement�with�the�subject�as�they�develop�an� appreciation�of�its�purpose�and�possible�future�application.�This�is�particularly�noticeable�among� lower-attaining�and�previously�disaffected�students,�suggesting�that�such�an�approach�has�the� potential�for�closing�the�attainment�gap�among�students�–�although�the�duration�of�the�project� was�too�short�to�provide�any�evidence�of�this�happening.�However,�care�needs�to�be�exercised� when� relating� mathematics� to� students’� real-life� experiences.� Educational� opportunities� for� disadvantaged�students�can�be�restricted�if�connections�are�made�only�with�their�backgrounds.�For� this�reason,�Skovsmose�(2011)�argues�that�mathematics�should�relate�to�students’�‘foregrounds’�–� that�is,�real-life�experiences�that�move�beyond�their�current�situations.�While�there�may�be�some� resistance�to�these�teaching�approaches�among�higher-attaining�students,� it�should�be�noted� that�many�such�students�choose�not�to�study�the�subject�beyond�the�compulsory�level.�Initial� resistance�might�therefore�be�outweighed�by�the�potential�of�these�approaches�to�encourage� more�students�to�study�mathematics�at�higher�levels. The�project�also�demonstrated�how�engaging�with�research�findings�enables�teachers�to� develop� insight� into� structural� inequities� in� mathematics� education.�Through� developing� an� appreciation�of�the�processes�that�lead�some�students�to�become�alienated�from�mathematics,� teachers�may�become�more�willing�to�use�a�range�of�alternative�pedagogies�with�students�who� are�less�predisposed�towards,�but�have�the�most�to�gain�from,�discursive,�open-ended�approaches� to�learning. Another�issue�highlighted�by�the�project�was�how�uncommon�it�is�for�students,�even�those� studying�mathematics�at�degree�level,�to�be�asked�to�reflect�on�the�nature�of�the�subject�despite� the�privileged�position� it�occupies� in�the�school�curriculum.�Encouraging�students�to�do�so� appears�to�be�an�effective�way�of�challenging�myths,�such�as�the�belief�that�mathematics�is�value- free�or�that�mathematical�success�is�pre-determined�by�innate�ability,�perhaps�preventing�these� myths�from�being�perpetuated�from�one�generation�to�the�next.�Enabling�students�to�better� understand�their�own�situation�can�help�those�who�are�disadvantaged�in�learning�mathematics� to�overcome�barriers�to�achieving�success.�Furthermore,�the�project�emphasized�the�importance� of�establishing�relationships�based�on�trust�and�mutual�respect�between�teacher�and�students�if� such�discussions�are�to�have�any�effect. Implications for the professional development of mathematics teachers The�project�demonstrated�how�the�critical�research�model,�with�its�focus�on�relating�theory�to� practice�and�ensuring�that�the�current�situation�is�not�taken�as�given,�can�have�a�considerable� impact�on�the�thinking�and�classroom�practice�of�mathematics�teachers�with�a�concern�for� social�justice.�The�role�of�the�external�partner�–�in�facilitating�the�engagement�of�such�teachers� with�research�findings,�and�encouraging�them�to�critically�appraise�their�own�practice�in�relation� to�theory�–�was�shown�to�be�a�crucial�aspect�of�the�model.�This�process�allows�teachers�to� develop�a�more�profound�and�critical�understanding�of�their�own�practice�and�how�this�relates� to�existing�practice�across�different�schools.�It�can�lead�to�greater�awareness�of�structural�causes� of�inequity�and�injustice�in�mathematics�education,�including�the�use�of�setting�to�group�students� by�attainment�and�ignoring�the�effect�of�social�class�on�students’�achievement. London Review of Education� � 115 Addressing�issues�of�equity�and�social�justice�was�shown�to�be�an�important�factor�for�some� mathematics�teachers�in�deciding�to�become�a�teacher�in�the�first�place.�The�project�suggested� that� such� teachers� are� favourably� disposed� towards� reflecting� on� their� epistemologies� and� experiences�as�learners.�In�so�doing,�they�are�likely�to�strengthen�their�belief�in�the�effectiveness� of�student-led,�collaborative,�problem-solving�approaches�to�learning.�The�critical�research�model� allows�these�teachers�to�re-engage�with�ideas,�which�they�may�have�lost�sight�of�as�a�result�of� pressures�they�face�in�the�classroom,�enabling�them�to�become�more�comfortable�in�their�roles�as� mathematics�teachers.�The�high�level�of�interest�in�the�project�shown�by�the�teacher�researchers’� colleagues�indicated�that�there�might�be�significant�numbers�of�mathematics�teachers�in�schools� sharing�a�concern�for�social�justice�issues. The� project� highlighted� the� effectiveness� of� a� collaborative,� participatory,� and�sustained� approach�to�professional�development.�Collaborative�relationships�that�develop�over�a�prolonged� period�of�time�enable�teachers�to�provide�the�mutual�support�necessary�to�overcome�constraints� and�to�take�risks�in�the�classroom.�Through�the�joint�planning�of�lessons�and�the�sharing�of� experiences�among�colleagues�from�a�range�of�different�schools,�teachers�are�able�to�engage�with� new�ideas�and�develop�their�thinking�appreciably.�The�critical�research�model�demonstrates�how� teachers�are�able�to�develop�their�agency�and�self-efficacy�in�deciding�the�direction�and�extent� of�changes�in�their�classroom�practice. Implications for mathematics education research The� project� demonstrated� how� the� critical� research� model� can� enable� teachers,� through� reflecting�on�classroom�practice�and�its�underlying�theories,�to�generate�relevant�knowledge� that�is�transferable�to�other�classroom�situations.�The�project�showed�how�research�undertaken� collaboratively�with�teachers�working�in�‘typical’�classroom�situations�(i.e.�those�where�common� issues�and�constraints�relating�to�developing�practice�are�present)�is�likely�to�be�perceived�as� relevant�and�authentic�by�other�teachers.�Such�research�therefore�has�the�potential�to�increase� teachers’�engagement�with�research�findings. The�critical�aspect�of�the�research�design�enables�new�knowledge�to�be�generated�that� challenges�existing�discourses�in�schools,�and�has�the�potential�to�address�inequities�and�injustices� existing� within� mathematics� classrooms,� schools,� and� wider� society.� The� project� outlined� processes�that�enable�transformations�in�classroom�practice�to�take�place,�and�highlighted�how� university-based�researchers�and�teacher�researchers�can�act�collaboratively�as�agents�of�change. Research� based� on� collaborative� and� participatory� methodologies� is� generally� under- represented�in�academic�journals,�reflecting�a�lack�of�confidence�in�its�reliability.�Through�the� attention�paid�to�issues�of�trustworthiness,�only�some�of�which�is�presented�in�this�paper,�the� project� demonstrated� how� participatory� action� research� from� a� critical� perspective� can� be� systematic�and�rigorous,�as�well�as�generating�relevant�knowledge�with�the�potential�to�bring� about�positive�social�change. Conclusion The� research� project� reported� in� this� paper� provides� some� insight� into� what� teaching� mathematics�for�social�justice�might�look�like�in�practice,�and�how�it�can�be�promoted�through�an� effective�model�of�professional�development.�It�also�demonstrates�how�teachers�and�researchers� can�work�collaboratively,�through�systematic�inquiry,�which�generates�reliable�and�trustworthy� findings,�to�challenge�the�current�situation�in�which�mathematics�teaching�perpetuates�inequities� and�injustices�within�society.�It�is�unlikely�that�those�in�positions�of�power�will�embrace�the� findings�of�this�research,�since�their�interests�might�be�better�served�by�maintaining�the�status� 116� � Pete Wright quo.�However,�it�is�hoped�that�those�committed�to�education�as�a�means�of�changing�the�world� for�the�better�might�gain�some�insight�from�the�project’s�findings�into�how�to�go�about�bringing� about�positive�change�in�the�mathematics�classroom. Notes on the contributor Before�joining�the�UCL�Institute�of�Education�as�a�Lecturer�in�Mathematics�Education�in�2011,�Pete�taught� for�15�years�in�comprehensive�schools� in�London,�Newcastle-upon-Tyne,�and�Brighton,� including�three� years�as�Head�of�Mathematics,�and�in�a�rural�school�in�Kenya.�Other�posts�in�education�include�five�years�in� curriculum�development�and�two�years�as�a�local�authority�mathematics�consultant.�His�current�research� interests�include�equity�and�social�justice�in�mathematics�teaching�and�participatory�action�research. References Advisory�Committee�on�Mathematics�Education�(ACME)�(2011)�Mathematical Needs: Summary. London:� ACME. Black,�L.,�Mendick,�H.,�and�Solomon,�Y.�(2009)�Mathematical Relationships in Education: Identities and participation. New�York:�Routledge. Boaler,�J.�(2008)�‘Promoting�“relational�equity”�and�high�mathematics�achievement�through�an�innovative� mixed-ability�approach’.�British Educational Research Journal, 34�(2),�167–94. Boaler,�J.,�Altendorf,�L.,�and�Kent,�G.�(2011)�‘Mathematics�and�science�inequalities�in�the�United�Kingdom:� When�elitism,�sexism�and�culture�collide’.�Oxford Review of Education, 37�(4),�457–84. Boaler,�J.,�and�Green,�J.�(2000)�‘Identity,�agency,�and�knowing�in�mathematics�worlds’.�In�Boaler,�J.�(ed.)�Multiple Perspectives on Mathematics Teaching and Learning. Westport,�CT:�Ablex,�171–200. Bourdieu,�P.�(1998)�Practical Reason. Cambridge:�Polity�Press. Brown,�M.�(1999)�‘One�mathematics�for�all?’�In�Hoyles,�C.,�Morgan�C.,�and�Woodhouse,�G.�(eds)�Rethinking the Mathematics Curriculum. London:�Falmer�Press,�78–89. Brydon-Miller,�M.,�Greenwood,�D.,�and�Maguire,�P.�(2003)�‘Why�action�research?’�Action Research, 1�(1),�9–28. Cockcroft,�W.H.�(1982)�Mathematics Counts: Report of the Committee of Inquiry into the Teaching of Mathematics in Schools under the Chairmanship of W.H. Cockcroft. London:�Her�Majesty’s�Stationery�Office. Cotton,�T.�(2013)�‘Critical�mathematics�education:�From�theory�to�practice’.�In�Coles,�A.,�Barwell,�R.,�Cotton,� T.,�Winter,�J.,�and�Brown,�L.�(eds)�Teaching Secondary Mathematics as if the Planet Matters. Abingdon:� Routledge,�87–97. D’Ambrosio,� U.� (2008)�‘Peace,� social� justice� and� ethnomathematics’.� In� Sriraman,� B.� (ed.)� International Perspectives on Social Justice in Mathematics Education. Charlotte,�NC:�Information�Age�Publishing,�37–50. Fontana,�A.,�and�Frey,�J.H.�(2008)�‘The�interview:�From�neutral�stance�to�political�involvement’.�In�Denzin,� N.K.,�and�Lincoln,�Y.S.�(eds)�Collecting and Interpreting Qualitative Materials. London:�Sage,�115–59. Gibson,�W.J.,�and�Brown,�A.�(2009)�Working with Qualitative Data. London:�Sage. Greater�London�Authority�(GLA)�(2014)�Annual London Education Report 2014. London:�GLA. Gutstein,�E.�(2006)�Reading and Writing the World with Mathematics: Toward a pedagogy for social justice. New� York:�Routledge. Gutstein,�E.,�and�Peterson,�B.�(2005)�Rethinking Mathematics: Teaching social justice by the numbers. Milwaukee,� WI:�Rethinking�Schools�Ltd. Hodgen,� J.,� and� Marks,� R.� (2009)� ‘Mathematical�“ability”� and� identity:�A� sociocultural� perspective� on� assessment�and�selection’.�In�Black,�L.,�Mendick,�H.,�and�Solomon,�Y.�(eds)�Mathematical Relationships in Education: Identities and participation. New�York:�Routledge,�31–42. Jackson,�A.Y.,�and�Mazzei,�L.A.�(2012)�Thinking with Theory in Qualitative Research: Viewing data across multiple perspectives. Abingdon:�Routledge. Jorgensen,� R.,� Gates,� P.,� and� Roper,�V.� (2014)�‘Structural� exclusion� through� school� mathematics:� Using� Bourdieu�to�understand�mathematics�as�a�social�practice’.�Educational Studies in Mathematics, 87�(2),� 221–39. Kvale,�S.,�and�Brinkmann,�S.�(2009)�InterViews: Learning the Craft of Qualitative Research Interviewing. London:� Sage�Publications. London Review of Education� � 117 Lerman,�S.�(2000)�‘The�social�turn�in�mathematics�education�research’.�In�Boaler,�J.�(ed.)�Multiple Perspectives on Mathematics Teaching and Learning. Westport,�CT:�Ablex,�19–44. Lincoln,�Y.S.,�and�Guba,�E.G.�(2003)�‘Paradigmatic�controversies,�contradictions,�and�emerging�confl�uences’.�In� Denzin,�N.K.,�and�Lincoln,�Y.S.�(eds)�The Landscape of Qualitative Research: Theories and issues. Thousand� Oaks,�CA:�Sage,�253–91. Morgan,�C.�(2009)�‘Questioning�the�mathematics�curriculum:�A�discursive�approach’.�In�Black,�L.,�Mendick,� H.,�and�Solomon,�Y.�(eds)�Mathematical Relationships in Education: Identities and participation. New�York:� Routledge,�97–106. Nardi,�E.,�and�Steward,�S.�(2003)�‘Is�mathematics�T.I.R.E.D.?�A�profi�le�of�quiet�disaffection�in�the�secondary� mathematics�classroom’.�British Educational Research Journal, 29�(3),�345–67. National�Centre�for�Excellence�in�Teaching�Mathematics�(NCETM)�(2008)�Mathematics Matters: Final report. London:�NCETM. Noyes,�A.� (2008)�‘Mathematical� marginalisation� and� meritocracy:� Inequity� in� an� English� classroom’.� In� Sriraman,�B.�(ed.)� International Perspectives on Social Justice in Mathematics Education. Charlotte,�NC:� Information�Age�Publishing,�51–68. ––�(2009)�‘Exploring�social�patterns�of�participation�in�university-entrance�level�mathematics�in�England’.� Research in Mathematics Education, 11�(2),�167–83. Offi�ce� for�Standards� in�Education,�Children’s�Services�and�Skills�(Ofsted)�(2012)� Mathematics: Made to measure. Manchester:�Ofsted. Shenton,�A.K.�(2004)�‘Strategies�for�ensuring�trustworthiness�in�qualitative�research�projects’.�Education for Information, 22�(2),�63–75. Skovsmose,�O.�(2011)�An Invitation to Critical Mathematics Education. Rotterdam:�Sense�Publishers. Skovsmose,� O.,� and� Borba,� M.� (2004)�‘Research� methodology� and� critical� mathematics� education’.� In� Valero,�P.,�and�Zevenbergen,�R.�(eds)�Researching the Socio-political Dimensions of Mathematics Education. Dordrecht:�Kluwer�Academic�Publishers,�207–26. Winbourne,�P.�(2009)�‘Choice:�Parents,�teachers,�children�and�ability�grouping�in�mathematics’.�In�Black,�L.,� Mendick,�H.,�and�Solomon,�Y.�(eds)�Mathematical Relationships in Education: Identities and participation. New�York:�Routledge,�58–70. Wolf,�A.�(2002)�Does Education Matter? Myths about education and economic growth. London:�Penguin. Wright,�P.�(2004)�Human Rights in the Curriculum: Mathematics. London:�Amnesty�International�UK. ––�(2012)�‘The�math�wars:�Tensions�in�the�development�of�school�mathematics�curricula’.�For the Learning of Mathematics, 32�(2),�7–13. ––�(2015)�‘Teaching�mathematics�for�social�justice:�Translating�theories�into�practice’�Ph.D.�diss. University� of�Sussex�(Sussex�Research�Online). � Related articles published in the London Review of Education In this issue This�paper�was�published�in�a�special�feature�on�education�in�London,�edited�by�Tamjid�Mujtaba.� The�other�articles�in�the�feature�are�as�follows�(links�unavailable�at�time�of�publication): Brown,�C.,�Taylor,�C.,�and�Ponambalum,�L.�(2016)�‘Using�design-based�research�to�improve�the�lesson�study� approach�to�professional�development�in�Camden�(London)’.�London Review of Education,�14�(2),�4–24. 118� � Pete Wright Cajic-Seigneur,�M.,�and�Hodgson,�A.�(2016)�‘Alternative�educational�provision�in�an�area�of�deprivation�in� London’.�London Review of Education,�14�(2),�25–37. Jerrim,�J.,�and�Wyness,�G.�(2106)�‘Benchmarking�London�in�the�PISA�rankings’.�London Review of Education,� 14�(2),�38–65. Mujtaba,�T.�(2016)�Editorial:�‘Education�in�London:�Challenges�and�opportunities�for�young�people’.�London Review of Education,�14�(2),�1–3.� Mujtaba,�T.,�and�Reiss,�M.� (2016)�‘Girls� in�the�UK�have�similar�reasons�to�boys� for� intending�to�study� mathematics� post-16� thanks� to� the� support� and� encouragement� they� receive’.� London Review of Education,�14�(2),�66–82. Standish,�A.,�Hawley,�D.,�and�Willy,�T.�(2016)�‘The�London�Geography�Alliance:�Re-connecting�the�school� subject�with�the�university�discipline’.�London Review of Education,�14�(2),�83–103. Elsewhere in the journal Duffy,�G.,�and�Elwood,�J.�(2013)�‘The�perspectives�of�‘disengaged’�students�in�the�14–19�phase�on�motivations� and�barriers�to�learning�within�the�contexts�of�institutions�and�classrooms’.�London Review of Education,� 11�(2),�112–26. Golding,� J.� (2015)�‘What� has� the� Coalition� Government� done� for� the� development� of� initial� teacher� education?’.�London Review of Education,�13�(2),�113–24. Lupton,�R.,�and�Thomson,�S.�(2015)�‘Socio-economic�inequalities�in�English�schooling�under�the�Coalition� Government�2010–15’.�London Review of Education,�13�(2),�4–20. Mujtaba,�T.,�Reiss,�M.,�and�Hodgson,�A.�(2014)�‘Motivating�and�supporting�young�people�to�study�mathematics:� A�London�perspective’.�London Review of Education,�12�(1),�121–41. Ngware,�M.W.,�Ciera,�J.,�Abuya,�B.A.,�Oketch,�M.,�and�Mutisya,�M.�(2012)�‘What�explains�gender�gaps�in�maths� achievement�in�primary�schools�in�Kenya?’.�London Review of Education,�10�(1),�55–73. Parameshwaran,�M.,�and�Thomson,�D.�(2015)�‘The�impact�of�accountability�reforms�on�the�Key�Stage�4� curriculum:�How�have�changes�to�school�and�college�Performance�Tables�affected�pupil�access�to� qualifications�and�subjects�in�secondary�schools�in�England?’.�London Review of Education,�13�(2),�157–73. 
work_p34z6tbfj5em3cjmpj7lpxi4pa	----	Theatre of social justice E636 CMAJ | JUNE 8, 2020 | VOLUME 192 | ISSUE 23 © 2020 Joule Inc. or its licensors A s I arrive to interview physician–playwright Jeff Nisker, a woman asks him to please lock up when he leaves; he’s the only one left in the office. His obstetrics–gynecology col­ leagues at London Health Sciences Cen­ tre, in Ontario, moved to another building months ago, but Nisker, whose plays and musicals have been performed at univer­ sities and professional meetings across Canada and in other countries, remains in a cramped office at the end of a deserted corridor. He retired from clinical practice a few years ago, and his teaching duties at Western’s Schulich School of Medicine & Dentistry are on hold while he recovers from prostate cancer, but he’s here in a chair that supports his bad back, writing longhand about how the Cambie Clinic c a s e , t h e n b e i n g h e a r d b e f o r e t h e Supreme Court of British Columbia, will h a r m p o o r a n d d i s a b l e d w o m e n b y expanding private health care. “It’s all social justice work,” he says, sweeping his hand to the pad on his clipboard, the printed pages stacked next to his chair, and articles he’s published in academic journals on a desk nearby. Nisker joined the faculty at Western in the early 1980s as a clinician–scientist, not a writer. But he’s always been a vora­ cious reader, and he credits a scornful teacher in grade nine with giving him a view of fiction as a way to understand the world. On English exams, she told him, “You quote huge chunks of things, but you have no idea what any of it means.” Then she tasked him with discussing spe­ cific novels with her. To Kill a Mockingbird was an early assignment, and Atticus Finch became his hero. He decided to be a human rights lawyer, but his family argued that he had to take up the mantle for relatives murdered in the Holocaust who were physicians, so he went to med­ ical school instead. He attended the Uni­ versity of Toronto, moved to London, O n t a r i o , f o r r e s i d e n c y , t h e n s t a r t e d researching women’s cancers in San Fran­ cisco before returning to Western. He’d lost his mother and grandmother to breast cancer, so when the BRCA test became available to identify women at high risk for breast and ovarian cancer, he was appalled that Ontario and other prov­ inces didn’t offer it. He started writing and speaking on ethics in women’s health and wasn’t surprised when the dean asked him to take over bioethics teaching for the medical school. Certain that narrative was key to an ethics curriculum, he underpinned his classes with stories and movies and added an evening elective called “Monday night narratives,” in which students could read or perform plays. He also wrote scripts and helped students write their own. Soon, half the class was attending the elective, and even those who couldn’t make it knew to con­ tact Nisker if they wanted to work on shows (“promotions, props, costumes, sets, acting, singing, drawing, writing or directing” were on one list alongside his phone number). On a typical Monday night in 1995, students performed scenes from Lisa Loomer’s The Waiting Room, with one taking the part of an 18th­century Chinese woman whose bound feet were necrotic, and another playing a contem­ porary woman whose breast augmenta­ tion may have led to breast cancer. After­ ward, Nisker and a scholar from the nearby Westminster Institute for Ethics and Human Values discussed society’s expectations of physicians.1 As word of his interest in bioethics and theatre spread, he fielded unusual requests. HUMANITIES | PROFILE Theatre of social justice n Cite as: CMAJ 2020 June 8;192:E636­7. doi: 10.1503/cmaj.191438 Playwright Dr. Jeff Nisker brings his passion for social justice to the stage. Sa nd ra D uft on , L on do n H ea lt h Sc ie nc es C en tr e m ed ic al p ho to gr ap he r H U M A N ITIES CMAJ | JUNE 8, 2020 | VOLUME 192 | ISSUE 23 E637 In the mid­1990s, some doctors in emer­ gency departments stigmatized patients they suspected of having AIDS by donning several pairs of gloves. When an AIDS advocate contacted Nisker about it, he said he could dramatize the problem if he met people with AIDS and heard about their experiences. “How else am I going to write the play?” he asked later. AIDS advocates in Vancouver arranged inter­ views in their community, and in 1997, AIDS Vancouver presented Nisker’s play, with a cast of medical students and resi­ dents. He disdains that script today, call­ ing its prose “purple,” but it was his first show for an audience beyond his stu­ dents, and the success fuelled him. The following year, Orchids, his musical about embryo selection and eugenics, premiered at Western’s theatre at Talbot College. Nisker had been studying pre­ implantation genetic diagnosis in the early 1990s, but he’d shut down his research after people called to volunteer for it, hoping it would help them preselect for male children. “You’ve got to take these stands,” he said. Now, he’d returned to the subject of genetic diagnosis, inter­ viewing a physician with Tourette syn­ drome, the heritable tic disorder, and writing a script about two women meeting at an infertility clinic, one who is living a full life with Tourette and one who wants to avoid having a child with Tourette. “It takes some delicious chutzpah to want to create a musical about Tourette and IVF [in vitro fertilization],” said Strat­ f o r d , O n t a r i o – b a s e d p e r f o r m e r L i z a Balkan, who directed the touring version. And Nisker went further: he convinced the Canadian Institutes of Health Research and Health Canada to underwrite the tour, arguing that it would stimulate valu­ a b l e d i s c u s s i o n a s t h e g o v e r n m e n t develop ed regulations for genetic diagno­ sis. “Orchids touched people deeply,” Bal­ kan said. “They would come up after­ wards crying, or stick around to talk about their own personal experiences.” E v e r t h e a c a d e m i c , N i s k e r a n d h i s research team taped and analyzed the after­performance discussions, conclud­ ing that theatre is an essential tool for engaging the public in health policy.2 He applied this truth to another drama that was challenging his abilities. In the 1990s, he met a woman with quadriplegia d u e t o m u l t i p l e s c l e r o s i s . S m o k i n g , swearing and racing around the hospital in an electric wheelchair she operated with her chin, she urged Nisker to write about her, and he interviewed her several times. As they got to know one another, she added him to her list of emergency contacts; he introduced her to his sons and his Monday night students. In Calce- donies, the play he later wrote about her with Balkan as dramaturge, “Friend,” the man in Nisker’s role, discovers “Ruth” wants to write poetry, but she’s been waiting years for her chair’s joystick to be hooked up to her computer. Indignant, “Friend” calls the regional biomedical engineering unit and, in a moving passage of the play, an engineer calls back.3 [Speaks very rapidly] I quickly plead Ruth’s story, insisting that I’m not asking him to see Ruth ahead of someone else, rather to see her after hours, and would be happy to pay him at an overtime rate, and would consider it a personal favour. [Sheepishly] He jumps in before I embarrass myself further with, “Don’t you think that every parent with financial means, whose child has cerebral palsy or a neuromuscular condition, offers to pay me to see their child after hours? They all want their child in computerized education, rather than falling farther and farther behind kids their age. Some parents without the money offer to “beg borrow or steal” to pay me. I stopped returning calls 2 years ago. The only reason I’m returning yours is because you’re a physician. An engineer eventually sees Ruth to take measurements, telling her to be patient until the computer linkage can be com­ pleted, but she dies from an infection before that happens. Nisker and Balkan recruited Sheila Boyd, an actor disabled from birth by spina bifida, to take the part. Dancing and doing the moonwalk with an electric wheelchair donated for use in the show, Boyd left people in tears with her per­ formance at the 2014 meeting of the Canadian Bioethics Society in Vancouver. In Montréal, McGill University students saw a portion of the play, then heard local experts discuss the legal and physical challenges of disability. Boyd would like to do the show in other cities, though Nisker isn’t pushing for that. “I’m not a producer,” he tells me. “I’m not a theatre person.” He points out that he’s primarily a scientist, with more than 200 published papers. Still, he’d like a broader audience for the “Ruth” story, so he turned the script into the novella Patiently Waiting For…,4 which he self­published and sells online and at medical conferences. The book now on Nisker’s clipboard includes tales of other women with difficult and desperate encounters with the health care system. It’s a sunny fall day and he could be out paddling the Thames River in the kayak tied to the roof of his SUV in the hospital parking lot, but he’s eager to complete it and file it as a f a c t u m w i t h t h e S u p r e m e C o u r t o f Canada — as the court hears the Cambie Clinic case. As he put it, “If the Supreme Court justices want to read Patiently Waiting For … , they will get an idea.” Miriam Shuchman MD Toronto, Ont. References 1. Lin C. Yellow brick road bioethics. UWOMJ 1995;65:23. 2. Cox SM, Kazubowski­Houston M, Nisker J. Genet­ ics on stage: public involvement in health policy development on pre­implantation genetic diag­ nosis. Soc Sci Med 2009;68:1472­80. 3. Nisker J. From Calcedonies to Orchids, plays pro- moting humanity in health policy. Toronto: Iguana Books; 2012:72­3. 4. Nisker J. Patiently waiting for ... Toronto: Iguana Books; 2016. This article has been peer reviewed. https://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=19233530&dopt=Abstract 
work_p4orf2t6hzfzhdeh5dss7ecv6q	----	\\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 1 19-MAY-06 14:22 JUSTICE SCALIA AND THE LEGISLATIVE PROCESS JOHN F. MANNING * One could not properly take stock of Justice Scalia’s judicial career thus far without considering how deeply his approach to stat- utory analysis has affected the way in which we, as lawyers, talk and think about the problem of statutory construction. Of course, the prescribed format of a brief tribute necessarily requires some sim- plification of Justice Scalia’s powerful, often uncontroversial, and ultimately quite influential contribution to that complex subject. Nonetheless, I will attempt here at least to offer a sketch of the way his writings have altered the basic rules of engagement in matters of statutory interpretation. When I went to law school twenty-odd years ago, legal academ- ics said very little—and wrote even less—about statutory interpreta- tion as such.1 No course was offered on the subject.2 And in the growing number of courses based on statutes (securities law, envi- ronmental law, and the like), neither professors nor students troub- led themselves terribly much over questions of statutory methodology.3 What judges should do was simply taken for * Professor of Law, Harvard Law School. The author wishes to thank Bradford Clark, Jack Goldsmith, Daryl Levinson, Debra Livingston, and Henry Monaghan for thoughtful comments on an earlier draft. 1. See Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213, 215 (1983) (suggesting that legal academics “are no longer certain that statutory interpretation is a definable subject at all”). 2. See Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241, 242 (1992) (“Although professors pre- sumably hoped that students would pick up skills in interpreting statutes, the gen- eral curricular mood was one of benign neglect, summed up in the notion that we teach so many statutory courses that the students will pick up these skills by osmo- sis.”); Richard A. Posner, Statutory Interpretation—in the Classroom and in the Court- room, 50 U. CHI. L. REV. 800, 801–04 (1983) (lamenting the lack of attention to statutory interpretation in law school curricula). 3. As Judge Posner wrote: [Most law professors in substantive statutory courses] do not feel they have enough time to explore with the class the process by which the legislation is enacted, the political and economic forces that shaped it, or even the meth- ods the courts use to interpret it, as distinct from the particular interpreta- tions that the courts have made. Moreover, such issues are rarely dealt with in casebooks, and what is not in the casebook is unlikely to get into the course in any systematic fashion. 33 \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 2 19-MAY-06 14:22 34 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 62:33 granted. In matters of interpretation, Hart and Sacks reigned su- preme.4 For two generations, the Legal Process teaching materials that they had prepared at the Harvard Law School (but never them- selves published) supplied the dominant framework for under- standing statutory interpretation.5 At the most basic level, those materials instructed judges to treat legislators as “reasonable per- sons pursuing reasonable purposes reasonably.”6 All else flowed from that central idea. Federal judges properly scoured the legisla- tive history for evidence of the background policy impulses and un- derstandings that putatively underlay a statute’s adoption.7 And when the statute’s perceived purpose contradicted the rules embed- ded in the statutory text, federal judges felt at liberty to enforce the spirit rather than the letter of the law.8 Posner, supra note 2, at 802. 4. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). 5. Their Legal Process materials came to be the canonical understanding of statutory interpretation in the post-New Deal period. See, e.g., T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 26–27 (1988) (dis- cussing the influence of Hart and Sacks); William N. Eskridge, Jr. & Philip P. Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. PITT. L. REV. 691, 698–99 (1987) (same). 6. HART & SACKS, supra note 4, at 1378. 7. See, e.g., N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526–27 (1982) (“Al- though the statements of one legislator made during a debate may not be control- ling, Senator Bayh’s remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute’s construction.”) (citations omit- ted); Comm’r v. Estate of Church, 335 U.S. 632, 650 n.11 (1949) (noting the “well- known fact” that legislative history is often “[d]ecisive” in statutory construction). For an interesting article charting the post-New Deal increase in judicial reliance on legislative history, see generally George A. Costello, Average Voting Members and Other “Benign Fictions”: The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 DUKE L.J. 39. 8. See, e.g., Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 452–53 (1989) (concluding that an acquaintance with the Federal Advisory Committee Act’s “pur- poses, as manifested by its legislative history and as recited in . . . the Act, reveals that it cannot have been Congress’ intention” to adopt the conventional import of the word “utilize”); Watt v. Alaska, 451 U.S. 259, 266 (1981) (“The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect.”) (citations omit- ted); Comm’r v. Brown, 380 U.S. 563, 571 (1965) (“Unquestionably the courts, in interpreting a statute, have some ‘scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results . . . or would thwart the obvious purpose of the statute.’ ”) (cita- tions omitted); Int’l Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952) (“That reading of the Act does not, to be sure, take the words . . . in their historic, technical sense. But literalness is no sure \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 3 19-MAY-06 14:22 2006] JUSTICE SCALIA AND THE LEGISLATIVE PROCESS 35 How comfortable it all was. Statutory interpretation allowed judges to impose desirable coherence upon often chaotic legislative outcomes.9 The statute law of the United States was all the more adaptable because a judge could soften a hard edged rule into a more flexible standard when the purposes of the law so required.10 And who could be against coherence and adaptability? Most impor- tantly, if Congress enacted words into law in order to achieve some governmental aim, who could object to reading the statutory lan- guage to achieve its underlying purpose when extrinsic evidence makes that purpose evident?11 Justice Scalia’s work has done much to disrupt this calm con- sensus. So far as I know, Justice Scalia has no abstract, a priori objec- touchstone of legislative purpose. The purpose here is more closely approxi- mated, we believe, by giving the historic phrase a looser, more liberal meaning in the special context of this legislation.”). The Legal Process materials embraced this strong form of purposive interpreta- tion. Although it is true Hart and Sacks admonished judges not to give words “a meaning they will not bear,” HART & SACKS, supra note 4, at 1374, their analysis added that “[t]he meaning of words can almost always be narrowed if the context seems to call for narrowing.” Id. at 1376. Accordingly, their approach surely en- compassed the judicial practice of using purpose to cut back a statute’s semantic breadth. Though less obviously, Hart and Sacks also favored extending a statute’s reach to matters “seemingly within its purpose but not within any accepted mean- ing of its words.” Id. at 1194. While rejecting the idea that such extensions could rest on a reading of the statutory command itself, Hart and Sacks suggested that it may still be “proper for the court to rely upon the policy expressed in the statute in formulating, upon its own responsibility, a parallel ground of decision in the case at bar.” Id. 9. See generally T. Alexander Aleinikoff & Theodore M. Shaw, The Costs of Inco- herence: A Comment on Plain Meaning, West Virginia University Hospitals, Inc. v. Casey, and Due Process of Statutory Interpretation, 45 VAND. L. REV. 687 (1992) (ex- plaining the way purposive interpretation produces greater policy coherence and even-handedness of application). 10. Cf. William N. Eskridge, Jr., Spinning Legislative Supremacy, 78 GEO. L.J. 319, 327–30 (1989) (demonstrating the way purposive interpretation of directives makes them more adaptable to unforeseeable conditions arising in application). 11. The premise that all statutes are enacted to effect some underlying aim has long served as the guiding principle of purposivism. Hart and Sacks wrote that “[t]he idea of a statute without an intelligible purpose is foreign to the idea of law and inadmissible.” HART & SACKS, supra note 4, at 1124; see also Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 HARV. L. REV. 370, 370 (1947) (noting that some “purpose lies behind all intelligible legislation”); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 538–39 (1947) (“Legislation has an aim; it seeks to obviate some mischief, to sup- ply an inadequacy, to effect a change of policy, to formulate a plan of government.”). \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 4 19-MAY-06 14:22 36 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 62:33 tion to coherence and adaptability.12 But through his judicial opinions and academic writings, he has argued that those values, so emphasized by the earlier generation, came at a considerable cost to democracy—or, more precisely, democracy as filtered through the processes that our Constitution prescribes for reducing policy impulses into binding law. Justice Scalia has emphasized that legislation proceeds through an intricate, constitutionally prescribed process that has implica- tions for statutory interpretation. “We are governed,” he said, “by laws, not by the intentions of legislators . . . . ‘The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.’ ”13 That is to say, Article I, § 7 of the Constitution prescribes a rather specific method of enacting laws (bicameralism and presentment), and the ultimate output of that process is an agreed-upon set of words that possess a singular claim to legitimacy, at least when their semantic import is clear. As 12. Indeed, when a statute is ambiguous, Justice Scalia is very much for read- ing it in a way that coheres with related laws. See, e.g., W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) (Scalia, J.) (“Where a statutory term presented to us for the first time is ambiguous, we construe it to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law.”); United States v. Fausto, 484 U.S. 439, 453 (1988) (Scalia, J.) (describing the “classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in combination”). Textualist judges like Justice Scalia would resolve ambiguity in that way “not because that precise accommodative meaning is what the lawmakers must have had in mind . . . but because it is [the judiciary’s] role to make sense rather than nonsense out of the corpus juris.” W. Va. Univ. Hosps., 499 U.S. at 100–01. As far as adaptability is concerned, Justice Scalia has suggested that in choos- ing among reasonably available understandings of an ambiguous statute, courts may have room to adapt the law to capture its apparent background purposes. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515 [hereinafter Scalia, Judicial Deference] (“To begin with, it seems to me that the ‘traditional tools of statutory construction’ include . . . the consideration of policy consequences. Indeed, that tool is so traditional that it has been en- shrined in Latin: ‘Ratio est legis anima; mutata legis ratione mutatur et lex.’ (‘The rea- son for the law is its soul; when the reason for the law changes, the law changes as well.’)”). Of course, he has also suggested that while textualists are not “too hide- bound to realize that new times require new laws,” they must leave the adaptation to the legislature rather than allowing judges to “write those new laws” through aggressive interpretation. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 23 (Amy Gutmann ed., 1997) [hereinafter Scalia, Common-Law Courts]. 13. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1844)) (emphasis omitted). \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 5 19-MAY-06 14:22 2006] JUSTICE SCALIA AND THE LEGISLATIVE PROCESS 37 Justice Scalia has put it, the enacted text always trumps “unenacted legislative intent.”14 Of course, to say that one should just follow the clear import of the enacted text seemingly puts textualists like Justice Scalia at odds with the conventional (linguistic) wisdom that human beings some- times articulate their thoughts imprecisely and, therefore, that lis- teners can sometimes get a better idea of what a speaker is truly driving at if they do not take his or her words at face value when they do not make sense in some meaningful way.15 By the same token, then, why not assume that a legislature has simply expressed itself poorly or failed to focus carefully on an embedded detail when it adopts a statute that is badly out of sync with its apparent purposes?16 For Justice Scalia, the linguist’s insights about the way individuals communicate do not sensibly translate to the setting of federal legislative authority, which consists of multiple humans in 14. INS v. Cardoza-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J., concurring). In a recent article, I have argued that textualists speak somewhat imprecisely when they cast their approach as one that favors the enacted text over unenacted ex- tratextual materials. See John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70 (2006). Instead, I argue that textualists understand that all texts have meaning only in context, and that they prefer to resolve latent ambigui- ties in a statutory text by consulting the semantic context—evidence of the way a reasonable person would use the enacted words in context. See id. at 92–94. More- over, when the semantic evidence is clear, textualists give it precedence over policy context—evidence about the way a reasonable person would address the mischief at which the statute is directed. See id. at 92–93. Ultimately, this proposed change in emphasis may itself be a matter of semantics. See id. at 77, 95. For whether one frames the question as text versus purpose or semantic versus policy context, the basic premise underlying textualism remains constant: Viewing the difference in approaches as a choice between competing elements of context, textualists might still properly emphasize that giving precedence to the clear semantic detail of a statutory text offers the only reliable assurance that legislators will have the tools to enable them to strike predictable bargains in the legislative process. See id. at 103–05. That is, if legislators with the power to insist upon compromise wish to strike a bargain about the contours of the policy they find acceptable, the only way they can do so is by agreeing upon language that frames that policy at an appropri- ate level of generality. 15. See PAUL GRICE, STUDIES IN THE WAY OF WORDS 26–31 (1989) (laying out a framework of conversational interpretation); see also RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 268 (1990) (discussing the problem of miscommuni- cation in private speech); Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616, 625 (1949) (same); Gerald C. Mac Callum, Jr., Legislative Intent, 75 YALE L.J. 754, 771–72 (1966) (same). 16. See generally Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV. 1179, 1182 (showing “that the maxims of statutory interpretation can be viewed as instances of Grice’s general framework of [conversational] inter- pretation”); M.B.W. Sinclair, Law and Language: The Role of Pragmatics in Statutory Interpretation, 46 U. PITT. L. REV. 373 (1985) (same). \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 6 19-MAY-06 14:22 38 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 62:33 three distinct institutions (the House, the Senate, and the Presi- dency) bargaining in complex and often unknowable ways over a statute’s wording. When an individual makes a statement whose or- dinary meaning is inexplicably at odds with his or her obvious pur- pose, we may give that person the benefit of the doubt by assuming that (absent knowledge of personal idiosyncrasy) a slip of the tongue, a failure of foresight, or a poor choice of words has oc- curred. When, however, Congress adopts a seemingly awkward stat- ute (one that fits poorly with its apparent purpose), the odd contours of the resulting text may also reflect behind-the-scenes leg- islative compromise—a factor that could easily produce a less-than- ideally-coherent outcome because of the felt need to split the differ- ence among contradictory policy impulses or even to accommodate unrelated policy objectives in order to secure the assent of legisla- tive actors with bargaining power. In fact, the whole flavor of the legislative process suggests the centrality of compromise.17 By dividing power among three com- peting institutions that answer to distinctively configured constitu- encies, the bicameralism and presentment requirements of Article I, § 7 effectively create a supermajority requirement for legisla- tion.18 This feature, in turn, gives political minorities extraordinary power to block legislation or to insist upon compromise as the price of assent.19 The legislatively adopted rules of procedure for each House reinforce this reality. Among other things, bills must clear all of the relevant gatekeeping committees, find time on the floor of each House, and survive the threat of a filibuster in the Senate;20 17. The following discussion builds on John F. Manning, The Absurdity Doc- trine, 116 HARV. L. REV. 2387, 2408–19 (2003). 18. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 233–48 (1962) (explaining the way bicameralism results in supermajority requirements). 19. See Manning, supra note 17, at 2437–38; John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 74–78 (2001). 20. As Professors Shepsle and Weingast thus note: The Rules Committee in the House may refuse to grant a rule for a committee bill, thereby scuttling it. The Speaker may use his power to schedule legisla- tion and to control debate in ways detrimental to the prospects of a commit- tee bill. A small group of senators in the U.S. Senate may engage in filibuster and other forms of obstruction. Any individual senator may refuse unani- mous consent to procedures that would expedite passage of a committee bill. In short, veto groups are pervasive in legislatures . . . . Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 AM. POL. SCI. REV. 85, 89 (1987). Although these precise procedural considerations are implicit in Justice Scalia’s textualism, their link to textualism is more explicitly laid out in the work of his intellectual fellow traveler, Judge Easter- \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 7 19-MAY-06 14:22 2006] JUSTICE SCALIA AND THE LEGISLATIVE PROCESS 39 in other words, there are many ways for a bill to die—and thus many opportunities for legislative stakeholders to insist upon com- promise as a condition of its survival. It is hardly surprising, there- fore, that a bill might not be coherent with its apparent purpose, even in the absence of some policy miscalculation or imprecision in expression by the legislature. The possibility of unseen compromise makes it quite difficult to presume that seemingly over- or under-inclusive rules embedded in a statutory text have inadvertently fallen short of some identifiable and coherent background purpose. As Justice Scalia has argued, with much influence, Congress has no meaningful purpose in the abstract; the only purpose that counts is what the legislators are able to reduce to words through the highly complicated legislative process.21 Legislators routinely disagree—and thus compromise— not only about ends but also about means, which represent the price that they are willing to pay for the ends they wish to achieve. And when judges emphasize apparent background legislative policy (however sound) at the expense of a clear statutory text, they ig- nore the reality that the statute’s final wording “may, for all we know, have slighted policy concerns on one or the other side of the issue as part of the legislative compromise that enabled the law to be enacted.”22 Accordingly, Justice Scalia maintains that “[d]eduction from the ‘broad purpose’ of a statute begs the question if it is used to decide by what means (and hence to what length) Congress pursued that purpose; to get the right answer to that question there is no substitute for the hard job . . . of reading the whole text.”23 Or as he wrote for the Court: brook. See, e.g., Frank H. Easterbrook, The Role of Original Intent in Statutory Con- struction, 11 HARV. J.L. & PUB. POL’Y 59, 64 (1988); Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 547–48 (1983). 21. E. Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 68–69 (2000) (Scalia, J., concurring) (“The final form of a statute . . . is often the result of compromise among various interest groups, resulting in a decision to go so far and no farther.”). In academic writing, Justice Scalia has underscored his doubts concerning the utility and relevance of legislative intent—at least, as dis- tinct from the meaning expressed by the conventional understanding of the en- acted text. See, e.g., Scalia, Judicial Deference, supra note 12, at 517 (observing that “the quest for the ‘genuine’ legislative intent is probably a wild-goose chase”); Scalia, Common-Law Courts, supra note 12, at 32 (suggesting that “with respect to 99.99 percent of the issues of construction reaching the courts, there is no legisla- tive intent”). 22. Artuz v. Bennett, 531 U.S. 4, 10 (2000) (Scalia, J.). 23. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 726 (1995) (Scalia, J., dissenting). \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 8 19-MAY-06 14:22 40 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 62:33 The best evidence of [a statute’s] purpose is the statutory text adopted by both Houses of Congress and submitted to the President. Where that contains a phrase that is unambigu- ous—that has a clearly accepted meaning in both legislative and judicial practice—we do not permit it to be expanded or contracted by the statements of individual legislators or com- mittees during the course of the enactment process.24 Judges, in other words, “are bound, not only by the ultimate pur- poses Congress has selected, but by the means it has deemed appro- priate, and prescribed, for the pursuit of those purposes.”25 Certainly, there are important counter-arguments that merit fuller treatment than a brief essay permits. Among other things, one could question whether it is realistic to think that most legisla- tors care about the semantic detail, rather than broad policy con- tours, of the legislation for which they vote.26 Nonetheless, if one accepts the centrality of compromise, then proceeding from the as- sumption that a statute means what it says—even when it is a bit odd—offers the only means of assuring that when legislators with the requisite bargaining power do assent upon limited terms, the resulting limits will be respected by those charged with implement- ing the statute.27 While this is not the occasion to adjudicate such disputes, the important point, for present purposes, is this: The Court now approaches the problem of interpretation with the ever present possibility of awkward compromise at the forefront of its frame of reference.28 That is itself a significant change. In the “old days,” the Court was prone to emphasize its author- ity to depart from the clear import of the statutory text when it produced an “unreasonable” result, one that to the Court seemed “plainly at variance with the policy of the statute as a whole.”29 And the Justices held in ready reserve the “familiar rule” that “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its mak- 24. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98–99 (1991) (Scalia, J.) (citation omitted). 25. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 n.4 (1994) (Scalia, J.). 26. For a particularly cogent articulation of this point, see Max Radin, A Short Way with Statutes, 56 HARV. L. REV. 388, 400 (1942), which argues that the “definite written words” of a statute “have been selected . . . primarily to let us know the statutory purpose.” 27. See Manning, supra note 14, at 103–05. 28. See infra note 35. 29. United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940). \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 9 19-MAY-06 14:22 2006] JUSTICE SCALIA AND THE LEGISLATIVE PROCESS 41 ers.”30 Today, things are different. The Court is, instead, apt to explain that “the reach of a statute often exceeds the precise evil to be eliminated” and that “it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy—even assuming that it is possi- ble to identify that evil from something other than the text of the statute itself.”31 Or it is likely to note that “it is ultimately the provi- sions of our laws rather than the principal concerns of our legisla- tors by which we are governed.”32 That is, the Court now acts on the apparent assumption that legislation typically entails the deli- cate crafting of a compromise—and that courts risk disturbing such compromise when, in the name of abstract purpose, they deviate from clearly expressed statutory wording that has emerged from the complex, path-dependent, and in many ways quite opaque process of legislative negotiation and compromise.33 Perhaps no one is more responsible for this change in judicial focus than is Justice Scalia.34 His effect on judicial behavior has been palpable.35 But even more impressive is the fact that students 30. Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892). 31. Brogan v. United States, 522 U.S. 398, 403 (1998) (Scalia, J.). 32. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998) (Scalia, J.). 33. As the Court recently emphasized: [N]egotiations surrounding enactment of this bill tell a typical story of legisla- tive battle among interest groups, Congress, and the President . . . . As such, a change in any individual provision could have unraveled the whole. It is quite possible that a [different] bill . . . would not have survived the legislative pro- cess. The deals brokered during a Committee markup, on the floor of the two Houses, during a joint House and Senate Conference, or in negotiations with the President . . . are not for us to judge or second-guess. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002). 34. See William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509, 1513 (1998) (noting that while textualism “is treated skeptically and often dismissively by Scalia’s colleagues on the Court,” it nonetheless “influences the way all the other justices write their opinions and advocates argue their cases before the Supreme Court”); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 656 (1990) (noting Justice Scalia’s influence on the way the Court interprets statutes); Thomas W. Merrill, Textualism and the Future of the Chev- ron Doctrine, 72 WASH. U. L.Q. 351, 351, 363–66 (1994) (considering ways in which Justice Scalia’s “unyielding stance” on the appropriate interpretive method, among other factors, may have altered the Court’s internal dynamic in statutory interpre- tation cases). 35. The influence of his text-based approach is evident in the emphasis of numerous recent decisions. See, e.g., Cooper Indus. v. Aviall Servs., 543 U.S. 157, 167 (2004) (Thomas, J.) (“Given the clear meaning of the text, there is no need to resolve this dispute or to consult the purpose of CERCLA at all.”); Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93–94 (2002) (Kennedy, J.) (“Like any key term in an important piece of legislation, the [relevant] figure was the result of \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 10 19-MAY-06 14:22 42 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 62:33 compromise between groups with marked but divergent interests in the contested provision . . . . Courts and agencies must respect and give effect to these sorts of compromises.”). Even nontextualist judges have embraced concerns about com- promise. See, e.g., Bates v. United States, 522 U.S. 23, 29 (1997) (Ginsburg, J.) (“The text of §1097(a) does not include an ‘intent to defraud’ state of mind re- quirement, and we ordinarily resist reading words or elements into a statute that do not appear on its face.”); Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) (Rehnquist, C.J.) (“[T]he fact that [the Racketeer Influenced and Cor- rupt Organizations Act] has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” (alteration in original) (citation and internal quotation marks omitted)); Landgraf v. USI Film Prods., 511 U.S. 244, 286 (1994) (Stevens, J.) (“Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting means other than those that would most effectively pursue the main goal.”); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646–47 (1990) (Blackmun, J.) (“ ‘[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than ef- fectuates legislative intent simplistically to assume that whatever furthers the stat- ute’s primary objective must be the law.’ ” (alteration in original) (quoting Rodriguez v. United States, 480 U.S. 522, 525–26 (1987))); Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1989) (O’Connor, J.) (“Giving full effect to the words of the statute preserves the compromise struck by Congress.”); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 748 n.14 (1989) (Marshall, J.) (“Strict adher- ence to the language and structure of the Act is particularly appropriate where, as here, a statute is the result of a series of carefully crafted compromises.”). This Court, of course, has not been fully consistent in its new emphasis. On rare occasion, the modern Court still invokes the traditional form of strongly pur- posive interpretation. See, e.g., Johnson v. United States, 529 U.S. 694, 706 n.9 (2000) (Souter, J.) (“[I]n relying on an uncommon sense of the word, we are departing from the rule of construction that prefers ordinary meaning. But this is exactly what ought to happen when the ordinary meaning fails to fit the text and when the realization of clear congressional policy (here, favoring the ability to impose supervised release) is in tension with the result that customary interpretive rules would deliver.” (citations omitted)); Clinton v. City of New York, 524 U.S. 417, 428–29 (1998) (Stevens, J.) (broadening an expedited review provision be- cause the literal meaning undermined the statutory purpose to provide “a prompt and authoritative judicial determination of the constitutionality of the Act”); Lewis v. United States, 523 U.S. 155, 160 (1998) (Breyer, J.) (refusing to enforce a stat- ute’s conventional meaning when “a literal reading of the words . . . would dramat- ically separate the statute from its intended purpose”). As Professor Meltzer has noted, moreover, the Court’s approach to implied federal preemption of state law reflects premises more akin to those practiced by traditional purposivists. See Daniel J. Meltzer, The Supreme Court’s Judicial Passivity, 2002 SUP. CT. REV. 343, 364–68 (arguing that contrary to its default approach to statutory interpretation, the Court engages in significant interpretive lawmaking in implied preemption cases). Nonetheless, it is safe to conclude that the Rehnquist Court’s general ap- proach to statutory interpretation became considerably more textually oriented than in the past. See, e.g., Merrill, supra note 34, at 356–63 (discussing the Rehn- quist Court’s shift toward textualism); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. CT. REV. 429, 444–45 (same); Samuel A. \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 11 19-MAY-06 14:22 2006] JUSTICE SCALIA AND THE LEGISLATIVE PROCESS 43 are beginning to internalize these lessons in much the same way that my generation internalized the lessons of Hart and Sacks. When I recently told the students in my legislation seminar at Harvard that judges used to prefer the spirit over the letter of the law, they looked at me the way, I expect, my young daughters will look at me when I someday tell them that we did not have cell phones when I was growing up. That change in attitude, I submit, is largely because of Justice Scalia. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227, 252–60 (1999) (noting the Court’s increasing reliance on dictionaries). \\server05\productn\N\NYS\62-1\NYS106.txt unknown Seq: 12 19-MAY-06 14:22 44 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 62:33 
work_p5qnyrx2zzg3phg3lm7ot52y5i	----	Microsoft Word - succesful revolution.docx A Successful Revolution in Youth Justice Revisited By Daniel McCarthy, Lecturer in Criminology, University of Surrey Daniel McCarthy analyses the current context of reductions in the size and scale of the youth justice system in England and Wales Since 2008 there has been a marked reduction in the size and scale of the Youth Justice system in England and Wales. Falls in the numbers of young people held in custody, receiving community penalties, entering the youth justice system, among a host of other changes have all taken place. One of the interesting features of these reductions is that they have taken place happened in the context of a Conservative-majority Coalition government – a political party most known for its tough on crime stance towards young offenders. This scenario is however a familiar one. Going back to the early 1980s – a period characterised by Jones (1984) as a ‘successful revolution’ in youth justice, a similar set of changes were also taking place. These changes again occurred within the context of a Conservative government in power, with a similar social and political landscape consisting of fragile economic situations and recession, instances of civil unrest in the form of rioting, and cuts to public services. In what follows, these comparisons between the 1980s and contemporary period of youth justice will be unpacked, drawing out some of the overall explanations and conclusions regarding the associations between the Conservative government and reductions in the size and scale of youth justice. The 1980s Context During the 1979 general election and the subsequent rise of Thatcher as prime minister, one of the ingredients of the Conservative Party’s successful campaign was their tough law and order response. Home Secretary William Whitelaw and his ‘short sharp shock’ catchphrase advocated an authoritarian stance towards young offenders. Yet, despite this punitive rhetoric, the numbers of young people convicted or cautioned, being sent to custody, as well as receiving other court disposals were all significantly reduced during the 1980s. For 14-17 year old males, falls in the numbers sent to custody (from 6,900 in 1979 to 1,900 in 1989) and in the total number of young persons sentenced (from 56,300 in 1979 to 20,100 in 1989) (Home Office, 1989). Encapsulating the time period was the focus on diversion and decarceration, in addition to minimal intervention at most stages of the system. This included an increase in police cautions, multi-agency working to prevent youth crime, as well as a clear policy of bifurcation in operation which delivered tougher penalties for a smaller group of serious and persistent young offenders, but for more minor young offenders employed cautions and similar diversionary responses. There are several explanations for these reductions during the 1980s period. The Criminal Justice Act 1982 placed limits on judicial discretion regarding the use of custody and encouraged greater use of penal alternatives. Rutherford (2002) further argues that the 1982 Act and the more general law and order climate was reflected through the mildly tolerant attitudes of Home Secretaries Leon Brittan (1983-85) and Douglas Hurd (1986-89), especially when compared to subsequent Home Secretaries Kenneth Clarke (1992-93) and particularly Michael Howard (1993-97) who implemented a much tougher range of policies during their terms of office. A further explanation for these responses to youth justice during the 1980s concerns political distraction, where events including the Falklands War, the miners’ strike, poll tax, and rising unemployment levels were by far the big electoral issues of the time, with youth crime comparably low as a political priority. Finally, the economic downturn of the mid-late 1970s meant that Thatcher’s first term as Prime Minister was subject to considerable curtailments on public spending, where youth justice featured as one such area where minimal financial resources were deployed. The Tail End of Labour to the Coalition From 1992 through to 2007, the size and scale of the youth justice system increased considerably – the reasons behind which have been subject to extensive discussion elsewhere (Goldson, 2000). From 2008 however the size and scale of youth justice began to reduce towards the end of the New Labour reign, which has since transitioned into the Coalition government’s tenure. Significant reductions have been observed in terms of the number of first time entrants (27,854 in 2012/3 – compared to 79,260 in 2008/9), police arrests for notifiable offences (167,995 in 2012/3 – compared to 273,041 in 2008/9) and rates of custody (average of 1,544 10-17 year olds in prison in 2012/3 compared to 2,881 in 2008/9) – to name just a few indicators (see also Ministry of Justice, 2014). Like the 1980s period, there is also evidence of a bifurcation strategy in operation – a policy which served to divert away from formal sanctions those offenders involved in low-level crimes, compared to a response which focuses more on serious and persistent young offenders (HM Treasury, 2011). Young people entering the YJS, although far fewer in overall numbers have higher numbers of previous offences committed, as well as greater levels of re-offending following disposals (Ministry of Justice, 2014: 26). This suggests a shift in emphasis towards a small core group of persistent young offenders, as opposed to the more enlarged interventionist policy which concentrated on low-level offenders which featured as a key part of the New Labour youth justice agenda. Cuts to a range of public services including YOTs and the police have forced a reconsideration of service provision, where a minimal-interventionist policy with regards young people involved in low-level offending – a policy certainly informed by the need to cut costs. For YOTs and the police, a renewed emphasis on diversion as illustrated by the growing use of restorative interventions which establish an informal response to deal with low-level youth offending has had a key role in reducing the numbers of young people processed through the YJS, in addition to the removal of police and court targets for ‘offences brought to justice’ – resulting in fewer police arrests and less of a need to process young people following arrest. So too have there been some changes in sentencing practices, with judges sentencing fewer young people to custody, with recent guidelines emphasising custody as a last resort. Although YOTs deserve some credit for these reductions, such as through their growing use of restorative interventions, there is little evidence of a discernable policy shift compared to the period prior to the reductions during the start of the New Labour tenure in 1997. Making sense of the reductions The key lesson from these two periods is that the political ideology of the ruling government explains little about the reductions in youth justice. Marked by the absence of any clear benevolent or abolitionist thrust to these reductions in youth justice both in the 1980s and current context, the most plausible factor responsible for these cuts is the climate of austerity with cost effectiveness and corporatist efficiency appearing to characterise the main rationales for change. Like the 1980s, the Coalition government has ruled in the aftermath of a significantly dented economy, where cuts to public services and industry have been made, and welfare policies established which have negatively impacted the lives of the poor and socially marginalised. Yet these political conditions have not yet led to any discernable increases in crime (so far the opposite) or indeed any identifiable backlash against these reductions in youth justice – the only obvious exception being the state reactions to the English riots which were highly draconian in punishing those involved in these incidents, but not marked by a continued and more systemic adoption of these punitive practices within the YJS and beyond. Despite some positive aspects of these two periods of youth justice, there are some cautionary notes worth expressing. One is that following the 1980s ‘successful revolution’ in youth justice, a major policy U-turn occurred during the early 1990s which persisted throughout the majority of the New Labour tenure after. The murder of James Bulger played a key part in this punitive shift, as did the competition for tough on crime policies during the late 1990s where the New Labour government launched one of the toughest youth crime manifestos ever witnessed. It is therefore important to consider youth crime and justice as a politically volatile area which can change quickly, especially where the relative stability of other areas of public policy, not least the health service and economy, may lead to a re-emergence of a tough youth crime response from campaigning political parties. The current Home Secretary Theresa May has focused the bulk of her tenure on matters of policing and immigration, and not youth justice which may signal some positives in the run up to the general elections in 2015. Chris Grayling, the Secretary of State for Justice by contrast has recently announced proposals to build a ‘super prison’ for children despite what seems to be limited evidence behind such a measure, and perhaps a more alarming indication of his attempts to shore up public concern towards youth justice. Finally, regardless of these noted reductions, the adult justice system does not correspond with these changes where prison populations continue to rise alongside community penalties and other court disposals (besides reductions in the numbers of police arrests and overall levels of crime). We should therefore reserve optimism regarding the claim that the case of youth justice illuminates a broader pattern of change in England and Wales, but cautiously celebrate the current climate of youth justice, especially when compared to its recent past. References Goldson, B (2000) (ed) The New Youth Justice, London: Sage Her Majesty’s Treasury (2011) Treasury Minutes: Government responses on the Nineteenth to the Twenty First and the Twenty Third to the Twenty Seventh Reports from the Committee of Public Accounts: Session 2010-11, London, HM Treasury Office Home Office (1989) Criminal Statistics for England and Wales, London: HMSO Jones, D (1984) Questioning the New Orthodoxy, Community Care, 11 October Ministry of Justice (2014) Youth Justice Statistics 2012/3, London: Ministry of Justice Rutherford, A. (2002) Youth Justice and Social Inclusion, Youth Justice, 2(2), 100-107 Author Note Dr Daniel McCarthy is Lecturer in Criminology at the University of Surrey. 
work_pb6vodgoh5epvcrx37bkbtcxxu	----	Education, Distributive Justice and Adverse Selection | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1016/S0047-2727(01)00132-3 Corpus ID: 18560804Education, Distributive Justice and Adverse Selection @article{Fleurbaey2002EducationDJ, title={Education, Distributive Justice and Adverse Selection}, author={M. Fleurbaey and Robert J. Gary-Bobo and Denis Maguain}, journal={CEPR Discussion Paper Series}, year={2002} } M. Fleurbaey, Robert J. Gary-Bobo, Denis Maguain Published 2002 Economics CEPR Discussion Paper Series We consider a model of education planning in an economy in which agents differ in their costs of acquiring education. The agents' cost parameter, called "talent," is not observed. The Principal is endowed with a fixed sum of money, with which two types of transfer can be made: in cash and in kind. The Principal can finance transfers in kind, called "help," by means of schooling expenditures, which reduce the agent's education cost. The Principal seeks to maximize a social welfare function which… Expand View on SSRN doi.org Save to Library Create Alert Cite Launch Research Feed Share This Paper 19 CitationsHighly Influential Citations 3 Background Citations 7 Methods Citations 2 Results Citations 1 View All 19 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Education, efficacité économique et justice sociale : une approche rawlsienne Robert J. Gary-Bobo Economics 2006 2 Save Alert Research Feed Education vs. Optimal Taxation: The Cost of Equalizing Opportunities E. Stephens Economics 2008 PDF Save Alert Research Feed Optimal nonlinear taxation of income and education expenditures J. Guo, Alan Krause Economics 2013 13 PDF Save Alert Research Feed Education policies and optimal taxation D. Maldonado Economics 2008 41 Save Alert Research Feed Education Inequality among Different Social Groups Kaname Miyagishima Economics 2016 3 Highly Influenced PDF View 8 excerpts, cites results, methods and background Save Alert Research Feed Optimal Student Loans and Graduate Tax Under Moral Hazard and Adverse Selection Robert J. Gary-Bobo, A. Trannoy Economics 2013 25 PDF View 1 excerpt Save Alert Research Feed G-COE GLOPE II Working Paper Series Education Inequality among Different Social Groups Kaname Miyagishima 2012 Highly Influenced PDF View 5 excerpts, cites background and methods Save Alert Research Feed Teach a Man to Fish? Education vs. Optimal Taxation E. Stephens Economics 2012 PDF View 1 excerpt, cites background Save Alert Research Feed Optimal Income Taxation and the Labour Market: An Overview R. Boadway, J. Tremblay Economics 2013 9 PDF Save Alert Research Feed Should Educational Policies Be Regressive Daniel Gottlieb, Humberto Moreira Economics 2004 5 Highly Influenced PDF View 5 excerpts, cites background Save Alert Research Feed ... 1 2 ... References SHOWING 1-10 OF 61 REFERENCES SORT BYRelevance Most Influenced Papers Recency The Design of Optimal Education Policies G. Fraja Economics 2002 121 View 2 excerpts, references background Save Alert Research Feed On the optimal income taxation and educational decisions M. Tuomala Economics 1986 29 View 1 excerpt, references background Save Alert Research Feed On Education and Distribution P. Hare, D. Ulph Economics Journal of Political Economy 1979 82 PDF View 1 excerpt, references background Save Alert Research Feed Income Distribution, Communities and the Quality of Public Education: A Policy Analysis R. Fernández, R. Rogerson Economics 1992 49 PDF Save Alert Research Feed The Design of Income Maintenance Programmes Timothy Besley, Stephen Coate Economics 1995 157 Highly Influential View 3 excerpts, references background Save Alert Research Feed An Exploration in the Theory of Optimum Income Taxation J. Mirrlees Economics 1971 3,857 PDF Save Alert Research Feed Cash versus Kind, Self-selection, and Efficient Transfers C. Blackorby, D. Donaldson Economics 1988 305 View 1 excerpt, references background Save Alert Research Feed Equity and Efficiency in Human Capital Investment: The Local Connection R. Bénabou Economics 1996 709 Highly Influential View 5 excerpts, references background Save Alert Research Feed Equality, complementarity and the incidence of public expenditures M. Bruno Economics 1976 29 View 1 excerpt, references background Save Alert Research Feed Income Distribution, Communities, and the Quality of Public Education R. Fernández, R. Rogerson Economics 1996 483 View 2 excerpts, references background Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract 19 Citations 61 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_pehhp6wdyjdothmvsy4tr3orty	----	MESTIZA SPIRITUALITY: COMMUNITY, RITUAL, AND JUSTICE JEANETTE RODRIGUEZ [The author explores the wealth and complexity that mestiza con- sciousness and spirituality contribute to the theological enterprise. The mestiza consciousness is grounded in community and pro- moted through ritual. A sense of justice is passed on through this communal spirituality that acknowledges the diversity of creation and its constant process of becoming. Latina culture, religion, and spirituality are so integrated that to try to define spirituality sepa- rated from culture would be a false dichotomy and would do a disservice to the Latino community.] MESTIZA SPIRITUALITY is a spirituality that creates a new borderlandspace filled with a new meaning of self-in-community which bridges and balances two or more opposing worlds. It further manifests itself in the synthesis and reinforcement of regional popular religious practices and liturgical celebrations. Within this article, I seek to explore an understand- ing of mestiza spirituality and its relationship to ritual, community, and justice. I use the concept of an “oppositional consciousness” to shed light on the mestiza’s dynamic and continuing process of navigation and negotia- tion between two and often multiple worldviews. By worldview I am re- ferring to the U.S. dominated culture and a variety of Latino/a ethnicities.1 Critical to understanding the mestiza’s worldview is oppositional con- sciousness that includes the access and filtering of a myriad of values, thoughts, feelings, and understandings. Fundamental to this mestiza con- sciousness is a spirituality harnessed by conquest, marginalization, and resistance. These factors are galvanized by the mestiza’s borderland fac- ultad that strategizes, translates, navigates, and bridges the self-in- JEANETTE RODRIGUEZ received her doctorate from the Graduate Theological Union in Berkeley. She is currently professor in the department of theology and religious studies at Seattle University, and serves as the director of the Center for the Study of Justice in Society. Since publishing her Our Lady of Guadalupe (Uni- versity of Texas, 1994), she has produced numerous articles in collected works on Latina spirituality and popular Catholicism. Her recent research has brought her to Chiapas to study its indigenous church. 1 In this article I concentrate on Latinas as I witness a proactive phenomenon in U.S. society: Latinas creating a space, language, and rituals that display a way of being Latina Catholic. Theological Studies 65 (2004) 317 community by means of forging a conjunctive, differential oppositional consciousness, and a tactical subjectivity. This subjectivity negotiates its survival, engages in shifting identities, becomes flexible and mobile, seeks to deconstruct binaries, develops solidarity and affinities, and allows con- tradictions in order to subvert these contradictions and dissolve them. Mestiza spirituality is a spirituality of conjunctive, differential oppositional consciousness that recognizes that “the experience of daily indignity at the hands of the dominant group” calls attention to a litany of injustices in a system of domination, exploitation, and oppression. These structures of oppression by the dominant group create an oppositional consciousness in subordinate groups that, in extreme cases, turns anger into hatred and these hatreds (racial, class, gender, etc.) in turn perpetuate other hatreds that lead to violence, intolerance, and separatism. Mestiza spirituality rec- ognizes the ethical pitfalls and moral dilemmas caused by these hatreds, and counters them by subverting these contradictions through a “praxis of love” (Chela Sandoval), non-violent actions, and by taking seriously the Christian ethical command to “love thy enemy,” and not by dehumanizing or destroying the oppressor, but by transforming the oppressor and the structures of oppression through an ethical praxis of love. When one reflects on the next generation (18 to 35-year-old) of U.S. Roman Catholic Latinas, one finds a population of women searching and experimenting but still grounded in traditional values within this vida loca. La vida loca is an expression that historically refers to the urban gang life of Chicanos in large cities such as Los Angeles.2 I am aware that the Chicano community in general uses this term to refer to the drug and alcohol lifestyle of gang members and their code of loyalty, but I would like to expand the understanding of this term to include a more multifaceted, complex interplay of values and challenges within the Chicano community. The expanded meaning of this term is manifested most clearly in a film titled Mi Vida Loca, produced in 1993, that depicted the life of las locas (“home girls”) in Los Angeles. They were primarily single mothers in relationships with men who were addicts. The film also portrayed the women’s independence, strength, and friendships.3 If we were to apply this 2 For a discussion of la vida loca, see Luis J. Rodriguez, Always Running La Vida Loca: Gang Days in L.A. (New York: Simon and Schuster, 1993). A Chicano/a is the son/daughter primarily of a person of Mexican descent, either born in the United States or in Mexico, but shaped by the ideological, social, and political forces of the barrio or of the United States. The term Chicano/a has deeply weaved connotations of rebellion and the search for freedom and justice brought about in the 1960s by the Movimiento Chicano. 3 Rafaela G. Castro, Chicano Folklore: A Guide to the Folktales, Traditions, Rituals and Religious Practices of Mexican Americans (New York: Oxford Univer- sity, 2001). 318 THEOLOGICAL STUDIES expression with its expanded meaning to spirituality we must ask, what would a spirituality that emerges out of this vida loca look like? We have seen how this is reflected in music and popular culture. Nonetheless, the role of religion has been marginalized. There is a dramatic raising of consciousness taking place in the Latino/a community today. Young people are asking why they are not included in the history books of their country, why they do not see themselves repre- sented in the upper echelons of power and authority of the Church, and why their “home religion” is at the periphery of their institutional churches. At times embarrassed by their mothers’ popular religion, they long to find “soul” somewhere out there. How do these young mestizas navigate mul- tiple cultural and epistemological venues? What is the impact of these multiple identities or experiences and evolution of their spirituality? His- torically the term mestiza referred to the biological bringing together of Spanish and Indian blood. Today, this term further entails an intrapsychic, interpersonal epistemological synthesis. This ongoing process of synthesis and integration is imperative for understanding the mestiza as lived out in the contemporary Latinas in the United States. What insights of mestiza spirituality emerge from negotiating values, worldviews, perceptions, and ways of knowing? My hypothesis is that a dynamic interplay between constructed identity, ritual, and community justice is the basis of spirituality for the mestiza. For the purpose of this article, spirituality is not “faith seeking understanding” in the classic Anselmian definition of theology, rather spirituality is self- transcendence seeking meaning, purpose, and wholeness in the way one perceives the ineffable mystery of everyday life. Defined in this way, spiri- tuality is the innate human capacity to transcend our limitations through ideas, values, symbols, rituals, and other conceptual vehicles that elevates us to discover, rediscover, or uncover a hidden meaning or a hidden truth connecting us to God, our Ultimate Reality. Without this capacity toward the spiritual, human lives would remain in a world of utter despair. This is why people steeped in a situation of unbearable oppression, exploitation, and systematic domination develop a capacity to discern more clearly the healing power of life-giving force and the hope-filled power of a liberating spirituality. As Gloria Anzaldúa once said, “spirituality is the ultimate resort of people who are extremely oppressed.”4 Latino/a culture, religion, and spirituality are so integrated that to try to define spirituality separated from culture creates a false dichotomy and does a disservice to the Latina community. This understanding of spiritu- ality seeks to capture the daily ritual practices that foster the habits of the 4 Gloria Anzaldúa, Interviews/Entrevistas, ed. Analouise Keating (New York: Routledge, 2000) 288. 319MESTIZA SPIRITUALITY heart, as revealed in the practices of a community. Perhaps the basic for- mative concept that must be highlighted for this argument is the manner in which community precedes the personal in Latino/a identity. The question of identity has been at the forefront of U.S. Hispanic theological concerns since the late 1980s. I argue that the fluidity of this mestiza identity, coupled with ritual knowledge within the context of com- munity, leads significantly to a commitment to justice. Ethnic studies, lit- erature, popular religion, feminist and cultural theory provide insight into “the lived experience” of mestizas. Often, ethnic studies underplay issues of spirituality. Religious studies tend to underplay ethnic understandings of self and spirituality. This article, therefore, draws from my previous inter- disciplinary work and from insights of social and behavioral scientists, and from a recent survey of college-age Latinas that I developed. Here I con- nect these disparate threads and weave a creative tapestry of mestiza knowledge. MESTIZA SPIRITUALITY: IDENTITY In the late 1980s, writer and poet Gloria Anzaldúa articulated la con- ciencia de la mestiza.5 This conciencia is a consciousness of mixed blood. As she states, la conciencia de la mestiza: is a product of the transfer of the cultural and spiritual values of one group to another. Being tricultural, monolingual, bilingual, or multilingual, speaking a pa- tois, and in a state of perpetual transition, the mestiza faces the dilemma of the mixed breed. . . . She has discovered that she can’t hold concepts or ideas in rigid boundaries. . . . La mestiza constantly has to shift out of habitual formations; from convergent thinking, analytical reasoning that tends to use rationality to move toward a single goal (a Western mode), to divergent thinking, characterized by movement away from set patterns and goals and toward a more whole perspective, one that includes rather than excludes.6 Anzaldúa furthers this idea by proposing that the mestiza “develops a subjectivity capable of transformation and relocation, movement guided by the learned capacity to read, renovate, and make signs on behalf of the dispossessed.”7 This particular ability and skill Anzaldúa calls la facultad: La facultad is the capacity to see in surface phenomena the meaning of deeper realities, to see the deep structure below the surface. It is an instant “sensing,” a quick perception arrived at without conscious reasoning. It is an acute awareness 5 Gloria Anzaldúa, Borderlands: The New Mestiza (San Francisco: Aunt Lute, 1987) 79–91. 6 Ibid. 78–79. 7 Chela Sandoval, “Mestizaje as Method: Feminists-of-Color Challenge the Canon,” in Living Chicana Theory, ed. Carla Mari Trujillo (Berkeley, Calif.: Third Woman, 1998) 352–70, at 359. 320 THEOLOGICAL STUDIES mediated by the part of the psyche that does not speak, that communicates in images and symbols which are the faces of feelings, that is, behind which feelings reside/hide. The one possessing this sensitivity is excruciatingly alive to the world.8 Philosopher Maria Lugones concurs with Anzaldúa and claims that the theory and method of U.S. women of color feminism requires of its prac- titioners nomadic and determined “travel” across “worlds of memory.”9 Thus Anzaldúa brings to this argument the formative process that consti- tutes the essential elements of Latino/a community: language, history, re- ligio-cultural practices. This constitutive piece develops the subjective per- son as of the community, i.e., the individual’s important place in the pro- cess of community. Through the individual subjective dialogue with “other” the transhistorical identity of Latino/a is developed and understood. This identity, in brief, develops from the living words of a community. Building on the work of Anzaldúa, Chela Sandoval, a cultural theorist at the University of California at Santa Barbara, develops an understanding of what she calls the “methodology of the oppressed.” Key elements in- clude: engagement with multiple identities, resistance to the dominant cul- ture group, and marginalization. Another expression of this activity is that it links theorizing with the concrete struggles of the people. Sandoval iden- tifies five techniques used by marginalized groups as a form of survival and psychic resistance: (1) sign reading places one in the position of observation and deciphering cultural constellations while experiencing, observing and witnessing; (2) deconstruction of Western categories; (3) appropriating ideological forms in order to rework and reuse them; (4) democratics, the function of using techniques not just for survival but for active change; and (5) differential movement, “a polyform upon which the previous technolo- gies depend for operation.”10 These technologies have a two-pronged utility: they galvanize psychic resistance to domination and become the source for social praxis. These twofold inner/outer movidas are the kinds of modes utilized by the op- pressed for their own liberation. These two, among several others, are some of the survival skills that U.S. Latinas have been employing in the struggle long before they became recognized as a viable approach to po- litical theory and practice. I now examine these “techniques” as they apply to the mestiza. Whatever theory of signs is adopted, signs make explicit what is implicit and impart a concrete, historically situated knowledge that enables people 8 Anzaldúa, Borderlands 38. 9 Sandoval, “Mestizaje as Method: Feminist-of-Color Challenge the Canon” 359. 10 Chela Sandoval, “New Sciences, Cyborg Feminism and the Methodology of the Oppressed,” in The Cyborg Handbook, ed. Chris Hables Gray (New York: Routledge, 1995) 410. 321MESTIZA SPIRITUALITY within a particular group to understand one another. From this type of sign-reading concepts like “borderlands,” “mestiza,” “flor y canto,” and other culturally laden sign-configurations emerge. These constellations of signs and their meaning to the mestiza provide a new language, a new grammar for liberation. The concept of mestiza, for example, already im- plies a new awareness of the mestiza herself as a mixed-race, bicultural woman, who is mobile, flexible, and at home in two or more cultures, identities, classes, sexualities, races, genders, and geographical spaces. Central to Sandoval’s second technique is the idea of deconstructing binaries and decentering (or recentering). These two ideas are adopted from the philosophical approach known as deconstruction by French phi- losopher Jacques Derrida. Logocentrisms according to Derrida are privi- leged terms like male, mind, inside, true, etc. They represent an order and a classification of events and relations in everyday life. However, the mean- ings of these privileged terms are dependent on their opposites for its meaning. These oppositional terms, the hidden and less privileged ones, create an either/or dichotomy: male/female, mind/body, inside/outside, true/false, and so on. The idea of decentering (or recentering) involves making what was hidden and marginalized the new center, to emphasize the fact that without this supplemental term the central, privileged term means nothing. This is an important analytical tool for the methodology of the op- pressed. However, unlike Derrida who leaves binary dichotomies in a play of undecidability (unsolved), Chela Sandoval’s paradigm calls for the sub- version of these contradictory opposites. Sandoval recognizes that extreme oppositional consciousness creates in oppressed groups a sense of anger, and anger sometimes turns into hatred (class, race, gender, etc.) and once this happens, hatreds turn into violence and destruction. The binary oppo- site of hatred is love, and Sandoval knows that in order to subvert hatred a praxis of love is needed that dissolves the hatred/love dichotomy that recenters love. Meta-ideologizing deals with the “tactical subjectivity” of the mestiza that politically revises and reformulates ideologies so that it “denies any one ideology as the final answer.”11 This position rejects the privileged presence of one hegemonic ideological form. As a woman of color, a Chi- cana/Latina mestiza’s identity is a fragmented self as more than one iden- tity makes a claim on her subjectivity, for example, her race, class, gender, sexuality, nationality, disability, etc. The mestiza does not view these iden- 11 Direct quote of Chela Sandoval in an article by Rosa Linda Fregoso, “‘Dif- ferential Consciousness’ in Despues del Terremoto,” Latino Film, Homes of the Films and Videos of Lourdes Portillo, in http://www.lourdesportillo.com/ nepantla.html. 322 THEOLOGICAL STUDIES tities as oppositional and these relationships have given her the skills nec- essary to survive and adapt by shifting identities whenever necessary. This kind of versatility requires that the mestiza “recenters” herself depending on the kind of oppression she confronts. Sandoval argues that it requires grace, flexibility, and strength: “enough strength to confidently commit to a well-defined structure of identity for one hour, day, week, month, year; enough flexibility to self-consciously transform that identity according to the requisites of another oppositional ideological tactic if readings of pow- er’s formation require it; enough grace to recognize alliances with others committed to egalitarian social relations and race, gender, sex, and class justice, when their readings of power call for alternative oppositional stands.”12 Democratics is the technique, I believe, that requires imagination, cre- ativity, and commitment to active social change using the survival skills learned in the last three techniques. Some Chicana/Latina mestizas utilize this knowledge and methodology by transforming oppressive cultural and religious discourses through ritual, film, teatros, and other media. Differ- ential movement involves constant flux and dynamic movement as it per- forms the organizing, linking, and reformulating function of forces moving in different directions. It is the pivotal nerve center of differential opposi- tional consciousness. These techniques may be conscious or unconscious but they increasingly produce and sustain oppositional activity. In other words, this activity cre- ates a space between two or more forces that many times move in different directions. From this oppositional consciousness the spirituality of a U.S. Latina emerges. In the end, the dynamics of the consciencia de la mestiza and “oppositional consciousness” is the substance of an identity that is highly contextually specific and historically particular, and that this subject is always actively engaged in a process of becoming rather than achieving a fixed self. The Latino/a culture has evolved from a tradition that is often described as flor y canto, flower and song. According to this worldview, the deepest recesses of being human can only be expressed in the poetry of metaphor and beauty, as Gabriella Gutiérrez y Muhs expresses in her poem Las Granadas (Pomegranates): The chambers of my disposition Divided by fleshly porous walls, Blood filled portions of me. 12 Direct quote of Chela Sandoval in Jane Mansbridge’s “Complicating Opposi- tional Consciousness,” in Oppositional Consciousness: The Subjective Roots of So- cial Protest, ed. Jane Mansbridge and Aldon Morris (Chicago: University of Chi- cago, 2001) 26. 323MESTIZA SPIRITUALITY ¿Could I be a Buddhist Catholic? ¿Will the Pope invest on my illegal condition of hope? ¿Have the Virgin of Guadalupe and Tonantzin Merged with Ixtazihuatl inside my pomegranate? Cartas a nadie ¿Does Santo Clos live with The Three Reyes? ¿Do I write to my 98 cousins I will never meet? ¿Is there peace in the salsa made with fire? ¿Can I sup at the table of the monks That speak only Spanish? ¿Could the war of streets, barrios, and belongings end with agronada or with a pomegranate? ¿Can an alcoholic swim herself back to the tierra santa? ¿Does la madre patria marry a passport In her dreamy trench of identidad? ¿Is there soul food in the atrium of forgiveness? ¿Will the pomegranate evolve into a grapefruit?13 The pomegranate is a metaphor for latinidad, isolation, and unity. It is the perfect metaphor for suffering, blood, and alienation and also for great- ness undiscovered. In Spanish, the word fruit is somewhat much more personified than in English: it has skin, bones, and heart. Food may carry multilayered meanings. For example, Mexico’s most popular national dish is chiles y nogales. The colors that make up this dish represent the blood of the heroes (red), integrity (white), and hope for the future (green). In the case of the pomegranate, it has rooms, chambers, and cities. La granada in Spanish may either be a food delicacy or a weapon, a true antithesis. So many times Latinos are inside a granada suffering quietly, reinventing systematic pains, not knowing that in other chambers of our latinidad the same process has been repeated. We can isolate ourselves thinking that we are the only Chicano Muslims or Texan Buddhists; the only ones that criticize the Church for its hierarchical structure; the only ones that speak the language of our pre-Columbian ancestors, but really we all are part of the tree of granadas that feeds and softly kills part of us when we enter another chamber. Each of us a granada, or a chamber, whatever we resolve to be. Will we ever evolve into a citrus and see the rest of our own self? Henceforth, the dialectical discussion of the self becoming allows for a dramatic expansion of subjectivity to occur through a variety of interdis- ciplinary lenses. Chicana scholar Gutiérrez y Muhs contends that subjectivity is con- stantly being reconstituted and that this subjectivity is constructed through “representations circulated by society’s major institutions of social repro- 13 Gabriella Gutiérrez y Muhs, unpublished poem (2002). 324 THEOLOGICAL STUDIES duction, the family, the school, the Church, advertising, culture, i.e., the ideological state apparatuses. These are systematically but independently organized to hail us as their subjects.14 U.S. Latinas’ (mestizas in particu- lar) self-concepts are determined in relationship to others. These relation- ships manifest themselves in the links that are woven between them and their families, friends, co-workers, and relationships with the saints, the divine, and creation. Chicanas in particular have enjoyed a multiplicity of roles. One needs only to look at their cultural tradition and context to see them in their roles as mothers, healers, basket weavers, community leaders, rezadoras (prayer leaders) and curanderas (faith healers). MESTIZA WORLDVIEW AND SOCIAL CONSCIOUSNESS My early work exploring the significance of Our Lady of Guadalupe in relation to Mexican American women was grounded in a psychosocial religious framework.15 This perspective includes popular religion and a holistic model of the human that conceptualizes them in a psychosocial reality. I utilized the work of Jerome Frank, in particular his notion of the “assumptive world,” William James’s understanding of the religious, and more recently Chicana feminists, poets, i.e., Anzaldúa, Sandoval, and Hurtado.16 Jerome Frank, professor of psychiatry, begins with the assumption that human beings are social creatures, and as such one’s worldview and be- havior will be influenced and formed by the standards of the groups to which they belonged. He uses the term “assumptive world” to designate the psychosocial dimension of a person’s life. In order to be able to function, everyone must impose an order and regularity on the welter of experiences impinging upon him. To do this, he develops out of his personal experiences a set of assumptions. . . . The totality of each person’s assump- tions may be conveniently termed his “assumptive world.” This is a short hand expression for a highly structured, complex, interacting set of values, expectations, and images of oneself and others, which guide and in turn are guided by a person’s perceptions and behavior and which are closely related to his emotional states and his feelings of well-being. The more enduring assumptions become organized into attitudes with cognitive, affective, and behavioral components.17 Frank contends that not all personal assumptive worlds are the same. They vary as experiences and self-images vary. How we see ourselves and the 14 Griselda Pollack, Vision and Difference: Femininity, Feminism and Histories of Art (New York: Routledge, 2003; orig. ed. 1988). 15 Jeanette Rodriguez, Our Lady of Guadalupe: Faith and Empowerment among Mexican-American Women (Austin: University of Texas, 1994). 16 Ibid. 17 Author reflects the non-inclusive language of his time. 325MESTIZA SPIRITUALITY world around us, the values we attach to what we see, and the resulting behavior, all join to form the psychosocial dimension of a person. Chicana feminists have added to this understanding of assumptive world- view by introducing the concepts of oppositional (Sandoval) and mestiza consciousness (Anzaldúa and Hurtado). Chicana feminist discourse in- cludes their daily clash with different languages, different belief systems, and cultural practices, so that their assumptive world is not contained, limited or circumscribed, nor is it a place of absolute certitude. At one point or another, U.S. Latinas, in their young lives had to explain to some- body—a teacher, neighbor, priest, etc.—how they felt, what they believed in, and why they lived the way they did. Those possessing a mestiza con- sciousness are forced early into becoming bridges between the “past” world and the “present” world, between their families and the bicultural world they live in, between the academic world and the community, the social, and professional worlds. Chicana feminists identify this ability to translate, to negotiate, to bridge as la facultad, or ability. This facultad, as already noted, enables one to view simultaneously multiple social perspec- tives. This multilevel discourse encompasses the ever important interplay of cultural analysis. The culture concept is an integral element and plays an important role in this assumptive world. For this article, culture will be understood as: “So- cially transmitted, often symbolic, information that shapes human behavior and regulates human society so that people can successfully maintain them- selves and reproduce. Culture has mental, behavioral, and material aspects; it is patterned and provides a model for proper behavior.”18 Therefore, to appreciate another person, one must appreciate her as- sumptive world, or her psychosocial reality. The process of enculturation, or learning one’s culture, posits a worldview as a fact, and connects the variety of experiences that constitute reality. It is out of this reality that all rationality flows. One who functions from a mestiza consciousness is more apt to not only articulate her position but to help see the position of others. My generation would have discussed this in terms of choque de culturas, a clash of cultures. The clashing or choque of two or more realities is highlighted by oppo- sitional consciousness, i.e., by a consciousness borne out of direct conflict, marginalization, and oppression suffered by U.S. Latinas and their struggles to resist the structures of oppression in the dominant society. The mestiza refuses to accept this condition as an either/or choque de culturas. Instead, the mestiza views her own reality as the reality of living life as la vida loca. She bridges these two or more realities through a new synthesis, 18 John Bodley, Cultural Anthropology: Tribes, States, and the Global System (Mt. View, Calif.: Mayfield, 2000). 326 THEOLOGICAL STUDIES by creating a new space, a new meaning, a new spirituality. The mestiza borderland facultad engages in a creative and constructive spirituality by strategizing, navigating, negotiating, and building a new universe of mean- ing, i.e., a new space where the self engages other selves in a new universe of meaning that is becoming, evolving and transforming. By rejecting the either/or dichotomy, the mestiza balances or bridges these two or more opposing realities by transforming the either/or dichotomy into a “this- and-that.” The operative word here is the conjunction “and.” This is the essence of what it means to be a mestiza. For example, if we use the racial and cultural meaning of mestizaje, the mestiza is both Spanish and (note here the conjunction “and”) Indian, but in reality, as a choque de culturas shows, she is neither Spanish nor Indian because her conjunctive, differ- ential racial and cultural reality has transformed her into a new person. The mestiza, then, is the disfrasismo par excellence of a new person, a new rostro y corazón (in ixtli in yóllotl, face and heart). This conjunctive “and” therefore is the conjunctive, differential consciousness of mestiza spirituality. This present generation, I believe, has more history, consciousness, and awareness to be able to move its position to view a situation from different perspectives. Hence its members adopt and find resources for belonging in this vida loca. The danger, of course, in this gift, is also the temptation to relativize everything. All individuals belong to multiple groups, therefore may possess a variety of social identities. However, “social identities gain particular significance when they represent ‘master statuses’ and when they are stigmatized. Race, social class, gender, and sexuality are the significant social identities.”19 While a purely Western cultural consciousness would be fragmented, the mestiza consciousness navigates these realities with an equanimity that flows from a concrete spirituality. PARTICIPANTS OF THE SURVEY In order to further my investigation and to concretize it, I developed a simple questionnaire to distribute to a specific grouping of the Latina population in order to elicit information from a small sample of the variety that makes up U.S. Latinas. I am aware that this does not meet the criteria for a formal, complex, scientific research tool. My aim was to get a sense of the state of spiritual consciousness of Latina college-age students today. The targeted population was Latina women between the ages of 18 and 45, living in the United States. The criteria were that (1) they identified them- selves as mestiza; (2) they were bilingual and bicultural, understanding the fact that levels of proficiency and preference vary; and (3) they were Ro- man Catholic. 19 Aida Hurtado, Voicing Chicana Feminism (New York: New York University, 2003) 101. 327MESTIZA SPIRITUALITY To this end, 100 survey questionnaires20 were disseminated in the fall of 2002 to professional Latino/a staff and faculty at a variety of different universities (i.e., Chicago, Idaho, California, and Washington). These pro- fessionals were asked to distribute the questionnaire to their students who satisfied the criteria. In addition, the questionnaire was sent to parish and adult leaders in faith communities that were predominantly Latino/a (i.e., Florida, New Jersey, California, Washington, and Oregon). Of the 100 sent out, 63 were returned. The largest group of respondents (46) was between the ages of 18 and 24, primarily second generation, of Mexican roots, single, and attending university. Out of these 46, 39 met the criteria, and form the basis for the analysis that follows. I am particularly interested in the Pacific Northwest region where there is a growing Latino/a population. One does not find, however, the larger, easily identified Latino/a commu- nity as one does in California, Texas, or New York. Twenty-seven of the 39 (69%) respondents in this age range considered themselves mestiza and 29 of the 39 (74%) thought it was an important classification in terms of identity. Seventy-two percent of the respondents pray regularly and attend weekly mass. Half of this percentage report praying the rosary, or having a devotion to Our Lady of Guadalupe; 27 of the 39 (69%) participate in cultural/communal rituals: Dia de los Muertos, Semana Santa (Holy Week), Los Posadas, the feast of Our Lady of Guada- lupe, December 12, and Los Tres Reyes (The Three Kings), January 6. My first review of the surveys indicates that this generation is more institutionally educated than the generation that came before them, which means that they are more acculturated. There are remnants of the first generation’s popular devotion, i.e. expressing devotion to the saints (i.e., St. Martin de Porres, St. Miguel, St. Veronica), in particular prayer (ro- sary), novenas (for home, children, special objects), blessings, and pilgrim- ages (to Chimayo of New Mexico and the Basilica of Our Lady of Guada- lupe in Mexico). This age range also identified themselves as being part of a community and as participating in community. Community is important to them. It gives them belonging, identity, and purpose. The celebration most practiced after attending Sunday liturgy is the Dia de los Muertos celebration. This particular celebration underscores the ongoing connec- tion of the dead with the living and their active participation the life of the community.21 Once a year, the portals of time are opened, and communi- ties of believers gather to remember those who have gone before them, to 20 This survey was self-administered with no interview or follow-up. 21 For historical origin and celebration of the Dia de los Muertos, see Elizabeth Carmichael and Chloe Sayer, The Skeleton at the Feast: The Day of the Dead in Mexico (Austin: University of Texas, 1982); Hugo G. Nutini, “Pre-Hispanic Com- ponent of the Syncretic Cult of the Dead in Mesoamerica,” Ethnology 27 (January 1988) 57–78. 328 THEOLOGICAL STUDIES be cognizant of those who are with them, and commit themselves to those who will follow. Warmed by candles, consoled by the company of the living, and the spirits of the loved ones who have gone before them, Lati- nos/as will remember their dead. This ritual in particular acknowledges, affirms, and nurtures the ongoing relationship between the living and the dead. This data, while not in depth, does reveal some significant trends and challenges. It is inspiring to witness how U.S. Latinas/Chicanas seek to reclaim their roots, foster their identity, and nurture their spirituality in resistance to a social context that pressures them to assimilate. Of particu- lar significance is the remembering or the reconnection with the ancestors. I am reminded of a recent healing group in which I participated, where the cuarandera (traditional faith healer) utilized a number of practices from various traditions: prayer, smudging, blessing with holy water, singing, call- ing for the aid of ancestors and saints, and soul retrieval. I wonder if there is any correlation of the dismissal of our saints in the Church and the increasing search for mediators who can reconnect people with their past? This connection with the past not only enhances the relational self but also demonstrates a place and purpose for those people who have been con- tinuously marginalized by dominant cultures. Perhaps this challenge cre- ates new memories. Understanding how Latinas construct their identity is a key ingredient in this process. Marina, one of the Latinas from the survey, captures a frequently ar- ticulated experience of being a mestiza in 2003: Initially, for me, mestiza acknowledges my Spanish and indigenous blood. More profound is my experience as a Chicana living in the Northwest. It would be one thing to be a Chicana living in the Southwest or East Coast where there are significant Latino populations. It is a completely different experience to be a Chi- cana living in areas that have small populations of Latinos. The visual image that best describes my experience is the teeter-totter, where you are up on one end while the other is down. Experiencing success in one cultural group (Latino vs. main- stream) has historically meant that I have been down in the other cultural group. This experience has been physically, mentally and emotionally draining. Balancing was an act that took me a long time to learn. I became motivated to balance my Mestisaje experience after being down on both ends of the teeter-totter for long periods of time. I came to the conclusion that there had to be a way to balance this experience. However, it took me a long time to come to this conclusion because those before me had always accepted one reality over the other, never attempting to balance. Who knows, maybe they did try to balance but the experience became too emotionally draining. Throughout my experience, I have learned that it is okay to be up on one the end of the teeter-totter and down on the opposite. I have also learned that it is possible to balance both experiences but that doing so requires a lot of thought and emotional energy.22 22 Interview with “Marina,” November 2000. 329MESTIZA SPIRITUALITY My previous research was primarily with Mexicans and Mexican Ameri- cans who were first and second generation and over the age of 40.23 In that age range there was significant evidence of popular devotion, the saints, praying of the rosary, home altars, blessings, processions, and communal celebrations such as Dia de los Muertos, Las Posadas, Semana Santa. The results from the survey of university students revealed a more educated second generation that integrates the home practices of popular devotion with Sunday liturgical practices and reading the Bible. My past experiences with second, third, and fourth generation Latinos/as indicated and affirm an involvement in popular practices to the extent that these practices cel- ebrate and affirm their identity as mestizas. THE BUILDING OF COMMUNITY The psychosocial factors that form identity are often considered the primary and exclusive avenues by which persons understand their world. As has been noted, the “assumptive world” includes one’s intrapsychic life and one’s interpersonal relations. It is from these intrapsychic and inter- personal influences that one’s personal identity is developed. Hurtado’s work on personal and social identity provides me with insight for understanding the foundation for a mestiza spirituality.24 She argues that for any human, personal identity contains some universal processes such as ability to love, work, and mate. In many cases she argues personal identity is much more stable than social identity.25 Social identity is defined as “those aspects of the individual’s self-identity that derive from one’s knowledge of being part of categories and groups, together with the value and emotional significance attached to these memberships.”26 These social identities are the consequence of three sociopsychological processes: social categorization, social comparison, and psychological work. Social categorization includes one’s nationality, language, race, ethnicity, and skin color. People often self-designate themselves. Language is second only to religion in identification of the people’s group. It is an important way of categorizing oneself. Race is a category that was created out of colonial empire building, through the interplay of power relations. Ethnic- ity has to do with the self-identity of a group of people within a culture, as being somehow culturally distinct from the more general culture, for in- stance, Indians within Guatemala, or Chicanos in Los Angeles, as opposed to Latinos/as within the United States. Ethnicity constitutes a language, 23 Jeanette Rodriguez, Our Lady of Guadalupe. 24 Aida Hurtado, Voicing Chicana Feminism. 25 Ibid. 99. 26 Ibid. 330 THEOLOGICAL STUDIES dialect, religious customs, manner of dress, etc. Skin color can also be a significant factor. Social comparison, the second process, achieves “significance in relation to perceived differences from other groups.”27 This is a socially constructed element that is important in cross-cultural communication. The question is how do people see themselves as really being different? A great example of this occurred at the turn of the 19th century when the Philippine com- munity of New Orleans were considered white and not colored. Native American, African American, and Asian, on the other hand, were consid- ered colored, non-white. Social comparisons are fluid. They do set up markers. However, the key question becomes, who decides? The third process is psychological work, and includes cognitive and emo- tional dynamics that support a positive sense of distinctiveness. The Lati- nos/as’ greatest values and aspirations—faith, hospitality, family—while not exclusive to Latinos/as, are highlighted as significant for Latinos/as. The groups that are most problematic for a sense of positive distinctive- ness, are disparaged memberships that have to be negotiated frequently because they are visible to others, ones that are politicized by social move- ments and so on. These are the most likely to become social identities for individuals.”28 It is these identities forged out of challenge and resistance that become especially powerful psychologically. Hurtado goes further to say that those group memberships that are socially affirmed, or valued or given privilege, may not even become social identities. This understanding of both personal and social identities is significant for this research in that it helps explain some of the responses on the survey. In particular, the women’s identification and full importance of the term mestiza. “The dis- tinctions between home, school, community, and mainstream institutions are . . . not clear cut and delineated, but are rather part of a web of multiple interacting communities . . . [F]amilies [however] are the starting point for surviving and effecting resistance to cultural assault, to valorizing and (re)creating a family education which stresses dignity and pride in language and culture.”29 The primary metaphor utilized in the writings of women of color for women’s consciousness is that of multiplicity. Many women of color, and in particular Chicana writers, speak about developing this multiple identity at an early age, juggling a variety of social groups, serving as bridges between their traditional monolingual family context and the dominant culture. 27 Ibid. 28 Ibid. 29 Sofia Villenas and Donna Deyhle,“Critical Race Theory and Ethnographies Challenging the Stereotypes: Latino Families, Schooling, Resilience and Resis- tance,” Curriculum Inquiry 29 (1999) 425, 441. 331MESTIZA SPIRITUALITY Many Latinas joke that while they see this ability as an asset, it has come at the price of being walked on by both sides.30 This constant crossing becomes the most ordinary thing in mestizas’ lives. Although they cross back and forth between these dual identities, they sometimes feel terribly unaccepted—orphaned. Some do not identify with the Anglo American cultural values and some do not identify with, for example, the Mexican American cultural values. Mexican Americans are a key example of this synthesis of these two cultures with varying degrees of acculturation, and with that synthesis brings conflict. Latinas describe their experience with a litany of words such as conquest, resistance, borderlands, integrity, anger, pain, economically and politically marginalized, and multiple identities. The nexus of rationality in this potentially fragmented realidad is found in the very spirituality that explains and reinforces the cosmology of latinidad. “Borderlands refers to the geographical, emotional, and/or psychological space occupied by mestizas, and it serves as a metaphor for the condition of living, between spaces, cultures and languages (Elenes, 1997). A Chicana feminist epistemology acknowledges that Chicanas and other marginalized peoples often have a strength that comes form their borderland experi- ences (Delgado Bernal, 1998b). So another part of a mestiza consciousness is balancing between and within the different communities.”31 Gloria Anzaldúa captures a compelling description of what it is like to cross between cultures and epistemological perspectives. “Indigenous like corn, like corn, the mestiza is a product of crossbreeding, designed for preservation under a variety of conditions. Like an ear of corn—a female seed-bearing organ—the mestiza is tenacious, tightly wrapped in the husks of her culture. Like kernel she clings to the cob; with thick stalks and strong brace roots, she holds tight to the earth—she will survive the crossroads.”32 Especially significant in the mestiza consciousness is the importance of Catholicism in the cultural practices. Many consider themselves deeply spiritual, drawing from both their Catholic roots and familial indigenous practices. In order to fathom this complex arena, some background of the religious history of U.S. Latinas or mestizas includes 16th-century Spanish Catholicism along with Native American and African indigenous religions must be understood. For example, Mexican American women inherit the legacy of the Spanish Conquest. This conquest was motivated by empire and expansion facilitated by military and economic interest and in many 30 Race, social class, gender, and sexuality are the significant social identities that are considered “master statuses, and the reason is because individuals must psy- chologically negotiate their potential stigmatizing effects.” 31 Dolores Delgado Bernal, “Learning and Living Pedagogies of the Home: The Mestiza Consciousness of Chicana Students,” Qualitative Studies in Education 14 (2001) 632. 32 Anzaldúa, Borderlands 78–81. 332 THEOLOGICAL STUDIES cases resisted by religion. Religion, however, facilitated the Conquest through missionaries who assimilated the Indians and through a church structure that controlled them. Given the pervasive role that religion and the Church had in the colonization of Latin America and the Caribbean, it is not surprising to find elements of this impact upon the family and tight-knit Latina communi- ties.33 Henceforth, a religion forged from the combination of 16th-century Spanish Catholicism, and indigenous African religion would still influence the faith of Latina Catholic women. Women’s “collective spiritual practices and faith have formed part of the bedrock of day-to-day survival for mar- ginalized communities. Many of those most socially and economically mar- ginalized—indigenous women—have steadfastly served as the unacknowl- edged high priests and healer of our working communities under siege.”34 Thus, while the Conquest in many ways destroyed a people’s public cultural expressions, in fact, the culture resisted total assimilation and re- interpreted Western values to fit their cosmological scheme. Hence, the synchronicity so prevalent in Latino/a culture. The hierarchy of the Catho- lic Church and its traditional teachings has not precluded mestizas from playing an active role in the practice of popular religion, nor development of their spirituality. Popular religion is considered home-based, with non- cleric led expressions and celebrations of faith, such as pilgrimages, pro- cessions, fiestas, and community created sacred shrines. They are sponta- neous and not mandated by the official hierarchy. Although popular reli- gion has its historical roots in 16th-century Catholicism, it has evolved a life of its own that captures the identity, values, and inspirations of the people. The new spirituality of mestizas can no longer be compartmentalized or limited to organized religion.35 Popular religion also functions as a powerful form of resistance to as- similation. At the annual convention of the Catholic Theological Society of America in 1989, Orlando Espin and Sixto Garcia pointed out that popular religion is an important guardian of culture, history, and identity; without it, we would not be the people we are. “Our identity as an integral part of the Catholic Church would not have survived the frequent clashes with the non-Hispanic—and often, anti-Hispanic—ways of the church in America.”36 Faith expressions of popular religion are readily accessible to 33 Ana Maria Diaz-Stevens, “Latinas in the Church,” in Hispanic Catholic Cul- ture in the U.S.: Issues and Concerns, ed. Jay P. Dolan and Allan Deck (Notre Dame: University of Notre Dame, 1994) 240–77. 34 Yolanda Broyles-González, “Indianizing Catholicism,” in Chicana Traditions: Continuity and Change, ed. Norma E. Cantú and Olga Nájera-Ramı́rez (Urbana: University of Illinois, 2002) 118. 35 Ana Castillo, Massacre of the Dreamers: Essays on Xicanisma. (Albuquerque: University of New Mexico, 1994) 147. 36 Orlando Espı́n and Sixto Garcia, “ ‘Lilies of the Field’: A Hispanic Theology 333MESTIZA SPIRITUALITY anyone without exception and no one is excluded from participating in them. They provide a deep sense of unity and joy, while providing a forum for shared suffering. They are participatory and everyone takes an active role in them. For those who participate in the realm of popular religion, religious experience permeates all space and time. There are spaces and times of special strength and power that are part of the religious experi- ence. Mestizas today practice a polyfaceted spirituality that connects the ancestors to the present, balance the fragmented world of the post- Conquest, and create a deep emotional attachment to the land and its processes. The spiritual practices of many Chicanas emerge from a purposeful integration of their creative inner resources and the diverse cultural influences that feed their souls and their psyches. Accepting their estrangement from Christianity, . . . many Christians (re)turn to an indigena-inspired spirituality, learn to trust their own senses and bodies, recreate traditional cultural practices, and look to non-Western philosophies—all of which offers us a (re)connection to our selves, our spirits, and to the ongoing process of creating nuestra familia. . . . Chicanas define and decide for themselves what images, rituals, myths, and deities nourish and give expression to their deepest values.37 These deepest values are formed in the everyday common struggle for life referred to as lo cotidiano.38 RITUAL KNOWLEDGE All human beings are symbol-creating creatures who use ritual behavior to organize socially meaningful ways to express values and tradition. No one living in society is free from some form of ritual. Ritual and ceremony are elements and expressions of being human. Ritual is not just an activity with no purpose but rather is the way in which human beings construct their worlds. It is also a means to gain epistemological access.39 Jennings argues that there are three moments in the poetic function of ritual: First, ritual action is a medium to attain knowledge. It may function as a of Providence and Human Responsibility,” in Catholic Theological Society of America, Proceedings 44 (1989) 70–90, at 71. 37 Lara Medina, “Los Espı́ritus siguen hablando: Chicana Spiritualities,” in Liv- ing Chicana Theory, ed. C. Trujillo (Berkeley: Third Woman, 1998) 189–213, at 189. 38 See Orlando Espin, The Faith of the People: Theological Reflections on Popu- lar Catholicism (Maryknoll, N.Y.: Orbis, 1997) xvii; Miguel Diaz, On Being Human: U.S. Hispanic and Rahnerian Perspectives (Maryknoll, N.Y.: Orbis, 2001); and Ana Maria Isasi-Diaz, “Lo Cotidiano: A Key Element of Mujerista Theology,” Journal of Hispanic/Latino Theology 10 (August 2002) 5–17. 39 Theodore W. Jennings, “On Ritual Knowledge,” Journal of Religion 62 (1982) 111–27. 334 THEOLOGICAL STUDIES mode of inquiry and discovery.40 What this means is that the participants discover who they are in the world and how the world can be reconsti- tuted. This ritual knowledge is gained through bodily action that “alters the world and the place of the ritual participant in the world . . . it is primarily corporal rather than cerebral, primarily active rather than con- templative, primarily transformative rather than speculative. There is an incarnate character of ritual knowledge that is gained through embodi- ment.”41 One of the most common forms of ritual involves acting or dramatizing religious stories such as the narrative of Our Lady of Guadalupe, las Posa- das, and the Passion of Jesus. Religious symbols, stories, and rituals draw individuals and community into a deeper understanding of God by access- ing the mind and heart (devotion to the Sacred Heart, rosary, baptism, blessings). In Latino/a culture, everything is interrelated, interconnected, and interdependent, and people identify themselves through their relation- ships to others (hence the importance of comadrazo). These relationships between people also apply to the relationships between people and the Divine. The saints are Jesus’ friends and therefore friends of mine; Jesus is my brother, God is my father, Guadalupe is my mother. This parallel dichotomy of identity of self and other is a legacy of the institutional churches’ separation of genders within the lay clergy continuum. While consecrated males held the liturgical powers of the sacraments, women developed a unique, deeply religious parallel spirituality. The power of women, then, to formulate and express religious consciousness in the home was both a result of oppression and an expression of liberation. This spiri- tuality of relationship emphasizes the possibilities of being fully human within an extended community. It permeates all aspects of one’s life and is fundamental to one’s belief system. This community is a network of ex- tended social relations, bound by mutual obligations articulated by the matriarchs of the various families. Within popular religion, social organization is predominantly horizontal, with temporal responsibilities that do not separate persons or give unequal weight to functions. In preparation for las Posadas, Dia de los Muertos, or Semana Santa, everyone plays a role and each is important, whether their task is to make the tortillas or proclaim the Word. In celebrating these rituals, social organization is paramount in that elders are recognized as spiritual leaders and children are trained to assume those roles. All are essential to the celebration, all are valued and affirmed. Thus, “the per- formance of ritual . . . teaches not only how to conduct the ritual itself, but how to conduct oneself outside the ritual space.”42 40 Ibid. 112. 41 Ibid. 115. 42 Ibid. 118. 335MESTIZA SPIRITUALITY RITUAL THAT FOSTERS JUSTICE “Justice” is a complex term, and I struggled to decide which aspect to highlight. Is the mestiza consciousness focused on the concept of justice as equality? Is it a concept of justice that levels the playing field and develops a new grammar of life? A sort of utopia introduced or manifested when horizons are fused in a play of ritual practices? Is it in ritual practices that the players (participants) are transformed by gaining a new knowledge of themselves vis-à-vis one another? I understand justice in at least two ways: as cosmic order, that is, its relationship to every living and non-living thing in the universe, and as an individual and social rendering of one’s due. From these two understandings of justice, I have come to understand jus- tice as the idea of making someone or something whole (shalom). In the Judeo-Christian tradition, God’s righteousness (Latin: justitia) or justice was biblically conceived as God’s “right relationship” with all creatures (humans included), and the natural and cosmic order. The second part of the concept of justice is rendering persons their due. In the concept of justice where giving others their due in order to make them whole (shalom) justice demands that this be done on the basis of equal treatment. Unequal treatment because of one’s skin color, race, gender or some other trait or behavior is for all practical and theoretical purposes, an injustice. To deny a group of people justice on the basis of race, gender, etc., is not only to deny them their due, but on a deeper level, it denies them their worth or dignity as human beings. Central to the concept of justice is our understanding of what a person is. A person is a child of God endowed by God with human dignity. To declare someone worthless is to deny one justice. What are humans due in order to sustain their humanity? Minimally, justice requires that their es- sential needs be met. What are these? Food, shelter, clothing, health care, etc. In our dealings with one another, to fail to give the other his or her due is to do an injustice. This concept of justice as shalom is to restore others by making them whole, by restoring their worth. Social justice is the way in which we relate to the social whole (or “the common good” as Thomists call it). Social justice as understood here is our contribution through financial, socioeconomic, cultural, educational or other means to make the social whole sustain human life and, if possible, even make it flourish. If it fails to do this, we have social injustice. In liberation theology, God’s justice is conceived as directly concerned with the plight of the poor and those oppressed by racism, sexism, classism and other isms. Justice as understood in liberation theology is not “blind jus- tice” or the liberal standard of justice as impartial, i.e., of siding with no one. In the struggle for liberation, justice does, indeed, take sides and it does so because God’s justice has always been an option for the poor in the 336 THEOLOGICAL STUDIES Hebrew Scriptures and in the New Testament. It sides with the poor and the oppressed in the barrios of Latin America and in the barrios of Los Angeles. The God of the oppressed is the God who sides with the lives of people who live in a situation of internal colonialism, exploitation, oppres- sion and subhuman conditions. The distortion of God’s justice (right rela- tionship) to the oppressed by those in positions of power through their raw economic and political might, and through their racist, sexist, and class structures, as well as through other instrumentalities, signals a new under- standing of justice that emphasizes the eschatological dimension of the gospel of Jesus who was raised by God as a new creation, a new person (a new face and heart). The mestiza as a new person, a new face and heart, who is neither Spanish nor Indian, but both, is always already the eschatological presence of the new person raised in Christ at the resurrection. She is the presence of God’s justice at work in the world of the poor and the oppressed in the barrios of San Antonio, Los Angeles, Denver, and elsewhere. This eschato- logical presence is seen most vividly in the rituals, the customs, and the celebrations of mestiza spirituality. It is in this way that the Dia de los Muertos becomes an eschatological communion with our resurrected past and present. The celebrations of the Dia de los Muertos become a vehicle for communication with ancestors who were raised in Christ and now commune with us, as the present order and values of the oppressor are rapidly passing away. This communion with our resurrected past united in our present time during the Dia de los Muertos is shalom, our becoming whole again. It is God’s justice embodied in us and in the midst of our colonized, exploitative, oppressive and subhuman conditions.43 For this reason Guadalupe is such a profound experience for Latinas in general, Mexican Americans in particular. This devotion and ritual is one that invokes a God who brings justice to the world. God’s presence is reestablished among the conquered people and they are raised up. The Nahuatl language and culture, i.e., their ethnic identity as a people, are made whole by a God who validates their existence and restores their dignity and personhood. In the celebration of Dia de los Muertos, and the Virgin of Guadalupe, God’s justice is revealed once again. No one is for- gotten, the dead return among us, and continue to be among us. They sustain life for all of us. This life giving, life affirming, life sustaining is justice expressed and revealed. This life sustaining activity is nurtured primarily in the home space. Home altars form the moral and ethic tone for the community. In each home it is more important than the TV set. In this space it is remembered that the companions in the house are the ancestors, 43 I am indebted to my colleague Juan Alvarez Cuauhtemoc for his feedback and assistance in developing these ideas. 337MESTIZA SPIRITUALITY the saints, Jesus, and Guadalupe. Intimate relationships flow out from there to the community. What is remembered at home, what is shared around the home altar, around the dinner table, is the “water” that flows out to the community and connects them, sensitizing the participants to what are right relationships. So the basis of justice is relationships, ritual action, sharing, generosity, remembering, remaining connected, maintain- ing one’s dignity, restoring dignity to others. In the beginning of my article I mentioned entering la vida loca. Entering la vida loca of the barrio, one hears the crashing noise from the ghetto blasters, one sees multiple colors, dogs, children in the streets, women hanging out wash, cars in the yard—everything is chaotic, or is it? Could there be order here if you were to see through the spirituality that God is present? “[T]he street is a central locus of much of the religious display. . . . Ritualized actions such as pilgrimages, processions, posadas, passion plays and the repaying of mandas often take place in the public space of the street. Similarly, bodily religious display such as tattoos of the Virgen de Guadalupe or the wearing of an emblem or medal often fulfill their testi- monial function for other viewers in the public space of the street. . . . In many ways the street is now brought inside the church.”44 Thus, the mestiza spirituality’s contribution to the larger Church is one of ongoing creativity, the continual transformation of the remembrance, transformation of an exodus experience in their own lives. From the conquest and experience of oppression, Guadalupe leads the people to cross over the bridge from cruelty and genocide to one of real hope. There is also a struggle within the Latina community; it is a struggle demarcated along the lines of color (those who are light skinned versus dark skinned), class (those who are rich versus the poor), ancestry (those of African ancestry versus those of Indian blood), and status (those who are privileged and those who are underprivileged). This is an ongoing struggle at all communal celebrations, and yet, in prayer and ritual, at the Basilica for the feast of Guadalupe, the rich kneel alongside los pobres, the dark with the fair skinned, the privileged, and the despised. This happens, for example, nowhere else in Mexico. I have drawn attention to the daily ritual practices that foster the habits of the heart. My contention is that it is those rituals that transmit an ethics to the people which, when lived in community, fosters compassion and a care for justice that gives them a grammar for life. Ritual is a repetitive pattern that constructs a worldview, and is essential for revealing the loved 44 Ellen McCracken, “Contemporary Chicano Narrative and Public Religious Display: Recuperating the Sacred in the Barrio Street and Literary Text,” in Cul- tures de la Rue: Les Barrios d’Amérique du Nord, ed. Genevieve Fabre and Cather- ine Lejeune (Paris: Université Paris, 1996) 163–77. 338 THEOLOGICAL STUDIES process of a culture’s spirituality. While the harsh realities of a world of injustice constantly threaten la Raza,45 rituals reinforce the ideals of a world that existed, is now possible and is hoped for in future generations. In the gathering of the home altar or celebrating of the Dia de los Muertos one learns that one is not only connected to others across time, but that one is never alone. Ritual knowledge is gained not by detached observation but through the action, the gesture, lighting the candle, the placement of flowers, the walk- ing in a pilgrimage, etc. The re-enactment is how ritual knowledge is gained.46 It serves to transmit knowledge and forms a way of knowing, being and acting in the world. It is in this understanding that ritual action transmits the “knowing” gained through ritual action itself.47 The very basis of this access is through an emotional affirmation of being in a com- munity that expands beyond the temporal. The key contribution that Jen- nings makes is that ritual action does not primarily cause us to see differ- ently, but to act and know differently.48 At the conclusion of this article, the term mestiza may take on a meaning beyond a specific ethnicity of Latinas. Here I addressed the mestiza con- sciousness of U.S. Latina Catholic, but the process and the dynamics of mestiza can also be applied to other groups navigating or negotiating two or more cultures. What would be the mestizo/a construct be for an African American, Chinese American, Korean American, Russian American, bi- racial individuals? Understanding this process of mestiza is significant given the increasing multicultural changes in our parishes. My use of lit- erature, cultural theory, theology, psychology, and fieldwork challenges the established notions of spirituality. In particular, it challenges how U.S. Latinas’ spirituality or other minority cultures with their spirituality are viewed by mainstream theologians. 45 La raza means, literally, “the people,” and it is a term that refers to the mestizo, that is, to the children of mixed blood. The term also has the feeling of giving voice, name, status to the underdogs. 46 Jennings, “On Ritual Knowledge” 116. 47 Ibid. 113. 48 Ibid. 117. 339MESTIZA SPIRITUALITY 
work_pik6oyvvbnb5nfsynvmkcx4mru	----	1 Justice Reinvestment as a Global Phenomenon Ross Homel Key Centre for Ethics, Law, Justice & Governance & School of Criminology and Criminal Justice, Griffith University To appear in Victims and Offenders, 9(1), 2014 Accepted for publication October 25, 2013 2 Justice Reinvestment as a Global Phenomenon Ross Homel, Griffith University Justice Reinvestment (JR) is an international movement that had its origins in the early 2000s in the United States (Tucker& Cadora, 2003). From the beginning proponents were animated by data showing that incarcerated individuals come overwhelmingly from the poorest and most marginalized sectors of society, and that there is a remarkable concentration of serious offenders growing up in a relatively small number of communities across the country. Indeed Tucker and Cadora (2003) coined the phrase “million dollar blocks,” referring to some small areas in Brooklyn where so many people were in prison that it cost a million dollars a year to incarcerate them. Would it not, these authors opined, make more sense economically and socially to invest directly in these communities to improve living conditions and reduce the risk factors for crime than to continue to pursue a ‘fundamentalist’ policy of reliance on mass incarceration to improve public safety? The themes of rational social policy, the intelligent use of data on the geography and sociology of crime, the futility (and, implicitly, the savagery) of imprisonment as a cure-all for crime and safety problems, and the urgent need to rethink policies based on the ‘nothing works’ mantra are intertwined throughout the debates on justice reinvestment that have spread to many parts of the globe. It is well known that the United States is the incarceration capital of the known universe, and it is this feature of American exceptionalism that seems to give the JR movement in the US particular energy. It is perhaps a little surprising then – as the papers in this issue attest - that the ideas of JR have become so popular in 3 other countries, such as the United Kingdom and Australia, with growing interest in Europe, South America, China, and other places. Imprisonment as a default sentencing option has for example never been characteristic of any Australian jurisdiction, despite the nation’s origins as a penal colony (Bull, 2010). Indeed, as early as the second half of the nineteenth century several Australian states pioneered the use of such strategies as community service and payment of fines by instalments to avoid sending petty offenders to jail, and were quick to respond to the demands of the child saving movement for humanitarian reforms in how children and young people were treated by the police and courts. Nevertheless, as the articles by both James Austin and Gary Coventry and by William Wood emphasize, thinking Australian have long been extremely concerned about the massively higher imprisonment rates of Aboriginal and Torres Strait Islander (ATSI) peoples, and more broadly about the over-concentration of crime, social and health problems in a relatively small number of localities across all parts of the nation - urban, regional and remote (Allard, Chzanowski & Stewart, 2012; Gooda, Priday & McDermott, 2013; Social Inclusion Board, 2011; Vinson & Homel, 1975; Vinson, 2007). Australians, as William Wood argues, tend to use JR as a convenient rubric to reinforce long- standing arguments for greatly increased investment in evidence-based strategies in disadvantaged communities, and most especially in ATSI communities, in order to ‘close the gap’ in health, educational and justice outcomes. The conceptual and rhetorical link between de-investing in prisons and re-investing in evidence-based programs for offenders or their communities 4 that is such a prominent and seemingly non-negotiable feature of the US movement seems looser, less certain, more debatable in the Australian context. Certainly in the United States, as the paper by Faye Taxman, April Pattavina and Michael Caudy makes clear, the connection is maintained tightly: The most recent definition for Justice Reinvestment (JR) supported by the U.S. Department of Justice and its affiliate partners … is: Justice reinvestment is a data-driven approach to improve public safety, reduce corrections and related criminal justice spending, and reinvest savings in strategies that can decrease crime and strengthen neighbourhoods. (p. XX). However, there is an identifiable investment decision that needs to be made: do we allocate additional resources for evidence-based programs and strategies designed to change individual offenders, or do we allocate additional resources for a broad range of loosely linked community crime prevention strategies designed to change targeted high risk communities? Assuming that governments will not do both, it seems logical to ask: Which approach will yield the higher return on investment? There is no simple answer to this question. The problem is, as James Austin and his colleagues have emphasized (Austin, Cadora et al., 2013; Austin & Coventry, this issue), the cash transfer side of JR has not yet happened, there is little discernible reduction in incarceration rates, community-based services have not been expanded, and “practices in areas of high concentration of populations under control of the justice system” have not been affected (Taxman et al., this issue, p. XX). Does all this make JR a failure as either an individual 5 treatment or a community crime prevention strategy? It may be too soon to offer a definitive assessment, but as Austin and colleagues (2013) have noted, “The lack of targeted reinvestment in high incarceration communities is probably the most glaring weakness of JRI”(10). A similar assessment of the lack of targeted reinvestment in individual offender treatment is included in Taxman, et al.’s article. Taxman and her colleagues argue strongly that for the promise of JR to be realised there must be “a commitment to providing theoretically-sound, evidence-based correctional programming in both incarceration and community settings” (p. XX). They propose four performance measures (the validity of which is supported by a series of simulation analyses) to monitor progress in this regard: (1) availability of EBP practices in the system, (2)participation rate, (3)access rate, and (4) responsivity rate. A distinctive feature of the Taxman paper is its emphasis on extending the reach of evidence-based offender treatment programs, and particularly on matching offenders to programs based on a risk-needs- responsivity assessment. Extending the use of evidence-based treatment and making it more effective is certainly a major preoccupation of JR advocates in every country. However, there is considerable variation from country to country in how this priority goal is being pursued. In China, as Spencer Li’s article shows, there has been a very rapid expansion of community-based corrections since the early 2000s. A major reason for this expansion was the growing recognition of the cost and ineffectiveness of imprisonment, despite the fact that China, for social and cultural reasons, has much lower recidivism rates than the West. Although the discourse of justice reinvestment does not appear to be part of the 6 official lexicon in China, it is clear that at least to some extent policy makers intended that the expansion of community corrections would lead to reductions in imprisonment rates, would save money since community corrections is cheaper, and would reduce rates of recidivism, especially for drug offenders for whom the mandatory prison-based treatment programs are deemed a complete failure with 90% recidivism rates. Unfortunately no rigorous evaluations of community corrections have been undertaken, no official data are available on recidivism rates from these programs, and from what can be gleaned from current official statistics, there has been no decline in prison numbers. In other words, despite the clear justice reinvestment objective, what may in fact have been achieved in China with the expansion of community corrections in the last decade is simple net widening, a phenomenon very familiar to Western audiences. However, it should be emphasized that at this is simply conjecture, since the necessary research has not been done. Several conclusions can be drawn from the comprehensive analysis of crime rates and crime policies across a large number of European countries presented by Santiago Redondo and Nina Frerich, this issue. Perhaps the clearest conclusion is that Europe, home of the Enlightenment, has no uniform commitment to policies based on science or on humanitarian values. The continent is characterized by enormous diversity in crime rates, fear of crime, and punitive policies, with the Mediterranean countries for example making relatively greater use of imprisonment despite low to moderate crime rates (although their imprisonment rates are lower than in Eastern Europe). 7 Nevertheless there is a rich tradition of European research on the effectiveness of offender treatment programs, including “a remarkable range of systematic reviews and meta-analyses from almost three decades …” (p. XX) and the authors argue, in effect, that this resource should become much more prominent in crime policy development. They point to the low imprisonment rates in the Nordic countries despite sometimes rising crime rates, and the commitment in those jurisdictions to the use of scientific research and civilised criminal justice practices. They especially emphasize that at a time when most of Europe is still struggling with the consequences of the Global Financial Crisis, it makes good economic sense to de-invest in prisons and follow once again the advice of reformers such as Cesare Lombroso who were amongst the first to argue that offenders can indeed be reformed using scientific methods. Kevin Wong, Chris Fox and Kevin Albertson, writing in this issue from an “austere” part of Europe, the United Kingdom, describe how in that country “Payment by Results” (PbR) for the rehabilitation of offenders has gained currency as a “radical and decentralising reform which … will make the concept of justice reinvestment real by allowing providers to invest money in the activity that will prevent offending rather than spending money on dealing with the consequences” (Ministry of Justice 2010, cited in Wong et al., p. XX). In some ways PbR could be interpreted as a ‘put up or shut up’ challenge to the advocates of evidence-based policies and JR more broadly, including the NGOs (non- government organizations) that claim that they can do much better than government departments in working effectively with offenders. However, a major philosophical problem that this writer has with PbR and its twin sister, 8 Social Impact Bonds, is that they are partnerships “… in which philanthropic funders and impact investors—not governments—take on the financial risk of scaling up” (McKinsey & Co., 2012). Apart from the fact that this introduces a strong incentive to falsify or manipulate outcomes, it seems grossly unfair to transfer risk in this way when governments themselves have, over many years, failed to invest in the critical R&D to put offender rehabilitation on a sustainable foundation for large scale delivery, investing heavily instead in imprisonment and other punitive policies that are entirely without scientific foundation and in fact are known to increase recidivism. It appears that governments are willing to invest in prison and control-based community sanctions, but that they want the private sector to invest in strategies designed for individual and community change. An even bigger problem with PbR identified by Wong and his colleagues is that it is a strategy that is narrowly focused on criminal justice system redesign rather than on social justice, although they emphasize that these two models are at different ends of a continuum and are not mutually exclusive. By the social justice approach they mean the kinds of policies and practices that in the words of the British Parliamentarian Rob Allen “improve the prospects not just of individual cases but of particular places,” and which by working in a flexible and holistic fashion through agency partnerships address the root causes of crime and help stop offending in the first place. In other words, the social justice approach is about ‘neighborhood strengthening’ as envisaged by the U.S. Justice Department, but it is also ultimately about reductions in social inequality as well as in the manifold injustices and iatrogenic practises embedded in the 9 justice system. James Byrne (2008) has expressed well the tension between the system redesign and social justice approaches: Until we address the underlying community factors that social ecologists have long argued are associated with crime – including location in high- risk neighborhoods, culture, resource availability, jobs, poverty, and a breakdown of informal social control mechanisms – even high-quality, resource-rich rehabilitation programs are not likely to result in broad- scale desistance from crime among individual offenders (p. 270) Byrne’s challenge strikes me as being central to the justice reinvestment enterprise, no matter what country is being discussed. But can governments, which in recent decades have become much more interested in managing crime and public risks than in addressing its causes (Bull, 2010), be persuaded to invest heavily even in the rehabilitation of individual offenders, let alone the transformation of the communities from which many of them come? And is social science actually up to the challenge? Our prevention science colleagues are struggling with what they call ‘Type 2 translation research and systems,’ which is concerned with understanding and building the complex processes and systems through which evidence based initiatives are adopted, implemented and sustained on a large scale (Spoth et al., 2013). They have however made much good progress, and I would suggest a strong alliance between the social ecologists that Byrne refers to and those skilled in prevention science, particularly those from the health sector who have had more success than we have had so far in criminology. I am moreover sufficiently parochial to suggest that Australia could take a lead in this regard, especially in the light of William 10 Woods’ perceptive analysis of the receptive nature of Australian social policy and the extraordinary opportunities for bold but scientifically founded innovations in ATSI communities (Gooda et al., 2013). We do need, however, a reality check. Community transformation and reductions in social inequality take years, while the pathway into prison becomes ever more heavily trafficked on a daily basis in many parts of the world. As James Austin and Gary Coventry observe, “The U.S. industrial correctional complex is larger and even more expensive than ever,” (p. XX) and there is precious little evidence that so far JR has made much of a dent in this complex. They argue that the ‘solution’ to America’s mass incarceration problem consists simply of “eliminating the use of incarceration for sanctioning most criminal offenses” – in other words, the U.S. should become more like Australia, the UK, the Nordic countries; indeed more like almost anywhere else. Of course the proponents of JR in the U.S. hoped that this could be achieved by moving money from prisons to either individual or community rehabilitation. This may yet happen, especially if the rational and well- researched approach advocated by Faye Taxman and colleagues is taken seriously. Nevertheless, I cannot help but think that the reinvestment foundations of JR should be conceptualized as parallel rather than as tightly connected policies: send many fewer people to prison and adopt the Byrne/Taxman models, but don’t expect savings from the correctional budget to be moved magically to high-risk communities or to rehabilitation. If we make social justice and crime prevention objectives dependent on criminal justice system reform, history suggests we may well be doomed to failure. 11 References Allard, T., Chzanowski, A., & Stewart, A. (2012). Targeting crime prevention to reduce offending: Identifying communities that generate chronic and costly offenders. Trends & issues in crime and criminal justice no. 445. Canberra: Australian Institute of Criminology. Austin, J.; Cadora, E.; Clear, T.R.; Dansky, K.; Greene, J.; Gupta, V.; Mauer, M.; Porter, N.; Tucker, S. and Young, M.C. (2013). Ending mass incarceration: Charting a new justice reinvestment. http://sentencingproject.org/doc/publications/sen_Charting%20a%20New %20Justice%20Reinvestment.pdf Australian Social Inclusion Board. (2011). Breaking cycles of disadvantage, Commonwealth of Australia: Canberra. Byrne, J. (2008). Editorial introduction: The social ecology of community corrections – Understanding the link between individual and community change. Criminology and Public Policy, 7(2), 263-274. Bull, M. (2010). Punishment and sentencing: Risk, rehabilitation and restitution. South Melbourne: Oxford University Press Gooda, M.; Priday, E. and McDermott, L. (2013). Looking beyond offenders to the needs of victims and communities. Indigenous Law Bulletin, 8(5), 13-16. McKinsey & Co. (2012). From potential to action: Bringing social impact bonds to the US. https://mckinseyonsociety.com/social-impact-bonds/ Spoth, R.; Rohrbach, L.A.; Greenberg, M.; Leaf, P.; Brown, C.H.; Fagan, A.; Catalano, R.F.; Pentz, M.A.; Sloboda, Z.; Hawkins, J.D. & Society for Prevention Research Type 2 Translational Task Force. (2013). Addressing core challenges for the http://sentencingproject.org/doc/publications/sen_Charting%20a%20New%20Justice%20Reinvestment.pdf http://sentencingproject.org/doc/publications/sen_Charting%20a%20New%20Justice%20Reinvestment.pdf https://mckinseyonsociety.com/social-impact-bonds/ 12 next generation of Type 2 translation research and systems: The translation science to population impact (TSci Impact) framework. Prevention Science 14, 319-351. Tucker, S.B. and Cadora, E. (2003). Justice reinvestment. New York: Open Society Institute. Vinson, T. (2007). Dropping off the Edge: the distribution of disadvantage in Australia. Melbourne: Jesuit Social Services and Catholic Social Services Australia. Vinson, T. and Homel, R. (1975). Crime and disadvantage: the coincidence of medical and social problems in an Australian city. The British Journal of Criminology, 21-31. 
work_pkfyhouesbbvrjzdsenc3tfq7i	----	Nagenborg_Spheres-abstract\374 Designing Spheres of Informational Justice M. Nagenborg TOWARDS AN INTERACTIVE, NON-RELATIVIST UNDERSTANDING OF PRIVACY In my book on privacy (2005) I suggested to understand closing off the private from the public sphere as an interactive process. In my opinion this is also the reason why privacy may be considered a matter of ethics, as keeping the protected zone of privacy requires a way of acting which is guided by norms. We do not have any field which is labeled “private” by nature but must demand privacy and in many cases must give reasons to this demand. It looks to me as if the necessity of reason-giving and thus of giving reason to this demand have recently been increasing. At least two reasons must be given for this: first, manners, which in former times contributed to successfully demanding privacy, have lost their significance. Second, in the past we were able to give third parties to understand that they should keep distance. When acting by way of information and communication technologies (ICTs) we often do not know how to give to understand that this now is a private action or how we should keep distance (see Phillipps 2003, 2006). Due to this, it becomes increasingly problematic that we cannot speak of a common understanding of privacy within a society (quite apart from intercultural differences). One solution of this problem is in declaring the private a private matter and in having each individual deciding by way of technical devices about which information he/she wants to disclose to whom. Kuhlen (1999) called this the “interactive understanding” of the private. E. g. Lessig (2002) could be named here as a prominent representative. If in the following I will speak out for an interactive but non-relativist understanding of the private, this is due to my understanding of privacy as a social good. On the one hand, this results from the fact that we must give reasons to others for demanding privacy (and we should be able to give convincing reasons), on the other hand it results from the fact that determining the private also at the same time determines the boundaries between the private and the public. And in my opinion that what must be considered public is something concerning every member of a society. PRIVACY AND INFORMATIONAL INJUSTICE In respect of empirical research, but also due to our everyday experience, there may be the question if there is a dichotomy of privat and public at all. Rather, is it not that in different contexts we must assume different concepts of privacy and that the boundaries between the private and the public are changing? Although from the point of view of philosophy I am convinced that within the different, context- dependent ideas of privacy there is a core of the private, in respect of drafting and judging on ITCs there is the question of how we could do justice to the fact that by demanding privacy we combine different expectations in different contexts. Regarding this, Van den Hoven (1999), while following Walzer´s “spheres of justice” (1983), suggested to analyze privacy under the aspect of “informational injustice”. The idea of distinguishing different spheres within society from each other was taken up a. o. by Nissenbaum (2004) who for her suggestion of “privacy as contextual integrity” directly refers to Van den Hoven and Walzer. Doing this, she emphasizes that within different spheres there are different norms regarding the collection and processing of personal information and that due to this particularly the exchange of information among these spheres must be considered. One advantage of this sphere concept is that it fits to our intuition that it makes a difference if we diclose cartain information to a doctor (within the medical sphere) or to an employer (within the economic sphere) and that we expect e. g. the doctor not to pass on the information that we are suffering from a certain illness to the employer. Thus, we expect information not to get from the medical sphere into the economic sphere without good reason. SPHERES OF INFORMATIONAL JUSTICE: THEORETICAL PROBLEMS AND PRACTICAL ADVANTAGES If in the following I will point out to the theoretical problems coming along with such a concept of spheres, this is most of all due to the fact that I think they might prove to be very useful for practice, as I have already explained in some essays (2005a, 2006). Particularly, I do not think it is enough to simply refer to Walzer (1983). Theoretical problems The crucial problem with the conept of spheres is that we determine the number of relevant spheres and want to close them off from each other. Walzer (1983) dinstinguishes different social goods from each other, each of them being supposed to be equally distributed among the members of a society, according to their own rules and being as independent from each other as possible. One important premise in this context is that inequal distribution of a good among a society is not a problem as long as this does not result in considerable (dis)advantages in respect of any other good. As examples of social goods he gives a. o. “money, office, education, ... political power, [and] free time” (Walzer 1983: 184). Futhermore, it is important that he emphasizes that the question of what must be considered a social good within a community can only be decided on within a community. Having been critized of being relativist for this, in the preface to the German edition, written in 1991, he thus comments on this criticism by pointing out to having made clear particularly in “Just and unjust wars” that he supports a “minimum theory of human rights” (Walzer 1998: 14). As Walzer himself (1983) does not comment either on ICTs or on privacy, I would like to ask the question of how privacy is supposed to be included into this model. For this, there are at least three alternatives: 1) privacy itself is a social good, 2) privacy is a good being closely connected to one or several social goods, or 3) privacy is a human right. My project is less aimed at a clear solution of the problem but at stimulating a debate on embedding privacy into the model of complex justice. Practical advantages Finally, particularly because of these theoretical difficulties I would like to also speak about the practical advantages, while also discussing the connection between spheres and ITCs. While doing this I would like to discuss the significance of infrastructures (Star/Bowker 2006) for single spheres, particularly following my own thoughts (2005a, 2006) regarding the medical sphere. Another practical advantage might be in the fact that this way of understanding might serve as the basis for designing “artificial moral agents” which may not only be supposed to react while being dependent on the context and while doing so “should be able to make decisions that honor privacy ...” (Allen/Wallach/Smit 2006). CONCLUSION I think that the concept of spheres may be helpful for designing and developing ICTs which contribute to constructing spheres and guaranteeing their separation from other spheres. It may be that this model is a limited one. But in my opinion both the practical advantages for designing ICTs within certain spheres and the possibilities to analyze problems at the boundaries of the single spheres more closely suggest investing futher theoretical work with the sphere model of informational justice. REFERENCES Allen, C., Wallach, W., Smit, I. (2006): Why Machine Ethics? IEEE Intelligent Systems, 1541- 1672/06, pp. 12–17. Kuhlen, R. (1999): Die Konsequenzen von Informationsassistenten. Frankfurt am Main: Suhrkamp. Lessig, L. (2002): Privacy as Property. Social Research, Vol. 69, No. 1, 247–269. Nagenborg, M. (2005): Privatheit unter den Rahmenbedingungen der IuK-Technologie. Wiesbaden: VS Verlag. Nagenborg, M. (2005a): Datenschutz und der Verlust der Bedeutungslosigkeit. S. 61-71 in: Martin Woesler, Hrsg.: Ethik in der Informationsgesellschaft. Bochum: Europäischer Universitätsverlag. Nagenborg, M., El-Faddagh, M. (2006): Genetische Informationen: Eigentumsansprüche und Verfügbarkeit. In: International Review of Information Ethics. Vol. 5 (9/2006): Ethics of Information Technology in Medicine and Health Care. Nissenbaum, H. (2004): Privacy as Contextual Integrity. In: Washington Law Review, Vol. 79 (2004), S. 119-158. Philipps, D. J. (2004): Privacy Policy and PETs. In: New Media and Society, 2005, Vol. 6, No. 6, 691–706. Philipps, D. J. (2005): From Privacy to Visibility. Social Text 83, Vol. 2, 95–108. Star, S. L., G. C. Bowker (2006): How to infrastructure. In: L. A. Lievrouw, S. Livingstone (eds.): The Handbook of New Media. Updated Student Edition. London; Thousand Oaks; New Dehli: Sage. Van den Hoven, M. J. (1999): Privacy or Informational Injustice? In: Pourcia, L. J. (ed.): Ethics and Information in the Twenty-First Century. West Lafayette, Indiana: Purdue University Press, pp. 140–150. Walter, M. (1998): Sphären der Gerechtigkeit. Frankfurt am Main: Fischer TB 1998. Walzer, M. (1983): Spheres of Justice. New York: Basic Books. 
work_pkjfekftyrg3nlx6fxtubkmh24	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_pkkuvwc3z5ccrdg2ukmduhcasi	----	Fedora: 404 Not Found 404 Not Found No such object, datastream, or dissemination. [DefaulAccess] No datastream could be returned. Either there is no datastream for the digital object "uk-ac-man-scw:1b6904" with datastream ID of "null " OR there are no datastreams that match the specified date/time value of "null " . 
work_pr26scrozbgrdnwjmd4nyfla34	----	Within the framework of the EDUPLACES Project1, the arrival in June 2018 of the eminent teacher and researcher in education Sally Power from Cardiff University was an important opportunity, not only to benefit collectively from her presence as project consultant, but also, in a closer interaction, clarify some of her perspectives on the critical analysis on education and public policies. Sally Power works at WISERD (Wales Institute of Social and Economic Research Data and Method), where she directs WISERD Education, a research and training programme for Wales. Her main area of expertise is the relationship between education, civil society and inequality, as well as the relative success and failure of educational policies aimed at promoting greater equality of opportunity. She is particularly well- known for her work on introducing market reforms in England and in other countries, and on the relationship between education and the middle class. She investigates and publishes regularly on education policy, social mobility and intergenerational transmission; education in Wales; private education; longitudinal investigation. Her most recent publications also include research on the phenomenon of private tutoring and the relationship of third sector institutions with schools, higher education and the formation of elites. Her research activities include assessments for various policy makers (the Welsh Government, the Scottish Executive, the UK Government), voluntary sector associations (Shelter, Field Studies Council) and the UK Research Council (ERSC). Between 2011 and 2014, she directed the Network of Experts on Social Aspects of Education and Training (NESET/Network of Experts on Social Aspects of Education and Training), funded by the European Commission. Until this year, she was the editor of the British Educational Research Journal. Revista Portuguesa de Educação, 31(Número Especial), 92-102. DOI: 10.21814/rpe.15079 educação revista portuguesa de Inequalities and (in)justices in education: A dialogue with Sally Power Almerindo J. Afonsoi ArmAndo loureiroii JoAnA lúcioi 1 EduPlaces: Practices, Voices and Pathways of Inclusive Education (2016-2019) (PTDC/MHC-CED/3775/2014), financed by the Foundation for Science and Technology (FCT). 93A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) Almerindo J. Afonso (AJA): Professor Sally Power, you have an extensive experience as a professor and researcher, and the objects of your research have been almost always concerned with the issues of inequalities and difference. Can you tell us what are the most important consequences of the fact, noticed in your work, that there is a “naturalisation of inequality”? Sally Power (SP): First of all, thank you very much for your questions. Also, before I answer, can I just say how pleased I am to be here in the University of Minho, and how impressed I have been with some of the research that is going on. The issue of the “naturalisation of inequality” is something we have identified in relation to recent developments within the education community, to try and recognise inequality. We have always had inequalities and people have always, to some extent, argued that inequality is natural. But something has changed recently, and I think it has emerged out of various attempts to quantify the outcomes of education, to compare schools, to set targets, within an audit culture. So, if we look, for instance, particularly at England, in the 1980s we saw the emergence of league tables, which compared schools. So you would have a list with the most successful schools, that got the best results, at the top, and those at the bottom were those nearly always in the poorest areas. So, the schools at the top served advantaged students, and the schools at the bottom served disadvantaged communities. And, quite rightly, the education community said, “This is not fair; how can you compare the privileged with the disadvantaged?”. What we need to do is find another way of gauging performance and success in schools. So, a lot of the education community, and particularly education researchers from the left, wanted to valorise the achievements of teachers working in very disadvantaged schools. So they have argued, successfully, to gauge performance, not on outcomes, but on improvements, so that, particularly in England, we have many league tables which are not about the best schools in terms of outcomes, but in terms of the schools which have improved the most. The schools which have improved the most often are those serving poor communities. And while, in one sense, that is admirable, because we are recognising that teachers and schools serving disadvantaged populations have a very hard job on their hands. On the other hand, it creates a sense that they are doing very well, even though their children are not succeeding. For instance, now, every school has a target, and that target depends on what levels of difficulty your school is dealing with, and the target for a school with a lot of difficulties is much lower. So, in this way, we normalise inequality, and instead of measuring success in terms of actual credentials, we measure success in terms of whether we have met what was expected of us. So, any measure that talks about ‘valued added’ or about ‘improvement’ basically naturalises inequality. It says, “This is the best you can expect to do with this child”. Joana Lúcio (JL): Could you explain a bit more what sort of improvements we are talking about? 94 A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) SP: If we take the standard measure of success, which is, when you are sixteen, whether you have got a certain level of qualification, that is the crude aspect of success. But there are other tests, where you can measure how much improvement you have made from fourteen to sixteen. So, you may still have failed the test, but you did better than you did at fourteen. Because we track students very often, we can see if they are making progress. So even if they have made progress, but still not reached the threshold that for most people counts as a ‘success’, this is classed as an improvement. What happens when you have ‘value added’ performance tables is you hide the inequalities that count. So, it worries me that you say to schools that they are doing a very good job, they are doing a good job, but the outcome is still very unequal. JL: These children end up still being in disadvantage. SP: Yes, because a ‘value added’ result does not get you into University. You do not go to University because you have improved; you go to University because you made the required threshold. AJA: How do you think these issues equate with what Michael Young calls “powerful knowledge”, for disadvantaged classes? The criticism that children from disadvantaged classes do not have access to “powerful knowledge”, is it pertinent? SP: There is a relationship. What you are trying to explain is why we have the inequalities, which is a different issue, which is about cultural deprivation theories, and how you can democratise access to powerful knowledge without devaluing other knowledges. So, it is a different kind of issue, but I think it is related. JL: You mentioned the achievements of teachers, is that related to the ‘added value’ that you mentioned as well? SP: Because value-added comparisons and other contextualised league tables (that adjust according to will say how many students have free school meals, how many have English as a foreign language, how many have special educational needs) grade schools according to their improvement, rather than their overall results, you valorise what teachers do. JL: But is that the same for every school in the league tables? Do they all offer that contextual information? SP: A lot of them do, yes, and that is partly because people on the left have argued for it, quite rightly, but it has an unintended consequence, that is my point. AJA: What is your main criticism to this policy of differential assessment of outcomes? 95A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) SP: That it hides the inequalities that matter. Because what you are doing is marginalising the inequalities. You are saying that, actually, the ultimate outcomes are less important than the progress you have made. And I think, for the young persons’ lives, the ultimate outcomes are the most important thing, and the job of the research community is not to make teachers feel better about the fact that there are inequalities, it is to make them want to get rid of them, not to live with them. AJA: So this policy is a form of legitimation of inequalities? SP: Yes. Armando Loureiro (AL): You argue that economic, cultural and political injustices lead to different kinds of exclusion. My question is, in what ways do these different forms of injustice materialise in the field of schooling? In what way do these injustices produce exclusions in schooling? SP: I think it is very important to understand how complex things are, and although they come together often, analytically it is important to distinguish them, because sometimes, when you address one kind of exclusion, you create another problem. Everyone understands economic exclusion, so in some ways, governments and policies have been good at reducing some of the economic barriers that have excluded young people. Certainly, up to sixteen, nobody, I imagine, in Portugal pays for their schooling unless they want to go to a private school, so generally, economic barriers have been removed. Though of course there are still economic inequalities in the level of resources that schools have, often in the quality of teachers that are in poorer schools. So, there are still economic inequalities, but in terms of crude exclusionary aspects, to some extent you might argue that some of the superficial economic barriers have been removed, so that children can afford to go to school and education is provided free. Cultural exclusion is far more complicated, because it operates on so many levels. So, you might argue simply about teachers’ expectations, that they are raced and gendered and classed; you could argue that teachers carry partial versions of the world that mean they privilege particular learners; you could argue, as many people did in the 1970s, that the curriculum is culturally loaded towards ‘dead white males’ so that it has less salience for a large proportion of students. AL: Is this not what Bourdieu said? SP: Yes, that is true, exactly: that basically schools simply reward what students already have. So, from a Bourdieusian point of view, yes. As well as a Marxist point of view, a more conventional Marxist point, you could argue that. A lot of people talk about cultural deficit within the family, but you could argue that it is a product of economic injustice, as opposed to a cultural matter. Where cultural deprivation theories sit is problematic, because they sit between economic hardship and access 96 A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) to a different culture. You see political exclusion probably at almost every level of the system, so you might argue that the people who govern and control education are the educated, so it is very much a producer-controlled thing, from Universities downwards. And the extent to which we give control, in terms of really democratising the content and nature of schooling is very limited. You could say that all these different forms of exclusion are manifest in how we organise our education systems and the experience that young people get. I do not want to talk too much about compensatory education, but you can see that different policies have tried to address – very weakly, in some ways – different aspects of this. At the moment, certainly in the United Kingdom, a lot of the political emphasis is on the political exclusion of parents and children, so that they are given more power to start their own schools, to decide on their curriculum. In Wales, all schools, by law, have to have a student council that involves the students in decision-making. A lot of the reforms are about trying to address what you might call the lack of representation, but that does nothing, really, to address the other inequalities. So, it is complex, and some people argue that, by giving parents more decision-making powers, you actually make other things worse, which is the argument against choice and markets. JL: You mentioned something very interesting, which was about the parents setting up their own schools. Could you tell us a bit more about that? SP: In England, they are called ‘free schools’, and any group of parents can put together a case for opening a new school. They will get support from the Government. It can be any kind of school which the founders believe matches how they want their children to be educated. So, for instance, there are a whole variety of faith schools under this. We have a lot of faith schools in the state-maintained sector, anyway, in the UK. Now we have many Islamic schools, we have Hindi schools, Maharaji schools, Seventh Day Adventist schools… We have schools that pride themselves on being very disciplined… So, there is a whole variety of schools. AJA: Are these like charter schools? SP: Similar, but charter schools vary from State to State. Free schools do not need to have qualified teachers and do not need to follow the National Curriculum. JL: How does that work in the long term, do the children submit to national examination at some point? SP: I would think they do, because parents would want that. It is a very right-wing policy, because it implies that parents know better than the State and the professionals. JL: So you could have a school with no teachers, for example? 97A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) SP: They have to have minimum health and safety requirements and they get inspected to show they are not breaking the law, but yes, you could have a school with no trained teachers. AJA: One of the researchers participating in our project, Tiago Neves, recently published a paper2 reporting a longitudinal study, covering the past 30 years, analysing the results in schools that have been part of a national governmental programme, school-based, targeting schools in what were seen as disadvantaged contexts. The programme is diverse, so it targets different aspects of the schooling process, school dynamics, but mostly it brings additional resources to the schools: additional teachers in some situations, additional staff (psychologists, mediators, etc.). This programme has been in force for fifteen years, and what this paper shows is that this programme has had very little effect in the outcomes of these children and young people. That being said, can you explain why compensatory policies can deepen inequality? SP: I do not want to say that compensatory reforms make things worse – although we might want to argue there are problems about cultural deficit theories – but they certainly have not been hugely successful. It is possible that things might have been even worse without them; we do not know, because it is very difficult, usually, to get very good control measures for comparison. But they certainly have not had very good results, and it is difficult to know why, but I suspect none of them have brought enough extra resources in. If you look at the ones that I know best – which we have looked at – the resources would never have been enough to address the scale of the disadvantage at almost every level in the system, from the teachers to the resources in the home, to the resources in the school. The amount of money put into them was very, very tiny, compared with overall budgets. It is also the case – and we are just talking about economic injustices – that often the targeting is very crude, so if you are talking about even quite a small area, there will be more advantaged students in it than disadvantaged students. Actually, the geography of poverty is quite fragmented, and even in a school, there are very few schools where the majority of pupils are very, very poor. In our schools, we have an indicator, free school meals – which is kind of a benefit threshold – and very few schools at secondary level have more than 30%. So, the targeting is very crude: they are targeted at the particular individuals, and the level of resourcing is quite poor. As for your question, which is how do they make things worse, I think that if these interventions do not lead to measureable improvements, people think it the whole exercise is pointless. You can lose your optimism. You just think, “Why did I bother?”, and that is a very dangerous thing. But I suspect it is simply because they have never really tried hard enough. The interventions have been very small compared to the level of resourcing that is needed. If I think about Education Action Zones in England, much of the money went on things that were really not 2 Ferraz, H., Neves, T., & Nata, G. (2018). A emergência e evolução da educação compensatória na teoria e na prática: Fragilidades e possibilidades. Educação, Sociedade & Culturas, 52, 83-103. 98 A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) that essential. Sometimes, the resources are not used to give young people access to powerful knowledge. They might be used to set up various “therapeutic” classes or restorative justice programmes… They might be used for a whole range of things, but not about giving young people access to powerful knowledge. So, it is partly the scale of the resources and it is partly what they spend them on. AJA: So, can we say that what Basil Bernstein proposed, many years ago, that “education cannot compensate for society”, is still true? SP: I think the point he made was in a particular point in time. This is a difficult question, because he is right, he said, “If you have a compensatory policy, you need to know what you are compensating for; that implies there is a lack of something in the home”. Now, I do not have any problem with saying that a lack of resources in the home is a problem. Whether you call that a deficit theory, I do not know. I do not think that is a deficit theory; I think it is very difficult to argue that poverty is not a serious problem, and that if you live in a poor environment, in a very poor house, you may benefit from all kinds of close, connective, cultural, communal bonds, but you are not going to have access to the cultural resources that would enable you to get powerful knowledge. And I do not think that is a cultural deprivation thesis, I think that is acknowledging that poverty is bad. AL: Our next question relates to this issue: ten years ago, you wrote a paper where you stated that compensatory education policies have failed, arguing that the main reason behind such failure is not knowing exactly what we are trying to compensate for. How are we doing today in relation to this matter? Do compensatory education policies attain better outcomes today than ten years ago? Why? SP: I have a number of answers to this. Overall, in some ways we might be doing better with specific policies, and I can talk here about, for instance, in Wales, where we have a pupil deprivation grant, which is very focused. And, in some schools, that makes a difference, but only in some schools. System-wide, we are not doing much better. Individual schools might do better, if they are very clear in what they are using the money for. So, it has made some difference, though how sustainable it is, and how scalable it is, is unclear. What I think really frustrates me about a lot of interventions today is that the thing they are compensating for seems to be low expectations and low self-esteem. And that, I think, is a real distraction, and I can see people focus on it because it is cheap. It is much easier to talk about raising a young person’s self-esteem than it is to give them access to a rich intellectual curriculum, but there is little evidence that raising self-esteem makes any difference to outcomes. There has been research that has tried to link raising expectations and aspirations to outcomes, but the link is not strong. We look at disadvantaged communities and think, “If only they had higher aspirations, they would be alright”, and of course it is just not true. I think the current emphasis on raising aspirations and self-esteem is a dangerous distraction, because 99A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) it will not make any difference. And I suspect that their aspirations are realistic; it is not that they are artificially low, they are realistic. I think that is another example of blaming the poor: “That is your fault, because you are just not aspiring high enough”. That is where I think we are doing even worse; some things we are doing better, but the focus on esteem raising is a distraction. AL: And in those few, selected cases where there have been improvements, why do you think that was? SP: I do not know, but some schools seem to be doing something that makes a difference. AL: Why is this not scalable, why has it not trickled down? SP: It is partly unique, and we need detailed, very micro-level research, a bit like you are trying to do here, to look at actual processes. I am a governor of a school which has significant levels of disadvantage, where they did make a difference; they did manage to reduce the attainment gap, with their pupil deprivation grant, and some of the money they spent on school uniforms. But I would not want to suggest that as a policy, so it is difficult to know what little things make a difference. If it is buying every young person a blazer, give them something and make them feel more like a scholar or a student… But I cannot see that being a national policy that works. It could have the opposite effect, so it is difficult to look at a little thing that seems to work and then adopt it nationally. AJA: Do you think that in these few successful cases, resilience has played a role? SP: I do not know, because nobody knows what ‘resilience’ is. It is a word like ‘well- being’, that we use a lot to describe something we cannot really understand, but we do not know where it comes from or how to build it. It is just a recognition that there is something, but what it is, we do not know. AJA: It is more of a psychologistic explanation than an sociologistic one. SP: Yes, but it does not mean anything. When you ask them what it is, each person has a different understanding. AL: Following the democratisation of schooling systems, there was an expectation that the school would be a decisive factor for social mobility. As you see it, has the school played such a role? Why? SP: Yes, I think there is no doubt that schooling has played a part in increasing social mobility. The fact that we do not have a perfectly socially mobile system does 100 A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) not mean that it hasn’t made a difference. There is absolutely no doubt that the democratisation of schooling has enabled people from disadvantaged backgrounds to go into middle class and better positions. Of course, some of that has to do with the change in the class structure as well, so that we have more room in the middle than we did 60 or 70 years ago. Part of it has to do with the change in labour market, so that there are more openings; part of it has to do with fairer forms of accreditation. I know that Bourdieu is right about cultural capital, we know there are biases and we know there is privileging of the already-privileged; but there is a lot of movement up and down, and between and within social classes. What education is very good at is protecting downwardly mobile middle class, but it does enable working class students to become upwardly socially mobile. I think the problem is not, “Does it help or does it not?”, but “Do we want a complete meritocracy?”. A meritocratic society is a very depressing place, in many ways; a meritocracy can be more unequal than the society we have now. We talk about meritocracy as the goal, but I would rather have a more equal society, even if it is a bit less meritocratic. So, I do not worry so much about social mobility, and I am less worried about meritocracy; I am more worried, simply, about the scale of inequalities. You could have a very meritocratic society, with complete social mobility, but huge levels of inequality; and it might be socially mobile in that somebody from the bottom could go all the way up to the top, but it is still hugely unequal. I think it is unlikely that would happen, because we know that privilege protects itself quite well, but I would rather worry less about social mobility and more about absolute levels of inequality. That is a preference that people have, they are just different versions of what kind of society you would like, but I think certainly, in general, schools have helped with social mobility. I think it would be very hard to argue otherwise. Certainly, they do legitimate inequalities, but they do also create opportunities. JL: And do they protect power, as you said? SP: Yes. The middle class parents are good at protecting the social class positions of their children, even if they do not do well in school. So, what it actually shows is that, perhaps, education is not the only factor in social mobility. If you are poor, you need education to do well; if you are middle class or affluent, education is not so important. We see this is terms of race and ethnicity as well, that black children who do well will still not get as good a job as white children who do well; there is a race penalty. So, it is a factor in mobility, but the labour market is also a problem, because it does not value qualifications equally; it values the white person with the same qualification as better than a black person. But I still would not argue that education has no role in it. AJA: In some of the practices in our study, the representativeness of the Roma community is fairly high, so the issue of Roma students is very important. In the past few years, in Portugal, there have been some changes in educational policy and one of them has been that preschool has become compulsory for children at the age of 101A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) 4. This means that, because Roma children are starting their schooling earlier, there will more of them, later on, in primary and secondary schools. From our point of view, this poses an issue also at the level of teacher training, in that teachers are not prepared to handle these children. Although you may argue that might be the case for foreign children as well, for example, or children from religious minorities, but it is especially true for Roma children. Some of the children and young people that we engaged with, in our focus groups, were very clear in how they experienced racism from teachers. As a researcher, how would you address this, how would you explore this with these children? SP: This is a hard question. It is difficult. Obviously – and I am sure you did – I would ask them how they would like to be treated. And I suspect they would say something like, “We want to be treated with respect”. But then you would ask what it is that you want respected, and then you get to the hub of the issues about cultural differences. And if they say to you, “We want you to respect the fact that we do not always want to come to school”, or “We want you to respect the fact that we want to get married at 13”, then that immediately creates an issue, and it is one which is probably not very easily resolvable if you have a position that values particular individual rights. There are a whole lot of philosophical issues, which I am not really equipped to judge, about how you balance individual rights, the rights of the child, with familial rights, with community rights, with the rights of the State. But it seems to me that there is an incompatibility there, and I do not think, necessarily, that respect is achievable if you do not respect those rights. Clearly, there will be racism which is just unacceptable, and we are talking about the kind of crass racism; we will take it that that is completely unacceptable. But it is how you deal with a genuine conflict of cultures and values, and I think that is a discussion you would have to have with them, because, ultimately, do we respect their right to not come to school? AJA: What do we do, then? SP: There are similar issues that are very prevalent, particularly in England, with some of the Muslim schools; particularly, some of the free schools or the private schools for young Muslim children, where they have been taken to court. Firstly, they will separate the boys and the girls, and there is some evidence that they will give a superior education to boys, and not let the girls do the same things. But they also teach very homophobic attitudes, and some of these schools have been taken to court, for teaching homophobic and hate preaching. Now, when it breaks the law, it is easy to hold a line, but it is not very culturally sensitive. I think this is where cultural recognition does not work, because recognising difference in a superficial way is problematic. I would want to have a conversation with these Roma children. AJA: Would it be important, in terms of teacher training, to have specific training for recognition and difference, and so on? 102 A Dialogue with Sally Power Revista Portuguesa de Educação, 31(Número Especial) SP: Yes. AJA: We do not have that kind of appropriate training. Teacher training, in Portugal, is very focused on didactics, core curriculum. And racism against the Roma community is ingrained in Portuguese society. SP: Yes, so there is racism and then there are fundamental cultural incompatibilities, and they are not necessarily the same thing. It is the same with issues around Islam; that there is certainly islamophobia, but it does not mean there are not also cultural incompatibilities, and the two get put together when that should not happen. i Research Center of Education (CIEd), University of Minho, Portugal ii Centre for Research and Intervention in Education (CIIE/UPorto); University of Trás-os-Montes e Alto Douro/UTAD, Portugal 
work_prcoxyhkejcttaasf2kemmuxaa	----	BA360518.pdf Books 834 October 2011 / Vol. 61 No. 10 www.biosciencemag.org The specialist, however, in read- ing a book that aims at “covering everything” about fishes, cannot avoid detecting that the presentation of cer- tain concepts could be misleading. The evolution and the classification of fishes (addressed in chapter 1) are topics that strike me as especially dar- ing. The problem with questions such as What is a fish? and How are fishes classified? is that the overlapping use of the concepts of fishes and classifica- tion seems a contradiction. Once Weis acknowledges that classifications are phylogeny-based, an explanation for the omission of the group fishes in the classification of fishes presented might be appropriate. A group in a phylogeny-based (cladistic) clas- sification is required to include all the descendants from the most recent common ancestor (in this case, the ancestor of all vertebrates). Therefore, if the group fishes is accepted, it would include tetrapods. We are fish in the same way that birds are dinosaurs. (Systematists eventually got rid of the name fishes and kept the more neutral one, Vertebrata.) I am not against using the group fishes in an ecological context. I wonder, however, if Weis is not underestimating the ability of her readers to understand their own tree of life. In addition, the mention of interest- ing research studies makes the process of science more real to the reader, but Weis sometimes fails to include scientists’ names. I assume she also opted, for the sake of maintaining a nonacademic style, to omit citations and footnotes from the book, which I personally miss. An appendix with supporting literature is added in each chapter; however, it is not always clear which content they refer to. The book closes with a chapter on research (Why do people study fishes?) and one on conservation (What can we do to protect fishes?), in which Weis summarizes the ethical, aesthetic, and practical reasons for caring about the future of fishes and their ecosystems. Why do we need books for the general reader like Do Fish Sleep? I believe sci- entists play an increasing role in elicit- ing public awareness and changes of attitude. Weis’s new book is a valuable contribution toward that goal. ADRIANA E. AQUINO Adriana E. Aquino (aaquino@amnh. org) is a resident research associate in the Department of Ichthyology at the American Museum of Natural History in New York City. WHERE IS THE BALANCE OF JUSTICE? Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. Sheldon Krimsky and Tania Simoncelli. Columbia University Press, 2010. 448 pp., illus. $29.95 (ISBN 9780231145206 cloth). It is obvious from the title that this is not a book on the structure or function of DNA but on its recent use in seeking evidence of criminality. By comparing the short-tandem-repeat sequences of DNA obtained from a crime scene with the DNA of any person who may have been implicated in the purported crime—and who has been required to deposit his or her DNA for database filing—crim- inal forensics can strongly implicate the person as being present at the crime scene with any banding match. DNA testing in the United States basi- cally involves the separation of bands of DNA from 13 loci of the human genomic DNA. Different countries use a different number of loci to deter- mine a genetic match. Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liber- ties is composed of 18 chapters in three parts. Part 1 surveys various aspects of forensic DNA collection, analysis, interpretation of the match, and DNA banking. These chapters are replete with historical evidence that clearly reveals how the simple contamination of “isolated” DNA samples by forensic technicians using swabs at the crime scene can result in false and mislead- ing evidence. The book also questions whether it is judicious or even legal to collect—sometimes under intimida- tion—and store DNA from juveniles (or people who were arrested for mi- nor offenses but never convicted of a crime), thus empowering law enforce- ment and its surveillance machinery. Authors Sheldon Krimsky and Tania Simoncelli provide thought-provoking examples of the protection rights of citizens at risk because of their soci- etal status or lifestyle. They disclose that some law enforcement personnel exhibit an utter disregard for civil lib- erties by conducting “DNA dragnets,” in which the DNA is collected from a large number of people reputedly having a pattern of clashes with the law in an attempt to solve crimes with no distinct leads. The quality of the process of DNA analysis is also ques- tioned, and poor work habits and a lack of technical skills, quality control, and accuracy in the interpretation of DNA data are noted. An important and contentious issue described in chapter 4 involves the familial searching of databases. Familial searching has indeed resulted in many instances in which DNA pro- files of family members that were in a database led to the exact match of a relative who proved to be the actual perpetrator of a crime but whose DNA profile was not in the database. In these cases, near matches led to complete matches. To illustrate the favorable aspects of using DNA within the criminal justice system, the authors offer examples of many once-unsolved murder cases that occurred before the advent of the DNA test, wherein the culprits were caught 20 or 30 years after the crime by a DNA match. Court cases are also cited, however, in which DNA was obtained surreptitiously from sus- pects, which raises questions about the legality of obtaining such samples for the sake of solving murder or rape cases. These anecdotes and reports are insightful in that they cause us to doi:10.1525/bio.2011.61.10.18 www.biosciencemag.org October 2011 / Vol. 61 No. 10 835 Books question to what extent law enforce- ment officers and crime scene inves- tigators have the right to use whatever methods they can to collect DNA samples. How do these rights weigh in the balance of justice when compared with the rights of crime suspects, who most likely would not willingly allow their DNA to be used under any cir- cumstances? Citing the work of the venerable Innocence Project, Genetic Justice presents interesting examples of cases in which DNA testing exonerated wrongly convicted people, but the book also notes the limits of such exoneration attempts and, in so doing, spotlights the vulnerability of our criminal justice system. According to the Innocence Project, 22 percent of their appealed cases between 2004 and 2008 were terminated prematurely because the DNA evidence from the crime scene was no longer available. Many states have no statutes requiring the preservation of evidential DNA from various offenses after the com- pletion of initial court procedures. Also included are instances of DNA being inadequately stored for long- term preservation, leaving its exculpa- tory potential thus eroded. Should we have a universal DNA database, or at least DNA profiles from people arrested even for minor offenses in order to enrich the genetic pool for more effective testing? Cer- tainly, many states in the United States now have laws that allow DNA collec- tion upon arrest, not necessarily upon conviction. Should this forensic DNA collection be expanded to all those liv- ing in (or visiting) the United States? Should their DNA be automatically included in the Combined DNA Index System database? Although the book argues both sides of this proposal, it does point out the following: Many acts of crime do not necessarily leave a sample of DNA behind; DNA profiles may be racially biased to include more minorities; and since death penalties have not led to reduced crime rates, it is also not likely that constructing these all-encompassing DNA databases will deter criminals. The US Constitution’s Fourth Amendment, which describes the right against unreasonable search and seizure, has also been invoked in cases involving people who are un- willing or fearful to have their DNA in a database, universal or not. In- deed, a universal database, aside from creating biobanks of human tissue, portends other implications besides DNA profiling for criminal activity, including determining a predisposi- tion to genetic diseases, one’s heritage, phenotypic characteristics, and the most questionable of all, the propen- sity to commit acts of aggression and violence. Part 2 surveys the current status of forensic DNA data banking, including aspects of eugenics, in five nations: the United Kingdom, Japan, Austra- lia, Germany, and Italy. The United Kingdom has the world’s largest DNA database (the UK National DNA Database) and has fewer homicide cases (1.5 for every 100,000 people) than the United States (5.7 for every 100,000 people). In the United King- dom, DNA can be collected from any- one who has been arrested, with or without conviction, and stored in- definitely. Familial searches are com- mon but controversial. Japan’s DNA database is much smaller than that of the United Kingdom. The book cites a shocking example of a person in Japan who was wrongly convicted of the rape and murder of a little girl because of faulty DNA testing and who was released after spending 17 years in prison. The nature of DNA database operations, the limits to police power, and the concerns of pri- vacy and civil liberties are briefly dis- cussed with regard to other countries, such as Australia, Germany, and Italy. Regarding the United States, however, issues of privacy, personal rights, the Fourth Amendment—as well as the racial disparities in forensic DNA data banking and throughout the criminal justice system—are thoroughly and extensively debated. Part 3 focuses on the fallibility of DNA testing. DNA testing is faulty not because the principle of DNA profiling is faulty but because human error affects the handling, labeling, and interpretation of DNA samples. An ample number of court cases are cited in the book to raise concerns about the judicial decisions made solely on the basis of DNA profile matching. In all, the authors appear to dictate a cautionary approach to DNA testing in order not to allow an innocent person to fall victim to a prejudicial or imperfect procedure— and such a procedure can include faulty DNA testing. The concept of universal justice is the presumption of innocence until a judgment of guilt is produced. According to Genetic Justice, current DNA testing is not error free or robust enough to meet this high standard and needs contin- ued refinement. It is also the recom- mendation of this book that strict guidelines be followed with regard to how and from whom DNA samples should be collected. To be determined is what role the judiciary should play in this process. Thoroughly researched and well referenced, Genetic Justice distin- guishes itself as an interesting and in- formative book on the history of the development of DNA testing, forensic DNA databanks, and the justice sys- tem’s evolving approaches to identify- ing and prosecuting criminals (and to rescuing the wrongly convicted). By not addressing other contentious is- sues, such as the patenting of human genes or gene mutations, that are more applicable to the fields of medi- cine and public health, this book is more highly recommended for those Books 836 October 2011 / Vol. 61 No. 10 www.biosciencemag.org with a special interest in the potential of DNA testing in our criminal justice system. ANANDA M. CHAKRABARTY Ananda M. Chakrabarty (pseudomo@ uic.edu) is a distinguished university professor in the Department of Microbiol- ogy and Immunology in the College of Medicine at the University of Illinois in Chicago. NEW TITLES Algorithms in Structural Molecular Biology. Bruce R. Donald. MIT Press, 2011. 459 pp., illus. $65.00 (ISBN 9780262015592 cloth). Aloes: The Definitive Guide. S. Carter, J. J. Lavranos, L. E. Newton, and C. C. Walker. Kew Publishing, 2011. 719 pp., illus. $160.00 (ISBN 9781842464397 cloth). The Angler in the Environment: Social, Economic, Biological, and Ethical Dimensions. T. Douglas Beard Jr., Robert Arlinghaus, and Stephen G. Sutton, eds. American Fisheries Society, 2011. 365 pp., illus. $79.00 (ISBN 9781934874240 paper). Avian Architecture: How Birds Design, Engineer, and Build. Peter Goodfellow. Princeton University Press, 2011. 160 pp., illus. $27.95 (ISBN 9780691148496 cloth). Basic Confocal Microscopy. Robert L. Price and W. Gray Jerome, eds. Springer, 2011. 302 pp., illus. $189.00 (ISBN 9780387781747 cloth). Biological Notes on an Old Farm: Exploring Common Things in the Kingdoms of Life. Glenn B. Wiggins. Royal Ontario Museum, 2008. 352 pp., illus. $45.00 (ISBN 9780888544636 cloth). Biology, Management, and Culture of Walleye and Sauger. Bruce A. Barton, ed. American Fisheries Society, 2011. 570 pp., illus. $79.00 (ISBN 9781934874226 paper). Handbook of Molecular Microbial Ecology I: Metagenomics and Com plementary Approaches. Frans J. de Bruijn. Wiley, 2011. 784 pp., illus. $299.95 (ISBN 9780470644799 cloth). Handbook of Molecular Microbial Ecology II: Metagenomics in Different Habitats. Frans J. de Bruijn. Wiley, 2011. 640 pp., illus. $299.95 (ISBN 9780470647196 cloth). A Perfect Moral Storm: The Ethical Tragedy of Climate Change. Stephen M. Gardiner. Oxford Uni- ver sity Press, 2011. 512 pp., illus. $35.00 (ISBN 9780195379440 cloth). Spatio-temporal Heterogeneity: Con - cepts and Analyses. Pierre R. L. Dutilleul. Cambridge University Press, 2011. 416 pp., illus. $57.00 (ISBN 9781107400351 paper). Structural Biology Using Electrons and X-rays: An Introduction for Biologists. Michael F. Moody. Elsevier (Academic Press), 2011. 450 pp., illus. $89.95 (ISBN 9780123705815 paper). The Theory of Ecology. Samuel M. Scheiner and Michael R. Willig, eds. University of Chicago Press, 2011. 416 pp., illus. $40.00 (ISBN 9780226736860 paper). Who’s In Charge: Free Will and the Science of the Brain. Michael S. Gazzaniga. Harper Collins, 2011. 272 pp., illus. $27.99 (ISBN 9780061906107 cloth). doi:10.1525/bio.2011.61.10.19 How to Contact AIBS BioScience Advertising, print and online: adsales@ucpressjournals.com Classified advertising: jwilliams@aibs.org 703-674-2500 x. 209 Online: www.aibs.org/bioscienceonline Permissions: www.ucpressjournals.com/ reprintinfo.asp Publisher: rogrady@aibs.org 703-674-2500 x. 258 Submission inquiries: tbeardsley@aibs.org 703-674-2500 x. 326 Subscriptions: Individual admin@aibs.org 703-790-1745 Subscriptions: Institutional customerservice@ ucpressjournals.com 510-643-7154 AIBS ActionBioscience.org: tbeardsley@aibs.org 703-674-2500 x. 326 Education Office: smusante@aibs.org 703-674-2500 x. 311 Executive Director: rogrady@aibs.org 703-674-2500 x. 258 Meetings and Conference Services: sburk@aibs.org 703-790-1745 Membership Records: admin@aibs.org 703-790-1745 Membership and Community Programs: spotter@aibs.org 941-923-6320 Public Policy Office: rgropp@aibs.org 202-628-1500 x. 250 Scientific Peer-Review Services: sglisson@aibs.org 703-674-2500 x. 202 Web/IT Services: jwagener@aibs.org 703-674-2500 x. 107 
work_pry3xdfvubdgjmle4hrldtf2oe	----	Health tsars: more like Peter the Great than Ivan the Terrible In 1999 the Department of Health appointed the first of nine health tsars to help shape a variety of services from primary care to cancer, heart disease, and services for children and older people. This was the first time clinicians could direct change at a national level from a department of the government. Five years down the line Burke (p 126) asked them to summarise their achievements and other people to assess their work. In an accompanying editorial Burns (p 117), the former cancer tsar for Scotland, tells us what it takes to be a tsar: be open to ideas and have money to spend, but also be ready to take jealousy and hostility from some of your colleagues. Editor’s choice Doctors mangled by “justice” This morning I spent three hours in the chambers of a Queen’s Counsel. It was like a stage set. The open fire crackled. The view over the 18th century lawns was magnificent. The room was lined with leather bound reports from the appeal courts of the 1890s. It was impossible not to be impressed by the forensic precision of the lawyers’ minds, and we all had a lovely time. But many doctors’ experiences of the law are nothing like this Georgian arcadia but rather a brutal mangling. I’ve read of two such cases this week. The first was in JAMA and described the case of a family physician in an American academic centre who saw a 53 year old man for the “routine physical” that is common in the United States but uncommon in Britain (2004;291:15-6). The physician and patient discussed the possibility of measuring the man’s prostate specific antigen. The easy thing would have been to simply order the test. Instead, the physician opted for the modern model of patient partnership. He explained the pluses and minuses of the test, and the fully informed patient decided against. Three years later the physician was sued because the patient had developed metastatic prostate cancer and died. The physician was exonerated, but his academic programme is liable for a million dollars. This story is likely to strike terror into many doctors. “This could easily have happened to me,” might be the first thought. “It’s so unjust” might be a second: “The doctor goes to all this trouble, practising medicine in the way we teach now—and still gets screwed.” Then there are the implications for practice across the United States. Many patients—often prompted by the media—are asking to have their prostate specific antigen measured. Will doctors discuss with them the risks and benefits of the procedure—or will they simply suggest that the patient has the test? The “villain” in my second story is less the law and more the media. The Daily Mail last week carried the headline “The killer doctor back working in hospital” with a picture of the doctor (7 January, p 5). The doctor had been found guilty of manslaughter for failing to diagnose a knee infection that complicated surgery and led to the death of a young man. “He escaped a jail term after his barrister pleaded that his career was in ruins,” reports the newspaper; and he was not struck off by the General Medical Council. The doctor has now been re-employed in a training position, greatly upsetting the father of the young man who died. “I don’t think,” says the father, “there is any normal human being in this country who would say this is right.” To suggest that anybody who thought it was right—including the courts, the GMC, and the employing authorities—are not “normal human being[s]” may be strong, but it’s understandable and excusable in a bereaved father. What is inexcusable is to report the story in a national newspaper. Richard Smith editor rsmith@bmj.com POEM* Earlier mobilisation improves pneumonia outcomes Question Does early mobilisation improve outcomes in patients with community-acquired pneumonia? Synopsis Everyone looks healthier sitting up, don’t they? Previous studies of myocardial infarction and orthopaedic procedures have shown improved outcomes with early mobilisation. These researchers applied that thinking to hospitalised patients with community acquired pneumonia. Patients (n = 458) admitted to 17 general medical units were randomised by medical unit to early mobilisation (encouraged to get into an upright position for at least 20 minutes during the first 24 hours of hospitalisation, with progressively increased mobilisation thereafter) or usual care. A large variety of variables and outcomes were measured, but the primary outcome was length of stay. Groups were similar at baseline; approximately 25% were younger than 50 years and 25% were older than 80 years. Most received their antibiotics within eight hours. The mean length of stay was lower for the early mobilisation group (5.8 v 6.9 days; 95% confidence interval 0 to 2.2). The results were stratified by the pneumonia severity index (PSI) score, where I is the lowest severity (what were they doing in the hospital in the first place?) and V is the highest severity. The greatest difference in length of stay occurred among the 86 patients with an intermediate PSI score of III (4.9 v 7.4 days; 0.2 to 5.0), and the authors speculate that patients who were less sick were going to get better quickly whether they were lying down, sitting up, or standing on their head, while those who were most sick were less likely to benefit from this simple intervention. There was no difference between groups in the risk of death or readmission. Bottom line Early mobilisation, beginning by having patients sit up for at least 20 minutes in the first 24 hours after admission, reduces the length of stay for patients with community acquired pneumonia. Level of evidence 1b (see www.infopoems.com/resources/ levels.html). Individual randomised controlled trials (with narrow confidence intervals). Mundy LM, Leet TL, Darst K, et al. Early mobilization of patients hospitalized with community-acquired pneumonia. Chest 2003;124:883-9. ©infoPOEMs 1992-2003 www.infoPOEMs.com/informationmastery.cfm * Patient-Oriented Evidence that Matters. See editorial (BMJ 2002;325:983) T O P H A M P IC T U R E P O IN T To receive Editor’s choice by email each week subscribe via our website: bmj.com/cgi/customalert BMJ VOLUME 328 17 JANUARY 2004 bmj.com o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B M J: first p u b lish e d a s 1 0 .1 1 3 6 /b m j.3 2 8 .7 4 3 2 .0 -g o n 1 5 Ja n u a ry 2 0 0 4 . D o w n lo a d e d fro m http://www.bmj.com/ 
work_ptr7cfrufrhxfnlkxvqbt3s5ne	----	Accessibility for Justice: Accessibility as a Tool for Promoting Justice in Librarianship – In the Library with the Lead Pipe Skip to Main Content chat18.webcam Open Menu Home About Awards & Good Words Contact Editorial Board Denisse Solis Ian Beilin Jaena Rae Cabrera Kellee Warren Nicole Cooke Ryan Randall Emeritus Announcements Authors Archives Conduct Submission Guidelines Lead Pipe Publication Process Style Guide Search Home About Awards & Good Words Contact Editorial Board Denisse Solis Ian Beilin Jaena Rae Cabrera Kellee Warren Nicole Cooke Ryan Randall Emeritus Announcements Authors Archives Conduct Submission Guidelines Lead Pipe Publication Process Style Guide Search 2017 Nov 29 Stephanie Rosen /0 Comments Accessibility for Justice: Accessibility as a Tool for Promoting Justice in Librarianship In Brief Recent critiques of diversity in higher education and librarianship by Stewart (2017), Hudson (2017), and Hathcock (2015) have encouraged a critical shift away from diversity talk and initiatives, towards attention to equity, anti-racism, and whiteness. They point out that diversity initiatives often fail to address deeper power imbalances, and they offer new language for the effort to make our institutions more just. This essay offers another term for that effort: accessibility. Linked to legal discourses of compliance on the one hand and to library values of access on the other, accessibility is rhetorically very useful. It is also historically complex and politically powerful. The Americans with Disabilities Act (1990) was achieved through coalitional activism that reflects the intersectional nature of disability and, because the law prohibits discrimination by design, it demands active design agendas that stand to benefit people with and without disabilities—and marginalized people in particular. Librarians committed to justice can use accessibility as a starting point to change our institutions. by Stephanie Rosen Introduction Recent critiques of diversity initiatives in higher education have encouraged a shift: away from individual acts of inclusion and celebrations of difference, towards transforming the policies, cultures, and conditions of our institutions. Writers from the library to the professoriate have shown how current efforts make minor changes but maintain larger, structural barriers, and several of these writers have suggested a way out of this problem by offering a change in language. Stewart (2017), Hudson (2017), and Hathcock (2015) argue for a critical shift away from conversations and initiatives about diversity and towards interventions focused on equity, anti-racism, and whiteness, respectively. All point out the paradoxical ways in which diversity (and sometimes inclusion) initiatives actually require the deeper power imbalances they fail to address, and each writer provides a new, alternate term to replace diversity. All of them are right. In the effort to make academic institutions more equitable and just, we need all the language we can get, just as we need a range of strategies. We ought to use all the rhetorics at our disposal. Yet a change in language will not solve our challenges once and for all. The work we do in the name of diversity and inclusion, or did in the name of equal opportunity and affirmative action, is always evolving and always greater than the terms we use, each of which have unique strengths—rhetorical, historical, and political—to offer our efforts. In this essay I’d like to offer another term for use in this work: accessibility. Like diversity, accessibility is unique in that people often agree on its value (accessibility is good, we are committed to accessibility) but may disagree on its meaning (is this accessible? how do I make that accessible?). This quality, as well as its links to legal and technical discourses of compliance on the one hand and to library values of access on the other, makes accessibility rhetorically very useful. Promoting access is a core value in librarianship, and many in the profession are aware that we are supposed to promote accessibility. In addition to its rhetorical usefulness, accessibility has a more complex history and politics than at first glance. The Americans with Disabilities Act of 1990 (ADA), which mandates accessibility, was achieved only through coalitional activism that reflects the intersectional nature of disability. Even today, while disability is said to “affect everyone,” it still disproportionately affects people of marginalized racial, socioeconomic, and gender identities. Centering the needs and experiences of people with disabilities can therefore be a way of practicing social justice. And because the ADA prohibits discrimination by design, it requires active design agendas that stand to benefit people with and without disabilities, and marginalized people in particular. Accessibility is not the only term we need in making academic institutions more equitable and just. Yet its enormous potential becomes apparent when we consider the wide reaching consequences of accessibility, the intersectional nature of disability, and the coalitional history of disability activism. What’s wrong with diversity? Recent critiques of diversity in higher education and librarianship by Stewart (2017), Hudson (2017), and Hathcock (2015) have encouraged a critical shift away from diversity talk and initiatives, and towards attention to justice, anti-racism, and whiteness. While none of these writers opposes the basic aims of diversity—“to diversify and thereby enrich the [library] profession” (ALA) or to create “responsible and all-inclusive [library] spaces that serve and represent the entire community” (ACRL)—all of them explain that the basic methods of diversity often maintain the status quo. Stewart (2017), writing about institutions of higher education in general, cautions that diversity and inclusion have too successfully appeased powerful donors and student protesters alike, fooling us all with a false sense of progress while avoiding real transformative change. A shift to equity and justice, Stewart explains, would realign campus efforts with the original “goals of the student activists of the 1960s through the 1980s.” Stewart puts faith in equity and justice to ask tougher questions and push more radical agendas: Diversity asks, “Who’s in the room?” Equity responds: “Who is trying to get in the room but can’t? Whose presence in the room is under constant threat of erasure?” Inclusion asks, “Has everyone’s ideas been heard?” Justice responds, “Whose ideas won’t be taken as seriously because they aren’t in the majority?” (Stewart, 2017) The warning here is that mere attempts to “include diverse perspectives” will not lead to questions about why certain perspectives are dominant, or why certain people are in power. Without the impetus to question dominant perspectives, there is little opportunity to change them. Hudson (2017) offers a critique of diversity and inclusion initiatives in LIS degree programs and professional library associations. In spite of decades of research on “race as a historically contingent phenomenon” (p. 1), Hudson points out that LIS diversity discourses rely on a relatively simple and stable version of race. Degree programs are often preoccupied with identifying and counting racial minorities among their student body. Programs are therefore less attuned to questions of how racial formations are produced in the first place, and how LIS as a field may participate in this production. Furthermore, a focus on individual cultural competence—overcoming “individual attitudes and (mis)understandings through education” (Hudson, p. 18)—precludes more structural approaches to reform. Hudson wishes to inject the limited anti-racism of library diversity initiatives with the power of critical race theory so that the profession can participate in a broader “inquiry into the specific ways in which race is constructed” and more effectively reform itself (p. 19). Hathcock (2015) focuses on whiteness, not only of the profession itself (which is over 85% percent white [Bourg, 2014]), but even of the diversity initiatives ostensibly designed to alter the demographics of the profession. For Hathcock, drawing on Galvan (2015) and Hall (2012), “whiteness refers not only to racial and ethnic categorizations but a complete system of exclusion based on hegemony.” Whiteness is what’s “at work when a librarian of color is mistaken for a library assistant by white colleagues at a professional conference”; whiteness is why LIS diversity initiatives have onerous application requirements; and whiteness is what is recruited, promoted and retained as a result (Hathcock). Hathcock argues that LIS recruitment for diversity is not working because the conditions of our recruitment select for only those “diverse” candidates who can “play at whiteness.” All librarians, regardless of their bodies or their backgrounds, are expected to conform to social, political, and professional norms traditionally associated with whiteness, all of which leads to the reproduction of the same librarians and library cultures and the attrition of librarians who are different. These critiques of diversity probably ring most true for those of us most committed to diversity. Ahmed (2012) has shown that “diversity practitioners”1 are already aware that writing institutional diversity statements, policies, and documents can often get in the way of changing the institutions. Even worse, exemplary diversity policies may lead to false assumptions of exemplary conditions for diverse people, even causing institutions to ignore or underestimate evidence to the contrary (Chapter 5). Yet Ahmed’s interview subjects also explain that although the term may be “an empty container” (p. 80), it can be used strategically in multiple ways “to get people to the table” (p. 67) . In what follows, I look at what’s inside the term accessibility and how it may likewise be used. What is accessible? Legal definitions and political potential When someone asks you if a library is accessible, you may begin to think about entrance ramps and elevators, or screen magnifiers and large print, or video captions and ASL programming. In short, you may begin to think about whether the library’s spaces, collections, and services are “readily accessible and usable to people with disabilities” (ADA, 1990). This phrase appears repeatedly throughout the text of the Americans with Disabilities Act. It can serve as a preliminary definition of accessibility, but it also introduces a slew of questions. For example: 1. What does “readily accessible and usable” mean in different contexts? What might it mean for physical spaces, online resources, interactive events? 2. Who are “persons with disabilities” and what specific needs do they/we bring to library contexts? The first question is addressed by a body of literature and documentation known as standards. We have the 2010 ADA Standards for Accessible Design, which describes architectural requirements for physical access. In the digital realm, we have the Web Content Accessibility Guidelines 2.0, which describes principles and criteria for accessible digital content and links to associated standards that describe criteria for interactive web applications, digital authoring tools, and electronic publications (ARIA, ATAG, EPUB). Beyond these two most important documents, there are many other relevant standards—including perhaps the Section 508 Guidelines and the 21st Century Communications and Video Accessibility Act—as well as softer guidelines, in the form of best practices and recommendations, that cover everything from teaching practices to exhibit design. When we have a specific question about how to make a specific context accessible, there are many places to look for an answer. The second question is addressed by the ADA itself, which offers a broad definition of disability. According to the ADA, a person with disabilities is any person who: has a physical or mental impairment that substantially limits one or more major life activity or has a record of such impairment or is regarded as having such impairment (§ 12102) The question is further addressed by the US Census Bureau, which reports that nearly 1 in 5 people in this country have a disability (Brault, 2012), and the World Health Organization, which reports that 1 in 7 people globally have a disability (2011). But these numbers and definitions do little to describe who people with disabilities really are, how they/we are unique, and how they/we are distributed among the total population. To begin to answer this question, people with disabilities are an extremely diverse group in every possible way. First, they/we are diverse in terms of ability. Extrapolating from the ADA definition, people with disabilities may include: people with mobility impairment or differences in motor control people with visual impairments, blindness, or differences in vision people who are Deaf or hard of hearing people with cognitive or emotional differences, Autism, PTSD, learning disabilities, depression people perceived as having a disability or a stigmatizing medical condition: diabetes, epilepsy, obesity people with previous disability: cancer survivors, people recovering from addiction Furthermore, there is of course a great diversity in ability among people with disabilities in general and within any specific disability category. For example, the spectrum of visual acuity among people with so-called low vision is just as broad and varied as the spectrum of visual acuity among people with so-called typical vision. Second, people with disabilities are diverse in terms of every other aspect of identity. People with disabilities are people of every background, race, gender, sexuality, ethnicity, economic status, nationality, and religion. And yet, people with disabilities are not evenly or randomly distributed among the total population. They/we overlap in striking ways with specific identities. For example: Among Americans over the age of 80, 70% of people experience disability (Brault, 2012, p.5). LGBTQ Americans are two times more likely to experience a mental health condition (NAMI). Among Americans with disabilities of working age, over 55% are unemployed (Brault, 2012, p. 11). Among Americans with disabilities of working age, over 25% live in poverty (Brault, 2012, p. 11). Among the world’s approximately one billion people with disabilities, 80% are located in the global South (Grech, 2016, p. 3). These overlaps have complex social, political, and biological backstories. For example, the high incidence of unemployment and poverty among people with disabilities is not only because disability may keep some people out of the work force and therefore at risk for poverty. Poverty itself increases the risk of developing disability because it often corresponds with lack of resources and exposure to environmental hazards (Pokempner & Roberts, 2001). As a corollary, because in this country poverty and wealth correspond to racial differences, this means that disability is not equally distributed across all races. For example, in the US among people age 22 to 44, severe disability is about 2 times more common among Black people than among White people (Pokempner & Roberts, 2001, p. 434). People with disabilities are extremely diverse, but not randomly diverse. They/we intersect in significant ways with other marginalized groups. The latest thinking in disability studies and adjacent fields addresses these realities with more expansive frameworks—for example, debilities and capacities (Puar, 2017), infrastructural neglect and environmental injustice (Kim, 2016), and the uneven distribution of life chances (Spade, 2015). These frameworks describe the conditions that produce disability among some populations and not others, in some places and not others. They point out that some people can claim disability—along with disability rights and disability pride—but many more people experience disability and debilitating conditions. All of these emerging frameworks from trans, queer, critical race, and postcolonial studies suggest that a focus on disability alone is not enough to understand disability for what it is: always an intersectional identity. Fortunately, accessibility as a practice has the potential to affect the many identities that intersect with disability. What is Accessibility? Design philosophy and coalitional history Accessibility is a design philosophy that centers the needs and experiences of people with disabilities. I have developed this working definition over several years of thinking back and forth across accessibility discourses and disability studies. It emphasizes the open and adaptable nature of accessibility, its accountability to people with disabilities, and its far-reaching consequences. By centering the needs of people with disabilities, accessibility puts those needs first, not to the exclusion of other users’ needs, but rather to the benefit of the overall design. By centering the needs and experiences of people with disabilities, accessibility is accountable to the embodied knowledge of real people even as their/our needs change, rather than wed to often outdated standards. As a design philosophy, accessibility is a system of values and goals we can bring to everything we do, from collections to services to hiring. Accessibility as a design philosophy also brings us back to the ADA, its uniqueness as legislation, and the coalitional history that led to its passing. The ADA, signed into law in 1990, drew very significantly on the legacy of Civil Rights activism and civil rights legal theory. For example, in 1977, disability rights activists occupied the San Francisco Federal Building to force the US government to sign Section 504 of the Rehabilitation Act (the first piece of US legislation to prohibit discrimination against people with disabilities), clearly using tactics of civil disobedience developed in US Black civil rights struggles (Longmore). Indeed, some of the activists, like Black Panther party member Bradley Lomax, were involved in both struggles (Schweik, 2011). Following the 1977 occupation, some of the same disability rights activists went to Washington and made connections with prominent civil rights activists, lawyers, and politicians (Davis, 2016). This eventually led to a 1981 summit in which people involved in passing The Civil Rights Act of 1964 helped disability rights activists think through applying a civil rights framework to disability. This work eventually led to the ADA as we know it (Davis, 2016). The ADA was made possible by earlier civil rights activism and legislation. And yet the ADA is also different from that earlier legislation. The Civil Rights Act (1964) prohibited “discrimination or segregation on the ground of race, color, religion, or national origin.” It outlawed the kind of active discrimination that was previously enforced through behaviors like segregation, intimidation, and denial of service. The ADA (1990) also prohibits discrimination. But that discrimination was previously enforced largely through inaccessible design. To prohibit this kind of discrimination, the ADA implies a proactive requirement to design things differently, such that people with disabilities are not segregated or denied service just because of the way things are made. This proactive requirement is extremely powerful, as it gives accessibility the ability to promote active design agendas that stand to benefit many people with and without disabilities. For example, accessible web design benefits people accessing the web with assistive technology as well as older technology, slower connections, and mobile devices. Closed captions for the hearing impaired benefit people with varying levels of familiarity with the topic and the language. Single stall locking restrooms serve people who use wheelchairs as well as people who are transgender or gender nonconforming. These illustrations of resonant design—cases where 2 different groups have coinciding needs and preferences in a particular context—show that accessibility benefits not just people with disabilities, and not just “everybody” (as is often said). Accessibility, when used consciously as a tool for justice, can benefit people with disabilities and people with debilities, and people subject to infrastructural neglect, and people with limited life chances. That is, accessibility can be used consciously to impact, for example, people with less fluency in a dominant language, less access to computing and communications technology, or less safety moving through public space—people who may or may not claim disability. From Access to Accessibility in Libraries As Kumbier and Starkey (2016) have recently pointed out, accessibility can and should be positioned as a natural extension of the library profession’s commitment to access. The 2004 statement from the American Library Association (ALA) lists the 11 Core Values of Librarianship, beginning with Access: “all information resources…regardless of technology, format, or methods of delivery, should be readily, equally, and equitably accessible to all library users.” This access statement rings of accessibility and universal design, stressing that access must be for all, and that it is our responsibility to understand and eliminate barriers to access. The Values Statement elaborates that access should be free, without cost and without legislative restriction.2 Kumbier and Starkey explain how this original commitment to access and equity might be updated with recent thinking about disability justice. They advocate for a more transformative approach, beyond “access to information” and beyond “access as problem solving.” Access as problem solving is a way of thinking that assumes that some people have access and some people have access problems (p. 478). Kumbier and Starkey want to think instead about a library in which no one is treated as an access problem and to suggest several avenues towards making our libraries accessible “in ways that exceed access to information” and would “contribute to the enactment of values like diversity and social responsibility” (p. 488). Indeed, accessibility can help promote values of diversity and social responsibility, and can serve us in the work of making our workplaces and profession more equitable and just. As a tool for justice in librarianship, accessibility is inadequate on its own—just like diversity—and also necessary. Its rhetorical usefulness in a profession explicitly committed to access should not be overlooked. Neither should its historical particularities and its political potential. Accessibility may help librarians interrogate the exclusions built into the design of our institutions. Beyond achieving compliance with standards and making accommodations for people with disabilities, a lens of accessibility has the potential to transform many aspects of what we do. Accessibility in hiring can be a starting point for addressing bias in job descriptions and search practices. Accessibility in meetings can be a starting point for shifting power dynamics among working groups. Accessibility in the classroom can be a starting point for inclusive teaching and engaged pedagogy. Accessibility in scholarship can be a starting point for open access and community-accountable projects. Accessibility in space design can be a starting point for built environments that invite and sustain more kinds of bodies and ways of moving or being. Because disability is always intersectional and accessibility has more radical potential than at first glance, accessibility can be a powerful tool for justice, especially in a profession already committed to access. In centering the needs of people with disabilities, accessibility can impact a range of people with and without disabilities who are marginalized in library and other institutions. In altering the soft systems and physical infrastructures of our institutions, accessibility can affect how libraries work, and for whom, now and into the future. Acknowledgements This essay distills thoughts that have developed over many years and reflects the input of many brilliant people. Thank you to Alana Kumbier and Amy Koester for working to make this essay ready for publication. Thank you to Meghan Sitar for directing me to Kumbier’s article and Lead Pipe. Thank you to Jeff Witt and Mark Puente for inviting me to present these arguments at the 2016 National Diversity in Libraries Pre-Conference. Thank you to Jasbir Puar for the thinking that made this essay possible. Thank you to Kei Kaimana for reading Terrorist Assemblages with me. References ACRL Diversity Alliance. (n.d.). [Statement of] Purpose. Retrieved October 25, 2017, from http://www.ala.org/acrl/issues/diversityalliance Ahmed, S. (2012). On Being Included: Racism and Diversity in Institutional Life. Durham, NC: Duke University Press. ALA Office for Diversity, Literacy, and Outreach Services. (n.d.). Mission Statement. Retrieved October 25, 2017, from http://www.ala.org/aboutala/offices/diversity American Library Association. (2004, June 29). Core Values of Librarianship. Retrieved from http://www.ala.org/advocacy/intfreedom/corevalues Americans with Disabilities Act of 1990, Pub. L. No. 101–336, 328 (1990). Bourg, C. (2014, March 3). The unbearable whiteness of librarianship [Blog]. Retrieved October 24, 2017, from https://chrisbourg.wordpress.com/2014/03/03/the-unbearable-whiteness-of-librarianship/ Brault, M. W. (2012). Americans with Disabilities: 2010. Washington, DC: U.S. Census Bureau. Civil Rights Act of 1964, Pub. L. No. 88–352, 241 (1964). Davis, L. J. (2015). Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights. Boston: Beacon Press. Galvan, A. (2015). Soliciting Performance, Hiding Bias: Whiteness and Librarianship. In the Library with the Lead Pipe. Grech, S., & Soldatic, K. (2016). Disability in the Global South: The Critical Handbook. Cham, Switzerland: Springer International Publishing. Hathcock, A. (2015). White Librarianship in Blackface: Diversity Initiatives in LIS. In the Library with the Lead Pipe. Hudson, D. J. (2017). On “Diversity” as Anti-Racism in Library and Information Studies: A Critique. Journal of Critical Library and Information Studies. Kim, J. B. (2016). Anatomy of the City: Race, Infrastructure, and U.S. Fictions of Dependency. University of Michigan, Ann Arbor. Kumbier, A., & Starkey, J. (2016). Access Is Not Problem Solving: Disability Justice and Libraries. Library Trends, 64(3), 468–491. Longmore Institute on Disability. (n.d.). Patient No More: People with Disabilities Securing Civil Rights. Retrieved October 25, 2017, from http://longmoreinstitute.sfsu.edu/patient-no-more National Alliance on Mental Wellness. (n.d.). Mental Health By The Numbers. Retrieved October 25, 2017, from https://www.nami.org/Learn-More/Mental-Health-By-the-Numbers Pokempner, J., & Roberts, D. E. (2001). Poverty, Welfare Reform, and the Meaning of Disability. Ohio State Law Journal, 62, 425. Puar, J. K. (2017). The Right to Maim: Debility, Capacity, Disability. Durham: Duke University Press. Schweik, S. M. (2011). Lomax’s Matrix: Disability, Solidarity, and the Black Power of 504. Disability Studies Quarterly, 31(1). Spade, D. (2015). Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Revised and expanded edition). Durham, [North Carolina]: Duke University Press. Stewart, D.-L. (2017, March 30). Language of Appeasement. Inside Higher Ed. Retrieved from https://www.insidehighered.com/views/2017/03/30/colleges-need-language-shift-not-one-you-think-essay United States Department of Justice. (2010). 2010 ADA Standards for Accessible Design. Washington, DC: Dept. of Justice. W3C World Wide Web Consortium. (2008, December 11). Web Content Accessibility Guidelines 2.0. Retrieved from http://www.w3.org/TR/WCAG20/ World Health Organization. (2011). World Report on Disability. Geneva, Switzerland: World Health Organization. Ahmed’s study (2012) draws from twenty-one interviews with diversity practitioners working in higher education institutions in Australia and the UK. [↩] This information is supplemented in the ALA Policy Manual B.2.1.14 Economic Barriers to Information Access. [↩] accessibility, disability, intersectionality, justice Patron-Driven Subject Access: How Librarians Can Mitigate That “Power to Name” Editorial: Harassment in Scholarship is Unacceptable–and Requires Action This work is licensed under a CC Attribution 4.0 License. ISSN 1944-6195 About this Journal | Archives | Submissions | Conduct 
work_pwhbmuhvafezpoxetm4rhl6imm	----	Contrary to justice © 2011 Macmillan Publishers Limited. All rights reserved. © 2011 Macmillan Publishers Limited. All rights reserved. © 2011 Macmillan Publishers Limited. All rights reserved. © 2011 Macmillan Publishers Limited. All rights reserved. COMPLIANCE OUT OF FEAR Sir, we read with interest the paper by Soheilipour et al. on the views of professionals on the NICE guidelines (CG64) relating to antibiotic prophy- laxis for cardiac patients.1 We recently completed a survey of 162 dentists in the West Midlands about their views of NICE CG64.2 We agree that we should treat our patients on a one to one basis and take into account their wishes and needs, as these current NICE guidelines state clearly ‘treatment and care should take into account patients’ needs and prefer- ences. Patients should have the oppor- tunity to make informed decisions about their care and treatment’.3 However, we found that most of the dentists we surveyed were not happy to consider patients’ preferences: 90% preferred not to administer antibiotic prophylaxis even if patients insisted that they should be prescribed. Fifty- two percent of the respondents felt that the guidelines from the American Heart Association would better serve their patients’ interests. Soheilipour et al. highlighted an important issue, that guidelines should be seen as recommendations rather than protocols. The majority of the dentists in our study were convinced that deviating from the guidelines may result in litigation and disciplinary proceedings. There appears to be a need for a fundamental debate about the rule of guidelines in determining clinical practice and this situation provides a good example of the dilemma faced by dentists in applying national guidelines to every day clinical practice. Further we note there is a differ- ence in emphasis given by the two main defence organisations regard- ing this issue. Dental Protection states that ‘Dentists working within an NHS contract are required under the terms of their contract to observe the guidance of NICE when writing prescriptions. Clinicians working privately may not have contractual obligation to follow the guidance, but they would need a very strong justification for choosing not to do so’.4 The Dental Defence Union advises members to be aware of the current guidance, but if they judge it is in the patient’s clinical interest not to follow advice contained in national guidelines, they will need to make a careful record of their reasons for doing so. They further advise that if a dentist is later called upon to justify a decision to prescribe or not prescribe a prophy- lactic antibiotic, he or she would have to be able to establish that they were working in accordance with a reason- able body of dental opinion.5 Thus we wish to draw attention to the question of what constitutes a reasonable body of dental opinion, when compliance appears to be done more out of fear of adverse personal consequences than anything else. E. Beshara, B. Speculand, Birmingham 1. Soheilipour S, Scambler S, Dickinson C et al. Antibiotic prophylaxis in dentistry: part I. A quali- tative study of professionals’ views on the NICE guidelines. Br Dent J 2011; 211: E1. 2. Accepted as a poster, British Association of Oral Surgeons conference. London, September 2011. 3. NICE Short Clinical Guidelines Technical Team. Prophylaxis against infective endocarditis: antimi- crobial prophylaxis against infective endocarditis in adults and children undergoing interventional procedures. London: National Institute for Health and Clinical Excellence, 2008. 4. Dental Protection. Position statement. Antibiotic prophylaxis. Issued 24 March 2008. 5. Harvey B. New guidance on antibiotic prophylaxis. The Dental Defence Union, 2 April 2008. DOI: 10.1038/sj.bdj.2011.874 CONTRARY TO JUSTICE Sir, we write to express our unhappi- ness at the decision to withdraw Senior- ity Payments to dentists working in the General Dental Services over the age of 55 from 1 April 2011 who, we under- stand, will no longer be admitted to the scheme. We would like to state that we find this action reprehensible. Monies supposedly allocated to this payment have been ‘top sliced’ from fees paid to all dentists working in the GDS for many years. The action of the DH to remove this payment without any form of replacement is, in our opinion, contrary to natural justice. If we, as dentists in the GDS, were to accept payment for services to patients and then arbitrarily refuse to provide these services we would be called to account by the patients and ultimately by the relevant authorities. Prior to the introduction of the present contract we were assured that we would be operat- ing in a ‘high trust’ environment. This action by the DH shows that the reality is far from this empty rhetoric. To restore your readers’ faith in the actions of the DH we would ask them to reinstate these payments immediately. M. Buckle Chair, on behalf of Devon Local Dental Committee DOI: 10.1038/sj.bdj.2011.875 QUALITY MEASURES Sir, I was extremely interested to read An analysis of patient expenditure in the GDS in Scotland 1998 to 2007 (BDJ 2011; 211: E3) by Chalkley, Rennie and Tilley. This provided an opportunity to revisit a ‘fee for item of service’ (FIS) contract and highlighted the tensions which I experienced as a practice owner BRITISH DENTAL JOURNAL VOLUME 211 NO. 8 OCT 22 2011 345 Send your letters to the Editor, British Dental Journal, 64 Wimpole Street, London W1G 8YS Email bdj@bda.org Priority will be given to letters less than 500 words long. Authors must sign the letter, which may be edited for reasons of space. Readers may now comment on letters via the BDJ website (www.bdj.co.uk). A 'Readers' Comments' section appears at the end of the full text of each letter online. LE TTE R S Letters to the Editor Contrary to justice 
work_pxyixzvmjvh7vhenboevpzaqfq	----	Climate finance justice: International perspectives on climate policy, social justice, and capital EDITORIAL Climate finance justice: International perspectives on climate policy, social justice, and capital Published online: 31 July 2020 # Springer Nature B.V. 2020 Climatic Change (2020) 161:243–249 https://doi.org/10.1007/s10584-020-02790-7 1 Introduction In the 2015 Paris Agreement, the United Nations Framework Convention on Climate Change (UNFCCC) established, for the first time, the international community’s intention to direct sufficient finance to address climate change. Along with the goals of “pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels” and “increasing the ability to adapt to the adverse impacts of climate change,” Article 2 of the Agreement recognized that “finance flows” were essential to achieve these longstanding goals of “low greenhouse gas emissions and climate-resilient development” (COP21 2015; Whitley et al. 2018). The UNFCCC’s Standing Committee on Finance (SCF) takes a comprehensive view of climate finance, defining it as finance aimed at “reducing emissions, and enhancing sinks of green- house gases and… at reducing vulnerability of, and maintaining and increasing the resilience of, human and ecological systems to negative climate change impacts” (SCF 2014, 5). More specifically, climate finance typically consists of grants, loans, equity in the form of purchased shares, and debt relief. In the SCF’s Biennial Assessment of climate finance flows, total global funding in 2016 was calculated to be USD 681 billion, as a high-bound estimate. This was an increase of 17% over the previous two years, with most of the growth occurring in new private investments in renewable energy projects (SCF 2018). The politics of climate finance are centered on the recognition that the Global North has disproportionately benefited from fossil fuel production and use, while the Global South experiences more severe hazard events, such as droughts and storms, with higher levels of vulnerability to them. According to this framing, the Global North has both the moral responsibility to fund climate change mitigation and adaptation responses and the greater capacity to do so. Climate finance is thus a reaction to historical and ongoing injustice at the same time that it needs to be interpreted through the framework of justice. In this special issue, we explore the multiple and contested intersections of climate justice and finance. What kinds of justice and injustice do we see in climate finance? And how does climate justice influence flows and constructions of capital? Guest Editors: Dr. Lauren Gifford (University of Colorado, Boulder) and Dr. Chris Knudson (University of Hawai‘i at Hilo) http://crossmark.crossref.org/dialog/?doi=10.1007/s10584-020-02790-7&domain=pdf 244 Climatic Change (2020) 161:243–249 The financial responsibility of the Global North was codified in the UNFCCC’s 2010 Cancún Agreements: “…developed country Parties commit, in the context of meaningful mitigation actions and transparency on implementation, to a goal of mobilizing jointly USD 100 billion per year by 2020 to address the needs of developing countries” (COP16 2010). The Paris Agreement extended this commitment through 2025. In order to assess the progress in meeting this target, it is necessary to have internationally agreed upon rules for counting what qualifies as climate finance. However, these rules do not exist (Roberts and Weikmans 2017). Despite the resulting ambiguity, the two leading organizations that track climate finance have produced similar estimates of Global North financing. The aforementioned 2018 Biennial Assessment conducted by the SCF found that USD 55.7 billion flowed to the Global South in 2016, a 30% increase over 2014 levels (SCF 2018). Similarly, the Organization for Economic Cooperation and Development produced a climate-related development finance database that recorded USD 56.7 billion of Global North funding in 2017 (OECD n.d.). When we compare the estimate of USD 681 billion for the entirety of climate finance in 2016, we see that Global North funding under the Cancún pledge accounts for less than 10%. The majority of climate finance remains in the Global North to fund for-profit projects like renewable energy devel- opment (Yeo 2019). The Paris Agreement establishes that there should be a balance in funding between adaptation and mitigation. However, approximately twice the amount of finance goes towards projects that are mitigation-only compared to adaptation-only (OECD n.d.). This has conse- quences for the mode of climate financing because most mitigation funding comes in the form of debt financing that needs to be paid back, while most adaptation funding consists of grants (SCF 2018). Moreover, the amount of global funding that does go towards mitigation and adaptation is grossly insufficient. The IPCC’s Special Report on Global Warming of 1.5°C found that approximately USD 830 billion in “additional annual average energy-related investments” would need to be made between 2016 and 2050 to limit warming to 1.5°C by 2100 (Masson-Delmotte et al. 2018, sec. C.2.6). Adaptation costs are estimated to range between USD 70 and 100 billion annually, according to the IPCC’s 5th Assessment Report (Chambwera et al. 2014). A more recent study by the United Nations Environment Programme found that annual adaptation costs in the Global South could increase to between USD 280 and 500 billion by 2050 (Puig et al. 2016). 2 Emergent themes in climate finance justice Building from the movements against environmental racism and for environmental justice, climate justice as a distinct concept began to coalesce in the 1990s. A key moment was a meeting in Bali in preparation for the second Earth Summit, held in Johannesburg in 2002. The Bali Principles of Climate Justice were articulated by a coalition of groups, including CorpWatch, World Rainforest Movement, Friends of the Earth International, and the Indige- nous Environmental Network. The 27 Bali Principles called for the elimination of greenhouse gases, “the rights of indigenous peoples and affected communities to represent and speak for themselves,” and the “recognition of a principle of ecological debt that industrialized govern- ments and transnational corporations owe the rest of the world,” among other tenets common to the climate justice movement today (CorpWatch 2002). At COP13 (that is, the UNFCCC’s 13th conference of the parties) in Bali in 2007, representatives from the Global South and low- income communities in the North united under the name “Climate Justice Now!”. The group Climatic Change (2020) 161:243–249 245 issued a series of “genuine solutions” that echoed many of the Bali Principles, but also significantly called for “huge financial transfers from North to South, based on the repayment of climate debts and subject to democratic control” (Tokar 2019). We can identify two major theoretically divergent approaches to climate justice. First, there are thinkers based in philosophy and environmental ethics (Jamieson 2010a, b and Shue 1995) who frame climate change as a result of historic and current carbon emissions. They are concerned with who is responsible for existing carbon emissions, how future emissions should be quantified and valued, and who pays for climate impacts, and why. Second, there are those who approach justice from the perspective of social movements, interrogating the role of marginalization in the experience and suffering of climate impacts (Roberts and Parks 2006; Bond 2012). They address how social movements have united and gained traction under the umbrella of global climate concerns to challenge existing social and environmental injustices. Climate justice-based arguments for climate finance typically draw on the twin principles of historical responsibility for climate change and of the greater capacity to act (Sayegh 2019). As part of the neoliberal turn toward environmental management, the Global North’s increasing use of climate finance has included a reliance on markets and economic modelling, such as carbon taxes (Bumpus 2015), insurance (Johnson 2013), carbon offsets (Bumpus and Liverman 2008), payments for ecosystem services (McAfee and Shapiro 2010), cap and trade (Klinsky 2013), adaptation funds (Grasso 2009), and loss and damage compensation (Roberts and Huq 2015). But does this deployment of finance undermine other climate justice goals? What are the limits of using finance to pursue justice? The articles in this special issue highlight several cross-cutting themes, including the reproduction of uneven development, the ongoing influence of increasingly weak institutions like the UNFCCC and the Green Climate Fund (GCF), the continued reliance on problematic financial mechanisms to address climate change, like trust funds, carbon offsets, the Clean Development Mechanism, and REDD+, and the problems that arise when local oversight and expertise are devalued or excluded. Other authors found that there is a common reliance on financial mechanisms to do development work; that universal finance tools can be ill-suited to accomplishing climate justice rooted in a particular place; and that many of these financial tools are complex by design, making accountability to, and interest in, climate justice difficult. Our aim in organizing this collection of articles is to highlight recurring themes in critical research that demonstrate tensions between concepts of justice and economic models, financial tools, and flows of capital. These themes include the role of finance mechanisms like carbon markets, carbon offsets, and the GCF in raising and disbursing development aid; the ways that civil society is challenging how and by whom climate finance is administered; how social movements are pushing for capital flows to be managed by grassroots organizations rather than supranational institutions like the World Bank (Lohmann 2008); and ultimately how the complexities of finance and bureaucracy often obfuscate injustice. 3 The articles in this special issue The articles in this special issue cover a broad international survey of climate finance justice. They range from richly empirical studies grounded in particular projects and places to critical analyses of the implications of using finance to manage climate change and redress its attendant losses. We begin with Khan et al.’s review of climate adaptation finance under the UNFCCC, from the early years of the COP process, through the middle Copenhagen era, to 246 Climatic Change (2020) 161:243–249 our post-Paris Agreement age. Drawing on multiple forms of justice – distributive, procedural, recognition, compensatory, restitutive, corrective, and neoliberal – the authors examine how adaptation finance has been variously understood and contested over time as new norms and rules arise. In analyzing whether the governance and delivery of adaptation finance has become more just, they focus on the questions of how much finance should be allocated, and by whom. While noting the ongoing reluctance of wealthy countries to accept responsi- bility for the climate catastrophe, the authors show how those in power continue to control policy development, which has led to justice commitments with little promise of ever being honored. In the Paris Agreement, loss and damage (L&D) joined mitigation and adaptation as the three fundamental pillars of climate change management. (L&D is an umbrella term that encompasses the social, political, economic, or cultural impacts that lie beyond our capacity to adapt to climate change.) Williams addresses the convergence of scientific, legal, and policy communities in dealing with the direct and indirect impacts of anthropogenic climate change. Namely, she focuses on the development of the research field of scientific attribution, lawsuits against fossil fuel companies, and UNFCCC negotiations for L&D. Within these three converging communities, Williams examines key conceptual and ethical issues concerning which communities become part of attribution studies and lawsuits, and which fossil fuel emitters are targeted by policy and the law. In doing so, Williams operationalizes an accountability-based approach to anthropogenic climate change by drawing on concepts of climate justice. She argues that an accountability-based approach should focus on those communities most impacted by climate change, in contrast to their relative neglect in detection and attribution work and in lawsuits. In addition, an accountability-based approach would also focus on the responsible agents, who can be identified by their significant contributions to emissions in combination with some improper act, such as negligence, the active avoidance of safer alternatives or blocking mitigation efforts. In another policy-focused piece, Gifford examines the development and consequence of climate change mitigation products through an empirical focus on forest carbon offsets. By identifying three key ‘points of engagement’ in the carbon accounting process – baseline scenarios, additionality, and uncertainty – Gifford illustrates how activities deemed technical or apolitical are often spaces where uneven social and political interests are manipulated or obscured, leading to variable impacts in carbon sequestration and climate change mitigation. The article includes a review of the emergence of forest carbon offsets and how they evolved as objects of analysis in the social sciences, with a look at how accusations of carbon colonialism and fraud have led the mechanism to be reinvented in North/North contexts in the US. Conclusions are drawn from five years of field work, encompassing 77 interviews on forest carbon offsets in the Peruvian Amazon and in Maine, at the UNFCCC, at professional carbon market association meetings, civil society actions, and via participant observation in carbon accounting training courses. Sauls shares another perspective on the use of conservation for climate change mitigation, as she questions how international climate finance can be used to protect forests in a way that accords with the affected communities’ own conceptions of justice. For a coalition of ten Indigenous and forest peoples’ groups in Mexico and Central America – the Mesoamerican Alliance of Peoples and Forests (AMPB) – one way to bring about more effective outcomes for mitigating climate change would be a variation on REDD+ that recognizes their territorial rights. While REDD+ funding typically relies on exogenous technical knowledge to calculate forest stocks and loss, the AMPB’s proposal of a Mesoamerican Territorial Fund (MTF) as an Climatic Change (2020) 161:243–249 247 alternative climate change finance mechanism is designed to accomplish both climate benefits and strengthen AMPB members’ efforts for self-determination and support the survival of their cultural identities. However, there is a tension between the requirements that major donors place on entities to be fundable – for example, the need for performance-focused results – and the AMPB members’ demands for autonomy and equity. Ultimately, Sauls sees an opening for climate finance like the proposed MTF to accomplish distributive, procedural, and historical justice on the territorial scale. Shumais and Mohamed similarly explore another type of climate finance deployed within least developed countries: Environmental Trust Funds (ETFs). Their article examines the characteristics that make ETFs successful, with a particular emphasis on the relatively overlooked experiences of Small Island Developing States. An ETF is a government-led investment vehicle that can raise and distribute financial resources to address environmental issues. The authors focus on the Maldives’s Climate Change Trust Fund (CCTF), which was set up in 2012 to enhance renewable energy, wetland management, coral reef monitoring and rainwater harvesting. Using the CCTF as a case study, the authors show that insufficient local expertise in renewable energy was a principal hindrance to the fund’s success. The authors also compare the Maldives’s CCTF with an ETF in Bhutan. They conclude that Bhutan’s use of an autonomous and politically independent organization to facilitate its fund’s projects led to greater success than in the Maldives where projects were directly managed by the ETF. Additional criteria for successful ETFs identified by the authors include stakeholder partici- pation and the incorporation of objectives beyond those of the fund itself. Cholibois explores another effort to expand renewable energy in the Global South, with a focus on the role that climate finance could have in Madagascar’s energy transition. If Madagascar can receive sufficient funding, the construction of large-scale renewable energy – in a country largely lacking a national grid – would allow it to bypass the conventional path of fossil fuel consumption. Cholibois argues that climate finance is necessary for countries that struggle to fund development projects, such as Madagascar, whose per capita GDP was lower in 2010 than fifty years earlier. Madagascar has received climate finance in the form of grants and loans. Grants- based electrification projects typically invest in complementary services, such as educational campaigns, and recognize the importance of bringing electricity to rural areas. However, the use of private capital, like concessional loans, is increasingly common in Madagascar, which risks excluding the poorest parts of rural Madagascar from the benefit of expanded electrification. This would undermine energy justice in the country by increasing inequality in access to electricity. Finally, using the Lower Sesan 2 hydropower dam in Cambodia as a lens through which to consider flaws in the UN Clean Development Mechanism (CDM), Baird and Green demon- strate that hydroelectricity’s promise of lowered greenhouse gas (GHG) emissions typically comes at the expense of other serious negative social and environmental consequences. The Lower Sesan, and other CDM-funded hydropower projects in Cambodia, have flooded forested areas, forced the relocation of communities, and blocked the migration of fish species. Moreover, there is often little proof that Cambodia’s hydropower projects needed CDM financing to be built. This fraud has undermined mitigation efforts and taken funding from projects that could have resulted in additional cuts to GHG. As the CDM is scheduled to end in 2020, there is the opportunity for its successor financing mechanism to rigorously uphold both clearly specified sustainable development goals and quantified reductions in carbon emissions. A robust international movement has been organizing and advocating for climate justice for more than 10 years. And it has accomplished much. The Global North pledge at COP16 in Cancún to finance mitigation and adaptation was partly a response to the climate justice demands 248 Climatic Change (2020) 161:243–249 that asked wealthy countries to recognize their disproportionate responsibility for climate change and their capacity to act. Thus, because climate finance has been fundamentally framed as an issue of climate justice, we need to rigorously and comprehensively analyze the climate justice outcomes of these financial flows. We can state that the inability of the Global North to transfer USD 100 billion per year to the Global South, which is already insufficient for current needs, is in itself a failure of justice. As for how climate finance is being deployed, the articles in this special issue make clear that frequently the “winners” of financialized climate governance are neoliberal institutions, and other entities promoting market-based strategies for climate mitigation and adaptation. Ultimately, much of this research shows that justice remains more of a discursive tool than an action, with just climate finance still seemingly out of reach. References Bond P (2012) Emissions Trading, New Enclosures and Eco-Social Contestation. Antipode 44(3):684–701 Bumpus AG (2015) Firm Responses to a Carbon Price: Corporate Decision Making under British Columbia’s Carbon Tax. Climate Policy 15(4):475–493 Bumpus AG, Liverman DM (2008) Accumulation by Decarbonization and the Governance of Carbon Offsets. Economic Geography 84(2):127–155 Chambwera M, Heal G, Dubeux C, Hallegatte S, Leclerc L, Markandya A, McCarl BA, Mechler R, Neumann JE (2014) Economics of Adaptation. In: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, pp 945–977 COP16. 2010. “COP 16 Cancún Agreements.” COP21. 2015. “COP 21 Paris Agreement.” CorpWatch. 2002. “Bali Principles of Climate Justice.” 2002. https://corpwatch.org/article/bali-principles- climate-justice. Grasso, Marco. 2009. Justice in Funding Adaptation under the International Climate Change Regime. Springer Science & Business Media. Jamieson D (2010a) Climate Change, Responsibility, and Justice. Science and Engineering Ethics 16(3):431– 445 Jamieson D (2010b) Adaptation, Mitigation, and Justice. Climate Ethics, Essential Readings, pp 263–283 Johnson L (2013) Index Insurance and the Articulation of Risk-Bearing Subjects. Environment and Planning A 45:2663–2681 Klinsky S (2013) Bottom-up Policy Lessons Emerging from the Western Climate Initiative’s Development Challenges. Climate Policy 13(2):143–169 Lohmann L (2008) Carbon Trading, Climate Justice and the Production of Ignorance: Ten Examples. Development 51(3):359–365 Masson-Delmotte, Valérie, Panmao Zhai, Hans-Otto Pörtner, Debra Roberts, Jim Skea, Priyadarshi R. Shukla, Anna Pirani, W. Moufouma-Okia, C. Péan, and R. Pidcock. 2018. “IPCC, 2018: Summary for Policymakers.” In Global Warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty. Geneva, Switzerland: World Meteorological Organization. McAfee K, Shapiro EN (2010) Payments for Ecosystem Services in Mexico: Nature, Neoliberalism, Social Movements, and the State. Annals of the Association of American Geographers 100(3):579–599 OECD. n.d. “Climate Change: OECD DAC External Development Finance Statistics.” . https://www.oecd. org/dac/financing-sustainable-development/development-finance-topics/climate-change.htm. Puig, Daniel, Anne Olhoff, Skylar Bee, Barney Dickson, and Keith Alverson. 2016. “The Adaptation Finance Gap Report.” United Nations Environment Programme. Roberts E, Huq S (2015) Coming Full Circle: The History of Loss and Damage under the UNFCCC. International Journal of Global Warming 8(2):141–157 Roberts JT, Parks B (2006) A Climate of Injustice: Global Inequality, North-South Politics, and Climate Policy. MIT press https://doi.org/https://corpwatch.org/article/bali-principles-climate-justice https://doi.org/https://corpwatch.org/article/bali-principles-climate-justice https://doi.org/https://corpwatch.org/article/bali-principles-climate-justice https://doi.org/https://corpwatch.org/article/bali-principles-climate-justice Climatic Change (2020) 161:243–249 249 Roberts JT, Weikmans R (2017) Postface: Fragmentation, Failing Trust and Enduring Tensions over What Counts as Climate Finance. International Environmental Agreements: Politics, Law and Economics 17(1): 129–137 https://doi.org/10.1007/s10784-016-9347-4 Sayegh AG (2019) Climate Finance: Moral Theory and Political Practice. In: Tahseen J, Helwig K, Mikulewicz M (eds) Routledge Handbook of Climate Justice. Routledge, New York, NY, USA, pp 153–164 SCF. 2014. “UNFCCC Standing Committee on Finance: 2014 Biennial Assessment and Overview of Climate Finance Flows Report.” UNFCCC Bonn. SCF. 2018. “Summary and Recommendations by the Standing Committee on Finance on the 2018 Biennial Assessment and Overview of Climate Finance Flows.” UNFCCC Bonn. Shue H (1995) Equity in an International Agreement on Climate Change. Equity and Social Considerations Related to Climate Change. ICIPE Science Press, Nairobi Tokar B (2019) On the Evolution and Continuing Development of the Climate Justice Movement. In: Tahseen J, Helwig K, Mikulewicz M (eds) Routledge Handbook of Climate Justice. Routledge, New York, NY, USA, pp 13–25 Whitley S, Thwaites J, Wright H, Ott C (2018) Making Finance Consistent with Climate Goals: Insights for Operationalising Article 2.1c of the UNFCCC Paris Agreement. Overseas Development Institute, London Yeo S (2019) Where Climate Cash Is Flowing and Why It’s Not Enough. Nature 573(7774):328–331 https://doi. org/10.1038/d41586-019-02712-3 Publisher’s note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. https://doi.org/10.1007/s10784-016-9347-4 https://doi.org/10.1038/d41586-019-02712-3 https://doi.org/10.1038/d41586-019-02712-3 Climate finance justice: International perspectives on climate policy, social justice, and capital Introduction Emergent themes in climate finance justice The articles in this special issue References 
work_pyukfnxzwff3jicnbtm5neoiym	----	This is the author’s version of a work that was submitted/accepted for pub- lication in the following source: Mills, Martin, McGregor, Glenda, Baroutsis, Aspa, Te Riele, Kitty, & Hayes, Debra (2016) Alternative education and social justice: Considering issues of affective and contributive justice. Critical Studies in Education, 57 (1), pp. 100-115. This file was downloaded from: https://eprints.qut.edu.au/97930/ c© 2015 Taylor & Francis Notice: Changes introduced as a result of publishing processes such as copy-editing and formatting may not be reflected in this document. For a definitive version of this work, please refer to the published source: https://doi.org/10.1080/17508487.2016.1087413 https://eprints.qut.edu.au/view/person/Baroutsis,_Aspa.html https://eprints.qut.edu.au/97930/ https://doi.org/10.1080/17508487.2016.1087413 1 Alternative education and social justice: Considering issues of affective and contributive justice Martin Millsa, Glenda McGregorb, Aspa Baroutsisa, Kitty te Rielec and Debra Hayesd aSchool of Education, The University of Queensland, Brisbane, Australia; bSchool of Education and Professional Studies, Griffith University, Brisbane, Australia; c The Victoria Institute of Education, Victoria University, Melbourne, Australia; dFaculty of Education and Social Work, Sydney University, Sydney, Australia. Corresponding author: m.mills@uq.edu.au This paper considers the ways in which three alternative education sites in Australia support socially just education for their students and how injustice is addressed within these schools. The paper begins with recognition of the importance of Nancy Fraser’s work to understandings of social justice. It then goes on to argue that her framework is insufficient for understanding the particularly complex set of injustices that are faced by many highly marginalised young people who have rejected or been rejected by mainstream education systems. We argue here for the need to consider the importance of ‘affective’ and ‘contributive’ aspects of justice in schools. Using interview data from the alternative schools we highlight issues of affective justice raised by students in relation to their educational journeys, as well as foregrounding teachers’ affective work in schools. We also consider curricular choices and pedagogical practices in respect of matters of contributive justice. Our contention is that the affective and contributive fields are central to the achievement of social justice for the young people attending these sites. Whilst mainstream schools are not the focus of this paper, we suggest that the lessons here have salience for all forms of schooling. Keywords: social justice, affective justice, contributive justice, alternative education, youth studies Acknowledgements: This work was supported by the Australian Research Council under Grant DP120100620. 2 Introduction This paper has evolved from a project exploring the types of learning occurring in flexible learning sites/alternative1 education in Australia during the period 2012-14. The project was concerned with the ways in which such sites supported a socially just education for their students. Our concerns were framed around Nancy Fraser’s (1997; 2009) conceptions of social justice in that we were interested in the ways in which such schools took account of: issues of distribution, or the economic injustices faced by the young people attending the schools; issues of recognition, that is, the cultural injustices faced by these young people; and issues of representation, with regards to the political injustices experienced by young people. In the main we have been impressed by what these schools do in relation to addressing all of these forms of injustice (see for example, McGregor et al. 2015; Mills et al., 2015). However, to us there was something missing in the analysis when it came to describing the types of relationships that support young people’s engagement in schooling, as well as those that disrupt this engagement. We have come to the conclusion that social justice is a complex and multi- faceted concept that is inadequately explained by Nancy Fraser’s framework and we suggest here that there are other elements that need to be considered when addressing issues to do with socially just education. In so doing we are drawn to both the work of Kathleen Lynch (2012) and Andrew Sayer (2009, 2011). Lynch (2012) in her critique of Fraser’s theory suggests that ‘it does not recognize the affective domain of life as a discrete site of social practice’ (p. 49). In terms of schooling, the affective sphere is concerned with the quality of relationships, care and support available to students. Interrelated with this is Sayer’s qualitative understanding of ‘contributive 1 In this paper, we have used the terms flexible learning centre and alternative school somewhat interchangeably. We note, as do Mills & McGregor (2014) that there is no agreed-upon definition and much contestation regarding what constitutes ‘alternative education’. The schools involved here are those that cater to marginalised young people and are also often referred to as ‘second chance’ schools. 3 justice’ and its relationship to meaningful work. Based on our own observations of multiple alternative schooling sites in Australia and England (see for example, Baroutsis et al. (in press); Hayes, 2013; McGregor et al., 2015; Mills & McGregor, 2010, 2014; Mills et al., 2013; Mills et al., 2014; te Riele, 2012, 2014; te Riele, Davies & Baker, 2015), and drawing on notions of contributive justice we suggest, that ‘care’ needs to be taken in the provision of flexible education to ensure students do not receive a watered down curriculum that fails to engage them intellectually and that damages their sense of self-respect. The paper begins with an outline of the research project and its relationship to the work of Nancy Fraser; we then move on to discuss concepts of affective justice and contributive justice and their relevance to schooling, contextualising our theories with interview data collected from teachers and students in flexible learning sites situated in three different Australian jurisdictions. We highlight those issues of affective justice raised by students both in relation to their former and current schools, and we foreground teachers’ affective work in schools. A consideration of the types of curricula and pedagogical practices present in these schools and their relationship to contributive justice support our contention that such approaches are central to the achievement of social justice for the young people attending these sites. Whilst our focus is on young people in alternative forms of education, we suggest that the lessons here have salience for all forms of schooling. Flexible learning and social justice We, like others (see for example, Cribb & Gewirtz, 2003; Lipman, 2008; Power & Frandji, 2010; Keddie 2012a, 2012b), have found the work of Nancy Fraser useful in considering what a socially just school might look like. Her work has focussed on considering how the sometimes competing demands of economic justice and cultural justice can be worked together to provide a 4 comprehensive theory of justice. In more recent times she has embedded a concern with political justice into her theoretical framework. Within Fraser’s framework economic injustice refers to an inequitable distribution of resources and the damaging effects of this ‘maldistribution’. Cultural injustice refers to the ways in which various groups are have become ‘despised’, for example, on the grounds of sexuality, gender, or race/ethnicity. This ‘misrecognition’ occurs when people are forced to suppress their own cultural ways of being and communicating to the (often hostile) norms of the dominant culture, are rendered invisible or are disrespected as a result of belonging to a particular cultural group. Political injustice, which Fraser refers to as ‘misrepresentation’, occurs in those instances when people are denied an opportunity to make justice claims when they are experiencing economic or cultural injustice or when they are unable to contribute to the decisions that impact upon their lives. She contends that misrepresentation can occur (although unlikely) in the absence of economic and cultural injustices. Fraser argues that all such aspects of injustice have to be attended to in order to achieve a socially just society where there is ‘parity of participation’. Her work has not been without its critics (see for example, Olsen, 2008). However, we have found this framework a useful device for considering how economic, cultural and political injustices, and their respective solutions of distribution, recognition and representation, relate to contemporary schooling, both in the mainstream and alternative sectors (see for example, McGregor et al. 2015; Mills et al., 2015). Mainstream schools have a long history of not serving particular groups of young people well. Students who come from low socioeconomic backgrounds are disproportionately represented in the lower bands of achievement and attendance data and in the upper bands of data on exclusion, suspension and ‘special needs’(see for example, Abrams, 2010; Evans et al., 5 2009; Gale & Densmore, 2000; Kane 2011; Mills & Gale, 2010; Mosen-Lowe, Vidovich & Chapman, 2009). Multiple reasons for this have been suggested to us by participants in our study. These include, students’ access to particular forms of cultural capital, lack of fit between the middle class expectations of schooling and (non)working class culture, teacher prejudices, lack of resources, and even diet. Whilst we have very definite understandings of our own as to why this is the case, we would also suggest that whatever the reason, there is no doubt that an injustice is being perpetrated against the children of the poor. This economic injustice works to ensure that the benefits of schooling are unfairly distributed amongst young people according to their family’s economic circumstances, and given the strong relationship between educational success and social mobility (OECD, 2012) reproduces existing patterns of wealth and poverty. In many of the schools we have visited, this injustice has been addressed through, for example, the provision of food, accommodation support for homeless young people, transportation, basic services (for example, showers) and free excursions (see for example, Mills & McGregor, 2014). Defining ‘culture’ in its broadest sense to include gender, sexuality, race/ethnicity, religion, language background and so on, it is clear that young people who belong to marginalized ‘cultures’ often encounter schooling as a less than positive experience. This ‘cultural injustice’ can be shaped by a lack of academic reward, but also by harassment and violence, by being ignored, silenced or having one’s existence denied, by active and hidden discrimination at multiple levels, and it can be perpetrated by teachers and students alike (Smyth, 2006). In many of the flexible schools we have visited, this injustice has been addressed by a strong commitment to recognising and valuing difference. This has been demonstrated through, for example, seeking input from local Indigenous Elders into organisational and curriculum 6 content, the provision of crèches for those students who have children, ensuring that homophobia or racism are never ignored and providing support around domestic violence issues. It is also apparent that many young people experience schooling as oppressive because they have no forum in which to express their opinions or challenge the injustices they have experienced (Black, 2011). The importance of student voice in schools has been well documented (see Dewey 1916; Beane & Apple 1999; Fielding & Moss 2011), however its presence is often lacking. An absence of voice, or political injustice, may be apparent in the ways in which students, especially those from marginalized backgrounds, can be summarily suspended from school, given detentions and other forms of punishment without options to challenge those decisions. It is apparent in dress codes, in timetabling restrictions, in the appointment of teachers and in curriculum decisions. It is perhaps not surprising, as Teese and Polesel (2003) indicate, that for many young people who are not achieving well at school, their most common descriptor of school is as a prison. In the schools that we have visited as part of this project we have seen attempts to give students a voice through regular community meetings (Baroutsis, McGregor & Mills, in press), through consultations on renovations, even in one case working closely with architects to design new premises, and by including them on teacher interview panels. Whilst in the main we have been highly supportive of these alternative schools and the various ways in which they have worked to challenge injustice (see for example, Hayes, 2012; Mills & McGregor, 2014; te Riele, 2006; 2007; 2011), we are of the view that as a matter of social justice these schools also have to consider the types of learning that students do in the classroom. It has been noted in many studies, and compounded by an era of high stakes testing (Darling-Hammond, 2010; Lingard, Martino & Rezai-Rashti, 2013; Hardy, 2013; Lingard & Sellar, 2013), that many classrooms in mainstream schools are devoid of curriculum, pedagogy 7 and assessment that inspire, challenge and provoke all students (Hayes et al., 2006; Smyth, McInerney & Fish, 2013). However, whilst concerned about this current state of affairs, we are of the view that such an absence in flexible learning centres is particularly damaging to those students who have already been disenfranchised from learning. We are not alone here. There have been some concerns raised about the alternative education sector being constructed as a dumping ground for students ‘unwanted’ by the education system where there is then little academic challenge (Mills, Renshaw, & Zipin, 2013; Kim & Taylor, 2008; Kim, 2011; Smyth, McInerney and Fish, 2013). de Jong and Griffiths (2006), for instance, have expressed concerns that the increased use of alternative education programs for younger and younger students can lead to them being separated from the mainstream and its benefits, and that ‘poorly constructed and resourced’ programs will reinforce students’ poor outcomes from schooling (p. 37). Thus, in highlighting the necessity for elements of affective justice and contributive justice to be significant considerations when working with disenfranchised young people, we are not suggesting that ‘care’ by itself is sufficient to address all their needs. Our intention is to tease out the complexity inherent in notions of a ‘socially just’ education as explained in the following sections. Multi-sited ethnography This study represents a ‘multi-sited ethnography’ of alternative schools (Falzon, 2009; Marcus, 1995; Pierides, 2010; Kraftl, 2013). Marcus (1995) explains that this mode of ethnographic research ‘moves out from the single sites and local situations of conventional ethnographic research designs to examine the circulation of cultural meanings, objects, and identities in diffuse time-space’ (p. 96). The strength of multi-sited ethnography is that it enables the researchers to ‘make connections between sites’ (Pierides, 2010, p. 186) in a ‘spatially dispersed field through 8 which the ethnographer moves’ (Falzon, 2009, p. 2). In this research project, we used ethnographic observations and semi-structured interviews with students, teachers and other workers in three flexible learning schools across three Australian states and one territory during multiple visits over a period of 18 months in 2013 and 2014. We sought to explore a range of themes that included the following broad areas, as relevant to teachers, workers and students: previous experiences; pathway into the alternative site; reasons for staying; what works (relational, material, pedagogical and curricular elements) and why; and, resourcing and sustainability issues. In this paper we draw upon data from three of these sites, identified using the pseudonyms: Elkhorn Community College in Queensland; Banksia College in the Australian Capital Territory; and Boronia Flexi School in Victoria, in order to explore concepts of affective and contributive justice that emerged as significant concerns within these schools. Elkhorn Community College is a non-government and non-fee paying school providing educational programs for young people in Years 10, 11 and 12, the final three years of secondary education in Australia. At the time the researchers were at the College, there was an enrolment of approximately 60 young people and five staff, comprising a principal, two teachers, and two youth and community development workers (one of whom was completing teaching qualifications). Banksia College is a mainstream government senior high school in a major Australian city that runs two alternative programs (now both operating out of the main campus) for students who have difficulties fitting into the mainstream and usually come from very difficult personal circumstances: one is a flexible learning centre for approximately 100 pregnant girls and young parents (mostly mothers) who attended both part and full-time; the other is a 9 ‘Big Picture’2 inspired offering with a focus on flexibility of delivery and project-work for approximately 35 students. Staffed by small teams of dedicated teachers, both programs provide significant levels of material and personal support to the young people in their care. Boronia Flexi School is a metropolitan Year 7–12 alternative school and is part of the Edmund Rice Education Australia (EREA) Youth+ network, which ‘seeks to respond to the needs of young people disenfranchised and disengaged from education. This non-fee paying school caters to approximately 130 students, and as with Elkhorn and Banksia, their life experiences have been challenging – including poverty, mental illness, out-of-home care, drug dependency, juvenile justice and settlement as recent migrants. Boronia Flexi School offers Year 7–12 formal junior and senior secondary credentials. In the following sections of the paper, we consider affective and contributive injustice. Affective justice relates very much to the relationship and supportive structures that are in place within a school that indicate to young people that they are cared about. We would suggest that learning approaches which appear to have no purpose to the student and provide little by way of satisfaction and serve to demoralise them, not only represent an affective injustice, a lack of care, but also constitute a contributive injustice. Such learning would include, for example, routinized test skilling, worksheets, and form filling with an emphasis on basic skills. This does not mean that some rote learning or the developing of skills have no place in the delivery of meaningful learning, but that they need to be part of a broader approach to learning not an end in themselves. We then provide examples of affective and contributive justice, where all students are engaged in 2 The Big Picture model of schooling has its origins in the USA. Its basic principles articulated on its Australian website state: ‘highly personalised approach to education combines academic work with real world learning. It places the student, their passions and their interests, at the centre of the learning process’. (Big Picture Education Australia 2014) 10 meaningful work in a caring and supportive environment. This has particular salience given the context of where these justice acts are taking place. The schools that form the basis of our case study sites are those whose students, in the most part, have not been previously engaged in learning, have been labelled as academically and socially deficit and yet are now willing to come to school. We would suggest that this emphasises the importance of all schools demonstrating a commitment to affective and contributive justice. Affective justice and learning environments The relational and caring dimensions of schooling have been widely recognised (Bingham & Sidorkin, 2004; Noddings, 1988) and these are arguably particularly important when working with students who have experienced marginalisation in school and society (Beck & Cassidy, 2009; Smyth et al., 2008; te Riele, 2006). Additionally, many feminist writers have stressed the political importance of emotions and understandings of ‘affective justice’ (Blackmore, 1999, 2006; Boler, 1999; Hochschild, 1983). As Lynch (2012), has indicated it is often feminist scholars who ‘have drawn attention to the salience of care and love as goods of public significance’ (p. 47). Her work informs our concern with social justice and alternative education. Those schools deemed alternative, as all schools, are communities where their success in terms of being a place where both workers and students want to attend, is dependent upon the quality of relationships for all. As with Lynch, we recognise that the care provided by members of that community to each other is a matter of social justice both in relation to who gives it and who receives it (Lynch, 2012, p. 49). She argues that what she refers to as ‘affective equality’ is focussed on two issues: ‘securing equality in the distribution of the nurturing through love, care and solidarity relationships and securing equality in the doing of emotional and other work involved in creating love, care and solidarity relations’ (p. 50). 11 Whilst we are concerned with the issue of who is responsible for ‘caring’, and recognise the mutuality of such caring, our focus here is on who gets the ‘caring’. Many of the young people in our study, when asked to outline the strengths of their current schools suggested that it was the relationships that mattered, that they felt that the teachers and other workers cared for them. This was often contrasted with previous experiences of schooling, for example Audrey, a Boronia Flexi School student said the following of her current school: They care, they care a lot about the students. No matter who you are they care ... Because they’re so sweet, they do so much for the students here and more than what other schools would do because the way I’ve seen in other mainstream schools is you’re a teacher, you teach, that’s it. They’re more caring. Like I say, it’s like a community, it’s like a family. So the teachers really care about the students and they’re also youth workers as well so they deal with the children. If you have something on your mind you talk to a teacher and they’re full open with you and they’re so nice, they’re just the most nicest people here. Lynch outlines three sets of relations that constitute affective justice: love, care and solidarity. In the first instance, love is said to be related to relationships of high interdependency and intense engagement; she suggests that even when such relationships are absent they often have great significance (for example the parent-child relationship even in abusive situations). Care relations are viewed as having a lower order of dependency and obligations, but are significant nonetheless; she suggest that friends, work colleagues and some distant relations fall into this category. Solidarity relations do not involve intimacy, but are, Lynch (2012) suggests, ‘the more political or public face of affective relations’ (p. 52). Here we can think of advocate groups (for example, refugee support groups), unions and government departments. Lynch suggests that these three categories are not mutually exclusive and that they are interdependent. She also argues that these systems of ‘affective equality’ are all interrelated with Fraser’s 12 framework. She argues that ‘it is not possible to address problems of inequality or social justice in one social system therefore without addressing those in related social systems’ (p. 53). We contend that it is the relational sets of ‘care’ and ‘solidarity’ that construct the affective domain within schools and that these elements are especially important for achieving socially just outcomes for marginalised young people. Applying Lynch’s (2012) conceptualisation of ‘relational care work’ (p. 56) in alternative settings suggests that teachers play an important mediating role at the nexus of these relationships: supporting and working with students and their families or caregivers; developing flexible structures and processes that provide a caring schooling environment; and working in solidarity with students to resist their continued marginalisation in schooling and beyond. For example Faye, who attended Banksia College commented: I got kicked out of home and I came in and saw the counsellor and straight away she got me straight onto housing. They do that little bit extra all the teachers here. It’s more than just what a normal teacher does at a school. They look out for you in your entire life, not for just the six hours that I’m here for. Additionally, many of the students we interviewed talked about how their prior schooling experiences contributed to the complexity of their lives, rather than providing a place of care and support. Drew, a student from Elkhorn Community College provided us with an example: I was always ‘your bad student’. I wasn't bad. Like, I was respectful in some ways but I couldn't concentrate on work and it was, like, hard, just coming from my old life … drugs, drinking and wrong people and violence and - yeah. Leanne, a student at Banksia College, contrasted her experiences with her former and current school. She said of the program at Banksia: 13 We get to come into school and you are not stressed. Like, when you have got family issues and that, you can sit down and, like, talk to Leigh and Stuart (teacher and deputy principal) and they will, like, help you through the day and that. And then you can go and make yourself a cup of tea. It's more relaxed and chilled. Like, you are not stressed about going into class and that. You are running a bit late on an assignments - they do help you out. Irrespective of social class background, complex home environments can disrupt young people’s engagement with schooling because they may be called upon, as we have observed, to exercise independence at an early age, to care for younger siblings and disabled parents, to manage relationships with neighbours and service providers, and so on. While it is not the role of teachers to replace or substitute these primary relationships, even when complex, they can provide care and support that enhances young people’s capacity to sustain their engagement in schooling. At Banksia College, for example, a teacher named Leigh, came up constantly in our interviews with young people. We heard numerous stories of how she went beyond the role of ‘teacher’ in the ways she cared for her students. In one discussion with students Callum and Leanne, they joked: ‘Leigh needs to clone herself!’ and Leanne added ‘Yeah – we need more Leighs!’ Evidence of her high level of care was threaded through all the data from Banksia College. For example, in a discussion about the food available at the site, the conversation indicated that packs of noodles were once provided for students but this is no longer the case. Darren commented: ‘Don't have them lately. If it was really bad, Leigh would probably just give you some money to go to the canteen or something’. And Robbie, I missed out on a lot of schoolwork because I was really sick, that was due last semester - not last semester, last term. And I have been allowed to catch up pretty much nearly all of it. In the last few days, I was supposed to get some other work done, but my mother is in hospital now. So Leigh is supporting me and making sure that I can get to places easily … Pretty much anything that she can do, like, transport - I believe she's done it for other people. 14 It appeared that Leigh’s approach was to develop modes of caring that were appropriate for the needs of individual students as summed up here by Leanne: Yes, she works - she has a different relationship - she has a relationship with everyone but it's different, which is really good. She sits there and knows everyone but she will have to change her, like, talking and that. She's like, ‘Alright, I am talking to this student now, so I have got to talk to her in this way’, you know what I mean. Yeah, she's really good. In the case of marginalised students, care and support is likely to involve solidarity expressed through curriculum and pedagogy that values, respects, and builds upon the knowledge and cultural backgrounds of students, while also supporting their capacity to engage with the kinds of knowledge that contribute to success at school and beyond. This is a challenge faced by teachers in both alternative and mainstream settings. However, for the former, it requires findings ways to engage young people in learning that do not involve repeating or reinforcing students’ prior experiences of failure (Hayes, 2012). We contend that a concern with ‘affective equality’ is critical to the success of alternative schooling. This is achieved relationally and academically. We suggest that, as with the dimensions of justice outlined in Fraser’s work, both types of affective equality are necessary, and neither is sufficient on its own for considering what makes up a socially just school. Kim and Taylor (2008), for example, examine one alternative school in the mid-west of the United States, attended by many young people who have not been served well by current educational practices, to explore the benefits or otherwise of this school for its students. Their view was that the school was, indeed, a caring place; however, they were also of the view that it did little to break ‘the cycle of educational inequality’ (Kim & Taylor, 2008, p. 208). In this school, many of the students indicated that they wanted to go to college; however, the school’s focus on ‘credit recovery’,where students who have fallen behind on their grades or school work attempt to catch 15 up with their peers in the mainstream school, did not facilitate this goal. However, as Kim and Taylor (2008) go on to say: ‘Their dreams required a more rigorous college-bound curriculum and career counselling’ (p. 213). Echoing de Jong and Griffiths (2006), Kim and Taylor (2008) claim that: A school program is beneficial to students when it provides content, processes, rigor, and concepts that they need to develop and realize their future career goals. A school program that is beneficial to students engages them and leads them through varying processes to critical thinking and synthesis of the concepts and content. Conversely, a school program that is not beneficial to students is behavioristic, positivistic, and reductive. That is, the focus of the program is primarily on an either–or dichotomy: It addresses only lower order thinking and processing skills and does not move students toward their future career goals. (p. 208) Others to critique the types of learning taking place in such settings include Thomson and Russell (2007) in the UK who suggest there was a tendency to assume that all young people in alternative learning environments need and want is vocational options, which limits scope of provision (p. viii). Similarly, Dovemark and Beach (2014) in Sweden demonstrated some of the ways in which deficit understandings of students in a program for non-academic, non-vocational students contributed to their already precarious existence. In such instances it is imperative that teachers and workers in alternative schools become advocates for young people, enacting Lynch’s notion of ‘solidarity’ in caring for the long-term prospects of their students. We have also witnessed the absence of engaging, intellectually challenging and meaningful classroom practice in the alternative schools that formed part of our study, as illustrated here by Anthony, a student at Boronia Flexi School, who commented about his English studies: The quality of work - for instance, if I was still going to [name of previous school] I’d be expected to do, in English say, a 3,000-word essay. You’re not expected to do that in English here. 16 Both Anthony and another student, Colin, agreed that classes at the flexi school were ‘a lot easier’. When asked if they liked their current situation, Anthony replied: Yeah, it’s good because it’s a lot less workload, but bad because … I honestly don’t feel like I learn anything, like what I haven’t already learned. It just feels like I’m just repeating. The development of an appropriate and challenging curriculum for their students was clearly of great concern to the teachers in our case study schools. This kind of curriculum work is made even more complex in these settings because the students come from a variety of background learning experiences. Teachers are required to assess each student’s learning needs and preferences, and map these to appropriate curriculum pathways. Maddy, a teacher at Elkhorn Community College, for example, explained how she got to know her student as learners: I have just recently started trying to do, "what kind of learner am I?" That starts with a worksheet thing where they grade - put a scale, you know. They answer questions and then we have conversations, "Why do you learn best in this way? What can we do in this setting to make it most beneficial for you, and the best way that I can support you in your learning?" We acknowledge that many of the students who attend alternative schools have significant educational gaps that need to be addressed. Our concern is that rather than bridging the gaps and moving the learning forward, the ‘gaps’ will remain if learning is restricted to basic skills such as literacy and numeracy and ‘job readiness’. Branson from Elkhorn Community College spoke about a class that is offered at his college called Employment, Education and Training: We have got a class that we can go to, if we want to do our job searches, résumés, certificates, get work experience. Yeah, I have got a couple so far. Heaps of stuff. It's pretty good here. TAFE is just down the road, so they take us down there in the bus, or they will come here; instead of finding your own way to TAFE. 17 In our experience, this state of affairs, as in lower streamed classes in mainstream schools, and lower expectations across whole schools located in low socioeconomic and marginalised communities, is justified often on the grounds of deficit understandings of students’ abilities and dispositions. The absence of student work premised on high expectations and engaging activities, and the justifications for this absence, would not be present in classrooms for ‘gifted and talented’ students or in schools proud of their academic reputations. Such attitudes may signify a lack of intellectual care and respect for the young people, their current abilities and their future potential. In recognising that there is a need to go beyond care, and indeed solidarity, as with Lynch, we have engaged with the work of Sayer and the notion of contributive justice. We argue here that this understanding of justice is crucial in ensuring that alternative schools consolidate their ethos of care as a basis for ensuring that their students have access to meaningful learning. Contributive justice and meaningful learning Whilst affective justice has a focus upon care of and respect for the individual in terms of the material, relational and intellectual supports and opportunities provided, contributive justice (Gomberg, 2007; Sayer 2009; 2011) is overtly concerned with what a person actually gets to do. Sayer (2011) states that: ‘contributive justice concerns what people are allowed, expected or required to do or contribute’ (p. 9). As such it contrasts with, but complements justices concerned with what a person gets (economic), who a person is (cultural), how a person is heard (political) and how a person is cared for (affective). He goes on to argue that: What people are allowed to contribute, particularly in terms of work, is at least as important as what they get in terms of resources, because the type of work that they do has far-reaching effects on the kinds of people they become, on how they view themselves and are viewed by others, and hence on the quality of their lives. (Sayer, 2011, p. 9) 18 This is an echo of his distinction between contributive justice and economic justice, when he argues that: ‘what we do in life has at least as much influence on who we become and the quality of our lives, as does what we get’ (Sayer, 2009, p. 2). For Sayer, there are two aspects to contributive justice. The first has a quantitative element to it and is concerned with doing a ‘fair share’ of the workload. Teachers, and indeed university academics, who set project work and group tasks are familiar with the complaints that others are not pulling their weight or are taking over – both relate to the notion of contributive justice. However, whilst important, we are more concerned here with the qualitative element of contributive justice. This relates to the type of work being done and the intrinsic and extrinsic rewards associated with this work. It also relates to the opportunities that people have to make a contribution to the conception and execution, and all stages in between, of a shared project. This form of injustice is also linked and works closely with those frames identified by Fraser. For example, there are times when boring, repetitive, low skilled tasks are necessary to complete a project. However, how those tasks are distributed and rewarded is a matter of social justice. The unfair distribution of work occurs in both the formal economy and in domestic life. In the formal economy contributive injustice, according to Sayer, occurs both within and between occupations and workplaces. Sayer provides a set of arguments from Murphy (1994) and Gromberg (2007), to indicate why this state of affairs is unjust. These all relates to a person’s quality of life. The kind of work that a person does has an impact upon who they become and on their emotional, physical and intellectual well-being. People experience enjoyment in doing complex tasks that enable them to employ and extend their capacities (see Griffiths, 2012, for a discussion of social justice and ‘joy’). For example, Lilly from Banksia College who, after fleeing there from an abusive family relationship in another major city, had been homeless in the ACT, before finding her way to the 19 College, excitedly told us about how she wanted to build her own computer and noted: ‘At the moment I am working towards getting an IT apprenticeship – I would never been able to finish Year 12 without [this program]’. Dignity is also enhanced when people have control over their labour in that they are trusted, understand their contribution to the larger project, and have an opportunity to question their and others’ roles throughout the process of conception and execution of a project. Understanding the various links in a project and reasons for embarking on a particular task also ensures that even mundane tasks when shared around are meaningful. There is great resonance here with schooling and classroom work. This was evident when Stuart, the teacher in charge of the alternative program at Banksia College, was describing the types of projects they undertook in their program. A key aspect of their work involved students working on a range of tasks, including some menial ones, to develop a product that had real world impacts. Stuart told us: [For our next project] we are going to aim to make some swags3 with an industrial sewing machine, roll them with toothpaste, toothbrushes, towel, whatever we find, soap, and then we will give them to one of our local homeless shelters for the winter because it's pretty harsh in [the city] - well, you know, it is not pleasant anyway. So wherever possible we take a leadership or a community service thing in addition…. We don't have too many students who wallow and they have - pretty much all have had difficult circumstances. In this case it was indicated that the students were proud of their achievements and developing a sense of contributing to their community. Students who are deemed to be the most competent are often those most likely to be provided with opportunities to extend themselves and to receive diverse learning experiences (see for example, Charlton et al., 2007). Similar parallels can be found with a differentiated 3 An Australian colloquial term for a bedroll containing all one’s personal belongings. 20 schooling system where certain schools specialize in academic learning and others have a more technical focus. The growing presence of flexible learning options points to a schooling system that is increasingly diversifying in ways that have the potential to exacerbate this situation (Hayes, 2013; Slee, 2011). The defence of such arrangements include arguments to the case that it is more efficient to have specialized or differentiated schools and classrooms that cater to differences in abilities, interests and behaviours. This, it is sometimes argued, helps to ensure that the schooling system is efficient, that it is stabilized in that disruptions and poor behaviours are minimized (at least to the extent that ‘good students’ do not have their work interfered with) and that this situation caters to different abilities, potential and dispositions. However, Bardsley (2007) has argued that: Where social stability and economic efficiency are valued above all else, the aim of education becomes the provision of basic skills to train citizens amongst the socioeconomically deprived classes to perform the menial tasks essential to keep society functioning, without disrupting established power structures (Laberee, 1997; Lynch & Lodge, 2002). Justice within education systems should be committed to the premise that all children must be adequately prepared for effective societal roles of their own choosing. (p.496) Bardsley’s (2007) work also suggests that a socially just education has to provide young people with the skills and knowledge to engage with ‘emerging societal contexts’. This will entail school work engaging with technology, developing critical citizenship skills and understandings of contemporary society. It is our contention that contributive justice is present in a classroom when students are presented with learning opportunities that enable them to develop a sense of pride in the outcomes of that learning - in much the same way that a craftsperson feels pride in the 21 construction of a product (Sennet, 2009). This recount from Stuart, a deputy and head of the alternative program at Banksia College, exemplifies this contention: We have Miriam who all of last year spent six months making polymers with one of our chemistry teachers and she explained it to me … And she's a pretty eclectic little thinker. … I missed the exhibition where her family came to the exhibition… And the family sees something that the kid is proud of and there is a moment where they do a little bit of readjustment. Yeah, they settle back - there is that moment when the kid goes, ‘Oh, you do actually see something good about me. I am making progress’, and that's transformative for both sides. We have got parents that were reviewed as part of that review process. They are some of our biggest fans. As I said, they have enrolled second kids in it. I think that what they like about it is the concept that the kid has to do something fairly rigorous. At Boronia Flexi School, the music teacher provided a similar example: The staff and the students see people walking out of this room with such big chests, you know. The pride is just visibly obvious to see when they have just had some success. That I think is, I am not saying it is all about music, but some sort of high level professional product that is in the digital domain I think every school would benefit from. What the data from our research indicate is that such learning occurs when it is has a purpose (whether personal or instrumental) and that that purpose is evident to the student. Julian (a teacher at Boronia Flexi School) linked this to ‘a sense of empowerment for the young people to be who they feel as though they want to be’. It also has some connection to the world beyond the classroom and stretches and challenges all young people, not just those deemed to be of ‘high ability’. Conclusion Our concern with what a socially just schooling system might look like and, in particular, how 22 schools can meet the needs of the most marginalised students, led us to explore ‘what works’ in those schools catering to students who have been excluded from mainstream schools or have themselves rejected what the mainstream has to offer. In many instance we have been impressed by these schools’ efforts to address economic, cultural and political injustices. In this paper, we have thus contended that a socially just education for students attends to Fraser’s (1997; 2009) dimensions of social justice in respect of economic, cultural and political inequities. However, drawing upon the work of Lynch (2012) and Sayer (2009, 2011), we have also argued that these dimensions are enhanced by the inclusion of affective and contributive forms of justice, which pay attention to inequities in relational care and individual potential for meaningful participation. The teacher participants in our study expressed a strong commitment to the social and emotional well-being of their students. Affective justice (in the forms of significant support structures and respectful, caring relationships) was of primary concern to them. Many of the students we interviewed indicated that its absence in their former school(s) had been a key factor in their departure from the mainstream sector. This concern with affective justice was thus critical to the success of such schools. However, we suggest that if it exists in isolation from other necessary elements, care is insufficient for ensuring the provision of socially just schooling. The quality of curriculum and pedagogy, which varied in some instances across the sites, is also of critical concern, and hence why we also argue that contributive justice needs to be incorporated into concerns about affective justice. In this paper we have indicated examples of where we have come across flexible learning arrangements that facilitated students' engagement in meaningful learning, demonstrating a commitment to contributive justice; however, there were sometimes reservations expressed. In some instances teachers indicated that in their alternative setting some students were not able to 23 tackle challenging work and that this was why they were in the alternative school in the first place. Because of the patchy nature of the educational backgrounds of young people in alternative education, there was often a focus on literacy, numeracy and vocational options. Clearly these skills are necessary for economic participation in society; however, if such competencies and training are considered sufficient education for these, usually marginalized and disadvantaged, young people it could be argued that this may also condemn them to a lifetime of political and social marginalisation despite their ability to obtain employment. We thus argue that the quality of curricular choices and pedagogical approaches made available to young people in alternative education sites is fundamental to the achievement of contributive justice, and hence social justice. We are also of the view that concerns with affective justice and contributive justice should have occurred long before students such as those interviewed for this project found themselves in alternative education provision. References Abrams, F. (2010). Learning to fail: How society lets young people down. London, Routledge.  Bardsley, K. (2007). Education for all in a global era? The social justice of Australian secondary school education in a risk society. Journal of Education Policy, 22(5), 493-508. Baroutsis, A., McGregor, G., & Mills, M. (in press). Pedagogic voice: Student voice in teaching and engagement pedagogies. Pedagogy, Culture and Society. Accepted 22 January, 2015. Beane, J. A. & Apple, M.W. (1999). The case for democratic schools, in: M.W. Apple & J.A. Beane (Eds.), Democratic schools: Lessons from the chalk face. Buckingham: Open University Press. Beck, K. & Cassidy, W. (2009). Embedding the ethics of care in school policies and practices, in: K. te Riele (Ed.). Making schools different: Alternative approaches to educating young people (pp. 55-64). London: SAGE Bingham, C. & Sidorkin, A. (Eds.) (2004). No education without relation. New York: Peter Lang Publishing 24 Black, R. (2011). Student participation and disadvantage: Limitations in policy and practice, Journal of Youth Studies, 14(4), 463-474. Blackmore, J. (1999). Troubling women: Feminism, leadership and educational change. Buckingham: Open University Press. Blackmore, J. (2006). Social justice and the study and practice of leadership in education: A feminist history. Journal of Educational Administration and History, 38 (2), 185-200. Boler, M. (1999). Feeling power: Emotions and education. New York: Routledge. Charlton, E., Mills, M., Martino, W., & Beckett, L. (2007). Sacrificial girls: A case study of the impact of streaming and setting on gender reform. British Educational Research Journal, 33(4), 459-478. Cribb, A. & Gewirtz, S. (2003). Towards a sociology of just practices, in: C. Vincent (Ed.) Social justice education and identity (pp. 15-29). London: Routledge. Darling-Hammond, L. (2010). The flat world and education: How America's commitment to equity will determine our future. New York: Teachers College Press. de Jong, T. & Griffiths, C. (2006). The role of alternative education programs in meeting the needs of adolescent students with challenging behaviour: Characteristics of best practice. Australian Journal of Guidance & Counselling, 16(1), 29-40. Dewey, J. (1916). Democracy and education: An introduction to the philosophy of education. New York: Macmillan. Dovemark, M. & Beach, D. (2014). Academic work on a back-burner: Habituating students in the upper-secondary school towards marginality and a life in the precariat. International Journal of Inclusive Education, DOI: 10.1080/13603116.2014.961676. Evans, J., Meyer, D., Pinney, A., & Robinson, B. (2009). Second chances: Re-engaging young people in education and training. Essex: Barnardo's. Falzon, M.-A. (2009). Introduction, in: M.-A. Falzon (Ed.), Multi-sited ethnography: Theory, praxis and locality in contemporary research (pp. 1-23). Surrey, England: Ashgate. Fielding, M., & Moss, P. (2011). Radical education and the common school: A democratic alternative. London: Routledge. Fraser, N. (1997). Justice interruptus: Critical reflections on the ‘postsocialist’ condition. New York: Routledge. 25 Fraser, N. (2009). Scales of justice: Reimagining political space in a globalizing world. New York: Columbia University Press. Gale, T. & Densmore, K. (2000) Engaging teachers: towards a radical democratic agenda for schooling. Buckingham: Open University Press. Gomberg, P. (2007). How to make opportunity equal: Race and contributive justice. Malden MA: Blackwell Publishing. Griffiths, M. (2012). Why joy in education is an issue for socially just policies. Journal of Education Policy, 27(5), 655-670. Hardy, I. (2013). A logic of appropriation: Enacting national testing (NAPLAN) in Australia. Journal of Education Policy, 29(1), 1-18. Hayes, D. (2012). Re-engaging marginalised young people in learning: the contribution of informal learning and community-based collaborations. Journal of Education Policy, 27(5), 641-653. Hayes, D. (2013). Customization in schooling markets: the relationship between curriculum and pedagogy in a ‘pop-up’ learning project, and the epistemic opportunities afforded by students’ interests and backgrounds. International Journal of School Disaffection, 10(2): 3-22. Hayes, D., Mills, M., Christie, P. and Lingard, B. (2006). Teachers and schooling making a difference: Productive pedagogies, assessment and performance. Crows Nest, Australia: Allen & Unwin. Hochschild, A. (1983). The managed heart. Berkeley, CA: University of California Press. Kane, J. (2011). Social class, gender and exclusion from schools. London: Routledge. Keddie, A. (2012a). Schooling and social justice through the lenses of Nancy Fraser. Critical Studies in Education, 53(3), 263-279. Keddie. A. (2012b). Educating for diversity and social justice. New York: Routledge. Kim, J.-H. (2011). Narrative inquiry into (re)imagining alternative schools: A case study of Kevin Gonzales. International Journal of Qualitative Studies in Education, 24(1), 77–96. Kim, J-H & Taylor, K. A. (2008). Rethinking alternative education to break the cycle of educational inequality and inequity. The Journal of Educational Research, 101(4), 207- 219. 26 Kraftl, P. (2013). Geographies of alternative education: Diverse learning spaces for children and young people. Bristol: Policy Press. Lingard, B. & Sellar, S. (2013). ‘Catalyst data’: Perverse systemic effects of audit and accountability in Australian schooling. Journal of Education Policy, 28(5), 634-656. Lingard, B., Martino, W. & Rezai-Rashti, G. (2013). Testing regimes, accountabilities and education policy: Commensurate global and national developments. Journal of Education Policy, 28(5), 539-556. Lipman, P. (2008). Mixed-income schools and housing: advancing the neoliberal urban agenda. Journal of Education Policy, 23(2), 119–134. Lynch, K. (2012). Affective equality as a key issue of justice: A comment on Fraser’s 3- dimensiponal framework. Social Justice Series, 12(3), 45-64. Marcus, G.E. (1995). Ethnography in/of the world system: The emergence of multi-sited ethnography. Annual Review of Anthropology, 24, 95-117. McGregor, G., Mills, M., te Riele, K., & Hayes, D. (2015). Excluded from school: Getting a second chance at a ‘meaningful’ education. International Journal of Inclusive Education, 19(6), 608-625. Mills, C. & Gale, T. (2010). Schooling in disadvantaged communities: Playing the game from the back of the field. Dordrecht, Netherlands: Springer. Mills, M. & McGregor, G. (2014). Re-engaging young people in education: Learning from alternative schools. London: Routledge. Mills, M. & McGregor, G. (2010). Re-engaging students in education: Success factors in alternative schools. Brisbane, Australia: Youth Affairs Network Queensland. Mills, M., McGregor, G., Hayes, D., & te Riele, K. (2015). ‘Schools are for us’: The importance of distribution, recognition and representation to creating socially just schools. In K. Trimmer, A. Black & S. Riddle (Eds.), Researching Mainstreams, Margins and the Spaces In-Between (pp. 150-167), London: Routledge. Mills, M., McGregor, G., Martin, B., Tomaszewski, W. & Waters, R. (2014). Engaging young people in education. Brisbane, Australia: Department of Education, Training and Education. 27 Mills, M. McGregor, G. & Muspratt, S. (2013). Flexible learning options/centres in the Australian Capital Territory (ACT). Canberra, Australia: ACT Education and Training Directorate. Mills, M., Renshaw, P., & Zipin, L. (2013). Alternative education provision: A dumping ground for 'wasted lives' or a challenge to the mainstream? Social Alternatives, 32(2), 13-18. Mosen-Lowe, L. A. J., Vidovich, L. & Chapman, A. (2009). Students ‘at-risk’ policy: Competing social and economic discourses. Journal of Education Policy, 24(4), 461-476. Murphy, J.B. (1994). The moral economy of labor. New Haven: Yale. Noddings, N. (1988). An ethic of caring and its implications for instructional arrangements. American Journal of Education, 96(2), 215-30. OECD. (2012). Equity and quality in education: Supporting disadvantaged students and schools. Paris: OECD Publishing. Available http://dx.doi.org/10.1787/9789264130852-en (Accessed 13 May 2015). Olsen, K. (Ed.) (2008). Adding insult to injury: Nancy Fraser debates her critics. London: Verso. Pierides, D. (2010). Multi-sited ethnography and the field of educational research. Critical Studies in Education, 51(2), 179-195. Power, S. & Frandji, D. (2010). Education markets, the new politics of recognition and the increasing fatalism towards inequality. Journal of Education Policy, 25(3), 385–396. Sayer, A. (2009). Contributive justice and meaningful work. Res Publica, 15, 1–16. Sayer, A. (2011). Habitus, work and contributive justice. Sociology, 45(1), 7–21. Sennett, R. (2009). The craftsman. London: Penguin Books. Slee, R. (2011). The irregular school: Exclusion, schooling and inclusive education. London: Routledge. Smyth, J. (2006). Educational leadership that fosters ‘student voice’. International Journal of Leadership in Education: Theory and Practice, 9(4), 279-284. Smyth, J., Angus, L., Down, B., & McInerney, P. (2008). Critically engaged learning: Connecting to young lives. New York: Peter Lang Publishers Smyth, J., McInerney, P., & Fish, T. (2013). Re-engagement to where? Low SES students in alternative-education programs on the path to low-status destinations? Research in Post- Compulsory Education, 18(1-2), 194-207. 28 Te Riele, K. (2006). Schooling practices for marginalized students – practice-with-hope. International Journal of Inclusive Education, 10(1), 59-74. te Riele, K. (2007). Educational alternatives for marginalised youth. Australian Educational Researcher, 34(3), 53-68. te Riele, K. (2011). Raising educational attainment: How young people's experiences speak back to the Compact with young Australians. Critical Studies in Education, 52(1), 93-107. Te Riele, K. (2012). Negotiating risk and hope: A case study of alternative education for marginalized youth in Australia. In W. Pink (Ed). Schools and marginalized youth: An international perspective (pp. 31-79). Cresskill (NJ): Hampton Press Te Riele, K. (2014). Putting the jigsaw together: Flexible learning programs in Australia. Final report. Melbourne: The Victoria Institute for Education, Diversity and Lifelong Learning. Available: http://dusseldorp.org.au/priorities/alternative-learning/jigsaw/ Te Riele, K., Davies, M. & Baker, A. (2015). Passport to a positive future. Evaluation of the Melbourne Academy. Melbourne: The Victoria Institute for Education, Diversity and Lifelong Learning. Available: http://www.vu.edu.au/sites/default/files/victoria- institute/pdfs/Passport-to-a-Positive-Future-%28web%29.pdf Teese, R. & Polesel, J. (2003). Undemocratic schooling: Equity and quality in mass secondary schooling in Australia. Melbourne: Melbourne University Press. Thomson, P., & L. Russell, L. (2007). Mapping the alternatives to permanent exclusion. York: Joseph Rowntree Foundation. 
work_pzo3lh5er5ca3npp6lynvuie7a	----	Populism, polarization and social justice activism https://doi.org/10.1177/1350506817713439 European Journal of Women’s Studies 2017, Vol. 24(3) 197 –201 © The Author(s) 2017 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1350506817713439 journals.sagepub.com/home/ejw E J W S Populism, polarization and social justice activism In June 2016, Britain’s referendum, with a turnout just over 70%, resulted in 52% of votes in favour of the UK exiting the European Union. Sovereignty, national pride and security were among the main issues causing divisions between the ‘leave’ and ‘stay’ camps. The United Kingdom Independence Party (UKIP) – one of the main supporters of Brexit – is a right-wing, populist party with an anti-immigration, anti-multiculturalism (read: anti-Muslim) position, arguing for Britain’s withdrawal from European Conventions on Refugees and Human Rights, supporting ‘traditional family values’ and opposing LGBT rights such as same-sex marriage. In the Austrian presidential elections, Norbert Hofer, the candidate of the far-right, populist, nationalist, Eurosceptic, anti-immigration, anti-Islam Freedom Party of Austria, won in the first round, then lost in the second round to a Green Party candidate in December 2016. Hofer received 46% of the vote, in a 74% voter turnout. Since 1990, the FPA has never had below 10% votes in national elections, going at one point up to 26%, and in the last 10 years saw a steady increase in support. The party argues for so-called traditional family values, against policies for gender equality. In the March 2017 parliamentary elections in the Netherlands, the Labour Party (Partij van de Arbeid, PvdA) faced massive losses, while the Party for Freedom (De Partij Voor de Vrijheid, PVV) – nationalist, populist, extreme right-wing, anti-European, anti-immi- gration, anti-Islam, racist, xenophobic – reached second place with over 13% votes, gaining 20 parliamentary seats. PVV has been in operation since early 2000, and within half a decade became one of the most popular parties, oscillating lately between 10 and 20% of votes. Its politicians and policies regularly define Islam as a threat to Dutch achievements in women’s and gay emancipation. In the May 2017 presidential elections in France, Marine Le Pen of National Front lost to the liberal candidate, nevertheless getting 34% votes (11 million people) against his 66%. National Front is an extreme right-wing, nationalist, populist, anti-European, anti-immigrant, anti-Islam party, led, since 2011, by the daughter of the party’s former leader, who ran for the presidency in 2002 but lost to Jacques Chirac. The party has had mixed electoral results in the past but has been a steady feature of French politics for decades. Since Marine Le Pen took over the leadership the NF has been steadily gaining votes in regional elections. In the presidential elections the daughter got in 2017 double the votes the father got in 2002. The party stands for so-called traditional family values and against gay marriage and adoption. In September 2017 Germany will face parliamentary elections. One of the parties striving to gain power is the Alternative for Germany. It was only established in 2013 but has already gained parliamentary seats in more than half the federal states in Germany. 713439EJW0010.1177/1350506817713439European Journal of Women’s StudiesEditorial editorial2017 Editorial https://uk.sagepub.com/en-gb/journals-permissions https://journals.sagepub.com/home/ejw http://crossmark.crossref.org/dialog/?doi=10.1177%2F1350506817713439&domain=pdf&date_stamp=2017-06-16 198 European Journal of Women’s Studies 24(3) Its anti-immigration and anti-Islam views make it attractive to the newly formed move- ment that calls itself Patriotic Europeans against the Islamization of the West (PEGIDA) that grew on the waves of the European ‘immigration crisis’ and Chancellor Merkel’s ‘open door’ policy, as well as the accusations of sexual violence by immigrants against white German women on the eve of the new 2016. The party stands against same-sex marriage and for the so-called traditional family values. Populist, extreme right-wing parties supporting xenophobic, racist policies are pre- sent in parliaments and governments in many countries across Europe. In many of these countries we also hear ever more vociferous rejection of gender equality and LGBT rights, while in the same breath Muslim immigrants are accused of being patriarchal and homophobic. Far-right politicians pursue an aggressive onslaught against gender and sexuality rights activists, accusing them of endangering ‘traditional family values’, turning school children into gays and lesbians, and at the same time being blind to the dangers of Islamization brought into Europe by women wearing scarves and men attending mosques. A new, pejorative term – ‘genderism’ – is being used to discredit feminist, women’s and LGBT struggles across Europe. And while many of these far- right parties are either Eurosceptic or actively reject a European framework, a number of them are becoming ever more vocal in the European Parliament, forming coalitions in a struggle to influence the European Parliament’s policies on gender equality, LGBT issues and immigration. There is nothing new in the fact that gender and sexuality are implicated in political processes, especially those steeped in racist and nationalist identity politics, and linked to the dramatic proclamations about existential threats faced by nations and states. Black and post-colonial feminist studies have shown us, long ago, that gender and sexuality are part and parcel of the very politics of ruling, that they are the very mode by which politi- cal, economic, social and symbolic power is exercised. What may be new, however, are the ways they are combined with anti-immigration and anti-Islam discourses in the Europe of today, contributing to the sharp polarization of the electorate and the consoli- dation of the extreme right-wing political parties. Pointing to ‘polarization’ and ‘consolidation’ may appear dramatic. After the Dutch and French elections, there was a loud sigh of relief, that the far-right candidates of the PVV and NF ended up with results which did not mirror their boastful appraisal of the popular support. After all, one could say, these two countries were not split in half the way the USA was, in the November 2016 presidential election, when around 55% of eligible voters gave Hillary Clinton 48% and Donald Trump 46% of the popular vote. Donald Trump won anyway with the help of the Electoral College votes. But his cam- paign’s main slogans on the need for anti-Muslim and anti-immigration measures, with ‘Make America Great Again’ and ‘America First’, were of quite the same nature as far- right populist slogans across Europe today that decry the loss of sovereignty and national identity, the leftist-liberal onslaught on ‘traditional family values’ and the threat posed by Muslim immigrants to European Christian and humanist values. It is safe to say that, historically speaking, racism, sexism, anti-Semitism and Orientalism were never absent from European politics, or among the electorate. But for several decades after the Second World War they existed at the fringes of mainstream politics, marginalized, isolated and very often openly discredited. Today – except maybe Editorial 199 for anti-Semitism, which is still publicly considered unacceptable in the mainstream political discourse – extremist right-wing political views have become part of the main- stream, with a new legitimacy: extreme right-wing populist politicians argue they are only voicing out loud what ‘honest, hard-working men and women’ and ‘common peo- ple’ think anyway. And if this is racism, sexism, homophobia, Islamophobia and xeno- phobia, so be it. ‘Honesty’ and ‘straight talk’ is the new name for political speeches in which othering, demonization and dehumanization abound. What is consolidated is not just an extreme right-wing, populist political agenda, but the very idea that such a political agenda is a legitimate part of the political spectrum, as right, centre and left political parties are opening themselves to such agendas. What is polarized are not only specific political perspectives, but the understanding of the very foundations of social life – of what it means to be a woman and a man, what is family, where and how one belongs in a society. Primordial, essentialized identity politics of which the West has regularly accused the Rest have come home to roost in the European populism: the native, white (West) European women and men are distinguished from everybody else. Not any longer through the culturalized racism of ‘well, we are different so let’s each live our separate lives, albeit next to each other’ but through the direct, nasty racism of ‘get out of my country, you who came here to appropriate my street corner, to steal my job, to assault my daughter’. The European modernity project which promised progress to the peoples within its borders has been exposed for what it is: a cruel joke. It has failed precisely those ‘honest, hard-working men and women’, those ‘common people’ who have contributed their pro- ductive and reproductive bodily labours to build its wealth. Its seductive power was so strong that working and middle classes in Europe seldom thought, let alone believed, that it would befall on them what befell on the masses in the rest of the world: structural adjustment, precarious work, rising unemployment, shrinking benefits, privatization of water supply systems, poverty, homelessness … And the culprit was not sought among the exploiters but among the immigrants who have been seduced by the same promise: Algerian factory workers imported into the France by the village-loads in the 1920s, and Yugoslav factory workers entering Germany in the 1960s; people whose ‘third genera- tion’ children are now told to ‘go back’ where they came from – although they do come from Marseille and Munich. The culprits are also sought among those who placed their lives at the mercy of roads, waves and wire fences in an attempt to escape the wanton destruction and destitution in their countries brought about by the collusion of local and global corporatisms, extremisms and essentialisms. Neither polarization nor consolidation of populism is currently only European or only a Western problem. In April 2017 Turkey held a constitutional referendum asking the voters to support a change that would give more power to the president and the leading party for more than a decade to come. Opposition criticized the change as a direct threat to secularism, democracy, independence of the legislative branch of the government, and the checks-and-balances of the executive branch. Though accusations of fraud come from both inside and outside Turkey, the government’s count states that 51.5% of voters approved of the change, apparently accepting arguments that this will make Turkey strong, stable and secure. Public statements of government officials and politicians sup- ported these arguments by linking Islam and Turkish nationhood to ‘traditional family 200 European Journal of Women’s Studies 24(3) values’ and arguing that they are all threatened by abortion, women’s unseemly behav- iour in public places, and lack of sexual morals in schools, among others. After Trump’s election hundreds of thousands of people flooded the streets to protest. The biggest protests were organized as women’s marches but invigorated many others, such as human rights activists and lawyers who still stand up against Trump’s immigra- tion policies. In Turkey, sporadic protests ensued after the referendum, under an unprec- edented military crack-down. Already after the failed coup in July 2016 tens of thousands of activists, teachers and university lecturers, journalist and lawyers have been arrested or fired, leaving little doubt what awaits those who oppose the President. The US and Turkey may appear as totally unrelated examples, and very far from what is going on in Europe. European electoral systems are quite different from the one in the US, and there are thankfully no more military coups on the European continent. So it would seem Europeans have no reason to flood the streets in mass protest. But populisms in all those places share the same features: they create narratives of racialized, gendered and sexualized enemies, spread fears and offer seductive, simplified solutions. They destroy solidarities and empathies, and in doing so they undermine the very foundation of social justice struggles. What used to be the European Left has all but disappeared as a credible force – disintegrated, fractured into small, ineffective parties, co-opted into the homonationalist, Islamophobic and sexist politics. Many – such as Labour Party (PvdA) in the Netherlands – have arrogantly and lazily taken for granted that their worldview is still seen as the right one by a sufficient number of voters. In other parties it is believed that the threat of the extreme-right is still small, and that, when push comes to shove, people will flock around the centre, be it centre-right or centre-left. Recent election results in France and the Netherlands seem to prove this point, as people rushed to cast their vote for the centre parties not because they believed in them, but because they feared victory of far-right candidates. But as the centre moves ever farther to the right, and the far-right moves ever strongly towards the centre, this calculation is misleading and inaction dangerous. In the absence of broad alliances both within and outside their national borders, numerous women’s and feminist activist and grassroots groups across Europe are at the forefront of diverse local, community-based social justice struggles. They fight not just for traditional women-related issues, such as keeping open shelters for abused women, but also for keeping open public kitchens and youth sports facilities, or supporting home- less and poor families. On the shop-floor they fight workers’ union battles against lay- offs and shrinking labour protection alongside fighting for women’s equal pay. As refugee lawyers they battle for asylum seekers and family reunions next to combating sexual exploitation of refugee women. In many of those struggles grassroots feminists compete with the women and men who are far-right activists, or Christian and Muslim fundamentalist, who also work on the community level, door-to-door, among the poor and the marginalized. Grassroots feminism endures despite the lack of funds and public support, through the stubborn determination of its activists. Their objectives are concrete, direct, affecting the daily lives of people around them – whatever those people wear or believe in. They refuse disillusionment and pessimism on political grounds. Often totally invisible beyond a street corner, their struggles may be among the few left that could still make a Editorial 201 difference between 13% and 46% of votes for extreme far-right populist parties and presidents. Acknowledgements My thanks go the Anissa Helie and Edda Kirleis for comments and suggestions. Dubravka Zarkov International Institute of Social Studies/EUR, the Netherlands 
work_pzv5jhcx5nabth3s5mmaaq2jfi	----	266 BRITISH MEDICAL JOURNAL VOLUME 291 27 JULY 1985 Vegans Must take vitamin B12 supplements Other May need to improve egetarians their intakes of iron and protein - for example byeating plenty of legumes and nuts Cravings and aversions-At some stage in pregnancy most women experience a distortion of their usual range oflikes and dislikes offoods. Women may develop a nine month aversion to foods they usually like-for example, meat, fried foods, coffee, tea. Contrariwise and at the same time they may experience a craving for certain foods. These are often sweet foods, such as fruits and chocolate ice cream, but some remarkable non- foods-coal, soap, soil-have been recorded. Vegetarians who are pregnant may need extra dietary advice. There are several types of vegetarian. Those most at risk are vegans. It is essential for them to take a supplement ofvitamin B 12 for normal cerebral development ofthe fetus. Other lacto-ovo vegetarians, especially if they are prosperous and belong to a traditional vegetarian group, usually manage well enough but may want or need advice to optimise their protein and iron intakes. Legumes and nuts are an important part ofa balanced vegetarian diet. Professor A Stewart Truswell, MD, FRCP, is Boden professor of nutrition, University of Sydney. The second illustration is reproduced, by permission, from Taggart N, et al. BnrtishJournal ofNutrntion 1967;21:439-5 1; the third from Hytten F and Chamberlain G. ClinicalPhysiology in Obstetrics, published by Blackwell Scientific Publications; the sixth from Papoz L, etal, and the seventh from Naeye RL, both from Maternal Nutnrtion in Pregnancy: Eatingfor Two? edited by J Dobbing and published by Academic Press. Philosophical Medical Ethics Justice and allocation of medical resources RAANAN GILLON In my last article I indicated the wide range of issues concerning justice that are relevant to medical ethics. Even within the sphere of distributive justice the range is dauntingly broad. At one end of the range are what economists call microallocation decisions, of which the most dramatic deal with the allocation of scarce lifesaving resources such as haemodialysis between competing claimants. At the other end are macroallocation decisions taken at a governmental level on the division of the national "cake" between, for instance, health, other welfare, education, arts, and defence budgets. In between are varieties of what one might call mesoallocation decisions. These include decisions on how to distribute the allocated national health budget-the subject matter of the Black report,' which showed so clearly and so shockingly the statistical cor- relations throughout the nation between poverty and low social status on the one hand and adverse health outcomes on the other. (In doing so it also showed the inadequacy of assuming that overtly "health care" decisions are the only or even the most important ones in determining the nation's health.) They also include decisions on how to allocate medical resources at health authority level between the competing medical and other health care claims and decisions within a hospital on how to allocate between competing specialties and firms. More specific still are decisions for allocation among the different members of a hospital firm or health centre; and then come the microallocation decisions of each doctor or health worker distributing his or her available resources among particular patients. Although this range of decisions is exceedingly broad and disparate, all are based on some moral assessment ofhow competing Imperial Coliege of Science and Technology, London SW7 INA RAANAN GILLON, MB, MRCP, director, Imperial College health service, editor, Journal ofMedical Ethics, associate director, Institute of Medical Ethics claims can be fairly adjudicated. They are thus all explicitly or implicitly based on some theory of justice. Preliminary distinctions In the application of such a theory to problems of resource allocation it is worth making some preliminary distinctions. The first is between the formal and substantive contents of the theory. As I indicated in my last article, Aristotle's formal principle (equals should be treated equally, unequals unequally in proportion to the relevant inequality) and the impartiality and fairness it entails are widely accepted in different theories of justice whose substantive contents vary considerably. Among the substantive claims of a theory of justice (the function of which is fair adjudication between competing claims) it is important to distinguish its method for justifying itselfand dealing with competing claims for other theories of justice (for we know that such conflicting claims are likely to occur). That method itself should meet Aristotle's formal require- ments. A democratic voting structure, for example, affords a method of justly choosing between, among other things, the theories of justice preferred by different members of that democratic society. Finally, it is important to distinguish between the theory of justice itself and the equally important practicalities of applying it. Justice is not achieved simply by basing a scheme for resource allocation on a gcod theory of justice. Its decisions must be implemented. Given the wide agreement about Aristotle's formal theory it is worth noting that its acceptance, even before any substantive aspects of a theory of justice are agreed, has important practical implications for resource allocation. Firstly, it requires resource allocation decisions to be made on moral grounds and it rules out partiality and other arbitrary methods of allocation. For instance, neither doctors nor governments can decide that they prefer blondes or whites and justly allocate their resources accordingly, because o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 9 0 .2 6 6 o n 2 7 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ BRITISH MEDICAL JOURNAL VOLUME 291 whiteness and blondness are not morally relevant characteristics (for a way of justifying this conclusion which purports not to depend on prior intuitive determination of moral principles see Hare's paper on relevance2). Secondly, in requiring fairness and thus an element of mutual agreement about the principles for settling conflicts Aristotle's formal principle seems (and this is an empirical not a logical claim) to require implementation of that legal adage that not only must justice be done it must also be seen to be done. People being as they are, only thus is such agreement likely to be obtained and maintained, and only thus are the agreed principles likely to be implemented consistently and impartially as formally required. Accepting this would have important practical impli- cations for the way such decisions are taken. Which moral principles should take precedence? Once one turns to substantive theories of medical resource allocation-answers to the question "What are the relevant in- equalities that justify giving more to some and less to others?"-one meets the same sort of disagreement and complexity about which moral principles should take precedence (see bibliography) as one does with theories of justice generally. The main alternatives, however, are straightforward enough, as my 8 year old daughter briskly reminded me when I was getting into my usual tangle over these impossible questions. How should I choose one out of three dying people to have the only available lifesaving machine? "Well," she told me, sparing a minute or two from her television programme, "you could give it to the youngest because she'd live longer (welfare maximisation), or you could give it to the illest because she needs it most (medical need), or you could give it to the kindest because kind people deserve to be treated nicely (merit). No, you couldn't give it to the one you liked best (partiality), that wouldn't be fair." Nor, she decided, would "eenie meenie minee mo" (lottery) be fair because the one who needed it most, or the youngest, or the kindest might not get it. Nor did she (much to my surprise) think that the Queen should get it in preference to the poor man (social worth)-"because she's got so much already and the poor man hasn't." Of all the methods, her preferred one was to choose the illest because he needed it most-but, not surprisingly, she could not say why that was a better option than the others. Her list of options, however, is remarkably standard, and she joins many doctors in preferring medical need as the criterion of choice. Perhaps unexpectedly medical need correlates most obviously with the Marxist criterion for justice-"to each according to his need." (I should add that this criterion is not exclusively Marxist, that few doctors are Marxists, and that few would accept the first half of the Marxist slogan-"From each according to his ability.") Unfortunately, the concept of a need-as distinct from a desire, for example-is not at all clear.3 Furthermore, it is at least plausible to argue that assertion of needs entails assertion of implied value or values, in which case what are the implied values of the criterion of medical need? Prolongation of life, elimination of disease and attainment of health, and improved quality of life, in the sense of both reduction of suffering and enhancement of flourishing, are all candidates as values correlating to medical need but how are they to be chosen or ranked and what precisely do we mean by these terms? (Their complexities recall the World Health Organisation's definition of health as a state of complete physical, mental, and social wellbeing or the controversies over "sanctity of life," which I outlined in earlier articles.) Thus the apparently straightforward criterion of medical need, while it is undoubtedly a necessary criterion for just distribution of medical resources,4 in no way evades the need to make explicit the moral criteria it encompasses. Nor does it make any easier the choice between competing candidates agreed to be in medical need. Medical success as a criterion A related but by no means identical medical criterion is that of medical success. Medical resources should, it is often claimed, be allocated according to probability of medical success. This adds to the criterion of medical need one of efficiency and, like my daughter's criterion of maximal prolongation of life, corresponds roughly to the welfare maximising objective of utilitarian theories of justice. There are, of course, straightforward cases when the criterion is unproblematic: it would be absurd and wrong to give the only three available pints of a rare blood group to the patient with an incompatible group rather than to the patient with a compatible group. But the criterion of medical success is plagued by all the moral evaluative problems of medical need as well as by additional problems of how to determine medical success: what criteria are appropriate and how is success to be measured? (In this regard the economists' methods of comparing different techniques in terms of "quality adjusted life years" (QUALYs)5 seem to offer conventional methods of clinical trial considerable additional precision for comparative purposes.) The third plank of my daughter's analysis concerned merit and desert-save the life of the kindest because kind people deserve to be looked after. Other merit related criteria are forward looking rather than backward looking. A consultant physician would select "a man who would be able to continue regular work in suitable employment or a married woman with young children . . . in preference to an unemployed labourer with no fixed abode."6 A consultant in clinical renal physiology, also writing about selection for renal dialysis, believed that "[g]ainful employment in a well chosen occupation is necessary to achieve the best results; only the minority wish to live on charity"7 (even when the alternative is death?). More recently a man described as demented, intermittently violent, uncooperative, dirty, doubly incontinent, and with a tendency to expose himself and masturbate while being examined was taken off dialysis treatment "in the patient's best interests."'' How much were the patient's dementia and discomfort the reason for stopping treatment and how much his objectionable behaviour? How much, in general, should a patient's merits and demerits, personal and social, affect his being selected for livesaving medical treatment? Certainly in the medical triage of wartime return to combat duty has been an established medicomilitary criterion for treatment.' In peacetime, however, allocation of medical resources on the basis of a patient's non-medical merits is widely regarded as repugnant. How are we to account for such differing intuitions? And what about extreme cases such as Shackman's hypothetical choice between Fleming and Hitler, where only one of them could be treated?'0 A possible approach Given the fervent disagreement about which moral values should take priority in allocating medical resources it is hardly surprising that doctors on the whole tend to avoid the issue and try to concentrate on doing their best for their individual patients. Two methods of trying to cut the Gordian knot are notable. One commentator, in a different context, has argued that if not all who need scarce lifesaving resources can have them then none should." Two American theologians, Ramsey and Childress, have argued that once a preliminary assessment on broad medical suitability has been made allocation should be by randomisation, either by a lottery or on a first come first served system (with steps taken to ensure that people could not unfairly "use" the system by having inside knowledge).'2 13 I have not yet discovered an acceptable way to give consistent moral priority to any of these substantive criteria for allocation of scarce medical resources (and do not really expect to do so). Calabresi and Bobbitt plausibly suggest that societies tend to try to "limit the destructive impact of tragic choices between fundamental moral values by choosing to mix approaches over time."'4 Within such temporal cycles first one value and then another is emphasised, but "none can, for long, be abandoned." Be that as it may, it would be a mistake to suppose that either the possibility or the need for justice is undermined by such variability and disagreement about which fundamental moral value to abandon when, in a particular situation, not all can be retained. After all, justice is precisely a method for moral resolution of conflicting claims. Provided one or 27 JULY 1985 267 o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 9 0 .2 6 6 o n 2 7 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ 268 BRITISH MEDICAL JOURNAL VOLUME 291 27 JULY 1985 other fundamental moral value is given priority after due consider- ation of the different claims in the light of all of the agreed moral values and in accordance with the formal principle of justice then justice, it seems to me, is done. Thus if, in the context of allocating scarce medical resources, practical systems were set up for resolving conflicts about which value, in a particular case, should have priority, and if those systems took account of the fundamental moral values of respect for autonomy, beneficence, and non-maleficence, and if their deliber- ative structures incorporated Aristotle's formal principle of justice with its demands of formal equity, impartiality, and fairness then they would be just systems and their deliberations could be expected to yield just results despite (perhaps because of) the conflict within them. I doubt if better than that is achievable. Is less acceptable? References 1 Black DAK, Morris JN, Smith C, Townsend P, Davidson N. Inequalities in health: the Black report. Harmondsworth: Penguin, 1982. 2 Hare RM. Relevance. In: Goldman AI, Kim J, eds. Values and morals. Dordrecht: Reidel, 1978:73-90. 3 Daniels N. Health-care needs and distributive justice. Philosophy and Public Affairs 1981;10(2): 146-79. 4 Williams B. The idea of equality. In: Williams B, ed. Problems ofthe self. Cambridge: Cambridge University Press, 1973:230-49. 5 Williams A. The economic role of "health indicators." In: Teeling-Smith G, ed. Measuring the social benefits ofmedicine. London: Office of Health Economics, 1983:63-7. 6 Nabarro JDN. Who best to make the choice? BrMedJ 1%7;i:622. 7 Parsons FM. A true "doctor's dilemma." BrMedJ 1967;i:623. 8 Brahams D. When is discontinuation of dialysis justified? Lancet 1985;i: 176-7. 9 Winslow GR. Triage andjustice. Berkley: University of California Press, 1982:8. 10 Shackman R. Surgeon's point of view. BrMedJ 1%7;i:623-4. 1 I Cahn E, cited by Calabresi G, Bobbitt P. Tragic choices. New York: Norton, 1978:188, 234. 12 Ramsey P. The patient as person. 10th ed. New Haven: Yale University Press, 1979:239-75 passim. 13 Childress J. Who shall live when not all can live? Soundings: An Interdisciplinary Journal 1970;53(4):339-55. (Reprinted in: Gorovitz S, Macklin M, Jameton A, O'Connor J, Sherwin S, eds. Moral problems in medicine. 2nd ed. Englewood Cliffs: Prentice-Hall 1983:640-9. 14 Calabresi G, Bobbitt P. Tragic choices. New York: Norton, 1978:1%. Bibliography (See also cited references) Maxwell RJ. Health and wealth. Lexington: Lexington Books, 1981. Boyd KM, ed. The ethics ofresource allocation. Edinburgh: Edinburgh University Press, 1979. Campbell A. Medicine, health andjustice-the problem ofpriorities. Edinburgh: Churchill Livingstone, 1978. Wolstenholme GEW, O'Connor M, eds. Ethics in medical progress, with special reference to transplantation. London: Churchill, 1%6. Childress J. Priorities in biomedical ethics. Philadelphia: Westminster Press, 1981. Shelp E, ed. Justice and health care. Dordrecht: Reidel, 1980. Engelhardt HT. Shattuck lecture: allocating scarce medical resources and the availability of organ transplantation. N EnglJ Med 1984;311:66-71. Rescher N. The allocation of exotic medical lifesaving therapy. Ethics 1969;79(3):173-86. Parsons V, Lock P. Triage and the patient with renal failure.J MedEthics 1980;6:173-6. Klein R. Rationing health care. BrMedJ 1984;289:143-4. Mooney G. Medical ethics: an excuse for inefficiency? Journal ofMedical Ethics, 1984;10: 183-5. Dr Gillon's articles on philosophical medical ethics will resume later in the summer. Green College Lectures Contemporary challenges in education for the caring professions: education for nursing, midwifery, and health visiting JEAN McFARLANE Diversity of roles in nursing The "greater nursing profession" encompasses many roles as expressed in the Report of the Royai Commission on the National Health Service': "Within nursing there are many levels of skill and different roles.... Nursing is an imunensely varied profession. In hospitals, nurses work in acute, long stay, children's, psychiatric, maternity, and other specialised units. Outside hospital there are health visitors, home nurses, midwives, and nurses working in clinics and in general practice, as part of the primary health care team. Nurses work in administration in the NHS and health departments, in education and research, the armed forces, voluntary organisations such as the Red Cross, occupational health and international agencies. There is a great deal of overlap in the knowledge required in many branches of nursing." This diversity of roles, however, encompasses many different competencies and models of care. The nurse in an intensive care unit needs to combine a high level oftechnological competence with individualised care that supports the patient, who is experiencing Department of Nursing, University of Manchester, Manchester M13 9PT BARONESS McFARLANE OF LLANDAFF, MSC, FRCN, professor and head of department Based on a lecture given at the college on 4 February 1985. not only physical but psychological and spiritual trauma. By contrast, the psychiatric nurse uses the skills of person to person interaction as a therapeutic tool. Much of the work of nurses in the area of mental handicap lies in the use of education strategies tor social skill training. The paediatric nurse needs to be able to integrate therapeutic skills with care that will facilitate and maintain normal human development. Midwifery and health visiting have been identified as separate professional roles. The midwife assists the mother in a normal human function that is only potentially related to pathology (which the midwife must be able to recognise). She is a practitioner in her own right and has considerable decision making autonomy in her area of competence. She spends a high proportion of time using health education skills. The health visitor has a major concern with primary prevention and uses skills of health education, counselling, and social advice. The role of the health visitor is in the domain ofhealth, but she uses knowledge and skills from the disciplines of education and social work. Commonalities and interfaces The nursing curriculum has thus to be designed to prepare for a diversity of roles and models of care. We have to question what commonalities exist in the knowledge and skills needed and to what extent there is a core curriculum or foundation course that, desirably, should be common to all. At what stage should specialisa- o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 9 0 .2 6 6 o n 2 7 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ 
work_pzxc2dsgd5bnnfbv5amb6a5q4i	----	chp057.indd The European Journal of International Law Vol. 20 no. 3 © EJIL 2009; all rights reserved .......................................................................................... EJIL (2009), Vol. 20 No. 3, 729–747 doi: 10.1093/ejil/chp057 Access to Justice, Denial of Justice and International Investment Law Francesco Francioni * Abstract The development of investment arbitration in contemporary international law has helped to consolidate access to justice as a principle of both customary law on the treatment of aliens and human rights law. This development has also contributed to the emancipation of individuals and private entities from the traditional institution of diplomatic protection by opening to them direct access to international dispute settlement mechanisms. At the same time, this development has raised questions whether the far-reaching penetration of foreign investment guarantees into areas of national regulation of public interest should not be counterbalanced by corresponding opportunities for access to justice and the availability of remedies for civil society in the host state. This article examines the relevant recent practice on this matter and argues that access to justice may be a unifying principle to afford protection, both at the sub- stantive and procedural levels, to investors and peoples negatively affected by the investment, both in the territory of the host state and abroad. 1 � A Brief Historical Introduction Denial of justice lies at the heart of the development of international law on the treat- ment of aliens and of foreign investment. At the same time this notion is inextricably linked to the broader concept of access to justice, understood as the individual’s right to obtain the protection of the law and the availability of legal remedies before a court or other equivalent mechanism of judicial or quasi-judicial protection. Intuitively, this * Of the Board of Editors. This article is part of a larger research project on the role of human rights in international arbitration, funded by the Research Council of the European University Institute (EUI). The author wishes to thank his colleagues Professors P.M. Dupuy and E.U. Petersmann for the cooperative effort in promoting this project and V. Vadi, Ph.D candidate at the EUI, for her valuable research assistance on investment arbitration practice. Email: francesco.francioni@eui.eu . 730 � � EJIL 20 (2009), 729–747 type of protection is a sine qua non for any type of constitutional democracy, where the rule of law and the independence of the courts, rather than the benevolence of the ruler, provide the fundamental guarantees of individual rights and freedoms. Yet, historically, access to justice has remained problematic for aliens. Even before the formation of the modern nation state, the need for a minimum degree of protec- tion of the life, security, and property of aliens established in or visiting a foreign land had emerged in the late Middle Ages, especially in the context of the fl ourishing trade between the Italian maritime Republics – such as Venice and Genoa – and the Mediter- ranean areas under Muslim dominion. In these areas, foreign merchants coming from the Christian world could not expect the protection of the universal system of Roman law which had guaranteed the political and legal unity of the ancient Mediterranean world. On the contrary, they encountered diffi dence and marginalization by local authorities and, more fundamentally, they had to deal with the diffi culty of reconciling their need for personal and economic security with the rigid system of the personality of the law in the Islamic world. This system, informed by the close interpenetration of Islamic law and religion, was a powerful obstacle to the application of legal guarantees of contractual and property rights of non-Muslims under the lex loci . 1 The pragmatic response to this normative and jurisdictional mismatch was the development of special extraterritorial legal regimes for commercial establishments, trade centres, and warehouses maintained in Muslim lands ( fondaci ) by foreign mer- chants and the gradual recognition of a system of in situ protection of foreign mer- chants by agents of the foreign power of which they were nationals. 2 This practice constitutes a predecessor to the modern idea of ‘ free zones ’ and, more importantly, formed the basis of the early development of consular relations and of the later emer- gence of that special branch of customary international law that goes under the name of ‘ minimum standard of treatment of aliens ’ . History tells us also that this early model of international protection of foreign eco- nomic interests later degenerated into forms of sheer economic dominance and of colonialism by the European Powers. The most radical manifestation of this develop- ment was the system of ‘ capitulations ’ , an extreme form of extraterritorial imposition of foreign law and jurisdiction in the receiving state, which served to exempt their citi- zens from the sovereignty of the host state. Capitulations were gradually eliminated in the fi rst part of the 20th century and became incompatible with the principle of de-colonization later implemented within the framework of the UN Charter. But the institution of consular protection remains. Thus there also remains the principle of the ‘ minimum standard of justice ’ to be reserved to aliens and their eco- nomic interests under customary international law. An integral part of this standard is the principle of ‘ access to justice ’ . This principle presupposes that the individual who has suffered an injury in a foreign country at the hands of public authorities or of 1 On the evolution of International law in the context of the mutual contamination and cultural exchange between the Christian World and Islam see the magisterial analysis by Ago, ‘ Pluralism and the Origin of the International Community ’ , 3 Italian Ybk Int’l L (1977) 3. 2 L. Ferrari Bravo, Lezioni di diritto internazionale (1993), at 25. Access to Justice, Denial of Justice and International Investment Law � � � 731 private entities must be afforded the opportunity to obtain redress before a court of law or appropriate administrative agency. Only when ‘ justice ’ is not delivered, either because judicial remedies are not available or the administration of justice is so inad- equate, defi cient, or deceptively manipulated as to deprive the injured alien of effective remedial process, can the alien invoke ‘ denial of justice ’ : a wrongful act for which international responsibility may arise and in relation to which an interstate claim and diplomatic protection may be made by the national state of the victim. So, in its historical evolution, access to justice is inseparable from the ‘ minimum standard of treatment of aliens ’ . This is confi rmed by the customary rule requiring prior exhaustion of local remedies as a precondition of diplomatic protection. This rule presupposes the international obligation of every state to ensure access to courts to aliens and to administer justice in accordance with minimum standards of fairness and due process. However, the principle of access to justice, as an integral part of customary inter- national law on the treatment of aliens, guarantees only access to remedial process within the territory and under the law of the host state. Customary international law does not provide for an individual right of access to justice before international tribu- nals. Nor, by the same token, does it provide a right of access to the courts of a third state, for which, in principle, the alleged mistreatment of an alien in another state remains res inter alios acta . The major leap forward in the fi eld of foreign investment law is represented by the recognition and consolidation of an indisputable right of access to international jus- tice by private investors and by the extension of this right to the courts of third states to the extent that their cooperation is necessary in order to enforce international investment awards. 3 Following the phenomenal development in the past 25 years of bilateral investment treaties, regional trade agreements, such as NAFTA, 4 and, more importantly, investment arbitration, the right of access to justice for the investor has shifted from inter-state claims to the private-to-state arbitration where private actors have direct access to ‘ international ’ remedial proceedings without the traditional need for the interposition of their national state in diplomatic protection. This shift of focus has important consequences. First, it undermines the traditional dogma of international law 5 under which only states have international rights and the state intervening to protect its nationals injured abroad asserts its own right rather than the right of the injured person, with the consequence that the claimant state may at its own discretion make use of such right and of the eventual compensation it has been able to obtain. Secondly, and more relevantly for the general theme of this article, the ‘ internationalization ’ of the right of access to justice of private actors tends to blur 3 See Art. 54 of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 575 UNTS 159. Para. 1 of this Art. provides that ‘ [e]ach Contracting State shall recog- nize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a fi nal judgment of a court in that State ’ . 4 North American Free Trade Agreement between Canada, the United States, and Mexico, entered into force on 1 Jan. 1994, 32 ILM (1993) 289. 5 Mavrommatis Palestine Concessions , PCIJ Rep Series A No. 2, 30 Aug. 1924, at 12. 732 � � EJIL 20 (2009), 729–747 the traditional boundary between aliens ’ rights and human rights. This is so because the private actors in which this right is recognized free themselves from the traditional guardianship of their national state and become empowered to assert their individual rights and interests before an international dispute settlement body. This focus on the individual as the title holder of rights is the hallmark of the international law of human rights. 6 This potential convergence of traditional aliens ’ rights with human rights in the fi eld of access to justice is the conceptual point of departure for the following analysis, which will focus on three distinct but inter-linked aspects of the operation of the right of access to justice in the fi eld of foreign investment law. The fi rst aspect concerns the extent to which human rights considerations may infl uence the assessment of the international legality of the host state’s interference with the investor’s rights and on his ability to obtain judicial or arbitral protection for his investment. The second aspect relates to the emerging claim of access to justice for the host state’s population when the operation of the foreign investment is deemed adversely to affect their envi- ronment or other societal goods. The third aspect concerns the way in which access to justice may be reconciled with the traditional rule of sovereign immunity when the state of the investment adopts measures with extra-territorial effect that adversely impacts on property rights of foreign investors especially in the fi eld of fi nancial instru- ments with worldwide circulation. I will examine these three aspects in light of recent arbitral practice. 2 � Access to Justice as an Investor’s Right Several recent investment disputes have highlighted that access to justice may con- tinue to be problematic even in the presence of investment guarantees under bilateral or multilateral treaties. The most well known, dare I say notorious, case is Loewen Group v. the United States 7 concerning a claim by a Canadian company against the United States under NAFTA Chapter 11 8 and alleging discriminatory treatment, expropriation, and breach of fair and equitable standards as a consequence of litigation before the courts of Mississippi. Loewen had been sued by a local business competitor in the funeral industry who complained of predatory behaviour and restrictive business practices by the much 6 It is signifi cant that also in the ILC Arts on Diplomatic Protection this tendency to take into account the rights of the injured person, beside the traditional right of the state which exercises diplomatic protection, has found an echo in the ‘ recommended practices ’ annexed to the Arts: see ILC Draft Articles on Diplo- matic Protection (2006), Offi cial Records of the General Assembly, Sixty fi rst Session, Supplement No. 10 (A/61/10). 7 Loewen Group Inc. and Raymond Loewen v. United States of America , ICSID Case No. ARB (AF)/98/3, 26, 26 June 2003, 42 ILM (2003) 811. 8 Since 1978, the Administrative Council of the Centre for the Settlement of Investment Disputes has authorized the Secretariat to administer arbitral proceedings concerning investment disputes between Parties to the 1966 ICSID Convention and nationals of states which are not parties to the Convention. Access to Justice, Denial of Justice and International Investment Law � � � 733 larger Canadian company. During the jury trial, the strategy of the plaintiff was to emphasize the merits of the local business, its commitment to serving the local com- munity, and its struggle against the allegedly predatory practices of foreign corporate competitors. According to Loewen’s complaint, the whole trial was pervaded by con- tinuous references to nationality and patriotism – with counsel for the plaintiff liken- ing his client’s struggle with his wartime heroic effort against the Japanese. 9 The jury verdict awarded US$500 million to the plaintiff, of which US$400 million constituted punitive damages. An appeal against the decision was possible under Mississippi law; but state law required the posting of a fi nancial bond in the amount of 125 per cent of the award in order before execution of the award could be suspended pending the appeal. Faced with the prohibitive amount of the required bond and the prospect of immediate execution of the exorbitant verdict, Loewen settled the case. In the ICSID arbitral proceedings against the United States, Loewen alleged viola- tion of the NAFTA anti-discrimination provision under Article 1102, of the principles of minimum standards of treatment of aliens under Article 1105, and of the expro- priation provision of Article 1110. The United States ’ defence was that basically no government measure could be attributed to the United States and that Loewen’s loss was solely attributable to the outcome of a civil action between two private companies for which the United States could not be held accountable. What makes this case so interesting for the purpose of our discussion on access to justice is the rather schizophrenic attitude of the arbitral panel which, on the one hand, expressly recognized the fl aws in the administration of justice by the Mississippi court, but, on the other hand, declined to enter into the merits of the case because of the plaintiff’s alleged failure to exhaust local remedies in the United States and his inability to satisfy the rule of continuity of claims (Loewen having in the meantime become incorporated in the United States). In the words of the panel, the conduct of the trial judge was so fl awed that it constituted a miscarriage of justice amounting to a manifest injustice as that expression is understood in international law 10 . . . the trial involving O’Keefe and Loewen was a disgrace. By any standard of evaluation, the trial judge failed to afford Loewen the process that was due . . . the methods employed by the jury and countenanced by the judge were the antithesis of due process. 11 In a surprising ending to the saga, the arbitral tribunal was at pains to explain why, even in the face of manifest injustice, a remedy could not be granted: A reader following our account of the injustices which were suffered by Loewen . . . in the courts of Mississippi could well be troubled to fi nd that they emerge from the present long and costly proceedings with no remedy at all . . . There was unfairness here towards the foreign investor. Why not use the weapons at hand to put it right? . . . This human reaction has been present in our minds throughout but we must be on guard against allowing it to control our decision . . . the interest of the international investing community demand that we must observe the principles which we have been appointed to apply and stay our hands. 9 Loewen , supra note 7, at para. 61. 10 Ibid. , at para. 54. 11 Ibid ., at paras 119 and 122. 734 � � EJIL 20 (2009), 729–747 This is an extraordinary statement. What are the principles the panel was appointed to apply? It seems clear that such principles are those clearly expressed in NAFTA Chapter 11: i.e., non-discrimination, prohibition of uncompensated expropriation, and minimum standard of justice under international law. This standard certainly includes access to effective remedial proceedings. But rather than focusing on these principles and standards, the panel preferred to apply a purely formalistic notion of ‘ denial of justice ’ coinciding with the absolute fi nality of abstractly available legal rem- edies, no matter how uncertain and remote they might have been. What was at stake in this case was the possibility of a petition for certiorari before the Supreme Court of the United States to seek the annulment of the Mississippi verdict. But this remedy was purely speculative. The abstract availability of a domestic law remedy is not an obsta- cle to the admissibility of an investor’s claim under international law. Judicial practice is quite clear on this matter, as one can see from the following cases. In the ELSI case – cited by the tribunal to support the view that the local remedies rule is part of customary international law – the International Court of Justice (ICJ) applied this rule subject to the test of reasonableness and effectiveness. In that case, involving a claim by the United States against Italy, the International Court of Justice correctly rejected Italy’s claim that the United States investor had failed to exhaust in Italy a theoretically possible action in tort by the parent company, once all civil and administrative actions had already been exhausted by the Italian subsidiary against local and national authorities. The Court applied the rule of exhaustion of local rem- edies together with the rule of reason, which required that Italy should prove the effectiveness of the further remedy in order to preclude the admissibility of the inter- national claim: Italy contends that Raytheon and Matchlett could have based such an action before the Italian courts on Article 2043 of the Italian Civil Code, which provides that ‘ Any act . . . which causes wrongful damages to another person implies that the wrongdoer is under and obligation to pay compensation for those damages ’ . . . . In the present case, however it was for Italy to show, as a matter of fact, the existence of a remedy which was open to the United States stockholders and which they failed to employ. The Chamber does not consider that Italy has discharged that burden. 12 Similarly, in the recent judgment (Jurisdiction) in the A.S. Diallo case, 13 the Inter- national Court of Justice rejected the respondent state’s preliminary objection to the admissibility of the case based on the alleged failure of the investor to exhaust local remedies. The Court fl atly stated: It is for the respondent to convince the Court that there were effective remedies in its domestic legal system that were not exhausted. 14 12 ICJ, Case Concerning Elettronica Sicula Spa (ELSI) , Judgment 20 July 1989 [1989] ICJ Rep, at paras 61 and 62. 13 ICJ , Ahmadou Sadio Diallo, Republic of Guinea v. Democratic Republic of Congo (PreliminaryObjections ), judgment of 24 May 2007. 14 Ibid., at para 44. Access to Justice, Denial of Justice and International Investment Law � � � 735 This dispute concerned the taking of the assets and the expulsion of a Guinean investor in the Democratic Republic of Congo (DRC) by an order of the Prime Minis- ter 15 of the DRC (at the relevant time Zaïre) in the form of a non-reviewable ‘ refusal of entry ’ . This legal characterization of the expulsion measure had the effect of depriving the foreign investor of any possibility of judicial or administrative recourse against the expulsion, which led the Court to conclude that the DRC could not now rely on an error allegedly made by its administrative agencies at the time Mr Diallo was ‘ refused entry ’ in order to claim that he should have treated the measure as an expulsion. He was thus justifi ed in relying on the consequences of the legal characterization given by the Zaïrean authorities, ‘ including for the purpose of the local remedies rule ’ . Looking back at Loewen in light of the above ICJ precedents, we come to the para- doxical conclusion that the rule of prior exhaustion of local remedies has received more reasonable and fl exible application in the context of inter-state claims for dip- lomatic protection before the ICJ – where the primary focus on states ’ rights would justify a more rigorous application of the rule and more deference to state sovereignty – than in private-to-state arbitration, where the primary objective is the protection of the private rights of the investor. Loewen is not only a bad precedent for access to justice; it is also a bad precedent for the investment community, which can hardly benefi t from the extreme and unrealis- tic application of the rule of prior exhaustion of local remedies when the risk of grave loss is imminent and a miscarriage of justice has been acknowledged. All the more so in a case such as this where the alien is facing the threat of the execution of an exor- bitant verdict of punitive damages – which remain highly contested in international law – and when further judicial protection is barred by an excessive bond. 16 Unlike in Loewen , the ICSID Tribunal in Mondev v. United States 17 made express refer- ence to international law and to international judicial precedents 18 in order to defi ne the boundaries of the right of access to justice and the corresponding scope of the notion of ‘ denial of justice ’ . The case again concerned a NAFTA Chapter 11 claim fi led by a Canadian company against the United States for the alleged discriminatory expropria- tion without compensation of the claimants ’ rights arising out of a commercial real property development contract entered into with the City of Boston and the Boston Redevelopment Authority. When a dispute arose out of the execution of the contract, the investor successfully sought damages before the courts of Massachusetts, only to see the favourable jury verdict reversed by the State Supreme Court on grounds of domestic sovereign immunity of local regulatory authorities. Was the application of the doctrine of statutory immunity of a local authority a denial of the right of access to 15 Ibid. , emphasis added. 16 For a critical analysis of this case see the forum discussion in 6 The Journal of World Investment and Trade , Feb. 2005, with contributions by J. Werner and M. Meldelson, at 80 – 97. 17 Mondev International Ltd v. United States of America , ICSID (Additional Facility) Case No. ARB(AF)/99/2, Award, 11 Oct. 2002, 42 ILM (2003) 85. 18 See in particular the reference to the ELSI case in ibid., at para. 127. 736 � � EJIL 20 (2009), 729–747 justice? The ICSID Tribunal provided a negative answer to this question. First, it reiter- ated the principle that under investment treaties parties have the option to seek local remedies and if, in doing so, they lose on the merits, ‘ it is not the function of NAFTA tribunals to act as courts of appeals ’ . Secondly, and most importantly for our discus- sion, the tribunal adopted a rather restrictive notion of ‘ denial of justice ’ . Building on previous arbitral precedents, such as Azinian v. Mexico , 19 the tribunal concluded that the exercise of regulatory powers by local government authorities and the application of statutory immunity in respect of the exercise of their offi cial functions could not give rise to a claim of unlawful expropriation under NAFTA. In spite of this negative outcome, the Mondev decision displays a rare consideration of international judicial practice in the determination of the scope of access to justice. Not only does it make express reference to the case law of the International Court of Justice, in particular to the ELSI judgment, but it also takes into consideration the human rights standard guaranteed by Article 6(1) of the European Convention on Human Rights. 20 This provision, as is well known, requires that in order to right a wrong a court must be open to recourse and that ‘ fair and public hearings within a reasonable time by an independent and impartial tribunal established by law ’ are guaranteed by the state. Ultimately, the award in Mondev concludes that Article 6(1) is too advanced to provide a criterion for decision in investment arbitration. However, it is noteworthy that an arbitral award has considered, even in abstracto, that a provi- sion contained in a human rights instrument to which neither the respondent nor the national state of the claimant was a party could have provided a criterion for deter- mining the scope of the right of access to justice. In the view of this writer, a better solution would have been to arrive at the identi- fi cation of an international standard on access to justice taking into account the law and practice of international human rights bodies – including the European Court of Human Rights – and then to ask whether the functional immunity of the respond- ent’s regulatory bodies could serve a legitimate objective so as to justify an exception to that right in the particular circumstances of the case. This would have helped the consolidation of an international standard on access to justice as a right of aliens and a human right alike, and without compromising the ability to subject this right to restrictions necessary and proportionate to safeguard a legitimate objective, such as the interest of regulatory bodies in pursuing democratically deliberated public poli- cies, without fear of being held liable for their decisions. 21 19 Robert Azinian, Kenneth Davitian and Ellen Baca v. United Mexican States , ICSID (Additional Facility) Case No. ARB(AF)/97/2, Award, 1 Nov. 1999, 39 ILM (1999) 537, at 552. 20 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, 213 UNTS 222. 21 If this approach had been followed in Mondev it would have been easy for the panel to realize that also in relation to Art. 6(1) ECHR, the European Court has accepted a wide range of procedural and substantive restrictions including immunities of public institutions. For a review of the relevant practice see Francioni, ‘ The Right of Access to Justice under Customary International Law ’ , in F. Francioni (ed.), Access to Justice as a Human Right (2007), at 33 ff. In the same volume, see also the specifi c contribution by Scheinin, ‘ Access to Justice before Human Rights Bodies: Refl ections on the Practice of the UN Human Rights Committee and the European Court of Human Rights ’ , at 135 – 152. Access to Justice, Denial of Justice and International Investment Law � � � 737 In this brief overview of the arbitral practice on investors ’ right of access to justice it is useful to mention also a recent ICSID award which sheds light on the procedural dimension of the right of access to justice. In Saipem v. Bangladesh , the claimant, an Italian company operating in the oil and gas industry, complained of a violation of the Italo-Bangladeshi bilateral investment treaty as a consequence of an allegedly unlaw- ful interference with the investment contract by the combined action of Petrobangla, a Bangladeshi public instrumentality, and Bangladeshi courts. The contract concerned the construction of a natural gas pipeline. As the project was signifi cantly delayed because of strong opposition by the local population, a dispute arose over contract performance. Saipem initiated arbitration proceedings under the rules of the Interna- tional Chamber of Commerce (ICC) and Petrobangla responded by fi ling an application before the court of Dacha seeking revocation of the ICC’s authority to deal with the case. At the same time, Petrobangla applied to the courts for an injunction to stay all further arbitration proceedings. The Supreme Court of Bangladesh granted a restrain- ing order. The IIC tribunal proceeded with the arbitration and awarded damages to Saipem, notwithstanding the Bangladeshi injunction. At this point Petrobangla fi led an action before the High Court division of the Supreme Court of Bangladesh seek- ing the annulment of the award: the Court held that there was no award to annul; the ICC arbitration had proceeded illegally, in violation of the Bangladeshi restrain- ing order, and thus the award had to be considered null and void. Saipem fi led an ICSID claim invoking the bilateral investment treaty between Italy and Bangladesh and claiming that Bangladesh had violated its obligations towards the foreign inves- tor under Article 5 of the BIT. The ICSID tribunal has affi rmed its jurisdiction, reject- ing Bangladesh’s preliminary objection to admissibility based on the alleged ‘ abuse of process ’ – i.e. seeking to enforce an allegedly invalid ICC award under the guise of an ICSID claim – on the basis of the correct recognition that Saipem’s claims simply deal with an allegedly wrongful interference by Bangladeshi courts with the arbitra- tion process and with the investor’s ability to obtain judicial protection of his rights. 22 On 30 June 2009 the arbitral tribunal delivered its award on the merits (ICSID Case ARB/05/07). It confi rmed that the right to arbitrate under a contract can form the object of expropriation, and, more important for the theme of this article, that a local judiciary’s intervention on an arbitral process can amount to a violation of interna- tional law when it constitutes a manifest abuse of supervisory powers. The award has not yet been published. 22 Saipem Spa v. the People’s Republic of Bangladesh , ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 Mar. 2007. It is interesting to note that in this Decision at paras 130 and 132 the Tribunal made a reference to the case law of the ECtHR to support the fi nding that rights under judicial decisions are protected property and that court decisions nullifying them may amount to expropriation. 738 � � EJIL 20 (2009), 729–747 3 � Access to Justice by Individuals and Groups Affected by the Investment The increasing impact of foreign investment on the social life of the host state has raised the question whether the principle of access to justice, as successfully developed to the benefi t of investors through the provision of binding arbitration, ought to be matched by a corresponding right to remedial proceedings for individuals and groups adversely affected by the investment in the host state. This question arises especially in circumstances in which the foreign investment has an actual or potential impact on the health, the environment, or socio-cultural values of the host state’s population. Under normal circumstances, the right of access to a court for the local population should be guaranteed by the law and the justice system of the host state. However, the peculiar feature of modern investment law is that the host state ultimately delegates to an international mechanism of dispute settlement – ICSID, NAFTA, etc. – the reso- lution of disputes arising out of the investment within its territory. This delegation undercuts the authority of national courts to deal with investment disputes and makes the judicial protection that they may provide against harm caused by the investor subject to extensive review by compulsory international arbitration. Court decisions in the host state upholding complaints brought by private parties against a foreign investor may be attacked by the investor before an arbitral tribunal on the ground that they constitute wrongful interference with the investment. Thus, how can we in these conditions safeguard access to justice for citizens and social groups who are, or have the well-found fear of being, injured by the investment or by the modalities of its conduct in the host state? At the substantive level, an answer to this question can be found in the role that the defendant state may play in introducing health, environmental, or social concerns on behalf of its citizens or social groups into the arbitration process. This would permit opening the arbitration to private claims that the host state would endorse in a sort of reverse model of diplomatic protection: the territorial state would espouse the claim of its own citizens against the investor rather than vice versa. This approach has its limits. First, it presupposes that the state is willing to take up the claims of individuals and social groups against the investor. This reproduces the paternalistic model of gov- ernmental espousal of private claims which does little to advance the individual right of access to justice. Secondly, the host state may not be interested in bringing health, environmental, or social concerns to bear on the arbitration process, especially when the state has authorized the investment against the wishes of special segments of the population. Thirdly, the terms of reference of the arbitral tribunal may leave little room for the consideration of counterclaims brought on behalf and in the interest of the local population. This notwithstanding, a certain role can be carved out for the host state as a guar- antor of the right of its own population to have access to justice within the mechanism of investment arbitration. First, the host state may demand that the applicable law in the arbitration of the investment dispute include provisions of its own domestic law which bind the foreign investors to the respect for health, environmental, or social Access to Justice, Denial of Justice and International Investment Law � � � 739 standards which the local population deems to be endangered by the investment. This is consistent with Article 42(1) of the ICSID Convention, which provides that, absent stipulation to the contrary by the parties, the Tribunal ‘ shall apply the law of the Con- tracting State party to the dispute ’ . In addition, one could argue that a progressive interpretation of the ‘ fair and equitable standard ’ , which has been systematically adopted in BITs practice and in regional agreements such as NAFTA, entails that the investor who seeks equity for the protection of his investment must also be account- able, under principles of equity and fairness, to the host state’s population affected by the investment. It is hard to conceive of equity as a one-sided concept: equity always requires fair and equitable balancing of competing interests, in this case the inter- ests of the investor and the interest of individuals and social groups who seek judicial protection against possible adverse impacts of the investment on their life or their environment. 23 The second approach to safeguarding the local population’s right of access to justice is recourse to international mechanisms for the protection of human rights, whenever they are available and are open to individual recourse. One of the most important precedents in this context is the decision of the Inter-American Court of Human Rights in Awas Tingni v. Nicaragua. 24 This case arose out of a dispute between the indigenous community of Awas Tingni and the government of Nicaragua as a consequence of that government’s decision to grant a foreign company a concession for logging in an area claimed by Awas Tingni as ancestral land subject to traditional tenure. After a complex series of cases before Nicaraguan courts, the matter was brought before the Inter-American Commission of Human Rights and subsequently before the Inter- American Court. The result of these proceedings was the cancellation of the logging concession by the Government of Nicaragua and the recognition by the Inter-Amer- ican Court that under the American Convention on Human Rights the customary right of the Awas Tingni community over the disputed land had to be respected, together with their right to the preservation of their cultural integrity. Nicaragua was found responsible for the violation of Article 25 of the Convention, which guarantees the right of everyone ‘ to simple and prompt recourse, or any other effective recourse . . . for protection against acts that violate his fundamental rights ’ . 25 Another important precedent for local communities ’ action to counteract the harm- ful impact of foreign investments is the 2001 case of Social and Economic Rights Action (SERAC) v. Nigeria , where the African Commission on Human and Peoples ’ Rights affi rmed its jurisdiction to hear a complaint that foreign oil and gas investments were 23 On the concept of ‘ fair and equitable treatment ’ in foreign investment practice see the detailed study by I. Tudor, Great Expectations. The ‘ Fair and Equitable Treatment ’ Standard in the International Law of Foreign Investment (2006), PhD Thesis, European University Institute. Generally on the role of equity in inter- national economic law see F. Francioni, ‘ Equity ’ , in Max Planck Encyclopaedia of Public International Law (forthcoming). 24 The Mayana (Sumo) Awas Tingni Community v. Nicaragua , Inter-Am Ct HR (ser. C) No. 124 (15 June 2005). 25 American Convention on Human Rights, signed in San Jose, Costa Rica, 22 Nov. 1969, entered into force 18 July 1978, 9 ILM (1969) 101. 740 � � EJIL 20 (2009), 729–747 causing serious health and environmental harm to the Ogoni people in the Niger delta. The Commission found that no effective remedies had been made available to the complainants by the Nigerian authorities, and held that the oil exploration and production activities by foreign investors had caused an intolerable level of pollution, severe environmental degradation, and serious health damage so as to threaten the very existence of the Ogoni people. 26 These precedents attest that when remedies are available under human rights treaties, investors ’ rights do not stand in the way of the recognition of individuals ’ and groups ’ right of access to justice. But since access by individuals and groups to international mechanisms of human rights protection remains dependent on specifi c treaty regimes, this option is of limited use, and mostly available at regional level for the purpose of providing a forum for remedying abuses or wrongful damage caused by the investor to the local population. A third approach to improving the opportunities of access to justice by the host state’s population is through the indirect means of amici curiae ’ s participation in investment arbitration. As is known, the institution of amici curiae is a product of common law culture, and more particularly of the United States practice where the adjudicatory function is open to the participation of individuals or entities who, with- out being parties to the litigation, are capable nevertheless of providing useful factual information and legal insights in addition to those provided by the disputing parties. Amici curiae are not interveners in a technical sense, since they do not vindicate their own rights. Their function as instruments of access to justice is only indirect. But to the extent that amicus curiae briefs bring into the arbitral proceedings factual and legal considerations concerning the safeguarding of public goods, such as human and en - vironmental health or the preservation of local cultural heritage, they can become a powerful tool to widen the scope of investment arbitration so as to encompass consid- eration of public policy concerns with regard to the adverse effects of an investment. This is an important rationale for amici curiae , in view of the extensive limitation that investment arbitration puts on a host state’s sovereignty with respect to a wide range of matters traditionally reserved to the domestic jurisdiction. Such limitations become apparent when we observe that regulatory measures in the fi eld of public health, environmental quality, security, or socio-cultural affairs have become subject to pen- etrating review by investment arbitration under standards of discrimination, trans- parency, good faith, and fairness, with a profound impact on the ability of the state to pursue primary public goods and general interests of society. This is why amicus curiae participation has become and will remain in the foreseeable future an important fea- ture of the administration of justice in the fi eld of foreign investments. Although this type of participation is still not contemplated in proceedings before the International Court of Justice, petitions for amicus curiae intervention have been accepted in the practice of international dispute settlement bodies and, more recently, 26 For a discussion of this case see Nwobike, ‘ The African Commission on Human and Peoples ’ Rights and the Demystifi cation of Second and Third Generation Rights under the African Charter ’ , 1 African J Legal Studies (2005) 129, at 131. Access to Justice, Denial of Justice and International Investment Law � � � 741 have been formally codifi ed in the rules of procedure of relevant treaty bodies. First, WTO practice, notwithstanding the absence of specifi c provisions in the Dispute Set- tlement Understanding (DSU), 27 has allowed the presentation of briefs by amici curiae in a large number of cases on the basis of an expansive interpretation of the rules of procedure. This development, although initially opposed by certain developing coun- tries in the WTO, has been supported by commentators 28 and by the majority of the industrialized WTO Members, notably the United States. Since the Asbestos case, 29 the Appellate Body has adopted specifi c rules and time limits to prevent abuses and undue delays in the dispute settlement procedure. 30 Acting upon the WTO example, petitions for amicus curiae participation have been fi led and admitted in investment arbitration, both under NAFTA Chapter 11 and under ICSID. NAFTA tribunals have allowed amicus briefs in three cases: Methanex , 31 UPS , 32 and Glamis. 33 All these cases have been decided in the merits. Although it is not clear to what extent the amicus curiae participation has infl uenced, or may infl uence, the arbitral decision, their briefs have certainly helped to integrate important environ- mental and social perspectives in investment disputes involving complex public policy interests. 34 In Glamis , the NAFTA tribunal has allowed the application for participa- tion as amicus curiae by a tribal community – the Quechan Indians. The social group is directly affected by a Canadian company’s contested mining investment in North- ern California in a desert conservation area near their tribal lands which includes sacred and ancestral sites. In these cases presentation of amicus curiae briefs has been accepted in spite of the absence of specifi c authorizing provisions in NAFTA. Further, this practice has been endorsed by a formal statement of the NAFTA Free Trade Com- mission on non-disputing party participation of 7 October 2003. 35 27 Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, 33 ILM (1994) 1197, in force since 1 Jan. 1995. 28 Boisson de Chazournes, ‘ Transparency and Amicus Curiae Briefs ’ [2004] J World Investment and Trade 333. 29 See WTO Panel Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Prod- ucts , WT/DS135/R, adopted 18 Sept. 2000, and WTO Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products , WT/DS135/AB/R, adopted 12 Mar. 2001. 30 For a full account of this practice see Baroncini, ‘ Società civile e sistema OMC di risoluzione delle con- troversie: gli amici curiae ’ , in F. Francioni et al. (eds), Organizzazione Mondiale del Commercio e diritto della Comunità Europea nella prospettiva della risoluzione delle controversie (2005), at 75. 31 Methanex v. United States of America , Final Award, 9 Aug. 2005, 44 ILM (2005) 1345. 32 United Parcel Service of America Inc. (UPS) v. Canada , Award on the Merits, 24 May 2007, available at: www.naftaclaims.com/Disputes/Canada/UPS/UPS-Canada-Final_Award_and_Dissent.pdf. 33 Glamis Gold Ltd v. the Government of the United States of America , Notice of Arbitration, 9 Dec. 2003, avail- able at: www.state.gov/documents/organization/27320.pdf. 34 The petitioners in the Methanex case, supra note 31, were the International Institute for Sustainable Development, Communities for a better Environment, and Earth Island Institute; in UPS, supra note 32, they were the Canadian Union of Postal Workers and the Council of Canadians. 35 Statement of the North American Free Trade Commission on Non-Disputing Party Participation, 7 Oct. 2003, available at: hwww.ustr.gov. http://www.naftaclaims.com/Disputes/Canada/UPS/UPS-Canada-Final_Award_and_Dissent.pdf http://www.state.gov/documents/organization/27320.pdf http://www.ustr.gov 742 � � EJIL 20 (2009), 729–747 As far as ICSID arbitration is concerned, as in NAFTA, no express provision on non- disputing party participation was contained in the 1965 World Bank Convention or in the ICSID arbitration rules. 36 In the early case of Agua del Tunari v. Bolivia , amicus curiae submission was denied based on the absence of authorization provisions and on a strict interpretation of the ‘ consensual nature ’ of ICSID arbitration. 37 However, in several subsequent cases, 38 ICSID Tribunals have changed position and have admitted amicus participation in the arbitration proceedings on the basis of a liberal interpreta- tion of Article 44 of the ICSID Convention, which allows residual discretionary powers to the Tribunal on procedural questions not explicitly covered by the Convention or the Arbitration Rules. This jurisprudential development has led to a formal amend- ment of the ICSID Arbitration Rules, 39 with the adoption in 2006 of a specifi c enabling provision, the new Rule 37(2), which reads as follows: After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute . . . to fi le a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a fi ling, the Tribunal shall con- sider, among other things, the extent to which: a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; b) the non-disputing party submission would address a matter within the scope of the dispute; c) the non-disputing party has a signifi cant interest in the proceeding. The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an oppor- tunity to present their observations on the non-disputing party submission. This amendment was accompanied by a modifi cation also of Rule 32(2) which allows the presence of external observers at the arbitration hearings. These develop- ments in arbitral practice and the formal opening in the ICSID Rules of arbitration to the participation of representatives of civil society, experts, and NGOs is certainly not a panacea to cure all the existing defects and limits of access to justice in the context of investment arbitration. Yet, it has the unquestionable merit of having permitted the emergence in international law of the idea of civil society as an important participant in the resolution of investment disputes. 40 Such participation is independent of the 36 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 575 UNTS 159. The Convention entered into force on 14 Oct. 1966. 37 Agua del Tunari SA v. Bolivia , ICSID Case No ARB/02/3, Decision on Jurisdiction, 21 Oct. 2005. The reason for the denial of the admissibility of amicus briefs is explained in a letter from the President of the Tribunal attached to the award as Annex III. 38 Aguas Argentinas SA, Suez Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentina , ICSID Case No. ARB/03/19, Order of 19 May 2005; Aguas Provinciales de Santa Fé SA , Suez Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA v. Argentina , ICSID Case No. ARB/03/17, Order of 17 Mar. 2006; Bywater Gauff v. Tanzania , ICSID Case No. ARB/05/22, Procedural Order of 2 Feb. 2007. It is interesting to note that all these cases concerned foreign investments in essential public services such as the provision of water. 39 The Amended Rules and Regulations came into effect on 10 Apr. 2006 and are available at: www.worldbank. org/icsid/basicdoc/CRR_English-fi nal.pdf. 40 On the concept of civil society and its impact on the development of international law see P.M. Dupuy and L. Vierucci (eds), NGOs in International Law-Effi ciency in Flexibility? (2008). http://www.worldbank.wporg/icsid/basicdoc/CRR_English-? nal.pdf http://www.worldbank.wporg/icsid/basicdoc/CRR_English-? nal.pdf Access to Justice, Denial of Justice and International Investment Law � � � 743 interests both of the investor and, in principle, also of the disputing state, and it is capable of giving voice to the interests of specifi c groups or communities especially affected by the investment or, conversely, to the general interests of the international community which transcend the policy concerns of the host state. 4 � Access to Justice for the Protection of Extraterritorial Investors The third and fi nal aspect of the role of the right of access to justice in the context of international investment law to be examined is the extent to which it may affect state immunity in the event of actions brought before domestic courts by extraterritorial investors. The paradigmatic case is the default on bonds placed on the global mar- ket by a state which later faces an economic and fi nancial crisis, and the consequent necessity of rescheduling and reorganizing its public debt with consequent injury to the foreign bond holders. Default on public debt has a long history in international law. In the 19th century such default was deemed to justify resort to force by the capital-exporting state against the defaulting state. The Drago – Porter Convention of 1907 41 was the fi rst interna- tional instrument to place some restraint on such use of force. 42 Later, with the UN Charter and the development of international law in the post-World War II period, the use of force in international relations became unlawful, including for the purpose of recovering money. So, in contemporary international law access to courts or other remedial process, such as arbitration, is essential for the protection of rights of private individuals or entities who have invested their money in fi nancial instruments issued by foreign governments, who need to resort to the global market to fi nance their eco- nomic development. However, when the governments default, the availability of effective remedies from national courts is restricted by the doctrine of sovereign immunity. This doctrine has been invoked in cases of moratoria or rescheduling of foreign debt by Nigeria, 43 Mexico, 44 Argentina, 45 and many other countries, and has been revived in relation to the worldwide series of cases surrounding the spectacular default on the Argentine bonds following that country’s economic crisis of 2001 – 2002. Thousands of people 41 Hague Convention II on the Limitations of the Employment of the Use of Force for the Recovery of Contract Debts, signed on 18 Oct. 1907, 36 Stat. 2241; Treaty Series 537. 42 The Convention did not rule out the use of force for the recovery of money loaned to another country but made its use conditional upon the refusal of the debtor state to accept international arbitration or upon its failure to enforce an arbitral decision on the matter. 43 See the landmark case, Trendex v. Central Bank of Nigeria , British Court of Appeals, Civil Division, 13 Jan. 1977 [1983] Int’l L Rep 112. 44 See the famous case of Callejo v. Bancomer , US Court of Appeals for the Fifth Circuit, 8 July 1985, 764 F2d (1985) 1101. 45 US Supreme Court, Republic of Argentina v. Weltover , 12 June 1992, 504 US 607. 744 � � EJIL 20 (2009), 729–747 who had invested their savings in the defaulted bonds faced the prospect of a transac- tion with the Argentine government which would have entailed the repayment of a fraction of the value of their investment capital, or seeking justice at the international or domestic level. At the international level, the remedies available were diplomatic protection by the national state of the investor or resort to arbitration. The fi rst avenue presented serious obstacles because of the very special feature of the Argentine bonds dispute. First, the claimants, who had never set foot on Argentine soil, had bought the bonds through their banks, and were scattered all over the world, could have been required to exhaust whatever local remedies were available in Argentina as a condition of admis- sibility of the diplomatic claim under customary international law. This would have presented formidable diffi culties and unfair hardship for the claimants. Secondly, even if the claim were held admissible, in the merits hearing the claimant state would have to prove that the bond default constituted an international wrongful act by Argentina under the classical rules on the treatment of aliens. But are such rules applicable to a situation of extraterritorial injury? And if so, could Argentina not invoke fi nancial distress and necessity as a circumstance excluding wrongfulness, as provided for by Article 25 of the 2001 ILC Articles on State Responsibility? The answer to these ques- tions is far from clear, given also the uncertainty which has emerged in arbitral prac- tice with respect to the admissibility of the ‘ necessity ’ plea advanced by Argentina in several investment disputes brought before ICSID Tribunals. 46 Given these diffi culties it is not surprising that diplomatic protection has not been forthcoming in the case of the Argentine bonds. Instead, several international arbitra- tion claims have been brought by Italian investors before the ICSID. 47 The claims are based on the 1991 Argentina – Italy treaty on economic cooperation 48 and are cur- rently pending. Although the avenue of international arbitration is more promising than diplomatic protection because of the direct access of injured individuals to an international redress mechanism, it is not clear whether it will yield effective remedies. For one thing, it may be open to dispute whether the purchase of bonds outside the 46 In CMS Gas Transmission Company v. Argentine Republic , ICSID Case No. ARB/01/8, Award, 12 May 2005, the Tribunal held that the defence of necessity was not admissible because the measure adopted by Argentina with regard to the investment was not the only available response to the economic crisis and because the Government had signifi cantly contributed to the materialization of the fi nancial crisis. In LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. Argentine Republic , ICSID Case No. ARB/02/1, Decision on Liability, 3 Oct. 2006, instead, the Tribunal conceded the state of necessity, but concluded that such state does not exclude the obligation to compensate the injured investor, because necessity is only temporary and the duty to provide reparation revives as soon as necessity is terminated. Both awards are available at: www.worldbank.org/icsid/. 47 Italian Holders of Argentine Sovereign Bonds v. Argentina , ICSID Case No. ARB/07/5, registered 7 Feb. 2007; Giordano Alpi and others v. Argentine Republic , ICSID Case No. ARB/08/9 registered on 28 July 2008, and Giovanni Alemanni and others v. Argentine Republic , ICSID Case No. ARB 07/8 registered on 27 Mar. 2007. 48 Accordo fra la Repubblica Italiana e la Repubblica Argentina sulla promozione e protezione degli investi- menti, 3 June 1988, available at: www.sice.oas.org/Investment/BITSbyCountry/BITs/ARG_Italy.pdf. http://www.worldbank.org/icsid/ http://www.sice.oas.org/Investment/BITSbyCountry/BITs/ARG_Italy.pdf Access to Justice, Denial of Justice and International Investment Law � � � 745 territory of the issuing state constitutes an investment under the terms of the ICSID Convention and of the relevant bilateral treaty. Further, questions of dual nationality may render some claims inadmissible. At the substantive level, the defence of neces- sity remains a potential obstacle. This brings us back to the question of access to courts and state immunity. In this respect the fate of bondholders ’ actions against Argentina has been different in differ- ent jurisdictions. In Italy, where, ironically, a very large number of private investors have been injured, the courts have consistently declined to exercise jurisdiction on the ground that Argentina was entitled to sovereign immunity under international law. The Italian Court of Cassation in an important decision of 27 May 2005 in plenary session ( Sezioni Unite ) 49 sealed this jurisprudential approach by recognizing that the conduct of the Argentine government had the ‘ public purpose . . . of protecting the pri- mary need of economic survival of the population in a historical context of very seri- ous national emergency ’ . On the contrary, in the United States, following the pivotal decision in Republic of Argentina v. Weltover , 50 the Supreme Court has consistently held that global bonds issued by Argentina fall within the commercial exception to sover- eign immunity. 51 The case law of German courts also stands in contrast to the Ital- ian jurisprudence so deferential to sovereign immunity: the Frankfurt Landgericht in a judgment of 14 March 2003 denied immunity on the basis of a careful reconstruction of the customary rule of restrictive immunity and dismissed the plea of ‘ necessity ’ on the basis of the argument that, as a norm of customary international law, it may not be applied to the relations between a state and private individuals. 52 Although the lat- ter conclusion by the German court is open to question – since necessity as a circum- stance excluding wrongfulness is to be correctly characterized as a ‘ general principle of law ’ , in the terms of Article 38(1)(c) of the ICJ Statute, and as such applicable to relations between governmental and private entities – its restrictive interpretation of the customary law of immunity as well as the similar interpretation followed in US judicial practice is correct. Both the 2004 UN Convention on State Immunity 53 and the European Convention on the same subject 54 include ‘ commercial transactions ’ among the exceptions to immunity. The preparatory work of the UN Convention clearly indicates that the issue of government bonds was considered by the ILC to be unquestionably part of the commercial activities of states. 55 Further, there is no basis 49 Decision No. 11225, reproduced in Rivista di diritto internazionale privato e processuale (2005), at 1094. 50 Supra note 41. 51 For reference to the vast number of US judicial decisions on this matter see Bonafé, ‘ State Immunity and the Protection of Private Investors: The Argentine Bonds Case before Italian Courts ’ , XVI Italian Ybk Int’l L (2006) 165, at 177. 52 Landgericht, Frankfurt am Main, Argentinianleihen-Urteil , 14 Mar. 2003, No. 294/02, cited in Bonafé, supra note 47, at 179. 53 UN Convention on Jurisdictional Immunities of States and Their Property, UN GA Res A/59/38 (2004), 2 Dec. 2004. 54 European Convention on State Immunity, signed in Basle on 16 May 1972, CETS No. 74. 55 See Report of the International Law Commission on the Work of its Fifty-fi rst Session, 1999, UN Doc. A/54/10, at 160. 746 � � EJIL 20 (2009), 729–747 in international law for holding that an inherently ‘ commercial transaction ’ may ex post be absorbed within the category of acta jure imperii by the adoption of subsequent government measures frustrating the rights of the investors on grounds of public requirements. If this were true, the distinction between acta jure gestionis and acta jure imperii would be deprived of any useful effect. Finally, it suffi ces to observe that in the prevailing case law of national courts the characterization of an act of the defendant state as ‘ commercial ’ or ‘ sovereign ’ depends on the objective nature of the act and not on the purpose underlying its adoption. 56 Again, were this not true, the customary norm on restrictive immunity would lose its value. The conclusion one can draw from the still unresolved saga of the Argentine bonds is that access to justice by foreign investors who have been injured by the payment default of a foreign government requires a more constructive dialogue between courts of different jurisdictions in order to determine what is the correct balance to be struck between respect for the foreign state’s jurisdictional immunity and the need to ensure effective judicial remedies to innocent people who may have been ruined by that state’s fi nancial policies. This dialogue has been conspicuously absent in the case of the Argentine bonds. It is submitted that such dialogue is all the more necessary at this advanced stage of development of international investment law 57 for two reasons: fi rst, because it may help clarify the content and scope of the investors ’ right of access to justice under international law to the benefi t of investment arbitrators who often have to grapple with what is the precise meaning of the ‘ minimum standard of justice ’ in the treatment of aliens ’ economic interest; secondly, and more pertinently for the case under discussion, even if the ICSID Tribunal were to uphold the claim of the thou- sands of bondholders, the question of sovereign immunity would inevitably re-emerge at the moment the claimants tried to enforce the award in the national courts of the appropriate jurisdiction. 5 � Conclusion The impressive development of investment arbitration in contemporary international law has helped consolidate access to justice as a principle which partakes both of human rights law and of investment law. This development has furthered the pro- cess of emancipation of individuals and private entities from the fetters of the state by allowing the former to bring claims directly against a state before an international dispute settlement mechanism. The great success of investment arbitration has also raised the question whether the extensive penetration of foreign investment guaran- tees into areas of national regulation hitherto reserved to domestic jurisdiction should require a corresponding opportunity for access to justice and participation in arbitral 56 For a comprehensive survey of such case law see Bonafé, supra note 47, at 169. 57 On ‘ judicial dialogue ’ in international investment law see , for instance, Vadi, ‘ Towards Arbitral Path Coherence and Judicial Borrowing: Persuasive Precedent in Investment Arbitration ’ , 5 Transnational Dispute Management (2008). Access to Justice, Denial of Justice and International Investment Law � � � 747 proceedings by representatives of the civil society of the host state. The conclusion reached in this article is that such concern can be met, at the substantive level, by the application in arbitral proceeding of the law of the disputing state to the extent that it pursues legitimate public policy objectives, and by the full application of the fair and equitable standard to the benefi t of both the investor and the population affected by the investment. At the procedural level, the current trend towards a more expansive construction of civil society’s access to justice is supported by the increasing accept- ance of amicus curiae participation in arbitration proceedings. With respect to the specifi c problem of access to justice of extraterritorial investors – as in the case of the Argentine bonds – this article has emphasized the importance of a dialogue between national courts as a condition for a common understanding of the scope and limits of sovereign immunity as a persistent obstacle to the effective exercise of the right of access to justice. 
work_q2zo4wwr3bdg3gwzqeeajaa7dm	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221729945 Params is empty 221729945 exception Params is empty 2021/04/06-03:20:26 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221729945 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:26 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_q642rpzx5bboxgm7vkyb4slbf4	----	arop2Colquitt 1..25 arop2Colquitt ARI 15 December 2014 16:37 Justice, Fairness, and Employee Reactions Jason A. Colquitt and Kate P. Zipay Department of Management, Terry College of Business, University of Georgia; email: colq@uga.edu Annu. Rev. Organ. Psychol. Organ. Behav. 2015. 2:11.1–11.25 The Annual Review of Organizational Psychology and Organizational Behavior is online at orgpsych.annualreviews.org This article’s doi: 10.1146/annurev-orgpsych-032414-111457 Copyright © 2015 by Annual Reviews. All rights reserved Keywords exchange, affect, heuristic, uncertainty, status, ethics Abstract Of all the issues that employees consider in organizational life, justice and fairness are among the most salient. Justice reflects the perceived adherence to rules that represent appropriateness in decision contexts (e.g., equity, consistency, respect, truthfulness). Fairness reflects a more global perception of appropriateness that lies downstream of justice. Our review integrates justice theories (fairness heuristic the- ory, the relational model, the group engagement model, fairness the- ory, deonance theory, uncertainty management theory) and broader theories (social exchange theory, affective events theory) to examine three questions: (a) Why do employees think about justice issues in the first place? (b) how do employees form fairness perceptions? and (c) how do employees react to those perceptions? We close by de- scribing how justice and fairness can be managed in organizations, especially given new technological trends in how people work. 11.1 mailto:colq@uga.edu orgpsych.annualreviews.org INTRODUCTION Justice and fairness are issues that resonate in many realms of life. Children consider the fairness of rewards and punishments. Students ponder the justice of grades. Citizens debate the fairness of national elections and governmental policies. Employees focus on the justice of key decisions and events in the workplace. It is this latter thread that interests scholars in organizational psychology and organizational behavior. Indeed, it was 30 years ago that Folger & Greenberg (1985, p. 176) drew a bridge between “pure science” and “applied science” by describing the relevance of justice and fairness to performance appraisal, compensation, participative decision making, and conflict resolution. Although the literature has tended to treat justice and fairness as interchangeable construct labels, our review will distinguish them. Following Colquitt & Rodell (2015), we define justice as the perceived adherence to rules that reflect appropriateness in decision contexts. Distributive justice rules reflect appropriateness in decision outcomes and include equity, equality, and need (Adams 1965, Leventhal 1976). Procedural justice rules reflect appropriateness in decision- making procedures and include voice, consistency, accuracy, bias suppression, and correctability (Leventhal 1980, Thibaut & Walker 1975). Interpersonal justice rules reflect appropriateness as procedures are enacted and include respect and propriety (Bies & Moag 1986, Greenberg 1993). Informational justice rules reflect the appropriateness of the explanations offered for procedures and include truthfulness and justification (Bies & Moag 1986, Greenberg 1993). We define fairness as a global perception of appropriateness—a perception that tends to lie theoretically downstream of justice (Colquitt & Rodell 2015). Consider an employee who is struck by the accuracy of a boss’s data gathering during a performance appraisal and thinks highly of her boss as a result. That scenario represents (procedural) justice shaping fairness. Note that past reviews tended to treat the justice–fairness distinction as one of measurement style, with as- sessments of justice rules described as indirect measures and assessments that used the word fair described as direct measures (Colquitt & Shaw 2005, Lind & Tyler 1988). We believe it is time to use distinct terms for justice and fairness because more and more scholars are operationalizing both in their studies, often with fairness mediating the effects of justice (Ambrose & Schminke 2009, Kim & Leung 2007). Our performance appraisal example highlights additional points needed to understand justice and fairness. As shown in Figure 1, justice and fairness are focused on some target—typically a supervisor or an organization (Rupp & Cropanzano 2002). Our example focuses on a super- visor, but scholars could just as easily study the accuracy of an organization’s appraisal system or the fairness of the firm. Regardless of the focus, measuring justice and fairness involves bracketing an employee’s experiences in some way (Cropanzano et al. 2001). The justice in our example was bracketed around a single appraisal event—an approach that is fairly common in the literature. Other times justice will be measured by focusing employees on a collection of multiple events. For example, Colquitt’s (2001) measure is often tailored to focus on decisions about pay, rewards, evaluations, promotions, etc. (Colquitt & Rodell 2015). The fairness in ourexample referenced the supervisor as a complete entity—presumably representing an aggregate of all relevant events. Figure 1 also illustrates that justice and fairness can be referenced to any or all of the distributive, procedural, interpersonal, and informational dimensions. Those dimensions have been made translucent for fairness in the figure because it has become more common to eschew those di- mensional distinctions in favor of a focus on overall fairness (Ambrose & Schminke 2009, Kim & Leung 2007). Scholars draw on a number of models and theories to understand the antecedents and con- sequences of justice and fairness. Indeed, the literature has become one of the more theory-rich 11.2 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 content areas in organizational psychology and organizational behavior. Many of those models and theories were introduced by justice scholars to explain phenomena in the justice literature. Those include fairness heuristic theory (Lind 2001a, Van den Bos 2001a), the relational model and group engagement model (Tyler & Blader 2003, Tyler & Lind 1992), fairness theory and deonance theory (Folger 2001, Folger & Cropanzano 2001), and uncertainty management theory (Lind & Van den Bos 2002, Van den Bos & Lind 2002). Although these lenses have been instrumental for examining a number of research questions, justice scholars also draw on theories in other realms of organizational psychology and organizational behavior. The most notable examples are social exchange theory and affective events theory (Blau 1964, Weiss & Cropanzano 1996). The purpose of our review is to integrate all of these theoretical lenses to examine three questions. First, why do employees think about justice issues in the first place—what causes them to ponder issues of equity, accuracy, respect, truthfulness, and the like? Second, how do employees form fairness perceptions—how do they aggregate specific justice experiences into an overall perception? Third, how do employees react to fairness perceptions—what behaviors result, and why do they result? As our review shows, the justice-specific theories and the two broader theories are all needed to attempt to answer these questions. Our review then explores how these insights can be used to manage justice and fairness in organizations, especially given new technological trends in how people work. Single event Single event Multiple events En tit y ( su pe rvi so r o r o rg an iza tio n) 4 Time Distributive Procedural Justice Interpersonal Informational Distributive Procedural Fairness Interpersonal Informational Figure 1 Measurement decisions when assessing justice and fairness. 11.3www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 WHY DO EMPLOYEES THINK ABOUT JUSTICE ISSUES? Before employees can judge how just or fair their supervisors or organizations are, they have to attend to such issues in the first place. How do the theories described in our review explain that attention to justice issues? As shown in Figure 2, most of the theories involve uncertainty— a condition under which something is not known or something is doubted. Employees feel a sense of uncertainty about something and—as a result—devote more focused attention to justice issues. The theories vary in how explicit a role they devote to uncertainty and what exactly it is that employees are uncertain about. Uncertainty About Trustworthiness In explaining why employees think about justice issues, two of the theories shown in Figure 2 emphasize uncertainty about trustworthiness. We begin with social exchange theory because it is the oldest theory in our set, it was the first to be applied to justice phenomena, and it remains the most oft-evoked lens in the literature. Blau (1964) contrasted two kinds of exchange relationships. Economic exchanges are contractualin character andare governedbya clearly specified schedule of benefits and reciprocations. For example, an employee completes required tasks in exchange for a regular paycheck. Social exchanges, by contrast, are marked by a deeper level of investment in which unspecified benefits and reciprocations are exchanged over a long-term, open-ended time frame. Forexample, an employee “goes theextra mile” to help a newcomer while believing that—at Social exchange Moral emotions Mediators Justice Distributive Procedural Interpersonal Informational Fairness Group mode Emotions Identification Negative emotions Reciprocation Moral emotion–driven behavior Behaviors Cooperation Emotion- driven behavior Engagement Negative emotion– driven behavior Social exchange theory Fairness heuristic theory Relational model/ group engagement model Fairness theory/ deonance theory Affective events theory Uncertainty Management theory Trustworthiness Uncertainty about Trustworthiness Status Morality Goal progress Anything Figure 2 Different theoretical perspectives on the experience of justice and fairness. 11.4 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 some point and in some way—he will get “repaid” by his supervisor for those efforts. Because of their inherent flexibility and depth of investment, social exchanges are viewed as more effective in the long term than economic exchanges. What if an employee doubts that “extra mile” efforts will be repaid in time? Blau (1964, p. 98) addresses such concerns in describing how social exchanges take root: “Since social exchange requires trusting others to reciprocate, the initial problem is to prove oneself trustworthy. . . . As individuals regularly discharge their obligations, they prove themselves trustworthy of further credit.” Thus, if faced with an opportunity to do something “extra,” an employee should stop to consider whether his supervisor is trustworthy. If she is, then his behaviors will likely be rewarded somewhere down the line. Although Blau (1964) did not discuss justice issues in this context, Organ (1990) did so in a subsequent articulation of social exchange principles. He argued that justice could serve a similar exchange-deepening function over time, noting, “If the person feels that the overall exchange, over some relevant interval, is ‘fair,’ he or she will not feel the need to provide any precise accounting of marginal benefit for marginal contribution” (p. 64). Thus, at least implicitly, social exchange theorizing views uncertainty about trustworthiness as a reason for focusing on justice issues. The linkage between uncertainty about trustworthiness and a focus on justice is much more explicit in fairness heuristic theory—the first justice-centric theory covered in our review (see Lind 2001a, Van den Bos 2001a). This theory is inspired by what Lind (2001a) termed the fundamental social dilemma—that employees must repeatedly decide whether to embrace cooperation or avoid cooperation. Embracing cooperation opens up avenues for greater gains but brings with it the risk of exploitation and rejection. Avoiding cooperation encourages self-sufficiency but forgoes the chance at the outcomes that can be achieved only with collective action. Trustworthiness becomes relevant to that fundamental social dilemma because the risks of exploitation seem lower if authorities are trustworthy. That dynamic is not unlike one exchange partner deciding that another is worthy of some benefit—even though repayment cannot be guaranteed (Blau 1964). Importantly, fairness heuristic theory argues that trustworthiness is difficult to ascertain, as it is dependent upon qualities and characteristics that are difficult to observe and evaluate. Here is where the connection to justice becomes more explicit than in social exchange theory. Van den Bos (2001a, p. 73) writes, “Do people often have direct information about an authority’s trust- worthiness? We suggested that they frequently do not. . . . We suggested that in such situations—in which information about the authority’s trustworthiness is missing—people refer to the fairness of the authority’s procedures to decide how to react to the outcome.” The argument is that adherence to rules like equity, consistency, respect, and justification is more observable than qualities like competence, integrity, and benevolence. Many of the theory’s propositions have been supported in laboratory research. For example, Van den Bos et al. (1998) showed that the effects of justice on reactions were stronger when information on authority trustworthiness was lacking than when it was present. Uncertainty About Status Lind’s (2001a) discussion of the fundamental social dilemma also describes how being rejected by an authority can harm one’s identity. That observation echoes earlier theorizing on the relational model (Tyler & Lind 1992). That model argues that employees are social creatures who are especially attentive to signals that convey their status in relevant groups. Status is a key con- sideration because group memberships validate people’s identities and comprise a large part of their esteem. The relational model argues that justice is one of the most potent signals of status (Tyler & Lind 1992). When a supervisor treats an employee with respect, that act signals that the 11.5www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 employee isvalued bytheworkgroup—that the employee hasa certain standing. Bycontrast, when a supervisortreats anemployee in a biased manner, it signals that the employee isat thefringe of the group and is someone of questionable status. Although applications of the relational model have tended to focus more on the effects of justice than on the conditions that increase the focus on it, some tests do support the arguments described above. For example, a laboratory study by Smith et al. (1998) showed that the relationship be- tween favorable treatment by an authority and participant self-esteem was stronger when the experimenter was from the same university as the participants. Presumably the existence of the shared affiliation aroused concerns about status, making treatment more salient. The relational model’s focus on status and group memberships has since been folded into Tyler & Blader’s (2003) group engagement model. That model focuses more explicitly on the outcomes of justice, so it is described in a subsequent section. Uncertainty About Morality An outsider to the literature would likely assume that morality concepts were tightly woven into discussions of justice. After all, justice plays a salient role in philosophical treatments of ethics (Kant 1795, Rawls 1971), and Leventhal (1980) argued that ethicality is an important procedural justice rule. Surprisingly, morality concepts stayed at the fringes of the justice literature for its first few decades, largely due to its roots in social psychology rather than philosophy. That separation began to change with the introduction of fairness theory (Folger & Cropanzano 2001). Fairness theory focuses on when authorities are held accountable for their conduct, with that accountability dependent on three counterfactuals. Specifically, authorities are held accountable when some event could have played out differently, when authorities should have acted differently, and when well-being would have been better if those alternatives had transpired. Consider a case in which an employee receives a smaller than expected raise from her boss. That employee will blame the boss when the raise could have been higher (e.g., the merit pool was big enough to allocate more funds), when the raise should have been higher (e.g., a bigger raise would have been more equitable and deserved), and when well-being would have been better given alternative events (e.g., a larger raise would have significantly affected well-being). Issues of morality are wrapped up in the “should” portion of fairness theory. In deciding whether authorities should have acted differently, employees compare authority actions to prevailing ethical and moral standards (Folger & Cropanzano 2001). Deciding that an authority should have acted differently means the authority violated some norm of conduct—a decision that should trigger a sense of unfairness and blame. In practice, most studies employing fairness theory have either manipulated the should counterfactual or left it as an unmeasured aspect of their theorizing (Colquitt & Chertkoff 2002, Gilliland et al. 2001). An exception was a study by Nicklin et al. (2011). Using a policy-capturing design, the authors gave participants a chance to react to an event by describing their thoughts in an open-ended fashion. The results revealed that authorities who failed to act appropriately in an adverse situation triggered more counterfactual thoughts, with those counterfactual thoughts being associated with lower fairness perceptions. Whereas concerns about morality are wrapped up in one of fairness theory’s three mechanisms, they stand front and center in a subsequent offshoot of it. Deonance theory argues that employees think about justice issues because virtue is its own reward (Folger 2001 et al. 2005). That is, individuals care about adherence to norms of morality in and of itself, whether in the evaluation of their own behavior, the behavior of their authority figures, or even the behavior of some un- connected third party. Because justice represents the way people ought to behave—indeed, the deon in the theory’s moniker comes from the Greek word for obligation—it is of central interest in 11.6 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 daily life. Some support for deonance theory’s propositions comes from experimental research showing that individuals who are high on trait morality responded more positively to justice (Colquitt et al. 2006). Other support comes from work showing that individuals care about the justice that authorities intend to offer—not merely thejustice that is actually perceived to be offered (Umphress et al. 2013). Uncertainty About Goal Progress In theirdiscussionof deonance theory, Folger et al. (2005) note that stimuli can often be quickly and unconsciously classified as unjust or immoral. That rapid and not-quite-conscious process is similar to writings on affect, which brings us to the second theory in our review that is not confined to the justice literature. Like social exchange theory, affective events theoryoriginatedina differentdomain oforganizationalpsychologyandorganizationalbehavior(Weiss&Cropanzano1996)beforebeing applied to justice phenomena byjustice scholars. The theory argues that events are a key determinant of affect at work, and that affect explains how and why events shape attitudes and behavior. Likeothertreatmentsofthetopic(e.g.,Lazarus 1991), affective events theory argues that events are initially appraised in terms of whether they are helpful or harmful toward progress on relevant goals (Weiss & Cropanzano 1996). If events benefit goal progress, positive emotions will result. If events hinder goal progress, negative emotions will result. That coarse good versus bad evaluation is then followed by a secondary appraisal that considers additional details about the event. Is someone responsible for it? How easily can it be coped with? Will the situation worsen or improve? It is this secondary appraisal that results in more specific emotions such as anger, fear, sadness, joy, love, and the like. For example, an event might trigger sadness if it seems harmful to goal progress and if it seems difficult to cope with and likely to worsen. Thus, affective events theory would argue that employees think about justice issues because just and unjust events are relevant to goal progress. Of course, the theory’s insights into this question differ from the ideas encapsulatedin the other theories, in twoprimary ways. First, considerations of goalprogressandrelevant eventdetails often happenin an automatic, unconscious,andinvoluntary fashion. Considerations of issues like trustworthiness and status may be governed by more complex cognitive activity. Second, affective events theory—and appraisal models in general—tend to be agnostic about what precisely the goals are. Affect need not be triggered by trustworthiness goals, status goals, morality goals, or any goals that are elevated in significance a priori. That generality is shared by the next theory described in our review. Uncertainty About Anything We began this section by discussing uncertainty about trustworthiness, with fairness heuristic theory arguing that employees focus on justice as indirect evidence of trustworthiness (Lind 2001a, Van den Bos 2001a). An offshoot of that theory broadens the treatment of uncertainty. Uncertainty management theory argues that employees think about justice because it helps them manage any kind of uncertainty—even uncertainty that has no logical connection to justice rules (Lind & Van den Bos 2002, Van den Bos & Lind 2002). Consider an employee who was experiencing a significant health issue. The theory argues that justice on the part of a supervisor would help the employee maintain positive affect and feel favorably about at least some life domain—which wouldaidincoping with thehealth uncertainty. Lind& Van den Bos (2002, p. 216) summarized that proposition when writing, “What appears to be happening is that people use fairness to manage their reactions to uncertainty, finding comfort in related or even unrelated fair experiences and finding additional distress in unfair experiences.” 11.7www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 Two articles offer compelling support for uncertainty management theory’s predictions. Experiments by Van den Bos (2001b) manipulated uncertainty by asking some participants to write about the thoughts, emotions, and physical symptoms that they experience when they are uncertain. The results showed that justice had a stronger effect on reactions for the participants who were primed on uncertainty. Van den Bos & Miedema (2000) complemented Van den Bos’s (2001b) manipulation with one that stretched the conceptual distance between justice and un- certainty. Those experiments manipulated uncertainty by asking some participants to write about the emotions triggered by pondering their own death. Again, the results showed that justice had a stronger effect on reactions for the participants who were primed on uncertainty. HOW DO EMPLOYEES FORM FAIRNESS PERCEPTIONS? Once employees decide to hold a magnifying glass up to justice issues—for whatever uncertainty- based reasons—a new question comes to the fore. How do employees take all of their justice data— the events, the experiences, and so forth—and form an overall fairness perception? Although this question is not tackled by all of the theories in Figure 2, it is relevant to many of them. As the sections to follow show, many of the theories suggest that fairness perceptions are formed de- liberately and consciously, whereas others propose that perceptions are formed quickly, effi- ciently, and unconsciously. Using Deliberate Cognitive Processing In his seminal writings on justice, Leventhal argued that fairness perceptions are formed through a cognitively rich process in which employees decide what justice rules to consider and how much to weigh them (e.g., Leventhal 1980, Leventhal et al. 1980). The weight of each rule was described as varying across people and events (Leventhal 1976). Employees could assign weights based on self-interested motives, outcome favorability, available information, event importance, and rule legitimacy in order to arrive at an overall fairness perception (Leventhal 1976, 1980; Leventhal et al. 1980). Often, more weight would be given to rules that maximize employee interests. For example, employees who valued performance-based allocations would give greater weight to equity rules, whereas employees who valued cooperation would give greater weight to equality rules. Fairness theory also suggests that employees make conscious assessments of fairness. How- ever, rather than weighting particular justice rules, individuals engage in counterfactual thinking (Folger & Cropanzano 2001). As with judgments of accountability, fairness perceptions should depend on how much the counterfactuals—the would, could, and should questions—diverge from the experienced situation. The more divergence, the less likely employees will be to perceive events as fair. Of course, the discrepancy between the counterfactual scenarios and the actual events depends on what outcome- and process-based referents employees use as their standards. Depending on the standards, employees could perceive the same situation as fair or unfair. Fairness theory also suggests that employee fairness perceptions depend on the feasibility of the counterfactuals. Nicklin et al. (2011) found that counterfactual thinking is influenced not just by the severity of outcomes and the type of wrongdoing, but also by the knowledge and expertise of the target. For example, positive alternatives are more easily conjured when the target person has committed a wrongdoing rather than simply withholding action or when the target knowingly puts the employee at risk (Folger & Cropanzano 2001). Thus, as in Leventhal’s seminal work, employees who believe, “that’s not fair!” are basing that belief on a thorough and reasoned analysis of decision events. 11.8 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 Using Heuristic Cognitive Processing Other theories challenge the belief that fairness perceptions are based on deliberate processing. After all, fairness perceptions can often be formed and recalled quickly, without any reflection on particular rules or specific counterfactuals. For their part, Folger & Cropanzano (2001) ac- knowledged that the formation of fairness perceptions could lay on a continuum from very deliberate thinking to very heuristic thinking. They further argued that employees would employ deliberate processing when the necessary information and time permitted, and automatic pro- cessing when information was unavailable or time constraints restricted deliberate processing. The more heuristic end of the fairness perceptions continuum is encapsulated by fairness heuristic theory—a theory that focuses on mental shortcuts over specific counterfactuals (Lind 2001b). According to the theory, employees create a heuristic conception of fairness based on accessible and understandable information during early justice experiences (Lind 2001a, Van den Bos 2001a). The process of forming fairness perceptions begins with a judgmental phase followed by a use phase. The judgmental phase is brief in order for employees to use fairness perceptions to guide behaviors with supervisors and colleagues. The brevity of the judgmental phase means that employees cannot take the requisite time to deliberately consider all available information. Therefore the information employees do consider is especially salient in shaping fairness per- ceptions. The use phase begins once the heuristic has been formed and serves as a proxy for trustworthiness. The use phase continues until an unexpected or important event triggers a shift back to the judgmental phase and a revision of fairness perceptions. Fairness heuristic theory further argues that not all justice-relevant information is treated equally. Specifically, fairness perceptions are more sensitive to earlier rather than later information and more interpretable rather than complex information (Lind 2001a). In a lab experiment conducted by Van den Bos et al. (1997b), the researchers manipulated the order of the information provided (procedural information first and then outcome, and vice versa) and found that what participants judged as fair was more strongly influenced by whatever information came first. In a similar study conducted by Van den Bos et al. (1997a), the researchers found that participants prioritized interpretability in assessing fairness. In addition, they found that procedure-based information is often more interpretable and thus more salient in shaping fairness perceptions. As Folger and Cropanzano’s writings transitioned from fairness theory to deonance theory, they too began to describe fairness perceptions as more quick and instinctive. Folger et al. (2005) argued that employees form fairness perceptions based on unconscious comparisons between a justice event and anemployee’s internal moral code todetermine whether thecode hasbeenviolated.Theyargued that code violations are immediately salient and do not require effortful analysis. Moreover, employees are motivated to consider fairness even when their own self-interests are not at stake, so long as an incident evokes some moral consideration. Employees automatically detect violations of justice in order to react to situations that require immediate action. Several researchers have explored deonance theory’s take on justice and fairness perceptions. For example Aquino et al. (2006) found that employees were concerned with pursuing justice and ensuring offenders received the punishment they deserved just for the sake of justice. Although not at all costs, employees were willing to pay a price to see that justice had been served. Similarly, Skarlicki & Rupp (2010) tested third-party employees’ responses to another employee’s mis- treatment and found that employees high in moral identity experienced high retributive responses even when they were in no way affected by the event. These studies support the notion that employees have a quick and automatic response to injustice. Thus, consistent with fairness heuristic theory, when employees think, “that’s not fair!” they are relying on quick and unconscious judgments. 11.9www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 Using Affect as Information Whereas the previous two sections debated how intently employees think about fairness, this section questions whether they need to think at all. Fairness perceptions are based not only on cold cognitive functions, but also on hot emotion-laden responses to events. Put simply, employees don’t just think a situation is unfair, they feel it is unfair. As shown in Figure 1, affect can color responses to specific events, to series of multiple events, and to entities as a whole (Barsky et al. 2011). Further, emotions precede, coincide with, and follow justice-related events. Emotional reactions impact how employees perceive a situation and interpret information, and thus are central to the formation of fairness perceptions. Affective events theory discusses the influence of affect on judgments through emotional appraisals. Weiss & Cropanzano (1996) suggest that events automatically trigger an appraisal of the situation, which includes an emotional reaction that independently influences associated judgments. They propose not only that affective reactions influence how people cognitively assess a situation, but also that affect directly influences attitudes about an event (Weiss & Cropanzano 1996). Specifically, attitudes can be unstable and thus significantly influenced by contextual factors, such as affective states. If an attitude or judgment is abstract, employees are even more likely to base their judgment on affective states. So, fairness, as an abstract concept, is likely to be influenced by employees’ affective states. Further, Weiss & Cropanzano (1996) discuss the various avenues by which affect influences judgments. In addition to the emotional reaction to an event, employee mood before a triggering event may also influence judgments. Employee mood colors the information related to the sit- uation as well as which aspects of the situation are considered in constructing judgments. Simply put, bad moods can make situations feel worse; good moods can make situations feel better. Moods also influence which information employees consider in appraising an event, with good moods making positive information more salient. Affect can even fill in the gaps when employees are missing justice-relevant data. Van den Bos (2003) conducted two lab experiments to explore how affect and justice information interact to form fairness perceptions. In the first experiment, participants were randomly assigned to either negative or positive affective states and to cases where they either did or did not know a com- parison other’s outcome. The findings demonstrated that the more unclear participants were about the other’s outcome, the more affect influenced fairness perceptions. The second experiment explored how ambiguity about procedures (i.e., opportunities for voice) and affect shape fairness perceptions. The results showed that affect influenced fairness perceptions more when procedures were notexplicit. These findings reinforce thesignificant impact emotions haveon theformation of fairness perceptions. Thus, when employees respond with “that’s not fair,” they may be reporting something that is more feeling than thought. HOW DO EMPLOYEES REACT TO FAIRNESS PERCEPTIONS? Once employees decide to attend to justice issues, and once they use justice data (and their affect) to form a fairness perception, a third question comes to the fore. How do employees react to those perceptions? That is, how do those perceptions shape attitudes, beliefs, intentions, and behaviors in the workplace? Almost all of the theories shown in Figure 2 tackle this question explicitly. Most of those theories highlight central mediators that explain how and why fairness drives important employee reactions. Most of the theories also highlight categories or umbrellas of outcomes that are especially sensitive to those mediators. In that regard, the boxes under “Behaviors” in Figure 2 tend to be collections of constructs rather than constructs themselves, as is apparent in the sections 11.10 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 below. Some of those collections are driven by cognitions—often about relevant authorities and groups—whereas others are driven by affect. Cognition-Driven Behaviors Social exchange theory has become perhaps the dominant framework for understanding how justice and fairness impact attitudes and behaviors in the workplace (Colquitt et al. 2013). Blau (1964) described relationships in quid pro quo terms, with one party offering some benefit in exchange for some reciprocation from the other party. In social exchanges, those benefits tend to be more unspecified and intangible, with relevant examples including assistance, advice, ap- preciation, compliance, social acceptance, and instrumental services. Organ (1990) brought these concepts into the organizational behavior realm by arguing that justice and fairness on the part of a supervisor or organization could constitute one of those intangible benefits. “Extra mile” efforts on the part of an employee could, in turn, constitute a reciprocation for such benefits. Organ’s (1990) theorizing became the foundation of one of the most venerable arguments in the literature: Justice and fairness are benefits that cause a deepening of exchange relationships, taking them from more economic exchanges to more social exchanges. Once that deepening occurs, employees are more likely to engage in beneficial behaviors as a means of reciprocation. Of course, a key issue involved in testing such an argument is figuring out how to operationalize Blau’s (1964) social exchange relationship dynamic. As reviewed by Cropanzano & Byrne (2000), justice scholars, to capture that dynamic, have turned to a number of existing constructs, including trust (Mayer et al. 1995, McAllister 1995), commitment (Meyer et al. 1993, Mowday et al. 1982), psychological contract fulfillment (Robinson & Rousseau 1994), and perceived support (Eisenberger et al. 1986). The use of trust as an indicator of social exchange relationships is consistent with Blau’s (1964) acknowledgment that trustworthiness must be demonstrated in order for relationships to deepen into social exchanges. It is also consistent with the argument that employees think about justice issues because they are uncertain about trustworthiness. The use of commitment as an indicator of social exchange relationships is also consistent with Blau’s (1964, p. 98) theorizing, as he described exchange relationships as “commitments to the other party.” For its part, the contract component of psychological contract fulfillment captures the quid pro quo nature of exchanges, with the fulfillment aspect conveying the same sort of favorable relationship data as trustworthiness or commitment. It is less clear whether perceived support fits well as an indicator of social exchange relationships. Perceived support reflects the sense that an authority values employees and cares about their well-being (Eisenberger et al. 1986). As such, it is conceptually similar to some of the benefits that Blau (1964) described, such as assistance, advice, and appreciation. Taken together, the constructs reviewed by Cropanzano & Byrne (2000) have been used by a number of scholars to capture the presumed exchange-deepening effects of justice and fairness (Colquitt et al. 2012, Konovsky & Pugh 1994, Lavelle et al. 2009, Masterson et al. 2000, Moorman et al. 1998, Tekleab et al. 2005). A recent study examined the construct validity of the various social exchange operationali- zations. Colquitt et al. (2014) gave participants the definitions of Blau’s (1964) benefit and social exchange relationship concepts. They then asked participants to read measures of trust, com- mitment, psychological contract fulfillment, and perceived support and indicate the degree to which the items matched the benefit definition and the social exchange relationship definition. Their results showed that McAllister’s (1995) affect-based trust was the most content-valid operationalization of the social exchange dynamic. Other forms of trust and commitment were valid in some tests but not in others. For their part, both psychological contract fulfillment 11.11www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 and perceived support were more valid operationalizations of benefits than the social exchange dynamic itself. Other than affect-based trust, the only valid indicators of the social exchange relationship dynamic were a measure of leader–member exchange that was tailored to social exchangeconcepts (Bernerth et al. 2007) anda four-item measure created bytheauthors that asked whether work relationships were characterized by mutual obligation, trust, commitment, and significance (Colquitt et al. 2014). A recent meta-analytic review summarized the relationships between justice and a number of social exchange and reciprocation constructs (Colquitt et al. 2013). In terms of the former, justice was strongly and positively correlated with trust, commitment, perceived support, and leader– member exchange. In terms of the latter, justice was moderately and positively correlated with citizenship behavior and task performance, having moderate negative correlations with coun- terproductive behavior. Importantly, Colquitt et al. (2013) used meta-analytic structural equation modeling to create a higher-order social exchange variable with trust, commitment, perceived support, and leader–member exchange as indicators. Their results showed that the social exchange variable mediated the relationships between justice and both task performance and citizenship behavior, but not counterproductive behavior. On one hand, doing one’s job and “being a good soldier” seemed to represent ways of “giving back” for justice. On the other hand, “not being a bad apple” did not seem to possess that reciprocative quality. Much of the rationale that social exchange theory offers for the effects of justice and fairness on work behaviors is shared by fairness heuristic theory. In his discussion of the fundamental social dilemma, Lind (2001a) notes that fairness perceptions shift employees from an individual mode— in which concerns about self-interest are overriding—to a group mode—in which collective well- being is paramount. He writes, “In group mode there is far less concern with, and far less attention paid to, the individual material payoffs associated with any given behavior. . . . Instead of mon- itoring and responding to individual material outcomes, people in group mode are primarily concerned with what is good for the group and what they can do to reach group goals” (p. 67). That pivot from caring about individual payoffs to attending more to the collective is reminiscent of the evolution from an economic exchange relationship to a social exchange relationship. Self- interested bookkeeping gives way to a longer and more expansive consideration of ways to contribute to the group. Lind (2001a) goes on to describe a number of reactions associated with the group mode triggered by fairness perceptions. Among those is cooperation—behaving in a prosocial or progroup manner by working toward the achievement of collective goals. Indeed, such co- operation becomes the resolution of the fundamental social dilemma, with employees choosing to risk exploitation by accepting vulnerability to authorities. Conceptually speaking, cooperation is functionally equivalent to reciprocation in social exchangeformulations, with citizenship behavior becoming an exemplar of that umbrella heading. Indeed, Lind (2001a) refers to studies linking justice with citizenship behavior when describing the conceptual roots of fairness heuristic theory. Empirically speaking, tests of fairness heuristic theory’s propositions have tended to focus on the questions covered earlier in our review—why employees think about justice issues and how they form fairness perceptions. One exception was a field study by Jones & Martens (2009) that examined the perceived fairness of senior management in an international transportation or- ganization. Consistent with the notion that fairness can pivot employees into a group mode, perceived fairness was strongly related to trust in senior management. Consistent with the notion that fairness is used to fill in the gaps when uncertainty about trustworthiness is present, that relationship was especially strong when participants indicated some ambiguity in their trust levels. Although Jones & Martens (2009) did not measure a cooperative behavior per se, they did assess turnover intentions. Within the context of the fundamental social dilemma, turnover intentions 11.12 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 would reflect opting out rather than risking exploitation through cooperation. Their results showed that perceived fairness and trust in senior management were both negatively related to turnover intentions. Thus, fairness led to attitudes andbehavioral intentions that were indicative of a progroup, cooperative mindset. A complementary rationale for the effects of justice and fairness on work behaviors is offered by the group engagement model (Tyler & Blader 2003)—the successor to the relational model (Tyler & Lind 1992). Whereas the relational model explained that employees think about justice because it provides data on how much the group values them, the group engagement model focuses on the attitudes and behaviors that result from justice. Once employees determine that they have been treated in a just or fair manner, the group engagement model argues that employees will feel both respected and proud (Tyler & Blader 2003). The sense of respect derives from the realization that the employee evidently does have status in the group. The sense of pride comes from the observation that the employee belongs to a group that possesses status itself—one that “does the right thing.” The group engagement model further argues that respect and pride have two important con- sequences. First, they trigger identification with the group, as employees base their own esteem and sense of self on the success and well-being of the group. That psychological state is very reminiscent of fairness heuristic theory’s group mode—perhaps not surprising given that Lind’s (2001a) theorizing was also rooted in the relational model (Tyler & Lind 1992). That sense of identification then triggers what Tyler & Blader (2003) termed behavioral engagement. Once again reminiscent of fairness heuristic theory, behavioral engagement is described as cooperative behavior that assumes two forms: mandatory cooperation stipulated bythe group anddiscretionary cooperation of the employee’s own volition. Thus, the group engagement model offers a complementary explanation for why justice and fairness can impact task performance and citizenship behavior— this time with the relevant mediator being identification (Tyler & Blader 2003). The group engagement model’s propositions have been supported in a number of contexts. Tyler et al. (1996) tested the model in reference to a number of different groups, including participants’ immediate family, their work department, their college faculty, and their country’s court system. The results showed that the justice of the authorities predicted a sense of being respected and a feeling of pride in the group. Moreover, those perceptions predicted both mandatory cooperation (e.g., complying with group rules) and discretionary cooperation (e.g., citizenship behavior). A subsequent study by Blader & Tyler (2009) added identification to the mix. A study of an international financial services company and a national research panel showed that the relationship between justice and discretionary cooperation was mediated by a higher- order construct reflecting respect, pride, and identification. Employees identified with their organizations when they were treated in a just manner, and they were more behaviorally engaged as a result. Affect-Driven Behaviors The above sections argued that justice and fairness impact work behavior because they cause employees to think that they have a social exchange relationship, that they are in a sort of group mode, or that they identify with their collective. Of course, justice and fairness may impact work behaviors for reasons that go beyond thoughts—reasons having to do with affect. Bies (1987, p. 289) argued that studies of justice were sometimes guilty of a “psychologizing bias,” with scholars focusing more on cognition than emotion. He argued that justice and fairness matter most because their absence can trigger moral outrage—a sense of anger or resentment directed at an authority (see also Bies & Tripp 2002). 11.13www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 Bies’s (1987) discussion of moral outrage resonates with subsequent writings on fairness theory and deonance theory (Folger 2001, 2012; Folger & Cropanzano 2001). Fairness theory has its roots in experimental studies showing that individuals reacted with anger and resentment when authorities did not treat them as they should be treated (e.g., Folger & Martin 1986, Folger et al. 1983). The transition to deonance theory has maintained that emotional focus, with individuals reacting to injustice or unfairness with anger because moral duties have not been upheld (Folger et al. 2005). Indeed, deonance theory has even been applied to understand reactions to an authority’s own behavior and to understand how third parties react to someone else’s treatment. Those sorts of applications have made relevant other moral emotions, such as guilt, shame, in- dignation, and sympathy (Folger, 2001, 2012; Folger et al. 2005; Folger & Cropanzano 2001). As is explored more fully in the next section, behaviors can often be affectively spontaneous rather than cognitively premeditated (Weiss & Cropanzano 1996). Neither fairness theory nor deonance theory is explicit about the behaviors that might be spontaneously triggered by moral emotions. However, research in related corners of the justice and behavioral ethics literatures have identified a number of relevant examples. For example, Goldman (2003) surveyed employees at an unemployment office who had recently been laid off. His study revealed that injustice predicted anger, with anger going on to predict legal claiming—filing a charge with a relevant body or suing a former employer. Work by Aquino and colleagues has centered on a number of other moral emotion–driven behaviors (Aquino et al. 2006, Tripp et al. 2007). Those include revenge— a variant of counterproductive behavior that is motivated by getting even—and reconciliation— actions intended to make amends. As a more general formulation that is not focused on the justice literature, affective events theory is relevant to several types of emotions—not merely moral ones (Weiss & Cropanzano 1996). Those emotions can be incorporated into the formation of fairness perceptions, as noted above, but can also result from fairness perceptions (Barsky et al. 2011). Weiss & Cropanzano (1996) reviewed a number of emotion families that could function in such roles, including anger, fear, sadness, joy, and surprise. For example, it may be that violations of justice rules trigger a number of feelings in the anger family, including disgust, envy, irritation, and exasperation. Alternatively, violations of justice rules may trigger feelings in the sadness family, such as dis- appointment and sympathy. For its part, adhering to justice rules could trigger a number of feelings in the joy family, such as cheerfulness, contentment, optimism, and zest. Empirical studies have supported several such linkages. For example, a laboratory study by Weiss et al. (1999) varied whether participants received a positive outcome or a negative outcome using either a just procedure, a favorably biased one, or an unfavorably biased one. Their results showed that a positive outcome was associated with more joy than a negative outcome was. Moreover, anger was highest when a negative outcome was the product of an unfavorably biased procedure. Krehbiel & Cropanzano (2000) replicated many of those findings in another labo- ratory study while also showing that unfavorable outcomes resulted in sadness. Rupp & Spencer (2006) explored similar issues in a laboratory study that mimicked a call center. Undergraduates played the role of customer service agents who took calls from confederates who either adhered to or violated interpersonal justice rules. The results showed that justice was positively associated with joy and negatively associated with anger. Field studies linking justice to emotions present unique challenges given that emotions are short lived and may not be recalled correctly at later points in time (Weiss & Cropanzano 1996). Some studies have therefore utilized an experience-sampling methodology in which employees complete surveys every day for a period of one or more weeks. For example, Judge et al. (2006) surveyed hospital and high school employees regarding their daily perceptions of justice and their daily reports of anger. Perceptions of injustice were associated with more anger, even when dispositional 11.14 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 or trait anger was controlled for. Similar findings were shown in an experience-sampling study by Yang & Diefendorff (2009). Studies that do not use experience sampling wind up assessing something that lies between emotions and job attitudes. For example, Fox et al. (2001) linked justice to negative affective well-being—an index that asked participants how often they had experienced negative emotions over the previous month. Other studies have combined justice with sentiments, which originate when positive or negative emotions become attached to some object, such as a supervisor, coworker, or organization (Scott et al. 2007). Affective events theory argues that emotions can impact behavior in two ways (Weiss & Cropanzano 1996). First, emotions may color relevant work attitudes, which go on to affect cognition-driven behaviors. For example, anger could reduce trust in a manager, lowering citi- zenship behavior that aids that manager as a result. The second way concerns affect-driven behaviors—actions that are a direct function of the feeling states experienced by an employee. For example, anger could trigger a spontaneous lashing out at a supervisor, even in the absence of any change in relevant job attitudes. Each of the studies reviewed above wound up linking emotions to relevant work behaviors, with all of them connecting negative emotions to counterproductive behaviors (Fox et al. 2001, Judge et al. 2006, Yang & Diefendorff 2009). Examinations of positive emotions are more rare, but studies have linked positive feeling states to citizenship behavior (George 1991, Lee & Allen 2002), presumably because of spontaneous prosocial urges. Colquitt et al.’s (2013) meta-analytic review also included emotions, which were grouped into broad positive and negative affect categories. Justice was moderately related to both positive affect and negative affect in the expected directions. Moreover, their meta-analytic structural equation modeling showed that the affective variables mediated the relationships between justice and task performance, citizenship behavior, and counterproductive behavior. Unlike the social exchange constructs, affect seemed able to explain both “being a good soldier” and “being a bad apple.” Notably, however, the number of studies examining affect-based mediators paled in comparison to the number of studies examining social exchange–based mediators. Given that, Colquitt et al. (2013) called for more research that integrates the two kinds of mediators. The last theory covered in Figure 2 focuses on one specific emotion valence. The focus of uncertainty management theory is the argument that justice and fairness matter more when employees are uncertain about something (Lind & Van den Bos 2002, Van den Bos & Lind 2002). Because it focuses on a moderator that should impact virtually any justice or fairness effect, the theory devotes less attention to specific mediating or outcome variables. However, one particular brand of mediator seems evident in this passage from Lind & Van den Bos (2002, pp. 195–96): “Fair treatment helps people manage their uncertainty, we have suggested, both because it gives them confidence that they will ultimately receive good outcomes and because it makes the possibility of loss less anxiety-provoking or even, as in fair gambles, enjoyable. Conversely, unfair treatment under conditions of uncertainty gives the uncertainty a particularly sinister complexion, and makes people even more uneasy.” The authors seem to hone in on negative emotions as a mediator—emotions such as fear or anxiety. To this point, tests and applications of uncertainty management theory have focused more on the core interactions proposed by the theory than on factors mediating the effects of justice or fairness on work behaviors. Tests of those core interactions have indeed used negative emotions as outcome variables (Van den Bos 2001b, Van den Bos & Miedema 2000). By contrast, studies that have focused on mediating effects have tended to use self-report measures of uncertainty as the mediator, rather than particular negative emotions. For example, Desai et al. (2011) examined perceptions of uncertainty as a mediator of the justice–performance relationship. Colquitt et al. (2012) examined the same linkage, showing that uncertainty mediated the justice–performance relationship even when the mediating effects of commitment were also considered. What remains 11.15www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 to be seen is whether uncertainty perceptions are an effective mediator because of the negative emotions that orbit them, or because of some more cognitive mechanism. What About Issues of Focus and Target? In sum, Figure 2 illustrates that employees may react to justice and fairness with a number of cognitions and emotions and that those cognitions and emotions can shape several kinds of work behavior. Before leaving this section, we should address a question that has occupied a great deal of theoretical and empirical attention in the justice literature: Will the relationships in Figure 2 be stronger if the focus of the justice or fairness matches the target of the cognition, emotion, or behavior? For example, will organization-focused justice be a better predictor of trust targeted at the organization than trust targeted at the supervisor? Will supervisor-focused justice be a better predictor of anger targeted at the supervisor than anger targeted at the organization? Will organization-focused justice be a better predictor of citizenship behavior targeted at the orga- nization than citizenship behavior targeted at the supervisor? On one hand, the notion that effects will be stronger when focus and target match is consistent with some of the theories in Figure 2. Social exchange theory would suggest that the benefits received by one exchange partner should be reciprocated back to that same exchange partner (Blau 1964). Affective events theory would suggest that a stimulus should trigger an emotion directed at that stimulus, with relevant action tendencies also impacting that stimulus (Weiss & Cropanzano 1996). On the other hand, empirical studies that have included multiple foci for justice and multiple targets for mediators and outcomes do not consistently yield stronger relationships in cases in which focus and target match (Horvath & Andrews 2007, Karriker & Williams 2009, Liao & Rupp 2005, Rupp & Cropanzano 2002). Of course, any given empirical study is limited with respect to sample size, making comparisons across relationships difficult. Fortunately, two different meta-analyses have tackled this issue. Colquitt et al. (2013) did so by comparing matching correlations with mismatching correlations within the four justice dimen- sions. For example, they compared the correlation between supervisor-focused interpersonal justice and trust targeted at the supervisor (.55) with the correlation between organization-focused interpersonal justice and trust targeted at the supervisor (.47). As another example, they compared the correlation between organization-focused procedural justice and citizenship behavior targeted at the organization (.23) with the correlation between supervisor-focused procedural justice and citizenship behavior targeted at the organization (.34). Their review included 36 such compar- isons; only 3 revealed a case in which a matching focus-target correlation was statistically sig- nificantly stronger than a mismatching focus-target correlation. The authors noted that the predicted effects for matching versus mismatching did not emerge because supervisor-focused justice seemed more predictive in general, regardless of whether it was predicting supervisor- or organization-targeted criteria. Colquitt et al. (2013) speculated that supervisor-focused justice may be more salient to employees, and more observable and interpretable, than organization- focused justice. A similar pattern emerged in a meta-analysis by Rupp et al. (2014). Rather than making comparisonswithinjusticedimensions,the authorscreatedaggregatesupervisor-andorganization- focusedjustice variables.Those aggregateswounduphavingsomething of an “apples andoranges” problem, however, given that the supervisor-focused justice aggregate was disproportionally composed of interpersonal justice and the organization-focused justice aggregate was dis- proportionally composed of procedural and distributive justice (see their figure 1). Nonetheless, their table 2 included nine comparisons of matching and mismatching focus–target correlations with organization-targeted outcomes. None of those comparisons yielded a matching correlation 11.16 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 that was statistically significantly stronger than its mismatching counterpart. Their table 3 included nine comparisons of matching and mismatching focus–target correlations, this time with supervisor- targeted outcomes. Six of those comparisons yielded a matching correlation that was statistically significantly stronger than its mismatching counterpart. Thus, the benefits of matching focus to target emerged only with supervisor-targeted outcomes, likely because supervisor-focused justice is more predictive in general. WeshouldnotethatRupp et al. (2014) presented regression analyses in their tables 5 and 6 that seem indicative of matching effects being stronger than mismatching ones. However, those re- gression analyses were based on a meta-analytic correlation between supervisor-focused justice and organization-focused justice that could have been reduced by the “apples and oranges” issue noted above. Moreover, many of those regressions examined supervisor-focused justice and organization-focused justice alongside distributive, procedural, and interpersonal justice. Those regressions therefore seemed to be using part–whole correlations given that the aggregate var- iables were coded from the specific dimensions. Regardless, such regressions would rarely occur in a primary study, where either an aggregate approach would be taken or a dimensional approach would be taken. In sum, the notion that effects will be stronger when the focus of the justice matches the target of the outcome is consistent with some of the theories in Figure 2 and may seem conceptually cleaner. However, that conceptual cleanliness is not supported by the results patterns in primary studies (Horvath & Andrews 2007, Karriker & Williams 2009, Liao & Rupp 2005, Rupp & Cropanzano 2002) or the correlational results of meta-analyses (Colquitt et al. 2014, Rupp et al. 2014). Even when results do yield stronger relationships for focus–target matching, the advantage is not large enough to be statistically significant in primary studies or many meta-analytic comparisons. It may be that the distinctions between justice foci are clearer to scholars than they are to participants, especially when supervisors come to embody their organizations (Eisenberger et al. 2010). MANAGING JUSTICE AND FAIRNESS IN ORGANIZATIONS How do the questions pursued in our review shed light on managing justice and fairness in organizations? How can these principles be leveraged to improve employee effectiveness and well- being, and organizational profitability and success? We would argue that two issues are critical: (a) Justice and fairness must come to pervade organizational functioning, and (b) justice and fairness must be considered whenever new technological or business trends begin to change the nature of work. See the sidebar, Practical Implications, for a summary. In terms of the first point, we would argue that little is gained when justice characterizes an event here or an event there. In terms of Figure 1, entities must become more just and more fair. One way to accomplish this is to consider justice with respect to every human resource decision that occurs in organizations. That systemic view would seek to ensure that recruitment and se- lection experiences are handled in a just manner (e.g., Bauer et al. 2001). The assignment and structuring of training would also be done fairly (e.g., Quinones 1995). Justice rules would be used to structure and manage performance appraisals (e.g., Greenberg 1986) and to choose among the options for designing compensation systems (e.g., Dulebohn & Martocchio 1998). Finally, justice principles would be front and center in any communications regarding separation, to benefit both the victims and the survivors (e.g., Brockner et al. 2004). Another way to accomplish justice and fairness on an entity basis is for organizations and supervisors to commit to creating a justice culture. Schein (2010) describes culture as having three levels to it: (a) basic underlying assumptions that serve as the foundation for beliefs and values; (b) the espoused values that serve as spoken ideals, goals, and priorities; and (c) the observable 11.17www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 artifacts that are visible, feelable, and touchable by employees themselves. Those artifacts may include published documentsand signage, rituals and ceremonies, language, technology, products, practices, manners of address, and the physical environment. Assuming the founders or top management of an organization believe that justice matters and that fairness serves as an espoused value, how could such artifacts be used to create a justice culture? Justice could be emphasized in published documents and signage about company priorities, instances of especially fair treatment could be celebrated in ceremonies or rituals, language and manners of address could be shaped in accordance with justice rules, and justice could take on especially salient roles in key practices. For example, interview questions could focus on justice rules when hiring employees or when pro- moting supervisors, and justice could become a more central dimension of supervisor evaluations 360-degree feedback interventions. Taken together, such artifacts could foster a shared perception of justice, or justice climate (Naumann & Bennett 2000). In terms of the second point, whatever system is created to foster justice and fairness on an entity level will need to keep step with key changes in the workplace. For example, many organizations no longer follow traditional work arrangements with full-time employees working 9–5 in the same office. Instead, they are made up of full-time, part-time, and contracted employees working not only from their organization’s headquarters but also at home and in satellite offices. A recent report by the Economist Intelligence Unit and SHRM Foundation identified emerging changesin the workplace,including demographic shifts,globalization efforts, workplace diversity, an emphasis on service over manufacturing industries, and the proliferation of communication technology in the workplace (Econ. Intell. Unit 2014). It is beyond our scope to discuss all of these changes; thus, it is the last change— the proliferation of communication technology— that we focus on for our discussion. Technology introduces new avenues for communications and interactions, connecting employees to their coworkers and organization 24 hours a day. As such, technology presents interesting new issues related to justice and fairness. PRACTICAL IMPLICATIONS n Consider justice with respect to every human resource decision that occurs in organizations. n Ensure that recruitment and selection experiences are handled in a just manner. n Structure and assign training with justice rules in mind. n Use justice rules to develop and manage performance appraisals and design compensation. n Make justice principles central to any communication regarding separation. n Commit to creating a justice culture by integrating fairness into organizational beliefs, values, and artifacts. n Emphasize fairness in published documents and signage about company priorities. n Celebrate and ritualize instances of especially fair treatment. n Include fairness as a central dimension of supervisor evaluations. n Foster justice and fairness by keeping step with key changes in the workplace. n Maintain quality interactions by encouraging timely, polite, and candid electronic communications. n Consider employee fairness reactions when developing policies regarding electronic monitoring practices. n Understand the impact of boundary-crossing technologies on the frequency of justice-relevant information and experiences. 11.18 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 Teleworking Through technological advancements, more employees are taking part in teleworking—defined as working outside the traditional workplace and communicating with coworkers through computer-based technology (Bailey & Kurland 2002). How leaders allocate and manage tele- working likely impacts employee fairness perceptions. These supervisor decisions impact both teleworkers and nonteleworkers alike, presenting a “grass is greener” problem between tele- workers and nonteleworkers. Teleworking also changes the primary mode of communication between employees and their supervisors (Gajendran & Harrison 2007). Electronic communi- cations create potential interpersonal and informational justice concerns, with interactions po- tentially becoming less polite, timely, candid, and adequate. When supervisors implement teleworking policies, their allocation process may tap into all three distributive justice rules. Depending on the organization, teleworking may be afforded equally across employees, based on equity, or on an as needed basis (Thatcher & Bagger 2011). Furthermore, teleworking may impact how supervisors allocate workloads, with absent coworkers being asked to do fewer emergent or impromptu tasks. Such inequities would have their own impacts on distributive justice. Indeed, Thatcher & Bagger (2011) suggest that the most significant justice issues arise not between supervisors and their employees, but rather between teleworkers and nonteleworkers. Finally, the spatial distance between a teleworker and their home office may infuse more uncertainty in their relationships and work expecta- tions. In terms of Figure 2, such uncertainty could amplify the importance of other justice issues. A recent meta-analysis found that teleworking does not have a significant negative impact on thequalityofateleworker’s relationships with coworkers and supervisors (Gajendran & Harrison 2007). However, most teleworking studies focus on relationships between supervisors and employees in which the employees are teleworking. Golden & Fromen (2011) discuss the potential justice issues in situations in which supervisors—rather than employees—are themselves tele- working. They suggest that employees will perceive teleworking supervisors as less fair than on- site supervisors. Investigating these various relationships will contribute to our understanding of how teleworking influences justice and fairness. Electronic Monitoring Technology allows employees to access their work and communicate with coworkers from any- where via laptops and smartphones. Accessibility is a double-edged sword, however. Employees have the ability to access their work from anywhere, but they also have the ability to access nonwork websites from work. Of course, organizations can monitor employee online activity to ensure productivity and monitor cyberloafing—employees using their organization’s internet for personal use during work (Lim 2002). Some organizations also monitor employee behavior on social media (i.e., Facebook, Twitter, Instagram) regardless of whether the use occurred during business hours. These practices, regardless of whether they are outlined in policy handbooks, are likely to incite reactions related to justice and fairness. Specifically, electronic monitoring may create uncertainty about morality. Opponents of electronic monitoring claim it is an invasion of privacy and breeds mistrust in organizations (Alder & Ambrose 2005). Moreover, employees are likely to ask themselves what should be done in regard to monitoring their online behaviors. If employees believe that supervisors should not monitor their behaviors—perhaps because they think monitoring is unnecessary or too invasive— they will perceive electronic monitoring as unfair. Indeed, deonance theory speaks to the visceral 11.19www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 “that’s not fair” reactions that may accompany invasions of privacy (Folger 2001). Such concerns may arise regardless of whether electronic monitoring is permissible based on organizational policies. In a recent empirical study, Alder & Ambrose (2005) conducted a laboratory experiment to examine how feedback constructiveness and medium of communication influenced the perceived fairness of monitoring. They found that participants perceived monitoring to be more fair when the feedback given was constructive rather than destructive and given face-to-face rather than computer-generated. Constructive face-to-face feedback demonstrates sensitivity and respect and provides more adequate justifications—rules relevant to interpersonal and informational justice (Alder & Ambrose 2005). These findings suggest that the way monitoring is handled may have its own impact, regardless of what employees think of monitoring itself. Coworker Connectedness Technology also allows employees to be more connected to their organization, their coworkers, and other members of their field. Through boundary-crossing technologies—personal blogs, social media profiles, tweets, and other media forum—employees are inundated with information about what happens in their organizations, in their coworkers’ personal and professional lives, and in competing organizations (Sánchez Abril et al. 2012). This connectedness may increase the frequency with which employees experience, witness, and share justice-relevant events. That connectedness may also bring noise, however, perhaps providing conflicting and unreliable in- formation that increases uncertainty more than the information decreases it. Coworker connectedness could initiate more justice events, resulting in more data relevant to Figure 1. Interpersonal justice issues may be especially salient as employees utilize electronic communications to voice their opinions about their organization to coworkers and outsiders. The sharing of such opinions may create uncertainty about status and trustworthiness, as employees attempt to sort out which coworkers share valuable information, what information is reliable, what the information says about their status, and what information might be spread about themselves. That connectedness could also allow employees to make equity comparisons that go beyond close referent others to include employees in other areas of their organizations or even in other organizations altogether (Scholl et al. 1987). Researchers have recently begun to discuss how boundary-crossing technologies impact employee connectedness. Sánchez Abril et al. (2012) suggest that the entrance of electronically connected “millennials” into the workplace may require employees to find new ways to set privacy boundaries and revise workplace norms related to connectedness. Similarly, Mainiero & Jones (2013) discuss how texting and instant messaging present new challenges regarding electronic communications when coworkers utilize boundary-crossing technologies to com- municate with each other outside of work. They suggest that organizations should establish procedures to manage social media usage between coworkers and intervene when inappropriate communications occur. Similar to potential reactions to electronic monitoring, some employees may interpret policies related to nonwork activities as a violation of privacy and see them as unfair. CONCLUSION Justice and fairness are issues that resonate throughout employees’ working lives. Employees think about justice-relevant events and entities when they feel uncertain. They think about (and feel) justice and fairness as they consider their relationship with their employer and how much of their 11.20 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 identity to devote to it. Those thoughts and feelings go on to impact a number of important behaviors, from cooperation to engagement to spontaneous positive and negative actions. Managing justice and fairness therefore becomes a critical task for supervisors and the organi- zation as a whole. Doing so requires a systemic and cultural commitment while also attending to technological changes that raise new justice issues while changing how fairness information is shared and communicated. DISCLOSURE STATEMENT The authors are not aware of any affiliations, memberships, funding, or financial holdings that might be perceived as affecting the objectivity of this review. LITERATURE CITED Adams JS. 1965. Inequity in social exchange. In Advances in Experimental Social Psychology, Vol. 2., ed. L Berkowitz, pp. 267–99. New York: Academic Alder GS, Ambrose ML. 2005. An examination of the effect of computerized performance monitoring feedback on monitoring fairness, performance, and satisfaction. Organ. Behav. Hum. Decis. Process. 97:161–77 Ambrose ML, Schminke M. 2009. The role of overall justice judgments in organizational justice research: a test of mediation. J. Appl. Psychol. 94:491–500 AquinoK, TrippTM, Bies RJ.2006. Gettingevenor movingon?Power,proceduraljustice, and types of offense as predictors of revenge, forgiveness, reconciliation, and avoidance in organizations. J. Appl. Psychol. 91:653–68 Bailey DE, KurlandNB. 2002. A review of telework research:findings, new directions,and lessons for the study of modern work. J. Organ. Behav. 23:383–400 Barsky A, Kaplan SA, Beal DJ. 2011. Just feelings? The role of affect in the formation of organizational fairness judgments. J. Manag. 37:248–79 Bauer TN, Truxillo DM, Sanchez RJ, Craig JM, Ferrara P, Campion MA. 2001. Applicant reactions to se- lection: development of the selection procedural justice scale (SPJS). Pers. Psychol. 54:387–419 Bernerth JB, Armenakis AA, Feild HS, Giles WF, Walker HJ. 2007. Leader–member social exchange (LMSX): development and validation of a scale. J. Organ. Behav. 28:979–1003 Bies RJ. 1987. The predicament of injustice: the management of moral outrage. Res. Organ. Behav. 9:289–319 Bies RJ, Moag JF. 1986. Interactional justice: communication criteria of fairness. In Research on Negotiations in Organizations, Vol. 1, ed. RJ Lewicki, BH Sheppard, MH Bazerman, pp. 43–55. Greenwich, CT: JAI Bies RJ, Tripp TM. 2002. “Hot flashes, open wounds”: injustice and the tyranny of its emotions. In Emerging Perspectives on ManagingOrganizational Justice, ed. SW Gilliland, DD Steiner,DP Skarlicki, pp.203–21. Greenwich, CT: Inf. Age Blader SL, Tyler TR. 2009. Testing and extending the group engagement model: linkages between social identity, procedural justice, economic outcomes, and extrarole behavior. J. Appl. Psychol. 94:445–64 Blau P. 1964. Exchange and Power in Social Life. New York: Wiley Brockner J, Spreitzer G, Mishra A, Hochwater W, Pepper L, Weinberg J. 2004. Perceived job control as an antidote to the negative effects of layoffs on survivors’ organizational commitment and job performance. Adm. Sci. Q. 49:76–100 Colquitt JA. 2001. On the dimensionality of organizational justice: a construct validation of a measure. J. Appl. Psychol. 86:386–400 Colquitt JA, Baer MD, Long DM, Halvorsen-Ganepola MDK. 2014. Scale indicators of social exchange relationships: a comparison of relative content validity. J. Appl. Psychol. 99:599–618 Colquitt JA, Chertkoff JM. 2002. Explaining injustice: the interactive effect of explanation and outcome on fairness perceptions and task motivation. J. Manag. 28:591–610 11.21www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 Colquitt JA, LePine JA, Piccolo RF, Zapata CP, Rich BL. 2012. Explaining the justice–performance re- lationship: trust as exchange deepener or trust as uncertainty reducer? J. Appl. Psychol. 97:1–15 Colquitt JA, Rodell JB. 2015. Measuring justice and fairness. In The Oxford Handbook of Organizational Justice, Vol. 1, ed. R Cropanzano, ML Ambrose. New York: Oxford Univ. Press. In press Colquitt JA, Scott BA, Judge TA, Shaw JC. 2006. Justice and personality: using integrative theories to derive moderators of justice effects. Organ. Behav. Hum. Decis. Process. 100:110–27 Colquitt JA, Scott BA, Rodell JB, Long DM, Zapata CP, et al. 2013. Justice at the millennium, a decade later: a meta-analytic test of social exchange and affect-based perspectives. J. Appl. Psychol. 98:199–236 Colquitt JA, Shaw JC. 2005. How should organizational justice be measured? In Handbook of Organizational Justice, ed. J Greenberg, JA Colquitt, pp. 113–52. Mahwah, NJ: Erlbaum Cropanzano R, Byrne ZS. 2000. Workplace justice and the dilemma of organizational citizenship. In Collective Problems in Modern Society: Dilemmas and Solutions, ed. M Van Vugt, TR Tyler, A Biel, pp. 142–61. London: Routledge Cropanzano R, Byrne ZS, Bobocel DR, Rupp DE. 2001. Moral virtues, fairness heuristics, social entities, and other denizens of organizational justice. J. Vocat. Behav. 58:164–209 Desai SD, Sondak H, Diekmann KA. 2011. When fairness neither satisfied nor motivates: the role of risk aversion and uncertainty reduction in attenuating and reversing the fair process effect. Organ. Behav. Hum. Decis. Process. 116:32–45 Dulebohn JH, Martocchio JJ. 1998. Employee perceptions of the fairness of work group incentive pay plans. J. Manag. 24:469–88 Econ. Intell. Unit. 2014. What’s next: future global trends affecting your organization—evolution of work and the worker. Rep., SHRM Found., Alexandria, VA Eisenberger R, Huntington R, Hutchison S, Sowa D. 1986. Perceived organizational support. J. Appl. Psychol. 71:500–7 Eisenberger R, Karagonlar G, Stinglhamber F, Neves P, Becker TE, et al. 2010. Leader–member exchange and affective organizational commitment: The contribution of supervisor’s organizational embodiment. J. Appl. Psychol. 95:1085–103 Folger R. 2001. Fairness as deonance. In Theoretical and Cultural Perspectives on Organizational Justice, ed. SW Gilliland, DD Steiner, DP Skarlicki, pp. 3–34. Greenwich, CT: Inf. Age Folger R. 2012. Deonance: behavioral ethics and moral obligation. In Behavioral Business Ethics: Shaping an Emerging Field, ed. D DeCremer, A Tenbrunsel, pp. 123–42. New York: Taylor & Francis Folger R, Cropanzano R. 2001. Fairness theory: justice as accountability. In Advances in Organizational Justice, ed. J Greenberg, R Cropanzano, pp. 89–118. Stanford, CA: Stanford Univ. Press Folger R, Cropanzano R, Goldman B. 2005. What is the relationship between justice and morality? In Handbook of Organizational Justice, ed. J Greenberg, JA Colquitt, pp. 215–45. Mahwah, NJ: Erlbaum Folger R, Greenberg J. 1985. Procedural justice: an interpretive analysis of personnel systems. Res. Pers. Hum. Resour. Manag. 3:141–83 Folger R, Martin C. 1986. Relative deprivation and referent cognitions: distributive and procedural justice effects. J. Exp. Soc. Psychol. 22:531–46 Folger R, Rosenfield D, Robinson T. 1983. Relative deprivation and procedural justifications. J. Personal. Soc. Psychol. 45:268–73 Fox S, Spector PE, Miles D. 2001. Counterproductive work behavior (CWB) in response to job stressors and organizational justice: some mediator and moderator tests for autonomy and emotions. J. Vocat. Behav. 59:291–309 Gajendran RS, Harrison DA. 2007. The good, the bad, and the unknown about telecommuting: meta-analysis of psychological mediators and individual consequences. J. Appl. Psychol. 92:1524–41 George JM. 1991. State or trait: effects of positive mood on prosocial behaviors at work. J. Appl. Psychol. 76:299–307 Gilliland SW, Groth M, Baker RC IV, Dew AF, Polly LM, Langdon JC. 2001. Improving applicants’ reactions to rejection letters: an application of fairness theory. Pers. Psychol. 54:669–703 11.22 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 Golden TD, Fromen A. 2011. Does it matter where your manager works? Comparing managerial work mode (traditional, telework, virtual) across subordinate work experiences and outcomes. Hum. Relat. 64:1451–75 Goldman BM. 2003. The application of referent cognitions theory to legal-claiming by terminated workers: the role of organizational justice and anger. J. Manag. 29:705–28 Greenberg J. 1986. Organizational performance appraisal procedures: What makes them fair? In Research on Negotiations inOrganizations, ed.JS Greenberg,RCropanzano,pp.25–41.Stanford,CA: StanfordUniv. Press Greenberg J. 1993. The social side of fairness: interpersonal and informational classes of organizational justice. In Justice in the Workplace: Approaching Fairness in Human Resource Management, ed. R Cropanzano, pp. 79–103. Hillsdale, NJ: Erlbaum Horvath M, Andrews SB. 2007. The role of fairness perceptions and accountability attributions in predicting reactions to organizational events. J. Psychol. 141:203–22 Jones DA, Martens ML. 2009. The mediating role of overall fairness and the moderating role of trust certainty in justice-criteria relationships: the formation and use of fairness heuristics in the workplace. J. Organ. Behav. 30:1025–51 Judge TA, Scott BA, Ilies R. 2006. Hostility, job attitudes, and workplace deviance: test of a multilevel model. J. Appl. Psychol. 91:126–38 Kant I. 1795. Perpetual Peace: A Philosophical Essay. New York: Macmillan Karriker JH, Williams ML. 2009. Organizational justice and organizational citizenship behavior: a mediated multifoci model. J. Manag. 35:112–35 Kim TY, Leung K. 2007. Forming and reacting to overall fairness: a cross-cultural comparison. Organ. Behav. Hum. Decis. Process. 104:83–95 Konovsky MA, Pugh SD. 1994. Citizenship behavior and social exchange. Acad. Manag. J. 37:656–69 Krehbiel PJ, Cropanzano R. 2000. Procedural justice, outcome favorability, and emotion. Soc. Justice Res. 13:339–60 Lavelle JJ,Brockner J, KonovskyMA, PriceKH, HenleyAB, et al. 2009.Commitment, proceduralfairness,and organizational citizenship behavior: a multifoci analysis. J. Organ. Behav. 30:337–57 Lazarus RS. 1991. Emotions and Adaptation. New York: Oxford Univ. Press Lee K, Allen NJ. 2002. Organizational citizenship behavior and workplace deviance: the role of affect and cognition. J. Appl. Psychol. 87:131–42 Leventhal GS. 1976. The distribution of rewards and resources in groups and organizations. In Advances in Experimental Social Psychology, Vol. 9, ed. L Berkowitz, W Walster, pp. 91–131. New York: Academic Leventhal GS. 1980. What should be done with equity theory? New approaches to the study of fairness in social relationships In Social Exchange: Advances in Theory and Research, ed. K Gergen, M Greenberg, R Willis, pp. 27–55. New York: Plenum Leventhal GS, Karuza J, Fry W. 1980. Beyond fairness: a theory of allocation preferences. In Justice and Social Interaction: Experimental and Theoretical Contributions from Psychological Research, ed. G Mikula, pp. 167–218. New York: Springer-Verlag Liao H, Rupp DE. 2005. The impact of justice climate and justice orientation on work outcomes: a cross-level multifoci framework. J. Appl. Psychol. 90:242–56 Lim VK. 2002.The ITway of loafingon thejob: cyberloafing, neutralizing and organizational justice. J.Organ. Behav. 23:675–94 Lind EA. 2001a. Fairness heuristic theory: justice judgments as pivotal cognitions in organizational relations. In Advancesin Organizational Justice,ed. JGreenberg,RCropanzano,pp.56–88. Stanford,CA: Stanford Univ. Press Lind EA. 2001b. Thinking critically about justice judgments. J. Vocat. Behav. 58:220–26 Lind EA, Tyler TR. 1988. The Social Psychology of Procedural Justice. New York: Plenum LindEA, Van denBos K. 2002.Whenfairnessworks:towarda generaltheoryof uncertaintymanagement. Res. Organ. Behav. 24:181–223 11.23www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 Mainiero LA, Jones KJ. 2013. Workplace romance 2.0: developing a communication ethics model to address potential sexual harassment from inappropriate social media contacts between coworkers. J. Bus. Ethics 114:367–79 Masterson SS, Lewis K, Goldman BM, Taylor MS. 2000. Integrating justice and social exchange: the differing effects of fair procedures and treatment on work relationships. Acad. Manag. J. 43:738–48 Mayer RC, Davis JH, Schoorman FD. 1995. An integrative model of organizational trust. Acad. Manag. Rev. 20:709–34 McAllister DJ. 1995. Affect-and cognition-based trust as foundations for interpersonal cooperation in organizations. Acad. Manag. J. 38:24–59 Meyer JP, Allen NJ, Smith CA. 1993. Commitment to organizations and occupations: extension and test of a three-component conceptualization. J. Appl. Psychol. 78:538–51 Moorman RH, Blakely GL, Niehoff BP. 1998. Does organizational support mediate the relationship between procedural justice and organizational citizenship behavior? Acad. Manag. J. 41:351–57 Mowday RT, Porter LW, Steers RM. 1982. Employee-Organization Linkages: The Psychology of Com- mitment, Absenteeism, and Turnover. New York: Academic Naumann SE, Bennett N. 2000. A case for procedural justice climate: development and test of a multilevel model. Acad. Manag. J. 43:881–89 Nicklin JM, Greenbaum R, McNall LA, Folger R, Williams KJ. 2011. The importance of contextual variables when judging fairness: an examination of counterfactual thoughts and fairness theory. Organ. Behav. Hum. Decis. Process. 114:127–41 Organ DW. 1990. The motivational basis of organizational citizenship behavior. Res. Organ. Behav. 12:43–72 Quinones MA. 1995. Pretraining context effects: training assignment as feedback. J. Appl. Psychol. 80:226–38 Rawls J. 1971. A Theory of Justice. Cambridge, MA: Harvard Univ. Press Robinson SL, Rousseau DM. 1994. Violating the psychological contract: not the exception but the norm. J. Organ. Behav. 15:245–59 Rupp DE, CropanzanoR. 2002. The mediating effects of social exchange relationships in predicting workplace outcomes from multifoci organizational justice. Organ. Behav. Hum. Decis. Process. 89:925–46 Rupp DE, Shao R, Jones KS, Liao H. 2014. The utility of a multifoci approach to the study of organizational justice: a meta-analytic investigation into the consideration of normative rules, moral accountability, bandwidth-fidelity, and social exchange. Organ. Behav. Hum. Decis. Process. 123:159–85 Rupp DE, Spencer S. 2006. When customers lash out: the effects of customer interactional injustice on emotional labor and the mediating role of discrete emotions. J. Appl. Psychol. 91:971–78 Sánchez Abril P, Levin A, Del Riego A. 2012. Blurred boundaries: social media privacy and the twenty-first- century employee. Am. Bus. Law. J. 49:63–124 Schein EH. 2010. Organizational Culture and Leadership. San Francisco: Jossey-Bass Scholl RW, Cooper EA, McKenna JF. 1987. Referent selection in determining equity perceptions: differential effects on behavioral and attitudinal outcomes. Pers. Psychol. 40:113–24 Scott BA, Colquitt JA, Zapata-Phelan CP. 2007. Justice as a dependent variable: subordinate charisma as a predictor of interpersonal and informational justice perceptions. J. Appl. Psychol. 92:1597–609 Skarlicki DP, Rupp DE. 2010. Dual processing and organizational justice: the role of rational versus expe- riential processing in third-party reactions to workplace mistreatment. J. Appl. Psychol. 95:944–52 Smith HJ, Tyler TR, Huo YJ, Ortiz DJ, Lind EA. 1998. The self-relevant implications of the group-value model: group membership, self-worth, and treatment quality. J. Exp. Soc. Psychol. 34:470–93 Tekleab AG, Takeuchi R, Taylor MS. 2005. Extending the chain of relationships among organizational justice, social exchange, and employee reactions: the role of contract violations. Acad. Manag. J. 48:146–57 Thatcher S, Bagger J. 2011. Working in pajamas: telecommuting, unfairness sources, and unfairness per- ceptions. Negot. Confl. Manag. Res. 4:248–76 Thibaut J, Walker L. 1975. Procedural Justice: A Psychological Analysis. Hillsdale, NJ: Erlbaum Tripp TM, Bies RJ, Aquino K. 2007. A vigilante model of justice: revenge, reconciliation, forgiveness, and avoidance. Soc. Justice Res. 20:10–34 Tyler TR, Blader SL. 2003. The group engagement model: procedural justice, social identity, and cooperative behavior. Personal. Soc. Psychol. Rev. 7:349–61 11.24 Colquitt ! Zipay arop2Colquitt ARI 15 December 2014 16:38 Tyler TR, Degoey P, Smith H. 1996. Understanding why the justice of group procedures matters: a test of the psychological dynamics of the group-value model. J. Personal. Soc. Psychol. 70:913–30 Tyler TR, Lind EA. 1992. A relational model of authority in groups. In Advances in Experimental Social Psychology, Vol. 25, ed. MP Zanna, pp. 115–91. San Diego, CA: Academic Umphress EE, Simmons AL, Folger R, Ren R, Bobocel R. 2013. Observer reactions to interpersonal injustice: the roles of perpetrator intent and victim perception. Organ. Behav. Hum. Decis. Process. 34:327–49 Van den Bos K. 2001a. Fairness heuristic theory: assessing the information to which people are reacting has a pivotal role in understanding organizational justice. In Theoretical and Cultural Perspectives on Organizational Justice, ed. S Gilliland, D Steiner, D Skarlicki, pp. 63–84.Greenwich, CT: Inf. Age Van den Bos K. 2001b.Uncertaintymanagement: the influenceof uncertainty salienceonreactions to perceived procedural fairness. J. Personal. Soc. Psychol. 80:931–41 Van den Bos K. 2003. On the subjective quality of social justice: the role of affect as information in the psychology of justice judgments. J. Personal. Soc. Psychol. 85:482–98 Van den Bos K, Lind EA. 2002. Uncertainty management by means of fairness judgments. In Advances in Experimental Social Psychology, Vol. 34, ed. MP Zanna, pp. 1–60. San Diego, CA: Academic Van den Bos K, Lind EA, Vermunt R, Wilke HAM. 1997a. Howdo I judgemy outcome when I do not know the outcome of others? The psychology of the fair process effect. J. Personal. Soc. Psychol. 72:95–104 Van den Bos K, Miedema J. 2000. Toward understanding why fairness matters: the influence of mortality salience on reactions to procedural fairness. J. Personal. Soc. Psychol. 79:355–66 Van den Bos K, Vermunt R, Wilke HAM. 1997b.Procedural and distributive justice: What is fair dependsmore on what comes first than on what comes next. J. Personal. Soc. Psychol. 72:95–104 Van den Bos K, Wilke HAM, Lind EA. 1998. When do we need procedural fairness? The role of trust in authority. J. Personal. Soc. Psychol. 75:1449–58 Weiss HM, Cropanzano R. 1996. Affective events theory: a theoretical discussion of the structure, causes, and consequences of affective experiences at work. Res. Organ. Behav. 18:1–74 Weiss HM, Suckow K, Cropanzano R. 1999. Effects of justice conditions on discrete emotions. J. Appl. Psychol. 84:786–94 Yang J, Diefendorff JM. 2009. The relations of daily counterproductive workplace behaviors with emotions, situational antecedents, and personality moderators: a diary study in Hong Kong. Pers. Psychol. 62:259–95 11.25www.annualreviews.org ! Justice, Fairness, and Employee Reactions arop2Colquitt ARI 15 December 2014 16:38 
work_qat5wku64jggneyzzyqfx3xhyi	----	Algorithmic Justice in Child Protection: Statistical Fairness, Social Justice and the Implications for Practice $ € £ ¥ social sciences Article Algorithmic Justice in Child Protection: Statistical Fairness, Social Justice and the Implications for Practice Emily Keddell Social and Community Work Programme, School of Social Science, University of Otago, Dunedin 9054, Aotearoa, New Zealand; emily.keddell@otago.ac.nz Received: 5 August 2019; Accepted: 26 September 2019; Published: 8 October 2019 ���������� ������� Abstract: Algorithmic tools are increasingly used in child protection decision-making. Fairness considerations of algorithmic tools usually focus on statistical fairness, but there are broader justice implications relating to the data used to construct source databases, and how algorithms are incorporated into complex sociotechnical decision-making contexts. This article explores how data that inform child protection algorithms are produced and relates this production to both traditional notions of statistical fairness and broader justice concepts. Predictive tools have a number of challenging problems in the child protection context, as the data that predictive tools draw on do not represent child abuse incidence across the population and child abuse itself is difficult to define, making key decisions that become data variable and subjective. Algorithms using these data have distorted feedback loops and can contain inequalities and biases. The challenge to justice concepts is that individual and group rights to non-discrimination become threatened as the algorithm itself becomes skewed, leading to inaccurate risk predictions drawing on spurious correlations. The right to be treated as an individual is threatened when statistical risk is based on a group categorisation, and the rights of families to understand and participate in the decisions made about them is difficult when they have not consented to data linkage, and the function of the algorithm is obscured by its complexity. The use of uninterpretable algorithmic tools may create ‘moral crumple zones’, where practitioners are held responsible for decisions even when they are partially determined by an algorithm. Many of these criticisms can also be levelled at human decision makers in the child protection system, but the reification of these processes within algorithms render their articulation even more difficult, and can diminish other important relational and ethical aims of social work practice. Keywords: child protection; predictive analytics; rights; social justice; algorithms; decision making 1. Introduction This article takes a critical perspective on the debates occurring in many nations in relation to the use of algorithms to assist with risk judgements in child protection contexts. Fundamental to discussions about the use of large, linked datasets to construct algorithms in this domain are the key ethical issues of fairness, transparency and accountability. Given recent developments, some scholars suggest this framework does not go far enough: that justice and rights are more effective concepts to analyse predictive tools, as they go beyond technical solutions, to consider broader social justice consequences (Gurses et al. 2019; Naranayan 2018). These debates should be of much interest to social work, given the professional commitment to social justice ideals in social work as a discipline, and the sharp uptake of predictive tools in child protection contexts where many social workers practice. This article discusses how the data used to create algorithmic tools affect their usefulness and create Soc. Sci. 2019, 8, 281; doi:10.3390/socsci8100281 www.mdpi.com/journal/socsci http://www.mdpi.com/journal/socsci http://www.mdpi.com https://orcid.org/0000-0002-7217-6561 http://www.mdpi.com/2076-0760/8/10/281?type=check_update&version=1 http://dx.doi.org/10.3390/socsci8100281 http://www.mdpi.com/journal/socsci Soc. Sci. 2019, 8, 281 2 of 22 important justice issues for both the families child protection systems work with and the social workers charged with their use. Justice issues are discussed with reference to statistical data fairness aspects such as the sample frame, the malleability of data points, and the feedback loop. Justice concepts are examined by connecting the potential for bias in algorithms with wider debates around rights for families in contact with child protection systems. Implications for transparency and implementation within the special context of the child protection system are discussed. 2. Setting the Scene: Algorithms in Context The use of algorithms in child protection systems is expanding rapidly in the US and UK as well as other jurisdictions (Dencik et al. 2018; Whittaker et al. 2018). Alongside these technical expansions are important ethical and political discussions regarding their use in this context (Keddell 2015b; Dare and Gambrill 2016; Eubanks 2017). The child protection context is one already highly contested in terms of its aims, ideological underpinnings and institutional mechanisms. Whether a child protection system is based on a child protection-, child welfare- or child-focussed policy orientation, for example, will shape its philosophical basis, broad institutional structures, preferred priorities and methods of social work practice (Gilbert et al. 2011). In turn, these broad policy patterns intersect with political and economic structures, with a ‘child protection’ orientation finding an easy alliance with a neoliberal individualised approach to social problems and a residual state role (Keddell 2015a). Notions of rights are also contested in child protection, as the rights of children and parents have areas of convergence, as well as divergence. Consensus about the point at which they should diverge is often not clear in practice, as many studies of child protection decision making show (Benbenishty et al. 2016). Injecting algorithmic forms of decision making into this context adds a further dimension of complexity when considering justice and rights within a child protection system. As Veale and Brass (2019) note, the use of algorithms in public sector domains can brush over important political debates and the contested nature of policy aims. They note that “the literature on the governance of sociotechnical problems has similarly emphasised the intractability of ‘unstructured’ or ‘semi-structured’ problems where there is a lack of consensus around appropriate means and/or ends, and how participatory processes that open up rather than close down are required to socially reach more navigable issues” (p. 5). It would be difficult to find a social policy area with less consensus than child protection, where competing ideologies relating to the proper role of the state in family life, cultural considerations, and children’s rights, needs and ‘best interests’ concepts are diverse and contested (Keddell 2017; Gilbert et al. 2011). Implications for justice are made even more complex by the socio-technical context of use of algorithmic tools (Green and Chen 2019). There is not a single type of use, a single type of algorithm, uniform types of data, nor a single end user impacted by the use of algorithmic risk prediction tools in child protection. In terms of type of use, algorithmic tools can be used either to distribute preventive family support services, in child protection screening decision making, or in risk terrain profiling to predict spatially where child abuse reports might occur (Cuccaro-Alamin et al. 2017; Daley et al. 2016; van der Put et al. 2017). The type of algorithm selected categorises data in algorithm-specific ways to generate graded recommendations or binary flags and can include decision trees or regression methods amongst others, with varying levels of transparency or opacity. Data provenance or sources are from varied places depending on the national and local context, and have differing levels of representativeness, consent for use, ability for accurate linkage, biases, and ‘explainability’. Children and parents involved in the child protection system have a set of complex and at times divergent rights and needs, complicating just who is considered the ‘end user’ and therefore who the algorithmic tool should be fair to. Finally, how an algorithm intersects with the multi-faceted social negotiations already underway in the child protection decision-making environment is important. How an algorithm is used determines its impact within the socio-technical institutional context that is a child protection organisation, yet discussions often focus on accuracy comparisons at the expense of considering the interacting nature of humans, social and institutional contexts, and algorithmic Soc. Sci. 2019, 8, 281 3 of 22 tools (Green and Chen 2019). Tools are seldom used to automate decisions, but more usually are as an aid to human decisions, and can be made available to all or only some decision makers along the child protection decision making continuum (Allegheny County Department of Human Services 2017; Baumann et al. 2013). Views on the use of algorithms in child protection can be polarised. As with any new technology or practice, there are important roles for both promoters and sceptics in the development of the debates. On the one hand, some argue predictive tools can contribute to the prevention of child abuse and neglect by efficient prediction of future service contact, substantiation or placement, through the triage of large linked datasets, drawing on more data than a human could rapidly and accurately appraise, and can select predictor variables based on predictive power in real-time (Cuccaro-Alamin et al. 2017). Particularly at system intake, when human decision-makers have limited information and time (particularly poor conditions for optimum decision-making), algorithms can quickly compute risks of future system contact (Cuccaro-Alamin et al. 2017). On the other hand, issues relating to class and ethnic biases in the data used, other sources of variability in the decisions used as data, data privacy implications, the issue of false positives, limited service user consultation and the lack of transparency of algorithmic processes are cited as serious challenges to the use of algorithmic tools in child protection, particularly where the recipients of services experience high levels of social inequalities, marginalisation, and lack of power in the state–family relationship (Keddell 2014, 2015a, 2016; Munro 2019; Eubanks 2017; Dencik et al. 2018). While some tool developers have made inroads into responding to some of these criticisms, several issues remain unresolved (Chouldechova et al. 2018; Gurses et al. 2019). As Gurses et al. (2019) note, “addressing societal problems embedded in such computing systems may require more holistic approaches . . . and they appeal to diverse theories, frameworks, and histories that challenge and expand the scope of FAT* studies” (Fairness, accountability and transparency). In what follows, I will discuss several aspects of these unresolved debates, specifically, the nature of the data used to construct such algorithms, the feedback loops algorithms rely on, and the contextual justice issues these create for both social workers and service users. 3. Predictive Tool Development The use of number-based assessment tools in child protection contexts is not new. For some 30 years, various actuarial tools (that are in fact simple algorithms) have been used in child protection practice. The key aims were to establish consistency and the correct inclusion and weighting of specific risk factors, derived either from research or professional consensus (Gambrill 2005; Shlonsky and Wagner 2005). Actuarial tools have been the subject of debate. Key criticisms are that child abuse and neglect is inherently uncertain and is not directly amenable to prediction either by humans or statistically, as identified risk factors are neither necessary nor sufficient to predict abuse (Munro et al. 2014). Further critiques note that actuarial tools tend to reduce the professional discretion of social workers and do not include either the perspectives or cultural context of parents or children, nor the interpretive, social and relational elements of decision making (Gillingham 2011; Goddard et al. 1999; Munro et al. 2014). However, their accuracy in some studies are better than clinical prediction, while meta-studies show the majority are more accurate, though not all (Bartelink et al. 2015; van der Put et al. 2017). Algorithmic predictive tools build on the actuarial tradition, arguing that they can improve on actuarial tools in several ways. They are able to draw on more variables derived from large administrative datasets, and weight them directly in relation to the outcome of interest. They can be updated with data in real-time or near real-time; they do not rely on a human to input data; and derive the predictive variables from the data itself, rather than relying on research or professional consensus to identify them (Cuccaro-Alamin et al. 2017). They can then be used to both direct limited resources to the most needy/risky families, or triage notifications to child protection services, serving utilitarian ideals of both demand management in a context of limited resources, and distribute fairly Soc. Sci. 2019, 8, 281 4 of 22 based on need rather than more arbitrary methods of referral or child protection worker decision maker. Based on these logics, tools have been developed and are in use in numerous child protection contexts. One strand of development used linked administrative data to attempt to predict children at risk of future substantiation in the child protection system, originally for the purposes of selection for preventive, in-home visiting services in New Zealand (Vaithianathan 2012; Vaithianathan et al. 2013; Wilson et al. 2015). A later study in the same country trialled a similar tool at the intake centre of the national child protection service and compared the tool’s accuracy to human decision makers—social workers—in that context (Rea and Erasmus 2017). Further research used a predictive tool to determine whether the predictions based on the child protection system data could also predict increased risk for hospital admissions and death by maltreatment (Vaithianathan et al. 2018). In the US, Allegheny county in Pennsylvania introduced a predictive tool in child protection screening—the Allegheny Family Safety tool (AFST)—to triage referrals at the point of notification to the child protection system (Vaithianathan et al. 2017). In Florida, tools were introduced by Eckerd Connect and its for-profit partner, Mindshare Technology, to predict child abuse harm, which was then adopted in Connecticut, Louisiana, Maine, Oklahoma and Tennessee and Chicago. Eckerd’s tool, the ‘rapid feedback safety program’ tool was axed after a short time due to its inaccurate predictions. This latter tool rated children’s risk of being killed or severely injured in the following two years, but the system was swamped with high-risk scores, including 4000 children deemed at 90% or higher of serious injury or death, while children who did experience serious harm were missed (Jackson and Marx 2017). In the UK, companies such as Xantura and others have been working with at least five local authorities to develop predictive tools to identify families likely to access services with preventive services before they present as high need (McIntyre and Pegg 2018). In each instance, there have been concerns raised regarding issues such as data accuracy, the accuracy of the tool’s predictions, profiling, stigma and data privacy, with varying levels of transparency regarding the tools from their progenitors. For example, a Freedom of Information Act request regarding the predictor variables of Xantura’s tool was largely declined due to commercial sensitivity concerns (Sheridan 2018). The Allegheny tool has had much more transparency than others and considerable community involvement, a public technical report, and ethical and impact evaluations, but when asked to report the weighting of the actual variables used, Allegheny Department of Human Services declined to make this or the positive predictive accuracy of the tool—what percentage of those it accurately identifies at different risk levels—public (Eubanks 2018). In Aotearoa New Zealand, political concerns regarding the development of predictive tools in child welfare stopped further research on the tool’s use and implementation due to concern about the experimental design (Kirk 2016). Concerns about the ethical issues associated with these tools have also been examined (Keddell 2015a, 2016; Dare and Gambrill 2016), yet there have been few examinations of algorithm use in child protection from the perspective of the growing movement on fairness, transparency and accountability, nor a consideration of the limits of technical solutions to the important justice issues they evoke (Chouldechova 2017). What are the outstanding challenges to fairness, and the justice and rights issues they raise, when considering predictive algorithms in child protection? Key statistical biases in the data used to create child protection predictive models are as follows. Firstly, the lack of representativeness of the data sample frame, challenging the right to non-discrimination. The social malleability of the outcome an algorithmic tool is trained on, and the fundamental problems with how the algorithm ‘learns’ via its feedback loop both challenge the right to non-discrimination and equality of treatment, as they can result in people not being treated in a ‘like for like’ manner. They may also, through inequalities in the training data, reinforce classed and racialized inequity that is not reflective of actual differences in incidence. These claims are now examined. Soc. Sci. 2019, 8, 281 5 of 22 4. Statistical Fairness and Social Justice The concept of fairness has multiple definitions when used to analyse algorithms (Naranayan 2018). Definitions relate broadly to statistical fairness and social fairness or justice—but they are interrelated as discussed below. Statistical fairness issues include the sample frame (the boundaries defining the data sample), how feedback loops are constructed, and differences in predictive parity (how accurate the algorithm is for different groups). Social definitions of fairness are much broader, relating directly to social justice and rights. Moral conceptualisations of rights are relatively broad, while legal rights are more restricted and clearly defined. Rights-based definitions of fairness generally describe the right to equality of access, treatment and outcomes and the right to non-discrimination—that is, to not be unfairly targeted for restriction of rights. If rights are restricted, this should be proportionate to a person’s harm or risk of harm, and non-arbitrary. Social definitions of fairness also encompass the right to due process—that is, the individual right to equality of treatment under the law and law-like systems, which is what the child protection system is. These are key aspects to consider when an algorithmic tool is used to define risk, as the potential for false positives within an algorithmic construction of risk (and other accuracy issues discussed below) can unfairly discriminate, and result in either an arbitrary or dis-proportionate response to the perceived level of risk. It can also challenge one’s right to due process by resting on a risk of future harm potential and similarity to a group, rather than current individual behaviour (Hughes 2017). These processes therefore can create what McQuillan (2015) calls ‘states of exception’ when it comes to rights, with those calculated as high risk essentially losing rights claims due to their perceived ‘high-risk’ status (Keddell 2015b). Eubanks (2017) argues that in the child protection system due to the profound inequalities in the populations in system contact (often highly classed and raced), that algorithmic tools are more likely to be used because it is a ‘low rights’ environment to begin with, where few end ‘users’ have the power or resources to challenge tool use. Finally, a social justice definition of fairness expects an algorithm not to reproduce or exacerbate social inequalities relating to group rights, such as those related to race, class or gender, a key claim of critics of algorithmic use in public services (Lepri Letouze et al. 2017; Barocas et al. 2017; Eubanks 2017; Keddell 2015b). In child protection systems, the rights of parents and children are both affected by algorithm use. Parents rights in particular are affected, and the emotive aim of protecting children from harm is often used to justify both data use without consent and the inevitable false positives (Dare 2013). Whether the child protection system is considered benign or punitive also affects views of rights considerations in child protection (Dare and Gambrill 2016). To be offered a voluntary, in-home support service or better housing has different ramifications than being investigated for child abuse. There are national differences in how child protection systems are constructed that shape the service offered in response. However, critical perspectives of child protection systems point out that in most Anglophone countries they operate as a key site of the reproduction of social inequalities, have both care and control functions and, while offering protection, can also promote normative parenting ideals mired in cultural and class specificities (Edwards and Gillies 2015). Furthermore, the mixed outcomes of child protection intervention for both children and their families point to the less positive implications of protection-oriented systems that rely on legal intervention within a broader residualist or neoliberal political and economic system (Gilbert et al. 2011; Featherstone et al. 2014). 5. Statistical Fairness and the Sample Frame The first element of statistical fairness that relates to justice considered here centres on the sample frame, as this should capture the whole population it is attempting to predict an event within, or be a randomly selected, large subsample of that population. Without this, the algorithm “diverges from the population it attempts to represent” (Lepri Letouze et al. 2017, p. 7; Sloane 2018). This basic statistical principle ensures that predictions reflect accurate incidence base rates across an entire population and subpopulation groups. Without representational data of a phenomenon, an algorithm’s predictions will become skewed, as it does not have an accurate picture of incidence, so it cannot find the predictor variables related directly to the phenomenon of interest (the outcome variable) (Barocas et al. 2017). Soc. Sci. 2019, 8, 281 6 of 22 As it chooses predictor variables from the data it is provided with, skewed datasets may pick up confounding variables that predict the outcome it is trained on, but neither the outcome, nor the relationships between the predictors and the outcome of actual interest may be reliable. This is especially pertinent in the child protection context, where proxies for child abuse in the child protection data algorithms are trained on may be only weakly related to abuse incidence across the population (Keddell 2016). This is because the sample frame is not representative of child abuse incidence, but instead reflects reported abuse. Much child abuse and neglect are never reported, and many families that are reported may be subject to both surveillance and personal biases. Via these processes, the sample frame available in data generated by child protection systems is not representative of the prevalence of child abuse across a population (Keddell 2015b, 2016; Daro 2009; McDonell et al. 2015; Swahn et al. 2006). For example, a study of a cohort of New Zealand children born in 1998 found that 10% were substantiated for child abuse within the child protection system, but a more representative longitudinal study in the same country found that while 10% of children had ‘definitely’ been abused, a further 27% ‘probably had’. Even if only half of the ‘probably had’ group had been, that would be 23%, showing the higher rates of self-reported abuse compared to child protection system data (Danese et al. 2009; Rouland and Vaithianathan 2018). In another example, a study examining the assumed intergenerational transmission of child abuse found that the greatest influence on the reported levels of intergenerational transmission was the role of detection bias as expressed in Child Protection Service reports (Widom et al. 2015). The extent of the intergenerational transmission of abuse and neglect as recorded in the system contact data “depended in large part on the source of the information used. Individuals with histories of childhood abuse and neglect have higher rates of being reported to child protection services (CPS)for child maltreatment but do not self-report more physical and sexual abuse than matched comparisons” (Widom et al. 2015, p. 1480). The way earlier reports to child protection systems affect later reports is another way in which child protection system data can become skewed. While an algorithm is likely to find earlier reports highly predictive of later reports, (see Wilson et al. 2015), the contribution of greater surveillance of families who have been reported before is not accounted for, and is unlikely to be acknowledged in an unthinking algorithmic process unable to understand these confounds (Keddell 2016). An algorithm views re-reports as unconnected by surveillance mechanisms. If under-reported abuse was evenly spread across the population, there would be less concern about using child protection system data in predictive tools, as while some people would be missed, those identified would be an evenly spread subset of incidence. But there are substantial inequalities built into child protection system data that may not evenly reflect under-reporting (Bywaters 2015). For example, Swahn et al. (2006) compared self-reported abuse amongst detained youths with their child protection records. They found that official data generally “seriously underestimated the prevalence of maltreatment” (p. 415). Importantly, they also found that abused African Americans and girls were both more likely to have court records of abuse compared to Whites/Hispanics, and boys respectively. For example, 86% of White youths self-reported abuse, but only 12% had court records of abuse, 79% of Hispanics self-reported abuse, while just 7% had a court record. For African Americans, 83% self-reported abuse, while 19% had a court record. When converted to a ratio of self-report to court records, this ratio differed between groups, with 1:7 for whites, 1:11 for Hispanics, and 1:4 for African Americans, suggesting that African Americans are more likely to be reported for abuse than other groups, despite very similar self-reported rates of abuse. Inconsistencies between self-reported child abuse or incidence studies, and child protection system contact profoundly affect the ability of predictive tools to accurately identify those at risk of abuse, and lends weight to claims of racial and class-based discrimination built into such tools, as it may lead to some groups (for example, African-Americans) to be considered high risk by a predictive tool, and other ethnic groups to be calculated as low risk, when true incidence across these groups may be more similar than CPS reports suggest. Soc. Sci. 2019, 8, 281 7 of 22 6. Issues in Predictive Parity between Racialized Groups—How Should Fairness Be Evaluated with a View to Justice? Algorithmic prediction tools are used to generate risk scores, and at each risk level, the accuracy rates change—that is, the rates of positive predictive accuracy: what % of those identified have the outcome, as well as other indicators such as false positives, and true and false negatives (Chouldechova et al. 2018). One definition of statistical fairness in the use of predictive analytics is ensuring that the rates of true positives are equal between population groups, although this ‘predictive parity’ may change the risk level at which intervention of some kind occurs for each group, or change the rates of false negatives between groups (For example, the COMPAS debate over racial bias embedded in criminal justice tools was essentially over predictive parity (Whittaker et al. 2018)). Reducing one type of statistical bias may increase another. This means trade-offs are inevitable but, as discussed below, this is even more complex in child protection, as what is considered a true or false positive is mired in the social contexts they are interpreted in, producing many further confounding variables (Chouldechova et al. 2018; Whittaker et al. 2018). Further, the use of algorithmic tools takes place in a complex institutional and human environment where many factors contribute to decision outcomes, not the tool alone. One important factor to know in order to judge the trade-offs between competing fairness criteria is the basic positive predictive accuracy of the model (the proportion of those identified as high risk that have the outcome of interest), together with what cut-off point recommendations will be generated at, and comparing them to what currently happens in a given context. It is only by knowing both predictive accuracy and comparing that to current practice that the inevitable ‘weighing up’ of harms and benefits can be done. The accuracy of algorithms in child protection is often reported as an ‘area under the curve’, instead of the more everyday understanding of positive predictive values. The few times positive predictive values are given in reports, they tend to be low. For example, one study shows 25% of those categorised in the top 10% of risk were true positives when measured over time (Wilson et al. 2015). A study of human decision-makers at the intake service of a child protection agency found that they were 60% accurate in their estimations of future harm, although the algorithmic tool used was 66% accurate (Rea and Erasmus 2017). Bartelink et al. (2015) in a meta-analysis of studies of decision-making tools in child protection found that the relative improvement of actuarial tools is around 10% improvement in accuracy (Bartelink et al. 2015). Their study also shows that the context of decision-making is important: in some studies, actuarial or predictive models are more accurate, in others clinical and predictive tools are about equal, and in a few, humans are more accurate, especially in complex decision contexts (Bartelink et al. 2015). These varied findings show the importance of actual comparisons with humans in context, rather than vague claims based on non-comparable research that ‘algorithms are better’. As mentioned, comparative accuracy studies or evaluations are rare. This because they are difficult to conduct, can be controlled by commercial interests, and are sensitive to public critique. One of the few to conduct a substantial independent evaluation of a child protection prediction tool and make it public, compared accuracy rates before and after implementation of the Allegheny Family Safety tool (AFST) (Goldhaber-Fiebert and Prince 2019). The tool does not mandate decisions but is used in conjunction with human decision makers as a decision support tool at the point of notification. The tool scores notifications from 0–20, and those scoring highly must be discussed with a supervisor. The case is then screened in or out. The evaluation was premised on a subsequent ‘case open’ decision by a case worker to judge whether the screen-in decision had been correct, and on a time limited re-referral rate to see if screen outs had improved. A caseworker is likely to have collected much more depth and quality of information and can weigh up the complex ethical issues at stake, so their judgement for these reasons are a good way to evaluate whether the algorithm-assisted decision was correct (Bartelink et al. 2015). On the other hand, the potential for bias still remains in the human decision and, as discussed below, particularly when considering racial equity, relying on a potentially biased human decision to test the accuracy of a potentially biased algorithmic one appears tautological. A recent Soc. Sci. 2019, 8, 281 8 of 22 study, for example, found that humans using an algorithm to inform their decision still showed bias when combining it with their own judgement process (Green and Chen 2019). Nevertheless, overall, the evaluation found an improvement of those children ‘screened in’ who then had a case opened, of 2.9%, from 43.7% to 46.6%. Of interest is that the improvement is small, (as were all changes) and that even with the tool, 53% of screen-ins are still considered false positives. The evaluation also showed the tool led to a small decrease in the accuracy of screen outs, down to 72.3% from 73.9% (based on those re-referred within a 6 month period), showing that those who were ‘screened out’ using the tool had a higher chance of re-referral, than before its introduction. On the one hand, it could be argued that the conclusion the tool reduced screen out accuracy is somewhat simplistic, as many community factors can affect rates of re-referral: policy changes, changes to the provision of preventive services, changes in poverty levels, and changes in social cohesion (Klein and Merritt 2014). On the other hand, a key claim of algorithmic tools is that they are able to reflect these rapidly changing social and organisational conditions in order to make predictions. This issue points to the difficulties of evaluating predictive tools in context, when so many confounding factors affect both algorithmic and human decision-making, as well as highlighting the limits of the data to begin with: without all relevant data, the tool cannot account for it in its computations. The evaluation also measured the effect of the AFST on racial disparities. The evaluation shows that for those children screened out, the tool had no effect on the chances of re-referral for either Black or White children (p. 21). For those screened in, the percentage of Black children who were first screened in and then had a ‘case opened’ on them remained the same before and after the tool’s introduction, at 47%, while the percentage of White children with a case opened increased from 39% to 46%. So while disparities between the groups of what could be considered ‘true positives’ reduced, this was because of a moderate increase of 7% in the perceived accuracy of White child screen-ins, not an improvement in the accuracy of Black child screen-ins, (who are in this case the protected class), nor of a decrease in the disproportionality of Black children (that is, the comparison to their population rate). As mentioned, this method of measuring accuracy relies on a human decision that could be subject to bias—that is, to ‘open the case’. This is circuitous reasoning, as the tool’s introduction is premised on its unbiased accuracy, yet a human, potentially biased, decision to open the case is used to judge it. While the case worker is not supplied with the score as a way to reduce the confirmation bias aspect of this process, nevertheless, the case worker knows that the case was screened in, in order for them to now be investigating it. This is an issue for the use of subsequent ‘case opens’ for all findings of the evaluation, but particularly so for evaluating changes in racial disparities. Is there a more objective measure to add to this ‘case open’ measure in order to evaluate the claim that the tool ‘reduces racial disparities’? An objective measure required to assess racial disparities is any change to the proportion of Black and White children notified, who were then screened in. This did not appear to be reported in the evaluation. This objective metric—how did the tool affect the proportion of screen-ins, by race—was absent. This example highlights the many nuanced issues of comparing racial groups when evaluating algorithmic tools, and in particular, what counts as equality of outcome. The tool’s evaluation raises the question: how should ‘true positives’ be measured when considering racial justice questions? If a subsequent ‘case opening’ is equated with a ‘true positive’, then the AFST tool reduces racial disparities by improving the accuracy of white child ‘case openings’. But if equality is reducing the disproportionality of Black children being screened in compared to their population share, or disparities between White and Black children’s rates of screen in, then this tool’s effect is not known. But nor could either of these measures be taken solely as evidence of success—in order to consider that reduction successful, one needs to know the incidence of abuse across the population (see above). Reducing protection for Black children is an equally poor outcome, and changes in screen-ins could reflect increasing community need/incidence or bias in referrers. However, as above, algorithmic tools claim to be able to account for all these factors despite the limits of the data used. How an algorithm crystallises and reproduces disproportionality remains an Soc. Sci. 2019, 8, 281 9 of 22 enduring issue, reproducing the disparities already within the wider interlocking child welfare systems, obscuring the ways they may be shaped by bias, and providing them with a veneer of objectivity. Interrogating these assumptions highlights not the creation of inequalities in child protection systems by algorithmic tools, but the reproduction and reification of existing ones. 7. The Social Production of Data and the Feedback Loop In addition to the lack of representativeness of the sample, other data problems can also introduce bias and arbitrariness into predictive tools, challenging rights to equality of treatment. The outcome variables that tools are trained on are usually one of various decision points on the decision-making continuum (Baumann et al. 2013). These include decisions to refer, made by various people outside of child protection systems; decisions to substantiate abuse, made by child protection workers within child protection systems; decisions to remove children, usually made by a judge after a social work recommendation (Chouldechova 2017; Keddell 2016). Each of these decisions can be affected by factors other than the direct abuse or risk of abuse of a child that spring from the social context in which they are made, creating variability in responses to children in similar circumstances, and therefore the data recorded about them (Baumann et al. 2013; Keddell 2014). For example, a recent study in England found that there were significant regional variations in care proceedings in the court system, suggesting different courts have different practices and thresholds for removal (Harwin et al. 2018). A study in New Zealand found that the site office of the national child protection service was the fourth most predictive variable out of 15 for abuse substantiation, even after other variables had been controlled for, suggesting something about the site office culture itself is at play (Wilson et al. 2015). Another UK study found that an ‘inverse intervention law’ seemed to be operating, where poor children in neighbourhoods surrounded by a larger less deprived neighbourhood were much more likely to have contact with the child protection system than equally deprived children surrounded by a highly deprived neighbourhood (Bywaters et al. 2015). Others point out that decisions to notify, substantiate and investigate child abuse can be shaped by multiple factors such as the values and beliefs of the social worker, experience, role type, perceptions of risk, available resources and professional or institutional cultures (Bywaters et al. 2018; Davidson-Arad and Benbenishty 2016; Fallon et al. 2013; Fleming et al. 2014; Fluke et al. 2016; Keddell 2014, 2016). Variations in specific ethnic groups’ contact rates can be particularly affected by both bias and service factors. Indigenous children’s system contact in Canada was more related to the variable provision of local culturally appropriate prevention services, than differences in case characteristics (Fluke et al. 2010). Māori children in New Zealand were perceived by social workers as more risky than non-Maori children in the same situation (Keddell and Hyslop 2019). A Spanish study found no bias related to ethnic group or socio-economic status (SES) in caseworkers, but in students about to become social workers, physical abuse in low SES families was perceived as more severe than in mid SES families, suggesting experience may influence bias in caseworkers (Arruabarrena et al. 2017). In each of these examples, statistical prediction tools that use decision points from the child protection system as the outcome the tool is trained on will reflect, and lend reification to, the many elements that contribute to system contact that have little to do with child abuse, and more to do with inequalities, individual practitioner values, location, decision-making variability and service supply and demand factors (Keddell 2014; McLaughlin and Jonson-Reid 2017). Importantly, in none of the examples given did system contact reflect only the case characteristics of the actual families involved—all were shaped by other factors. These factors mean that hardly any of the decisions that become data points in predictive tools in the child protection context reflect objective outcomes or, rather, outcomes that represent what is assumed about them. Is a child protection office in a particular location more likely to substantiate cases of domestic violence (DV) as child abuse than another? That means that data derived from that office are likely to assign a higher risk score to children witnessing DV from that area in the future, and not those in the same situation in other areas. Is there classed or racial bias in the populations notified and/or investigated for child abuse? Then the use of, for example, parental contact with child protection systems (the third most predictive variable Soc. Sci. 2019, 8, 281 10 of 22 in one study) (Wilson et al. 2015), or parental contact with the criminal justice system, is just as likely to reinforce existing ethnic inequalities in the system rather than reduce them, as it will erroneously identify ethnic or indigenous minorities as high risk compared to people from other groups. In Aotearoa New Zealand, when the adults today were children, a ministerial inquiry found that the cause of ethnic disproportionality in New Zealand’s child welfare system was due to “forms of cultural racism . . . that result in the values and lifestyle of the dominant group being regarded as superior to those of other groups, especially Māori” (p. 9). Many US and UK examples are similar. Certainly, there is evidence of continuing bias that affects who is investigated and how similar parenting behaviours are viewed depending on the parent’s socioeconomic and ethnic status (Roberts and Sangoi 2018; Wexler 2018). These processes show the embedded nature of ethnic or racial bias in the data algorithmic tools tend to draw on. As Whittaker et al. (2018) point out in the criminal justice context, “most assessment systems include several risk factors that function as proxies for race. One risk factor that is often used is “parental criminality” which, given the long and well-documented history of racial bias in law enforcement, including the over-policing of communities of color, can easily skew “high risk” ratings on the basis of a proxy for race.” (p. 13). These same issues are pertinent to child protection data. These data issues can skew an algorithm not only when it is created, but over time as data are fed back into it. If those data are inaccurate, then the algorithm’s opportunity to correct itself is lost. Chouldechova notes that “A key challenge is that we do not get to observe placement outcomes for a large fraction of cases that are screened out. This makes it difficult to assess the accuracy of the models on the full set of referrals, not just those that were screened in” (Chouldechova et al. 2018, p. 12). Where cases are screened out, but abuse occurs again and is not re-reported, the algorithm learns it is correct, even though it was not. It adjusts its predictor variables accordingly. Likewise, other types of data that could significantly change a child’s risk levels are not captured in administrative data, such as improved or decreased levels of informal social support—a key factor in child abuse development (Rostad et al. 2017). A parent might seek formal help from private providers for something that directly affects the likelihood of abuse, yet those data would not be included in the algorithm, nor will changed living arrangements or household membership, all of which could affect true risk (Eubanks 2017). Aradau and Blake note this, commenting that “Debates about big data problematize exactly the limitations of traditional statistical procedures, which . . . do not capture the detailed relationships between individuals and groups as they exist and change in particular situations” (Aradau and Blanke 2017, p. 378). It is these subtle ways that both bias and arbitrariness—equally destructive to notions of fairness—become ‘baked in’ to administrative data that predictor and outcome variables, and feedback loops over time, are drawn from. This results in consistently over-assigning risk to some people while understating it for others in algorithmic computations in child protection and assigning risks to individuals that may have little to do with their individual true ‘risk’ level. As Boyd states “Racism, sexism, and other forms of bigotry and prejudice are still pervasive in contemporary society, but new technologies have a tendency to obscure the ways in which societal biases are baked into algorithmic decision making” (Boyd 2014, p. 56). This lends weight to claims that predictive tools result in the ‘poverty profiling’ of individuals that could impact negatively on their rights to fair treatment, especially given the marked socioeconomic inequities in child protection system contact (Eubanks 2017, 2018). The child protection context is not a benign one—while protecting children from abuse, unwarranted investigations are experienced by families as stressful, intrusive and stigmatising, while in colonial contexts, they operate as a key site of the ongoing reproduction of inequalities for Indigenous peoples (Healy et al. 2011; Keddell and Hyslop 2019). Choate and Lindstrom (2017), for example, examine the use of parenting capacity assessments that contribute to legal intervention in child protection systems. They find that these assessments rest on euro-centric definitions of family, have not been normed on Indigenous populations, and do not take into account the poverty, poor service access and intergenerational Soc. Sci. 2019, 8, 281 11 of 22 trauma that frame the socio-political contexts of many first nations families. In light of how negative perceptions of Indigenous people can get into data that is then used as the basis of state intervention, there are many movements by Indigenous people that aim to reclaim data sovereignty, arguing that data about Indigenous people should be controlled by them, not the state (see the US Indigenous Data Network https://usindigenousdata.arizona.edu/about-us-0 or Te Mana Raraunga https://www.temanararaunga.maori.nz for examples). Of increasing interest is who is missing altogether from data sources used to train algorithms. When there are groups who have hardly any contact with administrative systems, the ledger becomes even more unbalanced. The resulting algorithm will not only over-identify poorer and Indigenous or ethnic minority people but will miss risk amongst more affluent populations (Eubanks 2017). The relative intrusion this disparity creates in the lives of those least able to seek redress compared to the escape from scrutiny of wealthier populations challenges rights to non-discrimination, as some people are ascribed high-risk status while others escape surveillance altogether. Big administrative datasets essentially ‘go easier’ on some people compared to others. These examples highlight the problems in the sample frames used to generate data, and the potential for feedback loops to exacerbate this over time. 8. Consistently Biased? Others argue that despite all this, the sheer amount of data allow for more consistent predictions and are more accurate as the algorithm self-selects the predictor variables—that is, which variables predict the outcome. Cuccaro-Alamin et al. (2017), for example, argue that “PRM (predictive risk modelling) as an approach is inherently more consistent than other risk assessment procedures. Variable selection, although limited by available data, is mathematical and there is no arbitrary selection of predictors . . . they are learning models that continually adjust to new relationships inherent in the data” (p. 293, brackets mine). There are benefits to this, as theoretically speaking, unknown influences, if able to be captured in the data, could be identified by this process that may not be discernible to a human. Yet the limits of the available data are marked as the discussion above shows. Without accurate incidence, and other biases and non-relevant influences on data points, an algorithm’s self-selection of variables can result in spurious associations and predictions that reflect bias of some kind, as in the example of parent’s contact with child protection systems as a child discussed above. While an algorithm may indeed be a more consistent decision maker, consistently biased or skewed recommendations remain problematic. The algorithm self-selecting predictor variable means errors are also difficult to track, leading to reduced transparency. Some argue that a predictive tool’s function is only to predict, not suggest causes. What does it matter if it is predicting based on unknown associations? When the data are so varied (as above) and the associations generated unknown, the function of the algorithm may be calculating quite spurious associations and replicating ‘ecological fallacies’. The invisibility of the function requires examination, including the underpinning assumptions that imply causality (Rowe 2019). A predictive tool may not claim causality, yet it is used in child protection as if it does imply causality, because high-risk scores generate information about specific families that can lead to intervention on those families (Pearl and Mckenzie 2018). This means that the use of an algorithm can identify families whose risk of child protection system contact may have little to do with their specific family relationships or behaviour, but results in an individualistic response that assumes there is something deterministic about them. As Mittelstadt et al. (2016) note: “Causality is not established prior to acting upon the evidence produced by the algorithm . . . Acting on correlations can be doubly problematic . . . Spurious correlations may be discovered rather than genuine causal knowledge . . . Even if strong correlations or causal knowledge are found, this knowledge may only concern populations while actions are directed towards individuals” (p. 5). Where data expected to affect predictions do not, this should cause developers to ask more holistic questions about why this is the case. For example, health data were included in one study, but as https://usindigenousdata.arizona.edu/about-us-0 https://www.temanararaunga.maori.nz Soc. Sci. 2019, 8, 281 12 of 22 they did not increase accuracy, were withdrawn from the model (Wilson et al. 2015). This could have indicated that the predictive tool was reproducing child protection system surveillance patterns (or something else), rather than predicting abuse across the population, as parental and child health issues (prematurity, poor mental health, substance abuse), are well known predictors of child abuse in the research literature (Munro 2002). Chouldechova et al. (2018) note this problem, stating that when considering why certain variables are highly predictive of the outcome variable in child protection algorithms, we “may nevertheless fail to offer a satisfactory answer to why more penetrating than that the particular values of input variables combined to produce a high-risk prediction. One may be able to understand the risk factors involved and how they combine in the model, but the models have no claim to being causal. The overall utility of such an understanding may be quite limited” (p. 11). 9. Improving the Feedback Loop or Reducing Justice? This discussion so far explores statistical issues relating to fairness, highlighting the technical complexities of data production and evaluating tools, but as many authors highlight, broader discussions of justice must consider algorithmic use against a wider set of ethical and political concerns (Dencik et al. 2018; McQuillan 2015). Naranayan (2018) argues we need more focus on “connecting technical issues with theories of justice”. When an algorithm has low accuracy related to problems with feedback, the technical solution focusses on improving the range of data (also called ‘tech solutionism’ (Gurses et al. 2019)). The larger justice issues around improving the data in the child protection context are not discussed. For example, after the cancellation of the Eckerd tool in Chicago child protection which overestimated risk, one of the solutions proposed was to reverse the current practice of expunging unsubstantiated cases from official records (and data) (Jackson and Marx 2017). From a technical perspective, removing unsubstantiated cases introduced statistical bias into the data by excluding cases that were investigated, abuse was not found, but nevertheless may have had other similar characteristics as those that were. Their exclusion damaged the learning ability of the algorithm, as it reduced its ability to make fine-grained, more accurate differentiations between different cases. The fix proposed was to reverse expungement. But in some states, expungement exists to protect people’s right to future due process, so that an earlier child abuse investigation does not taint future notifications and judgements. This method is used in some states to reduce racial and legal biases (Jackson and Marx 2017). Without data on unsubstantiated cases, an algorithm cannot learn whether it was correct in its earlier prediction, but to seek increasing amounts of unsubstantiated cases included in data could exacerbate the very biases predictive tools claim to reduce, by reproducing the racial and classed biases in referrals, even though they may be unfounded (Boyd 2014). This important justice issue should not be subsumed by the need to increase the accuracy of an algorithm. This issue reflects the incidence issue described above. For those cases never notified to child protection services or notified but not investigated, neither of these situations means abuse has not occurred, just that no one saw and reported it. It is for these reasons that the ‘moneyball’ analogy often used to describe algorithmic tools in child protection is a bad one (Riley 2018). In baseball, all outcomes are easily observable and categorically definite. Player x scored a home run, and everybody saw it. When it comes to child abuse, neither the action itself is easily defined, nor who sees it. A child left in a bath slips and hits their head getting out. The parent was distracted by another child. Is this neglect? And what if no one saw it and reported it? Did it happen? Not in the data it did not. And what about if this situation occurred in a poor neighbourhood as opposed to a wealthy whiter one? Will it be viewed differently, and hence get into the data differently? Attempts to improve data lead to increasingly intrusive surveillance and challenges to legal equity. This means that while some claim a predictive model helps track and correct error rates, in fact error rates in real incidence are fundamentally unknown (see Dare and Gambrill 2016). As is described above, attention to precisely what feedback the model is referring to in its selected outcome is important and challenges the ability of the model to learn accurately. It not only does not ‘see’ some abuse, the lack of consensus of the definition of abuse creates further distorted data, Soc. Sci. 2019, 8, 281 13 of 22 as decisions to investigate or substantiate abuse can be highly variable (Doherty 2016; Munro 2002). In the classic Dawes et al. (1989) study of predictive abilities, the three outcomes they used to compare human and actuarial predictions were: major mental illness, the detection of brain damage, and the prediction of survival times relating to illness. All three, or at least the last two, are objective, concrete outcomes unaffected by earlier predictions about them occurring. Neither of these criteria apply to the child protection context, where the outcome is ill-defined and earlier decisions may affect later ones, as earlier substantiations may lead to greater surveillance, further interventions, and a greater likelihood of substantiating further referrals (Keddell 2016). This means that the future recurrence of the outcome required to ‘train’ the algorithm so it can improve on its predictive accuracy is sullied in the child protection context—it is trying to predict an outcome that is socially malleable and affected by the system that is at once intervening on it and recording data about it, creating confounding variables. These inaccuracies in the feedback loop make it difficult for a predictive tool to become more accurate over time. As Gambrill and Schlonsky note in regards to actuarial tools: “The actual risk of recurrence cannot be explored in the absence of intervention by child protective service agencies. Given these limitations, obtaining an accurate base rate of maltreatment is probably impossible . . . Further, discovering the false positive rate is almost impossible. Once the risk has been responded to (i.e., child welfare services are provided) the likelihood of recurrence of abuse in the absence of intervention cannot be determined.” (Gambrill and Shlonsky 2000, p. 823). The damaging nature of the effects of poor feedback can be understood as an accuracy effect, and a justice effect. The distorted exposure to referrers of some groups of people relative to others, and other distortions in incidence reduces the effectiveness of the feedback loop by feeding back into the algorithm those cases that are likely to be a small proportion of child abuse cases across a population, and a skewed proportion of those total cases, overestimating the predictive power of factors such as low income, race and previous service involvement. Presented with only a proportion of future events as feedback, the algorithm then will correct its weighting of predictor variables, and this may reinforce not only inaccurate predictions, but may reproduce, not reduce, the biases within child protection systems. In conclusion, the poor sample frame and feedback issues create significant problems for the use of predictive tools in child protection. Now, I will turn to the implications for social workers using these tools and comment on rights implications. 10. Implications for Practice: Social Worker Responsibility and Family Participation The use of predictive tools presents a number of implementation issues affecting both social workers and the ‘users’ of child protection services. One implementation issue for social work practice is the relative responsibility of the social worker for the decision made. Social workers have responsibilities to ethical principles and codes that assume they are solely responsible for the decisions they make, and they may also hold legal, statutorily defined responsibilities within child protection practice. For example, it is a ‘social worker’ in the Aotearoa New Zealand legislation who must ‘form a belief’ that a child is in need of ‘care and protection’ before legal proceedings can be undertaken (s14, New Zealand Government 1989), and decisions should uphold social justice and human rights obligations (International Federation of Social Work 2014). At the same time, within child protection there are numerous examples of social workers attracting blame, particularly for child deaths, even when there are extensive wider system failings (Lees et al. 2011; Munro 2011). The importation of new public management methods, within neoliberal economic and public service environments, heightens this individualising of blame, as notions of individual responsibility combine with an emphasis on audit and accountability, leaving social workers vulnerable to high levels of personal responsibility (Healy 2009). In the context of algorithmic tools that may contribute to or even mandate decisions, a social worker who relies on such a tool, but cannot explain, nor understand its inner ‘black box’ workings, is vulnerable to approbation from professional regulators, managers within the system and families they are working with. They may be construed as the ‘human in the loop’ essential to limit the unrestrained Soc. Sci. 2019, 8, 281 14 of 22 governance by the algorithm or retain human oversight. But in a high stakes environment and high blame environment, the opposite could also occur—the human actor may defer to the algorithm (Rahwan 2018). In practice, this can leave a social worker vulnerable to either excessive blame if they did not follow the risk score, or captured in a ‘moral crumple zone’ if they do. Elish (2019) describes a moral crumple zone as “how responsibility for an action may be misattributed to a human actor who had limited control over the behavior of an automated or autonomous system. Just as the crumple zone in a car is designed to absorb the force of impact in a crash, the human in a highly complex and automated system may become simply a component—accidentally or intentionally—that bears the brunt of the moral and legal responsibilities when the overall system malfunctions” (p. 20). Studies of child protection workers’ reactions to algorithmic tools illustrate some of these issues. While most practitioners surveyed as part of an Aotearoa New Zealand trial of a tool at intake were open to the predictive tool being used, a significant minority viewed the tool as a labelling device too focussed on risk while minimising protective factors. They were concerned that the data used did not contain accurate information, pointing out that “some information is not able to be put into the model even though it may include the most accurate information about a child or young person (and) some information is reported in the CYF database without being verified” (Rea and Erasmus 2017, p. 83). These concerns echo the more abstract concerns about data discussed above. In the Allegheny county trial, a quarter of practitioners using the tool chose to override its recommendations, suggesting some level of discomfort with the tool’s scoring function, but also suggesting workers may not feel as pressured by the tool as I have suggested above (Chouldechova et al. 2018). The latter evaluation also showed that the tool did not improve consistency between case workers, suggesting many exercised discretion over how much they used the tool’s recommendation. In a study by Bosk (2018) child welfare workers felt that the tendency of statistical tools to operate on the basis of the presence or absence of risk factors without an understanding of how they interacted in the lives of specific individuals led to an overestimation of risk in unfair ways, penalising people for demographic factors such as having more than three children, or children born close together. Thus, some frontline practitioners who often have the best ‘practice-near’ experience of the system, have reservations about data quality, and how the data shapes practice decisions (White et al. 2009). An ability to critically reflect on the tool may protect against the possibility of a tool becoming too powerful, and is a reminder that practitioners often utilise discretion even in highly constrained systems. How tools are implemented and managed are crucial to assisting workers to maintain ultimate control for decisions made. There are also ethical issues of predictive tool use relating to families involved in the child protection system. Families should be able to expect decisions to be explained to them and have input into decision-making processes. Diminished input into decisions challenges many best practice and legal requirements to consider parent and child perspectives and include them in decision making (Healy and Darlington 2009). This lack of explainability affects social worker’s ethical mandates. Where social workers themselves are unable to explain decisions to families, this lack of transparency may cause a sense of moral injury: where social workers know that transparency around decisions, and the implied ability for parents to contribute to and participate in decisions that affect them, is important, but are unable to implement this in their practice (Fenton and Kelly 2017). The marked lack of family involvement as stakeholders in tool development is also a justice issue. There is a call for citizens’ councils or panels as ways to include a citizen voice when algorithmic tools are being developed in public service contexts. Yet the position of parents particularly as potential ‘abusers of children’ is a powerful unspoken reason for their rights as mandated ‘users’ to be diminished in both data consent and participation discussions. As people involved with child protection services come from the most marginalised populations, and due to the mandated nature of the ‘service’, the need for this inclusion is arguably even stronger than for other public service users (McQuillan 2018). Soc. Sci. 2019, 8, 281 15 of 22 11. Human Rights and the Individual—The Right to Reasonable Inference, Consent and Relational Practice Social work remains committed to respect for persons and human rights, as well as humane and relationship-based approaches to practice (International Federation of Social Work 2014). How are these aims affected by the limits of the data as described above? Algorithms rely on a process of grouping people according to their statistical similarities to others across a population, based on available data. Most legal conceptualisations of human rights, however, are intimately tied to the individual, and most nation states have undertaken international covenants to protect the rights of individuals. It is clear from the limits of the data in the child protection context that this right requires special protection in the context of the known biases in the child protection data algorithms draw on; the distal and incomplete nature of available data to accurately depict and predict human behaviour; and the ‘networked’ nature of biases in the data. Other adults in a household in addition to parents may also be risk scored in the prediction process. This can also exacerbate racialised bias, as people’s personal networks are likely to reflect histories of racialized disadvantage and poverty, leading to ‘networked bias’, where parents may be considered high risk due to family members, neighbours or community location (Madden et al. 2017). The conflation of personal with group risk challenges one’s right to be treated as an individual in legal and law-like systems, where due process relies on individual consideration before the law (Barocas and Selbst 2016). This challenges the right to non-discrimination for individuals, as they are judged based essentially on their statistical similarities to others. While the General Data Protection Regulation (EUGDPR EU General Data Protection) enshrines the right to an explanation of algorithmic decisions, Wachter and Mittelstadt (2019) propose an alternative—a right to reasonable inference when using algorithmic scores. It is clear that given the problems with data in the child protection context, anything beyond the most tentative inference is highly contestable, and the ‘inference’ of high risk may be patently unreasonable. Given the power differential between the child protection system and many people coming into contact with it, their general observation may be exacerbated: “individuals are granted little control and oversight over how their personal data is used to draw inferences about them” (p. 3). This control is heightened in contexts where there has been no or little consent to the use of data for this purpose. Some ethicists argue that the imperative to protect children from harm should attenuate data privacy concerns, especially when data or information is already shared without consent after a notification has been made to CPS. The highly emotive nature of the politics of child protection encourages this logic. However, the risk of extreme harm is very small, and false positives are high, while the size of the data net is vast, capturing many people for whom no harm will ever be found (the majority of reports in most countries). In this context, families have a right to know at least how their risk score has been interpreted, and the right to challenge it if they feel it is inaccurate. As Drefuss and Chang (2019) provocatively argue, in a ‘no consent’ or forced consent (to data sharing) environment, the right to challenge and correct is heightened. But whose knowledge is deemed ‘correct’ in such circumstances, and who controls perceptions of accuracy? The hierarchies of knowledge implicit in algorithmically produced forms of knowledge is that they are objectively correct and uncontestable, while service users’ own views about their lives derived from lived experience is relegated to a lesser value, as are any other risk/protective factors not available in the data, nor social worker’s own ‘guilty knowledge’ (that related to values, relationships, emotion and care) (McQuillan 2017; Weick 1999). This ‘machinic neoplatonism’ can evade due process considerations due to the opacity of algorithmic functions, and “appears to reveal a hidden mathematical order in the world that is superior to our direct experience” (McQuillan 2017, p. 1). Along with knowledge, relationships themselves are also affected by the ‘thoughtlessness’ of algorithmic tools. The use of algorithmic tools adds a mechanistic and distant tone to practice relationships and prioritises the task of predicting future harm. In child protection, however, the prediction of future harm is only one of a variety of aims. To actually address the risk of harm, rather Soc. Sci. 2019, 8, 281 16 of 22 than assess it, an engaged and collaborative relationship based on genuineness and trust is needed (Cameron et al. 2013; Spratt and Callan 2004). If people are aware that they have been identified as ‘high risk’ via predictive tools, perceptions of judgement and stigma may damage the quality of this necessary relationship (Spratt and Callan 2004). 12. Considering the Counter-Argument: Problems in Human Child Protection Decision Making It is important, however, to note the mirroring of many algorithmic problems in human decisions in the child protection context. Many system inequalities reflect wider socio-structural conditions. Human decisions can also be arbitrary, biased and subject to institutional processes that lead to variations and inequities in decision outcomes (Keddell 2014). Humans can also rely on invisible heuristics and pattern matching that can lead to decisions based on a cognitive categorisation process, rather than a humane, relational approach that considers each individual person (Vedder 1999). Heuristics can become similarly biased when based on experiences that reflect a ‘skewed sample’ of particular kinds of cases compared to the general population. Other types of discretion-based assessment tools can be introduced to practice with little or no user involvement, direct the focus of practice in perverse or unintended ways dominated by risk, and can lack participatory processes for adults or children. Nor can Social Work claim that social work practice always embodies relationship-based ideals imbued with care, emotion and justice—social work’s history is of both care and control, operationalizing many oppressive state agendas (Margolin 1997). The issue with algorithms is that due to the issues above, they replicate these problems, and through the appearance of objective ‘science’ and the difficulties in explaining them, add another layer of mechanisms that exacerbate rather than address these known injustices. This leads to a consideration as to whether data can be developed to a point where at least the sampling issues could be corrected. In order to provide incidence data, an extreme level of surveillance would be required, as most abuse takes place in the home. Efforts to create large-scale population-wide databases of children have failed on this point. For example, the ‘contact point’ database in the UK was established in 2004 in the wake of the Victoria Climbie tragedy (a child who was killed despite many professionals being aware of her ongoing injuries and abuse) and aimed to contain information about all children in the UK. It was set up to try and improve data sharing but was shut down in 2010 due to concerns about both parents and children’s rights to privacy, the increase in family surveillance and functionality of the database. The example of contact point highlights issues of class and surveillance more generally. The level of surveillance, data linking and targeting that results from these tools only gain traction because they initially affect people from low socioeconomic backgrounds in ‘low rights’ environments. When they are applied to middle class people via ‘whole of population’ approaches, there is often outcry (Eubanks 2017). Another idea for improving data is to focus on more objective outcomes than those found in child protection agency data, such as child injury hospitalizations (see Vaithianathan et al. 2018). This removes the subjective nature of the outcome variable, and health data are becoming more complete in relation to the whole population, at least in countries where there is a national health system (as opposed to private providers who do not share data (see Eubanks 2017). While some have suggested child deaths, these are often in such small numbers that prediction is not possible, and to combine them with hospitalization data muddies the waters (Vaithianathan et al. 2013). Nevertheless, a focus on hospitalisations may correct the sample frame, improve feedback loops, and reduce some exposure surveillance effects, although the ‘spurious correlations’ issue discussed above still remain. Another way to consider research development is to focus on the counterfactual, for example focusing on predictive models trained on ‘unsubstantiation’ as Rodriguez et al. (2019) did, in order to see if protective factors could predict it. While they found accuracy was similar to other tools, they also found that system- and definitional-related factors—rather than family-related factors—were most predictive (such as abuse type, number of days between notification and investigation and if the child Soc. Sci. 2019, 8, 281 17 of 22 was already in foster care). This suggests that the issue remains that some factors unrelated to real harm to children skew the data in significant ways. 13. Conclusions Evaluating algorithmic tools in child protection by combining technical conceptualisations of fairness with social justice perspectives leads to a number of troubling conclusions. Without a database that reflects incidence, the racial and class disproportionalities within child protection system contact are likely to reproduce inequities that relate as much to surveillance biases as they do to differences in true incidence. Poor and ethnic minority families will therefore be subjected to higher rates of state intervention than real disparities in rates, while other children at risk may be incorrectly assumed to be low risk. Other elements of variability relating to poor outcome definition, and the inevitably messy context of decisions that become data points in databases may heighten inaccuracies and biases. Algorithmic tools can produce ecological fallacies, leading to spurious variable selection and prediction that reflect system factors rather than actual incidence risk. Statistical scores relating to group similarities are used to inform an individually focussed decision that may not reflect that specific person’s risk level, but population level risk. As the child protection system is a law-like process with significant implications for people’s lives, people should instead have the right to be treated as an individual and have decisions made about their lives that they are able to participate in and understand. Tool evaluations show very small changes to decision-making patterns compared to prior to tool introduction, suggesting the reproduction of existing decision patterns. Because the feedback loop requires information that is fundamentally not known, distortions in data may be exacerbated over time. Remedies to the feedback loop may also contain threats to justice, such as the retaining of unsubstantiated cases within highly racialized contexts. The broader justice implications for replicating, rather than remedying, both social inequities and the known problems with child protection decisions in child protection system data are only just beginning to be fully understood. The implications of algorithm tool use for both families and social workers require careful consideration, as the ‘reasonable inference’ services users have a right to, may be remarkably tentative in child protection. Social workers occupy a difficult position where they are responsible for upholding ethical codes and principles that may be challenged by using an algorithmic score. Further applied research on the ways social workers, families and algorithms interact as part of complex sociotechnical systems in child protection is needed, as well as ongoing interrogation of the sources and functions of data. Funding: This research received no external funding. Conflicts of Interest: The authors declare no conflict of interest. References Allegheny County Department of Human Services. 2017. Developing Predictive Risk Models to Support Child Maltreatment Hotline Screening Decisions. Allegheny County: Allegheny County Department of Human Services. Aradau, Claudia, and Tobias Blanke. 2017. Politics of prediction: Security and the time/space of governmentality in the age of big data. European Journal of Social Theory 20: 373–91. [CrossRef] Arruabarrena, Ignacia, Joaquín de Paúl, Silvia Indias, and Mikel García. 2017. Racial/ethnic and socio-economic biases in child maltreatment severity assessment in Spanish child protection services caseworkers. Child & Family Social Work 22: 575–86. Barocas, Solon, and Andrew Selbst. 2016. Big Data’s Disparate Impact. California Law Review 671: 62. Available online: https://ssrn.com/abstract=2477899 (accessed on 1 March 2019). [CrossRef] Barocas, Solon, Elizabeth Bradley, Vasant Honavar, and Foster Provost. 2017. Big Data, Data Science, and Civil Rights. Computing Consortium White Paper. Available online: https://arxiv.org/abs/1706.03102 (accessed on 9 August 2018). Bartelink, Cora, Tom A. van Yperen, and Ingrid J. ten Berge. 2015. Deciding on child maltreatment: A literature review on methods that improve decision-making. Child Abuse & Neglect 49: 142–53. [CrossRef] http://dx.doi.org/10.1177/1368431016667623 https://ssrn.com/abstract=2477899 http://dx.doi.org/10.2139/ssrn.2477899 https://arxiv.org/abs/1706.03102 http://dx.doi.org/10.1016/j.chiabu.2015.07.002 Soc. Sci. 2019, 8, 281 18 of 22 Baumann, D., Jon Fluke, L. Dalgleish, and H. Kern. 2013. The decision-making ecology. In From Evidence to Outcomes in Child Welfare: An International Reader. Edited by Aron Shlonsky and Rami Benbenishty. New York: Oxford University Press, pp. 24–38. Benbenishty, Rami, Bilha Davidson-Arad, Mónica López, John Devaney, Trevor Spratt, Carien Koopmans, Erik J. Knorth, Cilia LM Witteman, Jorge F. Del Valle, and David Hayes. 2016. Decision making in child protection: An international comparative study on maltreatment substantiation, risk assessment and interventions recommendations, and the role of professionals’ child welfare attitudes. Child Abuse and Neglect 49: 63–75. [CrossRef] [PubMed] Bosk, Emily Adlin. 2018. What counts? Quantification, worker judgment, and divergence in child welfare decision-making. Human Service Organizations: Management, Leadership & Governance. [CrossRef] Boyd, Reiko. 2014. African American disproportionality and disparity in child welfare: Toward a comprehensive conceptual framework. Children and Youth Services Review 37: 15–27. [CrossRef] Bywaters, Paul. 2015. Inequalities in child welfare: Towards a new policy, research and action agenda. British Journal of Social Work 45: 6–23. [CrossRef] Bywaters, Paul, Geraldine Brady, Tim Sparks, Elizabeth Bos, Lisa Bunting, Brigid Daniel, Brid Featherstone, Kate Morris, and Jonathan Scourfield. 2015. Exploring inequities in child welfare and child protection services: Explaining the ‘inverse intervention law’. Children and Youth Services Review 57: 98–105. [CrossRef] Bywaters, Paul, Geraldine Brady, Lisa Bunting, Brigid Daniel, Brid Featherstone, Chantel Jones, Kate Morris, Jonathan Scourfield, Tim Sparks, and Calum Webb. 2018. Inequalities in English child protection practice under austerity: A universal challenge? Child & Family Social Work 23: 1365–2206. [CrossRef] Cameron, Gary, Marshall Fine, Sarah Maiter, Karen Frensch, and Nancy Freymond. 2013. Creating Positive Systems of Child and Family Welfare: Congruence with the Everyday Lives of Children and Parents. Toronto: University of Toronto Press. Choate, Peter, and G. Lindstrom. 2017. Parenting capacity assessment as a colonial strategy. Canadian Family Law Quarterly 37: 41–56. Chouldechova, Alexandra. 2017. Fair Prediction with Disparate Impact: A Study of Bias in Recidivism Prediction Instruments. Big Data 5: 153–63. [CrossRef] [PubMed] Chouldechova, Alexandra, Emily Putnam-Hornstein, Diana Benavides-Prado, Oleksandr Fialko, and Rhema Vaithianathan. 2018. A case study of algorithm-assisted decision making in child maltreatment hotline screening decisions. Proceedings of Machine Learning Research 81: 1–15. Cuccaro-Alamin, Stephanie, Regan Foust, Rhema Vaithianathan, and Emily Putnam-Hornstein. 2017. Risk assessment and decision making in child protective services: Predictive risk modeling in context. Children and Youth Services Review 79: 291–98. [CrossRef] Daley, Dyann, Michael Bachmann, Brittany A. Bachmann, Christian Pedigo, Minh-Thuy Bui, and Jamye Coffman. 2016. Risk terrain modeling predicts child maltreatment. Child Abuse & Neglect 62: 29–38. [CrossRef] Danese, Andrea, Terrie E. Moffitt, HonaLee Harrington, Barry J. Milne, Guilherme Polanczyk, Carmine M. Pariante, Richie Poulton, and Avshalom Caspi. 2009. Adverse childhood experiences and adult risk factors for age-related disease: Depression, inflammation, and clustering of metabolic risk markers. Archives of Pediatrics and Adolescent Medicine 163: 1135–43. [CrossRef] [PubMed] Dare, Tim. 2013. Predictive risk modelling and child maltreatment: Ethical challenges. In Children in Crisis. Hamilton: University of Waikato. Dare, Tim, and Eileen Gambrill. 2016. Ethical Analysis: Predictive Risk Models at Call Screening for Allegheny County. Pittsburgh: Allegheny County Department of Human Services. Daro, Deborah. 2009. The history of science and child abuse prevention: A reciprocal relationship. In Preventing Child Maltreatment: Community Approaches. Edited by Kenneth Dodge and Doriane Coleman. New York: The Guildford Press. Davidson-Arad, Bilha, and Rami Benbenishty. 2016. Child Welfare Attitudes, Risk Assessments and Intervention Recommendations: The Role of Professional Expertise. British Journal of Social Work 46: 186–203. [CrossRef] Dawes, Robyn M., David Faust, and Paul E. Meehl. 1989. Clinical versus actuarial judgment. Science 243: 1668–74. [CrossRef] [PubMed] Dencik, Lina, Arne Hintz, Joanna Redden, and Harry Warne. 2018. Data Scores as Governance: Investigating Uses of Citizen Scoring in Public Services. Cardiff: Cardiff University. http://dx.doi.org/10.1016/j.chiabu.2015.03.015 http://www.ncbi.nlm.nih.gov/pubmed/25935254 http://dx.doi.org/10.1080/23303131 http://dx.doi.org/10.1016/j.childyouth.2013.11.013 http://dx.doi.org/10.1093/bjsw/bct079 http://dx.doi.org/10.1016/j.childyouth.2015.07.017 http://dx.doi.org/10.1111/cfs.12383 http://dx.doi.org/10.1089/big.2016.0047 http://www.ncbi.nlm.nih.gov/pubmed/28632438 http://dx.doi.org/10.1016/j.childyouth.2017.06.027 http://dx.doi.org/10.1016/j.chiabu.2016.09.014 http://dx.doi.org/10.1001/archpediatrics.2009.214 http://www.ncbi.nlm.nih.gov/pubmed/19996051 http://dx.doi.org/10.1093/bjsw/bcu110 http://dx.doi.org/10.1126/science.2648573 http://www.ncbi.nlm.nih.gov/pubmed/2648573 Soc. Sci. 2019, 8, 281 19 of 22 Doherty, Paula. 2016. Child protection threshold talk and ambivalent case formulations in ‘borderline’ care proceedings cases. Qualitative Social Work 16: 698–716. [CrossRef] Drefuss, Suelette, and Shanton Chang. 2019. Uber surveillance in consumer markets. Paper presented at the Digital Citizen’s Conference, University of Melbourne, Melbourne, Australia, July 24–26. Edwards, Ros, and Val Gillies. 2015. Brain science and early years policy: Hopeful ethos or ‘cruel optimism’? Critical Social Policy 35: 167–87. [CrossRef] Elish, Madeleine Claire. 2019. Moral crumple zones: Cautionary tales in human-robot interaction. Science, Technology, and Society 5: 40–60. [CrossRef] Eubanks, Virginia. 2017. Automating Inequality: How High-Tech Tools Profile, Police and Punish the Poor. New York: St. Martin’s Press. Eubanks, Virginia. 2018. A response to Allegheny County DHS. Available online: https://virginia-eubanks.com/ 2018/02/16/a-response-to-allegheny-county-dhs/ (accessed on 28 March 2019). EUGDPR (EU General Data Protection). 2019. General Data Protection Regulation. EU. Available online: https://eugdpr.org (accessed on 2 October 2018). Fallon, Barbara, Martin Chabot, John Fluke, Cindy Blackstock, Bruce MacLaurin, and Lil Tonmyr. 2013. Placement decisions and disparities among Aboriginal children: Further analysis of the Canadian incidence study of reported child abuse and neglect part A: Comparisons of the 1998 and 2003 surveys. Child Abuse & Neglect 37: 47–60. [CrossRef] Featherstone, Brid, Kate Morris, and Sue White. 2014. Re-Imagining Child Protection: Towards Humane Social Work with Families. Bristol: Policy Press. Fenton, Jane, and Timothy Kelly. 2017. ‘Risk is King and Needs to take a Backseat!’ Can social workers’ experiences of moral injury strengthen practice? Journal of Social Work Practice 31: 461–75. [CrossRef] Fleming, Piers, Laura Biggart, and Chris Beckett. 2014. Effects of Professional Experience on Child Maltreatment Risk Assessments: A Comparison of Students and Qualified Social Workers. British Journal of Social Work 45: 2298–316. [CrossRef] Fluke, John D., Martin Chabot, Barbara Fallon, Bruce MacLaurin, and Cindy Blackstock. 2010. Placement decisions and disparities among aboriginal groups: An application of the decision making ecology through multi-level analysis. Child Abuse & Neglect 34: 57–69. [CrossRef] Fluke, John D., Tyler W. Corwin, Dana M. Hollinshead, and Erin J. Maher. 2016. Family preservation or child safety? Associations between child welfare workers’ experience, position, and perspectives. Children and Youth Services Review 69: 210–18. [CrossRef] Gambrill, Eileen. 2005. Decision making in child welfare: Errors and their context. Children and Youth Services Review 27: 347–52. [CrossRef] Gambrill, Eileen, and Aron Shlonsky. 2000. Risk assessment in context. Children and Youth Services Review 22: 813–37. [CrossRef] Gilbert, Neil, Nigel Parton, and Marit Skivenes. 2011. Child Protection Systems: International Trends and Orientations. Oxford: Oxford University Press. Gillingham, Phillip. 2011. Decision-making tools and the development of expertise in child protection practitioners: Are we ‘just breeding workers who are good at ticking boxes’? Child & Family Social Work 16: 412–21. [CrossRef] Goddard, Chris R., Bernadette J. Saunders, Janet R. Stanley, and Joe Tucci. 1999. Structured risk assessment procedures: Instruments of abuse? Child Abuse Review 8: 251–63. [CrossRef] Goldhaber-Fiebert, Jeremy, and Lea Prince. 2019. Impact Evaluation of a Predictive Risk Modeling Tool for Allegheny County’s Child Welfare Office. Pittsburgh: Allegheny County. Green, Ben, and Yiling Chen. 2019. The principles and limits of algorithm-in-the-loop decision-making. Proceedings of the ACM on Human-Computer Interaction 3: 50–74. Gurses, Seeda, Sita Gangadharan, and Suresh Venkatasubramanian. 2019. Critiquing and Rethinking Accountability, Fairness, and Transparency. Our Data Bodies Project US: Our Data Badies Project. Available online: https://www.odbproject.org/2019/07/15/critiquing-and-rethinking-fairness-accountability- and-transparency/ (accessed on 30 July 2019). Harwin, Judith, B. Alrouh, S. Bedson, and Karen Broadhurst. 2018. Care Demand and Regional Variability in England: 2010/11 to 2016/17. Lancaster: Lancaster University. http://dx.doi.org/10.1177/1473325016640062 http://dx.doi.org/10.1177/0261018315574020 http://dx.doi.org/10.17351/ests2019.260 https://virginia-eubanks.com/2018/02/16/a-response-to-allegheny-county-dhs/ https://virginia-eubanks.com/2018/02/16/a-response-to-allegheny-county-dhs/ https://eugdpr.org http://dx.doi.org/10.1016/j.chiabu.2012.10.001 http://dx.doi.org/10.1080/02650533.2017.1394827 http://dx.doi.org/10.1093/bjsw/bcu090 http://dx.doi.org/10.1016/j.chiabu.2009.08.009 http://dx.doi.org/10.1016/j.childyouth.2016.08.012 http://dx.doi.org/10.1016/j.childyouth.2004.12.005 http://dx.doi.org/10.1016/S0190-7409(00)00123-7 http://dx.doi.org/10.1111/j.1365-2206.2011.00756.x http://dx.doi.org/10.1002/(SICI)1099-0852(199907/08)8:4&lt;251::AID-CAR543&gt;3.0.CO;2-M https://www.odbproject.org/2019/07/15/critiquing-and-rethinking-fairness-accountability-and-transparency/ https://www.odbproject.org/2019/07/15/critiquing-and-rethinking-fairness-accountability-and-transparency/ Soc. Sci. 2019, 8, 281 20 of 22 Healy, Karen. 2009. A case of mistaken identity: The social welfare professions and New Public Management. Journal of Sociology 45: 401–18. [CrossRef] Healy, Karen, and Yvonne Darlington. 2009. Service user participation in diverse child protection contexts: Principles for practice. Child and Family Social Work 14: 420–30. [CrossRef] Healy, Karen, Yvonne Darlington, and Judith A. Feeney. 2011. Parents’ participation in child protection practice: Toward respect and inclusion. Families in Society: The Journal of Contemporary Social Services 92: 282–88. [CrossRef] Hughes, Tim. 2017. Prediction and Social Investment. In Social Investment: A New Zealand Policy Experiment. Edited by Jonathan Boston and David Gill. Wellington: Bridget Williams Books, pp. 179–202. International Federation of Social Work. 2014. Global Definition of Social Work. IFSW. Available online: https://www.ifsw.org/what-is-social-work/global-definition-of-social-work/ (accessed on 1 August 2019). Jackson, David, and Gary Marx. 2017. Data Mining Program Designed to Predict Child Abuse Proves Unreliable, DCFS Says. Chicago Tribune. December 6. Available online: http://www.chicagotribune.com/news/ watchdog/ct-dcfs-eckerd-met-20171206-story.html (accessed on 22 February 2018). Keddell, Emily. 2014. Current debates on variability in child welfare decision-making: A selected literature review. Social Sciences 3: 916–40. [CrossRef] Keddell, Emily. 2015a. The ethics of predictive risk modelling in the Aotearoa/New Zealand child welfare context: Child abuse prevention or neo-liberal tool? Critical Social Policy 35: 69–88. [CrossRef] Keddell, Emily. 2015b. Predictive Risk Modelling: On Data, Rights and Politics. Reimagining Social Work. Available online: http://www.reimaginingsocialwork.nz/2015/06/predictive-risk-modelling-on-rights-data- and-politics/ (accessed on 6 October 2019). Keddell, Emily. 2016. Substantiation, decision-making and risk prediction in child protection systems. Policy Quarterly 12: 46–59. [CrossRef] Keddell, Emily. 2017. Interpreting children’s best interests: Needs, attachment and decision-making. Journal of Social Work 17: 324–42. [CrossRef] Keddell, Emily, and Ian Hyslop. 2019. Ethnic inequalities in child welfare: The role of practitioner risk perceptions. Child & Family Social Work, 1–12. [CrossRef] Kirk, Shelley. 2016. Children ‘not lab-rats’—Anne Tolley intervenes in child abuse experiment. Stuff, July 30. Klein, Sacha, and Darcey Merritt. 2014. Neighborhood racial & ethnic diversity as a predictor of child welfare system involvement. Children and Youth Services Review 41: 95–105. Lees, Amanda, Edgar Meyer, and Jackie Rafferty. 2011. From Menzies Lyth to Munro: The Problem of Managerialism. British Journal of Social Work 43: 542–58. [CrossRef] Lepri Letouze, Bruno, Jacopo Staiano, David Sangokoya, Emmanuel Letouzé, and Nuria Oliver. 2017. The Tyranny of Data? The Bright and Dark Sides of Data-Driven Decision-Making for Social Good. In Transparent Data Mining for Big and Small Data, Studies in Big Data Series. Springer: Cham, Switzerland. Madden, M., M. Gilman, K. Levy, and A. Marwick. 2017. Privacy, Poverty, and Big Data: A Matrix of Vulnerabilities for Poor Americans. Washington University Law Review 95: 53–125. Margolin, L. 1997. Under the Cover of Kindness: The Invention of Social Work. Charlottesville and London: University Press of Virginia. McDonell, J. R., A. Ben-Arieh, and G. B. Melton. 2015. Strong Communities for Children: Results of a Multi-Year Community-Based Initiative to Protect Children from Harm. Child Abuse & Neglect 41: 79–96. McIntyre, N., and D. Pegg. 2018. Councils use 377,000 people’s data in efforts to predict child abuse. The Guardian, September 16. McLaughlin, Michael, and Melissa Jonson-Reid. 2017. The relationship between child welfare financing, screening, and substantiation. Children and Youth Services Review 82: 407–12. [CrossRef] McQuillan, Dan. 2015. Algorithmic states of exception. European Journal of Cultural Studies 18: 564–76. [CrossRef] McQuillan, Dan. 2017. Data Science as Machinic Neoplatonism. Philosophy & Technology 31: 253–72. [CrossRef] McQuillan, Dan. 2018. People’s Councils for Ethical Machine Learning. Social Media + Society 4. [CrossRef] Mittelstadt, Brent Daniel, Patrick Allo, Mariarosaria Taddeo, Sandra Wachter, and Luciano Floridi. 2016. The ethics of algorithms: Mapping the debate. Big Data & Society 3: 2053951716679679. Munro, Eileen. 2002. Effective Child Protection. London: Sage. Munro, Eileen. 2011. The Munro Review of Child Protection: Final Report, a Child-Centred System. London: The Stationary Office Limited. http://dx.doi.org/10.1177/1440783309346476 http://dx.doi.org/10.1111/j.1365-2206.2009.00613.x http://dx.doi.org/10.1606/1044-3894.4126 https://www.ifsw.org/what-is-social-work/global-definition-of-social-work/ http://www.chicagotribune.com/news/watchdog/ct-dcfs-eckerd-met-20171206-story.html http://www.chicagotribune.com/news/watchdog/ct-dcfs-eckerd-met-20171206-story.html http://dx.doi.org/10.3390/socsci3040916 http://dx.doi.org/10.1177/0261018314543224 http://www.reimaginingsocialwork.nz/2015/06/predictive-risk-modelling-on-rights-data-and-politics/ http://www.reimaginingsocialwork.nz/2015/06/predictive-risk-modelling-on-rights-data-and-politics/ http://dx.doi.org/10.26686/pq.v12i2.4587 http://dx.doi.org/10.1177/1468017316644694 http://dx.doi.org/10.1111/cfs.12620 http://dx.doi.org/10.1093/bjsw/bcr183 http://dx.doi.org/10.1016/j.childyouth.2017.10.013 http://dx.doi.org/10.1177/1367549415577389 http://dx.doi.org/10.1007/s13347-017-0273-3 http://dx.doi.org/10.1177/2056305118768303 Soc. Sci. 2019, 8, 281 21 of 22 Munro, Eileen. 2019. Predictive Analytics in Child Protection. CHESS Working Paper No. 2019-03. Knowledge for use (K4U) Project. Durham, UK: Durham University. Munro, Eileen, Julie Taylor, and Caroline Bradbury-Jones. 2014. Understanding the Causal Pathways to Child Maltreatment: Implications for Health and Social Care Policy and Practice. Child Abuse Review 23: 61–74. [CrossRef] Naranayan, Arvind. 2018. 21 Fairness Definitions and Their Politics. Youtube: Arvind Naranayan, Available online: https://www.youtube.com/watch?v=jIXIuYdnyyk (accessed on 1 August 2019). New Zealand Government. 1989. Oranga Tamariki Act; Wellington: New Zealand Government. Available online: http://www.legislation.govt.nz/act/public/1989/0024/latest/whole.html (accessed on 1 August 2019). Pearl, Judea, and Dana Mckenzie. 2018. The Book of Why: The New Science of Cause and Effect. New York: Basic Books. Rahwan, Iyad. 2018. Society-in-the-loop: Programming the algorithmic social contract. Ethics and Information Technology 20: 5–14. [CrossRef] Rea, David, and Robert Erasmus. 2017. Report of the Enhancing Decision-Making Project; Wellington: Ministry of Social Development. Available online: https://mvcot.govt.nz/assets/Uploads/OIA-responses/Report-of-the- Enhancing-Intake-Decision-Making-Project.pdf (accessed on 15 September 2017). Riley, Naomi. 2018. Can Big Data Help Save Abused Kids? Washington, DC: American Enterprise Institute, Available online: https://reason.com/2018/01/22/can-big-data-help-save-abused/ (accessed on 1 August 2019). Roberts, Dorothy, and Lisa Sangoi. 2018. Black Families Matter: How the Child Welfare System Punishes Poor Families of Color. Injustice Today. March 26. Available online: https://theappeal.org/black-families-matter- how-the-child-welfare-system-punishes-poor-families-of-color-33ad20e2882e/ (accessed on 1 August 2019). Rodriguez, Maria, Diane DePanfilis, and Paul Lanier. 2019. Bridging the Gap: Social Work Insights for Ethical Algorithmic Decision-Making in Human Services. IBM Journal of Research and Development, 1. [CrossRef] Rostad, Whitney L., Tia McGill Rogers, and Mark J. Chaffin. 2017. The influence of concrete support on child welfare program engagement, progress, and recurrence. Children and Youth Services Review 72: 26–33. [CrossRef] [PubMed] Rouland, Bénédicte, and Rhema Vaithianathan. 2018. Cumulative Prevalence of Maltreatment among New Zealand Children, 1998–2015. American Journal of Public Health 108: 511–13. [CrossRef] [PubMed] Rowe, Michael. 2019. Shaping Our Algorithms Before They Shape Us. In Artificial Intelligence and Inclusive Education: Speculative Futures and Emerging Practices. Edited by Jeremy Knox, Yuchen Wang and Michael Gallagher. Singapore: Springer Singapore, pp. 151–63. Sheridan, Ed. 2018. Hackney Council Pays £360k to Data Firm Whose Software Profiles Troubled Families. London: Hackney Citizen. Shlonsky, Aron, and David Wagner. 2005. The next step: Integrating actuarial risk assessment and clinical judgment into an evidence-based practice framework in CPS case management. Children and Youth Services Review 27: 409–27. [CrossRef] Sloane, Mona. 2018. Making Artificial Intelligence Socially Just: Why the Current Focus on Ethics Is Not Enough. London: London School of Economics., Available online: http://blogs.lse.ac.uk/politicsandpolicy/artificial- intelligence-and-society-ethics/ (accessed on 1 August 2019). Spratt, Trevor, and J. Callan. 2004. Parents’ Views on Social Work Interventions in Child Welfare Cases. British Journal of Social Work 34: 199–224. [CrossRef] Swahn, Monica H., Daniel J. Whitaker, Courtney B. Pippen, Rebecca T. Leeb, Linda A. Teplin, Karen M. Abram, and Gary M. McClelland. 2006. Concordance between Self-Reported Maltreatment and Court Records of Abuse or Neglect among High-Risk Youths. American Journal of Public Health 96: 1849–53. [CrossRef] [PubMed] Vaithianathan, Rhema. 2012. Can Administrative Data Be Used to Identify Children at Risk of Adverse Outcomes? Auckland: The University of Auckland. Vaithianathan, Rhema, Tim Maloney, Emily Putnam-Hornstein, and Nan Jiang. 2013. Children in the Public Benefit System at Risk of Maltreatment: Identification via Predictive Modeling. American Journal of Preventive Medicine 45: 354–59. [CrossRef] [PubMed] Vaithianathan, Rhema Nan Jiang, Tim Maloney, and Emily Putnam-Hornstein. 2017. Developing Predictive Risk Models to Support Child Maltreatment Hotline Screening Decisions: Allegheny County Methodology and Implementation. In Center for Social Data Analytics. Auckland: Auckland University of Technology. http://dx.doi.org/10.1002/car.2266 https://www.youtube.com/watch?v=jIXIuYdnyyk http://www.legislation.govt.nz/act/public/1989/0024/latest/whole.html http://dx.doi.org/10.1007/s10676-017-9430-8 https://mvcot.govt.nz/assets/Uploads/OIA-responses/Report-of-the-Enhancing-Intake-Decision-Making-Project.pdf https://mvcot.govt.nz/assets/Uploads/OIA-responses/Report-of-the-Enhancing-Intake-Decision-Making-Project.pdf https://reason.com/2018/01/22/can-big-data-help-save-abused/ https://theappeal.org/black-families-matter-how-the-child-welfare-system-punishes-poor-families-of-color-33ad20e2882e/ https://theappeal.org/black-families-matter-how-the-child-welfare-system-punishes-poor-families-of-color-33ad20e2882e/ http://dx.doi.org/10.1147/JRD.2019.2934047 http://dx.doi.org/10.1016/j.childyouth.2016.10.014 http://www.ncbi.nlm.nih.gov/pubmed/28533569 http://dx.doi.org/10.2105/AJPH.2017.304258 http://www.ncbi.nlm.nih.gov/pubmed/29470112 http://dx.doi.org/10.1016/j.childyouth.2004.11.007 http://blogs.lse.ac.uk/politicsandpolicy/artificial-intelligence-and-society-ethics/ http://blogs.lse.ac.uk/politicsandpolicy/artificial-intelligence-and-society-ethics/ http://dx.doi.org/10.1093/bjsw/bch022 http://dx.doi.org/10.2105/AJPH.2004.058230 http://www.ncbi.nlm.nih.gov/pubmed/17008582 http://dx.doi.org/10.1016/j.amepre.2013.04.022 http://www.ncbi.nlm.nih.gov/pubmed/23953364 Soc. Sci. 2019, 8, 281 22 of 22 Vaithianathan, Rhema, Bénédicte Rouland, and Emily Putnam-Hornstein. 2018. Injury and Mortality Among Children Identified as at High Risk of Maltreatment. Pediatrics 141. [CrossRef] [PubMed] van der Put, Claudia E., Merian B. R. Bouwmeester-Landweer, Eleonore A. Landsmeer-Beker, Jan M. Wit, Friedo W. Dekker, N. Pieter J. Kousemaker, and Herman E. M. Baartman. 2017. Screening for potential child maltreatment in parents of a newborn baby: The predictive validity of an Instrument for early identification of Parents at Risk for child Abuse and Neglect (IPARAN). Child Abuse & Neglect 70: 160–68. [CrossRef] Veale, Michael, and Irina Brass. 2019. Administration by Algorithm? Public Management meets Public Sector Machine Learning. In Algorithmic Regulation. Edited by Karen Yeung and Martin Lodge. Oxford: Oxford University Press. Vedder, Anton. 1999. KDD: The challenge to individualism. Ethics and Information Technology 1: 275–81. [CrossRef] Wachter, Sandra, and Brett Mittelstadt. 2019. A Right to Reasonable Inferences: Re-Thinking Data Protection Law in the Age of Big Data and AI. Columbia Business Law Review 2: 1–84. Weick, Ann. 1999. Guilty knowledge. Families in Society 80: 327–32. [CrossRef] Wexler, Richard. 2018. Poor Kids End Up in Foster Care Because Parents Don’t Get Margin of Error Rich Do. Youth Today, March 16. White, Sue, Karen Broadhurst, David Wastell, Sue Peckover, Chris Hall, and Andy Pithouse. 2009. Whither practice-near research in the modernization programme? Policy blunders in children’s services. Journal of Social Work Practice 23: 401–11. [CrossRef] Whittaker, Meredith, Kate Crawford, Roel Dobbe, Genevieve Fried, Elizabeth Kaziunas, Varoon Mathur, Sarah Myers West, Rashida Richardson, Jason Schultz, and Oscar Schwartz. 2018. AI Now Report 2018. New York: AI Now Institute. Widom, Cathy Spatz, Sally J. Czaja, and Kimberly A. DuMont. 2015. Intergenerational transmission of child abuse and neglect: Real or detection bias? Science 347: 1480–85. [CrossRef] [PubMed] Wilson, Moira L., Sarah Tumen, Rissa Ota, and Anthony G. Simmers. 2015. Predictive Modeling: Potential Application in Prevention Services. American Journal of Preventive Medicine 48: 509–19. [CrossRef] [PubMed] © 2019 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). http://dx.doi.org/10.1542/peds.2017-2882 http://www.ncbi.nlm.nih.gov/pubmed/29378899 http://dx.doi.org/10.1016/j.chiabu.2017.05.016 http://dx.doi.org/10.1023/A:1010016102284 http://dx.doi.org/10.1606/1044-3894.1212 http://dx.doi.org/10.1080/02650530903374945 http://dx.doi.org/10.1126/science.1259917 http://www.ncbi.nlm.nih.gov/pubmed/25814584 http://dx.doi.org/10.1016/j.amepre.2014.12.003 http://www.ncbi.nlm.nih.gov/pubmed/25794472 http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Introduction Setting the Scene: Algorithms in Context Predictive Tool Development Statistical Fairness and Social Justice Statistical Fairness and the Sample Frame Issues in Predictive Parity between Racialized Groups—How Should Fairness Be Evaluated with a View to Justice? The Social Production of Data and the Feedback Loop Consistently Biased? Improving the Feedback Loop or Reducing Justice? Implications for Practice: Social Worker Responsibility and Family Participation Human Rights and the Individual—The Right to Reasonable Inference, Consent and Relational Practice Considering the Counter-Argument: Problems in Human Child Protection Decision Making Conclusions References 
work_qbqngrtbqfctjemela2nxijc2u	----	Juvenile Justice in Nigeria1 Abdul-Mumin Sa’ad Department of Sociology and Anthropology University of Maiduguri, Maiduguri Vol. 6 Issue 1, 2008 Abstract One feature of the crime situation in Nigeria is the involvement of juveniles in some criminal and/or dubious activities, which is referred to as juvenile delinquency. In Nigeria the laws define delinquency in terms of the age of those involved rather than in terms of their offences. In Children and Young Person Law, a distinction is made between a person who is yet 14 years and one who is 14 years but not yet above 16 years. The former is a ‘child’ and the latter a ‘young person’ Therefore any offence committed by a person above 16 is a crime not delinquency. Universally, delinquents are immature and therefore incapable of ‘mens rea’ (criminal intent) and ‘actus reus’ (criminal act). To this effect, regulations (laws) pertaining to treatment of delinquents apart from the adult criminals were enacted and documented, thus setting up separate justice system called juvenile justice, which is the focus of this paper. The enactments of these laws were meant to protect the child from the highly technical, cumbersome and harsh adversatorial nature of procedure characteristics of ordinary courts. They were also meant to protect the welfare of the children in the dispensation of justice. Despite the universal proclamation that juvenile delinquents should be rehabilitated and not to be punished, studies have indicated that some juvenile institutions are essentially custodial rather than treatment oriented .This paper therefore critically assessed the pre-trial, trial and post-trial handling of juvenile delinquents in Nigeria vis-à-vis the requirements of juvenile justice at each of the three stages. The paper concludes with series of educated recommendations for the improvement of juvenile justice in Nigeria. Key words: juvenile justice, juvenile delinquency, juvenile court, remand home, approved school, Borstal centre Introduction In Nigeria, crime is generally increasing and it appears that property offences are increasing more than offences against the person (www.cleen.org/crime_ statistics/1994-2003graphics.pdf). One feature of the crime situation in Nigeria is the involvement of juveniles in some criminal and/or dubious activities namely: thefts, burglaries, robberies (even armed robberies), teenage preg- 1Acknowledgement: This paper was first presented at the Conference Session of the Research Committee on Deviant Behaviour (RC 29) during the XVI International Sociological Association (ISA) World Congress of Sociology, 23 – 29 July 2006, Durban, South Africa. I am therefore grateful to both ISA and RC 29 who financed my participation, without which this paper would not have been possible. 71 DOI: 10.36108/NJSA/8002/60(0140) 72 Juvenile Justice In Nigeria nancy and prostitution, alcoholisms and drug abuse, and all sorts of violence are widespread among young persons. These are widespread among juveniles. The definitions of juvenile delinquency vary from one nation to another. Usually, it refers to the offences of the immature persons. In Nigeria the laws define delinquency in terms of the age of those involved rather than in terms of their offences. In Children and Young Person Law (CYPL, 1958), a distinction is made between a person who is yet to attain the age of 14 and one who is 14 years but not yet above 16 years. The former is a ‘child’ and the latter a ‘young person’ Therefore any offence committed by a person above 16 is a crime not delinquency. The CYPL recognizes three categories of juvenile delinquents, namely ‘juvenile offenders’; ‘beyond parental control’, and; ‘wanderers, beg- gars, truants’ and the like. ‘Juvenile offenders’ are those who commit or are apprehended to have committed any act that would be a crime if they were not underage. The ‘beyond parental control’ are those that their parents established that they could not control them and make them of good behaviors. ‘Wan- derers, beggars, truants’ and the like are referred to as those who are in need of care and protection. From the above, one can distinguish delinquency from crime in two major ways. First, delinquency is a more inclusive term than crime, which means that it includes in addition to law violation, some other acts or behaviors like ‘beyond parental control’, ‘wandering’, ‘truancy’, ‘begg- ing’, being exposed to ‘moral danger’, being exposed to the ‘risk of slavery’, and the like. These behaviors and/or acts are essentially not criminal. Secondly, delinquency is different from crime in that the people involved are immature, that is, delinquents unlike criminals, are immature, they are 16 years old or less. Universally, it has been agreed that delinquents are immature and therefore incapable of ‘mens rea’ (criminal intent) and ‘actus reus’ (criminal acts). To this effect, regulations pertaining to treatment of delinquents apart from the adult criminals were enacted and documented, thus setting up separate justice system called juvenile justice, which is the focus of this paper. In Nigeria, the document is short-titled ‘Children and Young Person Laws’, henceforth referred to as CYPL. The four former regions had their respective CYPL. Those of Lagos Colony and Western Region were enacted in 1946. These laws were later adapted for Eastern and Northern regions in 1958. The enactments of these laws were meant to protect the child from the highly technical, cumbersome and harsh adversatorial nature of procedure characteristics of ordinary courts. They were also meant to protect the welfare of the children in the dispensation of justice. Thus, these laws together legislated: 1. Against the trying of juveniles in open adult criminal courts, and made provisions for Juvenile Courts (except that of the North); 2. Against the sentencing of juveniles to prisons, and made provisions for juvenile probation (except that of the North) and Juvenile Institutions, and; The Nigerian Journal of Sociology and Anthropology Vol. 73 73 3. Against the maltreatment and neglect of the juveniles, and made provision that juveniles committed to juvenile institutions must be properly lodged, fed, cared for and instructed. All the above are efforts made by the law to protect juvenile from punishment and, to the contrary, encouraged their rehabilitation even though some of the sections of the law appear punitive. As rightly noted by Philips ‘…these laws are eclectic in their chaotic assembly of retributive and rehabi- litative ideas’ (1980: 7). It is also hard to understand why for example the CYPL of Northern Nigeria did not specifically provide for juvenile courts and probation. However the CRA, 2003, has now provided for both. Despite the universal proclamation that juvenile delinquents should be rehabilitated and not to be punished, even in the developed countries, studies have indicated that some juvenile institutions had been essentially custodial rather than treatment oriented (Sadhu, 1977). Those institutions that were custodial in orientation were found to hold to a moralistic sort of treatment philosophy, while treatment oriented institutions hold to either a social/case work or therapeutic (social-psychological) treatment philosophy. The mora- listic treatment philosophy is founded on the conventional idea of free will. The strong underlying argument is the pleasure-pain principles: “inmates should learn to conform out of the fear of the consequences” (Sadhu, 1977: 234). The social/case work treatment philosophy holds that those who are delinquents lack proper schooling and nurturance in a well organized family and can be re-socialized to become normal. This can be done, for examples, through good vocational and academic programmes in a secure and supportive institution. The therapeutic (social-psychological) treat-ment philosophy holds that, in account of deep-seated deviance (emotional and psychological due to environmental stresses), rehabilitation should take place through extensive changes in character and personality through individual psychotherapy. The objectives of this paper are therefore three, namely: (1) to identify and discuss the existing juvenile institutions central to juvenile justice in Nigeria; (2) to assess the performance of each of the institutions against what is legally defined for them by the relevant International and national statutes, and; (3) to give a well informed recommendations for the improvement of juvenile justice in Nigeria. Juvenile Institutions It has been indicated above that the CYPL have legislated against trying juveniles in adult courts and committing them to prisons with adults. These same laws as earlier indicated have also made provisions for juvenile institutions for the handling of delinquents, including juvenile courts. There are four types of juvenile institutions in Nigeria; namely the Juvenile Courts, Borstal Centres, Approved Schools and Remand Homes. 74 Juvenile Justice In Nigeria Juvenile Courts These courts, as they are called, are meant specifically for handling cases involving children and young persons who need care and protection of the society. One of the major features of these courts is that charges by the prosecutor are not encouraged. Instead, a report is presented to the court by a probation officer and/or a social worker as provided for by the Child Rights Act (CRA, 2003, section 217(6a). The presentation of the report should also not be read aloud, but must provide the substance of the offence or the problem being labeled against the juvenile and the prevailing circumstances surrounding the offence/problem. This is, because juvenile justice does not operate with a criminal procedure in mind. Accordingly, the court does not aim at a “convic- tion” and “sentencing”, but at aiding the child and/or young offender who is assumed to have committed an offence for some psychological and social- environmental factors (CRA, 2003, S.213[2]). Thus, juvenile courts, rather than using law alone, coordinate and utilize the knowledge and skills of law, science and social sciences/work. Unlike in the adult court, spectators are not allowed in juvenile court proceedings. Section 418 of the Criminal Procedure Act (CPA) (Cap 80 Laws of the Federal Republic of Nigeria, 1990) provides that only those relations of the juveniles that are directly involved and such experts as social workers, probation officers and, where applicable, medical practitioners are allowed in the court to present their report. In fact, even parents/guardians can be excluded if the judge feels that the presence of the parents will jeopardize rather than help the case for the juvenile (CPA 1990, S. 426 and CRA, 2003, S. 216(2)). In other words, to avoid harmful influences, the privacy of the juvenile must be respected in juvenile courts proceedings. Article 8(1) of the Beijing Rules, 1985, for example, provides that ‘The juvenile’s rights to privacy shall be respected...’ The article provides further that ‘In principle, no information that may lead to the identification of a juvenile offender shall be published’ (Article 8[2]). Similarly, the African Charter on the Rights and Welfare of the Child (ACRWC, 1990), in its article 17(2) (d), provides that state parties to the Charter shall ‘prohibit the press and the public from trial of juveniles’. One of the major reasons for such privacy in juvenile proceedings is to avoid the stigma involved in conventional justice. In fact, no juvenile is to be finger printed or photographed and special terminologies are created in order to avoid stigmatizing the juveniles. Thus, for examples, the term ‘accused’ are replaced by the terms ‘child’ or ‘juvenile’, ‘arrest’ by ‘under custody’, ‘investigation’ by ‘inquiring’, ‘trial’ by ‘hearing’, ‘conviction’ by ‘committal’, ‘jail’ by ‘deten- tion’, ‘punishment’ by ‘correction’, ‘parole’ by ‘after care’, and so on. The best interest of the child is paramount in hearing of cases in juvenile courts (ACRWC, 1990, Art 17). As such the trial is inquisitorial rather than accusatorial in that the Judge/magistrate and a team of professionals suppose to inquire into cases without necessarily engaging defense lawyers in adversa- torial manner with the prosecution lawyers as it is done in adult court. The defense lawyer is in the Juvenile court for the purpose of helping the court with The Nigerian Journal of Sociology and Anthropology Vol. 75 75 information on the side of the law because, according to Art 17 of the ACRWC, 1990, the aim of treatment of every child during trial and also if found guilty of infringing the penal law shall be his or her reformation, reintegration into his or her family and social rehabilitation. Also in line with the inquisitorial process, it is the judge or magistrate and the other non-legal professionals at the hearing, not the prosecution that will adjourn the case where the necessary information is not available or is available but inadequate (CRA, 2003, S. 217(7). In either case the judge/magistrate has the power to adjourn and order for social inquiry report (CRA, 2003, S. 219). In short, the hearing of cases in juvenile court is informal without a jury – hearing suppose to take place in a relaxed interaction between the child, parents, the judge and other professionals. Hearing in juvenile cases should begin, according to the CRA, 2003, S. 217, with the explanation of the substance of the alleged offence to the juvenile and asking the juvenile whether or not the juvenile admits the allegation. The section provides further that if the juvenile does not admit, the court proceeds and hears the evidence of the witnesses in support of the charge. At the end of the evidence, the court asks the juvenile and/or the juvenile parents whether they wish to ask any question or make a statement. The juvenile and/or the juvenile’s parents/guardians will be allowed to either ask questions or make statements if they wish to. Whatever the case, the court is obliged to ask wit- nesses such questions as appear necessary. It may also ask the juvenile and/or the juvenile parents/guardians such questions as appear necessary to explain anything in their statements. Having satisfied that a prima facie case has been established, the CRA, 2003, S. 217 further requires the court to proceed to hear the witnesses for the defense. The juvenile is also allowed to give evidence or make any statement in the juvenile defense. If the court is satisfied that the offence has been proved or if the juvenile eventually admits the offence, the court asks the juvenile and/or the juvenile parents/guardian if they wish to say anything in mitigation of the charges or otherwise. The court, having been satisfied beyond any reasonable doubts that the juvenile has committed the offence, moves on to decide on the disposition measure. The CPA (1990), in its section 427 has provided quite a variety of disposition measures for the court to apply depending on the needs of the individual juvenile that appear before them, viz.: 1. Discharging the offender and ordering the juvenile to be of good character on the juvenile entering into recognizance to be of good character; 2. Discharging the offender and placing the juvenile under probation order; 3. Discharging the offender and placing the juvenile under the care of a relative or other fit person; 4. Committing the juvenile to any of the juvenile custodial institutions, which are described later in this paper; 5. Ordering the juvenile to be imprisoned where the offender is a young person; 76 Juvenile Justice In Nigeria 6. Ordering the offender to be canned; 7. Ordering the offender to pay a fine, damages, or costs; 8. Ordering the parent or guardian of the offender to pay a fine, damages, or costs; 9. Ordering the parent or guardian of the offender to give security for the juvenile good behavior; and, 10. Dealing with the case in any other manner in which it may be legally dealt with. As shown above, imprisonment is allowed only in the case of young person if none of the alternative disposition measures can be suitably applied. Even in such a case, the young person shall not be allowed to associate with adult prisoners (CRC, 1991, Art. 40). Again, a sentence of death shall not be pronounced or recorded against any child or young person (CRA, 2003, S.221 (1)). Finally, under no circumstances should a child or young person be convicted into a prison or committed into any of the juvenile detention centers with the aim of punishing the juvenile with hard labour, isolation, and/or cor- poral punishment of any kind (CRA, 2003, S.221 (1)). Corporal punishment indicated above is a disposition measure in itself, not a measure to accompany any of the other dispositions. To aid the court on how to deal with the juvenile that has been found guilty of an offence, the court must obtain such information as to the juvenile general character, home background, school records, medical history and all other relevant reports (CRA, 2003, section 217(6a). The court may, for the purpose of obtaining such information and other relevant report, from time to time, release the child on bail (CRA, 2003, S. 217(7)) or place the juvenile on remand (CRA, 2003, S. 218) pending the provision of the information (CPA, 1990, S. 423). Having obtained the information and all relevant reports, the CRA, 2003, requires the court to inform both the child and the parent/guardian (if present) of the substance of any part bearing on the juvenile’s and/or the juvenile parents’/guardians’ character and conduct which it considers germane to the manner in which the juvenile should be dealt with. The parent/guardian and the juvenile have the rights to produce evidence to challenge the report. Similarly, having decided on the disposition measure, the court shall inform both the child and the juvenile parent/guardian (if present) what disposition measures it proposes for the juvenile, and the parents/guardians are entitled to make representation. To conclude this section, it is worth emphasizing that juvenile courts action, unlike the adult court, is supposed to always aim at providing the child/juvenile with about the same care and protection that the juvenile should be given by the juvenile parents under the doctrine of ‘paren patrae’ (the natural responsibility of parents to take care of their child). Accordingly, Juvenile court judge should have special training on child development and must be acquainted with contemporary social problems especially as they The Nigerian Journal of Sociology and Anthropology Vol. 77 77 affect children and young persons. The judge must also be morally upright, emotionally stable with high integrity, patience and willingness to learn new ways of protecting children and young persons from delinquencies, and should be of a matured age of at least 30 years and must have a family. Borstal Centre This juvenile institution derives its name from the village called Borstal, just outside Rochester where it was first set up in Britain (Wills, 1962). When introduced in Nigeria, it retained its name. Borstals are fewer than both Approved Schools and Remand Homes in Nigeria. For example, in the whole country, there are only two, one in Lagos in the south and the other in Kaduna in the north. Borstal institutions are meant for only the young persons. According to Milner (1972), there are two functions of Borstal institutions in Nigeria. First function is the encouragement of a personal relationship between the Borstal Staff and inmates through which the inmates will be given ‘progressive trust demanding personal decision, responsibility and self- control’, and secondly; the placement of emphasis on regular educational and vocational training regiment with a demanding physical training content. Juvenile delinquents can be committed to this school for a period as along as two years and above, and two years follow-up after release programme. Approved School This institution sprang from the early 19th Century schools of industry in Britain, chiefly directed to the suppression of child begging (Ferguson, 1952). When it was introduced into Nigeria in 1932 it bore the same name: ‘Industrial School’. Subsequently, the name changed to the present name: ‘Approved School’. The Enugu Industrial School could be said to be the basis of the approved School system in Nigeria (Milner, 1972). Approved School unlike Borstal, is a place where children, not young persons, are committed for vocational and educational training with no or less emphasis on physical training. Juvenile delinquents can be committed to this school for a period as along as three (3) years and above, and two (2) years follow-up after release programme. The institution is expected to be in some ways not just a school but also a substitute home. Remand Home This institution is a recent development in Nigeria compared to Borstal and Approved Schools. Though most recent, Remand Homes are found to be most numerous by a nationwide study conducted by the Nigerian Institute for Advanced Legal Studies (NIALS, 1990), Lagos. While every state of the federation has at least a Remand Home, not every state has an Approved School. And only Kaduna and Lagos States have a Borstal Institution, which is meant for the whole country (NIALS, 1990). Remand Homes in Nigeria are meant for the following: 78 Juvenile Justice In Nigeria 1. The detention of juveniles on trial for the purpose of “conducting a special scrutiny of the juvenile with a view to obtaining information about the juvenile, which may assist the court in disposing of the juvenile case” (Milner, 1972: 357). 2. Custody of endangered children; and, 3. Committal of juveniles for short sentences (a maximum of six months), although the Minister can extend the mandate (CYPL, 1958: SS. 4, 7, 9 & 26). Of all the above purposes of Remand Homes, the first function is the only purpose of Remand Homes in developed countries where the concept of Remand Home was borrowed by Nigeria. In other words, the second and third should not be part of the purposes of Remand Home. Unfortunately, the third function seems to be the preoccupation of the Remand Homes in Nigeria. In other words, they are also being used as Approved or Borstal Institutions. In fact, Remand Homes are being used as substitute for Approved Schools where the latter do not exist since Remand Homes are most numerous in the country as indicated earlier on. While the primary function of Remand Home (that of detention of juveniles on trial) has been relegated to the background, detaining juveniles in police cell and prison remand has been prevalent. The nationwide study by the Nigerian Institute of Advanced Legal Studies, Lagos, found that 84.1% of juveniles in custody of the police were not released on bail after arrest, and nearly 75% of 203 cases that went to court were not released on bail by the courts (NIALS, 1990). In fact, the young persons among them were sent to prison remand, and contrary to the law, 60% of them were not kept separate from adults (NIALS, 1990). Institutional Handing of Juveniles The juvenile institutions including the juvenile courts are supposed to be treatment oriented rather than punishment oriented. This philosophy is better said than followed in the Nigerian Juvenile Justice System. Juvenile Courts As earlier discussed, the preoccupation of the juvenile courts should be identifying the problems of the juveniles brought before them for the purpose of deciding how best to solve their problems. Unless it is very necessary, juveniles should not be sent into even any of the juvenile detention centers such as Approved Schools, Borstal centers and Remand homes, much less into the prisons. Emphasis should be placed on binding orders, committal to the care of fit persons and probation orders. Regrettably, this is not the case for most juvenile cases handled by the juvenile courts. In fact, in most states of the federation, there are not buildings and staff designated specifically as juvenile The Nigerian Journal of Sociology and Anthropology Vol. 79 79 courts. In the north, the CYPL does not even provide for juvenile courts. Thus, conventional court buildings and staff are used as juvenile courts. This is a serious omission. Added to this problem is the virtual absence of trained probation officers and very inadequate number of trained social workers in all the states of the federation. Consequently, all those niceties that are supposed to be observed in juvenile courts hearings are hardly observed. Professional information that is required to guide the judge in a juvenile court is hardly provided, and measures alternatives to custodial measures are hardly utilized. The NIALS study showed that, in the opinion of 50% of judicial officers and 30% of social welfare officers, custodial measures are the most frequently used disposition measure (NIALS, 1990). This brings us to the juvenile detention issue. Juvenile Detention Centres To be meaningfully treatment oriented rather than punishment oriented, juvenile detention centers are supposed to be conducive and well equipped to provide treatment/rehabilitation for the juveniles. Thus, whether these insti- tutions are rehabilitative or merely custodial will depend on the prevailing con- ditions in the institutions. And these can fully be understood through answers to the following questions: Are the facilities adequate for rehabilitation? Are activities carried out in the institutions relevant and adequate for rehabilitation? Are the prevailing social relations within the institutions supportive of re- habilitation? This section seeks to answer these broad questions. The importance of adequate facilities, adequate relevant activities, and supportive social relations are recognized by CYPL, 1958. For example, section 19(b) provides that it is the responsibilities of an Approved School and of persons to whom a juvenile is sent under mandate for seeing that the juvenile is properly lodged, fed and cared for and instructed. Unfortunately, juveniles in Nigeria are neither lodged properly nor fed properly. Neither were they properly cared for nor instructed. With regard to lodging, the prevailing situation in juvenile institutions is that of congestion not due to too many numbers of inmates as such, but due to inadequate number of rooms and/or room space. Similarly, facilities such as beds, beddings are usually inadequate; hence inmates are forced to share beds and beddings. Mattresses are uncommon site in most of these institutions. A number of institutions do not even have enough number of beds; hence some inmates sleep on the floor. As for care and instructions, the juveniles are seriously maltreated and uncared for, and above all not instructed. Majority of inmates do not take their bath regularly much less washing their clothes and beddings. And when they wash, it is usually done without any detergent. And, there are hardly any relevant and adequate vocational and educational trainings taking place in most institutions, much less recreational activities. The most regular activities the inmates are involved in are the kind that amount to unreasonable and excessive use of their labor services, which is outlawed by section 31(b) of the CYPL. 80 Juvenile Justice In Nigeria Given the above, one wonders what the difference is between the prevailing institutional condition in Nigeria’s juvenile institutions and those in prisons. In fact, devoid of all vital facilities, constructive activities and pro- grammes as well as good social relations, the conditions of juvenile institutions are clearly, as rightly concluded by Sutherland and Cressey (1978: 529) some decades back, worst than the prisons. This brings us to the second issue of relevance, that is, the extent to which the Juvenile Institutions are custodial or treatment oriented. Three institutional models are usually recognized. These are obedient and conformity model, re-education and development model and, finally, the therapeutic and treatment model. The first model has been classified as the most custodial, while the third one as the most treatment oriented. While the first and second models entertain moralistic and social work treatment philosophy respectively, the third entertains the social psychological treatment philosophy. It appears that Juvenile Institutions in Nigeria are obedient/ conformity institutions and therefore custodial rather than treatment/reha- bilitative institutions. Several reasons justified this conclusion. First, Custodial staff members dominate Nigeria’s juvenile institutions. In fact, in Remand Homes they are virtually the only staff in the institution. Secondly, staff members perceived staff-inmate understanding as difficult, hence they emphasize discipline and they sought to achieve it by coercive methods. Thirdly, the way inmates spend their daily routine is monotonous without vocational, educational and recreational activities. Finally, despite the truism that ‘creating more decision-making among residents improves moral and reduces the oppressiveness of an institutional setting’ decisions were made about inmates without any consultations with them. In short, the strategy to change the juveniles in juvenile institutions, like in any obedient and conformity (custodial) institutions, demands compliance and submission. The inmates learn to conform out of the fear of the consequences. Overall then, the juvenile institutions in Nigeria have deviated from the essential provisions of CYPL that sought to provide a secure and supportive environment for sound rehabilitative purposes. Conclusions and Recommendations Undoubtedly, a number of things are wrong with the juvenile justice system in Nigeria, ranging from the CYPL itself to the juvenile courts and the institutions that are meant to rehabilitate the delinquents. A number of recommendations become pertinent at this juncture: There is the need to review to the CYPL once again to adequately take into cognizance the Child Rights Act (CRA), 2003, in all its provisions. Skillful, knowledgeable and qualified staff such as social workers, teachers, psychologists, psychiatrists and judges/magistrates, who understand that juveniles need treatment/rehabilitation and not punishment, should dominate our juvenile institutions. These staff should be able to sieve and apply from the CYPL and other relevant laws, only those provisions that are The Nigerian Journal of Sociology and Anthropology Vol. 81 81 appropriate to the treatment/rehabilitation of inmates, unlike now where the reverse is the case. The laws of course need overhauling as earlier recommended. The quantity and essentially the quality of inmates’ food should be improved. Inmates should eat to their satisfaction, as this will make them feel at home and ready to change positively. The fact that inmates are underage alone is enough pointers to the need for an adequate and good quality diet with all the necessary ingredients (fats, protein, and vitamins) to foster their physical and intellectual development to a healthy adult life without mental or physical deficiencies. For our juvenile institutions to be a substitute to home as it is intended, the need for a spacious accommodation cannot be overemphasized. Each inmate should have a bed, well dressed with mattresses and beddings. Such accommo- dation should also be mosquitoes free. The staff should not be concerned with only the neatness of the surrounding but should also make sure that each inmate baths at least twice daily, their beddings are properly washed each week, and their clothes are washed after wearing it just twice or thrice. One very important stigmatizing element in custodial institutions is the wearing of institutional clothes, that is, the uniform. It is only appropriate therefore that the inmates be allowed to wear their personal clothes sewn for them by their parents. Where the parents cannot afford, the institutions should provide the clothing in consultations with the juvenile parents and the juvenile themselves. Juvenile Institutions are supposed to be like a family set up, and in a family, we do not have to wear uniforms all the time. Vocational, educational and recreational activities should be the pre- occupations of the juvenile institutions. These should replace the manual activities and monotonous life in the institutions. Educational programmes should be able to at least create positive attitude to learning and replace a pattern of failure with a sense of achievement. Vocational activities should also provide a chance for staff-inmates relationship in which a positive view of authority is developed. Recreational activities should also offer opportunities for relaxation and creative past time. Corporal punishments where they are used as a control device should stop. Instead, positive reinforcement (reward in forms of privileges and material gifts) should be utilized. Corporal punishment only engenders hostility be- tween the juvenile and the administrating agents in the institutions. The ‘iron wall’ that is built between the juveniles and the community, where they are supposed to return to at the end, is very inappropriate. More damaging is the total loss of contact with parents, guardians and other relatives. So, efforts should be made to see that inmates see their parents or guardians and other relatives at least twice a month, if not each week. After all, as Article 17(3) of the ACRWC urges, ‘the essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be its reformation, re-integration into its family and social rehabilitation’. 82 Juvenile Justice In Nigeria Lastly, but not the least, a full juvenile justice system should be established so that Remand Homes can assume its proper/primary functions, which is a place where juveniles await hearings. As at now, because Remand Homes are the most numerous in each state of the federation, they serve as substitutes to Approved schools and Borstal Centres. In other words, more approved schools, Borstal centers and juvenile courts should be established. The federal govern- ment should make it mandatory for every state of the nation to have at least a juvenile court in every local government head quarters, one Borstal School in every state capital and an approved school in every senatorial zone of the state. Community based facilities like probation, foster homes and after care services should also be established. A prerequisite to the establishment of all these is the recruitment of adequate and qualified staff that should diligently and care- fully select and execute only the useful educational, vocational and recreational activities and approaches. It is also important that intensive efforts is put to enlighten the public about the positive functions of each of these facilities, especially that of the juvenile custodial institutions so as to ensure their cooperation. References African Charter on the Rights and Welfare of the Child, 1990. Child Rights Act (No. 26 Laws of Federal Republic of Nigeria, 2003. Children and Young Persons Law (CYPL), Eastern Nigeria, 1946. Children and Young Persons Law (CYPL), Northern Nigeria, 1958. Children and Young Persons Law (CYPL), Western Nigeria, 1946. Criminal Procedure Act (Cap 80 Laws of the Federal Republic of Nigeria, 1990. Ferguson, T. 1952. The Young Delinquent in his Social Setting, London: Oxford University Press. Milner, Alan. 1972. The Nigerian Penal System, London: Sweet and Maxwell. Nigerian Institute of Advanced Legal Studies, Lagos. 1990. The Administration of Criminal Justice in Nigeria, NIALS, Lagos, Nigeria. Philips, T. Ahire. 1980. ‘Juvenile Justice and Correction in Nigeria’, Paper presented at the International Conference on Crime and Crime Control in Developing Countries, University Conference Centre, Ibadan, Nigeria, July 9-12 1980. Sadhu, S. Harjit. 1977. Juvenile Delinquency: Causes, Control and Prevention, New York: McGraw-Hill. Sutherland, E.H. & D.R. Cressey. 1978. Criminology, Tenth Ed., New York: J.B. Lippincott Co. United Nations. 1991. United Nation Convention for the Rights of the Child, 1991, NY: UN. The Nigerian Journal of Sociology and Anthropology Vol. 83 83 United Nations. 1985. Standard Minimum Rules for the Administration of Juvenile Justice, (Beijing Rules), 1985. Wills, W. David 1962. Common Sense about Young Offenders, Vol. II, London: Victor Galancz. www.cleen.org/crime statistics/1994-2003graphics.pdf 
work_qcpjdzjvybamjgrlm5q7qwjidm	----	! "#$% %&$%# Citation: 19 Can. J. L. & Jurisprudence 319 2006 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Mar 16 12:16:56 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0841-8209 The Boundary of Justice and the Justice of Boundaries: Defending Global Egalitarianism Kok-Chor Tan I. Introduction One powerful and common strategy in defense of global egalitarianism is to show how and why the accepted arguments for distributive equality within a single state apply globally as well, that is, why the reasons for caring about inequalities between fellow citizens are reasons also for caring about inequality between persons in the world as a whole. For instance, taking (what they take to be) Rawls's central argu- ment for domestic distributive justice, namely, that individuals should not be dis- advantaged on account of arbitrary factors such as their social class, natural endowment, and misfortune, global egalitarians such as Charles Beitz and Thomas Pogge have argued that neither should individuals be at a disadvantage due to an accidental fact like their country of birth. So if distributive justice is motivated by the need to mitigate the effects of contingencies that are "arbitrary from a moral point of view"2 on people's life chances, this presents a consideration also for global distributive equality. The case for global egalitarianism, however, has been challenged by those whom we may call anti-global egalitarians. These critics (at least those I will be focusing on) are not anti-egalitarians through and through. They are egalitarians in that they accept that distributive equality matters domestically. What they reject is the claim that distributive equality has a global scope or universal applicability. Such critics include Walzer, D. Miller, R. Miller, Nagel, Freeman, and Rawls.3 And An earlier version of this paper was presented at The Department of Philosophy, The University of Pennsylvania and I am grateful to members of the audience for their good questions and criticisms. Thanks particularly to Karen Detlefsen and Susan Meyer for their helpful questions, and to Greg Hall, Matt Lister and David Reidy for their written critical comments. Most of all, thanks to Samuel Freeman for the numerous insightful and critical discussions on the subject, and for sharing his own forthcoming papers on this topic with me. 1. Charles R. Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979) at Part Ill; Thomas W Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989) at Part III. See also Allen Buchanan, Justice, Legitimacy, and Self- Determination (Oxford: Oxford University Press, 2004) at ch. 4; Simon Caney, Justice Beyond Borders (Oxford: Oxford University Press, 2005) and Darrel Moellendorf, Cosmopolitan Justice (Boulder, CO: Westview Press, 2002). In contrast, in his Global Justice: defending cosmopoli- tanism (Oxford: Oxford University Press, 1999), Charles Jones is concerned not so much with global egalitarianism as with "the specific problem of poverty" (5). Similarly Thomas W Pogge's more recent World Poverty and Human Rights (Cambridge: Polity, 2002) is primarily concerned with the problem of global poverty. 2. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 15. 3. Richard W. Miller, "Cosmopolitan Respect and Patriotic Concern," (1998) 27/3 Phil. & Pub. Affairs 202; David Miller, "Against Global Egalitarianism" (2005) 9/1-2 J. Ethics 55; Michael Walzer, "Response" in David Miller & Michael Walzer, eds., Pluralism, Justice, and Equality (Oxford University Press, 1995); Thomas Nagel, "The Problem of Global Justice" (2005) 33/2 Canadian Journal of Law and Jurisprudence Vol. XIX, No.2 (July 2006) it is important to note that anti-global egalitarians need not reject the duty of human- itarian assistance or the duty of rescue. In fact the anti-global egalitarians that I will refer to accept that there are duties of assistance towards persons who are unable to meet basic needs. They will denounce the current global economic arrangement as unacceptable because many people continue to be deprived of basic and urgent needs under this arrangement. Their position, however, is non-egalitarian in that while it holds that there is a moral duty to assist individuals or peoples to help them achieve minimally decent standards of living, economic inequalities between coun- tries as such are not matters of justice. To be sure, one could plausibly make the case that if inequalities between countries become excessive, those at the bottom end will be in effect deprived of basic needs given the operations of the marketplace. In this case, anti-global egalitarians will be concerned about the gross inequalities, not because these inequalities themselves are objectionable from the point of view ofjustice, but rather because they have the effect of impoverishing persons, abso- lutely as opposed to just making them relatively worse-off. So anti-global egali- tarians can in principle be concerned about global inequality, but this concern is derivative of the deeper commitment to protecting persons' access to basic needs rather than as a direct concern.4 Thus, it is still open to this position that substantial inequalities between countries be condoned when these inequalities do not in fact force anyone below some defined subsistence threshold. For example, we can imag- ine, say, a global arrangement in which the economic inequalities between countries exceed the limit permitted by (a globalized) Rawls's difference principle (and so would exercise Rawlsian global egalitarians like Beitz and Pogge) that is nonetheless unproblematic for the anti-global egalitarians because no one is forced below the basic minimum in spite of the inequality. In short, the difference between global egalitarians and anti-global egalitarians (who however remain committed to human- itarian assistance) is that the former supports a distributive principle for the purpose of regulating and limiting economic inequalities globally, whereas the latter is con- cerned only with ensuring that basic humanitarian needs of all persons are met. So a significant practical and philosophical difference remains to be addressed: must global justice include an egalitarian distributive commitment? I will consider two classes of arguments often deployed by the anti-global egal- itarians against attempts to universalize the demands of distributive equality. The first class of arguments tries to show that global egalitarians have misconstrued the reasons why equality matters domestically, and hence have illegitimately extended these reasons to the global arena. That is, the reasons why inequality mat- ters domestically, some anti-global egalitarians say, are reasons that gain traction Phil. & Pub. Affairs 113; John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), esp. Part III; and Samuel Freeman, Justice and the Social Contract: Essays on Rawls (New York: Oxford University Press) [forthcoming] at chs. 8 and 9, and "The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice" (2006) 23/1 Soc. Phil. & Policy 29. See also Michael Blake, "Distributive Justice, State Coercion and Autonomy" (2001) 30/3 Phil. & Pub. Affairs 257; David Reidy, "A Just Global Economy: In Defense of Rawls" J. Ethics [forthcoming], and Joseph Heath, "Rawls on Global Distributive Justice: A Defense" Can. J. Phil. [forthcoming]. 4. See, e.g., David Miller, "Against Global Egalitarianism", supra note 3. The Boundary of Justice and the Justice of Boundaries only in the context of the political society. This class of arguments thus makes a conceptual point about the scope or boundary of egalitarian distributive justice, namely, that the boundary of distributive equality is inherently limited by the bound- aries of states. Call this the thesis of the limited boundary of distributive justice or the "limited thesis" for short. The second class of arguments does not directly question the conceptual bound- ary of egalitarian distributive justice. Rather it provides a limiting argument of a different kind. Instead of directly rejecting egalitarianism as principle with a global scope, it proposes that there are competing principles that in effect outweigh the demands of global equality.' In particular, this class of arguments tries to show that the claims ofjustice that citizens have against each other do and should limit the application of any global egalitarian principle. That is, the principle of special con- cern imposes demands on persons that limit what global equality can in fact demand of them. Because this line of argument holds that there is something significant about membership in a state, let me call this the thesis of the ethical significance of state boundaries, or the "significance of boundaries" thesis for short. I will reflect on these two sets of arguments in turn. But these two arguments are related in an important way. An important implication of this two-stage exam- ination of the boundary of distributive justice and the justice of political boundaries is that the boundary of distributive justice cannot be co-extensive with social or political boundaries (as claimed by the limited thesis) when the justice of boundaries is in question. II. The Boundary of Distributive Justice As mentioned, some anti-global egalitarians deny that the reasons in defense of distributive equality in the domestic context extend to the global context. Global egalitarians, they argue, fail to see that these egalitarian considerations gain a "foothold" only in the domestic context because of some special features of domes- tic political society that are absent in the global setting.6 These unique features of the political society are what generate the distributive commitment within the soci- ety. On this view, distributive egalitarian duties do not have universal scope; rather they are duties that arise only between members of a political society. What is distinctive about the political society such that distributive egalitarian considerations arise within its boundaries but not without? A recent line of argument in defense of the limited thesis focuses on the lawful coercive authority of the state (e.g., R. Miller; Blake; Nagel). On this view, it is the presence of lawful state coer- cion that motivates a distributive egalitarian commitment among citizens of the 5. As Dworkin notes, one need not deny the validity of a principle when one takes it to be out- weighed by other considerations or principles in particular instances. Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at ch. 2. So an anti-global egalitarian may oppose the universal application of egalitarian justice without denying the universal scope of a distributive principle, but (more modestly) by showing how other principled considerations can outweigh the principle of global equality and hence limit its application. 6. Nagel, "The Problem of Global Justice," supra note 3 at 128. state. And because there is no coercive lawful authority in the global arena, there is no grounding for any global distributive egalitarian commitment. It is important to clarify the real thrust of the argument so as to not misunderstand and underestimate its force. The argument is not claiming that there can be no dis- tributive commitments in the global arena because of the absence of an enforcement authority. If this were so, two responses would be immediately available to the global egalitarians. First, the argument so construed is highly controversial as a conceptual point for it takes the concept ofjustice to inherently include the notion of enforce- ability, such that a demand ofjustice that is unenforceable is not a demand ofjustice properly speaking. This understanding of the argument may find some grounding on Hobbes's remark that "covenants, without the sword, are but words". The Hobbesian may thus be tempted to think that justice has to be enforceable if it is to be a meaningful concept; and because there is no global authority or government to enforce the terms of distributive justice in the global arena, distributive justice or injus- tice "have there no place" (borrowing Hobbes' phrase). Thus the boundary of dis- tributive justice is necessarily limited to the boundaries of states for it is only within the boundaries of states that the demands ofjustice are effectively enforceable. For a label, we can call this the Hobbesian interpretation of the argument from coercion.7 Yet, as should be obvious, this coupling ofjustice with its enforceability is far from a widely held view of the concept of justice. After all, we can make sense of what justice demands even in situations where we know (regrettably) that we are unable to impose or enforce its demands. We can, for instance, embrace the United Nation's aspiration that developed countries contribute 0.7% of their GDP to development assistance (though of course this is not an egalitarian commitment but a commitment to end absolute deprivations) as a requirement ofjustice, while recognizing that most countries have failed to meet this requirement and so have failed in their duty ofjustice.8 The enforceability ofjustice and the demands ofjus- tice refer to two distinct stages in the fulfillment of justice. The first identifies its content and demands; the second speaks to its compliance and realization. To be sure, if global distributive demands cannot in fact be enforced without a global state, this would not bode well for the global egalitarian aspiration. So, if this is right, global egalitarians may have to rethink the reality of their goal given the untenability and undesirability of a world state. But this concern relies on another Hobbesian premise, an empirical one this time, that is also contestable. It relies on the Hobbesian view of international relations that there can be no enforcement of justice globally because of the absence of a global political sovereign. But, and this is the second response of the global egalitarian against the Hobbesian interpretation of the coercion argument, the claim that there are 7. Hobbes's own views on international justice are arguably more complex and so I intend this lit- erally as a Hobbesian view rather than Hobbes's own view on the matter. For one discussion on Hobbes and international law and justice that runs against the traditional view of Hobbes as an international amoralist, see Larry May, "Jus Cogens Norms" in his Crimes Against Humanity (Cambridge: Cambridge University Press, 2005). 8. Indeed, anti-global egalitarians will lament this actual failing on the part of rich countries, given that the goal here is that of poverty reduction. But they can do this only if they accept the dis- tinction between what justice demands and how justice can be affected. The Boundary of Justice and the Justice of Boundaries no effective means of enforcing distributive commitments globally absent a world state is empirically weak. International law is sometimes derided as toothless because there is no global sovereign to execute its orders. But this caricature of international law fails to see how the system of international law, along with a host of other international institutions (including organs like the World Court, etc.) can set expectations and motivate conformity with these expectations. To use the catchphrase, there is global governance even in the absence of global government. The enforcement of global justice need not be perfect, but to say that there is no enforcement at all without a world sovereign yielding the sword is an exaggeration.' Indeed, and closer to my purpose, none of the anti-global egalitarians I will be discussing endorse the Hobbesian view of a lawless international order. For instance, Rawls himself believes that global institutional means of enforcing the principles of his Law of Peoples are available. He thinks that global institutions "such as the United Nations ideally conceived"'" can have the authority and capacity to express and enforce the principles of the Law of Peoples, and to regulate the conduct of peoples. Thus, the feasibility of establishing new or improving global institutions for implementing and regulating conduct in accordance with principles of global justice is not ruled out by Rawls. Rawls's reason for denying a global distributive principle is not that there are no institutional means of lawful international enforce- ment, but because of his understanding of the basis and philosophical motivation of egalitarian justice. The Hobbesian interpretation of the argument from lawful coercion rests on premises about the concept of justice and basic facts about the international order that Rawls himself will find unacceptable." The argument from coercion, more powerfully then, is not to be seen as an argu- ment about the (lack of) enforceability of distributive justice (in the global context), but as an argument about the inconceivability of distributive justice (in the global setting). The idea here is that outside the context of a lawful coercive authority, considerations of distributive equality do not even arise. The problem is not that the international domain is one in which distributive commitments cannot be enforced (and hence inappropriate to talk about distributive justice here); the prob- lem, rather, is that distributive justice concerns do not even take hold in the inter- national domain. Considerations of distributive egalitarian justice are relevant only under conditions in which persons share a coercive legal order. The issue, in short, is how distributive justice is to be conceived not how it is to be enforced. What is it about lawful coercion that it is said to present a necessary condition for generating distributive commitments among agents? One line of argument invokes the ideal of reciprocity to ground the claim. Thus, to pave the way for the 9. For some discussion on international law as "public", and hence not entirely subject to the political interests of state agents, see Benedict Kingsbury, "The Problem of the Public in Public International Law" in NOMOS: XLIX. Moral Universalism and Pluralism (New York: New York University Press) [forthcoming]; and Anne Marie Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004). For criticism of the Hobbesian world view, see Beitz's classic treatment in Part I, supra note 1. 10. The Law of People, supra note 3 at 36; also at 70. 11. See Rawls's rejection of political realism in Part I of The Law of Peoples, supra note 3. coercion argument, let me make some preliminary remarks about reciprocity and distributive egalitarianism, and its implications for global distributive justice. It is implicit in the idea of a society understood as a fair system of social coop- eration, in which citizens are considered as free and equal, that the basic social and political institutions of society must be those that citizens themselves can reasonably accept. That is, citizens must be able to justify to one another the social arrangement that they are helping to impose on each other. This requirement that citizens justify their common political and social order to each other describes the criterion of reciprocity. As Rawls puts it, the criterion of reciprocity holds that "when terms are proposed as the most reasonable terms of fair cooperation, those proposing them must think it at least reasonable for others to accept them, as free and equal citizens, not as dominated or manipulated or under pressure caused by an inferior political or social position."'" For many liberal egalitarians, including Rawls, it is this criterion of reciprocity that ultimately grounds a distributive commitment in a democratic society. As Rawls writes in Justice as Fairness, "taking equal division as the bench- mark [as is appropriate if we regard citizens as free and equal persons], those who gain more are to do so on terms acceptable to those who gain less, and in particular those who gain the least." 3 The difference principle, Rawls writes, is construed to meet the "reciprocity condition: those who are better off ... are not better off to the detriment of those who are worse off," but in fact are better of only when the least well off also benefits. 4 Accordingly, a society that allows great inequalities to exist between rich and poor would be one whose social and economic order could be reasonably rejected by some (for example by the worst-off). Those disadvantaged by the arrangement can reasonably feel that their interests are not being adequately taken account of if the institutions of society are structured such that those already more fortunate (because of, say, their natural endowment or social class) are permitted to benefit further to the detriment of the unfortunate when there are feasible alternative arrangements under which the disadvantaged can do better. For this reason Rawls rejects what he refers to as a capitalist welfare state in which citizens are guaranteed only a basic minimum but where inequalities between them above the threshold of basic minimum need not be regulated at all. In such a society, the criterion of reciprocity is violated because the least well-off class will see the better-off to be benefiting from an arrangement at their expense.5 Defenders of the limited thesis need not claim that the criterion of reciprocity is of no relevance in the global domain. It seems natural to think, after all, that we don't just owe fellow citizens justification for the institutions that we are imposing on them; we also owe foreigners a justification for any global order that we have a part in helping to impose on them. The idea of reciprocity seems to be a morally basic one such that it applies among persons who are regarded as moral equals and 12. Ibid. at 14. 13. John Rawls, Justice as Fairness: a Restatement, ed. by Erin Kelly (Cambridge, MA: Harvard University Press, 2001) at 123. 14. Ibid. Also at 49, 76-77. 15. Ibid. at 126-30. The Boundary of Justice and the Justice of Boundaries not just between democratic citizens. 6 It is entirely possible, then, that any global arrangement that allows for great inequalities between countries is one that the global worst-off persons could not reasonably accept. Yet for anti-global egalitarians, the ideal of reciprocity generates different eco- nomic justice commitments in the domestic and global arenas. Rawls, for instance, while not denying the criterion of international reciprocity, suggests that that ideal is met in the international domain "once the duty of assistance [between people] is satisfied and all peoples have a working liberal or democratic government". Reciprocity between peoples does not require peoples "to narrow the gap between the average wealth of different peoples."'7 Rawls does not fully explain in The Law of Peoples why the reciprocity criterion generates different requirements domes- tically and globally. He simply stipulates that fair cooperation between peoples does not require any egalitarian distributive commitment among them. To supplement Rawls's argument, one might be tempted to say that reciprocity generates a dis- tributive economic commitment only within a democratic society because of the type of mutuality felt between democratic citizens, and that there is no similar mutu- ality between persons as such. But this cannot, of course, be merely a descriptive claim (to wit, that democratic citizens in fact acknowledge and affirm such a mutual commitment for compatriots, whereas persons of the world as a whole do not). The argument has to be that it would be unreasonable to reject such mutual expectations among democratic citizens (for distributive equality) but that it would not be unrea- sonable to deny a similar expectation in the global setting. But this seems to beg the question for we can't determine whether an expectation is reasonable or unrea- sonable until we have a sense of what it is that persons are entitled to as a matter ofjustice. Thus, the anti-global egalitarian cannot simply dismiss any expectation for distributive equality on the part of the less advantaged of the world as unrea- sonable and use that as a basis for determining what global justice can require. So, it appears that an explanation is still owed by the anti-global egalitarians to show why the ideal of reciprocity generates distributive egalitarian commitments domes- tically but not globally. Some anti-global egalitarians thus emphasize a unique feature of the democratic political society, such that the expression of reciprocity in the domestic arena entails a distributive commitment, namely that citizenship in a political society is mem- bership in a non-voluntary and coercive legal association (e.g., R. Miller; Blake; Nagel). 8 On this argument, it is the expectation that democratic citizens justify to each other the coercive authority of the state, as required by the ideal of reciprocity, that grounds a distributive egalitarian commitment among them. The coercive authority of the state is an authority that each citizen has an equal share in. Democratic reciprocity means that this great power can be imposed on all only on terms that each can accept. This describes the idea of liberal democratic legitimacy-that political power is legitimate only when it is exercised on terms 16. Rawls is explicit that reciprocity is a relevant criterion not only among democratic citizens but also among peoples. See The Law of Peoples, supra note 3 at 35, 57. 17. Ibid. at 114. 18. See also Rawls, Justice as Fairness, supra note 13 at 93-94, 40. that all citizens can reasonably endorse. 9 The argument is that an institutional com- mitment to distributive equality is one necessary way (though, presumably, not suf- ficient) in which the coercive authority of the state can be justified to all and hence made legitimate. That is, if the price of membership in a political society is lawful coercion, the privilege of an institutionalized distributive egalitarian commitment between citizens (among other things) is what legitimizes this coercion in the eyes of members." As Richard Miller writes, it is the need "to provide adequate incen- tives for compatriots to conform to the shared [coercive] institutions that one helps to impose on them" that generates a concern for distributive equality in the domestic sphere." In a similar spirit, Michael Blake writes that "the real purpose of the dif- ference principle is to justify coercion to all those coerced [an inevitable fact of the state], including the least advantaged."22 As an aside, it is worth noting that the fact that membership is considered non- voluntary on this argument is not a rejection of the social contract idea. Social contract accounts need not rely on the voluntary acceptance of one s membership in a society but on the acceptance of the terms of membership in the given society. What indi- viduals are asked to consent to (hypothetically) is not whether they want to be mem- bers of a society; that is usually taken as a given. But precisely because membership is presumed to be fixed, they are entitled to social arrangements that they could not reasonably reject. Indeed, it is the presumption of non-voluntary membership that gives much normative weight to the contract idea that the terms of social cooperation as expressed by the basic institutions of society be acceptable to members. The argument from coercion thus offers one explanation for why the criterion of reciprocity generates distributive egalitarian commitments within democratic states but not beyond the borders of states. Although the reciprocity requirement remains in force in the global domain, there is no coercive global arrangement that needs to be similarly justified to individuals in the world as a whole. Only in the context of lawful coercion does reciprocity ground the commitment to distributive justice for only in this context is there a coercive social arrangement whose legit- imacy needs to be established. 3 19.Ibid. at 40-41. 20. As Paul Guyer lucidly reveals, this relationship between coercion, reciprocity and distributive justice can be found in Kant's political philosophy. See Guyer, "Life, Liberty and Property: Rawls and Kant" in his Kant on Freedom, Law and Happiness (Cambridge: Cambridge University Press: 2000) at 274ff, 285ff. Whether this Kantian account of distributive justice supports the limited thesis, I leave to one side for now. I suspect though, that if, as Guyer argues, the commitment to distributive justice is required if property rights enforcement (necessary for turning the right to property from a mere "provisional right" to a "conclusive" right) is to be reciprocally justifiable to all involved, one can argue that in as far as there are international norms and laws defining and protecting international property rights, then the Kantian account would deny the limited thesis and instead support some global distributive commitment. For Guyer's arguments in this direction, see his "The Possibility of Perpetual Peace" in J.C. Ciprut, ed., Ethics, Politics, and Democracy (Albany, NY: SUNY Press) [forthcoming]. 21. R. Miller, "Cosmopolitan Respect and Patriotic Concern", supra note 3 at 203-04. 22. Blake, "Distributive Justice, State Coercion, and Autonomy", supra note 3 at 283. 23. As a point of textual analysis, it is worth noting that R. Miller's reciprocity argument for dis- tributive justice emphasizes the need to give democratic citizens incentives to accept and comply with the coercive institutions of their society. Blake's argument focuses on personal autonomy, claiming that coercive arrangements can be justified to fellow autonomous agents only if these The Boundary of Justice and the Justice of Boundaries On this argument, then, there is no general direct concern for distributive equality among persons as such. The concern for distributive equality derives from the more fundamental requirement that coercive political arrangement be justified to each citizen on terms that each can accept (if it is to be legitimate), and it is this need to justify the coercive authority of the state to all citizens that grounds this distribu- tive commitment to them. 4 Nagel has accordingly said that distributive duties are "associative duties"; that is, they are duties that arise only among persons who share a certain kind of social or institutional relationship.25 Before examining this attempt to justify the limited boundary thesis, it is worth noting that the argument from coercion owes us some explanation as to why there is no direct concern for equality between persons as such (that is, why distributive equality is not an independent value but derives only from the need to legitimize the state's coercive authority). Why are distributive duties only associative duties, when there are other duties ofjustice among persons that obtain independently of associative ties? (Nagel, after all, accepts duties of'justice having to do with human rights that are independent of special ties.) That is, the argument from coercion attempts to make the case that coercion is a sufficient condition for distributive justice; but this leaves open the possibility that coercion is not a necessary condition, that distributive justice can simply be a natural duty of justice. My point here is not that such an argument (for taking distributive egalitarian duties to be a departure from the default position of inequality) could not be made; my point is that the default position of global equality, absent arguments to the contrary, is just as plau- sible a starting point.26 Be that as it may, granting that distributive egalitarian duties are derivative duties along the lines offered by the argument from coercion, the key question for my pur- pose is whether the argument successfully supports the limited thesis.27 It is not clear that it does. For one, it is arguable that the global order is indeed an involuntary and coercive one that affects profoundly and pervasively the life prospects of many disadvantaged persons in the world, and that this order is sus- tained and imposed on them through the complicity of others, in particular the global well-off. At the extreme end, the current global order deprives many of access arrangements do not permit excessive inequalities between them. But in either case, it is the idea of reciprocity that is fundamental-both are concerned with providing individuals with reasons to accept coercive institutions. Nagel's argument, as we will see in a moment, has again a different focus. Nagel stresses not the fact that citizens are subjects of coercive arrangements but that they are responsible authors of these arrangements and hence have a rightful say in how these arrange- ments ought to be. 24. The argument from coercion is unlike the Hobbesian argument contemplated above. That argu- ment was an argument about the concept of justice. The present argument has to do more with the idea of legitimacy. It is not that without enforcement there can be no justice; it is that to justify and legitimize the coercive enforcement authority of the state, the state (which is collectively supported by every citizen) owes each of its citizens a distributive egalitarian commitment (among other things). 25. Nagel, "The Problem of Global Justice", supra note 3 at 121. 26. Some might say that distributive duties are positive duties and positive duties can only be asso- ciative. But this (controversial) libertarian move is not one that the anti-global egalitarians I am discussing would themselves accept. 27. The next three paragraphs draw on my Justice Without Borders: Cosmopolitanism, Nationalism, and Patriotism (Cambridge: Cambridge University Press, 2004) at 172-77. to basic needs and goods." To be sure, these urgent deprivations are the sorts that the anti-global egalitarians I am discussing can deal with for these are what Blake calls instances of "absolute deprivations" rather than "relative deprivation". That is, the current global order is plainly coercive because many individuals are denied basic subsistence needs under its arrangement, and anti-global egalitarians do not deny that there is a duty of humanity to assist people thus deprived. But the global order is also coercive in ways that the domestic order is said to be coercive, that is, it is coercive in the sense that a certain conformity and com- pliance with a certain socio-political order is expected of persons. As in the domes- tic setting, there is in the global arena a legal order that is binding and enforceable on all, and from whose reach there is no meaningful escape, and which restricts individual life opportunities and personal autonomy. International trade laws, prin- ciples and laws governing territorial and political sovereignty, international norms regulating the conduct of multinational corporations, patent laws and other property laws concerning ownership of resources harvested from international waters, and so on are just some examples of a highly complex international legal system under whose regulation all persons are virtually subjects, and which limits the options and opportunities persons effectively have. And if the legitimacy of coercive social arrangements that limits personal autonomy is what motivates the need for a dis- tributive egalitarian commitment in domestic society, then so too, it seems, must the legitimacy of the global legal order rest on some distributive egalitarian com- mitment. It is important to stress that the international order is not simply coercive but lawfully coercive. The argument from coercion stresses the need to legitimize the legal coercive order of domestic society on those subject to its authority. That is, the relevant coercion that is in need ofjustification (to autonomous persons) is that which is legal and "ongoing. 29 So the analogy between the global and domestic settings is impaired if global coercion is not a lawful and ongoing coercion. But the examples of international coercion cited above pick out instances of lawful and ongoing coercion. The international order is not only coercive but also, as is attributed to the domestic political society, coercive in an institutional and legal way. International coercive actions are not confined to just those actions outside the bounds of international law (as in illegitimate interventions and illegal trading practices that violate, say, WTO rules), but include also actions that are sanctioned, and indeed often required, by international law. International laws and rules reg- ulating the recognition of sovereignty that allow and even require corrupt regimes to be tolerated by powerful countries with economic and political interests in sus- taining these regimes, WTO rules on trade and patent rights, and less obvious ones like norms and laws that recognize the sovereign right of states over any natural resource within its borders, are legal rules that impose themselves in an ongoing basis on individuals, and have the effect of coercing some by significantly limiting their opportunities. 28. See Pogge, World Poverty and Human Rights, supra note 1; also Onora O'Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000). 29. Blake, supra note 3 at 280. The Boundary of Justice and the Justice of Boundaries In addition to the global economic order that is being imposed on and enforced against all countries and their citizens, another example of a clear instance of legal- ized arrangement that can be seen as coercive of the global disadvantaged, and so in whose eyes is illegitimate if there are no corresponding attempts to mitigate the effects of that arrangement, are the immigration laws of individual (especially rich) countries. Immigration laws, enacted domestically (but sanctioned by international law and norms), are clearly legalized restrictions and impositions on non-members, and the effects of these restrictions are most vividly felt by the global disadvantaged. This is especially so in an existing global order in which resources and wealth are so unequally distributed between countries, for the global disadvantaged are legally and forcefully prevented from taking advantage of economic opportunities in better off countries." My purpose here is not to deny the legitimacy of restricting immi- gration as such, but only to identify another way in which our global arrangement is coercive of persons in an ongoing and legal way, and which consequently needs to be justified to those who are affected. Thus extending the domestic argument, the legitimacy of restrictive laws of immigration, laws that are enforced by the state but sanctioned internationally, must be conditional on there being some global dis- tributive commitments. The global disadvantaged who are being deprived of eco- nomic opportunities by laws restricting personal movement will have no reason to consent to and comply with these laws otherwise. These restrictions need not be seen by them as legitimate. In short, if a legal coercive authority must be justified to persons living under it in order for that authority to count as legitimate, either out of respect for their autonomy (Blake) or to give them incentives to comply with the arrangement (R. Miller), it does seem that the current global order upholds such a coercive legal order that must be thus justified. And if the justification of coercive authority requires an institutionalized commitment to distributive egalitarian justice, then it seems too that the justification of the international coercive order requires some global egalitarian distributive commitment. One development of the lawful coercion argument stresses not the general fact of coercive international law as such, but the notion of (coercive) property laws. Distributive principles are appropriate (and indeed necessary from the point of view ofjustice) for the institutions of the domestic society but not for international insti- tutions because the legal institutions of political society cover a complex series of norms and rules governing ownership. Distributive justice is, after all, not simply allocative or redistributive justice. Distributive principles are meant to regulate the background rules and norms of society that determine entitlements, just transac- tions, contract laws, and property rights." It is concerned not just with the expost 30. It is of course true that one's place of birth is a natural fact and not itself a matter of justice. As Rawls has noted, natural facts in themselves that are neither just nor unjust; what is just or unjust is "the way the basic structure of society makes use of these natural differences and permits them to affect the social fortune of citizens, their opportunities in life, and the actual terms of coop- eration between them" (Rawls, "Kantian Constructivism in Moral Theory" in Samuel Freeman, ed., John Rawls: Collected Papers (Cambridge, MA: Harvard University Press, 1999) at 337. The natural fact of a person's geographical place of birth becomes an issue ofjustice because global institutions turn that fact into an actual social disadvantage for the person. 31. Freeman, Justice and the Social Contract, supra note 3. facto allocation of a given bundle of goods and resources after they are produced among persons (that is, it is not concerned simply with the question of what should be taken from whom to give to whom), but is concerned more fundamentally with the conditions ex ante that determine rightful ownership, and this presupposes in place a whole series of laws regulating property rights, transactions, contracts and so on. Put another way, distributive justice is also backward looking in the sense that it looks to the background conditions that fix rightful ownership, whereas allocative justice is solely forward looking in that it aims to redistribute resources within accepted background norms of ownership. We can perhaps speak of a global allocative justice or redistributive justice (and perhaps the 0.7% of GNP contribution to ODA is an example of this), but not global distributive justice, so the argument goes. Thus Samuel Freeman observes that what "makes the incredibly complicated system of legal norms possible that underlie economic production, exchange, and consumption, is a unified political system that specifies these norms and revises them to meet changing conditions." Yet "[n]othing comparable to the basic structure of society exists on the global level."32 Freeman's argument offers an important reminder of the focus of distributive justice, that it is concerned with the background institutions of society that define rightful ownership in the first place and is not concerned with the mere allocation of resources and goods against a taken-for-granted theory of ownership. Yet it seems to me that the claim that there are no analogous background conditions that specify norms of rightful ownership of resources and wealth seems to underplay the exis- tence of a unified system of legal principles and rules that are operational in the global domain. For example, patent laws and other laws about intellectual property, international laws regulating how resources may be harvested from international waters, and more fundamentally, but less obviously for it is just so pervasive and taken for granted, the principle of state territorial sovereignty that assumes state ownership over resources that happen to lie within a country's borders, clearly do establish norms of ownership in a very profound and basic way. And these norms are, of course, not naturally given or inevitable, but are sanctioned and affirmed by international legal principles and practice. These international norms regulating global ownership seem to me to both generate the condition for distributive justice and provide the appropriate subject-matter of distributive principles. Now as a response to the above considerations, one might point out that inter- national property laws, in fact international law as a whole for that matter, are dif- ferent from domestic laws. Freeman writes that "[g]lobal cooperation and global institutions are supervenient upon social cooperation and basic social institutions."33 By this he means, as I understand him, that global norms and laws are fundamentally derived from domestic law in that these are norms and laws legislated by peoples as independent and self-determining cooperative units and put into international effect only through external arrangements (i.e., treaties) with each other. That is, there can be no international law without bounded independent political units capable 32. Ibid., emphasis mine. 33. Ibid. The Boundary of Justice and the Justice of Boundaries of making laws. For this reason, Freeman notes that global institutions are different "qualitatively" from the basic structure of a domestic society. Yet it seems to me that this line of argument conflates the source of international law, on the one side, and the scope and content of international law on the other. Although international laws can have their origin in domestic enactments, this does not mean that they cannot come to have a distinctive scope of application the pur- pose of which is to regulate the international rather than domestic domain. Moreover, that most (if not all) international laws have their origins in the form of treaties between independent nations, does not mean that these laws do not even- tually come to acquire a certain normative independence over time such that their authority comes no longer from the fact of the historical agreement between party countries to specific treaties, but from their general affirmation and acceptance by the international society over time, and can come to generate expectations not just from signatories to the particular treaties but from all lawful members of inter- national society. Current international laws about human rights, prevention of geno- cide and so on have their grounds of enforcement in agreements between signatory countries but nonetheless, through international practice, set lawful standards and expectations for all countries regardless of whether or not they were original sig- natories to these agreements. Indeed, it is hardly plausible that the norms grounding these laws derive their normative force solely from actual agreement between states, even if their legal enforceability and the means thereof are. In any case, there is certainly no opting out with respect to these laws, and hence it is a mischaracter- ization to say that they are only voluntary. The possibility of international laws that can come to have an autonomous authority and force (even though the original authority of these laws are domestic) is what paves the way for a lawful international order, as recognized by Kant. As he writes, "partly by an optimal internal arrange- ment of the civil constitution, and partly by common external agreement and leg- islation, a state of [international] affairs is created which, like a civil commonwealth, can maintain itself automatically."34 That is, even if international law is partly con- stituted by some original agreement between independent sovereign states, it can come, over time through international practice and the generation of mutual expec- tation, to enjoy an independent status and can retain its authority as law indepen- dently of the historical agreements between actors. Thus far, it seems then that if the need to justify a lawful coercive order is that which motivates a distributive egalitarian commitment, that motivation is also avail- able beyond the borders of states in as far as the global order comprises also a lawful and coercive involuntary order. More has to be said as to why the domestic legal order is distinct from the global legal order such that the former generates egalitarian distributive commitments but not the latter. Thomas Nagel has offered what seems to me to be a version of the argument from lawful coercion that side-steps my above response.35 For Nagel, it is not simply 34. Immanuel Kant, "Idea For a Universal History with a Cosmopolitan Purpose" in H.S. Reiss, trans. by and ed., Kant: Political Writings (Cambridge: Cambridge University Press, 1991) at 48, stress in original. 35. I am grateful for David Reidy's critical and helpful comments on the following paragraphs. the fact that citizens are affected by coercive institutions that is morally significant, and the reason for which an explanation for institutionally sanctioned inequalities is owed to them. What is crucial, on Nagel's account, is the fact that citizens are also mutually engaged in the making and maintaining of these coercive arrange- ments. Because laws sustaining our social institutions are also made in our name, and we are responsible for supporting these laws through our actions and decisions, we have a hand in any inequalities admitted by our lawful institutions. Hence we are consequently entitled to ask why we should accept the inequalities generated by these laws. It is this "engagement of the will" in the system of coercion that we jointly sustain that generates a distributive commitment among persons so engaged. He writes: Without being given a choice, we are assigned a role in the collective life of a par- ticular society. The society makes us responsible for its acts, which are taken in our name and on which, in a democracy, we may even have some influence; and it holds us responsible for obeying its laws and conforming to its norms, thereby supporting the institutions through which advantages and disadvantages are created and dis- tributed.Insofar as those institutions admit arbitrary inequalities, we are, even though the responsibility has been simply handed to us, responsible for them, and we therefore have standing to ask why we should accept them. This request for justification has moral weight even if we have in practice no choice but to live under the existing regime. The reason is that its requirements claim our active cooperation, and this can- not be legitimately done without justification-otherwise it is pure coercion.36 In short, some justification is owed to me (as a member of a political society) for any inequalities that the lawful order of my society permits because I am also a law-making member of society. I am entitled to this justification because I am not simply a subject of the law but a rightful author of the law. It is my capacity as one of the authors of these laws (an authorship that I express through my participation in the institutional life of the society) that gives me the moral "standing" to demand from my fellow members a justification for these laws. Thus any legal institutional arrangement that is disadvantageous to some members must be justifiable to them since they are entitled to ask, given that these are laws supposedly also made in their own name, why they should support and accept such a lawful arrangement. An institutionalized distributive egalitarian commitment among members of a soci- ety regulates and determines the bounds of acceptable inequalities between mem- bers, thus rendering the lawful arrangement agreeable to all. 7 36. Nagel, supra note 3 at 129, emphasis mine. 37. The reference to "law-maker" suggests that, for Nagel, a just society has to be a democratic society in which citizens are not merely participants of a system of social cooperation but that they have some say in the terms of cooperation. This contractarian reading ofjustice in Nagel, namely that a just society has to be democratic in some form, that is, a society whose members are in some sense authors of their own laws and not simply subject to them, is consistent with Nagel's overall position. Consider his opposition to Rawls's account of international toleration. Nagel writes that "there seems nothing wrong with being particularly supportive of transformation in a liberal direction" (ibid. at 135) even when we concede that there are "obvious practical reasons" for not imposing liberal democratic ideals on nonliberal societies. "We owe it to other people-con- sidered as individuals-to allow them, and to some degree enable them, to collectively govern themselves" (ibid., my stress). That is, we owe it to others, morally speaking, to allow them, if not even help them, establish domestic democratic institutions. The Boundary of Justice and the Justice of Boundaries Thus on Nagel's account, it seems that even if the laws made in our name may be unfavorable to others (under whose name these laws are not made), the latter are not entitled to an explanation. It is only when one is also disadvantaged by laws that one is also supposed to have a say in, or a role in shaping, that entitles one to some explanation and justification for a given arrangement. So even if I am right above that international law is coercive of many, if it is indeed true that international law is however not made in the name of persons as members of the global society as such but is made by agents in their capacities as citizens, then only fellow citizens are owed any justification for any social and legal order and the inequalities admit- ted by such order, for only fellow citizens are mutually engaged in the making of these arrangements. "The state makes unique demands on the will of its mem- bers-or the members make unique demands on one another through the institu- tions of the state-and those exceptional demands bring with them exceptional obligations, the positive obligations of justice."38 Because there are no similar "unique demands" on persons by the global order, no one has standing to demand justification for a global order that disadvantages some relative to others, and so the positive obligations of distributive justice in that context do not exist. Freeman's observation considered above, that international law supervenes on domestic law, is revived thus: what is qualitatively different between international and domestic laws is that domestic laws are made in the name of citizens whereas international laws, while enforced against foreigners, and are not laws made in their name. Nagel's thesis that it is the "engagement of one's will" in the lawful institutions of one's society that gives one the standing to demand a justification for any arbi- trary inequalities that institutions generate is complex and challenging. I don't pre- tend to be able to offer a decisive response to it. But some tentative remarks may be made. A first response is to insist that there are international laws and policies that are in fact made in the name of all persons governed by these laws. For instance, when the General Assembly of the United Nations adopts resolutions and policies that affect persons anywhere in the world, this is done supposedly in the name of the people (of the different countries) that the delegates to the Assembly officially represent. In as far as we accept that an ideal state is one in which the government represents the people in some appropriate way, any enactment of inter- national law by governments of countries will be in the name of the people they supposedly represent. So even if distributive justice considerations arise only among individuals who collectively make laws in their own name, it is contestable whether this rules out a consideration for global distributive justice. Of course it is true that as a descriptive matter, many governments do not effectively represent their com- patriots (especially in cases of non-democracies). But Nagel's thesis is a normative and not a descriptive one. It establishes the condition for state legitimacy. The point concerns how we ought to understand and conceive of individuals. We are to see them not merely as subjects of the laws of their country but also in some ways as the rightful authors of these laws. Under this condition, it seems that international laws are laws made in the name of a people that are represented by its delegates. 38. Ibid. at 130. Nagel acknowledges the formation of new networks of global governance that have transcended the traditional account of international law as simply treaties between states. Yet, he notes that these "these networks bring together represen- tatives not of individuals, but of state functions and institutions" and this indirect relationship to individuals is morally significant?9 But even if it is right that par- ticipants in global institutions are representatives of states rather than of individuals, which seems in fact correct for. the most part, should this not at least generate some distributive commitment between states? That is, if states are in fact making inter- national law in the name of each other, shouldn't the considerations applicable to individuals within domestic society analogously apply between states? If so, this would generate at the very least some distributive egalitarian duties between coun- tries. More to the point, however, it is not clear why the fact that individuals are represented through different institutions, some more directly than others, at dif- ferent political arenas, should be seen as morally significant in the way Nagel sug- gests. The different forms of representation can be seen as an institutional division of labor, that is, as different ways of representing the interests of individuals. Indeed, even in the domestic society, individuals are not always directly represented-their different interests are represented through different institutions, some more directly than others. Yet presumably Nagel does not require complete direct individual rep- resentation in the political order of society as a precondition of the "engagement of one's will" in the institutional life of their society. But leaving aside whether international laws are or should be seen as laws made in the name of all persons affected, there is a fundamental principle in Nagel's thesis that demands closer examination. This is the idea that only persons who are also authors of coercive lawful institutions have some standing to demand that these institutions not be to their disadvantage relative to other participants in the insti- tutions. The fact that one is simply affected or subject to some lawful arrangement, even disadvantageously, does not sufficiently entitle one to some justification. This point is well illustrated in Nagel's response to an anticipated objection, that immigration laws enacted by individual (rich) countries constitute a class of laws that affect outsiders disadvantageously. On the objection, aren't foreigners who are disadvantaged by the immigration laws of (rich) countries entitled to an explanation for this coercive arrangement, and would the justification of immigration restrictions not require some distributive commitments to them? Nagel points out, in response, that immigration policies do not need to be justified to outsiders because immi- gration "policies are simply enforced against the nationals of other states; the laws are not imposed in their name, nor are they asked to accept and uphold these laws. Since no acceptance is demanded of them, no justification is required that explains why they should accept such discriminatory policies, or why their interests have not been given equal consideration. It is sufficient justification to claim that the policies do not violate their prepolitical human rights."4 I think some questions may be raised concerning this focus on the rights of per- sons qua law-makers rather than simply qua subjects of the law. Why is it the case 39.Ibid. at 139. 40. Ibid. at 129-30, emphasis mine. The Boundary of Justice and the Justice of Boundaries that no explanation is owed to persons simply on the ground that they are affected by laws and institutions that others are imposing on them? Why is a justification (for unfavorable arrangements) owed only to those who have a hand in sustaining the arrangement and not simply to anyone who is affected, whether or not they have a role in the making of the arrangement? If laws made in our name have a disad- vantageous impact on others, can they not demand an explanation from us even though these laws were not laws made in their name? Indeed, if we accept as a gen- eral criterion of legal legitimacy that laws affecting persons must be laws that they could themselves accept, then Nagel's point that only those in whose name a law is enforced have "standing" to demand some explanation seems ungrounded. Legitimate and lawful coercion would seem to require that anyone affected by coer- cive arrangements is entitled to ask for some explanation for laws that may be imposed on them. One might say that it is not the fact that a law is imposed on some that is morally relevant. What is relevant is the presence of a lawful and coercive authority that has dominion over one. Hopeful immigrants, while they do find their movements restricted by immigration laws that can be enforced coercively against them, are not under the dominion of the authority enacting that restriction as long as they remain outside the jurisdiction of that society. Following Dworkin, one can say that a state because of its dominion over all within its jurisdiction owes each one of its citizens equal concern if it is to be legitimate in their eyes. But it owes no such equal concern, so one might say, to strangers at its gates even if it is the fact that its (immi- gration) laws are what is keeping them out, for it holds no dominion over them until they are admitted (and therefore until they are admitted, it doesn't owe them equal concern). Yet this reasoning perhaps begs the question by taking it for granted that the dominion of a powerful state coincides with its territorial boundaries. The example of immigration laws and practice shows, to the contrary, that states can exercise some kind of authority and dominion over persons who are not within their tra- ditionally recognizes jurisdiction. States do expect outsiders to obey and accept their immigration laws. More explicitly, the foreign policies of powerful countries do affect numerous people who are not citizens, and lawfully so if these are policies enacted according to accepted domestic legislative procedures. So how can it be said that a state can exercise dominion only over its citizens, when the laws it passes domestically can affect quite pervasively the lives of outsiders?4 ' Why is this per- vasive and profound and legal influence on persons' lives not a form of dominion? The real issue, in short, is what is meant by the exercising of dominion over another. I am suggesting that one need not be a member of a society before it can exercise dominion over one, if we understand by having dominion over another as having the capacity to lawfully affect significantly the life options of another. 41. Dworkin writes, "A political community that exercises dominion over its own citizens, and demands from them allegiance and obedience to its laws, must take up an impartial, objective attitude toward them all .... Equal concern ... is the special and indispensable virtue of sovereigns." Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000) at 6. To be sure, Nagel does not say that no explanation is ever owed to persons affected by laws not made in their name. When externally imposed arrangements and laws affect persons in ways that violate their "'prepolitical' human rights" some accounting for the violation is demandable. "Prepolitical" rights are the rights per- sons have independently of any institutional arrangements, and these are, for Nagel, limited to basic rights that include subsistence rights, but do not cover the right to distributive equality of some sort. So when lawful arrangements merely allow for inequalities, or where they only disadvantage some (without offending against their basic rights), no explanation is owed to those so affected when they are only subjects of these laws. But why is an explanation owed only when people's prepolitical basic rights are violated but not when they are put at a disadvantage? Is this a morally significant distinction? Imagine a prepolitical state of nature in which a community A is settled upstream in relation to another community B that is placed further downstream. Imagine also that each of these communities is dependent on the resources from the river. Suppose now that A elects to extend a net across the river for the purpose of improving its yield of fish. Imagine also that this obstruction when constructed will not violate any prepolitical rights of people in B; some fish and other essential resources will continue to slip through, so the basic needs of the community is not at threat. Still members in B will now have a diminished quality of life; perhaps they now have to work extra hours to obtain the same amount of goods as they did before the construction of the net. Or perhaps even though they still are able to meet basic needs, they simply have fewer resources to work with now, thus compromising their material quality of life. On Nagel's model, it seems, members of B have "no standing to ask" why they should accept this arrangement. Their prepolitical rights are not violated for they still are able to meet their subsistence needs; and the arrangement (the net across the river) was not erected in their name but in the name of people in A. But why is no explanation or justification owed to the people down- stream by those upstream? The fact that this is an arrangement not made in their name or for their sake is immaterial-what is material is that this arrangement affects them disadvantageously. To be sure, if the construction of the net results in the community downstream losing its means of subsistence, then a basic pre- political right to subsistence has been violated and on Nagel's view the community upstream can be held accountable by the affected community. But why is the com- munity to be held accountable only when basic rights are infringed upon? Is the fact that it has rendered another worse-off not something that it has to be held accountable for, something for which it needs to justify? Immigration is just one example of laws domestically enacted that affect others disadvantageously and to whom, it seems from the above analogy, some justification and explanation is owed. Domestic environmental laws regulating industrial pol- lution levels, state subsidization of domestic sectors, laws regulating conduct of national corporations and so on are other examples. It is the recognition that these so called domestic policies affect outsiders and that some accounting is owed to all negatively affected that have motivated the call for greater global democratic The Boundary of Justice and the Justice of Boundaries decision making and institutions with respect to certain issues like the environment, conduct of corporations, state subsidy of agriculture and so on. To be sure, if domestically enacted laws or policies do not make foreigners worse-off, but only give them a worse deal compared to what fellow citizens get, it is hard to see what the grounds for complaint can be. But there are cases of laws domestically enacted that are not just relatively advantageous to members but that in effect make outsiders worse-off than they would be without these laws. If there indeed are such cases, do we not owe outsiders an explanation (for why they are being made worse-off) even if these are not laws made in their name? Don't we owe them an explanation even if we are not violating their prepolitical rights but simply because we are making them less well-off than they otherwise would be? Why should those negatively affected accept this coexistence peace- fully otherwise? Indeed, isn't one of the arguments for greater global cooperation and democracy prompted by the recognition that there is a need to justify to each other globally our decisions and policies that can affect others in ways that are disadvantageous?42 It seems to me that Nagel's attempt to drive a wedge between domestic and inter- national legal contexts, thus providing a unique grounding for egalitarian distributive justice in the domestic but not international context, does not fully succeed. It relies controversially on the point that only persons in whose name supposedly an arrange- ment is established and supported have the standing to ask why they should accept the arrangement when that arrangement admits of arbitrary inequalities. But the ideal of legitimacy seems to suggest that anyone affected by an arrangement that is disadvantageous of her or him in the sense that she or he is rendered worse-off by the arrangement is entitled to some justification and accounting, whether or not the arrangement was established in her or his name, especially when escaping from the effects of the arrangement is not a real option. That arrangement would be a case of "pure coercion" otherwise. 11. The Justice of State Boundaries Let me now turn to the second set of considerations that I have called arguments for the ethical significance of boundaries. As I said, this class of arguments does not directly challenge the global scope of distributive justice. Rather, it attempts to show that there are competing considerations or claims ofjustice that can limit what global egalitarian justice can demand of people. In particular, these arguments try to show that citizens owe to each other certain special obligations of distributive justice that may outweigh their duty of distributive justice towards foreigners. We can divide arguments for the special duties of citizens into two broad 42. This point is suggested in Kant: "The concept of Right, insofar as it is related to an obligation corresponding to it (i.e., the moral concept of Right), has to do first only with the external and indeed practical relation of one person to another, insofar as their actions, as facts, can have (direct or indirect) influence on each other." Kant, The Metaphysics of Morals, trans. by Mary Gregor (Cambridge: Cambridge University Press, 1993) at 56. See also sections 43-45 in "The Doctrine of Right". categories-those that treat these special duties as voluntary duties and those that treat them as non-voluntary duties. On the broadly voluntary approach, the special duties that citizens have to each other derive from their willing participation in a mutually beneficial association. It does not mean that citizens must have explicitly consented to these special duties, nor does it entail that membership in the political society is explicitly voluntary. The idea is that there are benefits to being a member of a social cooperative scheme which the well-ordered state is, and in accepting these benefits, one has also effectively consented to the special duties that come with being a participant and beneficiary of that cooperative scheme. The voluntarily acceptance condition is satisfied if there is willing and ongoing enjoyment of the benefits of being a member of the association. For short, we can call this the "mutual benefit argument" for special obligations. What some anti-global egalitarians go on to claim is that these special obligations are obligations ofjustice between citizens that can limit the demands of global egal- itarian justice. This argument, it is worth noting, is more modest than the "shared institutions" argument considered above. The present argument does not claim that only within an existing political society do considerations of distributive justice gain traction. It makes only the limited claim that special considerations ofjustice arise among individuals sharing a mutually beneficial scheme, and that what indi- viduals owe to each other more generally as a matter ofjustice will have to be bal- anced against such special duties that they can have. That persons have special obligations to their fellow citizens seems grantable. What is more controversial is the claim that these special duties ofjustice can limit the demands of global justice. It is this claim that we need to examine, momentarily. On the broadly non-voluntary account of special obligations, individuals do not acquire special obligations only when they have voluntarily assumed them in some way but can acquire special obligations simply by virtue of their occupying a role or social position to which these obligations attach. Moral philosophers sometimes refer to these as "associative duties".43 Associative duties are a species of special duties, but unlike other kinds of special duties, they pick out those special duties that attach to social roles, that occupants of a role have simply by virtue of being an occupant, even when they have not volunteered for the role. To say that a duty is an associative duty does not mean that the role to which the duty attaches cannot be voluntarily assumed. It means rather that the normative force of that duty comes not from the voluntary assumption of that role but directly from what it means to be an occupant of that role. We can call this the argument from associative duties. The different social roles that we occupy are characterized by different norms that give meaning and value to these roles, and the special duties that an occupant of roles has is a function of these norms." For example, we ordinarily accept that among the norms inherent in the ideal of friendship is some kind of special concern or loyalty towards friends. One who does not show her friends any special concern, 43. Michael Hardimon, "Role Obligation" (1994) XCI/7 J. Phil. 333; Samuel Scheffler, Boundaries andAllegiances (New York: Oxford University Press, 2001). 44. See Hardimon, supra note 43. The Boundary of Justice and the Justice of Boundaries or more fundamentally rejects the norm of special concern as inherent in the notion of friendship, does not know what it means to be a friend. It is part of being in a friendship that one shows a friend special concern. One who rejects this special concern is not occupying the role of friend as we ordinarily understand it. But associative duties are important in another way. Not only are they duties that inherently attach to certain roles or positions, but they are also duties that are not fully reducible to some more general moral principles. For example, one mis- understands and under-appreciates the value of friendship if one understands the special concern for friends to be ultimately, say, a strategy or a division of moral labor for maximizing overall social utility (that is, if everyone were to care specially for their friends, the good of society can be best realized). As Scheffler puts it, "it is pathological to attach nothing but instrumental value to any of one's personal relationships.... [And] if one values one's relationship to a particular person non- instrumentally, one will inevitably see it as a source of reasons for action .... for treating that person differently from others."45 Someone who takes the value of friendship to be entirely derivable from the principle of utility, or some even other general principle like the ideal of mutual benefit or the duty of gratitude, would be a false friend. She would in fact not be participating in a friendship relation and is liable to be a person to leave a "friend" high and dry when it is no longer mutually beneficial to stay in the relationship, or when the principle of gratitude does not require that the relationship be sustained. Some people might think that the argument from associative duties relies on a philosophically untenable account of the special duties of citizenship compared to the mutual benefit model. After all, citizenship is unlike say friendship or kinship on a number of dimensions. But still the position is not entirely implausible (and some philosophers have defended or at least entertained this possibility). For the sake of discussion, I will simply (to my own disadvantage) grant this associative duty account of special citizenship duties. I hope to argue that even if the special duties of citizenship are associative duties, they don't provide reasons for limiting the demands of global egalitarian justice. The case for limiting egalitarian demands here is not that distributive duties are only strictly associative duties and so have no global scope. That argument was discussed in the previous section (e.g., the discussion on Nagel). The present argu- ment is agnostic about the scope of distributive justice. The claim is that the (spe- cial) associative duties of citizenship present special demands among citizens that can limit what global distributive justice can ask of them. I mention the mutual benefit and associative duties arguments concurrently because my response to each will be structurally similar. Although the mutual ben- efit and associative duties arguments give different reasons for the special duties of citizenship, what is key in each of these arguments (in their defense of the sig- nificance of boundaries thesis) is the claim that special citizenship duties can limit the requirements of global egalitarian justice. My argument will be that, whether 45. Scheffler, supra note 43 at 121. we take patriotic duties to be mutually-beneficial or associative, that last move is unsustainable.46 My response will be two-pronged: (i) while membership in an association can have its special privileges and these privileges may be distributed by principles inter- nal to the association, it does not follow that what these privileges rightly are fall outside considerations ofjustice external to the association, and (ii) more funda- mentally, the boundaries that define spheres or units of special concern (and con- sequently membership in such units) are not themselves immune from evaluations from the point of view of justice. On the first prong of the response: Consider the argument from mutual benefit. To repeat, the first step of the argument is that citizens belong to a mutually ben- eficial arrangement and in accepting the benefits have also accepted the duties that come with it. The second step of the argument is that these special duties can limit the claims of non-members. Whether or not we endorse the first move as a correct justification for special citizenship duties, the second step of the argument cannot be permitted without further arguments. Individuals may voluntarily form and par- take in mutually beneficial arrangements, and accept special duties that come from participating in this arrangement. But it is another thing to say that simply by virtue of opting to join or form a mutually beneficial arrangement that one is straightaway absolved of one's duties to non-participants. If this were so, we might as well say that the demands of justice and morality may be unilaterally declined, for moral agents may simply absolve themselves of their outstanding responsibilities by vol- untarily taking on new and presumably less burdensome ones. But this, of course, is not how we understand the nature of moral duties-a person may not release herself from her outstanding duties simply through some voluntary act of hers. The main point to note, then, is that while persons may have special duties to one another because they share a mutually beneficial arrangement (or simply because of what it means to be an occupant of a certain role), the fact that they have these special duties alone does not absolve them of any outstanding moral com- mitments or duties ofjustice to non-participants. In fact, it is the other way around- what kinds of mutually benefit associations people may form and what kinds of special duties people may have on account of their participation in these associations are to be limited by what individuals owe to each other at large. A well-organized criminal gang may be described as a mutual benefit association. But we do not say that this means that members of the gang by virtue of their special duties to one another are no longer required to respect the right of nonmembers to property, not to be harmed and so on. The anti-global egalitarian argument from mutual benefit, if endorsed, must absurdly allow that a person's duty ofjustice to individuals may be limited if she is part of a criminal organization that requires her to pay special attention to her fellow members. Special duties do not limit what general duties ofjustice demand of persons; rather general duties ofjustice set limits to what kinds 46. Thus I don't attempt to argue that patriotic favoritism is indefensible per se or without any ratio- nal basis. For carefully laid out arguments in this direction, see Charles Jones, Global Justice at ch. 7. The Boundary of Justice and the Justice of Boundaries of special duties people can freely take on. One simply cannot take on a special duty that one is, as a matter of'justice, prohibited from carrying out. To put it plainly, that there are distinct spheres ofjustice does not mean that there need not be justice between these spheres.47 This general point about the relationship between special duties and general duties applies to the associative duties argument for the moral significance of boundaries. The fact, even if true, that it is part of what it means to be a citizen that we show fellow citizens special concern does not mean that the content of this special concern can be determined independently of what strangers can rightly claim of us. We can accept that friends can have special duties or concern for one another, and we can accept that these special duties are non-derivative but issue directly from what it means to be in that kind of relationship which we call friendship. But it is another thing to say that these special duties need not respect any bounds. On the contrary, we take the special duties of friendship to be limited by what justice per- mits-this is what allows us to say of a friendship that it has degenerated into crony- ism, or of kinship that is has degenerated into nepotism. Special concern for friends that violate norms ofjustice that apply to all persons falls outside what is permitted in the name of friendship.48 So even if it is correct that citizenship obligations are associative, that it is part of what it means to be a good citizen that we show each other special concern, it does not follow that that the claims of outsiders must be outweighed. On the con- trary, absent additional considerations, it is more the other way around. Before we can know what it is that citizens owe to each other by virtue of their status as com- patriots, we need first to know what it is that they may distribute among themselves, and this cannot be determined independently of what it is that they rightly own, which in turn cannot be determined without reference to what it is that they owe as a matter ofjustice to non-citizens. To put this point plainly, to know how much I must distribute among my fellows, I must first need to know what it is that I rightly have. This means that before we can realize our duties of justice to com- patriots, we must first have an account of global distributive justice and live up to its demands. Notice that my above considerations, consistent with the associative duties argu- ment, do not reduce the special duties of citizenship into some instrumental or strategic device to further the ends of global justice. It grants that these special duties are not reducible in that way. What it says is that even though these special duties have a certain normative independence, they are nonetheless to be limited by the demands ofjustice, and this means that they cannot be properly fulfilled without first determining what justice does demand of us. What we may call the "constrain- ability" of an associative duty by principles of justice on the one hand, and the reduction of that duty to principles ofjustice on the other, are two distinct features. Friendship duties may be constrained by, say, the general duty to warn others against 47. See Amy Gutmann, "Justice Across the Spheres" in Miller & Walzer, supra note 3. 48. Saying that duties of friendship are limited by considerations ofjustice does not mean that these duties are derivable from justice; rather it means only that the scope and content of these duties are constrained by the requirements of justice. foreseeable harm; but it does not mean that the values of friendship are reducible to or derivable from the principle of warning against harm. Now the anti-global egalitarian may at this point accuse me of question-begging. She may say that I have assumed some kind of global egalitarianism as the default requirement of justice and so naturally I can limit special duties between citizens to that egalitarian requirement. But I have not made any false assumptions. It is the anti-global egalitarians who have unwarrantedly assumed that they have a case against global egalitarianism when they say that I am begging the question. Remember that so far the case against the universal scope of egalitarian justice has not succeeded. So in defending the moral significance of boundaries, the anti-global egalitarian cannot assume that this case has been made. In sum, however citizens come to acquire special duties ofjustice to their com- patriots, it does not follow that these special duties can limit what global justice can demand of them. On the contrary, without further argument, the default position is to limit the kinds of special duties people can take on by what they owe to all others in general. The second prong of my response to the ethical significance of boundaries addresses a more fundamental point, a point that is already suggested, I believe, by the above considerations. Units or boundaries of special concern are themselves unjust if they confer special privileges on members at the unjustifiable expense of non-members. There are two ways that the justness of boundaries of special con- cern can themselves be called into doubt. One is when the terms of membership are in themselves indefensible (eg. we might think associations whose membership are inappropriately based on race are questionable). Another is if the existence of these special units of concern sustains or exacerbates existing injustices, as when those already unfairly advantaged join together to form associations that further their advantages, or when the formation of these associations put those already unfairly disadvantaged and left out at a further disadvantage. So, "males only" busi- ness associations can be criticized not just because of their gendered terms of mem- bership, but also because these associations allow already advantaged individuals to gain further advantages relative to non-members. Now perhaps the boundaries of spheres of special concern that characterize most rich countries need not be unjust with respect to their membership criteria. Few countries today adopt, say, a morally indefensible race based criterion of immi- gration (as say Australia did with its "White Australia" policy in earlier decades). But if only a few well-off countries violate this first condition ofjust boundaries and membership, it is less clear that many meet the second condition, which is that the boundaries and membership of units of special concern do not further existing background injustices. To return to a scenario discussed earlier, one reason why immigration restrictions in rich countries call out for justification (to outsiders who are potentially kept out) is not because these are based on arbitrary factors like race, but because these restrictions in the context of global inequality are odds with the freedom of persons to move and to better their economic condition. In a world marked by great economic imbalances, units of special concernfrom which many already deprived others are kept out and in which members, privileged to begin The Boundary of Justice and the Justice of Boundaries with, confer additional special privileges on one another, have the effect of aggra- vating the situation of the global disadvantaged. Not only do they remain deprived of access to more resources; they are prevented from such access by strictly policed boundaries from moving and bettering their opportunities. And, internally, partic- ipants in advantageous spheres of cooperation from which others are kept out often are able to further improve their situation, thus furthering the imbalance between members and non-members. Far from grounding special patriotic commitments that can limit the demands of global egalitarian justice, the justice of the boundaries of citizenship is impaired under conditions of global inequality. And when bound- aries are unjustifiable, they clearly cannot go on to justify limitations on what justice in fact demands. Whether persons voluntarily create mutual benefit associations or simply find themselves born into and participating in associative roles that come attached with special duties, the justice of the boundaries of these associations can- not be determined independently of what justice to outsiders requires, much less limit its demands. The boundaries of special concern are justifiable only if these boundaries and the special privileges of membership that they confer do not upset the duties of justice that people owe to each other at large. The above comments are not meant to establish the case for open borders.49 My point, simply, is that the justice of the boundaries of citizenship (and hence of the special concern membership can confer) cannot be taken for granted, that the boundaries of special considerations are justifiable only under certain conditions. This does not mean no well-off countries may regulate immigration under con- ditions of economic injustice. Justice is, after all, an ongoing quest, and to expect full realization of justice before special concern may be expressed in the human world is to deny any possibility of such expression. The real task for moral agents is to do their fair share in the promotion ofjustice. Among other things, what this means is that states may regulate immigration but only if they are also doing their share in correcting background global inequalities. So a rich country may restrict immigration only if it is prepared to live up to its global distributive commitments. To simplify this into a maxim, a country that wishes to keep strangers out must not insist on keeping more than its fair share of resources in. IV. Conclusion Let me recap the central claims of my discussion. I began by suggesting that global egalitarians can attempt to extend reasons for caring about inequalities in the domes- tic case to the global context. Anti-global egalitarians can try to block this extension by arguing that the reasons for caring about domestic inequalities are unique to the domestic political sphere. I have tried, in defense of the global scope of dis- tributive justice, to show that the case for limiting the boundary of distributive jus- tice in this way does not succeed. Until there are defensible reasons for limiting egalitarian considerations to the state, the default position, for egalitarians, is that of global egalitarianism. Here, the anti-global egalitarian may try to show that the 49. Joseph Carens, "Aliens and Citizens: the case for open borders" (1987) 49/3 Rev. Politics 251. global scope of distributive justice notwithstanding, the special duties of justice that citizens have to each other can limit the application of global distributive demands. But if global egalitarianism is the default position, any special concern compatriots owe to each other must be limited by the demands of global egalitarian justice, not the other way around, for we do not say that background justice can be ignored and outweighed simply when people take on special obligations. Fundamentally, the boundary of distributive justice cannot be defined by the bound- aries and membership of special concern when the justice of these boundaries and membership is open to question. Indeed a key issue of global justice, namely the question of the boundary of distributive justice, cannot proceed without consid- eration of the effects of existing political boundaries on persons' opportunities and access to resources. Again, my thesis is not that political boundaries have no sig- nificance and are to be imagined away in constructing an account of global justice. The point, rather, is that the justice of political boundaries cannot be simply taken for granted, and consequently they may be poor markers of the boundary of dis- tributive justice. 
work_qdpjoe3aczcodjprqb3dk6m7oe	----	Creative Commons Attribution-ShareAlike 3.0 Unported License. | 03 public law .. - Jan 01 1970 02:00:00 AM CKS_2017_public_law_001.pdf 701KB May 18 2017 09:23:03 AM CKS_2017_public_law_002.pdf 823KB May 18 2017 09:23:03 AM CKS_2017_public_law_003.pdf 693KB May 18 2017 09:23:03 AM CKS_2017_public_law_004.pdf 640KB May 18 2017 09:23:03 AM CKS_2017_public_law_005.pdf 889KB May 18 2017 09:23:03 AM CKS_2017_public_law_006.pdf 786KB May 18 2017 09:23:03 AM CKS_2017_public_law_007.pdf 836KB May 18 2017 09:23:03 AM CKS_2017_public_law_008.pdf 773KB May 18 2017 09:23:03 AM CKS_2017_public_law_009.pdf 658KB May 18 2017 09:23:03 AM CKS_2017_public_law_010.pdf 653KB May 18 2017 09:23:03 AM CKS_2017_public_law_011.pdf 608KB May 18 2017 09:23:03 AM CKS_2017_public_law_012.pdf 755KB May 18 2017 09:23:04 AM CKS_2017_public_law_013.pdf 654KB May 18 2017 09:23:03 AM CKS_2017_public_law_014.pdf 661KB May 18 2017 09:23:03 AM CKS_2017_public_law_015.pdf 780KB May 18 2017 09:23:03 AM CKS_2017_public_law_016.pdf 626KB May 18 2017 09:23:03 AM CKS_2017_public_law_017.pdf 639KB May 18 2017 09:23:04 AM CKS_2017_public_law_018.pdf 879KB May 18 2017 09:23:04 AM CKS_2017_public_law_019.pdf 782KB May 18 2017 09:23:04 AM CKS_2017_public_law_020.pdf 845KB May 18 2017 09:23:04 AM CKS_2017_public_law_021.pdf 753KB May 18 2017 09:23:04 AM CKS_2017_public_law_022.pdf 784KB May 18 2017 09:23:04 AM CKS_2017_public_law_023.pdf 813KB May 18 2017 09:23:04 AM CKS_2017_public_law_024.pdf 547KB May 18 2017 09:23:04 AM CKS_2017_public_law_025.pdf 832KB May 18 2017 09:23:04 AM CKS_2017_public_law_026.pdf 713KB May 18 2017 09:23:04 AM CKS_2017_public_law_027.pdf 760KB May 18 2017 09:23:04 AM CKS_2017_public_law_028.pdf 764KB May 18 2017 09:23:04 AM CKS_2017_public_law_029.pdf 619KB May 18 2017 09:23:04 AM CKS_2017_public_law_030.pdf 824KB May 18 2017 09:23:04 AM CKS_2017_public_law_031.pdf 765KB May 18 2017 09:23:04 AM CKS_2017_public_law_032.pdf 744KB May 18 2017 09:23:04 AM CKS_2017_public_law_033.pdf 742KB May 18 2017 09:23:04 AM CKS_2017_public_law_034.pdf 811KB May 18 2017 09:23:04 AM CKS_2017_public_law_035.pdf 730KB May 18 2017 09:23:04 AM CKS_2017_public_law_036.pdf 706KB May 18 2017 09:23:04 AM CKS_2017_public_law_037.pdf 783KB May 18 2017 09:23:04 AM CKS_2017_public_law_038.pdf 769KB May 18 2017 09:23:04 AM CKS_2017_public_law_039.pdf 754KB May 18 2017 09:23:04 AM 
work_qepllrpcmjfrfejsvfhnwartdm	----	Environmental Justice Leaders Meet NIEHS News Environmental Justice Leaders Meet At a recent meeting hosted by NIEHS Director Kenneth Olden, environmental justice leaders reviewed the Department of Health and Human Services' Environ- mental Justice Strategy (see Special Report on next page). At the meeting in Research Triangle Park, North Carolina, leaders emphasized the need for a coordinated approach to ethnic and regional networks focused on health and justice in low- income and minority populations. Senior staff from the NIEHS and the National Toxicology Program identified opportuni- ties for improved partnerships with the networks through the hazardous waste and minority worker training program, envi- ronmental justice partnership grants, and other core professional training and research activities. Olden stressed the importance of expanding collaborative efforts with the networks over the next year, as the NIEHS and DHHS imple- ment the environmental justice strategy. Leaders who attended the meeting include: Richard Moore, director of the Justice team. (left to right) Sharon Beard, Allen Dearry, Mary Crowe, Charles Lee, Kenneth Olden, Richard Moore, Connie Tucker, Robert Bullard, Yin Ling Leung, and Jerry Poje. Southwest Network for Economic and Environmental Justice and chair of the National Environmental Justice Advisory Committee, Mary Crowe of the Indi- genous Environmental Network, Charles Lee of the United Church of Christ's Commission on Racial Justice, Connie Tucker of the Southern Organizing Committee, Robert Bullard, director of Clark Atlanta University's Environmental Justice Resource Center, and Yin Ling Leung of the Asian Pacific Environmental Network. mpenal Institute of Environmental Health Sciences Clearinghouse on Environmental Health Efects sIIus:1800 NIEH$04,1000 043-4704 it,> ~~FM: 010-381-0408 el:E NVIR.N....H.I..I.. . ... . Environmental Health Perspectives * Volume 103, Number 9, September 1995 795 
work_qevsgfu4fvafvfr2ydxlivhcvi	----	n3408.indd © 1935 Nature Publishing Group FEBRUARY 23, 1935 NATURE 297 News and Views Robert Hooke's Diary THE tercentenary of the birth of Robert Hooke, Gresham professor of astronomy, surveyor to the City of London and curator of experiments to the Royal Society, occurs on July 18 of this year. Hooke appears to have kept a continuous diary for the greater part of his life ; and parts of his daily journal have been found in three different libraries. The importance of the first part was realised by Dr. Jean Pelseneer of Brussels, who directed the attention of the Royal Society to its existence in 1928; with the permission of the authorities of the Guildhall Library, Mr. H. W. Robinson made extracts, some of which were published by Dr. Pelseneer in Isis (February 1931). Afterwards, Mr. Robinson discovered another and later part of the diary in the British Museum, where for more than a hundred and sixty years it had been catalogued as the diary of James Petiver. The Guildhall portion of Hooke's diary is the most im- portant, and is full of interest from all points of view. It records meetings of the Royal Society of which no minutes occur ; elections of which there are no official records extant ; details of his work as architect, surveyor and contractor ; his daily visits to the coffee- houses and taverns, where h e joined in the discourses and gossip of the city men ; details of his private life, his income, his purchase of books and necessaries of life. BY the courtesy of the Library Committee of the Guildhall, the part of Hooke's diary in the Guildhall Library can now be published. For many years Mr. H. W. Robinson and Mr. W. Adams have been carefully transcribing the diary, and it will be published, together with a short life of Hooke, by midsummer. The work of printing and publishing has been entrusted to Messrs. Taylor and Francis, who have undertaken to produce the book with the aid of a subsidy from the Royal Society. Of more than passing interest is the fact that the house occupied by Messrs. Taylor and Francis is supposed to have been built during the period of the diary, and most probably by Sir Christopher Wren and Robert Hooke. It may be remembered that Dr. R. T. Gunther has already published three volumes of Hooke's works in his series of books on "Early Science in Oxford". Tribal Justice in Australia A PERTINENT example of the practical bearing of the results of anthropological investigation is afforded by the defence set up in a trial for murder of two aborigines from Alice Springs, South Australia. The facts of the case are set out in a dispatch from the Adelaide correspondent of The Times in the issue of :February 15. The defence rested on a plea of tribal justice. It has been put forward that the two accused were acting in accordance with custom and under the instructions of the elders of the tribe in putting to death a man who had revealed ceremonial secrets to a woman. Failure to comply, it was stated, would have entailed death. As might be expected, anthro- pologists have not failed in the endeavour to bring the aboriginal point of view before the court. Expert witnesses, however, were not heard; but their special knowledge was placed at the service of the defence. Ever since Spencer and Gillen first recorded, nearly forty years ago, the special reverence of the natives of Alice Springs for everything pertaining to tribal ceremonial, anthropologists would have been pre- pared to expect death as the logical consequence of so grave a threat to tribal safety as the breaking of taboo involved in the disclosure of ceremonial objects or procedure to a woman. It is, at the very least, the equivalent of a combination of high treason and sacrilege in a civilised community. As recent trials in Africa have shown, a court rooted in European law is not prepared to admit that in such cases tribal justice may demand and exact the supreme penalty, in the manner in which in a civilised society a traitor who discloses State secrets may be imprisoned for life or condemned to death. Those who carry out the sentence of the tribe must, in accordance with the laws of the country, be adjudged guilty of murder, even though the extreme penalty may not eventually be imposed. Organisation of Agriculture in Australia DIFFICULT circumstances in the agricultural in- dustries of Australia are giving rise to much-needed co-operation between Commonwealth and States. In December last a conference of ministers at Canberra determined to establish an Australian Agricultural Council, to provide for continuous consultation among the Governments on economic aspects of agriculture, the members to be the Federal Minister for Commerce, the Minister-in-Charge of Development and Scientific Research and the State ministers concerned. This body will be supported by a permanent technical committee which is identical in personnel with the former Standing Committee on Agriculture of the Council for Scientific and Industrial R esearch, but which will now have greatly increased responsibilities. Its m embers are the six permanent heads of the State Departments of Agriculture, the three executive members of the Council for Scientific and Industrial Research, the Secretary of the Department of Com- merce and the Director-General of Health. Besides its duties on the side of agricultural economics, this committee is charged with (i) securing co-operation and co-ordination in agricultural research throughout the Commonwealth ; (ii) advising Commonwealth and State Governments, directly or through the new Council, on matters pertaining to the initiation and development of research on agricultural problems; and (iii) securing co-operation b etween Common- wealth and States, and between the States them- selves in all quarantine measures relating to pests and diseases of plants and animals, and advising Governments thereon. Tribal Justice in Australia 
work_qfwjc35rxfd7jp4evbnmcst36q	----	Gender, Transitional Justice and Development Procedia - Social and Behavioral Sciences 30 (2011) 2341 – 2344 Available online at www.sciencedirect.com 1877-0428 © 2011 Published by Elsevier Ltd. Selection and/or peer-review under responsibility of the 2nd World Conference on Psychology, Counselling and Guidance. doi:10.1016/j.sbspro.2011.10.456 Procedia Social and Behavioral Sciences Procedia - Social and Behavioral Sciences 00 (2011) 000–000 www.elsevier.com/locate/procedia WCPCG-2011 Gender, transitional justice and development Akanle, Florence Folusoa aFaculty of Education, University of Ado-Ekiti, Nigeria Abstract The study investigates the experience of sexual abuse, the right of women in sexual relationship and the prevalence of sexual violence among them. Using survey research design, a total number of 1,000 women were selected. Data was collected using a self constructed questionnaire. The research instrument has a construct correlation co-efficient of 0.762. Data was analysed using t-test, bar chart, frequency counts and percentage. The result of the analyses revealed that women experience sexual abuses. A significant difference in the decision making opportunities by men and women was observed. It was recommended that women’s right must be protected. Keywords: Safe sex, gender based violence, sexual violence, subordinate status, sexual rights. 1. Introduction Nigerian women are critical partners in the sustenance of social, economic, religious and cultural well being of their communities. However, the status accorded to women in Nigeria is low (Dankelem & Davidson, 1997). Women play the second fiddle when men lord it over women. Men have more opportunities in reproductive issues in Nigeria. (Akanle, 2008). Reproductive issues are not only about gender but about justice and human right. There is growing evidence that the reproductive health, pertaining to women needs attention. It seems most women find it difficult to say no to their husband when it concerns unprotected sex. In the Nigerian culture, it is hard for a wife to say no to her husband, most women do not have a say in safe sex issues. Numerous reports such as UNAIDS (2002) have indicated that women and girls are increasingly victims of HIV/AIDS, sexual violence and other human right abuses. Violence is a threat to human security and justice for victims is a prerequisite for sustainable peace and human security. Elisberge (1997) observed that women social, cultural and economic subordinate statuses further contribute to the spread of HIV/AIDS. Extreme poverty often forces women to turn to prostitution and denies them power to dictate safe sex. The combination of gender and culture prevents women from enjoying their human rights and makes them susceptible to HIV. The declaration on the elimination of violence against women adopted by the UN Orientation Assembly in 1993, UNAIDS (2002) acknowledged that violence against women occurs both within the general community and within the family. Violence may be perpetrated or condoned by the state. The declaration defines gender based violence as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty whether occurring in public or in private life’. Open access under CC BY-NC-ND license. http://creativecommons.org/licenses/by-nc-nd/3.0/ 2342 Akanle, Florence Foluso / Procedia - Social and Behavioral Sciences 30 (2011) 2341 – 2344 Akanle, Florence Foluso/ Procedia – Social and Behavioral Sciences 00 (2011) 000–000 2 In spite of the declaration, there seems to be growing evidence of reported cases of frequent occurrence of exposure of women to infection of HIV/AIDS by the refusal of their husband to wear condom, prevention of women from discussing issues of sexuality and reproduction and preventing the female ones form negotiating safe sex in case of rape. 2. Statement of the Problem In Nigeria, many women suffer injustice, and lack equal power to safer sex in intimate union. There are evidences of sexual violence by intimate partners against women. It is not surprising that many women suffer in silence, simply because of lack of the ability to assert their right or lack of the knowledge of their right to negotiate safe sex or because it is hard for women to say no to their husbands because of the Nigerian culture. It is only when women are given the right information and empowered to have a say in safe sex that their right can be protected . To understand the degree of decision making over the sexual rights of women and whether women experience violence, there is need for this study.  Do women experience abuse of their rights in sexual relationship?  What is the prevalence of sexual violence among women? 3. Hypothesis There is a significant difference in the ability to assert one’s right over sex among married men and women. 4. Methodology The study was carried out in the six states of south-west Nigeria between January to April 2006. Survey research design was used in this study. The population consists of married women in south west Nigeria who are currently living with their husbands. A sample of 1,000 women was selected using simple random sampling techniques. Data was collected using a self constructed questionnaire titled ‘Gender and transitional justice questionnaire (GTJQ). The questionnaire was validated using face, content and construct validities procedures. Experts ascertained that the instrument measures what was studied, using Pearson product moment correlation, a test re-test method of establishing reliability was used. The construct validity was done by correlating the test score of the administration of the (GTJQ) with that of sexual abuse of gender-based questionnaire (SAGC) using Pearson product moment correlation. SAGC is an instrument known to have an acceptable level of construct. A correlation coefficient of 0.762 was obtained, which was significant at p<0.05. Data was analysed using t-test; bar chart frequency counts and percentages. The hypothesis was tested at 0.05 level of significance. 5. Results 5.1. Descriptive analysis Question 1: Do women experience abuse of their rights in sexual relationship? This question was answered using frequency counts and percentages of responses of women concerned with whether women experience abuse of their rights. Table 1: Experience of sexual abuse by women S/N Question Yes No Number % Number % 1. Desired of the right to use contraceptives 455 45.5 545 54.5 2. Sexual assault 150 15 850 85 3. Prevented form making decision about sex 356 35.6 645 64.5 4. Sexual exploitation 288 28.8 792 79.2 2343Akanle, Florence Foluso / Procedia - Social and Behavioral Sciences 30 (2011) 2341 – 2344 Akanle, Florence Foluso/ Procedia – Social and Behavioral Sciences 00 (2011) 000–000 3 10 20 30 40 50 Deprived of the right to use contraceptives Prevention from decision on sex Sexual exploitation Sexual assault ‘YES’ means ‘’I have experienced sexual abuse’’ ‘NO’ means ‘I have not experience sexual abuse’’ Table 1 shows that women experience sexual abuse such as denial of the right to use contraceptives, prevention from decision making about sex, sexual exploitation and sexual assault. Question 2: What is the prevalence of sexual violence among women? To answer this question, responses of women concerned with their experience of sexual violence was used. The result of the findings is shown in the pictorial explanation of the various types of sexual violence. Table 2: Hypothesis 1: There is a significant difference in the ability to assert ones right over sex among married men and women. This hypothesis was tested using t-test. The score obtained by married people were subjected to t-test analysis. The result is shown on table 3. Table 3: t-test analysis of right over sex among married men and women Variables Number Mean SD Men 500 57.57 998 5.111 1.96 Women 496 57.57 Provide the key to these - N, X, SD ‘SD’ represents ‘standard deviation’ Table 3 shows t-cal 5.111 and table 1.96 at 0.05 level of significance. The null hypothesis is therefore rejected. Therefore there is a significant difference in the decision opportunity by women and men. 5. Discussion The study investigated the experience of abuse of sexual right of women, the prevalence of it and the ability of the women to assert their sexual right as compared to men. The findings show that women experience sexual abuse such as denial of the right to use contraceptives, prevention from decision making about sex, sexual exploitation and sexual assault. 2344 Akanle, Florence Foluso / Procedia - Social and Behavioral Sciences 30 (2011) 2341 – 2344 Akanle, Florence Foluso/ Procedia – Social and Behavioral Sciences 00 (2011) 000–000 4 The finding of this study shows that there is a significant difference in the decision making opportunities by men and women. This finding agrees with that of Kuti (1999) and Akintoke (2006) who observed that women do not have equal opportunities in sexual matters like men and that women experience gender based violence, suffer injustice because many women do not know their right, because those who know their right might be avoiding conflict, misunderstanding or suspicion which can result if they claim their right, hence many women choose to take the risk of not claiming their right so as to avoid being labeled a non conformist or overly dominated by claiming their right. Sometimes it is hard for a woman to dictate safer sex. 6. Conclusion Sexual violence, abuse of the sexual right of women is a violation of the sexual rights. Sexual violence has some serious implications on human security as well as justice process and human development. Violence is a threat to human security and justice for victims of violence is a prerequisite for sustainable peace and human development. Lack of the opportunity or equal opportunity concerned with sexual matter is lack of justice for women. Denial of women power to dictate safe sex is an infringement of their sexual right. Women rights must prevail so as to prevent the inevitable proliferation of such a disease such as HIV. Protecting the right of women include doing away with cultural or traditional practices that infringe on these rights. It is important that the presence of peace is important for human development. Gender violence that contributes to the spread of HIV/AIDS has to be addressed and one must keep in mind that without justice there cannot be sustainable peace. References Akanle, F. F. (2008), Sexual and contraceptive negotiation among married people in Nigeria. Journal of Contemporary Politics. Department of Political Science, University of Ado-Ekiti, Nigeria. Akintoke, A. (2006), Domestic violence in Ekiti state. An unpublished M.Ed. thesis; Department of Guidance and Counselling, Faculty of Education, University of Ado-Ekiti. Dankelem, I. & Davidson, J. (1997), Women and environment in the third world: Alliance for the future. London: Earth Seen. Elisberge, M. C. (1997), Candles in hell: Domestic violence against women in Nicaragua .Umea: Umea University. Kuti, R. (1999), Women HIV/AIDS: The role of traditional women. Right Monitor Journal of Women Justice; 1: 5 United Nations Action on AIDS Programme (UNIDS) (2002). Reports on global HIV/AIDS epidemic. Geneva, Switzerland: Family Health International. 
work_qi3tifi45bbmncwdo2hymbt5by	----	Microsoft Word - Final Document & Criminal Justice Policy Review Edited EL.docx Northumbria Research Link Citation: Greife, Matthew, Stretesky, Paul, O'Conner Shelley, Tara and Pogrebin, Mark (2015) Corporate Environmental Crime and Environmental Justice. Criminal Justice Policy Review. ISSN 0887-4034 Published by: SAGE URL: http://dx.doi.org/10.1177/0887403415576742 <http://dx.doi.org/10.1177/0887403415576742> This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/21524/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. Full items must not be sold commercially in any format or medium without formal permission of the copyright holder. The full policy is available online: http://nrl.northumbria.ac.uk/pol i cies.html This document may differ from the final, published version of the research and has been made available online in accordance with publisher policies. To read and/or cite from the published version of the research, please visit the publisher’s website (a subscription may be required.) http://nrl.northumbria.ac.uk/policies.html Northumbria Research Link (www.northumbria.ac.uk/nrl) Deposited in NRL: 4 – March – 2015 Item type: Peer reviewed article Date of acceptance: 16 –February – 2015 Date of publication: In press Citation to published item: Greife, Matthew J., Paul B. Stretesky, Tara O’Conner Shelley and Mark R. Pogrebin. (Forthcoming). Corporate Environmental Crime and Environmental Justice. Criminal Justice Policy Review. DOI: URL to published item: http://cjp.sagepub.com/content/by/year Additional information: ! 1! CORPORATE ENVIRONMENTAL CRIME AND ENVIRONMENTAL JUSTICE Matthew J. Greife Department of Sociology University of Georgia Paul B. Stretesky Department of Social Sciences and Languages Northumbria University Tara O’Conner Shelley Department of Sociology Colorado State University Mark R. Pogrebin School of Public Affairs University of Colorado Denver ! Paper Accepted by Criminal Justice Policy Review on February 16, 2015 Copyright 2015 Do not cite, circulate, quote or copy without permission ! 2! Corporate Environmental Crime and Environmental Justice Abstract: Executive Order 12898 (42 U.S.C. § 4321 [2000]) mandates that federal agencies in the United States make it their purpose to achieve environmental justice. As a result, agencies often rely on empirical studies to provide crucial information that can be used to implement policies to combat inequality. While numerous studies now examine the distribution of environmental burdens and benefits, there are no systematic empirical studies that examine inequality in criminal penalties. This study corrects that omission by presenting findings on the relationship between community demographics and monetary penalties (fines) against corporations for 121 criminal violations of federal environmental law that were adjudicated between the years 2005 and 2010. Our results suggest that fines are not correlated with the demographics of residents living near the crime. That is, corporations that committed their environmental crimes in minority and poor areas did not receive lower fines as a result. Thus, environmental justice concerns appear to be satisfied with respect to federal criminal prosecutions. Keywords: Corporate Punishment; Environmental Equity; Environmental Crime; Green Criminology ! 3! Introduction In 1990 Michael Lynch suggested that a “green criminology” should be at the center of the discipline’s development. Within this new green criminology, environmental justice is a central concept (Stretesky, 2008). White (2008, 50), for instance, elaborates that green criminology must emphasize “environmental justice with a special focus on human rights, social equity and ecological justice.” Whether one is using an environmental justice perspective or some other perspective such as ecological justice to inform their research, most green criminologists now study a range of environmental harms, some of which are legal and some of which are illegal (White & Heckenberg, 2014; White, 2013). This study extends the green criminology tradition by focusing on environmental justice concerns identified in Executive Order 12898 (42 U.S.C. § 4321 [2000]), which mandates that federal policies should encourage the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”i Specifically, we examine whether the composition of race/ethnicity and/or the poverty of communities surrounding environmental violations is inversely correlated with the monetary penalties assessed by the federal government for those violations. If penalties are, on average, lower in communities that are minority and/or poor, then national policies may need to be adopted to tackle that problem. The current study is focused specifically on illegal behavior; however, green criminologists adopt a framework for studying environmental harm that is inclusive and often examine both criminal and non-criminal behavior. This approach is advantageous, and studying the adverse effects of legal and illegal actions is nothing new in the discipline. That is, criminologists and legal researchers often study activities that are considered legal and legitimate ! 4! but which nonetheless have detrimental impacts on people and environments (Hillyard & Tombs, 2007; Sutherland, 1949; White, 2003). The emphasis green criminologists place on studying both legal and illegal activities is most easily recognized as advantageous within the real-world applications of environmental law. For instance, in US v. White (1991) the testimony from the EPA’s assistant administrator emphasizes that the definition of environmental hazards is constantly changing as the agency modifies its administrative rules. Therefore, a flexible conceptual framework like green criminology is necessary to study the full array of environmental harms that may shift between criminal and non-criminal behavior over time and place. Further, a green criminology framework is advantageous because it allows researchers to use traditional criminological theories and/or draw upon theories from other fields, such as environmental sociology, when analyzing crimes against the environment (Stretesky et al., 2014).ii While environmental justice is not nested within a traditional criminological theory, it is highly relevant for this study since prosecutors are explicitly mandated by Executive Order 12898 (42 U.S.C. § 4321 [2000]) to take environmental justice considerations into account when prosecuting individuals and corporations for violation of environmental criminal laws (Dighe & Pettus, 2011; Stretesky et al., 2014; White, 2013). As such, we examine hypotheses derived from an environmental justice perspective to analyze the outcomes of 121 plea bargains,iii obtained via a Freedom of Information Act (FOIA) request from the U.S. Department of Justice, between the years 2005 and 2010 against corporations that were prosecuted for environmental crime.iv Environmental Justice The environmental justice (sometimes referred to as environmental equity—see generally Atlas, 2001; Schlosberg, 2007; Rhodes, 2005) movement is a grassroots effort developing out of ! 5! the civil rights and environmental movements (Cole & Foster, 2001; Taylor, 2000). The movement advocates greater levels of environmental protection and an end to policies perpetuating environmental inequality. The movement became prominent in 1983 when Reverend Benjamin Chavis—a prominent civil rights activist—held a six-week protest (which resulted in over 550 arrests) to rally against the siting of a toxic waste landfill in Warren County, North Carolina. The Warren County landfill was constructed to store PCBs that were illegally dumped along hundreds of miles of North Carolina road (Bullard, 1994).v As Bullard (1994) notes, Warren County residents were poor and African American and he therefore argues that the PCBs were being stored in their community because the government viewed it as expendable. The Warren County protests brought issues of environmental justice to the forefront of the environmental and civil rights movements and served as a springboard for subsequent research that revealed that poor and minority communities were overburdened by environmental harms (Bullard, 1990; U.S. General Accounting Office, 1983; United Church of Christ, 1987). This research, and the work of grassroots advocates, eventually influenced the federal government to concern itself with environmental justice. As noted, Executive Order 12898, which President Bill Clinton issued on February 11, 1994, instructed each and every federal agency to make environmental justice a part of its mission of service (42 U.S.C. § 4321 [2000]). Shortly after executive order 12898 (42 U.S.C. § 4321 [2000]) was signed, the U.S. Department of Justice created an environmental justice strategy laying out the way administrative, civil, and criminal legal actions would be carried out (U.S. Department of Justice, 1995). While the DOJ and other federal agencies recognize environmental justice concerns and state that they are actively working toward alleviating the burden of disproportionate impact from environmental harms faced by disadvantaged communities, there is still much work to be ! 6! done. Indeed, in 2010, the EPA and the White House Council on Environmental Quality met for the first time in over a decade and stated that there was still a need for better strategies that incorporate environmental justice concerns into criminal prosecutions for violations of environmental laws (Dighe & Pettus, 2011). While the federal government admits the need for better strategies, no one, to our knowledge, has actually determined whether environmental injustices are occurring in outcomes of criminal prosecution for violation of environmental criminal laws. Some may argue that there is reason to believe environmental injustice is not occurring because federal agencies have been cognizant of environmental justice concerns. For example, each year the EPA releases progress reports and details various civil and criminal legal actions taken against individuals and corporations where environmental justice concerns were a determinant in the punishment levied.vi However, the cases listed in these progress reports are anecdotal and limited to only a handful of the many civil and criminal actions taken each year. These cases are likely to show success stories rather than draw attention to agency problems.vii Therefore, independent research is needed to learn whether environmental justice concerns are being taken into consideration on a larger scale—not just with a select few cases highlighted on a website. Prior Studies There are two main areas of inquiry that follow the EPA’s definition of environmental justice. The first tract of inquiry focuses on determining whether or not poor and minority communities are unduly burdened by environmental hazards because of the communities’ proximity to hazardous waste disposal sites and other polluting facilities. If researchers find that these facilities are located disproportionately in poor and/or minority communities, then there is reason to believe environmental injustice is occurring. A majority of studies in this first tract of ! 7! inquiry provide evidence that poor and minority communities are more likely to be located near hazardous waste disposal sites and/or near a high concentration of polluting facilities (Brown, 1995; Bryant, 1995; Bullard, 1994; Downey, 1998; Mohai & Bunyon, 1992; Pastor, Sadd, & Hipp, 2001; Ringquist, 2005; Stretesky & Hogan, 1998). There are some methodological challenges to these conclusions (e.g., Anderton et al., 1994), but a detailed discussion of these debates is not necessary for the present analysis.viii The second tract of inquiry looks at environmental justice issues within the legal system. Specifically, this research focuses on determining whether corporations located in poor and minority communities are (1) more likely to be subject to regulatory inspections (Konisky, 2009); and (2) punished more severely for violating environmental laws in these communities (Atlas, 2001; Lavelle & Coyle, 1992; Lynch, Stretesky, & Burns, 2004; Mennis, 2005; and Ringquist, 1998). If corporations in poor and/or minority communities are inspected less frequently and punished less severely for violations, then there is reason to believe environmental injustice is occurring within the legal system by perpetuating environmental inequality within these communities. It is this second tract of inquiry which is most relevant to our study. Regarding inspections, Konisky (2009) discovered that regulatory agencies carry out fewer inspections in poorer counties. Further, Konisky (2009) found that while facilities in poor counties are inspected less frequently, there is no evidence suggesting race-based disparities are occurring in the case of inspections. Thus, in Konisky’s (2009) study, the environmental injustice regarding inspections is experienced by class, not race. With respect to studies analyzing legal outcomes assessed against corporations for violating environmental laws, there are only a small number of studies that draw upon an ! 8! environmental justice framework. These studies investigate cases handled in state court or federal court and focus on civil and administrative law outcomes—not criminal law. At the state level, Mennis (2005) found that air-polluting facilities in New Jersey located in areas with high percentages of minorities received fines which were lower than those received by facilities located in predominantly white areas. Also, Lynch, Stretesky, & Burns (2004) examined penalties assessed against oil refineries in Texas between the years 2001 and 2003 for environmental law violations, and found that the penalties assessed against refineries tended to be lower in zip code tracts made up primarily of Hispanic and low-income residents. At the federal level, there are only three studies examining legal outcomes for civil law violations. In 1992, the National Law Journal (hereinafter NLJ) published a study examining the fines assessed against corporations for civil environmental violations and how those fines varied in size based upon how many minorities lived near a hazard site (Lavelle & Coyle, 1992). The NLJ findings claimed that the EPA and the courts engaged in a pattern of discriminatory practices—more specifically, as the number of minorities increased around a hazard site, the size of the fine assessed against a corporation would decrease. In particular, the NLJ articles claimed that penalties in communities predominantly occupied by whites were found to be 46% higher than penalties in zip codes with minority residents ($153,067 vs. $105,028), and penalties in zip codes with high-income residents were 53% higher than penalties in zip codes with low-income residents ($146,993 vs. $95,664).ix The NLJ study stimulated significant controversy and additional research. The two major studies that followed the NLJ article were Evan Ringquist’s (1998) article “A Question of Justice: Equity in Environmental Litigation, 1974-1991” and Mark Atlas’s (2001) follow-up to Ringquist’s article, titled “Rush to Judgment: An Empirical Analysis of Environmental Equity in ! 9! U.S. Environmental Protection Agency Enforcement Actions.” Ringquist’s study adhered to the methods used in the NLJ study as much as possible in an effort to replication NLJ’s findings; however, he improved on the NLJ study by controlling for judicial and corporation status,x among other factors (Ringquist, 1998). Ringquist concluded that there was no negative statistically significant relationship between the percentage of minority residents, income, and the civil fines assessed against corporations for environmental hazards (Ringquist, 1998, 1162). Following Ringquist (1998), Atlas (2001) set out to create the definitive study regarding legal outcomes and environmental justice. Atlas (2001) improved upon Ringquist’s research by using one-mile concentric rings around a hazard site rather than the larger zip codes where the civil violation occurred, to better measure the population affected by the hazard. Further, Atlas (2001) attempted to control for the particular circumstances surrounding each case—arguing that the potential danger posed by the environmental hazard would be the major determinant for receiving a high fine. Atlas (2001) ultimately concluded that there was no negative statistically significant relationship between race, income, and monetary penalties assessed against corporations for environmental hazards.xi Finally, Atlas (2001) found that the facts of a case best predict the outcome of legal actions against corporations for violating environmental law—a finding seen in other studies on criminal justice outcomes (see generally Steffensmeier & Demuth, 2000). At the federal level, both Ringquist (1998) and Atlas (2001) found that environmental injustice was not occurring in civil litigation outcomes involving corporate violations of environmental laws. Atlas (2001) rightly argues that looking only at civil case outcomes does not represent a holistic view of litigation outcomes—researchers also need to look at administrative and criminal case outcomes. ! 10! This study was designed to answer part of Atlas’s call, as we examine criminal case outcomes at the federal level—a context that has not been previously investigated in environmental justice research. Criminal cases have serious implications for issues of environmental justice. First, criminal prosecutions are supposed to be reserved for only the most severe offenses (Black, 1976; O’Hear, 2004). This means that if a corporation violates an environmental law, it can be both civilly and criminally liable; however, the criminal prosecution should only occur if the violation is so severe that a civil penalty would not be enough to compensate victims, pay for cleanup, and serve as an adequate deterrent against future crimes. For instance, 33 U.S.C. §1321(b)(7)(D) is a civil statute allowing federal authorities to claim up to $100,000 per day if an oil spill results from the “gross negligence” of a corporation. On the other hand, the criminal statute 33 U.S.C. § 1319(c)(1)(A) allows federal authorities to claim up to $250,000 per day if a corporation’s oil spill results from criminal negligence. Second, in criminal prosecutions the defendant must be proven to have a specific mindset when they committed the crime, and that mental state along with all other evidence must be proven beyond a reasonable doubt. For instance, 33 U.S.C. § 1319(c)(2)(A) requires that the defendant “knowingly” committed the crime. Knowing intent is generally defined as engaging in conduct where a defendant is practically certain an outcome will occur.!Civil cases, on the other hand, rarely have to prove a mental state, and responsibility must be proven only by a preponderance of the evidence (i.e., something is true more likely than not). Therefore the overall evidentiary burden is much greater in criminal court than in civil court, because of the severity associated with criminal sanctions. ! 11! Third, there is reason to believe that the social ramifications of a criminal conviction and the subsequent labeling of a corporation as “criminal” have a much greater negative societal effect than simply being found liable for violating a civil statute (Weissmann, 2007). With the abovementioned literature and legal context in mind, we have formed two hypotheses to inform the present study. [H1]: Penalties levied against corporate actors that committed an environmental crime will be less severe as the proportion of minorities living near that environmental crime increases. [H2]: Penalties levied against corporate actors that committed an environmental crime will be less severe as the proportion of poor living near the environmental crime increases. Data and Methods To examine the relationship between race, ethnicity, poverty, and penalty outcomes we first collected data about the criminal prosecutions of corporations that occurred in the United States between 2005 and 2010 (n=245).xii Basic case information about environmental prosecutions (case numbers and venues) was obtained via a Freedom of Information Act request from the Environmental Protection Agency for all cases that were forwarded and accepted for criminal prosecution by the Department of Justice. In the United States, the Department of Justice acts as the prosecutor for federal agencies in criminal cases—though DOJ attorneys often collaborate with attorneys from the agencies forwarding cases to them for prosecution. The information from the EPA allowed us to match Department of Justice case numbers to online electronic case files submitted to a legal database called PACER.xiii,xiv The following information was collected from PACER: (1) the original criminal complaint or indictment; (2) plea Northumbria Research Link (www.northumbria.ac.uk/nrl) Deposited in NRL: 4 – March – 2015 Item type: Peer reviewed article Date of acceptance: 16 –February – 2015 Date of publication: In press Citation to published item: Greife, Matthew J., Paul B. Stretesky, Tara O’Conner Shelley and Mark R. Pogrebin. (Forthcoming). Corporate Environmental Crime and Environmental Justice. Criminal Justice Policy Review. DOI: URL to published item: http://cjp.sagepub.com/content/by/year Additional information: ! 12! agreements; (3) the factual basis for the plea agreement; and (4) official sentencing documents.xv Two additional points need to be made about PACER cases. First, these cases follow the typical pattern of adjudication of all criminal cases and are nearly all settled by plea bargain. Second, over half of the criminal cases were violations of 33 U.S.C. 1319 (1) and (2), a knowing or negligent discharge of pollutants into water from a point source. The next most common environmental crime was a violation of 42 U.S.C. 7413 (c) (1), a knowing violation of the Clean Air Act. Other common criminal violations included the illegal disposal of hazardous waste, the illegal use of pesticides, and the discharge of waste on protected lands. Data on the corporations’ numbers of employees and their revenue were obtained from ReferenceUSA and Dunn and Bradstreet, business databases that contain financial and demographic information for over 14 million companies.xvi We first consulted Dunn and Bradstreet, and if company data were missing from that source we then consulted ReferenceUSA as a backup. As a result, we were able to obtain data on nearly every company prosecuted. Finally, community demographics were obtained from the EPA’s Enforcement and Compliance History Online database (ECHO), which estimates demographic characteristics for one-mile radii around various EPA-permitted companies. All demographic data in ECHO that are used in this study are based on the U.S. Census Bureau’s STF 3A files (see http://echo.epa.gov/). While we are interested in race, ethnicity, and poverty, there are a variety of demographic data available in ECHO, including data on education, age, and sex. It would have been ideal to estimate demographic conditions around the hazardous waste sites at the time the company was sentenced, but censuses are carried out every decade, so these data were only collected once every ten years. However, 2009—the year when census data were collected—is relatively close in temporal proximity to the time of sentencing for the cases in our dataset (2005 to 2010). Thus, ! 13! if associations between demographics and monetary penalties do exist, the mismatch in temporal order is likely to introduce a small amount of random error that serves to decrease those associations. Missing Cases Not all criminal cases were posted in PACER because the court will sometimes order documents not to be released for public access. Reasons that cases are not released vary, but prohibited documents may contain things such as trade secrets or names of victims who are minors, among numerous other possibilities. Moreover, sometimes the court clerks simply become overburdened and do not scan in the documents. A total of 98 of the 245 cases we obtained from the EPA contained missing documents because information was not available in electronic format. As a result, these cases are excluded from the sample. In addition, 11 corporations are not listed in the ReferenceUSA or the Dunn and Bradstreet databases and therefore are excluded from the analysis. Finally, 15 crimes occurred at corporate facilities located in areas where nobody was living, and therefore are also excluded from the study. This left a total of 121 cases to analyze, or 49% of the initial sample. Dependent Variable The dependent variable in this analysis represents monetary sanctions assessed by the federal court (in dollars) against corporations that pled guilty to an environmental criminal violation between January 1, 2005, and December 31, 2010. Monetary penalties for these criminal violations ranged from $500 to $6,179,634 across the 121 cases in the analysis. We study monetary sanctions because corporations cannot be imprisoned for violations of criminal law and corporate actors rarely serve prison time for environmental crime.xvii Therefore, monetary penalties are the primary punitive action taken by the government against a corporation ! 14! that violates a criminal law (Stretesky, 2006). We believe that larger financial penalties generally are more indicative of the severity of the crime (Atlas, 2001; Ringquist, 1998; Stretesky, 2006). Thus, we would expect that race and poverty are extralegal factors that should not be related to monetary penalties. If the race, ethnicity, and poverty composition of a community is related to environmental hazards, then potential environmental injustice may be occurring in the prosecution of environmental crimes. Independent Variables The ECHO database provided demographic information for people residing within a one- mile radius of the environmental crime. We chose the one-mile radius in order to remain consistent with previous research examining environmental hazards (e.g., Atlas, 2001; Liu, 2001).xviii The first variable of interest that we examine is the proportion of minorities (Hispanic and African American) living within a one-mile radius of where the environmental crime occurred. We examine the total proportion of minorities because environmental justice theories do not distinguish between the discrimination these two groups might face, and both are generally likely to be faced with higher levels of environmental hazards in their communities. Moreover, this variable is consistent with the work of Atlas (2001), who examined civil and administrative penalties. To compute the proportion of minorities in an area we added the number of African Americans and Hispanics living within one mile of the environmental crime together, and then divided by the total number of people residing within one mile. The second variable of interest that we examine is poverty. Consistent with previous environmental justice research, it is the poor who are more likely to be exposed to environmental hazards. Thus, the proportion of households that have combined annual incomes below the poverty line and are located within one mile of an environmental crime are examined in this ! 15! analysis. To compute the variable proportion poverty we divided the number of residents in poverty within one mile of the environmental crime and then divided by the population living within one mile. Control Variables In addition to environmental justice concerns, we control for additional variables that may impact penalty outcomes. Specifically, we control for company characteristics and case characteristics. Company characteristics impact criminal penalties because larger companies can afford to pay higher penalties. Indeed, 18 U.S.C. § 3572 allows prosecutors and judges to levy fines that take into account the defendant’s financial situation, its number of employees, independent actions taken by the corporation to assist in cleanup, and the overall cooperation of the corporate defendant regarding the environmental hazard (18 U.S.C. § 3572(a)(1)-(8)).xix Moreover, 18 U.S.C. § 3573 even allows for modification or remission of fines assessed against a corporate defendant if the fine becomes too cumbersome to pay. This is demonstrated in U.S. v. ECO Finishing Company. In this case the prosecutors openly stated in the plea agreement (subsection “Sentencing Position of the United States,” pages 8-10) that the maximum fine they could assess against the defendant was incredibly high in light of the actual crime. Therefore, the fine assessed needed to be crafted in a way that was punitive, but also feasible, so as to not ruin the business. With this in mind, we control for (1) annual corporate sales, and (2) the number of employees working for corporate defendants. Annual corporate sales (in millions of dollars) were collected from ReferenceUSA and Dunn and Bradstreet for the company being charged with a criminal violation.xx The number of employees was also gathered from ReferenceUSA and ! 16! Dunn and Bradstreet, and represents the total number of employees in the corporation charged with a crime. As company sales and employees increase, we hypothesize that monetary penalties will also increase. Any analysis of penalty outcomes in law must also attempt to control for case characteristics—often referred to by lawyers as “the facts of a case.” More specifically, we control for (1) offense severity, differentiating between a felony and a misdemeanor prosecution; (2) how many aggravating circumstances exist in each case; and (3) whether the corporate defendant was fined civilly or criminally prior to the prosecution currently being analyzed. With these case characteristics in mind, we first created a dummy variable to differentiate between felonies (coded as “1”) and misdemeanors (coded as “0”). Every environmental statute that prescribes criminal sanctions distinguishes between felony and misdemeanor crimes. Generally, felony charges are reserved for the most severe violations of criminal law, while misdemeanor charges are for more minor violations. For instance, 18 U.S.C. § 1319(c)(2)(A) is a felony statute and allows for a punishment up to $500,000 for each violation, while 33 U.S.C. § 1319(c)(1)(A) is a misdemeanor statute and only allows for a punishment up $250,000 for each violation. Therefore, we expect that if a case is prosecuted as a felony, this will be directly related to its incurring a higher fine. Another important case characteristic involves aggravating circumstances. An aggravating factor is “any circumstance attending the commission of a ‘crime’ or ‘tort’ which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself” (Black, 1991). It is important to keep in mind that federal sentencing guidelines are no longer mandatory but merely advisory, per the Supreme Court in U.S. v. Booker (2005). Prior to the Booker ruling, courts and prosecutors relied ! 17! upon the mandatory sentencing guidelines put forward by the U.S. Federal Probation Office. Though the sentencing guidelines are no longer mandatory, courts and prosecutors still rely upon them to determine the appropriate fines to assess against corporations that commit environmental crimes. The full list is found in statutory provisions U.S.S.G. § 2Q1.1 through § 2Q1.6. The following are some examples of aggravating circumstances: (1) actual release of a regulated substance;xxi (2) violation of permit requirements;xxii (3) continuous release of a regulated substance;xxiii and (4) release of a regulated substance without a permit.xxiv Each PACER document listed the aggravating circumstances associated with the case. We count the total number of aggravating circumstances and then use those values as a proxy for case seriousness. The number of aggravating circumstances ranges from 0 to 6 (!=3). The greater the number of aggravating circumstances,xxv the higher the fine should be. Our final case characteristic is the number of previous corporate violations. Lynch, Stretesky, & Burns (2004) argue that a corporation’s criminal history is one possible penalty predictor, such that violations in the past make future violations more likely. As discussed above, environmental crime statutes require that prior history be a factor in determining penalties. As a result, we code for the past violation history of corporate defendants by counting the number of previous administrative, criminal, and civil violations. This information is reported by the EPA in its public database and was reported in PACER. Prior violations ranged between 0 and 9.xxvi Analysis and Results To carry out our analysis of monetary fines, we examine the relationship between minority composition, poverty, and monetary penalties for the one-mile radii surrounding the locations of the criminal violations. As indicated by our hypotheses, an inverse association between criminal monetary violations and fines indicates that when environmental crimes occur ! 18! in minority and poor areas, the courts do not punish those crimes as severely. Such a finding would be indicative of environmental injustice. To estimate the relationships between demographic characteristics and penalty amounts we first examine mean and median relationships between minority, poverty, and penalty amounts. Next, we examine relationships controlling for company and case characteristics through ordinary least squares (OLS) regression analysis. OLS is an appropriate statistical technique that can be used to estimate linear associations between interval/ratio level variables. In the present analysis, monetary penalties, proportion minority, and proportion in poverty represent ratio level variables. Another advantage of OLS is that it allows us to estimate the effects of variables of interest and controls simultaneously to rule out potential alternative explanations for environmental injustice that may also explain variation in penalty outcomes. [TABLE 1 ABOUT HERE] To begin, it is worth examining average fines and the average proportion of poor and minority individuals living within one mile of each criminal violation. This information is included in Table 1. Table 1 demonstrates that while the demographic variables (proportion in poverty and proportion minority) are relatively normally distributed across the one-mile-radius areas surrounding environmental violations, the dependent variable (penalty amount) is significantly skewed, as indicated by the large difference between the mean ($935,559) and median ($100,000) penalties. This skewedness contributes to the non-normally distributed residuals in the OLS models, which violate a primary statistical assumption. Thus, we transformed the dependent variable (as did Atlas, 2001) to its natural logarithm to improve the normality of the residuals. After the transformation of the penalty variable, the residuals in the regression models were normally distributed and so no further corrections were warranted. ! 19! [TABLE 2 ABOUT HERE] Table 2 displays Pearson’s produce-moment correlations for the proportion minority, proportion in poverty, and the natural log of the penalty amount (the full correlation matrix is Appendix A). Both relationships were negative, suggesting that there could be some potential merit to the environmental injustice hypotheses (H1 and H2). However, these relationships are not statistically significant. Specifically, the correlation between proportion minority and penalty amount is –0.077, which represents a very weak relationship between the two variables. In addition, the correlation between poverty and penalties is –0.051. Again this relationship is very weak. Therefore, we suggest that in the case of bivariate relationships there is little indication of environmental injustice when it comes to criminal fines. Before turning to the multivariate findings, it is important to point out that we encountered problems with hetroskedasticityxxviiand multicollinearity.xxviii This occurred because the proportions of minority and poor residents are highly correlated (see Appendix A). As a result, the demographic variables were analyzed in two separate series of models (Tables 3 and 4). When poverty and minority status variables are entered into different models heteroskedasticity and multicollinearity do not appear to influence standard errors or coefficient estimates. [TABLE 3 ABOUT HERE] Our regression results are displayed in Table 3. These results indicate that there is no support for our first hypothesis [H1]. Though the coefficients for the variable measuring the proportion of minority residents is in the predicted direction it is not statistically significant in any model estimated. ! 20! While not the focus of our analyses, the results do indicate that corporate revenue, aggravating factors, and felony status are the significant predictors of penalty amounts in criminal prosecutions. In both models 2 and 3, we see that as corporate revenue increases, the overall fine increases as well. This relationship is exactly what we would expect if prosecutors rely upon 18 U.S.C. § 3573 when they are crafting fines in a plea agreement. Further, we also find that corporations prosecuted for a felony rather than a misdemeanor generally receive a larger fine. This relationship is of no surprise because felony statutes—as we discussed above— generally have larger fines associated with them. Finally, we find that as the number of aggravating factors increase, so does the amount of the penalty (p<0.01). [TABLE 4 ABOUT HERE] Turning to our second hypothesis [H2], our results do not suggest a statistically significant relationship between populations below the poverty line and fines. As in Table 2, the coefficients are in the predicted direction. This suggests that environmental injustice is not a serious problem in criminal cases. As is the case in Table 3, the results in models 5 and 6 also show that corporate revenue, aggravating factors, and felony status are significant predictors in criminal prosecutions. Discussion and Conclusion This study is the first of its kind to analyze environmental justice concerns in the context of criminal penalties and therefore moves beyond the basic descriptive statistics often presented by traditional legal scholars (Brickey, 2001; Cohen, 1991; O’Hear, 2004). This research also contributes to the handful of studies (Atlas, 2001; Ringquist, 1998) on civil outcomes and lends support to the trends observed in those studies—namely, that we are unable to document the existence of systemic environmental injustice, which suggests that prosecutors take the ! 21! environmental justice mandate seriously (at least in their plea negotiations regarding penalties). That is, consistent with prior environmental justice research examining civil and administrative fines (Atlas, 2001; Ringquist, 1998), we find no statistically significant relationships between fines, minority status, and poverty. In fact, our results suggest that crime severity is the best predictor of penalties for corporations violating environmental criminal statutes. The argument that the severity of a crime is the best predictor of an outcome is traditional in legal scholarship and is a doctrine consistently taught in law school. Our results are right in line with this traditional way of thinking. Like Atlas (2001) and Ringquist (1998) we do not find any evidence of systemic environmental injustice. However, based on the wider body of environmental justice scholarship we do not argue that there is an absence of environmental injustice in disadvantaged communities. Indeed, as we have pointed out, there are a significant number of empirical and case studies that suggest the opposite is true (Bullard, 1990). For example, it may be the case that more severe crimes occur in communities that are composed primarily of disadvantaged residents. If this is true, it could impact the analysis by artificially increasing the penalty amounts in poor and minority areas relative to more white and affluent areas that experience fewer environmental crimes. There is empirical support for this supposition. Specifically, Table 1 reports that environmental crimes occur in areas where, on average, 29% of the residents live in poverty. Thus, a greater proportion of residents living near these crimes are poor than in the U.S. as a whole (i.e., 14% of all U.S. residents live in poverty). This suggests that it simply be the case that environmental injustice occurs because criminal corporations target the most disadvantaged neighborhoods. Future research should examine this potential hypothesis. ! 22! This study is not without limitations. First, because there are few criminal prosecutions for environmental violations at the federal level, we examine relatively few cases. Moreover, data on corporate crime are often hard to gather, and while we were able to pull many case files, there were also many that were not released to the public. Thus, a number of cases were also absent from our analysis, which limited the generalizability of our findings, though it is unclear how missing data might impact the strength of the associations between race, ethnicity, and penalties. A second limitation is that we do not know anything about the processes that led to the detection of the environmental crimes that occurred, or about whether environmental injustices manifested themselves in that arena. Third, we recognize that some prosecutions were declined by DOJ and left to the states to prosecute if they chose to do so. Not only do we not know the outcomes of those cases and how they compared to federal outcomes, but we also do not know why these cases were declined by the federal authorities. ! 23! References Anderton, D., Anderson A., Oakes, J. M., & Fraser, M. (1994). Environmental Equity: The Demographics of Dumping. Demography, 31, 229-248. Atlas, M. (2001). Rush to Judgment: An Empirical Analysis of Environmental Equity in U.S. Environmental Protection Agency Enforcement Actions. Law & Society Review, 35, 633- 682. Barker, D. (2002). Environmental Crimes, Prosecutorial Discretion, and the Civil/Criminal Line. Virginia Law Review, 88, 1387-1431. Begley, S. (1980). Toxic Waste Still Pollutes Roadways. Newsweek, October 27, 25. Black, D. J. (1976). The Behavior of Law. New York: Academic Press. Black, D. J. (2011). Moral Time. New York, NY: Oxford University Press. Black, H. (1991). Black’s Law Dictionary, 6th ed. St. Paul, MN: West Publishing. Brickey, K. F. (1996). Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory. Tulane Law Review, 71, 487-521. Brickey, K. F. (2001). Charging Practices in Hazardous Waste Crime Prosecutions. Ohio State Law Journal, 62, 1077-1144. Brown, P. (1995). Race, Class and Environmental Health: A Review and Systemization of the Literature. Environmental Research, 69, 15-30. Bryant, B. (1995). Environmental Justice: Issues, Policies, and Solutions. Washington, DC: Island Press. Bullard, R. D. (1983). Solid-Waste Sites and the Black Houston Community. Sociological Inquiry, 53, 273-288. Bullard, R. D. (1990). Dumping in Dixie: Race, Class and Environmental Equality. Boulder, CO: Westview Press. Bullard, R. D. (1994). Environmental Justice for All. In R. D. Bullard (ed.), Unequal Protection: Environmental Justice and Communities of Color, 3-22. San Francisco, CA: Sierra Club. Cohen, M. (1991). Environmental Crime and Punishment: Legal/Economic Theory and Empirical Evidence on Enforcement. Journal of Criminal Law and Criminology, 82, 1054- 1108. ! 24! Cole, L., & Foster, S. (2001). From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement. New York, NY: New York University Press. Dighe, K., & Pettus, L. (2011). Environmental Justice in the Context of Environmental Crimes. United States Attorney Bulletin, 59, 3-14. Downey, L. (1998). Environmental Injustice: Is Race or Income a Better Predictor? Social Science Quarterly, 79, 766-778. Greife, M. J., & Stretesky, P. B. (2013). Crude Laws: Treadmill of Production and State Variations in Civil and Criminal Liability for Oil Discharges in Navigable Waters. In N. South & A. Brisman (eds.), Routledge International Handbook of Green Criminology, 150- 166 Farnham, UK: Ashgate. Harrell, M., Lisa, J., & Votaw, C. (2009). Federal Environmental Crime: A Different Type of White Collar Offender. Natural Resources and Environment, 23, 3-6. Hillyard, P., & Tombs, S. (2007). From ‘Crime’ to Social Harm? Crime, Law and Social Change, 48, 9-25. Konisky, D. M. (2009). Inequities in Enforcement? Environmental Justice and Government Performance. Journal of Policy Analysis and Management, 28, 102-121. Lavelle, J., & Coyle, M. (1992). Unequal Protection: The Racial Divide on Environmental Law. National Law Journal, September 21, 1-12. Lazarus, R. J. (1995). Meeting the Demands of Integration in the Evolution of Environmental Criminal Law: Reforming Environmental Criminal Law. Georgetown Law Review, 83, 2407-2503. Lewis-Beck, M. (1980). Applied Regression: An Introduction. Newbury Park, CA: Sage Publications. Liu, F. (2001). Environmental Justice Analysis: Theories, Methods, and Practice. Boca Raton, FL: Lewis Publishers. Long, M. A., Stretesky, P. B., Lynch, M. J., & Fenwick, E. (2012). Crime in the Coal Industry: Implications for Green Criminology and Treadmill of Production. Organization and Environment, 25(3), 328-346. Lynch, M. J. (1990). The Greening of Criminology: A Perspective on the 1990s. The Critical Criminologist, 2, 3. ! 25! Lynch, M. J., & Stretesky, P.B. (2011). Similarities between Green Criminology and Green Science: Toward a Typology of Green Criminology. International Journal of Comparative and Applied Criminal Justice, 35, 293-306. Lynch, M. J., Stretesky, P. B., & Burns, R. G. (2004). Slippery Business: Race, Class and Legal Determinants of Penalties against Petroleum Refineries. Journal of Black Studies, 34, 421- 440. Mann, K. (1992). Punitive Civil Sanctions: The Middle Ground between Criminal and Civil Law. Yale Law Review, 101, 1795-1873. Mennis, J. L. (2005). The Distribution and Enforcement of Air Polluting Facilities in New Jersey. The Professional Geographer, 57, 411-421. Meyers, G. H. (2000). Developing a Cohesive Front against Environmental Injustice. Baltimore Law Review, 8, 26-50. Mohai, P., & Bunyon, B. (1992). Environmental Racism: Reviewing the Evidence. In B. Bunyon and P. Mohai (eds.), Race and the Incidence of Environmental Hazards: A Time for Discourse, 163-176. Boulder, CO: Westview Press. O’Hear, M. M. (2004). Sentencing the Green-Collar Offender: Punishment, Culpability and Environmental Crime. Journal of Criminal Law and Criminology, 95, 133-276. Pastor, M., Sadd, J., & Hipp, J. (2001). Which Came First? Toxic Facilities, Minority Move-In and Environmental Justice. Journal of Urban Affairs, 23(1), 1-21. Rhodes, E. (2005). Environmental Justice in America: A New Paradigm. Bloomington, IN: Indiana University Press. Ringquist, E. J. (1998). A Question of Justice: Equity in Environmental Litigation, 1974-1991. Journal of Politics, 60, 1148-1165. Ringquist, E. J. (2005). Assessing Evidence of Environmental Inequities: A Meta-Analysis. Journal of Policy Analysis and Management, 24, 223-247. Schelly, D., & Stretesky, P. B. (2009). An Analysis of the Path of Least Resistance Argument in Three Environmental Justice Success Cases. Society and Natural Resources, 22, 369-380. Schlosberg, D. (2007). Defining Environmental Justice: Theories, Movements, and Nature. Oxford: Oxford University Press. Situ, Y., & Emmons, D. (2000). Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment. Thousand Oaks, CA: Sage Publications. ! 26! Steffensmeier, D., & Demuth, S. (2000). Ethnicity Effects on Sentence Outcomes in Felony Cases: Comparisons among White, Black, and Hispanic Defendants. Report to the American Statistical Association and Bureau of Justice Statistics. Stern, R. (2014). The Political Logic of China’s New Environmental Courts. The China Journal, 72, 53-74. Stretesky, P. B. (2006). Corporate Self Policing and the Environment. Criminology, 44, 671-708. Stretesky, P. B. (2008). The Neglect of Race and Class in Environmental Crime Research. In M. J. Lynch & R. Paternoster (eds.), Racial Divide: Racial and Ethnic Bias in the Criminal Justice System, 241-260. New York, NY: Criminal Justice Press. Stretesky, P. B., & Hogan, M. J. (1998). Environmental Justice: An Analysis of Superfund Sites in Florida. Social Problems, 45, 268-293. Stretesky, P. B., Long, M. A., & Lynch, M. J. (2013). Does Environmental Enforcement Slow the Treadmill of Production? The Relationship between Large Monetary Penalties, Ecological Disorganization and Toxic Releases within Offending Corporations. Journal of Crime and Justice, 36, 233-247. Stretesky, P. B., Long, M. A., & Lynch, M. J. (2014). The Treadmill of Crime: Political Economy and Green Criminology. New York, NY: Routledge. Stretesky, P. B., & Lynch, M. J. (2003). The Meaning of Green: Contrasting Criminological Perspectives. Theoretical Criminology, 7, 217-238. Sutherland, E. (1949). White Collar Crime, New York, NY: Holt, Rinehart & Winston. Taylor, D. E. (2000). The Rise of the Environmental Justice Paradigm: Injustice Framing and the Social Construction of Environmental Discourses. American Behavioral Scientist, 43(4), 508-580. Uhlmann, D. (2014). Prosecutorial Discretion and Environmental Crime. Harvard Environmental Law Review, 38, 159-216. United Church of Christ. (1987). Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites. New York, NY: Commission for Racial Justice, United Church of Christ. United States v. Booker. (2005). 543 US 220. United States v. Carl and Don Frazier. (2009). W.D. Michigan, 2:09-CR-14. United States v. Eco Finishing Company. (2006). CR06-152 PAM, District Court of Minnesota. ! 27! United States v. Techmetals Inc. (2009). S.D. Ohio, 3:08-CR-142. United States v. White. (1991). 766 F.Supp. 873. U.S. Department of Justice. (1995). Environmental Justice Strategy. http://www.justice.gov/ej/docs/DOJ_Environmental_Justice_Strategy.pdf U.S. General Accounting Office. (1983). Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities. Washington, DC: U.S. General Accounting Office. Weissmann, A. (2007). Rethinking Criminal Corporate Liability. Indiana Law Journal, 82, 412- 451. Williams, R. (1999). The Contested Terrain of Environmental Justice Research: Community as Unit of Analysis. The Social Science Journal, 36, 313-328. White, R. (2003). Environmental Issues and the Criminological Imagination. Theoretical Criminology, 7, 483-506. White, R. (2008). Crimes against Nature: Environmental Criminology and Ecological Justice. Portland, OR: Willan Publishing. White, R. (2013). The Conceptual Contours of Green Criminology. In R. Walters, D. Solomon, & T. Wyatt (eds.), Emerging Issues in Green Criminology: Exploring Power, Justice and Harm, 17-33. New York, NY: Palgrave Macmillan. White, R., & Heckenberg, D. (2014). Green Criminology: An Introduction to the Study of Environmental Harm. New York, NY: Routledge. ! 28! TABLE&1.&AVERAGE&(MEAN&AND&MEDIAN)&FINES,&PROPORTION&OF&MINORITY&RESIDENTS&LIVING&WITHIN&1&MILE&OF&VIOLATION,&AND& PROPORTION&OF&RESIDENTS&LIVING&IN&POVERTY&WITHIN&1&MILE&OF&VIOLATION,&N=121& & Penalty(Amount( Proportion(Minority( Proportion(in( Poverty(( & & & & Mean! $935,559! 0.23! 0.29! Median! $100,000! 0.12! 0.30! & & ! 29! TABLE&2.&BIVARIATE&CORRELATIONS&BETWEEN&FINES,&PROPORTION&OF&MINORITY&RESIDENTS,&AND&PROPORTION&OF&RESIDENTS&LIVING&IN& POVERTY,&N=121& & Monetary(Penalty( %(Minority( %(Below(the(Poverty(Line( Monetary(Penalty( !!1.000! ! ! Proportion(Minorities( –0.077! !!1.000! ! Proportion(in(Poverty( –0.051! !!0.508***! !!1.000! *p<0.10;!**p<0.05;!***p<0.01! & & ! 30! TABLE&3.&ORDINARY&LEAST&SQUARES&REGRESSION&PREDICTING&THE&NATURAL&LOG&OF&CORPORATE&FINES,&N=121& ! Model&1& Model&2& Model&3& ! B! SE! ! B! SE! ! B! SE! ! Proportion(Minority( –0.62! 0.74! ! –0.68! 0.72! ! –0.93! 0.57! ! Corporate(Revenue((in(millions)( ! ! ! !!1.36*10–5! 5.12*10–6! ***! !!1.07*10–5! 4.07*10–6! **! No.(Employees((in(thousands)( ! ! ! –2.58*10–4! 6.65*10–4! ! –2.95*10–4! 5.26*10–4! ! Aggravating(Factors( ! ! ! ! ! ! !!0.81! 0.12! ***! Felony((1=yes)( ! ! ! ! ! ! !!1.10! 0.29! ***! No.(Prior(Actions( ! ! ! ! ! ! !!0.05! 0.05! ! ! ! ! ! ! ! ! ! ! ! Constant& 11.86! 0.28! ! 11.81! 0.34! ! !!8.70! 0.42! ! ! ! ! ! ! ! ! ! ! ! R2& !!0.01! ! ! !!0.06! ! ! !!0.44! ! ! *p<0.10;!**p<0.05;!***p<0.01! ! ! 31! ! TABLE&4.&ORDINARY&LEAST&SQUARES&REGRESSION&PREDICTING&THE&NATURAL&LOG&OF&CORPORATE&FINES,&N=121& ! Model&1& Model&2& Model&3& ! B! SE! ! B! SE! ! B! SE! ! Proportion(Below(Poverty( –0.75! 1.32! ! –0.75! 1.29! ! –0.58! 1.02! ! Corporate(Revenue((in(millions)( ! ! ! !!1.34*10–5! 5.13*10–6! **! !!1.05*10–5! 4.11*10–6! **! No.(Employees((in(thousands)( ! ! ! –2.24*10–4! 6.67*10–4! ! –2.92*10–4! 5.33*10–4! ! Aggravating(Factors( ! ! ! ! ! ! !!0.81! 0.12! ***! Felony((1=yes)( ! ! ! ! ! ! !!1.05! 0.29! ***! No.(Prior(Actions( ! ! ! ! ! ! !!0.05! 0.05! ! ! ! ! ! ! ! ! ! ! ! Constant& 11.85! 0.35! ! 11.78! 0.34! ! !!8.59! 0.46! ! ! ! ! ! ! ! ! ! ! ! R2& !!0.01! ! ! !!0.06! ! ! !!0.43! ! ! *p<0.10;!**p<0.05;!***p<0.01! ! ! ! 32! APPENDIX&A.&BIVARIATE&CORRELATIONS&FOR&ALL&VARIABLES,&N=121& ! 1( 2( 3( 4( 5( 6( 7( 8( 1.(Monetary(Penalty( !!1.00! ! ! ! ! ! ! ! 2.(Proportion(Minority( –0.07! !!1.00! ! ! ! ! ! ! 3.(Proportion(Below(Poverty( –0.05! !!0.51***! !!1.00! ! ! ! ! ! 4.(Corporate(Revenue( !!0.23**! !!0.03! !!0.01! 1.00! ! ! ! ! 5.(No.(Employees( !!0.01! !!0.01! !!0.06! 0.18**! !!1.00! ! ! ! 6.(Aggravating(Factors( !!0.56***! !!0.01! –0.02! 0.06! !!0.09! 1.00! ! ! 7.(Felony! !!0.38***! !!0.10! !!0.00! 0.06! –0.11! 0.21**! !!1.00! ! 8.(No.(Prior(Actions( !!0.18*! !!0.00! –0.05! 0.17**! –0.00! 0.17*! –0.02! !!1.00! *p<0.10;!**p<0.05;!***p<0.01! ! 33! Endnotes !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! i This is the definition of environmental justice promoted by the U.S. Environmental Protection Agency (see http://www.epa.gov/environmentaljustice/). ii The all-encompassing nature of green criminology has also stunted theoretical development. Lynch and Stretesky (2011, 293) note that “the multifaceted, issue-driven approach to the field” has slowed theory building in green criminology. iii As is the case with index crimes, criminal cases rarely go to trial. Indeed, of the cases we examine, none were settled at trial. Instead these cases were subject to plea bargains that were negotiated between the prosecution and defense. These plea bargains were then subject to the approval of the judge. As a result, we are unable to draw any conclusions about environmental penalties associated with trial outcomes.! iv In the United States, the Environmental Protection Agency does not file criminal charges against potential offenders. Instead, criminal prosecutions are handled by the U.S. Department of Justice. v The protest began when the Ward Transformer Company intentionally sprayed 31,000 gallons of polychlorinated biphenyls (PCBs), which are known to cause birth defects, liver disorders, and skin disorders, along approximately 270 miles of state roads in North Carolina (Begley, 1980; Bullard, 1990). vi http://www.justice.gov/ej/. vii http://www.justice.gov/ej/docs/env_enforcement-2427806-v2- ej_doj_annual_report_fy2013.pdf. viii For example, there is a “chicken and egg” critique to levy at studies finding environmental injustice: did the facilities arrive first and the poor and minority communities follow, or was it ! 34! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! the other way around? Either scenario has direct implications for determining how an environmental injustice is actually manifesting itself. In addition, some scholars argue that this is a false debate and that regardless of why the pattern exists it still represents an injustice, as institutional discrimination (e.g., bank lending practices, structural inequality) likely produced the pattern of where vulnerable populations settle (see Rhodes, 2005). ix This was quite an accusation, and as a result it attracted the attention of the EPA, Congress, and academia. The EPA initiated an internal review of its practices and now publishes annual public reports regarding concerns of environmental justice and enforcement. The DOJ has effectively mimicked the EPA and also reports on civil and criminal actions it takes, and how those actions are in furtherance of environmental justice concerns. Congress even launched an inquiry into the EPA and DOJ regarding civil and criminal law enforcement and case prosecution (Brickey, 1996). x Specifically, Ringquist argued that the political party of the presiding judge would influence the plea agreement. Further, he hypothesized that Fortune 500 corporations would receive less harsh punishments than non–Fortune 500 corporations. xi In fact, Atlas (2001) found there was a positive relationship between minority populations surrounding environmental hazards and fines assessed against corporations for environmental law violations. xii Ideally the date range would be longer. In order to obtain court documents the first author had to create a PACER account (see note xvi) and pay 10 cents per page for every document acquired. Some plea agreements were as long as 90 pages. Because the first author paid the fees out of pocket, financial constraints forced a shorter date range. Even so, our date range is ! 35! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! consistent with prior research related to this topic (e.g., Atlas [2001] examined cases from 1985- 1991, a six-year range). xiii If a corporation was referred to the DOJ by the EPA for prosecution and the DOJ declined prosecution, the EPA still provided case information. That information included the state agencies that prosecuted the corporation using state laws as opposed to federal laws. Of the 245 corporate cases prosecuted between 2005 and 2010, seven were prosecuted at the state level. These seven cases were excluded from this analysis. xiv PACER is the name of the electronic database where all case files that are part of any federal legal action are stored for public access. Access is not free and requires a quarterly fee as well as a charge of 10 cents per page for printing/downloading. xv Sometimes these documents are part of a plea agreement and are not in a separate document. xvi Both the ReferenceUSA and Dunn and Bradstreet databases are recognized as accurate reporters of corporate finances, and there are no known reasons to believe the data reported are inaccurate, so the databases serve as worthwhile sources of company information. xvii It should be noted that corporate officers and employees can be imprisoned for violation of environmental laws under the responsible corporate officer doctrine (Lazarus, 1995). xviii For a discussion of why concentric ring measurement is better than using zip codes to measure demographics, see Liu (2001). xix Every plea agreement in this study explicitly states that 18 U.S.C. § 3572 is the statute relied upon to determine appropriate penalties. xx Both databases only report gross revenues. Ideally any analysis would involve using both gross and net revenues, but due to the way the databases report we are able to use only gross revenues. ! 36! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! xxi U.S.S.G. § 2Q1.2(a). xxii U.S.S.C. § 2Q1.2(b)(4). xxiii U.S.S.C. § 2Q1.2(b)(1)(A). xxiv Ibid. xxv Unfortunately we do not know what specific evidence (e.g., test results, expert witness testimony, etc.) is used in determining how many aggravating factors are met, or in determining if a crime is a misdemeanor or a felony. This is important information to know and worthy of future investigation—our case files simply do not make specific reference to evidence used to facilitate prosecutorial decision-making. xxvi In our dataset 30 corporations had at least 1 prior fine for an environmental violation. Specifically, 17 corporations (the majority) had only 1 violation, and 1 corporation had 9 prior violations of environmental laws. The remaining 91 corporations are first-time offenders. xxvii!In this analysis, theoretical reasoning suggests that we pay particular attention to violations of homoscedastic errors. In short, it is possible that Environmental Protection Agency inspectors and Department of Justice prosecutors better monitor larger corporations. This disproportionate monitoring may cause differential error in residuals according to corporate size, and therefore may introduce heteroskedasticity into the model estimates and distort standard errors. An examination of model residuals with respect to company size (employees and annual revenue) suggests that heteroskewdasticity is not a problem for these models. xxviii We also assess the likelihood that multicollinearity may impact model coefficients and standard errors. We did not, however, see any evidence that multicollinearity was a problem, as bivariate correlations (Appendix A) do not appear to exceed 0.26, indicating weak bivariate associations. Moreover, average variance inflation factor (VIF) scores did not exceed 1.13 in any ! 37! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! of the models we estimated. Most of the time these VIF scores were near 1.05. This provides significant evidence that multicollinearity that resulted from a particular combination of variables had little if any impact on model coefficients and standard errors.! ! 28! TABLE&1.&AVERAGE&(MEAN&AND&MEDIAN)&FINES,&PROPORTION&OF&MINORITY&RESIDENTS&LIVING&WITHIN&1&MILE&OF&VIOLATION,&AND& PROPORTION&OF&RESIDENTS&LIVING&IN&POVERTY&WITHIN&1&MILE&OF&VIOLATION,&N=121& & Penalty(Amount( Proportion(Minority( Proportion(in( Poverty(( & & & & Mean! $935,559! 0.23! 0.29! Median! $100,000! 0.12! 0.30! & & ! 29! TABLE&2.&BIVARIATE&CORRELATIONS&BETWEEN&FINES,&PROPORTION&OF&MINORITY&RESIDENTS,&AND&PROPORTION&OF&RESIDENTS&LIVING&IN& POVERTY,&N=121& & Monetary(Penalty( %(Minority( %(Below(the(Poverty(Line( Monetary(Penalty( !!1.000! ! ! Proportion(Minorities( –0.077! !!1.000! ! Proportion(in(Poverty( –0.051! !!0.508***! !!1.000! *p<0.10;!**p<0.05;!***p<0.01! & & ! 30! TABLE&3.&ORDINARY&LEAST&SQUARES&REGRESSION&PREDICTING&THE&NATURAL&LOG&OF&CORPORATE&FINES,&N=121& ! Model&1& Model&2& Model&3& ! B! SE! ! B! SE! ! B! SE! ! Proportion(Minority( –0.62! 0.74! ! –0.68! 0.72! ! –0.93! 0.57! ! Corporate(Revenue((in(millions)( ! ! ! !!1.36*10–5! 5.12*10–6! ***! !!1.07*10–5! 4.07*10–6! **! No.(Employees((in(thousands)( ! ! ! –2.58*10–4! 6.65*10–4! ! –2.95*10–4! 5.26*10–4! ! Aggravating(Factors( ! ! ! ! ! ! !!0.81! 0.12! ***! Felony((1=yes)( ! ! ! ! ! ! !!1.10! 0.29! ***! No.(Prior(Actions( ! ! ! ! ! ! !!0.05! 0.05! ! ! ! ! ! ! ! ! ! ! ! Constant& 11.86! 0.28! ! 11.81! 0.34! ! !!8.70! 0.42! ! ! ! ! ! ! ! ! ! ! ! R2& !!0.01! ! ! !!0.06! ! ! !!0.44! ! ! *p<0.10;!**p<0.05;!***p<0.01! ! ! 31! ! TABLE&4.&ORDINARY&LEAST&SQUARES&REGRESSION&PREDICTING&THE&NATURAL&LOG&OF&CORPORATE&FINES,&N=121& ! Model&1& Model&2& Model&3& ! B! SE! ! B! SE! ! B! SE! ! Proportion(Below(Poverty( –0.75! 1.32! ! –0.75! 1.29! ! –0.58! 1.02! ! Corporate(Revenue((in(millions)( ! ! ! !!1.34*10–5! 5.13*10–6! **! !!1.05*10–5! 4.11*10–6! **! No.(Employees((in(thousands)( ! ! ! –2.24*10–4! 6.67*10–4! ! –2.92*10–4! 5.33*10–4! ! Aggravating(Factors( ! ! ! ! ! ! !!0.81! 0.12! ***! Felony((1=yes)( ! ! ! ! ! ! !!1.05! 0.29! ***! No.(Prior(Actions( ! ! ! ! ! ! !!0.05! 0.05! ! ! ! ! ! ! ! ! ! ! ! Constant& 11.85! 0.35! ! 11.78! 0.34! ! !!8.59! 0.46! ! ! ! ! ! ! ! ! ! ! ! R2& !!0.01! ! ! !!0.06! ! ! !!0.43! ! ! *p<0.10;!**p<0.05;!***p<0.01! ! ! ! 32! APPENDIX&A.&BIVARIATE&CORRELATIONS&FOR&ALL&VARIABLES,&N=121& ! 1( 2( 3( 4( 5( 6( 7( 8( 1.(Monetary(Penalty( !!1.00! ! ! ! ! ! ! ! 2.(Proportion(Minority( –0.07! !!1.00! ! ! ! ! ! ! 3.(Proportion(Below(Poverty( –0.05! !!0.51***! !!1.00! ! ! ! ! ! 4.(Corporate(Revenue( !!0.23**! !!0.03! !!0.01! 1.00! ! ! ! ! 5.(No.(Employees( !!0.01! !!0.01! !!0.06! 0.18**! !!1.00! ! ! ! 6.(Aggravating(Factors( !!0.56***! !!0.01! –0.02! 0.06! !!0.09! 1.00! ! ! 7.(Felony! !!0.38***! !!0.10! !!0.00! 0.06! –0.11! 0.21**! !!1.00! ! 8.(No.(Prior(Actions( !!0.18*! !!0.00! –0.05! 0.17**! –0.00! 0.17*! –0.02! !!1.00! *p<0.10;!**p<0.05;!***p<0.01! ! 33! Endnotes !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! i This is the definition of environmental justice promoted by the U.S. Environmental Protection Agency (see http://www.epa.gov/environmentaljustice/). ii The all-encompassing nature of green criminology has also stunted theoretical development. Lynch and Stretesky (2011, 293) note that “the multifaceted, issue-driven approach to the field” has slowed theory building in green criminology. iii As is the case with index crimes, criminal cases rarely go to trial. Indeed, of the cases we examine, none were settled at trial. Instead these cases were subject to plea bargains that were negotiated between the prosecution and defense. These plea bargains were then subject to the approval of the judge. As a result, we are unable to draw any conclusions about environmental penalties associated with trial outcomes.! iv In the United States, the Environmental Protection Agency does not file criminal charges against potential offenders. Instead, criminal prosecutions are handled by the U.S. Department of Justice. v The protest began when the Ward Transformer Company intentionally sprayed 31,000 gallons of polychlorinated biphenyls (PCBs), which are known to cause birth defects, liver disorders, and skin disorders, along approximately 270 miles of state roads in North Carolina (Begley, 1980; Bullard, 1990). vi http://www.justice.gov/ej/. vii http://www.justice.gov/ej/docs/env_enforcement-2427806-v2- ej_doj_annual_report_fy2013.pdf. viii For example, there is a “chicken and egg” critique to levy at studies finding environmental injustice: did the facilities arrive first and the poor and minority communities follow, or was it ! 34! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! the other way around? Either scenario has direct implications for determining how an environmental injustice is actually manifesting itself. In addition, some scholars argue that this is a false debate and that regardless of why the pattern exists it still represents an injustice, as institutional discrimination (e.g., bank lending practices, structural inequality) likely produced the pattern of where vulnerable populations settle (see Rhodes, 2005). ix This was quite an accusation, and as a result it attracted the attention of the EPA, Congress, and academia. The EPA initiated an internal review of its practices and now publishes annual public reports regarding concerns of environmental justice and enforcement. The DOJ has effectively mimicked the EPA and also reports on civil and criminal actions it takes, and how those actions are in furtherance of environmental justice concerns. Congress even launched an inquiry into the EPA and DOJ regarding civil and criminal law enforcement and case prosecution (Brickey, 1996). x Specifically, Ringquist argued that the political party of the presiding judge would influence the plea agreement. Further, he hypothesized that Fortune 500 corporations would receive less harsh punishments than non–Fortune 500 corporations. xi In fact, Atlas (2001) found there was a positive relationship between minority populations surrounding environmental hazards and fines assessed against corporations for environmental law violations. xii Ideally the date range would be longer. In order to obtain court documents the first author had to create a PACER account (see note xvi) and pay 10 cents per page for every document acquired. Some plea agreements were as long as 90 pages. Because the first author paid the fees out of pocket, financial constraints forced a shorter date range. Even so, our date range is ! 35! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! consistent with prior research related to this topic (e.g., Atlas [2001] examined cases from 1985- 1991, a six-year range). xiii If a corporation was referred to the DOJ by the EPA for prosecution and the DOJ declined prosecution, the EPA still provided case information. That information included the state agencies that prosecuted the corporation using state laws as opposed to federal laws. Of the 245 corporate cases prosecuted between 2005 and 2010, seven were prosecuted at the state level. These seven cases were excluded from this analysis. xiv PACER is the name of the electronic database where all case files that are part of any federal legal action are stored for public access. Access is not free and requires a quarterly fee as well as a charge of 10 cents per page for printing/downloading. xv Sometimes these documents are part of a plea agreement and are not in a separate document. xvi Both the ReferenceUSA and Dunn and Bradstreet databases are recognized as accurate reporters of corporate finances, and there are no known reasons to believe the data reported are inaccurate, so the databases serve as worthwhile sources of company information. xvii It should be noted that corporate officers and employees can be imprisoned for violation of environmental laws under the responsible corporate officer doctrine (Lazarus, 1995). xviii For a discussion of why concentric ring measurement is better than using zip codes to measure demographics, see Liu (2001). xix Every plea agreement in this study explicitly states that 18 U.S.C. § 3572 is the statute relied upon to determine appropriate penalties. xx Both databases only report gross revenues. Ideally any analysis would involve using both gross and net revenues, but due to the way the databases report we are able to use only gross revenues. ! 36! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! xxi U.S.S.G. § 2Q1.2(a). xxii U.S.S.C. § 2Q1.2(b)(4). xxiii U.S.S.C. § 2Q1.2(b)(1)(A). xxiv Ibid. xxv Unfortunately we do not know what specific evidence (e.g., test results, expert witness testimony, etc.) is used in determining how many aggravating factors are met, or in determining if a crime is a misdemeanor or a felony. This is important information to know and worthy of future investigation—our case files simply do not make specific reference to evidence used to facilitate prosecutorial decision-making. xxvi In our dataset 30 corporations had at least 1 prior fine for an environmental violation. Specifically, 17 corporations (the majority) had only 1 violation, and 1 corporation had 9 prior violations of environmental laws. The remaining 91 corporations are first-time offenders. xxvii!In this analysis, theoretical reasoning suggests that we pay particular attention to violations of homoscedastic errors. In short, it is possible that Environmental Protection Agency inspectors and Department of Justice prosecutors better monitor larger corporations. This disproportionate monitoring may cause differential error in residuals according to corporate size, and therefore may introduce heteroskedasticity into the model estimates and distort standard errors. An examination of model residuals with respect to company size (employees and annual revenue) suggests that heteroskewdasticity is not a problem for these models. xxviii We also assess the likelihood that multicollinearity may impact model coefficients and standard errors. We did not, however, see any evidence that multicollinearity was a problem, as bivariate correlations (Appendix A) do not appear to exceed 0.26, indicating weak bivariate associations. Moreover, average variance inflation factor (VIF) scores did not exceed 1.13 in any ! 37! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! of the models we estimated. Most of the time these VIF scores were near 1.05. This provides significant evidence that multicollinearity that resulted from a particular combination of variables had little if any impact on model coefficients and standard errors.! 
work_qjkhxu4nuzh5houdfezuqcftwa	----	No Job Name Restorative Justice and Reparations Margaret Urban Walker In her book Between Vengeance and Forgiveness, Martha Minow begins a chapter on reparations with a brief discussion of restorative justice. She charac- terizes restorative justice as seeking “repair of social connections and peace rather than retribution against offenders;” she describes it as “building connections and enhancing communication between perpetrators and those they victimized, and forging ties across the community. . . .”1 Later in the same chapter, however, when talking about monetary reparations, Minow says the “core idea” behind repara- tions is compensatory justice, the view that “wrongdoers should pay victims for losses” to wipe the slate clean.2 Several recent discussions of reparations for historical injustice and mass political violence reject the idea that compensatory or, as I will call it, corrective justice is the relevant or primary category for reparations involving groups or large numbers of individual victims of injustice.3 Roy Brooks considers the “tort model” of pursuing compensation from institutions and private parties through legal action, a secondary, morally deficient and relatively unpromising avenue. He advances an “atonement model” of reparations premised on “the post-Holocaust vision of heightened morality, victim-perpetrator identity, egalitarianism, and restorative justice.”4 Although Brooks does not define restorative justice, his account of atonement makes apology central and sees monetary and other repa- rations as necessary to make apologies believable. Janna Thompson situates her argument for historical obligations to repair past wrongs, such as the theft of lands from indigenous people or the injustice of slavery, in a conception of “reparation as reconciliation” in contrast to a “legalistic” one of “reparation as restoration.” The aim of reparations on this view is “to repair relations damaged by injustice— not to return to a state of affairs that existed before the injustice was done.”5 Ruti Teitel, in her extensive study of transitional justice practice, finds that “reparatory practices have become the leading response in the contemporary wave of political transformation,” but that reparatory practices in political transition “defy categorization as either criminal or corrective justice” by both redressing individual rights violations and signifying responsibility for criminal wrongdo- ing.6 Naomi Roht-Arriaza appeals to “a basic maxim of law that harms should be remedied” in a discussion of reparations for mass violence, but argues that indi- vidual court-ordered reparations are both impractical in cases where there are many victims and inadequate to address collective elements of harm in situations of mass conflict or repression where communities are targeted for violence and are JOURNAL of SOCIAL PHILOSOPHY, Vol. 37 No. 3, Fall 2006, 377–395. © 2006 Blackwell Publishing, Inc. sometimes made complicit in atrocities.7 She advocates collective reparations, like community development, community participatory adjudication or preferential access to services, while recognizing that such collective measures may fail to adequately address or protect victims of political violence. Discussing cases of mass violence and repression, Pablo de Greiff makes the most extensive and pointed argument against a “juridical” approach to reparations that aims to re-establish the status quo ante by proportionate compensation for harms. Com- pensating for harms on this legalistic conception entails problems of quantification and generalization of harms, as well as interpersonal comparisons of suffering, creating divisive hierarchies of victims and clouding the relationship of repara- tions programs to other justice measures. He proposes an expressly “political” conception of reparations programs that measures their effectiveness in terms of social justice; reparations programs should express and create conditions for recognition, civic trust, and social solidarity between victims and others in soci- eties undergoing political transition.8 The field of application for reparations is broad, comprising cases where wrongs are discretely episodic and the concrete means of repair (for example, monetary compensation) are fairly straightforward, cases of gross and murderous violation of massive numbers of human beings during a specific period of political repression or persecution, and group histories of destruction, dispossession, sub- jugation, and degradation of status that span centuries. The nature and background of particular cases of injury, as well as the foreground of current social relation- ships and practical political possibilities, matter decisively for how injury and responsibility are apt to be understood, and what measures of repair are apt to be available and meaningful. I do not wish to deny that what many writers call a “legalistic” or “juridical” understanding of reparations—basically, reparation as an exercise of corrective justice—might be usefully applied in some cases. Nor do I attempt to draw a single line of demarcation between cases where corrective justice will serve adequately as a model for reparation and those to which it is wholly inapt. I propose to explore an alternative to corrective justice as a frame- work for reparations in certain kinds of cases. Although there is no consensus on even a formal characterization of correc- tive justice, conceptions of corrective justice as a moral ideal suppose a moral baseline of acceptable conduct or due care and regard for the security, dignity, or well-being of others. Corrective justice demands “correction” of what are presumed to be discrete lapses from that prior or standing moral baseline in particular interpersonal or institutional transactions with individuals, or unaccept- able impacts of the action or omission of some individuals upon others.9 For this reason, corrective justice may be at least artificial and perhaps incoherent in addressing histories, acts, or forms of injustice that consist in radical denial of moral standing or in relentless enforcement of degraded moral status of individu- als, especially when these are systemic conditions and persist over extended periods of time. Conditions of moral exclusion and degradation, typically embod- ied either in legal exclusion from certain standings, the absence of political rights 378 Margaret Urban Walker or the enforcement of diminished political and civil status, are invariably based on group membership defined either by putatively natural or elective attributes (race, gender, ethnicity, religious creed, disability, sexuality) or by proscribed political activity or membership. These conditions may endure for centuries (histories of dispossession and cultural and physical destruction visited on indigenous people by European colonization) or be relatively transient (political persecutions under particular regimes). The “problem of the baseline” is not adequately comprehended by corrective justice. Rather, I will argue, it is the construction of morally adequate relations in and through the establishment of defensible and shared moral baselines that is a requirement of justice in certain cases, along with reparation for the manifold effects of the absence or unacceptability of such baselines and the usually repeti- tive failure to recognize, admit, or correct this. Restorative justice, I will argue, is a more adequate framing ideal for reparative practice where there is a need to establish a governing understanding of “right relationship” and to approach its realization, rather than to intervene episodically to correct deviations from an existing standard. I will explore some ways that restorative justice is more instruc- tive concerning what injuries of denial and degradation involve, and so what it means to address and redress them, as well as whose responsibility it might be to do so. I will argue that restorative justice accommodates and perhaps requires bottom-up and incremental attempts at repair as a social and political process, a process that may be signified but is not exhausted by a particular reparations program or reparative gesture like a public apology. I identify six core values of restorative justice and explain its guiding aim of “restoring relationships.” I examine a distinctive orientation within restorative justice to compensation as one among many means to repair, to articulating wrongs and harms fully, to processes that “leverage” responsibility, and to the active role of communities of varying types in doing justice. The case I address briefly in conclusion is that of African- American reparations. Corrective Justice and the Moral Baseline Critics of a corrective justice model of reparations—whether they call it “legalistic,” “compensatory,” “juridical,” or “reparatory”—find conceptual, prac- tical, political, and moral grounds for criticism. Conceptually, it is fair to say, as de Greiff does, that corrective justice tends to focus on mechanisms of restitution or compensation and to emphasize some representative relationship, usually “pro- portionality,” between compensation and injury. It is not easy to pry corrective justice thinking away from legal paradigms of compensating for undue loss and injury, although often compensation in political or historical cases is apt to be, and perhaps in the interests of political feasibility and social solidarity must be, symbolic. Practically, dealing with compensation for very large numbers of victims of political violence or oppression poses financial burdens and political snares in many transitional contexts where reparations compete for limited Restorative Justice and Reparations 379 resources. Administrative arrangements for implementing reparations mecha- nisms can become costly, divisive, and demoralizing if they are too fine-grained in vetting eligibility. In some cases, like histories of chattel slavery, sexual enslave- ment, or genocide, the meaning of compensation is powerfully shaped by the larger frame: other gestures of recognition, acknowledgment, atonement, memo- rializing, social support and guarantees of prevention determine whether financial compensation sends an acceptable and dignifying message to victims and perpe- trators, as well as to society generally. It may often be these other nonmonetary measures that are possible, valuable, and necessary, whether or not monetary compensation is likely or wise. Reparations policies must be politically feasible, but neither can they appear as cheap buyouts or fail to address victims directly and to validate their experience of suffering and specific experience of injustice, lest they add further moral insult to moral and material injury. The balance of indi- vidual and collective reparative measures, and delicate matters of fit among monetary, service, and rehabilitation packages and more symbolic gestures, can seem to outstrip the rather basic idea of a “give back” that has dominated correc- tive justice thinking since Aristotle. These problems are real and pressing, but they might be understood as symptoms of a deeper issue. The framework of corrective justice strains, because it has never been meant to deal with either a massive scale of serious mayhem or a protracted and brutal subjugation and mutually ramifying indignities and atrocities that characterize oppressive and violently repressive systems. But what is the “framework of corrective justice”? There is no canonical formal characterization of the kind of justice that sets right wrongful or undue losses and injuries any more than there is a single accepted terminology. Some writers emphasize a right to reasonable security from undue losses imposed even by others’ nonculpable acts while others delimit the occasions for corrective justice to cases of wrongdoing or the violation of rights.10 Some see corrective justice as a remedial mechanism to restore just distributions, while others see corrective justice as more autonomous and directed to maintain- ing a basis for stable expectations that facilitate social cooperation in various interactions, at least to some extent independently of the justice of underlying distributions.11 A common function of corrective justice in numerous accounts, however, is that there is a standard of moral acceptability for the impact we have on each other through our actions and interactions, and that corrective justice responds to correct those impacts of action and interaction that fall outside of that standard of moral acceptability, however it is characterized. This is the standard I call the moral baseline, and it may be set in terms of just distribution, a kind of right or rights, a norm of fairness, standards of due care and attentiveness, or the dignity and respect-worthiness of persons. Unsurprisingly, contemporary authors are inclined to characterize the moral baseline of corrective justice in the language of moral equality. Gerald Gaus describes compensatory justice as aiming at restoration of “moral equality.”12 Bernard Boxill’s early piece on black reparations sees justice as requiring equal consideration between equals, and so an acknowledgment of the error of treatment 380 Margaret Urban Walker that fails to respect equality and a reaffirmation of belief in equality of the injured party.13 It seems possible, however, for corrective justice to function as a principle in societies with differentiated and even hierarchically organized statuses with reciprocal but not symmetrical obligations and responsibilities; there, too, will be due and undue treatment and recognition, and so a need for redressing interactions and impacts that deprive some parties of what they rightfully claim. Hammurabi’s laws, for example, include many specific rules not only for punishing prohibited acts but also for correcting transactions involving slaves and masters, husbands and wives, parents and children, who are not supposed to enjoy equality of status in the modern sense. There is, then, a duality within corrective justice. Its moral function might be described as defining and preserving reciprocity and responsibility between indi- viduals (or groups) for their actions and impacts on each other in certain respects (identified by particular norms) in a social order defining proper places and allowing stable interpersonal expectations.14 Yet the norms that set the baselines for acceptable treatment and due care and attention that give corrective justice its specific content—what actions or impacts it is a requirement of justice to correct, and what reparative actions will constitute correction—may themselves be morally indefensible; at the extreme, an assumption of reciprocity may be absent. When norms define unequal statuses based on bogus forms of innate superiority, fabricated natural hierarchies of authority or natural divisions of talent and inter- est, or when they opportunistically deny rights or effective protection and rem- edies to powerless, despised or stigmatized groups, then indefensible moral baselines of corrective justice, or the absence of moral baselines with respect to members of some despised group, become part of that for which justice requires a remedy. Corrective justice is only as morally legitimate as the baselines it treats as morally compelling. The legitimacy of baselines becomes an issue in cases of gross or systemic mistreatment or deprivation of rights characteristic of oppressive social structures and, in somewhat different ways, in political episodes where states, often with some legal basis (“emergency powers”), terrorize or mistreat segments of their own population. Societies over time may come to adopt more justifiable baselines that move toward more uniform recognition of equal worth and dignity of all members. This recognition of equal dignity sets the stage for addressing the problem of faulty baselines that both license unjust treatment and are a cause of it. It does not, however, solve this problem, although measures that acknowledge precisely that situation we might expect to be part of what corrective justice demands. Corrective justice uses its moral baseline to identify and attach obligations of repair to faulty performance under the standards, not to faulty standards. Further- more, corrective justice, if it is to be a basis for reparations, requires principles that can span cultural and national communities. While international and humanitarian law and evolving best practices purport to set a universal standard of moral equality, it is an aspirational standard that does not and in many instances cannot define stable expectations for those whose more local communities and cultures, Restorative Justice and Reparations 381 legal and social, play by very different rules. Thus, the framework of corrective justice seems to predicate the normal operation of legitimate standards of conduct and impact in order to secure performance or repair for failure in, or untoward outcomes due to, the performance of actors. It is not accidental that one analysis that clearly identifies the problem of the baseline is Andrew Sharp’s study of the search for justice between Maori and Pakeha people of New Zealand. Sharp adopts a legalistic conception of restitution and compensation, but incorporates not only the idea of “reciprocal exchange between two equal parties” in his definition of reparative justice, but also the proviso that the parties recognize “the same standards of right.”15 Sharp’s focus on justice claims in an intercultural, historical, and post-colonization context brings the problem of a shared baseline to the fore. It is also one reason for Sharp’s sobering conclusion that “in conditions of biculturalism, strict justice is actually impossible.”16 Strict justice may well be impossible in any case of gross violence or systemic degradation, yet the question of how best to conceive the measure of justice remains. Discussions of reparation continue to invoke the ideal of corrective (or compensatory or reparative) justice, which in turn is pulled inevitably toward legal models of responsibility to compensate for wrongful harm. The basic idea of “compensating” for harm is stretched in various practical, symbolic, or moral directions, or is assimilated to the compensatory framework by referring to the “remedies” and “satisfaction” due to victims of serious wrong, staying with the fundamental idea of “giving back” in order to set right.17 Given the limitations of the framework of corrective justice, I explore the potential of another less philo- sophically familiar picture of justice. Restorative Justice: A Conception and Its Values Restorative justice is not yet part of the shared philosophical language of justice theory. Nor does restorative justice sit easily with the priority of “ideal theory” that has controlled much thinking about justice in the late twentieth century. Ideal theory was identified by Rawls as the necessary starting point of justice theory. Ideal theory assumes a “well-ordered society” in which “everyone is presumed to act justly and to do his part in upholding just institutions.”18 Within the Rawlsian framework, compensatory justice is essentially part of “partial com- pliance theory” that deals with injustice. Restorative justice begins from and defines itself in terms of the reality of violation, alienation, and disregard among human beings. Its central concept of “restoring relationships” supposes that it is disregard or violation of acceptable human relationships that stands at the core of its agenda, practically and philosophically. Restorative justice was introduced to many for the first time when it was invoked as the guiding conception of South Africa’s Truth and Reconciliation Commission.19 The theory and practice of restorative justice, however, began two decades earlier in criminal justice applications with experiments such as victim- offender mediation programs and forms of family or community conferences. I 382 Margaret Urban Walker suggest that six central restorative justice values repeat throughout an extensive and growing literature.20 1. Restorative justice aims above all to repair the harm caused by wrong, crime, and violence. 2. Restorative justice makes central the experiences and needs (material, emo- tional, and moral) of victims. 3. Restorative justice insists on genuine accountability and responsibility-taking from those who are responsible for harm, ideally directly to those who have suffered the harm. 4. Restorative justice seeks to return ownership of the resolution of wrong, crime, and harm to those primarily affected and those who can in turn effect meaningful repair: to those who have done wrong or are responsible for harm, to victims, to immediate communities of care of victims and offenders, and to larger affected or interested communities. 5. Restorative justice aims at offering those responsible for wrong and harm the opportunity through accountability and repair to earn self-respect and to be reintegrated without stigma into their communities. 6. Restorative justice seeks to build and strengthen individuals’ and communi- ties’ capacities to do justice actively, and not to surrender the role of doing justice to experts, professionals, or “the state,” which should play facilitating roles. These core values serve the ultimate aim and guiding norm of restorative justice, “restoring relationships.” In restorative justice, what demands repair is a state of relationship between the victim and the wrongdoer, and among each and his or her community, that has been distorted, damaged, or destroyed. Serious harm to individuals creates a relationship charged with powerful negative feelings and burdened with losses that can continue to mar a victim’s life. Restorative justice targets a situation of negative connection or disconnection that might be an ongoing source of threat, insult, anger, fear, and grief.21 It is not always possible, nor is it always desirable, to restore relationship between those who have done or allowed harm and those who have suffered at their hands or by their indifference or carelessness. In some cases where restoration between victims and offending persons is possible, it can nevertheless mean only a wary coexistence. In any case, however, it is necessary to attempt to restore morally habitable conditions for those wronged within their supporting network of relationships and in their communities. At a minimum, others must acknowledge the wrong and harm done to victims and accept the legitimacy of victims’ demands for recognition and redress. Where some bear responsibility (in any of several ways) for the wrong done to others, apology, combining acknowledgment of wrong, responsibility for wrong, and repudiation of wrong, is in order.22 Resentment of victims’ claims to repair, victim-blaming or indifference to a victim’s violation and suffering is the Restorative Justice and Reparations 383 antithesis of restoration: it tells the victim that the wrong is denied or that he or she does not matter. The terminology of “restoration” is sometimes criticized because it implies return to a condition of relationship that either did not exist or was unacceptable.23 I propose that we understand “restoration” in all contexts as normative: “restora- tion” refers to repairs that move relationships in the direction of becoming morally adequate, without assuming a morally adequate status quo ante. Morally adequate relations are ones in which three conditions obtain. In them, people are confident that they share some basic standards for the treatment of each other. People are able to trust each other to abide by those standards or at least to acknowledge fault if they (or others) do not abide by them. And so, finally, people are entitled to be hopeful that unacceptable treatment will not prevail, that unacceptable behavior will not be defended or ignored where it occurs, and that victims will not be abandoned in their reliance on our shared commitment to our standards and to each other.24 The ideal of restorative justice is that its values should be expressed both in the structure of processes of dealing with violence and injustice and in the outcomes of doing so. Paradigmatic restorative justice practices, such as victim- offender dialogue, group conferences, truth commissions, or apologies (personal or public), not only aim at adequate forms of relationship as an outcome but require participants to act out the morally adequate relationships at which they aim. The practices involve responsive and respectful forms of encounter, interac- tion, and expression, such as offenders directly facing and hearing victims; victims being able to confront offenders and to seek information directly from offenders about what happened and why they were targeted, information that is often critical to victims’ own understanding, peace of mind, and sense of blame- lessness. Offenders, too, are able to represent themselves, and in doing so may be able to represent their own human vulnerabilities and their regret or shame as well as their willingness to apologize and make amends, affirming their competence and self-respect as moral agents. In some formats, other participants encourage more honest, responsive, and responsible interaction between victim and offender, and they can exert pressure as well as provide support for plans of restitution, compensation, or service that aim at repair. A corrective justice framework tends to make compensation—making good a victim’s loss—central, with pressures toward defining a metric of loss and, ideally, compensation in some proportion to loss. There are familiar challenges for this approach, including the obscurity of counterfactual claims about what victims “would have” had, and puzzles about how much of what they might have had they now deserve to receive.25 Many serious harms and injustices, such as the murder of a loved one or the expropriation of a people’s land and destruction of their language and culture due to genocidal practices of colonization, create losses that are not literally compensable at all. Restorative justice, too, emphasizes material and practical amends that address victims’ losses and needs, but restitution and compensation in a restorative framework play instrumental and symbolic roles in 384 Margaret Urban Walker repairing relationships, including the role of adding weight to expressive inter- personal gestures such as apology and expressions of sorrow, shame, guilt, or desire to relieve the victims’ pain and anger. The direct concern of restorative justice is the moral quality of future relations between those who have done, allowed, or benefited from wrong and those harmed, deprived, or insulted by it. In some cases, compensation or restitution will be indispensable to signify full recognition, respect, and concern to victims. In other contexts, material reparation might be unnecessary, and in no cases is it, by itself, sufficient for signaling appropriate moral regard. Compensation by itself need not signal responsibility for injury, much less regret or atonement by those responsible. Without a sur- rounding framework of respectful acknowledgment, responsibility, and concern, compensation can take on insulting, condescending, or dismissive meanings. The nature and meaning of restitution or compensation in restorative justice should emerge from a practice of communication centered on the needs and understand- ings of victims as well as wrongdoers’ deepened understanding of the nature and meaning of the victims’ loss and of the nature and extent of their own responsibility. A second difference between restorative justice and corrective justice approaches concerns the common phenomenon of denial, evasion, or minimizing of responsibility by those implicated in wrongdoing. Corrective justice, like retributive justice, requires that responsibility of particular parties be established in order to determine who must or should “pay” for wrong, through punishment or compensation. Ironically, this almost guarantees that the “bigger” the injustice the more contested will be the antecedent premises of responsibility. The more massive, collectively supported or tolerated, or historically extended an injustice is, the easier it will be to argue that assignments of responsibility are unclear, incoherent, or unfair, and so that arguments for large-scale redress cannot get started, or measures of redress are narrowly targeted to a few parties. Restorative justice practices by contrast typically create the conditions to leverage responsi- bility, that is, to move people from a minimal or peripheral sense of connection and responsibility to a richer and more demanding perception of what harms the wrong does and how they might be related to it. In restorative justice practices that address ordinary crime, such as victim- offender mediation, conferences, or peacemaking circles, once offenders and other responsible or concerned parties are willing to engage in restorative justice practice, it is common for this movement toward greater and broader acceptance of responsibility to occur. Those who have already assumed some responsibility come to a deepened sense of the reality, extent, and consequences of what they have done to another human being. It is also common for others concerned, such as families or communities, to begin to see themselves as implicated, either by connections they have not before examined or admitted, or by a realization that they can make a difference by contributing to or assisting with some form of repair. Victims along with others may want to take an active role in the restorative outcome or in a continuing process of repair. Restorative practice is thus dynamic Restorative Justice and Reparations 385 with respect to responsibility. It may not be necessary to establish responsibility extensively, exclusively, or certainly in order to engage in restorative justice; restorative justice practice may be the way to discover, induce, deepen, extend, and clarify responsibilities that are unnoticed, resisted, or denied at the outset of a process, or have been reassuringly assigned to some small number of target individuals. Institutional, governmental, and community exercises in restorative justice, including projects of finding and telling truths, create the opportunity and the medium for apparent responsibilities to be acknowledged, but also for addi- tional responsibilities, both backward- and forward-looking, to be discerned and accepted.26 A third feature of restorative justice lies in its fostering a full exploration of the nature and impact of the wrong and of the rupture in relationship that explains it or results from it. Communicative interaction and voice for victims, whether in the form of a face-to-face conference or in the form of an official truth process after political violence, aim to create an adequate description of the wrong, which is essential to assessing the requirements of repair. Trudy Govier points to research that shows a substantial “magnitude gap” between victims and perpetrators (and sometimes, we might note, between either and third parties) in evaluating the seriousness of harms.27 As injustices grow in magnitude, violence, and historical duration, the reality, nature, intent, and seriousness of violations become predict- ably contested, and the need for a careful and detailed articulation of the full story of violence, oppression, terror, or subjugation becomes both a reparative activity and a measure of the adequacy of other measures of repair. Finally, restorative justice makes communities of varying sizes and descrip- tions central in several ways. Communities may be harmed, materially and morally, by wrongs to their members and to their resources, including their moral resources of trust and hopefulness. Communities can also serve as actors or as guarantors of repair and restoration of relationships. When individuals primarily responsible for wrongs and harms are unavailable or are unwilling to accept responsibility and to seek to redress their wrongs, restoration may devolve to communities or networks within communities. Indeed, the emphasis in restorative justice on catalyzing and strengthening the capacity of individuals and commu- nities to do justice in the wake of wrongdoing suggests that official actors in the legal system or government are by no means the only actors and should not always be the principal actors in attempting to bring justice to bear. Restorative justice encourages “bottom-up” efforts at justice, while not excluding official roles or responsibilities. Restorative justice supports not a zero-sum but a “both-and” approach to responsibility for restoration of relations. The idea of “community” is used very flexibly in restorative justice, but there is a practical basis for allowing the identification of the relevant community in context. The harmed community and the community that can effectively respond to support repair need not be the same collectivity. It might be that neither community possesses an organizational structure and executive function to under- take actions corporately and representatively; the relevant collectivities might be 386 Margaret Urban Walker relatively unstructured or informal, like a locality or neighborhood. The commu- nity that can effectively respond need not do so, or even be able to do so, corporately; it might be that its members or some groups of members act out of it, or on its behalf, or in its name. And there might also be multiple responsible communities, some institutionally embodied and represented, and others not, that can and should play roles in addressing and redressing injustice. In some restor- ative justice practices in the criminal context, like forms of conferencing or peacemaking circles, the community or communities can encompass individuals and groups that see themselves as harmed by the crime, others that have reason for concern, and others still who are potential sources of support and guarantee of plans for repair in which they themselves might or might not participate. In a restorative justice perspective, communities that matter can be multiple and dif- ferently situated with respect to a crime or injustice. Relevant communities might not be given in advance, but rather formed in response to the demands of doing justice in the wake of specific wrongs.28 Black Redress and a Restorative Justice Perspective I want to illustrate very briefly the productive nature of a restorative justice perspective for one kind of case where a shared moral baseline has never been firmly and reliably in effect. The case is the failure of “black redress,” to use Roy Brooks’s succinct phrase for the need in the United States to address and redress several hundred years of enslavement, legal subjugation and exclusion and legally tolerated exposure to violence extending from the seventeenth to the mid- twentieth century. This history of injustice arguably continues today in society’s acquiescence in persisting and repeatedly documented inequalities of wealth, health, freedom, civic respect, and life prospects for African Americans, and in widespread resistance to and resentment of the topic of reparations for slavery and its sequels in the general—majority white—public. I do not undertake here to repeat the history of cruel and profound injustice punctuated by opportunities and failures to repair that others have ably provided.29 What I add here is that restor- ative justice identifies the problem and the path to reparation in a way better suited to this kind of case than does the corrective model. Restorative justice targets the damage or distortion in relationship that is both a cause and an effect of wrongs. A problem that lies at the heart of the continuous and continuing sequence of enslavement, legal subjugation, and persisting expo- sure to violence, discrimination, and neglect of enslaved Africans in American and African-American citizens is the profound distortion of relationship, socially and emotionally, between the still rigid and polarized raced groups, “black” and “white,” that are constituted by this very distortion. A deep and unexamined contempt of whites for blacks is the most salient and disturbing symptom of the distortion. The attitude of contempt ranges from the benign contempt of indiffer- ence to the history, current condition, and future of African Americans to the angry contempt of defensive hostility and overt racism of many whites toward blacks, Restorative Justice and Reparations 387 especially when asked to pay attention to the history or present conditions of injustice. Focusing on whites’ attitudes toward blacks, however, is both incom- plete and deceptive; the legacy of race and white supremacist racism also deci- sively shapes the self-understanding of whites. The contempt or indifference allows whites not to feel that they are part of an urgent present problem and allows them to be ill-informed and uncurious, or complacently but often mistakenly confident, in what they know about the history and legacies of racial oppression. It allows whites to think of the history of race in America as something that happened to African Americans and not what happened to whites. Part of the self-understanding of whites, as decades of critical race theory reveals, is not to know what whiteness means; to think that race and racial oppression have to do with blacks and other non-white people; and to feel right-minded in condemning unconscionable things that were done to African Americans “long ago,” even though legally enforced segregation is within the memory of many living indi- viduals who have never received reparation.30 For African Americans, the basis for earned trust in whites is lacking; worse, its emergence is undermined by continu- ing evidence of racism and the persistence of the denial or minimization of the reality of racism still common in white America, as well as indifference or hostility to appeals for reparation that reappear punctually throughout American history from slavery times.31 Deeper lies the assault on the hopefulness of many African Americans who face reduced life chances and the reality that their chil- dren may for another generation contend with the insults and obstacles of racism, and the results of poverty, poor education, crime, and incarceration, that others blithely ignore or deny.32 A telling symptom of a disconnected, evasive, or hostile attitude of white Americans to the unredressed history of injustice to African Americans is reported opposition among white Americans toward a U.S. government apology for slavery or that larger history. Polls continue to show heavy white opposition to—and black support for—an official national apology for slavery.33 Apology is the most minimal but unambiguous and foundational gesture of repair. Not to apologize is to fail to accept, and refusal to apologize is to deny, the fact of the wrong, the seriousness of the wrong, responsibility for the wrong, repudiation of the wrong, or all of these.34 Official apologies, furthermore, not only acknowledge and accept responsibility for a past wrong, but typically serve to signal a recognized need to re-establish institutional moral credibility, an intent to establish a certain version of events as the official story, and a public resolve to accept a correct moral standard for future conduct.35 To resist an official apology reveals opposition to this definitive public correction of course. Another dimension of apology, often crucial to its effect but not always adequately noted, is the empathetic function of apology. Apologies are often inadequate or disappointing to the one harmed if they do not manage to convey appreciation of the suffering, anger, mistrust, or grief the victim experiences as a result of the wrong.36 To refuse apology can mean refusing to acknowledge that these universal human responses to injury and disrespect are fitting. 388 Margaret Urban Walker There are compelling arguments for the U.S. government as a continuing institution that bears responsibility for its roles in accepting and protecting slavery and then in legitimating the degraded Jim Crow citizenship that currently living individuals and communities have endured.37 I agree that the federal gov- ernment is an appropriate and important locus of responsibility for apology and further reparative measures. Yet restorative justice, while not rejecting the impor- tance of moral responsibilities of government, offers a distinctive perspective: justice is done both in and by restoring moral relationship and so affirming, perhaps for the first time, a truly shared moral baseline of reciprocal responsi- bility and equal dignity. Governmental actions alone are not adequate to that task, and government action on more local—state and municipal—levels might represent in a more immediate way communities with which people identify, especially if those communities address their own local histories of racial vio- lence, exploitation, or exclusion. Institutions like corporations, churches, and universities are other localities for the identification and exploration of unre- dressed racial wrongs. At the same time, the “restoration of relationship” sought within restorative justice terms, pursued on local levels by governmental, institutional, and civic initiatives, could create better conditions for the pursuit of national reparations, material and symbolic, for African Americans. Putting a priority on historical inquiry, dialogue, and voice of those concerned or affected, and inviting active engagement in the present with the past, open opportunities that restorative justice distinctively seeks. There can be fuller articulation of wrongs, discovery of their consequences and space for acknowledgment of responsibilities of various kinds, including past involvement or acquiescence in unacceptable practices, recognition of benefits from racial inequality, irresponsible or defensive ignorance of facts, or the ability to contribute to changing the future. Legacies of racial violence and oppression will predictably have affected African Americans in immediate ways (including incidents of violence and victimization that may have remained unknown in families and communities), but may also have affected whites and other racial minorities negatively. Past cooperative efforts across racial lines might also come into focus alongside practices that used race to stigmatize and humiliate citizens. Local initiatives can explore forms of reparation—memorials, celebra- tions, history projects, museums, educational programs, genealogy projects, public art, dramatic performance, and others—that meaningfully address the nature of wrongs and moments of constructive change in particular communities whose identities and boundaries might be reconfigured by such initiatives. Conclusion: Untangling Relations and Incubating Reparations I have described restorative justice as an approach to reparations that could be adopted, but I was prompted to think about the restorative justice and reparations by reflecting on an actual surge in local initiatives to deal with unredressed racial injustice and violence against African Americans in the past ten to fifteen years. Restorative Justice and Reparations 389 The Greensboro Truth and Reconciliation Commission, America’s first self- named truth commission, is a privately financed project to examine the 1979 shootings of five anti-racist community activists by Klansmen and neo-Nazis that will release its final report in May, 2006. A 500-page report released in 2005 was commissioned by the General Assembly of North Carolina to explore the overthrow by whites of the government of the town of Wilmington in 1898, ending black participation in local government until the civil rights era. The state of Florida passed a compensation program in 1994 for survivors of a white race riot that destroyed the town of Rosewood in 1923. An investigation of the Tulsa Race Riot of 1921 in which whites destroyed the prosperous black com- munity of Greenwood published its report in 2002, recommending reparations for survivors and descendants; reparations have so far not been enacted. The state of Virginia recently matched private funds to provide scholarships for state residents who were unable to continue their education when Prince Edward County and other locales shut down public schools in the 1950s rather than desegregate them. Several cities, including Chicago, Philadelphia, and Los Angeles, have passed ordinances requiring disclosure of links to slavery by cor- porations receiving municipal business. Charleston, South Carolina, is preparing to open the Old Slave Mart Museum in an original building where slave auc- tions were held until 1863. In 2001, on the occasion of the university’s 300th anniversary, three doctoral candidates at Yale University researched Yale’s use of slave-trade money and choices to honor slave-traders and defenders of slavery in the naming of its colleges. Ruth Simmons, Brown University’s first African- American president, formed a University Steering Committee on Slavery and Justice in 2003 to research Brown’s historical ties to slavery. Prosecutors have reopened notorious civil rights era murder cases in which indictments or con- victions were impossible to secure at the time, in what are appropriately named “atonement trials,” while states have begun to consider mass or individual pardons for thousands of people who violated segregation laws or were con- victed due to racial bias. These developments might be seen as fragmentary justice or alternative remedies where justice has failed. I suggest we see them instead as multiple, local initiatives that might be better understood under the rubric of restorative justice. These initiatives arise from or address communities and institutions, in some cases through government and law and in others through the effort or the leadership of individuals. They aim to address victims or descendants, to acknowledge buried or unredressed injustices, to create accountability, to offer gestures or repair, to respond to the needs of living victims, and to memorialize victims who are beyond the reach of justice. Placed within the framework of restorative justice, these efforts are parts of a decentralized and incremental work of restoration and reparation that seems fitted to the historical length, breadth, and complexity of the injustice in question. These actions might also build momentum toward the passage of Representative John Conyers’s H.R. 40 proposal for a national com- mission to examine the history and effects of slavery and its sequels to the present 390 Margaret Urban Walker day, to explore ways to educate the American public and to study the question of reparations, itself a measure in the spirit of restorative justice, inviting public dialogue and seeking a fuller accounting of wrongs. Whether or not a national apology or reparations are achieved in the near or the longer term, diverse and dispersed initiatives at different levels are particularly fitting in a case of deeply distorted relations, mystifying and incomplete histories, and transgenerationally entrenched alienation within and between groups. A strik- ing model for what is needed in such a case is provided in Manu Meyer’s discussion of ho’oponopono, a traditional Hawaiian peacemaking practice that addresses troubled family relations. The practice aims at “examining one layer at a time, of inching toward the source of trouble to untangle emotion, actions, and motivations, which will, in turn, uncover yet another, deeper layer of the same.”38 It requires a clear view of the problem and a disciplined and guided work of “untangling” thoughts and emotions that stand between people and in the way of understanding and addressing the wrong or conflict. Could there really be a shortcut through a process like this, given centuries of distorted and violent racialized relations in the United States? I have argued that restorative justice provides a more adequate way to con- ceptualize injustice and its compounding causes and effects over generations in a case such as the relationship between white Americans and African Americans. Restorative justice outlines a more varied menu of mutually supporting ways of addressing such injustice than does corrective justice as usually understood. My brief for the superiority of restorative justice as an approach to reparations in certain cases, however, need not be seen as completely excluding the relevance of corrective justice. Conceptually, corrective justice might be seen as a limit case of restorative justice where there has been a local violation of a standing norm in the context of mutually authoritative standards; in fact, the theory of restorative justice has been developed largely within a criminal justice context as a way to address victims’ rights to a direct and constructive response of accountability and repair from offenders who have harmed them in a particular criminal act. Practically, corrective justice and its idea of compensation as an expression of responsibility may well be one effective and familiar (and effective because familiar) concrete format for signifying and sealing between parties an understanding of right rela- tionship, or a decisive step in the direction of such an understanding, that had been lacking previously. Symbolically, corrective justice may convey counterfactually the “restoration” of what should have existed but in reality did not previously obtain. This symbolism—of equal parties settling a debt required by their recip- rocal recognition under shared norms—might be particularly apt at a certain point in cases where reparation, including acknowledgments of and apologies for a history of varied and gross mistreatment, comes very late: after a brutally oppressed, viciously stigmatized, and persistently disadvantaged group has sur- vived and struggled its way to recent formal equality, as is true of African Americans. In order to perform this symbolic function, however, it will likely have to consolidate a more varied and complex process of historical accounting, Restorative Justice and Reparations 391 acknowledgment, cultivating trust and making amends for which restorative justice provides the rationale. Thanks to editors Kok-Chor Tan and Rahul Kumar for suggestions on the final draft of this essay. Notes 1 Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), 92. 2 Ibid., 104. 3 The systematic treatment of reparations has only recently emerged as a philosophical topic and there is no uniform terminology for the species of justice that imposes obligations to repair wrongful losses; writers speak variously of compensatory justice, corrective justice, reparative justice, reparatory justice, and rectificatory justice. In contrast to the concept of “distributive justice,” which is widely viewed as justice in the distribution of socially produced benefits and burdens, varied terminology surrounding justice in repair also reflects a lack of consensus about the moral function of corrective justice, whatever it may be called. I will use the terminology of “corrective” justice and return later to the question of how to characterize its basic moral function. 4 Roy L. Brooks, Atonement and Forgiveness: A New Model for Black Reparations (Berkeley and Los Angeles: University of California Press, 2004), xv, xvi, 11, 19, 141, 148, and 211. 5 Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice (Cam- bridge: Polity Press, 2002), xix. 6 Ruti Teitel, Transitional Justice (New York: Oxford University Press, 2000), 127–28. 7 Naomi Roht-Arriaza, “Reparations in the Aftermath of Repression and Mass Violence,” in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, eds. Eric Stover and Harvey M. Weinstein (Cambridge: Cambridge University Press, 2004), 121–23. 8 Pablo de Greiff, “Justice and Reparations,” in The Handbook of Reparations, ed. Pablo de Greiff (New York: Oxford University Press, 2006), 451–77. 9 No doubt contemporary discussions of corrective or compensatory justice in the Anglo-American literature are heavily influenced by Anglo-American legal practices concerning tort and contract. See the opening of Cass R. Sunstein, “The Limits of Compensatory Justice,” in Compensatory Justice, ed. John W. Chapman (New York and London: New York University Press, 1991) on “five basic principles” of compensatory justice in this legal tradition. 10 On a right to security of person or possession from lapses of care, even if not culpable, as the moral basis of corrective justice, see D. N. MacCormick, “The Obligation of Reparation,” Proceedings of the Aristotelian Society 78 (1977–78): 175–94; on corrective (or “rectificatory”) justice as applying to violations of rights, see Rodney Roberts, “Justice and Rectification: A Taxonomy of Justice,” in Injustice and Rectification, ed. Rodney Roberts (New York: Peter Lang, 2002), 7–28. Jules Coleman considers nonculpable infringement of rights as well as culpable rights violation and other wrongdoing as requiring recognition of the victims’ loss and the worthiness of repair, in Jules Coleman, “Corrective Justice and Property Rights,” in Injustice and Rectification, ed. Rodney Roberts (New York: Peter Lang, 2002), 53–65. 11 James W. Nickel, “Justice in Compensation,” William and Mary Law Review 18, no. 2 (1976): 379–88, considers the purpose of compensatory justice the protection of just distribution by both preventing and undoing acts that disturb such distributions. It is fair to say that corrective justice is more typically not seen as reducible to, or essentially a means to, just distributions. 12 Gerald F. Gaus, “Does Compensation Restore Equality?” in Injustice and Rectification, ed. Rodney Roberts (New York: Peter Lang, 2002), 93–94. 13 Bernard Boxill, “The Morality of Reparation,” in Injustice and Rectification, ed. Rodney Roberts (New York: Peter Lang, 2002), 128. Aristotle’s original account of corrective justice in 392 Margaret Urban Walker Nichomachean Ethics, 1132 “treats the parties as equal” in rectifying unjust gains and losses between parties even when, in Aristotle’s hierarchical view of human worth, they clearly are not so. 14 See Coleman, “Corrective Justice and Property Rights,” on the “local” character of corrective justice that “has to do with the baseline or background norms governing wrongdoing within a particular community, and with ‘local understandings’ of more general norms,” p. 61. 15 Andrew Sharp, Justice and the Maori (Auckland: Oxford University Press, 1997), 34. 16 Ibid., 23. 17 Current standards for reparations are defined by the United Nations Commission on Human Rights, “Revised Set of Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law / prepared by Theo van Boven pursuant to sub-commission decision 1995/117,” United Nations Document E/CN.4/Sub.2/1996/17. 18 John Rawls, The Theory of Justice (Cambridge, MA: The Belknap Press, 1971), 8. 19 South Africa’s Truth and Reconciliation Commission said restorative justice: seeks to redefine crime from offense against the state to any injury to and violation of particular human beings; is based on reparation as the healing and restoration of victims, offenders, families, and the larger com- munity; encourages all stakeholders to be directly involved in resolving conflict, with the state and legal profession in facilitating roles; and aims at offender accountability and full participation of victims and offenders in putting things right. See “Concepts and Principles,” Truth and Recon- ciliation Commission of South Africa Report (London: Palgrave Macmillan, 1999), vol. 1, chap. 5, par. 82. Essays in Robert I. Rotberg and Dennis Thompson, Truth v. Justice: The Morality of Truth Commissions (Princeton, NJ: Princeton University Press, 2000) discuss restorative justice in the TRC. 20 Sources include Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, PA: Herald Press, 1995); Dennis Sullivan and Larry Tifft, Restorative Justice: Healing the Foundations of our Everyday Lives (Monsey, NY: Willow Tree Press, 2001); Gordon Bazemore and Mara Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Com- munities (Cincinnati, OH: Anderson Publishing, 2001); Heather Strang and John Braithwaite, Restorative Justice and Civil Society (Cambridge: Cambridge University Press, 2001). John Braithwaite, Restorative Justice and Responsive Regulation is most comprehensive in its theo- retical scope and review of empirical studies. Gerry Johnstone, ed., A Restorative Justice Reader: Texts, Sources, Context (Portland, OR: Willan Publishing, 2003) provides a full overview of the field. A usefully brief summary discussion of current restorative justice practices is provided by Gordon Bazemore and Mark Umbreit, “A Comparison of Four Restorative Conferencing Models,” in A Restorative Justice Reader: Texts, Sources, Context, ed. Gerry Johnstone (Portland, OR: Willan Publishing, 2003), 225–43. A related literature on peacemaking with emphasis on tradi- tional or adapted indigenous practices includes: Kay Pranis, Barry Stuart, and Mark Wedge, Peacemaking Circles: From Crime to Community (St. Paul, MN: Living Justice Press, 2003); Robert Yazzie, “ ‘Life Comes From It,’: Navajo Justice Concepts,” New Mexico Law Review 24, no. 2 (1994): 175–90; Barbara E. Wall, “Navajo Conceptions of Justice in the Peacemaker Court,” Journal of Social Philosophy 32, no. 4 (2001): 532–46; and Manu Meyer, “To Set Right— Ho’oponopono: A Native Hawaiian Way of Peacemaking,” The Compleat Lawyer 12, no. 4 (1995): 30–35. 21 On the complexity of victims’ responses, and the predictable needs for voice, validation of the reality of their violation and suffering, and vindication in experiencing some form of proper redress, see Margaret Urban Walker, “The Cycle of Violence,” Journal of Human Rights 5, no. 1 (2006): 81–105. 22 One recent account of varied forms of “accountability” for harms is Christopher Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge: Cambridge University Press, 2000). 23 Harvey M. Weinstein and Eric Stover propose “reclamation” as a more fitting term for retrieving a social and moral situation from barbarity or disorder. See their “Introduction: conflict, justice, and reclamation,” in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Restorative Justice and Reparations 393 Atrocity, eds. Eric Stover and Harvey M. Weinstein (Cambridge: Cambridge University Press, 2004), 15. 24 See Margaret Urban Walker, Moral Repair: Reconstructing Moral Relations After Wrongdoing (New York: Cambridge University Press, 2006) for a defense of these constitutive conditions of moral relationship. 25 Two discussions that explore these problems in cases of long-running and still continuing historical injustices are George Sher, “Ancient Wrongs and Modern Rights,” Philosophy and Public Affairs 10, no. 1 (1980): 3–17, and Jeremy Waldron, “Superseding Historic Injustice,” Ethics 103, no. 1 (1992): 4–28. 26 See Marc Forget, “Crime as Interpersonal Conflict: Reconciliation Between Victim and Offender,” in Dilemmas of Reconciliation: Cases and Concepts, ed. Carol A. L. Prager and Trudy Govier, (Waterloo, ON: Wilfrid Laurier University Press, 2003) on the dynamic quality of restorative justice. 27 Trudy Govier, Forgiveness and Revenge (London: Routledge, 2002), 128. 28 Paul McCold and Benjamin Wachtel refer to “micro-communities created by the incident of a crime” as the “means through which healing and re-integration is possible,” in Paul McCold and Ben- jamin Wachtel, “Community Is Not a Place: A New Look at Community Justice Initiatives,” in A Restorative Justice Reader: Texts, Sources, Context, ed. Gerry Johnstone (Portland, OR: Willan Publishing, 2003), 300. See also Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, PA: Herald Press, 1995) on the relation between restorative and community justice. 29 See Brooks, Atonement and Forgiveness and Andrew Valls, “Racial Justice as Transitional Justice,” Polity 36, no. 1 (2003): 53–71, on the continuity and failure to repair. Ronald P. Salzberger and Mary C. Turck, Reparations for Slavery: A Reader is a useful compendium of the repeated proposals for reparation and the issues raised. Robert Sparrow, “History and Collective Respon- sibility,” Australasian Journal of Philosophy 78, no. 3 (2000): 346–59, presents a thoughtful and moving discussion of the historical continuity of injustice to Australia’s Aboriginal people, with implications for historically continuous and continuing injustices to other groups. 30 Charles Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 1997) characterizes white racial consciousness as an “epistemology of ignorance.” 31 Brooks, Atonement and Forgiveness, 4–19, provides a summary of this history. See also David Lyons, “Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow,” Boston University Law Review 84, no. 5 (2004): 1375–1404. Danielle Allen’s Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education (Chicago: University of Chicago, 2004) sees race relations in the United States as exposing a more general problem of “trust- generating citizenship” that is acute in the case of relations between blacks and whites in America. 32 See Walker, Moral Repair, chap. 6, for a fuller discussion of the structure of contempt. 33 Joe R. Feagin and Eileen O’Brien, “The Growing Movement for Reparations,” in When Sorry Isn’t Enough: The Controversy Over Apologies and Reparations for Human Injustice, ed. Roy Brooks (New York: New York University Press, 1999), 341–44, cites a 1997 ABC News poll that reports two-thirds of white Americans resist the idea of an apology from the federal government for slavery, and 88 percent rejected reparations. Ellis Cose, Bone to Pick: Of Forgiveness, Reconcili- ation, Reparation, and Revenge (New York: Atria Books, 2004), 171, reports a more recent September, 2003 poll finding thirty percent of whites (compared with seventy-nine percent of blacks) believe blacks are due an apology for slavery, and four percent of whites were in favor of compensation for slavery, compared with sixty-seven percent of blacks. The United States Senate, however, recently passed by voice vote an apology for failing to enact federal legislation against lynching decades ago. See Sheryl Gay Stolberg, “Senate Issues Apology Over Failure on Lynching Law,” New York Times, June 14, 2005. 34 A most helpful recent account of apology is Aaron Lazare, On Apology (New York: Oxford Univer- sity Press, 2004). On official apology see also Trudy Govier and Wilhelm Verwoerd, “The Promise and Pitfalls of Apology,” Journal of Social Philosophy 33, no. 1 (2002): 67–82. 394 Margaret Urban Walker 35 Kathleen A. Gill, “The Moral Functions of an Apology,” in Injustice and Rectification, ed. Rodney Roberts (New York: Peter Lang, 2002), 119–122. 36 Ibid., 114; Govier and Verwoerd, “The Promise and Pitfalls,” 71; and Lazare, On Apology, 44. 37 Discussions include: Brooks, Atonement and Forgiveness; Robert Fullinwider, “The Case for Repa- rations,” Report of the Institute for Philosophy and Public Policy 20, no. 2/3 (2000), in the University of Maryland Institute for Philosophy and Public Policy website, http://www.puaf. umd.edu/IPPP/reports/vol20sum00/case.html (accessed April 8, 2006), reprinted in Salzberger and Turck, Reparations for Slavery, 141–51; and Rahul Kumar and David Silver, “The Legacy of Injustice: Wronging the Future, Responsibility for the Past,” in Justice in Time: Responding to Historical Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 145–58. 38 Meyer, “To Set Right—Ho’oponopono,” 33. Restorative Justice and Reparations 395 http://www.puaf 
work_qlewegebrvc6zcotegclkri7lu	----	hlaw1-1607.docx www.amajournalofethics.org 718 AMA Journal of Ethics® July 2016, Volume 18, Number 7: 718-726 HEALTH LAW Pursuing Justice in Haiti’s Cholera Epidemic Richard Weinmeyer, JD, MA, MPhil Abstract In 2010, the nation of Haiti was leveled by a shattering earthquake that killed thousands and devastated its already fragile infrastructure. During relief efforts to aid Haiti’s suffering population, the United Nations sent troops to Haiti to assist the rebuilding of country’s most basic services. But those troops unknowingly carried with them the bacteria that cause cholera, and through the UN’s negligent actions, it triggered a horrifying cholera epidemic that continues to harm the Haitian people. Those injured by the cholera epidemic have sought relief in the US federal court system to obtain justice for those killed or sickened by the cholera outbreak. The UN has declared legal immunity for causing the epidemic, yet the litigation on this matter is ongoing. Introduction On January 12, 2010, a devastating earthquake struck the island nation of Haiti. The seismic event and its aftermath killed more than 200,000 people [1], displaced close to 1.5 million residents [2], and left the poverty-stricken country in an even more precarious state. And another catastrophe would soon bear down on the Haitian people. In October 2010, Haitian health officials found an unusually high number of cases in which people presented symptoms of acute diarrhea, vomiting, and severe dehydration in two different regions of Haiti [3]. Stool samples from symptomatic patients confirmed the presence of Vibrio cholerae, the bacterium that causes cholera [4]. Within a few weeks, new cases of cholera were found in other parts of the country, including the capital, Port- au-Prince [5]. By the end of November 2010, every region of Haiti had positive cases of cholera; over 16,000 Haitians had been hospitalized with acute diarrhea and over 900 were dead from the disease [6]. The cholera epidemic in Haiti is still ongoing. Over the course of nearly six years of the outbreak, it has been estimated that more than 9,200 people died from the disease, with more than 770,000 Haitians having been infected [7]. Historical records indicate that, prior to this epidemic, cholera had not been present in Haiti for at least 150 years [4], which gave impetus to several independent investigations seeking to unearth what caused this public health crisis. All of the studies that have been conducted point to the http://journalofethics.ama-assn.org/2009/07/mhst1-0907.html AMA Journal of Ethics, July 2016 719 same source: peacekeeping troops deployed by the United Nations (UN) to a UN base in Haiti. Although systematic failures in establishing a UN peacekeeping base in Haiti is the culprit behind the Haitian cholera epidemic, as will be explained below, calls from the international community that the UN quickly address and rectify the damage caused by the epidemic have garnered little response from the intergovernmental organization. Advocates seeking just compensation for victims of the epidemic, as well as humanitarians, have taken to the courts as a means by which to hold the UN accountable for its negligence in failing to screen UN peacekeeping troops for cholera and failing to enact proper sanitation practices. This article will discuss the tricky legal challenge that exists in charging one of the most prominent humanitarian organizations in the world with dereliction of its duties. The United Nations—the Proximate Cause of the Haitian Cholera Epidemic Since the early 1990s, the UN has deployed several peacekeeping and humanitarian missions to Haiti in order to address political unrest and socioeconomic instability [8]. In 2004, following the removal of Haiti’s president during a contentious political struggle, the UN established the UN Stabilization Mission in Haiti (MINUSTAH) to provide a military presence, oversee civilian affairs, and offer humanitarian and development assistance [6]. During the 2010 earthquake, MINUSTAH troops played key roles in the immediate response to the disaster as well as in long-term humanitarian efforts, including clearing debris, rebuilding local infrastructure, leading security assessments, and ensuring that the rule of law and administration of justice were being carried out [6]. But between October 8 and 21, 2010, a battalion of Nepalese MINUSTAH troops arrived in Haiti to provide further support for ongoing earthquake relief efforts [6], and it is during this timeframe that the first cases of cholera began to appear. Considerable evidence from several investigations points to the Nepalese troops as the source of the disease. Epidemiological studies have shown that the Nepalese troops sent to MINUSTAH had been exposed to cholera while training in Nepal, likely during an outbreak of the disease in the Kathmandu Valley [9]. Cholera is endemic in Nepal, and although medical examinations revealed no reported symptoms among the troops, the bacteria can be carried asymptomatically, and none of the troops were tested specifically for V. cholerae before leaving for Haiti [10]. More tellingly, epidemiological research on the Haitian cholera epidemic has repeatedly shown that the V. cholerae strain in Haiti is closely related to the bacteria strains from Southeast Asia [3]. Different specimen samples from the Haitian cholera outbreak have pointed to a common genetic source, and genetic sequencing of the Haitian bacteria has demonstrated that it is nearly identical in its genetic makeup to the V. cholerae strain that was found in Nepal during the summer of 2010 [3]. http://journalofethics.ama-assn.org/2006/12/pfor2-0612.html http://journalofethics.ama-assn.org/2016/07/ecas2-1607.html http://journalofethics.ama-assn.org/2015/10/stas1-1510.html http://journalofethics.ama-assn.org/2015/10/stas1-1510.html www.amajournalofethics.org 720 Moreover, analyses of the cholera outbreak reveal that the epidemic originated in the area of Méyè where the Nepalese troops were stationed, near the MINUSTAH base [11], where poor sanitation measures acted as a catalyst. The MINUSTAH base is located near the Méyè Tributary, a waterway that then flows into the Artibonite River—the largest river in Haiti and one of the main water sources used by Haitians for drinking, bathing, and cooking [6]. Even before the outbreak had begun, local residents complained that the UN was dumping sewage into the river, and reporters visiting the base in the throes of the outbreak described seeing an overflowing sewage tank and a dark foul-smelling liquid pouring from a pipe into the river [12]. An environmental survey conducted by a UN independent panel of experts found the MINUSTAH base to have an inadequate waste infrastructure that allowed for a “significant potential for cross-contamination” because of poor pipe connections, broken pipes, and a faulty waste disposal system wherein water contaminated with fecal material was dumped into a septic pit near the Méyè Tributary [11]. By giving Nepalese MINUSTAH troops entry into Haiti without screening and treating them for cholera, the UN allowed a dangerous contagion to be introduced into an impoverished and vulnerable nation. Furthermore, the reckless construction of the MINUSTAH base sanitation and waste disposal systems, together with the UN’s failure to address these systemic breakdowns, fueled the proliferation of a deadly cholera outbreak that was entirely preventable. Response by the United Nations The UN’s willingness to take responsibility for the Haitian cholera epidemic and to help with further relief efforts has been poor. Although the UN’s culpability has been confirmed through scientific studies [9], expert reports [3], and the very investigation that was commissioned by the Secretary-General of the UN [11], the organization has denied any role in starting the epidemic [13]. In response to advocacy groups seeking compensation for victims of the cholera outbreak and demands that the UN establish and fund a nationwide program to properly address the outbreak and prevent further destruction, the UN has stated that the outbreak was “caused by a confluence of circumstances and was not the fault of, or deliberate action of, a group or individual” [14]. Furthermore, the UN will not review the legal claims of injured Haitians because “consideration of these claims would necessarily include a review of political and policy matters” [14]. This stance means that the UN considers the roles the MINUSTAH peacekeepers and the base played in contaminating the waterways and the troops’ negligent actions to be a matter of public policy instead of an actionable legal claim under tort law and, therefore, outside the duties owed by the UN to the Haitian people [15]. Although the UN has launched the Initiative for Elimination of Cholera in Haiti—a $2.27 billion plan to address the epidemic in partnership with the Centers for Disease Control and Prevention, the World Health Organization, and other bodies—the UN has only committed to providing $23.5 million, or less than 1 percent of the needed funding [6]. Given the UN’s refusal to concede its role in the Haitian cholera outbreak, Haitians http://journalofethics.ama-assn.org/2006/04/mhst2-0604.html http://journalofethics.ama-assn.org/2006/04/mhst2-0604.html AMA Journal of Ethics, July 2016 721 sickened during the outbreak and the families of those who died have taken to the federal courts in the United States to seek justice from the UN. Federal District Court On October 9, 2013, a class action lawsuit was brought by five named plaintiffs—Haitian and US citizens—against the UN, MINUSTAH, the Secretary-General of the UN, and the former Under Secretary-General of MINUSTAH. The case was brought in US federal district court in New York because the UN is headquartered in New York State [16]. The brief filed with the court served three core functions. First, it laid out the argument that the case should be considered a class action suit so that the five named plaintiffs could represent and obtain relief for “at least 679,000 individuals, including the representatives of the more than 8,300 people who contracted and died from the cholera epidemic that was introduced into Haiti” [17]. Second, the 67-page complaint set forth detailed evidence demonstrating that the UN knew or should have known that the Nepalese MINUSTAH soldiers were exposed to cholera and that the troops should have been tested and treated for the disease; that the UN knew or should have known about the base’s reckless sanitation systems and poor waste disposal practices, which posed a high risk to the Haitian people; that the UN consciously disregarded these risks; and that the actions culminated in the cholera epidemic [18]. Third, the plaintiff’s brief asserted that because the UN did not establish a venue or mechanism for plaintiffs to seek legal remedies, the UN waived its legal immunity, thereby allowing those harmed to seek damages for personal injury, wrongful death, emotional distress, loss of use of property and natural resources, and breach of contract [19]. The UN did not respond to this legal challenge. Instead, on March 7, 2014, the US government filed a statement of interest with the court stating that “all of the defendants in this matter are immune from legal process and suit” [20]. Given that the UN chose not to oppose the complaint submitted by the plaintiffs, the US federal court intervened because of the “United States’ obligations as host nation to the UN and as a party to treaties governing the affairs and immunities of the UN” [21]. According to the US government, the UN and its officials are immune from prosecution unless they have expressly waived their right to immunity [20]. The UN’s immunity, it is argued, stems from two multilateral agreements to which the US is a part: the Charter of the United Nations and the Convention of the Privileges and Immunities of the United Nations [20]. Specifically, article 105, section 1 of the UN charter states that the UN “shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes” [22]. Article 3, section 2 of the convention states, “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity” [23]. For the individually named UN officials, the US argued that they were also protected by the Vienna Convention’s article 32 that provides http://journalofethics.ama-assn.org/2007/10/mhst1-0710.html www.amajournalofethics.org 722 legal immunity to “diplomatic agents” [24]. The US government grounded its argument in case law supporting the immunity of the UN, its subsidiaries (here, MINUSTAH), and its officials, noting in particular that immunity had not been expressly waived by any UN body or official [20]. As a result, from the US government’s perspective, immunity from prosecution remained in place, and, given this protection, the US government concluded that the federal court lacked the jurisdictional authority to hear the case [20]. The court was not convinced by the arguments asserted by the plaintiffs and concluded that the UN was immune from prosecution and, as a result, that the court lacked subject matter jurisdiction to hear the case [25]. In finding that the UN, MINUSTAH, and their officials did not expressly waive their immunity as required by the Convention on the Privileges and Immunities of the United Nations, the court based its reasoning primarily on the case of Brzak v. United Nations [26], wherein the plaintiffs argued “that the UN’s dispute resolution mechanism was inadequate to resolve their case, and that this inadequacy stripped the UN of its immunity” [27]. In Brzak, the court also found the UN to be immune because it did not expressly waive its immunity [28]. Without an express waiver of immunity, the UN could not be sued for its role in the Haitian cholera epidemic and the federal district court in New York could not hear the case. US Court of Appeals In February of 2015, the plaintiffs appealed the decision of the district court to the US Court of Appeals for the Second Circuit. Based on the reasoning used by the district court in its opinion and the arguments asserted by the US federal government, the plaintiffs distinguished the present case from Brzak and argued that the UN’s inability to comply with another section of the Convention on the Privileges and Immunities of the United Nations effectively revoked its immunity [29]. Although the issue at hand in Brzak dealt with section 2 of the convention and the immunity afforded to the UN, the plaintiffs argued that section 29 of the convention was controlling in the present case. Under section 29, the convention states, “The United Nations shall make provisions for appropriate modes of settlement of: (a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party” [30]. According to the plaintiffs, section 29 is a condition precedent to section 2, and with the UN’s failure to establish an “appropriate mode of settlement” to address the claims of injured Haitians, the UN had materially breached the convention, removing its immunity [29]. To support its argument, the plaintiffs urged the court to review the legislative history of the convention’s drafting, the intent of the drafters, norms in international law, and the court decisions from other countries where the UN has been legally pursued for failure to provide access to remedy mechanisms [31]. As those cases have shown, the plaintiff’s argued, “international organizations, including the UN, are entitled to immunity only when they comply with their obligations to provide access to an alternative remedy” [32]. AMA Journal of Ethics, July 2016 723 Once again, the UN did not respond to the notice of appeal. However, the US federal government did contribute to the case on appeal by submitting an amicus curiae brief (i.e., “friend of the court” brief) to urge the court of appeals to affirm the lower court’s ruling and find that the UN and its officials have immunity and, therefore, that the court does not have the jurisdictional authority to hear the case [33]. Conclusion In 2013, the New York Times referred to the ongoing litigation against the UN for its role in the Haitian cholera epidemic as “one of the most organized legal challenges to United Nations assertions that it is immune to such litigation” [34]. As the case continues to be pursued by the plaintiffs and discussed widely by experts, journalists, international humanitarian organizations, and other interested parties, its importance in seeking redress for those harmed during times of crisis cannot be overestimated. Oral arguments before the US Court of Appeals for the Second Circuit took place on March 1, 2016, and the international community is surely watching closely to see how the court will rule and just what the implications will be for the UN and the people of Haiti who continue to deal with the dangerous and unpredictable circumstances ensuing from the 2010 earthquake and continuing cholera epidemic. References 1. Haiti quake death toll rises to 230,000. BBC News. February 11, 2010. http://news.bbc.co.uk/2/hi/americas/8507531.stm. Accessed April 10, 2016. 2. Bradley M. Four years after the Haiti earthquake, the search for solutions to displacement continues. Brookings Up Front. January 13, 2104. http://www.brookings.edu/blogs/up-front/posts/2014/01/13-haiti- earthquake-anniversary-bradley. Accessed April 10, 2016. 3. Centers for Disease Control and Prevention. Update: outbreak of cholera—Haiti, 2010. MMWR Morb Mortal Wkly Rep. 2010;59(48):1586-1590. 4. Jenson D, Szabo V; Duke FHI Haiti Humanities Laboratory Student Research Team. Cholera in Haiti and other Caribbean regions, 19th century. Emerg Infect Dis. 2011;17(11):2130-2135. 5. Barzilay EJ, Schaad N, Magloire R, et al. Cholera surveillance during the Haiti epidemic—the first 2 years. N Engl J Med. 2013;368(7):599-609. 6. Transnational Development Clinic; Global Health Justice Partnership; L’Association Haïtienne de Droit de l’Environnement. Peacekeeping without Accountability: The United Nations’ Responsibility for the Haitian Cholera Epidemic. https://www.law.yale.edu/system/files/documents/pdf/Clinics/Haiti_TDC_Final _Report.pdf. Published August 2013. Accessed March 1, 2016. 7. McFadden D. Cholera still quietly kills dozens a month in Haiti. AP. March 3, 2016. http://bigstory.ap.org/article/bc72bac9c61a42e5be513daccfd26c65/cholera- quietly-still-kills-dozens-month-haiti. Accessed April 21, 2016. www.amajournalofethics.org 724 8. Muggah R. The effects of stabilisation on humanitarian action in Haiti. Disasters. 2010;34(suppl 3):S444-S463. 9. Hendriksen RS, Price LB, Schupp JM, et al. Population genetics of Vibrio cholerae from Nepal in 2010: evidence on the origin of the Haitian outbreak. MBio. 2011;2(4):e00157-11. doi:10.1128/mBio.00157-11. 10. King AA, Ionides EL, Pascual M, Bouma MJ. Inapparent infections and cholera dynamics. Nature. 2008;454(7206):877-880. 11. Cravioto A, Lanata CF, Lantagne DS, Nair GB. Final report of the independent panel of experts on the cholera outbreak in Haiti. United Nations; 2011:22. http://www.UN.org/News/dh/infocus/haiti/UN-cholera-report-final.pdf. Accessed April 10, 2016. 12. Quigley F. Haiti’s earthquake was devastating. The cholera epidemic was worse. The Nation. October 16, 2015. http://www.thenation.com/article/haitis- earthquake-was-devastating-the-cholera-epidemic-was-worse/. Accessed April 10, 2016. 13. Pillinger M, Hurd I, Barnett MN. Thousands died when the UN brought cholera to Haiti. Here’s why it’s getting off scot-free. Washington Post. March 28, 2016. https://www.washingtonpost.com/news/monkey- cage/wp/2016/03/28/thousands-died-when-the-u-n-brought-cholera-to- haiti-heres-why-its-getting-off-scot-free/. Accessed April 10, 2016. 14. O’Brien P. Letter to Brian Concannon, executive director, Institute for Justice & Democracy in Haiti. United Nations; February 21, 2013:2. http://www.ijdh.org/wp-content/uploads/2011/11/UN-Dismissal-2013-02- 21.pdf. Accessed April 10, 2016. 15. Rosen A. How the UN caused Haiti’s cholera crisis—and won’t be held responsible. The Atlantic. February 26, 2013. http://www.theatlantic.com/international/archive/2013/02/how-the-un- caused-haitis-cholera-crisis-and-wont-be-held-responsible/273526/. Accessed April 10, 2016. 16. Class Action Complaint, Delama Georges v United Nations, 84 F Supp 3d (SD NY 2015). http://www.ijdh.org/wp-content/uploads/2013/10/Georges-v.-United- Nations-Complaint.pdf. Accessed April 10, 2016. 17. Class Action Complaint, 9. 18. Class Action Complaint, 12-52. 19. Class Action Complaint, 52-65. 20. Bharara P. Statement of Interest of the US Department of Justice to the Honorable J. Paul Oetken. US Department of Justice; March 7, 2014:1. http://www.ijdh.org/wp-content/uploads/2011/11/Georges-v.-UN-13-Civ.- 7146-SDNY-Statement-of-Interest.pdf. Accessed April 10, 2016. 21. Bharara, 2. 22. United Nations. Charter of the United Nations and Statute of the International Court of Justice, art 105, sec1. AMA Journal of Ethics, July 2016 725 https://treaties.un.org/doc/Publication/CTC/uncharter.pdf. Adopted 1945. Accessed April 10, 2016. 23. United Nations. Convention on the Privileges and Immunities of the United Nations, art 2, sec 2. http://www.un.org/en/ethics/pdf/convention.pdf. Adopted February 13, 1946. Accessed April 10, 2016. 24. United Nations. Vienna Convention on Diplomatic Relations, art 32. http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf. Effective April 24, 1964. Accessed April 10, 2016. 25. Opinion and Order, Delama Georges v United Nations, 84 F Supp 3d (SD NY 2015). http://www.ijdh.org/wp- content/uploads/2011/11/Dkt62_Opinion_and_Order_01_09_15.pdf. Accessed April 10, 2016. 26. Brzak v United Nations, 597 F3d 107 (2d Cir 2010). 27. Opinion and Order, 5. 28. Brzak, 10. 29. Brief for Appellants at 3–7, Georges v United Nations, 84 F Supp 3d 246 (SD NY 2015), appeal docketed, No. 15-455 (2d Cir May 27, 2015). 30. United Nations, Convention of the Privileges and Immunities of the United Nations, art 8, sec 29. 31. Brief, Georges v United Nations, 11-18. 32. Brief, Georges v United Nations, 18. 33. Brief for United States of America as Amicus Curiae Supporting Appellees, Georges v United Nations, 84 F Supp 3d 246 (SD NY 2015), appeal docketed, No. 15-455 (2d Cir May 27, 2015). 34. Gladstone R. Peacekeeping by UN faces new scrutiny on 2 fronts. New York Times. October 9, 2013. http://www.nytimes.com/2013/10/10/world/peacekeeping-by-un-faces-new- scrutiny-on-2-fronts.html?_r=0. Accessed April 10, 2016. Richard Weinmeyer, JD, MA, MPhil, is a senior research associate for the American Medical Association Council on Ethical and Judicial Affairs in Chicago. Mr. Weinmeyer received a master’s degree in bioethics and a law degree with a concentration in health law and bioethics from the University of Minnesota, where he served as editor in chief for volume 31 of Law and Inequality: A Journal of Theory and Practice. He obtained his first master’s degree in sociology from Cambridge University. Previously, Mr. Weinmeyer served as a project coordinator at the University of Minnesota Division of Epidemiology and Community Health. His research interests are in public health law, bioethics, and biomedical research regulation. Related in the AMA Journal of Ethics The Epidemic Intelligence Service: The Centers for Disease Control and Prevention’s Disease Detectives, April 2006 http://journalofethics.ama-assn.org/2006/04/mhst2-0604.html http://journalofethics.ama-assn.org/2006/04/mhst2-0604.html www.amajournalofethics.org 726 Equity or Minimum Standards in Humanitarian Aid: A Conflict of Principles, December 2006 A Framework for Assessing Responsibility in Intergovernmental Partnerships, July 2016 From Medical Neutrality to Medical Immunity, October 2007 Humanitarian Uses of Drones and Satellite Imagery Analysis: The Promises and Perils, October 2015 Michael Furnell’s Crusade against the “Local Influences” Theory of Cholera, July 2009 The viewpoints expressed in this article are those of the author(s) and do not necessarily reflect the views and policies of the AMA. Copyright 2016 American Medical Association. All rights reserved. ISSN 2376-6980 http://journalofethics.ama-assn.org/2006/12/pfor2-0612.html http://journalofethics.ama-assn.org/2016/07/ecas2-1607.html http://journalofethics.ama-assn.org/2007/10/mhst1-0710.html http://journalofethics.ama-assn.org/2015/10/stas1-1510.html http://journalofethics.ama-assn.org/2009/07/mhst1-0907.html 
work_qq5qwdhozzfqfn7v2oxvmuhlaa	----	Correspondence "A Theory of Justice" To the Editors: I have followed with great interest the discussion sparked by John Rawls's A Theory of Justice. Most of the debate would seem to hinge upon the difference between an absolute egalitarianism and "equal- ity of opportunity." In his review of the book in Worldview (February) Mr. Alan Emdin almost entirely evades this central question. In one sense his change of pace is refresh- ing, and certainly it is valuable to shave him note, as others have not, that Rawls's idea of how social val- ues are formed is unrealistically dis- tant from such elementary socializ- ing influences as, for example, reli- gion. At the same time, however, it is regrettable that Mr. Emdin fails to focus on Rawls's argument of what "ought to be." . . . Conflicting notions of equality . seem increasingly central to moral reflection in our society. I would hope that Mr. Emdin and others would address themselves to this is- sue as it relates to the guiding imper- atives of our Western moral, specifi- cally religious, traditions. I believe the serious challenge to Rawls is not, as Mr. Emdin would have it, how he visualizes social formation but wheth- er he is right in saying that equality rather than, for example, some Com- mon Law notion of human rights is the linchpin of social justice. Ry fail- ing to come to grips with Rawls's central contention, Emdin's review offers little more than a mildly inter- esting footnote to this important dis- cussion. E. L. Quittner South Bend, Ind. « Alan Emdin Responds: E. L. Quittner poses two criticisms of my review. It is charged that, al- though I make a few interesting points about Rawls's notion of value formation, I neglect crucial recent debate on the relative merits of abso- lute egalitarianism as opposed td equality of opportunity, and also that I do not come to grips with the question of what constitutes the "linchpin of social justice." Apparently Quittner and I travel in different circles, and this, I be- lieve, accounts for our differing views of what discussion of Rawls's work hinges on. Perhaps the virtues of ab- solute equality are a major topic of consideration in the professional journals of academic philosophers. If so, I am reaffirmed in my judg- ment that one of Rawls's strong points is that through the notion of the original position and the consid- eration of institutions he moves be- yond what seems to me sterile debate over piecemeal philosophical abstrac- tions. Exchanges I have been privy to have turned on why Rawls's book, appearing when it did, has been the object of such great attention. In my review I attempted to answer this by pointing to the work as the first effort at the creation of a comprehensive system which both overcomes the impasse positivistic philosophy and economics have created for the study of ethics and also incorporates the rigorous methods of analysis devel- oped by welfare economists. Nearly half of my review is devoted to this task. Nor do I believe that I "fail to come to grips" with the constitution of the "linchpin of social justice." Quittner misinterprets points in my review addressed to exactly these matters. Quittner writes that Rawls's treatment of socialization is far from realistic, and so it is. But in criticiz- ing the Rawlsian view of authority, religion and the Aristotelian "perfec- tionism" of intellectual virtue, I indi- cated my belief that these very things were "linchpins of social jus- tice" and not just the neglected as- pects of value formation Quittner makes them out to be. They are among the "guiding imperatives '•of our Western moral, specifically reli- gious traditions." Indeed, if we are to believe Edward Corwin, they are the background of Anglo-Saxon Com- mon Law as well. A book which treated them adequately would sure- ly be a philosophic work of the first order, and thus would constitute a challenge to "Rawls's argument of what 'ought to b e ' " on the most seri- ous level. My regrets that my re- view is not such a work are at least as strong as Quittner's. Still, I be- lieve that I have raised issues com- pared to which argument over types of equality seems only "a mildly in- teresting footnote." Israel and the West Bank To the Editors: It is easy to say that all Israeli factions seem agreed upon the necessity of "creating some sort of political entity on the West Bank" ("Israeli Politics and the West Bank," Worldview, February), but Stephen Oren seems peculiarly insensitive to the fact that even this "concession" is emphatically on Israeli terms. In fact I doubt that any Israeli official close to the center of power enter- tains the possibility of granting non- Israelis any say in,- for example, the expansion of Jewish settlements in the conquered territories. There is, contrary to Mr. Oren's implication, no readiness to see a truly sovereign state established that would have control over its own relationship to the contorted "foreign policies" with- in the Middle East. In so many essays such as Mr. Oren's one gets the false impression that Israeli leadership is prepared to be "reasonable." What is not men- tioned is that reasonableness is de- fined in terms of modifying prior outrageous policies. One does not have to accuse Israel of being a min- ion of U.S. imperialism to recognize ; the simple power realities by whiqh Israeli leadership perpetuates its op- pression of its neighbors—all, of course, in the name of self-defense. Mr. Oren's admittedly informative article might have been further en- hanced had he placed the West Bank issue into the larger context of the long-term prospects for Israel's sur- vival in an Arab world. Is not the (continued on page 62) 2 
work_qqvzhzzwzzdejczwqoh7ycnhga	----	Disability and social justice King’s Research Portal DOI: 10.1080/09687599.2016.1256273 Document Version Publisher's PDF, also known as Version of record Link to publication record in King's Research Portal Citation for published version (APA): Mladenov, T. (2016). Disability and social justice. Disability and Society. https://doi.org/10.1080/09687599.2016.1256273 Citing this paper Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination, volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are again advised to check the publisher's website for any subsequent corrections. General rights Copyright and moral rights for the publications made accessible in the Research Portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognize and abide by the legal requirements associated with these rights. •Users may download and print one copy of any publication from the Research Portal for the purpose of private study or research. •You may not further distribute the material or use it for any profit-making activity or commercial gain •You may freely distribute the URL identifying the publication in the Research Portal Take down policy If you believe that this document breaches copyright please contact librarypure@kcl.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1080/09687599.2016.1256273 https://kclpure.kcl.ac.uk/portal/en/publications/disability-and-social-justice(49daa6ae-c444-4454-bbb0-2bfb510f9946).html https://kclpure.kcl.ac.uk/portal/en/persons/teodor-mladenov(6e6c79b8-f129-4e4e-8e6b-af36925c6ef2).html https://kclpure.kcl.ac.uk/portal/en/publications/disability-and-social-justice(49daa6ae-c444-4454-bbb0-2bfb510f9946).html https://kclpure.kcl.ac.uk/portal/en/journals/disability-and-society(04c9eafb-995a-41fc-bf8e-4d2027e9f151).html https://doi.org/10.1080/09687599.2016.1256273 Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=cdso20 Download by: [Teodor Mladenov] Date: 24 November 2016, At: 01:09 Disability & Society ISSN: 0968-7599 (Print) 1360-0508 (Online) Journal homepage: http://www.tandfonline.com/loi/cdso20 Disability and social justice Teodor Mladenov To cite this article: Teodor Mladenov (2016): Disability and social justice, Disability & Society, DOI: 10.1080/09687599.2016.1256273 To link to this article: http://dx.doi.org/10.1080/09687599.2016.1256273 © 2016 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group Published online: 23 Nov 2016. Submit your article to this journal View related articles View Crossmark data http://www.tandfonline.com/action/journalInformation?journalCode=cdso20 http://www.tandfonline.com/loi/cdso20 http://www.tandfonline.com/action/showCitFormats?doi=10.1080/09687599.2016.1256273 http://dx.doi.org/10.1080/09687599.2016.1256273 http://www.tandfonline.com/action/authorSubmission?journalCode=cdso20&show=instructions http://www.tandfonline.com/action/authorSubmission?journalCode=cdso20&show=instructions http://www.tandfonline.com/doi/mlt/10.1080/09687599.2016.1256273 http://www.tandfonline.com/doi/mlt/10.1080/09687599.2016.1256273 http://crossmark.crossref.org/dialog/?doi=10.1080/09687599.2016.1256273&domain=pdf&date_stamp=2016-11-23 http://crossmark.crossref.org/dialog/?doi=10.1080/09687599.2016.1256273&domain=pdf&date_stamp=2016-11-23 Disability & society, 2016 http://dx.doi.org/10.1080/09687599.2016.1256273 Disability and social justice Teodor Mladenov  centre for Public Policy Research, King’s college london, london, UK ABSTRACT This article explores the significance of disability for social justice, using Nancy Fraser’s theory of justice as a guideline. The article argues that the disability perspective is essential for understanding and promoting social justice, although it is often disregarded by critical thinkers and social activists. The article looks at three prominent strategies for achieving social justice under conditions of capitalism: economically, by decommodifying labour; culturally, by deconstructing self-sufficiency; and politically, by transnationalising democracy. The disability perspective reveals that decommodification of labour requires enhancement of disability support, deconstruction of self-sufficiency requires valorisation of disability-illuminated interdependence, and transnationalisation of democracy requires scrutiny of the transnational production of impairments. The article discusses each of these strategies in theoretical and practical terms by drawing on disability studies and Fraser’s analyses. Points of interest • This article looks at social justice from the perspective of disability. • The article argues that a society is just only when it provides accessible and adequate disability support. • The article also argues that a society is just only when it does not stigmatise disabled people’s ‘dependency’ but recognises that everyone is interdependent. • Finally, the article argues that a society is just only when it is possible for people impaired by global economy and violence to have a say in the policies that have affected them. Introduction My initial idea for this article was to explore the usefulness of Nancy Fraser’s theory of social justice for critical-theoretical analyses of disability. However, after some further reflection, I decided to turn the question upside down and to focus instead on the significance of stud- ying disability for social justice, using Fraser’s theory as a guideline. This reversal of © 2016 the author(s). Published by informa UK limited, trading as taylor & Francis Group. this is an open access article distributed under the terms of the creative commons attribution license (http://creativecommons.org/ licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. KEYWORDS Disability; social justice; Nancy Fraser; decommodification; interdependence; transnational democracy ARTICLE HISTORY Received 4 May 2016 accepted 31 october 2016 CONTACT teodor Mladenov teomladenov@gmail.com OPEN ACCESS http://orcid.org/0000-0002-0623-7952 http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ mailto:teomladenov@gmail.com http://www.tandfonline.com 2 T. MLADENOV questioning is motivated by two observations. The first is a trivial one – the usefulness of Fraser’s theory for disability research has already been highlighted and ‘tested’ elsewhere. For example, Danermark and Gellerstedt (2004, 342) have utilised Fraser’s approach as a promising ‘point of departure to analyse and understand disability in modern society’; Dodd (2016) has drawn on Fraser’s theory of justice in order to explore and criticise the agenda of austerity and its impact on disabled people in the United Kingdom (for an earlier but con- ceptually thinner attempt at such theorisation, see Mladenov 2014); Hugemark and Roman (2007) have used Fraser’s theory to analyse divisions and tensions within the Swedish disa- bility movement; Mladenov (2016) has applied Fraser’s framework in a critical analysis of disability injustices in the postsocialist countries of Central and Eastern Europe; Soldatic and Grech (2014) have supported their proposal to develop transnational disability studies and politics with reference to Fraser (2005); and Vehmas and Watson (2014, 647) have made recourse to Fraser (2000) in order to criticise the disregard of the ‘economic basis of disability’ in contemporary critical disability studies. The second observation that underpins the reversal of my initial questioning on Fraser and disability is a critical one – disability has consistently been marginalised by critical the- orists and social activists alike. Most thinkers and campaigners concerned with social justice have perceived their work as unrelated to what has routinely been regarded as a specialist domain of research and campaigning. This point about the side-lining of disability has pre- viously been made by disability scholars – for example, Davis (2002, 147) lamented the widespread assumption that disability does not constitute ‘a serious category of oppression’, contrasting the progressives’ indignation with racism and sexism to their indifference towards ableism. Let me provide two recent examples of such disregard of disability taken from the domains of critical theory and activism. In a radical critique of contemporary capitalism, Jonathan Crary (2014) characterises our technologically interconnected world by the injunction to perform that incorporates people into homogeneous space and time of uninterrupted and constantly accelerating production and consumption. Crary regards sleep as the last frontier before the total submission of humans to the profit-making imperatives of the globalised techno-capital. He conceptualises sleep as a vulnerability that defies the instrumental calculus of the 24/7 world of contem- porary capitalism: ‘Sleep is the only remaining barrier, the only enduring “natural condition” that capitalism cannot eliminate’ (Crary 2014, 74). I find it remarkable that Crary does not see disability in similar terms, considering disability’s resistance to instrumentalisation that, although far from ‘natural’, has nevertheless been repeatedly highlighted by disability schol- ars (for example, Hartblay 2014; Mitchell and Snyder 2010; Mladenov 2015a). The only place in the book that includes a discussion of disability is Crary’s brief recourse to autism. Yet autism is used by Crary as way to condemn television that, according to a quoted study (2014, 86; original emphasis), ‘might have a catastrophic physical impact on the developing human being – … it could produce extreme, permanent impairments in the acquisition of language and in the capacity for social interaction’. In this account, autism is a pathology created by techno-capitalism rather than an impediment to its total instrumentalisation of life, as sleep is argued to be. My second example concerns the side-lining of disability in contemporary social activism. The case in question is the Leap Manifesto,1 a campaigning tool promoting social and envi- ronmental justice in Canada. It was written in 2015 by Canadian activists and has been supported by Naomi Klein and other well-known public figures (Klein 2016). The document DISABILITY & SOCIETY 3 weaves together measures intended to rectify injustices suffered by the planet, indigenous peoples, women, workers, migrants and refugees. Accordingly, it insightfully highlights the intersections between the issues of climate change, economic inequality, racism, sexism, economic exploitation, globalisation and migration. Yet despite this impressive intersection- ality, the Leap Manifesto does not mention disability or injustices of ableism. In this article I will explore the importance of disability for accounts concerned with social justice, be they critical-theoretical as the one provided by Crary (2014), or practical-activist as the one advanced in the Leap Manifesto (Klein 2016). To this end, I will focus on what I consider to be the most powerful critical-theoretical conceptualisation of social justice pro- duced in recent decades – that of Nancy Fraser. In the mid-1990s, Fraser (1995) developed an account of social justice intended to bring together in a synthesis the two main left-wing strands of twentieth-century thinking and acting on justice – the socialist strand that had focused on issues of economic redistribution, and the postsocialist strand that had focused on issues of cultural recognition. This account was later expanded to accommodate issues of political representation (Fraser 2005), thus creating a comprehensive theory and a versatile instrument for critique of present-day injustices. Fraser has meticulously explored injustices of gender, class, race and sexuality, but has so far hardly ever mentioned disability. In the early 2000s, Michael Bérubé (2003) highlighted this omission of Fraser’s and insisted on the importance of ‘mak[ing] disability central to our theories of egalitarian social justice’. Taking this suggestion as my point of departure, I will argue that the mechanisms which produce and maintain injustices along other axes of dif- ference such as class or gender cannot be completely understood nor fully dismantled without taking disability into account. First, I will briefly present Fraser’s theory of social justice. Then, I will explore the significance of disability for the formulation and advancement of some prominent transformative strategies for social change aimed at economic redistri- bution, cultural recognition and political representation. The conclusion will emphasise the interrelations between these three spheres of action. Fraser’s theory of social justice Fraser’s theory of social justice (Fraser 1995, 1996, 2000, 2005, 2007, 2013; Fraser and Honneth 2003) has been summarised by disability scholars on several occasions (Danermark and Gellerstedt 2004; Dodd 2016; Hugemark and Roman 2007; Mladenov 2016). These reviews have been devised in view of applying Fraser’s framework to disability, whereas the summary provided here is tailored to the purpose of looking at social justice from the perspective of disability. With this intention in mind, the first thing to note is that for Fraser (1996) social justice means ‘parity of participation’ and that this normative standard has been central for disability campaigning and thought at least since the 1970s (UPIAS 1976). From the per- spective of parity of participation, a society is just only when it enables all of its adult mem- bers to interact with each other as peers, and this necessarily includes disabled people. According to Fraser’s (1996) initial formulation, parity of participation requires economic redistribution and cultural recognition. Later, Fraser (2005, 2007) added political representa- tion to her originally two-dimensional framework in order to take into account the impact of transnational structures and processes on social justice. Fraser expanded the familiar scope of the terms ‘redistribution’, ‘recognition’ and ‘representation’. In her theory, redistri- bution is not reduced to ‘the sort of end-state reallocations that are associated with the 4 T. MLADENOV liberal welfare state. Rather, it also encompasses the sort of deep-structural economic changes that have historically been associated with socialism’ (Fraser and Honneth 2003, 95–96, n. 8). Accordingly, a strategy of redistribution could be either affirmative or trans- formative – it could promote surface reallocations of economic outputs without touching the underlying structures that generate economic inequality, or it could attempt deep-level economic restructuring. Fraser’s understanding of recognition is similarly broader than usual – in her usage, the term is ‘not limited to the sort of valorization of group differences that is associated with mainstream multiculturalism. Rather, it also encompasses the sort of deep restructuring of the symbolic order that is associated with deconstruction’ (Fraser and Honneth 2003, 96, n. 9). Accordingly, a strategy of recognition could seek to affirm, on the surface level, previously devalued differences or commonalities that transcend differences; or, alternatively, could attempt to transform culture in-depth by deconstructing the under- lying frameworks that produce differences in the first place. As far as representation is concerned, for Fraser (2005, 2007) this term encompasses both ordinary-political democratic processes such as political association within national civil society or voting in national elections, and meta-political processes that determine who is entitled to participate in ordinary-political processes. Fraser (2005, 12) points out that strat- egies of political representation which limit democratisation to the bounded polity of the nation-state reproduce the seventeenth-century principle that ‘the territorial state is the appropriate unit within which to pose and resolve disputes about justice’. In the context of contemporary globalisation, such strategies are bound to remain affirmative. In contrast, transformative strategies of political representation seek to democratise decision-making on a transnational basis, recognising that the principle of the nation-state is ‘out of synch with the structural causes of many injustices in a globalizing world, which are not territorial in character’ (2005, 12). Such injustices include global division of labour, global inequalities in access to communicative power and global biopolitics of climate, weaponry, cure and biotechnology that take lives and injure bodies (2005, 13). Fraser’s distinction between redistribution, recognition and representation forms the backbone of the discussion that follows. Because of institutional differentiation that accom- panied the development of capitalism (Fraser 2000), the three dimension of justice have become relatively autonomous – therefore, they require different but equally important strategies for overcoming associated injustices. Indeed, Fraser (2005, 10–11, n. 9) has acknowledged that, for tactical reasons, struggles for justice are sometimes justified in emphasising one of the dimensions at the expense of the other two. However, in general, ‘struggles against maldistribution and misrecognition cannot succeed unless they are joined with struggles against misrepresentation – and vice-versa’; therefore, ‘efforts to overcome injustice cannot, except in rare cases, address themselves to one such dimension [of justice] alone’ (2005, 11). Thus if we overemphasise economic maldistribution and de-emphasise cultural misrecog- nition, we risk one-sided economism that could (indirectly) enhance injustices of misrecog- nition. In the 1990s, Shakespeare (1994) criticised historical materialists within disability studies for being implicated in such a disregard of culture, and more recently this argument was reiterated by Meekosha and Shuttleworth (2009, 50). On its behalf, the overemphasising of culture at the expense of economy risks one-sided culturalism that could (indirectly) enhance injustices of maldistribution. Recently, Vehmas and Watson (2014) and Dodd (2016, 158) criticised ‘critical disability studies’ for being implicated in such a disregard of economy. DISABILITY & SOCIETY 5 Finally, disregarding the political dimension in one’s critique of economy and culture risks methodological nationalism that could (indirectly) enhance maldistribution and misrecog- nition by side-lining injustices of globalisation. Highlighting this problem, postcolonial dis- ability scholars (for example, Meekosha 2011; Soldatic 2013) have accused contemporary disability theory of ‘scholarly colonialism’ (Meekosha 2011, 668) because of its disregard of the transnational dimension of disability (in)justice. Besides the distinction between redistribution, recognition and representation, the fol- lowing analysis also relies on Fraser’s (1995) distinction between affirmative and transform- ative strategies for overcoming injustice. Affirmative strategies correct the outcomes of social arrangements while transformative remedies correct social arrangements themselves (1995, 82). Therefore, affirmative strategies are less likely to produce substantial change because they leave the underlying structures intact; they can even enhance injustice. Transformative strategies are more promising because they reach deeper and change structures and frames, although they may be harder to implement because they are removed from the immediate concerns of the oppressed (Fraser 1995, 90; Fraser and Honneth 2003, 77–78). In the following three sections, I will explore the significance of disability for three prominent transformative strategies for achieving parity of participation – decommodification of labour in the dimen- sion of redistribution, deconstruction of self-sufficiency in the dimension of recognition, and transnationalisation of democracy in the dimension of representation. Disability and economic redistribution On the level of economy, capitalism generates maldistribution through commodification of labour. This is not the only way in which capitalism impairs distributive justice, but it is nev- ertheless a key one. Capitalism commodifies labour by putting pressure on people to work for a wage (Marx 1978). The stronger the pressure to sell one’s labour, the less room one has to negotiate conditions of employment and the more unequal society becomes. Therefore, a transformative strategy of redistribution would seek to decommodify labour (Esping- Andersen 1990; see also Mladenov 2015b) – for example, through the introduction of a basic income: According to proponents, if the level of the grants were set high enough, Basic Income would alter the balance of power between capital and labor, creating a more favorable terrain on which to pursue further change. The long-term result could be to undermine the commodification of labor power. (Fraser and Honneth 2003, 78) But in order to be truly transformative, a strategy of redistribution that aims to decommodify labour needs to improve the access to disability support. The structural reasons for this could be clarified by drawing a political-economic comparison between gender and disability. In their analyses of capitalism, feminist thinkers have emphasised the centrality of gender for this political-economic system. Capitalism requires gender division of labour for its smooth functioning – both a division between paid and unpaid (caregiving and homemak- ing) labour and a gender division within paid labour (Fraser 1995, 78). The coding of an activity as ‘feminine’ legitimates its exploitative incorporation in the system of capital accu- mulation – keeping overfeminised activities such as caregiving, homemaking and certain kinds of service provision unpaid or underpaid is an essential tool for value appropriation: ‘Women who care are thought to be exercising their natural proclivities to nurture and this invidious assumption translates into low wages’ (Watson et al. 2004, 338). Disability is equally 6 T. MLADENOV important for capitalism, as Marxist and neo-Marxist thinkers within disability studies have argued (Finkelstein 1980; Oliver and Barnes 2012; Russell 2001, 2002; Stone 1984). For exam- ple, according to Abberley (1987, 17), ‘a theory of disability as oppression will attempt to flesh out the claim that historically specific categories of “disabled people” were constituted as a product of the development of capitalism, and its concern with the compulsion to work’. The category of disability is a major instrument used by the capitalist state to regulate the supply of labour in the interests of capital accumulation. So if gender (in addition to class and race) is key for division of labour, disability is key for commodification of labour. In her book The Disabled State, Deborah Stone (1984) has shown that tightening of eligi- bility criteria which allow a person to be officially recognised as ‘disabled’ makes access to need-based distribution harder, thus putting additional pressure on workers to accept unfa- vourable conditions of employment within the system of work-based distribution. Notably, this regulation of eligibility concerns all workers and non-workers in capitalism (rather than only disabled ones), which allows Stone to argue that: The very notion of disability is fundamental to the architecture of the welfare state; it is some- thing like a keystone that allows the other supporting structures of the welfare system and, in some sense, the economy at large to remain in place. (1984, 12) The more difficult the access to the disability category (and therefore – to the need-based system of distribution), the more pressure there will be on both actual and potential workers to sell their labour for a wage irrespective of the conditions of employment: Enlarging the active reserve army of labour [by decreasing disability support and pushing more people into employment] is ‘good’ for business because it disciplines labour. Having more peo- ple desperate for work keeps competition for jobs high and workers’ wages down, thereby protecting the corporate profit margins and class privilege, which are sacred to the interests of capital. (Russell 2002, 125) In contrast to the tightening of eligibility, the liberalisation of eligibility criteria makes it possible for some unemployed or underemployed people to be reclassified as disabled people, which could potentially reduce the pressure of commodification. However, liberal- isation of eligibility is not enough for effective decommodification because meagre, condi- tional or stigmatised benefits deter people from seeking exemption from work-based distribution by way of the disability category (Russell 2001, 93). The point about stigma suggests that the economic mechanisms of commodification are intertwined with the cul- tural mechanisms of ableism (explored in the next section) – nevertheless, the two have autonomous causal force. Therefore, economic mechanisms need to be addressed in sys- temic rather than communicative terms (e.g. in terms of creation and appropriation of value rather than construction of meaning) and require a distinctive strategy of redistribution that could correspond to but does not coincide with the strategy of recognition (see Vehmas and Watson 2014, 647). What does such a strategy look like? The foregoing analysis suggests that a transformative strategy of redistribution which seeks to decommodify labour should necessarily take disability into account. Labour could be effectively decommodified only when: the access to disability support is improved by liberalising disability assessment; the access to disability support is decoupled from means-testing, prior contributions and workfare conditionality; and disability support is expanded to ensure proper standard of living for those who rely on it. An actual benefit approximating this ideal type was the Disability Living Allowance (DLA) in the United Kingdom (Roulstone and Prideaux 2012, 162). The DLA was designed to cover the additional DISABILITY & SOCIETY 7 costs of living with impairment in present-day society and, according to Morris (2011, 4), was ‘the only aspect of the benefit system [in the United Kingdom] which [was] implicitly based on creating a “level playing field” for disabled people’. Notably, the DLA was non-means tested, non-contributory and free from workfare conditionality. As such, it was based on ‘a mixture of welfare and rights thinking’ rather than ‘simple compensation’ (Roulstone and Prideaux 2012, 53). A transformative strategy of redistribution that seeks to decommodify labour would thus advocate for public provision of disability support based on principles approximating those incorporated in the United Kingdom’s DLA. Since 2013, the DLA for people of working age has been gradually replaced by the more restrictive Personal Independence Payment (Roulstone 2015). This transformation has been part of a wider programme of austerity (Dodd 2016; Mladenov 2014). Disabled people in the United Kingdom have been amongst the ‘disproportionally affected’ (Taylor-Robinson, Whitehead, and Barr 2014) by the cuts to public services systematically implemented since 2010. The impact of these cuts on disability policy in the United Kingdom has been described as ‘systematic retrogression’ by disability organ- isations (Inclusion London 2015) and a ‘great leap backwards’ by policy analysis (Taylor- Robinson, Whitehead, and Barr 2014). Besides the already mentioned retrenchment of the DLA, disability-related austerity has also included the retrenchment of the Employment and Support Allowance, the closure of the Independent Living Fund2 and the cuts to local author- ities’ funding for social care (Mladenov 2014). As an urgent priority, a transformative strategy of redistribution that seeks to decommodify labour needs to address these cuts to disability support advanced by the agenda of austerity. Disability and cultural recognition On the level of culture, capitalism generates misrecognition by promoting self-sufficiency.3 Although self-sufficiency is not the only term that confers cultural value within capitalism, it is certainly a key one. The paradigmatic subject of capitalism is the rational utility maximiser who is free from social and natural restraints or external interferences. In the era of neoliberal capitalism, this subject is sleepless, tireless, hyper-able, flexible and mobile, continuously enhancing one’s capacity to produce and consume (Crary 2014): A subject of (market) choice and a consumer of services, this individual is obligated to enhance her quality of life through her own decisions. In this new ‘care of self,’ everyone is an expert on herself, responsible for managing her own human capital to maximal effect. (Fraser 2003, 168) This overvaluation of self-sufficiency has a negative recognitive impact on those involved in caring relationships such as women and disabled people (Hughes et al. 2005); it forces the latter ‘to embolden the ability side of the dis/ability complex in order to survive, hopefully thrive, but definitely make do and mend’ (Goodley, Lawthom, and Runswick-Cole 2014, 981). Therefore, a transformative strategy of recognition would seek to deconstruct self-sufficiency – for example, by exposing self-sufficiency as rooted in relations of interdependence. This point could be clarified by juxtaposing critiques of self-sufficiency focused on gender with those concerned with disability. Utilising the perspective of gender, Fraser and Gordon (1994) point out that in pre- industrial societies dependence was a nearly universal and therefore normalised condition that did not entail moral-psychological stigma. Pre-industrial women were dependent but so were most pre-industrial men, which precluded feminisation of dependence. On this 8 T. MLADENOV basis, Fraser and Gordon (1994) argue that, in the pre-industrial phase of historical development, to be economically, socio-legally and politically dependent did not entail stigma. But what about dependence on assistance, be it physical, emotional or cognitive? Histories of disability suggest that premodern societies in Europe stigmatised disabled peo- ple for their appearance or behaviour but not for their reliance on external support: ‘There is significant evidence that people with disabilities used networks of support in their com- munities to survive in times that were harsh for nearly everyone’ (Braddock and Parish 2001, 21). In other words, similarly to economic dependence, dependence on support was wide- spread and was therefore equally normalised in premodern Europe. Consequently, at least until the onset of modernity in the fifteenth and sixteenth centuries, it was uncommon to construct disabled people as deviant due to their perceived dependence (Finkelstein 1980; Oliver and Barnes 2012) – in this regard, disabled people were not only like women, but also like most of the men. With the advance of industrial capitalism in the eighteenth and nineteenth centuries, self-sufficiency gradually became the norm and dependence – a deviation. The (hitherto strong) association between wage labour and dependence was weakened and, eventually, effaced: ‘Radical workingmen, who had earlier rejected wage labor as “wage slavery,” claimed a new form of manly independence within it’ (Fraser and Gordon 1994, 315–316). This shift allowed male workers to (falsely) perceive themselves and be perceived as self-sufficient, but the corollary was the feminisation, marginalisation and, eventually, stigmatisation of dependence (in all its forms, but now excluding wage labour). The demise of welfarism and the rise of neoliberalism in the post-industrial age further devalued dependence. The pres- sure to engage in wage labour extended towards women, as well as towards disabled people. Two-earner families became the norm, public campaigns stigmatised ‘dependency culture’, receipt of benefits became conditional on labour market participation and eligibility criteria were tightened. ‘In this context, the worker tends to become the universal social subject: everyone is expected to “work” and to be “self-supporting.” Any adult not perceived as a worker shoulders a heavier burden of self-justification’ (1994, 324). This analysis suggests that the cultural norm of self-sufficiency is intrinsically related to the economic mechanism of commodification of labour explored in the previous section. However, it would be a mis- take to reduce self-sufficiency to a superstructural manifestation of underlying economic forces – as a cultural norm, self-sufficiency is relatively autonomous and should be analysed and challenged in its own right. With the development of capitalism, self-sufficiency has become deeply embedded in public and private discourses that, on their behalf, have become sufficiently differentiated from the economic order of society to merit separate analysis (Fraser 2000, 118). Fraser and Gordon’s (1994) ‘genealogy of dependency’ exposes the stigmatisation of dependence as a historically contingent cultural construct, highlights the disparaged expe- rience of women as traditional caregivers, and on this basis valorises interdependence. Their analysis thus engages in a transformative politics of recognition that deconstructs self- sufficiency. This approach is highly relevant to disability because the experience of disabled people as care-receivers has been similarly disparaged by the capitalist overvaluation of self-sufficiency. Until relatively recently, both caregivers and care-receivers were completely excluded from wage labour and with this also excluded from the opportunity to acquire the status of self-sufficient individuals, however fake this status has been in the case of wage labourers. In consequence, both female caregivers and disabled care-receivers have DISABILITY & SOCIETY 9 maintained strong experiential and cultural links with interdependence – links that have been broken in the case of allegedly self-sufficient (male, able-bodied) wage labourers, and links that could provide the excluded with a common ground for deconstructing self- sufficiency. Unsurprisingly, several disability scholars have recognised the value of Fraser and Gordon’s feminist ‘genealogy of dependency’ – Christensen (2009) has used it a comparative study of cash-for-care policies in the United Kingdom and Norway; Hartblay (2014) in an analysis of disability in post-Soviet Russia; and Watson et al. (2004) in a critical review of feminist and disability perspectives on care. Seen from the perspective of disability, the feminist valorisation of interdependence informed by the experiences of caregivers risks an ableist slippage without taking into account the position of care-receivers. Activists and thinkers within disability studies have been suspicious of the term ‘care’ because of its historical association with paternalism, benevolence and charity: ‘For many disabled people the concept “care” is both patronising and oppressive’ (Oliver and Barnes 2012, 66; see also Watson et al. 2004, 335). Sharing these concerns, in my own work I have abstained, as much as possible, from talking about ‘care’ and instead have used terms connoting contract such as ‘support’ or ‘assistance’ (Mladenov 2015a). The discourse of contract is favoured by the Independent Living advocates because it challenges paternalism (Watson et al. 2004, 336–338), but it also tends to cover up relations of interdependence (Mladenov 2012). Feminist ethics of care, as opposed to capitalist work ethic, is a more promising way to illuminate and valorise interdependence (Watson et al. 2004). That said, the perspective of the caregiver endorsed by feminists needs to be com- plemented by the perspective of the recipient of care highlighted by disability scholars – otherwise, the citizenship of the former could overpower the citizenship of the latter. A reconciliatory fusion of perspectives is proposed by Hughes et al.: the parties involved in the caring relationship are perpetually invalidated because the value of care is measured against the autonomous adult male who neither requires nor delivers care. To be a carer or cared for – male or female, disabled or non-disabled in either role – is to be found wanting, to be other in relation to the masculine subject of modernity, to be reduced to ‘the other of the same’. Those who give and receive care are marginalized, ‘used and wasted’ bodies, existing, by and large, on the margins of what counts as the truly human community. (2005, 265) A transformative strategy of recognition that deconstructs self-sufficiency ‘think[s] past or beyond a world in which women and disabled people are constituted as the “negative of the positive”, as inferior or defective men’ (Hughes et al. 2005, 269). Thus it reconciles the interests of caregivers, the overwhelming majority of whom are women, with the interests of care-receivers, a great number of whom are disabled people. Critical disability studies emphasises that all humans rely on infrastructures and relations of support (Mladenov 2015a). We are just temporarily able-bodied, but even when able-bodied we are still inter- dependent – it is just that in such periods, the infrastructures of support and care that we depend on remain invisible or unrecognised, receding in the background of familiarity or hidden in the realm of the ‘private’. Finkelstein’s seminal phenomenology of ‘hand washing’ clearly illuminates this point: The fact that an able-bodied person requires a wash-basin, tap, plumbing and so on, as well as an army of people to plan, build and maintain the water works so that he or she can wash indicates that dependency is not unique to disabled people. (1980, 25; original emphasis) The disability studies perspective complements the insights of feminists into care by suggesting that self-sufficiency could be effectively deconstructed only when: the 10 T. MLADENOV interdependence illuminated by disabled people’s lives and experiences is universalised and normalised; and the self-sufficiency experienced by able-bodied people is unmasked as underpinned by infrastructures of support and caring relationships. This task requires con- fronting mainstream cultural patterns that overvalue self-sufficiency and devalue interde- pendence. In the United Kingdom, right-wing think tanks such as the Centre for Policy Studies and the Centre for Social Justice, in tandem with conservative media, have engaged in a widespread stigmatisation of ‘dependency’ through the discourse of ‘welfare dependency’. Take, for example, the following excerpt from an article in The Telegraph titled ‘The Destructive Effect of Dependency on the State’: The CPS [Centre for Policy Studies] estimates that under the levels of state spending envisaged by Labour there would be an additional 750,000 households in dependency by 2020. As the report observes, this is an economically and socially destructive phenomenon which blunts work incentives and has the pernicious effect of engendering a culture of low aspirations in some communities. The welfare state should be about protecting the vulnerable in their times of need and helping them back to self-reliance.4 (Emphases added) A transformative strategy of recognition which seeks to deconstruct self-sufficiency would confront this talk about ‘self-reliance-sapping culture of welfare dependency’5 that has already penetrated the common sense of the general public. As with the undermining of social support highlighted in the previous section, the ‘welfare dependency’ discourse has been an integral part of the austerity agenda imposed on the British society in the aftermath of the financial crisis of 2008. This agenda has relied heavily on stigmatisation of disabled people as welfare ‘burdens’ and ‘benefit scroungers’ (Dodd 2016; Mladenov 2014). As an urgent priority, a transformative strategy of recognition that seeks to deconstruct self- sufficiency needs to address the cultural devaluation of disability incorporated in the aus- terity agenda. Disability and political representation On the level of political participation, misrepresentation is generated by keeping democracy national in a capitalist system that is transnational. This is not the only mechanism for under- mining democratic justice under capitalism, but it is a key one and its salience has increased with globalisation. Restricting the opportunities for democratic participation to the citizens of the nation-state makes it impossible for many of those affected by the economic and cultural injustices generated by transnational capital to make claims for redistribution and recognition. This disjunction between national framing of political membership and trans- national socio-economic structures, although far from being new, has become especially pronounced since the onset of globalisation in the late twentieth century. The ensuing polit- ical injustice has been termed ‘misframing’ by Fraser (2005, 8; original emphasis): ‘Here the injustice arises when the community’s boundaries are drawn in such a way as to wrongly exclude some people from the chance to participate at all in its authorized contests over justice.’ In order to redress the injustice of misframing, a transformative strategy of representa- tion would seek to transnationalise democracy – for example, by reconstituting the public sphere along transnational lines (Fraser 2007). My argument is that disability has a central role to play in such efforts. This argument is supported by research in the emerging field of transnational disability studies (for example, McRuer 2010; Meekosha 2011; Sherry 2007). Building on this expanding DISABILITY & SOCIETY 11 body of work, Soldatic (2013) and Soldatic and Grech (2014) have suggested that the pro- duction of impairment – which they conceptualise as the bodily component of disability – makes visible the structural violence of colonialism and globalisation, the otherwise ‘invisible debts of the global North that are owed to the South’ (Soldatic 2013, 749). In this account, produced impairment is a material trace left by the capitalist world-system on subaltern people’s bodies. As such, it becomes a ground for challenging, in a uniquely powerful way, the national misframing of political contestation and decision-making in view of its negative implications: for the free movement of disabled people across borders, whether this is forced migration such as disabled refugees and asylum seekers, for disabled citizens who are seeking to make claims against a nation state to which they are not a citizen, or for disabled citizens residing within the South who wish to make claims against transnational institutions such as the World Bank, WTO, and the IMF for the devastating impacts of their economic and social restructuring programs on local livelihoods, communities and environments. (Soldatic and Grech 2014, n.p.) For disability studies and activism, the significance of embracing a transnational perspective is potentially as far-reaching as was the significance of embracing the social model of disability in the 1980s and the 1990s (Oliver 1996). The social model challenged the individual or medical model on the basis of a paradigmatic shift from methodological individualism to methodological holism. Similarly, what could be identified in the work of transnational disability scholars as an emerging transnational model of disability challenges the national framing of disability issues by promoting a paradigmatic shift away from ‘methodological nationalism’ (Beck 2006, 24). Such a shift is pivotal when it comes to exploring disability in the Global South, because disability here ‘is firmly linked to northern imperialism, centuries of colonisation and globalisation’ (Meekosha 2011, 671). Considering that the overwhelming majority of disabled people reside in the Global South, it follows that only a transnational model of disability could effectively address the issues faced by most of the disabled people in the world. The importance of transnationalisation for disability studies seems undeniable, but what could disability add to the transnational perspective? In the approach proposed by Soldatic (2013) and Soldatic and Grech (2014), the bodily component of disability is historicised, contextualised and foregrounded to underpin transnationalisation of democracy. Here, pro- duced impairments provide a unique and powerful justification for including non-citizens in the public sphere according to the ‘all-affected principle’. This principle holds that ‘what turns a collection of people into fellow members of a public is not shared citizenship, but their co-imbrication in a common set of structures and/or institutions that affect their lives’ (Fraser 2007, 22). In brief, produced impairments illuminate transnational ‘affectedness’ like no other personal characteristic and in this sense are central to a transformative strategy of political representation that seeks to transnationalise democracy. Let me provide an example. The collapse of the Rana Plaza building in 2013 in Dhaka, Bangladesh, killed more than 1100 garment factory workers and injured over 2000 (Human Rights Watch 2015). These people – mostly women from rural areas – produced clothes for prominent international fashion brands. They lost their lives or were injured as a result of an accident precipitated by unsafe and grossly exploitative working conditions. Their injuries illuminated the ways in which workers in Bangladesh are negatively affected by the prof- it-seeking activities of the international garment industry: 12 T. MLADENOV Some of this [abuse of workers] can also be blamed on the branded retailers who place bulk orders and say ‘Scale up production lines because it is a big order, and improve your margins.’ Even 2–3 cents can make the difference, but these companies don’t want to factor in [labor rights and safety] compliance into costing. (Bangladeshi garment factory owner as quoted in Human Rights Watch 2015, 9) The public recognition that garment factory workers in Dhaka were (bodily) affected by global structures of capital accumulation justified demands for redistribution on a transna- tional scale. In the aftermath of the collapse of the Rana Plaza building, a global fund was set up to secure financial support for the victims6 and international retailers were publicly admonished to contribute (Human Rights Watch 2015, 66–67). In 2015, the General Secretary of the British Trade Union Congress wrote in an open letter to the Chairmen of the Benetton Group: ‘Benetton was one of the companies with a relationship with at least one of the factories housed in the Rana Plaza building. As such your company has a responsibility for ensuring those families affected receive the compensation they need’ (TUC 2015, n.p.; emphasis added). The produced impairments of the workers in Dhaka illuminated transnational affected- ness, shaped transnational public opinion and justified demands for transnational redistri- bution (albeit an affirmative rather than a transformative one). It may be argued that the motivation of international companies to compensate affected workers boils down to fears of falling profits due to reputational damage. However, such an explanation does not justify a reduction of ‘the political’ to ‘the economic’ because it still admits that economic pressure on international retailers has mounted as a result of political pressure underpinned by trans- nationalisation of democracy. More difficult is the question of whether the rendering of disability in terms of a produced impairment that illuminates transnational affectedness reduces disability to a sign of indi- vidual inferiority, a conventional metaphor of personal tragedy, an individualised and med- icalised ‘symbol of the evils of colonialism’ (Sherry 2007, 14). Jonathan Crary’s (2014) recourse to autism in his critique of techno-capitalism summarised in the Introduction to this article is illustrative of such a reduction of disability to individual pathology for the purposes of critique. According to Mark Sherry (2007, 16), ‘[r]ather than simply bemoan disability as a symbol of the horrors of imperialism, a far more interesting approach is to unpack the power dynamics which link the two experiences, both in practice and in rhetoric’. Responding to Sherry (2007), Soldatic and Grech (2014, n.p., n. 3) argue that their recourse to impairment is socio-political and material rather than cultural or symbolic. Still, the condemnation of the material production of impairment advanced by Soldatic and Grech remains in tension with the cultural celebration of disability favoured by Sherry. A suggestion for how to overcome this tension while advancing a transformative politics of representation on the basis of pro- duced impairments could be found in the work of Abberley (1987). I will summarise his approach in the final section of this article. Conclusion Let me recap the arguments so far presented. According to Fraser, social justice means parity of participation. Parity of participation requires strategies of economic redistribution, cultural recognition and political representation. Such strategies are either affirmative or transform- ative, but only the latter achieve real change. Capitalism could be transformed economically DISABILITY & SOCIETY 13 by decommodifying labour, culturally by deconstructing self-sufficiency, and politically by transnationalising democracy. Yet to be really transformative, decommodification of labour needs to enhance disability support and deconstruction of self-sufficiency – to valorise interdependence illuminated by disabled people’s lives by emphasising its universality and highlighting the ways in which interdependence underpins self-sufficiency. On its behalf, transnationalisation of democracy needs to make recourse to produced impairments in order to reveal affectedness, but this strategy bears the risk of devaluing non-conforming bodies and experiences and should be approached with caution. The redistributive enhancement of disability support interacts with the recognitive val- orisation of disability-illuminated interdependence in a mutually reinforcing way. Improving the access to disability support and increasing the entitlements associated with it strengthen the understanding of disability-illuminated interdependence as universal and natural. On its behalf, universalising and naturalising disability-illuminated interdependence legitimises the expansion of disability support. This interrelationship is key when addressing the aus- terity agenda because the latter brings about material deprivation and cultural devaluation in similarly mutually reinforcing loops (Dodd 2016, 154; Mladenov 2014). Using the perspective of gender, Fraser (2013, 133–135) has argued that social justice could be achieved by transforming public policy and attitudes according to a ‘universal caregiver’ model. This model promotes the caregiving of men, thus providing the conditions for men to become more like women have traditionally been. The disability perspective espoused by this article suggests that social justice requires complementing ‘universal car- egiving’ with the principle of ‘universal care-receiving’. The latter would normalise and facil- itate care-receiving, thus emphasising the (routinely disavowed) common ground of interdependence that underpins the lives of disabled and non-disabled people alike. An integrated ‘universal caregiver/care-receiver’ model could pave the way to ‘think[ing] past or beyond a world in which women and disabled people are constituted as … inferior or defective men’ (Hughes et al. 2005, 269). The practical measures that promote ‘universal caregiving’ – for example, shorter working week, publicly supported care work (Fraser 2013, 134) – are commensurate with the practical measures promoting ‘universal care-receiving’ – for example, liberalised access to disability support, elimination of means-testing and workfare conditionality, adequate benefit levels. Both advance decommodification of labour and both presuppose deconstruction of self-sufficiency. The transnationalisation of democracy ‘on the grounds of produced impairment emerging from the South’ (Soldatic and Grech 2014, n.p.) provides subaltern people with the oppor- tunity to have a say in the governance of global economic and cultural affairs. On this basis, it becomes possible to advance claims for redistribution and recognition along the lines of ‘universal caregiving/care-receiving’. However, the risk of devaluing non-conforming bodies should be taken into consideration when using impairment to shed light on global injustices. In other words, illumination of transnational affectedness or, to use a sharper term, colonial violence should not overshadow the violence of ableism. A potential way out of this dilemma is Abberley’s (1987, 9) ‘attitude of ambivalence towards impairment’ that allows one to per- ceive impairment simultaneously as something bad and something good: ‘Impairment must be identified as a bad thing, insofar as it is an undesirable consequence of a distorted social development, as the same time as it is held to be a positive attribute of the individual who is impaired.’ Abberley links his ‘attitude of ambivalence’ to a distinction between prevention of the social production of impairments and treatment of impairments that have already 14 T. MLADENOV been produced – from the perspective of the former, impairment is bad; whereas the per- spective of the latter calls for a positive attitude towards impairment. Note also that for Abberley (1987, 11), the overwhelming majority of impairments are produced by conditions of work, consumption or maldistribution under capitalism, and therefore are socially (or, to be more precise, politico-economically) produced. My final point is that the three disability-informed strategies for social transformation promoted in this article, when pursued together, bear the potential to improve parity of participation not only for disabled people, but for everyone else as well. Conversely, disre- garding disability risks enhancing injustice for all. Notes 1. https://leapmanifesto.org/en/the-leap-manifesto/ (accessed October 6, 2016). 2. After the closure of the UK-wide Independent Living Fund (ILF) on 30 June 2015, the responsibility for supporting the existing ILF users was transferred: in England, to local authorities; in Wales, to the Welsh Independent Living Grant; in Scotland and Northern Ireland, to the newly created ILF Scotland. In the case of England, there have been concerns that the funding has not been ring-fenced and has therefore become vulnerable to cuts. 3. Within the liberal framework that ideologically underpins capitalism, ‘self-sufficiency’ is synonymous with ‘independence’. However, within disability thought and activism, the Independent Living movement has shifted the meaning of ‘independence’ from liberal- individualist self-sufficiency to a particular type of interdependence (Mladenov 2012). In order to avoid confusion with the revised ‘independence’ of the Independent Living advocates that has a strong (albeit sometimes implied rather than explicitly stated) emphasis on interdependence, in this text I use the term ‘self-sufficiency’ instead of ‘independence’. 4. The Telegraph, 15 February 2015. http://www.telegraph.co.uk/news/politics/conservative/ 11414430/The-destructive-effect-of-dependency-on-the-state.html (accessed October 6, 2016). 5. Daily Mail, 22 June 2015. http://www.dailymail.co.uk/debate/article-3133927/DAILY-MAIL- COMMENT-Welfare-reforms-benefit-Britain.html (accessed October 6, 2016). 6. http://www.ranaplaza-arrangement.org/ (accessed October 6, 2016). Acknowledgements The author would like to thank the two anonymous referees of the journal for their comments that helped to improve the text. Disclosure statement No potential conflict of interest was reported by the author. Funding This work was supported by the Leverhulme Trust [grant number ECF-2013-246]. Open access for this article was funded by King’s College London. ORCID Teodor Mladenov   http://orcid.org/0000-0002-0623-7952 https://leapmanifesto.org/en/the-leap-manifesto/ http://www.telegraph.co.uk/news/politics/conservative/11414430/The-destructive-effect-of-dependency-on-the-state.html http://www.telegraph.co.uk/news/politics/conservative/11414430/The-destructive-effect-of-dependency-on-the-state.html http://www.dailymail.co.uk/debate/article-3133927/DAILY-MAIL-COMMENT-Welfare-reforms-benefit-Britain.html http://www.dailymail.co.uk/debate/article-3133927/DAILY-MAIL-COMMENT-Welfare-reforms-benefit-Britain.html http://www.ranaplaza-arrangement.org/ http://orcid.org http://orcid.org/0000-0002-0623-7952 DISABILITY & SOCIETY 15 References Abberley, P. 1987. “The Concept of Oppression and the Development of a Social Theory of Disability.” Disability, Handicap & Society 2 (1): 5–19. Beck, U. 2006. The Cosmopolitan Vision. Cambridge: Polity Press. Bérubé, M. 2003. “Citizenship and Disability.” Dissent Magazine, Spring 2003. https://www. dissentmagazine.org/article/citizenship-and-disability. Braddock, D., and S. Parish. 2001. “An Institutional History of Disability.” In Handbook of Disability Studies, edited by G. Albrecht, K. Seelman, and M. Bury, 11–68. London: Sage. Christensen, K. 2009. “In(Ter)Dependent Lives.” Scandinavian Journal of Disability Research 11 (2): 117– 130. Crary, J. 2014. 24/7: Late Capitalism and the Ends of Sleep. London: Verso. Danermark, B., and L. C. Gellerstedt. 2004. “Social Justice: Redistribution and Recognition – A Non- Reductionist Perspective on Disability.” Disability & Society 19 (4): 339–353. Davis, L. J. 2002. Bending over Backwards: Disability, Dismodernism, and Other Difficult Positions. New York: New York University Press. Dodd, S. 2016. “Orientating Disability Studies to Disablist Austerity: Applying Fraser’s Insights.” Disability & Society 31 (2): 149–165. Esping-Andersen, G. 1990. The Three Worlds of Welfare Capitalism. Cambridge: Polity Press. Finkelstein, V. 1980. Attitudes and Disabled People: Issues for Discussion. New York: World Rehabilitation Fund. Fraser, N. 1995. “From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age.” New Left Review 212 (July/August 1995): 68–93. Fraser, N. 1996. “Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation.” The Tanner Lectures on Human Values, Stanford University, April 30 – June 2. http:// tannerlectures.utah.edu/_documents/a-to-z/f/Fraser98.pdf. Fraser, N. 2000. “Rethinking Recognition.” New Left Review 3, May–June 2000: 107–120. Fraser, N. 2003. “From Discipline to Flexibilization? Rereading Foucault in the Shadow of Globalization.” Constellations 10 (2): 160–171. Fraser, N. 2005. “Reframing Justice in a Globalizing World.” New Left Review 36: 1–19. Fraser, N. 2007. “Transnationalizing the Public Sphere: On the Legitimacy and Efficacy of Public Opinion in a Post-Westphalian World.” Theory, Culture & Society 24 (4): 7–30. Fraser, N. 2013. Fortunes of Feminism: From State-Managed Capitalism to Neoliberal Crisis. London: Verso. Fraser, N., and L. Gordon. 1994. “A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State.” Signs 19 (2): 309–336. Fraser, N., and A. Honneth. 2003. Redistribution or Recognition? A Political-Philosophical Exchange. London: Verso. Goodley, D., R. Lawthom, and K. Runswick-Cole. 2014. “Dis/Ability and Austerity: Beyond Work and Slow Death.” Disability & Society 29 (6): 980–984. Hartblay, C. 2014. “A Genealogy of (Post-)Soviet Dependency: Disabling Productivity”. Disability Studies Quarterly 34 1 n.p. Hugemark, A., and C. Roman. 2007. “Diversity and Divisions in the Swedish Disability Movement: Disability, Gender, and Social Justice.” Scandinavian Journal of Disability Research 9 (1): 26–45. Hughes, B., L. McKie, D. Hopkins, and N. Watson. 2005. “Love’s Labours Lost? Feminism, the Disabled People’s Movement and an Ethic of Care.” Sociology 39 (2): 259–275. Human Rights Watch. 2015. “Whoever Raises Their Head Suffers the Most.” Workers’ Rights in Bangladesh’s Garment Factories. New York: Human Rights Watch. Inclusion London. 2015. “Evidence of Breaches of Disabled People’s Rights under the UN Convention on the Rights of Persons with Disabilities.” Information Paper’, report published online. London: Inclusion London. https://www.inclusionlondon.org.uk/campaigns-and-policy/facts-and-information/equa- lity-and-human-rights/evidence-of-breaches-of-disabled-peoples-rights-under-the-un-convention- on-the-rights-of-persons-with-disabilities/. Klein, N. 2016. “Let’s Make This a Real ‘Leap’ Year, and Go Fossil Fuel-Free”, The Guardian. Accessed 4 February 2016. http://www.theguardian.com/commentisfree/2016/feb/04/leap-year-fossil-fuel- leap-maifesto-naomi-klein https://www.dissentmagazine.org/article/citizenship-and-disability https://www.dissentmagazine.org/article/citizenship-and-disability http://tannerlectures.utah.edu/_documents/a-to-z/f/Fraser98.pdf http://tannerlectures.utah.edu/_documents/a-to-z/f/Fraser98.pdf https://www.inclusionlondon.org.uk/campaigns-and-policy/facts-and-information/equality-and-human-rights/evidence-of-breaches-of-disabled-peoples-rights-under-the-un-convention-on-the-rights-of-persons-with-disabilities/ https://www.inclusionlondon.org.uk/campaigns-and-policy/facts-and-information/equality-and-human-rights/evidence-of-breaches-of-disabled-peoples-rights-under-the-un-convention-on-the-rights-of-persons-with-disabilities/ https://www.inclusionlondon.org.uk/campaigns-and-policy/facts-and-information/equality-and-human-rights/evidence-of-breaches-of-disabled-peoples-rights-under-the-un-convention-on-the-rights-of-persons-with-disabilities/ http://www.theguardian.com/commentisfree/2016/feb/04/leap-year-fossil-fuel-leap-maifesto-naomi-klein http://www.theguardian.com/commentisfree/2016/feb/04/leap-year-fossil-fuel-leap-maifesto-naomi-klein 16 T. MLADENOV Marx, K. 1978. ([1849 and 1891]). “Wage Labour and Capital.” In The Marx-Engels Reader, edited by R. C. Tucker, 203–217. New York: W. W. Norton & Company. McRuer, R. 2010. “Disability Nationalism in Crip times.” Journal of Literary & Cultural Disability Studies 4 (2): 163–178. Meekosha, H. 2011. “Decolonising Disability: Thinking and Acting Globally.” Disability & Society 26 (6): 667–682. Meekosha, H., and R. Shuttleworth. 2009. “What’s So ‘Critical’ about Critical Disability Studies?” Australian Journal of Human Rights 15 (1): 47–75. Mitchell, D. T., and S. L. Snyder. 2010. “Disability as Multitude: Re-Working Non-Productive Labor Power.” Journal of Literary & Cultural Disability Studies 4 (2): 179–194. Mladenov, T. 2012. “Personal Assistance for Disabled People and the Understanding of Human Being.” Critical Social Policy 32 (2): 242–261. Mladenov, T. 2014. “Disability and Austerity.” Cost of Living. Accessed August 1 2014. http://www.cost- ofliving.net/disability-and-austerity/ Mladenov, T. 2015a. Critical Theory and Disability: A Phenomenological Approach. New York: Bloomsbury. Mladenov, T. 2015b. "From State Socialist to Neoliberal Productivism: Disability Policy and Invalidation of Disabled People in the Postsocialist Region." Critical Sociology. Advance online publication. doi: 10.1177/0896920515595843. Mladenov, T. 2016. “Postsocialist Disability Matrix.” Scandinavian Journal of Disability Research. Advance online publication. doi:10.1080/15017419.2016.1202860. Morris, J. 2011. “’Rethinking Disability Policy’, a Joseph Rowntree Foundation Report.” London: Joseph Rowntree Foundation. https://www.jrf.org.uk/report/rethinking-disability-policy. Oliver, M. 1996. Understanding Disability: From Theory to Practice. London: Macmillan. Oliver, M., and C. Barnes. 2012. The New Politics of Disablement. Basingstoke: Palgrave Macmillan. Roulstone, A. 2015. “Personal Independence Payments, Welfare Reform and the Shrinking Disability Category.” Disability & Society 30 (5): 673–688. Roulstone, A., and S. Prideaux. 2012. Understanding Disability Policy. Bristol: The Policy Press. Russell, M. 2001. “Disablement, Oppression, and the Political Economy.” Journal of Disability Policy Studies 12 (2): 87–95. Russell, M. 2002. “What Disability Civil Rights Cannot Do: Employment and Political Economy.” Disability & Society 17 (2): 117–135. Shakespeare, T. 1994. “Cultural Representation of Disabled People: Dustbins for Disavowal?” Disability & Society 9 (3): 283–299. Sherry, M. 2007. “(Post)Colonising Disability.” Wagadu – A Journal of Transnational Women’s and Gender Studies 4 Summer 2007: 10–22. Soldatic, K. 2013. “The Transnational Sphere of Justice: Disability Praxis and the Politics of Impairment.” Disability & Society 28 (6): 744–755. Soldatic, K., and S. Grech 2014. “Transnationalising Disability Studies: Rights, Justice and Impairment.” Disability Studies Quarterly 34 2, n.p. Stone, D. 1984. The Disabled State. London: Macmillan. Taylor-Robinson, D., M. Whitehead, and B. Barr. 2014. “Great Leap Backwards: The UK’s Austerity Programme Has Disproportionately Affected Children and People with Disabilities.” BMJ 349: g7350. TUC. 2015. “TUC Urges Benetton to Compensate Rana Plaza Victims.” letter by Frances O’Grady published online at. https://www.tuc.org.uk/international-issues/globalisation/international-development/ global-economic-justice-campaigns/tuc-rana-plaza-compensation. UPIAS. 1976. Fundamental Principles of Disability. London: Union of the Physically Impaired Against Segregation. http://www.leeds.ac.uk/disability-studies/archiveuk/UPIAS/fundamental%20principles.pdf. Vehmas, S., and N. Watson. 2014. “Moral Wrongs, Disadvantages, and Disability: A Critique of Critical Disability Studies.” Disability & Society 29 (4): 638–650. Watson, N., L. McKie, B. Hughes, D. Hopkins, and S. Gregory. 2004. “(Inter)Dependence, Needs and Care: The Potential for Disability and Feminist Theorists to Develop an Emancipatory Model.” Sociology 38 (2): 331–350. http://www.cost-ofliving.net/disability-and-austerity/ http://www.cost-ofliving.net/disability-and-austerity/ http://dx.doi.org/10.1177/0896920515595843 http://dx.doi.org/10.1080/15017419.2016.1202860. https://www.jrf.org.uk/report/rethinking-disability-policy https://www.tuc.org.uk/international-issues/globalisation/international-development/global-economic-justice-campaigns/tuc-rana-plaza-compensation https://www.tuc.org.uk/international-issues/globalisation/international-development/global-economic-justice-campaigns/tuc-rana-plaza-compensation http://www.leeds.ac.uk/disability-studies/archiveuk/UPIAS/fundamental%20principles.pdf Abstract Pointsofinterest Introduction Fraser’stheoryofsocialjustice Disabilityandeconomicredistribution Disabilityandculturalrecognition Disabilityandpoliticalrepresentation Conclusion Notes Acknowledgements Disclosurestatement Funding References 
work_qsx6lkrlxnb5dm6kijt772s3n4	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221738400 Params is empty 221738400 exception Params is empty 2021/04/06-03:20:36 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221738400 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:36 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_quod7qr6nbc5jcqryzt7jpssvi	----	Social Justice and Adult Education | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.4018/javet.2012100102 Corpus ID: 42842651Social Justice and Adult Education @article{Russo2012SocialJA, title={Social Justice and Adult Education}, author={M. Russo}, journal={Int. J. Adult Vocat. Educ. Technol.}, year={2012}, volume={3}, pages={14-23} } M. Russo Published 2012 Sociology, Computer Science Int. J. Adult Vocat. Educ. Technol. It should be understood that the importance of adult education is to illuminate the current context in which the adult functions. This adult frames directly linked with the construct of social justice. Adult education is examined under two frames: a Merriam and Brockett 1997 who define adult education as "'activities intentionally designed for the purpose of bringing about learning among those whose age, social roles, or self-perception define them as adults" and, b Horton's philosophy… Expand View via Publisher igi-global.com Save to Library Create Alert Cite Launch Research Feed Share This Paper 2 CitationsBackground Citations 1 View All 2 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Street Papers: An Educational Tool for Social Change A. Zeballos, M. Daniela Sociology 2020 PDF View 1 excerpt, cites background Save Alert Research Feed The Mind-Body-Spirit Learning Model Transformative Learning Connections to Holistic Perspectives: Seizing Control of Your Healthcare - The Relationship among Self-Agency, Transformative Learning, and Wellness K. King Sociology, Computer Science Int. J. Adult Vocat. Educ. Technol. 2012 9 Save Alert Research Feed References SHOWING 1-10 OF 46 REFERENCES SORT BYRelevance Most Influenced Papers Recency Beyond 2000: Future Directions for Adult Education. T. Sticht Political Science 1998 15 PDF Save Alert Research Feed The Profession and Practice of Adult Education: An Introduction. The Jossey-Bass Higher and Adult Education Series. S. Merriam, Ralph G. Brockett Medicine 1996 267 Save Alert Research Feed Teaching Computers to Adults: The Case Study of the State Institutes of Further Education in Cyprus Y. Karagiorgi, Maria Gravani Psychology, Computer Science Int. J. Digit. Lit. Digit. Competence 2012 9 Save Alert Research Feed Values, education, and the adult R. Paterson Political Science 1979 77 View 1 excerpt, references background Save Alert Research Feed Schooling and Work in the Democratic State. J. Wrigley, M. Carnoy, H. Levin Sociology 1985 496 Save Alert Research Feed The Intellectuals And Socialism F. Hayek Political Science 2010 162 Save Alert Research Feed Karl Marx and the Paris Commune of 1871: Tracing Traditions of Critical Pedagogy R. McGray Sociology, Computer Science Int. J. Adult Vocat. Educ. Technol. 2014 3 Save Alert Research Feed W. E. B. Du Bois’s Basic American Negro Creed and the Associates in Negro Folk Education T. Guy, S. Brookfield Sociology 2009 12 Save Alert Research Feed Interests as a Component of Adult Course Preferences: Four Australian Case Studies J. Athanasou Psychology, Computer Science Int. J. Adult Vocat. Educ. Technol. 2013 5 Save Alert Research Feed Assessment and learning partnerships in an online environment P. Griffin, E. Care, Pamela Robertson, Judith Crigan, N. Awwal, M. Pavlović Psychology 2014 5 Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract 2 Citations 46 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_qvng7je7ize7nmwck56qrzslam	----	Effects of Electronic Monitoring Types on Perceptions of Procedural Justice, Interpersonal Justice, and Privacy1 Effects of Electronic Monitoring Types on Perceptions of Procedural Justice, Interpersonal Justice, and Privacy1 Laurel A. McNall2 State University of New York, College at Brockport Sylvia G. Roch University at Albany, State University of New York Electronic performance monitoring and control systems (EPMCSs) are raising fair- ness and privacy concerns in many organizations. Researchers typically have treated different types of EPMCSs as equal, yet various EPMCS types (e.g., computer monitoring, eavesdropping, surveillance) may exert differential influences on fair- ness and privacy perceptions. In this study, 246 participants read scenarios describ- ing different technologies for evaluating performance. Results indicated that EPMCS types significantly influenced perceptions of procedural justice, interper- sonal justice, and privacy. Computer monitoring was perceived as the most proce- durally just; but traditional direct observation by a supervisor without electronic monitoring was perceived as the most interpersonally just, and the least invasive in terms of privacy. These findings suggest that employers should be cautious in the type of monitoring used. Consumers often hear “this call may be monitored or taped for quality commitment purposes,” or “this call may be recorded so we can serve you better.” The obsession with monitoring is reflective of the exponential growth in technological capability in the past decade (Griffith, Northcraft, & Fuller, 1998). Electronic performance monitoring and control systems (EPMCSs) can be defined as systems in which electronic technologies are used to collect, store, analyze, and report the actions or performance of workers (Alge, 2001; Nebeker & Tatum, 1993). In 2001, the American Management Association reported that more than three quarters of major U.S. firms (77%) record and review employee communications and activities on the job. A more recent survey found that a wide variety of techniques are being used for monitoring. In particular, 36% of organizations track content keystrokes, and time spent at the keyboard; 50% store and review computer files; 51% monitor telephone use; and 51% engage in video monitoring (American Management Associa- tion & The ePolicy Institute, 2005). Critics argue that the proliferation of 1A portion of this manuscript was presented at the April 2004 annual meeting of the Society for Industrial and Organizational Psychologists in Chicago, Illinois. 2Correspondence concerning this article should be addressed to Laurel A. McNall, State University of New York, College at Brockport, 350 New Campus Drive, Brockport, NY 12203. E-mail: lmcnall@brockport.edu 658 Journal of Applied Social Psychology, 2007, 37, 3, pp. 658–682. © 2007 Copyright the Authors Journal compilation © 2007 Blackwell Publishing, Inc. sophisticated monitoring technologies brings concerns over invasion of privacy (U.S. Office of Technology Assessment, 1987), stress (Nussbaum & duRivage, 1986; Smith, Carayon, Sanders, Lim, & LeGrande, 1992), and deterioration of morale (McLaughlin, 1989). On the other hand, proponents argue that EPMCSs provide employees with more feedback and more objec- tive performance evaluations (Fenner, Lerch, & Kulik, 1993; Grant & Higgins, 1989) while increasing productivity levels (Bylinsky, 1991). In light of such conflicting arguments, there appears to be no clear-cut answer to the controversy surrounding EPMCSs. According to Ambrose and Alder (2000), the use of a justice framework provides insight into the factors that lead to acceptance of EPMCSs. That is, when organizations design, implement, and utilize monitoring systems in a manner consistent with organizational justice rules, employees’ reactions to monitoring will be more positive. One important factor that has not been previously studied but that may have potentially important implications for both justice and privacy percep- tions is the type of EPMCSs used. Thus, the purpose of the present study is to investigate the effects of different types of EPMCSs on procedural justice, which is feelings of fairness about the procedures used to make decisions (e.g., Colquitt, Conlon, Wesson, Porter, & Ng, 2001); and interpersonal justice, which is the extent to which people are treated with politeness, dignity, and respect by an authority enacting a procedure (Colquitt et al., 2001). In addition, the study also examines the impact of EPMCSs on privacy, which is the extent to which individuals believe they have control over their personal information (Stone & Stone, 1990). Alge (2001) demon- strated that privacy plays an important role in justice-based models of EPMCSs. Organizational Justice and EPMCSs In recent years, organizations have recognized the importance of their employees’ fairness concerns (Greenberg, 1990). Early work in organizational justice focused on distributive justice, or the fairness of outcomes and conse- quences of organizational processes and decisions (Greenberg, 1987). Thibaut and Walker’s (1975) research on legal procedures shifted the focus of organi- zational justice to the process by which outcomes are determined. Thibaut and Walker showed how control over the process or input in the process is associated positively with perceptions of procedural justice. Leventhal (1980) extended this research by suggesting that perceptions of procedural justice are based on the extent to which the decision process is consistent, free of bias, accurate, correctable, representative, and ethical. Bies and Moag (1986) intro- duced a third type of justice by turning attention to the importance of the ELECTRONIC PERFORMANCE MONITORING 659 interpersonal treatment people receive when procedures are implemented, or interactional justice. More recently, Colquitt (2001) indicated that interac- tional justice actually is composed of two types of justice. Interpersonal justice is associated with the interpersonal treatment by an authority figure, whereas informational justice is associated with the adequacy of explanations offered by an authority figure. Colquitt found that interpersonal and informational justice were highly correlated, but not so highly correlated as to combine them into one overall interactional justice measure. According to Stanton (2000), organizational justice provides a framework for predicting the perceived fairness of EPMCSs. Most researchers have focused solely on perceptions of procedural justice under conditions of elec- tronic monitoring because employees are most commonly concerned about how an outcome was determined, rather than the actual outcome itself. Kidwell and Bennett (1994b) found that procedural justice was an important antecedent in determining employees’ reactions to EPMCSs. Ambrose and Alder (2000) also included procedural justice in their com- prehensive model of computer performance monitoring, which they based on previous frameworks (Carayon, 1993; Grant & Higgins, 1989; Hawk, 1994). They argued that particular dimensions of EPMCSs should influence various procedural justice rules, which in turn should drive perceptions of procedural justice. Especially relevant to the current study is Ambrose and Alder’s tasks-monitored dimension. They argued that EPMCSs can monitor a larger number of worker activities and, consequently, employers must decide which activities to monitor (Ambrose & Alder, 2000). Ambrose, Alder, and Noel (1998) distinguished between clearly task-related activities (e.g., handling customer requests during working hours) and non-task-related activities (e.g., using the bathroom during scheduled breaks). Alder and Tompkins (1997) argued that organizations should capture only legitimate, work- related activities, which should result in greater perceptions of procedural justice. The decision to use EPMCSs to monitor particular types of tasks has implications for two of Leventhal’s (1980) procedural justice rules. First, the ethicality rule of procedural justice states that “allocative procedures must be compatible with the fundamental moral and ethical values accepted by that individual” (p. 45). Leventhal goes on to say that “the ethicality rule may dictate that methods of observation that . . . invade privacy are unfair” (p. 46). When employers use EPMCSs to collect information that is not related to job performance, employees may feel that monitoring procedures violate their expectation of privacy, which creates perceptions of injustice (Ambrose & Alder, 2000). Second, EPMCSs may violate the accuracy rule of procedural justice because this rule requires that organizations monitor activities directly 660 MCNALL AND ROCH related and clearly tied to successful job performance (Ambrose & Alder, 2000). Opponents of EPMCSs claim that organizations too often rely on quantifiable information because it is easy to measure, but this information is not necessarily the most relevant to job performance. For instance, if a worker’s primary objective is customer service, monitoring the number of keystrokes may be perceived as an inappropriate basis for performance evaluations, which in turn could lead to perceptions of unfairness. Although previous research has not examined the type of tasks captured by EPMCSs, Stanton (2000) examined employees’ beliefs about the accu- racy of monitoring in organizations with traditional and electronic moni- toring techniques. He found that the perceived accuracy of monitoring influenced perceptions of procedural and interactional justice. Based on this research, it seems likely that electronic technologies that capture mostly work-related information will be perceived as more accurate and, conse- quently, more procedurally just. In addition, EPMCSs that focus on work- related information should be related to perceptions of interpersonal justice because Stanton’s measure of interactional justice included interpersonal justice items. Lind and Tyler’s (1988) group-value model may help to explain how the types of tasks monitored by EPMCSs may be related to perceptions of interpersonal justice. According to this model, individuals care about fair treatment from an authority figure (e.g., a supervisor) because they derive a sense of identity and self-worth from fair treatment. When a supervisor monitors non-work-related activities via EPMCSs, the employee may per- ceive interpersonal unfairness because it implies that the employee cannot be trusted, and this could threaten the employee’s self-worth. Ambrose et al. (1998) stated that the “close supervision and visual obser- vation of sensitive nonperformance related areas, like restrooms and locker rooms, can make employees feel . . . as though their dignity has been com- promised” (p. 69). Supervisors could potentially use non-work-related infor- mation from EPMCSs to embarrass and humiliate an employee. According to Bies (2001), when interpersonal treatment conveys disrespect—such as “actions intended to embarrass and humiliate a person” (p. 105)—it should evoke a sense of injustice. It seems that some monitoring procedures, espe- cially ones that capture non-work-related activities, may make it difficult for the supervisor to treat employees with respect and dignity. The knowledge that the supervisor receives certain types of non-work-related information may be sufficient to influence perceptions associated with interpersonal treat- ment. Thus, EPMCSs may have implications for justice perceptions associ- ated not only with organizational procedures, but also with the supervisor (e.g., interpersonal justice). Table 1 presents a summary of the key organiza- tional justice rules that pertain to the current study. ELECTRONIC PERFORMANCE MONITORING 661 Organizational Privacy and EPMCSs Even though organizational justice research has made an important con- tribution to the development of justice-based models of EPMCSs, this research has neglected the role of privacy until recently (Alge, 2001). Accord- ing to Stone and Stone (1990), the concept of privacy has been defined in many ways in a variety of disciplines, resulting in a lack of conceptual clarity. They noted that privacy has been defined as control of information about the self, control over the amount of interactions with others, and freedom from the control of others. For the purposes of the present study, we define privacy from the perspective of information control, such that individuals have privacy when they are able to control information about themselves (Stone & Stone, 1990). Alge (2001) argued that “perceived loss of control can be seen as invasion of privacy” (p. 797). Critics of EPMCSs provide examples of how employers use electronic technologies to invade worker privacy. For instance, oppo- Table 1 Description of Organizational Justice and Privacy Rules Rule/Source Description Procedural justice (Ambrose & Alder, 2000) Accuracy Decisions are based on as much good information as possible Ethicality Procedures are consistent with members’ standards Interpersonal justice (Colquitt, 2001) Interpersonal treatmenta Amount of politeness, dignity, and respect by authorities executing a procedure Invasion of privacy (Bies, 1993) Intrusiveness Psychological impact of information- gathering procedures on individual Relevance of information Decisions are based on relevant information aAmbrose and Alder (2000) considered interpersonal treatment a procedural justice rule. However, evidence from Colquitt (2001) suggests that interpersonal treatment is defined more accurately as interpersonal justice, a justice dimension that is separate and distinct from procedural justice. 662 MCNALL AND ROCH nents cite examples of hidden video cameras in employee dressing rooms and recordings of the number of bathroom trips (Alder & Tompkins, 1997). One worker described a typical workday: “I can’t even go to the bathroom without being watched. I have to put up a flag at my terminal, wait till the rest room is empty, sign out, sign back in, and remove my flag” (Nussbaum & duRivage, 1986, p. 17). Most employees have an expectation of privacy when they engage in the aforementioned activities. The close supervision of non- work-related activities associated with some EPMCS types may be in viola- tion of the expectation of privacy that most workers feel is their right (Ambrose et al., 1998). As mentioned earlier, Leventhal (1980) first articulated a relationship between privacy and procedural justice in his discussion of the ethicality rule. Subsequent empirical research has supported the notion of invasion of privacy and procedural justice as distinct, albeit related constructs (Eddy, Stone, & Romero-Stone, 1999; Racicot & Williams, 1993). Bies (1993) iden- tified privacy factors that also were related to perceptions of procedural justice. Two of these factors—relevance of information used in decision making, and intrusiveness of the information-gathering procedure—may be particularly relevant in the context of EPMCSs. Organizations gather a multitude of information about their employees for many reasons. According to Bies (1993), whether information gathered is viewed as an invasion of privacy may depend on the relevance of the infor- mation. Employers use EPMCSs to collect data on workers’ activities, and the relevance of that information may play a key role in determining if it is viewed as an invasion of privacy. Tolchinsky et al. (1981) found that subjects reported greater levels of invasion of privacy when the data collected were based on personality information (irrelevant), as opposed to performance data (relevant). Similarly, Woodman et al.’s (1982) study of employees in five multinational companies revealed that employees regarded relevance of per- sonal information for organizational decision making as central to percep- tions of invasion of privacy. It is clear that relevance of information derived from research on privacy is very similar to the aforementioned tasks- monitored dimension in the electronic monitoring and procedural justice literature. The procedures used to collect information about workers’ behavior may be considered psychologically intrusive to the individual and, therefore, an invasion of privacy (Bies, 1993). For instance, Stone and Bowden (1989) conducted a study to see if the direct monitoring of providing a urine sample would impact whether an applicant accepted a job offer. Indeed, applicants were more likely to agree to a job offer if they were not monitored while giving a urine sample. Table 1 presents a summary of the key privacy rules that pertain to the present study. ELECTRONIC PERFORMANCE MONITORING 663 EPMCS Types in a Privacy-Procedural-Justice Framework Alge (2001) proposed a framework drawing on procedural justice (Lev- enthal, 1980), justice-based models of EPMCSs (Ambrose & Alder, 2000; Kidwell & Bennett, 1994a), and organizational privacy (Stone & Stone, 1990). In a study of temporary workers, Alge argued that job relevance was an antecedent to privacy and procedural justice. In a high-relevance condi- tion, participants were evaluated on performance-relevant information only; whereas those in a mixed-relevance condition were evaluated on both relevant and non-relevant information (e.g., activities during break time). He found that individuals exposed to EPMCSs that monitored only performance-relevant activities perceived less of an invasion of privacy and enhanced perceptions of procedural justice relative to the mixed-relevance condition. He also found that privacy perceptions fully mediated the rela- tionship between relevance and procedural justice, thus supporting a justice- privacy framework. Although a justice-privacy framework shows great promise for increasing our understanding of reactions to EPCMSs, one major problem remains that has gone largely unaddressed by researchers is that most investigators over- look the extensive range of techniques that organizations use to monitor their employees electronically (Ambrose et al., 1998). All monitoring systems are not created equal. Ambrose et al. argued that EPMCSs can be divided into three broad categories: surveillance, computer monitoring, and eavesdrop- ping. Each can be distinguished by the type of electronic device utilized by the system, the kind of activities captured by the system, and the scope of monitoring (see Table 2). Table 2 Key Characteristics of Three Categories of Monitoring Surveillance Computer monitoring Eavesdropping Type of device Primarily visual Computer hardware/ software Telephonic Scope of monitoring Broad Narrow Moderate Activities monitored Work, non-work Work Primarily work Note. From Ambrose, Alder, and Noel (1998). 664 MCNALL AND ROCH First, electronic surveillance uses visual equipment, typically in the form of video cameras, to observe workers’ behavior and to track movement. Second, computer monitoring uses computer hardware and software to record workers’ computer-driven activities. Third, eavesdropping utilizes telephonic equipment to listen in on telephone conversations or voicemail messages. Each of these three categories of EPMCSs can be compared with the tradi- tional form of monitoring employees, which consists of a supervisor directly observing his or her employees without any electronic devices. Furthermore, Ambrose et al. (1998) argued that it is critical to examine the scope of monitoring and the activities monitored to understand the differences between the various types of EPMCSs. In Ambrose et al.’s sur- veillance category, employees’ work- and non-work-related behaviors are captured, thus making the scope of monitoring very broad and potentially invasive. In contrast, Ambrose et al.’s computer monitoring category only looks at keystroke recording, so the scope of monitoring is much smaller because only employees’ work-related activities are captured. Internet or e-mail monitoring was not part of Ambrose et al.’s (1998) computer moni- toring category, probably because these EPMCSs were not nearly as common at the time of their work as they are today. Hence, the computer monitoring category in this study is limited to keystroke recording, which generates only work-related statistical data and does not include Internet or e-mail monitoring. Finally, the eavesdropping category shares similarities to both of the aforementioned types of monitoring. For example, when a worker’s tele- phone conversation is monitored, the conversation may or may not be work- related. Although the conversation is most likely work-related, there is potential to collect non-work-related materials. Therefore, eavesdropping is unique in that it shares characteristics of both surveillance and computer monitoring. Ambrose et al.’s (1998) proposal to categorize the various forms of EPMCSs has gone unnoticed by most researchers. Instead, researchers have either placed all types of EPMCSs into one category, or have focused on one EPMCS type. For instance, Ambrose and Alder’s (2000) work on enhancing organizational justice referred only to computer performance monitoring. One exception is Stanton’s (2000) research on workers’ perceptions of fair- ness in electronically monitored and traditionally monitored work environ- ments. Stanton found that it is not the type of monitoring per se that influences fairness, but the way monitoring is implemented that matters most. With the exception of Stanton’s (2000) study, no empirical research has been conducted to examine the differences between various categories of EPMCSs; and it should be noted that Stanton only surveyed participants regarding their impressions of electronic monitoring, and did not manipulate ELECTRONIC PERFORMANCE MONITORING 665 the different types of monitoring. Thus, many questions still remain about whether it is even useful to talk about EPMCSs as one broad category or as consisting of several subcategories. Could various types of EPMCSs have different implications based on the kinds of activities captured by the systems? Ambrose et al. (1998) contended that considering all forms of moni- toring under the general label of EPMCSs may mask important differences and inhibit constructive discussions about how to manage EPMCSs. Future research would benefit from knowing if differences exist between EPMCS types and perceptions of fairness and privacy. The Present Study The present study seeks to understand the relationship between EPMCS type and organizational justice and privacy. Drawing on previous research (Alge, 2001; Ambrose & Alder, 2000; Kidwell & Bennett, 1994a), the current study tests the differential effects of EPMCS type on procedural justice, interpersonal justice, and privacy. For the purposes of this study, EPMCSs are divided into Ambrose et al.’s (1998) three major groups (surveillance, computer monitoring, and eavesdropping). The EPMCS categories are also compared to a fourth type of monitoring, termed direct observation. Direct observation is defined as a lack of electronic monitoring, the traditional type of monitoring. That is, the supervisor monitors performance by observation, but does not use any form of electronic technology to gather employee information. To the best of our knowledge, previous research has not com- pared traditional monitoring to the three categories of electronic monitoring put forth by Ambrose et al.; or investigated if different types of EPMCSs result in varying perceptions of procedural justice, interpersonal justice, or privacy. Interpersonal justice in particular has been neglected by researchers investigating EPMCSs. Researchers have demonstrated the importance of procedural justice in electronically monitored work environments (Alge, 2001), but have not investigated the possible influence of EPMCS types on procedural justice. It may be that some types of EPMCSs violate the ethicality and accuracy rules of procedural justice. Thus, EPMCS types that capture mostly task-related activities should be viewed as more ethical and accurate—and, hence, more procedurally fair—than EPMCSs designed to monitor fewer task-related activities. Similarly, employees should perceive their supervisors who use EPMCSs as more respectful and thus, more interpersonally fair, when the EPMCSs capture mostly task-related activities. In contrast, EPMCSs that capture more activities unrelated to the task may violate the interpersonal treatment rule and, consequently, lower perceptions of interpersonal justice. 666 MCNALL AND ROCH Thus, computer monitoring (defined as keystroke recording) should be per- ceived as the most procedurally and interpersonally just since this technique captures only work-related activities. Surveillance should be perceived as the least procedurally and interpersonally just, since this technique captures both work- and non-work-related activities. The following hypotheses are proposed: Hypothesis 1. EPMCS types will differ in terms of perceptions of procedural justice, with computer monitoring perceived as the most procedurally just and surveillance perceived as the least procedurally just. Hypothesis 2. EPMCS types will differ in terms of perceptions of interpersonal justice, with computer monitoring perceived as the most interpersonally just and surveillance perceived as the least procedurally just. Some types of EPMCSs may be perceived as intrusive and as gathering irrelevant information. Employees should perceive EPMCSs that gather rel- evant information in the least intrusive manner as less of an invasion of privacy than EPMCSs that gather irrelevant information in an intrusive manner. Computer monitoring should be perceived as the least invasive in terms of privacy since this technique captures the most relevant information in the least invasive way. Surveillance should be perceived as the greatest invasion of privacy since this technique captures the least relevant informa- tion and, at the same time, is the most intrusive. The following hypothesis is proposed: Hypothesis 3. EPMCS types will differ in terms of perceptions of invasion of privacy, with computer monitoring perceived as the least invasive and surveillance perceived as the most invasive. Alge (2001) suggested that privacy might be an antecedent to procedural justice perceptions. As mentioned previously, he found that invasion of privacy fully mediated the effect of monitoring job-relevant activities on procedural justice. Because various kinds of EPMCSs capture different types of activities (relevant and non-relevant), privacy may mediate the relation- ship between EPMCS type and procedural justice. The following hypothesis is proposed: Hypothesis 4. Privacy will mediate the relationship between EPMCS type and procedural justice. ELECTRONIC PERFORMANCE MONITORING 667 Method Participants Study participants were 248 undergraduates (118 men, 128 women, 2 people did not provide gender information) from a large northeastern uni- versity who completed the experiment in exchange for 1 hr of research credit. Of the participant sample, 96% were between the ages of 18 and 25. With regard to ethnicity, 53% were Caucasian, 7% were African American, 9% were Hispanic American, and 31% were “other.” For work experience, 46% of the sample had 3 to 6 years of experience; and 41% of participants indicated that their employer had monitored their work activities electroni- cally. Measures All self-report scales were rated on a 5-point Likert-type scale ranging from 1 (strongly disagree) to 5 (strongly agree). Procedural justice. Procedural justice was measured using a five-item scale derived from Colquitt (2001). There are two items from Colquitt’s scale that were withheld because the items did not fit the context of the current study. Slight modification of the items was required to make the items appropriate in the present context. Mean alpha across the four types of monitoring was .57. Given the low alpha level, an exploratory factor analysis was conducted, which revealed two factors with an eigenvalue greater than 1. The first factor explained an average of 38.3% of the variance across the four types of monitoring and contained items focusing on accuracy, bias suppression, and consistency, which are procedural justice factors identified by Leventhal (1980). The second factor explained an average of 21.5% of the variance across the four types of monitoring and contained items on ethicality and influence. Because the items loading on the first factor were more closely related to the definition of procedural justice, these items were used to measure procedural justice. Mean alpha across the four types of monitoring using the first factor was .62. A sample item is “The procedures that would be used to monitor my perfor- mance will be applied consistently.” Interpersonal justice. Interpersonal justice was measured using a three- item scale from Colquitt (2001). There is one item from Colquitt’s scale that was not used because the item did not fit the context of the current study. Like procedural justice, slight modifications of the interpersonal justice items were required to fit the present study. Cronbach’s alpha, averaged across the 668 MCNALL AND ROCH four types of monitoring, was .86. A sample item is “Given the �type of monitoring�, I think my supervisor will be able to treat me with respect.” Privacy. Invasion of privacy was measured using a 10-item scale derived from Alge (2001). There are three items from Alge’s scale that were not used because they did not fit the context of the present study. Cronbach’s alpha, averaged across the monitoring conditions, was .89. A sample item is “I feel like the manner in which I will be evaluated is an invasion of my privacy.” Demographics. There are eight items that assessed various demographic variables. Sample items are age, ethnicity, gender, major, and work experience. Experimental Scenarios In each of four scenarios, a different type of monitoring was presented. In the direct observation condition, participants read “At Organization D, you are told that your supervisor will monitor your performance by observing you at work.” The three other conditions included one type of electronic monitoring system in addition to direct observation: computer monitoring, eavesdropping, or surveillance. Participants read the following description of the computer monitoring condition: At Organization C, a computer monitoring device monitors your performance. Using a keystroke accounting system, your supervisor will determine your work speed, work completed, and error rate throughout the workday. Your supervisor also monitors your performance by observing you at work. Participants read the following description of the eavesdropping condition: At Organization E, an eavesdropping device monitors your performance. Using a telephone call observation system, your supervisor will listen in on your conversations throughout the workday. Your supervisor also monitors your performance by observing you at work. Finally, participants read the following description of the surveillance condition read: At Organization S, a surveillance device monitors your perfor- mance. Using video camera observation, your supervisor will ELECTRONIC PERFORMANCE MONITORING 669 determine your movement throughout the workday. Your supervisor also monitors your performance by observing you at work. Design and Procedure Participants arrived at the experiment and were randomly given a packet containing a coversheet, the four monitoring scenarios, and a demographics survey. Thus, the study used a within-subjects design in which all participants read through the four hypothetical scenarios, but each of the scenarios was counterbalanced to control for potential order effects. The experimenter read aloud the verbal instructions and the coversheet that asked participants to imagine that they are looking for a job as a reservation agent. The position was described in terms of main job responsibilities and duties as defined by O*NET. Participants were told that they had been offered jobs at four organizations, and a major difference between the organizations was the techniques used to gather information about the worker’s performance. Finally, participants read through each scenario and answered the questions that followed each hypothetical organization. Participants worked through the packets at their own pace. The experiment lasted approximately 40 min. Results Data were analyzed for 246 of the 248 participants. Data were discarded for 2 participants because they failed to identify the order of their scenarios. We first conducted a confirmatory factor analysis to examine the distinctive- ness of procedural justice, interpersonal justice, and privacy. We used AMOS software (Arbuckle & Wothke, 1999) to examine the fit of the model, which included procedural justice, interpersonal justice, and privacy as separate constructs. The average chi square was 253.93 ( p = .00). Although the chi-square value suggests an inadequate fit, Byrne (2001) noted that the chi-square indices provide limited guidance in determining the extent of model fit. Other goodness of fit indices suggest that the model would fit approxi- mately well in the population. The average root mean square error of approximation (RMSEA) value was .08, which is close to the recommended criterion of .05 or less. The mean comparative fit index (CFI) and the mean Tucker–Lewis index (TLI) were .92 and .90, respectively, which reaches or exceeds the recommended criterion of .90. The mean goodness-of-fit index (GFI) and mean adjusted goodness-of-fit index (AGFI) values were .88 and 670 MCNALL AND ROCH .84, respectively, approaching the recommended cutoff of .90. Thus, our procedural justice, interpersonal justice, and privacy measures appear to be representing three distinct constructs. Table 3 presents means, standard deviations, and intercorrelations of the dependent variables. Procedural Justice Hypothesis 1 predicted that the EPMCS types would result in varying procedural justice perceptions. The results of a one-way repeated-measures ANOVA with procedural justice as the dependent variable reveal a signifi- cant main effect for EPMCS type, F(3, 732) = 3.34, p < .05, h2 = .01. It should be noted that the order of the monitoring scenarios served as a covariate to control for any effects as a result of the sequence in which participants read about each of the EPMCS types. Subsequent pairwise comparisons applying Bonferroni’s correction reveal that computer monitoring was perceived as significantly more just than the Table 3 Descriptive Statistics for Dependent Variables M SD 1 2 1. Procedural justice 3.16 0.52 — 2. Interpersonal justice 2.99 0.59 .40* — 3. Privacy 3.30 0.48 -.26* -.32* *p < .01. Table 4 Descriptive Statistics for Procedural Justice by Monitoring Type Procedural justice M SD 1 2 3 1. Direct observation 3.07 0.70 — 2. Surveillance 3.17 0.80 .27* — 3. Computer monitoring 3.37 0.81 .19* .41* — 4. Eavesdropping 3.01 0.79 .20* .33* .27* *p < .01. ELECTRONIC PERFORMANCE MONITORING 671 other monitoring types. In addition, surveillance was viewed as significantly more just than eavesdropping, but not significantly more just than direct observation. However, eavesdropping and direct observation were not per- ceived as significantly different from one another. An examination of the mean differences shows that participants viewed computer monitoring (M = 3.37, SD = 0.81) as more procedurally just than surveillance (M = 3.17, SD = 0.80), direct observation (M = 3.07, SD = 0.70), and eavesdropping (M = 3.01, SD = 0.79). Thus, Hypothesis 1 was partially supported in that computer monitoring was viewed as the most procedurally just. Contrary to the hypothesis, however, surveillance was not perceived as the least procedurally just. Eaves- dropping was perceived as the least procedurally just, but was not signifi- cantly different from direct observation. In turn, direct observation was not significantly different from surveillance. Interpersonal Justice Hypothesis 2 predicted that EPMCS types would result in differing per- ceptions of interpersonal justice. A one-way repeated-measures ANOVA with scenario order as a covariate reveals a significant main effect, F(3, 705) = 12.01, p < .01, h2 = .05, after applying the Greenhouse–Geisser correc- tion since Mauchly’s test was significant ( p < .05). It appears that the differ- ent types of EPMCSs led to varying perceptions of interpersonal justice. Means, standard deviations, and correlations are presented in Table 5. Pairwise comparisons using Bonferroni’s correction show that although computer monitoring was viewed as significantly different from the other monitoring types, it was not viewed as the most interpersonally just. Also, surveillance was perceived as significantly less just than direct observation, Table 5 Descriptive Statistics for Interpersonal Justice by Monitoring Type Interpersonal justice M SD 1 2 3 1. Direct observation 3.39 0.74 — 2. Surveillance 2.78 0.85 .27* — 3. Computer monitoring 3.10 0.79 .41* .36* — 4. Eavesdropping 2.67 0.92 .37* .39* .33* *p < .01. 672 MCNALL AND ROCH but not significantly different from eavesdropping. A review of the mean differences illustrates that direct observation (M = 3.39, SD = 0.74) was per- ceived as the most interpersonally just, followed by computer monitoring (M = 3.10, SD = 0.79), surveillance, (M = 2.78, SD = 0.85), and eavesdrop- ping (M = 2.67, SD = 0.92). Therefore, Hypothesis 2 was supported only partially. There were significant differences between the EPMCS types, but contrary to expectations, direct observation was perceived as significantly more interpersonally just than were the other EPMCS types. Surveillance and eavesdropping were perceived as the least interpersonally just, signifi- cantly less just than direct observation and computer monitoring. Privacy Hypothesis 3 predicted differences among EPMCS types in terms of perceptions of privacy. A one-way repeated-measures ANOVA with scenario order as a covariate reveals a significant main effect, F(3, 732) = 14.05, p < .01, h2 = .05. Table 6 presents the means, standard deviations, and correlations. Finally, pairwise comparisons applying Bonferroni’s correction indicate that computer monitoring was viewed as significantly different from the other EPMCS types, but not as the least invasive. Additionally, surveillance was viewed as significantly more invasive than direct observation, but not significantly different from eavesdropping. An evaluation of mean differ- ences demonstrates that direct observation (M = 2.75, SD = 0.68) was per- ceived as the least invasive in terms of privacy, followed by computer monitoring (M = 3.00, SD = 0.75), surveillance (M = 3.66, SD = 0.80), and eavesdropping (M = 3.80, SD = 0.80). Once again, Hypothesis 3 was only partially supported. Table 6 Descriptive Statistics for Privacy by Monitoring Type Privacy M SD 1 2 3 1. Direct observation 2.75 0.68 — 2. Surveillance 3.66 0.80 .21* — 3. Computer monitoring 3.00 0.75 .25* .17* — 4. Eavesdropping 3.80 0.80 .21* .25* .22* *p < .01. ELECTRONIC PERFORMANCE MONITORING 673 Even though, as predicted, there were significant differences between EPMCS types, direct observation (not computer monitoring) was viewed as the least invasive, and was significantly different from all other EPMCS types. Surveillance and eavesdropping were both seen as the most invasive; significantly more so than direct observation and computer monitoring. Mediator Analysis Hypothesis 4 predicted that privacy would mediate the relationship between EPMCS type and procedural justice. Following the recommenda- tions set forth by Baron and Kenny (1986), three conditions were examined to test for mediation. The first condition stated that EPMCS type should affect privacy, and this was supported, F(3, 732) = 14.05, p < .01, h2 = .05. The second condition stated that EPMCS type should affect procedural justice, and this was found also, F(3, 732) = 3.34, p < .05, h2 = .01. Finally, privacy was entered as a covariate in a one-way repeated-measures ANOVA with EPMCS type as the independent variable and perceptions of procedural justice as the dependent variable. In this case, the effect of EPMCS type was no longer significant, F(3, 239) = 1.34, p > .05. Unfortunately, given the constraints of the repeated-measures analyses, we were not able to determine the significance of privacy as the covariate. We can only determine that EPMCS type is no longer a significant predictor of procedural justice once privacy is entered into the equation. We do, however, know that overall privacy perceptions are significantly correlated with pro- cedural justice perceptions (r = -.26, p < .01). Thus, it is highly likely that privacy mediates the relationship between EPMCS type and procedural justice using the steps outlined by Baron and Kenny (1986), and the reported analyses lend support for the mediating effect of invasion of privacy, even though they cannot determine conclusively whether this is the case. Ancillary Data Prior experience with monitoring. Subsequent analyses were conducted to determine whether respondents who had personally experienced electronic monitoring responded differently to the justice and privacy items than did those who did not have experience with being monitored. Repeated-measures ANOVAs with experience as an independent variable and EPMCS type as the repeated measure reveal no significant main effects or interactions for experience in determining procedural justice, interpersonal justice, or inva- sion of privacy. Therefore, it appears that whether a person had personally experienced electronic monitoring did not influence the results. 674 MCNALL AND ROCH Scenario believability. Two items assessed participants’ perceptions of the believability of the scenarios and were rated on a 5-point scale ranging from 1 (strongly disagree) to 5 (strongly agree). When asked if participants had a hard time imagining themselves looking for a job as a reservation agent, most disagreed (M = 2.66, SD = 1.10). Participants also believed that the super- visors at each of the four organizations would base their performance ratings on the procedures that were explained in each of the scenarios (M = 3.53, SD = 0.96). Discussion Advances in information technology have increased the number of ways that organizations can monitor employee performance. Empirical research, however, has neglected to take into account the notion that various types of EPMCSs may impact fairness and privacy differently. The current study clearly indicates that differences exist between EPMCS types and perceptions of procedural justice, interpersonal justice, and privacy. This adds to our understanding of how EPMCSs influence employee attitudes. As predicted, computer monitoring was viewed as the most procedurally just type of monitoring. This result was expected, given that computer moni- toring systems, defined as keystroke recording, collect exclusively job-related activities. Surprisingly, eavesdropping was viewed as the least procedurally just, but not significantly less just than direct observation, which in turn was not significantly different from surveillance. Thus, participants did not dis- criminate between the procedures used to evaluate performance in the eaves- dropping and direct observation conditions, nor the direct observation and surveillance conditions. One possible explanation for these findings is that people perceive a violation of procedural justice any time a monitoring system has the potential to gather non-work-related information, and all three types have the poten- tial to do just that. Drawing from Bies and Moag’s (1986) agent-system model, it may be that procedural justice perceptions tend to be associated with the system, rather than the agent; thus, computer monitoring is viewed as the most just because it ensures that only job-relevant information is collected, indicating a fair system. Another plausible explanation for the lack of distinction among EPMCS types might be the measure of procedural justice, which had a low alpha level, even though the items were based on Colquitt (2001). On the other hand, the relationship between EPMCS type and interper- sonal justice was quite different than that of procedural justice. Contrary to expectations, participants perceived direct observation to be the most inter- ELECTRONIC PERFORMANCE MONITORING 675 personally just form of monitoring, significantly more so than any EPMCS type. It seems that most people tend to favor traditional means of evaluating performance in terms of interpersonal justice. According to Bies and Moag’s (1986) agent-system model, interactional justice, which subsumes interper- sonal justice, emphasizes the agent, often the supervisor. It may be that what is important for interpersonal justice is not only that job-relevant information is collected, but a general feeling of being treated with dignity and respect, which are critical components of interpersonal justice (Colquitt, 2001). According to Tyler and Degoey (1996), trust is linked strongly with being treated with dignity and respect by an authority. When a supervisor relies on traditional monitoring, this may convey a sense of trust and dignity, whereas any type of electronic monitoring may imply some degree of distrust. Thus, as far as interpersonal justice is concerned, it may not just be the type of tasks monitored, but also the scope of monitoring that influences perceived justice. For example, Strickland (1958) found that extensive surveillance of subordi- nate performance erodes trust. In Strickland’s study, high levels of monitor- ing led supervisors to believe that subordinates were less trustworthy. It may not only be supervisor perceptions that are influenced by the amount of monitoring, but also subordinate perceptions. Any type of electronic moni- toring deemed extensive by subordinates may indicate a lack of trust and dignity. Interestingly, participants perceived eavesdropping as the least interper- sonally just, but eavesdropping was not significantly different from surveil- lance. One explanation may be that people feel disrespected by these forms of monitoring because they perceive the eavesdropping and surveillance systems as gathering information that potentially is unrelated to their jobs. This also would illustrate why computer monitoring is perceived as more interperson- ally just than other EPMCS types since this device gathers only job-related information, even though the results regarding interpersonal justice indicate that any type of electronic monitoring is too much monitoring. A similar pattern of results was found for invasion of privacy. Participants perceived less of an invasion of privacy when their supervisors did not use any form of electronic technology to monitor their activities. It could be that participants believed that any type of monitoring technology creates a loss of perceived control, which in turn increased perceptions of invasion of privacy (Eddy et al., 1999). Eavesdropping was perceived as the greatest threat to privacy, but was not significantly different from surveillance. Participants may not have distinguished between eavesdropping and surveillance because both EPMCS types have the potential to capture non-work-related activities, thereby leading to a sense of uncontrollability and invasion of privacy. This study also answers Alge’s (2001) call to investigate invasion of privacy as a mediator. The data show that it is highly likely that privacy 676 MCNALL AND ROCH mediated the effect of EPMCS type on procedural justice. EPMCS type no longer predicted procedural justice when privacy perceptions also were con- sidered. This is expected, given that Alge found that invasion of privacy fully mediated the relationship between relevance and procedural justice. It would follow that EPMCS types should have a differential effect on procedural justice via privacy because EPMCS types differ on whether relevant infor- mation is collected. In other words, EPMCS type may be a proxy for the relevance of information. Different types of EPMCSs represent different levels of relevance, which in turn influence privacy perceptions, and these privacy perceptions directly influence procedural justice perceptions. The mediation findings are plausible, given the results of the statistical analysis coupled with the theoretical rationale suggesting that invasion of privacy is a precursor to procedural justice. More research is needed to determine if this is indeed the case, and to understand why EPMCS types influence privacy and fairness perceptions. Future research also should examine the perceptions of other forms of electronic technologies. In particular, it would be appropriate to investigate e-mail and Internet monitoring because the American Management Associa- tion and the ePolicy Institute (2005) survey found that 76% of organizations monitor workers’ Web site connections, and 55% store and review e-mail messages. In fact, a recent survey of 192 companies found that 92% of managers check employees’ e-mail and Internet use at work (“E-mail and Web monitoring,” 2003). The current study, however, focused solely on the categories put forth by Ambrose et al. (1998). It is possible that e-mail and Internet monitoring share similarities to Ambrose et al.’s (1998) eavesdropping category. That is, monitoring of e-mail activity probably will capture work-related activities, but also has the ability to collect non-work-related activities. Similarly, an employee may use the Internet to research a topic for a work-related presentation, but he or she could also do personal shopping online. Future research should look at whether e-mail and Internet monitoring share similarities with eavesdrop- ping, or if they have unique qualities that merit further classification. Overall, however, the present study has several important practical impli- cations for managers designing and implementing EPMCSs in organizations. First, it would be wise for organizational decision makers to investigate the various monitoring techniques, given that this study found differing levels of justice and privacy perceptions, depending on EPMCS type. Second, the current study suggests that surveillance and eavesdropping probably should not be utilized because of threats to procedural justice, interpersonal justice, and privacy. It may be possible, however, to implement a computer moni- toring system without reducing employee perceptions of justice. The current study found that such a device actually results in higher levels of procedural ELECTRONIC PERFORMANCE MONITORING 677 justice than does direct observation alone. In addition, computer monitoring was perceived as the most interpersonally just and the least invasive in terms of privacy of the three electronic monitoring types. Organizations must be cautious, however, when designing and implementing such a system because most people still prefer direct observation to electronic monitoring in terms of interpersonal justice and privacy. If organizational decision makers decide to put a computer monitoring system in place, there should be a process to reduce potential decrements in interpersonal justice and privacy. One way to enhance perceptions of inter- personal justice may be to provide training to supervisors on how to treat employees with respect and dignity while utilizing the data collected from the computer monitoring system. At the same time, the organization also must work toward decreasing the invasion of privacy that people experience as a result of computer monitoring. It may be useful to give employees the ability to turn off the monitoring system in order to enhance their perceptions of control and to help alleviate some of the stress that results from large amounts of monitoring. The results of the current study also have important theoretical implica- tions. First, researchers should not consider all EPMCS types as one and the same. Rather, it is critical for researchers to acknowledge that important differences exist between EPMCS types that otherwise go unnoticed when they use the same label to describe all types of EPMCSs. Second, it may be more useful to categorize EPMCS types based on whether the device has the potential to gather non-work-related information. Contrary to Ambrose et al.’s (1998) assertion that three categories exist (i.e., computer monitoring, eavesdropping, and surveillance), the results of the current study indicate that it may be more useful to place EPMCSs on a continuum according to the degree that relevant activities are captured by the system. Third, the results of this study clearly support Colquitt’s (2001) assertion that organizational justice is best conceptualized as multidimensional. In particular, EPMCS types exerted differential effects on procedural and interpersonal justice. Future research should continue to examine the justice dimensions as distinct constructs in order to uncover important differences that may exist. Finally, the results of the present study lend support for the conceptual link between privacy and procedural justice. Future research should continue to explore the mediating role of invasion of privacy and the implications of privacy as a procedural justice issue (Bies, 1993). It is important to note that the present study has several limitations. First, a scenario study has several drawbacks in comparison to simulations or field studies. Reading scenarios about electronic monitoring, instead of actually experiencing the monitoring firsthand, is likely to reduce psychological realism. However, participants did not have difficulty imagining that they 678 MCNALL AND ROCH were looking for a job as a reservation agent. This may be because college students could relate to seeking out entry-level positions where monitoring may be more prevalent. In addition, the participants believed that the super- visor at each of the four organizations would base performance ratings on the procedures that were explained in each of the scenarios. Moreover, since significant differences were found between EPMCS types and procedural justice, interpersonal justice, and privacy, it is likely that these differences would be even more pronounced in a field setting in which an employee actually experiences monitoring on a daily basis. According to Eddy et al. (1999), the results of scenario studies tend to underestimate the impact of procedural variables in real-world contexts. Future research should attempt to bolster the present findings by investigating the relationship between EPMCS types and organizational justice and privacy using a simulation or a field setting. Another potential limitation of the present study is the use of a college student population. College students often have limited work experience. A large number of the college students used in this study, however, had work experience and familiarity with electronic monitoring. In fact, 46% of the sample had between 3 and 6 years of work experience; and 41% of partici- pants indicated that their employers had electronically monitored their work activities. In other words, many participants were aware of electronic moni- toring in their own workplaces, and the results show that whether the par- ticipants had experienced electronic monitoring personally did not influence their justice and privacy perceptions. Thus, even though the participants were drawn from a student sample, this sample closely represents the working population for the type of job represented in the scenarios; that is, an entry- level job with high probability of being monitored. In conclusion, the purpose of the present study was to investigate the effect of EPMCS type on procedural justice, interpersonal justice, and privacy. The results indicate that differences exist between various kinds of EPMCSs and perceptions of procedural justice, interpersonal justice, and privacy. It appears that if organizations decide to monitor their employees electronically, computer monitoring is a viable option. However, the organi- zation must take steps to bolster perceptions of interpersonal justice and privacy in order to make such a system successful. References Alder, S., & Tompkins, P. (1997). Electronic performance monitoring: An organizational justice and concertive control perspective. Management Communication Quarterly, 10, 259–288. ELECTRONIC PERFORMANCE MONITORING 679 Alge, B. (2001). Effects of computer surveillance on perceptions of privacy and procedural justice. Journal of Applied Psychology, 86, 797–804. Ambrose, M. L., & Alder, G. S. (2000). Designing, implementing, and uti- lizing computerized performance monitoring: Enhancing organizational justice. Research in Personnel and Human Resources Management, 18, 187–219. Ambrose, M., Alder, S., & Noel, T. (1998). Electronic performance moni- toring: A consideration of rights. In M. Schminke (Ed.), Managerial ethics: Moral management of people and process (pp. 61–79). Mahwah, NJ: Lawrence Erlbaum. American Management Association. (2001). Workplace monitoring and sur- veillance. Retrieved May 22, 2002, from www.amanet.org/research/pdfs/ ems_short2001.pdf American Management Association & The ePolicy Institute. (2005). 2005 Electronic monitoring & surveillance survey. Retrieved December 27, 2006, from www.amanet.org/research/pdfs/EMS_summary05.pdf Arbuckle, J. L., & Wothke, W. (1999). AMOS users’ guide (Version 4.0). Chicago, IL: Small Waters. Baron, R. M., & Kenny, D. A. (1986). The moderator–mediator variable distinction in social psychological research: Conceptual, strategic, and statistical considerations. Journal of Applied Psychology, 51, 1173–1182. Bies, R. J. (1993). Privacy and procedural justice in organizations. Social Justice Research, 6, 69–86. Bies, R. J. (2001). Interactional (in)justice: The sacred and the profane. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 89–119). Stanford, CA: Stanford University Press. Bies, R. J., & Moag, J. F. (1986). Interactional justice: Communication criteria of fairness. In R. J. Lewicki, B. H. Shepard, & M. H. Bazerman (Eds.), Research on negotiations in organizations (Vol. 1, pp. 43–55). Greenwich, CT: JAI Press. Bylinksy, G. (1991, November 4). How companies spy on employees. Fortune, pp. 131–140. Byrne, B. M. (2001). Structural equation modeling with AMOS. Mahwah, NJ: Lawrence Erlbaum. Carayon, P. (1993). Effects of electronic performance monitoring on job design and worker stress: Review of the literature and conceptual model. Human Factors, 35, 385–395. Colquitt, J. (2001). On the dimensionality of organizational justice: A con- struct validation of a measure. Journal of Applied Psychology, 86, 386–400. Colquitt, J., Conlon, D., Wesson, M., Porter, C., & Ng, K. (2001). Justice at the millennium: A meta-analytic review of the 25 years of organizational justice research. Journal of Applied Psychology, 86, 425–445. 680 MCNALL AND ROCH Eddy, E., Stone, D., & Romero-Stone, E. (1999). The effects of information management policies on reactions to human resource information systems: An integration of privacy and procedural justice perspectives. Personnel Psychology, 52, 335–358. E-mail and web monitoring are now a way of life on the job. (2003, Decem- ber). HR Focus, 80, 8. Fenner, D. B., Lerch, F. J., & Kulik, C. T. (1993). The impact of computer- ized performance monitoring and prior knowledge on performance evalu- ation. Journal of Applied Social Psychology, 23, 573–601. Grant, R. A., & Higgins, C. A. (1989, Spring). Monitoring service workers via computer: The effect on employees, productivity, and service. National Productivity Review, 101–112. Greenberg, J. (1987). Reactions to procedural injustice in payment distribu- tions: Do the means justify the ends? Journal of Applied Psychology, 72, 55–61. Greenberg, J. (1990). Organizational justice: Yesterday, today, and tomor- row. Journal of Management, 16, 399–432. Griffith, T., Northcraft, G., & Fuller, M. (1998). Software and hard choices: Ethical considerations in the facilitation of a sociotechnical system. In M. Schminke (Ed.), Managerial ethics: Moral management of people and process (pp. 177–193). Mahwah, NJ: Lawrence Erlbaum. Hawk, S. R. (1994). The effects of computerized performance monitoring: An ethical perspective. Journal of Business Ethics, 13, 949–957. Kidwell, R., & Bennett, N. (1994a). Electronic surveillance as employee control: A procedural justice interpretation. Journal of High Technology Management Research, 5, 39–57. Kidwell, R., & Bennett, N. (1994b). Employee reactions to electronic control systems: The role of procedural justice. Group and Organization Manage- ment, 19, 203–218. Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationships. In K. Gergen, M. Greenberg, & R. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27–88). New York: Plenum. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum. McLaughlin, M. (1989, October). An attempt to tether the electronic work place. New England Business, 13–16. Nebeker, D. M., & Tatum, C. B. (1993). The effects of computer monitoring, standards, and rewards on work performance, job satisfaction, and stress. Journal of Applied Social Psychology, 23, 508–536. Nussbaum, K., & duRivage, V. (1986, Winter). Computer monitoring: Mis- management by remote control. Business and Society Review, 16–20. ELECTRONIC PERFORMANCE MONITORING 681 O*NET. (2002). Retrieved August 22, 2002, from http://online. onetcenter.org/search Racicot, B. M., & Williams, K. J. (1993). Perceived fairness of drug testing programs: Procedures for current employees. Journal of Applied Social Psychology, 23, 1879–1891. Smith, M., Carayon, P., Sanders, K., Lim, S-Y., & LeGrande, D. (1992). Employee stress and health complaints in jobs with and without electronic performance monitoring. Applied Ergonomics, 23, 17–27. Stanton, J. (2000). Traditional and electronic monitoring from an organiza- tional justice perspective. Journal of Business and Psychology, 15, 129– 146. Stone, D. L., & Bowden, C. (1989). Effects of job applicant drug testing practices on reactions to drug testing. InIn F. Hoy (Ed.), Academy of Management best paper proceedings (pp. 290–294). Atlanta, GA: Academy of Management. Stone, E., & Stone, D. (1990). Privacy in organizations: Theoretical issues, research findings, and protection mechanisms. Research in Personnel and Human Resources Management, 8, 349–411. Strickland, L. H. (1958). Surveillance and trust. Journal of Personality, 26, 200–215. Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hillsdale, NJ: Lawrence Erlbaum. Tolchinsky, P., McCuddy, M., Adams, J., Ganster, D., Woodman, R., & Fromkin, H. (1981). Employee perceptions of invasion of privacy: A field simulation experiment. Journal of Applied Psychology, 66, 308–313. Tyler, T. R., & Degoey, P. (1996). Trust in organizational authorities: The influence of motive attributions on willingness to accept decisions. In R. M. Kramer & T. R. Tyler (Eds.), Trust in organizations: Frontiers of theory and research (pp. 331–356). Thousand Oaks, CA: Sage. U.S. Office of Technology Assessment. (1987). The electronic supervisor (Pub. No. OTA-CIT-333). Washington, DC: U.S. Government Printing Office. Woodman, R. W., Ganster, D. C., Adams, J., McCuddy, M. C., Tolchinsky, P. D., & Fromkin, H. (1982). A survey of employee perceptions of infor- mation privacy in organizations. Academy of Management Journal, 25, 647–663. 682 MCNALL AND ROCH 
work_qxmagbcei5hw7diayrwlhvk2mu	----	c h a p t e r 1 3 ................................................................................................................................................... R E PA R AT I O N S , I N T E R N AT I O N A L L AW, A N D G L O B A L J U S T I C E : A N E W F R O N T I E R ................................................................................................................................................... r i c h a r d f a l k 1 . P o i n t s o f D e p a r t u r e ......................................................................................................................................................................................... It is only in the last decade or so that international law has moved significantly in the direction of providing the means to pursue global justice, that is, in global arenas or by reference to global standards and procedures, on behalf of the individual and collective victims of severe injustices of the sort associated with oppressive governing regimes.1 Prior to that time this class of issues pertaining to global justice was treated as marginal, at best, to the endeavors of international law, although overseas economic interests of individuals from the North received periodic protection if encroached upon by governments in the South. But in the 1990s the combination of the end of the cold war, the rise to prominence of international human rights, trends away from authoritarianism and toward con- stitutional democracy, and the partial eclipse of sovereignty in a globalizing world gave unexpected attention to the many facets of global justice, hitherto mainly neglected, including steps designed to rectify the harm endured by individuals at the hands of dictatorial and abusive governments. At the forefront of these moves was the reinvigoration of efforts to impose accountability on individuals associated with the perpetration of crimes of state, highlighted by such high-profile cases as those associated with the transnational pursuit of Augusto Pinochet and of Slodoban Milosevic.2 This emphasis on accountability by leaders was reinforced by institutional and procedural innov- ations enabling indictment and prosecution. Of almost equal prominence was the temporarily increased acceptance of an international responsibility on the part of the organized international community to protect vulnerable populations facing catastrophic challenges, whether from an abusive government or from an inability to provide governing authority, giving rise to a series of humanitarian interventions as responses to chaos and oppression. This historical climate of concern reached its climax with the Kosovo War under NATO auspices in 1999, and has subsequently declined markedly. Here, the duty to protect an oppressed and endangered Kosovar Albanian majority in the province of Kosovo was assumed by a regional security alliance to validate military action against a sovereign state, in this instance Serbia, even without the benefit of a prior mandate from the United Nations Security Council. Such a use of force even if credibly undertaken for protective purposes was always controversial from the perspective of international law, and depends upon the presence of political factors that were selectively present in the 1990s to a greater degree than at any other historical moment, and have subsequently almost disappeared.3 The inability to mobilize support for humanitarian intervention in the setting of ongoing, massive ethnic cleansing and genocidal tactics in western Sudan during mid-2004 is indicative of how restricted to context was the surge of humanitarian diplomacy in the 1990s. And even then, without the presence of more strategic objectives of the sort present in Kosovo, but absent in Rwanda during the genocide of 1994, the prospects for humanitarian intervention by either the UN or a coalition of the willing are minimal. As part of this climate of global opinion that seemed in the 1990s more sensitive to injustice than ever before, a new disposition to consider historic injustices endured by individuals and groups was evident in international relations. As Elazar Barkan, one of the more perceptive analysts of this welcome mutation in inter- national attitudes, notes, there was ‘the sudden appearance of restitution cases all over the world’, leading him to postulate the possible beginnings of ‘a potentially new international morality’.4 It is in this setting of a redress of historic grievances that the issue of reparations makes its appearance, especially in the setting of transitional justice arrangements, but not only. Part of this incipient normative revolution of the 1990s was a concern with rectifying harm previously done to individuals and groups, as well as punishing perpetrators and repudiating their documented wrongdoing in an authoritative forum. What accounted for this focus r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 479 on this redress agenda at such a historical moment is uncertain, but it undoubtedly reflected a loss of a guiding geopolitical purpose after the end of the cold war combined with the growing prominence of human rights and an impulse in leadership circles to overcome the chorus of criticisms directed at the amorality of neoliberal globalization. Barkan and others, for entirely persuasive reasons, approach these issues of restitution and reparations as primarily matters of morality and politics rather than law, that is, treating these humanitarian initiatives as reflecting the impact of moral and political pressures, rather than exhibiting adherence to previously established or newly emerging legal standards and procedures.5 The sea changes in the 1990s reflected almost exclusively a combination of special circumstances generating political pressures and a mysteriously supportive moral ‘window of opportunity’ in a global setting. But to the extent that morality and politics created new widely shared expectations about appropriate behavior by governments, international law was being generated, even if it did not assume in most instances the positivist formality of treaty arrangements or the specificity of a meaningful legal obligation that included measures designed to ensure consistent implemen- tation. Throughout the history of international society, the evolution of inter- national law has been closely related to prevailing political currents, evolving moral standards, and dominant trends in religious thought. Such a linkage has been particularly evident in the war/peace context, international law essentially em- bodying the just war tradition as evolved by theologians, but it is also true with respect to the recent prominence of a global justice agenda in which redress and restitution play such a large part. In one sense the role of international law has been generally one of codifying behavioral trends in state practice and shifting political attitudes on the part of governments with the intention of stabilizing and clarifying expectations about the future. It seems essential to distinguish three sets of circumstances: the first, the main preoccupation of international law and lawyers, involves disputes between states, and increasingly other actors, in which the complaining party seeks relief from alleged wrongs attributed to the defending party; the second involves war/peace settings in which the victorious side imposes obligations on the losing side, ‘victors’ justice, which may or may not correspond with justice as perceived from a more detached outlook; the third, achieving attention recently, involves transitions to democracy settings in which the prior governing authority is held accountable for alleged wrongs, and again reflect political outcomes of sustained struggle, but not international war. These three contexts should be kept distinct for both analytical and prescriptive purposes. In the first and second, there exists a more obvious role for international norms, procedures, and institutions than in the third, which is treated for most purposes as a matter of domestic discretion, although influenced by wider trends of national practice in comparable instances, and by wider global trends toward individual accountability for crimes against humanity. 480 r i c h a r d f a l k To what extent these mainly encouraging developments involving the rendering of global justice have been stymied, the window closed, by the September 11 attacks and the American-led response are matters of uncertainty and conjecture at the present.6 The refocusing of attention on global security issues seems to have remarginalized in general the pursuit of the global justice agenda, including the drive for reparations associated with various forms of historic redress other than those associated with transitional issues in a given country relating to the recent past.7 As developments in 2003 within Argentina suggest, a change of governmental leadership at the national level can affect the approach taken to justice claims in a transition process, including those involving a renewed resolve related to individ- ual criminal accountability and compensation for past abuse. Against this double background of an inchoate normative revolution in the 1990s and the altered historical setting of the early twenty-first century, this chapter analyzes the rele- vance of international law to reparations, and especially whether and to what extent reparations have acquired an international obligatory character of any practical significance.8 Such significance is difficult to assess, especially as its most tangible impact may be to encourage the provision by national legal systems of remedies for various categories of losses sustained due to prior abuses of human rights. To the extent that international law is relevant at all, it is to provide legal arguments or jurisprudential background useful for representatives and advocates of victims’ rights in domestic political arenas to the effect that victims are legally entitled to reparations, and that the domestic system is obliged to make this right tangible by providing meaningful procedures. 2 . I n t e r n a t i o n a l L a w : A u t h o r i t y a n d I n s t r u m e n t s ......................................................................................................................................................................................... The fundamental norms of international law are contained in customary inter- national law, and reflect widely accepted basic ideas about the nature of law, its relation to legal wrongs, and the duty to provide recompense. The Permanent Court of Justice, set up after World War I, gave the most authoritative renderings of this foundation for the legal obligation to provide reparations. This most general international law imperative was set forth most authoritatively, although without any equally general prospect of implementation, in the Chorzow Factory (Jurisdic- tion) Case: ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.’9 The Advisory r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 481 Opinion by the International Court of Justice involving the Israeli Security Wall reaffirmed this cardinal principle in ruling that Israel was under an obligation to provide reparations to the Palestinians for damages sustained due to the illegal wall built on their territory.10 A second equally important idea embodied in customary international law had to do with the nationality of claims associated with wrongs done to individuals. In essence, this norm expressed the prevailing understanding that only states were subjects within the international legal order, and that wrongs done to foreign individuals were in actuality inflicted upon their state of nationality. Accordingly, if the individual was stateless, a national of the wrongdoing state, or a national of a state unwilling to support the claim for reparations, there was no basis on which to proceed. This limiting notion was expressed succinctly by the Permanent Court of International Justice in the Mavrommatis Palestine Case: ‘[b]y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.’11 It is important to appreciate that these formulations were made before there existed any pretense of internationally protected human rights. A third important idea in customary international law, that has persisted, forbids a state to invoke national law as a legal defense in an international dispute involving allegations of wrongdoing by the injured state. Such a principle pertains to the setting of international disputes, which is where the main prece- dents and doctrines of international law relative to reparations are fashioned. Somewhat surprisingly, the International Law Commission (ILC) Articles on State Responsibility, despite years of work, clarified to some extent this earlier teaching, refining and codifying it conceptually more than changing it substan- tively.12 The ILC approach to remedial or corrective justice was based on distinguishing between restitution, compensation, and satisfaction. Restitution is defined in Article 35 as the effort ‘to re-establish the situation which existed before the wrongful act was committed’. Such a remedy is rather exceptional. It is usually illustrated by reference to the Temple case before the International Court of Justice (ICJ) in which Thailand was ordered to return religious relics taken from a Buddhist temple located in Cambodia.13 This primary reliance on restitution where practicable has been recently reaffirmed by the ICJ in its ruling on Israel’s security wall, an important restatement of international law although contained in an advisory opinion, because it was endorsed by fourteen of the fifteen judges. The language of the Advisory Opinion expresses this viewpoint with clarity in para- graph 153: ‘Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impos- sible, Israel has an obligation to compensate the persons in question for the damage 482 r i c h a r d f a l k suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction.’14 Article 35(a) and (b) of the ILC Draft Articles indicates that restitution is not the appropriate form of reparations in circumstances where it is ‘materially impossible’ or would ‘involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’. Compensation, resting on the fungibility of money, is more widely used to overcome the adverse consequences caused by illegal acts. In the Chorzow case it was declared that where restitution cannot be provided to the wronged state, then the wrongdoer should be required to compensate up to the level of the value attributed to whatever was lost, including loss of profits. Articles 36 and 37 go along with this approach of full reimbursement, without qualifications based on capacity to pay. Satisfaction is the third, and lesser known, manner of providing reparations. The ILC Articles make it a residual category in relation to restitution and compensa- tion. As explained by du Plessis, ‘[s]atisfaction provides reparation in particular for moral damage such as emotional injury, mental suffering, injury to reputation and similar damage suffered by nationals of the injured state’.15 Customary international law, as well as the ILC Draft Articles of State Respon- sibility, impose an undifferentiated burden, as stated in Article 37, on the wrong- doing state ‘to make full reparation for the injury caused by the internationally wrongful act’. As such, it gives very little guidance in specific situations where a variety of considerations may make the grant of full reparation undesirable for various reasons, although commentary by the ILC on each article does go well beyond the statement of the abstract rule. International treaty law does no more than to restate these very general legal ideas in a variety of instruments, and without the benefit of commentary attached to the ILC articles. Because property rights are of paramount concern, the language of reparation is not used, and the more common formulations emphasize com- pensation for the wrongs suffered. The basic direction of these treaty norms also derives from international customary law, especially legal doctrine associated with the confiscation of foreign-owned property. The legal formula for overcoming the legal wrong accepted in international law involved ‘prompt, adequate, and effective compensation’. Discussion of ‘restitution’ and ‘satisfaction’ is abandoned as the wrongdoing states are acknowledged by the United Nations to possess ‘permanent sovereignty’ over natural resources.16 The Universal Declaration of Human Rights shifts the locus of relief to national arenas and away from international disputes between sovereign states. Individuals are endowed with competence, and the notion of wrongdoing is generalized to encompass the entirety of human rights. Article 8 reads: ‘Everyone has the right r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 483 to an effective remedy by the competent national tribunals for acts violating the fundamental human rights granted him by the constitution or by the law.’ Of course, such a right tends to be unavailable where it is needed most, although the existence of the right does provide a legal foundation for reparation in future circumstances when political conditions have changed. Article 10 of the American Convention on Human Rights (1978) particularizes a ‘Right of Compensation’ in a limited and overly specific manner: ‘Every person has the right to be compensated in accordance with the law in the event that he has been sentenced by a final judgment through a miscarriage of justice.’ It seems to refer exclusively to improper behavior of the state associated with criminal pros- ecution and punishment within the judicial system. It is available only on the basis of an individual initiative. Article 14 of the Convention Against Torture and Other Cruel Inhuman and Other Degrading Treatment or Punishment (1984) imposes on parties the obliga- tion to ‘ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’. Again, the emphasis is on the legal duty of the state to provide individuals who are victims with a remedy within the domestic system of laws. That is, victims are not dependent on governments of their nationality pursuing claims on their behalf, nor are nationals barred from relief by the obstacle of sovereign immunity. Article 9 of the Inter-American Convention to Prevent and Punish Torture (1985) similarly obligates parties to ‘undertake to incorporate into their national laws regulations guaranteeing suitable compensation for victims of torture’.17 In the absence of case law it is difficult to know what this standard might mean in practice, and whether it is purely aspir- ational or represents a genuine effort to acknowledge the full spectrum of injury that often results from torture and severe abuse. Beyond this duty of the state, Article 8 allows persons alleging torture to internationalize their claims for relief ‘[a]fter all the domestic legal procedures of the respective State . . . have been exhausted’ by submitting their case ‘to the international fora whose competence has been recognized by that State’. Within the European regional system there is a right of an individual in Article 50 of the European Convention for the Protection of Human Rights and Funda- mental Freedoms (1950) to seek ‘just satisfaction’ in the event that national law provides ‘partial reparation’ due to injury sustained as a result of a violation of the Convention. A proceeding of this nature would fall within the authority of the European Court of Human Rights. Here, too, the idea is to provide individuals with a remedy at the regional level beyond what is available within the national legal system. These international law developments over the last half century have several different important consequences for the wider interest in reparations as provided 484 r i c h a r d f a l k to a victimized group, especially in the context of transition from authoritarian regimes: . first, there is the shift in the emphasis of international law from the protection of aliens abroad, and especially their property, to the protection of individuals who experience abuses of human rights; . second, there is a legal recognition that the state responsible for the abuse should legally empower those who claim to have been victimized to pursue relief by way of compensation through recourse to the national judicial system; . third, the national identity of the victim and the sovereign immunity of the state should not affect the availability of legal relief in the event of abuse; . fourth, in the event of frustration at the national level, then some further mechanism for providing relief is becoming available at either the regional or global level, or both. In summary, the importance of these international law developments is probably indirect, but the shift from a concern with dispute settlement to human rights does involve a major reorientation. The obligations embodied in legal instruments are vague and abstract, and are difficult and cumbersome to implement, but they do contribute to what might be called the formation of ‘a reparations ethos’ to the effect that individuals who have been wronged by applicable international human rights standards, especially in the setting of torture and kindred maltreat- ment, should be compensated as fully as possible. This ethos is a challenge to notions of sovereignty associated with earlier ideas that a state can do no wrong that is legally actionable, and that the wrong done to an individual is legally relevant only if understood as a wrong done to the state of which he or she is a national. At the same time, the most important circumstances of reparations, leaving aside postwar arrangements, are not really addressed directly by contemporary international law. In authoritarian political settings, by definition, there is an absence of judicial independence, and there is no prospect of relief even in extreme situations. In postauthoritarian political settings, where there is an impulse to achieve redress, the magnitude of the challenge requires some categorization of the victims as well as a recognition of severe limits on the capacity of the new government to provide anything approaching ‘adequate compensation’. In this sense, the contributions of international law at this stage must be mainly viewed as indirect, and the actual dynamics of reparations arrangements reflect a variety of specific circumstances that exist in particular states. These arrangements have an ad hoc character that makes it impossible to draw any firm conclusions about legal expectations, much less frame this practice in the form of legal doctrine. For this reason, among others, it is appropriate to view reparations as primarily an expres- sion of moral and political forces at work in particular contexts.18 r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 485 3 . S h a d o w s o f M i s u n d e r s t a n d i n g ......................................................................................................................................................................................... Any broad consideration of the relevance of international law to the subject matter of reparations needs to be sensitive to several background factors that could invite misunderstanding if not addressed. Such factors illuminate the tensions that have historically existed between considerations of global justice and political relation- ships shaped by hierarchical relations between the strong and the weak. For most people (other than specialists in international law concerned with international disputes about wrongdoing), the idea of ‘international reparations’ recalls the burdens imposed on Germany at the end of World War I that were embodied in the Versailles Treaty.19 These burdens were widely interpreted as accentuating the hardships faced by German society in the 1920s, and were viewed in retrospect as a damaging example of a ‘punitive peace’ that contributed to a surge of German ultranationalism, producing a political climate conducive to extremism of the sort represented by the Nazi movement. From an international law perspective, the reparations imposed were perfectly legal, indeed specified in a peace treaty formally accepted by Germany, but from a political perspective such reparations were viewed as imprudent, if not disastrous, and from a moral per- spective, they were widely viewed as ill-deserved, mainly exhibiting the vengeful appetite of the victors in the preceding war in which neither side could convin- cingly claim the moral high ground. This ‘lesson of Versailles’ was heeded after World War II, Germany being assisted in economic recovery and political normal- ization despite the existence of a far stronger case for collective punishment of German society than existed in 1918, given the multiple legacy of crime and tragedy generated by Hitler’s regime.20 And the results are generally viewed as vindicating the soft approach, reinforcing the repudiation of Versailles. And yet, somewhat surprisingly, the ‘peace’ imposed on Iraq after the Gulf War seems to have adopted the previously discredited Versailles model of punitive peace, although the terminology of reparations was largely displaced in this instance by the language of sanctions and claims, perhaps to avoid evoking bad memories. At the same time, extensive assets and oil revenues were made available, along with a procedure within the UN, to provide compensation to victims of Iraqi harm arising out of its invasion of Kuwait in 1990, and so there was a justice dimension so far as individual victims of Iraqi wrongdoing were concerned.21 Thus, overall, an important ambiguity emerges: the Iraqi people were punished collectively and severely despite being entrapped in a brutal dictatorship, while the various categories of victims arising from the international crimes of Iraq as committed in Kuwait were the recipient of substantial reparative efforts to com- pensate for losses sustained. In this respect, the positive side of reparations was present. This whole framework of ‘sanctions’, combining the punitive with the compensatory, was given legal stature in the form of unanimous UN Security 486 r i c h a r d f a l k Resolution 687, the harsh terms of which were accepted by a defeated and devas- tated Iraq in the 1991 ceasefire that ratified the results of the Gulf War.22 There are two observations to be made. First, in the sphere of interstate repar- ations, there is a confusing association of ‘reparations’ in language and policy both with a largely discredited process of imposing collective punishment upon a defeated state and its civilian population, and as seeking to give the victims of illegal and criminal conduct on behalf of a state a meaningful remedy for harm sustained in the form of substantial monetary compensation. Second, there is a flexible capacity for international law to provide a legal imprimatur, either by treaty or Security Council decision that ratifies a mechanism for the award of ‘reparations’, and gives legal expression to the geopolitical relationship that exists at the end of a war, without regard to whether the motivations for reparations are punitive or compensatory, or a mixture of the two. If the outcome of the war is ‘just’, and the victors are ‘prudent’, then the reparations imposed may contribute to global justice, but if not, not. International law provides at this point no substan- tive guidelines as to these assessments, and its main role is to provide victorious powers with a flexible instrument by which to give a peace process in accord with their goals and values an authoritative status. The analogous dynamics of establishing reparations in the context of transi- tional societies also reflects power variables, although there is often not a clear dividing line between victory and defeat, but rather a political process that pro- duces a negotiated compromise that inhibits to varying degrees the redress of past injustices by the newly emerging constitutional leadership. The arrangement is formalized exclusively through a reliance on mechanisms provided by the govern- ing authorities enlisting the national legal system and establishing special admin- istrative procedures. There is no direct role for international law, except to the extent of taking account of past wrongdoing as instances of ‘crimes against humanity’, or indirectly, as responsive to international pressures associated with imposing national means to determine accountability and rectifying past wrongs to the extent possible, given the political and economic realities. In the context of the Holocaust, and to some extent in relation to authoritarian antecedents to consti- tutional government, the goal of reparations is also a deterrent message to future leaders and a pledge of sorts by present leaders to repudiate the past and build a just constitutional order. Certainly, in the background of the sort of moral and political pressures effect- ively brought to bear on Swiss banks by Holocaust survivors and their representa- tives during the 1990s was the strong sense that these individuals, or in this case sometimes their descendants, had truly been victims of internationally criminal conduct and deserved some sort of redress even if belatedly.23 Decades had passed since the occasions of wrongdoing, and it was only a change in global setting that abruptly lent political credibility to claims that always had been actionable from legal or moral perspectives. It was this credibility that overcame the impulse to r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 487 disregard old claims as stale, and allegedly avoid opening old wounds. Such belated redress went against the traditional disposition of law to reach finality with respect to claims, both for the sake of stability and because evidence becomes less reliable and often unavailable with the passage of time. An additional source of misunderstanding pertaining to international law relates to its state-centric orientation and traditions, which have been increasingly chal- lenged in a variety of ways in the last few decades. The modern structure of international law was based on the idea that states were the only formal members of international society, and that the legal interests of individuals if associated with the actions of foreign governments were protected, if at all, by one’s country of nationality on a discretionary basis.24 International wrongs of aliens were thus treated as generating potential legal claims by a government on behalf of their aggrieved nationals, but purely as a matter of political and moral discretion, and under international law the wrong was done to the state, not to the individual who was harmed. The practice by states of reacting to such wrongs was described as ‘the diplomatic protection’ of nationals or aliens abroad, and was usually associated with the protection of foreign property rights. The individual beneficiary of such claims had no legal entitlement, and a government could ignore or waive the claims of its nationals. This statist pattern was further reinforced by ideas of nonaccount- ability with respect to wrongs inflicted on nations, both internationally and domestically. The doctrine of sovereign immunity meant that an individual suf- fering injury could not initiate any legal action in the courts of either the country where the harm took place or the country of his or her nationality. Claims of allegedly injured aliens in Third World settings were sometimes addressed by claims commissions assessing the merits of particular claims or by a lump sum settlement the funds of which were then allocated on some basis to the claimants. This background of international law is highly relevant to the circumstance of societies in the midst of transitions to democracy. There are three further obser- vations that are relevant to this inquiry. First, the political reality of such dynamics reflected the geopolitical and hierarchical structures of the colonial era. These claims made by governments in the North involved only losses sustained by Western individuals in Third World settings. There was no reciprocity or equality given the manner with which investment and property rights were dealt with in international law. A bit later these claims for compensation involved opposition to socialist approaches to both private investment and economic development, and resisted the legal effects, as far as possible, of the rise of economic nationalism in the decades following World War II. The protection of nationals abroad was not at all in the spirit of ‘reparations’ (conceived as corrective justice) and reflected an opposite policy generally associated with protecting foreign investors who had characteristically been beneficiaries of ‘unjust enrichment’ in a variety of exploit- ative center–periphery relations. Ideas of state responsibility were also formulated with an eye toward fashioning an international law instrument designed for the 488 r i c h a r d f a l k protection of transnational private property interests, especially in the face of allegedly confiscatory forms of nationalization. Even the most recent formulation of the law of state responsibility by the International Law Commission treats the state as the sole subject of wrongs whose victims are its nationals, and fails to address the existence of rights under international law of the victims if they are conceived of as individuals or groups. With moves toward neoliberal globalization since 1990, there has emerged a widespread intergovernmental consensus support- ive of private sector autonomy, which has ended the widespread emphasis on balancing territorial rights against those of foreign investors in Third World countries. In this regard, the capitalist ethos has prevailed, at least for the foresee- able future. Second, the kind of concerns that have been associated with transitions to democracy were completely absent from these earlier concerns of international law with harm sustained by individuals. For one thing, victims within society were left completely vulnerable to abuse by their own governments due to ideas of territorial supremacy of sovereign states, and thus the abuses of oppressive gov- ernment toward their own citizenries remained outside the legal loop of potential responsibility. International law was completely silent as to state–society abuses so long as the victims were nationals.25 The emergence of international human rights, by way of the Universal Declaration of Human Rights in 1948 and the 1966 Covenants were at first only politically feasible because there were no expectations of legal implementation, much less remedies for victims seeking reparations. The majority of governments were authoritarian, fully dedicated to traditional notions of sovereign rights, and would have opposed a legal structure that had explicit ambitions associated with implementation of individual rights. It is here where the emergence of transnational civil society actors changed the political equation, creating pressures to promote degrees of implementation for human rights that went far beyond what had been anticipated at intergovernmental levels.26 Third, since international law failed to protect the human rights of individuals as a matter of law until after World War II, there was little pressure on national legal procedures to do so. But in more than a half century since the adoption of the Universal Declaration of Human Rights there has been an extraordinary set of regional and global developments enhancing the position of the individual as the formal holder or subject of rights.27 What is important here is less the exceptional international initiative on behalf of the victims of human rights abuse, than the influence on the erosion of sovereign exemptions from accountability in domestic legal arenas.28 Here the indirect impact of the human rights movement has been strongly felt. It includes the empowerment of civil society actors, creating intense perceptions of injustices endured by individuals, expectations of some sort of remedial process, and the importance of taking official steps toward corrective justice by a government in the struggle to renew an atmosphere of political legitimacy. This is the case with respect to its own citizens by means of a signal r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 489 of the repudiation in the past and also to aid efforts to acquire or reacquire legitimacy within international society.29 In effect, some of the traditional veils of sovereignty are lifted to facilitate transition, but this is overwhelmingly disguised directly by the adoption of a self-interested national political and moral discourse. But what seems national, even nationalistic, is undoubtedly influenced by varying degrees by what has been going on internationally, transnationally, and in other kindred states. What is most evident, particularly in Latin America, which pro- vided the main experimental frontier, was the degree to which justice for victims was complementary to what often from the outside appeared to be a more strident insistence, effectively promoted by civil society actors, on combating what came to be described as ‘the culture of impunity’ toward past wrongdoing by leaders. More properly considered, this effort to impose accountability on leaders was integral to restoring the dignity of victims, constituting a direct repudiation of the past, and was thus an aspect of rendering justice to the victims, however retrospectively.30 There is also evidence of a mimetic element in which national dialogues listen to one another, while adapting to their own particularities, build- ing a trend that establishes a new pattern of expectations about justice in transi- tional circumstances. Such a drive for corrective justice was tempered by resource constraints and by the search for normalcy or social peace, tending to produce compromise approaches, especially encouraging an approach to feasible levels of ‘satisfaction’ for victims by reliance on truth and reconciliation processes adapted to the particularities of a given country. The end result is an acknowledgment of the past, but without great efforts either to punish perpetrators or to compensate victims. Symbolic forms of redress prevail, with both corrective and deterrent goals. Such a historical process of innovative practice is somewhat puzzling from an interpretative perspective. Whether we call such patterns ‘law’ or ‘international law’ is a matter of the jurisprudential outlook, either positivist or constructivist. It is also a question of what might be called the politics and epistemology of law. A positivist approach would not regard the existing rules of international law as sufficiently clarifying as to permissible behavior to qualify fully as law. A construct- ivist jurisprudence attributes to the interpreters of law, both judges and scholars, a dynamic role in imparting authoritative meaning, and proceeds from the belief that legal standards cannot be objectified by language and strict canons of inter- pretation. I favor such an acknowledgment of the uncertainty of law on the books as a means to encourage those with discretion to interpret, apply, and enforce the law to act responsibly, which I regard as meaning that ambiguities be resolved by opting for morally guided outcomes to decision-making. Of course, discretion is not unlimited, but confined by rules of reason that identify the boundaries of interpretative reasonableness and thus accord with the idea that those interpreting the law are not free to give expression to private ideas of morality and political prudence. Legality as a clarifying condition is left in abeyance until patterns of 490 r i c h a r d f a l k expectations are shaped by interpretative trends and practice.31 Such a prism of evaluation would seek to relate law to widely endorsed expectations about behavior that exist in society, but would not ‘legalize’ moral sentiments that lacked such backing, however appealing, by pretending that these sentiments qualified as ‘law’. From such a perspective, then, there is a greater relevance for international legal obligations in relation to reparations practice, and wider issues of corrective or remedial justice, than would seem to derive from a strictly positivist jurisprudence. The normative revolution that seemed to get underway in the 1990s had a law- making potential if expectations of legality are created by influential institutional and societal actors. Such expectations would acknowledge as valid specific claims and demands for justice, and thereby set precedents that shape perceptions as to the evolving character of ‘the law’. If victims’ rights become established legally, expectations of participants alter in circumstances of future victimization. 4 . S o m e L i m i t i n g C o n d i t i o n s ......................................................................................................................................................................................... Reparations, if conceived as central to corrective justice, pose difficulties from the perspective of international law, but these are encountered in analogous form in transitional justice settings. Even more than efforts to impose individual account- ability, a reliance on reparations, especially as a means to address the various dimensions of harm endured by victims, is inevitably to be context-driven.32 And because context is so decisive, the guidance functions of international law tend to be minimal beyond affirming the existence of an underlying obligation as a generality. As the 2004 Advisory Opinion on the legal status of the Israeli security wall clearly reaffirmed, there does exist in international law a well-established entitlement for the victim of legal wrongs to appropriate reparations. But between the affirmation of the legal right/duty and its satisfaction there exists a huge contextual gap. In this instance, Israel, backed by the US government, immediately repudiated the World Court decision, and the prospects of compliance are nil. The international legal standard is authoritative and context-free, but its implementa- tion is context-dependent. Several dimensions of this unavoidable contextuality can be identified, but such a reality also pertains at least as much to reparations within national settings, where a wide measure of prosecutorial discretion has been an attribute of efforts to bring justice to perpetrators and victims in transitional situations. So what is set forth as applicable in international contexts is also relevant with some adjustments to national contexts. r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 491 Unevenness of Material circumstances To the extent that reparations attempt to compensate victims for losses endured, some assessment of an ability to pay needs to be made. This assessment should take account, as well, of the extent of victimization, and whether certain forms of vicitimization need to be excluded from the reparations program. But in the end, the question of fiscal capabilities at the disposal of the perpetrators, or their successors, is crucial. Of course, this is true, as well, for prosecutorial efforts to impose accountability on perpetrators, which also reflects the unevenness of national capacities to sustain the ‘shock’ of prosecutions. Iraq after the Gulf War, with extensive oil revenues, and South Africa, with an impoverished population, are at opposite ends of the spectrum in two respects: Iraq was an instance of reparations doubling as sanctions, whereas in South Africa any attempt to provide monetary reparations would involve a massive diversion from the priorities of the new leadership to promote economic growth and address the challenge of massive poverty. The case of South Africa is significant for this inquiry.33 The new political order had repudiated its criminal past mainly by way of a truth and reconciliation process. It was deeply committed to the improvement of the material circumstan- ces of an extremely poor majority black population. Of course, the new leadership could have taken greater account of the high degree of victimization, as well as the unjust enrichment of the white minority, by combining constitutionalism with a program for the redistribution of wealth based on past injustice. To have done so, however, would likely have doomed the political miracle of a bloodless transition from apartheid, and might have led to prolonged civil strife. The role of reparations in transitions to democracy is especially complicated, taking into consideration the entrenched interests of those associated to varying degrees with the old order, seeking to avoid overtaxing available capabilities to ensure the success of the newly emerging order, and yet providing some needs-based relief to those who suffered incapacitating harms due to prior wrongdoing. As well, in the setting of many African countries that are extremely poor, it seems unrealistic because of resource constraints to impose corrective burdens of a monetary character.34 This is espe- cially so for national settings where prolonged civil strife has victimized many, if not all, living in the society; many severely, if massive atrocities were committed on a large scale. Normally more appropriate would be symbolic measures of acknow- ledgment (via truth and reconciliation) along with a needs-based conception of reparations that tries, at least, to enable those who have been disabled, or find themselves in acutely vulnerable circumstances, to be given the means by which to restore a modicum of dignity to their lives.35 492 r i c h a r d f a l k Remoteness in Time Because some claims for redress of grievances arise from events that seem in the remote past, and their redress is of a magnitude that would be disruptive to present social and economic arrangements, there is a vigorous resistance to material forms of compensation.36 It is partly a matter of responsibility, the unwillingness of most members of a present generation to believe that they owe obligations to the ancestors of claimants. It is partly a matter of changed mores, a sense that ‘injustice’ needs to be measured within the historical setting of the contested behavior. It is partly a matter of scale and impact, the realization that restoring the rights of victims would be enormously expensive and subversive of currently vested prop- erty interests. And it is partly a refusal to treat those in the present as truly vicitimized by occurrences that took place long ago. The reality is complicated, as old wounds often have not healed despite the passage of many generations. At the same time, remoteness has not altogether stymied efforts to obtain redress in the form of reparations under certain conditions. The exemplary case is the pursuit of Swiss bank deposits by Holocaust survivors and their heirs, as well as claims on behalf of those who had been compelled to do forced labor in Nazi times. Swiss banks agreed to pay survivors $1.25 billion, and the German government agreed to pay compensation for slave labor.37 Related efforts produced agreements with France to compensate for stolen assets during the Vichy period, ‘truth’ com- missions have been set up in as many as twenty-three countries that are continuing to assess claims relating to looted works of art and unpaid insurance proceeds owed to relatives of Holocaust victims. At the same time, beneficiaries are disappointed by the level of compensation received, and more than this, distressed by the monetiza- tion of their suffering that can never be compensated. When one survivor of Auschwitz, Roman Kent, was asked whether he was happy about the results, his reply was typical: ‘Why did it take the German nation 60 years to engage the morals of the most brutal form of death, death through work?’38 The pursuit of these claims on behalf of Holocaust victims has produced mixed assessments from observers, but the main relevant point is that the process has been primarily driven by moral and political pressures, with law playing a facilitative role, although lawyers have played a rather controversial role by siphoning off a considerable proportion of negotiated settlements as legal fees.39 In a technical sense, the recovery of wrongfully taken property is an instance of reparations, but in its more unusual mode of restitution rather than as a means of providing compensation for injuries sustained. In some respects, the relative success of Holocaust claimants has stimulated other categories of remote victims to be more assertive about seeking redress, although not necessarily in the form of reparations. To begin with, Asian victims of imperial Japan mounted pressures on behalf of survivors who had been engaged in forced labor, as did representatives of ‘comfort women’. Asian claimants were r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 493 able to take advantage of national laws in the USA that had been drafted in response to pressures associated with the Holocaust, although in the end were unable to proceed as potential claims had been waived in the peace treaty con- cluded with Japan, an exemption from responsibility that the US State Department continues to support in litigation brought before American courts. Note here that the obligations to compensate written into American law do not pretend to be ‘international legal obligations’, but are instances of discretionary national legisla- tion that results from moral appeals and political leverage. Yet remoteness has not inhibited certain categories of claims for reparative justice, especially those associated with indigenous peoples and the institutions of slavery and slave trading. These claims, building credibility in the wake of efforts on behalf of Holocaust survivors, gained unprecedented visibility in the atmos- phere of the 1990s.40 To the extent that symbolic reparations were pursued there were positive results in the form of acknowledgments, apologies, and media attentions to past injustices. Remoteness definitely limited the capacity of such claimants to implement the very broad legal imperative to give victims remedies for harms endured, but it did not formally preclude relief. There was no statute of limitations applicable to bar claims. Those with limited claims and a small constituency, most notably Japanese- Americans who had suffered enforced detention in World War II, were recipients of nominal compensation payments.41 These payments were important to the victims as much, if not more so, as acknowledgments of past injustice, that is, as symbolic reparations in the sense of acknowledgment and apology even though a nominal payment was involved. In contrast, descendants of slaves, although receiving some satisfaction, including a legal affirmation in authoritative global settings that slavery constituted a crime against humanity, have not been able to gain satisfac- tion in the form of compensation.42 Unlike the case of Japanese-Americans where compensation was not a huge financial tax on the present and unlike Holocaust survivors who had formal American pressures behind them (which appeared to push the Swiss banks and others into accommodating gestures), indigenous peoples and descendants of slaves found themselves without political leverage, despite generating significant moral pressures arising from the documentation of horrendous past atrocities. Beyond this, redress in these latter instances would have been economically and politically disruptive, imposing a major and politically unacceptable burden on present public revenue flows. Absence of Individuation The magnitude of the harm done, especially when directed at a large class of victims, makes it impractical to evaluate individual claims on a case-by-case 494 r i c h a r d f a l k basis in most instances, and therefore is not consistent with the international law approach based on the individual that is embedded in human rights.43 It has been historically possible under certain circumstances to create claims commissions to deal with efforts to achieve restitution of property and compensation arrange- ments, as was done in relation to the Iranian Revolution and the first Gulf War. In both instances, there were large pools of resources available that belonged to the accused governments, as well as antagonistic international attitudes toward the government that was being charged with improper taking of private property rights. And redress for claimants did not impose any burdens on the states that established the reparations mechanism, which distinguishes the situation from those where payment of reparations would be imposed from within. That is, the geopolitical climate was supportive of efforts to implement reparations on an individuated basis in Iran and Iraq. But these instances are the exception rather than the rule. No such redress occurs when the accused government is victorious or beyond the reach of the international community, as has been the case in relation to the USA, considering the wrongs associated with its conduct of wars in Vietnam, Panama, Afghanistan, and Iraq in the course of the last forty years, as well as in relation to both world wars of the twentieth century. More common are those many circumstances in a wide range of countries where an oppressive past has been finally repudiated by a new political leadership, but not necessarily in a conclusive fashion. Beyond this, there are neither the administrative nor financial capabilities to process claims on an individual basis, particularly if the abuses do not involve property rights that can be established by the claimants. In such circumstances, the dynamic of redress has tended to emphasize accountability for the main perpetrators of atrocities and a collective truth-telling procedure for the community of victims, especially reliance on truth and reconciliation commissions.44 Reparations are certainly not excluded, but they have not been consistently part of the process, and rarely reach the majority of victims except in pitifully small amounts. In Latin America several countries have implemented significant reparations programs, including Argentina, Chile, and Brazil, others have made efforts that are more than token. Reparations have received less attention than efforts at criminalizing the perpetrators of gross wrongs, but have been at least as significant an aspect of attempts at overall rectification. Generality of Obligation Any attempt to evolve a law-centered approach to reparations must accept the frequent inability to specify the level of responsibility with the kind of precision that makes it more likely that equal circumstances will be treated equally. Of r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 495 course, this difficulty with reparations should not be exaggerated, and it should be appreciated that the more demanding rules of evidence and standards of persua- sion that apply to criminal prosecution make problems of ascertaining responsi- bility and entitlement with respect to reparations somewhat manageable. The provision of reparations, however constructed, usually must depend in the end on a rule of reason, which accords those who administer the program, whether judicially or administratively, wide discretionary authority. Only where the idea of full compensation for losses is sustained, as in Kuwait after the Gulf War, is there operational guidance for those making decisions. Or where uniform payments are decreed, which overlook the unevenness of harm sustained, as with compensation accorded to Japanese-Americans detained during World War II, is specificity attained. In other settings, the legal mandate to award reparations operates in a manner similar to other areas of the law where the specific and the general are only loosely connected, as when such standards as ‘due process’ or ‘the reasonable person’ are used to judge legal responsibility in particular circumstances. Where the number of claimants is very large, there is a greater disposition to rely on administrative procedures that compensate victims by category of harm, and usually with no pretension that the level of reparations corresponds to the level of harm. Again, the human rights approach based on individual rights challenges this flexibility. Extreme Selectivity To the extent that reparation claims are given support in national legal systems, there are present critical geopolitical factors that inhibit any kind of standardiza- tion of treatment. It is one thing to initiate litigation to give some remedial relief to Holocaust victims, but it would be inconceivable that comparable relief, even of a symbolic character, were to be accorded to Indochinese victims of the Vietnam War or to Palestinian victims of Israeli abuses of international human rights and international humanitarian law during the period of extended occupation of the West Bank and Gaza. The victims require political leverage, and the target of remedial abuse must be discredited or defeated for such remedies to exist. When- ever geopolitical factors become relevant to the application of legal standards, the issue of legitimacy casts a shadow over discussions of legality, especially because selective implementation means that equals cannot be and are not treated as equals. Should such a realization be allowed to taint those applications of law that can be explained by reference to geopolitical patterns of influence?45 496 r i c h a r d f a l k 5 . W h a t I n t e r n a t i o n a l L a w C a n D o ......................................................................................................................................................................................... So far the emphasis has been placed on the limitations of international law in relation to the imposition of obligations to provide reparations to victims of past injustices and deprivations of rights, especially in the setting of transitions to democracy. But international law also has contributed to a generalized atmosphere of support, a reparations ethos, for compensating victims as part of its overall dedication to global justice and the enforcement of claims, and thus lends support to the domestic willingness to provide reparations when contextual factors are favorable. Beyond this, international law is part of the normative context, giving a higher level of credence to victims and their supporters who insist on reparations as part of a new political regime of ‘fairness’. Such a change in the climate of credibility with respect to claims of reparations for past wrongs is perhaps most evident in the greater seriousness accorded to the grievances associated with the descendants of slaves and the representatives of indigenous peoples. These claims had previously been hardly ever mentioned in influential settings, being treated as too frivolous to warrant attention, much less action. International law also helps by clarifying those forms of governmental abuse that constitute international crimes, and therefore cannot be shielded from legal ac- countability.46 Certainly, the establishment of the International Criminal Court (ICC) is a step in the direction of accountability for perpetrators, and by its provisions of funds for reparations of victims, there is an agreed-upon framework that should exert an indirect influence upon those transitions to democracy that occur against an established background of gross abuse and international crimin- ality. That is, by linking accountability for perpetrators to compensation for victims there is encoded in international law a conception of fairness and rectifi- cation of past harm that includes victims.47 This is a major conceptual step forward, with policy consequences, although disappointments also arise to the extent that compensatory steps are either trivial in relation to the quantum of harm endured or are never implemented beyond nominal awards.48 Perhaps the most important impact of this level of generalized obligation is to influence the approach of national legal systems, which in any event have the most opportunity to actualize international standards, including those associated with human rights, in relation to the persons who endured the wrongs or their representatives. To the extent that national programs of reparations are enacted, there are expectations generated that a transition to democracy is incomplete if it does not include efforts to address as well as possible, given contextual constraints, the harms endured by victims of a prior oppressive regime. At the same time, there exists a margin of appreciation that allows a given national government a wide range of discretion in determining what it is reasonable to appropriate for the satisfaction of past claimants. r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 497 To the extent corrective justice is taken into account, then the pressure to overcome the culture of impunity relating to transitions to democracy is of at least symbolic benefit to the victims, as well as to their families and friends. The difficulties of providing material compensation are offset to some extent by publicly and officially acknowledging past abuses, documenting the record of wrongdoing associated with a prior regime, discrediting perpetrators while ex- pressing solidarity with a community of victims, issuing apologies, and challenging self-serving grants of amnesty. In this process, not only is the harm to those most victimized repudiated as wrong, but the general public is educated about the limits on permissible behavior by governments. Given the degree to which transitions to democracy are carried on within national legal frameworks, where the contours of arrangements are determined exclusively by reference to domestic law, the role of international law is inherently limited. Of course, to the extent that international human rights and criminal law are internalized, they push the national approach, in circumstances of transitional justice, in the direction of providing ‘just compensation’ for victims as determined contextually. Beyond this, international law could impose obligations on states and other actors to provide financial capabilities via the ICC, and elsewhere, to enable those countries with limited resources and very widespread claims of victimization to receive special credits and loans for the purpose of satisfying certain categories of victimization. Whether such an undertaking could fit within the mandate of existing international financial institutions such as the World Bank or IMF is doubtful, but a special commission could be created within the UN system to receive voluntary contributions earmarked for such purposes. The record to date is not encouraging if the UN Voluntary Fund for Victims of Torture established by GA Res. 36/151 on December 16, 1981, is taken as indicative. The Fund receives contributions from governments, nongovernmental organiza- tions, and individuals, but has managed to raise only $54 million during its entire course since coming into existence in 1983. Another possibility, undoubtedly remote, would be to affix a ‘Tobin Tax’ on international currency transactions or on activities that pollute the commons, such as commercial jet international travel, thereby providing a pool of funds to be used to bolster the capabilities to realize the goals of corrective justice in transitional societies and other circumstan- ces where international victimization has occurred. This kind of mechanism could also be used to address categories of claimants on a group basis, thereby circumventing the extraordinary bureaucratic burdens associated with judicial and administrative approaches that are based on assessing the merits of individualized claims. 498 r i c h a r d f a l k N o t e s 1. For review of this dynamic see Falk, ‘Reviving the 1990s Trend toward Transnational Justice: Innovations and Institutions’, Journal of Human Development 3 (2) (2002): 169–97. 2. See Falk, ‘Assessing the Pinochet Legislation: Whither Universal Jurisdiction?’ and the reply by Pablo de Greiff, ‘Universal Jurisdiction and Transitions to Democracy’, in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, Stephen Macedo, ed. (Philadelphia, PA: University of Pennsylvania Press, 2004). 3. The conclusion of the Independent International Commission on Kosovo was that the action was ‘legitimate’ (as it prevented an imminent instance of ethnic cleansing), but ‘illegal’ (as it lacked a required UNSC mandate). See the report of the commission, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford Uni- versity Press, 2000); along similar lines, but with a more comprehensive approach, see the report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa, Canada: International Development Research Centre, 2001). 4. Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: Norton, 2000), ix. 5. In this collection, de Greiff defends a nuanced position with respect to the issue of the relationship between reparations and international law: the main point is that what international law has to say about this issue is still mostly geared to the case-by-case resolution of claims, and that both this and the (related) adoption of restitutio in integrum as the criterion of justice in reparations, make the guidance provided by international law less than clear when the task is to create a massive program. See de Greiff, ‘Justice and Reparations’ (Chapter 12, this volume). 6. For a consideration of this dynamic of distraction see Falk, The Great Terror War (Northampton, MA: Olive Branch Press, 2003); also, Falk, ‘Reviving Global Civil Society after September 11’, in Traditions, Values, and Humanitarian Action, Kevin M. Cahill, ed. (Fordham, NY: Fordham University Press, 2003), 344–67. 7. Even in the aftermath of the Afghanistan War and the Iraq War there does not seem to be a disposition to set up a procedure to provide reparations for the numerous victims of these brutal regimes. Unlike after World War II or the Gulf War, the main goals of the occupying powers, aside from selective criminal prosecution of the leaders of the former regime, seem to involve the establishment of stability and a sense of normalcy. 8. Of course, there are a series of affirmations of a legal obligation to compensate victims of abuses that can be found in such influential documents as Article 8 of the Universal Declaration of Human Rights, Articles 2(3), 9(5), 14 of the International Covenant on Civil and Political Rights, Article 14 of the UN Convention against Torture, and Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimin- ation, as well as the elaborate consideration of victims’ rights in the Statute of the International Criminal Court. See also Theo van Boven, ‘Basic Principles and Guide- lines’, E/CN.4/2000/62, January 18, 2000. It is to be noted that most of the assertions of this right to compensation situate the remedy within national legal systems. With the r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 499 9. exception of the ICC approach there is no attempt at an international remedial option made available to a victim even in the event that there is no meaningful national remedy. The Basic Principles document, in Principle 12, affirms the victim’s right to pursue a remedy in all legal arenas ‘under existing domestic laws as well as under international law’, but without any clarification as to how such rights can be upheld in concrete circumstances. States are obliged to ‘[m]ake available all appropriate diplo- matic and legal means to ensure that victims exercise their rights to a remedy and reparation for violations of international human rights or humanitarian law’. 9. Case concerning the Factory at Chorzow, 1927 P.C.I.J. (Ser. A) No. 9, at 29; in explaining the bearing of international law I have adapted the framework clearly set forth by Max du Plessis, ‘Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery’, Human Rights Quarterly 25 (2003): 624–59. 10. ‘On the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories’, ICJ Reports, July 9, 2004, para. 152. 11. Mavrommatis Palestine Concessions Case (Greece v. UK), 1924 P.C.I.J. Reports (Ser. A) No. 2, at 12; for fuller account see Ian Brownlie, Principles of Public International Law, 3rd edn. (New York: Oxford University Press, 1982). 12. For the definitive account of the ILC treatment of reparations see James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002); for useful assessment see Dinah Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibilities’, American Journal of International Law 96 (4) (2002): 833–56. Professor Shelton asserts that these draft articles, that is, not yet in the form of an international convention, combine persuasively the descriptive function of ‘codification’ with the prescriptive function of ‘progressive development’ in accord with the mission of the International Law Commission. She also confirms the influence of this statement of the law despite its lack of a formally obligatory character, including extensive reliance by the International Court of Justice in its decisions, and by parties in their submissions. 13. The Temple Case, 1962, ICJ, 6. 14. See ‘On the Legal Consequences’, para. 152. 15. du Plessis, op. cit., at 631. 16. See especially GA Res. 1803, December 14, 1962, Res. 3171, December 17, 1973; also Declaration on the Right to Development, December 4, 1986. 17. For a careful study of reparations in the Inter-American Human Rights System see Carrillo (Chapter 14, this volume). 18. Which is one of the conclusions at which de Greiff, Segovia, and others in this volume arrive. 19. For a sense of the professional viewpoint on reparations associated with international law practice see Shelton, op. cit. A typical view of the Versailles approach, primarily because the reparations features were regarded as symbolically humiliating and substantively burdensome for Germany and Germans, and thereby leading to a backlash, is the following: ‘The Treaty of Versailles . . . represented a peace without justice. The desire of the First World War victors to seek revenge against the vanquished is widely believed to have contributed to conditions which led to the Second World War.’ Stuart Rees, Passion for Peace (Sydney: New South Wales University Press, 2003), 21. Of course, it would be simplistic to explain the rise of Hitler by reference only to an extremist reaction to Versailles. See Hannah Arendt, The Origins of Totalitarianism 500 r i c h a r d f a l k (London: Allen and Unwin, 1951). For a recent inquiry into the origins of ‘radical evil’ as a political reality see Ira Katznelson, Desolation and Enlightenment: Political Know- ledge After Total War, Totalitarianism, and The Holocaust (New York: Columbia Uni- versity Press, 2003). 20. The issue of punishment and responsibility was individualized after World War II, as exemplified by the Nuremberg trials. See the instructive account in Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2000), esp. 14–205. For the international law foundations of the Nuremberg approach see Richard Falk, Gabriel Kolko, and Robert Jay Lifton, eds., Crimes of War (New York: Random House, 1971), 73–176. The lesson of Versailles was reinforced by geopolitical considerations that regarded the reconstruction of Germany (and Japan) as an essential element in the containment of the Soviet Union as the cold war unfolded and came to dominate the political imagination of those shaping the policies of leading Western states in the 1940s and 1950s. 21. See the study of the UNCC by van Houtte et al. (Chapter 9, this volume); and David Bederman, ‘The UN Compensation Commission and the Tradition of International Claims Assessment’, NYU Journal of International Law and Politics 27 (1) (1998). 22. For a range of critical assessments of sanctions imposed on Iraq see Anthony Arnove, ed., Iraq Under Siege: The Deadly Impact of Sanctions and War (Cambridge, MA: South End Press, 2000); a broader perspective is to be found in David Cortright and George A. Lopez, eds., The Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder, CO: Lynne Rienner, 2000), esp. 37–61. Also, Falk, ‘Iraq, the United States, and International Law: Beyond the Sanctions’, in Iraq: The Human Cost of History, Tareq Ismail and William W. Haddad, eds. (London: Pluto Press, 2004). 23. See Michael J. Bazyler, ‘Nuremberg in America: Litigating the Holocaust in United States Courts’, University of Richmond Law Review 34 (1) (2000). For a general study see Gregg J. Richman, Swiss Banks and Jewish Souls (New Brunswick, NJ: Transaction, 1999). 24. See Richard B. Lillich, International Claims: Their Adjudication by National Commis- sions (Syracuse, NY: Syracuse University Press, 1962) on the nationality of claims, and their discretionary prosecution, as well as international practice; discussed earlier in this chapter. 25. The role of sovereignty in creating sanctuaries for state wrongs is impressively depicted in Ken Booth, ‘Human Wrongs and International Relations’, International Affairs 71 (1) (1993): 103–26. 26. This argument is set forth in greater detail in Falk, ‘The Challenges of Humane Govern- ance’, in Concepts and Strategies in International Human Rights, George J. Andreopoulos, ed. (New York: Peter Lang, 2002), 21–50; for scholarly treatment that fails to address this hypothesis of nonimplementation see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, Intent (Philadelphia, PA: University of Pennsylvania Press, 1999). 27. For various aspects of this evolution see Andreopoulos, op. cit.; also Falk, Human Rights Horizons: The Prospect of Justice in a Globalizing World (New York: Routledge, 2000); for theoretical inquiry into the expanding status of individual rights see Jack Donnelly, Universal Human Rights: In Theory & Practice (Ithaca, NY: Cornell Univer- sity Press, 2003); the most comprehensive assessment of this trend can be found in Henry J. Steiner and Philip Alston, eds., International Human Rights in Context, 2nd edn. (New York: Oxford University Press, 2000). r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 501 28. Donnelly makes this point strongly. 29. For a pioneering study of legitimacy see Thomas M. Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990); further elaborated and explored in impressive detail in Thomas M. Franck, Fairness in International Law and Institutions (New York: Oxford University Press, 1995). Despite the sweep of coverage in this latter study, Franck gives no attention whatsoever to issues of corrective justice, and limits his relevant coverage to issues of ‘fairness’ associated with alien property claims (453–73). 30. Of course, from another perspective, Germany after 1945 could be described in a similar manner, but Germany was taking steps in the aftermath of a devastating military and political defeat, and in the midst of a foreign occupation, to restore its standing as a legitimate state. It seems like an antecedent case to that of victim-oriented reparations as conferred by Latin American legal initiatives. See the studies on German reparations by Ariel Colonomos and Andrea Armstrong (Chapter 10, this volume) and John Authers (Chapter 11, this volume). 31. Although not so formulated, this jurisprudence derives from the work of the New Haven School, especially Myres McDougal, Harold Lasswell, and Michael Reisman. For the most comprehensive overview see McDougal and Lasswell, Jurisprudence for a Free Society: Studies in Law, Science and Policy (New Haven, CT: Yale University Press, 1992). A constructivist account of political and conceptual reality is most explicitly set forth by Alexander Wendt in Social Theory of International Politics (Cambridge: Cambridge University Press, 1999). 32. Reparations can also be conceived, in part, as punitive, or at least directed toward burdening perpetrators with obligations. For insightful discussion of some of these issues see Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston, MA: Beacon, 1998). 33. See the study of South African reparations by Colvin (Chapter 5, this volume). 34. For one such example, see the study of reparations in Malawi by Cammack (Chapter 6, this volume). 35. A harm-based conception is more in accord with ideas of corrective justice, treating the victim as an autonomous subject entitled to compensation, at least to the extent otherwise feasible. 36. The issue of intertemporality is carefully considered by du Plessis, op. cit., in relation to efforts to obtain reparations on behalf of descendants of slaves. Interesting issues are posed as to the nature of victimization, and whether the grant of reparations, even in symbolic amounts, would not heal the inherited wounds of slavery and past forms of racial persecution and discrimination. 37. See study by Authers (Chapter 11, this volume). 38. Quoted in ‘Satisfaction not Guaranteed’, a review of books on the Holocaust dynamic by John Authers, Financial Times, August 23, 2003. 39. Among the treatments of this process see Stuart Eizenstat, Imperfect Justice (New York: Public Affairs Press, 2003); Michael Bazyler, Holocaust Justice (New York: New York University Press, 2003); and for a skeptical account see Norman Finkelstein, The Holocaust Industry (London: Verso, 2000). 40. These claims categories are included in Barkan, op. cit., and du Plessis, op. cit.; see also Falk, ‘Reviving the 1990s Trend toward Transnational Justice’, op. cit. 502 r i c h a r d f a l k 41. See study on reparations for Japanese-Americans by Yamamoto and Ebesugawa (Chap- ter 7, this volume). 42. For instance, in the declaration adopted at the 2001 Durban UN Conference on Racism and Development. It is notable that the US government withdrew its delegation from the conference, partly to protest criticism of Israel and partly because of reparation claims advanced in relation to the condemnation of slavery. On this issue generally see du Plessis, op. cit., for extensive treatment. 43. de Greiff spells out the possible consequences of a case-by-case approach (Chapter 12, this volume). 44. For an admirable overview see Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001). 45. It should be noted that this same selectivity applies in many crucial areas of inter- national law, including that of humanitarian intervention, regulation of nonprolifera- tion of weaponry of mass destruction, and enforcement of UN Security Council resolutions. It is an aspect of the balancing act that conjoins law and power within any social order, but its influence is more salient and pronounced in relation to global policy concerns. 46. See a useful overview in Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (New York: Norton, 1999). 47. For an analysis of reparations and the ICC see Pablo de Greiff and Marieke Wierda, ‘The Trust Fund for Victims of the International Criminal Court: Between Possibilities and Constraints’, in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, Marc Bossuyt, Paul Lemmens, Koen de Feyter, and Stephan Parmentier, eds. (Antwerp: Intersentia, 2005). 48. Such nominal forms of satisfaction can be worse than nothing to the extent that the claimant continues to feel the anguish associated with harm while the impression is spread that reparative justice has been rendered, setting the stage for reconciliation. r e p a r a t i o n s , i n t e r n a t i o n a l l a w , a n d g l o b a l j u s t i c e 503 0199291926-Grieff-Reparations 512.pdf 0199291926-Grieff-Reparations 513.pdf 0199291926-Grieff-Reparations 514.pdf 0199291926-Grieff-Reparations 515.pdf 0199291926-Grieff-Reparations 516.pdf 0199291926-Grieff-Reparations 517.pdf 0199291926-Grieff-Reparations 518.pdf 0199291926-Grieff-Reparations 519.pdf 0199291926-Grieff-Reparations 520.pdf 0199291926-Grieff-Reparations 521.pdf 0199291926-Grieff-Reparations 522.pdf 0199291926-Grieff-Reparations 523.pdf 0199291926-Grieff-Reparations 524.pdf 0199291926-Grieff-Reparations 525.pdf 0199291926-Grieff-Reparations 526.pdf 0199291926-Grieff-Reparations 527.pdf 0199291926-Grieff-Reparations 528.pdf 0199291926-Grieff-Reparations 529.pdf 0199291926-Grieff-Reparations 530.pdf 0199291926-Grieff-Reparations 531.pdf 0199291926-Grieff-Reparations 532.pdf 0199291926-Grieff-Reparations 533.pdf 0199291926-Grieff-Reparations 534.pdf 0199291926-Grieff-Reparations 535.pdf 0199291926-Grieff-Reparations 536.pdf 0199291926-Grieff-Reparations 537.pdf 
work_r6cd2a6wgjdknouc5hj4taj3vq	----	Journal of Experiential Education 2014, Vol. 37(1) 89 –103 © 2014 SAGE Publications Reprints and permissions: sagepub.com/journalsPermissions.nav DOI: 10.1177/1053825913518898 jee.sagepub.com Article Social Justice in Outdoor Experiential Education: A State of Knowledge Review Karen Warren1, Nina S. Roberts2, Mary Breunig3, and M. Antonio (Tony) G. Alvarez4 Abstract Outdoor experiential education has often been critiqued for its White, male, middle/upper-class, able-bodied history, thereby causing professionals and programs to consider issues of social justice. This state of knowledge paper will review the literature on social and environmental justice, identify gaps in current social justice literature and practice, and offer recommendations for creating a new history. Keywords outdoor experiential education, social justice, environmental justice Many experiential education professionals seek ways to fully understand the intersec- tions of experiential education with issues of social and environmental justice (Breunig, 2005). Demographic, economic, and social changes in society create an imperative for outdoor experiential education (OEE) professionals to meaningfully engage with these issues as vital components of their practice (Warren, 2012). This state of knowledge review will analyze the intersections of OEE and social justice, identify gaps in the current social justice literature and practice, and offer rec- ommendations for future research. The article draws from sociocultural, critical and feminist theories and draws on literature from peer-reviewed materials, as well as books, articles, and opinion pieces that are relevant to the field. As social justice 1Hampshire College, Amherst, MA, USA 2San Francisco State University, CA, USA 3Brock University, St. Catherines, Ontario, Canada 4University of Michigan, Ann Arbor, USA Corresponding Author: Karen Warren, Hampshire College, 893 West St., Amherst, MA 01002, USA. Email: kwCC@hampshire.edu 518898 JEEXXX10.1177/1053825913518898Journal of Experiential EducationWarren et al. research-article2014 mailto:kwCC@hampshire.edu 90 Journal of Experiential Education 37(1) concepts often vary greatly in different global societies, the focus will be on the state of knowledge of social justice as it has developed in North American outdoor programs. Outdoor Experiential Education and Social Justice The fields of experiential education are as varied and numerous as are the settings for experiential education practice. This article will focus on social justice topics specific to OEE, acknowledging that the outdoors refers to a broad spectrum from urban areas to wilderness spaces and that the outdoors represents one of the many diverse environ- ments and contexts for the enactment of experiential education. Similar to experiential education definitions, there exist numerous, overlapping, and contradictory definitions of social justice. Many critical pedagogues continue to assert that social justice theory must remain true to its Marxist roots, with its focus on economic inequities (McLaren, 2003). Others assert that social justice educators must adopt a more expansive lens, and that issues of social privilege and oppression involve examination of race/ethnicity, culture, gender and gender identity, age, ability, and religion as well as socioeconomic status (hooks, 2003). Outdoors and Adventure as Contested Constructs Nature and the meanings ascribed to the natural environment are rooted in history, gender, race, and culture (Ewert, Chavez, & Magill, 1993). Similarly, constructs of the concept of adventure are based on positions of privilege and oppression. For example, Little (2002) found that for women in the outdoors, the traditionally constructed adventure narrative was problematic, and they needed to negotiate and restructure their ideas about outdoor adventure to participate. For people with disabilities or poor people, outdoor adventure remains a contested area due to attitudinal, structural, and economic inequities of outdoor programs (Dillenschneider, 2007). Early questions about why there is a lack of participation among people of color in OEE (Ashley, 1990) led to an examination about the contested nature of outdoor places for oppressed groups. Johnson (1998) explored the social and collective mem- ory of Blacks in relation to the outdoors (e.g., slavery, share-cropping, lynching), thereby contesting the natural environment as a sanctuary or a place of refuge as has been reflected in predominantly White beliefs (Martin, 2004). Collective memory of past experiences of legally mandated segregation, the flight from rural to urban areas due to forced labor outdoors, and racially motivated violence that most typically occurred in remote areas continues to play a role in deciding how people of color spend time in nature (Taylor, 1989). Latinos, likewise, have reported feeling unwelcome or discriminated against despite many outdoor areas in the United States “reminding them of their homelands” (Chavez, 2005, p. 32). Native American authors (Hall, 1992; Oles, 1992) have pointed to the misappropriation of cultural and spiritual practices into OEE programs as a contested area in the field. For people of color, broadly, the everyday practices aligned Warren et al. 91 with environmental interactions are directly related to issues of identity and cultural history (Finney, in press). Moreover, the dominant narrative of preservation—that wil- derness should remain untrammeled versus used for sustenance—has also been a fac- tor in thinking about race and class (Agyeman, 1989). Too often well-intentioned people and organizations position themselves as know- ing more about what communities want and need more than the communities them- selves (Agyeman, 2003). By talking about communities as “others” who need to be saved by programmatic, structured experiences in the outdoors, professionals are missing the existing empowered connections to nature informed by the communities themselves. As noted by Roberts (2008), “social trends show an often deep and profound con- nection to the land yet, culturally, there are numerous subcultural as well as self- imposed personal constraints limiting outdoor experiences” (p. 93). This is substantiated by Finney (in press), who reports there is a persistent feeling by people of color that being involved with the environment is something White people do; yet on another level, there is a passionate acknowledgment about the importance of nature and the land and a need to claim a place within it. As Byrne and Wolch (2009) have documented, the exclusion of the poor and people of color in parks and other outdoor spaces was a hallmark of the U.S. system as these spaces were “founded upon middle- and upper-class sensibilities and eugenicist ide- ologies about pristine wilderness” (p. 5). In sum, any meanings ascribed to nature or perceptions of place, as well as how adventure is defined, have not always fit the tra- ditional Eurocentric, able-bodied, male paradigm. Social Identities in Outdoor Experiential Education Social justice theory embraces the idea that social identities such as race, class, and gender exist in intersectionality, that is, in the belief that social identities do not act independently, instead interact in an intersection of systematic oppression (Shinew, Floyd, McGuire, & Noe, 1995). The OEE field has been slower to chronicle intersec- tionality, with the early literature often addressing independent social identities (Warren, 2005). The sections that follow will explore the state of knowledge concern- ing select social identities while acknowledging these issues are interwoven and mutu- ally reinforcing. Gender Discussion about gender in OEE has focused on the experiences of women and, more recently, girls in the outdoors. As Bell (1997) has posited, this literature, although more expansive than any of the other broad topics dealing with social justice in the OEE field, is under-theorized and lacking in feminist theory as it deals with women’s issues rather than the complexity of gender relations (Freysinger, Shaw, Henderson, & Bialeschki, 2013). Gender role socialization and conditioning, a factor in unequal power relationships in OEE programs and leadership positions for adult women (Warren, 1998), has 92 Journal of Experiential Education 37(1) continued over time. More recently, a movement toward studying girls’ experiences has arisen (e.g., Whittington & Mack, 2010), with this literature currently examining what works best for girls in adventure programming. The value of single gender experiences for women/girls has been firmly established in the outdoor field as a way to provide supportive environments for females to learn (Hornibrook et al., 1997; Warren, 1996). Pertinent questions arise about the continued emphasis on women-only experiences, whether single gender experiences can be rep- licated within mixed gender outdoor environments (Mitten, 1985), and if new research can find ways to mitigate factors that continue to disadvantage women and girls in OEE (Mitten, Warren, Lotz, & d’Amore, 2012). Furthermore, language is a fundamental part of social justice. The persistent use of the terms “hard” and “soft” skills in the outdoor field and gender-biased language are examples of linguistic sexism that continue to support gender role conditioning (Jordan, 1990; Shooter, Sibthorp, & Paisley, 2009). In addition, feminist critiques of teaching and learning in the outdoors point out its gender-privileged nature (Warren & Loeffler, 2006). A recent study on the hidden curriculum in adventure education found messages that value physical and technical skills over intellectual, social, emotional and moral development; gendered images in media; language of “hard skills” and “soft skills”; an orientation that favors males over females in hiring, promotion, assigning leadership role; and facilitation and instructional styles that fail to account for gender of instructor/participants were a constraint for women in OEE leadership and participation (Mitten et al., 2012, p. 39). Furthermore, a glass ceiling for women’s career development in outdoor fields has also been noted (Loeffler, 1996). Gaps in the OEE literature concerning gender include the invisibility of the experi- ence of women/girls of color (Roberts & Drogin, 1993), its hetero-normative nature (Russell, Sarick, & Kennelly, 2003), rare examinations of men’s role in the dialogue (Rasberry, 1991), and nascent attention to transgendered issues (Mitten, 2012; Wilson & Lewis, 2012). Race and Ethnicity What is known about the participation in OEE programs seems to vary by race/ethnic- ity. The state of knowledge of race and ethnicity in OEE moved from exploring race primarily as “black versus white” (Roberts & Drogin, 1993; Washburne, 1978) to investigating Latinos (Chavez, 1992; Noe & Snow, 1990), with fewer studies includ- ing Native American (Hall, 1992; McDonald & McAvoy, 1997) and Asian experiences in the outdoors (Winter, Jeong, & Godbey, 2004). Biracial and multiracial populations are still missing from the equation (Roberts, 2013). Research has investigated different types of barriers (e.g., socioeconomic, lack of knowledge, discomfort) along with attitudes, prejudice, perceived discrimination, marginality, and injustice and inequality as experienced in OEE programs (see Allison, Warren et al. 93 1996; Ashley, 1990; Martin, 2004; Roberts, 1996; Warren, 2005). Furthermore, chal- lenging the field to explore new methods of facilitation in the OEE, Warren (1998) scrutinized how some leaders can alienate ethnic minorities, among other groups, based on their assumptions and lack of cultural competency. Subsequently, understanding cultural traditions and norms as a more holistic van- tage point has begun to infiltrate the literature (Roberts & Chitewere, 2011). For instance, professionals in the OEE field have addressed racism by unpacking the invis- ible knapsack of White privilege: the unearned and often unseen advantages White people experience in outdoor adventure (Rose & Paisley, 2012). Cultural studies and critical research perspectives, with the goal of interrogating racial assumptions and White privilege in OEE, are making their way into outdoor learning and instruction as well (Lynch, 2012). Ability Any discussion of “able bodied” is predicated on the assumption that there exists dis- abled “others.” Rather than adopting this binary categorization, this section will pres- ent the concepts of universal design, inclusion, and integration for all people engaged in OEE. Early therapeutic outdoor programs for people with disabilities used a practice of segregation (Dillenschneider, 2007). The Americans with Disabilities Act (ADA), among other legislation, gave support to the evolution in thinking about outdoor pro- gramming for people with disabilities toward inclusion and integration for all. Inclusion is an attitude and approach that seeks to ensure that every person, regardless of ability or background, can meaningfully participate in all aspects of life. Integration is the act of combining individuals to make a unified whole, for example, wilderness experiences including persons with and without disabilities (Schleien, McAvoy, Lais, & Rynders, 1993). Holman and McAvoy (2005) found that participants in integrated wilderness programs were able to transfer positive outcomes back to their daily lives. In addition, “person first” language (Zeller, Doyle, & Snodgrass, 2006), adapta- tions in outdoor equipment (Havens, 1992), and universal design have been adopted in OEE programs (Schleien et al., 1993). Universal design is a process that includes consideration of environments, facilities, equipment, programs, processes, lessons, and other resources, with the goal of inclusion for all people to the greatest extent pos- sible (Center for Universal Design, 2013). Universal design thus aims to enable all people to have equal opportunities to participate in every aspect of OEE. Other Social Identities Attention to the poverty of at-risk youth in outdoor programs has been the predomi- nant way to examine socioeconomic class in OEE (Davis-Berman & Berman, 1999). As explorations of class issues in the OEE literature have been scarce, this area deserves more focus in the future (Sikorcin, 2003). Similarly, what is known about sexual orientation and age in OEE has been only minimally developed. Although 94 Journal of Experiential Education 37(1) McClintock (1996) has written about lesbian baiting as one form of homophobia in outdoor programs, there is also a need for greater examination of this topic. Finally, Sugerman (1999) contends that older adults are a population that has been “seriously neglected and that there is a need to develop programs for them that revive former skills and interests and teach new ones” (p. 388). Environmental Justice Any discussion of social justice in OEE must include environmental justice because, as some authors assert, the most pressing and basic environmental issue is social inequality (Mohai, Pellow, & Roberts, 2009). Outdoor and environmental education exists at the very junction of social problems, and thus environmental justice issues are inextricably linked to social ones and vice versa (Gruenwald, 2003). The early history of environmental (in)justice is represented in the oppression of indigenous peoples, including their displacement from the outdoor environment and the hunting and gathering practices that sustained them, rooting any discussion of environmental justice in the Western, White colonization of the outdoors itself (Gruenwald, 2003). The term “environmental racism” first appeared in the literature in the 1980s, with research concluding that environmental hazards were disproportion- ately located in marginalized communities, primarily Black, Hispanic, or First Nations (Haluza-Delay, 2012). In the 1990s, the term “environmental justice” surfaced, referring to the efforts of confronting environmental racism. Bullard (1993) led an equity movement to combat the oppression that people of color experienced—those factors that regularly relegated them to marginalized positions with little political power, with health issues affecting their quality of life, and with minimal access to leisure opportunities. Further research concluded that this form of environmental racism extended beyond home spaces to include access to outdoor recreational opportunities, other quality of life pursuits, and mere survival (Johnson, 1998). Research in OEE has begun to show how environmental justice issues include con- straints to participation in outdoor programs (Gomez, 2008). For example, ethnic minorities and poor people with an increased exposure to environmental hazards expe- rience a decreased connection to more positive environmental amenities and outdoor recreation areas (Bullard, 2001). The environmental movement has always been a powerful social force affecting the work of OEE in some capacity; research shows that an urgent challenge is to “use the injustice frame to identify and analyze racial, class, and gender disparities and to emphasize improved quality of life, autonomy, and self- determination, human rights, and fairness” (Taylor, 2002, p. 41) Approaches to Social Justice in OEE Theory and Practice Approaches While there has been a sustained call for inclusion, diversity and social justice in the OEE community, there has been no clear consensus on how to achieve that goal Warren et al. 95 (Garvey, Mitten, Pace, & Roberts, 2008). Some authors support contact theory (Allport, 1954/1979), which suggests that interactions between people of color and White participants lead to a greater understanding and a reduction in prejudice in both groups (Seaman, Beightol, Shirilla, & Crawford, 2010). The study by Seaman and col- leagues concluded that diversity-related outcomes can be achieved by use of nonfor- mal experiential activities such as challenge courses and community service, while maintaining the optimal conditions of intergroup contact theory. A belief in the value of racially mixed programming has impelled outdoor organizations to invite people of color to their outdoor adventure programs through the use of written materials show- ing visible racial and ethnic minorities, recruitment of staff of color, and the emphasis on role models from diverse groups (Benepe, 1992). However, few programs have “moved beyond a basic recognition of the need to be culturally inclusive” (Roberts & Rodriguez, 1999, p. 2) to a critical examination of social justice (Frazer, 2009). Other literature points out that the entire structure of outdoor programs need sys- temic analysis, with change emanating from attempts to break entrenched paradigms that support an uncritical culture of outdoor adventure (Warren, 2012). Examples of this taken-for-granted culture of outdoor programming include valuing individualism and autonomy in outdoor experiential education, whereas oppressed cultures tradition- ally have gathered in community or family for support and even survival (Bailey, 1999). The OEE field has also embraced the use of experiential activities to teach about social justice issues. Drawing from social justice education work (Adams, Bell, & Griffin, 2007), a toolbox approach using experiential social justice activities has been used to change personal beliefs and values to create a better world (Chappelle, Bigman, & Hillyer, 1998). Such toolbox approach depends more on raising awareness of social justice issues on an individual level, rather than making structural changes in organi- zational cultures or society, to address the lived experiences of oppressed people. Outdoor Leadership Approaches Early definitions of outdoor leadership were based on dominant meanings and inter- ests—those inherited from past tradition applied to explain the present condition (Martin, Cashel, Wagstaff, & Breunig, 2006). Historically, leadership characteristics and qualities that have been touted as admirable and preferred are those possessed by White, able-bodied, upper-class, heterosexual males (Bell, 1996), reifying specific sociopolitical and sociocultural ideologies. Warren (2002) concluded that outdoor leadership is constrained by an elitist attitude that favors those instructors who have graduated from expensive instructor training courses and, overall, privileges White, male outdoor leadership perspectives. Explicit evidence of this can be found in the “traditional” outdoor leadership curriculum and textbooks that have largely ignored social justice education (Warren, 2002). Implicitly, there exists a hidden curriculum in outdoor leadership that communicates meanings of physical strength (Newberry, 2003), consists of a wide array of outdoor literature representing White male outdoor leaders, and uses “standard” facilitative practices that value certain individuals and voices over others (Warren, 1998). 96 Journal of Experiential Education 37(1) Research on outdoor leadership has explored how effective leadership strategies to promote positive group experiences on outdoor trips can occur through recognition of diversity (Mitten, 1989). For example, women and other historically oppressed indi- viduals could be encouraged to express their perspectives, in an effort to bring about greater acceptance and to lessen fear and marginalization (Mitten, 1989). Warren (1998) emphasized the importance of race, gender, and class-sensitive facilitation in OEE as an essential component of outdoor leadership training. Other authors have described culturally competent leadership training as including diversity knowledge, social justice awareness, and cross-cultural skills (Washington & Roberts, 1999). Presently, some outdoor organizations hire diversity trainers to conduct work- shops for students and instructors. The focus of these trainings has shifted from the idea of diversity toward knowledge of cultural competency, hence emphasizing the concepts of privilege and oppression. Cultural competency as both a pragmatic need and area of research interest is increasingly being explored in OEE (Frazer, 2009). The core leadership competencies exhibited by a culturally competent leader, with a view toward inclusion, include a servant leadership approach, ability to apply integration strategies regardless of par- ticipant abilities, and ability to adapt an activity and alter the environment (Lais, 2001). How to develop culturally competent outdoors leaders who can address social and environmental justice in programs will need to be a continuing focus of research (Rodriguez & Roberts, 2005). Adventure Therapy Approaches In the 1980s and 1990s, as the adventure therapy field started to use licensed, clinically trained staff, more of these professionals sought training to supplement their therapeu- tic understandings with outdoor adventure techniques. Social workers, through their National Association of Social Workers (NASW) Code of Ethics, are asked to challenge social injustice . . . through social change efforts . . . focused primarily on issues of poverty, unemployment, discrimination and other forms of oppression . . . Hence as the numbers of social workers involved in OEE has grown in numbers, so has the clamor for making social justice not only a critical core value of the work but also an important outcome as we advocate for the formulation of practice principles that link social justice goals with daily realities.” (Reisch, 2010, p. 11) Ethical guidelines and professional competencies currently call for enhanced knowledge in social justice, advocacy, and action (Gass, Gillis, & Russell, 2012), yet in these programs, many directed by social workers, little has been written about their social justice perspective. An apparent gap in the literature is the intentionality for social justice outcomes in the field. It is critical for social workers and other mental health professionals to assist clients/participants in reframing internalized oppression so they can develop a greater understanding of the injustice they experience (Reisch, 2010). Warren et al. 97 Educational Approaches The birth of new perspectives adding to this body of knowledge was the advent of multicultural environmental education (Running Grass, 1996). A Native American practitioner and scholar, Running Grass was in the forefront of developing a “vehicle for voices, a link in a chain, a counter-narrative” (p. 1) through what became four streams of multicultural environmental education: environmental education, multicul- tural education, critical pedagogy, and environmental justice. Matthews (1994) promoted multiculturalism in outdoor education by recommend- ing that leaders incorporate a multicultural approach and promote the exploration of traditions as a means of finding common ground among cultures. Roberts and Rodriguez (1999) indicated that opportunities for diverse participants to cooperate, solve problems, exercise critical thinking skills, and develop communication within the group are augmented when conscious multicultural approaches are used and discussed. Another educational approach in OEE has been the establishment of urban adven- ture programs. These programs, predicated on the accessibility of bringing the pro- gram to the participants rather than the participants to the woods, use the urban environment as a dynamic adventure classroom for inner city youth (Proudman, 1999). Outward Bound (OB) established several new urban centers across the United States to work with schools and community organizations through customized programs. In addition, two new OB Canada urban centers bring OEE principles and practices into the K-12 schools (see http://ouwardbound.ca). Educational approaches in OEE should extend beyond increasing students’ knowl- edge about themselves and the environment to focus on promoting pro-social and pro-environmental behavior change, thereby encouraging students to serve as social and environmental change agents (Breunig, 2013). Integration of multicultural out- door education is reflected in a transformation of program agendas, management poli- cies, organizational strategies, and leadership actions (Rodriguez & Roberts, 2005) so that all outdoor education is pro-social with multicultural education at its core. Future Directions It is essential for outdoor experiential scholars and practitioners to recognize what has been done and identify the gaps for future research and implications for practice. In light of this review and the conclusions drawn, the following topics merit further con- sideration and exploration: •• Reconceptualizing meanings of outdoor places and the concept of adventure •• Intersectionality of race, class, gender, and other identities •• Poststructural feminist frameworks to examine gender •• Experiences of biracial and multiracial populations •• Attitudes and perceptions of ethnic minorities regarding what manner they are influenced by racialized constructions including how different cultural groups experience the outdoors http://ouwardbound.ca 98 Journal of Experiential Education 37(1) •• Immigrants/undocumented participants’ potential exclusion from programs •• Understanding the role of socioeconomics and class oppression •• Universal design and accessibility as the norm •• Cultural competency training, education and leadership development •• Critiques of the visual and media images of outdoor leaders and participants •• Attention to social justice theory and practice in outdoor adventure therapy •• Critically reflexive experiential education research agenda supported by prin- cipled strategic interventions in power relations among practitioners •• Understanding how to make all OEE programs multicultural Conclusion To review what is known about social and environmental justice in outdoor experien- tial education may be seen as exercise in both hope and despair. On one hand, despair is reflected in these persistent questions: Why do some organizations promote social justice yet, as Allison (1996) has stated, still foster inequity in access and program offerings? Why is the conversation about social justice not a robust part of every out- door program? What will it take before OEE programs become genuinely accessible to all who want to participate? Conversely, there is hope as reflected in this state of knowledge review. Professionals, researchers, and practitioners continue to advance theory and practice to create a more just OEE field. While more robust research on many of the ideas presented is needed, the OEE field continues to grapple with social justice. Critical research, in addition to the current focus on outcomes-based research, promises to provide a fuller under- standing of social justice in OEE (Lynch, 2012). The future will require an even stron- ger commitment and greater willingness to deal with issues of power and social injustice on the part of experiential educators and OEE programs. Change is not pos- sible any other way. Declaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author(s) received no financial support for the research, authorship, and/or publication of this article. References Adams, M., Bell, L. A., & Griffin, P. (2007). Teaching for diversity and social justice (2nd ed.). New York, NY: Routledge. Agyeman, J. (2003). “Under-participation” and ethnocentrism in environmental education research: Developing “culturally sensitive research approaches.” Canadian Journal of Environmental Education, 8, 81-95. Warren et al. 99 Agyeman, J. (1989). Black people, white landscape. Town and Country Planning, 8, 12, 336-38 Allison, M. (1996). The challenge of diversity: Embracing those on the fringes. Journal of Experiential Education, 19, 122-126. Allport, G. (1979). The nature of prejudice. Reading, MA: Addison-Wesley. (Original work published 1954) Ashley, F. B. (1990). Ethnic minorities’ involvement in outdoor experiential education. In J. C. Miles & S. Priest (Eds.), Adventure education (pp. 369-373). State College, PA: Venture Publishing. Bailey, J. (1999). A world of adventure education. In J. C. Miles & S. Priest (Eds.), Adventure programming (pp. 39-42). State College, PA: Venture Publishing. Bell, M. (1996). Feminists challenging assumptions about outdoor leadership. In K. Warren (Ed.), Women’s voices in experiential education (pp. 141-156). Dubuque, IA: Kendall Hunt. Bell, M. (1997). Gendered experience: Social theory and experiential practice. Journal of Experiential Education, 20, 143-151. Benepe, S. (1992). Racial and ethnic diversity in wilderness use and environmental education. Lander, WY: National Outdoor Leadership School. Breunig, M. (2005). Turning experiential education and critical pedagogy theory into praxis. Journal of Experiential Education, 28, 106-122. Breunig, M. (2013). Environmental sustainability and environmental justice: From buzzwords to emancipatory pro-environmental behaviour change. Journal of Sustainability Education, 5, 232-248. Bullard, R. (1993). Confronting environmental racism: Voices from the grassroots. Boston, MA: South End Press. Bullard, R. (2001). Environmental justice in the 21st century: Race still matters. Phylon, 49(3), 151-171. Byrne, J., & Wolch, J. (2009). Nature, race, and parks: Past research and future directions for geographic research. Progress in Human Geography, 33, 743-765. Center for Universal Design. (2013). Universal design principles. Champaign, IL: Human Kinetics. Chappelle, S., Bigman, L., & Hillyer, F. (1998). Diversity in action. Hamilton, MA: Project Adventure. Chavez, D. J. (1992). Hispanic recreationists in the wildland-urban interface. Trends, 28(4), 23-25. Chavez, D. J. (2005). Latinos and public lands in California. California Recreation & Parks, 61(2), 32-35. Davis-Berman, J., & Berman, D. (1999). The use of adventure-based programs with at-risk youth. In J. C. Miles & S. Priest (Eds.), Adventure programming (pp. 385-388). State College, PA: Venture Publishing. Dillenschneider, C. (2007). Integrating persons with impairments and disabilities into standard outdoor adventure programs. Journal of Experiential Education, 30, 70-83. Ewert A., Chavez, D. J., & Magill, A. W. (Eds.). (1993). Culture, conflict, and communication in the wildland-urban interface. Boulder, CO: Westview Press. Finney, C. (in press). Black faces, white spaces: African Americans and the great outdoors. Chapel Hill, NC: UNC Press. Frazer, R. (2009). Toward a theory of critical teaching for social justice in outdoor educa- tion studies: A grounded theory study of philosophical perspectives and teaching practices (Unpublished doctoral dissertation). University of Wisconsin, Madison. 100 Journal of Experiential Education 37(1) Freysinger, V. J., Shaw, S. M., Henderson, K. A., & Bialeschki, M. D. (2013). Leisure, women, and gender. State College, PA: Venture Publishing. Garvey, D., Mitten, D., Pace, S., & Roberts, N. S. (2008). A history of AEE. In K. Warren, D. Mitten, & T. A. Loeffler (Eds.), Theory and practice of experiential education (pp. 93-104). Boulder, CO: Association for Experiential Education. Gass, M. A., Gillis, H. L., & Russell, K. C. (2012). Adventure therapy: Theory, research and practice. New York, NY: Routledge. Gomez, E. (2008). Race, ethnicity, recreation, and leisure: An identification of research gaps. In D. J. Chavez, P. L. Winter, & J. D. Absher (Eds.), Recreation visitor research: Studies of diversity (pp. 75-84). Riverside, CA: U.S. Department of Agriculture, Forest Service, Pacific Southwest Research Station. Gruenwald, D. (2003). The best of both worlds: A critical pedagogy of place. Educational Researcher, 32(4), 3-12. Hall, M. (1992). The use in experiential education of ceremonies and rituals from Native American cultures. Journal of Experiential Education, 15(1), 51-55. Haluza-Delay, R. (2012). Educating for environmental justice. In R. B. Stevenson, M. Brody, J. Dillon, & A. E. J. Walls (Eds.), International handbook of research in environmental education (pp. 390-399). New York, NY: Routledge. Havens, M. (1992). Bridges to accessibility: A primer for including persons with disabilities in adventure curricula. Dubuque, IA: Kendall Hunt. Holman, T., & McAvoy, L. (2005). Transferring benefits of participation in an integrated wil- derness adventure program to daily life. Journal of Experiential Education, 27, 322-325. hooks, b. (2003). Teaching community: A pedagogy of hope. New York, NY: Routledge. Hornibrook, T., Brinkert, E., Parry, D., Seimens, R., Mitten, D., & Priest, S. (1997). The ben- efits and motivations of all-women outdoor programs. Journal of Experiential Education, 20, 152-158. Johnson, C. Y. (1998). A consideration of collective memory in African American attachment to wildland recreation places. Human Ecology Review, 5(1), 5-15. Jordan, D. (1990). Snips and snails and puppy dog tails—The use of gender-free language in experiential education. Journal of Experiential Education, 13(2), 45-49. Lais, G. (2001). Accessible adventure: Leadership techniques that facilitate full participation by all. Taproot, 31, 3-10. Little, D. E. (2002). Women and adventure recreation: Reconstructing leisure constraints and adventure experiences to negotiate continuing participation. Journal of Leisure Research, 34, 157-177. Loeffler, T. A. (1996). Leading the way: Strategies that enhance women’s involvement in expe- riential education careers. In K. Warren (Ed.), Women’s voices in experiential education (pp. 94-103). Dubuque, IA: Kendall Hunt. Lynch, P. (2012). Critical research produces a robust knowledge base for adventure program- ming. In B. Martin & M. Wagstaff (Eds.), Controversial issues in adventure programming (pp. 309-315). Champaign, IL: Human Kinetics. Martin, B., Cashel, C., Wagstaff, M., & Breunig, M. (2006). Outdoor leadership: Theory and practice. Champaign, IL: Human Kinetics. Martin, D. C. (2004). Apartheid in the great outdoors: American advertising and the reproduc- tion of a racialized outdoor leisure identity. Journal of Leisure Research, 36, 513-535. Matthews, B. (1994). Does outdoor and environmental education have a role in multicultural education? Pathways to Outdoor Communication, 4(1), 8-13. McClintock, M. (1996). Lesbian baiting hurts all women. In K. Warren (Ed.), Women’s voices in experiential education (pp. 241-250). Dubuque, IA: Kendall Hunt. Warren et al. 101 McDonald, D., & McAvoy, L. (1997). Native Americans and leisure: State of research and future directions. Journal of Leisure Research, 29, 145-166. McLaren, P. (2003). Life in schools: An introduction to critical pedagogy in the foundation of education. Boston, MA: Allyn & Bacon. Mitten, D. (1985). A philosophical basis for a women’s outdoor adventure program. Journal of Experiential Education, 8(2), 20-24. Mitten, D. (1989). Healthy expressions of diversity lead to positive group experiences. Journal of Experiential Education, 12(3), 17-22. Mitten, D. (2012). Transgender and gender-nonconforming participation in outdoor adventure programming: Let’s go mainstream. In B. Martin & M. Wagstaff (Eds.), Controversial issues in adventure programming (pp. 235-240). Champaign, IL: Human Kinetics. Mitten, D., Warren, K., Lotz, E., & d’Amore, C. (2012). The hidden curriculum in adventure education: A Delphi study. In A. Ewert & S. Taniguchi (Eds.), Proceedings of the 2012 symposium on experiential education research (pp. 37-40). Madison, WI: AEE. Mohai, P., Pellow, P., & Roberts, T. (2009). Environmental justice. Annual Review of Environment and Resources, 34, 405-430. Newberry, L. (2003). Will any/body carry that canoe? A geography of the body, ability, and gender. Canadian Journal of Environmental Education, 8, 204-216. Noe, F. P., & Snow, R. (1990). Hispanic cultural influence on environmental concern. The Journal of Environmental Education, 21(2), 27-34. Oles, G. W. (1992). “Borrowing” activities from another culture: A Native American’s perspec- tive. Journal of Experiential Education, 15(3), 20-22. Proudman, S. (1999). Urban adventure in 1989 and reflections 10 years after. In J. C. Miles & S. Priest (Eds.), Adventure programming (pp. 331-339). State College, PA: Venture Publishing. Rasberry, G. (1991). Learning to cross the street: A male perspective on feminist theory. Journal of Experiential Education, 14(3), 6-11. Reisch, M. (2010). Defining social justice in a socially unjust world. In J. M. Bierkenmaier, A. Cruce, J. Curley, E. Burkemper, R. J. Wilson, & J. J. Stretch (Eds.), Educating for social justice: Transformative experiential learning (pp. 11-28). Chicago, IL: Lyceum Books. Roberts, N. S. (1996). NAALA in experiential education: Beyond participation. Journal of Experiential Education, 19, 117-118. Roberts, N. S. (2008). Use of public lands and open space for recreation: Connecting with diverse communities. In D. Newsom & B. Gentry (Eds.), Proceedings from the broadening the base through open space: Addressing demographic trends by saving land and serving people (pp. 93-105). Asilomar, CA: Yale Conservation Strategies Workshop. Roberts, N. S. (2013). Mixed race or mixed up? Making progress and breaking down barriers. In D. Dustin & K. Schwab (Eds.), Just leisure: Addressing social and environmental justice in parks, recreation and tourism (pp. 27-34). Urbana, IL: Sagamore. Roberts, N. S., & Chitewere, T. (2011). Speaking of justice: Exploring ethnic minority perspec- tives of the golden gate national recreation area. Environmental Practice, 13(4), 1-16. Roberts, N. S., & Drogin, E. B. (1993). The outdoor recreation experience: Factors affecting participation of African American women. Journal of Experiential Education, 16, 14-18. Roberts, N. S., & Rodriguez, D. R. (1999). Multicultural issues in outdoor education. Charleston, WV: ERIC Clearinghouse on Rural Education and Small Schools Appalachia Educational Laboratory. Ed 1.331/2:edo-rc-99-6. Rodriguez, D. A., & Roberts, N. S. (2005). Understanding the influence of gender and ethnicity on evaluations of outdoor leader effectiveness. World Leisure, 47(1), 32-44. 102 Journal of Experiential Education 37(1) Rose, J., & Paisley, K. (2012). White privilege in experiential education: A critical reflection. Leisure Sciences, 34, 136-154. Running Grass. (1996). The four streams of multicultural environmental education. Race, Poverty, & the Environment, 2(3), 1-2. Russell, C., Sarick, T., & Kennelly, J. (2003). Queering outdoor education. Pathways: The Ontario Journal of Outdoor Education, 15(1), 16-19. Schleien, S. J., McAvoy, L. H., Lais, G. J., & Rynders, J. E. (1993). Integrated outdoor educa- tion and adventure programming. Champaign, IL: Sagamore. Seaman, J., Beightol, J., Shirilla, P., & Crawford, B. (2010). Contact theory as a framework for experiential activities as diversity education: An exploratory study. Journal of Experiential Education, 32, 207-225. Shinew, K. J., Floyd, M. F., McGuire, F. A., & Noe, F. P. (1995). Gender, race, and subjective social class and their association with leisure preferences. Leisure Sciences, 17, 75-89. Shooter, W., Sibthorp, J., & Paisley, K. (2009). Outdoor leadership skills: A program perspec- tive. Journal of Experiential Education, 32, 1-13. Sikorcin, I. (2003). Exploring social class in outdoor environmental education. Pathways: The Ontario Journal of Outdoor Education, 15(1), 20-23. Sugerman, D. (1999). Programming adventure for older adults. In J. C. Miles & S. Priest (Eds.), Adventure programming (pp. 385-388). State College, PA: Venture Publishing. Taylor, D. E. (1989). Blacks and the environment: Toward an explanation of the concern and action gap between blacks and whites. Environment and Behavior, 21, 175-205. Taylor, D. E. (2002). Race, class, gender, and American environmentalism (USDA Forest Service, General Technical Report, PNW-GTR-534, p. 51). Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. Warren K. (Ed.). (1996). Women’s voices in experiential education. Dubuque, IA: Kendall Hunt. Warren, K. (1998). A call for race, gender, and class sensitive facilitation in outdoor experiential education. Journal of Experiential Education, 21, 21-25. Warren, K. (2002). Preparing the next generation: Social justice in outdoor leadership education and training. Journal of Experiential Education, 25, 231-238. Warren, K. (2005). A path worth taking: The development of social justice in outdoor experien- tial education. Equity & Excellence in Education, 38, 89-99. Warren, K. (2012). Paradigms of outdoor adventure and social justice. In B. Martin & M. Wagstaff (Eds.), Controversial issues in adventure programming (pp. 120-125). Champaign, IL: Human Kinetics. Warren, K., & Loeffler, T. A. (2006). Factors that influence women’s technical skill devel- opment in outdoor adventure. Journal of Adventure Education and Outdoor Learning, 6, 107-120. Washburne, R. (1978). Black under-participation in wildland recreation: Alternative explana- tions. Leisure Sciences, 1, 175-189. Washington, S. J., & Roberts, N. S. (1999). Adventure education for teaching cross-cultural competencies. In J. C. Miles & S. Priest (Eds.), Adventure programming (pp. 359-364). State College, PA: Venture Publishing. Whittington, A., & Mack, E. (2010). Inspiring courage in girls: An evaluation of practices and outcomes. Journal of Experiential Education, 33, 166-180. Wilson, J., & Lewis, S. (2012). Transgender-specific programming: An oasis in the storm. In B. Martin & M. Wagstaff (Eds.), Controversial issues in adventure programming (pp. 229- 234). Champaign, IL: Human Kinetics. Warren et al. 103 Winter, P. L., Jeong, W. C., & Godbey, G. C. (2004). Outdoor recreation among Asian Americans: A case study of San Francisco bay area residents. Journal of Park and Recreation Administration, 22(3), 114-136. Zeller, J., Doyle, R., & Snodgrass, K. (2006). Accessibility guidebook for outdoor recreation and trails. Missoula, MT: U.S. Department of Agriculture, Forest Service, Missoula Technology and Development Center. Author Biographies Karen Warren, Ph.D., is an Instructor in the Outdoors Program/Recreational Athletics Department and at Hampshire College and Graduate Program Advisor at Prescott College. She is editor of The Theory of Experiential Education and Women’s Voices in Experiential Education. Research interests include social justice in outdoor adventure education, experiential education theory and practice, and gender and risk. Nina S. Roberts, Ph.D., is an Associate Professor in the Department of Recreation, Parks, & Tourism at San Francisco State University. She is the Director of the SF State Pacific Leadership Institute. Research interests include outdoor programming and leadership, youth development, recreation land management, constraints and barriers to visiting parks and public lands, and the intersection of race, class and gender in outdoor/adventure education. Mary Breunig, Ph.D., is an Associate Professor in the Department of Recreation and Leisure Studies at Brock University. Research interests include outdoor and environmental education within the K-12 schools (Ontario), experiential education and social justice; critical pedagogy and Freirean praxis both in and out of the classroom; wilderness trips and psychological sense of community. M. Antonio (Tony) G. Alvarez, MSW, is a Clinical Assistant Professor at the University of Michigan, School of Social Work and serves as the School's point person for the use of experi- ential, adventure and wilderness approaches to social work practice. Research interests include adventure based practice, child welfare, community-based interventions, bullying and suicide prevention and intervention, international social work, and practice with indigenous and immi- grant populations. 
work_r6ob6vq4svhbznl264w5eqzkhu	----	S1744552307002017jra 81..88 Edinburgh Research Explorer Transitional Justice Citation for published version: Bell, C, Campbell, C & Ní Aoláin , F 2007, 'Transitional Justice: (Re)Conceptualising the Field', International Journal of Law in Context, vol. 3, no. 2, pp. 81-88. https://doi.org/10.1017/S1744552307002017 Digital Object Identifier (DOI): 10.1017/S1744552307002017 Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Published In: International Journal of Law in Context Publisher Rights Statement: © Cambridge University Press. Bell, C., Campbell, C. & Ní Aoláin , F. (2007) "Transitional justice: (re)conceptualising the field", International Journal of Law in Context. 3, 2, p. 81-88. The final publication is available at: http://journals.cambridge.org/abstract_S1744552307002017 General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1017/S1744552307002017 https://doi.org/10.1017/S1744552307002017 https://www.research.ed.ac.uk/portal/en/publications/transitional-justice(a7eb762b-006e-4824-986f-4fdd0d2efae6).html International Journal of Law in Context http://journals.cambridge.org/IJC Additional services for International Journal of Law in Context: Email alerts: Click here Subscriptions: Click here Commercial reprints: Click here Terms of use : Click here Transitional justice: (re)conceptualising the eld Christine Bell, Colm Campbell and Fionnuala Ní Aoláin International Journal of Law in Context / Volume 3 / Issue 02 / June 2007, pp 81 - 88 DOI: 10.1017/S1744552307002017, Published online: 06 September 2007 Link to this article: http://journals.cambridge.org/abstract_S1744552307002017 How to cite this article: Christine Bell, Colm Campbell and Fionnuala Ní Aoláin (2007). Transitional justice: (re) conceptualising the eld. International Journal of Law in Context, 3, pp 81-88 doi:10.1017/ S1744552307002017 Request Permissions : Click here Downloaded from http://journals.cambridge.org/IJC, IP address: 129.215.19.197 on 23 Sep 2013 http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 Foreword Transitional justice: (re)conceptualising the f ield Christine Bell, Colm Campbell and Fionnuala N� Aolþin Transitional Justice Institute, University of Ulster1 Transitional justice discourse is generally accepted as having its foundations located in the theore- tical, policy and practical implications of dealing with past human rights violations in societies that have experienced either repressive politics or violent conflict. Many theorists and policy-makers resolutely assume or defend the notion that ‘dealing with the past’ is where the debates about, and contribution of, the transitional justice paradigm uniquely lie.2 Understood in this way, transitional justice as a field of study has grown exponentially, comprising theoretical debates, the comparative assessment of domestic accountability schemes, international criminal justice, the study of truth commissions, and ethical-legal debate concerning the morality of compromise on accountability for gross and systematic violations of human rights. This foreword, building on the previous work of its authors,3 extends and expands our conten- tion that transitional justice in this narrow sense must be located in a broader and more problema- tised understanding of justice in contemporary transitions. We also use the opportunity provided by this symposium to highlight an expansion of conceptual horizons being carried out at the Transitional Justice Institute (University of Ulster), and the innovative approach to the transitional justice field being advanced by a group of diverse inter-disciplinary scholars. The approach advocates both drawing on other disciplines, and firmly supporting parallel disciplinary fields to work along- side a legal research agenda; affirming the importance of rigorous cross-jurisdictional comparisons; and utilising empirical and socio-legal methodology to advance legal inquiry. We affirm, as we have previously asserted, that transitional justice constitutes a field of inquiry that both affirms but also problematises the role of law in situations of societal change (Bell, Campbell and Nı́ Aoláin, 2004). We are not concerned to enter a debate that we view as essentially semantic, namely whether the term ‘transitional justice’ should be used primarily to communicate a narrow or broader meaning. Rather, we wish firmly to assert our vision of a continuum which extends from a narrow (past-focused) notion of ‘transitional justice’ to a broader consideration of the role of law in transitions (itself a subset of the question of justice in transition). From this perspective, it is clear that the legal frame of reference is only one dimension of a broader attempt at social and political change. This points to the underlying project on any ‘law in context’ exploration – to question the complexities of what it means to ‘normativise’ what could be seen (and indeed at the beginning of the 1990s were argued to be) questions for the realm of politics. We have suggested elsewhere that ‘transitional justice’ does not have an even meaning across contexts, as illustrated by the 1 We note our thanks to Catherine O’Rourke, Transitional Justice Institute, for research assistance in comple- ting this foreword and to Dr Shane Darcy for his oversight in bringing the work of this symposium to fruition. 2 See e.g. Bickford (2004): ‘Transitional Justice refers to a field of activity and inquiry focused on how societies address legacies of past human rights abuses, mass atrocity, or other forms of severe social trauma, including genocide or civil war, in order to build a more democratic, just or peaceful future.’ 3 This foreword also gives us a substantial opportunity to respond to critical probing of our analytical approach. See e.g. Hannum (2006). International Journal of Law in Context, 3,2 pp. 81–88 (2007) Cambridge University Press DOI: 10.1017/S1744552307002017 Printed in the United Kingdom http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 appropriation of the language of ‘transitional justice’ in pursuit of hegemonic legitimation in Iraq (Bell, Campbell and Nı́ Aoláin, 2007) (a point explored further below).4 Such minefields caution vigilance but not timidity as we proceed. 1. Transitional justice as dealing with the past We acknowledge that the field’s roots lie squarely in controversies over accountability, where in Koskenniemi’s (2002) terms the ‘ . . . universalisation of the Rule of Law [called] for the realization of criminal responsibility in the international as in the domestic sphere’. Transitional justice as the study of mechanisms focused on past abuses can be traced to the post-Second World War Nuremberg and Tokyo tribunals. In the 1980s and 1990s the field was reinvigorated and invested with new meaning as a response to the systematic human rights violations carried out by repressive Latin American states, the transitions in Eastern Europe, and peace negotiations in an ever-expanding list of ‘intra-state’ conflicts. Two trends can be identified in this latter period. The first was a rise in innovative Truth Commission-type mechanisms as a way of squaring accountability v. amnesty debates, that were characterised by being rooted in broad range of justice and social goals other than individual criminal accountability. These goals were implemented by de-legalised processes justified both in terms of pragmatic and principled arguments as more suitable to the outcomes sought.5 The second (apparently antithetical) trend was the rise in international criminal justice, evident in the establishment of the Yugoslav and Rwanda Tribunals and the Ad hoc Tribunal for Sierra Leone, and the institutionalisation of such initiatives in the creation of an International Criminal Court.6 The broader project of considering ‘justice in transition’ responds directly to the past-focused conception of transitional justice. We assert, first, that mechanisms for dealing with the past cannot be considered without locating them in the broader question of the connection between mechan- isms for the past and the broader constitutional frameworks that the methods are in service to. Viewed from the wider perspective of ‘constitutional meta-bargaining’,7 the role of law in dealing with the past appears contingent. This approach questions any idealisation of the end game of a narrowly delineated ‘transitional justice’ discourse, defined purely in terms of criminal accountabil- ity, lustration or state-building (including definitions resting upon such underlying theories as liberalisation or deterrence).8 Related to this is our second assertion that ‘past-focused’ mechanisms are in practice negotiated as merely one part of a transformation package. Meaningful societal change (of which accountability is likely to be a key part) requires the overhaul of political, legal and social institutions. Political trade-offs frequently occur across a variety of issues, with the result that the factors affecting which mechanism is put in place cannot be fully understood without appreciating their place in the overall package. 4 See also Bell and O’Rourke (2007), arguing in conclusion that the justice meaning of transitional justice varies from context to context. 5 For an exploration of the gender specific limitations of transitional accountability mechanisms, see Nı́ Aoláin and Turner (2007). 6 For a detailed overview of this genealogy, see Teitel (2003). 7 On meta-constitutionalism, see Walker (2002). 8 Koskenniemi (2002) has, inter alia, identified that: ‘ . . . studies on the transformations of authoritarian regimes into more or less liberal democracies . . . have suggested a more complex understanding of the role of criminal trials as not merely about punishment or retribution, not indeed about deterrence, but as aspects of a larger ‘‘transitional justice’’ .’ C H R I S T I N E B E L L , C O L M C A M P B E L L A N D F I O N N U A L A N Í A O L Á I N82 http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 2. From transitional justice to rule of law To some extent, recent developments relating to ‘transitional justice’ in its narrower sense have begun to affirm these types of connections. Most notably, in a policy context, the United Nations Secretary-General has recognised an organic relationship between ‘transitional justice’ and the rule of law (United Nations Secretary-General, 2004). This recognition has vital policy implications, signalling both the broad institutional appropriation of the term ‘transitional justice’, as well as the fact that it is fast becoming a by-word for a bundle of transformative efforts, mostly of a legal nature. That recognition has ignited a broader international policy conversation to which, we suggest, this theoretical re-mapping has an important contribution to make.9 While focus on the rule of law locates ‘transitional justice’ within a broader framework, it also prompts the question of ‘which concept of the rule of law?’ – and in particular whether a formal (procedural) or substantive (value-based) emphasis is to be preferred. If the former, then the programme of reform seems to be a technical bureaucratic one in which international organisations can play a seemingly uncontroversial role by assisting in rolling out reform of constitutionalised legal institutions: an independent judiciary, separation of powers, an impartial and accountable police force? However, if a more substantive articulation is preferred – or understood to be impli- cated in formal understandings of the rule of law – then the crucial question is: what values or whose values does it presuppose?10 Whether the ‘rule of law’ is to be understood in procedural or substantive terms, is essentially a philosophy of law debate. This very debate risks diverting attention from a key insight of the law and society movement: the well-documented capacity for law (even, or perhaps especially, in societies with an ideological commitment to the ‘rule of law’) to be an instrument of gender, ethnic, economic and class oppression. Moreover, transitions add new practical and conceptual complexity to long- standing rule of law debates. Transitions are typically situations in which the very concept of the rule of law appears to require rehabilitation precisely because it has operated as the chassis to which the vehicle of systemic human rights violations has been harnessed. The paradox arises because law as a tool of reform must itself be radicalised to function appropriately in the new dispensation. Domestic law’s hegemonic quality – its tendency to buttress powerful societal forces, make it an unreliable check on oppressive power even in settled societies, yet its ‘relative autonomy’ and its associated counter-hegemonic potential mean that it cannot entirely be dismissed as a vehicle for progressive societal change. The question of law’s capacity to deliver (or hinder) meaningful change in transitional societies is an open one, and must be considered part of a broad ‘transitional justice’ research agenda. At the very least, there needs to be an awareness that legalism, a focus on law’s normativity, and the imperative to frame questions in legal terms, may privilege elite understand- ings, and render invisible key issues affecting disenfranchised groups (Campbell, Nı́ Aoláin and Harvey, 2003). A broader understanding of law’s operation in societal transitions is likely to require an investigation of the deployment of law by disenfranchised social movements, an investigation that will need to involve disciplines other than law, and one that is likely to focus at least on much on law as a system of communication and on its instrumentality, as on its normativity. It is also likely to require cross-jurisdictional comparisons, not least because such comparisons offer a route to separ- ating the specificity of the local from recurring patterns in relation to the deployment of law. 9 See also Kritz (1996), who argues that: ‘The rule of law does not simply provide yet one more vehicle by which government can wield and abuse its awesome power; to the contrary, it establishes principles that constrain the power of government, oblige it to conduct itself according to a series of prescribed and publicly known rules.’ But cf. Paris (2004). 10 For a useful summary of different approaches to the rule of law that also illustrates some inevitable linkage between formal and substantive conceptions, see Craig (1997); see also Carothers (1998). T R A N S I T I O N A L J U S T I C E : ( R E ) C O N C E P T U A L I S I N G T H E F I E L D 83 http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 Transitional justice ‘from below’ demands exploration with at least as much urgency as that ‘from above’. Secondly, with their unique international/domestic ‘hybridity’ (Bell, 2006), transitions pose a particular ‘law in context’ question around what the context for understanding rule of law value- formation is, and in particular whether the frame of reference is an international one in which values are understood with reference to international standards, a domestic one located in domestic constitutional understandings, or one in which the meaning is constructed dialogically through on-going negotiation (either within the domestic sphere, or in a broader negotiation across both spheres). In the contemporary uni-multipolar world, this begs the question adverted to earlier, of the relationship between the world’s sole remaining superpower, international law, and transitional justice, with Iraq as the prime site of inquiry. In many respects the international law debate mirrors that in domestic law: international law is likely to accommodate itself to the exercise of hegemonic power (Campbell, 2005), and offers powerful legitimating potential, but some possibility for law- based challenge is likely to be present (Krisch, 2005), and international law is always likely to retain some ‘pull’, even on powerful states (Byers, 2003). This pull may be particularly strong in transitional societies where a context of conflict can no longer be invoked to justify departure from international standards. Equally, the intimate oversight relationship between international institutions and such societies creates powerful incentives for such state to ‘play ball’ (or be seen to) with international legal norms. In Iraq, the US has used past-focused transitional justice discourse to justify and underwrite the ‘de-Ba’athicisation’ processes, attempting at a subtle level to justify its own role as ‘democratiser’ rather than ‘occupier’. ‘The’ conflict (or the undemocratic era for which accountability is required) is thereby defined as the one that preceded and was ‘ended’ by its use of force (Bell, Campbell and Nı́ Aoláin, 2007). Prisoner ill-treatment in Abu-Ghraib, and other alleged abuses in Iraq fall outside this frame; to that extent, there is an attempt to employ ‘transitional justice’ both as a framing narrative that doubles as an instrument of hegemonic power. Whether the US will succeed or not in this attempt is an open question, one given particular salience by identifying Iraq as merely one site in a never-ending (and to that extent ‘ordinary’) ‘war on terror’. The complexity here is evident from the inter-connectedness of transitional justice with multiple and overlapping spheres of international law, as well as from its becoming knitted into the unsettled sphere of local law (which itself is reconfigured by external legal interface to ‘fit’ the transitional narrative being advanced).11 Recognition of the ambivalent role of domestic law in societal transitions must thus be an accom- panied by a appreciation of the ambivalent position occupied by transitional justice in the con- temporary world, particularly where it is yoked to the instrumental goals of the ‘war on terror’ (Teitel, 2003). 3. The symposium This symposium reflects some of the constitutive elements of this broadening and revisioning. It also reflects unique methodological strengths. These strengths include a broad inter-disciplinary approach to the analysis of transitional problems, a socio-legal dimension to conduct of legal inquiry, an affirmation of the value of doctrinal analysis in the transitional setting, an emphasis on mid-level theorising about legal institutions, norms and ‘messaging’, in order to probe their transformative capacity. 11 On global-local interface in transition, see Campbell and Fionnuala (2003). C H R I S T I N E B E L L , C O L M C A M P B E L L A N D F I O N N U A L A N Í A O L Á I N84 http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 So, for example, ‘dealing with past’ remains a core aspect of the transitional justice inquiry, but is given fresh vitality in the symposium. The contribution made by Kirk Simpson entitled Voices Silenced, Voices Rediscovered confirms the centrality of the past to the construction of legal and political futures, with its emphasis on the need to reclaim the ‘pre-language’ state which frequently obscures the ability of victims to contribute effectively to truth processes. Precisely because the analysis locates law within an anthropological understanding, it demonstrates the manner in which existing literature on voice and victims can be re-interpreted and reinvigorated by understanding law’s limits as a language. Venkat Iyer’s contribution to this symposium is concerned with the importance of constitutional structures and norms in the transitional phase. This emphasis on norm content, its institutional outworkings and constitutional configurations augment the contention we make that transitional justice is fundamentally concerned with the operation and rehabilitation of law in post conflict and repressive societies. Iyer’s assessment demonstrates the importance of the local/global interchange for enriching the transitional justice field. Complementing this approach is the contribution by McKeever and O’Rawe, who highlight the significance of institutional legal reform through a succinct assessment of the relationship between citizenship, policing and the role of ex-combatants in post-conflict societies. The essential quandary they address is framed by exploring the question of whether paramilitary ex-prisoners should be allowed to join the police force. The article affirms the broader linkage between transitional justice narrowly defined, with rule of law issues generally defined, as well as the concrete contribution that institutional change has for the success of the transitional project – particularly to those who have been excluded or marginalised in the prior dispensation. Finally, the work of Rooney and Reilly brings gender to the forefront of transitional justice explorations. Both contributions are grounded in the broad inter-disciplinary methods advocated in this foreword, and both attest to the strength of analysis that emerges when the role of law is interposed alongside rigorous feminist method. Rooney’s contribution tackles a key legal site of transitional justice – namely the peace agreement – and undertakes an ambitious interweaving of intersectionality theory with the presence or absence of women in such sites. The analysis again confirms the pivotal influence that legal frames have on outcomes, and the organic link between institutional decision-making sites with transformative outcomes. Reilly undertakes a critical con- sideration of dominant approaches to transitional justice, and probes what is necessary to achieve ‘justice’ for women in transitional context. Her extensive survey of international accountability mechanisms is notably informed by considering the merits of a ‘bottom up’ rather than ‘top down’ approach to gender accountability, and places significant emphasis on comparative knowledge as to the influence of transnational influences on processes which affect women. 4. Transition, justice and law What then are the elements that need to be developed in the broader conception of the field? (a) Understanding transition Transitions have been at the margins of traditional legal categories. Similar, for example, to legal doctrines of exceptionality, transitions often stood at the sidelines of legal and theoretical scholar- ship.12 This is no longer the case. The number and scale of societies experiencing transition from repression and/or conflict allied to the broader geo-political effects of instability and inter-dependence caused by it, and the growth of the international tribunal model, have meant that transitional justice 12 See Oren and Nı́ Aoláin (2006) for a detailed overview of the exception and its marginal place in legal scholarship historically. T R A N S I T I O N A L J U S T I C E : ( R E ) C O N C E P T U A L I S I N G T H E F I E L D 85 http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 has become an overarching legal and political mantle to accommodate, manage and prompt such change. One contemporary feature of the discourse is the blurring of definitional boundaries about what is ‘in’ and ‘out’ of the transitionary paradigm. This can be viewed either as a denial of the specificity of transitions from conflict (Posner and Vermeule, 2004), or as an attempt to unsettle established constitutional orders so as to radicalise and re-envision processes of democratic renewal.13 From this point of view, arguments about what constitutes ‘the field’ become difficult to separate from strategic instrumentalism regarding what that the assertion of ‘transitional justice’ as the frame of inquiry aims to achieve.14 But ambivalences identified above in the problematic contemporary employment of transitional justice discourse also manifest under this heading. Current ‘steady state’ transitional justice (evident in the creation of the International Criminal Court) may operate to universalise the exception. The concept may therefore be open to appropria- tion in an attempt to re-work mainstream understandings of international legal norms. What was viewed as a legal phenomenon associated with extraordinary post-conflict conditions now increas- ingly appears to be a reflection of ordinary times. This poses extra-ordinary challenges to the integrity of the field. (b) Understanding of justice It becomes evident that, in addition to the reframing we have outlined above, the conception of transitional justice implies that some understanding and even theory of ‘justice’ is either implicit or required. In this vein of analysis ‘justice’ often stands as a short-cut for ‘law’ or ‘legal’. Such an analysis is extremely loose analytically but has the advantage of providing a very large canvas – it is not limited to dealing with the past. Transitional justice on this understanding could broadly cover the role of law in situations of transition. Despite its ease we do not use this analytical shortcut. In our view, it holds two distinct disadvantages: first, it makes Transitional Justice essentially a game for lawyers. It eschews a broader inter-disciplinary capacity and ensures that political scientists, sociol- ogists, anthropologists and others are marginalised.15 Second, it glosses over some complex and relevant jurisprudential debates concerning the content of ‘justice’, and it gives no sense of the continuum of interface which we prompt reflection on in this foreword. A second approach is to view justice in the context of theories of justice. This is arguably where legal theory is now turning. It is unnecessary at this point to probe the array of justice theories on offer; suffice to say that there are a great variety of theoretical explorations of the concept of justice, many of which can usefully be explored in relation to the specifics of ‘transition’. Taking this approach has a number of advantages. Primarily, it opens the field to the broad and deep inter- disciplinary engagement that we suggest is critical to any expansive understanding of transitional justice. Importantly, transitional justice is then no longer narrowly confined to a lawyers’ discourse. Second, it takes the theoretical debates from the transitional context and forces their engagement with mainstream ‘justice’ scholarship. It also has a number of disadvantages. First, it tends to encourage a narrow competitive trade-off between differing theories of justice (my theory is ‘better’, or at least ‘bigger’ than yours), potentially focusing on philosophy of law quandaries to the neglect of socio-legal insights. Second, the emphasis on theory choice and fit tends to assume or defend, rather than interrogate the goals of transition. The way forward that we are traversing, as illustrated by this symposium, is one that first of all disaggregates the different points at which law ‘connects’ with transition adopting what can loosely 13 See Bell and O’Rourke (2007, pp. 42–4). Cf. Tully (1995). 14 Cf. Berman (2004); cf. also Bell, Campbell and Nı́ Aoláin (2007). 15 See Campbell, Gross and Nı́ Aoláin (2007) arguing for a deep inter-disciplinary approach to contemporary conflict-related legal problems; see also Campbell and Connolly (2006). C H R I S T I N E B E L L , C O L M C A M P B E L L A N D F I O N N U A L A N Í A O L Á I N86 http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 be called a ‘law in context’ approach to each one, that eschews any understanding of law as purely normative, or indeed as indistinguishable from politics.16 We have laid these points of connection as follows: . Understanding the role of law in conflict. . Law and Political institutions (constitutionalism). . Law and Legal institutions (‘rule of law’). . Dealing with the past (‘transitional justice’). . Gender issues (cross-cutting and also a discrete field of inquiry, and capable of expansion into a broader conception of all the ‘others’ seen as marginal to the violent conflict). . Law and social movements (transitional justice ‘from below’). Second, we attempt to understand the role of law in transitions by using (sometimes on their own, often together), a range of methodologies, so as to understand how law is conceived to apply or not apply in a positive sense, but to assist with understanding the role of law in context. These methodologies primarily include: . Legal doctrinal (focused around the lack of ‘fit’ between transition and traditional international legal doctrine). . Socio-legal and more broadly interdisciplinary (aiming to understand the role and limits of law within a contextualised understanding of its relationship to politics and other social processes); we affirm that this may involve analysis of both qualitative and quantitative empirical data. . Theoretical (theorising transition and justice, and their inclusions and exclusions). To put it boldly, we view study of ‘transition and justice’ as providing an important contribution to some of the deepest quandaries of law’s relationship to social change, well beyond the transitional context. Conclusion: (re)conceptualising the field In conclusion, we are pleased that this Special Issue of the Journal of Law in Context has afforded the opportunity for a selection of the diverse and inter-disciplinary research agenda of the Transitional Justice Institute to be drawn together and presented here. The range of scholarly interests, and the rare mix of legal and other disciplinary approaches to core transitional issues, illustrate precisely the themes that this foreword has sought to highlight; namely that the field of transitional justice has widened and deepened – that it is not the domain of lawyers alone – and that it is no longer solely probing accountability concerns. Rather, the field is now firmly engaged in a wider set of inquiries about the role of law in the process of societal change – and the interface and consequences that follow for what we understand law to be. References BELL, Christine (2006) ‘Peace Agreements: Their Nature and Legal Status’, American Journal of International Law 100: 373–412. BELL, Christine, CAMPBELL Colm and NÍ AOLÁIN, Fionnuala (2007) ‘The Battle for Transitional Justice: Hegemony, Iraq and International Law’, in John Morison et al. (eds.), Human Rights, Democracy and Transition: Essays in Honour of Stephen Livingstone. Oxford: Oxford University Press. 16 We note that these strengths are more widely reflected in the overall research outputs by a variety of scholars at the Transitional Justice Institute see http://www.transitionaljustice.ulster.ac.uk. T R A N S I T I O N A L J U S T I C E : ( R E ) C O N C E P T U A L I S I N G T H E F I E L D 87 http://journals.cambridge.org http://journals.cambridge.org Downloaded: 23 Sep 2013 IP address: 129.215.19.197 BELL, Christine, CAMPBELL Colm and NÍ AOLÁIN, Fionnuala (2004) ‘Justice Discourses in Transition’, Social and Legal Studies 13: 325–28. BELL, Christine and O’ROURKE, Catherine (2007) ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’, International Journal of Transitional Justice 1: 23–44. BERMAN, Neil (2004) ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’, Columbia Journal of International Law 43: 1–71. BICKFORD, Louis (2004) ‘Transitional Justice’, Encyclopedia of Genocide and Crimes Against Humanity 3: 1045–7. CAMPBELL, Colm, NÍ AOLÁIN, Fionnuala and HARVEY, Colin (2003), ‘The Frontiers of Legal Analysis: Re-Framing the transition in Northern Ireland’, Modern Law Review 66: 317–45. CAMPBELL, Colm (2005) ‘ ‘‘Wars on Terror’’ and Vicarious Hegemons: the UK, International Law and the Northern Ireland Conflict’, International and Comparative Law Quarterly 54: 321–55. CAMPBELL, Colm and CONNOLLY, Ita (2006) ‘Making War on Terror? Global Lessons from Northern Ireland’, Modern Law Review 69: 935–57. CAMPBELL, Colm, GROSS, Oren and NÍ AOLÁIN, Fionnuala (2007) ‘The Value of the Comparative and the International in Reflecting on State Reponses to the War on Terror’, Minnesota Journal of International Law (forthcoming). CAMPBELL, Colm and NI AOLÁIN, Fionnuala (2003) ‘Local Meets Global – Transitional Justice in Northern Ireland’, Fordham International Law Journal 24: 1201–23. CAROTHERS, Thomas (1998) ‘The Rule of Law Revival’, Foreign Affairs 77: 95–106. CRAIG, Paul (1997) ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, Public Law 33: 467–87. GROSS, Oren and NÍ AOLÁIN, Fionnuala (2006) Law in Times of Crisis Emergency Powers in Theory and Practice. Cambridge: Cambridge University Press. HANNUM, Hurst (2006) ‘Human Rights in Conflict Resolution: The Role of the Office of the High Commissioner for Human Rights in UN Peacemaking and Peacebuilding’, Human Rights Quarterly 28: 1–85. KOSKENNIEMI, Martti (2002) ‘Between Impunity and Show Trials,’ Max Planck Yearbook of United Nations Law 6: 1–35. KRISCH, Nico (2005) ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, European Journal of International Law 16: 369. KRITZ, Neil (ed.) (1996) Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Washington, DC: United States Institute of Peace, p. 588. NI AOLÁIN, Fionnuala and CAMPBELL, Colm (2005) ‘The Paradox of Democratic Transitions’, Human Rights Quarterly 27: 172–213. NÍ AOLÁIN, Fionnuala and TURNER, Catherine (2007) ‘Gender Truth and Transition’ UCLA Women’s Law Review 16: (forthcoming). PARIS, Roland (2004) At War’s End: Building Peace After Civil Conflict. Cambridge: Cambridge University Press. POSNER, Eric and VERMEULE, Adrienne (2004) ‘Transitional Justice as Ordinary Justice’, Harvard Law Review 117: 777–825. ROBERTS, Adam (2006) ‘Transformative Military Occupation: Applying the Law of War and Human Rights’, American Journal of International Law 100: 580–622. TEITEL, Ruti (2003) ‘Transitional Justice Genealogy’, Harvard Human Rights Journal 16: 69–94. TULLY, James (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. United Nations Secretary General (2004) Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (2004). WALKER, Neil (2002) ‘The Idea of Constitutional Pluralism’, Modern Law Review 65: 317–59. C H R I S T I N E B E L L , C O L M C A M P B E L L A N D F I O N N U A L A N Í A O L Á I N88 http://journals.cambridge.org << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles false /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Tags /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.0000 /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize false /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage false /PreserveDICMYKValues true /PreserveEPSInfo false /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Remove /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 400 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /Description << /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e9ad88d2891cf76845370524d53705237300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc9ad854c18cea76845370524d5370523786557406300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /DAN <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> /DEU <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> /ESP <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> /FRA <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> /ITA <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> /JPN <FEFF9ad854c18cea306a30d730ea30d730ec30b951fa529b7528002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b4f7f75283057307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a306b306f30d530a930f330c8306e57cb30818fbc307f304c5fc59808306730593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020ace0d488c9c80020c2dcd5d80020c778c1c4c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor prepress-afdrukken van hoge kwaliteit. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /PTB <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> /SUO <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> /SVE <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> /ENU (Use these settings to create Adobe PDF documents best suited for high-quality prepress printing. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToCMYK /DestinationProfileName () /DestinationProfileSelector /DocumentCMYK /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles false /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_raqcvx767ng4lgiu6qfio44qxi	----	Accepted refereed manuscript of: Jenkins K, McCauley DA, Heffron R, Stephan H & Rehner R (2016) Energy Justice: A Conceptual Review, Energy Research & Social Science, 11, pp. 174-182. DOI: 10.1016/j.erss.2015.10.004 © 2016, Elsevier. Licensed under the Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International http://creativecommons.org/licenses/by-nc-nd/4.0/ http://dx.doi.org/10.1016/j.erss.2015.10.004 http://creativecommons.org/licenses/by-nc-nd/4.0/ Energy Justice: A Conceptual Review Citation: Jenkins, Kirstin, McCauley, Darren, Heffron, Raphael, Stephan, Hannes, and Rehner, Robert (2016) “Energy Justice: A Conceptual Review”, Energy Research & Social Science, 11, pp. 174-182. Energy justice has emerged as a new crosscutting social science research agenda which seeks to apply justice principles to energy policy, energy production and systems, energy consumption, energy activism, energy security and climate change. A conceptual review is now required for the consolidation and logical extension of this field. Within this exploration, we give an account of its core tenets: distributional, recognition and procedural. Later we promote the application of this three-pronged approach across the energy system, within the global context of energy production and consumption. Thus, we offer both a conceptual review and a research agenda, providing suggestions of how the field of energy justice could be advanced. Throughout, we explore the key dimensions of this new agenda - its evaluative and normative reach – demonstrating that energy justice offers, firstly, an opportunity to explore where injustices occur, developing new processes of avoidance and remediation and recognizing new sections of society. Secondly, we illustrate that energy justice provides a new stimulating framework for bridging existing and future research on energy production and consumption when whole energy systems approaches are integrated into research designs. In conclusion, we suggest three areas for future research: investigating the non-activist origins of energy justice, engaging with economics, and uniting systems of production and consumption. Key Words: Energy justice; energy policy; whole energy systems; energy economics 1. Introduction Energy justice has recently emerged as a new cross-cutting social science research agenda, which seeks to apply justice principles to energy policy (McCauley et al. 2013), energy production and systems (Heffron and McCauley 2014), energy consumption (Hall 2013, Jenkins et al. 2014), energy activism (Fuller and McCauley 2015), energy security (Sovacool et al. 2013) and climate change (Bickerstaff et al. 2013, Sovacool 2013, Sovacool and Dworkin 2014). A conceptual review is now required for the consolidation and extension of this research agenda. With this in mind, this paper has two aims: firstly, sections 1-4 give a review of the literature to date and provide empirical examples of its applications, and secondly, section 5 promotes new directions for its development. Thus, we offer a conceptual review and a research agenda, both consolidating the existing literature and providing suggestions for how the field of energy justice might be advanced. Throughout, we approach energy justice from an inter-disciplinary perspective, involving insights from business, geography, political science, legal studies, philosophy, and environmental studies to reflect the backgrounds of the authors. Energy is a new centre of gravity for justice scholars. The ‘energy challenge’ is, of course, well documented. It can be summarized globally as resource scarcity and population growth in an increasingly unpredictable social and environmental climate. In a bid to explore and understand such phenomena, a range of conceptual frameworks have emerged. Each framework (which is inevitably contested) attracts a different emphasis on the content and purpose of energy research. Energy security assesses (a) the security of supply and production, and (b) emergent insecurities (such as availability and pricing) with a view to promoting the safeguarding of energy supply and ‘indigenous’ production capabilities (Ang et al. 2015, Mansson et al. 2014). Fuel poverty scrutinizes (a) energy vulnerabilities in communities in order to (i) shed light on distributional unfairness, and (ii) reduce such inequity with regards to a person’s ability to access and consume energy (Middlemiss and Gillard 2015). Energy justice, our focus throughout, evaluates (a) where injustices emerge, b) which affected sections of society are ignored, (c) which processes exist for their remediation in order to (i) reveal, and (ii) reduce such injustices. Sovacool (2014), in his review of current energy scholarship in the social sciences, identifies a need to move towards human-centred, social science explorations of energy developments. Sovacool identifies fourteen avenues of research and highlights the role of human-centred research methods and philosophy and ethics in energy studies. He promotes energy justice as a promising avenue for research, stating in particular because “energy justice … recognizes that energy needs to be included within the list of things we prize; how we distribute the benefits and burdens of energy systems is pre-eminently a concern for any society that aspires to be fair” (Sovacool 2014: 15). This raises questions about how the costs and benefits of energy production and consumption should be distributed; and about whether we are being “fair to future generations in leaving a legacy of nuclear waste, the depletion of fossil fuels and the pollution of the atmosphere and climate?” (ibid.). Whilst we do not seek to answer these questions directly, we situate this paper within such key debates in the fields of energy studies and social science and the growing application of human-centred approaches to energy challenges. Sovacool and Dworkin (2014) provide the most comprehensive account of philosophical approaches to energy justice to date. Within our exploration, however, we limit the philosophical groundings of energy justice to distributional, procedural and recognition-based tenets. We utilise the framework of Fuller and Bulkeley (2013) who focus on the application of distributional and procedural justice considerations in energy justice, based on the works of Rawls (1991), and, in line with McCauley et al. (2013), add to this a ‘recognition-based’ approach from the works of Fraser (1999, 2014). Within, we choose to present each tenet of justice in the following order: distribution, recognition, and procedure. We do so on the understanding that if injustice is to be tackled you must (a) identify the concern – distribution, (b) identify who it affects – recognition, and only then (c) identify strategies for remediation - procedure. Specifically, we explore the key dimensions of the new energy justice agenda - its evaluative and normative reach - where energy justice researchers both assess injustices and make recommendations on how they should be approached. Jordan and Lenschow (2010) similarly use this combined approach in their conceptual review of ‘environmental policy integration’ (EPI) as a new agenda in policy studies. As shown in Table 1 below, this approach allows the researcher to explore a number of agendas in relation to energy justice. INSERT TABLE 1 Distributional justice encourages researchers to investigate where energy injustices emerge in the world. The location of production facilities such as gas power stations has raised justice concerns among nearby communities (Endres 2009, Sicotte 2010). Simultaneously, studies of energy poverty have questioned the distributional burden of rising energy prices (Boardman 1991, 2013). In light of this, we use several empirical examples throughout this paper to demonstrate that energy justice seeks to explore both production and consumption. Recognition-based justice moves researchers to consider which sections of society are ignored or misrepresented. Production-oriented research has sought to expose the unfair location of power plants in the vicinity of ethnic minorities or indigenous peoples, often cut adrift from decision-making (Pastor et al. 2001). Consumption-based research has equally revealed the struggles of ageing or disabled populations (Boardman 2013, Liddell and Morris 2010). Here we explore the emergence of recognition-based justice through non-recognition and disrespect. Procedural justice inspires researchers to explore the ways in which decision- makers have sought to engage with communities. Warren and McFadyen (2010) demonstrate how fostering a sense of community ownership in wind farm development can create new processes of acceptance, for example. Thus, rather than classifying procedural injustices or unveiling mechanisms of exclusion as is classically the case (Gibson-Wood and Wakefield 2013), we consolidate and contribute to this literature by making explicit three mechanisms of inclusion: achieving just outcomes through local knowledge mobilization, greater information disclosure, and better institutional representation. Later we promote the application of this three-pronged approach throughout the energy system. This approach extends our exploration of distributional, procedural and recognition-based justice issues within the global context of energy production and consumption. We do so in a bid to not only describe the current literature and demonstrate its applicability, but also to advance the field of energy justice. Here, we further develop our understanding of “where” to our “what, who, and how” tenet framework. Exploring injustices throughout an energy system helps us to appreciate the multiple sites of injustice that can occur throughout global energy systems. Energy justice offers, firstly, an opportunity to develop new crosscutting social science agendas on exploring where injustices occur, developing new processes of avoidance and remediation, and recognizing new sections of society. It is therefore an agenda that inspires both evaluative accounts and normative solutions. Secondly, energy justice provides a new framework for bridging existing and future research on energy production and consumption. We begin our assessment of energy justice by exploring each of the tenets and their real-world applicability. 2. Distributional Justice Distributional justice recognises both the physically unequal allocation of environmental benefits and ills, and the uneven distribution of their associated responsibilities (Walker 2009). It assesses where “questions about the desirability of technologies in principle become entangled with issues that relate to specific localities” (Owens and Driffill 2008: 4414), and represents a call for the even distribution of benefits and ills on all members of society regardless of income, race, etc. As recognition that some resources are inescapably unevenly distributed (the location of wind resources, for example) such claims for justice require that evidence of inequality are combined with an argument for fair treatment (Eames and Hunt 2013). One avenue for empirical research, therefore, is to consider to what extent the siting of energy infrastructure is leading to distributional injustices. Distributional justice concerns not only the siting of infrastructure, but access to energy services too. From a consumption perspective, the fuel poverty agenda has revealed the uneven spread of burdens with regards to affordable access to energy services. In this regard, energy justice concerns both physical access to heating and electricity, and questions the extent of an individual’s freedoms, i.e. the extent of choice a person has over his/her life. We develop this notion below, giving the example of the Energiewende in Germany from both a production and consumption perspective as an illustrator of the tenet’s real-world applicability. In closing, we explore the notion that the re-distribution of benefits can enforce a sense of justice. 2.1 Distribution of ills for electricity consumers The current energy strategy transformation occurring in Germany, termed as the Energiewende, comes with a number of distributional justice implications. The Energiewende entails the decarbonisation of the German energy sector, as well as the removal of nuclear power from the energy mix. This strategy change comes with a shift towards increasingly decentralised production, and the gradual replacement of large-scale nuclear power plants and fossil electricity sources (though as a caveat, the success of this strategy remains to be seen as fossil fuel consumption has also not decreased in Germany as a result of the new German energy strategy, and new fossil fuel plants and mining operations continue to be built (Hanks and Richards 2015). Nevertheless, the German government has initiated this attempted transition through feed-in tariffs (FiTs). FiTs guarantee priority access and profitable electricity prices for producers of renewable electricity. The cost of the scheme (the so called EEG- Umlage) is transmitted to the electricity consumer who is then required to make an additional financial payment within their electricity bill. The resultant financial burden on lower income communities, who have to pay a relatively higher share of their total income for their energy costs and the additional EEG-Umlage, raises concerns of distributional justice. Additionally, an adapted electricity grid will be necessary to support the transport of decentralized and naturally volatile electricity supplies. Much of the electricity produced from renewable sources comes from wind turbines in the northern regions. Yet typically, the energy intensive industries are located in the south. Such an imbalance in supply and demand across the grid requires a complex and expensive process of rebalancing (Bundesnetzagentur 2014), including extensive networks of new transmission lines. In this regard, distributional justice also manifests as the physical siting of energy infrastructure. Bavaria, however, blocked the development of new grids as a result of public resistance to new power lines, resulting in proposals for electricity tariff zones within Germany, where southern regions may have to pay a premium for their electricity (Schultz 2015). Should the proposal of different tariff zones be realised, this will further aggravate the disproportional financial burden of the Energiewende on lower income clusters, introducing a regional dimension of distributional injustices in the southern states of the country. Here then, we demonstrate the complexity of balancing the allocation of environmental benefits and ills – whether they’re physical or financial - in real-world terms. 2.2 Re-distribution of benefits The philosopher David Hume reminds us that “justice is a conventional device for preserving social order by settling disputes between individuals who are making incompatible claims on…scarce resources” (in Campbell 2010). People receiving less than others, for example, portrays the unequal distribution and access to energy through both financial and physical means. Hume further suggests, however, that justice has to do with the distribution of benefits as well as burdens. One research agenda in this area thus involves an investigation of the unfair spread of benefits, and their role in creating injustices. Here, we briefly explore the notion that the re- distribution of benefits can enforce senses of justice, thereby evidencing energy justice’s normative contribution. Developing the example above, the Energiewende can be seen to address distributional injustices in terms of benefits. Firstly, as about half of the nuclear capacity in Germany is already offline, with the remainder is to follow in 2022, the risk of a nuclear incident to the surrounding area is decreased. Given nuclear’s replacement with renewable sources, this arguably contributes to a more just distribution of risks from electricity generation. Secondly, the Energiewende, with its decentralised production capacity and increased infrastructure, will affect larger proportions of the population when compared to a centralised solution. While an increase in infrastructure might be perceived negatively, the burdens of the Energiewende are also distributed more evenly across the population. Thirdly, FiTs are designed to attract a broad range of contributors to the Energiewende, from the public as well as from businesses outside the ‘big four’ in Germany. As of 2010 only 6.5% of renewable capacity in Germany was owned by the ‘big four’, while 40% is owned by private individuals, 14% by project managers, 11% by banks and funds, 10% by farmers and 9% by businesses (Strunz 2014). This reveals the potential positive distributional justice effects with regards to the benefits of the Energiewende and highlights potential framings through which distributional justice issues can be approached. 3. Recognition Justice Recognition justice is more than mere tolerance and states that individuals must be fairly represented, that they must be free from physical threats and that they must be offered complete and equal political rights (Schlosberg 2003). A lack of recognition can occur as various forms of cultural and political domination, insults, degradation and devaluation. It may manifest itself not only as a failure to recognise, but also as misrecognising—a distortion of people’s views that may appear demeaning or contemptible (Schlosberg 2003). Thus, it includes calls to acknowledge the divergent perspectives rooted in social, cultural, ethnic, racial and gender differences (Fraser 1999, Schlosberg 2003). In including a recognition perspective, we acknowledge the work of McCauley et al. (2013) who explicitly mention recognition justice as a third tenet of energy justice. We place it in second place, however, on the grounds of our “what, who and how” approach outlined above. Fraser (1999) identifies three main categories of misrecognition: cultural domination, non-recognition, and disrespect. Here, we focus on the latter two aspects as indicative examples of its real-world manifestation, using illustrative UK examples. 3.1 Injustice as Non-recognition Non-recognition has been evident in the UK’s policy on ‘fuel poverty’. Policy- makers in England, Wales, and Scotland have only recently begun to recognise the specific needs of particular social groups—such as the elderly, the infirm, and the chronically ill—and their reliance on higher-than-average room temperatures (Walker and Day 2012). This shift counteracts a long-standing tendency to stereotype the “energy poor” and their “inefficient” use of scarce energy and monetary resources. Government-sponsored programmes have typically treated the “energy poor” as suffering from a “knowledge deficit”, with initiatives focussed on the provision of objective information, economic subsidies and other incentives for increasing the energy efficiency of the housing stock and electrical appliances. Yet hardly any attempts were made to discover the motivations behind consumption patterns or to engage with their interpretation of energy-related issues, and what kind of improvements and strategies they would envision (Catney et al. 2013). This failure to recognise specific groups not only creates injustice, but may also lead to the loss of potentially beneficial knowledge, values and stories, as we lose the insights of marginalized social groups (see section 4.1 below). 3.2. Injustice as Misrecognition and Disrespect The emergence of organised misrecognition and disrespect can be illustrated in connection to siting decisions for renewable energy generation in the UK. Developers and investors often deride local campaigns against wind farms as ‘not-in- my-backyard’ (NIMBY) protests by self-interested and misinformed individuals. This is accompanied by an implicit reliance on the ‘deficit model’, which regards citizens as ‘empty vessels’ in need of factually accurate information (Catney et al. 2013; Burningham et al. 2015). However, there is little systematic evidence that the top- down provision of information – for instance about economic benefits, climate mitigation, moderate noise levels – changes opinions in the short term (Gardner and Stern, 2002). Further, limited effectiveness of information campaigns and promises of economic benefits for local communities (jobs, annual monetary dividends) often leads wind farm developers to believe that local people’s knowledge is not merely ‘insufficient’ but also ‘incorrect’ (Burningham et al. 2015: 251). This perception is especially acute when it comes to supposedly irrational objections that cannot easily be countered with scientific and technical arguments – such as wind turbines’ aesthetic impact on the landscape, or distrust of a project’s corporate financiers and beneficiaries. Equipped with public opinion surveys showing support for wind energy (in general), developers typically assume that the “social gap” (Bell et al. 2013) between global/national and local perceptions is ultimately rooted in the NIMBY phenomenon. This unreflective use of this label tars all critics with the same broad brush of “selfishness, conservatism and ignorance” (Graham and Rudolph 2014: 144), contrasting unfavourably with the depiction of wind power developments as a ‘civic good’. This strategy of delegitimising local protest risks undermining attempts at open-minded discussion and compromise. It also fails to recognise the sincerity of many concerns voiced by local opponents. When framed in distributive or procedural terms, these interests are often altruistic (for the good of the broader local community) and based on demands for fair and respectful treatment (Gormally et al. 2014). They are also frequently based on context-specific emotions and values related to place attachment, aesthetic criteria and cultural identity (Devine-Wright 2009; Murphy 2013). 3.3. The Isle of Lewis Example The flaws of an approach based on non-recognition, misrecognition and disrespect have been evident on the Isle of Lewis in northwest Scotland. In April 2008, the Scottish government declined permission for a 181 turbine, 1,000 MW project on the island; a scheme which would have delivered up to £6m annually in financial benefits (over 20 years), of which £2m would have accrued directly to local residents (Carrell 2008). An overwhelming majority of islanders spoke out against the proposal, but given the island’s fragile economy and reliance on government subsidies, there were equally influential backers from local government and the business sector. Local opposition groups raised various economic, political, and environmental objections within which cultural identity was a distinctive undercurrent. Some of the cultural arguments reflected historical grievances about the Highland Clearances, unjust patterns of land ownership, and the continuing need to “stake a claim and to fight for the land” (Murphy and Smith 2013: 700). These narratives highlighted a potentially skewed distribution of benefits and expressed a distrust of large energy corporations and other outside interests. Of even greater significance were expressions of place identity and attachment. The peat moorland of Lewis is not merely a delicate ecological habitat which would be disturbed by road-building and concrete foundations for wind turbines. In the minds of many islanders, the moorland is also an integral part of their cultural identity – in stark contrast to the “barren wasteland” imagined by the developers (Murphy and Smith 2013: 699). A “lack of awareness and sensitivity” (ibid. 703) among wind farm developers to this ‘cultural rationality’ (Barry et al. 2008) meant that non-recognition was rife. Subsequent developments on Lewis vindicated the significance of cultural arguments, alongside distributive and procedural concerns. Instead of relying on external developers, a group of local community member bought a large privately owned estate and established the Urras Energy Society. Relying on existing roads and carefully selected turbine sites, the new community-owned wind farm’s capacity is a small fraction of the original proposal, but will nonetheless generate considerable financial benefits (Bunting 2015). This demonstrates that fostering a sense of community ownership in wind farm development can offer an effective tool for creating new processes of acceptance (Warren and McFadyen 2010). Furthermore, it suggests that neither knowledge deficits nor NIMBY tendencies represented insurmountable obstacles. Recognition and respect allowed for compromises and solutions that were perceived as just and legitimate. Yet there is room to further explore the spatialities of recognition as acknowledgment that such issues do not just play out at a local scale. Barry et al. (2008: 93) highlight that anti-wind campaigns are often undermined by their failure to concretely outline their favoured alternatives for the transition to a post-carbon economy: how, in effect, they would “do their bit” to shoulder the costs of tackling this global issue. Indeed, recent psychological studies “of empathy and its relation to altruism indicate that we also tend to empathise more with those whose problems are immediate for us” (Slote 2010). Globally, individuals seem to respond more to issues in their immediacy, distancing themselves from an invisible plight that they only know of only through description. Similarly, individuals also respond more to the ‘clear and present’ danger faced by miners that we hear are trapped underground, for example, than to dangers that will arise in the indefinite future (Slote 2010). To do so, however, highlights the possible contradiction of justice in the short-term and moral obligations over potentially longer timescales and the challenge of recognising international groups. A whole systems approach to energy justice may prove fruitful in this regard: a concept we discuss in section 5, below. 4. Procedural Justice Procedural justice concerns access to decision-making processes that govern the distributions outlined above. It manifests as a call for equitable procedures that engage all stakeholders in a non-discriminatory way (Walker 2009; Bullard 2005) and has become synonymous with politically excluded civil rights movements across North America (Gibson-Wood and Wakefield 2013). It has been thereafter applied to class (Taylor 2000), gender (Buckingham and Kulcur 2009) and religion (Schlosberg and Carruthers 2010). Procedural justice is underpinned by access to and pressure from multi-level legal systems (Walker and Day 2012). It is also driven by softer non- regulatory influences such as practices, norms, values and behaviours (Hall 2013). Rather than classifying procedural injustices or unveiling mechanisms of exclusion (Gibson-Wood and Wakefield 2013), we contribute to this literature by making explicit three mechanisms of inclusion designed to achieve just outcomes through local knowledge mobilization, greater information disclosure, and better institutional representation. In so doing, we demonstrate both the evaluative and normative reach of energy justice, providing, in this case, suggestions of mechanisms for remediation. We do so using the example of the Sami people in Norway, household energy consumption disclosure and gender representation in energy companies. 4.1 Mobilizing local knowledge Local knowledge has been a critical motivating factor raised in the literature for seeking the inclusion and engagement of affected publics. The notion is most closely linked to indigenous peoples. This pattern of overlooking indigenous knowledge on the environment emerges within several energy contexts to the detriment of communities and the sustainability of decision-making. Local communities, such as the indigenous Sami people, are scattered across mostly the northern parts of Norway, Sweden, Finland and Russia (all Arctic states) and are living off fishing and reindeer herding. Thus such communities are heavily dependent on the local ecosystems. Early intervention is paramount to an effective consultation process, and thus the engagement of local communities is an imperative with regards to procedural justice aspects. The most recent examples of where knowledge was mobilized have involved wind farms. A proposed development by Finnmark Kraft AS in the predominantly Sami county of Finnmark threatened to disrupt reindeer populations. The developer sought guidance on location and speed of construction from the Sami people through the Sami Council (McCauley et al. 2015). Procedural justice is therefore more than simply inclusion. It involves also the mobilization of local knowledge. Local knowledge mobilization is equally critical outside indigenous contexts. Critical knowledge, from this perspective, is less considered as resulting from livelihoods or from an inherent sensitivity to ecosystems built up across several decades. It is rather cultivated by scientists in a plethora of non- or quasi-state organisations. Davies (2006) reveals, for example, how the Galway Safe Waste Alliance in Ireland amassed local health and geophysical data in an attempt to resist the expansion of energy-from-waste. For energy justice scholars, such literature reminds us that effective participation does not necessarily mean physical involvement in decision-making. The inclusion of knowledge, discourse and stories in our decisions can make a significant impact on policies. 4.2 Disclosing information Procedural justice requires meaningful participation as well as impartiality and full information disclosure by government and industry (Davies 2006) and appropriate and sympathetic engagement mechanisms (Todd and Zografos 2005). In this context, for example, it is notable that many governments put public consultation at the centre of energy strategy and environmental decision-making. There is, however, the issue of full information disclosure. This can take the form of both state induced or voluntary disclosure, with varying levels of effectiveness in both cases (see Matisoff 2013). At a global level, information disclosure can be a driver for encouraging more ethical (Hall 2013) and sustainable (Hobson 2006) consumption practices as well as for a society’s choice of energy production (Schwanitz et al. 2014). It can also act as a means of recourse when a community is faced with a given injustice (Walker and Day 2012). Information disclosure on household energy consumption patterns (i.e. a form of local knowledge mobilization) is emerging as a procedural mechanism for tackling distributive injustices. Delmas et al. (2013) identify three types of information disclosure strategies instigated by a range of governmental and non-state actors in the household through a meta-analysis of energy conservation behaviour between 1975 and 2012. Each strategy is increasingly targeted at low-income areas. Low-level information dissemination aims, firstly, to provide hints and tips on reducing energy consumption. Individual householders can, secondly, provide their own usage feedback to authorities, upon reflection of past usage or in some instances usage patterns of their peers. The more effective strategy involved high level information interventions where, for example, lengthy home audits were implemented. Coupled with real-time information feedback loops and interactive smart grid development (Naus et al. 2014), these strategies can assist in encouraging more sustainable practices, and inclusion of householders in resolving distributive injustices. 4.3 Representation in Institutions Unequal representation in a wide range of institutions including business, local, national and international governmental bodies, as well as non-state actors has an impact on the decisions made (EHRC 2014, 2011, 2010). Gender and ethnic minority inequalities have long been observed in governing bodies. A survey conducted in 2010 across politics, business, voluntary and media sectors of UK society found that women were “seriously under-represented in all forms of leadership positions” (EHRC 2011: 8). A different survey in 2013 revealed a similar conclusion with regards to minority representation (EHRC 2010). Pulido (2000: 15) refers to this situation as “white privilege”, whereby “hegemonic structures, practices and ideologies reproduce whites’ privileged status”. Pellow and Brulle (2005: 298) have argued environmental justice scholars need to appreciate the larger “social dynamics of the social production of inequality”. Energy justice scholarship must also explore, and challenge, institutional misrepresentation as a motor for unjust energy decisions. A focus on energy companies reinforces this gender imbalance. Carlsson- Kanyama et al. (2010) found that 64% of 464 energy companies surveyed in Germany, Spain and Sweden had no woman at all in boards or management groups. A consultancy firm undertook a similarly wide-ranging survey of energy companies’ boards and executive teams on the Fortune 250 (RRA 2013). Its headline figure revealed 84% white male in contrast to black, Hispanic, Asian and female representations. Moreover, it reinforced such proportions widened further for smaller companies. Figures are starker still in the oil and gas industry despite efforts to implement diversity policies. BP revealed in a survey with 3,000 oil and gas professionals that 72% believed the industry remained ‘male’ and ‘white’ dominated, with notable geographical variation and some case studies of improving gender and minority representations in the results (BP 2013). Ensuring better representation in such institutions offers a more proactive approach to achieving justice, rather than depending upon the response of affected communities to injustice (Buckingham and Kulcur 2009). 5. Energy Systems and Justice The challenge of energy justice is to apply this three-pronged approach to energy policy across the whole energy system. Energy policy often deals with only one section of the energy system to the detriment of its overall effectiveness. Thus, more pronounced “systems” thinking is needed. In this regard, we advocate for a combination of the social science account of energy (policy) with its natural science counterpart (systems). This approach provides a more nuanced understanding of justice concerns through the exploration of distributional, procedural and recognition based justice issues within the context of both energy production and consumption, questioning where, across a global scale, our injustices lie (Heffron and McCauley 2014: 435). The need for this stems from perceived and realized failures in energy systems governance (Gagnon et al., 2002). Florini and Sovacool (2009) draw attention, for example, to gaps in the international system’s ability to manage energy’s externalities and secure a transition to low-carbon sources. Our current approach, where we focus on production and consumption as distinct outcomes of energy provision, means that typically, our supply is governed through piecemeal, ad-hoc responses (Florini and Sovacool 2009). This neglects attention to justice concerns throughout the system, including at the stages of resource mining, transmission and waste. 5.1 Production and consumption dichotomy To date, literature in the field of energy justice has focused on the production and consumption of energy as distinct fields of concern. Walker and Day (2012: 69), for example, use the three-tenet framework in an evaluation of fuel poverty, exploring “how justice is made sense of in real world contexts” with regards to energy consumption. Hall (2013) promotes a synthesis of the energy justice and ethical consumption literatures in a bid to explore new avenues for theoretical development and empirical investigations of in both fields. Yet Hall (2013: 424) also acknowledges that “production, consumption and population are not independent variables, and that issues of production are inextricably connected to consumption when considering energy justice in the distribution of energy services”. In support of this notion, we advocate energy justice as a framework for bridging research on energy production and consumption. We promote therefore more pronounced systems thinking as a means of capturing the true social nature of an energy form. In this regard energy policy needs to address "the unequal distribution of ills" throughout the energy system from decisions on infrastructure siting, (e.g. mines, wind farms, nuclear waste facilities, etc.), subsidies (e.g. renewables, nuclear energy), pricing (e.g. fuel poverty) and consumption indicators (e.g. smart meters) within the context of local and global pressures (McCauley et al. 2013). 5.2 Whole energy systems New perspectives and research are needed to understand the complex relationship between the global transformation of social and natural systems (Biermann and Gupta, 2011; Biermann, 2012; Dryzek and Stevenson 2011). Here we propose whole- systems as a tool. A whole-systems approach involves identifying the characteristics of the system question - its elements, interconnections and overall function - and examining the interactions between them (Meadows 2009). The energy system is defined as the entire energy chain, from mining, conversion, production, transmission, and distribution, right through to energy consumption and waste, and exists to fulfil the goal of energy production from a variety of sources (Bevier 2009; Alanne and Saari 2006; Gagnon et al. 2002). Such systems are taken as both material in terms of their physical infrastructures and social in nature, as recognition that technologies are intertwined with user practice, life styles, value changes and organisations (Markard et al. 2012; Whitmarsh 2012; Kern and Smith 2008). In line with Goldthau and Sovacool (2012: 233) then, we refer to “energy” as a socio-technical system that includes traditionally overlooked elements of the fuel cycle such as coalmines and oil wells in addition to the institutions and agencies that manage the system. Meadows (2009) highlights the tendency to break our systems into small and understandable pieces, yet such an ad-hoc, often national-scale policy approach can be detrimental. Some of our “solutions” both cause and fail to recognise widespread externalities or negate the impacts of uranium mining on the environment and human health, for example (Florini and Sovacool 2009; Sovacool et al. 2013). In taking a systems approach, we seek to acknowledge such externalities in the decision-making process, as recognition of energy’s far-reaching social, economic and environmental impacts (Stagl 2006: 53). Furthermore, such an approach aims to identify, and where possible prevent, problems that can arise from otherwise unseen or unintended consequences by shifting the scale of focus to a global “bigger picture” (Adams et al. 2013: 94). This concept builds to the idea that by bringing greater awareness of human needs and actions it is possible to improve the system overall (Bevier 2009: 202). 5.3 The nuclear example The UK government is embarking upon the largest nuclear energy program in Europe, with plans for 10 new reactors at 5 different sites (Bickerstaff, 2008; Heffron 2013a); a move that reflects the national desire for energy independence and a low-carbon transition (Florini and Sovacool 2009; DECC 2011). However, the UK has experienced widespread opposition to nuclear development and local objection to the siting of new reactors (Bikerstaff 2008). Thus, as part of this drive UK policy has been drafted to draw attention to issues of social inclusion. Stagl (2006) notes, for example, that with increasing emphasis on public participation governments tend to take more consideration of the opinions of the public on electricity generation techniques. The UK Government, prior to the publication of their Energy White Papers, undertakes public consultation, including survey-based consultation, focus groups and deliberative workshops (Stagl 2006). Despite some criticism, such consultation attempts show some attention to justice concepts at a national level (indirectly representing issues of distribution, recognition and procedure). Yet they fail to acknowledge justice manifestations in their systems context, including the upstream impacts of uranium mining and the downstream externality of nuclear waste (Sovacool and Dworkin 2014); albeit nearly all energy sources fail to account for down-and upstream externalities, so nuclear energy is no exception. To do so, however, regards the decision-making community as homogenous, and neglects the idea that injustices at one scale do not necessarily translate across others (Bickerstaff and Agyeman 2009; Heynen, 2003). Inescapably, issues of nuclear justice do not always exist within the bounds of these geographical areas and therefore cannot be dealt with by national governments or local stakeholders alone (Hofmeester et al. 2012). Take, for example, uranium mining. Most prevalent in Australia and Canada, though with increasing input from Kazakhstan, uranium mining commonly occurs on lands owned by indigenous and tribal people (Karlsson 2009; Conway 2013). In such communities, the need to work with minority communities to overcome environmental injustices is widely acknowledged (Martinez-Alier 2001). This includes, for example, damage to human health and the local environment, poor economic compensation, and concerns over sovereignty and indigenous rights (Karlsson 2009; Sovacool et al, 2013). Yet this is neglected from UK policy and UK assessments of nuclear energy’s viability despite the policy’s obvious knock-on effects. This does, in effect, fail to represent nuclear’s true justice nature. Many authors argue, therefore, for a multi-scalar focus; an acknowledgement, according to Holifield, Porter and Walker (2009: 4), that “place- specific policies and practices can have consequences that cross national boundaries, affect multiple scales, and extend across global networks”. This includes recognition too, of nuclear’s intergenerational justice implications, as acknowledgement of its waste legacy and dependence on finite uranium (Taebi, Roeser and Poel 2012). We seek to demonstrate that current parochial policy approaches often fail to acknowledge system-wide implications and as such, do not acknowledge all relevant systems actors. Yet by taking a whole-systems approach to energy justice, numerous other considerations, and arguably potential solutions to our energy challenges become apparent. This approach may lead to a radical appraisal of energy sources, with appropriate emphasis being given to the justice benefits or dis-benefits of differing sources. Previous work in this area (Heffron and McCauley 2014: 435) suggested that such a system-wide focus had two implications: 1) it allowed the energy technology to be valued at full cost, and 2) that this valuation would affect whether it is chosen as an energy source, influencing energy security. In addition, we have demonstrated that the whole-systems framework draws attention to different actors of concern and most pertinently, different scales of justice, providing a global account of energy’s impact. In so doing, it provides a focus, which is not restricted to a particular technology, application, location and point in time (Stagl 2006; Adams et al. 2013: 93). 6. Conclusion: Achieving Energy Justice As Hall (2013: 434) has noted, we should “widen the scope of energy justice…to dislodge debates from where they currently stand…towards a more nuanced understanding of energy”. Energy justice provides numerous insights in this regard. Throughout, this paper had two aims: Firstly, sections 1-4 gave a review of the literature to date and provided empirical examples of its applications. Secondly, section 5 promoted a new direction for its development: energy systems justice. Thus, we have sought to offer both a conceptual review and a research agenda, providing suggestions of how the field of energy justice could be advanced. Within, we chose to present each tenet of justice in the following order: distribution, recognition, and procedure. We did so on the understanding that if injustice is to be tackled, one must (a) identify the concern – distribution, (b) identify who it affects – recognition, and only then (c) identify strategies for remediation - procedure. In essence, addressing “what, who and how”. Our review has demonstrated two core contributions. Firstly, energy justice provides the opportunity to explore where injustices occur, to recognize new sections of society and to develop new processes of avoidance and remediation. It is therefore an agenda that inspires both evaluative accounts and normative solutions. Throughout this review we have characterised injustices - including, for example, those around the Energiewende in Germany (section 2.1), wind power developments on Lewis (section 3.3), gender and ethnic minority imbalances in governing bodies (section 4.3) - and proposed methods of remediation. These include, but are by no means limited to, redistributing benefits (section 2.2), acknowledgement of non-recognised and disrespected social groups (section 3.3) and local knowledge mobilization, greater information disclosure, better institutional representation (section 4.1-4.3). We illustrate within that energy justice has both a role in academic discourse and policy. Secondly, energy justice provides a new framework for bridging existing and future research on energy production and consumption, both of which can subscribe to the common goal of achieving just energy-based processes and outcomes. Indeed, our promotion of a whole systems approach to energy justice demonstrates that energy justice can provide a global account of energy’s social, economic, and environmental impacts, as we assess the multiple sites of injustice that can occur throughout global energy systems. However, energy justice currently remains at an embryonic stage. In brief, we would therefore like to propose several avenues for further research. In light of the activist origins of environmental and climate justice, we invite scholars to investigate why the energy justice movement is seemingly mute in comparison. Secondly, this lack of an anti-establishment past opens the door for significant contributions to mainstream policy-making: thus we would encourage engagement with the field of economics. Finally, the necessary reflection on ‘energy’ demanded by the concept provides an opportunity to unite systems of production and consumption. We add, in closing, the need to integrate both the consideration of past injustices, which may highlight both compensatory claims and important lessons, and future injustices, such as intergenerational concerns. We do so to acknowledge that energy justice is pluralist; that is not restricted to a particular technology, application, location or point in time (Stagl 2006; Adams et al. 2013: 93). We look forward to the continued development of the field. Word count: 8,877 Acknowledgements The authors would like to thank the ESRC, EPSRC and Carnegie for funding our work in this area, which has allowed us to conceptually reflect individually and collectively on the notion of energy justice. In terms of individuals, we would like to particularly thank Dr. Sara Fuller (Macquarie Sydney) and Roman Sidortsov (Cambridge) for their assistance in the development of this research agenda. References Adams C., Bell S., Taylor P., Alimisi V., Hutchinson G., Kumar A. and Turner BR., 2013, ‘Equity across borders: a whole-systems approach to micro-generation’. In Bickerstaff, J., Walker, G. and Bulkeley, H. (Eds.) (2013) Energy Justice in a Changing Climate: social equity and low-carbon energy. Zed Books. Alanne K. and Saari A., 2006, ‘Distributed Energy Generation and Sustainable Development’, Renewable and Sustainable Energy Reviews, 10(6), pp. 539- 558. Ang B., Choong W. and Ng T., 2015, ‘Energy Security: Definitions, Dimension and Indexes’, Renewable and Sustainable Energy Reviews, 42, pp. 1077-1093. Barry J., Geraint E. and Robinson C, 2008, ‘Cool Rationalities and Hot Air: A Rhetorical Approach to Understanding Debates on Renewable Energy’. Global Environmental Politics, 8(2), pp. 67-98. Bevier M., 2009, ‘Key Concepts in Governance’, Sage Publishing Limited. Bell D., Haggett C., Gray T. and Swaffield J., 2013, ‘Revisiting the “social gap”: public opinion and relations of power in the local politics of wind energy’, Environmental Politics, 22(1), pp. 115-135. Bickerstaff K., 2008, ‘Reframing nuclear power in the UK energy debate: nuclear power, climate change mitigation and radioactive waste’, Public Understanding of Science, 17, pp. 145-169. Bickerstaff K. and Agyeman J., 2009, ‘Assembling Justice Spaces: The Scalar Politics of Environmental Justice in North-east England’, Antipode, 41(4), pp. 781- 806. Bickerstaff K., Walker G. and Bulkeley H., 2013, ‘Introduction: making sense of energy justice’, in Bickerstaff K., Walker G. and Bulkeley H., Energy Justice in a Changing Climate, London, Zed Books, pp 1-13. Boardman B,, 1991, ‘From Cold Homes to Affordable Warmth’, London, Belhaven Press. Boardman B, 2013, ‘Fixing Fuel Poverty: Challenges and Solutions’, London, Routledge. British Petroleum (BP), 2013, ‘Global diversity and inclusion report’, London: Rigzone. Buckingham, S. and Kulcur, R., 2009, ‘Gendered Geographies of Environmental Injustice’, Antipode, 41 (4), pp.659-683. Bulkeley H. and Fuller S., 2012, ‘Low carbon communities and social justice’, JRF Viewpoint. York: Joseph Rowntree Foundation: 1-16. Bullard R., 2005, ‘Environmental Justice in the 21st Century’ in Dryzek J., and Schlosburg D, Debating the Earth, Oxford: Oxford University press,, pp.322– 356. Bundesnetzagentur, 2014, Monitorinbericht 2014 [Monitoring report 2014], German Federal Network Agency. Bunting M., 2015, ‘Renewable energy: How wind is changing the fortunes of Lewis islanders’, The Guardian, 12 February. Burningham K., Barnett J. and Walker G., 2015, “‘An Array of Deficits: Unpacking NIMBY Discourses in Wind Energy Developers’ Conceptualizations of Their Local Opponents”, Society and Natural Resources, 28, pp. 246-260. Campbell T., 2010, ‘Justice’. Palgrave Macmillan. Carlsson-Kanyama A., Ripa I. and Rohr U, 2010, ‘Unequal representation of women and men in energy company boards and management groups: Are there implications for mitigation?’, Energy Policy, 38(8), pp.4737-4740. Carrell S., 2008, ‘£500m project offers jobs and income, but will it devastate the environment?’, The Guardian, 04 February. Catney P., Dobson A., Hall S., Hards S., MacGregor S., Robinson Z., Omerod M. and Ross S., 2013, ‘Community Knowledge Networks: an action oriented approach to energy research’, Local Environment, 18(4), 506–520. Conway EJ., 2013, ‘The risk is in the relationship (not the country): Political risk management in the uranium industry in Kazakhstan’, Energy Policy, 56, pp. 201-209. Davies A., 2006, ‘Environmental justice as subtext or omission: Examining discourses of anti-incineration campaigns in Ireland’, Geoforum, 37, pp. 708- 724. DECC (Department of Energy and Climate Change), 2011, ‘The Carbon Plan: Delivering our Low Carbon Future’, London: Department of Energy and Climate Change. Delmas M., Fischlein M. and Asensio O., 2013, ‘Information strategies and energy conservation behavior’, Energy Policy, 61, pp. 729-739. Devine-Wright P., 2009, ‘Rethinking NIMBYism: the role of place attachment and place identity in explaining place-protective action’, Journal of Community and Applied Social Psychology, 19(6), pp. 426 – 441. Eames M. and Hunt M., 2013, ‘Energy Justice in Sustainability Transitions Research’. In Bickerstaff K., Walker G. and Bulkeley H., (Eds.), 2013. ‘Energy Justice in a Changing Climate: Social Equity and Low-carbon Energy’, Zed books, London. Endres D., 2009, ‘From wasteland to waste site: the role of discourse in nuclear power's environmental injustices’. Local Environment, 14, pp. 917-937. EHRC (Equality and Human Rights Commission), 2014, Appointments to Boards and Equality Law, London: EHRC. EHRC (Equality and Human Rights Commission), 2011, Sex and Power, London: EHRC. EHRC (Equality and Human Rights Commission), 2010, Pathways to Politics, London: EHRC. Florini A. and Sovacool KB., 2009, ‘Who Governs Energy? The Challenges Facing Global Energy Governance’, Energy Policy, 37, pp. 5239-5248. Fraser, N., 1999, Social justice in the age of identity politics: In Henderson G., Geographical Thought: A Praxis Perspective, London: Taylor and Francis, pp. 56–89. Fraser N., 2014, ‘Justice Interruptus’, London: Routledge... Fuller S. and McCauley, D., 2015, ‘Framing energy justice: perspectives from activism and advocacy’, Energy Research & Social Science, forthcoming. Fuller S. and Bulkeley H., 2013, ‘Changing countries, changing climates: achieving thermal comfort through adaptation in everyday activities’, Area, 45(1), pp. 63-69. Gardner GT. and Stern PC., 2002, ‘Environmental Problems and Human Behaviour’. Boston, Pearson. Gagnon L., Belanger C. and Uchiyama Y., 2002, ‘Life-cycle Assessment of Electricity Generation Options: The Status of Research in 2001’, Energy Policy, 30, pp. 1267-1278. Goldthau A. and Sovacool BK., 2012, ‘The uniqueness of the energy security, justice and governance problem’, Energy Policy, 41, pp. 232-240. Gibson-Wood H., and Wakefield S., 2013, ‘”Participation”, White Privilege and Environmental Justice: Understanding Environmentalism Among Hispanics in Toronto’, Antipode, 45(3), pp. 641-662. Gormally AM., Pooley CG., Whyatt JD. and Timmis RJ., 2014, ‘”They made gunpowder … yes down by the river there, that’s your energy source”: attitudes towards community renewable energy in Cumbria’, Local Environment, 19(8), pp. 915-932. Graham K. and Rudolph D., 2014, ‘Geography, Communities and Energy Futures: Alternative Research Paths’, Scottish Geographical Journal, 130(3), pp. 143- 151. Hall S., 2013, ‘Energy Justice and Ethical Consumption’, Local Environment, 18(4), pp.422-437. Hanks K and Richards J, 2015, ‘Let Them Eat Coal: Why the G7 Must Stop Burning Coal to Tackle Climate Change and Fight Hunger’. Oxfam Briefing Paper. Oxfam International. Heffron RJ., 2013(a), ‘The Application of Contrast Explanation to Energy Policy Research: UK Nuclear Energy Policy 2002-2012’, Energy Policy, 55, pp. 602- 616. Heffron, RJ., 2013(b), ‘Lessons for Nuclear New Build in the USA 1990-2010: A Three State Analysis’, Technology Forecasting and Social Change, 80(5), pp. 876-892. Heffron RJ, and McCauley D., 2014, ‘Achieving sustainable supply chains through energy justice’, Applied Energy, 123, pp. 435-437. Heynen, N., 2003, The scalar production of injustice within the urban forest, Antipode, 35, pp. 980-998. Hobson K., 2006, ‘Environmental psychology and the geographies of ethical and sustainable consumption: aligning, triangulating, challenging?’, Area, 38(3), pp.292–300. Hofmeester C., Bishop B., Stocker L. and Syme G., 2012, ‘Social cultural influences on current and future coastal governance’, Futures, 44, pp. 719-729. Holifield R., Porter M. and Walker W., 2009, ‘Introduction Spaces of Environmental Justice: Frameworks for Critical Engagement’, Antipode, 41(4), pp. 591-612. Jenkins K., McCauley D., Heffron R. and Stephan H., 2014, ‘Energy justice, a whole systems approach’, Queen’s Political Review. Jordan A. and Lenschow A., 2010, Environmental Policy Integration: State of the Art Review, Environmental Policy and Governance, 20, pp. 147-158. Karlsson GB., 2009, ‘Nuclear Lives: Uranium Mining, Indigenous Peoples, and Development in India’, Economic and Political Weekly, 44(34), pp. 43-49. Kern F. and Smith A., 2008, ‘Restructuring Energy Systems for Sustainability? Energy Transition Policy in the Netherlands’, Energy Policy, 36(11), pp. 4093-4103. Liddell C. and Morris C., 2010, ‘Fuel poverty and human health: a review of recent evidence’, Energy policy, 38(6), pp. 2987-2997. Mansson A., Johansson B and Nilsson L, 2014, ‘Assessing Energy Security: An Overview of Commonly Used Methodologies’. Energy, 73, pp.1-14 Matisoff D., 2013, ‘Different rays of sunlight: understanding information disclosure and carbon transparency’, Energy Policy, 55, pp. 579-592.. Martinez-Alier J., 2001, ‘Mining conflicts, environmental justice, and valuation’. Journal of Hazardous Material, 86, pp. 153-170. Markard J., Raven R., and Truffer B., 2012, ‘Sustainability transitions: An emerging field of research and its prospects’, Research Policy, 41, pp. 955-967. McCauley D, Rehner RWM., and Pavlenko M., 2015, ‘Assessing the Justice Implications of Energy Infrastructural Development in the Arctic’. In (Heffron R. J. and Little, G., editors)‘Delivering Energy Law and Policy in the EU and US’. Edinburgh University Press. McCauley D., Heffron R., Hannes S. and Jenkins K., 2013, ‘Advancing Energy Justice: The Triumvirate of Tenets’, International Energy Law Review, 32(3), pp. 107-110. Meadows D., 2009, ‘Thinking in systems: A primer’, London: Earthscan. Middlemiss L. and Gillard R., 2015, ‘Fuel Poverty from the Bottom-up’, Energy Research and Social Science, 6, pp. 146-15. Murphy J., 2013, ‘Place and exile: resource conflicts and sustainability in Gaelic Ireland and Scotland’. Local Environment, 18(7), pp. 801-816. Murphy J. and Smith A., 2013, ‘Understanding transition–periphery dynamics: renewable energy in the Highlands and Islands of Scotland’, Environment and Planning A, 45, pp. 691-709. Naus J., Spaargaren G., Vilet B. and Horst H., 2014, ‘Smart grids, information flows and emerging domestic energy practices’, Energy Policy, 68, pp.436-446. Owens S., and Driffill L., 2008, ‘How to Change Attitudes and Behaviours in the Context of Energy’, Energy Policy, 36, 4412–4418. Pastor M., Sadd J. and Hipp J., 2001, ‘Which Came First? Toxic Facilities, Minority Move‐in, and Environmental Justice’, Journal of Urban Affairs, 23(1), pp.1- 21. Pellow D., and Brulle R., 2005, Power, Justice, and the Environment, Cambridge: MIT Press. Rawls J., 1971 (1991 revised edition), ‘A Theory of Justice’, Cambridge: CUP. RRA (Russell Reynolds Associates), 2013, ‘Minority & Female Representation on Fortune 250 Boards & Executive Teams’. New York: RRA. Schlosberg, D., 2003, ‘The Justice of Environmental Justice: Reconciling Equity, Recognition, and Participation in a Political Movement’. In A. Light and A. De-Shalit, Moral and Political Reasoning in Environmental Practice London: MIT Press, pp.125–156. Schlosberg D., 2004, Reconceiving Environmental Justice: Global Movements And Political Theories, Environmental Politics, 13(3), pp. 517-540. Schlosberg D., 2013, Theorizing Environmental Justice: The Expanding Sphere of a Discourse, Environmental Politics, 22(1), pp. 37-55. Schlosberg D, and Carruthers, D., 2010, ‘Indigenous Struggles, Environmental Justice, and Community Capabilities’, Global Environmental Politics, 10(4), pp. 12-35. Schultz S., 2015, ‘Streit ums Energienetz: Süddeutschland muss höhere Strompreise fürchten [Disagreement about the electricity network: South of Germany has to fear higher electricity prices]. Spiegel Online [Online] Available from: http://www.spiegel.de/wirtschaft/soziales/stromtrassen- wirtschaftsministerium-droht-mit-preiszonen-a-1021947.html [Accessed 20th May 2015]. Schwanitz V., Piontek F., Bertram C. and Luderer G., 2014, ‘Long-term climate policy implications of phasing out fossil fuel subsidies’, Energy Policy, 67, pp. 882-894. Sicotte D., 2010, ‘Some more polluted than others: unequal cumulative industrial hazard burdens in the Philadelphia MSA, USA’, Local Environment, 15, pp. 761-774. Slote M., 2010, ‘Justice as a Virtue’, Stanford Encyclopaedia of Philosophy. Sovacool B., 2013, ‘Energy & Ethics: Justice and the Global Energy Challenge’, Palgrave Macmillan, Basingstoke. Sovacool BK, 2014, ‘What are we doing here? Analysing 15 years of energy scholarship and proposing a social science research agenda’. Energy Research and Social Science, 1, pp. 1-29. Sovacool BK. and Dworkin MH., 2014, ‘Global Energy Justice: Principles, Problems, and Practices’, Cambridge: CUP Sovacool BK., Sidortsov R. and Jones B., 2013, ‘Energy Security, Equality and Justice’, London: Routledge. Stagl S., 2006, ‘Multi-criteria Evaluation and Public Participation: The Case of UK Energy Policy’. Land Use Policy, 23, pp. 53-62. Strunz, S., 2014, ‘The German energy transition as a regime shift’, Ecological Economics, 100, pp. 150–158. Taebi G., Roeser S. and Poel I. van de, 2012, ‘The ethics of nuclear power: Social experiments, intergenerational justice, and emotions’, Energy Policy, 51, pp. 202-206. Taylor, DE., 2000, ‘The Rise of the Environmental Justice Paradigm’, American Behavioral Scientist, 43, 508-580. Todd H. and Zografos C., 2005, ‘Justice for the Environment: Developing an Indicator of Environmental Justice for Scotland’, Environmental Values, 13, pp. 483-501. Walker G., 2009, ‘Beyond Distribution and Proximity: Exploring the Multiple Spatialities of Environmental Justice’, Antipode, 41(4), pp. 614-636. Walker G. and Day R., 2012, ‘Fuel poverty as injustice: Integrating distribution, recognition and procedure in the struggle for affordable warmth’, Energy Policy, 49, pp. 69-75. Warren CR. and McFadyen M., 2010, ‘Does community ownership affect public attitudes to wind energy? A case study from south-west Scotland’, Land Use Policy, 27(2), pp. 204-213. Whitmarsh L., 2012, ‘How useful is the Multi-Level Perspective for transport and sustainability research?’, Journal of Transport Geography, 24(0), pp. 483-87. 
work_rautzhqixvarlgabilctorn7j4	----	Race and the Criminal Justice System: An overview to the complete statistics 2004–2005 Section 95 Criminal Justice Act 1991 Race and the Criminal Justice System: An overview to the complete statistics 2004–2005 March 2006 Section 95 Criminal Justice Act 1991 Race and the Criminal Justice System: An overview to the complete statistics 2004–2005 March 2006 ii Section 95 Statistics 2004/5 on Race and the Criminal Justice System (1) The Secretary of State shall in each year publish such information, as he considers expedient for the purpose of: (a) enabling persons engaged in the administration of justice to become aware of the financial implications of their decisions; or (b) facilitating the performance of such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground. (2) Publication under subsection (1) above shall be effected in such a manner, as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the persons concerned. This report was prepared by Batool Reza and Christine Magill and published by the Criminal Justice System Race Unit. Further copies are available from: Criminal Justice System Race Unit 2 Marsham Street London SW1P 4DF Email: CJSRACE@homeoffice.gsi.gov.uk This publication is available on the Home Office website http://www.homeoffice.gsi.gov.uk/rds © Crown copyright 2006 ISBN x xxxx xxxx Criminal Justice Act 1991 section 95 Section 95 Statistics 2004/5 on Race and the Criminal Justice System iii We, the Criminal Justice Ministers, are pleased to publish this update of the Overview to the Section 95 and CJS statistics. This report summarises the most recent statistics available on race and Criminal Justice and seeks to put in context what this reveals about BME groups’ experiences across the CJS. We want to build a society where there are equal opportunities for all. An essential part of this is for all those organisations responsible for delivering criminal justice to make sure they promote equality; do not discriminate against anyone because of their race; that the people who work for them are representative of the population; and that the system is effective in tackling racism and racist crime. We have made enormous progress in recent years strengthening the legal framework against discrimination, improving diversity training and toughening up our recruitment processes to make sure racists cannot get into CJS agencies, making the CJS more representative of the communities it serves; and improving how we investigate and prosecute hate crime. However we are not complacent and realise we still have a lot to do. These statistics show people from BME communities continue to be over- represented in the criminal justice process and are less likely than White people to be confident that the CJS will treat them fairly. Chapter six of this report outlines the variety of activities we are undertaking to continue to address inequalities. We believe the Overview Report and the Section 95 statistics are crucial measuring tools in moving towards an equitable Criminal Justice System. We will continue to encourage joint working between agencies and communities to deliver an impartial, fair and effective system to all. Secretary of State for Constitutional Affairs Attorney General Home Secretary Foreword by Ministers iv Section 95 Statistics 2004/5 on Race and the Criminal Justice System This report provides an overview of the key findings from the detailed publication Statistics on Race and the Criminal Justice System – 2005. It updates the summary of 2003/04 statistics published in February 20051, and looks specifically at what has changed and what has stayed the same. The data reported show that progress continues to be made in relation to the proportion of staff from Black and Minority Ethnic (BME) groups working in the Criminal Justice System (CJS). However, other areas remain largely unchanged with BME groups continuing to be disproportionately represented in the CJS. When interpreting the data, it is important to note that people from BME groups are often disadvantaged in social and economic terms compared to the White population. This disadvantage relates to factors such as housing, education and employment; factors that are in part predictive of offending behaviour and general involvement in the criminal justice process. Data concerning ethnicity and crime needs to be treated with extreme caution2 because the data may be inaccurate or missing altogether (as many crimes may be unreported or the ethnicity of the perpetrator unknown). However, evidence suggests that the imbalance is not simply the result of people from BME groups committing a disproportionate number of crimes.3,4 There is not, as yet, sufficiently robust data and evidence from which to reach definite conclusions as to the cause, or causes, of the disproportionate representation of BME groups observed in the data described. What is clear from the data is that disproportionality continues to be a key issue meriting further investigation. Main findings: Experience as users of the CJS ● The 2004/05 BCS shows that people from Mixed ethnic groups face significantly higher risks of crime than White people. However, there were no other statistically significant differences between people from different ethnic backgrounds. ● The 2004/05 BCS shows that people in BME groups were significantly more likely than White people to be worried about burglary, car crime and violent crime. Summary 1 Barclay et al (2005) Race and the Criminal Justice System: An overview to the complete statistics 2003/4. London. 2 Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman. 3 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 London: Home Office. 4 Aust, R, & Smith, N. (2003). Ethnicity and drug use: key findings from the 2001/2002 British Crime Survey. Findings 209. London: Home Office ● Racist incidents recorded by the police have continued to rise with nearly 60,000 incidents recorded in 2004/05, although the latest information from the BCS (self-reported crime) estimates that actual numbers of racist incidents fell from 206,000 in 2003/04 to 179,000 in 2004/05. ● There were 37,000 racially aggravated offences recorded in 2004/05. Just over a third of these offences were cleared up by the police – a similar proportion to previous years. ● In the three years 2002/03, 2003/04 and 2004/05, the police recorded 2,565 homicides. Wide disparities in risks exist for different ethnic groups. Black people were 4.5 times more likely and Asian people nearly twice as likely to be homicide victims as White people (excluding Shipman cases). Experience as suspects, defendants and prisoners ● There were 838,700 stop and searches recorded by the police under section 1 of the Police and Criminal Evidence Act 1984 and other legislation in 2004/05. This is a 14% increase on the previous year. ● Black people were six times more likely to be stopped and searched under Section 1 compared to White people, Asian people were as twice as likely to be stopped and searched. These rates are similar to previous years. ● In 2004/05, 41,300 searches were recorded by the police under Section 60 of the Criminal Justice and Public Order Act 1994 in 31 police force areas. ● Black people were 14 times more likely to be stopped and searched under Section 60 compared to White people whereas Asian people were six times more likely to be searched. ● In 2004/05, 32,086 searches were recorded by the police under Section 44(1) and Section 44(2) of the Terrorism Act 2000. ● Black people were 2.5 times as likely to be stopped and searched under the Terrorism Act when compared to White people in 2004/05 (down from three times more likely in 2003/04). Asian people were twice as likely to be stopped and searched under these powers than White people; again down from three times in 2003/04. ● The police cautioned 237,323 persons for notifiable offences in 2004. National cautioning rates were similar for Asian, White and Other ethnic groups, whereas the rate for Black people was almost three times that for White people. ● BME groups were more likely than White people to be committed at magistrates’ court to be tried by a jury at the Crown Court (20% for Black people, 30% for Asians and 15% for White people). BME defendants were substantially more likely to be acquitted at the Crown Court than White defendants (29% for Black people, 30% for Asians and 22% for White people). ● Black young offenders and those in the Mixed ethnic group were more likely to receive a community sentence compared to White offenders but less likely to be discharged or given a referral order. ● Black and Asian offenders accounted for 6% and 4% of persons starting court order supervision, with 2% and 1% respectively accounting for by the Mixed or ‘Chinese and other’ ethnicity. ● Excluding foreign nationals, the proportion of Black prisoners on 30 June 2005 relative to the population five times higher than for White people. Similarly, people from Mixed ethnic backgrounds were more than twice as likely to be in prison than their White counterparts. ● The number of deaths recorded for Black people has continued to fall from 16 people in 2002/03, 7 in 2003/04 to 4 in 2004/05. Section 95 Statistics 2004/5 on Race and the Criminal Justice System v Working in the CJS ● The representation of BME groups working for the criminal justice agency has improved in recent years. In 2004/05 the CPS, Police, Prison and Probation Services all recorded an increase in the percentage of BME staff on the previous year. Similarly, the percentage of BME staff also increased in the Crown and magistrates courts. Confidence in the CJS ● People from an Asian or ‘Other’ ethnic background were the most likely to rate the criminal justice agencies as doing a good or excellent job. ● Relative to White people, people from BME groups reported higher levels of perceived discrimination within the Criminal Justice System. Thirty-one per cent of people from minority ethnic groups feel that they would be treated worse than people of other races by one or more of the five Criminal Justice System organisations. This shows no significant change from 2001 (33%) or 2003 (31%). There has, however, been a statistically significant decrease in the percentage of people from minority ethnic groups who feel they would be treated worse than other races in four of the five organisations (the Courts, CPS, the Police and the Prison Service). vi Section 95 Statistics 2004/5 on Race and the Criminal Justice System Section 95 Statistics 2004/5 on Race and the Criminal Justice System vii Page Foreword iii Summary iv Chapter 1: Introduction 1 Chapter 2: The experience of people from BME groups as users of the Criminal Justice System 3 Chapter 3: The experience of people from BME groups as suspects, defendants and prisoners 9 Chapter 4: The experience of people from BME groups working in the Criminal Justice System 23 Chapter 5: Confidence in the Criminal Justice System among people from BME groups 27 Chapter 6: What is being done? 30 References 35 Contents Section 95 Statistics 2004/5 on Race and the Criminal Justice System 1 Since 1992 the Home Office has published statistical information to meet the requirement under Section 95 of the 1991 Criminal Justice Act. The aim of these publications is to help those involved in the administration of justice to avoid discrimination on the grounds of race. An additional publication to the 2002-3 statistics was published in July 2004 to present both an overview5 of the statistical information and also a more general assessment of the experience of Black and Minority Ethnic (BME) groups within the criminal justice system in England and Wales. The current document aims to highlight the main national changes that have taken place between 2003-4 and 2004-5 in both the statistical indicators and also in the development of policy and practice. The companion document Statistics on Race and the Criminal Justice System available on the Home Office RDS website includes breakdowns by police force areas. This report presents summary data describing the experiences of BME groups not just as victims, suspects and offenders but also as employees within the criminal justice system. For the moment, ethnic monitoring data are collected using a broad classification system.6 As a consequence, we lack detailed information on the experiences of specific ethnic categories, and on the particular problems, within distinct geographical areas. The population figures used in this report were derived from the mid year 2004 population estimates produced by the Office for National Statistics and weighted using the 2001 Census.7 This showed the proportions of the population aged 10 years and over across England and Wales as 91.3% White; 2.8% Black; 4.7% Asian and 1.2% ‘Other’. When interpreting the data, it is worth noting that people from BME groups are often significantly disadvantaged in social and economic terms compared to the White population, although there is considerable variation between and within each ethnic group. For example, Chinese and Indian groups tend to suffer little or no economic disadvantage relative to White groups; Black Caribbean, Bangladeshi and Pakistani groups suffer a range of severe forms of disadvantage, as do Black African groups, albeit to a lesser degree.8 This disadvantage relates to factors such as employment, housing and education; factors that are in part predictive of offending behaviour and general involvement in the criminal justice process. C h a p t e r 1 : Introduction 5 Hearnden, I., & Hough, M. (2004). Race and the Criminal Justice System: An overview to the complete statistics 2002/3. London: ICPR. 6 The Home Office has commissioned an independent review of how ethnic monitoring data are collected, which reported in 2005.The Root and Branch Review is due to be published shortly and once due cosideration has been given to the report’s recommendations, changes may be introduced in future years. 7 The 2001 Census was based on 16 categories (including Mixed). In order to make comparisons with the population where data was only collected for four groups (White, Black, Asian, Other) the Mixed category was divided between these categories as described in Statistics on Race and the Criminal Justice System 2005 – see Appendix B. 8 Phillips, C. & Bowling, B. (2003) Racism, Race and Ethnicity: developing minority perspectives in criminology, British Journal of Criminology 43, no.2, pp 269-290. Unemployment rates for people from BME groups are generally higher than those from White ethnic groups. There are differences within the BME group with unemployment among the economically active; rates are high for Black Caribbean, Black African, Bangladeshi, Pakistani and Mixed groups and low for Indian and Chinese groups. People from minority ethnic groups are also more likely than White people to live in low-income households. Again, there is considerable variation among the different ethnic groups. Pakistanis and Bangladeshis are much more likely to be living on low incomes. In terms of education, Chinese pupils are most likely to achieve five or more GSCE grades A*-C with Indian pupils achieving the next highest achievement levels. The lowest level of GCSE attainment is amongst Black Caribbean pupils, particularly boys. Black pupils are more likely to be excluded from schools than children from other ethnic groups.9 How ethnicity is monitored in the Criminal Justice System Ethnic monitoring in criminal justice agencies relies on a variety of recording methods and classification systems. Since 1 April 2003 a standard system of recording has been introduced into all agencies based on self-classification into one of 16 categories used in the 2001 Census. This approach allows direct comparisons to be made between criminal justice data and census data. Classification is based around five main groups: White, Mixed, Black, Asian and ‘Other’. The Mixed group mainly includes those of Black and White origin and Asian and White origin. The change to self-classification has been particularly difficult for the police to implement since it has involved collecting data on ethnicity directly from a suspect on the street. As a consequence, a high proportion of data on ethnicity is missing. In view of this problem, the presentation of police data continues the previous practice of using visual assessments and the four groups Asian, Black,White and Other. For other sources, e.g. household surveys (such as the British Crime Survey), prison receptions and the monitoring of those who work in criminal justice agencies, the 2001 Census categories and self-classification have already been successfully introduced. The aim is to introduce use of the 2001 categories across the entire criminal justice system over the next 2-3 years. 2 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 9 White, A. (2002) Social Focus in Brief: Ethnicity 2003, London: ONS. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 3 People seek the services of criminal justice agencies for various reasons. The most obvious is to notify the police of a crime but for many it may be as a witness, member of a jury or as a lay magistrate, prison visitor or victim support volunteer. Experience as crime victims The British Crime Survey (BCS) is a large face-to-face household survey asking about people’s experience and perceptions of crime in the last 12 months in England and Wales. It also records whether or not a victim of crime perceived the crime to be racially motivated. In this chapter, results from the most recent BCS, that is 2004/05, are reported. Relevant findings from the analysis of earlier surveys, such as the BCS 2002/03 and 2003/04, are also reported. The 2004/05 BCS shows that there has been a fall in BCS recorded crime in England and Wales since its peak in 1995 (Nicholas et al, 2005). Against this background of declining crime, there are variations in the risks of victimisation experienced by different ethnic groups, as shown in Figure 2.1. The 2004/05 BCS shows that people from Mixed ethnic groups face significantly higher risks of crime than White people. However, there were no other statistically significant differences between people from different ethnic backgrounds.10 The levels of risk for people from White, Mixed and Asian ethnic groups fell substantially between 2003/04 and 2004/05. It should be noted that differences in the risk of victimisation between ethnic groups may be at least partly attributable to factors other than ethnicity. Previous analysis on the 2002/03 BCS showed that people from BME groups were at greater risk of total BCS crime, i.e. household crime such as burglary and theft in a dwelling, and personal crime such as common assault and robbery, than White people.11 However, that was largely explained by the younger age profile of the BME population and the fact that younger people experience higher rates of victimisation. Once age was controlled for the difference in risk between BME and White groups disappeared (Salisbury and Upson, 2004). The analysis of the 2002/03 BCS also showed that people in BME groups were at greater risk of personal crime compared with White people but not of household crime. Comparing risk across the individual groups, people from a Mixed ethnic or Asian backgrounds were at greater risk of victimisation than White people. After allowing for age the difference between Asian and White people disappeared. However, this was not the case for those of the Mixed ethnic group who continued to have higher risks of victimisation than all the other ethnic backgrounds even after controlling C h a p t e r 2 : The experience of people from BME groups as users of the Criminal Justice System 10 Statistical significance means that an observed difference between variables is unlikely to have occurred by chance. 11 The respondent answers on behalf of the whole household in the offence categories of: burglary; theft in a dwelling; thefts of and from vehicles; and vandalism to household property and vehicles. For personal offences, respondents report on their experience of: assault; sexual offences; robbery and theft from the person. The BSC does not cover personal crime against those aged under 16 or against those living in institutions. factors such as age and area of residence. This analysis is currently being updated with data from the 2003/04 and 2004/05 BCS and will be published in a forthcoming Home Office Research Findings.12 Figure 2.1(1,2) Risk of being the victim of a crime (2004/05 BCS interviews) (1) For household offences reported in the BCS, all members of the household can be regarded as victims. (2) For personal offences, the respondent reports only on his/her experience to the BCS. Worry about crime The 2004/05 BCS shows that people in BME groups were significantly more likely than White people to be worried about burglary, car crime and violent crime. In addition, people from Black, Asian, and ‘Chinese and Other’ backgrounds were more likely to worry about burglary and car crime than people from the Mixed ethnic group. Worry about car crime had decreased among White people, and the worry about violent crime had increased among the ‘Chinese and Other’ group between 2003/04 and 2004/05. 0 5 10 15 20 25 30 35 Chinese and otherBlack or Black BritishAsian or Asian BritishMixedWhite 24 29 26 24 23 Pe rc en ta ge v ic ti m s o nc e o r m o re 4 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 12 Jansson, K (forthcoming) Ethnicity and victimisation; findings from the 2004/05 British Crime Survey. Home Office Figure 2.2 Worry about crime by ethnic group (2004/05 BCS interviews) Racist crimes The experience of crime for those in BME groups, either as a victim or a witness to a crime, will include some crimes that will have been racially motivated. The latest information from the BCS (self-reported crime) estimates that in 2004/05 there were 179,000 racially motivated incidents (including those on White people), which is lower than the 2003/04 estimate of 206,000. Such incidents include the use of racist language, criminal damage and physical assaults. The police record information on racist incidents using a similar definition to the BCS, that is “any incident which is perceived to be racist by the victim or any other person” (Macpherson, 1999). Police statistics show a different result. Racist incidents recorded by the police increased from just over 10,000 in 1996/97 to nearly 50,000 in 1999/00. As shown in Figure 2.3, the number of racist incidents has continued to rise steadily over the last five years with nearly 60,000 incidents recorded in 2004/05. The sharp rise is thought to be the result of encouragement by all agencies and community groups for better reporting by victims and better recording by the police rather than an actual rise in the number of incidents. Although White people experience the highest number of incidents they are at a comparatively lower risk of racially motivated crime.13 0 5 10 15 20 25 30 35 Violent crimeCar crimeBurglary 11 15 27 26 27 12 17 27 30 29 14 31 37 34 37 Pe rc en ta ge w o rr ie d Chinese or otherBlackAsianMixedWhite Section 95 Statistics 2004/5 on Race and the Criminal Justice System 5 13 Salisbury, H. and Upson, A. (2004) Ethnicity, Victimisation and Worry about Crime: findings from the 2001/02 and 2002/3 British Crime Surveys. London: Home Office Research Findings No 237. Figure 2.3(1) Racist incidents recorded by police forces, percentage change on 1999/00 totals to 2004/05 (1) This figure shows indexed trends. The 1999/00 figure is indexed at 100. The numbers of racist incidents for each subsequent year are each expressed as a percentage of the 1999/00 figures. The 1998 Crime and Disorder Act identified certain offences of violence, harassment and criminal damage as racially aggravated; 37,074 such offences were recorded in 2004/05, of which, 61% were harassment, 24% crimes against the person such as wounding and common assault, and 15% criminal damage. The total number of offences was above that recorded in both 2002/03 (31,034) and 2003/04 (35,022). Just over a third (36%) of racially aggravated offences were cleared up by the police – a similar proportion to previous years (34% in 2003/04 and 34% in 2002/03). This is better than the 30% clear up rate for non-racially aggravated offences. However, the difference between clear-up rates is largely the result of the difference between the number of racially aggravated and non-racially aggravated criminal damage offences. Only for criminal damage offence was the clear-up rate for racially aggravated offences (20%) greater than for the non-aggravated equivalent (14%). For the other offences, that is, harassment, other wounding, and common assault, the reverse was true; the clear up rate was higher for non-aggravated offences than for aggravated offences. Only a small number (4,409 offenders) were cautioned or convicted by the courts for racially aggravated offences. This finding may reflect the difficulty of proving racial aggravation in court.14 60 76 92 108 124 140 2004/052003/042002/032001/022000/011999/00 100 111 114 103 111 124 In de xe d tr en d 6 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 14 Burnley, E. and Rose, G (2002) Racist Offences – how is the Law Working?: the implementation of the legislation on racially aggravated offences in the Crime and Disorder Act 1998, Research Study No 244. London: Home Office. The Crown Prosecution Service (CPS) also monitors prosecution and outcomes in all cases identified by the police or CPS as arising from a racial incident.15 It identified 5,788 of the cases they dealt with in 2004/05 as being racist incidents, 22% higher than in 2003/04. The police identified 91% of these cases, whilst the CPS identified the remaining 9% (the proportions for the previous year were 90% and 10%). Figure 2.4(1) Defendants received by the CPS, percentage change on 2000/01 totals to 2004/05 (1) This figure shows indexed trends. The 2000//01 figure is indexed at 100. The numbers of defendants for each subsequent year are each expressed as a percentage of the 2000/01 figure. Homicides Murder, manslaughter and infanticide (collectively referred to as homicide) are amongst the less frequent crimes in England and Wales. In the three years – 2002/03, 2003/04 and 2004/05, the police recorded 2,565 such offences. However, there are wide disparities in the risks for different ethnic groups. Excluding the 172 homicides of White people killed by Harold Shipman, Black people were 4.5 times more likely and Asian people 1.7 times as likely to be victims of a homicide as White people, the same as in the three years up to and including 2003/04. 60 80 100 120 140 160 180 200 2004/052003/042002/032001/022000/01 100 120 135 152 186 In de xe d tr en d Section 95 Statistics 2004/5 on Race and the Criminal Justice System 7 15 CPS (2005) Racist incident monitoring: Annual Report 2004/5 London: Crown Prosecution Service. Figure 2.5(1) Homicides per 10,000 population, combined data for 2002/3 to 2004/5 (1) Number of victims: White 1,750; Black 242; Asian 153; Other 108 (excluding Shipman cases) While the risk for White people was similar for males and females and all age groups, Black victims were predominately young men and a third were the victims of firearms.16 Figure 2.6(1,2) Apparent method of killing of currently recorded homicide victims by percentage, combined data for 2002/03, 2003/04, 2004/05 (1) Those recorded as homicide as at 28 November 2005 (2) Other category includes the 172 individuals killed by Harold Shipman. Sharp instrument 29% 8% 18% 8% 5% 32% 35% 4% 5% 4% 32% 20% White homicide victims Black homicide victims Blunt instrument Hitting/Kicking Strangulation Shooting Other 0.0 0.5 1.0 1.5 2.0 2.5 OtherAsianBlackWhite 0.4 1.8 0.7 2 Pe r 10 ,0 00 p o pu la ti o n 8 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 16 Bullock, K. and Tilley, N. (2002) Shootings, Gangs and Violent Incidents in Manchester: developing a crime reduction strategy. Crime Reduction Research Series Paper 13. London: Home Office. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 9 Evidence reviewed in this chapter shows quite clearly that people from BME groups are over-represented at each stage of the criminal justice process from initial contact to sentencing. Evidence also suggests that it is not to be because people from BME groups are more likely to offend.17,18 BME groups’ over- representation in the CJS is not unique to England and Wales. International reviews suggest specific minority ethnic groups are more likely to have contact with the system than majority groups.19 Figure 3.1 Proportion (%) of ethnic groups at different stages of the criminal justice process 2004/05 Criminologists have suggested several factors that might lie at the root of this observed disproportionality, including discrimination on the part of the police20, socio-demographic factors21, the suggestion that Black people spend more time on the streets than their White counterparts22, or police recording practices.23 Another possibility is that those in BME groups committing offences are detected to a greater extent by 0 10 20 30 40 50 60 70 80 90 100 Prison Population Prison Receptions Crown Court Young Offenders Cautions Arrests Stops & Searches Population over 10 White Black Asian Other/Unknown 91 3 5 1 75 14 7 2 84 9 5 1 84 6 4 1 85 6 3 3 76 13 7 4 77 14 5 4 81 10 5 3 C h a p t e r 3 : The experience of people from BME groups as suspects, defendants and prisoners 17 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 London: Home Office. 18 Aust, R, & Smith, N. (2003). Ethnicity and drug use: key findings from the 2001/2002 British Crime Survey. Findings 209. London: Home Office 19 Junger-Tas, J. & Marshall, I. H. (1999). The self-report methodology in crime research. In M. Tonry (Ed.), Crime and Justice. A Review of Research. Vol 25. (pp. 291-367). Chicago: The University of Chicago. 20 Smith, D.J., & Gray, J. (1985). Police and the Public. London: Gower. 21 FitzGerald, M. (1993). Ethnic Minorities and the Criminal Justice System. Royal Commission on Criminal Justice Research Study 20. London:HMSO. 22 FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. 23 FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. the criminal justice system as proportionally more of those BME groups are likely to be known to the police.24 Other authors have suggested that methodological and conceptual issues make it impossible to conclude that people from BME groups commit any more or less crime than White people.25 The current lack of robust ethnic monitoring data across the CJS, combined with the lack of unequivocal empirical evidence, make it impossible to provide a conclusive answer to the question of the root causes for this disproportionality. However, it is clear from the data that disproportionality continues to be a key issue meriting further investigation. Offending behaviour There is no consistent picture of whether there are differences in offending behaviour between ethnic groups that could explain the over-representation of BME groups. The BCS has asked victims to give their description of the ethnicity of ‘their’ offender. These results show a slight under-representation of Asian offenders, and a slight over-representation of Black offenders. The exception was victims of personal robbery where a Black person was said to be responsible for the attack in about a third of cases.26 Alternative methods of measurement based on self-reported criminal behaviour have their own methodological limitations, so results have to be treated with caution. However, findings from a self-report survey published in 2005 suggested that Black respondents had rates of self-reported offending that were either similar to or substantially lower than White respondents. It found that Black and Black British males in the general population aged 10 to 25 were no more or less likely to have committed an offence in their lifetime than White males of the same age. Moreover, the figures for offending in the last year suggested that Black male respondents in this age group were significantly less likely than White respondents to have committed an offence during this time period. The pattern for older male respondents aged 26 and above differs slightly – the lifetime offending rate was significantly lower in Black respondents compared with White, whilst the last year offending rate was similar across the two groups.27 Stop and searches Section 1 PACE An important ‘gateway’ for some offenders into the Criminal Justice System are the ‘stop and search’ powers granted under the terms of the Police and Criminal Evidence Act (1984) and other legislation. The disproportionate use of these powers on BME groups has been shown both by household surveys such as the British Crime Survey and also police statistics. Although police statistics provide a measure of the risk of being searched, they only record the total number of searches carried out each year and not the number of persons searched. Searches are carried out on only a small minority of the population, but one person may be searched many times in one year. There were 838,700 stop and searches recorded by the police under section 1 of the Police and Criminal Evidence Act 1984 and other legislation in 2004/05. This is a 14% increase on the previous year. This increase is apparent across all ethnic groups. Compared with 2003/04, there was a 15% increase in the number of searches on White people; a 9% increase for Black people, 12% increase for Asian people and 20% increase for people in the ‘Other’ ethnic group. This contrasts with the 2003/04 figures which recorded the first fall in the use of these stop and search powers since 2000/01. The trends in Figure 3.2 10 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 24 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 London: Home Office. 25 Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman. 26 Kershaw, C., Budd, T., Kinshott, G., Mattinson, J.,Mayhew, P. and Myhill, A. (2000) The 2000 British Crime Survey England and Wales. Home Office Statistical Bulletin 18/00. London: Home Office. 27 Sharp C. and Budd T. (2005) Minority ethnic groups and crime: findings from the Offending Crime and Justice Survey 2003, Home Office Online Report 33/05 show that overall there has been a gradual decline in the number of White people stopped and searched since 1997/98. Whereas, for Black and Asian people the numbers of stop and searches are broadly similar to levels recorded in 1997/98. Figure 3.2(1) Persons stopped and searched under s1 Police & Criminal Evidence Act 1984, and other legislation, by ethnic group, percentage change on 1997/98 totals to 2004/05 (1) This figure shows indexed trends. The 1997/98 figure is indexed at 100. The numbers for each subsequent year are each expressed as a percentage of the 1997/98 figures. Figure 3.3 shows the number of searches carried out under section 1 PACE for the different ethnic groups expressed as a rate per 1,000 population. In 2004/05 Black people were six times more likely to be searched than White people. This is a similar rate to 2002/03 and 2003/04. Asian people, as in 2003/04 and 2002/03, were twice as likely to be searched as White people. The pattern and level of disproportionality has historically remained fairly constant although, as shown in Figure 3.2, the number of searches carried out by police forces has varied over time. 0 20 40 60 80 100 120 140 160 2004/052003/042002/032001/022000/011999/20001998/991997/98 In de xe d Tr en d White Black Asian Other Section 95 Statistics 2004/5 on Race and the Criminal Justice System 11 Figure 3.3(1) Persons stopped and searched under s1 Police & Criminal Evidence Act 1984, and other legislation, by ethnic group, per 1,000 population, 2002/03 to 2004/05 (1) Number of stop and searches under s1 in 2004/05: White 626,853; Black 118,187; Asian 59,995; Other 12,901 Number of stop and searches under s1 in 2003/04: White 547,369; Black 108,208 Asian 53,794; Other 10,796 Number of stop and searches under s1 in 2002/03: White 665,232; Black 118,548; Asian 58,831; Other 11,468 Figure 3.4 represents section1 statistics by individual police force areas. The grouping of areas adopts a similar approach to that used in Hearnden & Hough (2004). The areas have been grouped together into four bands on the basis of the total BME population in each police force area. For example, the City of London and Metropolitan Police have the greatest number of BME residents (over 1.8 million) and is the first police force area in Band 1. In contrast, Cumbria has the lowest number of BME residents (just over three thousand) and is the last area in Band 4. The bands are: Band 1 – The six areas with the highest number of BME population Band 2 – The next 12 forces with highest number of BME population Band 3 – The next 12 forces Band 4 – The 12 forces with the lowest BME population. Patterns broken down by individual forces are important, as they provide local knowledge of patterns of disparity, but also illustrate more general patterns of what might be called ‘justice by geography’, whereby the system treats similar people differently in different places.28 For example, within Band 1 the disproportionality in the West Midlands between search rates for Black and White people is higher than the disproportionality seen in London. However, the overall volume of searches for both groups in the West Midlands stand at around half of the London levels. Outside of London, West Yorkshire conducted the highest number of searches in Band 1, however, the disproportionality amongst Black and White people is the lowest amongst these areas. Amongst all the police force areas Northumbria has the least disproportionality between the different ethnic groups, with Black and White people almost equally as likely to be stopped and searched by police. Variations in recording practices in different forces may also play a part in these differences. 0 10 20 30 40 50 60 70 80 90 100 Other Asian Black White 2004/05 Number of searches per 1,000 population 15 13 16 90 83 92 27 24 27 24 20 21 2003/04 2002/03 12 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 28 Hearnden, I. and Hough, M. (2004) Race and the Criminal Justice System: An overview to the complete statistics 2002-2003, London: Home Office Figure 3.4 Persons stopped and searched under s1 Police & Criminal Evidence Act 1984, and other legislation, by ethnic group, per 1,000 population, for Band areas 1 to 4, 2004/05 Band 1 Band 2 0 20 40 60 80 100 120 England and Wales South Wales Avon and Somerset Essex Sussex Surrey Kent Hampshire Nottinghamshire South Yorkshire Hertfordshire Bedfordshire Lancashire White per 1,000 population Black Asian 17 31 22 6 25 10 12 67 27 19 109 46 3 19 15 91 16 8 7 43 60 16 10 8 18 66 5 33 7 12 14 12 43 16 15 27 90 74 5 0 20 40 60 80 100 120 140 England and Wales Leicestershire Thames Valley Greater Manchester West Yorkshire West Midlands MPS and City of London White per 1,000 population 26 108 34 10 51 20 35 118 45 24 24 107 61 27 9 14 23 87 90 15 27 Black Asian Section 95 Statistics 2004/5 on Race and the Criminal Justice System 13 Band 3 Band 4 0 20 40 60 80 100 120 England and Wales Dyfed-Powys Cumbria North Wales Durham Lincolnshire Gwent North Yorkshire Norfolk Dorset Humberside Wiltshire Cleveland White per 1,000 population Black Asian 30 48 23 13 69 8 8 26 19 9 96 11 8 72 5 5 11 9 20 75 20 20 11 18 7 14 18 34 18 13 18 18 30 15 15 27 90 17 11 0 20 40 60 80 100 England and Wales Gloucestershire Cheshire Suffolk Devon and Cornwall Warwickshire West Mercia Northamptonshire Staffordshire Northumbria Merseyside Derbyshire Cambridgeshire White per 1,000 population Black Asian 7 34 15 6 46 22 17 44 20 12 10 18 77 20 42 12 11 22 8 37 12 71 36 16 11 14 7 30 13 15 49 25 7 7 34 15 27 90 50 14 Section 95 Statistics 2004/5 on Race and the Criminal Justice System There are also wide variations in the reason why such searches are made. Nationally 41% of all searches were for drugs, although in some forces, for example Greater Manchester and Lancashire, the main reason given was for stolen property. Few searches resulted in an arrest, with similar proportions recorded across all ethnic groups. Nationally 11% of searches lead to an arrest for the White and Black groups, 10% for the Asian group and 15% for the ‘Other’ ethnic group. In 2004/05, compared with 2003/04, searches resulting in an arrest decreased by 2% for both the Black and White groups and decreased by 1% for both the Asian and ‘Other’ ethnic groups. Section 60 searches Searches may also be made under section 60 of the Criminal Justice and Public Order Act 1994. This legislation provides the police with additional powers to search persons and vehicles where it is believed that to do so would help prevent incidents involving violence or that persons are carrying dangerous instruments or offensive weapons. In 2004/05, a total of 41,302 searches were carried out under these powers in 31 police force areas, 1,109 more than in 2003/04. The largest increases were in the Black and Minority Ethnic (BME) groups (up 22% for Asian, 17% for ‘Other’ and 5% for Black people) compared with a 3% fall for White people. Figure 3.3 shows the number of searches carried out under section 60 of the Criminal Justice and Public Order Act 1994 in 2004/05 for different ethnic groups expressed as a rate per 1,000 population. The rate for Black people is 14 times the rate for White people whilst for Asian people the rate is six times higher.29 This may be due to the large numbers of s60 searches in areas with high BME populations, such as the West Midlands,30 London and Greater Manchester. Figure 3.5 (1,2) Persons stopped and searched under s60 of the Criminal Justice and Public Order Act 1994 per 1,000 population, 2002/03 to 2004/05 (1) Number of stop and searches under s60 in 2004/05: White 23,246; Black 9,833; Asian 6,844; Other 808 Number of stop and searches under s60 in 2003/04: White 23,868; Black 9,385; Asian 5,627; Other 688 Number of stop and searches under s60 in 2002/03: White 24,179; Black 11,204; Asian 6,979; Other 1,095 (2) Figures exclude vehicle only searches (see Ayres and Murray, 2004/05) 0 1 2 3 4 5 6 7 8 9 10 Other Asian Black White 2004/05 Per 1,000 population 0.7 0.6 0.5 9 7.2 7.5 3.5 2.6 3.1 2.4 1.3 1.5 2003/04 2002/03 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 15 29 Calculations based on figures taken to two decimal places 30 Section 60 has been used extensively within the West Midlands under Operation Safer Streets. The proportion of stop and searches resulting in an arrest under section 60 powers varied across forces; overall 3% led to an arrest in 2004/05 compared with 4% in 2003/04, and 6% in 2002/03 (see Ayres and Murray 2004/05). Section 44 searches The Terrorism Act 2000 provides the police with further powers to carry out searches. These powers (under section 44(1) for vehicle searches and section 44(2) for pedestrians) were used to carry out about 32,086 searches in 2004/05, a 9% increase since 2003/04 in 21 police force areas. It should be noted that these figures cover the financial year 2004/05 and therefore predate events in July 2005. Of these searches 23,400 were of White people, 2,511 of Black people, 3,494 of Asian people and 1,481 of ‘Other’ ethnic groups. Two fifths (40%) of all searches were in the Metropolitan Police District and 20% in the City of London. The use of the powers in London reflects the high level of police security as the powers help to deter and disrupt potential terrorist attacks. Figure 3.6 shows Black people were 2.5 times more likely to be stopped and searched under the Terrorism Act when compared to White people in 2004/05 (down from three times more likely in 2003/04). Asian people were twice as likely to be stopped and searched under these powers than White people; again down from three times in 2003/04, whilst the ‘Other’ group were almost four times as likely, similar to 2003/04. Figure 3.6(1,2,3) Persons stopped and searched under s44(1) or s44(2) of the Terrorism Act 2000, per 10,000 population, 2002/03 to 2004/05 (1) Number of stop and searches under s44(1) or s44(2) in 2004/05: White 23,400; Black 2,511; Asian 3,494; Other 1,481. Number of stop and searches under s44(1) or s44(2) in 2003/04: White 20,637; Black 2,704; Asian 3,668; Other 1,322. Number of stop and searches under s44(1) or s44(2) in 2002/03: White 14,429; Black 1,744; Asian 2,989; Other 1,259. (2) Rates expressed as per 10,000 to accommodate the relative infrequency of the use of powers under s44. (3) Analysis calculated using the population estimates for only those police force areas where powers were used. Arrests Seven per cent of all arrests for notifiable offences in 2004/05 resulted from a ‘stop and search’, the same proportion as 2003/04. Figure 3.7 shows the incidence of arrests per 1,000 population for 2002/03 to 0 5 10 15 20 25 30 35 40 Other Asian Black White 2004/05 Number of searches per 1,000 population 9 7 6 22 23 16 20 20 16 34 29 31 2003/04 2002/03 16 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 2004/05.31 A similar pattern is apparent in terms of disproportionality as is shown above for searches. However, the differences between ethnic groups are not as distinct. Black people, for example, were six times more likely to be searched under section 1 than White people whereas the arrest rate for Black people is three times the rate for White people. Figure 3.7 also shows that arrest rates for different ethnic groups have changed little over the three years. Unlike stop and searches the level of total arrests has remained relatively constant for all BME groups over this time. The difference between the two trends can be explained by the recent fall in arrests for offences, for example drugs offences, that could follow a stop and search in contrast to a rise in arrests for other types of offences. Figure 3.7(1,2) Persons arrested for notifiable offences per 1,000 population, by ethnic group 2002/03 to 2004/05 (1) Number of arrests 2002/03: White 1,102,900; Black 116,722; Asian 64,276; Other 17,250 Number of arrests 2003/04: White 1,122,135; Black 116,427; Asian 63,458; Other 19,092 Number of arrests 2004/05: White 1,142,266; Black 118,579; Asian; 65,905 Other 19,508 (2) Figures for Merseyside estimated. The type of offences that led to an arrest has changed little over recent years. In 2004/05, Black people remained over-represented for robbery offences (29% of all arrests for robbery) and Black and Asian people for fraud and forgery (18% and 11% respectively of those arrested for this offence). Cautions Once arrested, suspects may be charged, given a formal caution, written warning or have no further action taken. For those aged under 17, a caution is in the form of a reprimand or final warning. Relative to population (Figure 3.8), the cautioning rates per 1,000 population were similar for Asian,White and Other groups, whereas the rate for Black people was almost three times that for White people in 2004. There has been little change in cautioning rates and differences between groups since 2002. Looking at the percentage of arrests resulting in a caution, Black people remained slightly less likely to be cautioned than other ethnic groups – only 13% of arrests resulting in a cautioned compared with 16% for Asian and 0 10 20 30 40 50 60 70 80 90 100 Other Asian Black White 2004/05 Per 1,000 population 27 26 26 91 89 90 30 30 29 36 35 32 2003/04 2002/03 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 17 31 Incidence describes the number of incidents in an area. 17% for White people. When compared with arrests Black people were shown to be consistently more reluctant to be cautioned than White people. A caution or reprimand can be given only where an offender admits the offence, and this partly explains the lower rates of cautioning for ethnic minorities.32 Figure 3.8(1) Persons cautioned for notifiable offences, per 1,000 population, by ethnic group, 2002 to 2004 (1) Number of cautions 2002/03: White 173,273; Black 13,901; Asian 9,918; Other 2, 313 Number of cautions 2003/04: White 1, 85,082; Black 14,720; Asian 10,256; Other 2,703 Number of cautions 2004/05: White 198,847; Black 15,266; Asian 10,511; Other 2,740 Court proceedings Increasingly the police seek charging advice from the CPS. This is under the provision of the new statutory charging scheme through which the CPS prosecutor decides the charge in the majority of cases, with a few minor exceptions. Statutory charging is currently being rolled out across the country and will be fully implemented in all parts of England and Wales by 2007. An initial race and gender impact assessment of charging decisions was undertaken in two parts of London in early 2004 and found no ethnic differential. The CPS is currently undertaking an Equality and Diversity Impact Assessment on the impact of statutory charging to discover if charging decisions vary with the gender and ethnicity of the suspect. The report on this work is due to be published in the first quarter of the financial year 2006/07. At present there are no comprehensive ethnic data on proceedings at either magistrates’ courts or the Crown Court. For magistrates’ courts, ethnic data is only available for six police force areas where the level of missing data is below 20%. The Crown Court has recently introduced an ethnic monitoring system enabling the collection of the ethnicity of 78% of all suspects tried in 2004 (up from 65% in 2003).33 Each year figures are published for only those police force areas with the most complete data, i.e. where the proportion unknown was 15% or less. In 2004, there were 16 such areas. This is an improvement on 2003 when figures were published for only five police force areas. At both courts, court staff extract the 0 2 4 6 8 10 12 14 Other Asian Black White 2004/05 Per 1,000 population 5 4 4 12 11 11 5 5 5 5 5 4 2003/04 2002/03 18 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 32 Phillips and Brown (1998) Entry into the Criminal Justice System: a Survey of Police Arrests and Their Outcomes, Home Office Research Study No. 185, London: Home Office. 33 For complete breakdown of ethnicity data provided by the magistrates and Crown Court refer to Statistics on Race and the Criminal Justice System – 2005. London: Home Office. ethnicity of a suspect from the charge sheet supplied by the police. The incompleteness of data means that the results must be treated with caution. However the mix of ethnic groups found for Crown Court trials is very similar to that for arrests, suggesting that the data is representative of the population as a whole. Combined information for the magistrates’ courts in the six police force areas is consistent with earlier research34 and the HM Crown Prosecution Service Inspectorate Report,35 which suggests that in 2004 BME groups were more likely than White people to be committed at magistrates’ court to be tried by a jury at the Crown Court (20% for Black people, 30% for Asians and 15% for White people). Earlier research36 suggests that this may reflect the wish of BME defendants to be tried by a jury at the Crown Court. For the Crown Court: combining all available information for 2004 indicates that BME defendants were substantially more likely to be acquitted at the Crown Court than White defendants (29% for Black people, 30% for Asians and 22% for White people). Research by the Crown Prosecution Service37 suggests a tendency for the police to bring charges against Black and Asian defendants with weaker evidence. Sentencing Defendants convicted at either magistrates’ courts or the Crown Court will be sentenced after taking into account information from the pre-sentence report. A small number of defendants will be sent from the magistrates’ court to the Crown Court where magistrates feel their powers are insufficient. The sentencing decision is probably the most complex of all those that are made in the criminal process. Sentences have to take into account the nature of the offence, the plea, the offender’s previous criminal history and other mitigating or aggravating circumstances relating to the offence and the offender. In these circumstances it is difficult to separate differences due to ethnicity against other factors. A major study conducted by Hood (1992) attempted to differentiate ethnicity from such factors and covered decisions made in five Crown Court Centres in the West Midlands in 1989.38 The study concluded that adult male Black defendants were slightly more likely to be sentenced to custody than White defendants, and Asian defendants slightly less likely. It also showed that substantially longer sentences were given to both Black and Asian offenders than White offenders. A more recent study of young offenders (aged from 12 to 17) showed no evidence of significant differences in the likelihood of Black, Mixed race or White male youths receiving a custodial sentence. Asian males, however, were more likely to receive a custodial sentence. Black males, if sentenced to custody, were more likely to get a longer sentence than their White counterparts.39 The data currently available from magistrates’ courts and the Crown Court partly supports the conclusions from this survey although as with the data on court proceedings the results must be treated with caution. It cannot, however, allow for the factors that the Hood study40 was able to take into account since this would require a similar new study. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 19 34 Barclay, G. and Mhlanga, B. (2000) Ethnic differences in decisions on young defendants dealt with by the Crown Prosecution Service. Home Office Section 95 Findings No 1. London: Home Office. 35 HM Crown Prosecution Inspectorate (2002) Report on the Thematic Review of Casework having a Minority Ethnic Dimension. London: HMCPSI. 36 FitzGerald, M. (1993). Ethnic Minorities and the Criminal Justice System. Royal Commission on Criminal Justice Research Study 20. London:HMSO. 37 John, G. (2003) Race for Justice. A review of CPS decision making for possible racial bias at each stage of the prosecution process. London CPS. 38 Hood, R. (1992) Race and Sentencing. Oxford: Clarendon Press. 39 Feilzer, M. & Hood, R. (2004). Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System, London:Youth Justice Board,. 40 Hood, R. (1992) Race and Sentencing. Oxford: Clarendon Press At the magistrates’ court (for six areas) there was no difference in the use of custody between those from BME groups and White people. However, Black offenders were more likely to be fined and less likely to be discharged compared with White offenders, although the overall use of community sentences was the same. In contrast Asian offenders were less likely to be given community sentences compared with White offenders and more likely to be fined. Community service orders mainly include community rehabilitation orders and community punishment orders. At the Crown Court (for 16 areas) there was a distinct difference in the custody figures for fraud and forgery offences. Forty nine per cent of White offenders were sentenced to custody compared to 70% for ‘Other’ and 61% for Black groups. In contrast there was no marked difference in the use of custody for BME groups and White people for violence, sex offences and burglary or robbery. However, overall Black offenders were more likely to be sentenced to custody than both Asian and White offenders with the highest differences found for drug offences. Eighty per cent of Black offenders were sentenced to custody for drug offences, 74% of Asian and 62% of White offenders. Young Offenders Youth Offending Teams (YOTs), produce the pre and post trial interventions for offenders under the age of 17. Research41 has been carried out on the experiences of BME young people dealt with in this way. This showed that there were higher proportions of young Black people committing some offences and receiving certain disposals than in the general population. In 2004/05, 287,013 offenders were dealt with in this way, of which, 85% were White, 6% Black, 3% Asian, 2% Mixed and 1% ‘Other’. The number of offences has risen by 1% since 2003/04 with the proportion of young offenders in the different ethnic groups remaining largely unchanged. Young Black people were substantially over-represented compared with White people for robbery offences. BME suspects were more likely to be remanded in custody. This could reflect differences between groups in the severity of the charges faced or other factors such as the suspect’s accommodation, previous convictions, failure to appear, inference with a witness, mental health etc. The use of remand has fallen slightly for all ethnic groups since 2003/04 apart from the ‘Other’ ethnic group which showed an increase from 7% to 8%. Black offenders and those of Mixed origin were more likely to receive a community sentence compared to White offenders but less likely to be discharged or given a referral order. Ten per cent of Black and Mixed offenders were sentenced to custody, compared with 8% for Asian and 6% for White offenders. Probation Following the introduction of the 2001 Census categories, information on the ethnicity of persons supervised by the National Probation Service became available. The data reveals that as with other parts of the criminal justice process there is an over-representation of Black offenders. For example, 6% of persons starting court order supervision in the last quarter of 2004 were Black compared to 4% for Asians, 2% for Mixed and 1% for ‘Chinese and Other’ ethnic group. 20 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 41 Feilzer, M. & Hood, R. (2004). Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System. London:Youth Justice Board Prison Population On 30 June 2005, there were 76,190 people in prison establishments, of which 18,752 (24.6%) were from BME groups42. Nearly two-fifths (38%) of BME prisoners were foreign nationals. Figure 3.9 presents the prison population per 1,000 population for 2004/05. In March 2003 the Prison Service began to introduce new ethnic categories based on the 2001 Census. Due to these changes, comparisons between the figures presented here and those of previous years are not possible. Figure 3.9 shows that, excluding foreign nationals, the proportion of Black prisoners on 30 June 2005 relative to the population was five times higher than for White people. Similarly, people from Mixed ethnic backgrounds were more than twice as likely to be in prison than their White counterparts. In contrast people from ‘Chinese and Other’ ethnic backgrounds were least likely to be in prison, 0.5 compared to 1.4 and 1.5 per 1,000 population for White and Asian groups respectively. The disproportionate number of Black people in prison was, therefore, higher than for arrests although this could be expected from the higher use of custody and the longer sentence lengths referred to in the Hood (1992) study, as well as higher remand rates. Figure 3.9(1,2,3) Prison population per 1,000 population by ethnic group 2004/05 (1) Based on data for UK nationals only. (2) Prison population on 30th June 2005: White 53,645; Mixed 1,746; Black; 6,749; Asian 2,929; Other 168. (3) Proportion calculations based on 2004 Census data for over 15 population. No evidence has been found for any differential treatment of people from the BME group on release from prison. The rate at which prisoners were released on Home Detention Curfew in 2002 have been found to be very similar for White, Black, and Asian prisoners while the rate for ‘Chinese and Other’ prisoners was higher.43 Research on the decisions of the Parole Board44 found no evidence of differential treatment of BME prisoners other than those accounted for by other characteristics associated with release, such as the number of adjudications received during sentence and being housed in an open prison. 0 1 2 3 4 5 6 7 8 Other Asian Black Mixed White Per 1,000 population 1.4 3.2 1.5 7.1 0.5 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 21 42 This figure includes foreign nationals; of the 76,190 in prison establishments on 30 of June 2005, 10,520 were not UK Nationals. 43 Home Office (2003) Prison statistics England and Wales 2002. London: Home Office. 44 Moorthy, U.,Cahalin, K. and Howard , P. (2004) Ethnicity and Parole. Home Office Research Findings No 222. London: Home Office. Reconviction A study of those released from prison in 200145 and reconvicted within two years showed lower reconviction rates for BME offenders. For example, for those discharged in 2001, 62% of prisoners classified as White were reconvicted within two years of release. For Black, South Asian and ‘Other’ ethnic group, the proportions were 56%, 46% and 46% respectively. However, this analysis included foreign nationals, who record a lower reconviction rate than British nationals as many leave the country after completing their sentence. Restricting the analysis to British nationals reduces the differences found in reconviction rates – White (63%), Black (61%), South Asian (48%) and ‘Other’ (55%). Deaths in police custody In 2004/05 there were 106 deaths in police custody, an increase from the 100 recorded in 2003/04 (Table 11.1). Ninety-six deaths involved White people compared to 90 in 2003/04. For minority ethnic groups the overall number (10) of deaths remained the same as the previous year. In 2004/05, there were three deaths recorded for Asian people and three from the ‘Other’ group. In 2003/04, there were two deaths recorded for Asian people and one in the ‘Other’ ethnic group. In contrast, the number of deaths recorded for Black people has continued to fall from 16 people in 2002/03, 7 in 2003/04, and 4 in 2004/05. 22 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 45 Home Office (2005) Offender Management Caseload Statistics 2004. London: Home Office. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 23 This chapter provides information on the representation of Black and Minority Ethnic (BME) groups working for the Criminal Justice System. The number of BME staff working in criminal justice agencies has traditionally been very low. There has, however, in recent years been a marked improvement in representation at all grades in line with targets set for each agency.46 Targets have been set for agencies to reach full representation in relation to the proportion of their staff belonging to BME groups by 2009. Police Service In 2004/05, 3.5% of police officers were from BME groups, compared with 3.3% in 2003/04. This figure is below the representation of BME groups in the population (8.2%).47 In total 6% of police constables with less than one year’s service in 2004/05 were from the BME groups. Asian people formed the largest group making up 37% of all BME officers compared with 26% for Black officers, 25% for those of Mixed origin and 12% from ‘Other’ BME groups. As Figure 4.1 shows the highest increase in 2004/05 compared with 2003/04 has been in Asian (9.6%) and Mixed (11.9%) ethnic groups. Figure 4.1(1) Percentage increase in Police officers by ethnic group 2003/04 to 2004/05 (1) Figures as at 31 March 2004 and 31 March 2005. 0 2 4 6 8 10 12 14 WhiteMixedBlackAsianOther 7.3 9.6 4.8 11.9 1.5 Pe rc en ta ge in cr ea se C h a p t e r 4 : The experience of people from BME groups working in the Criminal Justice System 46 Home Office (2005) Race Equality: Home Secretary’s Employment Targets, London: Home Office. 47 The Home Secretary’s Employment Targets were laid down in 1999 and therefore used the Labour Force Survey as their basis as this was best measure available at the time. In this report, the 2001 Census figures on the percentage of the population in England and Wales economically active and from BME groups are used as a comparison point for representation. Among those ranked Superintendent and above the proportion from BME groups has increased in recent years – from 0.8% in 1999 to 2.2% in 2003/4 and to 2.3% in 2004/05. For those BME police constables leaving the force during 2004/05 the proportion resigning voluntarily was 54% (this was 8% less than 2003/04) however, it remains higher than the 28% of voluntary resignations by White police constables. These differences may reflect the varied lengths of time some officers have been in post. In 2004/05, 6,214 Community Support Officers were in post 14% of whom were from BME groups. This compares to 3,418 in 2003/4 of whom 17% were BME officers. These proportions would have been affected by the large numbers of these officers recruited in 2004/05. There was a numerical increase in the number of BME Community Support Officers from 591 in 2003/04 to 889 in 2004/05. Prison Service The overall figure for BME prison officers in the Prison Service was 4.4% in 2004/05 compared with 4.1% in 2003/04. This is below the 8.2% representation of BME groups in the population as a whole. For Governor grades, the equivalent figures are 3.0% and 3.2%. Black people accounted for nearly one half (47%) of BME prison officers. Eight percent of recruits in 2004/05 were from BME groups. Figure 4.2(1) Percentage increase in Prison officers by ethnic group 2003/04 to 2004/05 (1) Figures as at 31st March 2004 and 31st March 2005 0 2 4 6 8 10 12 14 OtherAsianBlackWhite 4 9.8 1.9 12.5 Pe rc en ta ge in cr ea se 24 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Probation Service The Probation Service continues to have representation from BME groups above the 8.2% in the general population. The overall proportion of BME officers was 10.9% in 2004/05, up from 10.5% in 2003/04. This change may have been affected by the decrease in the number of Probation Service Staff where the ethnicity was unknown (the ethnicity of 5.8% of Probation Service staff in 2004/05 remained unknown). The largest percentage increase in the number of staff was found in the Mixed and Asian groups (13.2% and 21% respectively). Overall there was 3.3% increase in the number of Probation Service staff from 2003/04 to 2004/05. This increase is largely contributed to by a 4.9% increase in the White group compared to a 0.4% increase in BME groups. Figure 4.3 Percentage change in Probation staff by ethnic group 2003/04 to 2004/05 Crown Prosecution Service Levels of employment in the Crown Prosecution Service (CPS) are also above the 8.2% BME representation in the population. The proportion of BME staff in the CPS was 11.7% in 2004/05, up from 11.3% in 2003/04. Overall there was 3% increase in the number of CPS staff from 2003/04 to 2004/05. The largest percentage increase in the number of staff was found in the Black and Mixed groups (5.9% and 20.7% respectively). The Other group was the only group to experience a decrease (the groups small sample size means that a fall in the number of Chinese/Other staff from 45 in 2003/04 to 42 in 2004/05 resulted in a decrease of 5.7%).48 The CPS Annual Equalities in Employment Report 2004-2005 states that there is continued progress in improving BME representation at all levels in the CPS. For example, 13% of Chief Crown Prosecutors are from BME groups. Furthermore, 27% of scholars on the CPS Law Scholarship Scheme are from BME groups (a 7% increase from the previous year).49 -5 0 5 10 15 20 25 OtherAsianBlackMixedWhite 1.9 21 3.2 13.2 -0.9 Pe rc en ta ge in cr ea se Section 95 Statistics 2004/5 on Race and the Criminal Justice System 25 48 These figures are based on calculations including the Unknown category. 49 CPS (2005) Annual Equalities in Employment Report 2004-2005. London: Crown Prosecution Service Figure 4.4 Percentage change in CPS staff by ethnic group 2003/04 to 2004/05 Other Criminal Justice agencies The proportion of BME staff in the Department of Constitutional Affairs was 11.6% in 2004/05. Mixed and BME groups continue to be underrepresented at the most senior levels. For example, for DCA staff at Span 8 or above only 3.8% were from minority ethnic groups. In contrast 14.2% of Span 7 and below were from BME groups. The proportion of Black and Minority Ethnic staff in the magistrates’ court was 9.8% in 2004/05, up from 6.8% in 2003/04. The proportion of BME staff in the Crown Court was 7% – below the BME representation in the population as a whole. -10 -5 0 5 10 15 20 25 Chinese/OtherAsianBlackMixedWhite 2.6 20.7 5.9 5.7 -5.7 Pe rc en ta ge c ha ng e 26 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Section 95 Statistics 2004/5 on Race and the Criminal Justice System 27 This chapter summarises information about the confidence of BME groups in the Criminal Justice System. It draws on findings from two surveys: the British Crime Survey and the Home Office Citizenship Survey (HOCS).50 There is limited evidence on drivers of BME confidence in the CJS. Therefore, findings from recent smaller scale studies commissioned by the Office for Criminal Justice Reform (OJCR) and the Department for Constitutional Affairs (DCA) are also reported here.51 The BCS asks respondents their views on how good a job individual agencies in the CJS are doing. Figure 5.1 shows the results from the most recent BCS (2004/05).52 It found that, in general, Asian people and those from ‘Other’ ethnic groups were the most likely to rate the criminal justice agencies as doing a good or excellent job. For all ethnic groups levels of satisfaction were considerably higher for the Police Services and comparatively lower for the Juvenile courts. Figure 5.1 Perception that the CJS agencies are doing a good or excellent job, by ethnic group 2004/05 0 10 20 30 40 50 60 Juvenile Courts Probation Service PrisonsMagistratesJudgesCrown Prosecution Service The police 48 45 52 52 56 25 34 40 38 42 25 33 44 34 45 27 37 44 34 44 25 31 31 28 38 27 36 35 33 38 16 25 31 28 33 % t hi nk in g go o d o r ex ce lle nt Chinese or otherBlackAsianMixedWhite C h a p t e r 5 : Confidence in the Criminal Justice System among people from BME groups 50 HOCS is a biennial survey, asking a representative sample of 10,000 in England and Wales for their views and experiences in relation to a range of issues, including racial prejudice. There is a minority ethnic boost sample of 5,000 to ensure that the views of this group are robustly represented. 51 These studies are small scale and findings should not therefore be treated as representative. 52 Jansson, K. (forthcoming) Ethnicity and victimisation: findings from the 2004/05 British Crime Survey, London: Home Office However, the most recent HOCS (2005)53 reported that BME groups have much higher levels of perceived discrimination when it comes to CJS agencies compared to the White population. In 2005, 33% of the Black population, 29% of the Mixed and 21% of the Asian group felt that the police would discriminate against them, compared to just 5% of the White population. Similar views were held of the Prison service, the Courts, Crown Prosecution Service and the Probation Service although to a lesser extent. HOCS is used to measure the Public Service Agreement target (PSA2(e)), that is to reduce the percentage of people from BME communities who believe they would be treated worse by one or more CJS agency. Respondents are asked whether they think they would be treated differently than people of other races by the Police, the Prison Service, the Courts, the CPS and the Probation Service. Their responses for each organisation are then brought together into the composite measure, looking at discrimination by any of the five. The baseline for the target is 2001. On the composite measure, 31% of people from minority ethnic groups feel that they would be treated worse than people of other races by one or more of the five criminal justice system organisations.54 This shows no significant change from 2001 (33%) or 2003 (31%).55 There has, however, been a statistically significant decrease in the percentage of people from minority ethnic groups who feel they would be treated worse than other races in four of the five organisations (the Courts, CPS, the Police and the Prison Service) between 2001 and 2005. Change between the perceptions of BME and White people in 2003 and 2005 are illustrated in Figure 5.2. Figure 5.2 Percentage of BME and White people expecting CJS agencies to treat them worse than people of other races, Home Office Citizenship Survey 2001, 2003 and 2005. 0 5 10 15 20 25 30 Probation Services CPSCourtsPrison Service Police 27 23 24 6 5 5 21 17 17 4 2 2 14 13 12 5 6 6 14 12 11 5 5 5 11 10 10 4 3 3 % t hi nk in g go o d o r ex ce lle nt White 2003White 2001BME 2005BME 2003BME 2001 White 2005 28 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 53 Murphy, R. Wedlock, E. and King, J. (2005) Early findings from the 2005 Home Office Citizenship Survey, Home Office online Report 49/05. 54 The CJS agencies are the Police, the Prison Service, the Courts, the CPS and the Probation Service. 55 Recent analysis has shown that the percentage change from 2003 to 2005 is too small to be statistically significant. Knowledge about the workings of the CJS is one of the factors which may affect BME confidence in the CJS organisations.56 Findings from recent research commissioned by the DCA57 suggest that awareness of the CJS activities is generally lower among ethnic minorities, particularly Asians, than among the White population (based on self assessment of knowledge levels). Similarly a recent MORI study found awareness of the CJS agencies was low across BME groups.58 However, the DCA research also found that Black people were more likely than White and Asian groups to show a strong interest in CJS activities and were also more willing to get involved. Similarly, Asians were more willing than White people to get involved with victim and witness support schemes. In general, BME groups were less likely to have reported a crime to the police and less likely to have any experience of court. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 29 56 Page, B., Wake, R. & Hill, R. (in press) Confidence in the Criminal Justice System: explaining area variation in public confidence. Home Office Findings 251. 57 Department for Constitutional Affairs (2005) Consumer Experience of the Criminal Justice System, Volume A: Consumer Engagement. 58 BME Communities’ Expectations of Fair Treatment by the Criminal Justice System (2005) 30 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Earlier chapters of this Overview report highlighted that BME groups have different experiences and requirements of the Criminal Justice System both as offenders, defendants and victims of crime. The Government is committed to building a society with opportunities for all. A key part of that is a CJS which treats all communities equally, is fair, representative and effective in tackling racist crime. This chapter describes the steps CJS agencies have undertaken to address the needs of BME communities and increase their confidence in the CJS. Criminal Justice System Race Unit BME Trust and Confidence The Government’s public service agreements to ‘Re-assure the public, reduce the fear of crime and anti-social behaviour, and build confidence in the criminal justice system (CJS) without compromising fairness” demonstrates its commitment to having a CJS that is fair and can demonstrate that it is fair to all communities. One of the targets contributing to this objective is ‘to reduce the % of people from BME Communities who believe they would be treated worse by one or more CJS agencies.’ This target requires individual CJS agencies to work collectively to improve BME perception of the CJS by 2007/08. The CJS Race Unit is responsible for guiding and monitoring the work of CJS agencies at both national and local level to deliver this target. Although the target deals with perceptions it will only be achieved if BME people’s experience of the CJS is improved. The work outlined by the CJS agencies in this chapter form part of the delivery strategy which concentrates on improving service delivery, providing information to BME communities and engaging with them to improve their experience of the CJS. Working with LCJBs Local Criminal Justice Boards are at the heart of delivering improved services that will impact on BME people’s trust in the CJS. In December 2005, the CJS Race Unit issued the Fairness and Equality in the CJS toolkit to provide LCJBs with a framework to identify and prioritise actions to deliver the target. This is being followed up by a series of regional seminars to help LCJBs review their current activities to improve delivery. Throughout the coming year the Unit will continue to support and assist LCJBs in working with BME communities and will identify and promulgate good practice. Stop and Search The Stop and Search Action Team (SSAT) was created to provide a joined up response to the problem of disproportionality in the use of stop and search by the Police. As a result of the Team’s work in a number of pilot sites around the country, a guidance manual was issued in January 2005. C h a p t e r 6 : What is being done? The manual provides forces with a template to understand the causes of disproportionality and provides guidance and good practice to remove inappropriate disproportionality. This manual is being developed into Practice Guidance by the National Centre for Policing Excellence (NCPE) with a view to publication in June 2006. In addition Her Majesty’s Inspectorate of Constabulary (HMIC) are now using the key points from the manual to inform inspections. The ultimate outcome of this work is a reduction in the levels of inappropriate, disproportionate stops and searches as well as increased BME community confidence in the use of the stop and search powers. It is disappointing that the activity to date has not generated a decrease in disproportionality however a number of new initiatives will be launched in 2006 including a publicity campaign and a Community Manual to accelerate progress. Developing statistics that drive change If Local Criminal Justice Boards are to deliver a fair and effective system to BME service communities they need to understand BME groups’ experiences of the CJS in their area. The statistics presented in this report are one of the main sources of information available on BME perceptions across the CJS and are a potentially powerful tool in driving performance and race equality. The CJS Race Unit is currently taking forward a major programme of work to improve the collection and dissemination of these statistics. As part of this programme the Unit distributed Race Information Packs to all LCJBs in November 2005. The packs presented a selection of race-related management information taken from Section 95 and were intended to provide Boards with an idea of the range and types of information that is available to inform policy making and delivery. The Unit will use the feedback received from Boards to inform the content of future information packs. In addition to improving dissemination they will also be taking forward work to improve data collection. A key element of this will be developing a minimum dataset mapping out the race related information that needs to be collected across the CJS. This work will be undertaken in consultation with principal stakeholders including policy makers, practitioners and academics. Home Office Police The report of the Stephen Lawrence Inquiry highlighted that BME communities feel unfairly targeted by Police Stop and Search Powers. In April 2005, the Police and Criminal Evidence Act was amended to include the recording of all stops (previously only searches were recorded). The implementation of this recommendation was supported by guidance produced by the Home Office, the Association of Chief Police Officers and the Association of Police Authorities. A further recommendation of the report of the Stephen Lawrence Inquiry was to improve services to victims. The police last year introduced a Code of Practice for the reporting and recording of the racist incidents. A Home Office evaluation of the Code was produced in October 2005. The response to its recommendations will be overseen by a Racist Incidents Group set up by the Home Secretary. The National Community Safety Plan 2006-09 (incorporating the National Policing Plan) was published in November 2005 and confirms the continuation of a priority focus on delivering a citizen focused police service. The police are introducing dedicated, visible, accessible and responsive neighbourhood policing teams in all areas in England and Wales by 2008. These teams will forge a new relationship with local people Section 95 Statistics 2004/5 on Race and the Criminal Justice System 31 based on active cooperation and engagement. Forces are also implementing a set of minimum service standards that every member of every community can expect from the police service. The Police and Home Office have continued to focus efforts on improving BME representation in police officers, police staff and the Special Constabulary. Prison Service The Prison Service remains committed to providing equal opportunity, promoting diversity and eliminating racism and other forms of discrimination. Good progress has been made with taking forward the action plan, Implementing Race Equality in Prisons – A Shared Agenda for Change. The plan was agreed with the CRE in 2003, and sets out the work that the Prison Service will undertake to ensure full compliance with the Race Relations (Amendment) Act 2000 and embed the lessons learned from the CRE Formal Investigation. This work now forms part of the Prison Service Race Equality Scheme, which was revised during 2004/05. The scheme, which sets out how the service will meet its general statutory duty under the Race Relations (Amendment) Act 2000 duty, was published in May 2005 and may be viewed at www.prisonservice.gov.uk/abouttheservice/racediversity Improvements in the IT programs have enabled greater use of ethnic monitoring data by the Race Relations Management Team, who have developed race relations key performance targets for both staff and prisoners. Race relations audits include: racist incident reporting; ethnic monitoring data; prisoner survey (measuring the quality of prison life); visitor survey; staff race equality audit; staff racial grievances and complaints; percentage of BME staff and percentage of BME staff in contact roles. Since the introduction of the Employment Targets in 1999, increasing BME representation remains critical to the Prison Service. The information, data and analysis produced by the Quarterly Ethnicity Review the Human Resources Planning Team helps to highlight and pinpoint the areas where the Service still has to work harder. It allows for the continuous tracking of progress and efforts made towards meeting the targets set. Representation at senior officer level is not progressing as well, therefore the Service has recently developed a senior operational managers’ programme, which encouraged applications into the management grades direct. The Service is currently developing a positive action programme for its current BME managers and it continues to support BME staff through the RESPECT network. Implementation of the Quarterly Ethnicity Review by the Human Resources Planning Team has enabled continuous tracking of progress and highlighted areas of need for BME focused activities. Quarterly questionnaires on race equality are cross checked against Her Majesty’s Chief Inspector of Prisons (HMCIP) and Independent Monitoring Board (IMB) reports, as well as Prison and Probation Ombudsman reports. Probation The National Probation Service (NPS) has exceeded the Home Secretary’s employment targets for BME staff and has a workforce where 10.9% of the staff is from BME communities. However, minority ethnic groups are still under represented at the senior management level. To address the issue of the low representation of BME staff at senior management level, the NPS has invested in a positive action leadership programme called ACCELERATE which targets BME managers and provides a two-year personal development programme. The first cohort of this programme commenced in September 2004 with 12 participants and is due to be completed in 2007, 25% of this cohort has 32 Section 95 Statistics 2004/5 on Race and the Criminal Justice System already been successfully promoted to more senior roles within the criminal justice sector. The ACCELERATE programme was short listed for the Personnel Today award (2005) for excellence in career development. A high priority for the National Probation Directorate (NPD) has been to improve probation monitoring statistics on the ethnicity of staff and offenders. Consequently, meaningful comparisons can now be made between ethnic groups to inform policy and determine the quality of service delivery to BME groups. A target of 95% monitoring for all offenders and staff was set in 2005/06 and was almost achieved with an average total of 94% across the two groups. NPD have incorporated ethnic monitoring into a weighted score card performance monitoring management system to ensure continuous improvement in ethnic monitoring statistics. To ensure that probation responds to the needs of BME offenders the NPD has supported the NPS in developing ‘pathfinder programmes’ for BME offenders. These are currently being evaluated. Crown Prosecution Service The Crown Prosecution Service adopted a new equality and diversity policy and strategy in May 2005. As part of this strategy the CPS has introduced key equalities measures into its Area Performance Review System. These key measures focus on hate crime prosecutions and community engagement. Alongside this a number of equalities themed reviews are being undertaken as part of its performance review systems, including one on workforce representation. A Community Engagement Strategy was agreed in May 2005. As part of implementing this strategy the Service is running 3 community engagement pilots in West Yorkshire, Durham, and Thames Valley. These pilots will be independently evaluated and the findings profiled at a national conference in the autumn of 2006. Good Practice Guidance will also be developed from these. Alongside these initiatives the CPS is also deepening engagement with a range of communities through a series of forthcoming regional information, reassurance and listening events with Muslim Communities. A number of initiatives are underway to further equalities in employment including active implementation of a departmental Diversity Delivery Plan to help achieve Senior Civil Service (SCS) workforce diversity targets by 2008. The CPS is also committed to a programme of impact assessments of key employment processes including a recent impact assessment of Performance Appraisal Box marks rating system. An improved electronic recording project for hate crime data will be launched in 2006/07 and in due course this will be developed further to produce more accessible public reports on hate crime prosecutions. A comprehensive impact assessment of the ethnic and gender distribution of changing decisions is currently being undertaken and the CPS aims to publish this assessment in 2006/07. This involves an assessment of 225,000 prosecutors changing decisions, and will be the largest scale assessment of prosecutor decision-making undertaken to date. The CPS intends to review and update its Racist and Religious Crimes Policy in 2006/07 in line with planned developments on incitement to religious hatred. Alongside this the CPS will keep its training programme for prosecutors on racist and religious crimes under review. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 33 Department for Constitutional Affairs The DCA is examining whether and to what extent, the courts system deals fairly and justly with the needs of a diverse and multi-cultural society, and whether it is regarded as fair. Two projects already completed are ethnic minority magistrates’ experience of their role and of the court environment, and ethnic diversity and the jury system. A targeted research project to examine the satisfaction of BME users has also been undertaken. The aim is to understand whether the causes of dissatisfaction are related to the service received or determined by other factors and influences such as their age, gender or the capacity in which they were using the court. The DCA is working to increase the diversity of the judiciary through two key work streams: the Magistrates National Recruitment Strategy (MNRS) and the programme of work that came from the consultation paper “Increasing Diversity in the Judiciary” which was published in October 2004. The Judicial Diversity Programme focuses on three main areas; encouraging applications and raising awareness; removing barriers to appointment, and ensuring that the way the judicial office operates encourages and supports a more diverse judiciary. In addition, the Diversity Programme contains four projects of which three have now been delivered. For example, the Developing Policy Project has been developed and is now implementing the DCA’s Diversity Impact Assessment Tool. The purpose of the tool is to ensure that diversity impact assessments and race equality impact assessments are carried out on all policies to check whether the policy could have an adverse impact on different groups of people. Diversity Impact Assessments (DIAs) are carried out on both internal and external policies. Youth Justice Board In the light of the research by the University of Oxford59 a priority of the Youth Justice Board (YJB) has been to reduce the over-representation of young Black offenders. To this end it has set itself the target of ensuring the all Youth Offending Teams have action plans in place: ● to achieve equal treatment at local level for comparable offences by different ethnic groups; and ● to deliver targeted prevention activity that substantially reduces local differences by ethnicity in recorded conviction rates by March 2008. To achieve this the YJB launched, in November 2004, an audit and planning process to address the continued over-representation of BME groups in the youth justice system. This required YOTs’ and their partner agencies to assess the local pattern of BME disproportionality in pre-court and post-court disposals with data on the local BME population. In summer 2005 action plans were submitted from all YOTs, and YJB regional teams will monitor progress against their stated objectives. In addition, for YOT’s that are struggling to make progress, support will be available from YJB performance improvement consultants. Regional workshops will also take place to showcase and disseminate emerging practice. The YJB has also established a Diversity Board that will be chaired by the Chief Executive Officer and will co-ordinate cross directorate activity to ensure effective co-ordination. 34 Section 95 Statistics 2004/5 on Race and the Criminal Justice System 59 Felizer, M. & Hood, R. (2004). Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System. Youth Justice Board. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 35 Aust, R. & Smith, N. (2003), Ethnicity and drug use: key findings from the 2001/2002 British Crime Survey. Findings 209. London: Home Office. Barclay, G. and Mhlanga, B. (2000) Ethnic differences in decisions on young defendants dealt with by the Crown Prosecution Service. Home Office Section 95 Findings No 1. London: Home Office. Bibi, N., Clegg, M. and Pinto, R. (2005) Police Service strength, England & Wales, 31 March 2005. Home Office Statistical Bulletin 12/05. London: Home Office Research Development and Statistics Directorate. 29 September 2004. Available at: http://www.homeoffice.gov.uk/rds/pdfs05/hosb1205.pdf Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman. Bullock, K. and Tilley, N. (2002) Shootings, Gangs and Violent Incidents in Manchester: developing a crime reduction strategy. Crime Reduction Research Series Paper 13. London: Home Office. Burnley, E. and Rose, G (2002) Racist Offences – how is the Law Working?: the implementation of the legislation on racially aggravated offences in the Crime and Disorder Act 1998. Research Study No 244. London: Home Office. Councell, R. (2005) Offender Management Caseload Statistics 2004, England and Wales. Home Office Statistical Bulletin 17/05. London: Home Office Research Development and Statistics Directorate. December 2005. Available at: http://www.homeoffice.gov.uk/rds/pdfs05/hosb1705.pdf CJS (2005) BME Communities’ Expectations of Fair Treatment by the Criminal Justice System. London: Office for Criminal Justice Reform. CPS (2004) Racist incident monitoring: Annual Report 2003/4. London: Crown Prosecution Service. CPS (2005) Racist incident monitoring: Annual Report 2004/5. London: Crown Prosecution Service. CPS (2005) Annual Equalities in Employment Report 2004/5. London: Crown Prosecution Service. Department for Constitutional Affairs (2005) Consumer Experience of the Criminal Justice System. Volume A: Consumer Engagement. Feilzer, M. & Hood, R. (2004) Differences or Discrimination – Minority Ethnic Young People in the Youth Justice System. Youth Justice Board. FitzGerald, M. (1993) Ethnic Minorities and the Criminal Justice System. Royal Commission on Criminal Justice Research Study 20, London: HMSO. References FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. FitzGerald, M. and Sibbitt, R. (1997) Ethnic Monitoring in Police Forces: A beginning. Home Office Research Study 173. London: Home Office. Hearnden, I. & Hough, M. (2004). Race and the Criminal Justice System: An overview to the complete statistics 2002/3. London: Criminal Justice System (Race Unit). HM Crown Prosecution Inspectorate (2002) Report on the Thematic Review of Casework having a Minority Ethnic Dimension. London: HMCPSI. Home Office (2003) Prison statistics England and Wales 2002. London: Home Office. Home Office (2004) Offender Management Caseload Statistics 2003. London: Home Office. Home Office (2005) Offender Management Caseload Statistics 2004. London: Home Office. Home Office (2005) Race Equality: Home Secretary’s Employment Targets. London: Home Office. Hood, R. (1992) Race and Sentencing. Oxford: Clarendon Press. Jansson, K. (forthcoming). Ethnicity and victimisation; findings from the 2004/05 British Crime Survey. Home Office. John, G. (2003) Race for Justice. A review of CPS decision making for possible racial bias at each stage of the prosecution process. London CPS. Junger-Tas, J. & Marshall, I. H. (1999) The self-report methodology in crime research. In M. Tonry (Ed.), Crime and Justice. A Review of Research. Vol 25. (pp. 291–367). Chicago: The University of Chicago. Kershaw, C., Budd, T., Kinshott, G., Mattinson, J., Mayhew, P. and Myhill, A. (2000) The 2000 British Crime Survey England and Wales. Home Office Statistical Bulletin 18/00. London: Home Office. Moorthy, U.,Cahalin, K. and Howard, P. (2004) Ethnicity and Parole. Home Office Research Findings No 222. London: Home Office. Murphy, R. Wedlock, E. and King, J. (2005) Early findings from the 2005 Home Office Citizenship Survey. Home Office online Report 49/05. www.homeoffice.gsi.gov.uk/rds/citizensurvey.html Murray, L. and Ayres, M. (2005). Arrests for Notifiable offences and the operation of certain police powers under PACE, England and Wales, 2003/04. Home Office Statistical Bulletin 18/04. London: Home Office Research Development and Statistics Directorate. Available at: http://www.homeoffice.gov.uk/rds/pdfs05/sb2105.pdf Nicholas S. and Walker A. (eds), Crime in England and Wales 2002/3: Supplementary Volume 2: Crime, Disorder and the Criminal Justice System – Public attitudes and perceptions. Home Office Statistical Bulletin 2/04. London: Home Office. Page, B., Wake, R., & Hill, R. (in press) Confidence in the Criminal Justice System: explaining area variation in public confidence. Home Office Findings 251. Phillips, C. and Brown, D. (1998), Entry into the Criminal Justice System: a Survey of Police Arrests and Their Outcomes. Home Office Research Study No. 185, London: Home Office. 36 Section 95 Statistics 2004/5 on Race and the Criminal Justice System Phillips, C. & Bowling, B. (2003) Racism, Race and Ethnicity: developing minority perspectives in criminology. British Journal of Criminology 43, no.2. Salisbury, H and Upson, A. (2004) Ethnicity, Victimisation and Worry about Crime: findings from the 2001/02 and 2002/3 British Crime Surveys. London: Home Office Research Findings No 237. Sharp, C. & Budd, T. (2005) Minority ethnic groups and crime: findings from the Offending, Crime and Justice Survey 2003. Home Office online report 33/05. Smith, D.J. & Gray, J. (1985). Police and the Public. London: Gower. White, A. (2002) Social Focus in Brief: Ethnicity 2003. London: ONS. Whitehead, E. (2001) Witness Satisfaction: findings from the Witness Satisfaction Survey 2000. London: Home Office Research Study No 230. Section 95 Statistics 2004/5 on Race and the Criminal Justice System 37 38 Section 95 Statistics 2004/5 on Race and the Criminal Justice System This report has been prepared by the CJS Race Unit, and Research, Development and Statistics in the Office for Criminal Justice Reform (RDS-OCJR). Further copies are available from: Criminal Justice System Race Unit 2 Marsham Street London SW1P 4DF Email: CJSRACE@homeoffice.gsi.gov.uk This publication is available on the Home Office website http://www.homeoffice.gsi.gov.uk/rds Contact Points Published by the Office for Criminal Justice Reform. March 2006. Ref: 274134 
work_rbzrdio2xzcunp6vtffp7frm5e	----	Science Magazine S C I E N C E sciencemag.org 10 APRIL 2015 • VOL 348 ISSUE 6231 1 9 7 exchange between the Americas need to be reconsidered. — HJS Science, this issue p. 226; see also p. 186 DRUG DISCOVERY Allergy drug inhibits viral infection A drug used to dry up a runny nose and itchy eyes may be repurposed for treating hepatitis C virus (HCV). This viral infec- tion often goes undetected, but it can exacerbate liver diseases, including cancer. The fact that allergy-relieving antihistamines can treat HCV was uncovered by He et al. in a screen of a library of approved drugs. Among these, the first-generation antihistamine chlorcyclizine showed highly specific anti-HCV activity in vitro and in mice with ìhumanizedî livers, without evidence of drug resistance, a common problem with antivirals. Moreover, chlor- cyclizine synergized with other anti-HCV drugs such as ribavirin, sofosbuvir, and interferon-α. Antihistamines are widely available, safe, and inexpensive: ideal candidates for use in HCV- endemic countries. — MLF Sci. Transl. Med. 7, 282ra49 (2015). MARS ATMOSPHERE Mapping Mars’ water history We know the water cycle on Earth is complex. Neither is it simple on Mars. Infrared maps of water isotopes made by Villanueva et al. show the distri- bution of H2O and “semiheavy” water (HDO: deuterated water PH O T O : © R O S E M A R Y R O B E R T S / A L A M Y Edited by Sacha Vignieri and Jesse Smith I N O T H E R J O U R NA L S CELLULAR MECHANICS The mechanics of cellular left and right Cells need to distinguish between left and right to interact during collective movement or embryonic development. To reveal the underlying cellular mechanics, Tee et al. studied the organization of actin in human cells using fluores- cence, electron microscopy, and computational simulations. Actin fibers forming the cellular skeleton rearranged themselves from a symmetric to an asym- metric pattern through interplay between two types of fibers. The unidirectional tilting of the radial fibers and swirling of the transverse fibers were driven by containing a mixture of hydrogen isotopes) across Mars. HDO enrichment varies with time and location; for example, irregular isotopic signals associate with different terrain features. The measurements also allow sea- sonal sublimation levels of the northern ice cap to be estimated and thus could be used to reveal past climate behavior. — MMM Science, this issue p. 218 BIOANALYSIS Imaging lipid composition Chemical imaging of cell membranes can be performed with matrix-assisted laser desorption/ionization mass spectrometry (MALDI), but low ionization efficiency often leads to a signal dominated by the main lipid components, such as abundant phosphatidylcholine species. Soltwisch et al. used a tunable laser for post-ionization of neutral species to boost the signal for other membrane com- ponents, such as cholesterol and phospho- and glycolipids. Imaging of cells and tissues with these methods allows differenti- ation based on a more extensive chemical signature. — PDS Science, this issue p. 211 HUMAN GENETICS Chromosome number varies in humans Pregnancy loss is often associ- ated with a loss of chromosome number, a condition known as aneuploidy. When examining aneuploid embryos during in vitro fertilization cycles, McCoy et al. found a large genomic region associated with defects in maternal chromosome number (see the Perspective by Vohr and Green). This region contains a gene, Polo-like Kinase 4 (PLK4), that is known to affect chro- mosome segregation and has variants that correlate with an increased rate of maternal aneu- ploidy. Surprisingly, such variants occur at relatively high levels in human populations and may be under positive selection. — LMZ Science, this issue p. 235; see also p. 180 INFLAMMATION How smoking makes infection worse S moking not only increases your risk of cancer but also increases inflammation and slows down recovery from infections, especially in people who have chronic obstruc- tive pulmonary disorder (COPD). People with severe COPD have elevated levels of the cytokine interleukin-33 (IL-33), a secreted protein that promotes airway inflammation. To determine whether IL-33 triggers exaggerated inflammatory responses in COPD, Kearley et al. exposed mice lacking IL-33 to cigarette smoke and then infected them with influenza. A deficiency in IL-33 protected mice from excessive inflammation and weight loss. Cigarette smoke led to elevated production of IL-33 and altered expression of its receptor in exposed mice, causing lung inflammation to amplify. — KLM Immunity 42, 566 (2015). Ancient Pacific-Caribbean link Smoking increases inflammation and worsens infection Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ sciencemag.org S C I E N C E1 9 8 10 APRIL 2015 • VOL 348 ISSUE 6231 contractile stress and rotational growth. The actin-crosslinking protein controlled the clockwise or anticlockwise dynamics of the actin network, establishing the left-right asymmetry of the cell. — MSM Nat. Cell Biol. 10.1038/ncb3137 (2015). CRIME AND PUNISHMENT Rethink jail for juvenile justice The U.S. criminal justice system is strikingly punitive: The incarcerations-to-convictions ratio is 70% larger than that of the next highest country. The U.S. juvenile incarceration rate is five times larger than that of any other country. But we don’t randomly assign juveniles to jail, and thus it’s difficult to isolate the impacts of incarceration on later-life outcomes, versus the impacts of underlying socio- economic, cognitive, and other factors that influence juvenile criminal behavior as well as education, employment, and other outcomes. Studying 10 years of data on over 35,000 Chicago juvenile offenders, Aizer and Doyle noticed that judges were randomly assigned to juvenile cases, and judges had different tendencies to sentence incarceration versus probation. Assignment to a high– incarceration-rate judge decreased the likelihood of juve- niles completing high school and increased the likelihood of adult incarceration. — BW Quart. J. Econ. 10.1093/ qje/qjv003 (2015). NEURODEGENERATION Deconstructing cell death in MS Oligodendrocytes are often referred to as “support” cells for neurons, but in fact they play a critical role in the transmission of nerve impulses. These cells produce the myelin sheath that surrounds and protects axons in the central nervous system. In multiple sclerosis (MS), this myelin sheath erodes because of an inflammatory reaction that triggers the death of oligo- dendrocytes. Several distinct mechanisms of cell death exist, and understanding which one underlies oligodendrocyte death could lead to new therapies. Studying mouse models of MS, Ofengeim et al. find that oligodendrocytes die by a regu- lated process called necroptosis. A small-molecule inhibitor of a protein kinase that mediates necroptosis prevented oligo- dendrocyte death in the mouse models. — PAK Cell Rep. 10, 1836 (2015). SURFACE IMAGING Submolecular resolution in 3D Surface probe microscopy has recently achieved submolecular resolution with metal tips made atomically sharp by decorating them with adsorbed molecules such as carbon monoxide. This method works well with adsorbed molecules that are small or flat. Moreno et al. now show how to achieve subatomic resolution in atomic force microscopy with commercial silicon tips, for three- dimensional structures such as absorbed fullerene molecules or the step edges of oxide surfaces. The van der Waals interac- tion is mapped with the tip a few nanome- ters above the surface in a closed feedback loop. A second higher- resolution scan with an open feedback loop follows this map with a constant offset distance that is adjusted to provide high resolution. — PDS. Nano Lett. 10.1021/nl504182w (2015). PHYSICS Pairing in an off-kilter atomic gas In a process called Cooper pair- ing, two electrons of opposite spin and momentum form a pair and join a larger “condensate” to flow effortlessly through a superconducting material. In cold atomic gases, the atomic state plays the role of the spin. But what happens if there is a different number of atoms in the two spin states, so that pair- ing cannot be perfect? Ong et al. tackled that question for 6Li atoms trapped in a weakly coupled array of pancake- shaped clouds. As they cranked up the interaction between the atoms and increased the relative number of minority spins, the gas in each pancake separated into a core of paired spins surrounded by the majority atoms. — JS Phys. Rev. Lett. 114, 110403 (2015). COMMUNITY ECOLOGY Measuring effective dispersal D ispersal fundamentally shapes ecological communities and maintains biodiversity, yet it is extremely difficult to quantify. Estimating seed dispersal effectiveness (SDE) requires measurement of both the number of seeds dispersed and the probability of successful germination. González-Castro et al. labori- ously measured the SDE of frugivorous lizards and birds as dispersers of seeds over 6 years in plant communities on the oceanic island of Tenerife. Their results allowed for compari- sons between the SDE of the two main frugivore groups for different plant species and different communities (such as woodland and shrubland), revealing the networks of mutualis- tic interactions that underpin community persistence. — AMS Ecology 96, 808 (2015). Gallotia galloti is an important seed disperser on Tenerife IM A G E S : (T O P T O B O T T O M ) © C U L T U R A R M / A L A M Y ; C . M O R E N O E T A L ., N A N O L E T T E R S ( 10 M A R C H 2 0 15 ) © 2 0 15 A M E R IC A N C H E M IC A L S O C IE T Y Published by AAAS o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/ Rethink jail for juvenile justice Brad Wible DOI: 10.1126/science.348.6231.197-d (6231), 197-198.348Science ARTICLE TOOLS http://science.sciencemag.org/content/348/6231/197.4 CONTENT RELATED file:/content/sci/348/6231/twil.full PERMISSIONS http://www.sciencemag.org/help/reprints-and-permissions Terms of ServiceUse of this article is subject to the is a registered trademark of AAAS.ScienceScience, 1200 New York Avenue NW, Washington, DC 20005. The title (print ISSN 0036-8075; online ISSN 1095-9203) is published by the American Association for the Advancement ofScience Copyright © 2015, American Association for the Advancement of Science o n A p ril 5 , 2 0 2 1 h ttp ://scie n ce .scie n ce m a g .o rg / D o w n lo a d e d fro m http://science.sciencemag.org/content/348/6231/197.4 http://www.sciencemag.org/help/reprints-and-permissions http://www.sciencemag.org/about/terms-service http://science.sciencemag.org/ 
work_rdiktqexevgtbgaaopnu2hsbja	----	Derrida, Semiotics and Justice Jacques de Ville Published online: 9 April 2010 � Springer Science+Business Media B.V. 2010 This Special Issue of the International Journal for the Semiotics of Law celebrates the contribution of Jacques Derrida (1930–2004) in relation to semiotics and justice. The brief to contributors was to specifically explore the relation between the ‘earlier’ texts of Derrida on language and the ‘later’, seemingly more politico- ethical texts such as ‘Force of law’ [1, pp. 228–298]. All the essays in the collection point to the continuity in Derrida’s thinking which appears from a careful reading of these texts, thereby contesting the idea of an ‘ethical turn’. We are particularly fortunate to publish as part of the Special Issue, for the first time in English, an interview with Derrida, stemming from 1998, headed ‘‘The tragic, the impossible and democracy’’. In the interview Derrida clarifies a number of issues in relation to his thinking on ethical, legal and political issues. He furthermore provides added insight, ably spurred on by the interviewers, regarding his relation to Heidegger, Levinas, Freud, and Schmitt and, moreover, gives a lucid reading of some of his own texts. The whole interview is worth giving minute attention to. If one had to highlight something specific, Derrida’s reflections on the impossible deserve mention in the present context. In ‘Force of law’, Derrida specifically notes that ‘‘[j]ustice is an experience of the impossible’’ [1, p. 244]. As is pointed out by Derrida in the interview, the impossible ‘is’ that which we ‘desire’, which calls on us, and, moreover, puts us in motion. The two references to Freud’s death drive in close relation to the impossible in the interview are of critical importance in this respect. In the interview Derrida furthermore cautions that one should be careful to distinguish between ‘the impossible’, which is at stake in deconstruction, and that which is ‘merely impossible’. This important distinction is unfortunately very often ignored in commentaries on Derrida. The impossible is also called by other names in the interview, for example madness, the democracy to come, absolute hospitality, the night, the monstrous, chaos, and the future as such. J. de Ville (&) Faculty of Law, University of the Western Cape, Cape Town, South Africa e-mail: jdeville@uwc.ac.za 123 Int J Semiot Law (2010) 23:239–242 DOI 10.1007/s11196-010-9151-3 An important question posed to Derrida in this respect is what one’s attitude should be concerning this monstrosity. Should it be embraced or does one need to stand firm in the face of it? As appears from Derrida’s response, the answer one gives to this question is dependent on one’s stance towards the metaphysics of presence. Should one view it from within metaphysics, the tendency will be to view the monstrosity as something bad, such as Hobbes’s war of all against all, which needs to be resisted. However, if one understands the monstrous in terms of a structural law which is always at stake, a double law, as something which simply happens, which overtakes us beyond metaphysical oppositionality, an affirmation is instead called for. As Derrida puts it in the interview: I affirm the impossible, that is, I desire this pure hospitality, even when I cannot afford it. Even when I cannot experience it as such, I say ‘‘yes’’ to the possibility of the impossible. All of the essays in this Special Issue engage in some way or another with this affirmation of the impossible in Derrida’s thinking, as well as its intersection with law and language. Marian Hobson in ‘‘Laws and universality, laws and history’’ finds a strategy at work in ‘Force of law’ which is analogous to two of Derrida’s earlier (1967) essays on Lévi-Strauss and on Foucault. She points specifically to Derrida’s insistence in his reading of these texts on drawing a rigorous distinction between what is universal and what merely contingent. Insofar as Levi-Strauss is concerned, Hobson reiterates Derrida’s detection in Of grammatology [2] of a contradiction in his (Levi-Strauss’s) condemnation of writing. These contradictions are as we know not simply accidental, but necessary insofar as they show the difficulty metaphysics has in dealing with writing, which it associates with the loss of the proper, with blind and empty repetition, with death [2, pp. 17, 25]. Associating writing with violence (and here I am glossing Hobson’s text) Levi- Strauss dreams of a Rousseauian state of nature, associated with the non-violent purity of the voice, with full and immediate self-presence [2, p. 115]. The desire for self-presence (expressed for example in the prohibition of the revealing of ‘proper names’) is a (universal) secondary reaction against this originary violence, the loss of self-presence, of the proper, the inscription always-already within a system of differences, followed at times (contingently) by a third violence (here, the revealing of proper names). We also find this (universal) structural law operating in Foucault’s discourse on madness, as Hobson points out. Foucault views the relation between madness and reason in historical and thus empirical terms, and consequently remains blind to the fact that language itself is structured in terms of reason, having to exclude ‘madness’ from the beginning, from its moment of awakening. Foucault thus seeks to write a history of madness, to let madness itself speak, by relying on the language of reason. As Hobson, however, notes, ‘‘[t]he separation of madness and reason cannot … be treated as an actual historical event’’. This ‘contradiction’ again does not simply constitute an oversight on the part of Foucault, but shows the operation of metaphysics, being necessarily blind to its own (continuing) suppression of total madness (‘liberation from reason’ as Hobson has it). In ‘Force of Law’ Derrida shows that a similar denegation is at work in the positing of a legal system. That which is necessarily excluded in law’s constitution, in a similar way in 240 J. de Ville 123 which Levi-Strauss seeks to exclude writing, and Foucault the madness constitutive of language, is referred to by Derrida as ‘justice’. In ‘‘Law, genre and the voice of the friend’’ Elina Staikou invokes the double meaning of law, and enquires with reference to Derrida’s earlier texts specifically into the law before the law, or what Derrida elsewhere refers to as justice or friendship. The title furthermore alludes to Derrida’s essay ‘‘The Law of genre’’ [3, pp. 221–252] as well as Heidegger’s elusive invocation of the ‘voice of the friend’ in Being and time [4]. Law understood as genre, refers to all determined forms of law, including natural law and positive law. As Staikou points out, these determined forms of law stand in tension with what can be termed ‘‘degeneres- cence’’, that is, ‘‘a law of impurity at the heart and origin of all law’’. She uses this notion and others forming part of the same (open) chain of ‘‘new’’ concepts, such as the trace, sexual difference, general phantasmatics, and generalised fetishism, to explicate what is at stake in ‘the law’ (understood in the above sense) as well as in Derrida’s analysis of friendship. Staikou traces Derrida’s views on friendship and justice as far back as his deconstruction of the Saussurian sign in Of grammatology [2]. Saussure’s sign, as Staikou points out, makes a natural link between the voice and sense, which corresponds with that traditionally made between phusis and nomos, natural birth and citizenship. The sign constitutes a reduction and determination of the trace, like the symbol, nature and law. The trace, Staikou notes, ‘‘can never be erased without leaving a trace of its own erasure, which it thus bears in its very structure and which remains impossible to master’’. Heidegger’s ‘‘voice of the friend’’ is taken up towards the end of the essay and it is specifically when Staikou refers to Derrida’s reading of this passage as wide enough to include the voice of the stranger and adds that ‘the call comes ‘‘as if it dictated a kind of law’’‘, that one is tempted to read this in close association with Freud and more specifically the ‘desire for the impossible’ that Derrida speaks of in the interview included in the Special Issue. At stake in Derrida’s analysis of friendship, as she points out, is ‘‘a friendship prior to friendships at the origin of all law’’. Linnell Secomb in ‘‘Derrida’s other ends of man’’ focuses on three of Derrida’s texts, which were all ‘events’ in New York and which reflect on questions of the greatest political, ethical and legal importance: ‘The ends of man’ [5, pp. 109–136], presented in New York in 1968 at the time of the Vietnam war; ‘Force of law: The mystical foundation of authority’ [1], presented in New York in 1989 and which partly deals with the holocaust; and an interview with Borradori in Philosophy in a time of terror [6], again in New York, shortly after the events of September 11, 2001. Linking these texts together, the author shows the continuity in Derrida’s thinking in relation to humanism and the Enlightenment. Starting with ‘Force of law’, the author points to the inextricable relation Derrida posits between justice and law, as well as his expression of support for the emancipatory ideals and for human rights. At the same time Derrida seeks to rethink these in a radical way. Secomb reads Derrida as adopting a similar stance in relation to humanism in ‘The ends of man’, which is the main focus of her essay. Analysing Derrida’s reading of Hegel, Husserl and Heidegger, she shows how humanism is both exceeded and retained in their thinking, the latter because of their continuing reliance on metaphysical concepts. The author reads Derrida as not simply opposing or rejecting humanism, Derrida, Semiotics and Justice 241 123 but as making a ‘non-oppositional deconstructive gesture in relation to humanism’ a position which is ‘more-than-humanist’. According to the author a similar approach is adopted by Derrida in the interview in Philosophy in a time of terror in relation to the state. It is not enough to simply oppose the state. Instead it should be rethought in its relation to autoimmunity or what can also be termed unconditional hospitality. Secomb concludes with a reading of the post-scriptum of ‘Force of law’, showing how Derrida’s reading of Benjamin assists us in understanding the ‘nature’ of the deconstructive gesture, as compared to one of destruction. One can detect the beginnings of a debate about the postscript in ‘Force of law’ from the texts of Secomb and Hobson, which Staikou incidentally elaborates on elsewhere [7]. Jacques de Ville in ‘‘Revisiting Plato’s pharmacy’’ analyses a text of Derrida which played an important role in the early reception of Derrida in the legal context. By analysing the relation between this text of Derrida and a number of Freud’s texts relating to dreams, sexuality, desire, and death, the author shows the importance of a certain reading of Freud in understanding ‘Plato’s pharmacy’ [8, pp. 67–186]. In the essay, the speech/writing opposition is explored again, and Freud’s death drive is invoked to understand the notion of arche-writing which according to Derrida lies at the ‘pre-origin’ of this opposition. The pharmakon and the pharmakos, as well as Derrida’s deconstruction of the metaphysical inside/outside distinction, can similarly be better understood with reference to Freud’s reflections on the death drive. The movement from mythos to logos is likewise shown to involve a ‘casting out’ of that which is on the ‘inside’, to the ‘outside’, that is, of (the desire for) death. In comparing this early text of Derrida with Force of law [1], the author shows that the pharmakon has a similar structure as ‘justice’. In the case of both ‘concepts’, a desire for presence, privileged by metaphysics, as well as a ‘desire’ for death, ‘suppressed’ by metaphysics, are at stake. In Derrida’s analysis of these concepts it is shown that the two desires are in a differantial relation with each other. Both these desires in other words ‘inhabit’ these concepts and at the same time lead to their auto-destruction. This has extremely important implications for law, ethics, and politics. Acknowledgments A word of thanks must go to Anne Wagner for initiating this project, to Michael Naas for his advice, to Danie Goosen for his support, and to the contributors for their efforts. References 1. Derrida, Jacques. 2002. Acts of religion. New York: Routledge. 2. Derrida, Jacques. 1974. Of grammatology. Baltimore: The John Hopkins University Press. 3. Derrida, Jacques. 1992. Acts of literature. New York: Routledge. 4. Heidegger, Martin. 1962. Being and time. San Francisco: HarperCollins. 5. Derrida, Jacques. 1982. Margins of philosophy. Chicago: University of Chicago Press. 6. Borradori, Giovanna. 2003. Philosophy in a time of terror: dialogues with Jürgen Habermas and Jacques Derrida. Chicago: University of Chicago Press. 7. Staikou, Elina. 2008. Justice’s last word: Derrida’s post-scriptum to Force of law. Derrida Today 1: 266–290. 8. Derrida, Jacques. 2004. Dissemination. London: Continuum. 242 J. de Ville 123 Derrida, Semiotics and Justice Acknowledgments References << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated v2 300% \050ECI\051) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 149 /ColorImageMinResolutionPolicy /Warning /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 149 /GrayImageMinResolutionPolicy /Warning /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 599 /MonoImageMinResolutionPolicy /Warning /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /CreateJDFFile false /Description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> /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e9ad88d2891cf76845370524d53705237300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc9ad854c18cea76845370524d5370523786557406300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /CZE <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> /DAN <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> /ESP <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> /ETI <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> /FRA <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> /GRE <FEFF03a703c103b703c303b903bc03bf03c003bf03b903ae03c303c403b5002003b103c503c403ad03c2002003c403b903c2002003c103c503b803bc03af03c303b503b903c2002003b303b903b1002003bd03b1002003b403b703bc03b903bf03c503c103b303ae03c303b503c403b5002003ad03b303b303c103b103c603b1002000410064006f006200650020005000440046002003c003bf03c5002003b503af03bd03b103b9002003ba03b103c42019002003b503be03bf03c703ae03bd002003ba03b103c403ac03bb03bb03b703bb03b1002003b303b903b1002003c003c103bf002d03b503ba03c403c503c003c903c403b903ba03ad03c2002003b503c103b303b103c303af03b503c2002003c503c803b703bb03ae03c2002003c003bf03b903cc03c403b703c403b103c2002e0020002003a403b10020005000440046002003ad03b303b303c103b103c603b1002003c003bf03c5002003ad03c703b503c403b5002003b403b703bc03b903bf03c503c103b303ae03c303b503b9002003bc03c003bf03c103bf03cd03bd002003bd03b1002003b103bd03bf03b903c703c403bf03cd03bd002003bc03b5002003c403bf0020004100630072006f006200610074002c002003c403bf002000410064006f00620065002000520065006100640065007200200035002e0030002003ba03b103b9002003bc03b503c403b103b303b503bd03ad03c303c403b503c103b503c2002003b503ba03b403cc03c303b503b903c2002e> /HEB <FEFF05D405E905EA05DE05E905D5002005D105D405D205D305E805D505EA002005D005DC05D4002005DB05D305D9002005DC05D905E605D505E8002005DE05E105DE05DB05D9002000410064006F006200650020005000440046002005D405DE05D505EA05D005DE05D905DD002005DC05D405D305E405E105EA002005E705D305DD002D05D305E405D505E1002005D005D905DB05D505EA05D905EA002E002005DE05E105DE05DB05D90020005000440046002005E905E005D505E605E805D5002005E005D905EA05E005D905DD002005DC05E405EA05D905D705D4002005D105D005DE05E605E205D505EA0020004100630072006F006200610074002005D5002D00410064006F00620065002000520065006100640065007200200035002E0030002005D505D205E805E105D005D505EA002005DE05EA05E705D305DE05D505EA002005D905D505EA05E8002E05D005DE05D905DD002005DC002D005000440046002F0058002D0033002C002005E205D905D905E005D5002005D105DE05D305E805D905DA002005DC05DE05E905EA05DE05E9002005E905DC0020004100630072006F006200610074002E002005DE05E105DE05DB05D90020005000440046002005E905E005D505E605E805D5002005E005D905EA05E005D905DD002005DC05E405EA05D905D705D4002005D105D005DE05E605E205D505EA0020004100630072006F006200610074002005D5002D00410064006F00620065002000520065006100640065007200200035002E0030002005D505D205E805E105D005D505EA002005DE05EA05E705D305DE05D505EA002005D905D505EA05E8002E> /HRV (Za stvaranje Adobe PDF dokumenata najpogodnijih za visokokvalitetni ispis prije tiskanja koristite ove postavke. Stvoreni PDF dokumenti mogu se otvoriti Acrobat i Adobe Reader 5.0 i kasnijim verzijama.) /HUN <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> /ITA <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> /JPN <FEFF9ad854c18cea306a30d730ea30d730ec30b951fa529b7528002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b4f7f75283057307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a306b306f30d530a930f330c8306e57cb30818fbc307f304c5fc59808306730593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020ace0d488c9c80020c2dcd5d80020c778c1c4c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /LTH <FEFF004e006100750064006f006b0069007400650020016100690075006f007300200070006100720061006d006500740072007500730020006e006f0072011700640061006d00690020006b0075007200740069002000410064006f00620065002000500044004600200064006f006b0075006d0065006e007400750073002c0020006b00750072006900650020006c0061006200690061007500730069006100690020007000720069007400610069006b007900740069002000610075006b01610074006f00730020006b006f006b007900620117007300200070006100720065006e006700740069006e00690061006d00200073007000610075007300640069006e0069006d00750069002e0020002000530075006b0075007200740069002000500044004600200064006f006b0075006d0065006e007400610069002000670061006c006900200062016b007400690020006100740069006400610072006f006d00690020004100630072006f006200610074002000690072002000410064006f00620065002000520065006100640065007200200035002e0030002000610072002000760117006c00650073006e0117006d00690073002000760065007200730069006a006f006d00690073002e> /LVI <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> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor prepress-afdrukken van hoge kwaliteit. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /POL <FEFF0055007300740061007700690065006e0069006100200064006f002000740077006f0072007a0065006e0069006100200064006f006b0075006d0065006e007400f300770020005000440046002000700072007a0065007a006e00610063007a006f006e00790063006800200064006f002000770079006400720075006b00f30077002000770020007700790073006f006b00690065006a0020006a0061006b006f015b00630069002e002000200044006f006b0075006d0065006e0074007900200050004400460020006d006f017c006e00610020006f007400770069006500720061010700200077002000700072006f006700720061006d006900650020004100630072006f00620061007400200069002000410064006f00620065002000520065006100640065007200200035002e0030002000690020006e006f00770073007a0079006d002e> /PTB <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> /RUM <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> /RUS <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> /SKY <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> /SLV <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> /SUO <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> /SVE <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> /TUR <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> /UKR <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> /ENU (Use these settings to create Adobe PDF documents best suited for high-quality prepress printing. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) /DEU <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> >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToCMYK /DestinationProfileName () /DestinationProfileSelector /DocumentCMYK /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles false /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [595.276 841.890] >> setpagedevice 
work_ree4nwono5g27lgqv4mna2m2f4	----	Request unsuccessful. Incapsula incident ID: 76000190747254900-843133704053982408 
work_rh26v5oepzflhpgqhf35rxim34	----	Social Justice: History, Purpose and Meaning SOCIAL SCIENCE AND PUBLIC POLICY Social Justice: History, Purpose and Meaning Allan C. Ornstein1 Published online: 27 October 2017 # Springer Science+Business Media, LLC 2017 Social scientists study social mobility in order to ascertain the relative openness or fluidity of a social structure. They are inter- ested in the difficulties different persons or groups experience in acquiring the goods and services that are valued in the culture and may be acquired through unequal contributions. In ascription societies, the stratification system is closed to individual mobility because prestige (or status) is determined at birth. The amount of education one will receive, the occupational status one will enter, one’s income and one’s whole lifestyle cannot be changed. In an open-class society, although people start with different advantages, opportunities are available for them to change their initial positions. The life chances of a wel- fare recipient’s son born in the slums differ considerably from those of a banker’s son born in the suburbs. Although the playing field is tilted and stacked against the slum child, in an achievement-oriented society, the former can achieve as much or more than the latter. The emphasis on vertical social mobility in the American social structure is one of the most striking features of our class system—and the basis for what we often call the BAmerican dream.^ Kurt Mayer, in Class and Society, puts it this way: BThe United States has placed greater emphasis on social mobil- ity than any other large nation in modern times. Americans have firmly proclaimed the idea of equality and freedom of achieve- ment and have acclaimed the large numbers of individuals who have risen from humble origins to positions of prominence and affluence.^ The believe in opportunity is strongly embedded in the American culture, a view promulgated in the stories of Horatio Alger and songs like BRags to Riches.^ Most Americans would accept the above analysis of mo- bility and opportunity. But that’s not how the world works: For some 5000 years of recorded history, until the late eigh- teenth century, the ordinary person (nearly 99% of the popu- lace) has lived on the edge of starvation, slightly above sub- sistence level, with no rights and no justice. The Ancient World From the beginning of civilization to the American Revolution, the monarchs, priests, and warlords (later the no- bility class) ruled the world. Economic growth would enhance the wealth of those who were already rich or powerful; the masses were little more than slaves, serfs, peasants, or chat- tel—who worked until death or disablement and whose life expectancy was 30 to 35 years—depending on the century and society. Behavior was grounded in appetite, or desire and self- interest. Those with power and wealth sought to retain their position, and there was minimal or no opposition by working and subordinate people who lacked the ability to oppose what was perceived as the natural order. Nothing could be done to change it, and that is how the world existed for centuries. The idea that humans have rights is a relatively new concept—not more than 350 years old. Heredity privilege governed society and those fortune by birth were expected to benefit at the expense of the working masses who were limited by their unprivileged birth. Intelligence or any other human strength had to be extraordi- nary before it could count for much in comparison to heredity privilege. Each person, relying on traditions of birthright and background and his own resources, labored within a fixed, This article is dedicated to Sophia and Carissa who will eventually come to understand the meaning and implications of the article below. * Allan C. Ornstein allanornstein@yahoo.com 1 School of Education, Sullivan Hall, 5th Fl, St. John’s University, 8000 Utopia Parkway, Queens, NY 11439, USA Soc (2017) 54:541–548 https://doi.org/10.1007/s12115-017-0188-8 mailto:allanornstein@yahoo.com http://crossmark.crossref.org/dialog/?doi=10.1007/s12115-017-0188-8&domain=pdf stratified society. The rewards went to the rich and powerful, while the ordinary person worked from dawn to dusk and lived in poverty and squalor. The superiority of civilization over barbarianism did very little to change the miserable con- ditions of working people. In short, life for the common per- son was brutal and short. The masses were controlled by those who ruled. Might made right; there was no rule of law. Human rights or social justice were nonexistent. Plunder and rape, starvation and war, characterized the flow of events. With the exception of the Greeks and Romans, all the great civilizations of the ancient world would fall under the aristocratic rule of monarchs and emperors, supported with an entrenched and corrupt nobility or property class, where the mass were either slaves, man- ual laborers or peasant farmers who toiled until their death. The vast majority of people were nothing more than disposable units of production kept alive at the subsistence level. Their function was to keep the system running. Their wages or economic rewards would main- ly cover the cost of their daily existence so they could produce the next generation of children who would be laborers or till the land. People lived by war and con- quest and developed first from warlike families which grew into clans and tribes, cemented by blood, which then grew into small villages and settlements and then city-states and monarchies and kingdoms. The warlords who commanded armies were paid by monarchs in gold, property and for titles in exchange for their loyalty. These warring leaders obtained heredity titles and land, and thus transformed into the Bgentry^ or nobility class. They gained recognition for possession of goods and people, as well as military valor. The masses—whether they were slaves or serfs, peasant farmers or laborers—surrendered their rights and freedom to those who could provide security and protect them from plunder and facilitate their survival needs. People were willing to live in a society where government had a heavy hand, even in an authoritarian order, so long as they knew they could live in relative safety; their goal was not to be raped or brutalized by stronger people and roaming armies— and to have food on the table. What we are describing here is a gloomy and brutal world—and why people are often willing to give up their freedom, including their rights and opportunities. Civilization brought a degree of peace and security for the masses, compared to the age of barbarianism. In a nut shell, a social order accompanied by a freedom of fear, plunder and rape takes precedence over economic possessions and prizes and even human rights. In a Hobbesian world, there is no moral high ground. People of power and property seek their own self-preservation and combine by marriage and alliance to obtain more power and property. They act as a force for change at the expense of less powerful people who are just trying to live day-to-day and feed themselves. Our Western Heritage: The Greeks and Romans Now ancient Greece and Rome were a slightly different story. Their development was a variation of this theme, from barbar- ianism to civilization. But their political system was cemented by human agreement. Citizens had a political voice among ruling elites, rather than the simple bloodline and hereditary succession and the complete domination of the masses in the ancient civilizations that preceded them. In the Greek era, a distant mirror of the politics of our own age, it was believed that the citizens had certain rights and civic duties—and could argue for or against any proposition in the marketplace of ideas—the courts, the public arena, etc. Plato’s Republic fashioned a plan for a perfect state ruled by an intellectual elite of philosopher-kings—not a money elite or hereditary aristocracy. Society existed to cultivate truth and virtue in its inhabitants, based on assumptions that only knowledgeable men should rule and that all inhabitants who had basic rights should contribute to the general welfare according to their intel- lectual capacity and particular aptitude. Education, not privileged birth, was the major vehicle for defining the social and economic relations of the residents in Plato’s Republic. The educational system played a selective role as it rated intellectual aptitude and sorted children into future categories: philosopher-kings, auxiliaries and soldiers, and workers. Once assigned to a class, individuals received the appropriate education assigned to their social-economic position—and mobility was frozen. Plato be- lieved that each class would fulfill a necessary function and con- tribute to the common good. Such a society, he believed, would be harmonious. Even now, both liberal and conservative thinkers, love to make comparisons between the ancient Greeks and our Western heritage. To some extent, we are all Greeks—at least in terms of our culture and political beliefs. Americans, I be- lieve, are more likely to agree with a dead Greek poet or philosopher than the best known lawyers or social scientists of the modern world to bolster an argument or advocate a point of view. We think the ancient scholars from the Greek islands spoke with less spin (and more virtue) than modern politicians and policymakers. This view is especially seen in the writings of traditional educators and philosophers who advocate the classics and great books approach to education. It would be nice to envision America as the sole heir of Athens—where democracy first flourished—and to be a champion of moral virtue and humanitarianism. But we are also Romans. The same land that gave us Cierco and Virgil, and forged the foundations of our Republic, forced humans (gladiators) to square off against each other and against wild animals. It is true that Cierco had climbed from relatively humble surroundings to the highest offices of the Roman Empire. With Cierco’s death, however, more precisely his assassination, the Empire lost its most staunchest legal advo- cate and political conscience—and soon fell under the 542 Soc (2017) 54:541–548 autocratic rule of a series of notorious and corrupt emperors who brought ruin and decay to Roman society. In his last years of life, Cierco warned the Senate about patrician greed and class warfare, and to shame his colleagues in the Senate about growing inequality between the patrician and plebian classes. The orator’s words ring loud today: BA belief has become established—and harmful to the Republic…that these courts, with you senators as the jury, will never convict any man, however guilty if he has sufficient money.^ We must also read Tacitus in terms of Bdiminutive rivalries.^ Strong men will trample weak men in war, politics or business affairs Bas long as there are prizes to contend for which move their avarice or their ambition.^ We overlook the fact that Greek and Roman society, like all the previous ancient societies, were built on the backs of slaves, and only a minority of Greeks and Romans had the rights and privileges described by the great Greek and Roman philosophers. We love to trace our philosophical thoughts to Greece and Rome, but we ignore that both civilizations be- lieved in a government run by the well educated and property class—nothing more, if I may add, than an oligarchy—and what later would be called the European nobility. The expectation remained in Europe, and the rest of the world (except America), that the masses were destined to live at the brink of starvation, famine and disease. This was the way it had been since the dawn of civilization. The human condition was characterized first by chaos and then misery— as the strong plundered the weak. Economic life was a strug- gle, pure and simple. Life was brutal and short, void of human rights or justice. The idea of a social contract between government and the people or that people had natural rights and could live a de- scent life, with opportunities for improving their condition, was considered illogical and contrary to the norms of society. It violated the customs and traditions of the relations that bounded the Church and the faithful, Prince and subject peo- ple, property owner and peasant, master and servant. Equally disturbing was that in the normal course of events ordinary people did not expect anything but misfortune and privation, nor did they expect significant improvement in their social status or standard of living. From the beginning of recorded history, the workers and weaker members of society expected to be pressed down and exploited. The majority opinion was that the passions of men did not conform to the ideas of rea- son, fairness or justice; hence, there was the uncritical accep- tance of the selfish nature of man—and that the strong would prey over the weak. A slightly more optimistic current took hold in America, spearheaded by political leaders who were influenced by the humanitarian ideas of the Age of Enlightenment. Still, the concepts of slavery and indentured servants existed and were woven into the social order during the colonial and post- colonial era. The platitudes of moral behavior, the common good, and helping the less fortunate (Kant’s doctrines), the natural rights of men (Voltaire’s idea), a social contract be- tween government and the people (Rousseau’s dictum), the notion of Blife, liberty and property^ (Locke’s statement) and the substitution of property for Bpursuit of happiness^ (Jefferson’s modification) were all abstract ideas that went against the tide of opinion and the dictates of reason prior to the American Revolution. In Europe Locke, Voltaire, and Rousseau were considered extremely radical among their contemporaries, promoting ideas based on a false and untenable conception of human nature. In some ways they were the mouse that roared. Few people of power and property took them seriously, but even- tually their writings began to seep into discussions at the tav- erns and coffee shops of Geneva, London and Paris. Despite the American and French Revolution, the upper classes in both the Old and New World did not subscribe to these doc- trines, nor did they have faith and/or respect in the common people or the rights of the people. In fact, Thomas Jefferson was considered a traitor to the class interests of Southern plan- tation owners and northern bankers, similar to the way Franklin Roosevelt more than 150 years later was viewed by the Brahmins and business class when he implemented civil- ian work programs, unemployment insurance and Social Security for Americans during the Great Depression. During the Industrial Revolution which started in merry- old England around the time of the American Revolution, special skills and special abilities of people resulted in slightly higher wages than the norm. But the fixed economic system and social traditions of prior societies directed toward the past remained intact, rather than toward a future which men them- selves might shape. The amount of people who rose from pittance to what might be called middle class was miniscule in numbers compared to the masses who remained poor and destitute. Actually, the Industrial Revolution increased inequality be- tween the mercantile and manufacturing class with the labor and working class because the vast portion of wealth attribut- ed to economic growth went to the economic elite, not the masses. To be sure, a rising tide does not always lift all boats in the water, not when the surrounding environment or custom is fixed and not when a person’s position in society is consid- ered from a static position as it was viewed for centuries. We are not all in the same boat, as Jack found out the hard way in the movie Titanic. No doubt the new industries allowed a tiny number of entrepreneurial people to accumulate capital and equipment. Thus a few people endowed by nature, that is by strength and cunning, were able to take advantage of the fruits of their power and abilities. This new concept of competition and productivity led to nineteenth century Darwinist thinking, that is Bsurvival of the fittest^ and Herbert Spencer’s dictum, the Blaw of the jungle.^ Such ideas could be viewed as an outgrowth of the ancient Soc (2017) 54:541–548 543 world which set man against man in the pursuit of power, prestige and wealth—and left the masses to fend for them- selves relative to their state of nature. This idea was modified in the New World, whereby common people could success- fully compete and fit well into the American landscape, large- ly because of the frontier experience, the abundance of free land and natural resources, the constant flow of immigrants, and the long-favored notion of progress and change. Moreover, there was no history of warlords, family lineage or bloodlines; the land had not been carved up by centuries of war and strife, by warlords who later became known as Dukes, Earls, and Barons. The point is that in the U.S., there was so much land and resources for the taking that it did not create a zero-sum game between the power elite and the common person; the people with new powers and property allowed the masses to accumu- late their own riches because there was so much land available for anyone who was willing to risk the unknown and work hard. BSurvival of the fittest^ eventually blended into the folk- lore of the West and later the customs of the Gilded Age. The picture of the self-made man of the nineteenth century, epito- mized by the robber baron, warped into Ayn Rand’s book, Atlas-Shrugged, published in 1957. In the twentieth century, Rand’s image of the self-reliant, egotistical person rejected the idea of the common good, altruism and helping less fortunate people. In both centuries, however, the capitalist system evolved from the brutal conditions of the ancient world: The strong survived and the weak barely existed or perished. Life was a struggle, a part of nature—where every group, every animal or human was always in a ceaseless struggle with its environment and its species. Material wealth at the expense of Bthe herd^ or ordinary people was common. Greed was and still is considered good; it’s the fuel or engine that supposedly drives the economy. There is little concern for the working person—as well as for the weak, the old, the disabled, etc. The Promised Land But America is the land of opportunity, where peoples’ aspi- rations and dreams come true, where ordinary citizens have rights guaranteed by law. Immigrants fleeing from oppressive governments or economic hardship can start a new life and have multiple chances to succeed. Keep in mind our history: The ideas of the Enlightenment, when transported across the ocean, prevailed over authoritar- ianism and theocracy. Thank the heavens that a group of middle-aged rebels were willing to put their lives on the line, and thank Thomas Jefferson who wrote the Declaration of Independence and said the right words at the right time and provided the framework that gave us the natural right to es- tablish the rights of people and separate the church and state. Of course, the English aristocrats and conservatives did not see it the same way. Harping on the vulgarity and clumsiness of their former colonialists, one English novelist some 50 years ago summed up the American revolutionists as Bmalcontented^ children and Americans in general as Bcowards^ who were Balmost all the descendants of wretches who deserted their legitimate monarchs for fear of military service.^ The doctrine of natural rights of man, Bthe right of life, liberty, and the pursuit of happiness,^ the idea that Ball men are created equal,^ a belief in Ba government of the people and by the people,^ the rights to own land, the rights to assemble, to protest and express opinions, the devotion to education and self-improvement for plain people—all these principles that we take for granted today did not come easily and required an uphill battle of ideas and for the minds of people. Liberty and freedom are not given to a country, but it is a result of hard- won struggles, a belief in the rights of all people and the protection of minority rights. It is not easy to transcend reli- gion in a deeply religious country as ours, and to allow secular laws to prevail. It is not easy to overcome the power of the rich and allow the people to govern, whereby the rich ultimately have to answer to the people and where the rule of law prevails. In the U.S. capitalism would be encouraged to expand, but there would be no feudal class, no peasant class, no serfs perpet- ually indentured to the monarch or nobility class. There would be genuine reform in which people of different classes and occupa- tions would come nearer in speaking the same language and have similar opportunities than anywhere else in the world. The re- ward system based on inherited privilege and power would be curtailed so that the nation would not have the same Bwinners^ and Blosers^ from one generation to the other. The ultimate ques- tion comes down to what we should do so all Americans could thrive. The answer was to use government to bring about reform so everyone had the potential to prosper. The country would have to work for everyone! A government of the people and for the people was the only counter force powerful enough to curtail corporate power and abuse. So we are the lucky ones. Over the course of nearly 250 years, this nation has grown from a small cluster of colonies with a ragtag collection of people and a makeshift army, to a free, mighty, and wealthy nation—the most influential one in the his- tory of humankind and on the present world stage. How was this possible? Does it boil down to accident, luck, or design? I cannot give you a precise answer—why we are the chosen ones, or the lucky ones. The answer, to some extent, comes from the heart, from the feelings and emotions of plain people, immigrant people, and working people who inhabit our land- scape and who know they are free: Free from the yoke of oppression, free from the sword, whip and boot—and there- fore strive, innovate, and invent. Despite that we are a nation of many nations, with different customs and folklore, we all 544 Soc (2017) 54:541–548 speak the same language as free men and women and breathe the same free air. The answer also comes from all the people around the world who clamor to come to our shores to escape their nations’ rulers, tyrants, and oligarchies, to find that pot of gold that can only be found in the New World. Here common people can fulfill their dreams. Here justice has a chance to prevail. James Weaver, a Populist philosopher at the turn of the twentieth century, identified with the Founding Fathers of 1776 and put it this way: BThroughout all history we have had ample evidence that the new world is the theater upon which the great struggle for the rights of man is to be made,^ Or, could the answer simply be what Otto von Bismarck, the Prussian chancellor, once muttered? BGod has special provi- dence for fools, drunks, and the United States of America.^ Alex de Tocqueville, perhaps the most influential visitor and profound observer of America, put it in more realistic terms in 1835: Whereas a Bpermanent inequality of condition prevailed^ in the Old World, where the social conditions tended Bto pro- mote the despotism of the monarchs and ruling class on the masses,^ the principle of democracy prevailed in the United States. Some 175 years later, another foreign gentleman, this time an immigrant from the far-off land of India, Dinesh D’Souza (someone much more conservative but just as idealis- tic as Weaver and de Tocqueville) commented: BAmerica is a new kind of society that produces a new kind of human being. The human being—confident, self-reliant, tolerant, generous, future oriented—is a vast improvement over the wretched, fa- talistic, and intolerant human being that traditional societies have always produced and…produce now.^ Then there is David Reynolds, a Cambridge historian, who recently wrote a lengthy history of the U.S., entitled America: Empire of Liberty. American contradictions are described be- tween our lofty ideals and practice. He sees the nation as an empire pieced together by war and conquest, much like other empires of the past. But he also sees America as the successful integration of different people from around the world with diverse and innovative thoughts. Faceless and unknown, lack- ing hereditary privilege and wealth, people come to America seeking a new beginning, a fair chance, and a future that is offered no where else on earth. The pictures at Ellis Island tell a story: A tale of people clamoring to come to America, some weeping for joy as they passed into the New York Harbor and saw the Statue of Liberty beckoning them—the huddled masses yearning to be free. The American dream is built on the aspirations and achievements of these immigrants risking life and limb to come to our shores, some seeking political asylum, others seeking economic opportunity and/or a new life. Indeed, there is no better way to judge this country, or any country, than by the numbers of people trying to get into it, as opposed to other parts of the world where people are desperately trying to get out of their country. The Roots of Social Justice The notion of social justice is based on the Christian doctrine of helping less fortunate people—the weak, sickly, and oppressed. To be sure, Jesus cared deeply about people. He went out of his way to help people facing injustices. The Bible is full of passages that advocate helping and caring for people. Instead of being motivated by power, pride, or material wealth, those clergy that follow the scriptures find purpose through acts of justice. Since the 1920s, social democratic governments in Western Europe have reinforced the view that all citizens should be treated equally. Society cannot be fair or just if it has different categories or types of citizenship, such as nobility and the rest of the population, whites as first class citizens and blacks as second class, dominant and subordinate (or oppressed) groups, etc. Inequality must be reduced or eliminated; oppor- tunities for poor and working people need to be expanded; government is obligated to provide free health and education (including college) services; the free market system needs to be regulated by government; labor has the right to organize into unions; resources need to be allocated more equally; and the rich have to pay higher taxes. In short, income and wealth should be redistributed so there is greater opportunity and equality among the populace, and therefore more justice. Across the Atlantic Ocean, it was and still is considered unwise to associate with Europe’s Bsocial democracy^ to avoid being labeled as socialists. The word Bliberalism^ was used in lieu of socialism. When liberal became a derogatory word, the same ideas were expressed as Bprogressive.^ Nonetheless, similar ideas were being promogated as part of Theodore Roosevelt’s BSquare Deal,^ Franklin Roosevelt’s BNew Deal,^ Harry Truman’s BFair Deal,^ Lyndon Johnson’s War on Poverty and BGreat Society^ and Bill BClintonomics.^ The rational behind these policies were discussed in terms of human rights, rooted in the Age of Enlightenment and the U.S. Bill of Rights. Ideally govern- ment would be used to bring about reform so that every American could participate in the American dream; govern- ment legislation would right the wrongs of history. Starting in the early 1960s social scientists began to touch on topics of justice without using or identifying the name. The conversation focused on equality—and issues related to class and caste. Indeed, the 1960s ushered in a period in which the social conscious of Americans burst forth—coinciding with our concern over racial discrimination, poverty, and equal op- portunity. Three authors/books stand out during this period. James Conant, the Harvard University president, was part of the Educational Establishment. In 1961 he published Slums and Suburbs. Slum schools were compared to their suburban counterparts; they lacked resources, experienced teachers, and a relevant curriculum that could meet the needs of their stu- dents. Slum schools were in grave physical condition— Soc (2017) 54:541–548 545 characterized by broken windows, broken toilets, and graffiti on the walls. Conant wrote that the students in the ghetto areas of large cities Beither drop out or graduate from school [with minimal] prospects of future education or employment.^ He argued that youth out of school and out of work was Ba men- ace to the social and political health of the large cities.^ He went on to coin the word Bsocial dynamite^ and warned that if the social/economic situation did not improve in these schools and cities there would be serious consequences. In short, he was predicting the social and racial upheaval that would soon grip the American landscape. The same year (1961) John Gardner, Secretary of Health, Education, and Welfare under the Johnson administration, wrote Excellence: Can We Be Equal Too? He discussed social issues that later gave rise to equal opportunity legislation and affirmative action policies. Gardner noted that extreme forms of egalitarianism in schools or jobs tended to eliminate both excellence and merit. On the other hand, extreme forms of competition and excellence could create a permanent under- class with the less abled. He tried to draw a middle position, including multiple chances for succeeding and identifying many different forms of talent—not just academic talent. BIt takes more than an educated elite to run a complex, technical society.^ Differences in rewards are accepted so long as peo- ple with special abilities serve the common good and do not use them against society, say in robbing a bank. There is also an expectation that society will establish appropriate institu- tions such as schools and colleges to nurture those differences in abilities and talents, but it must also provide opportunity for people who are not as smart and talented. The following year (1962), Michael Harrington, who was a socialist writer published The Other America. The book fo- cused on the forgotten, overlooked, and invisible American, that is the poor who he claimed comprised one third of the US population. Harrington’s main point was that poverty was no longer cyclical or temporary. The condition was permanent in the midst of general prosperity; it was a travesty in the richest nation of the world that so many Americans were struggling and living day-to-day. Although the book was small in size, it was a major factor in galvanizing nation-wide support for assisting the less fortunate in America. It was crucial in influencing both President Kennedy and Johnson, and led to the subsequent War on Poverty. In 1971, John Rawls, a Harvard University professor, pub- lished A Theory of Justice. He criticized the gap between the highest and lowest paid workers, called for a floor and ceiling in earnings to close the gaps in income, and advocated that the rich pay more taxes. He also asserted that justice must be conceived in terms of fairness and basic moral principles. A social contract was needed to ensure basic rights for the peo- ple. Although Rawls’ writing was cumbersome and difficult to read, the book was instrumental in getting scholars and pun- dits to discuss and write about the principles and policies of justice. Eventually, the notion of justice was fused into the US civil rights movement, emphasizing the rights of all people and the moral principles of justice. The Meaning of Social Justice Social Justice means different things to different people. If you are going to speak or write about social justice you will need to have some understanding of what is a democracy, what rights do people have or should have, and how society should provide for less fortunate people. In the pages below, the au- thor identifies 30 basic principles that should be considered as a framework for defining justice (social justice). 1. The history of Western society bends toward social jus- tice. The fight for social justice is incremental and ex- tends over centuries. The interpretation and judgment of social justice depends on who interprets it and who writes the laws of society. 2. Ordinary people can change the course of history by joining a movement. Social justice is a movement for improving the lives of people. You usually get one or two chances in life to join a movement and make a difference. The idea, to paraphrase Aretha Franklin, is to know when the train is coming, to get on board, and to hold your head up high. In short, the fight for social justice takes persistence, guts, and knowing and doing what’s right. 3. A fair and just society will encourage democratic princi- ples of equality, opportunity, and mobility. It will also provide a legal framework for human rights (the concept is less than 350 years old), civil rights, and individual rights. 4. Every democratic society must try to reduce the gap in income and wealth among its citizenry. There must be a reasonable floor and ceiling in income and wealth. 5. The floor and ceiling is achieved through some form of monetary redistribution and taxation, as well as by po- litical compromise. But just when you think you have reached some compromise or agreement, the political winds change and you have a new floor and ceiling. 6. In a just society, all lives have equal value, equal oppor- tunity and equal chances for success. 7. A socially just society cannot forget or ignore people in need, nor leave the majority of its people behind. It must put people first—not property nor profits. It must be willing to examine and reexamine its beliefs and philos- ophy on a regular basis. 8. All groups, including those who define themselves as a political minority (blacks, Hispanics, women, gay les- bians, labor unions, etc.) recognize some bias and dis- crimination will always exist. But in a just society, the 546 Soc (2017) 54:541–548 bias and discrimination are minimal and minority groups have the same rights as the majority and are able to fulfill their dreams. 9. In a fair or just society, the class structures are fluid in both directions—up and down, from lower class to upper class and from upper class to lower. 10. In a just society, there must be a political and legal frame- work that protects and enhances the rights of the people. Laws must not be based on partisan or tribal politics, or they will become temporary, but rooted in moral, social, and economic doctrines that provide opportunities and mobility for all people and groups in society. 11. In a just society, individual rights supersede group rights, corporate rights and property rights. Lawyers and judges have elevated status. The ordinary person can find legal protection as well as redress in the courts. The police must follow and obey the laws. 12. For social justice to flourish, the government must be prepared to intervene. A free-market system, without government restraints, leads to greater inequality where- by talented people make large sums of money and aver- age and less than average workers (the common people or silent majority) are paid at best a living wage. 13. A society characterized by a wide income/wealth gap rewards special talent and entrepreneurship. A society characterized by a narrow gap pays descent wages to ordinary people and rewards the working and middle class. 14. Those who believe that a social contract exists between government and its people reject large gaps in income and wealth; such differences reflect the excesses of cap- italism. Those who believe in limited government see large differences in income and wealth as a reflection of the success of capitalism. 15. Given a social contract, the government not only protects the people, but also provides revenue for building schools, roads, and bridges; it also provides safety nets and social programs for its disadvantaged populace, in- cluding the poor, sick, disabled, and elderly. 16. An innovative and entrepreneurial society will accept large amounts of inequality; a fair or just society will reduce these differences. 17. The people who believe that getting ahead is a matter of perspiration, talent, or enterprise tend to oppose govern- ment intervention and redistributive policies, as well as social programs, safety nets, or entitlements. On the oth- er hand, those who believe that Bsuccess^ is related to inherited advantages, socioeconomic advantages, or worse, being a member of a dominant group (i.e. born white and born in an upper-class family) support redis- tributive policies and/or reverse discrimination. 18. Those who believe in the Horacio Alger stories of hard work, self-denial, and honor contend that those who are Bsuccessful^ have earned their money and deserve it. Those who believe that many wealthy people have ac- quired their money or assets by inheritance or by exploiting the system (Rockerfellers, Goulds, Kennedys, Trump) believe that ordinary people have little chance for Bsuccess.^ That said, social justice has a long road ahead. 19. Those who control capital, property and/or equipment represent the dominant class—and how wealth is creat- ed. Mobility and opportunity must exist to the extent that the subordinate class, or more precisely the common people who work for a living, can improve their social- economic status. 20. In a just society, those who have the least benefit from those who have the most via charity works, philanthropy, and in fair tax code. 21. Although a dominant and subordinate group may exist in all societies, in a just society, the differences do not lead to institutional racism, class consciousness, or economic warfare. 22. If the assignment of personal responsibility is used to justify inequality of income and wealth, then there is little chance for social justice. Of course, there could be other reasons for the difference in outcomes such as per- sonal characteristics, luck, or making the right choice at the right time. It is fair if people have more money or assets than others if there is equal opportunity for all citizens. 23. Power corrupts; power must be held accountable. In a just society, the people have the ability to peacefully remove their political leaders and elected officials when- ever they deem it necessary. 24. For social justice to be part of the fabric of society, the people must be afforded the right and legal mechanism to investigate, impeach, convict and/or jail their political leaders for incompetence, corruption and/or unlawful behavior. 25. Government laws or executive orders that discriminate against specific groups (racial, ethnic or religious), under the guise of protecting the majority of people or preserv- ing a way of life, are morally wrong and usually illegal. In democratic societies, such laws and orders must be challenged and rejected by the people in the courts or legislated bodies of that country. 26. In a fair and just society, people are paid on the basis of the goods and services they produce for the common good. In a society that stresses excellence, people are paid on the basis of supply/demand, the profit they gen- erate or the cost occurred by hiring them. Those who generate profits are paid the most, sometimes hundreds or thousands of times more than those who are consid- ered cost factors. Teachers are cost factors. The idea is for school boards to control the budget and limit salaries. Soc (2017) 54:541–548 547 27. So long as Americans have the view that the Sam Waltons, Mark Zuckerbergs Michael Jordans and Madonnas of the world, and all their descendants are entitled to all their wealth, because they worked hard, founded highly successful companies, or could shoot a ball through a hoop or entertain large crowds, then the millions and billions they make will continue to create social injustices and economic imbalance—and doom the rest of us to a bleak future characterized by vast inequality. 28. Globalization affects social justice. The market is seven billion people, not just the size of our country. This means a bigger pie for millionaires and billionaires to build their wealth, thus increasing inequality and reduc- ing social justice around the world. In a just society, the majority of people must be committed to a level playing field, and some legitimate form of equality, even if it means that income and wealth will be redistributed to less fortunate people. 29. When two and two is considered to be five (or up is down and down is up), by a majority populace or by those in power, social justice is at risk and/or significant- ly diminished. 30. Words count. They are the instrument for both reflection and revolution. A just society permits and defends free speech, a free press and the right to protest peacefully. It recognizes and supports poetry, plays, songs, speeches and film, as well as the publication of newspapers, mag- azines and books as essential for the health and vitality of society. Words can be used for waging war or for healing. Conclusion Consider that the rich and powerful have always kept the masses in a subordinate position, thus curtailing the opportu- nity for the majority populace. Only in recent times, with the rise of democratic governments in Western society do the common people have a chance to curtail the dominant class (the rich and powerful) by voting at the ballot box, as well as a chance to reach for the stars and fulfill their own dreams. With the twenty-first century unfolding in the U.S., there should be continuous pressure to increase equality and redistribute in- come and wealth. The commitment to provide a fair chance for every- one to succeed and develop their abilities and talents remains central to the national creed for the vast major- ity of Americans; this is what distinguishes us from the rest of the world. Virtually no one in the U.S. favors equal distribution of income for it would discourage hard work, risk taking and innovation. Some form of inequality, based on abilities and talent, is the price we pay for a dynamic economy and the right for each person to retain the benefits of his or her labor, capital investment or property. The idea is not to focus on the outcomes of inequality, but to address the reasons for inequality—and what can be done to improve the hu- man condition. It is doubtful if inequality of income and wealth can be reduced simply by education, because the gap between the rich and the rest of us is so great and continues to grow wider. A moral society needs to redistribute income and wealth in order to make its nation more democratic, fair and just. Finding the right mechanism, reaching some compromise, setting limits on income and wealth (a floor and ceiling) is no easy task. Nonetheless, it is essential that we begin to make such changes if most of us in this country are to share in the American dream. Every generation going forward is obligated to interpret and reinterpret the principles of human rights and justice. Every person in a free society must learn the government’s obligations to its people and the peoples’ obligation to their fellow citizens and humanity in general. That said, the mean- ing you find in the above 30 principles of justice depends on your own sense of history and life experiences. The list is not permanent, and should evolve as society changes. The hand- writing is on the wall. You only have to see six inches in front of your eyeballs. As the population changes and we become more diverse, educated and tolerant as a nation, we can expect a more liberal or progressive interpretation of justice. Allan Ornstein is a professor of education at St. John’s University. He is a former Fulbright-Hayes Scholar and author of 65 books. His recent books Class Counts: Education, Inequality, and The Shrinking Middle Class (2007), Wealth vs. Work: How 1% Victimize 99% (2012), and Excellence vs. Equality: Can Society Achieve Both Goals? (2016) deal with the issues of social justice. 548 Soc (2017) 54:541–548 Social Justice: History, Purpose and Meaning The Ancient World Our Western Heritage: The Greeks and Romans The Promised Land The Roots of Social Justice The Meaning of Social Justice Conclusion 
work_rifxwy3vcrepzkbmix5rqum72q	----	517297 Buffalo Law Review 62.2_R2.ps 451 Corrective Justice as Making Amends ERIK ENCARNACION† INTRODUCTION Many tort theorists try to explain tort law in terms of corrective justice.1 Formulations vary, but traditional accounts of corrective justice hold roughly that one person who wrongfully injures another has a duty to repair the injury or offset the losses resulting from that injury.2 Suppose that Alice negligently breaks Bob’s wrist. According to † Ph.D. Candidate, University of Southern California, School of Philosophy; J.D., Columbia Law School. The author would like to thank Rima Basu, Sharon Lloyd, Andrei Marmor, Caleb Perl, Scott Soames, Gabriel Uzquiano-Cruz, and Gary Watson for their comments on earlier versions of what eventually became Parts I through III of this article. Special thanks are owed to Steve Bero, Greg Keating, Elizabeth Lee, and Aness Webster, each of whom gave invaluable and detailed feedback on the whole article. Finally, very special thanks are owed to Scott Hershovitz, whose detailed criticisms substantially improved this article—or so the author hopes. This article was written with support from the University of Southern California’s Provost Fellowship. 1. See, e.g., JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE 13-24 (2001) [hereinafter COLEMAN, PRACTICE OF PRINCIPLE]; JULES L. COLEMAN, RISKS AND WRONGS 361 (1992) [hereinafter COLEMAN, RISKS AND WRONGS] (“A loss falls within the ambit of corrective justice only if it is wrongful. . . . Corrective justice responds to such losses by imposing on individuals a duty to repair them.”); ERNEST J. WEINRIB, CORRECTIVE JUSTICE 9-37 (2012) [hereinafter WEINRIB, CORRECTIVE JUSTICE]; ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 56-83 (1995) [hereinafter WEINRIB, THE IDEA OF PRIVATE LAW]; Martin Stone, The Significance of Doing and Suffering, in PHILOSOPHY AND THE LAW OF TORTS 131, 137-38 (Gerald J. Postema ed., 2001) [hereinafter Stone, The Significance of Doing and Suffering]. 2. See COLEMAN, PRACTICE OF PRINCIPLE, supra note 1, at 15 (“[I]ndividuals who are responsible for the wrongful losses of others have a duty to repair the losses”) (italics omitted); Martin Stone, On the Idea of Private Law, 9 CAN. J.L. & JURISPRUDENCE 235, 253 (1996) [hereinafter Stone, On the Idea of Private Law] (construing corrective justice in terms of one person’s being “answerable for the harmful effects of her actions on another”). Zipursky suggests the following formulation: “One who causes a wrongful injury to another is obligated to compensate the other for the injury caused.” Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 700 (2003) [hereinafter Zipursky, Civil Recourse]. 452 BUFFALO LAW REVIEW [Vol. 62 traditional corrective justice theory, Alice incurs an obligation to compensate Bob for the losses associated with repairing the wrist, and Bob immediately obtains a correlative right to receive compensation from Alice. Corrective justice theorists claim that some moral principle of corrective justice explains why Alice and Bob stand in this bilateral relation to each other, morally speaking, and moreover, why tort law appears to embody or reflect this relation.3 In recent years, John C.P. Goldberg and Benjamin C. Zipursky, the leading proponents of civil recourse theory, have objected forcefully to corrective justice theory.4 They deny that corrective justice adequately accounts for important features of tort law.5 In particular, they claim that corrective justice cannot explain (1) the diversity of remedies beyond compensatory damages available in tort (such as injunctive relief and punitive damages); (2) “substantive standing” doctrines that prevent certain plaintiffs from obtaining relief (even in cases where they have been wrongfully injured by the defendants); and (3) the structural fact that a legal duty to repair the victim’s losses does not arise at the moment a tort occurs (even though corrective 3. This raises questions about what it means to “explain” a “central” feature of tort law. These questions are explored in COLEMAN, PRACTICE OF PRINCIPLE, supra note 1, at 25-63 (distinguishing several kinds of explanatory theories and arguing that economic accounts are not persuasive when understood as any of these kinds) and Zipursky, Civil Recourse, supra note 2, at 703-09 (discussing various interpretations of the bipolarity argument and Zipursky’s own version of “pragmatic conceptualism”—a methodology for interpreting legal institutions). 4. See, e.g., John C.P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DEPAUL L. REV. 435, 436 (2006) [hereinafter Goldberg, Two Conceptions] (aiming to “complicate” the apparently tight link between remedies in tort law and the aspiration to make plaintiffs “whole”); John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 953-54 (2010) [hereinafter Goldberg & Zipursky, Torts as Wrongs] (claiming the explanatory superiority of their own wrongs-and-recourse model of tort law to theories of corrective justice); Zipursky, Civil Recourse, supra note 2, at 709-24. 5. John C.P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 576 (2003) [hereinafter Goldberg, Twentieth-Century Tort Theory] (criticizing corrective justice for, among other things, rendering “the well-established institution of punitive damages problematic”); Zipursky, Civil Recourse, supra note 2, at 709-10. 2014] MAKING AMENDS 453 justice seemingly predicts that such a correlative duty would arise simultaneously with the right to reparations).6 Collectively, these claims purportedly show that corrective justice cannot explain or justify important features of tort law.7 This paper outlines a new conception of corrective justice capable of responding to these attacks.8 To see what motivates the conception, we will begin with some background. Part I explains the three main objections to traditional corrective justice theories advanced by civil recourse theorists. Part II sets out a recent attempt by Scott Hershovitz to revise corrective justice theory in response to these objections.9 Unfortunately, Hershovitz’s theory—the “getting-even” conception of corrective justice—faces a new set of difficulties, which are discussed in Part III. As we will see, the main difficulty is that Hershovitz’s theory blurs the 6. See, e.g., Zipursky, Civil Recourse, supra note 2, at 709-24; John C.P. Goldberg, Wrongs Without Recourse: A Comment on Jason Solomon’s Judging Plaintiffs, 61 VAND. L. REV. EN BANC 9, 13 (2008) [hereinafter Goldberg, Wrongs Without Recourse], http://www.vanderbiltlawreview.org/content/articles/2008/11/ Goldberg-61-Vand-L-Rev-En-Banc-9.pdf. 7. This would also be somewhat ironic because corrective justice theory’s crowning achievements include undermining influential economic explanations of tort law. For the relevant economic explanations, see generally GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970); WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987); STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972). The arguments against these approaches appear in numerous places. See, e.g., COLEMAN, PRACTICE OF PRINCIPLE, supra note 1, at 13-24; Stone, The Significance of Doing and Suffering, supra note 1, at 142- 52; Ernest J. Weinrib, Understanding Tort Law, 23 VAL. U. L. REV. 485, 503-10 (1989) [hereinafter Weinrib, Understanding Tort Law]. 8. See Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 STAN. L. REV. 67, 69 (2010) [hereinafter Hershovitz, Harry Potter] (“[T]o generate an adequate corrective justice account of tort, we must revise our understanding of what corrective justice is.”). Another way defenders of corrective justice might respond is by disputing the purported importance of the recalcitrant data that civil recourse theorists rely on to motivate their attacks. A detailed version of this reply can be found in WEINRIB, CORRECTIVE JUSTICE, supra note 1, at 97 (“Punitive damages are inconsistent with corrective justice for reasons both of structure and of content.”); John Gardner, Torts and Other Wrongs, 39 FLA. ST. U. L. REV. 43, 53-54 (2011) [hereinafter Gardner, Torts and Other Wrongs] (emphasizing that the only form of relief awarded “as of right” in tort law is compensatory damages). 9. Scott Hershovitz, Corrective Justice for Civil Recourse Theorists, 39 FLA. ST. U. L. REV. 107, 126 (2011) [hereinafter Hershovitz, Corrective Justice]. 454 BUFFALO LAW REVIEW [Vol. 62 line between retributive and corrective justice and hence distorts rather than illuminates tort law. The point of presenting and criticizing Hershovitz’s views is not simply to expose the shortcomings of a particular theory. Scrutinizing the limitations of Hershovitz’s approach will help us avoid pitfalls en route to an alternative. Part IV sketches a new account, which will be called the “making amends” theory of corrective justice. Roughly put, the principle of corrective justice that will be defended holds that individuals who are responsible for the wrongs that happen to others have a duty to make amends to them unless the victims of those wrongs do not want them to. Tort law, in turn, should be understood as a public institution that aims to facilitate the amends-making process by mitigating certain recurring problems that occur in the informal amends- making process, while protecting the morally important interests of victims in controlling aspects of that process. Reparative relief should be understood, moreover, as the default mode of making amends. There is a lot to unpack in these claims. To preview, notice two differences between the new approach to corrective justice and traditional, repair-based conceptions: first, rather than a duty of repair, the principle contains a duty to make amends. Because the manner in which one makes amends is more flexible than how one repairs wrongful losses, this allows us to respond more readily to objection (1) that corrective justice cannot account for the variety of remedies available in tort. As we will see, making amends may require reparations, but need not. Making amends may require more or less depending on the circumstances. The second salient difference is the inclusion of an “unless” clause. Most statements of the principles of corrective justice overlook the fact that there are limits on the duties of wrongdoers to respond to their victims. One overlooked limit is that sometimes victims do not want to interact with the wrongdoer and do not want them to try to make amends. Understanding this limit, as well as problems that routinely crop up in informal amends-making processes, will be important in answering the structural objections proffered by civil recourse theorists (mentioned above at (2) and (3)). The story is complicated but, again, we will see that the reason that tort law’s basic normative structure differs from that of 2014] MAKING AMENDS 455 corrective justice is that tort law aims to overcome practical obstacles to the amends-making process while also serving to protect the victims’ morally important interests in controlling aspects of that process. Explaining all of this in greater depth will be the task of Part IV. After sketching out the making-amends conception of corrective justice and how it can be used to explain tort law, the making-amends conception will be tested against various objections in Part V. As we will see, the new account stands up to a range of objections including the civil recourse critique. We will conclude by observing that instrumentalist appeals to corrective justice can help explain and justify why that legal structure is the way it is and does not need to carve tort law at the joints in all ways. I. THE CIVIL RECOURSE CRITIQUE OF CORRECTIVE JUSTICE Corrective justice theorists try to explain tort law’s key features in terms of moral principles of corrective justice. There is no canonical statement of these principles. For our purposes we will treat Jules Coleman’s statement as representative: “individuals who are responsible for the wrongful losses of others have a duty to repair the losses.”10 To be sure, not all corrective justice theorists endorse this formulation. And it raises several worries, some of which are peculiar to his view.11 But for the purposes of fixing Goldberg and Zipursky’s target, the principle will do just fine, since the civil recourse critique applies to a wide array of formulations including Coleman’s. With the target in place, let us turn to the tripartite critique of traditional corrective justice theory posed by the civil recourse theorists. Let us call the objections: the remedies objection, the “substantive standing” objection, and 10. COLEMAN, PRACTICE OF PRINCIPLE, supra note 1, at 15. 11. For example, how do we square the principle with strict liability doctrines? Those doctrines seemingly allow liability without wrongdoing. But see, e.g., Gregory C. Keating, Property Rights and Tortious Wrongs in Vincent v. Lake Erie, 5 ISSUES IN LEGAL SCHOLARSHIP 3-4 (2005) (discussing views holding that the relevant wrong in strict liability cases is the failure to make voluntary reparations). 456 BUFFALO LAW REVIEW [Vol. 62 the no-legal-duty objection. Understanding them will be crucial for understanding what follows. A. The Remedies Objection The first objection claims that corrective justice theories cannot explain why courts regularly award non- compensatory relief.12 The objection runs as follows. According to corrective justice theory, defendants have a duty to repair wrongful losses. But duties to repair are compensatory in nature: satisfying one’s duty of repair involves identifying the costs wrongfully incurred by the victim as a result of the wrongdoing and trying to offset those losses or undo the wrong to the extent possible.13 For example, if one is responsible for breaking another’s wrist, the responsible party should at least pay for the losses associated with repairing the wrist, including paying for related medical costs. And it is a well-known commonplace that tort law does, in fact, award compensatory damages to plaintiffs in precisely this way. One Aristotelian metaphor often used to capture this commonplace is that damages awards in tort aim to make victims “whole.”14 The alleged problem, however, is that many remedies besides compensatory relief are available in tort suits.15 12. See Zipursky, Civil Recourse, supra note 2, at 710. 13. See Goldberg, Twentieth-Century Tort Theory, supra note 5, at 573-74. 14. E.g., Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 43 (1st Cir. 2003) (“We have recognized that reinstatement is an important remedy because it ‘most efficiently’ advances the goals of Title VII by making plaintiffs whole while also deterring future discriminatory conduct by employers.”); De Lude v. Rimek, 115 N.E.2d 561, 564-65 (Ill. App. Ct. 1953) (“The controlling principle is that where compensation is the objective of the law, recovery is limited to the damages sustained, and any payments made by MacNevin to the end of making plaintiffs whole must be deducted from the recovery in this action.”); Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119, 135 (Mo. 1979) (claiming that there was authority for having “substituted money for the land itself as a means of making plaintiffs whole”). 15. Zipursky, Civil Recourse, supra note 2, at 710 (“The problem is that courts do many things in tort law once they have decided that the defendant committed a tort upon the plaintiff; the imposition of liability for the wrongful injury created by the defendant is simply one of many remedies granted—a particular form of compensatory damages.”). 2014] MAKING AMENDS 457 Punitive damages, nominal damages, and injunctions are regularly awarded.16 And often we cannot fairly construe these forms of relief in terms of reparations. Punitive damages seemingly aim to punish, not repair.17 Nominal damages have nothing to do with reparative relief.18 And because many forms of injunctive relief aim primarily to prevent or force future conduct, injunctive relief is hard to square with compensatory damages concerned with past wrongdoings.19 The fact that tort law regularly awards these forms of relief seems aberrational when viewed through the lens of traditional corrective justice theory. But they are not aberrational, according to Goldberg and Zipursky.20 They are central features of tort practice, and any explanatory theory of tort law (like corrective justice) that fails to account for them, or that treats them as ancillary or extraordinary, counts as a major shortcoming in that theory.21 The remedies objection points toward a deeper worry. The existence of diverse remedies highlights a fact that corrective justice theories have difficulty grappling with: tort law separates the question of whether a plaintiff has a right to action from the question of the appropriate nature of the remedy that should apply.22 This is why a diversity of remedies is available in tort.23 But corrective justice illicitly unites wrongdoing with a particular type of relief (compensatory remedies) because corrective justice implies 16. Id. at 711. 17. See id. at 750 (claiming that punitive damages “are actually seeking to vindicate their rights by inflicting a sanction on the defendant”) (emphasis added). 18. Id. at 711 (“By definition, these types of damages [such as punitive and nominal damages] do not concern responsibility for the loss created.”). 19. See id. at 711 (“Corrective justice theory is similarly unable to explain why a variety of injunctive remedies are available.”). 20. See id. at 711-13. 21. See id. 22. See id. at 711-12. 23. Id. (“The diversity of remedies indicates that the issue of whether there is a right of action in tort is distinct from the issue of what the remedy should be.”). 458 BUFFALO LAW REVIEW [Vol. 62 that a finding of wrongdoing immediately triggers a duty to repair.24 The law, however, contains no “direct link between the notion of a right of action and the imposition of liability” in compensatory form.25 A finding of a legal wrongdoing does not automatically trigger a particular form of remedy. We will see this point again from a different angle when we address the no-legal-duty objection. B. The “Substantive Standing” Objection The second objection claims that corrective justice allegedly fails to account for so-called “substantive standing” requirements, which appear in most, if not all, causes of action recognized in tort law.26 According to these requirements, not only must a plaintiff show that she has suffered injuries resulting from the defendant’s tortious conduct, a plaintiff must also stand in the right kind of status, as a victim, in relation to the defendant’s wrongdoing in order to properly state a tort claim.27 In other words, “[a] plaintiff may recover against a defendant for a tort only if the defendant’s conduct was tortious relative to the plaintiff.”28 The point is subtle. Perhaps the best way to flesh it out is through examples. Zipursky provides several of them in his seminal article, Rights, Wrongs, and Recourse in the Law of Torts.29 He points out that, in raising a defamation claim, a plaintiff cannot win unless she can show that “she herself 24. Id. at 712. Zipursky states: [I]t is possible for the plaintiff to have a right of action in tort without reaching the question of whether [the] defendant has a duty of repair. So, although the commission of a tort by the defendant gives rise to a right to some sort of remedy in the plaintiff, the existence of this right to a remedy cannot be dependent upon the plaintiff being the owner of a loss and therefore the beneficiary of the defendant’s duty of repair. Id. 25. Id. at 713. 26. Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 4 (1998) [hereinafter Zipursky, Rights, Wrongs]. 27. Zipursky, Civil Recourse, supra note 2, at 714. 28. Id. (emphasis added). 29. Zipursky, Rights, Wrongs, supra note 26, at 17-19. 2014] MAKING AMENDS 459 was defamed.”30 This requirement is reflected in the so-called “of and concerning” element of the defamation tort, which holds that defamation plaintiffs must show that the allegedly defamatory statements are “of and concerning” the plaintiffs.31 This is so even if the plaintiff can show that the defendant made a defamatory statement that injured her foreseeably.32 Likewise, plaintiffs alleging fraud must allege more than an injury flowing from the defendant’s intentional deception; they must further allege that they themselves relied on the deception.33 To illustrate the point in the law of negligence, Zipursky cites Cardozo’s famous opinion in Palsgraf v. Long Island Railroad.34 In Palsgraf, Palsgraf’s injury was caused by the wrongful conduct of the railroad’s employee, yet the court concluded that the railroad owed no duty to her in particular, and as a result, she could not recover from the railroad.35 Showing that an injury flowed from wrongful conduct of others is not sufficient to justify recovery. All of these cases illustrate, according to Zipursky, that “tort law declines to impose liability on defendants in favor of the bearers of . . . wrongful losses” without establishing that the plaintiff bears the right relation as a victim of the defendant’s tortious conduct.36 This is the hallmark of tort law’s substantive standing requirements. To see how these observations are supposed to undermine traditional corrective justice theories, Zipursky claims that any attempt to explain these ubiquitous “substantive standing requirements” in terms of corrective 30. Id. at 17. 31. Id. 32. Id. 33. Id. at 18-19. 34. Zipursky, Civil Recourse, supra note 2, at 715 (citing Palsgraf v. Long Island R.R., 162 N.E. 99, 99 (N.Y. 1928)). 35. Palsgraf, 162 N.E. at 99. Cardozo declined to see the issue (of whether Mrs. Palsgraf could recover) in terms of causation—proximate or otherwise. Id. at 101 (“The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability.”). 36. Zipursky, Civil Recourse, supra note 2, at 714. 460 BUFFALO LAW REVIEW [Vol. 62 justice faces a dilemma.37 To the extent that corrective justice theorists try to explain tort law in terms of genuine principles of corrective justice that contain plausible conceptions of moral responsibility, Zipursky claims that those conceptions of moral responsibility would impose liability in many cases in which tort law would not, given the restrictions imposed by substantive standing requirements.38 This is the first horn. As for the second horn, Zipursky claims that, to the extent that some proposed principles of corrective justice could explain substantive standing requirements, they no longer reflect or contain independently plausible conceptions of moral responsibility.39 To see this dilemma at work, consider Jules Coleman’s proposed principle: “individuals who are responsible for the wrongful losses of others have a duty to repair the losses.”40 On one interpretation, Zipursky would be prepared to acknowledge that this is a plausible moral principle. This “plausible” interpretation depends on a particular way of understanding what it means for X to be responsible for Y’s wrongful losses. If this means that X is responsible for Y’s losses only if those losses are the reasonably foreseeable results of X’s conduct, then Zipursky is indeed willing to 37. See id. at 716-18 (criticizing the work of Stephen Perry (which states, in Zipursky’s view, a plausible conception of moral responsibility for outcomes but one that does not fit actual legal practice) and Jules Coleman (which, Zipursky seemingly claims, might make for a better fit with actual legal practice but which no longer accords with any plausible view of moral responsibility)). 38. See id. at 717. Zipursky states: Remarkably, the doctrines that fall under the rubric of substantive standing do not impose a duty of repair upon defendants even for reasonably foreseeable injuries caused by wrongful conduct. Thus, parents who are traumatized when a surgeon’s negligence on the operating table disfigures their child will not be able to recover from the surgeon for this trauma—even though our tort law now views emotional trauma as sufficiently real to be compensable, even though it regards the surgeon’s negligence as a legal wrong, and even though the emotional impact on parents of having their child disfigured is surely foreseeable. Id. 39. See id. at 718 (“If ‘fault’ is a placeholder for a nexus-requirement that already happens to exist in tort law, then it is an illusion that responsibility has been accounted for in terms of fault.”). 40. COLEMAN, PRACTICE OF PRINCIPLE, supra note 1, at 15. 2014] MAKING AMENDS 461 concede that Coleman’s principle counts as a plausible formulation of a genuine moral principle.41 The principle is plausible because, according to Zipursky, we simply are morally responsible for the foreseeable results of our conduct.42 Corrective justice, on this interpretation, refers to a true principle of moral responsibility. But this moral plausibility comes at a price, since the principle can no longer account for substantive standing requirements in tort law. To see why, Zipursky points out that substantive standing requirements often deny recovery even in cases where a plaintiff’s injury is a reasonably foreseeable consequence of tortious conduct.43 This is why, according to Zipursky, “parents who are traumatized when a surgeon’s negligence on the operating table disfigures their child will not be able to recover from the surgeon for this trauma”—even though the suffering of parents in such circumstances is reasonably foreseeable.44 This is also why plaintiffs alleging defamation must show not only that they were injured as a foreseeable result of the defendant’s defamatory statement; they must also show that the statement was “of and concerning” them.45 The first interpretation of Coleman’s principle,46 even though it renders the principle plausible as a genuine moral principle, would imply that we ought to impose liability in many cases 41. Zipursky, Civil Recourse, supra note 2, at 717 (acknowledging that “[t]he constraint of foreseeability in our non-legal practices of blame ascription reflects something deep in our notion of responsibility”). 42. Id. Actually, Zipursky associates this interpretation with the work of Stephen Perry on outcome responsibility, not Jules Coleman’s principle. See id. at 716-17 (citing Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 503-12 (1992)). But the same dilemma is supposed to arise for any plausible principle of corrective justice: either it is a true moral principle (and it is both over- and under-inclusive of the scope of actually recognized torts like defamation), or it is not over- and under-inclusive, in which case it no longer seems plausible as a true moral principle. So the present conflation of Perry’s and Coleman’s different views on corrective justice does not matter for purposes of the critique. 43. See Zipursky, Civil Recourse, supra note 2, at 717. 44. Id. 45. Zipursky, Rights, Wrongs, supra note 26, at 17. 46. See COLEMAN, PRACTICE OF PRINCIPLE, supra note 1, at 15. 462 BUFFALO LAW REVIEW [Vol. 62 where tort law does not. In short, substantive standing requirements sometimes prevent plaintiffs from recovering from defendants even though those defendants are morally responsible for the plaintiffs’ wrongful losses. The first interpretation falls on the first horn of the dilemma—that is, true moral principles of corrective justice exceed the reach of actually recognized torts. There is another interpretation of Coleman’s principle arguably capable of explaining why tort law contains substantive standing requirements. On this interpretation, advanced by Coleman himself, we should understand X’s being responsible for Y’s losses as implying X is at fault for Y’s losses, in the sense of being “within the scope of the risks that make the aspect of [X’s] conduct at fault.”47 How are we to understand fault here? The full answer is complicated, but at a minimum, the notion of fault somehow automatically incorporates “the kind of nexus between conduct and injury that tort law actually reflects.”48 In response to this proposal, Zipursky admits that construing the relation of being responsible for an outcome as Coleman suggests might account for all the relevant substantive standing elements.49 But Zipursky thinks that this answer also comes at a price.50 Coleman’s answer can explain substantive standing requirements but no longer seems plausible as a genuine moral principle. The concept of fault that Coleman invokes simply does not track ordinary moral notions of fault. Tort law sometimes refuses to find defendants liable—again, due to substantive standing requirements—even though the injuries did arguably fall within the “nexus” linking the conduct and injury, cases in which the defendant plainly appears “at fault.” But if Coleman’s concept of fault does not track our ordinary moral concept of fault, this means that Coleman’s version operates as an empty “placeholder” for the standing requirements 47. COLEMAN, RISKS AND WRONGS, supra note 1, at 346. 48. Zipursky, Civil Recourse, supra note 2, at 717. 49. See id. at 718. 50. Id. 2014] MAKING AMENDS 463 already found in tort law.51 And the same argument applies to any proposed specification of the being-responsible-for relation, whether couched in terms of fault or not. To the extent the being-responsible-for relation already presupposes or incorporates substantive standing doctrines found in tort law, the relation seems far less plausible as a genuinely moral one as opposed to being an empty vessel standing in for legally recognized standing requirements.52 To summarize: corrective justice theories aim to explain tort law in terms of genuine moral principles. But moral principles of corrective justice cannot explain substantive standing requirements because the principles imply more liability than those requirements allow, to the extent those principles are plausible as genuine moral principles.53 Adjusting these theories in order to accommodate substantive standing requirements simply renders those principles implausible as genuine moral principles of corrective justice. Theorists of corrective justice are thus gored on the horns of a dilemma. C. The No-Legal-Duty Objection This brings us to the final objection to corrective justice, which focuses on the timing of the duty to repair.54 Traditional, Aristotelian versions of corrective justice hold that a victim’s right to compensation arises immediately when one person wrongs another, and that the wrongdoer 51. Id. 52. Zipursky also claims that, even if we were to accept this understanding of responsibility as it appears in the principle of corrective justice, the law still imposes tort liability in cases where the principle of corrective justice would not. He claims, for example, some people can recover for “consequential damages” not part of the “predicate injury” itself. See id. at 718. This response appears to underscore the diversity-of-remedies issue and therefore does not include it in the discussion above. That is, if corrective justice theorists expanded their conception of the duty of repair to include more than simply reparations, this response does not seem to have much bite. 53. The law also imposes liability where morality arguably would not, such as cases of harmless, accidental trespassing. Id. at 726-27 (mentioning trespass as a case where tort liability would attach but moral blameworthiness would not). 54. See id. at 718-21. 464 BUFFALO LAW REVIEW [Vol. 62 immediately incurs a correlative duty to compensate the victim.55 Coleman’s principle is representative of the Aristotelian tradition: “individuals who are responsible for the wrongful losses of others have a duty to repair the losses.”56 One would naturally expect tort law to reflect this structure if tort law were explicable in terms of principles like Coleman’s. That is, if tort law’s basic structure were a legal correlate to the moral principle of corrective justice, a tortfeasor would have an affirmative legal duty to repair that would arise the moment she commits a tort against a victim. But tort law does not work this way. Goldberg articulates the point succinctly: Notice, however, that the conversion of the moral duty of repair into a legal duty does not happen through the tort system unless and until the victim decides to press a claim against the defendant. In other words, if the defendant is going to be made to heed his duty of repair, it will only be by virtue of the law’s having empowered the victim to demand of the defendant that he make amends for the wrong done. . . . Corrective justice theory thus fails to capture accurately the terms on which tort links a victim to a person who has victimized her.57 In other words: if X breaches his duty of care towards Y and wrongfully causes Y’s injuries as a result, nothing in tort law imposes on X a duty to repair Y’s injuries at the very moment the injury occurs. At most, X is liable to Y, but this does not yet mean X incurs a legal obligation to compensate Y. Civil recourse theorists thus maintain a sharp distinction between a legal liability and an affirmative obligation to pay.58 Corrective justice implies the latter; tort law holds that only the former occurs when someone wrongfully injures another. The duty of repair, in short, is not automatic in the way that the principle of corrective justice suggests. 55. See, e.g., Ernest J. Weinrib, Toward a Moral Theory of Negligence Law, 2 LAW & PHIL. 37, 38 (1983). 56. Id. 57. Goldberg, Wrongs Without Recourse, supra note 6, at 13 (emphasis added). 58. Zipursky, Civil Recourse, supra note 2, at 720-21. 2014] MAKING AMENDS 465 To bolster this claim, Zipursky compares contractual liability with that of liability in tort law.59 Courts award prejudgment interest to plaintiffs that win breach-of-contract claims on the theory that defendants are obligated to pay plaintiffs at the time specified by the original contract.60 Prejudgment interest is justified on the grounds that the defendant’s subsequent delay of payment, due to litigation, further deprived the plaintiff of the time-value of the money the defendant was obligated to pay at the moment the contract was breached. In cases arising from breaches of contract, liable parties are deemed liable as of the moment of breach, and hence, the breaching party is also responsible for the victim’s lost interest.61 But prejudgment interest is not normally awarded in torts cases.62 Why? According to civil recourse theorists, a defendant in a torts case, unlike a defendant in a breach-of-contract case, is not legally obligated to compensate the plaintiff at the moment that the defendant injures the plaintiff.63 The duty to pay arises, if at all, only after a finding of liability.64 But corrective justice seemingly predicts the opposite result. Not only are defendants liable at the moment they wrongfully cause the plaintiffs’ injuries, but, according to corrective justice, they should be liable for reparative relief, most likely in the form of compensatory damages. So we should expect that prejudgment interest would begin to accrue the moment the wrongdoing causes the plaintiff’s injury. Since civil recourse theorists claim tort law does not work this way, corrective justice apparently fails to account for a major feature of tort law’s basic normative structure. 59. See id. at 719. 60. Id. (explaining that “one who fails to pay under a contract will incur prejudgment interest because payment is owed at the time the contract specifies for performance, not at the time a court reaches a judgment”). 61. See Hershovitz, Corrective Justice, supra note 9, at 109. 62. Id.; Zipursky, Civil Recourse, supra note 2, at 719-20. 63. See Hershovitz, Corrective Justice, supra note 9, at 109. 64. See id. ���� ���������� � �� � � ���� ��� �� ��! +!���<+�!�!< �><�!���>< * � 4$���������$���������� �� �������� �� � � `���� ��`����� ����`������ �`��� ���� ����£ �������� �� ����������� � �� � `���� � � #\�����\� ����X�`��`������ 65 *``�����\ �� � �� ����� `����`���� �����`� �``��� � �� � ��`��~ �� � ����\����\ �� ��~� ����� #\��� ����X ��� � � ����\���� 66 �� ����� ���� ��� ��~� #�� \��� ������ � � ��� ���� ����\�� �� ����������� �� \�� ���� X67 ��`���� � � `��`��� �� \�����\ ���� �� `������ �� ���� ����£^� ����������� �� `����`���� �����`� ��� ���� ���� �� �� ���� `���������\ �� ������ � � � ���� #\�����\ ����X �~����� �����\� 68 ��� ���� ����£ `�������� � � ���� �� �������� ~��� ������� �� ���� �� �� `������� � � ������ ���`��`�� �� � �` ��� ������ ������� �� �������\ ����\����� ��� ���� �� 69 �� ���� ��� ���~���� `������� ��~ ��� ����� 70 ������� � �� � �� ��� �������� ��� � �� ����� ����� ��~ ��~� ~���� 71 <�� ������� � ��� ��~���~� ����� ��� ������ ��~ `�� ��� ����� ��`�� ��~ ������~� ��~� \��� ���� ��� ����� 72 *``�����\ �� ���� ����£� ����� �� � � ������� �� ��`���� ��~ #����X �� #������X ��� �� �� �� �� � ��� �� �@ �� {{} ���� ����£ �� �� ����������� ����`���� �� ����������� `����`���� �����`� ���� ��@ �� {{��{� ���\���\ � �� `����`���� �����`� �������� �� �``�~���� � � �~��������� ��~���� ������\ ����\��� �`�� �� �� ������ ~����\ ��`��~� � ���� �����`� �� �� ��� � �� ���� ����£ � ���� � �� �� ��� ������` ������ � �� ����� *�� ��\ �� �� ��� ������� � �� ���� ����£ ��``����� � �� ����� ��`���� �� � � `���� ��`����� ����`����� �� ���� � ��\� ��~��� �� � �@ �� {�� �� � �@ �} >­�>$� !<+@��� �����><*$¨ ��� ��� �� {|}|� ��������\ #�� \�� ���� ���� �X �� #�� ���� ���^� �����\� ����� �� ��������� ��\������X� �| ���� ����£� %����������������������������� |� �� {�{ �#>�� ���\~���� ����� � �� �� ����� �� \�� ������ ���� ��� ����`�� X� �� � �@ �� {{}�{| ����`�����\ � � ��~���������� `���� �{ � �@ �� � �@ ��{��� ��� �K�����;� ���� � �� \�������� ������� ��~^� �����������\ ���� 73 ����� ~��� �� � ���� ��`���� ��~ ��� ����� ���� ��� ��� ���� �� 74 ���� ����£ ���� ��~ ��� ����� �� ���������� ��~� �� � � ��\�������� ����`���� ������ �� ������ ������� ���� ��� ��` �� �� � � ����� � ��\ �� ����`� �� � ��� �� ����� ��� ��~ ��� ����� �� �� ����� ����� ~��� ������~ ��~� �`� �� � �� `���� � � ������~��`� `�~�� �� � � ���~ �� � ����` �`�� �� � �` ����� ��`����� ��~�� ��\ ���� #��^�� ����X �� #��^�� ������ X75 �� ~�\ � `��� � �� ���� �� ����` �`� � ������������ �#� �������� 76 ���� ����£ ������� � �� \�����\ ���� �� ���#��������� ��� ��`� � �� \�����\ ���� ���� ������� ��` � ����` �`� 77 @��� ��� ����` �`�� � �� �� � ��`�������� �� �������� ��������� �� ��������\ ��~ ��� ����� ���� ��� ��` �� �� ������� �� #������7� �������������`�\����� `��������� � �� ~��� �� ��������� �� ����� ��� � � ������~����� �� ��``��� 78 � �� �� � ����` �`� ���� � �������`�~��� �� ~�����\� ��``���� ������� ��� ���� �� � �� �� �� ����`���� ������ � � ������`� #� ��� �������`� ��� ������ ��� �����X ��� ���� �� �� �� ��`�� ���� � �� �� � � ����`���� �� ��� ������ �� ����`���� ~�����\�� 79 @�������� � �� �� �����^� ��`�������� �� �������� ��``������� ����� ��� ����� ��� ��~ �� �� ��`� �� ���� ��� ��` �� ���~��� ��`�\����� `��������� ~��� �� ��������� � ��� `��������� ��`����� ��� ��� ��� ��~���� ��� � � ��������\� • ����!��������@���~� ����\����� ~��� ������� ��� ���~ ��� ����� �� � ��`��� ����� �� � � `��� �� ��~ ��� ����� � � ����\����� �� � �����������\ ���� ��� � ������������ �~���� �� �� � ������@��� {{| �� � ������@ �� ������@ �� � ��� ��@��� {�} �� �@ �� {{| ��� ~��� �� ����` �`��� ��� \�������� � @ *����<� �>� �> �> ���<+� ���� �>$�� �� > ��~��� ª ������ ����® ��� � �� �� {|��� �} � ���� ����£� %������������������ ����� ���� |� �� {{| �| � �@ 468 BUFFALO LAW REVIEW [Vol. 62 money (we suppose).80 But if Jerry and Tom did not owe each other anything, it would not make sense to say that Jerry had the ability to declare Tom even with him. �� A Proportional and Appropriate Act. Another condition is that Tom must have done something for Jerry that is somehow roughly proportional to the debt he owed.81 If Tom’s favor to Jerry were extremely small as compared to the amount owed, then it would not make sense for Jerry to call Tom even.82 One might think that the better characterization of Jerry’s waiver of the debt would be as a gift to Tom— though Hershovitz himself does not say this explicitly.83 But this does not mean that the value of the favor must equal that of the debt.84 The act must also be appropriate, insofar as it’s reasonable to assume that “there are moral limits on what sorts of things people can properly regard as proportional.”85 An act that involves intentionally making Jerry worse off would obviously not do. �� Acceptance. Hershovitz notes that, ideally, Tom and Jerry “are not even until they jointly decide to regard one another as even.”86 Tom and Jerry ideally must be persuaded that they are in fact even with each other. Hershovitz uses these insights to revise our understanding of corrective justice, and in turn, tort law. In the context of corrective justice, rather than a creditor declaring his debtor even, it is the victim of wrongdoing who obtains a power to declare the wrongdoer even once the victim has been wronged. Once we recognize that a victim of 80. Id. at 118. 81. Id. at 120 (“[P]rior to the declaration Tom must have done something which could plausibly count as grounds for [being declared even].”). 82. Id. (“Tom’s action must be proportional to the debt. As I said before, if Tom’s debt was significant and his assistance slight, Tom would likely resist Jerry’s declaration, but even if he acquiesced, Tom and Jerry would not be even.”). 83. Id. 84. Id. at 118 (denying that Jerry’s declaration of evenness means “that he has judged that Tom’s services are worth approximately the debt owed”). 85. Id. at 120 (“In addition to ruling out cases where Tom has done nothing, we can rule out cases in which the act in question harmed Jerry.”). 86. Id. at 119 (emphasis added). 2014] MAKING AMENDS 469 wrongdoing has this power, a new picture of corrective justice emerges. According to Hershovitz, corrective justice occurs when the victim and wrongdoer are validly declared even with each other.87 And, as we have seen, whether this declaration is valid depends on numerous background conditions. Thus, we can understand part of the process of corrective justice as making sure that these various background conditions occur. To illustrate, suppose that rather than a pre-existing debt to Jerry, Tom wrongfully injured Jerry’s leg.88 Again, many factors determine whether Jerry’s declaration of evenness succeeds. There must be a declaration of the kind, “we’re even,” Tom must actually do something for Jerry, and Jerry ordinarily must accept the act as adequate. Whether Tom’s act is adequate will in turn depend on a number of other factors. Suppose Jerry and Tom are friends and the injury was accidental.89 Perhaps a sincere apology might suffice to support a declaration of evenness.90 Suppose they are not friends but that Tom apologizes and offers compensation.91 Maybe this will suffice. But now suppose that Tom intentionally and maliciously injured Jerry.92 A mere apology and offer of compensation might not be enough to support Jerry’s declaration of evenness.93 In any event, corrective justice is fundamentally about securing a declaration of evenness between wrongdoer and victim. And to do so the wrongdoer incurs an obligation to do something for the victim in the aftermath of the wrongdoing, even 87. See id. at 118-20. 88. See id. at 121. 89. See id. (“It is hard to say without knowing something about Tom and Jerry’s relationship, and also just what Tom did. If Tom and Jerry are friends, and Tom was merely negligent in breaking Jerry’s leg, it is easy to imagine that a sincere apology will suffice.”). 90. According to Hershovitz, corrective justice potentially requires apologies. See id. But others disagree. Id. at 112 (“Many philosophers would parse this differently. They would say that returning the ball is a matter of corrective justice, but apologizing is not, even though it may be morally obligatory.”). 91. See id. at 121. 92. See id. 93. See id. 470 BUFFALO LAW REVIEW [Vol. 62 though the precise remedy is not specified. This is the getting-even conception in a nutshell. Notice how Hershovitz’s analysis contrasts with the Aristotelian’s conception. An Aristotelian interpretation of Tom and Jerry’s situation is straightforward: Tom would have to do what he can to help repair Jerry’s leg, which typically means compensating Jerry to offset financial losses resulting from his injury. Nothing more, nothing less. Anything else that we could ask Tom to do for Jerry would not be in the domain of corrective justice. In addition to exposing traditional theories of corrective justice to the remedies objection, Hershovitz claims that requiring reparations is a problematic feature of traditional accounts, since efforts to fully undo the injuries that flow from wrongdoing are bound to fail; after all, at a minimum, we cannot undo the time lost and energy expended in trying to fix things.94 B. Getting Even Through Tort Law As we have seen, Hershovitz thinks that corrective justice is about a victim’s getting even with a wrongdoer, and in turn, that parties are “even” with each other only if there has been a valid declaration of evenness declaring them even with each other. A declaration of evenness, moreover, is valid only when certain prerequisites have been satisfied. There must be, for example, a proportional and appropriate act by the wrongdoer that supports the declaration. And ideally, though not necessarily, both parties must accept the declaration of evenness. We still seem a long way from providing an account that helps illuminate tort law. After all, getting even seemingly depends on innumerable facts besides obtaining an adequately supported, joint declaration of evenness; tort law, by contrast, purports to dole out corrective justice while taking into account a much more limited set of variables. 94. See id. at 117 (“We cannot undo what we have done. No matter how hard we wish that we could turn back time when a trigger is pulled or a driver hits a child, we cannot.”); see also Scott Hershovitz, What Does Tort Law Do? What Can it Do?, 47 VAL. U. L. REV. 99, 110 (2012) [hereinafter Hershovitz, What Does Tort Law Do?] (“We can’t ‘reverse the wrongful transaction’ for someone who has been raped, or slandered, or falsely imprisoned.”). 2014] MAKING AMENDS 471 What’s more, people file lawsuits when they cannot secure joint settlements outside of the court system. But these are the right kinds of observations to make to understand the relationship between the getting-even account and tort law. The felicity conditions that must be satisfied for parties to get even with each other are, according to Hershovitz, complex and “nuanced.”95 And one person seeking a declaration of evenness may not get it from the other person. Nor is it surprising that parties often disagree sharply about what conditions must be satisfied for them to be even. And even if they agree about those conditions, they still might disagree about whether those conditions have been satisfied. Tom might think an apology suffices; Jerry might think the apology insincere or want something more. And all of these problems presuppose that both parties are willing to sit down and negotiate. What if Tom declines to negotiate? Absent a successful negotiation, and in certain societies that do not have elaborate legal systems, Hershovitz notes that one unilateral option for getting even is for the injured party to seek revenge.96 Here Hershovitz embraces the ordinary implication of the phrase “getting even” by pointing to old Nordic methods of dispute resolution as historical precedent.97 He details a case in which Norwegian merchants chop off an Icelandic man’s hand.98 The merchants are confronted by other Icelanders and asked to pay a large amount of money.99 When the Norwegians decline, the Icelanders respond by threatening to chop the hand off one of the other Norwegians.100 The Norwegians back down, agreeing to pay the requested price.101 95. Hershovitz, Corrective Justice, supra note 9, at 121. 96. See id. at 123. 97. Id. 98. Id. 99. Id. 100. Id. 101. Id. 472 BUFFALO LAW REVIEW [Vol. 62 This brutal practice—indeed, any practice of seeking or threatening revenge—seems destined to generate cycles of violence.102 To prevent violence from spiraling out of control, Nordic peoples selected an oddman—an impartial arbiter who tried to persuade disputing parties to agree to a resolution that both parties could regard as fair.103 Hershovitz describes selecting an oddman as a way of “outsourcing the performative necessary to get the parties even, and their work was subject to a familiar felicity condition”—i.e., getting parties to agree that they were even.104 And here is where the point becomes important for purposes of modern tort practice. The law steps in as the modern analogue to oddmen, adjudicating disputes only when the parties cannot themselves iron out how to get even with each other on their own: We prohibit private violence as a response to wrongdoing, but we maintain the institution of the oddman, in the form of judges and juries. When parties cannot negotiate their way their way back to even, we offer a judicial failsafe—compulsory process, followed by garnishment and attachment. A wrongdoer who will not bargain can be haled into court and forced to submit to a jury’s judgment as to what will render him even with his victim. Though courts are fond of saying that the plaintiff should be made whole, that is not in fact what juries are asked to do. They are typically instructed to award “fair and reasonable” compensation for a plaintiff’s injury, and in the cases where the wrongdoing is willful and wanton, they may go beyond, and award punitive damages too.105 So how do our courts achieve corrective justice? The same way that oddmen achieved corrective justice, by persuading us (including, ideally, the parties to the dispute) that the parties are even: “Whether courts succeed in doing justice depends on whether people regard the remedies awarded as sufficient to render prevailing plaintiffs even.”106 In some cases, compensatory damages will suffice, in others punitive 102. See, e.g., id. at 124. 103. Id. 104. Id. 105. Id. at 125. 106. Id. 2014] MAKING AMENDS 473 damages are enough, and still others, injunctive relief will be necessary.107 In sum, Hershovitz thinks getting even does a better job of representing what tort actually involves than ideas traditionally associated with corrective justice, such as repairing injuries or making plaintiffs whole.108 As we will see below, Hershovitz thinks that the getting-even conception resists the civil recourse broadside.109 Moreover, Hershovitz claims that the getting-even picture marks an improvement on the Aristotelian picture.110 After all, corrective justice aspires to do what it simply cannot do—i.e., putting victims back to where they were prior to being injured by repairing or annulling losses.111 But corrective justice is not primarily about repairing or annulling losses—it is about private parties getting even with each other, and failing that, “[giving] people who have been wronged an opportunity to get even” by invoking a nonviolent system able to impose evenness on them.112 One unilateral way someone can get even for wrongdoing is by taking revenge;113 another unilateral option is by filing a lawsuit. The success of the tort system depends on its being seen as imposing reasonable terms of evenness among disputants, including by imposing remedies that might require more than simply affording compensatory damages.114 107. Id. at 127. 108. Id. at 126. 109. Id. 110. Id. 111. Id. 112. Id. at 127. 113. Hershovitz, What Does Tort Law Do?, supra note 94, at 116-17 (claiming that “[t]he virtue in revenge was that it provided victims a way to get even with wrongdoers unilaterally” and that “tort suit plays a similar role to revenge”). 114. See Hershovitz, Corrective Justice, supra note 9, at 125 (“Whether courts succeed in doing justice depends on whether people regard the remedies awarded as sufficient to render prevailing plaintiffs even. That is, it depends on whether their performance is persuasive.”). 474 BUFFALO LAW REVIEW [Vol. 62 III. EVALUATING THE GETTING-EVEN CONCEPTION Having reviewed the three main objections to corrective justice posed by civil recourse theorists and Hershovitz’s attempted rehabilitation of corrective justice in terms of getting even, let us evaluate the getting-even conception. This Part begins by assessing whether Hershovitz’s theory accommodates the tripartite objection posed by Zipursky and Goldberg. Although Hershovitz’s account does provide the resources for adequate responses (once supplemented by additional explanation), we will see that there are strong independent reasons to reject his theory. This will help pave the way for a better approach to corrective justice by helping us avoid pitfalls. A. Does Getting Even Avoid the Remedies Objection? Recall the first civil recourse objection. It observed that tort law allows a broad range of remedies besides compensatory damages, even though only compensatory damages make sense in light of the Aristotelian’s duty of repair.115 Hershovitz’s conception, by contrast, is far more flexible because, on his view, getting even—or for parties to be persuaded that they are even—might require more than simply compensating.116 A maliciously calculated attack might require, for example, punitive or exemplary damages in addition to compensatory relief.117 A similar story might be told for injunctive relief: a serial trespasser might have a restraining order imposed on him.118 This might be required to get even. Notice that the kind of response Hershovitz provides is not unique to the getting-even approach. Hershovitz aims to characterize a duty that is consistent with a broader range of remedies beyond compensatory relief. But Hershovitz recognizes implicitly that the only way to do this is by increasing the level of generality at which the relevant duty is characterized. Out goes the relatively narrow duty of 115. See discussion supra Part I.A. 116. See Hershovitz, Corrective Justice, supra note 9, at 127. 117. See id. 118. See id. 2014] MAKING AMENDS 475 repair. In comes the much broader duty to reach (get?) even. And surely Hershovitz is correct to suggest that the broader characterization is a virtue since it is consistent with a broader range of remedies. But we must also acknowledge that increasing the level of generality has costs. Traditional corrective justice provides some relatively determinate and principled standards for evaluating remedies in tort law. To the extent that a jury renders awards far beyond repair-based, compensatory relief (where punitive damages are unavailable), courts are instructed to rein in those awards.119 And as John Gardner observes, compensatory relief remains the only relief available “as of right” in tort cases.120 Increasing the level of abstraction renders this feature of remedial practice in tort law mysterious. Why should compensatory relief be the default form of relief in tort law, and why are other forms so often characterized as “extraordinary”?121 Ironically, then, increasing the level of generality allows Hershovitz to accommodate more forms of relief (and thus avoid the remedies objection), but at the apparent price of being able to explain or justify fewer details about tort’s remedial 119. Absent that, lawyers typically have solid grounds for appeal. See, e.g., Zipursky, Civil Recourse, supra note 2, at 749. 120. See Gardner, Torts and Other Wrongs, supra note 8, at 62. Gardner also examines in detail theoretical implications of private actions based in equity for civil recourse theory and argues that equity-based claims differ fundamentally from torts in that the former gives remedial priority to restitution and injunctive relief, while the latter gives priority to reparations. See id. at 59. 121. For statements regarding the extraordinary nature of injunctive relief, see, for example, United States v. City of Philadelphia, 644 F.2d 187, 191 n.1 (3d Cir. 1980) (describing injunctions as an “extraordinary” form of relief); Lewis v. Spagnolo, 710 N.E.2d 798, 815 (Ill. 1999) (“A mandatory injunction is an extraordinary remedy which may be granted when a plaintiff establishes that his remedy at law is inadequate and that he will suffer irreparable harm without the injunctive relief.”) (emphasis added); State ex rel. Fenske v. McGovern, 464 N.E.2d 525, 528 (Ohio 1984) (describing injunctive relief as an “extraordinary remedy”). For statements regarding the extraordinary nature of punitive damages, see, for example, Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 680 (Ariz. 1986) (calling punitive damages an “extraordinary civil remedy”); Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. 1996) (“Punitive damages thus are like other cases requiring the clear and convincing standard of proof: the remedy is so extraordinary or harsh that it should be applied only sparingly.”) (emphasis added). 476 BUFFALO LAW REVIEW [Vol. 62 practices, such as the fact that compensatory damages are the default mode of relief.122 That is a cost Hershovitz willingly incurs.123 Accordingly, we should conclude that the getting-even conception does avoid the first objection as advertised. There is a general lesson here, which applies to any attempt to defend corrective justice by increasing the level of generality at which the relevant duty is described. That is, increasing the level of generality will face the prima facie problem of being able to explain fewer features of tort law’s remedial practices. Any account of corrective justice that de- emphasizes repair will have to explain why this is not too tough a pill to swallow. B. Does Getting Even Avoid the Substantive Standing Objection? Hershovitz claims that the getting-even approach also avoids the substantive standing objection, which argued that corrective justice could not account for tort law’s substantive standing elements.124 The idea here was that Palsgraf, for example, needed to do more than simply prove that the railroad company committed a wrongdoing causally connected to her suffering harm; she needed to show that the 122. This does not mean, however, that Hershovitz—or anyone else who prefers the increasing-the-abstraction strategy—has no response available. It is possible that traditional corrective justice theories view the default practice of providing compensatory relief as far too parochial. One could imagine a tort system, quite like ours, in which there were no kinds of remedies afforded as of right, and according to which the question of appropriate remedies were far more up for grabs. The fact that compensatory relief is afforded as of right, or deemed the most important way to achieve corrective justice is, on this view, a highly contingent artifact of the Anglo-American legal culture worthy of no special consideration. One potential difficulty with this view is that much of tort practice is contingent, yet we still make judgments about the relative importance of these contingent practices that we try to nevertheless accommodate in our explanatory theories. 123. And, as we will see in Part V, the making-amends approach also incurs this apparent cost. See infra Part V.D.1. But it will also be explained why this is not too tough a pill to swallow. See infra Part V.D.1. 124. Hershovitz, Corrective Justice, supra note 9, at 108; see also discussion supra Part I.B. 2014] MAKING AMENDS 477 company “wronged her.”125 This criticism does not touch the getting-even account, according to Hershovitz, since the point of tort law is not (as per the Aristotelian conception) to make a person whole, but rather to provide people opportunities to get even.126 Substantive standing requirements determine who “[has] cause to get even” by “pick[ing] out those who have reason to resent, and not simply regret, a tortfeasor’s behavior.”127 Hershovitz thus thinks that his account steers clear of this objection in a way that the Aristotelian conception does not: “The point is to give people who have been wronged an opportunity to get even, and one has not been wronged unless one’s rights were violated. The standing requirements in tort law attempt to pick out people who have cause to get even.”128 This is certainly part of the story. But only part: it is unclear why an Aristotelian could not avail himself of precisely the same response. Yet recall that Zipursky thought that this kind of response was inadequate.129 A dilemma purportedly befalls traditional views of corrective justice.130 On the one hand, principles of corrective justice would impose liability in cases where tort law will not. This is because, according to Zipursky, principles of corrective justice lack the moral equivalent to the substantive standing requirements contained in tort doctrine: a person who is foreseeably injured as a result of another’s negligence has a genuine moral claim for reparations against the injurer without having to establish anything else.131 But it does not accurately describe the basic structure of tort claims, since all tort claims further require that plaintiffs establish substantive standing. On the other hand, principles of corrective justice that succeed in accommodating substantive standing requirements no longer 125. Hershovitz, Corrective Justice, supra note 9, at 108. 126. Id. at 126. 127. Id. at 127. 128. Id. 129. See supra Part I.B. 130. See supra Part I.B. 131. See supra Part I.B. 478 BUFFALO LAW REVIEW [Vol. 62 appear plausible as moral principles according to Zipursky.132 Instead, they contain technical terms like “responsibility” that look like moral concepts, but which are only empty vessels that contain whatever features tort law happens to have, including substantive standing requirements.133 A more complete response to Zipursky involves rejecting his assumption that the scope of liability suggested by moral principles of corrective justice must map perfectly onto the scope of legal liability imposed by the substantive rules of tort law. Corrective justice theorists need not be committed to this position, nor does it seem a reasonable requirement that corrective justice reflect such a mapping. To see why, suppose, for example, that a newspaper reporter negligently reports a story about a government official in a way that harms his reputation severely. Morally speaking, corrective justice might suggest that the reporter ought to do something to compensate the official for the harms he has suffered as a result of the negligence. But the fact that there might be no legal liability in these circumstances may reflect accommodations to, say, the First Amendment. That is, there are fine-grained limitations on liability that no theory of corrective justice could plausibly be faulted for not “predicting,” such as First Amendment constraints on legal liability for defamation.134 After all, we should not expect a theory of corrective justice to provide a complete theory of social or political justice or, more narrowly, a theory of free speech. Goldberg and Zipursky’s complaint boils down, it seems, to the commonplace that the scope of legally actionable wrongs is not coextensive with those that are morally wrong, which is hardly a surprise, since as a general matter what is immoral is often not unlawful. In the same vein, corrective justice theory does not come with a pre-packaged theory of actionable social wrongs. 132. See supra Part I.B. 133. See supra Part I.B. 134. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (requiring a showing not of mere negligence, but of “actual malice”—i.e., “with knowledge that [the defamatory statement] was false or with reckless disregard of whether it was false or not” in order for a public official to maintain a defamation claim relating to his official conduct). 2014] MAKING AMENDS 479 Corrective justice tells us what to do in the aftermath of wrongdoing, but it does not tell us what those wrongs are. Courts and legislatures define what wrongs are actionable in courts, and in any event, it is obvious that not every moral wrongdoing is legally actionable, or should be. Rules of substantive standing are in the business of helping us determine who has been wronged and separating them from those who have simply suffered the unwelcome side effects of those wrongdoings. In short, criticizing corrective justice for failing to account for substantive standing requirements amounts to criticizing it for failing to account for doctrinal guides that help define, albeit imperfectly, who has been wronged. C. Does Getting Even Avoid the No-Legal-Duty Objection? Now recall the no-legal-duty objection, which is that corrective justice suggests, incorrectly, that defendants should owe a legal duty of repair that arises immediately upon wrongfully injuring victims, even though tort law does not recognize any such immediate duty of repair.135 To bolster this point, Zipursky claimed that tort law typically does not award prejudgment interest, which he sees as evidence that no legal obligation to repair or remediate arises the moment that tortious conduct occurs.136 Hershovitz claims that his conception has the resources to respond to this objection.137 But his response is incomplete and problematic in some ways. With his getting-even conception in tow, Hershovitz gives the following response: corrective justice imposes a duty on the wrongdoer to reach evenness with the victim, but the question of what is required for the parties to reach a state of evenness is open ended and potentially subject to negotiation 135. See supra Part I.C. 136. See Zipursky, Civil Recourse, supra note 2, at 719-20 (claiming tort law is different than a situation where “one who fails to pay under a contract will incur prejudgment interest because payment is owed at the time the contract specifies for performance, not at the time a court reaches a judgment”). 137. See Hershovitz, Corrective Justice, supra note 9, at 109. 480 BUFFALO LAW REVIEW [Vol. 62 with the wrongdoer.138 That is, “[u]ntil a court declares that a defendant must pay damages, the defendant is not under a duty to do it.”139 This is supposed to explain why, in most tort cases, prejudgment interest is not awarded.140 During the entire prejudgment period before the verdict, the content of the wrongdoer’s duty to make things even is open-ended.141 And since the duty to reach evenness does not automatically include a duty to compensate the victim at the moment of wrongdoing, prejudgment interest is not awarded.142 After all, there might not have been a duty to make things right by compensating at all. There are two problems with this response. The first is that it ducks the main objection. The issue of prejudgment interest was simply one piece of evidence marshaled to bolster a more fundamental, structural objection by Goldberg and Zipursky: that tort law recognizes no duty at all that arises and attaches immediately the moment a tort occurs, even though all corrective justice theories in the Aristotelian tradition do recognize that the duty of repair attaches at the moment the victim suffers wrongful losses.143 And in response to this deeper objection, Hershovitz has no response at all. This is because, for Hershovitz, like the Aristotelians, wrongdoers have duties to reach evenness that arise and attach to them the moment they wrongfully injure another.144 138. Id. at 128. 139. Id. 140. Zipursky, Civil Recourse, supra note 2, at 719 (claiming that “one who fails to pay under a contract will incur prejudgment interest because payment is owed at the time the contract specifies for performance, not at the time a court reaches a judgment”). 141. See Hershovitz, Corrective Justice, supra note 9, at 128. 142. See id. at 127-28. 143. Zipursky, Civil Recourse, supra note 2, at 720; see also Goldberg, Wrongs Without Recourse, supra note 6, at 13 (noting that “the conversion of the moral duty of repair into a legal duty does not happen through the tort system unless and until the victim decides to press a claim against the defendant”). 144. See Hershovitz, Corrective Justice, supra note 9, at 128 (“The duty that arises at the moment of wrongdoing is imperfect, or open-ended; a wrongdoer must take corrective action sufficient to support a declaration that the parties are even.”) (emphasis added). 2014] MAKING AMENDS 481 Hershovitz thus sides with the Aristotelians over the civil recourse theorists when it comes to the question of when, morally speaking, a duty arises from the point of view of corrective justice.145 Hershovitz departs from the Aristotelians, however, in describing the duty as “imperfect” when the wrongdoing occurs.146 The precise content of the wrongdoer’s duty to the victim arises at the outcome of a process; it is not determined automatically at the moment when the wrongful conduct took place.147 Thus, the actual conduct required of the wrongdoer to make things even with the victim does not arise until the end of this negotiation process. But notice that this still is not wholly responsive. The response fails to explain the fact that those who impose wrongdoings on victims are still not under an affirmative legal obligation to do anything about those wrongs unless the victims prevail in lawsuits (or at least settle). Hershovitz still claims, along with the traditional corrective justice theorists, that a duty to get even still arises the moment the wrongdoing occurs. And this is precisely what Goldberg and Zipursky deny.148 Corrective justice theorists, Hershovitz included, have a better response at their disposal, which is to reject Goldberg and Zipursky’s assumption that corrective justice implies that there ought to be a legal duty whenever the moral duty of repair arises.149 This is not a very charitable assumption. Once again, a better response—though by no means decisive—will simply point out that there are other considerations in play whenever we are considering whether to legally protect a moral right in general. We have moral duties to keep promises and not to lie, other things being equal, yet this does not mean there should be affirmative legal obligations to refrain from lying and keep promises in 145. Id. 146. See id. 147. See id. at 109, 128. 148. See supra Part I.C. 149. I am indebted to Scott Hershovitz for allowing me to see this point more clearly. 482 BUFFALO LAW REVIEW [Vol. 62 the same way we have affirmative legal obligations to pay taxes. A more robust response along these lines will be offered later on.150 So the first claim was that Hershovitz does not seem to provide a direct response to the no-legal-duty objection. A second problem with Hershovitz’s discussion of the objection contests his claims regarding prejudgment interest. In a nutshell, despite Hershovitz’s claim to the contrary, his theory cannot automatically rule out awards of prejudgment interest in tort cases.151 That is, the getting-even conception cannot rule out the possibility that, at least in some tort cases, prejudgment interest should be required in order to make the parties even. We can see this in two ways. First, Hershovitz seems committed to holding that civil actions arising out of contract disputes would seemingly count as torts.152 But once Hershovitz concedes that civil actions arising from contract disputes are torts, he can no longer maintain that all actions arising in tort rule out the award of prejudgment interest. After all, contract law explicitly allows for the award of prejudgment interest.153 Second, setting aside contract claims, nothing in Hershovitz’s theory explains why 150. See infra Part V.C. 151. Hershovitz, Corrective Justice, supra note 9, at 128. 152. At least there is no indication that he disagrees with the civil recourse theorists on this point. See John C.P. Goldberg & Benjamin C. Zipursky, Civil Recourse Revisited, 39 FLA. ST. U. L. REV. 341, 349 (2011) [hereinafter Goldberg & Zipursky, Civil Recourse Revisited] (calling civil recourse “a broad concept” capable of encompassing causes of action arising from breach of contract, as well as “other domains of private law”). 153. See, e.g., CAL. CIV. CODE § 3287(b) (West 2014) (“Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.”). Tellingly, California starts the prejudgment-interest clock by reference to the date when the victim makes the wrongdoer aware of the precise amount of compensatory relief sought—not necessarily when the lawsuit was filed. See Levy-Zetner Co. v. S. Pac. Transp. Co., 142 Cal. Rptr. 1, 25 (Cal. Ct. App. 1977) (explaining that “prejudgment interest runs from the date when the damages are of a nature to be certain or capable of being made certain by calculation and when the exact sum due to the plaintiff is made known to the defendant”). 2014] MAKING AMENDS 483 prejudgment interest should not be routinely awarded in cases involving non-contractual torts. Suppose that, as one commentator claims, “prejudgment interest is now widely considered necessary to ensure full compensation to the plaintiff and to prevent unjust enrichment of the defendant.”154 If this is correct, then Hershovitz should allow that getting even might similarly require awarding prejudgment interest in even run-of-the-mill torts cases. Indeed, several jurisdictions appear to do just this: Massachusetts awards prejudgment interest in personal injury actions, with interest accruing from the moment the lawsuit is filed.155 California courts explicitly hold that, in determining whether to award prejudgment interest, “the key distinguishing factor was not . . . whether the cause of action arose in tort or contract, but rather whether the damages were readily ascertainable.”156 The point is not merely that some jurisdictions depart from Goldberg and Zipursky’s view that prejudgment interest is not ordinarily awarded to successful torts plaintiffs (though, as we have seen, a cursory search shows that there are more than simply a few dissenting jurisdictions).157 Rather, the point is that Hershovitz’s conception should not rule out, a priori, the possibility that getting even could reasonably require prejudgment interest in such cases, given how open-ended the getting-even approach presents itself. 154. Michael S. Knoll, A Primer on Prejudgment Interest, 75 TEX. L. REV. 293, 298 (1996). 155. MASS. GEN. LAWS ch. 231, § 6B (2013) (“In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.”), available at http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/ Chapter231/Section6B. 156. Wisper Corp. v. Cal. Commerce Bank, 57 Cal. Rptr. 2d 141, 146 (Cal. Dist. Ct. App. 1996) (emphasis added) (quoting Levy-Zentner Co., 142 Cal. Rptr. at 23); see also CAL. CIV. CODE § 3288 (West 2014) (“In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.”) (emphasis added). 157. See, e.g., CAL. CIV. CODE § 3288; MASS. GEN. LAWS ch. 231, § 6B. 484 BUFFALO LAW REVIEW [Vol. 62 Once again, we should take a step back and consider some general lessons. First, any theory positing that wrongdoers have duties of redress—which arise and attach to them the moment they wrong others—must contend with the no-legal-duty objection. They will have to explain why tortfeasors face no legal obligation towards their victims until they are held liable (or settle before the imposition of liability). Merely increasing the level of generality at which the duty is described—e.g., as a duty to rectify instead of a duty to repair—fails to provide the needed explanation, since increasing the level of generality at which the duty is described does not address the limitations on that duty—e.g., when that duty attaches and under what conditions. Nor will increasing the level of generality explain why prejudgment interest is not ordinarily awarded in torts. Once we allow that there will be a greater range of remedies by replacing a duty of repair with, say a duty to reach evenness, this immediately opens up the door for awards of prejudgment interest in tort. But, with respect to the last point, this is potentially a virtue: at least some prominent jurisdictions award prejudgment interest in cases arising from non-contractual torts.158 This seems like a heartening prediction of any corrective justice theory that seeks to re- characterize the duty of repair in more general terms. And these jurisdictions also arguably provide countervailing evidence that undermines support for the no-legal-duty objection. Let us assume for the sake of argument that Hershovitz has the resources to overcome the tripartite critique. In the remaining subsections, we will see independent reasons why we should not accept his theory. D. Can Tort Law Help Us Get Even? One worry with Hershovitz’s view is that no amount of relief offered by the tort system could render the victim “even” with the wrongdoer.159 Would we tell a parent who successfully sues a drunk driver for killing her children that, after winning a verdict, she is even? Or would it make sense 158. See, e.g., CAL. CIV. CODE § 3288; MASS. GEN. LAWS ch. 231, § 6B. 159. Hershovitz, Corrective Justice, supra note 9, at 111. 2014] MAKING AMENDS 485 to say to the rape victim who successfully sued her rapist that she is even? Maybe in the eyes of the law. But suppose these victims denied that they were even. Would they be wrong? Hardly: denying that they are “even” would make just as much moral sense as if they were to deny that they’d been made “whole.” Indeed, Hershovitz spends considerable time arguing, on similar grounds, that the Aristotelian make- whole metaphor makes no sense—and it is not obvious that Hershovitz’s get-even metaphor does any better.160 The upshot is that evenness might be just as misleading as the Aristotelian conception and for similar reasons. Often evenness is impossible; and to the extent that the law holds out the hope of evenness, it promises the impossible. In reply, Hershovitz might point out that his view at least holds a comparative advantage over the Aristotelian picture. The Aristotelian conception promises the impossible insofar as it is never possible, strictly speaking, to fully undo the losses attributable to wrongdoings.161 There will always be lost time, for instance, that cannot be given back to the victim. By contrast, the Nordic cultures discussed earlier believed that it was possible for victims to get even with wrongdoers.162 But it is not at all clear why these other cultures’ beliefs about the possibility of “getting even” are any more credible than the judgments of our current legal culture, which holds that it is possible to satisfy one’s duty of repair.163 In short, the claimed comparative advantage is dubious. 160. See id. at 110-17 (arguing against the Aristotelian conception of corrective justice on the grounds that it is impossible to truly ever make a victim “whole” again or to return the victim to the position he or she would have occupied but for the injury). 161. Id.; see also supra Part II.B. 162. See supra Part II.B. 163. See Hershovitz, Corrective Justice, supra note 9, at 116 (claiming that “discussions of corrective justice are chock full of qualifiers”); see, e.g., STATE OF CONNECTICUT, CIVIL JURY INSTRUCTION 3.4-1 (modified Apr. 5, 2012), available at http://www.jud.ct.gov/ji/Civil/part3/3.4-1.htm (“You must attempt to put the plaintiff in the same position, as far as money can do it, that (he/she) would have been in had the defendant not been negligent.”) (emphasis added). 486 BUFFALO LAW REVIEW [Vol. 62 E. Does Getting Even Involve Justice (Fit for Tort Law)? 1. An Initial Objection. Another concern with Hershovitz’s conception of corrective justice is that it ends up licensing potentially horrific acts of vengeance—acts that seem morally troubling to say the least. To see how, recall that, according to Hershovitz, one unilateral way a victim can get even with the wrongdoer is by exacting revenge on a wrongdoer—perhaps even violent revenge.164 Another exemplar of getting even includes Nordic threats of dismemberment and the lex talionis—the “eye for an eye”— retaliatory conception of justice.165 Hershovitz sees these not as cases in which corrective justice has failed, but rather he sees them as successful instances of corrective justice in action. The fact that the getting-even conception licenses both revenge and the lex talionis may seem troubling. The lex talionis, in particular, is not a morally attractive account of justice. Consider one quick argument against the view. An eye-for-an-eye conception of justice implies that it is just to torture torturers or rape rapists. But doing these things seems deeply unjust. Assuming that no plausible conception of justice should legitimize such morally horrifying acts, we should not endorse the lex talionis. The fact that Hershovitz’s getting-even theory legitimizes revenge and the lex talionis, at least in certain circumstances, should make us worry.166 164. Hershovitz, Corrective Justice, supra note 9, at 122 (noting that getting even “in the classic sense” means that someone “can seek revenge”). 165. Id. at 123. Hershovitz states: The Icelanders in the story did not regard taking an eye for an eye as the recipe for corrective justice, akin to the Aristotelian proposal that wrongful transactions should be reversed. For them, an eye for an eye was a failsafe. It provided a way of doing justice unilaterally, which was important in a world without tort law. But an eye for an eye was also what economists call a penalty default rule, encouraging wrongdoers to take their victim’s claims seriously. Id. 166. Although Jeremy Waldron does not endorse this argument against the lex talionis, he states it succinctly in his Lex Talionis, 34 ARIZ. L. REV. 25 (1992). He said: 2014] MAKING AMENDS 487 But this argument is surely too quick. Hershovitz would reject the idea that the getting-even conception, under all circumstances, straightforwardly endorses lex talionis or revenge as appropriate modes of justice. Recall that there were constraints on whether two parties could be rendered even with each other.167 Some of these restrictions were moral constraints.168 And whether it makes sense, morally speaking, to unilaterally seek revenge or seek the protection of the lex talionis depends on facts about the society in which a victim seeks justice. In a lawless society, perhaps unilateral acts of revenge are legitimate options for achieving justice; in primitive societies where the lex talionis is the only option, maybe private, unilateral revenge will no longer be available—instead, the right thing to do to get even is to find an oddman.169 And maybe in modern societies, getting even cannot be accomplished through either the lex talionis or unilateral acts of revenge, given the other options available— like the tort system. So even though Hershovitz uses revenge and the lex talionis to illustrate the getting-even conception, he has room to claim that his conception need not license, say, raping rapists or torturing torturers—or any other morally horrifying act of retaliation. His view is flexible enough to allow this response. Though the principle retains its attraction for defenders of capital punishment (“a life for a life”), people think they can discredit it almost immediately by asking “What penalty is to be imposed on the rapist, according to this principle?” Amidst the general hilarity that follows, the speaker is able to put LT [lex talionis] quietly to one side and move on, as he thinks, to some more plausible version of retributivism. Id. at 25. Jeffrey Reiman offers a version of this argument, allowing that the lex talionis indeed states a form of justice, but nevertheless insisting that some of its implications are deeply immoral. See Jeffrey H. Reiman, Justice, Civilization, and the Death Penalty: Answering van den Haag, 14 PHIL. & PUB. AFF. 115, 134-35 (1985) (arguing that, even though the lex talionis “proves the justice of beating assaulters, raping rapists, and torturing torturers . . . it would not be right for us to beat assaulters, rape rapists, or torture torturers, even though it were their just deserts—and even if this were the only way to make them suffer as much as they had made their victims suffer”). 167. See supra Part II.A. 168. See supra Part II.A. 169. See supra Part II.B. 488 BUFFALO LAW REVIEW [Vol. 62 But his view is not endlessly flexible—otherwise it would be vacuous. He is still committed to the view that revenge, the lex talionis, and tort suits have the same point or goal.170 He states this explicitly, and it is hard to overstate the importance of this claim for Hershovitz’s view. Indeed, the claim that the point that revenge and tort law have the same aim—to allow victims to get even with wrongdoers—is what makes Hershovitz’s claim so novel and provocative. But as we will see in the next subsection, it is precisely this view that makes Hershovitz’s theory so problematic as an explanatory account of tort law. 2. Explanatory Difficulties for Getting Even. The idea that the lex talionis and tort law have the same purpose—to allow a victim of wrongdoing to get even with the wrongdoer—undermines Hershovitz’s theory as an explanatory theory of tort law, insofar as it distorts rather than illuminates key features of tort law. To see why, notice that the lex talionis and revenge are typically regarded as practices that aim to punish wrongdoers.171 Jeremy Waldron, for example, interprets the lex talionis as a view about punishment.172 And in a widely anthologized work on the death penalty, Jeffrey Reiman goes to great length to clarify and understand the lex talionis as a theory of retributive, not corrective, justice.173 Suffice it to say that the lex talionis is widely understood as, at best, a theory of justice fit for punishment—i.e., a theory of retributive justice. Importantly, if we accept this natural understanding of the lex talionis as a practice that aims to punish, and acts of revenge as acts of punishment, then this raises problems for the getting-even theory as an explanatory theory of tort law in at least two important ways. 170. Hershovitz, What Does Tort Law Do?, supra note 94, at 117 (“A tort suit is not an act of revenge. But it aims to do the same thing that people taking revenge aim to do. That is, a tort suit aims to render wrongdoer and victim even in respect of the wrong.”). 171. See, e.g., Waldron, supra note 166, at 25. 172. See id. (calling the lex talionis an “approach to punishment”). 173. See Reiman, supra note 166, at 119 (“The lex talionis is a version of retributivism.”). 2014] MAKING AMENDS 489 The first way that the getting-even conception distorts tort law is by rendering mysterious the way tort law awards damages. More precisely, if the goal of tort law, revenge, and the lex talionis are all the same, and if that aim is punishment of wrongdoers, then tort law’s default remedy should be punitive rather than compensatory damages.174 True, tort law does permit punitive damages. But punitive damages are not the default mode of redress in tort law.175 Punitive damages are viewed as extraordinary and rare remedies to be afforded in extreme cases only—they are certainly not afforded “as of right.”176 But Hershovitz’s account renders this fact strange. At the very least, his account suggests that punitive relief should not be viewed as so “extraordinary” if tort law aims to afford victims the opportunity to get even with wrongdoers. Secondly, and relatedly, if the goal of tort law is the same as revenge or the lex talionis, then tort law seems somewhat redundant. After all, we already have a system of law devoted to meting out retributive justice—namely, criminal law. True, there might be different ways of securing retributive justice based on the perceived seriousness of the wrongdoing and the entity charged with enforcement. As to the latter, prosecutors are charged with pursuing criminal justice in the name of the public, whereas the victim pursues justice in tort law on her own behalf. Still, understanding corrective justice as simply another way of pursuing retributive justice blurs the distinction between tort law and criminal law.177 And if 174. I thank Greg Keating for pressing me to develop this point further. 175. See supra Part I.A. 176. See Gardner, Torts and Other Wrongs, supra note 8, at 53-55. 177. See, e.g., WEINRIB, CORRECTIVE JUSTICE, supra note 1, at 172-73. Weinrib states: Corrective justice rectifies injustices that operate on the parties in a transactionally specific way . . . linking two specific parties through the injury . . . . Punishment is different. It is state action that inflicts an adverse consequence on the wrongdoer without restoring the right of a wronged party. When the state punishes, it acts not to rectify a wrong that is transactionally specific to the plaintiff and the defendant, but to vindicate its own standing as the public guarantor of rightful order. Id. 490 BUFFALO LAW REVIEW [Vol. 62 one of the chief aims of theorizing about tort law is to illuminate how tort law is a distinctive branch of law, then the fact that Hershovitz’s approach blurs the boundaries counts as a demerit to his view as an explanatory theory. Tort law would be, arguably, criminal law by other means. 178 Of course, neither of these explanatory problems is very problematic if Hershovitz presents a revisionist, rather than explanatory, account of tort law. But if he seeks to explain many of tort law’s main features in terms of getting even, construing tort law as sharing the same aim as revenge or the lex talionis is more confusing than illuminating. And this is because, it seems, these practices do not seem to have the same aim. Despite these shortcomings, the getting-even theory paves the way to a broader conception of corrective justice that will be called the “making amends” approach. Let us turn to this conception below. IV. THE MAKING AMENDS APPROACH The previous section posed problems for Hershovitz’s getting-even account of corrective justice. But his account nevertheless yields important insights. He correctly shows, for example, that to accommodate the remedies objection, we will need to describe the relevant duty at a higher level of abstraction. After all, some remedies are not in the business of repair; some are punitive and others are nominal, and the duty must be described broadly enough to capture these facts. Instead of a duty to repair, the new approach describes the duty relevant to corrective justice as the duty to make amends. This duty is part of a principle that holds, roughly, that corrective justice occurs when and only when a person responsible for wrongs that befall others (the “victims”) 178. The same objection has been made against civil recourse theory—i.e., the positive theory of tort law put forward by Goldberg and Zipursky, which has received little attention in this paper. See, e.g., Jane Stapleton, Evaluating Goldberg and Zipursky’s Civil Recourse Theory, 75 FORDHAM L. REV. 1529, 1559- 60 (2006). See generally Gardner, Torts and Other Wrongs, supra note 8 (arguing at length that civil recourse theory fails to illuminate how tort law is distinguishable from several other areas of private law). 2014] MAKING AMENDS 491 makes amends to those victims. By focusing on making amends, we can make substantial progress in formulating an account of corrective justice that helps explain the structure of tort law and rebuts the other criticisms of the classical views encountered in Part I.179 A. Making Amends: A Preliminary Sketch 1. Wrongs and Responsibility. Someone who is responsible for a wrong that befalls another, a victim, has a duty to make amends to that victim. The first thing to notice about this claim is that it incorporates some notion of responsibility: X’s making amends to Y makes sense only if X is responsible for a wrong that has occured to Y. Suppose that Bill is struck by lightning. Now suppose that, upon hearing the news, Albert tries to make amends for Bill’s lightning- induced harms. This makes no sense unless Albert is somehow responsible for the harms. In general, a person can make amends to another only if that person is in some sense responsible for an unwelcome event that happens to another person.180 This raises two further questions. First, what kind of unwelcome events count as a wrong, and second, what kind of action makes a person responsible for the wrongs that befall another person? As to the first question, recall that corrective justice concerns the norms that govern in the aftermath of wrongdoing, but it does not supply, nor should 179. At this point, it is worth quickly mentioning the methodology used in investigating the idea of making amends. The author follows more or less a standard philosophical approach in coming up with his account of the concept of making amends. The approach involves proposing explicit principles or criteria that govern our understanding of a given concept, and which adequately reflect or capture certain “truisms” or platitudes about the concept that should be relatively uncontroversial. For more detailed discussion of an approach in the same spirit, see SCOTT J. SHAPIRO, LEGALITY 13-22 (2011). 180. Notice, by the way, that this observation immediately rules out the version of the Tom and Jerry case in which Tom and Jerry declare themselves even with each other with respect to a pre-existing debt between them. Hershovitz, Corrective Justice, supra note 9, at 118-19. This did not seem like a case involving corrective justice in any event; the fact that the making amends view fails to account for it should be regarded as a benefit of the view. Making amends applies only in cases where someone has wronged another. 492 BUFFALO LAW REVIEW [Vol. 62 it supply, a complete theory of what counts as morally wrong, or what ought to be legally recognized as a wrong. So the fact that this article does not aim to provide a full-fledged theory of wrongs should come as no surprise. That said, we can still say a little about the formal nature of wrongs presupposed by the making amends theory. There is, for example, one important limitation on how broadly we should understand the wrongs relevant to making amends, which is that making amends involves, as Goldberg and Zipursky point out, “relational wrongs.”181 The idea is that some wrongs injure a particular victim, as opposed to being wrongs as such.182 The process of making amends presupposes, as pointed out in the previous paragraph, that the wrong connects a victim with someone who is in some sense responsible for the wrong. Driving drunk is a wrongdoing even if there is no victim. Involuntary manslaughter is a relational wrongdoing given that describing the act necessarily involves mentioning a victim. Making amends necessarily involves the responsible party making amends to someone.183 Accordingly, the wrongs relevant in the making amends process are always relational wrongs, relating a responsible party to an identifiable victim.184 Turning to the second question—concerning the relation of being responsible for that corrective justice presupposes— this arguably is something that a full-fledged theory of corrective justice must grapple with. Indeed, many corrective 181. Goldberg & Zipursky, Torts as Wrongs, supra note 4, at 945-53; see also Zipursky, Rights, Wrongs, supra note 26, at 60-64. 182. Goldberg & Zipursky, Torts as Wrongs, supra note 4, at 945-46. 183. See id. 184. See id. Linda Radzik endorses the conception of making amends according to which it seems that wrongdoers have a duty to make amends for non-relational wrongs. See LINDA RADZIK, MAKING AMENDS 135-39 (2009). Radzik deserves recognition as one of the few, if not only, contemporary philosophers who have focused squarely on the topic of making amends. But I do not accept all of her analysis. 2014] MAKING AMENDS 493 justice theorists have discussed the topic at length.185 And surely the notion (or notions) of responsibility embedded in our practices of making amends is likewise an important topic. One worry is that the concept of responsibility papers over the real criteria determining whether one may fairly be held accountable. Is one “responsible” for all the harms that foreseeably injure others as a result of one’s misconduct? If so, this might be problematic if the principle aims to explain tort law, since very often a person is not liable despite being “responsible” for the harmful consequences of their action in this sense.186 Moreover, regardless of how the concept of responsibility is specified, the moral principle proposed here poses problems because we should not hold those who truly lack capacity morally responsible for their actions. Expecting a truly insane person to have the capacity to make amends would seem unreasonable. Yet tort law does not recognize an insanity defense.187 This article will not take up these important issues. For present purposes, we will not attempt to articulate or rely on any particular theory of responsibility in order to make sense of corrective justice. The limited goal of this article will be to articulate and defend a more expansive conception of corrective justice that is not vulnerable to the objections of 185. See, e.g., COLEMAN, RISKS AND WRONGS, supra note 1, at 197-385; Stephen R. Perry, Responsibility for Outcomes, Risk, and the Law of Torts, in PHILOSOPHY AND THE LAW OF TORTS 131-82 (Gerald J. Postema ed., 2001). 186. See supra Part I.B. (discussing the dilemma that played a crucial role in the substantive standing objection). 187. James Goudkamp, Insanity as a Tort Defense, 31 OXFORD J. L. STUD. 727, 727-28 (2011) (recognizing that “[a]ll of the major common law jurisdictions withhold insanity as an answer to liability in tort” but proceeding to argue against this practice). Courts do, however, make accommodations for defendants lacking certain capacities. Blind people, for example, are not held to the same standard of care applicable to defendants with fully functioning eyesight. See ARTHUR BEST & DAVID W. BARNES, BASIC TORT LAW: CASES, STATUTES, AND PROBLEMS 112 (2d ed. 2007). Best and Barnes state: Exceptions to the reasonable person standard developed when the individual whose conduct was alleged to have been negligent suffered from some physical impairment, such as blindness, deafness, or lameness. Courts also found it necessary, as a practical matter, to depart considerably from the objective standard when dealing with children’s behavior. Id. 494 BUFFALO LAW REVIEW [Vol. 62 Goldberg and Zipursky. And this can be done, as we will see, without signing on to a fully fleshed out theory of responsibility. 2. Conciliatory Gestures. The claim so far is that those who are responsible for wrongs that befall victims have a duty to make amends to those victims. Now let us consider the nature of making amends itself. How do those responsible for wrongs make amends? Making amends requires, we claim, a certain kind of conciliatory gesture by the responsible party toward the victim. To unpack this claim, let us begin with the gesture requirement. That is, in order to make amends, some sort of act performed for the victim is required. To see why, consider Albert and Bill. Suppose that Albert is responsible for wrongful conduct that injures Bill, and that Albert claims to have made amends to Bill. Now suppose Charlie asks Albert how Albert made amends. In reply, Albert says he felt guilty about the wrongdoing and recognized that he should not have done it, but confesses that he did nothing for Bill. Albert, for instance, never apologized to Bill. In fact, Albert and Bill have had no contact with each other since the wrongdoing occurred; Bill does not even know that Albert felt guilty about the wrongdoing. In these circumstances, Albert’s claim to have made amends to Bill is false. Albert is making a mistake about the nature of making amends. Feeling guilty about a wrongdoing and wishing it had never happened does not suffice to make amends.188 These are appropriate attitudes to have in response to a wrongdoing. But the proper vehicle for expressing these attitudes is some sort of gesture performed for the victim. As for the kind of gesture: making amends, like Hershovitz’s notion of getting even, has a built-in flexibility. There is no detailed recipe on how to make amends in any given case. But this flexibility has limits. Not any gesture will do. The gesture should be, as just mentioned, conciliatory (rather than, say, insulting). The very word used to describe 188. Radzik points out that certain theological conceptions of making amends come close to holding that sincere repentance is sufficient to atone for one’s sins. Linda Radzik, Making Amends, 41 AM. PHIL. Q. 141, 142-44 (2004). Radzik and I agree that, for worldly purposes, private atonement is not enough. See id. 2014] MAKING AMENDS 495 the gesture, “conciliatory,” suggests that the wrongdoer has a duty to reconcile or at least seek a reconciliation of sorts with the victim. There is some truth here. But we should be careful not to over-emphasize the notion of reconciliation. Conciliatory gestures need not aim to reconcile victim and wrongdoer, and a conciliatory gesture can succeed in making amends without achieving any recognizable reconciliation. Very often victim and wrongdoer have no prior relationship to restore and no relationship other than one that exists between victim and wrongdoer. Hence, what makes an act conciliatory in the relevant sense is not that it aims to restore a prior relationship. Instead, a gesture counts as conciliatory in the intended sense if it suggests or expresses regret on the part of the wrongdoer to the victim that the wrongdoing had occurred. This last observation—that the act must be understood to signal regret by the wrongdoer that the injury occurred— is a potential source of confusion. It may be taken to suggest that a wrongdoer must subjectively feel regret for the wrongdoing in order for the gesture to count as conciliatory. And ideally, a wrongdoer should feel some regret. But the idea of a conciliatory gesture contemplated here is wholly objective. To illustrate, suppose that Hatfield wrongs McCoy in some way and thereby incurs a duty to make amends to McCoy. Hatfield knows that the right thing to do is to make amends by, say, apologizing and offering up some fresh vegetables from his garden. Now suppose that, because Hatfield and McCoy are mortal enemies, Hatfield cannot bring himself to regret the wrongdoing. Hatfield’s dour attitude does not prevent Hatfield from fulfilling his obligation to make amends. All that matters is that the gesture be reasonably recognizable as one that signals regret, even if, subjectively, wrongdoers like Hatfield cannot bring themselves to actually experience that regret. Hatfield can fulfill his moral obligation to make amends even if he does so grudgingly, just like he can satisfy his legal obligation to pay his taxes even if he does so grudgingly. So how do we know whether the gesture recognizably signals regret, given that wrongdoers need not actually feel any regret? The act should be a reasonable and adequate response by those responsible for the wrongful losses of others. We say reasonable and adequate because conciliatory �|�� ���������� � �� � � ���� ��� \������� ~�\ � �� ���������� ��� � ���� ���������� �� ����� ����� *� �����\� �� ��~��� ������ � ���������� �������� �� � ����\����\ 189 �������� �����\��� ��� ��~��� ������ ~��� ����`���� ��� ����� �� �����\� �� ��� ����\ \���� � � �������� �� � � ��~ ���� 190 ��~���~�� ~����\ �~���� ���� ������� ��������� ~�����\ ������ ���`�� �� �����\ ��� � � ��~�\� ���� �� ���^� ����\��� `����`� �������� ����������� ��� ��~��� ��� ��� �� ������~��\ � �� ���� �� \������ *�� ��~���~��� ��� �����`������ ������ ����\����\�� ~����\ �~���� �������� ���~�����\ �� ����� ~��� 191 � � ~��� �������� ����� �� � �� ~����\ �~���� ~�\ � ������� � ����� ���\� �� ����������� ���������� � �` ��� ��������� ��� �~��\ �� �� � ��\�� � � ������ �� � � ����\ 192 �� �� ����� ��� ��\ ~����\ �~���� ���~� �� ��`���� ~��� ��� ����� � �� ������������ ��~� ��� ����� � � � ���� #~����\ �~����X �� �� ������~��� ��� ~����\ {}| �`��� ���� ����£ ��`�\��£�� � �� \������� ������ `�~������������` �� �����\����~�\ � �� � ���� �� ~����\ �~���� ��� `�~�� `���� �� ����������\ ~����\ �~���� ��� `����`���� �����`� �������� ����£� ����7�_������ ���������� }� �� |� ��� � ����� �����`���� `�������� � �� ����������� �� ���\� ���� ��@ �#�*����� ���~ ���� ����������� ��� �����\� ��� �� ����� �� `������ �� ��� ���`��`� �� ~����\ �~���� �� ~������� `�~��������� �� � � �������� �� ���� �� ������� ������� �� � �� �� ����������� ��� �����\� ��� ���� ~������ �� `����`���� �����`� X� {|� �����\ �~���� �� � ���~����� � �~� �� ����`�������`����� ���`��`��� � �` ���� ~����\ �~���� �� ����������� ~��� � �� ��~��� ��������\ `�~��������� ����� �@�@� �*¯!@�!<� ������� ������� ��� ����� 4$��� ��� ������7� ��������� �£����� ��\����������`� ������� ��\� ����� ������� ���� {�� ��{�� {|{ � ������@ �#$�~�~��� � �� ��� `��~�� ��` �� ����� ������\� ������ ~�\ � ���� �� \� �� `���� ��� ���� � ����� ~��� � ��^� ���� �� ~����\ �~���� �� ���� X� {|� � � >����� !�\��� ��`������� �>!�� ����`����� � � � ���� #~����\ �~����X ��� �� ��� #������������� ������������ ������������ `�~���������� �������`���� X >­�>$� !<+@��� �����><*$¨� ����� ���� �}� �� �}� <���`� ����� � �� � � ����� ������ �� ����`����� ��� #~����\ �~����X ��`���� #�����������X� #`�~���������X� ��� #���������� X �@ *�� ��\ �� � ���� �� `������ ��� �� `������ ��`������� ����������� ��� ���� ���~����� ���� � �� ����� �``����� ���`�������� �� `�~���� ~���� � ���~���� � � >!� ���� ������� ��~� ������`� � �� ~����\ �~���� ����������� �������� ~��� � �� ��~��� � ������ ���~ �� ����������� 2014] MAKING AMENDS 497 reparations.193 This suggests that the duty of repair just is the duty to make amends. But we should resist conflating these two ideas. For one thing, the phrase “making amends” often amounts to little more than loose talk when it occurs in the literature on corrective justice.194 More importantly, our ordinary understanding of making amends seems a much broader moral notion and includes a greater variety of responses to wrongdoing than the narrower notion of a duty to repair. But this does not mean that we ought to jettison the Aristotelian’s duty of repair. The notion of conciliatory gestures contemplated here provides a useful lens through which to view traditional corrective justice theory. Traditional corrective justice theories go wrong insofar as they claim that the duty of repair is the one and only duty associated with corrective justice.195 But the relevant duty is broader than a reparative one. It is a duty to make amends, one essential ingredient of which is a conciliatory gesture. In turn, a gesture counts as conciliatory only if it is recognizable as suggesting some regret that the wrong took place. As it turns out, however, there is often no better way of expressing or suggesting regret than by trying to actually undo the damage done as a result of wrongdoing—at least to a reasonable extent. If A accidentally pushes B to the ground, there is no better way to express regret for this occurrence than for A to try to help B up off the ground. The mistake is to think that this is the only way to signal regret. 193. See, e.g., ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 104 (1999) (describing one view as holding that “if I injure someone through my carelessness, and should have foreseen that injury, I can be forced to make appropriate amends, as judged by a court of law”) (emphasis added); Jules L. Coleman, Epilogue to Risks and Wrongs: Second Edition 30 (Yale Law Sch. Pub. Law Working Paper No. 218), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1679554 (referring to a duty to “make amends or repair”) (emphasis added). Civil recourse theorists do the same. See Goldberg, Wrongs Without Recourse, supra note 6, at 13 (“In other words, if the defendant is going to be made to heed his duty of repair, it will only be by virtue of the law’s having empowered the victim to demand of the defendant that he make amends for the wrong done.”) (emphasis added). 194. See sources cited supra note 193. 195. See, e.g., Hershovitz, Corrective Justice, supra note 9, at 116-17 (describing Aristotelian theories). 498 BUFFALO LAW REVIEW [Vol. 62 We are very close to returning to tort law. But let us take stock by articulating some principles that capture the making-amends conception of corrective justice. Consider a first approximation, called the Making Amends (First Pass) or the First Pass principle: Making Amends (First Pass): Individuals who have relationally wronged others (victims) have a duty to make amends to those victims. This principle captures the observations made so far about making amends. Making amends to person X is something that one must do if one has wronged X. The notion of wronging others, however, must be viewed both expansively and restrictively. Understanding the notion of wronging others expansively means not only that X wrongs Y in run-of-the-mill cases in which X’s direct and wrongful conduct injures Y, but also in cases where we can reasonably impute to X responsibility for wrongs that befall Y. By emphasizing relational wrongs, the principle should be understood to restrict the class of wrongdoings; it is not enough for a wrongdoing to exist “in the air” so to speak. The wrong must be a wrong to another person. We might make these points more explicit by offering the following revised principle, sacrificing concision for precision: Making Amends (Second Pass): Individuals who have relationally wronged others (victims), or are otherwise responsible for the wrongs that befall victims, have a duty to make amends to those victims. The new, italicized clause makes explicit the point just mentioned. Either we read X wronging Y broadly to include X being responsible for (in some unspecified sense) Y’s injuries, or if that seems to stretch too far the notion of one person wronging another, then we offer instead the Second Pass principle. The wrongs in any event must still be relational wrongs that render some individuals victims. Given that making amends just is performing a reasonable and adequate conciliatory gesture under appropriate circumstances, we might make the principle even more explicit: Making Amends (Third Pass): Individuals who have wronged others (victims), or are otherwise responsible for the 2014] MAKING AMENDS 499 wrongs that befall victims, have a duty to perform a reasonable and adequate conciliatory gesture to those victims. The duty to make amends, on this explication, has been satisfied once the responsible party performs a reasonable and adequate conciliatory gesture to the victim or victims. This does not require, as already noted, any full reconciliation. Full “reconciliation” between victim and wrongdoer—whatever that may entail—is not a prerequisite for making amends. Nor does it, as already discussed, require any particular feelings of remorse or guilt on behalf of the wrongdoer. The gesture must, however, be reasonably recognizable as expressing regret that the wrong occurred. In turn, this requires that the gesture be adequate or proportional in relation to the gravity of the wrongdoing that has occurred. So far we have roughly sketched an account of the duty to make amends, the circumstances under which it is triggered, and what making amends actually involves (a reasonable and adequate conciliatory gesture to the victims of the wrongs by those who own the wrong). And we have tried to explicate these ideas. The resulting principle of making amends—the Third Pass—is less concise but somewhat more precise than the First Pass principle. But the Third Pass still omits an important dimension of making amends, which is that there are limits on the duty to make amends. 3. Limits on Making Amends. The duty to make amends is a duty. And like most moral duties there are limits that apply. The moral duty to make amends does not apply, in other words, in any and all circumstances. To see why, notice that it often makes very little moral sense for someone who is responsible for another’s wrong to try to make amends. Sometimes this is a consequence of what we observed in the preceding paragraph: making amends requires the responsible party to have some kind of interaction with the person wronged, in the form of a conciliatory gesture. And depending on the nature of the wrong, and the burdens on the victim, an attempt by the wrongdoer to make amends 500 BUFFALO LAW REVIEW [Vol. 62 might simply add insult to injury.196 As Linda Radzik correctly notes, encouraging a child molester to try to patch things up with his victims is ill-advised and morally dubious—especially if the molester’s idea of making amends includes private, face-to-face interactions.197 The victim may want no further interaction with his injurer whatsoever. And this observation is not a special or extreme case. Some people may simply wish to move on with their lives and do not wish to revisit a painful past. And the process of making amends can be quite taxing on the victim. To avoid adding insult to injury, or if not insult then unwanted burdens, ideally victims should have some control over the amends-making process regarding whether, when, and how the process of making amends should go forward. With this in mind, let us revise the making amends principle: Making Amends (Fourth Pass): Individuals who have wronged others (victims), or are otherwise responsible for wrongs that befall victims, have a duty to perform a reasonable and adequate conciliatory gesture to those victims, only if those victims want the wrongdoer (or responsible party) to make amends. The “only if” clause here tries to capture the idea that it’s the victim’s prerogative to determine whether amends- making proceeds. The injurer’s duty to make amends to the victim is contingent on the victim’s wanting the wrongdoer to make amends. 196. I am indebted to Linda Radzik’s work for emphasizing this point. See Radzik, supra note 188, at 146; see also RADZIK, supra note 184, at 84. Radzik does not appear to suggest, however, that the duty to make amends—or “atone” in her words—can be turned off by the interests of the victim. She instead suggests that, when making amends is unwelcome by the victim, the wrongdoer should redirect that energy towards reconciling with the community at large. See RADZIK, supra note 184, at 84 (claiming that, even in cases where the wrongdoer should not make personal gestures to the victim, “[t]here is still important work for atonement to do . . . to achieve reconciliation with the broader community”). This seems a good idea, morally, but does not amount to making amends with the victim, which is the conception of amends-making that I focus on, and which is the conception of the amends-making process relevant to tort law. 197. Id. 2014] MAKING AMENDS 501 4. Obstacles to Making Amends. We noticed that one’s duty to make amends to a victim is contingent on the victim’s desires and that this places the wrongdoer in a tricky position if he genuinely wishes to make amends. Although figuring out what the victim wants is often easy to work out, sometimes it is not. To figure out what the victim wants, maybe the wrongdoer should simply ask. Many times this makes sense. But even asking might be an unwelcome gesture. Recall that the victim of molestation may want no interaction with the wrongdoer, and even asking may contravene the victim’s wishes. But this is just one possible obstacle in the amends- making process, and perhaps a small one. The most obvious impediment is disagreement. The injurer might disagree with the victim as to whether he is responsible for a wrongdoing. And even if the injurer concedes wrongdoing, she might disagree with the victim over what conciliatory gesture will suffice. The victim might want something other than what the injurer is willing to provide. Other obstacles abound. There are epistemic problems. The victim might not know who the injurer is. This is often the case during hit-and-runs. Likewise, the injurer might not know who the victim is. A factory that leaks toxic chemicals may not find out for many years that a cluster of birth defects is attributable to that spill, and on the flipside, those who suffer from the defects may not have a clue what caused them. Or the injurer might simply not know he has committed a wrong, as is the case with an innocent trespass over land that the trespasser mistakenly thought was public. How do we overcome these and other obstacles and difficulties in the amends-making process? No more amendments to the moral amends-making principle will be offered. Perhaps further refinement is possible, but these problems are likely to persist despite them. These are practical and epistemic difficulties that are not resolvable by specification of a moral principle. They are problems that arise in relation to efforts to enforce or realize that moral principle by either the injurer or the victim. To illustrate, suppose we have a perfect specification of the moral principle of making amends. Once we are told that the principle has an “escape” clause—that our duties to make 502 BUFFALO LAW REVIEW [Vol. 62 amends are contingent on whether others want us to make amends—wrongdoers may shy away from making amends by convincing themselves that everyone will be better off if everyone simply avoids the amends-making process. “If the victims really thought about it,” wrongdoers tell themselves, “they would realize that dredging up old wrongs does nobody any good.” And this thought is not entirely without reason. Economists have a label for this idea—a “sunk cost”—and economically rational agents never take sunk costs into consideration.198 Sometimes the best response to a wrong might be for everyone to just move on. This shows that, even if we manage to arrive at a perfect formulation of the duty to make amends, practical problems of application of that principle still arise. The fact that the moral process of making amends faces so many obstacles may not be reassuring. But these difficulties are important for understanding the relationship that tort law bears to making amends. This sketch of the informal, moral process of making amends leaves many questions unanswered. Are sincere apologies by wrongdoers vital? Is making amends tantamount to a kind of atonement? Although the author is inclined to answer ‘no’ to these questions, no arguments on these points will be offered here. It should be noted that Linda Radzik is one of the few to face these issues head on in her work.199 My own analysis of making amends does not appear to conflict with the broad contours of her view. By the same token, we should not endorse everything Radzik claims about the morality of making amends either. Radzik presupposes far more than we should be prepared to accept. For one thing, her views are shaped by a particular expressive theory of the nature of moral wrongdoing, a theory that arguably overgeneralizes based on cases of intentional wrongdoings and that will therefore have trouble capturing cases of negligence that are the bread and butter of tort 198. But see R. Preston McAffee et al., Do Sunk Costs Matter?, 48 ECON. INQUIRY 323-36 (2010) (describing sunk costs as costs that cannot be recovered, describing the conventional economic perspective that holds that rational actors ignore sunk costs in making decisions, and arguing within an economic framework that reflecting on sunk costs may be rational under certain constraints). 199. See RADZIK, supra note 184; see also Radzik, supra note 188, at 146. 2014] MAKING AMENDS 503 lawsuits.200 Making amends, however, is broader than that and can also capture our morally appropriate responses to accidents.201 Also worrisome is Radzik’s claim that the goal of making amends is reconciliation between wrongdoers and their victims, which implies that making amends fails whenever it falls short of actual reconciliation.202 Although we agree that making amends involves a conciliatory gesture, we were also careful to distance this concept from the idea of reconciliation, especially given that strangers who may have no interest in reconciling can still make amends. A full defense of these views will not be offered here. But hopefully the preliminary sketch outlined above will play a useful role in helping to explain tort law, a project that follows below. B. Making Amends Through Tort Law The previous subsection analyzed the duty to make amends in terms of what triggers the duty, some of its limits, and certain practical obstacles to making amends. The present proposal in this subsection is that tort law aims to facilitate the amends-making process by mitigating these obstacles, while protecting victims’ morally important interests in controlling certain aspects of the amends-making process. The making-amends conception of tort law—as opposed to those provided by pragmatic conceptualists like Coleman and Zipursky203—is thus an instrumentalist explanation. As such, any mismatch between the structure of the moral principle of making amends and normative structure of tort law is not necessarily a detriment to the explanation on offer. The goal of the following explanation is to show how any lack of “fit” between moral principles of 200. RADZIK, supra note 184, at 76-80. 201. Section B below will take on the question of the nature of wrongs presupposed in tort law in greater detail. 202. See generally RADZIK, supra note 184. Wrongdoers, it seems, can successfully make amends without any reconciliation with the victim by performing a reasonable and adequate conciliatory gesture. But this claim will not be defended here. 203. COLEMAN, PRACTICE OF PRINCIPLE, supra note 1 at 25-63; Zipursky, Civil Recourse, supra note 2, at 703-09; Benjamin C. Zipursky, Pragmatic Conceptualism, 6 LEGAL THEORY 457, 457-85 (Jules L. Coleman et al. eds., 2000) [hereinafter Zipursky, Pragmatic Conceptualism]. 504 BUFFALO LAW REVIEW [Vol. 62 making amends and tort law’s basic normative structure can be explained in terms of the law’s attempt to overcome certain practical obstacles to the amends-making process. Some mismatch is to be expected. Perhaps the best way to see how tort law mitigates obstacles to achieving corrective justice— or making amends—is by considering the obstacles that prevent people from making amends and how the institution of tort law is designed to correct for those failures. 1. The Problem of Disagreement. As already noted, probably the most obvious obstacle to making amends is disagreement. Sometimes the wrongdoer denies being responsible for any wrong. Other times he denies committing a wrong with respect to the putative victim. And even if there is no disagreement about whether an injurious wrong has occurred, or whether the putative injurer has the right relationship of ownership toward the wrong, there still may be disagreement about what kind of conciliatory gesture is adequate. Tort law addresses all of these issues. It defines the conduct and injuries that qualify as actionable wrongs.204 True, the law does not make actionable all injurious wrongdoings. A threshold of importance must be met.205 The law does not generally concern itself, for example, with de minimis wrongs.206 Furthermore, because tort law aims to facilitate the amends-making process, and because making amends is something that a wrongdoer does with respect to the person he has wronged, tort law also has features that ensure that the putative victim is in fact a genuine victim of the wrongdoer’s wrongful conduct. This point is an important one that we will return to when we discuss the substantive standing requirement. As we will see, the point of these requirements is at least in part to ensure that the litigants 204. John Gardner, What is Tort Law For? Part 1. The Place of Corrective Justice, 30 LAW & PHIL. 1, 50 (2011) [hereinafter Gardner, What is Tort Law For?] (“Private law can (and may be needed to) make such obligations more determinate than they would be in their raw moral form, but it is not needed to bring them into existence in the first place.”). 205. See, e.g., Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997). 206. Id. (“The legal maxim ‘de minimis non curat lex’ (sometimes rendered, ‘the law does not concern itself with trifles’) insulates from liability those who cause insignificant violations of the rights of others.”). 2014] MAKING AMENDS 505 stand in the proper amends-making relationship that tort law aims to facilitate. Why this is important will also be discussed in greater detail below. Another source of disagreement relates to conciliatory gestures. Although a reasonable and adequate conciliatory gesture is required, what counts as reasonable and adequate might be a source of disagreement. Tort law helps smooth over these difficulties as well by providing a set of off-the- rack remedies, the most important being the default rule of compensatory damages.207 Different jurisdictions differ on the details, but the civil recourse theorists are correct to point out that the kinds of remedies involve at least compensatory and punitive damages, as well as many forms of injunctive relief.208 In summary, tort law settles disagreements about what conduct constitutes a wrong in an important class of cases and disagreements about who qualifies as a genuine victim of those wrongdoings. Tort law accomplishes this by providing off-the-rack categories of relational wrongs to potential plaintiffs and a menu of potential remedies. 2. Victim Control. There is another important moral problem on the horizon, relating to victims’ morally important interests in exerting some control over the amends-making process—i.e., whether the wrongdoer should make amends and how that process takes place. Consider Carol and Will. Carol has wronged Will, but Will simply does not want to have any further contact with Carol. Will, in short, does not want Carol to make amends. On the amends- making view, this means Carol has no duty to make amends with Will. But suppose that Carol, for whatever reason, still wants to make some conciliatory gesture to Will. Maybe she feels guilty or believes (incorrectly) that she still has to make it up to Will in some way. In any event, by unilaterally deciding to approach Will, Carol is making an unwelcome gesture and depriving Will of some degree of control over the amends-making process. This is so regardless of whether Carol’s gesture ultimately succeeds in making things better, 207. See supra Part I (discussing views of civil recourse theorists Goldberg and Zipursky). 208. See discussion supra Part I. 506 BUFFALO LAW REVIEW [Vol. 62 all things considered. This situation reflects the problem of protecting the victim’s morally important interest in exerting some control over the amends-making process. In particular, the case of Carol and Will concerns primarily the victim’s morally important interest in controlling whether the amends-making process takes place at all. The case is also an example of bilateral struggle for control over the amends-making process between injurer and victim. Carol, in a sense, wrests Will’s right to determine whether or how the amends-making process takes place. But usurpations of control can occur in multilateral situations among the putative “victims” of wrongs. The threat in such cases is not that the responsible party will set the terms of engagement, thereby disregarding the victim’s interests, but rather that other self-proclaimed “victims” will behave in ways that effectively undermine those interests. To see how this can happen, consider a wrongdoing affecting three people: Allison, Bob, and Carrie. Allison and Bob are married. Allison discovers, however, that Bob is having an affair. Allison is distraught. Carrie cannot stand to see her friend Allison so upset, so she takes it upon herself to confront Bob and demands that Bob pack up his belongings and move out of Allison’s house. Carrie—as Allison’s friend— is in a sense a foreseeable “victim” of Bob’s infidelity since she must suffer along with Allison and help her get through this trying time. But there is a sense in which Bob can rightly claim that this is none of Carrie’s business, that she lacks moral standing to confront him, and that she also lacks the standing to make the demand that she is making. Bob did not cheat on her, after all. The wrongdoing is primarily a matter between Allison and Bob—not Carrie. We may not sympathize with Bob’s claims. But let us not forget that Allison also has reason to be perturbed by Carrie’s conduct, no matter how well intentioned it was. By taking it upon herself to demand that Bob move out, Carrie has overstepped her bounds and usurped Allison’s morally important interests in controlling how the amends-making process take place (if at all). By insisting that Bob move out, Carrie has usurped Allison’s judgment as to whether and how the amends-making process plays out with Bob. What if Allison wants to try to make the marriage work despite Bob’s 2014] MAKING AMENDS 507 affair? Carrie has usurped, in effect, Allison’s judgment on the matter. Now suppose that Allison agrees with Carrie that Bob should move out. Surely, Allison should be consulted on how to execute Bob’s moving out and the manner by which it proceeds. So Carrie has interfered with not only Allison’s morally important interests in controlling whether the amends-making process takes place; by demanding that Bob move out, she has also encroached on her important interests in controlling how this takes place, if at all. Tort law slices through these Gordian knots. Consider first the question of how to reinforce the victim’s morally important interests in control. Tort law protects these interests by allocating to victims the right to file lawsuits against wrongdoers. By allocating the right to demand wrongdoers to make amends, victims are given control over the initiation of the amends-making process, the timing of that initiation (within defined limits), the claims asserted against the wrongdoer, as well as defining the remedies sought against the wrongdoer. To be sure, this control is far from absolute; the remedies and claims brought in courts of law are much more limited than those available in our moral lives. Nor does tort law do anything to prevent the Carols of the world from unilaterally trying to make amends informally, against the wishes of the victim; the wrongdoers have liberty interests in interacting with others that the law may not wish to obstruct unnecessarily. But tort law does not afford wrongdoers an avenue for coming forward to make amends. Victims, not wrongdoers, have the primary power to initiate—and hence control—the amends-making process in tort law. Allocating the right to initiate litigation to victims vindicates this interest in initiating the amends-making process, as well as in controlling both how the amends- making process takes place and the nature of the conciliatory gesture demanded. 3. Epistemic Problems. Allocating the right to initiate litigation to victims solves epistemic problems as well. These problems are closely tied together with some of the problems previously considered, but it is helpful to re-state them in epistemic terms. Allocating the right to victims lets the wrongdoer know, once victims come forward: (1) that there is someone who feels very seriously wronged (one does not initiate litigation, one hopes, without actual serious wrongs); 508 BUFFALO LAW REVIEW [Vol. 62 (2) what the plaintiff wants; (3) how to make amends (the amount demanded, or other remedies); and (4) that the victim does want the injurer to make amends. This explains why the duty to make amends is triggered upon demand rather than at the moment of wrongdoing. The moral duty is triggered upon the moment of wrongdoing, assuming the victim wants amends to be made. But this feature of the moral principle—the fact that the duty is contingent on what the victim wants—is fraught with epistemic uncertainty. Tort law reduces this uncertainty by stipulating that the amends-making process does not commence until the victim explicitly says so in the form of a demand. And the reason why victims, rather than wrongdoers, are allocated the responsibility to initiate amends-making processes is a moral one: victims have morally important interests in controlling aspects of the amends-making process, especially with respect to whether there will be any such process at all. Tort law eliminates a lot of the guesswork created by informal amends-making procedures, as well as the moral principle of making amends itself. So much for the rough sketch of how making amends relates to tort law. Tort law aims to mitigate the obstacles facing the informal process of making amends and does so by formalizing and standardizing the process in a way that protects victims’ morally important interests in controlling aspects of that process. Saying that tort law aims to mitigate obstacles, however, does not mean it always succeeds. This is obvious. Making available a formal mechanism for making amends may induce victims to rush to the courthouse in an effort to extract payments rather than exhaust their informal amends- making options—options that may sometimes do a better job satisfying everyone involved.209 But, as we will see in Part VI, the amends-making account still promises to make sense of many of the institutional features of tort law that traditional corrective justice accounts have difficulty explaining. And— unlike Hershovitz’s account—the amends-making account takes as its touchstone principle an attractive principle of 209. See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) (describing informal and relatively low-cost norms of dispute resolution among ranchers in California). 2014] MAKING AMENDS 509 making amends, one that remains attractive regardless of whether we label it a theory of “corrective justice.” 4. A Legal Principle of Making Amends. We have seen some problems surrounding the moral process of making amends, problems that we might usefully label the circumstances of making amends.210 Tort law aims to overcome these circumstances and facilitate those who want to pursue claims through a formalized version of that process. In light of these foregoing observations, we are in a position to articulate a principle of making amends that resembles the basic structure of tort law. Consider the following principle of tort law: Making Amends (Legal Version). Individuals who have wronged others in ways recognized by law, or are otherwise responsible for wrongs recognized by law that befall victims, have a legal duty to perform a reasonable conciliatory gesture as recognized by law to those victims, only when the victim makes a legal demand of the wrongdoer (or responsible party) to make amends. The important part is the italicized addition “only” clause at the end, which replaces the desire-based exception to the general rule that wrongdoers have a moral duty to make amends. The biggest difference between the moral version of the principle and the legal version is that it specifies exactly when the legal duty to make amends becomes operative: upon demand by the victim. 210. Hershovitz mentions the “circumstances of corrective justice”—but we mean different things. Hershovitz, Corrective Justice, supra note 9, at 117. He is concerned, primarily, with the problem that corrective justice faces in all cases: that a wrong cannot be undone. See id. We are concerned primarily, and instead, with the many obstacles that often conspire to make it practically difficult for parties to make amends with each other. Tort law aims, according to the making- amends conception, to correct for these obstacles and smooth the path towards making amends. For more on the origins and similar uses of this “circumstances of” locution, see SHAPIRO, supra note 179, at 170, 420 n.11 (attributing the phrase “circumstances of justice” to David Hume and John Rawls, and adopting his own “circumstances of legality” that “obtain whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary”). 510 BUFFALO LAW REVIEW [Vol. 62 V. OBJECTIONS, OLD AND NEW Now that the broad outlines of the making-amends approach are in place, let us consider how the approach help answers the various objections already on the table. Then we’ll consider some new objections. A. The Remedies Objection The duty to make amends answers the remedies objection. Rather than a duty of repair, there is a duty to make amends. Notice that this is the feature of the principle that allows us to respond to the remedies objection. As noted in Part IV, the notion of making amends, like getting even, is more open-ended than the notion of repair, which seems distinctively interested in setting things back the way they were before the injury occurred, or at least as close to that position as practicably possible.211 Making amends does not concern itself, primarily, with repairing losses. Making amends is primarily about the person responsible for the wrong making a reasonable and adequate conciliatory gesture to victims. The way that this is accomplished is not necessarily through offers to pay reparations—though in many cases, this is the best way of expressing regret. Sometimes an apology and an offer to pay for the neighbor’s damaged yard will be enough.212 As a result, and as we observed in the prior subsection, the ways by which one can 211. To return to Tom and Jerry, when Tom negligently breaks Jerry’s leg, it makes sense to say that Tom should make amends to Jerry in consideration of the loss. See Hershovitz, Corrective Justice, supra note 9, at 110-19. But it does not make sense to say that a repayment of monetary debt owed between Tom and Jerry involves a case of making amends. The existence of a debt does not involve a wrong (unless the debt is overdue); but the negligently caused broken leg does plausibly involve a wrongdoing. Hershovitz wanted to iron over the obvious differences between Tom and Jerry in the debt case and in the broken leg case, respectively; making amends highlights the differences. See id. 212. The neighbor may accept my apology, appreciate and acknowledge the offer, yet decline it. Amends have been made. But on the Aristotelian account, this is a failure of corrective justice because I have not repaired the damage done; the neighbor has, at best, simply waived his right that I pay full reparations. This does not change the fact, however, that Aristotelian corrective justice has not been done on its own terms. See, e.g., Hershovitz, Corrective Justice, supra note 9, at 117 (discussing Aristotelian theory). 2014] MAKING AMENDS 511 make amends includes, but are not limited to reparations. The fact that other forms of relief—like nominal, punitive, and injunctive relief—are available in tort law should not be surprising from the perspective of making amends. B. The Substantive Standing Objection Recall the substantive standing objection.213 Goldberg and Zipursky point out that causes of action arising in tort all contain a substantive standing requirement that in effect limits the class of plaintiffs to only those who can show that they stand in a sufficiently close relationship to the defendants’ wrongdoing at issue.214 They must show that defendants accountable for that wrongdoing have wronged them, not simply that they have suffered an injury as a result of wrongful conduct.215 The distinction is a subtle one that is recognized in law but not easily captured in terms of plausible moral principles. This creates a dilemma. If a proposed principle of corrective justice contains a plausible principle of moral responsibility, then the principle probably fails to account for tort law’s substantive standing requirements. But if the principle can account for them, then the principle probably does not count as a plausible notion of responsibility and simply parrots the law’s requirements without providing independent explanatory power.216 The amends-making account helps to respond to this objection. On the amends-making account, many of the institutional features of torts can be thought of as solving epistemic, practical, and moral problems that commonly arise trying to make amends informally or as a result of trying to enforce moral duties to make amends.217 In a (cumbersome) slogan, the institution of tort law aims to facilitate the amends-making process while protecting morally important interests of the victim. But notice that doing so will inevitably require having some way of identifying a victim whose interests should be protected by 213. See supra Part I.B. 214. See supra Part I.B. 215. See supra Part I.B. 216. See supra Part I.B. 217. See supra Part IV. 512 BUFFALO LAW REVIEW [Vol. 62 that institution. In light of this inevitability, so-called “substantive standing” rules can be viewed as rules for identifying genuine victims, with morally important interests in initiating and controlling the amends-making process, from those who have merely been collaterally injured by the defendant’s wrongdoing. This maneuver echoes Hershovitz’s to the extent that it views substantive standing requirements as restrictions on who may legitimately claim to have been wronged by the defendant.218 But the present explanation goes further. Apart from being more explicit about being an instrumentalist or functionalist response, we now see precisely why the response—if understood correctly—avoids the dilemma. We should concede that moral liability for wrongs often does not track legal liability for torts. That is, the response concedes the point made by Goldberg and Zipursky: that tort law often holds defendants legally liable even though they should not be morally liable, and sometimes defendants should be held morally liable even if they legally should not.219 And they are also correct in explaining that this mismatch is very often attributable to substantive standing requirements.220 But this concession is far from fatal. Goldberg and Zipursky are mistaken to suggest that there is simply no moral analogue to the substantive standing requirement.221 Indeed, not only is there one (see examples infra Part V.D.3), the amends-making account explains why the mismatch between moral and legal liability nevertheless persists: morally speaking, drawing a line between primary victims— with morally important interests in controlling the amends- making process—from those with much weaker claims, can be quite difficult and fraught with disagreement and controversy. Given this potential for disagreement, tort law slices through the Gordian knot by introducing standards for discerning genuine victims, in the form of substantive standing requirements. There is still a mismatch, however, given that law provides blunt instruments; the mismatch is 218. See supra Part III.B. 219. See supra Part I.B. 220. See supra Part I.B. 221. See supra Part I.B. 2014] MAKING AMENDS 513 predictable. But corrective justice still does justificatory work indirectly: it explains why the institutional features of tort law are what they are and tort law’s mission statement, but it does not explain tort law by providing a perfect normative map by which we can navigate the main features of tort law. Indeed, if we treat moral principles of corrective justice as a map in this way, we wind up pretty disoriented. Civil recourse theorists are right about this. But their dilemma, it turns out, is a false one, because we can cite the practical problems that arise in the context of applying moral principles to explain the role of substantive standing requirements, while explaining why moral and legal liability will not be co-extensive: substantive standing requirements are very, very blunt instruments used to separate genuine victims of wrongdoing from those who have merely suffered unwelcome fallout.222 C. The No-Legal-Duty Objection So far we have seen that the making-amends account provides the resources to respond to the remedies and substantive standing objections. The third objection also poses no difficulty. Indeed, the answer has already been telegraphed. Recall Goldberg’s statement of the objection, which is basically that moral principles of corrective justice fail to cut tort law at the joints: Notice, however, that the conversion of the moral duty of repair into a legal duty does not happen through the tort system unless and until the victim decides to press a claim against the defendant. In other words, if the defendant is going to be made to heed his duty of repair, it will only be by virtue of the law’s having empowered the victim to demand of the defendant that he make amends for the wrong done. . . . Corrective justice theory thus fails to capture accurately the terms on which tort links a victim to a person who has victimized her.223 We are now in a position to see what is correct about this statement and what is not. To be sure, principles of corrective justice that impose automatic duties of repair on wrongdoers 222. See supra Part IV.B. 223. Goldberg, Wrongs Without Recourse, supra note 6, at 13 (emphasis added). 514 BUFFALO LAW REVIEW [Vol. 62 the moment they wrong others fail to cut tort law at the joints. These duties, after all, are not sufficiently sensitive to the victim’s interests. But the Fourth Pass principle does not impose this kind of duty.224 The principle instead specifies that the victim must want the wrongdoer to make amends to trigger the duty to do so.225 But this means that the moral duty, even if automatic, depends on the victim. Victims who do not want wrongdoers to make amends deactivate wrongdoers’ duties to do so. The possibility that duties of repair (or, on the amends-making view, duties to make amends) pop in and out of existence mitigates the mismatch between the law’s structure and the structure of the relevant moral principle. The moral duty to make amends, just like the legal duty, is contingent on the victim in some way. This does not mean, however, that the amends-making conception is out of the woods yet. The moral duty to make amends, after all, is contingent on a mental state of a victim— i.e., victims must want wrongdoers to make amends to activate that duty. What if the victim’s desires change minute to minute? Does that suggest that the wrongdoer’s duty flips on and off like a light switch? Seemingly so. Meanwhile, the legal duty to make amends is triggered by the plaintiff’s conduct. What conduct suffices may vary by jurisdiction.226 But this thought/conduct disparity between the moral and legal principles prima facie shows that the no- legal-duty objection still has some bite—at least on its face. After all, the triggering conditions for those duties do not perfectly align. If they did, then the legal duty to make amends would be triggered the moment that the victim 224. See Part IV.A.3. 225. See Part IV.A.3. 226. Sometimes the filing of the lawsuit is required; other times, the victim need only put the alleged wrongdoer on notice of the demand and when a precise damages calculation can be made. Compare N.J. CT. C.P.R. 4:42-11(b) (starting the clock for prejudgment interest in tort claims “from the date of the institution of the action or from a date 6 months after the date the cause of action arises”), with Levy-Zetner Co. v. S. Pac. Transp. Co., 142 Cal. Rptr. 1, 25 (Cal. Ct. App. 1977) (explaining that, for torts suits in California, “prejudgment interest runs from the date when the damages are of a nature to be certain or capable of being made certain by calculation and when the exact sum due to the plaintiff is made known to the defendant”). 2014] MAKING AMENDS 515 wanted the wrongdoer to make amends, and this is clearly not how it works in tort law. But once we understand the nature of the making- amends explanation, the worry about mismatch goes away. Recall that our understanding of tort law is a functionalist one. Tort law aims to facilitate the amends-making process by removing common obstacles to that process, as it occurs informally. For this kind of explanation to succeed, alleged mismatches between the moral and legal processes must be plausibly explained by showing how those “mismatches” help remove those obstacles. And this is exactly the kind of explanation provided. Tort law allocates the right to initiate litigation—the right to initiate the legal amends-making process—to victims. And tort law does this to solve epistemic problems (e.g., the victim’s identity, the nature of the alleged wrongdoing, and what amends they want made), and the problem perhaps most overlooked: ensuring vindication of the morally important interest that victims have in controlling whether and how the amends-making process takes place. So tort law is explained in terms of corrective justice. The explanation, however, is a functionalist one: that tort law aims to facilitate the amends-making process involving a certain class of serious wrongs.227 Mismatches between the moral structure of making amends and the legal structure of tort practice are not necessarily inadequacies of the explanation or data points that the explanation failed to capture. Rather, these mismatches must be explained in light of the overall purpose of having an institution of tort law. The point of the institution is to overcome many of the difficulties arising from the informal, vague, and ambiguous moral structure of the making amends principle and the process it 227. See, e.g., Gardner, What is Tort Law For?, supra note 204, at 19. Gardner states: A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm, unless conformity with the legal norm would help to secure conformity with the moral norm of which the legal norm is supposed to be partly constitutive. Id. 516 BUFFALO LAW REVIEW [Vol. 62 gives rise to. These mismatches, in many cases, can be explained in terms trying to overcome these difficulties.228 We should not expect, therefore, that tort law perfectly align with all the amorphous contours of the informal, moral process of making amends. Indeed, if the morality of making amends mapped so cleanly on to the law, we might wonder why we even need the institution of law to get in the business of making amends at all.229 D. Other Objections The making-amends conception of corrective justice faces challenging questions about its adequacy as an explanation and justification for tort law, as well as about its status as a genuine moral principle. These questions extend beyond the challenges to corrective justice theory posed by Goldberg,230 228. The methodology presupposed here—that legal institutions arise to address problems that cannot be solved by informal moral norms or customs—is far from idiosyncratic. Perhaps the best known example of this methodology comes to us from H.L.A. Hart’s suggestion that law in general aims to overcome the various inefficiencies and uncertainties that would be faced by a “pre-legal” society governed exclusively by informal customs. H.L.A. HART, THE CONCEPT OF LAW 91 (1961). This tradition is carried on today in, among other places, SHAPIRO, supra note 179, at 170-71 (positing that legal institutions in general aim to correct for deficiencies in nonlegal forms of social planning). John Gardner discusses a similar methodological perspective in connection with tort law, specifically, en route to defending instrumentalism in tort theory against non-instrumentalists Jules Coleman and Ernest Weinrib. See Gardner, What is Tort Law For?, supra note 204, at 19 (“[T]o fulfill its morally constitutive role, tort law’s norm of corrective justice must be evaluated as an instrument. It must be evaluated as an instrument of improved conformity with the very moral norm [of corrective justice] that it helps to constitute.”) (first emphasis in original; second emphasis added). 229. Here is another way to put the point. The explanation offered here does not expect a one-to-one match between the basic structures. Indeed, the reason why we even need something like the institution of tort law is because of the various latent defects arising from reliance on first-order moral norms that are vague, ambiguous, and in any event difficult to apply. Put differently, the reasons we have tort law is to correct for epistemic, practical, and moral problems that arise from the amends-making process. Tort law corrects for the defects of corrective justice. So it would be surprising if there were a perfect match between the normative structure of the moral norm and the legal one, given that the structure of the moral norm is part of the problem. 230. See supra Part I. 2014] MAKING AMENDS 517 Hershovitz,231 and Zipursky.232 Although not every objection can be considered, let us address some salient ones. 1. Can We Make Amends Through Tort Law? Here is one objection: in an ideal case, a wrongdoer would come forward and try to make amends to the victim for the wrongdoing and would do so by offering a reasonable and adequate conciliatory gesture, which the victim would accept. But lawsuits seem far from the ideal. After all, there is a sense of “conciliatory” behavior that may require the wrongdoer to actually regret his wrongdoing, and which suggests that the wrongdoer must personally acknowledge his conduct as wrong. But if tort law aims to facilitate the amends-making process, and if amends-making implies conciliatory gestures, then tort law must be doing a horrible job since tort cases do not police these subjective feelings of contrition. Nor do tort suits require explicit acknowledgment of wrongdoing by the defendant. In short, tort law does not look like it really is geared towards making amends after all. This objection rests on a misunderstanding. As explained earlier, conciliatory gestures do not require the wrongdoer to maintain any particular attitudes, even though ideally the wrongdoer would regret wrongdoing.233 In the relevant sense, we should understand conciliatory gestures as objectively signaling regret and acknowledgement of wrongdoing. It is perfectly possible within the framework outlined above that someone can be found liable and forced to make a conciliatory gesture to the victim, even though the wrongdoer does so grudgingly. Recall Hatfield, who offers up, say, fresh produce because he must, even though he does so grudgingly.234 Or consider bickering siblings who are forced by their parents to shake hands and hug to signify the end of the dispute, even though neither sibling particularly wants to do so. Conciliatory gestures needed to satisfy the duty to make amends are objective, not subjective in nature. If this analysis is correct, then the upshot for tort law is clear: tort law can force parties to make amends by forcing 231. See Hershovitz, Corrective Justice, supra note 9, at 110-17. 232. See supra Part I. 233. See Part IV.A.2. 234. See Part IV.A.2. 518 BUFFALO LAW REVIEW [Vol. 62 wrongdoers to offer up reasonable and adequate conciliatory gestures to victims. The fact that the litigants may loathe each other during and after the litigation and the fact that the wrongdoer never feels regret, or even acknowledges having done anything wrong, does not necessarily mean that the wrongdoer has failed to satisfy his obligation to make amends. And it should not be surprising that people can satisfy their obligations without necessarily accepting the legitimacy of those obligations, just as someone who rejects the legitimacy of federal income taxes may wind up satisfying his legitimate tax obligations by paying them. 2. The Distinctiveness Objection. Another challenge goes as follows. In seeking to capture a broader array of remedies, which the making-amends account surely does, the amends- making conception arguably loses sight of what is (allegedly) important and distinctive about tort law, which is its apparent emphasis on repair.235 This duty gives guidance as to the forms of redress appropriate and the amount of compensation that is appropriate.236 But arguably the making-amends conception fails to provide comparable guidance.237 On the making-amends conception, the fact that tort law awards compensatory damages as of right seems contingent or accidental. To the contrary, a traditionalist might insist, the fact that reparations are the default form of redress reflects something normatively important that is far from simply an accident of history. Only Aristotelian views come close to explaining why reparations make any normative sense.238 This objection has some bite. To some extent, the greater indeterminacy in the making-amends conception with respect to forms of redress is simply the theoretical cost of being able to account for a greater variety of remedies. And 235. See Gardner, Torts and Other Wrongs, supra note 8, at 59; Stapleton, supra note 178, at 1559-60; Part IV.A.2. 236. See Gardner, Torts and Other Wrongs, supra note 8, at 59. 237. Jules Coleman & Gabriel Mendlow, Theories of Tort Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/tort-theories/ (claiming that civil recourse theory gives “little guidance as to what sort of redress is appropriate”). 238. See supra Part I.C. 2014] MAKING AMENDS 519 this is a cost that the making-amends conception—along with the getting-even conception—is willing to incur. To the extent that the making-amends view feels pressured to explain why the default rule of redress is the default rule of compensation, the view seems destined to either go on offense—like Hershovitz does, who claims that notion of “repair” is itself misleading239—or emphasize that repair- based explanations incur their own costs, such as the difficulty in explaining the variety of remedies and damages available beyond purely reparative ones. The whole exercise feels like trying to put queen-sized sheets on a king-sized mattress. But perhaps the fact that courts award compensatory relief by default does not, on reflection, represent any particularly deep moral truth. As noted earlier, very few, if any, gestures better signal regret than compensatory relief designed to undo damage to the extent possible.240 Again, if A accidentally pushes B to the floor, then the most obvious way to signal regret is by attempting to help B to his feet. So it is no surprise that tort law’s predominant method of redress takes the form of undoing harms done via monetary or injunctive relief. The mistake, however, is to see reparative relief as the sine qua non of corrective justice. We can scale up this point by imagining cultures where, say, apologizing is a response morally on par with providing adequate compensation.241 We must be careful not to mistake the culture-independent, abstract moral principle of corrective justice—which is fundamentally about making amends—with particular entrenched forms by which we make amends. Separating the two is not easy work; and, by 239. See supra Part III.A. 240. See supra Part IV.A.2 (explaining that conventional reparative relief might be viewed as simply the best way to signal regret, objectively speaking). 241. We might not even have to imagine this society. See Jon O. Haley, Comment: The Implications of Apology, 20 LAW & SOC’Y REV. 499, 500-01 (1986) (claiming that the refusal of one corporation to provide an apology to Japanese defendants “held up a settlement for months”). For more on the role of apologies and compensation in Japanese legal culture, see Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 LAW & SOC’Y REV. 461 (1986). 520 BUFFALO LAW REVIEW [Vol. 62 explicating the concept of making amends, we risk committing the same sin. But it is worth trying. Here is another way to reconcile Aristotelian conceptions of corrective justice with the idea of making amends. Perhaps, after all is said and done, traditional corrective justice theories have indeed articulated one genuine repair- based principle of justice. Suppose further that they succeed in showing that the core of tort law reflects this principle. It still does not follow that the Aristotelian conception exhausts the field of corrective justice, or that making amends has no work left to do in illuminating private legal practices. Aristotelians might simply be mistaking a particular species with the broader genus. Corrective justice in this broader sense of making amends might be the goal of private litigation more generally. And if this is correct, then much of the problem might be a problem of labeling—one that is not particularly interesting. Making amends might be the fundamental category pertaining to the problem of what wrongdoers must do for their victims in the aftermath of their wrongdoings, while corrective justice specifies the default manner by which amends are made to victims. Let us not rule out the possibility of reconciliation between Aristotelians and those (like Hershovitz and the present author) seeking to expand the scope of remedies with which Aristotelians are preoccupied. 3. Does Making Amends Presuppose a Concept of Repair? Another objection is that making amends simply presupposes the concept of repair, since making amends typically suggests trying to repair a frayed relationship.242 If so, this objection would spell trouble because it (1) threatens to reintroduce the problematic concept of repair; (2) shows that making amends itself presupposes some version of the Aristotelian, repair- based view of corrective justice; and (3) shows that making amends might not be so well suited to illuminate tort practice after all, since tort suits are frequently populated by strangers who had no prior relationship before the suit. So if there is no prior relationship, what is there to “mend”? The short answer to this is that the amends-making account of making amends presupposes neither a pre- 242. See Radzik, supra note 188, at 146-47. 2014] MAKING AMENDS 521 existing relationship (prior to the wrong that unites the victim and wrongdoer) nor any robust concept of repair. On the amends-making account, making amends does not presuppose that a pre-existing relationship exists between wrongdoer and victim. To be sure, there is a sense in which we all bear a moral relationship with respect to one another, a relationship that we do not hold toward, say, crab grass. But if this abstract, moral sense of “relationship” is the relevant one, then we should be skeptical that this is the kind of relationship that ever needs repair. It is an unbreakable relationship between persons that makes us accountable to one another invariably. On the other hand, if a weaker sense of “relationship” is in play—such as the relationship between lovers that can be broken—then we should resist the claim that making amends necessarily is in the business of repairing these more fragile relationships. It is too easy to think of cases in which the victim, although wanting and demanding amends, wants nothing further to do with the wrongdoer besides those amends—and can hold this attitude without denying that the moral relationship that holds between persons can ever be frayed.243 4. The Arbitration Objection. The Arbitration Objection begins by observing that alternative dispute resolution (ADR), such as arbitration or mediation, might do a better job at getting parties to make amends than tort law.244 Three considerations might bolster this view: (1) making amends and ADR both allow for a broader range of remedies than tort law;245 (2) ADR is (arguably) more likely to result in a reasonable and conciliatory gesture than tort law; and (3) the substantive rules that govern ADR and the process of making amends are far more flexible than those found in substantive 243. There is clearly more to this objection—as well as more to say in response. Much of Linda Radzik’s recent book is devoted to defending a conception of making amends that sees the goal of the process as repairing relationships. See generally RADZIK, supra note 184. 244. See, e.g., Thomas O. Main, ADR: The New Equity, 74 U. CIN. L. REV. 329, 362 (2005). 245. See, e.g., id. (noting that remedies available in alternative dispute resolution (ADR) include not only “monetary and injunctive remedies” but can also “promote certain behavior, restructure relationships, and impose outcomes beyond the legal and practical reach of courts”). 522 BUFFALO LAW REVIEW [Vol. 62 tort law and civil procedure.246 Given these observations, a natural thought is that the amends-making conception of corrective justice helps make sense of ADR, but not tort law. None of these observations is worrisome. Recall that the making-amends approach seeks to explain tort law, but it does not seek to explain it by showing how the normative structure of corrective justice maps cleanly onto the normative structure of tort law. The explanation is functionalist in a way that explains why there will be some structural mismatches between the two normative domains. The approach predicts that legal norms aim to correct for certain shortcomings in the ordinary moral process of making amends. But to the extent that the ordinary moral process works for people or some other more formal process of private arbitration provides an adequate substitute, so much the better: tort law need not get involved. We can see how this observation helps answer the objection. Tort law does not aspire to be the only formal mechanism that facilitates the amends-making process; it is the formal mechanism of last resort. To the extent that individuals can make amends without arbitrators or mediators, they might avail themselves of a much broader range of potential remedies, as well as address a much wider range of wrongs. To the extent individuals cannot make amends on their own, other, formal and private grievance procedures might be available. The range of remediable wrongs and remedies narrows, however, once these individuals try to take their grievances to private arbitrators. And by the time the victim and wrongdoer reach the court 246. See id. at 366. Main notes the “substantive flexibility” of certain forms of ADR: In the more voluntary and less structured forms of ADR, such as mediation, where the ultimate authority belongs to the participants themselves, the parties (perhaps with the benefit of a third party facilitator) can fashion a unique solution that will work for them without being strictly governed by precedent. Thus, “mediators do not ‘judge’; they aid the parties in ending a dispute.” ADR is attractive to some, then, because of the system’s promise of “better” results that serve “the real needs of the participants or society.” These results may or may not “follow the law,” and it arguably does not matter because of the parties’ voluntary acquiescence to the resolution. Id. 2014] MAKING AMENDS 523 system, the range narrows even further. So the objection is in a sense correct: ADR does prima facie promise to achieve corrective justice—and maybe even better than tort law— given the broader range of remediable wrongs and remedies potentially available. But that does not mean that the making-amends view fails to explain tort law. It just shows that the nature of the explanation is an instrumentalist one. Tort law steps in as the institution of corrective justice of last resort, to correct for failures of the informal process of making amends, as well as formal (but nonlegal) institutions like private arbitration or mediation. Looking at tort law this way, moreover, has a considerable benefit in squaring corrective justice with another commonly observed fact about civil litigation: most cases settle, and moreover, public courts actively encourage settlement by litigants.247 This feature of tort litigation might be viewed as worrisome from the perspective of traditional conceptions of corrective justice, which hold that corrective justice is accomplished only upon awarding full reparative compensation by the wrongdoer to the victim.248 After all, widespread settlement raises the possibility that, at nearly any stage of litigation, a plaintiff may agree with a defendant’s offer to settle at values well below what they might be entitled to as a matter of compensatory relief. From the perspective of repair-based accounts of corrective justice, any time a plaintiff entitled to compensatory damages settles for something below full compensatory relief; this is a prima facie injustice. Settlement, in these circumstances, fails to achieve corrective justice of the Aristotelian variety. 247. It is widely acknowledged that most lawsuits in the United States settle, and that the legal system contains various mechanisms that serve to encourage settlement rather than public adjudication. For a thorough but critical review of these facts about U.S. legal practice, see Marc Galanter & Mia Cahill, “Most Cases Settle”: Judicial Promotion and Regulation of Settlements, 46 STAN. L. REV. 1339 (1994). 248. JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 203 (1988) [hereinafter COLEMAN, MARKETS] (“If justice requires giving each party his or her due . . . his or her desert, then settlements almost never satisfy this principle of justice. One concern, then, is the extent to which parties can legitimately or justifiably negotiate around the requirements of justice, and the extent to which legal institutions that encourage their doing so . . . are desirable and defensible.”). 524 BUFFALO LAW REVIEW [Vol. 62 True, encouraging settlement might be explained on grounds of efficiency and cost. Courts are costly institutions with heavy caseloads. So it makes sense that they concern themselves with live disputes only.249 Surely, however, if tort law embodies the principle of corrective justice and seeks to ensure that corrective justice is done, why should courts encourage settlement, even in cases where they think plaintiffs might be entitled to full compensation?250 Why then do judges regularly approve of settlements that fall well lower than compensatory relief, even in cases where the defendants appear to have tortiously injured the plaintiffs?251 And why do courts lack the authority to more regularly revisit settlements that are inadequate? The law seems to discourage revisiting settlements and binding arbitration, even in cases in which it is fairly clear that the results of those processes fall short of full compensation.252 None of these mysteries is difficult to explain, however, on accounts of corrective justice that do not regard full compensatory relief as the sine qua non of corrective justice. The default rule in some jurisdictions is that courts simply do not get involved in settlements.253 True, they sometimes police the outer boundaries of decency in approving these settlements, and hence are at least nominally required to 249. See, e.g., People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) (“Courts exist for the purpose of deciding live disputes involving ‘flesh-and-blood’ legal problems with ‘data relevant and adequate to an informed judgment.’”) (quoting New York v. Ferber, 458 U.S. 747, 768 (1981) (internal quotation marks omitted)). 250. See COLEMAN, MARKETS, supra note 248, at 203. 251. Id. at 204-05. 252. On arbitration, see, e.g., Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003) (“It is well established that courts must grant an arbitration panel’s decision great deference.”). The circumstances under which federal courts are permitted to revisit arbitration decisions are severely limited by statute. See, e.g., Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 90-91 (2d Cir. 2008) (citing the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (2006)). 253. See, e.g., Estate of Sa’adoon v. Prince, 660 F. Supp. 2d 723, 724-25 (E.D. Va. 2009) (“Federal courts are not vested with a general power to review and approve settlements of suits between private parties. . . . It is fair to say, then, that federal courts as a general matter do not review and approve settlements of lawsuits between private parties.”). But see id. at 725 (listing exceptions). 2014] MAKING AMENDS 525 determine whether they are reasonable.254 But they police to ensure reasonableness—not necessarily to ensure that plaintiffs who might prevail receive full compensatory relief.255 The making amends account explains why: corrective justice requires a reasonable and adequate conciliatory gesture to the victim—and victims are typically in the best position to determine what gesture counts as reasonable and adequate. CONCLUSION Corrective justice theorists seek to explain tort law’s key concepts in terms of principles of corrective justice, which are typically understood to incorporate duties of repair. But these accounts face seemingly powerful criticisms from civil recourse theorists, who point out important features of tort law’s normative structure that corrective justice theory has difficulty explaining. They propose rejecting corrective justice theory. Scott Hershovitz responds by arguing that, rather than abandoning corrective justice as an explanation of tort law, we should alter our understanding of corrective justice itself. This paper continues the dialectic. We saw how Hershovitz’s understanding of corrective justice incompletely responds to these criticisms and threatens to distort rather than illuminate tort law. And we have tried to provide a new account of corrective justice both plausible in its own right 254. A federal judge in the Southern District of New York, made headlines when he declined to approve a settlement between the Securities and Exchange Commission and Citigroup Global Markets. See Edward Wyatt, Judge Rejects an S.E.C. Deal with Citigroup, N.Y. TIMES, Nov. 29, 2011, at A1. This grabbed attention in part because courts rarely disapprove of settlements involving the agency. The court found that the proposed settlement, according to which Citigroup admitted no wrongdoing, was “neither fair, nor reasonable, nor adequate, nor in the public interest.” SEC v. Citigroup Global Mkts., 827 F. Supp. 2d 328, 332 (S.D.N.Y. 2011). The case is on appeal. See SEC v. Citigroup Global Mkts. Inc., 673 F.3d 158 (2d Cir. 2012). 255. See, e.g., Lynn’s Food Stores, Inc. v. Dep’t of Labor, 679 F.2d 1350, 1353, 1355 (11th Cir. 1982) (explaining that, even in the context of claims pursued under the Fair Labor Standards Act (FLSA), which requires federal courts to closely scrutinize settlements between employees and employers, the overarching goal of these judicial evaluations is to ensure that they represent “a fair and reasonable resulution [sic] of a bona fide dispute over FLSA provisions”). 526 BUFFALO LAW REVIEW [Vol. 62 and able to rebut the objections against traditional, repair- based conceptions. In reorienting our understanding of corrective justice, we relied on some of Hershovitz’s insights. He is correct, for example, to recognize that responding to one of the objections—the “remedies” objection—requires describing the core duty of corrective justice in more general terms. Out went the duty of repair, and in came the more fundamental, and more abstract, duty to make amends. The other objections attacked the ability of corrective justice to explain the basic normative structure of tort law, by focusing on so-called “substantive standing” requirements and the fact that no duty of redress arises at the moment a tort occurs. Because these objections are structural in nature, they require a structural response. To that end, we conjectured that the goal of tort law is to facilitate the amends-making process in a way that protects the morally important interests of victims to control how that process proceeds, if at all. This instrumentalist approach to tort theory helped to explain the structural mismatch. We also examined the issue of victim control, which has been almost entirely overlooked in the literature on corrective justice. But it should not be. Considering victims’ interests in control helps to provide a more nuanced understanding of corrective justice, as well as a largely untapped explanatory resource wholly consistent with corrective justice. It allows us to explain, for example, why victims are allocated rights of action in tort, as opposed to imposing affirmative legal obligations on wrongdoers to come forward in the aftermath of their wrongdoings: allocating that obligation on wrongdoers would overlook the moral importance of affording the right of victims to simply forego amends. And imposing obligations on wrongdoers threatens to divest victims of the important interest they have in initiating the amends-making process, including having the first crack and making and shaping their allegations. But there has been a tacit concession to Goldberg and Zipursky throughout this paper that I have tried to make explicit. They argue that corrective justice theories do not always cut tort law at the joints. The amends-making account does not either. But the account does explain why this should not be worrisome. This is because, in saying that tort law aims to facilitate the informal amends-making process by 2014] MAKING AMENDS 527 correcting for certain problems inherent in that process, one need not be committed to claiming that the normative structure of tort law and corrective justice map onto each other perfectly and in every respect. Indeed, because law is a blunt and formal instrument that tries to make the rights and responsibilities of parties more explicit than they would otherwise be in the subtle and informal world of morality, we should expect there to be an imperfect mapping from one domain to the other. The making-amends account gives us some way to predict where the mismatch will happen legitimately. This article remains a sketch. Making good on the promises of the making-amends conception of corrective justice and tort law will require further work. One issue that needs to be addressed is to see whether the making-amends conception is compatible with strict liability doctrines. This is an important area of tort law that has notoriously posed difficulties for corrective justice theories. Another important project is to show how, if at all, this very abstract theory has normative bite. Does it leave tort law just as it is or does it help us resolve some enduring controversies about tort law? Does the making-amends conception favor some default rules over others? There is also work to be done in fleshing out a conception of responsibility that best coheres with the making-amends conception. In any event, we should share Scott Hershovitz’s optimism that tort theorists and theorists of private law more generally will benefit from expanding our understanding of corrective justice. Doing so will not only help illuminate tort law, but will also help us to reconcile corrective justice and civil recourse theory. They are natural complements, not competitors.256 But this is also a project for another occasion. 256. Others seek a similar reconciliation. See, e.g., Arthur Ripstein, Civil Recourse and Separation of Wrongs and Remedies, 39 FLA. ST. U. L. REV. 163, 198- 203 (2011). 
work_rjauco72crb4he6ykd753bmz5a	----	Informational Justice: A Conceptual Framework for Social Justice in Library and Information Services Kay Mathiesen LIBRARY TRENDS, Vol. 64, No. 2, 2015 (“Social Justice in Librar y and Information Sci- ence and Services,” edited by Bharat Mehra), pp. 198–225. © 2015 The Board of Trustees, University of Illinois Abstract This article presents a conceptual framework of social justice for library and information science (LIS) and services responsive to their core concerns and drawing from the disciplinary literatures in both philosophy and LIS. The framework is introduced in terms of the multifaceted concept of informational justice, defined as the just treatment of persons as seekers, sources, and subjects of informa- tion. The article also expands on the central aspect of informational justice, namely iDistributive justice, defined as the equitable distri- bution of access to information. An iDistributively just system is one that ensures all persons have sufficient access to information, where access is understood as a capability sensitive resource. Introduction The profession of librarianship has long had a social ideal at its core. At the founding meeting of the American Library Association (ALA) in 1876, the library was praised as an “instrument always working in the direction of moral and social development” (Garrison, 1979, p. 35). With the ALA’s adoption of the “Library Bill of Rights” in 1939, protecting intellectual freedom and fighting censorship developed into a “professional impera- tive” (Wiegand, 1999, p. 11). More recently, the profession has expanded its scope beyond the confines of the library itself. In 1990 the ALA adopted the “Policy on Library Services to Poor People” (Holt & Holt, 2010, p. 14), calling for, among other things, promoting equitable access, public aware- ness, and public policies to aid those who are poor (ALA, 2014). These social ideals are encompassed and extended in current discussions of so- cial justice within the LIS professions (Britz & Blignaut, 2001; Dadlani & Ross, 2014; de la Peña McCook, 2001; Duff, Flinn, Suurtamm, & Wallace, informational justice/mathiesen 199 2013; Gilliland, 2011; McMenemy, 2012; Mehra, Rioux, & Albright, 2010; Pateman & Vincent, 2012; Usherwood, 2011). In order for this trend in LIS to have its promised impact, however, there is a strong need for LIS to develop its own understanding of social justice. This article addresses this challenge by developing a practical account of social justice for LIS that is relevant in the twenty-first century. The term social justice is resonant with a number of positive associa- tions—e.g., fairness, equality, inclusion, and diversity. The concept it- self, however, remains undertheorized. As Rioux (2010) points out, “few studies of LIS are explicitly guided by established social justice theories” (p. 10). Philosophers have developed the most sophisticated accounts of social justice, so it is natural to look to philosophical theories for guidance (Mehra et al., 2010; Rioux, 2010). It is not clear, however, how useful it is to simply apply to issues in LIS a theory of social justice developed elsewhere. While such established theories must be brought into the conversation, they may not speak directly to the particular concerns of LIS professionals. The approach taken here is to pull from various philosophical accounts of social justice to help in developing a relevant framework of social justice for LIS in terms of what this author calls informational justice. The theory of social justice for LIS starts with its historical roots in philosophical theories of social justice. These provide an understanding of how LIS professionals and scholars are using the idea of social justice in their work. Using these conceptual resources,1 a multifaceted character- ization of social justice is developed. This characterization highlights two features of a social justice orientation (an institutional focus and an ethic of care, solidarity, and respect) and three elements of social justice (dis- tribution, participation, and recognition). The second part of the article describes a framework of social justice for LIS in terms of informational justice, defined as justice for persons and communities in their activities as seekers, sources, and subjects of information. The final part of the article focuses on one aspect of informational jus- tice—justice for persons as seekers of information. As such, all persons deserve an equitable share of information resources, what is called here iDistributive justice. While information equity (Lievrouw & Farb, 2003) is often held up as a goal for LIS (see, e.g., Kranich, 2001), it is not a straight- forward matter to define what is meant by an “equitable share” of informa- tion. If social justice is to be a goal in the LIS professions, then we must have a way to assess to what extent we are achieving this goal. In order to do that, we need to specify the goal more precisely by asking two questions: (1) What is being distributed? and (2) What is a just distribution? Drawing from philosophical theories of distributive justice, the answers to these two questions form the foundation for the related concept of iDistributive justice. It will be argued that the focus of iDistributive justice should be on ensuring access to information as a capability sensitive resource, while un- 200 library trends/fall 2015 derstanding access as relational and multifaceted. It is also argued that a just distribution of access to information is one in which every person has sufficient access to exercise his or her basic capabilities. A Note on Methodological Approach This article is a philosophical inquiry into the nature of social justice in the context of information systems and services. As such, it draws on literature from both LIS and philosophy in articulating a conceptual framework of informational justice that can be applied in a wide range of LIS settings and contexts. The discussion presented here emerges from applying a methodological approach of philosophical research. Such an approach is similar to the stance employed by numerous philosophers throughout history and referred to in this article, e.g., John Rawls, David Miller, Iris Marion Young, Nancy Fraser, Martha Nussbaum, and Amartya Sen. It in- volved intensive and close reading of these and other theorists, and the application of critical and contextual thinking to the core concerns of justice, information, and society. Based on the resulting analysis, various new terms and definitions were constructed, conceptual frameworks were developed, and justifications for these definitions and frameworks were ar- ticulated. The intent of this article is to present background information, develop the framework, and lead the reader through the reasoning for the framework. The intention is for the work to provide valuable theoretical and conceptual tools that will help LIS professionals think more clearly about social justice and act more mindfully and deliberately as social jus- tice advocates as a result. Philosophical Accounts of Social Justice While philosophical discussion of the concept of justice goes back to at least Plato (Kamtekar, 2001) and Confucius (Chan, 1994), the term “social justice” is relatively new. The Jesuit Priest Luigi Taparelli D’Azeglio (1793– 1862) is credited with having introduced the term in the mid-nineteenth century (Miller, 1999). In the late nineteenth century, social justice be- came a topic of discussion among philosophers and social critics. At that time political theorists, such as John Stuart Mill, were responding to chal- lenges to classical liberal theory posed by communist and socialist theories (Miller, 1999). The first book-length treatment of the topic, Westel Wil- loughby’s Social Justice: A Critical Essay (1900), conceived of social justice as a critical project that reveals the “discrepancies in many places between the ethical ideals actually held, and the social and economic conditions really existing” (p. 7). Adding the adjective “social” to “justice” emphasizes the fact that so- ciety as an entire system may be evaluated on the basis of whether it is just. As Miller (1999) puts it, “Social justice requires the notion of a soci- ety made up of interdependent parts, with an institutional structure that informational justice/mathiesen 201 affects the prospects of each individual member.” (p. 4). Philosophical accounts of social justice focus on what is termed the “basic structure of society,” including the “political constitution, and the principle social and economic arrangements” (p. 4). The feminist political philosopher Iris Marion Young (2011) takes an even broader view, stating that social justice “concerns all aspects of institutional organization, public action, social practices and habits, and cultural meanings.” (p. 9). The subject of social justice, then, is the entire social system. Social justice requires us to ask big questions about the existence of injustices in the economic, political, and cultural spheres. The continuing Catholic tradition of social justice adds a personalist ethic that aspires to treat every person as part of the human family (de la Peña McCook, 2001). In an address on social justice (2006), Pope Bene- dict XVI called for respect for both the needs and rights of individuals and “genuine solidarity that commits people to live and work always for one another and never against or to the detriment of others.” The importance of solidarity and the value of human connections of care are emphasized in a number of more communitarian philosophies, including the Feminist Ethic of Care (Noddings, 2013) and the African philosophy of Ubuntu (Murithi, 2006). Combining both of these perspectives, a social justice orientation includes both an understanding of social justice as a matter of social institutions and an ethic of solidarity, care, and respect for indi- vidual persons and communities within these institutions. In contemporary political philosophy the term “social justice” is often used synonymously with distributive justice (Miller, 1999, p. 2; Young, 2011, chap. 1), which is contrasted with retributive justice. While retributive jus- tice (also called correctional justice) is concerned with appropriate punish- ment for violations of law or morality, distributive justice is concerned with the just distribution of goods among the members of a society (Velasquez & Clair, 1990). Philosophical theories of social justice concern the just distribution of what the political philosopher John Rawls (1971) calls “the benefits and burdens of social cooperation” (p. 4). Philosophers disagree about what should be distributed (Brighouse & Robeyns, 2010); should we be concerned with the distributions of satisfaction of preferences, or resources, or capabilities? Philosophers also disagree about what a just distribution should look like (Lamont & Favor, 2013); should goods be dis- tributed according to desert, equally, so as to create greatest benefit to the least well-off, or so that everyone has a sufficient amount? In the section of this article on iDistributive justice, these various theories of distributive justice will be discussed in detail. Some philosophers, most notably Iris Marion Young (2011), have ar- gued that the distributive paradigm of social justice is too narrow. Young defines social justice as “the elimination of institutionalized domination and oppression” (p. 16). She argues that social justice not only concerns 202 library trends/fall 2015 the distribution of benefits and burdens among members of a society but also the ways in which persons are depicted in “cultural imagery and sym- bols” (p. 20). Some of the latter, such as racist, classist, or sexist imagery, can prevent us from recognizing all persons as equally valuable and worthy of respect. Nancy Fraser’s (2001) conception of social justice combines these two aspects of social justice. These aspects of social justice can be called, follow- ing Fraser, distributive and recognitional justice. According to Fraser, What is needed is a broad and capacious conception [of justice], which can accommodate at least two sets of concerns. On the one hand, such a conception must encompass the traditional concerns of theories of distributive justice, especially poverty, exploitation, inequality, and class differentials. At the same time, it must also encompass concerns re- cently highlighted in philosophies of recognition, especially disrespect, cultural imperialism, and status hierarchy. (p. 4) In order to bring these two aspects of social justice together, Fraser pro- poses a third aspect: what she calls the “principle of parity of participa- tion,” requiring that “all members of the society interact with one another as peers” (p. 6). Fraser argues that a society lacking distributive or recog- nitional justice will also lack participatory justice, and vice versa. The Place of Social Justice in LIS While some LIS scholars and practitioners only offer diffuse characteriza- tions of social justice, a number of others provide precise definitions of the term adopted from their philosophical and historical origins and extrapo- lated to varied LIS contexts. These echo philosophical concerns of social justice in terms of equity, participation, inclusion, diversity, institutions, commonality, and other areas as applied in LIS. According to Mehra et al. (2010), for example, a socially just society is one in which “individuals and groups are treated fairly and receive an equitable share of all the benefits in society” (p. 4820). Rioux (2010) gives a similar definition, but uses the term “equal” rather than “equitable” (p. 11). The notion of an equal or equitable share is most frequently mentioned in the literature and cap- tures the concern with distribution. Morales, Knowles, & Bourg (2014) characterize social justice as including respect for diversity, inclusion, and “the ability of all people to fully benefit from social and economic prog- ress and to participate equally in democratic societies” (p. 440). Singh (2014) points out that social justice concerns society-wide or institutional policy, defining social justice as “a policy of inclusion in which a society or institution provides all individuals with equal opportunities” (p. 50). Williams-Cockfield (2014) defines social justice as “the advancement of equality and commonality within a society that understands and values human rights.” informational justice/mathiesen 203 Based on a survey of LIS articles referring to social justice, the au- thor identified a number of key concepts and approaches. Social justice is characterized in various ways in the LIS literature; the following three strategies are the most typical: (1) categories of people or communities burdened with social injustice; (2) descriptions and definitions of social justice; and (3) strategies for achieving social justice within library and information services. The following provides a snapshot of both the range of approaches and the frequency with which they are used in the litera- ture. Works on social justice in LIS often specify persons and communities who are oppressed and disadvantaged2 due to their • ethnicity and/or language (Henderson, 1988; Naidoo, 2014); • race (Dunbar, 2006); • sexual orientation (e.g., Naidoo, 2014; Vincent, 2012); • gender status (e.g., female, transgender, intersex) (Vincent, 2012); • physical ability (e.g., Naidoo, 2014; Hill, 2011); • health status (e.g., Henderson, 1988); • religion (e.g., Naidoo, 2014); • immigration status (e.g., Naidoo, 2014; Vincent, 2012); • age (e.g., Vincent, 2012); • income level and housing status (e.g., Vincent, 2012). Authors in LIS also describe social justice using such phrases and terms as • freedom (e.g., de la Peña McCook, 2001; Williams-Cockfield, 2014); • human rights (e.g., Samek, 2007; Williams-Cockfield, 2014); • dignity and/or agency of the individual (e.g., de la Peña McCook, 2001; Duff et al., 2013); • democracy and/or representation (e.g., Duff et al., 2013; Mehra, Al- bright, & Rioux, 2006; Morales et al., 2014); • inclusion and/or participation (e.g., de la Peña McCook, 2001; Hecha- varria, 2014; Morales et al., 2014; Singh, 2014); • commonality, common good, and/or community (e.g., Mehra et al., 2006; Rioux, 2010; Williams-Cockfield, 2014); • diversity (e.g., de la Peña McCook, 2001; Mehra et al., 2006; Morales et al., 2014); • equity or equality (e.g., Dadlani & Ross, 2014; de la Peña McCook, 2001; Duff et al., 2013; Hechavarria, 2014; Mehra et al., 2006; Morales et al., 2014; Rioux, 2010; Singh, 2014; Williams-Cockfield, 2014). Other authors focus on social injustice using terms such as • poverty and homelessness (e.g., Longstaff, 2011); • discrimination (e.g., Longstaff, 2011); 204 library trends/fall 2015 • violence and hate (e.g., Longstaff, 2011); • oppression (e.g., Duff et al., 2013; Dunbar, 2006). The philosophy surrounding relevance of social justice in LIS is also varied. Some argue that it is not the job of librarians, archivists, and other information professionals to advocate for social justice, because our pro- fessional obligation is to be neutral brokers of information (Greene, 2013). The argument for professional neutrality says that LIS profession- als ought not to give special status to particular points of view (e.g., those promoting particular social goals or conceptions of justice), but to provide a wide range of points of view (Mathiesen & Fallis, 2008). According to these neutralists, if LIS professionals take positions on social and political issues, they will undermine their ability to be seen as neutral brokers of information. By not favoring particular points of view, LIS professionals thereby serve all people no matter what information they are seeking. Through neutrality, LIS professionals thus express their equal concern for all patrons. This justification of neutrality, however, is anything but neutral—LIS professionals value neutrality because they value such things as equality, justice, and service. LIS is the discipline that seeks to design systems and services that link people to information. Public librarianship, for example, is based on the belief that doing so has a social value, because an informed citizenry is better than an uninformed one and a life with access to a rich array of information resources is better than one without such access. Thus the real question is not whether LIS professionals should be neutral, but when and whether neutrality actually serves these values and when it does not. Neutrality serves these values when, for instance, information profes- sionals provide the same level of service to a person whose beliefs they violently disagree with as they do to those with whom they agree. It does not serve those values when we fail to attend to the ways in which libraries and other information services may be reinforcing the exclusion and mar- ginalization of underserved populations. The author suggests that seeking social justice, then, is not antithetical to the true value of neutrality. The question arises, what is the unique role of libraries and librarian- ship in the promotion of social justice? It is important to keep in mind the breadth of concerns about social justice. Social justice applies to all aspects of a person’s life, from her health to her ability to participate in political decision making to her opportunities for leisure. However, while it is necessary to keep social justice writ large in mind, the primary focus for LIS is on justice with regard to persons as seekers, sources, and subjects of information: what will be called here informational justice. What makes informational justice of central concern, and thus why libraries and other information services are particularly important, is the fact that informa- tional injustice produces and reinforces other forms of social injustice, while information justice undermines systems of social injustice. Indeed, informational justice/mathiesen 205 informational justice serves as a good proxy for social justice writ large, because opportunities to receive and share information are central means for enhancing all aspects of people’s lives. Need for a Multidimensional Account of Social Justice in LIS Based on the above summary of social justice as it has been discussed in the disciplines of philosophy and LIS, a multidimensional account of social justice seems appropriate. As Rioux (2014) has pointed out, social justice is “a diverse concept without a universally-accepted definition” (p. 25). This suggests that it may be preferable to avoid providing a single definition of social justice for LIS, so as to avoid prematurely limiting its scope. Following this approach, a single unified definition of social justice is not provided here. Instead, based on the forgoing literature review, it is possible to isolate five features of a social justice approach as potentially relevant to the LIS professions; these include two essential components of a social justice orientation and three important foci of social justice in terms of their potential relevance to the LIS professions. Components of a Social Justice Orientation • Institutional perspective. Institutions, economies, and cultures can be un- just without any individual person intentionally acting unjustly. A focus on social justice in LIS must keep in mind the importance of large structural and cultural forces and attend to how they shape the life prospects of individual persons and communities. • Ethic of care, solidarity, and respect. It matters how those concerned with social justice relate to their fellow human beings. A social justice ori- entation in LIS approaches these issues with an attitude of care, soli- darity, and respect for the individual human beings and communities involved. Foci of social justice • Distribution. The way in which institutions, economies, and cultures distribute goods (such as resources, opportunities, abilities) is socially constructed and should be evaluated in the LIS professions from the perspective of justice. • Participation. Social justice recognizes the agency of all persons and avoids treating people as passive recipients of assistance. All persons within the community should have a voice and influence within social systems and institutions that affect them, including the LIS professions. • Recognition. Cultural imagery and symbols may create and reinforce structures of domination and oppression; thus we should attend to the ways in which persons and communities are represented within various cultural institutions, including LIS settings and contexts. 206 library trends/fall 2015 Strategies for LIS to Promote Social Justice A review of the literature in LIS on social justice shows a number of inter- connected strategies for how libraries and other information services can (and often do) promote social justice.3 • Creating and supporting diversity in the information professions (Mo- rales et al., 2014). Example: The University of Arizona’s Knowledge River program recruits and provides financial and other support for Hispanic and Native American students seeking an MLS (Montiel-Overall & Little- tree, 2010). (For more examples see Morales et al., 2014, pp. 443–444.) • Providing information resources about and for social justice and social injustice (Jimerson, 2007; Morales et al., 2014). Example: Archives and libraries devoted to the collection of information about human rights and documenting human rights violations (Mathiesen, in press). • Treating people justly as seekers, sources, and subjects of information (Rioux, Mehra, & Albright, 2007). Example: The Protocols for Native American Archival Materials set out principles to guide ethical steward- ship of Native American cultural materials (Underhill, 2006). • Using the voices and resources of library professionals and organizations to directly advocate for social justice locally and globally (Longstaff, 2011). Example: The American Library Association has passed a num- ber of resolutions supporting social justice legislation in such areas as immigrant rights (ALA, 2007), marriage equality (ALA, 2009a), and universal health care legislation (ALA, 2009b). These four strategies can be seen as mutually supporting and enhanc- ing the ability of LIS professionals and organizations to create a socially just society. Promoting diversity within LIS professions and organizations directly increases social justice in the society by increasing it within those professions and organizations. Creating a diverse workforce of informa- tional professionals also creates an environment in which a diverse range of people are more likely to be treated justly in the provision of informa- tion services. One way to treat people justly as seekers of information is to provide them with resources to learn about the existence of injustices and about what social justice is and how to fight for it. Finally, by promoting social justice in society in a direct fashion, the profession shows itself to be an engaged and progressive force in that society. While all four strategies are worthwhile, it can be said that the third— treating people justly as seekers, sources, and subjects of information—is the core of what it means to be a socially just information professional or service. The rest of this article will focus on what it means to promote jus- tice in the defining activities of LIS. The framework is introduced in terms of the multifaceted concept of informational justice that is defined as the just treatment of persons as seekers, sources, and subjects of information. The article also expands on the central aspect of informational justice, informational justice/mathiesen 207 namely iDistributive justice, defined in terms of an equitable distribution of access to information. An iDistributively just system ensures that all per- sons have sufficient access to information, where access is understood as a capability sensitive resource. The Framework of Informational Justice Informational justice is a multifaceted concept, reflecting the three ways in which persons may be related to information—as seekers, as sources, and as subjects. To be treated justly as a seeker of information, persons should have an equitable access to information: this is called iDistributive justice. To be treated justly as a source of information, persons should have an equal chance to contribute to the production and provision of knowledge: this is called iParticipatory justice. To be treated justly as a subject of information, persons should be fairly depicted in the overall information array: this is called iRecognitional justice. Three Foci of Informational Justice • iDistributive justice. Information goods and information services should be equitably distributed among all members of the society. • iParticipatory justice. All members of the society should have opportuni- ties to communicate their point of view alone or in concert with others, to have that point of view taken into account, and to take part in shared decision making about the provision of information resources. • iRecognitional justice. Contents of information available within the infor- mation environment should include fair and accurate representations of all members of the society. The “i” has been added before each of the terms so as to highlight the context of information services and systems. In the rest of this essay, how- ever, in order to promote readability, the “i” will often be dropped. The reader should keep in mind, however, that the terms “distribution,” “par- ticipation,” and “recognition” will hereafter be used in their informational sense. As with distributive, participatory, and recognitional justice (Fraser, 2001), iDistributive, iParticipatory, and iRecognitional justice are mutu- ally reinforcing. An information system or service that promotes distribu- tive justice will also contribute to participatory and recognitional justice. Conversely, an information system or service that is rife with participa- tory and recognitional injustice is unlikely to be distributively just. Thus, it is important for libraries and other information services to consider all three types of informational justice. Information services and systems that are distributively just may contrib- ute to participatory justice by providing persons with the informational re- sources to develop and support their voices in public discussions. In addi- tion, by providing equitable access to all, a distributively just environment 208 library trends/fall 2015 insures that a wide range of people are exposed to those points of view. Distributive justice thus contributes to recognitional justice by creating an information environment that is welcoming to all people and by providing the information necessary to correct false information and stereotypes. Information services can support participatory justice by providing op- portunities for marginalized individuals and groups to express themselves. Participatory justice may contribute to distributive justice by providing more sources of relevant information for the community and by giving all members of the community—particularly those whose interests are of- ten neglected—a voice in the design and implementation of information services so as to ensure the relevance and effectiveness of those services. Recognitional justice has recently become a central concern in librarian- ship, as is evidenced by efforts to create more culturally competent profes- sionals (Montiel-Overall, 2009) and to ensure that libraries avoid collecting children’s books that reinforce stereotypes (Naidoo, 2014). Recognitional justice contributes to distributive justice by creating information environ- ments in which all can feel included and thereby more able to access the information they need. Recognitional justice contributes to participatory justice by undermining stereotypes that contribute to the silencing and ignoring of marginalized populations. A Focus on iDistributive Justice iDistributive justice is defined as an equitable distribution of information goods and services. This still leaves the question of what counts as an “equi- Figure 1. Relationship of mutual support between forms of informational justice. informational justice/mathiesen 209 table” distribution. To answer this question, we need to delve more deeply into theories of distributive justice. A theory of distributive justice requires that we specify a good and a rule (Anderson, 2010, p. 81). The “good” re- fers to the thing distributed, while the “rule” refers to how we determine the just distribution of the good. In the following subsection, two theories of goods are considered—the resource theory and the capability theory. It will be argued that we should think of the good of iDistributive justice as access to information, where access is understood as a capability enhanc- ing resource. In the next section, various rules of equitable distribution are considered. It will be argued that we should adopt a sufficientarian rule of distribution, where sufficiency is determined by access to informa- tion necessary for persons to exercise their fundamental capabilities. Theories of Distribution—What to Distribute? There are three standard philosophical theories of what good(s) we should be trying to distribute equitably. Distribution of Preference Satisfaction. This utilitarian approach is most of- ten adopted by those working in economics and public policy. For the utilitarian, the good to be distributed is the total amount of pleasure, hap- piness, or preference satisfaction that people (and perhaps other sentient beings) enjoy (Bentham & Mill, 2004). Preference utilitarianism, the view that we should seek to satisfy people’s preferences or desires, is a com- monly assumed framework for assessing success in the supply of services. Suggested assessments of library service frequently couch preference sat- isfaction in terms of “customer satisfaction” (Hernon & Whitman, 2001). There is, however, a serious problem with this approach when it is ap- plied to environments in which there is poverty, discrimination, and op- pression. Subjective evaluations of satisfaction are vulnerable to the dis- tortion of adaptive preferences. Adaptive preferences are preferences that persons adopt based on their circumstances—they are adaptive to their environment, be it physical or social (Khader, 2011). Persons who have fewer opportunities due to a variety of social factors—such as racism, sex- Figure 2. Theories of the Good. 210 library trends/fall 2015 ism, poverty, or disability—may adapt their preferences to what they are likely to get (Burchardt, 2005). A woman in a sexist society, for instance, will likely lower her expectations for career success, and thus her prefer- ences for advancement opportunities in her career will be more easily satisfied than those of her male peers. Thus a system that merely looks at preference satisfaction will likely get results that are skewed in ways that re- inforce existing social inequities. For this reason, a less subjective account of the good is preferable. Distribution of Resources. Instead of considering whether people are satis- fied, we can look at the resources they actually have. The most well-known resourcist theory is Rawls’s theory of “justice as fairness,” presented in his seminal work, A Theory of Justice (1971). Rawls called his list of resources “primary social goods” (“primary goods” for short). Primary goods in- clude “rights and liberties, opportunities and powers, income and wealth” (p. 92). According to Rawls, we can focus just on primary goods when considering distributive justice, because these goods allow persons to ac- quire all sorts of other goods that they might want. As Rawls puts it, with primary goods, people “can generally be assured of greater success in car- rying out their intentions and advancing their ends, whatever these ends may be” (p. 92). It is plausible that access to information should also be included among the primary goods. Information is an essential all-purpose resource, much like income (van den Hoven & Rooksby, 2008). Rawls included both lib- erties (and freedoms) and more tangible goods and services in his list of primary goods. Similarly, information as a primary good includes both a liberty aspect and a tangible good aspect. The first is the freedom or liberty to receive and communicate information; the second is the actual availability of information as a thing. It is important to make this distinc- tion, because one could be free to have information in the sense that there are no laws limiting one’s access, while at the same time lacking actual ac- cess to information because the informational resources are not available. In the context of LIS, this seems like the obvious account of the good to adopt—if we care about informational justice, then what other good could we be concerned with distributing other than information resources? There are problems, however, with resourcist theories of the good. This was famously pointed out by Amartya Sen in his seminal paper, “Equal- ity of What?” (1980). According to Sen, the problem with focusing on whether people have access to certain resources is that, depending upon one’s physical, mental, and social situation, the same set of resources can lead to very different outcomes. For example, take two people who have exactly the same resources. It may seem that the distribution between them is just. Suppose, however, that one person has a severe disability and that this disability requires expensive assistive devices to carry out everyday life tasks. In that case, even though both people have the same resources, informational justice/mathiesen 211 they do not get the same benefit from these resources. As Sen points out, this is not an unusual problem: If people were basically very similar, then an index of primary goods might be quite a good way of judging advantage. But, in fact, people seem to have very different needs varying with health, longevity, climatic conditions, location, work conditions, temperament, and even body size (affecting food and clothing requirements). So what is involved is not merely ignoring a few hard cases, but overlooking very widespread and real differences. Judging advantage purely in terms of primary goods [or resources] leads to a partially blind morality. (pp. 215–216) The sort of situation with which Sen is concerned arises frequently in the context of information services. Even when everyone can get information from their public library, for instance, they will vary in their ability to use and benefit from the information available. So, for example, a person who is vision impaired will not be able to get the information s/he needs from the resources of the library without access to various assistive devices and/ or resources in Braille. Distribution of Capabilities. As an alternative to the resource approach, Sen (1980) suggests that we measure not resources, but capabilities, i.e., the ability to do things. Capabilities would include such things as “the ability to move about” one’s environment, the ability “to meet one’s nutri- tional requirements, the wherewithal to be clothed and sheltered, [and] the power to participate in the social life of the community” (p. 218). As Rawls himself was at pains to emphasize, the reason resources are valuable is because they are all-purpose means that allow us to pursue our ends, whatever they may be. Sen takes this a step further. He points out that we care not so much about resources per se but about what we can actually do, experience, and be. So, our measure of distributive justice should be keyed to our abilities to function in these various ways that are important to us. In the case of informational justice, Sen’s theory would have us look to whether the distribution of information resources and services is en- abling people to engage in important life activities and states of being. So, for instance, he wouldn’t have us seek to measure how many computers we have, or how many people accessed the archives, or even how many people were satisfied with their experience. Rather, he would have us look for indicators of whether access to our services is helping people do and be what is important to them (Britz, Hoffmann, Ponelis, Zimmer, & Lor, 2013; Hill, 2011). While the capability approach reminds us to focus on outcomes rather than resources, it is not clear that it provides a useful framework for LIS. How are LIS professionals and researchers to evaluate the levels of capabilities in a community? If we can determine the levels of capabilities, how do we know how library services impact upon them? The capabilities approach is a theoretical framework for evaluating the re- 212 library trends/fall 2015 source distribution of an entire society. Trying to directly apply the theory of capabilities to LIS is unlikely to be a good fit. Distribution of Information Access—A Capability Sensitive Resource Luckily, in order to specify the good of iDistributive justice, we do not need to resolve the debate between resource and capability theorists. This sec- tion develops a theoretical framework that takes the insights of both theo- ries into account. It is suggested here that access to information should be understood as a capability sensitive resource. This requires us to change our focus from thinking of information as the resource, to thinking of ac- cess to information as the resource. It also requires that we define access in a way that incorporates the concerns raised by Sen about resource theories. The following definition of information access seeks to incorporate both of these features: A person has access to information when he/she has the freedom or opportunity to obtain, make use of, and benefit from that information. (Mathiesen, 2014, p. 606) A key feature of this definition is that it makes information access a rela- tion between persons and information (or information services/systems). Whether some information is accessible depends both on the state of the information and on the state of the person who seeks to access it. Thus one can make information accessible by changing either the condition of the information or the condition of the person who wishes to access the information. So, for example, if there is a website with information about a health condition and the person who needs this information does not have access to the Internet or the skills to use it, then this information is not accessible to her. In this case, the information can be made accessible by either providing a printed copy of the information to the individual, or by providing her with access to the Internet and training in how to navigate it. This relational account of access takes into consideration the differential capacities of persons to, in Sen’s words, transform resources into functionings. Thus this account of access is sensitive to the differences among persons in their abilities to benefit from information as a resource. Emphasizing the relational nature of information access makes it possible to identify the multidimensional nature of access. In determining whether information is accessible for some person or group, information profes- sionals must consider the following five factors (Mathiesen, 2014): • Availability: Does the needed information exist? • Findability: Can information seekers find the information? • Reachability: Can the information seekers actually get to the informa- tion? informational justice/mathiesen 213 • Comprehensibility: Can the information seeker understand the infor- mation? • Usability: Is the information meaningful or useful for the information seeker? To the extent that any of these factors is missing or inadequate, a per- son does not fully have access to information. Thus, when measuring dis- tributive justice, we should look at whether individuals and communities have access to information along all of these dimensions. For each of these facets there are intellectual, physical, and sociocultural determinants of access (Burnett, Jaeger, & Thompson, 2008; Thompson & Afzal, 2011; Mathiesen, 2014, p. 609). Thus, when evaluating whether information is accessible, we should consider whether it is intellectually, physically, and socioculturally accessible. So, for example, some information may be intel- lectually comprehensible, because the information seeker can understand the information presented, but at the same time it may not be physically comprehensible, because the information seeker has dyslexia. Informa- tion may not be socioculturally comprehensible if it uses images and meta- phors that do not speak to the cultural background of the information seeker. To illustrate these dimensions, consider the barriers to access faced by poor people, as discussed in the American Library Association’s web page on Outreach Resources for Services to Poor and Homeless People (ALA, 2014). First, there may be a problem with availability—information useful to this population may not exist. As the ALA points out, there may be a lack of “resources that address people’s experiences or current situations.” Figure 3. Access to information as a capability sensitive resource. 214 library trends/fall 2015 Research has shown that information needed by poor people is under- produced, due to their small impact on the market for information (South- well, Hamilton, & Slater, 2011). In order to solve the availability problem, LIS professionals and organizations may need to take an active role in publishing and distributing information (Koerber, 2014). Second, there may be problems with findability—this population may be underserved with resources to help them find relevant information. For example, a library may provide access to information that is of interest and relevant to the needs of poor persons, but due to staff members’ “prejudices against people who are poor or homeless” (ALA, 2014), these persons may not be provided with the resources, such as reference help, that they need to find the information they want. Third, even if they know where it is, the information may not be reachable—there may be specific barriers that poor people encounter in getting to the information. For example, such things as “library card or access policies requiring a permanent address” and “limited access to the library building by either limited means of trans- portation or service hours” (ALA, 2014) make it more difficult for poor people to get to the needed resources. Fourth, the information may not be in a format or language that is comprehensible to the population. For example, given the lack of educational opportunities for poor persons, it may be that materials relevant to their life situations are not available in formats that they can understand. Fifth, the information they have access to may not be usable by this population. For instance, it is likely that infor- mation targeted to middle-income persons will not be useful for those who are homeless or in poverty. Books on nutrition, for example, may recom- mend foods that are too expensive or are not available at the stores in poor neighborhoods (Food Research and Action Center, 2013). What Is an Equitable Distribution? As noted in the first section of this essay, discussions of social justice in LIS frequently use the terms “equality” or “equity.” It is not so simple a matter, however, to determine what is an equal or equitable distribution of access to information. Indeed, there are a number of different philosophical theories of what constitutes an equitable distribution of goods. Below is a discussion of four rules of distribution prominent in the philosophical literature: maximizing, egalitarian, prioritarian, and sufficientarian. Ulti- mately, a sufficientarian rule is defended as most appropriate for assessing whether the distribution of information access is equitable. Types of Rules Rules of distribution are often divided into patterned and nonpatterned. Patterned rules look at the pattern of distribution across the population and suggest that certain patterns are more just than others. Nonpatterned rules of distributive justice suggest that we look instead at whether people have what they deserve based on their past contributions or based on rules informational justice/mathiesen 215 of property and exchange (Nozick, 1974). Nonpatterned theories do not necessarily hold that vastly unequal distributions are unjust, as long as the distribution is the result of the application of a just rule of resource transfer. Nonpatterned rules are difficult to apply (because they require looking at the history of how someone ended up with their current share of the resource) and are, therefore, not good contenders for a rule of iDistributive justice to be applied when assessing the justice of information services. Thus, the discussion here will focus on what are called “patterned rules” of distribution. Patterned theories of justice can be divided into maximizing and egali- tarian as shown in figure 4. Maximization: The Maximum Amount of Good for the Maximum Number of People Maximization is often used in the evaluation of public services. As applied to information access, the maximization rule would require that we seek to achieve the greatest amount of access for the greatest number of peo- ple. So, for instance, a maximizing rule would have us consider how many people are able to use the library computers or how many people are able to access an archive. While these are important indicators, if we only con- sider the amount of resource available or the amount of usage the library gets, we may well be failing on the score of a just distribution of access. To see why this is the case, consider an important criticism of the maxi- mizing approach, most famously made by Rawls (1971). Rawls argued that summing across different individuals and seeking to increase the total amount of a good “does not take seriously the distinction between per- sons” (p. 27). Simply because there is more access overall does not mean that every person is getting his or her fair share of the resource. Indeed, policies that increase net gains overall may at the very same time seriously underserve certain segments of the population. For instance, in order to Figure 4. Rules of distributive justice. 216 library trends/fall 2015 get more people in the library we may cater to certain segments of the soci- ety—perhaps those who already have ample access to information through other venues. In short, it doesn’t matter only that we serve the most people possible, but that those who most need the services are getting them. This is something that the maximizing rule cannot take into account. Egalitarianism: The Distribution Must Be Equitable Egalitarian rules are concerned not just with how many people get access but with how that access is distributed across the population. Strict Egalitarianism. As applied to information access, strict egalitarian- ism (Nielsen, 1979) would require that everyone be provided with exactly the same level of access to information. Recall that access includes such factors as what is relevant and comprehensible to a person or group. Thus, for access to be equal, we would have to attend to the range of concerns and interests of all members of the community as well as their levels of literacy, etc. This may appear to capture quite well the idea of a just distri- bution of information. There is, however, a widely acknowledged problem with the strict egalitarian rule: the “leveling down” problem (Brake, 2004). Egalitarianism requires that in cases where we are not able to bring every- one up to the same level, we should “level down” or reduce the amount of resources held by those who have more in order to achieve equality. Thus egalitarianism seems to commit us to a policy under which, if we cannot give everyone exactly the same access, then we ought not to provide bet- ter services for some than for others. Taken to the extreme, an egalitarian rule would require that if we cannot provide public libraries for all com- munities, we ought not to provide them for any. It seems wrongheaded to deprive some people of resources simply because not everyone can have them. Furthermore, as prioritarians (Rawls, 1971) are quick to point out, leveling down can have bad consequences for those who are the least well- off in the society. Prioritarianism. Rawls’s famous difference principle is prioritarian; accord- ing to the difference principle, the least well-off persons in the society have priority in the distribution (1971). The difference principle approach is egalitarian in spirit, but avoids leveling down. It allows some persons to have more than others, as long as that inequality has the overall tendency to improve the situation of the least well-off. As applied to iDistributive justice, the difference principle would permit a library to allow greater information access for certain members of the community if this leads to obtaining more funding that could be put into providing greater access for those less well-off. For example, the library might institute a fee-based service, the funds from which would go to improving the services for the poorest segment of its users. Getting more resources for the least well- off, even if not equal resources, will overall tend to promote equality by empowering them. We might be concerned that a prioritarian rule is not informational justice/mathiesen 217 sufficiently egalitarian, however. Allowing greater resources to some mem- bers of the community may reinforce the sense that some are “lesser” than others. For this reason, a prioritarian rule may not be the best principle of distribution for library and information services. Sufficientarianism. Sufficientarianism is an egalitarian option that fo- cuses on ensuring that all members of the community are guaranteed suf- ficient access to information. Under the “sufficientarian” rule there is a minimal standard of access that must be met for everyone (Shields, 2012). The sufficientarian rule shows equal respect for all by setting an equal baseline below which none should be allowed to fall. Resources should be expended first on bringing up those who do not have a sufficient degree of access. Because the sufficientarian rule does not say what to do about those who have more than a sufficient amount, it does not run into the lev- eling down problem. Because the sufficientarian rule just sets a baseline, it may be combined with any of the other rules. Once everyone has suffi- cient access, we can adopt any of the other rules—prioritarian, egalitarian, or maximizing. Given these features of the sufficientarian rule, the theory of iDistributive justice presented here is sufficientarian. Human Rights and Capabilities The sufficientarian conception of justice is quite common in discussions of human rights, which set baseline standards of treatment owed to all persons. Martha Nussbaum’s theory of capabilities (2003) seeks to articu- late those basic needs shared by all human beings and that are protected by human rights. Thus her list of capabilities (pp. 41–42) may be a good place to start reflecting on what information resources would be necessary for a sufficient level of access. The readers may wish to take the categories identified in Nussbaum’s (2003) following list as guidelines for the sorts of topics and skills on which library and information services should focus. • Life: “Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living” (p. 41). • Bodily Health: “Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter” (p. 41). • Bodily Integrity: e.g., freedom of movement, freedom from violence, sexual freedom. • Senses, Imagination, and Thought: This includes “being able to use one’s mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of reli- gious exercise” (p. 41). • Emotions: e.g., “to love, to grieve, to experience longing, gratitude, and justified anger” (p. 41). • Practical Reason: “Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life” (p. 42). 218 library trends/fall 2015 • Affiliation: e.g., having close relationships and being treated with re- spect. • Other Species: Relating to, e.g., “animals, plants, and the world of na- ture” (p. 42). • Play: e.g., athletic and other recreational activities. • Control Over One’s Environment: This includes both the political (e.g., free speech, political participation) and material environment (e.g., privacy, employment). This list is presented as a starting point for reflection on what a sufficient level of access to information for every member of the community would look like. There is not space here to go through how each of the capa- bilities could guide us in following a sufficientarian rule of distribution of information access. To illustrate how Nussbaum’s theory might be used, however, consider the capability of bodily integrity. Focusing on women in particular, this capability would be supported by access to information about such things as domestic violence, reproductive health, contracep- tion, and sexuality. Nussbaum’s list is by design general and relatively ab- stract, as the specifics must be filled in based on the culture and needs of the particular individuals and communities being served. Thus an es- sential component of satisfying distributive justice must be engaging the participation of various communities in expressing their needs as informa- tion seekers. Finally, it must be acknowledged that in many cases it will not be possi- ble for a library or other information service to provide the informational resources necessary for persons to achieve a sufficient development and exercise of their capabilities. Here we may find useful the approach taken by the United Nations to such situations. The UN holds that states should work to “achieve progressively” those human rights that require resources that may be in short supply or take time to develop (Eide, 1995, p. 20). In a similar way, LIS professionals and institutions can seek to achieve progres- sively a just distribution of information access. Informational Justice in Practice This article developed the concept of informational justice to provide LIS professionals with a framework for recognizing the central social justice issues within information services. While fully implementing this frame- work must be left for future research, at this point some practical impli- cations for the design and evaluation of LIS services and programs can be derived from the framework. To illustrate these practical implications, suggestions for possible programs or activities are given below. The first lesson that can be drawn from this framework is that when de- signing programs and services, a social justice orientation requires making informational justice/mathiesen 219 ourselves aware of the social injustices imbedded in large institutional sys- tems and cultural assumptions. It should be kept in mind that the nature of oppressive systems is to obscure their own existence and impact; thus constant questioning as to whom we might be leaving out of our definition of “community” is imperative. This institutional perspective, however, may lead to creating static categories that reduce people to simplistic social and cultural stereotypes. This is where the attitudinal aspect of the social justice orientation is important; a professional with a social justice orienta- tion treats persons and communities with care, solidarity, and respect. The attitude of care fosters change through direct empathic relationships with those whom LIS professionals serve. Care alone, however, is insufficient as it may lead to an attitude of paternalistic superiority, which can dimin- ish people’s sense of self-efficacy and agency. Thus the value of solidar- ity—that is, seeing persons as equals and creating bonds of fellowship and community—is essential. Respect for individuals and communities recog- nizes that they are self-determining; their intentions for themselves are more important than, and may outstrip, even the most well-intentioned outsider’s understanding. Activities supportive of a social justice orienta- tion could include the following: instituting book or film groups that focus on works about and by underserved members of the community; inviting advocates from these communities to speak to staff; and encouraging staff to engage with communities outside the walls of the library. The second lesson that can be drawn from the framework is that creat- ing services and systems that equitably distribute access to information among members of the community requires a nuanced understanding of the communities to be served. Given this, it is imperative to assess and evaluate the resources available to historically marginalized and disadvan- taged members of the community, such as senior citizens, youth, persons with disabilities, and sexual, racial, linguistic, and ethnic minorities. Using Nussbaum’s list of capabilities, LIS professionals could analyze whether their information service makes accessible materials that support the ca- pabilities relevant to the mission of the service. The information-gather- ing stage may require moving beyond reliance on some of the traditional methods for measuring services, such as gathering usage statistics or sur- veying current patrons. Gathering only information about those currently using the information service does little to reveal what keeps some mem- bers of the community from using the service. Furthermore, due to “adap- tive preferences” those who are chronically underserved and marginalized in the community may not expect as much, and thus may be less demand- ing than more privileged patrons. Qualitative methods, such as structured or unstructured open-ended discussions with underserved members of the community, may be more appropriate. It may be useful to use the five facets of accessibility (availability, findability, reachability, comprehensibil- 220 library trends/fall 2015 ity, and usability) and the three determinates of access (physical, intellec- tual, and sociocultural) to generate a list of questions that can be used as a frame for data collection. One question might be, for example, “What are the sociocultural barriers to finding health information for Hispanics in our community?” (see Mathiesen, 2014 for more examples). The model of access as a multifaceted relation between persons and information can then be used to evaluate the accessibility of information. Given the rela- tional nature of access, it is important to keep in mind that information may be made more accessible by addressing either the resource side or the seeker side of the equation. For example, the intellectual barrier of illiteracy can be addressed by providing information in nontextual for- mats and by providing literacy education. The availability facet may be addressed by information services taking a role in authoring or publishing needed information. The third lesson that can be drawn from the framework of informa- tional justice is that the just distribution of information also requires the just treatment of persons and communities as sources and subjects of information. By seeking to include more voices within the information environment, LIS professionals and organizations help ensure that com- prehensible and usable information will be available to all members of the community. By seeking to ensure that persons and communities are accurately and diversely depicted within the information environment, LIS professionals can make a significant impact on the perceptions and expectations that shape the opportunities of marginalized members of the community. Finding ways in which a diverse array of members of mar- ginalized and stigmatized communities can work with LIS professionals in building diverse and accurate representations is one means to correct for unconscious biases and stereotypes. In this regard it is essential that the LIS profession itself strive for diversity along multiple dimensions. Conclusion Drawing from the disciplinary literatures in both LIS and philosophy, this article presented a conceptual framework for understanding social justice as related to LIS. The following summarizes the basic principles of this framework: • Social justice orientation includes both an institutional perspective and an ethic of care, solidarity, and respect. • Social justice is concerned with issues of distribution, participation, and recognition. • Informational justice requires that persons be treated justly as seekers, sources, and subjects of information. • In these roles, persons deserve iDistributive, iParticipatory, and iRecog- nitional justice. informational justice/mathiesen 221 • These three forms of informational justice are interdependent and mu- tually supporting. • iDistributive justice concerns the distribution of access to information. • Access to information is a relationship between some information source or service and a person or group of persons. • Information is accessible when it is available, findable, reachable, com- prehensible, and usable. • A just distribution of information is one that ensures that all persons have a sufficient level of access to information. • In seeking a sufficient level of access, we should focus on information that supports and enhances people’s capabilities. There is more work to be done on the theory of informational justice, both in the realm of theory and in the realm of practice. In addition to presenting the overall framework of informational justice, this article focused primarily on iDistributive justice. While there was not space to develop them here, two other foci of informational justice—iParticipa- tion and iRecognition—deserve equally careful conceptual development. Future theoretical work will expand on these concepts, providing detailed frameworks similar to that here developed for iDistributive justice. An- other important feature of the framework presented here is what was called the “social justice orientation.” More needs to be said about how this orientation plays out in the LIS professions. Finally, in order to be at all relevant, this framework should be applied in varied LIS settings. As a philosopher of LIS, the author must leave that work to information research professionals and empirical researchers, who she hopes will find this framework useful. Notes 1. This literature review is limited to works that explicitly use the term “social justice.” Once social justice has been explicitly defined, as I attempt to do in this essay, it should be pos- sible to offer a broader literature review that includes all works that focus on social justice issues, even ones that do not specifically use the term. 2. While it is important to specify where attention should be focused in addressing social injustice, no list can capture all disadvantaged or oppressed social positions in all cultures or contexts. New forms of social domination and exclusion may emerge, and hidden forms may come to light. For example, while the importance of ensuring accessibility for persons with physical disabilities has become a more central issue (Dobransky & Hargittai, 2006; Goggin & Newell, 2003), persons with mental disabilities and mental illnesses are not typically included within discussions of accessibility (Ridella, 2014). 3. This list does not necessarily identify all possible approaches, just some of the most com- monly discussed ones. References American Library Association (ALA). (2007). Resolution in support of immigrant rights. Retrieved from http://www.ala.org/offices/sites/ala.org.offices/files/content/wo/refer ence/colresolutions/PDFs/012407-CD20.2.pdf American Library Association (ALA). (2009a). Resolution on civil marriage equality, regard- less of sexual orientation. Retrieved from  http://www.ala.org/offices/sites/ala.org.of fices/files/content/wo/reference/colresolutions/PDFs/marriagequality.pdf 222 library trends/fall 2015 American Library Association (ALA). (2009b). Resolution endorsing legislative proposals for universal health care. Retrieved from http://www.ala.org/aboutala/sites/ala.org.aboutala /files/content/governance/council/council_documents/2009_annual_docus/54_uni versalhealthcare.doc American Library Association (ALA). (2014). Outreach services to poor and homeless people. Retrieved from http:// www.ala.org/advocacy/diversity/outreachtounderservedpopula tions/servicespoor Anderson, E. (2010). Justifying the capabilities approach to justice. In H. Brighouse & I. Robeyns (Eds.), Measuring justice: Primary goods and capabilities (pp. 81–100). Cambridge, UK: Cambridge University Press. Benedict XVI. (2006). Address to members of the “Centesimus Annus” foundation. Retrieved from http:// www.vatican.va/holy_father/benedict_xvi/speeches/2006/may/documents /hf_ben-xvi_spe_20060519_centesimus-annus_en.html Bentham, J., & Mill, J. S. (2004). Utilitarianism and other essays (A. Ryan, Ed.). London: Penguin. Brake, D. (2004). When equality leaves everyone worse off: The problem of leveling down in equality law. William and Mary Law Review, 46(2), 513–618. Retrieved from http:// scholar ship.law.wm.edu/wmlr/vol46/iss2/4 Brighouse, H., & Robeyns, I. (2010). Measuring justice: Primary goods and capabilities. Cambridge, UK: Cambridge University Press. Britz, J., & Blignaut, J. (2001). Information poverty and social justice. South African Journal of Library and Information Science, 67(2), 63–69. Britz, J., Hoffmann, A., Ponelis, S., Zimmer, M., & Lor, P. (2013). On considering the appli- cation of Amartya Sen’s capability approach to an information-based rights framework. Information Development, 29(2), 106–113. Burchardt, T. (2005). Are one man’s rags another man’s riches? Identifying adaptive expecta- tions using panel data. Social Indicators Research, 74(1), 57–102. Burnett, G., Jaeger, P., & Thompson, K. (2008). Normative behavior and information: The social aspects of information access. Library & Information Science Research, 30(1), 56–66. Chan, J. (1994). Making sense of Confucian justice. Philosophy East and West, 44, 559–575. Dadlani, P., & Ross, T. (2014). Information technology services and school libraries: A con- tinuum of social justice. In B. Mehra (Ed.), Social Justice, Social Inclusion [2014 special issue]. Qualitative and Quantitative Methods in Libraries Journal, 39–41. Retrieved from http:// www .qqml.net/papers/Special_Issue_2014_Social_Justice_Social_Inclusion/QQML_Jour nal_2014_SpecialIssue_39-48_DadlaniandTodd.pdf de la Peña McCook, K. (2001). Social justice, personalism, and the practice of librarianship. Catholic Library World, 72(2), 80–84. Dobransky, K., & Hargittai, E. (2006). The disability divide in Internet access and use. Informa- tion, Communication & Society, 9(3), 313–334. Duff, W., Flinn, A., Suurtamm, K., & Wallace, D. (2013). Social justice impact of archives: A preliminary investigation. Archival Science, 13(4): 317–348. Dunbar, A. (2006). Introducing critical race theory to archival discourse: Getting the conversa- tion started. Archival Science, 6(1), 109–129. Eide, A. (1995). Economic, social and cultural rights as human rights. In A. Eide, C. Krause, & A. Rosas (Eds.), Economic, social, and cultural rights: A textbook (pp. 9–28). Minneapolis: University of Minnesota Press. Food Research and Action Center. (2013). Why low income and food insecure people are vulnerable to overweight and obesity. Retrieved from http:// frac.org/initiatives/hunger -and-obesity/why-are-low-income-and-food-insecure-people-vulnerable-to-obesity Fraser, N. (2001). Social justice in the knowledge society: Redistribution, recognition, and participation. Paper presented at conference on “Gut Zu Wissen,” Berlin, Ger. Retrieved from http:// www .wissensgesellschaft.org/themen/orientierung/socialjustice.pdf Garrison, D. (1979). Apostles of culture: The public librarian and American society, 1876–1920. Madison: University of Wisconsin Press. Gilliland, A. (2011). Neutrality, social justice and the obligations of archival education and educators in the twenty-first century. Archival Science, 11(3–4), 193–209. Goggin, G., & Newell, C. (2003). Digital disability: The social construction of disability in new media. Lanham, MD: Rowman & Littlefield. Greene, M. (2013). A critique of social justice as an archival imperative: What is it we’re doing that’s all that important? American Archivist, 76(2), 302–334. informational justice/mathiesen 223 Hechavarria, L. (2014). E-inclusion and public libraries: A literature review. In B. Mehra (Ed.), Social Justice, Social Inclusion [2014 special issue]. Qualitative and Quantitative Meth- ods in Libraries Journal, 111–127. Retrieved from http:// www.qqml.net/papers/Special_Is sue_2014_Social_Justice_Social_Inclusion/QQML_Journal_2014_SpecialIssue_111-127 _Hechavarria.pdf Henderson, C. (1988). Social justice: A public library controversy. Australasian Public Libraries and Information Services, 1(2), 104–109. Hernon, P., & Whitman, J. (2001). Delivering satisfaction and service quality: A customer-based approach for libraries. Chicago: American Library Association. Hill, H. (2011). Ontario public libraries, accessibility, and justice: A capability approach. Canadian Journal of Information and Library Science, 35(4), 423–435. Holt, L., & Holt, G. (2010). Public library services for the poor: Doing all we can. Chicago: Ameri- can Library Association. Jimerson, R. (2007). Archives for all: Professional responsibility and social justice. American Archivist, 70(2), 252–281. Kamtekar, R. (2001). Social justice and happiness in the Republic: Plato’s two principles. History of Political Thought, 22(2), 189–220. Retrieved from http:// www.u.arizona.edu/~kamtekar /papers/ppj.pdf Khader, S. (2011). Adaptive preferences and women’s empowerment. Oxford, UK: Oxford Univer- sity Press. Koerber, J. (2014). The public library as publisher. Library Journal. Retrieved from http:// lj .libraryjournal.com/2014/03/publishing/the-public-library-as-publisher Kranich, N. (2001). Libraries: Ensuring information equity in the digital age. American Li- braries, 32(1). Retrieved from http:// www.ala.org/aboutala/governance/officers/past /kranich/almcolumns#jan Lamont, J., & Favor, C. (2013). Distributive justice. Stanford encyclopedia of philosophy. Retrieved from http:// plato.stanford.edu/entries/justice-distributive Lievrouw, L., & Farb, S. (2003). Information and equity. Annual Review of Information Science and Technology (ARIST), 37, 499–540. Longstaff, R. (2011). Social justice across the curriculum: Librarians as campus leaders. Catholic Library World, 81(4), 285–289. Mathiesen, K. (2014). Facets of access: A conceptual and standard threats analysis. iConference Proceedings. Retrieved from http:// hdl.handle.net/2142/47410 Mathiesen, K. (in press). Human rights as a subject and guide for LIS research and practice. Journal of the Association for Information Science and Technology. Mathiesen, K., & Fallis, D. (2008). Information ethics and the library profession. In K. E. Himma & H. T. Tavani (Eds.), The handbook of information and computer ethics (pp. 221–244). Hoboken, NJ: Wiley. McMenemy, D. (2012). Public libraries and social justice. Library Review, 61(2), 163–165. Mehra, B., Albright, K., & Rioux, K. (2006). A practical framework for social justice research in the information professions. Proceedings of the American Society for Information Science and Technology, 43(1), 1–10. Mehra, B., Rioux, K., & Albright, K. (2010). Social justice in library and information science. Encyclopedia of library and information sciences (3rd ed., pp. 4820–4836). New York: Taylor & Francis. Miller, D. (1999). Principles of social justice. Cambridge, MA: Harvard University Press. Montiel-Overall, P. (2009). Cultural competence: A conceptual framework for library and information science professionals. Library Quarterly, 79(2), 175–204. Montiel-Overall, P., & Littletree, S. (2010). Knowledge River: A case study of a library and information science program focusing on Latino and Native American perspectives. Library Trends, 59(1–2), 67–87. Morales, M., Knowles, E., & Bourg, C. (2014). Diversity, social justice, and the future of librar- ies. portal: Libraries and the Academy, 14(3), 439–451. Murithi, T. (2006). Practical peacemaking wisdom from Africa: Reflections on Ubuntu. Journal of Pan African Studies, 1(4), 25–34. Naidoo, J. (2014). The importance of diversity in library programs and material collections for children. [Association for Library Service to Children white paper]. Retrieved from http:// www .ala.org/alsc/sites/ala.org.alsc/files/content/ALSCwhitepaper_importance%20of%20 diversity_with%20graphics_FINAL.pdf 224 library trends/fall 2015 Nielsen, K. (1979). Radical egalitarian justice: Justice as equality. Social Theory and Practice, 5(2), 209–226. Noddings, N. (2013). Caring: A relational approach to ethics and moral education. Berkeley: Uni- versity of California Press. Nozick, R. (1974). Anarchy, state, and utopia. Oxford, UK: Basil Blackwell. Nussbaum, M. (2003). Capabilities as fundamental entitlements: Sen and social justice. Feminist economics, 9(2–3), 33–59. Pateman, M., & Vincent, M. (2012). Public libraries and social justice. Burlington, VT: Ashgate. Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press. Ridella, S. (2014). The madwoman in the attic: Mental illness and the Americans with Dis- abilities Act Amendments Act of 2008. National Law Review. Retrieved from http:// www .natlawreview.com/article/madwoman-attic-mental-illness-and-americans-disabilities-act -amendments-act-2008 Rioux, K. (2010). Metatheory in library and information science: A nascent social justice ap- proach. Journal of Education for Library and Information Science, 51(1), 9–17. Rioux, K. (2014). Teaching social justice in an information literacy course: An action research case study. In B. Mehra (Ed.), Social Justice, Social Inclusion [2014 special issue]. Qualitative and Quantitative Methods in Libraries Journal, 23–30. Retrieved from http:// www.qqml.net/ papers/Special_Issue_2014_Social_Justice_Social_Inclusion/QQML_Journal_2014_Spe cialIssue_23-30_Rioux.pdf Rioux, K., Mehra, B., & Albright, K. (2007). Conceptualizing social justice in the information sciences. Proceedings of the American Society for Information Science and Technology, 44(1), 1–4. Samek, T. (2007). Librarianship and Human Rights: A 21st century guide. Atlanta, GA: Neal- Schuman. Sen, A. (1980). Equality of what? In S. McMurrin (Ed.), The Tanner lectures on human values: Vol. 1. 1980 (pp. 195–220). Cambridge, UK: Cambridge University Press. Shields, L. (2012). The prospects for sufficientarianism. Utilitas, 24(1), 101–117. Singh, V. (2014). Open source software use in libraries: Implications for social justice? In B. Mehra (Ed.), Social Justice, Social Inclusion [2014 special issue]. Qualitative and Quan- titative Methods in Libraries Journal, 49–57. Retrieved from http:// www.qqml.net/pa pers/Special_Issue_2014_Social_Justice_Social_Inclusion/QQML_Journal_2014_Special Issue_49-57_Singh.pdf Southwell, B., Hamilton, J., & Slater, J. (2011). Why addressing the poor and underinsured is vexing. Health Communication, 26(6), 583–585. Thompson, K., & Afzal, W. (2011). A look at information access through physical, intellectual, and socio-cultural lenses. OMNES: The Journal of Multicultural Society, 2(2), 22–42. Retrieved from http:// www.omnesjournal.org/upload/public/pdffile/13/1.pdf Underhill, K. (2006). Protocols for Native American archival materials. RBM: A Journal of Rare Books, Manuscripts and Cultural Heritage, 7(2), 134–145. Usherwood, B. (2011). [Review of the book Public libraries and social justice, by John Pateman and John Vincent]. Journal of Librarianship and Information Science, 43(2), 138–141. van den Hoven, J., & Rooksby, E. (2008). Distributive justice and the value of information: A (broadly) Rawlsian approach. In J. van den Hoven & J. Weckert (Eds.), Information tech- nology and moral philosophy (pp. 376–396). Cambridge, UK: Cambridge University Press. Velasquez, M., & Clair, A. (1990). Justice and fairness. Issues in Ethics, 3(2). Retrieved from http:// www.scu.edu/ethics/publications/iie/v3n2 Vincent, J. (2012). The role of public libraries in social justice. Prometheus, 30(3), 349–351. Wiegand, W. (1999). Tunnel vision and blind spots: What the past tells us about the present; reflections on the twentieth-century history of American librarianship. Library Quarterly, 69(1), 1–32. Williams-Cockfield, K. (2014). Building civic capacity using a holistic approach to public library service: A participant researcher’s perspective on social justice in the Cayman Islands public library service. In B. Mehra (Ed.), Social Justice, Social Inclusion [2014 special issue]. Qualita- tive and Quantitative Methods in Libraries Journal, 31–38. Retrieved from http:// www.qqml .net/papers/Special_Issue_2014_Social_Justice_Social_Inclusion/QQML_Journal_2014 _SpecialIssue_31-38_WilliamsCockfield.pdf Willoughby, W. W. (1900). Social justice. New York: Macmillan. Young, I. (2011). Justice and the politics of difference. Princeton, NJ: Princeton University Press. informational justice/mathiesen 225 Kay Mathiesen is an assistant professor in the School of Information Resources and Library Science at the University of Arizona. She earned her PhD in philosophy at the University of California, Irvine. Her primary research interests are political philoso- phy, information ethics, and digital culture, with an emphasis on human rights and global justice. She is cofounder of the Information Ethics Roundtable, which hosts a yearly interdisciplinary conference on themes in information ethics. Her articles have appeared in Ethics and Information Technology, Midwest Studies in Philosophy, Business Ethics Quarterly, Journal of Information Ethics, International Review of Information Ethics, and Journal of the Association for Information Science and Technology. 
work_rjhahzroyzaibngphvhv3w6olm	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221729125 Params is empty 221729125 exception Params is empty 2021/04/06-03:20:25 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221729125 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:25 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_rjjof4pdangrlhjjkze5lswb2e	----	OP-CLPR120018 59..82 Legitimacy and Justice in Republican Perspective Philip Pettit * Abstract: Let justice be a feature of the social order imposed by a state and legitimacy a feature of how it is imposed: one that makes the imposition acceptable. This article argues that, so understood, legitimacy is quite a distinct concern from justice; that the core concern is with showing how state coercion is consistent with people’s being free citizens; that this does not require showing that the state exists by consensus or contract; that the best hope of satisfying the concern lies with arguing that state coercion need not be dominating; and that this is possible only within the republican theory that identifies freedom with the absence of domination, not interference. Introduction Normative thinking about legal, political, and social institutions has been dominated over the past quarter century or more by the ideal of justice, in particular social or distributive justice. This focus on justice is unfortu- nate, because it has suggested that there is only one basic ideal that we need to think about in our normative projects. It is unfortunate, in par- ticular, because it puts out of the picture the very different sort of ideal to which I give the name of legitimacy—specifically, political legitimacy. In this article I offer an account of legitimacy that serves two purposes. First, it shows why the concern with legitimacy is distinct from the concern with justice. And secondly, it presents legitimacy as an ideal that is intel- lectually tractable and institutionally feasible and counts therefore, side by side with justice, as a deserving target of inquiry.1 * LS Rockefeller University Professor of Politics and Human Values, Princeton University and Distinguished Professor of Philosophy, Australian National University. ppettit@princeton.edu. Center for Human Values, Princeton University, Princeton, NJ 08540. 1 The article, which develops the text of the Inaugural Quain Lecture in Jurisprudence at University College, London in 2012, draws heavily on the ideas in Chapter 3 of my book On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012). I was enormously helped by the discussion of the lecture at a colloquium in University College, London. I am deeply indebted to John Tasioulas and George Letsas, my commentators, and to Jeff King, the editor, for their criticisms. Current Legal Problems, Vol. 65 (2012), pp. 59–82 doi:10.1093/clp/cus016 � The Author 2012. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ Terms like ‘legitimacy’ and indeed ‘justice’ are used with varying con- notations in ordinary language and in the language of normative discip- lines like jurisprudence and political philosophy. I do not mean to suggest that my usage in speaking of political legitimacy and social justice is in any way sacrosanct and I am happy if others choose different words to describe the two values I have in mind. My main interest is in arguing that however we describe them, the ideals are distinct and are deserving of distinct treatment. The two ideals are associated with different questions raised by the state’s imposition of a social order. The justice question is whether the co- ercively imposed order is acceptable or justifiable or desirable; the legitimacy question is whether the coercive imposition of the order is acceptable or justifiable or desirable. The questions each presuppose the necessity of the coercive state. The one question asks about the credentials of the social order imposed by the state, the other about the credentials of the way in which it is imposed—if you like, about the state’s right to impose it. The ideals are distinct because it is at least logically possible for a just social order to be imposed in an illegitimate manner and for an unjust order to be imposed in a legitimate fashion. In speaking of a social order, I have in mind the legally implemented arrangements that determine people’s rights and obligations in relation to one another and the limits that these may imply for the privileges and powers that people can individually command. I do not include the ar- rangements under which citizens have rights and obligations in relation to government: rights such as the right to vote or stand for office, obligations such as those of paying their taxes and making themselves available for jury service. An order will be socially just insofar as it regulates people’s horizontal relations with one another in a suitable manner, treating them as equals. And an order will be politically legitimate just insofar as it regulates their vertical relations with the state or collectivity in a suitable way, giving them an equal status in relation to the power under which they live. This notion of a social order is distinct from John Rawls’s idea of a basic structure, since that structure is meant to determine vertical as well as horizontal rights and obligations.2 Correspondingly, the ideal of a just social order is distinct from Rawls’s ideal of a just basic structure. Whereas my notion of justice is entirely social or horizontal in its compass, his is an ideal of social-cum-procedural justice, as we might call it. My reason for restricting the idea of a social order, and for casting the ideal of justice as 2 J Rawls, A Theory of Justice (OUP 1971). 60 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ social rather than social-cum-procedural, is to underline the contrast with the ideal of legitimacy. Inflating the ideal of justice makes it all too easy to lose sight of the distinction and, in effect, to fail to register the importance of legitimacy. My discussion in the article falls into three sections. In the first Section I explore the significance of our recognizing that the regime under which we live is just or unjust, on the one hand, legitimate or illegitimate, on the other; if there were no difference between the action-guiding implications of the two issues, the distinction between the ideals would be seriously in question. In the second Section I argue that the problem of legitimacy is an issue about how far state coercion is consistent with the freedom of citizens and that on the republican understanding of freedom as non-domination this begins to look, at least in principle, like a soluble issue. And then in the final section I provide an outline of the institutions that might serve in practice to establish the legitimacy of a state. These have a decidedly democratic cast so that the bottom line is that while democracy may not be strictly necessary for justice—or at least for dis- tributive justice—it is certainly necessary for legitimacy. The Significance of the Justice and Legitimacy Issues What turns on whether a state is legitimate or not? What implications does its legitimacy have for how the citizens of the state ought to behave? And in what way do they differ from the implications of justice? As I understand the two ideals, they each impose a different set of moral obligations on citizens. The obligations imposed are pro tanto obligations that may not apply in special, emergency circumstances, as when the life of an innocent party is at stake. But they are none the less important for that.3 Suppose that the social order imposed by a state is just and that the state itself, by whatever criteria, is legitimate. In that case we will naturally say that in view of its legitimacy people are morally obliged to accept the regime, in some sense of acceptance, and that in view of its justice they are obliged to endorse and comply with the laws. But what does it mean to 3 That the reasons are pro tanto in character means that they can be overridden by countervailing considerations when alarms ring and alert you to the unusual character of a situation. But it is consistent with the reasons functioning under normal conditions—that is, in the absence of alarms—in an exclusionary manner that precludes the weighing of pros and cons. See J Raz, The Morality of Freedom (OUP 1986). 61Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ accept a regime? And how does such acceptance come apart, if at all, from endorsing and complying with its laws? The answer appears once we consider a case where the regime con- tinues to count as legitimate but certain of its laws are unjust. The injustice of those laws will mean that people are not subject to the same content-dependent obligation to endorse and comply with them, although they will certainly be subject to a fall-back, pro tanto obligation that applies in all half-reasonable systems of laws, just and unjust. This is the content-independent obligation to comply that derives from the fact that once social regularities are established by law people generally co- ordinate their activities around the expectation of mutual compliance.4 But the injustice of certain laws will also mean, plausibly, that people are morally permitted, perhaps even obliged, to try to change those laws. That raises the question as to what is allowed to people in their attempts to change unjust laws. And it is here that legitimacy, and the acceptance that I have associated with legitimacy, are relevant. The acceptance of the regime means, I propose, that attempts to change unjust laws should be restricted to measures that are consistent with the regime’s remaining in place; they should not include extra-constitutional measures of inducing regime change. Acceptance requires you to acknowledge the state as the appropriate arbiter and de- cider of legal issues, rather than resisting it outright, and to campaign for change on the assumption that the state is to retain that role. Legitimacy imposes a pro tanto moral obligation, then, if you oppose certain laws or measures related to the laws, to oppose them in ways consistent with the system’s surviving: to stop short of revolution or rebellion or, in an older word, resistance. It makes it permissible, invoking justice or some other virtue, to oppose certain laws within the system: in a word, to contest them. But it makes it impermissible to reject or resist the regime itself. Most regimes will offer some ways of opposing its laws that are clearly within the system: appealing to the legislature, taking the government to court, speaking out in the media, demonstrating in the streets and, of course, challenging the governing party at election time. But the act of breaking the law—notwithstanding coordination-based reasons to com- ply—may also count as a mode of contestation, a way of opposing laws within the system.5 This is exemplified in campaigns of civil disobedience 4 See Raz ibid. 5 The fewer the means of opposing a regime within the system, of course, the less likely it is that the regime will count as legitimate: that is, the more likely it is that there are going to be some unjust laws such that the available ways of opposing them within the system are so few that people are no longer obliged to confine themselves to such opposition. But the 62 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ where, for example, campaigners break the laws—perhaps the laws they oppose, perhaps other laws—in order to display opposition. When brought before the courts, campaigners typically acknowledge the authority of the courts to penalize them, thereby displaying their accept- ance of the regime itself and disavowing revolution or resistance. They invoke their willingness to accept the authorized penalty for whatever abuse they have committed to draw attention to the injustice of those laws.6 The legitimacy-based requirement of opposing unjust laws only within the system is not just of relevance in exceptional cases. In almost any conceivable regime people will have different conceptions of justice so that they will face the problem as to how they should respond to a social order that they take, on one or another ground, to be unjust in this or that manner.7 It is of decisive importance therefore to determine whether legitimacy rules, since it will have implications for how citizens should behave under conditions that almost everyone is going to face in almost every social context. The legitimacy of a social order is often thought to correlate with the political obligation of citizens. Such political obligation, on the proposal I am making, is not the pro tanto obligation to obey the laws but the pro tanto conditional obligation, if you oppose the laws, to oppose them within the system. This conception of political obligation is inde- pendently plausible, since political obligation is traditionally taken to bind people insofar as they are citizens proper, not merely temporary or transient inhabitants. Even those passing through a society have a pro tanto obligation to obey the law; like others, they will have a content-dependent obligation to obey just laws, and may have a content-independent obligation to obey any law, just or unjust. But only citizens are likely to have substantive rights to oppose the law within the system and only they can be meaningfully bound to limit their opposition to intra-systemic contestation. This comment squares with a broad conception of citizenship under which adult, able-minded, more or less permanent residents count as citizens, not just those with the right to vote and stand for office. While not all citizens in my broad sense will have electoral rights, they availability of civil disobedience means, at least in theory, that there is always at least one way in which a regime can be opposed within the system. 6 For a broadly congenial—purportedly ‘republican’—account of the sort of civil dis- obedience that might be warranted see D Markovits, ‘Democratic Disobedience’ (2005) 114 Yale Law Journal 1897–952. 7 See T Nagel, ‘Moral Conflict and Political Legitimacy’ (1987) 16 Philosophy and Public Affairs 215–40. 63Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ will all have formal and informal rights to oppose the law of a kind not readily given to those merely passing through. And in effect most will have the right to seek electoral rights—and to expect to gain them—by applying for formal citizenship. They will be in a position akin to those enfranchised citizens who choose not to enrol on the voting lists, or not to take part in voting, and who thereby deny themselves the opportunity to exercise their electoral rights. The discussion so far speaks as if it is only the state, or the social order it imposes, that counts as illegitimate. But this is for convenience only. When a state or regime is illegitimate then the laws it upholds are indi- vidually illegitimate and the branches of government that run the state are illegitimate too: they are tainted by the illegitimate routines of appoint- ment employed. But there is also room for claiming in the same sense of the term that while a regime is generally legitimate, certain laws or appointments—including the appointment of an executive or other branch—are illegitimate: they happen to breach conditions of legitimacy that the regime generally respects. While I shall continue to concentrate on the legitimacy or illegitimacy of regimes, I do not mean to deny that there is room for invoking the concept in more local complaints as well. Is it appropriate, however, to treat the legitimacy of a regime as an on–off matter, as in effect I have been doing? I believe that the factors that make for political legitimacy, like the factors that make for social justice, come in different degrees. But I assume that in each case we can set reasonable thresholds such that at or above those boundaries regimes are just or legitimate, in an on–off sense, while below them they are unjust or illegitimate. I said earlier that while the justice of the laws gives people a content dependent if pro tanto reason to conform, there will often be a content-independent reason to conform to any reasonable system of laws, just or unjust: viz, that they serve as coordinating devices around which people build mutual expectations. Given that the laws of a legit- imate regime may not themselves be legitimate, and given in particular that the regime itself may fall short of legitimacy, it is natural to ask whether there is any corresponding fall-back reason why people should still not resist the regime: any reason why they should restrict themselves to opposing it within the system. The issue is not central to our concerns but, for the record, I think that there may be a very good reason—and not just a reason of personal prudence—to stop short of resistance to a certain sort of illegitimate regime, especially since resistance involves risks of violence and chaos. This is that however illegitimate it may be, the regime may still be capable 64 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ of being made legitimate by being treated as if it were legitimate: that is, by being opposed only within the system. Without being fully legitimate, the system may in that sense be legitimizable. And legitimizability can plausibly count as a fall-back reason to avoid outright resistance and oppose a state only from within the system. It is time to take stock. Justice is an ideal for the social order imposed by a state, legitimacy is an ideal for how the social order should be imposed. That a social order is just gives citizens a special, content-dependent reason for obeying the laws imposed. That a social order is legitimate— that the state imposes it legitimately—gives them a special reason to accept the regime. The difference between obeying the laws and accepting the regime comes out in the case where citizens judge that the social order imposed is unjust in various ways but recognize that none- theless it is legitimate. The legitimacy requires citizens to oppose the laws they take to be unjust, if indeed they choose to oppose them, only within the system; it requires them to explore only the avenues that the system leaves open, where those avenues include, at the limit, civil disobedience. Keeping the Legitimacy Issue Alive A Short History of Legitimacy The reason why there is an issue about the justice of any social order is that that order may assume any of a variety of forms and different individuals may take different views about the merits and demerits of those vari- ations, particularly from the point of view of how they and their kind fare under the arrangement. The reason why there is an issue about the legit- imacy with which a social order is imposed is of a different kind. It derives from the fact that every state that imposes a social order does so coercively and, on the face of it, coercion means that the state deprives its citizens of their liberty. The state enforces taxation, imposes its laws on pain of penalty, and submits citizens to punishment—perhaps even capital pun- ishment—if they fail to obey those laws. The problem of legitimacy is how to reconcile such political submis- sion with personal freedom, identifying a sort of regime that can coerce citizens without depriving them of their freedom. The question, in Rousseau’s words, is how ‘a man can be both free and forced to conform to wills which are not his own’.8 Or as Frank Michelman puts it, 8 JJ Rousseau, Rousseau: ’The Social Contract’ and Other Later Political Writings (Victor Gourevitch tr, CUP 1997). The sentence is from The Social Contract, IV.2.7. 65Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ ‘How might a person be self-governing through institutional enactment of a law to which he is opposed?’.9 So understood, the problem of legitimacy lay at the centre of concern in the tradition of associating freedom with the status of citizenship that goes back at least to the Roman republic where, as one writer puts it, ‘full libertas is coterminous with civitas’.10 In this republican tradition, as it has come to be known, the private power of others—their dominium—may be inimical to the freedom of individual citizens but for all citizens the common and perhaps more salient danger to their freedom is the imper- ium or public power of the state.11 If freedom requires civic status, then it is important to explain why it is not compromised by the submission to coercive law that is part and parcel of civic status. The Romans had developed institutions in which power was held in the hands of no single individual or corporate body and the common people had an important policy-making part, electoral and contestatory, under the arrangements. Polybius, who first articulated the republican philosophy that became forever associated with Rome, argued that this mixed constitution, as he called it, was what guarded Romans against the danger of public imperium, ensuring that their citizenship really gave them freedom.12 Whatever of the merits of the response—we will touch on that later—the tradition gave an important and distinctive place to the problem of legitimacy. And both the problem and the re- sponse—although this was interpreted in various ways—became a hall- mark of the republican tradition, as that was revived in the Renaissance period, in the 17th-century England, and more generally in the 18th century English-speaking world.13 In all of those periods, those who identified with the tradition held that the mixed constitution, which was differently interpreted in different places, is essential to ensuring that people are not publicly dominated by the state they live under: the state that ideally serves to protect them against private domination. But while the legitimacy problem remained at the centre of republican concerns, it assumed a different character amongst rival traditions of thought in the 17th and 18th centuries.14 Thus, following the lead of 9 FI Michelman, Brennan on Democracy (Princeton University Press 1999) 23. 10 C Wirszubski, Libertas as a Political Ideal at Rome (OUP 1968) 3. 11 See B Kriegel, The State and the Rule of Law (Princeton University Press 1995) and P Pettit, Republicanism: A Theory of Freedom and Government (OUP 1997) ch 1. 12 Polybius, The Histories (Harvard University Press 1954) Book 6. 13 On the history of the tradition see JGA Pocock, The Machiavellian Moment: Florentine Political Theory and the Atlantic Republican Tradition (Princeton University Press 1975) and Q Skinner, Liberty Before Liberalism (CUP 1998). 14 See Rousseau (n 8). 66 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ absolutists like Jean Bodin and Thomas Hobbes, Jean Jacques Rousseau accepted that the mixed constitution is an unworkable mode of organiz- ing a state. Yet unlike those absolutists he retained a deep interest in the problem of legitimacy that any coercive state would raise; to that extent he remained faithful to the republican tradition. And so he had to find a different way of explaining why state coercion, or at least the coercion of his favoured form of popular state, need not be inimical to freedom. His argument, built on precedents in Hobbes and Locke, was that state coercion is capable of being legitimate if and only if the citizens unani- mously vote to submit themselves to the rule of the state: in the popular model that he endorsed, submit themselves to the rule of the majority in a general assembly of citizens. Rousseau’s idea, quite famously, is that assuming that the majority in the assembly focus only on general laws, not on measures involving particular individuals, and assuming that they think of the common good in exercising their votes, not of the interests of their particular kind, then the will supported by the unanimously endorsed assembly must count as a general will in which all have an equal share. And to the extent that people are governed by the general will, so he maintained, they are subject to a will that is a part of them- selves—side by side with their particular will—so that government cannot be said to deprive them of their freedom. However ingenious Rousseau’s argument is, it does not offer any real- istic chance of securing the legitimacy of a state. No states are unani- mously endorsed, rule on the basis of a committee of the whole, or satisfy the conditions that might transform the majority will into a general will. And certainly none satisfy all three conditions at once. The constraints of Rousseauvian legitimacy are over-demanding and infeasible. The prob- lem of infeasibility led Immanuel Kant, who had otherwise been deeply influenced by Rousseau, to amend the position in a way that sidelines the issue of legitimacy altogether. It is his lead, in effect, that Rawls and other contractualists follow in concentrating on the ideal of social justice and not displaying the same concern with legitimacy. Kant begins from the thought that the will imposed in the enactment of law—and so the will that sustains the social order created by law— should be ‘the general (united) will of the people’: the will associated with the ‘original contract’.15 This looks favourable to the Rousseauvian ap- proach from which Kant begins. But the appearance is misleading, for he insists that the original contract is ‘only an idea of reason’, not something ‘presupposed as a fact’, and argues not that the state should actually be 15 I Kant, Practical Philosophy (MJ Gregor tr, CUP 1996) 295 and 480. 67Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ grounded in such a will but that ‘every legislator’—in effect every state— should establish laws that ‘could have arisen from the united will of a whole people’.16 That the laws could have arisen in that way is ‘the touchstone of any public law’s conformity to right’, he says; ‘a rational principle for appraising any public rightful constitution’.17 With this shift, the issue of the legitimacy of a social order, on which Rousseau was primarily focused, is put aside in favour of the issue of the nature or quality of that social order. The fact that the laws could have been chosen in an original contract—their contractual eligibility—is now a sign of their having a certain intrinsic character, not an indication of their being sustained in a legitimate manner. It may not be surprising, then, that Kant shows scant regard for questions of legitimacy. While he favours a representative regime in which there is a separation of powers— a republic, as he calls it—he holds that even if a government should ‘proceed quite violently (tyrannically), a subject is still not permitted any resistance by way of counteracting force’.18 No established state can be illegitimate in our sense, then, since this ‘prohibition’ against ‘resistance to the supreme legislative power’ is ‘unconditional’: it applies even under the most appalling regimes. No contemporary theories follow Kant in prohibiting resistance to any established regimes but many take his lead in making some version of contractual eligibility the criterion of whether a social order ought to be accepted, thereby downplaying the distinctness of the legitimacy concern. John Rawls does this in arguing that his two principles would have been chosen in an original position of contract where people operate under a veil of ignorance as to their own particular prospects in this or that social order.19 And he remains faithful to that same, broadly Kantian approach when he later replaces the test of contractual eligibility under a veil of ignorance with a looser, associated test of civic justifiability: the justifi- ability of a legal order, on the basis of reasons that ought to be publicly acceptable, to the citizens who live under it.20 A concern with justifiability in this sense is a concern that that order should have a certain intrinsic character—in particular that it should be comprehensively just—and is 16 ibid 296. 17 ibid 297, 301. 18 ibid 298. 19 Rawls, A Theory of Justice (n 2). 20 J Rawls, Political Liberalism (Columbia University Press 1993); and J Rawls, Justice as Fairness: A Restatement (Harvard University Press 2001). The approach that Rawls exem- plifies in this later turn is shared loosely among a large range of contemporary political and moral thinkers. 68 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ distinct from the concern for whether it is appropriately supported that we find in Rousseau. In fairness to Rawls and those who follow him, however, it is worth emphasizing that he is concerned with the justice, not only of a social order in our sense, but of a social-and-procedural order that encompasses constraints on how government should be controlled as well as con- straints on how citizens should fare under the social order imposed by government. Thus the liberties that he wants to acknowledge under this order include not just the usual basic liberties of expression, association, and so on but also the political liberties of voting and standing for office. But in his encompassing theory of justice Rawls does not give these pro- cedural constraints anything like the force that we would expect in some- one focused on the issue of legitimacy. Indeed, he explicitly says at one point that they are ‘subordinate to the other freedoms’.21 The Kantian elision of the problem of legitimacy may explain this near-exclusive focus on justice, albeit social-cum-procedural rather than just social justice. While the elision has been clearly registered by AJ Simmons, his response is to say that since legitimacy appears to require consent—this, on the model accepted by Rousseau—it is bound to be unavailable with any real-world states.22 Thus we are invited to embrace a sort of political anarchism, accepting that no contemporary states, how- ever just they may be, are going to count as legitimate. Can we do better than just neglecting or downplaying the issue of legitimacy, or abandoning all hope of having any state achieve legitimacy? One response that appears in the contemporary literature is to argue that while we have to accept that no coercive state is consistent with the de- mands of freedom, we can set a different bar—and a bar that falls short of outright justice—for when a state is to count as legitimate. Thus various contemporary authors argue that despite taking away people’s freedom, a state can claim the authority that goes with legitimacy on distinct grounds. Perhaps the state is successful in epistemic terms, letting people reliably identify the requirements of justice without subjecting them to the rule of others.23 Or perhaps it enables them to live together 21 Rawls, A Theory of Justice (n 2) 233. 22 AJ Simmons, ‘Tacit Consent and Political Obligation’ (1976) 5(3) Philosophy and Public Affairs 274–91; AJ Simmons, Moral Principles and Political Obligations (Princeton University Press 1979); AJ Simmons, ‘Justification and Legitimacy’ (1999) 109 Ethics 739–71. 23 See D Estlund, Democratic Authority:: A Philosophical Framework (Princeton University Press 2007). 69Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ without civil war, as a pragmatic justification might suggest.24 Perhaps it is the only sort of state that coheres well with an assertion of the funda- mental equality of human beings.25 Perhaps, to invoke a broadly Confucian approach, it puts people of virtue and talent in power; it is distinctively meritocratic.26 Or perhaps, as Ronald Dworkin has recently argued, it manifestly strives to promote social and procedural justice, ‘recognizing that the fate of each citizen is of equal importance and that each has a responsibility to create his own life’.27 Such theories have to count as second-best theories of legitimacy. In one way or another, they all hold that the threshold at which it becomes permissible to resist a state appears at a lower level than that at which it establishes a just order. It is set at a level where the state achieves a capacity to ensure justice better than rivals, or realizes a precondition of any system of justice, or ensures a minimum level of justice, or displays a will to pursue justice, or the like. It is certainly a good idea to set the trigger for justifying resistance at a level lower than justice, since no social order will count as just by the lights of all citizens. But no such trigger is likely to seem relevant, if it is possible to identify a threshold at which the coercive state may fail to be just without its coercion jeopardizing the freedom of its citizens. Why should people accept a freedom-denying state, whatever its other merits, when there is an alternative available that can play the role of common arbiter and decider without compromising their freedom? Thus we are returned to the freedom-centred version of the legitimacy issue. How can the citizens of a state be free and yet be subject to state coercion? We should have recourse to one of these other theories only in the event of not being able to identify a feasible, freedom-based account of legitimacy. Legitimacy and Freedom One of the reasons why the legitimacy issue may generally be ignored in the contemporary literature, at least as an issue about freedom, is that the conception of freedom that has been dominant since the late 18th century casts it as non-interference and under that conception it is hard to see how 24 See B Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton University Press 2005). 25 See A Buchanan, ‘Political Legitimacy and Democracy’ (2002) 112 Ethics 689–719. 26 D Bell, China’s New Confucianism: Politics and Everyday Life in a Changing Society (Princeton University Press 2010). 27 R Dworkin, Justice for Hedgehogs (Harvard University Press 2011) 321–22. 70 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ state coercion could cohere with freedom.28 Interfering with a choice, on a generous interpretation, may involve intentionally replacing an option, removing an option, or misrepresenting any of the options by which the choice is defined.29 Under that account, all laws take away from the freedom of subjects in at least some of their independently available choices. The point was emphasized, almost with relish, by Bentham himself. ‘As against the coercion applicable by individual to individual, no liberty can be given to one man but in proportion as it is taken from another. All coercive laws, therefore . . . and in particular all laws creative of liberty, are, as far as they go, abrogative of liberty’.30 This means that under the conception of freedom as non-interference, there is no way in which the subjects of the law can enjoy full freedom of choice. They will be subject to state interference, and so to a loss of freedom, insofar as the state decides what laws to put in place; enforces those laws with the threat of penalty; imposes penalties on those who offend; and taxes its subjects with a view to maintaining the system. It is true, of course, that in a well-run society the interference that the state perpetrates in imposing laws and taxes and penalties may be less, by whatever measure is taken to be appropriate, than the interference that the state prevents. But even in that ideal event, it will remain the case that the state does indeed perpetrate interference and that in doing so it fails to preserve the freedom of citizens in their dealings with it; they are subject to its will in a way that takes from their freedom under this conception. Thus Isaiah Berlin writes, in elaboration of what he takes to be a lesson from Bentham: ‘Law is always a fetter, even if it protects you from being bound in chains that are heavier than those of the law, say some more repressive law or custom, or arbitrary despotism or chaos’.31 But while the conception of freedom as non-interference makes it impossible to argue on grounds of freedom for the legitimacy of any likely state, the republican conception of freedom that it replaced does not make this impossible in the same manner. Indeed it is for that reason, I surmise, that legitimacy was taken in the republican tradition to be something that could be institutionally secured in a state: specifically, 28 See Pettit Republicanism (n 11) and Skinner Liberty before Liberalism (n 13). While Bentham’s and his associates were mainly responsible for popularizing the idea of freedom as non-interference, that idea had been adumbrated by Hobbes. See Q Skinner, Hobbes and Republican Liberty (CUP 2008); and P Pettit, ‘Freedom in Hobbes’s Ontology and Semantics: A Comment on Quentin Skinner’ (2012) 73 Journal of the History of Ideas. 29 See Pettit, On the People’s Terms (n 1) ch 1. 30 J Bentham, The Works of Jeremy Bentham (William Tait 1843) 503. 31 I Berlin, Four Essays on Liberty (OUP 1969) 3. 71Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ secured by the fact of the state’s operating under the constraints imposed by a mixed constitution. On the republican conception, freedom is a matter of enjoying a suit- able civic status. Spelled out in greater detail, it requires, first, a freedom in the exercise of certain choices; second, a freedom in the exercise of those choices that is secured on a certain basis; and third, a freedom that is understood in a distinctive manner, requiring non-domination rather than non-interference. Taking up the first of these three conditions, the choices in which freedom is required are what John Libourne in the 17th century described as ‘the fundamental liberties’: the choices, as I conceive of them, that all citizens can exercise and enjoy at one and the same time.32 These do not include choices requiring impossible abilities, as in the choice between walking on water and walking on solid ground. Nor choices in which people are in essential competition, as in the choice between winning or not winning superiority over others. Nor choices involving victims, as in the choice between attacking another or not. They are fundamentally compossible choices that may be simultaneously exercised by all and, at the same time, enjoyed by all. They may be compossible by nature, as with the choice between speaking your mind and not speaking your mind. Or they may be compossible by virtue of institutional design, as with the choice between appropriating or not appropriating something under local rules of property. Turning now to the second of our three conditions, the basis on which the fundamental or basic liberties have to be secured for civic freedom in the republican sense is a basis in public law. As a matter of shared aware- ness amongst the citizenry, it has to be the case that the free person—the liber in early Latin usage, the ‘freeman’ in 17th-century English—is pro- tected, perhaps even in some ways resourced, in the exercise of relevant choices by a law that is promulgated in public and applied equally in defence of all. It is this public entrenchment of freedom that enables free persons, in the age-old republican picture, to be able to look one another in the eye, without fear or deference: to escape not just servitude but also servility.33 Indeed the natural criterion for what constitutes adequate entrenchment is that it is enough, by local cultural standards, to give this capacity to all citizens, or at least to those who are not excessively 32 See J Libourne, The Legal Fundamental Liberties of the People of England, asserted, revived, and vindicated (London, 1646). For an elaboration of the fundamental or basic liberties, understood in this way, see Pettit, On the People’s Terms (n 1) ch 2. 33 See Q Skinner, ‘Freedom as the Absence of Arbitrary Power’ in J Maynor and C Laborde (eds), Republicanism and Political Theory (Blackwell 2008). 72 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ timid or paranoid. In the ‘free Commonwealth’ or republic, as John Milton wrote, ‘they who are greatest . . . are not elevated above their brethren; live soberly in their families, walk the streets as other men, may be spoken to freely, familiarly, friendly, without adoration’.34 We have seen that republican freedom requires freedom in the choices associated with the basic liberties and that this must be secured on the basis of public law. Turning finally to our third condition, it also equates freedom in a choice with the absence of domination, not interference. On this conception, freedom requires people not to be subject to the will of others rather than requiring, as Bentham required, that they not be sub- ject to the interference of others. Freedom, as Algernon Sidney put it in the 17th century, consists in ‘independency upon the will of another’. ‘Liberty’, in an 18th-century variant, ‘is, to live upon one’s own terms; slavery is, to live at the mere mercy of another’.35 The difference between the two conceptions comes out in a difference on two fronts between the implications that they support. It is possible to be subject to the will of another in a certain choice—it is possible to have to depend on the will of the other as to what you should choose there— without that other exercising any active interference. The classical example of such a possibility arises with the slaves who are lucky enough to have an indulgent master who gives them a great deal of latitude in the choices they may make for themselves. Even if the master allows the slaves to exercise the basic liberties of the society as they wish, still they are subject to the master’s will; they have to depend on the state of the master’s will remaining favour- able if they are to be able to choose as they wish. The slaves may not suffer interference but still, on the conception of freedom as non-domination, they lack freedom. They are not their own men or women. The second difference of implication between the rival conceptions of freedom appears in the possibility, not of domination without interfer- ence, but of interference without domination. You are subject to the interference of another in your choices, even if there is an arrangement in place, perhaps set up by you, perhaps set up by a third party, under which you can control that interference; say, you can stop that interfer- ence at will or allow it to continue only on terms that you endorse. Suppose you hire someone to make certain of your decisions for you— say, your financial or social or even religious decisions—or suppose that you inherit such an arrangement from your family. The person hired may 34 J Milton, Complete Prose Works of John Milton, vols 1–8 (Yale University Press 1953–82) 424–25. 35 A Sidney, Discourses Concerning Government (Liberty Classics 1990) 17; J Trenchard and T Gordon, Cato’s Letters, vol 2 (Da Capo 1971) 249–50. 73Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ not always choose as you would choose—may even choose in a way that frustrates your current wishes—but so long as you have to the power to suspend and shape the interference, you are not subject to their will. You do not depend on their will remaining a goodwill for being able to impose your wishes on the matters they currently administer for you. This should serve to introduce the republican view of the freedom that can go with civic status. We might describe the social order established by a state as just, in a republican rendering of the idea, insofar as it enables people to enjoy such a civic status in relation to one another. But it remains to show why we need not despair, on this view of freedom, about identifying institutional conditions under which the coercive state would not jeopardize the freedom of its citizens in imposing such an order and would count therefore as legitimate. Why does the legitim- acy problem become feasible under the conception of freedom as non-domination, when it is so obviously infeasible under the conception of freedom as non-interference? The answer, at the abstract level, is pretty straightforward. The second implication of this way of conceptualizing freedom is that interference in your choices need not be dominating and that when it is not dominating it does not impose another’s will and does not jeopardize your freedom. The coercive state, as we have seen, certainly interferes in the choices of its citizens. But this coercion or interference will not jeopardize the freedom of those citizens if they exercise an appropriately effective form of control over the interference. And so the prospect of a legitimate state is nothing more or less than that of a state in which citizens exercise a suitable type of control over the coercion that the state practices in their lives. The legit- imate state will be, in an etymological sense, the democratic state: the state in which the demos or people exercise a suitable form of kratos or control over those in power. This abstract answer points us in the direction that a satisfactory theory of legitimacy has to take and identifies the ideal of a legitimate state, understood in the republican way, as a form of democratic ideal. But these indications, reassuring as they may be, are worth little unless we can say more about the sort of control that citizens must be able to achieve over the workings of their polity. Without being able to go into much detail, I turn to a consideration of this challenge in the final section. The Institutional Requirements of Legitimacy In the case of the interference practiced by a hired hand, there are two capacities that give you a form of control and ensure that you are not 74 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ subject to the will of such an empowered agent. The first is that you can suspend the regime under which he or she has the right to interfere in certain of your choices and the other is that you can shape the interference that they practice. This observation raises two questions in the case of the coercive state. Is there anything in the relation between citizens and state that can answer to the suspension condition? And, assuming that there is something available to be said in response to that first question, can citizens exercise the sort of shaping of government interference that would guard them against domination? I discuss the questions in turn and provide a sketch of the answers that I find appealing.36 The sketch is meant to give some plausibility to the idea that when it is understood in a republican way, then legitimacy—even legitimacy understood in the de- manding sense it is given here—begins to look like a feasible and relevant ideal in politics. First Question The answer to the first question about the possibility of suspending the regime of state coercion is that there is certainly nothing possible that corresponds closely to the possibility of suspending the interference of a hired hand. The state does not give you or anyone else discretion over whether to live in political society rather than in a state of nature and, though it can and should allow you emigration, it cannot give you or anyone else the right to live in one state rather than another. And neither does it give you or any other citizen, no matter how virtuous and com- pliant, discretion over whether the laws are to be coercively enforced against you; uniform coercion—with or without certain variations—is the rule of the political game. We saw earlier that it is preposterous to think that people in the past may have freely chosen to enter a regime of state coercion, as Rousseau requires for legitimacy. It would be equally preposterous to think that people in any contemporary state might be able to suspend the role of state coercion in their lives, exercising an option of exit. We are born into a political world and we have no choice but to remain part of that political world. There is no state of nature that is available as an alternative. Does the necessity of living under state coercion mean that there is no prospect of state interference being less than dominating? Does it mean that the parallel with the hired hand does nothing to direct us to the possibility of a legitimate, freedom-consistent state? I argue that the 36 For an elaboration of the answers see Pettit, On the People’s Terms (n 1) chs 3–5. 75Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ disanalogy on this point, important though it is, does not undermine the lesson suggested and that we can keep alive the ideal of a non-dominating but coercive state. The reason is that it is not due to the domination of your state—or indeed the domination of any agency, individual or cor- porate—that you are subject to the necessity of living under coercive conditions. Rather it is due to inescapable constraints that do not impose an alien will but operate like the constraint that subjects you to gravity. It is true that neither you nor anyone else has a choice over whether to live under a state or in a natural condition; that neither you nor anyone else has an assured choice over whether to live in one state or another; and that if you live in a political society you do not have any choice over whether to comply with the law on a non-coercive basis: that is, without being exposed to penalty. But these constraints on your life raise an issue of legitimacy for the state, only if they are imposed by the state itself and represent subjection to an alien will. And it turns out that they are not imposed by your state—or indeed by any other state—in the manner of a decision to interfere rather than not interfere, as if that were a voluntary choice; they materialize on an independent, unwilled basis. It is not your state that makes political society unavoidable but the historical fact that our planet has been occupied entirely by states and that there is no remaining possibility of living in a stateless zone. It is not your state, or not necessarily your state, that stops you from living elsewhere but the political fact that as a condition of survival—and not for example as a means of dominating you—other states have to put limits on entry by outsiders. And it is not your state that decides that everyone should be coerced to obey the law. By all accounts coercion will be necessary to induce some people to comply, or to assure others of their compliance. And if your state coerces any citizens to obey the law then, by a functional necessity, it has to coerce all citizens: no state could hope to survive—and indeed no state could treat its members as equals—if it tried to enforce a distinction between coerced and un-coerced citizens.37 As the force of gravity establishes the conditions under which you have to make your life, but does not subject you to an alien will, so the same is 37 What is true, of course, is that if your state dissolved itself, then it would not be responsible for your living in political society, in this society rather than that, and under a regime of universal coercion; the state or states that took over the territory it vacated would then be responsible on those fronts. But this is scarcely a ground for complaint against your actual state. The fact that other states are poised to assume control of the territory in which you live, and therefore represent active threats of domination, means that you would have a reasonable complaint if your state did dissolve itself; the state’s dissolution would amount to its giving up its role as a protector against such domination. 76 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ true of the historical, political, and functional constraints rehearsed in these comments. The state does not reduce your freedom as non-domination just by virtue of existing and operating in a manner that those constraints make inescapable. It would dominate you only if it had a choice in the matter of whether to let you live outside political society, or live in another state, or live under purely voluntary submission to the law. You may long for a world that is free of coercive states and lament the developments of the last couple of thousand years. But a concern with escaping domination does not justify such a hankering. The upshot of these remarks is that despite the fact that you cannot suspend the dispensation under which you live a state-bound existence, you may still hope to enjoy interference without domination at the hands of the state. It is part of the human, historical condition that you have no choice but to live under state rule, so that does not in itself mean that you are dominated by the state. Whether you are dominated by the state will depend entirely on how far you can shape how the state behaves within the bounds where it has discretion. Second Question This takes us, then, to the second question. Can the citizens of a state exercise a suitable shaping influence—a suitable form of control—over the interference that any state is bound to practice? This is the interference that the state exercises in levying taxes, in imposing laws, and in exacting penalties. Whether or not government dominates you and your fellow citizens in the exercise of such interference will depend on whether or not it is suitably controlled in that exercise. But what might make for a suit- able form of citizen control? What might make for the sort of democracy that would ensure the legitimacy of the state? Whatever control you might hope to exercise over the interference of the state, you cannot expect to be able to exercise it independently of other citizens. For you are constrained by nature to live in the company of others and, by the nature of the states with which history has left us, to live under a collective form of coercion that applies as much to others as to yourself. Thus any form of control that might render state interference un-dominating has to be a multi-lateral form of control in which each participates. To yearn for unilateral control of state coercion would be to long for a world in which you did not have to live with fellow citizens. Or it would be to long for a world in which you were special and had claims to freedom unmatched by others. But any world without fellow citizens would be a world without a state. And any world in which you had 77Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ unilateral control would not provide for the freedom of all citizens, which is what legitimacy and justice require, on a republican version of the ideals. The control needed for making the state un-dominating must be a form of civic or popular control in which you participate with others, and if this gives you less than what unilateral control would pro- vide, that is not the result of domination on anyone’s part; it is a con- straint imposed by having to live with others, and in particular with others who have the same claims to freedom as you. What might make for a form of citizen control over the operations of a state that would render the state un-dominating and legitimate? I address that question briefly in the remainder of this section, looking first at what control involves and then identifying three conditions that would have to be satisfied by a system of civic control that gave legitimacy to the state. Control = Influence + Direction The notion of control involves two distinct elements, which I shall de- scribe as influence and direction. To influence a process is to make a difference in how the process proceeds.38 To influence a process in a way that gives it direction is to make a designed difference, a difference that answers to some preconceived or preferred pattern. Control requires influence but it also requires direction; it amounts to nothing more or less than directed influence. Control in that sense may be more or less effect- ive, of course, depending on how far the direction imposed on the process constrains the process: depending on far into the detail of the process the constraints run. Imagine the effect you will have on the traffic at a busy intersection if you play police officer and give hand signals in the usual manner, inviting the cars to ignore the lights. In all likelihood some cars will take their lead from your signals, others not; and among those that do not, some will try to drive quietly by, others protest with honking horns or exasperated gestures. You will certainly have an influence in such a case, making a difference to how the cars behave; you will probably create utter chaos. But will you have control? Not on the assumption that you wanted the cars to follow your signals, as they might follow the signals of a police officer. You might have made a difference to how the cars behave but not a 38 Although I do not spell this out in the text, I may exert influence in the intended sense if, while being in a position to do something and thereby to have a particular effect, E, I opt to do nothing; the effect in that case will be, typically, that E does not occur. 78 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ difference that imposes any desired direction or pattern—not a difference that serves any identifiable end or goal. What will be required in order for your influence to give direction to a process like the flow of cars in this example? The influence must give rise to a recognizable pattern in the process and that pattern must be one that you seek or are at least disposed to welcome. The influence, in other words, must control for the appearance of a desired pattern. There will be a range of ways in which you can vary your input to the process, since there are different hand-signals you can give. And for each of those inputs there will be a corresponding output: the traffic will alter in response to your signals. In the case where you take the police officer’s place at the intersection this condition will not be fulfilled: there will be a more or less random correlation between how you move your hands and how the cars adjust. Were a police officer to be in your place, however, then things would certainly be different. The officer’s hand-signals would reliably generate, now this sort of effect, now that; as we say, they would control for how the traffic moves. If the demos or people are to participate in exercising kratos or control over government, and if the control they share is to ensure that the coer- cive laws of government are not dominating—not the imposition of an alien will—then what they exercise must involve both influence and dir- ection. The people might have influence on government without this impressing any particular shape or pattern on the acts of government; it might be an influence as wayward and random in its effects as the influence of the weather. That the people had such an influence would not give us any reason to think that the laws and decrees passed by gov- ernment are passed on terms that they dictate, as the actions of a hired hand are performed on terms that you dictate. Three Conditions on Suitable Control In order for a system of civic control—a system of civic influence and direction—to establish the legitimacy of a state there are three conditions that it has to fulfil. It must be individualized, unconditioned, and efficacious. The system must be individualized in the sense of giving each citizen an equal share in this control. Did some individuals not have an equal share in exercising control over government, then they would be subject to a state that is not constrained to take account of them in the way in which it is constrained to take account of others. Such a limitation on their control over the state is different in kind from the common limitation that derives 79Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ from the necessity of sharing. It would expose the disadvantaged individ- uals in a way that it does not expose others to a power of interference on the part of the state. It would allow them to be dominated. What might it mean to share equally in the civic control of the people over the state? On the side of influence, it would mean having access to the same channels of influence as others, whether influence exercised in voting for government or in contesting what government does or plans to do. Contestation of this kind may be conducted individually or via public-interest groups and it may be formal or informal in character, involving the use of court or tribunal or parliament, or recourse to the media or the streets. Equal access to influence requires the provision of such electoral and contestatory rights for all and a restriction, of course, on the influence that may be wielded on the basis of great wealth or special connections. Equally shared control requires, not just equal access to the channels of influence on government, but also access to a system of influence that imposes an equally acceptable direction on what government does. In the republican tradition, this is taken to mean that the influence of the people pushes government towards the realization of the public good—in par- ticular, the public good as that is registered on all sides of the population. This raises a serious problem, which is to explain how such a recognized public good could emerge in a complex society of the kind in which most of us live. For present purposes, however, I must assume that there is some candidate available to fill the required slot, as indeed many philosophies of politics postulate. I have explored the topic at length elsewhere.39 Apart from being equally shared, any system of civic control that establishes the legitimacy of the state would have to satisfy two other conditions. The second condition is that the system should be uncondi- tioned in character and the third that it should be suitably efficacious. Assuming that the system imposes an equally acceptable direction on government, these conditions apply in the first place to the system of influence that it involves. The unconditioned requirement is that people have an influence on government that is not conditioned on the willing- ness of government, or of any third party, to play along. The efficacious requirement is that people have a sufficiently high degree of influence, and a sufficiently effective form of control, to guard them intuitively against the spectre of domination. Suppose that you exercise influence over me—directive influence, as we assume—but, without being aware of it, you do so only because I am 39 Pettit, On the People’s Terms (n 1). 80 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ happy to follow your instructions: I have enough goodwill to want to go along, in relevant domains, with anything that you propose. Or suppose that you enjoy influence over me but, again without being aware of it, you do so only because a third party forces me to follow your lead in relevant areas. Such a combination of influence and direction might constitute control in a certain limited sense. But the mediating influence would be too conditioned to count intuitively as enough for interpersonal control. In the first case, I would remain in control to the extent that I could change my will at any point and refuse to follow your lead. In the second case, the ultimate, interpersonal control would lie, not with you, but with the third party that forces me to accept your lead. The lesson for legitimacy is clear. If people are to exercise a form of control that is capable of establishing the legitimacy of the state, then the influence they enjoy must not be conditioned on the willingness of the state to play along. And equally it must not be conditioned on the will- ingness of a third party—an elite or army or foreign power—to force the state to submit to the directive influence of the citizenry. The citizens themselves must retain ultimate power, with the government being forced by fear of the people to submit to their demands. As the 18th-century republican, Richard Price, put it: the freedom of the people cannot depend on an ‘indulgence’ or an ‘accidental mildness’ on the part of the state.40 It must be grounded in their own shared power. Turning to our third condition, it should be clear that a system of equally accessible and unconditioned influence might fail to deny gov- ernment a dominating capacity, because of not being of a sufficiently intense degree: because of not being suitably effective or efficacious. It might not even be suitably efficacious if it reached the maximum level consistent with being equally accessible to all. So what level of directive influence is going to be required to make the system of control appropriate? Imagine that the party or personnel in government do not meet with your approval. What are you to think if they are manifestly appointed under a suitably efficacious form of popular influence and direction, in which you have an equal share? You can only think that it was just tough luck that that those appointed are not to your taste; it was not the work of a dominating will, as it would be for example under a colonial adminis- tration. Or imagine that the government passes legislation of which you disapprove: say, legislation requiring the construction of new prisons. What are you to think if it does so, again manifestly, under the equally 40 R Price, Political Writings (CUP 1991) 26. 81Legitimacy and Justice by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ shared, suitably efficacious control of the people? You can only think that it was just tough luck for you that the decision went that way; it was not the result of a will at work in the public sphere that you do not equally share in controlling. Or imagine, finally, that in implementing the legis- lation, the government decides to your dismay that one of the prisons should be located in your neighbourhood—in your back yard. What are you to think if it manifestly makes this decision under a suitably effica- cious form of control in which you and those in your area equally share? Again you can only think that it was just tough luck that the decision went against you; it was not due to the special influence of those who are richer or electorally better placed or closer to the corridors of power. These observations suggest that a good test of when a system of popular control is efficacious enough in controlling the state is that it allows you and your fellow citizens to think of unwelcome decisions on the part of government as products of tough luck, not signs of a malignly exercised power of domination. Assuming that it is appropriately directive, then, the influence of a people within a legitimate state must not only be equally accessible and unconditioned; it must also be efficacious at a level that ensures the satisfaction of that test. Conclusion In the first section of this article, we saw that it is perfectly natural to distinguish between the justice question as to whether the social order imposed by a state is desirable and the legitimacy question as to whether the way in which the order is imposed is desirable. In the second section, we looked at how the question of legitimacy came to be neglected or downplayed in favour of a single focus on justice, particularly under the influence of the modern ideal of freedom as non-interference. And then, arguing that no such elision is supported by the older ideal of freedom as non-domination, we saw in principle how the imposition of a social order might be consistent with the freedom of the people on whom it is imposed—in this republican sense of freedom—and might in that sense count as legitimate. The article does not offer a full account of how a state might be organized so as to achieve legitimacy of this kind but I hope it may do enough to raise a serious challenge for the many current approaches in legal or political philosophy that effectively ignore or downgrade the ideal of political legitimacy. 82 Philip Pettit by guest on January 27, 2013 http://clp.oxfordjournals.org/ D ow nloaded from http://clp.oxfordjournals.org/ 
work_rk7tvu2slfffzdkjscrloowkdq	----	No Job Name Global environmental justice and biodiversity conservation ADRIAN MARTIN*, SHAWN MCGUIRE* AND SIAN SULLIVAN† *School of International Development, University of East Anglia, Norwich Research Park, Norwich NR4 7TJ †Department of Geography, Environment and Development Studies, Birkbeck College, London E-mail: adrian.martin@uea.ac.uk This paper was accepted for publication in January 2013 This paper explores the potential for an environmental justice framing to shed new light on conservation controversies. We argue that, in order to make such progress, environmental justice analysis will need to provide a ‘difference-friendly’ conception of justice and that this will neces- sarily involve moving beyond dominant liberal conceptions of distributional fairness. We are largely welcoming of global deployments of distributive justice principles. However, we also explore the dangers of focusing on distribution alone, questioning the assumption of positive relationships between benefit sharing and more culturally defined dimensions of justice such as recognition. The limits of access and benefit sharing for delivering justice writ large is that it can disenfranchise people who are less well equipped or less willing to navigate its prevailing system of knowledge. We argue that, especially in the context of resource poverty, efforts to improve distribution can require potential beneficiaries to assimilate to dominant discourses of society and nature. Such condition- ality can contract the opportunities for local and autonomous constructions of ‘different’ ways of knowing nature, and in doing so may also contract possibilities for flourishing biodiversities. KEY WORDS: environmental justice, distributive justice, procedural justice, recognition, biodiversity conservation, payments for ecosystem services History will recall that it was here in Nagoya that a new era of living in harmony was born and new global alli- ance to protect life on earth was established . . . Nagoya will be remembered as the city where the biodiversity accord was born. Ahmed Djoghlaf, Executive Secretary of the UN Convention in Biodiversity (CBD), quoted in Secretariat of the CBD (2010, 1) The conference [CBD COP 10, Nagoya] was marked by a significant divide between developing countries and industrialized countries over market-based and other pro-business approaches to biodiversity. While the EU and other Northern countries pushed for market-based mechanisms, including as a financial resource for biodi- versity conservation, many Southern countries pointed at the serious environmental and social risks of these mechanisms . . . Global Forest Coalition (2010) T hese different reflections on the same confer-ence illustrate that justice is a contested notionin biodiversity conservation, as it is elsewhere. Notions of justice – from access rights, to deliberative processes shaping decisionmaking, to the sharing of economic benefits – permeate debates regarding envi- ronmental issues and are infused with tensions arising from centuries of colonial exploitation, global eco- nomic inequalities, and the challenges of aligning different ways of knowing and valuing nature. This paper explores the potential for an environ- mental justice (EJ) framing to shed new light on such old controversies. Our main argument is that, in order to make such progress, EJ will need to move beyond a focus on the distributive dimension of justice to engage with the dimension of ‘recognition’. We will argue that ‘justice-as-recognition’ complements other dimensions of environmental justice and provides the most promising conceptual approach to resolving ten- sions between social and ecological values. We agree with Nancy Fraser (2001 2009) and David Schlosberg (2004 2007) that justice in this age of globalisation requires us more than ever to enquire into the struc- tural causes of maldistribution, but that a focus on distribution alone may not address underlying mecha- nisms of injustice, and may even reinforce them. To illustrate, we cite cases of conservation in developing countries where efforts to improve distribution can bs_bs_banner The Geographical Journal, Vol. 179, No. 2, June 2013, pp. 122–131, doi: 10.1111/geoj.12018 The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013 © 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) require potential beneficiaries to assimilate to domi- nant ways of knowing and living with nature, or domi- nant approaches to consensus and decisionmaking. Such conditionality can contract the opportunities for local and autonomous constructions of ‘different’ socionatures, perpetuating a form of injustice based on lack of recognition. Where efforts to promote justice are not sensitive to recognising cultural differ- ence, they may even contribute to eroding one of the world’s most important ‘diversity’ sources that some argue is inextricably linked with the flourishing of biological diversity (Maffi 2001). We begin the paper by defining the terms used to describe different dimensions of environmental justice. We highlight the dominant western liberal tradition of distributive justice, how this dominated early, state-based applications of environmental justice analysis, and how the globalisation of environ- mental issues poses challenges to such a framing. We then employ these environmental justice concepts to explain how inequalities have historically been pro- duced through biodiversity conservation. In order to emphasise the more discursive roots of the production of injustices, we introduce the notion of dominant ‘ways of knowing’ (cf. Belenky et al. 1986) and con- sider how these may pose an obstacle to the uptake of insights about recognition from environmental justice analysis. As an illustration, we discuss how the term ‘biodiversity’ can be employed in ways that per- petuate dualist thinking about society and nature, potentially excluding recognition of alternative cosmologies. We then proceed to explore the appar- ent limitations of confining justice thinking to matters of distribution and not engaging with the more overtly political agenda of recognition. To do this, we briefly look at global efforts to achieve more just distribution of conservation costs and benefits through access and benefit sharing (ABS) under CBD architecture and through payments for ecosystem services (PES). In light of these limitations we consider why the field of biodiversity conservation has found it difficult to take on board justice-as-recognition, despite the insights provided by environmental justice analysis. We argue that, in effect, such insights have been discursively excluded from biodiversity practice due to the prevail- ing dualism in modern environmentalism: the separa- tion of nature and society. The problem of dualism and the problem of recognition are strongly connected and we proceed to an exploratory conclusion that embracing justice-as-recognition can help to resolve tensions between social and ecological priorities. In the final part of the paper we explore a little further the connection between the society–nature dualism and the separation of justice-as-distribution from justice-as-recognition. In doing so we make an admit- tedly preliminary case that challenging these twin dichotomies provides us with a way of approaching the problem of reconciling social justice and environ- mental sustainability (cf. Dobson 2007). Beyond distributive justice According to Vincent (1998, 137) ‘the only area of justice theory that is clearly relevant to the environ- ment is distributive justice’. In contrast, we follow Schlosberg (2007) and propose that an understanding of biodiversity conflicts will best be served by a mul- tidimensional conception of justice that also empha- sises procedure and recognition, especially where values of social justice and environmental sustainabil- ity confront each other. Distributive justice is con- cerned with benefit and burden sharing: who gets what, who has to live with what (Walker 2012), and what moral principles can be employed to make nor- mative claims about just and unjust distributions. Bio- diversity conservation raises a range of intra- and intergenerational distribution concerns which high- light the importance of distributive justice principles (e.g. Jamieson 1994). Among the most persistent is the concern that the poor pay a disproportionate cost for conservation, while the rich secure most of the ben- efits (Chan and Satterfield 2007). Issues of distribution are intensified by the unequal spatial distribution of biodiversity (Gaston 2000), including areas classified as ‘hotspots’ (e.g. Brooks et al. 2002), as well as by the uneven and changing distributions of people in prox- imity to such locations (e.g. Wittemyer et al. 2008). They are also intensified by the irreversibility of species loss, an important quality of biodiversity that serves to harden intergenerational concerns and adds heat to conflicts between local proprietary demands and claims for the national, global and future public good. Conflict between local access and territory on the one hand, and putative common heritage benefits on the other, reveals a chasm between consequential- ist (utilitarian concerns about distributional outcomes, in which ends may justify means) and deontological (ex ante concerns with rights, rather than outcomes) thinking about justice. Determining just distribution may be based on an attempt to determine what individuals or groups deserve to receive, or gaining agreement regarding a fair procedure for allocation (Vincent 1998). Thus procedural justice is closely con- nected to distributional justice. It is about how deci- sions are made, who is included in these processes and, again, about the principles that we use to make normative claims about just or unjust procedures. Matters of procedure commonly appear in conserva- tion policy documents as commitments to local com- munity participation and to securing their informed consent. Procedure might be based on rational con- tractarian principles (John Rawls being a towering example of this thinking; e.g. Rawls 1999 [1971]) or based on agreed empirical needs such as freedom from violence, hunger and easily curable diseases (Schroeder and Pogge 2009). We believe that recognition offers a distinct and important additional conception of environmental justice (cf. Fraser 1997), while noting, with Lois Global environmental justice and biodiversity conservation 123 The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013© 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) McNay (2008), the significant structural constraints and inequities that prevent recognition possibilities from emerging. The particular relevance of justice-as- recognition to the field of biodiversity conservation stems from the fact that there are often considerable cultural differences between negotiating parties, including culture–nature cosmologies and views of what constitutes just distribution or procedure (de Jonge 2011; Whiteman 2009). Recognition is about seeking equality between different ways of knowing the world (de Jonge 2011), or put another way, about being reflexive regarding whose culture is privileged and respected (Walker 2012). An emphasis on distri- butional or procedural justice by no means guarantees such respect. One outcome is that schemes focusing on distributional aspects, such as biodiversity ABS schemes, may be perceived by local communities as culturally dominating (Whiteman 2009; de Jonge 2011; Vermeylen and Walker 2011). In these circum- stances, as Harvey (1996, 398) notes, ‘conflict is not between just and unjust solutions but between differ- ent conceptions of justice’. In the tradition of twentieth century western liber- alism, distributive justice has largely developed as a state-based function, enshrined in national sover- eignty, citizenship and the welfare state. Economic and political dimensions of globalisation challenge the adequacy of this basis for justice (Fraser 2009). For example, the UN Convention on Biological Diversity (ratified in 1993) is oriented towards state-based dis- tribution systems based on sovereignty, and because of this, is often challenged by causes and conse- quences of biodiversity erosion that lie beyond states. Indigenous peoples’ struggles over biodiversity may also have both ‘roots and wings’ (Castree 2004, 136), being place based at the same time as invoking and organising around global referents, such as the UN Declaration on the Rights of Indigenous Peoples. While a state-based conception of justice has become inadequate, so too has one based on distribution of costs and benefits alone (Schlosberg 2004 2007). This observation becomes increasingly evident as one looks beyond state-based analysis to consider wider causes that underpin or connect particular cases of distributional injustices. Environmental justice is also about politics and the power to speak of and manifest values that are not only economic. This takes us into the realm of identity-based arguments for recognition and, in particular, the lack of status and respect for marginalised groups. The US environmental justice movement initially focused mainly on issues of distribution of toxic waste within the Unites States (Bullard 1990) but was not confined to identifying inequality of distribution. The production of injustices was claimed to be rooted in the institutional racism and classism that denied just decisionmaking about dump site locations. Likewise a globalised environmental justice analysis applied to biodiversity conservation needs to address the struc- tural causes that suppress some groups and allow others to dominate. This analysis of ‘recognition’ must consider how status hierarchies bias distribution and procedure for different identity groups (related, for example, to gender or ethnicity). We propose here that the domination of certain ‘ways of knowing’ nature contributes to the persistence of such status hierarchies. This includes the dominant environmen- tal economics perspectives that underscore discourses of mutual benefit arising from pricing and commodi- fying nature (McAfee 1999; Spash 2010). This point becomes clearer if we define justice-as-recognition as aiming for a state of affairs in which all people have the right to equal respect, and equal opportunity to participate, benefit and avoid harms, without this being conditional upon assimilation into dominant cultural norms (Fraser 2001; Bohman 2007). Notwith- standing the political difficulties of generating con- texts for ‘fair hearing’, adopting the lens of recognition might provide an opportunity to reconcile social justice with environmental sustainability, especially if it is accepted that cultural diversity may be beneficial to, or at least compatible with, biological diversity. This is really the essence of our argument – that if we agree on the premise that biological and cultural diversity are compatible, then a ‘difference-friendly’ cosmopolitan cultural politics might correspond with a politics of sustainability. We proceed by considering how this lesson emerges from a history of biodiversity conservation, as seen through a multidimensional environmental justice analysis, while also emphasis- ing how this lesson has proven hard to learn in con- servation practice. Lessons from history The setting aside of land areas for the conservation of particular species and habitats has long been associ- ated with both restricted access to these ‘resources’ by élites, and the displacement or criminalisation of access by peoples less able to command economic and political dominance. The historical acquisition and consolidation of large landed estates and con- served hunting grounds in the UK, for example, fre- quently required the eviction of whole villages and the criminalisation of former practices for resource use on land thereby acquired. Thus Marx notes the destruction of 36 villages in 1079 by William the Conqueror of Normandy, so as to create a royal hunting ground of the New Forest in south England (Marx 1974 [1887], 685), a practice that was extended as deer parks were created in expanding estates throughout the country in Renaissance England (Nicolson 2009). The early 1700s saw the systemic criminalisation of resource use and access on remaining forest and common lands through the infamous ‘Black Acts’, which overrode ‘customary procedure and the defences of the subject’ to create ‘at a blow some fifty new capital offences’ linked with 124 Global environmental justice and biodiversity conservation The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013 © 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) the hunting and accessing of other items from lands including forests, commons, heaths and parks (Thompson 1977, 21–2). This clearance model was exported to the New World landscapes of North America through the later creation of the first National Parks of Yellowstone and Yosemite, a process redolent with militarised management regimes and the evic- tions of indigenous peoples who had shaped these new ‘wilderness’ landscapes (for histories of biodiver- sity conservation through the setting aside of land in conserved areas, see, for example, Adams 2004; Brockington et al. 2008). The subsequent transfer of this model to Old World situations, particularly in Africa, has naturalised a problematic ideal of wilder- ness landscapes as empty of people, when this in fact is manufactured through the removal of indigenous and local human use and habitation (Brockington and Igoe 2006; Dowie 2009). Viewed through a contemporary environmental justice analysis, such displacements engender clear justice transgressions, including human rights abuses and the ignoring of just about all procedural, distribu- tive and recognition justice practices. Their extension into the current moment is indicated by the recent mobilisation for a Conservation Initiative on Human Rights (CIHR) through which such injustices might be identified and addressed. Amidst global calls for inclusive and ‘sustainable development’ – including through the 1972 Stockholm Conference on the Human Environment, the World Conservation Strategy (1980), the 1992 Earth Summit (which saw the establishment of the UN Convention on Biological Diversity) and the UN Millennium Development Goals (2000) – conservation practice in recent decades has responded with a surge of energy around finding ways both to redress past injustices and to create new policies and practices that are more inclu- sive. Through the work and funding of organisations such as the IUCN, USAID, the major international Environmental NGOs, and national Ministries and implementing NGOs and agencies, these have emerged as combined conservation and development initiatives, including Integrated Conservation and Development Projects (ICDPs) and Community-Based Natural Resources Management (CBNRM). These ini- tiatives have tended to focus on both distributive and procedural issues, emphasising to varying extents, and with varying outcomes, both the distribution of ben- efits, and participation in decisionmaking processes and consultations. The policy documents of conserva- tion NGOs and UN CBD also typically include some reference to recognising indigenous culture and knowledge (e.g. Greiber et al. 2009; WWF 2008; WCS 2009; BirdLife International 2011), but this is much less evident in field practice, where the empha- sis is on implementing participatory consultations and benefit-sharing schemes. Partly as a result of the rather notional attention to what we are calling recognition, these efforts at pro- moting justice have come under criticism for reducing benefits to monetary payments, and decisionmaking processes to externally led structures that are neither initiated by, nor mesh well with, local values and realities. This is compounded by a current ‘Green Economy’ emphasis (e.g. UNEP 2011; World Bank Group 2012) that privileges market-based solutions to conservation problems (including PES, a REDD+ mechanism (reducing emissions from deforestation and forest degradation in developing countries) and ABS agreements), and limits possibilities for redress and compensation to monetary measures within the dictates of a neoliberal discourse that tends to fore- close alternative values. Concerned social movements of peoples living in remaining biodiverse landscapes instead are embracing ‘rights-based approaches’ that prioritise ‘rights to lands, territories and resources; recognition of traditional knowledge and traditional practices; and respect for indigenous peoples’ own governance structure and equitable benefit-sharing’ (Workshop Report 2012, 3). In other words, arguably it is the right to be recognised on one’s own terms that is animating current calls for rights and appropriate justice in relation to biodiversity and other environ- mental parameters. Ways of knowing (or ‘ways of not recognising’) Since its coinage in the 1980s (Wilson 1988), the term ‘biodiversity’ has become common parlance for con- servation scientists. Broadly describing the variation of life at all scales of biological organisation – from molecules to ecosystems – biodiversity is commonly seen as essential for maintaining healthy and resilient natural systems, and for continued evolution. The rapid rate of biodiversity loss, particularly in the tropics, is one of the pressing environmental and social concerns of our time, and human activity is a major cause of this (Schipper et al. 2008; Zalasiewicz et al. 2010; WWF, 2010). The preservation of remain- ing biological diversity is generally seen as critical, and animates a range of in situ and ex situ global policy approaches, including the establishment of enclosed land- and seascapes whose primary form of use is conservation, and the creation of zoos, herbaria and seed banks (cf. Pistorius, 1997; Carroll et al. 2008; Briggs et al. 2009). Though referring to concrete biophysical phenom- ena, biodiversity is also ‘a discursive invention of recent origin’ around which a complex network of actors now revolves, ‘composed of sites with diverg- ing biocultural perspectives and political stakes’ (Escobar 1998, 53). It can appear to delineate bio- logical realms as distinct from other environmental phenomena, as well as from human activity. By supporting such separation, ‘biodiversity’ is a concep- tual construct for understanding life that in fact may engender profoundly ‘unecological’ thinking, by dis- assembling life’s entities both from each other and Global environmental justice and biodiversity conservation 125 The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013© 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) from the complex environmental contexts necessary for sustenance at all scales (following Deleuze and Guattari 1987 [1980]; Latour 2004 2005; De Landa 2006). Similarly, we should at least be sensitive to the cognitive implications of selecting an ‘ecosystem serv- ices’ framework, which (like other choices of framing before it) contracts our ways of knowing biodiversity and nature in general, with the associated cost of crowding out much of the rich variety of ecological thinking (Norgaard 2010). While a modern science of conservation biology may consider biodiversity conservation implicitly to require at least some separation of ‘wild nature’ from people (e.g. Terborgh 1999), this distinguishing of natural history from human dwelling is itself an understanding and orientation associated with the constructions of human and non-human nature guiding European Enlightenment ideals. It is a par- ticular cognitive and cultural understanding that nonetheless has become universally transmitted and applied via the structures, sciences and technologies of modernity, with both ecological and social justice implications. An outcome has been the enclosure of landscapes as a core conservation method, alongside the multiple land and resource enclosures that have made possible the structural inequities characterising global industrial society. Attention to this prevailing cognitive landscape helps us to understand why insights about recognition arising from an environ- mental justice analysis are relatively easy to assert in policy rhetoric, but are resisted in practice (Benjaminsen and Svarstad 2010). We turn now to examining how the absence of recognition, rooted in this dominance of particular ways of knowing, is a serious limitation for currently popular approaches to addressing conservation injustices. Current justice practices in biodiversity conservation This way of knowing biodiversity has informed the progressive allocation of territory to conservation activities, a phenomenon that can be associated with displacements and loss of resource access for local peoples (e.g. Brockington and Igoe 2006; Chapin 2004; Dowie 2009; Brockington and Duffy 2010). Contemporary biodiversity conservation is consider- ably more sensitive to the desire to mitigate the costs to local people and to an ideal of transforming con- servation into a vehicle for development. Thus, as biodiversity conservation has expanded spatially, new management approaches and technologies have been developed, entailing a shift from casting local people as villains (fortress conservation), to stewards (community-based conservation), and now as ecosys- tem service providers (PES) (Adams and Hutton 2007; Zimmerer 2009). As noted above, a significant policy response to conservation injustice concerns is the recent launch of a Conservation Initiative on Human Rights by the International Union for the Conservation of Nature, in conjunction with the largest interna- tional conservation NGOs (IUCN 2010). Through employing rights-based discourses (e.g. Greiber et al. 2009), this initiative appeals to standards in interna- tional law in seeking to promote common and con- sistent human rights principles in conservation work (Roe et al. 2010). In practice, however, the most significant interven- tions to make conservation more fair seek to uphold rights to benefits, via systems of distribution that include revenue-sharing arrangements, compensation schemes, or payment for ecosystem service provision. While we recognise the importance of such instru- ments for ensuring fair distribution, we nonetheless think it is necessary to confront their problems, as perceived through a justice-as-recognition lens. For example, do the kinds of benefits on offer through current interventions set conditions, such as the need to assimilate into dominant ways of thinking about biodiversity, social relations or development goals? Might benefit-sharing interventions act to subdue dif- ference by enfolding peoples and localities into glo- bally dominant political and economic arrangements, the current form of which is market expansion shaped by neoliberalism (Foucault 2008 [1979]; Sullivan 2006 2011; Fletcher 2010)? We focus our attention on examples of initiatives intended to balance commercial exploitation of biological resources with the return of economic ‘benefits’ and/or the protection of indigenous and traditional knowledge. A first example is the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, intended as ‘a framework that bal- ances access to genetic resources on the basis of prior informed consent and mutually agreed terms with the fair and equitable sharing of benefits, while taking into account the important role of traditional knowledge’ (Secretariat of the CBD 2010, 2). This seeks to limit potential distributional injustice arising from the dis- proportionate flows of benefits from genetic resources from South to North, flows which historically reflected where the biodiversity and scientific capacity were found (ten Kate and Laird 1999; Rege and Gibson 2003; Smale and Day-Rubenstein 2002). By recognis- ing ‘traditional knowledge’, ABS agreements attempt to ameliorate the effects of past extraction. However, as Robinson (2010) shows through analysing disputes on benefit flows around Thai rice genetic resources, policy around ABS tends to impose a single under- standing of ‘biodiversity’, ‘property’ or ‘traditional knowledge’. Recognition injustice certainly arises from the consequent obscuring of specific local cul- tural and historical understandings, but also the result- ing tensions can lead to dissent and oppositional biopolitics, posing practical challenges for conserva- tion in the longer term (Brush 2007). Without better recognition of local differences, ABS agreements will 126 Global environmental justice and biodiversity conservation The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013 © 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) continue to face charges that they mainly serve to create the conditions for sustaining commercial access to biodiversity resources and knowledge in indigenous territories (e.g. Svarstad 1995; Moeller 2010; de Jonge 2011). A second example is the widespread use of tourism revenue sharing schemes, especially around protected areas with significant wildlife tourism industry. While these schemes are ostensibly about addressing community concerns about distribution of costs and benefits, Schroeder (2008) documents how in Tanzania they have in practice been more motivated by the desire to gain greater leverage over local communities and further entrench the view that commodifying nature for tourism is the best way to save it and to satisfy local needs. A similar con- clusion might be drawn across the border in Rwanda and Uganda, where the lucrative gorilla tourism industry has been a key rationale for strict separation of park and people, sweetened by revenue sharing schemes which, despite sincere intentions to the contrary, yield greatest benefits to the wealthier local residents (Bush et al. 2010). While gorilla tourism has in many ways been very successful, the danger we highlight in this example is that the discursive power of ‘selling nature to save it’ (McAfee 1999) may preclude alternatives and thereby oppose cul- tural diversity. PES, including REDD+, represent another rapidly spreading form of benefit sharing, in which those constituencies who most value (benefit from) conser- vation of forests and other biodiversity and/or carbon-rich landscapes make economic payments to local people, but conditional on their behaving in certain ways and participating in this dominant way of conceptualising environmental sustainability. PES and REDD+ seek to maintain healthy environments, including biodiversity, by converting these domains into economic prices and creating markets in these, such that ‘service users’ can ‘offset’ their own environmental damage (e.g. Perrot-Maître 2006; UNEP/IUCN 2007; Davis 2010) or compensate for the opportunity costs borne by ‘service maintainers’. As with the preceding discussion of tourism revenue sharing, it is pertinent to ask what the motives are for such rapid expansion. Fisher (2011) found mixed motives among international conservation NGOs but the most common rationale for embracing ecosystem service and PES approaches was not that it provided a means of fair (re)distribution but that it enabled the NGO itself to access new sources of funding to expand its activities. To an extent, then, even global NGOs feel that there is a dominant way of thinking that they have to assimilate to, and we might suggest that such global-level assimilation gets projected down towards local communities who become hosts to the newly funded conservation interventions. As Spash (2010) observes, the rationale behind carbon trading itself is strongly driven by corporate power and environmental-economic theory that portrays market-based approaches as more efficient than alternatives such as state regulation. However, as we note for tourism revenue sharing, there is a massive gap between theory and reality, with huge obstacles to making carbon payment systems and other PES schemes work for the poor in the real world. For example CARE Uganda pulled out of carbon forestry projects because it proved impossible to reconcile the scheme with their pro-poor mandate (Fisher 2011). It is no longer surprising that benefit sharing and payments schemes are widely contested on grounds of distribution. PES schemes, for example, are critiqued for their inability to accommodate diverse, collective and informal forms of ownership and their favouring of stakeholders who are fortunate enough to own suitable land tracts (Corbera et al. 2007; Schroeder 2008; Böhm and Dabhi 2009; Corbera and Brown 2010). In addition to the prac- tical difficulties of being pro-poor, there are also dif- ficulties of recognising and respecting local people’s right to participate as equals. The notion of ‘prior and informed consent’ is employed with little con- sideration for challenges of securing this adequately within community constituencies. There is a large lit- erature on the limitations of professionalised proce- dures for participation and deliberation (Chilvers 2009) and it has to be asked how local knowledge and views can really be protected, and what are the real safeguards, if any, against the top-down imposi- tion of ways of knowing. Viewed through the lens of distributional justice, and given a global context that locates both high poverty and high biodiversity in the global South, ABS and PES might be argued to be mechanisms for improved distribution. In economic theory, they are efficient, they create new property rights over newly commodified environmental goods, they allocate decisionmaking powers (to consent to enter the market or not), and they assure either a share in ben- efits from exploitation, or compensation for foregone exploitation. Thus they can redistribute benefits and/or costs in ways potentially favourable to the poor. While the emphasis on the nation-state (e.g. in CBD and REDD) is problematic because the interests of states too rarely align with marginalised groups, even this can be presented as progressive in the context of vast wealth disparities between North and South (Schroeder and Pogge 2009). PES might then have potential for poverty alleviation (Pagiola et al. 2005; Wunder 2008) and this is a key reason behind narratives of multiple win scenarios, with the theoreti- cal potential to align interests in biodiversity conser- vation, climate change mitigation, poverty reduction and local empowerment (while reassuring those stakeholders who are committed to continued growth in carbon-based economies). What we hope to have done here, albeit briefly, is to assert that the real world rarely looks like this, and that these schemes are often Global environmental justice and biodiversity conservation 127 The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013© 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) frail when scrutinised for distributional justice. Moreover, for the current argument, they potentially perpetuate failures of recognition through the exten- sion of popular, dominant conceptions of environ- mental sustainability. Social justice and environmental sustainability As constituted in prevalent ways of thinking about society and nature, there often appear to be conflicts between the demands of biodiversity conservation for the many and demands for social justice by the few who live near to its ‘hotspots’. The separation of environmental and social in moral thinking is in part a product of the perceived contest between the fear of extinction, with its repercussions for the common her- itage, and the desire to respect human rights, for example with respect to displacement (a tension between consequentialist and deontological think- ing). Working along this fault line, Dobson (2007) sees little prospect for reconciling social and environmen- tal justice because there is no evidence that social justice is either a precondition for, or a product of, biological conservation. He arrives at ‘the reluctant conclusion that social justice and environmental sus- tainability are not always compatible objectives’ even though we might dearly wish them to be so, because ‘sustainability is about preservation and/or conserva- tion; justice is about distribution’ (2007, 83, 93). Dob- son’s careful analysis of this difference finds only one case of common ground, in the area of intergenera- tional justice. While species loss might not produce injustices within the current generation, he argues that it does clearly produce injustice towards future gen- erations and in this particular respect the objectives of social justice and environmental sustainability are demonstrably aligned. The question of whether we can align the objectives of social and environmental justice appears critical if we are to achieve approaches to biodiversity conser- vation that are less conflictive than they have some- times been. We wonder whether this apparent tension between social and environmental justice becomes more resolvable through a conceptualisation of justice that extends beyond distribution to include recogni- tion? For biodiversity conservation, we have seen that the problem of recognition revolves around the domi- nance of ways of knowing that dichotomise people and nature, and which seek to resolve overexploita- tion of nature through a form of reconnection based on commoditisation. The problem of malrecognition is therefore connected to the problem of reconciling social justice with sustainability, as both problems are linked to a way of knowing that involves the separa- tion of nature and society. The concept of biocultural diversity might prove useful in addressing these dual separations, and so help reconcile social and environmental concerns about biodiversity. Research into biocultural diversity points out the co-occurrence of biological and lin- guistic diversity ‘hotspots’ (Gorenflo et al. 2012), and argues that this is not coincidental but rather that cultural diversity and biological diversity are to some degree mutually supportive (Maffi 2001; Maffi and Woodley 2010). The role of culture in shaping bio- diversity is increasingly appreciated, particularly for ‘domesticated’ biodiversity, where growing evidence shows how crop genetic diversity is (re)created by culturally specific management practices and norms, interacting with the biophysical environment (Leclerc and d’Eeckenbrugge 2012; McGuire 2008; Caillon and Degeorges 2007). Consequently, recognition of specific ways of knowing poses no major problems for in situ conservation of domesticated crop diversity, particularly as cultural diversity – and cultural change – are essential for maintaining dynamic, and adapted, biodiversity assemblages (Louette et al. 1997). For less ‘domesticated’ biological diversity, there is also evi- dence that indigenous economies and management practices can support conservation (Gorenflo et al. 2012). However, few conservation programmes for ‘wild’ biodiversity promote different ways of knowing – so the impact of cultural recognition on conserva- tion outcomes remains an open question. Empirical and programmatic debates will continue around bio- cultural diversity, but the concept’s value is to show that the separation of nature and society is artificial, and for conservation possibly counter-productive. This is not to privilege any particular type of cultural diversity, or to romanticise indigenous cultures as essentially ecological. Rather it is to assert that a diversity-friendly justice (which will be acceptable to many on the left) can also be a biodiversity-friendly justice. As such we suggest that a broader engagement with the underpinnings of environmental distribu- tions, combined with awareness of the complexities and subtleties in biocultural assemblages and knowl- edges alluded to above, offers more fertile ground for a shared justice discourse. Having ventured down this line of thinking, we also wonder to what extent the concept ‘environmental justice’ is (or should be) a category distinct from ‘social justice’? It seems to us that separating these domains can become a problem- atic mirror of the onto-epistemological distinction between ‘culture’ and ‘nature’ that arguably has pro- duced the global ‘socio-environmental justice’ con- cerns we currently face (cf. Viveiros de Castro 2004; Plumwood 2006; Curry 2008). Conclusion Biodiversity clearly is an arena infused and populated with vibrant justice issues, at multiple and connecting scales of observation and experience. In closing this paper, without dismissing the justice achievements of modern distributive and rights-based discourses and legislation, we note that participation in this univer- salising language can itself become a means by which 128 Global environmental justice and biodiversity conservation The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013 © 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) diversity of knowledge practices become occluded and displaced. As such, we call for the maintenance of robust political economy analyses of the locations and alliances of contemporary ‘socio-environmental justice’ issues with nuanced understanding of the roles of capitalist structures and assumptions in the production and mitigation of these issues. In this, we ask to what extent a global environmental justice may enhance the field of political ecology in understand- ing the emergence of specific global socio- environmental justice issues, and in providing critical understandings of the roles of power in delineating, causing and distributing environmental ‘goods and bads’ (cf. Atkinson 1991; Forsyth 2003). Global policy innovations that attempt to align the management of biodiversity for conservation, eco- nomic growth and social justice tend to do this in ways that are uncritical of, and in fact sustain, a neo- liberal political economic framework that shores up market-based mechanisms and makes these different arenas compatible by constituting all of their refer- ents in economic terms and measures. The intention is to manage capitalism/economic growth for envi- ronmental conservation and social justice, at the same time as turning these latter domains themselves into possibilities for capital value accumulation. But this way of framing society–nature relations denies prospects for spatial difference, for self- determination, for subsistence autonomy, and for nurturing non-modern socio-ecological values and practices. As approaches to making possible radical forms of equity and justice in distributive, procedural or cognitive/onto-epistemological terms, these are severely constrained. It is with this understanding that engagement with the new referent of ‘global environmental justice’ might attain meaning and traction. Acknowledgements We would like to acknowledge the very helpful sug- gestions from two anonymous reviewers. References Adams W A 2004 Against extinction: the story of conservation Routledge, London Adams W and Hutton J 2007 People, parks and poverty: political ecology and biodiversity conservation Conservation and Society 5 147–83 Atkinson A 1991 Principles of political ecology Belhaven Press, London Belenky M F, Clinchy B V, Goldberger N R and Tarule J M 1986 Women’s ways of knowing: the development of Self, voice and mind Basic Books, New York Benjaminsen T and Svarstad H 2010 The death of an elephant: conservation discourses versus practices in Africa Forum for Development Studies 37 385–408 BirdLife International 2011 An introduction to conservation and human rights for BirdLife Partners BirdLife International, Cambridge Böhm S and Dabhi S eds 2009 Upsetting the offset: the political economy of carbon markets MayFly Books, London Bohman J 2007 Beyond distributive justice and struggles for recognition: freedom democracy and critical theory European Journal of Political Theory 6 267–76 Briggs B D J, Hill D A and Gillespie R 2009 Habitat banking – how it could work in the UK Journal for Nature Conservation 17 112–22 Brockington D and Duffy R 2010 Conservation and capitalism: the production and reproduction of biodiversity conservation Antipode 42 469–84 Brockington D and Igoe J 2006 Eviction for conservation: a global overview Conservation and Society 4 424–70 Brockington D, Igoe J and Duffy R 2008 Nature unbound: conservation, capitalism and the future of protected areas Earthscan, London Brooks T M, Mittermeier R A, Mittermeier C G, Da Fonseca G A B, Rylands A B, Konstant W R, Flick P, Pilgrim J, Oldfield S, Magin G and Hilton-Taylor C 2002 Habitat loss and extinc- tion in the hotspots of biodiversity Conservation Biology 16 909–23 Brush S B 2007 Farmers’ rights and the protection of traditional agricultural knowledge World Development 35 1499–514 Bullard R D 1990 Dumping in Dixie: race, class and environ- mental quality Westview Press, Boulder, CO Bush G, Ikirezi M, Daconto G, Gray M and Fawcett K 2010 Assessing impacts from community conservation interventions around Parc National des Volcans Dian Fossey Gorilla Fund International, Rwanda Caillon S and Degeorges P 2007 Biodiversity: negotiating the border between nature and culture Biodiversity Conservation 16 2919–31 Carroll N, Fox J and Bayon R 2008 Conservation and biodiversity banking: a guide to setting up and running biodiversity credit trading systems Earthscan, London Castree N 2004 Differential geographies: place indigenous rights and ‘local’ resources Political Geography 23 133–67 Chan K and Satterfield T 2007 Justice, equity and biodiversity in Levin S, Daily G C and Colwell R K eds The encyclopedia of biodiversity Elsevier, Oxford 1–9 Chapin M 2004 A challenge to conservationists World Watch Magazine November/December 16–31 Chilvers J 2009 Deliberative and participatory methods in envi- ronmental geography in Castree N, Demeritt D, Liverman D and Rhoads B eds A companion to environmental geography Wiley-Blackwell, Chichester 400–17 Corbera E and Brown K 2010 Offsetting benefits? Analyzing access to forest carbon Environment and Planning A 42 1739–61 Corbera E, Brown K and Adger W N 2007 The equity and legitimacy of markets for ecosystem services Development and Change 38 587–613 Curry P 2008 Nature post-nature New Formations 26 51– 64 Davis A I 2010 Ecosystem services and the value of land Duke Environmental Law and Policy Forum 20 339–84 Global environmental justice and biodiversity conservation 129 The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013© 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) de Jonge B 2011 What is fair and equitable benefit-sharing? Journal of Agricultural and Environmental Ethics 24 127– 46 De Landa M 2006 A New Philosophy of society: assemblage theory and social complexity Continuum, London Deleuze G and Guattari F 1987 [1980] A thousand plateaus: capitalism and schizophrenia Massumi B trans The Athlone Press, London Dobson A 2007 Social justice and environmental sustainability: ne’er the twain shall meet? in Agyeman J, Bullard R and Evans B eds Just sustainabilities: development in an unequal world MIT Press, Cambridge, MA 83–95 Dowie M 2009 Conservation refugees: the hundred-year conflict between global conservation and native peoples MIT Press, Cambridge MA Escobar A 1998 Whose knowledge, whose nature? Biodiversity conservation and the political ecology of social movements Journal of Political Ecology 5 53–82 Fisher J 2011 Payment for ecosystem services in forests: analys- ing innovations policy debates and practical implementation Unpublished PhD thesis, University of East Anglia Fletcher R 2010 Neoliberal environmentality: towards a post- structural political ecology of the conservation debate Conser- vation and Society 8 171–81 Forsyth T 2003 Critical political ecology: the politics of environ- mental science Routledge, London Foucault M 2008 [1979] The birth of biopolitics: lectures at the Collège de France 1978–1979 Burchell G trans Palgrave Mac- millan, Basingstoke Fraser N 1997 Justice interruptus Routledge, London Fraser N 2001 Recognition without ethics? Theory, Culture and Society 18 21–42 Fraser N 2009 Scales of justice: reimagining political space in a globalizing world Columbia University Press, New York Gaston K J 2000 Global patterns in biodiversity Nature 405 220–7 Global Forest Coalition 2010 Biodiversity summit adopts binding decisions against biopiracy and geo-engineering Press release (www.globalforestcoalition.org) Accessed 26 January 2013 Gorenflo L J, Romaine S, Mittermeier R A and Walker-Painemilla K 2012 Co-occurrence of linguistic and biological diversity in biodiversity hotspots and high biodiver- sity wilderness areas Proceedings of the National Academy of Science in press. doi:10.1073/pnas.1117511109 Greiber T, Janki M, Orellana M, Savaresi A and Shelton D 2009 Conservation with justice: a rights-based approach IUCN Environmental Policy and Law Paper No. 71 IUCN, Gland Harvey D 1996 Justice, nature and the geography of difference Blackwell, Oxford IUCN 2010 Conservation initiative on human rights (www.iucn.org/about/work/programmes/social_policy/sp_ themes_hrande/scpl_cihr/) Accessed 10 August 2010 Jamieson D 1994 Global environmental justice Royal Institute of Philosophy Supplement 36 199–210 Latour B 2004 Politics of nature: how to bring the sciences into democracy Harvard University Press, Cambridge MA Latour B 2005 Reassembling the social: an introduction to actor- network theory Oxford University Press, Oxford Leclerc C and d’Eeckenbrugge G C 2012 Social organization of crop genetic diversity. The G ¥ E ¥ S interaction model Diver- sity 4 1–32 Louette D, Charrier A and Berthaud J 1997 In situ conservation of maize in Mexico: genetic diversity and maize seed manage- ment in a traditional community Economic Botany 51 20–38 Maffi L 2001 Language, knowledge, and indigenous heritage rights in Maffi L ed On biocultural diversity: linking language, knowledge, and the environment Smithsonian Institution Press, Washington DC 412–32 Maffi L and Woodley E eds 2010 Biocultural diversity conserva- tion: a global sourcebook Earthscan, London Marx K 1974 [1887] Capital: a critical analysis of capitalist pro- duction Engels F ed Moore S and Aveling E trans Lawrence and Wishart, London McAfee K 1999 Selling nature to save it? Biodiversity and the rise of green developmentalism Environment and Planning D: Society and Space 17 133–54 McGuire S J 2008 Securing access to seed: social relations and sorghum seed exchange in eastern Ethiopia Human Ecology 36 217–29 McNay L 2008 Against recognition Polity Press, Cambridge Moeller N 2010 The protection of traditional knowledge in the Ecuadorian Amazon: a critical ethnography of capital expan- sion Unpublished PhD thesis, University of Lancaster Nicolson A 2009 Arcadia: England and the Dream of Perfection Harper Perennial, London Norgaard R 2010 Ecosystem services: from eye-opening meta- phor to complexity blinder Ecological Economics 69 1219–27 Pagiola S, Arcenas A and Platais G 2005 Can payments for environmental services help reduce poverty? World Develop- ment 33 237–53 Perrot-Maître D 2006 The Vittel payments for ecosystem serv- ices: a ‘perfect’ PES case? International Institute for Environ- ment and Development (IIED), London Pistorius R 1997 Scientists, plants, and politics: a history of the plant genetic resources movement International Plant Genetic Resources Institute, Rome Plumwood V 2006 The concept of a cultural landscape: nature culture and agency in the land Ethics and the Environment 11 115–50 Rawls J 1999 [1971] A theory of justice Harvard University Press, Cambridge MA Rege J E O and Gibson J P 2003 Animal genetic resources and economic development: issues in relation to economic valu- ation Ecological Economics 45 319–30 Robinson D F 2010 Locating biopiracy: geographically and cul- turally situated knowledges Environment and Planning A 42 38–56 Roe D, Oviedo G, Pabon L, Painter M, Redford K, Siegele L, Springer J and Walker-Painemilla K 2010 Conservation and human rights: the need for international standards IIED Briefing May Schipper J, Chanson J S, Chiozza F, Cox N A, Hoffmann M, Katariya V, . . . & Hammond P S 2008 The status of the world’s land and marine mammals: diversity, threat and knowledge Science 322 225–30 130 Global environmental justice and biodiversity conservation The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013 © 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) Schlosberg D 2004 Reconceiving environmental justice: global movements and political theories Environmental Politics 13 517–40 Schlosberg D 2007 Defining environmental justice: theories, movements and nature Oxford University Press, Oxford Schroeder R 2008 Environmental justice and the market: the politics of sharing wildlife revenues in Tanzania Society and Natural Resources 21 583–96 Schroeder D and Pogge T 2009 Justice and the convention on biological diversity Ethics & International Affairs 23 267– 80 Secretariat of the CBD 2010 A new era of living in harmony with Nature is born at the Nagoya Biodiversity Summit Press release, 10th Conference of Parties (www.cbdint/doc/press/ 2010/pr-2010-10-29-cop-10-enpdf) Accessed 7 January 2011 Smale M and Day-Rubenstein K 2002 The demand for crop genetic resources: international use of the US national plant germplasm system World Development 30 1639–55 Spash C L 2010 The brave new world of carbon trading New Political Economy 15 169–95 Sullivan S 2006 The elephant in the room? Problematizing ‘new’ (neoliberal) biodiversity conservation Forum for Development Studies 33 105–35 Sullivan S 2011 Conservation is sexy! What makes this so, and what does this make? An engagement with celebrity and the environment Conservation and Society 9 102–13 Svarstad H 1995 Biodiversity prospecting: biopiracy or equitable sharing of benefits? Oslo Centre for Development and the Environment, University of Oslo ten Kate K and Laird S A 1999 The commercial use of biodiver- sity: access to genetic resources and benefit-sharing Earthscan, London Terborgh J W 1999 Requiem for nature Island Press, Washington DC Thompson E P 1977 Whigs and hunters: the origin of the Black Act Penguin Books, London UNEP 2011 Working towards sustainable development: oppor- tunities for decent work and a green economy (http:// www.ilo.org/wcmsp5/groups/public/—ed_emp/—emp_ent/ documents/publication/wcms_181836.pdf) Accessed 7 June 2012 UNEP/IUCN 2007 Developing international payments for eco- system services: towards a greener world economy (www.unepch/etb/areas/pdf/IPES_IUCNbrochure.pdf) Accessed 23 September 2010 Vermeylen S and Walker G 2011 Environmental justice, values and biological diversity: the San and the Hoodia benefit sharing agreement in Carmin J and Agyeman J eds Environmental inequalities beyond borders: local perspec- tives on global injustices MIT Press, Cambridge, MA 105– 28 Vincent A 1998 Is environmental justice a misnomer? In Boucher D and Kelly P eds Social justice: from Hume to Walzer Routledge, London 120–40 Viveiros de Castro E 2004 Exchanging perspectives: the transfor- mation of objects into subjects in Amerindian ontologies Common Knowledge 10 463–84 Walker G 2012 Environmental justice: concepts, evidence and politics Routledge, London WCS 2009 Conservation and human rights: a framework for action 18 October (http://cmsdata.iucn.org/downloads/hr_ framework_wcs_1.pdf) Accessed 1 February 2013 Whiteman G 2009 All my relations: understanding perceptions of justice and conflict between companies and indigenous peoples Organization Studies 30 101–20 Wilson EO ed 1988 Biodiversity National Academy Press, Wash- ington DC Wittemyer G, Elsen P, Bean W T, Burton A C O and Brashares J S 2008 Accelerated human population growth at protected area edges Science 321 123–6 Workshop Report 2012 Rights-based approaches to REDD+: report of a conservation initiative on Human Rights Workshop, Lima, Peru 24–26 January 2012 (https://community.iucn.org/ cihr/Resources/CIHR-REDD+WorkshopReport.pdf) Accessed 7 June 2012 World Bank Group 2012 Toward a green, clean, and resilient World for all: a World Bank Group environment strategy 2012– 2022 (http://siteresources.worldbank.org/ENVIRONMENT/ Resources/ENV_Strategy_Summary.pdf#Page=10) Accessed 6 June 2012 Wunder S 2008 Payments for environmental services and the poor: concepts and preliminary evidence Environment and Development Economics 13 279–97 WWF 2008 Indigenous peoples and conservation: WWF state- ment of principles WWF International, Gland WWF 2010 Living Planet Report 2010 (http://awsassets. panda.org/downloads/wwf_lpr2010_lr_en.pdf) Accessed 1 February 2013 Zalasiewicz J, Williams M, Steffen W and Crutzen P 2010 The new world of the Anthropocene Environmental Science & Technology 44 2228–31 Zimmerer K 2009 Biodiversity in Castree N, Demeritt D, Liver- man D and Rhoads B eds A companion to environmental geography Wiley-Blackwell, Chichester 50–65 Global environmental justice and biodiversity conservation 131 The Geographical Journal Vol. 179 No. 2, pp. 122–131, 2013© 2013 The Authors. The Geographical Journal © 2013 Royal Geographical Society (with the Institute of British Geographers) 
work_rlxyb5jcivfcbdgdgzyvwess5u	----	cover final Sen’s Idea of Justice versus Rawls’ Theory of Justice Sebastiano Maffettone* In ‘The Idea of Justice’, Amartya Sen presents an alternative approach to Rawls' theory of justice. The core argument is reformulated as a criticism of the neglect (by Rawls) of what Sen himself calls ‘nyaya’ in favour of the opposite ‘niti’. According to Sen, Rawls' niti-centred approach, being merely institutional, under-estimates the necessary combination of just institutions and correspondent actual behaviours that make a society reasonably just. Sen consequently champions the opposite nyaya-centred approach, according to which ‘what happens to people’ must be a central concern for a theory of justice. To my advice, this argument is dependent on Sen’s old idea, according to which the ‘primary goods’ basis of Rawls' approach to distributive justice is flawed and must be substituted by an approach in terms of capabilities. I instead think that the capability approach to a general theory of justice presents both epistemic and ethical problems of paramount importance. These problems are similar to the ones created by the necessity to rely on interpersonal comparisons when we move within the utilitarian tradition. Keywords: The Idea of Justice, Amartya Sen, John Rawls In his recent book, The Idea of Justice1, Amartya Sen presents a new theory of justice in polemics with the mainstream tradition. Sen’s book is an enormously wide- ranging work and the domain of theories of justice that he refers to is complex and differentiated. There is no doubt, however, that the tradition of theories of justice that Sen has in mind has been inaugurated and dominated by the political philosophy of John Rawls. Therefore, it seems correct to conceive this book as an attempt to construct an alternative approach to Rawls' theory of justice. One could say that Sen tries to make a similar critical move against Rawls which the latter undertook, quite successfully, against utilitarianism in A Theory of Justice. In other words, Sen here attempts to put forward an alternative to the dominant theory of justice by critically engaging with it. Sen himself recognizes that Rawls' has been ‘the most influential theory of justice in modern moral philosophy’ (p. 59) and the second chapter of this book is devoted to ‘Rawls and Beyond’ (with the first chapter being mainly methodological). That is why it seems natural to assess the success of Sen’s account in terms of the significance and effectiveness of his criticism of Rawls. To put it in the simplest way, did he present in this book a theory of justice, which shows Rawls' limitations in being able, at the same time, to exhibit a more powerful alternative. My answer to this question is ‘No! He didn’t.’ The negative answer is, however, only partially negative. In fact, I think that Sen provides many arguments against Rawls' theory of justice, some of which rather persuasive. To be less vague, from my point of view, the core argument that Sen uses Indian Journal of Human Development, Vol. 5, No. 1, 2011 * Professor, LUISS University, Rome. Email: maffettone@gmail.com 120 Indian Journal of Human Development against Rawls is not satisfying, but there are side arguments that can provide useful re-adjustments from within the Rawlsian paradigm and maybe even beyond it. This core argument is elegantly reformulated as a criticism of the neglect (by Rawls) of what Sen himself calls in Sanskrit nyaya—following an Indian legacy—in favour of the opposite niti. The niti–nyaya distinction ranges over (at least) two disagreements. The first disagreement concerns the difference between the transcendental and the comparative: Rawls discusses what a perfectly just society should do, whereas for Sen, the most important problems that we need to confront are comparative problems, concerning ways of moving toward societies that are less unjust. The second disagreement concerns the role of institutions: for Rawls, justice is essentially about institutions and the particular distributions of goods are derivatively just if they are produced by just institutions; Sen, on the contrary, thinks that justice is essentially about how well or badly off individuals actually are. I do not see particular difficulties with the first disagreement. It is possible to consider actual unjust situations from a transcendental standpoint. That is why I will concentrate on the second disagreement. According to Sen, Rawls' niti-centred approach, being merely institutional, under- estimates the necessary combination of just institutions and correspondent actual behaviours that make a society reasonably just. Sen consequently champions the opposite nyaya-centred approach, according to which ‘what happens to people’ must be a central concern for a theory of justice. To my advice, this argument is dependent on Sen’s old idea, according to which the ‘primary goods’ basis of Rawls' approach to distributive justice is flawed and must be substituted by an approach in terms of capabilities, even if curiously enough, Sen seems to think that this distinction is not so basic (p. 66). I instead think that the capability approach to a general theory of justice presents both epistemic and ethical problems of paramount importance. But before analysing these problems, we need to take a detour, given the complex nature of Sen’s arguments against Rawls in this book. I. To be fair (if this word can be so naively used here), Sen recognizes that several positive lessons can be learnt from the Rawlsian approach. He also ends the book by arguing that he forcefully distanced his own argument from that of Rawls due to his academic habit of emphasizing distinctions more than affinities, but that his real intention is, after all, to follow a parallel path2. For Sen, the main positive lessons to be learnt from Rawls are connected with the following points: 1. The idea that fairness is central to justice; 2. The thesis about the objectivity of practical reason; 3. The distinction between the ‘reasonable’ and the ‘rational’, and more generally, the reconstruction of the moral powers of persons as related to their capacity for a ‘sense of justice’ and a ‘conception of the good’; 4. The separate and over-riding concern for liberty (as compared with other primary goods); 5. The insistence on a ‘fair equality of opportunities’ as an enrichment of the literature on inequality; Sen versus Rawls 121 6. The need for according special attention to the worst-off people; and 7. The way in which primary goods are conceived, which gives people the opportunity to do what they would like with their own lives. All these points permit us to say that Sen has in common with Rawls “an important shared involvement in being concerned with justice in the first place” (p. 413). There are, of course, certain critical points that Sen sees in Rawls' theory of justice. Also Sen offers numerous criticisms of Rawls, so much so that sometimes we find it difficult to understand wherein lies the true difference between these two authors. Sen starts by separating what he calls ‘problems that can be addressed effectively’ (p. 65), within the Rawlsian account, from what are defined as ‘difficulties that need fresh investigation’ (p. 66). This distinction implies that the problems in the first category can be re-elaborated within the Rawlsian scheme whereas those in the second category cannot and need an alternative approach. Among the problems in the first category, the following two deserve special attention: 1. The extreme nature of the priority of liberty as conceived by Rawls, and already emphasized by Herbert Hart shortly after the publication of A Theory of Justice. There can be some priority of liberty but not total unconstrained priority. Here the example—presented by Sen on p. 65—of hunger and starvation considered as being worse than a loss of liberty seems inappropriate, because in order to attain Rawls' principles of justice one needs to have realized the so-called ‘circumstances of justice’ that include moderate scarcity. Given that moderate scarcity is an ambiguous expression— raising the question as to whether rural India reaches the line of moderate scarcity—one should remember that Rawls makes the priority of liberty depend on a minimum average economic well-being of the population. This implies that the priority of liberty does not apply where conditions of hunger and starvation are normal. 2. The fact that Rawls does not provide a way by which primary goods can be converted into good living. In this sense, for Sen, capabilities work better than primary goods, albeit not representing a ‘foundational departure’ (p. 66) from Rawls' programme. This last comment seems an understatement in the light of Sen’s whole argument against Rawls. Of course, the hard core of Sen’s criticism is supposed to rely on the difficulties which cannot be solved within the Rawlsian paradigm. Among them we can list the following difficulties: 1. The relevance of actual behaviour which Rawls is supposed to under-estimate. This problem depends on the strong institutionalism that according to Sen, Rawls is committed to. His theory of justice sees the ‘basic structure of society’ as its primary subject. As a consequence, the emphasis is on just institutions rather than on a ‘just society’, with the latter being linked to the actual behaviour of people. As we have already seen, this problem can be also placed in terms of a distinction between a niti approach (Rawls) and a nyaya approach (Sen); 122 Indian Journal of Human Development 2. The contractualist approach, which tends to be too limiting (here, I would prefer to apply the term ‘contractualist’ to ‘contractarian’, used by Sen, for the Kant– Rawls tradition, leaving the term ‘contractarian’ for Hobbes’ tradition). Sen claims that the contractualist tradition cannot accommodate the following significant possibilities: - Dealing with comparative assessments instead of identifying transcendental solutions; - emphasizing social realizations (beyond institutionalism); - accepting incompleteness in social assessments (a partial ordering can also be alright), and removing manifest cases of injustice on this basis; and - considering voices beyond the contractualist group that avoid parochialism. 3. The last point listed in (ii) above implies laying a stress on the relevance of global perspectives beyond all that constrains the pursuit of justice within the limits of a determined polity. Sen pursues all the above criticisms in a long and often detailed manner, which makes it practically impossible to make proper sense of all them here. Still, the most relevant accusations against Rawls can conflate within the niti–nyaya distinction: it is not possible to identify just institutions without making them contingent on the actual behaviour of people. This is, in fact. the reason why Sen’s readers are invited to firmly reject Rawls' transcendental institutionalism in the name of Sen’s realization-focused comparativism (p. 7). It is also interesting to note that some form of anti-institutionalism is typical within the scope of political theory as practised in the Indian academic world. The premise could be either that a weak civil society needs care before entering into the political domain or that institutions recall the State and that the State is seen by many Indian authors as a byproduct of colonialism. II. It is indeed hard to make a choice between transcendental institutionalism and realization-focused comparativism because, as I said, Sen inflates his thesis with an enormously large number of arguments (whose total is supposed to count against that by Rawls). This makes it extremely difficult to adjudicate the case. For example, it is doubtful to say, as Sen does, that transcendental institutionalism makes the relevance of the global impossible, given that there are many authors like Thomas Pogge, who are simultaneously globalist and institutionalist. The idea according to which democracy as the exercise of public reason (that is the way in which Sen defines democracy) is excluded by the Rawlsian approach is also highly questionable. This criticism originates in a well-known criticism by Habermas of Rawls, as elaborated by the 1995 exchange between the two in the Journal of Philosophy. Elsewhere, I have tried to show how controversial Habermas’ point is and how it can also be transitively extended to Sen’s point (see Habermas, 1995, pp. 109-31; Maffettone, 2010, chapter 7). Finally, Sen’s main criticism—the one based on the niti–nyaya distinction—seems to put together the following three different arguments: 1. A kind of anti-institutionalism à la G.A. Cohen; 2. A thesis against Rawls' purely ideal theory-based approach; and Sen versus Rawls 123 3. The idea that ‘resourcism’ is insufficient because we should rather consider the resources–persons relationship (this is similar to the classical capabilities versus primary goods argument, as made by Sen). It is also worth noting that the Cohen-like approach—as per point (i) above— requires more ‘ideal theory’ and less connection with the facts (it requires facts-free principles). It thus goes in the opposite direction of the claim for realism made under point (ii) above. However, my remarks here are not intended to minimize the impact of Sen’s arguments. It is probably true that a social contract approach à la Rawls makes global legitimation hard. And the strong liberal institutionalism of Rawls can actually make the integration with democracy as deliberation more difficult than necessary. On this last point, Sen devotes a whole chapter to show how the social choice-based approach is much better than the social contract approach. Frankly, I doubt whether Sen has demonstrated here that the social choice theory and democratic deliberation go so well together, but again this is not the real focus of the controversy, which, I repeat, corresponds to the niti–nyaya distinction mentioned above. Sen’s main criticism stands or falls with it. That is why in the following discussion, I will try to reduce Sen’s mountain of criticisms against Rawls to a smaller but decisive problem. In so doing, my intention is to show that the therapy (Sen’s alternative) creates more problems than the initial supposed disease (Rawls' position). III. In order to proceed in this direction, I claim that the first two parts of Sen’s pro- nyaya anti-niti argument can be substantially reduced to the third one: Cohen’s anti-institutionalism and the objections to a mere ideal theory-based approach, are dependent on—and anyway secondary to— the ‘resources’ versus ‘resources related to people’ (id est capabilities) thesis. In other words, both these criticisms converge into the third, according to which Rawls defends institutionalism too easily by making extremely strong assumptions on the post-contract behaviour of the persons and assumptions that are less strong than necessary on the pre-contract attitudes. This erroneous path can be avoided only by taking persons seriously in a more direct way. To sum up all these arguments, and to reduce them to one, we could say that Sen’s main disagreement with Rawls lies in the thesis that fairness should also properly apply to persons whereas Rawls' principles apply only to institutions. And this is exactly why the capability thesis reproaches the resourcist approach à la Rawls. If we look at Chapter 12 of this book, entitled ‘Capabilities and Resources’, we can see how this opposition is relevant for Sen. Here, resources are considered as being analogous to wealth, with both being “not something we value for its own sake” (p. 253). Capabilities, on the other hand, being linked with substantive freedom, focus on the actual ability to do different things that a person values. For example, a person with a large amount of wealth cannot be considered advantaged if she suffers from a severe disability. Rawls's primary goods—and more generally all resourcist approaches— are for Sen ‘feticist’ because they wrongly consider primarily means where they should rather consider ends. For Sen, this mistake becomes transparent if we examine 124 Indian Journal of Human Development poverty. Poverty cannot be properly understood just in terms of income (or wealth, for that matter). Of course, an index of primary goods represents a vector, which is why it includes more than income (or wealth), but its analysis is still guided by a ‘search for general all purpose means’ (p. 254). Sen claims that this is wrong because what really counts is the way in which different persons convert income or primary goods (more generally, resources) into good living. thus, poverty is contingent upon the different characteristics of people and of the environment in which they live. Disabilities constitute another relevant example because they clearly point to a difficulty in the conversion of resources into capabilities. Poverty and disabilities instantiate an evident ‘conversion handicap’ (p. 258). The thesis, however, aims to be more general, and does not apply only to them. This thesis makes Sen sceptical about Rawls' difference principle, which notoriously concentrates upon primary goods to settle distributional issues. The idea here is that even if Rawls recommends—in line with a ‘principle of redress’—correctives for ‘special needs’, this is not enough because the problem of the conversions of primary goods (and generally resources) into good living is structural and ubiquitous. That is why this very problem implies a “departure from Rawlsian theory” (p. 262). This departure is directed toward a theory—like the capability theory (unlike that in resourcism)—in which the focus is on the ends rather than the means. Given these premises, it is not surprising that Sen—in Chapter 13—takes into consideration happiness in its relationship with well-being and capabilities. In fact, here we have a kind of utilitarian turn, implied by Sen’s main argument (that is, the nyaya versus niti argument). After all, the main characteristic of utilitarianism consists in focusing on the relationships between goods and persons, whose psychological reactions in terms of happiness are what eventually count. Moreover, Sen stresses the importance of outcomes and realizations in opposition to Rawls's preference for the centrality of an interpersonal agreement. And such a difference approximates the traditional distinction between the utilitarian and contractualist outlooks. Sen indeed recognizes that the recent emphasis of economic science on happiness— with which he sympathizes—has origins in the once-dominant utilitarian tradition, and here the anti-Rawlsianism reaches its climax. He also points out that a “substantial part of welfare economics is still largely utilitarian” (p. 272). These admissions are not surprising, because if one is in search of ends rather than means, happiness is a plausible final destination, simply because it is by definition an ultimate goal. This conclusion prima facie seems to give us some advantage, but on reflection, it is difficult to ignore its inconveniences, which are epistemic and ethical–political, and can be summed up in the following contention—unless we know people’s values and tastes, which is improbable, there is a significant risk of paternalism when we consider happiness as the last word in this argument3. This is why –in A Theory of Justice, Rawls contrasts his liberalism with a liberalism of happiness, which is a kind of perfectionist and paternalistic vision. In the book, Sen himself admits the risk of paternalism, and also quotes Richard Layard in this sense (see Layard, 2005). It is also easy to observe Sen versus Rawls 125 that the happiness economics shares the danger of paternalism and consequently creates, for a liberal, problems that are analogous to the ones implied by utilitarianism (as shown by Rawls in A Theory of Justice). I will come back to the danger of paternalism later, a danger that I think is implicit not only in the very notion of happiness, but rather in the whole capability approach because here I prefer to focus on Sen’s trajectory in the book. Sen, in fact, seems alert about this danger, in particular when (pp 277 and ff) he tracks the origins of welfare economics in the desire to separate itself from utilitarianism. The reason for this desire can no doubt be found in the will to attain more epistemic abstinence, due to the fact that interpersonal comparisons of utility imply value judgments and are often difficult to assess. Sen easily dismisses by stressing that we normally compare “joys and pains of human life” (p. 277). What seems strange is that he does not consider the hypothesis that in so doing, he is here defending something (social choice plus interpersonal comparisons) that is similar to utilitarianism as opposed to Rawlsian liberalism. Of course, in order to distinguish his position from utilitarianism, Sen claims to be anti- welfarist, a position that he considers not narrowly confined to the utilities. But we are still within a utilitarian framework in the broad sense. Sen devotes a section (pp. 279 and ff) to the way in which welfare economics separated itself from utilitarianism, following Lionel Robbins’ first (epistemic) criticisms of utilitarianism. In this process, welfare economics took the form of the social choice theory à la Arrow, an approach that Sen masters better than anyone else. In his seminal book, Social Choice and Individual Values, Kenneth Arrow, quoted by Sen (p. 279), formulated the viewpoint according to which ‘interpersonal comparisons of utilities have no meaning’. This implies that the levels of utility or happiness cannot be compared among different people. And all these informational restrictions leave us—within the realm of welfare economics—with a set of decision procedures that are roughly similar to voting (p. 280). This conclusion implies that within classic welfare economics, we cannot make any use of the happiness metric to discuss inequality and equity. Sen does not accept this prudent conclusion. In order to avoid it, he reconsiders some of his own past work on collective choice theory, in particular the part in which he connected Arrow’s impossibility result to the meaninglessness of the interpersonal comparability within Arrow’s paradigm. Since the 1970s, Sen has given a strategy to take Arrow’s impossibility seriously and to look for devices that would enable us to avoid it. Within this strategy, enriching the informational basis of the collective choice procedure seems a necessary step. This move, of course, relocates us in proximity to the utilitarian tradition. However, Sen—and here he separates himself from full and simple utilitarianism—thinks that utilitarianism is not a good guide in this direction due to the fact that utilitarianism limits its informational apparatus to welfare information. Welfarism, however, is troubling for Sen, particularly because it neglects all information concerning freedom and agency. Moreover, the utilitarian calculus, based on happiness and desire fulfilment, can be unfair toward “those who are persistently deprived” (p. 282). These people can, in fact, cultivate adaptive preferences, tending to adjust their desires to 126 Indian Journal of Human Development actual circumstances to make their life more bearable. In this way, we cannot rely on the interpersonal comparisons of utilities based on their natural preferences. Sen points out that the very concept of capability is supposed to overcome this difficulty by taking into consideration well-being in the optics of substantive freedom. This result derives from the fact that for Sen, an assessment of capabilities must start with two important distinctions: firstly, between freedom and agency; and secondly, between freedom and achievement. This dynamics introduces procedural elements connected with fairness in an otherwise consequentialist (albeit not welfarist) paradigm. I do not doubt that taking note of agency achievements or agency freedom “shifts the focus away from seeing a person as just a vehicle of well-being” (p. 288), thereby permitting Sen a detachment from what could be generally interpreted as a quasi-utilitarian framework. But perhaps this is not the point. The problem here consists rather in seeing whether the shift Sen that takes from means to ends, from procedures to outcomes, from epistemic prudence to the acceptance of interpersonal comparisons, still allows one to remain immune to some of the risks that are usually connected with utilitarianism. Curiously enough, these risks have been stressed in the past by both Sen and Rawls. In Chapter 8 of his masterful book, Collective Choice and Social Welfare (1970), Sen faces the usual conundrum of avoiding Arrow’s impossibility by starting with problems of distributive justice from the point of view of the collective choice theory. His strategy is based on the idea of enriching the information available to the decision- makers. This enrichment of information is usually connected with the measurability of individual welfare (this measure can be ordinal or cardinal) and the interpersonal comparability of these judgements (that can either be admitted or not admitted in the calculus), not speaking here of the form of the function we take in consideration (see p. 118 and ff of Collective Choice and Social Welfare [CCSW]). In theory, we could enrich information in two ways: either by assuming cardinal measurability of the preferences or by allowing interpersonal comparability among the decision-makers. After a powerful demonstrative tour de force, however, Sen concludes that what really counts are interpersonal comparisons: even if we use the cardinal instead of ordinal measure, like Arrow did, Arrow’s impossibility is still there. “The crucial difference lies in introducing comparability” (CCSW, p. 124), which means, for example, that ordinal comparability can bypass Arrow’s impossibility whereas cardinal non- comparability cannot. Rawls' original maximin solution introduces a limited ordinal comparability whereas utilitarianism is in favour of complete cardinal comparability. Now, it seems that Sen’s argument for capabilities moves toward this second option. But, as Sen himself has shown many times, such informational basis is epistemically very demanding. The main problem with interpersonal comparisons is, however, not epistemic but rather ethical–political, at least if one moves within a broadly speaking liberal horizon. This is the reason why I spoke of paternalism. The large quantity of information that the nyaya approach requires is not usually available, and on many occasions, can be imposed from outside (actually this is so except in extraordinary cases, which I will Sen versus Rawls 127 come back to later). Such a conclusion makes us understand the main danger of this approach. If the nyaya approach implies a paternalistic imposition of preferences upon the individual decision-makers, then the autonomy of people is at risk. Obviously paternalism is at odds with liberalism. I am just stressing that Sen’s nyaya approach approximates paternalism, whereas a more prudent niti approach is more naturally coherent with liberalism. This conclusion is not particularly surprising, if not for other reasons than because Rawls timidly formulated a similar analysis in Political Liberalism, and Sen himself partly recognizes such a danger in this book. In the Lecture V of Political Liberalism, Rawls aims to show that the choice of an index of primary goods as a reference for his own second principle of justice depends on what he calls a ‘political conception’. The political conception that Rawls has in mind is a liberal conception whose fundamental goal consists in defending pluralism within the limits of stability. Within this perspective, justice as fairness has to reject “the idea of comparing and maximizing overall well being in matters of political justice” (Political Liberalism [PL], p 188). This is why primary goods imply some general means that are able to satisfy the needs of citizens when questions of justice arise. Such a construct depends—within a liberal political conception like that of Rawls—on a thin theory of the good, with the intention of preserving the (liberal) autonomy of the citizens. To do otherwise would imply the use of a comprehensive doctrine, which is exactly what a political conception à la Rawls is supposed to avoid. Now, there is no doubt that an index of primary goods like that of Rawls “does not approximate very accurately what many people must want and value as judged by their comprehensive views” (PL, p. 189). But here incompleteness is the price we pay for neutrality. The trade-off between liberty and preference satisfaction is meant to avoid paternalism within the political ambit. It presupposes—as Rawls says—“a social division of responsibility” (PL, p. 189), within which the political sphere provides general omni-potential means while the rest—including some very significant ends—are left to individuals and associations. To do otherwise—as every liberal person knows—would imply politically imposing, via coercion if necessary, what are perhaps important but surely controversial ends. Putting it bluntly, to claim that politics should pursue fundamental ends would be to misrepresent politics like a form of applied ethics. This is not so, within a liberal political conception like that of Rawls, in which the priority of the political makes it partially independent from the claims of ethics. Only individual persons, and their free associations, and not political institutions, can take responsibility for their ends. In his book, Sen is not unaware of this problem, even if he under-estimates its ethical–political relevance. In Chapter 14 of the book, he uses the capability approach to comparatively assess the well-being of persons. This leaves room for many other, mainly procedural, concerns. In a footnote (p. 297), Sen also includes among these other concerns, which are, according to himself, part of Rawls' conception, “personal liberties and the need for fair procedures”. Fair enough! one could say, if not for the fact that there could be a conflict between the general logic of the capability approach and 128 Indian Journal of Human Development these other concerns. According to Sen (and again the reference here is to Rawls' theory of justice), “the contrast between primary goods and capabilities is in a limited arena” (p. 299) and only there. The rest, in particular the status of liberty and the demands of procedural fairness, can be left to Rawls' theory. Now, my question is: Is this possible and plausible? Perhaps not. The very logic of capabilities could be in conflict with the logic of political liberalism, due to the fact that political liberalism requires one to avoid the interpretation of people’s ends. Sen, via capabilities, transforms (in part) politics into a form of applied ethics wherein the good dictates the nature of the right. This is more or less like what the utilitarians do, and that is at odds with liberalism. This is also the reason why Sen’s nyaya-based approach in the end runs the risk of paternalism. IV. Having said all this, I must admit that, even if I remain unconvinced by Sen’s general argument, there is still a part of it that could well integrate a liberal vision like that of Rawls. My thesis presupposes that people’s preferences and desires, especially if we have in mind large numbers, are generally opaque. Perhaps you can successfully try to share some of your goods among your offspring, assuming that in this case, you have a deep personal knowledge of the people concerned. However, to operate in a similar way with the entire population of a polity, for example if you were the Ministry of the Treasure, when one would be working under a “thick veil of ignorance”, would preposterous and risky. This is why any effort to try to realize ends where people are concerned, such as comparing their different tastes and values via politics—like Sen wants—implies some form of paternalism and can be taken as being anti-liberal. However, it is not always so. There are cases in which the desires and preferences of people do not look like opaque. If you think of situations of hunger and starvation or severe diseases, you understand why. In such cases, people’s desires and preferences are usually transparent: they just want food and to be cured. Here, it is easy and not paternalistic to guess what people want and consequently to argue that we should try to help them convert their needs into new substantive opportunities. Sometimes, it could even be wrong to try not to interpret people needs: for instance, if one were to arrive at Dachau in 1945, it would not need a special ability to understand that prisoners must be helped! This is another way of saying something more general: that to make public sense of interpersonal comparisons, we need some a priori consensus, like when ‘urgency’— to use a well-known term of Thomas Scanlon—is at the stake. When we make interpersonal comparisons, we compare the goodness of the individual i in situation A with the goodness of the individual j in situation B. The question here concerns the way in which judgements of this type must be conceived. The problem with utilitarianism in assessing these judgments lies in its dependency on the subjective experiences of i and j. We are familiar with examples in which i is depressed whereas j is a sort of utility monster. All these imaginary possibilities render the utilitarian way of making interpersonal comparisons arbitrary from a public point of view. This impression forces the thesis that we should rely on some objective standard other than the simple preferences of i and j themselves. Sen versus Rawls 129 This is why public justification via interpersonal comparisons presupposes urgency, and (only) when there is urgency can we grasp the meaning of people conversion handicaps, and consequently, we can accept the idea that, for instance, disabled and hungry persons should be given more adequate “functionings” to live with. Here, the capability approaches work by avoiding the danger of paternalism4. In this light, it is not surprising that many of the examples cited by Sen concerning the limits of resourcism come from cases wherein we are confronted with persons who are affected either by severe diseases or by extreme poverty. The conclusion of the last paragraph offers the possibility of a reconciliation between the two paradigms that I have been discussing, namely those of Rawls and Sen. We can draw an imaginary line that separates the ‘normally cooperating members of society’ (Rawls) on one side from persons who are not so lucky, on the other side. Above this line, people can well be treated by liberal political theories à la Rawls. Underneath this line, however, it is not so. People living clearly underneath the line are doing so in conditions of ‘urgency’, and, therefore, deserve special attention, and for them liberal neutrality is not enough. The notion of ‘urgency’ or ‘importance’ implies a criterion through which we can objectively discriminate among strong preferences. Thomas Scanlon describes rather than defines urgency in terms of comparability among goods and satisfactions connected with them. For example, health is more important than amusement. Together with health and amusement, we have other concerns, and we can hypothesize in associating with them a multi-level scale wherein various combinations of such levels represent different levels of well-being. “The relation of urgency, then, will be a relation between various increments and decrements along one or more of these scales” (see Scanlon, 2003a.). Again Scanlon, commenting on the nature of (Rawlsian) contractualism, writes that “under contractualism …our attention is naturally directed first to those who would do worst” (see Scanlon, 2003b). He also presents this moral option of contractualism in contrast with the nature of utilitarianism, because the ‘losers’ are not sufficiently cared for within any utilitarian maximization of aggregate well-being. Rawls himself indeed goes in this direction when in Political Liberalism (pp. 184 and ff) he tries to meet Sen’s challenging objections to his own view of primary goods. But he never generalizes this thesis. The notion of urgency seems to be an attractive bridge between the views of Rawls and Sen. Urgency is presented by Scanlon under the edge of a doctrine that is capable of comparatively assessing benefits and burdens from the point of view of political morality. Thus conceived, this doctrine is required to satisfy the following three properties: (I) it must represent a kind of consensus among those to whom justification is addressed; (ii) it must allow for the fact that individuals have different tastes and interests; and (iii) it must be result-oriented. For Scanlon, such a doctrine cannot be formulated in terms of subjective criteria like many utilitarian would do so while basing their models on preference satisfaction. On the contrary, it requires an objective criterion that is coherent with our objective idea of moral judgement. Of course, we are required to declare on what basis we can discriminate among preferences of different persons. Urgency is one of these required bases. Urgency, as we have seen, is assessed 130 Indian Journal of Human Development in terms of increments or decrements along the different scales on which we locate our concerns. The idea is that once we begin to understand the desirability of the benefits and the in-desirability of the burdens at stake, we can create a “hierarchy of relative urgency” Interestingly enough, this conception of urgency is rather like nyaya to use Sen’s terminology, in the sense that it depends on the comparisons among different lives in various contexts. Moreover, the example given by Scanlon focuses on those with “expensive medical needs” (see Scanlon, 2003a), which is altogether coherent with Sen’s vision. More generally, one could say that Rawlsian institutionalism can work like an obstacle when frontier questions (concerning the disabled, foreigners) are at stake. Take, for instance, global justice, an issue that Sen emphasizes. Here, the difficulties of a liberal Rawlsian paradigm—made evident by Thomas Nagel—derive from the necessity of this paradigm to neatly separate ethics from politics (see Nagel, “The Problem of Global Justice”, 2005, reprinted in Nagel, Secular Philosophy and the Religious Temperament, 2010). Within a Rawlsian view, political justice, that is, the main business of the theory, must be coherent with the basic structure of the society that it addresses. With this basic structure comprising a network of institutions, political justice presupposes reliable institutions. In the global domain, however, institutions are often not reliable from the point of view of justice. This makes the ethical appeal, which is implicit in the idea of justice, contrast with its political basis. While we know that global justice is needed, we do not know how to make it properly political.5 Sen indicates that the nyaya path can function here as a strategy emanating from our ethical intuitions, which are supposed to be in favour of global justice, to the construction of a renewed basic structure that is more coherent with global justice than the actual one. Sometimes, ethical evidence must anticipate the political structure. This applies, in a vague and provisional sense, whenever human inter-subjective relations create substantive problems of justice that are unable to receive an immediate institutional response. It is extremely pertinent in case of urgency (think, for instance, of the Holocaust). For a Rawlsian liberal, global justice signifies a case that fits the dialectics between ethics and politics that I have been alluding to. The indication we can draw from Sen is that in all these cases, we should take serious consideration of the relation between human needs—presupposing lives in contexts—and institutions. We could also investigate further and more general (going beyond urgency) possibilities of reconciliation between the paradigms of Rawls and Sen that I have discussed. While thinking of them, it is difficult to avoid the impression that Rawls' theory of justice comes from a wealthy nation, and is inevitably tied to its US origins. In a country like the US, protecting liberty as an individual choice is perhaps more important than elsewhere, for example, it could be more important than in rural India or Africa. This implies that whenever we expand the original Rawlsian paradigm from the US setting to other parts of the globe or to a particular region within it, we should be more careful in redesigning the relation between persons and institutions. This is, after all, what Sen recommends. It is almost superfluous to say that my intention in saying this is not to transform political theory in a kind of sophisticated moral Sen versus Rawls 131 geography. It is rather an invitation to take history and tradition more seriously than many analytically trained political theorists usually do. I imagine indeed that such an argument would be coherent not only with Sen (from whom it is derived) but also with Rawls. If we carefully consider Rawls' vision of justice, we would note that the foundational concept of the basic structure must not be an invariant. It is rather a historical notion that presupposes a strong link between civil society and institutions. Finally, the social contract strategy à la Rawls proposes an objective criterion to discriminate among the preferences of different people. This criterion can be based on a hierarchy of relative urgency and can also be made wide enough to include a set of frontier situations. In difficult circumstances, we can comparatively assess people’s well-being in terms of nyaya, but coherently with a general liberal outlook. But, for the rest, we need to reject neither institutionalism nor contractualism. Perhaps, we can also use—albeit in quite a vague way—the nyaya approach to expand the possibilities associated with a too severe institutionalist approach in the direction of a more human centred view. Perhaps when we want to extend the natural ambit of Rawls' theory of justice, by applying it to problems of global justice, we must follow nyaya, or at least reformulate the fundamentals of the theory from the point of view of relations between people and institutions. In the light of Sen’s often inspiring book that I have been discussing, one could conclude by saying that even if a liberal should be normally coherent with a niti-based view, there are significant categories classes of cases in which it is not so and a liberal should become more coherent with a nyaya-based view. ACKNOWLEDGEMENTS I thank Luciano Andreozzi, Gianfranco Pellegrino and Aakash Singh for their precious comments on the first version of this paper. The paper has been elaborated in view of a discussion held at the India International Centre in Delhi on 12 January 2011. I thank Akeel Bilgrami and Neera Chandhoke for this discussion. The paper has also been presented, in part, at Baruch College (CUNY, New York) on 24 February 2011 and at San Diego State University on 28 February 2011. I thank Benedetto Fontana and Darrell Moellendorf for their invitation to present the paper and for their comments. Finally, I would also like to thank Ronald Dworkin and Joshua Cohen, as informal discussions with them also contributed to the final version of the paper. NOTES 1. Sen confronts himself with Rawls, whose main works considered here are A Theory of Justice, 1971, and Political Liberalism, 1996 (second edition). 2. In some way, here—like in the rest of this book—Sen’s attitude toward Rawls is ambiguous: one never understands how much Sen is willing to distance his own approach from that of Rawls. 3. To be analytical, one should clearly separate the epistemic and the ethical–political side of paternalism. Unfortunately, such an internal distinction is not easy. It would, in fact, be complicated to go within the analysis of the epistemic side of the problem (one can get some help by reading Feldman, 2010) and would require elements of empirical psychology. In his Political Liberalism, Rawls, rather vaguely, connects the ‘burdens of judgments’ with pluralism. Here, I limit myself by arguing that we can assume some relation between the two aspects—epistemic and ethical– political—of paternalism by going within the argument. I hope that this strategy can be forgiven, if one considers that I am not particularly interested here in the epistemic side of the issue. 132 Indian Journal of Human Development 4. Perhaps we should distinguish between two different forms of paternalism. On one hand, we can have paternalism toward the victims, like for example, starving or disabled people. On the other hand, we can have paternalism toward the normal citizens, for example, if they are obliged to pay taxes to help starving or disabled people. In the second case, the risk of paternalism implies the compulsory transformation of a super-erogatory sentiment in an obligation, and consequently, runs the risk of over-demandingness. 5. Rawls himself says in A Theory of Justice, pp. 352-53, that when circumstances of justice are not realized and we are in severe distress, contractualism becomes very similar to utilitarianism. REFERENCES Arrow, Kenneth (1979). Social Choice and Individual Values, North Holland, Amsterdam. Feldman, F. (2010). What Is This Thing Called Happiness?, Oxford University Press, Oxford. Habermas, J. (1995). “Reconciliation through the Public Use of Reason: Remarks on John Rawls' Political Liberalism”, Journal of Philosophy, Vol. 92, No. 3, March, pp. 109-31. Layard, R. (2005). Happiness: Lessons from a New Science, Penguin, New York. Maffettone, S. (2010). Rawls: An Introduction, Polity Press, Cambridge. Nagel, Thomas (2005). “The Problem of Global Justice”, Philosophy and Public Affairs, Vol. 33, No. 2, pp. 113-47. —— (2010). Secular Philosophy and the Religious Temperament Essays 2002-2008, Oxford University Press, Oxford. Rawls, John (1971). A Theory of Justice, Harvard University Press, Cambridge, MA. —— (1996). Political Liberalism, Columbia University Press, New York. Scanlon, Thomas (2003a). “Preference and Urgency”, in Thomas Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy, Cambridge University Press, Cambridge, pp. 70-83. Scanlon, Thomas (2003b). “Contractualism and Utilitarianism”, in Thomas Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy, Cambridge University Press, Cambridge, pp. 124-50. Sen, Amartya (1970). Collective Choice and Social Welfare, North Holland, Amsterdam. —— (2009). The Idea of Justice, Penguin, London. front 06-Sebastiano Maffettone back 
work_rm5r2qtnbng7voourtgf4uegne	----	Apology, Justice, and Trauma Recovery Cheryl Regehr, PhD, and Thomas Gutheil, MD J Am Acad Psychiatry Law 30:425–30, 2002 On November 22, 2001, Pope John Paul II, in his first e-mail message to the world, apologized to vic- tims of sexual abuse perpetrated by priests. In his message, the Pope states: Sexual abuse by some clergy has caused great suffering and spir- itual harm to the victims. . . . Sexual abuse within the church is a profound contradiction of the teaching and witness of Jesus Christ. . . . The synod fathers wish to apologize unreservedly to the victims for the pain and disillusionment caused to them.1 He added that the church was “unequivocally com- mitted to compassionate and effective care for the victims, their families, the whole community and the offenders themselves.”1 We are, it seems, in an era of public apology. In the past few years, the Pope has apologized for the sins and injustices committed by the Catholic church, including wrongs inflicted on Jews, minorities, and women2; the Japanese govern- ment has apologized for atrocities committed in World War II; President Clinton has apologized for America’s history of slavery and for America’s sup- port of foreign dictators3; and the Canadian federal government has apologized for the executions of 23 Canadian soldiers during World War I, volunteers who were shot for desertion or cowardice.4 The move to public apology stems in part from a belief that public actions can cause personal pain. An aspect of this belief is the notion that apology is a necessary prerequisite to forgiveness and that forgive- ness in turn leads to recovery.5 A second aspect is an increased interest in restorative justice as an alterna- tive or adjunct to criminal sentencing or civil liabil- ity.6 This alternative process encourages offenders to take responsibility for their actions and to make res- titution, with the joint goals of assisting the victim in the healing process and reintegrating the offender into society.7 In this article, we seek to explore the issue of apol- ogy and justice within society and to consider the impact of these processes on the healing of individual victims. Defining Apology Although apology is a common part of our lan- guage of relationships, little has been written about the nature of apology and the elements that comprise it. Tavuchis8 suggests that when someone apologizes, he or she is in the position of seeking unconditional pardon in the context of being unworthy of an act that can be neither forgotten nor forsaken. Apology includes three main components: 1. Acknowledgment of the offense or provision of a truthful account of the offense so that the victim’s experience can be publicly verified.5 2. A willingness to admit wrongdoing or, in effect, issue a mea culpa (through my fault). To apologize is to declare voluntarily that one has no excuse, defense, justification, or explanation for the action.8 Implicit in this is the agreement to accept the consequences— social, legal, and otherwise—that flow from having committed the wrongful act.5 3. A willingness to state that the act will not be repeated—that is, to make a pledge (implicit or ex- plicit) to abide henceforth by the rules.8 Conse- quently, it is not acceptable to apologize for abusive behavior with the expectation that one will simply apologize again when the act is repeated. When any of these elements of apology is missing, the apology has been botched. The classic example of a botched apology, cited in many publications, is the Dr. Regehr is Associate Professor, Faculty of Social Work, and Direc- tor, Centre for Applied Social Research, University of Toronto, West Toronto, Canada. Dr. Gutheil is Professor of Psychiatry Co-Director, Program in Psychiatry and the Law, Massachusetts Mental Health Center, Harvard Medical School, Boston, MA. This paper was pre- sented at a symposium entitled “Redressing Historic Injustices: The Holocaust and Other Experiences,” Munk Centre for International Studies, University of Toronto, West Toronto, Ontario, Canada, Jan- uary 24, 2002. Address correspondence to: Cheryl Regehr, Faculty of Social Work, Centre for Applied Social Research, University of To- ronto, 246 Bloor Street, West Toronto, Ontario M6R 2W9. E-mail: Cheryl.regehr@utoronto.ca 425Volume 30, Number 3, 2002 A N A L Y S I S A N D C O M M E N T A R Y case of Richard Nixon, who, in his apology for Wa- tergate, failed to acknowledge the offense and justi- fied wrongdoing by suggesting it was for the greater good.5,8,9 Furthermore, although Mr. Nixon did not dispute the facts of Watergate, he suggested that his own acts were simply misjudgments and mistakes and his resignation was the price paid for an error, not for the commission of a crime.8 Such botched apologies include statements such as, “I am sorry you hurt,” rather than, “I am sorry I did that to you.”5 Apology, Justice, and Liability There is little room in the legal context for apol- ogy. Lawyers reflexively advise clients to refrain from making statements that suggest that they may in any way be responsible for harm, for fear that they may inadvertently accept criminal or civil responsibility for their actions.10 Because the courts do not accom- modate the concept of apology, a victim may obtain monetary compensation or see the offender jailed, but cannot expect an apology. This may leave victims with the sense that no one has acknowledged their pain. Indeed, a study by Des Rosiers et al.11 suggests that the primary desire of victims of sexual assault who pursue civil litigation is to be heard and to ob- tain an apology; most are severely disappointed. One commentator observed that “the time-honored priv- ilege against the incrimination of self has, in effect, morphed into a prescription against the consolation of others [in the legal context]” (Ref. 3, p 26). Concerns that the legal system thwarts effective apology have led some to suggest rewriting the rules of evidence to exclude some apologies as admissions by a party-opponent doctrine.3 That is, some advo- cates want to change the current rules in which an apology is seen as an admission of responsibility or culpability. At the present time in the United States, apology is considered inadmissible only if it falls un- der the Federal Rule of Evidence 408.12 In this situ- ation, there must be a dispute as to the validity of the claim or the monetary amount sought in damages, and the apology must be linked to an offer to com- promise.9 Two states have instituted bills that create “safe harbors” for apology.5 In Massachusetts, state- ments or writings to the family expressing sympathy for pain, suffering, or death of a victim are considered inadmissible as evidence of liability in a civil action.13 Similar legislation was more recently enacted in Texas. Taft,5 however, makes the important obser- vation that the creation of safe harbors undermines a key factor that supports the integrity of apology— that of willingness to take responsibility for the ac- tion. Further, the risk is raised that apology will be defined as merely a pawn in the power game, thus becoming part of another moral economy in which apology is used as a strategy.8 Apology is one means of acknowledging the suf- fering experienced by victims. An alternative method used in the courts is the victim impact statement. This in essence attempts to fulfill the second require- ment for an apology: forcing the offender to face the consequences of criminal actions, whether or not the offender accepts responsibility. In the civil context, problems arise because there is no way to measure whether awards for intangible injuries are reliable and valid.9 Questions are raised about whether finan- cial compensation constitutes public acknowledg- ment and acceptance of responsibility. The evidence does not suggest that financial compensation for in- tangible losses, especially for the pervasive and insid- ious effects of victimization, leads to healing and res- olution.7 An alternative argument in favor of payment of intangible damages is that they are a de- terrence, not compensation.9 In other words, society is attempting to fulfill the third requirement of an apology: the willingness to pledge that the act will not be repeated. In this way, not only may a partic- ular offender be deterred from committing the act again, but also others may be dissuaded from such action. When one considers the effects of punish- ment on deterrence in other contexts, however, the argument is not persuasive. Although they may not require an overt apology, criminal sentencing determinations acknowledge as mitigation the sincere expression of remorse and ac- ceptance of responsibility.9 As a further attempt to ensure that offenders take responsibility for the con- sequences of their actions, impact on the victim has arisen as a factor in court decisions. In civil law, which emphasizes compensating the victim, a conse- quentialist position is taken. That is, the monetary value of the judgment is based in part on the magni- tude of the outcome. Yet, the use of victim impact in sentencing in the criminal justice context is a matter of contention. The offender’s intention is a critical factor, and punishment is guided by normative esti- mations of the severity of the consequences for the victim.14 Although the seriousness of the crime is certainly an important factor in impact, individual strengths and vulnerabilities of the victim also lead Apology, Justice, and Trauma Recovery 426 The Journal of the American Academy of Psychiatry and the Law to traumatic outcomes.15–17 Hills and Thomson14 question why offenders with the same inten- tions, who commit the same crimes, should receive different sentences because the characteristics of the victims resulted in different psychological consequences. An alternative form of justice for violent offenses that is increasing in popularity is restorative justice, a term most often used to describe such informal and nonadjudicative forms of dispute resolution as vic- tim-offender mediation, family conferences, and ab- original forms of justice that promote joint decision- making power.6 The Supreme Court of Canada has embraced restorative justice as a legitimate form of sentencing, with its emphasis on acknowledgment of harm, reparation, and community sanctions.6 An ad- ditional component of the restorative justice model is the concept of disgrace and the belief that a defen- dant’s public acknowledgment of shame acts as both a punishment and a deterrent.18 Although this may appear to satisfy the three aspects of apology, Roach6 questions whether restorative justice satisfies the fun- damental principles of sentencing, including whether the sentence is proportionate to the serious- ness of the crime. As a result, victims may believe that their continuing safety has not been considered and that the magnitude of the crime has not been fully acknowledged. Further, in an attempt to embrace the concepts of contrition and apology, the courts may simply have created an expeditious means of avoid- ing imprisonment. Several other problems regarding the application of restorative justice remain unresolved. One such problem is that reparation politics often have a back- ward-looking dimension, promoting the cultivation of victimhood and cultural parochialism.19 Victims become dependent on the oppressor to engage in the process in a fair and meaningful way. In addition, at a time when many individuals and groups are seeking justice for historic atrocities, restorative justice runs the risk of creating an environment of competition, in which each group of victims must show themselves to be the most wronged and to have incurred the greatest damage. The implementation of restorative justice also makes many assumptions about victims regarding what is necessary for their healing and regarding their willingness to engage in the process. Society must ensure that we do not place the responsibility on the victim to ensure that an offender takes responsibility for his or her actions. In addition, it is important to assess whether the aims of restorative justice are in- deed directed more toward the benefit of the of- fender than the victim.6 Restorative justice supports perpetrators and encourages them to take responsi- bility for their actions, to make some sort of restitu- tion, and to reintegrate into society.7 This may cause distress for victims who view the perpetrator as re- ceiving equivalent or more support than they receive. Finally, it is important not to rush to include the requirement for apology in the restorative justice process on the assumption that the process and an apology will assist in the healing process. The thera- peutic value to the victim has yet to be determined.9 Statements can be found in the literature such as: “The evidence of victim satisfaction as a result of face-to-face confrontation with the offender and me- diation of a restitutionary response is overwhelming” (Ref. 20, p 858). However, reviews of research sup- porting these statements demonstrate significant problems with data collection and sampling.20 In addition, one must be cautious about equating satis- faction with the process of healing. Apology, Justice, and Healing An assumption often made by both victims and society is that an apology is a necessary aspect of healing. In several articles the tendency has been noted for victims seeking compensation to state that if the offender had apologized, they could have be- gun to heal.5,10 Self-help books make such state- ments as: “Apology has the power to heal individuals, couples and families. Almost like magic, apology can mend our relationships, soothe our wounds and hurt pride and heal our broken hearts” (Ref. 21, p 12). Forgiveness is a concept related to apology. Much of the psychotherapeutic literature is based on the health model perspective in which forgiveness is un- derstood as giving up one’s right to retribution and letting go of anger and resentment toward the of- fender, with a consequent reduction in the victim’s emotional distress and anxiety.22,23 A change in the perspective of the forgiver is achieved through replac- ing negative feelings with positive ones of empathy toward the wrongdoer. From this perspective, for- giveness is a gift from the forgiver to the forgiven.22 This act of forgiveness is then seen to lead to resolu- tion of the trauma and the resultant symptoms of distress. A recent study reported in The New York Times,23 however, suggests that Americans are more Regehr and Gutheil 427Volume 30, Number 3, 2002 likely to believe that God has forgiven them (75%) and to have forgiven themselves for transgressions against others (57%) than to have forgiven others for misdeeds against them (52%). Nevertheless, the re- searchers suggest that health benefits accrue for those who forgive.23 However, if forgiveness after a show of contrition through an apology is a requisite aspect of healing, then victims continue to depend on offend- ers’ behavior for their psychological well-being.5 It has been argued that an apology, rather than bringing about the healing of the victim, may in fact represent a means of catharsis only for the perpetra- tor. One Holocaust survivor stated: “I think [the apology] was invented by those who perpetrate atrocities. . .to make them feel better. I don’t know how it can make victims feel better” (Ref. 9, p 184). In this way, apologies may be a way for perpetrators to save face and avoid liability but may in fact have little to do with the victim’s well-being. When one views the public statements of victims and their families, one is often struck by the belief that healing can begin only if justice has been satis- fied. There is a belief that justice will allow “closure” of the issue.7 On another level there may be a belief in retributive justice—that is, only when the wrongdoer has been punished, either through incarceration or financial penalty, can moral equilibrium be re- stored.7 This places the victim at the mercy of a ju- dicial system that may or may not be able to prove guilt beyond a reasonable doubt. If the prosecution fails, victims may feel further victimized and humil- iated.7 Even when the victim “wins,” the experience of grueling litigation may rob that outcome of any healing potential. Secondary guilt after winning may also keep the victim from benefiting from the victory. The quest for justice and apology, in and of itself, may thwart the healing process. Many researchers have shown that the ability to attribute some positive meaning to tragic events is associated with lower lev- els of traumatic reactions. This area of inquiry began with Viktor E. Frankl’s Man’s Search for Meaning.25 in which he recounts his experience in a Nazi con- centration camp during World War II and tells how he came to understand the world and his experience. The literature now includes studies that associate positive meaning with lower levels of symptoms in human immunodeficiency virus (HIV)–positive men,26 people with disabilities,27 and women with breast cancer.28 Conversely, those individuals who continue to seek meaning in events that are horrific and random, such as incest or the loss of a child, continue to have higher levels of affective arousal many years after the traumatic event has ended.2930 The search for apology and justice may have a similar outcome. Public Acts, Private Pain When one considers the scope of human injustices in an event such as the Holocaust and the number of individuals who continue to be affected, the question arises of who should or can apologize. The famous doctor’s trial in Nuremberg (1947–1949)—focused on the experiments of Nazi doctors on prisoners in concentration camps, which included exposure to extreme cold, high altitudes, mustard gas, sulfanil- amide, seawater, and incendiary bombs—provided a window into the atrocities committed by the Na- zis.31 In that case, the first aspect of apology, that of naming the truth and forcing responsibility, was ful- filled. In referring to the trial, U.S. Chief Prosecutor Justice Robert Jackson stated: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated” (Ref. 31, pp 30 –31). Yet subsequent investigations such as the trial of French bureaucrat Maurice Papon in 1998 have demonstrated that complicity in the extermination of Jews went far beyond the borders of Germany and the realm of the Nazis. How many people and gov- ernments should apologize? In addition, the trial of James Keegstra,32 a teacher in western Canada, who fought (unsuccessfully) for the right to teach public school students that the Holocaust was a hoax, shows that acknowledgment is not universal. A second question arises regarding the extent to which a figurehead or group making an apology ac- cepts responsibility for the wrongdoing. Pope John Paul II apologized for the historic misdeeds of Ro- man Catholics, including those against Jews, and publicly asked God for forgiveness. After the apol- ogy, however, Israel’s Chief Rabbi, Israel Meir Lau, expressed disappointment that the Pope did not mention the Holocaust or the controversial role of Pope Pius XII, who, many believe, turned a blind eye to the death camps.2 Clearly, for many this apology did not go far enough. In contrast, Albert Speer, one of the most sinister figures in Nazi Germany was praised for his apology, which took full responsibility Apology, Justice, and Trauma Recovery 428 The Journal of the American Academy of Psychiatry and the Law for his actions and acknowledged that no call for forgiveness was justified: My moral failure is not a matter of this or that. It resides in my association with the whole course of events. . . . Whether I knew or did not know, or how much or how little I knew, is totally unimportant when I consider what horrors would have been the natural ones to draw from the little I did know. . . . No apologies are possible [Ref. 8, p 21]. An alternative to public apology has been the con- cept of truth commissions, the most famous of which was convened in South Africa. The task of the South African Truth and Reconciliation Commission (TRC) was to expose and document human rights abuses perpetrated under the system of apartheid.33 In the end, the TRC took 21,298 statements from survivors or families of victims of political violence and dealt with 7,128 applications for amnesty.7 Through the truth-recovery process, the commission sought to reconcile South Africa with its past and correct misconceptions and stereotypes.7,34 In this way, truth commissions are designed to fuse polar- ized antagonistic histories into a core of shared his- tory to which both sides can subscribe.18 In addition, truth processes attempt to deal with the destructive influence of enforced silence and social discounting of the experience of victims34 on the basis of the belief that revealing is healing.35 Although some view this as an important process for both individual and societal healing, others assert that the TRC was created for political reasons to smooth the political transition from authoritarian to democratic rule.34 Contentions regarding whether the process was helpful or harmful to individuals ap- pears to be highly personal and dependent on what role the individual played in the process. The com- mission attempted reconciliation in light of a com- mon history, yet critics have suggested that there is no common historical perspective and therefore the potential for discounting some experiences continues to exist.7,35 Others question the value of catharsis in such a prescribed manner within a prescribed time frame in which victims may even be forced to provide testimony.7,35 Some have suggested that individuals may have become further traumatized by the reopen- ing of their wounds and the recounting of events.7 From this perspective, the role of truth commissions is viewed as an attempt to deal with the collective issues at the expense of the individual. In fact, a South African legislator explicitly stated: “We sacri- fice justice because the pains of justice might trauma- tize our country and affect the transition. We sacri- fice justice for truth so as to consolidate democracy, to close the chapter of the past and avoid confronta- tion” (Ref. 7, p 466). Despite anecdotal evidence that the process of the TRC has led to healing, there is little empirical evi- dence to support this claim. In a study of 134 vic- tims, in which the outcome was compared for those who testified, those who gave written statements, and those who remained silent, no significant differences were found in symptoms of post-traumatic stress dis- order (PTSD) or in the victims’ levels of forgive- ness.33 In part, this may be because few psychological support services were made available to victims in the process of testifying or following their testimony.34 Furthermore, the process leading to amnesty for per- petrators preceded the process of reparation for vic- tims. Except in the most dire cases, victims were not to be compensated until the amnesty process was completed.7 In addition, amnesty seekers were not compelled to make any form of restitution beyond the public shame of acknowledging their deeds.7 Fi- nally, it is argued that far more central to the healing process is the ongoing deprivation that contributes to the experience of primary trauma.34 Reparation campaigns for past injustices represent a new phase in relationships between states and the groups that they have victimized historically. It is hoped that these will influence the future willingness of statesmen to oppress other groups.19 However, one of the problems of reparation is the possibility of backlash. Torpey19 suggests that the payment by the Germans of enormous sums in reparation for acts in World War I helped generate a backlash against those who exacted the payments and contributed to the rise of the Nazi party. Further, it is possible that current attempts to obtain reparation contribute to anti-Semitism and the threat of questions about the validity of claims. Thus, the risk to individuals may in fact increase. Conclusion In this review, we have considered some of the studies of apologies made in several circumstances. It is clear from the foregoing that far more systematic research is needed into the variables that affect the potential of the apology to become a step in the heal- ing process. As this review has indicated, the current empirical evidence is insufficiently solid to support the proposition that apology by oppressors, perpetra- Regehr and Gutheil 429Volume 30, Number 3, 2002 tors, and defendants is a panacea leading to healing of trauma under all circumstances. The variability of injuries and their scope, the variety of victims and their psychologies, and the possibilities of misman- aged apology and inadequate personal support dur- ing the process all conspire to prevent a single para- digm from covering all conditions. In particular situations, however, such as civil harm brought to bear on groups of people, apology may be a necessary if insufficient step toward some restitution for the injury. References 1. Pope’s Web apology over sex abuse. 2001. http://www.cnn.com/ world/europe/11/22/pope.apology 2. Pope’s apology not enough. BBC Online. March 12, 2000. Avail- able at http://www.news.bbc.co.uk 3. The role of apology. New Jersey Law J 163:26, 2001 4. A belated apology. Macleans. December 24, 2001, p 15 5. Taft L: Apology subverted: the commodification of apology. Yale Law J 109:1135–50, 2000 6. Roach K: Changing punishment at the turn of the century: restor- ative justice on the rise. Can J Criminol 42:249 – 80, 2000 7. Allan A, Allan M: The South African Truth and Reconciliation Commission as a therapeutic tool. Behav Sci Law 18:459 –77, 2000 8. Tavuchis N: Mea Culpa: A Sociology of Apology and Reconcili- ation. Stanford, CA: Stanford University Press, 1991 9. Shuman D: The role of apology in tort law. Judicature 83:180 –9, 2000 10. Gutheil T: On apologizing to patients. Risk Manage Found Fo- rum 8:3– 4, 1987 11. Des Rosiers N, Feldthusen B, Hankivsky O: Legal compensation for sexual violence: therapeutic consequences and consequences for the judicial system. Psychol Public Policy Law 4:433–51, 1998 12. Compromise and offers to compromise. F.R.E. Article IV, Rule 408 13. Mass. Gen. Laws Ann. Ch. 233, § 23D (1998) 14. Hills A, Thomson D: Should victim impact influence sen- tences?— understanding the community’s justice reasoning. Be- hav Sci Law 17:661–71, 1999 15. Bowman M: Individual differences in posttraumatic distress: problems with the DSM-IV model. Can J Psychiatry 44:21–33, 1999 16. Paris J: Nature and Nurture in Psychiatry: A Predisposition Stress Model of Mental Disorders. Washington, DC: American Psychi- atric Press, 1999 17. Regehr C, Hemsworth D, Hill J: Individual predictors of trau- matic response: a structural equation model. Can J Psychiatry 46:74 –9, 2001 18. Braithwaite J: Shame and criminal justice. Can J Criminol 42: 281–98, 2000 19. Torpey J: Making whole what has been smashed: reflections on reparations. J Mod History 73:333–58, 2001 20. O’Haley J: Apology and pardon: learning from Japan. Am Behav Sci 41:842– 67, 1998 21. Engel B: The Power of Apology. New York: John Wiley and Sons, 2001 22. Scobie E, Scobie G: Damaging events: the perceived need for forgiveness. J Theory Soc Behav 28:373– 401, 1998 23. Toussaint L, Williams D, Musick M, Everson S: Forgiveness and health: age differences in a U. S. probability sample. J Adult Dev 8:249 –57, 2001 24. Goode E: Letting bygones be bygones is often a challenge. The New York Times. December 11, 2001 25. Frankl VE: Man’s Search for Meaning. New York: Washington Square Press, 1984 26. Schwartzberg S: Struggling for meaning: how HIV positive gay men make sense of AIDS. Prof Psychol 24:483–90, 1993 27. Dunn D: Positive meaning and illusions following disability: re- ality negotiation, normative interpretation, and value change. J Soc Behav Pers 9:123–138, 1994 28. Taylor S, Wood J, Lichtman R: It could be worse: selective eval- uation as a response to victimization. J Soc Issues 39:19 – 40, 1983 29. Downey G, Silver R, Wortman C: Reconsidering the attribution- adjustment relation following a major negative event: coping with the loss of a child. J Pers Soc Psychol 59:925– 40, 1992 30. Silver R, Boon C, Stones M: Searching for meaning in misfortune: making sense of incest. J Soc Issues 39:81–102, 1983 31. Marrus M: The Nuremberg doctors’ trial in historical context. Bull Hist Med 73:106 –23, 1999 32. R v. Keegstra, 2 S.C.R. 381 (Canada 1995) 33. Kaminer D, Stein D, Mbanga I, Zungu-Dirwayi N: The Truth and Reconciliation Commission in South Africa: relation to psy- chiatric status and forgiveness among survivors of human rights abuses. Br J Psychiatry 178:373–7, 2001 34. Hamber B: The burden of truth: an evaluation of the psycholog- ical support services and initiatives undertaken by the South Af- rican Truth and Reconciliation Commission. Am Imago 55:9 – 28, 1998 35. Hayes G: We suffer our memories: thinking about the past, heal- ing and reconciliation. Am Imago 55:29 –50, 1998 Apology, Justice, and Trauma Recovery 430 The Journal of the American Academy of Psychiatry and the Law 
work_rn7p5yjxxrhtjkaud4plni6hqy	----	RESEARCH REPORT Organisational justice and change in justice as predictors of employee health: the Whitehall II study Mika Kivimäki, Jane E Ferrie, Jenny Head, Martin J Shipley, Jussi Vahtera, Michael G Marmot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . See end of article for authors’ affiliations . . . . . . . . . . . . . . . . . . . . . . . Correspondence to: Professor M Kivimaki, Finnish Institute of Occupational Health, Topeliuksenkatu 41 aA, FIN-00250 Helsinki, Finland; mika.kivimaki@ttl. fi Accepted for publication 28 March 2004 . . . . . . . . . . . . . . . . . . . . . . . J Epidemiol Community Health 2004;58:931–937. doi: 10.1136/jech.2003.019026 Objective: Organisational justice has been proposed as a new way to examine the impact of psychosocial work environment on employee health. This article studied the justice of interpersonal treatment by supervisors (the relational component of organisational justice) as a predictor of health. Design: Prospective cohort study. Phase 1 (1985–88) measured relational justice, job demands, job control, social support at work, effort-reward imbalance, and self rated health. Relational justice was assessed again at phase 2 (1989–90) and self rated health at phase 2 and phase 3 (1991–93). Setting: 20 civil service departments originally located in London. Participants: 10 308 civil servants (6895 men, 3413 women) aged 35–55. Outcome measure: Self rated health. Main results: Men exposed to low justice at phase 1 or adverse change in justice between phase 1 and phase 2 were at higher risk of poor health at phase 2 and phase 3. A favourable change in justice was associated with reduced risk. Adjustment for other stress indicators had little effect on results. In women, low justice at phase 1 predicted poor health at phase 2 and phase 3 before but not after adjustment for other stress indicators. Adverse change in justice was associated with worse health prospects irrespective of adjustments. Conclusions: The extent to which people are treated with justice in workplaces seems to predict their health independently of established stressors at work. Evidence on reduced health risk after favourable change in organisational justice implies a promising area for health interventions at workplace. A ccording to established occupational stress models, high demands, low job control, poor social support, and an effort-reward imbalance present significant psychosocial health risks at work.1–3 The study of organisa- tional justice is a recent attempt to identify new psychosocial determinants of employee health.4–10 The relational compo- nent of organisational justice, which is the main focus of this study, refers to the extent supervisors consider their employ- ees’ viewpoint, are able to suppress personal biases, and take steps to deal with subordinates in a fair and truthful manner. The procedural component of organisational justice involves the fairness of formal decision-making procedures. Although organisational justice partly overlaps established occupational stressors, it may also tap additional elements that contribute to employee health.4–6 Job demands, job control, and social support deal with the person’s job characteristics or situations in which the employee needs help. Fairness of interpersonal treatment and organisational procedures capture more basic elements of the social structure in which these characteristics are operating.11 12 Organisational justice captures the whole range of unfair treatment at work, not only an imbalance between efforts and rewards.11 12 Previous studies report lower levels of justice to be associated with lower wellbeing, higher self reported mor- bidity, higher medically certified absence, increased mental health problems, and greater likelihood of maladaptive coping.4–6 13–17 Research on change in organisational justice and health is now required to determine the effect of change in justice. Reduced health risk after an improvement in justice would be consistent with a causal interpretation and identify a potential target for workplace interventions. Failure to observe such an association would suggest that the link between justice and health may be attributable to residual confounding by stable health risk factors, for example, early material and social disadvantage, adulthood socioeconomic position, and personality.18 Previous studies have failed to address the question of change in justice. They have also had short follow up periods ((3 years), such that the long term health effects of organisational justice, as well as the effects of change, have yet to be determined. The prospective Whitehall II study of British civil servants provided an opportunity for the first large scale examination of relational justice and heath. To overcome some of the limitations of previous research, we studied whether the level of relational justice and change in justice were predictive of subsequent health status independently of other occupa- tional stress indicators such as job demands, job control, social support at work, and effort-reward imbalance. We explored both short term and long term health effects of justice. METHODS Participants The target population for Whitehall II was all London based office staff, aged 35–55, working in 20 civil service depart- ments between 1985 and 1988 at entry into the study. With a response rate of 73% to the survey at phase 1, the final cohort consisted of 10 308: 6895 men and 3413 women.19 The true response rate was higher, however, because around 4% of those invited were not eligible for inclusion. Although mostly white collar, respondents covered a wide range of grades (and salaries) from office support to permanent secretary. Study design Baseline screening (phase 1) of the Whitehall II cohort took place between 1985 and 1988. This involved a clinical examination and a self administered questionnaire contain- ing sections on demographic characteristics, health, lifestyle factors, work characteristics, social support, life events, and 931 www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ chronic difficulties. In 1989/90 (phase 2), the same ques- tionnaire data were collected by post. The third data collection phase was between 1992 and 1993. In this study, relational justice, occupational stress indicators, demographic characteristics, and self rated health were assessed at phase 1. Relational justice and self rated health were additionally assessed at phase 2 and the latter also at phase 3. Measurements Relational justice Standard scales of organisational justice were not available at phase 1 and phase 2,9 but it was possible to construct an indicator of relational justice with face validity from the available questionnaire items in the survey instruments. The five items that deal with relational justice loaded to the same factor (items loadings .0.40) in a varimax-rotated factor analysis of the 19 items covering management and organisa- tion of work, and formed an internally consistent scale of relational justice (Cronbach a 0.71 at phase 1, 0.73 at phase 2) (see box). We summed the response scores and expressed this as a percentage of the theoretical maximum (100 refers to respondents with the highest score for every item of the scale; 25 refers to respondents with the lowest score for every item of the scale). We divided the distribution into quartiles, separately for men and women. The bottom quartile indicated a low level of relational justice, the top quartile a high level of relational justice, and the two middle quartiles an intermediate level. Change in relational justice was calculated by deducting the phase 2 score from the phase 1 score. Scores in the bottom quartile resulting from this subtraction indicated adverse change, scores in the top quartile favourable change, and the middle quartiles no change. Occupational stress indicators The occupational stress indicators used were job demand scale (Cronbach’s a = 0.67), job control scale (a = 0.84), and social support at work scale (a = 0.79) from the job content questionnaire,1 20 and an indicator of effort-reward imbalance from the ratio of the effort scale (numerator, five items, a = 0.72) and the reward scale (denominator, 10 items, a = 0.78) (see appendix).20 21 In all measures, the bottom quartile indicated a low level, the top quartile a high level, and the middle two quartiles an intermediate level for each of these indicators. Self rated health The respondents made an assessment of their health over the past year using a 5 point scale (1 = very good, 2 = good, 3 = average, 4 = poor, 5 = very poor). This measure was dichotomised and used as an indicator of poor health (average or worse compared with good or very good). Table 1 Characteristics of participants* Men (n = 6236) Women (n = 2906) Number % Mean (SD) Number % Mean (SD) Phase 1 Age group (y) 35–39 1813 29 674 23 40–44 1685 27 690 24 45–49 1216 20 649 22 50–55 1522 24 893 31 Grade Administrative 2447 39 345 12 Professional/executive 3278 52 1182 41 Clerical/support 511 8 1379 47 Relational justice 6236 78.8 (12.5) 2906 79.3 (13.6) Job demands 6226 60.4 (19.9) 2879 53.0 (20.7) Job control 6210 68.6 (14.8) 2856 58.1 (20.5) Social support at work 6221 76.2 (17.7) 2878 74.2 (20.5) Effort-reward imbalance 6235 1.04 (0.21) 2901 0.99 (0.25) Poor self rated health No 4881 78 1635 65 Yes 1355 22 848 35 Phase 2 Relational justice 5412 77.7 (12.5) 2482 77.7 (14.3) Poor self rated health No 4276 78 1618 63 Yes 1355 22 959 37 Phase 3 Poor self rated health No 4475 78 1700 66 Yes 1237 22 859 34 *Those who responded to relational justice questionnaire at phase 1 and rated their health at phase 1 or at phase 2. Relational justice scale (Cronbach’s a 0.71 at phase 1 and 0.73 at phase 2) Questions N 1 Do you get consistent information from line manage- ment (your superior)? N 2 Do you get sufficient information from line manage- ment (your superior)? N 3 When you are having difficulties at work, how often is your superior willing to listen to your problems? N 4 Do you ever get criticised unfairly? N 5 Do you ever get praised for your work? Response format 1 = never, 2 = seldom, 3 = sometimes, 4 = often. Question 4 is reverse scored. 932 Kivimäki, Ferrie, Head, et al www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ Statistical analysis We used analysis of variance to assess differences in levels of relational justice at phase 1 between grades, age groups, and sexes. We tested associations of relational justice and occupational stress indicators at phase 1 with self rated health at phase 2 and phase 3 using logistic regression analysis, separately for men and women. The first models, containing relational justice or one stress indicator, gave odds ratios and 95% confidence intervals adjusted for age in five year categories, employment grade, and self rated health at Table 2 Associations of relational justice and other psychosocial work characteristics at phase 1 with poor self rated health at phase 2 and phase 3 in men. Figures are odds ratios (95% confidence intervals) unless otherwise stated Exposure at phase 1 Poor self rated health at phase 2 Poor self rated health at phase 3 (1208/5456 men) (1228/5668 men) Number Model 1* Model 2� Number Model 1* Model 2� Relational justice High 1499 1.00 1.00 1552 1.00 1.00 Intermediate 2493 1.06 (0.88 to 1.27) 0.99 (0.83 to 1.20) 2586 1.27 (1.07 to 1.51) 1.27 (1.03 to 1.56) Low 1464 1.48 (1.22 to 1.80) 1.33 (1.08 to 1.65) 1530 1.43 (1.18 to 1.73) 1.53 (1.18 to 1.98) Test for trend p,0.001 p = 0.008 p,0.001 p = 0.001 Job demands Low 1303 1.00 1.00 1342 1.00 1.00 Intermediate 2429 1.12 (0.93 to 1.34) 1.05 (0.86 to 1.29) 2523 1.20 (1.00 to 1.43) 1.13 (0.93 to 1.38) High 1724 1.34 (1.09 to 1.64) 1.23 (0.97 to 1.56) 1803 1.32 (1.08 to 1.61) 1.20 (0.95 to 1.51) Test for trend p,0.001 p = 0.057 p = 0.007 p = 0.120 Job control High 1397 1.00 1.00 1444 1.00 – Intermediate 2675 1.19 (0.98 to 1.47) 1.19 (0.98 to 1.44) 2772 0.99 (0.83 to 1.19) – Low 1384 1.38 (1.10 to 1.73) 1.35 (1.07 to 1.71) 1452 1.10 (0.89 to 1.37) – Test for trend p = 0.005 p = 0.017 p = 0.361 Social support at work High 1143 1.00 – 1191 1.00 1.00 Intermediate 3116 1.06 (0.88 to 1.28) – 3232 1.20 (1.00 to 1.44) 0.98 (0.78 to 1.22) Low 1197 1.15 (0.92 to 1.43) – 1245 1.18 (0.96 to 1.46) 0.80 (0.60 to 1.08) Test for trend p = 0.213 p = 0.145 p = 0.120 Effort-reward imbalance Low 1392 1.00 1.00 1413 1.00 1.00 Intermediate 2740 1.23 (1.02 to 1.47) 1.22 (0.99 to 1.50) 2851 1.15 (0.97 to 1.38) 1.07 (0.87 to 1.30) High 1324 1.46 (1.19 to 1.81) 1.14 (0.88 to 1.48) 1404 1.34 (1.10 to 1.64) 1.14 (0.89 to 1.47) Test for trend p,0.001 p = 0.338 p = 0.004 p = 0.336 Only participants with no missing data in any of the predictors were included in these models. *Adjusted for age, grade, and self rated health at baseline. �Additionally adjusted for statistically significant predictors in model 1. Table 3 Associations of relational justice and other psychosocial work characteristics at phase 1 with poor self rated health at phase 2 and phase 3 in women. Figures are odds ratios (95% confidence intervals) unless otherwise stated Exposure at phase 1 Poor self rated health at phase 2 Poor self rated health at phase 3 (920/2501 women) (829/2483 women) Number Model 1* Model 2� Number Model 1* Model 2� Relational justice High 751 1.00 1.00 753 1.00 1.00 Intermediate 1060 1.07 (0.85 to 1.33) 1.05 (0.84 to 1.31) 1029 1.02 (0.82 to 1.28) 0.93 (0.72 to 1.21) Low 690 1.31 (1.03 to 1.69) 1.26 (0.98 to 1.60) 701 1.32 (1.04 to 1.68) 1.12 (0.82 to 1.55) Test for trend p = 0.031 p = 0.070 p = 0.022 p = 0.445 Job demands Low 597 1.00 1.00 587 1.00 1.00 Intermediate 1395 1.30 (1.03 to 1.64) 1.28 (1.02 to 1.61) 1380 1.19 (0.94 to 1.50) 1.17 (0.92 to 1.47) High 509 1.49 (1.10 to 2.00) 1.42 (1.05 to 1.93) 516 1.45 (1.07 to 1.95) 1.38 (1.02 to 1.87) Test for trend p = 0.008 p = 0.018 p = 0.015 p = 0.034 Job control High 601 1.00 – 618 1.00 – Intermediate 1247 1.05 (0.82 to 1.35) – 1244 1.05 (0.82 to 1.35) – Low 653 1.26 (0.93 to 1.70) – 621 1.19 (0.88 to 1.62) – Test for trend p = 0.121 p = 0.250 Social support at work High 546 1.00 – 531 1.00 1.00 Intermediate 1279 1.04 (0.83 to 1.32) – 1291 1.17 (0.92 to 1.49) 1.15 (0.86 to 1.53) Low 676 1.09 (0.83 to 1.41) – 661 1.37 (1.05 to 1.80) 1.24 (0.87 to 1.77) Test for trend p = 0.543 p = 0.021 p = 0.230 Effort-reward imbalance Low 604 1.00 – 596 1.00 – Intermediate 1288 1.14 (0.90 to 1.43) – 1258 1.02 (0.81 to 1.29) – High 609 1.13 (0.86 to 1.49) – 629 1.24 (0.95 to 1.63) – Test for trend p = 0.386 p = 0.094 Only participants with no missing data in any of the predictors were included in these models. *Odds ratios adjusted for age, grade, and self rated health at baseline. �Additionally adjusted for statistically significant predictors in model 1. Change in organisational justice 933 www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ phase 1 (model 1). We tested for the significance of each exposure by fitting a linear trend across the three levels. Further models (model 2) additionally adjusted for each significant predictor found in model 1. Only participants with no missing data for any of the predictors were included in these models. The statistical significance of interactions between justice and sex was tested in the combined cohort of men and women by including interaction terms. The analyses were replicated among those with good or very good self rated health at phase 1 (the initially healthy sub-cohort). To test reverse causality, we used repeated measures analysis of variance to assess whether health at phase 1 predicted change in justice between phase 1 and phase 2. The next step tested whether favourable or adverse change in relational justice between phase 1 and phase 2, compared with no change, predicted self rated health at phase 2 and phase 3 after adjustment for age group, grade, self rated health, relational justice at phase 1, and those occupational stressors at phase 1 that significantly predicted self rated health at phase 2 and phase 3. We used SAS statistical program (SAS Institute, Cary, NC, USA) for all the analyses. RESULTS Baseline characteristics and sample attrition Of the 10 308 participants, data on relational justice at phase 1 were available for 10 281 employees. Differences in relational justice between age groups were small (range 78.5–79.1, p = 0.25), but relational justice was higher among administrative grades (age adjusted mean score 80.0) than professional/executive grades (78.1) and clerical/support grades (78.7) (p for difference ,0.001). Women had slightly higher relational justice (age and grade adjusted mean 79.4) than men (78.7) (p = 0.02). Poor self rated health at phase 1 was a significant predictor of dropping out of the cohort before phase 2 (odds ratio, adjusted for age, grade and sex, 1.3, 95% confidence intervals (CI) 1.2 to 1.5). Dropping out was also more likely in participants with low relational justice compared with those with intermediate or high justice at phase 1 (odds ratio, adjusted for age, grade, and health at phase 1, 1.1, 95% CI 1.0 to 1.2). Table 1 presents descriptive statistics of the participants included in the subsequent analyses. Level of relational justice and subsequent health Table 2 shows that in men lower levels of justice and job control and higher levels of job demands and effort-reward imbalance were associated with higher risk of poor health at phase 2 (model 1). With the exception of job control, these factors also predicted poor health at phase 3. In models simultaneously adjusting for all significant predictors, lower justice and higher demands remained as significant pre- dictors of health at both phases (model 2). In women, lower relational justice and higher job demands were associated with increased risk of poor health at phase 2 and phase 3 (table 3, model 1). Lower social support was an additional predictor of poor health at phase 3. In the fully adjusted model, only high demands remained as a significant predictor of health at both phases (model 2). However, no sex interaction with relational justice was found in models for a cohort combining men and women (p values for interaction >0.43). We replicated analyses in a sub-cohort of 4492 male and 1679 female employees with good health at phase 1 (not shown in table). In men, age and grade adjusted odds ratios for low justice were 1.6 (95% CI 1.3 to 2.1) and 1.5 (95% CI 1.2 to 1.9) for incident self rated poor health at phase 2 and phase 3, respectively. For women, the corresponding odds ratios were 1.2 (95% CI 0.9 to 1.7) and 1.2 (95% CI 0.8 to 1.6). Despite slightly lower odds ratios among women, there were no significant sex interactions (p>0.18). To examine the possibility of reverse causation, we tested whether health at phase 1 predicted change in relational justice (not shown in table). In men, a small decline in justice between phase 1 and phase 2 was observed for those with good health (change score 21.5) but not for those with poor health (change score 20.4; p for health 6 time interac- tion = 0.01). This reflects regression towards the mean, an Table 4 Change in relational justice between phase 1 and phase 2 as a predictor of poor self rated health at phase 2 and phase 3. Figures are odds ratios (95% confidence intervals) unless otherwise stated Change between phase 1 and phase 2 Poor self rated health at phase 2 Poor self rated health at phase 3 Number Model 1* Model 2� Number Model 1* Model 2� Men Relational justice Favourable change 1159 0.62 (0.51 to 0.75) 0.61 (0.50 to 0.74) 918 0.75 (0.61 to 0.92) 0.75 (0.61 to 0.93) No change 3264 1.00 1.00 2566 1.00 1.00 Adverse change 972 1.24 (1.02 to 1.50) 1.23 (1.01 to 1.49) 1354 1.25 (1.02 to 1.54) 1.26 (1.03 to 1.54) Test for trend p,0.001 p,0.001 p,0.001 p,0.001 Women Relational justice Favourable change 556 0.84 (0.66 to 1.08) 0.84 (0.65 to 1.08) 487 0.79 (0.61 to 1.03) 0.79 (0.60 to 1.03) No change 1385 1.00 1.00 1075 1.00 1.00 Adverse change 523 1.31 (1.03 to 1.66) 1.30 (1.02 to 1.65) 601 1.19 (0.93 to 1.54) 1.26 (0.97 to 1.63) Test for trend p = 0.003 p = 0.001 p = 0.013 p,0.001 Only participants with no missing data in any of the predictors were included in these models. *Odds ratios adjusted for age, grade, relational justice at phase 1, and self rated health at phase 1. �Additionally adjusted for all significant phase 1 predictors of self rated health shown in tables 2 and 3. Key points N The justice of interpersonal treatment by supervisors predicts employee health independently of established occupational stressors N Low and declining justice increases risk of poor health N High and increasing justice is associated with reduced health risk N These associations seem slightly stronger in men than women Policy implications The focus of workplace health interventions should be broadened to cover justice in managerial treatment. 934 Kivimäki, Ferrie, Head, et al www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ opposing trend against the hypothesis of reverse causation. In women, no interaction between health at phase 1 and time on change in justice was observed (p = 0.67). Thus, reverse causation is unlikely to explain the observed association between relational justice and subsequent self rated health. Change in justice as a predictor of health Results in table 4 indicate that favourable change compared with no change in relational justice between phase 1 and phase 2 was associated with lower risk of poor health at phase 2 and phase 3. This association was statistically significant only for men. Adverse change in justice was associated with higher risk of poor health both in men and women. Analysis of a cohort combining men and women revealed no sex interaction with change in justice on health at phase 2 (p for interaction = 0.14) and health at phase 3 (p value = 0.40). Additional adjustment for the other occupa- tional stressors at phase 1 that predicted health at phase 2 and phase 3 had little effect on these findings. DISCUSSION This prospective study showed low and declining levels of relational justice to predict decreasing health in a large well characterised cohort of men and women in the British civil service. Favourable change in the extent to which employees were treated with justice was associated with reduced health risk in men. These associations were largely replicable across two different follow up periods (three and six years, on average), and were not attributable to other occupational stressors or reverse causation. Research of organisational justice is very recent compared with the large number of analyses published on the demand- control model and the effort-reward imbalance model.1–3 20 21 There are conceptual differences in proposed health relevant features of work between these three models. The primary focus of the demand-control model is on task level characteristics whereas the other two models emphasise work related social contexts and processes.1–3 7–12 According to the effort-reward imbalance model, health risk derives from the mismatch between high efforts spent at work and low rewards received in turn. Rewards comprise money, social approval, job security, and career opportunities.3 The justice model is not limited to this specific exchange process between efforts and rewards. Instead, it aims at capturing the whole range of unfair treatment at work as experienced or witnessed by the employees.7–12 Indeed this study suggests that justice of interpersonal treatment may have a unique effect on employee health that cannot be accounted for by factors such as job control, job demands, social support, and effort-reward imbalance. A sense of justice is valued by people across a wide variety of settings,12 22 23 and even highly cooperative non-human species, such as monkeys, have been shown to manifest inequity aversion.24 Perceptions of unfairness have previously been related to health risk factors such as increased psychological distress,5 17 heightened levels of unfavourable serum lipids,25 and raised blood pressure.26 In this study, we found a 30%–50% excess risk of poor health among men with low relational justice after three and six years of follow up. The corresponding figures for women were lower (10%–30%), but the sex difference was not statistically significant. This issue deserves further attention in future studies of justice, as experiences and reactions to work conditions often differ between men and women. In prior longitudinal studies, with smaller samples and shorter follow ups, the associations between relational justice and health have been weaker than in this study.5 To our knowledge, evidence on the health effects of changing justice has not previously been reported. We found that an adverse change in relational justice was associated with a 20%–30% excess risk of poor health and a favourable change with a 15%–40% lowering of the risk. Confounding by stable third factors (for example, childhood socioeconomic circumstances, and personality) is an unlikely explanation for effects when the exposure captures change in a risk factor.18 The magnitude of the observed effects are comparable to those found for established occupational stressors. For example, decreasing job control and increasing job demands were associated with a 10%–40% increase in health problems in the Whitehall II cohort and in a study of Finnish municipal employees.20 27 In the latter study the reference category was an increase in control and a decrease in demands whereas in this study we used ‘‘no change’’ as the reference, an approach leading to more conservative estimates. Strengths and weaknesses of the study In this study, sample attrition was slightly greater among unhealthy participants and those experiencing low relational justice than among the other employees. This is likely to produce a ‘‘healthy worker’’ effect and constrict variation in the exposure, both leading, if anything, to underestimation rather than overestimation of the association between relational justice and subsequent health. Exposure and outcome were measured by self reports, a potential source of inflated associations in cross sectional data. However, because we adjusted our analyses for baseline health, an artificial inflation of associations would have occurred only if common-method variance had affected the second and third surveys but not the first survey. Standard measures of relational justice were not available at the time of the baseline survey and thus our justice measure had to be derived from existing questions. Some of the items were those also included in the social support scale. Despite this, the effect of justice seems not to be attributable to social support. The associations between social support at work and health were weaker than those for relational justice, corresponding to earlier studies using standard scales for organisational justice.4–6 Of the five questions that comprise our justice measure, the item that best describes the concept and is not included in the social support scale (‘‘Do you ever get criticised unfairly?’’), was the strongest predictor of poor health in men and women and across both follow up periods. Our justice measure captured aspects such as the extent supervisors are able to suppress personal bias and deal with employees in a fair and truthful manner. In contrast, the measure did not include items that cover whether supervisors consider their subordinates’ viewpoints in decision making. As such supervisory consideration has been strongly corre- lated with the other aspects of relational justice in previous studies, this may not be a major source of bias.4–6 However, consideration of subordinates’ viewpoints partly overlaps with the concept of job control (participation in decision making).1 Thus, it is possible that our study overestimates the independence of the health effects of relational justice and job control. On the other hand, previous investigations with the standard scales indicate this is unlikely as the impact of organisational justice on health has been independent of job control.4–6 We measured health using overall subjective health ratings. Self rated health has predicted mortality in the Whitehall II study and among other adult populations in Britain, USA, Scandinavia, Japan, and Australia.28–32 Comparisons with other health measures suggest that self rated health may be an even more inclusive and accurate measure of overall health status than medical records or self reports of these records.29 The direction for future research is to examine associations between organisational justice and Change in organisational justice 935 www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ other health measures, such as sickness absence, mental health problems, and specific diseases. If stress is behind the health toxic effect of low justice, then stronger associations would be expected with indicators of impaired immune function, mental health problems, and cardiovascular dis- orders than for other health outcomes.33 Assessing employee health with objective indicators of diseases, in addition to self reported measures, would also be a step forward. Policy implications Large scale intervention studies to decrease occupational stress have remained comparatively rare and they have often had an individualistic focus.34–36 The justice theory may provide complementary elements for workplace interven- tions. According to the theory, fair decision making should be consistently applied, unbiased and open, and reflect respect- ful and considerate treatment of individuals by their super- visors.7–10 The evidence in this study suggests that improving the fairness of decision making will have a favourable effect on the health of employees. ACKNOWLEDGEMENTS We thank all participating civil service departments and their welfare, personnel, and establishment officers; the Occupational Health and Safety Agency; the Council of Civil Service Unions; all participating civil servants in the Whitehall II study; all members of the Whitehall II study team. CONTRIBUTORS MK, guarantor for the paper, with JEF, JH, MJS, JV and MGM designed the hypothesis, analysed the data, and wrote the paper. MGM is the director of the Whitehall II study. Authors’ affiliations . . . . . . . . . . . . . . . . . . . . . M Kivimäki, J Vahtera, Finnish Institute of Occupational Health and University of Helsinki, Finland J E Ferrie, J Head, M J Shipley, M G Marmot, International Centre for Health and Society, Department of Epidemiology and Public Health, University College London Medical School, UK Funding: the Whitehall II study has been supported by grants from the Medical Research Council; British Heart Foundation; Health and Safety Executive; Department of Health; National Heart Lung and Blood Institute (HL36310), US, NIH: National Institute on Aging (AG13196), US, NIH; Agency for Health Care Policy Research (HS06516); and the John D and Catherine T MacArthur Foundation Research Networks on Successful Midlife Development and Socio-economic Status and Health. MK, also working at the University of Helsinki, Finland, and JV were supported by the Academy of Finland (projects 77560, 104891, and 105195) and the Finnish Environment Fund, JEF is supported by the MRC (Grant number 47413), MJS by a grant from the British Heart Foundation, and MGM by an MRC Research Professorship. Conflicts of interest: none declared. APPENDIX ITEMS OF THE OCCUPATIONAL STRESS SCALES Job demands ‘‘Do you have to work very fast?’’; ‘‘Do you have to work very intensively?’’; ‘‘Do you have enough time to do everything?’’ (reverse scored); ‘‘Do different groups at work demand things from you that you think are hard to combine?’’ Job control ‘‘Do you have the possibility of learning new things through your work?’’; ‘‘Does your work demand a high level of skill or expertise?’’; ‘‘Does your job require you to take the initiative?’’; ‘‘Do you have to do the same thing over and over again?’’ (reverse scored); ‘‘Does your job provide you with a variety of interesting things?’’; ‘‘Is your job boring?’’ (reverse scored); ‘‘Do you have a choice in deciding HOW you do your work?’’; ‘‘Do you have a choice in deciding WHAT you do at work?’’; ‘‘Others take decisions concerning my work.’’ (reverse scored); ‘‘I have a good deal of say in decisions about work’’; ‘‘I have a say in my on work speed.’’; ‘‘My working time can be flexible.’’; ‘‘I can decide when to take a break.’’; ‘‘I have a say in choosing with whom I work.’’; ‘‘I have a great deal of say in planning my work environment.’’ Social support at work ‘‘Do you get sufficient information from line management (your superior)?’’; ‘‘Do you get consistent information from line management (your superior)?’’; ‘‘When you are having difficulties at work, how often do you get help and support from your colleagues?’’; ‘‘When you are having difficulties at work, how often are your colleagues willing to listen to your work related problems?’’; ‘‘When you are having difficulties at work, how often do you get help and support from your immediate superior?’’; ‘‘When you are having difficulties at work, how often is your superior willing to listen to your problems?’’ Effort scale ‘‘Do you have to work very fast?’’; ‘‘Do you have to work very intensively?’’; ‘‘Do you have enough time to do everything?’’; ‘‘Does your work demand a high level of skill and expertise?’’; ‘‘Does your job require you to take initiative?’’ Reward scale ‘‘Do you ever get praised for your work?’’; ‘‘Does your job provide you with a variety of interesting things?’’; ‘‘Do you consider your job very important?’’; ‘‘Do your colleagues consider your job very important?’’; ‘‘When you are having difficulties at work, how often do you get help and support from your colleagues?’’; ‘‘When you are having difficulties at work, how often do you get help and support from your immediate superior?’’; ‘‘How satisfied are you with your usual take home pay?’’; ‘‘How satisfied are you with your work prospects?’’; ‘‘How satisfied are you with the way your abilities are used?’’; ‘‘How satisfied are you with the interest and skill involved in your job?’’ REFERENCES 1 Karasek R, Theorell T. Stress, productivity and reconstruction of working life. New York: Basic Books, 1990. 2 Johnson J, Hall E. Job strain, work place social support, and cardiovascular disease: a cross-sectional study of a random sample of the Swedish working population. Am J Public Health 1988;7:1336–42. 3 Siegrist J. Adverse health effects of high-effort/low-reward conditions. J Occup Health Psychol 1996;1:27–41. 4 Elovainio M, Kivimäki M, Vahtera J. Organizational justice: evidence of a new psychosocial predictor of health. Am J Public Health 2002;92:105–8. 5 Kivimäki M, Elovainio M, Vahtera J, et al. Organisational justice and health of employees: prospective cohort study. Occup Environ Med 2003;60:27–34. 6 Kivimäki M, Elovainio M, Vahtera J, et al. Association between organisational inequity and incidence of psychiatric disorders in female employees. Psychol Med 2003;33:319–26. 7 Bies RJ, Moag JS. Interactional justice: communication criteria of fairness. In: Lewicki RJ, Sheppard BH, Bazerman MZ, eds. Research on negotiations in organizations. Greenwich, CT: JAI Press, 1986:43–55. 8 Greenberg J. Organizational justice: yesterday, today, and tomorrow. Journal of Management 1990;16:399–432. 9 Moorman RH. Relationship between organizational justice and organizational citizenship behaviors: Do fairness perception influence employee citizenship? J Appl Psychol 1991;76:845–55. 10 Kramer RM, Tyler TR. Trust in organizations: frontiers of theory and research. London: Sage, 1996. 11 van den Bos K, Lind EA. Uncertainty management by means of fairness judgments. In: M P Zanna, eds. Advances in experimental social psychology. San Diego, CA: Academic Press, 2002:1–60. 12 Miller DT. Disrespect and the experience of injustice. Ann Rev Psychol 2001;52:527–53. 13 Huo YJ, Smith HJ, Tyler TR, et al. Superordinate identification, subgroup identification, and justice concerns: Is separatism the problem; is assimilation the answer? Psychol Sci 1996;7:40–5. 14 Folger R, Cropanzano R. Organizational justice and human resource management. Thousand Oaks, CA: Sage, 1998. 936 Kivimäki, Ferrie, Head, et al www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ 15 Theorell T, Afredsson , Westerholm P, et al. Coping with unfair treatment at work—what is the relationship between coping and hypertension in middle- aged men and women Psychoter Psychosom 2000;69:86–94. 16 Elovainio M, Kivimäki M, Vahtera J, et al. Sleeping problems and health behaviors as mediators between organizational justice and health. Health Psychol 2003;22:287–93. 17 Elovainio M, Kivimäki M, Helkama K. Organisational justice evaluations, job control, and occupational strain. J Appl Psychol 2001;86:418–24. 18 Macleod J, Davey Smith G. Psychosocial factors and public health: a suitable case for treatment? J Epidemiol Community Health 2003;57:565–70. 19 Marmot MG, Davey Smith G, Stansfeld S, et al. Health inequalities among British civil servants: the Whitehall II study. Lancet 1991;337:1387–93. 20 Stansfeld SA, Fuhrer R, Shipley MJ, et al. Work characteristics predict psychiatric disorders: prospective results from the Whitehall II study. Occup Environ Med 1999;56:302–7. 21 Kuper H, Singh-Manoux A, Siegrist J, et al. When reciprocity fails: effort- reward imbalance in relation to coronary heart disease and health functioning within the Whitehall II study. Occup Environ Med 2002;59:777–84. 22 Wenekind C, Milinski M. Cooperation through image scoring in humans. Science 2000;200:850–2. 23 Johnson DDP, Stopka P, Knights S. The puzzle of human cooperation. Nature 2003;421:911–12. 24 Brosnan SF, de Waal FBM. Monkeys reject unequal pay. Nature 2003;425:297–8. 25 Richards JC, Hof A, Alvarenga M. Serum lipids and their relationships with hostility and angry affect in men. Health Psychol 2000;19:393–8. 26 Wager NM, Fieldman G, Hussey T. The effect on ambulatory blood pressure of working under favourably and unfavourably perceived supervisors. Occup Environ Med, 2003;60, 468–74. 27 Vahtera J, Kivimäki M, Pentti J, et al. Effect of change in the psychosocial work environment on sickness absence: a seven year follow-up of initially healthy employees. J Epidemiol Community Health 2000;54:484–93. 28 Kivimäki M, Head J, Ferrie JE, et al. Sickness absence as a global measure of health: Evidence from all-cause mortality in the Whitehall II study. BMJ 2003;327:364–8. 29 Idler EL, Benyamini Y. Self-rated health and mortality: a review of twenty- seven community studies. J Health Soc Behav 1997;38:21–37. 30 Miilunpalo S, Vuori I, Oja P, et al. Self-rated health status as a health measure: the predictive value of self-reported health status on the use of physician services and on mortality in the working-age population. J Clin Epidemiol 1997;50:517–28. 31 Sundquist J, Johansson SE. Self-reported poor health and low educational level as predictors for mortality: a population based follow up study of 39 156 people in Sweden. J Epidemiol Community Health 1997;51:35–40. 32 Mackenbach JP, Simon JG, Looman CWN, et al. Self-assessed health and mortality: could psychosocial factors explain the association? Int J Epidemiol 2002;31:1162–8. 33 McEwen BS. Protective and damaging effects of stress mediators. N Engl J Med 1998;338:171–9. 34 Landsbergis PA, Cahill J. Labor union programs to reduce or prevent occupational stress in the United States. Int J Health Serv 1994;24:105–29. 35 Pellerier KR, Rodenberg A, Vinther A, et al. Managing job strain: a randomized, controlled trial of an intervention conducted by mail and telephone. J Occup Environ Med 1999;41:216–23. 36 Theorell T, Embad R, Arnetz B, et al. Employee effect of an educational program for managers at an insurance company. Psychosom Med 2001;63:724–33. Change in organisational justice 937 www.jech.com o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://je ch .b m j.co m / J E p id e m io l C o m m u n ity H e a lth : first p u b lish e d a s 1 0 .1 1 3 6 /je ch .2 0 0 3 .0 1 9 0 2 6 o n 1 3 O cto b e r 2 0 0 4 . D o w n lo a d e d fro m http://jech.bmj.com/ 
work_rqzc6ktpuzdsvjr3y7yf45op4y	----	Microsoft Word - 08.Carroll.Publisher.CORRECTED.docm Restorative Justice for Multinational Corporations ANDREW BRADY SPALDING* Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries. The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address the systemic causes of crime. That theory, quite ironically, is restorative justice. By involving the perpetrator, victim, and community in the sentencing process, restorative justice does not merely punish the wrongdoer, but remedies the harm caused by the crime, prevents future harm, and reintegrates the defendant into the very community it violated. Though generally thought to apply only to the traditional crimes of natural persons, this Article demonstrates that the U.S. Constitution and Sentencing Guidelines already authorize corporate sentencing practices rooted in restorative justice principles. More to the point, for two decades the U.S. Department of Justice has quietly been implementing restorative justice principles in domestic white-collar environmental sentencing. Drawing on those precedents, this Article builds a model for extraterritorial white-collar criminal punishment that advances the interests of U.S. corporations and enforcement agencies alike, benefits the overseas victims of corporate crime, and requires no new legal authorization to implement. TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 358 II. DETERRENCE THEORY, PURE AND PROUD ..................................... 360 A. Law and Economics’ Rational Enforcement Authority ....... 360 * Assistant Professor, University of Richmond School of Law. I would like to thank the following law faculties for opportunities to present prior iterations of this research: Northwestern University Law School, William & Mary School of Law, Cardozo School of Law, and Southern Methodist University School of Law. I would also like to thank participants in the Washington & Lee International Business Transactions workshop for their extraordinarily helpful feedback. Special thanks go to Jordan Barry, Chris Buccafusco, and Jim Gibson for their exceptionally thorough comments on earlier drafts. Finally, I am deeply grateful for the skill and dedication of my two excellent research assistants, Amanda Cottingham and Jen Wuebker. 358 OHIO STATE LAW JOURNAL [Vol. 76:2 B. A Case Study in Extraterritorial Deterrence: Anti-Bribery Law ....................................................................................... 364 III. DETERRENCE DETERIORATES ........................................................ 371 A. Subrational Governments in Inefficient Markets ................. 372 B. Crimogenics Exposed .......................................................... 375 C. Am I My Brother’s Utility Maximizer? ................................ 381 IV. RESTORATIVE JUSTICE FOR CORPORATIONS AND THEIR VICTIMS ......................................................................................... 383 A. The Corporate Criminal as Social Healer ........................... 384 B. Authorization in the U.S. Constitution ................................. 392 C. Authorization in the Sentencing Guidelines ......................... 397 D. A New Proposal ................................................................... 402 V. CONCLUSION .................................................................................. 407 I. INTRODUCTION A multinational corporation (MNC) with a U.S. nexus commits a white- collar crime overseas. Perhaps it bribes foreign officials for business purposes, or willfully violates trade sanctions; either way, it knowingly profits from the illegal exploitation of relatively weak foreign governments. The U.S. Department of Justice imposes a criminal fine in the tens or hundreds of millions of dollars, and publicly touts the achievement.1 But where does that money go? Those millions are deposited directly in the U.S. treasury,2 where they finance U.S. government programs and reduce the federal deficit. But the principal victims of that crime—the citizens of the government whose weakness the MNC exploited for personal gain—are scarcely helped at all. Owing to a peculiar but inherent quirk in extraterritorial white-collar criminal law, enforcement revenues accrue only to the perpetrator’s public fisc. 1 See, e.g., Press Release, U.S. Dep’t of Justice, Alcoa World Alumina Agrees to Plead Guilty to Foreign Bribery and Pay $223 Million in Fines and Forfeiture (Jan. 9, 2014), available at http://www.justice.gov/opa/pr/2014/January/14-crm-019.html, archived at http://perma.cc/CRQ8-CHFH (“The law does not permit companies to avoid responsibility for foreign corruption by outsourcing bribery to their agents, and, as today’s prosecution demonstrates, neither will the Department of Justice.” (internal quotation marks omitted)); Press Release, U.S. Dep’t of Justice, Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $450 Million in Combined Criminal Fines (Dec. 15, 2008), available at http://www.justice.gov/opa/pr /2008/December/08-crm-1105.html, archived at http://perma.cc/WVV7-WEVZ (“The [government] will continue to . . . ensure that the corporate and business communities are not tarnished with violations of the kind we are presenting here today.” (internal quotation marks omitted)). 2 See 31 U.S.C. § 3302(b) (2012). 2015] RESTORATIVE JUSTICE 359 We may seek consolation in the doctrine of general deterrence, the supposed “holy grail” of criminal punishment.3 By this logic, though the penalty money sits in U.S. coffers, it deters prospective violators from further criminal conduct.4 The problem is that it will not work. However effective deterrence may (or may not) be in reducing crime domestically,5 in extraterritorial white-collar enforcement it is doomed to fail: it will tend to increase net crime levels in the very countries whose social conditions we seek to improve. If our goal is to reduce crime—and it often is6—we therefore need an alternative theory of criminal punishment; one that can better address the conditions of international commerce than deterrence ever could. This Article provides that theory. Quite ironically, it is restorative justice: an approach to criminal punishment whereby the victims, community, and perpetrator all participate in diagnosing the causes of the criminal act, determining the appropriate punishment, and seeking the defendant’s reintegration into the very community whose norms it once violated.7 And to those who may retort that restorative justice does not and could not apply to large-scale corporate crime, my answer may be surprising: it already does. The “Sentencing of Organizations” chapter of the U.S. Sentencing Guidelines (the Guidelines)8 authorizes, if not encourages, sentencing procedures founded on restorative justice principles. Moreover, federal sentencing practices do now, and have for several decades, applied those principles to a specific area of federal white-collar enforcement: domestic environmental law.9 The only remaining task is to adapt this practice to extraterritorial white-collar enforcement.10 Accordingly, Part II explains deterrence theory, its grounding in the methodology of law and economics, and its status as the dominant contemporary theory of criminal punishment. It then proposes using anti- 3 Patrick J. Keenan, The New Deterrence: Crime and Policy in the Age of Globalization, 91 IOWA L. REV. 505, 515 (2006). 4 See, e.g., John Bronsteen et al., Happiness and Punishment, 76 U. CHI. L. REV. 1037, 1039 (2009); Neal Kumar Katyal, Deterrence’s Difficulty, 95 MICH. L. REV. 2385, 2386 (1997); A. Mitchell Polinsky & Steven Shavell, The Economic Theory of Public Enforcement of Law, 38 J. ECON. LITERATURE 45, 45 (2000); George J. Stigler, The Optimum Enforcement of Laws, 78 J. POL. ECON. 526, 526 (1970). 5 See, e.g., Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence?, 100 J. CRIM. L. & CRIMINOLOGY 765, 766 (2010). 6 See infra Part II.B. 7 See, e.g., JOHN BRAITHWAITE, RESTORATIVE JUSTICE & RESPONSIVE REGULATION 11 (2002); UNITED NATIONS OFFICE ON DRUGS & CRIME, HANDBOOK ON RESTORATIVE JUSTICE PROGRAMMES 6 (2006), available at http://www.unodc.org/pdf/criminal_ justice/06-56290_Ebook.pdf, archived at http://perma.cc/8FDC-3DS5. 8 U.S. SENTENCING COMM’N, GUIDELINES MANUAL ch. 8 (2014). 9 See infra Part IV.A. 10 See infra Part IV.C. 360 OHIO STATE LAW JOURNAL [Vol. 76:2 bribery law, particularly the U.S. Foreign Corrupt Practices Act,11 as a kind of case study in federal extraterritorial deterrence, and explains why the FCPA serves this purpose well.12 Using empirical evidence on the FCPA’s impact overseas, Part III builds a model to show why deterrence will tend to fail more generally in extraterritorial white-collar enforcement. It explains the unique conditions of international business and illustrates how these conditions will often produce an increase, rather than a decrease, in overseas crime. Part IV then shows restorative justice to be a superior, if counterintuitive, paradigm for extraterritorial white-collar enforcement. It develops a new sentencing procedure that would promote the interests of the federal enforcement agencies, help the overseas victims of corporate crime, and require no new legal authorization to implement. II. DETERRENCE THEORY, PURE AND PROUD Modern deterrence theory, with its underpinnings in law and economics, posits a rational enforcement authority that manipulates the cost-benefit trade- offs for prospective offenders to efficiently reduce crime. This section shows how the theory has remained largely unscathed despite two lines of potential criticism. It then introduces anti-bribery law as a case study in extraterritorial white-collar deterrence that illustrates deterrence’s unintended and troubling consequences in foreign jurisdictions. A. Law and Economics’ Rational Enforcement Authority The watershed work on public law enforcement in the law and economics paradigm is A. Mitchell Polinsky and Steven Shavell’s The Economic Theory of the Public Enforcement of Law.13 They explain that to the law and economics way of thinking, social welfare generally is presumed to equal the sum of individuals’ expected utilities. An individual’s expected utility essentially depends on four variables: whether she commits a harmful act, whether she is sanctioned (by fine, imprisonment, or both), whether she is a 11 Foreign Corrupt Practices Act of 1977 (FCPA), Pub. L. No. 95-213, 91 Stat. 1494, amended by Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 and by International Anti-Bribery and Fair Competition Act of 1998, Pub. L. No. 105-366, 112 Stat. 3302 (codified as amended in scattered sections of 15 U.S.C.). 12 This Article is the culmination of a long-term research project exploring the impact of federal business law generally, and anti-bribery law specifically, on developing countries. Previous installments include the following: Andrew Brady Spalding, Corruption, Corporations, and the New Human Right, 91 WASH. U. L. REV. 1365 (2014) [hereinafter Spalding, Corruption]; Andrew Brady Spalding, The Irony of International Business Law: U.S. Progressivism and China’s New Laissez-Faire, 59 UCLA L. REV. 354 (2011) [hereinafter Spalding, The Irony]; Andrew Brady Spalding, Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions Against Emerging Markets, 62 FLA. L. REV. 351 (2010) [hereinafter Spalding, Unwitting Sanctions]. 13 Polinsky & Shavell, supra note 4. 2015] RESTORATIVE JUSTICE 361 victim of someone else’s harmful act, and on her tax payment (which will reflect the costs of law enforcement, less any fine revenue collected).14 The individual thus wears two hats in the utility calculation: as potential wrongdoer, and as potential victim. The potential victim’s two variables— whether she is a victim and the extent of her taxes—are of course closely interconnected. Recognizing her potential victimization, she pays taxes to prevent it. The purpose of funding crime enforcement with her own taxes, then, is to prevent the disutility of victimization. The paradigm thus assumes that we pay taxes to increase our individual utility; were there no threat of victimization, the individual would have no reason to pay taxes. There’d be no utility in it; not faced with the threatened disutility of falling victim, her utility would not be maximized by paying taxes to finance public criminal law enforcement. The potential victims are taxpayers; the taxpayers are potential victims. The “enforcement authority’s problem” then is to maximize social welfare by finding the most efficient combination of the four key enforcement variables mentioned above: enforcement expenditures, the level of the fine, the length of imprisonment, and the standard for imposing liability.15 The disutility of crime is weighed against the cost of prevention, and the aim is to reduce crime with maximal cost-efficiency. The enforcement authority should expend only so much on enforcement as is necessary to reduce the disutility for the taxpayer. Following Cesare Beccaria’s admonition that it is “better to prevent crimes than to punish them,”16 law and economics seeks to deter crime by ensuring that the cost of punishment to a potential wrongdoer exceeds the rewards.17 The core assumption of deterrence is that potential wrongdoers will decide against the commission of a criminal act based on the fear of sanctions or punishment.18 It assumes that the potential (and perhaps hypothetical) wrongdoer calculates the utility of crime based on the benefits and costs of the criminal act as well as the benefits and costs of abstaining. The attributes of punishment that can be manipulated to maintain the proper cost-benefit ratio are its certainty, severity, and celerity (or swiftness).19 If set appropriately, the potential violator will succumb to deterrence because a rational choice would never result in the commission of a crime; the cost would prove too high in 14 Id. at 48. 15 Id. at 48–49. 16 See CESARE BECCARIA, ON CRIMES AND PUNISHMENTS 93 (Henry Paolucci trans., Bobbs-Merrill Educ. Publ’g 1963) (1764). 17 GEORGE B. VOLD ET AL., THEORETICAL CRIMINOLOGY 196–97 (5th ed. 2002). 18 Paternoster, supra note 5, at 766. 19 Id. at 783. 362 OHIO STATE LAW JOURNAL [Vol. 76:2 comparison to the perceived benefit.20 Punishment is said to have a deterrent effect when the fear or actual imposition of punishment leads to conformity.21 The paradigm remains largely unfazed by the potential problem of criminal overdeterrence. In civil law, by contrast, the cost of overdeterrence is well-recognized:22 if the penalty for causing a car accident were $1 million, people would cease driving.23 But for the kinds of intentional acts generally proscribed by criminal law, the risk of discouraging socially productive behavior, or of encouraging destructive behavior, is negligible. Because the goal is to achieve effective deterrence by setting punishment at a sufficiently high level to dissuade potential offenders, the “temptation to impose increasingly harsher penalties is strong.”24 The optimal level of intentional (as opposed to negligent) criminal conduct, generally speaking, is therefore zero. But scholars have, perhaps somewhat indirectly, addressed the problem of overdeterrence in two ways. These concern the risk that deterring a particular crime might increase the incidence of other crimes. The first is the problem of marginal deterrence: setting equally high penalties for crimes of unequal severity will tend to encourage the more severe crime. As George Stigler famously put it, “If the thief has his hand cut off for taking five dollars, he had just as well take $5,000.”25 Where the overall level of criminality might be understood as the number of crimes committed multiplied by their severity, disproportionate penalties for relatively mild criminal acts will remove the disincentive to engage in more serious crimes and thus increase overall levels of criminality. The second is based on Neal Katyal’s research on substitution. Katyal held that the public enforcement agency must consider how penalizing a given crime may increase the appeal of alternative, or substitute, crimes. An increase in the “price” of one crime may cause potential wrongdoers to substitute criminal act X with criminal act Y or Z.26 Accordingly, though enforcing the prohibition on X may well deter X, it may also increase the incidence of Y or Z.27 For both of these problems, the effort to deter a given crime has produced 20 See VOLD ET AL., supra note 17, at 196. 21 TERANCE D. MIETHE & HONG LU, PUNISHMENT: A COMPARATIVE HISTORICAL PERSPECTIVE 20 (2005). 22 See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 6.10 (8th ed. 2011) (describing the theory of optimal tort damages). For a discussion of civil punitive damages that violate the Due Process Clause of the Fourteenth Amendment, see State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416–28 (2003). 23 Bronsteen et al., supra note 4, at 1056 n.100. 24 Id. at 1055–56. The overdeterrence problem can arise with negligence crimes; negligent vehicular homicide would raise the same overdeterrence problems as the civil example above, such that the optimal level of such homicides may be greater than zero. 25 Stigler, supra note 4, at 527. 26 Katyal, supra note 4, at 2387. 27 The enforcement authority’s inclination to inflict an increasingly severe punishment may be further restrained in two ways. First, the enforcement costs must be no greater than is necessary to achieve the optimal level of deterrence. These costs would take two forms. 2015] RESTORATIVE JUSTICE 363 the collateral harm of an increase in another form of crime. But scholarship on the substitution problem, like marginal deterrence, would hardly constitute an attack on the essential theory. Scholars have gained somewhat more traction attacking the practice of deterrence. The core theory has given rise to a number of hypotheses that empiricists continue to test. Questions remain concerning to what extent an increase in the objective costs of punishment to a potential wrongdoer, particularly length of sentence, will decrease the incidence of crime; to what extent increasing enforcement resources will increase certainty and celerity; and whether objective increases in certainty, severity, or celerity will produce a proportional increase in the subjective perceptions of those attributes among wrongdoers and therefore exert a downward push on crime, etc.28 But note that these are questions of degree; while we do not know whether deterrence “works very well,”29 we know it works. The empirical evidence indeed demonstrates that deterrence measures succeed—however imperfectly—in reducing crime. Actors subject to the jurisdiction of a law that penalizes a given form of conduct with the requisite degree of certainty, severity, and celerity will engage in less of that conduct. We know this, and we might call it the upside of deterrence. And notice the corollary: if we know that actors subject to a criminal prohibition will engage in less of that conduct, we also know that actors not so subject will engage in more of it. Applied to white-collar enforcement, companies subject to the criminal prohibition on a particular form of profitable but socially undesirable conduct will engage in less of that conduct than companies that are not so subject; companies not subject to that prohibition will engage, relatively speaking, in more of that conduct. This is the downside of deterrence’s upside. To clarify, what I am here calling the downside is not a consequence of its upside; it is merely a logical corollary that will prove important in the analysis below. And in international business, governed by the extraterritorial application of criminal laws, where the law’s stated object is to deter overseas crime, the downside proves tricky. Most obvious are the costs of detecting, trying, and imprisoning a criminal, which are of course substantial. Bronsteen et al., supra note 4, at 1056–57. Under the logic of deterrence, they cannot become excessively so, lest the taxpayers’ disutility exceeds the risk of victimization. Id. But additionally, society incurs the opportunity cost of removing potentially productive individuals from society through imprisonment, a factor that is (from a narrowly economic perspective) especially pronounced in white-collar crime. Id. In addition to these social costs, utilitarianism would value the welfare (though not the rights) of the defendant; he need not suffer any greater a punishment than is necessary for deterrence purposes. Id. 28 See Paternoster, supra note 5, at 787–818. 29 Id. at 766; see DAVID M. KENNEDY, DETERRENCE AND CRIME PREVENTION: RECONSIDERING THE PROSPECT OF SANCTION 9 (2009). 364 OHIO STATE LAW JOURNAL [Vol. 76:2 B. A Case Study in Extraterritorial Deterrence: Anti-Bribery Law For three reasons, the Foreign Corrupt Practices Act30 is well-suited to illustrate the unanticipated consequences of extraterritorial white-collar enforcement. First, it is perhaps the clearest case of a federal statute criminalizing extraterritorial white-collar conduct that, by all indications, Congress intended as a tool for improving overseas legal institutions. I have made that argument elsewhere at some length,31 and will only summarize it briefly here. The legislative history makes abundantly clear that Congress sought to increase transparency specifically and improve market conditions generally in developing countries through the FCPA. Congressional deliberations on the need for an extraterritorial anti-bribery statute in the 1970s were initially precipitated by the discovery that the Lockheed Corporation, the flagship U.S. defense contractor, had paid bribes to government officials in Japan, the Netherlands, and Italy to win bids.32 Each of these countries was thought critical to the growth of democratic institutions, and revelations of corporate bribery undermined liberalism’s credibility. Congressman Stephen Solarz, a Democrat from New York, argued in Congress that Lockheed’s payments to Japanese officials put “‘[t]he democratic system in Japan . . . in grave danger.’”33 Opponents within Japan of that country’s alliance with the U.S. were handed what he called: [A] terribly effective weapon to drive a wedge between two close allies. At a time of uncertainty due to the shifting balances of power in Asia, our strongest and most stable ally in the region [was] undergoing unnecessary turbulence, and [a] relationship which is at the very heart of our foreign policy [was] potentially jeopardized.34 Solarz thought the “most serious” and “delicate” situation was Italy, which was “one of the keys to the southern flank of NATO” and whose government was equally split between a liberal party and the Communist Party.35 He noted 30 Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (codified as amended in scattered sections of 15 U.S.C.). 31 Portions of the following analysis previously appeared in Spalding, Corruption, supra note 12, at 1375–79; Spalding, Unwitting Sanctions, supra note 12, at 357–60. 32 See WILLIAM D. HARTUNG, PROPHETS OF WAR: LOCKHEED MARTIN AND THE MAKING OF THE MILITARY-INDUSTRIAL COMPLEX 115–32 (2011). 33 Unlawful Corporate Payments Act of 1977: Hearings Before the Subcomm. on Consumer Prot. & Fin. of the H. Comm. on Interstate & Foreign Commerce, 95th Cong. 172 (1977) [hereinafter 1977 Protection Hearings] (statement of Rep. Stephen S. Solarz) (quoting “[a] very senior politician close to former [Japanese] Prime Minister Takeo Mike”). 34 Foreign Payments Disclosure: Hearings Before the Subcomm. on Consumer Prot. & Fin. of the H. Comm. on Interstate & Foreign Commerce, 94th Cong. 141 (1976) [hereinafter 1976 Protection Hearing] (statement of Rep. Stephen S. Solarz). 35 Id. 2015] RESTORATIVE JUSTICE 365 that “[a]llegations of payments by Lockheed served to advance the Communist cause in Italy where the Communist bloc was strengthened by the sight of corrupt capitalism.”36 Congress feared that the Communist Party could gain a majority in the Italian parliament and the prospects for building democratic institutions would be lost.37 The implications of corporate bribery for the U.S. effort to promote the growth of liberal institutions were thus “staggering and in some cases, perhaps irreversible.”38 The implications that Solarz feared were irreversible concerned the building of liberal economic and political institutions abroad. The institution- building view of the FCPA was expressed with some poignancy by Democrat George Ball, who had become famous as a member of the Kennedy and Johnson Administrations for his opposition to the Vietnam War. Ball explained: The vast volume of speeches, pamphlets, and advertising copy and propaganda leaflets extolling the virtues of free enterprise are cancelled every night when managements demonstrate by their conduct that a sector of multinational business activity is not free; it is bought and paid for. This is a problem that, like so many others, has relevance in the struggle of antagonistic ideologies; for, when our enterprises stoop to bribery and kickbacks, they give substance to the communist myth—already widely believed in Third World countries—that capitalism is fundamentally corrupt.39 Continuing this theme, the Deputy Legal Adviser in the Department of State under President Ford testified that corruption “jeopardizes the important interests we share with our friends abroad” because it undermines a form of government “upon which social progress, economic justice, and perhaps, ultimately, world peace depends.”40 Treasury Secretary William E. Simon further stated that it “adversely affect[s] our relations with foreign governments and can contribute to a general deterioration in the climate for fair and open international trade and investment.”41 He feared that bribery 36 1977 Protection Hearings, supra note 33, at 173 (statement of Rep. Stephen S. Solarz). 37 1976 Protection Hearing, supra note 34, at 141. 38 Id. at 2 (statement of John M. Murphy, Chairman, Subcomm. on Consumer Prot. & Fin.). 39 Foreign and Corporate Bribes: Hearings Before the S. Comm. on Banking, Hous. & Urban Affairs, 94th Cong. 41–42 (1976) [hereinafter 1976 Senate Banking Hearings] (statement of George Ball, Senior Managing Director, Lehman Brothers). 40 The Activities of American Multinational Corporations Abroad: Hearings Before the Subcomm. on Int’l Econ. Policy of the H. Comm. on Int’l Relations, 94th Cong. 23 (1975) (statement of Mark B. Feldman, Deputy Legal Adviser, United States Department of State). 41 1976 Senate Banking Hearings, supra note 39, at 85 (statement of William E. Simon, Secretary, United States Department of the Treasury). Ultimately, President Ford would formally state that reports of bribery “tend to destroy confidence” in liberal- democratic institutions. GERALD R. FORD, SPECIAL MESSAGE TO THE CONGRESS 366 OHIO STATE LAW JOURNAL [Vol. 76:2 would weaken, rather than strengthen, these legal and economic institutions; the statute’s purpose, plainly, was to strengthen them. Whether we sought to promote liberal legal and economic institutions overseas out of concern for those countries, or merely to advance our strategic interests, is of course debatable. But that is a question of why we should build institutions through commerce, not whether we should do so. With the integration of these themes into both the Senate42 and House43 Reports, the bipartisan consensus concerning the FCPA’s intended effect becomes clear. The notion that the United States should enforce the bribery prohibition to wash our hands of overseas corruption, irrespective of its impact on overall corruption levels, was utterly absent from the deliberations. Rather, Congress envisioned a statute that would improve the conditions of foreign investment and, in turn, of global economic and political development, by promoting efficient, transparent, and relatively bribery-free institutions. Second, the current FCPA enforcement regime is by all indications rooted in a deterrence paradigm. The enforcement agencies’ principal response to findings of bribery is an investigation and a substantial fine, often in the hundreds of millions of dollars.44 Owing to their limited resources, the enforcement agencies must rely on publicizing these high-penalty actions to incentivize compliance among other prospective wrongdoers, thereby achieving a measure of general deterrence. Whether the enforcement agencies have adopted this theory of punishment consciously or not is perhaps less clear, and ultimately beside the point. The regime of selective investigation, substantial penalty, and deliberate publicizing to the broader community of similarly situated corporations is quintessential deterrence. Third, we have empirical evidence on the impact of enforcement on capital flows into overseas markets. And that evidence raises, but does not quite answer, questions about how these capital flow changes will impact net bribery levels. Though I have likewise discussed that evidence at some length elsewhere,45 it is worth a cursory review here. Empirical data from multiple sources demonstrate that anti-bribery enforcement causes companies subject to FCPA jurisdiction to withdraw their TRANSMITTING PROPOSED FOREIGN PAYMENTS DISCLOSURE LEGISLATION, H.R. DOC. NO. 94-572, at 1 (1976). When the Carter Administration moved in, his Treasury Secretary stated, “[t]he Carter Administration believes that it is damaging both to our country and to a healthy world economic system for American corporations to bribe foreign officials.” Foreign Corrupt Practices and Domestic and Foreign Investment Disclosure: Hearing Before the S. Comm. on Banking, Hous. & Urban Affairs, 95th Cong. 67 (1977) (statement of Hon. W. Michael Blumenthal, Secretary, United States Department of the Treasury). 42 S. REP. NO. 95-114, at 3–4 (1977). 43 H. REP. NO. 95-640, at 4‒5 (1977). 44 See Richard L. Cassin, Alcoa Lands 5th on Our Top Ten List, FCPA BLOG (Jan. 10, 2014, 1:08 AM), http://www.fcpablog.com/blog/2014/1/10/alcoa-lands-5th-on-our-top-ten- list.html, archived at http://perma.cc/GHV8-PYX7 (detailing the top ten FCPA enforcement actions by penalty, ranging from $152 million to $800 million). 45 See Spalding, Corruption, supra note 12, at 1376–81. 2015] RESTORATIVE JUSTICE 367 capital from developing countries. This, in turn, creates the very conditions in which bribery proliferates and illiberal regimes gain influence. Two sets of economic studies have demonstrated that anti-bribery enforcement causes corporations subject to its jurisdiction to do less business in bribery-prone markets. The first, in 1995 by James Hines, focused on the impact of the FCPA alone, finding that, controlling for other variables, FCPA enforcement caused a reduction in business in bribery-prone countries.46 To clarify, the thesis is not that U.S. companies were investing less overall in developing countries in 1995 than they were in 1976—indeed, such a conclusion would be absurd and patently unsupportable. Rather, the finding was that companies did less business in such countries than they would have if the FCPA did not exist. This initial study further found that total investment in bribery-prone countries did not drop; rather, U.S. investment was replaced by investment from countries without bribery prohibitions.47 A second set of studies conducted after enactment of the Organisation for Economic Co-operation and Development (OECD) Convention Against Bribery confirmed the finding that as anti-bribery legislation became more prevalent, bribery-prone countries received less of their foreign direct investment (FDI) from OECD nations and more from nations without bribery prohibitions.48 Professor Alvaro Cuervo-Cazurra essentially confirmed and expanded upon Hines’s thesis.49 Cuervo-Cazurra’s study was narrower than Hines’s in that he focused exclusively on FDI, but broader in that Cuervo- Cazurra used data on bilateral FDI inflows from 183 home economies to 106 host economies with varying quantified corruption levels.50 Cuervo-Cazurra further found that the phenomenon of businesses from countries with anti-bribery legislation investing less in highly corrupt countries 46 James R. Hines, Jr., Forbidden Payment: Foreign Bribery and American Business After 1977, at 1 (Nat’l Bureau of Econ. Research, Working Paper No. 5266, 1995), available at http://www.nber.org/papers/w5266.pdf, archived at http://perma.cc/6577- H8S4. 47 See id. at 20. 48 Alvaro Cuervo-Cazurra, Who Cares About Corruption?, 37 J. INT’L BUS. STUD. 807, 818–19 (2006). 49 Id. at 818. Cuervo-Cazurra further noted that Hines’s study had become subject to various methodological disputes. See id. at 808‒09 (citing Shang-Jin Wei, How Taxing Is Corruption on International Investors?, 82 REV. ECON. & STAT. 1, 2 (2000)). Cuervo- Cazurra believed that he had improved upon Hines’s methodology and yet confirmed the results. See id. Evaluating these methodologies is not the purpose of this Article. For further empirical studies confirming FCPA enforcement’s negative impact on FDI, see JOHANN GRAF LAMBSDORFF, THE INSTITUTIONAL ECONOMICS OF CORRUPTION AND REFORM 174–75 (2007); Paul J. Beck et al., The Impact of the Foreign Corrupt Practices Act on US Exports, 12 MANAGERIAL & DECISION ECON. 295, 300 (1991); Anna D’Souza, The OECD Anti-Bribery Convention: Changing the Currents of Trade, 97 J. DEV. ECON. 73, 79 (2012); Rajib Sanyal, Effect of Perception of Corruption on Outward U.S. Foreign Direct Investment, 10 GLOBAL BUS. & ECON. REV. 123, 137 (2008). 50 Cuervo-Cazurra, supra note 48, at 811. 368 OHIO STATE LAW JOURNAL [Vol. 76:2 was not limited to the United States. Rather, high levels of corruption in a host country generally resulted in less FDI from signatories to the OECD convention.51 The same phenomenon that Hines identified with respect to the United States thus became more widespread as a result of the OECD convention. The underside of the phenomenon that Hines first identified— countries that are not bound by anti-bribery legislation continue to invest in corrupt countries—was likewise confirmed by Cuervo-Cazurra. Post-OECD, as signatory countries invested less in corrupt countries, countries with higher levels of corruption received relatively more FDI from countries with similarly higher corruption levels.52 The result of these trends is that as anti-bribery legislation became more widespread, corrupt countries received less of their FDI from less-corrupt countries and more of their FDI from more-corrupt countries.53 In a second empirical study,54 Cuervo-Cazurra verified and restated his finding that countries which implemented the OECD convention had become “more sensitive” to corruption and had reduced their FDI in more-corrupt countries.55 He then proposed a modification of Hines’s original thesis, concluding that prior to the OECD convention, U.S. investors were not in fact investing less in corrupt countries, but that they began investing less after OECD ratification.56 In other words, the FCPA standing alone did not induce U.S. investors to invest less in corrupt countries, but rather the OECD induced both U.S. and other OECD signatories to invest less.57 In addition to this empirical evidence, the historical record teaches that the U.S. Government formally embraced this very position: that FCPA enforcement reduced U.S. investment in developing countries. After the FCPA’s enactment in 1977, the U.S. government began lobbying the Western world to enact a similar prohibition, ultimately succeeding in 1997 with the OECD Convention on Combating Bribery.58 In testimony before Congress, a common theme was that the U.S. business community was losing business overseas as a result of the FCPA. In his message transmitting the convention, President Bill Clinton noted that the United States “has been alone” in criminalizing overseas bribery and that “United States corporations have contended that this has put them at a significant disadvantage in competing for 51 See id. at 807–08. 52 Id. at 808. 53 Id. 54 Alvaro Cuervo-Cazurra, The Effectiveness of Laws Against Bribery Abroad, 39 J. INT’L BUS. STUD. 634 (2008). 55 Id. at 644. 56 Id. at 645. 57 See D’Souza, supra note 49, at 85. 58 Organisation for Economic Co-Operation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, S. TREATY DOC. NO. 105-43 (1998) [hereinafter OECD Anti-Bribery Convention]. 2015] RESTORATIVE JUSTICE 369 international contracts with respect to foreign competitors who are not subject to such laws.”59 Numerous congressmen testified that the convention would “level[] the playing field,”60 as did SEC Associate Director Paul Gerlach.61 Ultimately, President Clinton would adopt this metaphor in his signing statement.62 Moreover, the Clinton Administration calculated a very specific estimate of the amount of business that U.S. corporations were losing. President Clinton indicated in his signing statement that the value of the contracts lost to U.S. businesses each year as a result of the FCPA was $30 billion.63 The Undersecretary of State64 and the General Counsel of the Secretary of Commerce65 encompassed the same figure in their testimony. The argument proved persuasive and the U.S. joined the OECD Convention. But the empirical studies merely confirm what common sense would teach: if we increase the costs of conducting business through the FCPA, we will tend to do less business in corrupt countries. Indeed, this sense is captured in the accumulation of anecdotal evidence in surveys and congressional testimony. A 2009 Dow Jones anti-corruption compliance survey announced in a press release entitled “Confusion About Anti-Corruption Laws Leads Companies To Abandon Expansion Initiatives,” found that 51% of companies had delayed a business initiative as a result of the FCPA and 14% had abandoned an initiative altogether.66 More recently, a 2011 survey by the accounting firm KPMG found that among executives surveyed in the United States and the United Kingdom, “[m]ore than 70 percent . . . agreed there are places in the world where business cannot be done without engaging in bribery and corruption,” and that approximately 30% of the respondents indicated that they deal with this risk by not doing business in certain countries.67 59 Id. at III. 60 E.g., The International Anti-Bribery and Fair Competition Act of 1998: Hearing Before the Subcomm. on Fin. & Hazardous Materials, 105th Cong. 1 (1998) [hereinafter 1998 House Finance Hearing] (statement of Rep. Michael G. Oxley, Chairman, Subcomm. on Fin. & Hazardous Materials); id. at 4 (statement of Rep. Tom Bliley, Chairman, H. Comm. on Commerce). 61 Id. at 11 (statement of Paul V. Gerlach, Associate Director, Division of Enforcement, Securities and Exchange Commission). 62 Statement on Signing the International Anti-Bribery and Fair Competition Act of 1998, 2 PUB. PAPERS 2011 (Nov. 10, 1998). 63 Id. 64 S. REP. NO. 105-19, at 45 (1998) (statement of Hon. Stuart E. Eizenstat, Under Secretary of State for Economic, Business, and Agricultural Affairs). 65 1998 House Finance Hearing, supra note 60, at 6 (statement of Andrew J. Pincus, General Counsel, Department of Commerce). 66 See Press Release, Dow Jones, Dow Jones Survey: Confusion About Anti- Corruption Laws Leads Companies to Abandon Expansion Initiatives (Dec. 9, 2009), available at http://fis.dowjones.com/risk/09survey.html, archived at http://perma.cc/Y9TS- R2X3. 67 Mike Koehler, Survey Says . . ., FCPA PROFESSOR (June 2, 2011, 5:25 AM), http://fcpaprofessor.blogspot.com/2011/06/survey-says.html, archived at http://perma.cc 370 OHIO STATE LAW JOURNAL [Vol. 76:2 This capital withdrawal, and other countries’ exploitation of it, reappeared in more recent congressional testimony. During the June 2011 hearing on amending the FCPA, attorney George Terwilliger noted that while we are realizing the goal of heightened compliance with anti-bribery provisions: [T]here is another less desirable effect . . . when companies forgo business opportunity out of concern for FCPA compliance risk. This hurts the creation of [U.S.] jobs and the ability of U.S. companies to compete with companies elsewhere that do not have to concern themselves with uncertainties of the terms and requirements of the FCPA. . . . [T]here is hidden cost borne of the uncertainties attached to FCPA compliance risk. . . . [C]ompanies sometimes forgo deals they could otherwise do, take a pass on contemplated projects, or withdraw from ongoing projects and ventures.68 The label we generally attach to the government-induced withdrawal of capital from developing countries in protest of their political conditions is economic sanctions. The broader project, of which this Article is a part, analyzes the “sanctioning effect” of anti-bribery law.69 Economic sanctions literature teaches that when some part of the world sanctions a given country, a capital void is created. Because the sanctioned country still needs that capital (i.e., FDI) to stimulate its economic growth, it will look to countries not participating in the sanctions to fill the void. These latter countries are sometimes called “black knights”—they rescue the sanctioned country, but through nefarious means.70 Anti-corruption law is today creating a similar sanctioning effect, as the empirical evidence above concerning “ownership substitution” and the survey data demonstrate. The principal black knight in the anti-bribery space is China—a country with ample capital, an aggressive foreign and economic policy, and a near-complete absence of extraterritorial anti-corruption enforcement.71 When companies subject to U.S. jurisdiction find the risk of a bribery violation too high, and they withdraw from a project, or a sector, or a country, the resulting FDI void is frequently filled by Chinese or other “black knight” companies who are not subject to extraterritorial anti-bribery enforcement. But what effect does this dynamic have on our deterrence goals? What is the net impact on the overall rates of bribery, for example, in the host country? /V89T-U82Q (quoting KPMG, GLOBAL ANTI-BRIBERY AND CORRUPTION SURVEY 2011, at 18 (2011)). 68 Foreign Corrupt Practices Act: Hearing Before the H. Subcomm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 112th Cong. 37 (2011) (statement of George J. Terwilliger, III, Partner, White & Case LLP). 69 See Spalding, The Irony, supra note 12, at 402–03; Spalding, Unwitting Sanctions, supra note 12, at 372–73. Portions of Parts I.A and I.B have been adapted from material that previously appeared in one or more of those Articles. 70 See Spalding, Unwitting Sanctions, supra note 12, at 397. 71 See Spalding, The Irony, supra note 12, at 360–61. 2015] RESTORATIVE JUSTICE 371 The empirical evidence does not address this question. The next section builds a model to do so. III. DETERRENCE DETERIORATES This section illustrates how extraterritorial deterrence will ultimately fail to deliver on its promise of efficiently protecting prospective victims from crime. Using empirical evidence, it builds a quantitative model to demonstrate the impact of anti-bribery enforcement on overall levels of bribery in a host country. Our deterrence efforts ultimately prove to be neither effective nor efficient: we cannot reduce crime, and may even increase crime; and we cannot justify this, or any other result, to those taxpayers who seek utility maximization through cost efficiency. Though scholars up to now have not seemed particularly concerned about the collateral economic harm of deterring criminal behavior, contemporary international white-collar enforcement presents new challenges to the logic of deterrence. Despite deterrence’s relatively long history, originating in the eighteenth-century works of Montesquieu,72 Beccaria,73 and Bentham,74 the concept fell out of fashion and was largely neglected75 until the seminal work of Gary Becker in the 1960s.76 And owing largely to Cold War ideological divisions, international business—and particularly the flow of capital from developed to developing countries—would not increase significantly until after the collapse of communism in the early 1990s. As will be shown below, this new economic order raises significant theoretical and practical problems for deterrence. Extraterritorial conduct of any sort already raises formidable law enforcement challenges: evidence is difficult to collect, foreign enforcement authorities may not be cooperative or well resourced, and cultural sensitivities must be navigated. But this Article argues that the challenges of extraterritorial white-collar deterrence run far deeper. By definition, many or most actors committing crimes in foreign jurisdictions are not subject to the same set of disincentives: companies seeking to extract Nigeria’s oil will hail from the United States, the European Union, Russia, China, and elsewhere, and these countries will have substantially different white-collar crime regimes in place. The United States, for example, may be able to deter socially destructive behavior among U.S. companies and other companies subject to U.S. jurisdiction, but it cannot readily alter the behavior of those companies that lie 72 MONTESQUIEU, THE SPIRIT OF THE LAWS 161–62 (David Wallace Carrithers ed., Thomas Nugent trans., Univ. of Cal. Press 1977) (1748). 73 BECCARIA, supra note 16. 74 JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 170–71 (1965). 75 See Paternoster, supra note 5, at 773. 76 See, e.g., Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 170 (1968). 372 OHIO STATE LAW JOURNAL [Vol. 76:2 beyond its jurisdiction. To the extent that a country wishes to reduce criminal conduct in overseas locations where only a portion of all actors is subject to its jurisdiction, this becomes problematic. Of course, it may well be true that in certain areas of law the aim is not to reduce the overall levels of a given sort of extraterritorial crime. We may wish only to deter the conduct among our own citizens, perhaps untroubled by the impact our own deterrence efforts may have on overall levels of criminality in those foreign locations. But other areas of law, such as anti-bribery law, prohibit the overseas conduct categorically, without regard to whether the conduct has any harmful impact whatsoever on U.S. markets or persons. This section shows just how problematic that goal will prove to be. It develops a model77 that illustrates how, given current and foreseeable future legal and economic conditions, extraterritorial deterrence has pronounced crimogenic78 tendencies. That is, in attempting to reduce crime overseas, wielding the tools of deterrence will often create the conditions in which the conduct we seek to deter actually proliferates. In building the model, this Article will not speculate on how a perfectly rational government might enforce a bribery prohibition. Rather, it seeks to understand how actual governments, subject to constraints in their knowledge and other resources, do enforce such laws. Part III.A explains the various assumptions that are necessary if the subsequent model is to mimic reality to any meaningful degree. Part III.B then builds that model, and Part III.C draws out the implications that pose particular problems for utilitarianism. A. Subrational Governments in Inefficient Markets FDI, particularly in developing countries, has three inherent characteristics that distinguish it from the domestic conduct that deterrence scholarship generally assumes. In combination, they create a kind of perfect storm in which deterrence will often prove self-defeating. The first I will call selective criminalization. A given form of extraterritorial conduct may well be criminalized by a particular home jurisdiction: think of express statutory prohibitions on overseas bribery or monopolistic conduct in the United States, and the dedication of substantial resources to their enforcement. But other countries may fall into either of two alternative categories: those that do not enforce their prohibitions, and those 77 This model was first presented in a Chapman University School of Law Symposium entitled, What Can Law and Economics Teach Us About Corporate Social Responsibility? An earlier version of this model has been published. See generally Andrew Spalding, The Problem of Deterring Extraterritorial White-Collar Crime, 17 CHAP. L. REV 355 (2014). 78 For discussion of crimogenics in deterrence, see Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 GEO. L.J. 949, 985 (2003); see also KENNEDY, supra note 29, at 54–72. 2015] RESTORATIVE JUSTICE 373 that have not enacted such prohibitions. In other words, among all actors in a given foreign jurisdiction, the conduct is only selectively criminalized: the criminal prohibition applies to some of the companies pursuing Nigerian oil, but not to others. The United States may wish to deter bribery there, but lacks jurisdiction over many of the actors. The second characteristic I will call the discretionary investment forum. A typical U.S.-based company will be doing business in the United States. The enforcement authority thus need not worry whether that company will choose to continue doing business there (unless, of course, a given criminal prohibition threatens to drive a company out of business altogether, but this is rare and probably confined to highly dubious business models). But overseas investment forums are inherently discretionary: a U.S.-based company may choose to focus its efforts in the United States, or to enter overseas markets, and if the latter, whether to focus on the developed or developing world, and whether to invest in particular countries. These countries will vary in their legal, economic, and cultural environments, potentially creating varying levels of risk that a U.S.-based company will engage in conduct that its home jurisdiction criminalizes. Accordingly, the enforcement authority must consider whether its companies will do business in these jurisdictions at all. When the enforcement authority uses the tools of deterrence to raise the costs of particular behavior, the costs may rise to the level that, in certain contexts, the risk becomes too great. Companies may then use their discretion to not invest in particular projects, sectors, or countries. The effort to deter crime has thus deterred investment. Should the enforcement authority care? The question goes to the very heart of the law and economics methodology. Richard Posner has characterized law as “a system for maximizing the wealth of society.”79 The aim of enforcement is thus to increase wealth, for individual persons and for society generally. The deterrence of investment in foreign countries has implications for both. Companies may forego relatively efficient investment opportunities for safer, but less efficient (and profitable) opportunities. This, in turn, impacts the wealth of both the capital-exporting and the capital-importing nation: the exporter’s GDP is negatively impacted by the diminished profits of its companies; and the importer’s GDP is negatively impacted by the loss of foreign direct investment. If deterrence is understood as one of many mechanisms for increasing social wealth, deterring investment in particular discretionary investment forums is problematic. This becomes especially true in developing countries where the need to maximize wealth is most pressing. The third characteristic I will call investor substitution, and it is alluded to in the empirical studies mentioned above. Assume, for purposes of this theory, that the companies from diverse jurisdictions are interchangeable—that companies from the United States, Germany, and China are equally capable of providing the given good or service. This is of course not true in all industries; 79 POSNER, supra note 22, § 2.2. 374 OHIO STATE LAW JOURNAL [Vol. 76:2 highly technologically sophisticated sectors, for example, will tend to favor companies from more developed countries. But the gap is narrowing as developing countries like China progress, and the gap does not exist at all for many or most industries. Further assume that the host country’s need for FDI is constant, such that if companies originating from one jurisdiction are disinclined to do business in the manner expected by the host country, that host country will seek the investment from other jurisdictions. Given these assumptions, quasi-criminalization and the discretionary investment forum will result in investor substitution. Companies from a country that enforces a given criminal prohibition—again, think of the United States enforcing a bribery prohibition—may find the risk (say, of paying bribes in Nigeria) too high. Those companies may choose not to invest in countries like Nigeria (as ample empirical evidence demonstrates).80 The host country, which remains in need of the FDI, will seek it from companies that are from jurisdictions that do not enforce the prohibition. Because these companies can provide roughly the same good or service—in other words, the substitution costs to the host country are negligible—they will become substitute foreign investors. This analysis is related to, but significantly different from, the previous work on substitution. That body of scholarship, as noted above, has focused on a given actor substituting criminal acts Y and Z for criminal act X. It assumed a given set of actors, choosing among alternative forms of criminality. The principle of investor substitution is quite different. It assumes alternative actors all deciding whether to engage in the same form of criminality (or, to be clear, conduct that one jurisdiction deems criminal, though others do not). It is a variation on the substitution thesis that applies uniquely to the realm of extraterritorial enforcement. While these conditions characterize the business environment that governments try to regulate, a second set of conditions will describe how governments might go about that regulation. This Article does not assume the existence of a perfectly rational enforcement authority. Rather than exploring what a hypothetical authority should do, it explores the implications of what actual governments would do or have done. It posits a number of conditions that closely resemble the actual world of anti-bribery enforcement, conditions which would likely be typical of other areas of extraterritorial white-collar criminal enforcement as well. Such an enforcement authority is, predictably, economically subrational in several important respects. First, the enforcement authority assumes that the optimal level of bribery is zero, and does not engage in sophisticated arguments about whether some amount of bribery may actually be efficient. This assumption holds true both for bribery among companies subject to its jurisdiction and for overall levels of bribery in the host countries as well. Alternatively, one might assume that the enforcement authority is guided by a deontological argument—that bribery 80 For a summary of the empirical literature, see Spalding, Corruption, supra note 12, at 1375–79. 2015] RESTORATIVE JUSTICE 375 is inherently wrong—rather than an assumption about the relationship between bribery and economic efficiency. Either way, the authority is determined to reduce bribery as far as possible. Second, and relatedly, the agencies of the enforcement authority that enforce the bribery prohibition will actually take measures to deter bribery without regard for their impact on economic efficiency. Whatever they may have assumed about the relationship between bribery and efficiency, the statute charges the agencies with reducing bribery and makes no mention of its economic implications. Third, the enforcement authority is unwilling or unable to impose a combination of enforcement expenditures and level of penalty that would immediately reduce bribery to zero. It is faced with limited enforcement resources, uncertain political support, and imperfect empirical knowledge about the effects of enforcement on crime. Similarly, it likely subscribes to notions of fairness that will prevent it from imposing the exorbitant penalties that could deter bribery where the probability of detection was more limited. Thus constrained, the enforcement authority experiments with varying levels of enforcement over time (which is precisely what has occurred in the United States).81 Accordingly, the illustration below posits a recognizably subrational enforcement authority, and uses law and economics principles to trace out the implications of that authority’s enforcement decisions. B. Crimogenics Exposed Assume, then, a developing country (the host country) that solicits foreign direct investment in its infrastructure sector. In this country and sector, bribery is quite common. Further assume that companies from two jurisdictions— Jurisdiction A and Jurisdiction B—have historically invested in this sector.82 All firms competing in the host country’s infrastructure sector are from one of these jurisdictions; no companies from jurisdictions other than A or B are investing there. The host country will regularly issue requests for proposals (RFPs) and companies will submit bids in an effort to win contracts. Each contract involves a variety of transactions in which bribes would typically be paid: some would be paid during the bidding process (preparing and submitting the bid, then winning the contract) and others would be paid in the course of performing the contract (visas, permits, inspections, etc.). Further assume that the number of transactions per contract is fixed, resulting in a fixed number of 81 See id. at 1371–75. 82 I use “jurisdiction” rather than “country” because often the jurisdiction of a given country will extend to companies from other countries as well—for example, certain foreign companies are subject to the jurisdiction of the U.S. extraterritorial anti-bribery statute, such that even though they do not reside in the United States, they are nevertheless “from” the U.S. jurisdiction. 376 OHIO STATE LAW JOURNAL [Vol. 76:2 total transactions. For purposes of this argument, assume that 100% of all business transactions in the host country’s government have involved bribes. At a time that we shall call Time 1, neither Jurisdiction A nor Jurisdiction B is enforcing an extraterritorial bribery prohibition. Firms from both A and B therefore pay bribes freely. But Jurisdiction A firms are more efficient than Jurisdiction B firms, such that A firms in Time 1 win 60% of the contracts and B firms win 40%. The chart below captures these numbers. Table 1 Time Enforcement Level % Market Share for Firms from Jurisdiction A % Bribes That A Firms Pay in Their Transactions Overall Rate of Bribery in Host Country T1 None 60 100 100 Firms from Jurisdiction A win 60% of the contracts, but pay bribes in 100% of the transactions. Jurisdiction B firms thus have a 40% market share, and likewise bribe 100% of the time. The overall rate of bribery in the infrastructure sector of the host country is therefore 100% in Time 1. However, at Time 2, Jurisdiction A announces that it will begin enforcing an extraterritorial criminal bribery prohibition. The enforcement agencies are, again, subrational actors, so they are unable to implement an enforcement regime that would reduce bribery to zero: they cannot dedicate the resources necessary to raise the probability of detection to the requisite level, and fairness principles do not allow them to impose exorbitant penalties that would compensate for the low level of detection. Constrained as they are by limited resources and by fairness, they commence what we will call a low level of enforcement. Jurisdiction B does not follow suit and does not implement any kind of extraterritorial bribery prohibition, so B firms continue to bribe freely. The host country issues a new set of RFPs and awards all available contracts to firms from Jurisdictions A and B. A firms now become what we will call reluctant bribe payers. They do not stop paying bribes altogether, but they begin searching for ways to avoid paying bribes where possible while remaining present in the sector and profitable. While they may have previously paid a small bribe to expedite a visa approval, they are now willing to wait; instead of paying a bribe to send their goods immediately through customs, their ships wait in line for days in the harbor. Similarly, the government of Jurisdiction A begins working on behalf of its companies to reduce the demand for bribery in the host country (as the U.S. and U.K. governments do today). The reluctant bribe payers (companies from Jurisdiction A) recognize that avoiding bribes will often reduce their efficiency—waiting in the harbor for customs approval is not without cost to the company. But they are willing to absorb these costs to reduce the risk of penalty for violating the prohibition. 2015] RESTORATIVE JUSTICE 377 Although the risk of penalty is high enough to deter a certain amount of bribery, it is not high enough to completely stop paying bribes. For reluctant bribe payers, the benefits of continuing to invest in the host country remain high enough that the company can pay some bribes and accept the risk that it will be caught and penalized for violating the bribery prohibition. In the course of continuing to do business in the host country, the reluctant bribe payer will therefore encounter three kinds of transactions. The first is where the risk of detection is sufficiently high (or the firm is sufficiently principled) that it refuses to pay the bribe but can still find ways to complete the transaction. These may entail increased costs for the firm (such as waiting in line at port) but owing to the firm’s efficiency (or the less than perfectly competitive market conditions) the firm can absorb these costs while remaining profitable. Alternatively, the firm may seek the diplomatic assistance of the governments (in the United States, these would be the Departments of Commerce or State). This is the kind of conduct that anti- bribery advocates seek to incentivize and may generally assume occurs. However, the firm will encounter a second kind of bribe, in which it will likewise refuse to pay but cannot complete the transaction without it. The firm must therefore knowingly forego the transaction; the best example would be a lost bid in a RFP. For the third kind of bribe, the risk of detection may be sufficiently low, or the costs of foregoing the transaction are sufficiently high (the company really needs this particular bid, or cannot afford to wait three days in port) that the firm will pay the bribe and accept the risk of detection.83 Given the three types of bribes the firm will encounter and Jurisdiction A’s new but still-low level of enforcement, assume that A firms reduce their bribery by half. They are now willing pay bribes in 50% of all transactions. Assume further that as a result, the percentage of contracts they will be able to win also drops by half, from 60% of all contracts to 30% of all contracts. Investor substitution occurs, and B firms win the extra 30% of the contracts. Now A firms have 30% of the market and B firms have 70%. Owing to the downside of deterrence’s upside, B firms continue to bribe in 100% of all their transactions, and therefore will bribe on the extra 30% of the contracts they will win. But because A firms were paying bribes on those contracts in Time 1, investor substitution has not resulted in a net increase in bribery in the host country. 83 The ability of companies from Jurisdiction A to absorb a degree of lost profits but remain competitive assumes that the market is not what economists would consider perfectly competitive. If it was, the companies would have no margin to absorb the losses because competitors would have already been selling at the lower cost. But foreign direct investment is not perfectly competitive, in at least two respects. First, often a sort of oligopoly exists where only select companies from select countries are positioned to compete. Second, some companies might have a competitive advantage by virtue of their access to capital, technological, or various forms of government support. Accordingly, this illustration assumes that Jurisdiction A firms are operating at a level of profitability that permits them to absorb limited losses to comply with the statute. 378 OHIO STATE LAW JOURNAL [Vol. 76:2 Rather, A’s low level of enforcement has thus succeeded in two respects. Of the 30% of the contracts that A firms win, they will only pay bribes in 50% of these transactions. For half of this 30%, or 15%, no bribes are being paid; this portion of the host country’s infrastructure sector is now clean. A’s enforcement has thus reduced bribery among its own firms by 50%, and has reduced net bribery levels in the host country by 15%. Table 2 Time Enforcement Level % Market Share for Firms from Jurisdiction A % Bribes That A Firms Pay in Their Transactions Overall Rate of Bribery in Host Country T1 None 60 100 100 T2 Low 30 50 85 Again, overall levels of bribery have gone down from 100% to 85% because A firms have a 30% market share and are not paying bribes on half of the related transactions. This is the outcome that anti-bribery advocates take for granted, and for those who accept the normative premise that federal law should deter overseas bribery, it is the reason to continue enforcement. But now assume a subsequent point in time, called Time 3. The enforcement authorities in Jurisdiction A, perhaps encouraged from the successes of Time 2, have decided to ramp up enforcement through the dedication of new resources. We will call this mid-level enforcement, and it significantly increases the likelihood of detecting violations. In Time 3, the host country issues a new set of RFPs. The other assumptions still hold: the total number of transactions is again fixed, companies from Jurisdictions A and B will again compete, and companies from Jurisdiction B still bribe without fear of punishment. Companies from Jurisdiction A now engage in a new cost-benefit analysis. They conclude that because the risk of detection and therefore penalty is higher, they must pay even fewer bribes than they did in Time 2. Say that mid- level enforcement induces A firms to reduce their bribery percentage from 50% to 25% of all transactions. The mid-level enforcement regime has thus succeeded in reducing bribery among companies subject to its jurisdiction. But consider the impact that investor substitution will now have on the change in overall bribery levels from Time 2 to Time 3. Although A firms won 60% of all contracts when bribing 100% of the time, they can now win only 1/4 of those contracts.84 84 This exercise assumes that the percentage of contracts it can win will drop in precisely the same amount as the percentage of bribes it can pay. In practice, the relationship between these two figures would be more complex. 2015] RESTORATIVE JUSTICE 379 They now have only a 15% market share, down from 30% in Time 2. The 15% market share that A firms have lost since Time 2 will now go to B firms, which continue to bribe 100% of the time. In other words, 15% of the transactions have shifted from reluctant bribe payers to free bribe payers. A firms remain engaged in only 15% of all transactions in the host country’s infrastructure sector, and they will pay bribes in 1/4 of that 15%. Accordingly, A firms are bribe-free in 11% of all transactions. Because all other transactions are paid with bribes, the overall bribery level in the host country is now at 89%. Table 3 Time Enforcement Level % Market Share for Firms from Jurisdiction A % Bribes That A Firms Pay in Their Transactions Overall Rate of Bribery in Host Country T1 None 60 100 100 T2 Low 30 50 85 T3 Mid 15 25 89 From Time 2, overall bribery has increased by 4%. And that increase is entirely due to Jurisdiction A’s increased enforcement effort. Consider a further period in time, Time 4, in which Jurisdiction A has finally resolved to dedicate the enforcement resources necessary to achieve what it deems the optimal rate of bribery among its firms—0%. And suppose it succeeds, such that now A firms pay absolutely no bribes. Further assume that all other conditions remain the same, and the host country issues a new set of RFPs. Jurisdiction A firms can no longer win contracts in this host country’s infrastructure sector. B firms now win 100% of the contracts, engage in 100% of the transactions, and pay bribes 100% of the time. While the rate of bribery among A firms is now 0%, the overall rate of bribery in the host country is 100%. 380 OHIO STATE LAW JOURNAL [Vol. 76:2 Table 4 Time Enforcement Level % Market Share for Firms from Jurisdiction A % Bribes That A Firms Pay in Their Transactions Overall Rate of Bribery in Host Country T1 None 60 100 100 T2 Low 30 50 85 T3 Mid 15 25 89 T4 High 0 0 100 Notice the pattern. At Time 2, its efforts to deter bribery were effective in reducing the overall level of bribery in the host country. Companies from Jurisdiction A indeed lost business as a result of the decision to enforce the bribery prohibition. But in Time 1, companies from Jurisdiction A were bribing as freely as companies from Jurisdiction B, so losing business to companies from Jurisdiction B at Time 2 did not result in an increase in bribery for the host country. Then at Time 3, the second increase in enforcement has reduced bribery only among companies subject to A’s jurisdiction. Those companies are indeed bribing less, but owing to investor substitution, the impact on overall levels of bribery in the host country is a net increase. And we saw at Time 4 that raising penalty risks further can produce a scenario in which the rates of bribery in the host country return to 100%, a level not seen since before the enforcement effort began. In sum, after Time 1, the overall rate of bribery in the host country correlates inversely with Jurisdiction A’s enforcement. Likewise, it correlates inversely with the percentage of bribes that A firms are paying. As Jurisdiction A attempts, and succeeds, in decreasing bribery among its own companies, it increases overall bribery in the developing country. This illustration is of course artificially simplified. In reality, a number of additional variables would influence the net impact of increased enforcement: the number of transactions, the number of agencies or persons soliciting bribes, changes in the level of penalty, changes in the effectiveness of the reluctant bribe payer’s tools for avoiding bribes, and perhaps most importantly, a decrease in the percentage of transactions in developing countries that require bribes. Expanding this model to include each of these variables is a project for another day. But this thought experiment nevertheless illustrates limitations inherent in the effort to deter extraterritorial white-collar crime, given current global economic and legal conditions. And it raises two distinct utilitarian problems. 2015] RESTORATIVE JUSTICE 381 C. Am I My Brother’s Utility Maximizer? Though the enforcement authority’s aim is to maximize utility, extraterritorial white-collar deterrence will tend to produce two distinct forms of disutility. The first is, quite simply, that it often will not work. As explained above, overseas business environments will often produce an increase, rather than a decrease, in the conduct we seek to deter. This will be true as long as capital- exporting jurisdictions vary in their enactment and enforcement of criminal prohibitions. The answer, one might think, is to tinker with the variables available to the enforcement authority: enforcement expenditures, fine levels, the length of imprisonment, and the standard for imposing liability. The problem, however, is that once into Time 2, decreasing the cost of the penalty through any of these four variables will necessarily decrease the disincentive to engage in the act: reducing enforcement expenditures, fines, or prison terms, or raising the standard for imposing liability, will decrease the costs of crime and increase its frequency. In Times 2 and 3, the enforcement authority is trapped. By not increasing the risk of detection, it tolerates a measure of criminality among persons subject to its jurisdiction. But by raising the risk of detection, it produces the concurrent decrease in criminality among its companies, and an increase in that same behavior in the host country among all actors. These are the Scylla and Charybdis of extraterritorial white-collar criminal enforcement. The enforcement authority must choose between the harm of knowingly tolerating preventable criminality among its own companies, and knowingly increasing levels of criminality in vulnerable developing countries. It cannot avoid both. The enforcement authority thus seeks the golden mean or, if one prefers, the Goldilocks theory, of enforcement: to enforce its prohibition only to the point that it deters overall levels of bribery, and not further. The law and economics enforcement authority is trapped in this dilemma, unable to achieve what it considers the optimal level of criminality among its own actors without raising levels of the same conduct in the host country. But even if the first problem were resolved, and overseas deterrence efforts were to effectively reduce crime, the law and economics enforcement authority would be left with a second problem. Consider again the assumption behind the economic theory of public enforcement: the taxpayer is the potential victim, and she pays taxes to prevent her victimization. That works in domestic enforcement, where all potential victims are taxpayers and all taxpayers are potential victims. But what if the victims are not taxpayers, and the taxpayers are not victims? What if the victims lie beyond the jurisdiction that is enforcing the criminal prohibition, and are therefore not paying the taxes that fund enforcement? Put another way, am I my brother’s utility maximizer? Again using the anti-bribery example, we devote substantial public resources to protecting those overseas victims through the DOJ, SEC, FBI, 382 OHIO STATE LAW JOURNAL [Vol. 76:2 offices in Commerce and State, and the federal judiciary.85 And various economic benefits might very well accrue to U.S. taxpayers, including the improvement of overseas markets and the resulting potential for economic and political alliances. But stakeholders to anti-bribery enforcement generally agree that the principal victims of extraterritorial bribery are the citizens of the overseas governments. And they’re not paying for enforcement. That is, Congress enacted a statute in which U.S. taxpayers would pay to protect non- taxpayers from the harms of bribery. To the utility-maximizing taxpayer typically associated with law and economics, this is the second disutility of deterrence. It is inescapable, and reflects the limitations of the deterrence paradigm in explaining not just how to deter overseas criminality, but why we should even try. To the extent that the extraterritorial statute is designed both to deter criminality among the jurisdiction’s own actors and to reduce overall levels of crime, the traditional mechanisms of deterrence may not be the most effective tools available. That is, the means typically employed by deterrence advocates may not be best suited to achieve deterrence’s goals. Rather, the achievement of deterrence goals may require using non-deterrence, or extra-deterrence, means. As the above illustration shows, extraterritorial crime reduction requires reaching two sets of actors who lie beyond the reach of the enforcement authority. The first is the host country: to the extent that a capital-importing country can enforce its own prohibitions (on bribery, for instance) no investor substitution can occur. All companies investing in that country would (in theory) be subject to the same risks and costs, and would engage in crime at roughly similar levels. If the host country sought to reduce a given form of conduct to zero, it could do so, and differences among the capital-exporting jurisdictions would become irrelevant. But a developing country, almost by definition, is ill-equipped to do so; its state is not yet sufficiently resourced to deter the conduct of powerful foreign firms. This is thus a long-term project. Accordingly, the capital-exporting jurisdiction seeking to deter destructive conduct in foreign countries can also seek to influence the behavior of competing capital-exporting jurisdictions that do not enforce comparable prohibitions (the B Jurisdictions). The problem, of course, is that the enforcing jurisdictions (the A Jurisdictions) generally have no authority over either the capital-importing or capital-exporting governments. But notice the relatively modest—and therefore perhaps not intractable— problem. At Time 3, when the overall rates of bribery in this model increased for the first time, the difference was relatively slight: a mere 4%. At Time 4, when the enforcing jurisdiction resolved to achieve the optimal level of 85 See U.S. DEP’T OF JUSTICE & U.S. SEC. & EXCH. COMM’N, A RESOURCE GUIDE TO THE U.S. FOREIGN CORRUPT PRACTICES ACT 4–7 (2012) [hereinafter RESOURCE GUIDE], available at http://www.justice.gov/criminal/fraud/fcpa/guide.pdf, archived at http://perma.cc/V86D-N7QQ. 2015] RESTORATIVE JUSTICE 383 bribery among its companies (namely, none) the overall level increased by another 11%. These numbers are not staggering. But when the policy aim is crime reduction in the host country, any crime increase that results directly from our enforcement efforts merits some attention. Admittedly, criminal enforcement would unleash other forces that would chip away at this increase, particularly where the enforcement actions are publicized. Civil society can agitate for reforms. Other states can wield the levers of international diplomacy. International organizations can pressure non-enforcing jurisdictions through review mechanisms. These forces are significant, and this analysis does not mean to dismiss them. But acknowledging a perverse enforcement outcome, and merely hoping that other entities or policy initiatives will reverse it, is hardly satisfactory. This Article aims to identify an approach to criminal enforcement that would itself achieve the stated aim of reducing crime. The next section does so. IV. RESTORATIVE JUSTICE FOR CORPORATIONS AND THEIR VICTIMS As the above model illustrates, the deterrence approach suffers from two distinct but closely related limitations that in combination prove fatal. First, it cannot reach competitor firms from jurisdictions that do not enforce the extraterritorial prohibition. Extraterritorial deterrence fails because not all potential violators are subject to the enforcing country’s jurisdiction. But this is not the only way to approach crime reduction in a foreign jurisdiction. The other would be to adopt host-country reforms that could reduce the environmental inducements (such as bribe solicitation or extortion) that give rise to crime. We might use criminal enforcement to identify the causes of crime and to identify or fund initiatives to address those causes. But the law- and-economics approach to deterrence undertakes no such thing; it does not even try to reach the host country governments. It merely punishes the wrongdoer, with the aim of specifically deterring the wrongdoer’s recidivism and generally deterring others through fear of punishment. The solution, then, lies in an alternative theory of criminal punishment that aspires to more than specific and general deterrence. Absent an extraordinarily broad theory of jurisdiction for extraterritorial crime no theory of punishment can extend deterrence’s sphere influence to reach foreign competitors. What extraterritorial criminal enforcement needs, then, is a foundational theory of punishment that looks beyond the potential violators within its jurisdiction and engages with the broader social and legal environment in which the crime occurred. Criminal theory provides three basic possibilities: deterrence, retribution, and rehabilitation/restoration.86 The above critique of extraterritorial enforcement will typically first evoke a retributivist response: we punish these corporate criminals to ensure that they 86 MIETHE & LU, supra note 21, at 15. 384 OHIO STATE LAW JOURNAL [Vol. 76:2 get what they deserve, not because of some kind of cost-benefit analysis on social impact.87 By this argument U.S. law does not and should not aim to actually reduce crime in overseas countries; we enforce to express our disapproval of the criminal act, and the collateral consequences are quite beside the point. Applied to extraterritorial white-collar enforcement, the retributivist position is completely coherent. And absent a contrary policy commitment, retribution would provide a sufficient justification for extraterritorial enforcement efforts. But this Article is based on the premise that in certain areas of law—anti-bribery being the best example—our statutes are in fact based on the expectation that our enforcement efforts would reduce crime in the countries in which we do business. What is needed, then, is a theory of criminal justice that seeks to reduce crime but looks beyond the potential offender’s cost-benefit analysis. That theory is restorative justice. Though typically associated with traditional crimes committed by natural persons, Part IV will argue that restorative justice can, and should, apply to extraterritorial corporate crime. Part IV.A will describe the restorative justice approach and show that it is now in practice in federal white-collar environmental enforcement in the form of supplemental sentences. Part IV.B will explain how the U.S. Constitution provides the contours of this sentencing practice: a constitutional tension between the executive and legislative functions ultimately produced a series of guidelines for supplemental sentences that are readily transferable to extraterritorial white-collar enforcement. Part IV.C will then show that supplemental sentences are likewise already authorized, and indeed encouraged, under existing federal sentencing law. Finally, Part IV.D will describe the unexpectedly simple solution to the problem that this Article has taken such pains to describe: the transference of existing domestic white-collar enforcement procedures to extraterritorial enforcement. A. The Corporate Criminal as Social Healer A body of scholarship has long argued for moving away from the traditional adversarial model of legal practice and toward an understanding of the lawyer as a “peacemaker.” By this account, the lawyer’s aim in practice is to prevent future conflict by understanding and improving social interactions between offender, victim, and community.88 Lawyering is thus recast as a “healing profession,” taking a “restorative” approach to the practice of law.89 87 Id. at 16; see PHILIP BEAN, PUNISHMENT: A PHILOSOPHICAL AND CRIMINOLOGICAL INQUIRY 13 (1981); Joel Feinberg, The Expressive Function of Punishment, in PHILOSOPHICAL PERSPECTIVES ON PUNISHMENT 25, 30 (Gertrude Ezorsky ed., 1972). 88 Forrest S. Mosten, Lawyer as Peacemaker: Building a Successful Law Practice Without Ever Going to Court, 43 FAM. L.Q. 489, 489 (2009). 89 Susan Daicoff, Law as a Healing Profession: The “Comprehensive Law Movement,” 6 PEPP. DISP. RESOL. L.J. 1, 1 (2006). 2015] RESTORATIVE JUSTICE 385 Suffice it to say that this literature is not typically associated with multinational corporate practice. But might it be? Can multinational corporations, who have committed crimes, heal social wounds? Can corporate defense counsel, and federal prosecutors, be peacemakers? This section posits that the answer is yes. But it is not a mere potentiality. I argue that this is already happening, in federal white-collar criminal enforcement, and that those practices can extend—indeed, should extend—to extraterritorial white-collar crimes. Restorative justice (RJ) emerged in the 1970s in response to widespread perceptions that the criminal justice system “neither effectively deterred crime nor successfully rehabilitated offenders.”90 RJ differs from deterrence in focusing on more than just the defendant and its cost-benefit analysis. Rather than deterrence’s exclusive focus on the defendant, RJ focuses on three distinct “stakeholders” to crime: the victim(s), the offender(s), and the affected communities.91 It involves all three stakeholders in the sentencing, and is based on the fundamental principle that criminal behavior not only violates the law, but “also injures victims and the community.”92 Core assumptions of RJ include: the response to crime should repair the harm to the victim as much as possible; offenders should recognize the impact of the harm on the victim and the community; victims should have an opportunity to express their needs and participate in the determining the best way to make reparation; and the community has a responsibility to contribute to this process.93 It aims not just to punish and prevent crime, but to actually restore the relationship between the offender, the victim, and the social environment. The victim is restored, the offender recognizes his wrong, and the fear of crime is diminished for the community.94 Accordingly, where deterrence is one-dimensional in its focus on the offender, RJ is three-dimensional: in addition to the offender, it focuses on the victim as well as the social environment that gave rise to the offense. RJ has been defined as a form of punishment that is primarily oriented towards doing justice by restoring the harm that has been caused by a crime.95 It focuses on repairing or compensating the victim, in order to restore the public’s confidence that the crime has been condemned, disapproving of the norm 90 Carrie Menkel-Meadow, Restorative Justice: What Is It and Does It Work?, 3 ANN. REV. L. & SOC. SCI. 161, 163 (2007). 91 BRAITHWAITE, supra note 7, at 11. 92 UNITED NATIONS OFFICE ON DRUGS & CRIME, supra note 7, at 6. 93 Id. at 8. 94 Andrew von Hirsch et al., Specifying Aims and Limits for Restorative Justice: A ‘Making Amends’ Model?, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING OR RECONCILABLE PARADIGMS? 21, 22 (Andrew von Hirsch et al. eds., 2003). 95 See Gordon Bazemore & Lode Walgrave, Restorative Juvenile Justice: In Search of Fundamentals and an Outline for Systemic Reform, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 45, 48 (Gordon Bazemore & Lode Walgrave eds., 1999). 386 OHIO STATE LAW JOURNAL [Vol. 76:2 transgression, and reassurance of the norm and norm enforcement to the public, victims, and offenders.96 This focus on the victim might be called the second dimension of punishment. But RJ is not merely a set of outcomes; so too is it a process by which the victim, offender, and affected community members “participate . . . actively in the resolution of matters arising from the crime.”97 This involvement of the community introduces the third dimension. Indeed, another scholar has defined RJ as “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”98 Through the process, both the victim and the offender come to understand the factors that gave rise to the damaging behavior.99 “Others who had a role to play in the offence or the circumstances that led to it are also encouraged to assume responsibility for their part . . . .”100 The process “encourages frank discussion of the background of the offence in a spirit of explanation rather than making excuses.”101 Ultimately, the sentencing process should be helpful in “identifying underlying causes of crime and developing crime prevention strategies.”102 However, in focusing on the victim and the community, RJ need not call attention away from, or otherwise “go light” on, the offender. Much scholarship has addressed the question of whether punishment of the offender is indeed consistent with restorative goals. Early RJ thought was characterized by a dichotomy. Advocates of RJ argued that in seeking restoration we must eschew retribution and punishment, while advocates of punishment argued punishment must always be the primary aim of the state’s response to crime, and that restoration must be a secondary goal that can be pursued only insofar as it does not compromise retribution’s core values of justice, proportionality, and fairness.103 But others have demonstrated this dichotomy to be false: that retribution remains an important component of RJ, and that full restoration actually requires retribution and punishment.104 Indeed, insofar as restoration still aims to give victims and community members reassurance both that justice has been served, and that future harms have been prevented, 96 See Lode Walgrave, Imposing Restoration Instead of Inflicting Pain: Reflections on the Judicial Reaction to Crime, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING OR RECONCILABLE PARADIGMS?, supra note 94, at 61, 65. 97 E.S.C. Res. 2002/12, U.N. Doc. E/2000/INF/2/Add.2, at I.2 (July 24, 2002). 98 BRAITHWAITE, supra note 7, at 11. 99 UNITED NATIONS OFFICE ON DRUGS & CRIME, supra note 7, at 9. 100 Id. at 11. 101 Id. 102 Id. at 10. 103 Antony Duff, Restoration and Retribution, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING OR RECONCILABLE PARADIGMS?, supra note 94, at 43, 43. 104 Id. 2015] RESTORATIVE JUSTICE 387 punishment is essential. RJ programs “complement rather than replace the existing criminal justice system.”105 But the punishment is different: it is not merely symbolic, nor is it aimed merely at deterrence, whether specific or general. Rather, the offender’s restoration is enhanced by his voluntary participation and cooperation in the process. His voluntary agreement to repair or compensate “expresses his understanding of the wrongs committed and harms caused, as well as his willingness to make amends.”106 A restorative outcome is, by definition, an agreement.107 RJ thus provides the offender “with an opportunity to make meaningful reparation.”108 Punishment is a means, not an end; restoration is the end.109 As RJ evolved in practice, several core practices emerged. Both the offender(s) and the victim(s) participate directly and personally in a process of speaking about their role in the crime and listening to the other’s narrative. Each talks about what occurred, why it occurred, and the harm it caused. The offender acknowledges his conduct and its wrongfulness, and apologizes to the victim(s). The victim(s) draw into a deeper understanding of the causes, sometimes systemic, of the crime, and can sometimes work toward an attitude of forgiveness (but not forgetfulness) of the act. All persons contribute to a determination of the appropriate restitution. Among the goals of restitution is the reintegration of the wrongdoer into the larger community. Ideally, the wrongdoer and the victim achieve a degree of reconciliation and a shared understanding of appropriate social norms. Both then try to adopt a future- oriented perspective that focuses on the rebuilding of social relationships.110 These practices expose deeper truths about state-sanctioned criminality, allow for deeper understandings among the perpetrators and the victims, and can allow a society to “begin anew with transformative understandings of both its past and its future.”111 The suggestion that this theory of punishment could apply to any meaningful extent to multinational corporate crime will give rise to three objections. The first is that RJ is designed for traditional crimes involving natural-person offenders and discrete victims, not large-scale institutional crimes. And the premise is to a large extent true: RJ tends to be most widely practiced and discussed in relation to traditional, discrete crimes involving smaller communities and utilizing alternative sentencing procedures such as victim-offender mediation, community and family group conferencing, circle sentencing, and peacemaking circles.112 105 UNITED NATIONS OFFICE ON DRUGS & CRIME, supra note 7, at 13. 106 Walgrave, supra note 96, at 62. 107 UNITED NATIONS OFFICE ON DRUGS & CRIME, supra note 7, at 7. 108 Id. at 11. 109 Walgrave, supra note 96, at 64. 110 Menkel-Meadow, supra note 90, at 164. 111 Id. at 169. 112 UNITED NATIONS OFFICE ON DRUGS & CRIME, supra note 7, at 14–15. 388 OHIO STATE LAW JOURNAL [Vol. 76:2 But RJ has since expanded, and arguably its most-widely recognized form today is indeed a large-scale institutional crime with dispersed victims: the Truth and Reconciliation Commission. In the 1990s restorative justice practices moved from individual acts of wrongdoing to systematic wrongdoing by state actors, such as civil wars and illegitimate regimes such as apartheid.113 Since then, more than twenty-five developing countries have instituted variations of restorative justice principles to heal from large-scale crimes in which the state participated. If RJ can apply to crimes committed on this scale, by institutional actors against broad communities, it can no less easily apply to corporate crimes. Skeptics may counter with two additional points, both of which are refuted by the same body of evidence. First, a difference allegedly remains between the state crimes that truth and reconciliation commissions address, and white- collar crimes. While the former had concededly given rise to RJ approaches, applying RJ to multinational corporate crime may be unworkable, and at any rate is normatively unpalatable.114 Second, skeptics will argue that even if RJ for white-collar crime is workable in theory, the enforcement agencies will never embrace such an outlandish and academic proposition.115 Neither is true. For twenty-five years, the U.S. Department of Justice has applied alternative sentencing practices to white-collar defendants. In conjunction with the U.S. Environmental Protection Agency, the DOJ has developed a robust and well-defined practice of what is called the “supplemental sentence.” The civil-side version of these sentences is perhaps better known, as it has a catchier moniker: the Supplemental Environmental Project, or SEP. But an almost identical practice exists in criminal enforcement, and this practice resounds in RJ themes. In recent years supplemental projects have increased in popularity and visibility. The DOJ has provided several reasons why this is so, all of which readily apply to extraterritorial white-collar crime. First, prosecutors “want to rectify the wrongs” caused by violations, and feel that more conventional 113 Menkel-Meadow, supra note 90, at 169. 114 Some scholars have discussed, however tentatively, the possibility of applying RJ to white-collar crime. See BRAITHWAITE, supra note 7, at 62–66. One of the founders of the restorative justice movement, John Braithwaite of Australia National University, has argued for its applicability to corporate crime. Id. He finds that when state regulators participate in negotiations with corporate managers or industry leaders, the resulting enforcement actions are more flexible and realistic, and the punishment is generally much more effective than traditional deterrence measures in promoting corporate compliance. Id.; see Marianne Löschnig-Gspandl, Corporations, Crime and Restorative Justice, in RESTORATIVE JUSTICE IN CONTEXT: INTERNATIONAL PRACTICE AND DIRECTIONS 145, 145 (Elmar G.M. Weitekamp & Hans-Jürgen Kerner eds., 2003). 115 The U.S. Department of Justice has, in other contexts, explicitly embraced RJ in the context of other areas of crime. See U.S. DEP’T OF JUSTICE, IDENTIFYING CULTURALLY RESPONSIVE VICTIM-CENTERED RESTORATIVE JUSTICE STRATEGIES (2012), available at http://ojp.gov/ovc/grants/pdftxt/FY2012_Identifying_Culturally_Responsive_Victim.pdf, archived at http://perma.cc/GR25-24CB. 2015] RESTORATIVE JUSTICE 389 criminal sentences fail to do so. Second, corporate defendants frequently wish to perform community service and actually prefer it to simply paying a fine, even where the service may prove more expensive. Third, judges often feel that they are “doing more good for the community” by using the settlement funds for community service instead of depositing those funds in the U.S. treasury.116 Note how naturally these three policy goals would apply to many forms of white-collar crime; they are in no way unique to environmental violations. Indeed, they are especially applicable to extraterritorial bribery, where multiple stakeholders have for years criticized modern enforcement for its failure to compensate the victims and otherwise improve the conditions in the communities where the bribes occurred.117 As is always the case with extraterritorial enforcement, the crime occurred overseas, but the fine is deposited in the U.S. treasury. The real victims—those impacted directly by the crime—obviously receive scant benefit from the deposit.118 Notice also the obvious RJ themes in this analysis. The prosecutors wish to remedy the harm and not merely punish the defendant. Corporate defendants often express a preference for community service; though they may well be motivated by concerns for reputation and, by extension, long-term profits, they nonetheless are seeking to restore their relationship to the community to its pre-crime state. And the judges also see greater community benefits in the supplemental sentences; more to the point, they believe that these benefits are a legitimate and appropriate aim of criminal sentencing. Several recent examples of supplemental sentences illustrate this. In 2009, a gas company paid a total of $18 million for illegally storing mercury. The sentence included a $6 million criminal fine and $12 million in payments to various local community initiatives to support environmental remediation and 116 Kris Dighe, Organizational Community Service in Environmental Crimes Cases, U.S. ATT’Y BULL., July 2012, at 100, 100, available at http://www.justice.gov /usao/eousa/foia_reading_room/usab6004.pdf, archived at http://perma.cc/TN3Y-3L9G. 117 See Letter from Alexander W. Sierck to Robert S. Khuzami, Dir., Enforcement Div., U.S. Sec. & Exch. Comm’n (Apr. 25, 2012), available at http://www.fcpablog.com /blog/2012/3/16/african-ngo-asks-for-distribution-of-fcpa-recoveries.html, archived at http://perma.cc/2RVR-E7XK; see also Matthew C. Turk, A Political Economy Approach to Reforming the Foreign Corrupt Practices Act, 33 Nw. J. INT’L L. & BUS. 325, 336‒40 (2013). 118 Moreover, FCPA enforcement has, perhaps unwittingly, supplied one high-profile example of a quasi-restorative approach to criminal enforcement. In settling the case of James Giffen, the United States arranged with officials in Kazakhstan and Switzerland to release the $80 million in alleged bribes from their Swiss accounts and establish a trust fund to be managed by a Kazakhstani NGO. David Glovin, Oil Dealer Giffen Avoids Prison in Onetime Bribe Case, BLOOMBERG L., Nov. 19, 2010, at 3. This fund was to be used to pay for programs for poor children and improve transparency in the Kazakh oil industry. Id. 390 OHIO STATE LAW JOURNAL [Vol. 76:2 education projects and children’s health initiatives.119 In 2010, a ship management firm paid a total of $10 million to settle criminal violations of the Oil Pollution Act for causing and covering up an oil spill after one of its ships hit the San Francisco Bay Bridge. Pursuant to the plea agreement, $2 million of the total $10 million will fund marine environmental projects in San Francisco Bay.120 In 2012, a producer of pesticides agreed to pay a criminal fine and perform community service to settle eleven criminal violations of the Federal Insecticide, Fungicide and Rodenticide Act in relation to applying insecticides to its wild bird food products. In addition to the $4 million criminal fine, the defendant contributed $500,000 to various organizations that protect bird habitat in the immediate vicinity of the violations to fund conservation, research, and education.121 But 2013 proved to be the true zenith of community service sentences for environmental white-collar criminals, producing two especially high-profile cases. The first was Wal-Mart, which plead guilty to six criminal counts of violating the Clean Water Act for illegally handling and disposing of hazardous materials at its retail stores across the United States. Wal-Mart was sentenced to pay a $40 million criminal fine, and an additional $20 million that will fund various community service projects, including opening a $6 million Retail Compliance Assistance Center that will help retail stores across the nation learn how to properly handle hazardous waste.122 However, the largest and most significant sentence came in the BP Gulf of Mexico settlement. Not only was it the largest community service sentence in environmental enforcement history, but BP also paid the largest criminal fine of any kind in all of U.S. history: $4 billion, over three times larger than the next-largest criminal resolution ever paid.123 The resolution is structured so 119 Press Release, U.S. Dep’t of Justice, Southern Union Company Is Penalized $18 Million for Illegally Storing Mercury at a Rhode Island Site 1 (Oct. 2, 2009), available at http://www.justice.gov/opa/pr/2009/October/09-enrd-1070.html, archived at http://perma.cc/XT9N-AREE. 120 Press Release, U.S. Dep’t of Justice, Shipping Firm Sentenced to Pay $10 Million for Causing Cosco Busan Oil Spill and Coverup 1 (Feb. 19, 2010), available at http://www.justice.gov/opa/pr/2010/February/10-enrd-168.html, archived at http://perma.cc/435U-VDXU. 121 Press Release, U.S. Dep’t of Justice, Scotts Miracle-Gro Will Pay $12.5 Million in Criminal Fines and Civil Penalties for Violations of Criminal Pesticide Laws 2 (Sept. 7, 2012), available at http://www.justice.gov/opa/pr/2012/September/12-enrd-1088.html, archived at http://perma.cc/Y7KT-88AZ. Scotts also paid civil penalties and performed additional service projects related to its civil liability. See id. 122 Press Release, U.S. Dep’t of Justice, Wal-Mart Pleads Guilty to Federal Environmental Crimes, Admits Civil Violations and Will Pay More than $81 Million 2 (May 28, 2013), available at http://www.justice.gov/opa/pr/2013/May/13-enrd-611.html, archived at http://perma.cc/NE36-DNXA. Wal-Mart also pled guilty to violating the Federal Insecticide, Fungicide and Rodenticide Act by failing to properly handle pesticides. Id. at 1. 123 The previous largest criminal resolution was $1.3 billion, paid by Pfizer in 2009 for off-label pharmaceutical marketing. See Reasons for Accepting Plea Agreement at 11 n.15, 2015] RESTORATIVE JUSTICE 391 that more than half of this recovery will fund projects to compensate those communities and ecosystems most directly harmed by the spill. As the government’s own press release explained: [A]pproximately $2.4 billion of the $4.0 billion criminal recovery is dedicated to acquiring, restoring, preserving and conserving—in consultation with appropriate state and other resource managers—the marine and coastal environments, ecosystems and bird and wildlife habitat in the Gulf of Mexico and bordering states harmed by the Deepwater Horizon oil spill. This portion of the criminal recovery will also be directed to significant barrier island restoration and/or river diversion off the coast of Louisiana to further benefit and improve coastal wetlands affected by the oil spill. An additional $350 million will be used to fund improved oil spill prevention and response efforts in the Gulf through research, development, education and training.124 The money is going primarily to the National Fish and Wildlife Foundation, an independent, non-profit conservation group.125 An additional $350 million will go to the National Academy of Sciences for oil spill prevention, education, research, and training.126 These organizations are required under the court order to spend the monies on projects specifically related to the oil spill to the extent possible.127 These penalties are in addition to the required monitors, audits, training programs, and other internal reforms. Notice again the RJ themes in these environmental examples. The sentences directly repair the harm that resulted from the violation, thus restoring the victims. Through research and education, the broader causes of the harm are studied and addressed; the sentences work toward prevention not merely by imposing a fine that would deter other prospective violators, but by changing the environment that gave rise to the violation. To identify the most effective measures, the defendant consults members of the local community with particular expertise. Commentators have consistently noted the RJ themes of these sentences, and the ways in which they move substantially beyond deterrence-based approaches to more effectively remedy and prevent harms. The ABA United States v. BP Exploration & Prod., Inc., No. 12-292 (E.D. La. Jan. 20. 2013), available at http://www.justice.gov/criminal/vns/docs/2013/01/2013-01-30-bp-exploration- reasons-for-accepting-plea-agreement.pdf, archived at http://perma.cc/T2L7-SA8X. 124 See Press Release, U.S. Dep’t of Justice, BP Exploration and Production Inc. Agrees to Plead Guilty to Felony Manslaughter, Environmental Crimes and Obstruction of Congress Surrounding Deepwater Horizon Incident (Nov. 15, 2012), available at http://www.justice.gov/opa/pr/2012/November/12-ag-1369.html, archived at http://perma.cc/C4T4-B6MM. 125 Guilty Plea Agreement Exhibit B at 16, United States v. BP Exploration & Prod., Inc., No. 12-292 (E.D. La. Nov. 2012), available at http://www.justice.gov/iso/opa /resources/43320121115143613990027.pdf, archived at http://perma.cc/TQ8G-73SA. 126 Id. 127 See Order at 16–19, United States v. BP Exploration & Prod., Inc., No. 12-292 (E.D. La. Jan. 29, 2013), available at http://www.justice.gov/criminal/vns/docs/2013 /01/2013-01-29-bp-exploration-order.pdf, archived at http://perma.cc/D5H9-EBCB. 392 OHIO STATE LAW JOURNAL [Vol. 76:2 explained that these sentences are designed to “improve or repair relationships among all stakeholders (i.e., impacted communities, facilities, and government, at all levels) following the environmental violation.”128 More to the point, Michael L. Rustad, Thomas H. Koenig, and Erica R. Ferreira provide an extensive case-study analysis of the RJ themes of supplemental sentences, observing that they “creatively combine[] both deterrence-based punishment through . . . penalties and restorative justice principles in the form of mitigation projects . . . .”129 Notably, those authors suggest that “[o]ther regulatory agencies should consider adopting restorative justice insights in designing remedies” for other forms of white-collar crime.130 This Article will shortly provide an outline for doing that very thing. But further context is necessary to understanding how and why these sentences are authorized under existing federal law. The following section explains how constitutional pressures have shaped the formation of the guidelines that would now apply to any such sentences. B. Authorization in the U.S. Constitution Congress and various federal agencies have argued for years about whether the U.S. Constitution permits an enforcement agency to unilaterally divert de facto criminal penalties to community service projects. Supplemental sentences walk a fine line between the Executive’s enforcement authority131 128 NICHOLAS TARG & DAVID JUNG, Preface to PUB. LAW RESEARCH INST., SUPPLEMENTAL ENVIRONMENTAL PROJECTS: A FIFTY STATE SURVEY WITH MODEL PRACTICES 3 (2007), available at http://gov.uchastings.edu/public-law/docs/plri/ABA HastingsSEPreport.pdf, archived at http://perma.cc/HT5H-X9NL; see Dika Kuoh, Leveraging Enforcement to Enhance Community: The Use of Supplemental Environmental Projects to Promote Environmental Justice 3 (May 2013) (unpublished Masters thesis, Duke University), available at http://dukespace.lib.duke.edu/dspace/handle/10161/6849, archived at http://perma.cc/5H9Y-MF95. 129 Michael L. Rustad et al., Restorative Justice to Supplement Deterrence-Based Punishment: An Empirical Study and Theoretical Reconceptualization of the EPA’s Power Plant Enforcement Initiative, 2000‒2011, 65 OKLA. L. REV. 427, 428 (2013). 130 Id. 131 See U.S. CONST. art. I, § 9, cl. 7. In Federalist 58, Madison wrote that “they [(Congress)], in a word, hold the purse . . . . This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” THE FEDERALIST NO. 58, at 284‒85 (James Madison) (Terrence Ball ed., 2003). So too did the Supreme Court hold that “no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (citing Reeside v. Walker, 52 U.S. 272, 291 (1851)); see Robert C. Byrd, The Control of the Purse and the Line Item Veto Act, 35 HARV. J. ON LEGIS. 297, 297 (1998); Richard D. Rosen, Funding “Non-Traditional” Military Operations: The Alluring Myth of 2015] RESTORATIVE JUSTICE 393 and the congressional power of the purse.132 Seeking to protect its power from executive encroachment, Congress enacted the Miscellaneous Receipts Act (MRA),133 requiring that any money received “for the Government” from any source be deposited into the U.S. treasury.134 The MRA is “intended to preserve Congressional prerogatives to appropriate funds as provided for in the U.S. Constitution.”135 Sentencing policy must therefore allow the Executive Branch to exercise its settlement authority without encroaching upon Congress’s appropriation power. In the 1980s and early 1990s, various enforcement agencies—including the Commodity Futures Trading Commission,136 the Nuclear Regulatory a Presidential Power of the Purse, 155 MIL. L. REV. 1, 1 (1998); Kate Stith, Congress’ Power of the Purse, 97 YALE L.J. 1343, 1349 (1988); see also Charles Tiefer, Controlling Federal Agencies by Claims on Their Appropriations? The Takings Bill and the Power of the Purse, 13 YALE J. ON REG. 501, 502 (1996). 132 The Judiciary Act of 1789 vests plenary authority over the legal affairs of the United States in the Attorney General, and Congress created the Attorney General’s statutory authority to conduct litigation on behalf of the United States when establishing the Department of Justice in 1870. Todd David Peterson, Protecting the Appropriations Power: Why Congress Should Care About Settlements at the Department of Justice, 2009 BYU L. REV. 327, 342‒43. 133 Miscellaneous Receipts Act, Pub. L. No. 97-258, 96 Stat. 948 (1982) (codified as amended at 31 U.S.C. § 3302 (2012)). 134 U.S. DEP’T OF JUSTICE, SENTENCING GUIDANCE IN ENVIRONMENTAL PROSECUTIONS, INCLUDING THE USE OF SUPPLEMENTAL SENTENCING MEASURES, DEVELOPED BY THE U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND NATURAL RESOURCES DIVISION, ENVIRONMENTAL CRIMES SECTION IN CONSULTATION WITH THE ENVIRONMENTAL CRIMES POLICY COMMITTEE B-11 (2000) [hereinafter ENVIRONMENTAL SENTENCING GUIDANCE]. 135 Memorandum from Walker B. Smith, Dir., Office of Regulatory Enforcement, U.S. Envtl. Prot. Agency, to Reg’l Counsel, Reg’l Enforcement Div. Dirs., & Reg’l Media Div. Dirs. 2 (Oct. 31, 2002) [hereinafter Nexus Memo], available at http://www2.epa.gov /sites/production/files/documents/sepnexus-mem.pdf, archived at http://perma.cc/6D8M- Z2VR. 136 In 1983, the Commodity Futures Trading Commission (CFTC) sought an opinion from the Government Accounting Office concerning its proposed policy of accepting a defendant’s promise to make a donation to an educational institution as all or part of a settlement agreement. See Commodity Futures Trading Comm’n, B-210210, 1983 WL 197623 (Comp. Gen. Sept. 14, 1983). The CFTC specifically wanted to know if achieving its educational goals through the proposed plan would violate the MRA. See id. In striking down the proposal, the Comptroller General held that the donations would effectively be penalties, which are subject to deposit into the Treasury under the MRA, and that the CFTC’s means of enforcement are “specifically defined” by Congress and that settlement authority should be “limited to statutorily authorized prosecutorial objectives: correction or termination of a condition or practice, punishment, and deterrence.” Id. The Comptroller General further took issue with the fact that a charged party would donate funds to “an educational institution that has no relationship to the violation and that has suffered no injury from the violation.” Id. In concluding that the CFTC must collect those penalties and deposit them into the Treasury in compliance with the MRA, the Comptroller General added, “[t]he Commission may not circumvent the receipt of a penalty to accomplish a separate objective.” Id. 394 OHIO STATE LAW JOURNAL [Vol. 76:2 Commission,137 and ultimately the Environmental Protection Agency138— claimed the authority to use a portion of civil settlements to fund community service projects, with repeated pushback from the Comptroller General. Then in 1993, the Comptroller General finally acknowledged that the U.S. Constitution and the MRA may indeed authorize the funding of such projects under certain, carefully prescribed conditions.139 It explained that the Government’s discretionary authority to ‘compromise, or remit, with or without conditions,’ civil penalties . . . empowers it to adjust penalties to reflect the special circumstances of the violation or concessions exacted from the violator, but does not extend to remedies unrelated to the correction of the violation in question.140 This “adjustment” of penalties to reflect the violator’s “concessions”— provided those concessions are “related” to the violation—marked the birth of the supplemental sentence. The Comptroller General essentially conceded that such projects could actually fall within the Executive’s legitimate enforcement 137 U.S. Nuclear Regulatory Comm’n, 70 Comp. Gen. 17 (1990) (regarding the Nuclear Regulatory Commission’s authority to mitigate civil penalties in exchange for contributions to nuclear safety research projects at universities and other nonprofit institutions). Under the Atomic Energy Act, the NRC is authorized to impose civil monetary penalties for violations of licensing requirements and to compromise, mitigate, or remit those penalties as well. See 42 U.S.C. § 2282(a) (2012). The Comptroller General applied a similar line of reasoning as in Commodity Futures Trading Comm’n, B-210210, 1983 WL 197623 (Comp. Gen. Sept. 14, 1983), in determining that the proposed alternative was not within the Commission’s congressionally delegated powers. U.S. Nuclear Regulatory Comm’n, 70 Comp. Gen. 17 (1990). The Commission’s discretion to impose monetary penalties, “like CFTC’s prosecutorial discretion, does not empower the NRC to impose punishments unrelated to prosecutorial objectives.” Id. The Comptroller General elaborated, “[u]nder NRC’s proposal, a violator would contribute funds to an institution that, in all likelihood, has no relationship to the violations and has suffered no injury from the violation.” Id. The Comptroller General again maintained that allowing an agency to impose punishments unrelated to prosecutorial objectives would allow that agency to circumvent the MRA. Id. This opinion also added that the proposal would violate the general rule against augmentation of appropriation. Id. 138 U.S. Nuclear Regulatory Comm’n, B-247155, 1992 WL 726317 (Comp. Gen. July 7, 1992). The EPA contended that its power to compromise or remit civil penalties with or without conditions under section 205 of the Clean Air Act provided a legal basis for its practice of funding public awareness projects with civil penalties. The opinion rejected the EPA’s proposal, finding that using penalty money to fund such projects would violate the MRA in all the ways it had previously explained: where the proposed project was not designed to remedy and prevent the specific harms caused by the violation, it would violate congressional appropriations power generally and the MRA specifically. Id. 139 U.S. Envtl. Prot. Agency, B-247155.2, 1993 WL 798227 (Comp. Gen. Mar. 1, 1993). 140 Id. (internal quotation marks omitted). 2015] RESTORATIVE JUSTICE 395 authority and not run afoul of either Congress’s Article I power of the purse or the MRA.141 Within two years, the EPA would translate the Comptroller General’s guidance into an Interim Revised Supplemental Environmental Projects Policy.142 This publication also introduced the catchy civil-side moniker of the Supplemental Environmental Project, or “SEP.” The EPA clarified these civil enforcement guidelines in 1998, when it promulgated its Final EPA Supplemental Environmental Projects Policy.143 The DOJ then translated these civil enforcement guidelines into criminal sentencing guidance in a 2000 DOJ memo.144 The 2000 guidelines would be rearticulated in a 2012 United States Attorneys’ Bulletin.145 And as far back as the mid-1990s, the EPA and DOJ were administering supplemental sentences with some frequency.146 The DOJ has explained that in addition to the goals of deterrence and corporate compliance, supplemental sentencing measures can “more fully remedy the harm to the environment and the community caused by the violation . . . .”147 It articulates several guidelines that, if followed, can keep the sentence within executive authority. Notice again how readily they transfer to anti-bribery law specifically and extraterritorial white-collar crime generally. The first and most fundamental requirement, arising directly from the Government Accountability Office opinions, is the nexus requirement. “Nexus is the relationship between the violation and the proposed project[,]”148 and the purpose of the nexus is to ensure that any harm or threatened harm to victims or the environment is actually addressed.149 It further ensures that supplemental projects “do not run afoul of any Constitutional and statutory requirements” by circumventing congressional authority to allocate the monies of the U.S. treasury.150 The enforcement agencies have developed three circumstances in which the nexus may be satisfied: first, where the project is “designed to reduce the likelihood that similar violations will occur in the future”; second, where the project “reduces the adverse impact” of the violation; or third, where the project “reduces the overall risk” to the 141 Id. 142 Final EPA Supplemental Environmental Projects Policy Issued, 63 Fed. Reg. 24,796 (May 5, 1998). 143 Id. 144 See ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at A-1. 145 Dighe, supra note 116, at 104. 146 For examples of early supplemental sentences, see ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at B-1 to B-20. 147 Id. at A-1. The measures can also “encourage more efficient environmental technologies and corporate management practices, leverage greater environmental and public health improvements, and advance important priorities like pollution prevention.” Id. 148 Id. at B-15 n.49. 149 Id. 150 Nexus Memo, supra note 135. 396 OHIO STATE LAW JOURNAL [Vol. 76:2 community affected by the violation.151 Notably, EPA Guidelines specifically mention that a nexus can exist even where the project “will involve activities outside of the United States.”152 Secondly, and relatedly, the enforcement agencies cannot approve any project that supplements, or appears to supplement, either their own appropriations or the appropriations of another federal agency.153 This “anti - augmentation principle” holds that an improper augmentation of appropriations occurs in any of three circumstances: (1) where a supplemental project helps to carry out a project for which the enforcement agencies or other agencies already have funding; (2) where the federal government is required by law to carry out the project; or (3) where the project is already in existence and already receives federal funding.154 For this reason, the supplemental project must specifically address the harm that resulted from the violation, and/or take new measures to prevent similar future harms. Ultimately, if there is a close relationship between the violation and the supplemental project, the enforcement agencies have the discretion to consider the cost of the project when calculating the overall settlement; “if there is no nexus, then the [agencies do] not have that discretion.”155 Third, the defendant must retain full responsibility for completion of the project; it may not merely give a cash donation to an organization. A cash donation, absent responsibility for completion of a discrete project, would violate the MRA.156 Any trust fund created by a supplemental sentence must be managed by a non-federal entity—whether a charity, educational institution, public interest group, or other organization—that is chosen without favoritism or the appearance of favoritism.157 The trust fund should be managed by neutral third parties, or the money may be deposited in an escrow account and distributed at regular intervals until the project is completed. Federal officials may provide technical oversight to ensure that the project is 151 Final EPA Supplemental Environmental Projects Policy Issued, 63 Fed. Reg. 24,796, 24,798 (May 5, 1998). 152 Id. 153 Nexus Memo, supra note 135, at 23; see also ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at B-11. 154 Nexus Memo, supra note 135, at 2–3; see also Motor Coach Indus., Inc. v. Dole, 725 F.2d 958, 964–65 (4th Cir. 1984); U.S. GEN. ACCOUNTING OFFICE, 2 PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 6-162 to 6-163 (3d ed. 2004). 155 Nexus Memo, supra note 135, at 2. 156 Memorandum from John Peter Suarez, Assistant Adm’r, EPA Office of Enforcement & Compliance Assurance, to Regional Counsels et al. ¶ II.A. (Dec. 15, 2003), available at http://www2.epa.gov/sites/production/files/documents/seps-thirdparties.pdf, archived at http://perma.cc/GYN2-XW3F. This prohibition on cash donations was first articulated by the Office of Legal Counsel opinion concerning a Department of Interior proposal. Steuart Transp. Co., 4B Op. O.L.C. 684, 684 (1980). 157 See ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at B-18 to B-19. 2015] RESTORATIVE JUSTICE 397 consistent with the sentence but may not actually manage the project or its funding.158 The memos enumerate various permitted sentencing objectives: remediation and restoration (taking steps to restore and enhance the environment near the site of the violation); prevention (beyond what is already required by federal environmental law, with the aim of developing innovative new processes); restitution payments to local agencies for their remediation costs; setting up trust funds for the long-term monitoring, restoration, and preservation of the resources impacted by the violation; environmental education (in the form of formal educational programs, regulatory training, and speeches to trade groups); and public apologies (in newspapers and other public media).159 Projects that have violated one or more of these guidelines include: general educational or public environmental awareness projects, e.g., conducting tours of an environmental facility or promoting recycling; contributions to research at a college or university; conducting a project of benefit to the harmed community, but unrelated to environmental protection, e.g., making a charitable organization or donating playground equipment; and studies or assessments that do not address the problems they identify. Note that these guidelines are in no way specific to environmental violations. The constitutional context bears this out; so too do the federal sentencing guidelines themselves. The next section describes how the guidelines now authorize supplemental sentences, and in a way that is fully transferable to other areas of enforcement. C. Authorization in the Sentencing Guidelines The DOJ could immediately adopt the supplemental sentence in extraterritorial white-collar enforcement. It now lies within the agency’s prosecutorial discretion because it is authorized under existing federal law. But 158 Id. Additionally, the defendant may not obtain tax relief for the value of the supplemental sentence if the same funds were used to pay a fine. Id. The principle difference between civil and criminal supplemental environmental sentences concerns the relationship between the cost of the supplemental project and the monetary fine. On the civil side, the EPA has worked a complex and highly specific five-step procedure for determining the settlement amount without a supplemental project, the cost of the project, and the extent of penalty mitigation. See id. Generally speaking, the mitigation should not exceed 80% of the project’s cost. See id. On the criminal side, no such procedure exists. See id. Though the sentencing guidelines provide these steps for other types of crimes, and provide the guidance for environmental crimes on remediation, community service, and probation, the sentencing guidelines expressly do not apply to the calculation of the fine for environmental violations. See Final EPA Supplemental Environmental Projects Policy Issued, 63 Fed. Reg. 24,796, 24,797 (May 5, 1998). Accordingly, though contemporary criminal sentencing in environmental law will frequently involve a combination of supplemental sentences and monetary fines, the extent to which the fine is discounted for the cost of the project is apparently entirely within the prosecutor’s discretion. Id. 159 See ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at A-6 to A-7. 398 OHIO STATE LAW JOURNAL [Vol. 76:2 the statutory authority for the supplemental sentence does not derive from the environmental statutes or from some kind of specialized amendment to federal sentencing law. Rather, it derives from the standard sentencing sources: the Sentencing Reform Act and the U.S. Sentencing Guidelines. This subsection will first describe how the guidelines authorize these supplemental sentences. It shows that RJ is actually embedded in the very structure of the guidelines, though in nascent form. It then describes how the supplemental sentence could be adapted to extraterritorial white-collar crime without any new legal authorization. Chapter 8 of the Sentencing Guidelines Manual provides a distinct set of procedures for the sentencing of organizational defendants. The prosecutor (in a case settled out of court, as anti-bribery cases virtually always are)160 first determines the offense level based in part on the value of the benefit received and, consulting a chart in the Guidelines, calculates the base fine.161 She then determines a culpability score, which takes into account the size of the organization, the level of personnel involved in the crime, and the extent of the organization’s cooperation and acceptance of responsibility.162 This culpability score produces two “multipliers,” a maximum and a minimum.163 The base fine, multiplied by each of the multipliers, then produces a fine range.164 But the Guidelines then permit the prosecutor to set an ultimate fine that is below the sentencing range; this is known as a “downward departure,” and is permitted for either of two reasons. The first is assistance to the enforcement authorities in the investigation or prosecution of another person, whether an organization or an individual (not affiliated with the defendant).165 The second reason, which is particularly germane to the present inquiry, is remedial costs arising from the offense.166 Two examples can illustrate how the DOJ specifically applies these provisions to extraterritorial white-collar enforcement, again using anti-bribery law as an example. Bizjet, a U.S.-based company that provides aircraft maintenance services to customers around the world, admitted to bribing government officials in Mexico and Panama to win and retain business.167 The DOJ calculated the offense level, considering the base offense and the value of 160 See RESOURCE GUIDE, supra note 85, at 74–77 (explaining the government’s various methods of settling cases without going to trial). 161 U.S. SENTENCING COMM’N, supra note 8, §§ 8C2.3–2.4. 162 Id. § 8C2.5. 163 Id. § 8C2.6. 164 Id. § 8C2.7. 165 Id. § 8C4.1. 166 Id. § 8C4.9. 167 Deferred Prosecution Agreement at 1‒2, United States v. Bizjet Int’l Sales & Support, Inc., No. 12-CR-61-CVE (N.D. Okla. Mar. 14, 2012), available at http://www.justice.gov/criminal/fraud/fcpa/cases/bizjet/2012-03-14-bizjet-deferred- prosecution-agreement.pdf, archived at http://perma.cc/W5YZ-2V58. 2015] RESTORATIVE JUSTICE 399 the benefit, producing a base fine of $28.5 million.168 The culpability score was then determined based on a base score, the size of the organization, and its voluntary disclosure and cooperation.169 The culpability score then produced two multipliers, one high and one low.170 The base fine, multiplied by the culpability multipliers, produced a sentence range of $17.1 million to $34.2 million.171 However, the ultimate fine was $11.8 million, a 30% reduction off the bottom of the range.172 This reduction was appropriate given, inter alia, Bizjet’s “extensive” remediation.173 The remediation included implementation of a corporate compliance program, a review of its internal controls, and periodic reports to the DOJ.174 Biomet, a U.S.-based company that manufactured and sold orthopedic devices, used its subsidiaries in Argentina, Brazil, China, and Sweden to bribe doctors. Because these doctors were employees of state-owned hospitals, the DOJ treated the doctors as “foreign officials.”175 Per the Guidelines, the DOJ calculated the base offense, considering the base offense level, the number of bribes, the value of the benefit, and Bizjet’s “substantial assistance in the prosecution of others,” rendering a base fine of $13.5 million. It then calculated the culpability score based on a base score, the size of the organization, and Biomet’s full cooperation and acceptance of responsibility, again producing two multipliers. The base fine multiplied by the culpability multipliers rendered a fine range of $21.6 million to $43.2 million. However, as with Biomet, the ultimate sentence was $17.28 million, a 20% reduction of the bottom of the range. This reduction was “appropriate” due in large part to Bizjet’s “extraordinary remediation.”176 That remediation included the implementation of a corporate compliance program, the engagement of an independent corporate compliance monitor, and periodic compliance reporting to the DOJ. These anti-bribery examples show that the DOJ already grants downward departures from the sentencing range for remediation. However, they also show that the allowed remediation has historically been limited to compliance programs, monitors, and reporting. Nevertheless, the Guidelines also allow remediation to include programs funded by the defendant that address the harms that the violation caused. The Guidelines describe these non-monetary penalties (the compliance programs, monitors, reporting requirements, etc.) as “conditions of probation.”177 They permit these conditions of probation in a 168 Id. at 5. 169 Id. 170 Id. 171 See id. 172 Id. 173 Deferred Prosecution Agreement, supra note 167, at 3‒7. 174 Id. 7‒8. 175 See RESOURCE GUIDE, supra note 85, at 19–21. 176 Deferred Prosecution Agreement, supra note 175, at 5. 177 U.S. SENTENCING COMM’N, supra note 8, ch. 8, pt. D, introductory cmt. 400 OHIO STATE LAW JOURNAL [Vol. 76:2 number of circumstances, two of which are particularly relevant here: where it is “necessary to ensure that changes are made within the organization to reduce the likelihood of future criminal conduct,”178 and to “ensure completion of community service.”179 The remediation that the DOJ already requires—compliance programs, monitors, etc.—falls into the first category: it is necessary to ensure changes within the organization. The supplemental sentence falls within the second category of probation: community service. Probationary sentences directed to community service derive their authority from the Sentencing Reform Act of 1984, which restructured federal sentencing and established the U.S. Sentencing Commission.180 That statute authorizes the court, as a discretionary condition of probation, to order the defendant to “work in community service.”181 The legislative history explains that community service may be “useful” where the victims “cannot be readily identified.”182 This is of course frequently true in environmental law and virtually always true in anti-bribery law: the victims can be a very broad group of individuals. Like the Sentencing Reform Act, the Guidelines provide that where the victims are not identifiable an “order of probation requiring community service” is appropriate.183 This community service should be designed “to reduce or eliminate the harm threatened, or to repair the harm caused by the offense, when that harm or threatened harm would not otherwise be remedied.”184 Community service then can, or must, both remedy past harm and prevent future harm.185 The supplemental sentence would thus easily fit into existing FCPA sentencing procedures. Following standard procedure, the DOJ would 178 Id. § 8D1.1(a)(6). 179 Id. § 8D1.1(a)(1). 180 Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 15 and 18 U.S.C.). 181 18 U.S.C. § 3563(b)(12) (2012). 182 ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at B-1. 183 The very first policy statement of the “Sentencing of Organizations” chapter of the Guidelines provides that “the court must, whenever practicable, order the organization to remedy any harm caused by the offense.” U.S. SENTENCING COMM’N, supra note 8, ch. 8, introductory cmt. That is, the first principle of federal organizational sentencing is not to deter future harm; it is to remedy past harm. Accordingly, the first substantive section of the organizational chapter is indeed entitled “Remedying Harm from Criminal Conduct, and Effective Compliance and Ethics Program.” Id. § 8B. Notably, the DOJ reads the Guidelines to “support[] the concept that supplemental sentences are important and appropriate.” ENVIRONMENTAL SENTENCING GUIDANCE, supra note 134, at B-5. 184 U.S. SENTENCING COMM’N, supra note 8, § 8B1, introductory cmt. 185 Moreover, the community service is required to “provide[] a means for preventive or corrective action directly related to the offense and therefore serve[s] one of the purposes of sentencing set forth in 18 U.S.C. § 3553(a).” Id. § 8B1.3, cmt. And those purposes extend well beyond deterrence: in addition to providing “adequate deterrence,” the statute provides that criminal sentencing should also, inter alia, protect the public from further violations, promote respect for the law, and provide the defendant with educational training or other “correctional treatment.” 18 U.S.C. § 3553(a)(2)(D) (2012). 2015] RESTORATIVE JUSTICE 401 calculate the base fine and the culpability multipliers, and set a fine range. It would then consider whether to grant a downward departure. It might grant a departure based on the already familiar terms of probation: compliance programs, internal control improvements, outside corporate monitor, and the submission of periodic reports to the DOJ. But in addition to these forms of remediation, it would grant a further condition of probation—say an increase from a 20% to a 30% departure—for the defendant’s community service projects. The projects would fully comport with the DOJ’s already existing Guidelines for complying with the MRA. Accordingly, the Guidelines would have a nexus to the violation, would not augment a project that is already receiving federal funding, and the government would play no part in managing the project or its funding.186 Following the Guidelines and the environmental precedents, the projects could take a couple different forms. Focusing on prevention through education, the defendant could fund a variety of training programs. These programs would need to be specifically designed to prevent the conduct that gave rise to the violation. They might focus on trade groups, government officials, or business- and law-school students. The defendant might even establish a training center that provided certification in anti-corruption compliance, as recently occurred in environmental enforcement. The training must be specifically designed to prevent the specific harms that the defendant’s violation had caused, must occur in the communities where the violation occurred, and must be funded and managed entirely by the defendant (or a third party).187 The projects might also seek to correct the harm that resulted from the violation, or prevent similar harm in the future.188 In the corruption space, correcting past harms will sometimes prove impossible; in this regard, FCPA violations are essentially different from environmental violations. However, an FCPA defendant would seem uniquely positioned to identify preventative measures that could reduce future harms. This need not be limited to training programs. With the financial support made possible by the supplemental sentence, the defendant could work in conjunction with outside experts (NGOs, consultants, or academics) to write a detailed report. The report could identify the conditions in the host country that gave rise to the violation and develop a series of innovative reforms that would have prevented the violation. These reforms might involve corporate governance, host-country governance, investigative reporting, or enforcement among capital-exporters. They might include the development of enforceable agreements or pacts among competitor companies, the funding of other private-sector initiatives, or more formal legal 186 See supra Part III.B. 187 See supra Part III.B. 188 See supra Part III.B. 402 OHIO STATE LAW JOURNAL [Vol. 76:2 reforms. The defendant, likely working through a third party, could then undertake a sustained and well-funded effort to implement the reforms. The following section shows how this idea could work out in a specific (though hypothetical) enforcement action. It explains how a supplemental sentence, based on the policies and aims of restorative justice, would comply with the U.S. Constitution, the Miscellaneous Receipts Act, and the Guidelines. D. A New Proposal This Article has exposed a fundamental paradox, if not a riddle, of extraterritorial white-collar enforcement: we must reach the unreachable, punish the unpunishable, alter the conduct of whole categories of persons who lie beyond our jurisdiction. This riddle exists because deterrence-based enforcement leads to increased levels of host-country bribery. Limited to a one-dimensional focus on manipulating the incentives of those corporate actors subject to its jurisdiction, it creates the conditions in which the criminal conduct of other actors may proliferate. To resolve the paradox, or solve the riddle, criminal punishment must impact, to the extent possible, the behavior of foreign corporations and host-country government officials. The enforcing jurisdiction cannot and will not eliminate criminal conduct by those actors; but it can and should aspire to ensure that its own enforcement efforts do not make the problem worse. Restorative justice, as applied to multinational corporations, can resolve the riddle in the following way. Imagine a multinational corporation (MNC) with jurisdictional ties to the United States has allegedly committed several FCPA violations in a particular developing country.189 To wit, in seeking to gain government approval to enter this market, the MNC flew key officials (and not their spouses) to a lavish offshore location where it hosted several days of “preliminary negotiations.”190 During the visit, the MNC provide expensive gifts—cognac, designer clothing, and luxury box tickets to a high- profile sporting event—to each of these officials.191 Finally, the MNC provided jobs to younger relatives of several of the officials. Once these high- ranking officials approved the MNC’s market entry, the MNC then needed to build a number of facilities and sought the cooperation of local officials. It hired a local attorney who specialized in obtaining government approvals.192 That attorney coordinated the bribing of various local officials to obtain building permits where the zoning regulations otherwise prohibited 189 See RESOURCE GUIDE, supra note 85, at 11–12 (explaining the FCPA’s jurisdictional provisions). 190 Id. at 24 (discussing “reasonable and bona fide expenditures”). 191 See id. 192 See id. at 21–23 (discussing third parties). 2015] RESTORATIVE JUSTICE 403 commercial property. So too did the local attorney bribe building inspectors to permit cost-cutting construction measures that violated safety codes. Once the allegations arose, the MNC followed the standard practice of retaining an outside law firm to conduct an independent investigation and prepared a report detailing its factual findings.193 To receive cooperation credit,194 the MNC fully cooperated with the DOJ including voluntarily disclosing the investigation report. The defendant enters into a deferred prosecution agreement that stipulates to a number of facts and provides a sentencing range based on the Guidelines’ procedures. Imagine that the base fine is $50 million, and the sentencing range is $35 million to $65 million. But the DOJ grants a 30% downward departure—as it has already shown itself willing to do195—and requires the defendant to pay a fine of only $24.5 million. This downward departure is appropriate because the defendant has agreed to a number of remedial conditions of probation: it has adopted various internal controls, instituted a rigorous compliance program, and accepted an independent corporate monitor.196 Additionally, the MNC has volunteered to fund a series of community service projects. These projects will be designed to help the particular local communities where the bribes occurred.197 To design the projects, the MNC consulted various representatives of those communities: civic leaders, NGOs, and local businesses. In these consultations, the MNC sought to more fully understand how its conduct impacted the community, which specific harms it caused, the extent to which those harms can now be remedied, and how to prevent similar harms in the future. The MNC also came to more fully understand the local cultural norms surrounding corruption, and discovered that its conduct, which violated the FCPA, fell into three categories: the locals perceived some of the MNC’s conduct as highly unusual and offensive (the lavish business trip, for example); some was perceived as quite common, but still offensive (bribing the local officials to violate safety and zoning regulations); and yet some of the conduct was quite common and not particularly offensive (the cognac, clothes, and tickets, for example). The MNC then used this feedback to determine which forms of corruption it should try to remedy and prevent. That is, the local community’s definition of corruption, and not the U.S. enforcement agencies’, guides the project. In consultation with internationally recognized anti-corruption experts, the MNC develops three specific projects, proposing a specific timeline and cost for each. The defendant agrees to completely finance the project and manage 193 See id. at 52–56 for an introduction to enforcement procedures. 194 For a discussion of the alleged “credit” that defendants receive for cooperating with the government’s investigation, see Bruce Hinchey, Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements, 40 PUB. CONTRACT L.J. 393, 420‒21 (2010). 195 See supra Part III.C. 196 See U.S. SENTENCING COMM’N, supra note 8, § 8D1.4. 197 Id. §§ 8B1.3, introductory cmt., 8D1.3 404 OHIO STATE LAW JOURNAL [Vol. 76:2 the payment. So too does the defendant assume full responsibility for completing the project, likely through hiring a third party, and remains liable for its non-completion. The cost of the proposed community service projects then forms the basis of the additional downward departure: the defendant’s fine is reduced by a percentage of the projects’ cost, as determined by the prosecutor in her discretion. The first such project is a small business-loan program for any merchants who can demonstrate that their local business materially suffered as a result of the MNC’s bribes. This proposal is designed to remedy certain of the harms that the defendant’s conduct caused in disrupting local markets. The second project is a training center for local businesses, attorneys, and government officials, which offers training on how to conduct business with outside companies without drawing them into violation of extraterritorial anti-bribery laws. The center provides a certification that its graduates use to represent to foreign companies that they were well versed in the prevention of bribery violations. Third, the MNC agrees to write a comprehensive report on its experience of paying bribes in that country.198 The report would concede no further facts than were already made public in the deferred prosecution agreement (DPA). Based only on those facts, the report would describe in detail which bribes the MNC paid, and more importantly, why. It would further describe what the MNC discovered about the adverse impact of their conduct on the local community. And unlike the deferred prosecution agreement, the report would then be translated into the local language and systematically publicized across the local media. This report would serve two purposes. First, it would be a sort of public confession, written in the tone of a mea culpa. The MNC would admit to its illicit payments (as it already has in the DPA) and acknowledge the harm that these bribes caused in the local community. But in the course of this confession, the report would also describe the conditions in which the MNC felt the bribes were necessary. It would allude to, if not outright detail, the behavior of our two other sets of actors. The first would be the local government officials. The report would indicate where bribes were reasonably thought necessary to obtain the government’s approval, either because the official committed outright extortion or because he simply refused to do his job otherwise. Second, the report could also explain the conduct of local and foreign competitor companies. These competitors might be paying bribes to obtain an advantage, such that the defendant felt it could not compete without doing the same, or the local competitors might routinely engage in this conduct, and the government either does not care and expected 198 One of the “Recommended Conditions of Probation” in the Sentencing Guidelines Manual is that the organization “at its expense” and in a specified “format and media” may “publicize the nature of the offense committed, the fact of conviction, the nature of the punishment imposed, and the steps that will be taken to prevent the recurrence of similar offenses.” Id. § 8D1.4(a). 2015] RESTORATIVE JUSTICE 405 it or even demanded the same. The mea culpa, then, would simultaneously expose the extent of the problem that existed prior to the defendant’s investment in that market. The defendant MNC would design a plan to publicize this report in two ways. First, and as indicated above, it would distribute the report across the local media. Second, it would deliver the report to various international organizations, particularly those charged with overseeing the implementation of the various anti-corruption agreements: the United Nations Office of Drugs and Crime (custodian of the UN Convention Against Corruption)199 and the Organization for Economic Cooperation and Development (custodian of the OECD Convention on Combating Bribery of Foreign Public Officials),200 as well as the major relevant NGOs such as Transparency International.201 This report, thus publicized, and in combination with the training facility, would begin to improve the host-country conditions that precipitate bribery in several ways. First, host-country officials would be educated in bribery- reduction strategies. This training would help, but of course these officials have material incentives to continue accepting bribes. Where education and good will cannot reduce the problem, the report steps in, and provides the second mechanism for improving host-country conditions. In publicizing the company’s report of systemic bribery across the local and national media, local political pressures are exerted on the government to effect reforms; consider Brazil or China as powerful recent examples of this phenomenon.202 Third, in the hands of international organizations, the report can trigger the levers of international diplomacy, exerting pressure on two kinds of countries. Of course, where the host country has proven to be systemically complicit in international bribery schemes, organizations will pressure the country to more meaningfully enforce domestic bribery prohibitions. But so too will these levers be brought to bear on the other capital-exporting nations whose companies are participating in the host-country’s bribery. That is, the non- enforcing capital-exporting jurisdictions, whose companies pay bribes overseas without fear of punishment, can be pressured to enact and enforce extraterritorial bribery prohibitions. This is the story of the OECD’s Anti- Bribery Convention, in which recent years have shown a steady increase in enforcement by member nations largely in response to the pressure of fellow members. Germany, for example, which once publicly mocked the United States for enacting the FCPA, has now become among the OECD’s leading 199 United Nations Convention Against Corruption, G.A. Res. 58/4, U.N. Doc. A/58/4 (Oct. 31, 2003). 200 OECD Anti-Bribery Convention, supra note 58. 201 See TRANSPARENCY INTERNATIONAL, http://www.transparency.org/ (last visited Mar. 25, 2015), archived at http://perma.cc/F9N9-NT45. 202 See, e.g., Taking to the Streets, ECONOMIST (June 22, 2013), http://www.economist.com/news/americas/21579857-bubbling-anger-about-high-prices- corruption-and-poor-public-services-boils-over, archived at http://perma.cc/5WJC-AFKU. 406 OHIO STATE LAW JOURNAL [Vol. 76:2 enforcers of its similar law.203 Through these levers, those companies that were once substitute investors now become reluctant bribe payers. As the number of jurisdictions enforcing an extraterritorial prohibition increases, and the number of reluctant MNC bribe payers increases, rates of host-country bribery decline. Admittedly, these methods would only make a minor dent in the prevalence of host-country bribery. They would constitute but a small part of a much larger and more complex strategy for reducing such bribery. But recall our aim:204 to reduce host-country bribery by somewhere between 4–11%. Were that mark achieved, the enforcing country would have accomplished its goal: to enforce an extraterritorial prohibition that actually improved the social conditions of both the actual and prospective victims of multinational corporate crime. This accomplishment, at once modest and transformative, is made possible by the uniquely three-dimensional approach of restorative justice.205 The defendant does not merely pay a fine; it is forced to confront the victims of its crime. Through the consultations with community leaders, the MNC is confronted by, and listens to, the victims (and their representatives).206 In then deliberately broadcasting across the local media an admission of its guilt, the MNC admits to its wrongdoing and acknowledges the harm it caused. Perpetrator and victim thus hear each other’s narratives, seeking understanding and reconciliation.207 The defendant then voluntarily participates in the sentencing by designing community service projects and taking full responsibility for their cost and completion.208 The community has thus achieved a fuller understanding of its past, and its future, and the norm transgression is affirmed.209 The victims are restored both through remediation (such as the loan program) and prevention (the training center and the political pressure to implement reforms). The victim becomes empowered: its own account of the crimes committed and the harms caused, informed by the community’s own cultural norms and social experience, forms the basis of the sentence. To the extent that the defendant has thus repaired its reputation and restored a measure of good will in the community, it can resume its business practices. Now compliant with anti-bribery laws, it reintegrates into the very community it once knowingly victimized and repairs the social processes it once damaged. 203 For a historical account of Germany’s compliance with anti-bribery conventions, see, for example, Germany – OECD Anti-Bribery Convention, OECD, http://www.oecd.org/daf/anti-bribery/germany-oecdanti-briberyconvention.htm (last visited Mar. 5, 2015), archived at http://perma.cc/M3JS-TFV2. 204 See supra Part III.C. 205 See supra Part IV.A. 206 See BRAITHWAITE, supra note 7, at 11. 207 Menkel-Meadow, supra note 90, at 164. 208 See E.S.C. Res. 2002/12, supra note 97, at I.2. 209 See Walgrave, supra note 96, at 61–62. 2015] RESTORATIVE JUSTICE 407 However, the defendant’s overall financial penalty is no less than a traditional fine, and can actually be greater: the defendant’s fine reduction may be less than the full cost of the projects, as determined in the prosecutor’s discretion. The good will benefits to the corporation thus do not render the sentence’s deterrent value lower than a conventional fine.210 Moreover, care will be taken to ensure that the defendant corporation does not benefit in any illicit way from the project; the project will likely be managed in large part by a neutral third party, and the defendant may be required to submit periodic reports to the DOJ. The corporation and the third party can likewise manage the project with sufficient care to ensure that the host country’s government or third parties do not embezzle the money. The corporation will use its ample resources to monitor the project and ensure that the money never passes into any government official’s hands, whether in the United States or the host country. This proposal is not without its drawbacks. The possibility that these anti- corruption measures could become corrupted is of course omnipresent. Some may argue that any gains from these projects will be offset by the loss in revenue to the U.S. treasury. And yet others may simply maintain that the United States has historically concerned itself too much, and not too little, with “reforming” countries in transition. Finally, some will note that crime is a vast, complex, and deeply-entrenched problem which the developed world’s efforts, no matter how innovative and well-meaning, cannot solve. The latter point, at least, is certainly true. We will not eliminate bribery, or corporate crime, whether overseas or within our own jurisdictions. Nor will we eliminate murder; but this is hardly an argument against its prohibition. The proposal developed here has a much more modest goal: to ensure that our efforts to reduce overseas crime make the situation incrementally better or, at very least, do not make the problem worse. V. CONCLUSION Two recent U.S. Supreme Court cases famously restricted laws that (once) governed overseas corporate conduct: Kiobel v. Royal Dutch Petroleum Co.211 (concerning the Alien Tort Statute), and Morrison v. National Australian Bank Ltd.212 (concerning Section 10b of the Securities Exchange Act of 1934). But rumors of the death of extraterritorial application are greatly exaggerated. Federal law continues to govern—legitimately—U.S. corporations overseas in such diverse areas as employment discrimination,213 antitrust,214 trade and 210 Duff, supra note 103, at 43. 211 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). 212 Morrison v. Nat’l Australian Bank Ltd., 561 U.S. 247 (2010). 213 Age Discrimination in Employment Act, 29 U.S.C. §§ 621‒634 (2012); Civil Rights Act of 1964, tit. VII, 42 U.S.C. § 2000e(f) (2012); Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (2012), as amended by Civil Rights Act of 1991, Pub. L. No. 102-166, § 109(b), 105 Stat. 1071. The U.S. Supreme Court had invoked the presumption 408 OHIO STATE LAW JOURNAL [Vol. 76:2 economic sanctions,215 money laundering,216 and of course, bribery.217 Supreme Court jurisprudence notwithstanding, Congress’s constitutional authority to regulate foreign commerce is indeed alive and well.218 And we should expect Congress to exercise that authority with increasing, rather than decreasing frequency, as U.S. companies increasingly invest in foreign markets. Where those markets’ legal regimes remain nascent, the capital-exporting country bears a substantial burden. Whether foreign investment in developing countries inures to the latter’s good, or ill, depends in large measure on the careful enforcement of extraterritorial corporate criminal law. This Article sounds a note both cautious and optimistic. Familiar modes of criminal punishment—general deterrence guided by the utility calculations and incentive adjustments of law and economics—will not carry the day. In any area of corporate conduct that host countries and other capital exporters fail to effectively regulate, our own deterrence efforts will frequently make matters worse. But the solution, perhaps surprisingly, has been there all along. Restorative justice provides an alternative paradigm of criminal punishment with already well-established authorization under the U.S. Constitution, the Guidelines, and a decades-old DOJ practice. It could restore overseas victims through both remediation and prevention, and would help ensure that our foreign investment promotes, rather than impedes, the growth of sustainable institutions. The remedy this Article proposes is thus already completely legal under federal law. It requires no more for its immediate adoption than our government’s informed resolve. against territoriality to hold that Title VII did not so apply. EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991). That same year, Congress responded by amending both Title VII and the ADA to expressly apply extraterritorially. See Spalding, The Irony, supra note 12, at 383–85. 214 Sherman Act, 15 U.S.C. §§ 1–7 (2012); Clayton Act, 15 U.S.C. §§ 12–27 (2012). 215 The two principal statutes are the International Emergency Economic Powers Act, Pub. L. No. 95–223, 50 U.S.C. §§ 1701–1707, and the Trading with the Enemy Act, 50 App. U.S.C.A. §§ 1–39, 41–44 (West 2014). 216 Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956–1957 (2012); Bank Secrecy Act, 21 U.S.C. §§ 1951‒1959, 31 U.S.C. §§ 5311–5314, 5316‒5332 (2012). 217 Foreign Corrupt Practices Act of 1977 (FCPA), Pub. L. No. 95-213, 91 Stat. 1494, amended by Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 and by International Anti-Bribery and Fair Competition Act of 1998, Pub. L. No. 105-366, 112 Stat. 3302 (codified as amended in scattered sections of 15 U.S.C.). 218 U.S. CONST. art. I, § 8, cl. 3. See generally Anthony J. Colangelo, The Foreign Commerce Clause, 96 VA. L. REV. 949 (2010) (discussing the scope of congressional authority to regulate foreign commerce). 
work_rtmmwdmnqfcvveael5uaxc4my4	----	Durham Research Online Deposited in DRO: 26 April 2013 Version of attached �le: Published Version Peer-review status of attached �le: Peer-reviewed Citation for published item: Brooks, Thom (2013) 'Introduction to climate change justice.', PS : political science and politics., 46 (1). pp. 9-12. Further information on publisher's website: http://dx.doi.org/10.1017/S1049096512001400 Publisher's copyright statement: Copyright c© American Political Science Association 2013. This paper has been published Cambridge University Press in 'PS : political science and politics'. (46: 1 (2013) 9-12). http://journals.cambridge.org/action/displayJournal?jid=PSC Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro�t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 http://dro.dur.ac.uk http://www.dur.ac.uk http://dx.doi.org/10.1017/S1049096512001400 http://dro.dur.ac.uk/10764/ http://dro.dur.ac.uk/policies/usepolicy.pdf http://dro.dur.ac.uk Climate Change Justice ............................................................................................................................................................................................................................................... Introduction to Climate Change Justice Thom Brooks, guest editor, Durham University .................................................................................................................... C limate change represents one of our great- est public policy challenges. A broad, well- established and international scientific consensus exists that our planet is undergoing climate change. The question is not whether there is climate change, but how best to respond to it. Climate change is a global phenomenon that requires a global effort unlike anything previously attempted. This global challenge is complicated by related and more controversial questions about causal responsibility. Although convincing evidence showsthatclimatechangeisaresultofhumanbehavior,much less agreement exists on how this should factor into policy. Thisintroductionprovidesageneraloverviewoftheglobal challenge of climate change that confronts us along with the distinctive contributions presented in this symposium on cli- mate change justice. Political science and related disciplines have much to contribute to how we understand the problems faced and policy considerations essential in best addressing climate change. CLIMATE CHANGE: MORE QUESTIONS THAN ANSWERS? Climate change, as a topic, appears to produce more ques- tionsthananswers.An“unequivocal”globalscientificconsen- sus confirms the existence of climate change (Pachauri and Reisinger 2008, 30). Human activities are responsible for the creation of greenhouse gases that have given rise to climate change: it has been at least 420,000 years since the Earth has had so much carbon dioxide and methane in its atmosphere (Singer 2002, 16). Climate change has contributed to multiple effects including, but not limited to, increasing threats to coastal wetlands from rising sea levels, greater likelihoods of droughts threatening agricultural production, and the spread oftropicaldiseasestonewgeographicalregions(Pachauriand Reisinger 2008, 33). Additional problems include the more recent phenomenon of “environmental refugees” as people are forced to move because of climate change (Byravan and Rajan 2010). The facts of climate change and its present effects are not in dispute. Current controversies center on two related issues. The first concerns how we should best respond to climate change. One response is to argue for mitigation. This view recommends reducing human impact on the environment through efforts such as conservation. For example, we might propose that each person should live within his or her “envi- ronmental footprint” and no more (Wackernagel and Rees 1996).Thisfootprintwouldbecalculatedtoensurethathuman beings taken collectively would have a much smaller foot- print and, thus, more sustainable environmental impact. Another example is the polluter pays principle (Caney 2008). This principle claims that polluters should pay because they polluteandthispollutionmaybeharmful intermsofits likely negativeenvironmentaleffects.Polluterspaytodeterthrough monetary disincentives that might help foster greater conser- vation; their payments could contribute to mitigation efforts. The second response argues for greater adaptation (Kahn 2010). The idea is that climate change might have less harm- ful effects if we could better adapt to expected future changes. If coastal communities are under threat from rising sea levels, then one way to adapt would be to create new flood defences or perhaps floating cities. Climate change can be managed throughfuturetechnologythatenablessuccessfuladaptation. There is no consensus on which response is most prefera- ble. In fact, most scholars argue that some combination of mitigation and adaptation is recommended, in part, because we must begin to adapt to the climate change that has already taken hold (Gardiner 2004, 573). Nonetheless, where to draw the line and which side to emphasize is widely contested, including the issue of which particular proposal to endorse amongenvironmentalfootprints,polluterpaysprinciples,and much more. The debate about climate change is not about whether it exists, but what to do because it exists. A related second issue concerns how causal responsibility figures into our analysis. The global scientific consensus con- firms that human beings are largely responsible for climate change today. However, some human beings are more respon- sible for it than others. More affluent countries, such as the United States, have contributed more greenhouse gas emis- sions than much less affluent countries, such as the develop- ing world. Although the first issue is what should we do to bestaddressclimatechange, thesecondissueiswhethersome countries should do more about climate change because, col- lectively, they are more responsible for it. This second issue is particularly thorny. For example, car- bon emissions may remain in the atmosphere for decades. We normally hold persons responsible for what they could have foreseen. But the link between human activities and climate change is more recent. So earlier generations might ............................................................................................................................................................................................................................................... SYMPOSIUM ............................................................................................................................................................................................................................................... doi:10.1017/S1049096512001400 PS • January 2013 9 Brooks, Thom. 2013b. “In Defence of Political Theory: Impact, Opportunities, and Potential Threats.” Political Studies Review. Byravan, Sujatha, and Sudhir Chella Rajan. 2010. “The Ethical Implications of Sea-Level Rise Due to Climate Change.” Ethics and International Affairs 24: 239–60. Caney, Simon. 2008. “Cosmopolitan Justice, Responsibility, and Global Cli- mate Change.” In The Global Justice Reader, ed. T. Brooks, 689–713. Oxford: Blackwell. Gardiner, Stephen M. 2004. “Ethics and Global Climate Change.” Ethics 114 (April): 555–600. Gardiner, Stephen M. 2013. “The Desperation Argument for Geoengineer- ing.” PS: Political Science and Politics 46 (1), this issue. Heyward, Clare. 2013. “Situating and Abandoning Geoengineering: A Typol- ogy of Five Responses to Dangerous Climate Change.” PS: Political Science and Politics 46 (1), this issue. Kahn, Matthew E. 2010. Climatopolis: How Our CitiesWillThrive in the Hotter Future. New York: Basic Books. Pachauri, Rajendra K., and Andy Reisinger, eds. 2008. Climate Change 2007: Synthesis Report. Geneva: Intergovernmental Panel on Climate Change. Posner, Eric A., and Cass R. Sunstein. 2008. “Climate Change Justice.” George- town Law Journal 96: 1565–1612. Schlosberg, David. 2013. “Political Challenges of the Climate-Changed Soci- ety.” PS: Political Science and Politics 46 (1), this issue. Singer, Peter. 2002. OneWorld:The Ethics of Globalization. New Haven, CT: Yale Univeristy Press. Shepherd, J., P. Cox, J. Haigh, D. Keith, B. Launder, G. Mace, G. MacKerron, J. Pyle, S. Rayner, C. Redgwell, and A. Watson. 2009. Geoengineering the Climate: Science, Governance and Uncertainty. London: The Royal Society. Vanderheiden, Steve. 2013. “What Justice Theory and Climate Change Politics Can Learn from Each Other.” PS: Political Science and Politics 46 (1), this issue. Wackernagel, Mathis, and William E. Rees. 1996. Our Ecological Footprint: Reducing Human Impact on the Earth. Gabriola Island: New Society Publishers. SYMPOSIUM AUTHORS ThomBrooks isreaderinlawatDurhamLawSchool. Hewaspreviouslyreaderinpoliticalandlegalphilos- ophyatNewcastleUniversity,andBrooksheldvis- itingappointmentsatOxford,StAndrews,andUppsala. HeholdsavisitingscholarshipatStJohn’sCollege, Oxford. Brooks is an academician in the Academy of SocialScienceandafellowoftheRoyalHistorical SocietyandtheRoyalSocietyofArts.Brooksworks broadlyintheareasofethics, law,andpublicpolicy. Currentresearchinterestsincludecriminaljustice,cit- izenshipandimmigration,globaljustice,andpublic policyreform.Brooksistheauthoroftworecentbooks includingHegel’sPoliticalPhilosophy(2007,2012) and Punishment (2012). He has edited several books andafive-volumecollectiononpapersincriminal lawandphilosophy( forthcoming).Hiscurrentbook project is Rawls’ Political Liberalism coedited with MarthaC.Nussbaum.Hisresearchoncriminaljus- ticehasfeaturedintheRCUKReportonthetop100 Big Ideas for the Future. He can be reached at thom.brooks@durham.ac.uk. Stephen M. Gardiner is the Ben Rabinowitz En- dowed Professor of the Human Dimensions of the Environment at the University ofWashington, Seat- tle. He specializes in ethics, political philosophy and environmental ethics. He also has interests in ancient philosophy, bioethics, and the philosophy of econom- ics. His current research focuses on global environ- mental problems (especially climate change), future generations, and Aristotelian virtue ethics. He is the author of A Perfect Moral Storm: the Ethical Trag- edy of Climate Change (2011), a coeditor of Climate Ethics: Essential Readings (2011), and the editor of Virtue Ethics: Old and New (2005). He has also published more than 20 articles, on topics as diverse as climate ethics, geoengineering, precaution in inter- national law, nuclear protection, Aristotle’s doctrine of the unity of the virtues, and Socrates’ pessimism about politics. He can be reached at smgard@uw.edu. Clare Heyward is a James Martin Research Fellow in the Oxford Geoengineering Programme, Uehiro Centre for Practical Ethics, and the Institute for Sci- ence Innovation and Society at the University of Oxford. Heyward is interested in issues of global justice and climate change, especially the cultural dimensions of climate justice and justice toward future generations. She conducts research into the ethical and governance issues associated with the broad range of proposed geoengineering techniques, working at the interface between the governance and ethics of geoengineering. She can be reached at Jennifer.heyward@philosophy.ox.ac.uk. David Schlosberg is professor of environmental politics in the department of government and inter- national relations at the University of Sydney. Schlos- berg is author of Defining Environmental Justice and Environmental Justice and the New Plural- ism, co-author of Green States and Social Move- ments, and co-editor of The Oxford Handbook of Climate Change and Society and Debating the Earth, all with Oxford University Press. Known for his work in environmental politics and theory, he has held visiting appointments at the London School of Economics, Australian National University, and Princeton University. Current work includes climate justice, the place of the non-human world in justice theory and practice, and the foci of a new generation of environmental and environmental justice move- ments on sustainable materialism. He can be reached at david.schlosberg@sydney.edu.au. SteveVanderheiden isassociateprofessorofpolitical scienceandenvironmentalstudiesattheUniversity ofColoradoatBoulder,aswellasprofessorialfellowat theCentreforAppliedPhilosophyandPublicEthics inAustralia.Hespecializesinnormativepoliticaltheory andenvironmentalpolitics,withaparticularfocus onglobalgovernanceandclimatechange.Inaddition tonumerouspublishedarticlesandbookchapters on topics ranging from Rousseau’s environmental thoughttothepoliticsofSUVs,andeditedbooksonpolit- icaltheoryapproachestoclimatechange,energypol- itics,andenvironmentalrights,hisAtmospheric Justice:APoliticalTheoryofClimateChange(Oxford, 2008)wonthe2009HaroldandMargaretSprout awardfromtheInternationalStudiesAssociationfor thebestbookoninternationalenvironmentalpoli- tics.HeiscompletingabooktitledDoingOurBit:Indi- vidual Responsibility for Climate Change. He can bereachedatSteven.Vanderheiden@colorado.edu. ............................................................................................................................................................................................................................................... Symposium: Climate Change Justice ............................................................................................................................................................................................................................................... 12 PS • January 2013 Vanderheiden provides a compelling litany of examples that illustrate the importance of justice theories for climate- change policy development, but also shows the pressing need for these theories to become more attenuated and responsive to the practical issues where they might be applied. The prob- lem is not that any view of justice may support multiple conclusions per se, but that the potential applications are ill-defined and should be concretized more substantively. In the next two essays Heyward and Gardiner examine the relation between science, justice, and climate-change public policythroughthecasestudyofgeoengineering.Geoengineer- ing is about efforts to deliberately manipulate the climate on a global scale to counteract anthropogenic climate change (Shepherd et al. 2009, 1). Geoengineering is seen as a poten- tial “third way” that may complement adaptation and mitiga- tion strategies. Clare Heyward (2013) critically examines the idea of geoengineering. She considers so-called geoengineering proposals, such as carbon dioxide removal (CDR) and solar radiation management (SRM). Heyward argues that these proposals are not best understood together, but instead as separate proposals to address climate change. One reason is that these offer different kinds of approaches. For example, CDR extracts carbon dioxide from the atmosphere and so reduces concentrations of greenhouse gases. SRM, in con- trast, reduces not greenhouse gas concentrations, but rather reduces the amount of energy absorbed by the atmosphere. So both CDR and SRM offer different kinds of approaches to addressing the challenges posed by climate change. These are also both different from standard adaptation efforts where the focus is on reducing harm by environmental effects— whereas CDR and SRM each aim in different ways to funda- mentally change the effects themselves. Heyward argues that CRD and SRM take the “‘danger’ out of ‘dangerous climate change’” (Brooks 2013a). Stephen Gardiner (2013) offers a different angle. Geoengi- neering is often presented as the lesser evil, but without much consideration of the ethical and political issues geoengineer- ing raises. Instead, the justification of geoengineering is often based on little more than necessity in the face of global emer- gency: we face an eminent catastrophe that requires greater resources for geoengineering research because it may ensure global climate security. Such claims from desperation are unconvincing. Gardiner argues that we should first consider the condi- tions under which geoengineering might be justified and, sec- ond, the context within which any geoengineering arises and whether this makes any difference to its justification. In par- ticular, Gardiner highlights the special case of paternalism that geoengineering might accept where global climate prob- lems largely created by the most wealthy might be addressed through complete subjugation of the most vulnerable. This position requires a more stringent justification than is often provided.Geoengineeringcontributestoaperfectmoralstorm that demands greater critical scrutiny. Thom Brooks (2013a) concludes the symposium by argu- ing that we must reassess our possible horizons. Often public policy proposals are presented as the solution that will solve the problems presented by climate change. For example, if only we lived within a set “ecological footprint” that set a cap on global emissions, then climate change would stop. Or that it is possible to remove the “danger” out of “dangerous cli- mate change.” Most proposals, unfortunately, view themselves as solu- tions. Climate change is a global phenomenon that humans mightneversuspend,butonlybettermanage.Climatechange is more of a problem because of anthropocentric causes, but climatechangewouldhappeneveniftherewerenosuchcauses. Ourgoalsmustbemorelimitedtoreducingeffectsandimprov- ing adaptability, but avoid higher ambitions to “end” future change.The real challenge of climate change is not about how itmightend,butratherhowitmightbebettermanaged.Issues of justice remain, but these must be understood within a more realistic context. CONCLUSION Climate change presents major global challenges. This intro- duction surveyed the general research and provided an over- view of the distinctive contributions presented in this symposium. Climate change appears to raise more questions than answers rendering policy recommendations difficult or even beyond our reach. Nonetheless, this symposium illumi- nates new grounds for more optimism about the challenges we face and the public policy possibilities for our future. Cli- mate change justice is one of many areas where political sci- ence, and more specifically political theory, provides substantive contributions and significant impact on the major social and political issues that confront us all.2 n N O T E S 1. For example, the idea that negative duties support conservationist or miti- gation efforts alone rests on false assumptions about negative duties and climate change that require greater critical examination (Brooks 2012). 2. See Brooks (2013b) for a more general critical examination of the distinc- tive contributions and impact political theory has for pressing social and political issues. R E F E R E N C E S Brooks, Thom (ed.). 2008. The Global Justice Reader. Oxford: Blackwell. Brooks, Thom. 2012. “Climate Change and Negative Duties,” Politics 32: 1–9. Brooks, Thom. 2013a. “The Real Challenge of Climate Change,” PS: Political Science and Politics 46 (1), this issue. Geoengineering is often presented as the lesser evil, but without much consideration of the ethical and political issues geoengineering raises. ............................................................................................................................................................................................................................................... ............................................................................................................................................................................................................................................... PS • January 2013 11 not have known about the long-term future effects of their activities. This raises questions about whether they should be held responsible for their contributions to climate change. Furthermore, many people might have died while their car- bon emissions remain in the atmosphere. If they should be held responsible, how might this be pursued? Is it wise to hold responsible the offspring of those now dead that unknow- ingly contributed to climate change? Note, that some will readily claim we should argue that such gross negligence is no excuse. The intent here is not to take sides, but to illus- trate that there are sides to take and longstanding debates that continue. This issue becomes murkier when we consider more radi- cal arguments that claim that it is not yet in the interest of some countries, such as the United States, to reduce carbon emissions (Posner and Sunstein 2008). The argument is that although some countries may suffer heavy costs, such as becoming submerged, some countries may enjoy net gains in the next few decades through incremental climate change. Whilelong-termclimatechangeis innoone’s interest, thecur- rent century is an exception. This position has faced heated criticismintheliterature, inpart,becauseofthewaythatcosts and benefits are calculated and also for the view that it is not too late (nor perhaps even desirable) to cease climate change. Climate change is happening, but what to do? Deep con- troversies about the pursuit of mitigation and/or adaptation strategiesdivideus.Therearedeepercontroversiesabouthow toincorporatesomeviewonresponsibilityforclimatechange, especially by past generations, in light of national interest. We may appear to have a better grasp of the questions rather than a convincing set of answers. Climate change is a chal- lenge that offers more problems than solutions. SYMPOSIUM CONTRIBUTIONS This symposium brings together important new perspectives on the global challenge that climate change presents and how we might best consider policy implications. DavidSchlosberg(2013)opensthesymposiumarguingthat werequireanew“climate-challengedpolitics.”Climatechange is happening. Our politics need to move away from past dis- courses about preventing climate change arising in the first place to refocus on best addressing the pressing political chal- lenges that confront us today. This move, from prevention policies to adaptation strategies, is not a retreat or surrender, but a realistic and necessary policy shift that preventing cli- mate change is no longer an option. Adaptationstrategiesareoftenill-definedandunderdevel- oped especially at a political level. What is the relationship between science and electoral politics? Evidence-based policy benefiting the public interest often fails to become public pol- icy. Schlosberg correctly highlights that good science does not always lead to good policy agreements (2013: this issue). This argumentisexplained, inpart,bythepowerfulcorporateinter- ests and political supporters that attempted to discredit the global scientific consensus on climate change in the eyes of theelectorate.Thescientificcommunityhasrespondedbypro- ducing ever more reams of data to support the global consen- sus that climate change is a reality, but with little benefit in winning over the public. Schlosberg argues for a more constructive and dialogic engagement between experts and advocates with the general public. It is not enough that the data is presented to the pub- lic; it isessential thatthepublicengageswiththesciencecom- munity and available evidence to help support their ability to contest and confirm conclusions in a communicative relation- ship that might better control the distortion effects posed by corporate interests. Furthermore, climate-challenged politics must be a poli- tics about climate justice. Adaptation should be considered within a framework of justice with commitments to clear gen- eralprinciples,suchasequity,responsibility,andcapacity.Cli- mate change is more than about avoiding a major global catastrophe, but represents an injustice that most threatens those who are the most vulnerable. Climate change should not be a debate about the science, but about the pursuit of globaljusticewithinthecontextofaglobalscientificconsensus. SteveVanderheiden(2013)exploresthisgapbetweentheo- riesaboutjusticeandtheirrelationtoconcretesocialandpolit- ical issues, such as the global challenge of climate change.Too often theories about justice provide static principles for appli- cation in cases where theory and practice lack a responsive relation with the other. This has led to a stand-off. Theorists develop imaginative constructions independently of concrete practical implementation; likewise,practitionersborrowprin- ciples from theorists without greater engagement with their deeper philosophical commitments. Vanderheiden argues that theorists and practitioners have muchtolearnfromeachother.Hefocusesontheparticularcon- tributions that justice theory offers to current debates on cli- matechange.Forexample,lookatthe1992UNConventionon Climate Change. The Convention specifies key principles of justicesuchasequityand“commonbutdifferentiatedrespon- sibilities,” but it fails to clarify how these principles might be applied in international climate-policy development. Dif- ferent ways of conceiving justice principles may lead to different, perhaps even opposing, policy recommendations.1 Nonetheless, where to draw the line and which side to emphasize is widely contested, including the issue of which particular proposal to endorse among environmental footprints, polluter pays principles, and much more. The debate about climate change is not about whether it exists, but what to do because it exists. ............................................................................................................................................................................................................................................... Symposium: Climate Change Justice ............................................................................................................................................................................................................................................... 10 PS • January 2013 
work_rusb6yf3qzd5poujkjchsuvaza	----	Rastko Jovanov Marija Velinov CONSTITUTIVE JUSTICE AND HUMAN RIGHTS ABSTRACT In order to show the validity of here proposed conception of social ontology and its advantages over descriptive theories of social reality, which in the analysis of the socio-ontological status of human rights find only legally understood normativity as present in social reality, we will first (1) lay out Searle’s interpretation of human rights. In the second step, we will (2) introduce the methodical approach and basic concepts of our socio-ontological position, and explain the structure of the relationship between justice, law, morality, social institutions and collective intentionality. At the end (3) we will show how our theory of social ontology is better than Searle’s legal positivism in examining the ontological status of human rights. At the end, (3) we show in what ways such a theory of social ontology more intuitively and with wider arguments explains the ontological status of institution of human rights than Searle’s legal positivism. 1 Searle’s Theory of Social Reality Searle’s social ontology project is characterized by three elements: collective intentionality, status functions and constitutive rules. In the social field, Searle analyzes human agency in two directions: as (a) cognitive ability that attach- es functions and status determinations to other objects and members of the same group; and as (b) social acts through which people collectively accept these ontological statuses as ontologically real and consider them facts in the outside world. Ontological social dimension is, thus, essentially determined by collective intentionality that produces social facts. Such type of intention- ality is further characterized by the ability of people to share their own inten- tions within a group, which in turn is constituted as a group only through such collective intentionality and collective acceptance of the status and functions which are jointly attributed to other members and social institutions. In this KEYWORDS constitutive justice, collective intentionality, human rights, social ontology, John Searle UDK: 342.7:111 https://doi.org/10.2298/FID1904478J Original Scientific Article Received: 21.09.2019. Accepted: 14.11.2019. PHILOSOPHY AND SOCIETY VOL. 30, NO. 4, 463–644 Rastko Jovanov: Institute for Philosophy and Social Theory, University of Belgrade; jovanov@instifdt.bg.ac. rs. Project cycle of Ministry of Education, Science and Technological Development of the Republic of Serbia “Politics of Social Memory and National Identity: Regional and European Context, Project Number: 179049”. Marija Velinov: Institute for Philosophy and Social Theory, University of Belgrade; marija.velinov@instifdt.bg.ac. rs. Project cycle of Ministry of Education, Science and Technological Development of the Republic of Serbia “Politics of Social Memory and National Identity: Regional and European Context, Project Number: 179049”. ENGAGING INSTITUTIONS │ 479 way, according to Searle, institutional facts as ontological objects are created in social domain, to which we attribute a status functions in a particular con- text, that they inherently do not contain. Searle describes this process with the famous formula ‘X counts as Y in C’. For example, in the context of a traffic accident, a man wearing police uniform, through which he acquires current po- sition and status of certain power, has a certain social deontological authority and power over other participants in a traffic accident. But, when his working hours expire and he removes the uniform, that same man loses in the context of traffic accident his status determination and deontological power. The lat- ter is crucial for the constitution of new institutional facts. This is because the existing constitutional rules attribute to other human beings or social objects “deontic powers” through which the interpersonal relations within a group are regulated. In this way, Searle introduces a normative element into his social ontological theory (duties, obligations, rights, etc.). Nevertheless, he hasn’t de- veloped in a deeper manner the normative side of his theory, limiting it thus to institutional normativity arising from legal positivism, which is evident in his understanding of human rights in the book Making the Social World (2010).1 If the attribution of the new status to social objects by means of collective intentionality becomes a daily routine in the context of a particular group, then this attribution acquires normativity, which can create new constitu- tive rule. According to Searle, this is the situation with human rights as social constructions: “[o]n my account all rights are status functions and thus human creations. We do not discover human rights in nature as we discover human chromosomes. But if human rights are created by human beings, then what ra- tionally compelling justification can we give for the creation of universal human rights?” (Searle 2010: 139–140) Human rights therefore are not ontologically objective, but they are ontologically subjective and institutional, i.e. created by human conventions and thus intentionally relative. But from Searle’s claims – as Corlett noticed – does not necessarily follow that human rights cannot be both institutional and moral (non-institutional), for “a person might possess that same non-institutional (moral) right to potable water even if there existed global (socially constructed) laws denying such a right” (Corlett 2016: 16). The very institutional understanding of human rights, as Searle argues, cannot re- ject counter arguments that a certain society can (and could, as we learn from the recent past) socially construct the category of human rights on a nation- alistic basis, i.e. by exclusion of some other groups and by genocidal plan (i.e. by a social act that involves the collective intentionality) against some other group. Searle does not pay much attention to such arguments that are based on the necessity of the moral foundation of human rights and remains firmly on the ground of legal positivism. 1 In his 1995 book The Construction of Social Reality Searle commented on the prob- lem of human rights just in passing and on one page only: “Perhaps the most amazing form of status-function is in the creation of human rights.” (Searle 1995: 93) CONSTITUTIVE JUSTICE AND HUmAN RIGHTS480 │ RASTKO JOVANOV / mARIJA VELINOV Searle’s neglect and non-insistence on the study of complexity of normative structures of human community life must be wondered at, since according to him norm is an integral part of intentionality, so that “all intentionality has a normative structure” (Searle 2001: 182). But this type of normativity in his so- cial ontology is limited to simple ability of the mind to provide for itself rights and obligations, i.e. to recognize the existing constructed rights and obligations within the given context and joint life in a society. Consequently, only deontic powers, inherently contained by status functions, provide an individual orien- tation in the world and reasons for his/her action. If Searle’s theory contains at all any moral dimension of social institutions, then it is understood only as socially constructed and collectively recognized. That is why Smith and Zaibert can rightfully criticize Searle that in his theory of institutional reality there is no room for moral normativity, i.e. that Searle’s understanding of normativity arises only from the constitutive rules that regulate subjective acts of individ- uals by providing them with desire-independent reasons for action.2 The second issue that remains unresolved by Searle is the issue of legitima- cy of social institutions, as institutional facts are perceived only in a self-refer- ential way (Searle 1995: 32–4, 52–3). The fact that the process of legitimation of institutions is at the end based on the belief, stops his project of social on- tology precisely at the moment at which the original philosophical questions arise. It is necessary to entertain this issue in more details, since it represents a crucial problem for Searle. It seems that the most important role of status functions is explaining legitimacy and authority of other human beings and existing institutions. For example, we recognize that Tramp is the person who has the function and public authority in the USA to order a nuclear attack by the fact that he is the president of this country. The latest claim is explained by the fact that he won the presidential elections and under the existing consti- tution he is the legal president of USA. But how can we legitimize the existing constitution? There now arises the above-mentioned self-referentiality: The constitution is justified because we accept and believe that it is justified. But is it really so? Are all existing institutions based on legalistic beliefs in their justification? Do people not turn to other sources of legitimation of existing normative orders: faith in revelation, conviction in the correctness of different ideologies, moral justification, etc.? 1.1 Searle on Human Rights This problem becomes very clear when we start to analyze the ontological sta- tus of human rights. The ‘Declaration of Human Rights’ (1948) starts by claim- ing ‘All persons possess natural and equal human rights’. But is it not so that collective declarative beliefs, with their guaranteeing mind-world adequacy, constitute social institutions? In that case the ‘Declaration of Human Rights’ should guarantee the adequacy of the mind-world fit and translate a catalog of 2 Cf. Zaibert & Smith 2007: 159 ff., who call this type of normativity ‘soft normativity’. ENGAGING INSTITUTIONS │ 481 human rights into positivity of the institutional network. But we all know that is not so. No human right can be resolved through the declarations, or through countless amendments and appendix to the original declaration. So, how does Searle perceive human rights? I shall here only take into ac- count the last chapter of the Making the World Social which analyzes human rights as status functions (Searle 2010: 174-199). Status ‘human’, who is the hold- er of the rights and obligations, represents a status function, but which directly refers to pre-institutional fact ‘of being human’, i.e. what we believe that is the essence of this ‘being human’. Searle, therefore, must agree that “the justifica- tion for human rights cannot be ethically neutral” (Searle 2010: 130). Accord- ing to this, certain status functions must be ethically justified, they cannot be merely legitimized as a conventional institutional fact and something that is widely accepted in the context of a given society. Nevertheless, regardless of the ethical beliefs that underline human rights, for Searle they still remain a mere convention, and only with respect to a particular society. Hindriks has rightly observed that there is a gap between Searle’s thesis that human rights require the collective recognition of its existence and his claim that they con- tinue to exist even when they are not recognized (Hindriks 2011). It seems that the only solution to this problem lies in an introduction of a different, non-institutional justification of human rights. Indeed, Searle goes this way when he takes into consideration the category of human nature. But even then, he stops at biological understanding of human beings and does not take into account normative ethical beliefs of individuals about their nature as ingredient of a social ontology. In a few pages only (Searle 2010: 190-192) Searle seems to be hesitating which way to go and, apparently falls into ambiguity, if not in a contradiction in his view on human rights. What is it all about? Since human rights - and the constitution as the highest social institution - fall into the self-referentiality, because the status functions of human rights “do not derive from some other institution” (Searle 2010: 192), justification of human rights that are “assigned to beings solely in virtue of being human will have to depend on our conception of what a human being is” (Searle 2010: 192). Sear- le then immediately adds that such assessment of human nature includes only “certain biological characteristics of human beings” (Searle 2010: 192). How- ever, only two pages earlier, he emphasizes that “the justification for human rights cannot be ethically neutral. It involves more than just a biological concep- tion of what sorts of beings we are; it also involves a conception of what is valu- able, actually or potentially, about our very existence” (Searle 2010: 190). Such justification Searle limits to a “certain set of values” (Searle 2010: 198), with no consideration at all for the counter argument that human rights are funda- mentally moral, not merely institutional rights. We believe that Searle’s claim that certain status functions are not ethi- cally neutral must be deepened and must include a much stronger concept of normativity in the sphere of social reality than the one he only allows. How- ever, such a project requires a different social ontology, which does not lim- it the complexity of social life to institutionally reduced normativity. In the CONSTITUTIVE JUSTICE AND HUmAN RIGHTS482 │ RASTKO JOVANOV / mARIJA VELINOV next chapter we shall present a basic draft of such social ontology and show that it can better explain the problem of human rights by drawing attention to pre-institutional constitution of groups, collective intentionality and insti- tutional network of social world. In order to show this, we shall introduce a broader understanding of social ontology, which will not only include a de- scriptive analysis of what is in the social sphere, but will necessarily involve a wider range of human agency, which cannot be reduced to descriptive terms. 2 Towards Normative Account of Social Ontology Unlike Searle, here presented theory of social reality is primarily characterized by the dual position. Namely, social ontology must also include moral norma- tivity of human agency in order to be able to thoroughly encompass the whole complexity of the social sphere. In other words, in addition to social institu- tions (and rights as a fundamental institution of human intersubjectivity) so- cial ontology is necessarily addressed to the issue of the relation of normativity to collective intentionality, which is neglected in current discussions. Having said that, the research should also respond to the requirements of the test of moral normativity within the domain of institutional reality (we will call this type of normativity – strong normativity), not just legal normativity (the only type of normativity that Searle allows, and which we will call - weak norma- tivity or soft positivism, since this type of normativity can avoid examination of the problem of ‘objectivity’ of legal norms in its understanding of the rights as status functions, i.e. as institutional facts). Apart from the objectivity of the institutional order within the very possi- bility of community life, human being per se has the power of judgment and justification of both, his own actions and justness of social life. Social reality is therefore taking place simultaneously on two levels: objective-institutional level and normative-deliberative level. Searle admits that only the first level is constitutive of social reality, and that collective intentionality - although it is familiar with the notions of obligation, rights, duties, etc. – is in no way related to the ‘fact’ of normative justification of existing institutions. But, it is indeed one of the basic social facts, for how could we otherwise put into question the justification of the existence of groups (corporations, societies, states,…) with whose members we share the same collective intentionality? We believe that in addition to the institutional order, the fact of its constant and everyday jus- tification represents a constitutive part of community life. How can we live in a world of social facts without noticing when someone else (some other mem- ber, some other group) violate the ‘rules of the game’ and endangers the en- tire existence of communal life? Or when the same social institutions corrode and survive only on the reification of collective intentionality of the majori- ty of members of a group?3 In order to be able to respond to these questions, it is necessary to add to descriptive institutional life normativity that adorns 3 Cf. Thompson 2017. ENGAGING INSTITUTIONS │ 483 subjectivity as such, i.e. the ability to reason and rationalize, which is inherent to such animals that are human beings. This issue is certainly not new in contemporary social ontology. The prob- lem lies in the fact that not enough attention is paid to it, and current social and ontological theories stop halfway when trying to explain how the norma- tive side of human agency belongs to social ontology. Unlike natural life, social ontology includes also the normativity inherent to human beings. In order to more specifically set forth our position, we will start first with the objective-in- stitutional level of social life, which does not challenge Searle’s basic program. 2.1 Objective-Institutional Level of Social Reality Social reality is, like the objects of the natural world, already given to human beings. Humans first learn to use the objects of social reality, to recognize the status functions that are attached to them, to use them to orient themselves in a given world through desire-independent reasons for their actions. The fun- damental structure of the relationship mind-world – which we find in human perception and practices – is a core concept in social ontology, which Husserl called ‘intentionality’, and by using this category influenced the further devel- opment of social philosophy in the 21st century. We will analyze the form of intentionality characteristic of objective-insti- tutional level only with regard to the law as a fundamental social institution. Pervading nature of the law in the social world was analyzed in 1870 by Jher- ing in his book Die Jurisprudenz des täglichen Lebens.4 With a series of exam- ples from everyday life Jhering shows in a masterful way how the individual always find themself and their actions already within a given legal institu- tional network. Legal intentionality – in terms of connecting with other peo- ple and objects of the social world – is given on the level of human practice in a non-explicit way and prior to any reflection. For example, when we buy a ticket on the train and give it to the conductor to validate it and thus legit- imize our journey, we already find ourselves in a legal institutional network. Our action is already regulated by the existing rules, which we share with other members of a community or a group. Acting in an objective-institutional level is, therefore, impossible without taking the first-person plural perspective, i.e. ‘we-mode’ intentionality. At the objective-institutional level we-mode inten- tionality functions as a habit, as a human ‘second nature’. Agents do not have in their minds explicit intentional purposes of their practice (later we will show that the theoretical reflection necessarily belongs to we-mode intentionality on normative-deliberate level of social reality). Within the institutional network an individual without prior theoretical reflection takes the perspective of the 4 Rudolph von Jhering, Die Jurisprudenz des täglichen Lebens. Eine Sammlung an Vorfälle des gewöhnlichen Lebens anknüpfender Rechtsfragen, 11. Auflage, Verlag von Gus- tav Fischer, Jena 1897. The book has been translated into English 1904 (Law in Daily Life. A Collection of Legal Questions Connected with the Ordinary Events of Everyday Life, Clarendon Press, Oxford) CONSTITUTIVE JUSTICE AND HUmAN RIGHTS484 │ RASTKO JOVANOV / mARIJA VELINOV group agent, i.e. first-person plural perspective. For example, when we check in our ticket at the airport in order to book a seat on an airline flight, our action is in accordance with other actors within the same context as the joint action is already at work here. With our intention to travel from Belgrade to Vienna, our acts need to be in compliance with the existing institutional rules, i.e. they are executed in the sphere of mutual obligations: we are obliged to follow the line leading from the check-point, through passport control, to the gate that is assigned to our flight, while at the same time expecting from others (customs officers, stewards) to synchronize their acts with a common intention that we share. Thus, in the we-mode intentionality our actions are determined by the expected goal of the shared intention (travel) and expected acts of others, who are obliged to work with us in order to achieve the shared purpose. All actions that carry out the institutional network are guided by the per- spective of the group agent and the first-person plural. That is why we call the action of an individual in everyday life, the institutional act, because it is impossible for an individual to successfully orient his action in the outside world without expectation and trust5 that others will act in accordance with the existing rules, but also without his own intention which takes group agen- cy mode. But that would not be possible unless law as a fundamental insti- tution of objective-institutional level of social reality is previously given. The problem of understanding this lies in the complexity of the way in which law is manifested as an objective fact: events, borders, lines, mutual obligations, joint expectations etc. We think that the old word ‘order’ (despite the prob- lematic tradition of its use that it carries as a burden) still best describes the way in which human beings are imbued with legal institutions. This is because this term also shows the fundamental limitation which faces an individual at the objective-institutional level. In fact, there is no order that does not inher- ently contain a binary position inclusion/exclusion related to membership in a group. We shall not dwell on this issue, which we consider one of the funda- mental problems of the philosophy of law, it is enough to point out that this issue indicates that it potentially contains the capacity of genocidal act - as the most radical form of the binary position, because the affirmation of one’s own group in this radically negative social act is happening through the destruction of others or other groups.6 Normativity contained in the objective-institutional level is an expanded version of legal normativity. Modern analytical social ontology, insisting on ontological descriptivity, recognizes only that type of normativity. In contrast to the current trend in social ontology, we consider that a moral normativity must be taken into consideration if one uses such concepts as belief, convic- tion, trust, etc. In the next chapter we will present a draft of normative-delib- erate level of social reality. 5 Schmid argues that ‘interpersonal trust’, as a special kind of joint attitudes, com- bines cognitive and normative elements of shared intentional activity (cf. Schmid 2013). 6 On negative social acts, including the genocidal acts, cf. Bojanić 2015. ENGAGING INSTITUTIONS │ 485 2.2 Normative-Deliberate Level of Social Reality There is widespread consensus in current social ontologies that it is not pos- sible to think normativity without human building of institutions. As a human act, normative order on the objective-institutional level of social reality fore- most enables the personality of subjects, and the related notions of property rights, civil liberties, etc. At the very dawn of the industrial age Hegel correct- ly understood that the institutions do not limit, but enable human actions (cf. for example Zabel 2014). Only through involvement in various institutions an individual becomes a person subject to universal norms. However, in addition to legal norms, intersubjectivity of human life is also subject to the jurisdiction of moral norms, which also require the universality of their validity. We mentioned earlier that the legal normativity of objective-institutional level of social reality and we-mode intentionality that is taken by group mem- bers in their shared agency is enacted eminently in the field of human prac- tice. We-mode intentionality, however, inherently contains the moment of judgment of existing institutions and the necessity of their justification. This is why we want to introduce a distinction between understanding and acceptance of existing institutional facts and their judgment and justification. (Through this difference, we will later try to overcome the gap observed by Hindriks in Searle’s theory – between the thesis that human rights require the collective recognition for their existence and the thesis that they continue to exist even when they are not recognized.) Transfer from the practical moment of collec- tive intentionality onto the theoretical reflection as its ingredient necessarily entails the transformation of agency. An individual, as a member of a group or a society, guides his actions in certain situations also with regard to the moral norms that constitute (or should constitute) an integral part of existing insti- tutions. As long as the community life takes place in the mode of habitus, and institutions successfully and without interruption offer desire-independent reasons for action, moral norms remain in the mode of individual intention- ality, i.e. ‘I-intentionality’ (to use a distinction introduced by Tuomela). Only with the corroding and reification of institutions or with major social changes that alter the structure of the group, moral norms get included in the set of col- lective intentionality. In this case, the intentional structure of the mind-world relation is not immediate (as in objective-institutional level), but is mediated by principles of justice and moral norms.7 At this moment – in which the group itself is transformed during the trans- formation of individual members and their agency – moral standards, in par- ticular the principles of justice, have a constitutive significance for the social reality. For, if constitutive rules cause institutional facts, in what way do the constitutive rules arise and what constitute their background? Why is this 7 It is understandable that perverted notion of justice can also be an intentional ob- ject. Let us remember that the nazi jurists and philosophers worked together on the project Erneuerung des Rechts, which remains the biggest philosophical project in Eu- rope. Cf. Rastko Jovanov’s book Hegel and National Socialism (2017, forthcoming). CONSTITUTIVE JUSTICE AND HUmAN RIGHTS486 │ RASTKO JOVANOV / mARIJA VELINOV primal sphere of constituency of social institutions neglected in modern theo- ries of social ontology at the expense of the regulatory nature of legal norms? The answer probably lies, on the one hand, in overstressing the role of game theory in the social reality, and on the other hand, in the difficulty which is inherent to the term of original constitution. In his response to the problem of first constitution Searle stands at the point of self-referentiality, and thus remains on the ground of positive law, on the ground of regulation, rather than constitution. However, according to Kelsen’s classical definition, the es- tablishment of the law, i.e. the establishment of new order never happens by means of positive law. (Kelsen 1967: 154-155) A true law-maker is a law-break- er.8 With the introduction of the principle of constitutive justice as the object of the collective intentionality in the formation of a group or, as we will soon show, with the introduction of new legal institutions, social ontology acquires a tool to extend Husserl’s intentionality project to the domain of the ontolog- ical constituency, which was actually Husserl’s intention. 2.3 Constitutive Justice Thesis The issue of constitutive justice is the question of the constitution of our so- cial world. Unlike justice, law belongs to the institutional network, but it also enables it at the same time (enabling thus human action as well) by regulating and protecting an order. Therefore, law is always positive and related to the institutional network of the existing order. Unlike law, the concept of justice is negative, corrective. Naturally, certain just principles can become norms and enter the corpus of fundamental rights or the legal canons. But, the essence of the idea of justice tell us also that the justice always partially lies in the absence, in the intended object of consciousness that has yet to be realized.9 But, what is then the ontology of justice? It is precisely in human association, in the fact that people unite for the sake of collectively intended purposes. Or, in other words, the place of justice in the social reality has to be found in the collec- tive intentionality which forms new groups and new social orders, sometimes through agreement and sometimes through struggle between different social groups.10 That is why the idea of human rights could have been born. If it was 8 NB – Personal remark: We did not include the chapter on authority and represen- tation within a group. It was left for another paper. 9 Another moment that the notion of justice contains in itself, which is difficult to distinguish from positive law, is that justice is procedural and has its topos in the pro- cedures through which the ruling group brings new laws and legal institutions. This moment of justice will not be analyzed here. 10 It is always one group, with corresponding collective intentionality, that consti- tutes government in a society. It seems that the modern understanding of politics is one of the reasons that the government in modern states is seldom occupied by a group which can and want to expand its collective intentionality to the largest possible num- ber of citizens who are under its authority, because the group that comes to power is the one that is politically the fittest and morally the most ruthless. It is therefore nec- essary for politically and socially engaged groups that would be willing to come to ENGAGING INSTITUTIONS │ 487 only the question of positive law and existing institutions, the idea of human rights could never have been documented in the form of the Declaration in 1948 and could not have historically continued to evolve. However, in order for us to talk about justice in the social-ontological sense, it is necessary to first provide the definition of freedom, because without it there is no justice. Social-ontologically speaking, freedom may be defined as the ability to achieve the just purposes – by collective intentionality – which would become ingredients of the social institutions. Here we have of a sort of mutual constitution of freedom and justice: Freedom that characterizes human beings as such, precedes logically, but not historically, the principles of righteousness, moral norms and enables the constitutionality of justice to constitute freedom in the institutional network of a certain legal order. In this regard, law should be self-reflexive, in the sense to always take into account its social foundation so that justice can be applied fairly and equal- ly. Regarding socio ontological approach to justice, the notion of law should be treated as responsive law (perhaps very similar to what Perelman, Coleman and Marmor thought about the nature of law), in the sense that law’s foun- dational conventions have the force to obligate other members of a group to shared intentions and cooperative actions that are not only responsive to the constitutional role of just intentions, but also to the “intentions and actions of others”, as Coleman notices (Coleman 2001: 90–92).11 Moreover, our proposed constitutive justice theory gives priority to relations between social groups – and to the prescriptive nature of the social ontology as a kind of quasi contract binding, on the one hand, the collective intended constitutive principles at the foundation of the groups and, on the other, its members (which also determi- nates a vocabulary that group members use in their interpersonal communica- tion) – through which a society is constituted as just. The essence of the con- stitutive argument is that justice and its constitution cannot be separated from the totality of the social contexts in which it is produced. It is an open-ended power, to be formed in a different way. We shall call this the theory of group agency or- ganization: organized groups instead of acting at the level of sovereign states (which are usually closed and formed by a party) or local communities (where their territorial ef- fect would small and with no major consequences for the general population) – the form of the group and its agency that we suggest would try to infiltrate into the international structures and centers of financial and political power. They would necessarily have to consist of academic people, financial center and labor strategists. They would not nec- essarily have to be groups of the same kind or research groups: they would be interdis- ciplinary and would require wide publicity (in terms of what Perelman calls “universal audience” [Perelman 1980: 105]) for their actions and their justification; they would try to have their demands represented in the highest bodies of international law. Because in today’s world, human rights and the ‘policy’ of their implementation also have their sovereign. When the time comes for this to end, enforcement of human rights on a glob- al level, i.e. establishment of global justice, we will be able to better ensure the imple- mentation of these stakeholders. 11 Cf. Murphey, 1986; cf. Marmor 2006: 365: Unlike ‘surface conventions’, ‘deep con- ventions’ are “responsive to [...] deep aspects of human society and human nature…” CONSTITUTIVE JUSTICE AND HUmAN RIGHTS488 │ RASTKO JOVANOV / mARIJA VELINOV approach proposing that human beings are responsible for actively creating their own world with others, the world which simultaneously acts back, shap- ing their own identity. Regarding that, the concept of collective action, which should actualize the just principles, should include the following taxonomy: plural self-determination (opposite to coercion), we-mode intentionality (op- posite to blind reaction), sociality (opposite to privatized nihilism), creativity (opposite to sameness) and rationality (opposite to blind chance).12 3 Constitutive Justice and Human Rights At this point we would like to examine how our proposed theory of social on- tology refers to the problem of human rights, and whether it can provide a more complex account of the way in which human rights exist in our social reality. Human rights belong to the domain of justice – when considered from a moral standpoint; but also some of the human rights belong to the institutional network – when considered from a legal point of view. When a positive law of one group codifies certain corpus of human rights, then those rights become fundamental rights, which are recognized and institutionalized as inherent to each group member as a human being. Thus, they also meet Searle’s require- ment for a universal obligation, but, like the positive law, only within some particular group. As long as they are not codified and recognized by the group as fundamental rights, i.e. inherent to a human being as such, human rights re- main in the realm of moral rights, which yet ought to be established in a posi- tive and legal manner. They therefore also represent the criteria for assessing the legitimity of the existing legal institutions of a certain legal order. A similar distinction between is put forward by Alexy with his introduction of ‘dual the- sis’ which claims that “law necessarily comprises both a real or factual dimen- sion and ideal or critical one,” which is defined by ‘moral correctness’ (Alexy 2012: 3). A similar distinction, which allows the introduction of moral norms in the context of conventional understanding of law as a social fact, is made by Lindahl, distinguishing between ‘legal understanding’ and ‘legal interpretation’ (Lindahl 2013). However, both of these proposed distinctions fail to take into account the key, and for social ontology the most important characteristic of moral norms – namely, their role in the constitution of new institutions. It seems that Searle’s concept of the ‘background’ allows such strategy towards greater acceptance of the role of moral normativity in social ontology. A significant step in this direction made Schmid by introducing the concept ‘plural pre-re- flective self-awareness’, which represents background condition of collective intentionality. As “normative pressure that drives us towards a unified shared perspective with a coherent set of attitudes that commit us, jointly” (Schmid 12 The establishment of the concept of collective action in Marxist philosophy was the one of the characteristics of Yugoslav Praxis school, which through its insisting on concepts of practice, intentionality and sociality lies close to the proposed definition of collective action (Cf. Marković 1974). ENGAGING INSTITUTIONS │ 489 2014: 18), it is possible through plural self-awareness to understand why indi- viduals could act at all on the basis of normative standards as the objects of their shared intentionality. If joint attentions, thus, “is a background awareness of plural selfhood” (Schmid 2014: 18), committing oneself to shared beliefs and shared goals can inhabit the just perspective of the normative foundations of groups and institutions. Moreover, although the role of the human rights and the constitution of new institutions would be artificial, it does not necessarily mean that it would be arbitrary, as Hume properly argue. (Hume, 2000: 311ff.)13 Even though human beings can subsist only through shared communality, the principle of justice – which “takes its rise from human conventions […] intend- ed as a remedy to some inconveniencies, which proceed from the concurrence of certain qualities of the human mind with the situation of external objects” (Hume 2000: 317) – is necessary to coerce the forces of egoism in a society, which can jeopardize collective actions and shared intentionality directed to- wards just foundations of a society. However, in regard to this point made by Hume, it is necessary that joint epistemic attitudes are not “limited largely to joint perceptual beliefs”, as Schmid rightly notice, because joint beliefs about human rights belongs “to non-perceptual or inferential beliefs” of a more com- plex kind, which need “some form of joint commitment” (Schmid 2012: 416). Thus, the other members of the group are considered to have normative reasons to stand in joint intentions under the obligations of protection and active promotion of human rights. As supporting elements of the structure of the new institutions, human rights, as the basic form of justice, would truly be normative in the sense of reason-giving and obligation-grounding. However, it would certainly be wrong to interpret all kinds of groups that are character- ized by shared collective intentionality14 as groups whose we-mode intention- ality is based on deep constitutional conventions, which can be justified only by reference to the moral normativity. Nevertheless, although the institution- al fact of ‘corporation’ could be interpreted as self-centered and not on moral norms established group – which is almost agonistic in facing the other groups in the same context of unity – it would still be wrong to view such groups as immoral communities that are characterized only by a legal normativity.15 Be- cause within these groups too it is necessary to have a certain moral code that maintains these groups in existence, and, perhaps most importantly, does not allow collective intentionality of the group to collapse due to mere selfish in- terests of individual members. Therefore, we think it can be argued that moral 13 For a discussion on Hume’s reconstruction of objectivity of justice and natural law ‘without debating moral realism’, cf. Westphal 2016. 14 In our project of social ontology, we discuss only groups that are built on the nor- mative and institutional network of mutual obligation, and leave out what we call nat- ural groups (family) or existential groups (happenings, movements, rallies, Occupy movement, etc.). 15 One of the authors has defended this position in one of his previous papers (cf. Jo- vanov 2015). Now he admits that it is clearly wrong if one allow the existence of purely immoral groups. CONSTITUTIVE JUSTICE AND HUmAN RIGHTS490 │ RASTKO JOVANOV / mARIJA VELINOV normativity and principles of justice are at least co-constitutive for the iden- tity and interests of any existing group. And this is true for human rights as well. Each member of any group that is formed on the legal and moral normativity as an integral part of the collec- tive intentionality expects that other members of the group act in accordance with the expected outcome, and of which the individual member of the group becomes aware when in her/his actions s/he takes the first-person plural per- spective. As a rational animal, to every human (provided that he is capable to autonomously, i.e. without the help of others, leads his activities in the society) belongs a feeling that he has the ‘right’ to certain rights: freedom of speech, not to be disturbed by others, the right on private property, etc. These funda- mental rights are implicit in the core of every we-mode intentionality, i.e. in the core of every existing social institutions (except in societies that are under the dictatorship of one group, for example, in the case of North Korea). And most importantly, they remain valid even if they are not immediately recog- nized. Because a human being is capable to, through forces of reason, but also on the basis of the level of civilization reached by modern states, judge whether human rights within some groups are threatened or not, i.e. to judge whether the existence of the group is still justified. Therefore, we believe that positive law should be responsive and reflect the just foundational conventions which must be the basis of each group.16 For, only in this way positive law could have introduced some of the basic human rights in the constitution as the highest legal institution. That means that law’s validity can only be correctly measured against the moral standards that are present and recognized. Accordingly, human rights can be recognized as universal because moral normativity is present in the basic and non-explicit conventions on which modern society is built. How- ever, if we consider human rights only from the legal-institutional manner as Searle do, the problem of universal obligations will remain reserved for mem- bers of one group only in which human rights are introduced into the positive legal institute. The problem of universal obligation for human beings as such, that human rights, by definition, require, cannot be resolved by any theory of social ontology if it fails to include into its considerations those deep conven- tions that precede each institution and whose normativity cannot be reduced to the legally understood norms. As a result, such social-ontological projects are forced to reject as irrelevant any issue of the rights that resist reduction to ‘game rules’. But they do not recognize at the same time the problem and the question: Do such rights constitute the ‘game’ as such? 16 The position we are advocating here is clearly directed at the current rigorous for- malization of rights (which is clearly visible in the structures of the EU), and it was not- ed by Weber when he described the law as a technological medium, which enforces so- cial order by strictly regulating interpersonal relations (Weber 1954: 63) ENGAGING INSTITUTIONS │ 491 References Alexy, Robert (2012), “Law, Morality, and the Existence of Human Rights”, Ratio Juris 25(1): 2–14. Beitz, Charles R. (2007), “Human Rights”, in R. E. Goodin, P. Pettit, T. W. M. Pogge (eds.), Companion to Contemporary Political Philosophy, Oxford: Blackwell, pp. 628–637. Bojanić, Petar (2015), “Taking the Human out of Human Rights”, Filozofija i društvo / Philosophy and Society 26(3): 703–709. Buchanan, Allen (2013), The Heart of Human Rights. New York: Oxford University Press. Coleman, Jules L. (2001), The Practice of Principle. Oxford: Oxford University Press. Corlett, Angelo J. (2016), “Searle on Human Rights”, Social Epistemology 30(4): 440–463. Fotion, Nick (2011), “Searle on Human Rights.” Analysis 71: 697–706. Hindriks Frank (2011), “Restructuring Searle’s Making the Social World”, Philosophy of the Social Sciences 43(3): 373–389. Hume, David (2000), A Treatise of Human Nature. Oxford: Oxford University Press. Jhering, Rudolph v. (1897), Die Jurisprudenz des täglichen Lebens. Eine Sammlung an Vorfälle des gewöhnlichen Lebens anknüpfender Rechtsfragen. 11. Auflage, Jena: Fischer. Jovanov, Rastko (2017), Hegel and National Socialism. Novi Sad: Akademska knjiga [forthcoming]. –. (2015), “Solidarität und Gruppenidentität: Mimesis, Gesetz, Kampf”, in H. Zaborowski, R. Jovanov, Ž. Radinković (eds.) Phänomenologische Ontologie des Sozialen, Belgrade: IFDT, pp. 116–136. Kelsen, Hans (1967), Pure Theory of Law. Berkeley: University of California Press. Lindahl, Hans (2013), Fault Lines of Globalization. Legal Order and the Politics of A-Legality. Oxford: Oxford University Press. Marković, Mihailo (1974), From Affluence to Praxis. Boston: Beacon. Marmor, Andrei (2006), “How Law is like Chess”, Legal Theory 12: 347–371. Murphey, John (1986), “Social Ontology and Responsive Law”, in J. Golden, J. Pilotta (eds.) Practical Reasoning in Human Affairs. Studies in Honor of Chaim Perelman, Dordrecht: Reidel, pp. 341–355. Nickel, James (2007), Making Sense of Human Right. Oxford: Blackwell. Perelman, Chaim (1980), Justice, Law, and Argument. Dordrecht: Reidel. Schmid, Hans Bernhard (2014), “Plural Self-Awareness”, Phenomenology and the Cognitive Sciences 13(1): 7–24. –. (2013), “Trying to Act Together: The Structure and Role of Trust in Joint Action”, in B. Kobow, H.B. Schmid and M. Schmitz (eds.), The Background of Social Reality: Philosophy of Sociality, Dordrecht: Springer, pp. 37–56. –. (2012), “Sharing in Truth: Phenomenology of Epistemic Commonality”, in Dan Zahavi (ed.), The Oxford Handbook of Contemporary Phenomenology, Oxford University Press, pp. 399–419. Searle, John (2010), Making the Social World. Oxford: Oxford University Press. –. (2001), Rationality in Action. Cambridge, MA: The MIT Press. –. (1995), The Construction of Social Reality. New York: Basic Books. Thompson, Michael J. (2017), “Collective Intentionality, Social Power and Reification”, Journal of Social Ontology 3(2): 207–229. Weber, Max (1954), Law in Economy and Society. Cambridge, MA: Harvard University Press. CONSTITUTIVE JUSTICE AND HUmAN RIGHTS492 │ RASTKO JOVANOV / mARIJA VELINOV Westphal, Kenneth R (2016), How Hume and Kant reconstruct natural Law. Justifying Strict Objectivity without Debating Moral Realism. Oxford: Clarendon Press. Zabel, Benno (2014), “Das Recht der Institutionen. Zu einer Kultur der Freiheit jenseits von Individualismus und Kollektivismus”, in B. Zabel, K. Sellmann (eds.) Autonomie und Normativität. Zu Hegels Rechtsphilosophie, Mohr: Tübingen. Zaibert, Leo and Barry Smith (2007), “The Varieties of Normativity: An Essay on Social Ontology”, in Savas L. Tsohatzidis (ed.) Intentional Acts and Institutional Facts: Essays on John Searle’s Social Ontology, Dordrecht: Springer, pp. 155–174. Rastko Jovanov Marija Velinov Konstitutivna pravda i ljudska prava Apstrakt Da bismo pokazali valjanost ovde predložene koncepcije socijalne ontologije i njene pred- nosti u odnosu na deskriptivne teorije društvene stvarnosti, koje u analizi socijalno-ontološ- kog statusa ljudskih prava nalaze samo pravno shvaćenu normativnost kao prisutnu u druš- tvenoj stvarnosti, na prvom mestu (1) iznosimo Serleovo tumačenje ljudskih prava. Zatim (2), uvodimo metodski pristup i osnovne pojmove našeg socijalno-ontološkog shvatanja i objaš- njavamo strukturu odnosa pravde, zakona, morala, društvenih institucija i kolektivne inten- cionalnosti. Te na kraju (3) pokazujemo na koji način ovde iznesena teorija socijalne ontolo- gije intuitivnije i sa opširnijim argumentima objašnjava ontološki status institucije ljudskih prava od Serlovog pravnog pozitivizma. Ključne reči: konstitutivna pravda, kolektivna intencionalnost, ljudska prava, socijalna onto- logija, Džon Serl 
work_rvqoprw7zncdxebrbal2xpiirq	----	Durham Research Online Deposited in DRO: 02 November 2009 Version of attached �le: Accepted Version Peer-review status of attached �le: Peer-reviewed Citation for published item: Bickersta�, K. and Bulkeley, H. and Painter, J. (2009) 'Symposium : justice, nature and the city.', International journal of urban and regional research., 33 (3). pp. 591-600. Further information on publisher's website: http://dx.doi.org/10.1111/j.1468-2427.2009.00858.x Publisher's copyright statement: Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro�t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 https://dro.dur.ac.uk https://www.dur.ac.uk http://dx.doi.org/10.1111/j.1468-2427.2009.00858.x http://dro.dur.ac.uk/6098/ https://dro.dur.ac.uk/policies/usepolicy.pdf https://dro.dur.ac.uk 1 Symposium on Justice, Nature and the City Karen Bickerstaff, Harriet Bulkeley and Joe Painter Rationale In his 1996 work, Justice, Nature and the Geography of Difference (JNGD), David Harvey brought together a series of debates – including those concerning environmental values, the politics of social and environmental justice, and the future of cities - which are rarely articulated within the same analytical framework. Harvey‟s work established foundational concepts for understanding how space, time, place and nature are constituted and represented through social practices - not as separate elements but in relation to each other. JNGD called for „critical ways to think about how differences in ecological, cultural, economic, political, and social conditions get produced … and we also need ways to evaluate the justice / injustice of the differences so produced‟ (1996: 5). Crucially, for our purposes, Harvey highlights the production of geographical differences as fundamental to the exploration, and indeed resolution, of contemporary urban problems. A decade later, and taking Harvey‟s work as a starting point, this IJURR symposium - which emerges from a session at the 2006 meeting of the RGS-IBG - examines how concepts of justice and nature in urban places are being constructed, reworked and contested - and the extent to which common ground between concerns for social and environmental justice can and is being forged in the city. While concerns for social justice and the social life of cities have long been a mainstay of geographical work, the linking of environmentalism to problems of the city and associated processes of urbanization remains a relatively underdeveloped arena of geographical inquiry (Schweitzer and Stephenson Jr., 2007). Indeed, in 1996 Harvey referred to the integration of the urbanization question into the environmental- ecological question as a sine qua non for the twenty-first century (429). The relative neglect of such work is perhaps more surprising given that it is in urban areas where transformations of nature are most visible – both in physical expression and in socio-ecological consequences (Swyngedouw and Heynen, 2003) – and which are becoming increasingly important strategic sites for an array of different forms of environmentalism (White and Wilbert, 2006). Issues of 2 urban political ecologies and environmental inequalities have only recently begun to gain analytical purchase (e.g. Heynen et al., 2006; Keil, 2003; Walker and Bulkeley, 2006). Keil (2003), for instance, has identified four „strongholds‟ of the emerging Urban Political Ecology (UPE) project – an exercise which, although carrying the perils of any such categorisation, does usefully describe this body of work and the central issues and challenges being tackled around the concerns of justice, nature and urban life that we return to below. The first of these strongholds consists of work focused on the political ecology of the Los Angeles / Southern Californian region. Los Angeles, with its volatile and violent environment, has captured the imagination of many urban writers (Keil, 2003: 731) - with authors (such as Davis, 1998; Wolch, Pincentl and Pulido, 2002; Gottlieb, 2001; Walker 2007) offering rich accounts of the history and geography of LA‟s socionatural environment(s) and through these recasting the way we see the (South Californian) urban landscape. The second body of work, particularly influenced by the work of Erik Swyngedouw, has two primary, and related, interests: i) the articulation of a Marxist theorisation of UPE (Swyngedouw et al., 2002; Kaïka and Swyngedouw, 2000; Castro et al., 2003) and ii) the political ecology of urban water – how, through water, nature and society are tied in the production of a sociospatial fabric that privileges some and excludes many (Swyngedouw, 1997: 329). Work in the latter field - now marked by its geographical breadth, covering many cities of the global South as well as North - includes Swyngedouw (1997; 2004) on hydrological modernisation in Guayaquil, Ecuador; Bond (2002) on water resource management in Johannesburg and residual apartheid ecologies; Gandy (2008) on the particularities of capitalist urbanisation and state formation in India, which have given rise to Mumbai‟s current water infrastructure crisis; and Castro (2004), Loftus (2007) and Bakker (2007) on the consequences (for Mexico City, Durban, and Jakarta respectively) of neoliberal policies, based on the commodification of water resources, for exacerbating existing conflicts and inequalities. A third body of research (originating predominantly from the UK) is directed at a critical engagement with urban and regional environmental and economic policy, including discussion on the political ecological complexities of ”local sustainability” (e.g. Gibbs and Jonas, 2000). Finally, the work of a group (predominantly US and UK based) concerned with the UPE of environmental justice (e.g. Agyeman, Bullard and Evans, 2003; Agyeman, 2005; Sze, 2007) addresses issues of 3 sustainability, justice and the discourse on rights and democracy. Taking our lead from such work, this collection of papers will address and debate the everyday urban nature(s) of environmental in/justice (which have often evaded sustained inquiry), the fundamentally spatial and political basis to claims of injustice and the implications of this work for developing socio-ecologically „just‟ cities. The concept of environmental justice (EJ) is a useful starting point for exploring this nexus of ideas: it is a term that captures the differential exposure to environmental bads and access to environmental goods experienced by different social groups (Schweitzer and Stephenson Jr., 2007). Sociologist Robert Bullard was one of the first academics to study the relationship between the location of hazardous sites and the social characteristics of nearby communities. He found that virtually all landfills in Houston, Texas were located in or near African American neighbourhoods (Bullard, 1983). Many studies followed his initial work – all highlighting the socio-spatial inequities inherent in urban environments and citing practices of urban segregation and housing discrimination as direct contributors to environmental injustice (for an overview see Szaz and Meuser, 1997). The concern of EJ research and activism with the consequences of environmental hazards for marginalised communities brings together questions of social and ecological justice, and in doing so expands our understanding of the „environment‟ – away from unspoiled „natural‟ areas to include populated urban spaces (Schweitzer and Stephenson Jr., 2007). In this way, EJ work has succeeding in making issues of race, class, culture and gender integral to the discourse and politics of environmentalism, as well as highlighting the ways in which physical environments can affect the quality of life of those who reside in urban places. Other authors have raised concerns about this body of work and the implicit constructions of „urban‟, „nature‟ and „justice‟ contained within it – issues that run through this introduction and the subsequent papers. Firstly, attention needs to be paid to the ways in which EJ is defined. Here, we must recall that much EJ work has been framed by the specifics of the environmental justice movement in the US (Walker and Bulkeley, 2006). Although the terminology of environmental justice has travelled well beyond the States (for instance Debbané and Keil, 2004; Walker and Bulkeley, 2006) its meaning has remained problematic and heavily contested. In generalised terms we can see EJ either as being closely tied to the movement‟s origins and a focus on the 4 socio-spatial distribution of pollution, toxicity and other forms of socio-ecological harm or as being linked to a more encompassing (and perhaps even indiscriminate) set of concerns or principles associated with the multiple sites, forms and processes of injustice – articulated in particular through a sustainability lens (Walker and Bulkeley, 2006; Agyeman, 2002). Related to this point, we see something of a conflation of environmental and social justice issues, leading many to argue (some would suggest mistakenly) that the solution to the latter is a necessary prerequisite to any attempt to address the former. Whilst the relative lack of agreement and specificity in the terminology and principles of EJ genuinely offers a level of flexibility – and as such a powerful rhetorical resource – it has arguably limited the concept‟s power as a guide to policy and action. It is a tension between the need to keep things open and fluid – to allow for particularity - and the need to make them solid and categorical - that is, to universalize - that Harvey (1996) himself grapples with. He asks whether it is possible „ever to talk about justice as anything other than a contested effect of power within a particular place at a given time' (Ibid, 329) but simultaneously recognizes justice as „a foundational concept that is quite indispensable in the regulation of human affairs' (Ibid, 332). It is precisely these sorts of conceptual ambiguities that have led authors such as Debbané and Keil (2004), developing a critical engagement with urban environmental policy, to reject the search for a universal notion of environmental justice - instead advocating an understanding that is contextually situated. It is a position which acknowledges the far- reaching political, economic and ecological networks that create specific instances of environmental injustice, and is one with which we are broadly sympathetic in this symposium. The second set of issues raised, and linked to the conceptual underpinnings of environmental justice work, rest on the fact that whilst urban environments have been (and continue to be) the focus of much EJ activism and research, few studies have been situated within the larger context of urbanisation and urban research (for an exception see Sze 2007 on New York City). In this respect, a number of authors, many working within what Keil (2003) describes as a Marxist UPE tradition (e.g. Heynen et al., 2006) have been critical of environmental (justice) theory for (largely) ignoring the urban political ecologies that influence many environmental problems. The praxis concerns of environmental justice research can be traced in a literature that remains rooted in local political activism and distributional issues to 5 the relative neglect of theoretical engagement with the historical structural processes leading to uneven urban environments (Heynen, 2006: 501). Lines of critical research, addressing the UPE of environmental justice, have emerged and are becoming more established (see Pellow and Brulle, 2006; Agyeman et al., 2003; Pulido, 2000). Sze (2007: 9), in a finely- grained history of environmental justice in New York City, argues that the rise of activism is crucially a racialised and local response to the „the politics of neoliberalism‟ - economic and development policies that favour deregulation, privatization, and free market approaches - currently shaping the urban ecology of postindustrial global cities. Her focus on the histories and effects of particular urban policies for affected communities in terms of their racial and community identity, eschews narrow debate over “race versus class” and overt discriminatory intent (cf. Pulido, 2000). Notwithstanding such examples in the literature, there remains a rather diminished conceptualisation of the socio-ecological and fundamentally political processes that generate environmental and social injustices in urban spaces. The symposium therefore provides an important contribution to this work, and prompts a stronger engagement between EJ research and many of the conceptual questions - centring on politics, social power, institutional configurations, discourses and belief systems - that drive UPE. Swyngedouw (this issue), for instance, is particularly concerned to theorise the „political‟ as a fundamental condition for addressing questions of urban environmental injustice. We might add that the issue of scale in the production and identification of in/justice is far from comprehensively addressed in environmental justice research (for some important exceptions see: Heynen, 2003; Debbané and Keil, 2004; Towers, 2000). Indeed, this is a topic that a number of authors in this symposium address. Scale is central to Hillier‟s account of the folded, networked spaces – the connections of presence and absence – which constitute a singular form of „just‟ (or unjust) decision in the context of planning processes (taking the example of debate around the so-called ghost ships of Hartlepool, North-East England), and to Whitehead‟s exploration of the ordinary environmental injustices produced by a large scale urban forest. Thirdly, in empirical terms, the focus of the environmental justice movement and the wider research literature has been on particular kinds of pollution – toxics, dangerous contamination and the effects of major environmental hazards such as Hurricane Katrina in 6 2005 – relying heavily upon symbolic politics and powerful media icons of pollution and disaster (Harvey, 1996). The consequence, we would suggest, is a relative neglect of more mundane and chronic forms of injustice manifest in the urban environment. It is a form of bias in the choice of targets that has led some critics to charge that the concerns of the movement are misplaced, that its politics are based on an iconography and politics of fear, and that its claims have more to do with moral outrage than the science of impacts (Harvey, 1996: 338) Returning to the urban, Heynen (2006) comments on the relative absence of the issue of access to natural resources in the environmental justice literature – which he argues is a common injustice for marginalized urban populations. Whitehead (this issue) similarly calls for a move away from the environmentalism embodied by much of the EJ literature, which he argues leads to a narrow framing of the spaces of urban environmental injustice in terms of the dramatic and spectacular. Although there is work that goes some way to responding to this characterisation in the US (Brownlow, 2006; Heynen, 2003) and in the UK - where we arguably see a stronger research focus on the everyday features of urban landscapes (Stephens et al., 2001; Lucas et al., 2004) - there remains a persistent absence of engagement with the mundane and banal landscapes of in/justice. This is a challenge that is taken up very directly by authors in this symposium. Whitehead and Dooling, in particular, seek to refocus attention on ordinary forms of socio-ecological in/justice in their accounts of access to different kinds of urban nature. In seeking to address these issues, the papers in this symposium bring together research from very different social, historical, political and ecological settings. In this regard, the collection offers a timely insight into the processes, practices and relations by which socio-ecological in/justice is produced, mobilised and contested. Although the collection discusses only the developed world, it does bring together a varied scholarship that focuses on the social and ecological facets of urban environmental in/justice. The papers offer a range of novel theoretical frameworks for rethinking and extending our understanding of socio-ecological justice in urban places. In so doing, the authors raise and seek to address some profoundly important questions about the social and material production of environmental in/justices, as well as the politics and governance of socio-ecological harm 7 across different spaces, places, scales and times. In the remaining sections of this introduction we explore three overarching themes – on the theorisation, hybridity and spatial politics of socio-ecological in/justice - that run through the contributions to this collection, and consider their implications for arguments about the relationships between justice, nature and the city. Theorising socio-ecological in/justice and the city Authors in this collection are concerned to engage, critically, with the ways in which contemporary environmental injustices are produced, identified and addressed within distinctly metropolitan contexts. Each paper develops different, in many cases situated, notions of nature, justice and the urban (also Debbané and Keil, 2004). Swyngedouw, taking the cue of political philosophers and theorists like Žižek, Rancière and Badiou, amongst others, approaches the necessary conditions for tackling questions of urban socio-ecological injustice through the theoretical lens of the „properly political‟. Here, he stresses the need for a move away from a condition of environmental polic(y)ing (or a mode of consensus policy-making where disruption and dissent are minimized) to an environmental politics that enables articulation of (and engagement with) radical dissent and rupture. Dooling uses Agamben's notion of bare life to explore the disconnection between notions of home articulated by homeless people living in Seattle‟s green spaces and the ideological constructions of home, homeless and public green space espoused by planning agencies and (housed) citizens. She uses this analysis to propose the concept of ecological gentrification, which is explicit in its recognition of the tensions between goals of ecological and social justice. The concept captures the ways in which planning agendas linked to green spaces can lead to the displacement or exclusion of the most economically vulnerable human population – homeless people – whilst simultaneously espousing an environmental ethic. Hillier offers a distinctly relational approach to theorising socio-ecological justice through a Deleuzo-Guattarian cartography which traces the assemblies, multiplicities and trajectories through which dismantling the 'ghost' ships in Hartlepool (UK) was constructed and contested as an issue of social and ecological injustice. Finally, in an analysis of ordinary environmental 8 injustice in the Black Country Urban Forest (located in a wider – UK - region marked by a high level of urban dereliction), Whitehead, drawing on a Lefebvre-inspired interpretation of everyday life and banality, addresses the assumed connection between urban ecological improvement and the achievement of social and environmental justice goals. Like Hillier, he stresses the often problematic mobilisation of concepts of urban social and ecological injustice – which, he suggests, can unwittingly militate against the more everyday concerns of ordinary environmental justice. In each of these papers, an engagement with novel theoretical approaches for understanding socio-ecological in/justice raises questions about how we conceptualise nature, the city, the subject, and various facets of justice, including rights and responsibilities. The collection demonstrates the rich potential for taking the study of EJ beyond the confines of existing analyses of struggles over the distribution of environmental goods and bads, and in particular the significance of thinking about in/justice in terms of a „more complex ethical field of inter-material relations‟ (Whitehead, this issue). Hybrid urban environments / environmental justices: Terms like „nature‟ and „environment‟ are, of course, inherently contingent and need to be situated within the wider set of conditions and relations that give rise to them. Harvey (1996: 119), points to a pervasive anti-urban bias in much ecological rhetoric – citing the essentially arbitrary distinction made between the built environments of cities (as un-natural) and the humanly modified environments of rural regions (as natural). In this vein he talks about New York City as a „created ecosystem‟ – stressing that human activity cannot be read as external to ecological processes. Indeed, environmental issues have emerged that are specific to the ecologies of urban places (Ibid: 186). The corollary to this, in the context of geography‟s engagement with nature and the environment, is the now widespread recognition of (urban) natures as simultaneously socially and materially produced (Heynen et al., 2006; Braun and Castree, 1998; Castree, 2005; Gandy, 2002; Harvey, 1996; Keil, 2003; Swyngedouw, 1999). Debate has therefore moved away from the interaction of nature and society towards an approach that recognises that society is constituted through the 9 transformation of nature and that nature is equally constituted through social change and social labour (Heynen et al., 2006). As a consequence, it is no longer possible, as the authors in this symposium make clear, to talk about the urban and the natural as antagonists. In this regard, one of the key insights shared by urban political ecologists, and by the authors in this collection, is that „the material and symbolic, the natural and the cultural, the pristine and the urban are not dual and separate realities but rather intertwined and inseparable aspects of the world we inhabit‟ (Keil, 2003: 728). In a similar vein, Swyngedouw (2006) argues for the use of metaphors of the metabolism and circulation of nature, developing ideas of Haraway and Latour on cyborgs and „hybridity‟ to politicize processes of urbanisation in a fashion that is complementary to political projects of socio-ecological justice. The papers in the collection work to decentre universal assumptions about (urban) nature and justice and offer more complex understandings which interweave social and material processes. In Whitehead‟s discussion of the West Midlands‟ Black Country area and the high levels of land dereliction in this region - a legacy of long-term industrial decline - ordinary injustices are not simply a product of the concentration of unwanted environmental externalities. Rather, „ordinary injustice is produced at the intersection of these two processes‟ (Whitehead, this issue). The authors in this collection demonstrate how the hybridity of socio-ecologies demands not only analytical perspectives which are sensitive to the substance of nature as integral to social, economic and political processes, but also an understanding of the diversity of possible relations. The recognition of hybridity also destabilises the taken for granted boundaries around which in/justice is thought to accrue. Dooling makes this point very effectively in her analysis of the use of notions of home articulated by homeless individuals in urban green spaces – arguing that it is only in „conceptualizing green spaces as complex habitats for non-human and human inhabitants, that the narrow conceptions of home implicit in the design and management of shelter and housing options are challenged‟. Hillier calls for „relational ontologies of social and environmental justice which turn from traditional ontologies of individual, bounded subjects … to recognize that residents and birds alike are enmeshed in far broader space-time relations ‟. Such insights offer food for thought for mainstream EJ work concerned with the risks and 10 rights of individual subjects, suggesting that as we recognise the hybridity of socio-ecological processes, there is a need to embrace more relational ways of thinking about justice. The spatial politics of urban environmental justice: Our final theme places the political at the centre of contemporary debates on justice, nature and the city. Political ecologists have been successful in linking politics and economics to the production of environmental degradation, poverty, marginality and vulnerability in the city (Robbins et al., 2001; Swyngedouw et al., 2002; Wolch, 2007; Gibbs, 2002) – drawing out the power relations (whether material or discursive, economic, political, or cultural) through which particular socio-ecological conditions are produced and maintained. In Heat Wave, for instance, Eric Klinenberg (2002) takes us inside the anatomy of the Chicago metropolis to conduct what he calls a "social autopsy" of the 1995 heat wave linked to a staggering 739 deaths, particularly among the poor, elderly and reclusive. He examines the social, political, and institutional organs of the city that made this urban disaster worse than it ought to have been – and meant that some neighbourhoods experienced greater mortality than others. Critically, redundant but fragmented city support services catered to the most vocal, proactive, consumers - thereby ensuring neglect of the generally reticent elderly and infirm who led insular lives in a "culture of fear". Social injustices were in this way structurally built into the fabric of the city. It follows from such work that we cannot neatly define a city or urban place as un/just per se. Hurricane Katrina, which in 2005 hit Southern states in the US, and specifically the city of New Orleans, speaks to the social power relations underpinning such urban ecological disasters and how they are collectively understood – with the social segregation of the city centre, the suburbs and surrounding towns particularly significant in shaping the differential impact of the hurricane on rich and poor (Rydin, 2006: 4; Bakker, 2005). The crisis also raised distinctly political questions about how authorities permitted development in vulnerable locations – and about the trade-offs between the ecological and economic benefits of wetland environments. Whilst Hurricane Katrina, and the political response, prompted intense debate around a host of local planning and governance questions, it also touched on decision 11 making, and the inadequacies of leadership at much higher political levels. The ensuing `blame game', centring on individual incompetence, arguably distracted debate from more fundamental questions about the role of the state, and of markets, in producing `natural' disasters that are fundamentally inequitable in their socio-ecological impacts (Bakker, 2005: 798; Braun and McCarthy, 2005). In a similar vein, for Peck (2006: 693), the dominant political narrative that located blame for the disaster in federal bureaucracy and the long term consequences of urban welfarism (reflected in a discourse of personal responsibility and culpability, displacing an earlier emphasis on victimisation) legitimated a renewal programme for New Orleans embodying a new urban agenda of enlarging the role for private enterprise, selective institutional roll-backs focused on the social state, redoubled crime control and an interventionist program of “moral reconstruction” aimed at those stranded in the storm‟s wake. Katrina is thus a case which speaks very directly to what we might term an ethical imperative of rights and responsibility: that is, how parties in political and civic life construct their social and ecological obligations in relation to the pursuit of the just city (Peck, 2006; Rydin, 2006; Agyeman et al., 2003) and what it actually means (and who is able) to be an urban ecological citizen (Wolch, 2007). It is a set of ethical issues that a number of authors in this collection address. Whitehead, for instance, considers how notions of environmental neglect challenge ideal-type ethical discourses of social responsibility – that is, how the issue of neglect frames a sense of obligation not just in terms of visible harm but also in terms of the consequences of inaction or lack of care that impinge on the everyday. Hiller considers how responsibilities for distant strangers – in the shape of the ship-breakers of South Asia – became entangled with socio-ecological in/justice in Hartlepool as the conflict over the Ghost Ships was enacted. There are, then, no neat boundaries around what constitutes „urban‟ in/justice, and, indeed, the spatial politics through which such conflicts are framed can have profound consequences for how they are contested and resolved. The authors also consider different forms of (post) political response to urban natures and claims of environmental injustice. Swyngedouw presents a radical re-interpretation of urban environmental politics and considers the consequences of a post-political condition for discussions of environmental justice, equality and democracy. He is particularly critical of a neo-liberal vision of environmental governance, a reliance on expert knowledge and 12 administration and what he terms populist environmentalism (in particular through forms of participatory deliberative practice), which he sees as supporting the established social order and restricting scope for debate, disagreement and dissensus - in short, politics proper. Hillier speaks to these same issues and processes in her analysis of the „consensual‟ policy- making surrounding the Hartlepool ghost ships. This is a challenging insight for scholars of EJ for it requires a move beyond seeking to open up the channels of decision-making to „just‟ processes of involvement, and rather a recognition of the need to work against and outside current modes of environmental governance in order to properly confront the distinctly political causes of in/justice. Other authors in this collection follow this line of thinking to some degree by challenging the dominant framing of environmental injustice in terms of extreme exploitation of urban nature(s) and urging instead a stronger theoretical and political engagement with the (more) ordinary or banal meanings and spaces of urban in/justice – “that expand and insinuate themselves largely below the radar” (Robbins and Sharp, 2006: 111, also Whitehead, this issue). Such a strategy entails engagement with alternative political spaces where in/justice is contested and configured. Dooling argues that homelessness is a deeply political problem tied closely to the exercise of sovereign power (delivered through policymakers, providers and law enforcement). She offers an account of the ways in which multiple strategies of being-at-home, practised by homeless individuals in the urban green spaces of Seattle, challenged the dominant political construction of ecological justice or gentrification - one which sustained the displacement and exclusion of homeless individuals from urban natures and indeed from policymaking. Tying in with Swyngedouw‟s analysis of depoliticised environments that fail to seriously tackle questions of urban environmental justice, it is in precisely these spaces of urban nature that our authors argue for, and begin to sketch out, an alternative environmental politics that is built upon a political “space of contestation for those who have no name or no place” (Swyngedouw, this issue). 13 References Agyeman, J. (2005) Sustainable Communities and the Challenge of Environmental Justice. NYU Press, New York. Agyeman, J., R. Bullard and R. Evans (2003) Just sustainabilities: development in an unequal world. The MIT Press, Cambridge, MA. Agyeman, J. (2002) Constructing environmental (in)justice: transatlantic tales. Environmental Politics 11, 31-53. Bakker, K. (2005) Trickle Down? Private sector participation and the pro-poor water supply debate in Jakarta, Indonesia. Geoforum 38, 855-868 . Bakker, K. (2005) Katrina: the public transcript of „disaster‟. Environment and Planning D: Society and Space 23, 795-802. Braun, B., and J. McCarthy J (2005) Hurricane Katrina and abandoned being. Environment and Planning D: Society and Space 23, 802 – 809 Bond, P. (2002) Unsustainable South Africa: environment, development and social protest. Merlin Press, London Braun, B., and N. Castree (1998) Remaking reality: nature at the millennium. Routledge, London. Brownlow, A. (2006) Inherited fragmentations and narratives of environmental control in entrepreneurial Philadelphia. In N. Heynen, M. Kaika and E. Swyngedouw (eds.), In the 14 Nature of Cities: Urban Political Ecology and the politics of urban metabolism, Routledge, Abingdon, Oxon. Bullard, R. (1983) Solid waste sites and the Houston black community. Sociological Inquiry 53, 273-88. Castree, N. (2005) Nature. Routledge, London Castro, J.E. (2004) Urban water and the politics of citizenship: the case of the Mexico City Metropolitan Area during the 1980s and 1990s. Environment and Planning A, 327-346. Castro, E., M. Kaika, and E. Swyngedouw (2003) Water for cities: A political-ecology perspective - London, UK: structural continuities and institutional change in water management. European Planning Studies, 11, 283–295. Davis, M. (1998) Ecology of Fear: Los Angeles and the Imagination of Disaster. Metropolitan Books, New York. Debbané, A. and R. Keil (2004) Multiple disconnections: environmental justice and urban water in Canada and South Africa. Space and Polity 8, 209-225 Dobson, A. (1998) Justice and the environment: conceptions of environmental sustainability and dimensions of social justice. Oxford University Press, Oxford. Gandy, M. (2008) Landscapes of disaster: water, modernity, and urban fragmentation in Mumbai. Environment and Planning A 40, 108-130. Gandy, M. (2002) Concrete and clay: reworking nature in New York City. The MIT Press, Cambridge, MA 15 Gibbs, D. and A. Jonas (2000) Governance and regulation in local environmental policy:The utility of a regime approach. Geoforum 31, 299–313. Gibbs, D. (2002) Local Economic Development and the Environment. Routledge. London. Gottlieb, R. (2001) Environmentalism Unbound: Exploring New Pathways for Change. MIT: Cambridge, MA. Harvey, D. (1996) Justice, nature and the geography of difference. Blackwell Publishers, Oxford. Heynen, N.C. (2003) The scalar production of injustice within the urban forest. Antipode 35, 980-998. Heynen N. (2006) Green urban political ecologies: toward a better understanding of inner-city environmental change. Environment and Planning A 38, 499-516 Heynen, N., M. Kaika and E. Swyngedouw (eds.) In the nature of cities: urban political ecology and the politics of urban metabolism. Routledge, Abingdon, Oxon. Keil, R. (2003) Progress report: Urban Political Ecology. Urban Geography 24, 723-738. Klinenberg, E. (2002) Heat Wave: A Social Autopsy of Disaster in Chicago. University of Chicago Press, Chicago. Loftus, A. (2007) Working the socio-natural relations of the urban waterscape. International Journal of Urban and Regional Research 31, 41-59. 16 Lucas, K., G. Walker, M. Eames, H. Fay and M. Poustie (2004) Environment and social justice: rapid research and evidence review. Sustainable Development Research Network, Policy Studies Institute, London. Peck, J. (2006) Liberating the city: between New York and New Orleans. Urban Geography 27, 681-713. Pellow, D.N., R.J. Brulle (2005) Power, Justice and the Environment: A critical appraisal of the Environmental Justice Movement. MIT Press, Cambridge, MA. Pulido, L. (2000) Rethinking environmental racism: white privilege and urban development in Southern California. Annals of the Association of American Geographers 90, 12-40. Robbins, P., and J. Sharp (2006) Turfgrass subjects: the political economy of urban monoculture. In N. Heynen, M. Kaika and E. Swyngedouw (eds.), In the Nature of Cities: Urban Political Ecology and the politics of urban metabolism, Routledge, Abingdon, Oxon. Robbins, P., A, Polderman and T. Birkenholtz (2001) An ecology of the city. Cities 18, 369- 380. Rydin, Y. (2006) Editorial: Justice and the geography of Hurricane Katrina. Geoforum 37, 4-6. Schweitzer, L. and M. Stephenson Jr. (2007) Right answers, wrong questions: environmental justice as urban research. Urban Studies 44, 319-337 Stephens, C., S., S. Bullock and S. Scott (2001) Environmental justice: rights and means to a healthy environment for all. Special Briefing Paper 7, ESRC Global Environmental Change Programme. 17 Swyngedouw, E. (2006) Metabolic urbanization: the making of cyborg cities. In N. Heynen, M. Kaika and E. Swyngedouw (eds.), In the Nature of Cities: Urban Political Ecology and the politics of urban metabolism, Routledge, Abingdon, Oxon. Swyngedouw, E. (2004) Power, nature, and the city. The conquest of water and the political ecology of urbanization in Guayaquil, Ecuador: 1880-1990. Environment and Planning A 29, 311-332. Swyngedouw, E. (1997) Social Power and the Urbanization of Water. Oxford University Press, Oxford. Swyngedouw, E., M, Kaika and E. Castro (2002) Urban water: a political-ecology perspective. Built Environment 28, 124-137. Swyngedouw, E. and N.C. Heynen (2003) Urban political ecology, justice and the politics of scale. Antipode 35, 898-918. Szaz, A. and M. Meuser (1997) Environmental inequalities: literature review and proposals for new directions in research and theory. Current Sociology 45, 99-120. Sze, J. (1997) Noxious New York: The Racial Politics of Urban Health and Environmental Justice. MIT Press: Cambridge, MA. Towers, G. (2000) Applying the political geography of scale: grassroots strategies and environmental justice. Professional Geographer 52, 23-36. US General Accounting office (1983) Siting of hazardous waste landfills and their correlation with racial and economic status of surrounding communities. Government Printing Office, Washington DC. 18 Walker, R.A. (2007) The Country in the City: The Greening of the San Francisco Bay Area. University of Washington Press, Seattle, WA. Walker, G. and H. Bulkeley (2006) Editorial: geographies of environmental justice. Geoforum 37, 655-659. White, D. and C. Wilbert (2006) Introduction: technonatural time-spaces. Science as Culture 15, 95-104 Wolch, J. (2007) Green Urban Worlds. Annals of the Association of American Geographers 97, 373–384 Wolch, J., Pincetl, S., and L. Pulido (2002) Urban nature and the nature of urbanism. In M. J. Dear (ed.) From Chicago to L.A.: Making Sense of Urban Theory. Thousand Oaks, CA: Sage, 367–402. 
work_rwvold3cjnd7nm34p7rf7knkvm	----	[PDF] Framing Justice: Using the Concept of Procedural Justice to Advance Political Communication Research | Semantic Scholar Skip to search formSkip to main content> Semantic Scholar's Logo Search Sign InCreate Free Account You are currently offline. Some features of the site may not work correctly. DOI:10.1111/J.1468-2885.2005.TB00342.X Corpus ID: 54027781Framing Justice: Using the Concept of Procedural Justice to Advance Political Communication Research @article{Besley2005FramingJU, title={Framing Justice: Using the Concept of Procedural Justice to Advance Political Communication Research}, author={J. Besley and K. McComas}, journal={Communication Theory}, year={2005}, volume={15}, pages={414-436} } J. Besley, K. McComas Published 2005 Sociology Communication Theory Efforts aimed at increasing civic-mindedness must consider both what encourages and what discourages political engagement. Procedural justice argues that individuals care about the fairness of decision-making or deliberative procedures beyond whether the outcome of any future decision goes in their preferred direction. In turn, perceptions of procedural fairness influence participant satisfaction, commitment to the organization, perceived legitimacy of authorities, and willingness to volunteer… Expand View via Publisher cmapspublic2.ihmc.us Save to Library Create Alert Cite Launch Research Feed Share This Paper 44 CitationsHighly Influential Citations 6 Background Citations 18 Methods Citations 3 Results Citations 1 View All Figures from this paper figure 1 44 Citations Citation Type Citation Type All Types Cites Results Cites Methods Cites Background Has PDF Publication Type Author More Filters More Filters Filters Sort by Relevance Sort by Most Influenced Papers Sort by Citation Count Sort by Recency Perceived Procedural Fairness in Deliberation W. Zhang Psychology, Computer Science Commun. Res. 2015 4 Highly Influenced View 5 excerpts, cites background Save Alert Research Feed Perceived Procedural Fairness in Deliberation : Predictors and Effects W. Zhang 2012 19 Highly Influenced PDF View 5 excerpts, cites background Save Alert Research Feed Testing the procedural justice model of legal socialization: Expanding beyond the legal world Rick Trinkner Sociology 2012 5 Save Alert Research Feed REPORTING ON FAIRNESS IN CIVIC LIFE J. Besley, K. McComas Sociology 2007 16 View 1 excerpt, cites background Save Alert Research Feed Public Engagement and the Impact of Fairness Perceptions on Decision Favorability and Acceptance J. Besley Psychology 2010 80 Save Alert Research Feed Assessing the Difference Critique of Deliberation: Gender, Emotion, and the Jury Experience Andrea A. Hickerson, John Gastil Psychology 2008 41 Save Alert Research Feed Does fairness matter in the context of anger about nuclear energy decision making? J. Besley Psychology, Medicine Risk analysis : an official publication of the Society for Risk Analysis 2012 39 Save Alert Research Feed The interaction between perceived procedural fairness and perceived disagreement in deliberation W. Zhang, T. Yang 2020 Save Alert Research Feed The relationship between justice and acceptance of energy transition costs in the UK Darrick Evensen, C. Demski, Sarah Becker, N. Pidgeon Business 2018 18 PDF Save Alert Research Feed Media use and the Perceived Justice of Local Science Authorities J. Besley, K. McComas, Leah Waks Sociology 2006 21 Save Alert Research Feed ... 1 2 3 4 5 ... References SHOWING 1-10 OF 121 REFERENCES SORT BYRelevance Most Influenced Papers Recency Beyond Confused Noise: Ideas Toward Communicative Procedural Justice J. Hillier Sociology 1998 49 View 2 excerpts, references background Save Alert Research Feed Psychological models of the justice motive: Antecedents of distributive and procedural justice. T. Tyler Psychology 1994 779 View 2 excerpts, references background and results Save Alert Research Feed Understanding Judgments of Fairness in a Real-World Political Context: A Test of the Value Protection Model of Justice Reasoning L. Skitka, E. Mullen Psychology 2002 172 PDF Save Alert Research Feed Justice at the millennium: a meta-analytic review of 25 years of organizational justice research. J. Colquitt, D. E. Conlon, M. J. Wesson, C. O. Porter, K. Ng Psychology, Medicine The Journal of applied psychology 2001 4,523 Highly Influential PDF View 3 excerpts, references background Save Alert Research Feed Collective restraint in social dilemmas: Procedural justice and social identification effects on support for authorities. T. Tyler, P. Degoey Psychology 1995 493 View 1 excerpt, references results Save Alert Research Feed Procedural Justice Theory and Evaluations of the Lawmaking Process A. Gangl Political Science 2003 81 View 2 excerpts, references background Save Alert Research Feed The Influence of Perceived Injustice on the Endorsement of Political Leaders1 T. Tyler, K. Rasinski, K. Mcgraw Psychology 1985 254 Save Alert Research Feed Toward understanding why fairness matters: the influence of mortality salience on reactions to procedural fairness. K. P. van den bos, J. Miedema Psychology, Medicine Journal of personality and social psychology 2000 227 PDF View 1 excerpt, references background Save Alert Research Feed Procedural Justice and Participation R. Cohen Economics 1985 127 Save Alert Research Feed Understanding why the justice of group procedures matters: A test of the psychological dynamics of the group-value model. T. Tyler, P. Degoey, H. Smith Psychology 1996 766 Highly Influential View 4 excerpts, references background and results Save Alert Research Feed ... 1 2 3 4 5 ... Related Papers Abstract Figures 44 Citations 121 References Related Papers Stay Connected With Semantic Scholar Sign Up About Semantic Scholar Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. Learn More → Resources DatasetsSupp.aiAPIOpen Corpus Organization About UsResearchPublishing PartnersData Partners   FAQContact Proudly built by AI2 with the help of our Collaborators Terms of Service•Privacy Policy The Allen Institute for AI By clicking accept or continuing to use the site, you agree to the terms outlined in our Privacy Policy, Terms of Service, and Dataset License ACCEPT & CONTINUE 
work_rygnb22qyrb3pngahc6s35wmce	----	International Tax and Global Justice Tsilly Dagan* Inequality, as well as the scope of the duty of justice to reduce it, has always been a central concern of political justice. Income taxation has been seen as a key tool for redistribution and the state was the arena for discussions of justice. Globalization and the tax competition it fosters among states change the context for the discussion of distributive justice. Given the state’s fading coercive power in taxation and the decreasing power of its citizenry to co-author its collective will due to global competition, we can no longer assume that justice can be realized within the parameters of the state. International tax policy in an effort to retain justice often opts for cooperation as a vehicle to support distributive justice. But cooperation among states is more than a way for them to promote their aims through bargaining. Rather, it is a way for states to regain legitimacy by sustaining their very ability to ensure the collective action of their citizens and to treat them with equal respect and concern. The traditional discussion in international taxation seems to endorse a statist position — implicitly assuming that when states bargain for a multilateral deal, justice is completely mediated by the agreement of the states. In contrast, this Article argues that such a multilateral regime intended to provide the state with fundamental legitimacy requires independent justification. Contrary to the conventional statist position, I maintain that cooperating states have a duty to ensure that the constituents of all cooperating states are not treated unjustly because of the agreement. I argue that not only cosmopolitanism but political justice too requires that a justifiable cooperative regime must improve (or at least not worsen) the welfare of the least well-off citizens in all cooperating states. I 1 * Professor of Law, Bar Ilan University. I would like to thank Sivan Agon-Shlomo, Itzhak Benbaji, Eyal Benvenisti, Peter Hongler, Roy Kreitner, Adi Libson, Doreen Lustig, Irma Mosquera and the participants at the Cornell-Tel Aviv conference on Law, Economy, and Inequality, December 2015. Citation: 18 Theoretical Inquiries L. 1 (2017) 2 Theoretical Inquiries in Law [Vol. 18:1 explain that cooperation alone is no guarantee of improved welfare and that certain transfer payments between rich and poor countries might be required to ensure this. IntroductIon Inequality, as well as the scope of the duty of justice to reduce it, has always been a central concern of political justice. Income taxation has been seen as a key tool (some may say the only appropriate tool) for redistribution and the state was the key (and for many years the only) arena for discussions of justice. In creating new links between states, as well as competition among them for residents, investments, and tax revenues, globalization has forced both political philosophers and income tax scholars to consider issues of justice beyond the state. Political philosophers debate the appropriate scope of applicability of the duty of justice: does it apply exclusively at the state level, or should it transcend those boundaries? International taxation scholars and policymakers have engaged substantially in the practicalities of income taxation in a globalized world. They pay particularly close attention to the eroding income tax bases of states and explore potential solutions, placing considerable focus on international cooperation in income taxation in an attempt to sustain states’ tax bases.1 Philosophers, however, have not delved into the actual mechanisms of taxation, and the efforts of international tax experts rarely engage the question of global justice normatively.2 This Article seeks to close this gap by considering international tax policy within the framework of global justice. 1 See, e.g., OECD/G20 Base erosion and Profit shifting Project, develoPing a Multilateral instruMent to Modify Bilateral tax treaties 10 (2014), http://dx.doi.org/10.1787/9789264219250-en. For an overview of the multilateral efforts, see Tsilly Dagan, Community Obligations in International Taxation (Global Trust Working Papers Series, Working Paper No. wps-2016-01, 2016), http://globaltrust.tau.ac.il/wps-2016-01-community-obligations-in-international- taxation/. 2 For some notable exceptions, see, for example, gillian Brock, gloBal justice: a cosMoPolitan account (2009); Miriam Ronzoni, Global Tax Governance: The Bullets Internationalists Must Bite — and Those They Must Not, 1 Moral Phil. & Pol. 37 (2014); Peter Dietsch & Thomas Rixen, Tax Competition and Global Background Justice, 22 j. Pol. Phil. 150 (2014); Ilan Benshalom, The New Poor at Our Gates: Global Justice Implications for International Trade and Tax Law, 85 n.y.u. l. rev. 1 (2010); Kim Brooks, Inter-Nation Equity: The Development of an Important but Underappreciated International Tax Value, 2017] International Tax and Global Justice 3 In recent years, state tax policies have been seriously challenged. Globalization has intensified tax competition by allowing individuals and businesses more leeway in tax planning their whereabouts and thereby critically undermining the ability of states to promote domestic redistribution. At the same time, globalization — and global inequality — has forced political philosophers to consider the application of distributive justice duties beyond national borders. The debate among political philosophers has focused on the appropriate level of redistribution. Whereas proponents of cosmopolitan justice argue that justice should prevail between individuals irrespective of their national affiliation, institutionalists argue that justice is a duty that is a derivative of political institutions, and statists in particular focus on the state as the primary forum in which duties of redistribution apply. Thomas Nagel in particular has taken a strong statist position, arguing for a sharp distinction between the domestic arena, where the distinctive convergence of states’ coercive power and their constituents’ co-authorship gives rise to exceptional duties of justice, and the international arena, beyond the state, where no duty of justice other than humanitarianism exists.3 While Nagel, like others, is deeply troubled by global inequality, he asserts that a distributive duty cannot be legitimately extended beyond the co-authored, coercive institution of the state. Many have criticized this strong statist position, supporting a broader duty of justice in the international arena. Cosmopolitans challenge the very political perception of justice;4 others, albeit conceding a special duty to redistribute within the state, challenge the lack of any duty of justice beyond the state.5 In this Article, I make no attempt to settle the philosophical debate regarding the appropriate level of redistribution, but rather contend that state competition reframes this debate: for state competition represents a new world order that undermines existing political institutions and mandates a reevaluation of the duties of justice under the newly emerging arrangements. State competition goes to the heart of the social contract and possibly requires its renegotiation. in tax reforM in the 21st century 471 (Richard Krever & John G. Head eds., 2008); Alexander Cappelen, National and International Distributive Justice in Bilateral Tax Treaties, 56 finanzarchiv 424 (1999); Allison Christians, How Nations Share, 87 ind. l.j. 1407 (2011); Allison Christians, Sovereignty, Taxation and Social Contract, 18 Minn. j. int’l l. 99 (2009); Dimitri Paolini et al., Tax Treaties with Developing Countries and the Allocation of Taxing Rights, 39 eur. j.l. & econ. 1 (2015); Diane Ring, Democracy, Sovereignty and Tax Competition: The Role of Tax Sovereignty in Shaping Tax Cooperation, 9 fla. tax rev. 555 (2008). 3 See infra text accompanying notes 15-18. 4 See infra text accompanying notes 8-13. 5 See infra text accompanying notes 19-33. 4 Theoretical Inquiries in Law [Vol. 18:1 The reason for this, in a nutshell, is that competition undermines the ability of states (rich as well as poor) to maintain the domestic background conditions that are necessary to sustain their legitimacy and that make the state a uniquely appropriate candidate for promoting justice. Under tax competition, I argue, the state can no longer unilaterally provide the assurances required for social cooperation. Furthermore, its constituents are no longer independent in jointly co-authoring their collective will. Both coercion and co-authorship are dependent on conditions that transcend state boundaries. In the international tax market, where states compete for residents, investments, and tax revenues, their sovereignty becomes fragmented. Many residents can now unbundle state’s sovereignty and pick and choose from among the public goods other states offer. Under this unbundled sovereignty, states can no longer unilaterally ensure the cooperation of their citizens without either imposing illiberal restrictions on those citizens or else cooperating with other countries. Thus, as far as tax and redistribution are concerned, under globalization, the state can no longer be considered a sovereign endowed with monopolistic coercive power. Moreover, because states are becoming market actors, redistribution is to a large extent becoming a price that is subject to the supply and demand forces of the global market for sovereign goods. As a result, market rules are increasingly replacing citizens’ co-authorship in determining states’ redistributive capabilities and, consequently, their tax policies as well. Instead of equally engaging in a deliberative process with their fellow citizens, (some) taxpayers simply exercise their exit power when (redistributive) prices become too high. Thus, the level of redistribution that states can afford under global tax competition — and not what is reached through the collective co-authorship of their citizenry — is what determines their redistribution policies. The bottom line is that states’ monopoly over coercive powers as well as their ability to give expression to the collective will of their constituents is being undermined. The more fragmented sovereignty becomes, the less able it is to enforce its policies; the more marketized it becomes, the less voice it allows its citizens. Thus, in conditions of tax competition, justice is under constant threat. If the state can no longer provide justice, what entity can? Perhaps there is no such entity, beyond mindful actors who undertake justice obligations voluntarily. For those seeking to promote justice, then, the only option may be to move beyond the state to the international level, where a new form of global cooperation should emerge to ensure the coercive powers necessary for promoting justice, accompanied by a new level of the duty of justice. Faced with rising domestic inequalities and dwindling tax bases, states are struggling to figure out their next step. Many have argued for cooperation among 2017] International Tax and Global Justice 5 states as a solution to these challenges. In fact, in their 2012 declaration,6 the G20 finance ministers initiated a search for solutions to the problem (BEPS) and resolving the global economy’s difficulties.7 The OECD took upon itself what may be the most ambitious international tax challenge yet. It promised to develop a new set of standards on an unprecedented schedule.8 The widely anticipated deliverables were indeed delivered on schedule.9 Notably, both the G20 and OECD take care not to include justice as one of their main issues of concern, sticking, instead, to the conventional pro-cooperation rhetoric that argues it would benefit all cooperating states towards sustaining their tax bases. However, I contend that this phase of international taxation constitutes a unique opportunity to reevaluate the notion of duties of justice in the international arena. Given the state’s fading coercive power in taxation and the decreasing power of its citizenry to co-author its collective will due to global competition, we can no longer assume that justice can be realized within the parameters of the state. In many cases, it would be only through a cooperative accord that states could regain these powers. Cooperation in such cases is thus more than a way for states to promote their aims through bargaining. Rather, it is a way for states to regain legitimacy by sustaining their very ability to ensure the collective action of their citizens and to treat them with equal respect and concern. The traditional discussion in international taxation seems to endorse a statist position — implicitly assuming that when states bargain for a multilateral deal, justice is completely mediated by the agreement of the states. Contrary to this traditional view, this Article argues that such a multilateral regime intended to provide the state with fundamental legitimacy requires independent justification. Under these circumstances, the duty of justice cannot be assumed to be entirely mediated through the cooperating states. Thus, contrary to the conventional statist position, maintaining that the contents of multilateral duties are exhausted by the agreements or conventions as “the relations themselves do not trigger norms, only the agreements do,”10 I maintain that cooperating 6 G-20 Leaders’ Declaration (June 18-19, 2012), http://www.consilium.europa. eu/uedocs/cms_Data/docs/pressdata/en/ec/131069.pdf. 7 Id. § 48 (“We reiterate the need to prevent base erosion and profit shifting and we will follow with attention the ongoing work of the OECD in this area.”); see Yariv Brauner, What the BEPS?, 16 fla. tax rev. 55, 59 (2014). 8 oecd & g20, Base erosion and Profit shifting Project inforMation Brief 4 (2014), http://www.oecd.org/ctp/beps-2014-deliverables-information-brief.pdf. 9 See BEPS 2015 Final Reports, OECD, http://www.oecd.org/ctp/beps-2015- final-reports.htm (last visited Sept. 5, 2016). 10 Joshua Cohen & Charles Sabel, Extram Republicam Nulla Justitia?, 34 Phil. & PuB. aff. 147, 162 (2006). 6 Theoretical Inquiries in Law [Vol. 18:1 states have a duty to ensure that the constituents of all cooperating states are not treated unjustly as a result of the agreement. Contrary to the statist position that bargaining between states must conform only with duties of humanitarianism, I argue that not only cosmopolitanism but political justice too requires that for a multilateral regime established through cooperation to be justified it must improve (or at least not worsen) the welfare of the least well-off citizens in all the cooperating states. I explain that cooperation alone is no guarantee of improved welfare and that certain transfer payments between rich and poor countries might be required to ensure this. Part I begins by reviewing the political philosophy literature discussing global justice and the debate between statists and cosmopolitans. Part II explains the centrality and uniqueness of the state as a locus for justice and the challenges it faces under the market forces of globalization. Part III raises the following question: if the state cannot provide justice under globalization, how can justice nevertheless prevail? I. the Global JustIce debate In PolItIcal PhIlosoPhy Political philosophers have devoted considerable attention to the question of international distributive justice and have offered a wide range of approaches to what global justice means. The main point of controversy has been over the relevant scope of redistribution. Should distributive justice be promoted solely on the national level or on a global scale as well? Cosmopolitans and advocates of political justice represent the two polar ends on the spectrum of ideas supporting global justice.11 Proponents of the cosmopolitan view (such as Brian Barry, Charles Beitz, and Thomas Pogge) argue that principles of distributive justice should be 11 There are other variants of the conceptions of global distributive justice. See Simon Caney, Review Article: International Distributive Justice, 49 Pol. stud. 974 (2001). Caney divides the varying approaches into four categories: cosmopolitan, nationalist (political), society of states, and realists. Realists (or skeptics) view global justice as an unattainable ideal and, hence, leave distributive justice to the only arena capable of promoting it — the state. The society-of-states approach rejects this skepticism and holds that, although states are, indeed, responsible for their residents’ welfare, the global community bears responsibility for ensuring adequate conditions for states to be able to achieve distributive justice. Under this view, outsiders to the state have a duty to contribute only in special circumstances. See Charles R. Beitz, International Liberalism and Distributive Justice: A Survey of Recent Thought, 51 World Pol. 269, 272-73 (1999). 2017] International Tax and Global Justice 7 applied universally: to all human beings across the globe.12 Their reasoning, as Simon Caney summarizes it, is that “given the reasons we give to defend the distribution of resources and given our convictions about the irrelevance of people’s cultural identity to their entitlements, it follows that the scope of distributive justice should be global.”13 Cosmopolitans (or left institutionalists, as Michael Blake and Patrick Smith refer to them14) who follow Rawls’s concepts of justice tend to criticize his distinction between domestic and international duties of justice. Pogge, for example, regards nationality as just another deep contingency (similar to race, social class, and gender) that is “inescapable from birth.”15 Thus, following Rawls’s conception, Pogge argues, international institutions can only be justified “if the inequalities they produce optimize (against the backdrop of feasible alternative global regimes) the worst social position.”16 Proponents of political justice, in contrast, assert the duality of a justice regime and firmly distinguish between the national and global levels.17 Under this approach, justice is a good provided by social institutions. As Nagel explains: On the political conception, sovereign states are not merely instruments for realizing the pre-institutional value of justice among human beings. Instead, their existence is precisely what gives the value of justice its application, by putting the fellow citizens of a sovereign state into a relation that they do not have with the rest of humanity, an institutional 12 There are many strands to the cosmopolitan view. See Caney, supra note 11, at 975-76 (referring to radical cosmopolitanism (principles of distributive justice apply only on the global level, not on the national level) and mild cosmopolitan (distributive principles apply on the global and national level), institutional global justice (i.e., justice within institutions) and interactive institutionalism (in the context of individuals), and distribution among individuals and distribution among states). Moreover, the measures of distribution vary from approach to approach. 13 Id. at 977. 14 Michael Blake & Patrick Taylor Smith, International Distributive Justice, the stanford encycloPedia of PhilosoPhy (Edward N. Zalta ed., Winter 2013), http://plato.stanford.edu/archives/ win2013/entries/international-justice. 15 thoMas Pogge, realizing raWls 247 (1989). 16 Id. 17 Supporters of the national approach emphasize the moral relevance of membership in a nation. Again, national approaches vary. For a survey of these approaches, see Caney, supra note 11, at 980-83. 8 Theoretical Inquiries in Law [Vol. 18:1 relation which must then be evaluated by the special standards of fairness and equality that fill out the content of justice.18 Strong statists like Nagel insist not only that special duties of justice exist within the state, but that “[j]ustice is something we owe through our shared institutions only to those with whom we stand in a strong political relation. It is, in the standard terminology, an associative obligation.”19 Outside the framework of the state, in the absence of such unique relations and, in particular, of the state’s coercive power, justice does not impose distributive duties, for “[m]ere economic interaction does not trigger the heightened standards of socioeconomic justice.”20 In the international arena, Nagel argues, only duties deriving from simple humanitarianism are binding. Unlike proponents of classic cosmopolitanism, contemporary left institutionalists generally concur that the state gives rise to especially stringent demands of distributive justice. However, they reject the bifurcated distinction between national and international institutions and argue for more robust distributive obligations on the international level than those imposed by humanitarianism.21 They also reject the statist emphasis on coercive power to activate claims of distributive justice and point, instead, to various reasons for supporting a less dichotomous rendition of global justice. Joshua Cohen and Charles Sabel, for example, argue that “a political morality can be political in a capacious sense, that is, sensitive to the circumstances and associative conditions, to the ‘different cases or types of relation’ for which it is formulated, without being statist.”22 In lieu of Nagel’s strong statist position, according to which normative requirements beyond humanitarianism only emerge in the framework of the state, Cohen and Sabel advocate a more flexible concept of justice.23 “We think,” they explain, “that global politics does implicate more 18 Thomas Nagel, The Problem of Global Justice, 33 Phil. & PuB. aff. 113, 120 (2005). 19 Id. at 121 (emphasis added; emphasis omitted). 20 Id. at 138. 21 Blake & Smith, supra note 14, at 11-12. 22 Cohen & Sabel, supra note 10, at 149 (2006). 23 The concern that Cohen and Sabel criticize Nagel for ignoring “is not distinctively egalitarian: not that some people are better off than others, nor that some improvements are larger than others; nor is there any assumption that all inequality requires an especially compelling justification.” Id. at 154. Instead, they stress inclusion: “Some people are treated by consequential rule-making processes as if, beyond the humanitarian minimum owed even in the absence of any cooperation, they count for nothing.” Id. Their concept of inclusion matches the kind of respect and concern (e.g., human rights, standards of fair governance, and norms of fair 2017] International Tax and Global Justice 9 demanding norms, and think that the rationale lies in a mix of the factors.” Such factors, they suggest, include strong interdependence, cooperativism, and institutionalism, as well as “a degree of involvement of will on the global scale that is more extensive than Nagel’s argument suggests.”24 Sangiovanni, for his part, downplays Nagel’s reliance on coercion.25 Instead of focusing on how the state “engages, constrains or thwarts the will,” Sangiovanni suggests focusing on “what the state does — on the object of our authorization.” He argues that equality as a demand of justice is a requirement of reciprocity in the mutual provision of a central class of collective goods, namely those goods necessary for developing and acting on a plan of life. Because states . . . provide these goods rather than the global order, we have special obligations of egalitarian justice to fellow citizens and residents, who together sustain the state, that we do not have with respect to noncitizens and non-residents. This does not imply that we have no obligations of distributive justice at the global level, only that these are different in both form and content from those we have at the domestic.26 Darrel Moellendorf agrees that duties of justice are owed only to co- members of institutions and not universally to all, but disagrees with the claim that citizenry is the only kind of co-membership that generates duties of social justice. He argues that “the inherent dignity of persons constrains distribution) “that is owed by the variety of agencies, organizations, and institutions (including states) that operate on the terrain of global politics.” Id. at 149. 24 Id. at 164. By strong interdependence they mean whenever the fate of people in one place depends substantially on the collective decisions taken by people in another place and vice versa. Cooperativism is the existence of a consequential scheme of organized, mutually beneficial cooperation under rules, and institutionalism refers to the existence of an institution with responsibilities for distributing a particular good. 25 Andrea Sangiovanni, Global Justice, Reciprocity, and the State, 35 Phil. & PuB. aff. 3, 15 (2007) (“[A]lthough Nagel often speaks of coercion . . . all that is required is that the system of societal rules be nonvoluntary for those subject to it.”). Sangiovanni further suggests that while with voluntary associations (e.g., tennis clubs) one has a viable option to leave, non-voluntary organizations provide no such option and hence require a more stringent justification. The state must give each of us special reason to accept its laws, strong enough to rebut any objection we might have to them. The justification, in turn, must show that the law could reasonably be seen as acceptable from each person’s individual point of view, although no one consents to it. Id. at 18. 26 Id. at 4. 10 Theoretical Inquiries in Law [Vol. 18:1 institutional power. Institutions express respect for persons only if they are such that persons whose lives are lived within the institutions could reasonably endorse.”27 Thus, the positions of these left institutionalists are less egalitarian on the global level than the stance of early cosmopolitans, ranging from “reciprocity,”28 to “inclusion,”29 to support for equal sharing only of the public goods supplied by the international system.30 Competition, however, has dramatically changed the ability of states to sustain the background conditions necessary for the provision of justice. Below, I argue that state competition in the era of globalization has stripped states of their status as a unique forum for duties of justice. Specifically, states can no longer unilaterally enforce justice-promoting cooperation, nor are they a unique locus of independent co-authorship for their citizens. Thus, the ability of states (rich and poor alike) to sustain the domestic background conditions necessary for their legitimacy and that make them an exceptional candidate for promoting justice is being undermined. Part II expands on this perceived uniqueness of the state and explain why — in a marketized and fragmented competitive market of states — this distinctiveness is being eroded. II. the lost state A. Why the State? The key challenge for statists like Nagel is to explain their dichotomization of duties of justice into expansive duties at the state level and minimal humanitarian duties at the supranational/international level. According to Nagel, justice should be national because “[t]he state makes unique demands on the will of its members . . . and those exceptional demands bring with them exceptional obligations, the positive obligations of justice.”31 What creates these exceptional obligations? Nagel points to the complex combination of 27 Darrel Moellendorf, Cosmopolitanism and Compatriot Duties, 94 Monist 535, 538 (2011) (arguing that social justice exists between persons if those persons are co-members in an association that is “(1) relatively strong, (2) largely (individually) non-voluntary, (3) constitutive of a significant part of the background rules for the various relationships of their public lives, and (4) governed by norms that can be subject to (collective) human control”). In “respect” he refers to this as “justificatory respect.” Id. at 537. 28 Id. 29 Cohen & Sabel, supra note 10. 30 Sangiovanni, supra note 25. 31 Nagel, supra note 18, at 130. 2017] International Tax and Global Justice 11 coercively enforced, co-authored rules as the source of the transcendence above simple humanitarianism. As Cohen and Sabel explain, “Nagel argues that a normative order beyond humanitarianism’s moral minimum emerges only within states whose central authority coercively enforces rules made in the name of everyone subject to those rules: only, that is, when individuals are both subjects in law’s empire and citizens in law’s republic.”32 Nagel offers two answers to the question of what can “move us past humanitarianism.”33 The first is social cooperation, for which the state functions as a third-party enforcer.34 Assurance of this cooperation is necessary, according to Nagel, as an “enabling condition of sovereignty to confer stability on just institutions.”35 The only way to provide that assurance, Nagel argues, is through some form of law, with centralized authority to determine the rules and a centralized monopoly of the power of enforcement. This is needed . . . both in order to provide terms of coordination and because it doesn’t take many defectors to make such a system unravel. The kind of all-encompassing collective practice or institutions that is capable of being just in the primary sense can exist only under sovereign government.36 Coercion is, of course, a fundamental component of the state. It both ensures cooperation and, at the same time, requires legitimation. In Nagel’s words, adherence to . . . [political institutions] is not voluntary: Emigration aside, one is not permitted to declare oneself not a member of one’s society and hence not subject to its rules, and other members may coerce one’s compliance if one tries to refuse. An institution that one has no choice about joining must offer terms of membership that meet a higher standard.37 32 Cohen & Sabel, supra note 10. 33 Id. at 160. 34 Nagel, supra note 18, at 116 (extending the Hobbesian idea of the sovereign as the one providing assurances for cooperation to the non-self-interested motives of justice and arguing that “even if justice is taken to include not only collective self-interest but also the elimination of morally arbitrary inequalities, . . . the existence of a just order still depends on consistent patterns of conduct and persisting institutions that have a pervasive effect on the shape of people’s lives.”). 35 Id. 36 Id. 37 Id. at 133. 12 Theoretical Inquiries in Law [Vol. 18:1 Nagel’s second explanation for limiting expanded duties of justice to the sphere of the state is “that states not only foster cooperation by coercively enforcing rules but implicate the will of those subject to their coercive authority by making, in the name of all, regulations that apply to them all.”38 According to Cohen and Sabel, will-implication is significant since “it is impermissible to speak in someone’s name . . . unless that person . . . is . . . given equal consideration in making the regulations.”39 Regulations made by the state must therefore be justified to their co-authors. “And not just any justification will do . . . the justification must treat each person . . . in whose name the coercion is exercised — as an equal.”40 Unlike the state, Nagel claims, the international system does not embody such a complex combination of co-authorship and coercive implication of will. The relationship of individuals to the supranational bodies, he maintains, is completely mediated by governments. Hence, as Cohen and Sabel clarify, those bodies do not speak in the name of all, their conduct is not authorized by individuals, and the wills of those individuals are not implicated. . . . Intergovernmental agreements or other forms of supra- national arrangement can give rise to new normative requirements but the content of those requirements is exhausted by the agreements or conventions: the relations themselves do not trigger norms, only the agreements do.41 Nagel explains that “[i]f the default really is basic humanitarianism, permitting voluntary actions for the pursuit of common interests, then something more is needed to move us up to the higher standard of equal consideration. It will not emerge merely from cooperation and the conventions that make cooperation possible.”42 Since global regulation does not speak in the name of individuals, it can settle for humanitarian obligations only and is not obligated to apply the standard of equality. Cooperation alone and the voluntary conventions signed by the countries that make such cooperation possible are not enough to move us up to the higher standard of equal consideration. Nagel’s critics focus on his claim that duties on the international level do not exceed humanitarianism. Even if the international duties do not amount to full duties of justice, they are more than humanitarianism, argue critics. Blake and Smith query whether left institutionalists are in fact begging the 38 Cohen & Sabel, supra note 10, at 160. 39 Id. 40 Id. 41 Id. at 162. 42 Nagel, supra note 18, at 142-43. 2017] International Tax and Global Justice 13 question by assuming that the international system is “indeed coercive, will remain coercive and is coercive in precisely [the] way needed to generate obligations of distributive justice.”43 They contend that “left institutionalists are quite adept at identifying injustices in the international arena, but they are less persuasive at showing that the appropriate normative response to these wrongs is to have the international system be governed by principles of distributive justice.”44 Yet even these critics admit that duties of justice (should) exist within the state. Cosmopolitans posit that states should uphold pre-political rights to justice. Institutionalists, in turn, hold that the legitimacy of the state’s use of its coercive powers is contingent on its treating its subjects- citizens with equal concern and respect, but some nonetheless assert that, for a variety of reasons, duties of justice should apply beyond the state. In what follows, I focus on the state and argue that globalization is challenging the underlying conditions not only for the feasibility of the state’s cooperative efforts but also its very legitimacy. Under globalization, I assert, both coercion and co-authorship are dependent on what happens beyond state boundaries. The state’s coercive power is reliant on other states’ cooperation, and the design of its tax rules is increasingly determined by global supply and demand rather than the co-authored collective will of its constituents. Thus, for those seeking to sustain states’ legitimacy (and for those interested in promoting justice), the international arena may be the only viable recourse. B. A Fragmented and Marketized (Tax) Sovereignty For Nagel, sovereignty is the key: “[t]he kind of all-encompassing collective practice or institutions that is capable of being just in the primary sense can exist only under sovereign government.”45 For Nagel, who stresses the coercive nature of the state and the co-authorship of its constituents, sovereignty would seem nothing like a consumer good.46 Globalization, however, is significantly transforming the nature of sovereignty. If we zoom out to the international level, we will find that the all-powerful sovereign, as traditionally envisioned, is but one of two-hundred or so sovereigns that compete with one another. Competition increasingly is turning states into market players that offer their goods and services to potential “customers.” In this market for sovereignty goods, states compete for capital and residents, while (at least some) individuals 43 Blake & Smith, supra note 14, at 13. 44 Id. 45 Nagel, supra note 18, at 116. 46 See Michael j. sandel, What Money can’t Buy: the Moral liMits of Markets (2012); Michael Walzer, sPheres of justice (1983). 14 Theoretical Inquiries in Law [Vol. 18:1 “shop around” for sovereign-provided privileges, public goods, and social and cultural goods. This competition seems to be percolating into the interaction between sovereigns and their subjects as well. Competition is altering the traditional roles of sovereigns and constituents alike. It impacts the kinds and quantities of public goods and privileges offered by the state to its constituents;47 it affects the meanings and values underlying the sovereign-subject interaction; and, most relevant to our purposes, it alters modes of political participation and schemes of distribution. Two forces steer this market. First and foremost is the mobility of residents and capital; second is the ability of constituents/stakeholders (often with the encouragement of governments) to unbundle the “packages” of sovereignty. Consider mobility first: taxpayers — both individuals and businesses — are becoming increasingly mobile and can therefore select from alternative jurisdictions to relocate their places of residence, investments, business activities, or even citizenship.48 States often foster such mobility by offering certain privileges and incentives to desirable potential residents.49 Residents- in-demand relocate to more appealing jurisdictions, as states lure away talented individuals, potential investors, and young and productive individuals to salvage their collapsing social security systems.50 This has put states in an unfamiliar position: they no longer strictly impose compulsory tax and regulatory requirements on their subjects. Instead, the tax policymaking process has gradually transformed under competition, and states increasingly 47 See, e.g., Tsilly Dagan, The Tragic Choices of Tax Policy in a Globalized Economy, in tax and develoPMent 57 (Yariv Brauner & Mirnada Stewart eds., 2013). 48 For example, in recent years, many ultra-rich individuals have expatriated in order to avoid high taxes, shifting not only their residencies but also their citizenship to another jurisdiction. See Michael S. Kirsch, Taxing Citizens in a Global Economy, 82 n.y.u l. rev. 443, 490 (2007). 49 alex easson & eric M. zolt, World Bank inst., tax incentives and tax Base Protection issues 3-8 (2003); louis t. Wells et al., using tax incentives to coMPete for foreign investMent: are they Worth the costs? 27-31 (2001). 50 Ayelet Shachar, Picking Winners: Olympic Citizenship and the Global Race for Talent, 120 yale l.j. 2088 (2011); Ayelet Shachar, The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes, 81 n.y.u. l. rev. 148 (2006). Multinational enterprises are also, of course, mobile. They can incorporate or re-incorporate in their jurisdiction of choice and move their production, marketing, and research and development (R&D) activities to more favorable locations. Michael P. Devereux & Rachel Griffith, The Impact of Corporate Taxation on the Location of Capital: A Review, 9 sWedish econ. Pol’y rev. 79 (2002). 2017] International Tax and Global Justice 15 operate as recruiters of mobile investments and residents from other states, while at the same time striving to retain their own residents and investments. The legal rules that apply in a certain jurisdiction and the applicable tax rules and rates are important considerations for the mobile when weighing their residency options and where to locate their economic activities.51 Hence, tax rules and rates have become, to a large extent, the currency of state competition. In these conditions of tax competition, states attempt to attract (and keep) investors and residents by offering, among other things, appealing taxing and spending deals.52 This means, on the one hand, lowering taxes on the most mobile53 while, on the other hand, offering the public goods and services that are most attractive to them. Such competition could have problematic distributive effects if, as seems plausible, residents who benefit from the welfare state have a stronger preference for it than those who do not derive any benefit therefrom (or are at lower risk of requiring welfare benefits).54 Indeed, rich taxpayers who are supposed to be on the contributing side of redistribution will likely prefer less distribution over more distribution (and even if they are altruistic, they may prefer to fund charities of their own choice rather than government-determined redistribution). Taxpayers on the receiving end of redistribution will presumably have a preference for greater redistribution. However, higher taxes, which are required 51 Devereux & Griffith, supra note 50. 52 Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 j. Pol. econ. 416 (1956). 53 For a detailed analysis of the phenomenon of tax competition, see Reuven S. Avi-Yonah, Globalization, Tax Competition, and the Fiscal Crisis of the Welfare State, 113 harv. l. rev. 1573, 1575-603 (2000). It has been argued that tax competition will drive tax rates down to a suboptimal level, where states are forced to under-provide public goods. For a formal model supporting this argument, see George R. Zodrow & Peter Mieszkowski, Pigou, Tiebout, Property Taxation, and the Underprovision of Local Public Goods, 19 j. urBan econ. 356 (1986). Although it is unclear what exactly constitutes the “optimal” level of public goods, see John Douglas Wilson, Theories of Tax Competition, 52 nat’l tax j. 269, 270 (1999), it is pretty clear that redistribution would be reduced. 54 The federal system had interesting issues with regard to welfare at the state level. Unlimited mobility of residents posed a risk of turning states with an extensive welfare system into “welfare magnets.” This significantly decreased their ability to sustain their welfare systems. For discussion of whether this trend actually exists, see William D. Berry, Richard C. Fording & Russell L. Hanson, Reassessing the “Race to the Bottom” in State Welfare Policy, 65 j. Pol. 327 (2003). See also Roderick M. Hills Jr., Poverty, Residency, and Federalism: States’ Duty of Impartiality Toward Newcomers, 119 suP. ct. rev. 277 (1999). 16 Theoretical Inquiries in Law [Vol. 18:1 to finance the welfare state, might drive the wealthy away. If this turns out to be the case, the government will be forced to choose between either keeping taxes high and risking losing the wealthy or lowering taxes and reducing redistribution. In the extreme case, lowering tax rates on mobile residents and the mobile factors of production could shift the tax burden to the less mobile residents and factors (most importantly, lesser-skilled labor55) and lead to a reduction in tax revenues. This will, accordingly, undermine the ability to sustain the welfare state and, in particular, redistribution. There are, of course, several factors that function as counterweights to competition’s downward pressure on redistribution.56 One central factor is the fact that the mobility of residents and even of investments is not entirely elastic. People must shoulder costs — economic and otherwise — in shifting their residences, families, cultural ties, and jobs and switching their domestic loyalties.57 Businesses may have to contend with costs entailed by moving their physical activities and workers and applying for new permits, for example. States might also find shifting their policies costly. An entrenched tradition of pro-welfare policies, a committed and highly involved civil society, or even interest groups could all push in favor of pro-redistribution policies. Some states could have more leeway in effecting such change. If a state offers an attractive residential environment, particular affinities (e.g., a strong sentiment in favor of a specific residential location due to historical, cultural, or national ties), a unique commitment to the welfare of fellow members of the community,58 natural resources, network externalities, or any other comparative 55 Avi-Yonah, supra note 53, at 1624 (“[A] shift in the tax burden from capital to labor tends to render the tax system more regressive. Such a tax system is also less capable of redistributing resources from the rich to the poor.”). 56 See, e.g., Vivek H. Dehejia & Philipp Genschel, Tax Competition in the European Union, 27 Pol. & soc’y 403, 409 (1999); Thomas Plümper, Vera E. Troeger & Hannes Winner, Why Is There No Race to the Bottom in Capital Taxation? Tax Competition among Countries of Unequal Size, Different Levels of Budget Rigidities and Heterogeneous Fairness Norms, 53 int’l stud. Q. 761, 764 (2009) (“No doubt, the prediction of zero capital tax rates was not in line with reality when it was first formulated and it did not come true since.”); Sijbren Cnossen, Tax Policy in the European Union (CESifo, Working Paper No. 758, 2002). 57 Renouncing citizenship entails identity-related costs. See, e.g., Ruth Mason, Citizenship Taxation, 89 s. cal. l. rev. 101, 124 (2015) (and authorities therein) (“Americans who renounced their citizenship . . . in order to escape tax (or tax compliance) obligations described the process as ‘emotional,’ ‘hard,’ ‘super stressful’ and ‘extremely troubling.’”). 58 Albehto F. Alesina & Paola Giuliano, Preferences for Redistribution (NBER, Working Paper No. w14825, 2009), https://www.econstor.eu/bitstream/10419/ 2017] International Tax and Global Justice 17 advantage, it should be able to collect higher taxes and thereby enable greater redistribution. Such factors might well explain how some states continue to collect above-zero taxes and achieve a certain level of redistribution even under the pressure of global competition. Yet with mobility in the background, states — even those that traditionally support redistribution — are seriously constrained in setting their redistributive policies.59 Increasing taxation on investments and capital owners in order to sustain the welfare state induces the relocation of both residents and investments and thereby erodes the tax base. Consequently, increasing taxes beyond a certain point could undermine, rather than sustain, the welfare state.60 It is therefore widely acknowledged that even if competition does not completely thwart redistribution, it seriously restricts the ability of states to redistribute wealth.61 Furthermore, the variance in taxpayers’ mobility makes it more difficult for states to treat their constituents equally. Mobility increases the market power of some individuals. The opportunities open to them in other jurisdictions create a need for their present jurisdiction to treat them favorably in order to retain them and thereby maximize the collective welfare pie. Thus, even if decision makers were to focus solely on the interests of the poorer segments of society, ensuring those interests entails a tradeoff between treating them equally and increasing that welfare. If the state were to tax immobile and mobile taxpayers equally, it would risk exit by the latter, which could reduce the welfare of those left behind. The ability of individuals and businesses to relocate and opt for preferable packages of public goods and services at a better price is only part of the story. No less significant and too often overlooked is the ability of (certain) individuals and businesses to unbundle and then reassemble packages tailored to their specific needs. The current market of states enables individuals and businesses not only to shop for their jurisdiction of choice but also to buy “a-la-carte” fractions of such regimes under different state sovereignties. This 35647/1/59783086X.pdf. 59 This is particularly acute given that there tends to be (although not always) a correlation between wealth and mobility. The wealthiest people (as well as their capital) are often the most mobile people. Therefore, broad-brush rules seeking to treat the mobile more leniently will tend to limit redistribution via tax laws. Since redistribution targets the wealthiest, mobility limits states’ ability to redistribute. Taxing the mobile rich might push them away; taxing the less mobile (and not as rich) will yield less efficient redistribution. 60 See, e.g., Avi-Yonah, supra note 53, at 1624. 61 Id. at 1575-603. 18 Theoretical Inquiries in Law [Vol. 18:1 fragmentation of sovereignty occurs in many areas of state regulation,62 but tax — although once the quintessential example of a coercive legal regime that covers all bases — seems particularly amenable to tailoring by expert tax-planners. Tax rules were traditionally applied on both a territorial basis (i.e., to all income-producing activities sourced within a jurisdiction) and a personal basis (i.e., to all the worldwide income produced by a state’s residents and sometimes even its citizens). This presumably enabled states to use their coercive power of taxation on local residents (and citizens), foreign investors, and people with business connections to the taxing jurisdiction. Arguably, this sweeping applicability of national tax laws empowered states to impose duties to pay redistributive taxes without taxpayers’ having any legal ability to opt out. In the era of globalization, however, tax laws have become notorious for being virtually elective (at least for some). The conditions that can trigger the application (or non-application) of international tax laws in different countries’ jurisdictions vary widely, which has produced a fragmented international tax landscape with a diversity of mix-and-match components: differing residency rules, a wide assortment of source rules, different variations of allowable deductions and tax and withholding rates, and a vast number of tax treaties between various jurisdictions. Sophisticated and well-advised taxpayers can assemble these different components into a tax regime that is preferable to them and does not necessarily overlap with any of the regimes governing their other affairs.63 As a result, these taxpayers can simultaneously reside in one jurisdiction (and consume its publicly provided goods and services), do business in another (and use the local court and banking systems), invest in an industrial plant in a third (and reap the benefits of a publicly-educated workforce), vote in a fourth, and pay the tax rates, if any, of a fifth.64 62 Tsilly Dagan, Tax Me if You Can, The Global Market for Tax & Legal Rules (Feb. 6, 2016) (unpublished manuscript), http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2506051. 63 Cf. Wolfgang Schon, Playing Different Games? Regulatory Competition in Tax and Company Law Compared, 42 coMMon Mkt. l. rev. 331, 336 (2005) (describing tax competition as competition between bundled goods whereas company law competition concerns only one particular good). 64 The reason this is possible is that different factors trigger the application of different duties and rights. Some rights and duties are extended in certain countries to residents; others apply to property owners, investors, or citizens of certain states. Many of these rights and duties are related to a person’s key place of business. Others are connected to citizenship, a specific registry (such as the registration of a corporation, financial instrument, vessel, or vehicle). 2017] International Tax and Global Justice 19 Assembling such a tax package may or may not involve actually relocating resources, for tax matters are well-known for the “paper shifting” style of complex planning they involve. Tax planners employ a host of techniques to de facto opt out of a tax jurisdiction, without actually relocating their clients’ residency or activities. Tax planners often incorporate subsidiaries in tax havens to defer the taxation of their income (such as worldwide royalties or service income) to when the profits are repatriated, if at all.65 They siphon off income through beneficial tax treaties to and from low-tax jurisdictions, thereby avoiding taxation at source.66 They use hybrid entities to take advantage of a deduction in a high-tax jurisdiction, while avoiding taxation in the jurisdiction where the income was produced,67 or even take advantage of deductions twice;68 and they use transfer pricing to allocate revenue to low-tax jurisdictions, for example, by setting transaction prices between related entities to increase taxable income in low-tax jurisdictions and increase deductions in high-tax jurisdictions. Tax planners also employ earning stripping to erode the tax base within the country where the income was produced69 and construct creative derivatives that are treated as loans in one country and equity 65 Anecdotal data regarding investments via famous tax havens is telling: [B]y searching through the IMF Co-ordinated Direct Investment Survey (CDIS), it emerges that in 2010 Barbados, Bermuda and the British Virgin Islands received more FDIs (combined 5.11% of global FDIs) than Germany (4.77%) or Japan (3.76%). During the same year, these three jurisdictions made more investments into the world (combined 4.54%) than Germany (4.28%). On a country-by-country position, in 2010 the British Virgin Islands were the second largest investor into China (14%) after Hong Kong (45%) and before the United States (4%). For the same year, Bermuda appears as the third largest investor in Chile (10%). Similar data exists in relation to other countries, for example Mauritius is the top investor country into India (28%), the British Virgin Islands (12%), Bermuda (7%) and the Bahamas (6%) are among the top five investors into Russia. oecd, addressing Base erosion and Profit shifting 17 (2013) [hereinafter BePs rePort]. 66 Id. at 10 (explaining the technique). 67 If, for example, a subsidiary is considered transparent in jurisdiction A but opaque in jurisdiction B, payments (e.g., interest payments or royalties) from B to A will be deductible in A (thus reducing taxable income and tax liability in A) but not considered income in B. 68 By attributing the deductions to an entity that could be jointly considered for tax purposes with two different entities in two different countries. 69 A typical case involves setting up a finance operation in a low-tax country to fund the activities of the other group companies. The result is that the payments are deducted against the taxable profits of the high-taxed operating companies while being taxed favorably or not being taxed at all at the level of the recipient, 20 Theoretical Inquiries in Law [Vol. 18:1 investment in another.70 They oftentimes use a combination of these techniques,71 along with others, to reduce the total tax liability of individuals and businesses. The end result is that citizens and residents do not necessarily have to leave their home country in order to avoid paying its taxes. Skilled and sophisticated tax planning enables them to pay lower taxes than they would have otherwise been forced to pay in their home jurisdiction. It is important to note that this is not merely an enforcement issue, nor is it a matter of states’ being unaware of their tax system’s vulnerabilities. Some of the tax-planning techniques are so deeply entrenched that they are not even considered planning. Often states knowingly allow for the use of instruments by residents (and, obviously, investors) to lower their tax rates. Exotic tax shelters may be infamous for the generous tax benefits they offer and creative tax planning they facilitate, but the distinction between these tax havens and (presumably) legitimate countries providing tax benefits to attract or retain economic resources is far from clear. In many cases, international competition prevents states from applying their full taxing capacity. In fact, states often adopt a territorial taxing system or deferral of taxes for business income produced by domestically- held foreign corporations so as to protect their residents in the competition with foreign businesses. Similarly, some would argue that states refrain from applying general anti- avoidance rules as a means of price-discriminating among their own residents, thus allowing for a reduction of the total tax burden. See BePs rePort, supra note 65, at 9-10. 70 If, for example, country A classifies a transaction as equity investment (and hence the payments as dividend distributions) and country B classifies the same transaction as a loan (and the payments as interest), then payments from B to A will be considered interest (and hence deductible), while considered dividends by country A. If country A exempts dividend income or provides it with preferential treatment — there is a tax gain. 71 Google’s Double Irish Dutch Sandwich is a good example of such a structure: Google’s worldwide income is channeled to an Ireland subsidiary (thus reducing Google’s income in high-tax jurisdictions because the fees paid are deductible at source). The Ireland Corporation’s income is reduced by royalties payments to another subsidiary — Google BV (thus enjoying the exemption from withholding taxes within the EU). Google BV’s income is stripped using almost identical royalties payments to a Bermuda company. The Netherlands impose no withholding taxes and Bermuda is famous for no income tax. The result is a near zero tax on Google’s income from customers in Europe, the Middle East and Africa. For a detailed description, see Edward Kleinbard, Stateless Income, 11 fla. tax rev. 699, 706 (2011). 2017] International Tax and Global Justice 21 thereby keeping their jurisdiction hospitable to current as well as future residents.72 Moreover, states use generous exemptions, deductions, and subsidies to attract foreign investments as well as foreign residents. Multilateral efforts to curtail such policies or even to determine what constitutes legitimate policy under a state’s sovereignty and what amounts to “harmful tax competition” have failed. Even when states do not attempt to use tax policies as vehicles of competition, uncoordinated rules may give rise to arbitrage opportunities. Thus, innocent rules such as allowable deductions, unique forms of incorporation (such as limited liability companies), conflicting source rules, and differing interpretations of certain types of transactions (e.g., a lease versus a loan) all open the gates to tax planning aimed at profiting from inconsistencies across jurisdictions. Interestingly, due to this fragmentation, taxpayers can even avoid domestic taxes without waiving membership in their state. Thus, rather than a pathology requiring stricter enforcement, fragmentation — and the planning opportunities it breeds — is a natural outcome of the decentralized nature of international taxation. In any event, the reality of tax competition is that income taxation is no longer an archetypical example of a forum where states exercise coercive power; instead, it more closely resembles a menu of options for (mostly wealthy and well-advised) taxpayers to select from. When tax policies are competitive and elective rather than the product of political deliberation coerced by state power, they represent a very different vision of the state as a locus for the duties of justice from what political philosophers traditionally conceived. The next Section discusses this transformed role of the state. C. The Market of States as Undermining States’ Legitimacy State competition for residents and mobile factors of production and the fragmentation of states’ sovereignty both challenge the conception of the state as the key forum for applying duties of justice. If the state can no longer use its coercive power to provide assurances of its constituents’ mutual responsibility, can it still legitimately impose duties of justice? If it no longer equally implicates the will of its constituents in a political dialogue among themselves, but rather conforms to their relative market value (most significantly their mobility), can it genuinely speak in the name of them all? And if the state allows (some of) them to pick and choose among its various functions, does it still constitute the political institution envisioned by statists when 72 Benjamin Alari, Price Discrimination in Income Taxation (Jan. 30, 2012) (unpublished manuscript), http://ssrn.com/abstract=1796284. 22 Theoretical Inquiries in Law [Vol. 18:1 they designate it the political institution where socioeconomic justice can and should prevail? The decline in the power of states to provide and enforce assurances for the collective action of their constituents undermines the legitimacy of their use of coercive power. The shift away from political participation and towards market norms in formulating regulation calls into question the state’s ability to give equal consideration to all its constituents in the regulation. Treating some constituents (those with other available options) more favorably than others, I argue, undermines the state’s unique position as speaking in the name of all. With the state no longer able to provide assurances of the provision of justice and its capacity to equally pronounce its constituents’ collective will diminishing, its ability to provide justice and thus its legitimacy in applying its coercive power wanes. To clarify this, recall Nagel’s first explanation for “why the state”: “[t]he state makes unique demands on the will of its members . . . and those exceptional demands bring with them exceptional obligations, the positive obligations of justice.”73 In conditions of tax competition, however, the state’s demands of its constituents are asymmetrical and potentially regressive — that is, inherently unjust. Whereas some taxpayers can pick and choose among their duties, others enjoy less leeway and must comply strictly with the state’s coercive authority, meaning that this coercion is effective only in relation to some of the state’s members. Some taxpayers — those who are more mobile or who can more effectively opt out of the state’s jurisdiction — are able to escape its coercive power. Hence, the state does not equally impose demands (including the duty to pay taxes) on all taxpayers. In these circumstances, is it still legitimate for the state to make such demands? Furthermore, as explained above, the state’s ability to ensure justice is critically diminished if the stronger segments of society are able to opt out of its tax system. Consequently, while the state’s demands of taxpayers with lesser tax-planning capacity are still sound, its demands on taxpayers who can plan must be adjusted to the elasticity of their planning opportunities. The rules of the market dictate that the more elastic constituents will get what they pay for, whereas the others — albeit bound to comply with the state’s demands — will trail behind. The bottom line is that states make coercive demands on their less-elastic constituents without being able to assure them of the justice they deserve, namely: the justice that legitimates the coercive demands. Making demands without conferring the benefits of state duties 73 Nagel, supra note 18, at 130. 2017] International Tax and Global Justice 23 undercuts state legitimacy as conceived by Nagel.74 The state is thus able to uphold only a very thin conception of justice: one that is based on people’s goodwill and sense of loyalty and not on the coercive co-authored nature of the state. To better understand this, recall that Nagel gives two distinct rationales for the unique duties of the state. Both become debatable in conditions of state competition. First is the state’s ability to ensure social cooperation. The state’s centralized monopolization of the power of enforcement is necessary, Nagel explains, to ensure the terms of coordination and because it doesn’t take too many defectors for such a system to unravel. Although it would be inaccurate to claim that states’ authority has completely eroded, their inability to enforce taxation equally due to competition certainly undercuts their ability to enforce their redistributive schemes. While immobile taxpayers, low-demand taxpayers, and taxpayers with little or no tax-planning leeway are “stuck” with the state’s coercive power, the better-off taxpayers (i.e., those who could actually support the state’s duties of justice were they to shoulder their full tax burden) can often avoid state taxing duties. Thus, states can de facto enforce their tax laws predominantly on the immobile segments of society and on those segments that are incapable of effectively tax-planning. Coercion of this kind cannot provide the necessary assurances for redistribution and is thus flawed in terms of legitimacy. Nagel’s second explanation for “why the state” is will-implication: the state “mak[es], in the name of all, regulations that apply to them all.”75 Since it is illegitimate to speak in someone’s name without giving her equal consideration, regulations made by the state must be justified to their co-authors as equals. As explained above, however, under competition, state regulation does not apply equally to all. When — especially in the tax context — (some) people can choose between their loyalties and their tax liabilities and states are increasingly under pressure to recruit desirable constituents, the norms controlling the state- citizen relations inevitably change. Competition between states introduces market valuation into the state-citizen relationship. The competitive context emphasizes the level of a taxpayer’s attractiveness to the state, as well as her level of mobility. In highlighting attractiveness and mobility, competition also brings to the forefront the exit power and use-value of taxpayers. These 74 Moreover, since the better-off parts of society are often those that are less coerced and granted more effective voice in co-authoring the collective will — the competitive state regime is really a mixture of the political and the market spheres where state coercion and people’s voice are adjusted to their ability to opt out of the system. 75 Nagel, supra note 18, at 116. 24 Theoretical Inquiries in Law [Vol. 18:1 market features infuse the traits of market relations into the relationship between individuals and their state, thus reshaping both individuals as well as national valuation schemes. Instead of the political sphere’s valuation scheme, under which individuals (at least ideally) enjoy equal respect and concern, with market valuation, some citizens — those with effective exit power — are accorded greater value than others (i.e., more than those who enjoy voice but not exit). Instead of a tax system based on principles of distributive justice, the market setting imposes a price-based taxing system. The market-based criteria clash with the idea of what it means to be an equal member and viable part of the community. Potential as well as existing residents are evaluated according to whether or not they are beneficial to the state, and their provisional status is focused on and rewarded. The more in-demand and impermanent taxpayers are the better deal they can expect in terms of their tax liability and the public benefits they enjoy. As is often the case, in this context too, the market tends to take over other scales of valuation. Global competition for residents and resources pushes the state to consider the relative market value and elasticities of its constituents and to prioritize those who are in high demand rather than adhere to the requirements of justice. Market value, in highlighting constituents’ use-value and exit, crowds out equal respect and concern for constituents. Hence, the state can no longer claim to genuinely implicate the will of all of its constituents, nor, accordingly, to legitimately speak on their behalf. If states’ coercive power is eroding due to competition and if they now find it difficult to treat their citizens justly, what, if anything, can be done to promote justice? Can we still expect states to uphold principles of justice even if they can no longer do so unilaterally? Can we expect them to cooperate in order to ensure justice? And if they have to rely on the cooperation of other states in order to sustain their sovereign power, does this give rise to a new level of justice duties, across state boundaries? Part III discusses some of the possible responses to these questions. III. Where are We headed? The diminishing capacity of sovereign states to collect tax revenues has led many to view global cooperation amongst states as a way of restoring state sovereignty and, hopefully, promoting justice. Tax competition has been blamed for states’ decreased ability to collect tax revenues and for the decline of the welfare state.76 Many have asserted that cooperation and/or coordination 76 See, e.g., Avi-Yonah, supra note 53, at 1575-603. 2017] International Tax and Global Justice 25 amongst states is crucial for countries to preserve their tax bases and realize the traditional goals of tax policy.77 Some scholars have even asserted that a new global regime of international taxation has de facto emerged and now sets both the customary and treaty-based international taxation norms that countries (should) adhere to.78 Moreover, it has been claimed, such a (cooperative) global regime should be praised for promoting justice, as (only) cooperation enables states to sustain their domestic redistributive systems.79 The idea of multilateral cooperation has not been restricted to the sphere of theoretical debate. In recent years, impressive international efforts have been directed at enhancing such cooperation, culminating in the recent G-20 call for coordinated action to strengthen international tax standards, which resulted in the OECD’s BEPS Report and Action Plan.80 These efforts, however, have not centered on considerations of justice but, rather, on ways to improve states’ ability to collect taxes in light of increasing tax competition. Yet justice is often raised as a rationale for cooperation in general. Thus the question I now ask is whether cooperation is just and, if so, under what terms. A. Is Cooperation the Answer? As explained above, tax competition has resulted in the erosion of states’ legitimacy by diminishing their coercive power, ability to equally implicate the will of their constituents, and thus also the ability to treat their constituents justly. It therefore seems to make sense for states to cooperate to jointly 77 See, e.g., id. at 1675 78 See reuven s. avi-yonah, international tax as international laW: an analysis of the international tax regiMe (2007); Yariv Brauner, An International Tax Regime in Crystallization, 56 tax l. rev. 259 (2003). 79 Id. Other writers were more skeptical about the feasibility and desirability of such cooperation. See, e.g., tsilly dagan, the costs of international tax cooPeration (2004); Michael J. Graetz, Taxing International Income: Inadequate Principles, Outdated Concepts, and Unsatisfactory Policies, 54 tax l. rev. 261 (2001); Julie Roin, Competition and Evasion: Another Perspective on International Tax Competition, 89 geo. l.j. 543 (2001). Others pointed to its highly problematic implementation, stressing the role of national interests. See daniel n. shaviro, fixing us international taxation (2014). 80 See oecd, action Plan on Base erosion and Profit shifting 25, 29-40 (2013), http://www.oecd.org/ctp/BEPSActionPlan.pdf; BEPS 2015 Final Reports, supra note 9. For a recent review of the cooperative efforts on international taxation, see Tsilly Dagan, Community Obligations in International Taxation, in CoMMunity oBligations in international laW (Eyal Benvenisti & George Nolte eds., forthcoming 2017), http://ssrn.com/abstract=2736923. 26 Theoretical Inquiries in Law [Vol. 18:1 structure an enforceable regime beyond the state. As Miriam Ronzoni has claimed, “[t]o restore the capacity of state institutions to tax ‘as they see fit’ (or, better still, as their citizens see fit), a structured institutional response is required.”81 Yet I argue that mere cooperation among nations is not enough to ensure justice. A multilateral regime established through cooperation is just, I contend, if and only if it improves (or at least does not worsen) the welfare of the least well-off constituents in all the cooperating states.82 A variety of proposals for international cooperation have been put forth within international organizations and in the scholarly literature. These include proposed schemes to increase transparency by facilitating exchanges of information between states (in order to prevent tax evasion),83 proposals 81 Ronzoni, supra note 2, at 13. Ronzoni makes a forceful case for the need for an international tax governance to sustain states’ self-determination. She suggests that the occurrence of tax competition mandates an enhanced obligation of states towards one another. She argues that competition challenges states’ fiscal self-determination (since it decreases the budget and curtails redistribution) and thereby impairs their capacity to be just. Thus, she argues, even non-cosmopolitans are bound to agree to an international regime that would constrain sovereign power in order to enable states to regain their self-determination and justice- providing capabilities. Dietsch & Rixen, supra note 2, propose an international tax organization that would enable national polities regain the capacity to make collective fiscal choices about the size of the budget and the level of domestic redistribution. 82 Nagel qualifies his uncompromising statist position, where “there are good reasons, not deriving from global socioeconomic justice, to be concerned about the consequences of economic relations with [other] states.” One is where the cooperation supports an internally egregiously unjust regime. The other is considerations of humanity demand that we “allow poor societies to benefit from their comparative advantage in labor costs to become competitors in world markets . . . for example, when subsidies by wealthy nations to their own farmers cripple the market for agricultural products from developing countries, both for export and domestically.” Nagel, supra note 18, at 143. 83 OECD coMM. on fiscal affairs, Model tax convention on incoMe and on caPital sec. I-1 (1997) (2010); oecd, tax: oecd uPdates oecd Model tax convention to extend inforMation requests to grouPs (2012), http://www. oecd.org/ctp/taxoecdupdatesoecdmodeltaxconventiontoextendinformationreq ueststogroups.htm; oecd, standard for autoMatic exchange of financial account inforMation in tax Matters (2014); OECD Convention on Mutual Administrative Assistance in Tax Matters (1988), http://www.oecd.org/tax/ exchange-of-tax-Information/conventiononmutualadministrativeassistanceint axmatters.htm (with amendments as adopted in 2010). 2017] International Tax and Global Justice 27 to harmonize taxing mechanisms (to avoid tax arbitrage),84 and a (highly hypothetical) notion of a coordinated effort among all states to preserve a certain level of taxation (to prevent tax competition).85 Proposals aimed at promoting justice are less common, in fact. International organizations rarely if ever refer to justice as a reason for promoting their initiatives, but from time to time, justice is invoked as a consideration in support of international cooperation on tax matters. The distributive outcomes of the various proposed cooperative regimes could also differ: cooperation could benefit all stakeholders; it could be regressive; or it could have asymmetrical effects for residents of different countries. If successful, such cooperative regimes might optimally restore states’ coercive power as well as their ability to uphold justice for their constituents. However, this seemingly commendable convergence of state efforts is not free of either justice or legitimacy concerns. Absent cooperation, the state loses its unique status as a locus for justice, but a multilateral regime does not necessarily replace it as such. The reason for this, I hold, is that although coercive power is leveraged through this mechanism, co-authorship is not. Thus, if Nagel is correct that the unique combination of coercive and co-authored power in a political institution both demands justification and imposes a duty of justice on that institution, then both the state and the multilateral regime each lack some crucial ingredient. Without multilateral cooperation, the state lacks coercive force: it is incapable of providing its co-authoring constituents with assurances of justice without deferring to a multilateral regime. The multilateral regime, for its part, although capable of providing enforcement if successful, lacks collective co-authorship. Hence, at least in the context of 84 E.g., the proposal regarding transfer pricing, digital economy and permanent establishments in the recent BEPS reports. See BEPS 2015 Final Reports, supra note 9. 85 Despite the use of the term “preventing harmful tax competition,” proposals rarely rise to suggestions to actually coordinate tax rates across countries and settle for tackling tax rates that are “too low” and other policies (such as ring fencing) that are perceived as “harmful.” oecd, harMful tax coMPetition: an eMerging gloBal issue 14 (1998), http://www.oecd.org/tax/transparency/44430243.pdf. The European Union as well introduced a code of conduct aimed at tackling harmful tax competition and coordinating action on the European level. In 1996 the European Economic and Financial Affairs Council (ECOFIN) decided to try to seek a coordinated solution for harmful tax competition. In 1997 The Code of Conduct for business taxation was adopted. Conclusion 98/C 2/01 of the COFIN Council Meeting (Jan. 12, 1997), http://eur-lex.europa.eu/ resource.html?uri=cellar:d2cdddef-e467-42d1-98c2-31b70e99641a.0008.02/ DOC_1&format=PDF. 28 Theoretical Inquiries in Law [Vol. 18:1 tax, there seems to be no “natural” locus for pursuing justice under Nagel’s political conception — i.e., where coercion and co-authorship converge. For those interested in the promotion of justice (or sustainability of the state as a legitimate institution), the question that arises is, which is the right way to go? 1. A Global State One (extreme) option would be to facilitate co-authorship on a larger scale: to demand, in the name of justice, the imposition of duties of justice on the multilateral level. To some, even sheer cooperative efforts and interdependence of states in a multilateral regime would be sufficient to give rise to a supranational duty of justice. But proponents of strict political justice would assert that this is not enough to justify such a duty of justice,86 for only the institution of a global or multilateral state (or something close thereto) would be thus obligated. Surely multilateral cooperation establishing a global state or federation of states would have to adhere to principles of justice in its treatment of its constituents in order to acquire legitimacy. Such a regime could, indeed, be the best response to the justice concerns of cosmopolitans and statists alike; however, it is not only an unfeasible solution but probably also an unwarranted one. A global state would likely not be particularly responsive enough to its constituents’ preferences, suffer from an excessive concentration of power, and be lacking in accountability, as well as have a serious efficiency problem. 2. Re-empowering Sovereign States A solution often advocated in international tax discussions for overcoming the justice deficiency is to use the multilateral cooperation to re-empower states to domestically pursue justice within their borders.87 Yet can such a 86 Nagel, supra note 18, at 140, would probably see even tax cooperation as not demanding political justice: Justice applies, in other words, only to a form of organization that claims political legitimacy and the right to impose decisions by force, and not to a voluntary association or contract among independent parties concerned to advance their common interests. I believe this holds even if the natural incentives to join such an association, and the costs of exit, are substantial, as is true of some international organizations and agreements. There is a difference between voluntary association, however strongly motivated, and coercively imposed collective authority. 87 See, e.g., Brauner, supra note 7: The BEPS project’s most fundamental insight to date has been noting the failure of this paradigm. Countries, even those with the strongest economies, are not powerful enough to satisfactorily enforce their tax laws pursuant to the current regime. By definition, unilateral action, regardless of its substance, 2017] International Tax and Global Justice 29 hybrid bi-level model for implementing duties of justice in itself be justified and, if so, under what terms? The path to answering this question seems to lead back to Nagel’s basic inquiry: Should we view cooperation as essentially a matter of “bargaining,” or has “a leap . . . been made to the creation of collectively authorized sovereign authority”?88 The former option seems to infer that cooperation is justified per se (at least as long as it is not coerced). The latter implies an autonomous duty of justice that is imposed beyond state boundaries, but on the condition that a sovereign authority has emerged on the multinational level. The conventional discourse in international taxation implicitly takes the former view, namely, that these are sovereign states bargaining over cooperation — and, hence, presumably unencumbered by any duty of justice that transcends state duties. Under this view, the proposed cooperative regime seems like the perfect statist solution: each of the states is responsible for justice among its own constituents, and they all cooperate to achieve the mutually beneficial goals of domestic redistribution. They do not owe each other or the constituents of other states anything beyond the express agreement reached through the bargaining. This position also seems to accord fully with Nagel’s position on international institutions: [International institutions] are not collectively enacted and coercively imposed in the name of all the individuals whose lives they affect; and they do not ask for the kind of authorization by individuals that carries with it a responsibility to treat all those individuals in some sense equally. Instead, they are set up by bargaining among mutually self-interested sovereign parties. International institutions act not in the name of individuals, but in the name of the states or state instruments and agencies that have created them. Hence, the responsibility of those institutions toward individuals is filtered through the states that represent and bear primary responsibility for those individuals.89 By taking a statist-like position, the rhetoric of international tax cooperation obviates the desirability of cooperation, endorsing it as an obviously right thing to do in terms of justice (since it presumably promotes domestic justice), and regards lack of cooperation by any single state to be opportunistic: as taking a hardball bargaining position rather than a principled call for justice amongst states. After all, the argument goes, if a state has the option of increasing its cannot succeed, and consequently, international coordination of tax policies is required as a condition for any chance to implement substantial reform. 88 Nagel, supra note 18, at 141. 89 Id. at 138. 30 Theoretical Inquiries in Law [Vol. 18:1 tax collection (and thereby presumably affording domestic redistribution) by cooperating with other states, why would it pass it up? Distributive disparities between states or between their constituents are presumed to be irrelevant to this discussion, since states have an obligation of justice only towards their own constituents — not towards other countries or their constituents. Hence, calls for a more level playing field between developed and developing countries, for example, are not seriously addressed, or rather, addressed as a plea for charitable treatment rather than a duty of justice. B. Justice for All (States) The statist position presented above could hold were each state to have independent legitimacy in imposing its own tax system — that is, could successfully provide assurances for its collectively co-authored regime. However, as has been explained, this is not the case under tax competition, where individual states struggle to enforce their own tax systems and where the rules of taxation are, to a large degree, determined by market conditions, including the elasticities of supply and demand for mobile residents and factors of production. I challenge this conventional view, arguing that a multilateral regime that enables states to retain their legitimacy can only be legitimate itself if it ensures domestic justice for the constituents of all the cooperating states. Specifically, to comply with this requirement of justice, the multilateral regime must set terms that ensure the welfare of the weakest segments in poor countries that might otherwise be harmed by this cooperation. To understand why, we can return again to Nagel and the traditional view: Nagel suggests that a supranational duty of justice arises only if the multilateral cooperation leads to the creation of a collectively authorized sovereign authority. Otherwise, no such duty of justice arises for the multilateral regime. The cooperative regime derives its legitimacy from the legitimacy of the cooperating states. As Nagel puts it, a global or regional network does not have a similar responsibility of social justice for the combined citizenry of all the states involved, a responsibility that if it existed would have to be exercised collectively by the representatives of the member states. Rather, the aim of such institutions is to find ways in which the member states, or state-parts, can cooperate to better advance their separate aims, which will presumably include the pursuit of domestic social justice in some form. Very importantly, they rely for enforcement on the power of the separate sovereign states, not of a supranational force responsible to all.90 90 Id. at 139-40. 2017] International Tax and Global Justice 31 Recall, however, that because of competition, states have lost a significant extent of their coercive power and, in particular, their ability to unilaterally provide equal treatment to their constituents (at least insofar as tax is concerned). In many cases, it would be only through the cooperative accord that they could regain these powers. Cooperation in such cases is more than a sheer preference of the states or a way to promote their aims through bargaining. Rather, the cooperation goes to the heart of states’ legitimacy. Without the ability to ensure the collective action of its citizenry and to treat them with equal respect and concern, the state can no longer legitimately employ its coercive powers. Notably, furthermore, without cooperation with other states, the state cannot even achieve such enforcement. In such cases, I argue, the question of the legitimacy of the multilateral regime itself arises: can a regime intended to provide the state with fundamental legitimacy be legitimate based solely on the — in itself deficient — legitimacy of the (other) state? And if so, does such a cooperative regime — which transcends the state in order to preserve the cooperating states’ legitimacy — require independent justification? When states initiate multilateral cooperation to restore their legitimacy, they each entrust the multilateral regime with the authority to act on their behalf so as to enable them to provide their constituents with justice. This is the sine qua non for their legitimacy. They incorporate their otherwise impaired individual coercive power into a collective regime that encompasses more power than the sum of its components’ power. Hence — arguably — they can each treat their own citizens justly.91 But what if the agreement undermines justice within some of the countries? On the face of it, according to the statist rationale, the countries gaining power should not even consider whether the agreement brings about injustice in another country, as long as all the states agree to the multilateral agreement. Recall that according to the statist position, justice is considered to be completely mediated by the states, and the agreement between states raises no independent duty of justice beyond humanitarianism. But does such an agreement truly completely mediate justice even under the statist rationale? I believe it does not. Absent the ability to ensure justice for their constituents, states lack the legitimacy to act on behalf of their constituents. Their very ability to act as sovereigns — for our purposes — is undermined. Hence, they cannot be trusted to mediate justice when contracting with other states. Thus, although it is true that states do not have an independent duty of justice towards the citizens of other countries (that is, they are under no duty 91 Non-statists will probably argue that this type of cooperation, in and of itself, imposes a duty of justice beyond the state. Here, however, I would like to focus on the statist position. 32 Theoretical Inquiries in Law [Vol. 18:1 to treat such constituents with equal concern), I believe they cannot ignore the duty of their contracting partners to treat their own citizens with equal concern either. In other words, even though the intergovernmental agreement does not give rise to new normative requirements, it cannot purport to act justly by relying on their partner-states to completely mediate justice if such states purport to implicate the will of their own people without treating them with equal concern. Unlike other agreements between legitimate sovereigns, a multilateral arrangement that provides legitimacy in one country by increasing illegitimacy in another cannot provide the necessary justification since, although officially based on the consent of the two countries, such consent is no guarantee for justice. For justice to prevail, I argue, a multilateral regime should be bound by the ability of each state to supply domestic justice. A regime that does not actually support states’ ability to provide domestic justice is illegitimate because the states — on which the regime’s legitimacy is grounded — similarly lack legitimacy in the absence of such justice. This position will probably be endorsed by non-statists (who may argue that the multilateral accord in itself imposes increased such duties of justice), but — I argue — statists as well cannot hide behind the alleged state-mediated justice, when the multilateral accord in itself creates injustice within some of the cooperating states. The rhetoric of multilateral cooperation makes it sound as though any cooperation will inevitably be justice-promoting and, therefore, desirable. However, the fact of the matter is that this is not necessarily the case, for not all states are cut from the same cloth. Hence, cooperation that may be unquestionably justice-promoting for some states could result in completely different outcomes for other states. To demonstrate this, I consider an admittedly hypothetical version of harmonization and examine whether cooperation among nations designed to sustain domestic justice does, indeed, necessarily produce a just solution. Imagine a multilateral regime in which the cooperating states agree to impose a unified tax of X% above the value of the public goods each state provides, in order to facilitate redistribution (that is, the X% collected by each state will be progressively distributed among its constituents). Proponents of harmonization present this result as indisputably just, as it allows states to redistribute wealth domestically by taxing mobile capital. Such a scheme could, however, entail asymmetric results for residents of different countries. While in some countries (call them “rich countries”), which are mainly capital-exporting countries, the government will, indeed, be better able to collect taxes from capital owners (and thus able to redistribute wealth), this will not be the case in what we would call “poor countries,” which are primarily capital-importing countries and, I would assume, more typically 2017] International Tax and Global Justice 33 developing countries. In these latter countries, local factors of production (most importantly labor) benefit the most from foreign investments.92 The increased tax imposed by a universal regime on cross-border investments (and the tax wedge it creates) could reduce the level of foreign investment in such capital-importing countries and, with it, the demand for local labor. This regime therefore comes at a cost to local labor. True, a harmonized tax regime may allow host countries to collect more tax revenue from incoming investments and to collect taxes from their own capital owners investing overseas. Such taxes, however, will not necessarily compensate local factors of production for the lost inbound investments, for a number of reasons. First, the amount of outbound investments (and tax revenues collected therefrom) might be small relative to the inbound investments being lost. Second, the enforcement abilities of such countries on foreign-source income might be limited. Thus, even if they have the right to tax foreign-source income, they might not be able to enforce this. Third, these countries might rely on consumption taxes rather than income taxes; thus, again, the right to tax income will not necessarily be translated into greater or more progressive tax revenues. And fourth, they might suffer from capture by the rich as well as by multinational corporations or even from corruption; thus, the taxes that do get collected may be used to benefit interest groups rather than the public at large. If host countries are, in fact, unable to collect enough taxes to compensate labor for their lost wages, cooperation might not be a good idea from a distributive perspective. Although in residence countries, governments may be better able to tax capital owners in order to redistribute wealth to labor, in host countries, labor may be harmed by the coordinated regime, with labor in those countries paying for the redistribution to labor in residence countries. Of course, residence countries could give a larger share of the increased revenues to host countries and thereby balance the gains and losses across national borders. But should they? Assuming the residence countries wish to do the right thing, is there a duty of justice for them to (re)distribute these benefits? This, of course, is the question at the heart of this Article: Does the cooperation in itself impose a duty of justice on the cooperating states? Cosmopolitans will surely support such redistribution between states. In fact, they would likely recommend completely ignoring any state-structured cooperation and have the multilateral mechanism directly redistribute wealth among the people of all countries. 92 By contrast, local capital owners in poor countries may actually lose from a higher supply of capital from foreign investments (since the return to capital within the country may fall). 34 Theoretical Inquiries in Law [Vol. 18:1 For statists, however, the answer is more complex. I believe that even statists would not deny that such a multilateral regime is no more than a bargaining move by sovereign states and therefore entails no duty of justice. When harmonization helps (some) states to promote domestic justice, it seems desirable. If, however, it impairs justice in other countries, the cooperation agreement itself loses legitimacy. When the regime promotes domestic justice within some of the states but does injustice in others, it seems that the cooperating states cannot hide behind the argument that the will of the people of such states is completely mediated by the state. As stated above, the cooperating states cannot entrust the multilateral regime with anything short of the power to enable them to treat their constituents justly. The (legitimate) power to help other states regain their coercive power is accompanied by a requirement that this bargained-for power is not used to treat domestic constituents unjustly. Otherwise, (rich) states will be using other (poor) states’ illegitimate coercive powers in order — allegedly — to gain legitimate power to promote justice within their own borders. If the multilateral regime undermines domestic justice in some states, other states cannot legitimately gain coercive powers with the help of that regime. Thus, an international regime would not be legitimate, even when it brings justice to some states, if it renders injustice in other states.93 My argument suggests that when (rich) states need the cooperation of other (poor) states in order to promote domestic justice, their bargaining position is constrained by the requirement that justice within their cooperating partners not be compromised. It is — I argue — unjust for a state to promote domestic justice at the expense of justice in other states. A regime that is built on injustice in some states cannot resort to the theory of bargaining to claim that justice is completely mediated by sovereign states. The states that operate unjustly are illegitimately using their sovereign powers (i.e., their coercive as well as their bargaining power). The rich states cannot legitimize their justice-based domestic coercive power on an agreement that causes domestic injustice within their cooperating states. A multilateral regime established through cooperation is justified in promoting justice if and only if it improves (or at least does not worsen) the welfare of the least well-off in all cooperating states.94 Consequently, a multilateral agreement that pursues harmonization will only be valid if it ensures domestic justice in all states involved. 93 Nagel considers a similar arrangement (allowing poor countries to preserve their comparative advantage in low-cost labor in trade agreements) to be humanitarian in nature rather than a duty of justice. 94 See supra note 82. 2017] International Tax and Global Justice 35 conclusIon Although in theory, states could cooperate to maximize global welfare and justly distribute it by transferring wealth from richer to poorer countries, the prevailing decentralized nature of international taxation creates some serious coordination problems. Assuming transfer payments between states to be utopian and that promoting redistribution in rich countries at the expense of the poor in poor countries (without such transfer payments) is unjust, I suggest (in my forthcoming book95) a third and, I believe, more viable option, namely, to perfect, rather than curtail, tax competition. I propose that countries work together in an effort to perfect tax competition by targeting market failures such as externalities, information asymmetries, and strategic behavior. These classic inhibitors of competition translate, in international taxation, into issues of tax avoidance and tax evasion, local corruption, and governmental cartels. Some of these issues (particularly tax evasion and avoidance) are currently being given serious attention in international tax policy circles (notably the BEPS report); others (corruption and cartels) less so. Although avoidance, evasion and corruption could encourage the flow of more capital into certain host countries, both create externalities, so that instead of paying the “real” competitive price for public services, taxpayers are free-riders who enjoy the benefits of their countries of residence (in the case of evasion) and/or of their host countries (in the case of corruption) at little or no cost. Evasion and corruption also increase transaction costs and entail information asymmetries. Hence, cooperatively fighting corruption and evasion through such measures as a global exchange of information could bolster efficient competition. To avoid cartelistic behavior among states, a multilateral antitrust agency could be created. Ideally, such an agency would work to disband cartels of states that are crowding out competitors, to prevent them from increasing cartel profits at the expense of less powerful actors, and to reduce governmental waste. The likelihood of securing such a limited and perhaps less glorious type of cooperation is unclear. Yet there is certainly some room for optimism: such a regime would potentially increase the global welfare pie by diminishing transaction costs, free-riding, and other market failures, as well as more justly distribute this added value. Although this type of cooperation would also come up against strategic challenges, I believe a careful design of the governance of these cooperative mechanisms could help to secure this more modest, but more distributively-just regime. 95 tsilly dagan, international tax Policy: BetWeen coMPetition and cooPeration (forthcoming 2017). _Ref465631212 _Ref452727422 _Ref426272602 _Ref426655557 _Ref426688526 _Ref426446955 _Ref426641086 _Ref426641933 _Ref452727929 _Ref218067530 _Ref218067441 _Ref447970224 _Ref390974480 _Ref465659298 
work_s3kngg5klbah3ph6zslnfzpq3y	----	033-034_Health_intro-pdf.qxd I n a recent global survey commissioned for the Millennium Summit of the Unit- ed Nations, people around the world consistently mentioned good health as what they most desired. This preeminent concern with health is due no doubt both to the value that people attach to health in itself and to their recognition of its importance for pur- suing their individual and collective projects. While people agree on the value of health, policymakers, activists, and social theorists disagree sharply about the appropriate goals and optimal design of health systems. Some- times disagreements are purely instrumen- tal, relating only to the best means to achieve shared objectives. More often, however, they are a result of deeper differences concerning the role that a person’s health plays in deter- mining the quality of his or her life and the extent to which ill health and inequalities in health reflect injustices in social institutions. Discussions of the relationship between justice and health have focused primarily on questions such as how health systems should be structured and financed and how public resources spent on health should be balanced against other social goals. But recent studies indicating close connections between socio- economic status and ill health have led many to recognize that the inability to achieve good health may result not only from lack of access to health care or other failures of domestic health systems, but also from inadequate social arrangements of different kinds and at many levels. In spite of this substantial broadening of emphasis, exploration of the links between justice and health has continued to focus on problems that arise within societies, and there are important reasons for further extending these discussions from the societal to the global level. Societies interact within an increasingly rich framework of political and economic institutions that significantly affect the health prospects of all people. Hence, focusing solely on the justice of domestic health regimes may lead to a neglect of the ways that these institutions affect the capaci- ties of societies to secure good health for their people. Moreover, health problems in one part of the world can lead to health problems elsewhere, and it will often be particularly dif- ficult to manage them effectively and equi- tably without the coordinated response of many societies, among which burdens are fairly allocated. Finally, while there is room for reasonable disagreement among different societies that value health in different ways, and that allocate resources accordingly, there are limits to pluralism concerning global health regimes. If some countries operate a national health service while others embrace privatization, both may have their way. But such mutual accommodation fails when some countries push for strong protection of pharmaceutical patents worldwide while others pursue the right to grant compulsory licenses for essential medicines, or when some countries insist that international insti- tutions be granted the resources and author- ity to set research and development agendas while others deny the legitimacy of these arrangements. There is a need, then, to develop standards for assessing global rules and institutions that—though tolerant of different domestic 33 Health and Global Justice Mira Johri and Christian Barry Repinted from Ethics & International Affairs 16, no. 2. © 2002 by Carnegie Council on Ethics and International Affairs. https://doi.org/10.1111/j.1747-7093.2002.tb00394.x Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1111/j.1747-7093.2002.tb00394.x https://www.cambridge.org/core https://www.cambridge.org/core/terms health regimes—express globally sharable values and priorities. In April 2002 the Carnegie Council’s Justice and the World Economy Program sponsored a workshop on public health and international justice; its aim was to contribute to this task by engaging a range of scholars and health-policy special- ists in the attempt to incorporate public- health concerns into a broader contemporary debate about global justice. Our initial discussions centered on ques- tions concerning the definition of appropri- ate international health goals. What information about health, for example, should be deemed relevant for assessing international policies, institutions, and rules? Should these be designed to promote life expectancy, the receipt of health-care resources, opportunities for good health, and access to health-care resources, or rather to secure the informed consent of patients and minimize the incidence of coercion within health systems? And what distributive considerations are relevant? Should we aim to establish some universal minimum health standard? Should we strive to achieve equal opportunity for health within or across soci- eties? Or something else still? Important as these issues undoubtedly are, it was clear that the primary source of many practically significant controversies concern- ing international health today revolve around the notion of responsibility—specifically, deciding how responsibility to provide relief for ill health should be parceled out. Each essay in this section focuses on dif- ferent aspects of the theme of responsibility for public health. Onora O’Neill suggests that preoccupation with medical ethics and health-care provision within developed countries has led many to misidentify rele- vant health standards and to overlook ques- tions concerning the obligations of state and nonstate actors to address health problems in poorer parts of the world. Christian Barry and Kate Raworth argue that recent debates concerning access to HIV/AIDS drugs are rooted in disagreements about the appro- priateness of different principles for assign- ing responsibility for health, and they indicate some of the difficulties in applying theories of responsibility to global prob- lems. Daniel Wikler challenges the thesis that, because health depends on individual lifestyle choices, social and international responsibilities to restore health are quite limited. Thomas Pogge claims that we have especially stringent responsibilities to reme- dy health problems to which we contribute, regardless of whether those affected are compatriots or foreigners. Finally, Gopal Sreenivasan develops a policy proposal for an international tax that, he argues, will pro- mote the health of poorer populations with- out placing unacceptable demands on anyone. Most everyone agrees that there is some- thing morally unacceptable about the fact that 34,000 children under the age of five die daily from hunger and preventable diseases, or that some 880 million people lack access to basic health services. The essays in this section suggest that fruitful work on the theme of “health equity” must complement and extend beyond ongoing technical dis- cussions of appropriate international health goals and standards by engaging in detail with the difficult question of how responsi- bilities for the alleviation of global health problems should be allocated. 34 https://doi.org/10.1111/j.1747-7093.2002.tb00394.x Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:25, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1111/j.1747-7093.2002.tb00394.x https://www.cambridge.org/core https://www.cambridge.org/core/terms 
work_s7xguxkrxran7pyjdtn3sa4vja	----	Global Health and Justice Bioethics ISSN 0269-9702 (print); 1467-8519 (online) Volume 19 Numbers 5–6 2005 © Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ , UK and 350 Main Street, Malden, MA 02148, USA. Blackwell Publishing Ltd.Oxford, UK and Malden, USABIOTBioethics0269-9702Blackwell Publishing Ltd. 20052005195–6460475Articles GLOBAL HEALTH AND JUSTICEJAMES DWYER GLOBAL HEALTH AND JUSTICE JAMES DWYER ABSTRACT In Australia, Japan, Sweden, and Switzerland, the average life expectancy is now greater than 80 years. But in Angola, Malawi, Sierra Leone, and Zimbabwe, the average life expectancy is less than 40 years. The situation is even worse than these statistics suggest because average figures tend to mask inequalities within countries. What are we to make of a world with such unequal health prospects? What does justice demand in terms of global health? To address these questions, I characterize justice at the local level, at the domestic or social level, and at the international or global level. Because social conditions, structures, and institutions have such a profound influence on the health of populations, I begin by focusing attention on the relationship between social justice and health prospects. Then I go on to discuss health prospects and the problem of global justice. Here I distinguish two views: a cosmopolitan view and a political view of global justice. In my account of global justice, I modify and use the political view that John Rawls developed in The Law of Peoples . I try to show why an adequate political account must include three duties: a duty not to harm, a duty to reconstruct international arrangements, and a duty to assist. In Australia, Japan, Sweden, and Switzerland, the average life expectancy is greater than 80 years. In Angola, Malawi, Sierra Leone, and Zimbabwe, the average life expectancy is less than 40 years. What are we to make of a world with such unequal health prospects? What does justice demand in terms of global health? I have thought about those questions for many years. In fact, I have fallen into a pattern that is both commendable and deplor- able. I grow concerned, study the causes, think about the moral implications, and take some action. Then, gradually, I slip back into my daily concerns and work. These concerns and work are GLOBAL HEALTH AND JUSTICE 461 © Blackwell Publishing Ltd. 2005 not without merit, but they don’t provide much space for activities that promote global health and justice. It is time to try again, to think about the issues afresh, and to dedicate myself anew. This time I want to think things through in a more basic way and to act in a more sustainable way. The purpose of this paper is to articulate, for myself and others, a view of global health and justice that could guide action. I want to develop a perspective that helps us approach the problems, iden- tify the important points, and evaluate courses of action. To begin, I shall describe differences in health prospects in the world. Then I shall frame the issues in terms of justice. In the discussion of justice, I shall interpret and extend the work that John Rawls did on global justice. HEALTH PROSPECTS IN THE WORLD Most of us are vaguely aware of the large inequalities in health that exist in the world, but we don’t often reflect on the extent, nature, and implications of these inequalities. So I want to describe some measures of population health that illustrate these inequalities. And I want to recount these measures in a way that allows us to grasp some of the human meaning – some of the effects on people’s lives. One measure of population health is average life expectancy. This is simply the number of years that people who are born now can expect to live. 1 As I said before, people born in Australia, Japan, Sweden, and Switzerland can now expect to live more than 80 years. In the United States, life expectancy is 77 years. In 36 countries, life expectancy is greater than 75 years. While people born in these countries can expect to live long, relatively healthy lives, people born in other countries cannot. Life expectancy in Sierra Leone is 35 years; in Angola and Malawi, 36 years; in Zambia and Zimbabwe, 37 years. Although these are the only countries with life expectancies of less than 40 years, there are 30 countries in which life expectancy is less than 50 years. Another measure of population health is the under-five mor- tality rate. This is simply the number of children, per 1,000 live births, who will die before they are five years old. 2 In Denmark, 1 The statistics on life expectancy are drawn from the WHO. 2002. The World Health Report 2002 . Geneva. World Health Organization. 2 The statistics on under-five mortality and maternal mortality are drawn from UNICEF. 2002. The State of the World’s Children 2003 . New York. The United Nations Children’s Fund. 462 JAMES DWYER © Blackwell Publishing Ltd. 2005 Iceland, Norway, Singapore, and Sweden, fewer than five out of 1,000 children will die before they are five years old. In the United States, the under-five mortality rate is eight. In 42 coun- tries the rate is less than 10. But in other countries, children die at a high rate. In Sierra Leone, the under-five mortality rate is 316. Although Sierra Leone is the only country with a rate above 300, 50 countries have a rate greater than 100. In these countries 10% of all children will die before they reach their fifth birthday. Even after studying health prospects in low-income countries, I find one statistic particularly shocking: the number of women who will die of causes related to their pregnancies. Israel, Kuwait, Sweden, and Switzerland report maternal death rates of five per 100,000. The rate in the United States is eight. Twenty- eight countries have rates of less than 10. But in other places, pregnant women face grave risks. In the Central African Repub- lic, Malawi, Mozambique, Rwanda, and Sierra Leone, the mater- nal mortality rate is greater than 1,000. In these countries, more than 1% of pregnant women will die of causes related to their pregnancies. This risk of death is repeated with each pregnancy. Life expectancy, under-five mortality, and maternal mortality are useful measures, but health prospects are actually worse than these measures suggest. Because these measures are all based on mortality, they do not take into account morbidity. They ignore the suffering, impairment, and lost opportunity that comes with illness. Measures that do take these factors into account – mea- sures that use healthy life expectancy or disability-adjusted life years – suggest a grimmer picture. The situation is even worse than I described because all the measures I cited are averages, and averages tend to mask inequal- ities within a country. The poor and marginalized within a country often have shorter life expectancies, higher mortality rates, and more illness than average. Inequalities vary from country to coun- try, but measures of health inequalities in the United States give us some idea of the inequalities that we might find in other countries. A region by region comparison in the United States found that life expectancy varied by 13 years among women and 16 years among men. 3 This regional variation is correlated with race, income, and other social factors. 3 C. Murray et al. 1998. U.S. Patterns of Mortality by County and Race. Cam- bridge, MA. Harvard Center for Population and Development Studies. GLOBAL HEALTH AND JUSTICE 463 © Blackwell Publishing Ltd. 2005 JUSTICE Most of us react to measures of population health because we are able to identify with other people’s needs, concerns, and condi- tions. Our initial reactions are signs of ethical sensibility, but by themselves they do not take us very far. They need to be devel- oped, supplemented, and guided. Here an account of justice may prove useful. It could help to orient us in experience, guide sustainable action, and integrate ethical concerns into political institutions. It could even function to articulate social hope. I shall try to use, interpret, and extend some of John Rawls’s work to address issues of global health. Because Rawls does not want to presuppose traditional views about the sovereignty of states or nations, he refers to his work on global justice as the law of peoples. He makes explicit the ideas that motivate this work: Two main ideas motivate the Law of Peoples. One is that the great evils of human history – unjust war and oppression, reli- gious persecution and the denial of liberty of conscience, star- vation and poverty, not to mention genocide and mass murder – follow from political injustice, with its own cruelties and callousness . . . The other main idea, obviously connected with the first, is that, once the gravest forms of political injustice are eliminated by following just (or at least decent) social policies and establishing just (or at least decent) basic institutions, these great evils will eventually disappear. 4 Rawls tries to specify a conception of justice that will address the great evils that destroy lives and plague human history. To the list of evils that destroy lives and plague human history, I want to add two: ill health and premature death. That seems plausible enough. But I also want to suggest that these evils follow from political injustice. That seems implausible at first. Don’t people die of diseases and accidents, caused by microbes and mishaps? Yes and no. Health depends on susceptibility to illness, exposure to risks, access to resources and care, the social conse- quences of ill health, and many other factors. But all these factors are influenced by the justice of the social environment. Whereas the health of an individual may depend on particular susceptibil- ities or exposures, the health of a population often depends on justice. Or so I shall argue. 4 J. Rawls. 1999. The Law of Peoples. Cambridge, MA. Harvard University Press: 6–7. 464 JAMES DWYER © Blackwell Publishing Ltd. 2005 To begin, it is useful to distinguish three levels at which issues of justice can arise: the local level, the domestic or social level, and the international or global level. Rawls explains: Altogether then we have three levels of justice, moving from inside outward: first, local justice (principles applying directly to institutions and associations); second, domestic justice (prin- ciples applying to the basic structure of society); and finally global justice (principles applying to international law). 5 Injustices at all three levels can have a profound influence on health. Consider, for example, the problem of malnutrition. A child may be malnourished because in her particular family, boys are fed first and given more to eat. A marginalized group may be malnourished because of the way pastures and agricultural lands are distributed in its society. Groups within society may be mal- nourished because their relative situation within society has been made worse by war or global trade. Thus people’s nutritional status and susceptibility to disease may be influenced by the jus- tice of local, social, and global arrangements. Rawls cautions us not to assume that one simple set of princi- ples should apply to all levels. He writes: One should not assume in advance that principles that are reasonable and just for the basic structure are also reasonable and just for institutions, associations, and social practices gen- erally. While the principles of justice as fairness impose limits on these social arrangements within the basic structure, the basic structure and the associations and social forms within it are each governed by distinct principles in view of their differ- ent aims and purposes and their peculiar nature and special requirements. Justice as fairness is a political, not a general, conception of justice: it applies first to the basic structure and sees these other questions of local justice and also questions of global justice (what I call the law of peoples) as calling for separate consideration on their merits. 6 Although the different levels may call for different principles, there are relationships to keep in mind: just as principles of social justice rightfully limit some local practices, principles of global justice may rightfully limit some national practices. 5 J. Rawls. 2001. Justice as Fairness. Cambridge, MA. Harvard University Press: 11. 6 Ibid. p. 11. GLOBAL HEALTH AND JUSTICE 465 © Blackwell Publishing Ltd. 2005 In thinking about global health and justice, we could begin at any level. Where we actually begin will depend on our practical purposes and philosophical convictions. I shall begin at the social level for two reasons. First, I believe that the basic structure of a society has a profound influence on the health prospects of sub- populations within that society. Secondly, I believe that beginning with social justice will help to clarify the nature and role of global justice. SOCIAL JUSTICE To illustrate the influence that social structures and organizations have on health prospects, I want to discuss a problem that I mentioned before. Malnutrition remains a serious health prob- lem, perhaps the most serious health problem, in countries with high mortality rates. The World Health Report 2002 estimates that, in countries with high mortality rates, 14.9% of the burden of disease is due to underweight, 3.2% to zinc deficiency, 3.1% to iron deficiency, and 3.0% to vitamin A deficiency. 7 In total, almost 25% of the burden of disease is due to malnutrition. Chronic malnutrition and outright starvation are rarely due to a lack of resources or to declining food production within a country. Amartya Sen and others have shown that famines and malnutrition are often due to the way food, entitlements, and power are distributed. 8 The real problem is that governments and privileged groups do not care enough to create systems of entitlements to supplement the food supplies that marginalized groups have. Although the particular cause of a particular illness may be a vitamin deficiency, the root cause is often embedded in the social structure. What is true of malnutrition is also true, to a greater or lesser degree, of many health problems in countries with high mortality rates. One could examine, for example, the role that social struc- tures and gender inequalities play in the HIV epidemic. Although Rawls does not discuss health prospects, his general point applies to health: the problem is often not the lack of natural resources. Many societies with unfavorable conditions don’t lack for resources. Well-ordered societies can get on with very little; their wealth 7 World Health Report , op. cit. note 1, p. 162. 8 A. Sen. 1981. Poverty and Famines . Oxford. Clarendon Press; J. Drèze & A. Sen. 1989. Hunger and Public Action . Oxford. Clarendon Press; F. Lappé & J. Collins. 1986. World Hunger: Twelve Myths . New York. Grove Press. 466 JAMES DWYER © Blackwell Publishing Ltd. 2005 lies elsewhere: in their political and cultural traditions, in their human capital and knowledge, and in their capacity for political and economic organization. Rather, the problem is commonly the nature of the public political culture and the religious and philosophical traditions that underlie its institu- tions. The great social evils in poorer societies are likely to be oppressive government and corrupt elites; the subjection of women abetted by unreasonable religion, with the resulting overpopulation relative to what the economy of the society can decently sustain. Perhaps there is no society anywhere in the world whose people, were they reasonably and rationally gov- erned, and their numbers sensibly adjusted to their economy and resources, could not have a decent and worthwhile life. 9 What allows societies to have relatively healthy populations is not the natural resources they possess, but the social organizations they develop. Many examples support the claim that social factors are more important than natural resources. Japan and Sweden are hardly distinguished for their natural resources, yet they have very good measures of population health. The United States enjoys consid- erable natural resources and great economic wealth, but usually ranks around 20th to 30th in measures of population health. The most telling examples of all are societies that have achieved rela- tively good measures of population health in spite of limited economic wealth and moderate natural resources. The state of Kerala, in India, is a good example. Its economic wealth, in terms of GNP, is less than $1,000 per capita. It does possess some natural resources, but no more than many low-income countries. Its spending on health care per person per year is less than $50 (as compared with over $4,000 per year in the US). And yet Kerala’s measures of population health are relatively good. Life expect- ancy at birth is 73 years. 10 Although examples can illustrate the possibility of achieving good population health with limited resources, they don’t really explain the relationship between social justice and population health. I want to suggest that this relationship is as much concep- tual as empirical. Good measures of population health do not always imply a high level of social justice. A society might have good measures of average health, and even a high degree of 9 J. Rawls 1999. Collected Papers . Cambridge, MA. Harvard University Press: 559. 10 Planning Commission. 2001. National Human Development Report 2001 . New Delhi. Government of India: 218. GLOBAL HEALTH AND JUSTICE 467 © Blackwell Publishing Ltd. 2005 equality in health, but deny its members political liberties and opportunities that are central to the idea of justice. But poor measures of population health often imply serious social in- justice. If a society possesses a moderate amount of natural resources, has access to basic scientific knowledge, and lives under fairly usual conditions, but allows basic social institutions to promote the privileges of some groups when reformed institu- tions could ensure the basic needs of all groups, then it fails as a just society. GLOBAL JUSTICE The danger of focusing on the role of social institutions within a country is that we’ll end up blaming the victims. We might not blame the actual victims – the marginalized people in low-income countries – but we will focus on the political traditions and privileged groups in those countries, while we ignore the international actions and structures that contribute to the situation. There are two ways to avoid this danger. One way is to develop a cosmopolitan view of global justice. Another way is to develop an appropriately political view of global justice. Many accounts of global justice adopt a cosmopolitan perspec- tive. They tend to deny that political boundaries have any moral significance and to view all human beings as world citizens. Some cosmopolitan accounts expand and emphasize the idea of human rights, the things that people are entitled to in virtue of their status as human beings. In these accounts, all matters of health become issues of human rights. Other cosmopolitan accounts, by arguing that the same principles of distribution should apply at both the global and national level, tend to conflate global justice and social justice. I respect the ethical concern that lies behind cosmopolitan accounts, but I want to explain how similar concern might be expressed in an account of global justice that is less cosmopolitan and more political. Rawls recognizes that political boundaries seem arbitrary, but this recognition does not lead him to adopt a cosmopolitan view. He writes: It does not follow from the fact that boundaries are historically arbitrary that their role in the Law of Peoples cannot be justi- fied. On the contrary, to fix on their arbitrariness is to fix on the wrong thing. In the absence of a world-state, there must be boundaries of some kind, which when viewed in isolation will 468 JAMES DWYER © Blackwell Publishing Ltd. 2005 seem arbitrary, and depend to some degree on historical cir- cumstances. 11 Although boundaries depend on historical contingencies, a defined territory may allow a people to exercise political auton- omy and create just social institutions. The idea of a world government does not appeal to Rawls. He writes: I follow Kant’s lead in Perpetual Peace (1795) in thinking that a world government – by which I mean a unified political regime with the legal powers normally exercised by central governments – would either be a global despotism or else would rule over a fragile empire torn by frequent civil strife as various regions and peoples tried to gain their political freedom and autonomy. 12 To reject a world government is not to reject federations, regula- tions, ethical duties, and limits to sovereignty. Rawls attaches some significance and function to political boundaries; he does not view people as world citizens in a world government, and he adopts a somewhat different standard for social justice and global justice. In these ways, his view is more political and less cosmopolitan. But his view is political in a deeper sense. When he wrote A Theory of Justice , he suggested that his account of justice was a comprehensive moral view. Later he emphasized that his account of justice is a political account that appeals to the idea of public reason and that recognizes the fact that a democratic culture will be marked by a plurality of reason- able comprehensive accounts of the good and the right. His work on global justice continues in this vein. It recognizes a plurality of reasonably just and decent societies, gives a prominent place to political autonomy, looks for an overlapping consensus, and appeals to the idea of public reason. But how can a political account of global justice avoid the danger I noted? An adequate political account needs to empha- size three kinds of duties: a duty not to harm, a duty to recon- struct, and a duty to assist. When considering global health, and the great disparities that exist between countries, many people have a tendency to focus on the duty to assist, but I think it is equally important to focus attention on the duty not to harm and the duty to reconstruct. I shall try to illustrate the role of each of these duties in an account of global justice. 11 Rawls, op. cit. note 4, p. 39. 12 Ibid. p. 36. GLOBAL HEALTH AND JUSTICE 469 © Blackwell Publishing Ltd. 2005 THE DUTY NOT TO HARM I want to illustrate the duty not to harm by considering the harm caused by unjust wars and the harm caused by environmental degradation. Both these forms of harm can have a profound effect on health prospects. It is no coincidence that many of the societies with poor population health have been ravaged by war, and it doesn’t take a subtle application of just war theory to find instances in which powerful countries have intervened unjustly. In his discussion of democratic peace theory, Rawls gives the following examples: given the great shortcomings of actual, allegedly constitutional democratic regimes, it is no surprise that they should often intervene in weaker countries, including those exhibiting some aspects of a democracy, or even that they should engage in war for expansionist reasons. As for the first situation, the United States overturned the democracies of Allende in Chile, Arbenz in Guatemala, Mossadegh in Iran, and, some would add, the Sandanistas in Nicaragua. Whatever the merits of these regimes, covert operations against them were carried out by a government prompted by monopolistic and oligarchic interests without the knowledge or criticism of the public. This subter- fuge was made easier by the handy appeal to national security in the context of superpower rivalry, which allowed such weak democracies to be cast, however implausibly, as a danger. Though democratic peoples are not expansionist, they do defend their security interest, and a democratic government can easily invoke this interest to support covert interventions, even when actually moved by economic interests behind the scenes. 13 Whatever form the unjust wars take, they often interfere with political autonomy, destroy political capital, hinder social justice, cause material damage, and harm the health of the most vulner- able populations. Another form of harm is environmental harm. It is easy to see how an environmental problem that is generated by one society can affect other societies. The generation of greenhouse gases is a classical and worrisome problem. It is certain enough that human activity is changing the climate. It is highly probable that this change will cause sea levels to rise, bring about more volatile 13 Ibid. p. 53. 470 JAMES DWYER © Blackwell Publishing Ltd. 2005 weather patterns, decrease food production at some latitudes, and contribute to the spread of tropical diseases. 14 In 2000 the rates of carbon emissions were as follows: Kuwaitis 5.97 metric tons per person; Americans 5.40; Australians 4.91; Canadians 3.87; Japanese 2.55; Swedes 1.44; Chinese 0.60; Costa Ricans 0.39; Indians 0.29. 15 Although I understand the historical explanation for the different rates of emission, I do not see any ethical justification for some people overusing the capacity of the atmosphere to act as sink. The ethical issue of climate change involves factors other than carbon emissions, but even when other factors are considered, climate change seems to be a clear case in which the benefits and burdens are unfairly distributed. The effects of climate change will not be felt uniformly across the globe. The impact will depend on geography, wealth, and social justice. Wealthy nations will be better able than poor nations to respond to a problem like rising sea levels. And within a nation, the people who will suffer most from decreases in food production or increases in tropical diseases will be the poorest and most marginalized. Social injustice often acts as a multiplier of global injustice. I tried to illustrate why an account of global justice needs to focus attention on the duty not to harm, but I do not want to claim, as a point of ethical theory, that the duty not to harm is always more important than other duties. I simply wanted to focus more attention on how societies can unjustly harm other societies, and how that harm impacts people who are unjustly treated in their own society. THE DUTY TO RECONSTRUCT Societies have a duty to reconstruct the structures and norms that regulate the interactions between them. I use the term ‘recon- struct’ for several reasons. The idea of reconstruction recognizes that there already exist structures, norms, and background con- ditions. It helps to counteract the idea that interactions take place in some natural and neutral space. The idea of reconstruction also recognizes that contexts change. Norms that functioned well in one context may not function well when new forces become oppressive and new needs become urgent. 14 P. Singer. 2002. One World: The Ethics of Globalization . New Haven. Yale University Press: 17. 15 These rates are from G. Marland, T.A. Boden & R.J. Andres. 2000. Global, Regional, and National Fossil Fuel CO2 Emissions . Available at http:// cdiac.ornl.gov/trends/emis/top2000.cap (accessed August 2004). http://� http://� GLOBAL HEALTH AND JUSTICE 471 © Blackwell Publishing Ltd. 2005 Modern societies are interrelated by the influence that they have in many areas: the natural environment; war, peace, and security; legitimacy, political autonomy, and human rights; work, trade, and finance; migration and travel; disease and public health; communication and culture; and forms of aid. 16 Interac- tions and relationships in these areas often raise questions of justice. The hard questions are not about why some structures and norms in these areas need to be reconstructed, but about the directions and modes of change. An analogy between social justice and global justice may prove helpful here. In order to promote social justice, a society may need to reconstruct the norms and structures of the background institutions. The principles and ideals of justice to which we are committed help to specify the background conditions that are needed. In his account of social justice, Rawls is committed to securing equal liberties, ensuring the fair value of political liberty, promoting fair equality of opportunity, and improving the situa- tion of the least advantaged. These commitments require certain background institutions and conditions. Rawls gives the following example: background institutions must work to keep property and wealth evenly enough shared over time to preserve the fair value of the political liberties and fair equality of opportunity over generations. They do this by laws regulating bequest and inheritance of property, and other devices such as taxes, to prevent excessive concentrations of private power. 17 In a discussion of fair equality of opportunity, Rawls reiterates the need to attend to the background conditions: A free market system must be set within a framework of political and legal institutions that adjust the long-run trend of economic forces so as to prevent excessive concentrations of property and wealth, especially those likely to lead to political domination. Society must also establish, among other things, equal opportunities of education for all reg- ardless of family income. 18 Thus the aims of ensuring fair value of political liberty and promoting fair equality of opportunity may require considerable 16 Compare my list with Young’s: I. Young. 2000. Inclusion and Democracy . New York. Oxford University Press: 267. 17 Rawls, op. cit. note 5, p. 51. 18 Ibid. p. 44. 472 JAMES DWYER © Blackwell Publishing Ltd. 2005 regulation of economic institutions and conditions. A commit- ment to justice that ignores background conditions is naïve or hypocritical. Rawls says that the background conditions for global justice ‘have a role analogous to that of the basic structure in domestic society’. 19 But what are the aims of global justice and what con- ditions do they require? A cosmopolitan view of global justice aims rather directly to prevent suffering and improve the well- being of individual people. A political view is not indifferent to the fate of individual people, but it takes a more indirect approach. It aims to address political injustices in order to reduce social evils and create conditions in which people can live better lives. A political view aims to promote justice at two levels. It aims to promote just interactions between societies in matters relat- ing to peace, trade, the environment, and so on. It also aims to promote just or decent societies, so that these societies become good members of the society of peoples. The second aim is complicated by a proper regard for political autonomy and tol- erance. Tolerance does not imply that states have unlimited sovereignty and can disregard the human rights of their citi- zens. But tolerance does require an allowance for variations in social orders and sensitive deliberation about responses to injustices. But what conditions and structures do the aims of global justice require? Let me give two brief examples. The current norms of political legitimacy give a lot of weight to raw power. Tyrants who seize or hold power by military force, and violate the basic rights of people subjected to them, are often condemned. But then they are treated as legitimate representatives of their people. This recognition of legitimacy takes many forms. Thomas Pogge has called attention to a particularly harmful form: the international resource privilege. 20 Tyrants are accorded the right to sell natural resources like oil. Multinational corporations often buy the rights to these resources, and the international community tends to treat these interactions as legitimate. By providing tyrants with the 19 Rawls, op. cit. note 4, p. 42. 20 T. Pogge. 2002. World Poverty and Human Rights . Malden, MA. Blackwell Publishers: 22–23, 113–115, 142. I should note that Pogge sees some of his work as an argument against Rawls’s account. I see the differences as a matter of emphasis. Rawls emphasizes national traditions and institutions, whereas Pogge emphasizes international norms and structures. I have tried to take both into account. GLOBAL HEALTH AND JUSTICE 473 © Blackwell Publishing Ltd. 2005 means they need to hold onto power, and by encouraging others to try to seize power, current norms do not promote just societies and just interactions between societies. Let me give a second example of the need to reconstruct norms and structures. In order to achieve the aims of social justice, a society needs to embed the market economy in a complex net- work of civil and political institutions. Likewise, to achieve the aims of global justice, the global market will need to be embedded in and regulated by appropriate political institutions. But the current form of globalization tends to subordinate political aims to economic power, to distort political interactions between soci- eties, and to limit the ways a society can even try to achieve social justice. For example, current forms of globalization encourage or even force low-income societies to limit the social provision of goods and to privatize goods like clean water and health care. Changing the global order won’t be easy, but it is naïve to think that global justice can flourish without attending to the back- ground conditions. DUTY TO ASSIST Although an account of global justice needs to emphasize the duty not to harm and the duty to reconstruct, it also needs to include a duty to assist. My division of duties into three categories is a pragmatic one. It is not justified because it describes natural kinds accurately, but because it serves human purposes well. This division of duties is justified if it helps us to see and act in a better way. (The duty to reconstruct, for example, involves issues of harm and assistance, but thinking of it as a separate category helps to focus our attention on structures and norms that regulate certain kinds of interactions.) Given my pragmatic view, I don’t have much patience with skeptical demands to justify a duty to assist. These demands often combine, in an ad hoc way, founda- tionalism and libertarianism. It seems strange and self-serving to accept a duty not to harm, but to demand a foundational justifi- cation for a duty to assist. I do recognize that we sometimes face conflicts of duties and need to address matters about the relative importance of these duties. But I don’t have much to say in general about how to resolve these conflicts. I do not want to claim that one duty always has priority over the others. Rather than debating, in general terms, the justification and the importance of the duty to assist, we should focus more attention on the aims of this duty and the various ways of fulfilling it. 474 JAMES DWYER © Blackwell Publishing Ltd. 2005 In a political account of global justice, the aim of the duty to assist is to help societies to create and maintain just (or decent) basic institutions so that the assisted societies become autonomous and good members of a just federation of peo- ples. Assistance should not aim to promote the narrow inter- ests of the assisting country, but to promote just and decent conditions in the assisted countries. In a political account of global justice, the duty to assist is complex because it combines different ideas: the importance of social justice, the ideal of meaningful autonomy (but not unlimited sovereignty), toler- ance within limits, and the hope that internally just societies will be more peaceful and fair in their foreign affairs. The duty to assist does aim to benefit people, but in an indirect way. What is the best way to fulfill the duty to assist? In general, the means should be chosen to further the aims. Well- designed assistance would promote conditions for just and sustainable institutions. It would promote autonomy and avoid the ignorance, arrogance, and paternalism that so often char- acterizes aid. And it would involve the right combination of short-term and long-term projects. To do all that in practice requires knowledge of particular situations, good political judgment, and a willingness to experiment. In some situa- tions, assistance to organizations in civil society may prove worthwhile. Some of these organizations are working to fight injustices and to increase community involvement. They serve to give voice to the very people who governments ignore or try to silence. THE PRACTICE OF JUSTICE There may be better accounts of global health and justice than the one I have given, but even the ‘best’ account will not, by itself, bring about the needed changes. Formulating an account of glo- bal health and justice is only part of the work that needs to be done. The other part is the work of realizing more just institu- tions. To do that, we will need to integrate our accounts and concerns into personal and political practices. And then we will probably need to revise our accounts in light of practices. Realiz- ing a more just order will not be easy. People don’t easily let go of special privileges, personal profits, entrenched habits, and out- moded ways of thinking. But the attempt to make practices and GLOBAL HEALTH AND JUSTICE 475 © Blackwell Publishing Ltd. 2005 institutions more just is worthy of a dedicated and sustained effort. James Dwyer, Ph.D. SUNY Upstate Medical University Center for Bioethics and Humanities Syracuse, NY 13210 USA dwyerja@upstate.edu mailto:dwyerja@upstate.edu 
work_sb37bha6pnetbahr3xn3rx6nem	----	Forde, C. and Torrance, D. (2017) Social justice and leadership development. Professional Development in Education, 43(1), pp. 106-120. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://eprints.gla.ac.uk/144747/ Deposited on: 5 September 2017 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk http://eprints.gla.ac.uk/144747/ http://eprints.gla.ac.uk/144747/ http://eprints.gla.ac.uk/ http://eprints.gla.ac.uk/ 1 Social Justice and Leadership Development Christine Forde, University of Glasgow Deirdre Torrance, University of Edinburgh 2 Abstract The revised professional standards for the teaching profession in Scotland are underpinned by a set of values which includes a detailed articulation of social justice for education covering rights, diversity and sustainability. There is a future orientation in these standards that privileges the contribution of teachers and leaders to realising a wider social aspiration for social justice. This expectation on leaders to contribute to this wider aspiration for social justice raises questions about the practice of leaders and their development. This article considers the implications of the articulation of social justice in the professional standards for career long leadership development. The article explores some of the issues related to social justice and the role of leadership in school. The article then focuses on the context of Scottish education, looking firstly, at the professional standards and secondly, at the issues related to social justice leadership. From this discussion the implications for career long leadership development are considered. The article concludes with a framework for social justice leadership development identifying key aspects of values, knowledge and understanding, inclusive practice, policy, issues of equity and equality that can be developed progressively across a leadership development continuum. Keywords: leadership development, social justice leadership, professional standards, professional values, career long leadership development, educational leadership 3 Introduction Internationally, increasing emphasis has been placed on the discrete elements of leadership and social justice in terms of educational policy, theory and professional practice. More recently, attention has focused on combining those discrete elements through utilizing the role of school leadership in addressing issues of social justice and equality. Indeed, this has now become an international concern (Bogotch 2008, Blackmore 2009). The argument being advanced here, is that an ideal future state can be envisioned and through educational leadership, social influence can be used to shape school cultures and practices which in turn support greater equity in learner outcomes and future destinations. Bogotch (2008, p. 94) sees the project for education as one of ‘seeking a pedagogy and leadership that might guide us towards change and social justice’. Despite such interest, to date there has been limited investigation or conceptual analysis of this area. Scotland provides an interesting case study through which the possibilities and constraints of embedding ‘leadership for social justice’ within professional learning for school leaders can be explored (Torrance and Forde, in press). This is far from unproblematic. While one of the historic policy concerns in Scotland is educational inclusion, there are questions about how far such ideas underpin the dominant constructions of leadership in leadership development programmes. What drives education policy currently in Scotland as elsewhere, is the search for ‘effective practice’ that will improve pupil attainment outcomes. However, if the intentions underpinning the policy articulations of equality and social justice are to be addressed, leaders need the understandings, skills and motivation to focus on shaping the conditions in schools and classrooms that foster inclusive pedagogies, 4 which engage constructively with issues of diversity. Leadership development programmes can support school leaders in this endeavor beyond the acquisition of knowledge, through the development of professional identities and confidence, through informed understandings impacting on practice, through well-developed skills. The article begins by examining the issue of social justice and educational policy and then goes on to consider social justice leadership. The article then considers the implications for leadership development and sets out a social justice leadership development framework across an educational leadership development continuum. The International Policy Context / Global Traveling Policy Comparative studies of the performance of educational systems now dominate the policy imagination globally. Studies such as the two reports produced by the management consultancy McKinsey (Barber and Mourshed 2007, Mourshed et al. 2010) and the PISA assessment regime (OECD 2014) have led to increased pressure on school systems. As national and state systems of education pursue an agenda of improvement, one of the significant factors in measuring the level of performance of a specific system is the gap in achievement between the groups of high attaining and low attaining learners. This then would seem to be an opening where issues of equality and diversity might flourish, where improvement efforts are focused on engaging and enabling learners from those groups who continue to be marginalised in school education, or, as Lopez (2014, p. 480) proposes: Education that is socially just and equitable becomes an imperative as we pursue a more socially just world, where society comes to understand that it is made richer by the diversity of its people. 5 A nexus of ideas around inclusion, equality and the building of an engaged citizenship sit within educational policy in the UK and internationally (Bell and Stevenson 2006). However, there needs to be some caution in any claims that the context is now set for the development of educational establishments and practices where the needs of diverse learners are being met routinely. The policy driver around inclusion sits side by side with concerns about economic performance as a result of which, education is also seen as the means of producing the necessary human capital to ensure economic prosperity (OECD 2010). Barnett and Stevenson (2014) note that an effect of globalizing educational policies and practices, is the development of regional and international networks of countries and international collaborations with a tendency for ‘pro-Western views to dominate projects’ (p 77). This raises questions about the development of policy and policy travelling related to social justice and education and to leadership development. Harris (2014, p. 97-98) argues that: ‘views of social justice are inextricably linked to social contexts within which models of justice make sense to the people involved’. Therefore, school leaders play a crucial role in taking forward improvement approaches, which will impact positively on achievement and this is of particular importance when considering the issues of social justice and education. Therefore, we need to consider how leadership development can support school leaders in their efforts to work for social justice within their own educational context. In this, there is a balance between enabling leaders to grapple with the specific issues within their context while at the same time finding overarching principles and strategies. Norberg et al. (2014, p. 101) argue that: ‘social justice leadership in practice, despite the 6 national context, offers more commonalities than differences’. Therefore, there is the possibility of considering the construction of social justice practice and how it might be enacted in different contexts. In the next section, we draw from the international literature to explore this question of how social justice leadership might be constructed and enacted. Then, we use the context of Scottish education to consider how these issues might play out in a particular system, from which we explore the implications for leadership development. Social Justice Leadership Despite growing interest, to date, leadership for social justice has been little studied (Insana et al. 2014, Lumby and Coleman 2007) with empirical studies tending to be small-scale and related to pressing context specific issues of inequality and exclusion. This, perhaps, is partly explained by Middlewood (2007, p. vii) who highlights the nature of contextualised leadership for social justice: For those in education, leadership for social justice involves confronting major issues, such as those of equity, diversity and inclusion, in stimulating the changes needed for the embedding of social justice. There has been some work on interrogating issues associated with social justice leadership but this is still at the early stages of conceptualisation. Mullen (2008) perceives democracy and accountability, power and authority, and equity and opportunity as critical issues of social justice central to educational leadership. Moreover, Mullen (2008, p. 275) sees social justice as an educational intervention, connecting theory to practice and to the moral use of power. Similarly, over the years, Bogotch (2014, p. 54) has come to perceive social justice as ‘a moral responsibility in 7 terms of how educational leaders used their power’. Theoharris (2007) recognises that school principals who openly confront issues of race, class, gender, disability, and sexual orientation are social justice advocates motivated to raise the achievement of marginalised students through eliminating structural barriers and developing teachers’ ability to engage with them, as well as developing a conducive school culture. In such efforts, Bogotch and Shields (2014, p. 10) contend that: ‘…educational leadership and social justice are, and must be, inextricably interconnected’. Despite international interest in social justice leadership, Bryant et al. (2014, p. 78) identify the need ‘to explore its meaning in different contexts’ as part of the task of school leaders. A critical aspect from the literature is the need for leaders who pursue a social justice agenda to engage fully with their specific context and adopt an advocacy role. In this, there is a strong political dimension. Muzaliwa and Gardiner (2014, p. 183) identify social justice leaders as ‘agents who are called to initiate change in classrooms, school buildings, districts, and communities toward equity and inclusion’, working for ‘substantive change in their schools’ (Muzaliwa and Gardiner 2014, p. 193). Managing change and tackling resistance are keynotes of the current orthodoxies of leadership practice where, through transformational forms of leadership (Bass and Avolio 1993) leaders bring about change, by building a shared vision and sense of moral purpose, creating opportunities for staff to understand and take ownership of the proposed change through professional development (Fullan 2004). Indeed, Hunsberger and Balcerzak (2014, p. 571) argue that, ‘social justice advocacy cannot merely be an effort of description and debate but instead the formulation of policies and actions to respond to social injustices’. However, the generation of policies and 8 actions around issues of social justice is, as Cochran-Smith (2010) proposes, a complex process around which there are tensions, paradoxes and competing demands. Hynds’s (2010) study of resistance to a programme of change with a social justice orientation in New Zealand schools indicates that the process is much contested and leaders need to engage with different interests. Consequently, Hynds argues that headteachers have a twofold task in bringing about change: firstly, to be prepared for the complexity and challenging nature of social justice reform and the impact on them individually; and secondly, that in any change process leaders must ‘understand that collective dialogue and inquiry must be inclusive from the beginning and must be sustained’ (p 389). This engagement Hynds explores, has a strong political character. Ryan (2010) looks at this political dimension from a different perspective. He argues that the use of political skills or acumen is critical in enacting equality policies. From his study, Ryan identifies three broad areas of skills in this political acumen: an understanding of the political environment, developing political strategies and acting strategically. Implicit in this construction of leadership for social justice, is the idea that school leaders have and are expected to exercise considerable power, and so this is an inherently political process. Dominant models of managing change (for example, Fullan 2004) emphasise the importance of building capability through developmental and motivational processes. While these are indeed important elements, this approach to change overlooks the political dimensions where school leaders face competing demands, sincere differences in viewpoint and belief, and resistance based on principle rather than a fear of change. In acknowledging the political processes of changing, the intention is not to set aside the core values underpinning school 9 leadership. In this regard, part of the task of leadership development programmes is to enable school leaders to balance the two. We turn now to the Scottish educational context to consider the challenge of building social justice leadership systemically and the contribution career-long leadership development to this. Social Justice as Defined in the Professional Standards for Teaching in Scottish Education There is a relatively long history of leadership development in Scotland, traditionally targeted at serving and aspirant headteachers. This is now being challenged to consider the professional development needs of teachers across the leadership continuum. To that end, considerable effort has been focused on identifying the key components for appropriate leadership development programmes targeted at teacher leaders, middle leaders, aspirant and then experienced headteachers (NPG 2012: Appendix C). Such leadership development is directly related to the standards for teaching in Scotland, defined by a construction of professional practice underpinned by a set of values, bodies of knowledge as well as sets of personal attributes and professional actions. The values of ‘integrity’, ‘trust and respect’, and ‘professional commitment’ set out in the professional standards (GTCS 2012a,b,c) cover the ethical dimensions of professionalism relating to personal conduct and development and in these the theme of social justice is evident: developing a critical awareness of the impact of personal values and beliefs; an inclusive and participative approach and an awareness of the context of learners; ‘acknowledging their social and economic context, individuality 10 and specific learning needs and taking into consideration barriers to learning’ (GTCS 2012c, p. 7). These ideas around personal conduct are complemented by an explicit statement concerning the centrality of social justice in the professional values for the teaching profession. Table 1: Social Justice in the Professional Standards Table 1 sets out the element of the Professional Values concerning ‘social justice’ that underpin each set of professional standards for teachers in Scottish education. In this statement we can see the two broad constructions of social justice which align with those proposed by Gewirtz (1998). In this article Gewirtz maps out the concept of social justice in education. Here Gewirtz draws from Rawls’s (1972) concept of distributional justice as one element of social justice in education but argues that that is insufficient, particularly in the light of the claims for recognition by minority and marginalized groups. Therefore Gewirtz also draws from Young (1990) and Fraser (1997) to consider the question of recognition and relational justice. Explicitly in the professional standards there is a sense of distributive justice implied in ideas of citizenship, sustainability and the future orientation. Perhaps more strongly in this statement is a sense of the idea of ‘justice of recognition’, where specific characteristics are identified and where the rights of specific groups within a broader framework of human rights, must be respected. Teachers are expected to uphold these values through ‘fair, transparent, inclusive and sustainable policies and practices’ (GTCS 2012a, p. 5). However, what is less explicit, is the third idea identified by Cochran-Smith (2010, p. 454), that of ‘acknowledging and dealing with tensions’. The values in the professional standards underline the expectations placed 11 on teachers and leaders to understand and appreciate diversity among learners and more importantly, to act to serve the learning needs of different groups of learners. However, we need to acknowledge that some of the inherent tensions in grappling with issues of social justice in schools, place particular demands on school leaders and so have implications for leadership development. One of the challenges faced by many educational systems including Scotland, is not just raising achievement but closing the gap between high attainment and the outcomes achieved particularly by marginalized groups. In addressing that challenge, Wrigley et al. (2012, p. 201) warn that many school systems are choosing to interpret the challenge by reducing social justice ‘to closing the performance gap on high- stakes standardized tests’. There is a danger that additive short term approaches are adopted with individual pupils targeted for additional support work to raise grades in examinations, without any fundamental change in the curriculum, teaching and learning processes and the wider culture that shapes the lived experiences of learners in schools. Further, such actions take place without any understanding of the context of different groups of learners. There does seem to be a need for the building of knowledge and skills to enable school leaders to move beyond simply short term targeting, to building more inclusive practices systemically, where tracking and monitoring are premised on issues of equality and fairness, rather than on simply attainment scores. Thus, the process of leadership development becomes critical. Building a Model for Leadership Development for Social Justice Leadership in Scottish Education 12 Leadership development has become a key element of career long teacher education in Scotland (Donaldson 2011, National Partnership Group 2112), where it is recognized that leadership is vital in shaping school cultures and the experiences of learners. Given the policy concern for leadership (Torrance and Humes, 2015), it is not surprising that there is a significant investment in leadership development. However, there is considerable debate about what form that leadership development should take. In Scotland, the bias is towards experiential learning, the processes of mentoring and coaching being favoured (Forde et al. 2013, Torrance 2011 and 2013) and the place of knowledge building remaining problematic (Forde 2011). Insana et al. (2014) argue that generally, scholarship connecting leadership and social justice is both fairly recent. Diversity ‘remains stubbornly peripheral in the main body of literature and in development programmes for leadership’ (Lumby and Coleman 2007, p. ix). We therefore need to consider how leadership development programmes might prepare and sustain leaders in their efforts to work for social justice. We begin by examining some of the core components identified in the international literature and then use this to develop a framework for social justice leadership development. The Knowledge Base A key issue relates to the relative importance of knowledge building and of experience in developing effective school leaders (effective in terms of leading successfully school improvement). Knowledge based programmes have been substantially criticized (Levine 2005) because of the dangers of a disconnection with practice. However, ‘learning on the job’ through experience is also seen as inadequate. Increasingly, some form of structured preparation especially for school leadership is recognized in policy and established practice in many systems (Pont et 13 al. 2008, Asia Society 2013). Boske (2014, p. 294) identifies an understanding of the significance of context as essential to deepening understandings of social justice and in that regard, suggests: ‘Those who prepare school leaders will need to continuously negotiate and renegotiate, as well as construct and reconstruct ways of knowing about community, political ideals, history, leadership, and what is meant by ‘social justice’ within specific contexts’. If, as Richardson and Sauers (2014, p. 107) assert, ‘Social justice in schools starts with leaders’, then leadership preparation programmes need to develop in leaders the ability to ‘recognize that inequalities exist within the system and focus their energies to ensure equity for all students’. Established programmes for the preparation for school leadership in Scotland are predicated on the Standard for Headship (GTCS 2012c). As part of the knowledge base headteachers are expected to develop and use, a theoretical understanding of teaching, learning, education policy, wider social and environmental developments, and leadership and management. However, within these aspects there is little specific reference to diversity. In the delineation of ‘Social and environmental trends and developments’ there is some sense of a wider more complex world: Leaders keep abreast of, and apply their enhanced knowledge and understanding of, contemporary developments in society, digital technologies, the environment and the wider global community (including trends and changes in family patterns, work patterns, the media, leisure and politics) and consider their implications for leadership (p. 9). 14 The emphasis in other sections of the Standard, is on using the latest research to improve learning outcomes and develop a critical awareness, with no clear reference to issues of diversity. There is a danger that the ‘knowledge base’ in relation to social justice is reduced to a ‘cultural literacy’. While an understanding of diverse cultures and minority positions is important, equally important is an understanding of how such insights need to be brought to bear on the teaching and learning process. Florian (2015) argues that we have to challenge some of the long held assumptions about ability, diversity and ways of learning. Similarly, Forde and Morley (2014) argue for the generation of pedagogies for diversity. Thus, the knowledge base leaders require is wide ranging and includes a critical understanding of policy and the inscription of particular ideas in such documents and of the ways in which ideas related to equality and diversity should shape the teaching and learning process. Identity and Stance One of the important outcomes of headship preparation programmes is the development and strengthening of the participant’s identity as a school leader. Exploration of the impact particularly of the Scottish Qualification for Headship highlighted the way in which the identity of the participants is in flux as they move to headship (Reeves at al. 2005, Reeves and Forde 2004). Given this flux then, there seems to be another dimension of preparing leaders for social justice in the form of consciousness raising around issues of social justice. Blackmore (2009) argues for the adoption of a critical pedagogy in leadership development to disrupt taken-for- granted-assumptions. Jean-Marie (2010) demonstrates this in her reflections on the 15 leadership programmes she leads, by considering ways in which her own identity and position shape her practice. Leadership development can be seen as a transformational experience, ‘to enable leaders through their development programmes to shape the conditions in schools and classrooms that foster inclusive and culturally responsive teaching’ (Forde and Morley 2014 p. 2). Therefore, there does need to be space for aspirant and serving school leaders to explore their identity and stance and consider the ways in which this can support or hinder leadership practice based on social justice. Boske (2014, p. 289) proffers that school leaders ‘need to be afforded spaces for renewed discussions, critical self- reflection, and experiential learning centered on broadening, deepening, and enriching their school leadership identity’. Boske considers further: Critical reflection is essential to expanding a school leader’s self- consciousness, basic worldviews, and specific capacities of self for transformation. Through this process, school leaders begin to explore what it means to understand, to become, and to know social justice work (p. 304). The school leader as an activist is a recurring idea (Theoharris 2010) in the literature and Mackenzie at al. (2008) argue for this form of school leadership where a school leader actively seeks to bring about change that supports the needs of diverse groups of learners. A theme reiterated by successive cohorts of participants undertaking the Scottish Qualification for Headship is the impact that pursuing the programme has had on their understanding of the place of values in their leadership role (Forde 2014). Consistently, many participants will report that this is the first time they have thought about their values in any depth and for some, this process in itself is transformative 16 through which they gain greater understanding and become more skilled in dealing with challenging issues. They report that they are able to set out their values as part of their practice and to recognise the contested nature of these values. The exploration of values is similarly an important element of the coaching process in the Flexible Routes to Headship (Davidson et al. 2008, Forde et al. 2013). However, to pursue an equality agenda takes more than simply the articulation of a set of values. Political Acumen and Advocacy Through authority conveyed to them and their access to power relationships, formal school leaders potentially have ‘the possibility to disturb power relations in ways that may not be open to others’ in their efforts to invoke social justice (Lumby and Coleman 2007, p. 6). The limited empirical studies conducted to date suggest that, ‘Enacting social justice [is] highly contextual’, how school leaders enact social justice being ‘dependent on the schools they served’ (Richardson and Sauers 2014, p. 108). Within their contexts, the school principals in Norberg et al.’s (2014, p. 104) study identified social justice issues as being ‘at the forefront in their everyday interactions’ (2014, p. 101), emphasising ‘the proactive nature of social justice leadership, demonstrated through decision-making, strategic planning, and daily interactions’. Beyond believing in and articulating a vision, Berman (2011, p. 129) argues that leadership for social justice involves, ‘providing the leadership for integrating into a culture of schools and into classroom instruction those programs that effectively engender social responsibility and develop social consciousness’. In responding to context, much of the literature relating to leadership development points to the significance of the personal skills and attributes of school leaders, including political skills (Ryan 2010). Theoharris (2010, p. 341) found in his study, that school 17 principals who sought to challenge injustice, looked to achieve a fundamental reshaping of the school questioning practices and ‘school structures which marginalize, segregate and impede achievement’. In so doing, these principals actively promoted social justice and created an inclusive ethos particularly for marginalised families as well as developing and empowering staff to promote social justice, rather than on a narrow attainment focus. Experiential learning processes, particularly coaching, mentoring and collaborative learning, help strengthen personal qualities to enable leaders to commit to and seek change. However, other sets of skills also need to be developed which acknowledge and prepare school leaders for the political processes they will have to address and enact, to bring about change. Here, there is a fine line between being political and simply acting on the basis of expediency and so there is a further dimension to be considered. Dimmock (2012) highlights the way in which demands of the specific context, side by side with the increasing expectations of school leaders by policy makers, have intensified the pressures exerted on them considerably. This is what Forde (2014) describes as, ‘the ‘grit’ of social justice [that] can help interrogate policy, strategy and practice’. Indeed, Boske (2014, p. 289) asserts, ‘Leading for social justice is a highly emotional endeavor requiring courage, integrity, imaginative possibilities, and self-awareness’. Furthermore, Lumby and Coleman (2007, p. 111) suggest that, ‘educational leaders will need to change a great deal simultaneously at a variety of levels to have any significant effect’, requiring ‘moral energy and moral stamina’ (Lumby and Coleman 2007, p. 122). Designing Leadership Development for Social Justice 18 The ideal of social justice for all learners is a weighty one and on the one hand, school leaders have to balance the hope inscribed in a vision of inclusion and equality with, on the other hand, a resilience to tackle barriers and resistance. School leaders also have to appreciate the partial nature of their own understandings and experience across areas of equality and inclusion and that working for the achievement of all learners is never fully accomplished. This is an ongoing stance and process, rather than a delineated change project. If we are to realise the intentions underpinning the several articulations of social justice and fairness, we need to enable leaders through their development programmes to shape the conditions in schools and classrooms that foster inclusive and culturally responsive teaching. From this discussion, a number of aspects have emerged as significant in social justice leadership: around leaders’ knowledge and understanding of issues related to equality and social justice, their own position and sense of purpose and the sets of skills to work for social justice across the school community. The focus of this discussion so far has been on the work of school leaders and the implications for their preparation and ongoing development. However, it would be important that social justice leadership is not seen as a function solely of headship but is a facet of all leadership roles. As part of the work following a review of initial and continuing teacher education, Teaching Scotland’s Future, (Donaldson 2011), a leadership development continuum has been created (Forde et al. 2015) and as part of this, themes to underpin programmes within the continuum have been identified (Strategic Development Group 2015):  pedagogical leadership  middle leadership 19  school leadership  system leadership The continuum begins with ‘pedagogical leadership’, a form of emergent leadership exercised by teachers, founded on their expertise in teaching and learning for all learners, working collaboratively with peers to enhance teaching and learning across the school. Middle leadership covers first line management roles where there is a vital connection to be made between classroom practice and the strategic development of the school and so again, practice has to be based on values around social justice. School leadership is about shaping the whole school culture, structures and relationships, which influence teaching and learning and the position of diverse learners. Systems leadership has come into the framework to highlight ways in which school leaders can have a constructive collaborative influence across a system, a vital issue where the performance of individual schools could create a competitiveness that in the end will only disadvantage vulnerable learners and their communities. Therefore in this framework, the focus is on building an educational system based on the principles of social justice. The emphasis within this framing of leadership development is on imbuing each form of leadership and its associated practices with an underpinning theme of social justice. Table 2: Social Justice Leadership across a leadership development continuum In generating curricula for leadership development programmes across the leadership continuum issues related to values, vision and purposes are associated predominantly with forms of leadership exercised by those in senior management roles. Further, 20 early leadership development can be driven by the need to build basic interpersonal skills and confidence. If social justice is to be a core aspect of educational leadership, then this should be a key theme underpinning leadership development across the continuum. The framework sets out the development of key dimensions of social justice leadership across the stages of leadership: values, knowledge and understanding, inclusive practice, policy and issues of equity and equality where at each level, participants explore their personal stance and the way in which values shape their practice within their specific context of leadership. Thus in pedagogical leadership exercised by teachers working collaboratively, for example, the emphasis is on ensuring their own practice is based on the principles of inclusion and equality which underpin the school’s mission, so that they begin to develop understandings of the area of social justice and take a critical stance to policy. Then moving through each ‘layer’ of leadership, participants develop their understandings and practice within their specific management role and context. The role of middle leaders in exercising social justice through their contribution to the wider school context is one dimension but consideration has to be given to the exercise of social justice leadership in their role in leading teaching and learning across a specific area. An important aspect underpinning each level of leadership development in this framework is that a critical stance is built, where values are the basis of action and decisions, and where the tensions and dilemmas faced by leaders are acknowledged and ways of addressing these are explored. Conclusion Scotland as a small and relatively coherent educational system has generated a range of strategies to take forward educational change in order to meet the needs of 21 increasingly diverse school populations. Current policy seeks to improve the attainment of all learners and there is an active concern with closing the attainment gap. However as Reeves and Drew (2012) illustrate the relationship between policy generation and enactment is not a simple linear process and where there are many points of translation and indeed mistranslation of policy intentions. There is a danger that unidimensional and politically expedient solutions will be generated that are short term and largely concerned with targeting individual pupils to improve their exam scores rather than looking at systemic change to address the needs of diverse learners. Much then rests on leadership in schools fostering the conditions for effective learning for the diverse group of learners in the school. Leadership development has a vital role to play in enabling leaders to have the required understandings, skills and stance for social justice leadership. To enable school leaders to generate longer term strategies, leadership development has to be seen as a transformational experience. This article highlights the significant political dimensions of leadership, from the policy expectations placed on school leaders, to managing the micropolitics of a school. Programmes are not simply about school leaders acquiring skills and emotional resilience – important as these are. Instead, areas of knowledge building, identity and stance around equality and diversity, as well as an understanding of the political and ethical dimensions of school leadership need to be central to development programmes for leadership across the continuum. The exploration and critical reflection on professional values have been an important element of headship preparation programmes in Scotland. However, we need to go further than this to take ‘social justice’ from rhetoric to action. The establishment of a development continuum for educational leadership side by side with sets of professional standards 22 are important elements in seeking to build social justice leadership. We argue that the theme of social justice leadership should be regarded as a core issue in leadership development programmes across this educational leadership development continuum. Such programmes can enable participants to explore ways in which social justice is significant within their own leadership context and generate the necessary skills and abilities to understand and address the challenges of social justice leadership. Further, approaching social justice leadership as a core element for leadership development across the continuum sets this as a concern for all leaders in a school. This may well bring to the surface some of the inherent tensions and where conflict and differences might emerge. By examining social justice leadership, leaders will be able to appreciate that these tensions are the core of what we have to engage with in seeking to exercise this form of leadership. Acknowledgements The authors would like to acknowledge and thank the members of the SCEL Strategic Headship Development Group: Dr Margery McMahon (Convenor), Gillian Hamilton, Roger Hill and Louise Turnbull for their contribution. References Asia Society 2013. Teacher Quality: The 2013 International Summit on Teacher Quality, Asia Society. Available from, http://asiasociety.org/files/teachingsummit2013.pdf [Accessed 12 June 2015]. Barber, M. and Mourshed, M. 2007. How the World’s Best-performing School Systems Come Out on Top. McKinsey Consultancy. Available from, http://asiasociety.org/files/teachingsummit2013.pdf 23 http://www.mckinsey.com/clientservice/social_sector/our_practices/education/knowle dge_highlights/best_performing_school.aspx [Accessed 12 June 2015]. Barnett, B. and Stevenson, H. 2014. Editorial Introduction. In ‘Exploring High Need and Social Justice Leadership in Schools Around the Globe, Special Issue Management in Education, 28(3), 77. Bass, B.M. and Avolio, B.J. 1993. Improving Organizational Effectiveness Through Transformational Leadership. Thousand Oaks, CA: Sage. Bell, L and Stevenson, H. 2006. Education Policy: Process, Themes and Impact. London: Routledge. Berman, S. H. 2011. Leading for Social Responsibility. In A. M. Blankstein and P. D. Houston, eds. Leadership for Social Justice and Democracy in Our Schools. Thousand Oaks, California, USA: Corwin Press, 123-144. Blackmore, J. 2009. Leadership for Social Justice: A Transnational Dialogue: International response essay. Journal of Research on Leadership Education, 4 (1), 1- 10. Bogotch, I. 2008. Social Justice as an Educational Construct. In I. Bogotch, F. Beachum, J. Blount, J. Brooks, and F. English, eds. Radicalizing Educational Leadership: Dimensions of Social Justice. Rotterdam and Taipei: Sense Publishers, 79-112. Bogotch, I. 2014. Educational Theory: The specific case of social justice as an educational leadership construct. In I. Bogotch and C. M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer, 51- 65. 24 Bogotch, I. and Shields, C.M. 2014. Introduction: Do Promises of Social Justice Trump Paradigms of Educational Leadership? In I. Bogotch and C. M. Shields, C. eds. International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer, 1-12. Boske, C. 2014. Critical Reflective Practices: Connecting to social justice. In I. Bogotch, and C.M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer, 289-308. Bryant, M., Cheng, A. and Notman, R. 2014. Editor’s Summary. In ‘Exploring High Need and Social Justice Leadership in Schools Around the Globe, special issue of Management in Education, 28 (3) 78-79. Cochran-Smith, M. 2010. Towards a Theory of Teacher Education for Social Justice. In A. Hargreaves, A. Lieberman, M. Fullan and H. Hopkins, eds. Second International Handbook of Educational Change. Dordrecht: Springer, 445-467. Davidson, J., Forde, C., Gronn, P., MacBeath, J., Martin, M. and McMahon, M. 2008. Towards a Mixed Economy of Head Teacher Development. Edinburgh: Scottish Government Social Research. Dimmock, C. 2012. Leadership: Capacity Building and School Improvement. London: Routledge. Donaldson, G. 2011. Teaching Scotland’s Future: Report of a review of teacher education in Scotland. Edinburgh: Scottish Government. Florian, L. 2015. Inclusive Pedagogy: A transformative approach to individual differences but can it help reduce educational inequalities?, Scottish Educational Review 47 (1), 5-14. 25 Forde, C. 2011. Leadership for Learning: Educating Educational Leaders. In T. Townsend and J. MacBeath, eds. International Handbook of Leadership for Learning. Dordrecht: Springer; 355-374. Forde, C. 2014. Issues of Social Justice and Fairness in the Development of Aspiring Headteachers: I had not really thought about my values before. In I. Bogotch and C. M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer, 1125-1143. Forde, C., Hamilton, G. and McMahon, M. forthcoming. Towards a Strategy for Career Long Educational Leadership in Scottish Education (under review) Forde, C., McMahon, M., Gronn, P. and Martin, M. 2013. Being a leadership development coach: a multifaceted role. Educational Management Administration and Leadership 41(1), 105-119. Forde, C. and Morley, J. 2014. Developing Pedagogies for Diversity in Scottish Education: The contribution of professional standards. Netla, Online Journal for Pedagogy and Education, Special Issue: Diversity in Education, Available from, http://netla.hi.is/serrit/2014/diversity_in_education/002.pdf [Accessed 12 June 2015]. Fraser, N. 1997. Justice Interruptus: Critical Reflections on the “Postsocialist” Condition. London: Routledge. Fullan, M. 2004. Leading in a Culture of Change, San Francisco: John Wiley. GTCS (General Teaching Council Scotland) 2012a. Standards for Registration. Edinburgh: GTCS. GTCS (General Teaching Council Scotland) 2012b. Standards for Career-long Professional learning. Edinburgh: GTCS. GTCS (General Teaching Council Scotland) 2012c. Standards for Leadership and http://netla.hi.is/serrit/2014/diversity_in_education/002.pdf 26 Management. Edinburgh: GTCS. Gewirtz, S. 1998. Conceptualizing Social Justice in Education: Mapping the territory. Journal of Education Policy, 13 (4), 469-484. Harris, E. 2014. A Grid and a Group Explanation of Social Justice: An Example of Why Frameworks are Helpful in Social Justice Discourse. In I. Bogotch, I. and C. M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice, Dordrecht: Springer, 97-116. Hunsberger, P. and Balcerzak, P. 2014. Making a Difference: The balance of stance and strategy for social justice advocacy. In I. Bogotch, and C.M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice, 571-592. Dordrecht: Springer, 571-592. Hynds, A. 2010. Unpacking Resistance to Change Within School Reform Programmes with a Social Justice Orientation. International Journal of Leadership in Education, 13(4), 377-392. Insana, L., Mardones, D.J., Welsh, H. and Johnston-Parsons, M. 2014. Narrative Dialogue and Teacher leadership for Social Justice: Re-storying to Understand. In I. Bogotch and C. M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer 447-464. Jean-Marie, G. 2010. “Fire in the Belly”: Igniting a social justice discourse in learning environments of leadership preparation. In A.K. Tooms and C. Boske, eds. Bridge Leadership: Connecting Educational Leadership and Social Justice to Improve Schools. Charlotte, NC, USA: IAP, 97-124. Levine, A. 2005. Educating School Leaders: The Levine Report. The Education Schools Project. Available from, 27 http://www.edschools.org/pdf/Embargoed_Report_050315.pdf. [Accessed 12 June 2015]. Lopez, A. E. 2014. Re-conceptualising Teacher Leadership Through Curriculum Inquiry in Pursuit of Social Justice: Case study from the Canadian context. In I. Bogotch and C. M. Shields, eds. International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer, 465-484. Lumby, J. and Coleman, M. 2007 Leadership and Diversity: Challenging theory and practice in education. London: Sage. McKenzie, K. B., Christman, D. E, Hernandez, F., Fierro, E., Capper, C. A., Dantley, M., Gonzalez, M. L., Cambron-McCabe, N. and Scheurich, J. J. 2008. From the Field: A proposal for education leaders for social justice. Educational Administration Quarterly, 44 (1), 11-138. Middlewood, D. 2007. Series Editor’s Foreword. In Lumby, J. and Coleman, M. Leadership and Diversity: Challenging Theory and Practice in Education. London: Sage, vii-viii. Mourshed, M., Chijoke, C. and Barber, M. 2010. How the World’s Most Improved School Systems Keep Getting Better. Mckinsey Consultancy. Available from, http://www.mckinsey.com/clientservice/Social_Sector/our_practices/Education/Know ledge_Highlights/How%20School%20Systems%20Get%20Better.aspx [Accessed 15th May 2015]. Mullen, C. A. 2008 Theories and Applications of Social Justice Leadership. Teacher Development: An International Journal of Teachers' Professional Development, 124, 275-278. Muzaliwa, A. I. I. and Gardiner, M. E. 2014 Narrative Inquiry as an Exemplary Method for Social Justice Leadership. In I. Bogotch and C. M. Shields, eds. http://www.edschools.org/pdf/Embargoed_Report_050315.pdf 28 International Handbook of Educational Leadership and Social [In]Justice. Dordrecht: Springer, 183-198. National Partnership Group, 2012. Teaching Scotland’s Future National Partnership Group: Report to the Cabinet Secretary for Education and Lifelong Learning, Edinburgh: Scottish Government. Available from http://www.scotland.gov.uk/Resource/0040/00407756.pdf [Accessed 12 June 2015]. Norberg, K, Arlestig, H. and Angelle, P. S. 2014. Global Conversations About Social Justice: The Swedish-US example. In ‘Exploring High Need and Social Justice Leadership in Schools Around the Globe, special issue of Management in Education, 28 3: 101-105. OECD (Organisation for Economic Co-operation and Development), 2010. The High Cost of Educational Performance: The long-run economic impact of improving PISA outcomes. Paris: OECD Publications (Authors: EA Hanushek, EA & L Woessmann). OECD (Organisation for Economic Co-operation and Development), 2014. About PISA. Available from http://www.oecd.org/pisa/aboutpisa/ [Accessed 12 June 2015]. Pont, B., Nusche, D. and Moorman, H. 2008. Improving School Leadership, Volume 1: Policy and Practice. Paris: OECD Publications. Rawls, J. 1972. A Theory of Justice. Clarendon Press: Oxford. Richardson, J. W. and Sauers, N. J. 2014. Social Justice in India: Perspectives from school leaders in diverse contexts. In ‘Exploring High Need and Social Justice Leadership in Schools Around the Globe, special issue of Management in Education, 28 3: 106-109. Reeves, J., & Drew, V. (2012). Relays and relations: tracking a policy initiative for improving teacher professionalism. Journal of Education Policy, 27(6): 711-730. http://www.scotland.gov.uk/Resource/0040/00407756.pdf http://www.oecd.org/pisa/aboutpisa/ 29 Ryan, J. 2010. Promoting Social Justice in Schools: Principals’ political strategies. International Journal of Leadership in Education: Theory and Practice, 13(4), 357- 376. Strategic Development Group, 2015. Leadership Development Framework Working Paper. Glasgow: Scottish College for Educational Leadership. Theoharris, G. 2007. Social Justice Educational Leaders and Resistance: Toward a theory of social justice leadership. Educational Administration Quarterly, 43 (2), 221- 258. Theoharris, G. 2010. Disrupting Injustice: Principals narrate the strategies they use to improve their schools and advance social justice. Teacher College Record, 112 (1), 331-373. Torrance, D. 2011. Preparing to Lead: Coaching, mentoring and tutoring in leadership development. In C. Forde and J. O’Brien, eds. Coaching and Mentoring. Edinburgh: Dunedin, 45-62. Torrance, D. 2013. The Transition to Headship/Principalship. In M. Brundrett, ed. The Principles of School Leadership, 2nd Ed. London: Sage Publications, 203-220. Torrance, D. and Forde, C. In press. To What Extent Can Headteachers be Held to Account in the Practice of Social Justice Leadership? Journal of Educational Leadership, Policy and Practice. Special issue with a focus on school leadership for social justice, 79-91. Torrance, D. and Humes, W. (2015) The Shifting Discourses of Educational Leadership: International Trends and Scotland’s response. Educational Management, Administration and Leadership, 43(5), 792-810. 30 Wrigley, T., Thomson, P. and Lingard, B. 2012. Resources for Changing Schools: Ideas in and for practice. In T. Wrigley, P. Thomson and B. Lingard, eds. Changing Schools: Alternative Ways to Make a World of Difference. Oxford: Routledge, 194- 214. Young, I. 1990. Justice and the Politics of Difference. Princeton, New Jersey: Princeton University Press. 
work_shggbamvt5he5paazppwua7fae	----	PPE528653 1..22 http://ppe.sagepub.com/ Politics, Philosophy & Economics http://ppe.sagepub.com/content/early/2014/04/20/1470594X14528653 The online version of this article can be found at: DOI: 10.1177/1470594X14528653 published online 21 April 2014Politics Philosophy Economics Theodore J. Everett and Bruce M. Everett Justice and Gini coefficients Published by: http://www.sagepublications.com On behalf of: The Murphy Institute of Political Economy can be found at:Politics, Philosophy & EconomicsAdditional services and information for http://ppe.sagepub.com/cgi/alertsEmail Alerts: http://ppe.sagepub.com/subscriptionsSubscriptions: http://www.sagepub.com/journalsReprints.navReprints: http://www.sagepub.com/journalsPermissions.navPermissions: What is This? - Apr 21, 2014OnlineFirst Version of Record >> at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ http://ppe.sagepub.com/content/early/2014/04/20/1470594X14528653 http://www.sagepublications.com http://www.tulane.edu/~murphy/ http://ppe.sagepub.com/cgi/alerts http://ppe.sagepub.com/subscriptions http://www.sagepub.com/journalsReprints.nav http://www.sagepub.com/journalsPermissions.nav http://ppe.sagepub.com/content/early/2014/04/20/1470594X14528653.full.pdf http://online.sagepub.com/site/sphelp/vorhelp.xhtml http://ppe.sagepub.com/ http://ppe.sagepub.com/ Article Justice and Gini coefficients Theodore J. Everett SUNY-Geneseo, USA Bruce M. Everett Tufts University, USA Abstract Gini coefficients, which measure gross inequalities rather than their unfair components, are often used as proxy measures of absolute or relative distributive injustice in Western societies. This presupposes that the fair inequalities in these societies are small and stable enough to be ignored. This article presents a model for a series of ideal, perfectly just societies, where comfortable lives are equally available to everyone, and calculates the Gini coefficients for each. According to this model, inequalities produced by age and other demographic factors, together with reasonable choices under equal opportunity, can raise the Gini coefficients for perfectly just societies to levels at least as high as those of any current Western country, and can as easily account for differences in Gini coefficients between such societies or within one such society over time. If Gini coef- ficients at these levels are possible for ideal societies without distributive injustice, then they should not be used as proxy measures of distributive injustice in real societies. Keywords distributive justice, injustice, inequality, Gini coefficient, income, wealth, age distribution, choice The Gini coefficient as a measure of distributive injustice Let us begin with a basic distinction among three forms of economic inequality: Gross inequality ignores distinctions among individuals that are morally relevant to distributive justice. Corresponding author: Theodore J. Everett, Department of Philosophy, SUNY-Geneseo, Geneseo, NY 14454, USA. Email: everett@geneseo.edu Politics, Philosophy & Economics 1–22 ª The Author(s) 2014 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1470594X14528653 ppe.sagepub.com at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://www.sagepub.co.uk/journalsPermissions.nav http://ppe.sagepub.com http://ppe.sagepub.com/ Fair inequality results entirely from morally acceptable distinctions among individuals. Unfair inequality results in part from morally unacceptable distinctions among indi- viduals. By any measure, unfair inequality equals gross inequality minus fair inequality. It should be obvious that gross inequality is different from unfair inequality, hence that distributive injustice cannot be inferred from gross inequality alone. In order to infer anything useful about distributive injustice in any society from a total measure of its inequality, we would also need to know, or at least to have good evidence about, how much of that total inequality is fair and how much is unfair. This fact is quite well known, at least in principle, to everyone who seriously thinks about distributive justice. Nevertheless, a simple statistical measure of gross inequality called the Gini coeffi- cient has been and continues to be widely used as a proxy measure for distributive injustice in both academic and popular discussion on the topic. The Gini coefficient, invented in 1912 by Italian statistician Corrado Gini, is a simple statistical measure of the relationship between an actual distribution and an equal distribution. In income or wealth analysis, the Gini coefficient is calculated as the difference between the actual income or wealth distribution in a society and a perfectly equal distribution in which every member of society has identical income or wealth. 1 In a totally equal income distribution, 10 percent of the people would have 10 percent of the income, 50 percent of the people would have 50 percent of the income, and so on. In any actual society’s income distribution, the bottom 10 percent of the people have less than 10 percent of the income and the bottom 50 percent of the people have less than 50 percent of the income, while the top 10 percent of the people have more (typically much more) than 10 percent of the income. If we represent these distributions on a graph, the two curves will look as shown in Figure 1. In Figure 1, the shaded area represents the difference between the actual income dis- tribution and the perfectly equal distribution. The Gini coefficient (we will usually just call it the Gini) is the ratio of that shaded area to the whole triangular area beneath the straight line for perfect equality. Thus, if there were no inequality at all in a society (the curve matches the line, so that there is no area between them), the Gini would be 0. If, on the other hand, all of the wealth or income in a society were in the hands of a single per- son (which pushes the curve as far away from the straight line as possible), the Gini would be 1. In any real society, the Gini will of course be somewhere in between. Gini coefficients have lately become popular in academic, journalistic, and political discussions of distributive justice – particularly with respect to the US, where the Ginis most commonly cited for income and wealth are higher than many people believe they ought to be, higher than they are for other Western countries, and higher than they were in the US itself several decades ago. Yet there are a number of ambiguities and limita- tions, well known to experts, that make Gini coefficients hard to interpret clearly and consistently. First, there are different ways of defining income and wealth. The US Census Bureau (2011a), for example, which is the authoritative source on income statistics for the US, develops income data through a household survey called the Annual Social and 2 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ Economic Supplement. The Census Bureau income series measures pretax income, thus excluding income taxes as well as Social Security and Medicare taxes. 2 Alternatively, the Organization for Economic Cooperation and Development (OECD, 2008), an inter- governmental organization of the world’s industrial democracies, uses a posttax defini- tion of income, which reduces apparent inequality. Comparisons across countries thus require extreme care to ensure identical definitions. In 2010, for example, the Census Bureau pretax definition yields a Gini of 0.47 for the US, while the OECD definition indicates 0.38 for the same year. Similarly varied Gini coefficients are calculated for wealth defined in terms of accumulated assets instead of annual income. The OECD cal- culation is a better intuitive measure of the inequality that is relevant to injustice, since it is closer to a measure of overall well-being or utility and seems to be used more com- monly in discussions of distributive justice. A second main problem is that Gini coefficients are indifferent to absolute levels of income or wealth. Intuitively, there is more distributive injustice in a society where annual income ranges between $1000 and $100,000 than in a society where income ranges between $1,000,000 and $100,000,000, given the lower marginal utility of money for people who are already wealthy. But the Gini coefficient would be identical for these two societies, since it measures only relative differences in income or wealth, and it would seem wrong to count them as equally distributively unjust, all things considered (Garrett, 2010). A third main problem, and the one that we will focus on here, is that the Gini coeffi- cient in its ordinary use is only a static measure of inequality, whereas a dynamic mea- sure is required for a careful application of income or wealth statistics to questions of justice. That is, it takes a ‘snapshot’ of income or wealth distribution at a particular moment in time and does not consider changes in the income of individuals over the course of their lives. 3 This makes far more difference to considerations of distributive justice than is generally realized, as we will show. Figure 1. Gini coefficient for income. Everett and Everett 3 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ According to the OECD definition, the current (2008) Gini for income in the US is about .38 and has grown over the past four decades, from about .32 in the mid-1970s. According to Credit-Suisse (2013), the Gini for wealth in the US is .85. Other Western countries have generally lower Ginis for both income and wealth: for Finland, .27 and .66, respectively; for Sweden, .23 and .80; for Germany, .30 and .77; for the UK, .34 and .68; and for Canada, .32 and .73. Viewed in isolation, such numbers can look like strong, even conclusive evidence that the US is a distributively unjust society, more unjust than other Western countries, and increasingly unjust over time. In fact, Ginis and similar sta- tistics are now often treated as if they were direct measures of distributive injustice (indeed, injustice between economic classes) in themselves, when they are at best very indirect (and potentially very misleading) evidence for such injustice. 4 There are three possible assumptions on which these Ginis might still be reasonably used as proxies for distributive injustice. The first is that the fair inequalities in relevant societies are so small as to be negligible compared to the unfair inequalities, so that any seemingly high Gini coefficient is an effective proof of absolute distributive injustice. 5 The second is that some nonnegligible baseline Gini coefficient can be established as the measure of fair inequality in a society, so that any Gini above that level is necessarily too high to be compatible with absolute distributive justice. 6 The third is that in comparing societies across space and time, the level of fair inequality – whatever that level might be – is constant, or close enough to constant, so that a higher Gini is an effective evidence of more distributive injustice. 7 Based on these often unspoken assumptions, high, too high, or relatively high Gini coefficients are then typically explained in terms of patently unjust causes such as social class divisions and unequal opportunity, while the factors of fair inequality like age distribution and free career choice are ignored or set aside as trivial. 8 We believe that the three assumptions that support this way of interpreting Ginis are all false, or at least easily could be false for all that is generally known. Nobody has established that the fair component of the gross inequality in Western societies is negli- gibly small, or that it can be set at some known level over which all inequalities are necessarily unfair, or that it’s constant between different societies or over time. And we will not attempt to establish for ourselves how much of the gross inequality in West- ern societies is fair. But we will argue that minimal common assumptions about eco- nomic justice imply Gini coefficients for ideal, perfectly just societies that are surprisingly high – indeed, high enough in theory to account potentially for all of the gross inequalities in actual Western societies as well as for all of the gross differences in inequality between Western societies or within one society over time. While no one (including us) believes that all of the substantive inequalities in Western societies are actually fair, the fact that our statistical inequalities could all be fair invalidates the fre- quent use of Ginis as a proxy measure of distributive injustice. A simple model for a perfectly just society In order to make the gap between gross inequality and unfair inequality clear in absolute terms, let us define a series of ideal model societies that are entirely just by almost any reasonable standard and then calculate their Gini coefficients. Of course, the notion of a 4 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ perfectly just society depends on many factors over which reasonable people disagree. Is it fair for people with different natural abilities to have different incomes? Is it fair to let some children inherit wealth from their parents while other, equally deserving children receive nothing? Should women’s greater average longevity be reflected in lower annual retirement incomes? We will not consider controversial questions like these in our con- structions. We will include only inequalities that almost everyone in the discussion of distributive justice plainly accepts as fair in principle (and also in practice among them- selves) and then compute the Gini coefficients for societies with only those inequalities. This will provide no more than a minimum baseline of fair inequality in these model soci- eties, but that minimum will be sufficient for our argument. The two ingredients of the first and simplest perfectly just society we have in mind are that every individual lives exactly the same economic life as every other (so that class structure and other discriminatory inequalities are completely ruled out) and that all indi- viduals live in the comfortable, free conditions common to contemporary, upper-middle- class Western professionals such as tenured philosophers and social scientists. To this end, we take for granted the following two moral principles: The principle of identity: If two people in a society live identical lives in every morally relevant respect and receive identical benefits, then there is no distribu- tive injustice between them. The principle of adequacy: The lifestyle of upper-middle-class professional Westerners is not intrinsically unjust. This model society will be one in which everyone is guaranteed what most of us cur- rently seem to desire for our own children and friends, namely, a successful professional life with a high income and a comfortable retirement. In this ideal society, there is no reason to discriminate between one person and another, because the citizens are all utterly alike in every morally relevant way. The only factor relevant to wealth or income that we allow to vary from one person to another is each person’s age at any moment. Thus, we are deliberately leaving out potentially important difference factors like hard work, perseverance, honesty, and talent in order to isolate age as a single factor in our ideal society. If you like, you can imagine that our ideal citizens are all exact clones, indistinguishable in every way other than their age. It might well be argued against our principle of identity that injustice can still exist between age cohorts, so that even if people have identical whole careers, it is wrong at each moment that those who are at one point in their careers should have more or less than those at any other point. A strict egalitarian in particular might want to assert that every adult should have the same net worth and income at all times regardless of age, though many others who consider themselves egalitarians would be satisfied with equal- ity of outcome over people’s whole lives. It is certainly the case that both income and wealth vary widely over the financial lives of ordinary middle-class Americans, with both the highest income and the greatest accumulation of wealth ordinarily gained by those approaching retirement. 9 It is also undoubtedly true that many young workers feel oppressed by having to make largely regressive transfer payments through Social Secu- rity and Medicare to retirees who never had to carry such a huge burden themselves, Everett and Everett 5 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ while some seniors still feel that they are being treated unfairly by younger people who are generally better off. 10 But such intergenerational resentments would presumably not occur in an ideal system where whole lives are treated equally and where people enjoy upper-middle-class comforts over their entire lives. In real life, they seem to arise mainly between competing cohorts in societies that change over time and distribute different total packages to people of different generations. Thus, much of the present resentment of young workers toward Social Security recipients is based on their (sadly, reasonable) expectation that they will both pay disproportionately for the current retirees’ benefits and fail to receive such benefits themselves when they retire. By contrast, in our idea- lized steady-state model, everyone both expects and receives exactly the same treatment as everybody else of the same age. So, for our simplified model society, it seems reason- able to treat this sort of intergenerational injustice as negligible according to the principle of adequacy. 11 In any case, this sort of social distinction is not the usual focus of discus- sion on distributive justice and not what Gini coefficients and other statistical measures of inequality are typically thought to characterize. Instead, the bulk of our discussion of distributive injustice is concerned with persistent class distinctions between different people, not between different stages of similar people’s lives. Here are some initial assumptions to define our ideal upper-middle-class society, including arbitrary round number values for several important factors in income and wealth distribution: Every person becomes independent and starts working at the same age, say 21, with no assets or debts. 12 Every person retires at the same age, say 65. Every person lives to the same age, say 80. Every person has the same initial salary, say $50,000 after taxes. 13 Every person’s income increases at the same rate, say 2 percent (real) per year. 14 Every person saves the same percentage of his/her annual income, say 10 percent, in personal retirement accounts, home equity, or other reasonable investments. All savings earn a constant return, say 2 percent (real) per year. Every person retires on an annuity based on his/her savings, which are exhausted just at the time he/she dies (so there is no inheritance). 15 There is a demographic steady state, that is, no immigration and no natural population change. According to our two principles, this model society is perfectly distributively just, if also rather dull, because everybody lives exactly the same comfortable modern eco- nomic life as everybody else. But consider what happens statistically when we create this model society with the values we’ve suggested. First, looking at income, we see that sal- ary increases from $50,000 at 21 years of age exponentially to $129,813 at the retirement age of 65, at which point an income of $41,852 from annuities kicks in until death at the age of 80. 16 This produces a Gini of .208 for income (using the usual, static OECD cal- culation). When we look at wealth instead of income, the inequality is considerably greater (as it is in all actual Western societies), with a Gini of .400, resulting from older workers’ accumulation of compounded salary increases and interest on regular savings over time. Thus, with age as the sole variable among otherwise identical upper-middle- 6 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ class lives, and with moderate values plugged in for interest rates and the other variables, we derive Ginis for income and wealth in our ideal society that are approximately half those of the current US. 17 It is easy to understand how there can be substantial Gini coefficients in this perfectly just society. Since its individuals earn and own different amounts of money at different points in their financial lives, a crosssection of our model society at any moment will include young people with good starting incomes but little or no wealth, middle-aged people with much higher incomes and considerably more wealth, and retirees with lower but still comfortable incomes and gradually declining wealth. The Ginis for this society might be taken superficially as evidence of inequalities between rich and poor classes of people, the way that Ginis tend to be interpreted in much of the current discussion. But that cannot be right, since in our model the apparent economic ‘classes’ comprise exactly the same people, just at different points in their careers. What we have defined, then, is an absolutely classless Western-style society with considerable gross inequality, all of which is perfectly fair according to our assumptions. Our model is robust with respect to its general features. The Gini coefficients that it yields are naturally sensitive to the arbitrary values we plug in for all the variables, but no values that seem plausible make much difference to our basic argument, other than sug- gesting what the range of Ginis for ideal Western societies might be like. For example, raising or lowering our initial salary of $50,000 makes no difference at all to the inequal- ities involved, though raising or lowering the annual increase in salary raises or lowers the Ginis for both income and wealth accordingly. Thus, if we halved the annual increase in our initial model from 2 percent to 1 percent, the resulting Ginis would be lowered from .208 and .400 to .161 and .383, respectively. If we doubled it to 4 percent, the Ginis would increase to .301 and .436. The more of their income people in our model save, the less gross income inequality results. Our initial model’s Gini of .208 for income assumes that everybody puts aside 10 percent of his/her annual earnings for investments of one sort or another. If we raised that arbitrary number to 20 percent, the result would be a lower Gini of .145, because each per- son’s income in retirement would be closer to his/her average income while working. 18 If we lowered it to 5 percent, the coefficient would go up to .275. 19 Changing the savings rate has no effect on the model’s Gini for wealth of .400, because, with everyone still saving the same percentage over his/her whole careers, relative wealth at any age remains the same. Raising or lowering the retirement age in our model society changes the Ginis for income and wealth in opposite directions. For example, if everyone in this society retired at 60 instead of 65, the income Gini would increase from .208 to .268, because fewer people would be earning very high preretirement incomes at their jobs, while the wealth Gini would decrease from .400 to .383, because each person would have had 5 fewer years to accumulate his/her savings. Alternatively, if everyone retired at 70 instead of 65, we would see the income Gini drop from .208 to .165, largely because there would be fewer ‘poor’ retirees with relatively small incomes, while the wealth Gini would increase, from .400 to .417, largely because each older person would accumulate more years of savings and interest. So, here we have a trade-off between inequalities of income and wealth: the later people retire, the less income inequality and the more wealth inequality are liable to result. 20 Everett and Everett 7 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ The same is true of other variables like longevity and appreciation on savings. Thus, if longevity increased from 80 to 85 years in our original ideal society, the Ginis for income and wealth would change from .208 and .400 to .251 and .385, respectively. If longevity were reduced from 80 to 75, the results would be .160 and .407. Similarly, halving the real rate of appreciation on savings from 2 percent to 1 percent per year results in increased income inequality and decreased wealth inequality (Ginis of .235 and .384, respectively), while doubling the rate to 4 percent results in changes the other way around (Ginis of .163 and .434, respectively). There are other desirable features of upper-middle-class economic life that have not been represented in our very simple model but that can lead to greater gross inequality. One is that young people do not always head straight from college to their first career-level jobs but typically spend several years beforehand in some combination of graduate study, interning, volunteering, traveling, living in big cities for adventure, and otherwise exploring life before settling down. To represent this in our model, we might suppose that each person lives for 5 years, say, at something over minimum wage, say $20,000 income per year, and then starts his/her $50,000 career job at the age of 26, with all other parameters being the same. Adding this feature to our original model would raise the income Gini from .208 to .254 and the wealth Gini from .400 to .440. Stipulating less time between college and career would produce intermediate results. 21 In sum, we can see that Gini coefficients are sensitive to several real-life technical factors that have nothing apparently to do with injustice. 22 We have not tried to model more than a skeleton of modern economic life here, obviously, and we have opted for simplicity over strict realism in the values chosen for the basic variables, so we are in no position to say that any particular Gini for either income or wealth is the right baseline coefficient for actual societies like ours. The best that we might do is to suggest a range of coefficients for plausible-looking sets of values in demographically steady state, Western-style societies, say setting retirement age between 60 and 70 years, longevity between 75 and 85 years, salary increases between 1 percent and 4 percent (real) per year, savings rates of between 5 percent and 20 percent per year, savings interest and home appreciation of between 1 percent and 4 percent (real) per year, and postgraduate education of between 0 and 5 years. This range of values yields a range of ‘fair-inequal- ity’ coefficients for income of anywhere from .126 to .487 (which would include the cur- rent income Ginis for all actual Western societies) and for wealth of .358 to .534 (which still falls somewhat short of actual Western Ginis for wealth). These are all possible Ginis for a modern society of perfect justice – in which, again, the only difference among its equally comfortable citizens would be their present age. Fair inequality by choice There are several plausibly fair or neutral distinctions among individuals that we have left out of our simple model but that are worth considering for somewhat more realistic distribution models that permit some diversity in people’s lives. Again, it is controversial whether distinctions in income and wealth depending only on differences in natural abil- ity are fair, but we all agree that equally talented upper-middle-class people can desire 8 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ different things in life. Some value prestige more than high income; some value leisure time more than either; some particularly value excitement, others comfort, others secu- rity, and so on. Such choices typically have predictable consequences for an individ- ual’s lifelong levels of income and wealth, so they can reasonably be seen as elements of ‘package deals’. And almost everyone believes that some income and wealth differentials among reasonable people of the same age can be perfectly fair if they depend entirely on free and equal choice. To reflect this in a more realistic model of ideal societies, let us retain the principle of adequacy, so that we can speak about distinctions that are fair within an otherwise acceptable upper-middle-class soci- ety. And let us still presuppose that all individuals in our model have identical natural abilities and economic opportunities. But let us replace the general principle of identity with this: The principle of choice: If two people in a society differ economically only as a result of the foreseeable consequences of reasonable choices equally available to each, there is no distributive injustice between them. We should be clear that we are not saying that distributive justice demands that all inequalities be attributable to reasonable choice. The principle of choice is not intended to commit us to this or any other positive theory of distributive justice. It is only intended to state a very minimal thesis that almost any theory would entail, namely that distribu- tive justice permits predictable (that is, not luck-dependent) inequalities that are entirely attributable to free, equal, and reasonable choice. 23 Including difference factors due to free choice with foreseeable consequences natu- rally raises the potential gross inequality in our model upper-middle-class societies, driv- ing their maximum Gini coefficients for income and wealth considerably higher than in our initial model. In combination, they increase the range of Ginis even further. Here are a few examples. Fair choice in household partnership So far we have been speaking only about individual income and wealth. But the US Cen- sus statistics typically used for Gini calculations are given for household, not personal, income and wealth. This obviously makes little difference for people who are single, but modern upper-middle-class society includes increasingly many two-earner households that ordinarily have much more income and wealth. Among upper-middle-class Western professionals, it is ordinarily a matter of free choice whether people enter into marriage or other household partnerships, with or without children or other dependents. But the gross statistical consequences of different choices are significant. If, for example, we put a random half of the members of our original uniform society into two-income house- holds (such couples then constituting one third of all households, each with twice the income of the remaining single households), the Gini for household income in the new model society rises from .208 to .279 and the Gini for household wealth increases from .400 to .443. 24 Everett and Everett 9 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ Fair choice in working conditions Some people choose jobs that require longer hours than others; some agree to work in less pleasant environments; some will travel further to their places of work; some accept particularly arduous, stressful, or dangerous duties, and the like, while others choose more pleasant and comfortable jobs closer to home. If we assume that any such hardship factor justifies some extra increment in pay, and we suppose again that such choices are equally available to all, then we must accept a corresponding increment of gross inequal- ity as fair. Thus, if we return to our original model and now add a differential pay ratio of, say, 2:1 between high-hardship work and low-hardship work, however these may be dis- tinguished, and imagine equal numbers of people choosing each, then the result is a more unequal but still perfectly just model society, with a Gini for income that has risen from .208 to .279 and a Gini for wealth that has increased from .400 to .443. Fair choice in job location In real societies like the US, the cost of living can vary substantially from urban to rural settings or from one region of the country to another. For example, public school teachers in cities like New York can make about twice the salary of teachers in the rural Midwest, but it can cost them about twice as much to maintain an equivalent standard of living. 25 Other things being equal, we should think of such differences as morally neutral – but they have misleading consequences for statistical gross inequality. For a rough idea of how misleading this potentially could be, suppose we let half of our original model soci- ety live in cities and half in the country, with the urban workers earning twice the nom- inal salary but spending twice as much to live as all their rural peers. This would have the same statistical effect as any other 2:1 difference in starting pay, with Ginis for income and wealth rising again from .208 to .279 and from .400 to .443, respectively. Fair choice in education In the modern West, people from comfortable backgrounds sometimes choose to go to work directly after college, while others choose to spend several years going to graduate school or doing other pre-career activities that pay less than their career starting salaries. Even if we suppose that such activities make no difference to initial salaries, gross inequality in both income and wealth necessarily increases as a result of some people delaying their careers. If we suppose that half our initial model population still enters the workforce with an annual salary of $50,000 straight from college at age 21, but the other half chooses to enter at 26 with the same starting salary, but after earning only, say, $20,000 per year in the meantime, the Ginis for income and wealth increase from .208 and .400, respectively, to .235 and .424. If we suppose instead that the delayed but more educated workers start at a compensatory higher salary of, say, $75,000, then the Gini for income rises even further to .253, while the Gini for wealth stays the same .424. It seems intuitively to be a morally neutral choice whether someone starts his/her career straight from college or postpones it for the sake of further education, then recouping just enough from higher salaries to end up with the same wealth and income at retirement. 10 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ But this neutral choice among peers increases the gross income inequality of our model society in two ways: first, by counting people as relatively ‘poor’ while they are in grad- uate school; and second, by counting them as relatively ‘rich’ while they are working at compensatory higher salaries. In real life, most such educational choices are not wealth neutral, of course, and can result in substantially above- or below-average overall financial rewards, which further increase the gross inequality of the society in which they occur. For example, every year roughly the same pool of graduating college students chooses between attending aca- demic graduate programs and attending law school, which decision ordinarily results in greatly different subsequent financial lives. Academic PhD programs take about twice as long as law school (roughly 6 as opposed to 3 years), and professors make much lower average salaries than lawyers, but many people choose this freely so that they can follow their own interests in their work and live a comfortable, generally quiet life with reason- ably high prestige. 26 If we were to split the postgraduate half of the population in our ideal society into two further halves, one of which starts only at the college-level salary of $50,000 after 6 years of graduate school (‘professors’) and the other at $100,000 after 3 years (‘lawyers’), the Ginis for income and wealth would increase to .290 and .454, respectively. 27 Fair choice in productivity Even people with the very same jobs can choose to work at them in different ways. Some people focus almost all of their energies on their careers, work harder, take fewer vaca- tions, attend conferences, study at night and on weekends to improve their performance, cultivate useful relationships, and constantly strive for raises and promotions at their jobs while seeking better positions elsewhere. Others prefer to enjoy their lives with friends and family, pursue sports, travel, gardening, or other hobbies, or to improve their minds with studies not related to their careers. Both can be perfectly reasonable choices, depending on the different things we want out of life as individuals. 28 But they result in very different career trajectories with different rates of salary increase. If we imagine another 2:1 differential, with half of our initial ideal workforce increasing their salary by 2 percent per year, and the other, more ambitious half by 4 percent, the resulting Ginis for income and wealth will be .296 and .436, respectively. 29 Fair choice in savings rate In our original model, we assumed a uniform savings rate of 10 percent for the entire working population. But we know that people of the same age in similar comfortable cir- cumstances save money at different rates, some choosing to enjoy themselves more while they are young, others putting more away for their future lives. Within a wide range of reasonable choices, the resulting differences in wealth among initial peers are intuitively neutral with respect to social justice: one person may retire somewhat more comfortably now, but another had a nicer car and more vacations back then, and these were perfectly voluntary choices, so neither person has a reasonable claim against the other. But when we add this differential to our calculations, greater gross inequalities Everett and Everett 11 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ result, particularly for wealth. This can be especially misleading, because the new statis- tics will show the first person’s greater maximum wealth and retirement income, while they ignore the other person’s big house, fancy cars, and pricey annual vacations. To get a notion of the superficial change that this can make, imagine a difference in savings rate between two random halves of our initial population, with one half saving, say, 5 percent and the other 10 percent of their annual income toward retirement in a new model soci- ety. This will increase the Gini for income from .208 to .245 and the Gini for wealth from .400 to .443. As above, a greater or lesser difference in choice of savings rates will yield greater or lesser changes in both coefficients. Fair choice in pension plans Western middle-class workers are sometimes given a choice these days between the so-called defined benefit and defined contribution retirement plans (or, more com- monly and less directly, employers make the choice of which to offer and the work- ers choose among employers). Defined contribution is what we have been assuming for everyone in our model so far: each person keeps his/her savings in a personal account, accrues further net worth through compound interest, and then trades that personal wealth for an annuity. Defined benefit programs promise workers a certain annuity up front, typically a given percentage of their final salary, while keeping the money to fund it in a common pool. Ideally, the retirement income from both types of plan should be the same, so income Ginis should be unaffected by this choice. But the savings that fund defined benefit plans are invisible to Ginis for personal or household wealth, since they are held by the employers. Instead of personal wealth that counts in calculating Ginis, workers have essentially the same guaran- teed income that the same savings would fund in either system, but in a form that is opaque to these statistics. If we imagine that half of the people in our first model society switched from a defined contribution to an equivalent defined benefit plan, and that these savings constituted half of their total investment portfolio (that is, 5 percent of their income per year), this would have no effect on the original income Gini of .208, but it would make half of their savings disappear from personal into common accounts, with the result that the Gini for wealth would increase from .400 to .443, just the same as if they’d never saved that money at all. If we supposed that people had all of their savings in their retirement plans, so that for half of the society zero savings would be visible to Gini calculations, the Gini for wealth would rise all the way to .695. 30 Fair choice in savings risk Upper-middle-class people with 401k plans, Individual Retirement Accounts (IRAs), and other modern retirement accounts are commonly required to choose how much investment risk they will accept in their portfolio. High-risk investments like stocks tend to pay better (about double, on average) over time than low-risk investments like bonds or certificates of deposit but carry a greater risk of loss in bad econo- mies. 31 On top of this, many adventurous upper-middle-class people choose to 12 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ invest their savings in particular stocks that they believe will beat the market or real estate investments, restaurants, and other small-business endeavors, while their security-minded peers keep all their non-retirement savings in the bank. If we imagine another 2:1 differential in return on savings between successfully aggres- sive and conservative investors of all sorts, so that half of our model society achieves 4 percent growth per year on savings while the other half gains our stan- dard 2 percent, the Gini for wealth rises from .400 to .436, just as it did with dif- ferential productivity above, while the Gini for income actually goes down from .208 to .192. This is a rather perverse result, because this lower overall income inequality is just a function of the fact that the successful investors’ much higher income in retirement, at $76,525 per year as opposed to the usual $41,852, is now close to the average income of people who are working, so that the relative ‘pov- erty’ of retirees as a group is diminished. Fair choice in retirement age Among healthy middle-class people in similar financial condition, some choose to retire earlier and others later than average, some never retiring at all. As everyone facing retirement knows, this has a great effect on how much income we receive during retirement. But again, we do not consider the resulting inequalities to be unjust, provided they are made as totally unforced decisions in a reasonable way. In our models so far, we have assumed a uniform retirement age of 65. But sup- pose that a random half of our society retires at 60 and the other half works until 70. The additional fair inequality that results raises the Gini for income from .208 to .226 and the Gini for wealth from .400 to .428. Combining several such choice-based distinctions can produce almost arbitrarily high Ginis for both income and wealth. For an extreme example, let us imagine an upper-middle-class society in which one half of the population freely chooses to marry, to work in high-cost areas at high-salary advanced-degree jobs with long hours, to strive for advancement, to save at a high rate in 401k or IRA accounts, to invest aggressively (all with our arbitrary 2:1 differentials), and to retire at 70, while the other half chooses to remain single, to work in low-cost areas at rela- tively low-salary jobs, to advance, save, and invest at ordinary rates with defined benefit retirement plans, and to retire at 60. The resulting Ginis in this model soci- ety would be .743 for income and .818 for wealth. 32 Both of these coefficients are higher than those for any actual Western country (the income Gini far higher) – all in a model society that is still perfectly just according to our principles. 33 It is unrealistic, of course, to imagine a society composed entirely of polar opposites like this, with one half conservative and relatively placid workers and the other half highly ambitious, risk-taking careerists; in real life, almost everyone falls somewhere in between. 34 Our point is only that this is a possible society composed of people like ourselves in which there is no distributive injustice at all, but which nevertheless has higher gross inequality as measured by Gini coefficients than any actual Western society. Everett and Everett 13 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ Comparing Ginis across places and times It might be argued that even though Gini coefficients tell us little or nothing by them- selves about absolute distributive injustice, they can still be used as a guide to relative levels of injustice between different societies or as a means of telling whether a given society has gotten more or less distributively unjust over time. It is this relative inter- pretation of Gini statistics that we find most prominent in arguments for the distribu- tive inferiority of the current US, both to other Western countries now and to the US itself of several decades ago. 35 But relative gross inequality as measured by Gini coef- ficients can be just as misleading as absolute gross inequality. For one thing, changes or differences in age structure obviously matter. Other things being equal, one society will have a lower Gini for income than another if it has fewer very-low-earning or very-high-earning workers, which might just mean fewer younger or older citizens, perhaps through lower fertility or less emphasis on the medical extension of old age. One society will tend to have a lower Gini than another for both income and wealth if it has fewer people in their 50s and 60s, perhaps because more people drink alcohol or smoke tobacco and die young as a result. Such basic demographic facts need to be taken into account before a reasonable judgment of relative injustice can be made from Gini coefficients. All of the other factors we have mentioned must be accounted for as well. One country will display a higher Gini for income than another if the first has greater longevity in general; if it has a two-earner household partnership rate closer to a peak of about 60 percent than does the second; if it has a lower average retirement age than the second or has more variation in retirement age; if it has more varied working conditions; if it comprises people who start their careers later in life than the second, or has more varied starting ages than the second; if it has a lower savings rate or more difference among savings rates; if it has greater differences in individual productivity increase or level of investment risk; or if it has greater differ- ences in cost of living between urban and rural settings. 36 Other things being equal, one society will have a higher Gini coefficient for wealth in the same circumstances, except when the first has higher longevity, a lower retirement age, or more variation in retirement age, in which case the Ginis for wealth will be lower. Also, as we have seen, large differences in Ginis for wealth can result from preferences between equally reasonable defined-benefit and defined-contribution pension systems. To the extent that any of these differences are based on people’s voluntary individual or social choices – possibly influenced by culture, geography, or other morally neutral condi- tions – they must be accounted for in inferences concerning relative as well as abso- lute distributive injustice. The same thing goes for those societies in which the Gini coefficients change over time. We cannot infer that increasing Ginis over time indicates greater unfair inequality, hence possibly more distributive injustice, unless we rule out changes in fair, baseline inequality that might explain the changing Ginis. Since the US and other Western coun- tries have benefitted from 7 or 8 years of increased average longevity over the past four decades, for example, we should expect to see increases in their Ginis for income, other things being equal, because more people will be living in retirement. Since there has also been a trend with the advance of working women toward both more single households 14 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ and more two-earner married households, we should expect to see further increases in Ginis for both income and wealth as a result. We cannot estimate how much of the noted increase in Ginis for the US and elsewhere over recent decades ought to be attributed to such morally acceptable causes. But it is important to note that such explanations are possible and must be accounted for in any analysis intended to derive increased distribu- tive injustice from increased Gini coefficients. Another possible difference between countries, or within countries as different times, is the rate of immigration, particularly Third World immigration. If one society chooses to admit large numbers of immigrants who are less skilled or edu- cated than the native population, younger on average, or more fertile at younger ages than average – all typical of large Third World populations entering into Western countries - then this will raise income and wealth inequality in three con- nected ways. First, it will add a number of people to the society without the edu- cation necessary to make upper-middle-class incomes. Second, even if all immigrants are able to earn starting salaries equal to those of natives with a col- lege education, the new immigrants will alter the standing age structure to increase the ratio of younger to older workers. Third, by having more children at younger ages, the new subpopulation will increase in size until it is assimilated into the native fertility structure. 37 Thus, any society more open to immigration of younger, less skilled, and more fertile workers than another (for example, the US compared to any other Western country) will tend to have proportionately higher Gini coefficients, even if the immigrants are treated individually just like natives of the same age. 38 Yet most of us think it is a good, not a bad, thing for distributive justice to let large numbers of Third World immigrants join our pros- perous and free societies, since even below-average incomes in the West can be substantially higher than average incomes in developing countries. 39 Another sort of choice with consequences for Gini coefficients is the extent to which a society pursues policies that tend to even out the incomes or wealth of its people over the course of their own lives. For example, a country might institute a mandatory retirement age, or raise or lower an existing one, in order to reduce unemployment among young workers or perhaps to resolve a shortage of labor. Countries might also opt to choose favorites among other normally free choices, for example, to encourage more postgraduate education or higher savings rates, in order to promote economic growth or other socially valued ends. A just, democratic soci- ety might even choose to reduce gross income inequality between older and younger workers for its own sake, if the majority of its citizens expected such a policy to produce a happier nation overall. This might be a very good utilitarian choice for homogeneous societies like the Nordic countries, with their established high pros- perity, well-tended elderly, and unworried youth. At the same time, more diverse, immigrant-rich societies like the United States might reasonably favor long-term economic growth or other goals at some cost to average utility over the short run. Obviously, different policies along these lines will produce quite different Ginis, and deliberately so. But, at least within some reasonable range of policy options, this will be a social choice in income or wealth redistribution, not a requirement of justice. Everett and Everett 15 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ Conclusion We have argued that economic justice in modern, Western-style societies like ours is consistent with considerable gross inequality of wealth and income as measured by Gini coefficients, both as a function of natural differences in age and as a result of voluntary differences in savings rates, retirement plans, and other ordinary choices at the individual or social level. We have not tried to show that distributive injustice does not exist in the US or other Western countries. There is little doubt that such injustice exists in the West just as it does everywhere else in the world, whether it is due to human cruelty and indif- ference, to economic exploitation, to ethnic, gender, and other forms of unfair discrim- ination, or to well-meant but ineffective or destructive social and economic policies; and there is little doubt that some societies are more unjust than others. But we have argued that gross inequality statistics like Gini coefficients for income and wealth do not con- stitute good evidence that of such absolute or relative injustice, since even the highest actual Ginis could in theory be explained in terms of morally acceptable differences within and among perfectly just societies. Therefore, these Gini coefficients ought not to be used as proxy measures of distributive injustice. Acknowledgements We would like to thank Christopher Annala, James Bennett, Robert R. Everett, Carlo Filice, Harry Howe, Kevin McCarthy, Stephen Sullivan, and three anonymous referees for helpful comments on this paper. We are also grateful for the patient and detailed advice that we received from the editors of PPE. Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors. Notes 1. By way of illustration, assume a society of 100 people with a total income of $1 million. To calculate the Gini coefficient, we would create two data series. The first series is the cumula- tive income shares of the society if each member had an identical annual income of $10,000. The first data point would be set at zero, and the second would be the income of the poorest person as a share of the total. Since in a perfectly equal society each member has an income of $10,000 ($1 million divided by 100), the second data point would be 1 percent. The third data point would be the total income of the two poorest people or 2 percent and so forth. The final data point in this series would be 100 percent. Plotted on a graph, this series would be a straight line rising from 0 to 100 percent. The second data series would be the cumulative income shares of the society as they actually are. Again, the first data point in the series is set at zero. If the poorest person in the society had an annual income of $1000, the second data point in this series would be 0.1 percent ($1000 divided by $1 million). If the second poorest person had an annual income of $1200, the third data point would be 0.22 percent and so forth. Once again, the final data point would be 100 percent. 2. The Annual Social and Economic Supplement defines ‘money income’ for each household member over the age of 15 to include earnings (wages and salaries), unemployment 16 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ compensation, workers’ compensation, Social Security, supplemental security income, public assistance, veterans’ payments, survivor benefits, disability benefits, pension or retirement income, interest, dividends, rents, royalties, and estates and trusts, educational assistance, ali- mony, child support, financial assistance from outside of the household, and other income. The series does not include income in kind, such as food stamps, employer-paid health insur- ance, employer-held retirement plans, and subsidized housing or farm products consumed by farmers themselves. This definition is not in itself unreasonable, but relatively small adjust- ments can have significant impacts on the Gini. For example, in the year 2003 (the last year for which the census Bureau has made these detailed calculations), the money income Gini for the US was 0.450. If we eliminate government transfer payments, the Gini increases 0.507. However, if we then subtract payroll taxes and state and federal income taxes, the Gini falls back to 0.475. Adding in government health care benefits (Medicare and Medicaid) plus means-tested government transfer payments and the imputed return on home equity, the Census Bureau Gini can be as low as 0.390, very close to the Organi- zation for Economic Cooperation and Development measure of 0.38. 3. This is presumably because the most complete and readily available data sets comprise anon- ymous, census-style survey data and would not support dynamic analysis of the lifetime changes of individuals. The US Treasury Department (2008) addresses the problem differently by surveying the tax returns of individuals. Their report offers very different insights into inequality but has been largely ignored in the public debate. Blomquist (1981) comes closest to what we are after here, comparing actual annual incomes with modeled lifetime incomes. 4. For one very prominent example, Branko Milanovic, a lead economist in the World Bank research group, takes Ginis for granted as measures of inequality between rich and poor classes of citizens, with no reference to age distribution and other background factors of fair inequality (Milanovic, 2010). 5. This is what we find in many journalistic treatments of the subject, for example Kristof (2012). 6. Norton and Ariely (2011) offer a Rawlsian approach to baseline inequality, which avoids con- sideration of detailed moral and economic issues. In effect, they just ask people in surveys how much inequality they would consider fair behind the ‘veil of ignorance’, and take their answers as a good proxy for their intuitions about distributive justice. They conclude from their surveys that a distribution in which the top quintile of the society had about three times as much wealth as the bottom quintile is what most Americans consider fair, which suggests a baseline Gini for wealth of between about .20 and .23. A detailed critique of this approach is beyond the scope of this article, but we think that a proper Rawlsian experiment ought to distinguish carefully between total gross inequality and gross inequality within age cohorts or other groups of peers and to provide some minimal test for the coherence of subjects’ responses. Kristof’s (2012) column, among many other popular sources, spreads a remarkable ‘meme’ from Norton and Ariely’s article (2011: 9–12), allegedly based on their surveys, to the effect that Americans generally prefer Sweden’s wealth distribution over that of the US. The claim is remarkable because it is actually based on a comparison between the American wealth distri- bution and the Swedish income distribution, a fact that the authors acknowledge only in an endnote. A genuine, apples-to-apples comparison would have made no sense because the US and Sweden have very similar wealth inequalities. 7. See, for example, Fischer (2011). Even the comedian Jon Stewart on his popular Daily Show (18 August, 2011) gets into the issue, proclaiming that ‘The United States is not a Third World Everett and Everett 17 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ country by any measure – except, perhaps, income inequality’, while showing a list of Gini income coefficients with the US toward the bottom. 8. See, for example, Therborn (2011). Similarly, Page and Jacobs (2009) take the recent increase in the US Gini for wealth as evidence of a ‘frantic sprint by the super rich’ to gain at the expense of others. And it is not just social scientists and political commentators who are using the Gini coefficient in this way. Even business executives are taking recent changes in the US Gini for income as a measure of the ‘shrinking middle class’, according to Byron (2011). 9. For some indication, here are the most recent statistics available to us. Median household income by age of head in 2010 was as follows: <25: 29.1 25–34: 51.4 35–44: 63.4 45–54: 64.3 55–64: 58.9 65–74: 41.0 �75: 26.2 in thousands of 2011 dollars (US Census Bureau, 2011b). Median household net worth distri- bution by age of head in 2010 was as follows: <35: 65.3 35–44: 217.4 45–54: 573.1 55–64: 880.5 65–74: 848.3 �75: 677.8 in thousands of 2010 dollars (Bricker et al., 2012). These statistics are for the whole US pop- ulation, but we assume the upper-middle-class component is at least roughly similar, given the professional career patterns typical of people in this group. 10. In fact, professional people seem to prefer having their highest incomes and most of their wealth when they are getting older, seeing this as some compensation for losing the freedom and energy they had when they were young, and in any case appropriate to the greater financial responsibilities that come with raising families and other obligations that we take on as we age. This sense of fair exchange may diminish as intergenerational inequalities increase, with young middle-class people in the US facing the massive student loan debts now common, together with their parents’ increasing longevity, which delays and diminishes their prospects for inheritance. 11. The issue of intergenerational equity has been discussed extensively in the literature (see, for example, Kerlie, 2001). There may hypothetically be cases where people in the society live identical lives, but all suffer poverty during some period in those lives, for example, during old age. Such cases may indeed give rise to a kind of distributive injustice, though not the class-based injustice that some people infer from Gini statistics. The principle of adequacy assumes that this is not an issue in our model society, even though incomes do vary over mem- bers’ lifetimes. 12. This is imagined to include free higher education and to exclude the student loans that burden many of our graduates today. 18 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ 13. All salary and other income in our model is meant to be understood as net, disposable income, after all taxes are subtracted and any transfer payments added in. 14. This is imagined to cover any normal raises, promotions, or moves to better positions during each person’s career. 15. For home equity investments, this could take the form of a reverse mortgage. 16. In any real Western society, this would be income on top of what is guaranteed by tax and transfer, such as through the US Social Security system. 17. The fact that these baseline Ginis are about half of the actual US Ginis should not be taken as evidence that the US is only half as distributively unjust as critics claim it is. As with a person’s body temperature and his/her health, it could turn out that all the inter- esting ‘action’ takes place only within a fairly narrow range of Ginis. It is worth noting, though, that this baseline Gini for wealth is already twice what Norton and Ariely (2011) claim that most Americans believe is fair. 18. Ginis for income will go down as the saving rate goes up, until the point where retirement income is the same as average working income. Beyond that point, the retirees will have increasingly higher than average incomes, so the Gini for income will go up again. Note that we are considering only gross income here, not the net income that would result from subtract- ing savings. Looking at net incomes would show a more equal distribution at moderate savings rates, but this is not how Ginis are ordinarily computed. 19. The income Gini will continue to increase as the savings rate decreases to a maximum of .356 when savings reaches zero, after which the retirees get nothing. 20. We do not mean to imply that Ginis are sensitive to changes only at the extremes of wealth or poverty. Income or net worth in the middle quintiles can also increase or decrease relative to the extremes, resulting in higher or lower Ginis as well. 21. For what it’s worth, the authors of this article both took considerably longer than 5 years each to finish their educations and made considerably less than $20,000 real incomes in the mean- time. We are assuming that most of today’s young people are more prudent. As with college in the basic model, we are ignoring the large debts that many young people accumulate these days in graduate school, and assuming that they all start their careers with zero net worth. 22. Others (for example, Kwok, 2010) have previously noted the Gini coefficient’s sensitivity to demographic factors. 23. Whether choices that do involve luck, such as gambling with money (or, say, one’s career), are always distributively just is another, and a rather heated, question. For a recent discussion of ‘luck egalitarianism’, see Williams (2013). 24. Two-earner households typically have higher costs as well, especially respecting child care, but these are ignored in the usual statistics about gross household inequality. 25. For example, last year the cost of living in Brooklyn, NY, was 181 percent of the national average and the average public teacher salary was $70,000, while the cost of living in Jeffer- son city, MO, was 97 percent of the national average and the average teacher made $37,000. (Council for Community and Economic Research, 2011; US Bureau of Labor Statistics, 2011). On average, the difference in both salary and cost of living between urban and rural settings in the US is about 50 percent. 26. Note that many ABDs and PhDs end up going to law school anyway after trying an academic career, and these people lose several years of income and savings that cannot be replaced. We still think of these highly educated people not as victims of distributive injustice but as free Everett and Everett 19 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ people following their own desires. The same is true for would-be professional artists or musi- cians who end up as teachers or in other steady jobs. These are reasonable choices for people like ourselves to make in full view of their likely consequences. 27. This ignores the much higher debts that burden American law school graduates today, which most but not all lawyers can pay back comfortably. It is still a far better ‘package deal’ financially for most equivalent students to choose law rather than an academic career. 28. Even in unionized industries, the most ambitious and career-focused workers tend to rise to higher paying management positions, sometimes within the union itself. 29. The additional exponential increase in annual salary yields a top salary for ‘strivers’ of $296,958 as opposed to our model’s standard $129,813, with a retirement income of $66,216 as opposed to $41,852. Wealth tops out at $850,830 instead of the usual $537,762. 30. Defined-benefit plans have largely been replaced by defined-contribution plans within the pri- vate sector in the US over the past few decades, and the public sector will probably follow suit, with many government employees currently being given a choice. This may account for some of the widely noted increase in US Gini coefficients for wealth over the past 40 years. 31. For some indication of these differences, as of October 2009 the average annual return on stocks (Standard & Poor’s 500) since 1926 was 9.8 percent excluding dividends, while the average annual return on government bonds was about 5.5 percent, and on Treasury bills, about 3.7 percent (Sommer, 2009). 32. Assuming further that the less ambitious group keeps not just half but all their savings in defined benefit plans, the wealth Gini rises to .829. 33. It is easy to imagine that a society like this would quickly become unjust for future genera- tions, since the wealthier-by-choice have much greater resources to spend on their children’s education and other unearned advantages over the children of the relatively-poor-by-choice, plus much more money to pass on to them in their estates. Note again, though, that our ideal state model presupposes, in effect, 100 percent inheritance taxes and free higher education available to all, in order to preserve the exact same choices for everyone in every generation. 34. Still, we can easily imagine a career-driven heart surgeon with an aggressive 401k married to a colleague and living in Manhattan, whose unmarried brother is a teacher with a defined benefit pension plan, living in rural Maine on one-sixteenth of her household income, with an even smaller fraction of her nominal savings, but both having made their financial choices freely under similar initial conditions, and both quite happy with their decisions. The reader probably knows people from upper-middle-class origins who have freely chosen equally divergent eco- nomic lives as well as many others in between. 35. See note 8 for examples. 36. In the US, for example, the most expensive city is Manhattan, with a cost of living index of 216.7 percent of the national average (US Census Bureau, 2012) with several other major cities at around 130 percent to 140 percent. By comparison, Stockholm’s cost of living is only 115.8 percent of the Swedish national average, and Helsinki’s is only 106.6 percent of the Finnish national average. Together with corresponding differentials in salary, this superficial, morally neutral difference alone will tend to make these Nordic countries appear more equal than the US, according to Ginis for income, hence to casual observers more dis- tributively just. 20 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://ppe.sagepub.com/ 37. The age factors involved in immigration are hard to represent within our simple model, but we might arbitrarily adjust our initial model to include, say, 10 percent immigrants who begin work at 21 with a pay rate of, say, $20,000 per year, with the same other factors as everybody else in our original model. Even ignoring age-structure changes, this by itself raises the income Gini for that society from .208 to .238 and the wealth Gini from .400 to .418. If that portion of the population then doubles in size relative to the native population over time, those Ginis will increase to .260 and .432, respectively. 38. Again, Kwok (2010) and others have already noted that Gini coefficients mask such demo- graphic changes. Our point here is that they are important to understanding of the Gini’s mis- leading moral implications. 39. It might be argued that a Western society with higher Gini coefficients based on immigration is still in fact more distributively unjust with respect to its own post-immigration population, while at the same time the global ‘society’, for which the Gini coefficients would have decreased, has become less distributively unjust. The proper argument would then move from the question of whether distributive inequality is always unjust to the question of whether national distributive injustice is always a morally bad thing. The immigration example seems to show that global distributive justice might well justify local distributive injustice under- stood this way. References Blomquist N (1981) A comparison of distributions of annual and lifetime income: Sweden around 1970. Review of Income and Wealth 27: 243–264. Bricker J, Kennickell A, Moore K, et al. (2012) Changes in U.S. family finances from 2007 to 2010: evidence from the survey of consumer finances. Federal Reserve Bulletin 98: 1–80. Byron E (2011) As middle class shrinks, P&G aims high and low. Wall Street Journal, 12 Septem- ber (updated 14 September). Available at: http://online.wsj.com/news/articles/SB1000142405 3111904836104576558861943984924 (accessed 1 February 2014). Council for Community and Economic Research (2011) ACCRA Cost of Living Index 44(3). Available at: http://www.cedbr.org/content/2011/ACCRA.pdf (accessed 1 February 2014). Credit-Suisse Research Institute (2013) Global Wealth Databook 2013, p. 101. Available at: https://publications.credit-suisse.com/tasks/render/file/?fileID¼1949208D-E59A-F2D9- 6D0361266E44A2F8 (accessed 1 February 2014). Fischer M (2011) Map: U.S. ranks near bottom on income inequality. The Atlantic, 19 September. Available at: http://www.theatlantic.com/international/archive/2011/09/map-us-ranks-near- bottom-on-income-inequality/245315 (accessed 1 February 2014). Garrett T (2010) US income inequality: it’s not so bad. Inside the Vault (U.S. Federal Reserve, St. Louis) 14: 1–3. Kerlie D (2001) Justice between the young and the old. Philosophy & Public Affairs 30: 152–177. Kristof N (2012) Why let the rich hoard all the toys? New York Times, 4 October: A35 Kwok K (2010) Income distribution of Hong Kong and the Gini coefficient. The Government of Hong Kong, China. Available at: http://www.eabfu.gov.hk/en/pdf/income.pdf (accessed 1 Feb- ruary 2014). Margonelli L (2013) The formula. Pacific Standard, 22 January. Available at: http://www.psmag. com/magazines/magazine-feature-story-magazines/gini-coefficient-index-poverty-wealth- income-equality-51413 (accessed 1 February 2014). Everett and Everett 21 at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://online.wsj.com/news/articles/SB10001424053111904836104576558861943984924 http://online.wsj.com/news/articles/SB10001424053111904836104576558861943984924 http://www.cedbr.org/content/2011/ACCRA.pdf https://publications.credit-suisse.com/tasks/render/file/?fileID=1949208D-E59A-F2D9-6D0361266E44A2F8 https://publications.credit-suisse.com/tasks/render/file/?fileID=1949208D-E59A-F2D9-6D0361266E44A2F8 https://publications.credit-suisse.com/tasks/render/file/?fileID=1949208D-E59A-F2D9-6D0361266E44A2F8 http://www.theatlantic.com/international/archive/2011/09/map-us-ranks-near-bottom-on-income-inequality/245315 http://www.theatlantic.com/international/archive/2011/09/map-us-ranks-near-bottom-on-income-inequality/245315 http://www.eabfu.gov.hk/en/pdf/income.pdf http://www.psmag.com/magazines/magazine-feature-story-magazines/gini-coefficient-index-poverty-wealth-income-equality-51413 http://www.psmag.com/magazines/magazine-feature-story-magazines/gini-coefficient-index-poverty-wealth-income-equality-51413 http://www.psmag.com/magazines/magazine-feature-story-magazines/gini-coefficient-index-poverty-wealth-income-equality-51413 http://ppe.sagepub.com/ Milanovic B (2010) The Haves and the Have-Nots: A Brief and Idiosyncratic History of Global Inequality. New York, NY: Basic Books. Norton M and Ariely D (2011) Building a better America – one wealth quintile at a time. Perspec- tives on Psychological Science 6: 9–12. Organization for Economic Co-operation and Development (OECD) (2008) Growing Unequal? Income Distribution and Poverty in OECD Countries. Available at: http://www.keepeek. com/Digital-Asset-Management/oecd/social-issues-migration-health/growing-unequal_97892 64044197-en#page1 (accessed 1 February 2014). Page B and Jacobs LR (2009) Class War? What Americans Really Think about Economic Inequality. Chicago, IL: University of Chicago Press. Sommer J (2009) In this 10-year bonds win by a mile. New York Times, 25 October, BU4. Therborn G (2011) Global inequality: the return of class. Global Dialogue 2, 30 September. Available at: http://isa-global-dialogue.net/global-inequality-the-return-of-class (accessed 1 February 2014). US Bureau of Labor Statistics (2011) May 2011 National Occupational Employment and Wage Estimates. Available at: http://www.bls.gov/oes/2011/may/oes_nat.htm (accessed 1 February 2014). US Census Bureau (2011a) Historical Income Tables H10AR_2011. Available at: http://www.cen- sus.gov/hhes/www/income/data/historical/household (accessed 1 February 2014). US Census Bureau (2011b) Income, Poverty, and Health Insurance Coverage in the United States: 2010. Available at: http://www.census.gov/prod/2011pubs/p60-239.pdf (accessed 1 February 2014). US Census Bureau (2012) Statistical Abstract of the United States: 2012. Available at: http:// www.census.gov/compendia/statab/2012/tables/12s0728.pdf (accessed 1 February 2014). US Treasury Department (2008) Income mobility in the U.S. from 1996 to 2005. Available at: http:// www.treasury.gov/resource-center/tax-policy/Documents/Income-Mobility-1996to2005-12-07- revised-3-08.pdf (accessed 1 February 2014). Williams A (2013) How gifts and gambles preserve justice. Economics and Philosophy 29: 65–85. Author biographies Theodore J. Everett is a professor of philosophy at SUNY-Geneseo. He has published articles on a variety of topics in The Journal of Philosophy, Philosophy and Phenomenological Research, The Australasian Journal of Philosophy, Synthese, and elsewhere. Bruce M. Everett is an adjunct associate professor of international business at the Fletcher School of Law and Diplomacy, Tufts University. He has published a variety of articles in Issues in Science and Technology, Foreign Policy, and elsewhere and writes on energy and economics at bmeverett.wordpress.com. 22 Politics, Philosophy & Economics at SUNY GENESEO on September 30, 2014ppe.sagepub.comDownloaded from http://www.keepeek.com/Digital-Asset-Management/oecd/social-issues-migration-health/growing-unequal_9789264044197-en#page1 http://www.keepeek.com/Digital-Asset-Management/oecd/social-issues-migration-health/growing-unequal_9789264044197-en#page1 http://www.keepeek.com/Digital-Asset-Management/oecd/social-issues-migration-health/growing-unequal_9789264044197-en#page1 http://isa-global-dialogue.net/global-inequality-the-return-of-class http://www.bls.gov/oes/2011/may/oes_nat.htm http://www.census.gov/hhes/www/income/data/historical/household http://www.census.gov/hhes/www/income/data/historical/household http://www.census.gov/prod/2011pubs/p60-239.pdf http://www.census.gov/compendia/statab/2012/tables/12s0728.pdf http://www.census.gov/compendia/statab/2012/tables/12s0728.pdf http://www.treasury.gov/resource-center/tax-policy/Documents/Income-Mobility- 1996to2005-12-07-revised-3-08.pdf http://www.treasury.gov/resource-center/tax-policy/Documents/Income-Mobility- 1996to2005-12-07-revised-3-08.pdf http://www.treasury.gov/resource-center/tax-policy/Documents/Income-Mobility- 1996to2005-12-07-revised-3-08.pdf http://ppe.sagepub.com/ << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Warning /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages false /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness false /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages false /ColorImageMinResolution 266 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 200 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.00000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages false /GrayImageMinResolution 266 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 200 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.00000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages false /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages false /MonoImageMinResolution 900 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Average /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.00000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox false /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputConditionIdentifier (CGATS TR 001) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /Description << /ENU <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> >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AllowImageBreaks true /AllowTableBreaks true /ExpandPage false /HonorBaseURL true /HonorRolloverEffect false /IgnoreHTMLPageBreaks false /IncludeHeaderFooter false /MarginOffset [ 0 0 0 0 ] /MetadataAuthor () /MetadataKeywords () /MetadataSubject () /MetadataTitle () /MetricPageSize [ 0 0 ] /MetricUnit /inch /MobileCompatible 0 /Namespace [ (Adobe) (GoLive) (8.0) ] /OpenZoomToHTMLFontSize false /PageOrientation /Portrait /RemoveBackground false /ShrinkContent true /TreatColorsAs /MainMonitorColors /UseEmbeddedProfiles false /UseHTMLTitleAsMetadata true >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /BleedOffset [ 9 9 9 9 ] /ConvertColors /ConvertToRGB /DestinationProfileName (sRGB IEC61966-2.1) /DestinationProfileSelector /UseName /Downsample16BitImages true /FlattenerPreset << /ClipComplexRegions true /ConvertStrokesToOutlines false /ConvertTextToOutlines false /GradientResolution 300 /LineArtTextResolution 1200 /PresetName ([High Resolution]) /PresetSelector /HighResolution /RasterVectorBalance 1 >> /FormElements true /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles true /MarksOffset 9 /MarksWeight 0.125000 /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PageMarksFile /RomanDefault /PreserveEditing true /UntaggedCMYKHandling /UseDocumentProfile /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] /SyntheticBoldness 1.000000 >> setdistillerparams << /HWResolution [288 288] /PageSize [612.000 792.000] >> setpagedevice 
work_sk3d55clcjd6haddo43fnzy32u	----	Rape, Justice, and Hierarchy in India Prakash Desai, MD, and Reshma Desai, MSW J Am Acad Psychiatry Law 28:357-9, 2000 The spectacle of a man being hit over the head witha shoe by a woman as a form of punishment causes disbeliefand wonderment. For failureto protect? For condemning a woman who has been raped? What kind of strange ritual is that? What form of justice? Through Western eyes, crime and punishment seem disconnected in this instance. In the West, crimes such as these are prosecuted within a legal system, where rules of evidence apply; upon conviction, jus tice is carried out by someform of deprivation of life, liberty, or the pursuit of happiness. Retribution is a cornerstone of this notion of punishment. Mary Ann Weaver constructs a scintillating story of a poor village woman in India, an aspect of wom en's awakening, what she calls an "epic social exper iment," in a reportage in the January 10, 2000, New Yorker article titled "Gandhi's Women." She ex plores the sojourn of a woman from the so-called backward castes (actually a tribal woman, a member of the scheduled castes and scheduled tribes, so called because of special status given to them in the Indian constitution, and thus enumerated on a "schedule") who rises to political powerand is elected to a village council by new laws of local self-governance. Elected through a "quota system" called reservations for the scheduled castes and tribes, and women, the young woman of about 40 loses in the game of male politics, which is dominated by the upper castes, but contin ues to fight for herself and for other causes including those of women. Weaver accompanies the female Dr. Prakash Desai is Chief of Staff, Veterans Administration (VA) Chicago Health Care System, West Side Division, and Professor of Psychiatry, University of Illinois at Chicago. Ms. Reshma Desai is Coordinator, Community Developments, RainbowHouse, Chicago, IL. Address correspondence to: Prakash Desai, MD, 820 S. Damen, MP (11), Chicago, IL 60612. leader and chances upon a major rural upheaval pro voked by the rape of a newly married woman at the hands of her father-in-law and exacerbated by her own father's powerful reaction of shame. Mary Ann Weaver stitches together history and a society in transition, with a focus on women and the women's movement. Within this article, there are several is sues that deserve comment and further explication: the status of women, violence against women in In dia, that country'slegal system, and the culturalvalue system that undergirds the events in this report. Violence against women isendemic and common place in many cultures and spans across history. Mil lions of women, regardless of their age, class, race, socioeconomic background, or culture, experience some form of sexual violence, quite aside from epi demic violence against them in times of war. Many survivors of violence feel alone, ashamed, and often blame themselves despite having been violated. In deed, most cultures espouse mythology and mores that support blaming the victim instead of holding the perpetrator accountable. In India, which is no exception, current statistics estimate that a woman is sexually assaulted every 54 minutes. This is a gross underestimate, since rape is rarely reported. Within this cultural context, female victims of sexual vio lence are seen as dirty and tainted. If assaulted, they feel that they have no choice but to remain silent or kill themselves to maintain the family's social status. If theyaresingle, matrimonial prospects dim. If mar ried, both the in-laws as well as their own families reject them. In the Indian psychological context, boundaries around the self extend far beyond the skin and in clude the family, community, and caste. Therefore, following a rape incident, family members justify the Volume 28, Number 3, 2000 357 Rape, Justice, and Hierarchy in India conclusion that their honor has been violated, that they have been assaulted and shamed. The grand mother's choice (in this story) of the route to justice also reflect the permeable boundaries of the self within the Indian culture. She immediately went to the indigenous court system, the caste panchayat. Panchayats, thesystem described byWeaver, were the norm in India before British institutions replaced them. The foundation of modern law in India is the Anglo-Saxon tradition, introduced and imple mented by the British during their rule, the Raj, in the 19th and the first halfof the 20th century. The structure and thecodes areborrowed; district, appel late, and state Supreme Courts and the federal Su preme Court. There are separate routes for civil and criminal prosecution, and proceedings are governed by an adversarial system with rules of evidence in play. Atrial byjury was thenorm, but thejury system was abandoned in the 1970s because impartial, ob jective judgment by peers simply could not be achieved. In addition, the courts are seen as tedious and viciously slow. One common analogy states that tortclaims are settled in the times of one's grandchil dren. And hence, in the story at hand, it is under standable that the actors resort to the more tradi tional avenue. Today, two kinds oipanchayats exist: one, politi cal, created by recent legislation; the other, caste- based, is the more traditional. The political structure for local self-governance deals with economic devel opment and social justice. It is an elected bodyat the village and district level that has powers for some adjudication. However, police functions are outside of its province. The original version was a council of elders for each of the various castes that saw to the enforcement of customs, rituals, and norms of a par ticular caste. This indigenous local justice invoked a greater sense of ownership, and the justice metedout was more powerful, authentic, and meaningful. Modern legal institutions are experienced as formal, distant, bureaucratic, overburdened, and subject to manipulation, both legal and extra-legal, and thus distrusted. The traditional court system operates as a function of the caste, a system of social teamwork that organizes social, private, and psychic life. The Indian Hindi word for caste is Jati, akin to genera in Latin, a system derived from the original stratification of people into four classes, the varna arrangement. The four classes were the priests, the warriors, businessmen, agrarians, and the menial workers, a division initially occupational and which at some point in history became hereditary. The classes subdivided and multiplied into the present caste system. The principle dividing them, in the main, were rules of food (who may eat with whom, whose food, cooked by whom), and marriage (who may marry whom, in the village, outside the village, etc.). All significant life events, for example birth, death, and marriage, occur within the context of the caste. Caste is central to social orientation, and one who violates boundaries established by the caste is thrown out of its fold, loses all social anchors, and is shunnedfrom relationships. The family as a whole is also stigmatized. To be ostracized from one's caste, then, is a form of deprivation, to be cast adrift into isolation. Before the days of penitentiaries, a com mon wayof punishment in India was to be banished from one's caste and thevillage, to bedeclared, ifyou will,persona nongrata. In Weaver's account, this was the majorpunishment metedout to the father-in-law convicted of rape, the father who insisted that his daughter, the victim, commit suicide, and the hus band who failed tostandup forhis wife. Having been banished from the caste and the village, no one may share food with them nor have any social alliance with them. The intrapsychic importance of the caste system needs to be considered for a more thorough appreci ation of the curious punishment imposed on the fa ther and the husband. The maintenance and regula tion of one's self-esteem, private and public, is vigilandy guarded and that of the other equally re spected. Respect for that esteem from other members of the family and community is critical to one's self- esteem. Hierarchies of age, gender, and caste govern the rules of honor. Violations of these rules bring about grave social and narcissistic injuries. Perpetra tors of such insults have to ask for forgiveness with total abjection to assuage the hurt. Traditional punishments, comprising forms of humiliation and reversals of status, included such things as being made to ride a donkey facing back ward or being garlanded with shoes. Not long ago, when the golden temple, holiestofthe Sikhshrines in India, was desecrated by Indian soldiers on the orders of the central government, the chief minister of the statewas punishedby the councilof the templeelders 358 The Journal of the American Academy of Psychiatry and the Law Desai and Desai for allowing the event to transpire. His punishment was to sitat thegate of the temple and clean theshoes of those who came to. the temple. Needless to say, shoes are not worn when entering holy places in In dia, because they are worn on thefeet andare made of leather and therefore are very polluted and impure. This reversal of status and self-humiliation remedied the prior insult. The caste system also visualizes a hierarchy, an order of high and low, governed by a principle of substance-code, with qualities—such as goodness, passion, and sloth—in different propor tions inherent in members of a caste. An individual is presumed to be particulate and permeable, and hu man transactions involve exchange of bodily sub stances, which change the nature of transacting bodies. From ourpoint ofview, what isofmost significant and difficult to explain in thereport is the heroic role ofthe grand-mother-in-law, mother of the man who raped the young woman, who behaved like few oth ers might in taking up the cause of the victim against her own son and grandson. That woman is truly Gandhi's daughter. Volume 28, Number 3, 2000 359 
work_sottjig66vai5kzgwplsrttsva	----	The Role of (Self-)Forgiveness in Restorative Justice: Linking Restorative Justice to Desistance Masahiro Suzuki1; Tamera Jenkins2 1 School of Business and Law, Central Queensland University, Rockhampton, Australia 2 Griffith Criminology Institute, Brisbane, Australia Corresponding Author Name: Masahiro Suzuki Position: Lecturer Affiliation: School of Business and Law, Central Queensland University, Rockhampton, Australia Email: m.suzuki@cqu.edu.au Published in European Journal of Criminology (2020). 1 Abstract Since interpersonal forgiveness has been considered a ‘gift’ that should not be forced on victims in restorative justice (RJ), the role of forgiveness in RJ remains peripheral. In this paper, we aim to advance the role of forgiveness in RJ. However, we do not focus on interpersonal forgiveness. We instead focus on another dimension of forgiveness: self-forgiveness for offenders. Because self-forgiveness is linked with both RJ and desistance respectively, self-forgiveness has the potential to function as a catalyst to connect RJ with desistance. Drawing on their relationship, we offer a process-based model of how offenders may or may not desist through RJ. We conclude with offering implications for research on RJ. Keywords Restorative justice, forgiveness, self-forgiveness, desistance 2 Introduction Since its emergence in the field of criminology, scholars have discussed what restorative justice (RJ) can offer to its participants, such as victim participation and offender accountability (e.g. Zehr 2002). The extant literature highlights numerous benefits that RJ holds for participants including emotional and psychological restoration for victims and positive behavioural change on the part of offenders (e.g. O’Mahony and Doak 2017). Forgiveness, however, has rarely been a focus of discussion in RJ literature (Armour and Umbreit, 2018; Shapland, 2016). There are reasons why forgiveness has received scant attention in RJ literature. For example, forgiveness in RJ is a complex concept that requires a consideration of interactions between various stakeholders as well as the context of offending (Armour and Umbreit, 2006). Given the difficulty of exploring such complex dynamics, with the notable exception of recent research conducted by Armour and Umbreit (2018), the lack of studies on forgiveness in RJ is understandable. Yet, there may be a more probable reason for the dearth of studies on forgiveness in an RJ context. That is, the assertion that forgiveness should not be aimed for in RJ, but rather it should be considered a ‘gift’ (Blyth, 2016a). As a result, the role of forgiveness remains peripheral in RJ. We aim to advance the role of forgiveness in RJ. However, we wish to stress that it is not our intention to oppose the above discourse on forgiveness as a gift in RJ. We wholeheartedly concur that forgiveness should not be forced on victims in RJ. In this 3 paper, we instead focus on another dimension of forgiveness: self-forgiveness for offenders1 (Webb et al., 2017). To our knowledge, self-forgiveness has similarly lacked attention in RJ literature. Even if self-forgiveness is referred to in RJ literature (e.g. Blyth, 2016b; Shapland, 2016), it is mentioned only briefly. The role of self-forgiveness in RJ has yet to be deeply probed. Understanding the role of self-forgiveness in RJ is important because it may be associated with desistance (McConnell, 2015; Tangney et al., 2005). Although the conceptual link between RJ and desistance has been discussed elsewhere (e.g., Maruna 2016), little is known about how RJ is theoretically linked with desistance. In our view, self-forgiveness can serve as a catalyst to connect RJ with desistance. Exploring the role of self-forgiveness in RJ will contribute to filling a gap between theory and practice in RJ (O'Mahony and Doak, 2017), particularly in terms of how offenders may or may not start to desist through RJ. In this paper, we first discuss why forgiveness should be considered a ‘gift’ in RJ practices. Second, we describe what self-forgiveness is. Third, we argue why self- forgiveness is important for offenders based on the benefits of self-forgiveness including its link with desistance. Fourth, we consider the relationship between self- forgiveness and RJ. Finally, we offer the role of self-forgiveness in RJ. Specifically, 1 This is not to say that self-forgiveness is neither relevant nor necessary to victims. Self-forgiveness may also be important for victims because victims may blame themselves for their victimisation (Wohl and McLaughlin, 2014). 4 using self-forgiveness as a catalyst between RJ and desistance, we propose a process- based model of how offenders may or may not desist through RJ. We conclude by offering implications for future research. Forgiveness as a ‘gift’ in restorative justice RJ may have the potential to facilitate forgiveness because a theoretical relationship exists between RJ and forgiveness. This theoretical link particularly lies in an interactive process within RJ. As noted elsewhere (e.g. Rossner, 2013), the most important component of RJ is the interaction between victims and offenders through face-to-face dialogue. Offenders are given an opportunity to be held accountable for the harms they have caused to the victims, while victims are given an opportunity to express the harm they experienced as a result of the offender’s actions. Ideally, it is in this bilateral process of RJ that forgiveness may occur. Humanistic communication with offenders may allow victims to deal with their negative feelings caused by the crime, to see offenders as a real human beings, and to promote their empathy towards offenders (Umbreit et al., 2015; see also Mauss, 1966; Stein, 1989 for how empathy arises through interactions between people). Empirical research has shown that forgiveness occurs in RJ. In research conducted in multiple locations in Australia and UK, Sherman et al. (2005) reported that the rate of the victims forgiving the offenders in RJ conferencing ranged from about 30 to 70 5 percentage across the research sites. Evaluating youth justice conferencing in Northern Ireland, Campbell et al. (2006: 77) observed that about 80 per cent of victims ‘expressed some level of forgiveness toward the young person [the offender]’. In their interviews with victims of serious violent crimes who participated in victim-offender mediation in the US, Umbreit et al. (2006) noted that of the 24 who referred to forgiveness in the interviews, 15 victims reported that they had forgiven the offenders. Furthermore, in their evaluation of family group conferencing in New Zealand, Maxwell et al. (2004) reported that about half of young offenders felt that they experienced some sense of forgiveness. Despite these theoretical and empirical links between RJ and forgiveness, as philosophers argued in the context of historical injustice (for example, see Derrida, 2001; Ricoeur, 2004), RJ scholars have almost unanimously agreed that forgiveness needs to be considered as a ‘gift’ that should not be a pursued outcome (Armour and Umbreit, 2018; Chapman and Chapman, 2016; Van Stokkom, 2008). It is Braithwaite (2002) who has perhaps most systematically articulated such a role of forgiveness in RJ. Braithwaite (2002) has proposed three types of standards for RJ: constraining, maximising, and emergent. The constraining standards contain elements that must exist in the RJ process, such as respectful listening and equal concern for all stakeholders. The maximising standards are those which, if present, increase the likelihood of the dialogue process becoming ‘restorative’. They include, for example, restoration of 6 human dignity and restoration of damaged human relationships. Emergent standards, such as forgiveness, remorse, apology, and mercy, may only occur in RJ as a result of the participants’ emotional engagement with the process and with each other. According to Braithwaite (2002: 571), forgiveness should be considered an emergent value of RJ because it can be meaningful only when it is derived from ‘a genuine desire in the person who forgives’. Forgiveness in RJ should thus be considered a ‘gift’ because forcing or pressuring victims to forgive offenders is morally wrong (Fiddes, 2016). Whether to forgive offenders or not must entirely be up to victims in RJ (Armour and Umbreit, 2006; Zehr, 2002). As a consequence, the role of forgiveness has rarely been discussed in RJ literature (Armour and Umbreit, 2018; Shapland, 2016). What is self-forgiveness? While the above discussion applies to interpersonal forgiveness, forgiveness has another dimension: self-forgiveness (Webb et al., 2017). Snow (1993: 79) argued that ‘[s]elf-forgiveness can be a second best alternative to interpersonal forgiveness in situations in which full forgiveness is not or cannot be achieved . . . because of its centrality in restoring our capability for agency after we have wronged or harmed others’. This certainly is the case for RJ because interpersonal forgiveness must not be forced on victims in RJ. To discuss the role of forgiveness in RJ, we focus on self- forgiveness for offenders. 7 The RJ literature has paid scant attention to interpersonal forgiveness and even less to the topic of self-forgiveness. To our knowledge, self-forgiveness in RJ literature has been briefly mentioned in relation to face-to-face dialogue (Blyth, 2016b; Shapland, 2016), spirituality (Bender and Armour, 2007), and custodial settings (Armour et al., 2005; Newell, 2007; Toews, 2016). What is common among this literature is that self- forgiveness has not been clearly defined. An exception might be Blyth (2016b: 70) who, drawing on Gulliford (2004), suggested that ‘[i]ntrapersonal forgiveness is inward directed, embracing the self’ and ‘concerns the feelings, thoughts, and behaviour associated with forgiveness within the individual seeking to forgive’. The lack of definition of self-forgiveness is the problem not only in the RJ literature but also in the literature in general. Because self-forgiveness is a relatively new concept that has recently experienced rapid growth in the literature (see McConnell, 2015), scholars in different disciplines have proposed different definitions of self-forgiveness (for example, see Enright and the Human Development Study, 1996 for psychology, Williston, 2012 for philosophy, and Bryan et al., 2015 for traumatology). Research suggests that self-forgiveness is both an iterative and sequential process. Jenkins (2018) found from interviews with 19 criminal offenders who committed a variety of offences including petty theft, sexual assault, drug trafficking, armed robbery and first-degree murder that, for many, self-forgiveness was a conscious decision wherein the forgiveness was focused, not on the crime or the harm they caused to others, 8 but was centred on self-harms; the damage done to their own lives as a result of their criminal actions. Self-forgiveness was depicted as a ‘day to day’ process and an ‘ongoing journey’ of self-reflection and self-acceptance wherein offenders said they had to continually ‘revisit’ their notions of personal worth in light of their criminal actions. Self-forgiveness is also a sequential process as some offenders insisted that they must cease offending and have a positive input into the community prior to forgiving themselves. It is debatable whether it is self-forgiveness that is aroused by the generosity or empathy of others. For some, forgiveness received from family or from victims motivated them to be ‘better people’ and move forward with their life in a manner that facilitated positive growth. For others, receiving forgiveness would not alleviate the psychological or emotional burden of their crimes. As one offender said, ‘whether they forgive me or not, I still have to live with what I’ve done’ (Jenkins, 2018: 200). It is argued that self-forgiveness first requires taking responsibility for one’s own wrongdoing. Like interpersonal forgiveness, self-forgiveness does not entail excusing, condoning, justifying, or forgetting the wrongdoing. For self-forgiveness to be genuine, the wrongdoer must acknowledge what they have done to the victims as well as show remorse and willingness to restore relationships. This argument is demonstrated in research conducted by Wenzel et al. (2012). Using hypothetical scenarios of and participants’ experiences of transgressions, they examined what distinguishes ‘genuine’ 9 self-forgiveness from pseudo-self-forgiveness. Their study focused on the process of achieving self-forgiveness because both genuine and pseudo-self-forgiveness are somehow associated with positive self-regard, and existing studies that focused on the outcomes of self-forgiveness could not reveal the differences between genuine and pseudo-self-forgiveness. Their findings indicated that the difference between genuine and pseudo-self-forgiveness lies in the degree of responsibility acceptance. Pseudo-self- forgiveness occurred when offenders downplayed their responsibility in order to maintain their self-esteem. Instead, genuine self-forgiveness occurred when offenders fully acknowledged their responsibility for their wrongdoing and reaffirmed the violated values. This difference between genuine and pseudo-self-forgiveness is important when considering the continuation of offending because ‘there can be no motivational change, as the offender already is motivated to act benevolently toward the self’ (Hall and Fincham, 2005: 627). In other words, without commitment to shared values through genuine self-forgiveness that involves a full acknowledgement of responsibility, offending may continue. There are several differences between self-forgiveness and interpersonal forgiveness (Webb et al., 2017). Self-forgiveness is distinct from interpersonal forgiveness in terms of conditionality. Whereas interpersonal forgiveness is conditional because it depends on victims’ willingness to forgive offenders, self-forgiveness is unconditional because it is ultimately a self-reflection process undertaken by the 10 offenders that is focused on their own wrongdoing (Hall and Fincham, 2005). Self- forgiveness is also different from interpersonal forgiveness in terms of whether it requires reconciliation. While interpersonal forgiveness does not indicate reconciliation between victims and offenders, self-forgiveness requires the offenders to reconcile with themselves. For, to forgive themselves, offenders need to face what they have done to the victims (Kim and Enright, 2014). Why does self-forgiveness matter for offenders? Self-forgiveness can benefit wrongdoers in multiple ways. Self-forgiveness has been found to hold emotional (e.g. Woodyatt and Wenzel, 2013), psychological and physical (e.g. Davis et al., 2015) benefits. Perpetrators of crime often suffer significant painful and destructive after-effects as a result of their actions, such as shame, guilt, and self- condemnation (Jenkins, 2018). Self-forgiveness may be important in terms of helping offenders address and perhaps heal from these self-created harms. Self-forgiveness is also related to self-esteem, self-trust, more empathy for the victim and a greater desire for reconciliation (Woodyatt and Wenzel, 2013). According to Wohl, DeShea and Wahkinney (2008: 9), ‘the process of self-forgiveness may be the catalyst for personal growth’ because those who self-forgive are more likely to feel, act and think constructively towards the self and see themselves as worthy. This benefit is evident in a recent study of criminal offenders’ perceptions of offence-related effects 11 and meaningfulness of forgiveness (Jenkins, 2018). Jenkins (2018) found that over half (58%, N = 19) of the offenders viewed self-forgiveness as an important element in their efforts to better understand, address and overcome the harm they caused as a result of their offences. Most wrestled with feelings of shame, guilt, psychological and emotional distress, and negative self-worth consequent to their crimes. While self-forgiveness did not come easily to offenders, those who forgave themselves, or strongly desired to do so, identified numerous benefits to self-forgiveness. Offenders credited self-forgiveness with helping them to critically reflect on the underlying causes of their criminal behaviour, to separate their worth as a person from the ‘bad’ act they committed, to challenge, if not totally repudiate, the degrading labels affixed to them because of their crimes, to cease ‘beating’ themselves up over their wrongdoing, and to commit to future law-abiding behaviour (Jenkins, 2018). Among these benefits, what we see as the most important and relevant to RJ is the link between self-forgiveness and identity transformation. Through a process that involves acknowledging their wrongdoing, gaining understanding of the issues that led to their wrong, learning self-compassion, committing to future moral behaviour and desisting from seeing themselves as a ‘moral monster’ (Griswold, 2007), offenders undergo a change of heart. Having morally improved, the offender is able to legitimately forgive themselves (Murphy, 2003). As McConnell (2015: 153) put it, offenders may start to desist from crime because they ‘recognize they cannot change the 12 past, but choose to continue to respect themselves and others by altering the future [behaviour] (Dillon, 2001; Holmgren, 2002; 2012)’. As such, ‘positive value reorientation and personal esteem restoration are each necessary components of self- forgiveness’ (Griffin et al., 2018: 723). Due to this transformative effect on identity in its process, self-forgiveness may facilitate change towards desistance. According to desistance theories, such as redemption script (Maruna, 2001) and feared self (Paternoster and Bushway, 2009), offenders may need to transform their identity of self to start desisting from crime. By examining narratives of ex-prisoners who were still involved in crime and those who ceased offending, Maruna (2001) found that those who desisted ‘portrayed and understood themselves as defiant rebels all of their lives’, while those who were still engaged in offending described their lives in ‘very much deterministic, almost mechanical terms’ by referring to ‘a cycle of poverty, stigma, and criminal associates’ (Maruna et al., 2004b: 225). Self-forgiveness, which involves reconstruction of morality and self and commitment to future moral behaviour, may be an important precursor to change towards desistance. Research supports this sequence because it suggests that identity reconstruction precedes change towards desistance. To examine how subjective factors including motivation and hope influence the desistance process in comparison to social factors, such as unemployment, LeBel et al. (2008) conducted a prospective, longitudinal study. 13 In their study, offenders were interviewed about their perceptions towards self and offending before their release from prison. Analysing the reconviction and reimprisonment of offender-participants during the 10-year follow-period, their findings showed that having a positive self, such as ‘belief in one’s ability to “go straight”’, before their release from prison contributed more to the desistance process than social factors (LeBel et al., 2008: 154). Interviews with offenders who were not involved in self-report offending during a two-year probation supervision, King (2013: 155) also found that these offenders started to construct their identity as a desister in the early phase of their desistance process because they ‘sought to identify alternative future identities and potential courses of action that could facilitate longer-term moves away from crime’. To examine whether identity transformation precedes change towards desistance, Rocque et al. (2016) employed a prospective, longitudinal study. In this study, data was collected over 20 years from three cohorts of individuals who were aged 12, 15 and 18 when the data collection started. Analysing how the identity changes over time and how it relates to offending behaviour, they found that an increase in pro- social identity occurred before the decrease in the level of involvement in offending. What is the relationship between self-forgiveness and RJ? Self-forgiveness is conceptually compatible with RJ (Tangney et al., 2005). This relationship is evident when considering RJ as an intervention to deal with the aftermath 14 of crime. Similar to therapy interventions on recovery from addition by endorsing self- forgiveness (Baker, 2008; McGaffin et al., 2013), RJ can function as a ‘tool’ or ‘setting’ to promote self-forgiveness. In other words, RJ can help offenders meet conditions necessary for the development of self-forgiveness. Participation in RJ processes can help offenders achieve genuine self-forgiveness. In RJ, offenders are treated and listened to fairly, which helps to nurture repentance within offenders (Braithwaite, 2000). RJ encourages offenders to be actively engaged in making amends for the harm they caused rather than passively taking responsibility by merely admitting their offence (Braithwaite and Roche, 2001). This effect is evident in empirical research on RJ. Using a quasi-experimental design, Calhoun and Pelech (2013) examined victims’ perceptions about offender responsibility, indicating that victims who participated in RJ were more likely to feel that the offender took responsibility than victims in the conventional justice system. In an experimental study conducted in Thailand, Boriboonthana and Sangbuangamlum (2013) also showed that more offenders who participated in RJ perceived that they were held accountable for their offending than offenders who participated in the conventional justice system. Furthermore, reanalysing the Reintegrative Shaming Experiment data, Kim and Gerber (2012) demonstrated that offenders who attended RJ were more likely to show a willingness to repay the victim and society, and feel remorse than those who were processed in the conventional justice system. 15 For self-forgiveness within offenders to occur, offenders may need to recognise that their wrongdoing is forgivable. This recognition is important for offenders ‘to begin the process of moral transformation’ (Szablowinski, 2012: 687) because it ‘enables perpetrators to understand the past in a way that relieves from [the] irreversibility’ of their offending (Chapman and Chapman, 2016: 149). Drawing on longitudinal research design, Hall and Fincham (2008) examined the process of how self-forgiveness is achieved and what factors contributed to self-forgiveness. Their findings indicated that self-forgiveness increased gradually after offending. Their findings also suggested that the process of achieving self-forgiveness was facilitated by reparation to victims as well as forgiveness from victims or a higher power, such as God. These findings help serve to establish the relationship between self-forgiveness and RJ. For offenders to forgive themselves, forgiveness from victims is desirable but not required. The message that offending is forgivable can be derived from people other than victims (Szablowinski, 2012). Given the characteristic of forgiveness in RJ as a gift and the lower prevalence rate in comparison to other RJ outcomes, such as consistently high levels of satisfaction and fairness (Doak and O'Mahony, 2018), the ‘forgivable’ message may be more likely to come from supporters of offenders in RJ than victims. RJ may facilitate self-forgiveness in offenders because supporters, such as family members and close friends, are present in RJ. The support shown to offenders by their 16 loved ones can convey to them the message that they are loved and cared for and that what is needed is for them to make amends for what they have done. Related to this supportive environment in RJ is how offenders and offending are viewed in RJ. Braithwaite’s (1989) reintegrative shaming is considered as one of the representative theories for RJ (Suzuki and Wood, 2018). According to this theory, reintegrative shaming is more effective for offender reintegration than stigmatising shaming because reintegrative shaming encourages acceptance of offenders as a person while offenders’ wrongful actions are condemned. Because self-forgiveness involves admitting one’s own wrongdoing, it entails self-condemnation, which subsequently produces negative emotions, such as shame and guilt (Woodyatt et al., 2017). To achieve self-forgiveness, these negative emotions need to be reduced or released from offenders (Hall and Fincham, 2008). RJ can be helpful in promoting the self-esteem of offenders because research showed that reintegrative shaming is more likely to occur in RJ than in criminal courts (Strang et al., 2011). By treating offenders with respect, RJ can promote self-forgiveness because it helps offenders ‘declare the wrongdoing as being peripheral to their self, as not being representative of who they really are, thereby maintaining positive self-regard’ (Wenzel et al., 2012: 625). RJ can help offenders reconcile with negative emotions as a result of acknowledging their wrongdoing while being accepted by other participants in RJ (Ahmed et al., 2001). 17 The reparative behaviours common to RJ processes, such as victim compensation and apology, may also help offenders achieve self-forgiveness. The RJ process normally consists of two processes—storytelling and outcome discussion—and participants are expected to reach a reparative agreement about what offenders should do make amends to victims. According to a meta-analysis conducted by Latimer et al. (2005), offenders who participated in RJ were more likely to complete the reparative agreement than other offenders who were ordered to make restitution in other interventions. In addition to Hall and Fincham (2008), other research showed that engagement in reparative behaviours can promote self-forgiveness. Carpenter et al. (2014) examined the relationship between conciliatory behaviours and self-forgiveness and how they are interlinked with each other. Using past experiences of participants and a hypothetical transgression case in an experimental setting, they found that conciliatory behaviours, such as apology, confession and restitution, can aid in achieving self-forgiveness. Additionally, their findings revealed the mechanism of how self-forgiveness was promoted by reparative behaviours. By engaging in conciliatory behaviours, offenders may start to feel that self-forgiveness is morally appropriate, resulting in a higher likelihood of achieving self-forgiveness because involvement in reparative behaviours decreases guilt in offenders (Carpenter et al., 2014). 18 What is the role of self-forgiveness in RJ? We have delineated the links between self-forgiveness and desistance, and between self- forgiveness and RJ respectively. We are not the first to discuss these relationships. Some scholars have already (although briefly) suggested the links between self- forgiveness and desistance (e.g. McConnell, 2015), and between self-forgiveness and RJ (e.g. Tangney et al., 2005) respectively. Yet, to our knowledge, each relationship has not been discussed as extensively. More importantly, the relationship between them all together has yet to be explored. In our view, self-forgiveness can play a major role to connect RJ with desistance among other variables related to RJ. The effect of RJ in reducing reoffending may be inconclusive because, while some research reported a positive impact of RJ on reducing recidivism (e.g. Sherman et al., 2015), other studies found minimal or no effects (e.g. Livingstone et al., 2013). This failure of RJ in reducing reoffending may be understandable because RJ may be ‘only one of many factors in an offender’s life—bad friends, traumatic life events and the failure to succeed are just some of the subsequent life events that can lead someone to re-offend’ (Maxwell, 2008: 93). However, existing but limited empirical research on RJ and desistance research showed how RJ supported change towards desistance. Interviewing adult offenders who participated in RJ in the UK, Claes and Shapland (2016: 317) noted that RJ may ‘have the possibility to foster agency, change the narrative, alter cognitive mindsets and create a shift in the identity of 19 the (ex-)offender’. Lauwaert and Aertsen (2016) interviewed young offenders who had participated in RJ in Belgium. In their study, offenders reported that RJ helped their desistance process because it helped to induce conscience for their wrongdoing. These findings shed light on the link between RJ and desistance, but we need to take into account the fact that RJ is a time-limited and one-off intervention (Hayes, 2007) that cannot deal with the underlying problems of offending (Lofton, 2004). While offenders face numerous difficulties in their everyday life to desist, such as unemployment, these circumstances that lead offenders to crimes are not addressed in RJ (Courakis and Gavrielides, 2018; Hansen and Umbreit, 2018; Walgrave et al., 2019). Given the profound effects of challenges facing offenders in their everyday life, for RJ to be what Giordano et al. (2002) call a ‘hook for change’ or what Sampson and Laub (1993) call a ‘turning point’ to start desisting from crime, offenders may need something more that connects RJ and desistance. RJ can offer important conditions to achieve self- forgiveness, and self-forgiveness may be an important precursor to change towards desistance. Thus, self-forgiveness may serve as a catalyst to connect RJ with desistance. Based on this link, we propose a process-based model of how offenders may or may not start to desist from crime through RJ. To develop our model, we build on a path model of self-forgiveness proposed by Wohl and McLaughlin (2014: 429). Put it simply, this path model offers four possible paths of self-forgiveness: genuine self-forgiveness, pseudo-self-forgiveness, no need for self-forgiveness, and no self-forgiveness. Genuine 20 self-forgiveness can occur when offenders accept full responsibility by internalising attribution of their wrongdoing. This condition leads to an increased likelihood of change towards desistance. Pseudo-self-forgiveness can occur when offenders acknowledge only partial responsibility or neutralise their wrongdoing. This situation may result in a continuation of offending because these offenders do not challenge their morality and self. Where offenders deny their responsibility by externalising the attribution of their wrongdoing, they feel no need for self-forgiveness. These offenders are more likely to continue their offending behaviours. Even when offenders accept full responsibility for their wrongdoing, some offenders may not forgive themselves. In this case, ‘the wrongful behavior is likely to cease, but negative psychological and physiological effects will typically ensue’ (Wohl and McLaughlin, 2014: 431). We consider Wohl and McLaughlin’s (2014) path model useful to develop our model due to the following two reasons. Unlike other models of self-forgiveness (c.f. Hall and Fincham 2005; McConnell 2015), it describes aftermaths of self-forgiveness in terms of behavioural changes. This characteristic fits with our purpose to explain how offenders may or may not start to desist from crime through RJ. In addition, it shows not only a path in which genuine self-forgiveness occurs but also a path in which offenders fail to achieve self-forgiveness and to discontinue wrongful behaviours. As Daly (2002) observed, RJ is not always ‘successful’. As Walgrave (2011: 135) put it, it is necessary to develop knowledge on ‘what restorative justice can achieve or not’. 21 However, the number of such studies on RJ is limited to date (e.g. Rossner and Bruce, 2018). It is important to account for not only how offenders can achieve self- forgiveness and subsequently start to desist from crime through RJ, but also why they fail to do so. For these reasons, we have decided to develop our process-based model based on Wohl and McLaughlin’s (2014) path model of self-forgiveness. We are interested in how the RJ process fits in with these models and what elements unique to RJ can add to it. Before describing our model, we discuss a limitation of its scope. Our model does not focus on the interactive process of RJ, while we are aware that it is an important feature of RJ. The success of RJ may depend on the core sequence between victims and offenders, such as expressions of offenders’ genuine remorse followed by victims’ mercy (Retzinger and Scheff, 1996). Even if offenders are reluctant to acknowledge their responsibility at the beginning of RJ, full acceptance of responsibility may be elicited from interactions with empathetic victims (Hayes, 2006). Yet, we focus solely on an offender perspective because achieving self-forgiveness is ultimately the offenders’ self-reflection process on their own wrongdoing (Hall and Fincham, 2005). Although acknowledging the responsibility of wrongdoing is an important condition for offenders to achieve self-forgiveness (Woodyatt et al., 2017), our model does not offer reasons why some offenders accept only partial responsibility or fail to acknowledge their responsibility in RJ. Our focus is not on how and why offenders accept or deny 22 responsibility in RJ. Our focus is on what may occur in offenders’ behaviours as a result of taking or denying responsibility in RJ. With these limitations in mind, we elaborate on our model. Our process-based model of self-forgiveness in RJ is described in Figure 1. Our model provides three main paths towards desistance or persistence of offending. The paths are differentiated by the extent to which offenders accept their responsibility because acknowledging responsibility for wrongdoing is an important prerequisite for self-forgiveness (Woodyatt et al., 2017). There are three starting points of the paths: (1) full responsibility, (2) partial responsibility, and (3) denial of responsibility. [Figure 1 about here] When offenders acknowledge what they have done to the victims and show remorse and willingness to restore relationships in RJ, it is considered that they accept their full responsibility. This acceptance means that they are in the process of achieving genuine self-forgiveness (Wenzel et al., 2012). This process can be facilitated in RJ by care and support from the community of care, which can subsequently help offenders to discharge negative feelings, such as shame, and completing the agreement plan to make amends for victims. Once offenders achieve genuine self-forgiveness, they have a transformed identity of positive self and reconstructed morality. These together encourage offenders to commit to future law-abiding behaviours. As a result, these offenders have an increased likelihood of being on the path to desistance. 23 On the other hand, not all offenders accept their responsibility in RJ. Some offenders may take only partial responsibility or deny responsibility by blaming victims or failing to clearly express their remorse (for example, see Kenney and Clairmont 2008; Rossner and Bruce 2018). When offenders do so, what they can achieve is only either pseudo-self-forgiveness or no self-forgiveness. This may be still the case even when offenders receive support and care from their family members and friends who are present in RJ or complete the agreement plan for victims because accepting full responsibility needs to be the first step toward genuine self-forgiveness (Woodyatt et al., 2017). Without genuine self-forgiveness, offenders may not reflect their own morality that leads them to the wrongdoing in the first place. As a consequence of failing to transform their identity as a ‘moral monster’, they may be more likely to continue their offending. Conclusion Because interpersonal forgiveness should be considered a ‘gift’ in RJ, the role of forgiveness in RJ remains peripheral. To develop the role of forgiveness in RJ, we have focused on another dimension of forgiveness: self-forgiveness for offenders. Self- forgiveness is associated not only with RJ but also with desistance. Self-forgiveness can play the role to connect RJ with desistance. Building on these relationships, we have offered a process-based model of how offenders may or may not desist through RJ. 24 Our process-based model of self-forgiveness in RJ is significant because it fills the void in RJ literature. Recent RJ scholarships have been shifting their research focus from ‘what works’ to ‘how it works’ (Suzuki and Wood, 2017) because little is known about how, in what conditions and for whom RJ works (O'Mahony and Doak, 2017). Following this trend, different scholars have focused on different aspects of the RJ process and outcomes, such as procedural justice and legitimacy in RJ (Miller and Hefner, 2015). To our knowledge, what lacks among these attempts is to connect RJ with desistance. Using self-forgiveness as a catalyst between RJ and desistance, our process-based model bridges this gap in RJ literature. While our model contributes to RJ literature, it is necessary to conduct empirical research based on our process-based model. Because our model is theory-based, it remains speculative without examining how it fits in with the reality of RJ practice. Future research is important because our model may show an over-simplified sequence of RJ, self-forgiveness and desistance. Self-forgiveness is ‘a process that unfolds over time’ (Hall and Fincham, 2008: 194). In other words, it may require a long time for offenders to achieve self-forgiveness. This process may be even longer when the offence is more severe (Hall and Fincham, 2008). Likewise, desistance is also a (long) process, in which offenders often experience lapses and relapses of being involved in offending (Abrams and Terry, 2017). Given this commonality between self-forgiveness and desistance as a complex, long process, the sequence proposed in our model may not 25 necessarily be the case; for example, some offenders may forgive themselves as a result of desistance because they are no longer involved in any antisocial behaviours. Or, offenders who already forgive themselves before RJ may be more willing to restore relationships with victims by making amends and offering an apology. Because our model is hypothetical at this stage, we may have merely offered a novel way of exploring forgiveness in RJ. It is important to empirically test our model. We conclude our paper by providing implications for research. To conduct research on the role of self-forgiveness in RJ, we need a measurement to examine whether offenders achieve self-forgiveness or not. Because self-forgiveness is a relatively new concept in the literature (McConnell, 2015), a variety of scales to measure self-forgiveness exists. According to Strelan (2017: 78) who reviewed existing scales of self-forgiveness, a common problem of the existing measurements for self- forgiveness is that they lack ‘a mechanism for identifying when a respondent is a pseudo self-forgiver’. Tangney et al. (2005: 151-152) argued that this problem arises because the existing measures for self-forgiveness ‘essentially measure an outcome—an endpoint—without assessing crucial elements of the process that lead up to that outcome’. In other words, the existing measurements of self-forgiveness do not allow to distinguish genuine and pseudo-self-forgiveness because they do not ‘capture critical aspects of the process that leads to the outcome of a self at peace with the self’ (Tangney et al., 2005: 152, emphasis in the original). To address this problem of the 26 measurement for self-forgiveness, Woodyatt and Wenzel (2013) developed Differentiated Process Scales of Self-Forgiveness (DPSSF). Unlike other existing measurements for self-forgiveness, DPSSF conceptualises genuine self-forgiveness as ‘the culmination of a transformative learning process’ that involves engagement in self- reflection and reparative behaviours as well as commitment to change (Strelan, 2017: 82). The validity of DPSSF has been confirmed by Woodyatt and Wenzel (2013) because their finding showed that only those who achieved genuine self-forgiveness had increased self-esteem and empathy. Given the distinct paths in our model, genuine and pseudo-self-forgiveness need to be distinguished. We suggest employing DPSSF to test our model. Because our model suggests a causal relationship between RJ, self-forgiveness and desistance, a research design to empirically test our model should be longitudinal. In particular, what Farrall (2006) calls ‘qualitative longitudinal research’ may be beneficial. Desistance scholars emphasises the importance of examining ‘secondary’ desistance— ‘the movement from the behaviour of non-offending to the assumption of the role or identity of a “changed person”’—rather than ‘primary’ desistance that indicates ‘any lull or crime-free gap in the course of a criminal career’ (Maruna et al., 2004a: 19). This type of research requires exploring offenders’ ‘thoughts, emotions, identity traits, and feelings that change as social circumstances do’ (Cooley and Sample, 2018: 498). Our model is in line with this trend in the desistance research because our model suggests 27 that self-forgiveness, which involves reconstruction of morality and self and commitment to future moral behaviour, may be an important precursor to change towards desistance. Drawing on the proposed research design, we suggest the following data collection strategies. First, the RJ process needs to be observed to explore whether it helps offenders meet conditions necessary for the development of self-forgiveness. After the participation in RJ, the level of self-forgiveness within offender needs to be examined by using DPSSF. Finally, it is necessary to investigate whether ‘secondary’ desistance that entails an identity transformation (Maruna et al., 2004a) occurs or not, and how it is related to self-forgiveness. Based on the collected data, researchers can examine whether self-forgiveness facilitates change towards desistance through RJ as described in our model. When examining the proposed sequence in our model, it may also be beneficial to address another problem in the literature of self-forgiveness. Research suggests that whether offenders can achieve self-forgiveness may depend on various factors, such as gender and personality (e.g. Tangney et al., 2005; Rangganadhan and Todorov, 2010). Yet, there is not much research on this topic to date. The roles of gender and race in RJ have also not gained attention in the literature (Gavrielides, 2014; Österman and Masson, 2018). Further, extant desistance literature suggests desistance processes may vary between gender (Rodermond et al., 2016), race (Glynn, 2014), and ethnicity 28 (Calverley, 2013). Given these common scarcities of research, following variation research approach proposed by Hayes and Daly (2003), future research should also examine how ‘variability’—differences within offenders—influences self-forgiveness through RJ. For example, it may be important to examine whether the proposed sequence in our model varies in terms of offenders’ gender and race. Examining this question while testing our model will yield fruitful knowledge on how, for whom, and in what conditions RJ facilitates change towards desistance. 29 References Abrams L S and Terry D J (2017) Everyday desistance: The transition to adulthood among formerly incarcerated youth. New Brunswick, NJ: Rutgers University Press. Ahmed E Harris N Braithwaite J and Braithwaite V (Eds.). (2001). Shame management through reintegration. Cambridge, UK: Cambridge University Press. Armour M and Umbreit M (2018) Violence, restorative justice, and forgiveness: Dyadic forgiveness and energy shifts in restorative justice dialogue. London, UK: Jessica Kingsley Publishers. Armour M P Sage J Rubin A and Windsor L C (2005) Bridges to life: Evaluation of an in-prison restorative justice intervention. Medicine and Law 24(4): 831-851. Armour M P and Umbreit M S (2006) Victim forgiveness in restorative justice dialogue. Victims & Offenders 1(2): 123-140. Baker M E. (2008) Self-forgiveness: An empowering and therapeutic tool for women in recovery. In: MalColm W, DeCourville N & Belicki K (eds) Women's reflections on the complexities of forgiveness. New York, NY: Routledge, 61-74. Bender K and Armour M (2007) The spiritual components of restorative justice. Victims and Offenders 2(3): 251-267. Blyth M N (2016a) Introduction to the section on restorative justice. Oxford Journal of Law and Religion 5(2): 49-53. 30 Blyth M N (2016b) Re-imagining restorative justice: The value of forgiveness. Oxford Journal of Law and Religion 5(2): 66-78. Boriboonthana Y and Sangbuangamlum S (2013) Effectiveness of the restorative justice process on crime victims and adult offenders in Thailand. Asian Journal of Criminology 8(4): 277-286. Braithwaite J (1989) Crime, shame and reintegration. Cambridge, UK: Cambridge University Press. Braithwaite J (2000) Survey article: Repentance rituals and restorative justice. The Journal of Political Philosophy 8(1): 115-131. Braithwaite J (2002) Setting standards for restorative justice. British Journal of Criminology 42(3): 563-577. Braithwaite J and Roche D. (2001) Responsibility and restorative justice. In: Bazemore G & Schiff M (eds) Restorative community justice: Repairing harm and tranforming communities. Cincinnati, OH: Anderson Publishing Co., 63-84. Bryan A O Theriault J L and Bryan C J (2015) Self-forgiveness, posttraumatic stress, and suicide attempts among military personnel and veterans. Acta Anaesthesiologica Belgica 21(1): 40-46. Calhoun A and Pelech W (2013) The impact of restorative and conventional responses to harm on victims: A comparative study. British Journal of Community Justice 11(1): 63-84. 31 Calverley A (2013) Cultures of desistance: Rehabilitation, reintegration and ethnic minorities. Oxon, UK: Routledge. Campbell C Devlin R O'Mahony D Doak J Jackson J Corrigan T and Mcevoy K. (2006). Evaluation of the Northern Ireland youth conference service. Belfast, Northern Ireland: Northern Ireland Office. Carpenter T P Carlisle R D and Tsang J-A (2014) Tipping the scales: Conciliatory behavior and the morality of self-forgiveness. Journal of Positive Psychology 9(5): 389-401. Chapman T and Chapman A (2016) Forgiveness in restorative justice: Experienced but not heard? Oxford Journal of Law and Religion 5: 135-162. Claes B and Shapland J (2016) Desistance from crime and restorative justice. Restorative Justice 4(3): 302-322. Cooley B N and Sample L L (2018) The difference between desistance from sexual offending and not reoffending. Journal of Crime and Justice 41(5): 483-503. Courakis N E and Gavrielides T. (2018) Beyond restorative justice: Social justice as a new objective for criminal justice. In: Gavrielides T (ed), Routledge international handbook of restorative justice. London, UK: Routledge, 43-55. Daly K (2002) Restorative justice: The real story. Punishment & Society 4(1): 55-79. Davis D E Ho M Y Griffin B J Bell C Hook J N Van Tongeren D R DeBlaere C Worthington E L and Westbrook C J (2015) Forgiving the self and physical and 32 mental health correlates: A meta-analytic review. Journal of Counseling Psychology 62(2): 329-335. Derrida J (2001) On cosmopolitanism and forgiveness. London, UK: Routledge. Dillon Robin S (2001) Self-forgiveness and self-respect. Ethics 112(1): 53-83. Doak J and O'Mahony D. (2018) Evaluating the success of restorative justice conferencing based approach. In: Gavrielides T (ed), Routledge international handbook of restorative justice. London, UK: Routledge, 211-223. Enright R D and The Human Development Study Group (1996) Counseling within the forgiveness triad: On forgiving, receiving forgiveness, and self-forgiveness. Counseling and Values 40(2): 107-126. Farrall S. (2006). What is qualitative longitudinal research? (LSE methodology institute's discussion paper no.11). London, UK: London School of Economics. Fiddes P S (2016) Restorative justice and the theological dynamic of forgiveness. Oxford Journal of Law and Religion 5(1): 54-65. Gavrielides T (2014) Bringing race relations into the restorative justice debate: An alternative and personalized vision of “the other”. Journal of Black Studies 45(3): 216-246. Giordano Peggy C Cernkovich Stephen A and Rudolph Jennifer L (2002) Gender, crime, and desistance: Toward a theory of cognitive transformation. American Journal of Sociology 107(4): 990-1064. 33 Glynn M (2014) Black men, invisibility and crime: Towards a critical race theory of desistance. New York, NY: Routledge. Griffin B J Worthington E L Davis D E Hook J N and Maguen S (2018) Development of the self-forgiveness dual-process scale. Journal of Counseling Psychology 65(6): 715-726. Griswold C (2007) Forgiveness: A philosophical exploration. Cambridge, UK: Cambridge University Press. Gulliford L. (2004) Intrapersonal forgiveness. In: Watts F & Gulliford L (eds) Forgiveness in context: Theology and psychology in creative dialogue. London, UK: T & T Clark International, 83-105. Hall J H and Fincham F D (2005) Self-forgiveness: The stepchild of forgiveness research. Journal of Social and Clinical Psychology 24(5): 621-637. Hall J H and Fincham F D (2008) The temporal course of self-forgiveness. Journal of Social and Clinical Psychology 27(2): 174-202. Hansen T and Umbreit M (2018) Regenerative justice, beyond restoring. Contemporary Justice Review 21(2): 185-207. Hayes H (2006) Apologies and accounts in youth justice conferencing: Reinterpreting research outcomes. Contemporary Justice Review 9(4): 369-385. Hayes H. (2007) Reoffending and restorative justice. In: Johnstone G & Van Ness D W (eds) Handbook of restorative justice. Devon, UK: Willan Publishing, 426-444. 34 Hayes H and Daly K (2003) Youth justice conferencing and reoffending. Justice Quarterly 20(4): 725-764. Holmgren M R. (2002) Forgiveness and self-forgiveness in psychotherapy. In: Lamb S & Murphy J G (eds) Before forgiving: Cautionary views of forgiveness in psychotherapy. Oxford, UK: Oxford University Press, 112-135. Holmgren M R (2012) Forgiveness and retribution: Responding to wrongdoing. New York, NY: Cambridge University Press. Jenkins T (2018) Offence-related effects and perceptions of forgiveness: Experiences of victims and offenders. Doctoral dissertation, Griffith University. Kenney J S and Clairmont D (2008) Using the victim role as both sword and shield: The interactional dynamics of restorative justice sessions. Journal of Contemporary Ethnography 38(3): 279-307. Kim H J and Gerber J (2012) The effectiveness of reintegrative shaming and restorative justice conferences: Focusing on juvenile offenders’ perceptions in Australian Reintegrative Shaming Experiments. International Journal of Offender Therapy and Comparative Criminology 56(7): 1063-1079. Kim J J and Enright R D (2014) A theological and psychological defense of self- forgiveness: Implications for counseling. Journal of Psychology and Theology 42(3): 260-268. 35 King S (2013) Early desistance narratives: A qualitative analysis of probationers’ transitions towards desistance. Punishment & Society 15(2): 147-165. Latimer J Muise D and Dowden C (2005) The effectiveness of restorative justice practices: A meta-analysis. The Prison Journal 85(2): 127-144. Lauwaert K and Aertsen I (2016) With a little help from a friend: Desistance through victim-offender mediation in Belgium. Restorative Justice 4(3): 345-368. LeBel T P Burnett R Maruna S and Bushway S (2008) The 'chicken and egg' of subjective and social factors in desistance from crime. European Journal of Criminology 5(2): 131-159. Livingstone N Macdonald G and Carr N. (2013). Restorative justice conferencing for reducing recidivism in young offenders (aged 7 to 21) Cochrane Dataase of Systematic Reviews: Cochrane Collaboration. Lofton B P. (2004) Does restorative justice challenge systemic injustices? In: Zehr H & Toews B (eds) Critical issues in restorative justice. Boulder, CO: Criminal Justice Press, 381-390. Maruna S (2001) Making good: How ex-convicts reform and rebuild their lives. Washington, D.C.: American Psychological Association. Maruna S (2016) Desistance and restorative justice: It's now or never. Restorative Justice 4(3): 289. 36 Maruna S Immarigeon R and LeBel T P. (2004a) Ex-offender reintegration: Theory and practice. In: Maruna S & Immarigeon R (eds) After crime and punishment: Pathways to offender reintegration. Devon, UK: Willan Publishing, 3-26. Maruna S Porter L and Carvalho I (2004b) The liverpool desistance study and probation practice: Opening the dialogue. Probation Journal 51(3): 221-232. Mauss M (1966) The gift: Forms and functions of exchange in archaic societies (Cunnison I, Trans.). Mansfield Centre, CT: Martino Publishing. Maxwell G. (2008) Crossing cultural boundaries: Implementing restorative justice in international and indigenous contexts. In: Miller H V (ed), Restorative justice: From theory to practice. Bingley, UK: Emerald Group Publishing, 81-95. Maxwell G Kingi V Robertson J Morris A Cunningham C and Lash B. (2004). Achieving effective outcomes in youth justice final report. Wellington, New Zealand: New Zealand Ministry of Social Development. McConnell J M (2015) A conceptual-theoretical-empirical framework for self- forgiveness: Implications for research and practice. Basic and Applied Social Psychology 37(3): 143-164. McGaffin B J Lyons G C B and Deane F P (2013) Self-forgiveness, shame, and guilt in recovery from drug and alcohol problems. Substance Abuse 34(4): 396-404. 37 Miller S L and Hefner M K (2015) Procedural justice for victims and offenders?: Exploring restorative justice processes in Australia and the Us. Justice Quarterly 32(1): 142-167. Murphy J G (2003) Getting even: Forgiveness and its limits. Oxford, UK: Oxford University Press. Newell T (2007) Face to face with violence and its effects: Restorative justice practice at work. Probation Journal 54(3): 227-238. O'Mahony D and Doak J (2017) Reimaging restorative justice: Agency and accountability in the criminal process. London, UK: Bloomsbury. Österman L and Masson I (2018) Restorative justice with female offenders: The neglected role of gender in restorative conferencing. Feminist Criminology 13(1): 3-27. Paternoster R and Bushway S (2009) Desistance and the "feared self": Toward an identity theory of criminal desistance. The Journal of Criminal Law and Criminology 99(4): 1103-1156. Rangganadhan A R and Todorov N (2010) Personality and self-forgiveness: The roles of shame, guilt, empathy and conciliatory behavior. Journal of Social and Clinical Psychology 29(1): 1-22. 38 Retzinger S M and Scheff T J. (1996) Strategy for community conferences: Emotions and social bonds. In: Galaway B & Hudson J (eds) Restorative justice: International perspectives. Monsey, NY: Criminal Justice Press, 315-336. Ricœur P (2004) Memory, history, forgetting (Blamey K & Pellauer D, Trans.). Chicago, IL: University of Chicago Press. Rocque M Posick C and Paternoster R (2016) Identities through time: An exploration of identity change as a cause of desistance. Justice Quarterly 33(1): 45-72. Rodermond E Kruttschnitt C Slotboom A-M and Bijleveld C C J H (2016) Female desistance: A review of the literature. European Journal of Criminology 13(1): 3-28. Rossner M (2013) Just emotions: Rituals of restorative justice. Oxford, UK: Oxford University Press. Rossner M and Bruce J (2018) Trajectories and typologies of pre-sentence restorative justice rituals. Australian & New Zealand Journal of Criminology 51(4): 502- 518. Sampson R J and Laub J H (1993) Crime in the making: Pathways and turning points through life. Cambridge, MA: Harvard University Press. Shapland J (2016) Forgiveness and restorative justice: Is it necessary? Is it helpful? Oxford Journal of Law and Religion 5(2): 94-112. 39 Sherman L W Strang H Angel C Woods D Barnes G C Bennett S and Inkpen N (2005) Effects of face-to-face restorative justice on victims of crime in four randomized, controlled trials. Journal of Experimental Criminology 1(3): 367-395. Sherman L W Strang H Mayo-Wilson E Woods D J and Ariel B (2015) Are restorative justice conferences effective in reducing repeat offending? Findings from a campbell systematic review. Journal of Quantitative Criminology 31(1): 1-24. Snow N E (1993) Self-forgiveness. The Journal of Value Inquiry 27(1): 75-80. Stein E (1989) On the problem of empathy (Stein W, Trans.). Washington, DC: ICS Publications. Strang H Sherman L W Woods D and Barnes G C. (2011). Experiments in restorative policing: Final report on the Canberra Reintegrative Shaming Experiments (RISE). Canberra, Australia: Australian Institute of Criminology. Strelan P. (2017) The measurement of dispositional self-forgiveness. In: Woodyatt L, Worthington E L J, Wenzel M & Griffin B J (eds) Handbook of the psychology of self-forgiveness. Cham, Switzerland: Springer, 75-86. Suzuki M and Wood W R (2017) Restorative justice conferencing as a 'holistic' process: Convenor perspectives. Current Issues in Criminal Justice 28(3): 277-292. Suzuki M and Wood W R (2018) Is restorative justice conferencing appropriate for youth offenders? Criminology & Criminal Justice 18(4): 450-467. 40 Szablowinski Z (2012) Self-forgiveness and forgiveness. The Heythrop Journal 53(4): 678-689. Tangney J P Boone A L and Dearing R L. (2005) Forgiving the self: Conceptual issues and empirical findings. In: Worthington E L J (ed), Handbook of forgiveness. New York, NY: Routledge, 143-158. Toews B (2016) This backyard is my serenity place: Learning from incarcerated women about the architecture and design of restorative justice. Restorative Justice 4(2): 214-236. Umbreit M S Blevins J and Lewis T (2015) The energy of forgiveness: Lessons from those in restorative dialogue. Eugene, OR: Cascade Publications. Umbreit M S Vos B Coates R B and Armour M P (2006) Victims of severe violence in mediated dialogue with offender: The impact of the first multi-site study in the u.S. International Review of Victimology 13(1): 27-48. Van Stokkom B (2008) Forgiveness and reconciliation in restorative justice conferences. Ethical Perspectives 15(3): 399-418. Walgrave L (2011) Investigating the potentials of restorative justice practice. Journal of Law & Policy 36(1): 91-139. Walgrave L Ward T and Zinsstag E (2019) When restorative justice meets the good lives model: Contributing to a criminology of trust. European Journal of Criminology. 41 Webb J R Bumgarner D J Conway-Williams E Dangel T and Hall B B (2017) A consensus definition of self-forgiveness: Implications for assessment and treatment. Spirituality in Clinical Practice 4(3): 216-227. Wenzel M Woodyatt L and Hedrick K (2012) No genuine self-forgiveness without accepting responsibility: Value reaffirmation as a key to maintaining positive self-regard: Genuine self-forgiveness. European Journal of Social Psychology 42(5): 617-627. Williston B (2012) The importance of self-forgiveness. American Philosophical Quarterly 49(1): 67-80. Wohl M J A DeShea L and Wahkinney R L (2008) Looking within: Measuring state self-forgiveness and its relationship to psychological well-being. Canadian Journal of Behavioural Science 40(1): 1-10. Wohl M J A and McLaughlin K J (2014) Self-forgiveness: The good, the bad, and the ugly: Self-forgiveness. Social and Personality Psychology Compass 8(8): 422- 435. Woodyatt L and Wenzel M (2013) Self-forgiveness and restoration of an offender following an interpersonal transgression. Journal of Social and Clinical Psychology 32(2): 225-259. Woodyatt L Worthington E L J Wenzel M and Griffin B J. (2017) Orientation to the psychology of self-forgiveness. In: Woodyatt L, Worthington E L J, Wenzel M 42 & Griffin B J (eds) Handbook of the psychology of self-forgiveness. Cham, Switzerland: Springer, 3-16. Zehr H (2002) The little book of restorative justice. Intercourse, PA: Good Books. 43 Figure 1. Process-Based Model of Self-Forgiveness in RJ Partial responsibility Persistence of offending Full responsibility • Acknowledged shame • Community of care • Agreement compliance Genuine self-forgiveness Desistance Pseudo self-forgiveness Denial of responsibility No self-forgiveness • Transformed identity • Commitment to future law-abiding behaviour Partial responsibility Persistence of offending 
work_sq3jkiqz7zcg3eyoibdkgd7rpu	----	- otl a A D D 51 1 / 0 2 0 2 +e cij da*G MFT SH 9 NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD fi.otlaa.www + SSENISUB YMONOCE + TRA + NGISED ERUTCETIHCRA + ECNEICS YGOLONHCET REVOSSORC LAROTCOD SNOITATRESSID n at k o M j a R m at u a G t r o p s n ar T at a D kr o wt e N ni s t n e m n gi ss A e cr u os e R y ti sr ev i n U ot l a A 0202 gnikrowteN dna snoitacinummoC fo tnemtrapeD ni stnemngissA ecruoseR tropsnarT ataD krowteN natkoM jaR matuaG LAROTCOD SNOITATRESSID - otl a A D D 51 1 / 0 2 0 2 +e cij da*G MFT SH 9 NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD fi.otlaa.www + SSENISUB YMONOCE + TRA + NGISED ERUTCETIHCRA + ECNEICS YGOLONHCET REVOSSORC LAROTCOD SNOITATRESSID n at k o M j a R m at u a G t r o p s n ar T at a D kr o wt e N ni s t n e m n gi ss A e cr u os e R y ti sr ev i n U ot l a A 0202 gnikrowteN dna snoitacinummoC fo tnemtrapeD ni stnemngissA ecruoseR tropsnarT ataD krowteN natkoM jaR matuaG LAROTCOD SNOITATRESSID - otl a A D D 51 1 / 0 2 0 2 +e cij da*G MFT SH 9 NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD fi.otlaa.www + SSENISUB YMONOCE + TRA + NGISED ERUTCETIHCRA + ECNEICS YGOLONHCET REVOSSORC LAROTCOD SNOITATRESSID n at k o M j a R m at u a G t r o p s n ar T at a D kr o wt e N ni s t n e m n gi ss A e cr u os e R y ti sr ev i n U ot l a A 0202 gnikrowteN dna snoitacinummoC fo tnemtrapeD ni stnemngissA ecruoseR tropsnarT ataD krowteN natkoM jaR matuaG LAROTCOD SNOITATRESSID seires noitacilbup ytisrevinU otlaA SNOITATRESSID LAROTCOD 511 / 0202 ataD krowteN ni stnemngissA ecruoseR tropsnarT natkoM jaR matuaG fo rotcoD fo eerged eht rof detelpmoc noitatressid larotcod A eht fo noissimrep eht htiw ,dednefed eb ot )ygolonhceT( ecneicS cilbup a ta ,gnireenignE lacirtcelE fo loohcS ytisrevinU otlaA 11 no loohcs eht fo 1SA llah erutcel eht ta dleh noitanimaxe .21 ta 0202 rebmetpeS ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD Printed matter 4041-0619 N O R D IC SW AN ECOLA B E L Printed matter 1234 5678 rosseforp gnisivrepuS dnalnIF ,ytisrevinU otlaA ,rennaM akkuJ rosseforP rosivda sisehT dnalnIF ,ytisrevinU otlaA ,rennaM akkuJ rosseforP srenimaxe yranimilerP dnalniF ,iknisleH fo ytisrevinU ,ujrahsagnaK issuJ rosseforP nedewS ,ytisrevinU datslraK ,mörtsnurB annA rosseforP tnenoppO dnalniF ,iknisleH fo ytisrevinU ,nenokkiM immoT rosseforP seires noitacilbup ytisrevinU otlaA SNOITATRESSID LAROTCOD 511 / 0202 © 0202 natkoM jaR matuaG NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( :NBSI:NRU/if.nru//:ptth 1-3893-06-259-879 yO aifarginU iknisleH 0202 dnalniF tcartsbA otlaA 67000-IF ,00011 xoB .O.P ,ytisrevinU otlaA if.otlaa.www rohtuA natkoM jaR matuaG noitatressid larotcod eht fo emaN tropsnarT ataD krowteN ni stnemngissA ecruoseR rehsilbuP gnireenignE lacirtcelE fo loohcS tinU gnikrowteN dna snoitacinummoC fo tnemtrapeD seireS seires noitacilbup ytisrevinU otlaA SNOITATRESSID LAROTCOD 511 / 0202 hcraeser fo dleiF ygolonhcet gnikrowteN dettimbus tpircsunaM 9102 rebmeceD 9 ecnefed eht fo etaD 0202 rebmetpeS 11 )etad( detnarg ecnefed cilbup rof noissimreP 0202 hcraM 21 egaugnaL hsilgnE hpargonoM noitatressid elcitrA noitatressid yassE tcartsbA nredom eht ni noitpoda dna noitnevni rieht ecnis yaw gnol a emoc evah skrowten noitacinummoC seitivitca hcihw ta deeps eht dna snoitcnuf yteicos woh degnahc yllatnemadnuf evah yehT .yteicos yevnoc ot skrowten s'yadot hguorht detropsnart si atad fo tnuoma lassoloC .detcudnoc era dna noitamrofni tsegral eht si tenretnI ehT .stniop dne suoirav neewteb noitamrofni refsnart atad fo muidem nommoc a sa stniop dne fo snoillib yb derahs krowten noitacinummoc .yadot ,doirep emit nevig a nihtiw skrowten eseht hguorht detropsnart eb nac taht atad fo tnuoma ehT ,dnA .stniop dne tnereffid eht neewteb derahs ecruoser lapicnirp eht si ,htdiwdnab sa nwonk osla secruoser fo yticracs ,yteicos nredom ot elbaliava secruoser etinfi rehto ynam htiw esac eht si sa .noitubirtsid ecruoser fo semehcs suoirav fo tnempoleved eht ot del sah atad gnitropsnart rof msinahcem tnanimod eht si )PCT( locotorP lortnoC noissimsnarT ehT eht taht gnirusne sa hcus seitilanoitcnuf suoirav sedivorp tI .tenretnI eht ni stniop dne neewteb krowten eht dna reviecer eht gnitneverp dna stniop dne eht neewteb ylbailer detropsnart si atad smsinahcem lortnoc noitsegnoc stnemelpmi PCT .tnes atad hcum oot yb demlehwrevo gnieb morf .yticapac krowten eht erahs nac swofl elpitlum taht os a gnisu ,skrowten noitacinummoc ni secruoser krowten fo gnirahs eht sesylana siseht sihT ytilitu dne rieht fo sseldrager lauqe sa swofl lla staert PCT ,yllanoitidarT .tnairav PCT dezimotsuc sesylana hcraeser sihT .wofl hcae ot htdiwdnab krowten eht fo erahs lauqe edivorp ot stpmetta dna deredisnoc era srefsnart atad gnol dna trohs ,yllacfiicepS .noitpmussa taht tuohtiw oiranecs a lortnoc noitsegnoc PCT a depoleved krow hcraeser eht ,tpecnoc hcus fo noitatsefinam a sA .lauqenu ehT .sepyt wofl tnereffid ot yticapac krowten fo erahs tnereffid edivorp ot elba saw hcihw tnairav noiton eht etagitsevni ot sgnittes elpitlum rednu detset neht saw locotorp eht fo ecnamrofrep .egral ta tnemyolped rof snoitacilpmi eht etaulave dna rehtruf cimonoce-oicos osla tub lacinhcet tsuj ton tirem melborp tnemngissa ecruoser eht ot snoituloS ni semehcs tnemngissa ecruoser tnereffid fo tnempoleved eht serolpxe hcraeser ehT .sisylana eht gnidneherpmoc yB .skrowten noitacinummoc ni semehcs suogolana sdnfi dna egral ta yteicos elihw desserdda eb ot snrecnoc lareves ,yteicos eht ni tnelaverp ssenriaf fo snoiton suoirav .defiitnedi era semehcs tnemngissa ecruoser gnipoleved sdrowyeK ssenriaF ,PCT ,tropsnarT ataD krowteN ,tnemngissA ecruoseR )detnirp( NBSI 4-2893-06-259-879 )fdp( NBSI 1-3893-06-259-879 )detnirp( NSSI 4394-9971 )fdp( NSSI 2494-9971 rehsilbup fo noitacoL iknisleH gnitnirp fo noitacoL iknisleH raeY 0202 segaP 231 nru :NBSI:NRU/fi.nru//:ptth 1-3893-06-259-879 Preface This thesis is the outcome of my research and learning at the Department of Communications and Networking, Aalto University, Helsinki, Finland. It has been my privilege to have Professor Jukka Manner as my supervisor and I would like to thank him for providing the opportunity to pursue my doctoral research in this area. His guidance, support, patience and encouragement have been very valuable during the whole process. Dr. Sebastian Sonntag inspired me to venture into this area and I owe him tremendous gratitude. Having Dr. Nuutti Varis as my instructor was one of the turning point of this process and I would like to thank him for the insightful reviews of my works. Discussions with him on various topics of the research helped sort out the work and eventually finish it. I also would like to express my gratitude towards my other co-authors; Dr. Lennart Schulte, Dr. Mikko Särelä and Saurabh Pokhrel for their valuable inputs into the research. Collaboration with them was very helpful in shaping this research. I would like to thank my pre-examiners Professor Anna Brunstrom and Profes- sor Jussi Kangasharju for their valuable feedback. Their comments have helped improve the quality of the thesis. Special thank you goes to Professor Tommi Mikkonen for accepting to examine my thesis as an opponent. Many thank you to all my colleagues and friends at the department during the research period. Dr. Prajwal Osti, Dr. Pramod Jacob, Arseny Kurnikov, Antti Jaakkola, Dr. Timo Kiravuo, Dr. Le Wang have been there with me through this research process in many ways both inside and outside academia. Timi Lehtola, Victor Nässi and Markus Peuhkuri have been very helpful with various technical support for the research work. I am grateful to the department secretaries for helping me with various travel arrangements during my conference and study trips. My research was supported by TEKES funded projects such as "Future Inter- net" (FI-SHOK) program and "Speedifier" Projects. I would also like to thank the Elisa HPY research foundation for their grant Support. Dr. Prem Raj Adhikari, Dr. Sandeep Tamrakar, Dr. Subash Khanal, Dr. Roshan Chudal, Tekendra Timsina along with all my other friends have also played significant role in making this journey wonderful. I thank you all for the 1 Preface camaraderie we established over the years. I am blessed to have the everlasting love, support and blessings of my father Dhan Raj Lama and my mother Jamuna Moktan. My sincerest gratitude to my whole family. And my wife Jyoti, whose patience and love I am lucky to have, I thank you for everything, especially for bringing our beautiful daughter Kelsang to this world, to whom I dedicate this book. Helsinki, August 5, 2020, Gautam Raj Moktan 2 Contents Preface 1 Contents 3 List of Publications 5 Author’s Contribution 7 List of Abbreviations 9 1. Introduction 11 1.1 Network Data Transport . . . . . . . . . . . . . . . . . . . . . . . 12 1.2 Motivation and Research Problem . . . . . . . . . . . . . . . . . 13 1.2.1 User Ergonomics . . . . . . . . . . . . . . . . . . . . . . 13 1.2.2 Energy Savings . . . . . . . . . . . . . . . . . . . . . . . 14 1.2.3 Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1.3 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1.4 Contributions of the thesis . . . . . . . . . . . . . . . . . . . . . . 17 1.5 Structure of the thesis . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. TCP Congestion Control and FLD_TCP 19 2.1 TCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2.2 Congestion Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 2.2.1 Congestion Signals . . . . . . . . . . . . . . . . . . . . . 22 2.2.2 End-Host Congestion Control . . . . . . . . . . . . . . 23 2.3 FLD_TCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2.3.1 Slow Start Increment Increase . . . . . . . . . . . . . . 26 2.3.2 Congestion Avoidance . . . . . . . . . . . . . . . . . . . 26 2.3.3 Threshold Selection . . . . . . . . . . . . . . . . . . . . 27 2.4 Related Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. Evaluation 31 3 Contents 3.1 Simulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 3.2 Controlled File Transfers . . . . . . . . . . . . . . . . . . . . . . . 33 3.3 Web Page Loads . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 4. Distributive Justice 45 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 4.2 Origin and Development . . . . . . . . . . . . . . . . . . . . . . . 46 4.3 Network Communications . . . . . . . . . . . . . . . . . . . . . . 48 4.3.1 Fairness notions and measures . . . . . . . . . . . . . 48 4.3.2 Prioritization under various fairness notions . . . . . 50 4.3.3 Fairness and prioritization under different utility functions . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 4.3.4 Cascading of fairness notions . . . . . . . . . . . . . . 52 4.4 Summary and Design Guidelines . . . . . . . . . . . . . . . . . . 54 5. Summary & Discussions 57 5.1 On Improving FLD_TCP . . . . . . . . . . . . . . . . . . . . . . . 58 5.2 On Network Data Transport . . . . . . . . . . . . . . . . . . . . 58 Errata 69 Publications 71 4 List of Publications This thesis consists of an overview and of the following publications which are referred to in the text by their Roman numerals. I G. R. Moktan, S. Siikavirta, M. Särelä and J. Manner. Favoring the Short. In 2012 Proc. of INFOCOM Conference on Computer Communications Workshops, Orlando, USA, pp. 31-36, Mar. 2012. IEEE. II G. R. Moktan, S. Pokhrel, L. Schulte, M. Särelä and J. Manner. Performance Analysis of a Short Flow Favoring TCP. In 2014 Proc. of International Confer- ence on Advances in Computing, Communications and Informatics (ICACCI), New Delhi, pp. 134-142, Sep. 2014. IEEE. III G. R. Moktan, N. Varis, and J. Manner. Utilizing Connection Usage Charac- teristics for Faster Web Data Transport. Journal of Computer Networks and Communications, Vol. 2018, Article ID 4520312, (2018). Hindawi. IV G. R. Moktan and J. Manner. Distributive Justice in Network Communi- cations. International Journal of Communication Networks and Distributed Systems, Vol. 23 No. 4, (2019), pp. 499–521. Inderscience. 5 Author’s Contribution Publication I: “Favoring the Short ” This work was mainly done by the author. The idea was formulated with J. Manner and S. Siikavirta. The author developed the simulation testbeds, carried out the experiments and compiled the results. The paper was drafted under the supervision of M. Särelä and J. Manner. Publication II: “Performance Analysis of a Short Flow Favoring TCP” The author developed the Linux patch with S. Pokhrel. The author designed the experiment and the evaluation methodology. S. Pokhrel conducted the experiment under the author’s supervision. The author compiled the results and drafted the paper. Publication III: “Utilizing Connection Usage Characteristics for Faster Web Data Transport ” This was joint work between the authors. The experiment setup was developed by the author with N. Varis. The author conducted the experiment and compiled the results. The paper was drafted by the author with N. Varis under the supervision of J. Manner Publication IV: “Distributive Justice in Network Communications” This paper was developed by the author with J. Manner as his supervisor. 7 List of Abbreviations 3G Third Generation 5G Fifth Generation AIMD Additive Increase Multiplicative Decrease AQM Active Queue Management BBR Bottleneck Bandwidth and RTT CDF Cumulative Distribution Function CDN Content Delivery Network CWND Congestion Window DCCP Datagram Congestion Control Protocol DelAck Delayed Acknowledgment DiffServ Differentiated Services DTLS Datagram TLS ECN Explicit Congestion Notification FIFO First-In, First-Out FLD_TCP Flow-Length Dependent Transmission Control Protocol HTTP Hypertext Transfer Protocol ICT Information and Communications Technology IntServ Integrated Services IoT Internet of Things IP Internet Protocol IW Initial Window LAN Local Area Network LEDBAT Low Extra Delay Background Transport LTE Long Term Evolution MAC Medium Access Control 9 List of Abbreviations MPTCP Multipath TCP MSS Maximum Segment Size NFV Network Functions Virtualization ns-2 Network Simulator-2 OSI Open Systems Interconnection P2P Peer-to-Peer QoS Quality of Service RED Random Early Detection RFC Request For Comments RTCP RTP Control Protocol RTO Retransmission Timeout RTP Real-Time Transport Protocol RTT Round-Trip Time SACK Selective Acknowledgment SCTP Stream Control Transmission Protocol SDN Software-Defined Networking SRTT Smoothed Round-Trip Time TCP Transmission Control Protocol TCP/IP Transmission Control Protocol/Internet Proto- col TLS Transport Layer Security UDP User Datagram Protocol 10 1. Introduction As of February 2019, there are more than 180 million active websites on the Internet [1]. This demonstrates how far the concept of a “Galactic network”, introduced in 1962 by J.C.R. Licklider, has come since its inception. While originally intended to share raw data among researchers, the Internet at present day is used for virtually everything from social-networking, e-mails, e-commerce, entertainment, news and telecommunications to many other services. Every day many new forms of services are being developed and launched on it. Internet is just the name by which we know the largest communication net- work in human history. As any communication network, its main function is to relay information from the sender to the receiver. The Open Systems Intercon- nection (OSI) model [2] views communication networks as consisting of several abstraction layers, each capable of providing a set of functionalities, upon which the adjacent layers can independently communicate through a standardized interface. The Internet architecture uses a less strict abstraction, also known as the Transmission Control Protocol/Internet Protocol (TCP/IP) protocol suite, which consists of four loosely defined abstraction layers, namely, the application layer, the transport layer, the internet layer and the link layer [3]. This modular layered design provided many beneficial properties to the TCP/IP stack such as interoperability, independence and flexibility. This resulted in its proliferation as various feature developments could be undertaken at each layer as well as various services could be built independently over it. As the Internet evolved, services such as file transfers, email and the world wide web were built over the application layer. The transport layer protocols were developed to fulfill the data delivery between communicating applications. Addressing/routing problems were handled by the internet layer and various routing technologies were developed for it. Similarly developments in the link and the physical layers allowed efficient ways to move the data into various physical media. The rapid evolution of services on the world wide web eventually cemented the Internet’s fate to be the largest communication network today. Its archi- tecture allows information in various formats to be generated in web servers that is accessible from a client host application such as a browser. The browser fetches information through the network and renders them for the users’ view- 11 Introduction ing. The Hypertext Transfer Protocol (HTTP) [4] protocol is used to transfer the information with a client-server model between the browsers and the servers. Underneath HTTP, the transport layer takes care of transporting the informa- tion carrying data between the end points. Similarly, other applications also use the same underlying layers for transporting their data which can be of streaming nature or discrete file transfers. 1.1 Network Data Transport The transport layer provides end-to-end services to communicating applications in areas such as reliability, flow control, congestion control, multiplexing, etc. Different transport protocols exist at this layer that are able to provide certain sets of such services. Protocols are taken into use by the application layer depending on the requirements. In some cases, a transport layer service (such as reliability or congestion control) can be built into the application layer. Hence, such service is not required of the transport layer. Transport protocols can either work in connection-oriented or connectionless mode. Transmission Control Protocol (TCP) and User Datagram Protocol (UDP) [3] are the most common protocols for each respective modes. TCP can provide reliable and ordered bidirectional data transfer between the endpoints along with flow control and congestion control. UDP is unidirectional and provides no such features but, on the other hand, it is light weight and suitable for real-time services. Stream Control Transmission Protocol (SCTP) [5] is a connection ori- ented protocol that allows for multi-homing support for data transport although Multipath TCP (MPTCP) [6] also allows TCP to support multi-homing. Reliabil- ity and ordering of delivered packets can be optional in SCTP and its congestion control features are like that of TCP. Datagram Congestion Control Protocol (DCCP) [7] on the other hand provides congestion control without reliability and ordered delivery. Similarly, for various applications, additional services are provided on top of the transport protocol by protocols that can be considered pseudo-transport protocols. Security features can be provided to the data transport by using Trans- port Layer Security (TLS) [8] or Datagram TLS (DTLS) [9] whereby the data is encrypted during transport. For real-time applications, Real-Time Transport Protocol (RTP) in association with RTP Control Protocol (RTCP) [10] provide support for connection setup, rate control and performance metric reporting among others. HTTP [4] is a protocol to transfer primarily discrete objects such as files over the Internet and it provides various services to the application that use it. It allows applications to exchange data in different formats and encodings. It also uses lower layers protocols to provide their services to the application layer (such as security with TLS). Using persistent connection (HTTP 1.1 [11] and HTTP 2.0 [12]) it allows multiple objects transfers to be done with the same connection and 12 Introduction avoid connection setup delays. HTTP 2.0 also allows multiplexed transfers of the objects in the same connection. These methods help improve the data transfer speeds for the applications on the world wide web. HTTP 3.0 [13] over QUIC is another alternative to the combination of TCP, TLS and HTTP 2.0. Originally coming out of Google’s initiative to improve Internet latency [14], it utilizes UDP instead of TCP on the transport layer which leads to improved connection setup and enables better support for multi-streaming. In a distinct paradigm shift, it pushes for features such as congestion control and error recovery to be implemented in the user space. Applications on the Internet have at their disposal many of the above transport protocols when determining a suitable protocol for them. Thus, the Internet paths are shared by data traffic using many transport protocols. In the next section, we describe the motivation and research problem addressed in this thesis. 1.2 Motivation and Research Problem Improved data transport not only provides better user experiences for the ser- vices using it, but also helps to cut back on the amount of energy spent moving the bits on todays networks. Quality of Service (QoS) approaches at the Internet Protocol (IP) layer such as Integrated Services (IntServ) [15] and Differenti- ated Services (DiffServ) [16] have been developed to allow for services to attain various amounts of network resources for their operations. The objective of this research is to examine the network resource sharing mechanisms at the data transport layer for a more efficient data transport in terms of transfer time. And since congestion control has assumed the task of resource allocation at the transport layer, for technical implementation and analysis, the research is focused on the dominant transport protocol on the Internet, i.e. TCP and specifically on its sender side rate control mechanisms. We describe the motivations for this research in more detail in the next few subsections. 1.2.1 User Ergonomics Many developments have been undertaken to make web usage more ergonomic and to improve user experience. While better visual designs of websites or the way a user can surf around the contents creates pleasant experiences, user’s cognitive ability to perceive network delay and its effects on the derived utility also plays a significant role. As an example, Amazon found that every 100 ms increase in the page load time would decrease sales by 1%, while for Google, a 500 ms increase in delay of search results display time would reduce revenue by 20% [17]. A survey conducted by Wichita State University shows that the frustration levels of users, 13 Introduction if not lostness, does increase as the time taken to download a page becomes longer. They found significant differences in frustration levels between the delays of 1s, 30s and 60s [18]. Another study [19] reveals that the users prefer graphical websites only if the delay is shorter. It implies that the utility of graphics on a website is directly related to the time it takes to load at the users node. Modern day websites are graphically rich in terms of both content and adver- tisements. So, they need to focus on minimizing the delay. It has been seen that a users sensitivity to delay is different for transfer of text-only documents and for multimedia graphics [20]. The median size of a web page on desktop is ∼1.8 MB, while on mobile it is ∼1.6 MB. Median size of images is almost 1 MB and javaScripts have median size of ∼400 KB [21]. More than 99% of the Internet traffic flows are short(<100 KB) [22]. Remaining traffic flows like audio, video streaming, Peer-to-Peer (P2P) file transfers, database synchronization, etc are long. While the time taken to transfer a piece of information from a source to a user, i.e., delay, makes a valuable difference in a service utility, there are also services like audio streaming where disruptions, rather than the delays, bother the users more. Activities like movie downloads and database synchronization can tolerate delays better too. Users have higher tolerance to delay occurring in background applications. Thus, delay tolerance is subject to the nature of utility of the service. What we can infer from these information is that most of the users’ perception of delay is more evident in the shorter flows. Also most flows constituting the Internet traffic are short. Hence, prioritizing the shorter flows to the longer ones while minimizing the transfer delay is valuable to improve Internet’s utility for end users. 1.2.2 Energy Savings The field of Information and Communications Technology (ICT) is very concerned about energy conservation since it is one of the major contributor to the global energy consumption. Datacenters alone in the United States are projected to consume some 73 Billion kWh in 2020 [23]. A significant portion of that energy is spent in data transmission. Wireless mobile devices are constantly exploring ways for longer battery time. Improvement efforts have been made with low power processors, efficient mem- ory schemes, display techniques and power management units [24]. It has become more crucial with the Internet of Things (IoT) projecting billions of devices connecting to the Internet in the near future. In case of wireless data transmissions, the energy cost per bit for wireless transmission is more than 1000 times than the energy cost for single compu- tation of that bit [25]. Even when the radio is ON but in "idle-listening" mode, it still consumes the same amount of energy as when it is active [26]. The 14 Introduction switching on and off of the radio links also affect the energy consumed. Thus, by making data transport more efficient we can achieve energy savings in network communications. 1.2.3 Fairness While more than 99% of the Internet traffic flows are short (<100 KB) [22], most of the bytes in the network(>78%) are contributed by long flows [27]. They both compete for the same network resources while being transported between end points. For the TCP sessions, all flows irrespective of their lengths, obtain the same flow rate in the network. This is an artefact of the congestion control algorithm employed in TCP. Any other flow whose long term throughput does not exceed the throughput of a conformant TCP is referred to as a TCP friendly flow [28]. TCP’s flow rate allocation is max-min fair (meaning that an increase of rate for any flow is at the cost of decrease of some already smaller flow rate). There have been discussions on the practicality of blindly using flow rate as fairness measure [29]. In wireless transmission, a different fairness notion is used, targeted for usage efficiency of the transmission medium. Thus, it seems that there is not a common rationale for choosing one criteria over another across the network stack. Figure 1.1. Illustration of link sharing An example would be the case illustrated in Figure 1.1. If the small transfer (short flow), in terms of bytes, were prioritized and allowed greater share of the bandwidth, its transfer time would be significantly reduced without incurring significant (if any) delay to the large transfer. Also, giving service to the job with the shortest-remaining-processing-time (SRPT) is an optimal [30] strategy in minimizing the mean response time. As discussed earlier, a huge proportion of the Internet flows would benefit from such arrangement. Alongside, another set of development also exist in this area that do not follow the TCP-friendly paradigm for data transport. Some discussions [31] on this front are in fact proposing that the TCP-friendly fairness criteria should be dropped. And some point out that it has no significant philosophical, social or real life basis [29]. TCP auto tuning features [32] allow end hosts to vary their share in resource allocations. Many applications are using UDP or other 15 Introduction proprietary protocols, and many even make use of multiple parallel connections. TCP-friendliness is slowly losing its meaning in today’s Internet. How much resources to assign to which entity and based on what parameters is an important question in many areas where resources are finite. It is even more significant in the case of the Internet, not only due to the plethora of services running on it, but also due to the diversity of its stakeholders, administrative realms and constantly changing market forces. There is no one-size-fits-all design principle in the way network resources are allocated to the applications running on it. Nevertheless, due analysis to the justification of why one notion suits over other should be included in the process of designing and administrat- ing of communication networks. Justice and fairness are social concepts that have been studied in the socio-economic realm for a long time. Understanding how they are conveyed in the networking world is important for anyone trying to develop resource assignment schemes in the context of communication networks. Thus, this research work embarks with multi-fold motivations. Improving perceived delay would make network services consumption more pleasing and could also provide a positive impact on service provider revenue. A holistic view of the Internet traffic patterns provides potential areas to be leveraged for instrumenting such improvements. There is a real opportunity to improve energy efficiency in the area of network communications. And furthermore, this leads us directly to face the questions of fairness and resource allocation for which we have reference models (with significant history) in the other areas of society. With these motivations, this thesis is primarily focused to the following questions: • Can TCP sender side congestion control mechanism be modified for differential treatment of short and long flows ? How much of a difference would such modification make for applications such as file transfers and web browsing? • How does communications network resource assignment work in contrast to other real world resource assignment schemes? What are the important considerations while developing and implementing such schemes to satisfy user needs as well as achieve network utilization efficiency ? 1.3 Methodology Resource sharing principles apply to all transport protocols that share the network paths. However, in terms of technical implementation and analysis, the scope of this thesis is focused on TCP and its sender side congestion control mechanism. Namely, the comparison is done amongst our own variant of TCP (Flow-Length Dependent Transmission Control Protocol (FLD_TCP)), Cubic TCP and TCP Reno. In terms of the distributive justice aspect, the socio-economic 16 Introduction analysis and discussions presented in this work can be incorporated to other non-TCP modes of network data transport as well. The methodology adopted is to demonstrate how a resource assignment policy can be implemented to realize differential treatment of short and long flows in data transport. This is then used to segue into the other focus of this research which is to analyze various resource assignment schemes. One aspect of the research is to analyze the dominant data transport proto- col, TCP, in an alternate paradigm that differs from the conventional flow-rate fairness dogma. Thus, the methodology adopted for this analysis was to modify the way TCP transports data, conduct measurement experiments and analyze the results. Namely we change the algorithm for sending the data over the network. Then we test the performance of such modified data transport protocol. The first performance analysis was done in a simulation environment, Network Simulator-2 (ns-2) [33]. This was for the sake of simplicity as well as ability to control the operating parameters of the protocol itself. Compared to standard TCP, we observed data transport with almost twice the speed. Then, we im- plemented a slight variation of the algorithm (described in section 2.3.2) to a Linux kernel and measured the performance with file transfers. We obtained ∼30% improvement in the data transfer speed in comparison to standard TCP. Also to evaluate the real world use cases, the implications for modern web traf- fic was measured by setting up the algorithm in proxy servers and analyzing performance during the web page loads of hundreds of real world websites. In this scenario, the measured benefits, while still significant, were not to the same levels seen in the more controlled previous evaluation experiments due to the composite nature of modern day web page loads. These incremental development and evaluation (starting from simulation experiments towards actual Linux implementation) allowed for utilizing the learning of each step’s evaluation on to the development of the next step. The approach is still limited by the emulated test environment (number and type of networks, devices, websites used in the evaluation). But as a demonstrative example, it serves the purpose of building the argument case with regards to the other question focused by this thesis, the resource assignment issues and challenges in the modern data transport. The other aspect of the research was to analyze the justifications over which the current communication networks resource sharing mechanisms are built. We explored how different notions of distributive justice and fairness have originated and prevailed in the society at large. We developed a framework of how real world fairness notions translate to the TCP friendliness notions in network data transport and identified the caveats of such notions. 1.4 Contributions of the thesis This thesis summarizes the work done in analyzing the principles of resource sharing mechanisms in network data transport. The thesis contributions consist 17 Introduction of identifying the multiple end goals of efficient data transport. The research outputs include an algorithm named FLD_TCP to provide for ways to achieving those goals. The new algorithm, described in Publication I, enabled aggressive sending rate as long as the flow length was short and be laid back in case of longer flows. The thesis provides comprehensive evaluations of the algorithm in simulation environment as well as real world settings. A Linux patch was developed creat- ing sender side modifications to the TCP stack’s congestion control mechanism. The algorithm’s benefits, as presented in Publication II and Publication III, are quantified in terms of file transfers as well as web page loads over various network conditions. The thesis also provides a holistic and pragmatic view to the issues of distribu- tive justice in network resources assignment. The philosophical background for the origins of justice and fairness policies are identified. Then the resource assignment mechanisms in practice in many economic activities are contrasted to that of the communication networks. The thesis also demonstrates how cascaded policies can have an unanticipated effect in the aggregated resource as- signment and that the policies are not commutative. The thesis prescribes rough guidelines to be considered while making judgments about resource assignment policies and their implementation. This work is presented in Publication IV. 1.5 Structure of the thesis In this chapter, we described the motivations behind the research topic of the thesis. We begin in chapter 2 with a background on TCP and its congestion control mechanisms. We also describe the technical details of an alternate data transport protocol, FLD_TCP, with regards to network sharing and congestion. In Chapter 3, we provide the performance evaluation results of the algorithm. Evaluations are in both simulation environment and real world scenarios. In Chapter 4, we discuss the holistic view of real world resource assignments policies and how they translate to communication networks. We analyze the fairness notions and provide some caveats when used in the context of communi- cation networks. In Chapter 5, potential improvement areas for FLD_TCP are discussed. A dis- cussion addressing modern day communication networks’ stakeholders and its drivers for evolution is presented which reinforces the rationale of the research work. 18 2. TCP Congestion Control and FLD_TCP In this chapter, we look into the functionalities of TCP and congestion control. Various developments have resulted into many different variants of TCP. We will go through the prominent ones among them. We also describe few changes to some of the TCP sender side algorithms that resulted into our variant of TCP, Flow-Length Dependent TCP (FLD_TCP). 2.1 TCP TCP, which specializes on providing the connection-oriented mode of stream data connectivity, is the most common protocol at the transport layer. To start a data transfer, TCP connection conducts a handshake mechanism that requires 3 trips of message transfer between the client and the server. A SYN data packet is sent to the server which responds with a SYN-ACK data packet. Upon receiving the SYN-ACK packet, the client sends an ACK packet. At this point both the client and the server have received an acknowledgment of the connection after which data transfer can begin. Client Server (Data transfer) SYN SYN-ACK ACK Figure 2.1. TCP 3-way handshake. During its lifetime, a TCP session provides a multitude of services for the data transfer such as: 19 TCP Congestion Control and FLD_TCP • It provides a reliable and an ordered delivery of a stream of bytes between applications: TCP ensures the reliable delivery of data by the use of sequence numbers in packets and acknowledgments. The receiver keeps track of the sequence numbers of incoming packets and maintains a buffer for ordered delivery to the application. Received data packets are acknowledged in a cu- mulative manner which allows retransmission of the unacknowledged packets from the sender. Hence, the sequence number and the acknowledgment help to counter disorders, fragmentation and packet losses. • It is optimized for an accurate delivery rather than a timely delivery. There- fore, TCP sometimes induces relatively long delays (in the order of seconds, proportional to overall propagation delay) while waiting for out-of-order mes- sages or retransmissions of lost messages. The 16 bit checksum in the TCP header is used to verify the integrity of received data. Also, there are provi- sions to use additional checksum using the options field. The checksum ensure the header as well as the payload’s integrity. • It provides flow control, the rate at which data is exchanged to prevent over- whelming the receiver. If the sender is too fast, a slow receiver’s buffer will overflow. A sliding window flow control mechanism is used by TCP. The re- ceiver advertises its current window size in the ACKs according to which the sender limits its sending rate. If the advertised window size is 0, then the sender initiates a persist timer and stops sending until the timer expires. Sometimes the window sizes might grow smaller and smaller such that the header becomes larger than the data. This "silly window syndrome" is avoided using Nagle’s algorithm to the small packet problem [34] where the sender keeps accumulating small payloads until it is a full packet’s worth. • It controls the network traffic congestion: The networks and paths in the In- ternet have finite capacity. If a senders transmissions exceed that, the network becomes congested and packets will be lost. So, TCP has mechanisms to infer the network conditions and control its sending rate to avoid overwhelming the network. These congestion control mechanisms also allow for multiple senders to share the network bandwidth among each other. TCP also has other mechanisms to improve the efficiency of data transmission between the end points. A few prominent ones are introduced below: Maximum Segment Size (MSS): The Internet paths also have an upper limit for the size of IP datagrams/packets that the physical medium can safely transmit. TCP combats this by the use of MSS that is negotiated during the connection establishment phase. MSS is the maximum size of data TCP can encapsulate in a single segment without considering the TCP and IP headers. Selective Acknowledgment (SACK): TCP’s cumulative ACK isn’t efficient in many situations, especially when the packets are lost. Eg. If a packet of a 20 TCP Congestion Control and FLD_TCP cumulative ACK space is lost, then the sender has to retransmit all the packets of the current window as all the ACKs from the receiver refers to the packet’s sequence number before that of any lost packet. To avoid this, Request For Comments (RFC) 2018 [35] proposed a way to selectively acknowledge the received packets to minimize retransmissions. SACK is used via the options field of the TCP header. SACKs specify the range of packets that was correctly received thus the sender can only resend the lost packets. Delayed Acknowledgment (DelAck): To better use the links, an optional mecha- nism of delayed ACK can be used by the receiver so as to avoid sending ACK without the payload/with small payload. The receiver can wait a while as if expecting some more payload from its upper layers to be sent back along with the ACK response. Window Scaling: Because of the 16 bit window size field in the TCP header, the window size is limited to 65, 535(216 − 1) bytes. However, on links with high bandwidth delay products, this slows down the transmission. In such cases, the window scaling option can be negotiated [36] during the initial handshake to allow the window to increase up to a gigabyte. Timestamps: TCP timestamps [36] are used to compute the Round-Trip Time (RTT) of transmission paths. The difference in the 4 byte time-stamp value of the sent packet and its echo reply acknowledgment is used to streamline the protocol’s behavior in many situations and also in developing newer TCP congestion control algorithms. In situations where the TCP sequence number wraps around, timestamps are used to maintain the ordered delivery of packets. Out-of-Band Data: When the URG flag is set, the TCP receiver interrupts the stream buffer to send the current packet towards the application. This functionality is benefited by some interactive applications such as terminal emulation e.g. telnet. After processing the urgent data, the TCP resumes back to serve the stream buffer. Forcing Data: To avoid waiting until the buffer has data greater than the MSS length, as required by certain applications, TCP’s PSH flag can force the data delivery even if the send buffer is not filled beyond the MSS. After completing the data transfer, the connection is terminated by the ex- change of FIN and ACK packets from both parties in a maximum of a 4 way handshake fashion. Based on this framework, tremendous volume of data traffic is transported between numerous endpoints on today’s Internet at any given time. And the network is shared by many TCP flows concurrently. 2.2 Congestion Control Network congestion occurs while sending data between endpoints at a rate which is higher than the available network bandwidth. As the network device queues are of limited size, this leads to packet loss and inefficiency in TCP. TCP avoids overwhelming the network by its congestion control mechanism. Congestion 21 TCP Congestion Control and FLD_TCP control implies controlling the rate at which a host sends data packets into the network by inferring the network’s condition through direct/indirect congestion signals. 2.2.1 Congestion Signals As data traverse through the network to their destinations, they pass through network nodes such as routers and switches where they are buffered in a queue until the node is free to process the packet and forward it. If the buffers are full, the packets have to be discarded and packet loss occurs. There are many mechanisms to discard the packets at the router buffers depending on the queuing policy implemented. A naive queuing mechanism is a Drop tail/First-In, First-Out (FIFO) queue where all incoming packets, without differentiation, get queued until the buffer is full. Thereafter, incoming packets are discarded. There are Active Queue Management (AQM) mechanisms [37] that act on shortening the queue length, based on some probabilistic rules. Random Early Detection (RED) mechanism, for example, penalizes the flows which have more data in the buffer; it isn’t biased towards bursty traffic as much as Drop tail. Buffers are meant to absorb short-term arrival fluctuations and avoid packet losses. When the links are heavily used, the buffers remain persistently full. If there are too many packets in the queue, processing causes additional delay in the packet’s traversal through the network. But in modern networks, as memory became cheaper, the sizes of buffers are getting larger which is causing increased delay overall. This has lead to routers implementing newer AQM methods such as CoDel [38]. Regardless, increasing end-to-end delay can be inferred as signal of network congestion by the end host. Network nodes can also provide congestion markings on packets, conveying congestion signal to the end hosts. Explicit Congestion Notification (ECN) [39] is one such mechanism. When a router perceives a congestion or a near congestion state, it can mark the ECN bit in the IP header [52] of a packet so that the end host can infer congestion and act on it. ECN can reduce packet drops as the sender can react before the congestion occurs. This is possible if both hosts are ECN capable and the protocol is negotiated during the connection establishment. The network also needs to support it. The network can also alter its behavior (depending on the algorithm used) towards packet drops, congestion markings and delays to regulate fairness to the flows. The onus then lies on the end hosts to act on those signals to alleviate congestion and to derive the most utility out of the network. TCP congestion control algorithms enable such functionalities. 22 TCP Congestion Control and FLD_TCP 2.2.2 End-Host Congestion Control The end host must limit the sending rate of packets into the network to avoid overwhelming network resources which will lead to packet losses and eventual congestion collapse as noted by Van Jacobson [40]. A packet conservation principle was devised to avoid such congestion collapse which stated that in a network operating in a equilibrium state, a new packet is to be inserted into the network only after another packet comes out of the network first. Most end hosts implement a congestion window to limit their sending rate of packets into the network. It sets the upper limit of data that can be sent for transmission, regardless of the rate at which the application makes the transmit data available. This results into an effective data rate of: S our ce Rate (bps) = W × MS/RT T (2.1) where, W = Send Window, MS = Message Size, RT T = Round Trip Time The receiver’s advertised window allows TCP to implement flow control and not overwhelm the receiver. The actual window for data transmission (send window) is the minimum of the congestion window and the receiver’s advertised window. Thus, in equation (2.1), W = min(AW N D, CW N D), where AW N D = Advertised Window and CW N D = Congestion Window. There are various algorithms in use at the end host for the sake of congestion control. They optimize for data transport efficiency around the Congestion Window (CWND) parameter. The congestion window varies during the data transmission depending on various factors. At the beginning of a connection, the window is set to some default value. Earlier, this Initial Window (IW) size used to be at most 4K bytes [41]. But with modern hosts these days, the IW size is around 10 segments (∼15KB) [42]. Slow-Start. Once the connection is established, the sender starts sending out the packets allowed by the CWND and upon receiving each acknowledgment it increases the CWND by one. This essentially doubles the CWND at each round trip time. This is called the TCP slow-start phase of the connection, which lasts until the CWND crosses a threshold value (ssthreshold) or a loss occurs. Packet losses during a TCP connection is inferred from the expiration of a timer. If there is no ACK for a sent packet within a timeout, known as Retransmission Timeout (RTO), the sender assumes that the packet is lost and resends the corresponding packet. The connection can again enter this slow-start phase if the retransmission timer expires at any time during the connection. The objective is to reach a higher window as soon as possible to utilize the available bandwidth. 23 TCP Congestion Control and FLD_TCP Congestion Avoidance. After the CWND crosses the slow-start threshold size, the data rate is inferred to be closer to the available bandwidth and the subse- quent increase in congestion window is more conservative. Additive Increase Multiplicative Decrease (AIMD) algorithm is adopted in most cases where: if N o C on gestion then CW N D(i) = CW N D(i − 1) + u else if C on gestion then CW N D(i) = d × CW N D(i − 1); where, d < 1 end if The values of u and d are varied and adapted to different scenario. Their optimization has led to the development of various TCP variants described in Section 2.4. Fast Retransmit and Recovery. To make the connection recover faster from a packet loss, corresponding packet is resent not only upon expiration of RTO, but also upon the receipt of three duplicate ACK packets. This is called the Fast-Retransmit algorithm. While RTO expiration causes TCP to go into slow-start phase and start scaling again from the Initial CWND size, Fast-Recovery algorithm allows for maintain- ing a higher CWND size (thus high link utilization). It does so by only dropping the CWND to the ssthreshold (half of the CWND) upon receipt of three duplicate ACKs. After retransmitting the missing segment, it increases the CWND by additional three segments to accommodate three segments leaving the network into the receiver’s buffer as inferred from the three duplicate ACKs. If more duplicate ACKs arrive, the CWND is increased by one as well as a new packet is sent. When an ACK arrives that acknowledges the lost segment in question, the CWND is deflated back to ssthreshold and the congestion avoidance resumes. RTT Variance Estimation. The Round Trip Time between the end hosts is used by TCP for various purposes, RTO estimation being one of them. RTO packet headers include a timestamp option which is used to calculate the per packet RTT. Over multiple packets, network noise induces variations in the RTT values that need to be filtered out using a low pass filter. The Smoothed Round-Trip Time (SRTT) for use is computed as follows: SRT T = α× SRT T + (1 −α) × M where, M = most recent RTT measurement, and α = 0.8~0.9. General TCP implementations calculate RTO as: RTO = SRT T + 4 × var(RT T). Many other algorithms including Kalman filtering [43] have been developed for better esti- mating the RTT. With these congestion control mechanisms from both network as well as end hosts working in conjunction, flow rates of TCP flows are controlled. Multiple flows sharing the network compete for the access of the same available band- width. Each flow tries to get equal share of network bandwidth at any given moment, irrespective of history, future, or the cost created to other flows. 24 TCP Congestion Control and FLD_TCP In the next section, we describe the design of a new congestion control algo- rithm whose behavior varies according to the number of packets sent in a TCP connection flow. We call this the Flow-length Dependent Congestion Control and the details are published in Publication I. 2.3 FLD_TCP We have discussed that most of the traffic flows in the Internet are short and only a small proportion of the connections are long. We also established how flows infer network conditions and incrementally attempt to gain a larger share of the network bandwidth. In this resource competition scenario, the short flows are disadvantaged as long flows have more time to infer the network conditions and react accordingly. Short flows also cannot possibly utilize large available bandwidth due to congestion window scaling from a smaller initial value. We also argued that prioritizing the completion time of short flows could lead to various benefits to user experience as well as energy savings. With the objective of accelerating the transport of short flows (flows with less bytes/packets to transport), we propose some changes into the TCP sender side algorithm. After a TCP connection is setup, with each RTT the connection optimizes to get larger share of bandwidth from the network. Since short flows have less bytes to transport, they may finish all their data transmission before TCP reaches to an optimal state due to slow-start. To level the playing field, one can boost the sending rate from the very beginning, i.e., have a larger Initial Window. This has been incorporated in modern TCP versions [42]. We alter the congestion control algorithm in such a way that it is very aggres- sive in the initial round trips of a TCP flow, and becomes less aggressive as the flow gets longer. This causes the short flows to achieve more of the network bandwidth, allowing shorter flows to push more data into the network in the same time. We use a threshold flow-length, after which we step down the ag- gressiveness. To make TCP perform a go-fast-finish-early behavior, we propose a new TCP, Flow-Length Dependent TCP (FLD_TCP) by altering two mechanisms of the traditional TCP. The objective of building this TCP variant is to demonstrate how a resource assignment policy can be implemented to realize flow-length varying aggressive- ness for data transport which allows us to segue towards analysis of various resource assignment schemes. Thus, due to the direction, scope and time require- ments of the research work, optimization of FLD_TCP itself has had limited treatment in this research. For example, FLD_TCP developed in this work does not implement safeguards against the overshoot of sending rate during slow-start. However, such algorithms can be added to refine FLD_TCP without affecting the intended primary goal of the protocol which is to favor short flows. We discuss some of these features, which could constitute future work in this area, in the concluding chapter. 25 TCP Congestion Control and FLD_TCP 2.3.1 Slow Start Increment Increase Figure 2.2. Two different Slow-Start Increments In traditional TCP Slow-Start, the congestion window is increased by 1 seg- ment for every ACK received which effectively doubles the CWND per RTT. In FLD_TCP, the slow start increment factor is changed from 2x to 3x as shown in Figure 2.2. Thus, the CWND proceeds towards saturation much quicker and aid the data transfer acceleration. 2.3.2 Congestion Avoidance The congestion avoidance phase of FLD_TCP uses two different algorithms depending on the amount of data that has been transmitted. As long as the flow- length (in bytes) is smaller than a threshold, an aggressive algorithm known as Relentless TCP is used. Relentless TCP [44] does not follow AIMD principle but rather the window decrease is the amount of packets lost only. This makes the relentless TCP more aggressive than the standard TCP. We want to boost up the transfer of flows that are smaller than the threshold flow length but set back the aggressiveness if the transfer size is larger. So post-threshold, we make the algorithm laid-back. To compensate for the aggres- siveness at beginning of the connection, we tested by changing the multiplicative decrease part such that the congestion window reduces to one third rather than halve it. We found no significant benefit towards our objective from it. Thus in our Linux implementation, we implemented the post threshold behavior to be TCP Reno-SACK with the standard rate-halving. Accelerating transport for short flows implies added utility to the web-surfers and the transaction oriented web sessions by shifting the load to the longer flows of background transport and the likes. 26 TCP Congestion Control and FLD_TCP 2.3.3 Threshold Selection The threshold value is set to accommodate what constitutes a short flow in the current web traffic. We identified in the previous chapter that a median size of a web page on desktop is around 1.8 MB, while on mobile it is around 1.6 MB. Median size of images is almost 1 MB and javaScripts have median size of ∼400 KB [21]. We have also seen in Publication III, p. 4 that almost 99% of web connections transport less than 500kB of data. A threshold of 2MB was selected for the purpose of this research. Thus, FLD_TCP is aggressive when the flow length is less than 2MB, and TCP friendly if the flow length is greater than that. 2.4 Related Works A plethora of TCP variants have been developed over the years to cater for different networks and service profiles. TCP Tahoe [45], one of the preliminary implementations of TCP, incorporated the slow-start, fast retransmit and con- gestion avoidance algorithm for congestion control while TCP Reno added the fast recovery part and SACK was added in a later TCP version. TCP Vegas was congestion control mechanism whose congestion engine was triggered more by RTT variations than by packet drops. It was less aggressive to Reno and also network rerouting caused problems to its RTT based operations. To be TCP-friendly as well as scalable in high-bandwidth long distance net- works with long RTT values, TCP BIC [46] incorporated a binary search increase algorithm into its congestion control. When combined with the additive increase algorithm, it allowed for the initial increase of congestion window to be linear and the increase near link saturation to be logarithmic. It also allowed for aggressive bandwidth probing upon no loss conditions thus improving link uti- lization. CUBIC TCP [47] is a more TCP-friendly version of BIC where a cubic function controls the growth rate of the congestion window depending on the time elapsed since the last loss. Similarly, TCP Compound maintains loss triggered conventional congestion window (CWND), and a delay triggered window (DWND) to correspondingly achieve TCP scalability and RTT fairness in the high-bandwidth long distance networks. Also, Bottleneck Bandwidth and RTT (BBR) TCP [48] has been recently developed that uses recent measurements of the network’s delivery rate and round-trip time and builds a model to be used for congestion control. It attempts to operate at the point of onset of queuing at the path bottleneck. In contrast, our proposed TCP variant, FLD_TCP is a set of modifications to the traditional sender side algorithms, with the flow-length based differing algorithm behavior as the distinguishing feature. The goal of the algorithm is to favor short flows, for which we introduced more aggressive behaviors during the initial period of the TCP connection. Bigger initial window size as in newer TCP variants [42] and an increased slow-start increment factor combined with 27 TCP Congestion Control and FLD_TCP relentless congestion avoidance behavior enabled us to create a TCP variant exhibiting such behavior. After a TCP connection is established, it incrementally attempts to gain a larger share of the network bandwidth. During this probing phase the link utilization is not efficient and also is a cause of unfairness between short and long flows. Some approaches attempt on solving the issue by starting the data flow with a data rate that is as close to the available bandwidth as possible. Quick-Start [49] proposes a mechanism where during handshake the receiver can relay a desired sending rate back to the sender. But this method has dependency on the routers along the path and they should either agree or modify the sending rate value as it gets to the sender. The sender then can start data transmission on the agreed sending rate from the very beginning. Jumpstart [50] removes the dependency of Quick-Start on the IP layer by proposing that the sender start sending at an arbitrary rate but pace out the packets allowed by flow control over the RTT inferred from the three-way handshake. Not only does Jumpstart incur higher packet drop rates than slow-start but it also prolongs flow completion times as compared to slow-start when multiple flows are sharing the network. Halfback [51] is another more recent approach which borrows the pacing idea of Jumpstart but also adds upper bound to the data transmitted as minimum of the flow control window size, flow size, and a Pacing Threshold. After the pacing phase, it proactively retransmits the flow’s packets in reverse order at the same rate that it receives ACKs from the previous phase, in addition to the normal packet retransmission. This increases the network utilization by preemptive retransmissions in Reverse-Ordered Proactive Retransmission phase of ∼50% of the packets in pacing phase. Performance wise, Halfback appears to improve flow completion times as compared to Jumpstart. Overshooting of the sending rate during slow-start causes wasteful packet losses in TCP and being more aggressive in the slow-start phase further ex- acerbates it (as shown in our evaluation chapter). Network buffers along the TCP path and their corresponding queuing mechanisms also play a significant role in this 1. Regardless, various TCP methods allow for switching from slow- start to congestion avoidance mode safely without causing heavy packet losses. Limited slow-start [52] mitigates this by capping the exponential growth up to a max_ssthresh parameter value. Beyond that size of the congestion window, the exponential growth is replaced with a less than linear window increase. Cubic Hystart [53] utilizes ACK trains and RTT delay measurements to infer whether the current congestion window size has reached the available capacity of the forward path. This allows the connection to exit slow start earlier, before losses start to occur. Hystart++ [54] utilizes a combination of both Hystart and Limited slow-start to increase congestion window further until the first 1Mechanics of bufferbloat in network nodes have been an actively researched issue. This research attempts to limit itself on the sender side mechanisms for technical implementation and evaluation 28 TCP Congestion Control and FLD_TCP packet loss occurs. TCP Pacing [55, 56] allows for shaping the TCP flow and avoid bursts thus mitigating the overshooting issue. An approach of probing for multiple feasible flow rates is used in TCP RAPID [57] to adapt to available bandwidth faster and avoid packet losses. Paced chirping [58] builds on that method of inferring better estimate of the available bandwidth by using trains of packets called ‘chirps’, thereby allowing connections to avoid overshoot. Various agencies, networks and service providers are also professing/deploying their own flavors of TCP protocols. Some of those are more aggressive than traditional TCP such as Relentless TCP [44] and FastTCP® [59]. While others are less aggressive than traditional TCP such as TCP-Nice [60], TCP-LP [61] and Low Extra Delay Background Transport (LEDBAT) [62]. 2.5 Summary In this chapter, we provided background on the various elements of TCP, the dominant transport protocol in the Internet. We also described various network congestion signals and how end host congestion control operate over them. There exist many flavors of TCP tailored for optimization of various objectives. Also, the TCP-friendliness notion has not been universally implemented in practice. We also described FLD_TCP, which includes changes in the slow-start and congestion avoidance algorithm of TCP. This TCP flavor devised for our research purpose has the aggressiveness as a function of the flow length. In the next chapter, we describe the evaluation of FLD_TCP in different scenarios. 29 3. Evaluation In this chapter, we go through the prominent results obtained during the com- prehensive evaluation of FLD_TCP. The evaluation of FLD_TCP is done in three different scenarios. First we implemented the algorithm in the NS-2 network simulation environment as a proof of concept, the results of which are published in Publication I. We then implemented the algorithm in Linux machines and conducted a controlled performance test against Reno and Cubic flows, in lab conditions. In Publication II, we reported on various metrics (goodput, flow com- pletion time, retransmissions) observed of such flows while they transmit data over Third Generation (3G), WiFi and Local Area Network (LAN) environments. In Publication III, we evaluated the effects of FLD_TCP on real web browsing experience. We tested the performance of the protocol while transporting web pages of the top 100 sites from Alexa top sites list [63]. Below we provide a summary of results. 3.1 Simulation With FLD_TCP implementation in NS-2 [33], we created a simple dumbbell topology (with four hosts labeled A-D and two routers labeled A and B) as shown in Figure 3.1 and set up competing flows across the hosts. Figure 3.1. NS-2 testbed. Figure 3.2 shows the results when we have two TCP Reno flows competing versus when we have a FLD_TCP flow competing against TCP Reno flow. We see that the two competing Reno flows achieve comparable bandwidths. FLD_TCP 31 Evaluation on the other hand, obtains a high bandwidth in the beginning in line with our implementation of higher initial window, higher slow-start increment factor and the one-third multiplicative decrease algorithm. We also see the congestion window of FLD_TCP quickly surpass that of Reno and then ramp down later. In the same figure, at around 18 seconds we also witness the RENO flow suffering from a retransmission timeout causing a period of convergence between the two flows’ congestion windows. 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1 0 5 10 15 20 25 30 A ve ra g e G o o d p u t [M b p s] time RENO1 RENO2 0 5 10 15 20 25 0 5 10 15 20 25 30 C W N D [ p kt s] time RENO1 RENO2 0.2 0.4 0.6 0.8 1 1.2 1.4 0 5 10 15 20 25 30 A ve ra g e G o o d p u t [M b p s] time FLD TCP RENO 0 5 10 15 20 25 30 0 5 10 15 20 25 30 C W N D [ p kt s] time FLD TCP RENO (s) (s) (s) (s) Figure 3.2. Simulation results: Link capacity: 2 Mbps, Link Delay: 50 ms In another test, we set 3 background flows each of 15 MB of file transfers starting at 0, 2 and 4 s and introduced 4 bursts of 512 KB, 1 MB, 1.5 MB and 2 MB traffic at 10, 15, 20 and 25 s respectively. Figure 3.3 shows the observations for Reno and 3.4 for FLD_TCP. The transfer times of each of the flows are also seen in Table 3.1 and 3.2. The short flows of FLD_TCP have roughly half the transfer time than that of the corresponding Reno bursts. Also the effect on the completion time of background flows are minimal. Also from the chart of the congestion window and losses, we see that loss rate is more for FLD_TCP leading to more instantaneous delay as well. Controlling the overshooting of the congestion window should be be able to minimize the loss rate. Thus, the simulation experiment showed promising results for FLD_TCP. Publication I contains more details on the evaluation. 32 Evaluation 0 2 4 6 8 10 12 14 16 0 5 10 15 20 25 30 35 40 45 50 T o ta l G o o d p u t [M B ] time Background Flow 1 Background Flow 2 Background Flow 3 Burst1 Burst2 Burst3 Burst4 0 5 10 15 20 25 30 35 40 45 0 5 10 15 20 25 30 35 40 45 50 C W N D [ p kt s] time Background Flow 1 Background Flow 2 Background Flow 3 Burst1 Burst2 Burst3 Burst4 0 20 40 60 80 100 120 0 5 10 15 20 25 30 35 40 45 50 L o ss R a te [p kt s/ s] time Burst1 Burst2 Burst3 Burst4 Background Flow 1 Background Flow 2 Background Flow 3 0.014 0.016 0.018 0.02 0.022 0.024 0.026 0.028 0.03 0 5 10 15 20 25 30 35 40 45 50 D e la y [s ] time Background Flow 1 Background Flow 2 Background Flow 3 Burst1 Burst2 Burst3 Burst4 (s) (s) (s) (s) Figure 3.3. 4 Reno Short Bursts in 3 background flows Table 3.1. Bursts Transfer Times FLD_TCP Transfer Time Reno Transfer Time Ratio (Reno/FLD_TCP) Burst (512KB) 0.6 s 1.7 s 2.833 Burst (1MB) 1.5 s 2.4 s 1.6 Burst (1.5MB) 2 s 4.6 s 2.3 Burst (2MB) 2.8 s 6.2 s 2.2 3.2 Controlled File Transfers After the simulation evaluation of the concept, the protocol was implemented in Linux kernel. Its evaluation was then done with controlled file transfers on real network settings. Linux Implementation The FLD_TCP implementation was done in Linux-2.0.78 kernel. The patch and fld_tcp.c module is available at [64]. In this Linux version the Initial window is 2 but FLD_TCP overrides it to 10 when initialized. The turbo and agr flags indicate if the flow length is less than 2MB. s t a t i c void t c p _ f l d _ i n i t ( . . . ) { 33 Evaluation 0 2 4 6 8 10 12 14 16 0 5 10 15 20 25 30 35 40 45 50 T o ta l G o o d p u t [M B ] time Background Flow 1 Background Flow 2 Background Flow 3 Burst1 Burst2 Burst3 Burst4 0 5 10 15 20 25 30 35 40 45 50 0 5 10 15 20 25 30 35 40 45 50 C W N D [ p kt s] time Background Flow 1 Background Flow 2 Background Flow 3 Burst1 Burst2 Burst3 Burst4 0 20 40 60 80 100 120 0 5 10 15 20 25 30 35 40 45 50 L o ss R a te [p kt s/ s] time Burst1 Burst2 Burst3 Burst4 Background Flow 1 Background Flow 2 Background Flow 3 0.014 0.016 0.018 0.02 0.022 0.024 0.026 0.028 0.03 0.032 0.034 0.036 0 5 10 15 20 25 30 35 40 45 50 D e la y [s ] time Background Flow 1 Background Flow 2 Background Flow 3 Burst1 Burst2 Burst3 Burst4 (s) (s) (s) (s) Figure 3.4. 4 FLD_TCP Short Bursts in 3 background flows Table 3.2. Background Flows Transfer Times With FLD_TCP bursts With Reno bursts Ratio (FLD_TCP/Reno) Background Flow 1 39.3 s 39.3 s 1.0155 Background Flow 2 43.9 s 41.6 s 1.0555 Background Flow 3 43.7 s 42 s 1.0405 . . . tp−>turbo = 1 ; tp−>snd_cwnd = 10 ; f l d −>agr = 1 ; . . . } When the flow length of the connection crosses 2MB, the algorithm is same as traditional TCP. There are few differences when the flow length is within 2MB. During slow start (i.e. CWND is less than the slow start threshold), if the flow length is less than 2MB, then the CWND is increased by 2 segments for each ACK received. On the other hand, if it is above 2MB then it is increased by 1 segment per ACK. s t a t i c void t c p _ f l d _ c o n g _ a v o i d ( . . . ) { . . . 34 Evaluation i f ( tp−>snd_cwnd <= tp−>s n d _ s s t h r e s h && f l d −>agr && tp−>s n d _ s s t h r e s h ! = 0 ) { tp−>snd_cwnd += 2 ; } else i f ( tp−>snd_cwnd <= tp−>s n d _ s s t h r e s h ) { tp−>snd_cwnd += 1 ; } else . . . } Similarly, during the fast recovery phases, if the total bytes sent is less than 2MB, the CWND is set to be minimum of the CWND and packets in flight plus one instead of halving the rate. This is still in accordance with the packet conservation principle. Within the 2MB flow length, the slow-start threshold is set as CWND minus lost packets unlike CWND/2 after crossing 2MB. Figure 3.5. File transfer test setup. Testbed and Results With these modifications, the new TCP flavor is evaluated with a setup shown in Figure 3.5. The modified kernel was compiled in the host machines including a Nokia N900 mobile phone for 3G test. In 3G, the network itself has natural characteristics of background traffic, delay and bandwidth bottlenecks. For WiFi and LAN tests, a middle-box was used to introduce those characteristics using netem [65] and background traffic was created when needed. Comparative performance tests of FLD_TCP, Reno and Cubic flows were done in 3G, LAN and Wifi environments and various metrics were observed. Comprehensive results are in Publication II. We highlight the Wifi case below: Figure 3.6 shows the results when 100 short flows (2MB) and 50 long flows (15MB) are uploaded and downloaded sequentially between server and clients. Ten continuous Reno SACK flows share the same bottleneck (100 Mbps) creating background traffic and end-to-end delay of 50 ms was created using netem in the bottleneck router. The cumulative flow completion times (fct) shown in Figure 3.6a, demonstrate 35 Evaluation 0 20 40 60 80 100 0 2 0 0 4 0 0 6 0 0 Upload (2MB) Flow Index cu m u la tiv e f ct s e c reno cubic fld 0 20 40 60 80 100 0 1 0 0 2 0 0 3 0 0 4 0 0 Download (2MB) Flow Index cu m u la tiv e f ct s e c reno cubic fld 0 10 20 30 40 50 0 4 0 0 8 0 0 1 2 0 0 Upload (15MB) Flow Index cu m u la tiv e f ct s e c reno cubic fld 0 10 20 30 40 50 0 2 0 0 4 0 0 6 0 0 Download (15MB) Flow Index cu m u la tiv e f ct s e c reno cubic fld (a) Cumulative flow completion times RU RD CU CD FU FD 5 1 0 1 5 2 0 2 5 2MB Cases G o o d p u t M b p s RU RD CU CD FU FD 4 6 8 1 0 1 2 1 4 1 6 15MB Cases G o o d p u t M b p s (b) Connection goodput Figure 3.6. Wifi Upload and Downloads the gain obtained from using FLD_TCP. In WiFi upload and download cases, cumulative fct of 100 short flows of 2MB size show that flows on FLD TCP is 63% faster than Reno flows and 30% faster than Cubic short flows. For the 15MB upload, FLD_TCP and Cubic finished flows at similar time while Reno had quite high cumulative f.c.t. Similarly the goodput charts in 3.6b show that FLD_TCP upload (FU) and FLD_TCP download (FD) achieve higher goodput than corresponding Reno (RU, RD) and Cubic (CU, CD) flows, especially in the 2MB case. In order to see how the bandwidth is shared by different TCP variants, all four hosts make 25 connections each with the server simultaneously. After every run of the flows, the TCP variant is changed for one client-server pair (i.e. at first all clients (A -> D) have Reno enabled. For second run, client A has FLD_TCP and (B -> D) have Reno, and so on). To enable the same in download case, two servers have two different TCP variants enabled at a time. This allows us to observe the change in average bandwidth share of flows at the bottleneck when 25% flows change their TCP algorithm in every step. The averages are made between flows of the same 36 Evaluation client-server pair since they use the same TCP variant at any given step of the experiment. Figure 3.7 shows the bandwidth attained by each variant in each run of the experiment. For example, in the "Upload 2MB" case, when all the flows are Reno (“RRRR”), average goodput of each flow is around 1 Mbps. When one client has FLD_TCP enabled (“FRRR”), the average goodput of the FLD_TCP flow is quite high in this case. In “FFRR” and “FFFR” cases also, FLD_TCP flows get higher goodput than the Reno flows. Contention of FLD TCP with Cubic flows is similar but the bandwidth share increase is lesser. FLD_TCP also achieves higher goodput for short flows in download case. For long flows, FLD_TCP does not attain more goodput than others as intended by design. However, we also see that in the 2MB cases, Reno and Cubic flows achieve lesser and lesser bandwidths as the proportion of FLD_TCP flows increases. Actually, the achieved goodput in 2MB ’FFFF’ cases appear slightly worse than ’RRRR’ and ’CCCC’ cases. This limitation of FLD_TCP is unlikely to manifest in the real networks where ’FFFF’ situation would be a mix of short and long flows whereby short flow would benefit. RRRR FRRR FFRR FFFR FFFF FFFC FFCC FCCC CCCC CCCR CCRR CRRR Upload 2MB Cases G o o d p u t M b p s 0 .0 1 .0 2 .0 3 .0 RRRR FRRR FFRR FFFR FFFF FFFC FFCC FCCC CCCC CCCR CCRR CRRR Download 2MB Cases G o o d p u t M b p s 0 .0 0 .5 1 .0 1 .5 2 .0 RRRR FRRR FFRR FFFR FFFF FFFC FFCC FCCC CCCC CCCR CCRR CRRR Upload 15MB Cases G o o d p u t M b p s 0 .0 0 .4 0 .8 1 .2 RRRR FRRR FFRR FFFR FFFF FFFC FFCC FCCC CCCC CCCR CCRR CRRR Download 15MB Cases G o o d p u t M b p s 0 .0 0 .4 0 .8 1 .2 Figure 3.7. Bandwidth sharing in Wifi 37 Evaluation After the simulation and static files evaluations, the protocol is next tested with real web pages to see the impact it has on modern web page loading on modern browsers. 3.3 Web Page Loads Figure 3.8. Evaluation Setup In order to measure the benefits of FLD_TCP on the downloads of real web pages into a user’s browser, we implemented the transport protocol in a Squid proxy server (to emulate the content servers) and measured the performance while accessing the Alexa top 100 sites via different network scenarios (using a WAN emulator and iPerf [66] background traffic) on a Chrome browser. Page load times were obtained from the Chrome browser’s loadEventFired event. The comparison is done against Cubic as it is the dominant TCP on most web servers. The evaluation setup is presented in Figure 3.8. We also analyzed the connection-level patterns of modern day websites. There are idle times during the page load, during which there is no ongoing data transfer from the network to the browser. Thus, we calculate the page net transfer time as the difference between the page load duration and the idle duration during the page load. The results below show significant improvement of page net transfer times through the use of FLD_TCP in both HTTP/1.x and HTTP/2.0 cases. We analyzed the connection sizes distribution of the home pages of those Alexa top 100 websites. The distribution was found to be similar to the connec- tion distribution of webpages of more than a million web pages maintained by httparchive (https://httparchive.org/) as shown in Figure 3.9. Almost 85% of connections transport less than 50 kB of data and 99% of connections transport less than 500 kB of data. 38 Evaluation Figure 3.9. Comparison of connection sizes distributions in homepages of Alexa 100 sites with the larger dataset of http://httparchive.org. Modern day TCP connections are increasingly getting encrypted. It was observed that 37.6% of web pages have more than 90% of the TCP connections encrypted while 33.4% of web pages had more than 90% unencrypted connections (a) Long Term Evolution (LTE) (b) LTE (c) LTE (d) 3G (e) 3G (f) 3G Figure 3.10. Page Net Transfer Time obtained for different page types for Cubic and FLD_TCP 39 Evaluation serving the pages. However, 29.1% pages were served by both encrypted and unencrypted TCP connections. The analysis is later segmented into these different page types. Also analysis is done for effect on HTTP/2 connections which allows for multiplexing. Figure 3.10 shows the effect on page net transfer times of the three different page types on different network characteristics upon using the two different transport protocols, Cubic and FLD_TCP. Each point represents an individual run of fetching one of the 100 web pages and each page is fetched 11 times. We see that FLD_TCP reduces the net page transfer time for all page types (encrypted, unencrypted, and mixed, where we define an encrypted page as one where more than 90% of the connections of the page are encrypted and so on). The reduction in page net transfer time is more in 3G network setup than LTE, meaning that FLD_TCP provides more benefit in low bandwidth situations. (a) Distribution of idle time inside pages for differ- ent page types. (b) Effective connection concurrency across pages for different page types. Figure 3.11. Distribution of idle time and connection concurrency There is a lot of idle period during a page load when there is no active fetching of web objects from the server. The median number of pages have around 50% of page load time as idle from network data reception perspective. Figure 3.11(a) shows the Cumulative Distribution Function (CDF) of such idle time durations during the page load on LTE indexed against the total page load duration. We observed that FLD_TCP increases the idle time proportion in receiving objects for the page as FLD_TCP finishes object transfers faster than Cubic. We also analyzed a page level effective concurrency metric for each page load 40 Evaluation that denotes the effective number of connections seen throughout the page load duration. This was done by tracking the number of active connections (objects being received through them) and their cumulative duration. A concurrency level of 1.5 would imply that without any idle time, the page could be served the same amount of data through 1.5 connections. Figure 3.11(b) shows that FLD_TCP decreases the effective concurrency of the page compared to Cubic, implying that it would require fewer TCP connections to serve a page, leading to an improved connection efficiency. While this metric serves to amplify the gains of FLD_TCP by removing the idle time from the analysis, it also shows the potential benefits in a situations with multiplexed data transfers. We also analyzed the measurements of three different connection types. Figure 3.12 suggests that FLD_TCP slightly decreases the connection durations of encrypted, unencrypted as well as HTTP/2 connections. (a) Across encrypted connections. (b) Across unencrypted connections. (c) Across HTTP/2 connections. Figure 3.12. Distribution of connection durations To see the window increase function of TCP in action, we analyzed the maxi- mum size of web objects transferred in each round trip time of the connection considering only the first object of the connection. The LTE setup used for this purpose had link delay of 13 ms leading to an RTT of at least 26 ms. Figure 3.13 shows the bins and corresponding maximum data received with Cubic and FLD_TCP. We see that in the first RTT of the connection, both FLD_TCP 41 Evaluation and Cubic receive data of a maximum 14 KB size in accordance with the 10 segments initial window size. In the second RTT, Cubic’s window size doubles while FLD_TCP’s window size triples, which allows larger web objects transfer to also finish within the second RTT. Similarly, in each of the succeeding RTTs, FLD_TCP is able to finish the transfer of larger web objects than Cubic. Figure 3.13. Maximum size of web objects transferred in each RTT bin From this real world evaluation of FLD_TCP, the benefits of using FLD_TCP at the sender side of TCP connections are clear. On the objects level, RTTs are saved, hence web objects are fetched faster. On connection level, the connection durations of the TCP connections become shorter for both encrypted (including HTTP/2) and unencrypted connections. These accumulate at the page level, making the web pages load faster thus improving user experience on the web. Further results of these evaluation experiments can be found in Publication I, Publication II and Publication III. 3.4 Conclusion We took the idea of changing the TCP sender side behavior to favor short flows and implemented as well as evaluated the new algorithm via simulations, laboratory setups as well as with public websites. We found FLD_TCP to work well and provide intended benefits to short flows in comparison to the traditional Reno TCP as well as the dominant Cubic TCP. Even a marginal improvement of web latency significantly affects revenue for service providers. This is primarily from user experience improvement per- spective that is geared towards user retention to those Internet services. From energy saving perspective as well faster transmissions and completions of web connections make sense since the energy cost per bit for wireless transmission is 1000 times more than the energy cost for single computation of that bit in modern wireless devices [25]. Thus, the idea of using a go-fast-finish-early transport mechanism such as 42 Evaluation FLD_TCP certainly has its merits. However, the question of fairness is also brought forward by such idea of prioritizing short flows. The next chapter delves into the application of fairness aspects of network data transport derived from the real world notions. 43 4. Distributive Justice In this chapter, we look into the origins and development of fairness notions and how they translate into network operation. We then analyze how differing notions applied in cascade can result into totally different outcomes. This is followed by a discussion into the basic guidelines for implementing distributive justice in network communications. 4.1 Introduction Fairness of resource assignment is often questioned, analyzed and justified in areas where the distributed resource is of economic value and in limited supply. There is a constant struggle between personal gain and social welfare resulting from different kinds of resource distribution policies. Optimization of these competing aspects and finding a stable equilibrium is a non-trivial problem. In communication systems there are many commodities, such as bandwidth, delay, and other performance measures, which are of economic value that re- quire resource assignment policies. The outcome is an interplay between users, applications, network, network operators and the society through regulators. The questions of net-neutrality, network utility maximization, quality of service, quality of experience are examples of the competing objectives desired by these stakeholders of communication networks. Considering the hierarchy of networking needs as shown in Figure 4.1, as proposed by Alvaro Retana [67], one can see that the network resources are spread across all of the layers. After providing connectivity with acceptable level of performance and some usable functionality, concerns on the justice in allocation of network resources shall arise in the priority layer which stems from the basic resources distribution. This layer is analogous to the esteem layer of Maslow’s hierarchy of needs [68] where one seeks respect and individual recognition. Justice is sought and questions of fairness are put forth at the priority layer. Thus, during the network evolution, such needs may need to be addressed duly. Considerations of such desires should be included in the design process of the resource assignment policies themselves. 45 Distributive Justice Figure 4.1. Retana’s Hierarchy of Networking Needs Some services value delay more than bandwidth, some value in-sequence deliv- ery, some value accuracy while others value something else. It is a challenge for the network architects, designers and operators to identify and provide network performance to satisfy all those needs. Due to the modular characteristic of the communication network’s stack, its different layers have their own design considerations. Also due to differences in the administrative realms of the net- works themselves, policies that guide the assignment of network resource usage vary. Thus this diversity of service, stakeholders, administrative realms and constantly changing market forces makes it a complex and yet very crucial to carefully design the principles of assigning resources in network communica- tions. Tussles in cyberspace [69] result from inadequate design and self-interests of the users. 4.2 Origin and Development It has been demonstrated that even capuchin monkeys reject unequal pay [70]. Also as societies are exposed to more market integrations they are more prone to seek fairness in transactions [71]. Thus, fairness appears to have evolutionary roots and is further engrained in humans by the social construct as the perception of distribution is established. Along the modern society’s formation, philosophers have taken a keen interest in understanding the human need for fairness in the distribution of goods. The principles of distributive justice are normative principles designed to guide the assignment of the benefits and burdens of economic activity. Its scope varies on what is subject to distribution, the basis of the distribution and the nature of the subjects of the distribution [72]. Various distribution policies are regarded as just by different schools of thought. For strict egalitarianism, every person should 46 Distributive Justice have the same level of material goods and services no matter what. For the difference principle [73], inequalities in distribution are allowed only when they are open to all, under conditions of fair equality of opportunity and distributions should prioritize greatest benefit of the least advantaged members of society. This led to Rawls’ MAXI-MIN approach, i.e. maximize the opportunities and minimize the inequalities among all. Welfare-based principles prefer maximizing the overall level of wellbeing, which results in policies favoring the majority. Desert-based principles focus on the entitlement to resource-share based on individual’s toil. And libertarian principles do not require any distributive pattern to be termed just. Real world policies are derived from these principles according to the justification of the people and the law of the land. Different instruments have been developed to implement the fairness notions in the economic markets. Market price, command, majority rule, contest, first- come-first-served, lottery, personal characteristics and even force [74] have been used to decide the entitlement and priority order for resource distribution. In cases where the individuals have an awry sense of entitlement, the distribution mechanism (which is intended for maximizing the collective welfare) can result into negative situations (Tragedy of the commons) [75]. Optimality of distribution is also used to compare different schemes. For example, while Pareto optimality implies that one participant cannot benefit without causing loss to the other, Kaldor-Hicks allows for optimality in cases where the loser of a contention can be compensated in some manner so that no one is worse off [76]. Figure 4.2. Different Social Indifference Curves Another way to compare the different schemes is through translation of the social welfare functions into social indifference curves as shown in Figure 4.2 where the two curves in each sub figure denote different total capacity. Different schemes accept allocations according to the resulting utilities on the correspond- ing participants. For the pure utilitarian, the sum of utilities needs to be the same (maximum possible in the system) while for the Maxi-Min approach the utility for one user can only be increased without decreasing the utility for the user, which has less utility. The intermediate indifference curves (in the middle) justify the increase in inequality by making increase in utility for the 47 Distributive Justice one gaining much greater than the utility decrease for the other. 4.3 Network Communications Communication networks have various resources that are limited and shared among the communicating entities. Thus, as other economic goods, their distribu- tion is guided by various schemes either by design or by providence. Bandwidth, buffer space, processor cycles, battery life, frequency spectrum are some ex- amples of such resources. We find different assignment instruments described earlier to be used in different aspects of network communications as well. Market price differentiate different data packages to the users. Network administrators use command mechanism to delegate the resources. Majority rule is used to select cluster head in wireless sensor networks. FIFO queues of router showcase the first-come-first-served mechanism while random access in Medium Access Control (MAC) protocols are using the lottery method in a sense. Similarly, QoS provisioning utilize the personal characteristics based assignment instrument. At each layer of the communication stack, we find various resources that are distributed to participating entities. At the processor level, time scheduling is done to allow multiple individuals and programs to share a common computing system. At the link layer, different access methods control how a host can gain medium access without colliding with another host’s transmission. At the IP layer, assigning different paths to different connections allow for load balancing and other objectives. At the transport layer, flow control, congestion control and multiplexing create controls for resource sharing. Consequently, services at the application layer set their entitlements and specific requirements for justifying different forms of resource assignments. Communication networks span across heterogeneous administrative bound- aries. Thus resource assignment policies are affected by other factors such as institutional and national policies, service level agreements, financial and security considerations, etc. These can often give different result than intended to the passing traffic because of the cascaded policies. 4.3.1 Fairness notions and measures Along with the development of resource assignment policies in communication networks, various works on their implication on fairness have been done [77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87]. They range from identifying the different realms of resource assignment to network utility maximization. Some attempt to identify fairness as a quality attribute of the network while others segment fairness into specific metrics of performance, interference, allocation. These have led to quantifying fairness with the aid of various statistical measures [88, 89, 90, 91, 92] which can then be used to contrast different policies. Jain’s fairness index [88] has been used most often to measure and compare the fairness of resource 48 Distributive Justice assignments. For n users and X i resource assigned to each, it is calculated as: F(x) = ( ∑n i=1 X i ) 2 n. ∑n i=1 X 2 i In the case of communications networking environment, there are a few promi- nent notions of fairness upon which resource assignment policies are based. Max-Min fairness [93] maximizes the minimum data rate any flow achieves and then to maximize the second lowest data rate a flow achieves and so on. The fair queuing algorithm and the round robin (for equally sized packets under equal channel conditions) achieve max-min fairness. Maximum Throughput Resource Management prioritizes capacity allocation to the least expensive (e.g. best signal to noise ratio) flows. While this can starve the expensive flows, it makes sense in wireless scenarios where the difference in cost of flows are significant. Proportional Fairness [94] avoids the starvation of expensive flows while trying to maximize the network throughput. It provides a minimum service to all flows and after a minimum service level, the expensive flows obtain a lower service quality. Mathematically, if C is the capacity to be distributed among n participants with xi share assigned to user i, then proportional fairness ensures: xi ≥ 0, n∑ i=1 xi ≤ C, And for any other allocation with x∗i share assigned to each user, n∑ i=1 x∗i − xi xi ≤ 0. The α - fairness scheme is a generalization off the proportional fairness notion and can provide different notions based of different values of α. It also approx- imates the max-min fairness for α → ∞. There is also an utility function that satisfies α - fairness as: Ui (xi ) = pi x1−αi 1 −α (4.1) where, xi = share assigned to user i. Weighting ( pi in equation 4.1) of assignment allow control mechanisms to prioritize the resource assignments in these fairness notions. Also the utility is subjective and varying values of α allows for testing various fairness notions with corresponding utility functions. We analyzed multiple notions of the α - fairness with differing weights and compare the resulting outcome using Jain’s Index, the results of which are summarized in the next section. Also an analysis is done in Publication IV when differing notions are applied in a cascaded fashion. 49 Distributive Justice 4.3.2 Prioritization under various fairness notions In order to analyze the effect of different weights, two users were distributed 100 units of resources. While keeping weights( pi ) for User1 constant at 1 ( p1=1), weight for User2 was varied from 1 to 20, ( p2=[1,...,20]). Using CVXPY solver [95], the resulting resource assignments xi of the two users (specifically x1 and x2) under different α-fairness notions (0.1,) was optimized with the objective of maximizing the sum of the utilities. The resulting distribution was obtained as in Figure 4.3. Figure 4.3. Different α-values react differently to weights variation Under the same weights i.e. 1, all values of α assign equal resource (50 units) to each user. As the ratio of weight to User 2 increases, more resources get assigned User 2. For smaller values of α, the weights control the resource assignment very strongly, while for bigger values of α the weights have less impact. This shows that prioritization can perform differently under various fairness notions. 4.3.3 Fairness and prioritization under different utility functions An analysis follows where we look into two different fairness notions scenarios with varying weights. In many cases different utilities are derived from different flows that exist in varying proportions in the network. In order to assess the impact of applying weights or prioritizing some flows, analysis was done with a scenario where 2000 units of resource are to be assigned among 20 users/flows which are of two distinct types (for example short vs long flows). Two fairness notions were chosen. α=1, following the proportional fairness notion with the corresponding log utility function and α=2, a minimum potential delay fairness scheme which turns the weighted α-fairness utility function into: Ui(xi) = −pi 1xi . If the flow utility is related to the delay of the flow (which is 50 Distributive Justice proportional to the flow completion time) and the resource assignment problem is to minimize the delay for those flows, prioritizing such flows implies that they are assigned higher weights hence get more resources leading to lesser delay than other flows. We ran the optimization with different weights applied to different proportions of each flow type under the two different utility functions. We calculated the Jain’s index of the resulting assignment as shown in Figure 4.4. (a) Under α = 1 (b) Under α = 2 Figure 4.4. Jain’s index for different proportions of weighted flow types under different fairness notions We observe that for the same weight (i.e. no discrimination), the resulting assignment has obvious Jain’s index of 1 for all proportions in the mix. As the weights to prioritized flows increases, the position of least value of Jain’s index begins to skew towards the right as we increase the proportions of weighted flow type. i.e. worst inequality case is dependent in the weight factor as well. On top of that, observing the difference between Figure 4.4 (a) and (b), the severity of inequality under α=1 is seen to be more prominent (extreme being 0.55 for weight = 5) than under α=2 (extreme being 0.85 for weight = 5). These dependence of fairness on prioritization intensity and chosen utility function make the resource assignment problem more challenging. Considering the prioritization of short flows using the case α=2, Figure 4.4 (b) shows possibility for one to assign appropriate weights to implement such short flows favoring policies with the knowledge of proportions of user types and 51 Distributive Justice tolerable levels of Jain’s index values. 4.3.4 Cascading of fairness notions Along the communication path and network stack, resource assignment policies are applied which can stem from different fairness notions. For example two nodes (X and Y) can have two different policies (α1 and α2 ) as in Figure 4.5. This cascading effect can end up with a different resulting allocation than originally envisioned. We analyze such a scenario with node X implementing α1 =1 and node Y implementing α2 = 2, that respectively translate to corresponding utility functions as Ui = pi log(xi ) and Ui = −pi 1xi . Figure 4.5. Cascade of fairness policies 20 participants, 10 of each type (A1,..., A10, B1,..., B10) are to be assigned maximum of C1=200 and C2=100 resource units at node X and Y respectively. Also type B is given double the weights than type A participant. Assignment vectors are calculated using the CVXPY solver and corresponding Jain’s indices are also calculated and presented in Table 4.1. For example, let us take the case shown in the first cell; the case of α1=0.2 and α2=0.2. The 200 resources are assigned among the 20 users (10 of each weight type) at node X according to α1=0.2, and at node Y according to α2=0.2. Each node optimizes its alloca- tion. The difference at node Y is that there is an additional constraint i.e. the maximum resource assigned is capped to the assignment resulting from node X for each participant. Thus as a result, each user of type A gets 0.307 and each user of type B gets 9.692 units of resource and the resulting Jain’s index of this assignment is 0.532. Table 4.1 (highlighted cells) show that for α1=2 and α2=1, the Jain’s index is 0.9 and when the alpha values (fairness notion) in the nodes are switched (i.e. α1=1 and α2=2), we get the Jain’s index as 0.971. In general we see that Ji j �= J j i . The inequality of final assignment when we switch the placement of the policies only reveals that distributive policies (i.e. fairness notions) do not hold commutative property. Additionally, we see that α2 is mostly dominant in determining the resulting assignment. In particular, for all values of α1 > 1, the resulting assignment depends only on the value of α2. Since node Y has less capacity, it becomes the bottleneck and the policy applied there i.e. α2 is dominant in determining how much resource is assigned to each traffic flow. But for values of α1 < 1, 52 Distributive Justice α 1 0. 2 0. 5 1 1. 5 2 5 10 α 2 0. 2 (0 .3 07 ,9 .6 92 ) (0 .6 15 ,9 .3 85 ) (0 .6 15 ,9 .3 85 ) (0 .6 15 ,9 .3 85 ) (0 .6 15 ,9 .3 85 ) (0 .6 15 ,9 .3 85 ) (0 .6 15 ,9 .3 85 ) 0. 53 2 0. 56 5 0. 56 5 0. 56 5 0. 56 5 0. 56 5 0. 56 5 0. 5 (0 .3 07 ,9 .6 92 ) (2 .0 09 ,7 .9 9) (3 .3 4, 6. 66 ) (3 .8 69 ,6 .1 3) (4 .0 19 ,5 .9 81 ) (4 .0 19 ,5 .9 81 ) (4 .0 19 ,5 .9 81 ) 0. 53 2 0. 73 7 0. 90 1 0. 95 1 0. 96 3 0. 96 3 0. 96 3 1 (0 .3 07 ,9 .6 92 ) (2 .0 09 ,7 .9 9) (3 .3 4, 6. 66 ) (3 .8 69 ,6 .1 3) (4 .1 46 ,5 .8 54 ) (4 .6 55 ,5 .3 44 ) (4 .8 27 ,5 .1 72 ) 0. 53 2 0. 73 7 0. 90 1 0. 95 1 0. 97 2 0. 99 5 0. 99 9 1. 5 (0 .3 07 ,9 .6 92 ) (2 .0 09 ,7 .9 9) (3 .3 4, 6. 66 ) (3 .8 69 ,6 .1 3) (4 .1 46 ,5 .8 54 ) (4 .6 55 ,5 .3 44 ) (4 .8 27 ,5 .1 72 ) 0. 53 2 0. 73 7 0. 90 1 0. 95 1 0. 97 2 0. 99 5 0. 99 9 2 (0 .3 07 ,9 .6 92 ) (2 .0 09 ,7 .9 9) (3 .3 4, 6. 66 ) (3 .8 69 ,6 .1 3) (4 .1 46 ,5 .8 54 ) (4 .6 55 ,5 .3 44 ) (4 .8 27 ,5 .1 72 ) 0. 53 2 0. 73 7 0. 90 1 0. 95 1 0. 97 2 0. 99 5 0. 99 9 5 (0 .3 07 ,9 .6 92 ) (2 .0 09 ,7 .9 9) (3 .3 4, 6. 66 ) (3 .8 69 ,6 .1 3) (4 .1 46 ,5 .8 54 ) (4 .6 55 ,5 .3 44 ) (4 .8 27 ,5 .1 72 ) 0. 53 2 0. 73 7 0. 90 1 0. 95 1 0. 97 2 0. 99 5 0. 99 9 10 (0 .3 07 ,9 .6 92 ) (2 .0 09 ,7 .9 9) (3 .3 4, 6. 66 ) (3 .8 69 ,6 .1 3) (4 .1 46 ,5 .8 54 ) (4 .6 55 ,5 .3 44 ) (4 .8 27 ,5 .1 72 ) 0. 53 2 0. 73 7 0. 90 1 0. 95 1 0. 97 2 0. 99 5 0. 99 9 T ab le 4. 1. C as ca de m at ri x of di ff er en t α va lu es an d co rr es po n di n g as si gn m en ts an d Ja in ’s in di ce s 53 Distributive Justice this is not true. For α1 =0.2, the inequality persists even for higher values of α2. This is due to the fact that node X’s policy has heavily biased towards weighted flows already. Thus, how much each node’s policy determines the net resulting assignment is an interplay between the different values of α1 and α2, the prioritization intensity and, of course, the maximum available resources at each node. This has significant impact and adds further complexities in creating network policies. Due to the cascading effect, the fairness notions upon which different resource assignment policies are built at different network nodes as well as different layers of the networking stack can result into a composite notion. Such composite notions need not be the desired notion for a given application or service. Furthermore, such resulting composite notion might not be the desired notion from socio-economic or socio-political perspective on that administrative realm. The fact that these notions are non-commutative adds another angle while addressing this issue of the end-to-end bidirectional network traffic. Cascading manifests in communication networks in several places. Traffic flows through various shared links and administrative boundaries which im- plement different notions. Wireless links on first/last hop of the network path can have proportional fairness while backbone router queues can have max-min fairness notions. A flow passing through such an end-to end path can then be subjected to a composite notion which is not clearly one or the other. Uplink and downlink traffic are prioritized differently by ISPs which can further affect the resulting assignment. To ensure that the intended results are obtained in resource assignment processes, it is important to be aware of the cascading effects. 4.4 Summary and Design Guidelines One can easily observe that given the numerous methods of assignment, notions of fairness, measures of evaluating such assignment, realms of implementation, multi-party involvement and the subjective nature of utility of resources to a user, it is a complex task to design policies of assigning resources. Many factors need to be considered to provide a satisfactory level of service, without incurring envy among the participants. Nevertheless, just distribution is required and fairness is called upon often to scrutinize the resource assignment policies embodied by the prioritization and distribution mechanisms/ instruments. While satisfying user needs lie on one side, efficiency is sought by the network operators for full utilization of their infrastructures. A suitable trade-off of these two is sought to maximize overall social welfare usually by authority bodies. Decoupling the preferences of these three parties help in getting a clearer picture of their actions, while a holistic view has to be kept simultaneously to monitor the stability and equilibrium when these forces interact. We attempt to provide pointers for network architects, designers and admin- 54 Distributive Justice istrators while considering the distributive justice provided by communication infrastructures. These are the considerations for design of resource allocation schemes as is prescribed in Publication IV. Primary needs first: Basic connectivity, security, robustness, etc. are most crucial aspects for the network. For ordinary users, it is difficult to perceive the assignment policy without specific evaluation tools. But distributive justice will eventually be called upon after those needs are met, thus considering resource allocation policies and the fairness measures alongside will help build foresight. Entities and utility: Participants of the assignment procedure do matter. Ap- plications have varying needs and network regimes have varying constraints. Private and public networks operate with their own agreed values that guide the assignment policy while they cumulatively affect the end-to-end service out- come. Peering relationships between networks affect the allocation framework significantly. Equal is not always fair. Different entities have different resource requirements and the derived utilities differ depending on many factors. Thus, policies will have to consider such requirements. Figure 4.6. Resource Assignment Scheme Design Process Selection of Metric: Proper metric selection is significant in assigning resources. Network parameters provide varying utilities to participants. Fairness of as- signment is associated with each parameter. For example, TCP friendliness concerns with providing flow-rate fairness. Briscoe’s argument [29] on fairness mechanisms derived from the cost of a users action to others leads to a different sort of metric formulation. Taking bytes instead of packets to design congestion management schemes have been proposed [96]. Thus different metrics can be used while justifying fairness of distribution and they will have consequent impact on the service resulting from the policy. Setting appropriate weights: We highlighted the significance of weights to prioritize participants of resource assignment policy. Weights can lead to unequal assignment of resources under fairness notions. Appropriateness of weights can be a different problem of its own depending on the context of resource assignment. It is best if suitable parameters can be selected that act as weights automatically for the participating individuals. 55 Distributive Justice Trade-off exists: One can build policies that allow for starvation of expensive flows in order to achieve spectral or some other resource’s efficiency. Such unrestrained optimization of can lead to extreme unfairness. Also attempting a thorough inspection of all the attributes of the participating entities require heavy computation. Thus juggling between fairness, efficient utilization and overall welfare to obtain a balanced and stable trade-off is key in designing resource allocation schemes. Contradicting policies: One should be aware of contradicting policies and the resulting situation. Random access provides certain kind of distribution policy while priority-based access provides a different kind. If they are cascaded in the different layers or through different middle-boxes it morphs into quite different overall policy. Fair Rules Vs. Fair Results: Two contrasting perceptions come into play in this regards: ‘It is not fair if the result is not fair’ vs. ‘It is not fair if the rules are not fair’. Not everyone is fair minded and/or with similar capabilities and/or at the same starting level, thus fair rules might not lead to fair results. While on the other hand, ensuring fair results will require more effort and authoritative policies. It helps to establish first and foremost whether the network policy is driven by ’fair rules’ or ’fair result’. Following these steps to design and administer communication networks will help improve the distributive justice provided by the network. The objective of an optimal resource assignment in communication networks is a moving target, but one can come closer to satisfying the fairness needs with due consideration to the different aspects, involved parameters and informed contextual judgment. 56 5. Summary & Discussions The research presented in this doctoral thesis focuses on analyzing the principles of resource allocation mechanisms in network data transport. It challenges the flow-length agnostic bandwidth allocation and demonstrates how an alternative data transport protocol would perform. The results of this research are reported in Publication I - Publication IV The motivations for a short flow favoring data transport are presented in Chapter 1. The benefits of improving user experience and energy efficiency are described. Also the need for clearly understood fairness notions is highlighted and how short flows can be prioritized under some notions are described. The design and implementation of a short flow favoring data transport al- gorithm (FLD_TCP) is presented in Chapter 2. Slow start and congestion avoidance algorithms of TCP were modified to favor the transport of short flows. The evaluation results of the new TCP is described in Chapter 3. The simula- tions test showed promising results which led to actual Linux implementation and evaluation of real file transfers. Additionally the performance improvement to web page loading in modern browsers was reported using page loads of top websites via a FLD_TCP equipped proxy. Chapter 4 delves into the holistic and pragmatic view to the issues of distribu- tive justice in network resources. Discussions on the origins and development of fairness notions in the society at large was tied to the resource assignment schemes in communication networks. Using the α-fairness paradigm, the effect of prioritization in assigned resource amounts under different fairness notions as well as under different proportions of participants were analyzed. The non- commutative property of resource assignment schemes when they occur in cascades (which is often the case in communication networks) was demonstrated. By bringing out such issues of distributive justice in network communications a set of guidelines was prescribed to help network architects, designers and administrator to implement appropriate systems. 57 Summary & Discussions 5.1 On Improving FLD_TCP As stated in the FLD_TCP design section in Chapter 2, FLD_TCP developed in this work does not implement safeguards against the overshoot of sending rate during slow-start. Algorithms developed via various works [55, 56, 57, 58, 53] can refine FLD_TCP’s performance and help avoid the wasteful retransmissions during slow-start overshoot. In our implementation, we set the flow length threshold value to be 2 MB. The threshold value was derived from empirical data regarding Internet flow size distributions. One significant improvement for FLD_TCP would be to replace the threshold value with something more scalable such as context based dynamic values. In such a scenario, the context could perhaps be obtained from other layers. As an example, QUIC has been shown to allow for such context inference such as bandwidth estimates from client side [97]. While ours was only a sender-side algorithm in its implementation, the un- derlying principle of the algorithm is in fact not tied to TCP only. It can be implemented in other transport layer protocols and even be exported to other network layers. For example, in a QUIC-like operation model, such flow length dependent treatment can be implemented into the stream multiplexing logic. And, if the congestion state is shared across multiple streams within a con- nection, it could provide nested policies, affecting connection-level as well as stream-level prioritization. One could even further expand such flow-length dependent treatment of flows at different network nodes or even as a distributed algorithm. 5.2 On Network Data Transport The speed by which communication networks are evolving is phenomenal. The Internet data transport landscape has seen many changes throughout the du- ration of this research and the trend is likely to continue. This means that the traffic interactions in the Internet will grow more complex as various stakehold- ers of the networks tussle to morph the hourglass view [98] of the Internet to their will. In many cases, the original requirements for the communications networks infrastructures are insufficient and the original principles upon which the network protocols were built are no longer valid. The End-to-End princi- ple [99] does not completely address today’s federated networks of giant cloud providers and their data centers and Content Delivery Network (CDN)s along with paradigm shifting technologies such as Edge computing [100], Software- Defined Networking (SDN) [101] and Network Functions Virtualization (NFV) [102]. This opens discussions on the new ways of thinking data transport on the Internet. Many developments are happening that directly or indirectly affect how services get assigned network resources for their data transport. The prolif- 58 Summary & Discussions eration of content delivery networks have brought content closer to the end user reducing the latency. On top of the traditional CDN providers such as Akamai and Limelight, we now are also seeing content providers themselves (such as Netflix) take initiatives to push this paradigm [103]. With technologies such as edge computing and cloudlets that enable the Fifth Generation (5G) networks, the network path between the end hosts of data transport is getting shorter and also restricted within a more local administrative boundary. This implies that the cascades of resource allocation nodes would be more manageable. To use an aggressive data transport protocol for all flows in the Internet would not be recommendable as it would lead to "the tragedy of the commons" via congestion collapse. Regardless, with a selective prioritization we can still gain the benefits of improved user experience and potential savings in energy consumption of wireless devices with a stable behavior. FLD_TCP shows the potential to enable such improvements. QoS mechanisms allow for selective prioritization but the basis and justifica- tion of such prioritization needs rigorous deliberation by the stakeholders. The issues of Net Neutrality have demonstrated that out of the many challenges in this area, technical challenge is perhaps the easiest one. Certain types of preferential treatment of data flows in the Internet are deemed acceptable by the society, such as those for traffic optimization and service requirements. On the other hand, questions arise if data transfers via Multipath TCP and P2P are indeed workarounds to obtain more than fair share of the network resources. Even when HTTP pipelining or Multiplexing is used, the advantage from sharing the connection setup cost among piggybacking data-transfer pro- vides an advantage compared to other flows that do not have such enabled. As the Internet evolves, answers from a distributive justice perspective are sought. Solutions and their implementations will be milestones to look forward to. We are also witnessing some developments in decoupling of congestion control from transport layer so that they can be optionally and quite easily plugged in via the upper layers. This implies congestion control implementations are moving from operating system to browsers or similar applications. Any applica- tion developer can implement congestion control algorithms of his/her choosing (or embodying their notion of resource allocation fairness) and plug into their applications. Examples would be Google’s development of congestion control mechanisms for Real-Time Communication in browsers and mobile applications (WebRTC) [104] as well as for QUIC [105]. For big players in the ecosystem that have dominant market penetration of both server and client side applications, this makes in-house build and release of such new congestion control algorithms (incorporating the will of said player) faster and easier. With no safeguards from the operating system, the resource allocation policies baked into the network traffic flows in such a scenario will be significantly more heterogeneous and the tussles among them more dynamic. Such an ecosystem in the communica- tion networks definitely warrants scrutiny from various interest groups, from policymakers and governance to service providers and network providers. 59 Summary & Discussions Decision makers as well as the society at large need to decide on their selec- tion of fairness notions and the resulting development and implementation of resource assignment schemes at different areas of communication networks. And for them, the research world needs to provide better tools and analysis so that sound and actionable principles can be based upon. The results and some techniques used here can be applied, perhaps in the design of future networks, to provide better services to the user and to efficiently utilize the resources available to the network. 60 References [1] Netcraft. February 2019 Web Server Survey. Available at: https://news. netcraft.com/archives/2019/02/28/february-2019-web-server-survey. html. [Accessed: Mar. 26, 2019]. [2] Recommendation ITU-T. X. 200: Information Technology–Open Systems Interconnection–Basic Reference Model: The Basic Model. International Telecommunication Union. 1994. [3] R. Braden. Requirements for Internet Hosts - Communication Layers. RFC 1122. IETF, Oct. 1989. URL: http://www.rfc- editor.org/rfc/ rfc1122.txt. [4] R. Fielding and J. Reschke. Hypertext Transfer Protocol (HTTP/1.1): Message Syntax and Routing. RFC 7230. IETF, June 2014. URL: http: //www.rfc-editor.org/rfc/rfc7230.txt. [5] R. Stewart. Stream Control Transmission Protocol. RFC 4960. IETF, Sept. 2007. URL: http://www.rfc-editor.org/rfc/rfc4960.txt. [6] A. Ford et al. TCP Extensions for Multipath Operation with Multiple Addresses. RFC 6824. IETF, Jan. 2013. URL: http://www.rfc-editor.org/ rfc/rfc6824.txt. [7] S. Floyd, E. Kohler, and J. Padhye. Profile for Datagram Congestion Control Protocol (DCCP) Congestion Control ID 3: TCP-Friendly Rate Control (TFRC). RFC 4342. IETF, Mar. 2006. URL: http://www.rfc- editor.org/rfc/rfc4342.txt. [8] T. Dierks and E. Rescorla. The Transport Layer Security (TLS) Protocol Version 1.2. RFC 5246. IETF, Aug. 2008. URL: http://www.rfc-editor. org/rfc/rfc5246.txt. [9] E. Rescorla and N. Modadugu. Datagram Transport Layer Security Ver- sion 1.2. RFC 6347. IETF, Jan. 2012. URL: http://www.rfc-editor.org/ rfc/rfc6347.txt. [10] H. Schulzrinne et al. RTP: A Transport Protocol for Real-Time Applica- tions. RFC 3550. IETF, July 2003. URL: http://www.rfc-editor.org/rfc/ rfc3550.txt. 61 References [11] R. Fielding and J. Reschke. Hypertext Transfer Protocol (HTTP/1.1): Authentication. RFC 7235. IETF, June 2014. URL: http://www.rfc- editor.org/rfc/rfc7235.txt. [12] M. Belshe, R. Peon, and M. Thomson. Hypertext Transfer Protocol Version 2 (HTTP/2). RFC 7540. IETF, May 2015. URL: http://www.rfc-editor. org/rfc/rfc7540.txt. [13] M. Bishop. Hypertext Transfer Protocol Version 3 (HTTP/3). Internet- Draft, (Work in Progress), draft-ietf-quic-http-19. IETF, Mar. 2019. URL: http://www.ietf.org/internet-drafts/draft-ietf-quic-http. [14] J. Roskind. Multiplexed Stream Transport over UDP. Available at: https: //docs.google.com/document/d/1RNHkx_VvKWyWg6Lr8SZ-saqsQx7rFV-ev2jRFUoVD34. QUIC, edited Dec. 2013. [Accessed: Dec. 8, 2019]. [15] J. Wroclawski. The Use of RSVP with IETF Integrated Services. RFC 2210. IETF, Sept. 1997. URL: http://www.rfc-editor.org/rfc/rfc2210.txt. [16] K. Nichols et al. Definition of the Differentiated Services Field (DS Field) in the IPv4 and IPv6 Headers. RFC 2474. IETF, Dec. 1998. URL: http: //www.rfc-editor.org/rfc/rfc2474.txt. [17] R. Kohavi and R. Longbotham. Online Experiments: Lessons Learned. In: Computer Vol. 40.No. 9 (2007), pp. 103–105. IEEE. [18] P. R. Selvidge, B. S. Chaparro, and G. T. Bender. The World Wide Wait: Effects of Delays on User Performance. In: International Journal of In- dustrial Ergonomics Vol. 29.No. 1 (2002), pp. 15–20. Elsevier. [19] J. A. Jacko, A. Sears, and M. S. Borella. The Effect of Network Delay and Media on User Perceptions of Web Resources. In: Behaviour & Information Technology Vol. 19.No. 6 (2000), pp. 427–439. Taylor & Francis. [20] V. Aggarwal et al. Characterizing Fairness for 3G Wireless Networks. In: 2011 Proc. of Workshop on Local Metropolitan Area Networks (LANMAN). 2011, pp. 1–6. IEEE. [21] Httparchive. Page Weight. Available at: https://httparchive.org/reports/ page-weight. [Accessed: Mar. 26, 2019]. [22] N. Brownlee and K.C. Claffy. Internet Stream Size Distributions. In: SIG- METRICS Performance Evaluation Review Vol. 30.No. 1 (2002), pp. 282– 283. ACM. [23] A. Shehabi et al. United States Data Center Energy Usage Report. Tech. rep. Lawrence Berkeley National Laboratory, June 2016. [24] N. Sklavos and K. Touliou. Power Consumption in Wireless Networks: Techniques & Optimizations. In: 2007 Proc. of The International Confer- ence on "Computer as a Tool". 2007, pp. 2154–2157. IEEE. [25] K. C. Barr and K. Asanović. Energy-Aware Lossless Data Compression. In: Transactions on Computer Systems (TOCS) Vol. 24.No. 3 (2006), pp. 250– 291. ACM. 62 References [26] S. Goel and T. Imielinski. Etiquette Protocol for Ultra Low Power Opera- tion in Sensor Networks. Tech. rep. DCS-TR-552DCS-TR-552, CS Dept., Rutgers University, 2004. [27] K. Lan and J. Heidemann. On the Correlation of Internet Flow Char- acteristics. Tech. rep. ISI-TR-574, USC/Information Sciences Institute, 2003. [28] S. Floyd and K. Fall. Promoting the Use of End-to-End Congestion Con- trol in the Internet. In: Transactions on Networking Vol. 7.No. 4 (1999), pp. 458–472. IEEE/ACM. [29] B. Briscoe. Flow Rate Fairness: Dismantling a Religion. In: SIGCOMM Computer Communication Review Vol. 37.No. 2 (2007), pp. 63–74. ACM. [30] D. R. Smith. A New Proof of the Optimality of the Shortest Remaining Processing Time Discipline. In: Operations Research Vol. 26.No. 1 (1978), pp. 197–199. INFORMS. [31] M. Mathis. Heresy following TCP: Train-wreck. http://oakham.cs.ucl. ac.uk/pipermail/iccrg/2008-April/thread.html. Note sent to the ICCRG mailing list. [Accessed: Mar. 26, 2019]. [32] J. Semke, J. Mahdavi, and M. Mathis. Automatic TCP Buffer Tuning. In: SIGCOMM Computer Communication Review Vol. 28.No. 4 (Oct. 1998), pp. 315–323. ACM. [33] D. X. Wei and P. Cao. NS-2 TCP-Linux: an NS-2 TCP Implementation with Congestion Control Algorithms from Linux. In: 2006 Proc. of work- shop on ns-2: the IP network simulator. 2006, p. 9. ACM. [34] J. Nagle. Congestion Control in IP/TCP Internetworks. RFC 896. IETF, Jan. 1984. URL: https://www.rfc-editor.org/rfc/rfc896.txt. [35] M. Mathis et al. TCP Selective Acknowledgment Options. RFC 2018. IETF, Oct. 1996. URL: https://www.rfc-editor.org/rfc/rfc2018.txt. [36] D. Borman et al. TCP Extensions for High Performance. RFC 7323. IETF, Sept. 2014. URL: https://www.rfc-editor.org/rfc/rfc7323.txt. [37] F. Baker and G. Fairhurst. IETF Recommendations Regarding Active Queue Management. RFC 7567. IETF, July 2015. URL: https://www.rfc- editor.org/rfc/rfc7567.txt. [38] K. Nichols and V. Jacobson. Controlling Queue Delay. In: Queue Vol. 10.No. 5 (May 2012), pp. 20–34. ACM. [39] K. Ramakrishnan, S. Floyd, and D. Black. The Addition of Explicit Con- gestion Notification (ECN) to IP. RFC 3168. IETF, Sept. 2001. URL: http://www.rfc-editor.org/rfc/rfc3168.txt. [40] V. Jacobson. Congestion Avoidance and Control. In: SIGCOMM Computer Communication Review Vol. 18.No. 4 (Aug. 1988), 314–329. ACM. 63 References [41] M. Allman, S. Floyd, and C. Partridge. Increasing TCP’s Initial Window. RFC 3390. IETF, Oct. 2002. URL: https://www.rfc- editor.org/rfc/ rfc3390.txt. [42] J. Chu et al. Increasing TCP’s Initial Window. RFC 6928. IETF, Apr. 2013. URL: https://www.rfc-editor.org/rfc/rfc6928.txt. [43] K. Jacobsson et al. Round-Trip Time Estimation in Communication Networks using Adaptive Kalman Filtering. 2004 Proc. of Reglermöte. 2004. [44] M. Mathis. Relentless Congestion Control. Internet-Draft, (Work in Progress), draft-mathis-iccrg-relentless-tcp-00. IETF, Mar. 2009. URL: https:// tools.ietf.org/html/draft-mathis-iccrg-relentless-tcp-00. [45] S. J. Leffler, M. J. Karels, and M. K. McKusick. The Design and Im- plementation of the 4.3 BSD UNIX Operating System. Reading, MA: Addison-Wesley, 1989. [46] L. Xu, K. Harfoush, and I. Rhee. Binary Increase Congestion Control (BIC) for Fast Long-Distance Networks. In: 2004 Proc. of INFOCOM Conference on Computer Communications Workshops. Vol. 4. Mar. 2004, pp. 2514–2524. IEEE. [47] S. Ha, I. Rhee, and L. Xu. CUBIC: A New TCP-Friendly High-Speed TCP Variant. In: SIGOPS Operating Systems Review Vol. 42.No. 5 (2008), pp. 64–74. ACM. [48] N. Cardwell et al. BBR: Congestion-Based Congestion Control. In: Queue Vol. 14.No. 5 (Oct. 2016), 20–53. ACM. [49] S. Floyd et al. Quick-Start for TCP and IP. RFC 4782. IETF, Jan. 2007. URL: https://tools.ietf.org/rfc/rfc4782.txt. [50] D. Liu et al. Congestion Control Without a Startup Phase. In: 2007 Proc. of International Workshop on Protocols for Fast Long-Distance Networks. Feb. 2007. PFLDnet. [51] Q. Li, M. Dong, and P. Godfrey. Halfback: Running short flows quickly and safely. In: 2015 Proc. of Conference on Emerging Networking Experiments and Technologies. 2015, p. 22. ACM. [52] S. Floyd. Limited Slow-Start for TCP with Large Congestion Windows. RFC 3742. IETF, Mar. 2004. URL: https://tools.ietf.org/rfc/rfc3742. txt. [53] S. Ha and I. Rhee. Taming the Elephants : New TCP Slow Start. In: Com- puter Networks: The International Journal of Computer and Telecommu- nications Networking Vol. 55.No. 9 (2011), pp. 1–19. Elsevier. [54] P. Balasubramanian, Y. Huang, and M. Olson. HyStart++: Modified Slow Start for TCP. Internet-Draft, (Work in Progress), draft-balasubramanian- tcpm-hystartplusplus-01. IETF, July 2019. URL: http://www.ietf.org/ internet-drafts/draft-balasubramanian-tcpm-hystartplusplus-01.txt. 64 References [55] A. Aggarwal, S. Savage, and T. Anderson. Understanding the performance of TCP pacing. In: 2000 Proc. of INFOCOM Conference on Computer Communications. Vol. 3. 2000, pp. 1157–1165. IEEE. [56] D. Wei et al. TCP Pacing Revisited. In: 2006 Proc. of INFOCOM Confer- ence on Computer Communications. Vol. 2. 2006, p. 3. IEEE. [57] V. Konda and J. Kaur. RAPID: Shrinking the Congestion-Control Timescale. In: 2009 Proc. of INFOCOM Conference on Computer Communications. 2009, pp. 1–9. IEEE. [58] J. Misund and B. Briscoe. Paced Chirping: Rapid Flow Start with very Low Queuing Delay. In: 2019 Proc. of INFOCOM Conference on Computer Communications Workshops. Apr. 2019, pp. 798–804. IEEE. [59] C. Jin, D. X. Wei, and S. H. Low. FAST TCP: Motivation, Architecture, Algorithms, Performance. In: 2004 Proc. of INFOCOM Conference on Computer Communications. Vol. 4. 2004, pp. 2490–2501. IEEE. [60] A. Venkataramani, R. Kokku, and M. Dahlin. TCP Nice: A Mechanism for Background Transfers. In: SIGOPS Operating Systems Review Vol. 36.No. SI (2002), pp. 329–343. ACM. [61] A. Kuzmanovic and E. W. Knightly. TCP-LP: A Distributed Algorithm for Low Priority Data Transfer. In: 2003 Proc. of INFOCOM Conference on Computer Communications. Vol. 3. 2003, pp. 1691–1701. IEEE. [62] S. Shalunov et al. Low Extra Delay Background Transport (LEDBAT). RFC 6817. IETF, Dec. 2012. URL: http://www.rfc- editor.org/rfc/ rfc6817.txt. [63] Alexa. The Top 500 Sites on the Web. Available at: http://www.alexa.com/ topsites. [Accessed Mar. 26 2019]. [64] S. Pokhrel and G.R. Moktan. FLD_TCP. https://github.com/grmoktan/ FLDTCP [Accessed: Mar. 16, 2020]. 2014. [65] S. Hemminger. Network Emulation with NetEm. In: 2005 Proc. of Linux Conference Australia. 2005, pp. 18–23. linux.conf.au. [66] A. Tirumala et al. iPerf - The Ultimate Speed Test Tool for TCP, UDP and SCTP. 2005. URL: https://iperf.fr/. [Accessed: Mar. 16, 2020]. [67] A. Retana. Network evolution: the Hierarchy of Networking Needs. Blog, Internet Archive. June 20 2011. URL: http://h30507.www3.hp.com/t5/HP- Networking/Network-evolution-the-Hierarchy-of-Networking-Needs/ba- p/94169. [Accessed: Mar. 26, 2019]. [68] A. H. Maslow. A Theory of Human Motivation. In: Psychological review Vol. 50.No. 4 (1943), p. 370. American Psychological Association. [69] D. Clark et al. Tussle in Cyberspace: Defining Tomorrow’s Internet. In: SIGCOMM Computer Communication Review. Vol. 32. 4. 2002, pp. 347– 356. ACM. 65 References [70] S. F. Brosnan and F. BM. De Waal. Monkeys Reject Unequal Pay. In: Nature Vol. 425.No. 6955 (2003), pp. 297–299. Nature Publishing Group. [71] J. Henrich et al. Markets, Religion, Community Size, and the Evolution of Fairness and Punishment. In: science Vol. 327.No. 5972 (2010), pp. 1480– 1484. American Association for the Advancement of Science. [72] J. Lamont and C. Favor. Distributive Justice. In: The Stanford Encyclo- pedia of Philosophy. Ed. by Edward N. Zalta. 2012. URL: http://plato. stanford.edu/archives/win2012/entries/justice-distributive/. [73] J. Rawls. A Theory of Justice. Harvard University Press, 2009. [74] M. Parkin, M. Powell, and K. Matthews. Economics (7th edn). Pearson Education Limited, England, 2008, pp. 102–103. [75] G. Hardin. The Tragedy of the Commons. In: Journal of Natural Resources Policy Research Vol. 1.No. 3 (2009), pp. 243–253. Taylor & Francis. [76] J. L. Coleman. Efficiency, Utility, and Wealth Maximization. In: Hofstra Law Review Vol. 8.No. 3 (1979), p. 509. URL: https://scholarlycommons. law.hofstra.edu/hlr/vol8/iss3/3/. [77] J. Wong, J. Sauve, and J. Field. A Study of Fairness in Packet-Switching Networks. In: Transactions on Communications Vol. 30.No. 2 (Feb. 1982), pp. 346–353. IEEE. [78] P. K. Varshney and D. Surajit. Fairness in Computer Networks: A Survey. In: IETE Journal of Research Vol. 36.No. 5-6 (1990), pp. 440–445. Taylor & Francis. [79] H. Shi et al. Fairness in Wireless Networks: Issues, Measures and Chal- lenges. In: Communications Surveys & Tutorials Vol. 16.No. 1 (2014), pp. 5–24. IEEE. [80] M. Gerla, H.W. Chan, and J.R.B. De Marca. Fairness in Computer Net- works. In: 1985 Proc. of International Conference on Communications. 1985, pp. 1384–1389. IEEE. [81] J. Jaffe. Bottleneck Flow Control. In: Transactions on Communications Vol. 29.No. 7 (1981), pp. 954–962. IEEE. [82] C. Douligeris and L.N. Kumar. Fairness Issues in the Networking Envi- ronment. In: Computer Communications Vol. 18.No. 4 (1995), pp. 288– 299. Elsevier. [83] R. Denda, A. Banchs, and W. Effelsberg. The Fairness Challenge in Com- puter Networks. In: Quality of Future Internet Services. 2000, pp. 208– 220. Springer. [84] R. Hwang and C. Chi. Fairness in QoS guaranteed networks. In: 2003 Proc. of International Conference on Communications Vol. 1 (2003), pp. 218–222. IEEE. 66 References [85] A. Kumar and J. Kleinberg. Fairness Measures for Resource Allocation. In: Proc. 41st Annual Symposium on Foundations of Computer Science. 2000, pp. 75–85. IEEE. [86] P. Nilsson. Fairness in Communication and Computer Network Design. PhD thesis. Lund University, 2006. [87] D.M. Chiu and A.S.W. Tam. Fairness of Traffic Controls for Inelastic Flows in the Internet. In: Computer Networks Vol. 51.No. 11 (2007), pp. 2938–2957. Elsevier. [88] R. Jain, D.M. Chiu, and W. R. Hawe. A Quantitative Measure of Fairness and Discrimination for Resource Allocation in Shared Computer Systems. Vol. 38. Eastern Research Laboratory, Digital Equipment Corporation Hudson, MA, 1984. [89] Z. Chen and C. Zhang. A New Measurement for Network Sharing Fairness. In: Computers & Mathematics with Applications Vol. 50.No. 5-6 (Sept. 2005), pp. 803–808. Elsevier. [90] Chen, Z. and Zhang, C. Network Sharing Fairness Function with Consid- eration of Priority Levels. In: Computers & Mathematics with Applica- tions Vol. 60.No. 9 (2010), pp. 2548–2555. Elsevier. [91] S. Floyd. Metrics for the Evaluation of Congestion Control Mechanisms. RFC 5166. IETF, Mar. 2008. URL: http://www.rfc- editor.org/rfc/ rfc5166.txt. [92] T. Lan et al. An Axiomatic Theory of Fairness in Network Resource Allo- cation. In: 2010 Proc. of INFOCOM Conference on Computer Communi- cations. San Diego, California, USA, 2010, 1343–1351. IEEE. [93] A. Demers, S. Keshav, and S. Shenker. Analysis and Simulation of a Fair Queueing Algorithm. In: SIGCOMM Computer Communication Review. Vol. 19. 4. 1989, pp. 1–12. ACM. [94] F. P. Kelly, A. K. Maulloo, and D. K. H. Tan. Rate Control for Commu- nication Networks: Shadow Prices, Proportional Fairness and Stability. In: Journal of the Operational Research Society Vol. 49.No. 3 (Apr. 1998), pp. 237–252. Taylor & Francis. [95] S. Diamond and S. Boyd. CVXPY: A Python-Embedded Modeling Lan- guage for Convex Optimization. In: Journal of Machine Learning Re- search Vol. 17.No. 83 (2016), pp. 1–5. Microtome Publishing. [96] B. Briscoe and J. Manner. Byte and Packet Congestion Notification. RFC 7141. IETF, Feb. 2014. URL: http://www.rfc-editor.org/rfc/rfc7141.txt. [97] J. Rüth et al. Blitz-starting QUIC Connections. In: arXiv e-prints (May 2019). URL: https://arxiv.org/abs/1905.03144v1. [98] S. Akhshabi and C. Dovrolis. The Evolution of Layered Protocol Stacks Leads to an Hourglass-Shaped Architecture. In: SIGCOMM Computer Communication Review Vol. 41.No. 4 (2011), pp. 206–217. ACM. 67 References [99] J. H. Saltzer, D. P. Reed, and D. D. Clark. End-to-End Arguments in System Design. In: Transactions on Computer Systems Vol. 2.No. 4 (Nov. 1984), 277–288. ACM. [100] W. Shi et al. Edge Computing: Vision and Challenges. In: Internet of Things Journal Vol. 3.No. 5 (2016), pp. 637–646. IEEE. [101] D. Kreutz et al. Software-Defined Networking: A Comprehensive Survey. In: Proceedings of the IEEE Vol. 103.No. 1 (2015), pp. 14–76. IEEE. [102] B. Han et al. Network Function Virtualization: Challenges and Opportu- nities for Innovations. In: IEEE Communications Magazine Vol. 53.No. 2 (2015), pp. 90–97. IEEE. [103] T. Böttger et al. Open Connect Everywhere: A Glimpse at the Internet Ecosystem Through the Lens of the Netflix CDN. In: SIGCOMM Computer Communication Review Vol. 48.No. 1 (2018), pp. 28–34. ACM. [104] S. Holmer et al. A Google Congestion Control Algorithm for Real-Time Communication. Internet-Draft, (Work in Progress), draft-alvestrand- rmcat-congestion-03. IETF, June 2015. URL: https://tools.ietf.org/ html/draft-alvestrand-rmcat-congestion. [105] J. Iyengar and I. Swett. QUIC Loss Detection and Congestion Control. Internet-Draft, (Work in Progress), draft-ietf-quic-recovery-18. IETF, Jan. 2019. URL: http://www.ietf.org/internet-drafts/draft-ietf-quic- recovery. 68 Errata Publication I • The indices of Table I and II should read Burst1(512KB), Burst2(1MB), Burst3(1.5MB) and Burst4(2MB) Publication III The second author’s name has been published as Nutti Varis while it should have been Nuutti Varis. Publication IV The figure titled "Different social indifference curves" should include two curves per subfigure as below: Figure 5.1. Different Social Indifference Curves 69 - otl a A D D 51 1 / 0 2 0 2 +e cij da*G MFT SH 9 NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD fi.otlaa.www + SSENISUB YMONOCE + TRA + NGISED ERUTCETIHCRA + ECNEICS YGOLONHCET REVOSSORC LAROTCOD SNOITATRESSID n at k o M j a R m at u a G t r o p s n ar T at a D kr o wt e N ni s t n e m n gi ss A e cr u os e R y ti sr ev i n U ot l a A 0202 gnikrowteN dna snoitacinummoC fo tnemtrapeD ni stnemngissA ecruoseR tropsnarT ataD krowteN natkoM jaR matuaG LAROTCOD SNOITATRESSID - otl a A D D 51 1 / 0 2 0 2 +e cij da*G MFT SH 9 NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD fi.otlaa.www + SSENISUB YMONOCE + TRA + NGISED ERUTCETIHCRA + ECNEICS YGOLONHCET REVOSSORC LAROTCOD SNOITATRESSID n at k o M j a R m at u a G t r o p s n ar T at a D kr o wt e N ni s t n e m n gi ss A e cr u os e R y ti sr ev i n U ot l a A 0202 gnikrowteN dna snoitacinummoC fo tnemtrapeD ni stnemngissA ecruoseR tropsnarT ataD krowteN natkoM jaR matuaG LAROTCOD SNOITATRESSID - otl a A D D 51 1 / 0 2 0 2 +e cij da*G MFT SH 9 NBSI 4-2893-06-259-879 )detnirp( NBSI 1-3893-06-259-879 )fdp( NSSI 4394-9971 )detnirp( NSSI 2494-9971 )fdp( ytisrevinU otlaA gnireenignE lacirtcelE fo loohcS gnikrowteN dna snoitacinummoC fo tnemtrapeD fi.otlaa.www + SSENISUB YMONOCE + TRA + NGISED ERUTCETIHCRA + ECNEICS YGOLONHCET REVOSSORC LAROTCOD SNOITATRESSID n at k o M j a R m at u a G t r o p s n ar T at a D kr o wt e N ni s t n e m n gi ss A e cr u os e R y ti sr ev i n U ot l a A 0202 gnikrowteN dna snoitacinummoC fo tnemtrapeD ni stnemngissA ecruoseR tropsnarT ataD krowteN natkoM jaR matuaG LAROTCOD SNOITATRESSID Aalto_DD_2020_115_Moktan_verkkoversio 
work_sugxqxwta5ddtmbkbckzyk3qzm	----	Deaf Liberation Theology and Social Justice religions Article Deaf Liberation Theology and Social Justice Hannah Lewis All Saints Centre for Mission and Ministry, Liverpool L22 0LL, UK; hannah.lewis@liverpool.anglican.org Received: 3 September 2017; Accepted: 17 October 2017; Published: 24 October 2017 Abstract: Deaf Liberation Theology is a branch of theology that has been developed over the past twenty years, with the book Deaf Liberation Theology published by Ashgate in 2007 (Lewis 2007) as a focal point of this development. This article briefly looks at the roots of Deaf Liberation Theology in both the concept of Deaf people as an oppressed linguistic minority and the principles of Liberation theology as an engaged contextual theology using the methodology of the hermeneutical circle. It then seeks to examine the impact of Deaf Liberation Theology in practice over the past decade, in particular the impact especially through increasing self-confidence and self-esteem so that deaf people themselves feel empowered to work for social justice. It will use personal reflections by a number of deaf individuals in the UK as source material, and look at how this experience and developments in Deaf studies might develop into the future to further develop social justice. Keywords: deaf theology; liberation theology; practical theology; contextual theology; social justice; intersectionality; feminist theology; disability theology 1. Introduction Deaf Liberation Theology, like other Christian theologies of liberation (for example those from Latin America, or feminist theology) has always been intended to be transformational in its impact— not just a nice theory, but a practical subject that would lead to increased social justice for deaf1 people within the church and within the world. The methodology of theologies of liberation, rooted in experience and sociopolitical analysis, and leading to action assumes, as Phan (2000) states that “any genuine liberation theology anywhere must fight against all forms of oppression”. Petrella (2006) agrees; “Latin American liberation theology was born with the promise of being a theology that would not rest with merely talking about liberation but would actually help liberate people”. However, Petrella argues, the social and political changes in Latin America, and especially the demise of socialism, have led to liberation theology losing sight of its historical project and simply “rehashing their rereading of theology” leading many to conclude that liberation theology is stagnant or even dead. I am very aware of these criticisms with respect to Deaf Liberation Theology, and as a reflexive practitioner in the field of deaf ministry have often wondered whether Deaf Liberation Theology does have any practical impact on the lives of deaf people or whether it is simply a nice idea that may affect the field of academic theological enquiry with its particular perspective but does not change anything in the lives of those deaf people who encounter it. However to investigate a question such as ‘does Deaf Liberation Theology actually help liberate deaf people?’ is a challenge. I could point to the work I’ve done in my own context using the principles 1 For many years a convention has operated in deaf studies and related areas whereas a capital D is used to indicate Deaf people as a linguistic/cultural minority and lowercase d to indicate deaf people as those experiencing hearing loss or impairment. However Kusters et al. (2017) argue that in a changing academic environment, as debate moves on, this is often an unhelpful and unintentionally oversimplifying distinction and suggest that lower case ‘deaf’ is used for all deaf people unless there is a good reason to continue to use Deaf (for example Deaf Liberation Theology is capitalized in the same way that Black or Feminist Theology might be). Religions 2017, 8, 232; doi:10.3390/rel8100232 www.mdpi.com/journal/religions http://www.mdpi.com/journal/religions http://www.mdpi.com http://dx.doi.org/10.3390/rel8100232 http://www.mdpi.com/journal/religions Religions 2017, 8, 232 2 of 11 of Deaf Liberation Theology and talk about how it’s made a difference to the local Deaf church, perhaps backing this up with interviews with members of the churches, however this method would be fraught with difficulty. Quite apart from the risk of overestimating the impact I’ve had (similar to the risk of using the method of theological reflection as a way of highlighting the ‘rightness’ of your position noted by (Thompson 2008)) my role as a leader of the congregation would make it very difficult to conduct any form of face to face interview with members of the churches because of the difference in power. I may be deaf along with them, but I am a deaf person with education and in a position of authority (what (Ladd 2003) calls a subaltern-elite researcher). Both (Morris 2008) and (Sutherland and Rogers 2014) conclude that written questionnaires are completely unsuited to the researching the views of deaf sign language users and therefore I could not even give out questionnaires to be handed back anonymously. In addition, the period of time I have been here has been long and the pace of change has been necessarily slow so while members of the churches might say ‘oh yes, there’s been a practical impact on my life’ they may not remember what the impact has been or be able to articulate it in so many words. So I was left with a question to be answered, but in search of a method to approach it. Much of my work in the field of theology has been as a participant observer, and therefore I decided to watch and wait and see what emerged of its own accord, not driven by my questions. In 2013, a conference on Deaf Perspectives in Theology was held in Telford, UK. This was a follow up to a conference with the same title 10 years earlier, but this time all the presenters were deaf. For the afternoon session several deaf people were invited to present their own reflections on the theme of ‘empowerment’; and two in particular struck me as relating to my question of what practical impact Deaf Liberation Theology had or could have on the lives of deaf people. Bloomfield (2016) and Silo (2013) both signed about the development of their deaf identity (a key concept in deaf liberation) in the context of their faith and it was clear that for both of them while they had initially thought that deaf identity and deaf liberation were either optional for or inimical to the development of their faith, they had come to conclude that they needed both to be empowered within the church. While neither of them explicitly referenced Deaf Liberation Theology the overlap in discourse because of the shared concept of deaf identity was strong enough for their presentations to be an independent witness to one form of practical impact of Deaf Liberation Theology. A third witness emerged in the same year during a course looking at ministry in the deaf community when students were encouraged to produce a reflection on their own journey to faith and to ministry. One deaf student, Myatt, explicitly referenced Deaf Liberation Theology as being significant for her—not only in the development of her faith, but in the development of her self-confidence and deaf identity to the point where she felt she could explore her vocation to ministry and leadership within the church and this was another spontaneous testimony to the impact of Deaf Liberation Theology. Continuing involvement with Myatt as mentor and supervisor for her BA thesis led to several other conversations and discussions when she referred several times to how important she felt Deaf Liberation Theology was, not only for herself, but for the deaf community. As her reflections have not been printed in any form (unlike Silo and Bloomfield who rendered their presentations into written English for the published conference proceedings) I have had to check my recollection of what Myatt has said with her and ask her permission to include her reflections in this article. This methodology, of participant observer of a very small sample has both strengths and weaknesses. It does avoid at least some of the risks highlighted above (of my research simply finding the answers I wanted because I want Deaf Liberation Theology to have an impact) and for me the fact that the three women independently presented similar reflections on the impact of deaf liberation on their lives suggests that others may have similar experience even if they cannot articulate it (or do not have the opportunity to articulate it). The weakness of participant observer is always that in qualitative field work there is some subjectivity involved due to the researcher’s personal involvement and relationships and this is particularly true as a deaf researcher into deaf theology which is a very small field. (Morris 2008; Lawrence 2009) who also adopt a participant observer method for their Religions 2017, 8, 232 3 of 11 theology argue that this relationship does not prevent critical reflection but in fact may be an essential component in the whole process of critical enquiry in its particular field. After outlining Deaf Liberation Theology for those unfamiliar with it (and engaging with a few critiques made since publication of the key text Deaf Liberation Theology (Lewis 2007)), this article intends to examine the impact of Deaf Liberation Theology in promoting social justice in general and justice for deaf people in particular. Following the methodology of liberation theologies it will do so by looking at stories and experiences of Deaf Liberation Theology in practice from the deaf community in the past decade, especially my own experience and the experience of three other deaf women in positions of leadership within the church in the U.K. As the subjects of this discourse are female as well as deaf, some intersectional analysis will be attempted, although this is limited by the current paucity of research on intersectionality of disability or deafness and gender (or indeed intersectionality of deafness and anything as named by Kusters et al. (2017)). Finally, questions can be posed in terms of what we can learn from this experience, what needs to be done differently, where can we go next and how can we foster more activist orientated intersectional analysis in the field of deafness and disability and religion. One of the key principles of liberation theologies is positionality—the explicit identification of where are we speaking from. So I need to conclude this introduction by locating myself and the context of this article. I am a deaf BSL user (but with some hearing in infancy which was lost in childhood). I consider my first language to be written English as I acquired English as a native speaker (and can still speak and lipread English with some effort which has significance in the deaf world), and later acquired BSL to a high level of fluency so I now am effectively bilingual. I have been a priest in the Church of England for twenty years; after serving in a number of different roles I have settled in ministry with the deaf community, with my work both focusing on local churches in Liverpool (deaf people in parish churches and all people in sign language using congregations) and nationally in supporting the development of ministry in the deaf community. While I have some involvement in wider Church of England ministry (most significantly as a tutor on the local part time course training people for ordained and lay ministry) my commitment to grassroots ministry with the deaf community is a key component in my freelance work as a liberation theologian. Phan (2000) identifies, ‘doing’ liberation, by being involved in and committed to the ongoing struggle for liberation, inclusion and social justice (which are related, although perhaps not identical, as Russell (2015) distinguishes between the three) as an essential prerequisite for ‘doing’ liberation theology. In addition to exposing me to a huge range of stories and experiences this commitment gives me, as a theologian and participant observer, the opportunity on a daily basis to see how my theological perspective impacts on the life of deaf people, not only in the church, but in general. Phan’s (Phan 2000) assertion that “theology is never neutral” (which is repeated time and again by other theologians of liberation—see (Lewis 2007) for discussion of this point) and that the theologian is never socially uncommitted poses the question of which (whose) cause the theology is supporting. I choose to support the cause of social justice for deaf people, not just as a political decision, but as a decision that is driven by my faith whereby Christianity is good news for the—however the poor are defined. However I am a Christian priest, and while I will cheerfully push the boundaries of Christian theology, I continue to engage with theology as a practitioner within an institution and as a follower of the way of Christ and that perspective also influences my theology. It is also key for my commitment to Liberation Theology that I am deaf myself. While I am privileged by comparison with many deaf people—as a bilingual highly educated professional—I still live with many of the issues of belonging to a minority group that is vulnerable both to the prevailing political ideology which (in 2017) limits the support I rely on to function effectively when relating to the hearing Church and also to the everyday frustrations around being deaf in a hearing world. It is one of the issues around being deaf (or indeed disabled) in theology that we need to assert the need for deaf or disabled theology to be done by deaf or disabled people themselves. So much theology relating to deaf issues is about deaf people by hearing people or professionals. This is discussed in (Lewis 2007) Religions 2017, 8, 232 4 of 11 but it is still an issue both in the wider world of deaf studies (Kusters et al. 2017) and theology. Much of the work published referencing deaf people in theology in the past decade (e.g., Morris 2008; Lawrence 2009, 2013; Meller 2011) has been by hearing people who may identify themselves as such, but who are still writing from the perspective of outsiders. However there has been some recent theological work produced by deaf people. Shrine (2011) a deaf priest published a short booklet on ministry with the deaf community as part of the influential Grove pastoral booklets series. He also edited conference proceedings from the second ‘Deaf Perspectives in Theology’ conference held in 2013—and unlike the first conference of this name, all presenters were deaf themselves (Shrine 2016a) Myatt, a deaf Baptist minister, produced a BA thesis on deaf theology (Myatt 2015). Finally, from the USA, VanGilder (2012) a deaf academic and Methodist minister uses Liberation Theology principles to explore doing theology with deaf women in Zimbabwe, bringing a Global South perspective into the discussion. As I will discuss in this article, some of this new deaf theology is explicitly influenced by Deaf Liberation Theology, others the influence is more implicit but still traceable. And the more deaf (and disabled) people doing (and publishing in whatever form) theology, the more social justice—in the sense of widening participation, action, inclusion in all levels of society to those previously excluded (Russell 2015)—is being served. Not all the sources I quote in this article are deaf—many are hearing liberation theologians from a variety of racial and social backgrounds, genders and orientations—but I rarely use the work of hearing people writing about the deaf church (cf Lewis 2007)—and if I do so I identify them as such. Myatt, Bloomfield and Silo—the three women whose journeys, in addition to my own, provide the source matter for reflection on how Deaf Liberation Theology promotes social justice—are of course deaf BSL users. All four of us are white and live in the UK. Two of us are Church of England priests; one is a Baptist minister, and the other a lay woman whose Christian journey has not been bounded by a single denomination. 2. Deaf Liberation Theology—What Is It? Phan (2000) suggests that the development of liberation theology was the most influential movement (in the church) of the twentieth century. He asserts that liberation theology is better referred to as liberation theologies—a diverse and wide ranging collection of theologies with differing emphases, viewpoints, analyses and aims depending on social context (including, but not restricted to, feminist theology, womanist theology, mujerista theology (Latina women’s liberation theology), Queer theology, African American theology, Latin American theology, minjung theology (from the struggle of South Korean Christians for social justice), disability theology and deaf theology) but sharing similarities of methodology. He argues that this shared methodology includes three elements: analytical, hermeneutical and practical mediations of epistemology. So Deaf Liberation Theology is one of the new methods of doing theology in which “liberation is a kind of horizon against which the whole Christian faith is interpreted” (Phan 2000) with ‘liberation’ being defined differently according to context. VanGilder (2012) and also in (Lewis and VanGilder 2017) points out that often ‘liberation’ is taken to mean liberation from socio-economic oppression as a result of poverty, gender, ethnicity or social class for example whereas deaf people experience oppression more as a result of the medical view of hearing loss and the perception of us as unable to do certain tasks. In Deaf Liberation Theology (Lewis 2007) Lewis analyses deaf experiences in the light of the often well meaning ‘benevolent oppression’ of deaf people by welfare workers, teachers, clergy and others using concepts from deaf studies. This analysis is consistent with liberation theologies use of social sciences as a ‘dialogue partner’ (Phan 2000) to identify the roots of oppression (and therefore “‘de-ideologise’ the customary interpretation of Christian faith and its language that hide and legitimate oppression or social injustice”). Unlike many other liberation theologies, Deaf Liberation Theology does not make particularly strong use of Marxist tools of social analysis, although Ladd (2003) who provides much of the analytical framework of deaf studies makes use of Marxist theories of class to understand different strands within the deaf community, but focusses on the insights of disability Religions 2017, 8, 232 5 of 11 theory around the ‘medical’ and ‘social’ models and the understanding of deaf people as a linguistic minority of people who use sign language. Morris (2008) is one of many theologians who assume that liberation theology is by definition tied to Marxist analysis (and therefore use this as a critique of its limitations with respect to deaf people for example), however Phan (2000) argues that Marxism is merely one of many tools of social analysis used by liberation theologies and is therefore not essential. Another key part of the methodology of liberation theologies shown by Deaf Liberation Theology is the use of what Phan (2000) calls “stories from the underside of history” or accounts from forgotten and oppressed people “by which the stimulus for social transformation may be nourished and sustained” (p. 49). Deaf Liberation Theology (Lewis 2007) included a chapter on the history of the Deaf Church in the UK challenging the perception that ministry among deaf people was a mercy-driven hearing initiative and showing how deaf people started their own churches and often challenged the dominance of hearing ways back in 19th century UK as well as including many stories and experiences from deaf life in society and the church. One criticism that has been leveled at the use of liberation theology as a structure for doing deaf theology is that it is a ‘hearing thing imposed on deaf people’ (see for example (Green 2012); although Green is a hearing minister working with the deaf community his arguments for what he calls deaf eye or deaf culture ministry, an analysis of how power operates in the deaf church and the need for deaf ‘philosophers’ (his word for theologians) are constructive and insightful but he does not seem to go the whole way of accepting the need for a total transformation of the unjust structures of church and society—which would challenge his position in the deaf church). However the historical researches (Lewis 2007) demonstrate a nascent liberation theology in operation among those early deaf Christians and certainly show a mindset that valued deaf experience, sign language and looked to the biblical imperative to challenge injustice. The theoretical framework of liberation theology may be ‘hearing’ in origin, but the roots of this understanding of deaf experience and the consequent hermeneutic of bible and Christian tradition are definitely there in the deaf community itself. Having clarified the roots of oppression (which helps to define the meaning of liberation in social, mental, emotional, psychological and spiritual terms and outlines what social justice might look like from a deaf perspective) Deaf Liberation Theology proceeds to use the “hermeneutical circle” (Segundo 1976) to look at the bible and Christian tradition in the light of these insights, and in particular to apply an ‘exegesis of suspicion’ to produce a new hermeneutic—a new way of interpreting the bible and tradition. Deaf Liberation Theology looks at many hermeneutical questions, for example, how deaf people are referred to in the bible, how deaf people might relate to Jesus Christ and uses sermons and articles and poems by deaf people (both historic and contemporary) to argue for a new hermeneutic that affirms (against the hegemonic discourse) that deaf people and sign language are created equal to hearing people and spoken language by God, and that they can fully engage and participate in every level of the Christian faith and the Christian church and that access to and inclusion in the Christian church and faith and working for full justice for deaf people in society isn’t an added on luxury for mainstream churches who have the time and inclination but an integral part of what it means to be a follower of the way of Christ. The third essential aspect of the methodology of liberation theologies, growing out of the analysis and hermeneutics is activism: a practical commitment to transform an unjust world through the theology that is done. In Deaf Liberation Theology the focus so far has been on working to transform the church, to challenge the structures, beliefs and practices that oppress deaf people, to affirm distinctive deaf ways of following Christ and in doing so empower deaf people to take their part in working for greater social justice in the world. 3. Impact of Deaf Liberation Theology on Social Justice and Deaf Women in the Church Whenever we talk about social justice in a faith context we often have in mind ‘the church’ (or another faith community) helping disadvantaged people in their local community, for example running a food bank, doing up the church hall to be a community space (often the only remaining Religions 2017, 8, 232 6 of 11 community space in deprived areas), and running programmes of welcome, drop ins for all sorts of vulnerable people (those with mental health issues or sex for example), offering advice and support in areas like debt management or education. Russell (2015) details many such projects. Often these projects have been transformational and promoted liberation, inclusion and social justice in a variety of ways. Sometimes the people who are ‘giving’ time and money to these projects to help others find themselves engaging in dialogue with the ‘receivers’ and being challenged and changed, and sometimes the ‘receivers’ of the projects aims take up the chance to become involved as volunteers themselves, and gain skills and ownership of the projects. These life changing dialogues and movements are examples of what Morisy (1997) calls “glimpses of the new world to which he (God) invites us to contribute and this is the special experience of the church of the poor” (p. 120). Morisy and Russell are both very clear that this kind of two way transforming dialogue and movement is an important part of what faith groups working for social justice are about, in part to encourage a continual questioning of what is being done so that the ‘help’ being offered isn’t simply collaborating with and perpetuating the unjust structures that cause the issues in the first place. The ‘benevolent oppression’ of the church and social work analysed in Deaf Liberation Theology (Lewis 2007) largely arises from welfare policies and processes that divide people firmly into ‘givers’ and ‘receivers’ and do not challenge or change structures so that ‘receivers’ can be truly empowered to participate in decision making processes and ultimately take on leadership themselves. However, what Morisy doesn’t mention and what Russell refers to only in passing is what do we do about the injustices in the structures of the church? How can we look outward to transform the world without ‘putting our own house in order’ (Forrester 1989 quoted in (Russell 2015)). The 1985 report by the Church of England Faith in the City (Archbishop of Canterbury’s Commission on Urban Priority Areas 1985) called for a dual focus in work for social justice by the church—it not only needed to challenge the public policy that was creating huge issues in what were then called Urban Priority Areas (UPAs, now referred to as Areas of Multiple Deprivation, AMDs) the church also needed to look at its own life and whatever was alienating people in UPAs from the Church of England. Deaf Liberation Theology (Lewis 2007), by contrast, recognizes that need to challenge and change the structures and the theological understanding of the church so that deaf people (and disabled people, and all other minorities) can not only gain access to all that the church offers its people, but also become empowered to truly participate in all areas of church life, free to follow Gods call for their lives, free to use their skills and interests in the service of God and others, free to develop as disciples and leaders of the people of God. Shrine (2016b) in discussing what true ‘inclusion’ of deaf people in the hearing world might mean concludes that it has to mean justice within the church as well— a challenging and changing of structures and assumptions so that the visual world of deaf people is not swamped by the aural world of hearing people but that both groups accept that full equality is something they need to work at. He suggests social justice for deaf people means full access to the world around them—and that this means changing society to enable deaf people to be fully participant members (as opposed to changing deaf people to fit into society) and that the church can be a place where this equality and justice is modelled. However, to work for this social justice in the church requires both deaf people and hearing people recognizing their essential equality and working to together to identify and dismantle the barriers to inclusion. It is not something that one or the other groups can do alone. This is very similar to the vision of gender equality in society and the church that Baker (2014) argues for—a vision that recognizes the differences and diversity among men and women, but defines equality as the belief that all people have the same value, regardless of any other defining characteristic such as gender, ethnicity, sexuality, disability or age—and an equal society is where everyone is able to flourish. One of the barriers to reaching this aim of true equality, true social justice is that many deaf people have been so disempowered over the years that they have come to accept the dominant narrative that ‘deaf can’t’ do things; that deaf people need to be dependent on hearing people, because hearing people do things better and that sign language is always inferior to spoken language and that there are Religions 2017, 8, 232 7 of 11 no deaf leaders and no deaf history (Shrine 2016b) One interesting example of how embedded this narrative is among the deaf community from my own ministry has been the reaction to me as a deaf priest; the first deaf priest many of the Liverpool Deaf community had encountered. Some refused to believe I was ‘properly’ deaf because in their minds deaf people don’t have the ability to train as priests, others who accepted I was properly deaf thought I was somehow a lower class of priest and given the choice they want a hearing priest with interpreter so that funerals and christenings are done ‘properly’. The ‘deaf can’t’ narrative is sometimes so strong that it stops deaf people from seeing that I can be both deaf and a priest and do the job equally well as any hearing person. Striving for true social justice these embedded narratives among deaf people have to be (gently) challenged so that deaf people can start to see that they can be equal to any hearing person. However other deaf people have been excited by having a deaf priest—and appreciated the leading of worship by ‘one of their own’—not just worship that is accessible through sign language but worship that is rooted in the life and experience of being deaf (explicitly or implicitly) and which lifts that up to God as a fit subject for prayer and celebration. And the more deaf leaders we have in the church, the more deaf people will have that experience of seeing that ‘deaf can’—and if ‘deaf can’, maybe they can too. So one aspect of the work of Deaf Liberation Theology in the Christian Church has been this focus on trying to encourage and grow and support deaf people into leadership within the church—sometimes as trained and licensed ministers, but other times simply bringing deaf people to the front of their own churches (both sign language using churches, and hearing churches with interpreted services) as much as possible, enabling and empowering participation and decision making by deaf people at many different levels. A new generation of deaf ministry is growing, where the deaf people take the lead, and work in equal partnership with hearing people across the whole church rather than as assistants to hearing people. This development is happening mostly at local level at present, and mostly among sign language using congregations (separate ‘deaf churches’ originating from the ‘deaf centres’ which for many years provided all welfare support and community meeting place for their local deaf communities) but the hope is there that the confidence and skills thus developed can be used in hearing churches at a wider level as well and truly bring about a more just church. (Kusters 2017) talks about the importance of deaf teachers as role models for deaf children in developing their confidence, esteem, pride in being deaf, social and cultural capital and strategies for dealing with a non-signing world and generally preparing them for adulthood and providing an opportunity to increase social justice through deaf adults with the confidence to ask for it and work for it. Deaf adults can be role models for deaf children not only through what they say, but through the fact that they are the same (and as most deaf children have hearing parents they will not have had this experience at home)—a shared ontological basis of life that leads to a deep identification and connection. While the deaf adults I work with are long past their childhood, the ‘deaf same’ role model as a leader has a similar potential to develop their social and cultural capital and challenge their ‘deaf can’t’ mindset to become one of ‘deaf can’. Coleman (2010) writing from the perspective of a hearing Black woman leader suggests that the ‘7 deadly sins’ of women in leadership include such things as ‘limiting self-perceptions’, ‘inadequate personal vision’ and ‘colluding and not confronting’. These are all rooted in a lack of self-confidence and self-esteem, similar to the experience of deaf people, and she highlights the importance of role models and mentors as means to overcome these (and other issues). Kusters and Coleman agree with me from their different perspectives that these are not ‘problems’ or ‘failings’ of an individual, but arise from the social experience and construction of a minority community and therefore require communal, collaborative work and challenging the social narrative to overcome. Another key factor in developing the confidence and self-esteem of deaf people using Deaf Liberation Theology has been through the explicit use of shared deaf experience, deaf stories, visual-tactile culture in preaching, teaching and worship. Myatt (in a number of conversations) talks of how her first experience of culturally deaf worship had a huge impact on her. Not only could she fully understand what was being signed from the front (she had experience of attending BSL Religions 2017, 8, 232 8 of 11 interpreted accessible worship), she felt, for the first time, that she had an identity as a deaf person and that this identity was important to and valued by God and therefore to be valued by her as well. The act of worship that had such an impact on Myatt had been deliberately designed according to the values of Deaf Liberation Theology—celebrating deaf people, deaf culture, deaf heritage and sign language and for Myatt was part of an ongoing process of liberation at all levels from the effects of growing up deaf in a hearing world—she felt freed in physical terms (free to follow Gods call to ministry in the Baptist church), freed in emotional terms (with the growth in self-confidence and esteem based on learning to value deaf experience and BSL) and freed in spiritual terms (recognition of her full equality before God and learning to value herself as a deaf child of God). She also talks about how Deaf Liberation Theology has made a difference to her faith; helping her to understand and make sense of her struggles with her faith (related to worshipping in a hearing way in a hearing church all the time)—and in particular that she wasn’t alone and that there was hope that things could be different. Such a hope is key to inspire people to work for social justice—the hope that things can be different. The absolute key value of stories that include us was highlighted by Moges in her conference presentation based on her chapter in Innovations in Deaf Studies (Moges 2017). What the presentation in Sign Language bought out that is only hinted at in the written text was the emotional impact of discovering a book that covered two (Deaf and Queer) of her three intersecting identities (she is also Black). The implication that there are others like me, and there is hope came over strongly in her sign. Myatt’s experience of this deaf culture act of worship, with its impact, was the start of a ten year process of working out what this all meant for her in practice which turned out to be doing a number of courses (starting with a theology course taught in BSL—the ‘Chester Course’ which was significant for many of its graduates as a stepping stone into further theological training), gaining a degree in theology and being ordained as a minister in the Baptist church—their first deaf BSL using minister and who has a specific role to develop opportunities for deaf people in the Baptist churches which she does along the principles of Liberation Theology. Another interesting step along the way for her was when she used Deaf Liberation Theology principles and methodology to do her own theological research for her BA degree dissertation (Myatt 2015)—analyzing the stories of the deaf people she interviewed (about experiences of loss and how they were or were not supported to deal with them) she came to a series of realizations about her own experience in both social and theological terms that helped make sense of it and gave her more material to build up her own theology for the future—a theology that she puts into action on a regular basis. Myatt is someone who makes an explicit link to the impact of Deaf Liberation Theology on improving social justice; others might not accept the link, but who also testify to the importance of a strong sense of deaf identity and an awareness of deaf culture and deaf history as being significant in the development of their faith and associated development of the self-confidence and self-esteem that comes with a strong sense of deaf identity. Bloomfield (2016), a deaf BSL using priest, for example writes an account of her journey into the deaf community (as she was bought up orally in the hearing world like so many of her—and my—generation) and her discovery of the deaf community as a place of belonging that the hearing world could never be. This discovery helped increase her self-confidence and self-esteem and inspired her to work for more social justice for deaf people, encourage more deaf people to become leaders in the church or otherwise follow their calling from God using their gifts and skills. She doesn’t underestimate the challenges that face deaf people training in a hearing environment, but is able to encourage and support people from her own experience and belief through the ‘deaf same’ power of the role model as discussed above. Silo (2013) is another who writes of the importance of a strong deaf identity in enabling her to live well in a hearing world, and to work for a more just society. Her journey has been different to both Myatt and Bloomfield in that she attended Deaf Christian Fellowship (DCF) groups where the emphasis was on a more ‘evangelical’ type of Christian teaching, delivered through Sign Language and with a strong hearing English perception. However it was also a place where deaf leaders flourished, and where the worship allowed deaf culture and sign language to flourish and develop—a place of Religions 2017, 8, 232 9 of 11 contradictions. It was outside the church that she found her deaf identity—her ‘Deafhood’ (a term created by Ladd (2003) but not adopted much in the UK except in deaf studies academic circles) through her involvement with the National Union of the Deaf and in campaigning work as a deaf teacher of deaf children. Her key insight from her experience has been that “Deafhood alone cannot liberate us”: only Christ can liberate us fully, in body, mind and spirit. In following Christ we are inspired to work for justice, to actively promote ‘good news for the poor’ and Deafhood is an important and perhaps necessary part of this, but not sufficient alone. She actually has raised the question (and references (Green 2012; Ayres 2004)) whether Deafhood/deaf identity is compatible with the belief that our primary identity is in Christ and intends to explore this further. I look forward to her researching and writing in this area as it would be a real challenge to Deaf Liberation Theology which argues for the importance of a strong deaf identity as enabling and empowering a strong and authentic faith and identity in Christ and the self-confidence and self-esteem that encourages actively working for social justice. Developing and ordaining deaf people (male and female) as priests, ministers and lay leaders in the church is a strong challenge to the traditions of the church which in the UK (as well as elsewhere) has tended to follow the concept of the ‘officer class’ (white, male, middle and upper class) as being born to lead; it is also a strong challenge to the concept that ‘deaf people can’t lead’ (Lewis 2016). However theologically it actually picks up on the biblical tradition that God calls all sorts of people to preach, teach and lead in the church and in fact the primary requirement is that vocation rather than any other qualification. Paul in his first letter to the Corinthians emphasizes this when he says “Consider your own call, brothers and sisters: not many of you were wise by human standards, not many were powerful, not many were of noble birth. But God chose what is foolish in the world to shame the wise; God chose what is weak in the world to shame the strong; God chose what is low and despised in the world, things that are not, to reduce to nothing things that are, so that no one might boast in the presence of God.” (1 Corinthians 1:26–29 NRSV). One final thought for now—one of the interesting features of deaf ministry (in the UK at least) is that unlike almost all other ministries, many of the emerging leaders are female. Coleman (2010) highlights how the subject of women in leadership is frequently perceived from the vantage of one particular group of women, usually white and middle class, and assumes that all women leaders are monochrome. She briefly looks at how class, race and cultural background affect the experiences of women (and how assumptions are made about the impact of these differences that do not always reflect reality) and suggests that unlike the western stereotypes many African and Caribbean cultures raise black women to be more socially assertive than white women, and many South Asian women are raised to be ambitious and assertive (she instances the four female prime ministers of Sri Lanka, India, Bangladesh and Pakistan—two of whom predate any female heads of government in Western Europe). These examples hint at how race and gender can intersect in ways that are positive as well as negative. There has been no research on the intersectionality of deafness and gender (and little or nothing on the intersectionality of deafness and race or any other characteristic for that matter) (Kusters et al. 2017; Moges 2017) but I speculate that such research might show similar ways in which deaf women have successfully challenged perceptions of both gender and deafness to develop in leadership and promote social justice in this way. 4. Deaf Liberation Theology and Social Justice: What Have We Learned, What Comes Next? Deaf Liberation Theology (Lewis 2007) concluded with a call for the church to be a ‘liberating-shaped’ church and suggested some practical things that could be done for this to happen. I have tried to operate in these ways in my own ministry and have seen others adopt these principles as well (sometimes arriving at similar principles independently, sometimes more directly influenced by reading the book). And, as I have argued in this article, they do seem effective in promoting more social justice in the church, albeit slowly. Deaf people and the deaf church are, in places where Deaf Liberation Theology principles have been adopted, more visible to and more valued by the hearing church than they used to Religions 2017, 8, 232 10 of 11 be. We are growing a generation of new deaf leaders—ordained and lay people—who seek to actively promote and celebrate deaf identity, deaf history and sign language as part of what it means to follow Christ. In some ways this is nothing new—the biblical imperative for justice has been inspiring deaf Christians (and hearing Christians who work with them) to seek to improve social justice for Deaf people since the foundation of the Deaf church in 1830 (Lewis 2007). However for many, many years this was subordinate to the principle that deaf people primarily needed helping or healing, and that sign language was subordinate to English so the last ten years has seen real change within the church, not just in the Deaf church and what it does but also in the value the mainstream hearing church now has for deaf people in church. The hegemonic theological discourse has been challenged and changed as Deaf Liberation Theology called for in 2007. (Shrine 2016b) agrees that things have changed in a significant way in this period. There are still many issues to be sorted; in the Church of England not all dioceses value deaf people and sign language, not all deaf people have equal access to church and training, and not all deaf sign language using churches and congregations are places of liberation. But it is encouraging to trace in the stories I discuss above the spread of the ideas and principles of Deaf Liberation Theology and the growth of social justice in the church. So what’s next? To an extent more of the same is needed; in May 2017 I shared with a group of deaf Christians the stories of the foundation of the deaf church by deaf people and its challenge to the hearing church in the nineteenth century. For many of them this was the first time they’d encountered deaf church history told in this way and they were excited by it and encouraged by it—and perhaps even inspired to follow their example and challenge the hearing church norms they experienced as oppressively well meaning. For me this was an eye opening response—I thought this was well known information now, but it bought home to me the importance of continuing to develop and teach and spread Deaf Liberation Theology as a means of promoting social justice for deaf people within the church. But for Deaf Liberation Theology to be true to itself in promoting liberation it needs to be developed by a wide range of deaf people, from all sorts of backgrounds and experiences. Lewis and VanGilder (2017) explore ways of widening deaf participation in theology through the use of dialogue and stories and working collaboratively so that the gifts of deaf people with skills in English and academic theology and the gifts of deaf people with varying experiences and unarticulated theological reflections can be bought together to create new ways of doing theology that is more authentically deaf, and therefore more liberating, and leads to more action that promotes true social justice for deaf people. Conflicts of Interest: The author declares no conflict of interest. References Archbishop of Canterbury’s Commission on Urban Priority Areas. 1985. Faith in the City: A Call for Action by Church and Nation. London: Church House Publishing. Ayres, Bob. 2004. Deaf Diaspora: The Third Wave of Deaf Ministry. Lincoln: iUniverse, Inc. Baker, Jenny. 2014. Equals: Enjoying Gender Equality in All Areas of Life. London: SPCK. Bloomfield, Susan. 2016. Reflections on Empowerment by an Evangelist in the Deaf Community. In Deaf Perspectives II: Empowering Deaf Christians in Your Church. Southend-on-Sea: Go! Sign, pp. 37–41. Coleman, Kate. 2010. 7 Deadly Sins of Women in Leadership: Overcoming Self-Defeating Behaviour in Work and Ministry. Birmingam: Next Leadership. Green, Chip. 2012. Deaf Eye Ministry. Seattle: Amazon Direct Publishing. Kusters, Marieke. 2017. Intergenerational Responsiblity in Deaf Pedagogies. In Innovations in Deaf Studies: The Role of Deaf Scholars. Edited by Annelies Kusters, Maartje De Meulder and Dai O’Brien. Oxford: Oxford University Press, pp. 241–62. Kusters, Annelies, Maartje De Meulder, and Dai O’Brien. 2017. Innovations in Deaf Studies: Critically Mapping the Field. In Innovations in Deaf Studies: The Role of Deaf Scholars. Edited by Annelies Kusters, Maartje De Meulder and Dai O’Brien. Oxford: Oxford University Press, pp. 1–53. Ladd, Paddy. 2003. Understanding Deaf Culture: In Search of Deafhood. Clevedon: Multilingual Matters. Religions 2017, 8, 232 11 of 11 Lawrence, Louise J. 2009. The Word in Place: Reading the New Testament in Contemporary Contexts. London: SPCK. Lawrence, Louise J. 2013. Sense and Stigma in the Gospels: Depictions of Sensory-Disabled Characters. Oxford: Oxford University Press. Lewis, Hannah. 2007. Deaf Liberation Theology. Aldershot: Ashgate. Lewis, Hannah. 2016. Growing Deaf Leaders. In Deaf Perspectives II: Empowering Deaf Christians in Your Church. Edited by Bob Shrine. Southend-on-Sea: Go! Sign, pp. 18–29. Lewis, Hannah, and Kirk VanGilder. 2017. A Dialogue on Deaf Theology: Deaf Ontologies Seeking Theology. In Innovations in Deaf Studies: The Role of Deaf Scholars. Edited by Annelies Kusters, Maartje De Meulder and Dai O’Brien. Oxford: Oxford University Press, pp. 169–90. Meller, Gillian M. 2011. Believing, Belonging and Being Deaf: The Role of Religion in Deafhood. Ph.D. dissertation, University of Bristol, Bristol, UK. Unpublished doctoral dissertation. Moges, Rezenet. 2017. Cripping Deaf Studies and Deaf Literature: Deaf Queer Ontologies and Intersectionality. In Innovations in Deaf Studies: The Role of Deaf Scholars. Edited by Annelies Kusters, Maartje De Meulder and Dai O’Brien. Oxford: Oxford University Press, pp. 215–39. Morisy, Ann. 1997. Beyond the Good Samaritan: Community Ministry and Mission. London: Mowbray. Morris, Wayne. 2008. Theology without Words: Theology in the Deaf Community. Aldershot: Ashgate. Myatt, Susan. 2015. Grief and Loss in the Deaf Community. Bachelor’s thesis, University of Manchester, Manchester, UK. Unpublished BA dissertation. Petrella, Ivan. 2006. The Future of Liberation Theology: An Argument and Manifesto. London: SCM Press. Phan, Peter C. 2000. Method in Liberation Theologies. Theological Studies 61: 40–63. [CrossRef] Russell, Hilary. 2015. A Faithful Presence: Working Together for the Common Good. Norwich: SCM Press. Segundo, Juan Luis. 1976. The Liberation of Theology. Translated by John Drury. Maryknoll: Orbis. Shrine, Bob. 2011. The Church and the Deaf Community: A Liberation Perspective from a Linguistic-Cultural Minority. Cambridge: Grove Books, vol. P126. Bob Shrine, ed. 2016a. Deaf Perspectives II: Empowering Deaf Christians in Your Church. Southend-on-Sea: Go! Sign. Shrine, Bob. 2016b. Inclusion and empowerment: Unresolved issues for Deaf People in the Church. In Deaf Perspectives II: Empowering Deaf Christians in Your Church. Southend-on-Sea: Go! Sign, pp. 5–17. Silo, Janice. 2013. The Deaf Christian Fellowship (DCF) and Me: From DCF to Deafhood? In Deaf Perspectives II: Empowering Deaf Christians in Your Church. Southend-on-Sea: Go! Sign, pp. 47–49. Sutherland, Hilary, and Katherine D. Rogers. 2014. The Hidden Gain: A New Lens of Research with d/Deaf Children and Adults. In Deaf Gain: Raising the Stakes for Human Diversity. Edited by H-Dirksen L. Bauman and Joseph J. Murray. Minneapolis: Universirt of Minnesota Press, pp. 269–84. Thompson, Judith. 2008. With Stephen Pattison and Ross Thompson. In SCM Study Guide to Theological Reflection. London: SCM Press. VanGilder, Kirk. 2012. Making Sadza with Deaf Zimbabwean Women: A Missiological Reorientation of Practical Theological Method. Gottingen: Vandenhoeck & Ruprecht. © 2017 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). http://dx.doi.org/10.1177/004056390006100103 http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Introduction Deaf Liberation Theology—What Is It? Impact of Deaf Liberation Theology on Social Justice and Deaf Women in the Church Deaf Liberation Theology and Social Justice: What Have We Learned, What Comes Next? 
work_sbrfbi4cybff3bxcfus5ukyavi	----	Journal of Shi‘a Islamic Studies Winter 2013 ∙ Volume VI ∙ Number 1 Islamic College, London, UK Contents Articles Imam ‘Ali’s Theory of Justice Revisited ........................................................ 5 Ali Paya The Establishment of the Office of the Shurtah during the Caliphate of ‘Ali ibn Abi Talib ..................................................................... 31 Alireza Ashtari Tafreshi, Ali Bayat & Fatemeh Ahmadvand The Shi‘a of Baghdad at the time of the ‘Abbasid Caliphs and the Seljuq Sultanate (447-575 AH) .......................................................... 53 Mohammad Taher Ya’ghoubi & Asghar Montazerolghaem Beyond the Karbala Paradigm: Rethinking Revolution and Redemption in Twelver Shi‘a Mourning Rituals ....................................... 75 Edith Szanto Book Reviews A Code of Conduct: A Treatise on the Etiquette of the Fatimid Ismaili Mission. A critical edition of the Arabic text and English translation of AÎmad b. IbrÁhÐm al-NaysÁburÐ’s al-RisÁla al-mÙjaza al-kÁfiya fÐ ÁdÁb al-duÝÁt ed. and trans. by Verena Klemm and Paul Walker, 2011 ......................................................... 93 Sumaiya A. Hamdani The Transmission and Dynamics of the Textual Sources of Islam: Essays in Honour of Harald Motzki ed. Nicolet Boekhoff-van der Voort, Kees Versteegh, and Joas Wagemakers, 2011 ............................ 98 Andrew Rippin Faharis al-Shi‘ah by Mahdi Khuddamiyan al-Arani, 1431 AH/2010. .........................................................................................................102 Karim Douglas Crow City of Knowledge in Twentieth Century Iran: Shiraz, history and poetry by Setrag Manoukian, 2012 ....................................................... 109 Alessandro Cancian Diwan al-Shi‘r al-Farsi (al-juz’ al-awwal, al-qarn al-rabi‘ – al-tasi‘) by Muhammad Sadiq Muhammad (al-Karbasi), 2011 ................................................................................................................... 115 Mohammad E. Mesbahi & Mohammad M. Baghi Book Notes .................................................................................................. 119 Transliteration ........................................................................................... 125 Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 5 Imam ‘Ali’s Theory of Justice Revisited A L I P A Y A National Research Institute for Science Policy, Iran Department of Politics and International Relations, University of Westminster, UK The Islamic College, London, UK alipaya@hotmail.com Translated by Hamid Tehrani ABSTRACT: Justice is a topic which many thinkers in the East as well as the West have expressed diverse opinions about since antiquity. The differences between these views, as far as their belonging to the old or modern worlds are concerned, are such that subjecting them to even a cursory examination would suffice to reveal whether their authors are among the inhabitants of the modern world or the old world. The central thesis of this paper is that Imam ‘Ali’s views on justice have interesting conceptual capacities which liken them to modern doctrines of justice despite the fact that the author of those views was living in a pre-modern world and therefore his views should, of necessity, reflect his own time and place. The paper tries to show that the essence of Imam ‘Ali’s views on justice resembles the core of the ideas of some modern realist and rationalist philosophers. The importance of this point lies in the fact that it would provide, among other things, a strong argument for the objectivity of justice and against the views of those who regard it as a social construct and relative to differing social norms. In order to substantiate the main claim of the paper, the views of four prominent philosophers from antiquity and modern times are compared with each other and with Imam ‘Ali’s views. The four philosophers in question are Plato, Aristotle, Popper, and Rawls. It will be argued, without falling into the trap of anachronism, that the views of Imam ‘Ali on justice are closer to the two modern thinkers than the two philosophers of antiquity whose ideas were dominant in ancient era. KEYWORDS: justice, modern world, realism, democracy, fairness mailto:alipaya@hotmail.com Imam ‘Ali’s Theory of Justice Revisited Ali Paya 6 Plato on justice 1 Justice is among the most fundamental virtues in any society; it is deemed as one of the main principles that contribute to the durability of any social order. 2 The insightful adage attributed to the Prophet Muhammad that a state/political regime can survive blasphemy but not injustice, highlights the pivotal role of justice in social relations. 3 Evidence of serious deliberations on the notion of justice can be found among all nations and cultures and can be traced back to antiquity. However, the views of thinkers on this ‘concept’ or ‘theoretical entity’ have undergone a sea-change in the course of time.4 The Greeks, who are famed as having been the first people to engage in systematic philosophical investigations (that is, well-structured second-order reflections on phenomena and affairs), considered justice as an attribute for everything. Justice was as much an adjective for describing a city as it was for evaluating human beings. In the Republic, Plato proposes a model for the introduction of justice in the city-state and then utilises the same model for characterising the just man.5 The model proposed by Plato presupposes the presence of three classes or groups of people in each city: the rulers (the guardians), the administrators (auxiliaries), and other citizens (such as soldiers and farmers). Each member of these three groups has his own virtues and functions. According to Plato, justice is realised when these members actualise their specific virtues and bring to fruition their special functions. A justice-based city-state, like an organic entity, can have harmonious growth only when justice is observed in all of its constituent parts. Failing to observe this harmonious relationship (based on the order that Plato defines) is tantamount to abandoning justice.6 In the Republic, Plato presents different aspects of his views on justice through a dialogue between Socrates and a number of his disciples, and some of the sophists such as Thrasymachus. Contemplation on the dialectical process that Plato utilises in the dialogues between Socrates and his interlocutors reveals many points regarding the Platonic idea of justice and his approach to this concept. In the discussion on justice, Plato – who is presenting his views through Socrates’ words – follows the routine Socratic method to broach different layers of meaning for the concept of justice. Then through providing counter-examples, Plato shows the inaccuracy of each of the proposed definitions and moves on to the next definition. Eventually he defines justice on the basis of what is just or fair for the city-state. A city-state whose system is just has the Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 7 highest level of benefit and expedience for the best government. In a just society, hierarchical order between various classes exists and is willingly respected and preserved by all members of the society. A just individual too is defined on the basis of such a system. Such an individual is the one whose ‘internal constitution mirrors that of a just state’: each and every constituent part of a just person’s soul and body remains in its own place and helps to preserve the overall order of the of the whole.7 In society too, a just person occupies his specific place and respects the hierarchical social order. To back his argument for his particular conception of justice, Plato utilises a ‘noble lie’ (or a ‘kingly deception’) and elevates the discussion to a cosmic-ontic level: God has made the essence of those who are able to rule from gold, that of the warriors from silver, and that of the rest of the classes from iron and copper-brass. Amalgamation of these metals results in the destruction of the city-state. In the third book of the Republic, in the course of a discussion between Socrates and Glaucon over whether the administrators (auxiliaries) should be chosen to govern the society or whether the guardians are better suited for this task, Plato explains the noble lie in the following manner: ‘Very well, then,’ I said. ‘What is the next question we have to decide? Isn’t it which of these people are to rule, and which be ruled?’ […] ‘Unquestionably.’ ‘Then we must select from the guardians the kind of men who on examination strike us most strongly, their whole lives through, as being utterly determined to do what is in the city’s interest, and refusing to act in any way against its interest. […] From our children, from our young and grown men, the one who under constant testing emerges as pure is the one who should be appointed as a ruler and guardian of our city.’ […] ‘I think my views are pretty much the same as yours,’ he said. ‘In that case, aren’t they really the people who can most accurately, be called full guardians – making sure friends within do not want to harm it, and enemies without are not able to harm it? The young people whom we have been calling guardians up to now we can call auxiliaries, the defenders of rulers’ beliefs.’ Imam ‘Ali’s Theory of Justice Revisited Ali Paya 8 ‘I agree.’ ‘In that case,’ I said, ‘how can we contrive to use one of those necessary falsehoods we were talking about a little while back? We want one single, grand lie which will be believed by everybody – including the rulers, ideally, but failing that the rest of the city.’ ‘What kind of thing do you mean?’ ‘A very familiar story, of Phoenician origin. It has happened in the past, in several places. So the poets tell us, and they have found believers. But it has not happened in our time, and I don’t even know if it could happen. People would take a lot of persuading.’ ‘You seem a bit reluctant to tell your story,’ he said. ‘With good reason – as you will see when I do tell you.’ ‘Don’t worry,’ he said. ‘Tell it.’ ‘Very well. I will. Though I don’t know how I shall have the nerve, or find the right words. I have to try and persuade first of all the rulers themselves and the soldiers, and then the rest of the city, that the entire upbringing and education we gave them, their whole experience of it happening to them, was after all merely a dream, something they imagined, and that in reality they spent that time being formed and raised deep within the earth – themselves, their weapons and the rest of the equipment which was made for them. When the process of making them was complete, the earth their mother released them, and now it is their duty to be responsible for defending the country in which they live against any attack – just as they would defend their mother or nurse – and to regard the rest of the citizens as their brothers, born from the earth.’ ‘No wonder you were so embarrassed about telling us your lie.’ ‘Yes, I had good reason,’ I said. ‘But you must listen to the second half of the story as well. “You are all brothers,” our story will tell them, “all of you in the city. But when god made you, he used a mixture of gold in the creation of those of you who were fit to be rulers, which is why they are the Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 9 most valuable. He used silver for those who were to be auxiliaries, and iron and bronze for the farmers and the rest of the skilled workers. Most of your time you will father children of the same type as yourselves, but because you are all related, occasionally a silver child may be born from a golden parent, or a golden child from a silver parent, and likewise any type from any other type. The first and most important instruction god gives the rulers is that the thing they should be the best guardians of, the thing they should keep the most careful eye on, is the compound of these metals in the souls of the children. If their own child is born with a mixture of bronze or iron in him, they must feel no kind of pity for him, but give him the position in society his nature deserves, driving him out to join the skilled workers or farmers. On the other hand, any children from those groups born with a mixture of gold or silver should be given recognition, and promoted either to the position of guardian or to that of auxiliary. There is a prophecy, god tells them, that the end of the city will come when iron or bronze becomes its guardian.” Well, that’s the story. Can you think of any possible way of getting people to believe it?’ ‘No,’ he said. ‘Not the actual people you tell it to. But their children might, and their children after them, and the rest of the population in later generations.’8 Popper’s criticism of Plato Notwithstanding Plato’s lofty status in the history of philosophy, one cannot help but shudder with fear when reading this passage. The Platonic perspective on politics and his theory of justice carries with it the seeds of political fascism, and rational ‘justification’ for racism and even eugenics. While it has not been appreciated by a number of writers, what Karl Popper, the renowned Austro-British philosopher, has argued in criticising the frightening consequences of Plato’s political philosophy clearly shows the intellectual depth of the Viennese philosopher and his insightful analysis of an influential, and potentially very dangerous, system of political thought. In his highly influential Open Society and Its Enemies, Popper clearly and meticulously exposes the undesirable consequences of Plato’s political viewpoints including opposition to Imam ‘Ali’s Theory of Justice Revisited Ali Paya 10 democracy,9 promotion of utopianism, consolidation of a closed society, and providing justification for the policy of eugenics. As for the Platonic perspective on justice, Popper shows, in a section called ‘Totalitarian Justice’, how Plato developed a theory of justice that was at odds with people’s intuitive perception of ‘justice’. According to Popper, in Plato’s theory, many of the positive aspects of justice, which are better understood in the modern world, 10 are either ignored or suppressed.11 Popper explains that in modern times a better understanding of justice and its capacities has become possible. For those who belong to the modern world and subscribe to a humanitarian outlook, justice means: (a) an equal distribution of the burden of citizenship, i.e. of those limitations of freedom which are necessary in social life; (b) equal treatment of the citizens before the law, provided, of course, that (c) the laws show neither favour nor disfavour towards individual citizens or groups or classes; (d) impartiality of the courts of justice; and (e) an equal share in the advantages (and not only in the burden) which membership of the state may offer to its citizens. 12 Platonic justice, however, is quintessentially opposed to such perspective because it is based on an apartheid system of citizenship (a caste system). In the Platonic society special privileges are considered for certain individuals and the citizens are divided into first, second, and third class categories. Plato insists on persuading the citizens, through propaganda and deception, that this discrimination is pre- determined and that Heaven has thus ordained it and it is not possible to change it. In this manner, in Plato’s political system any attempt to change one’s fate, and struggle against inequality, is deemed an improper and inappropriate activity and an endeavour in vain to alter an immutable order. But political considerations aside, from an epistemological point of view, it can be pointed out that, according to Plato, justice is a construct of the elite and not an objective value. The elite can, and indeed must, turn their own narrative of justice into a comprehensive social fact through propaganda, and even deception and myth. This perspective, as will be noted later, has similarities with the views of the postmodern writers, 13 but it is in sharp contrast with the views of critical rationalists.14 Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 11 Aristotle’s theory of justice Another influential theory of justice in antiquity, comparable to that of Plato, was the theory of his disciple, Aristotle. Like his teacher, Aristotle did not have any interest in democracy. He too maintained that human beings did not all enjoy the same level of humanity. Slaves were not even considered as human beings but were viewed as ‘animated tools’.15 Women too enjoyed only half of the human rights and citizenship rights accorded to men. Justice’s full functions could only be exercised among free citizens. Workers and craftsmen would not be considered as citizens. Only citizens (i.e. the rulers and landowners) had the right to vote and participate in the political process.16 Later on we will discuss why the philosophers’ view on democracy is closely connected to their theory of justice and why there is a close relationship between justice and democracy. Although various aspects of Aristotle’s philosophy, including his theory of justice, are heavily influenced by Plato’s views, the fact remains that Aristotle has somewhat tempered some of Plato’s rather extreme views and, like other areas of his philosophical system, has brought the Platonic ideas on justice from Heaven to earth. Aristotle discusses the notion of justice in some of his writings including, at some length, in the fifth chapter of Nicomachean Ethics.17 There he not only explains the general conception of justice, but also discusses some more specific theories of justice, such as distributive justice, corrective justice, political justice and describes the difference between natural justice and legislative justice. But the main guiding principle for Aristotle in his discussion of justice is the famous doctrine of the ‘mean’.18 Aristotle writes: Justice is a kind of mean, but not in the same way as other virtues, but because it relates to an intermediate amount, while injustice relates to the extremes. And justice is that in virtue of which the just man is said to be a doer, by choice, of that which is just.19 As Lloyd has stated, Aristotle’s doctrine of the mean was influenced, for a large part, by the prevalent medical and physiological views in Greece, according to which healthiness in the body and the soul depended upon some sort of balance between the four humours (phlegm, yellow bile, black bile, and blood) and their four qualities Imam ‘Ali’s Theory of Justice Revisited Ali Paya 12 (cold and moist, cold and dry, warm and dry, and warm and moist). In introducing his own doctrine of the mean, Aristotle himself uses two analogies – one related to art and crafts, and the other to medicine.20 The doctrine of the mean has received many criticisms. Among these criticisms, one of the most important states that this theory is vague and that it cannot provide an objective evaluation because its limits are not clear and it is subject to the vagaries of individual assessment. But aside from these critiques and other practical limitations of Aristotle’s theory of justice, here too, just as in the case of Plato, one can highlight those epistemic limitations of this theory which would expose its attachment to the ancient world. Of course, it is possible to find some similarities between these ancient perspectives with some of the viewpoints that have been introduced in the modern era. These viewpoints, notwithstanding their introduction in modern era, are at loggerheads with a rationalist modernity. 21 The epistemic limitations of Aristotle’s viewpoint are rooted in his linguistic essentialism. Aristotle was of the view that one can reach the ‘essence’ of things through comprehensive and proper definitions. But this linguistic essentialism, as critical rationalists have shown, is sterile and does not provide an insight into the affairs of the world.22 I have chosen Plato’s and Aristotle’s theories of justice as two important and typical views of antiquity. One can also cite the views other thinkers of the classic era with regard to the notion of justice which bear resemblance to the theses of the two Greek philosophers. For instance, one can examine the views of Muslim philosophers on justice. The ideas of Plato and Aristotle, as we know, had influenced the views of many of Muslim thinkers, whether philosophers, theologians, jurists or mystics. But the aim of this short paper is not to evaluate the evolution of the views of different Muslim thinkers with regard to the notion of justice. Other researchers have attended to this topic.23 A case in point is ‘Ali Akbar Alikhani who, at the end of a discussion on the viewpoints of earlier and later Muslim philosophers, writes, rather pessimistically: On the whole it can be said that most of the consensus reached by earlier Muslim scholars on the idea of justice is achieved in the context of the discussion of the four types of virtues, namely, wisdom, bravery, chastity and justice. Such discussions concerning virtues are rooted in Greek thought. Other topics [in the works of earlier Muslim philosophers concerning the notion of justice] are either so similar that they cannot be separately classified and hence all of them Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 13 have to be viewed as belonging to the same category, or they are so different that one cannot locate a common denominator between them or view them as complementing one another. Moreover, in the arena of political philosophy no coherent, well-developed and scholarly theory, in its specialised sense, can be found in their works. […] Later generations of Muslim scholars have, each in their own way and from their own perspective, discussed the idea of justice but we cannot find any thinker in the Islamic world who has discussed the notion of justice in a comprehensive and specialised way […].24 Popper’s and Rawls’s theories of justice In the West, however, with the onset of modernity, new paradigms and intellectual systems emerged; and diverse topics, including the crucial topic of ‘justice’, were evaluated comprehensively from new angles. In the course of such explorations, many interesting views emerged concerning these topics, in particular the notion of justice. 25 In this paper, from among different intellectual approaches to the concept of justice, I have chosen the views of two eminent philosophers, Karl Popper and John Rawls, as the main points of reference for critical assessment of various theses under consideration and further development of my main argument. Popper is a critical rationalist, and John Rawls also, with some qualifications, could be included in this camp. 26 Critical rationalist philosophers (who are also realist) maintain that justice is an objective theoretical entity that has emerged in the sphere of values (part of what Popper calls World 3) 27 simultaneous with the emergence of human communities, and is concomitantly evolving along with the evolution of human societies and is unfolding new aspects of its objective values. As man’s cognitive powers increase, his chances of discovering more aspects of justice (unknown to the previous generations) increase.28 In order to identify different aspects of justice as an objective value, we need to utilise the tools, technics, and technologies which can help extend and enhance our cognitive abilities. In the ancient world, religious teachings as well as the lifestyle they prescribed were among the tools that would assist people to better understand justice and its capacities. In the modern world, in addition to the tools inherited from the ancient world, human beings have succeeded in constructing a Imam ‘Ali’s Theory of Justice Revisited Ali Paya 14 powerful tool for exploring justice’s capacities. In the same manner that a telescope’s main function is to help us gain knowledge about the stars, the function of this new tool is to aid modern man to gain more detailed knowledge of vast and diverse potentials of justice. This modern tool is called ‘democracy’ which, as a constantly improving technology, has remarkably lent a hand to modern man to discover new aspects of justice.29 One of the most effective and successful types of democracy is liberal democracy. Liberalism, as a theoretical framework and as a tool for social change, like other similar modern or traditional frameworks, has been subject to many changes and transformations since its inception (circa seventeenth century). Of various types of democracy, this paper draws on the models proposed by Popper and Rawls. These two thinkers have introduced profound insights with regard to the concept of justice and have paid attention to aspects of this theoretical entity that have been very helpful both from an epistemic as well as a practical standpoint. The views of these two liberal philosophers of the twentieth century have recently been the topic of a comparative study by Alan Boyer whose views have been incorporated in this article.30 As a political philosopher, Rawls has mainly been preoccupied with issues in the field of political philosophy, and his favourite topic in this field has been justice on which he has written an important book: A Theory of Justice.31 Popper, however, did not write a treatise specifically devoted to justice. His views on this topic are scattered in his different books, including Open Society and Its Enemies which is his major contribution to the field of political philosophy. Despite a good deal of similarity between the views of the two philosophers with regard to the notion of justice, as Boyer’s analysis shows and is also evident from the research projects of these two like- minded philosophers, Popper’s views on justice are more effective and fruitful than those of Rawls in explaining different conceptual and theoretical aspects of justice. If Rawls had gained a more accurate grasp of Popper’s views, which were extremely fertile due to Popper’s mastery of different theoretical fields including philosophy, philosophy of science, ethics, social science, history and classics, he could have further enriched his research project, which was in its own turn innovative and epoch-making.32 We have briefly referred to Popper’s views on justice. Rawls fully approves of these views. For both philosophers, justice is essentially a Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 15 rejection of arbitrary privileges and establishing an appropriate share and equilibrium among competing claims within the structure of a social practice. 33 Both philosophers emphasise the role of freedom, reason-based and argument-based approaches, ethical attitudes and the existence of a ‘life plan’ for individuals; constructive and supportive (though not too intrusive) actions by the state; utilisation of democracy as a tool; and the importance of continually evolving institutions for promotion and realisation of justice. Both emphasise the struggle against oppression; efforts towards reducing human suffering instead of a utilitarian approach which aims at maximising the benefit for the maximum number of individuals; avoidance of utopianism; and utilising gradual, step-by-step methods, for improving the lot of humankind. According to the views of these two liberal philosophers, justice, as was mentioned above, is not a social construct, at the beck and call of powerful classes. Both philosophers view justice as a real entity which, like other real entities, has a causal power to influence different fields of human interaction, and human beings can only succeed in realising its different aspects through attempts to better understand it. A reconstruction of Imam Ali’s theory of justice For those who are familiar with the views of Imam ‘Ali, as outlined in a collection of his sermons, letters, and aphorisms compiled by Sayyid Radi (c. eleventh century CE/fourth century AH) under the title of Nahj al-Balaghah (Peak of Eloquence) and in his other statements, letters, and sermons, 34 the views of Popper and Rawls concerning justice have a familiar ring. As we shall argue below, there appears to be a good deal of overlap between the views of Imam ‘Ali, a religious leader who lived 1,400 years ago, with the views of the two ethical and humanist thinkers of the modern era concerning the pivotal concept of justice. I would argue that one of the most important aspects of this rather extensive overlap between the views of these thinkers from two different cultures and two different eras lies in the fact that the themes agreed upon by them are objective truths and objective values. This means that these truths and values can be discovered and utilised by other observers in other cultures and other time-space frameworks. The significance of what was stated will be better understood when we realise that in the past decades and since the emergence of the intellectual fad of postmodernism, authors who follow this trend have Imam ‘Ali’s Theory of Justice Revisited Ali Paya 16 claimed that whatever is introduced in the field of human interaction, whether knowledge of natural phenomena or rules and regulations concerning what is utilised in the human society, is arbitrary, and that conventional identities and are all socially constructed. One of the epistemic corollaries of this perspective is that since social constructs emerge according to the needs of human beings, their identities change from one culture to the next. From here postmodern writers conclude that there are no universal concepts that can transcend specific cultures. I will elaborate on this later. Imam ‘Ali was not a philosopher in the strict sense of the word. Even though, according to critical rationalists, all human beings are by nature philosophers, in the sense that they all think about the so- called ultimate questions such as the nature of reality, their own place in the universe, and their moral responsibilities towards other creatures; and they try to find answers for these questions. 35 At any rate, Imam ‘Ali did not intend to establish a fully-fledged philosophical system regarding the concept of justice. However, what he has discussed with regard to the concept of justice and other concepts such as liberty, the relationship between the ruler and the ruled, living as is worthy of a true believer, and the like, could be considered as parts of such a system. Utilising these parts, one can define, more or less, a system of philosophical thought based on his views. The set of evidence that follows is not the result of a comprehensive research. The cases cited below are meant to provide a general outline of a theory of justice which can be constructed based on some of the views expressed by Imam ‘Ali.36 They do not represent an exhaustive study of his views on this subject. But it is my contention that even the few samples discussed here suffice to corroborate the main argument of the present paper. 1. Equality of human beings in their humanity In his famous letter to his renowned commander Malik al-Ashtar at the time of his appointment as the governor of Egypt, Imam ‘Ali advises him on how to rule in an appropriate manner. He stresses mercy, compassion and kindness towards the governed and avoidance of oppression of the ruled. It is worth pondering on the Imam’s argument for explaining his point. He says, ‘The people that you [Malik al-Ashtar] will be governing are of two types: they are either your brother in religion, or similar to you in creation.’37 Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 17 A comparison between this view and the views of Plato and Aristotle, both of whom maintained that people differ according to their different degrees of humanity, and also the views of Popper and Rawls who, influenced by Kantian thought, hold all human beings as equal, clearly shows that the Imam was promoting a position which had no affinity with the dominant philosophical positions of the ancient world. And yet his message, despite the fact that it had been penned many centuries ago, was rich with a content that sounds quite familiar for those who live in the modern era and subscribe to that trend of modernity which emerged with the Enlightenment and is regarded as the most rational manifestation of the project of modernity. It is this trend in modernity which has stressed the equality of human beings in their humanity as a fundamental ontological, epistemological, and methodological principle.38 2. Taking side with the oppressed in the struggle against the oppressor In different sayings or short texts ascribed to him and in a manner totally consistent with other parts of his epistemic system, Imam ‘Ali argues that siding with the oppressed in their struggle against the oppressor is a moral imperative for all human beings. For instance, in his last letter, which constitutes his Will and Testament, addressed to his two sons following the assassination attempt on his life by Ibn Muljam, the Kharijite,39 the Imam reminds them of a few important points. The letter is full of moral teachings and contains a wealth of inspirational ideas regarding humanity and justice. Imam ‘Ali starts his letter by recommending his sons to remember God at all times and then exhorts them to speak the truth, take a stand against oppressors, and extend a helping hand to the oppressed. 40 The tone of the Imam’s advice in the context of his letter makes it clear that, in his view, religion, race, and other cultural, historical, and genetic affiliations cannot and should not act as pretexts for disregarding this important moral obligation. In the aftermath of an infamous incident during which golden anklets were forcefully removed from the ankle of a Jewish woman under his rule, the Imam’s sharp rebuke of his companions and his stern warning to them are a glaring example of his justice-inspired attitude towards other fellow human beings. This attitude is wholly in tune with the intuition of the majority of the people in all times and Imam ‘Ali’s Theory of Justice Revisited Ali Paya 18 places, though of course diametrically opposed to the inclinations and preferences of those who are supporting a class-ridden society, in which a particular class, such as the aristocrats, the proletariats, the clerics, and their ilk, enjoy a privileged status at the expense of other classes. The compatibility of the Imam’s conception of justice with people’s intuition of a just society further corroborates the position of the critical rationalists who maintain that justice is an objective and universal value. Those who wish to undermine it must go to great lengths, as Plato’s Noble Lie clearly shows. 3. Public participation One of the other remarkable points about the political views of Imam ‘Ali, which distinguishes him from the thinkers of his time and brings him closer to the views of modern thinkers, is the genuine importance that he attaches to people’s political participation and their having an active role in defining their own destiny. The Imam’s approach in this respect is congruent with modern democratic aspirations. Imam ‘Ali thus makes a radical departure from the prevailing approaches of the tyrannical and autocratic rulers in the ancient world. In modern discussions regarding political justice, the focus of discussion is that all human beings are equal in humanity, and this is the foundation of the equal ‘human rights’ of all individuals (whether female or male, black or white, poor or rich). 41 Without endorsing this fundamental principle (which, of course, many regimes try to undermine) one cannot provide a robust and cogent argument for political justice. All despotic, dictatorial, totalitarian, authoritarian, and non-democratic regimes deny the principle of equality of people in their basic human rights, and in doing so they deprive all those whom they regard as ‘the other’ from political justice. Among the most important criteria of political justice is maximal and comprehensive political participation of the citizens. The model of governance generically known as democracy has made it clear that political justice cannot be realised without maximal political participation: citizens who are denied representation (let alone the right to be representatives) in the political arena remain voiceless. As a result their rights will be violated and indeed trampled; they will be deprived of necessary capacities for healthy development and will become the target of all sorts of discrimination while having no recourse to justice. In the aftermath of the assassination of the third caliph, ‘Uthman ibn ‘Affan, Imam ‘Ali demonstrated, in the clearest possible way, his Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 19 democratic attitude, his deeply-held views concerning respect for people’s right to self-determination, his full and comprehensive commitment to justice, and his deep conviction of the categorical status of the moral imperative of siding with the oppressed against the oppressor. When believers turned to him in droves, demanding that he accept the mantle of leadership of Islamic society, he made his position clear to them by stating the following in a famous sermon recorded for posterity in Nahj al-Balaghah: If people had not come to me and supporters had not exhausted the argument [concerning the necessity of accepting the office of the caliph by me], and had it not been for the pledge taken by Allah from the learned that they should not acquiesce to the [practice of] the gluttonous tyrant and should assist the hungry who are oppressed, I would have cast the reins of caliphate on its own shoulders.42 It sounds as if the above statements are being made by a fully enlightened political leader in our time. In the above proclamation, the Imam stresses two points: (a) the significance of being knowledgeable about the situation and (b) the importance of being committed to one’s responsibilities towards God and people. This clearly distinguishes the Imam from many leaders in the past and in the present who were/are power-hungry, careerist demagogues. The sincerity of the Imam’s utterance is quite apparent and clearly shows that he does not aspire to occupy a political office for his own personal benefit. It is his concern for the oppressed and his responsibility to establish justice (in the profound sense that the Imam explains) that motivate him to take part in the political process and present his skills in dealing with the society’s problems. It is the popular support plus his sense of duty – and not the political machinations and the promises and the material support of the mighty and the wealthy – that convinces him to accept this responsibility. The Imam’s statement also shows that if the premise of the conditional proposition in his proclamation, which made it incumbent upon him to accept the office of the leader, were negated – that is, if people were to give up their support – he too would not hesitate to abdicate the responsibility that the people had put on his shoulders. Unlike the demagogues in the circus of politics, be it in the modern world or in the ancient world, Imam ‘Ali would not be attempting to stay in power through stratagem, subterfuge, deception, Imam ‘Ali’s Theory of Justice Revisited Ali Paya 20 or artifice; he would not be resorting to all sorts of immoral means like kickbacks and bribes, or using brute force for the sake of prolonging his term in the public office. The Imam’s approach corresponds with the modern method that Popper discusses regarding the democratic way to assign political power. In a brilliant discussion concerning the conception of leadership in political philosophy, Popper, in his Open Society And Its Enemies, explains that since the time of Plato the main question in the field of politics has always been about the ways in which the most qualified person for managing affairs in the political arena should be chosen. Popper explains that this question is wrong. The correct question should be: what mechanisms should be in place so that if the ruler is not able render his/her duties and fails to sustain the support of the people, a new ruler can be appointed in his/her place without violence or bloodshed? In his sermon, quoted above, Imam ‘Ali has clearly defined this mechanism: real popular support and the oath of allegiance (or in modern parlance votes) votes of the citizens. Imam ‘Ali makes it clear that if such support is not there, the leader must transfer power to the candidate on whom people have reached a consensus. 4. The objective nature of justice That justice is a social construct is a view proposed by philosophers like Plato and Aristotle, their intellectual heirs, and also post-modern philosophers and their like-minded fellows in the modern world who believe that everything with which human beings deal is socially constructed. The views of these philosophers are informed by the assumption that all things are post-social and even natural entities can only gain importance and significance when human beings choose to pay attention to them. This perspective, as demonstrated by critical rationalist philosophers, leads to a debilitating relativism which not only blocks the path to dialogue among groups, cultures, and civilisations, but also paves the way for violence.43 To say that justice is a construct means that those who are constructing it can decide to modify its conceptual capacities and interpret it in any manner that they please or their interests would require. In the world of Islam, the Ash‘arites, in relation to the notion of Divine justice, maintained that justice is not an objective value which could be assessed by means of objective criteria; it is whatever God chooses to do.44 Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 21 Critical rationalist philosophers, as stated earlier, believe in the objective nature of justice and view democracy as a powerful instrument for exploring and realising its capacities. These philosophers apply the theory of the ‘three worlds’ to argue that justice, like other values and virtues, is among the entities that has emerged with the increase in the complexity of World 1 (reality as a whole) simultaneous with the formation of human societies. According to the theory of the ‘three worlds’, each individual uses his/her World 2 (which represents an individual’s subjective cognitive and emotive capacities, memories, tacit knowledge, intuitions, and so on) in their interaction with World 1 and in response to the ‘problems’ introduced by reality (whether physical/natural reality or socially constructed reality) and come up with ‘solutions’ in the shape of conjectures, theories, stories, melodies, music, poetry, rules and laws, conventions, principles, technologies, and so on. World 3 represents the abode of all such products. World 3 is a real world since it possess causal power and can impact World 2 and thus make changes in World 1.45 What can be inferred from Imam ‘Ali’s comments on justice is that, according to him, justice is an objective concept and is not a man-made construct. 46 Imam ‘Ali’s reply to the question of whether justice is better than generosity is a case in point which clearly shows his realistic views regarding justice. 47 He says: ‘Justice is a universal path, while generosity is a particular case; hence, justice is the superior and nobler of the two.’48 In another sermon Imam ‘Ali says: ‘There is a vast capacity in justice. He who finds justice as a constraint, will [surely] find oppression much more restricting.’49 Here too the statement by the Imam shows that he views justice as an objective entity with vast real potentials into which we can tap to improve social conditions. The elimination of these capacities will make life difficult and unbearable for all. 5. Justice as fairness In his discussion of justice, Rawls tries to show, through an ingenious thought experiment, that if all people are placed in a situation where they have to decide about their future without any privileged knowledge about their situation, then none of them, conscious of the fact that others are exactly in the same position with respect to deciding their own futures, would choose a privileged position. Each participant in the experiment would come to the conclusion that the best possible Imam ‘Ali’s Theory of Justice Revisited Ali Paya 22 situation for him/her is to be on an equal footing with the rest, with no extra head start. The participants would realise that in their bid to find a fair and just place in their future life, the only thing upon which they could/should rely is their innate abilities and not any external privileged status. In such a situation, what shapes one’s future, apart from one’s inherited and innate potentials, is one’s determination and hard work (or lack thereof).50 Rawls’s idea of ‘justice as fairness’, following its first appearance, became conceptually richer as a result of critical assessments by various critics and commentators. For instance, it was agreed that if certain individuals, through mental or physical disabilities, could not compete on a level playing field with able-bodied individuals, certain measures would have to be adopted in their favour so that the possibility of [a fair] competition can be obtained. An important Popperian theme that can be used to enrich Rawls’s view is the notion of cooperation through competition. This idea is rooted in the conjecture that in a democratic society, the vast and diverse capacities hidden in individuals and in the society/community will be realised/actualised only when all the individuals in the society participate in a never-ending competition which is based on moral principles and whose aim is not eliminating others but to add to the positive capacities in the society through epistemic exchanges and also cooperation in non-epistemic areas.51 The idea of justice as fairness appears to be the idea emphasised by Imam ‘Ali. With respect to the notion of justice as fairness, the Imam says: ‘Regarding God’s injunction (in the Qur’an): ‘Lo! Allah enjoineth justice and kindness, and giving to kinsfolk’ (90:16), justice equals fairness and giving to kinsfolk equals kindness.’52 A cursory glance at the life and deeds of Imam ‘Ali suggests that the idea of cooperation through competition is also endorsed by him. Imam ‘Ali’s constructive cooperation with the first three caliphs during the twenty-five years after the passing of the Prophet, despite the fact that according to the Shi‘a he had been appointed by Prophet to serve as the Prophet’s successor, is the best example that shows the Imam’s strong conviction in the principle of cooperation through competition. During the period of twenty-five years after the death of the Prophet, Imam ‘Ali never stopped providing the three caliphs with his wise and sincere counsel which combined advice with critical assessments. We can mention other examples and refer to more diverse aspects of similarity/commensurability between the views of Imam ‘Ali and the critical rationalist thinkers on justice and its rich conceptual Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 23 framework. But the important point that needs to be emphasised is that in the modern world, in contradistinction with the traditional world, institutions have gained central importance and ‘institutional ethics’ as opposed to ‘individual ethics’ has become the accepted norm in social interactions. Imam ‘Ali was, in modern parlance, a virtue ethicist.53 We can see this in the intellectual legacy that he left behind. But the important question that we need to ask, in relation to the main theme of this article, is this: was Imam ‘Ali as concerned, as modern thinkers are, with the importance of institutions and the necessity of constant monitoring and critical assessment of their activities? As was mentioned earlier regarding the selection of political leaders, modern thinkers, especially Popper and Rawls, maintain that even though the integrity and moral uprightness of individuals are important virtues that should be promoted by the educators in any society, being a moral agent – even being a moral agent with exceptional leadership capabilities – is not sufficient for making an individual fit for the purpose of managing the affairs of modern societies; for this purpose it is essential to establish appropriate and effective institutions, and continually increase their effectiveness through never-ending processes of critical assessment of their functions and activities. We can only define Imam ‘Ali’s thought as being closer to modern thought than the views prevalent in the ancient world if we can show that he too, within the limits of his time and society, was not oblivious of the importance of institutions and the need for incessantly and critically monitoring their activities. A close examination of Nahj al-Balaghah and other documents attributed to the Imam shows that, in addition to promoting virtue- based ethics, he was also keen on institution building, reforming institutions, and reforming the society through reforming the institutions, even though he may not have pursued such goals as explicitly and extensively as contemporary philosophers deal with them. As an example of the Imam’s awareness of the significance of the institutions, one need not to look further than the Imam’s view on the way in which the Muslim treasury (bayt al-mal) should be managed. The Imam’s discussions of this issue in various contexts clearly show that he believed in the institutional audit of the bayt al-mal in a way in which the financial allocations of each individual would be calculated and any type of malfeasance would be punished. In reply to one of his companions, ‘Abd Allah ibn Zama‘ah, who had asked him for a Imam ‘Ali’s Theory of Justice Revisited Ali Paya 24 portion from the Muslim treasury, the Imam says: ‘These funds are not mine or yours; they are public funds for all Muslims.’54 Exactly the same theme is raised in his letter to Masqalah ibn Hubayrah al-Shaybani, his representative in the city of Ardashir Khurrah (modern-day Firuzabad) in Fars: ‘Beware that the Muslims who are with either you or us have the same right to this booty; they come to me, get what is rightfully theirs, and return.’55 Consistent with this same policy, which can be found in other parts of Nahj al-Balaghah, the Imam emphasises that he will return to the Muslim treasury whatever was illegally taken out during the time of caliph ‘Uthman, even though this wealth might have already been spent for different purposes. In the same passage, he adds that there is a vast capacity in justice; if an individual or society cannot tolerate it, the same society or individual would have a harder time tolerating tyranny because tyranny does not have such a capacity. 56 An assessment of the intellectual legacy of Imam ‘Ali shows that justice is one of the most pivotal concepts for him with respect to social interactions, not only at the level of individuals, but also as a principal social institution. The Imam’s dialogues with his political opponents, his governors, other rulers, and the masses, which have been handed down to us in the form of letters, sermons, and sayings, clearly show his main concern. The Imam’s recommendations regarding the responsibilities of ministers, judges, army personnel, scribes, and other governmental classes, as well as craftsmen and guild members, average people and the deprived, are all imbued with a concern for justice, not merely as an individual virtue, but as a main social institution. Conclusion One can cite further examples for the cases we have discussed above, but it appears that what has been mentioned suffices to corroborate the main argument of this paper. This paper has attempted to argue, within its limited scope, and by means of a number of specific cases, that Imam’s ‘Ali’s theory of justice, unlike the theories of some of the greatest thinkers in the ancient world that were geared towards justification of injustice or creating special privileges for particular groups in the society, is compatible with some of the most important modern theories of justice. By emphasising the common nature of humanity and the equality of all human beings with respect to basic human rights, the Imam’s theory – in line with these modern theories – Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 25 paves the way, in an effective way, for the promotion and dissemination of social and political justice. It must nevertheless be emphasised that the claim of the present paper is a minimalist one. It only states that Imam ‘Ali, despite belonging to a traditional world, has discussed some issues which, on a sympathetic reading, can be shown to be more or less similar to some of the most important themes discussed in modern theories of justice. But of course one cannot and should not conclude from what has been discussed that the totality of Imam ‘Ali’s epistemic constellation, or what has been handed down to us as his views, belongs to the modern world. Since Imam ‘Ali was an inhabitant of the ancient world, and of necessity had to interact with people of his time, he had no choice but to modulate the horizons of his thought and action to make them commensurate with the historical capacity of his era.57 Despite this, the amazing insights that we have seen in the Imam’s thought show that, notwithstanding what most anti-realist thinkers of the twentieth century have stressed with respect to the incommensurability of the ancient/traditional and modern paradigms, 58 Imam ‘Ali was not a helpless prisoner of the paradigm of his time. Notes 1 A shorter Persian version of this paper appeared in ‘Ali Akbar ‘Alikhani (ed.), Daramadi bar Nazariyih-yi Siyasi-yi ‘Idalat dar Islam (Tehran: Pazhuhishkadih Mutali‘at-i Farhangi va Ijtima‘i: Danishgah-i Imam Sadiq, Markaz-i Tahqiqat, 1388 AH (solar)). A number of colleagues have read earlier drafts of this paper and have made constructive comments on it. I would like to thank in particular Yaser Mirdamadi, Daryoush Muhammadpoor, Mohammed Ali Ismail, and the anonymous referees of the Journal of Shi‘a Islamic Studies for their helpful observations. 2 Cf. Harry Brighouse, Justice (Cambridge: Polity Press, 2004), vi. 3 Al-mulk yabqa ma‘a al-kufr wa la yabqa ma‘a al-zulm. Ayatollah Surush Mahhallati maintains that this statement has not been quoted in authentic sources on hadith; however, its content is so close to the Prophet’s way of thinking that Muslim thinkers have accepted it as a hadith. Surush Mahallati, ‘Kudam Dawlat?’ (Muhammad Surush Mahallati, 1390 AH (solar)) <http://www.soroosh-mahallati.com/modules.php?name =News&file=print&sid=70>. Accessed 22 January 2013. 4 For an overview of the most important theories on justice in Western history, see Alan Ryan, Justice (Oxford: Oxford University Press, 1993). 5 Plato, The Republic, ed. G.R.F. Ferrari, trans. T. Griffith (Cambridge: Cambridge University Press, 2003). 6 Brighouse, Justice, vi, note 4. 7 Brighouse, Justice, 2. Imam ‘Ali’s Theory of Justice Revisited Ali Paya 26 8 Plato, The Republic, 104-108 (Book 3, 414-415). 9 The question might arise whether the use of the term ‘democracy’ here is anachronistic, since some might hold that Plato would not affirm the modern concept of democracy which, in his era, would have come across as mob rule. This view would be factually accurate but not normatively valid. The fact that Plato regarded ‘democracy’ as the rule of mob does not mean that ‘democracy’, even then, was a horrible political system. Anti-democratic writers were doing their best to portray it in the worst possible light. For example, Heraclitus, whose ideas had greatly influenced Plato, writes: ‘[...] the mob fill their bellies like the beasts [...].They take the bards and popular belief as their guides, unaware that the many are bad and that only the few are good [...].The mob does not care, not even about the things they stumble upon; nor can they grasp a lesson – though they think they do.’ (Heraclitus, Fragments, quoted in Popper, Open Society and Its Enemies (London: Routledge, 1966), 12). Athenian democracy was against tyranny and oligarchy. Of course, like all man-made constructs it was not perfect. But relatively speaking it was superior to its rivals. 10 In this text I use the terms ‘pre-modern’/’traditional’/’old world’ as more or less interchangeable and in contrast to the term ‘modern world’. The modern world is distinguished from the traditional world by a number of features including the rise of the bourgeoisie and capitalism; subjectivity and individualism; colonialism, Western imperialism and neo-Colonialism; the emergence of nation-states and nationalism; industrialisation and urbanisation; democratisation and the rise of mass culture (including mass movements, mass literacy, mass production and mass media); secularisation, disenchantment and re-enchantment with the world. The following three mottos by three modern thinkers nicely capture the spirit of the modern time: ‘Have courage to use your own intellect!’ (Kant); ‘All that was solid melted into air’ (Marx); ‘Human, all too human’ (Nietzsche). 11 Karl Popper, ibid., 255-351. 12 Ibid. 259-260. 13 Postmodernism is a broad church and comprises many views developed by writers from different fields. However, despite differences in style and subject-matter, a core of common themes can be identified in the works of almost all postmodern writers. The list includes belief in the relativity of truth, context-dependency of the criteria for assessing the validity of claims, the subjectivity of values, the universal validity of the claim to knowledge, and the social-constructedness of reality. For a critical reader of postmodernism see Peter Brook, Modernism/Postmodernism (London & New York: Longman, 1992); for a critique of postmodern approaches see David Miller, Out of Error: Further Essays on Critical Rationalism (Aldershot: Ashgate, 2006). 14 Critical rationalism is a philosophical school of thought introduced by Karl Popper in the twentieth century and further developed by his students. It is a realist school which maintains, among other things, that all knowledge is conjectural, and yet it is not impossible to get closer to the truth about reality by means of correcting our past mistakes. It also emphasises the objective nature of knowledge and truth, the importance of subjecting all views to critical assessment for the sake of exposing their shortcomings, and the objectivity of values. It takes an anti-justificationist and anti- foundationist approach towards epistemic issues. For a thorough treatment of some of the main themes of critical rationalism see Karl Popper, Conjectures and Refutations (London: Routledge, 1963); Objective Knowledge: An Evolutionary Approach (Oxford: Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 27 Clarendon Press, 1979); David Miller, Critical Rationalism: A Restatement and Defence (Chicago Open Court, 1994); and David Miller Out of Error. 15 Otfried Höffe, Aristotle, trans. C. Salazar (Albany: State University of New York, 2003), 176. 16 Fred Miller, Nature, Justice, and Rights in Aristotle’s Politics (Oxford: Clarendon Press, 1995). 17 Aristotle, The Ethics of Aristotle: the Nicomachean Ethics, trans. J. Thomson (Harmandsonworth: Penguin, 1973). 18 For a more comprehensive discussion of the doctrine of the ‘mean’, see G.E.R. Lloyd, Aristotle: The Growth and Structure of His Thought (Cambridge: Cambridge University Press, 1982), 217-223. 19 Aristotle, The Nicomachean Ethics, ed. L. Brown, tr. D. Ross (Oxford: Oxford University Press, 2009), 90. 20 G.E.R. Lloyd, Aristotle, 517. 21 Some post-modern writers have pointed out that post-modernism is, in one sense, a return to the pre-modern era. See, for instance, Ihab Hassan, The Postmodern Turn: Essays in Postmodern Theory and Culture (Columbus: Ohio State University Press, 1987). 22 Popper, Conjectures and Refutations, Ch. 11 (‘The Aristotelian Roots Of Hegelianism’). 23 See, for example, Majid Khadduri, The Islamic Conception of Justice (Baltimore & London, John Hopkins University Press, 1984); ‘Ali Akbar ‘Alikhani, ‘‘Idalat az Didgah- i Imam ‘Ali’ (PhD thesis, Imam Sadiq University, Tehran, 1996). I am indebted to Dr ‘Alikhani for providing me with a copy of his thesis. I have benefitted from this thesis in developing some sections of the present paper. 24 ‘Alikhani, ‘‘Idalat az Didgah-i Imam ‘Ali’. 25 For development of theoretical discussions on justice, see Serge-Christophe Kolm, Modern Theories of Justice (Cambridge: MIT Press, 2002); Brian Barry, Theories of Justice (Berkeley: University of California Press, 1991); Stewart Jay, Theories of Justice (Seattle: University of Washington School of Law, 1989). 26 Strictly speaking, John Rawls cannot be regarded as a thoroughgoing critical rationalist. However, there is a great deal of affinity between his views and the views of a philosopher like Karl Popper to qualify the former as a fellow critical rationalist. On this point see, Alan Boyer, ‘Is an Open Society a Just Society? Popper and Rawls’, in Learning for Democracy, vol. 1, no. 2 (2005), 7-27. 27 For Popper’s view on World 3 and his theory of three worlds see his Objective Knowledge. 28 For a theoretical discussion concerning the objective world of values in the realm of moral values, see Ali Paya, ‘Systim-ha-yi Baz, System-ha-yi Bastih, va Falsafih Akhlaq-i Mubtani bar Isalat-i Misdaq’ (Open Systems, Closed Systems and Particularism in Ethics), in Jashn namih-i Duktur Muhsin Jahanghiri (Tehran: Hermes Publications, 2007). 29 For a discussion on technologies, their main functions, and their role in responding to man’s epistemic needs, see Ali Paya, Fannavari, Farhang va Akhlaq (Technology, Culture, and Ethics) (Tehran: Pazhuhishgah-i Farhang, Hunar va Irtibatat- i Islami, 2009); also Ali Paya, ‘Critical Observations Concerning the Two Notions of “Islamic Science” and “Indigenous Science”’, in Hikmat va Falsafih, vol. 3, nos. 2-3 (concurrent issues 10-11, Spring 2008), 39-76. 30 Alan Boyer, ‘Is an Open Society a Just Society?’. Imam ‘Ali’s Theory of Justice Revisited Ali Paya 28 31 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971). 32 In the conclusion of his comparison of the views of Popper and Rawls, Boyer writes: ‘An open society is not necessarily a Rawlsian perfectly “just” one, but a Rawlsian just society would be necessarily an open society’ (Boyer, ‘Is an Open Society a Just Society?’, 25). Boyer’s point, due to its succinctness, can be misleading. The following explanation is aimed at making his point clearer. Where Boyer says that an open society is not necessarily a just society in a Rawlsian sense, he is referring to a very important difference between the Popperian and Rawlsian systems which needs to be examined. For Popper, an open society is a regulating principle, or an ideal type (in the Weberian sense); that is, it is an ideal model which societies should approach. In such a well-developed society, responsible citizens and rational institutions (whose functions are improved through critical evaluation) provide the best context for the realisation of justice. But from a Popperian point of view, the citizens’ understanding of the concept of justice and its capacities, like their understanding of all other concepts and phenomena, are constantly evolving and as a result, particular instances of justice which are produced in line with people’s understanding of justice also constantly evolve. In this context, the openness of the society means exactly that the society’s capacities for developing new approaches towards justice are never depleted and since no preconceived/a priori scheme governs the development of these approaches (rejection of determinism); and since according to the critical rationalism inductivism (i.e., the recurrence of past events or past order of things) is untenable, agents possessing freedom and rationality continually try to gain a better and newer understanding of justice by means of learning through and from their past mistakes. Hence, in the Popperian open society, the Rawlsian model of justice will only be one of the models that will be at the service of the agents till it will be replaced by a better, more accurate and more comprehensive model. Therefore, a Popperian open society is not necessarily a Rawlsian perfectly ‘just’ society. But as Boyer has mentioned, the reverse of this is not correct: no just society, including the society in which Rawlsian justice is established, can be a closed (i.e. a non-open) society. The Rawlsian model of justice, as Boyer has mentioned, is a static model despite all of its points of strength. In this model little attention has been paid to the unwanted negative consequences of institutions. The importance of critiques and the fact that individuals can always transcend themselves and achieve higher goals have not been duly developed in this model. Popper’s keen insight in complementing Rawls’s treatment of a ‘life plan’ clearly shows to what extent Popper’s views can be utilised to enrich Rawls’s ideas. That is why Boyer in his article has rightly stressed that ‘Rawlsians should read Popper’. Ibid., 8. 33 J. Rawls, Collected Papers, ed. S. Freeman (Cambridge, MA: Harvard University Press, 1999), 191. 34 Another collection of the Imam’s sermons, letters, and maxims was compiled by ‘Abd al-Wahid Tamimi Amidi (c. twelfth century CE/fifth century AH) under the title of Ghurar al-Hikam wa Durar al-Kalim. 35 Karl Popper, ‘How I see Philosophy’, in In Search of a Better World: Letters & Essays from 30 Years (London, Routledge, 2000). 36 I have used the following source for a number of cases discussed above: ‘Ali Ansariyan, al-Dalil ‘ala Mawdu‘at Nahj al-Balaghah (Tehran: Intisharat-i Mufid, 1357 AH). 37 Nahj al-Balaghah, letter 53. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 29 38 For a philosophical discussion on the phenomenon of modernity see Jurgen Habermas, The Philosophical Discourse of Modernity (Cambridge: Polity, 1984); also see my paper ‘Mulahizati Intiqadi dar barih Tajrubih Mudirniti dar Iran’ (Critical Observations Concerning the Experience of Modernity in Iran), in Falsafih va Hikmat, no. 15 (Autumn, 2008), 63-90. 39 The Kharijites (lit. ‘those that seceded’) were members of the earliest sect in Islam who were part of Imam ‘Ali’s army in his battle against Mu‘awiyah, the governor of Damascus and a close relative of ‘Uthman. They rebelled against ‘Ali because ‘Ali, under their serious threat of killing him, had to enter into peace negotiations with Mu‘awiyah despite having the upper hand. The Kharijites were very strict in their adherence to a literal interpretation of the Qur’an. They would not tolerate any deviation from their strict and dogmatic understanding of the teachings of Islam and would punish those who, in their eyes, had gone astray with the death penalty. 40 Nahj al-Balaghah, letter 47 (‘usikum bi taqwa Allah…wa qawlan bil-haqq…wa kunna li al-zalim khasman wa li al-mazlum ‘awnan’). 41 Many writers have noted that ‘human rights’, though a modern invention or construct, is a notion whose general sentiment which can be traced back to many religious teachings. For example, the Qur’an clearly and explicitly states: ‘O mankind, We have created you male and female, and appointed you races and tribes, that you may know one another. Surely the noblest among you in the sight of God is the most godfearing of you. God is All-knowing, All-aware.’ (Qur’an 49:13, Arberry translation). 42 Law la hudur al-hadir wa qiyam al-hujjah bi-wujud al-nasir, wa ma akhadha Allah ta‘ala ‘ala al-‘ulama’ alla yuqaru ‘ala kizzatin zalim, wa la saghab-i mazlum, la-alqaytu hablaha ‘ala gharibiha.Translation from Imam Ali ibn Abu Talib, Peak of Eloquence, Nahjul Balagha, ed. Yasin T. Al-Jibouri (New York: Tahrike Tarsile Qur’an, 2009), 316 (quoted with slight modification to the translation). 43 For critiques of the views of constructivists, relativists, and post-modern writers from the standpoint of critical rationalism, see: Popper, Open Society; Ali Paya, Falsafih Tahlili va Tahlil-i Falsafi: Masa’il, Chishmandaz-ha va Karburd-ha (Tehran, Tarh-i Naw, 1392 AH (solar)); Paul Boghossian, Fear of Knowledge: Against Relativism and Constructivism (Oxford: Clarendon, 2006). For the relationship between epistemic relativism and violence, see my Dialogue in the Real World (Tehran: Tarh-i Naw, 1381 AH (solar)); Karl Popper, The Myth of the Framework (London: Routledge, 1994). 44 See Murtada Mutahhari, Divine Justice, trans. S. Abidi et al. (Qum: International Center for Islamic Studies, 2004); Majid Fakhry, A History of Islamic Philosophy (New York: Columbia University Press, 2004). 45 Karl Popper, The Myth of the Framework. 46 Ayatollah Mutahhari in his Divine Justice extensively discusses the history of the discussions concerning justice in the Islamic culture. According to him the theories of Shi‘a scholars on justice, inspired by the views of the Shi‘a Imams, became much more refined and accurate in comparison to the views of the other Muslim scholars: Shi‘a philosophers came to regard justice as an objective concept. 47 Muhammad ‘Abduh (ed.), Nahj al-Balaghah (Beirut: al-Dar al-Islamiyyah, 1992), 605 (saying no. 431). 48 Ibid. 49 Nahj al-Balaghah, tr. J. Shahidi (Tehran: Intisharat-i ‘Ilmi va Farhangi, 1992), 16 (sermon 15). Imam ‘Ali’s Theory of Justice Revisited Ali Paya 30 50 J. Rawls, Collected Papers, Ch. 18. 51 See Popper, Open Society And Its Enemies; Objective Knowledge; The Myth of the Framework. 52 Nahj al-Balaghah, trans. J. Shahidi, 399. 53 Virtue ethics is concerned with moral characters and traits. It main thesis is that moral agents can make better informed rightful moral decisions and better behave in accordance with the norms of morally good conduct through acquiring virtuous traits. For a general introduction to virtue ethics see Christine Swanton, Virtue Ethics: A Pluralistic View (Oxford: Oxford University Press, 2005). 54 Nahj al-Balaghah, trans. J. Shahidi, 265 (saying no. 232). There are numerous other occasions in the Imam’s life in which he set high standards of probity with regards to dealing with what belongs to the people and the public domain. The following cases are just two examples of such an attitude. On one occasion when Imam was auditing the bayt al-mal in the middle of the night and a companion entered his chamber and asked him to advise him on a personal matter, the Imam immediately put out the lamp burning with oil paid for from the treasury and lit a lamp which had oil that he had purchased by himself. (Muhammad Baqir al-Majlisi, Bihar al-Anwar XL (Beirut: Dar Ihya’ Turath al-‘Arabi, 1403 AH, 136) On another occasion, his blind brother ‘Aqil asked him to give him an extra amount from the treasury which was not due to him. In response, the Imam brought a very hot iron rod close to ‘Aqil’s hand and asked him to touch it. ‘Aqil complained that the Imam had treated him unkindly. The Imam replied, ‘You could not tolerate the pain caused by a man-made flame and yet you expect me to tolerate the fire of Hell’ (Nahj al-Balaghah, sermon no. 215). 55 Nahj al-Balaghah, trans. J. Shahidi, 316. 56 ‘By God if I see that this [wealth] has been included as part of dowry of your wives, or for purchase of women slaves, I will reclaim it [for the Muslim treasury] because there is plenitude in justice, and he who does not accept justice will find it harder to accept tyranny.’ Ibid., 16. 57 In this context, some of the Imam’s observations and proclamations which may seem not quite in tune with the above progressive attitude should be understood and interpreted. Imam ‘Ali’s approach to the entrenched and deep-rooted traditions in his society, just like the approach of the Prophet, and based on their understanding of the teachings of the Qur’an, was geared towards the policy of gradual improvement. It is clear from the way the Imam was trying to educate the people that he maintained that in the light of better understanding the true spirit of the Islamic teachings, people would be better prepared to get rid of unjust traditions, practices, customs, and institutions. The sad fact that the Imam’s ideal and aspiration have not been fully actualised is not a refutation of the validity of his approach. It is rather a verdict against the policies of those who were/are supposed to promote and disseminate the Imam’s project. 58 For the views of some the anti-realist philosophers and the notion of the ‘incommensurability of paradigms’ see Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1971); Paul Feyerabend, Against Method (London: Verso, 1988). Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 31 The Establishment of the Office of the Shurtah during the Caliphate of ‘Ali ibn Abi Talib A L I R E Z A A S H T A R I T A F R E S H I Department of the History and Civilization of Islamic Nations, Imam Khomeini International University, Qazvin, Iran ashtari.tafreshi@gmail.com A L I B A Y A T Department of the History and Civilization of Islamic Nations, University of Tehran, Tehran, Iran abayat@ut.ac.ir F A T E M E H A H M A D V A N D University of Tehran, Tehran, Iran fahmadvand@yahoo.com ABSTRACT: Although some historical accounts refer to the existence of a shurtah before the caliphate of ‘Ali ibn Abi Talib, other accounts which refer to the shurtah during the caliphate of ‘Ali show that the real formation of the shurtah as a governmental organization occurred during the caliphate of ‘Ali. During this time, the military and to some extent the social and political characteristics of this organization were directly linked with ‘Ali’s political and ideological supporters; that is, originally, the shurtah was the same as the shurtat al-khamis or shurtat al-jaysh, which was comprised of an elite group of dedicated, faithful adherents of ‘Ali. Subsequently, the composition of the shurtah changed, and it developed into a full-fledged governmental organization in the Islamic empire KEYWORDS: shurtah, shurtat al-khamis, ‘Ali ibn Abi Talib, Iraq, Shi‘a, governmental organization. mailto:ashtari.tafreshi@gmail.com mailto:abayat@ut.ac.ir mailto:fahmadvand@yahoo.com The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 32 Introduction 1 In the golden age of Islamic civilization, various governmental organizations undertook the administration of the affairs of the society and the government. The shurtah was one of those organizations which even today exists with the same title and with almost the same responsibilities in Arab countries. During its evolution in the mediaeval period of Islamic civilization, this organization was performing duties in two main areas. First, the shurtah kept the peace inside urban areas and combated theft, looting, and aggression in general; in addition, it handled violations of Islamic teachings, such as drinking wine or assaults against the sanctity and doctrine of the religion.59F 2 Second, it helped the government and governmental organizations carry out their aims and was under the government’s command; for instance, members of the shurtah used to deliver messages under the orders of caliphs or rulers. They also used to act as town criers to convey the will of the government in cities and to summon people or assist judges in handling convicts.60F3 Despite an almost ideal understanding of the organization of the shurtah in the middle and even early ages of Islamic civilization, there are still some ambiguities regarding the nature and formation of the shurtah in the early decades of the establishment of Islamic caliphate. When precisely was this organization founded? Was this organization called the shurtah when it was established, and why? And what was the function of this organization when it was founded? These questions will be addressed in this article. The shurtah before the caliphate of ‘Ali When the Islamic caliphate was established, cities in the Hijaz began to develop, and new cities were established in Iraq and Egypt. The primary socio-political needs of these urban regions were maintaining order and establishing security, in addition to maintaining the sovereignty of the ruling powers. Most likely, some specific individuals were appointed to establish order and security in cities like Kufa, which did not have a homogenous population and consisted of various tribes and other groups, and which was often the focal point of tribal and political conflicts and skirmishes. It cannot be decisively said that these people were referred to as the shurtah in that period. However, some accounts refer to the use of the Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 33 term shurtah during the caliphate of ‘Umar ibn al-Khattab (13-23 AH) and ‘Uthman ibn al-‘Affan (23-35 AH). For example, Ya‘qubi (d. 284 AH) refers to ‘Abd Allah ibn ‘Abbas as the head of ‘Umar’s shurtah and also as his chamberlain (hajib). 61F4 Tabari (d. 310 AH) narrates a poem from Abu Shajarah ibn ‘Abd al-‘Uza al-Sulami (known as Ibn al-Khansa’) against ‘Umar,62F5 and the word shurtatihi used in the poem is believed to refer to the shurtah of ‘Umar.63F6 Elsewhere, Ibn Sa‘d (d. 230 AH) states that in the year 32 AH, some individuals from the shurtah gave orders for the funeral ceremony of ‘Abbas ibn ‘Abd al-Muttalib, the Prophet’s uncle, to be held. 64F7 In another case, ‘Abd Allah ibn Qunfudh al-Taymi was named as the head of shurtah of ‘Uthman (sahib shurat) 65F8. Even Khalifat ibn Khayyat (d. 240 AH) reiterates that for the first time, ‘Uthman established such a position (sahibu shurat).66F 9 There is another account from Tabari which states that in 33 AH, ‘Abd al-Rahman Asadi, the head of the shurtah of Sa‘id ibn al-‘As, the governor of ‘Uthman in Kufa, sided in favour of Sa‘id in an argument between Sa‘id and Malik ibn al- Harith al-Ashtar.67F 10 Also Yaqut (d. 626 AH)68F 11 states that the district of Zurarah in the suburbs of Kufa was assigned to Zurarah ibn Yazid ibn ‘Amr, and he considers him to have been the head of the shurtah of Sa‘id ibn al-‘As. Although these accounts clearly refer to a shurtah before the caliphate of ‘Ali, they do not present conclusive proof that the word shurtah was used during the caliphates of ‘Umar or ‘Uthman. First, in these accounts, shurtah is used as a noun in an idafah phrase (a genitive grammatical construction) – for instance, the shurtah of ‘Umar, the shurtah of ‘Uthman, and the shurtah of Sa‘id ibn al-‘As. Shurtah in these usages may simply refer to their personal guards or the guards of their ruling headquarters, such as the dar al-imarah belonging to Sa‘id in Kufa, instead of an actual organization called a shurtah. Second, in Tabari’s account of the poem of Ibn al-Khansa’, the word sh-r-t-h may be read as a verb (sharattuhu or sharrattuhu) instead of as a noun (shurtatihi); the former would be more in agreement with the atmosphere of the poem and, ironically, would mean ‘to lance the soul of ‘Umar with the poet’s poem’. Third, in the account by Ya‘qubi, while Ibn ‘Abbas is mentioned as the chamberlain and head of the shurtah of ‘Umar, it is doubtful that the post of the chamberlain (haijb) existed during the caliphate of ‘Umar.69F 12 It seems that the words hajib and shurtah were added anachronistically to the accounts of the first decades of the Islamic caliphate in the following centuries; not only was it common in Islamic hagiography to use later terminology to describe The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 34 the history of the preceding periods, but, additionally, it is not recorded elsewhere that Ibn ‘Abbas was the head of ‘Umar’s shurtah or his hajib. 13 Finally, Yaqut’s account is exactly the same as that of Baladhuri (d. 279 AH); 14 the only thing he adds is that Zurarah was in the shurtah of Sa‘id. Nevertheless, despite the question over terminology, it can be deduced that these individuals were carrying out the duties of the shurtah even if there was no organization called the shurtah, and this was sufficient for later historians to refer to them as a shurtah, as was common in their eras; this will be expanded on in the subsequent discussion. The shurtah during the caliphate of ‘Ali (35-40 AH) Shortly after becoming caliph, ‘Ali moved the capital of the Islamic state from the Hijaz to Iraq; hence, the accounts related to the shurtah in the period of his caliphate are more connected with that region, and in particular Basra and Kufa. These accounts are of different types and are not dated, so the best way to study them is to categorize them according to who they are about. For example, concerning the organization of the shurtah in Basra, there is one account about Hukaym (Hakim) ibn Jabalah in Wafayat al-A‘yan by Ibn Khallikan (d. 681 AH). As for the biography of Hukaym, Ibn Khallikan15 states that he was one of the companions of ‘Ali and ‘Uthman ibn Hanif Ansari, the ruler of Basra on behalf of ‘Ali, appointed by Ibn Hanif as the head of the shurtah of Basra. Hukaym kept this position until the opponents of ‘Ali (the ashab al-jamal) came to Basra, and Hukaym was killed in a battle against ‘Abd Allah ibn al-Zubayr, one of the opponents’ commanders. In some older sources,16 there are some materials related to Hukaym which have some common points and differences with Ibn Khallikan’s biography on Hukaym. The common point is that Hukaym was one of the serious opponents of ‘Uthman and Bani Umayyah and was a faithful adherent of ‘Ali; the most important difference here is that only Ibn Khallikan refers to the shurtah of Basra and Hukaym’s connection with it. Other sources about Hukaym and the battle of Jamal in Basra show Hukaym protecting Basra against the arrival of the opponents of ‘Ali and against their desire to capture the city. In these accounts, there is information about some military groups: Ibn Hanif’s bodyguards (haras), Ibn Hanif’s riders (khayl), and also a group of Sababajah and Zuts.17 These groups constantly accompanied Ibn Hanif, protecting the Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 35 seat of his government and his treasury; they were composed of Ibn Hanif’s and Hukaym’s military forces who protected the local government of Basra.18 It is likely that due to the political disputes and skirmishes which took place in cities like Basra after the murder of ‘Uthman and ‘Ali’s coming to power, upon arrival in Basra, Ibn Hanif had appointed Hukaym as the head of these elite and special forces in order to protect the local government. This is probably why the later historians drew a parallel between Hukaym and shurtah commanders in their own age, such as the head of the shurtah in Basra. Therefore, like the abovementioned accounts, this account which speaks about the shurtah in Basra in the early days of the caliphate of ‘Ali does not absolutely prove the existence of shurtah as a governmental organization which was actually called the shurtah. Another individual connected with the shurtah of ‘Ali is Abu Juhayfah Wahb ibn ‘Abd Allah al-Suwa’i (d. 74 AH in Kufa) from the tribe of Bani Suwa’ah and who was known as Wahb al-Khayr.19 There is a tradition from ‘Ali in Fada’il al-Sahabah (by Ahmad ibn Hanbal, d. 241 AH) in praise of the shaykhayn (‘Umar and Abu Bakr) which says that Wahb was a member of the shurtah of ‘Ali. 20 According to this tradition, it seems that, usually, when ‘Ali was preaching from the pulpit, Wahb would stand at the foot of the pulpit. Fada’il al-Sahabah also contains other traditions with a similar content but with different chains of transmitters. All of these traditions and the first one were narrated through Wahb; however, as has been said, only the first one refers to Wahb as a shurti, or a member of the shurtah.21 The image presented by that tradition showing ‘Ali on the pulpit with at least one personal bodyguard at its foot is reasonable. The phrase used here – kana min shurat ‘Ali (he was one of the members of the shurtah of ‘Ali) – is an old form of reference to the shurtah. This phraseology was used less in books attributed to the following centuries and changed over time; for instance, Dhahabi (d. 748 AH) says the same thing in his biography of Wahb in al-‘Ibar 22 and Siyar A‘lam al- Nubala’,23 but he describes him as ‘the head of the shurtah of ‘Ali’ (sahib shurtat ‘Ali), which, linguistically speaking, is a later form of expression describing the connection between Wahb and the shurtah of ‘Ali, particularly in using sahib to mean ‘head’.24 Also Dhahabi is using an exaggerated style by introducing a simple shurti as the head of the shurtah. Ibn Hajar al-‘Asqalani (d. 852 AH) also says that ‘Ali had appointed Wahb as the head of the shurtah of Kufa. 25 This is the only account The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 36 which treats the shurtah in the age of the Rashidun caliphs (r. 11-41 AH) as being limited to a city. The allocation of the shurtah to a city in the mediaeval period of Islamic civilization or the evolution of the administrative organization of Islamic civilization was a common form in Islamic historiography. However, accepting it for the age of the Rashidun caliphs is a difficult issue and is another area where the historical horizon of the historiographer mixed in with the historical events of the age of the Rashidun caliphs. The last important point about Wahb is that he was mentioned as one of the close companions of ‘Ali, in particular in the battle against his opponents.26 Another person who was known as the head of the shurtah of ‘Ali is Yazid ibn Qays ibn Tamam al-Hamdani al-Arhabi. Ibn Hajar ‘Asqalani27 is the only person that in his biography on al-Arhabi has claimed that he was appointed by ‘Ali as the head of his shurtah. Elsewhere, he is described as one of the influential figures of Yemeni Arabs and a tough opponent of ‘Uthman and Sa‘id ibn al-‘As. In the conflict between ‘Ali and Mu‘awiyah, he is described as a dedicated companion and advisor of ‘Ali and a senior commander of his army.28 Additionally, someone by the name of Yazid al-Rab‘i al-Wasiti is mentioned as the head of the shurtah of ‘Ali. Unfortunately, there is little information available about him, and only Dhahabi29 says that he converted into Islam through ‘Ali and later on was appointed by him as the head of the shurtah. Other accounts have mentioned Malik ibn Habib al-Yarbu’i as the head of the shurtah of ‘Ali. Without referring to the connection between Malik and the shurtah, Baladhuri states that Malik was one of the qurra’ (Qur’anic reciters) of Kufa; his full name was Malik ibn Habib ibn Khirash; and he was from the tribe of Bani Tha‘labah ibn al-Yarbu’.30 Ibn Khayyat lists Malik al-Yarbu’i and Ma‘qil ibn Qays al-Riyahi as the heads of the shurtah of ‘Ali, but he does not specify whether they were administering the shurtah together, or one after another. 31 In some accounts from other sources – in particular about the Battle of Siffin – these two people are associated with each other as senior commanders of ‘Ali’s army.32 Waq‘at al-Siffin by Nasr ibn Muzahim (d. 212 AH) is another old source which mentions the name of Malik al-Yarbu’i several times with the title sahib al-shurtah. 33 Though Nasr’s use of this term should be considered as one of the oldest examples of the use of this term in Islamic sources, this still seems to be an application of later, anachronistic terminology to describe the early decades of the Islamic caliphate; this view is supported by the use of the word sahib in Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 37 combination with shurtah here.34 In any case, the accounts of Nasr35 on Yarbu’i which had been narrated later by Ibn Abi al-Hadid (d. 655 AH)36 also present Yarbu’i as one of the companions of ‘Ali and one of the senior commanders of his army who, under the command of ‘Ali, carried out duties such as gathering the armies of Iraq in al-Nukhaylah to move towards Siffin.37 In addition to this military role, it is mentioned in one place that when ‘Ali was departing from al-Nukhaylah towards the battle against Mu‘awiyah, he appointed Yarbu’i in al-Nukhaylah to recruit those who had refused to join the army, and to behead them if they disobeyed. Even Nasr speaks about the murder of an individual by Yarbu’i for the crime of not joining the army in Iraq and the upheaval which took place by his kinsfolk after his murder.38 However, another account by Nasr states that Yarbu’i made ‘Ali aware of the correspondence of a person suspected of espionage with Mu‘awiyah, who later on was sent to exile in al-Ruha.39 In total, from the above reports, it can be concluded that Yarbu’i, in addition to military responsibilities on the battlefield, had the responsibility of maintaining security off the battlefield, which of course would be part of the disciplinary duties of the shurtah. As for the second person in the account from Ibn Khayyat – that is, Ma‘qil ibn Qays al-Riyahi – some of the oldest sources mention him as the head of shurtah of ‘Ali. Ma‘qil, like Malik, was from the tribe of Bani al-Yarbu’. The account of Ibn Khayyat is confirmed by Ya‘qubi who mentions that Ma‘qil was the head of the shurtah of ‘Ali (‘ala shuratihi Ma‘qil).40 In addition to Ya‘qubi, Ibn ‘Asakir41 (d. 571 AH) and Ibn Hajar42 both narrate from the famous historian Haytham ibn ‘Adi al-Ta’i (d. 207 or 209 AH) that Ma‘qil was the head of the shurtah of ‘Ali (sahib shurtat ‘Ali). As for the character of Ma‘qil, the sources describe him as an influential figure among the Arabs of Kufa and as one of the sincere, firm companions and eminent advisors of ‘Ali. Without doubt, he was one of the senior commanders of ‘Ali’s army43 since, before the departure of the army of Iraq to Siffin, ‘Ali dispatched him there with three thousand forces. 44 Also, under the command of ‘Ali, Ma‘qil suppressed the political and military revolts of al-Kharit ibn Rashid al- Naji (around Ahwaz and Fars) and Hilal ibn ‘Alqamah (in Masabadhan). 45 The other important mission of Ma‘qil during the caliphate of ‘Ali was to leave Kufa for the Hijaz to prevent the armies of Mu‘awiyah from controlling the Hijaz and the hajj.46 In addition, Ibn Hajar al-‘Asqalani mentions Sa‘id ibn Sariyyat ibn Murrah from Bani Ghadirat ibn Hubshiyyah as the head of shurtah of The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 38 ‘Ali.47 Tha‘labah ibn Yazid Himmani from the clan of the tribe of Bani Himman of Bani Tamim is another person who is mentioned by Ibn Jawzi (d. 597 AH)48 and Dhahabi49 as the commander of the shurtah of ‘Ali. Unfortunately, there is not much recorded about these individuals. Shurtah, shurtat al-khamis, or shurtat al-jaysh? Along with these accounts about the shurtah during the caliphate of ‘Ali, there are other accounts which are also noteworthy. Most of these remaining accounts are about two individuals: al-Asbagh ibn Nabatah and Qays ibn Sa‘d ibn ‘Ubadah Khazraji. The most relevant point here about these two people is a contradiction concerning their relation with the three organizations of the shurtah, shurtat al-khamis and shurtat al- jaysh. Some accounts connect Asbagh with the shurtat al-khamis. For example, Ibn Khayyat, 50 the oldest source which distinguishes the shurtah from the shurtat al-khamis, differentiates the two by stating that Asbagh was the head of the shurtat al-khamis while Malik al-Yarbu’i and Ma‘qil al-Riyahi were the heads of the shurtah of ‘Ali. In addition to Ibn Khayyat, Nasr ibn Muzahim (d. 212 AH) also describes Asbagh as the head of the shurtat al-khamis.51 While Shi‘a traditionalists such as al-Tusi (d. 460 AH)52 and al-Mufid (d. 413 AH)53 describe Asbagh only as one of the members of the shurtat al-khamis and do not refer to his position as the head of it, in contrast, Ibn Sa‘d in a tradition describes Asbagh as a Shi‘a and as the head of the shurtah of ‘Ali (sahib shurtat ‘Ali). 54 The other notable point about Asbagh is his closeness to ‘Ali as one of his firm companions and his effective presence in the battles during his caliphate, in particular the Battle of Siffin.55 There are more accounts about Qays than Asbagh. However, at the same time, these accounts are more perplexing and contradictory. There is an account in al-Gharat by al-Thaqafi al-Kufi (d. 283 AH), 56 also related by Ibn Athir (d. 630 AH),57 which includes a commandment by ‘Ali addressed to Qays on his arrival to Kufa and appointment as the head of shurtah after his disposal from the government of Egypt. At the same time, another account in Thaqafi’s work introduces Qays as one of the commanders of the shurtat al-khamis during the caliphate of ‘Ali.58 Ibn Sa’d also mentions Qays as the commander of the shurtat al- khamis during the caliphate of ‘Ali.59 In contrast, Tabari presents Qays as the commander of the shurtat al-khamis at the end of the short period of caliphate of Hasan;60 when, after the self-made peace of ‘Ubayd Allah ibn ‘Abbas (the commander of Hasan’s army) with Mu‘awiyah – which Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 39 was a form of treason to the Iraqi army – Qays was chosen as commander by the shurtat al-khamis in the subsequent leadership vacuum. In addition, Ibn ‘Asakir (d. 571 AH) states that ‘Ali summoned Qays to Kufa before himself after his disposal from governing Egypt and appointed him as the head of the vanguard of Iraq’s army which was named the shurtat al-khamis. 61 Another account in Ibn ‘Asakir’s work says that when Hasan became caliph, in order to start a military confrontation against Mu‘awiyah, he appointed Qays as the commander of part of the army of Iraq, which numbered twelve thousand soldiers and were called the shurtat al-khamis.62 Though these accounts about Qays have some contradictions, they show that Qays – like the other individuals mentioned – was one of the eminent advisors and companions of ‘Ali and a serious opponent of Mu‘awiyah. Moreover, in most of the political clashes during the caliphate of ‘Ali which were mainly between two parties of ‘Ali and ‘Uthman (and Bani Umayyah), Qays fully believed in the lawfulness and rightfulness of the policies of ‘Ali and was assisting him on the basis of this belief. 63 Interestingly, a number of Sunni traditions express tremendous admiration for Qays and consider his position before the Prophet to have been equal in status to that of the sahib al-shurtah before an amir.64 However, biographical works about the Prophet do not describe Qays as taking an active role during the Prophet’s lifetime. Therefore, it seems that these traditions were fabricated due to the special position of Qays during the caliphate of ‘Ali and the caliphate of Hasan. As will be shown, the ambiguity regarding the governmental position of Asbagh and Qays and their relation with shurtah and shurtat al-khamis was largely due to the lack of a clear understanding of the shurtah versus the shurtat al-khamis. Now it is time to study the accounts about the shurtat al-khamis in order to present a clear analysis of and conclusion regarding this matter. In the early sources, there are two types of information on shurtat al-khamis. The first type includes definitions of the shurtat al-khamis and the identity of this group or organization. The second type includes accounts of political and social events during the caliphate of ‘Ali with references to the presence of members of the shurtat al-khamis and their roles in those incidents. In the first type, in an attempt to define shurtat al-khamis, historians make a connection between an infinitive of the root of sh-r-t meaning ‘to make a pledge or a promise’ with the first part of the term shurtat al- khamis and consider shurtat al-khamis to have been derived from that root. It seems that the oldest example of this definition was presented by The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 40 Ibn Nadim (d. 385 AH) who offers a definition of ‘Shi’a’ during the time of the caliphate of ‘Ali.65 He also categorises the Shi‘a of that age and, in this classification, identifies shurtat al-khamis as a specific group of Shi‘a who made an oath to ‘Ali to assist him, and to whom ‘Ali had given a promise of paradise in exchange for their loyalty. In the other definition, al-Mufid narrates a tradition with a similar content to the definition of Ibn Nadim – that is, regarding an oath between ‘Ali and his companions.66 However, here, the oath is not only between ‘Ali and the members of the shurtat al-khamis; instead, it is a promise between ‘Ali and all his companions. In contrast, the previous and subsequent traditions in the text speak about the shurtat al-khamis, and so it is understood that the shurtat al-khamis were also part of those companions. The other definition of shurtat al-khamis is originally given in a tradition narrated by Asbagh in Ikhtiyar Ma‘rifat al-Rijal of Tusi in which Asbagh says the name shurtat al-khamis came from an oath between its members and ‘Ali.67 The tradition says that the individuals of the shurtat al-khamis had promised to keep their loyalty towards ‘Ali and to sacrifice their lives if necessary, and that ‘Ali had promised them victory. In addition, Ibn ‘Asakir believes that the shurtat al-khamis were individuals from the army of Iraq who had made a vow with each other to continue the conflict against Mu‘awiyah until they gave up their lives.68 As is clear, all these definitions neglect to explain the second part of the phrase shurtat al-khamis – namely, al-khamis; this suggests that these definitions are incorrect. As was seen, there are some similarities among these four definitions. In particular, all of them speak of an oath. However, they also have significant differences, such as disputes about the nature of the shurtat al-khamis, the precise content of ‘Ali’s promise, the reason why they made the oath, and who exactly was involved. Without doubt, such differences can be another serious obstacle in accepting these definitions as acceptable definitions of shurtat al-khamis. However, it is likely that these accounts have a real historical origin in a vow between ‘Ali and at least one group of his faithful companions, or between his companions, in the tough conditions of encountering powerful opponents. For even Nasr ibn Muzahim – without referring to the shurtat al-khamis, introduces Asbagh as one of the individuals who had made a serious oath to assist ‘Ali.69 In addition, we learn from the tradition of Mufid that some of the shurtat al-khamis participated in such a vow. It seems that this very issue – that is, the inclusion of the shurtat al-khamis in this vow – gave Muslim historiographers a good excuse to refer to the similarities of these words in their effort to Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 41 present a definition of shurtat al-khamis, although they ended up being misleading. Nonetheless, such definitions are revealing with regards to mediaeval Muslim historiography. Islamic traditionalists and historians chronicled the initial decades of Islam by collecting traditions and accounts from that time and obsessively maintaining and narrating them without any criticism or historical contextualization. Therefore, they were perplexed when they came across the term shurtat al-khamis in old traditions and accounts. Since there was almost no historical criticism to help to understand the real meaning of this term, they resorted to presenting definitions through their own methods and interpretations. In any case, while historical sources failed to present a clear and acceptable definition of shurtat al-khamis, early Arabic dictionaries and other historical evidence can be used to find another definition for it. The definition which is derived from them is the most reliable; apart from the fact that, linguistically, it makes sense, it resolves the disputes about the shurtat al-khamis, shurtat al-jaysh, and shurtah in the historical sources. Clearly, the term shurtat al-khamis is an idafah (genitive construction) composed of shurtah and al-khamis. To understand the meaning of this term, it is better to study the semantic meanings of these two words separately. According al-‘Ayn by Farahidi (d. 175 AH),70 the oldest extant dictionary, the root word sharata has two meanings: ‘making a contract or a promise’ and ‘the beginning of everything or every phenomenon’. Most likely, the first meaning is the one used in the above-mentioned definitions of the term of shurtat al-khamis. However, given the critiques (expressed above) of the use of this meaning in the phrase shurtat al- khamis, it is better to apply its second meaning. Regarding ‘al-khamis’, Farahidi and Jawhari (d. 393 AH) in al-Sihah say it means ‘al-jaysh’ (‘the army’) because the army is divided into five parts: the vanguard, the right wing, the left wing, the ‘stem’ (saqah), and the ‘heart’ (qalb); therefore, it was called al-khamis or ‘the five parts’.71 So, if we consider this phrase an idafah of these two words with these two meanings, it would literally mean ‘the vanguard of the army’. That is to say, out of the five mentioned parts in the army, its vanguard was called the shurtat al-khamis. This definition of shurtat al-khamis is both linguistically and historically acceptable. Historical accounts confirm it in two ways. First, historical accounts refer to the military nature of the shurtat al- khamis by describing it as part of the Iraqi army or even directly referring to it as the vanguard of the Iraqi army. One of these accounts The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 42 is from Tusi who holds that the shurtat al-khamis was a group of five to six thousands soldiers of ‘Ali’s army.72 In other accounts, Qays, who was one of the most outstanding commanders of ‘Ali’s army and who took part effectively in important battles such as Siffin,73 is described as the head of the shurtat al-khamis in the army of ‘Ali.74 In general, the shurtat al-khamis had a very active role in the accounts of the battles of ‘Ali.75 As mentioned earlier, Tabari states that Qays, in the absence of a commander, was appointed as the commander by the shurtat al-khamis which was a determining part of the army. 76 In addition, the two accounts by Ibn ‘Asakir which were mentioned earlier provide notable details. According to the first account, ‘Ali appointed Qays as the commander of ‘the vanguard of the Iraqi army or the shurtat al- khamis’.77 According to the second one, Hasan appointed Qays as the ‘vanguard of the Iraqi army or the shurtat al-khamis’ which had twelve thousand members.78 Considering the shurtat al-khamis as the vanguard of the army will also help us to understand the meaning of the term shurtat al-jaysh which is found in some other accounts concerning the caliphate of ‘Ali and Hasan. Now, it is obvious that, despite a small difference, the two terms shurtat al-khamis and shurtat al-jaysh in practice mean the same thing and refer to the same part of the Iraqi army. The first account about shurtat al-jaysh is narrated by Ibn Jawzi79 who considers Qays to be the head of an important division of the army of Iraq which was called shurtat al-jaysh. Ibn ‘Asakir also gives the same information about Qays and shurtat al-khamis; 80 his account is significant because it is similar to another account in the same work in which the term shurtat al-khamis has been used instead of the term shurtat al-jaysh.81 In addition to these, there is another account by Ibn Hajar which describes the shurtat al-jaysh of Iraq as the vanguard of the army of Hasan which had been under the command of Qays.82 After clarifying the nature of the shurtat al-jaysh, a study of the shurtat al-khamis will also clarify the nature of the shurtah. First, we will study some accounts which show that, in addition to military duties, the shurtat al-khamis used to have some disciplinary functions. Our information in this field is very limited; however, the information available has a high level of authenticity. There are some traditions regarding this in the early Shi‘a sources; for instance: One day in Kufa, ‘Ali came into [the bazaar] along with some members of the shurtat al-khamis who were accompanying Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 43 him, and then he prohibited sellers from selling some goods such as [the meat of] eels which was unlawful in his view.83 According to some other traditions, in Kufa, ‘Ali commanded Qanbar, his famous servant, to call some individuals of shurtat al- khamis to deal with the crimes of those who had committed actions against the shariah. Then, each member of the shurtat al-khamis captured one of the offenders and tied him to a column so that ‘Ali could judge him.84 Another tradition says that, in a case of dealing with offenders in an action against the divine law in Kufa, ‘Ali summoned some individuals of the shurtat al-khamis to capture the offenders and bring them to the suburb of Kufa for judgment and punishment. 85 In addition, Thaqafi Kufi narrates an account which says that, after some residential regions of Sawad were looted, the shurtat al-khamis, led by Qays, were dispatched to that region at ‘Ali’s command, defeated the looters, and made them flee to the Syrian borderlands.86 These traditions, including Thaqafi’s account, clearly demonstrate some of the disciplinary functions of the shurtat al-khamis, including its duties in urban environments and off the battlefield. But, obviously, these duties were exactly the duties of the shurtah. If we claim that a separate organization called the shurtah had been founded during the caliphate of ‘Ali or even before him, then it would be necessary to ask why this organization had given its duties to another organization; namely, the shurtat al-khamis. This problem can only be resolved by determining that the shurtah, shurtat al-khamis, 87 and (of course) the shurtat al-jaysh were the same thing. Considering these three to have been one and the same not only solves this problem but also solves other problems which arise during a study of the shurtah and the shurtat al-khamis during the caliphate of ‘Ali, especially when considering that shurtat was used as an abbreviation for shurtat al-khamis for ease of speech in those days. Taking each of the three terms to mean the same thing brings other things to light. As has been mentioned, historical sources speak primarily about the military aspect of the shurtah. Figures such as Arhabi, Yarbu’i, Ma‘qil, and most importantly, Asbagh and Qays, are simultaneously described as heads of the shurtah of ‘Ali and as commanders of the Iraqi army. Additionally, in the accounts related to the battles of caliphates of ‘Ali and Hasan, these figures have a frequent, active, and determining presence. Even regarding Asbagh and Qays, the sources declare that they were heads of the shurtah, The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 44 shurtat al-khamis, and the shurtat al-jaysh, as well as being commanders of the army. In addition to the above, the old Arabic dictionaries support the view that all three terms refer to the same thing. The strongest evidence is found in Lisan al-‘Arab by Ibn Manzur (d. 711 AH),88 where, in the definition of shurtah, he uses the term shurtat al-khamis and continues by saying that ‘the shurtah forces are the vanguard of the army or the first group of army which starts the war’. Moreover, Farahidi refers to the shurtah not only as a part of army but as its elite forces.89 Additionally, the identicalness of the shurtah and shurtat al-khamis is also supported by the role of the Shi‘a and ‘Ali’s companions in both of them. As we know, in different sources and, in particular, in the written heritage of the Shi‘a, the shurtat al-khamis is described as the most important force of ‘Ali, and its members are considered to be the most outstanding of his Shi‘a.90 However, based on historical accounts, the presence and active role of the close companions of ‘Ali and individuals with an obvious inclination towards Shi‘ism is found even more in the accounts related to the shurtah than specifically the shurtat al-khamis. As it was seen, all individuals connected with shurtah of ‘Ali – in particular, figures such as Wahb al-Khayr, Arhabi, Yarbu’i, Ma‘qil, and also Asbagh and Qays – were prominent companions of ‘Ali and believed in his right and truthfulness. These individuals’ inclination towards Shi‘ism was so notable that some of the Sunni traditionalists considered them to be weak and unreliable narrators of traditions, just as Ibn Sa’d had considered the traditions narrated by Asbagh to be weak, 91 and the traditions narrated by Tha‘labah ibn Yazid were rejected by the Sunnis.92 Now that the connection between the vanguard of Iraq’s army, the shurtah, the shurtat al-khamis, and the shurtat al-jaysh has been established, there remains the question of the number of its members. As seen above, sources differ on this matter. The smallest number given is three thousand under the command of Ma‘qil who was dispatched to that front before the Battle of Siffin began. Elsewhere, in Shi‘a traditions, this force is identified with the companions of ‘Ali who are said to number five to six thousand. 93 However, as was seen, some accounts said they numbered twelve thousand under the commander of Qays. And, Ibn ‘Asakir holds that they were forty thousand.94 While these figures may be exaggerated, there is no doubt that the shurtat al-khamis was a significant part of the army. However, it seems that their number was not fixed and changed in accordance with Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 45 conditions. For instance, during the caliphate of Hasan and under the commandership of Qays, when preparing for the war against Mu’awiyah, it totalled twelve thousand members; but when it was dispatched towards the front before the Battle of Siffin and under the commandership of Ma‘qil, it was comprised of three thousand members. The lack of a fixed number suggests that this force – despite definitions which say the members of the shurtah wore special badges and uniforms95 – did not have special badges or uniforms during the time of the caliphate of ‘Ali, because having a special uniform would suggest that they had a fixed number. The adoption of a special uniform occurred later after the evolution of the shurtah, at the earliest during the Umayyad period and definitely during the Abbasid period, but not during the caliphate of ‘Ali. Conclusion While some historical accounts refer to a shurtah during the caliphate of ‘Umar and the caliphate of ‘Uthman and describe a force with duties similar to those of the shurtah in those days, the application of the term of shurtah with regards to such a force during that time is not historically correct. However, despite doubt about the existence of a governmental organization called the shurtah before the caliphate of ‘Ali, historical evidence shows that an organization of a military, disciplinary and governmental nature which was called the shurtat al- khamis or shurtat al-jaysh existed during the caliphate of ‘Ali. These expressions were abbreviated as shurtah, and this organization was the progenitor of the later governmental organization of the shurtah in Islamic civilization. Therefore, the accounts in which the terms shurtat al-khamis or shurtat al-jaysh are used are the most authentic accounts which refer to the existence of an organization called the shurtah during the caliphate of ‘Ali; however, other accounts which refer to the shurtah during the caliphate of ‘Ali also provide information on the same organization. It can be deduced that from the period of the caliphate of ‘Ali, the shortened expression shurtah was used instead of shurtat al-khamis or shurtat al-jaysh for ease of speaking. The use of shurtah instead of shurtat al-khamis or shurtat al-jaysh became more common after the caliphate of ‘Ali. Eventually, this group was only referred to as the shurtah, and this led to a misunderstanding about the early meaning of shurtah in the following centuries. In fact, during the caliphate of ‘Ali, the shurtah – The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 46 or, more precisely, the shurtat al-khamis – was the vanguard of his army, or the army of Iraq. Thus, when the need arose to dispatch forces to the battlefront or to serve the needs of the government, the shurtat al-khamis was the force that was most prepared to assist. While the shurtah during the caliphate of ‘Ali had a number of specific features, the most important was its members’ belief in the rightful position of ‘Ali. It is likely that this relationship between the members of the shurtah and their leader shaped the later emphasis among Muslims on the necessity of a sincere relationship between the sahib al-shurtah and the amir.96 The special relationship between ‘Ali and his companions in the shurtat al-khamis, along with the special conditions of his caliphate, such as the battles against various opponents, the establishment of the centre of his caliphate in Iraq, and the complexity of administering the new Islamic cities in that region, as well as the deep-rooted, ancient traditions there, made ‘Ali rely on the assistance of these faithful forces in order to manage the caliphate in accordance with the Islamic tradition. This made the shurtat al-khamis into a very active force both in the city and on the battlefront and helped it become fixed in the evolving administrative organization of the Islamic caliphate. The formation of the shurtah and its canonization in the administrative organization of the caliphate of ‘Ali resulted in the shurtah becoming a permanent fixture in the administrative organization of the Islamic caliphate even after the establishment of the Umayyad caliphate and the transfer of the centre of caliphate from Iraq to Syria. After the advent of the Umayyad caliphate, the distinguishing features of the shurtat al-khamis changed; for instance, it was no longer limited to loyal supporters of ‘Ali, nor was it shaped by the special circumstances that ‘Ali faced during his caliphate. During the Umayyad caliphate, the simplicity of the earlier caliphates was lost and, in the complex administration that followed, a new shurtah organization evolved from the earlier shurtat al-khamis which existed during the time of ‘Ali. The difference between the two shurtahs was such that most Muslim authors in the following decades and centuries could not imagine any historical link between the shurtah and the shurtat al- khamis. Therefore, they began to present different definitions of the shurtah and shurtat al-khamis and tried to describe them as different organizations. However, it has been shown here that this was not truly the case, and in fact the shurtah and the shurtat al-khamis were one and the same. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 47 Table of Key Transliterated Terms Term Appearing in Text Arabic/Persian Term With Diacritics Shurtah شرطة ShurÔah Sahib al-shurtah صاحُب الشرطة ÑÁÎib al-shurÔah Sahib shurat صاحُِب شَُرط ÑÁÎib shuraÔ Shurtat al-khamis شرطة الخميس ShurÔat al-khamÐs Shurtat al-jaysh شرطة الجيش ShurÔat al-jaysh Shurti شُْرطي ShurÔÐ Sharata َشََرط SharaÔa Sharattuhu ُشََرطُته SharaÔtuhu Kana min shurat ‘Ali كان من شَُرِط علي KÁna min shuraÔ ÝAlÐ Hajib حاجِب ÍÁjib Notes 1 This research was supported in part by grant number 387007-1391from the Imam Khomeini International University. 2 See ‘Abd Allah ibn Muhammad ibn al-Sayyid al-Batlayusi (d. 521 AH), Iqtidab: Sharh Adab al-Katib I, ed. M. Saqa and H. ‘Abd al-Majid (Cairo: al-Hay’at al-Misriyyah al- ‘Ammah, 1981), 159. 3 Ibid. Also, for samples of announcing the government’s orders in Abbasid Baghdad see ‘Abd al-Rahman ibn ‘Ali ibn al-Jawzi (d. 597 AH), al-Muntazam V, ed. Muhammad ‘Ata and Mustafa ‘Ata (Beirut: Dar al-Kutub al-‘Ilmiyyah,1412 AH), 171 (in the section on permitting fireworks and feasting on Nawruz); VI, 276 (in the section on announcing the prohibition on the supporters of Barbahari gathering during the time of their unrest). 4 Ahmad ibn Wadih Ya‘qubi (d. 292 AH), Tarikh II (Beirut: Dar Sadir, c. 2005), 159. A hajib was a courtier or a military official who managed a caliph’s or sultan’s meetings with officials and people. 5 Muhammad ibn Jarir Tabari (d. 310 AH), Tarikh al-Umam wa al-Muluk II (Beirut, 1407 AH), 267. The poem reads as follows: Danna ‘alayna Abu Hafs bi-na’ilihi Wa kullu mukhtabitin yawman lahu waraqu Ma zala yurhiquni hatta khuthaytu lahu Wa hala min duni ba‘di al-raghbati al-shafaqu Lamma rahibtu Aba Hafsin wa shurtatahu (sharrattuhu/sharattuhu) Wa al-shaykhu yafza‘u ahyanan fa-yanhamiqu 6 Muhammad al-Sharif al-Rahmuni, Nizam al-Shurtah fi al-Islam (Beirut: Dar al-Kutub al-‘Arabiyyah, 1983), 37-38; Ahmad Sha’ib, al-Tarikh al-Shi‘r al-Siyasi ila Muntasif Qarn al- Thani al-Hijri (Cairo: Maktabah al-Nihzah al-Misriyyah, 2nd ed, 1953), 114. 7 Muhammad ibn Sa‘d (d. 230 AH), al-Tabaqat al-Kubra IV (Beirut: Dar Sadir, c. 1965), 32. The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 48 8 Ahmad ibn Wadih Ya‘qubi, Tarikh II, 173; Khalifat ibn Khayyat al-‘Usfuri (d. 240 AH), Tarikh, ed. A. al-‘Umari (Damascus and Beirut, 1397AH),179; Ahmad ibn ‘Ali ibn Hajar al-‘Asqalani, al-Isabah fi Tamyiz al-Sahabah VI, ed. A. al-Bajawi (Beirut: Dar al-Jayl, 1992), 229. Ibn Hajar has called him ‘Muhajir ibn Qunfudh al-Taymi’ which is a confusion since Muhajir was of more significant fame than ‘Abd Allah in the Islamic sources. 9 Khalifat ibn Khayyat, Tarikh, 179. 10 Tabari, Tarikh al-Umam wa al-Muluk II, 637. 11 Yaqut, Mu‘jam al-Buldan III (Beirut: Dar al-Fikr, c. 1975), 135. 12 This is doubtful because numerous accounts about ‘Umar and the other Rashidun Caliphs show them as having a normal relationship with ordinary people. Additionally, some traditions say that Prophet and the Rashidun Caliphs forbade their government officials to have a doorkeeper. For more information see Ahmad Rida Khidri, ‘Hajib’ in Danishnamih Jahan-i Islam (n.p.: n.d.), 283-285. 13 For example, Arab historiographers used the two words hajib and shurtah with reference to the Pahlavi administrative organization of Sassanid Iran (224-651AD). See, for instance, ‘Amr ibn ‘Umar Jahiz, Rasa’il al-Jahiz (risalah 12, Kitab al-Hijab) II, ed. A. Harun (Cairo: Maktabat al-Khanji, 1384 AH), 39; Abu ‘Abd Allah Muhammad Jahshiyari (d. 331 AH), Kitab al-Wuzara’ wa al-Kuttab (Cairo, 1357AH), 2. 14 Ahmad ibn Yahya Baladhuri (d. 279 AH), Ansab al-Ashraf II, ed. I. ‘Abbas (Beirut: 1400 AH), 346. 15 Ahmad ibn Muhammad ibn Khallikan (d. 681 AH), Wafayat al-A‘yan wa Anba’ Abna’ al-Zaman VII, ed. I. ‘Abbas (Beirut: Dar al-Thaqafah, 1968), 59-60. 16 Sayf ibn ‘Umar (d. 200 AH), al-Fitnat wa Waq‘at al-Jamal, ed. A. ‘Armush (Beirut: Dar al-Nafa’is, 1391AH), 42-63, 95, 126-137; Muhammad ibn Sa‘d, al-Tabaqat al-Kubra III,71; Khalifat ibn Khayyat, Tarikh, 168-183; Tabari, Tarikh al-Umam wa al-Muluk II, 639, 652, 654, 666, 668,7 00-701; III, 16-24; Muhammad ibn Muhammad Mufid, al-Jamal (Qum: Maktabat al-Dawari, c. 1406 AH), 152 & 178. 17 Two groups of Zuts/Jats and Sababajah/Sayabajah, originally from India or southern Asia, came to Iran in ancient times and mainly inhabited the south and southwest or Khuzistan province. Many were involved in military activities. By the time of the Islamic conquest, some groups of them had come to Basra and even converted to Islam. For more information see Maryam Sadiqi, ‘Jat’ in Da’irat al-Ma‘arif Buzurg Islami XVII (Tehran: 1388 AH (solar)), 592-599. 18 Sayf ibn ‘Umar, al-Fitnat wa Waq‘at al-Jamal, 129, 137; Tabari, Tarikh al-Umam wa al- Muluk III, 24; Mufid, al-Jamal, 152, 178. 19 Muhammad ibn Sa‘d, al-Tabaqat al-Kubra I, 434; VI, 63; Ahmad ibn Hanbal (d. 241 AH), Fada’il al-Sahabah I, ed. W. ‘Abbas (Beirut: al-Risalah Institute, 1403 AH), 303; Ibn Hajar al-‘Asqalani, al-Isabah fi Tamyiz al-Sahabah VI, 626. 20 Ahmad ibn Hanbal, Fada’il al-Sahabah I, 306. 21 Ibid., 80, 84, 156, 266, 303, 369, 375, 527. 22 Shahab al-Din Muhammad Dhahabi (d. 748 AH), al-‘Ibar fi Khabar man ‘Abar I, ed. S. Munjid (Kuwait City: Maktabat al-Hukumat al-Kuwait, 1948), 84. 23 Shahab al-Din Muhammad Dhahabi, Siyar A‘lam al-Nubala’ III, ed. S. Arnaw’wt and M. al-‘Arqasusi (Beirut: 1413 AH), 203. 24 W. P. Heinrichs, ‘Sahib’ in Encyclopaedia of Islam VIII (Leiden: Briil, 1995, 2nded), 831. 25 Ibid. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 49 26 Ahmad ibn ‘Ali Khatib al-Baghdadi (d. 463 AH), Tarikh Baghdad I (Beirut: Dar al- Kutub al-‘Ilmiyyah, c. 1970), 199; Ibn Hajar al-‘Asqalani, al-Isabah fi Tamyiz al-Sahabah VI, 626. 27 Ibn Hajar al-‘Asqalani, al-Isabah VI, 702. 28 Sayf ibn ‘Umar, al-Fitnat wa Waq‘at al-Jamal, 54; Muhammad ibn Sa‘d, al-Tabaqat al-Kubra V, 32-33; Tabari, Tarikh al-Umam wa al-Muluk II, 650; III, 79, 85-87. Regarding Al-Arhabi’s military advice to ‘Ali see Wilferd Madelung, The Succession to Muhammad: A Study of the Early Caliphate (Cambridge: Cambridge University Press, 1997), 218. 29 Dhahabi, Siyar A‘lam al-Nubala’ VI, 354. 30 Baladhuri, Ansab al-Ashraf IV, part 1, 529. 31 Khalifat ibn Khayyat, Tarikh Khalifat ibn Khayyat, 200. 32 For example see Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, ed. A. Harun (Beirut: al-Arabiyyah al-Hadithah Institute, 1382 AH), 132; Abu Hanifah Ahmad ibn Dawud al- Dinawari (d. 282 AH), al-Akhbar al-Tiwal, ed. A. ‘Amr (Beirut: Dar Ihya’ al-Kutub al- ‘Arabiyyah, 1960), 166-167. 33 See Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 4, 121, 133. 34 As Heinrichs in the entry ‘Sahib’ in the Encyclopaedia of Islam (Leiden: Brill, 1997) states, the use of sahib to mean ‘head, ruler and commander’ developed over time; it was not used with this meaning during the Rashidun caliphates. In addition, in the Encyclopaedia of Islam entry on ‘Shurtah’, Nielsen implicitly maintains that the term sahib al-shurtah is related to the early ages of ‘Abbasids. His implicit view is disproven in this article which shows that the shurtah dates back to the times of ‘Ali ibn Abi Talib. 35 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 4, 121, 133. 36 Ibn Abi al-Hadid, Sharh Nahj al-Balaghah III, ed. M. Ibrahim (Beirut: Dar Ihya’ al- Kutub al-‘Arabiyyah, c. 1965), 103, 191, 201, 202. 37 Al-Nukhaylah is a town near Kufa. 38 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 140; Although a similar command is narrated by Abu Hanifah Dinawari (d. 282 AH), his account does not mention anything about beheading the offenders there (see al-Dinawari, al-Akhbar al-Tiwal, 166). 39 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 96-97. 40 Ya‘qubi, Tarikh II, 213. 41 Ibn ‘Asakir, Tarikh Madinat Dimashq LVIIII, ed. A. Shiri (Beirut: Dar al-Fikr, c. 1996), 368. 42 Ibn Hajar al-‘Asqalani, al-Isabah fi Tamyiz al-Sahabah VI, 306. 43 See Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 96, 132, 148, 195; al-Dinawari, al- Akhbar al-Tiwal, 167; Ibrahim ibn Muhammad Thaqafi Kufi, al-Gharat, ed. S. al- Muhadith (Iran: Bahman printers, c. 1360AH (solar)), I, 351-352, 355, 358; II, 638-672, 771. 44 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 148; al-Dinawari, al-Akhbar al-Tiwal, 167; Tabari, Tarikh al-Umam wa al-Muluk III, 72. 45 Thaqafi Kufi, al-Gharat II, 771; Ya‘qubi, Tarikh II, 194-195; Tabari, Tarikh al-Umam wa al-Muluk III, 137-144; Muhammad ibn Muhammad ibn Athir (d. 630 AH), al-Kamil fi al-Tarikh III, ed. A. ‘Abd al-Qadi (Beirut: Dar al-Kutub al-‘Ilmyyah, 1995), 142. 46 Ibn ‘Asakir, Tarikh Madinat Dimashq LVIIII, 367. 47 Ibn Hajar al-‘Asqalani, al-Isabah fi Tamyiz al-Sahabah III, 257. 48 ‘Abd al-Rahman ibn ‘Ali ibn al-Jawzi (d. 597 AH), Kitab al-Du‘afa’ wa al-Matrukin I, ed. A. ‘Abd al-Qadi (Beirut: Dar al-Kutub al-‘Ilmyyah, 1406 AH), 161. 49 Shahab al-Din Muhammad Dhahabi (d. 748 AH), Mizan al-I‘tidal fi Naqd al-Rijal I, ed. A. Bajawi (Cairo: n.p., 1963-1964), 371. The Establishment of the Shurtah A. Ashtari Tafreshi, A. Bayat & F. Ahmadvand 50 50 Khalifat Ibn Khayyat, Tarikh, 200 51 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 406. 52 Abu Ja‘far Muhammad ibn Hasan al-Tusi, Ikhtiyar Ma‘rifat al-Rijal I, ed. Mirdamad, M. Husayni, and S. Raja’i (Qum: Al al-Bayt Institute, 1404 AH), 321. 53 Muhammad ibn Muhammad Mufid, al-Ikhtisas, ed. A. Ghaffari (Qum: Jama‘ah al- Mudarisin fi al-Hawzah al-‘Ilmiyyah, c. 1360 AH (solar)), 65. 54 Muhammad ibn Sa‘d, al-Tabaqat al-Kubra II, 225. Ibn Sa‘d also says that the traditions narrated by Asbagh should be considered weak. This is evidence of Asbagh’s Shi‘a inclinations. (Ibid.) 55 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 406, 442-443; Muhammad ibn Sa‘d, al- Tabaqat al-Kubra VI, 225; Ya‘qubi, Tarikh II, 214. 56 Thaqafi Kufi, al-Gharat I, 257. 57 Ibn Athir, al-Kamil fi al-Tarikh III, 226. 58 Thaqafi Kufi, al-Gharat II, 489. 59 Muhammad ibn Sa‘d, al-Tabaqat al-Kubra VI, 52. 60 Tabari, Tarikh al-Umam wa al-Muluk III, 168. 61 Ibn ‘Asakir, Tarikh Madinat Dimashq XLIX, 428. 62 Ibid., XIII, 262. 63 For example see Thaqafi Kufi, al-Gharat I, 209, 223, 257; Muhammad ibn Jarir ibn Rustam Tabari Amuli (d. 5th century AH), Dala’il al-Imamah (Qum: al-Bi‘thah Institute, 1413AH), 58; Ibn ‘Asakir , Tarikh Madinat Dimashq XLIX, 428. About Qays’s loyalty towards ‘Ali, see also Madelung, The Succession to Muhammad, 35. 64 For example see Muhammad ibn Isa Tirmidhi (d. 279 AH), Sunan al-Tirmidhi V, ed. A. ‘Abd al-Latif (Beirut: 1403AH), 353; Sulayman ibn Ahmad al-Tabarani (d. 360 AH), al- Mu‘jam al-Kabir XVIII, ed. A.al-Salafi (Cairo: Dar Ihya’ al-Turath al-‘Arabi, c.1978), 346; ‘Abd Allah ibn ‘Adi (d. 365 AH), al-Kamil fi Du‘afa’ al-Rijal II, ed. Y. al-Ghazawi (Beirut: Dar al-Fikr , 3rd ed.,1409 AH), 108. 65 Muhammad ibn Ishaq ibn al-Nadim, al-Fihrist (Beirut: 1978), 249. 66 Mufid, al-Ikhtisas, 2-3. 67 Tusi, Ikhtiyar Ma‘rifat al-Rijal I, 321. 68 Ibn ‘Asakir, Tarikh Madinat Dimashq XLIX, 428. 69 Nasr ibn Muzahim al-Minqari, Waq‘at Siffin, 422-423. 70 Khalil ibn Ahmad Farahidi (d. 175 AH), Kitab al-‘Ayn VI, ed. M. al-Makhzumi and M. al-Samira’i (Qum: Dar al-Hijrah, 1409 AH), 234. 71 Ibid., 364; Abu Nasr Jawhari (d. 393 AH), al-Sihah, ed. A. ‘Atar (Beirut: Dar al-‘Ilm, 2nd ed., 1407 AH), II, 672; III, 924. 72 Tusi, Ikhtiyar Ma‘rifat al-Rijal I, 25. 73 See Tabari, Tarikh al-Umam wa al-Muluk III, 168; Abu al-Faraj al-Isfahani (d. 356 AH), Maqatil al-Talibiyin, ed. K. al-Muzaffar (Qum: Dar al-Kitab Institute, 1385 AH), 42, 47; Ibn al-Jawzi, al-Muntazam V, 185-186; Thaqafi Kufi, al-Gharat I, 209, 257; Ibn Rustam Tabari Amuli, Dala’il al-Imamah, 58. 74 Muhammad ibn Sa‘d, al-Tabaqat al-Kubra, VI, 52; Thaqafi Kufi, al-Gharat I, 223. 75 For example see Thaqafi Kufi, al-Gharat I, 120-121; Mufid, al-Jamal, 218. 76 Tabari, Tarikh al-Umam wa al-Muluk III, 168. 77 Ibn ‘Asakir, Tarikh Madinat Dimashq XLIX, 428. 78 Ibid., XIII, 262. 79 Ibn al-Jawzi, al-Muntazam V, 185-186. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 51 80 Ibn ‘Asakir, Tarikh Madinat Dimashq XLIX, 429. 81 Ibid., XLIX, 428. 82 Ibn Hajar al-‘Asqalani, al-Isabah fi Tamyiz al-Sahabah II, 72. 83 Muhammad ibn ‘Ali ibn Husayn ibn Babawayh al-Saduq, Kamal al-Din wa Tamam al-Ni‘mah, ed. A. Ghaffari (Qum: Al-Nashr al-Islami Institute, 1405 AH), 536; Abu Ja‘far Muhammad ibn Ya‘qub al-Kulayni, al-Kafi I, ed. A. Ghaffari (Tehran and Qum: Dar al- Kutub al-Islamiyyah, 1388 AH), 346. 84 Kulayni, al-Kafi VII, 37, 371; Muhammad ibn ‘Ali ibn Husayn ibn Babawayh al- Saduq, Man la Yahduruhu al-Faqih III, ed. A. Ghaffari (Qum,1404 AH), 25; Abu Ja‘far Muhammad ibn Hasan al-Tusi, Tahdhib al-Ahkam VI, ed. S. al-Kharsan and M. Akhundi (Tehran: n.p., 1365AH (solar)), 316. 85 Kulayni, al-Kafi IV, 182. 86 Thaqafi Kufi, al-Gharat II, 489. 87 Yaccov Lev in his article ‘Police’ in Medieval Islamic Civilization: An Encyclopedia intelligently, but very briefly and without any reference to Islamic sources or giving any information about the shurtah or the shurtat al-khamis during the period of the Rashidun Caliphs, has mentioned the possible relation between the shurtah and shurtat al-khamis. Yaccov Lev, ‘Police’ in Medieval Islamic Civilization: An Encyclopedia (New York: Routledge, 2006), 622 88 Jamal al-Din ibn Mukarram ibn Manzur, Lisan al-‘Arab VII (Beirut: Dar Sadir, c. 1955), 329-330. 89 Farahidi, Kitab al-‘Ayn VI, 234. 90 For example see Tusi, Ikhtiyar Ma‘rifat al-Rijal I, 24-25 & 60; Mufid, al-Ikhtisas, 2-3,7, 65. 91 Muhammad ibn Sa‘d, al-Tabaqat al-Kubra II, 225. 92 Muhammad ibn ‘Amr ‘Aqili (d. 322 AH), Kitab al-Du‘afa’ al-Kabir, part 1, ed. A. Qal‘aji (Beirut: Dar al-Kutub al-‘Ilmyyah, 1404 AH), 178; Ibn al-Jawzi, Kitab al-Du‘afa’ wa al-Matrukin I, 161; Maghlatay ibn Qalij (d. 762 AH), Ikmal Tahdhib al-Kamal fi Asma’ al- Rijal III, ed. A. ibn Muhammad and U. ibn Ibrahim (Cairo: al-Faruq al-Hadithah, 1422 AH), 101. 93 For example see Tusi, Ikhtiyar Ma‘rifat al-Rijal I, 25. 94 Ibn ‘Asakir, Tarikh Madinat Dimishq XLIX, 429. 95 For example see Abu Nasr Jawhari, al-Sihah III, 1136; Ibn Manzur, Lisan al-‘Arab VII, 329-330; Tusi, Ikhtiyar Ma‘rifat al-Rijal I, 25. 96 For more information see Muhammad al-Sharif al-Rahmuni, Nizam al-Shurtah fi al- Islam, 100-107. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 53 The Shi‘a of Baghdad at the time of the ‘Abbasid Caliphs and the Seljuq Sultanate (447-575 AH) M O H A M M A D T A H E R Y A ’ G H O U B I University of Isfahan, Iran A S G H A R M O N T A Z E R O L G H A E M University of Isfahan, Iran ABSTRACT: After the fall of the Buyids at the hands of the Seljuq Turks and the Seljuqs’ entry into Baghdad, the apparatus of the ‘Abbasid caliphs and the Sunnis once again gained control of Baghdad. However, this should not be considered as having been to the downfall or detriment of the Shi‘a, because it is in this period that we come across three powerful and influential forces in Baghdad: first, the ‘Abbasid caliphs and the Sunnis; second, the Seljuqs; and third, the Shi‘a. Despite the fact that the Seljuqs were followers and defenders of the Sunnis, their relationship with the ‘Abbasid caliphs had many ups and downs which saw them turn from allies to foes over time. Similarly, the position of the Seljuqs in relation to the Shi‘a was not such that they felt the Imami Shi‘a were a force that acted in opposition to them; rather, in certain instances, the Shi‘a would be treated favourably, peaceably, and respectfully by the Seljuq rulers. In this article we aim to show that in the period when the Seljuqs ruled Baghdad, the Shi‘a were recognized as a third effective power broker in the political and social scene, and there was no clear unified stance between the caliphs and the sultanate against the Shi‘a. KEYWORDS: Shi‘a, Baghdad, Seljuqs, ‘Abbasids, Sunnis Introduction Baghdad enjoys a particular importance in Islamic history because of its political and cultural standing in the Islamic world due to its long-time The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 54 status as the centre of the ‘Abbasid caliphate. The ‘Abbasid caliphs chose Baghdad as their administrative capital, and it remained their centre until the year 656/1258 when it fell to the Mongol Hulagu Khan. Although the ‘Abbasids had used the slogan ‘the contented one from the progeny of Muhammad’ (al-Rida min Al Muhammad, referring to the eighth Imam, Imam ‘Ali al-Rida) in order to gain the support of the Shi‘a and the Iranians against the Ummayads, very soon after their triumph they became enemies of the Shi‘a and began supporting Sunni doctrines. Baghdad was host to followers of different Islamic schools of law, including the four schools of the Sunnis (Shafi‘i, Hanbali, Maliki, and Hanafi) and the Twelver Shi‘a. Among these, the Shi‘a and the Hanbalis had the strongest presence.1 From the four Sunni schools, the Hanbali school that followed the Ash‘arite theology was in the majority. The formation of the Hanbali school had fundamentally taken place in Baghdad, and this was where most of its adherents could be found.2 The main confrontation of the Shi‘a was thus with the Hanbalis, and they did not have much of a problem with the other Sunni schools. Rather, other schools like the Shafi‘is even had close ties with the Shi‘a. The Hanbalis were opposed to the open propagation of Shi‘ism, and this opposition at times led to confrontation. The selection of Kufa by Imam ‘Ali (A) as the capital of his caliphate, and the proximity of Kufa to Baghdad resulted in the adoption of the Shi‘a creed by the people of this area. Iraq became the centre of confluence for the Shi‘a, and this influence was augmented by the presence of the Imams of the Shi‘a in Baghdad, especially when the mausoleums of two Shi‘a Imams, the seventh and ninth, came to be located in Baghdad. As a result of the particular beliefs of the Shi‘a, this place became the focal point of their gatherings and settlements. Similarly, the presence of the four representatives of the twelfth Imam, Shi‘a scholars, and well-known Shi‘a families played an important role in spreading Shi‘ism in Baghdad. After the Buyids gained control over Baghdad from 336/947 to 447/1055, because the Buyids propagated the Shi‘a creed, it was natural that this period became a special opportunity for the Shi‘a to strive to propagate their creed. After the fall of the Buyids, the power of the ‘Abbasid caliphs and the Sunnis was revived, and this was facilitated by the entry of the Seljuqs into Baghdad and their victory over the Shi‘a Buyids. In this period, the Shi‘a of Baghdad found themselves alongside two other influential powers, namely the ‘Abbasid caliphs and the Seljuq Turks. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 55 When the Seljuqs took up the novel role as supporters of the caliphs and of the Sunnis, the Shi‘a of Baghdad found themselves in a new situation. The reign of the Seljuqs in Baghdad coincided with the caliphate of eight ‘Abbasid caliphs from the time of Abu Ja‘far ‘Abd Allah Qa’im (422-467/1031-1075) and lasted until the time of Abu Muhammad Hasan Mustadi’ (566-575/1170-1180). Analysing the relationship between the Seljuq Turks and the ‘Abbasid caliphs, and the relationship of each with the Shi‘a of Baghdad, results in a picture of the condition of the Shi‘a during this period. This article aims to answer the question: in the face of these two emerging powers of the caliphs and the sultanate, what situation did the Shi‘a find themselves in? Were the caliphs and sultanate a unified front in opposition to the Shi‘a that made them the target of sectarian bigotry and hatred? First, we will look at the presence of the Seljuqs in Baghdad and the subsequent relationship between the Seljuq sultans and the ‘Abbasid caliphs. We will examine the sectarian politics of the Seljuqs and their impact on the situation of the Shi‘a. We will also delve into the state of the Shi‘a vis-à-vis the ‘Abbasid caliphs and the Sunnis, the sectarian politics of the Seljuqs, and the way in which they related to the ‘Abbasid caliphs. These are some of the determining factors that influenced the situation of the Shi‘a in Baghdad. The politics of dissimulation and acquiescence which were practiced by the Shi‘a in this period yielded positive results for them both politically and socially. In fact, we do not witness any unity between the ‘Abbasid caliphs and the Seljuq sultans against the Shi‘a in this period because the relationship between the Seljuqs and the ‘Abbasids was not a relationship based on their following the same creed; rather this relationship was founded on the mutual benefit that accrued from it and, due to this, their politics revolved around mutual benefit, their relationship often turning from friendly to unfriendly and at times resulting in heightened hostility and all-out war. Aside from the fact that the sectarian politics of the Seljuqs with the Shi‘a was generally a politics of peace and at some point even of respect and honour, the Shi‘a also, in the initial stages of the presence of the Seljuqs in Baghdad, did not take an adversarial stance against them. Rather, they opted for collaboration and co-operation. Another noteworthy point is that what has been narrated about the opposition of the Seljuqs to the Shi‘a does not refer to the Twelver Shi‘a but rather to the Isma‘ili Shi‘a. The difference between these two is clear, as we know that unlike the Isma‘ili Shi‘a, who would undertake armed resistance and carry out The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 56 assassinations, the Imami Shi‘a believed in dissimulation and co- operation. This attitude on the part of the Twelver Shi‘a, the sectarian tolerance of most of the Seljuq sultans, and the rivalry between the caliphs and the sultans created a positive atmosphere for the Shi‘a. As a result, not only did the Shi‘a not get side-lined, but rather they continued to hold sway in the political and social scene in Baghdad and gradually became influential powerbrokers in the government. 1. The Presence of the Seljuqs in Baghdad The chain of the Seljuq Turks started officially with the reign of Tughrul Beg. After the battle of Dandaniqan in 431/1039-40 where Tughrul Beg was able to defeat Sultan Mas‘ud al-Ghaznawi, he set up the Seljuq government in Khurasan and in the following year (432/1040) the ‘Abbasid caliph al-Qa’im bi-Amr Allah officially recognized his government.3 When he entered Baghdad for the second time in 449/1058, al-Qa’im gifted him with the black mantle of the caliphate.4 At this time, changes were taking place in Baghdad. The Fatimids, who established their government in 397/1006 in Tunisia, stood toe-to- toe with the ‘Abbasid caliphs after conquering Egypt and Syria; and because they were opposed to the ‘Abbasids in their ideology and jurisprudence, they were considered rivals and dangerous foes. One of the important events that took place at the end of the Buyid rule and in the beginning of the Seljuq reign was the uprising of Abu al- Harith ibn Arslan al-Basasiri, which resulted in the strengthening of the role of the Seljuqs in Baghdad. Ibn Khallikan and Ibn al-‘Abri relate that Basasiri was a Turkish slave of Baha’ al-Dawlah, the son of ‘Adud al-Dawlah. 5 After joining the army of the Buyids, Basasiri quickly progressed and advanced until he gradually gained control of all of Iraq, and his renown spread to such an extent that in Iraq the sermon was read out in his name. 6 Malik Rahim, the Buyid ruler, and the ‘Abbasid caliphs were ostensibly the rulers, but the de facto ruler was Basasiri.7 Ibn Maslamah, the vizier of the ‘Abbasids, would accuse Basasiri of conspiring with Mustansir, the Fatimid caliph of Egypt, who was the bitter rival of the ‘Abbasids. During this same period, one of the Fatimid missionaries by the name of al-Mu’ayyad fi al-Din al-Shirazi was very active in Iraq.8 After the disagreement between Basasiri and the ‘Abbasid caliphs came about, Basasiri revolted and took control of Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 57 Baghdad. He had with him flags that bore the name of Mustansir, the Fatimid caliph. On Friday the thirteenth of Dhu al-Qa‘dah 450/1059, a sermon was read out in the name of the Fatimid caliph in Jami‘ Mansur.9 Various Sunni sources can be combined to form a narrative which begins with Basasiri ruling over Baghdad for one year, during which time he severely punished his opponents. 10 The caliph was forced to remain outside Baghdad and practically underwent a form of house arrest. At this time, the caliph wrote a letter to Tughril the Seljuq and sought his assistance to subdue Basasiri’s movement. The caliph’s letter of request to Tughril read: ‘By God! A Muslim has been overcome by his enemy and the motto of the Qaramitah has become manifest.’ 11 Tughril responded to the ‘Abbasid caliph’s cry for help; and after he gained victory over his own brother, Ibrahim Yanal, he wrote a letter to Quraysh ibn Badran, who was allied with Basasiri during the conquest of Baghdad and asked him to help the caliph and threatened him. Quraysh obeyed the wishes of Tughril but also requested that Tughril come to his aid as he did not have the strength to confront Basasiri. Tughril sent a contingent of troops to fight Basasiri and in the end Basasiri was defeated and killed; his head was returned to Baghdad and his body was hanged.12 From this point in time, the presence of Seljuqs in Baghdad became official. 2. The relationship between the Seljuq sultans and the ‘Abbasid caliphs The relationship of the Seljuqs with the ‘Abbasid caliphs, which had begun from the time of the advancement of Tughril’s conquests and the establishment of his government in Khurasan, took a new turn after the uprising of Basasiri and the request of the ‘Abbasid caliph to Tughril to enter Baghdad. That which can be deduced from the position of the Seljuqs before their entry into Baghdad and after their entry into Baghdad is that the advancement of the Seljuqs towards Baghdad was imminent, and how much better it was for the caliph to turn this danger into an opportunity by which he could both get rid of the Buyids and quell the dangerous uprising of Basasiri while at the same time establishing a working relationship with Tughril and the Seljuqs, thereby stopping the wave that was rushing towards Baghdad and gaining something with one stroke of political genius. However, this friendly The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 58 relationship between the two only lasted for the first few years and then gradually turned into opposition and intimidation, and in the end it resulted in war and even the imprisonment of the ‘Abbasid caliph. The first sultan to have the sermons in Baghdad read out in his name was Tughril.13 In the year 454/1062 the caliph al-Qa’im gave his daughter’s hand in marriage to Tughril Beg at a time when the caliph was not pleased with this union and Tughril had achieved his wish to marry her through threats and intimidation, so much so that ‘Amid al- Mulk Kunduri, Tughril’s vizier, warned that he would confiscate all the parcels of land that the caliph owned and leave only the lands that were previously in the name of the caliph’s father.14 In the year 456/1064, Sultan Alp Arsalan (455-465/1063-1073) pledged allegiance to the caliph al-Qa’im and thereafter the sermon in Baghdad was read out in his name.15 He later appointed his son Malikshah as crown prince and gave orders that in all the cities, including Baghdad, the sermon should be read out in his name, without seeking the opinion of the caliph about it.16 During the final days of the sultanate of the Seljuq Malikshah, the relationship between the sultan and the ‘Abbasid caliph became very sour, and the sultan proceeded towards Baghdad. He sent a message to the caliph Muqtadi to leave Baghdad and to go wherever he pleased. Muqtadi became upset and sought some time, and after the mediation of Taj al-Mulk Abu al-Ghana’im, the vizier of Malikshah, the caliph was given ten days’ time, and it was during this very time that Malikshah passed away and his army returned to Isfahan.17 After the death of Malikshah in 485/1092, the Seljuq government became divided because of internal wrangling, and the government of the Seljuqs of Iraq separated from the great Seljuq Empire. This separation was pleasing for the ‘Abbasid caliphs because it meant that they felt that they were freed from the pressure of the Seljuqs and were no longer forced to do their bidding, and therefore they started trying to re-establish their power and authority. In 530/1135, Sa‘d al-Dawlah, the governor of Baghdad, was forced to leave Baghdad because of his differences with the supporters of the caliph. He began urging Sultan Mahmud to attack Baghdad, and the sultan agreed and began marching towards Baghdad. A number of skirmishes took place and the caliph took the first opportunity to flee from Baghdad, leading to the voicing of protests by the people. In the end, after many battles, in which the upper hand was with Sultan Mahmud, a peace treaty was enacted between the two sides.18 Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 59 The animosity that formed between the caliph Mustarshid and Sultan Mas‘ud resulted in war, the imprisonment of the ‘Abbasid caliph, and his transfer to Maraghah. However, when sultan Mas‘ud became negligent of the caliph, a group of Batinis carried out the caliph’s assassination. The caliph Mustarshid was buried in Maraghah. Ibn Taqtaqi says: ‘When I travelled to Maraghah in [the year] 697 [AH] I saw his tomb which had been built beautifully.’19 After Sultan Mas‘ud, the caliph Muqtafi sought to take advantage of the internal differences between the Seljuqs and worked to revive the power of the caliphs. In 535/1140, the cloak and staff of the Prophet (S) were sent by Sultan Sanjir to the caliph Muqtafi because these items had been taken by Sultan Mas‘ud after the defeat and imprisonment of the caliph Mustarshid.20 From the events that transpired between the caliphs and the sultans, it becomes evident that the Seljuqs remained allies of the caliphs as long as there was no harm to their interests and in circumstances other than this, they opposed the caliphs. The situation of the Shi‘a of Baghdad was practically linked to these two powers and the type of relationship they had could be affected by either of the two, depending on their weakness and strength, and similarly on the prevailing situation in Baghdad and its inhabitants. In fact, the discord between the sultanate and the caliphs created a somewhat peaceful atmosphere for the Shi‘a, because even though the Shi‘a did not have any ostensible political power, their opponents were not in a state of peace and harmony with one another. Similarly, in these situations that were generally fraught with confrontation, the issue of sectarian differences and religious bigotry – which had been the main source of strife between the Sunnis and the Shi‘a – was not a problem; rather the open rivalry between the caliphs and the sultanate resulted in the creation of a suitable environment for the Shi‘a, such that they were able to benefit from the peaceful atmosphere of Baghdad at that time. 3. A Look at the Sectarian Politics of the Seljuqs and its Effect on the Situation of the Shi‘a Sectarian tolerance. The Seljuqs were followers of the Sunni creed and defended it with zeal. Right from the beginning, they communicated their loyalty to the ‘Abbasid caliphs. Of course, with their entry into Baghdad, which coincided with the fall of the Buyids, the Shi‘a became The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 60 weakened, and the Sunnis once again became the undisputed rulers of Baghdad. But were the sectarian politics of the Seljuqs such that they would put the Shi‘a in a critical situation and cause them to become the targets of their enemies’ sectarian hatred and bigotry? The Seljuqs did not adopt a single and unchanging policy throughout their reign; however, it can be seen that for the most part, they followed and supported Hanafi law and theology. A short while after Tughril’s entry into Baghdad, when Ibn Makula, the Shafi‘i chief justice, passed away, the Hanafi judge Abu ‘Abd Allah Damaghani was appointed to take his place. 21 Similarly, in the year 445/1053, by his order, the Ash‘aris were cursed from the pulpits of Khurasan and senior scholars such as Abu al-Qasim Qushayri (406-502/1015-1108) and Imam al-Haramayn Juwayni (d. 478/1085) were forced to leave Nayshapur and take refuge in the holy sanctuary in Mecca. After Tughril’s death, even though the vizier Nizam al-Mulk tried to reduce the persecution of the Shafi‘is, this policy nevertheless continued, and even the ‘Abbasid caliphs adopted the policy of supporting the Hanafis as a show of respect for the Seljuq sultans. They even appointed Hanafi judges to their courts. Therefore, the sectarian discord between the Sunnis themselves reached its peak and gave rise to intense altercations, such that in 479/1086, the conflicts between the Hanbalis and Ash‘aris led to many deaths on both sides.22 In 475/1082, despite the protection of the police and the Turks, the Hanbalis assassinated the Ash‘ari preacher of the Jami‘ Mansur mosque by stoning him and hitting him on the head with a brick.23 These sectarian differences among the Sunnis sprang forth from the heart of power where the Seljuqs showed support for the Hanafis, and in opposition to them people like Nizam al-Mulk gave their backing to the Shafi‘is and the followers of Shafi‘i would also try and seek the favour of the ‘Abbasid caliphs in order to gain their support. This type of division and opposition among the different groups of the Sunnis resulted in their neglecting the Shi‘a for the most part and a great reduction in altercations between the Shi‘a and the Sunnis; however this should not be mistaken for complete peace with the Shi‘a. Rather, what is meant is that the enemies of the Shi‘a were not united enough to come together and join forces in their planning and action against the Shi‘a. However, restrictions and pressures were put on the Shi‘a, especially from the time that Tughril entered Baghdad, so much so that the Shi‘a were prevented from saying ‘rush to the best of actions’ (hayya ‘ala khayr al-‘amal) in their call to prayers as they normally do, and were forced to say ‘prayer is Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 61 better than sleep’ (al-salat khayrun min al-nawm) in their morning prayer calls. The Sunnis attacked the district of Karkh and effaced all the emblems of the Shi‘a, such as ‘Muhammad and ‘Ali are the best of humankind’ from the doors and walls of Karkh. Criers entered into the city of Karkh and began shouting out couplets in praise of the caliphs, and by the order of the vizier Ibn Maslamah, Abu ‘Abd Allah al-Jallab, the chief of the cloth merchants of Karkh, was hanged outside his shop for the crime of extremism (ghuluw) in his Shi‘a beliefs.24 That which can be deduced from the vicissitudes of this period is that the hardest time for the Shi‘a was the beginning of the Seljuq reign. This was firstly because of the uprising of Basasiri and the initial participation of some Shi‘a in that uprising, and secondly, when the Seljuqs first entered Baghdad, they came as supporters of the caliph. It is obvious that the anti-Shi‘a attitude that was prevalent among the Sunnis and the caliphs at the time did influence the thinking of the Seljuq sultans. This was coupled with the fact that some of the Persian Sunnis had infiltrated the government of the Seljuqs, especially during the reign of Tughril, when they played a pivotal role and were responsible for inciting Tughril to march against Baghdad in order to quash the uprising of Basasiri.25 This approach of the Seljuqs can only be seen in the beginning of their presence in Baghdad, but in the later periods, just as Nizam al-Mulk has recorded in his Siyasatnamih, they adopted a policy of tolerance towards the Shi‘a; and the initial harshness of the Seljuqs was not out of sectarian hatred or bigotry but rather it was in order to firmly establish themselves on the seat of power. 26 Another reason for their heavy- handedness was that the Shi‘a had been accused of aiding the enemies of the Seljuqs. Otherwise, we see that when Tughril first entered Baghdad in 447/1055, he was warmly welcomed by the people of Karkh, and he showed them favours and sent his vizier ‘Amid al-Mulk Kunduri to express his gratitude to them.27 But why did the Shi‘a of Karkh do this? It was because they were suffering hardships during the final days of the reign of the Buyids and the discord between the Shi‘a and the Sunnis had reached its peak during this period. This state of affairs was caused in one way by the weakness of the Buyid leadership, and the people felt that the Seljuqs would be able to bring an end to these altercations. Of course, the policy of dissimulation and acquiescence that was practiced by the Shi‘a could also have been another reason for their co-operation with the Seljuqs because opposition could have brought about disastrous consequences for the Shi‘a. The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 62 Tughril’s harsh dealings with the Shi‘a could therefore have been brought about by two possible reasons: one, the politics of establishing a foothold on authority and two, the fact that some Shi‘a had participated in Basasiri’s uprising, even though they left his side after he had the Friday sermon read in the name of the Fatimid caliph because the Shi‘a of Baghdad were Twelvers and thus did not consider the Fatimid claim to the caliphate to be legitimate. However, the mere fact that there were some Shi‘a in Basasiri’s army gave a negative impression to Tughril, so much so that when Tughril entered Baghdad for the second time, all the Shi‘a went into hiding. The Dar al-‘Ilm Library of Shapur ibn Ardish was burnt down, and the house of Shaykh Tusi was pillaged until he was forced to leave Baghdad.28 On the whole, however, the policy of the Seljuq sultans towards the Shi‘a was one of tolerance and acquiescence. As a general principle, the Seljuqs treated the Imams of the Shi‘a with respect and this form of sectarian politics obviously had an effect on the state of the Shi‘a. Honouring and respecting the Shi‘a creed. What can be deduced from historical sources is that the Seljuq sultans had taken a position of respect and veneration towards the Imams (A). It has been mentioned that Alp Arsalan went for the ritual visitation (ziyarah) of the mausoleum of Imam Rida (A) after the conquest of Khwarzm in Iran.29 It has also been narrated that in 479/1086, after visiting the grave of Abu Hanifah, Malikshah passed by the graves of Ma‘ruf Karkhi and the seventh Imam, did the ziyarah of Salman, and visited the tomb of Ivan of Mada’in, after which he proceeded for the ziyarah of the Imams (A) in Najaf and Karbala.30 During his battle with his brother, Malikshah went for the ziyarah of Imam Rida (A), and just as he himself related to Nizam al-Mulk, his vizier, he prayed to God to make whichever of the two brothers who was more beneficial to the people successful.31 This type of conduct of the Seljuq sultans in relation to the Shi‘a Imams (A) obviously had a direct impact on the Shi‘a themselves. In 475/1082, when Malikshah visited the shrines of Imam Musa al-Kazim (A) and Salman, and performed the ziyarah of Imam Husayn (A) and the Commander of the Faithful ‘Ali (A), he gave the order to reconstruct the enclosure of the shrine at Karbala, gave three hundred dinars to the people who resided near the shrine of Commander of the Faithful (A), commanded that a canal be dug so that water could flow to Najaf.32 The Shi‘a also showed respect towards the Seljuqs, and when Ahmad, the son of Malikshah and heir to his throne passed away in 481/1088, the people of Baghdad held mourning ceremonies for seven days, and in Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 63 the city of Karkh too, many Shi‘a came out of their houses to pray, and in order to express their grief and mourning the people of Karkh hung black cloth over the doors and windows of their houses.33 The relationship of the Seljuq Malikshah with the Shi‘a has been recalled so fondly that some even considered him to have been a Shi‘a or to have had inclinations towards Shi‘ism. There is even a book that was published about his having been a Shi‘a and recounting the story of the debate between an ‘Abbasid and an ‘Alawid. This story that is narrated is a debate which took place between one person who was ‘Alawi and an ‘Abbasi who was Sunni. The debate took place in the presence of Malikshah and his vizier Nizam al-Mulk, and matters pertaining to the differences between Sunni and Shi‘a beliefs were discussed and analysed in detail, one by one. The acceptance of Shi‘ism by Malikshah and story of this debate has been recounted in a small booklet entitled Mu’tamar ‘Ulama’ Baghdad which has an introduction by Ayatollah Mar‘ashi Najafi. 34 There is also a commentary on this book written in Arabic.35 The actual subject of the debate between the ‘Alawid and ‘Abbasid at the time of Malikshah has not been recorded in any historical sources, but its sources have been documented in the translations and commentaries of the original book. Even though the material and arguments presented in this debate are correct, and this story may have been written based on correct information, it is likely to have been fictional. If this debate did in fact take place, it would have been recorded in at least one of the Shi‘a historical sources. In any case, the main objective is twofold: to remind people of these matters and to clarify the position of the Seljuq sultans with respect to the Shi‘a. The book al-Naqd of ‘Abd al-Jalil Qazwini is one of the best examples of expositions about the situation of the Shi‘a and the sectarian politics of the Seljuqs. According to the author of this book, at the time of Tughril, who is considered an example of one whose reign was hard upon the Shi‘a, a person by the name of Amir Abu al- Fadl ‘Iraqi, who was one of the people very close to Tughril and highly respected by him, reconstructed the enclosures of the cities of Ray and Qum, renovated the ‘Atiq Mosque in Qum, and re-built the mosque and traditional dome of the shrine of Lady Ma‘sumah (A) in Qum.36 ‘Abd al-Jalil narrates from the author of the book al-Fada’ih, which is the subject of his critique, that the Shi‘a were persecuted at the time of the Seljuqs and during the reign of Malikshah and Sultan Mahmud, and they were prevented from running madrasahs. However, Qazwini The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 64 rejects this and gives examples of the madrasahs that were established in different areas.37 The author of al-Naqd believes that the Seljuqs did not have any particular enmity against the Shi‘a. Rather the Seljuqs opposed the Isma‘ili Shi‘a and the Batinis, but the Imami Twelver Shi‘a had fundamental differences with this group because the Isma‘ilis were after power, and to this end, they planned to carry out acts of terror such as assassinating rulers. ‘Abd al-Jalil Qazwini writes at length about the difference between the Batinis and the Imamiyyah and explained the inception of the works of the Isma‘ilis. He believes that the founders of the Batini sect were mostly from the Mushabbihah and Mujabbirah (two branches of the Ahl al-Hadith among the Sunnis).38 4. The Shi‘a of Baghdad, the caliphs, and the Sunnis Simultaneous co-operation and opposition. The most common area where the Shi‘a of Baghdad would gather was the district of Karkh, and the altercations between its residents and the Sunnis who lived in other parts of Baghdad would many times result in bloody battles and raids in the different areas. These altercations reached their peak during the reign of the Buyids, because when the Buyids and the Shi‘a began openly declaring the tenets of the Shi‘a faith, a strong negative reaction from the Sunnis resulted, and this discord was very strong during the last days of the Buyids. After the fall of the Buyids also, this contention would be seen in scattered areas and would sometimes intensify, but it never reached the level of discord that had been there previously. This was because the Shi‘a were under pressure from the caliphs and the Sunnis, and they were not in a position where they could manifest their faith openly; and because of the restrictions and clampdowns, the Shi‘a adopted a policy of dissimulation and acquiescence. However, sometimes this acquiescence turned into strife as was the case in the year 478/1085 when a huge fight broke out between the people of Karkh and those of all the other districts of Baghdad, resulting in the conflagration of Karkh. The caliph’s vizier, Abu Shuja‘, dispatched a contingent of troops to try and quell the situation and prevent bloodshed, but he was unsuccessful and the scope of the turmoil became wider and resulted in a great deal of destruction.39 In the year 451/1059 also, according to what Ibn Athir narrates, in the Karkh district, in the big Dar al-‘Ilm library of Shapur ibn Ardish, an arson attack took place whose cause has been attributed to ‘Amid al-Mulk Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 65 Kunduri, Tughril’s vizier. This library housed ten thousand volumes, out of which one hundred were copies of the Holy Qur’an in the calligraphy of Ibn Muqlah. ‘Amid al-Mulk Kunduri was personally present during the arson attack, and he selected and took some of the best books for himself.40 In the year 458/1065, the Shi‘a of Karkh commemorated the ritual ceremonies of the day of ‘Ashura, closed down their shops, recited elegies, and mourned for Imam Husayn (A). The Sunnis complained about this act and this led the caliph Qa’im bi-Amr Allah to rebuke the leader of the ‘Alawis, who in turn pretended that he did not to know anything about it. When the Sunnis’ complaints became more widespread, it became evident that the chief of police in Baghdad had given permission to the Shi‘a to conduct these rituals of mourning. The chief of police became frightened of retribution and went into hiding, and, in the end, a statement was released cursing all those who said anything against the companions.41 In the year 460/1067, the jurists and hadith scholars asked the caliph to read out the Qadiri Creed (i‘tiqadnamih-yi qadiri) which was a document which had been prepared from the time of the caliph al-Qadir bi-Allah in which the Rafidis and Mu‘tazilis were cursed.42 In 482/1089, a huge fight broke out between the two groups. It started when the people of Bab al-Basrah, who were Sunnis, attacked the district of Karkh, killing one person and injuring another. The people of Karkh closed down the marketplaces and raised copies of the Qur’an on spears, demanding that the murderers be brought to justice, but this did not bring the desired results. Fights then broke out and, as a result, the district of Karkh was raided. Soon after, the caliph Muqtadi sought the assistance of Sayf al-Dawlah Mazyadi who in turn sent a contingent under the command of Abu al-Hasan Farisi and raided the houses of those who had participated in the murder of the ‘Alawis, cutting short their beards, killing some of them and banishing others until the situation came under control. 43 This was one of the biggest battles between the Shi‘a and Sunnis during the reign of the Seljuqs in Baghdad. Afterwards, through the initiative of the Mazyadid ruler, Baghdad was relatively calm for the next few years. In Sha‘ban of 502/1108, the Shi‘a and the Sunnis of Baghdad came to a peace agreement, and what is interesting is that this pact was enacted without mediation or intervention by anyone, whereas in the past, many attempts were made by others to bring about peace between these two groups, but all were futile. Ibn Athir believes that the reason for the The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 66 co-operation of the Shi‘a with the Sunnis at this time was their feeling a sense of weakness, because Sultan Muhammad Seljuqi had ordered the execution of Sayf al-Dawlah, and after this the people of Karkh were fearful for their lives, because Sayf al-Dawlah and his family were Shi‘a and had influence and power.44 The Shi‘a, while showing their co-operation and affability, were at the same time serious in defending their beliefs, and in 569/1173, when one of the preachers of Baghdad by the name of Muhammad al-Tusi declared that Ibn Muljam had not become an apostate by killing the Commander of the Faithful (A), the Shi‘a attacked him and threw stones at him, and he had to be whisked away under the protection of the Turks. The next day, the people were ready to stone him again, but he did not attend the gathering.45 Despite all the altercations and the hostilities that have been mentioned, it should not be surmised that the Shi‘a and Sunnis were always at war with each other. Rather, they were living side by side in peace and harmony most of the time, busy dealing with each other; especially since the Shi‘a primarily opted to adopt a policy of dissimulation and tolerance. The few disputes that took place once every few years, nevertheless, were usually caused by the fanaticism of some people who were driven by sectarian bigotry that led to the rising of tensions and hostilities. The Role of the Shi‘a in the Political and Governmental Structure/ Hierarchy. During the period of the Turkish Seljuqs, while the role and presence of the Shi‘a in the courts of the caliphs was initially weakened, it gradually revived, up to the point where they acquired the post of vizier. The influence of the Shi‘a in this period cannot be compared to the later period – meaning from the beginning of the caliphate of al- Nasir li-Din Allah until the end of the ‘Abbasid caliphate (575-656/1179- 1258) – but they generally had an effective presence. Even though the Shi‘a were side-lined from the government, the lenient and flexible positions of the Seljuq sultans and also their differences with the ‘Abbasid caliphs became the means for the Shi‘a, who had experienced playing a pivotal role in the government at the time of the Buyids, to establish a presence therein. Actually, the period of Malikshah should be considered a period of revival for the Shi‘a which manifested itself in their active participation in politics and society. In the sixth century AH, although the four Sunni schools were present in Ray and the Seljuq government supported the Sunnis, the clerical work that was done by the Shi‘a led to their greater involvement Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 67 in matters of government. The presence of Shi‘a ministers in the courts of the Abbasids and the Seljuqs is clear evidence of this.46 One of the well-known Shi‘a personalities was Sharaf al-Din Anushirwan ibn Muhammad ibn Khalid ibn Muhammad al-Qasani (Kashani) who was the vizier of the caliph and also the vizier of the Seljuqs. He was the vizier of caliph Mustarshid from 526/1131 to 528/1133; and from 528/1133 to 530/1135, he was the vizier to Sultan Mas‘ud. His title was Sharaf al-Din Kashani and he was one of the famous personalities, custodians and viziers at the time of the Seljuqs, and was a scholar and a historian. He authored a book on history titled Sudur Zaman al-Futur wa Futur Zaman al-Sudur and another book titled Nafahat al-Masdur. The title of the second book has been mentioned in the introduction to Marzaban-namih, and ‘Imad Isfahani has narrated copiously from Sudur Zaman al-Futur in the book Nasrat al-Fatrah which is a book about the history of the Seljuqs.47 Another Shi‘a personality who was able to attain a governmental post was ‘Ala al-Din Tanamish, who was one of the great chiefs of Baghdad against whom the caliph was powerless. In 569/1173, a dispute arose between the people of Karkh and Bab al-Basrah when the water of the Tigris began to overflow. The people of Bab al-Basrah built a dam in order to stop the flow of water, but the water flooded a mosque in which there was a tree and that tree was uprooted. When the people of Karkh saw this they began crying out ‘The curse of God be upon the Ten’ (la‘an Allah al-‘asharah, referring to the famous Sunni hadith about ten personalities who are guaranteed Paradise), and cursed the first three caliphs, Talhah, and Zubayr. This led to a battle between the people of Karkh and those of Bab al-Basrah. The caliph al-Mustadi’ bi Amr Allah signalled to ‘Ala al-Din Tanamish to quell the turmoil. ‘Ala al-Din used to mistreat the Sunnis of Bab al-Basrah because he himself was a Shi‘a, and when he wanted to enter the district of Bab al-Basrah, the people of that district prevented him from entering and closed the gates and stood on the walls. ‘Ala al-Din wanted to burn down the gates, but the caliph rebuked him and prevented him from doing so. The turmoil continued for one week and finally, it ended without the use of force.48 Another of the Shi‘a chiefs of Baghdad was Amir Yazdan. When he passed away, a fight broke out between the Shi‘a and Sunnis in the town of Wasit, because the Shi‘a went into mourning, whereas the Sunnis celebrated.49 From the time of Muqtafi (530-555/1135-1160), the Shi‘a became more active in acquiring political power, and during the reign of the caliph Mustanjid (555-566/1160-1170) and Mustadi’ (566-575/1170-1179) the trend The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 68 of increased Shi‘a power and influence in Baghdad was on the rise. The growing power of the Shi‘a made the caliph Mustanjid anxious, and it was for this reason that he embarked on a programme to limit their influence. It was as part of this programme that he decided to expel the most important Shi‘a tribe, the Bani Asad, from Iraq. The tribe of Bani Asad were spread out between Wasit and Basra, and they had helped Sultan Muhammad Seljuqi during the siege of Baghdad. Hence, the caliph Mustanjid had a particular dislike for them, and so he gave the responsibility of expelling them to Amir Yazdan ibn Tammaj, who was one of the chiefs and highly regarded personalities of Baghdad and was himself a Shi‘a. Thus, Amir Yazdan subdued them and expelled them from Baghdad. This event took place in the year 558/1162.50 The dynasty of Bani Mazyad is another example of the role of the Shi‘a in politics and power. The Bani Mazyad from the Bani Asad ibn Khuzaymah was a branch of the tribes of Mudar.51 The tribe of Bani Asad was Shi‘a, and Bani ‘Adir was a branch of this tribe that was reported to have been responsible for burying the martyrs of Karbala.52 It was in the first half of the fifth century when the Bani Asad began gaining power under the leadership of Abu al-Hasan ‘Ali ibn Mazyad, also known as Sana’ al-Dawlah. At this time, the marauder tribes of Arabs were taking advantage of the weakness of the Buyids and carrying out raids and plundering.53 They would block the hajj caravans, and it was Abu al-Hasan ‘Ali ibn Mazyad who vanquished them. It was for this reason that his name became popular, and this gave him and the Bani Mazyad the opportunity to gain power.54 Both the ‘Abbasids and Seljuqs would endeavour to strengthen or weaken the Bani Mazyad in accordance with their own benefit or gain, and this was an opportunity for the Shi‘a to execute their role. Even though Nur al-Dawlah forcefully opposed Tughril and joined hands with Basasiri, Tughril never tried to wipe the Mazyadis off the stage; instead he protected them and thereby made his government last longer. 55 The reason for this was the discord and rivalry between the Seljuqs and the ‘Abbasid caliphs, whereby each would use a variety of different weapons in order to gain the upper hand over each other. Malikshah Seljuqi also benefitted greatly from the military strength of Bani Mazyad. In 465/1072 when Qawurd, the uncle of Malikshah, rebelled against him and a battle was fought between them, Nur al- Dawlah sent a contingent under the command of his son Baha’ al- Dawlah to participate in this battle in order to support Malikshah, and the primary reason for the defeat of Qawurd’s army was the Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 69 participation of this contingent of the Bani Mazyad – so much so that the soldiers of Malikshah became envious of them and attacked their tents.56 The Shi‘a in the Arena of Science and Culture. Before the entry of the Seljuqs into Baghdad, the academic circles in this city had great vibrancy, but with the entry of the Seljuqs into Baghdad and with the clampdown of the Sunnis, many restrictions were put on the Shi‘a, to the extent that the district of Karkh and even the house of Shaykh Tusi came under attack and were raided. 57 After the migration of Shaykh Tusi to Najaf, Baghdad lost its place as the centre of learning and the number of Shi‘a scholars present in Baghdad was greatly reduced. However, there were still a few Shi‘a scholars in certain areas who were active and whose presence was felt in Baghdad. Some of these scholars were: 1. Ibn Shahr Ashub Mazandarani (489-588/1096-1192) – exegete, narrator, linguist and jurist. After Shaykh Tusi’s migration from Baghdad to Najaf, the illuminating rays of knowledge were no longer seen in Baghdad until Ibn Shahr Ashub emerged and wrote his scholarly works. He himself mentions twelve of his works in the book Ma‘alim al-‘Ulama’. 58 It was in Baghdad that he authored the book Manaqib Al Abi Talib, which is the most famous of Ibn Shahr Ashub’s works and shows his mastery over historical and hadith literature. In the introduction, he uses interesting expressions to explain his reason for writing the book and then goes on to use both Shi‘a and Sunni references to substantiate his positions.59 In the end, though, due to the pressure of Hanbali scholars, he too had to leave Baghdad and move to Hillah. 2. Another Shi‘a scholar was Abu al-Asghar Muhammad ibn Humam al-Baghdadi. He was a historian, a linguist and one of the most reliable narrators of Nahj al-Balaghah. Abu al-Asghar was a student of Sharif Radi.60 3. Abu Sa‘d Hasan ibn Muhammad ibn ‘Ali ibn Hamdun al- Baghdadi (546/1151), who was one of the most renowned scribes and accountants of the ‘Abbasid court. He had strong control over the collection and spending of the state funds. Abu Sa‘d was the dynast of the knowledgeable family of Al Hamdun in Baghdad. Some of his important works include Kitab al-Hisab and a book about the machinery of government and state.61 4. Abu Muhammad ‘Abd Allah, better known as Ibn Khashshab. He was a Shi‘a scholar well-versed in grammar, language, poetry, philosophy, The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 70 alchemy, mathematics, jurisprudence and hadith. He had a good grasp of most of the Islamic sciences. He was the primary authority on Arabic grammar in Baghdad. He had a large library which he endowed to the students of religion.62 5. Abu Nasr Muhammad Ghars al-Dawlah (488-545/1095-1150). He was from the family of Hamdun and was one of the Shi‘a scholars who had a mastery over many of the sciences and also held an important post in the court of the ‘Abbasids. From the year 513/1119, he was made the chief scribe and became the private clerk of the ‘Abbasid caliph.63 His son Baha’ al-Din Abu al-Ma‘ali Muhammad was also in charge of teaching and issuing religious edicts (fatawa) and was also a Minister of the Court. These were the two offices that he held. One of his most well-known works is the book al-Tadhkirah or Tadhkirat Ibn Hamdun which is one of the sources used by ‘Allamah Majlisi in his Bihar al- Anwar.64 6. Muhammad ibn ‘Abd Allah Balkhi Wa‘iz, better known as Ibn Zarif. He was one of the Shi‘a who lived in Baghdad. He was born in Balkh and later came to Baghdad and began preaching there. One of the places that he would frequent in Baghdad was the Nizamiyyah where he would openly preach the beliefs of the Shi‘a and attack the beliefs of the Sunnis.65 7. Abu ‘Ali al-Tusi. During the time of Muqtafi, Baghdad was at a juncture where it had become a centre of erudition and knowledge of Shi’ism. The reason for this was the presence of the son of Shaykh Tusi (Abu ‘Ali al-Tusi) in Baghdad and the numerous groups of Shi‘a who would come to him to acquire knowledge and education. Safdi writes about them: ‘The status of this Shi‘a scholar was so high that ‘Imad al- Tabari has said about him: “If prayers could be sent on other than Prophets and Imams, I would send prayers and salutations on him.”’66 Conclusion The Shi‘a of Baghdad during the reign of the Seljuqs (447-575 AH) were faced with two powers – the ‘Abbasids and the Seljuqs. The Shi‘a, who had before this time been under the umbrella of the Shi‘a Buyids, now found themselves in a new situation because the strength of the caliphs, and the Sunnis had been revived by the support of the Seljuq sultans. Despite the presence of the Seljuqs in Baghdad and their support for the caliphs, there was no unity between the ‘Abbasid caliphs and the Seljuq sultans in dealing with the Shi‘a because the relationship of the Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 71 Seljuqs with the ‘Abbasids was not one of mutual co-operation as far as creed and ideology was concerned; rather it was based on mutual benefit. If the Seljuq sultans had acknowledged the legitimacy of the ‘Abbasid caliphs, it would not have behoved them to rise up and even wage war against them as they did at times. This type of relationship could not unite these two forces politically and ideologically against the Shi‘a. The lack of unity between these two powers strengthened the sectarian politics of the Seljuqs, because the Seljuqs were tolerant towards other sects, just as the attitude of the sultans in relation to the Shi‘a and their beliefs was based on respect and acceptance, while the Shi‘a also followed the policy of dissimulation and co-operation. Except in rare cases, such as during the time of Tughril, the Seljuqs would, for the most part, practice a policy of tolerance towards and even show respect for Shi‘a rites. All in all, the Seljuqs firstly were not prejudiced, and secondly were only interested in securing their interests; and this is yardstick they used to determine how to deal with the ‘Abbasid caliphs and the Shi‘a. This milieu was an opportunity for the Shi‘a to easily come out of the void that had been left after the fall of the Buyids, without becoming the target of the wrath of the caliphs and the Sunnis and without having to confront the Seljuq sultanate. It is for this very reason that, despite the fall of the Buyids and revival of power of the caliphs and the Sunnis, the Shi‘a of Baghdad were able to act as an important and influential force and make their presence felt despite being deprived of political power. In the beginning, they had to bear great losses due to their altercations with the caliphs and Sunnis after the fall of the Buyids. Most of the Shi‘a areas lost their liveliness, and some of these areas had even become desolate. However, after some time, the tensions began to reduce and even ceased completely; there were far less frequent and less intense disputes between the Shi‘a and Sunnis during the Seljuq than the Buyid era, and the peace-seeking position of the Shi‘a coupled with their policy of dissimulation was very effective in this regard. On the whole, in order to preserve their acquisitions and secure their survival, the Shi‘a neither had to fight with Tughril or the other Seljuqs, nor give any response to the rancour of the Sunnis. Of course, another reason for not confronting the Seljuqs was the inappropriate actions of the Buyids; because during the time of the Buyids, and especially during their last days, the hostilities between the Shi‘a and Sunnis reached their peak, to the degree that Shi‘a districts such as Karkh became the targets of raids and arson attacks, and this was not something the Shi‘a could The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 72 bear, so in comparison, the presence of Tughril was not as difficult for the Shi‘a, because they had just gone through their toughest period. Even though the Shi‘a lost most of their political power with the fall of the Buyids, they were nevertheless able to preserve their status as an influential force in various fields because, in their sectarian politics, the Seljuqs showed respect to the beliefs of the Imami Shi‘a. Additionally, the tumultuous relationship between the Seljuqs and ‘Abbasid caliphs prevented these two powers from uniting against the Shi‘a. This attitude of the Seljuq sultans and their policy of co-operation and acquiescence with the Shi‘a resulted in the Shi‘a not being dealt with as an opposition group. Thus, the Shi‘a gradually emerged from isolation and regained important roles in the government. Notes 1 Yaqut al-Himawi, Mu‘jam al-Buldan IV, ed. F. Jundi (Beirut: Dar al-Kutub al- ‘Ilmiyyah, 1990 (1410 AH)), 255. 2 Ibn ‘Imad al-Hanbali, Shadharat al-Dhahab II (n.p.: n.d.), 96. 3 Muhammad ibn ‘Ali ibn Sulayman Rawandi, Rahat al-Sudur wa Ayat al-Surur dar Tarikh-i Al-i Saljuq, ed. M. Iqbal (Tehran: Amir Kabir, 1986 (1364 AH (solar)), 95, 105; Zahir al-Din Nishapuri, Saljuqnamih (Tehran, Gilalekhawar, 1954 (1332 AH solar)), 15-17. 4 Bosworth and Molvin, Saljuqiyan, translated into Persian by Y. Azhand (Tehran: Mawla Publications, 1380 AH (solar)), 79. 5 Shams al-Din Ahmad Ibn Khallikan, Wafayat al-A‘yan fi Anba’ Abna’ al-Zaman I (Beirut, Dar al-Ahya’ al-Turath al-‘Arabi, 1997 (1417 AH)), 104; Ibn al-‘Abri, Tarikh Mukhtasar al-Duwal (n.p.: n.d.), 184. 6 Sermons such as the Friday prayer sermons and the ‘Eid day sermons would normally be read out in the name of the ruler of the land. 7 al-Khatib al-Baghdadi, Tarikh Baghdad IX (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1997 (1417 AH)), 407; Shams al-Din Muhammad ibn Ahmad ibn ‘Uthman al-Dhahabi, Tarikh al-Islam wa Wafayat al-Mashahir wa al-A‘lam XXX, ed. U. Tadmari, 2nd ed. (Beirut, Dar al-Kutub al-‘Arabi, 1989 (1409 AH)), 30; Abu al-Fida Isma‘il ibn Kathir, al-Bidayah wa al- Nihayah XIII, 4th ed. (Beirut, Dar al-Ma‘rifah, 1998 (1419 AH)), 521. 8 J. A. Boyle (ed.), The Cambridge History of Iran: The Saljuq and Mongol Periods V (Cambridge: Cambridge University Press, 1968), 202. 9 Abu al-Faraj Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX (Beirut: Dar al-Fikr, 1995 (1415 AH)), 405-406; Dhahabi, Tarikh al-Islam wa Wafayat al-Mashahir wa al- A‘lam XXX, 29; Jalal al-Din Suyuti, Tarikh al-Khulafa’ (Beirut: Dar al-Kutub al-‘Ilmiyyah, n.d.), 334. 10 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 410-417; Ibn Kathir, al- Bidayah wa al-Nihayah XII, 4th ed. (Beirut, Dar al-Ma’rifah, 1998 (1419 AH)), 539. 11 Ibn ‘Asakir, Tarikh Madinat Dimishq LIII, ed. U. al-‘Amrawi (Beirut: Dar al-Fikr, 1998 (1419 AH)), 84; Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 408. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 73 12 Ibn Kathir, al-Bidayah wa al-Nihayah XII, 540-543; Dhahabi, Tarikh al-Islam wa Wafayat al-Mashahir wa al-A‘lam XXX, 272. 13 Suyuti, Tarikh al-Khulafa’, 336. 14 Ibid., 355; Ibn Athir, al-Kamil fi al-Tarikh VI, 4th ed. (Beirut, Mu’assasah al-Tarikh al- ‘Arabi, 1994 (1414 AH)), 371; J. A. Boyle (ed.), The Cambridge History of Iran V, 48. 15 Ibn Athir, al-Kamil fi al-Tarikh VI, 227. 16 Ibid. 236. 17 Muhammad ibn ‘Ali ibn Tabataba ibn Taqtaqi, al-Fakhri fi al-Adab al-Sultaniyyah wa al-Duwal al-Islamiyyah, 1st ed. (Halab: Dar al-Qalam al-‘Arabi, 1997 (1418 AH)), 319; Suyuti, Tarikh al-Khulafa’, 340. 18 Ibn Athir, al-Kamil fi al-Tarikh VII, 9. 19 Ibid. VI, 649; Ibn Taqtaqi, al-Fakhri fi al-Adab al-Sultaniyyah, 407-409; Suyuti, Tarikh al-Khulafa’, 342. 20 Ibn Athir, al-Kamil fi al-Tarikh VII, 34. 21 Ibid. VI, 183. 22 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 538. 23 Ibid., 573; Ibn Athir, al-Kamil fi al-Tarikh VI, 285. 24 Ibid., 358. 25 J. A. Boyle (ed.), The Cambridge History of Iran V, 45. 26 Khwajah Nizam al-Mulk, Siyasatnamih, ed. M. Chardahi (Tehran: Kitabfurushi-yi Tahuri, 1956 (1334 AH solar)), 193-194. 27 Ibn Athir, al-Kamil fi al-Tarikh VI, 180; Ibn Khaldun, al-‘Ibar or Tarikh Ibn Khaldun III, 2nd ed. (Beirut: Dar al-Fikr, 1988 (1408 AH)), 568. 28 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 385-391. 29 Ghiyath al-Din Hussayni, Habib al-Siyar II (n.p.: n.d.), 489. 30 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 602-603; Ibn Athir, al- Kamil fi al-Tarikh VI, 305. 31 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 651. 32 Ibid., 602-603. 33 Ibn Athir, al-Kamil fi al-Tarikh VI, 314. 34 Muqatil ibn ‘Atiyyah, Mu’tamar ‘Ulama’ Baghdad, 3rd ed. (Qum: n.p., 1980 (1390 AH)). 35 Muhammad Jamil Hammud, Sharh Mu’tamar ‘Ulama’ Baghdad (Beirut, Mu’assasat al-A’lami li al-Matbu’at, 2002 (1423 AH)). 36 ‘Abd al-Jalil Qazwini Razi, al-Naqd, ed. S. Muhaddith (Qum: Kitabkhanih Takhassus-i Tarikh-i Islam va Iran, n.d.), 220. 37 Ibid. pp. 46-47. 38 Ibid., 91, 162, 511 39 Ibn Athir, al-Kamil fi al-Tarikh VI, 297. 40 Ibid., VI, 209. 41 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 461; Ibn Kathir, al- Bidayah wa al-Nihayah XII, 555. 42 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 471-472. 43 Ibn Athir, al-Kamil fi al-Tarikh VI, 318. 44 Ibid., 497. 45 Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 513. 46 Ja‘fariyan, Tarikh-i Tashayyu’ dar Iran, 2nd ed. (Tehran: Nashr-i ‘Ilm, 1387 AH (solar)), 471-490. The Shi‘a of Baghdad M. T. Ya’ghoubi & A. Montazerolghaem 74 47 Ibn Athir, al-Kamil fi al-Tarikh VI, 607, 634, 644. 48 Ibid. VII, 247. 49 Ibid., 255. 50 Ibn Athir, al-Kamil fi al-Tarikh VII, 170. 51 Abu al-‘Abbas Ahmad ibn ‘Ali Qalqashandi, Nihayat al-‘Arab fi Ma‘rifat Ansab al- ‘Arab (Baghdad: Matba‘at al-Najah, 1958 (1378 AH)), 39. 52 Abu al-Hasan Mas‘udi, Muruj al-Dhahab wa Ma‘adin al-Jawhar III (Beirut: Dar al- Andalus, n.d.), 63. 53 Qalqashandi, Nihayat al-Arab fi Ma‘rifat Ansab al-‘Arab, 332-337. 54 Ibn Khaldun, al-‘Ibar or Tarikh Ibn Khaldun III, 546. 55 Ibn Athir, al-Kamil fi al-Tarikh VI, 192. 56 Bandari Isfahani, Zubdat al-Nadhr wa Nukhbat al-Nasr (n.p.: n.d.), 56. 57 Muhammad ibn Hasan Tusi, Kitab al-Ghaybah (Tehran: Maktabat Naynawa al- Hadithah, n.d.), 6; Ibn Jawzi, al-Muntazam fi Tarikh al-Muluk wa al-Umam IX, 391. 58 Ibn Shahr Ashub Mazandarani, Ma‘alim al-‘Ulama’ (Najaf: Manshurat al-Matba‘ah al-Haydariyyah, 1961 (1380 AH)), 119. 59 Ibn Shahr Ashub Mazandarani, Manaqib Al Abi Talib I, 19-32. 60 Dairat al-Ma‘arif Tashayyu‘ III (Tehran: Mu’assasih-yi Da’irat al-Ma‘arif Tashayyu‘ with the co-operation of Yadavaran, 1993 (1371 AH solar)), 286. 61 Ibid. 62 Mustafa ibn ‘Abd Allah Khalifah, Kashf al-Zunun V, ed. Y. al-Baqa‘i, 2nd ed. (Beirut: Dar al-Adwa’, 1991 (1412 AH)), 456; Ibn Khallikan, Wafayat al-A‘yan II, 50-51. 63 Ibid. II, 409-410. 64 Ibid. II, 50; M. Khalifah, Kashf al-Zunun VI, 95. 65 Sibt Ibn Jawzi, Mir’at al-Zaman fi Tarikh al-A‘yan VIII (Haydarabad: Da’irat al- Ma‘arif al-‘Uthmaniyyah, n.d.), Part Two, 474. 66 Salih al-Din Khalil ibn Aybak Safdi, al-Wafi bi al-Wafayat XII (Beirut, Dar al-Sadir, 1985 (1405 AH)), 251. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 75 Beyond the Karbala Paradigm: Rethinking Revolution and Redemption in Twelver Shi‘a Mourning Rituals E D I T H S Z A N T O The American University of Iraq, Sulaimani, Sulaymaniyyah, Iraq ABSTRACT: In the mid-90s, Lebanon’s Hezbollah movement and the Iranian Ayatollah Khamene’i both banned bloody forms of self- flagellation such as tatbir (cutting the forehead with a sword), calling them backward and un-Islamic. They argued that Shi‘a Muslims ought to imitate Husayn by actively fighting against oppressors rather than passively mourning Husayn’s martyrdom. This prohibition has not been unanimously applied in all Muslim countries, including Syria, where such practices persisted until the Arab Spring (when virtually all Shi‘a Muslims left the shrine-town where these practices were performed). By closely reading the linguistic, conceptual, and juridical discourses that circulated in Syria in order to justify this position, the paper shows that the performers of tatbir conceived of these rituals in revolutionary, rather than reactionary, terms. By examining the performance and reception of flagellation processions in terms of differing modalities of affect, the paper opens up spaces for rethinking ‘revolution’ and ‘redemption’ in contemporary Twelver Shi‘ism. KEYWORDS: Karbala Paradigm, Shi‘a Muharram practices, self- flagellation, affect, Syria, Sayyidah Zaynab Introduction In the mid-90s Lebanon’s Hezbollah movement and the Iranian Ayatollah Khamene’i both banned bloody forms of self-flagellation such as tatbir (cutting the skin on the top of the head with a sword) calling them backward and un-Islamic. 1 They forbid bloody forms of self- Beyond the Karbala Paradigm Edith Szanto 76 flagellation because, they claim, it portrays a negative image of Twelver Shi‘ism. 2 They argue that Shi‘a Muslims ought to emphasize ‘modern, revolutionary’ rather than ‘traditional, soteriological’ interpretations of Imam Husayn’s martyrdom at the Battle of Karbala. 3 Hezbollah in particular calls on Shi‘a to imitate Husayn by actively fighting against oppressors, rather than passively mourning Husayn’s martyrdom.4 In Syria, in contrast to Lebanon and Iran, bloody self-flagellation practices are legal and increased in popularity over the last two decades until the spring of 2011, when thousands of Shi‘a fled from the violence that accompanied the Syrian uprising.5 As Twelver Shi‘a backed, as well as received support from, Syria’s ‘Alawi government, they have been increasingly targeted. For example, in January of 2012, 18 Iranian pilgrims were kidnapped. 6 In April, the head of the Ayatollah Sadiq Shirazi’s hawzah Zaynabiyyah, the oldest and one of the largest Shi‘a seminaries in Syria, was shot and died on his way to the seminary.7 By July, the shrine-town was divided into sectarian zones at war with one another. Afghan and Iraqi Shi‘a were fleeing en masse because they were threatened by Sunni Syrians, Iraqis, and Palestinians who live in and around the shrine-town of Sayyidah Zaynab, around ten kilometres south of Damascus. Other inhabitants have fled because of several attempts at bombing the shrine and its surroundings.8 Before this unrest, however, Shi‘a memorial rites could be observed in the Syrian shrine-town of Sayyidah Zaynab. Sayyidah Zaynab is the granddaughter of the Prophet Muhammad, daughter of ‘Ali and Fatimah. She is a key figure in Shi‘ism because she witnessed the Battle of Karbala, wherein her brother Husayn, the third Shi‘a Imam, was killed in 680 CE during the Islamic month of Muharram. After Husayn’s death, Zaynab was taken prisoner along with the other women and children from the camp of Husayn. They were brought to Damascus, where Zaynab confronted the Umayyad caliph Yazid ibn Mu‘awiyah and spread the story of the injustice through commemorative mourning gatherings (majalis ‘aza). According to Um Husayn, the principal of Ayatollah Muhammad Shirazi’s Syrian seminary that I attended as part of my fieldwork, Sayyidah Zaynab was not only the first to lead ritual mourning gatherings, but also the first to self-flagellate and cut her head in mourning.9 This, according to the ‘modern pious’ Shi‘a, which anthropologist Lara Deeb describes, is a ‘traditional’ interpretation. 10 ‘Modern pious’ Lebanese Shi‘a often follow Hezbollah and value ‘rationalism’ over ‘emotion’. For them, rationalism means the use of Modern Standard Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 77 Arabic in mourning gatherings, rather than the southern Iraqi dialect which dominates Arab Shi‘ism. They invoke rationalism as a slogan in order to oppose bloody forms of self-flagellation including tatbir. Proponents of tatbir, such as the Shirazis, do not deny the importance of rationalism. 11 Instead, they emphasize hemic rituals in an attempt to claim legitimacy through the concept of tradition. Both opponents and proponents frame their arguments about tatbir with reference to dualistic terms: tradition and modernity, healing/salvation and revolution. In this article, I rethink these binaries by first reviewing academic approaches to Muharram mourning practices and discourses. Second, I introduce the Syrian shrine and town of Sayyidah Zaynab and local debates surrounding Muharram rituals. Third, I examine Twelver Shi‘a mourning rituals in Syria, including majalis ‘aza and tatbir, through two related dichotomous concepts, the Karbala Paradigm and affective mourning modalities, which I discuss below. Fourth, I show how paying attention to affect can help in reconsidering the concepts of ‘revolution’ and ‘redemption.’ The Karbala Paradigm Muharram rituals have been a favourite topic of discussion among historians, anthropologists, and political scientists. Prior to the Iranian Revolution of 1979, scholars framed their analysis in terms of the ‘Passion of Karbala,’ which they treated as a Shi‘a genus of the passion play common in Christian Easter observances. 12 Following the Revolution, however, scholars such as Nikki Keddie and Michael Fischer became interested in the politicization of Shi‘a Muharram practices and discourses. In 1981, the anthropologist Fischer was the first to coin the phrase ‘the Karbala Paradigm’ in order to distinguish Shi‘a Muharram practices from those of Catholic Penitentes. His construction pointed to the narrative’s rhetorical operation, dramatic form, and significance in differentiating Shi‘a. The paradigm, according to Fischer, ‘provides models for living and a mnemonic for thinking about how to live.’13 By 1983, historian Nikkie Keddie framed the analysis in terms of a duality with a relationship to politics. The duality in the subtitle of Keddie’s edited volume, Shi‘ism from Quietism to Revolution, which Mary Elaine Hegland rephrased as ‘accommodation and revolution,’ became the dualism through which scholars came to understand the Karbala Paradigm. 14 Around the same time, anthropologist Michael Gilsenan Beyond the Karbala Paradigm Edith Szanto 78 published his comparison of Muharram rituals in Iran with Lebanon. He designated politically quietist versus revolutionary modes, ‘passive’ versus ‘active’ modes of piety.15 In their more recent studies, Kamran Aghaie, Lara Deeb, and Sophia Pandya have not only adopted earlier politically focused and dichotomous views of the Karbala Paradigm, but have argued that there has been a shift over the course of the latter half of the twentieth century from ‘traditional’ and ‘salvific’ interpretations to ‘modern’ and ‘revolutionary’ interpretations. 16 At first, Shi‘a in Iran, Lebanon, and Bahrain followed ‘traditional’ and ‘salvific’ interpretations, according to which Shi‘a should participate in all forms of mourning and self- flagellation in order gain salvation in the afterlife as well as in this lifetime. Then, many Shi‘a began following ‘modern’ and ‘revolutionary’ interpretations, according to which Shi‘a should strive for ‘modern’ values, such as education, progress, political awareness, and social involvement. The dichotomous concepts these academics have been using largely mirror those of religious Iranian ideologues such as ‘Ali Shari‘ati who in the decades prior to the Revolution had turned the Karbala narrative into a revolutionary manifesto. (Notably, Shari‘ati lies buried in the cemetery adjacent to the shrine of Sayyidah Zaynab in Syria.) Shari‘ati argued that there are two types of Shi‘ism: the first type was the ‘pure, just, and populist’ Shi‘ism of ‘Ali ibn Abi Talib, the first Imam. The second was Safavid Shi‘ism, the worldly, complacent, and corrupt piety of the scholarly elite, the ulema.17 The clerics’ ‘worldly Shi‘ism’ implied that they were more concerned with the details of ritual observance than struggling against the corrupt regimes that had co-opted them.18 By holding up ‘Alid Shi‘ism as the pure, just, and true form of Shi‘ism and delegitimizing scholarly authority, Shari‘ati emphasized ‘active emulation of Husayn in the form of active rebellion against corrupt rulers.’19 He transformed the Battle of Karbala from a religio-historical account, central to mainly soteriological practices, into an on-going moral and political obligation to revolt against injustice.20 Husayn became the ‘model for rebellion against the Shah and the foreign imperialist powers.’21 My caveat with both Shari‘ati and the aforementioned academics is that the dichotomous interpretation of the Karbala Paradigm posits two mutually exclusive options. Muharram rituals and symbols are either traditional or modern, salvific or revolutionary. My objection to this binary is that it simultaneously depoliticizes salvation and de- sacralizes revolution.22 Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 79 In what follows, I complicate and reconcile this politically focused and dichotomous interpretation of the Karbala Paradigm. I do so by drawing attention to two underlying modes of affect, which are not only conceptually and linguistically inter-related, but interdependent. I argue that Muharram symbols, discourses, and rituals affect participants in two affective modes: athara and thara. They can transmit, have influence, and make an impression,23 or they can stir up, arouse, and excite.24 The first term derives from the root a-th-r; the noun athar designates ‘traces’ or ‘tradition.’ 25 The second derives from the root th-Á-r, which is also the root of the word ‘revolution,’ thawrah. The two terms are closely related both in form and in content, linguistically and with regard to their meanings. To illustrate my theory, I show how athara and thara are both at work in two kinds of mourning rituals, which I observed in Sayyidah Zaynab: weekly women’s mourning rituals (majalis ‘aza) and men’s annual ‘Ashura processions including tatbir. I demonstrate how the concepts of athara and thara help reconcile and, at the same time, illuminate interpretive differences with regard to the Karbala Paradigm. Finally, I claim that an analytic focus on affect, rather than political effectiveness, allows scholars to rethink both ‘revolution’ and ‘salvation’ with regard to contemporary Twelver Shi‘ism. Figure 1: The eastern side of the shrine of Sayyidah Zaynab. It is the side one sees when entering from the prayer hall. Above the entrance, it reads: ‘Al-salam ‘alayki ya Zaynab al-Kubra’ (‘Peace be upon you, O Zaynab the elder’). Beyond the Karbala Paradigm Edith Szanto 80 At the shrine It is ironic that the country which has been most tolerant of public Shi‘a mourning rituals over the last decades is the same place where Sayyid Muhsin al-Amin (d. 1952), the highest ranked Shi‘a jurist or mujtahid of Damascus of his time, published a tract condemning flagellations in the 1920s, sparking a debate over bloody flagellation practices. Opponents accused Amin of giving in to Sunni pressure. Supporters argued that he only sought to reform ‘Ashura practices by criticizing, for instance, the participation of unveiled women in public rituals. By removing the visually offensive aspects from these practices, Amin hoped to make these rituals into aesthetically pleasing spectacles, which would serve as proselytizing tools.26 Despite Amin’s disapproval, bloody flagellation processions are generally tolerated in Sayyidah Zaynab. Unlike the Iraqi government under Saddam, the Syrian regime does not fear the rituals’ ‘revolutionary potential.’ And unlike both Iran and Lebanon, Syria is not mainly concerned with the ‘modern’ and ‘authentic’ image of Twelver Shi‘ism. Struggling to rule over a majority Sunni country, the Syrian regime (which is largely ‘Alawi) is indulgent towards Twelver Shi‘a because it derives its Islamic credentials and legitimacy from them.27 Moreover, Syria’s stance towards Shi‘a piety has made religious tourism a lucrative source of income. Thus, the Syrian state has sought to merely contain ‘Ashura practices, but not to control or abolish them. The Syrian government sought to side-line and hide these practices in 2009, when the ties between Saudi Arabia and Syria became stronger and the Saudi king came to visit Damascus. However, they remained legal and lively. The main promoters of self-flagellation rituals in Sayyidah Zaynab are the Shirazis and other exiled elite Shi‘a. They first started coming from the Iraqi shrine-town of Karbala in the early 1980s, when Saddam Hussein exiled forty thousand Shi‘a suspected of Iranian descent. In 1982, Ayatollah Hasan Shirazi was murdered in Beirut, Lebanon. Meanwhile his brother, Ayatollah Muhammad Shirazi, had left Iraq for Kuwait, but following the Iranian Revolution of 1979, he moved to Qum, Iran. Muhammad Shirazi had had high hopes for Iran and the Revolution. The Shirazis had been close friends and helpers to Ayatollah Khomeini before the Revolution. However, they had a falling out by the mid-80s. The Shirazis disagreed with Khomeini’s wilayat al-faqih al-mutlaq and preferred shurat al-fuqaha’, a system that would allow them to have a voice Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 81 in politics. Moreover, as the Supreme Leader of Iran, Khomeini had become more concerned with domestic matters. The Shirazis remained dedicated to their transnational network and ideology. Despite their political failures in Iraq and Iran, the Shirazis have been successful in building networks and institutions in Syria. They head the oldest and one of the largest seminaries in the shrine-town Sayyidah Zaynab, the Zaynabiyyah. Significantly, the most important religious space in town, the shrine of Sayyidah Zaynab and its prayer hall does not fall under the authority of the Shirazis. The shrine is under the influence of Hezbollah and under the control and authority of Khamene’i.28 Women visibly affiliated with Hezbollah ‘manage’ female crowds on Fridays. The Iranian Supreme Leader Ayatollah Khamene’i controls the shrine in the sense that his views are preached from the pulpit and his advice is disseminated from ‘Islamic information offices’ in the shrine complex, across the entrance to the prayer hall. His influence is substantiated by the fact that it is Iranian money which has been funding much of the recent renovation of the shrine. 29 Notably, both Khamene’i and Hezbollah oppose tatbir. (However, they do not oppose latmiyyat, or rhythmic clapping on the chest.) As political actors, both are mainly concerned with the image of Twelver Shi‘ism. They are opposed to bloody ‘Ashura practices, because they argue that it makes Shi‘ism look ‘irrational’ and ‘backward.’ They are afraid that seeing such practices leaves negative impressions on Sunnis and non-Muslims.30 The Shirazis are also concerned with defending the image of Shi‘ism, though their position as a minority within a minority make them more willing to embrace provocative practices. Their defence and active encouragement of tatbir performance demonstrates their defiance of and opposition to Khamene’i and his claim to be the sole supreme leader.31 The Shirazis compare their own exile and loss of power to that of the Family of the Prophet. They claim to be the defenders of ‘tradition’, in the sense that they equate ‘flagellation’ with the ‘tradition’ of Sayyidah Zaynab. Another sense in which the Shirazis invoke ‘tradition’ is by arguing that tatbir flagellation in particular constitutes a ‘prophetic’ (and thus, ‘traditional’) form of medicine. They claim that it is a form of ‘cupping’ which draws ‘damm fasid’, rotten or corrupt blood, out of the body, thereby healing it.32 Tradition connotes healing. In Syria, the Shirazis promote bloody forms of self-flagellation such as tatbir at their seminary, which lies around two hundred metres north of the shrine of Sayyidah Zaynab, on the road to Damascus. They also have Beyond the Karbala Paradigm Edith Szanto 82 a satellite television station. However, as noted earlier, they do not control the shrine. Khamene’i’s representatives manage the shrine. This means that casual visitors and pilgrims, as well as local Sunnis who may also visit the shrine, are much more likely to hear and be exposed to Khamene’i’s views. The Shirazis can only reach out to those who attend classes or mourning gatherings held at their Zaynabiyyah seminary. Who attends classes and rituals at the Zaynabiyyah? Though short-term visitors do occasionally come in and participate, most of the attendees are long- term foreign residents who live in Sayyidah Zaynab or its surrounding areas. They include mainly Iraqis, Iranians, Afghans, Africans, some Kuwaitis, and sometimes Syrian or Lebanese Shi‘a. The demographic split between those who support Khamene’i versus those who support Muhammad Shirazi separates and even alienates locals from visitors and non-Shi‘a locals, who are likely to hear Khamene’i’s view if they visit the shrine. As foreign long-term residents perform bloody mourning rituals, Sunni locals and pilgrims from all over the world learn that extreme forms of flagellation are not acceptable. One might even posit that the hostilities post-2011 between on the one hand Iraqi and other long-term Shi‘a residents and on the other hand Syrian, Golani, and Palestinian Sunnis, who came to the area largely before Shi‘a began arriving, have been influenced by the discursive divide between the Shirazis and Khamene’i.33 What influence it has on Shi‘a in Syria as a whole after the uprising is another question entirely. Affective mourning practices While Ayatollahs Shirazi and Khamene’i do not agree on tatbir, they do agree on a variety of other Muharram practices which are regularly performed in the shrine and town of Sayyidah Zaynab. They both support latm, wearing black clothing, and crying. One of the most vital pious practices in Sayyidah Zaynab is the weekly mourning gathering (majlis ‘aza), wherein Shi‘a commemorate the oppression and deaths of the Imams. The majlis begins when the mullayah ascends the minbar (or podium). The mullayah may begin with reading a ziyarah, a ‘visitation prayer’ for the particular member of the Prophet’s family to be mourned during the gathering. Ziyarat are standardized prayer- formulas found in Shi‘a prayer books, particularly Mafatih al-Jinan.34 Alternately, a mullayah may begin with a slow latm, a mourning chant accompanied by rhythmic chest beating (though many women will slap Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 83 their hands on their knees or thighs instead of their chests). Following this introduction, the mullayah reads salawat, greetings to the Prophet’s family, the ahl al-bayt, which includes a short formulaic description of their oppression and ends with the wish ‘ya laytana kunna m‘akum fa- nafuzu fawzan ‘adhiman’ (literally, ‘O, how we wish we had been with you [at the Battle of Karbala], we would have won a glorious victory’). The salawat are usually chanted in the manner of a dirge. They set the mood melodically and pre-shadow the na‘i lament, which follows later. Though this na‘i is short, many women pull their abayat, black outer garments, over their faces as if practicing, readying themselves for the mourning to come later in the ritual gathering. Next, the mullayah introduces the topic of her sermon either quoting Qur’an or a relevant hadith. In her talk, the mullayah may address doctrinal or legal questions.35 ‘Alawiyyah ‘Aliya, a teacher at the Shirazi seminary, explained in a rhetoric class, that the preacher or mullayah should keep it short.36 This way, the audience will be moved, but not bored. The mullayah should engage her audience through interesting stories and she should talk about something useful.37 For example, it is useless to tell an audience of veiled women to veil. Instead, a mullayah should encourage them to pray on time. A mullayah should adapt their sermons or lessons to the interests of her audience. A carefully chosen topic will actually leave deeper effects; it will make the audience think. To further illustrate this point ‘Aliya related the following story: ‘There was once a shaykh who went to a rural community where he wanted to perform ritual mourning gatherings. To his surprise, his audience did not respond to his lamenting chant as he held his first majlis. Disappointed, he asked his hosts whether they thought his voice was lacking. The hosts assured the shaykh that his lament during the majlis had been beautiful. The shaykh thought for a while and then asked the host: “What occupations do the villagers practice?” The answer was animal husbandry. The next day, the shaykh retold the Karbala story in a local idiom. He explained that the cattle of Yazid killed the animals of Husayn. And the audience wept almost immediately!’ When ‘Aliya finished the story, the seminary students laughed. They understood that using local idioms helps move listeners and causes them to reflect. The na‘i, which follows the sermon, covers a range of lament styles which follow a set order (wannah, tahmis, muthaqqal), but allows for improvisations within the parameters of this form. An accomplished mullayah has memorized countless lines of mourning poetry, which help her improvise while chanting. 38 She has recourse to standard Beyond the Karbala Paradigm Edith Szanto 84 classic collections and newer fashionable collections for the na‘i. In both cases, the poetry is in shrugi, Southern Iraqi colloquial Arabic. In this, the majalis in Sayyidah Zaynab differ from the self-consciously ‘modern and revolutionary’ majalis in Lebanon, which use Modern Standard Arabic.39 Though the emphasis lies on the mullayah, she is not solely responsible for the felicitous performance of majalis. Participants are expected to noisily, actively lament and cry during the na‘i in response to the mullayah’s chant. Mullayah Um Zaynab often tells her audience: ‘If you can’t cry, pretend to cry (tabaki)! Performing tabaki carries the same divine reward as crying and it will, insha’ Allah, help you learn to cry with more ease.’40 Pulling one’s abayah over one’s face, or simply hiding one’s face in one’s hands and acting ‘as if’ one cried is not only acceptable, but a necessary first step towards becoming a better, more pious Shi‘a. To signal the end of her na‘i, the mullayah invariably recites the formula usually invoked when hearing the news of someone’s death: ‘Inna li-Allah wa inna ilayhi raji’un’ (or ‘we are from and belong to God and to Him we return’). As if on cue, women cease their lament, dry their tears, pull back their abayat, and uncover their faces. At this point, the mullayah has the option to perform latmiyyat (which are chants accompanied by rhythmic chest beating) before ending the ritual gathering. Syrian and Lebanese mullayat tend to minimize or omit this part, while Iraqis tend to extend it. At the Shirazi seminary, all majalis include at least three latmiyyat. Each increases in tempo, agitating and exciting devotees. The first latmiyyah may be accompanied by clapping on the thighs, the second by chest-beating, and the third by slapping one’s cheeks. The majlis comes to a close with one or more of three standard prayers. The mullayah tells her audience to ‘salli ‘ala Muhammad wa Al-i Muhammad,’ bless the Prophet and his family, and then recite Surah al- Fatihah for the benefit of the sponsors of the majlis and for themselves, for the sake of healing and for the fulfilment of their needs. If someone has a particular need or request, she may request the mullayah to ask everyone to respond to another ‘salli ‘ala Muhammad wa Al-i Muhammad’ and recite another Surah al-Fatihah. In short, the weekly mourning gathering goes through a cycle of affect. It begins with a slow, ‘heavy’ chant. After this initial ‘impression’, the mullayah transmits a lesson, which ends in na‘i. Through na‘i, devotees descend into crying or tabaki, an emotional, cathartic low. Then, they ascend via latmiyyat to a rhythmic crescendo. Finally, the ritual ends Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 85 in a sudden stillness, a redirection, and a plea for the Mahdi, the Hidden Imam, to return and to save his Shi‘a devotees. One day after class at a seminary in Sayyidah Zaynab, I brought up the binary of athara and thara for discussion with Um Muhammad, a classmate at the Zaynabiyyah seminary. She liked the idea and suggested that another way to conceive of these two modes of affect is to link them to another dichotomy: ‘theory’ and ‘practice.’ She explained that there is a correlation: ‘the traces (athar) which mourning gatherings leave are theoretical, dogmatic, nazari. The ‘revolutionary’ mode of Shi‘a piety (thawrah), for her, constitutes ‘practice.’ It is ‘amali (or practical).’ 41 Her attribution of the adjectives, ‘theoretical’ and ‘practical’, to the two modes of affect is complementary. One necessarily implies and requires the other. The theoretical traces of mourning gatherings occupy attendees’ minds; mourning gatherings also agitate, engender practice and encourage practical action. ‘They are like [the duality of] mind and body,’ explained Um Muhammad. They encompass both salvation and revolution. Figure 2: This photo was taken in 2007, when the eastern side of the shrine’s compound was not yet exclusively dedicated to women. The men and women in the photo belong to the same tour group. The men are performing latm (a form of self-flagellation which consists of rhythmically slapping one’s chest), while the women are lamenting loudly. The tour guide usually has some seminary education and leads the ritual chant which accompanies the latm. Beyond the Karbala Paradigm Edith Szanto 86 ‘Revolutionary’ and ‘salvific’ interpretations While ritual mourning gatherings in Sayyidah Zaynab are often held on a weekly basis throughout the whole year, there are also calendar specific mourning rituals, such as ‘Ashura processions, which take place on the tenth of Muharram. Some ‘Ashura processions include tatbir, the practice of cutting oneself on one’s forehead with a blade until blood flows. Others do not. I examine tatbir here is because it is an extremely popular practice, which draws both crowds and controversies. Tatbir processions, in a sense, form the pinnacle of the annual Muharram cycle. In Sayyidah Zaynab, Shi‘a perform tatbir processions at dawn on ‘Ashura. Just after sunrise, rows of young men dressed in white dishdashahs, or long-sleeved robes, emerge from various seminaries and husayniyyat.42 Accompanied by boys and men carrying drums, the men rhythmically chant ‘ya Haydar’ (‘O lion’, an epithet for Imam ‘Ali, Husayn’s father). Some carry their own swords and rhythmically hit themselves on their freshly shaved heads with the flat side of the blade in preparation for tatbir. The older, more experienced men cut themselves. First-timers let an elder hit them once or twice. In a sea of mourning Shi‘a dressed in black, the flagellants stand out in their blood-stained white dishdashahs. The bleeding men march proudly around the shrine, pay their respects to Sayyidah Zaynab. They promise her, the gathered crowds and themselves that they stand by Husayn. Similarly to the weekly mourning gatherings, they wish: ‘Ya laytana kunna ma‘akum fa-nafuzu fawzan ‘aziman! O how we wish we had been with you [at the Battle of Karbala], we would have won a glorious victory!’ The flagellants range from five-year-old boys, whom their fathers carry on their shoulders, to elderly men. The majority, however, who perform this rite of masculinity, are young men from their late teens to early forties. They include Iranians, Afghans, and South Asians, but the majority is Iraqi. (There were roughly two million Iraqis in Syria around 2006 and many of those were Shi‘a.) Crowds form in anticipation of the flagellation procession, consisting of women – the flagellants’ mothers, wives, sisters, and daughters – and other men, both Sunni and Shi‘a. Many cry while watching the flagellants. The atmosphere is both sad and energetic. When I watched the processions in 2008 and 2009, a few of the women who knew me proudly pointed out their male relatives who were performing tatbir. Even after the procession is over and the crowds dispersed, dozens of young male flagellants continue to walk around in their blood-stained Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 87 clothes for the rest of the day. They bear visible traces of mourning. The traces are bodily: the pain fades, but the cut of the forehead remains for a while. The young men also make impressions on others. Tatbir influences observers: it can agitate them or make them think. As most tatbir processions take place just after sunrise, few non-Shi‘a critics and cynics come to see the flagellants. Most come in the afternoon, when two or three South Asian groups of men perform zanjir flagellations (wherein they use chains with attached blades). Nevertheless, on the morning of ‘Ashura (in January 2009), a group of young Palestinian Sunni men showed up along the eastern wall outside the shrine of Sayyidah Zaynab – mainly in order to make fun of the Shi‘a men performing tatbir. A young Iraqi Shi‘a man was slowly passing in front of them and felt personally offended by the Palestinian youth’s comments. The Iraqi took his ceremonial sword, not the sharp one used for actually cutting the top-front of the head, and mockingly pretended to hit one of them on the head. The Palestinian youth jerked back, inadvertently admitting fear and defeat. The Shi‘a man continued with the procession, while the Sunni recovered as his friends made fun of him. The scene was carnivalesque and playful.43 At first, the Sunni boys felt compelled to react to the bloody procession. Then the flagellant felt stirred up, ignited, and maybe even a little bit irritated. In the background, the drummers continued their slow rhythm and mournful chant. Overall, the scene could be described as leaning towards thara rather than athara. By contrast, women’s weekly mourning gatherings at the Zaynabiyyah can be predominantly thought of in terms of athara. Yet, in some cases, athara and thara coincide. Consider the following example: in Sayyidah Zaynab, there is a resident group of South Asian Shi‘a seminary-students and merchants that had been following Ayatollah Khamene’i, who is opposed to tatbir, as their marja‘ al-taqlid. After the 2009 Iranian election, when Khamene’i supported Ahmadinejad’s re-election, the South Asian men were so disgruntled with the Iranian leaders that they chose to participate in tatbir processions.44 Through tatbir, by cutting themselves with swords on the top-front of their heads, these men ritually inscribed their bodies. As opposed to the revolutionary transformation of a society through political mobilization, they were instead reclaiming their bodies in protest. Their protest may not have led to political change, but their performance of tatbir became a method for liberating themselves from Khamene’i’s authority. Their performance combined athara and thara. What was this, if not revolutionary and salvific at the same time?45 Beyond the Karbala Paradigm Edith Szanto 88 In his booklet entitled al-sha‘a’ir al-husayniyyah (which the English preface translates as ‘Husayni demonstrations’), Hasan al-Shirazi, the founder of the Zaynabiyyah seminary, explains that the nine mourning rituals he describes are an ‘extension of Hussein’s revolution’. 46 The Arabic text promises merit, intercession, and healing as rewards for participating in crying (buka’), tabaki, ma’atim (another name for majalis ‘aza), wearing black clothing, tearing one’s clothing at the neck, latm, flagellation with chains, theatrical representation, and tatbir. The English text pays no attention to salvation and healing. Instead, it begins with the scandal of dissent in the early community, the loyalty of ‘Ali, the betrayal after Ghadir Khumm, and the martyrdom and sacrifice of Husayn for the sake of Islam. The implied meaning is that internal enemies, as well as colonial powers (which the second half of the preface describes), seek to obliterate Shi‘ism and that only ‘Husayni demonstrations’ can preserve it. In this short account, the heavy story, which leaves traces (athar), precedes the call to ritual performance/revolution (thawrah), but is also a necessary prerequisite. In other words, they cannot be separated even if references to merit and salvation as such are omitted. Conclusion In the 1970s, bloody clashes erupted between Iraqi government forces and men marching in ‘Ashura processions, including tatbir processions, in the southern Iraqi shrine-city of Karbala. Consequently, Saddam Hussein banned all Shi‘a mourning processions, fearing their ability to mobilize crowds. In 1979 in Iran, mourning processions became demonstrations and led to the Iranian Revolution. Like other processions, ‘Ashura processions can remain politically quietist. They can either fail or succeed in overthrowing regimes. As we have recently witnessed in Tunisia and Egypt, demonstrations alone can make regimes fall. However, as we have seen in Bahrain and Syria, this is not always the case. In other words, political change and revolutionary efficacy are not predictable and because of that, ‘revolution’ cannot be an inherent aspect of either Muharram processions or other forms of demonstrations. Therefore, I have argued that instead of focusing on political outcomes, it is more analytically productive to pay closer attention to affect, as it can help us re-think the ‘revolutionary’ mode of the Karbala Paradigm in broader terms. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 89 Table of Key Transliterated Terms Term Appearing in Text Arabic/Persian Term With Diacritics Athara أثر athara Latm لطم laÔm Majalis ‘aza مجالس عزاء majÁlis ÝazÁÞ Mullayah مالية mullÁyah Na‘i نعي naÝÐ Thara ثار thÁra Tatbir تطبير taÔbÐr Notes 1 Augustus Richard Norton, ‘Ritual, Blood, and Shiite Identity Ashura in Nabatiyya, Lebanon’, in The Drama Review, vol. 49, no. 4 (2005), 147. 2 Lara Deeb, An Enchanted Modern: Gender and Public Piety in Shi‘i Lebanon (Princeton, NJ: Princeton University Press, 2006), 132; Wathiq al-Shammari, Ikhbar al-Faqir fi Ithbat Hurmat al-Tatbir (The Information Guide of the Poor Man [or average Muslim] in the Assertion of the Prohibition of Tatbir) (Beirut: Mu’assasat al-Naba’, 2010), 53-54. 3 Kamran Aghaie. The Martyrs of Karbala: Shi‘i Symbols and Rituals in Modern Iran (Seattle: University of Washington Press, 2004); Deeb, Enchanted Modern. 4 Currently, the main oppressor for Hezbollah is the state of Israel. 5 Lara Jakes, ‘Iraqi refugees flee Syria to avoid sectarian revenge’, Times of Israel, 31 July 2012 <http://www.timesofisrael.com/iraqi-refugees-flee-syria-to-avoid-sectarian- revenge/> (accessed 24 August 2012); Ryan Villarreal, ‘Refugees, Twice: Iraqis in Syria Displaced Again by Conflict’, International Business Times, 26 July 2012 <http://www.ibtimes.com/articles/367226/20120726/syria-iraq-refugee-un-conflict- unhcr-civil.htm> (accessed 24 August 2012). 6 The Iranian pilgrims were later released. ‘Fate of 18 Iranian citizens abducted in Syria remains unknown’, Press TV <http://www.presstv.ir/detail/229787.html> (accessed 21 March, 2011); Babak Dehghanpisheh, ‘Iranian pilgrims kidnapped in Syrian capital as fighting flares anew’, Washington Post, 4 August 2012 <http://www.washingtonpost.com/world/ middle_east/iranian-pilgrims-kidnapped-in-syrian-capital-as-fighting-flares- anew/2012/08/04/8a2ed31e-de61-11e1-9ff9-1dcd8858ad02_story.html> (accessed 24 August 2012). 7 ‘Head of Hawza e Zainabia Martyred By Target Killing in Syria’, Jafria News, 15 April 2012 <http://jafrianews.com/2012/04/16/head-of-hawza-e-zainabia-martyred-by- target-killing-in-syria/> (accessed 20 April 2012). The hawzah was founded by Sadiq’s brother Sayyid Hasan Shirazi in 1973. Sabrina Mervin, ‘Sayyida Zaynab, Banlieue de Damas ou nouvelle ville sainte chiite? (Sayyida Zaynab, a suburb of Damascus or a new Shiite holy city?)’ in Cahiers d’Etudes sur la Mediterranée Orientale et le Monde Turco- Iranien: Arabes et Iraniens, vol. 22 (1996), 149-162. Electronic document, <http://cemoti.revues.org/document138.html>, accessed 23 March 2009. Beyond the Karbala Paradigm Edith Szanto 90 8 ‘Bomb attack targeting Syrian holy shrine leaves 14 people wounded’, Press TV, 14 June 2012 <http://www.presstv.ir/detail/2012/06/14/246193/car-bomb-hits-holy-shrine- in-damascus/> (accessed 24 August 2012). 9 Field notes, Summer 2007. 10 Deeb, Enchanted Modern, 131-133. 11 Notably, neither party promotes rationalism per se. 12 Cf. Peter Chelkowski, ed., Ta‘ziyeh: Ritual and Drama in Iran (New York: New York University Press, 1979); see also Mahmoud Ayoub, Redemptive Suffering in Islam: A Study of the Devotional Aspects of ‘Ashura’ in Twelver Shi‘ism (New York: Mouton, 1978). 13 Michael Fischer, Iran: From Religious Dispute to Revolution (Cambridge, MA: Harvard University Press, 1980), 21. 14 Mary Elaine Hegland, ‘Two Images of Husain: Accommodation and Revolution in an Iranian Village’, in Religion and Politics in Iran: Shi‘ism from Quietism to Revolution, ed. Nikki R. Keddie (New Haven: Yale University Press, 1983), 218-236. 15 Michael Gilsenan, Recognizing Islam: Religion and Society in the Modern Middle East (New York: I.B. Tauris, 2000 [1982]), 61. 16 Cf. Aghaie, Martyrs of Karbala; Deeb, Enchanted Modern; Sophia Pandya, ‘Women’s Shi‘i Ma’atim in Bahrain’, in Journal of Middle East Women’s Studies, vol. 6, no. 2 (2010), 31-58. 17 Aghaie, The Martyrs of Karbala, 100-103. 18 Ibid., 105. 19 Ibid, 109. 20 Ibid. 21 Ibid., 110. 22 See Sherine Hafez for a fascinating discussion on the problems with binaries: Sherine Hafez, An Islam of Her Own: Reconsidering Religion and Secularism in Women’s Islamic Movements (New York: New York University Press, 2011). 23 Hans Wehr, A Dictionary of Modern Arabic, ed. J. Milton Cowan (Ithaca, NY: Cornell University Press, 1966), 3-4. 24 Ibid., 109. 25 Mourning laments leave traces, and make listeners reflective. According to Um Zahra, words leave traces on ‘soft’ hearts. Fieldnotes, Monday, 14 December 2009. 26 Werner Ende, ‘The Flagellations of Muharram and the Shi‘ite Ulama’, in Der Islam, vol. 55, no. 1 (1978), 19-36. 27 Patrick Seal, Asad: The Struggle for the Middle East (Berkley: University of California Press, 1995), 173. Twelver Shi‘a were especially crucial for Hafiz al-Asad in the 1970s and 1980s because of the growing opposition by the Sunni Muslim Brotherhood, which accused Hafiz of being a non-Muslim and considered his rule illegitimate. Unlike his father, Bashar al- Asad has not associated himself closely with Twelver Shi‘a symbols, rituals, and authorities. At the same time, Bashar continues to have strong links with Twelver Shi‘a forces and authorities in Lebanon and Iran. 28 Whose control it will fall under after the Syrian uprising remains to be seen. 29 Mervin, ‘Sayyida Zaynab.’ 30 They are, of course, also concerned with the mobilizing effect such rituals can have on Shi‘a masses. The Iranian Revolution was, after all, born out of Muharram processions which turned into demonstrations. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 91 31 Louër, Transnational Shia Politics, 122-124. 32 Edith Szanto, ‘Contesting Fragile Saintly Traditions: Miraculous Healing among Twelver Shi‘is in Contemporary Syria’, in Sainthood in Fragile States, eds. Andreas Bandak and Mikkel Bille (Leiden: Brill, forthcoming). 33 Cf. Edith Szanto, ‘Sayyida Zaynab in the State of Exception: Shi‘i Sainthood as ‘Qualified Life’ in Contemporary Syria’, in International Journal for Middle Eastern Studies, vol. 44, no. 2 (2012), 287-289. 34 Cf. ‘Abbas al-Qumi, Mafatih al-Jinan (Beirut: Dar al-Murtadha, 2004). 35 E.g., may a menstruating woman visit the shrine? Field notes, Thursday, 12 February 2009. 36 In a sense, ‘authenticated and modern’ mourning gatherings are simply gatherings where the talk has become central and the other parts have been reduced to a minimum. 37 Field notes, Wednesday, 30 July 2008. 38 There is a common story about poetry and improvisation: there was once a young man who wanted to become a poet, so he went to a famous poet who told him to go and memorize 10,000 lines of poetry. This took the young apprentice a decade after which he returned to the poet who then told him to forget the poetry. That would make him into a poet capable of improvisation. 39 Deeb, Enchanted Modern, 144-146. 40 Field notes, Thursday, 1 January 2009 and Saturday, 14 November 2009. 41 Field notes, Monday, 14 December 2009. 42 In Sayyidah Zaynab, women usually do not participate in public performances of tatbir. However, there was a small group of women who performed tatbir in private. Field notes, Sunday, 27 December 2009. 43 It is carnivalesque in Bakhtin’s sense: it is grotesque and gluttonous. Cf. Mikhail Bakhtin, Rabelais and His World, trans. Helene Iswolsky (Bloomington: Indiana University Press, 1984). 44 Field notes, Monday, 28 December 2009. 45 Szanto, ‘Sayyida Zaynab in the State of Exception’, 291-292. 46 Muhammad Shirazi, Al-Sha‘a’ir al-Husayniyyah (Husayni Affects) (Beirut: Dar al- Sadiq, 1998), ix. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 93 Book Reviews A Code of Conduct: A Treatise on the Etiquette of the Fatimid Ismaili Mission. A critical edition of the Arabic text and English translation of AÎmad b. IbrÁhÐm al-NaysÁburÐ’s al-RisÁla al-mÙjaza al-kÁfiya fÐ ÁdÁb al- duÝÁt ed. and trans. by Verena Klemm and Paul Walker, 2011. (Ismaili Texts and Translations Series, vol. 10.) London, I.B. Tauris in association with the Institute of Ismaili Studies, London, xii + 84 (English) + 74 (Arabic) pp., £29.50. ISBN: 978-1-78076-126-8 (hbk). S U M A I Y A A . H A M D A N I George Mason University, Fairfax, Virginia USA This is the fifteenth volume in the Ismaili Texts and Translations Series by the Institute of Ismaili Studies. This series has made classics of Isma‘ili Shi‘ism available to scholars and students of Shi‘ism as well those investigating Isma‘ili contributions to the development of Islam itself. With the exception of two volumes on the Fatimid dynasty by Taqi al-Din al-Maqrizi, the fifteenth century Sunni Mamluk historian, and one by Nasir al-Din al-Tusi, the thirteenth century author who is associated with Twelver Shi‘ism, the remaining texts in this series span Isma‘ili contributions to philosophy, history, and manners or adab literature, as well as political treatises. This latest edited text and translation is a manual intended for instruction of the da‘wah, or missionary organization of the Isma‘ili Shi‘a, produced during the Fatimid period (909-1171) by one of its leading luminaries. Its author, Ahmad ibn Ibrahim al-Naysaburi (active in the early eleventh century), was a da‘i or missionary of the Shi‘a Fatimid state and its Isma‘ili branch during the reign of two Fatimid imam-caliphs: al-‘Aziz bi-Allah (d. 996), and al-Hakim bi-Amr Allah (d. 1021). It was during al-Hakim’s reign in particular that al-Naysaburi was active in defence of this imam-caliph, for whom he wrote three seminal treatises: two on imamah, and the Risalah al-Mujazah on and for the da‘wah. Al- Hakim became infamous of course as the Fatimid imam-caliph whose reign was marked by seemingly erratic policies affecting minorities, women, and others among his subjects (his alleged animosity toward Book Reviews 94 Christians for example, led to the destruction of the Church of the Holy Sepulchre in Jerusalem, then under Fatimid control, which presumably instigated the Crusades). Al-Hakim was also known for his relationship with what became the Druze offshoot of Isma‘ili Shi‘ism. Clearly the Fatimid dynasty, the state it established in Egypt, and the Isma‘ili community it led as imams, were all undergoing a crisis during his time, and thus Naysaburi’s works played a critical role in the attempt to set the record straight, as it were, for the Isma‘ili community of this period. Klemm and Walker’s edition and translation of the Risalah represents yet another solid achievement in this series of texts and translations. As Klemm notes in her Acknowledgements and the Introduction, her interest in al-Naysaburi’s Risalah arose from its relation to her doctoral work on another later da‘is works (xi). A few manuscript copies of Naysaburi’s Risalah existed in anthologies of Yemeni origin available at the American University of Beirut, and now at the Institute of Isma‘ili Studies (16-22). It is from some of these manuscript copies that Klemm prepared her edition of the text. Paul Walker contributes to this edition not only a wonderfully lucid translation, but also information on the dating of the text itself (23-31). As Klemm notes, the importance of the Risalah has as much to do with form as with content. In other words, Naysaburi’s Risalah is arguably the earliest work devoted to instruction of da‘is on their role and desired qualities as servants of the Fatimid imam and missionaries for his cause within and beyond the Fatimid realm. It should be noted that the Fatimid empire at its height in the tenth and eleventh centuries was vast, extending from North Africa through Egypt, to the Hijaz and Syria. It also boasted supervision, through its da‘wah, of communities of Isma‘ilis as far-flung as India, Central Asia, Iran, and Yemen. As such, the Fatimids represented a remarkable achievement – an empire ruled by a living Shi‘a imam that rivalled Sunni Muslim empires like those of the Umayyads and Abbasids in territorial extent, and whose influence extended even further beyond. The Fatimid da‘wah then, as an organization representing the cause of the Fatimid imams and Isma‘ili Shi‘ism, had a considerable presence in the intellectual, spiritual, political, and social life of the global Muslim community in the classical period of Islam. With regard to form, Klemm aptly situates this manual in the broader tradition of both adab literature as well as ‘mirrors for princes’, given that it addressed the esprit de corps, desired credentials, and Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 95 comportment of da‘is much as adab literature addressed the same for its audiences of courtiers and other social groups during Islam’s classical period. Because it also addressed the da‘wah’s administrative duties, she argues that it also partakes of the literary tradition of ‘mirrors of princes’ which addressed the responsibilities of rulers toward their subjects (7-13). Paul Walker further notes that, based on internal references, this work was probably produced during the reign of al-Hakim, and more specifically was likely authored between 1013-1015 (23-31). The Arabic edition (74 pp.) prepared by Klemm (with the assistance of Susanne Karam), reflects her specialization in Arabic language and literature in the careful annotation of its critical apparatus, which cross- references the manuscripts she used as well as other texts like the Qur’an. The English translation (84 pp.) is based on the final Arabic text produced by Klemm. In terms of content, what is striking (as Paul Walker notes in his comments in the Introduction) is the rationale Naysaburi provides for this work in his opening remarks, all of which indicate a crisis in the da‘wah, both in terms of its message and the behaviour of its messengers. That is, Naysaburi complains of the da‘wah’s having become an organization preoccupied with its own power and privilege rather than loyalty to the imam, the doctrines and knowledge of Isma‘ili Shi‘ism, and the proper performance of its spiritual and administrative duties (35-38). The Risalah then proceeds to remind its readers of the necessity of a da‘wah on the basis of Qur’anic verses referring to God’s desire that people be properly guided (36-39), followed by remarks on the general qualities expected of da‘is (knowledge, piety, and administrative ability) (42-47), and then proceeds to enumerate more specifically how those qualities are to be applied by the da‘is (47-60). The Risalah also addresses the recruitment and personal behaviour of the da‘is (60-68), and the proper discharge of their religious and administrative responsibilities (68-76). In all, the Risalah clearly represents a gem of adab as well as ‘mirrors’ literature, as Klemm notes. But its significance is arguably broader than the literary innovation that characterizes it. As Walker notes, it served a purpose in its time (the reign of al-Hakim) in shoring up the defence of the imam and addressing the failures of the da‘wah to unite the Isma‘ili community under him. But Walker and Klemm miss the opportunity to likewise address the significance of this text as a reflection of the professionalization of Isma‘ili da‘is or ulema. Much like in other branches of Islam, informal and personal networks of transmission of knowledge that produced ulema eventually became more formal and Book Reviews 96 professional, usually as a consequence of a state’s desire for legitimacy from them, as well as its need for them in administration. Thus, with regard to Sunni Islam, the formation of madhahib presumably led to their professionalization through madrasahs and the attendant tabaqat literature that established a protocol of archetypical qualities, qualifications, and duties of this social group. While in Sunni Islam this process extended well into the twelfth century and beyond, it would appear from the Risalah to have been achieved much earlier (in the eleventh century) by the Isma‘ilis. Of course the relationship between a living and ruling imam and his da‘wah was on some level different, but the exigencies of rule required of the Fatimid da‘wah that it address the professionalization of its members in much the same way. Hence the Risalah articulates a program for Isma‘ili ulema, and as such should be read not only as a text produced by the particular circumstance of al-Hakim’s reign, but also of the larger phenomenon of the da‘wah’s emergence as a distinct professional group. In other words, this text could arguably constitute a first instance or early evidence of the professionalization of knowledge in Islam generally. Moreover, it was precisely for this reason it continued to be transmitted by that post-Fatimid offshoot of the Ismai‘lis, the Tayyibi Isma‘ilis of Yemen, for whom loyalty to the imam al-Tayyib, presumed to have gone into ghaybah or occultation after 1130, devolved far more responsibility on the da‘wah representing his cause. The Tayyibi Isma‘ili da‘wah in Yemen was founded and patronized by the Sulayhid queen Arwa (d. 1138), and it was this later da‘wah that preserved Naysaburi’s Risalah in anthologies from which it was extracted for publication here. The Risalah’s having been embedded in this Yemeni da‘wah literature provides it with significance other than as a source on al-Hakim’s reign, as Abbas Hamdani notes in his edition and translation of one of these anthologies, the da‘i Hatim ibn Ibrahim al-Hamidi’s (d. 1199) Tuhfat al- Qulub (forthcoming in this same series from the Institute of Ismaili Studies). Serving as da‘i not long after the Tayyibi da‘wah had been established, Hatim ibn Ibrahim al-Hamidi helped it assume control over the Isma‘ilis of Yemen and India as they emerged as an important trans-regional community involved in the lucrative and globally significant Indian Ocean trade. And so it was that a Persian da‘i of a defunct empire came to provide the foundation for the administration and leadership of an Indian Ocean community which to this day continues to be led by the da‘wah he provided a constitution for (the Risalah was in fact and incidentally submitted as evidence in two court Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 97 cases of the early twentieth century on the issue of the parameters of the da‘wah’s leadership of the Tayyibi Isma‘ili community in India). For scholars and students of the Fatimid period, then, this edition and translation of the Risalah al-Mujazah will prove another important source on the dynasty and the empire it ruled; it could also provide one for those interested in the role of the Risalah in articulating a rationale for leadership of the da‘wah in later periods as well. All in all it serves as another example of the pioneering importance of Isma‘ili Shi‘ism to the development of Islam, for which the Institute of Ismaili Studies is to be thanked in making it available. Book Reviews 98 The Transmission and Dynamics of the Textual Sources of Islam: Essays in Honour of Harald Motzki ed. Nicolet Boekhoff-van der Voort, Kees Versteegh, and Joas Wagemakers, 2011. (Islamic History and Civilization, vol. 89.) Leiden & Boston: Brill, xvi +496 pp., ills., €161.00, $221.00. ISBN: 978-9-00420-389-1 (hbk). A N D R E W R I P P I N Department of History, University of Victoria, Canada Harald Motzki is renowned for his studies concerning the transmission of early Islamic texts (especially hadith) and for grappling with issues related to the historical origins of such writings. His approach, one that he has termed isnad-cum-matn analysis, focuses on tracing isnad patterns and textual variations in order to determine the mode of the earliest transmission of the material. The essays gathered in this volume honouring him reflect the themes of his own work, and many of the contributors develop his insights by employing his approach. Divided into four sections – ‘Production’, ‘Transmission’, ‘Interpretation’, and ‘Reception’ – nineteen scholars have contributed essays that treat a diverse range of subjects. Among the authors in the first section are Gregor Schoeler (49-61) commenting on Kitab al-Maghazi of Musa ibn ‘Uqbas (d. 141/758), Maribel Fierro (63-89) writing on hadith in al- Andalus, Fred Leemhuis (91-103) discussing a Qur’anic manuscript in Groningen likely written in the sixteenth century as a ‘not very careful imitation of a part of an old QurÞÁn manuscript’, and Claude Gilliot (105-33) meticulously tracing traditions on the collection of the Qur’an. In Section Two we find Michael Lecker (181-96) discussing the death of Jewish merchant Ibn Sunaynah during the lifetime of Muhammad, Maher Jarrar (197-227) writing on Ibn Abi Yahya who was a scholar of traditions in the second/eighth century, and Gerard Wiegars (229-47) documenting the reception of the ‘prophecies’ of the fourteenth century friar, Jean de Roquetaillade. The third section provides us with Uri Rubin (251-78) working on the interpretation of Qur’an 44:10-11, Joas Wagemaker (301-27) discussing modern Salafi conceptions of ‘ignorance’ (jahl) as an obstacle to making the accusation of disbelief (takfir), and Herbert Berg (329-53) exploring Elijah Muhammad’s interpretation of the Qur’an. Finally, Section Four sees Abdulkader Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 99 Tayob (357-74) discuss human rights in the modern Islamic discourse, Roel Meijer (375-99) document ‘the transnational battle for religious authority’ as illustrated by the Saudi quietist-Salafi Rabi‘ ibn Hadi al- Madkhali (b. 1931), Martijn de Koning (401-19) explore the experience of the Qur’an among Muslim youth in the Netherlands, Carmen Becker (421-41) outline ideas related to computer-mediated use of the Qur’an in the Salafi view, and Ulkire Mitter (443-73) analyse modern discussions of the hadith that states ‘The majority of the dwellers of hell-fire are women.’ It is in the nature of such volumes that some essays will be of greater interest to individual readers than others; I am highlighting here four essays from the volume (not mentioned in the above summary) that particularly drew my attention and which also illustrate the overall themes of the volume (and much of Motzki’s work). It is true that a number of the essays in the volume display the problems that emerge when scholars try to establish the historical validity of their sources on the basis of attributions to early authorities. Nicolet Boekhoff-van der Voort in her essay entitled ‘The KitÁb al- MaghÁzÐ of ÝAbd al-RazzÁq ibn HammÁm al-ÑanÝÁnÐ: Searching for earlier source material’ (27-47) tries to determine the historical reliability of traditions ascribed to al-Zuhri (that is, she wishes to establish that such traditions can be asserted to have been circulating at the time of al-Zuhri, d. 124/742) as they are found in later works, specifically in the transmissions of Ma‘mar (as transmitted by ‘Abd al- Razzaq) and Ibn Ishaq (as transmitted by Ibn Hisham). Significant differences are seen between three similar reports ascribed to al-Zuhri; various explanations are proffered for those differences. Yet, very quickly, Boekhoff-van der Voort asserts that, despite these differences, ‘the conclusion can be drawn that all three texts come from one source’. What is at best a possible conjecture is transformed into an asserted fact upon which further conclusions may then be drawn about how to reconstruct early sources. This is highly speculative historical writing, but it seems not to be recognized as such and the certainty of the results is asserted very strongly. Andreas Görke sets himself the task of finding the historical kernel of truth in his essay ‘Prospects and limits in the study of the historical MuÎammad’ (137-51). He sees his approach as standing in contrast to other methods, including Motzki’s isnad-cum-matn method, which he feels is too limited and too focused on minute detail when it comes to the goal of establishing a broad picture of the life of Muhammad. By Book Reviews 100 examining all the reports ascribed to a single authority as found in a variety of sources and using supplemental isnad-cum-matn analysis to ‘eliminate later additions and false ascriptions’ (144), Görke hopes to establish that long-sought-after genuine ‘kernel’. He illustrates this briefly by reference to the traditions of ‘Urwah ibn al-Zubayr (d. c. 93/712). But the process may still be observed to rely on intuition and supposition about how things ‘must have been’ in establishing that likely ‘kernel’ of truth. Jens Scheiner certainly recognizes that a common problem in historical reconstruction of events is the arbitrary and intuitive methods by which contemporary historians decide which account to trust and which not. He calls attention to this in his essay ‘The Conquest of Damascus according to the oldest datable sources’ (153-80). Pointing out that the popular understanding of the conquest of Damascus in 13 AH is generally presented on the basis of the version that appears in al-Tabari (one that produces a ‘highly consistent and vivid account’, 154), Scheiner calls for narrative and source criticism using the principles of isnad-cum-matn analysis to compare the various accounts of this conquest (which, he says, total about 1,000). The goal is to determine the elements in the narrative that are the oldest and thus, it is suggested, the most reliable (those being ‘eyewitness’ reports, 174). Of course, that in itself is a debatable historical principle, although Scheiner seems not to wish to discuss that issue and rather just assume that to be the case. Still, Scheiner is able to show quite convincingly the way in which historical ‘knowledge’ grows over time. Finally, Kees Versteegh provides an analysis of the exegetical comments ascribed to al-Dahhaq (d. 105/723) as collected in a recently printed work called Tafsir al-Dahhaq, a book that has been compiled from a number of later collections of traditions and works of tafsir by a modern editor. His essay is entitled ‘The name of the ant and the call to holy war: al-ÂaÎÎÁk b. MuzÁÎim’s commentary on the QurÞÁn’ (279- 99). Versteegh’s approach is much like the method that Görke suggests for historical data; Versteegh has the distinct advantage that someone else has already done of the rote work of gathering the ascribed material together. Versteegh’s task is limited to sorting through and ‘making sense’ of the data. In order to do this he organizes the reports into categories common to the exegetical and grammatical traditions. In the end, though, he is hard pressed to make any conclusions and he excuses that on the grounds of the possible ‘partial transmission’ (297) of al- Dahhak’s material; the incomplete nature of the transmission, it is Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 101 suggested, is to be accounted for by the exegete’s fame residing only in his more provocative statement about the first verses of Surat al-Bara’ah abolishing all peace treaties during the lifetime of the Muhammad. But the real problem here is the absence of an author of a coherent book. Al-Dahhak did not author the work that is being subjected to analysis; rather, that work is composed of traditions ascribed to him by later authors. The question must remain regarding the extent to which such ascriptions can be trusted. It comes as no surprise (to me, at least) that there is no consistent perspective to be extracted from an arbitrary collection of reports that are ascribed to one name. The variety of essays in this volume means that virtually every Islamic studies specialist will find something of interest. That many of the essays elaborate the distinctive contribution that Harald Motzki has made to the field mark this as a volume that truly honours its dedicatee. A bibliography of Motzki’s own work is found on pages 13-24. Book Reviews 102 Faharis al-Shi‘ah by Mahdi Khuddamiyan al-Arani, 1431 AH/2010. Qum: Mu’assasat Turath al-Shi‘ah, 1,389 pp., 21,000 riyals. (English title: Shiite Hadith Bibliography: An Introduction by Mahdi Khod’amiyan Arani. Qom: Shiite Bio-Bibliographical Institute.) ISBN: 978-600-90641-6-8, 978- 600-90641-4-4 (two volumes). K A R I M D O U G L A S C R O W International Institute of Advanced Islamic Studies, Kuala Lumpur, Malaysia The extant early biographic and bibliographic works of the Imami Shi‘a are essential tools for understanding the transmission and compilation of their written corpus of narrations elaborating spiritual, ethical, intellectual, legal, and doctrinal teachings. Mahdi Khuddamiyan al-Arani performs a signal service in these two volumes by substantiating the contents of eight bibliographic writings produced by Imami authors during the second half of the third/ninth century through the late fourth/tenth – writings which probably formed the basis for the two major fifth century fihrist works of Shaykh al-Ta’ifah al-Tusi1 (385-460 AH) and Ahmad ibn ‘Ali al-Najashi (372-450 AH). 2 The richness and variety of early Shi‘a literature is displayed in their two valuable bibliographies as well as in the great collection accomplished during the twentieth century by the tireless labour of Agha Buzurg al-Tihrani (1876-1970) in his al-Dhari‘ah ila Tasanif al-Shi‘ah. Agha Buzurg (a pupil of the text connoisseur Mirza Husayn Nuri) drew on manuscript collections both institutional and private, and remains an outstanding authority on extant copies of Shi‘a works. Yet previously unattested manuscripts continue to be uncovered and published, and one might hope for surprises in the future. The great collection amassed by Ayatollah Shihab al-Din Muhammad Husayn al-Mar‘ashi al-Najafi (1897-1990) and housed at the Grand Library of Mar‘ashi in Qum, reputedly the third largest collection of Islamic handwritten texts in the world, is a visible reminder of this wealth of Shi‘a literary activity stretching over thirteen centuries.3 What al-Arani offers us appears to be the fruit of our digital age with many texts now available on CD-ROM and search engines capable of Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 103 gathering defined bodies of data. He has assembled from the data recorded by Shaykh al-Tusi and al-Najashi the presumed contents of the following fihrist (bibliographic) works by: 1. Sa‘d ibn ‘Abd Allah al-Ash‘ari (d. 301 or 299 AH). 2. ‘Abd Allah ibn Ja‘far al-Himyari (d. 305 AH). ‘Abd Allah ibn Ja‘far al-Himyari and Sa‘d ibn ‘Abd Allah al-Ash‘ari were very important Imami scholars who flourished in Qum in the second half of the third century, and who both knew the eleventh Imam al-Hasan al-‘Askari (d. 260 AH), with ‘Abd Allah al-Himyari visiting Kufa in 297 AH for teaching purposes. 3. Humayd ibn Ziyad al-Ninawa’i (d. 310 AH). He was a prolific Kufan Waqifi Imami living in Sura with wide contacts who then moved to Nineveh, transmitting many of the (four hundred) kutub al-usul, and who compiled many works including one entitled Man Rawa ‘an al- Sadiq (also referred to as kitabuhu al-rijal). Three generations separated al-Tusi and al-Najashi from these first three third century authors. 4. Muhammad ibn Ja‘far ibn Buttah (d. 330 AH). Ibn Buttah, known as al-Mu’addib, worked in Qum and then Baghdad where he resided in al-Nawbakhtiyah. He was blamed for poor transmission methodology and errors. 5. Muhammad ibn al-Hasan ibn Ahmad ibn al-Walid (d. 343 AH). Ibn al-Walid was one of the most prominent jurists in Qum in his day enforcing the emerging ‘orthodoxy’, who compiled al-Fihris fi al-Rijal. 6. Ja‘far ibn Muhammad ibn Qulawayh (d. 368 AH). Ibn Qulawyah was an outstanding tradent-jurist in Qum transmitting much (via his father and brother) from Sa‘d ibn ‘Abd Allah al-Ash‘ari, and whose published Kamil al-Ziyarat preserves early information about pilgrimage practice to the tombs of the Imams. 7. Ibn Babawayh (Babuyah), or al-Shaykh al-Saduq (d. 381 AH). Ibn Babawayh of Qum, widely travelled and prolific, compiled one of the four authoritative Imami legal texts Man La Yahduruhu al-Faqih as well as a lost multi-sectioned rijal work al-Masabih; he resided in Khurasan and was buried in Ray (today a suburb of Tehran). 8. Ahmad ibn ‘Abd al-Wahid ibn ‘Ubdun (b. 330 AH - d. 423 AH). Ahmad ibn ‘Ubdun was a long lived teacher specializing in adab who taught Tusi and Najashi in Baghdad. Each one of these eight is given a detailed introduction on his life and work treating specific features of his legacy, including his writings, teachers, and pupils. This is followed by an alphabetic listing of the names of those Imami authors with the titles of their writings cited by Book Reviews 104 Shaykh al-Tusi and al-Najashi in their own bibliographic works – whose line-of-transmission for such data explicitly mentions one of these eight bibliographic authors. Al-Arani meticulously sifts the names and titles which are reported on isnads through one or another of these eight authors, as listed in our two extant fifth century AH fihrists, re-arranging these names into their recognizably more primary sources by separately collecting those names included by each one of these eight authors within his own original fihrist. Thereby, at least three generations of lost bibliographic activity prior to the works by Tusi and Najashi in the first half of the fifth century is partially recovered. This is a significant extension of our knowledge about the literary activity of Imami tradents and jurists during the one-and-a-half centuries before Tusi and Najashi. Of course, questions surrounding aural-literary transmission of Shi‘a narrations during the one-and-a-half centuries from the era of Imam al-Baqir and Imam al-Sadiq (the first half of the second century AH) until the death of the eleventh Imam al-‘Askari (260 AH) still remain. The listing of names/titles within the section devoted to each one of these eight authors is further subdivided into three sections: (a) names jointly cited by Tusi and Najashi which they evidently derived from the fihrist compiled by that particular author; (b) names cited only by Tusi through that author; and (c) names cited only by Najashi through that author. Al-Arani presumes (with evident justification) that Tusi and Najashi had both accessed the fihrist compiled by that particular author; and that the combined listing of those names with titles of their works (specified as reported through that particular author) may well represent the bulk of the text of that author’s fihrist. This is not an unreasonable presumption, although he recognizes that the contents of these original faharis might have contained other names/titles which Tusi and Najashi may not have listed in their own bibliographic productions (for instance, possibly non-Shi‘a scholars whom these authors studied under). Take for example the first two authors. For Sa‘d ibn ‘Abd Allah he determines that (a) eighteen names are shared in common by Tusi and Najashi; (b) seventy-two names are mentioned only by Tusi; while (c) thirty-one names are mentioned only by Najashi; (for a total of one hundred twenty-one authors whose books were known to and transmitted by Sa‘d). Whereas for ‘Abd Allah ibn Ja‘far: (a) twenty-seven names are shared in common by Tusi and Najashi; (b) sixty-two names are mentioned only by Tusi; and (c) fifty-nine names are listed solely by Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 105 Najashi (for a total of one hundred forty-eight authors whose books were known to and transmitted by al-Himyari). The implications flowing from those names from one fihrist being shared in common, yet simultaneously Tusi and Najashi each separately citing different names from that same fihrist, are thought-provoking. In his general Introduction (21-112), al-Arani provides a combined listing of a total of eight hundred eighty-eight names of authors mentioned in all eight fihrists and occurring in the two bibliographic works of Tusi and Najashi. Furthermore, in his reconstruction of the probable contents of each of these eight faharis, within the above-mentioned three sub-sections listing these individual names/titles, al-Arani references their occurrences in Tusi’s Fihrist and Najashi’s Rijal as well as to other early rijal works (such as al-Barqi,4 al-Kashshi, the Khulasah of ‘Allamah Hilli, and Ibn Dawud). He also performs a beneficial service in his extensive notes devoted to individual names, by referencing the representative parallel riwayat of every rawi-compiler in standard early Imami texts (al- Kafi, Basa’ir al-Darajat, al-Faqih, al-Tahdhib, al-Istibsar, and multiple works by al-Shaykh al-Saduq), thus facilitating the assessment and delimiting of the generation (tabaqah) of that individual rawi. In this way, he provides added clarity and insight into the living streams of transmission within Imami circles, and through whom and within which circles important texts were received. Such insight is productive for evaluating the probity of their narrations, and for gaining a better appreciation of the intense literary and scholarly activities of Imami centres in Iraq, Iran and Khurasan stretching back to the early third century, if not before. An important feature of this literary activity was the prevalence of ‘licensed written-transmission’ (ijazah) whereby texts were copied and recopied without necessarily being subjected to live oral-aural reception (sama‘); thus the importance attached to licences for ijazah granted for specific works by their compilers and transmitters. The production of these two volumes meets the high standards of care and accuracy which one now comes to expect from the proliferating research and publication centres radiating from Qum devoted to perpetuating the teachings of the Ahl al-Bayt. There are very few minor errors which I could detect (remarkable given the difficulty of proper vocalization of names), and the quality of the printing and layout is a pleasure to hold in one’s hand. Finally, a word is in order concerning the larger context of early Imami bibliographic productions. It was long recognized that the Book Reviews 106 bibliographic works by Tusi and Najashi were built upon compilations by preceding generations, and al-Arani’s book substantiates this in detail. The leading Imami scholars of the third and fourth centuries AH compiled catalogues of the writings they had received in transmission from their teachers. These earlier faharis were never intended to be comprehensive or include the full breadth of writings linked to teachings of the Ahl al-Bayt. Rather, they were personal records of study and teaching activities of individual scholars, and attest to their impressive productivity and intellectual creativity. 5 These likely included a listing of the particular author’s own writings, and they often took care to record the section titles of lengthy productions, or the individual ‘book’ titles encompassed within a much larger book. That is why we have, for instance, the titles of Ahmad ibn Muhammad ibn Khalid al-Barqi’s omnibus collection al-Mahasin, 6 of which only eleven out of its approximately one hundred twenty (or more) books are extant (which may be even less than one-tenth of the original). This is regrettable, since al-Mahasin represented perhaps the earliest encyclopaedic-like publication to appear in Islamic civilisation, at least half a century before the Rasa’il of Ikhwan al-Safa’7 or the ‘one hundred books’ by Ahmad ibn Muhammad ibn Du’al al-Qummi (d. 350 AH).8 Shaykh al-Tusi and al-Najashi were therefore accomplishing an important task in Baghdad by undertaking to list the entirety of writings known to them. The impetus for a more comprehensive listing was already present in the model of Ibn al-Nadim’s Fihrist (compiled 377 AH). Yet it was their elder contemporary Ahmad ibn al-Husayn ibn al-Ghada’iri (d. ca. 408 or earlier; he predeceased his father) who was said to first undertake to realize this ambition in two compilations covering the musannafat (written compilations and productions) and the usul (personal note-books recording narrations from the Imams and/or their immediate disciples) – works reportedly lost or ruined after his untimely death. Shaykh al-Tusi then took up the challenge by compiling first his Fihrist, then his Rijal, sometime after 408 AH and before 423 AH (pace Na’ini’s introduction to Rijal al-Najashi)9 – before al-Najashi compiled his own fahrasah between 420 and 436 AH at the request of his teacher al-Sharif al-Murtada. Najashi, who was thirteen years older than Tusi, produced a more accurate work being particularly careful to record when he was reporting about writings he had not examined personally. Changing political fortunes that witnessed the eclipse of the (Daylamite) Buyid polity and rise of (Turkic) Saljuq as well as Ghaznavid Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 107 powers also had a determining impact. When Sultan Mahmud of Ghaznah (Ghazni) conquered Khurasan, he occupied the flourishing cultural centre of Ray in 420/1029 and his troops sacked this city – many people were stoned as ‘heretics’ (batini, qarmati) while most of the books in its great library were burned on Mahmud’s order. In 448 AH Shaykh al- Tusi’s house in Baghdad along with his personal library was burnt down in one of the increasingly bitter inter-factional riots in the capital, and he relocated to Hillah in lower Iraq. Three years later in 451/1059 – with the entrance into Baghdad of the Saljuq war leader Tughrul Beg as ‘sultan’ accompanying the ‘Abbasid caliph al-Qa’im – a fresh round of Sunni- Shi‘a burning and looting broke out in the Karkh quarter, causing the destruction of the illustrious Dar al-‘Ilm handsomely endowed seventy years earlier in 381 AH by Sabur ibn Ardashir – vizier of the Buyud amir Baha’ al-Dawlah (d. 403/1012). This famous Shi‘a educational institute and scholar’s library par excellence was modelled after the caliph Ma’mun’s Bayt al-Hikmah, and recognized to be the most valuable collection of books in the capital. The flames consumed many original Imami autograph manuscripts; the preamble to its catalogue had described them as kutub ahl al-bayt. 10 Although Najashi died the year before this event in 450 near Samarra, his efforts along with those of his colleague Tusi helped preserve at least the memory of numerous writings. The rise of Saljuq polity in central Islamic lands ushered in the vigorous Sunni revival of the second half of the fifth century, reflected in the vizierial endowment of the chain of Nizamiyyah colleges. Moreover the full picture could be expanded to embrace the other rijal and fihrist works exploited by Tusi and Najashi, including bio- bibliographic works by the famous Jarudi Zaydi of Kufa, Ahmad ibn Muhammad ibn Sa‘id ibn ‘Uqdah (249-333), used later by Ibn Hajar al- ‘Asqalani in his Tahdhib and Lisan; the prolific Harun ibn Musa al- Tall‘ukbari (b. ca. 290-d. 385), the Basran Ahmad ibn Nuh al-Sirafi (d. ca. 420); and others. More work needs to be done along the meticulous lines demonstrated by Mahdi Khuddamiyan al-Arani in order to uncover Shi‘a intellectual and literary achievements from the ashes of history. Notes 1 Muhammad ibn al-Hasan al-Tusi, Fihrist Kutub al-Shi‘ah wa Usulihim, introduced by M. S. Bahr al-‘Ulum (Najaf: Haydariyah, 2nd ed. 1961; Beirut: Mu’assasat al-Wafa’, 3rd Book Reviews 108 ed., 1983); this was the revised edition with 909 entries. A fresh edition of the Fihrist was prepared by Jawad al-Qayyumi (Iran: Mu’assasat Nashr al-Faqahah, 1996). 2 al-Najashi, Rijal al-Najashi (Fahrasah Asma’ Musannafin al-Shi‘ah), ed. M. J. al-Na’ini (Beirut: Dar al-Adwa’, 1988). There is another edition of al-Najashi’s Fahrasah (showing some variants) prepared by Musa al-Shubayri al-Zanjani (Qum: Mu’assasat al-Nashr al- Islami li-Jama‘at al-Mudarrisin, 1986) which includes a valuable index listing all titles of writings. 3 More information on the library can be found at <http://www.marashilibrary.com>. 4 The Rijal or Tabaqat work commonly assigned to Ahmad ibn Muhammad ibn Khalid al-Barqi (d. 274 or 280) is most likely a compilation by his grandson Ahmad ibn ‘Abd Allah [ibn bint] al-Barqi, a teacher of Ibn Babawayh; this escaped both Tusi and Najashi. See Mahdi al-Hadawi al-Tihrani, Tahrir al-Maqal fi Kulliyat ‘Ilm al-Rijal (Qum: Mu’assasat Bayt al-Hikmah al-Thaqafiyah, 2005), 158-160. 5 The possibility that such faharis may also have been intended to serve as catalogues for purposes of ijazah should also be explored. 6 al-Barqi, al-Mahasin, ed. Jalal al-Din al-Husayni al-Muhaddith (Tehran: n.p., 1370/1950); also ed. M. S. Bahr al-‘Ulum (Najaf: n.p., 1384/1964). See the fresh critical edition by Mahdi al-Raja’i (Qum: al-Majma‘ al-‘Alami li-Ahl al-Bayt, 1413) in two volumes which include al-Barqi’s prologue or khutbah (via Ibn Idris, al-Sara’ir III, 64)]; see volume I, pages 44–51 for listing of its book titles. Al-Hurr al-Amili possessed a manuscript of the Mahasin with twelve books (including al-nawadir). 7 See for example C. Pellat, ‘al-Barki’, Encyclopaedia of Islam (2nd ed.), Supplement, 127a–128b. 8 See al-Najashi, Rijal al-Najashi, entry 221. 9 Najashi, Rijal al-Najashi, 15–21. 10 Youssef Eche, Les Bibliothèques Arabes Publiques et Semi-publiques en Mesopotamie, en Syrie et en Egypte au Moyen Âge (Damascus: Institut Francais de Damas, 1967), 102-117, 147-8. Note that al-Sharif al-Murtada (d. 436 ah) was appointed administrator of Sabur’s library in 416, and it is quite plausible that Tusi and Najashi researched their bibliographic works there. http://www.marashilibrary.com/ Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 109 City of Knowledge in Twentieth Century Iran: Shiraz, history and poetry by Setrag Manoukian, 2012. (Iranian Studies 10, ed. Homa Katouzian and Mohamad Tavakoli-Targhi.) Routledge: Oxford & New York, xi + 260 pp., £80.00. ISBN: 978-0-415-78328-6 (hbk). A L E S S A N D R O C A N C I A N The Institute of Ismaili Studies, London, UK acancian@iis.ac.uk Setrag Manoukian’s City of Knowledge is a genealogical ethnography of history and poetry in contemporary Iran that aims to explore the relationship between Iran’s history, poetry, and politics through a study of Shiraz, its ‘forms of knowledge’, the ‘techniques of power’ that operate at the intersection of the latter two, and the process of self- formation in relation to these two elements. The attentive reader will have noticed the Foucaltian resonances of this terminology and in fact the author makes clear his methodological stance from the very outset – Manoukian’s study is a journey through modern Shiraz’s knowledge practices undertaken though Foucault’s ‘disclocations’: savoirs, techniques of power, and subject formation. The whole work is carried out with exceptional theoretical awareness and remarkable methodological consistency that is reflected in its overall structure. The book opens with an introduction that sets the basis for the whole reading by setting its methodological coordinates, explaining its main theoretical concerns, and outlining the structure of the book. City of Knowledge aims to analyse the relationship between sociality and knowledge in Iran by addressing those areas (‘dislocations’, in Manoukian’s wording, borrowed from Foucault) whereby Iranians’ understandings of their culture, history, and poetry are manifested more clearly. The introduction is followed by six chapters and a three-page conclusion. In Chapter 1 the history of Shiraz as ‘the city of knowledge’ in the twentieth century is presented through an analysis of two works: Fursat- i Shirazi’s Asar-i ‘Ajam, and a comprehensive volume published in 1954 by the Kanun-i Danish-i Pars. The Asar, first published in 1896, is a ‘local history’ of the region that became a standard reference text in the twentieth century, while the publication by the Kanun is a collection of mailto:acancian@iis.ac.uk Book Reviews 110 articles and translations by a group of Shirazi scholars aimed at summarising the constitutive elements of Shiraz as a city of knowledge with the intent to revamp the city’s once glorious past and re-launch it as an outstanding scholarly centre. While Chapter 1 represents an extraordinary introduction to the subject of Shiraz as city of knowledge, Chapter 2 does not live up to the expectations set out. This chapter (‘Time, space and culture’) is predominantly theoretical and detached from the structure of the book, and its absence probably would not have been noticed. In it, Manoukian starts from the discussion of the dyad iskilit/sutun, taken, if I have duly understood the point, as symbolic yet contrasting elements of the material landscape of Shiraz. The iskilits are in fact the skeleton frames of steel columns and I-beams that, usually, due to lack of proper planning, rampant estate overdevelopment, and property speculation, stand lingering and unfinished for years in Iran as well as in any other country of the world where this problem exists. Sutuns are the columns that became fashionable in the architecture of the Pahlavi period, as an evocation of the ‘glories’ of pre-Islamic Iran, and that continue to be used in private building in Iran – in other words the Iranian counterparts of the capitalled columns used virtually everywhere in the world to conjure the air of a far and glorious past. A mark of bad planning and speculation the former, a display of tasteless affluence the latter – something universal and by no means specifically Iranian, let alone Shirazi. Moving from the dyad iskilit/sutun as exemplification of the regime of spatio-temporality of Shiraz (43), the author discusses the ‘reversal of the order of things’ that the Revolution brought about, touching upon architecture, toponymy, culture, and perception of time. The entire chapter does not add anything new to our knowledge and understanding of the Revolution, but rather comes across as a half- baked attempt to fit widely known facts into a theoretical framework in which iskilits and sutuns are taken for much more than they actually are: ‘[a]s temporal scaffoldings, iskilits sustain, in the present, the trajectory of modernization that played a crucial role in twentieth century Iran and still continues to exercise a discursive grip’ (56). That revolutions – like wars, huge catastrophes, and dramatic historical events – constitute a break in the perception of time of the people that are involved in them, which produces a clear demarcation between a ‘before’ and an ‘after’, is a platitude that Manoukian fails to elaborate meaningfully with respect to Iran. The account offered in the chapter gives the impression that a number of promising inspirations were recorded as Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 111 notes during fieldwork, but a place for them was never found during the writing process. This is regrettable, because the rest of the book is robustly crafted and thoughtfully conceived. Chapter 3 (‘Editing culture’) addresses the way the city of Shiraz and its knowledge practices underwent a massive editing process after the revolution. By ‘editing’, Manoukian means a ‘modality of intervening on images, objects and texts in order to make them appropriate for public display’ (64). By addressing editing, Manoukian aims at contributing to the discussions on the workings of the government in the Islamic Republic by proposing a reading different from both the culturally-oriented analyses of historians and sociologists and politically centred analyses by political scientists. Following Foucalt, Manoukian argues that concentrating on the ‘procedures and technologies of governamentality’ that enable the management of people and things allows for a more full understanding of the Islamic Republic. Throughout the chapter, a diverse range of interventions are taken to task, from building restoration to city planning, from the administration of culture to the establishment of encyclopaedia institutes, the organisation of conferences and university policies, to mention but a few. While Manoukian is quite at ease with the sources of his theoretical architecture, he is less so when he ventures into matters of religious history – which, it has to be said, are nonetheless marginal to his research. The approximation of the information he provides on this calls out for double checking if one is to avoid perpetuating inaccurate statements. In discussing the Madrasih-yi Khan, for example, he introduces Sadr al-Din Shirazi, for whom the madrasih was established in the sixteenth century. His definition of the work of Mulla Sadra as a ‘synthesis of the mystic and rationalist schools of Islamic philosophy’ (112) betrays a lack of frequentation and familiarity with the subject. In the same section, he credits ‘Allamah Tabataba’i with having been a teacher of Ruhullah Khomeini, to whom he would have passed his interest in Sadra’s theosophy (113). It goes without saying that Tabataba’i was not among Khomeini’s teachers nor could he have passed on to him his interest in theosophy. Other inexact statements are found here and there in the author’s treatment of Henry Corbin and Tabataba’i (113 ff.). Manoukian addresses the main buildings of the area of Shiraz that he writes the history of: the madrasih, the imamzadih, the khaniqah and the bazaar, briefly depicting for each one the trajectories of the practices Book Reviews 112 of which the places are centres. The places, like the area in which they are situated, are selected through the person who turns out to be his main informant: a retired high school teacher, passionate about local history and somehow, we understand, acknowledged as a member of the local petty intelligentsia and who comes to represent also an example of a Shirazi adib. The description Manoukian gives of the buildings and their social instances is given on the background of what he, following Foucault, calls ‘general history’, in order to explore the circumscribed territory as ‘the space of a dispersion’ (127). In pursuing his objective, in keeping with the high degree of self- reflexivity of post-1980s ethnographic practice, Manoukian takes on a narrative stance through which he describes the circumstances of his field research in detail. His sessions with ‘the teacher’ are squarely narrated in their full problematicity, and one can vividly grasp the gap between the intention of the ethnographer and the not fully accomplished self-awareness of the informant, along with the latter’s ambiguous role (131). Sometimes (Chapter 5, for example) the author groups a series of accounts of heterogeneous nature: a sketch of three outstanding Shirazi ulema (Baha al-Din Mahallati, Sayyid Nur al-Din, and Sayyid ‘Abd al-Husayn Dastghayb); a paragraph on pictures, related to the social and political activity of Nur al-Din; an analysis of a diagram of the Islamic Teachers Association drawn by the main informant; editing of history; and the communists of Shiraz. Manoukian seems at pains to eventually give the different pieces of his field notes a connective substance, although the accounts are interspersed with theoretical interpolations that appear to be mainly called out for by accidental resonances. The whole picture seems to lack direction. As a result, the chapter gives the impression of being the place where many of the notes that didn’t find space elsewhere have been stacked. Not that the notes themselves lack significance – one gets a sense of some cultural and social trajectories in the recent history of the city of knowledge, such as the struggle within the clergy, the still vivid impression these tensions have left on ‘the teacher’, and the struggle for appropriation and domestication of Nur al-Din’s legacy. But the theoretical and narrative cement, which would have provided the accounts with structural consistency, has not been thoroughly blended. A huge and effective work of deconstruction crosses the whole book: of the works analysed, the words of the informant, and the entire cultural texture of the town. By locating the analysed tokens in their Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 113 historical context and reading them through the lens of the anthropologist, Manoukian unveils trajectories of the learned Shirazi universe that would otherwise have remained obscured. In discussing, for example, two 1950s local histories, the author examines the context in which they were produced, their fate in revolutionary Iran, their reception, and the local consumption of such historical works during the 1990s. The discussion of ‘local histories’ becomes here a chance to produce a local history of historical book consumption and readership. In Chapter 6, Manoukian attempts to demonstrate how poetry is ‘a crucial axis of self-formation and the site in which forms of knowledge, technologies of power and processes of subject formation find their pivotal point of encounter’ (205). If the work of the anthropologist is, among others, to problematise what is taken for granted to give meaning and significance to what appears obvious, Manoukian is successful in problematising the widely recognised penchant of the Iranians for poetry. While the contention that ‘poetry is the form in which Iranians experience themselves as subjects endowed with the power to act and live in the world’ (205) may be slightly exaggerated in its lack of nuances and absoluteness (I personally know many Iranians who ‘experience themselves as subjects’ without the need to resort to poetry), Manoukian brings in an original handling of a topic that would otherwise incur the risk of being presented as a trite and perfunctory cliché. A manifest sense of frustration surfaces here and there throughout the entire account, a sentiment well known to ethnographic literature and often noticed and accounted for by anthropologists. There seems to be, though, something specific to doing fieldwork in Iran-related environments in Manoukian’s account, as I can easily relate it to the frustration I tried to make sense of in my recent work on the hawzah: imbalanced power dynamics; the sensitiveness of political circumstances; the cautious condescendence of informants; and the conflict between what has to be done, asked and researched, and what can in fact be done at any given circumstances. Anyone who has conducted ethnographical research in post-revolutionary Iran cannot but detect the joys and pains of their own fieldwork in the following words, where the author reconstructs the arrangement, made by ‘the teacher’, of his two meetings with an old local poet: This strategy of deferred revelation was aimed both at keeping my attention tuned by raising the expectations […] and also Book Reviews 114 […] to make sure that […] I could not explore too much some information that came up in those meetings. […] The intended aim of the meeting […] was to talk about the 1950s. However, the teacher thought that to overcome [the poet’s] reticence, it would be better to tell him that my primary objective was to meet a great poet. I was introduced as someone working on local poets […]. Poetry was the way into politics. This strategy effectively worked to produce the 1950s […]. The displacement of interest, by subtracting attention from the intended aim of the meeting[,] diffused the tension which direct questions would have generated […]. (196) This is but one passage where this frustration is felt and overcome, and Manoukian succeeds in exposing the negotiation process and the self-reflection he had to go through in order to extract ethnographic substance from a relationship that, to some extent, was problematic: during his encounters, he is often, albeit always politely – the way an authoritative father would do with a son – told to ‘stop taking notes’, not to address this or that question, kept unaware of connections and away from given sources, and surreptitiously guided to directions different from the one he would otherwise venture towards. He has to literally negotiate his way through interdicts and caveats. Despite a certain number of errors in the transliteration (for example, Gholam ÝAli Hadad ÝÀdil for GhulÁm ÝAlÐ ÍaddÁd ÝÀdil (54); tÁrikhÐ for tÁrÐkhÐ and Árzish for arzish (70); bourj for burj (117); hawsa for Îawza and fatva for fatvÁ (147); ÐslÁmÐ for islÁmÐ (151), but any perfunctory survey would pick many others), the amount of which suggests a hasty editing process, and a few awkward statements betraying poor familiarity with religious studies, City of Knowledge is a fine piece of research which adds an important building block to the academic knowledge of Shiraz and Iran, and opens up further avenues of research for those interested in studying Iran from an anthropological angle. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 115 Diwan al-Shi‘r al-Farsi (al-juz’ al-awwal, al-qarn al-rabi‘ – al-tasi‘) by Muhammad Sadiq Muhammad (al-Karbasi), 2011. (Da’irat al-Ma‘arif al- Husayniyyah (The Hussaini Encyclopedia), vol. 77.) London: Hussaini Centre for Research, 448 pp. ISBN: 978-1-902490-89-2. M O H A M M A D E . M E S B A H I The Islamic College, London, UK M O H A M M A D M . B A G H I The Islamic College, London, UK Muhammad Sadiq Muhammad al-Karbasi is the Founding Director of the Hussaini Centre for Research, a registered charity in London and the author of this voluminous Arabic encyclopaedia dedicated to Imam al-Husayn, with seventy-seven volumes printed and over six hundred volumes anticipated in total. This assiduous compiler has dedicated his life to incorporating and categorising copious materials published in numerous works, all devoted the unparalleled personality of al-Husayn ibn ‘Ali (A). The Hussaini Encyclopedia is a historic, timely, and very ambitious project that exemplifies a movement; the study of al-Husayn is being recognized as a heritage owing to its impact on all events thereafter particularly in recent times, drawing many cultures together. Thus it has established itself as a trans-illuminative, trans-national, trans- historical and a trans-disciplinary study of the personality of al- Husayn. This encyclopaedia is not intended to be an academic approach to a dedicated theme with al-Karbasi as the editor-in-chief of a group of experts on a range of topics, but rather a dedicated endeavour of an individual with assistance from group of researchers, poets, men-of-letters, and journalists. However this immense project has resulted in not just a mere collection of summaries on various research areas useful for believers seeking re- affirmation but noticeably a significant tool for researchers particularly outside the Middle East working on this field. The entries of this impressive collection represent an enormous amount of hard work and a significant contribution on a range of very important aspects of al-Husayn’s life such as his biography, his http://en.m.wikipedia.org/wiki/Research http://en.m.wikipedia.org/wiki/Poet http://en.m.wikipedia.org/wiki/Men_of_letters http://en.m.wikipedia.org/wiki/Journalist Book Reviews 116 thought, his conduct, the social circle of personalities around him, various dimensions of his uprising, and countless other related subjects. Other volumes discuss topics including al-Husayn in the Qur’an, al- Husayn in the Sunnah, his biography, his prayers, al-Husayn and Islamic legislation, and this history of his shrine. Nevertheless the bulk of the Hussaini Encyclopedia, in fact over a third of its volumes, focuses on poetry and literature across a range of languages. Prior to this volume, there is a volume providing an introduction to Persian poetry and the various stages of its development. That is devoted to the following: folk etymology of the term ‘Farsi’; the Indo- European family of languages; the Old Persian alphabet; the Middle Persian (Pahlavi) alphabet; Dari/Modern Persian; the Modern Persian alphabet; Indian, Turkish, English, French, and Arabic loan words in Persian; Persian dialects; Persian inflection and derivation; Persian literature and poetry; examples from Old Persian and Avestan; Persian poetry and poets in the Islamic era (a chapter is devoted to each century); Persian blank verse and its features; religious poetry and the schools of Persian poetry (such as Khurasani, Iraqi and Hindi); Persian phonological developments; and the Persian prosody and metrical system. There are also indices. The introductory volume is a good companion to the diwan of Persian poetry, making a unique contribution particularly for Arabic readers unfamiliar with Persian and European languages. However no mention is made of the various poetic forms, such as the qasidah, ghazal, qit‘ah, or mathnavi, and the contents seem to be essentially based on Dhabih Alllah Safa’s Tarikh-i Adabiyyat dar Iran (6 vols., 1332-1362 AH (solar)/1953-1983) and Ganj-i Sukhan (3 vols., 1339 AH (solar)/1960), Sa‘id Nafisi’s Tarikh-i Nazm va Nathr (2 vols., 1344 AH (solar)/1965), and also Parviz Asadi’s Farhang-i Danish va Hunar (1377 AH (solar)/1998). A more comprehensive revision based on countless other sources available in Persian would be needed to cover the wide ranging aspects of Persian language in order to make this a worthy complement to the Hussaini Encyclopedia. The encyclopaedia contains fifty-three volumes on Persian poetry together with an introductory volume and two volumes of biographies of Persian poets. It is an extraordinarily readable collection of volumes and a useful addition to any Persian literature reference collection. This volume, the diwan of Persian poetry, is the first volume in its section and spans the fourth/tenth to ninth/fifteenth centuries. It includes entries of over a hundred Persian poets of the period with detailed footnotes on their work devoted to Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 117 al-Husayn. Although not intended, nor to be used, as a primary reference for Persian poetry it aims and partially succeeds in challenging claims that Persian poetry about Imam al-Husayn largely began in the Safavid period (for example on pages 29, 50, 111, 128, 172, 264, and 303) . There are important entries on poets of this early period including, but not limited to ‘Am’aq Bukhara’i, ‘Uthman Mukhtari, Qatran Daylami, Athir al-Din Akhsikati, Zahir al-Din Faryabi, Farrukhi Sistani as well as famous poets such as Sa‘di, Hafiz, Khaqani, and Rumi. Selected vocalised Persian verses are followed by Arabic translations, annotations, prosodic metres, and references. Each entry points the way to for further research by those interested and makes this encyclopaedia an ideal tool for serious students of the field. Nevertheless this valuable work needs to be reviewed at some stage by a group of experts with an eye for detail; a corrigendum is a desideratum. Two instances of inaccuracies are: 1. On page 439, the title of Tarikh Bal‘ami has been erroneously recorded as Tarikh Tabari. Tarikh Bal‘ami, edited by Muhammad Taqi Bahar (1341 AH (solar)/1962) and Muhammad Parvin Gunabadi (1353 AH (solar)/1974, 1386 AH (solar)/2007), is an abridged translation of and supplement to Muhammad Ibn Jarir al-Tabari’s Tarikh al-Rasul wa al-Muluk. Furthermore, reference has been made to volume five, whereas the first edition the work and its reprints have been published in one single volume. 2. On page 390, under Jamshid it reads: ‘He bears the appellation “King of Hell” (malik al-jahim)’. It is worthy of note that, according to the Pahlavi Rivayat (31; 47:8) and Dadistan-i Denig (38:19-21), Jamshid was confined to hell for declining Ahura Mazda’s offer to embrace the religion; to make things worse, he had proclaimed himself the creator of the world. Zoroaster (MP Zardusht) interceded with Ahura Mazda on Jamshid’s behalf by mentioning the latter’s good deeds, such as fighting the devils and impeding people from hurting useful animals. Jamshid accepted the offer (Menog-i Khrad, 26:37), repented of his sins, and his soul was sent to Purgatory (MP Hamestagan). 1 However, Herodotus (7:114) records that Persians believed that a certain god ruled the spirits of the deceased in hell, since Jamshid had failed to find his way to paradise. Boyce wrongly maintains that the god is Jamshid, as his counterpart in the Indian tradition (e.g. Rig Veda 10.13.4), Yama, is the god of death who exchanged immortality with offspring and following his being slain was sent to hell.2 Book Reviews 118 In spite of these minor inaccuracies and a few shortcomings, we found this volume refreshing and a pleasure to read and we believe the Hussaini Encyclopaedia to be remarkable in its conception and a valuable contribution to the study of al-Husayn. Notes 1 See Arthur Christensen, Les types du premier homme et du premier roi dans l’histoire legendaire des Iraniens (Stockholm: P.A. Norstedt & So ̈ner, 1918-1934), 76. 2 Mary Boyce, A History of Zoroastrianism I (Leiden: Brill, 1975), 83-84. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 119 Book Notes Avicenna’s Deliverance: Logic, trans. and notes by Asad Q. Ahmed, 2011. (Studies in Islamic Philosophy, ed. S. Nomanul Haq.) Oxford: Oxford University Press, xxxvi + 191 pp., £9.99. ISBN: 978-0-19547-950-8. Asad Q. Ahmed gives us a full translation into English of the logical section of Ibn Sina’s book al-Najat (Deliverance), together with notes and a glossary of technical terms. In a preface he describes his use of the manuscripts. An introduction by Tony Street summarises the main points of Ibn Sina’s logic and discusses its relation both to the earlier Aristotelian tradition and to post-Avicennan Arabic logic. The Deliverance was published after Ibn Sina’s encyclopaedic al-Shifa (Book of Healing), but for the logic section of the Deliverance Ibn Sina used an earlier work of his, known in English as the Shorter Summary on Logic. So this text represents a transitional phase of Ibn Sina’s work, fully mature but before the great works of his later years. Ibn Sina is still using Aristotle's De Interpretatione and Prior and Posterior Analytics as a template. But he puts a strong emphasis on certain sentence forms that Aristotle had neglected – for example, ‘Every B is an A as long as it is a B’ – and he discusses where Aristotle’s logical rules break down if we extend them to these forms. The later sections of the text introduce us to characteristic teachings of Ibn Sina on scientific method. For example repeated experience allows us to refine the definitions which we use as starting points for scientific deductions; in this way Ibn Sina gives a role to scientific progress through experiment. Ahmed’s translation is a pioneering work; no other translations of the logic of the Deliverance are readily available in any Western language. It will certainly be a help and stimulus for further research. W I L F R I D H O D G E S Devon, UK The Nativist Prophets of Early Islamic Iran: Rural Revolt and Local Zoroastrianism by Patricia Crone, 2012. New York: Cambridge Book Notes 120 University Press, xvii + 566 pp., maps, £65.00, $99.00. ISBN: 978-1-107- 01879-2 (hbk). In The Nativist Prophets of Early Islamic Iran, Patricia Crone attempts to demonstrate that significant elements of pre-Islamic beliefs – most notably, Zoroastrian and Gnostic beliefs – persisted after both the Arab conquests and the spread of Islam in Iran. These beliefs were integrated into a number of Persian Islamic sects, and influenced the entire country after the Safavids rose to power. In Part I, which is historical in nature, she explores her thesis through a study of revolts after the Arab conquests. She indicates that she is re-evaluating material which has been previously studied before via a new approach, while including some new Chinese sources and Central Asian archaeological findings in her discussion. In Part II, she focuses on the religious beliefs themselves, such as the nature of God as light (nur), dualistic and trinitarian divine cosmologies (both Christian and otherwise), reincarnation, and the transformation and manifestation (mazhar) of God. She dedicates significant attention to the relationship of these ideas with Shi‘a ghuluww, and calls special attention to her discussion of the Ahl-i Haqq sect, which she refers to as the living remnants of the Elchasai (viii). In Part III, she examines the marital and reproductive strategies of certain groups to explore allegations of wife-sharing. Finally, in the last part, she traces the continuity of these ideas from the early Islamic to the modern period. She recommends her book to Iranists and Islamists as well as specialists in early Christianity, Gnosticism, late antiquity, gender history, the comparative history of empires, and pre-modern communism (viii). [AI] Shiism and Politics in the Middle East by Laurence Louër, trans. John King, 2012. London: C. Hurst & Co., 176 pp., $24.95. ISBN: 978-0-231- 70328-4. Translated from the original French, Shiism and Politics in the Middle East offers a layperson’s introduction to the subject indicated in the title. While the bulk of the book provides an overview of Shi‘a political history in the late twentieth century, the latter section delves into the newer subject of political developments after the fall of Saddam. Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 121 Primarily, Louër discusses the political role of Shi‘a ulema and religious organizations in the Middle East, such as Hizbullah, the Da‘wah party, and the most politically influential marja‘s. As might be expected, Iranian hegemony is a central topic of discussion. However, Louër argues that while the Arab Shi‘a were ideologically influenced by the Iranian Revolution, in practice, local concerns had a greater practical impact on these regions than the exertion of Iranian political influence. It should be noted that, since the book was originally written in 2008, it does not cover some of the most ground-breaking events among Arab Shi‘a in recent years, such as the uprisings in Sa‘udi Arabia and Bahrain, although it does discuss the roots of these uprisings and events. [AI] ÑÙfÐ Commentaries on the Qur’an in Classical Islam by Kristin Zahra Sands, 2006. (Routledge Studies in the Quran.) London & New York: Routledge, 196 + viii pp., £110.00. ISBN: 978-0-415-36685-4 (hbk). The author’s ambition is to study the relationship of the Sufis with the Qur’an in a more comprehensive way than has been done before, elaborating on the debate started by Goldziher in the early twentieth century, continued by Massignon and Nwyia, and continuing on up to Corbin, Chittick, and Bowering. Sands gives a very useful and articulated introduction to the concepts of zahir and batin in the early interpretations of the Qur’an, which serves as an introduction to the whole work. Numerous translations of key passages of important authors – basically Sufi commentaries on the hadith of Ibn Mas‘ud – are also provided. Then the author goes on to give detailed account of the muhkam/mutashabih debate in early exegesis. This also serves as a valuable introductory account which makes for an account of general Sufi understanding of the concept, preparing the way, through an assessment of the Sufi understanding of knowledge, to the treatment of the relationship between exegesis and spiritual realisation in Sufism in Chapter Three. The choice of the authors analysed looks at times slightly arbitrary. In Chapter Four, for example, Sands talks of the methods of interpretation in different Sufi authors (who include Sarraj, Ghazali, Ibn ‘Arabi, Nishaburi, al-Kashani, and Simnani), although this selection does not result in a sampling of distinct Book Notes 122 methods characterized by each author. Nevertheless, she succeeds in providing a glimpse of different articulations of the Sufis methods of interpretation. A chronological presentation of major Sufi tafsirs and their authors is also provided. This presentation gives an idea of the different approaches to and of the evolution of the genre over history, from al-Tustari to the ta’wilat al-najmiyyah, including Sulami, Qushayri, Ghazali, Maybudi, Ruzbihan Baqli, and Kashani. This presentation opens Part II of the book, where three chapters (7, 8 and 9) are devoted to the history of Sufi interpretations of three key Qur’anic passages: the story of Musa and Khidr, the verses on Maryam, and the Light Verse. The book closes with an appendix in which the author gives some basic notes on the non-Sufi commentators referred to in the work, plus a glossary, an index of hadith, and an index of names and terms. [AC] The Essentials of IbÁÃÐ Islam by Valerie J. Hoffman, 2012. Syracuse: Syracuse University Press, 344 + xii pp., $39.95. ISBN: 978-0-815-63288-7 (hbk). This book sheds light on the distinctive theology of the often overlooked Ibadi sect of Islam which emerged early in Islamic history and survives today primarily in areas of North Africa as well as Oman, where the majority of the research for this book was conducted. It is one of the few academic works in English to discuss Ibadi theology and thus fills a gap in the current literature. Additionally, the author states her intention to allow Ibadi scholars to speak for themselves rather than presenting Ibadism in the views of non-Ibadis, as often happens. And so, after offering a concise overview of Ibadi history and thought, the author presents annotated translations of two Ibadi doctrinal works. The first is al-‘Aqidah al-Wahbiyyah by Nasir ibn Salim ibn ‘Udayyam al-Rawahi; this takes the form of a catechismal dialogue between a teacher and student in which they ‘discuss’ topics such as the unity, attributes, and essence of God; the impossibility of seeing God; wilayah and bara’ah (which the author translates as ‘affiliation’ and ‘dissociation’); knowledge and action; and the status of non-Muslims. Next, to provide insight into subjects not discussed in al-‘Aqidah al- Wahbiyyah, the author includes translations of selections on God’s power and human acts from Kitab Ma‘alim al-Din by ‘Abd al-‘Aziz al- Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 123 Thamini al-Mus‘abi. The book concludes with a brief biographical dictionary of both Ibadi and non-Ibadi scholarly figures which should prove helpful to the non-specialist. [AI] Islamic Insights: Writings and Reviews by John Andrew Morrow, 2012. Qum: Ansariyan, 478 pp. ISBN: 978-9-642-19259-5 (hbk). Islamic Insights is a collection of academic writings by John Andrew Morrow, a professor and author specializing in Islamic studies, particularly Sufism and Shi‘ism. While some of the articles discuss linguistic or literary topics, such as the word ‘Allah’ in Arabic and the significance and influence of the Arabic language, a number of the articles focus on issues of contemporary significance, such as conversion to Islam in America (including three articles on Malcolm X), anti-Islamism in France, al-Qa’idah, world politics pertaining to Iran, the nuclear threat, and the dearth of leadership among Muslims today. Of particular interest to specialists in Shi‘ism may be an article on Shi‘ism in Morocco and an article comparing The Poem of the Cid to rawzih khani. Other topics include but are not limited to early Islamic history and Islamic medicine. Although these articles were previously printed elsewhere, they are compiled here to make this research more readily available to the interested layperson who may not have easy access to academic publications. This collection demonstrates the span and depth of Morrow’s writings, and, with the variety of topics, should provide something for everyone interested in studies of Islam, either historical or contemporary. [AI] Journal of Shi‘a Islamic Studies Winter 2013 ∙ Vol. VI ∙ No. 1 125 Transliteration For transliteration from languages which use Arabic script the use of diacritics has been avoided in order to present the text of the journal in a uniform and uncluttered manner. A table of transliterated key terms – complete with diacritics and native script – has been included at the end of an article where it is necessary to avoid confusion. TRANSLITERATION KEY: Arab./Pers./ Urdu Letter Roman Equivalent Arab./Pers./ Urdu Letter Roman Equivalent sh ش ’ ء Ò ص a ا Ã ض b ب Ô ط p پ Û ظ t ت ‘ ع × ٹ gh غ th ث f ف j ج q ق ch چ k ك Î ح g گ kh خ l ل d د m م Æ ڈ n ن dh ذ h ه r ر w و r ڑ y ى z ز h or t ة zh ژ s س Short Vowels Long Vowels Diphthongs aw ــَـو Á ىٰ or آ a ــَـ یــَ Ù ــُـو u ــُـ ay يــِـ i ــِـ Ð Transliteration 126 NOTES: The Definite Article: The Arabic definite article ‘al ’ ( a l w a y s f o l l o w e d b y a d a s h ) is only capitalised at the beginning of a sentence, name, or heading, e.g. ‘Hasan al-Basri’ or ‘Al-Basri’. The definite article is never assimilated or abbreviated e.g. ‘hujjatu-l islam’, ‘al-qur’an ul-karim’, ‘huruf ash-shamsiyyah’, ‘ar- rahmanir rahim’, and ‘bidayat ‘l-hikmah’ are all incorrect. When a noun (mawsuf ) is followed by an adjective (siffah), include the definite article ‘al’ before both, e.g. ‘al-harakat al-jawhariyyah’ not ‘harakat al-jawhariyyah’. Construct phrases: Only the second word of the Arabic idafah takes ‘al’ e.g. ‘salat al-fajr’ not ‘al-salat al-fajr’. For Persian, the final kasrah of the word in the construct state (muzaf ) is transliterated as ‘-i’ unless the word ends in a ‘y’, e.g. ‘Bank-i Markazi-yi Iran’ and ‘Hawzih-i ‘Ilmiyyih-i Qum’. Patronymic particles: The patronymic particles ‘bint’ and ‘ibn’ should only be capitalised if at the beginning of a name i.e. ‘Ibn Sina’ is correct and so is ‘Ali ibn Sina’, but ‘Ali Ibn Sina’ is incorrect. Kunyas (e.g. Abu, Abi, Aba, Umm) are to be capitalized and never assimilated e.g. ‘Bintal Huda’ and ‘Abulqasim’ are incorrect. ‘Bin’ and ‘b.’ should not be used. Naturalised words: Words that have been admitted into the English language should be transliterated according to their common spelling. For example, ‘Ayatollah’ not ‘Ayat Allah’ and ‘ Shi‘a ’ not ‘Shi‘i ’. Capitalisation: Transliterated words should be capitalised according to English convention, that is, at the beginning of sentences, in titles, and for names. However, when transliterating a sentence or phrase, capitalisation is not required. Dashes: Where it is thought useful dashes may be used to indicate prefixes and suffixes, e.g. ‘pish-namaz ’ and ‘kitab-ha-yi dini ’ (in Persian) and ‘li-takunu’ and ‘bi-buyutihim’ (in Arabic). Inflexion: The inflexion of the end letter of a word is not usually indicated, e.g. ‘qawl wa fi‘l’ not ‘qawlun wa fi‘lun’. On occasions it is warranted, e.g. ‘sami‘tu al-adhan’ not ‘sami‘t al-adhan’ and ‘hayya ala al-salah’ not ‘hayy ala al- salah’. Miscellaneous: In Farsi transliterate with ‘v’ rather than ‘w’, except for cases like ‘khwajih’. For Arabic when ta marbutah occurs in the middle of a phrase transliterate as ‘t’ rather than ‘h’, e.g. ‘jazirat al-‘arab’. Modern Tukish spellings should be used for Ottoman Turkish. For more information see our website. Imam ‘Ali’s Theory of Justice Revisited Ali Paya Plato on justice 0F Popper’s criticism of Plato Aristotle’s theory of justice Popper’s and Rawls’s theories of justice A reconstruction of Imam Ali’s theory of justice 1. Equality of human beings in their humanity 2. Taking side with the oppressed in the struggle against the oppressor 3. Public participation 4. The objective nature of justice 5. Justice as fairness Conclusion The Establishment of the Office of the Shurtah during the Caliphate of ‘Ali ibn Abi Talib Alireza Ashtari Tafreshi Ali Bayat Fatemeh Ahmadvand Introduction 58F The shurtah before the caliphate of ‘Ali The shurtah during the caliphate of ‘Ali (35-40 ah) Shurtah, shurtat al-khamis, or shurtat al-jaysh? Conclusion Table of Key Transliterated Terms The Shi‘a of Baghdad at the time of the ‘Abbasid Caliphs and the Seljuq Sultanate (447-575 ah) Mohammad Taher Ya’ghoubi Asghar Montazerolghaem Introduction 1. The Presence of the Seljuqs in Baghdad 2. The relationship between the Seljuq sultans and the ‘Abbasid caliphs 3. A Look at the Sectarian Politics of the Seljuqs and its Effect on the Situation of the Shi‘a 4. The Shi‘a of Baghdad, the caliphs, and the Sunnis Conclusion Beyond the Karbala Paradigm: Rethinking Revolution and Redemption in Twelver Shi‘a Mourning Rituals Edith Szanto Introduction The Karbala Paradigm At the shrine Affective mourning practices ‘Revolutionary’ and ‘salvific’ interpretations Conclusion Table of Key Transliterated Terms Sumaiya A. Hamdani Andrew Rippin Faharis al-Shi‘ah by Mahdi Khuddamiyan al-Arani, 1431 ah/2010. Qum: Mu’assasat Turath al-Shi‘ah, 1,389 pp., 21,000 riyals. (English title: Shiite Hadith Bibliography: An Introduction by Mahdi Khod’amiyan Arani. Qom: Shiite Bio-Bibliographical Institut... Karim Douglas Crow Alessandro Cancian Mohammad E. Mesbahi Mohammad M. Baghi wilfrid hodges 
work_suuny2omvvawxc3sjodwgt237a	----	Justice in Residency Placement, Mar 03 ... AMA Journal of Ethics Virtual Mentor. March 2003, Volume 5, Number 3. doi: 10.1001/virtualmentor.2003.5.3.pfor1-0303 Policy Forum Justice in Residency Placement Bioethicist D. Michah Hester questions the current residency match program and suggests that residents be placed according to random assignments. Timothy F. Murphy, PhD Residency training is an essential component of medical education and is required in most jurisdictions for licensure as an independent medical practitioner. In the United States, a matching system assigns approximately 23,000 applicants to residency training programs in the areas of pediatrics, obstetrics and gynecology, internal medicine, and the rest. The system has been in place since 1952 and is overseen by the National Residency Match Program, a non-profit organization. Rank order lists are at the heart of the Match. An applicant picks a number of residency programs and ranks them according to preference. The residency program prepares a similar list, ranking the candidates it most wants in its program. A computer program compares the rankings and makes assignments according to a certain algorithm. These assignments are then announced to all parties on specific days. This system is effective in a number of ways. First of all, it standardizes the timetable for decisions; applicants are in no position to tie up offers while waiting to hear from another institution, and institutions are not held captive in making assignments while waiting to hear from particular parties. A bioethicist at Mercer University, D. Micah Hester, has recently argued that the match system is incompatible with the core values of medicine [1]. Hester's chief criticism is that the current match program embodies a competitiveness that corrupts core values in medicine. According to Hester the competition involved in the Match encourages values that are antithetical to the medical profession. He says that "so long as competitive practices run rampant in institutionalized activities such as residency matching, medicine simply will never fully meet the concerns of the people who need its help and a society that needs its comfort" [2]. In short, medicine is hyper-competitive, the Match is part of this syndrome, and we all suffer as a result. Hester proposes an alternative to the Match as it currently exists: random assignment. Under his proposal, all candidates would stand an equal chance of being selected for each residency opening in a designated discipline. For example, each candidate interested in a pediatrics residency would be assigned at random to one of the available slots in pediatrics residencies around the country. There would be no rank order lists and no communication between candidates and institutions. This approach would—as Hester does not fail to note—eliminate personal choice altogether. In addition to curbing the competition involved in jockeying for candidates and positions, Hester says this approach would free up new resources and energies: "Eliminating the competitive match system would provide residency programs and candidates with the resources to work on other more pressing issues. More time, energy, and money could go to support such concerns and activities as better salaries and hours for residents, outreach programs, deeper professionalism, and ethics and humanities education—concerns and activities that go to the heart of moral medical care" [3]. This is a drastic proposal and, I think, unwarranted both in terms of damaging effects on residency programs and the undermining of personal choice. Medical residencies are not equal in terms of what they prepare their residents to do and how well they achieve their goals. There is a social division of labor in terms of what residencies are training their physicians to do, and they are 72 72 file:///2003/03/toc-0303.html not interchangeable replicas of one another. Some residencies are much more likely than others to encourage their trainees to engage in clinical research, to assume academic posts, and to go on to leadership roles in the profession. Others are much more likely to channel their trainees into certain kinds of practice, for example, working in institutions that provide large amounts of charitable care. It does matter which students are tracked into residencies because these programs train particular people whose knowledge and skills are fundamental to the design of the health care system, produce trainees who are expert in the management of certain kinds of patients, and develop the skills of particular people who will fill specific roles in the delivery of health care. It is reasonable to believe that random assignment of residents would undercut this division of labor and compromise the ability of residencies to achieve their important social goals. When it comes to the fate of residents themselves, there are important reasons to avoid complete randomness in residency assignment. For example, many residents are married and have children. Some residents have primary responsibility as caregivers for aging or sickly parents. It would be a fundamental hardship to say that these residents should have no say whatsoever in where they train. A decision to pursue a particular residency is not only about where one continues medical education; it also reflects choices about one's familial and financial interests. For some residents it would be a hardship in the extreme to move their families from Florida to Alaska or to relocate them to rural programs far from their families. In another instance, it would be an undue economic hardship to ask some residents to shoulder the unwanted costs of residency in Manhattan when they actually prefer less costly living in a smaller city in the South. These kinds of complications could be multiplied without much difficulty. That some residencies last 6 and 7 years makes it all the more important to recognize that random assignment in residency could create and magnify all kinds of problems for trainees. Hester does acknowledge that some residents would be resentful about assignments given to them by chance, but he thinks that this resentment would be offset by the value of being exposed to trainees from all across the country. He says that residency programs with their supply of trainees chosen at random "would benefit from having fully supplied medical staffs and residents from an array of educational backgrounds, and the diverse residents could learn from each other while providing care for otherwise underserved patients." On the flip side of the equation, if it is in fact the case that some residency programs are better than others, these so-called "top" programs would have the opportunity to work with a variety of residents from different schools and backgrounds, residents who might not otherwise have had the opportunity to learn from the "best." In response, it must be said that it is not clear how random assignment would necessarily improve care for underserved patients. A lottery might help distribute talent more broadly across residencies, but by itself this would not mean that underserved patients would necessarily receive better care. If "the best" medical graduates do not like their placement, lingering resentment could work to sabotage the quality of patient care they deliver as residents. Hester goes on to compare his proposal for random assignment to the kind of drafting that occurs in professional sports. Many professional athletes are assigned to teams without their having a say in the matter—and their families and living preferences are not taken into consideration. Hester wonders why this same attitude—it is enough for small town heroes to play in the National Football League no matter where they end up—should not also prevail in medicine. In other words, the rewards of being in medicine should override any specific concerns about where one wants to live and train. It is not clear, however, that random assignment would promote selfless values in physicians any more than it does in professional football recruits. Random assignment would undoubtedly disrupt important interests for more than a few residents—a disruption which could easily undermine selfless attitudes. Moreover, it is certainly not clear that random assignment would make trainees better diagnosticians, better therapists, or even help them exhibit more humane behaviors toward patients. Simmering resentment could corrode humane values and foster poor clinical habits just as badly—if not more so—than the competitive aspects of the Match. Even professional football players—the best of them anyway—try to control where they play, especially those concerned with the rewards of league victories, championship rings, and commercial endorsements. Over and above the effect random assignment would have on residents, a lottery system could also be expected to undercut motive and effort among medical students. Certain medical school graduates are better than others with regard to their capacities in diagnostics, in therapeutic judgments, and interpersonal skills. It is to be wondered what incentive there would be for medical students to strive toward superior achievement if residency assignment turned a blind eye toward all accomplishment and occurred only by chance. It might well be true that some students would go 73 73 the extra mile in medical school, those who do so for personal satisfaction or some other intrinsic reward. However, it is hard to believe that performance would not suffer if extra efforts could not, could never help in securing a preferred residency. And, to continue the theme of performance for a moment, it is hard to see that one would be doing the poorest performing students any favor by placing them in the most demanding residencies in the nation. By extension, it would be doing little favor to burden highly functional residencies with applicants who have done little more than stumble and limp their way to a diploma. After all, it is not only talent that would be randomly distribute, a lottery would distribute the opposite of talent—whatever one wants to call that—as well. Hester does acknowledge that random assignment would mean the loss of personal choice, but he believes this loss is acceptable because of the way in which residency competition would be undercut. It is simply untrue, of course, that once some resources are freed up that these would flow automatically to more noble causes. For example, physicians involved in overseeing residency recruitment—interviews, answering questions, preparing promotional materials, ranking candidates—might just as easily turn their attention to clinical revenue as to improving humanistic education of residents. Lastly, there is also an important difficulty in Hester's claim that the Match operates in a way that is inconsistent with the core values of medicine. The preservation of choice is one core value in medicine, one that undergirds patient- physician encounters. The American Medical Association Principles of Medical Ethics asserts that "A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care" [4]. In other words, choice is a core value of medicine because it is important to both patient and physician alike to enter into mutually satisfactory relationships. To put it another way, except for emergency or court-ordered treatment, health care relationships should not be random or involuntary. It is hard to understand why this principle—so important to health care relationships—should not also extend to educational relationships. In one study of residency applicants, only 4 percent of the respondents believed that the Match should be completely overhauled [5]. Whatever the problems of the Match system are, it is not clear that residency assignments made at random will solve them without also causing broad, systemic problems on a large scale. It is one thing to dream of medicine that is shorn of the worst effects of competition and that is fully committed to ethics, professionalism, and humanities. There is no reason, though, to think that a lottery system would help achieve these goals in any meaningful way. There is no obvious reason to think that revolution rather than reform should be the appropriate response to problems in the Match. References 1. Hester DM. Rethinking the residency matching process and questioning the value of competition in medicine. Acad Med. 2001;76:345-347. PubMed Google Scholar 2. Hester, 345. 3. Hester, 346. 4. American Medical Association. Principles of medical ethics. June 2001. Available at: http://www.ama- assn.org/ama/pub/category/2512.html. Accessed February 18, 2003. 5. Anderson KD, Jacobs DM, Blue AV. Is match ethics an oxymoron? Am J Surg. 1999;177:237-239. View Article PubMed Google Scholar Timothy Murphy, PhD, is professor of philosophy in the biomedical sciences in the Department of Medical Education at the University of Illinois College of Medicine in Chicago. He is a 2002-2003 visiting scholar in the AMA's Institute for Ethics. The viewpoints expressed on this site are those of the authors and do not necessarily reflect the views and policies of 74 74 https://www.ncbi.nlm.nih.gov/pubmed?term=2001%5Bpdat%5D+AND+Rethinking+the+residency+matching+process+and+questioning+the+value+of+competition+in+medicine&TransSchema=title&cmd=detailssearch https://scholar.google.com/scholar_lookup?title=Rethinking%20the%20residency%20matching%20process%20and%20questioning%20the%20value%20of%20competition%20in%20medicine&author=Hester%20DM.&publication_year=2001 http://www.ama-assn.org/ama/pub/category/2512.html http://www.ama-assn.org/ama/pub/category/2512.html https://doi.org/10.1016/S0002-9610(99)00019-7 https://www.ncbi.nlm.nih.gov/pubmed?term=1999%5Bpdat%5D+AND+Is+match+ethics+an+oxymoron%3F&TransSchema=title&cmd=detailssearch https://scholar.google.com/scholar_lookup?title=Is%20match%20ethics%20an%20oxymoron?&author=Anderson%20KD,%20Jacobs%20DM,%20Blue%20AV.&publication_year=1999 the AMA. © 2003 American Medical Association. All Rights Reserved. 75 75 Local Disk Justice in Residency Placement, Mar 03 ... AMA Journal of Ethics 
work_sxj6yrbygjcztjfcx434b7fgyi	----	DOCUMENT RESUME ED 366 535 SO 023 690 AUTHOR Makler, Andra TITLE Social Studies Teachers' Conceptions of Justice. PUB DATE 19 Nov 93 NOTE 25p.; Paper prepared for the Annual Meeting of the National Council for the Social Studies (Nashville, TN, November 1993). Title on cover page is "Teachers' Conceptions of Justice." PUB TYPE Reports - Research/Technical (143) Speeches/Conference Papers (150) EDRS PRICE DESCRIPTORS ABSTRACT MF01/PC01 Plus Postage. Attitude Measures; Definitions; Educational Research; Elementary School Teachers; Elementary Secondary Education; *Ethical Instruction; Interviews; *Justice; Moral Values; Secondary School Teachers; *Sex Differences; *Social Studies; *Teacher Attitudes Prior research suggests that while males tend to equate justice with fairness, females associate justice with a responsiveness to individual circumstances that embodies an ethic of care. This document reports the conclusions of research examining what conceptions of justice are embedded in the taught curriculum and whether male and female teachers hold and express different views of justice. Eighteen teachers submitted to interviews for the study: All felt "teaching justice" was important and could cite specific topics and materials in use in their curricula. Two thirds claimed to teach about justice directly and intentionally, and the other third claimed to do so indirectly. Definitions of justice emerged as primary theme clusters: (1) justice as right anc wrong; (2) justice as fairness; and (3) justice as an ideal or standard. All teachers drew on ideas from all three clusters. Two secondary themes emerged: the idea of justice as requiring moral action and a belief in the relativity of justice. Language and examples that teachers offered were consistent across gender lines. The paper concludes that the topic is worthy of further investigation. Contains 30 references. (SG) *********************************************************************** Reproductions supplied by EDRS are the best that can be made from the original document. *********************************************************************** TEACHERS' CONCEPTIONS OF JUSTICE Andra Mak ler Lewis & Clark College Graduate School of Professional Studies Paper prepared for College and University Faculty Association National Council for the Social Studies Annual Meeting November 19, 1993 Nashville, Tennessee Please do not quote or reprint any sections without permission of author. 2 BEST COPY AVAILABLE DEPARTMENT OP EDUCATION Office ot Educebonal Wasatch and Improvement XUCAT1ONAL RESOURCES INFORMATION CENTER (ERIC) rsut document has Imien reproduced 11111 conmod 'rom the person or organization oripinatint, 0 Minor chenges hays been made to improve reproduction Quality Points ot view or opinions stated in this docu- ment do not necettaarily represent official OERI POsition or pokcy "PERMISSION TO REPRODUCE THIS MATERIAL HAS BEEN GRANTED BY NV-DO-Pr TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC)." 1 SOCIAL STUDIES TEACHERS' CONCEPTIONS OF JUSTICE As social studies specialist in a small liberal arts college, I supervise preservice Master of Arts in Teaching candidates who are seeking social studies cenification. On a routine visit to an inner city high school, I observed a lesson in a required global studies course for 9th and 10th graders and older students who had failed the class before. Desks stretched literally from wall to wall; every seat was taken. The students mirrored the city's population mix: mainly white, some African-Americans (a few wore medallions showing the map of Africa), students from several Southeast Asian countries, and a few students of Hispanic background. The cooperating teacher was seated at her desk in front near the door. The lesson was about Ghandi's use of civil disobedience as a tactic against the British in South Africa. The student teacher, a lawyer changing careers, described the lesson to me as "teaching about justice," but the word justice was not mentioned during the lesson. He encouraged students to pay attention and be polite to each other, as he guided them to consider issues of dignity and human rights. He responded to courteously to a young woman who challenged him repeatedly and aggressively, treating her comments as serious questions. Suddenly, the cooperating teacher stood up and ordered the young woman to stop interrupting the class and to show proper respect; she delivered what amounted to a mini-lecture on her classroom rules and then turned the class back to the student teacher. I sat wondering: What about justice did that young woman and the rest of the class internalize from the lesson as it unfolded that day, or any day? That question became the impetus for research described in this paper. Framework for the Study The dominant paradigm in Western political science and philosophy equates justice with fairness (e.g., Rawls, 1971) and defines justice as a proportionate (as in Aristotle's Nichomachean Ethics). Lawrence Kohlberg (1980, 1985) drew heavily upon this paradigm in proposing that schools should be organized as just communities. Studies conducted by Carol Gilligan and others at the Harvard Graduate School of Education Center for the Study of Gender (Gilligan, 1982; Lyons, 1983; Ward, 1989) suggest that adult and adolescent females find the equation of justice with fairness problematic. These studies claim that conceptions of justice are gender-associated, that males tend to accept the equation of justice with fairness more often than females, and that females tend to link justice with a responsiveness to individual circumstances that embodies an ethic of care. These studies and my experience in schools led me to wonder what conceptions of justice were embedded in taught curriculum and whether male and female teachers held and expressed different concepts of justice. 3 2 I responded to an American Bar Association Special Committee on Youth Education for Citizenship announcement of an invitational research seminar with a proposal to study the ways teachers' conceptions of justice were or were not manifest in the taught curriculum. The growing research literature on teachers' 'personal practical knowledge" (Connelly and Clandinin, 1985) and the relationship between pedagogical content knowledge and subject matter knowledge (Shulman, 1987) suggests that biography and schooling intersect in teachers' curricular and instructional decisions in complicated ways. This paper reports on my efforts to understand social studies teachers' concepts of justice and whether they believe they teach about justice in their curricula. Eventually I hope to interview students to determine what understandings (if any) about justice they develop from lessons their teachers believe to be focused on issues of justice. For information about whether justice generally was included as a topic in social studies classes, I contacted the state director of the Law Related Education program, reviewed published LRE curricula, the Oregon Common Cupiculum Goals for Social 5tudies, and school district curriculum guides, and interviewed the social studies specialist for the Oregon Department of Education. I also conducted a literature search to renew my acquaintance with the range of theoretical perspectives on justice. Four main research questions frame this study: - Do teachers believe they teach about justice in their curricula and what are their reasons for saying yes or no? -If justice is part of their curricula, how is it presented? - How do social studies teachers conceptualize justice? (Are there differences between those with Law Related Education backgrounds and those without?) - Do male and female teachers conceptualize and teach about justice in significantly different ways? If so what do these differences look like? To find out about teachers' conceptions of justice and their teaching, I constructed an open-ended interview guide (Dex:er, 1970; Spradley, 1979). The interviews were typically one hour long, recorded with the teacher's permission, and transcribed by an aide. I sent each teacher a transcript of his or her interview to make any changes, deletions, additions, or corrections. Teachers either returned corrected transcripts or telephoned to say that they wished to make no substantive changes. I then analyzed the transcripts, noting patterns that emerged from teachers' discussions of justice (Glaser & Strauss, 1976), and check( ,:br gender-associated ideas about justice. ,Sgirgdigaikhrticipatinglgadraa Practical and theoretical considerations guided selection of teachers to interview. I wanted teachers from a mix of suburban and city schools with reputations as good social 3 studies teachers and an equal number of male and female teachers, if possible. I obtained a list of all social studies teachers with law-related education training in Oregon and also drew upon those who had scivel as cooperating teachers for prospective teachers at my college, many of whom had participated in LRE workshops. Since many social studies teachers are male coaches, I broadened the sample to include those with middle school experience, those who taught language arts as well as social studies, and those with as few as three years of teaching experience. Although some researchers caution against interviewing those you know well (Seidman, 1992), it has been my experience that it is easier to have a txue conversation with teachers who do not regard me as a stranger (see Carter, 1993). I did not want teachers to feel I was judging their curricula or teaching. I interviewed 18 teachers: 16 high school teachers (10 male [M]-2 African-American), 6 female [] and 2 female middle school teachers (one had just transferred to the inner city high school that received her middle school's graduates). Twelve had mentored pre- service students in our program, three were graduates of one of our programs, and two were recommended by teachers already interviewed. Education and Experience Seven teachers held undergraduate degrees from private liberal arts colleges, nine from large state universities. Prior to 1989, Oregon required all secondary teachers to obtain a second (Standard) teaching certificate, based upon completion of 45 graduate hours of coursework an approved teacher education program, within six years of receipt of their initial (Basic) Certificate. Teachers often combine work for their Standard Certificate and a Master's degree. Eleven teachers held Masters degrees (2 M.A.T., 2 M.Ed., 2 M.S. (psychology, social science), 3 M.A. (anthropology, history, political science 1). Five teachers were currently enrolled in Masters' degree programs (4 M.A.T., 1 M.A. in history). Nine teachers had completed substantial post-graduate course work, including special seminars (e.g., those funded by the National Endowment for the Humanities). Three teachers with the Standard Certificate neither held a Master's degree nor were enrolled in graduate programs. Five teachers had taken Law Related Education courses; three were males with substantial involvement in LRE including program and curriculum development. Teaching experience ranged from three to thirty years (3 years - 3F; 8-12 years - 3M, 1F; 16-20 years - 4M, 3F; 21-30 years - 3M, 1F). Twelve teachers were certified to teach social studies and another subject (including 1 lifetime certificate to teach all subjects, 4 Language Arts, 1 French, 1 TeSOL, 1 Physical Education, 1 Home Economics and 1 Administrative certificate). One teacher was wOrking towards a -license to teach Japanese. 5 4 Teachers Responses Scope of This Paper The interviews elicited such rich data that I cannot report all of it in one paper. I focus here on responses to four of the 25 questions: - Do you teach about justice in any of your classes? Tell me about this. - Have you always done this or is this relatively new for you? -If a student in one of your classes [pick a class teacher has identified as one where slhe teaches about justice] , asked you to define justice, what might you say? - Please think for a moment, would you say there were different kinds of justice? Say more about your idea. [Probe: how would you describe or classify the kind of justice citizens are entitled to expect from their government? ...in the work place? ...in international affairs? in relations between individualsn This question was used to permit teachers uneasy with the idea of justice as application of a rule or principle to voice their concerns about the need to make exceptions for context and relationship; I wanted to see whether a gender-associated difference would emerge and whether male and female teachers would report themselves highlighting different aspects of justice in their curricula. In reproducing teachers' comments, I have distinguished places where I amended teachers' language in the tan 3cript . 1 from a pause or a trailing off of teachers' words as part of their original remarks [...]. All names are fictitious. Do You Teach About Justice in Any of Your Classes? Twelve teachers responded unequivocally that they taught about justice; six claimed they did this "without a doubt" or "in all their classes." One said, "I hope I do. If I'm not, I'm leading students astray." The other six qualified their responses by noting that while "I don't have a topic called 'justice'... I think I get at the issue of justice," or saying, "Yes and no; sometimes directly, sometimes indirectly." A middle school teacher reflected, "I think it starts in my curriculum just like interpersonal stuff. . . just teaching kids how to interact and not tell each other to "shut up" all the time." High school teachers felt that "justice isn't something you can cram down people's throat, you know. I don't have the right answer. But I can see where justice is," and that "the idea of justice certainly comes up numerous times during the school year in a number of different settings." One high school teacher said, "No, not per se. I mean I don't really know what justice is. . . there are a couple of working definitions... We discuss the concept of 'just', but I don't teach justice." The probe Have you always included teaching about justice? elicited unexpected stories. Sandra Thomas said she'd done this "from the beginning. It's always been part of the curriculum for me:" Her motive was to prompt a form of social action: 5 I think it gets back to my initial reasons for wanting to be a . . . teacher. . . to get kids to examine what they hold dearly for themselves and to understand . .. what their role is in trying to make a fairer society. . . Some of these kids are thinking about being big business people...CEO's... Maybe we can get them to. .. think about the injustice that can occur... maybe they'll think about regulation .. . where there's fairness lacking. Sometimes government regulation can even the scales out a bit . . . . I would just hope that kids would set that without threatening.. . what they think is their life style, you know? . I think that when you talk about fairness and remedying injustice, it's threatening to kids too. Middle school teacher Patricia Dean ascribed her motivation to teach about justice "from the beginning" to her upbringing: My dad one time said to me that I've always been so preoccupied with fairness. . . My parents are pretty good liberals and -- it's interesting. . . It's not just my upbringing. Cause my siblings aren't nearly as concerned with the ways of the world as I am. . . I think that I had a critical education. For some reason it felt good -I was thinking about this recently - about how it felt good when you first have a teacher who tried to encourage you to get mad at the world, or to look at things really critically.. .. like that was like the first time I got really excited about learning. . . .When you're an 18 year old woman and someone says, "Yes, you've been oppressed," and you know, even though you're upper middle class and white and privileged, you've had experiences that other women nave had. . . here's an explanation to why your brothers have a bigger bank account than you do . . . these forces in society created this. . . it validates your experience to join, to feel some sort of oppression with other people. . . . Patricia's theory was that her interest in justice developed from a personal "self-centered kind of altruism" that "spread beyond just being concerned with fairness and justice as it related to me and my personal issues" to a concern with the "worries of a 13 year old boy who's in my class. And so it's kind of like my own participation in creating more access to justice started very personal[ly] and then it kind of expands." Before they felt ready to tackle teaching about justice, other teachers required experience in teaching, time to acquire a sense of competence with the complexity of the subject matter of their courses, and time to establish their credibility as good teachers. Kate Harris now addresses "issues of justice" such as the U. S. government's removal of the Cherokee people from their land and the forced march along the Trail of Tears, through document-based lessons which require students to interpret primary sources and take a position on an issue. She claimed she did not do this in her first year when "we did a lot more of just kind of knowledge things . . .we didn't know what we were doing." In describing the evolution in his teaching that accompanied his transfer to the high school with the highest enrollment of African-American students ;n the city, Greg Bond raised the issue of his own comfort level: No, I have not always done it. .. That didn't happen at the middle school where I worked. Because I never felt comfortable in that basically white middle class community in terms of dealing with that as an issue.. . It just so happens I was a 7 6 good teacher and most of the kids liked me - to the chagrin, I think, of their parents. Becau.3e their kids had never had a Black teacher, I mean a really Black teacher with an Afro. . . Even after being there 11 years, in terms of sort of overtly teaching justice there, I wasn't comfortable with that. .. To teach about justice explicitly, I had to find my comfort zone first... It was a gradual change . . . How Would You Define Justice to A Student in One of Your Classes? Teachers amended and extended their responses to the direct question about their definition of justice in two ways: 1) with specific descriptions of "teaching justice" in their courses and 2) in volunteered stories about the emergence of a justice issue as a dilemma either in their relationships with students (or staff), or in carrying out the instructional part of teaching (not in selecting curriculum or choice of activities for students to engage in). Although my intention was to focus on the overt curriculum, my study confirmed Bricker's (1989) findings that justice consistently is taught as part of the "hidden curriculum"; the teachers I interviewed raised the issue themselves, telling me that they could not avoid "teaching justice" indirectly though they could choose not to teach "about justice." Here is a sampling of their comments: I think that everything that I teach in some way is about farness, and I'm not sure that justice' and 'fair' are the same thing, but I see them as very inter-related... I'm not sure that I ever specifically explicitly said, "This is about i.istice." (Patricia Dean, middle school) In my African and African-American History class, the topic is always justice because we are always looking at how people have been treated differently based on race, color, class, social domination.... (Greg Bond, high school) My gut feeling is that teachers deal with justice every day. . . .a lot of it is modeling -- how you treat the kids. .. . (Carrie Royce, high school) If you say teaching about justice as a topie, it's different than teaching justice. . . One level is teaching justice. and I would say I do that. . . I think it is critical for students to learn some aspects of justice when they are in a class, in terms of not having favorites.. .. So in teaching consistently, I monitor - or at least I try to monitor - how I do things, to determine if it is just. One... has to do that. . . . (Mona Dietz, high school) Teachers' Illustrative examples echoed Kevin Ryan's (197?) conclusion that moral education "comes with the territory" of classroom teaching. Ryan and Bricker were concerned that moral education too often occurred implicitly. This may be the case, but the social studies teachers I interviewed were often painfully cognizant that they "taught justice" through their implementation of school and personal policies regarding classroom management procedures, their responses to tardiness, absence, late work, students' stories of personal hardship, and their grading practices. Their narratives suggest that some occupations may either attract or encourage individuals whose conception of morality fuses an ethic of care with a concern about justice. Debra Shogan (1992) describes such a 8 7 moral orientation in her work, in response to what she believes to be insufficiencies in the theories of Kohlberg (1970, 1971, 1983), Gilligan (1977, 1982, 1987), and Noddings (1984). I will return to this issue later in the paper. Analysis and Discussion The jandsca=fiustict The landscape of justice is a difficult terrain, criss-crossed for centuries by philosophers, law makers and enforcers, and ordinary people. Not surprisingly, teachers' concepts of justice are crisscrossed by a rich network of interconnections; however, three definitions emerged as primary theme clusters, much as mountains dominate a landscape; jusfice as right and wrong justice as fairness (of treatment) justice as an ideal or standard. Although teachers' views were strongly shaped by the primacy of one of these ideas, they drew on the other two as the context of their discussions warranted. Furthermore, the ideas of justice as moral action and the relativity of justice emerged as secondary issues, much as streams run beneath a prairie. Teachers struggled with their belief that although members of a society must hold some common concept of justice, justice also was an individual construct that was different for "every one in this room." They felt that some part of the concept of justice ought to hold true across cultures and persons, but they also believed that students and adults hold idiosyncratic ideas about justice and that individuals experience justice differently depending upon their race, gender, and class. I will discuss this tension after presenting the primary and secondary theme clusters. luilialalightand_Wroz I will define justice for you, and that's right and wrong.. . . also, the cultural idea of right and wrong. Justice sitting here in Portland Oregon at this high school is gonna be different than justice in [another] high school across town. And it's gonna be different than justice in China. (Carrie Royce, H.S.) [In fact, I start my Criminal Law class off with that. I have them write down what they think [justice] is and we talk about it. But what I end up telling them is that it's each person's perception of what's right and wrong, what's just in every situation, the outcome of that situation or the actions involved in that. Every person has to put their own values on that, decide whether that was justice in the end. Was justice served? Were the actions just? . . . I can draw some issues where I would say [my students] probably would be in consensus that this is justice, this is not. But . . . if we probe long enough we will find areas where we disagree on what justice is, (Mitch Smith, H.S.) To me, what is just is what is right. . . . What is right is based on morality, what is right is based on law, what is right is bned on whatever the circumstances you're working in or living in. . . . In other words, I think there's a :ot of relativism out there. I don't think most people see justice as an absolute thing. . . . what is just in American society is not necessarily what's just in Chinese society. [To treat 9 8 someone justly] is culturally dependent, I think. . . .you could have ten people in here and everybody has a different view of what it is.. (Kate Harris, H.S.) &slice As Fairness (Qf Treatment) Being fair, [pause]. Treating everybody the same - or trying to treat everybody the same.. . Do I equate justice as being right or wrong? No, I would say I think justice is --how would I put it?-- trying to. .. achieve a sense of fairness. Equity. (Marc Jura, H.S.) I would say, urn, ...equal treatment... I want to say 'under the law' but I would broaden that, I think. Under. . . a code of ethics, you know, a code of morals. Because I think that so many laws don't deal with...day to day, ah, incidents, which kids have to make some determination about. .. . Is this person being treated fairly or not?. .. (Sandra Thomas, H. S.) I think I would have to use the word fairness more than anything else. Justice to me means, uh, not always an equitable outcome but certainly a fair outcome given the variables involved. . . equal in terms of opportunity, and . . . you know, a fair chance to gain the same level of material goods, or opportunities. . . . Even though you might not insist that the final outcome be equal, the means of getting to the final outcome would be equal at some point. (Walt Cochran, H. S.) You know, this might seem like I'm describing more do I teach "democracy" or the notion of do we live in one. But I think it has a real strong connection to justice. . . . I guess I would call it social justice. . . . Is there truly fairness in our society? . . . There's implied in democracy a certain degree of equality and practiced equality by the government. . .. (Matt Lyons, H. S.) I think justice. . .means . . . fair sharing...fair and reasonable sharing of the earth's resources... and fair treatment in terms of law, in terms of political treatment. How is [justice] different than fair? . . . I guess part of me says there's a distinction between the terms, but I can't lay my finger for the moment on how I would distinguish among them. (Jon Estes, H. S.) lusilmAs.Aaldral.s2r3sandard I'll tell you what pops into my mind is Plato's ideal moral law. That is one of the conversations, of course, that he opens up, talldng about the philosopher king in Plato's REPUBLIC. He talks about justice and the ideal moral law and all of that. . . . So, that's like an ideal. So justice is, like, a concept? . . . Probably for every person on this planet, there's an individual interpretation of what this is, I would suspect. .. . I get stuck with the ideal, where there's no answer. Or.. . I can be very pragmatic. . . . Justice is when you break the law, you get in trouble, and there are consequences to your behavior. And that's just the way it is, based on the laws and mores of the culture. (Stan Gray, H. S.) Justice is what a society determines, generally through law, and sometimes through tradition. What is fair, moral, has integrity [pause] . . . . I mean, there are some common understandings of justice, but there are also individually some internal beliefs on justice. We either --I don't know, you either are a just person or you're not. . . . I think there's a very limited scope for what collectively we can agree "this is justice." [This includes] things that are generally supportable by law, or possibly by tradition, and that exhibit fairness and integrity. . . . Beyond that, I think it's very individual. (Mona Dietz, H. S.) 1 0 9 That's a really tough question!... The treatment of all Americans -- that's the context we're talking about -- the treatment of all Americans. . . in a moral, just, equitable way... on the part of individuals... bureaucracies... institutions... That's what I would say justice is. . . I :hink justice is different for different people. . . . I know that what's .. . just treatment for women in this country is different from just treatment for men. I mean, men would see that differently than women would! . . . That's what I think we've learned in this country, based on how we see people being treated. My definition is an esoteric philosophical definition. It is the definition that I wish we operated by. But that's not the reality of what justice is. (Greg Bond, H. S.) Second= Theme Clustera justice As Moral Action, Five teachers (three male, two female) emphasized the connection between moral actio:i and justice, but their characterization of this action differed. Jon Estes (a former union organizer) corrected the language in my questions, insisting that he was "teaching & justice" not "about" justice. He and Sandra Thomas (who had worked for 12 years as a community organizer) stressed their desire to motivate s.udents to work for social change as a means of achieving a more just world. Another teacher focused on his desire that students learn to make informed judgments on policy issues of particular import to a democracy (echoing others' stress on the importance of teaching students to be critical thinkers, but in the context of citizen action). Among these four was the only teacher in the sample with a graduate degree in anthropology; when asked how he would define justice for his students, he did not mention the terms right and wrong. equal treatment or fairness used by the other teachers: My first sense is, I would like to be able to tell them a story, but one doesn't pop into my mind at the moment . . . The first thing I think about is, it's a kind of dance, or a balance game. . . with the tension between. . . how much of it is the choreography that's been taught to you by someone else [and] how much of it is your own individual interpretation? . . . A just action I think a lot of it happens in really mundane things. I think it happens in, um, how much tolerance there is for a variety of experiences and points of view, and how much comfort there is with tolerating different behaviors [and] the expression of different points of view. After le Aing the transcript of her interview, Patricia Dean sent me a letter of clarification. In the interview, she said: I would say that it has to do with appropriate consequences for actions, and access to resources. . . . like justice has to do with more than just saying everybody gets treated fairly. I think it has to do with there are -- that consequences are appropriate for the situation and that access to resources are appropriate to the situation. Because I don't think it's equal. It's not to do with equality for me. In the letter, she amended her definition as follows, including a diagram: The idea of-justice in the classroom has been floating around in my brain since we spoke at the beginning of June. What seems to be at the core of the issue for me in relation to teaching is the idea that we need to help kids to understand that in 11 10 uur society we have an ideal or value about fairness or justice that is abstract and unobtainable, yet needs to be fought for and worked toward. There is a complicated conflict of interest in a certain way between the idea of "justice for all" as articulated by the framers of our Constitution and the need for those framers' equivalents today, our leaders, to keep spreading that ;dea while holding on to their own access to power or privilege. There is a reoccurring image in my head which better explains this idea. Visualize justice in the United States as a "V" constructed from two rays. When we began as a society, "justice" was extended to a very few people who were part of the society; those filled that very small space where the "V" begins. As we have grown, the inverted "V" incorporates more and more individuals getting larger and larger, yet always excluding somebody. Figure 1. Patricia Dean's Diagram of Justice liumiseLRaiziyiLyjaiguhras:.Sailopt s pf Justice Teachers questioned the idea of a shared notion of justice, within a society and across nations, although they acknowledged there might be some shared understandings about justice that permitted us to talk with each other and feel we were discussing the same thing. They stressed either their awareness of the idiosyncratic nature of each individual's definition of justice or their knowledge that the expression of justice differed according to a culture's values and norms, although some teachers mentioned both. Differencg based on Personal_Interpretation .Stan Gray's contention that "every person in [my] classroom has a different idea of justice. ..an individual personal interpretation" of the "pragmatic part of our justice system" typifies the comments of those who seemed to believe that justice was a '31 flavors' problem. Reasons for holding this view centered on teachers' belief that there was no social agreement about how to implement the national values enshrined in documents such as the Constitution and Declaration of Independence, especially those portions exhorting equal treatment tor all. In effect, teachers were extending the analysis of Bellah et al. (1985) that the social fabric of our communities is unraveling: 11 I may view you as a just person or not view you as a just person, but what determines that is my view of justice. The same thing would be true of you . . I think there's a very limited scope for what collectively we can agree, this is justice. Beyond that I think it's very individual. (Mona Dietz) If we're looking at a group that has had no freedom - slaves, Afiican-Americans before the Civil War, or a group of people that did not have the right to vote in this country, then I would say that . . . my students' perspective is that's unjust. . . . but certainly there are some individuals that at least at that point in time (and probably still some that air alive and well today) that would say that was not unjust . . . I can draw some issues where I would say [my students] would probably be in consensus that this is justice, this is not. But if we probe long enough, we will find areas where we disagree on what justice is. (Mitch Smith) Kate Harris argued that "there's a lot of relativism out there. I don't think most people see justice as an absolute thing. . . it depends on the circumstance.. ." . . . you could sit down and I don't think you could find anybody in this society that would necessarily always agree with your view of justice. In other words, you could have ten people in here and everybody has a different view of what it is. But do they have a kind of a core of what the idea of justice means? Yeah. I'm not helping you, am I? Greg Bond introduced an analysis of justice conceptions rooted in differences in experience among individuals of different f_lass, race, or gender: I think justice is different for different people. . . I mean people as either class or gender or race. OK? And what each thinks is different. It's hard for me to articulate that by example for each one of those. But I know that what's just or just treatment for women in this country is different from just treatment fo:. men. I mean, men would see that differently than women would. . . Even though they're different situations and the cirrumstances are different, you could say that William Kennedy Smith got his justice because African-Americans would perceive that he's white and a person of [high social] class and he got off. And people look at Mike Tyson, and he didn't get justice, primarily because of his color and his inability to ...defend himself. . . A woman would look at William Kennedy Smith and Mike Tyson, and they may say, "Mike Tyson got justice; William Kennedy Smith didn't . . . .Now you talk to [African-American] women and that's where the schism comes, because. . . they would say, "He deserves to go to jail; Mike Tyson got justice." Then you talk to African-American men and there's a definite difference. ( I'm generalizing, of course.) That's what I meant by justice is different for different people. And it's based on our experience. Difference Based on Cultural Values I am coming to believe that social studies teachers may represent a special case of adults because their knowledge of other societies is broader than most other occupational groups require. Three women (Royce, Henly, and Harris) drew on their knowledge of China to maintain that although the idea of justice might be common in all societies, enacting that concept would vary widely. Ms. Royce was the first to raise this issue. .13 12 She started by saying that "achieving justice in America would be totally different than achieving justice in China," based on her experiences living there, and her knowledge of Chinese parables. Carrie Royce thought she might prefer the Chinese conception of justice in the case of car accidents, but not in relation to other issues of harm. Here is the story she told: There's a traditional Chinese tale, and it's about Judge Li Yo. He is asked to rule in favor of one wife over another wife. Both wives have children and have reasons to have the man support her. And the judge choose the first wife over the second wife, because the first wife had the recognized value. Even though, as the story unfolds, the second wife really was the "nicer" person, the "better" person, more giving and understanding, less manipulative, etc. And so, she dies in the end. Now I think the judge rules for justice, according to continuing the social agreements in Chinese culture. But my response is, I feel really badly about the right person, the good person, dying. And indeed, the Chinese also do. I pressed Carrie, saying I heard something "I think is part of the Western concept: the judge in this tale is attempting to balance something. . . that otherwise would not be there." She replied, "The balance is that the wife who is recognized survives. . . The judge is kind of in the same situation as Solomon." Ms. Royce also noted that her students often tell her that "there is no truth in the legal system we have." She was quoting from a student's reaction to a scene in Zora Neale Hurston's novel, Their Eyes Were Watching God, where "Jamie is on trial for killing Tea Cake." The girl was putting herself in that situation. I asked her what she meant and she said that if you're figuring out what is fair on a majority vote [our jury system], it might not be really fair. And I had no answer for that. I said, "Well, it's a question you'll probably ask yourself a lot . I'd rather trust a majority vote than one person." . . . and I shared what I know about the Chinese judicial system, which is much different. And students weren't so sure they agreed with the Chinese definition of justice.. .. Up until 1985-86, there was no such thing as suing for personal injury in the Chinese legal system. The person who hurt you [e.g., in a car accident] was financially bound to care for you until you could go back to work. Say they ran over your bicycle. To decide who is at fault --if that's what you mean by justice-- it's a committee. There's the person from your neighborhood, a person from the other person's neighborhood, the judge, and the two lawyers [who] present cases, present the facts. And in the traditional system, the judge could beat everyone to make sure everyone was telling the truth. If your story stayed the same, then he might [decide in your favor]. I use that example. Kate Harris' story focused on the American reaction to the events in Tienanmin Square: We looked at that and said, "This is unjust. Why is this happening? Why are they sending in the tanks?" Because people didn't deserve it. My husband was in Beijing not too long after that on business, and we have a good friend who lives there and he had dinner with her. Her comment was, "This has nothing to do with right or wrong or just; this has to do with 'these folks don't understand that they're I 4 13 getting in the way of our economic progress.' These people are getting in our way. It is absolutely ridiculous for them to be out there protesting and wanting democracy when all we're really concerned about is having a better lifestyle." . . . My view of justice is, this was a terrible thing that happened. Her view --and shes a college educated woman-- is 'these guys got what they deserved.' . . . Kate continued: Here's this woman who's lived in the United States and loves the United States and certainly has an understanding of values that the people would have in this country, being just totally disgusted with these protesters -- and I think she represented a lot of Chinese people --not everybody-- but she really felt the most important thing for China was to move forward economically. . .. You could have intellectual conversation. She could understand why we felt it was unjust what happened, but she didn't agree with it. [pause] So, at the core of treating people justly... I think that's where it becomes real culturally relevant - not relevant, but it's culturally dependent, I think. This anthropological view forms the basis of an essay by Nader and Sursock (1986), who nevertheless note that "varied notions of justice" are not "limitless": The same categories are noted so regularly from culture to culture that the concept of just behavior seems to revolve everywhere around the choices that so many authors in this volume have isolated: harmony, need, equality, and equity. As revealed in writings about revolutions, however, when translated into ideology,, such gentle terms may often result in grotesque behaviors involving violence, albeit justified by ideas of fairness, equality, and the like; limited concepts of justice may lead to limitless cOnsequences (p. 228). I was surprised and disturbed that teachers were reluctant to judge some conceptions of justice as flawed or inconsonant with their values. In Actual Minds, Possible Worlds, Bruner (1986) argues that although "meaning...is an enterprise that reflects human intentionality and cannot be judged for its rightness independently of it.., [iit is not a relativistic picnic" (158-159). I would hope that social studies teachers would assist students in exploring the consequences of different conceptions of justice, so that these adolescents develop a sense that. they are informed and competent to make judgments about matters of justice. (Teachers may do this when faced with specific classroom events;but this is not what they reported in interviews). Teachers whose concept of justice included moral action (e.g., Jon Estes and Susan Thomas) were willing to push their students to develop a sense of social action. Those who believed (as Stan Gray told me) that "justice isn't what you do, it's a way of being" were reluctant to suggest that some ideas about justice were more valid than others. Teachers (see quotes from Gray and Dietz, above) who defined justice as part of a person's character were expressing the Aristotelian position, eloquently explored by MacIntyre (1984), that justice is connected to a morality of laws. The Greek position, however, included the importance of working towards founding a community to achieve "a common project," 14 defined as a shared good recognized by all (see p. 151). Although teachers recognized the unraveling of a shared sense of community, they did not see it as their role to help students actively construct a shared sense of justice. In contrast, Patricia Dean, Susan Thomas, and Jon Estes saw "teaching for justice" (in Estes' words) as a central part of their work as social studies teachers. Male and Female Teachers See Empathy as Central to Justice Students want teachers to be fair. Constructing a trusting relationship with students and building a sense of community are essential aspects of teaching. Male and female teachers talked about dilemmas they faced in trying simultaneously to be fair to a particular student and the whole class as a justice issue. They experienced conflict because they felt an obligation tc treat all students equally (i.e., not play favorites) and also to respond to special circumstances of individual need. But they also recognized that evaluation of a relationship (whether between individual or nations) as just or unjust depended on the circumstances of the relationship. This section explores the way teachers represented these issues in their discussion of justice. Greg Bond was especially concerned about how the presence or absence of a relationship between individuals influenced his sense of justice. His language mirrors the orientation of care that Gilligan (1977, 1982 ) describes as more often creating ethical dilemmas for females: A class I had [on moral education] has really caused me to think about the individual morality that we have with one another in relationships. And I think that that's the justice. It is an individual sense of right and wrong, based on how you relate or who you're relating to... and what is the context of that relationship. Context meaning time, place, circumstance, ...who the relationship is with. Is it with an intimate person, like your wife? Is it with a child, where there's some deference to respect and authority and... parenting and all of that? Is it with a student? Matt Lyons wanted his students to develop empathy for officials charged with delivering justice as part of their job. Although he recognized the salience of context, he foctad more on the way individuals decide whether an outcome is "fair" to them personally: Justice, that's-- these people [government officials] are trying to do the best job they can in those situations under those circumstances. . . . the definition of justice to me is just each person's mind as to 'Was this action, was this decision, was this law just to me? Was it fair from my opinion, my experience?' Other teachers also articulated a blend of the justice orientation with the care orientation, leading me to wonder whether something about the nature of teaching as an occupation supports a view of justice as a continuum sometimes requiring principled response (from duty or obligation) and sometimes requiring more sensitivity to context. 16 15 This view is proposed by Debra Shogan (1992) in her critique of the work of those who view justice as distinct from care. Shogan argues that different kinds of moral situations call forth different types of moral resk mse. In one situation, "the welfare of others is at stake as a result of some predicament or circumstance which does not require a process of adjudication." In such situations, "caring persons" have a "benevolent desire" to enhance others' welfare. In the "other type of moral situation," where "there is a conflict between sentient beings or between sentient beings and a standard," a moral response requires resolution through adjudication "so that those in conflict are treated fairly" (p. 17). Shogan takes issue with Noddings' (1984) definition of a caring person because she believes that a caring person is motivated both "by welfare and fair treatment of those in a moral situation" as the situation requires (p. 18). She notes that some situations require impartiality and some require using knowledge pertinent to the relationship of individuals and the situation, agreeing with Iris Murdoch that "impartiality does not demand indifference" although it does require "detachment" (Shogan, 1992, p. 22). Sometimes adjudication is the appropriate way to settle the conflict; sometimes the welfare of one of the parties requires a particular response. Which response is more appropriately just often depends on whether friends or strangers are involved. Shogan also cautions that: Recognizing that situations differ according to certain important features is not to claim further that moral situations can be interpreted any way one wishes. On the contrary, features of moral situations are conceptually connected to what makes either a benevolent or a just desire appropriate as a motivation for a particular situation...caring people have certain character traits. This is an important point because consistency is often thought to be characteristic of principles which are universal and not of desires which are often portrayed as fleeting and not dependable. (24-'h5) Shogan's conception of a moral response as requiring a fusion of justice and care is visible in the conflicts that teachers described in their relations with students. For example, Marc Jura described as a justice dilemma his belief thlt he could not be fair to a specific student and the whole class of students when he had to decide whether to make allowances for a personal hardship when a student was unable to meet a deadline or in calculating a student's grade. Shogan notes that in some situations "the desire to do one's duty to be fair takes precedence over a benevolent desire to assist a particular individual" (p. 33). Her position differs from that of Kohlberg (1970, 1971) and Noddings (1984) beCause she views benevolence as part of justice. She differs from Gilligan (19F3) insofar as this folding of care into justice provides a different perspective on studies that 16 show females and males as both articulating positions of justice and care. Instead of seeing these as primarily gender-associated responses, Shogan views the difference as appropriately elicited by different kinds of situations. Teachers' conceptions of justice closely mirrored Shogan's notion that fairness and caring are part of justice. II dli I ' I I Male and female teachers connected fairness to an equally important sense of the need to be sensitive to an individual's specific situation. Stan Gray tried to find a NT, ay to define justice that would cover all cases. Stan felt that "either you are a just man or you aren't. . . It's not what you do; it's a way of being." In this he was echoing the Aristotelian position (see MacIntyre, 1984) that justice is quintessentially the proper enactment of one's social role based on culturally-ascribed relations to others. Gray believes that every student in his classes has a basic right to express his or her own opinion and to "be themselves." He described himself as "fair" because 1) he treated all of his students the same whether they were passing or failing, and 2) accepted all of their comments as equally worthy. Laura Henly, who team teaches "integrated" high school language arts and social studies classes, initially quoted Thurgood Marshall on "equal teatment" as her definition of justice. Later in the interview she amended her definition to voice her concern that universal standards somehow needed to account for the impact on sr.,cific persons: I guess there's some sort of an abstract justice, like kind of a standard, uh. . . something that is in, like. . . the guarantees of the Constitution, the Declaration of Independence, which are sort of... abstract. .. . as that justice that is, you know, provided in the Constitution is actually applied to, or played out, or experienced by the individual... I don't know if it would be... sort of... the basic right of the individual? . . . Basic rights. Human dignity. I don't know.., but as it's applied . . . to every single person... Every teacher I interviewed acknowledged that for justice to be implemented in any culture, it would be necessary to take into account the special circumstances of the relationship between the parties. Furthermore, both male and female teachers specifically referred to principles of justice as the salient touchstone within the concept for them. Their sense that justice included the principle of "equal treatment" created conflicts for them when they tried to be "fair" in implementing their own policies about absence, completion of missed work, and grading. The conflict arose because they wanted to take a student's special personal circumstances into account and simultaneously also be fair to the rest of the class. Teachers' concepts of justice thus support Gilligan's (1982; 1985) position that adults articulate both a morality of justice and a morality of care (see also Lyons, 1987). Teachers' concepts challenged Gilligan's finding that males most often use the language of justice as a principle while females most often use the language of care or 18 17 responsiveness to individuals. Teachers stated specifically that the situation determined whether they drew more on the "principle" or more on the "responsiveness" part of their idea of what justice required, but that both of these ideas were primary to their concept. Lyons (1987) notes a "third pattern...an equal use of justice and care considerations" but this has not received much attention from researchers. It seems teachers construe justice differently dependi4 on whether the issue concerns what is just for society in general (the public domain) or what is just for the individual (the private domain), as the quotations below illustrate. Carrie Royce used "justice language" in discussing her idea of a just relationship between nations: Well, for me, relationships have obligations and responsibilities. And so, uh, justice would be trying to balance. . . the relationships and the obligations that you have in that relationship, and so THEN...it sounds kind of ...what is it? patronizing? -- but you know there would be certain obligations that the U. S. might have to a protectorate. I commented that "there might be legal obligations that both parties had agreed to" and Carrie replied: You know the issue right now with Viet Nam? The Vietnamese see that we have an obligation that we're not fulfilling, and their definition and our definition are different. They have an obligation to make restitution for people who are missing, [about] whom they say, "There's no way that we would feed a foreigner. . . Why would you think I would hide a foreigner and then feed him when my own family is starving?". . . There's the agreement that there's the obligation, but it's like the obligation is not the same. There's no way [that the U.S. citizen's sense of] the responsibility would be met. Laura Henley teaches a class on the literature of colonialism that includes social science perspectives (e.g., Memmi, 197X) and novels by Indian and African writers. Readings explore the differential impact of colonial societies on men and women of different classes. Henly spoke of her sense that there was a kind of justice specific to international affairs. She said: I think that in the real world, because of the difference of power. . . a country that is a third world power and a country that's a first world power. . . Is it just , for instance, to expect a third world country to turn down storage of toxic wastes if it means feeding your people? Is it just, you know, for a country like Germany or the United States to even ask? Is it just, in this country for us... to encourage or to ask Native Americans. . . when almost all the applicants for nuclear waste storage are from Native Americans? It seems to be there's a basic injustice there, and it's 19 18 an injustice of rank or, you know, position, in terms of power and wealth and so forth. I pressed Laura for clarification: "Is there a difference between that and - I don't know - is there a justice that would hold between individuals? Like in husband/wife relationships, or between parent and child?" She replied: Probably, if it's in terms of a power difference. Either because of economic power or physical power. And it may be the distinction between, like.., public justice... the abstract declarations of human rights and so forth. And this may just be another aspect of that. I'm not sure that they're different, no. I don't know whether they're different. I'd have to think about that. Greg Bond struggled to explain his sense that there was some "sort of moral universality stuff," some "sense of moral right and wrong that goes across race [and] gender." He strongly asserted that even in cultures that practiced infanticide, there was a sense "that taking a life is not right." Bond questioned the idea of a moral universality because he did not see it at work "at the nation state level," saying, "perhaps the Jehovah's Witnesses have it right: Maybe men really can't rule themselves." The behavior of nations had convinced him that morality meant: something greater than a human sense of right and wrong. . . because of how we're organized. . . . In order to have justice, you have to have some sense of right and wrong and I see that that's arbitrary. Based on somebody's national interest. . . that same type of morality was used to drop the bomb on Hiroshima and Nagasaki. To save our boys. Greg said firmly, "the treatment of all Americans in a moral fpause]...just, equitable way...on the part of individuals, bureaucracies, institutions. That's what I would say justice is." He recognized that this definition was "an ideal. . . I don't believe we can get to that level of justice - and we call ourselves a civilized country!" Later in the interview, Greg acknowledged that figuring out the right or just way to treat students who did not turn in work might require opposing responses from him as a teacher: One student may say, "I didn't turn in my research paper because I had too much to do and I waited till the last minute." And I'd give that student an "F" or an "Incomplete." And another student may come to me and say, "I don't know why I didn't do my paper." And I may say, "I'll give you another day to do it." And the justice may simply mean that I understand one student more than the other. And that's not fair. I mean, they're not equal situations. . . It's based on the relationship that I have. Not the quality of the relationship. . . . Could be bad. I mean, I've done the same thing for kids that I just really don't like. Somewhere in my being. . .my intuition . . . says, "Ehh, for some reason, this kid deserves another shot." I don't know why I do that. . . Yes, I suppose there's that form of justice too. Matt Lyons defined justice as "treating people fairly," and said, "There are certain kinds of, I guess, univerial principles that tell us if there is truly justice in a country." In 20 19 his interview he defined those "universalities" as based on "a cultural standard . .. that there is probably some universal kind of principles that would determine if there was a just relationship or not." On the copy of the transcript mailed back to me, he circled the word 'universal' and drew a line linking it to this written comment: "The universalities I'm thinking of are equality, respect, honesty, liberty, fairness." Elsewhere in the interview he said it was "kind of hard for me to say [what a just relationship between a parent and a child]" would be like, but he thought "it would mean there's respect, that there's care, that there's time spent with that person. If you want to title all that under the umbrella term. . . of a just relationship, then, 0. K." I probed his response: "Does that make sense? Would you do that?" He replied: Yeah. I think the concept of justice, it's so broad that we can look at a social level, we can look at it on a, like I said, on a school level, community level, one- on-one level. I mean the notion of justice probably, at least in [my] government class, doesn't reach down that far. I mean, I don't think I've ever really thought about it much in terms of justice being that broad [ but] I would agree. . . that it does. . . I don't think a curriculum in any of the disciplines does that, I don't believe. I mean you could probably ask, what about the relationship between teacher and student, too, and I would think that it would relate to that as well. Teachers' responses to my questions about whether there were different kinds of justice lead me to wonder whether Gilligan and her associates do not hear much talk about public justice (which, as citizens, most individuals wish to be guided by a set cf principles or rules including legal procedural safeguards for "human rights") because their interviews ask respondents to discuss a moral dilemma they have personally faceri, and therefore elicit responses about private relationships. In their book on Everyday Justice, Hamilton and Sanders (1992) compare "responsibility and the individual in Japan and the United States." Arguing for an historical perspective on justice as sociologically tied to the size of a community and the strength of "solidary" relationships (153-156), they build a carefully documented case that societies have different norms for justice among those who know, and care for and about, each other and justice among strangers. They situate justice within the context of "calling a person to account" involving "conceptions of the responsible actor" (p. 185 ), language used by none of the teachers I interviewed. However, several teachers (especially Laura Henly and Carrie Royce) specifically noted the importance of legal standards of justice in promoting social stability, a point Hamilton and Sanders stress in their discussion of American and Japanese conceptions of justice. 20 Summary and Conclusion This paper shows that social studies teachers believe they address issues of justice in two primary ways: through choice of topics and materials actually used in class and in their relationships with students. While two thirds of those interviewed claimed to teach about justice directly and intentionally, one third felt they taught about justice indirectly. All teachers felt "teaching justice" was important to do and were able to cite specific topics and materials in use in their curricula (Makler, in preparation). Teachers who claimed to "always have taught about justice," even in their first year of teaching, attributed their strong interest in justice to a combination of personal values, family background and life experience; among this group were a former labor union organizer and a former community organizer. Other teachers who described themselves as deeply committed to exploring justice issues said they gradually incorporated justice issues because they first needed to find "their comfort zone" within the school community, and/or acquire sufficient knowledge in several areas of the secondary curriculum, and gain experience in teaching. In responding to interview questions, teachers exhibited complex and complicated notions about justice. Although every teacher was uncertain about their knowledge of theories of justice, all had developed complex theoretical rationales to support their concepts of justice. Three definitions of justice emerged as primary theme clusters - justice as right and wrong, justice as fairness, and justice as an ideal or standard. Although individuals tended to focus on ideas related to one theme cluster, all teachers drew on ideas related to all three theme clusters as the context of their discussions warranted. Thus, as Mona Dietz (Makler, in preparation) noted, she might focus discussion of justice in her government class on law and issues of right and wrong, but would address justice in her psychology class by looking at how communities treat the homeless or mentally ill. Two secondary themes emerged as interconnected to the three primary theme clustets: the idea of justice as requiring moral action and a belief in the relativity of justiCe. Teachers' "personal practical knowledge" (Connelly & Clandinin, 1985) of the idiosyncratic nature of ideas about justice among students and Americans in general combined with their academic knowledge that concepts of justice differed across cultures. Indivi&ais struggled to rationalize their belief that some aspects of the concept of justice were universals with their knowledge that individuals experience justice differently depending upon their race, gender and class. While Gilligan (1982) and others (Lyons, 1987; Ward, 1989) have found that females tend to favor the language of care and males the language of fairness when discussing their concepts of justice, a strong gender- 22 21 associated difference in language did not emerge in these interviews. Male and female teachers used the language of justice and the language of care to describe their concepts of justice, depending upon the context and situation they were describing. The consistency of language and example across interviews with male and female teachers raises the possibility that social studies teachers may represent a special occupational group. Teachers are socialized to be responsive to students as individuals while they also must be cognizant of the needs of the class as a group in their teacher education programs and as part of their on-the-job training. Social studies teachers' knowledge about other vultures and governments, and about individual and cultural differences, differs from the norm among even educated adults because the secondary curriculum requires this. An individual social studies teacher may well teach five different academic disciplines within a two year period (e.g., U. S. history, global studies, economics, government and psychology). Thus, social studies teachers as a group may be more sensitive to the relativity of notions of justice across history and within contemporary society than other occupational groups; it also is possible that the diversity required of an accomplished social studies educator may attract adults already disposed to recognize this relativity. Finally, although none of the teachers interviewed claimed academic expertise about matters of justice, the conceptions of justice they ardculated paralleled the range of philosophical debate on important issues and themes within the concept of justice (see Barry, 1989; Shklar, 1990). However, teachers in this group described a concept of justice closest to Debra Shogan's (1992) position that fairness and caring are both essential aspects of the concept of justice. Teachers seem to believe that justice in the public domain should be construed differently from justice in the private domain of personal interactions; this belief mirrors sociological theory that societies and individuals have different norms for relations among strangers and friends. Clearly, this is an area worthy of further investigation. 23 References Barry, B. (1989). Theories of justice: A treatise on social justice, Vol. I . Berkeley: University of California Press. Bellah, R. et al. (1985) Habits of the heart: Individualism and commitment in American life. Berkeley: University of California Press. Bricker, D. (1989). Classroom life as civic education: Individual achievement and student cooperation in schools. New York: Teachers College Press. Bruner, J. (1986). Actual minds, possible worlds. Cambridge: Harvard University Press. Carter, K. (1993). The place of story in the study of teaching and teacher education. Educational Researcher,, 22 (1) 5-12. Connelly, F.M. & Clandinin, D.J. (1985). Personal practical knowledge and the modes of knowing: Relevance for teaching and learning. In E.Eisner (Ed.) Learning and teaching: The ways of knowing. 84th Yearbook, Part 2.,Nationa1 Society for the Study of Education. Chicago: University of Chicago Press. Dexter, L. (1970). Elite and specialized interviewing. Evantston: Northwestern University Press. Gilligan, C. (1977). In a different voice: Women's conceptions of self and morality. Harvard Educational Review 47 481-517. (1982). In a different voice: Psychological theory and women' s development. Cambridge: Harvard University Press. (1987). Moral orientation and moral development. In Kittay & Meyers (Eds.), Women and Moral Theory. pp. 19-33. Totowa: NJ: Rowman and Littlefield. Glaser, B. & Strauss, A. (1976). The discovery of grounded theory: Strategies for qualitative research. New York: A ldine Publishing Co. Hamilton, V.L. & Sanders, J. (1992) ...'veryday justice: Responsibility and the Individual in Japan and the United States. New Haven: Yale University Press. Kohlberg, L. (1970). Education for justice: A modern statement of the Platonic view. In Sizer & Sizer (Ecis.) Moral Education: Five Lectures . pp. 57-83. Cambridge: Harvard University Press. (1971). From is to ought. In T. Mischel (Ed.) C ognitive development and epistemokgy. pp. 151-235. New York: Academic Press. (1980). High school democracy and educating for a just society. In R. Mosher (B.) Moral education: A first generation of research and development. New York: Prager. (1985). The just community approach to moral education in theory and practice. In M. Berkowitz & F. Oser (Eds.) Moral education: Theory and application. Hillsdale, NJ:Lawrence Erlbaum. Lyons, N. (1983). Two perspectives: On self, relationship and morality. Harvard Educational Review 53 (2). (1987). Ways of knowing, learning and making moral choices. Journal of Moral Education 16 (3) 226-239. Maclntyre. A. (1984). After virtue: A study in moral theory. 2nd ed. Notre Dame: University of Notre Dame Press. Memmi, Albert. (197?) Colonizer and colonized. Nader, L. & Sursock, A. (191'6). Anthropology and justice. In R. Cohen (Ed.) Justice: Views from the social sciences. Critical Issues in Social Justice Series. pp. 205-234. New York: Plenum Press. Noddings, N. (1984). Caring: A feminine approach to ethics and moral education. Berkeley: University of California Press. Rawls. J. (1971). A theory of justice. Cambridge: Harvard University Press. Ryan, K. (1983). It comes with the tenitory. In H. Girouy& D. Purpel (Eds.) The hidden curriculum and moral education: Deception or Discovery. Berkeley: McCutchan Publishing Co. 24 I. Seidman, I. (1991). Interviewing as qualitative research: A guide for researchers in education and the social sciences. New York: Teachers College Press. Shklar, J. (1990). The faces of injustice. New Haven: Yale University Press. Shogan, D. (1992). Care and moral motivation. Toronto: OISE Press. Shulman, L. (1987). Knowledge and teaching. Harvard Educational Review 56 (1) 1-22. Spradley, J. (1979). The ethnographic interview. New York: Holt, Rinehart & Winston. Ward, J. (1989). Urban adolescents' conceptions of violence. In C. Gilligan, J. Ward & 3. Taylor (Eds.) Mapping the moral domain: A contribution of women' s thinking to psychological theory and education. Cambridge: Harvard University Press. 
work_sy53gkplijeadf7qtjq5zbqvya	----	PUBLIC HEALTH GENETICS and SOCIAL JUSTICE Peter Dabrock Public Health Genetics and Social Justice ! „Justice is the first virtue of social institutions.” (Rawls 1999) ! Public Health = integration of genetics into Public Health ! Public Health (Genetics) is performed by public or semi-public institutions ! Public Health (Genetics) has to cope with justice Introduction ––– The right and the good The right and the good The right and the good ––– CapabilitiesCapabilitiesCapabilities---approach approach approach ––– PHGPHGPHG---conflictconflictconflict Task of Social Justice ! Against the background of scarce resources, social justice = claim toward social institutions to find a balance between liberty and equality while considering procedural fairness and the inviolable human dignity of every human being. Introduction ––– TheTheThe right and right and right and thethethe good good good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHGPHGPHG---conflictconflictconflict Content 1. Introduction 2. The right and the good 3. The Capabilities-approach in PHG 4. A justice based rule for the conflict: ‘respect for autonomy’ versus ‘common welfare’ Introduction ––– TheTheThe right and right and right and thethethe good good good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHGPHGPHG---conflictconflictconflict Preconditions for PHG ! The social accountability for technologies and procedures depends on different conditions " HTA " Ethical Criteria IntroductionIntroductionIntroduction ––– The right and the good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHGPHGPHG---conflictconflictconflict The differentiation between the right and the good ! background: the modern society ! juridical and ethical norms = what people owe to each other as long as they want to live in peaceful coexistence ! ideas of goods = values and ends of individuals and societal groups IntroductionIntroductionIntroduction ––– The right and the good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHGPHGPHG---conflictconflictconflict Ethical rules derived from the distinction between ‚right‘ and ‚good‘ ! preference of the right over the good ! liberty is valid as long as it does not jeopardize the freedom of the other ! Obligations and prohibitions must be proven if they are not obviously prohibiting actions which endanger liberty ! the constraint of abuse is preferable to a general prohibition ! legitimacy of property ! recognition that the just conceptually and motivationally relies also on the good IntroductionIntroductionIntroduction ––– The right and the good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHGPHGPHG---conflictconflictconflict Application of the differentiation to PHG ! also less effectual means cannot be impeded unless they are proven gross negligence, unfair competition or equitable fraud ! publicly accounted and recommended means of gene medicine can justly be questioned in terms of their performability, social acceptance and ethically or legal equitableness (Paul 2004) ! publicly promoted health literacy dealing with genetic information is of high ethical importance IntroductionIntroductionIntroduction ––– The right and the good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHGPHGPHG---conflictconflictconflict The core criterion of social justice dealing with PHG ! In the framework of the constitutional state measures of PHG must restricted to the necessary and the just of health care ! the necessary should defined as a decent minimum (not a minimal minimum) ! Criteria that fail in applying social justice to PHG " utility " strict equality " equality of welfare " radical freedom IntroductionIntroductionIntroduction ––– TheTheThe right and right and right and thethethe good good good ––– Capabilities-approach ––– PHGPHGPHG---conflictconflictconflict The key criterion of social justice dealing with PHG ! equality of opportunity " social structural view " brute luck view " with taken-for-granted-assumption (images of man) ! fair equality of opportunity only if enabling to real freedom ! key criterion: enabling people to live an integral, self-responsible life in order to take part in social communication (related to age or physical condition; respective to the social framework) ! capabilites-approach (A. Sen; M. Nussbaum; H. Pauer-Studer) IntroductionIntroductionIntroduction ––– TheTheThe right and right and right and thethethe good good good ––– Capabilities-approach ––– PHGPHGPHG---conflictconflictconflict Supplementation by a network of just institutional elements Priority setting concerning concepts of disease 1. All three aspects 2. Two, one of them the objective 3. Only the objective aspect 4. Subjective and social aspect 5. Only the subjective or the social aspectobjective aspect subjective aspect social aspect DISEASEDISEASE objective aspect subjective aspect social aspect DISEASEDISEASE Formal subject-oriented criteria 1. sufferableness 2. urgency 3. influenceability 4. no closeness to consumption 5. effectiveness semantical transparency need procedural justice participation compensational justice justice of efforts efficiency and effectiveness inter- generational justice The key criterion of social justice dealing with PHG ! fair equality of opportunity = enabling to live a self- responsible life ! this implies " recognition " redistribution ! applying to PHG " recognition # vs. stigmatization and discrimination ! genetic knowledge is special but not exceptional " redistribution # not widening health disparities IntroductionIntroductionIntroduction ––– TheTheThe right and right and right and thethethe good good good ––– Capabilities-approach ––– PHGPHGPHG---conflictconflictconflict Social justice in the likely conflict ‚respect for autonomy‘ vs. ‚common welfare‘ ! backgrounds: vs. free-rider-mentality; limited resources ! preconditions: HTA; efficiency, effectiveness ! rule: strong moral obligation if " avoiding serious diseases " promoting the individual development " avoiding high costs " not expecting social stigmatization ! weaker obligation if the criteria become less ! limitation to the moral sphere ! legal sphere = abandon a non-directive counseling IntroductionIntroductionIntroduction ––– TheTheThe right and right and right and thethethe good good good ––– CapabilitiesCapabilitiesCapabilities---approachapproachapproach ––– PHG-conflict PUBLIC HEALTH GENETICS and SOCIAL JUSTICE Thank you for your attention! Peter Dabrock 
work_syzoacpv4vh2nfs4jzhwi52k2e	----	The New Educator, 5:293–310, 2009 Copyright © The City College of New York ISSN: 1549-9243 online Address correspondence to Elisabeth Johnson, CUNY College of Staten Island, 2800 Victory Boulevard, Department of Education, 3S-225, New York, NY 10314, USA. Email: elisabeth.johnson@gmail.com Readers are free to copy, display, and distribute this article, as long as the work is attributed to the author(s) and The New Educator journal. It is distributed for non- commercial purposes only, and no alteration or transformation is made in the work. More details of this Creative Commons license are available at http://creativecommons.org/licenses/by-nc-nd/3.0/. All other uses must be approved by the author(s) or The New Educator. The New Educator is published by the School of Education at The City College of New York. 293 “Would That Be Social Justice?” A Conceptual Constellation of Social Justice Curriculum in Action ELISABETH JOHNSON, RACHEL OPPENHEIM, and YOUNJUNG SUH CUNY, College of Staten Island, New York, USA For new educators, the obstacles of high-stakes testing, curricular mandates, and their own inexperience and self-doubt can render teaching for justice and equity overwhelming, seemingly impossible ideals. However, as students are increasingly tied to prescriptive curricula and academic performance standards, the goals of social justice and democracy are all the more necessary. Through interviews and observations with new educators, the authors argue that, despite diffi cult, often restrictive teaching environments, these educators are indeed engaged in teaching socially just curricula in a variety of innovative ways. Beginning teachers’ stories and their inspiring curricular enactments are at the heart of this article. Lucy, a fi rst-year teacher, had just fi nished describing a social studies curriculum that she created, a year-long unit of study in which social stratifi cation was a central theme and in which issues of power, media representation, and historical oppression were addressed in depth. She stopped suddenly, unsure of herself, and asked, “Would that be social justice?” Hers may seem like a peculiar response; after all, justice and social equity were focal topics in her curriculum. However, if we view Lucy as a novice teacher, 294 E. Johnson et al. hesitant about her place in a large, standards-driven public school system, doubtful of her own ability to reach all of her students and to impart to them both academic skills and strongly held convictions, her question is more understandable. In fact, insecurity about one’s own ability to teach for social justice would seem typical for a beginning teacher. For new educators, the obstacles of high-stakes testing, curricular mandates, and their own inexperience and self-doubt can render teaching for justice and equity overwhelming and seemingly impossible ideals. However, as the stranglehold of the No Child Left Behind Act intensifi es and teachers and students are increasingly tied to prescriptive curricula and academic performance standards, the goals of social justice and democracy have become all the more necessary. The objective of this article, therefore, is to demonstrate that it is both possible and essential for new educators to enact social justice curricula in their classrooms in a variety of ways. We present the vignettes of three beginning teachers enacting social justice curricula in their classrooms. These vignettes illustrate that the forms that these curricula take may look vastly different in different classrooms and are contingent upon a number of intersecting factors, including the teacher’s background, her students, and her prior conception of social justice. In presenting these vignettes, we hope to expand the defi nition of social justice and to argue that all of the disparate forms of social justice curricula that we observed were compelling and vital. We contend that a broad and contextually contingent defi nition of social justice curriculum is one that will best support and encourage burgeoning social justice educators. Our hope is that these three new educators’ stories and their ideas can serve as inspiration, motivating others to enact social justice curricula at a time when it is so crucial and yet too often absent from the American school day (Sleeter, 2005). The three authors of this article came together as part of a graduate level research seminar that was designed to investigate the social justice curricular enactments of beginning teachers. At the time we, the authors, were doctoral students. In addition, all of us are former classroom teachers who are committed to social justice as a vital but often overlooked component of today’s schools. Two of us are white North Americans and one is Korean. We recognize that, just as many factors affected our participating teachers’ pedagogy and practice, our own backgrounds, experiences, and prior conceptions strongly infl uence our research and our beliefs about social justice and classroom practice (Clandinin & Connelly, 2000). Indeed, our convictions and beliefs not only affect our research, but they are also the reason that we chose to engage in this research at all. Social Justice Curriculum 295 NEW TEACHERS TALKING AND TEACHING ABOUT SOCIAL JUSTICE In the tradition of narrative inquiry, as defi ned by Ershler (2001), this project initially determined to ask new educators who recently graduated from the same preservice elementary program to tell their stories of learning to enact and the practice of enacting social justice curriculum. We also asked each new teacher to develop and enact a social justice lesson which would display her knowledge of practice, in practice, for practice (Cochran-Smith & Lytle, 2001). Implicit in these components of our study is our commitment to exploring and reconsidering educational theory in motion. This is to say, we are interested in conducting research that asks new teachers to consider themselves as agents in their teaching and planning of social justice curriculum enactments – to step out of the moment, talk about it, record it, and talk about it again, as a means to re-center the new educator in the sphere of educational infl uence. Ershler (2001) explains that so often early career teachers, with little time to systematically refl ect on the details and important moments of teaching, end up locating themselves on the periphery of educational infl uence. But we believe that (1) abstract or “top down” theories of education take shape as they are considered and reconsidered in light of teachers’ “bottom-up” theories of practice (Williams, 1996) and (2) educators learn about teaching when they ask and observe how other educators enact curricula in their classrooms (Cochran-Smith & Lytle, 2001; McDonald, 1992). Teacher storytelling in research facilitates a teacher’s naming and refl ecting on experience—a process which “requires that they actively think about what they have done as they prepare to articulate it for others” (Ershler, 2001, p. 163). Moreover, the process has the potential to support “teachers’ sense of agency in their work” (p. 164). The work of documenting, compiling, and sharing social justice enactments with practitioners holds promise for qualitative researchers and educators interested in developing recursive partnerships, e.g., exploring social justice theory in practice and mapping social justice practice onto theory. OUR JOURNEY TO AND IN THREE TEACHERS’ CLASSROOMS The fi ndings that we present emerged out of a doctoral research seminar in which we, the three authors, participated as co-researchers. Using a multi-case study approach, members of this seminar applied qualitative research methods to examine the ways in which beginning teachers conceived of and enacted social justice curricula in their classrooms. We entered our study guided by the following three research questions: (1) What experiences inform beginning teachers’ conceptions and enactments of social justice curriculum? (2) What are beginning teachers’ conceptions of social justice curriculum? (3) How do beginning teachers incorporate social justice issues into their practice? Our hope was that by studying new 296 E. Johnson et al. educators’ enactments of social justice curricula we would begin to understand the factors that must be in place in order to encourage social justice commitments and curriculum enactments. Such an understanding might in turn inform teacher education and professional development programs with commitments to social justice schooling, allowing them to better meet the needs and concerns of beginning teachers. All participating teachers were graduates of the same preservice program and had completed an intense two-year set of courses with fi eldwork, assignments, and readings that included a strong emphasis on social justice themes. Throughout their program, students had explored issues of power, injustice, and educational equality, and had been asked to evaluate their own ingrained assumptions based on their raced, classed, gendered identities. In addition, all had completed at least one semester of student teaching in poor, underserved public schools in order to further their understanding of the inequities that exist both within and across different educational settings. Members of the doctoral seminar wondered what impact this preservice program had on teachers once they entered their classrooms and how that experience had informed their notions of social justice curricula. A letter was sent to recent graduates of the program, asking them to participate in this study. Twelve teachers responded and over the course of a semester, each doctoral student researcher was paired with a participating teacher. The teachers presented in this article were all teaching in public elementary schools in New York City. We, the doctoral student researchers, used a variety of ethnographic research methods in order to mine beginning teachers’ conceptions of social justice, explore how those conceptions were formed, and examine the ways that they manifested themselves in teachers’ pedagogy and their curriculum enactments. To begin, each researcher conducted an initial semi-structured interview with her teacher participant. The purpose of this fi rst interview was to investigate the teacher’s ideas of social justice, to probe the events and circumstances that led to those ideas, and to explore that teacher’s conception of what social justice looks like in action. Next, the beginning teacher was asked to invite the researcher to observe between one and three instances of social justice curriculum in her own classroom. The researcher observed these lessons and conducted informal interviews both before and after each observation in order to gauge the teacher’s hopes for the lesson and her reactions after the lesson was completed. In many cases, e-mail exchanges between the researchers and teachers served as valuable pieces of data that revealed the questions and anxieties that the beginning teachers had as they struggled to choose lessons that exemplifi ed their social justice ideals. The research team analyzed the data using a common set of codes that we generated in class, as well as further codes that we created based on each individual case. We viewed each beginning teacher’s conceptions of social justice and connected those conceptions to her classroom practices. Using narrative inquiry (Ershler, 2001; Clandinin & Connelly, 2000), each researcher created a curriculum Social Justice Curriculum 297 vignette based on her classroom observations and the interviews that she conducted with her participant. The vignettes were typically two to three pages long and they included descriptions of the social justice lessons that the researchers observed, as well as analyses of how those lessons represented the teachers’ social justice conceptions in motion. The vignettes were shared with teachers as a way of conducting member-checks to insure that the researchers had accurately captured each teacher’s enactment and conceptions of social justice. In addition, each of the teacher participants received a book of curriculum vignettes at the close of the project. Ultimately, the purpose of the vignettes was to emphasize the importance of the work that the teachers were doing and to provide each participant with a collection of social justice lesson ideas that they might use in the future in their classrooms. We hoped that these narratives might in turn promote dialogue among our beginning teacher participants, that these vignettes would broaden each teacher’s conceptions of social justice curriculum, and that the process of naming and refl ecting upon social justice would aid our participants in developing and articulating their practice. After pooling and analyzing the data from our three teacher participants, the authors of this paper found a complex constellation of beliefs, commitments, and avoidances that have implications for teacher education, professional development, and qualitative research methods alike. The beginning teachers with whom we collaborated worked in various ways to engage their students in critiques of social injustices and to enable them to work against those injustices in both their classrooms and their lives. IN SEARCH OF NEW TEACHERS ENACTING SOCIAL JUSTICE CURRICULA Why Examine New Teachers’ Social Justice Curricula and Their Successes? In this inquiry, we focused on new educators, defi ning them as teachers who have less than three years of teaching experience. Much of the literature on new, novice, and beginning teachers has reported the concerns and problems they encounter during the early years of teaching. Their diffi culties have been referred to as survival and discovery (Feiman-Nemser, 1983), “sink or swim” (Lortie, 1975; Varah, Theune, & Parker, 1986) “trial by fi re” (Pataniczek & Isaacson, 1981), and “lost at sea” (Kauffman, Johnson, Kardos, Liu, & Peske, 2002). We know from the literature that such struggles can arise because of a mismatch between beginning teachers’ unrealistic expectations and the reality of schools (Corcoran, 1981; Feiman-Nemser, 1983; Howey & Zimpher, 1999; Lacey, 1977; Lortie, 1975; Veenman, 1984), the overwhelming amount and variety of duties that they are expected to perform at school (Worthy, 2005), a lack of support and guidance (Flores, 2006), and personal 298 E. Johnson et al. concerns about acceptance, control and adequacy (Kagan, 1990; Ryan, 1970). While there is a growing body of literature on beginning teachers’ success, it is relatively small compared to their stories of struggle as illustrated in the portrayals of new teachers above. This fact, coupled with our project goals to support and address the needs of educators who teach for social justice, fueled our desire to catalogue their stories of successful social justice curricular enactments. Why Consider New Teacher Backgrounds in Our Research on Social Justice Curricula? Stories of teaching success call for an exploration of personal background. Britzman (1991) wrote that learning to teach “is a time when one’s past, present, and future are set in dynamic tension” (p. 8). She and other authors maintain that a teacher’s background, her prior attitudes, and her conceptions all work to profoundly infl uence her philosophy of teaching and the ways that she approaches the diverse group of students in her classroom. A number of authors (Clark & Peterson, 1986; Clark & Yinger, 1987; Pajares, 1992) point to a teacher’s personal values and beliefs as indicators of the approach she will take to teaching. They contend that these values work to shape teachers’ educational methods as well as the stance that they take toward their students. Benyon (1985) and Knowles (1992) examine the importance of prior beliefs in preservice teachers in particular, examining the ways that those beliefs help to form preservice teachers’ thinking as well as their future practice. In his case study of an emerging social justice educator, Cantor (2002) demonstrated that a teacher’s background and personal experiences, along with her preservice program and her current teaching, all play a role in her commitments to social justice and the ways that she chooses to enact social justice within her classroom. As such, we embed each teacher’s curriculum in the context of her narrated beliefs and personal history surrounding social justice, and turn to examine how personal background and curriculum planning come into play in classroom and school contexts. Why Look at New Teacher Social Justice Conceptions “In Practice?” It can be tempting, when discussing ideas abstractly, to maintain a level of distance from the shape that those ideas might take in practice. Many teacher-researchers express verbal commitments to social justice pedagogy, yet for educators interested in bridging the theory practice gap, contributing to the small body of literature on social justice curricula, and facilitating teaching that impacts educators and youth, it is crucial to explore social justice teaching in action across distinct classrooms and school sites. Social Justice Curriculum 299 In the literature on teaching for social justice, teacher-researchers differ in their approaches to social justice pedagogy, the areas of curricular content that they explore, and the lenses through which they judge their effectiveness as social justice pedagogues. To illustrate, McCall (2004) used poetry to promote nonthreatening dialogue and self-refl ection, Goss (2005) challenged students to consider how everyday choices like buying ice cream at lunch time marginalized classmates, and Monkman, MacGillivray, and Leyva (2003) illustrated how one teacher’s literacy teaching practices promoted teacher/student shared decision-making as she honored student cultures in discussion of relevant community issues and sang songs chosen by students. Some employed literary content (McCall, 2004), as others infused social justice pedagogy across content areas, sometimes beyond academic curriculum (Goss, 2005) or coupled it with shared classroom governance (Monkman et al., 2003). While each educator judged her effectiveness as a social justice pedagogue, Goss (2005) did so by highlighting patterns in student work and data from parent surveys through the Teachers for Social Justice framework for social justice education while McCall (2004) and Monkman et al. (2003) listed classroom routines and student/teacher communication as evidence of social justice teaching. What we learn glimpsing these educators’ ideals in motion is that without a careful look at beliefs in practice, new educators and teacher educators will miss the subtle communications and daily feedback teachers garner to refl ect on their practice, refi ne, and defi ne successful social justice curriculum enactments. Therefore, we offer the following three vignettes of new teachers’ social justice curriculum in practice. Vignettes of New Teachers’ Social Justice Conceptions and Curriculum in Practice There have been some attempts to document how teachers conceptualize teaching for social justice and how they enact social justice curriculum in the classroom (e.g., Bondy & McKenzie, 1999; Cantor, 2002; Damico, Ridle, Green, & Yeager, 2004; Kelly & Brandes, 2001). However, such studies tended to overlook teachers’ personal and professional backgrounds (e.g., Bondy & McKenzie, 1999), contextual complexities in enacting curriculum as a beginning teacher (e.g., Kelly & Brandes, 2001), or they focused on just one teacher (e.g., Cantor, 2002; Damico, Riddle, Green, & Yeager, 2004). To build on and further this small body of literature on new teachers’ social justice conceptions in and out of practice, we juxtapose the following three vignettes. Each explores one beginning teacher’s conception of social justice curriculum in practice, in context, and in motion, integrating observations, interviews, and follow-up refl ections from the teacher’s emic perspective. By considering each teacher’s beliefs, personal and professional experience, in school 300 E. Johnson et al. and classroom context, we hope to illustrate some of the myriad ways early career teachers can successfully teach social justice in school amidst the broad range of factors that come into play when we put our verbal ideals into practice. STANDPOINTS, SOCIAL STUDIES, AND SOCIAL JUSTICE IN ALISON’S CLASSROOM Background At the time of this study, Alison, a young fi fth grade teacher, was in her second year of teaching at a Brooklyn Public School. She related that a passion for the issues, literature, and beauty of urban America coupled with three years teaching adult ESL in Japan brought her to her current conceptions of teaching for social justice. During the fi rst meeting, Alison encouraged the researcher to come watch a social justice lesson “any time” because components of social justice permeated her teaching throughout the day. Social justice practices she identifi ed in her class were: community circle and the examination of standards-based content from multiple perspectives. She explained that in community circle, students expressed their opinions, voted, talked, apologized, and in the end developed a thriving classroom community. Outside this circle, students engaged in “productive arguments” about literary and social studies content: I think in my class, and I think in general, you should hear different points of view like you might hear the kids arguing, like in a productive way, but arguing with each other about their ideas.... They don’t have to come to an agreement, but that they’re building off of each other. (AI, 04/04/06, p. 1–2) Alison explained the ethical, pedagogical, and curricular dilemmas inherent in integrating social justice objectives in classroom curricula. Ethically, she felt compelled to facilitate critical conversations surrounding socioeconomic and sexual differences, but was concerned that such conversations made some students feel “singled out or bad.” Pedagogically, Alison realized how easy it was for kids to adopt “the teacher’s agenda” (AI, 03/07/06, p. 8). Constraints lay in all the preparation required to lay the groundwork for students to see the complexity in social and political problems. For example, she wanted to ensure that historical events like the Civil War wouldn’t get reduced to simple equations like: North = good, South = bad, because slavery = wrong? From a curricular standpoint Alison struggled with content mandates that prevented the use of the social justice units she had developed as a preservice teacher (AI, 04/04/06). She instead crafted her own social justice social studies units, aligned to grade level content standards, along with other fi fth grade teachers at her school. The social justice social studies units Alison and her colleagues designed were (1) aligned with grade level content Social Justice Curriculum 301 standards and (2) scaffolded students to examine historical events from multiple perspectives. But Alison pointed to the dearth of historical texts from diverse perspectives. For example, her search for Mexican, Asian, and female voices on Western Expansion yielded few texts – a factor that may contribute to myopic understandings of history (AI, 4/4/2006). Curriculum Enactment Circumscribed within the above constraints, Alison conducted two “curriculum enactments,” (i.e., lessons in action or learning events co-constructed by students and their teacher) during the observation period (1) an end of the unit Western Expansion (or Contraction!) Extravaganza and (2) a text-based social studies lesson on the Civil War, both part of longer units on the historical time periods. Five weeks of research had culminated in a Western Expansion Extravaganza where the whole class donned homemade costumes (rustled up from clothes and props they found around home) and gathered to hear one another speak from the vantage points of historical fi gures. Students spoke as Nat Love (an African American cowboy), Chief Joseph (a famous Native American leader), and Rachel Donelson Jackson (Andrew Jackson’s wife), to name a few. Some shared about the lives they had led, others drew conclusions about Westward Expansion from their fi gure’s point of view, and characters bantered back and forth about their decisions, whereabouts, and the ramifi cations of their actions (with a little moderating by Alison). The second enactment was one of the initial lessons in their new Civil War unit. In previous social studies lessons, Alison introduced some debates between the North and South. Students had started reading a chapter from a textbook: “Chapter 10: The North and South, 1820–1860.” The text covered some of the economic, cultural, legal, and political events that took place in the decades prior to the Civil War. To begin, students sat together on the rug to “stop and jot” and “turn and talk” about their personal defi nitions of confl ict and compromise and review the previous day’s Civil War reading. Alison asked them to read portions of the text in small groups and compose responses to the following questions: (1) “What forces divided the nation?” (2) “What compromises were attempted?” Following twenty minutes in small groups, the class reconvened on the rug to collaboratively develop answers to the initial questions on chart paper. After debriefi ng, Alison sent small groups off to consider “Was the civil war necessary?” Each cluster was to reach a consensus and compose one written response to the question—an activity that would require students to experience dialogic confl ict and compromise. Later, groups circled on the rug to share their decisions and summarize their dialogic process. For homework, Alison asked students to journal on their small 302 E. Johnson et al. group confl icts, compromises, and opinions about the Civil War’s necessity. In community circle, Alison planned to have students talk about different issues that arose when opinions clashed and groups had to compromise, in the hopes of connecting this personal compromise experience to political compromises during the Civil War. Discussion Curriculum enactments observed in Alison’s classroom mirrored her defi nitions of social justice teaching as they integrated community circle, fostered “productive arguments,” and explored social studies and literary issues from multiple perspectives. Debriefi ng small group confl ict and compromise about the Civil War’s necessity demonstrated one of many ways Alison utilized community circle to promote student expression in her classroom. Student debates on the Civil War’s necessity and interactive performances from historical fi gures’ experiences of Western Expansion fostered “productive arguments” and brought multiple perspectives to two time periods state curriculum standards required fi fth graders to explore. The development of both units required a great deal of time to prepare, collective staff commitment to consider multiple perspectives, and teacher research to locate historical accounts from voices seldom considered. But slowly Alison scaffolded her students to consider the diverse stances people bring to historical and classroom events, past and present. HELPING OTHERS HELPS OURSELVES: LUCY’S CURRICULUM Background Lucy, who is hearing, and Aaron, who is deaf, co-taught in a bilingual public elementary school in which both deaf and hearing students learned in English and American Sign Language (ASL). Although in certain classrooms the deaf teacher, “seem[ed] to play the role of the assistant” (LI, 3/10/06, p. 6), in their classroom, Lucy and Aaron equally shared authority and instructional time. In addition, Lucy and Aaron were adamant that all students have access to the language that others are using and therefore they strictly used ASL during whole-group activities. The two teachers valued their students’ contributions and opinions and they fostered a great deal of debate in their classroom. They did not push what they considered to be important conversations aside in order to attend to mandated curricula. Lucy described classroom discussions: “We don’t ignore issues that happen in the classroom…it can last all afternoon and it ends up being a really good conversation and sometimes…it was worth it. And I think it helps them” (LI, 3/10/2006, p. 4). Social Justice Curriculum 303 Both Lucy and Aaron were committed to preparing their students for a future that would most likely prove challenging. Because most of their students were deaf, students of color, or both, “social justice” issues held a sense of immediacy. Aaron was a deaf man and Lucy was a black woman of Haitian descent. Both used their own experiences with injustice and discrimination in order to help prepare their students for the often diffi cult world that would await them. Lucy explained, “We have a lot of discussions and I ask them if they have any experiences not being treated fairly and I tell them my own experiences and my team teacher Aaron also does” (LI, 3/10/2006, p. 2). Their outlook was both pragmatic and positive: they sought to foster an awareness of the hardships that their students would likely encounter in the “real world” so that they could help these students better navigate that world and advocate for themselves. While Lucy felt strongly that issues of justice be integrated into her curriculum and interactions with students, a multitude of obstacles made such a goal diffi cult to enact. During the observation, Lucy was in her fi rst year of teaching, an experience she described as frustrating and often exhausting. Moreover, many of her fi fth grade students had spent years with teachers who expected them to do very little because they were deaf. Therefore, Lucy was teaching students whose skills were years behind those of their peers. In addition, Lucy also spent a great deal of her time preparing students for standardized tests and teaching mandated curricula. She laughed, “We try to have discussions…There are just so many things that come up…I know there should be no excuses, but we don’t always get to discuss what we write about or wrote about. But we try to” (LI, 3/10/2006, p. 3). This sentiment was one that Lucy repeated often and was one of the attributes that helped her to successfully enact a social justice framework even in the face of seemingly impossible odds. Ultimately, her constraints were unable to stop her from creating a classroom environment in which social justice and responsibility were central. Curriculum Enactment Lucy’s enactment of her social justice ideals came in the form of the Robin Hood Project, a student-generated service learning project and fundraiser. The project was inspired by Penny Harvest, a national child-driven philanthropy program that encourages students to create community service projects in their own schools and to raise money to support communities in need. Lucy and Aaron began their project by having students vote on the issue that most concerned them. The students chose homelessness and they subsequently designed a multifaceted project to raise money for homeless organizations and to increase awareness of homelessness in their school community. They collected pennies from classrooms throughout the school and wrote letters to companies to ask for further contributions. The project culminated in a school-wide assembly in which students from Lucy and Aaron’s 304 E. Johnson et al. class educated their peers about homelessness and presented the money that they had raised to a local organization. The project motivated students in countless ways. Lucy and Aaron initiated honest conversations about homelessness and they connected the project to various other topics within their academic curricula, making previously mundane topics come alive for the students. They saw a marked change in many students’ academic skills as well as in their levels of motivation. Perhaps even more importantly, the Robin Hood Project taught students important life skills that would help them to navigate within a hearing world that is often disabling. In an interview, Lucy commented, “I want them to just wake up and realize that it’s a hard world out there. Especially because you’re deaf” (LI, 3/10/2006, p. 1). Through the Robin Hood project, Lucy, Aaron, and their students turned this ominous prognosis into positive action. Through their fundraising and their all-school assembly, students acted as role models for their fellow students, deaf and hearing alike. The project not only helped the students to see the hard world ahead, but it gave them the skills and confi dence to prepare for and thrive within that world. They learned that they could be agents of change and that their disabilities did not ultimately have to hinder their successes. Discussion The success that Lucy and Aaron experienced in implementing a social justice curriculum was due in large part to a sense of social justice that was both personal and urgent. It was crucial to Lucy that she prepared her fi fth graders for the “real world” that they would soon encounter. As such, she insisted that her students engage in scenarios that would bring them in contact with that world and she made sure to scaffold them and build their confi dence as she did so. Lucy also made issues of social justice a priority in her classroom. She explained, “sometimes I feel like I don’t get any stuff done like reading or writing because something always happens and I don’t feel comfortable just continuing whatever I’m doing” (LI, 3/10/2006, p. 3). In this way she was able to gain perspective with regards to the obstacles, such as standardized curricula, that many teachers feel stifl ed by – taking and making time she considered necessary. Lucy and Aaron were not satisfi ed with a project in which students were merely giving to the homeless. They wanted the project to be a catalyst, something that forced students to notice what was going on in the world around them. And, this act of looking outward ultimately insured that each of their students gained personal and internal growth. By helping others through the Robin Hood Project, the students helped themselves in countless ways. They built their self-confi dence, bolstered their ability to think and act on their own, and learned to negotiate within a world that is often disabling. Their experiences have instilled in them abilities and traits that they will likely retain and will hopefully build upon in years to come. Social Justice Curriculum 305 WEAVING SOCIAL JUSTICE INTO TEACHING PRACTICE IN NORA’S ROOM Background Nora and Susan taught a second grade inclusion classroom in a large public elementary school on the Upper East Side of Manhattan. Both Nora and Susan were new teachers. In spite of affl uent resources and supportive administrators, Nora was still hesitant about her ability to teach for social justice. Her class was extremely diverse, and most of her students were either immigrants or children of immigrants. Of her 19 students, 9 were labeled with disabilities. Her class was also economically diverse: fi ve students lived in housing projects and received free school lunches, while she identifi ed two students as upper-class. In addition, Nora had to negotiate a balance between providing students with choice time and teaching basic skills. She had learned the importance of choice time when she was a student teacher. Yet, she understood that children needed to learn basic skills, especially in New York City, where promotion was based on test scores. As a second-generation child of Russian immigrants, Nora encountered negative experiences herself in school. Her desire to create different experiences for students brought her to pursue a teaching degree. Her preservice program had helped her articulate her social justice ideals more clearly and her teaching experiences further refi ned those ideas. With a memory of “walking a tightrope between Russian and American culture” (NI, 09/28/2006, p. 2), she constantly thought about how home language and culture impacted students’ learning and how she could honor where they came from while also acknowledging their new culture. In addition, for Nora, teaching for social justice was not just about teaching lessons; it was about how people are treated: [Teaching for social justice] is not about getting outside and pointing to it, but it’s about really refl ecting on everything you do and thinking about it and making it sure that you make conscious decisions— everything from the books you read out loud to children you call on. (NI, 03/21/2006, p. 1) Curriculum Enactment Because of Nora’s belief that social justice must pervade every aspect of one’s teaching, it was diffi cult to pinpoint specifi c social justice lessons in her classroom. Her social justice paradigm was embedded in her daily classroom practices and for this project we chose to focus on her community-building exercises, as well as her efforts to encourage her students to respect themselves and others, speak without fear, and take responsibility for their actions. 306 E. Johnson et al. One day, there had been a fi ght during lunch in which one student was teasing the other. When they got back to the classroom, Nora asked students to think about how they would feel if another person laughed at them. Then she began a whole- class discussion about what would demonstrate respectful behavior in such a situation. During the discussion, she emphasized to students that “YOU are responsible for yourself, for the choices that you make.” (NO, 02/23/06, p. 6) Then she asked the class if anyone had seen people in the yard or at the lunch tables who respected the rule, “respect yourself, supplies, and your learning” which was introduced at the beginning of the year and hung on the front wall of the classroom. After the discussion, Nora and Susan turned to a writing workshop, and students wrote about the things that made them wonder in the books they were reading. During the individual writing activity, Nora and Susan checked in on students and then began their one-on-one writing conferences; they read students work and asked guiding questions to help them go further, and encouraged students to speak about their writing. During this process, they emphasized the importance of expressing ideas freely. They then moved on to a book club workshop. An important component of the workshop was an accountability sheet, which students used at the end of the workshop, to evaluate their own participation and to refl ect upon what they discussed. Discussion Nora perceived social justice as pedagogy and paradigm rather than as content. This was partially based on her concern that some teachers considered social justice lessons to be separate from the rest of the curriculum: “When we say social justice lesson, it could be very harmful because a teacher could have said that ‘I’ll read about Martin Luther King. That’s a social justice lesson’ ” (NI, 02/19/06, p. 3). On the contrary, Nora’s own teaching demonstrated her belief that social justice must permeate a teacher’s entire pedagogy. As seen above, Nora emphasized that respecting oneself is a basic step for respecting others which is in turn a basic step for building a community. Therefore, Nora continuously praised students’ good behavior and efforts and did not miss teachable moments. When students did not follow a key classroom rule, she was sure to interrupt her scheduled curriculum to address the issue. Second, speaking without fear was another important thing for Nora. She used literacy workshops to bolster students’ voices, encouraging them to refl ect upon their lives and examine their values rather than censoring themselves. For this reason, Nora did not point out grammatical or spelling mistakes during writing workshop but rather focused on students’ content and thinking. She used morning meeting time to have students revise their sentences through a shared writing activity. In addition, she encouraged disagreement among students. She wanted Social Justice Curriculum 307 them “[to] learn how to disagree with people. And book clubs are a great way to do that because you have something tangible. We all have really different ideas about the book. I can love the book and my partner can hate that book. And we can say why” (NI, 03/21/06, p. 4). Nora also emphasized the importance of taking responsibility for one’s own choices in teaching for social justice. She strongly believed that students should understand where we are in history and that it is “really important to help [students] recognize who they are today and how the choices they make impact other people” (NI, 02/19/06, p. 4). Through the book club accountability sheet, they learned their responsibilities to the group. In this way, they were accountable to each other, not to the teachers. “If they don’t come ready to talk and they’re not good listeners, that is something that affects the group. We can coach them on it but it’s something they need to help one another” (NI, 03/21/06, p. 2). Helping students respect oneself, speak without fear, and take responsibility for one’s own choices was Nora’s way of teaching for social justice. SOCIAL JUSTICE CONCEPTIONS AND CURRICULA IN CONVERSATION As a means of navigating the gap between theory and practice, Merrett (2004) found it useful to “articulate a working defi nition of social justice,” arguing that “social justice” is “a constellation of terms” (p. 93–94). Similarly, in this paper we have offered a “constellation” of curriculum enactments to develop a working vision of social justice teaching in practice. In doing so, we learned that curriculum mandates, school planning structures, teacher and student lived experiences, social and political school and city issues, and co-teaching arrangements all contributed to the enactment of social justice curriculum for these particular teachers. For example, in Alison’s school, grade level teams co-planned social justice units with a shared goal of examining multiple perspectives on history. While Alison brought personal history and graduate learning experience to this school context, her colleagues’ ideals, her students, and a mandated curriculum interacted to produce the enactment detailed here. All three new educators’ conceptions and enactments of social justice were inevitably altered as they engaged in the practice of teaching and will no doubt continue to change the longer they remain in the classroom. Each teacher’s defi nition of social justice is itself a “working defi nition,” constantly “in the making” as factors visible and invisible shape lessons and their effects. As enacted in this paper, Alison’s decisions to adhere to mandated curriculum contrasted sharply with Lucy’s voiced commitment to put planned curriculum aside as a means to deal with the issues that arose in her classroom. Nora echoed Lucy’s focus on social justice content that emerged from student school issues in class and on the playground. However, Lucy’s Robin Hood project pushed her social justice 308 E. Johnson et al. teaching commitment outside of the classroom and the realm of students’ personal lives that Alison, and Nora centered, to underscore the obligation she felt students had to homeless people who live on New York City streets. In fact, these teachers’ curriculum enactments represent a “constellation” of content, ideology, and practice that might appear different if we were to return to their classrooms today, tomorrow, or twenty years from now. What is most important is that teachers and educational researchers interested in social justice curriculum continue to put these defi nitional terms into practice, put their visions into action, take time to systematically examine these theories in motion in classroom moments, and realize their agency in the realm of educating for social justice; for it is precisely action and motion that make a defi nition “work.” SOCIAL JUSTICE CONCEPTIONS AND CURRICULA “IN THE MAKING” With this call to put defi nitions “to work,” we encourage teachers, both novice and veteran, to consider their own conceptions of social justice and how they differ from or parallel the enacted conceptions above. Taking time to step outside of classroom practice and record personal constructs of social justice in word, print, or sketch, could provide documentation to revisit over time, as a means to explore how one’s own defi nition evolves through time and is infl uenced by personal experience. It might also be useful to ponder the ways in which one’s conceptions of social justice are affected by the practice of teaching, or what moments of social justice curriculum in one’s classroom actually look like. When a teacher compares her idealized views of social justice with the forms of social justice that she enacts on a daily basis in her classroom, she may be better able to determine what situational factors (both personal or site-based) might be worked around, against, or with to enact social justice curriculum more effectively. We also call upon administrators and those in charge of allocating and distributing school time, space, materials, and professional development to consider the factors that both inhibited and supported the social justice enactments above. For example, administrators at Alison’s school site provided time and clear vision to facilitate grade-level planning of a fi fth grade social studies curriculum from multiple perspectives. At the same time, administrators also might support teacher decisions like those exercised by Nora and Lucy who both pointed to the necessity of putting mandated curricula aside to make time to teach when specifi c classroom, school, and social issues arose. Like teachers, administrators might benefi t from articulating their own conceptions of social justice and comparing them with their daily school experiences. They might then be better equipped to ask how they can work to grow their schools into places in which social justice curriculum is a part of staff vision and action. Social Justice Curriculum 309 Finally, we underscore the need for educational researchers and teachers of higher education to also engage in analyzing and articulating their own conceptions of social justice. But, most importantly, we caution readers against using the enactments above as a road map for social justice curriculum, for these are individual moments in which beginning teachers verbalized their conceptions and attempted to put them into play in their classroom. It is certain that these teachers, in different times and spaces, would enact social justice curricula in very different ways than is evident in the above illustrations. The function of a working defi nition of social justice is not to decide which enactment is more worthy or laudable. Rather, it is to demonstrate that social justice is an active and malleable concept that can and should transform depending on circumstance and context. So too, these notions can lend a sense of self-assurance and empowerment to beginning teachers, who are often stymied by the fear that their own attempts at social justice curriculum enactments are insuffi cient. By envisioning social justice as a concept that is “in the making,” new educators may be able to see their own attempts as both adequate and worthy and they may in turn take more risks and make more efforts to bring social justice into all aspects of their classrooms and curricula. REFERENCES Bogdan, R., & Biklen, S. (2003). Qualitative research for education: An introduction to theories and methods. Syracuse, NY: Allyn & Bacon. Bondy, E., & McKenzie, J. (1999). Resilience building and social reconstructionist teaching: A fi rst-year teacher’s story. The Elementary School Journal, 100(2),130–150. Cantor, J. (2002). Who’s teaching the urban poor? Supporting an emerging social justice educator in a professional development school. Equity & Excellence in Education, 35(3), 225–235. Clandinin, D. J., & Connelly, F. M. (2000). Narrative inquiry: Experience and story in qualitative research. San Francisco, CA: Jossey-Bass. Cochran-Smith, M., & Lytle, S. L. (2001). Beyond certainty: Taking an inquiry stance on practice. In A. Lieberman & L. Miller (Eds.), Teachers caught in the action: Professional development that matters (pp. 45–58). New York: Teachers College Press. Corcoran, E. (1981). Transition shock: The beginning teacher’s paradox. Journal of Teacher Education, 32(3), 19–23. Damico, J., Riddle, R. L., Green, J., & Yeager, B. (2004). From answers to questions: A beginning teacher learns to teach for social justice. Language Arts, 82(1), 36–46. Ershler, A. R. (2001). The narrative as an experience text: Writing themselves back in. In A. Lieberman and L. Miller (Eds.), Teachers caught in the action: Professional development that matters (pp. 159–173). New York: Teachers College Press. Feiman-Nemser, S. (1983). Learning to teach. In L. S. Shulman & G. Sykes (Eds.), Handbook of teaching and policy (pp. 150–170). New York: Longman. Flores, M. A. (2006). Being a novice teacher in two different settings: Struggles, continuities, and discontinuities. Teachers College Record, 108(10), 2021–2052. 310 E. Johnson et al. Goss, L. (2005). Learning to be a good guy: Teaching for social justice in the primary classroom. Retrieved September 26, 2006, from http://www.teachersnetwork.org/tnli/ research/achieve/Goss.pdf Howey, K. R., & Zimpher, L. L. (1999). Pervasive problems and issues in teacher educaiton. In G. A. Griffi n (Ed.), The education of teachers (pp. 279–305). Chicago: NSSE: University of Chicago Press. Kagan, D. M. (1990). Professional growth among preservice and beginning teachers. Review of Educational Research, 62(2), 129–169. Kauffman, D., Johnson, S. M., Kardos, S. M., Liu, E., & Peske, H. G. (2002). “Lost at sea”: New teachers’ experiences with curriculum and assessment. Teachers College Record, 104(2), 273–300. Kelly, D., & Brandes, G. (2001) Shifting out of neutral: Beginning teachers’ struggles with teaching for social justice. Canadian Journal of Education, 26(4), 437–454 Reinhartz, S. (1992). Feminist methods in social research. New York: Oxford University Press. Lacey, C. (1977). The socialization of teachers. London: Metheun. Lortie, D. C. (1975). Schoolteacher: A sociological study. Chicago: University of Chicago. McCall, A. (2004). Using poetry in social studies classes to teach about cultural diversity and social justice. Social Studies, 95(4), 172. McDonald, J. P. (1992). Teaching : making sense of an uncertain craft. New York: Teachers College Press. Monkman, K., MacGillivray, L., & Leyva, C. H., (2003). Literacy on three planes: Infusing social justice and culture into classroom instruction. Bilingual Research Journal, 27(2), 245–258. Pataniczek, D., & Isaacson, N. S. (1981). The relationship of socialization and the concerns of beginning teachers. Journal of Teacher Education, 32(3), 14–17. Ryan, K. (1970). Don’t smile until Christmans: Accounts of the fi rst year of teaching. Chicago: The University of Chicago Press. Varah, L. J., Theune, W. S., & Parker, L. (1986). Beginning teachers: Sink or swim? Journal of Teacher Education, 37(1), 30–34. Veenman, S. (1984). Perceived problems of beginning teachers. Review of Educational Research, 54(2), 143–178. Wasser, J. D., & Bresler, L. (1996). Working in the interpretive zone: Conceptualizing collaboration in qualitative research teams. Educational Researcher, 25(5), 5–15. Williams, L. R. (1996). Does practice lead theory? Teachers’ constructs about teaching: Bottom-up perspectives. In J. A. Chafel & S. Reifel (Eds.), Advances in early education and day care (Vol. 8, pp. 153–184). Greenwich, CT: JAI Press. Worthy, J. (2005). “It didn’t have to be so hard”: The fi rst years of teaching in an urban school. International Journal of Qualitative Studies in Education, 18(3), 379–398. 
work_szq6qjctjrdrlfhph7b47uenga	----	PUNISH6.PDF 1 PUNISHMENT, FORGIVENESS, AND DIVINE JUSTICE Thomas Talbott Willamette University Originally published in Religious Studies 29, 151-168 Copyright 1993 Cambridge University Press Introduction According to a long theological tradition that stretches back at least as far as St. Augustine, God's justice and mercy are distinct, and in many ways quite different, character traits. In his great epic poem, Paradise Lost, for example, John Milton goes so far as to suggest a conflict, perhaps even a contradiction, in the very being of God; he thus describes Christ's offer of himself as an atonement this way: No sooner did thy dear and only Son Perceive thee purpos'd not to doom frail Man So strictly, but much more to pity inclin'd, Hee to appease thy wrath, and end the strife Of Mercy and Justice in thy face discern'd Regardless of the Bliss wherein hee sat Second to thee, offer'd himself to die For man's offense.1 Here Milton suggests, first, that the fall of the human race produced a conflict within the heart of God, a ‘strife’ between his mercy and his justice, and second, that Christ's atonement somehow managed to resolve the conflict. Presumably the source of the conflict was this: As a righteous judge, God willed something for the fallen human race that he could not possibly will in his role as a loving father; and as a loving father, he willed something that he could not possibly will in his role as a righteous judge. As a righteous judge, he willed that justice should prevail; and since justice requires retribution for sin, he was quite prepared to punish sin— in hell, for example— without any regard for the sinner's own good. But as a loving father, he also wanted to forgive sin and to permit his loved ones to escape the terrible punishment they deserved on account of 2 their sin. Hence the strife within the heart of God, and hence the need for an atonement that would appease the wrath of God— that is, satisfy his justice— and put an end to the strife. It is almost as if, according to Milton, Christ died not to effect a cure in us, but to put an end to a bad case of schizophrenia in the Father. That may be a bit of a caricature, but it illustrates the point that, according to Milton and a host of other theologians, Christ died in order that God might be merciful to sinners without doing violence to his own sense of justice. I have suggested that such ideas have a long history, extending back at least as far as St. Augustine. But some may wonder whether Augustine really held such a view. For in some of his philosophical reflections upon the nature of God, at least, Augustine explicitly sets forth a doctrine of divine simplicity: the difficult to understand (and, I suspect, finally incoherent) idea that each attribute of God is identical with God himself and with every other attribute of God.2 And whatever else one might say about such a doctrine, it seems obviously inconsistent with what I am here calling "the Augustinian picture of God": the idea that mercy and justice are distinct and opposing attributes of God. In many of Augustine's theological writings, however— particu- larly those produced towards the end of his life and those in which he stresses a doctrine of limited election— he clearly does proceed as if justice and mercy were distinct and opposing attributes of God. In the Enchiridion, for example, he argues that all human beings, by reason of their relationship to Adam, are part of "a corrupt mass"; that all of them, the children no less than the adults, therefore deserve everlasting punishment. He argues further that God selects from this corrupt mass a limited elect to which he extends his mercy; having made them a special object of his love, he saves them from their sin. The rest God simply leaves in their sin and guilt, and they have, Augustine insists, no grounds for complaint thereupon: For God merely gives them the punishment they deserve.3 So the rest are objects of God's justice, but not his mercy, and that is 3 possible only if justice and mercy are distinct attributes of God. Accordingly, though Augustine does at times defend a doctrine of divine simplicity, his predestinarian theology rests upon a very different picture; and it is this latter picture, which so influenced John Calvin and the later Protestant Reformers, that I shall henceforth call the Augustinian picture of God. Now one of my aims in what follows is to contrast this Augustinian picture, as I shall call it, with a radically different picture of the simplicity of God's moral nature. According to the alternative picture, God's mercy and justice are not distinct attributes that sometimes push him in opposite directions, thereby creating a conflict within him that someone else, namely his Son, must resolve for him; to the contrary, God has but one moral attribute and that is loving kindness. It would even be misleading, given the simplicity of God's moral nature, to say that mercy and justice are different expressions of the one attribute, loving kindness; for though God's love may indeed take different forms at different times, his mercy demands everything his justice demands, and his justice permits everything his mercy permits. According to the alternative picture, in other words, ‘mercy’ and ‘justice’ are but two different names for God's one and only moral attribute, namely his love. Such a picture seems to me both more coherent and more faithful to the theology of St. Paul than the Augustinian picture, but I shall not try to defend such controversial claims in any detail here. My purpose here is more modest and more preliminary than that. In what follows, I shall be content to point to some difficulties (as I see them) in the Augustinian picture and to illus- trate a different way of putting things together. Augustine not only articulated a powerful— though also, in my opinion, a flawed— conception of God; he also put a lot of things together in imaginative and creative ways. And that, more than anything else, explains the success that Augustinian theology has had over the centuries: By communicating a relatively simple picture of 4 how to put things together, Augustine inspired belief in subsequent generations. Accordingly, after setting forth some difficulties with the Augustinian picture, I shall try to illustrate a different way of putting things together, one that begins with the assumption that God's justice is no different from his mercy and hence no different from his love. The Idea of Divine Retribution A fundamental precept of Augustinian theology is that God will eventually save some, but not all, sinners from the punishment they deserve. But just what is the punishment that those who remain in their sin shall have to endure? As Augustine describes it, "deserved and supreme misery shall be the portion of the wicked"4; the wicked shall have to endure, first, everlasting separation from God, and second, everlasting "physical" torment in the form of literal flames which, though they produce the same experience as an earthly fire, never consume those who writhe forever in them.5 Similarly, John Milton, despite his emphatic rejection of Augustinian predestination, describes the fate of those who freely reject the grace of God in Jesus Christ this way: The second death, the punishment of the damned, seems to consist of the loss of the supreme good, that is, divine grace and protection and the beatific vision, which is commonly called the punishment of loss. It consists also of eternal torment, and the usual name for this is the punishment of sense.6 Now behind any such doctrine of everlasting punishment lies a particular philosophical theory about the nature of punishment and the nature of moral guilt. We may call it, as many others have, the retributivist theory of punishment. According to this theory, the justification for punishment has nothing to do with deterring crime, or with rehabilitating the criminal, or with protecting society against criminal behavior; these may all be worthy goals, but they have nothing to do with punishment as punishment. The only justification for punishment as punishment is that it serves the cause of justice; hence the only question relevant to any given punishment as punishment is whether the punishment in fact fits the crime. If Judas betrayed Jesus for thirty 5 pieces of silver, then the first question is whether Judas was truly responsible for his act and had therefore acquired some measure of guilt; if he had, then justice requires that he receive in return a certain penalty, perhaps suffering of some degree or a compensating loss of some specifiable kind. St. Anselm, a clear proponent of such a theory, thus speaks as if the sinner acquires a kind of debt; in the very act of disobeying God, he or she fails ‘to render to God what is due’ and thus ‘dishonors Him and removes from Him what belongs to Him’.7 So in effect the sinner steals from God, or at least tries to steal, his honor. But in the end, says Anselm, it is ‘impossible for God to lose His honor. Either the sinner freely repays what he owes or else God takes it from him against his will.’8 In the latter case, God restores his own honor by punishing the sinner: ‘when because of his sin he [the sinner] is deprived of every good, he is repaying from his own possession (although against his will) what he has seized.’9 In that way, the punishment of the sinner— that is, the infliction of suffering, or at least the removal of happiness— balances ‘the scales of justice’ and makes up for, or is satisfaction for, the sin itself. According to retributivists, then, the most important purpose of punishment is to satisfy the demands of justice, that is, to extract from the guilty a compensating loss; and according to many theists in the Augustinian tradition, that is also God's sole purpose in punishing the damned: to extract from them a compensating loss so that the scales of justice will balance. Now I believe, for reasons I shall give below, that such a theory is fundamentally flawed. But within a certain legal context, the retributivist theory does have some strengths that we should perhaps appreciate, and retributivists have pointed to important difficulties in such utilitarian theories as the deterrence theory or even a simple rehabilitation theory. As retributivists are fond of pointing out, such theories tend to sever the concept of punishment from that of justice and thus to open the door for tyranny.10 If the primary purpose of punishment were to deter crime, for example, and we 6 should find that on certain occasions we can accomplish that by punishing an innocent person— perhaps a child of the guilty party or someone whom the vast majority believe to be guilty— then we would seem to have a justification for punishing the innocent. Or, if the primary purpose were to rehabilitate the criminal without regard for the criminal's own autonomy and rights as a person, we might feel justified in subjecting the criminal, against his or her will, to excessive ‘punishment’— that is, to prolonged and cruel treatment— for a minor offense, or even for no proven offense at all. According to the retributivist, however, the primary consideration in punishment should be justice, not deterrence and not rehabilitation. It is never just to punish an innocent person, whatever deterrent value such punishment may seem to have; nor is an excessive punishment ever just, whatever value such ‘punishment’ may seem to have as a means of rehabilitation. And in addition to these important ideas— that a just judge never intentionally punishes the innocent and always tries to fit the punishment to the crime— retributivists make an even stronger point about the nature of law, namely this: The very difference between a law or a command on the one hand and a mere request on the other is that the former, unlike the latter, requires something like retribution in the case of disobedience. This is not really a point about when punishment is justified; it is a logical point about when a rule is, and is not, a law. You simply cannot have a law, except in name only, without also having some penalty in the case of disobedience. So if God wants to do more than simply make requests, if he wants to issue commands or to establish the rule of law, he must also ensure that those who disobey his commands or his laws suffer a punishment of some kind. Accordingly, whatever defects the retributivist theory may ultimately have, retributivists have made an important contribution to our understanding of the relationship between law and punishment. They have also helped to clarify the idea of an excessive punishment. Contrary to 7 popular belief, the Old Testament principle of retaliatory justice— ‘an eye for an eye and a tooth for a tooth’— was never instituted for the purpose of justifying harsh punishment for serious crimes, something that no one at the time would have questioned; it was instituted for the purpose of eliminating excessive punishment, such as capital punishment in exchange for a tooth. The idea was very simple. We must measure the seriousness of a crime according to the degree of harm done, and we must proportion the punishment to the seriousness of the crime. He who kills a man shall be put to death. He who kills a beast shall make it good, life for life. When a man causes a disfigurement in his neighbor, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; as he has disfigured a man, he shall be disfigured (Leviticus 24:17-20). This may seem harsh and unforgiving, as indeed it is, but it also has the effect of placing strict limits upon allowable punishment. And it raises an intriguing question: Given the principle of equal retaliation (lex talionis), for what sort of crime might everlasting torment be a just retaliation? I think we can, if we are clever, imagine such a crime. Consider a world in which one person not only murders another but somehow manages to annihilate the soul of the other, that is, somehow manages to put the other out of existence altogether; or, consider one in which one person somehow manages to inflict everlasting suffering upon someone else. If we can imagine a world in which one person does irreparable harm to another, then in such a world perhaps the one responsible for such irreparable harm would, given the principle of equal retaliation, deserve to suffer everlastingly in return. But if God is both omnipotent and perfectly loving, no such crime is even possible, it would seem, in a world that God has created and therefore governs. For if an action were so heinous, so dire in its consequences for others, that its perpetrator would deserve to suffer everlastingly in return, then a loving God would never permit it in the first place; his love for the potential victims would require him to protect them from such irreparable harm, and in so protecting them, he would likewise be preventing others from doing irreparable harm. 8 Insofar as the degree of harm done determines the gravity of an offense, therefore, God could never permit any offense that would warrant everlasting torment as a just penalty. So here we already have, I believe, an initial difficulty for the doctrine of hell, as Augustine and Milton understand it. That doctrine clearly requires a retributivist theory of punishment, but it also seems to contradict the retributivist's own principle of equal retaliation: the principle that punishment must be in direct proportion to the degree of harm done. According to retributivists, certain punishments are intrinsically fitting for certain crimes in this sense: They satisfy the demands of justice; a greater punishment would be excessive, and a lesser one would fail to satisfy justice to the full. But then, if that is true, those who endure the appropriate punishment for their crimes should then be free of guilt; having paid their debt, they would no longer need forgiveness and no longer deserve further punishment. And because God necessarily limits the harm that anyone can do to others, all of us, including the world's worst criminals, should therefore be able to pay for the sins we commit in this life over a finite period of time. Even if we accept a retributivist theory, therefore, we are entitled to ask: Why should everlasting torment be an appropriate punishment for any actual crime? At the very least, it would seem, the Augustinians must either reject or modify the retributivist's principle of equal retaliation. They must defend a proposition which, on its face, seems indefensible: the proposition that, despite the limited harm we have done to others, our actions are so heinous (and our guilt of such magnitude) that we deserve a punishment, namely everlasting torment, which is far out of proportion to the harm we have actually done. Concerning Guilt and the Question of Desert One question for the Augustinians, then, is this: Even if we accept a retributivist theory of punishment, why should anyone suppose that some sinners actually deserve to suffer everlastingly 9 for their sin? The question is especially acute when we consider the supposed source of guilt. For as I indicated above, Augustine appeals to the fall of Adam and to the doctrine of original sin in an effort to explain the source of our own guilt; he insists that this ‘one sin originally inherited, even if it were the only one involved [my emphasis], makes men liable to condemnation.’11 And following Augustine, John Calvin makes a similar appeal: Original sin . . . seems to be a hereditary depravity and corruption of our nature, diffused into all parts of the soul . . .. [As a result], we are so vitiated and perverted in every part of our nature that by this great corruption we stand justly condemned and convicted before God, to whom nothing is acceptable but righteousness, inno- cence, and purity.12 From the perspective of a retributivist theory of punishment, however, the appeal to original sin merely compounds the difficulty. One of the most important intuitions underlying the retributivist theory is that we are neither responsible nor justly punished for the sins of another; and if we accept that intuition, then the idea of inherited guilt makes no sense at all. If, as Calvin suggests, we have inherited a depraved and corrupt nature, if we are subject to evil impulses not of our own making, then God has less to forgive us for, not more. He may have more to deliver us from, but not more to forgive us for. Consider how one author in the Augustinian tradition, Loraine Boettner, describes the effects of original sin: Man's fallen nature gives rise to the most obdurate blindness, stupidity, and opposition concerning the things of God. His will is under the control of a darkened understanding, which puts sweet for bitter, and bitter for sweet, good for evil, and evil for good.13 Virtually every one of these supposed effects is, from the perspective of a retributivist theory of punishment, an excusing condition: Such conditions as ‘blindness’, ‘stupidity’, and a ‘darkened understanding’, particularly when not self-imposed, can only decrease our personal guilt; they could hardly increase it. So if anything, the doctrine of original sin, as many have interpreted it, seems to provide an additional reason for denying that you and I deserve to suffer everlastingly 10 for our sin. Such a doctrine merely pushes the crucial question one step further back anyway. For even if we set aside the problem of inherited guilt, the most fundamental question remains: Why should anyone think that everlasting torment is a just punishment for any act of rebellion, whether it be yours, or mine, or Adam's, or even that sometimes attributed to Satan himself? How could any finite being, limited in power and knowledge and wisdom, subject to deception and blindness, ever do anything that would deserve such punishment by way of a just recompense? In an effort to answer such questions, St. Anselm argues that the gravity of an offense has nothing to do with the degree of harm done; neither does it have anything to do with potential harm, or even intended harm. He asks us to consider a simple example: Suppose that God were to forbid you to look in a certain direction, even though it seemed to you that by doing so you could preserve the entire creation from destruction.14 If you were to disobey God and to look in the forbidden direction, you would sin so gravely, says Anselm, that you could never do anything to pay for that sin. As a good retributivist, Anselm first insists that ‘God demands satisfaction in proportion to the extent of the sin’.15 He then goes on to insist: ‘you do not make satisfaction [for any sin] unless you pay something greater than is that for whose sake [namely God's] you ought not to have sinned.’16 And this seems to imply that the greatness of the one against whom an offense occurs, not the degree of harm done, determines the extent, or the gravity, of the sin. So perhaps Anselm's argument is this: If God is infinitely great, then the slightest offense against God is also infinitely serious; and if an offense is infinitely serious, then no suffering the sinner might endure over a finite period of time could possibly pay for it. So either the sinner does not pay for the sin at all, or the sinner must pay for it by enduring everlasting suffering (or at least a 11 permanent loss of happiness). And since, for Anselm, every sin is ultimately a sin against God, it follows that no sinner could ever pay for any sin over a finite period of time. This is, in truth, the only argument I have been able to find in support of the view that all sinners deserve to suffer everlastingly for their sin. It seems to be the basic argument that people have in mind; though few are as explicit about the argument as Anselm is, many talk about the greatness of God and the heinous nature of any sin against him. But the argument is also rather strange, to say the least. First, why should the greatness of the one against whom an offense occurs determine the degree of one's personal guilt? Given a retributivist theory of punishment, the personal guilt of those who act wrongly must depend, at least in part, upon certain facts about them; it must depend, for example, upon the answer to such questions as these: to what extent are those who act wrongly responsible for their own rebellious impulses?— to what extent do they see clearly the choice of roads, the consequences of their actions, or the true nature of evil?— to what extent do they possess not only an implicit knowledge of God and his will for them, but a clear vision of the nature of God? Even the Augustinians admit the relevance of such questions when they insist that Adam's sin was especially heinous because he had special advantages, such as great happiness17 and the beatific vision, which you and I do not enjoy. If Adam's sin was especially heinous because he had special advantages, then the sins of those who lack his special advantages must be less heinous; and if that is true, if some sins against God are less heinous than others, then the greatness of God cannot be the only, or even the decisive, factor in determining the seriousness of a given sin. Second, if every sin is infinitely serious and thus deserves the same penalty as every other sin, namely everlasting torment, then once again the idea, so essential to the retributivist theory, that we can grade offenses collapses— as does the idea of an excessive punishment and that of 12 fitting lesser punishments to lesser crimes. Many Christians do, it is true, speculate that gradations of punishment exist in hell; some, they suggest, may experience greater pain than others, and some places may be hotter than others. But even that seems inconsistent with the idea that every sin against the infinite God is infinitely grave and therefore equal to every other sin, and it does nothing to ameliorate the difficulty anyway. If all of the sinners in hell are dead in the theological sense, if all have lost everything that might make life worth living and have lost it forever, then all have received essentially the same punishment: everlasting separation from God and a permanent loss of happiness. And the idea that all sins deserve essentially the same punishment undermines perhaps the most important intuition behind the retributivist theory: that some offenses merit less severe punishments than others. We would hardly regard a king who executes every law-breaker, the jay-walker no less than the murderer, as just; nor would we feel much better if, in an effort to fit the punishment to the crime, the king should reserve the more humane forms of execution for the jay-walker. Third, even if the slightest offense against God were infinitely serious, our fundamental question would remain: Why should anyone think that everlasting torment is a just penalty for any possible sin at all, even one that is infinitely serious? Retributivists do tend to believe that the more serious the offense, the more severe the punishment deserved, but even that is true only to a point. At some point additional punishment in the form of additional suffering seems diabolical and seems to have nothing to do with justice at all. Whether we believe in capital punishment or not, most of us probably would regard execution as a more fitting punishment for murder than for jay-walking; we so regard it, no doubt, because we regard murder as a more serious offense than we do jay-walking. But we also regard the rape and murder of many women over a period of years as even more heinous than the murder of one person; and we could devise— as many 13 societies have— punishments far more severe than mere execution. We probably now have the technology to kill a person, inch by inch, over a period of years, all the while subjecting that person to such excruciating torment that death would seem like a blessing. Should we conclude that a mass murderer, such as Ted Bundy, deserves a more severe punishment than execution?— that a more just, or fitting, punishment would be to torture him to death over a period of years? I see no reason to draw any such inference, and neither have retributivists typically drawn such an inference. Even if we could justify such an inference, moreover, that would in no way justify the further inference that Ted Bundy deserves to suffer everlastingly for his crimes; far less would it justify the inference that those who inflict less suffering than Bundy did also deserve to suffer everlastingly for their sin. Indeed, once you begin to measure the seriousness of a sin by some criterion other than the degree of harm done, you seem to undermine the retributivist rationale for proportioning the degree of punishment to the seriousness of the sin. One can always challenge, of course, the moral intuitions that underlie the retributivist idea of a fitting punishment; one can challenge, for example, the widespread intuition that it is wrong to inflict upon wrong doers greater suffering than they themselves have inflicted upon others. But in challenging such intuitions, one also undermines the only ground we have for accepting the retributivist theory in the first place. Is God a Retributivist? We have seen so far that, even if we accept a retributivist theory of punishment, there remain serious difficulties in the Augustinian conception of divine punishment. But now we must examine the retributivist theory more closely and consider some of its difficulties. I believe that Anselm himself points, unwittingly, to the fatal flaw in this theory. Recall that, according to Anselm, no punishment that a disobedient person might endure over a finite period of time could 14 possibly pay for the slightest offense against God. I shall now argue that Anselm was right about this; if God should torment us from now until the end of time, that would not successfully cancel out a single sin. But unfortunately, Anselm never fully grasped why he was right, because he never fully grasped this all-important point: Punishment is simply not the sort of thing that could pay for any offense; it is no equipoise at all for sin. Instead of concluding, as he should have, that the retributivist theory is mistaken, Anselm distorts the theory beyond recognition and thus concludes that all offenses warrant essentially the same punishment; namely, everlasting torment in hell. His intuition seems to be this: If no suffering of finite duration will satisfy the demands of justice, perhaps suffering of infinite duration will do the trick. But the truth is that no suffering of any duration will fully satisfy the demands of justice, because justice requires something of a different nature altogether. We thus approach the fundamental weakness of the retributivist theory. According to retributivists, justice requires that we suffer some loss in return for every immoral action and in proportion to our degree of guilt; it requires punishment, not as a means to some other end, but simply for the sake of justice itself. But though retributivists insist that, for every immoral action, some degree of retaliatory punishment is intrinsically fitting, they have failed to appreciate, I believe, the very limited legal and temporal contexts in which their theory has even a degree of plausibility. Many are the contexts, perhaps, in which punishment is a fitting means to a desirable end, such as the protection of society or the redemption of the guilty, but very special are those— if there are such at all— in which it is, or even seems to be, intrinsically fitting. Because punishment alone does nothing to make up for, or to cancel out, any crime, it seems intrinsically fitting only within a context in which real justice seems impossible to achieve; that is, only within a 15 context in which we have to settle, or think we have to settle, for the best possible alternative: a kind of partial, or even contrived, justice. Consider this question: Exactly what is it that real justice would require in the event that one should do something morally wrong, something that harms another or even oneself? I mean to ask here a very general question: What sort of thing would satisfy justice to the full in the event that one should do some-thing morally wrong? The answer, it seems to me, is obvious: If one could somehow make amends for the wrong action, that is, undo any harm done, repair any damage, in a way that would make up for, or cancel out, the bad consequences of the action (in one's own life as well as in the life of others), one would then satisfy justice to the full. I fully appreciate that, when stated in such general terms, this answer may seem rather silly; it is doubtful, you might think, that a murderer could do very much in this life to make up for, or to cancel out, the bad consequences of a vicious murder. But that is not to the point. What would satisfy justice to the full is one question; whether a given person is in a position, or has the power, to accomplish this is another altogether. So far as I know, few murderers have the power to resurrect their victims or to undo entirely— apart from God's help— the harm they have done; so if we move outside a theistic context, if we assume that physical death is the end of a person's conscious existence or that the murderer has done irreparable harm to others, then we can conclude only that perfect justice in the matter is impossible. In that event, those who believe in capital punishment may think it fairest simply to execute the murderer. Let the murderer suffer a loss in some ways comparable to that which he or she has inflicted on others. One reason, according to Herbert Morris, that such retaliatory punishment sometimes seems just is that it prevents one person from gaining an unfair advantage over others. A person who violates the rules has something others have— the benefits of the system— but by renouncing what others have assumed, the burdens of self-restraint, 16 he has acquired an unfair advantage. Matters are not even until this advantage is in some way erased.18 But justice requires not only that a criminal's unfair advantage be erased; in many cases, it also requires that a victim's unfair disadvantage be erased. It even requires, I think, that the one responsible for a crime do something to make amends for it, something that might help to erase the victim's unfair disadvantage. In human society, of course, we cannot always achieve perfect justice; some may wonder whether even God has the power to achieve it. And when we cannot achieve perfect justice in a given case, such as cold-blooded murder, we then settle for the best possible alternative: a means of removing the murderer's unfair advantage. But whether we execute murderers, condemn them to a life sentence without possibility of parole, or punish them in some other way, our punishment does not in any way undo the harm they have done either to themselves or to others and does not, therefore, satisfy all the demands of justice. Even the retributivists, I would also point out, recognize that punishment cannot, in and of itself, satisfy justice to the full. Richard Swinburne thus writes: ‘The taking of punishment removes all the effects of wrongdoing which someone other than the wrongdoer can remove.’19 But that is not true either. If a mugger breaks my leg, the doctor who sets the leg may do more to remove the effects of the mugger's wrongdoing than punishing the mugger will ever do; and if God resurrects victims of murder, he may again do more to remove the effects of the murderer's wrongdoing than punishing the murderer will do. Of course, where punishment effectively encourages repentance or effectively achieves the goal of correction, it may do much to remove the effects of wrongdoing; but our present concern is with the sense we sometimes have that punishment is intrinsically fitting. And that sense, I have suggested, expresses a judgement something like this: If we cannot achieve perfect justice, if we must settle for partial justice as a kind of second best, then we should at least prevent the wrongdoer, in so far as it lies within our 17 power to do so, from achieving an unfair advantage over others. Beyond that, there is also a tendency to objectify our desire for vengeance or revenge. When a criminal seems to have done irreparable harm to others and no one, not even the criminal, seems able to repair the damage, we have a natural urge to strike back; if we cannot achieve perfect justice, we can at least ‘even the score’ a bit. And our legal system permits us to express that urge in accordance with a set of carefully defined rules, which a judge can indeed apply in a disinterested way. But whether it rests upon a desire to prevent wrongdoers from achieving an unfair advantage or upon the desire to avenge the victims with whom we sympathize, our sense that punishment is sometimes intrinsically fitting clearly presupposes a context in which the ideal of perfect justice is, or seems to be, impossible to achieve. So now we must ask: What role might punishment of a retributivist kind have in a context— if there is such a context— in which perfect justice is not impossible to achieve? Presumably no humanly devised system of justice can escape altogether our human weaknesses and limitations. Unlike God, we humans have neither the data nor the wisdom nor the power to administer a perfect system of justice, and not only that: If we should try to institute a loftier system than we are fit to administer, we would most likely institute a tyrannical regime and thereby produce even greater injustice. Accordingly, not even the best of the humanly devised systems of justice can be anything more than a distorted reflection of divine justice— limited, perhaps, to preventing wrongdoers from achieving an unfair advantage through their misdeeds and to regulating our human desire to strike back. But if we suppose that God, being supremely powerful, supremely wise, and supremely loving, can achieve and will settle for nothing less than perfect justice, then we must also suppose that he will settle for nothing less than a full atonement 18 for sin— something that will actually make up for, or cancel out, sin; and as we have seen, punishment (in and of itself) has no power to do that. So what, specifically, does perfect justice require? What sort of thing would make up for, or cancel out, sin? If we accept the Christian view, according to which sin is anything that separates us from God and from each other, then the answer to our question is clear: Perfect justice requires reconciliation and restoration. It requires, first, that sinners repent of their sin and turn away from everything that would separate them from others; it requires, second, that God forgive repentant sinners and that they forgive each other; and it requires, third, that God overcome, perhaps with their own cooperation, any harm that sinners do either to others or to themselves. Some will no doubt balk at the idea that perfect justice in a theistic universe would lay so many requirements, however self-imposed, upon God himself, and some may find particu- larly offensive the idea that justice requires forgiveness. Do I really want to insist not only that sinners ought to repent, but also that God owes it to them to forgive them when they do?— that repentant sinners actually deserve God's forgiveness? In point of fact, I want to claim more than that. It seems to me that all sinners, repentant or otherwise, deserve God's forgiveness, not because they have earned it, which is impossible, but because it is their inalienable right as sons and daughters of God. Merit has nothing to do with it. Sinners are entitled to God's forgiveness for the same reason a newborn baby is entitled to parental care: because it is something they desperately need and cannot live without. Even the Augustinians, I would note, seem prepared to acknowledge this much: Because God has forgiven us and has commanded us to forgive others, we have an obligation to forgive; we have no right, that is, not to forgive. But why, I would ask of them, has God commanded us to forgive others? Is it not because, given the Christian view of 19 the world, forgiveness is the just and proper response to sin? Is it not because the sinner, who yet retains the image of God, deserves forgiveness? With such questions as these, we approach a critical parting of the ways, a point at which our two pictures of God diverge dramatically. In part because they regard justice and mercy as distinct attributes of God, the Augustinians suppose that God could justly have refused to forgive sinners or to save them from their sin; as the Augustinians see it, this makes God's forgiveness a free gift and his mercy all the more glorious because it is supererogatory. But if, according to our alternative picture, God's moral nature is simple— if all of his moral attributes are identical with his love— then his justice will be altogether merciful even as his mercy is altogether just; he will punish sinners, in other words, only when it is merciful to do so, and he will always forgive them because that is the most loving and therefore the just thing to do. As I shall try to show in the following section, moreover, such a picture has several advantages over the more traditional Augustinian picture: It accords better with the New Testament analogy between God and a loving parent; it embraces a more radical conception of God's opposition to sin; and it provides, I believe, a more profound understanding of how God will finally vindicate his righteousness in the face of unjust suffering. Why Divine Justice Requires Forgiveness Those who set forgiveness over against punishment and confuse the forgiveness of sin with the tolerance of sin will inevitably reject the idea that divine justice requires forgiveness. But that surely is a misunderstanding. The woman who forgives her adulterous husband does not merely tolerate his unfaithfulness; she may also demand a change in his behavior and may even demand it as a condition, not of forgiveness, but of continuing the marriage. Just because she does forgive her husband and continues to love him, she may refuse to continue in a dishonest relationship. 20 And similarly for the parents who discipline their children; those who regard parental discipline as evidence of an unforgiving attitude simply do not understand what the purpose of such discipline is. So if, as our alternative picture suggests, forgiveness and just punishment have the same object and the same goal (namely, reconciliation), then the idea that sinners deserve forgiveness is no more absurd than the idea that they deserve punishment. Consider more closely, for a moment, the analogy to which the New Testament directs our attention: that between God and a loving parent. Do not loving parents typically acknowledge an obligation to forgive their disobedient children? We see this most clearly, perhaps, in cases of genuine repentance and remorse. Suppose that the teenage daughter of a well-known televan- gelist is arrested for drunk driving, and suppose that she is utterly heart-broken over the embarrassment she has brought to her family and is prepared to do anything within her power to make amends. Suppose further that, when she begs her father's forgiveness, he refuses to be reconciled to her and declares that, because she has disgraced the family, he never wants to see her again. Has the father acted justly? Clearly not, for he has failed, it seems, to discharge one of his obligations as a father; indeed, given his special position of responsibility, his own sin, in refusing to forgive, seems far worse than his daughter's sin. In a case such as this, therefore, it seems quite natural to say that the father owes it to his daughter to forgive her and that his daughter deserves his forgiveness. And similarly for God; if he should refuse to forgive repentant sinners— which, given the simplicity of his loving nature, he cannot do, because he cannot deny himself— he would likewise fail to discharge one of his obligations as the Creator. For one of these obligations, however self-imposed, is to promote the welfare, including the spiritual welfare, of all created persons; God could no more choose to create persons without accepting that obligation than human parents can choose to raise children without acquiring a similar obligation 21 for the welfare of their children. And a God who refused to forgive repentant sinners could no more promote the welfare of those for whom he is responsible than a father who refuses to forgive his children can promote the welfare of the children for whom he is responsible. That is why, given the simplicity of God's moral nature, he forgives not only because he is merciful, but because he is faithful and just as well (see I John 1:9). Let us now change the example a bit and suppose that the daughter is not particularly repentant. We might imagine that she is in a rebellious stage, that at this time in her life she desires, or seems to desire, the approval of her high school friends more than she does that of her parents; as a result, she becomes more and more defiant. Would that relieve her father of his obligation to forgive her? Again, it seems not. But in this case the father's forgiveness, however heartfelt, may not suffice to heal the broken relationship. So let us ask this further question: What are the father's obligations in the event that his daughter's actions become more and more destructive to herself and more and more harmful to others? Here it seems clear that he must oppose his daughter's destructive behavior, and a well-chosen punishment may be the best means of communicating such opposition; on that score, at any rate, we can all agree. But insofar as such punishment expresses the father's continuing love for his daughter, it again implies no lack of forgiveness; to the contrary, it precisely expresses a forgiving attitude. Of course, any human father will also have to contend with his own weaknesses and limitations, and these may include feelings of resentment or even an unforgiving spirit. But in the case of God, the matter is quite different: We need have no fear that God, whose responsibility for the moral and spiritual welfare of created persons is far greater than that of any earthly father, might fail to discharge one of his obligations as the Creator. For if God is necessarily faithful and just and necessarily accepts, 22 having created a world, all the obligations of the Creator, then his forgiveness, which is in no way opposed to punishment, will be unconditional and without limit of any kind. As these examples illustrate, the idea that divine justice requires forgiveness accords very well with the New Testament analogy between God and a loving parent. It also illuminates in an intriguing way the nature of God's opposition to sin. As the Augustinians see it, God opposes sin enough to punish it, but not enough to destroy it altogether; instead of destroying sin altogether, he merely confines it to a specially prepared region of his creation, known as hell, where he keeps it alive for an eternity. According to our alternative picture, however, God forgives sin for this very reason: In no other way could he oppose sin with his entire being. For as the Apostle Paul saw so clearly, our specific sins express a sinful condition, and the latter is a form of spiritual death; it is simply our condition of being separated or estranged or alienated from God and from each other. So the opposite of a sinful condition is a state of reconciliation; and if that is so, then God cannot be against sin, cannot oppose it with his entire being, unless he is for reconciliation. And he can hardly be for reconciliation unless he is prepared to forgive others even as he has commanded us to forgive them. Indeed, if God should refuse to forgive someone, as is not even possible given his loving nature, he would then separate himself from this person; and that is the very essence of sin as Paul himself understood it. But there is, I believe, an even more subtle reason why divine justice requires the forgiveness of sin, namely this: Divine forgiveness is one of the essential means by which God protects the innocent from irreparable harm and will eventually vindicate his righteousness in the face of unjust suffering. Without any cooperation from us, God can deflect much of the harm that we might intend to do to others; he can resurrect victims of murder, for example, just as easily as he can victims of old age. He can even use the harm that we intend to do to others as a means of 23 perfecting them and of promoting their good. But the real harm we do to others is another matter, because it rests upon the harm we do to ourselves, as the mother whose teenage daughter commits suicide illustrates so nicely; the agony the mother experiences rests upon the harm that the daughter has done to herself. Of course, in this case, God can always reunite the mother with her daughter in another life. But suppose that God should refuse to do this; suppose that he should refuse to do anything to reclaim the daughter and refuse to forgive her even on the condition of repentance. If he should thus permit the daughter to harm herself irreparably, then he would also permit irreparable harm to befall all of those, such as the mother, who love her; and if he should refuse to forgive the daughter, even as the mother would forgive her, then he would separate himself not only from the daughter, but from the mother as well. Nor would it make any difference if, instead of committing suicide, the daughter had committed murder or even if, like Ted Bundy and Jeff Dahmer, she had committed a series of brutal murders. When the mother of Ted Bundy declared, so agonizingly and yet so appropriately, her continuing love for her son who had become a monster, she illustrated how in harming himself her son had also harmed his own mother. She also illustrated this all-important point: that not even God can impart supreme joy to such a mother or vindicate his righteousness in permitting her to suffer so, unless his forgiveness can find a way to reclaim her son. More mysterious, perhaps, and therefore more difficult to appreciate is how God might vindicate his righteousness to the victims of a psychopathic killer or to, for example, the Jews who suffered in Nazi concentration camps. Does God really forgive even those guilty of the most monstrous crimes including genocide? Here two preliminary points are perhaps in order: First, we need not deny that giving the butchers a ‘taste of their own medicine’ may have a place in the divine scheme of things, particularly when nothing else is likely to get their attention. But as we 24 have already seen, we simply deceive ourselves if we think that punishment of a retributivist kind would either make up for such atrocities or justify God's decision to permit them in the first place. Such punishment might be a means to something that would vindicate God's righteousness, but it could hardly vindicate his righteousness in and of itself. Second, the view that God necessarily forgives even the most monstrous criminals will inevitably make the most sense to those who see their own solidarity with such criminals, to those who fully appreciate their own potential for acting in truly barbaric ways. Most of us have never had the power or the opportunity to act in such ways, and neither have we suffered from the illusion that we could get away with such actions. Having never experienced the particular historical circumstances that existed in Nazi Germany, for example, we deal with our own fears, not theirs; our own torments, not theirs; our own twisted ideologies, not theirs. Most of us probably have no idea of how we would act if suddenly thrust into a set of terrifying circumstances. The moral realist or legalist asks but one question: What has a person actually done? But God, according to most theistic religions, looks at the heart, and he presumably sees in those of us who have not committed atrocities many weaknesses and many selfish impulses upon which, because of good fortune perhaps, we have never acted. That, at least, seems to be a prominent theme of the New Testament. To those who congratulate themselves for never having committed adultery, Jesus declares that ‘every one who looks at a woman lustfully has already committed adultery with her in his heart’;20 and to those who congratulate themselves for never having committed murder, the letter of I John declares that ‘Any one who hates his brother is a murderer… ’.21 In the same spirit, a prophet might declare that God sees all of the arrogance and lust for power, all of the fear and bigotry, that lurks in our own hearts as well. My point is not that such atrocities as the Nazi's committed may have been 25 less heinous than we had thought; my point is that none of us should underestimate our own potential for acting in truly barbaric ways. Be all of that as it may, our question is this: How might God best vindicate his righteousness in the face of grossly unjust suffering? Insofar as we simply do not know why God has permitted certain horrors to occur in human history, we may find no answer to our question altogether adequate. But we can still exhibit an important advantage of our alternative picture. According to Augustine, God vindicates his righteousness by subjecting unrepentant souls to eternal torment; and though, as we have seen, such punishment does nothing to restore a just order, Augustine surely is right about this: At the very least, the ones responsible for terrible atrocities must learn a hard lesson; in particular, they must be made to appreciate the horror of their own actions. But the paradox is this: Only someone on the road to redemption, only a forgiven sinner, can fully appreciate the horror of even the most monstrous acts. So long as an Adolf Eichmann remains merely a monster, an irrational remnant of a person, nothing he might endure spitefully, like a tormented animal, will teach him the hard lesson we want him to learn. Do we not want him to reclaim enough of his humanity to admit that he was wrong and to appreciate why he was wrong? Do we not want his illusions stripped away, so he can stand naked before his Creator? Only when the light finally breaks into his darkened understanding, only when the divine forgiveness begins its work of transformation, will he begin to appreciate the meaning of his punishment and the true nature of his evil deeds; and then, of course, he will already be on the road to redemption. According to our alternative picture, therefore, a just order will never fully be restored until Adolph Eichmann comes to love his victims so tenderly that he would gladly suffer on their behalf even as they have already suffered on his behalf. 26 So the sum of the matter is this: If we suppose that God's moral nature is simple, we must also admit that his justice requires exactly the same thing his love requires: the absolute destruction of sin; it requires that sinners repent of any wrong they have done to others and that they be reconciled one to another. In the book of Acts, we thus find the Apostle Peter exhorting a crowd as follows: ‘Repent therefore, and turn again, that your sins may be blotted out, that times of refreshing may come from the presence of the Lord" (Acts 3:19— my emphasis). Anything less than that would represent a defeat not only of God's love, but of his justice as well. Whether real justice, God's justice, will finally triumph, whether God will ever achieve a final restitution of all things (Acts 3:21) or the reconciliation of all things (Colossians 1:20) is, of course, another matter. But it is hard to see how anything short of such restitution and such reconciliation could possibly qualify as a triumph of justice. 27 NOTES 1. Bk. III, 403-410. 2. In De Trinitate Augustine writes: ‘God is truly called in manifold ways, great, good, wise, blessed, true, and whatsoever other thing seems to be said of Him not unworthily: but his greatness is the same as His wisdom; for He is not great by bulk, but by power; and His goodness is the same as His wisdom and greatness, and His truth the same as all those things; and in Him it is not one thing to be blessed, and another to be great, or wise, or true, or good, or in a word to be Himself’ (VI, 7). Note that Augustine here identifies God's greatness, not with his love, but with his power, and he identifies his goodness with his greatness; hence he seems to reduce everything to mere power. It seems to me, however, that one can defend a doctrine of absolute simplicity and be faithful to the biblical witness only if one identifies God's power as the creative and transforming power of love. 3. See Augustine, Enchiridian, Chapter XXV. 4. City of God, Bk. XX, Chap. 1. 5. Ibid., Bk. XXI, Chaps. 2-10. 6. John Milton, Christian Doctrine reprinted in The Complete Prose Works of John Milton, Vol. VI, (New Haven and London: Yale University Press, 1973), p. 628. 7. Cur Deus Homo I, Chapter Eleven. 8. Ibid., Chapter Fourteen. 9. Ibid. 10. For a good popular treatment of this difficulty, see C. S. Lewis, ‘The Humanitarian Theory of Punishment’, in God in the Dock: Essays on Theology and Ethics (Grand Rapids: Eerdmans Publishing Company, 1973), pp 287-294. 11. Enchiridion, Chapter XIV, Section 50. 12. Institutes, Bk. II, Chapter I, Section 8. 13. Loraine Boettner, The Reformed Doctrine of Predestination (The Presbyterian and Reformed Publishing Company, 1968), p.63. 14. Cur Deus Homo, Chapter Twenty-one. 15. Ibid. 16. Ibid. 17. See Enchiridion, Chapter XIV, Section 48. 18. Herbert Morris, "Persons and Punishment," The Monist, 52, No. 4 (October, 1968), reprinted in Jeffrey G. Murphy, Punishment and Rehabilitation (Selmont: Wadsworth Publishing Co., 1973), p. 43. 19. Richard Swinburne, Responsibility and Atonement (Oxford: Clarendon Press, 1989), p. 107. 20. Matthew 5:28. 21. I John 3:15. 
work_t26tvrz66fhjhf7lylrn2g5ppm	----	480 480..480 review Injecting Illicit Drugs Richard Pates, Andrew McBride & Karin Arnold (eds) Oxford: Blackwell, 2005, »35.00 pb, 200 pp. ISBN: 1-4051-1360-X The use of illicit substances is a subject that generates considerable interest in both the general and medical media. The act of injecting is one of the core features of the ‘junkie’ in the minds of the general public, and has been popularised (and to some extent glamorised) by films such as Trainspotting. In the 1980s the association between injecting and the spread of HIV was the stimulus for increased interest in harm reduction strategies in the UK, and the impetus for an increase in funding for drug treatment services. Latterly, injecting has been discussed in the context of a rise in drug-related deaths, and there has been interest in providing injecting rooms as a harm reduction measure. Users of illicit substances have a complex relationship with injecting as a form of drug administration. There is huge variability between the prevalence of injecting within the UK itself, with about half of the heroin users in London utilising this route compared with about a fifth in Birmingham. The pathway to injecting is not a straightforward one for many users, and is influenced by a complex mix of cultural pressures, market forces, physical health and psychological factors. The latter includes the user’s self-perception or sense of engagement in the drug scene, and the process may require a desensitisation to the process of injecting. This interesting and varied book is therefore timely, particularly as the editors believe that it is ‘the first book ever compiled that focuses specifically on injecting drug use and the health conse- quences of this behaviour’. It gathers together the work of experts from a variety of backgrounds, and in doing so avoids presenting an overly medical focus on the subject. The book goes beyond the standard issues such as the spread of blood-borne viruses and the risk of over- dose, and highlights historical, ethno- graphic and sociological perspectives on injecting. It accepts that ‘injectors’ are a heterogeneous group, and brings out the unique aspects of particular groups such as women and those in prison. Practical information is distilled from a large litera- ture on safer injecting and individual harm reduction advice, and the issue of ‘needle fixation’ is comprehensively covered. The book ends with an interesting user perspective. It is a readable and informa- tive book that will benefit anyone with an interest in public health or the treatment of drug misuse problems. Ed Day Senior Lecturer and Honorary Consultant in Addiction Psychiatry, Department of Psychiatry, Queen Elizabeth Psychiatric Hospital, Edgbaston, Birmingham B15 2QZ, email: e.j.day@bham.ac.uk miscellany Medical Justice (http://www. medicaljustice.org.uk) is a network of ex-detainees, doctors and other experts which campaigns to protect the medical rights of asylum seekers, parti- cularly those in detention. Mental health problems, particularly depression and post-traumatic stress disorder, are extremely common in such people. Medical Justice needs psychiatrists to become involved with the organisation. This may involve assessing detainees and ex-detainees in order to provide court reports on their situation. In some cases, psychiatrists can also play a role in securing appropriate specialist care for detainees and other asylum seekers with severe mental health problems. If you are inter- ested in becoming involved with the work of Medical Justice, please contact Cornelius Katona (email: c.katona@kent.ac.uk). forthcoming events The British Neuropsychiatry Association (BNPA) would like to announce the 2007 BNPA meeting entitled Neuro- psychiatry and neuroscience, epilepsy, parkinson’s disease. The meeting will be held on 22^23 February 2007 at the Institute of Child Health in London. For further information please contact BNPA (tel/fax: 01621 84 3334; email: gwen.cutmore@lineone.net) or visit the website at http://www.bnpa.org.uk The International Society for the Psychological Treatments of the Schizo- phrenias and other Psychoses (ISPS UK Network) would like to announce the 2007 ISPS UK residential conference entitled Psychosis: experiencing understanding recovering. The confer- ence will take place on 26^27 March 2007 at the University of Bath. Keynote speakers are Peter Chadwick (UK), Johan Cullberg (Sweden), Douglas Gill (UK), Courtenay Harding (USA), Glynn Harrison (UK) and Douglas Turkington (UK). For further details please contact Annabel Thomas, ISPS UK Administrator, PO Box 707, Gerrards Cross, Bucks SL9 0XS (tel: 01494 580 101; email: isps@athomas99. freeserve.co.uk ) or visit the website at http://www.isps.org/uk Developmental traumatology ^ the hidden crisis in secure settings is the title of a national conference being held on Saturday 16 June 2007 at St Andrew’s Hospital, Northampton. The conference will highlight young people who are victims of physical and sexual violence in childhood who end up in prison and a variety of secure settings, and explore the emerging treatment options. Speakers include Professor Michael DeBellis, Director of the Healthy Childhood Brain Development and Developmental Trauma- tology Research Program at Duke Univer- sity, North Carolina. For further details, please contact Jo Nairn (tel: 01604 616537; email: jnairn@standrew.co.uk). The 2007 World Mental Health Congress of the World Federation for Mental Health will be held in Hong Kong, China on 19^23 August 2007. The congress theme is ‘Impact of culture on mental health: east meets west’ and keynote speakers are Professor Anthony Bateman, University College London (UK) and Professor Wen-ShingTseng, University of Hawaii (USA). For further details please contact Congress Secretariat, The Hong Kong Mental Health Conference Limited, 332 Nam Cheong Street, Kowloon, Hong Kong SAR, China (email: info@wmhc2007.com) or visit the website at http://www.wmhc2007.com Columns Review columns 480 
work_t433fq3ylvhvhl7l2brtui4vvi	----	Request unsuccessful. Incapsula incident ID: 482000390559904464-1460077366417164740 
work_t6jwjkscxjgbpoihb2v73gwssm	----	This is the author’s final, peer-reviewed manuscript as accepted for publication. The publisher-formatted version may be available through the publisher’s web site or your institution’s library. This item was retrieved from the K-State Research Exchange (K-REx), the institutional repository of Kansas State University. K-REx is available at http://krex.ksu.edu The other voice in the room: restorative justice facilitators’ constructions of justice Gregory D. Paul, Julia A. Dunlop How to cite this manuscript If you make reference to this version of the manuscript, use the following information: Paul, G. D., & Dunlop, J. A. (2014). The other voice in the room: Restorative justice facilitators’ constructions of justice. Retrieved from http://krex.ksu.edu Published Version Information Citation: Paul, G. D., & Dunlop, J. A. (2014). The other voice in the room: Restorative justice facilitators’ constructions of justice. Conflict Resolution Quarterly, 31(3), 257-283. Copyright: © Wiley Periodicals, Inc. and the Association for Conflict Resolution Digital Object Identifier (DOI): doi:10.1002/crq.21091 Publisher’s Link: http://onlinelibrary.wiley.com/doi/10.1002/crq.21091/pdf The Other Voice in the Room: Restorative Justice Facilitators’ Constructions of Justice Gregory D. Paul, Millersville University Julia A. Dunlop, Millersville University Abstract Restorative justice represents an approach to managing conflict initiated by a wrongdoing that focuses on restoring the participants materially, psychologically, and relationally. Restorative interventions usually involve facilitators who act as “experts” in helping the parties to manage their conflict restoratively. They also help participants to understand how restorative justice differs from traditional justice and what restorative justice looks like. However, we lack an understanding of how facilitators conceptualize justice in the first place. Drawing on interviews with facilitators, this study identifies facilitators’ justice constructions during victim-offender conferences. Together, these constructions constitute a multi-dimensional, multi-layered model of justice in victim-offender conferences. Offenses have a number of negative consequences for victims, offenders, and the community at large, including anger (Barclay, Skarlicki, & Pugh, 2005; Worthington, 2003; Worthington & Wade, 1999), avoidance (McCullough, Root, & Cohen, 2006; Worthington & Wade, 1999), and relational damage (Okimoto, Wenzel, & Feather, 2009; Zechmeister & Romero, 2002). Although the dominant approach in the United States is to manage these consequences legalistically (i.e., through the traditional justice system), a growing movement that emphasizes a restorative approach is occurring. At the heart of this approach is an assumption that crime begets inherently personal conflict among stakeholder groups (Armour & Umbreit, 2005; Wenzel, Okimoto, Feather, & Platow, 2008). It also assumes that the most constructive way to manage conflict is to bring interested stakeholders together to dialogue about the implications of the conflict (Borton, 2009). Thus, viewing wrongdoing from a restorative perspective involves privileging the dialogic management of social, emotional, and material dimensions of conflict initiated by a harmful act committed by one party against another. Although this approach ostensibly stands in contrast to the traditional justice paradigm (Armour & Umbreit, 2006; Braithwaite, 2002, 1999; Johnstone, 2002; Zehr, 2002), there are areas of commonality (Daly, 2002; Pavlich, 2005; Zernova, 2007). For example, both systems emphasize the importance of procedural justice through consistent application of rules as a way to heighten the parties’ sense of fairness (Bies & Shapiro, 1988; Tyler, 2006; Tyler & Lind, 1992; Wenzel, Okimoto, Feather, & Platow, 2008). This emphasis on procedures is evident in victim-offender conferences (VOCs) that bring parties together to manage the conflict. Helping to guide the parties’ interaction are facilitators, who act ostensibly as restorative justice “experts.” The little research that explores how facilitators enact justice in the context of VOCs typically positions them as “masters of ceremonies,” “hosts,” and “directors.” However, although their actions sometimes go unnoticed (Dignan et al., 2007; Umbreit et al., 2007), their influence on the interaction as the other voice in the room should not be understated, particularly given their role as “custodians of restorative justice values” (Dignan et al., 2007, 13). At the heart of the restorative approach is the core value of justice (Braithwaite & Strang, 2001). Although Western conceptualizations of justice tend to frame it as universalistic and rationalistic (Warnke, 1992), few people seem to be able to agree on what it means and looks like (Boulding, 1988; Vaandering, 2011). This lack of agreement likely stems from its contextual grounding as a social construct that influences and is influenced by individuals’ communication with one another. That is, justice seems better conceptualized as a situated social construct whose definition changes not only by person but also by situation (Frey, Pearce, Pollock, Artz, & Murphy, 1996; Warnke, 1992; Winslade 2005). Thus, VOCs represent sites where all participants (including facilitators) negotiate and enact their sense of distributive (i.e., outcome), procedural, and interpersonal justice as they communicate with one another. Facilitators can exert a particularly strong influence on this negotiation and enactment simply by virtue of their position. As such, their justice constructions can influence how participants enact and evaluate the outcomes, process, and interaction constituting VOCs. Thus, the focus of this paper is to explore restorative justice facilitators’ constructions of justice that influence dialogue patterns within VOCs. Specifically, we highlight how constructions of justice differ in terms of definitions of crime, approaches to accomplishing justice, and idealized outcomes of justice interventions. We argue that the framing of traditional and restorative systems as opposing systems is overly reductionist, and that both systems can be mapped onto a multi-dimensional, multi-layered construction of justice. In doing so, we aim to contribute to the extant literature on restorative justice in a few ways. First, we attempt to enhance scholars’ understanding of facilitators’ justice attitudes and constructs which shape the overall trajectory of VOCs. Second, identifying justice constructions provides a starting point for beginning to look at how parties socially construct fair processes and outcomes with one another. That is, we privilege the social nature of justice. Finally, we aim to problematize the assumption that facilitators are homogenous process managers by illustrating differences in justice constructions. The remainder of this manuscript provides an overview of traditional and restorative justice along with the place of facilitators in VOCs. After summarizing the methods used to gather data, this study describes and discusses the facilitators’ justice constructions. Managing Injustice A legalistic approach to managing harmdoing is generally characterized by a system of state-created and state-enforced rules and procedures, which are designed to promote rational analysis of case facts and due process to alleged offenders (Pavlich, 2005; Sitkin & Bies, 1994; Zehr, 2002; Warnke, 1992). If found guilty, offenders usually are punished to varying degrees by the state based on the premise that enacting justice involves repaying harm (from crime) with harm (from punishment) (Wenzel & Okimoto, 2010). At the heart of this approach is a desire to minimize the societal impact of harmdoing and to strengthen communities by dissuading others – including the offender – from engaging in the same unlawful activity (Zernova, 2007). Critics of this legalistic approach, however, argue that it fails to produce just processes and outcomes because it is inherently retributive (Braithwaite, 2002; Pavlich, 2005; Tyler, 2006; Wenzel & Okimoto, 2010; Wenzel et al., 2008; Zehr, 2002; Zernova, 2007). They argue that, whereas the restorative approach reduces recidivism and addresses the emotional consequences of harmdoing (de Beus & Rodriguez, 2007; Kuo, Longmire, & Cuvelier, 2010; Latimer, Dowden, & Muise, 2005; Rodriguez, 2007), the legalistic approach is associated with persistent anger among the parties (Braithwaite, 1989), failure to change attitudes of offenders (Wenzel & Okimoto, 2010), and lack of attention to the emotional dimension of crime (Wenzel et al., 2008). Pavlich (2005) summarizes the view of the traditional system from the vantage point of some restorative justice advocates as being “essentially retributive, punitive, violent, adversarial, rule- bound, formal (thus rigid and unresponsive), coercive, and guilt-centered” (27). Advocates of restorative justice have cast restoration as an alternative way for managing the consequences of crime that addresses these deficiencies and promotes “transformation,” “healing,” and “empowerment” (Braithwaite, 2002; Umbreit et al., 2007). At the heart of the restorative approach is the belief that involved parties should manage the conflicts themselves, thereby holding one another accountable. In this way, participants work together to define the harms and co-create ways to heal the wounds caused by those harms (Armour & Umbreit, 2005; Pavlich, 2005; Wenzel et al., 2008). This collaboration and co-creation, facilitated by third parties in practices such as VOCs, ideally enables the accomplishment of individual, relational, and societal healing (Braithwaite, 2002; Johnstone, 2002; Zehr, 2002). Facilitator Roles in Victim Offender Conferences Facilitators’ actions and approaches can vary depending on the goals of the intervention (Alexander, 2008; Donohue, 1991; Folger, Poole, & Stutman, 2007; Umbreit, 2001). The extant literature offers a number of recommendations for facilitating a “good” or “humanistic” VOC, beginning with pre-conference participant preparation and extending into the conference (Umbreit, 2001; Umbreit et al., 2007). During pre-conference meetings, facilitators should attempt to develop rapport with the parties, solicit and listen empathically to their stories, and inform them about what a VOC would look like. During the conference, they are expected to manage the tone of the meeting by trying to achieve conversational balance, respectful conversation, safe interaction, and conformity to the facilitator’s rules (Dignan et al., 2007; Johnstone, 2002; Presser & Hamilton, 2006; Rossner, 2011). They also should be willing to empower the participants to share their stories, influence one another, express their emotions, and work toward their ideal outcome (Johnstone, 2002; Morris, 2002; Pavlich, 2005; Umbreit et al., 2007). These recommendations are rooted in assumptions about conflict and justice that are at the heart of restorative justice and VOCs. In restorative justice, all individuals enter with justice orientations that shape their evaluation of and performance in VOCs (Alexander, 2008). For example, parties entering with a legalistic orientation and an assumption that conflicts are problems needing rational solutions may emphasize the importance of due process and equitable treatment. Thus, they may believe that conferences should imitate the very system from which they supposedly differ (Pavlich, 2005). Along with other associated values (i.e., religious values), justice orientations influence how parties interpret crime as well as how they define and enact justice (Stubbs, 2007). From this vantage point, justice is a socially-constructed, situational construct enacted by participants and influenced by contextual features such as interaction norms and crime characteristics. Thus, VOCs can be seen as sites where all parties, including facilitators, negotiate the meaning of justice through interaction (Winslade, 2005). As suggested by structuration theory (Giddens, 1984), parties may draw on multiple rules (i.e., “offenders should be punished”) and resources (i.e., assumptions about conflict and wrongdoing) as they interact in VOCs. Facilitators in particular may draw on both restorative and traditional orientations to guide the trajectory of VOCs, thereby problematizing what “justice” looks like and means across VOCs. Thus, it is important to understand how facilitators define what constitutes “justice,” leading us to pose the following research question: How do restorative justice facilitators define justice? Methods To investigate facilitators’ definitions of justice, we interviewed members of a local restorative justice organization in south-central Pennsylvania. The organization aims to encourage peacemaking by applying and teaching the values and tenets of restorative justice. When managing VOCs, the organization receives cases from the traditional court system in which individuals under the age of 18 have pled guilty to a “non-violent” crime such as vandalism, theft, and simple assault. The court either suggests or requires that person at least to meet with a facilitator from the organization as a condition of probation. The organization then assigns the case to a facilitator, who is responsible for preparing the parties for a VOC if it seems feasible and appropriate to all parties involved. Although the facilitator is given a general outline for how meetings should proceed by the organization, that person has the freedom to interact with the parties and structure VOCs in whatever ways he or she feels will best accomplish justice. The facilitator then reports the results of the case back to the organization, which forwards the results to the court system. Sample We engaged in purposive sampling to generate a sample that was representative of the organization’s demographics and experience. Working from a list sent to us by the organization, we laid out three clusters of potential participants. Each cluster reflected the organization’s gender make-up, average case experience, and year of initial training. To obtain our sample, we emailed individuals in the first cluster to ask for their participation. Seventeen out of 23 (73%) agreed to participate. After emails to other participants in the two remaining clusters to achieve a fairly close organizational representativeness, we achieved our sample of 20 participants. The sample consisted of 12 men and 8 women who had worked an average of 21.41 cases (ranging from 1 to 61) and had been involved with the organization as facilitators for an average of six years (ranging from 1997 to 2011). Eighteen participants were Caucasian whereas two were African-American. The majority of the participants (17) were currently employed full-time. Data Collection The first author, who had been involved with the organization as a volunteer facilitator and outside trainer for a little over one year prior to conducting data collection, conducted individual, semi-structured interviews with all of the participants. Because a handful of participants had known the interviewer previously as a trainer, he indicated that his goal was to learn about participants’ experiences and beliefs about justice. To try to minimize a demand effect, he made sure at the outset of each interview to indicate that, even though he was a volunteer trainer for the organization, the research was being done separate from the organization and that all responses would be confidential. Thus, we tried to address the potential complication of the interviewer’s organizational affiliation by approaching the interviews from a posture of interested learner mining the experiences of knowledgeable participants. The interviews focused on two main areas: participants’ backgrounds as facilitators and their experiences with facilitating VOCs. The first section explored participants’ background and experience with restorative justice in general. The second section focused on specific cases they facilitated, enabling participants to discuss their roles as facilitators, their ideal case outcomes, their beliefs regarding both restorative and traditional justice, and their perceptions of their influence on their cases. All interviews were audio-recorded and transcribed, generating 319 pages of single-spaced, typed transcripts from the 24.73 hours of discussion. Along with these interviews, we analyzed the organization’s training manual that is distributed to all volunteer facilitators. The manual describes restorative justice and gives guidelines for facilitators to follow when handling cases. Volunteers undergo 26 hours of training in which they read through the manual, engage in role play, and learn from guest speakers on various topics, such as adolescent brain development and the probation process. Data Analysis Analyzing qualitative data involves trying to make sense of and interpret participants’ responses, in part by searching for themes in the data (Lindlof & Taylor, 2011). Our goal in particular was to make sense out of the way facilitators defined and enacted justice during VOCs. Adding another dimension to our discovery were our own unique histories as crime victims. These experiences initially led to desires for the harmdoers to be punished, a tension between confronting and / or avoiding them, and eventually a desire to understand why they had committed their crimes. These experiences helped us to reflect on participants’ experiences in managing VOCs. Our analysis process began with each of us individually reading the transcripts, making initial notes of ideas that stood out to us or seemed important. During this time, we discussed themes and patterns apparent to us in the data and compared our ideas together. This initial step helped to sensitize us to the texts and also to reflect on our own observations and experiences pertaining to justice and crime. Also, during the course of our data analysis, the first author worked as a facilitator for a case and was able to hold a VOC. Our personal experiences provided deeper insights and richness to our readings of the transcripts. As we read the transcripts and identified initial themes, our next step was to code the data in terms of the categories of a) beliefs about crime, b) participant roles, c) desired justice process, and d) desired justice outcomes. These categories were borrowed from extant restorative justice literature, providing an etic approach to coding and categorization (Lindlof & Taylor, 2011). We focused specifically on facilitators’ description of the outcomes of their cases as well as their evaluation of those outcomes. During this more intensive time of coding, we looked for differences within the four categories described above by being sensitive to key terms such as “healing” and “humanity.” We created several visual maps of categories’ relationships with one another. Through this visual mapping, we proceeded to explore the relationships among and within the categories. In the end, a dynamic picture of justice emerged, as discussed below. Results Participants often contrasted traditional and restorative justice as distinct and opposite approaches (i.e., traditional versus restorative justice). Yet, what emerged from our readings of their descriptions of ideal justice outcomes and their experiences was more akin to a justice model with three layers – justice as offender punishment, justice as personal repair, and justice as relational rebalancing. Another dimension – justice as human growth – cut across these three layers. Facilitators indicated that, whereas the traditional approach through the court system facilitated the accomplishment of the most basic level of justice (offender punishment), VOCs enabled participants to satisfy individual and relational needs while possibly achieving human growth. Interwoven through these justice levels were different descriptions of crime, justice process, and justice results (see Table 1). Justice as Offender Punishment For participants, the punishment of offenders for their crimes represents the least satisfactory form of justice. At this level, justice is accomplished by levying a punishment on the offender for actions committed contrary to the laws of the state. Such punishment is intended to exact pain on the offender, thereby holding the offender accountable for the crime. Table 1 Differences Among Justice Levels Justice As… Crime As… Accomplished Through… Results In… Offender Punishment Violation of state law * Offender punishment *Increased safety *Story completion * Accountability Personal Repair Violation of people * Communicating directly * Story-telling * Taking responsibility * Apologizing * Personal healing * Sense of closure Relational Rebalance Violation of relationship * Communicating honestly * Collaborating * Relational peace * Changed perspective * Increased trust Human Growth Individual and Relationship Growth Inhibitor * Understanding long- term consequences * Appreciating possibilities * Personal transformation * Reduced recidivism Crime from this standpoint was a violation of state law committed by an individual. Angela (a pseudonym, as with all other names used here) articulated this viewpoint, indicating that Americans are “so individualistic-thinking that it’s hard for us to think in terms of system and community, and to value all of that. ‘Yes, you did this crime. You need to pay. It’s not my responsibility. You need to pay.’” Ashley suggested that this individualist approach was evident in the court system “doling out punishment for an action and not worrying about what happens to the person.” At its roots, this justice was grounded in an individualist orientation toward crime. Because it was an individual violation of state law, crimes needed to be dealt with using an individual-oriented mechanism such as the traditional justice system. They most often described the traditional justice system as feeding a traditional view of crime as a problem in need of a solution. Viewing crime as an individual violation of state law was associated with viewing justice as an individualist, rational, and impersonal approach to solving the problem of crime. From this vantage point, justice was best handled through experts and state authorities, meaning that victims or others played little to no role in the justice process. Facilitators generally held that punishing offenders was designed to make communities safer and hold offenders accountable. Several participants observed that traditional and restorative justice shared these goals even though they went about it differently. Ashley argued that the traditional justice system “wants to calm everybody’s fears and put someone in prison and say, ‘We’ve got the person. Everything’s taken care of.’” Imprisonment removed the instigator of the unsafe feelings in the community. Additionally, participants indicated that the systems dovetailed in their emphasis on accountability, though they drew sharp distinctions between the forms of accountability (as “punishment” or “restitution”). Whereas the traditional approach enacted accountability through punishment, the restorative justice approach did so through restitution from the victim. Robert, for example, stated, “I do think there’s a real difference between using words like accountability and punishment…We [Restorative justice facilitators] are gonna try to support you while we hold you accountable for what you did…rather than giving X amount of months on parole or probation.” Ashley acknowledged that the distinction, however, was in the eye of the beholder, stating that offenders “probably think it [restitution] is punishment. But it’s accountability.” Regardless, justice involved making sure that offenders were accountable for their actions. Facilitators routinely criticized the traditional justice approach as ignoring victims, levying punishments unassociated with the crimes, and lacking in compassion and contextualization. Of particular concern was that victims had little role in the traditional justice system, even if offenders wanted to apologize to them. Walt indicated that he “had a number of kids say, ‘I really wanted to tell the other person I’m sorry for what I did, but I couldn’t. The lawyer said no talking.’” Colin indicated that the traditional approach differed from the restorative approach in that “the state is looking out for the interests of the justice system, for the interests of the state as a whole, whereas, with restorative justice, we’re really concerned with the victim, for the person who has been harmed through whatever it is that occurred. That’s a very fundamental difference.” In essence, victims at this level of justice were of tangential concern, with the primary focus being on the state and its management of the offender. Additionally, facilitators critiqued the traditional system as lacking compassion and contextualization. One participant related with disgust a story of an older man who was sentenced to prison assisting in the suicide of his wife. The participant indicated that, as the man told the judge that he was helping her, “[the judge] says, ‘There is no compassion in the law.’ He said it! In words! There’s something wrong with that.” Other participants noted the “political” and “inflexible” nature of the system that focused on punishing the offender without considering the histories of the offenders and the individual circumstances of the crimes. Facilitators also critiqued the traditional system as levying punishments that were unassociated with the crimes committed and that were more harmful than helpful. This harmfulness and disconnection were what separated “punishment” from “restitution.” Kristy noted that, whereas “punishment comes through the legal system,… restitution is paying back for what you’ve done.” Punishment was associated with “fear” and “being tagged,” which was “hurtful” and “not redeemable.” Additionally, this punishment “really isn’t related in any kind of way to what the offender really did… Ya know, serving six months on probation, getting’ dragged in for a urine analysis on a random basis by your juvenile PO [probation officer] – that doesn’t necessarily have a lot of connection.” Punishment, then, was designed to hurt offenders to “pay them back” for their crime. Essentially, justice as offender punishment involved punishing offenders for their crimes against the state. Facilitators argued that this level of justice was the focus of the traditional approach, which they believed to be insufficient. For them, whereas “the goal of the legal system is to find somebody innocent or guilty. … With restorative justice, it’s about the two parties coming together and hopefully coming up with a resolution to address the harm.” The focus on harm set justice as offender punishment from justice as personal repair. Justice as Personal Repair The organization’s training documents capture the transition from offender punishment to personal repair by reframing the core question of justice from “what crime was committed” to “what harm was done.” This reframing attempts to focus attention on repairing personal harms suffered as a result of the crime. Personal repair refers to the healing of individual harms suffered primarily by the victim via restitution given by the offender, who is held accountable for his / her actions. This level of justice was characterized by a relatively mechanical approach by the parties to VOCs which attempted to address individual (rather than relational) problems. Underlying this justice level was an assumption that crime was less a violation of a law (as with justice as offender punishment) than a violation of a person. One participant related a story of his own experience as a victim of a burglary, saying that “the impact was amazing, ‘cause [my] kids wouldn’t go outside and play anymore, and we live in the woods, with leaves on the trees and stuff. They felt the bad men were hiding in the woods watching them.” Thus, for justice to be restored, it needed to address the personal harm created through the violation. Three processes for addressing personal harm were apparent: communicating directly with each other, taking responsibility for one’s role, and offering emotional and material restitution. Walt described a VOC, saying, “You are facing the person you hurt, and you’re talking it through with them and telling them, ‘You know, I made a mistake, I’m sorry.’” Liz contrasted this experience with the traditional justice experience of victims, whom she described as likely being more skeptical of the offender because there was no direct communication between the two of them. Facilitators felt that direct communication, encouraged by their focus on following process guidelines, helped the parties to “put a face” to the harm, resulting in “some kind of empathy for each other” and “an opportunity to feel and understand how this impacted the victim and their families and their friends.” Additionally, facilitators spoke frequently about the need for the offenders to take responsibility for their behavior. Phil told the story of an offender’s mother suggesting that her son bake a cake for the victim by himself because he was too young to be able to offer monetary restitution. Other facilitators spoke of cases in which offenders accepted responsibility for their behavior in the presence of their victims. Facilitators encouraged offenders to take responsibility by asking probing questions that helped offenders to put themselves in their victims’ shoes. This taking of responsibility was associated, in turn, with apologies on the part of offenders. All facilitators discussed their desire to see offenders apologize and offer restitution for their actions. James indicated that “the best case would be the kid who’s harmed somebody looking the adult in the eye and saying ‘I screwed up and I’m really remorseful for that’… without the prompting of the facilitator.” The importance of apologizing was equaled by the importance of offering restitution. Lillian indicated that “it’s good for the offender sort of to have the opportunity to make things right and to talk about what they’ve done wrong.” In short, when monetary restitution was needed, participants hoped that offenders would facilitate personal repair by offering both apologies and restitution. A few facilitators indicated that they would facilitate the negotiation of restitution if they felt the parties were having difficulty. There were three desired results associated with justice as personal repair: healing, story completion, and closure. The ideal result of restitution was the accomplishment of “healing” and “wholeness” for victims and offenders. Gary, for example, indicated that he was excited to “see the release that happened through that sharing and just see those seeds of healing start to get planted.” This healing was also for offenders. Lillian noted that “restorative justice is just really about how can we make both parties whole again from that experience?” Although the majority of facilitators talked about healing in terms of victims, some also talked about offenders’ need for healing, even though, as Chris noted, such healing looked different than it did for victims. Along with healing through apologies and restitution, the ability of victims to be able to share their stories was also a valued product of the restorative justice process. Ashley noted that “it’s very complicated the way people remember something happening. It’s like two different stories.” Colin talked about the importance of victims being able “to impart to the person or the persons who offended me the impact of their actions or maybe lack of actions.” As the parties shared their stories, they began to see the “total picture,” which in turn resulted in “a healing quality” of VOCs. Facilitators frequently spoke about the importance of encouraging the sharing of stories and listening to those stories empathically, so as to build relationships with the parties. As a result of the apologies, restitution, and experience-sharing, offenders and victims tended to experience “closure” and “softening.” Such softening did not suggest relational reconciliation, but rather a belief that they would not be harmed by one another in the future. Peter talked about the tendency for the parties to “walk away feeling good, about the situation, but not necessarily re-establishing a relationship.” These good feelings were precipitated by the belief that the other party would not harm them. Instead, the parties came to believe that “the victim’s a human being and the offender is a human being. And they’re not vicious – they shouldn’t be afraid of them anymore… It’s closure.” Only a few facilitators talked about forgiveness by the victim, though the practice of forgiveness was linked strongly to self-healing. In all, justice as personal repair referred to individual parties moving beyond the personal harm of the crime and experiencing “healing” and “closure.” Associated with these outcomes were direct communication, taking responsibility, and offering apologies and restitution. However, some facilitators indicated that VOCs that accomplished this level of justice tended to be somewhat mechanical and impersonal. Lillian described it as simply “going through the motions,” and Liz indicated that “there’s [sic] definitely those cases that are more restorative than others.” Facilitators spoke about cases that left them “digging through sand” while “panning for gold.” The responses suggested the existence of different degrees of restorative justice. The accomplishment of relational rebalancing was one way in which some cases became “more restorative than others.” Justice as Relational Rebalance For some facilitators, individual repair was but part of the goal of restorative justice. As the organization’s handbook indicated, after the parties discuss the harm that was done and the restitution needed, they are to talk about “what’s next,” i.e., building up trust for the future. Angela asserted that “restorative justice is about the people…Yeah, there’s money, there’s [sic] those kinds of things that need to be dealt with. But restorative justice moves it beyond that…It embraces the relationships.” In this vein, relational rebalance refers to the belief that justice involves the (re)creation of relationship peace among victims, offenders, and involved communities. Rebalancing meant that the relationship among the parties was at a satisfactory, even if not final, place at the conclusion of a VOC. At the heart of this justice level was a view of crime as a relational barrier between the offender and his / her victim and community. James argued that “violence fragments, it separates, it isolates, it alienates that which has been cohesive.” A few participants likened community to a body, with all members of the body being interconnected and interdependent. Sam indicated that “human beings need to live in harmony with each other, need to care for each other, need to help each other when help is needed.” Coming from this assumption, justice involved not simply repairing an individual body part but also rebalancing the relationships by breaking down interpersonal barriers already softened by apologies and restitution. Recalling one of her cases, Liz talked about how meeting helped a victim and offender “truly break down some of those barriers and walls.” Karen also related a story in which the victim, offenders, and the victim’s grandmother were hugging at the end, commenting that she was excited that “they were developing a relationship. You felt like a friendship was starting.” Even beyond the victim-offender relationship, facilitators commented that the community- offender relationship was rebalanced. Robert advanced this idea, saying that offenders “been sorta [sic] tearing themselves out of the fabric of the community for a long time before they ever got incarcerated.” Justice as relational rebalancing, then, referred to breaking down barriers separating offenders from both the victim and the larger community. There were several results associated with this barrier removal. Most prominent for facilitators was the parties’ experience of relational peace and harmony. This was most apparent in displays of friendship, such as shaking hands, talking in a friendly manner with one another, and hugging. Ashley talked about “hoping for a final meeting where everyone sits down, tells their story. I would like handshakes and forgiveness at the end.” Chris said he was touched by the “real good experience” of victims and offenders saying goodnight to each other after a tense start to their meeting. Phil talked about “people standing up and shaking hands and wishing each other well.” Stacey said she was motivated by the peace restored through restorative justice that “it makes me want to excel [sic] the lighter side over the darker side [of traditional justice].” A handful of facilitators, though, cautioned that facilitators’ primary responsibilities were not about making people friends or ensuring that they maintained a relationship after the conference. Angela, for example, said that “it doesn’t mean they have to be friends. They may not have known each other, and they may not know each other beyond that.” Sam likewise expressed hope that facilitators would not “tell me, ‘Okay, now we’re coming together and one of the agendas is we want to make sure you guys learn to trust each other again.’ No, that’s not my job to tell anybody that.” Ashley indicated that relationship rebalancing depended on the parties’ relationship prior to the crime. Hence, although some facilitators expressed a desire to see reconciliation occur, others believed that such reconciliation may be inappropriate (thereby critiquing the organization’s identity as a “victim offender reconciliation program”). Associated with relational peace and harmony was a changed perception of one another. Liz indicated that, for victims of crime, “all the fears and anger and everything kind of balloons into this monster image of the other person.” However, “when you have an opportunity to sit down and talk to someone,” according to Kristy, “you really get to the depth of that person, their past, the situation, and it’s like ‘Wow, there is a lot more to this than what the newspaper reported.’” Meeting helped the parties to re-envision one another, particularly changing the victim’s view of the offender. Re-envisioning and rebalancing were associated with increased trust. Gary stated that “the seeds of building trust for the future are planted in whatever that looks like, and that can take any shape.” Ashley talked about the existence of “a lot of trust and gentleman’s agreement” behind parties’ conference agreement. The organization, likewise, called the final phase of the VOC “building trust for the future,” in which the parties promise not to retaliate against one another. Such trust was associated with honest communication, or what Chris labeled as “coming into the light with respect and honesty and effective communication.” This honesty entailed sharing tangible and emotional memories of the event. Liz recalled wanting to bring food to a VOC to celebrate the “authentic emotion expressed and tears” by the parties. Colin contrasted this with the “very sterile state” of the traditional system. Feeding this honesty was a sense of collaboration between the parties. Robert described “this sort of alliance” that occurred between an adult victim and a youth offender as “sort of helping the kid along.” Joy talked about her desire to “get them to connect with each other and to resolve this one problem.” Sam and Angela likewise discussed their desire for victims to work with offenders by holding them accountable for their restitution. Each of these characteristics was associated with several facilitator practices, many of which were identified in the section above. These practices include listening, (re)framing the offense, relinquishing control, asking probing questions, and empathizing. By asking leading questions (especially of the offenders), facilitators encouraged the parties to empathize with one another. Such empathy facilitated the offering of forgiveness, which in turn facilitated relationship rebalancing (McCullough et al., 1998). Facilitators also reported that they needed to relinquish control of the meetings (at the same time as they managed the process) so that participants were able to work through any relationship harms occurring from the crime. Justice as relational rebalance, then, involved a constellation of consequences that included trust, re-visioning of the other, peace, and the breaking down of barriers. These consequences were facilitated by honest communication and a sense of collaboration between the parties. Importantly, however, justice as relational rebalancing did not mandate the continuation of a future relationship between the parties (i.e., “reconciliation”). Instead, the characteristics of “rebalancing” were crafted by the parties jointly through their dialogue. Indeed, facilitators indicated that relational peace took time to instill. This temporal development of peace also pointed to the final level of justice that occurred over time: human growth. Justice as Human Growth Speaking of a case in which an offender was almost too fearful to go through with meeting his victim, Liz commented that the offender, after having followed through with the VOC, “found that by doing what he was afraid of, he could end up in a positive note. And I think it gave him some confidence in there that he wouldn’t have had otherwise.” Such growth, although not as frequently mentioned as outcomes of “peace” and “healing,” was apparent in a handful of interviews. Justice as human growth refers to the belief that justice is an inherently humanistic accomplishment that helps people mature to become the best of who they are both emotionally and morally. However, unlike the other three justice levels which built on top of each other, human growth was a justice dimension that cut across all three levels. That is, participants – victims, offenders, and facilitators – could experience varying levels of growth in all three levels. Whereas facilitators perceived the least amount of growth through offender punishment, they felt that restorative justice offered the highest potential for human growth by facilitating the maturation process and seeing the full scope of harm. As opposed to seeing crime as a violation of law or of people and their relationships, justice as human growth framed crime as an impediment to people’s life progress. That is, the other justice levels were associated with a “deficit” view of crime (i.e., something that produced negative returns) whereas the human growth dimension was associated with a more neutralist view of crime (i.e., something that inhibited positive returns). In this way, crime was a decision, whether informed or uninformed, made by a person that interrupted her / his journey through adolescence. As such, youth who were processed through the traditional justice system faced a future that was sent “off track” as the result of that decision and action. At the heart of this justice belief were two assumptions. First was the belief that growth was a human characteristic. Sam talked about his desire to “use that [offense] as an opportunity to grow” and “transform the mistake into a positive.” All participants, but particularly offenders, had the potential to grow through dialoguing with one another. Second was the belief that people were not defined by their crime. People, instead, were “fragile vessels” who “want to do what’s right.” Facilitators argued that people who had committed a crime could change and should not be forever defined by the act. From this perspective, offenders were not defined by the harm they had caused nor were they always to be seen as harmdoers. Instead, facilitators hoped that the parties were able to experience transformation and maturation. Sam talked about transformation as helping offenders think through “‘what I have really learned a lot from this and I can be a better person going forward than I was before.’ That would be a true transformation if parties are able to say that at the end.” This thought process was tied in with maturation and growth, particularly for the offender. Gary, for example, said that offenders “are gonna grow through this experience. They are moving on to adulthood and that means taking responsibilities for their own lives and their own actions.” Peter related a story in which a victim asked that his restitution be that the offender go with him to a flower shop “and we’ll buy a lot of flowers and we will then deliver them to all the widows that I know. Because I want him to see what it means to make somebody happy. I think this will really help him to see that kind of happiness of something that he has done.” Facilitators, then, were concerned about the emotional and moral growth of the parties. In line with this focus on maturation was also a focus on deterring the offender from committing future crimes. From this view, offenders will have matured enough to abstain from future criminal acts. George, for example, highlighted an example of a youth offender who stated that he was planning on pursuing a career in police work. James likewise said that VOCs “get a young person to really reflect on their life and say, ‘Wow, okay, I made a mistake. I took responsibility for it.’ And it begins a new pattern of operating.” Similarly, Angela said her “hope for the offenders would be…that they really have a sense that they have a second chance.” This second chance also separated restorative justice from traditional justice in the eyes of some facilitators. Namely, whereas traditional justice left a type of “scarlet letter” on the offender, restorative justice facilitated human growth through socialization and reintegration. Ashley commented that “once a prisoner, once a convict, whatever, that reintegration into society is ridiculously hard. I don’t know what we expect people to do. Just go away and never come back? That’s not fair.” Robert also talked about the goal of restorative justice to “fix the offender, get ‘em up to speed, hook him up with work…, trying to make it okay with the community having the other guy coming back in.” This reintegration, according to Stacey, enabled them to “create a better experience with the next person,” thus helping the community. Facilitating this moral and emotional growth were two processes: empowering the offender to accept responsibility and helping the parties to understand the consequences of their actions. Empowerment typically came through empathic and active listening by all parties (including facilitators). The organization’s training manual encouraged facilitators to “suspend judgment of the speaker, their emotions and their experiences” and to avoid “interrupting, offering advice, giving advice, [or] bringing up similar feelings or problems from their own experiences.” Facilitators helped the parties understand action consequences by asking probing questions and encouraging the parties to interact with one another. For example, the organization’s manual encouraged facilitators to paraphrase and validate participants’ experiences. Essentially, facilitators emphasized the importance of both process management and relationship development so that the parties could grow from their experiences. Thus, justice as human growth was focused on helping the parties, though primarily the offender, to experience moral and emotional growth through the sharing of experiences and the reframing of the harmful event. This growth facilitated their reintegration into their communities and helped them to make the most of their second chance. Justice as human growth, while at once an intensely personal experience, was also an inherently communal event. Discussion Justice is a complex construct that is situated in a variety of personal, social, and cultural contexts (Winslade, 2005). VOCs are unique sites where people bring different justice definitions and work toward what they view as a just outcome and process (Shapland et al., 2006). Yet, not all VOCs are similar in their processes and outcomes (Umbreit, 2001). From the standpoint of VOC facilitators, justice interventions – from courtroom trials to VOCs – vary depending on a) the level of justice achieved and b) the experience of human growth (see Figure 1). The outermost layer – offender punishment – was the most superficial enactment of justice. Rebalancing of relationships, coupled with human growth, represented the core ideal of justice. Figure 1 Layered Model of Justice The idea of a layered justice model draws on principles of social penetration theory (Altman & Taylor, 1973) to explain how parties socially accomplish justice in VOCs. Social penetration theory states that relationship depth increases along with self-disclosure and depends on the costs and benefits associated with maintaining the relationship (Altman & Taylor, 1973; Chen & Nakazawa, 2009). Applying social penetration theory concepts to the layered justice model presented here suggests a number of factors that could influence the depth of justice achieved. Prior to entering into a VOC, offenders pass through the initial layer of punishment through the court system. However, they may not necessarily progress to a deeper layer from there. Additionally, even if they do participate in a VOC, interventions vary in terms of the outcomes accomplished, ranging from an agreement for restitution to reconciliation. Finally, across each intervention, there is the potential for human growth and maturation. Justice as Human Growth Justice as Offender Punishment Justice as Personal Repair Justice as Relational Rebalance There are a number of factors and practices that influence how deeply interventions go through the justice layers and the level of growth participants’ experience. Self-disclosure is a key facet of VOCs as the parties share their stories with one another. At the outer level of justice, the parties disclose little, if any, information to one another because their interactions are regulated by a system that promotes competition over collaboration and individualism over connection (Morris, 2002). As such, they experience little relational and individual growth, which supports assertions that punishment (the outermost layer) is associated more with control than support (Wachtel & McCold, 2001). However, as parties share their experiences with each other, they may experience personal healing, the (re)establishment of relationship, and a renewed sense of possibility. For example, reintegrative shaming of offenders may enable them to understand the magnitude of the harms they have caused and thus be less likely to recidivate (Ahmed & Braithwaite, 2006; Morrison, 2006; Tyler, 2006; Wachtel & McCold, 2001). Along with self-disclosure, breadth of revelation – sharing about topics not related to the crime – within VOCs could impact justice depth. For example, in the courtroom setting, participants share little if any information, and what little they may talk about generally is limited to a narrow range of topics. However, in VOCs where participants can bring up more issues, they are able to share not only their experience with the crime, but also how it impacted their family, their work, and their neighbors. They could also draw connections to their past, particularly if they have been victimized by crime before. Discussing a wider range of issues may facilitate deeper experiences of justice and more human growth. However, the model attempts to account for the possibility that growth can occur at differing levels regardless of the level of justice reached. Thus, rather than saying that significant growth occurs more at one level rather than another, it leaves open the possibility that situational and personal factors – such as punishment received, offense severity, and pre-offense closeness – could influence growth. Shaping the breadth and depth of self-disclosure are two factors that span the justice layers: accountability and concern for relationships. Both the traditional and restorative paradigms are concerned about promoting accountability. Yet, they differ on how they define accountability. Whereas justice as offender punishment relies on a negative definition of accountability (as punishment), personal repair and relational rebalance reflect principles of positive accountability by emphasizing understanding through restitution. Moving from offender punishment to other justice layers, then, requires a redefinition of accountability. Additionally, the emphasis on relationship repair grows as participants move closer to the inner layer of justice. Traditional interventions, accomplishing justice as offender punishment, tend to de- emphasize the importance of repairing the victim-offender relationship (Zehr, 2002). Restorative interventions, in turn, are designed to accomplish relationship repair, facilitated in part by characteristics of forgiveness, apology, restitution, empathic listening, and probing questions that signal interest in the other (Armour & Umbreit, 2006; Morris, 2002; Presser & Hamilton, 2006; Wenzel et al., 2008; Zehr, 2002). The degree of repair changes depending on the extent to which such practices communicate concern for the other person. As such, when facilitators encourage victims and offenders to apologize, request or grant forgiveness, “share their story,” ask follow- up questions, and listen empathically, they are implicitly communicating their ideal justice accomplishment of relational rebalance characterized by extensive human growth. Inherent in this justice model are several tensions that occur within and across the layers. These tensions exist between such interests as mercy and punishment, autonomy and connection, and openness and closedness (Waldron & Kelley, 2008). For facilitators, the traditional accomplishment of offender punishment is characterized by punishment, autonomy, and closedness whereas mercy, connection, and openness are more likely with the restorative accomplishment of relational rebalance. Justice interventions, whether traditional or restorative, can vary along each of these dimensions. For example, offenders may initially embrace autonomy and closedness in court trials by disclosing little and offering a perfunctory apology. They may then choose to be more open in VOCs by disclosing their story in greater detail and offering a more heartfelt apology, particularly if facilitators encourage them during pre- conference meetings to apologize and engage greater self-disclosure to victims. If victims reciprocate openness and connection, the participants may reach a deeper justice layer together. Overall, this model depicts the relationship between the traditional and restorative paradigms as being interdependent, with the accomplishment of one layer possibly facilitating the accomplishment of a deeper layer (Pavlich, 2005; Zernova, 2007). Punishment by the traditional court system may facilitate personal repair in the form of apologies and restitution during a VOC, given that questions about the guilt or innocence of the person accused of the crime would have been answered by a court system that has institutional legitimacy. Personal repair, in turn, can help people engage in relationship rebalance if they so choose. If parties begin to feel “burned” in a VOC, they may pull back to a different justice level (i.e., from relational rebalance to personal repair or out of a VOC altogether), suggesting that justice is a dynamic accomplishment negotiated by the parties (Warnke, 1992; Wunsttin, 2001). As such, justice as offender punishment achieved through a traditional intervention may facilitate reaching deeper justice layers through a restorative VOC by accomplishing an initial baseline of justice through punishment of the offender; establishing the importance of following process in justice interventions; and (in the eyes of facilitators) acting as a foil for restorative initiatives in terms of processes, interactions, and outcomes. Implications This study has several implications for theory, research, and practice. On a theoretical level, this study calls attention to the inherently social and contextual nature of justice. The value of justice exists within a larger constellation of values (Rokeach, 1973; Schwartz, & Bilsky, 1987). As individuals interact, their values are socially (re)constructed, leading to a sense of justice as a negotiated morality (Waldron & Kelley, 2008). Given this contextual nature of justice, we should re-examine the relationship between traditional and restorative justice. We reject the idea that they are polar opposites, instead embracing the idea that they provide different structures for people to work out their ideas of justice. A more nuanced approach that identifies more than one continuum (i.e., justice – mercy) could tease out their relationship. The results of this study suggest that researchers take care to explore participants’ desired outcomes when assessing the effectiveness of restorative justice initiatives (Rossner, 2011). For example, recidivism rate may be but one dimension of justice effectiveness, which not all participants may feel is important. This is particularly important when investigating victim, offender, and facilitator experiences during VOCs. Additionally, this research suggests the need to explore further the language used by facilitators during their training sessions and VOCs. Researchers also can explore the offense characteristics that influence accomplishment of a particular justice level. For example, higher offense severity may diminish likelihood of forgiveness and reconciliation because of high levels of interpersonal stress and low levels of self-disclosure and empathy (Kelley & Waldron, 2005; McCullough et al., 1998). This study also has implications for practice, particularly relating to the training of facilitators and the portrayal of restorative justice to local communities. Facilitators must be keenly aware of their own justice expectations and how their pasts have shaped their expectations. Facilitators also must be cognizant of how their practices during preparatory meetings and conferences implicitly suggest their desired outcomes. Along with this, facilitators and staff persons who manage restorative justice programs must be sensitive to the language they use to sell their programs. Acknowledging the different tiers of justice can help as they describe the similarities and differences with regard to their programs and the traditional justice system. Limitations and Future Directions Of course, these results must be taken in context. The findings from this study emerge from interviews with participants from one organization that seems at least modestly influenced by the strong Mennonite presence in its area. The surrounding cultural norms and beliefs may make the responses unique to this area. Additionally, the standing of the interviewer, despite attempts to control for its influence, may have impacted participants’ responses. Finally, this study looked only at facilitators’ constructions of justice. For a fuller picture, future research can investigate not only victim and offender constructions as well, but also how they are enacted in VOC settings. Additionally, research can continue to investigate the relationships among the justice layers, exploring what factors motivate the enactment of the various justice types. Finally, research can explore how these justice ideals are associated with particular practices. Conclusion Facilitators play a key role in shaping how justice is enacted and accomplished as victims and offenders talk through their experiences. This study suggests the existence of three justice layers along with varying potential for human growth. Given this, rather than holding restorative justice up as a type of justice panacea, we should approach it as one system through which parties can negotiate the look of justice. In doing so, we give credit not to restorative justice, but rather to the people who are strong and brave enough to go through what can be difficult and sensitive program to seek restitution, experience healing, rebalance relationships, and / or experience growth and maturity. References Ahmed, E., and V. Braithwaite. 2006. “Forgiveness, Reconciliation, and Shame: Three Key Variables in Reducing School Bullying.” Journal of Social Issues 62 (2): 347-370. Alexander, N. 2008. “The Mediation Metamodel: Understanding Practice.” Conflict Resolution Quarterly 26 (1): 97 – 123. Altman, I., and D. A. Taylor. 1973. Social Penetration: The Development of Interpersonal Relationships. New York: Irvington. Armour, M. P., and M. S. Umbreit. 2006. “Victim Forgiveness in Restorative Justice Dialogue.” Victims and Offenders 1 (2): 123 – 140. Armour, M. P., and M. S. Umbreit. 2005. “The Paradox of Forgiveness in Restorative Justice.” In Handbook of Forgiveness, edited by E. L. Worthington. New York: Taylor and Francis. Barclay, L. J., D. P. Skarlicki, and S. D. Pugh. (2005). “Exploring the Role of Emotions in Injustice Perceptions and Retaliation.” Journal of Applied Psychology 90 (4): 629 – 643. Bies, R. J., and D. L. Shapiro. 1988. “Voice and Justification: Their Influence on Procedural Fairness Judgments.” Academy of Management Journal 31 (3): 676-685. Borton, I. M. 2009. “Effects of Race, Sex, and Victims’ Reasons for Victim-Offender Dialogue.” Conflict Resolution Quarterly 27 (2): 215 – 235. Boulding, K. E. 1988. “Social Justice as a Holy Grail: The Endless Quest.” Social Justice Research 2 (1): 49 – 60. Braithwaite, J. 2002. “Setting Standards for Restorative Justice.” British Journal of Criminology 42 (3): 563-577. Braithwaite, J. 1999. “Restorative Justice: Assessing Optimistic and Pessimistic Accounts.” Crime and Justice 25: 1-127. Braithwaite, J., and H. Strang. 2001. “Introduction: Restorative Justice and Civil Society.” In Restorative Justice and Civil Society, edited by H. Strang and J. Braithwaite. New York: Cambridge UP. Chen, Y., and M. Nakazawa. 2009. Influences of Culture on Self-Disclosure as Relationally Situated in Intercultural and Interracial Friendships from a Social Penetration Perspective.” Journal of Intercultural Communication Research 38 (2): 77-98. Daly, K. 2002. “Restorative Justice: The Real Story.” Punishment and Society 4 (1): 55 – 79. De Beus, K., and N. Rodriguez. 2007. “Restorative Justice Practice: An Examination of Program Completion and Recidivism.” Journal of Criminal Justice 35 (3): 337- 347. Dignan, J., A. Atkinson, H. Atkinson, M. Howes, J. Johnstone, G. Robinson, J. Shapland, & A. Sorsby. 2007. “Staging Restorative Justice Encounters Against a Criminal Justice Backdrop: A Dramaturgical Analysis.” Criminology & Criminal Justice 7 (1): 5 – 32. Donohue, W. A. 1991. Communication, Marital Dispute, and Divorce Mediation. Hillsdale, NJ: Lawrence Erlbaum. Folger, J. P., M. S. Poole, and R. K. Stutman. 2007. Working Through Conflict: Strategies for Relationships, Groups, and Organizations. (7th ed.). New York: Pearson. Frey, L. R., W. B. Pearce, M. A. Pollock, L. Artz, and B. O. Murphy. 1996. “Looking for Justice in All the Wrong Places: On a Communication Approach to Social Justice.” Communication Studies 47 (1-2): 110-127. Giddens, A. 1984. The Constitution of Society: Introduction of the Theory of Structuration. Berkeley, CA: University of California Press. Johnstone, G. 2002. Restorative Justice: Ideas, Values, Debates. New York: Routledge. Kelley, D. L., and V. R. Waldron. 2005. “An Investigation of Forgiveness-Seeking Communication and Relational Outcomes.” Communication Quarterly 53 (3): 339 – 358. Kuo, S., D. Longmire, and S. J. Cuvelier. 2010. “An Empirical Assessment of the Process of Restorative Justice.” Journal of Criminal Justice 38 (3): 318-328. Latimer, J., C. Dowden., and D. Muise. 2005. “The Effectiveness of Restorative Justice Practices: A Meta-Analysis.” The Prison Journal 85 (2): 127 – 144. Lindlof, T., R., and B. C. Taylor. 2011. Qualitative Communication Research Methods, 3rd ed. Thousand Oaks, CA: Sage. McCullough, M. E., L. M. Root, and A. D. Cohen. “Writing About the Benefits of Interpersonal Transgression Facilitates Forgiveness.” Journal of Consulting and Clinical Psychology, 74 (5), 887 – 897. McCullough, M. E., S. J. Sandage, S. W. Brown, K. C. Rachal, E. L. Worthington, Jr., and T. L. Hight. 1998. “Interpersonal Forgiving in Close Relationships: II. Theoretical Elaboration and Measurement.” Journal of Personality and Social Psychology 75 (6): 1586-1603. Morris, A. 2002. “Critiquing the Critics: A Brief Response to Critics of Restorative Justice.” British Journal of Criminology 42 (3): 596-615. Morrison, B. 2006. “School Bullying and Restorative Justice: Toward a Theoretical Understanding of the Role of Respect, Pride, and Shame.” Journal of Social Issues 62 (2): 371-392. Newbury, A. 2008. “Youth Crime: Whose Responsibility?” Journal of Law and Society 35 (1): 131-149. Okimoto, T. G., M. Wenzel, and Feather, N. T. 2009. “Beyond Retribution: Conceptualizing Restorative Justice and Exploring its Determinants. Social Justice Research, 22 (1), 156 – 180. Pavlich, G. 2005. Governing Paradoxes of Restorative Justice. Portland, OR: Glasshouse Press. Presser, L., and C. A. Hamilton. 2006. “The Micropolitics of Victim-Offender Mediation.” Sociological Inquiry 76 (3): 316-342. Rodriguez, N. 2007. “Restorative Justice at Work: Examining the Impact of Restorative Justice Resolutions on Juvenile Recidivism.” Crime & Delinquency 53 (3): 355 – 379. Rokeach, M. 1973. The Nature of Human Values. New York: Free Press. Rossner, M. 2011. “Emotions and Interaction Rituals: A Micro Analysis of Restorative Justice.” British Journal of Criminology 51 (1): 95-119. Schwartz, S. H., and W. Bilsky. 1987. “Toward a Universal Psychological Structure of Human Values.” Journal of Personality and Social Psychology 53 (3): 350-362. Shapland, J., A. Atkinson, H. Atkinson, E. Colledge, J. Dignan, M. Howes, J. Johnstone, G. Robinson, and A. Sorsby, 2006. “Situating Restorative Justice within Criminal Justice.” Theoretical Criminology 10 (4): 505 – 532. Sitkin, S. B., and R. J. Bies. 1994. “The Legalization of Organizations: A Multi-Theoretical Perspective.” In The Legalistic Organization, edited by S. B. Sitkin & R. J. Bies. Thousand Oaks, CA: Sage. Stubbs, J. 2007. “Beyond Apology? Domestic Violence and Critical Questions for Restorative Justice.” Criminology & Criminal Justice 7 (2): 169-187. Tyler, T. R. 2006. “Restorative Justice and Procedural Justice: Dealing with Rule Breaking.” Journal of Social Issues 62 (2): 307-326. Tyler, T. R., and E. A. Lind. 1992. “A Relational Model of Authority in Groups.” In Advances in Experimental Social Psychology, edited by M. P. Zanna, vol. 25. New York: Academic Press. Umbreit, M. S. 2001. The Handbook of Victim-Offender Mediation: An Essential Guide to Practice and Research. New York: Jossey-Bass. Umbreit, M. S., R. B. Coates, and B. Vos. 2007. “Restorative Justice Dialogue: A Multi- Dimensional, Evidence-Based Practice Theory.” Contemporary Justice Review 10 (1): 23 – 41. Vaandering, D. 2011. “A Faithful Compass: Rethinking the Term Restorative Justice to Find Clarity.” Contemporary Justice Review 14 (3): 307 – 328. Wachtel, T., and P. McCold. 2001. “Restorative Justice in Everyday Life.” In Restorative Justice and Civil Society, edited by H. Strang and J. Braithwaite. New York: Cambridge UP. Warnke, G. 1992. Justice and Interpretation. Cambridge, MA: The MIT Press. Waldron, V. R., and D. L. Kelley. 2008. Communicating Forgiveness. Thousand Oaks, CA: Sage. Wenzel, M., and T .G. Okimoto, T. G. 2010. “How Acts of Forgiveness Restore a Sense of Justice: Addressing the Status / Power and Value Concerns Raised by Transgressions.” European Journal of Social Psychology 40 (3): 401-417. Wenzel, M., T. G. Okimoto, N. T. Feather, and M. J. Platow. 2008. “Retributive and Restorative Justice.” Law and Human Behavior 32 (5): 375-389. Winslade, J. 2005. “Mediation with a Focus on Discursive Positioning.” Conflict Resolution Quarterly 23 (4): 501 – 515. Worthington, E. L. Jr. 2003. Forgiving and Reconciling. Downers Grove, IL: InterVarsity Press. Worthington Jr., E. L., and N. G. Wade. 1999. “The Psychology of Unforgiveness and Forgiveness and Implications for Clinical Practice.” Journal of Social and Clinical Psychology 18 (4): 385 – 418. Wunsttin, M. 2001. “Community Mediation: Providing Justice and Promoting Transformation.” Conflict Resolution Quarterly 19 (2): 251-259. Zechmeister, J. S., and C. Romero. 2002. “Victim and Offender Accounts of Interpersonal Conflict: Autobiographical Narratives of Forgiveness and Unforgiveness.” Journal of Personality and Social Psychology, 82: 675-686. Zehr, H. 2002. The Little Book of Restorative Justice. Intercourse, PA: Good Books. Zernova, M. 2007. “Aspirations of Restorative Justice Proponents and Experiences of Participants in Family Group Conferences.” British Journal of Criminology 47 (3): 491- 509. PaulCoverPage2014 Other voice Auth vers 
work_tdaagfle6vfaxnab7acpmhzsfi	----	BIROn - Birkbeck Institutional Research Online McDowall, Almuth and Fletcher, C. (2004) Management development from an organisational justice perspective. Personnel Review 33 (1), pp. 8-29. ISSN 0048-3486. Downloaded from: http://eprints.bbk.ac.uk/id/eprint/13525/ Usage Guidelines: Please refer to usage guidelines at https://eprints.bbk.ac.uk/policies.html or alternatively contact lib-eprints@bbk.ac.uk. http://eprints.bbk.ac.uk/id/eprint/13525/ https://eprints.bbk.ac.uk/policies.html mailto:lib-eprints@bbk.ac.uk Page 1 of 27 McDowall, A. & Fletcher, C., Employee Development – an Organizational Justice Perspective Keywords Procedural justice, interactional justice, employee development, workplace attitudes, feedback climate, 360-degree feedback Abstract The present study examined possible links between elements of perceived procedural justice, global fairness perception and attitudinal measures in a review/ development context. Organizational justice and possible correlates were reviewed resulting in four hypotheses. Data was collected from 132 employees of the UK arm of an international new media agency via a web-based survey. It was found that a psychometric instrument based on Gilliland’s (1993) ten rules of procedural justice proved a valuable framework in a review and development context once condensed to a smaller number of factors. Of these, two factors relating to Interpersonal Effectiveness and Formal System Characteristics respectively were found to be of importance in predicting fairness ratings of the development process. The impact of 360-degree feedback on procedural justice perceptions was also examined in between group comparisons. Implications for further research into development techniques using organizational justice frameworks and recommendations for practice were discussed. Page 2 of 27 Introduction In general organizational contexts have undergone fundamental changes. The prevalence of long-term relational psychological contracts, based on a ‘job for life’ in return for loyalty, is diminishing (Rousseau, 1995). Instead, the prevalence of a growing number of short-term contracts and portfolio workers, combined with increasing employee mobility, has been observed. At the same time, the value of human capital has increasingly been recognised and it has been suggested that ‘organizations should become platforms for individuals, as opposed to individuals becoming resources for organizations’ (Patterson, 2001, p.384). Inexorably then, it has become the employers’ responsibility to develop and prepare people for their next job: a message that has registered with the workforce. Thus, it is in an organization’s best interest to focus on effective staff development strategies, since companies strong on training and development may be preferred over those offering the greatest rewards. As a result the onus is on researcher-practitioners in the field to delineate which factors underlie a fair and effective development process. Indeed, the apparent lack of research in the field seems at odds with recent trends in the labour market, where employability and transferable skills have become the new buzzwords. One technique for developing individuals is through the social and motivational aspects of appraisal or review processes (Fletcher, 2001). The terms are often used interchangeably, although it seems to be conventional to use the term appraisal in relation to the formal rating of performance in the literature, whereas the term review is used widely in human resource practice, and tends to also encompass the developmental aspects of appraisal. In this paper, the terms ‘review’ and ‘employee development’ are going to be employed and will refer to a range of processes. It is proposed here that employee development could succinctly be classified as methodologies that have the aim of promoting both the professional and personal growth of individuals in the workplace, encompassing techniques such as formal performance ratings, multi-source feedback techniques, career discussions with managers and the agreement of personal development plans. Most studies to date have tended to concentrate on performance or rewards rather than development, perhaps reflecting the traditional practice of retrospective assessment (Nathan , Mohrman & Milliman, 1991). Models developed in this Page 3 of 27 context have emphasised the importance of understanding both the raters’ and ratees' attitudes and beliefs about appraisal and the organizational context, as prevailing attitudes can put a ‘ceiling’ on the effectiveness of any method (Cleveland & Murphy, 1992; Murphy & Cleveland, 1991, 1995; Murphy, Cleveland; Henle, Morgan, Orth & Tziner, 1996). Furthermore it has been noted that singular initiatives, such as the instigation of personal development plans, should be bound into a context of overall commitment to employee development and hence into an organizational strategy characterised by clear elements of performance management; these include enhanced communication within the organization and instigation of appropriate development methodologies (Fletcher & Williams, 1992; Williams, 1998). If these aspects are incorporated successfully, a positive impact on a variety of outcome measures should result, such as increased job satisfaction, job involvement or organizational commitment (Fletcher & Williams, 1996). Feedback Effects and an Organizational Justice Perspective To examine the impact of development methodologies existing literature on feedback effects may provide a useful research perspective when combined with an organizational justice perspective. Generic research findings about the impact of feedback have been largely equivocal (Kluger & DeNisi, 1996), and it is not always the case that positive feedback results in positive effects, and negative feedback in negative effects (Bastos & Fletcher, 1995). It is possible that organizational justice frameworks could account for this phenomenon, with feedback only having an effect if it is perceived as just and fair. There is a substantial body of literature concerned with fairness in organizations, which is briefly reviewed here. The term ‘organizational justice’ was originally coined by Greenberg in the 1980s (Cropanzano & Greenberg, 1997) and has generally been postulated to encompass three different components (e.g. Folger & Cropanzano, 1998; Bowen, Gilliland& Folger, 1999):  Distributive justice: this is largely based on equity theory (Adams, 1965) and refers to the perceived fairness of outcomes that an individual receives (e.g. Cropanzano & Folger, 1991) Page 4 of 27  Procedural justice: the perceived fairness of procedures which are used to determine outcome decisions (Folger & Konovsky, 1989)  Interactional justice: the term was conceived by Bies and Moag (1986) and relates to the perceived fairness of the interpersonal communication relating to organizational procedures. Although early justice frameworks tended to concentrate on distributive justice, since the early 80s the focus has shifted to the examination of procedural justice (e.g. Folger & Greenberg, 1985). Two theoretical orientations have predominated. Thibaut and Walker (1975) put forward a legal perspective that emphasized the role of ‘voice’ or ‘process control’. In their view individuals see decisions as fair when they perceive adequate opportunity to participate in the decision-making process. In contrast, Leventhal (1980) emphasised cognitive processes and how the violation or fulfilment of procedural rules influences overall fairness perceptions. Prompted by the initial work of Bies and his associates (e.g. Folger & Bies, 1989, Tyler & Bies, 1990) research into procedural justice has been augmented by accounts of its social aspects. However, it has been disputed whether these social aspects are a separate construct, or whether procedural justice might not better be conceived in terms of two sub-components that are a) fair formal procedures and b) interactional justice (Greenberg, 1990). The present research subscribes to the latter approach, as it is argued that the way organizational decisions and processes are communicated is naturally interdependent with the actual implementation. Research relating to this domain has largely been confined to the US, where fairness of organizational decision making has received much attention in relation to the concept of the psychological contract (Rousseau, 1995), as well as in relation to assessment and selection (Gilliland, 1993, 1995; Bauer, Truxillo, Sanchez, Ferrara & Campion, 2001) and also in the context of performance appraisal (Erdogan, Kraimer, & Liden, 2001). It is widely believed that appraisal systems are by their nature unfair (Levine, 1975), as employers are more concerned with the assessment of performance, whereas employees expect more from the developmental and motivational aspects (Fletcher, 1997). Research on the latter domain is somewhat sparse, thus a perspective concerning itself with Page 5 of 27 fairness may prove useful for informing best practice in the context of employee development and pre-empting possible resistance to development processes. Perceptions of procedural justice have consistently been shown to affect a variety of outcome variables (Flint, 1999) such as employee acceptance of performance appraisals (Greenberg, 1986; Landy, Barnes-Farell & Cleveland, 1980, Landy, Barnes & Murphy, 1978), organizational commitment (Konovsky and Cropanzano, 1991) or job satisfaction (Schaubroeck, May & Brown, 1994). Thus, it is postulated here that the characteristics of any review and development system are related both to an overall supportive feedback and communication structure, and to changes in attitudinal measures. Based on Greenberg’s (1986; 1990) work, Gilliland’s (1993) model elucidated the role of organizational justice in selection by outlining how situational and personal conditions influence the perceived violation of distributive and procedural justice rules. Testing his theoretical account in practice, Gilliland (1995) went on to examine the association of ten rules of procedural justice (such as honesty, reconsideration opportunity, and two-way communication) with candidates’ reactions to interview procedures. It was concluded that the provision of adequate explanations might alleviate otherwise negative reactions, that timely feedback is of prime importance and that the interpersonal effectiveness of the interviewer is a primary factor for interview reactions. The present study attempts to transfer the said framework to a review and development context. It was hypothesized that Gilliland’s (1993) rules of procedural justice could be condensed to a smaller number of factors, commensurate with Gilliland’s (1993) tri-partite classification. As Table I shows this consisted of a) formal characteristics (of the procedure employed), b) explanation and c) interpersonal treatment. Each of these dimensions was expected to correlate with an overall fairness rating of the review and development process. It was further anticipated that an overall fairness rating, as well as subcomponents of procedural justice, would correlate significantly and positively with organizational commitment and job satisfaction. Those who perceive the review process as fair may be more likely to feel emotionally committed to their organization, feel less likely to leave and feel more Page 6 of 27 committed to their job. Moreover, measures of procedural justice were also hypothesized to correlate positively with the feedback climate, operationalised here as feedback satisfaction, contact satisfaction (outside the review and development process) and perceived company support. The impact of 360-degree feedback The data presented here was collected via a web-based employee survey and was used to evaluate the effectiveness of recently introduced development initiatives in the London office of an international new media agency. These included ‘Personal Development Champions’, managers (other than the direct line manager) assigned to employees and whose role included the discussion and implementation of customised personal development plans. The survey aimed to evaluate the development processes and employee acceptance of the personal development champions. A pilot programme of 360-degree feedback used solely for developmental purposes had also recently been trialled with part of the work force. Multi-source/ multi-rater or 360-degree feedback methods generally entail an individual being rated from a variety of sources, such as peers, superiors, subordinates and occasionally customers, and usually includes a self-assessment. Such systems are assumed to offer certain advantages over singular-source appraisal, such as empowering employees, increasing self-awareness and serving as a diagnostic tool for pinpointing areas for personal development or performance optimisation. In addition, 360-degree feedback has been postulated to be inherently fairer and hence have greater face validity than monolithic systems (Fletcher & Baldry, 1999; Garavan, Morley & Flynn, 1997), as it is purported to be more balanced and rounded assessment. Therefore, it was hypothesised that the experience of 360-degree feedback-based reviews would have a positive effect on employees’ procedural justice perceptions. In summary, this paper is concerned with the exploration of factors underlying procedural justice in a review context, the correlates thereof and the impact of 360-degree feedback on fairness’ perceptions. The experimental hypotheses were: H1: that Gilliland’s (1993) ten rules of procedural justice could be condensed to three factors commensurate with his tri-partite classification Page 7 of 27 H2: that sub-components of procedural justice would independently predict an overall fairness rating H3: that an overall fairness rating as well as sub-components of procedural justice would correlate significantly with organizational commitment, job satisfaction and the perceived feedback climate H4: that those who had experienced 360-degree feedback would perceive the review process as fairer than those who had not Method Scale Development The first section of the survey instrument elicited relevant biographic information, such as age, tenure, sex and review experience to date. The second section consisted of a procedural justice scale operationalised as twenty-eight statements, which related to Gilliland's (1995) rules as set out in Table I: Insert Table I about here The third section of the questionnaire contained the Allen and Meyer (1990) organizational commitment scale, consisting of three subscales; namely for affective, normative and continuance commitment. The fourth section of the instrument elicited a global rating of job satisfaction as well as three items measuring the feedback climate; these were one-item measures of feedback satisfaction, contact satisfaction and perceived organizational support. The last section of the questionnaire invited participants’ open comments with regard to issues raised by the survey. Responses were scored categorically for biographical data, and continuously from 1 (‘strongly disagree’) to 7 (‘strongly agree’) for the scales employed, with negative items scored in reverse. A pen and paper version of the questionnaire was piloted with thirteen individuals in order to ensure clarity - these were occupational psychologists, occupational psychology students and HR practitioners. The pilot sample included individuals Page 8 of 27 from the actual organization who were in a position to ensure face validity of the items, as well as individuals from outside the organization who provided an impartial perspective. Feedback on the layout and wording from the pilot sample considered all survey items relevant. Three items were reworded using the suggestions made by pilot respondents in order to eliminate ambiguous terms. Survey Publication and Debriefing The survey was published for a four-week period on the company’s intranet. In order to avoid individual multiple responses each respondent was issued with a unique identity code that was only known to the researcher and that respondent. All participants were ensured confidentiality and anonymity, as all data was held and processed by an external researcher. An email was sent out prior to commencement of the survey containing contact details for the researcher and explaining that participation was not mandatory and participants could opt out of the submission of data at any point. Two emails reminding employees to complete the survey were sent, one after two weeks, one after three weeks. All participants were given information about the aim of the survey prior to the study and a synopsis of the findings was published on the company’s intranet once all data was analysed. Findings All statistical analyses were computed using SPSS version 9.0 for Windows. Responses from six individuals were omitted from the analysis due to too much missing data. Missing data for individual analyses was deleted list-wise where necessary. Descriptive Statistics Data from 132 out of a pool of 297 individuals was collected, equalling a response rate of 45%. Respondents represented all four work-teams proportionally and covered all job roles; hence the sample was considered representative. Of the total respondents, 56.2% were male and 43.8% female. Three-quarters of the Page 9 of 27 respondents (76.5%) were less than thirty years old and 63.4% had been working for the company for less than a year; just over 30 percent had joined the organization by acquisition. Approximately one third of participants had not yet had a review experience at the time of the survey and were unable to complete survey sections relating specifically to development initiatives, but were nevertheless able to complete all other items. Just over 50% had experienced their last review during the last three months and 52.8% had experienced 360-degree feedback as part of their review. Explorative examination of participants’ ratings (N=126) revealed six outliers, which were removed from the analysis as recommended by Tabachnik & Fidell (1996). Following reliability analysis, two items were removed from the affective commitment scale, a further two items from the continuance commitment scale, and lastly three items from the normative commitment scale. Coefficient alpha (0.49) for the affective commitment nevertheless remained low. The sub-scales were averaged to create an overall measure of organizational commitment, mean values were observed as per Table II: Insert Table II about here Participants’ mean organisational commitment was below the scale midpoint (mean rating 3.43, SD=.74). Participants were on average satisfied with their job (mean rating 4.74, SD=1.68). With regard to the feedback climate, employees were satisfied with the amount of contact with their supervisor outside the review process (mean rating 4.28, SD=1.71), and with the overall perceived company support (mean rating 4.41, SD=1.67). However, they were less satisfied with the overall amount of feedback received (mean rating 3.82, SD=1.65). An average measure of the perceived feedback climate was computed from these three items, see Table III: Insert Table III about here Page 10 of 27 Procedural Justice Scale In order to determine the reliability of the procedural justice scale Cronbach’s alpha was rerun successively, screening for scale reliability if item deleted. Henceforth seven items were removed, coefficient alpha for the curtailed scale of twenty-one statements was .72. With regard to the scale sub-structure, this reduced the number of items per subscale to three for job relatedness, one for consistency, three for feedback, one for development/review information, one for honesty, two for interpersonal effectiveness and lastly retaining the two items each for two-way communication and propriety of questions. Thus, neither ‘opportunity to perform’ nor ‘reconsideration opportunity’ were represented in the final item pool. Due to the particular nature of the sample (as fewer participants than anticipated had had a review/development experience) only 79 out of 133 participants had been in a position to respond to these items. Hence, findings derived from the subsequent factor analysis will have to be treated with caution, as correlation coefficients tend to be less reliable when estimated from small samples (Comrey & Lee, 1992). H1 stated that Gilliland’s (1993) rules of procedural justice could be reduced to a smaller number of factors commensurate with his overall tripartite classification. As the aim of the analysis was a parsimonious solution that clearly differentiated underlying factors, Principal Components Analysis (PCA) was run on the condensed twenty-one-item scale; extracting Eigenvalues greater than 1 and suppressing values smaller than .3 in line with general convention (Tabachnik & Fidell, 1996). The initial rotated solution using Varimax procedure to maximise variance revealed a possible five-factor 1 structure. However, employing the Scree Test as a further visual criterion for determining the number of factors (Cattell, 1966), there was good reason to suspect a three-factor structure as the best fit. Also, taken together, the first three factors accounted for 54% of the overall variance. 1 Since Principal Components Analysis was used as the method of extraction, Principal Components were extracted. However for ease of reference and commensurate with common language, these are referred to as Factors in the following. Page 11 of 27 On this basis PCA was re-run requesting a forced three-factor solution. All twenty-one items were found to load strongly onto the factors extracted. Several of the marker variables (items loading on one factor only), exceeded loadings of .71, which is considered excellent (Comrey and Lee, 1992) and each factor was determined by more than four loadings greater than 0.4. Where multiple loadings were observed, items were assigned to the component where they displayed the higher loading (underlined), see Table IV: Insert Table IV about here The extracted factors were named and interpreted in order of magnitude:  ‘Review rapport and Interprsonal Effectiveness’: the strongest factor would appear to largely mirror Gilliland’s (1993) dimension of interpersonal treatment which parallels the concept of interactional justice, marked by items such as ‘I felt that my personal development champion/ the person who did my review conveyed that he/she really understands me’.  ‘Interference with explanation’: the second factor was overall negatively coloured (negatively worded items loading positively and positively worded items loading negatively) and related to the dimension of explanation from the selection context (Gilliland, 1993) marked by items such as ‘Some questions asked during my personal development meeting /review were more intrusive than I would have liked them to be’.  ‘Adequacy of review characteristics and format’: this would appear to mirror formal characteristics of the process (Gilliland, 1993), containing items such as ‘The current format is comprehensive enough to give me an accurate review’. apart from job relatedness which loaded onto ‘adequacy of review format and characteristics’ and two way communication which loaded onto ‘review rapport and interpersonal effectiveness’, none of the procedural justice rules loaded clearly onto the factors as commensurate with the original taxonomy. The factor scores were saved using regression and used for the subsequent analysis. Page 12 of 27 Procedural justice: Further Analysis In order to test H2, standard multiple regression was run using the overall fairness rating as the criterion and the factor scores for review rapport and ‘interpersonal effectiveness’, ‘interference with explanation’ and ‘adequacy of review characteristics and format’ as predictors, see Table V: Insert Table V about here The model was overall significant (F(3,71)=29.612, p<.001). Two of the independent variables, ‘review rapport and interpersonal effectiveness’ (p<.0001) and ‘adequacy of review characteristics and format’ (p<.0001) were found to contribute significantly to the regression equation. In addition, it had been expected a priori that both the overall fairness rating and sub-components of procedural justice would be positively and significantly correlated with attitudinal outcome measures. For the full set of correlations see Table VI: Insert Table VI about here The perceived feedback climate was found to be highly significant and positively correlated with the overall fairness rating (p<.01) and with ‘adequacy of review format and characteristics’ (p<.01). The feedback climate was also significantly and positively associated with ‘review rapport and interpersonal effectiveness’ (p<.05) and significantly and negatively with ‘interference with explanation’ (p<.05). Job satisfaction was highly significant and positively correlated with ‘review rapport and interpersonal effectiveness’ (p<.01) and significantly and positively with the overall fairness rating (p<.01). Partially disconfirming the hypothesis organizational commitment was not associated with any of the justice components or with the overall fairness rating. Lastly, it had been hypothesized a priori that those who had experienced 360- degree feedback as part of their reviews would give a more positive overall fairness rating to the development process than those who had not. An Page 13 of 27 independent samples t-test was conducted to examine whether the difference between the two groups was statistically significant. The p value was in the expected direction and reached statistical significance for a one-tailed test at the 5% level (t (76)=1.76, p<0.05) 2 . 2 Critical value for t for 60 degrees of freedom 1.67 or more extreme (Fischer & Yates, 1974) Page 14 of 27 Discussion Principal Components Analysis revealed that, as hypothesised, Gilliland’s (1993) ten rules of procedural justice could be condensed meaningfully to a three factor- solution for a review and development context mirroring the author’s tri-partite classification. It is of interest to note that the strongest observed factor centred on interpersonal characteristics and communication effectiveness. This clearly parallels the concept of interactional justice, and hence would lend support to the notion that although social aspects may be considered as a sub-component of procedural justice, they nevertheless merit importance as a distinct factor. Indeed, communication and social interaction are crucial in a review context, as these are only meaningful when feedback is given. It is the feedback, and not the mere method itself, which enables the appraisee to make sense of information received and to further his/ her development. Indeed, the usefulness of sole performance- rating based appraisal has long been disputed (Fletcher, 1997, 2001). The results further link to other findings about workplace feedback sources (Bastos & Fletcher, 1995), which highlighted the importance of feedback-giver specific variables, such as the credibility of the feedback source. In general, the pattern observed here would seem to re-emphasize the need for future research into the feedback giver-feedback recipient relationship, as postulated by a recent review (Lefkowitz, 2000) which discussed potentially mediating factors such as supervisor affect (‘liking’). Having tested the second working hypothesis, both ‘adequacy of review format and characteristics’ and ‘review rapport and interpersonal effectiveness’ (in order of magnitude) were significant independent predictors of the overall fairness rating, whereas ‘Interference with Explanation’ did not contribute significantly to the regression equation. This would seem in line with Greenberg (1986) who postulated formal characteristics and interactional justice as twin components of procedural justice, as opposed to Gilliland (1993), who added the third dimension of explanation. Furthermore this parallels findings in the context of selection by Bauer et al (2002), who developed the Selection Procedural Justice Scale (SPSJS) from Gilliland’s rules and also found the third dimension of explanation to be redundant. Unfortunately, the sample size obtained here was insufficient for Page 15 of 27 further Confirmatory Factor Analysis contrasting a two-factor solution with a three-factor solution. Having tested H3 several strong associations between the survey sub-scales emerged. The perceived feedback climate was highly significant associated with the overall fairness rating and ‘Adequacy of the Review Format and Characteristics’, associated significantly with ‘Review Rapport and Interpersonal Effectiveness’ and associated significantly and negatively with ‘Interference with Explanation’. Once more, these associations highlight the importance of interpersonal variables and lead on to a couple of possible inferences. Firstly, it may be that those who find their reviews to be conducted adequately and efficiently are more satisfied with the overall feedback climate. Secondly the reverse could be the case; that an adequate and supportive environment is an antecedent of efficient and satisfying development processes. Hence future studies may want to concentrate on solving this dilemma; whether an efficacious process sets the ground for a good feedback relationship, or whether good relationships make for a more efficacious process. Future studies should isolate relationships’ distinctive characteristics such as liking or experience and their effects on other outcome measures, and how this in turn is influenced by the organizational context, thus building on earlier work within this domain (e.g. Nathan, Mohrmann, Milliman, 1991; Judge & Ferris, 1993). One implication for occupational psychology and human resource practice is that interpersonal aspects should deserve just as much attention as formal processes, hence amplifying the need for adequate interpersonal skills training for those in charge of development initiatives. Following on from this, job satisfaction was highly significant and positively associated with ‘review rapport and interpersonal effectiveness’ and significantly with the overall fairness rating. As communication effectiveness is also perceived as a key element of performance management (Williams, 1998), this observed association confirms earlier findings by Fletcher and Williams (1996) who found that performance management initiatives had a marked impact on a variety of measures and in particular on job satisfaction. Somewhat surprising, organizational commitment was not found to be associated with any of the fairness measures. The scale seemed to have suffered a loss of Page 16 of 27 reliability compared to earlier validation studies, in particular the sub-scale for affective commitment (see Table II). One possible explanation for this finding is that in today’s team-based working environment employees find it difficult to comment on their emotional attachment to the organization, as the latter term may stand for a variety of entities such as the work team, the manager, or the organization as a whole. This was underlined by comments from several study participants who found survey items relating to organizational commitment difficult or even impossible to answer. Indeed, several studies and meta-analytic reviews have critically evaluated the validity and reliability of the three- component model (e.g. Mathieu & Zajac, 1990; Coleman, Irving, & Cooper, 1999; Ko, Price & Mueller, 1997). The strongest observed correlation was between ‘adequacy of review characteristics and format’ and the overall fairness rating. This ties in with earlier findings on selection interviews, where formal characteristics had been found to be the most important predictor of candidates’ procedural justice perceptions (Gilliland, 1995). In general, observed strong correlations between the overall fairness perception and attitudinal measures reinforce the need to consider and monitor user attitudes when implementing any review and development process, as otherwise even well implemented systems may fail due to a lack of acceptability. With regard to best practice, the findings reinforce the need for tight and effective processes within a development context, as otherwise a detrimental impact on individual fairness perceptions may occur. The findings also seem to be supported by existing frameworks utilising the concept of the psychological contract, a widely used metaphor for a set of mutual expectations about the workplace (e.g. Rousseau, 1995). Procedural justice is said to bear particular relevance to the experienced magnitude of contract violations, with a greater chance of more adverse reactions when rules of fairness have been dishonoured. It has been postulated that such potentially negative impact could be prevented by the implementation of fair procedures that promote accuracy, consistency and correctability (Rousseau, 1995), all of which would seem to tie in with ‘adequacy of the review characteristics and format’ as observed here. With regard to the fourth experimental hypothesis, it had been postulated that those who had experienced 360-degree feedback as part of their reviews would Page 17 of 27 rate the development system as fairer, which was supported by the statistical comparison between the two groups. Thus it transpires that in this organizational context 360-degree feedback had a positive impact on employees’ procedural justice perceptions, which lends a degree of support to its increasingly widespread implementation. Therefore an organizational justice framework could provide a valid theoretical perspective for further investigations into the efficacy of this method. This would then serve to supplement existing frameworks on feedback effects (e.g. London & Smither, 1995) as well as empirical findings concerned with the ratings themselves (e.g. Fletcher, Baldry & Cunningham-Snell, 1997). Due to the sample size and the information collected it was not possible to conduct additional detailed post hoc comparisons in the present context. Without a doubt there is a dearth of long-term evaluations in contemporary corporate life, as any assessments more often than not tend to stop at the mere ‘reactions level’ assessing immediate reactions after participation in an activity (Kirkpatrick, 1959; in Patrick, 1992). Organizations would be well advised to monitor the effectiveness of their processes (both in terms of the amount of actual development activity as well as in terms of employee reactions to the process) as otherwise large budgets may be wasted on inefficient deliveries. Future controlled comparisons may reveal which individual variables and which differing review methods, for example 360-degree feedback as compared to the utilisation of structured career interviews, result in significant interactions with regard to system justice. In all, the findings would seem to reinforce the need to bind review and appraisal systems into an overall organizational environment marked by good communication and support (Fletcher & Williams, 1996). Further explorations may want to concentrate on the impact of review and development processes on higher-level outcome measures, such as organizational culture, or ‘hard data’ such as turnover rates or absenteeism. A further way of approaching this would be to incorporate measures of employee perceptions of distributive justice; more specifically how candidates’ perceptions of eventual rewards such as promotions, lateral movements or training received, and how these are influenced by formal characteristics and interpersonal aspects respectively. Page 18 of 27 The research presented here was an intra-organizational case study of pre-existing conditions, and future studies could build on this by conducting inter-group comparisons between different organizations and methodologies. This would then have the aim of drawing up a more precise framework with regard to practical aspects of development processes from an organizational justice perspective, delineating fair processes from both the employees’ and the organizations’ perspective. It may be noted that it was beyond the scope of the present research to incorporate perceptions of distributive justice as a control variable as in prior investigations (Cropranzano, Prehar & Chen, 2002). The distribution of outcomes resulting from any development process, in terms of pay rises, career movement, promotions and development interventions received (such as training or the realisation of personal development plans) is likely to have a bearing on procedural justice perceptions and this should be addressed in future studies. The collection of data via the company intranet may also have limited the study, as differences between computer-based and pen and paper submissions have been demonstrated (Stanton, 1998; Smith & Leigh, 1997). Nonetheless, the method of data collection pre-empted multiple malicious data submissions and candidates were given the choice to opt out of the survey at any time. In addition participants’ responses were kept anonymous and all employees were fully debriefed as recommended by experts in the field (Stanton & Rogelberg, 2001). It should also be acknowledged that web-based surveys could hold certain advantages over pen and paper methods, for example responses have been found to be returned significantly faster and to contain longer open-ended comments (Yost & Homer, 1998). The latter was certainly the case in this instance since survey comments enhanced the analysis of the data received. Moreover, a web-based survey also fitted best with the company’s culture, which prided itself on a ‘paperless office’ utilising the intranet as the major communication tool. To conclude, the present study may constitute an exploratory stepping-stone into review and development processes and their impact on candidates’ reactions, as evaluated by an organizational justice framework. Principal Component Analysis supported a tri-partite taxonomy for procedural justice and highlighted the importance of interpersonal aspects or interactional justice. However, further analysis did not find the third factor, which related to ‘explanation’, to be a Page 19 of 27 significant predictor in its own right. Multi-source feedback was perceived as procedurally fairer than developmental feedback from the manager alone. Nevertheless, the role of manager within the development process would seem to merit attention in follow up research in order to elucidate the role of feedback and communication in more detail. It may also be fruitful to further consider actual development outcomes, as overall we still know comparatively little about the kind of developmental needs that groups of individuals have and how these are best met by a particular development activity (e.g. Carrick & Williams, 1998). Acknowledgements: the first author wishes to thank Dr Mark N.K. Saunders and an anonymous reviewer for their helpful comments on an earlier draft Page 20 of 27 References Adams, J.S. (1965), “Inequity in social exchange”, In L. Berkowitz (Ed.), Advances in experimental social psychology”, 2, pp. 267-299, New York: Academic Press. Allen, N.J & Meyer, J.P. (1990), “The measurements and antecedents of Affective, Continuance and Normative commitment to the organization”, Journal of Occupational Psychology, Vol. 63, pp. 1-18. Bastos, M. & Fletcher, C. (1995), “Exploring the Individual’s Perception of Sources and Credibility of Feedback in the Work Environment”, International Journal of Selection and Assessment, Vol. 3, pp. 29-39 Bauer, T.N., Truxillo, D. M., Sanchez, R.J. Craig, J. M, Ferrara, P & Campion, M. A. (2001), “Applicant Reactions to Selection: Development of the Selection Procedural Justice Scale (SPJS)”, Personnel Psychology, Vol. 54, pp. 387-419 Bies, R.J. & Moag, J.S. (1986), “Interactional Justice: Communication criteria of fairness”, in J.J. Lewicki, B.H. Sheppard, & M.H. Bazerman (Eds.), Research on negotiation in organizations (Vol. 1, pp.43-55). Greenwich, CT: JAI. Bowen, D.E., Gilliland, S.W. & Folger, R. (1999), “HRM and Service Fairness: How being Fair with Employees Spills Over to Customers”, Organizational Dynamics, Vol. 27, pp. 7-23 Carrick, P., & Williams, R. (1998), “Development Centres – a review of assumptions”, Human Resource Management Journal, Vol. 9 No. 2, pp. 77-92. Cattell, R.B. (1966), “The scree test for the number of factors”, Multivariate Behavior Research, Vol. 1, 245-269. Cleveland, J.N. & Murphy, K.R. (1992), “Analyzing performance as goal-directed behavior”, In G. Ferris & K. Rowland (Ed.), “Research in personnel and human resources management” (Vol. 10), Greenwich, JAI Press. Coleman, D.F., Irving, G.P. & Cooper, C.L. (1999), “Another look at the locus of control-organizational commitment relationship: it depends on the form of commitment”, Journal of Organizational Behaviour, Vol. 20, pp.995- 1001. Comrey, A.L. & Lee, H.B. (1992), “A first course in factor analysis” (2 nd ed.), Hillsdale, NJ: Erlbaum. Cropanzano, R. & Folger, R. (1991), “Procedural justice and worker motivation”, in R.M. Steers & L.W. Porter, (Eds.), Motivation and work behavior, (5 th ed, pp.131-143). New York: McGraw-Hill Cropanzano, R. & Greenberg, J. (1997), “Progress in Organizational Justice: Tunnelling through the Maze”, International Review of Industrial and Organizational Psychology, Vol. 12, pp.317-372 Cropanzano, R., Prehar, C.A. & Chen, P.Y. (2002), “Using Social Exchange Theory to Distinguish Procedural from Interactional Justice”, Group & Organization Management, Vol. 27 No. 3, pp. 324-351. Page 21 of 27 Erdogan, B., Kraimer, M.L. & Liden, R.C. (2001), “Procedural Justice as a Two- Dimensional Construct. An Examination in the Performance Appraisal Context”, Journal of Applied Behavioural Science, Vol. 37, p.205-222 Fedor, D.B., Rensvold, R.B. & Adams, S. M (1992), “An Investigation of Factors Expected to Affect Feedback Seeking: a Longitudinal Field Study”, Personnel Psychology, Vol. 45, pp. 779-805 Fischer, R.A. & Yates, F (1974), “Statistical Tables for Biological, Agricultural and Medical Research”, London: Longman. Fletcher, C. (1997), “Appraisal. Routes to improved performance” (2 nd . Ed), Institute of Personnel and Development, London. Fletcher, C. (2001), “Performance Appraisal and Management: The developing research agenda”, Journal of Occupational and Organizational Psychology, Vol 74, 473-487. Fletcher, C. & Baldry, C. (1999), “Multi-Source Feedback Systems: A research Perspective”, in: International Review of Industrial and Organizational Psychology, John Wiley & Sons Ltd, London. Fletcher, C., Baldry, C. & Cunningham-Snell, N. (1997), “The psychometric properties of 360 degree feedback: an empirical study and a cautionary tale”, International Journal of Selection and Assessment, Vol. 6, pp. 19-34. Fletcher, C. & Williams, R. (1992), “Performance Management in the UK: an Analysis of the Issues”, Institute of Personnel and Development, London. Fletcher, C. & Williams, R. (1996), “Performance Management, Job Satisfaction and Organizational Commitment”, British Journal of Management, Vol. 7, pp. 169-179. Flint, D.H. (1999), “The role of organizational justice in multi-source performance appraisal: theory-based applications and directions for research”, Human Resource Management Review, Vol. 9, pp. 1-20. Folger, R. & Bies, R.J., (1989) “Managerial responsibilities and procedural justice”, Employee Responsibilities and Rights Journal, 2, 79-90. Folger, R. & Konovsky, M.a. (1989), “Effects of procedural and distributive justice on reactions to pay rise decisions”, Academy of Management Journal, Vol. 32, pp. 115-130. Folger, R. & Cropanzano, R. (1998), “Organizational Justice and Human Resource Management”, Sage, Thousand Oaks, CA. Folger, R. & Greenberg, J. (1985), “Procedural Justice: An interpretive analysis of personnel systems”, Research in Personnel and Human Resources Management, Vol. 3, pp. 141-183. Garavan, T.N, Morley, M. & Flynn, M. (1997), “360 degree feedback: its role in employee development”, Journal of Management Development, Vol. 16, pp. 134-147 Gilliland, S.W. (1993), “The Perceived Fairness of Selection Systems: An Organizational Justice Perspective”, Academy of Management Review, Vol.18 No. 4, pp. 694-734. Page 22 of 27 Gilliland, S.W. (1995), “Fairness from the Applicant’s Perspective: Reactions to Employee Selection Procedures”, International Journal of Selection and Assessment, Vol. 3, pp. 10-19. Goldstein, I.L. (1993), “Training in Organizations: Needs assessment, development and evaluation”, Pacific Grove, CA, Brooks/ Cole. Greenberg, J. (1986a), “Organizational performance appraisal procedures: What makes them fair”, In Lewicki, R.J, Sheppard, B.H. & Bazerman M.H (eds.), Research on negotiation in organizations (Vol. 1), London, JAI Press. Greenberg, J. (1986), “Determinants of Perceived Fairness of Performance Evaluations”, Journal of Applied Psychology, Vol. 71, pp. 340-342. Greenberg, J. (1990), “Organizational Justice: Yesterday, today and tomorrow”, Journal of Management, Vol. 16, pp.399-432. Judge, T.A. & Ferris, G.R. (1993), “Social Context of Performance Evaluation Decisions”, Academy of Management Journal, Vol. 36, pp. 80-105 Kluger, A.N. & DeNisi, A. (1996), “The Effects of Feedback Interventions on Performance: A Historical review, a Meta-analysis and a Preliminary Feedback Intervention Theory”, Psychological Bulletin, Vol. 119, pp. 254- 284. Ko, J.-W., Prices, J.L. & Mueller, C.W. (1997), “Assessment of Meyer and Allen’s Three-Component Model or Organizational Commitment in South Korea”, Journal of Applied Psychology, Vol. 82, pp. 961-973. Konovsky, M.A & Cropanzano, R. (1991), “The perceived fairness of employee drug testing as a predictor of employee attitudes and job performance”, Journal of Applied Psychology, Vol. 76, pp. 698-707. Landy, F.J., Barnes, J.L. & Murphy, K.R. (1978), “Correlates of perceived fairness and accuracy of performance evaluation”, Journal of Applied Psychology, Vol. 63, pp. 751-754. Landy, F.J., Barnes-Farrel, J.L. & Cleveland, J.N. (1980), “Perceived fairness and accuracy of performance evaluation: a follow up”, Journal of Applied Psychology, Vol. 65, pp. 355-356. Leventhal, G.S. (1980), “What should be done with equity theory? New approaches to the study of fairness in social relationships”, in K.J. Gergen, M.S. Greenberg, & R.H. Willis (Eds.), Social Exchange: Advances in Theory and Research: pp. 27-55, New York: Plenum Levine, M. J. (1975), “Comparative Labour Relations Law”, Morristown, General Learning Press. London, M. & Smither. J.W. (1995), “Can Multi-source Feedback Change Perceptions of Goal Accomplishment, Self-evaluations and performance Related Outcomes? Theory-based Applications and Directions for Research”, Personnel Psychology, 48, pp. 803-839. Lefkowitz, J. (2000), “The role of interpersonal affective regard in supervisory performance ratings: A literature review and proposed causal model”, Journal of Occupational and Organizational Psychology, Vol. 73, pp. 67- 85. Page 23 of 27 Mathieu, J.E. & Zajac, D.M. (1990, “A Review and Meta-Analysis of the Antecedents, Correlates, And Consequences of Organizational Commitment”, Psychological Bulletin, Vol. 108, pp. 171-194. Murphy, K.R. & Cleveland, J.N. (1991), “Performance Appraisal: An Organizational Justice Perspective”, Boston, Allyn & Bacon. Murphy, K.R. & Cleveland, J.N. (1995), “Understanding Performance Appraisals: Social, Organizational and goal-based perspectives”, Thousand Oaks, Sage Publications. Murphy, K., Cleveland, J., Henle, C., Morgan, K., Orth, M. & Tziner, A. (1996), “Effects of proximal and distal context variables on performance appraisal quality: A model and framework for research”, Proceedings of fifteenth Biennial Applied Behavioral Sciences Symposium, US Air Force Academy, Colorado Springs, CO. Nathan, B.R., Mohrmann, A. M. & Milliman, J. (1991), “Interpersonal Relations as a Context for the Effects of Appraisal Interviews on Performance and Satisfaction: a Longitudinal Study”, Academy of Management Journal, Vol. 34, pp. 352-369. Patterson, F. (2001), “Developments in work psychology: Emerging Issues and Future Trends”, Journal of Occupational and Organizational Psychology, Vol. 74, pp. 381-390. Patrick, J. (1992), “Training: Research and Practice”, London: Academic Press. Stanton, J.M. & Rogelberg, S. G. (2001), “Using Internet/ Intranet Web Pages to collect Organizational Research Data”, Organizational Research Methods, Vol. 4 No. 3, pp. 200-217. Rousseau, D.M. (1995), “Psychological Contracts in Organizations, Understanding Written and Unwritten Agreements”, Thousand Oaks, Sage Publications. Schaubroeck, J., May, D.R. & Brown, F.W. (1994), “Procedural Justice Explanations and employee reactions to economic hardship: A field experiment”, Journal of Applied Psychology, Vol. 79, pp. 455-460. Tabachnik, B.G. & Fidell, L.S. (1996), “Using Multivariate Statistics (3 rd Ed.)”, Northridge, HarperCollins Publishers Inc. Thibaut, J. & Walker, L. (1975), “Procedural Justice: A psychological analysis”, Hillsdale, NJ: Hillbaum. Tyler, T.R. & Bies, R.J. (1990), “Beyond formal procedures: The interpersonal context of procedural justice”, In J.S. Carroll (ed.), Applied Social Psychology and Organizational Settings (pp.77-98). Hillsdale, NJ: Erlbaum. Tziner, A. & Murphy, K.R. (1999), “Additional evidence of attitudinal influences in performance appraisal”, Journal of Business and Psychology, Vol. 13, pp. 407-419 Williams, R.(1998), “Performance Management”, Institute of Personnel and Development, London. Page 24 of 27 List of Tables Table I: Outline of Procedural Justice Framework (based on Gilliland, 1993, Table 1, p.702) Classification Procedural rule Sample Item Comparable Terms from preceding Organizational Justice Frameworks Formal Characteristics (of the review and development process): Four items representing Job Relatedness: These referred to the perceived content validity of the review procedure The current format represents all the dimensions required to give an accurate and comprehensive review Accuracy (Leventhal, 1980) Three items representing Opportunity to Perform: Procedures are perceived as fairer if candidates have the opportunity to express themselves I had sufficient opportunity to describe or explain my recent achievements during my review/ development meeting Soliciting Input (Greenberg, 1986), Voice (Thibaut & Walker, 1975) Two items representing Reconsideration Opportunity: The opportunity to correct or challenge decisions made prior to or during the review process At points where my and the reviewer’s/ personal development champion’s views differed, there was ample opportunity for discussion Ability to Challenge (Greenberg, 1986) Two items representing Consistency: The way in which procedures are applied consistently across time and candidates I have had several meetings and they varied considerably in format over time (®) Consistency rule/ standard (Greenberg, 1986, Levernthal, 1980, Thibaut & Walker, 1975) Explanation: Four items representing Feedback: The timeliness and efficiency of feedback received I feel I was fed back too much information in one go Timely Feedback (Thibaut & Walker, 1975) Two items representing Development/Review Information: The provision of information and justification for the review/development process I was informed in a sufficiently clear and explicit manner about the format and aim of the development plan/ review procedure Explanation (Thibaut & Walker, 1975) Two items representing Honesty: The perceived openness of the feedback giver and the feedback received The person who reviewed me/ my personal development champion was honest and upfront with me Truthfulness (Bies & Moag, 1986) Interpersonal Treatment Three items representing Interpersonal Effectiveness: The communication skills of the feedback giver during the review/development process I did not feel that we ‘talked around issues’ but rather came straight to the point Respect (Bies & Moag, 1986) Three items representing Two-Way Communication: The opportunity for the feedback recipient to have own views considered Sufficient rapport was established between me and my personal development champion/ the person who reviewed me Two-Way Communication (Greenberg, 1986), Consider Views (Thibaut & Walker, 1975) Three items representing Propriety of Questions: how appropriate, non-intrusive and free from bias the review/development process is perceived I did not feel that all the issues discussed in my personal development meeting were relevant and necessary (®) Propriety of Questions (Bies & Moag, 1986), Personal Bias (Leventhal, 1980), Bias Suppression (Thibaut & Walker, 1975) Page 25 of 27 Table II: Observed Mean For Organizational Commitment (n=123) Commitment Scale Mean SD Cronbach’s α (Allen & Meyer, 1990) Cronbach’s α (present study) a) Affective Commitment 4.35 .82 0.87 0.4905 b) Continuance Commitment 2.73 1.19 0.79 0.7493 c) Normative Commitment 3.24 1.09 0.75 0.7388 Average Organizational Commitment 3.43 .74 Table III: Descriptive Statistics for Indicators of Perceived Feedback climate and Job Satisfaction (n=128) Mean SD a) Feedback satisfaction 3.82 1.65 b) Contact satisfaction 4.28 1.71 c) Perceived Company Support 4.41 1.67 Feedback Climate 4.15 1.36 Job Satisfaction 4.70 1.68 Page 26 of 27 Table IV: Rotated Component Matrix – Three-Factor Solution Procedural Justice Scale Review Rapport and Interpersonal Effectiveness Interference with Explanation Adequacy of Review Format and Characteristics Justice Rule I perceive a clear link between my review/personal development plan and my future development within my organization .838 Job Relatedness The current format is comprehensive enough to give me an accurate review .808 Job Relatedness The present review/ development system is suited to my job role .624 Job Relatedness The development meeting clearly pinpointed my strength and weaknesses and my areas for future development .653 .318 Opportunity to Perform I had sufficient opportunity to describe or explain my recent achievements during my review/ development meeting .585 Opportunity to Perform I was not given the chance to provide my own thoughts and input with regard to my future development .497 Opportunity to Perform At points where my and the reviewer's/ personal development champion's views differed, there was ample opportunity for discussion .709 Reconsideration Opportunity Our views with regard to my development plan diverged so much that we were unable to find a consensus -.303 .642 Reconsideration Opportunity I have had the chance to compare my review/ development meeting with others and there seemed to be some differences in format and content .505 -.404 Consistency I felt that my personal development champion/ the person who did my review conveyed that he/she really understands me .728 Feedback I feel I was fed back too much information in one go .754 Feedback I was given sufficient feedback with regard to the aims and future action steps of my personal development plan, both at the end of and after the review/personal development meeting .662 Feedback I was informed clearly and explicitly about the format and aim of the development plan/ review procedure .651 Development/ Review Information The person who reviewed me/ my personal development champion was honest and upfront with me .506 -.519 Honesty My personal development champion/ the person who reviewed me made me feel like an individual who matters .725 -.387 Interpersonal Effectiveness I was treated with warmth and respect by the person conducting my review/ personal development meeting .406 -.663 Interpersonal Effectiveness Sufficient rapport for a constructive meeting was established between me and my personal development champion/ the person who reviewed me .730 -.408 Two-way Communication I felt that I 'owned' the process and could drive my own review/development plan meeting .577 Two-way Communication My personal development champion/ the person who reviewed me was free of any personal bias .384 -.341 Propriety of Questions Some questions asked during my personal development meeting /review were more intrusive than I would have liked them to be .810 Propriety of Questions I did not feel that all the issues discussed in my personal development meeting were relevant and necessary .607 Propriety of Questions Page 27 of 27 Table V: Regression of Review Rapport and Interpersonal Effectiveness, Interference with Explanation and Adequacy of Review Format and Characteristics against Overall Fairness Rating (N=74, R Square 55%, 54% adjusted) B Std. Error Beta t Sig. (Constant) 4.243 .139 30.509 .000 Review Rapport and Interpersonal Effectiveness .662 .137 .383 4.840 .000 Interference with Explanation -.03 .138 -.022 -.283 .778 Adequacy of Review Format and Characteristics 1.166 .144 .640 8.082 .000 Table VI: Pearson’s r for Survey Measures a) b) c) d) e) f) g) a) Overall Fairness Rating r 1.00 N 80 b) Review Rapport and Interpersonal Effectiveness r 0.38** 1.00 N 75 76 c) Interference with Explanation r 0.00 0.00 1.00 N 75 76 76 d) Adequacy of Review Format and Characteristics r 0.64** 0.00 0.02 1.00 N 75 76 76 76 e) Organizational Commitment r -0.06 0.15 0.17 -0.13 1.00 N 78 74 74 74 123 f) Feedback Climate r 0.44** 0.28* -0.24* 0.31** 0.08 1.00 N 79 75 75 75 120 122 g) Job Satisfaction r 0.27* 0.35** -0.17 0.06 0.27** 0.59** 1.00 N 79 75 75 75 120 122 122 ** = Correlation is significant at the 0.01 level (2-tailed), * = Correlation is significant at the 0.05 level (2-tailed) 
work_teabr7gxrzdergjb6wd5uditmu	----	FJHR685310 689..690 Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=fjhr20 The International Journal of Human Rights ISSN: 1364-2987 (Print) 1744-053X (Online) Journal homepage: https://www.tandfonline.com/loi/fjhr20 Torture and the quest for justice Sir Emyr Jones Parry To cite this article: Sir Emyr Jones Parry (2012) Torture and the quest for justice, The International Journal of Human Rights, 16:5, 689-690, DOI: 10.1080/13642987.2012.685310 To link to this article: https://doi.org/10.1080/13642987.2012.685310 Published online: 15 Jun 2012. Submit your article to this journal Article views: 822 View related articles https://www.tandfonline.com/action/journalInformation?journalCode=fjhr20 https://www.tandfonline.com/loi/fjhr20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/13642987.2012.685310 https://doi.org/10.1080/13642987.2012.685310 https://www.tandfonline.com/action/authorSubmission?journalCode=fjhr20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=fjhr20&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/13642987.2012.685310 https://www.tandfonline.com/doi/mlt/10.1080/13642987.2012.685310 INTRODUCTION Torture and the quest for justice Sir Emyr Jones Parry∗ Chair of REDRESS Torture is recognised worldwide as one of the worst possible crimes. It is calculated extreme cruelty by those who are supposed to protect, and is meant to destroy the will of the indi- vidual and entire communities. Torture has been recognised not only as a crime under the UN Convention against Torture and related texts; the prohibition is recognised as a rule of customary international law that all states are bound to respect. It is morally wrong, under- mines the rule of law and justice, and manifestly does not work. Yet, it is still prevalent in many countries, and even some with strong systems of law resort to it. The response of some countries to the Arab Spring and the actions of the Syrian regime underlie this challenge. The lesson to me is simple. All countries need to recognise the illeg- ality of torture, to enact domestic legislation and procedures to prohibit it, and crucially to ensure compliance. The articles in this volume speak to the range of challenges facing torture survivors around the world: survivors are fighting to ensure that the horrific crimes they experienced are formally acknowledged, that the perpetrators are prosecuted and that they receive the remedies they deserve to move forward with their lives in dignity. None of these end goals should be beyond torture survivors’ reach; International law is clear on the obligations of states. Yet the survivors continue to have to fight for their rights, and to push against the walls of indifference, misunderstanding and fear. As will be seen by the different articles, the challenges to access justice and obtain effec- tive remedies for the harm suffered do not only characterise the regimes where torture is endemic and where there is an absence of the rule of law. These challenges extend to countries which otherwise have strong legal systems and human rights protections but, in the name of national security or in other circumstances of exception, have failed to enable certain individuals or groups to avail themselves of their rights. They also extend to regional and international courts and tribunals, which themselves can suffer under the weight of their responsibilities and their procedures – too many applications, too many needy victims. In all this, the survivors can be standing alone, on the outside of systems not designed with them in mind and more concerned with the theory of justice than in its practical application. Moreover, justice for survivors is a necessary element for creation of a peaceful, stable state. What drew me to REDRESS and what I believe is the organisation’s strength is its com- mitment to stand alongside the survivor and champion their fight for justice, no matter how long or hard the battle. As the articles in this volume reveal, the battles are not easily won, ISSN 1364-2987 print/ISSN 1744-053X online # 2012 Taylor & Francis http://dx.doi.org/10.1080/13642987.2012.685310 http://www.tandfonline.com ∗Email: emyrjonesparry@btinternet.com The International Journal of Human Rights Vol. 16, No. 5, June 2012, 689 – 690 but when there is progress, it tends to be groundbreaking. After 20 years of seeking justice for survivors of torture and working to eradicate the practice worldwide, how will REDRESS move forward? By re-doubling its efforts in the fight against torture, and by con- tinuing to work, methodically, to break down each and every barrier that continues to impede access to justice. The job is not done, though we have come a long way. I am grateful to Michael Birnbaum QC, Carla Ferstman and Lutz Oette for their work in pulling this volume together. 690 E. Jones Parry << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles false /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Tags /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize false /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage false /PreserveDICMYKValues true /PreserveEPSInfo false /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Remove /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 400 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /Description << /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e9ad88d2891cf76845370524d53705237300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc9ad854c18cea76845370524d5370523786557406300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /DAN <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> /DEU <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> /ESP <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> /FRA <FEFF005500740069006c006900730065007a00200063006500730020006f007000740069006f006e00730020006100660069006e00200064006500200063007200e900650072002000640065007300200064006f00630075006d0065006e00740073002000410064006f00620065002000500044004600200070006f0075007200200075006e00650020007100750061006c0069007400e90020006400270069006d007000720065007300730069006f006e00200070007200e9007000720065007300730065002e0020004c0065007300200064006f00630075006d0065006e00740073002000500044004600200063007200e900e90073002000700065007500760065006e0074002000ea0074007200650020006f007500760065007200740073002000640061006e00730020004100630072006f006200610074002c002000610069006e00730069002000710075002700410064006f00620065002000520065006100640065007200200035002e0030002000650074002000760065007200730069006f006e007300200075006c007400e90072006900650075007200650073002e> /ITA <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> /JPN <FEFF9ad854c18cea306a30d730ea30d730ec30b951fa529b7528002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b4f7f75283057307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a306b306f30d530a930f330c8306e57cb30818fbc307f304c5fc59808306730593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020ace0d488c9c80020c2dcd5d80020c778c1c4c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor prepress-afdrukken van hoge kwaliteit. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /PTB <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> /SUO <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> /SVE <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> /ENU (Use these settings to create Adobe PDF documents best suited for high-quality prepress printing. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToCMYK /DestinationProfileName () /DestinationProfileSelector /DocumentCMYK /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles false /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_tf3zv4dkrnff3i4ficwsbbnhey	----	Social position, ideology, and distributive justice Social Justice Research, Vol. 8, No. 4, 1995 Social Position, Ideolo , and Distributive Justice L e o d ' A n j o u , 1~ A b r a m Steijn, I a n d D r i e s Van A a r s e n 1 This paper addresses two important questions regarding distributive justice. First we ask whether people use standards or principles o f distributive justice regarding the allocation o f income. The study confirms our expectation that there are at least two principles, viz., the merit and the need principle. Our data show that there is no generally held consensus about the applicability o f these two principles. Second, we looked for explanations to explain variations in adherence to these principles. The literature suggests five different theses: 1. self-interest; 2. ideology; 3. enlightenment; 4. historical shift; and 5. gender. Results provide qualified support for the Theses 1, 2 and 4. Class, ideology, and age affect the preferences for the principles o f justice. Further elaboration suggests the data point to a specific version o f the self-interest thesis, viz., the underdog thesis. Theses 3 and 5 are not confirmed. Implications o f these findings are discussed. KEY WORDS: distributive justice; merit; need; class; ideology. INTRODUCTION "Justice is a central moral standard in social life...the issues it ad- dresses are fundamental to social life" (Cohen, 1986). One of the central issues in the discussion on justice concerns the distribution of the benefits and burdens of living together. In this distribution people expect to get what their equals get (Homans, 1961, 1974) or in the words of Berger et al. (1972, p. 144): "the essential idea [of distributive justice] is that actors who are 1Erasmus Universiteit, Rotterdam, The Netherlands. 2All correspondence should be sent to L. J. M. d'Anjou, Sociale Faculteit, M 05-10, Erasmus Universiteit, Postbus 1738, 3000 DR Rotterdam, The Netherlands. 351 0885-7466/95/1200-0351507.50/0 �9 1995 Plenum Publishing Corporation 352 d'Anjou, Steijn, and Van Aarsen similar in terms o f socially defined and valued characteristics expect to be similar in their rewards." For this expectation they compare what they p u t into social l i f e - - i n Homans's words: their investments and costs--with w h a t t h e y get o u t o f i t - - t h e i r rewards. These input--outcome comparisons are based on referential structures (Berger et aL, 1972) which contain informa- tion on w h a t is regarded as an input and what as an outcome and w h a t the social value o f those inputs and outcomes is. These structures function as standards o f entitlement (Lerner, 1987). They define what people in certain situations o r with certain characteristics are entitled to or deserve. Research on distributive justice shows that people actually use consen- sually held referential structures or justice rules (Cook, 1975) in evaluating the distribution of valued resources, such as love, status, and different kinds o f goods (T6rnblom and Foa, 1983). Such rules are also used when the dis- tribution o f income is evaluated (Jasso and Rossi, 1977; Alves a n d Rossi, 1978; H e r m k e n s and Boerman, 1989). Although in the "income-justice" stud- ies references are often made to underlying principles of justice, such as n e e d or merit, the existence of such principles is only assumed, not assessed. In this paper we look into the question of whether people use principles like merit or n e e d regarding the distribution or allocation of income. T h e second question in this study concerns consensus itself. Is there a consensus o n the applicability o f these justice principles or are there dif- ferences in this respect between individuals o r groups in society? E a r l i e r research (Alves and Rossi, 1978; Berting et al., 1986) indicated t h a t indi- viduals with a higher income are more inclined to allocate income on the basis o f criteria reflecting merit considerations while those with a lower i n c o m e o p t for n e e d criteria. H e r m k e n s a n d B o e r m a n (1989), however, f o u n d a less clear division in preferences for allocation criteria. All in all, it seems t h a t the position of individuals in society m a y affect the p r e f e r e n c e for justice criteria and principles. A problem with the a f o r e m e n t i o n e d stud- ies is t h a t societal position is m e a s u r e d only by income. In this p a p e r we also take class as a measure for assessing the location o f individuals in the societal structure because class still seems to be i m p o r t a n t as a d e t e r m i n a n t o f attitudes a n d preferences (Marshall et aL, 1988). A t the same time we acknowledge that class and income explain only a limited p a r t o f the variation in preference for justice rules and principles. I n research o n distributive justice, 3 therefore, o t h e r d e t e r m i n a n t s are p u t 3We refer here also to studies on the question how people justify existing inequalities, because judging these as just and fair is another way of expressing opinions and judgments on the fairness or justice of the distribution of economic resources. In other words, economic equality is the mirror image of social justice or as Rytina (1986) stated: "The dominant problematic of justice in sociology is an interplay of inequality and sentiment that supports or undermines it." Social Position, Ideology, and Distributive Justice 353 forward. As Shepelak (1989) shows, ideological beliefs play a role as well. Beliefs connect background variables, such as occupation, income, and edu- cation, with the evaluation of inequality. Robinson and Bell (1978) came to the same conclusion. They, moreover, took enlightenment (measured by education) and a historical shift to egalitarianism (measured by age) as i n d e p e n d e n t variables into their analysis. Finally, the work of Gilligan (1982) suggests that men and women differ in their judgments of justice questions. The foregoing suggests that there might not be a consensus re- garding the application of justice criteria. In this paper we assess whether this is the case and, if there is no consensus, we look into an explanation for this lack of consensus. In summary, this paper addresses the following questions: (i) Do people use standards or principles of justice regarding the allocation of income? (ii) Is there a consensus regarding the applica- bility of these principles and, if not, which explanations of this lack of con- sensus are the most promising? THEORETICAL FRAMEWORK This section on theory is divided into two subsections following the two questions above. First, we elaborate the concept "distributive justice principle" and the two principles, merit and need, that we use in our study. Second, we develop five theses, each of which puts forward a (partial) ex- planation of why people differ in their preferences for the merit and the n e e d principles of justice. Finally, we bring these five theses together in a conceptual model. Distributive Justice Principles: Merit and Need Specific justice principles are part of a more encompassing concept o f justice. One of the problems in the literature on justice, however, is the lack o f conceptual clarity and theoretical unity (Cook, 1987). Bell and Schokkaert (1992), e.g., point out that the concept of equity has a different meaning in psychology, economics, and law. As there are also important terminological confusions (see Footnote 4), it is necessary that we make clear what we mean by "justice principle" and so clarify the topic of this paper. Justice is a container concept and "seems to mean different things to different people and in different circumstances" (T6rnblom, 1992, p. 177). As T6rnblom contends, it lacks a distinctive or "true" meaning. The concept "distributive justice" is, however, less indistinct and refers, in gen- 354 d'Anjou, Steijn, and Van Aarsen eral, to a just state of affairs concerning the distribution of benefits and burdens (Miller, 1976; Rawls, 1973). Such a distribution is perceived as just or fair if it is regulated by accepted rules. At this point, distributive justice is often equated with equality; a usage that, as Hochschild (1981) rightly remarks, "blurs concepts that should be kept separate." In the sphere of distributive justice equality is either absolute or strict equality, i.e., the gen- eral rule that "all people may legitimately make the same claims on social resources" (p. 46), or relative or bounded equality, i.e., the general rule that "equals must be treated equally and unequals unequally" (Aristoteles, citated in Cullen, 1992, p. 15). The latter means that making differences o f some kind does not turn a particular distribution into an unjust one. Hochschild, moreover, pointed out that people accept some form of dif- ferentiation as the guiding rule in economic affairs. Distributive justice regarding the allocation o f income, primarily an economic affair, thus concerns the specific rules or norms that make an allocation a just one. There are two sets of these rules, viz., substantive and formal ones (Cohen and Greenberg, 1982; Buchanan and Mathieu, 1986). The first set contains the rules that state which differences (acts or attributes) between people are deemed relevant for the allocation o f in- come. It represents, in Hamilton and Rytina's (1980) words, the domain of inputs. The second set consists of the rules that state the way in which these differences are translated into differences in income; in Hamilton and Rytina's terminology, the linkage rules. Homans's notion of proportionality between investments and profits which "lies at the heart of distributive justice" points to the formal side of distributive justice (1961, 1974). Proportionality is a formal rule that in a quantitative way links the domain of inputs to the domain of outcomes, in our case income. Markovsky (1985) made the same distinction in this re- spect, viz., between scales of rewards and investments and a referential rule such as proportionality (see also Schaeffer's distinction between material and procedural operands and a referential rule such as proportionality which is, however, not the only possible linkage rule; Schaeffer, 1990). Pro- portionality can be formulated as y(x), where y is the outcome, e.g., income, and x an input, i.e., an attribute, such as education, which justifies a dif- Outcomes Inputs Outcomes Inputs Person A ~ Person A Person B m Person B Person B [ k B Person A I kA I Inputs J Inputs Fig. 1. The "Walster" equity formula. Social Position, Ideology, and Distributive Justice 355 ferent outcome. This proportionality rule is elaborated in the equity tradi- tion within social justice research and formalized in equity formulas, such as the one devised by Walster and Walster (1975) (Fig. 1). In this paper, however, we are not concerned with the formal prin- ciple of proportionality but with the substantive side of distributive justice or with the differences that people think may legitimately lead to differ- ences in income; in Homans's (1961) words: "[people's] ideas of what le- gitimately constitutes investment, reward, and cost, and how these are to be ranked" (p. 246). Above, we have referred to these ideas as distributive justice rules. The acceptance or rejection of each of these rules is, as stated in o u r Introduction, not based on strictly individual preferences but is guided by consensually held principles or referential standards. 4 These dis- tributive justice principles underlie the choice or preferment of specific rules out of a multitude of rules regarding the attributes and acts of people that are considered to be relevant for the distribution o f income. More specifically, the choice concerns social status characteristics, such as sex and occupation; investments, like education or initiative; and need considera- tions, like being handicapped or number of dependent children. This paper, now, regards these substantive principles of distributive justice. Generally, three of these substantive principles of justice are stated, viz., equality, merit, and need (Homans, 1982; Tornblom and Foa, 1983). Equality is, however, a problematic concept because like justice, it has no clear meaning. It is sometimes formulated as the preference for a more egalitarian distribution of resources (see, e.g., Ritzman and Tomaskovic- Devey, 1992). Others refer to equality as an end that must be reached as is the case with equality of opportunity. Regarding the allocation of income, equality means, as we have stated above, relative equality or differentiation between people according to accepted differences between them. It, thus, means that people may legitimately state varying claims on the amount of i n c o m e t h e y (ought to) receive based on d i f f e r e n c e s b e t w e e n t h e m 4The terminology on the input side of distributive justice is rather confusing. Deutsch (1985), for instance, discerns values of justice, such as equity, equality, and need, and rules or criteria for defining the values. Berger et aL (1972) refer to these values as referential structures (referential standards in the terms of Alwin, 1987) which provide the basis for defining the meaning of relevant characteristics. Others make the same distinction while using other terms. Cook (1975): distribution rules and dimensions of evaluation, such as seniority, skill, level of need, age, etc.; Hochschild (1981): norms of justice which form the basis for specific allocation decisions; Homans (1961, 1974, 1982): rule or rules of distributive justice and criteria such as investments and costs; Jasso and Rossi (1977) and Alves and Rossi (1978): principles and criteria of justice, etc. In this paper we will use "criteria" when we refer to the characteristics o f people or of the situation in which they find themselves that are relevant for allocation o f income, criteria such as education, initiative, seniority, age, or number o f dependent children. The term "principle" is used when we refer to the dimension underlying the choice or preferment of these criteria. 356 d'Anjou, Steijn, and Van Aarsen (Hochschild, 1981). Following Hochschild, we try to avoid terminological confusion and use the term "equality" for denoting strict equality. This implies in our case that equality is not a suitable substantive principle of justice; only "differentiation" principles count. There are, in view of the allocation of income, two kinds of differ- ences that may be accepted as the foundation of varying amounts of in- come. First, there are differences in social contributions which ought to be rewarded, leading to allocation of income "to each according to his deserts" (Miller, 1976). We call this the "merit" principle. Second, there are differ- ences that ought to be compensated because all human beings have a right to exist "regardless of their inputs" (Schwartz, 1975). This leads to alloca- tion of income "to each according to his needs" (Miller, 1976)--the " n e e d " principle. Allocation: To Each According to His Deserts--The Merit Principle. This justice principle justifies differences in income by pointing to the different contributions people make (or are perceived to make) in producing goods, services, and other valued things. Central to this concept of justice is the notion of contribution or merit, which means that differences in contribu- tion to the social product ought to be rewarded. The merit principle depicts which of the different attributes or characteristics of people should be seen as relevant differences in contribution and should therefore be considered when allocating income. This concerns among other things differences in education, initiative, or taking responsibility. Together, all those things that are assumed to enhance productivity. Allocation: To Each According to His Needs-- The Need Principle. T h e need concept of justice acknowledges that people differ in their abilities to earn an income that will allow them and their family to live in a decent way. These differences in ability ought to be compensated for by giving those people more than they would receive in a completely free market situation. The allocation is thus based on the needs people have. Important in this respect are considerations regarding the level of social security bene- fits, the importance of being employed for the entitlement to an income, o r the higher costs of being ill or disabled. Distributive Justice: Five Theses In the foregoing subsection we have stated that the allocation of in- come is evaluated as being fair if in this allocation accepted rules are used. In this subsection we begin by assuming that people differ with regard to the question which rules are acceptable and that these differences reflect differences in preference for the merit and the need principles o f distribu- Social Position, Ideology, and Distributive Justice 357 tive justice. The question is then what determines these different prefer- ences. In the literature five theses are suggested that explain why people differ in their preferences for the merit and the need principles. These are (1) the self-interest thesis; (2) the ideology thesis; (3) the enlightenment thesis; (4) the historical shift thesis; and (5) the gender thesis. These theses are elaborated below. Two of these theses, i.e., self-interest and ideology, require more attention because they employ class and ideology concepts that are widely disputed. Self-Interest Thesis This thesis states a direct relationship between one's position in the social structure and one's attitudes. As such it originates in the work of Marx and Engels (1984) and Weber (1968) and is studied, among others, by Goldthorpe et al. (1969), Huber and Form (1973), Mackenzie (1973, 1974), Lockwood (1975), Robinson and Bell (1978), Kluegel and Smith (1986), Marshall et al. (1988), Grimes (1989), Svallfors (1991), Evans (1993). The thesis is also known as the structural theory (Mackenzie) or the underdog principle (Robinson and Bell). Robinson and Bell (1978, p. 128) who studied social judgments about the fairness or unfairness of in- equality, state the essence of this thesis as follows: "individuals who objec- tively benefit from the stratification system in comparison with others are more likely to judge its inequalities to be just. Conversely, people who are objectively less well off are more likely to judge equality to be fair, since [this]...would result in their receiving more societal goods." This means that people have interests following from their location in the social struc- ture and that these interests affect the way in which people justify allocation rules (or criteria). They accept a rule as legitimate and just if the rule con- curs with their interests. The locations in the societal structure, the social positions, are often conceptualized as class positions. As class is a disputed concept, we further elaborate this concept. A more straightforward way of assessing one's social position is taking income as the indicator of this position. Research (Alves and Rossi, 1978; Berting et al., 1986; Shepelak. 1989) indicates that this may even reflect interests with respect to the allocation of income more clearly than class and thus we also use income as an indicator of social position. According to an important study, class is still a very important factor in shaping people's attitudes. Marshall et aL (1988, p. 267) explicitly state that "social class is to the fore among conceptions of collective identity. It Js still the case that important differences in shared beliefs and values 358 d'Anjou, Steijn, and Van Aarsen are structured more obviously by class than by other sources o f social cleavage." T h e precise relationship between class and the p r e f e r e n c e for the merit or n e e d principle is, however, less clear. T~vo reasons explain this: O n e is that although there is abundant research into the relationship between class and images of society, class is not often studied in relation to distributive justice. The second reason is the difficulty to p r o d u c e a class concept that is generally accepted in the scientific community. According to Wright (1979) there are three main class concepts: the American class concept based on gradation in the status of occupations; the Marxist class concept based on different relations in the sphere of pro- duction; and the Weberian concept of class based on different life chances in the economic (market) domain. The m a n n e r in which the stratification system of m o d e m society has developed poses two important problems for each of these concepts. The first problem concerns what Wright (1989) calls "the embarrassment of the middle classes." A class concept has to accom- modate both the quantitative growth of the middle classes and its diversi- fication. The second problem is a consequence o f how class position is commonly measured, viz., by occupation. As Drudy (1991, p. 26) states: "This obviously becomes increasingly a problem in an era of mass unem- ployment." A n appropriate class concept must also accommodate the grow- ing group of social security benefit recipients. Weber's work on class in our view gives ample opportunity for devis- ing a class concept that meets these problems. First, Weber (1968) speaks o f a class situation when a number of people have in common a specific causal component of their life chances (the capability to dispose of material property or the possession of marketable skills) in the sphere of economic market relations. Weber's extension of the Marxist class concept with its emphasis on property relations with the skill component may lead to a class concept especially suited for the incorporation of the so-called new middle classes. Second, it is not very difficult to apply Weber's class concept to the existence of those who do not derive their position from a place in the domain o f production, i.e., the recipients o f social security benefits. This would simply mean adding a third causal component, viz., a legal right to income--Reich's (1964) new property. Although, it would not be impossible to incorporate this "new" class position in either the American class con- cept or in a Marxist one, this would mean bending these concepts more than is necessary with Weber's class concept. Summarized, the self-interest thesis is based on the idea of different interests deriving from positions in the social structure each with it own justification. Some assets, such as property or marketable skills, give their possessors better life chances in the form of higher incomes "and other so- cial rewards. They tend to justify their advantages by pointing to the con- Social Position, Ideology, and Distributive Justice 359 tributions to society they provide with these assets (the merit principle of justice). It is in their interest that the rewarding of their assets and the related justification remain as they are. Those who are less f o r t u n a t e - - t h e underdogs--will self-evidently tend to disagree. They will put other char- acteristics, theirs, forward as the basis for differences in social rewards and propose another justification. As the underdogs are less able to make a living with their assets they will benefit by emphasizing compensations for their deficits (the need principle). More specifically, the self-interest thesis predicts that the better one's class position in terms of life chances the more one will prefer the merit principle and the worse one's class position in this respect the more one will prefer the need principle. (Class is further elaborated and operationalized in the Methods section below.) The thesis also predicts that those with a higher income will prefer the merit principle and those with a lower income the need principle. Ideology Thesis This thesis is in fact a refinement of the self-interest thesis. Some researchers have pointed out that the supposed direct relationship between social position and attitudes is far to simple (Davis, 1979; Graetz, 1986). This assumed direct linkage ignores the fact that in daily life people use beliefs to interpret and evaluate reality and guide their actions. Beliefs function as cognitive frameworks (Smith and Stone, 1989) which provide rationales for people to cope with the situations in which they find them- selves (Robinson and Bell, 1978). Beliefs can either be conceived as a broad concept encompassing values, perceptions, and attitudes, as Kluegel and Smith (1981) do, or as a more limited concept in which the use of the term belief is restricted to elements on the more general or abstract level of a culture, the ideological level. In the latter case these generalized ideo- logical beliefs convince people that what exists is right and hence shape and organize their attitudes and preferences which are related to specific and concrete phenomena (Shepelak, 1989), i.e., the more mundane level of daily existence. In this paper we opt for the limited concept in which a distinction is m a d e between ideological beliefs on a general level and specific attitudes and preferences. There is an important difference between the two levels. Beliefs affect attitudes and preferences, but they do not determine them because ideological beliefs--as Weakliem (1993) points o u t - - o n l y affect "the probabilities of holding different opinions [and attitudes and prefer- ences] by making some choices seem more plausible and natural than oth- e r s " (p. 384). A g r e e m e n t with s o m e a b s t r a c t idea d o e s n o t imply 360 d'Anjou, Steijn, and Van Aarsen c o m m i t m e n t to specific concurring outcomes or policies (Rafferty and Hasenfeld, 1992). We, thus, discern on the one hand a set of beliefs con- cerning the way the economic system works (and which is judged as right) and on the other the guidelines people use in evaluating the allocation of income. The first we call--following H u b e r and Form (1973)--ideology and the second the principles of distributive justice. Ideology is in turn affected by the structural position of people, indi- cated by other variables such as income, class, gender, and race ( H u b e r Rytina et aL, 1970; H u b e r and Form, 1973; Robinson and Bell, 1978; Kluegel and Smith, 1986, Shepelak, 1989). Through this double relationship (i.e., social position - - - - > ideology; and ideology - - - - > justice principle) ideo- logical beliefs connect people's social position to specific attitudes concern- ing inequality (see Robinson and Bell, 1978; Shepelak, 1989). As Rafferty and Hasenfeld (1992) state: "There is evidence that one's economic and social position accounts for one's beliefs and endorsement of government responsibility in solving social problems and commitment to the more spe- cific principle that individuals are entitled to a basic standard of living" (p. 512). We assume that ideology plays the same connecting role with respect to justice principles. Concerning the way the economic system works and how it affects the allocation of income (and ought to) there are several sets of ideologi- cal beliefs. Robinson and Bell (1978), e.g., find that in England the belief in a just society and in the United States the belief in monetary success dominates. Hasenfeld and Rafferty (1989), on the other hand, contend that in Western welfare states two contrasting sets of ideological beliefs are in competition with each other. On the one hand, there is the belief in t h e a b u n d a n c e o f o p p o r t u n i t y and in the virtue o f individualistic achievement ( H u b e r and Form, 1973; Kluegel and Smith, 1986) and on the o t h e r hand the belief in solidaristic sharing as a way to get a more equal and fair allocation of society's resources (Parkin, 1974; Shepelak, 1989). 5 In this study we have chosen to explore the role of one of these sets, especially with a view to the development of an instrument which ade- quately measures the ideological stance of people. Hereto, we have taken the lead of H u b e r and Form and of Kluegel and Smith and have taken as a starting point the view that our society is characterized by the openness of its structure of abundant opportunities. To make such a structure work 5About the same contrasting sets of beliefs can be inferred from the study of Ritzman and Tomaskovic-Devey (1992) if their equity and equality distribution rules are considered as ideological beliefs. In view of the way they have measured these rules this seems to be the case; at least they differ in level of generality and abstraction considerably from the justice principles we discern in this study. Social Position, Ideology, and Distributive Justice 361 people have to be as free as possible and government has to intervene as little as possible. We have here the ideology based on Adam Smith's hidden hand and we refer to it as the free market ideology. The outcome of this structure of opportunities, i.e., the allocation of income, is the responsibility of individuals and thus depends on their efforts. It is only logical that those who adhere to this ideology tend to favor allocation of income on grounds of merit and that those who disagree tend to be in favor of need consid- erations. With regard to income, we predict that the higher the income the higher the adherence to the free market ideology and the lower the income the lower this adherence will be. We also predict that the better one's class position the more one will adhere to the free market ideology and the worse this position is the lower this adherence will be. Finally, we predict that the more one adheres to the free market ideology the more one will prefer the merit principle and the less one adheres to the free market ide- ology the more one will prefer the need principle (for the predictions with respect to the other variables see below). Enlightenment Thesis This thesis is formulated by Robinson and Bell (1978). In their re- search they assume that through education people become more familiar with the major values and themes of Western Civilization upon which the Enlightenment has left a heavy mark. As they put it: "The history of demo- cratic revolutions--and evolutions--implies equality in a variety of ways, remains a charter myth of these societies, and is taught the young as sacred past" (p. 128). This led them to suppose that the higher educated will be m o r e in favor of equality than the lower educated. They find confirmation for this assumption in England but not in the United States. If this research finding is valid, it means in our case that the more education people have the less they will prefer the free market ideology and the merit principle o f justice and the more they will be in favor of the need principle. Historical Shift Thesis Robinson and Bell (1978) also assume that there has been a historical shift toward an egalitarian Zeitgeist. They derive this assumption from a p a p e r by Beteille on the decline of social inequality and substantiate it with instances from England and the United States indicating such a decline. Accordingly, Robinson and Bell predict that younger people are more in support of equality. In their study, their hypothesis was supported by the 362 d'Anjou, Steijn, and Van Aarsen data in the U n i t e d States, but not in England. In our case this thesis pre- dicts that the younger people are the more they will disagree with the free m a r k e t ideology and the related merit principle and the more they will prefer the n e e d principle of justice. Gender Thesis According to some research findings m e n and w o m e n are assumed to differ with respect to the ethic they use w h e n judging justice questions (Gilligan, 1982). Men use an "ethic of justice" which leans m o r e to the free m a r k e t ideology and the merit principle and w o m e n use an "ethic of care" which is less in agreement with the this ideology and m o r e in ac- cordance with the need principle of justice. D i s t r i b u t i v e J u s t i c e : T h e C o n c e p t u a l M o d e l In the foregoing we elaborated five theses that state the relationships between class, income, education, age, and g e n d e r - - t h e i n d e p e n d e n t vari- a b l e s - o n the one hand and the preferences for the merit and n e e d prin- ciples of j u s t i c e - - t h e dependent variables--on the other. We have also gone into the role that ideology, the free market ideology in o u r case, may play in this set o f relationships. We came to the conclusion that the free m a r k e t ideology is to be expected to affect the preference for one o f the two justice principles and is probably at its turn affected by the i n d e p e n d e n t variables. Class I n c o m e ~ . . Ideology ~" Justlce ~ Principle Education Age Gender Fig. 2. Conceptual model. Social Position, Ideology, and Distributive Justice 363 This m e a n s it functions in the conceptual model as an i n t e r m e d i a t e vari- able. In Fig. 2 we depict the relationship m e n t i o n e d above in the form of a conceptual model which use as the theoretical model for o u r path analy- sis. M E T H O D D a t a D a t a for this study come f r o m a larger study into The Conditions for a Municipal Policy of Societal Renewal (Bons, 1992) c o n d u c t e d in 1991 by g r a d u a t e students in sociology as part o f a research training program. T h e survey was designed by the staff o f the p r o g r a m (of which the second a n d t h e third a u t h o r were members) w h o also executed the sampling proce- dure. T h e d a t a were g a t h e r e d in a survey in which the r e s p o n d e n t s were selected by means of a random-digit dialing p r o c e d u r e f r o m the g r e a t e r R o t t e r d a m area, a metropolitan area. 6 This p r o c e d u r e resulted in a prob- ability sample of 461 respondents o f which 316 r e s p o n d e n t s were inter- viewed. 145 respondents (31%) could n o t be reached at their h o m e or r e f u s e d to participate. We have restricted the sample for analysis in this study to r e s p o n d e n t s w h o are currently employed or who are receiving a social security benefit. This is a consequence of the way in which the class variable in this study is conceptualized and operationalized (see also below). We have, therefore, excluded the following categories from the original sample: (i) housewives (61) because they do not occupy a position in the class scheme we used in this study (see below); (ii) full-time students (25) who receive a govern- m e n t a l grant; and (iii) pensioners (60) over 65. In the N e t h e r l a n d s their i n c o m e consists (wholly or partly) o f a special governmental r e t i r e m e n t benefit (A.O.W.). Although both students and pensioners receive some kind o f social security benefit, their situation is n o t comparable to the situation o f those who are forced out of the work force because o f lack o f jobs or illness. This resulted in a sample o f 170 respondents o f which 138 were with a n d 32 without a job. 6This area consists of Rotterdam, Schiedam, Vlaardingen, Hock of Holland, and Capelle a/d Llssel which are part of the same telephone district. The random generation of the telephone numbers which all begin with a 4 and consist of seven digits was based on a specially developed random number generating computer program. This program was devised by another member of the staff, J. Braster. 364 d'Anjou, Steijn, and Van Aarsen Measures In the survey the respondents were asked which criterion they pre- ferred regarding the allocation of income. The interview also contained questions about occupation, ideology, and background variables such as age, sex, education, and income. The measures used in this study are pre- sented below. Class Position We mentioned before that class can be measured in several ways. O n theoretical grounds we prefer a measurement along Weberian lines but we find Weber's class concept too indefinite for fruitful use in research. One o f t h e b e s t - k n o w n e l a b o r a t i o n s o f this class c o n c e p t is t h e o n e by Goldthorpe (1980) which is, according to Marshall et aL (1988), on theo- retical, methodological, and empirical grounds to be preferred to o t h e r - - r i v a l - - c o n c e p t u a l i z a t i o n s o f class. We t h e r e f o r e - - w i t h a s l i g h t modification--use Goldthorpe's conceptualization. Goldthorpe's premise is the same a s Weber's, viz., people differ with regard to the possibilities they have in securing their life chances on the market. Goldthorpe discerns the following differences: the source and level o f income, security of employment, chances on promotion, location within systems of authority and control, and degree of autonomy in performing the work tasks. On the basis of these differences Goldthorpe arrives at seven classes. We use his classification which we complement with an eighth category, the class o f social security recipients. Gotdthorpe and Payne (1986) did the same. They added a comparable category at the bottom of the Goldthorpe seven-class scheme, viz., the category of the unemployed, a class category which in their view contains positions lower than working-class positions. This gives us the following classification scheme: I. Higher-grade professionals, administrators, and officials; managers in large es- tablishments; large proprietors. These occupations give high and secure incomes, prospect of promotion, authority, control and autonomy. II. Lower grade professionals, administrators, and officials, higher-grade technicians; managers in small establishments; supervisors of nonmanual employees. These oc- cupations score lower--but still relatively h i g h - - o n the above-mentioned criteria than the Class I occupations. III. Routine nonmanual employees in administration and commerce and personal service workers. The so-called routine white collar workers. These occupations are relatively low in income, but relatively secure, and offer some chances of promotion. They derive some status from the association with the Class I and II occupations. They are, however, low in authority, control and autonomy. IV. Small proprietors, artisans, farmers, fishermen, etc. Together these categories Social Position, Ideology, and Distributive Justice 365 form the petit bourgeoisie. The market situation, i.e., income and economic security, of these occupations is variable and may easily change due to economic circum- stances. At the same time, however, people in this class have a high degree of autonomy. V. Lower-grade technicians; supervisors of manual workers. The "blue-collar elite." Their incomes are relatively high and secure and their chances of promotion limited. They have some degree of authority, control and autonomy although this is re- stricted by the supervision exercised by people in higher hierarchical positions. VI. Skilled manual workers. They have higher incomes than Class VII workers but few chances of promotion, and not much authority, control, and autonomy. VII. Semiskilled and unskilled manual workers; agricultural workers. These occu- pations score the lowest on all criteria of all the occupations in society. VIII. Social security recipients. They generally have a low income which proves to be insecure due to government policies of budget cuts and they have few prospects of escaping from their marginal position. Goldthorpe's scheme is adopted to the Dutch situation by Ganze- b o o m et al. (1987) and requires information on the occupation o f the re- spondent and on his or her employment status: i.e., self-employed (and in that case how many employees); wage earning (and in that case h o w many subordinates); or social security benefit recipient (and in that case what kind o f benefit). Table I gives the distribution of the respondents across the eight class categories. The use of Goldthorpe's class scheme poses an important problem for our predictions regarding the effect o f class on the principles o f dis- tributive justice and ideology. These predictions assume some kind of hi- erarchy in the distribution o f life chances. Goldthorpe (1980), however, made clear that his "class schema should not be regarded as having a con- sistently hierarchical form" (p. 42) mainly because the life chances o f the members of the Classes III, IV, and V are difficult to compare with each other. On the other hand, he shows that there is a hierarchy in the distri- bution o f life chances running from "good" to "poor" if classes are taken together, e.g., class positions I and II are comparable in terms o f life Table I. Frequency of Respondents by Class Position Class No. of position Occupational title incumbents % I Managing/administrative elite 23 14 II Middle management/supervisors 41 24 III Routine white collar 27 16 IV Small proprietors 9 5 V Supervisors manual 7 4 VI Skilled manual 15 9 VII Semi- & unskilled manual 16 9 VIII Social security recipients 32 19 Total 170 100 366 d'Anjou, Steijn, and Van Aarsen chances--relatively g o o d - - a n d the same applies for class positions VI and VII whose chances are relatively poor. Following Goldthorpe's lead, we have put the eight classes in a more global hierarchical order and are thus able to formulate our predictions more precisely. 7 Respondents in Class I and II will be most in favor o f the merit principle and the free market ideology and less in favor of the need principle; conversely, the respondents in Class VIII will favor the need prin- ciple most. They are less in favor of the merit principle and the free market ideology. The incumbents of class positions III, IV, and V, on the one hand, and those of class positions VI and VII, on the other, will show preferences that lie between these extremes. More precisely, respondents in Class III, IV, V will show preferences that resemble more those o f Class I and II respondents, while respondents in Class VI and VII will show preferences that resemble those of Class VIII. Income. This independent positional variable is operationalized as net income in Dutch guilders per month. It is measured in intervals o f 200 guilders. Education. The third independent variable is operationalized as the level of education. In the Dutch situation, this means that each level of education represents the number of years a respondent has spent in the educational system. The variable was measured as follows: elementary school not finished, score 1; elementary school, 2; lower vocational educa- tion, 3; secondary school (lower level), 4; secondary school (higher level), 5; intermediate vocational education, 6; higher vocational education, 7; and university, 8. Age is operationalized as the year of birth and recorded so that the older the respondent is, the higher the score. Gender is operationalized as a dummy variable in which female = score 1. 7There is also a methodological problem arising from the fact that the classes do not form an explicit hierarchy. It is now impossible to simply use one variable "class position" in the analysis. We, therefore, use dummy variables. The dummies represent seven o f the eight categories of class; Class I is omitted and serves as the reference category. In the path analysis the dummy variables are replaced by a quantitative variable which is the linear combination of the dummies representing class position. We follow here the procedure as described by Rossi and Anderson (1982, p. 64). In this procedure, also called "coding proportional to effect," the mean o f the deleted class category becomes the constant and every other category receives the scale value o f b o + bkX k Cok -- the partial regression coefficient attached to each of the k categories). The explained variance (R 2) o f the combined variable remains the same as that o f the dummy variables. The raw regression coefficient becomes 1.00 and the beta coefficient o f the combined variable is used to measure the proportion of the variation in the dependent variable accounted for by all class categories. This way the effect o f class is comparable to the effects o f the other variables in the analysis. The sign o f the beta coefficient has no substantive meaning as it is positive by definition. Social Position, Ideology, and Distributive Justice 367 Ideology. F r e e m a r k e t ideology is s e e n as an i n t e r m e d i a t e variable in t h e c o n c e p t u a l model. This variable is designed as a scale. As we did n o t h a v e an example o f such a scale we h a d to devise a scale ourselves. T h e scale we use h e r e is t h e r e f o r e a provisional o n e. We h av e u sed 4 L i k e r t - t y p e s t a t e m e n t s to measure this variable. 8 T h e s e items w e r e s u m m e d t o f o r m a scale, which was not entirely satisfactory, with a C r o n b a e h ' s al p h a o f 0.58. Justice Principle. This variable is c o n c e p t u a l i z e d as t h e dimension u n - derlying allocation criteria. T h e s e criteria are o p e r a t i o n a l i z e d in 12 Li k ert - type questions each representing e i t h e r a m e r i t o r a n e e d criterion. N i n e o f t h e s e questions c o n c e r n e d t h e criteria p e o p l e p r e f e r r e g a r d i n g t h e allo- c a t i o n o f income and the 3 o t h ers c o n c e r n e d t h e sufficiency o f welfare benefits. (See A p p e n d i x A f o r the questions.) R E S U L T S J u s t i c e P r i n c i p l e s We started this p a p e r by asking w h e t h e r p e o p l e use principles o f dis- tributive justice regarding the allocation o f i n co m e. We st at ed t h a t we view justice principles as the dimensions u n d erl y i n g t h e criteria p e o p l e co n si d er r e l e v a n t f o r the allocation o f income. We m e a s u r e d these criteria by m e a n s o f a questionnaire (Appendi x A ) with six m e r i t an d six n e e d items. We e x c l u d e d o n e o f the merit items, responsibility, f r o m t h e analysis b ecau se t h e responses on this item did n o t show e n o u g h variation, i.e., only two r e s p o n d e n t s disagreed with this st at em en t . T h e o t h e r i t em s w e r e analyzed by m e a n s o f factor analysis which resu l t ed in a r o t a t e d v ari m ax solution o f f o u r factors with an eigenvalue > 1.0. O n t h e basis o f Cattell's scree test (1966) we decided to drop the f o u r t h factor. This m e a n t d r o p p i n g o n e o f t h e n e e d items, viz., the family item, as this i t e m l o a d e d only o n t h e f o u r t h factor. T h e result is an extraction o f t h r e e factors which explain 5 0 % o f t h e total variance in the items (see Table II in which f a c t o r loadings <.3 0 a r e omitted). T h e first f a c t o r represen t s t h e n e e d principle o f justice a n d contains five o f the six n e e d items. T h e s e five items f o r m a scale with a C r o n b a c h ' s SThe statements were (1) It is very possible to rise to a higher position in the Netherlands. This is true for people from the lower classes of society as well; (2) Private enterprise should be obstructed as little as possible; (3) Bigger differences in income are necessary, because these motivate people to take on responsibility; (4) People should initially take care of themselves and not put all their problems in the hands of the government. The possible answers were: strongly agree; agree; neither agree, neither disagree; disagree; strongly disagree. 368 d'Anjou, Steijn, and Van A a r s e n Table H. F a c t o r Analysis o f Items Measuring Justice Preference (Varimax R o t a t i o n ) I t e m F a c t o r 1 F a c t o r 2 F a c t o r 3 Welfare benefit too low f o r a single person 0.79 - - - - WeLfare benefit too low for a single m o t h e r 0.67 - - - - W e l f a r e benefit too low for a couple 0.78 - - - - Having a job o r being unemployed not relevant f o r income 0.56 - - - - Physically handicapped are entitled to m o r e income 0.43 - - - - B e t t e r results o n the job, m o r e income - - 0.72 - - M o r e initiative, m o r e income - - 0.85 - - M o r e experience with the job, m o r e income - - 0.38 0.69 M o r e expertise/professional knowledge, m o r e income - - 0.38 0.66 H i g h e r education, m o r e income - - - - 0.73 Eigenvalue 2.4 1.9 1.1 V a r i a n c e explained 22.3 17.6 10.4 C r o n b a c h ' s a .68 .68 .53 alpha of .68 which we consider satisfactory. The principle centers on the notion that people at the very least need enough income to live on. The emphasis lies on the welfare questions and the notion that one's employ- ment status should not determine one's fight to income. The need principle we found corresponds to Boulding's principle of disalienation (u and Smith, 1981). The second factor we have found can be seen as the merit principle of justice. It consists of four of the six merit items. These items form a scale (Cronbach's a .68). The principle reflects the preference for reward- ing differences which are related to job activities (see for a comparable result Gartrell, 1985). Bouckaert (1990) is right in stating that the relation between the effort put in and the result of performing one's job forms the kernel of the merit conception. The third factor we have found indicates that there might be another merit principle. The education item loads on this factor as do experience and expertise. These last items load, however, on the second factor as well. The three items form a relatively weak scale with a Cronbach's alpha of .53. This is considerably lower than the alpha for the four items o f the second factor and warrants maintaining the second factor as the merit prin- ciple and dropping the third from the analysis. Still, the education item, as an important item in this third factor, suggests that there is reason to assume that this factor might reflect a Social Position, Ideology, and Distributive Justice 369 preference for rewarding more general kinds o f investments. Education is probably the most outstanding example of these kinds o f investments. The fact that experience and expertise load on this factor as well supports the idea of a second merit principle. Accepting a second merit principle would, moreover, correspond with the distinction Hochschild (1981) made regard- ing her norms (principles in our terminology) o f distributive justice. She distinguished alongside ascription and strict equality--both of which fall outside our study--need, investments, and results as norms or principles o f justice. The way she described "results" concurs with the four items in o u r first merit principle and her "investments" norm--conceived as a dif- ferentiation n o r m - - h a s like the suggested second merit principle educa, tion at its core. The conclusions that there might be more than one merit or contri- bution principle of distributive justice--each reflecting different kinds of contributions--also corresponds to the contention of T6rnblom (1992) that there are several contribution principles (subrules in his terminology). At this point, we can do no more than conclude that people might use three different principles of distributive justice regarding the allocation of in- come: the first reflecting allocation according to n e e d s - - t h e need principle of distributive justice; the second according to efforts--the merit principle; and the third according to investments. This last principle reflects different kinds of contributions and could be depicted as the "achievement" princi- ple. The suggestion of the existence of such a principle is reason enough to include more (and probably more precisely formulated) items regarding these kinds of general investments in future research. The Theses The first step in the analysis of the theses is to look for consensus. We added up the scores on the items, respectively, forming the need and the merit principle. The lowest possible aggregate score on the five need items (i.e., strongly agree with each of them) is 5 and the highest (i.e., strongly disagree) 25. The actual mean score is 13.6--well above the theo- retical mean of 12.5--with a standard deviation of 2.7. The possible aggre- gate scores for the four merit items range from 4 to 20. The mean score is 9.1 (theoretical mean 10) and the standard deviation 2.7. The actual mean scores compared with the theoretical ones show that the preference for the merit principle is relatively high and for the need principle of justice less high but still considerable. This corresponds with the results of Dutch research into distributive justice (Berting et al., 1986; Hermkens and Van Wijngaarden, 1989; Steijn and De Witte, 1992) and with that of American 370 d'Anjou, Steijn, and Van Aarsen research on the same topic (see e.g., the compilation by Kluegel and Smith, 1981). Both standard deviations, however, point out that alongside the rela- tively widespread adherence to both principles of distributive justice there is a considerable variation in this adherence. This shows that the consensus is not generally held. We have stated five explanations in the form of theses regarding the variations in consensus and assumed a set of variables that could (partly) account for these variations. These variables are class, income, free market ideology, education, age, and gender. The theses are first investigated by means of a path analysis in which these variables and the principles of justice are included. Thereafter each of the theses is examined more spe- cifically. Finally, we review social position, ideology, and justice principles as the main factors in our study more closely. Class ....... "'"', " .................. 15 �9 14",, ............. Free Market .18 ........ "~ ,It I d e o l o g y - . 1 / 5 / / / / ~ - . 2 6 Age Fig. 3. Path model merit principle of justice. Merit P r i n c i p l e C l a s s ~ 2 . 1 , f , , , F r e e M a ~ N e e d ,~ I d e o l o g y P r i n c i p l e / / / -.15// //// Age Fig. 4. Path model need principle of justice. Social Position, Ideology, and Distributive Justice 371 o ~ 8 -= [-, �9 I" I" " I" I" I" " " I I I �9 I ' 1 " 1 " 1 " I" " I" " " " 1 ' ' 1 " 1 " " I ' I ' I . . . . . I ' 1 " 1 " 1 " ..= e-, ~ . ~ -~ V V ,.~ o ~ ~ . - ~ ~ ~ ~, ~ o o '~ 0 0 .o 372 d'Anjou, Steijn, and Van Aarsen The Path Analysis The descriptive statistics for the variables in the path analysis and the intercorrelations among them are given in Table B1 (appendix B). The effects o f the independent variables on the intermediate ones and the effects o f both the independent and the intermediate variables on the d e p e n d e n t ones are given in Table III. Figures 3 and 4 present the path models regarding the merit and the need principle of justice, re- spectively. In this analysis we use two levels o f significance, viz., 5% (the solid lines in Figs. 3 and 4) and 10% (the dotted lines). In view o f o u r limited sample compared to the much larger samples in most o f the stud- ies we refer to, a higher level than the customary 5% level seems to us to be warranted. W h e n we look at the merit path model (Fig. 3) we see that the vari- ables collectively explain 16% of the variance in the preference of respon- dents for the merit principle of justice. The ideological variable, i.e., the free market ideology, mediates the effect of class position and of age on the d e p e n d e n t variable, the merit principle. The explained variance in the second path model (Fig. 4) is the same, viz., 16%. The ideological variable is related to the need principle in a way which we expected, i.e., adherence to the free market ideology is nega- tively related to this justice principle. Ideology mediates the influence of class and age on the need principle. Class also has a direct effect on the need principle of justice; age does not have such an effect. The other independent variables income, education, and gender do not have a statistically significant effect on either the ideology variables or the justice principles. The Self-Interest Thesis This thesis predicts a relationship between class and income, on the one hand, and the merit and need principle, on the other. Figures 3 and 4 show that class is directly related to both principles while income is not. This finding suggests that class is a better indicator of social position in relation to allocation preferences and related attitudes than income. The same may be inferred from Table B1 (Appendix B). The zero-order cor- relations between income and both justice principles, which are all statis- tically significant and in the expected direction, disappear when controlled for class and the other variables in the analysis. As we have stated before, the sign of the path coefficient of class does not have a meaning of its own and thus does not show whether the rela- Social Position, Ideology, and Distributive Justice 373 tionship between class and both principles of justice are as expected. To see whether this is the case we have looked into the unstandardized regression coefficients of the dummy variables and have executed a bivariate analysis. The results in Tables B2 and B3 (Appendix B) show a confusing pattern. All cases agree--as expected--less with the merit principle of justice than Class I. The opposite is found with the need principle. Here all classes (Class V and somewhat Class II expected) agree more than Class I with principle which is as we predicted. In both cases, however, the expected pattern holds true only for the opposite position of Class I (and in a certain degree also Class II) and Class VIII. The preferences of these classes fit in with their interests. The preferenceS of the other classes does not follow the predicted sequences, i.e., it is not consistently so that the preferences of the incum- bents of Class III, IM, and V resemble those of Class I and II and that those o f Class VI and VII resemble those of Class VIII. The Ideology Thesis This thesis predicts first a relationship between social position--class and income--and the free market ideology. As was the case with the justice principles, the prediction holds for class but not for income. When we look at the unstandardized regression coefficients of the dummy variables and at the results of the bivariate analysis, we find a pattern that is even more confusing. All classes--Class VII excepted--agree less than incumbents of Class position I with the free market ideology, as was predicted. There is again the polarity of Class I and Class VIII but the pattern is now less clearly marked. The preferences of the incumbents of the other Class po- sitions do not follow the predicted pattern. The deviation of Class V I I - - t h e lower manual workers--is especially notable in this respect. The second prediction concerns the relationship between ideology and the justice principles. As expected, the free market ideology is posi- tively related to the merit principle and negatively related to the need prin- c i p l e , a l t h o u g h t h e e x p l a i n e d v a r i a n c e is r a t h e r small. I d e o l o g y connects--also as expected--a social structural variable like class with the p r e f e r e n c e for the two principles of justice. The precise relationship be- tween class, ideology and the justice principles is, however, r a t h e r vague. The Enlightenment Thesis This thesis proposed by Robinson and Bell (1978) predicts that those with higher education would be less in favor of the free market ideology and the merit principle and more in favor of the need principle. As can 374 d'A~ou, Steijn, and Van Aarsen be inferred from the foregoing path analysis, our results do not confirm this thesis. In this respect, the result fits in with the study of Robinson and Bell who got the same result for the United States. The Historical Shift Thesis Although, age is not related to the need principle of justice--which is contrary to the prediction of this thesis--it is (negatively) related to the free market ideology and the merit principle o f justice. This (partially) con- firms the predictions of the thesis which means that the older one is the more one adheres to this ideology and the more one prefers this principle. The result supports the idea that there is a shift over time in the direction of more support of equality. Kluegel and Smith, however, point to an al- ternative explanation, viz., that the preferences o f people may change when they grow older. They find the same relationship and explain it as an effect of growing older. Older people appear to "attach more importance to in- dividualistic factors as causes of poverty and wealth and [to] emphasize individual equity over equality or need as a basis for a just distribution of rewards" (1986, p. 288). Their explanation is, moreover, supported by the fact that the predicted relationship between age and the need principle is not present. The Gender Thesis Our results indicate no relationship between gender, ideology, and both principles of justice. This means that Gilligan's (1982) thesis regarding the affinity o f women for an "ethic of care" does not seem to hold for w o m e n with an income of their own. Their beliefs regarding the structure of opportunities as well as their preferences for rewarding contributions and for compensating disabilities do not differ from those of men in the same situation. Whether there is a split between "earning" women and " n o n e a r n i n g " w o m e n with regard to these beliefs and preferences and whether GiUigan's thesis has to be qualified accordingly are questions that await further research. Again, Social Position, Ideolog~ and Justice Principles When we look more closely at class as the indicator of social position, free market ideology, and both justice principles and their interrelations, four results catch the eye. Social Position, Ideology, and Distributive Justice 375 First, we found that our prediction regarding the relationship between class, ideology, and the justice principles is valid only for the incumbents of Class I and Class VIII positions whose preferences are clearly opposed to each other. When we look into the zero-order correlations ('lhble B1, Appendix B) we see that the incumbents of Class I and V I I I positions differ in other respects, as well. Class I position holders have in significantly more cases a higher education and a higher income than Class VIII respondents. The same difference can be seen in regard to descent. Class I position holders have clearly in more cases a Class I and not a Class VII father (41 vs. 3%). In the case of Class VIII respondents on the other hand there is a far greater chance that their father is a member of the working class, i.e.,, Class VII, than of Class I (42 vs. 9%). This suggests that there is a rather big difference between the Class I and Class VIII positions, reflected among other things in the ideology to which the incumbents of those po- sitions adhere and in the preference for a particular principle of justice. The self-interest thesis we put forward is less general than we ex- pected. It may be renamed the "underdog" thesis following Robinson and Bell who have put the underdog principle forward in their pioneering pa- per. The incumbents of Class VIII positions, especially, are the new un- derdogs who least agree with the dominant ideas about society and the just allocation of income. The dissent of the social security recipients in this respect is striking. In the words of Robinson and Bell: They do not accept the invitation of the dominant ideology "to accept and condone ex- isting inequality as generally just and reasonable" (1978, p. 141); a result which concurs with the study of Kluegel and Smith who found that respon- dents "at the top and the bottom of the stratification order" differ in the support they gave to the dominant ideology (1986, p. 295). The study of Ritzman and Tomaskovic-Devey (1992), moreover, strongly suggests that this difference between top and bottom is even more pronounced regarding the contrasting set of beliefs--egalitarianism--which we did not include in our study. Such a variable needs a place in further studies into distributive justice. Second, the confusing pattern regarding the preferences of the in- cumbents of the other class positions demands further explanation. Table B1 (Appendix B) shows that the incumbents of class positions II to VII differ less markedly from each other in respect of education, income, and descent. The effect of these differences can be seen in the diversity of the ideological positions of these classes. It is also reflected in their preferences for the merit and the need principles of justice. The confusing results in- dicate, moreover, that suggestions in the literature about a fragmentation of the class structure seem to be warranted (Roberts et al., 1977; Steijn and De Witte, 1994). A consequence of this fragmentation is that the pre- 376 d'Anjou, Steijn, and Van Aarsen cise distribution of assets is no longer clear and it is therefore difficult to discern the different "intermediate," i.e., the former middle and lower class, class positions from each other. This is a problem for social scientists whose instrument--the class scheme--does not correspond any longer precisely enough with the diversity of the class positions in society. It could also be a problem for the people concerned for whom the ongoing fragmentation process may make it difficult to recognize their interests. Third, ideology connects class as a social structure variable with pref- erences for the justice principles. This confirms the findings of Robinson and Bell (1978), Shepelak (1989), and Hasenfeld and Rafferty (1989). The way we have operationalized the ideological variable as free market ideol- ogy seems promising, but more work has to be done to arrive at a satis- factory m e a s u r e of this ideology. As most of the variance of ideology remains unaccounted for, it seems necessary to take other beliefs into ac- count, e.g., those concerning egalitarianism and fair sharing, and to look for other independent variables as well. Finally, we notice that the ideology of the free market is clearly domi- nant in society. It is an ideology for which there is--just as Kluegel & Smith (1986) assessed--widespread support (see also Ritzman and Tomaskovic- Devey, 1992). The overall mean score and the mean scores of each class lie well below the theoretical mean score of 12.0 on this variable (a low score means agree; see Table B3, Appendix B). As the effect of self-interest seems to be limited--as the relatively weak effect of class position on free market ideology shows--it is probable that socialization, especially through the media, plays an important role in producing and maintaining the domi- nance of this ideology? Especially in the 1980s, the message of the supe- riority of the free market, the virtue of individualistic achievement, and the belief in the abundance of opportunity the market brings with, it has--ex- plicitly and implicitly--been broadcast by television and radio and printed in newspapers and magazines. As the results of the study of Allen and Kuo (1991) suggest, exposure to these media may well affect the kinds o f beliefs, opinions, and preferences we study. DISCUSSION This p a p e r addresses two questions. The first asks whether people use principles of justice regarding the allocation of income. Our analysis 9The basic social-psychological processes which according to Kluegel and Smith (1986) may be important determinants of this ideology are not included in this study so that nothing can be said about the importance of these processes. Social Position, Ideology, and Distributive Justice 377 confirms our theoretical expectation that at least two of these principles can be discerned, viz., a merit and a need principle of distributive justice. The merit principle reflects the preference for rewarding differences that are related to job activities, especially the effort put in and the results of performing one's job. The need principle, on the other hand, reflects the view that people need enough money to live on. This result means that the widespread use of both notions of justice in the literature on distributive justice is empirically warranted. Our empirical material indicates that there might be two merit principles (or subprinciples), i.e., one that prefers al- location based on contributions according to effort and result and one that prefers allocation based on contributions according to investment. As this second merit principle is only weakly represented in our data, more re- search is needed to find out whether people actually use these two different merit principles. Although the adherence to both the merit and the n e e d principle is widespread, there is also a considerable variation in this adherence. A consensus is this lacking. Our second research questions deals with the explanations for this lack of consensus. A multivariate analysis shows that o u t of five different theses suggested in the literature that could explain these differences, three were (partly) confirmed by the data. The first thesis--self-interest--predicts that both income and class affect the adherence to the merit and the need principle of justice. This prediction, however, only holds for class, as there is no relation between income and the preference for the two principles. Moreover, the precise relationship between class and justice principles differs from what we ex- pected. In fact, there is only a clear marked difference in adherence be- tween the incumbents of the highest and of the lowest class positions, i.e., between higher management (who are more in favor of the merit and less in favor of the need principle) and the social security recipients (who are, conversely, less in favor of the merit and more in favor of the n e e d principle). The preferences of the incumbents of the other class positions are not in line with our predictions and, all in all, the data regarding these preferences reflect a confusing pattern. The second thesis--ideology--is also supported by our results. This thesis is a refinement of the self-interest thesis as ideology mediates in part the effect of class on justice principles. We found, however, that the way the self-interest and the ideology theses are formulated is problematic be- cause the predictions regarding the relationship between class, ideology and justice principles are only really confirmed with respect to the incumbents o f Class I and Class VIII positions. As stated above, this situation concurs m o r e with the underdog principle of Robinson and Bell (1978). Further research is needed, particularly with respect to more precise measurements 378 d'Anjou, Steijn, and Van Aarsen o f social position and to extension of ways of measuring the ideology vari- ables. The third thesis--historical shift--is partially supported by our data. Older people show more preference for the free market ideology and the merit principle o f justice than younger people. At this point, further re- search is n e e d e d to find out whether this represents only the effect o f grow- ing older o r is a genuine historical shift. Finally, we found no support for the enlightenment and for the gen- d e r theses; the more educated do not differ from the lower educated in their adherence to the free market ideology and the two justice principles, neither did men and women. Although, three out of five theses are partially supported by the data, the total effect (in terms of explained variance) of our independent and intermediate variables on the dependent variables is limited. This suggests that we have to look at other variables, such as the functioning of media or the activities of left-wing political parties, which may help to explain the support for specific ideologies and justice princi- ples. ACKNOWLEDGMENTS We t h a n k Piet H e r m k e n s , Dick H o u t m a n , J a n Koster, and t h e a n o n y m o u s reviewers for their t h o r o u g h and helpful c o m m e n t s and Brigitte d'Anjou and Michael Krass for their efforts to transform the text into English. APPENDIX A Questions Concerning the Criteria People Prefer in Allocating Income A1 I would like to discuss with you the allocation of income in the Neth- erlands. As you know, one's income depends on a large number of things, such as the level of pay or social security benefit, children's allowance, rent subsidies, etc. [Interviewer shows card] On this card you will find a n u m b e r of things which affect the level of income. I would like to learn from y o u - - b a s e d on the statements formulated on this card--which things, according to you, ought to have an effect on one's income. The possible A1Questions 64, 65, 67, 69, 71, and 72 concern merit criteria and questions 66, 68, 70, 73, 74, and 75 need criteria. Social Position, Ideology, and Distributive Justice 379 answers are strongly agree; agree; neither agree; neither disagree; dis- agree; strongly disagree. 64. A person with a higher education than another person should receive a higher income. 65. A person who obtains better results in his job than another person should receive a higher income. 66. It should not really matter for one's income whether one is employed or unemployed. Your expenditures remain about the same anyway. 67. A person who shows initiative should have a higher income than a person who does not do more at his job than is required. 68. A p e r s o n with a physical handicap which gives him h i g h e r financial burdens than others have should receive a higher income. 69. A person who has a job that carries with it more responsibility, should receive a higher income. 70. T h e household situation ( h a v i n g small c h i l d r e n , h a v i n g a partner with a job) ough not to have effect on the level of income. 71. A person who is more experienced in his job should receive a higher income than someone with less experience. 72. A p e r s o n who has m u c h expertise or p r o f e s s i o n a l k n o w l e d g e a t his d i s p o s a l s h o u l d r e c e i v e a h i g h e r i n c o m e t h a n s o m e o n e who has less o f such e x p e r t i s e or k n o w l e d g e at his disposal. I would like to know now what your opinion is regarding the level of the benefit people receive when they are on welfare. The possible an- swers are that the amount should be much higher; should be higher; is about right; ought to be lower; ought to be much lower. 73. The welfare benefit for a single person i s f 1.148,03 ~a net a month at the moment. What do you think of that amount? 74. The welfare benefit for a single m o t h e r with one child is f 1.476,04 net a month at the moment. What do you think of that amount? 75. The welfare benefit for a married couple without children is f 1.640,04 net a month at the moment. What do you think of that amount? A2Dutch guilders. 380 d'Anjou, Steijn, a n d V a n Aarsen = Z: 0 ~J ~ + 0 8 t ~ i i , - . ~ % % I ~ ~'=".+"'P"~ r " r , ~ M " r " r r o , ~ I ' ' I ' I ' I ' I ' ~ �9 . . ~ . o . o . o . ~ i i i i ~::, ,~, t" t . . . . r " " , ~ I ' l ' l ' ' ' l ' ' l ' l ' ~ d : o r ~ . . . . . . i ' ~ I ' l ' l ' l ' l . . . . I ' ' ' ~ f . . . . I . . . . . . t ' l ' ~ , ~ ~ +~ +~ I' " " I . . . . . l" " I' ' I' ~ i ' ' r t ' ' ' i . . . . I ' ' I ' I ' ~ M O 0 v v ~ . , . . ~ , Social Position, Ideology, and Distributive Justice Table B2. Regression Results of Dummy Variables of Class Position on Merit Principle/Need Principle/Free Market Ideology a 381 Free market Merit principle Need principle ideology Class B / S E t B / S E t B / S E t II 0 . 2 8 4 / 0 . 7 5 4 0.377 0 . 2 5 1 / 0 . 7 4 3 0.337 0.812/0.814 0.999 III 0.568/0.898 0.632 -0.586/0.886 - - 0 . 6 6 1 0.827/0.971 0.852 IV 1 . 1 5 6 / 1 . 0 9 3 1 . 0 5 7 -0.326/1.080 -0.302 1.092/1.183 0.923 V 0.377/1.311 0 . 2 8 8 0.847/1.222 0.694 0.018/1.342 0.013 VI 0.567/1.003 0 . 5 6 5 -0.417/0.990 -0.421 0.657/1.086 0.604 VII 0.290/1.075 0.270 -1.069/1.060 -1.008 -0.211/1.164 -0.181 VIII 1.183/1.001 1 . 1 8 1 -2.123/0.988 -2.149 0.780/1.082 0.721 aClass I omitted. Coefficient significant if twice its standard error. Table B3. Mean Scores on Ideology by Class Position Class position x Merit .~ Need x Free market I 7.7 14.3 9.0 II 8.9 14.3 10.2 III 9.6 13.5 10.2 IV 8.9 14.2 9.9 V 9.0 15.4 9.1 VI 9.1 13.9 10.1 VII 9.3 13.4 9.3 VIII 9.7 12.0 10.0 Total 9.1 13.7 9.9 Era2 >0.30 <0.01 >0.70 .05 .1t .03 R E F E R E N C E S Allen, R. L , and Kuo, C. (1991). Communication and beliefs about racial equality. Discourse Soc. 2: 259-279. Alves, W. M., and Rossi, P. H. (1978). Who should get what? Fairness judgments or the distribution of earnings. A m . J. Sociol. 84: 541-564. Alwin, D. F. (1987). Distributive justice and satisfaction with material well-being. A m . Sociol. Rev. 52: 83-95. Bell, J., and Schokkaert, E. (1992). Interdisciplinary theory and research on justice. In Scberer, IC R. (ed.), Justice: Interdisciplinary Perspectives, Cambridge University Press, Cambridge, U.K., pp. 237-254. 382 d'Anjou, Steijn, and Van Aarsen Berger, J., Zclditch Jr., M., Anderson, B., and Cohen, B. P. (1972). Structural aspects of distributive justice: A status value formulation. In Berger, J., Zelditch Jr., M., and Anderson, B. (eds.), Sociological Theories in Progress, VoL 2, Houghton-Mifflin, New York, pp. 119-146. Bcrting, J., Steijn, A. J., and De Witte, M. J. (1986). Rotterdammers Over Sociale Ongelikheid. Verslag van een Onderzoek Naar Rechtvaardigheidsoordelen, Maatshcappijbeelden en Beoordeling van Beroepsgroepen [People of Rotterdam on Social Inequality. A Study into Justice Judgments, Visions on Society and Judgment of Occupational Categories], Erasmus University, Rotterdam. Boris, C. (1992). Het Dmagvlak voor de Sociale Vemiewing in Rotterdam [The Conditions for Societal Renewal in Rotterdam], Erasmus University, Rotterdam. Bouckaert, L (1990). Rechtvaardigheid: Opinies en morele intuities [Justice: Opinions and moral intuitions]. In Bouckaert, L., De Witte, H., Lagrou, L., Ovcrlaet, B., and Schokkaert, E. (eds.), W'te Verdient Meet? Een Opinieonderzoek naar de P, echtvaardigheid van Inkomensverschillen [Who Earns More? An Opinion Study into the Justice of Income Differences], Acco, Leuven/Amersfoort, pp. 111-129. Buchanan, A., and Mathieu, D. (1986). Philosophy and justice. In Cohen, R. L. (ed.), Justice: l/Tews from the Social Sciences, Plenum Press, New York, pp. 11-45. Cattell, R. B. (1966). The meaning and strategic use of factor analysis. In Cattell, R. B. (ed.), Handbook o f Multivariate Experimental Psychology, Rand McNally, Chicago, pp. 174-243. Cohen, R. L. (1986). Introduction. In Cohen, R. L. (ed.), Justice: Views from the Social Sciences, Plenum Press, New York, pp. 1-9. Cohen, R. L., and Greenberg, J. (1982). The justice concept in social psychology. In Greenberg, J., and Cohen, R. L (eds.), Equity and Justice in Social Behavior, Academic Press, New York, pp. 1-41. Cook, IC S. (1975). Expectations, evaluations and equity. Am. Sociol. Rev. 40: 372-388. Cook, K. S. (1987). Toward a more interdisciplinary research agenda: The potential contributions of sociology. Soc. Justice ICes. 1: 5-18. Cullen, B. (1992). Philosophical theories of justice. In Soberer, K. R. (ed.), Justice: Interdisciplinary Perspectives, Cambridge University Press, Cambridge, U.K., pp. 15-65. Davis, H. H. (1979). Beyond Class Images, Croom Helm, London. Deutsch, M. (1985). The Social Psychology of Justic~ Yale University Press, New Haven, CT. Drudy, S. (1991). The classification of social class in sociological research. Br. Z Sociol. 42: 21-41. Evans, G. (1993). The decline of class divisions in Britain? Class and ideological preferences in the 1960s and the 1980s. Br. Z SocioL 44: 449-471. Ganzeboom, H., Luijkx, R., Dessens, J., De GraM, P., De GraM, N. D., Jansen, W., and Ultee, W. (1987). Intergenerationele klassenmobiliteit in Nederland Tussen 1970 en 1985 [Intergenerational class mobility in the Netherlands between 1970 and 1985]. Mens Maatschappij 62: 17-43. Gartrell, C. D. (1985). Relational and Distributional Models of Collective Justice Sentiments. Soc. Forces 64: 64-83. Gilligan, C. (1982). In a different voice: Psychological theory and women's development, Harvard University Press, Cambridge, MA. Goldthorpe, J. H. (1980). Social Mobili~ and Class Structure in Modern Britain, Clarendon Press, Oxford. Goldthorpe, J. H., Lockwood, D , Bechhofer, F., and Platt, J. (1969). The Affluent Worker in the Class Structure, Cambridge University Press, Cambridge, U.K. Goldthorpe, J. H., and Payne, C. (1986). Trends in intergenerational class mobility in England and Wales, 1972-1983. Sociology 20: 531-555. Graetz, B. (1986). Social structure and class consciousness: Facts, fictions and fantasies. Aust. N. Z. J. SocioL 22: 46-64. Grimes, M. D. (1989). Class and attitudes toward structural inequalities: An empirical comparison of key variables in neo- and post-Marxist scholarship. SocioL Quart. 30: 441-463. Social Position, Ideology, and Distributive Justice 383 Hamilton, V. L , and Rytina, S. (1980). Social Consensus on Norms of Justice: Should the Punishment Fit the Crime? Am. Z SocioL 85: 1117-1144. Hasenfeld, Y., and Rafferty, J. A. (1989). The determinants of public attitudes toward the welfare state. Soc. Forces 67: 1027-1048. Hermkens, P. L J., and Boerman, F. A. (1989). Consensus with respect to the fairness of incomes: differences between social groups. Soc. Res. 3: 201-215. H e r m k e n s , P. J. L., and V a n W i j n g a a r d e n , P. J. (1989). Rechtvaardigingscriteria en Inkomensongelijkheid: OnderLoek uit 1976 Herhaald [Justification Criteria and Income Inequality: 1976 Study Replicated], Ministerie van Sociale Zaken, D e n Haag, The Netherlands. Hochschild, J. L. (1981). What's Fair; American Beliefs About Distributive Justice, Harvard University Press, Cambridge, MA. Homans, G. C. (1961). Social Behaviour. Its Elementary Forms, Routledge & Kegan Paul, London. Homans, G. C. (1974). Social Behaviour. Its Elementary Forms (rev. ed.), Harcourt, Brace & Jovanovich, New York. Homans, G. C. (1982). Foreword. In Greenbcrg, J., and Cohen, R. L (ed.), Equity and Justice in Social Behavior, Academic Press, New York, pp. xi-xviii. Huber, J., and Form, W. H. (1973). Income and Ideology: An Analysis of the American Political Formula, Free Press, New York. H u b e r Rytina, J., Form, W. H., and Pease, J. (1970). Income and stratification ideology: Beliefs about the American opportunity structure. Am. Z Sociol. 75: 703-716. Jasso, G., and Rossi, P. H. (1977). Distributive justice and earned income. ArrL Sociol. Rev. 42: 639-651. Kluegel, J. R., and Smith, E. R. (1981). Beliefs about stratification.Ann. Rev. Sociol. 7: 29-56. Kluegel, J. R., and Smith, E. R. (1986). Beliefs About Inequality: Americans" Flews of What Is and What Ought to B~ Aldine de Gruyter, New York. Lcrner, M. J. (1987). Integrating societal and psychological rules of entitlement: The basic task of each social actor and fundamental problem for the social sciences. Soc. Justice Res. 1: 107-125. Lockwood, D. (1975). Sources in variation in working class images of society. In Bulmer, M. (ed.), Working Class Images of Society, Routledge & Kegan Paul, London, pp. 16-31. Mackenzie, G. (1973). The Aristocracy of Labor. The Position of Skilled Craftsman in the American Class Structure, Cambridge University Press, Cambridge, U.K. Mackenzie, G. (1974). The 'affluent worker' study: An evaluation and critique. In Parkin, F. (ed.), The Social Analysis of Class Structur~ Tavistock, London, pp. 237-256. Markovsky, B. (1985). Toward a multilevel distributive justice theory. Am. Sociol. Rev. 50: 822-839. Marshall, G., Newby, H., Rose, D., and Vogler, C. (1988). Social Class in Modem Britain, Hutchinson, London. Marx, K., and Engels, F. (1984). The German Ideology: Part On~ (Edited and with Introduction by C. J. Arthur), International Publishers, New York. Miller, D. (1976). Social Justic~ Clarendon Press, Oxford. Parkin, F. (1974). Strategies of social closure. In Parkin, F. (ed.), The SociaIAna~ysis of Class Structur~ Tavistock, London, pp. 1-18. Rafferty, J. A., and Hasenfeld, Y. (1992). A response to Emerson and Van Buren. Soc. Forces 71: 511-512. Rawls, J. (1973). A Theory of Yusticg Oxford University Press, London. Reich, C. A. (1964). The new property. Yale Z 73: 733-788. Ritzmart, 1L L., and Tomaskovic-Devey, D. (1992). Life chances and support for equality and equity as normative and counternormative distribution rules. Soc. Forces 70." 745-763. Roberts, K., Cook, F. G., Clark, S. C., and Semeonoff, E. (1977). The Fragmentary Class Structurr Heinemann, London. Robinson, R. V., and Bell, W. (1978). Equality, Success, and Social Justice in England and the United States. Am. Sociol. Rev. 43: 125-143. 384 d'Anjou, Steijn, and Van Aarsen Rossi, P. H., and Anderson, A. B. (1982). The factorial survey approach: An introduction. In Rossi, P. H., and Nock, S. L (eels.), Measuring Social Judgments: The Factorial Survey Approach, Sage, Beverly Hills, pp. 9-15. Rytina, S. (1986). Sociology and Justice. In Cohen, R. L. (ed.), Justice: Views from the Social Sciences, Plenum Press, New York, pp. 117-151. Schaeffer, N. C., (1990). Principles of justice in judgments about child support. Soc. Forces 69: 157-179. Schwartz, S. (1975). The justice of need and the activation of humanitarian norms, d. Soc. Issues 31(3): 111-137. Shepelak, N. J. (1989). Ideological stratification: American beliefs about economic justice. Soc Justice Res. 3: 217-231. Smith, K. B., and Stone, L H. (1989). Rags, riches, and bootstraps: Beliefs about the causes of wealth and poverty. Soc Quart 30: 93-107. Steijn, A. J., and De Witte, M. (1992). De Januskop van de [ndustriEle Samenleving: Technologic, Arbeid, en KZassen aan her Begin van de Jaren Negentig [The Janushead of the Industrial Society: Technology, Work, and Classes at the Beginning of the Nineties], Samson, Alphen a/d Rijrg The Netherlands. Steijn, A. J., and De Witte, M. (1994). Class and image of society of Dutch workers. InL d. Group Tensions 24: 219-235. Svallfors, S. (1991). The politics of welfare policy in Sweden: Structural determinants and attitudinal cleavages. Br. J. SocioL 42: 609-634. Ttrnblom, K. (1992). The social psychology of distributive justice. In Scherer, K. R. (ed.), Justice" Interd~ciplinary Perspectives, Cambridge University Press, Cambridge, U.K., pp. 177-237. Ttrnblom, K. Y., and Foa, U. G. (1983). Choice of a distribution principle: Crosscultural evidence on the effects of resources. Acta Socio!. 26: 161-173. Walster, E., and Walster, G. W. (1975). Equity and social justice. ]. Soc. Issues 31: 21-45. Weakiiem, D. (1993). Class consciousness and political change: Voting and political attitudes in the British working class, 1964 to 1970. Am. SocioL Rev. 58: 382-397. Weber, M. (1968). In Roth, G., and Wittich, C. (eds.), Economy and Society. A n Outline o f Interpretive Sociolog),, Bedminster Press, New York. Wright, E. O. (1979). Class Structure and Income Determination, Academic Press, New York. Wright, E. O. (1989). The comparative project on class structure and class consciousness: An overview. Acta SocioL 32: 3-22. 
work_tgh4huihlvearmqlpnvwgpnwv4	----	RICR Mars IRRC March 2002 Vol. 84 No 845 145 Complementary jurisdiction and international criminal justice by Oscar Solera F or the last ten years the notion of jurisdiction has been a cen- tral issue in many discussions on international humanitarian law.The reason is simple: in a world where the punishment of international crimes is essential to the maintenance of inter- national peace and security, how do we reconcile international crimi- nal jurisdictions with the jurisdiction of domestic courts in situations where both are competent to try the same case. The question was not addressed in depth until the late 1980s. States previously applied general principles of criminal jurisdic- tion to determine which national court was competent to try an indi- vidual charged with acts amounting to internationally recognized crimes. In 1989, however, the creation of an international criminal court was proposed to the General Assembly of the United Nations by the delegation of Trinidad and Tobago, with the objective of combat- ing what they considered to be one of the newly acknowledged inter- national crimes: drug trafficking.The proposal, which was not new for the United Nations, echoed the earlier work of two special commit- tees set up by the General Assembly to develop draft international criminal tribunal statutes in 1951 and 1953. OSCAR SOLERA is a Ph.D candidate in International Law at the Graduate Institute of International Studies and Assistant at the Law Department of the University of Geneva. The author would like to thank Professor Georges Abi-Saab for his precious comments on the first draft of this article. The International Law Commission (ILC) was charged by the General Assembly with the preparation of the new draft statute. Although the chances of success were not very high, a series of events between 1989 and 1992 cleared the way for the Commission’s efforts: the creation by the Security Council of international criminal tri- bunals for the former Yugoslavia and Rwanda thus provided, for the first time since World War II, for the investigation and trial at the inter- national level of individuals for violations of international humani- tarian law. In 1994 the ILC, in the course of its work on the Draft Code of Crimes Against Peace and Security of Mankind, presented the draft Statute of the International Criminal Court (ICC) to the General Assembly. The ILC’s proposal was based on international precedents, such as the Nuremberg and Tokyo tribunals, the 1951 and 1953 draft statutes, the 1980 draft Statute for the Creation of an International Criminal Jurisdiction to enforce the Apartheid Convention, and the statutes for the Tribunals for Yugoslavia and Rwanda. The draft ICC Statute was then analysed by an Ad Hoc Committee established by the General Assembly, in order to review the major substantive and administrative issues arising from the text. The work of the Committee, notwithstanding its failure to reach suf- ficient agreement to call a conference of plenipotentiaries, allowed States to grow used to the idea of creating an international criminal tribunal that would try individuals. As emerged in subsequent discus- sions, States were reluctant to accept the idea of having a completely independent international judicial body which could assess individual responsibility for international crimes. Many saw in this notion a potential loss of sovereignty. The discussions and conclusions of the Ad Hoc Committee led to the establishment of a Preparatory Committee in 1996 to examine the ILC’s draft Statute for the ICC, taking into account the different views, the remarks made by the Ad Hoc Committee and the written comments submitted by States and international organizations. To deal with the different issues, the Committee defined a list of subjects, including one designated as the 146 Complementary jurisdiction and international criminal justice Complementarity and Trigger Mechanism.The idea was to discuss the pro- posed international court’s relationship with domestic systems. On submitting its final report in 1998, the Committee proposed a new version of the draft Statute that was then discussed at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The issue of complementarity was again included in the discussion, but was not taken up by any specific working group in its agenda and was thus left to the Committee of the Whole. The concept was finally accepted as proposed by the Preparatory Committee and explicitly incorporated in the Preamble and in Articles 1, 17, 18 and 19 of the Statute, although it is clear that it permeates the whole structure and function- ing of the Court. Complementary jurisdiction: domestic vs. international criminal jurisdictions? To solve the problem of linkage between domestic and international jurisdiction the Security Council, in creating the International Criminal Tribunal for the former Yugoslavia (ICTY) and its counterpart for Rwanda, decided to vest both tribunals with what was called concurrent jurisdiction,1 coupled with a “primacy clause”. The experience of the two ad hoc international tribunals led to further developments of the notion of jurisdiction.The primacy given to these tribunals gave rise to much controversy, since States felt that their sovereignty was being eroded.A new type of relationship was required in order to preserve State sovereignty without detriment to the goal of reducing impunity. It was therefore considered that the international court, instead of having primacy over domestic courts, should be complementary to such courts and intervene only when national criminal jurisdiction was not available or unable to perform its tasks. 11 It should be considered that the concept of concurrent jurisdiction has been applied to inter-State relations for quite a few years. For further developments, see Ian Brownlie, Principles of Public International Law, 4th edition, Clarendon Press, 1995, p. 317 ff. RICR Mars IRRC March 2002 Vol. 84 No 845 147 Complementary jurisdiction dictates that the ICC would be competent to investigate and try a case, unless there is a State that claims jurisdiction. States continue to play the central role. But if they fail or find it impossible to assume that role, or show disinterest or bad faith, the ICC will step in to ensure that justice is done. In particular, it is designed to operate in cases where there is no prospect of interna- tional criminals being duly tried in domestic courts. Emphasis is placed on the Court being a body which will complement existing domestic jurisdictions and existing procedures for international judi- cial cooperation in criminal matters, and which is not intended to exclude the existing jurisdiction of domestic courts or to affect the right of States to seek extradition.2 Proposed as an option by the ILC, the concept of comple- mentary jurisdiction survived all stages of the negotiation process and was finally accepted and incorporated in the ICC Statute. The notion of complementary jurisdiction is quite new. It stems from the increasingly important relationship between States and international organizations, for the role played by international entities other than States has forged a new conception of the international sys- tem and of the distribution of rights, responsibilities and tasks. In domestic law, it is not easy to foresee how the notion of complemen- tary jurisdiction will develop. Internal legal systems usually possess 22 In furthering the definition of comple- mentarity, the Ad Hoc Committee on the Establishment of an International Criminal Court felt obliged to clarify how this concept should be understood within national juris- diction. Once a clear definition of the concept had been established, it could then move on to determine the relationship between the national and international jurisdictions, giving special consideration to the nature of exceptions to the exercise of national juris- diction, to determining the authority compe- tent to decide on those exceptions, and to the timing requirements. National jurisdiction was seen as “not limited to territorial jurisdic- tion but also [as including] the exercise of jurisdiction by the States competent to exer- cise jurisdiction in accordance with estab- lished principles and arrangements: thus, with respect to the application of military jus- tice, it was not so much the territorial State that was important, but the State whose mili- tary was involved. The status-of-forces agree- ments and extradition agreements also had to be taken into consideration in determining which State had a strong interest in the issue and should consequently exercise jurisdic- tion.” Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, 50th session, Supplement No. 22 (A/50/22), para. 39. 148 Complementary jurisdiction and international criminal justice hierarchical structures in which judicial bodies have a more or less clear sphere of action, and it is difficult to imagine a judicial body fail- ing to perform its function and the case being resolved by a substitute jurisdiction. At the inter-State level, the predominant trend appears to favour concurrent rather than complementary jurisdiction. Admittedly, as awareness of the gravity of certain forms of conduct grows not only in domestic fora but also within the interna- tional community, States have realized that in certain circumstances their national apparatus or internal legislation is insufficient to deal with crimes that undermine the most essential principles of humanity. In order to preserve the ideal of justice, but above all to avoid impunity, States have consequently come to accept the fact that their systems, being imperfect, are in need of new mechanisms to comple- ment them. The idea of international jurisdiction is thus viewed as a way to reinforce efforts against impunity, always with preservation of the ideal of justice in mind. The creation of the ICTY shows that some States were finally ready to accept an international judicial body mandated to intervene in criminal matters, more specifically in those which, because of their gravity, have an international impact. However, as will be seen below, the relationship with a permanent international crimi- nal court was not perceived in the same manner. Many States argued that the primacy of the ad hoc tribunals was due to their special link with the Security Council. This was not the case for the projected ICC, since it would be created by treaty. The idea of complementary jurisdiction appeared to be a good compromise for States that feared a limitation of their sovereignty. The ILC and the definition of the ICC’s jurisdiction The main problem: the threat to sovereignty The Commission clearly recognized that any proposal for the creation of an international court had to take into consideration resistance by States. Two problems had to be avoided: (1) that the Court did not undermine the sovereignty of States; and (2) that the mechanism to be adopted did not threaten the efforts which were being made in national systems to enact adequate legislation for the RICR Mars IRRC March 2002 Vol. 84 No 845 149 punishment of international crimes under universal jurisdiction.3 Indeed, these two problems were discussed by State delegations within the Preparatory Committee. For instance, when analysing the impor- tance of the Court and its relationship with national tribunals, some delegations referred unequivocally for the first time to one of the Court’s main objectives. It was said that even if national authorities had the primary responsibility with regard to the crimes listed in the Statute, an international court was necessary to avoid impunity, and that this was so, notwithstanding the awareness that the Court should intervene only in those cases where the solution would not be satisfac- tory at the domestic level.4 Such a statement is far from being banal. It accurately expresses the situation that States were about to face during the Conference of Plenipotentiaries: did they want to preserve sover- eignty at any price, even at the risk of condoning impunity for serious crimes against human rights and humanitarian law? It should be noted that the Commission itself was con- vinced of the need to create an international criminal tribunal. For instance, in its report it dealt with the objections of certain States to the Court’s establishment. One of the claims made by States was that the current system of international proceedings based on the rule of universal jurisdiction had worked fairly well, and that establishment of the Court could consequently restrict and hinder the effective applica- tion of that rule. In its reply, the Commission drew attention to the burden that the system of universal jurisdiction imposed on States, adducing that in certain circumstances it may lead to impunity due to external or internal pressures (blackmail, terrorist attacks, etc.), thus risking that the outcome of the trial may not be equitable.5 The ILC’s proposals The Commission proposed three options to the General Assembly: (1) an international criminal court with exclusive jurisdic- tion, according to which individual States should refrain from 33 Yearbook of the ILC, ibid., paras 118-119. 44 Report of the Preparatory Commit- tee on the Establishment of an Internat- ional Criminal Court, A/CONF.183/2/Add. 1, para. 157. 55 Yearbook of the ILC, 1992, Vol. II, part 1, para. 7. 150 Complementary jurisdiction and international criminal justice exercising jurisdiction over crimes falling within the competence of the Court; (2) concurrent jurisdiction of the international criminal court and domestic courts; and (3) an international criminal court having only review competence that allowed it to examine decisions of domestic courts on international crimes.6 The Commission saw some disadvantages in the second alternative, considering it contrary to uniformity of application. It also viewed as problematic the potential situation in which one party wished to initiate an action before a domestic court and another party wanted it brought before the international court. However, Special Rapporteur Thiam — who had prepared an earlier draft statute for the international criminal court7 — and the Commission deemed the pos- sibility of having concurrent jurisdiction to be satisfactory and a good compromise. In fact, without expressly referring to the concept of complementary jurisdiction, the Commission indicated that in those cases where both domestic and international jurisdiction concur, pref- erence would be given to domestic courts and the international court would have jurisdiction only if the competent States decide not to investigate.8 This solution was not uncontroversial within the Commission, especially for those who saw it as a source of conflicts of jurisdiction that may lead to paralysis and injustice. Some members therefore supported the idea of the ICC having exclusive jurisdiction, which would eliminate possible conflicts of jurisdiction between it and domestic courts. In this context it is important to note that some members of the Commission emphasized that the principle of 66 Yearbook of the ILC, 1990, Vol. II, part 2, para. 130. 77 In this first draft statute, the Special Rapporteur proposes the following text: “1. The Court shall try individuals accused of the crimes defined (...) in respect of which the State or States in which the crime is alleged to have been committed has or have confer- red jurisdiction. 2. Conferment of jurisdiction (...) shall be required only if such States also have jurisdiction, under their domestic legis- lation, over such individuals.” The Comments to these proposals state that: “(...) Here again, the Special Rapporteur has thus taken account of the comments of the members of the Commission who expressed concern that the criminal jurisdiction of States should be respected.” Yearbook of the ILC, 1991, Vol. II, part 1, paras 38-41. 88 Yearbook of the ILC, 1991, Vol. II, part 2, para. 114. RICR Mars IRRC March 2002 Vol. 84 No 845 151 sovereignty was no longer considered to be an absolute principle as in classic international law.9 The Commission — following a proposal made by the Special Rapporteur — also proposed a fusion of options (1) and (2), according to the types of crimes to be investigated: for certain crimes the Court would have exclusive jurisdiction and for others concurrent jurisdiction.10 The problem with this proposal was to compile the list of crimes which would fall under each type of jurisdiction and on which views differ sharply.11 The third option — the Court having powers of judicial review — also had some supporters, who argued that this solution dealt with the uniformity problem raised by those in favour of exclu- sive jurisdiction. In their opinion this alternative “would also perform a preventive role in that it would be an incentive to national courts to be more careful and watchful in applying the norms of international law”,12 and could be acceptable to States if similar systems in all exist- ing complaints procedures in international human rights law were taken into account. However, it was finally ruled out as an unrealistic option.13 The ILC’s draft Statute: the starting point In Resolution 47/33 of 25 November 1992 the General Assembly requested the ILC to undertake the elaboration of a draft Statute for the ICC as a permanent judicial body. The Working Group established within the Commission to that effect presented its first report in 1993.14 In this first formal draft the Working Group adopted the principle of complementary jurisdiction, with the particular pro- viso that the Court may not exercise its jurisdiction unless all States that may be competent give their consent. In its commentary to Article 24 of the draft, the Working Group indicated which 99 Ibid., para. 115. 1100 Yearbook of the ILC, 1991, Vol. II, part 1, para. 41. 1111 Ibid., para. 42. 1122 Yearbook of the ILC, 1991, Vol. II, part 2, para. 116. 1133 Yearbook of the ILC, 1992, Vol. II, part 2, para. 57. 1144 Yearbook of the ILC, 1993, Vol. II, part 2, Annex. 152 Complementary jurisdiction and international criminal justice concurring States will have to consent for the Court to establish juris- diction: (a) any State having jurisdiction under the relevant treaty; (b) any State party to the Genocide Convention of 1948; (c) the State of which the person accused of the crime is a national (the national State); and (d) the State on the territory of which the conduct in ques- tion occur-red (the territorial State). The Working Group also proposed that the Court should have jurisdiction, this time exclusive jurisdiction, when the Security Council refers a case to it. In this situation no State may validly claim jurisdiction over the Court’s own jurisdiction. Jurisdiction as proposed by the Working Group aroused immediate reactions from the General Assembly’s Sixth Committee and from States, which saw the provisions as creating a great deal of uncertainty. The Working Group consequently proceeded to re- examine the draft Statute, presenting a final version in 1994.This time the ILC stated that the Statute had been drafted bearing in mind “the fact that the court’s system should be conceived as complementary to national systems which function on the basis of existing mech- anisms for international cooperation and judicial assistance (...)”.15 The Commission’s intention was to let the Court intervene in cases where there is no prospect of a potential criminal being tried in national courts. Emphasis was therefore placed on the idea that the Court would act as a body complementing existing national jurisdictions and existing procedures for international judicial cooperation. Hence, it was not intended to exclude the existing jurisdiction of domestic courts, or to affect the right of any State to seek extradition. On the basis of these considerations, the Commission pro- posed a group of articles to delimit and make possible the comple- mentary character of the Court’s jurisdiction. Draft Articles 20, 25, 27, 34 and 35, among others, accordingly established the basic require- ments for the Court to exercise jurisdiction. In the view of the Commission, “it is thus by the combination of a defined jurisdiction, clear requirements of acceptance of that jurisdiction and principled 1155 Yearbook of the ILC, 1994, Vol. II, part 2, para. 81. RICR Mars IRRC March 2002 Vol. 84 No 845 153 controls on the exercise of jurisdiction that the statute seeks to ensure, in the words of the preamble, that the court will be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective”.16 These last words of the Commission were to become the accepted definition for complementary jurisdiction. From then on, this concept was adopted by the Ad Hoc Committee and the Preparatory Committee, and undoubtedly permeated the Statute as approved at the Rome Conference. The concept nonetheless did not escape criticism. On the contrary, as will be seen in the following sections, both the Ad Hoc Committee and the Preparatory Committee felt obliged to refine it, tacitly recognizing that any decision on the jurisdiction of the Court would determine its whole functioning. Is complementary jurisdiction the best solution? Despite the ILC’s success in putting together the draft Statute in a fairly short time, taking into consideration observations made — in writing and at the General Assembly’s Sixth Commit- tee — by members of the Commission and States, it fell short of rep- resenting a widely supported agreement.There was still great concern about the implications of creating an international judicial body. In view of these worries, and notwithstanding the Commission’s recommendation to “convene an international confer- ence of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an international criminal court”,17 the General Assembly created an Ad Hoc Committee to review the draft. Although the Committee did not reach sufficient consen- sus to call for an international conference after two years’ work, the discussions did enable States to analyse in greater detail the various aspects needing further consideration or deliberation. The Bureau of 1166 Yearbook of the ILC, 1993, Vol. II, part 2, Annex, p. 37. 1177 Yearbook of the ILC, 1994, Vol. II, part 2, para. 90. 154 Complementary jurisdiction and international criminal justice the Committee proposed that the first issue that should be discussed was the concept of complementarity.18 In fact, the Ad Hoc Committee did make an in-depth analysis of the concept and implications of considering the Court as complementary to national tribunals. In its report to the General Assembly in 1995, the Committee tried to build the necessary theo- retical framework within which complementarity should be under- stood. It is entirely conceivable that the intention was to provide States with sufficient elements to allow them to appreciate the advantages of such a system of jurisdiction. Given that some agreement on formulating the terms of the ICC Statute had proved possible, and in view of “the educational value produced by the work of the Ad Hoc Committee”,19 the General Assembly decided to establish a Preparatory Committee to discuss the draft Statute prepared by the ILC and the comments made by States, paving the way for the International Conference of Plenipotentiaries. Although there were doubts about the efficiency of the Committee in the first twelvemonth, especially its ability to agree on a text before the deadline set for it, it did manage to finish its work on time and its final report was duly presented in April 1998. It included the draft Statute for the ICC, the draft Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the ICC, the draft Rules of Procedure for the conference, and the draft organization of work of the conference. Despite the multiple obstacles faced by the Committee during its first year of work, it did, however, extensively analyse the issue of complementarity and its consequences for the Statute in terms of content and procedure. 1188 Recommendations of the Bureau concerning the work of the Ad Hoc Committee during the period 14-25 August 1995, Informal Paper No. 5/Rev. 2. 1199 Cherif Bassiouni, “Observations concern- ing the 1997-98 Preparatory Committee's work”, in Nouvelles Etudes Penales — The International Criminal Court: Observations and Issues before the 1997-98 Preparatory Committee; and Administrative and Financial Implications, No. 13, érès, 1997, p. 9. RICR Mars IRRC March 2002 Vol. 84 No 845 155 General considerations regarding the ICC’s jurisdiction The Ad Hoc Committee emphasized that the ILC and the Committee itself did not intend the proposed Court to replace domestic courts in criminal procedures. However, it recognized the fear of States that an abstract definition would lead to confusion and thus render the Court non-operational. It was consequently seen as desirable “to have a common understanding of the practical implica- tions of the principle of complementarity for the operation of the international criminal court”.20 According to a number of States, the concept should stress the presumption that national jurisdictions would have preference over the proposed court.21 Conversely, other States considered that the idea of concurrent jurisdiction should pre- vail, coupled with a primacy provision in favour of the international court.22 It was also stressed that the ILC was not considering the creation of a hierarchy between the international court and domestic courts. Therefore, even if the international court were to determine that a domestic court’s decision was ill-founded, this could not and should not be seen as the review power of a superior court. The underlying objective was to avoid a situation in which a criminal was shielded by a State in order to avoid his prosecution or a higher penalty. An additional situation in which it was thought that the international court would be entitled to intervene was if national 156 Complementary jurisdiction and international criminal justice 2200 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, 50th session, Supplement No. 22 (A/50/22), para. 30. 2211 Delegations supporting this position argued that national systems have the fol- lowing advantages: “(a) all those involved would be working within the context of an established legal sys- tem, including existing bilateral and multila- teral arrangements; (b) the applicable law would be more certain and more developed; (c) the prosecution would be less compli- cated; (d) both prosecution and defence were likely to be less expensive; (e) evidence and witnesses would normally be more readily available; (f ) language problems would be minimized; (g) local courts would apply esta- blished means for obtaining evidence and testimony, including application of rules relat- ing to perjury; and (h) penalties would be clearly defined and readily enforceable. (...)”, ibid., para. 31. 2222 Ibid., para. 32. authorities failed, without justification, to take action in respect of a crime being committed.23 One important consideration put forward is the need to safeguard the primacy of national jurisdictions while simultaneously ensuring that the international court’s jurisdiction does not become merely residual. This consideration is very pertinent and should be seen as a call for caution: it is true that State sovereignty should be pre- served, but what is the purpose of creating an international body with such limited scope of action that it would never get a chance to per- form? Remember that, as mentioned above, the whole idea of estab- lishing an international criminal court was based on an ideal of justice, on the conviction that when faced with heinous crimes that affect the international community, impunity was unacceptable. Now if all national systems were effective, efficient and just, as well as able to deal with such crimes, no international court would be necessary. However, some members of the international community nevertheless felt that that was not the case. So the warning is not superfluous. On the contrary, it is a reminder that at some point States deemed that there was a need to have such an international body, and that action taken must be consistent with that goal.The above consideration does not affect the fact that further clarification is required and that other related issues should be taken into account.24 Exceptional character of the Court’s jurisdiction Both the Ad Hoc Committee and the Preparatory Committee reiterated that complementarity should be seen within the framework of the relationship between national jurisdiction and the jurisdiction of the international criminal court, and that the latter is to be considered as exceptional.25 It was pointed out that, given the lim- ited resources the proposed Court would have, it would be better to RICR Mars IRRC March 2002 Vol. 84 No 845 157 2233 Report of the Ad Hoc Committee, op. cit. (note 2), para. 45. 2244 The Committee mentioned interna- tional judicial cooperation, surrender, extra- dition, detention, incarceration, recognition of decisions and applicable law. 2255 Report of the Preparatory Commit- tee on the Establishment of an Interna- tional Criminal Court, Supplement No. 22 (A/51/22), Vol. I, para. 154. avoid bringing cases that could easily be dealt with by domestic courts. A better justification for this argument would be that in international law, the exercise of police power and penal law are deemed to remain within the competence of the State, and that the jurisdiction of the Court should therefore be considered as an exception to such State prerogative.26 This idea was reinforced by the assessment of certain States that the establishment of the Court did not and should not diminish or serve as a substitute for the State’s obligation to prosecute and punish those individuals suspected of having committed interna- tional crimes.27 According to the said view, that remains an interna- tional obligation for all States, because those crimes affect the interna- tional community as a whole. But the foregoing assertion should not be understood as granting an absolute character to national jurisdiction, because this would lead to defining the jurisdiction of the Court in terms of what it could not do, instead of determining what it could do. It was therefore proposed that a specific article should be incorporated in the text of the draft.28 The same proposal was made to the Ad Hoc Committee, but received insufficient support. The situation changed within the Preparatory Committee, where it was finally accepted.29 According to the Preparatory Committee, the exceptions that would lead to intervention by the Court were to be deduced from the draft Preamble, which referred to cases where trial procedures in national criminal justice systems were not available or were ineffec- tive.30 States felt that the concepts of “available” and “ineffective” were unclear and thus might raise questions as to the standards for making such a determination. Reference was made in the Ad Hoc Committee to the ILC’s intention when using these concepts, in the sense that the Commission “only expected the international criminal court to oper- ate in cases in which there was no prospect that alleged perpetrators of serious crimes would be duly tried in national courts”.31 This would 158 Complementary jurisdiction and international criminal justice 2266 Ibid., para. 155. 2277 Ibid., para. 156. 2288 Ibid., para. 161. 2299 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add. 1, p. 10. 3300 Ibid., p. 9. 3311 Report of the Ad Hoc Committee, op. cit. (note 2), para. 42. preclude its intervention in the case of decisions made by domestic courts to acquit, to convict or not to prosecute, unless it is determined that they were not well founded. Although it may seem a purely terminological matter, the notions of “unavailable” and “ineffective”, as referred to in the draft Statute, or “unwillingness” and “inability”, as provided for in Arti- cle 17.1(b) of the Rome Statute, may lead to ambiguity until the Court determines the standards to be applied. The provisions in Articles 17.2 and 17.3 of the Rome Statute are not very helpful in clarifying the above-mentioned terms. Instead, they add to the com- plexity of the problem by making reference to other subjective notions.32 It was also considered that another exception to the exer- cise of national jurisdiction was the case of a State voluntarily waiving or relinquishing its jurisdiction in favour of the Court. Although this idea was contested by some States, which argued that it seemed incon- sistent with the concept of complementarity, it appears to follow logi- cally from that concept: the international court should intervene only in a situation of default by a competent national jurisdiction. Hence, if the competent State determines, for whatever reason, that it will not exercise its right of jurisdiction, it should be entitled to decline the exercise thereof and open the door to the ICC’s intervention in order to avoid impunity. Finally, it was stated that these exceptions to national juris- diction should be considered even before the ICC Prosecutor initiated an investigation, arguing that even the investigation might interfere with the exercise of national jurisdiction. At the same time, if a case was being investigated or was pending before a domestic court, the international court was expected to suspend its jurisdiction, although it could resume its investigation if the competent State desisted from 3322 Paragraphs 2 and 3 of Article 17 refer to the criteria that the Court should apply in deciding the admissibility of a case. Reference is made to proceedings being taken “for the purpose of shielding” a person from criminal responsibility, “unjustified delay” in the proceedings, or acting in a way which “is inconsistent with an intent to bring the person concerned to justice”. RICR Mars IRRC March 2002 Vol. 84 No 845 159 its investigation, or if any of the exceptional circumstances mentioned above were established.33 Who determines if the International Criminal Court has jurisdiction? Once the possible situations in which the international court would be entitled to intervene had been determined, opposing views arose within the Ad Hoc Committee and the Preparatory Committee as to which body should decide whether the exceptional circumstances mentioned above were present. Some saw the approach adopted in the ICTY Statute as the rule to follow, considering that the said power needed to be vested in the Court itself. Reference was fur- thermore made to the provision in draft Article 24, which stated that the Court had to satisfy itself that it had jurisdiction. Since this is part of the powers of a judicial body, it is consequently up to the Court to determine whether it may commence an investigation or not. On the other hand, some delegations were against this proposal, considering that the precedent established by the ICTY was not representative of the current opinion of States, but that the Ad Hoc Tribunal was the product of very special circumstances. It was therefore proposed that standards be created which would apply to the diverse situations that may arise. Three options were tabled to resolve these questions: (a) the Court would exercise its jurisdiction only with the consent of the States competent to investigate; (b) the Court would determine its own jurisdiction, according to a series of criteria expressly laid down in the Statute; and (c) the Court would be free to establish its own jurisdiction within flexible parameters.34 Delegations saw the last two options as problematic because they did not require State consent for the opening of an investigation, a situation which they were not ready to accept. It was therefore considered necessary to study in depth the consequences of a refusal by a State of the Court’s jurisdiction.35 3333 Report of the Ad Hoc Committee, op. cit. (note 2), para. 51. 3344 Report of the Preparatory Committee, op. cit. (note 25), para. 162. 3355 Ibid., para. 163. 160 Complementary jurisdiction and international criminal justice 3366 Ibid., para. 164. 3377 Interested State was defined as “the State of which the accused is a national, the State(s) of which the victim or victims are nationals, the State which has custody of the accused, the State on which the alleged crime was committed (State of locus delicti) or any other State which could exercise jurisdiction in respect of the crime”. Ibid., para. 167. 3388 Ibid., para. 168. 3399 Ibid., para. 170. RICR Mars IRRC March 2002 Vol. 84 No 845 161 Working on the details: admissibility, non bis in idem, and judicial cooperation • Admissibility The ILC felt that in the draft Statute submitted by it the principle of complementarity was given operational expression in, inter alia, Article 35, which referred to admissibility. In this regard the Preparatory Committee thought that the range of situations in which the Court would have to declare a complaint inadmissible was greater than those considered by the ILC.36 Only interested States37 would be able to raise questions of inadmissibility which, according to the Committee, would have to be submitted before the trial starts or, at the latest, when it is opened by the Court.38 • The principle of non bis in idem The Preparatory Committee also considered the impor- tance of the principle of non bis in idem in determining the notion of complementarity. The prohibition on trying a person for a crime for which he or she has already been tried by the same or another judicial body has major implications for the Court’s jurisdiction, because it may impede an effective application of justice: a domestic court may wish to shield an accused person from a higher penalty by imposing a lower penalty, thus preventing the Court from taking any action. The Committee therefore determined that the principle of non bis in idem should not be interpreted in a manner that would allow criminals to escape from effective prosecution.39 At the same time, it was consid- ered that the Court should not have the power of judicial review of judgments passed by domestic courts. Hence it was decided by the Committee, and so drafted in its April 1998 proposal, that the prin- ciple of non bis in idem would not be applicable to the ICC when the proceedings held in the domestic court were for the purpose of shield- ing the accused from criminal responsibility or were not conducted independently or impartially, or took place in a manner inconsistent with the intent to bring the person to justice.40 • Complementarity and judicial cooperation: which juris- diction has priority? Under draft Article 53 concerning surrender and extradi- tion, a problem would arise in the event of competing requests by the ICC (surrender) and by a State (extradition). This prompted the Committee to present three options for Article 87, paragraph 6.41 A person may, for instance, be requested by a State for a common crime and by the ICC for an international crime.Which jurisdiction has pri- ority? Should the requested State extradite to the requesting State, provided there is a treaty obligation to do so, or should it surrender the suspect to the ICC? Some States argued that to give priority to the ICC would be inconsistent with the principle of complementarity, because it would make international jurisdiction prevail over national jurisdiction. Two remarks are called for here: first of all, consideration should be given to the relative impact of crimes under domestic law and international crimes. International crimes are those crimes the gravity of which shocks the international community; they are consid- ered as offences against humankind. It thus seems appropriate that pri- ority be given to the trial of forms of conduct that offend humanity over forms of conduct which, however terrible, will hardly reach the level of gravity of an international crime. Secondly, any confusion when talking about competing requests in a complementary jurisdic- tion framework should be avoided. If a domestic court claims jurisdic- tion over a person to be charged with international crimes, the ICC’s jurisdiction would have to yield precedence to that court. The result of the 50-year saga: the ICC Statute Without any doubt, the work of the Ad Hoc Committee was of fundamental importance for acceptance of the ICC. It allowed States to examine in greater detail an idea that was more than fifty years old. However, the events that were taking place during the 4400 Report of the Ad Hoc Committee, op. cit. (note 2), p. 45. 4411 Ibid., pp 135-136. 162 Complementary jurisdiction and international criminal justice nineties led States, probably for the first time, to recognize the need to create an international criminal tribunal, opening the path for an international conference that took place three years later. The efforts made by the Preparatory Committee did clear the way for the International Conference of Plenipotentiaries, held in Rome in June and July 1998.At the same time, the final product of the hard work accomplished by the three bodies concerned — the ILC, the Ad Hoc Committee and the Preparatory Committee — set the tone for the discussions held at the Conference.The fact that the com- plementarity issue was included in the agenda of the Committee of the Whole, instead of being assigned to a specific committee, may be interpreted as signaling sufficient agreement. The details of the appli- cation of complementarity were more controversial. But in the end, the notion was adequately integrated in various provisions in the Statute (though this does not mean that their interpretation will go smoothly), establishing a new precedent in the field of humanitarian law and international criminal tribunals. Defining complementarity: the Preamble and Article 1 As remarked above, complementarity is to be found in many different forms throughout the Court’s procedure, and even in the investigation phase to be carried out by the Prosecutor. First of all, the introduction to the complementary charac- ter of the Court was spelled out and emphasized in the Preamble:42 “(...) Emphasizing that the International Criminal Court established under this Statute shall be complementary to national jurisdictions (...)” 4422 The Ad Hoc Committee put forward two options for regulating complementarity: the first held that a statement in the Preamble to the Statute was insufficient and that more precision was therefore required in a specific provision to that effect; this was seen as a way of indicating the importance attached to this principle. An alternative view stated that the principle of complementarity could be elaborated in the Preamble; the rules of inter- pretation of the Vienna Convention on the Law of Treaties would be sufficient to deter- mine the context in which the Statute as a whole was to be interpreted and applied. Report of the Ad Hoc Committee, op. cit. (note 2), paras 35-37. RICR Mars IRRC March 2002 Vol. 84 No 845 163 This statement is supplemented by the preceding para- graphs, which establish the grounds for complementarity and the manner in which it should be understood: international crimes shock the conscience of humanity, threaten the peace, security and well- being of the world, and should not go unpunished; States have the main responsibility for taking the required measures to avoid impunity; and an international criminal court is needed, for the sake of present and future generations, to guard them against the most serious crimes of concern to the international community as a whole. As already proposed in the draft prepared by the Preparatory Committee, the Statute contains in Article 1 the formula establishing the Court’s jurisdiction: “An international Court (...) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. (...)” Triggering the investigation The preconditions for the exercise of its jurisdiction are spelled out in Article 12, under which the jurisdiction of the Court is automatically accepted by States that become party to the Statute. Hence, for the Court to exercise its jurisdiction, the following States must be parties to the Statute or must have accepted its jurisdiction in accordance with Article 12.3: (a) the territorial State (...); and (b) the national State. Under Article 13, the procedure is triggered by three pos- sible mechanisms: (a) referral by a State Party; (b) referral by the Security Council acting under Chapter VII of the Charter of United Nations, in which case the Court may initiate the investigation even if the national and territorial States have not accepted the Court’s juris- diction; and (c) by an investigation ordered by the Prosecutor on his or her own initiative. 164 Complementary jurisdiction and international criminal justice RICR Mars IRRC March 2002 Vol. 84 No 845 165 Conditions for admissibility: when is a State unable or unwilling to prosecute? • When can the ICC investigate? The issue of admissibility arises at the point when the Court examines the suspect’s judicial situation in terms of national jurisdiction: if the Court concludes that the matter has been submitted to a domestic court, it has to declare the case inadmissible. It is interesting to see that the misgivings expressed by many delegations as to the Court’s possible subjectivity when deter- mining a State’s unwillingness or inability to prosecute led to the def- inition of certain criteria which the Court must apply. Article 17 reflects the main elements of the relationship between the Court and domestic tribunals; it construes the jurisdiction of the Court in a neg- ative manner — saying what it cannot do, instead of defining what it can do. Nevertheless, this article sets a pattern for the Court’s intervention. For a case to be admissible, four conditions must be met, namely: • that no competent State is investigating or prosecuting the person concerned for the same acts that constitute the international crime; • that no competent State has decided not to prosecute; • that the person concerned has not already been tried; • that the case is of sufficient gravity to justify further action by the Court. These conditions should be seen as cumulative, i.e. all must be met to allow the Court’s intervention. The first requirement represents the situation in which the Court yields in favour of national jurisdictions. The second has elements of the first — primacy of domestic courts — and of the third, which relates to the principle of non bis in idem.The exception to which paragraph 17.1(c) refers is also covered by paragraph 17.2(a).The fourth requirement calls for a qual- ified intervention by the Court, in order to prevent it from being regarded as a substitute for domestic courts. • A difficult decision: determining “inability” and “unwillingness” More likely to be problematic are the exceptions to the aforesaid requirements. Certainly, affirming that a State is acting in bad faith or is unwilling or unable to prosecute is a serious accusation. If the situation ever comes about in practice, it is sure to be a source of contention.The Statute foresees three types of State conduct that may lead the Court to rule that a State is unwilling to prosecute: (a) when the proceedings have been instituted to shield the person concerned; (b) when an unjustified delay is considered inconsistent with a genuine effort to bring a person to justice; and (c) when the competent domes- tic court is not independent or impartial. Regarding the inability to prosecute, the Statute refers to the lack of effective mechanisms at the national level to gather evidence and testimony or to arrest the accused. The exceptions may consequently be classified as subjec- tive and objective. The former are found in the first three situations, and the latter in the situations described in paragraph 17.3. It is possible to interpret the first two elements of para- graph 17.2 as referring to the concept of bad faith.Thus shielding the accused or delaying indefinitely the proceedings may be ways of allowing the accused to go unpunished.The third situation may be due to external pressures, not only political but also, as mentioned by the ILC, threats by terrorist groups that may impede the proper course of the judicial proceedings. As for the objective conditions, it is clear that a State with- out sufficient means to gather the necessary evidence or to arrest the accused may be deemed unable to carry out an adequate investigation. In such circumstances, the complementary jurisdiction of the ICC is required. The question to be asked is whether all these conditions are consistent with the definition given for complementary jurisdic- tion.The answer seems to be in the affirmative, especially considering that Article 17 takes into account the various objectives set out in the Preamble, i.e. to avoid impunity, respect national jurisdictions and ensure that States adopt a responsible attitude towards grave violations lest they be divested, via exception, of primary jurisdiction over the case. • Articles 18 and 19: procedural aspects of admissibility Articles 18 and 19 complement the provisions laid down in Article 17. Article 18 establishes the procedure to be followed for 166 Complementary jurisdiction and international criminal justice RICR Mars IRRC March 2002 Vol. 84 No 845 167 rulings on admissibility. It should be stressed that this article calls for close contact between the Prosecutor and the competent State regard- ing the progress of an investigation or a prosecution at the national level.This precaution is intended to avoid any unjustified delay in the proceedings. On the other hand, Article 19 contains the rule — which many considered to be implicit in the judicial function — that the Court must establish that it has jurisdiction in any case brought before it. Its decision to admit a case may be challenged by the accused or by a State which has jurisdiction over the case, either because that State is already investigating the case or because its acceptance of the Court’s jurisdiction was required under Article 12. A synopsis of complementarity in the ICC Statute Without entering into a procedural analysis, the following outline should clarify this first stage of the proceedings, in which the issue of complementarity plays a more visible role: • Initiation of an investigation: the Prosecutor is in charge of this part of the proceedings and will take such action when a situa- tion is referred to the Court by a State Party or by the Security Council, or on his or her own initiative. The first and latter instances require that the territorial State or the national State have accepted the Court’s jurisdiction (Arts 9, 12, 13, 14 and 15). • The Prosecutor will notify his intention to open an investigation to all States Parties and to those States which would nor- mally exercise jurisdiction. Within one month, these States must inform the Court whether or not they are investigating or have inves- tigated the acts that constitute the subject-matter of the Court’s inter- vention. If this is so, the Prosecutor must defer to the State’s investiga- tion (Arts 15, 16 and 18). • If the Prosecutor finds that there is a reasonable basis to proceed with an investigation, he or she must submit to the Pre-Trial Chamber a request for its authorization. The Prosecutor may request this authorization even if the case is already being investigated by a State (Art. 15). • The Pre-Trial Chamber may authorize the Prosecutor to proceed with the investigation. This decision will not prejudice the subsequent determination of the Court regarding the jurisdiction and admissibility of the case. The Pre-Trial Chamber may also refuse the Prosecutor’s request, but that will not preclude a subsequent request based on new facts regarding the same situation.All these decisions are subject to appeal to the Appeals Chamber by the State concerned or by the Prosecutor (Arts 18, 19, 57 and 58). • If there is sufficient evidence, the Prosecutor will request the Pre-Trial Chamber to issue a warrant of arrest or summons to appear. Upon the surrender of the person to the Court, the Pre-Trial Chamber must hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. Once the charges are confirmed, the Presidency must constitute the Trial Chamber which will be responsi- ble for the trial (Arts 58 and 61). • In order to proceed, the Court must satisfy itself that it has jurisdiction over the case, based on the criteria set forth in Arti- cle 17. Its decision may be challenged by the accused or by a State which has jurisdiction over the case. If the challenge is made before confirmation of the charges, it will be referred to the Pre-Trial Chamber. Otherwise, it will be referred to the Trial Chamber (Arts 17, 19 and 82). This is the crucial moment when the Court will examine its relationship with national jurisdictions in order to determine its own jurisdiction, in other words, when complementarity comes to the fore. Other issues closely related to complementarity which emerge later in the proceedings, such as judicial cooperation, extradi- tion and surrender, and enforcement of sentences of imprisonment, are fields in which complementarity may also be discovered. Nevertheless, it is undoubtedly in the initial phase of the proceedings that comple- mentarity plays its central role, because consideration of it then coin- cides with that moment, so feared and so awaited, when the Court will evaluate whether or not it may commence its investigation or trial. Time will tell whether practice confirms this view or not. 168 Complementary jurisdiction and international criminal justice RICR Mars IRRC March 2002 Vol. 84 No 845 169 Concluding remarks Explaining how delegations at the Rome conference arrived at the text which was finally approved is not an easy task. One can speculate and say that agreement before the conference was suffi- cient and that the negotiations went smoothly. It is evident, however, from the media coverage of the conference, and from the attitude of at least one powerful State towards the final Statute, that this was not the case. A plausible answer is that States foresaw even before the Rome conference that complementarity was the only solution that could reconcile their interest in protecting national sovereignty with their altruistic concern about international crimes and impunity. At least one thing was sufficiently clear: a large majority of States wanted an international criminal court and supported the idea of its establish- ment. From the diverse proposals for the Court’s jurisdiction they were able to see that complementary jurisdiction could be a good compromise. What conclusions can be drawn from this process of almost ten years’ duration? • Humanitarian law has reached a stage where most States agree that it is in the interest of the entire international community to try individuals suspected of having committed grave violations of human rights and humanitarian law. It became clear, first during elab- oration of the Draft Code of Crimes against Peace and Security of Mankind and then through the ILC’s work on the establishment of the ICC, that in many cases States are unwilling or unable to prosecute at the national level. The only available solution was to vest an interna- tional body with the power to prosecute individuals. • The second point is closely linked to the first. States rec- ognized their concern about impunity, especially when dealing with international criminals. In view of the many problems that this type of trial posed for domestic courts, this new awareness of their obligations spoke in favour of an international forum which would represent the interests of the international community. • The concept of sovereignty still has a great impact on international law and international relations; States are not yet ready to give up these privileges. Faced with the necessity of dealing with international crimes, States could therefore accept a permanent inter- national court only if it acted on a limited basis, i.e. when the compe- tent States agree that appropriate action cannot be taken at the national level. States are not willing to allow an international body to impinge on their sacrosanct judicial authority. The sole way to gain acceptance for such a body was to create a mechanism that would complement national jurisdictions, thus a complementary jurisdiction. • The concept of complementary jurisdiction is not trouble-free; when, how, under what circumstances this mechanism will be triggered is still subject to further definition. Practice will cer- tainly refine and adapt what as yet only exists in writing. But the gen- eral aspects of complementary jurisdiction have been clarified at each stage of the negotiations: the ILC, the Ad Hoc Committee and the Preparatory Committee devoted a considerable amount of time to working out a clear-cut concept. And without any doubt, the Court itself will contribute to further clarification of its jurisdiction. ● R é s u m é Juridiction complémentaire et justice pénale internationale par Oscar Solera Cet article analyse le développement de la notion de juridiction complémentaire proposée par la Commission de droit international et adoptée dans le Statut de la Cour pénale internationale compte tenu de la nécessité de renforcer le système de justice criminelle pour éviter l’impunité. L’étude porte sur les discussions de fond qui ont eu lieu au sein de la Commission de droit international, du Comité ad hoc établit par l’Assemblée générale pour réviser le projet proposé par la Commission, et du Comité préparatoire des Nations Unies pour la création d’une cour criminelle internationale. Le résultat obtenu à Rome est surtout le produit de l’accord des États sur le besoin de la 170 Complementary jurisdiction and international criminal justice RICR Mars IRRC March 2002 Vol. 84 No 845 171 communauté internationale de disposer d’un organe juridictionnel international permanent chargé de statuer sur la responsabilité indi- viduelle relative aux crimes de caractère international. Mais cet organe doit permettre à la juridiction pénale nationale compétente de s’exercer au préalable et n’interviendrait qu’en l’absence d’une telle juridiction ou dans l’incapacité de celle-ci d’éviter l’impunité. Introduction Complementary jurisdiction: domestic vs.international criminal jurisdictions? The ILC and the definition of the ICC’s jurisdiction The main problem: the threat to sovereignty The ILC’s proposals The ILC’s draft Statute: the starting point Is complementary jurisdiction the best solution? General considerations regarding the ICC’s jurisdiction Exceptional character of the Court’s jurisdiction Who determines if the International Criminal Court has jurisdiction? Working on the details: admissibility, non bis in idem, and judicial cooperation The result of the 50-year saga: the ICC Statute Defining complementarity: the Preamble and Article 1 Triggering the investigation Conditions for admissibility: when is a State unable or unwilling to prosecute? A synopsis of complementarity in the ICC Statute Concluding remarks What conclusions can be drawn from this process of almost ten years’ duration? Résumé en français : Juridiction complémentaire et justice pénale internationale 
work_th7y2koh55gyjiukdafdu6q3g4	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221736291 Params is empty 221736291 exception Params is empty 2021/04/06-03:20:34 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221736291 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:34 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_timabh4mp5a4hf4yzv5u5sl6zu	----	Why the youth justice board is vulnerable Edinburgh Research Explorer Inside the Youth Justice Board Citation for published version: Souhami, A 2011, 'Inside the Youth Justice Board: Ambiguity and Influence in New Labour's Youth Justice', Safer Communities, vol. 10, no. 3, pp. 7-16. https://doi.org/10.1108/17578041111171041 Digital Object Identifier (DOI): 10.1108/17578041111171041 Link: Link to publication record in Edinburgh Research Explorer Document Version: Peer reviewed version Published In: Safer Communities Publisher Rights Statement: Souhami, A. 2011, "Inside the Youth Justice Board: ambiguity and influence in New Labour's youth justice", in Safer Communities 10(3) p. 7-16. DOI: 10.1108/17578041111171041. Final publication available at www.emeraldinsight.com General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1108/17578041111171041 https://doi.org/10.1108/17578041111171041 https://www.research.ed.ac.uk/portal/en/publications/inside-the-youth-justice-board(0280c67b-25c0-41f7-89e6-66b34bc7632b).html 1 Inside the Youth Justice Board: ambiguity and influence in New Labour’s youth justice Anna Souhami The announcement by the coalition government in October 2010 of its intention to dissolve the Youth Justice Board (YJB) and transfer its functions to the Ministry of Justice has once again plunged the youth justice system into a period of uncertainty. The promise by Minister Crispin Blunt, addressing the YJB convention in November, of “a once in a generation opportunity to think … about how we reform the youth justice system” (Blunt 2010) will have seemed wearingly familiar to those who have only recently lived through the New Labour government’s sweeping programme of reform. At the time of writing the YJB’s future hangs in the balance, with the House of Lords recently voting to reject the government’s plans to dissolve it. Yet in the debates surrounding its fate there has been a striking lack of clarity about what, if anything, the effect of its closure will be. While many in the Lords debate described an unravelling of a decade of progress, others have been more equivocal. As Rod Morgan, a previous Chair of the YJB, put it: “there may yet be a downside to its abolition… But I am not in mourning and doubt I will be.” (Morgan 2010). Drawing on an ethnographic study of the operation of the YJB, this article explores why it is so difficult to identify what would be lost by its demise. The research reported here involved an 18 month period of fieldwork from 2006-71. For one calendar year, research focused on the internal operation of the YJB, during which I was given access to almost all YJB internal activities and documents, observed meetings and interviewed staff throughout the organisation. A second strand of research explored the regional operation of the YJB and how it was experienced locally: I shadowed regional monitors, observed the YJB’s assessment processes and conducted interviews and focus groups with YOT staff. The aims of my research were simply to explore what this central yet little understood organisation did and how it did it. Yet, after extensive fieldwork, I still struggle to answer these questions. Indeed, the most common observation about the YJB by the staff within it that it was so difficult to describe. As a newly appointed Board member put it: 1 A full account of the research, including a detailed methodology, will be published in a forthcoming book provisionally titled ‘Governing Youth Crime’. 2 ‘This is the most puzzling organisation I have ever joined. I’ve never worked in an organisation where within three quarters of an hour someone couldn’t give me a reasonably coherent picture of what we do and how we work. No one here seems to be able to do it’. In fact, the confusion about these fundamental aspects of the YJB’s identity and role is unsurprising: the YJB is an inherently ambiguous organisation. This article explores why it is so difficult to articulate what the YJB is and what it does, and how this ambiguity has made it simultaneously highly insecure and extremely productive, enabling it to extend its influence and activities beyond those initially envisaged in New Labour’s reforms. First of all, the following pages explore how the YJB was initially conceived. What was it set up to do? Transforming youth justice The YJB was established in 1998 as a central strand of the newly elected Labour government’s radical programme of youth justice reform. Following an extended period of consultation (Labour Party 1996, Home Office 1997a, 1997b, 1997c, 1997d, 1997e, 1997f ) and the establishment of a Task Force on Youth Justice (Home Office 1998), the government concluded that the youth justice system they inherited was “in disarray. It simply does not work. It can scarcely be called a system at all” (Labour Party 1996:1). It was inefficient, inactive and excusing. It was inconsistent, with significant variations in provision, quality and outcome of services across different areas of England and Wales. And it was incoherent, with no single government department responsible for youth crime, resulting in conflicts between the Home Office’s “criminal justice” approach towards young offenders and the “welfare” approach of the Department of Health (Labour Party 1996:9 ). The solution was a ‘radical overhaul’ of the structures, services and culture of the youth justice system, intended to bring about a new era in the way in which youth offending was thought about and managed (Labour Party 1996; Home Office 1997d). The establishment of the YJB was the cornerstone of this approach. The YJB was a new, executive non-departmental public body (NDPB), accountable initially to the Home Office (now to the Ministry of Justice) and comprised of a Board of 12 members and a staff of advisors headed by a Chief Executive. It was intended to pull 3 together the supervision of the youth justice system from across government departments, consolidating their different approaches and providing direction and ‘leadership’ to youth justice services; provide a “national focus for youth justice issues” (Home Office 1997d: 10), giving youth justice a specific policy presence in central government; and allow for the development of consistent standards and a coherent approach to the provision of services across England and Wales (1997a, 1997g). In this way, the creation of the YJB aimed to encourage the emergence of a consistent, distinct system of youth justice in England and Wales (Allen 2005, Pitts 2001). To accomplish this, the YJB was given a wide range of statutory duties. It is responsible for the monitoring of all aspects of the youth justice system, on the basis of which it advises the Home Secretary on the operation and standards for the system, makes grants to local authorities, sets priorities for services (now delivered through newly created multi-agency Youth Offending Teams (YOTs)), identifies ‘effective practice’ in service delivery, and issues training and guidance for practitioners. In addition, in 2000 it became responsible for commissioning and purchasing secure places for children under 18. In order not to deflect from its monitoring and standard-setting role, it was decided the YJB should not manage directly local services (Youth Justice Task Force 1998: para 66)2. So, while YOTs were charged with a series of centrally defined duties and targets, they were given considerable control in the way in which these are carried out (Home Office 1997a, 1997g). This type of ‘governing at a distance’ is typical of a new form of relations emerging in contemporary crime control in which a devolving of autonomy to local agencies coexists with a tightening of regulation and surveillance of what they do (Crawford 1997). To this end the YJB established a vast network of monitoring processes through which it requires YOTs to provide an extensive array of information about the minutiae of practice, funding, management and outcomes. 2 The exception to this ‘arms length’ approach to the oversight of the youth justice system is the YJB’s relationship with the juvenile secure estate. The commissioning/purchasing relationship necessarily brings about a more direct intervention in the management and operation of these institutions. 4 The YJB was therefore given a central role in directing the culture, organisation and activities of youth justice in England and Wales. Its role has been described as “broad and powerful” (Muncie 2000:30), representing as an “unprecedented centralisation of control over the system” (Pitts 2001:168). However, in practice the operation of the YJB was simultaneously more extensive and more insecure than its statutory functions suggested. Eight years after its establishment, at the time my research began, the ambiguities and insecurities of its identity and role had started to become increasingly apparent. This was brought into focus by a marked shift in political climate. A changing climate In 2006 the YJB found themselves at a very different moment in Labour’s youth justice programme. Blair was coming to end of his period of office amid plummeting popularity. YJB staff described a fraught atmosphere in Whitehall: central government were “far less confident”, they were “pressing the panic buttons”. This was reflected in the way government worked: the cabinet office started to take direct control of new policy initiatives through the establishment of the Prime Minister’s Delivery Unit; major government departments were suddenly split and reorganised. The Home Office appeared particularly vulnerable. During the research period, public outcry about the handling of foreign national prisoners led to the forced resignation of Charles Clarke, then Home Secretary, and his replacement by John Reid who resigned less than a year after that. The Home Office was put under review and found unfit for purpose. Towards the end of the year, the prison population reached crisis point, leading to public criticism of government policy by several leading figures in criminal justice including the Chair of the YJB, Rod Morgan, and culminating in his resignation in January 2007. Within the YJB, staff sensed that they were operating in volatile political climate over which they had little control, and in which there were very sudden transformations of departments, practices and careers. In this context, the YJB’s position felt particularly 5 insecure. Not only was its ‘sponsor’ department under intense and negative scrutiny3, but as youth justice straddles many different departmental areas it was confronted with the risk of sudden policy changes from all directions. Moreover, it became harder for the YJB to demonstrate its effect. It no longer had the politically exciting role of bringing about dramatic and widespread change, but the more modest task of sustaining it. At the same time, it was evident that youth justice was no longer a priority within government. This in part protected the YJB from the vagaries of the political climate: as the Chair put it, the YJB were “not in John Reid’s [then Home Secretary] in-tray’. Yet the clear understanding was that scrutiny would eventually fall on the YJB, and when it did they would be in difficulty. The YJB’s position thus appeared precarious. This was made explicit by Baroness Scotland, then the Minister of State for Criminal Justice, addressing a meeting of the Board: “We’re doing all this in a very hostile environment which may change very rapidly. We’ve already lost one Home Secretary who was totally signed up to the agenda. We need to make sure this stuff is so embedded it can’t be done. We will be taken to the cleaners. … The YJB will be in a very, very painful position” In this context, it was felt particularly important for the YJB to be able to offer a compelling account of itself: as staff put it, “to tell a strong story”. Yet as the YJB became increasingly distanced from Labour’s original youth justice project, the difficulties in doing so became increasingly apparent. This appeared to be due to an inherent ambiguity in the structures and functions of the YJB that made its role difficult to define and articulate. As I will show, this ambiguity was often experienced by its staff as a source of deep insecurity, yet it appears to be precisely what has made the YJB a highly creative body, allowing it to widen and deepen its sphere of influence and grow into a significantly different organisation from that originally envisaged in Labour’s reforms. The following pages explore this in relation to two issues that became of crucial importance during the research, both of which went to the core of the YJB’s identity. Firstly, is it part of central government, or not? And secondly, what is its relationship with YOTs? 3 In fact, reflecting the instability of government organisation , since 2007 the ‘sponsor’ of the YJB has changed rapidly three times: from the Home Office to the Ministry of Justice, to joint ownership by Ministry of Justice and the Department for Education and Skills in November 2007, before reverting to sole sponsorship by the Ministry of Justice in May 2010. 6 Inside or outside government? The ambiguity of the YJB’s relationship with central government stemmed from its status as a non-departmental public body (NDPB). It was established as an NDPB partly because it could bypass civil service bureaucracy and bring about change quickly. Transforming the youth justice system was a vast task: as one official explained, if it was left to the Home Office it ‘would be like turning round a juggernaut, it would take years’. In addition, positioning the YJB outside central government allowed experts in the field a direct role in advising on youth justice policy, either as board members or as staff seconded from practice. At the time of its establishment, the independent status of the YJB was largely nominal. Many of those connected to the YJB had close connections to then Home Secretary Jack Straw: the first Chair, Norman Warner, had been Straw’s senior policy adviser; the Chief Executive, Mark Perfect, had been the co-author of the Audit Commission’s report on which the reforms had largely been based; other Board members had been Labour advisers or involved in the ‘Youth Justice Task Force’ set up by the government in advance of the Crime and Disorder Act. By 2006 however, the YJB’s relationship with central government had become more tenuous. The YJB had expanded steadily from a staff of six advisers in 1998 to an organisation of 212, the majority of whom had backgrounds not in the civil service but in criminal justice or related fields. The Chair and Board no longer had close links with government but were senior figures in related fields: as one Board member described them, they were simply ‘a bunch of passionate and committed individuals’. Further, as the organisation matured and became more deeply embedded, the YJB had inevitably started to develop its own culture and ethos to work with young people. The meaning of independence – and the YJB’s identity – was now at issue. There was a strong view among some in the YJB that their independence was an intrinsic part of their identity and thus of their role. Their distance from government allowed the Board to act as a ‘critical friend’ and publicly voice concerns about government policy. As one Board member put it, “I didn’t join the Board to get on 7 my knees. I joined it to make a difference” So, throughout his tenure as Chair, Rod Morgan strongly criticised the government for ‘demonizing’ young people through initiatives such as ASBOs, and widely publicised a crisis in the rising prison population. As he saw it, ‘this is the advantage of us not being civil servants and being in my position’. Yet others interpreted their position differently. One Board member said: Whether we like it or not, we take the King’s shilling. We are not an independent agency. We are funded by government, therefore we are an arm of government. … We are not a pressure group. The YJB’s statutory functions gave little clarity to their position. For example, their duty to ‘advise the Home Secretary’ was elastic enough to allow for either interpretation. As the Chair argued, public criticism of government policy could be seen as an intrinsic part of their role: “We have a statutory obligation to advise ministers if policy is not working’. However the meaning of the YJB’s independent status became a crucially important issue, not just of its identity but of its survival. By drawing attention to its contingent relationship with government the YJB risked being cut adrift, compromising their ability to influence policy and making their own position deeply insecure. As one Board member put it, “my view is that if we want to commit suicide we should carry on criticising government. If we want to be useful as an organisation, we should stop”. These issues crystallised around the launch of the Respect Action Plan in January 2006. The plan covered issues directly within the sphere of YJB interests, such as parenting, school attendance and involving young people in ‘constructive activities’ (Respect Task Force 2006). However, the YJB were not consulted in its development, only learning of the Action Plan the day before its launch. For many in the YJB, this was “payback” for Rod Morgan’s public criticism of ASBOs: by placing themselves in opposition to central government they had forfeited their influence within it. A visit by Louise Casey, the head of the Respect Task Force, to a Board meeting proved this perception correct. Responding to Board members’ frustration at being excluded from the initiative, she said: 8 “You need to make up your minds where you sit. There’s an expectation that you want independence, you can say what you want. … But it’s not unusual for a government producing something as contentious as this to work within government very privately. If you want to come out and criticise things that’s up to you, it’s your prerogative as an NDPB to do so. But you can’t have it both ways. I wasn’t treating you as part of the family”. However, the position of the YJB was in fact more complex than this. While it was a delicate balance, their ambiguous identity in fact placed them simultaneously inside and outside government: in Louise Casey’s terms, they could, and did, ‘have it both ways’. So, for example, it was the very uncertainty of their status that allowed the YJB - unlike any other body sponsored by the Home Office - to create for themselves the role of ‘critical friend’. This enabled them to adopt simultaneously a position as a public critic of government policy, whilst retaining a privileged role in those policy discussions . The ability of the YJB to slip between positions allowed them influence with different audiences both within and outside the youth justice system. In particular, the ability of the YJB to distance themselves from central government appears to have had a significant effect on their credibility among practitioners in the field. For example, as a result of Rod Morgan’s public criticism of government policies YOT staff felt that the Chair of the YJB “represents all of us sitting round this table”; with him at the helm of the YJB “we sleep better”; his resignation as Chair “fills us with dismay”. In the context of a relationship of control such credibility and trust was undoubtedly useful. In this sense, as well as being a source of insecurity, the ambiguous identity of the YJB was also productive, allowing it to retain influence with central government while maintaining credibility with those on whom it depended for the delivery of services. Arms length or hands on? A second area of confusion in the YJB’s role was its relationship with service delivery. As outlined above, in theory the YJB has an ‘arms length’ relationship with YOTs: it ‘oversees’ what they do by demanding regular performance data, but does not directly manage them. If YOTs fail to achieve their targets or provide their returns, the YJB can require the local authority to intervene but has little recourse for intervention itself. The YJB provides funding for YOTs which it could potentially 9 withdraw. While this forms a relatively small proportion of YOT resources it is clearly a significant amount4 and moreover is the only source of dedicated, ring- fenced funding for youth justice services. However, many officials felt financial sanctions would be highly unlikely: if a YOT was struggling, withdrawing funding risked significantly damaging already suffering services. As one official explained, their mechanisms of control over YOTs were thus somewhat intangible: “it [YJB] has had a clearly defined carrot but a rather undefined stick”. Staff explained that the YJB were therefore in the somewhat confusing position of being accountable for the performance of the youth justice system but not responsible for its services. Unsurprisingly perhaps, this was almost wholly misunderstood by those outside the YJB. As one official said, this was a source of considerable insecurity: If it goes pear shaped, we get the blame either way. Ministers won’t make the subtle distinction. It will wash back to the YJB. There’s no one else to blame. But moreover, the intangibility of what it was to ‘govern at a distance’ represented a serious challenge to the legitimacy and purpose of the YJB. If they did not have a clear and direct impact on local services, what did they actually do? As the then Chief Executive explained: “The problem for the Youth Justice Board is that the role has been very very difficult to articulate and describe … and its not understood and it’s difficult to explain and people just say ‘well are you responsible for [youth justice] or are you not, and if you’re not, what are you there for?’” But to confuse the relationship further, the YJB’s dealings with YOTs in fact developed in a very different way. This was enabled by their statutory duty to ‘monitor the operation of the youth justice system’, which again is open to a myriad of interpretations. A particular understanding evolved in the YJB in which it came to monitor not the performance of the entire system against particular targets, as originally envisaged (Home Office 1997a), but the operation of YOTs. Moreover, this data was not used to advise the Home Secretary on the functioning of the youth justice system (where broader aggregate figures are required) but, as a former Board member put it, “as a precursor to taking action where performance is failing” (Allen 4 In 2005-6, it formed an average of 20.5% of all YOT funding (Youth Justice Board 2006) 10 2005: 30). Thus the YJB required YOTs to provide vast amounts of case level data about they way they work with children, partners and programmes, how they do it and how often. This data was then returned to YOTs to encourage them to improve their practice. To facilitate this process, regional offices were established throughout England and Wales from which monitors visit local YOTs to ‘validate’ the data produced and track progress against closely prescribed ways of establishing and running particular schemes. Exploiting their ability as an NDPB to appoint non- governmental staff, the YJB specified regional staff should be have backgrounds in youth justice practice or related fields so that their input would have value and credibility. Thus, describing his regional monitor, one YOT manager said: “She understands what delivery’s about. She understands what I’m going through. She understands what delivery is. There’s no way that a civil servant can come and talk to me about social change or about policy implementation. They just don’t understand it’. Moreover, when YOTs were struggling, YJB staff could directly intervene: a team of performance improvement consultants was created to offer tailor made programmes for areas in which YOTs were failing. In this way, through the monitoring function, the boundaries between the YJB and YOTs became blurred, allowing for flows of people, information and ideas between practice and central government. At the same time, the distinction between the ‘arms length’ and ‘hands on’ relationship with service delivery became increasingly ambiguous. Yet while it made the YJB’s role hard to define and was experienced as a source of considerable insecurity, this ambiguity was, again, very useful, allowing the YJB to extend its control and influence in areas in which it ostensibly had very little. First, the form of monitoring that evolved gave the YJB a channel to provide detailed guidance and input directly to YOTs. As one regional monitor put it, ‘it’s our only chance to go into the YOT and talk to them about what they do’. YJB staff explained this role was both required and enabled by the new structures: YOTs found themselves swamped by a barrage of new policies and procedures, yet as all youth justice expertise youth justice was now drawn together in the YJB and YOTs there were simply no other outside sources of help. An official explained: 11 ‘If we don’t do it, who else will. There's no one else the YOTs can turn to. The only experience of youth offending is in YOTs, and at the centre. There’s no one else.’ At the same time, this form of input gave the YJB scope for control and intervention beyond that ostensibly allowed by their ‘hands off’ relationship with local services. The form of monitoring practices that evolved provided the YJB with access to a micro level scrutiny of the minutiae of service delivery and even the opportunity to intervene directly into local services. Further, through the self regulation it demanded, YOTs were co-opted into becoming part of their own control (e.g. Rose 2000). In this way, under the guise of support, relationships and advice, monitoring input also allowed for the extension and multiplication of surveillance and control (see also Garland 1985). But in addition, the development of the regional monitoring role appears to have allowed the YJB to widen and deepen their influence in localities, thereby helping embed youth justice services into the local landscape. Over the course of the decade, the Labour government’s plans for an ‘unprecedented era of devolution’ (Kelly 2006) led to a radical restructuring of local government in which strategy, priorities, funding and management of services increasingly became determined at a local level (Department for Communities and Local Government 2006). As a central body with limited levers of control and no physical presence in local authorities, the YJB’s ability to ensure that a focus on youth justice services was maintained locally was in theory very limited. Yet through the development of regional teams, YJB staff were now located in the centre of local networks and negotiations. One of the architects of the YJB’s regional strategy explained: “It was the YJB feeling, hang on, we’re the experts but we’re not being listened to so we need to have people out there who will be heard… I think it was a naked grasp for power, influence. We’ve got to be out there”. Further, the monitoring process itself also appears to have enabled YOTs to become more firmly established among their local partners. The forms of knowledge and data that the YJB demand are those that came to have a particular authority in government more widely. Through the reporting processes demanded by the YJB, YOTs very quickly had to have in place extremely sophisticated ways of generating, analysing 12 and distributing it. As agencies jostled for position and funding, the armoury of data they acquired put YOTs at a strong advantage locally. A YOT manager explained: “The performance framework of the Board began to put YOTs firmly at number one in the league in terms of being able to get extra money from their strategic forum because we didn’t have to do anything. …Performance framework, re-offending rates, school attendance rates. We just had all the management information. So we were extremely well armed going to any forum to argue for funds because we had it in our hands.” This appeared to have contributed to an increasing sense of status and confidence among YOTs. As one YOT manager put it, “We’ve probably moved to a position where we think we can do anything. OK, we know what we want, how are we going to get it.” After the YJB? In this way, the YJB evades easy definition. It is simultaneously inside and outside government; with an arms length yet hands-on relationship with local services. It has blurred the boundaries between practice and policy; between government and delivery. And it has been able to stretch its statutory duties into new areas of activity without clearly overstepping its defined role. It is the ambiguity inherent in its structures that has allowed it to slip between roles and identities easily, enabling it to expand its reach beyond that envisaged in the creation of New Labour’s youth justice programme. Yet at the same time, it is this ambiguity that makes the YJB insecure. In a volatile political climate, its slipperiness may appear both confusing and risky. It is not straightforwardly part of central government, yet is connected closely enough to be a particularly potent source of embarrassment should it choose to become one. It invests considerable effort and resources in monitoring youth justice services, yet cannot directly control or manage them. In this context, the difficulty of giving a clear account of what, exactly it is and what it does makes the YJB highly vulnerable. Of course, arguably the most important way for the YJB to give an account of itself is to demonstrate its effect. What have all these extended activities and efforts been for? How far has the YJB actually progressed the aim of the youth justice system and reduced youth offending? 13 Despite the importance of this question to any assessment of the YJB, it is not one that was asked by the coalition government in making the decision to abolish it. Indeed, ‘performance’ was not one of the ‘tests’ taken into account when deciding the fate of any of the 192 arms-lengths bodies dissolved by the government (House of Commons Committee of Public Accounts 2011: 3). Yet it is on the basis of its performance that the YJB may well be reprieved. The House of Commons Committee of Public Accounts (2011: 3) holds the YJB responsible for a fall in the number of young people entering the youth justice system, the number held in custody and the amount of reoffending committed by young people. At the time of writing, the House of Lords have voted to overturn the government’s decision to abolish the YJB due to its effectiveness. Indeed, Lord Woolf argued that ‘it would be sacrilege if.. we took out of the criminal justice system something that works’ (Hansard 28th March 2011: Column 961). For the moment, the official assessment appears to be that, whatever the YJB is, it works. This assessment will undoubtedly be held up to scrutiny over the coming months. However, while an analysis of the impact of the YJB is outside the scope of the paper, it is important simply to note that its effects cannot easily be captured by statistical changes in reoffending. First, any change in rates of offending – in either direction - cannot be straightforwardly connected to what it does. So, for example, it is widely acknowledged that policy changes in other areas of criminal justice, health or education can have a potent effect on rates of offending, whether through its impact on the lives of vulnerable young people and thus their offending behaviour, or on constructions of offending through counting rules, definition, or process5. Further, even if it were possible to demonstrate an unproblematic connection between the services the YJB supports and changes in offending behaviour (for discussion of the difficulties see for example Meyerson 1991, Souhami 2007), given its arms length relationship to service, the YJB has little control over how services are delivered locally and thus little ownership of the results. Changes in offending behaviour are instead produced in the complex flows between the centre and localities. 5 This was demonstrated most clearly during the research period when one of the YJB’s primary targets - to reduce the number of first time entrants to the youth justice system by 5% in three years – was derailed by a new police target to bring more offences to justice, effectively incentivising the police to prosecute more young people, who commit relatively minor and easily detectable offences. 14 But in addition, the most important effects of the YJB may be those least amenable to measurement. The slipperiness of the YJB seems to have allowed it to develop deeply embedded relationships between the centre and localities and a widened influence in local areas, while maintaining a position in the central policy making processes. In the context of an increasing incoherence at the centre and an increasing devolution of local government, this may well be of crucial importance in keeping youth offending on a national and local agendas, helping retain dedicated, ring-fenced funding for YOTs and preserving their presence and status in local authorities. In other words, it is this activity that may now underpin the task of maintaining a coherent, consistent, national youth justice system for which the YJB was established. However, questions of the YJB’s effects appear to be irrelevant to the decisions about its future. So far the coalition government has shown little interest in what the YJB does or the costs or benefits of its closure. Unlike its establishment, its proposed abolition has not come after an extended period of consultation and analysis of the needs of the youth justice system. Not even the Board was consulted about the decision to dissolve it (House of Commons Public Administration Select Committee 2011: para 26). Instead it comes simply as part of a rushed, headline-grabbing programme of cost-cutting wholly unrelated to youth offending. As such there is no plan for what, if anything will replace it. As befits an essentially ambiguous organisation, the effects of the YJB currently appear equally hard to describe and measure. It is likely that the full effect of its activities – and the full effects of its closure - will only become evident once it has gone. References Allen, R (2005): The role of central government and the Youth Justice Board. In Bateman, T and Pitts, J: The RHP Companion to Youth Justice. Audit Commission (1996): Misspent Youth. London: Audit Commission. 15 Blunt, C (2010): Address to the YJB Annual Convention, 24th November 2010. Available at http://www.justice.gov.uk/news/sp241110.htm (last accessed 1st March 2011). Crawford, A (1997): The Local Governance of Crime: Appeals to Community and Partnerships. Oxford: Clarendon Press Department for Constitutional Affairs (2006): Delivering Simple, Speedy, Summary Justice. London: DCA Garland, D (1985). Punishment and Welfare: A History of Penal Strategies. Aldershot: Gower. Home Office (1997a): New National and Local Focus on Youth Crime: A Consultation Paper. London: HMSO. Home Office (1997b): Tackling Delays in the Youth Justice System: A Consultation Paper. London: HMSO. Home Office (1997c): Tackling Youth Crime: A Consultation Paper. London: HMSO. Home Office (1997d) : Preventing Children Offending: A Consultation Document. London: Home Office. Home Office (1997e): Community Safety Order: A Consultation Document Home Office (1997f): Getting to Grips with Crime. London: Home Office. Home Office (1997g): No More Excuses: A New Approach to Tackling Youth Crime in England and Wales. London: HMSO Home Office (1998): Preventing Offending by Young People: The final report of the Youth Justice Task Force. London: HMSO. House of Commons Committee of Public Accounts (2011): The youth justice system in England and Wales: Reducing offending by young people. Twenty-first report of session 2010-2011. London: HMSO. House of Commons Public Administration Select Committee (2011): Smaller Government: Shrinking the quango state. Fifth report of session 2010-11. London: HMSO. http://www.justice.gov.uk/news/sp241110.htm 16 Kelly, R (2006): Speech by Ruth Kelly MP, Secretary of State for Communities and Local Government, to the LGA conference on 5 July 2006. Available at http://webarchive.nationalarchives.gov.uk/+/http://www.communities.gov.uk/index.as p?id=1501327 Accessed 11th April 2011 Labour Party (1996): Tackling Youth Crime: Reforming Youth Justice: A consultation paper on an agenda for change. London: Labour Party. Morgan, R (2010): “Axing the Youth Justice Board could be a bold step”. The Guardian, Tuesday 26 October 2010. Meyerson, DE (1991): “Normal” ambiguity? A glimpse of an occupational culture. In PJ Frost, LF Moore , MR Louis, CC Lundberg, and J Martin, (eds): Reframing Organizational Culture. Newbury Park, CA: Sage. Muncie, J (2000): Pragmatic realism? Searching for criminology in the new youth justice. In Goldson, B (ed): The New Youth Justice. Lyme Regis: Russell House Publishing. Pitts, J (2001): The new correctionalism: young people, youth justice and New Labour. In Matthews, R and Pitts, J: Crime, Disorder and Community Safety. London: Routledge. Respect Task Force (2006): Respect Action Plan. London: Home Office. Rose, N (2000). Government and Control. In D Garland and R Sparks (eds) Criminology and Social Theory. Oxford: OUP.183-208. Souhami, A (2007): Transforming Youth Justice: Occupational identity and cultural change. Cullompton: Willan. Youth Justice Board (2006): Youth Justice Annual Statistics 2005/06. London: Youth Justice Board. http://webarchive.nationalarchives.gov.uk/+/http:/www.communities.gov.uk/index.asp?id=1501327 http://webarchive.nationalarchives.gov.uk/+/http:/www.communities.gov.uk/index.asp?id=1501327 Transforming youth justice A changing climate Inside or outside government? Arms length or hands on? After the YJB? 
work_spm6fnrlvnacviv5oru56uzt4u	----	TOLERATION, DIVERSITY AND GLOBAL JUSTICE by Kok-Chor Tan A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Grzduate Department of Philosophy University of Toronto March I988 This dissertation is an examination of the problerr of global diversity and justice within a liberal framework. Specifically, it considers how hvo current influential but competing interpretations of liberalism, political liberalism and comprehensive liberalism, fare with respect to this problem. At another level then, this work is an evaluation of the important debate between these hvo conceptions of liberalism. Despite the current popularity and influence of global liberalism, libenl theory continues to he plagued by internal difficulties and tensions. For instance, what is the limit of liberal toleration? Should a libeml global order accept as legitimate nonliberal ways of ordering political society? And can a libenl global theory accept the idea of the rights of peoples? That is, lo what extent can an individualistic political morality endorse collective rights? These two related sets of questions are the motivating concerns of this work. Political liberalism and comprehensive liberalism offer different responses to these questions. While much of the current debate behveen these two views of liberalism has been within the context of a single state, I believe that extending this discussion to the global context will provide us with the basic concepts with which to clarify the global questions of concern to us. Moreover, and very interestingly, it seems to me that thus extending this debate will give us a new setting against which to further test each of these liberal conceptions, allowing us therefore an extra measure by which to evaluate this important contest within liberal theory. I argue that comprehensive liberalism provides an interpretation of liberal political morality which is more faithful to the basic liberal ideal that individuals be at liberty to form, pursue and revise their conceptions of the good life. By contrast, political liberalism, I contend, fails to give due weight to individual liberty. While this shortcoming is most vividly exposed in its global application, I show that it stems ultimately from political liberalism's mistaken stress on toleration as the fundamental libeml principle. First, I would like to thank my Area Examination Committee, Professors Joseph Carens, Frank Cunningham and David Dyzenhaus, with whom I first discussed the focus and scope of this dissertation. I have attended graduate seminars conducted by each, and their influence throughout this dissertation should be plain to those who are familiar with their work. Professors Cunningham and Dyzenhaus stayed on as Supervisor and Advisor to the dissertation, and I am fortunate to have enjoyed their close supervision, encouragement and generosity throughout the writing phase. Discussions with Professor Cunningham helped structure the dissertation, and his detailed and timely comments on the drafts of each chapter saved me from several important mistakes and omissions. He thoughtfully read and re-read more drafts than could have been expected. Professor Dyzenhaus went well beyond the call of duty in his role as Advisor. He was extremely supportive in many ways from the start, and provided thorough and valuable comments on each chapter which he would then carefully go over with me at our regular meetings. Thanks to them, writing this dissertation has been less daunting than it might have been. I also benefitted from conversations with friends and teachers, some of whom also read parts of the dissertation. At the risk of unintentionally leaving some names out, I should thank Ashok Acharya, Jean Baillargeon, Cheryl Cline, Jennifer Gibson, William Hayden and Yoni Schwartz, and Professors Danny Goldstick, Andre Gombay, James Graff and Bernard Katz. Professors Thomas Pogge (External Examiner), Ronald Beiner (Political Science), Derek Allen, and Mark Thornton provided helpful comments and criticisms during the Oral Defense, and I thank them for the thought that they have given this work. But my greatest debt is to Karen Detlefsen who not only read over many drafts, but also patiently discussed several of the points here while they were still in their crudest form. Her encouragement, support and presence made the writing of this dissertation actually rather enjoyable. Chapter Two has been published in a slightly modified version as "Liberal Toleration in Rawls's Law of Peoples," Ethics 10812, and I thank the editors and reviewers of Ethics for their helpful comments, and The University of Chicago Press for allowing me to reproduce it here. i i i TOLERATION. DIVERSITY AND GLOBAL JUSTICE TABLE OF CONTENTS CHAPTER0NE:INTRODUCTlON .................................................... 1 The Issues ................................................................... I Political and Comprehensive Liberalism ........................................... 3 Communitarians and Liberals ................................................... 10 .................................................. Recasting The Global Problem 14 The Strategy ................................................................ 15 ........................................ CHAPTER TWO: RAWLS'S LAW OF PEOPLES 21 Toleration and Political Liberalism .............................................. 21 Globalising Political Liberalism ................................................. 25 Comprehensive Views and Political Societies ...................................... 28 ..................................................... The Problem of Toleration 36 Conclusion ................................................................. 42 CHAPTER THREE: TOLERATION AND DIVERSITY: TWO LIBERAL VIEWS .............. 49 Comprehensive Liberalism ..................................................... 50 ......................................... Toleration and Philosophical Foundations 52 ................................................ Liberalism and State Intenrention 58 ................................................. State Power and State Coercion 63 Diversity and the State ........................................................ 66 CHAPTER FOUR: INDIVIDUAL RIGHTS AND STATE SOVEREIGNTY .................... 81 Individual Autonomy and Hierarchical Societies .................................... 81 ............................................................ Statesovereignty 84 The State a s a Moral Community ................................................ 90 ............................................... Nations and States in Ideal Theory 96 ...................................................... States in a Libeml World 97 CHAPTER FIVE: THE RIGHTS OF PEOPLES ......................................... 109 International Collective Rights ................................................. 112 Nations and Liberals ......................................................... 115 Libeml Justice and National Rights ............................................. 123 Collective Rights versus Individual Rights ........................................ 129 .......................... CHAPTER SIX: THE PROBLEM OF OPPRESSIVE CULTURES 140 ........................................................ Isolating the Problem 141 Protecting Cultures and Individuals: Having it both ways ............................ 144 .............................................. "Nonliberal" Cultures: Two Cases 148 Individual Restriction and Cultural Protection ..................................... 158 ....................................... Hard Cases and The Limits of Ideal Theory 162 ................................................................ Conclusion 165 ........................................ CHAPTER SEVEN: JUSTICE AND EQUALITY 174 ............................................. The Challenge of Global Inequality 175 ................................................. Rawls's Egalitarian Retraction 179 ........................................... Egalitarianism in Political Liberalism 185 ........................................ Two Objections to Global Egalitarianism 189 .................................... CHAPTER EIGHT: FROM THEORY TO PRACTICE 210 ............................................ Universality: Origin and Applicatior. 211 ................................................. Problems with Liberal Practice 219 ................................................ Towards a Liberal Global Order 225 ................................................................ Conclusion 231 BIBLIOGRAPHY ................................................................. 240 CHAPTER ONE INTRODUCTION T h e Issues For much o f its history, international relations theory was dominated by the school known a s International Realism, which held tlie view that international relations fall outside the bounds of morality. Realists believed states to be interacting in a global condition akin to a Hobbesian state of nature, motivated ultimately by considerations of power and security. But Realism, it seems to me, has been largely discredited today. Not only is the purported amoralism of Realism in the end questionable (for implicit in many Realists' arguments is the recommendation that state actors protect and promote their national interests foremost), but even as a descriptive view, it is far from 'realistic'. With the advent of the various international and regional organisations and conventions -- like the United Nations. the European Union, International Law, the Law of the Sea Convention, and the different international human rights declarations and covenants -- whose objectives are, purportedly at least, informed by nioral considerations, and with the increasing interdependence between the states of the world, the Realist picture of international society a s a state o f nature unresponsive to moral ideals is patently false.' With its demise, the focus of discourse on global ethics has now shifted to the different competing normative theories vying to fill the spot Realism has vacated, among which liberalism is generally regarded as the strongest contender.' But despite the current popularity and influence of global liberalism, liberal theory continues to be plagued by profound internal difficulties and tensions. Urgent questions remain unanswered, and liberals disagree heatedly among themselves over how these should be resolved. For example, what is tlie limit of liberal toleration? Should liberal global institutions and liberal states tolerate nonliberal states? Or should these be criticised in the name of protecting individual liberty? Second, can a liberal global 2 theory accept the idea of the rights o f peoples, the so-called 'third generation' of human rights? That is, can a political morality which regards the individual as the ultimate unit of moral worth, and entitled to equal concern and respect, coherently and consistently accommodate the notion of collectivistic or group rights?) These two related sets of questions are tlie motivating concerns of this work. Because much of the work done on liberal theory has been in the context of a single state, it will be helpful to quickly review the domestic counterparts of the above global questions to gain some purchase on the philosophical issues under contention here.' Consider first the toleration question. Liberalism prides itself on its tolerance of different social (e.g., cultural) ways of life; but it is also foremost an individualistic political morality in tliat it is a political morality concerned primarily with protecting and promoting the autonomy of individuals. Autonomy is generally understood as the capacity to examine and reevaluate, and revise if necessary, one's ends and goals in life. As Gerald Dworkin puts it, it is a "second-order capacity of persons to reflect critically upon their first-order preferences, desires, wishes, and so forth and the capacity to accept or attempt to change thesc in light of higher-order preferences and value^."^ At the first instance, these hvo liberal ideals need not conflict -- as long as a social way of life is liberal in cliamcter, i.e., is conducive to the exercise of individual autonomy. liberal toleration and individual autonomy are compatible and even complementary. But a difficult question arises when a way of life thwarts the autonomy of its own adherents. Obviously, brutally oppressive ways of life, tliat is, those wliicli violate tlie very basic liuman rights to life, physical security and integrity, sustenance and the like: and for which I shall reserve the term 'illiberal', are rejected by all liberals -- no political morality need pretend to be tolerant of or compatible with &I possible ideas of tlie good or ways of life. The difficult challengc for liberal toleration concerns what I shall refer to a s 'nonliberal' practices, namely practices which, while respectful of basic rights, reject other quintessential liberal-democratic rights, like the right of free expression and association, gender equality, equal liberty of conscience and tlie equal right of dissent and political participation. 3 Does tlie liberal principle of toleration require that the liberal state tolerate these nonliberal practices at the expense o f individual autonomy? Or should the liberal commitment to autonomy set the limits of toleration, thus deeming these nonliberal ways inadmissible? Turning to the question of group rights, there is an ongoing debate in domestic liberal theory over whether the libeml state should grant members of certain groups, in particular minority-l groups, special rights. Some liberals worry that granting minority groups special rights is tantamount to treating their conceptions of the good as more worthy, and hence a violation o f t h e "equal respect and concern" clause. They think that once the basic rights of citizenship are secured for all and equally enforced, there will be no need nor the justification to give minorities any special c~nsideration.~ Others argue that the idea of special rights for minorities is consistent with, and indeed required by, liberal equality. Two broad opposing liberal responses to these questions of toleration and group riglits can be identified. On the one side, we have liberals who stress toleration (within the limits noted above) a s the overriding liberal value; on the other, we have liberals who take individual autonomy to be fundamental. While these two opposing conceptions of liberalism can be represented or expressed in a variety of ways, they are commonly represented in the current literature by political liberalism and comprehensive liberalism respectively? Political and Comprehensive Liberalism Briefly, political libzralism holds that liberalism should not be understood as a comprehensive philosophy applicable to all o f a person's life and to the whole of society, but should be regarded strictly a s a political doctrine and tllus as one whose application is to be confined solely to tlie political contest of society. Tliis is because, so political liberals believe, liberalism must be detached from its own contentious moral or philosophical v i e w of tlie good human life? So while political liberalism does not 4 reject the ideal of individual autonomy entirely, it restricts its scope to the political realm. It is, therefore, only in a strongly qualified sense that political liberalism can be said to take toleration as the fundamental liberal value -- toleration is overriding (or fundamental) only after the ideal of autonomy as a political conception is secured. So, throughout this dissertation, political liberalism is understood to treat toleration as fundamental in this qualified sense.'' Comprehensive liberalism, on the other hand, is a political morality which remains fully comniitted to the comprehensive moral commitments of liberalism. and hence does not take the ideal of autonomy soleiy as a political ideal but a s an ideal applicable to the whole of life. In order not to obscure the point of contrast between comprehensive and political liberalism, it is important to distinguish at least two different senses in which political liberalism claims to be-, and to get clear as to which of these is being contested by coniprehensive liberals. One way political liberalism is political concerns the subject-matter ofjustice. As a political morality, its subject is the "basic structure" of society (i.e., its primary social, economic and political institutions), in contrast with what we may call ethics whose subject-matter is interpersonal beha\,iour and relationships, and the types of character traits one ought to cultivate " That is, liberalism as a political morality is concerned primarily with how to design and assess basic institutions within which human interaction takes place, and which determine "probabilistically" the nature of this interaction, rather than directly with specific human interactions t h e m s e l ~ e s . ' ~ Comprehensive liberalism, being a political morality, will have no quarrel with this sense of being political; it too regards the proper subject-matter of political n~orality to be the institutions of society. But a unique sense in which political liberalism claims to be political, one not shared by comprehensive liberalism, concerns the justification and, consequently, t h e z ~ p s of liberal politics. For the political liberal, liberalism is also political in that its "conception of justice is presented as a freestanding view," that is, as a conception independent ofany controversial philosophical doctrine, and 5 hence whose application is confined to just those aspects of society impervious to such controversies." On the contrary, comprehensive liberalism rejects the idea of liberalism as "fr2estandingu and hence does not restrict the scope of politics to just those "uncontroversial" concerns of society. It is this second sense of being political that is at stake here. As an aside, while it is correct under one description to say that political liberalism confines libemlism to the political, it can be said, alternatively and perhaps more accurately, that comprehensive liberalism has a wider conception of the political. But with this point firmly in mind, I will use both ways of describing the contrast interchangeably. I shall be saying more about each of these liberal views in due course, but we can roughly see now why each would take a different stance with regard to toleration and group rights. The political liberal will be willing to tolerate nonliberal group- ways of life as long as these do not reject libemlism understood strictly as a political ideal. The comprehensive liberal, because of her understanding of autonomy as an ideal applicable to the whole of life, will insist on the stronger requirement that ways of life also be liberal "internally" before they fall within the limits oftoleration. To anticipate a possible objection to my associating political liberalism with toleration-based liberalism, and comprehensive liberalism with autonomy-based liberalism, let me clarify a few points. I am not making the strong claim that these associations are logical ones. That is, I will grant that there is no necessary entailment between political liberalism and tolemtion liberalism, and comprehensive liberalism and autonomy liberalism. What I am suggesting is that there is a general tendency for political liberals to stress tolemtion as the basic libeml value in the sense described above, and comprehensive liberals to stress autonomy." More significantly, this dissertation shall take John Rawls to be the definitive and paradigmatic political liberal (for reasons I shall note later), and Rawls plainly regards toleration as the primary liberal value in his articulation of political liberalism.. The reason one might offer as to why political liberalism is distinct from toleration libemlism, and comprehensive liberalism from autonomy liberalism, is that the of a political theory is 6 logically distinct from the justification of that theory. Because, the reasoning goes, political liberalism is characterized primarily by its method ofjustifying liberalism, whereas toleration liberalism is essentially concerned with the scope or reach of liberalism, there is no logical connection between these hvo categories of liberalism; to treat them as identical is to commit a category mistake. I accept that these are two distinct liberal categories. but my point is it they are nonetheless intimately interdependent (hence the association we commonly see in the current literature). This is because the range or class of issues that can fall within the province of a political theory (i.e., its scope) is largely determined by how that theory itself is justified (or claims to be justified). Consider, for example, the relationship between the method ofjustification of political liberalism and its (limited) scope. The type of arguments available to the political liberal in justifying liberalism in the public domain, namely that which does not appeal to any comprehensive philosopl~ical or moral doctrines. constrains the scope of political liberalism by exempting certain issues from direct political judgement. namely those issues pertaining to comprehensive views. That is, if a liberal theory can be justified by appealing only to its political conceptions and not to its comprehensive moral doctrines, then issues involving comprehensive moral matters (like the role o f autonomy in private life) have to fall outside the domain of its political concern. Its scope, in other words, is delimited by its method ofji~stification.'~ Conversely, we can easily see how the justif;catory method o f comprehensive liberalism shapes its scope, giving it a wider range than that of political liberalism. Its ability to appeal to liberalism's comprehensive doctrines a s a justificatory strategy consequently makes it a liberal model committed to protecting the ideal of autonomy in all areas of life. Whether one should begin with a justification of a theory and then arrive at its scope, or begin with some considered judgements about the scope of politics and then work back towards a justificatory theory, is irrelevant for our purpose here. In reality, it seems to me, it is more the case of a combination of both: one may begin with some intuitions about the reach of politics and then work towards a theory to 7 ground these intuitions, but in turn will adjust her intuitions in light of the theory arrived at if necessary or, conversely, modify the theory if it fails to mesh with intuitions about new hard cases. The above describes the method of wide reflective equilibrium originating in Rawls, and developed by others like Norman Daniels and Kai Nielsen.'"ut it is precisely this tight interconnection behveen scope and justification that lends coherence to the method of wide reflective equilibrium. A denial of any interdependence between the scope of politics and the justification of theory would also deny this influential and widely endorsed method of moral reasoning. Moving onto the issue of group rights, liberals who stress tolerance are, as a rule, less willing to endorse such rights than are liberals who stress autonomy. l shall develop and defend this point more fully later, but let me outline here why I think this to be the case. Since political liberals strive to keep liberalism solely in the political arena (or, if we like, since they hold a narrower conception of the political), the question of cultural membership falls outside the scope of politics and hence cannot be o f concern to the state. For them, so long as the familiar basic liberal individual rights are equally protected for all citizens, including the right to free association and expression, the right to a cultural community is equally secured for all. But comprehensive liberals, because of their broader commitmznt to individual autonomy, are more willing, and indeed obliged, to justify and provide special protection for 'autonomy- conducing' cultural conditions when these are unfairly threatened. I n this dissertation, I propose to extend the politicallcompreliensive liberalism debate, hitherto largely confined to the domestic, to the global context. It seems that this debate will serve as a useful prism through which to clarify the global questions we noted earlier. This work shall thus move between domestic liberal theory and the international arena, borrowing and adopting concepts, arguments and issues previously raised in domestic discourse in one instance, and developing and applying these to the global setting in the next. While it is true that there isn't an equivalent of a global state, there are nevertheless global liberal institutions and even some powerful individual liberal states, what Lea 8 Brilmayer calls "hegmons", which agpioximate a global state ill many important aspects, including, as recent history showed us, having the capacity and authority to use force to enforce global resolutions and sanctions. Hence the central doctrines of liberal political theory, even though concerned primarily with state institutions, will provide us with the useful and indispensable conceptual tools with which to evaluate the norms of global liberalism and the institutions these generate." But an interesting reflexivity of a sort will be at play tl~rougl~out this work. Extent ing tlle political/compreliensive liberalism debate globally will allow us to critically reflect back on this debate. The global setting will provide new scenarios and challenges against which to further test each of the contesting liberal positions. Plainly, all things being equal, tlle position with the greater applicability and scope is the superior one. So our 'globalisation' of this debate, rather than complicating an already difficult debate, can provide us with new insights into the overall merits and flaws ofeach position. In fact, given liberalism's own universalistic aspiration, global applicability constitutes a crucial, if not a decisive. test of the tenability of any interpretation of liberalism. Moreover, in moving the debate away from the domestic context, the flaws and virtues of each of these liberal interpretations previously obscured (though not necessarily resolved) by domestic contingencies can be better exposed. This is because the global context accentuates certain central problems faced by each in its domestic incarnation, thus providing a more rigorous test against its main ideas. For example, that global diversity is more pronounced than domestic diversity will test the limits of liberal toleration and the demands ofgroup rights more stringently. That the right of exit is less enforceable against sovereign states than against nonpolitical associations within a country, and that the "liberalising effects" of liberal policy are less effective against nonliberal countries than against associations within a country, may render more vivid certain theoretical problems each interpretation faces, problems whicli may be mitigated to some extent by fortuitous circumstances in the domestic context and hence overlooked. Just as Plato once said that it is easier to grasp what justice is in a larger 9 unit -- "We should begin by inquiring whatjustice means in a state. Then we can go on to look for its counterpart on a smaller scale in the individual" - we too may say, distorting Plato's metaphor slightly, that globalising the political versus comprehensive liberalism debate will amplify each of these positions, making more visible and perspicuous their respective weaknesses and strengths. Hence, although the driving concern of this dissertation is the problem of global diversity and morality, it is at the core an evaluation of political liberalism and comprehensive liberalism. As is evident, my purpose here is not to defend liberalism's status as the dominant global theory against nonliberal alternatives, but more specifically to sort out difficulties within liberal theory itself. Only after differences within a theory are settled can its strongest version be fonvarded and defended against competing theories. So, if we like, we may read this dissertation as constituting the first part o f a larger project to defend global liberalism. My hypothesis is that comprehensive liberalism provides an interpretation of liberal political morality which is more faithful to the basic liberal ideal that individuals be at liberty to form, pursue and revise their conceptions of the good life. As most liberals accept this idea of liberty to be the basic principle of liberalism, I will take it to be the touch-stone liberal value!8 This value ultimately expresses the liberal ideal of autonomy, but because political liberalism is of the view that this liberty is best achieved by restricting the scope o f autonomy and treating toleration as fundamental (again within the range specified above), I shall occasionally refer to this touch-stone value more neutrally as "libeny" when a contrast is required. There are compreliensive liberals who opt for some other touch-stone value, most notably equality; but this difference, as will be elaborated later, does not affect substantively our basic debate over whether liberalism should treat toleration as fundamental." I have offered here only an indication of my approach -- details will be filled in as we progress, including what the relevant background conditions are for the proper exercise of liberty and the extent to wliicl~ these conditions constitute topics of legitimate political concern. Communitarians and Liberals It is commonly thought that the different conclusions concerning toleration, and group rights in particular, presented above reflect a dispute between liberalism and certain nonliberal political theories. It is typically believed that liberalism is a highly abstract universalistic and individualistic political morality, requiring that we put aside social and historical contingencies about persons, like their religion, ethnicity or culture, for tlie purposes ofjustice. As John Rawls has famously put it, these contingent facts about individuals are "arbitrary from a moral point of view" and hence should not influence our decisioos concerning the rights and freedoms to which individuals are entitled.? On the other side, particularistic values (e.g., the idea o f group rights) are commonly associated with nonliberal political moralities wliicli reject this perceived radical individualism and universalism of liberalism, and which hold instead tliat morality cannot be indifferent to the particular historical and social circumstances of societies. In recent philosophical debate, the position known as "communitarianis~n" is most frequently fonvarded as the particularistic alternative to the universalism of liberal morality. So, before embarking on our discussion proper, I think it will be helpful to quickly survey this famous dispute between liberalism and communitarianism. This will allow me to show more explicitly the sense in which tlie supposed tension between individual rights and group rights, and tliat between autonomy and toleration, can be understood a s tensions within a liberal framework. My purpose here is not only to justify my liberal framework but also, crucially, to leave behind us ccrtain extraneous arguments which may obscure the discussion to come. Communitarians do not constitute a monolithic group hostile to liberals (as liberalisni is not a unitary position), but as a whole, communitarians reject liberalism's stress on individual autonomy. They question tlie liberal faith in the capacity of individuals to abstract from their social particularities and to evaluate their ends and goals from a socially unencumbered vantage point. Michael Sandel, for instance, rejects the liberal idea oftlie unencumbered self, a self whicli is 11 capable o f stepping back from her socially defined ends. Others like Alasdair Maclntyre argue that liberalism ignores the important relationship behveen individuals and their community, that individual well-being is fundamentally tied to membership in a flourishing community. And Michael Walzer criticises the universalism o f liberalism, arguing thatjustice is dependent on the history and tradition of a community. The above is a radical simplification ofvarious communitarian positions, but we can see the sense in which communitarians, a s a whole, hold that morality is particularistic, in opposition to the universalism of liberalism, and why they emphasise, consequently, the need to sustain and foster community life, in opposition to liberalism's emphasis on promoting and protecting individual a ~ t o n o m y . ~ ' Even though the liberal versus communitarian debate began within the domestic context, it was easily extended to the international sphere by several philosophers. Walzer himself, for instance, has presented a communitarian defence of state sovereignty against the liberal defence of individual rights over sovereignty advanced by liberals like Charles Beitz.12 Another communitarian, David Miller, has argued for a communitarian theory of global justice which gives priority to one's fellow nationals, in contrast to the universalistic theory of global justice proposed by some liberal^.^' The co~iflict between the norms of individual rights and state sovereignty or national self-determination is thus seen by many to be the global version of the liberal/communitarian dispute. One important liberal response to the communitarian critique is to incorporate many of the weaker communitarian claims, most signiticantly, the claim concerning the importance of community to individual well-being. Liberals argue that they do not, and need not, deny the basic premise that our ends and goods are defined by and derive their worth from the practices and traditions of our community." Indeed, more specifically, unlike the communitarians who tend to be notorious for leaving mtlier vague their conception of community, many liberals go further and argue that the cultural community is that morally relevant community?' 12 Wliat many liberals do reject are the stronger communitarian claims, most notably the claim that some of our ends are fixed and unrevisible, and the ensuing normative conclusion tliat the state ought to support and engender these fixed ends rather than promote our capacity for revising them.? They point out that communitarians have misunderstood the sense in which liberalism considers the self to be prior to its ends. For liberals, tlie self is prior to its ends speaking "in the sense tliat no end or goal is exempt from possible self re-examination"; and none of this implies the belief tliat the self is prior ontololrically speaking in tlie sense of being defined independently of its ends." The liberal response seems to me to successfully refute the conimunitarian challenge. Wliat is c relevance from the normative point of view is not the question whether individuals or groups are prior, but how individuals who are socially formed can be enabled to examine their social values and traditions. However, in having to acknowledge and incorporate some of the communitarian claims, liberals succeed only in reformulating the challenge of particularism associated with group rights and group toleration into a challenge from within liberalism itself rather than disann that challenge entirely. As Amy Gutmann has said, the failure of tlie communitarians "suggests not tliat there are no communitarian values but that they are properly viewed as supplementing rather than supplanting basic liberal value^.'^' So, in accepting (explicitly now tliat wliicli was previously only implied) the communitarian claim that individual well-being is dependent on and defined by one's membership in a flourishing comniunity, liberals have accepted as pressing and poignant questions concerning the relationship between tlie state and community hitherto relegated to tlie background or taken for granted. They must now ask whether a liberal concern for the individual translates into a liberal endorsement of particular group ways of life given the importance of community to tlie individual. The universalistic and individualistic commitments of liberal morality, rather than being directly at odds with particularistic and collectivistic ideals like group rights, may now in fact require the endorsement of these ideals." So, once tlie dust has settled, it is revealed tliat the particularistic commitments of the 13 communitarians are shared by liberals also, and consequently any difficulties these may pose for the universalistic values of liberalism are tensions between competing liberal goals rather than challenges to liberalism. Unsurprisingly, it has become evident that many prominent communitarians are not so much antiliberals as advocates of different understandings of liberalism. Thus Walzer now says that "the communitarian correction of liberalism cannot be anything other than a selective reinforcement o f those same values or ... a pursuit o f t h e intimations of community within them." Likewise, Charles Taylor (who is typically regarded by many as a communitarian) does not argue so much against liberal politics a s against the traditional individualistic and neutralist account of l i b e r a l i ~ m ? ~ That these "communitarians" regard themselves a s defenders of an alternative conception of liberalism, rather than as its detractors, is a further indication that the tension between particularism and universalism is not necessarily a dispute between liberalism and its enemies?' In fact, liberal philosophers are now telling us that the commonly perceived hostility of liberalism towards the ideals of particularism and collectivism is only a recent misconception and misinterpretation of liberalism (for reasons we shall further note in Chapter 5). In its earliest articulation, the liberal tradition regards particularistic concerns, like group rights, as legitimate liberal concerns!' It appears then, that even as the communitarian criticisms have been soundly countered by liberals, communitarians deserve credit for reminding liberals of their own tradition, of alerting them to their recent neglect of the community and its relationship to the individual. The community has been restored to the forefront of liberal theory largely because of the criticisms of the communitarians, and so it has become, once again, a legitimate subject of liberal concern?' If that which is of substance in the communitarianlliberal debate can be re-interpreted as rr debate within liberalism, the politicallcomprehensive liberalism debate seems to me to aptly capture and bring to centre-stage much of this. For as we shall soon see, political liberalism and comprehensive liberalism have each accommodated the communitarians in different ways and to different degrees, and so can serve 14 as platforms on wliich to re-present some of the legitimate concerns of the communitarians but without entangling them in distracting extraneous discussions concerning tlie priority of the self and different conceptions of morality which have tended to dominate (and obfuscate) the communitarian arguments. Recasting The Global Problem The tension between the internationally accepted norms of individual rights and the norms of sovereignty and self-determination can therefore be correctly read as a tension between two different liberal commitments, that is, a conflict within liberalism itself, and hence potentially resolvable on liberal terms. As with communities in the domestic context, liberals should be concerned with collectivities like nations and even states if it is the case that one's nationality, or citizenship, gives worth and meaning to one's goals and ends. In this case, a universal concern for individual rights could entail tlie tolerance and even special concern (in the form of peoples' rights) for the particular forms of nationality and political membership of persons. Liberal theorists accept this recasting of tlie global tension. Beitz in his survey oftlie global conflict between individual riglits (which he calls tlie cosmopolitan ideal) and state sovereignty (the national ideal), points out that this conflict is not one between liberal and nonliberal ideals, but a conflict within liberal morality itself, "a conflict between different categories of reasons, each of which is capable of motivating the will, and neither of which is obviously suspect or inadmissible.'" Similarly, Michael J. Smith tells us that in current international affairs, "[tllie hard questions of global distributive justice, the nature of the international trading system, the scope and enforceability of international law, and the problematic place of national self-deterniination in an interdependent world are debated in terms basic to the liberal traditi~n."'~ And Stanley Hoffman treats sovereignty, self-government or democracy, national self-determination and liuman riglits as four liberal norms but regrettably "norms in conflict and a source o f complete liberal disarray."16 15 To be sure, the fact that the tension behveen the norms of individual rights and those of sovereignty and self-determination can be examined within a liberal framework does not by itself guarantee that liberalism is the only viable framework for a normative global theory. But, as I said earlier, sorting out any disputes within a theory is one important first step towards defending it against alternative theories. T h e Strategy I shall start by examining political liberalism and its global application. For this purpose, I propose to rely primarily on the later works of John Rawls. Given Rawls's prominence in contemporary political philosophy and the fact that his Political Liberalism is the most complete and influential statement of political liberalism to date, it is not unreasonable to regard Rawls as the exemplary political liberal. But more importantly, Rawls has recently applied the central ideas of his political liberalism to the global context, and so in taking him to be representative of political liberals, there is no need to speculate as to how a political liberal might extend her conception of liberalism to the global situation. Chapter 2 reviews Rawls's political liberalism and his global application of it. Here I reject Rawls's stance that nonliberal regimes fall within the limits of liberal toleration by pointing out certain fundamental differences between nonlibeml comprehensive views and Rawls's well-ordered hierarcliical societies. More significantly, 1 show that the idea of tolerating nonlibeml views is problematic from the outset and why this serious problem is accentuated in the global context. Chapter 3 offers a defence of comprehensive liberalism. I argue that Rawls's criticisms of comprehensive liberalism are either exaggerated or apply also to political liberalism; positively, I argue that comprehensive liberalism can better ground the idea of group or collective rights, and so consequently is a liberalism more hospitable to diversity than is political liberalism. Chapters 4 and 5 extend comprehensive liberalism to the global context. Chapter 4 shows that a 16 comprehensive liberal global theory will be fully committed to individual human rights and that its tolerance for different ways of ordering political society is limited by this commitment. But in spite of this individualistic strain in comprehensive liberalism, Chapter 5 argues that it is nonetheless able to ground many of the commonly proposed rights of peoples, including the rights to self-deterniination, to development, and to a cultural identity. Thus, any concern that a liberal global theory based on comprehensive liberalism will be radically individualistic is shown to be unfounded. But this dualistic commitment of comprehensive liberalism to both individual rights and peoples' rights may be seen by some to be an attempt at squaring the circle. Because of the fact of nonliberal cultuml ways of life, they feel that a liberal concern for culture lies in a serious tension with its commitment to liberty. 1 consider this possible objection in Chapter 6 and show why the difficulty it poses is for the most part avoidable in practice. And in so far as the demands of culture and individual rights do in fact pose a real dilemma, I point out that this is in no small measure the result of serious social and economic inequalities between societies. Thus Chapter 7 reasserts a defence of global egalitarianism along the lines recently put forth by some liberals, and argues that the failure of Rawls's global theory to adequatcly address the problem of global inequality exposes another shortcoming with political liberalism. Finally. Chapter 8 concludes our discussion by exploring schematically the applicability of the normative ideals I propose, and outlines how we can reasonably hope to move from theory to practice. ENDNOTES I . For further discussion on Internatio~ial Realism. see Charles Beitz's classic treatment in Politicnl - Theorv and International Affairs (Princeton: Princeton Univ. Press, 1979). Part One. See also Jack Donnelly, "Twentieth Century Realism," in Traditions of International Ethics, ed. Terry Nardin and David R. Mapel (Cambridge: Cambridge Univ. Press, 1992): 85-1 11. 2. See, e.g., Stanley Hoffman, "The Crisis of Liberal Internationalism," Foreign Policv No. 98 (1995): 159-177; also Michael Joseph Smith, "Liberalism and International Reform," in Traditions of lnternational Ethics: 201-224. 3. This famous formulation of liberal equality is Ronald Dworkin's. Takine Rizhts Seriously (Cambridge: Haward Univ. Press, 1978), pp. 180-83. 4. There are notable exceptions of course. Brian Barry, Beitz, Lea Brilmayer and Thomas Pogge are some libenls who have been applying for some time now the ideas of domestic liberal theory to the global sphere. Brian Barry, Tlie Liberal Theow of Justice (Oxford: Clarendon Press, 1973). Chap. 12; Lea Brilmayer, Anierican Henemonv: Political Moralitv in a One-Superuower World (New Haven: Yale Univ. Press, 1994); and Thomas Pogge, Realisine Rawls (Itbaca: Cornell Univ. Press, 1989). Part 111. 5. Gerald Dworkin, The Theow and Practice of Autonomy (Cambridge: Cambridge Univ. Press. 1988). p. 20. Second-order preferences are preferences regarding one's preferences. 6. This list of basic rights follows closely Henry Sliue, Basic Rielits, 2nd ed. (Princeton: Princeton Univ. Press, 1996). 7. See, e.g., Jeremy Waldron, "Minority Rights and the Cosmopolitan Alternative," Universitv of Micliiean Journal of Law Reform 2513 (1992): 751-93. 8. This opposition has also been expressed in terms of Refonnation versus Enlightenment liberalism, and modus vivendi versus Kantian or Millian liberalism. See, respectively, William Galston, "Two Concepts of Liberalism," & 10513 (1995):516-534 and Cliarles Larmore, Patterns of Moral Comulexitv (Cambridge: Cambridge Univ. Press, 1987). These theoretical representations are of course ideal and paradigmatic types; the line between them is usually blurred in application, and even possibly in some theoretical formulations. 9. In Lannore's words: "We do better to recognize that liberalism is not a philosophy of man, but a philosophy of politics" (p. 129). See also John Rawls, Political Liberalism (New York: Columbia Univ. Press, 1993). 10. As said previously, no plausible political morality can take toleration to be fundamental without limiting it in some ways. 11. Rawls, pp. 11-12. 12. See, e.g., Thomas Pogge, "Liberalism and Global Justice: Hoffmann and Nardin in International Affairs," in Pliilosouliv and Public Affairs 1511 (1986): 57-81, p. 68. 13. Rawls, Political Liberalism, pp. 12-13. Amartya Sen also discusses these different ways of being "political" in his lneoualitv Reexamined, (Cambridge: Harvard Univ. Press, 1992). pp. 77-78. l4.See e.g., Will Kymlicka, Multicultural Citizenshio: A Liberal Theon, of M i n o r i ~ Riehts (Oxford: Oxford Univ. Press, 19951, p. 154 and his references. And as I pointed out in note #8, it is possible that some liberal theorists do not fit comfortably into either of these ideal-type categories. But this does not deny the importance of the distinction in contemporary debate. 15.niis, of course, does not mean that political liberalism has no implications for liow individuals can lead their non-political lives. One of the claims of political liberals is that there is no need to make direct political judgements about certain so-called private matters because the power of liberal public values will have "liberalizing" effects on tlie private sphere. But this cannot simply be asserted, and one of my goals in this work is to show why the liberalizing effects of liberal public ideals, so crucial for political liberalism, cannot be taken for granted. ]&See, e.g., Kai Nielsen, "How to Proceed in Social Philosopl~y: Contextual Justice and Wide Reflective Equilibrium," in Naturalism Without Foundations (Amherst: Prometheos Books, 1996) and his extensive references. 17. Brilmayer in justifying applying domestic political theory to international relations says that "to the extent that one state does possess ovenvhelming international power, I will argue, it p o s s e s s e s ~ power that must be evaluated in oolitical terms. For this reason, the standards that we would use to evaluate a world government (or for that matter a domestic government) are relevant in evaluating a hegemon as well." Brilmayer, p. 6. Brilmayer was speaking specifically of the United States. 18. T l ~ u s Mill writes: "The only freedom w11ich deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it." On Liberty (Indiana: Bobbs-Merrill Co, 1976), pp. 16-17. And Kant: "Freedom (independence from being constrained by another's cl~oice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is tlie only original right belonging to every man by virtue of llis l~umanity." n e Metawhvsics of Morals, trans. Mary Gregor (Cambridge: Cambridge Univ. Press, 1991), p. 63. Among contemporary liberals, Rawls says, "As free persons, citizens claim the right to view their persons as independent f ~ o m and not identified with any particular sucli conception with its scheme of final ends. Given their moral power to form, revise, and rationally pursue a conception of tile good, their public identity as Free persons is not affected by changes over time in their determinate conception of it." p. 30. More recently Will Kymlicka notes: "The defining feature of liberalism is that it ascribes certain fundamental freedoms to each individual. In particular, it grants people a very wide freedom of cl~oice in terms of liow they lead their lives. It allows people to choose a conception of the good life, and then allows them to reconsider that decision, and adopt a new and hopefully better plan of life." Multicultural Citizenshiw: A Liberal Theorv of Minoritv @g& (Oxford: Oxford Univ. Press, 1995), p. 80. 19. Ronald Dworkin is one liberal who stresses equality over autonomy. But as Gerald Dworkin. quite rightly it seems to me, puts it, "[Ronald Dworkin] does not use the word 'autonomy,' but in discussing the idea of treating people as equals, lie is arguing for equal respect for the autonomy o f citizens." G. Dworkin, p. 4, my emphasis. 20. John Rawls, A Tlieorv ofJustice (Cambridge: Harvard Univ. Press, 1971), p. 15. Rawls's original position wl~ereby parties to the hypotl~etical deliberation about principles ofjustice are to imagine themselves behind a "veil of ignorance", abstracting tl~emselves from their actual social standing and status, is commonly considered to be the epitome of the abstract individualism of liberalism. 21. Statements of these communitarian positions can be found in: Alasdair Maclntyre, After Virtue (London: Duckwortli, 198l), esp. Chaps. 14 and 15; Michael Sandel, Liberalism and the Limits o f Justice (Cambridge: Cambridge Univ. Press, 1982); and Michael Walzer, Soheres of Justice (New York: Basic Books, 1983). Another philosopher commonly classified by commentators as a communitarian is Charles Taylor. Althougli he is critical of some of the common communitarian claims, in particular its tendency toward moral relativism, Taylor shares the communitarian view on social ontology. See. e.g., Taylor, "Atomism," in Comm~~nitarianism and Individualism, ed. Shlomo Avineri and Avner De-Shalit (Oxford: Oxford Univ. Press, 1992): 29-50. 22. Beitz, Part 11; David Luban, "Just Wars and Human Rights," Pliilosonhv and Public Affairs 911: 161-181; and Michael Walzer, "The Moral Standing of States: A Response to Four Critics," Philosophv and Public Affairs 9/3 (1980): 209-229. 23. David Miller, "The Ethical Significance of Nationality," Ethics 98 (1988): 647-662. 24. For one influential liberal response to the communitarians, see Will Kymlicka, Liberalism. Communitv and Culture (Oxford: Oxford Univ. Press, 1989). 25. Kymlicka, Liberalism, esp. Chap. 7; see also Joseph Raz, "Multiculturalism: A Liberal Perspective," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1994); and Yael Tamir, .!ibd Nationalism (Princeton: Princeton Univ. Press, 1993). cl~aps. I and 2. 26. Kymlicka has argued that this claim simply violates our "deepest self-understandings" -- we are able to, and in fact do, step-back from our deepest ends, even if in a piecemeal manner, and critically evaluate them. Kymlicka, Liberalism p. 53. 27. Kymlicka, p. 52. Another way of putting this is to say that while society "is the most foundational. it is not the most valuable." Karen Detlefsen, "Diversity and the Individual in Dewey's Theory of Democratic Education," Educational Theorv Summer 1998 (forthcoming). 28. Amy Gutmann, "Communitarian Critics of Liberalism," Philosophv and Puhlic Affairs 1413 (1985): 308-322,320. 29. As Guhnann puts it, "[c]ommunitarianism has the potential for helping us discover a politics that combines community with a commitment to basic liberal values." Ibid., p. 320. 30. Michael Walzer, "The Communitarian Critique of Liberalism," Political Theory 1811 (1990): 6- 23, p. 15. Charles Taylor, "Cross-Purposes: The Liberal-Communitarian Debate," in Liberalism and the Moral Life, ed. Nancy Rosenbluni (Cambridge: Harvard Univ. Press, 1989): 159-182. 3 1. More accurately, therefore, the communitarian versus liberal debate sllould be called, in most instances, the liberal-communitarian versus liberal-individualist debate. But for the sake of economy. and because some communitarians remain unapologetically anti-liberal, 1 shall retain the former label expect in places otherwise required. 32. See, e.g., Kymlicka who notes that "tlie rights of national minorities were continually discussed and debated" by liberals of the nineteenth and early twentieth centuries. Multicultural Citizenshie, p. 44. 33. To be sure, other historical reasons for this increased liberal interest in tlie collectivistic and particularistic claims of cultural communities have been pointed out, two common ones being the rise of nationalism after the end of the Cold War and the reemergence of ethnicity within multicultural-liberal- democracies. But it would be too hasty to overlook the communitarians' tlieoretical contribution to liberalism here. 34. Beitz, "Sovereignty and Morality in International Affairs," in Political Theorv Todav, ed. David Held (Stanford: Stanford Univ. Press, 1991), 236-254, p. 253. 36. Hoffman, p. 169. CHAPTER TWO RAWLS'S LAW OF PEOPLES In "The Law of Peoples," John Rawls argues that while tyrannical regimes, i.e., states which are war-like towards other states a d o r abusive of the basic rights of their own citizens, do not fall within the limits of liberal toleration, certain nonliberal but peaceful and well-ordered states, what he refers to as "well- ordered hierarchical societies," meet the conditions for liberal toleration.' That tyrannical regimes are not to be tolerated is uncontentious enough for most liberals; what is more contentious in Rawls's thesis is his claim that WHSs are to be tolerated. It is this claim that I wish to refute in this chapter. Before beginning, 1 should point out that Rawls makes hvo fundamental assumptions in "The Law of Peoples" wliicli I shall grant for the present purpose. Rawls assumes that a) there are clear and well delineated peoples whose cultural or national boundaries coincide with the boundaries of their political communities (ie., he assumes a state to be more or less representative of a nation or people), and b) that these boundaries are morally beyond challenge, that how they were arrived at is morally irrelevant, for the purposes of ideal theory? We shall revisit these assumptions in Chapter 4. Toleration and Political Liberalism Rawls's law of peoples is the global application, or the "globalised" version ifwe like, of his domestically conceived political liberalism, and so I shall begin with a review of some ofthe basic ideas ofpolitical liberalism, especially that of toleration. In Political Liberalism, Rawls sees one of the main challenges facing a liberal democratic society to be the problem of maintaining legitimate stability in the face of the deep and irreconcilable moral, religious and philosophical diversity found in most contemporary states.) Authoritarian suppression of differences is of course not a legitimate option here. But neither is state imposition of liberal values across all areas of society legitimate because, Rawls argues, not all 22 individuals accept the values of liberalism -- for example :be idea o f autonomy -- a s applicable to every aspect of their lives. To members of some religious communities the idea that one can, for example, reevaluate and revise her religion-based conceptions of the good life is a foreign and incomprehensible one. It therefore would be unreasonable for the state to insist that they embrace this idea of autonomy because it is a value they cannot be reasonably expected to adopt. As he says, given the "many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgement in the ordinary course of political life," that is, the "burdens of reason", w e can expect reasonable persons to have "reasonable disagreements" over pl~ilosopl~ical, moral or religious comprehensive views? The state would in this case be enforcing a contentious view, a view not everyone can be reasonably asked to accept, and so would be illegitimate in the eyes of some. So, because of the facts of diverse comprehensive doctrines and the burdens of reason, legitimate stability can be attained only if liberalism itself is detached from its own contentious comprehensive moral doctrine and its application consequently restricted to the political realm. The liberal idea o f autonomy, for example, is applicable only to individualsw citizens and pertains only to their public rights and duties; it is not regarded as a vaiue applicable in private associations like the home or the church, or other cultural associations. As Rawls puts it, "This full autonomy of political life must be distinguished from the ethical values of autonomy and individuality, which may apply to the whole of life, both social and individual, as expressed by the comprehensive liberalism of Kant and Mill. Justice as fairness emphasizes this contrast: it affirms political autonomy for all but leaves the weight of ethical autonomy to be decided by citizens severally in light of their comprehensive doctrines.'' Thus "political virtues must be distinguished from the virtues that characterise ways of life belonging to comprehensive religious and philosophical doctrines, a s well as from the virtues falling under various associational ideals (the ideals of churches and universities, occupations and vocations, clubs and teams) and those appropriate to roles in the family life and to the relations between individuals."' 23 This move away from liberalism as a philosophy to govern all of life -- comprehensive liberalism -- to liberalism as a philosophy to govern only political life is the project of political liberalism. When liberalism is confined to the political in a pluralistic society with a liberal public culture, it is no longer a contentious doctrine but can become the subject of an overlaoninn co~isensus between most (including nonliberal) comprehensive views. When this overlapping consensus is in place, liberalism attains what Rawls call a "freestanding" status; at this point it does not depend on any particular comprehensive philosophical foundation (eg., Kantian or Millian) for support but is founded on "neutral ground" and can be equally supported by the different comprelie~isive doctrines present in ~ o c i e t y . ~ None of the above presupposes that all comprehensive doctrines present in a modern pluralistic democratic society will endorse political liberalisni. Some will simply be intolerant of different comprehensive doctrines; others may violate the public political rights their own membersu liberal citizens are entitled to (e.g., the rights to vote in public elections, to exit and form orjoin new associations, to employment and to a basic public education). These comprehensive doctrines are what Rawls refers to as "unreasonable" and are to be criticised and even challenged by the liberal state." Were political liberalism compromised or tailored accordingly to gain the allegiance of all existing comprehensive views, it would be "political in the wrong way". The overlapping consensus would in this case be more properly a modus vivendi, a means of accommodating and placating differences for the sakc of social stability, than a real consensus around liberal ideak9 Rawls stresses that the restriction of liberal principles to the political realm must not be read as a compromise of liberalism but rather as a requirement of liberal toleration itself, and unreasonable views fail to fall within the bounds of toleration. The overlapping consensus is more precisely then a consensus between reasonable comprehensive views, namely, views which are tolerant of other views and which do not violate the public political citizenship rights of their members (e.g., to vote, to exit and form orjoin new associations, to equal political participation, and so on). But, very importantly for Rawls, a 24 compreliensive view need not be "internally" liberal as well in order to meet the conditions of "reas~nableness".'~ In other words, the practices and traditions internal to a particular view need not be liberal in nature before we can expect it to be tolerant of other doctrines and respectful of the public rights o f their members. There are several examples of nonliberal but reasonable comprehensive views in contemporary liberal states: the church and the family are two cases, to use Rawls's own examples from a passage quoted earlier, of associations which are internally nonliberal yet reasonable in Rawls's term!' The internal arrangements of these associations cannot by themselves be the criteria for reasonableness because, given the fact of reasonable disagreement, there is no basis for questioning the truths o f their affiliated comprehensive views so long a s these views are not hostile to the values aftinned in the overlapping consensus. In short, political liberalism "does not attack or criticise any reasonable view"" even if these views are internally nonliberal. As long as a comprehensive view accepts liberal principles as binding in the public political sphere (as expressed in its dealings with other views and in its regard for the public political rights of its members), it lies within the limits of liberal toleration." It bears stressing then that for Rawls, liberal toleration is distinct from accomnlodation (modus m). The latter is a compromise (for strategic or practical reasons) of liberal principles, the former is a requirement and instantiation of liberal principles. It is in this moral rather tlian pragmatic sense that most liberals understand toleration." This distinction between accommodation and toleration is not merely semantic. When we find a way of life tolerable, we accept it as permissible regardless of our power to criticise or change it. On the other hand, when we say we are forced to accommodate a way of life because of practical constraints, we should be ready to act once the constraints are lifted. Indeed if we are forced to accommodate a situation only because of such constraints, then it seems that we are morally obliged to work towards the lifting of these constraints a s an immediate objective. There are, of course, some liberals who treat toleration as a modus vivendiJ5 But I think this is not a helpful understanding of liberalism. Modus Vivendi Liberals may provide sound advice for liberal 2s strategists concerning ~ l i a t to do about certain unreasonable ways of life, but as a theory, it is deficient because it confuses policy or strategy with principle. It tells us of tlie need to compromise liberal principles sometimes (hence tlie modus vivendi) but it does not tell us what those principles are. To treat toleration as pertaining only to our capacity for action empties it of much of its moral content. I n any case, it should soon be evident tliat my arguments against political liberalism should apply a fortiori against Modus Vivendi Liberalism sliould one insist on so understanding liberalism Globalising Political Liberalism Rawls extends the political liberal idea of toleration to guide tlie relationship between states. This short passage in the opening of "The Law of Peoples" sums up the extension project neatly: Just as a citizen in a liberal society must respect other persons' compreliensive religious, pliilosopliical, and moral doctrines provided tliey are pursued in accordance with a reasonable political conception ofjustice, so a liberal society must respect other societies organized by compreliensive doctrines, provided their political and social institutions meet certain conditions that lead the society to adhere to a reasonable law of peoples." Rawls wants his global toleration to be, as in tlie domestic case, a liberal ideal and not one based on a compromise of liberal principles in order to accommodate global diversity. The latter would be a quest for a modus vivendi not a quest for a genuine overlapping consensus. A reasonable law of peoples is first conceived, and only then it is asked whether nonliberal regimes can also freely endorse this law. In this first step oftlie extension, Rawls has representatives of liberal states participate in a global original position deliberation in order to arrive at the global principles ofjustice." As with the domestic original position, the parties liere are deprived of knowledge of certain contingent or morally irrelevant facts: tliey do not know "tlie size of the territory, or the population, or the relative strength of the people whose fundamental interests they represent ... tliey do not know the extent of their natural resources, or level of their economic development" (p. 54). The important difference, the significance of which shall be discussed in due course, with the global original position is tliat it is now a device of 26 representation where peoules or societies and not individuals are represented: "As before the parties [to the original position] are representatives, but now they are representatives of- (p. 48, my stress). Or as Thomas Pogge puts it perspicuously, it is deleeates of societies, and not individuals of the world, who are hypothetically represented at the global original po~ition!~ Under this hypothetical free and equal state, Rawls believes that liberal delegates would agree to the following principles: 1) Peoples are free and equal and their freedoms are to be respected by other peoples, 2) Peoples are equal and parties to their own agreements, 3) Peoples have the right to self-defence, 4) Peoples are to observe the duty of non-intervention, 5) Peoples are to observe treaties, 6 ) Peoples are to observe justice in war, 7) Peoples are to honour human rights (p. 55)19. The next crucial step of this globalisation project is to sce whether representatives of nonliberal states too would freely assent to these principles. Obviously, representatives of tyrannical states (i.e., states which are warlike andlor are abusive of the basic rights of their own citizens) will not accept these global principles. But rather than alter the global principles to accommodate these "outlaw regimes", as Rawis calls them, whicli would be blatantly an instance of a modus vivendi, of making global liberalism political and stable in the wrong way, Rawls notes that these regimes are to be publicly criticised, "contained" and even forcibly challenged in extreme cases (pp. 73-74). Rawls's stance in this "non-ideal" case of outlaw regimes is relatively uncontentious (for liberals) and need not detain us further here. It is with regard to a class of nonliberal states, the "well-ordered hierarchical societies" (WI-ISs), that Rawls makes a more contentious claim, namely, that these nonliberal societies are to be tolerated by liberal states. WHSs are states which meet these three necessary conditions: they are peaceful, they are 27 organised around a common good conception ofjustice and (consequently) are legitimate in the eyes of their own peoples, and they honour basic human rights (pp. 60-62):' Tlie second condition shows that WMSs are not liberal states (for no liberal state can be organised around a common good conception of justice)." Moreover, while WHSs are expected to respect the basic human rights oftlieir citizens (the third condition), tliese basic rights do not include quintessential liberal riglits like the rights of free speech (p. 62). democracy (pp. 69-71) and equal freedom of conscience (p. 63). Yet, Rawls argues, these two conditions together with the condition that a WHS be peaceful are sufficient to ensure that representatives of WHSs will also endorse tlie global principles agreed on by his liberal representatives. They would, for example, respect tlie principle of non-intervention and aggression, they would honour basic human rights and ensure that tlieir citizens receive tlieir share of duties and riglits as dictated by tlie conceptions of justice peculiar to tlieir societies?* Because they are in compliance with tliese global principles, WI-ISs qualify as states in "good standing" and hence "there would be no political case [on tlie part of liberal states] to attack tliese nonliberal societies militarily, or to bring economic or other sanctions against them to revise tlieir institutions" (p. XI). "Critical commentary in liberal societies would be fully consistent with tlie civil liberties and integrity of those societies" (ibid., my emphasis), but public criticism by liberal representatives in international political forums like tlie United Nations, tlie European Union and other similar international bodies is apparently ruled out?' Rawls has confirmed tliis point in a follow-up lecture to "Tlie Law of Peoples": "it is necessary to distinguish tliis continuing critical commentary [by individual citizens] fram hostile criticism and attacks (or propaganda) by rrovernments and their aaents and tlieir allies. This is ruled out of bounds as a kind of oraanised ~olitical action and so lacks ji~stification."~~ Thus Rawls treats WHSs as tlie global analogue of domestic reasonable but nonliberal comprehensive doctrines, and as the liberal state ought to tolerate reasonable nonliberal comprehensive 28 doctrines, so too should the global liberal order be tolerant of WHSs. Given the fact of reasonable disagreement, it would be contrary to liberal toleration to expect all well-ordered societies to be domestically liberal and to endorse all the essential liberal individual rights; "the law of peoples would not [in this case] express liberalism's own principle of toleration for other reasonable ways of ordering society" as Rawls has it (p. 80). A liberal global order, in Rawls's view, must have the moral space for certain nonliberal societies: it must be able to accommodate \VHSs, not as a matter of compromise, but as a matter of (liberal) principle. Comprehensive Views and Political Societies One may ask here whether it is evident that delegates of WHSs will accept a law of peoples which imposes even Rawls's thin list of human rights. As Pogge challenges, "[Rawls] gives no reason... historical or philosophical, for believing that hierarchical societies, as such, would incorporate these human rights into their favored law of peoples."2s This is an important question not just for "The Law of Peoples" but for the political liberalism project in general, and a complete defence of political liberalism must rise to this concern. But I wish to pursue another difficulty with Rawls's law of peoples here. Why wouldlshould liberal delegates be content with the list of global principles Rawls presents? Would they not want a more demanding list of global principles (one which, for one, demands the respect of all the essential liberal rights) and hence be less willing to count \VHSs as reasonable regimes or regimes in good standing? Liberals, after all, are concerned ultimately with individual well-being; why should they. then, tolerate regimes whose institutions sustain domestic inequality and are antithetical to any liberal aspiration citizens of these regimes may have? Indeed, we may ask whether these global principles are the ones citizens of WHSs themselves would accept were we to postulate a single-stage "all-inclusive [global] original position with representatives of ail the individual persons of the world" (p. 65) instead of the two-stage procedure Rawls favours where only delegates of societies are represented in the second 29 and global stage. As mentioned, Rawls holds tolerating WHSs to be analogous to tolerating reasonable nonlibenl comprehensive views in a liberal society. But this is a deeply flawed analogy. There are important differences between comprehensive views and state regimes Rawls forgives. First, in the case of comprehensive doctrines, what is permitted are moral, religious or philosophical differences. not oolitical ones. As mentioned earlier, while it would be unreasonable for a liberal state to forcibly promote a vision of the good life based on a moral, philosophical or religious comprehensive doctrine, the state should not hesitate to challenge (and contain) comprehensive views which advocate a nonliberal political order. These views threaten liberalism as a political doctrine itself and are denounced as "unreasonable." A political philosophy cannot consistently accommodate another competing political philosophy without undermining itself. As Ronald Dworkin puts it, any political theory must "claim truth for itself, and must therefore claim the falsity of any theory that contradicts it. It must itself occupy ... all the logical space that its content requires."26 A political philosophy, for reasons of consistency, must take a stance against any cotnpeting political philosophy. We should get clear, therefore, as to what liberals (can) claim to be neutral about. Liberalism claims to be etliicallv neutral in the sense that it strives to be impartial between different private conceptions of the good life. But it (because of this) cannot be politicallv neutral in the sense of being indifferent about how society is to be organised politically. This should be obvious: A commitment to ethical neutrality necessarily entails a commitment to a c e r t a i n w e of political arrangement, one which, at the very least, permits the pursuit of different private conceptions of the good. if one is politically neutral, one gives up one's stance on ethical neutrality -- one no longer can insist on apnrticular political order supportive of and conducive to ethical neutrality. Ethical neutrality is a stance, a political stance to - be precise, requiring a defence of a particular type of political theory. Thus a liberal who accepts political neutrality is not just spineless but risks self-contradiction --she says that one ought to be neutral between 30 conceptions of the good and yet one need not; that is, she believes in neutrality between conceptions of the good but is not ready to defend the poliiical order requisite for this ne~trality.~' Rawls himself rejects political neutrality in his domestic theory, as is evident from his unflinching stand against unreasonable views. He admits, although reluctantly, that when it comes to the crunch, when political liberalism itself is challenged, we may have to invoke some of liberalism's own comprehensive views (thereby doing that which "we had hoped to avoid") to justify putting dow~i tlie challenge?' But at the international level, Rawls advocates tolerating regimes with nonliberal ooliticnl institutions. He says that "whenever the scope of toleration is extended ... [tlhe criteria of reasonableness is relaxed" (p. 78) and so nonliberal politics, unreasonable in the domestic context, becomes reasonable in the international context. Accordingly, certain views not permitted in domestic liberal society are deemed pernlissible if expressed in foreign societies. It seems that while Rawls would say that a liberal state should criticise a domestic compreliensive view which forbids its members from exercising their public rights (like tlie right to vote in public elections), this same state should not criticise a WHS wliicli denies some of its citizens this same right. This seems blatantly inconsistent to me. Why does Rawls hold this position? Rawls does not provide a satisfactory answer here. He points out that although domestic liberalism begins from a political conception oftlie person as free and equal and rooted in a liberal public culture, to begin from similar assumptions in the international case would make the basis ofjustice "too narrow" (pp 65-66). This is indeed one of Rawls's expressed reasons for deploying a two-stage original position: "The difficulty with an all-inclusive, or global, original position is that its use of liberal ideals is much more troublesome, for in this case we are treating all persons, regardless of their society or culture, as individuals who are free and equal, and as reasonable and rational, and so according to liberal conceptions. This makes the basis of the law of peoples too narrow" (p. GG)." But why avoid this "too 31 narrow" basis for a law of peoples? Is it because liberal toleration requires that we do? Or is it because WHSs would not endorse the law of peoples othenvise? As mentioned. liberal toleration in the domestic context does not require toleration of nonliberal politics; indeed it must demand othenvise. Yet Rawls has given us no principled reason why it should be any different in the global context other than the fact of diversity of political cultures in the world. Absent a good justification, it appears that Rawls relaxed the limits of toleration simply in order to accommodate representatives of WHSs, to ensure that his law of peoples can be endorsed by some nonliberal states as well. This modifying of political liberalism to satisfy international conditions is, Teson points out, the fatal error of "The Law of Peoples". He writes: "[A] political theory cannot survive if one keeps amending its assumptions at every turn to reach results that do not seem to match the theory in its original form. This is simply a way of immunizing the theory against (moral) f a l s i f i c a t i ~ n . ' ~ ~ The seriousness of Teson's objection is fully appreciated once we recall one of Rawls' motivations for extending political liberalism to cover international relations: "In the absence of this extension to the law of peoples, a liberal conception of political justice would appear to be historicist and to annlv onlv to societies whose political institutions and culture are liberal. In making the case for justice as fairness, and for similar more general liberal conceptions, it is essential to show that this is not so" (p. 44, my emphases). That is, it is important for Rawls that political liberalism can be demonstrated to have global scope, that its basic ideas can be freely endorsed by (some) nonliberal societies as well. But ifthis endorsement is accomplished only by modifying some ofthe basic tenets of political liberalism in a seemingly ad manner (namely, by relaxing the limits of toleration without good reason), then Rawls has not succeeded in demonstrating the global applicability of his theory on his own terms. It appears then, his claim notwithstanding, Rawls's international project is, in the end, a project of m o d u ~ vivendi, of seeking a political compromise between liberal and nonliberal regimes, rather than that of achieving stability with respect to liberal justice.)' To accommodate WHSs, Rawls has his liberal 32 delegates agree on a global theory ofjustice whicli is overly genemlised and less demanding than a liberal global theory would be. Here, it could be objected tliat there is nothing counter-intuitive or obviously inconsistent about responding differently to domestic and international nonliberal pmctices. A liberal state, as a matter of practice or strategy, cannot always react in the same way to similar kinds of domestic and international violatio~is of liberties given the different conditions of domestic and international societies. One obvious instance of tliis difference is that there is no establislied enforcement body in global society to enforce judgements tliat a liberal state may make against nonliberal states. A liberal state cannot pass enforceable laws criniinalizing, say, female genital mutilation in another country tlie way it can within its own borders." Thus, it cannot help but tolerate certain abuses overseas wliich it would not condone at home. But this objection neglects tlie distinction behveen makine aiudeement and actine on that judeement?' Tlie fact that we may be (genuinely) compelled to act differently in similar cases does not necessarily entail that we have or ought to have judged these cases differently. That we may be forced to put up witli certain illiberal practices overseas because of practical constraints does not mean tliat we need to judge them morally acceptable. We still judge them unacceptable as we do similar doniestic abuses even tliougli we may not be able to act on these judgements the way we can in tlie domestic context. And as 1 mentioned earlier, there is a normative implication to making this distinction: if we admit tliat we are unable to act on a judgement becallse of practical constraints, then we should be ready to act on this judgement once the constraints are lifted. So, overlooking the judgement/acting distinction and thereby mistakenly claiming (as does tlie above objection) that we&&@ some foreign illiberal practices, when we are actually compelled to put up witli them, misses tliis important impli~ation.~' A second important difference between reasonable nonliberal comprehensive doctrines and WHSs which Rawls overlooks is tliat in the case of the former, individual members have recourse to democracy in the political sphere. They are citizens of a liberal-democratic state besides being members 33 of particular (nondemocratic) communities. So, even if the internal practices of their communities are undemocratic in nature, members of these communities are still able to exercise their democratic rights in tlieir other capacity as citizens?' In this way, tliey are, to a degree, able to influence public policies that may have some positive effects on the practices of their communities. (I shall say more later on how public policies can affect communal practices.) On the other hand, ordinary citizens of WHSs do not have this recourse. Unlike niembers of nonliberal private associations who are nonetlieless free and equal citizens of a larger democratic society, citizens of WHSs are not citizens of any democratic order. They do not, for esample, enjoy democratic global citizenship whicli may help rectify their lack of democratic rights in their own countries. Therefore, unlike members of nonliberal associations, citizens of WHSs do not have the opportunity to democratically influence esternai (i.e., global) policies wliich may help reform and democratise the institutions of tlieir own societies. The fact that WHSs are undemocratic seriously undermines Rawls's proposed two-stage original position. Recall that in tile second-stage, in the global original position where the principles of global justice are to be fleshed out, it is representatives of societies and not of individuals wllo are the parties to the hypotlietical deliberation. But if the representa:ives of WHSs are not democratically elected by their own peoples, it is very unlikely that tliey can meet Rawls's own stipulation that "the peoples tliey represent are represented reasonably" (p. 54). Accordingly, the two-stage procedure cannot merely be a methodological preference with possibly no consequential differences, as Rawls seems to suggest at one point?' On the contrary, whether we opt for a two-stage procedure or a single global procedure (which will provide a "device of representation" for all individuals of the world as opposed to societies) has obvious implications for the kinds of global principles we will arrive at. It is clear, for esample, that individuals reasonably represented behind tlie veil of ignorance will reject global principles whicli condone the kinds of institutional arrangements associated with WHSs. Individuals (unlike state 34 delegates) know that they could find themselves as lowly placed members of a hierarchical society when the veil is lifted: so, why would they accept global principles which would sanction tlieir possible subordinate status in tlieir own countries? Indeed, tlie two-stage procedure is especially objectionable if we remember that WHSs are not expected to envisage a domestic original position for determining tlieir domestic principles ofjustice. Consequently, not only is there no guarantee of the fairness of these domestic principles, but by allowing only delegates of tliese societies (who tend to be the ones benefiting from their domestic arrangements anyway) to be represented at tlie second-stage deliberation, tliese delegates are able to settle on global principles which accept tlieir domestic arrangements as beyond rebuke. Now, Rawls asserts that it is not implausible for a people organised liierarcliically in their own country to endorse global principles which treat all well-ordered societies with equal concern and toleration: "A people sincerely affirming a nonliberal conception ofjustice may still think their society should be treated equally in a just law of peoples, even though its members accept basic incqualities among themselves. Though a society lacks basic equality, it is not unreasonable for that society to insist on equality in making claims against other societies" (p. 65). But this depends entirely on&o speaks for the people. This point is especially crucial because we cannot expect all citizens of a WHS to sliare a common conception of the public good. Even if we grant the assumption that each state represents a national or cultuml entity (i.e., a people), we can still expect there to be internal disagreement over existing political arrangements and even over interpretations of cultural and traditional practices. Surely. it is not unrealistic to believe that members of castes or classes at the lower rungs of a hierarchical society would oppose the dominant values and traditions and the established institutional practices of their society were they empowered to do so. Given that Rawls allows nondemocratically appointed delegates to speak for citizens of WHSs, we must be very suspicious of tlie kinds of global principles tliese delegates will endorse, especially if tliese principles call for equal toleration between states at tlie 35 expense of equality between citizens within states. At this point, some comments concerning Rawls' second condition for a WHS, that it "meet[s] the essentials of legitimacy in the eyes of its own people" (p. 79), are in order. Now, Rawls does not mean by this that there can be no dissent at all in a WHS; in fact, lie explicitly allows for the "possibility of dissent" here. He says, however, tllat tlie opportunity for expressing any such dissent is "not, to be sure, in a way allowed by democratic institutions, but appropriately in view of the religious and philosophical values of the society in question" (p. 62). The crucial question here, then, is whether there can be disagreements in a WHS regarding the (restricted) procedures by which differences can be voiced. Rawls is not explicit on this, but it seems to me that he must also allow for disagreements at this basic level for the following reasons. First, given llis own "fact of oppression," i.e., tlie fact "that only the oppressive use of state power can maintain a continuing common affirmation of one comprehensive religious, pliilosophical, or moral doctrine,"" Rawls must concede that unless a regime oganised around a comprehensive good is successfully tyrannical (thus not a WHS but an outlaw regime), there will prevail certain fundamental disagreements over its basic institutional arrangements or structure, including over how dissent can be voiced. Second, it is quite implausible that members of, say, a caste society objecting to their caste status and the restrictions that follow it will accept, nonetheless, the caste-bound procedures by wliicli their objections may be raised. Opposing the one entails opposition to the other. As such, in accepting the possibility of dissent in a WHS, Rawls must also accept that there will also be disagreements over how dissent can be expressed. If tliere must be fundamental disagreements among citizens of a WHS, then the legitimacy condition, tllat a WHS "meet[s] the essentials of legitimacy in the eyes of its own people", cannot be understood literally to mean that citizens of a WHS i~&& accept its basic structure as just. "People" here does not refer to individual persons of a society but refers, more precisely, to an embodiment o f a 36 collective wav of life or to a&. In other words, a political society meets the essentials of legitimacy for Rawls when its basic structure is organised in accordance with its own history, conventions and traditions. This "communitarian" reading of the legitimacy condition fits neatly with Rawvls's elaboration of this condition: a WHS is a society organised around a comprehensive view, it has a comn~on-good conception ofjustice and its basic institutions are structured "appropriately in view of [its] religious and philosophical values" (pp. 61-62.64-65, 69-70);8 But a s mentioned, the fact that a society is structured according to its own history, culture and tradition does not rule out the possibility of dissension over its basic institutional arrangements?' To sum up the points made in this section, the main flaw in Rawls' global thesis is his belief that the global overlapping consensus between different political societies is morally equivalent to a domestic overlapping consensus between different comprehensive views.40 This is a seriously flawed belief because, a s pointed out, comprehensive views are unlike political societies in two important ways: the Tormer d o not insist on political diversity and they, moreover, operate within a larger liberal-democratic framework. The global overlapping consensus Rawls presents in "The Law of Peoples" is more a political compromise worked out between liberal and nonliberal state delegates than a consensus around genuinely liberal values. T h e Problem of Toleration The idea of tolerating nonliberal regimes is therefore objectionable. Is this a problem of application, that is, a problem arising from a mistaken application of basically sound ideas to the international case, in which case what is to be done is not to reject the teachings of political liberalism but to reapply them correctly? Or does this in fact highlight a fundamental flaw with political liberalism itself, in which case what we are required to do is to jettison the theory and seek out alternatives? I argue that the toleration problem in the law of peoples is not a problem of application but is an 37 accentuation of a problem inherent in political liberalism itself. The idea of toleration is, of course, shared by all liberals. It is a central liberal belief that tlie state ought not to discriminate between individuals' genuinely private conceptions of the good life. But individuals are not the only subject of liberal toleration. Most liberals today (in no small measure due to the communitarians as we saw) also believe that tlie state ought to tolerate different group-based ways of life, for example, of religious or cultural communities, not because these ways matter in themselves but because of their moral signiticance to members of these groups." But what is the limit of this group-based toleration? For many liberals, groups whose practices and traditions are antithetical to the liberal aspirations oftheir own members are not to be tolerated. So, a group which does not permit its members the right and freedom to reevaluate and revise the internal practices and traditions of the group falls outside the bounds of liberal toleration?' But, as we have seen, political liberals want to extend group-toleration to groups wliicli are internally nonliberal. This is important, Rawls claims, because liberals should not expect all individuals to have liberal aspirations and therefore we ought not to challenge reasonable ways of life wliich are not liberal in character. But this extension of toleration to nonliberal views is problematic once we recognise that within any association there are always dissenters or internal minorities. It is one tliingmt to-t individuals to be liberals (in tlieir private lives), it is quite a n o t h e r d to whatever liberal aspirations they may have against oppressive group traditions. Surely as a liberal, Rawls cannot remain indifferent if the aspirations of (some) members of nonliberal reasonable groups to reevaluate and revise their conceptions of the good and their corresponding group practices and institutions are thwarted by their own group traditions. But because of his reluctance to criticise the internal practices of reasonable groups, he seems to have reneged on his liberal commitment to these individual dissenters. There is, therefore, a serious tension within political liberalism between its toleration of nonliberal reasonable groups and its commitment to the individual liberty of (dissenting) members of these groups. 35 Now, one could argue that in the case of domestic political liberalism, this tension is fortuitously alleviated by two important features of a liberal-democratic society, features which I shall show to be lacking in the international context. The state enforced right of exit and the "liberalising effects" of liberal public policies on nonliberal ways of life, it could be argued, allow the political liberal to have it both ways -- to tolerate nonliberal groups without forgoing her commitment to individual liberty. Let me quickly explain how these two mitigating features might operate in domestic society. The first of these features is straightforward: private associations must permit their members the right to leave and join other associations should they so desire. To deny members this basic right is unreasonable in the Rawlsian sense; denying members the right to leave and join different associations would be contrary to the political idea of citizens as free and equal. As Rawls says, "In the case of ecclesiastical power, since apostasy and heresy are not legal offenses, those who are no longer able to recognize a church's authority may cease being members without running afoul of state p~wer."'~ So, while the state need not insist that reasonable private doctrines organise themselves internally according to liberal ideals, it must secure for members the right to leave their associations should they so desire. This is one way the political liberal hopes to escape the tension between its dual commitments to group- toleration and individual liberty. The second feature is a little more complicated and invokcs the idea of liberal neutrality. Political liberalism. or liberalism for that matter, does not pretend to be neutral in effect as Rawls points out. What liberalism is neutral about is the way policies areiustified; they are not to bejustified on grounds that some (reasonable) ways of life are intrinsically superior to others and hence more worthy of state support, or that some are intrinsically inferior and hence ought to be done away with. But this does not mean that neutrally justified policies cannot have repercussions on the private arrangements of reasonable groups. Neutrality of conseauence or effect is impossible to attain as Rawls himself notes." To use one familiar example, the liberal emphasis on civic education, which (for the political liberal) is 39 justified solely on neutral political grounds (namely, the cultivation of traits and character necessary for equal and free citizenship), can have "liberalising" consequences beyond the political sphere. As Rawls writes, "it may be objected that requiring children to understand the political conception in these ways is in effect, though not in intention, to educate them to a comprehensive liberal conception .... It must be granted that this may indeed happen in the case of some ... [but the] unavoidable consequences of reasonable requirements for children's education may have to be accepted, often with regret.'" This indirect "libenlisation" of nonliberal private practices does not entail a rejection of their affiliated comprehensive views. For the political liberal, this liberalising effect is an unintended side-effect of a neutrally justified public policy. It is just a "regrettable" fact that public policies impartial about the internal arrangements of reasonable groups can have nonetheless non-neutral (liberalising) effects on these arrangements. However, the fact that neutrally justified policies are not neutral in consequences allows the political liberal state to indirectly reform the internal arrangements of reasonable nonliberal groups, thereby protecting and promoting individual liberty (the liberal aspiration), without esnlicitlv rejecting these group arrangements as inadmissible (the political liberal aspiration). Thus, we can see how Rawls, at the domestic level, could hope to maintain his toleration for nonliberal reasonable groups without forfeiting his liberal commitment to libcral dissenters within these groups. The trickle-down effects of liberal public policies will eventually will the day for them; but in the meantime, should these dissenters find their internal oppression unbearable, they have the state protected right to leave their associations. However, some commentators have asked whether the right of exit and the liberalising tendencies of liberal public policies can resolve this tension in political liberalism entirely. They point out that a forlnal right ofexit is of little solace for most people, and that the liberalising effects of liberal public policies are limited in their reacI1.4~ Indeed, it seems that Rawls must admit that neutrally justified public policies cannot have liberalising effects in all areas of society. For ifthis were cot the case, why 40 would he expect political liberalism to be better able than comprehensive liberalism to secure the basis for legitimate stability? That is, ifthe conseauences of these hvo kinds of liberalism on the internal practices of nonliberal reasonable groups are ultimately the same, why would either of these liberal theories be any more acceptable than the other to individuals holding diverse views? T l i e d v difference behveen political and comprehensive liberalism in this case would be in the way eacliiustifies liberal public policies: Comprehensive liberals would say that the objective of, say, liberal education is "to foster the values of autonomy and individuality as ideals to govern much if not all of life," whereas the political liberal, to repeat, justifies this policy solely on political (i.e., neutral) grounds!' But adherents of nonliberal comprehensive views worry about the actual effects of liberal policies on their ways of life and not just about how these policies are- to them. So, in order for political liberalism to be a plausible alternative to comprehensive liberalism in the first place, Rawls must concede that the liberalising tendencies of neutrally justified policies are limited in reach."' But ifthis is so, then political liberalism does not avoid entirely the tension between toleration and individual liberty even in the domestic contest. But I do not wish to pursue this matter further; my main objective now is to show tllat as far as the international setting goes, these hvo alleviating features are conspicuously absent. First, is there a meaningful and substantial right of exit in the international context? The social unit that this right is demanded against in this case would be one's country. Is there such a right in international society? It is true that Rawls insists tllat well-ordered societies must recognise the right of emigration as a basic human right (p. GS). But what is the point oftliis demand if it is not reinforced by the demand that states also be obliged to accept immigrant^?^ Most liberals, and this includes Rawls, are reluctant to insist on the right to immigrate to even though they may support the right to emigrate from." Indeed, there is no mention in "The Law of Peoples" of any duty on the part of a people to accept immigrants. A right to emigrate from a country without a corresponding right to immigrate to a country is a facile right. In the domestic setting, when one leaves one's private association one is able to join 41 another, even if it is the default community, as when one leaves the church and joins the secular community. In international society, on the other hand, one cannot leave one's country unless also adopted by another country. Moreover, apart from the issue of whether tlie right to emigrate is meaningful without the corresponding right to immigrate, tliere is also the question of individual capacity: Is it reasonable to -an individual to leave her country of birth if she finds the political institutions of her country unbearably oppressive? Or, to put it differently, is giving one the right to leave one's country giving one a real clioice? Oddly enough, on this matter, Rawls himself notes that "normally leaving one's country is a grave step: it involves leaving the society and culture in which we have been raised, the society and culture whose language we use in speech and thought to express and understand ourselves, our aims, our goals, our value^."^' Whetlier it is true that it is harder to leave one's country than one's religion as Rawls appears to be implying is not the issue here. What is relevant is that given Rawls's acknowledgement tliat leaving one's country is more of a wrenching experience than renouncing one's comprel~ensive doctrine, lie must admit tliat the right of exit is especially weak and empty in the international context, that tlie right of individuals to leave their country if they find their continuing men~bership in it too unbearable is very small comfort (evenifthis right were supplemented by the right to enter another country). On Rawls's own terms, the right of exit does not mitigate the tension between tolerating nonliberal groups and protecting individual liberty in the global case?' Is tliere any global liberalising effect on nonliberal regimes? Does Rawls's law of peoples include this provision? It is not clear if it does, at least in any substantive sense. What kinds of global policies would have liberalising effects on the domestic institutions of WHSs? Obviously, the one policy Rawls refers to in his domestic theory, that of a liberal public education, is not available in the international scene -- tliere is no global educational policy, no global public schools all the children of the world are expected to at:ond. Likewise, some liberals argue tliat public policies aimed at improving gender equality 42 can have positive effects in the homes and private associations (e.g., equal career opportunity in the public sphere can result in greater equality in the private sphere, some liberals argue):' yet there is clearly no global equivalent here. Moreover, because Rawls insists that the internal political arrangements of WHSs are off limits to political criticism and economic sanctions (pp. 80-XI), liberal states cannot insist on any linkage between liberalisation and trade or developmental aid, which is one important liberalising tool available to liberal states against nonliberal states. The one possible liberalising tendency 1 can think of in the global setting would be the effects of cultural exchanges. Films, bqoks, inlellectual exchanges, and art play an important role in educating and raising public awareness and in informing individuals of the world of different possibilities and options. But Rawls would have no qualms about permitting the governments of WHSs the right to censor ideas contradictory to their "common" good conceptions ofjustice. As we may recall, freedom of expression or speech is not a necessary condition for a WHS; to demand this right as universal would make the law of peoples too "sectarian," according to Rawls." But more relevantly, the issue here is not whether individuals themselves can come to appreciate and acquire liberal values, but whether we sliould support those who hold liberal aspirations. More so than with public policies in the domestic case, it is unlikely that global practices and policies can eventually turn the tide against oppressive traditions in favour of these dissenters within a reasonable time span, especially if these are state sanctioned oppressions. Thus, Rawls's reluctance to take a stance against WHSs in the clear absence of any significant global liberalising effect and a m right of exit belies his liberal commitment to individual liberty. Conclusion Political liberalism faces a tension between tolerating reasonable nonliberal comprehensive views and supporting individual liberty. This tension is most vividly exposed and left entirely unremedied in the 4 3 globalised version of the theory because of the special conditions of tlie international realm. lo estending his domestically conceived theory to cover international relations, Rawls. inadvertently and very ironically, has rendered more visible this fundamental problem with political liberalism. The problem of toleration in "The Law of Peoples" is not so much a problem of application as an accentuation of an inherent theoretical problem. Political liberalism's empliasis on toleration conflicts with its other liberal commitments, which in tlie domestic contest is fortuitously (and only to a degree 1 stress again) alleviated. But a sound political theory cannot wait to be saved from internal tensions by fortuitous and contingent social circumstances -- there is no guarantee that these circunistances will always be obtained, as they have not at tlie global level." Comprehe~isive liberalism, which Rawls rejects, does not face tliis tension between tolerating nonliberal regimes and protecting individual liberty given its fundamental coniuitment to individual autonomy. It is thus able to secure a global theory better able to protect tlie rights and freedoms of persons universally. I shall develop tliis claim in the next three chapters. E N D N O T E S 1. John Rawls, "The Law of Peoples" in On I-lwnan Riahts, ed. Steplien Shute and Susan Hurley (Basic Books: 1993), pp. 41-82.220-230. 2. As some commentators have nointed out. these assumntions are hielilv nrobleniatic. See Thomas - . . Pogge, "An Egalitarian Law of llie Peoples." Pliilocooliv and Puhlic Al%~irs 2313 (1994): 195-221, pp.-197- 199: and Stanley Hoffniann. "Dreams of a Just World," Ncw York Rc\ icw of !3oskr (2 Nov. 1995): 32-57. 3. John Rawls, Political Liberalism (New York: Columbia Univ. Press, 1993). 4. These "hazards" arise because o f a) the fact of conflicting evidence, b) disagreements over tlie weight given to pieces of evidence, c) the indeterminacy of our concepts and principles, d) different individual "total experience" which in turn affects the interpretations and considerations we give similar pieces o f evidence, e) the difficulty with assessing normative claims, and f ) the difficulty with setting priority for all possible cases of conflicts. Rawls calls these hazards the "burdens of reason." Rawls, "The Domain ofthe Political and Overlapping Consensus," in The Idea of Democncv, ed. David Copp, Jean Hampton and John E. Roemer (Cambridge: Cambridge University Press, 1993): 245-269, p. 248. Hereafter "Overlapping Consensus." 5. Rawls, Political Liberalism, p. 78. 6 . Ibid., p. 195. 7. Rawls, Political Liberalism, pp. 144, 155. As Rawls puts it, for its justification, political liberalism "seeks common ground -- or if one prefers, neutral ground -- given the fact of pluralisni." Ibid.. p. 192. 8. Ibid., pp. xvi-xvii; "Overlapping Consensus," p. 253. 9. Rawls, "Overlapping Consensus," p. 259. 10. Rawls puts this more explicitly in the preface to the Second Edition (1996) of Mili~! Liberalism: "The point is that not all reasonable comprehensive doctrines are liberal comprehensive doctrines; so the question is whether they can still be compatible for the right reasons with a liberal political conception." p. xxxix. I 1 . Witness, for example, the prohibition against women or homosexuals from holding offices in certain religious communities; or witness also, more pervasively, the male-dominant family within which female members are not given an equal voice. Yet these associations meet the criteria for "reasonableness" in Rawls's theory. 12. Rawls, Political Liberalism, pp. xix-xx. 13. Some liberals question Rawls's claim that an internally nonliberal doctrine can accept liberalism as a political ideal. For example. Will Kymlicka thinks it is not obvious "why anyone \vould accept the ideal of autonomy in political contexts unless they also accept it more generally [in their nonpolitical lives as well]." Multicoltoral Citizenshiv: A Liberal Theow of Minoritv Richts (Oxford: Oxford University Press, 1995). p. 160. The coherence o f t h e political liberal project rests on the tenability of this "moral dualisn~" of Rawls. I leave this discussion aside and shall examine instead, albeit concentrating on the international case, whether liberals should even entertain the idea of tolerating nonliberal views. 14. See Ronald Dworkin, "Foundations of Liberal Equality," Tanner Lectures XI (Salt Lake City: Univ. of Utah Press, 1990); Will Kymlicka, Multicultural Citizenshiv: A Liberal Theorv of Minoritv Riehts (Oxford: Oxford Univ. Press, 1995). Chap. 8; and Joseph Raz "Multicultoralism: A Liberal Perspective," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1994). Toleration in this understanding is akin to respect. What is tolerated is respected as morally permissible and not just grudgingly accommodated. Some liberals want to distinguish toleration from respect. The motivating reason is to show that respect entails more than just acceptance (i.e., tolerance) but active support as well. See, e.g., Amy Guttnann. "lritroduction," in Mnlticulturalism (Princeton: Princeton Univ. Press, 1994): 3-24, pp. 21-24. This could be an acceptable distinction except that I think it obscures the important distinction bchveen respect and concern in Dworkin's celebrated equality clause. The distinction Gutmann wants then should be better put as toleration or respect on the one side and recognition or concern on tlie other. 15. See, e.g., Chandra Kukathas, "Cultural Toleration," in Nomos XXXIX: Ethnicitv and Grow m, ed. Ian Shapiro and Will Kymlicka (New York, New York Univ. Press, 1997): 69-104; and Charles Larmore, Patterns of Moral Coniolexity (Cambridge: Cambridge Univ. Press, 1987). 16. Rawls, "The Law of Peoples," p. 43. Because of the frequent references to this work in this chapter, subsequent citations from tliis work will be noted in parenthesis in tlie text of tlit chapter itself. 17. Tlie original position, as we may recall, is "a device of representation" where representatives of rational but reasonable individuals deliberate on the appropriate principles of justice for tlie basic structure oftheir society. See, e.g.. Rawls, Political Liberalism, pp. 22-28. To cnsure that this hypotlietical deliberation is fair and equal, parties deliberate behind a "veil of ignorance." That is, they are asked to imagine that they do not know tlieir actual status and stations in society. In tliis way, no one party could insist on terms biased in her favour according to her own social standing.. 18. Pogge, p. 206n. 19. Rawls tells us that this list is not meant to be coiiclusive and more principles could be added over time. 20. Tlie kinds of basic riglits Rawls has in mind are rather minimal. They cover the riglits to subsistence and security (the right to life), to liberty (e.g., freedom from slavery or forced occupation) and personal property, to formal equality before tlie law (in tlie sense that similar cases be treated similarly), to a limited liberty of conscience, and to emigrate (pp. 62,68). 21. Some would argue, to the contrary, that a liberal state can indeed be organized around a common good conception of justice. See, for esample, Cliarles Taylor, "The Politics of Recognition," in Multiculturalism, ed. Amy Gutmann (Princeton: Princeton Univ. Press, 1992): 25-73, pp. 56-61. Also, Xiaorong Li claims that "[if] Rawls's 'hierarchical society' could respect all these riglits, such a society would hardly differ from a contemporary liberal democratic society." Li, "A Critique of Rawls's 'Freestanding' Justice," Journal of Anolied Philosonliy 12 (1995): 263-271.269.1 think the above claims are disputable but I sliall not challenge them here. For further discussion, see Will Kymlicka, Liberalism. Commlmihi and Cultllre (Osford: Oxford University Press, l989), esp. chap. 5. 22. So a caste society which accords different rights and duties to members of different castes can be well-ordered iftliis unequal distribution of riglits and duties is in accordance with tlie traditions and rules of tlie caste system and not arbitrarily enforced as when similar castes are treated differently. 23. Tliis observation lias also been made by Fernando Teson, "The Rawlsian Theory of International Law," Ethics and l~iternational Affairs 9 (1995): 79-99, p. 89. Such criticisms, Rawls fears, come with sanctions of some sort. Tliis distinction between passing judgements against WHSs as-e citizens and associations within liberal societies on the one hand, and passing judgements as official delesates of liberal societies in international forums on the other, parallels Rawls's stance in his doniestic theory that while individuals and associations may question nonliberal comprehensive views in their private capacities, tlie liberal state (and individuals in tlieir public capacities) may not; it is unreasonable to use tlie power of the state which is shared equally by all against some reasonable views. Compare "Tlie Law of Peoples," p. 81 and Political Liberalism, pp. 215-16. 24. Rawls, "Philosopl~ical Problems of the Law of Peoples," Lecture delivered in Princeton University, Spring 1995, MS. 22, my emphasis. (Text with me on file). 25. Pogge, pp. 214-15. 26. Ronald Dworkin, A Matter o f Princiole (Haward Univ. Press, 1985), p. 361. 27. Indeed die failure to distinguish ethical neutrality from political neutrality has caused much confusion in the debates surrounding liberal neutrality. Many anti-neutralists commit the fallacy of equivocating between these hvo kinds of neutrality when presenting their case. They begin by showing (rightly) how liberalism cannot be politically neutral, but they conclude (falsely) that therefore the idea of ethical neutrality is untenable. For example, Jean Hampton convincingly argues that liberalism (she was in particular challenging Rawls's political liberalism here) cannot be politically neutral, but mistakenly makes the general conclusion "that the growing literature purporting to develop a 'neutral' form o f libcralisnl is deeply misguided". In Hampton, "The Moral Commitments of Liberalism" in The Idea of Democracy eds. David Copp, Jean Hampton and John E. Roemer (Cambridge Univ. Press, 1995), 292-3 13, p. 3 12. 28. As he puts it, "Nevertheless, in affirming a political conception ofjustice we may eventually have to assert at least certain aspects of our own comprehensive religious or philosopl~ical doctrine (by no means necessarily fully comprehensive). This will happen whenever someone insists, for example, that certain questions are so fundamental that to insure their being rightly settled justifies civil strife .... At this point we may have no alternative but to deny this, or to imply its denial and hence to maintain the kind oftliing we had hoped to avoid." Rawls, Political Liberalism, p. 152. See also pp. 153,250-51. 29. His other reason for using the two-stage procedure is that this is a methodological preference, with possibly no consequential difference (p. 50). 1 shall examine this other reason in due course. 30. Teson, p. 85. The falsification in question being the fact that other cultures do not value freedom, human rights, and democracy, as the West does. 3 1 . This point has already been made by Hoffmann who says that the motivation of the law of peoples is "implicit but clear enough: this'overlapping consensus' is really just a modus vivendi among quite different models of society." Hoffman, p. 54. Some critics have presented this charge against Rawls even in his domestic theory. But this charge is even more obvious against Rawls's global theory. 32. Nor, indeed, can international agencies (like the United Nations) enact enforceable global laws given the lack of any international law enforcement body. At present, international law is, as we commonly hear, "toothless". 33. This distinction was recently pointed out in Kymlicka, Multicultural Citizenship, pp. 164-166. Kymlicka's point in making this distinction is to show that judging the practices of certain minority groups to be illiberal does not entail that the liberal state is therefore "dmwn down the path of interference". Similarly, Joseph Raz points out that while oppressive cultural practices should be criticized, we should esercise "restraint and consideration in thinking of the means by which [these practices are] ... to be countered." Raz, "Multiculturalism: A Liberal Perspective," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1994), p. 170. 34. As a matter of fact, Rawls would dissociate hiniself from tlie above objection because it treats toleration of WHSs to be a matter of strategy or a modus vivendi. But recall tliat this is not Rawls's understanding of toleration. 35. Rawls takes this to be one of the reasons why nonliberal comprehensive views could be permissible within a liberal-democratic state: Private associations are permitted "to offer different terms to its members ... depending on the worth oftheir potential contribution to society as a whole." This is "because in their case the prospective or continuing members are already guaranteed the status of free and equal citizens, and the institutions of background justice in society assure tliat other alternatives are open to them." Rawls, Political Liberalism, p. 42. 36. As he writes, "I think there is no clear initial answer to this question [whether to have a hvo-stage or one-stage original position]. We should try various alternatives and weigh their pluses and minuses. Since in working out justice as fairness 1 begin with domestic society. I shall continue from there a s if what has been done so far is more or less sound" (p. SO). 37. Rawls, "Overlapping Consensus," p. 246. 38. Teson interprets tlie legitimacy condition in a similar way: "On [Rawls'] view, we look to tradition and Iiistory; they, and not the government or the majority, establisli the limits of freedom." Teson. p. 88. This "communitarian" understanding of WHSs mirrors Michael Walzer's account of the state as a "historic community" where citizens "express their inherited culture through political forms worked out among tlieniselves." Walzer, "The Moral Standing of States," Philoso~hv and Public Affairs 913 (1980): 209- 229, p. 21 1. 39. The discussion in the above three paragraphs has benefitted from different helpful comments by Frank Cunningliam and tlie reviewers and editors of-. 40. Hoffmann, p. 54. 41. This group-based toleration is justified on tlie grounds that an individual's wil-being is intimately tied to the "prosperity" of her community. As Kymlicka puts it, one's cultural membership provides "tlie context of choice" which gives meaning to one's conception of the good. Thus, liberals have good individualistic reasons for respecting (and even supporting when necessary) group-based diverse ways of life. Kymlicka, Liberalism. Comrnunitv and Culture, Chap. 8. See also Joseph Raz, "National-Self- Determination," in Ethics in tlie Public Domain, 110-30, pp. 113-17. 42. See Kymlicka, Multicult~~ral Citizenship, Chap. 8; and Raz, "Multiculturalisni." pp. 169-74. 43. Rawls, Political Liberalism, p. 221. 44. Ibid., pp. 192-94. 45. Ibid., pp. 199-200. 46. On the small consolation of the right of exit in domestic cases, see Leslie Green. "Internal Minorities and Their Rights," in Judith Baker, ed., G r o w Rialitq (Toronto: Univ. ofToronto Press, 1994): 101-1 17. He argues tliat "tlie mere existence of exit does not suffice to makc it a reasonable option. It is risky, wrenching, and disorienting to have to tear oneself from one's religion or culture'' (Green, p. I1 I). 011 the limits of the liberalizing effects of liberal public policies on private arrangements (ofthe family in panicular), see John Exdell, "Feminism, Fundamentalism, and Liberal Legitimacy," Canadian Journal of Philosonhv 24 (1994): 441-464, p. 461; and Susan Moller Okin, "Political Liberalism, Justice and Gender," Ethics 105 (1994): 23-43, p. 32. 47. Rawls, Political Liberalism, p. 199. 48. A similar point has been made by Exdell, pp. 453-55. 49. While it could be argued that liberal states have the duty to accept political refugees, it would seem that Rawls cannot classify political dissenters of WHSs as prospective political refugees; to do so would imply critical judgements of the political institutions of the WHSs in question. See Teson, p. 90. 50. Kymlicka, Multicultural Citizenshie, pp. 124-26. There are exceptions of course. most notably Joseph Carens, "Aliens and Citizens: The Case for Open Borders," Review of Politics 4913 (1987): 3 1 - 7 3 , 5 1 . Rawls, Political Liberalism, p. 222. 52. Concerning individual capacity, besides the psychological costs discussed above, there are also economic ones. Ironically, individuals who may have the strongest reason to leave their country are often also the ones most badly exploited and hence least able to muster the financial resources necessary for travel, documentation and other immigration related expenses. I owe this point to David Dyzenhaus. 53. Of course, other liberals object to this line of argument; see Exdell and Okin. The point here is that this is an argument the political liberal can at least attempt in the domestic setting. 54. Recall his "thin" list of universal rights 011 p. 62. 55.1 call these circumstances i) contingent because, as I pointed out, the significance of a formal right of exit is continvent on other conditions being in place, there being somewhere else to go to for one. and ii) fortuitous because (for the political liberal) the liberalizing effects of liberal policies on nonliberal reasonable associations are unintended and fortuitouq side-effects. CHAPTER THREE TOLERATION AND DIVERSITY: TWO LIBERAL VIEWS In the previous chapter, we saw how John Rawls's political liberalism faces what we may call the toleration problem, namely the tension between liberalism's commitment to individual liberty and political liberalism's toleration for nonliberal social groups. This tension, 1 argued, is especially damaging in the international version of Rawls's theory. 1 then suggested that comprehensive liberalism does not face this particular tension and can therefore secure a more coherent liberal global theory. But Rawls rejects comprehensive liberalism on the ground that liberalism so understood becomes another "sectarian doctrine." According to him, comprehensive liberalism espouses an ideal of autonomy which cannot be reasonably expected of individuals affirming the various nonliberal but reasonable comprehensive philosophical, religious or moral views one finds in a modem pluralistic society. As such this conception of liberalism itself violates liberalism's own principle of toleration by disallowing nonindividualistic conceptions of the good, and consequently cannot hope to secure the basis of legitimate stability within a democratic state, let alone provide the legitimate basis for a global theory. So, before 1 can present the comprehensive liberal alternative to Rawls's law of peoples, I must first defend comprehensive liberalism against Rawls's charges. Because most of Rawls's discussion with regard to political liberalism and comprehensive liberalism is situated within the doniestic context, my discussion shall also be confined mainly to this context. Also, to fix the debate and to keep it in line with the main theme ofthis dissertation, I shall, when talking about social groups. focus primarily (though not exclusively) on ethno-cultural groups rather than on some other types of non-political association. A precise account of 'culture' will be developed in later chapters but for our present purposes, 'culture' understood loosely a s a way of life characterised by common practices, traditions, beliefs and values, and usually a distinct language should suffice. Finally, while Rawls himself does not deal explicitly with 50 cultural groups in his domestic theory but more with comprehensive views specifically, his comments about comprehensive views are clearly applicable to such groups. Cultural ways of life are typically informed by certain encompassing philosophical, moral or even religious compreliensive views. That the principles relevant to comprehensive views apply also to cultural groups is of course confirmed by Rawls himself in "The Law of Peoples" where, as we saw, he treats some national cultures (i.e., peoples) as societies organised around certain comprehensive religious, moral or philosophical views. Comprehensive Liberalism Comprehensive liberalism is not a monolithic view of liberal political morality but is itself given to alternative interpretations. For example, comprehensive liberals do not all agree on whether to adopt the neutralist or perfectionist model o f liberalism.' They also disagree over the philosophical foundations of liberalism (e.g., Millians and Kantians have very different philosophical bases for liberalism). Consequently, they can also differ over whether to adopt, say, a utilitarian or a duty-based liberal theory.' Comprehensive libera!ism, rather, is the class of liberal political moralities Rawls contrasts political liberalism with, namely those which are not disengaged from liberalism's own comprehensive moral and philosopliical doctrines, and whose application is not therefore restricted to the political arena (or more precisely, d o not hold as narrow a conception of the political as does political liberalisnl). Thus, unlike political liberalism which "affirms political autonomy for all but leaves the weight of ethical autonomy to be decided by citizens severally in light of their comprehensive doctrines,'%omprehensive liberalism is concerned also with the ethical autonomy of persons. In other words, because it remains grounded on this comprehensive moral commitment to autonomy, comprehensive liberalism maintains that the value of autonomy holds in all areas of society and that the state should therefore protect and promote individual autonomy throughout. It should be clear from the above description of comprehensive liberalism why it does not, unlike 5 1 political liberalism, face the toleration problem. For the comprehensive liberal, a social unit (e.g., a minority cultural community) whose institutions and customs obstruct the freedom of its own members to examine and reevaluate their socially formed conceptions of the good fails to meet liberal standards. It will be critical not only of illiberal groups (i.e., groups hostile to political liberalism itself), a s is political liberalism, but unlike political liberalism also of nonliberal groups. In other words, comprehensive liberalism requires that communities not only bepolitically liberal but internally liberal as well. Will Kymlicka endorses this view of liberalism: "Liberals are committed to supporting the right o f individuals to decide for themselves which aspects of their cultural heritage are worth passing on. Liberalism is committed to (perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community.'' To illustrate, a cultuml community which respects other connnunities and the political rights of its members but discriminates against those who do not profess the traditional religious beliefs fails to meet liberal standards;' similarly, a religious community whose internal institutional structure prevents women from holding high office within the community and hence effectively bars them from its decision-making processes also fails to meet liberal standards. Since comprehensive liberalism does not shy away from liberalism's own comprehensive moral commitments, it retains the moral basis, and the conceptual resources, forjudging the internal and private arrangements of nonpolitical associations. Whereas political liberals caution that liberal ideals need not apply within associations like the family or the church,l comprehensive liberals are able, and required LS a matter of principle, to take a stance against autonomy-compromising arrangements within these associations; they will deem such matters appropriate political concerns. It is not at all surprising, therefore, that while most feminist liberals reject political liberalism as too feeble a liberal morality to support women's rights precisely because it cannot directly address the core of the gender problem, namely unjust familial armngements, they are more optimistic about comprehensive liberalism. They 52 believe that a logical application of comprehensive liberalism's ideal o f autonomy should commit the state to take a more direct and active stance vis-8-vis arrangements in the household? Toleration and Philosophical Foundations The reason for comprehensive liberalism's more stringent standard of toleration has to do essentially with its unflinching commitment to liberalism's own comprehensive doctrine. While political liberalism escliews its comprehensive philosophical and moral doctrines, and therefore deprives itself of the basis upon which to judge the internal practices of nonliberal groups, comprehensive liberalism remains openly and unapologetically grounded on its comprehensive moral commitments. It hence retains the moral basis forjudging and criticising the internal practices of nonliberal comprehensive views; it remains, a s a matter of principle, fully committed to promoting and supporting individual autonomy, not just in a narrowly defined political life (political autonomy), but in all of life (ethical autonomy). Thus comprehensive and political liberals hold different conceptions of liberal tole ratio^^. For comprehensive liberals, the principle o f toleration is derived from its more fundamental moral commitment to ethical autonomy and is not the fundamental liberal commitment itself. Ronald Dworkin prefers to speak of liberal equality instead of autonomy, but we may leave this difference aside and follow his general argument.' He points out that a libeml theory based on a commitment to treating individuals with equal respect and concern will arrive at the toleration principle on the ground that treating individuals a s equals is best ensured, as a general strategy, by tolerating their different conceptions of the good. But liberal tolcration, understood in this way, is only instrumental for realising this fundamental commitment to individual equality and not the fundamental commitment itself. On this view, toleration is insisted on "only to the degree that equality requires it."9 Thus cultures whose practices violate this more fundamental liberal value defeat the very moral reason for tolerating them. Political liberalism, on the other hand, grants toleration a fundamental rather than a derivative 53 status. As I mentioned, political liberals want the liberal state to refrain from making judgements beyond the political realm because they believe that there is simply no uncontentious or reasonable basis for making such judgements. Because of the fact of reasonable disagreement, any state imposition of particular comprehensive views, including liberal ones, would itself be illegitimate. This belief that there can be no (reasonably) universally shared comprehensive moral or philosophical views is what motivates the liberal project in the first place for the political liberal. In their view, the principle of toleration is the very raison d'etre for liberal politics.1° It is important not to misunderstand political liberalism here. As 1 said before, it is not the case that autonomy does not count at all under this reading of liberalism -- political liberals would not have any criteria forjudging some views to be "unreasonable" if this were sa. Rather, their position is that reasonable disagreement requires that the scope of autonomy bereduced and confined to the political sphere; accordingly, only as long as full political autonomy is secured does the toleration principle come into effect. But, for the political liberal, autonomy understood in this limited sense is the only viable limit for toleration; there is simply no available basis for imposing a stricter standard. To insist on a more extensive account of autonomy would itself interfere with the liberty of those who hold reasonable though nonliberal conceptions of the good; it would violate liberalism's own principle of toleration. However, as I have argued in the previous chapter, this understanding of toleration can unfortunately compromise liberalism's own commitment to individual liberty, namely, the liberty of those whose freedom to examine and revise their ideas o f the good is thwarted by the nonliberal character of their own communities. In response, political liberals may say that this tension between liberty and toleration is a price liberal theory has no option but to pay given the contentious nature of comprehensive philosophical and mom1 doctrines. Indeed, considering the fact that even liberals themselves cannot agree on these matters (e.g., Kantians and Millians will disagree on the philosophical bases of liberal morality), the toleration problem is but a necessary compromise for getting the libeml project off the ground. Thus, 54 we have no choice, they would argue, but to set aside these squabbles over comprehensive philosopl~ical and moral claims, and concentrate on presenting a liberal theory acceptable to all even if that theory exhibits certain flaws. In other words, while political liberals like Rawls accept that liberal political theory is founded on certain comprehensive moral and philosophical views (with, 1 think, the philosopl~ical presumably most fundamental in that this is what ultimately grounds the moral doctrine), these foundational claims are contested by reasonable individuals and so they take the more urgent task to be that ofpresenting a liberal theory which is independent of any foundational commitments by detaching liberalism from such commitments. Comprehensive liberalism remains openly grounded on its comprehensive moral commitments and hence is a morally more rigorous theory; but its disadvantage is that it comes loaded with contentious philosophical and moral claims about the foundation of liberalism, and hence risks becoming another sectarian doctrine. The question of philosophical foundation is indeed one of the more daunting issues facing political theory and hence political liberalism's strategy of avoidance. But does it successfully avoid this matter entirely? As stated, Rawls wants to present political liberalism as a "free-standing" political philosophy, a philosophy excised from any comprehensive philosophical support, and hence freed from the foundational question co~nprehensive liberals are entangled in: "We try, so far a s we can, neither to assert nor to deny any particular comprehensive religious, philosopliical, or moral view, or its associated theory of truth and the status o f value."" Yet this free-standing status of political liberalism is only c o n d i t i o d When cornered by his hypothetical archenemy, the religious fundamentalist who attacks the verv idea of political liberalism itself, Rawls concedes that he may h a w to do what he "had hoped to avoid," and appeal to the comprehensive views of liberalism (not too much but just enough, he cautions) to counter these attacks." This passage sums up Rawls's predicament neatly: Nevertheless, in affirming a political conception ofjustice we mav eventuallv have tn assert at least certain asnects of our own comprehensive relisious or ~hilosophicnl doctrine (by no means necessarily fully comprehensive). This will happen whenever someone insists, for example, that certain questions are so fundamental tliat to insure their being rightly settled justifies civil strife .... At this point we may have no alternative but to deny this, or to imply its denial and hence to maintain the kind of thing we had hoped to avoid!' Political liberalism is freestanding, therefore, only in the company of reasonable compreliensive views. But when confronted by unreasonable views (i.e., those hostile to political liberalism itselt), it has no choice but to abandon its freestanding facade and invoke its comprehensive philosophical doctrine, hitherto considered too controversial to bring into political discourse, to counter these unreasonabic- views." Bringing in liberalism's compreliensive view is, the political !iberal would admit, controversial and even destabilising, but given the extremity and seriousness of the circu~nstances ( i t . , tlie fact that liberalism itself is under threat), she could presumably say tliat it is a lesser evil to risk some controversy and even political stability than to allow the demise of liberalism. Moreover, as we noted in passing above, the contentiousness of socli a move is supposedly allayed by ensuring that we do not invoke a fully comprehensive view if tliis is not necessary. Rawls does not dwell much on these fundamental challenges, but in order to understand why political liberalism must resort to foundational claims in the fundamentalist example above and not simply appeal. say, to tliepolitical values endorsed in the overlapping consensus, we may recognise tliat challenges to any political theory can occur at two different levels. On one level, a cliallenge can be directed at the substantive principles enjoined by tlie tlieory. This substantive challenge, or 1st-order challenee, questions not the tlieory itself but the theory's normative entailments or commitments. Challenges of tliis sort are not fundamental philosopliical challenges and can be countered by reference to the internal coherence or logic of the tlieory, by showing why, if the basic premises of the tlieor)' are accepted, its conclusions (i.e., its normative implications) must be accepted. So, for example. against an opponent who rejects the freedom of expression, the political liberal's first task is to sliow why ifone accepts the idea of political autonomy and equal citizenship. tliis freedom must follow. 56 On the other hand, a challenge can come from a more fundamental level, this time directed at the very idea of that political theory itself. That is, one can challenge not just the substantive values aftirmed by political liberalism, but the very premises or justification of political liberalism itself. This fundamental challenge, or 2nd-order challenee, questions, for example, why the idea of political autonomy is an appropriate moral starting point; that is, it questions the very justification for the overlapping consensus. Against these kinds of challenges, it is of no effect to refer to the internal coherence or logic ofthe theory for here the bases of the theory are the very points of contention. Faced with challenges at this fundamental level the political liberal, as Rawls concedes, has no choice but to draw on the comprehensive philosophical claims of political liberalism to proclaim the 'truth' of this premise. The political liberal is forced to go bevond the political values affirmed in the overlapping consensus to show why the very premises which gave rise to this consensus are thenlselves warranted. In which case, she may have to invoke, say, a Kantian account of rationality and autonomy or a Millian idea of well-being and individuality, to defend her premises. Now, Rawls gives us the impression that most of the cliallenges faced by political liberalism are of the 1st-order type and hence can be countered without appealing to its comprehensive ideas. Under challenges of this sort, the normative goals of liberalism remain defensible without having to compromise the "freestanding" status of political liberalism. However, there are two observations to be made in response here. First, even if it is true that 2nd-order challenges against political liberalism are rare, the possibility of their occurrence shows that any attempt to detach liberalism from its comprehensive support is in principle futile. So long as we can imagine cases, as does Rawls, of 2nd-order challenges, political liberalism cannot in principle avoid the foundation issue. But more to the point, most 1st-order challenges, directed at the substantive values of a political theory (at, say, the values enjoined in the overlapping consensus) when examined closely or pushed are revealed to be 2nd-order challenges." It is usually the latter which provides the motivation for the Ist- 55 order challenge in the first place. For example, it is often not sufficient to tell a cultural community which, say, discourages its female members from participating in public elections tliat it is violating the full political autonomy of some persons. It would, more often than not, when so countered, demand to know why full political autonomy is morally worthwiiile in the first place. Most nonliberal views are views which ultimately challenge not merely the substantive values of political liberalism but the idea of political liberalism itself. In short, 2nd-order challenges are more common than Rawls had hoped. This lias led some professed political liberals, like Steve Macedo, to be candid about the compreliensive commitments of liberalism. "Liberals," Macedo says, "need not deny tliat it is sonietimes legitimate to acknowledge comprehensive inoral and religious views in politics as grounds for possible accommodations or exceptions ... it is neither necessary nor ~ o s s i h l e to banish completely comprehensive considerations from politics."" Thus, Rawls's ambition and hope to the contrary, political liberalism in the end cannot avoid appealing to compreliensive philosophical claims and so cannot avoid making contentious foundational claims of some sort. When it comes to the crunch, a s Rawls himself is fully aware, political liberalism must invoke some of its compreliensive philosophical views which it lias voluntarily set aside earlier. As David Dyzenhaus has argued, "we see Rawls being tempted into just tlie battle of truth-claims he wishes political liberalism to avoid. And it is difficult to know how it can be avoided since free and equal citizens are citizens, who, among other views, might have or develop views that challenge political liberalism."" In fact, if there is any difference behveen comprehensive and political liberalism in this regard, it is to tlie disadvantage of political liberalism. Whereas compreliensive liberals can, as a matter of principle, appeal to its comprehensive moral principles when countering challenges to liberalism itself, political liberals must resort to& legal and political manoeuvres, and reinvoke moral principles it !>as hitherto considered too controversial to be affirmed politically. The political liberal state under this extreme condition must declare a state of emergency and overrule, by appealing to liberalism's 58 compreliensive views, potential threats against political liberalism itself. But it is this discretionan, invocation of foundational claims wliich makes political liberalism especially vulnerable to tlie traditional charge that liberalism is contradi~tory!~ In other words, not only is it impossible to avoid making comprehensive philosophical claims or claims about foundation altogether in political philosophy, but in his attempt to circumvent this issue. Rawls renders his liberal theory spineless enough that it cannot defend or justiFy itself in a principled manner. Political liberals, therefore, risk living up to Robert Frost's unflattering caricature as individuals who cannot take their own sides in an argument (although more accurately, we should say tliat they cannot do so in a principled manner). We do well to recall Dworkin's argument that any political theory must "claim truth for itself," tliat "[ilk must itselfoccupy ... all tlie logical space that its content requires."19 A political philosophy cannot help but be dismissive of certain views and supportive of others, and to do this in a principled way, it cannot be neutral, or claim to be neutral, about its foundation." I do not pretend to have on hand a final resolution to the heavily contested question of the pliilosophical foundations of liberalism. But I will beg off any discussion on tliis difficult topic as my aim here is not to offer a full-fledged defence of liberalism, which must no doubt confront this cliallenge, but only to defend one conception of liberalism against another. My goal above was only to show that political liberalism cannot in tlie end avoid the foundation question, and thus this problem is not one u11ique to comprehensive liberalism. Political liberalism faces tlie toleration problem and tliis is a price its pays because of its "freestanding" aspiration. But if this aspiration is unattainable, this trade-off serves no purpose. Liberalism a n d State Intervention Rawls worries tliat "[a] society united on a reasonable form of utilitarianism, or on the reasonable 59 [comprehensive] liberalisms of Kant or Mill, would ... require the sanctions of state power to remain so.~m So, even though political liberalism too must ultimately rest on contested moral and philosophical claims, one could reply on Rawls's behalf tliat comprehensive liberalism is sectarian in the sense that it is a political philosophy sustainable in practice only by tlie oporessive use of state power. But this charge against comprel~ensive liberalism rests on a mistaken assumption of the kinds of political strateries it must resort to. Few comprehensive liberals today endorse the strong tliesis that the liberal state ought to vigorously enforce and impose all its moral judgements? Most contemporary comprehensive liberals endorse a weaker tliesis which allows for the distinction between makinr a judrement and actine on that iudeementl3 This d~stinction allows for tlie provision that wl~ile a liberal state may judge a particular private practice as unacceptable according to liberal principles, it need not forcibly impose this judgement, for whatever (e.g., moral and strategic) reasons. For example, a state may feel tliat to enforce its judgement (even if it believes it to be right) against a cultural group is not only contrary to tlie ac-r;!nd democratic procedures of tliat society (and perhaps therefore a great harm in itself) but also self-defeating without assent by sufficient members of tlie group. But not intervening does not imply not acting at all on ajudgement. Comprehensive liberals can deploy state (i.e., publicly shared) resources to question and even criticise some nonliberal group practices witliout actually criniinalizing or enacting legislation against tlieni.2' So, we can imagine the state taking sides against tlie sexist practices of a cultural community by funding awareness campaigns, providing forums for debate and discussion, teaching tlie value of domestic equality in public scl~ools, sponsoring special opportunities for the women in the community, and so on, witl~out actually forcibly intervening and ruling out these cultural practices as illegal from the outset. And it certainly would be too hasty to rule these non-oppressive means of sustaining liberal ideals as ineffectual. But because Rawls does not allow direct state involvement in contentious issues of this sort, for reasons we will come to in the next section, he will not endorse these policies. 60 Thus comprehensive liberalism need not necessarily impose its judgements always but aims, foremost, to draw the involved parties into dialogue and deliberation. The liberal-democratic state, of course, takes sides in the debate here, but t h e m for actual change has still to come from within, with the widespread endorsement of group members themselves. It is by exercising caution against state intervention, and encouraging and engendering reform from within that comprehensive liberalism can hope to liberalise internal arrangements without acting intrusively in the process. If we understand comprehensive liberalism in this weaker form, there is less wony that rejecting political liberalism in favour of comprel~ensive liberalism risks excessive state intervention. Its more restricted view o f toleration does not imply a more permissive view of state coercion and intervention. To be sure, urging caution against intervention does not mean that intervention is always ruled out. When oppressive group-based practices are serious enough, causing direct physical or permanent psychological harm -- a s in the case of forceful religious conversions or disallowing apostasy, female genital mutilation, witl~l~olding of medical treatment from seriously ill children on religious grounds or the prohibition of girls from attending schools and the like -- coercive state action is warranted. That is, the state can rule these practices as illegal or even criminal and punish transgressors. O f course, it is important that coercive measures are supplemented by non-coercive ones, like education, providing incentives for reform and so forth, which would hopefully in time render obsolete the need for coercive preventive measures. But in the meantime, liberals would (what other choice do they have?) allow state intervention in these very extreme situations. But these extreme cases do not pose a special problem for comprehensive liberalism because the kinds o f practices against which intervention is deemed necessary by the comprehensive liberal state would also be ruled as "unreasonable" and be challenged by political liberalisnl as well. And while the political liberal may aspire to provide a solely political justification a s to why intervention is warranted here, in the end, as we have seen, she too must appeal to her comprehensive moral doctrine when 6 1 justifying her denunciation of these practices. Thus, the pliilosophical basis for state intervention in extreme cases is no more controversial for comprehensive liberalism than for political liberalism." Most contemporary comprehensive liberals agree with political liberals that the state should not expect all citizens to be liberals in all aspects oftheir lives -- the crucial difference between them is that the former are also committed to supporting individual liberal aspirations against oppressive communal traditions and practices. There is, therefore, another (but related) important distinction between strong con~prehensive liberalism (e.g., the liberalism of Mill, as commonly interpreted anyway) and the weak comprehensive liberalism which 1 am defending. While the Millian liberal would not only be suonortive of individuals who want liberal ideas to apply to their entire life but also- everyone to actually live a questioning and experimenting life-style, few contemporary liberals actually hold such an expectation." They arc more interested in ensuring that individuals have the basic social conditions and freedoms to test out different life-styles should they wish, but they do not bold them in lower esteem o r regard them contemptuously as people with "no need of any other faculty than the ape-like one of i m i t a t i ~ n " ~ should they choose not to experiment but maintain, say, their life based on faith or tradition. As Kymlicka writes, "A liberal society does not comnel such questioning and revision [of life-styles], but it does make it a genuine p ~ s s i b i l i t y . " ~ ~ Indeed, comprehensive liberals could argue that one who maintains her traditional (e.g., religious) life-style instead of experimenting with different ways (after the basic conditions for choice-making are in place) need not necessarily be living an unquestioning life, but could have actually reexamined her options and chosen to remain where she is2' It should be evident now that any potential worry that conlprehensive liberalism is more paternalistic than political liberalism would be largely unfounded. Comprehensive liberalism does not urge the state to unilaterally liberalise nonliberal cultural practices on the beliefthat this would be in the best interest o f the members of a given community, their ow11 preferences notwithstanding. Rather it demands that the state do so only out of support for those members w l ~ o are themselves critical of their 62 communal practices but whose own efforts are thwarted. That is to say, liberalising cultures is in the perceived interests of (dissenting) individuals wlio want to reform practices they find oppressive. T o borrow Frank Cunningham's words, "what is a t issue [here] is how best, in situations where control o f a common environment may be shared, to sati :f:i people's aspirations" and not wllat these aspirations should be.'' Admittedly, there are some liberal policies which are not as easily defended against the charge of paternalism. Liberal civic education is one prime example of a liberal policy \\hich aims not so much at supporting the liberal aspirations o f some against oppressive traditions as at inculcating in individuals liberal aspirations and ideals. Because liberalism prides itself on being a thoroughly anti-paternalistic political morality, seemingly paternalistic liberal policies, like secular public education, present a very important and knotty challenge for liberals. But for my purpose, wliich is an evaluation of comprehensive liberalism against political liberalism, l need only show that political liberalism faces this troubling question also and hence fares no better in this regard." The sole difference between the two liberal views here is in how each justifies liberal education and other autonomy inculcating (but seemingly paternalistic) policies. Recall that while political liberalism would justify mandatory liberal education on neutral political grounds and then express "regret" tliat these policies have 'liberalisiog' implications for some nonlibeml comnlunities beyond the political sphere, comprehensive liberals will say that the liberalisation of nonliberal communal practices is one of the principal aims of this policy, an aim consistent with its comprehensive moral commitments, and not a regrettable side-effect? Unfortunately. not only is the political liberal's mode ofjustification disingenuous and dishonest (it, after all, rests on the dubious doctrine of double-effect), but also in cases where these effects are actually felt, the different methods ofjustification make no real difference to the persons actually affected. In their eyes, each strategy is as paternalistic as the other, if either is. If liberal education is indeed paternalistic (recall I leave this question open), the only difference between comprehensive and political liberalism is tliat the latter unsuccessfully tries to deny it whereas tlie former admits to it. State Power and Statc Coercion We see then tliat compreliensive liberalism is not necessarily oppressive even though it requires tliat the liberal state take a comprehensive moral stance. Now, to be exact, political liberalism permits reasonable nonpolitical associations to non-violently promulgate and publicise their beliefs and values, and to question those of other^.^' What Rawls is specifically against is the use of state power or resources to support (or criticise) any reasonable comprehensive views even if these are liberal ones (or nonlibeml ones), and not the use of personal or collective resources per se in this regard, as niany commentators mistakenly think. As he puts it unequivocally, "It is unreasonable for us to usepolitical Dower sliould we possess it, or sliare it with others, to repress comprehensive views that are not unreasonable."" It is in this very specific sense that moral and other controversial matters are to be kept out of tlie political sphere for Rawls, a point far too often overlooked by Rawls's critics. Amy Gutmann and Dennis Tl~ompson, for instance, fault Rawls for denying that "democratic governments sliould encourage [public] moral discussion about controversial political issues," that he is wrong in thinking that "just because we cannot in advance philosophically establish principles specific enough to constrain public policy, ... we could not discover such public policies through discussion with fellow citizens in a process informed by the facts of political life, and inspired by the ideals of moral deliberation."" This is n serious misconception of political liberalism. Nowliere does Rawls say tliat moral discussions are not permitted in public nor that we cannot come to "discover" public policies through moral deliberation. On tlie contrary, Rawls must maintain that individuals are free to use their own resources to discuss, debate and promote their beliefs in the public spliere -- how could a liberal say otherwise? As we saw, what he objects to is the use of state Dower (a public power sliared by all equally) to support the moral views of some over otliers (i.e., these views are not to be "politicised" or be translated into policy to the advantage 61 ofsome). He wants controversial comprehensive views kept out ofthe political arena, not the social as such, a crucial difference many of liis critics miss. In fact, lie prefers to speak of the public/social distinction as opposed to the more misleading publiclprivate one.'6 Given tliis fairer understanding of Rawls, one may be tempted to think that political liberalism is really no different from the weak comprehensive liberalism I am proposing. tliat tliis noninterventionist compreliensive libenlisni is identical in the end to Rawls's political liberalism. But the difference behveen tlie two is, upon some reflection, actually quite pervasive. Comprehensive liberals permit tlie state to take sides (albeit urging caution against intervention); political liberals, wliile permitting private associations to advertise their views publicly or socially, forbid tlie state from taking sides at all. This is a significant divergence because the state has access to social and cultural resources (e.g., control over public education, media. official language policies, the law and immigration, just to mention some examples) wliicli private associations do not. Moreover, the state also has an ubiquitous influetice on a society and its citizens whicli private associations lack. Political institutions are just more encompassing and pervasive than nonpolitical ones, as Rawls himself as noted in liis brief discussion of the non-neutral effects oftlie liberal state. Why is Rawls so reluctant to allow tlie state to support and promote a comprehensive liberal morality? The reason. it appears to me, is that Rawls conflatespolitical iudaemcnt or-r with& coercion?' This conflation is evident tliroughout his recent works. Just to cite two examples. In an article, Rawls writes tliat "the political power exercised within the political relationship is alwavs coercive power backed by tlie state's machinery for enforcing its laws." Elsewhere lie writes: "in a democracy political power, wliicli is alw.lvs coercive power, is tlie power oftlie public, tliat is of free and equal citizens as a collective body."" Evidently, Rawls worries tliat each time the state takes sides in moral disputes, those in disagreemelit with the state's position are necessarily coerced into compliaoce. But since tliis coercive power of the state is equally shared by all citizens, it is illegitimate for tlie state to use it to support some 65 contentious views, even if these are liberal ones, against others. In a sense, Rawls is correct -- all political and even moral judgements are coercive if by this we mean that these judgements do have some influence on the judged's behaviour. Being thought of poorly or given a low public opinion rating is often some motivation for mending one's ways. But understanding 'coercion' so expansively deprives it of any meaningful content. If we more realistically restrict state coercion to the state legislating against or criminalizing (and hence being able to use "1egitimate"force against) certain activities, then Rawls clearly overstates the connection between state power and state coercion. As I pointed out above, there are numerous non-coercive ways for a state to effectively take a moral stance and argue against nonliberal ways without actually resorting to the use of force. There is no necessary entailment that the state has to use force each time it takes sides in a moral debate. As L.T. Hobhouse reminded us, "Let us observe that, as Mill pointed out long ago, there are many forms of collective action which do not involve c~ercion."'~ The project of political liberalism seems to me to be motivated in part by this mistake. For were Rawls to recognise that state power is not always coercive, he would not see the choice for liberals to be one between a political liberalism which cannot take sides (and hence too feeble as I have been arguing) and a strong comprehensive liberalism which is too interventionist (and hence too "sectarian" as Rawls fears). Instead, he would see that there is a middle-of-the road option -- a weak comyrehensive liberalism which can take sides in moral matters but is not necessarily oppressive?' Expecting the liberal state to be actively involved in moral issues may make the state loom large, perhaps too large for liberals whose traditional objective was to limit the powers of states over their own citizens. But, again, this concern would be warranted only if state involvement must always bc accompanied by the use of force. Othenvise, all compreliensive liberals are recommending is not in excess of what goes on or is being called for in some contemporary liberal states --some degree of state control over education; state support for oppressed individuals (by providing social services, counselling 66 and so on); state funding for certain artistic and cultural activities over others; and state support for public media and even regulating private ones (as for instance requiring that children's television networks contain a certain number of educational programmes). Classical liberals once thought that state provision of a social minimum (e.g., via progressive taxation) was contrary to liberal ideals, a point almost no liberals accept today?' And some liberals are today also arguing tliat it is entirely compatible with, and indeed required by, liberal ideals that the liberal state also actively support certain minority cultural groups. (We will address this point more fully in the final section.) So, to conclude the discussion here, liberals do not strive for a minimalist state (as do libertarians); they will readily accept a fuller role for the state in accordance with the principles of liberalism. But this is far from endorsirlg dictatorial governance against which liberals of the past battled. Constitutional safe-guards are well in place in liberal democracies to prevent this from happening. Diversity and the State I liave argued tliat Rawls's criticisms of comprehensive liberalism are either exaggerated or apply also to political liberalism. In this final section, I shall argue that in spite of its stricter account of toleration. comprehensive liberalism is better able than political liberalism to protect and support the flourishing of different cultural ways of life. The issue of cultural diversity is, of course, an important one for contemporary liberal theory. Diversity is not simply a fact of a modern liberal-democracy to be tolerated but a beneficial product of liberal toleration, a condition to be celebrated. This is because liberals believe tliat particular ways of life provide individuals with the "context of choice" within wliicli to form and pursue their ideas of the good life? Other liberals add that not only does diversity matter to the respective individual adherents ofways of life, but nonmembers too benefit in the sense that they have a larger range of options and possibilities to choose from and experiment with than they would otlierwise liave. Diversity thereby enriches society 67 as a whole:" Now although Rawls concedes that there is "no social world without loss,"" he thinks political liberalism allows for a wide range of different, including nonliberal, comprehensive views to endure and even to flourish. In his words, "[a] just liberal society may have far more space [for diverse ways] than other social worlds."" On first glance, it is tempting to think that political liberalism is indeed more permissive than is comprehensive liberalism of diversity. The fact that it "does not attack or criticise any reasonable view," including nonliberal ones, would allow, it seems, nonliberal cultural communities to maintain and sustain their practices free from state interference and discrimination. By contrast, comprehensive liberalism would seem to ensLre that only "individualistic ones [i.e., conceptions of the good] alone can endure in a liberal society, or [that] they so predominate that associations affirming values of religion or community cannot flouris11."~~ But this confidence in political liberalism's conduciveness to diversity is well founded only if the sole threat to diversity comes from the state. However, ways of life do not just need protection from the state; they also need to be protected from each other. In a pluralistic society, minority cultures often face the risk of passing on and/or being involuntarily assimilated into dominant or majority cultures even if they enjoy the basic non-discrimination rights. Thus, given the social advantages majority groups have over minority ones, it appears that some sort of state involvement, rather than state non-interference, is necessary to protect diversity, to protect minority ways from dominant mainstream cultures. To be exact, Rawls himself is well aware ofthis fact when he notes that "[some ways of life] may be admissible but fail to gain adherents under the political and social conditions of a just constitutional regime."" But his response is that "if a comprehensive conception of the good is unable to endure in a society securing the familiar equal basic liberties and mutual toleration, there is no way to preserve it consistent with democratic values as expressed by the idea of society as a fair system of cooperation among citizens viewed as free and equal.'"' Evidently, Rawls believes that once the familiar basic liberal 68 rights, including the freedoms of expression and association, the right to join or form new associations and the right to equal toleration, are properly protected and enforced, the right of individuals to a flourishing culture is equally secured. That is, once the familiar basic rights are equally protected for all persons, all groups will compete in a fair marketplace of ideas, or the cultural marketnlace as some commentators termed it, and it is then up to market forces to determine w;iich ways endure and which lose out?' Should the state interfere with the workings of the cultural marketplace by providing threatened groups special support, it would be treating some citizens with greater concern, thereby violating liberal-democratic principles of equality and fairness. This idea of benian nedect, the view that the state should not grant special consideration to some ways of life over others once basic individuals rights are in place, was until recently a widely shared liberal ideal. However, many critics of liberalism have since pointed out that this idea is seriously flawed?OThey argue, rightly, that it is a serious mistake to assume that the equal right to a secure cultural community is sufficiently guaranteed once basic individual liberties like the freedoms of expression and association are secured. Quebeckers, for example, argue that equal protection of individual rights is not enough to ensure the survival of a Quebecois culture. What they demand is not equal protection of basic individual rights (this they already enjoy) but special rights in virtue of their distinct culture. These group-specific (or group-differentiated) rights which may apply only to them and no others -- like language rights, control over immigration into the province, proportionately more government funding for public services like Radio Broadcasts in French and so on --are said to be necessary to supplement the basic individual rights Quebeckers already enjoy if their right to a secure and distinct culture is to be protected." The reason why equal basic individual rights are insufficient to assure everyone the equal right to a secure culture, these critics point out, is that cultural groups never compete as equals in the "cultural marketplace" of a pluralistic society. Certain groups are inevitably disadvantaged not because the basic riglits of their members to associate or express their ideas are violated, but because tlie social and political institutions of society inadvertently favour some groups, usually the majority cultural group, over others?' Take the issue of language. Some minority cultures are immediately disadvantaged in and/or alienated from the political sphere because the language in which politics is conducted and power expressed is foreign to them. Moreover, the political institutions of a pluralistic society cannot help but reflect the customs, values, beliefs and symbols of the dominant cultural group to a grearter degree than those of minority groups, thereby unfairly advantaging it further. Hence, as Bhikhu Parekli writes, "The [traditional] liberal response [to cultural diversity] thus does little more than carve out a precarious area of diversity on the margins of a predominantly assimilationist str~cture."~' Many liberals today explicitly acknowledge this fact about the inherent inequality of the cultural marketplace. They have come to accept that the neutral state traditionally extolled by liberalism is neutral only in a very limited sense. Kymlicka writes: A ~nultinational state which accords universal individual rights to all its citizens, regardless of group membership, may appear to be 'neutral' between the various national groups. But in fact it can (and often does) systematically privilege the majority nation in certain fundamental ways -- e.g., the drawing of internal boundaries; the language of sclioois, courts and government services; tlie choice of public holidays; and the division of legislative power between central and local gover1iments.5~ Likewise, Yael Tamir observes that "those who create the political system, legislate its laws, occupy key political positions, and run the state bureaucracy have a culture that they cannot avoid bringing into the political domain, the separation between state and culture is revealed as an impossible endeav~ur."~' From the liberal point of view then, members of minority cultures areunfairlv disadvantaged because they do not enjoy the same choice-enabling background conditions as members of mainstream cultures through no fault of their own. What is required for engendering diversity, therefore. is not simply equal toleration by the state of all permissible groups norjust equal protection of universal basic rights, but the granting of special recognition and rights to these unfairly disadvantaged groups. These riglits would serve to compensate minority groups, to help secure for them what the majority already takes for granted." Yet the political liberal, becszse of her insistence that the state be nonjudgemental about different ways of life, cannot entertain the idea of group-specific rights. She will argue that just as the state should not, for example, support one vision of the 'just" family or one religion against another as this is a controversial matter over which reasonable people disagree, neither should it provide special support for some cultures over others. These are particular ways of life not shared by all, and so state policies favouring some ways over others would be contestable, constituting thus an unfair use of state resources. The political liberal would, therefore, be more comfortable leaving the survival of competing cultures up to the forces of the marketplace than to gmnt some groups special rights over others. To be sure, she will do her utmost to ensure that basic and familiar claims like equal individual liberties and freedoms of association and expression are equally respected and protected, and hope that with these basic rights in place, the marketplace can be more, rather than less, fair. But she would be reluctant to do more. The fact that some groups may perish without state support because of the unavoidable inequalities of the marketplace, while a matter to be regretted by the political liberal, is something she cannot do anything about given her greater commitment to stay impartial between competing substantive ways of life. By contrast, because it does not claim to be disengaged from liberalism's own comprehensive mom1 commitments, comprehensive liberalism retains the mom1 basis upon which to ground the idea of group-specific rights. Its comprehensive commitment to autonomy which gives it the moral basis, and indeed also the obligation, to challmee ways of life antithetical to liberalism as a comprehensive idea also, logically, gives it the mom1 basis and the obligation to support ways of life (conducive to autonomy) which are being unfairly endangered. Its concern for individual ethical autonomy translates into a concern for the cultural bases within wliicli this autonomy is exercisable. So while political 7 1 liberalism may have to regret tlie passing of some liberal cultures, the comprehensive liberal will insist on state support for these threatened ways. Active support for permissible ways of life will not just ensure their endurance but also their flourishinp. This seems to me to be the crux ofthe diversity issue: how well permissible ways of life fare or flourisli as opposed to whether they can simply survive. It is not enough, if we take cultural membership to be morally significant, to simply provide them the "social space" (i.e., by not interfering with them) to survive (granting for the moment that a policy of benign neglect is sufficient to guarantee their survival). Cultural groups want more tlian just mere survival; they want also the conditions and resources to be vibrant communities worthy of self-respect and respect from others. Special considerations for a group (by way of language rights, providing it with extra state funding for cultuml activities, allowing for special provisions concerning education and so on) serve to enrich a community and enhance its respectability, and not merely allow it to endure against the pressure of a~similation.~' So understood, group-specific rights are not, contra Rawls, inconsistent with tlie idea of fairness and equality because what the state tries to do here is to compensate as far as possible for inequality of circumstance rather tlian of-, as Kymlicka has persuasively argued? The choice/circumstance distinction is important because were cultural membership merely a matter of choice, then there would be little justification for a liberal state to support some communities over others --this would be akin to the state providing special support for someone who has cultivated expensive tastes and wants, wliicli will be unfair to those who have acquired or opted for less espensive choices. But cultural membcrsliip is a matter of circumstance -- it is not a choice itself but tlie precondition wliicli makes cl~oice possible and is something into wliicli we are born and socialised. It is, in short, an ascribed and not at1 acquired trait. So, it is entirely consistent with tlle liberal idea of fairness and equality for tlle state to take an active role in protecting minority groups once we accept that some groups are unfairly disadvantaged in society for tlie reasons offered above.J9 72 Some have voiced the worry that group-specific rights may undermine the rights of minorities *the group accorded these rights. If it is the case that group-specific rights inevitably harm internal minorities, then tlie case for such rights is derailed from the liberal point of view. But as we shall soon see (Chapters 5 and 6), a liberal account of group rights has built-in safeguards against such violations; it conceptually disallows group rights that can be turned against the individual rights of internal minorities (or o f dissenting individual members of the group). A complete liberal justification and legitimation of group-specific rights involves two (defensive) stages then -- the first is to show why this special consideration for members of some groups does not disregard tlioseolltside these groups (i.e., why it does not violate the liberal idea of fairness and equality); the second is to show how these special rights cannot go on to violate rights of internal minorities or dissenting members (i.e., wliy these do not contradict the liberal commitment to individual liberty). My concern here is with the first stage. We see then that diversity is best protected not by state non-interference (as suggested by political liberalism) but by a comprehensive commitment to individual autonomy. Keeping the state out of the business ofjudging ways of life, rather than securing more space (by way of tolerance) for diversity, preempts the state from protecting vulnerable ways against dominant ones. Paradoxically, a stress on equal toleration, instead of giving a wider berth for different ways of life, actually deprives some of these of the state assistance they need in order to survive. A non-interfering state can at best only protect the formal space in the form, of benign neglect, for admissible ways to endure -- tlie rest is up to the groups tliemselves. That liberals who stress toleration as the fundamental liberal value are, as a general rule, less likely than comprehensive liberals to support group rights is easily confinned by a quick survey of the current literature. For instance, both Cliandra Kukatlias and William Galston hold toleration to be the fimdamental liberal value, yet both are suspicious of granting cultuml communities special rights. Kukatlias objects that Kymlicka's liberal theory gives "[cultural groups] too little insofar as regarding 73 choice a s the fundamental liberal commitment disregards the interests of cultural communities which do not value the individual's freedom to choose," but "it gives it too much insofar as liberal equality [ought not] to sanction special rights."60 Likewise, Galston says that "the more seriously we take diversity, the more seriously we must take the unitary public structure that both protects and circumscribes the enactments of diversity." We must "distinguisl~ between state permission, on the one band, and support or encouragement on the otlier.'"" Obviously, none of the above obviates the fact that comprehensive liberalism tolerates only n a y s of life which are not liostile to ethical autonomy. But, as we have seen, this stricter state toleration is more than compensated for by the fact that the comprehensive liberal state is also able to actively -t admissible ways. So even if comprehensive liberalism accords a narrower space for diversity, we have seen that this narrower space would nonetheless be a riclier one than the wider space offered by political liberalism. It is a space whic11 provides for the flourishing and not mere endurance of admissible ways of life. Moreover, there is no reason wliy compreliensive liberals sliould regret this narrower (but riclier) diversity. As I mentioned, liberals want diversity not because it is desirable in itself but because of its wort11 to individuals (both members and nonmembers). So, comprel~ensive liberalism need not apologise for its stricter criterion for ~ennissibility; instead, this stricter idea of permissibility should be treated as a strength and not a weakness of the tlieory. The important question liere is whether compreliensive liberalism permits only a certain kind of lifestyle, whether its stress on ethical autonomy entails that "individualistic ones [i.e., conceptions of tlle good] alone can endure in a liberal society, or [that] they so predominate that associations affirming values of religion or community cannot flourisl~."'~ Here we need only to recall the point made earlier that conlprehensive liberalism agrees with political liberalism's tenet that not everyone in a pluralistic society can be e s ~ e c t e d to pursue a fully 74 liberal or individualistic conception of tlie good. Where they differ is that comprehensive liberals also believe tliat it is important t o w individuals who want to examine and revise their conceptions of tlie good (which may require challenging comprehensive views Rawls takes to be beyond state rebuke). So, in a s far a s individuals choose to live a life where the values of "religion or community" are central, comprehensive liberalism would permit, and even support if warranted and necessary (as in tlie case of disadvantaged cultural groups), tliese aspirations. One's right to embrace tliese values is after all guaranteed by tlie basic liberal freedoms of association and conscience; it would be a drastic misunderstanding of comprehensive liberalism to think that it denies tliese basic liberties. As I have pointed out previously, wliile comprehensive liberalism promotes and protects individual ethical autonomy, it does not follow tliat it expects individuals to reject all non-individualistic conceptions o f tlie good. In other words, it is entirely permissible (and possible) for a person not to exercise her riglit to discard or revise tlie ideas of lier religion; slie can simply choose to keep her faith. Or, as we liave said earlier, we can more generously interpret this as an exercise of lier choice to retain her fi~ith. Again we must remember that while there are good reasons for rejecting the strong comprehensive liberalisms of Mill and Kant (as these are cornmonly interpreted anyway), political liberalism is not tlie only other plausible alternative. In this largely comparative chapter I liave shown wliy comprehensive liberalism does not face (or face alone) tlie problems Rawls poses against it, and 1 also showed why its concern for autonomy over toleration makes it a liberal view more supportive of cultural diversity. In tlie following two chapters, I shall extend this conception of liberalism to tlie global context. ENDNOTES 1. For example, two comprehensive liberals who disagree on this point are Joseph R z , WIIO proposes a perfectionist liberalism, and Will Kymlicka, who defends a neutralist liberalism. See Raz, The Moraliw o f Freedom (Oxfard: Oxford Univ. Press, 1986); and Kymlicka, Liberalism. Communitv and Culture, pp. 80- 1. 2. What would be the most correct interpretation of romprehensive liberalism is an issue I leave aside. My primary goal is to defend comprehensive liberalism, broadly conceived, against Rawls's charges. Resolution of the "internal" disputes within comprehensive liberalism will be worthwhile only after we are agreed that it is a conception of liberal political morality worth advancing. 3. Rawls, Political Liberalism, p. 78 4. Will Kymlicka, Multicultural Citizenshin (Oxford: Oxford Univ. Press, 1993, p. 152. 5. See, for example, Kymlicka's example of the tlieocmcy of the Pueblo which discriminates against members who renounce the traditional religion. Kymlicka, Liberalism. Communitv and Culture, pp. 196-97. 6. John Rawls, Political Liberalism (New York: Columbia Univ. Press, 1993). e.g., pp. 77-8, 195. 7. See, in particular, John Exdell, "Feminism, Fundamentalism, and Liberal Legitimacy," Canadian Journal of Philosonli~ 2413 (1994): 444-464; Susan Moller Okin, "Political Liberalism, Justice and Gender." Ethics 105 (1994), 23-43; and Anne Phillips. "Must Feminists Give Up on Liberal Democracy?" in Prosnects For Democracy, ed. David Held (Stanford: Stanford Univ. Press, 1993): 93-1 11. 8. T o recall the point made in Chapter I, Dworkin "does not use tlie word 'autonomy,' but in discussing the idea of treating people as equals, he is arguing for equal respect for the autonomy of citizens." Gerald Dworkin. The Theorv and Practice of Autonomv (Cambridge: Cambridge Univ. Press, 1988). p. 4. As I said then, even if we grant the difference in emphasis between Dworkin and other comprehensive liberals regarding the touch-stone value of liberalism, the relevant point here is that comprehensive liberals take toleration to be derived from a more fundamental moral ideal. 9. Ronald Dworkin, A Matter of Princinle (Cambridge: Harvard Univ. Press, 1985), p. 205. 10. See, e.g., Rawls, Political Liberalism, pp. n i v f ; and William Galston, "Two Concepts of Liberalism," Etllics 105 (1995): 516-534, pp. 525-27. In his Tanner Lectures, Ronald Dworkin shows in greater detail how the different starting premises ofthe two models of liberalism result in two very different ideas oftolemtion. One model, the political liberal one, "builds neutrality in at the start of the story it tells. It argues that the political perspective must be created, so far as possible, under a methodological axiom of ethical neutralihl. that it is Dart of the ooint of the entire constructive exercise to secure as much ethical neutrality as possible". The comprehensive model "arrive[s] at neutrality in the course of rather than at tlie beginning ofthe argument, as a theorem rather than as a methodological axiom. It hopes that the liberal ethics it constructs will not only appeal to people who have very different substantive views about the good life. but also provide reasons why each of them should be tolerant o f the others. Though both strategies defend tolerance, they arrive at different interpretations of that virtue, and therefore different conceptions of liberalism." Ronald Dworkin, "The Foundations of Liberal Equality," in The Tanner Lectures on Human Value XI (Salt Lake City: Univ. of Utah Press, 1990), pp. 21-22. 1 I . Rawls, Political Liberalism, p. 150, my emphases. 12. It is far from clear what an appeal to a partially comprehensive view is supposed to mean. 1 assume that it means we are to present our comprehensive view starting from the least contentious (and the most general) ideas, avoiding its more fundamental and controversial points as far as possible, invoking progressively more contentious points only if the previous (less contentious) arguments are themselves challenged. 13. Rawls, Political Liberalism, p. 152, my emphases. See also pp. 153 and 250-251 for other instances of relying on comprehensive views to defend and sustain political liberal ideals. 14. Obviously, Rawls cannot assume that once the fundamentalist sees the comprehensive support of liberalism. she will be sufficiently "enliglitened" and will voluntarily rescind her demand. All it means, simply, is that the state now has a justification for denying her this demand. for showing why slie is being unreasonable, and to put her away if necessary. No state, liberal or not, can avoid the use of coercion. The crucial point is how and when this can be justified. This is a point I return to briefly in the next section. The issue at hand concerns not so much whether intervention is warranted, but the earlier step of identifying our moral stance. 15. 1 say 'most' because there are some 1st-order disputes whicli do not stem from 2nd-order differences. For example, Kantian liberals can disagree over wlietlier pornography is permissible or not. Here the disagreement in not over the fundamental moral commitments of liberalism, but over what those commitments entail in terms of policy and how to best realise these commitments in the real world. 16. Steve Macedo, "Liberal Civic Educatio,~ and Religious Fundamentalism: The Case of God v. John Rawls?". Etllics 10513 (1995): 468-496, p. 490. my emphasis. 17. David Dyzenhaus, "Liberalism ARer the Fall," Pliiloson1iv and Social Criticism 2213 (1996): 9- 37, pp. 22-23. 18. It is this vacillation of political liberalism between its abstinence from truth claims and its appeal to them when pushed, which makes it especially vulnerable to the critique of the Fascist philosopher Carl Sclimitt that liberalism is contradictory. As Dyzenhaus puts it, "Folitical liberalism is t l n ~ s political in the Schminian sense. It asserts its truth against every challenge. But it is also political in just the contradictory way Schnlin thought liberalism had to be. It denies that it claims truth and so it claims to be neutral between all positions." Dyzenhaus, p. 23. 19. Dworkin, A Matter of Principle, p. 361. 20. Jean Hampton has argued the moral non-neutrality o f the foundation of liberalism in greater depth. "The Moral Commitments of Liberalism," in The Idea of D e m o c r w , ed. David Copp, Jean Hampton and John E. Roemer (Cambridge: Cambridge Univ. Press, 1995): 292-313. But wliile she takes this foundational commitment to be implicit in political liberalism, I showed above that Rawls explicitly, if reluctantly, admits to this reliance. 21. Rawls, Political Liberalism, p. 37. 22. John Stuart Mill, as he is commonly interpreted (including by Rawls, Political Liberalism, p. 37), would be an example of a strong comprehensive liberal. For more on the distinction between what I shall call weak and stronrr coniprehens&e liberaiism, see Chandra Kukathas, "Liberalism. Co~nmunitarianism and Political Community," in The Communitarian Challence to Liberalism, ed. Ellen Frankel, Fred Miller and Jeffrey Paul (Cambridge: Cambridge Univ. Press, 1996), 80-104, pp. 94-96. 23. Thus Joseph Raz says that while oppressive cultu:al practices should not be tolerated, he urges "restraint and consideration in thinking ofthe means by which [this problem] is to be countered." Joseph Raz, "Multiculturalism: A Liberal Perspective," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1994): 155-176, p. 170. See also Kymlicka, who says that taking acritical stance "does not mean that liberals can impose their principles on groups that do not share them." Kymlicka, Multicultural Citizenship, p. 165. 24. Kymlicka, Multicultural Citizenship, pp. 168-69. 25. It is beyond the scope of this work to go into a discussion as to when precisely an intervention is justified. Wllile it is clear that intervention is permissible and even obligatory in extreme cases, there are grey areas where it is less obvious whether this might be the case. Some of the relevant factors to be taken into account and balanced against each other include tlie severity of tile violation, the cost of intervening (to both agent and target and by-standing parties), the availability and feasibility of other courses of action and the probability of success of the intervention. 26. As mentioned, this is how many critics of comprehensive liberalism k~terpret John Stuart Mill. They may point to passages like the following to sliow the intrusiveness of Mill's liberalism: "The human faculties of perception, judgement, discriminative feeling, mental activity, and even moral preferences are exercised only in tlie making a choice. He who does anything because it is the custom makes no choice. He gains no practice either in discerning or in desiring what is best. The mental and moral, like the muscular, powers are improved only by being used." Mill, On Liberty (Indiana: Bobbs-Merrill Co, 1976). p. 71. 27. This phrase is from Mill, p. 71. 28. Kymlicka, Multicultural Citizenship, p. 82, my emphasis. 29. Yael Tamir notes that we should not commit the fallacy of equating-e with actual-e. Liberal Nationalism (Princeton: Princeton Univ. Press, 1993). pp. 20-21. So when Mill says that "He who does anything because it is the custom makes no choice" (Mill. p. 71). we can perhaps interpret him more charitably a s saying: He who does anythiogjgg because it is custom makes no choice. So one who abides by customary practicesafter having thought about and reflected on her options has actually made a choice. The following line from Mill perhaps lends ample support to this reading: "an intellieent followins of custom, or even occasionally an intelligent deviation from custom, is better than a blird and simply mechanical adhesion to it" (Mill, p. 72, my stress). 30. Frank Cunningham, The Real World of Democracv Revisited (Atladc Highlands, N.J.: Humanities Press, 1994), p. 41. 3 1. Without pretending to settle the problem of paternalism here, it seems to me that there are two different strategies available to the liberal. a) She could on one hand adnit that such liberal policies are paternalistic but justify this paternalism on some other (higher) meal ground. In short, non-paternalism carries only prima facie weiglit which could be overridden when more fundamental moral values are at stake. b) Or, adopting a completely different strategy, she could argue that these policies are only seemingly paternalistic, but because they in fact are choice enabling rather than choice restricting in the long-run, they are actually anti-paternalistic. But as said, I leave aside any confrontatio? with this question, which is a task resewed for a project offering a complete defense of liberalism. 32. It is worth noting in greater detail the difference between the political liberal and comprehensive liberal here. Political liberals will not say that liberalism is a competing idea, but rather it is a neutral or impartial one in the midst of competing ideas. In other words, the political liberal would claim to be an & between different competing ideas. So, secular education is not offered as a competitor to, say, religion but as the adjudicator behveen different religions. Comprehensive liberals, on the other hand. would bite the bullet, conceding that liberalism is another competing belief (an atheistical one at that) among others in a pluralistic society. But it does not forcibly impose this belief but only offers it as another option for individuals to reject or accept. Now, it seems to me that not only is the political liberal's move less honest, it is also questionable whether it can even succeed in convincing nonliberal and religious groups that it is the neutral umpire and not a competitor given its non-neutral consequences for these groups. 33. For example, members of religious groups are free to seek out new converts by preaching on street corners, taking up advertising spots in the newspapers or other public spaces, organising public rallies, distributing literature from door-to-door, and so on. 34. Rawls, Political Liberalism, p. GI, my emphasis. 35. Amy Gut~nann and Dennis Thompson, "Moral Disagreement in a Democracy," Social Philosodlv and Policy 12 (1995): 87-1 10, pp. 102, 103. 36. Rawls, Political Liberalism, p. 22011. An even clearer way of putting forth the distinction it seems to me, which surprisingly Rawls does not offer, is in terms of political versus social. The root of this misunderstanding of Rawls lies evidently in the misconstrual of Rawls's use of "public". 37. This conflation in Rawls has been pointed out by Kymlicka, "Two Models of Pluralism and Tolerance," in Toleration: An Elusive Virtue, ed. David Heyd (Princeton: Princeton Univ. Press, 1996): 8 1 - 105, p. 95. 38. Rawls, "The Domain of the Political and Overlapping Consensus," in The Idea of Democracv, ed. David Copp, Jean Hampton and John E. Roemer (Cambridge: Cambridge University Press, 1993):-245- 269, p. 252; Political Liberalism, p. 216. My emphases. 39. L.T. Hobhouse. Liberalism and Other Writinss (Cambridge: Cambridge Univ. Press. 1994). p. 68. See also Raz, Moralitv of Freedom, p. 161. 40. One may suggest that a m political liberalism would be equivalent to a weak comprehensive liberalism -- the state would judge but not politically enforce. But this is in principle not possible -- if political liberalism is a political philosophy detached from comprehensive views, a political philosophy without moral foundations, it simply can have no principled basis for politically judging comprehensive moral views. Recall Rawls' point that "political liberalism does not attack or-e any reasonable view. As a part of this, it does not criticize, much less reject, any particular theory of the truth of moral judgements." Rawls, 1993, pp. xix-xx. It is not because he holds a "weak" version of political liberalism that Rawls keeps the state from makingjudgements outside the political; rather it is the very nature of political liberalism that the state does not judge matters outside the political sphere. But remember, as pointed earlier. that this does not preclude the making of these judgements by private citizens or associations. Recall the moral dualism of Rawls pointed out in Chapter 2. 41. Those who do are expelled from the liberal camp and labeled "libertarians". 42. See, e.g., Kymlicka, Liberalism. Communitv and Culture, pp. 165-66. 43. See, e.g., Arthur Ripstein, "Recognition and Cultural Membership," Dialo~lle XXXIV (1995): 33 1-41, 338-39. 44. Rawls, Political Liberalism, pp. 197-98. As we may recall, unreasonable cultural ways of life (namely, ways hostile to the values of political liberalism or to political liberalism itself) are not permitted in the politicd liberal state. Also, some~reasonable ways may simply not find enough adherents and pass on. As we discussed earlier, the liberalising effects of some neutral public policies can undermine ways of life whose passing, Rawls says, "may have to be accepted, often with regret." Ibid., p. 200. 45. Ibid., p. 197n; see also p. 199. 46. Ibid., p. 199. 47. Ibid., p. 196, my stress. 48. Ibid., p. 198. 49. This position has been more explicitly endorsed by other libcral philosophers. For esample. Jiirgen Habermas thinks that "if the selective reading of the theory of rights is corrected to include a democratic understanding of the actualization of basic riehts, there is no need to contrast it with a [theory] that introduces a notion of collective rights that is alien to the system." Habermas, "Struggles for Recognition in the Democratic Constitutional State," in Multiculturalism, ed. Amy Gutmann (Princeton: Princeton Univ. Press, 1994): 107-48, p. 116, my emphases. 50. This is a common objection raised by communitarians and feminist theorists. See, e.g., Cl~arles Taylor, "The Politics of Recognition," in Multiculturalism, pp. 56-58; and Iris Marion Young, "Polity and Group Differeitce: A Critique of the Ideal of Universal Citizenship,"&ks 99 (1989): 250-274, pp. 267-269. 5 1. It should be clear that the idea of group-specific rights (or group rights for short) is understood here as rights which accrue not to groups in and of themselves but to individual members of these groups. 1 shall say more about this in Chapter 5. 52. Taylor, pp. 42-44. 53. Bliikliu Parekh, "British Citizenship and Cultural Difference," in Andrew, Geoff, Citizenslii~ (London: Lawrence & Wishart, 1991): 183-204, p. 194. 54. Kymlicka, Multicultural citizens hi^, pp. 51-52. 55. Tamir, pp. 148-49. 56. Kymlicka, Multicultural citizens hi^, p. 113. 57. E.g., Parekli says: "It is widely conceded that the growing social, moral and economic problems, including those created by a sizeable and increasing underclass, cannot be solved by benign neglect or by throwing more money at them, but only by creating lively, responsible and self-disciplinary communities." Parekh, p. 194. 58. Kymlicka, Liberalism. Communiw and Culture. pp. 185-88. 59. It is important to remember tliat because the inequalities of the cultural marketplace are inherent, group-specific rights are different from affirmative action policies which some liberals take to be a temporary measure to redress past or remediable inequalities and hence to be phased out once these inequalities are conlpensated for or corrected. Rather, group rights are permanent policies given that the inequalities of the cultural marketplace can never be entirely eradicated in adiverse polity. See, e.g., Ibid., pp. 143-4. 60. Cliandn Kukathas, "Are There Any Cultural Rights?", Political Theon, 2011 (Feb 1992): 105-39. pp. 123-24. See also his more recent "Cultural Toleration," in Nomos XXXIX: Etllnicitv and Group Richts, ed. Ian Shapiro and Kymlicka m e w York. New York Univ. Press, 1997): 69-104. 61. William Galston, "Pluralism and Social Unity,"Ethics 99 (1989): 71 1-26, pp. 529-30; p. 530. 62. Rawls, Political Liberalism, p. 199. CHAPTER FOUR INDIVIDUAL RIGHTS AND STATE SOVEREIGNTY Comprehensive liberalism, although subject to alternative interpretations, differs from political liberalism principally in that it regards individual ethical autonomy mther than liberal toleration a s tlie more fundamental liberal value. To recall, the principle of toleration for comprehensive liberals is derived from liberalisn~'~ commitment to individual autonomy, whereas for political liberals, the idea of toleration is the very basis for liberal political morality. In addition, we saw that the version of compreliensive liberalism I am advocating is also sensitive to particular group-based claims on the grounds that membership in social groups provides the social context wliicli gives worth and value to a person's idea of the good and that tliis contest is not equally secured for all. A global tlieory informed by comprehensive liberal ideas will differ from Rawls's law of peoples in two important ways then. It will call for a more extensive commitment to human rights on the one hand; but it can also endorse the idea of peoples' or nations' rights on the otlm. In tliis chapter and the next, I thus extend compreliensive liberalism to cover international relations. Mere I extend the first basic idea that individual autonomy is a universal and fundamental liberal concern. I shall argue that a coinprel~ensive liberal global tlieory would be critical of well-ordered liierarcliical societies which Rawls's law of peoples tolerates, and that it would reformulate tlie idea of state sovereignty in a more radical manner than Rawls does. Individual Autonomy a11d Hierarchical Societies One immediate difference behveen a compreliensive liberal global theory and Rawls's law of peoples is that the former will be reluctant to tolerate political societies wliicli thwart the autonomy of their own citizens by restricting their freedom to question, reevaluate and revise the social roles and relationships 82 they may find themselves in and their socially formed ideas of the good life. As we have seen, Raw;. tolerates well-ordered hierarchical societies (WHSs) even though these societies do not permit certain standard liberal riglits, like freedom of expression and speech, equal liberty of conscience, and democratic rights. That is, for Rawls, the domestic principles ofjustice of a WHS need not be based on a conception of persons as "free and equal citizens" but on a common good conception ofjustice which assigns members their "moral duties and obligations", not as equal citizens, but according to heir ascribed social title and role.' But these neglected liberal rights are essential for the full exercise of one's capacity to question and revise one's conception of the good. Freedom of expression and thought, for example, is one principal means by which individuals question and reevaluate their life goals, and the social roles they find themselves in? Democratic rights also ensore that citizens have the opportunity to participate in making social decisions about matters that will affect them? Similarly, some semblance of domestic social and economic equality is necessary to ensure that individuals have the necessary background socio-economic conditions to properly and freely form and pursue their options. A comprehensive liberal global theory would, therefore, be critical of WHSs on the grounds that their public institutions contradict, or fail to provide the necessary conditions for, the exercise of individual autonomy. As 1 have stressed in the previous chapters, cotnprehensive liberalism agrees with political liberalism that not everyone in a diverse society, let alone in a diverse world, can be rensonablv expected to live fully autonomous lives, tliat it would be unreasonable to demand that all persons abide by tlle principle of autonomy in all areas of their own lives. Some individuals, for instance, would rather let tlle idea of faith and trust rule over certain (private) aspects of their lives. But the crucial difference between comprehensive liberalism and political liberalism is tliat compreliensive liberalism nonetheless remains fully committed to sonoorting individuals who_wisli to live fully autonomous lives, even if this involves questioning and criticising the custonls and traditions of their own societies. That is, 83 compreliensive liberalism's commitment to individual liberty overrides its toleration for diverse ways of life when a way of life conflicts with individual liberal aspirations. I sliould stress here that a political society need not be organised in one specific way before it can be liberal in character (e.g., it need not be in the form of a parliamentary democracy familiar in tlie west)? What makes a political society meet the essentials of libenlism, in my view, is tliat it accepts the idea that individuals have the capacity to question and revise the values in force in society and their own ideas of the good life, and that tliey be provided with the requisite social and political conditions to do so. This would require tliat its public and social institutions permit and facilitate tliis exercise of individual choice. Minimally, tliis demands tliat a society not restrict speech and expression, that it treats its citizens as equals before the law, and that it ensures some degree of equality (economic and social) in the conditions for making choices. But such institutional arrangements need ~ i o t entail a specific political model. Indeed we can imagine a theocracy in which these liberal individual rights are protected (including the implementation of measures to compensate minority religions for their less tlian equal political representation)? Or we can imagine a constitutional monarchy meeting the essentials of liberalism in the case its subjects are allowed to question the basic structure of tlieir society, even the idea of a monarchy itself, and that tliey have the protected rights and freedoms to do so. These political models can in principle be basically liberal. The reason why we reject Rawls's WHSs is not because they do not resemble the typical liberal-democracies of western societies but because they deny tlieir citizens the right to reevaluate and revise tlie basic structures of their respective societies. A comprel~ensive global theory, therefore. does not face the tension between tolerating nonliberal societies and protecting individual liberty -- it simply does not tolerate nonliberal societies. It would argue, on tlie contrary, that liberal dissenters and minorities within nonliberal societies sliould receive support and encouragement from liberal societies, even if these involve taking a s t a n c e & . k ! y (in an international forum) against the domestic institutions and practices of well-ordered states. This, of course, 84 does not mean that armed intervention is necessarily permitted, that comprehensive liberals are thus "drawn down the path of i n t e ~ e n t i o n . " ~ On the contrary, given the high human and social costs o f armed activities, this option should rarely be used. Instead, support can be in the fornl of sponsoring international debates, discussions and resolutions on behalf of oppressed peoples, engaging in public criticisms and condenlnations of nonliberal states, or offering economic incentives. or even imposing carefully focussed sanctions in more serious cases, to encourage reform. Because of its universal commitment to individual ethical autonomy, comprehensive liberalism remains consistent in both its international and domestic applications. Its commitment to individual autonomy which informs its domestic theory also informs its international theory. A comprehensive liberal state thus judges foreign nonliberal practices as it judges similar domestic nonliberal practices. A foreign society which, say, denies women equal democratic rights (even ifthis is based on religious arguments) will be judged against the same standards as a domestic comprehensive view which denies women similar rights. There is no reason on this liberal view why domestic cases should be judged more critically than foreign cases, why the scope of toleration has to be extended when we deal with foreign cases (as Rawls suggests), or why liberalism's commitment to individual autonomy should be attenuated when applied to international relations. The fact that a violation of liberal value takes place within a different political boundary by itself does not grant it any special moral status! Indeed, cultural sensitivity (a plea one often hears) itself cannot be the reason why there should be different standards between foreign and domestic cases precisely because many modern domestic societies are (almost) as culturally diverse internally as the global society. Ifjustice sets the limit for cultural pluralism domestically, then it should also set the limit for cultural pluralism globally. State Sovcrcignty Given its commitmcnt to individual autonomy as a universal ideal, it is obvious that a comprcliensive 85 liberal global theory must reject the idea of t h e u e sovereignty of states. Tlie idea of sovereignty is a notoriously difficult one to pin down, but classically, a state is absolutely sovereign when it alone has complete authority and jurisdiction over subjects within its own borders (its internal sovereignty) and it alone can determine its foreign policy and its dealings with other states (its external sovereignty): Understood in this absolutist sense, sovereignty, especially internal sovereignty, is antithetical to any global commitment to individual autonomy for it allows a state to do as it wishes to persons within its borders and not be held accountable to any external moral judgements. Hence Thomas Pogge argues that "[flrom the stand point of a ... [morality] wliicli centres around fundamental needs and interests of individual human beings, and all human beings", tlie idea of absolute sovereignty is no longer defensible? As long as individuals are tlie ultimate subjects of moral concern, state sovereignty cannot be absolute but must be conditioned on how states treat individuals within their territories. For liberals, basic individual liberties set limits on how states can act within their own borders. States which fail to respect these basic liberties forfeit tlie right to claim sovereignty; they are not entitled. therefore, to invoke the non-intervention principle to deflect external criticisms of their domestic affairs. "Unjust institutions [i.e., state regimes] do not enjoy the same prima facie protection against external interference as do just instit~tions."'~ The proposal by liberal internationalists that absolute sovereignty be done away with is not a novel one, nor without precedent in international practice. As international observers have pointed out, "sovereignty is no longer [absolute] sovereign, the world has outgrown it. The exclusivity and inviolability of state sovereignty are increasingly mocked by global interdependence."" Tlie advent of an international human rights tradition and law after tlie Second World War, as a response inter alia to the atrocities committed by tlie German state against its ow11 citizens," is as Rawls himself puts it, "an effort to provide a suitable definition of, and limits on, a government's internal s~vereignty."'~ The international law scholar Antonio Cassese writes, "Today the liu~nan riglits doctrine forces States to give an account of 86 liow they administer justice, run prisons, treat their nationals and so on."" Tlius, "[tllie direct application of international law to individuals ... has begun to evolve and circumvent the once impermeable membrane of sovereignty."" Absolute state sovereignty has also been compromised by tlie riglits of peoples. In fact, the affirmation of the rights of- to self-determination. rather than the now familiar individual ridits, is considered by some scliolars to pose the first cliallenge to tlie Westplialia or classical model o f sovereignty. Cassese tells us tliat this happened as far back as during the First World War wlien the self- determination principle was first proclaimed (in 1917) "to apply both to nationalities in Europe (chiefly those under the Austro-Hungarian monarchy) and to colonial peoples."" Hence this right, "particularly in its anti-colonialist version, sapped tlie [Westplialian] foundations of community of states for the very reason tliat it legitimized certain revolutionary forces, in particular peoples oppressed by colonial or alien Powers."" TO be sure, some countries are notorious for appealing to sovereignty and its corollary principle, tlie principle of non-intervention, to ward off international criticisms of their domestic rights abuses. But these same countries rarely adopt this stance consistently. For instance they may clioose not to object wlien the domestic affairs of other states are being criticised or they may tlie~nselves join in the international condemnation of abuses in other states.18 Moreover, tlie fact most states in tlie world today are signatories to various international rights declarations and legal treaties sliows tliat there is a general voluntary acceptance by states tliat sovereignty, in particular internal sovereignty, is no longer absolute or sacred. Tlius Cassese rightly observes that "no State currently cliallenges the concept tliat liuma~l rights must be cherished and respected everywhere in the world .... [All] have gradually come to accept the idea tliat massive infringements of basic human riglits are reprehensible and make the delinquent State accountable to the whole international conimunity."'" So wlien Rawls proposes tliat "we must reformulate the powers of sovereignty" by restricting a 87 state's internal sovereignty, namely "its right to do as it likes to people within its border", and by restricting its external sovereignty and "get rid of the right to wage war,''' lie reports a sentiment which is already generally accepted in international. theory and (to a lesser extent) practice. The pressing and interesting question is not so much whether sovereignty should be limited -- this all liberals (and many nonliberals too) agree with -- but where these limits should lie. This is where we will find serious disagreements. As we have seen, Rawls thinks tliat nonliberal states, even if they deiiy their citizens certain essential liberal rights, enjoy sovereign status so long as they meet the minimal requirements of being internationally peaceful and internally well-ordered" These are states in "good-standing" and should not be publicly criticised by representatives of other (liberal) states. But as 1 have argued (Chapter 2), this is an indefensible thesis from a liberal point of view. His suggestion tliat only tyrannical regimes are to be criticised merely reiterates currently affirmed international sentiment and practice. But why should liberals defend this status quo? Why does Rawls grant nonliberal states the right of sovereignty and thus the right to be exempt from external criticisms of their nonliberal political structures?" On one reading, it seems tliat Rawls tolerates these states for tlie sale of maintaining global stability." The preservation of global order is indeed one conimonly heard argument in favour of respecting state sovereignty --only by respecting the boundaries of states can we maintain some semblance of law and order in an already precarious and fragile international society. Hence Michael Walzer once wrote, "llie rights of member states [in international society] must be vindicated, for it is only by virtue of those rights tliat there is a society at all. ifthey cannot be upheld (at least sonietimes). international society collapses into a state o f w r or is transformed into a universal tyranny.'"' This is an argument we often hear on tlie world stage. Jinng Zeniin oftlie People's Republic of China said in a speech to the United Nations: The sacred nature of state sovereignty is inviolable. No state has the right to interfere in tlie internal affairs of another or force its own will on others. Some large countries frequently use tlie pretext o f 'freedom', 'democracy' or 'human rights' to encroacli upon the sovereignty of other states, interfering in their internal affairs, damaging the unity of other countries or the solidarity o f their nationalities. This is the major factor behind the lack of peace in the world t ~ d a y . ~ But defending stability for the sake of stability is an obvious violation of Rawls's own dictum. This preoccupation with stability stems from a Hobbesian view of political morality, a view from which Rawls goes to lengths to dissociate himself. In Political Liberalism, he stresses several times, and rightly so, that liberal theory should seek stability with resnect to iustice and not stability for the purpose of a modus vivendi." No liberals sliould equate order or stability necessarily with justice: a feudal society (where each is expected to keep to her own station in a rigidly hierarchical order) could (conceivably) be an exemplar of an orderly society but it would hardly count as a just one. As much as international stability may matter, it is but one factor in our moral calculus. Cllarles Beitz puts it neatly: "from tlie moral point of view, many things matter. The things that matter include peace and stability ... [but] they also include lluman rights and social justice."" Thus Pogge readily concedes that a "more assertive liberalism", that is, one which is sincere about defending human rights and willing to defy the borders of states in the process, may result in greater international conflict." To be sure, global strife may not bode well for individual liberties, and so we need to exercise utmost caution a s to how we can best go about protecting rights globally. But it is another thing altogether to suggest that order and stability arc desirable in themselves or alone and hence ought not to be risked ever. Moreover, even if order and stability= primary concerns, it seems to me that tliis would have implications only for our strateaies and not our moral iud~ements. A concern for global order will definitely limit the methods we may employ to enact or implement our moral judgements -- for example, we may be more hesitant about sending troops into a foreign country, even if we believe tlie situation t l w e to be morally deplorable, for fear that a military intervention might further aggravate the problem. But it is not obvious why tliis concern for preserving order requires limiting tlie kinds of moral judgements we may make; it is, after all, highly doubtful that moral j u d g e m e n t s h e can undermine 89 stability and peace. The burden of proof is on one who claims that mom1 debates, criticisms and censure seriously threaten global peace and order. But Rawls's expressed and philosophically more interesting reason why he thinks WHSs are entitled to sovereign status is because he believes these states qualify as communities in the- sense. That is, he believes them to be societies organised around certain comprehensive moral, philosophical or religious views. As we remember, WHSs (can) have an established state religion, are well-ordered in terms of their particular conceptions ofjustice based on their own traditions, and they are ordered around a public good? So just as a libenl state should tolerate nonliberal but reasonable comprcliensive views in domestic justice, so too should a libeml global order tolerate nonlibernl but well-ordered states. Read this way, respecting the sovereignty of well-ordered states is a not a compromise of libeml commitment (as is the case with the above argument in defence of stability) but is actually required by libeml toleration itself. We may call this understanding of the state, state communitarinnism. Just as Rawls makes a concession to the "communitarians" (to a degree) in his domestic theory of justice and thereby sees the need to tolerate nonliberal comprehensive views, he also makes a (stronger) concession to the state communitarians and accepts that WHSs ought to be tolerated a~?d granted sovereign s t a t ~ s . ~ " N o w I have argued in Chapter 2 that WHSs impose very different kinds of demands on liberal theory than domestic nonliberal comprehensive views and so,=e Rawls, tolerating W H S s i s t analogous to tolerating comprehensive views in domestic justice. Furthermore, I have shown in Chapters 2 and 3 that the very idea tllat a liberal state should tolerate nonliberal comprehensive views is an untenable one in the first place. But here I wish to examine a more basic point -- the com~nunitarian premise underpinning Rawls's toleration for WHSs, his beliefthat a WHS constitutes a sort of "moral comnlunity" and is therefore exempt from external moral criticisms and judgements. This claim deserves special examination because the issue of state sovereignty is a fundamental one in international theory, and this communitarian defence of the state is one of the more influential defences of sovereignty. Indeed 90 state communitarianism, if sound, would be most devastating for any international normative theory with a universalist aspiration because it denies the possibility of making or passing moral judgements across state boundaries (except under very extreme circumstances). The State as a Moral Community State communitarians proceed by treating the state as a moral community, very much in the same way a s (domestic) communitarians regard particular religious or cultuml communities within the state as moral communities. That is, they claim that it is as members (i.e., citizens) of a state that individuals come to learn moral rules and acquire the motivation to comply with them; that these rules are justified solely in terms of the traditions and the shared goods of the state; and it is as citizens that individuals are engendered and sustained as moral beings. Because states provide the social contests within which individual rights and freedoms take their meaning and worth, state co~nmunitarirtns conclude that there is no external basis forjudging the domestic practices of states. We respect and protect this moral standing of states by respecting their sovereignty. This communitarian argument for the moral standing of states is most explicitly presented by Walzer in his earlier ~ r i t i n g s . ~ ' Walzer argued that "the distinction of state rights and individual rights is simplistic and wrongheaded .... Without the first of these rights, the second is meaningless: as individuals need a home, so rights require a location."" The reason why the state is the locus of individual rights, he explained, is that "[the] political community is probably the closest we can come to a world of common meanings. Lanauaee, m, and & come together (come more closely together than anywhere else) to produce a collective consciousness."'' It is this shared understanding between the citizens of a state which makes it "presumptively, though by no means always in practice, the arena within which self- determination is worked out" and from which, therefore, foreigners are to keep out!' State sovereignty "derives its moral and political force from the rights ofcontemporary men and women to live as members 9 1 of a historic community and to express their inherited culture through political forms worked out among t l i e m s e l ~ e s . " ~ ~ We violate this right when we impose our judgements on a people without due regard for the boundary of its historic community.36 Another prominent comniunitarian who treats the state as a moral community is Alasdair Maclntyre. In liis often-cited lecture, "Is Patriotism a Virtue?", Maclntyre starts from tlie premises that "it is an essential cliaracteristic oftlie morality which each of us acquires that it is learned from, in and tlirougli the way of life of some particular community," that "[we] find k r ] justification for allegiance to these rules of morality in [ u r ] particular community; deprived of tlie life oftliat community, [we] \vould have no reason to be moral," and tliat "typically moral agency and continuing moral capacity are engendered and sustained in essential ways by particular institutionalised social ties in particular social group^."^' From these premises, he d n w s tlie conclusion that "patriotism and those loyalties cognate to it are not just virtues but central virtue^."'^ Maclntyre's main concern in this lecture is to sliow tliat patriotism, contrn liberal belief, is not a vice but a virtue by arguing tliat morality is particular, historical and contextual, and that tlie idea of a universal abstract morality propounded by liberals is a mistake with serious consequences. But the underlying point of immediate relevance to us here is that tlie s t a t e h the conimunity which provides this particular. historical and social c o n t e ~ t . ' ~ More recently, Mervy~i Frost presents what he calls the "constitutive theory" in his defence o f sovereignty. Frost argues that "a person is constituted as a rights holder of a certain sort within the conteht of a specific social relationsliip ... rights are not things a person can be conceived of having outside o f or prior to any and all social and political institutions" and tliat "a person only has value^ individual in a relationsliip of mutual valuation with another person or other people, i.e. within a community."" He then claims "tliat to become a wliole, free and ethical self a person lias to be a citizen of a good state. It is only in that capacity tliat individuality can be fully realised. Tlius citizensliip in a good state is not an option for a free person. but is rather a precondition for the existence of a free person."" Like Walzer and 92 Maclntyre, Frost stresses the formative role o f citizenship, how citizenship in a state "constitutes" us as moral persons, and therefore the ideas of sovereignty and individual rights are interdependent. Respect for individuals rights must, therefore, entail also the respect for state sovereignty. Contmry to the communitarian accusation, most liberals accept that individual rights and freedoms must be situated within a social context ifthey are to be fully exercisable and their worth realised!' They also accept that some of our socially defined ends nre constitutive, or definitive of who we are (although they add that these ends are themselves nonetheless open to choice)P' But it is the cultural cornuonent o f our social context which makes it thus niomlly significant for liberals. As Will Kymlicka writes, membership in a community provides us with the cultural "context o f choice" from which to choose how we want to live our lives, that "it's only through having a rich and sccure cultural nructure that people can become aware, in a rich and vivid way, of the options available to them, and intelligently examine their value.'"' Similarly, Joseph Raz points out that "[o]nly through being socialized in 3 culture can one tap the options which give life meaning. By and large one's cultural membership determines the horizon of one's opportunities.'*' What our options in life are. what renders thcm meaningful and worthwliile, is the "cultural narrative" we find ourselves in. The laoguage througli a~hicli we access various features of the "world out there" determines their very meaning and significance for us. As the anthropologist Clifford Geem tells us. human beings are "incomplete or unfinished animals w11o complete or finish tliemselves through culture -- and not througli culture in general but through highly particular forms of it."'" Indeed, the communitarian's account of moral communities is also based (albeit less explicitly) on the presupposition that cultural membersliip provides the prerequisite for moral agency. Walzer's rcference to a "world of common meaning" with a shared language, history and culture alludes to [!]is, as does Maclntyre's "wav of life in a particular community". The immediate question for the state commu~~itarians. therefore, is whether states have this cultuml feature, whether they represent worlds of 93 comlnon meanings or particular ways of life to qualify a s moral communities in the required sense. States can have this strong cultural dimension if they are homogenous national or cultural entities -- that is, if states are also national-states. I speak of "natioxl-states" rather than the more commonly used "nation-states" to stress the ethno-cultural basis at issue here?' As some philosophers have told us, a nation-state need not necessarily be based on a common ethno-cultural identity but can "embrace a multitude of different etl~nicities."~~ We can still rightly call these (multi-ethnic) nation-states because their citizens despite their ethnic differences are able to affirm a common public culture. But "national- states" as I am using the phrase refers to states whose boundaries contain only one ethno-cultural community. The point o f contention here is that state communitarians must rely on this ethno-cultural (i.e., national) conception of the state. A national-state (but not a multi-ethnic state) would capture the "world of common meanings" Walzer speaks off, or the connnon "way of life" MacIntyre refers to. It would exhibit a shared history, tradition, language and customs and hence there would be a "deep, horizontal comradeship" which conduces to its being "imagined as a community'' (in Benedict Anderson's famous tenn)Py Its political culture or institutions could and would actively reflect in an a vivid way the ethno-culture of its citizens. Its language of politics, political symbols, public institutions, school curriculum, official religion and even mundane but deeply-felt matters like religious and public holidays would represent and reflect the shared values and beliefs fits citizens. In short the public culture of a national-state would reflect and sustain a common encompassing way of life?' But the fact of the matter is that few states today, pace the state communitarians, hierarchical or liberal, are national-states in this ethno-cultural sense, and so few states actually mirror a "common way of life" or a "world of common meanings" to count as a moral community in the communitarian sense. On the contrary, most states today are multi-ethnic states, drawing together different and sometimes antagonistic ethno-cultuml groups or "historic communities" rather than representative of a single "historic community."" As has been commonly pointed out, "[mlany 'nations' (as self-conscious ethnic units) are 'entrapped' within a sovereign state administered by a government that is controlled by a different nation".J2 For a familiar example, the state boundaries of many African countries after decolonisation bear no resemblance at all to national or ethnic ones. Different nationalities are forced into a single political society, while other national conlmunities are split by 'arbitrarily' defined political borders. The basic flaw of the state cotnmunitarianism argument, then, is that it takes it for granted that states are homoeenous ethno-cultural units, a mistake commonly committed in normative international relations theory. As Hugh Seton-Watson says: The belief that every state is a nation [i.e., a distinct ethno-cultural type], or that all sovereign states are national states, has done much to obfuscate human understanding of political realities. A state is a legal and political organisation, with the power to require obedience and loyalty from its citizens. A nation is a community of people, whose members are bound together by a sense of solidarity, a common culture, a national consciousness. Yet in the common usage of English and of other modern languages these hvo distinct relationships are frequently c~nfused."'~ The communitarian defence of state sovereignty founders because very few, if any, "political comnlunities" actually constitute "historic communities" (to utilise Walzer's own terms). To be fair, Walzer conceded that "[s]ometimes political and historical communities don't coincide, [that] there may well be a growing number of states in the world today where sensibilities and intuitions aren't readily shared; the sharing takes place in smaller units." But he went on to argue that the recognition of state boundary is "the only way we have of establishing an arena within which freedom can be fought for (and sometimes) won."s4 These internal differences are to be "worked out politically [free from foreign interference] and [their] precise character will depend upon understandings shared among the citizens about the value o f cultural diversity, local autonomy, and so on. It is to these understandings that we must appeal when we make our arguments."" Walzer's argument presupposed that citizens of a multinational or multi-ethnic state h a v e a t some shared understandings about "diversity, local autonomy" and other core values from which 95 differences can be negotiated and resolved. But, as Kymlicka rebuts, "if on [Walzer's] own terms, sensibilities are not readily shared behveen the different historical communities in a [culturally diverse] country, then there is no reason to think there will be any shared meanings over the value of local autonomy and cultural diversity."" Consequently, any perceived "shared" understandings in a diverse political society are likely to be the understandings of the dominant national community forcibly imposed on minority groups. Rather than winning for such a state moral legitimacy, this forceful imposition of "understandings" on all should in fact throw doubt on its moral standing. As Hurst Hannum warns, "the search for homogenity, may in fact, be more likely to lead to repression and human rights violations than to promote the tolerance and plurality which many claim to be essential values."" This last remark reveals how the communitarian belief that states can provide the contest requisite for moral agency "is itself especially prone to intolerance" for it seems to commend (for the purpose of creating a moral community out of a culturally diverse state) the imposition of the dominant national culture in opposition and disregard to the minority cultures within the state?8 Put in another way, state co~nmunitarianism is not only empirically inaccurate, but if it is taken to heart in snite of this inaccuracy, it risks becoming a morally objectionable doctrine. So the premise of state communitarianism that states constitute moral communities ignores the reality of nations and states. It presupposes a more neatly mapped and delineated world, a world in which each ethno-cultural unit or "people" has its own political community. Not only is it not currently (or for much o f history) the case that each people is represented by a state, but it is questionable whether it is possible, geographically and physically, for there to be enougll states for every people. Because of this flawed starting assumption, the state communitarian argument does not even get off the ground. For the sake of argument, it is worth noting that even if we were to accept the premise that states are moral communities, the state corninunitarian normative conclusion that outsiders should refrain from questioning domestic arrangements of states does not follow. For while it is true that membership in a 96 moral community provides individuals with the "context of clioice" within which to formulate and pursue their conceptions of the good, it is not true, ace the communitarians, tliat this context of choice itself is fixed and not revisable. As Kymlicka puts it, "we can and do make sense of questions not just about the meaning o f the roles and attachments we find ourselves in, but also about t h e i r d e . ' * 9 It is this mistake of treating our deepest ends as fixed and unchangeable which leads communitarians to the false normative conclusion that domestic public policy should not undermine these ends and roles but should on the contrary reinforce them, and which compels state communitarians to conclude wrongly that foreigners sliould not criticise the domestic affairs of (well-ordered) states but sliould instead respect tlieir sovereignty. But once we accept tliat our social roles and relations, and the ends wliicli these define, are open to revision, it would no longer be unreasonable to say (in the domestic case) that public policies should be open to helping those who want to revise tlieir communally defined particular roles and ends, and (in the international case) tliat foreigners should support citizens wliose rights to revise tlieir social roles and ends are denied by tlieir own states.'' Nations a n d States in Ideal Theory The assumption tliat states are co-extensive with a people or an etlino-national group is one taken for granted by many theorists. Rawls too makes this assumption as I mentioned in Chapter 2. He says, "An important role of a people's government, however arbitrary a society's boundaries may appear from a historical point of view, is to be the renresentative and effective agent o f d as they take responsibility for their territory and the size of their population."" T o be sure, Rawls quickly adds that lie is working within idenl or "strict compliance" theory wliicll aims to provide principles ofjustice for well-ordered societies under "favourable circunistances". T o his credit, lie says that in the non-ideal case where boundaries are "often liistorically the outcome of violence and aggression, and some peoples are wrongly subjected to others, the law o f peoples in its 97 nonideal pan should, as far as possible, contain principles and standards -- or at least some guidelines -- for coping with these matter~."~' But an ideal theory which overly simplifies the crucial question of sovereignty by assuming states to be synonymous to a people is so "idealised" as to be inapplicable to the real world and its pressing problems. As Beitz tells us, "No arguments about human rights in other countries, humanitarian intervention or international distributive justice, for instance, can proceed ... without encountering the question of the foundations and significance of sovereignty as a norm of international conduct.''' A proper analysis of these pressing issues in contemporary international justice requires that we grapple head-on with the difficult question of sovereignty, which in turn requires an examination of tlle relation between state and community. Indeed, if we understand ideal theory (as Rawls himself understands it) to mean "stric: compliance theory," that is, a theory which assumes that "the relevant concepts and principles are strictly complied with by all parties to tlle agreements made and that the requisite favourable conditions for liberal or hierarchical institutions are on hand,"64 then there is no reason at all why an ideal global theory should begin by assuming states to be homogenous ethno-cultural units. All idcal theory so understood is entitled to assume is that states are both well-ordered and aptly endowed, and so would and could comply with the principles ofjustice arrived at. But there is nothing in this understanding of ideal global theory which requires or even permits the factoring or assuming away of the question of culture and political community. On tlle contrary, assuming states to be homogenous has misleading implications for the very principles we hope to arrive at, principles which ideal theory assumes all will comply with. It begs the very question under contention. States in a Liberal World We have seen that state comrnunitarianism does not succeed as a general defence of sovereignty. First, 98 few states are moral communities in the way that is required to drive the communitarian argument; tliat is, few states are national-states. Second, even in the (rare) case o f a national-state, which arguably could be a moral community of sorts, it does not follow from this that this state is entitled to the degree of internal sovereignty that Rawls and the stare communitarians accord it. As I noted, accepting moral learning and practice to be contextual does not entail the impossibility of examining this context itself, even iftliis involves appealing to standards external to it. But this does not mean that no states can ever have moral standing, nor that the state system is necessarily flawed. In so far as a state (in tlie rare case) actually constitutes a moral community and allows its citizens to exercise their basic rights, including the right to reevaluate its idea of public goods, it enjoys certain moral standing or legitimacy. Nor is state communitarianisni the only possible justification for states in the eyes of liberals. In the event that a multicultural state actually protects and promotes the flourishing of tlie admissible diverse ways of life within its territory, and that it does so in manner that is accepted by its citizens as fair and just, it achieves a certain (derivative) moral status. While there is no provision in such a case for a public etlino-cultural identity, we should not underestimate, as Joseph Carens argues, "the extent to wliicli people from different cultures may create a common political culture" which can transcend these etlino-cultural differences."' It is not at all implausible that individuals of different etlino-cultural background can come to share a deep political culture organised around a commitment to certain ideals and values (e.g.. tlie ideals of human rights or democracy). Jurgen Habermas writes tliat this shared loyalty and affinity to constitutio~~al principles, what lie calls "constitutional patriotism," "by no means has to be based on all citizens sharing the same language or the same ethnic and cultural origins.'" The United States, Canada and Switzerland are considered prime examples of "constitutional patriotic" states. I do not mean to suggest tliat this kind of political affirniation is problem-free notwithstanding tlie differences in ethno- cultuml identities, nor that such ties engendered by this common political affinity can be as deeply 99 binding as ethno-cultural ties, but only to indicate how a shared political culture could conceivably warrant a state's moral standing!' Likewise, it has been argued by some liberals that states can serve utilitarian function by allocating and assigning universal rights and duties which would otherwise remain "imperfect" because there are no a assigned agents to claim or bear them. Thus, states take on special responsibilities for their own citizens not because no one else has the responsibility, but because these duties are most effectively fulfilled (for geographical and administrative reasons, e.g.,) by assigning them to citizens' respective states. As Robert Goodin writes: A great many general duties point to tasks tliat. for one reason or another are pursued more effectively if they are subdivided and particular people are assigned special responsibility for particular portions of the task .... National [sic] boundaries simply visit upon those particular state agents special responsibility for discharging those general obligations vis-bvis those individuals who happen to be their own citizens?' Goodin's central thesis is tliat when a state fails to live up to its special responsibilities (vis-1-vis its citizens), these responsibilities fall (back) onto other states or the international community. But as long as a state lives up to its special responsibilities (with respect to its own citizens) it fulfils an important utilitarian purpose, and has subsequently some moral ~ o r t h ! ~ With regard to state borders as they currently exist, while many liberals are quick to point out their arbitrary nature,7o and even argue in favour of secession (i.e., the redrawing of existing boundaries) when certain conditions obtain, they do not necessarily insist tliat all state borders be realigned and every nation be granted independent statehood." Some worry that doing this would "bring the international system into a condition of legal flux and make international law an agent of instability rather than ~tability."'~ But more significantly, liberals point out that it is simply geographically and physically impossible to give every national community a state. Moreover, it has been pointed out that alternative means of granting autonomy to national groups are available, tlirough "the establishment of national institutions, the formation of autonomous communities, or the establisl~nient of federal or confederal 100 states."" Indeed, as James S. Anaya astutely calls to our attention, "in an increasing interdependent world in which the formal attributes of statehood mean less and less," the redrawing of state boundaries \\dl become less and less significant than in an era in which sovereignty was absolute.'' When sovereignty is no longer absolute and the laws within it final, it makes less difference whether a nation is an independent state or an autonomous region as part of a confederal state; both enjoy representation in the global community and are subjects of international law. So, few liberals actually advocate that the world of states be replaced by a world state. Besides the fact that states can plausibly have certain moral worth for individuals in different ways (as described above), tlle idea of a world state worries liberals for a variety of reasons. Kant famously warned that a world state risks degenerating into a world tyranny and anar~liy.'~ He also thought that a state of global proportions would be impracticable given the "strains of commitment" (to use the modern expression of Rawls's). A global state would be too dispersed, too stretched-out, to foster the level of individual commitments requisite for a functioning democratic government; "laws progressively lose their impact as the government increases its range."16 Other liberals might worry about the homogenising effects of a central global state. And most poignantly, the idea of a world state seems to some to be hopelessly utopian, reachable perhaps only "in the wake of some global catastrophe" as Pogge graphically puts i t 7 ' What most liberals argue for, then, is less utopian although not politically insignificant. They urge that sovereignty no longer be absolute and stay concentrated at tlle level of states. Specifically, they propose that sovereignty be dispersed vertically, upwards towards supranational bodies, and also downwards towards particular communities within states." Dispersing sovereignty towards international or regional institutions will offer different levels of protection for individuals against their own states. While states may remain the primary bearers of duties vis-l-vis their own citizens (for the sake of efficiency if nothing else), supranational institutions can ensure that this responsibility is carried out and be ready to take it over if necessary (as when a state reneges on its duties). Similarly, transferring 101 sovereignty to local communities will limit a given state's direct power over all persons within its territory. The state now is another level of appeal, and not the sole and final This call for a dispersion of sovereignty is not a hopelessly utopian one (like the idea of a world state) but is in fact an idea already being actualised to some degree and put to test by the formation of the European Union, and more nascently by international organisations like the United Nations. "To be sure national sovereignty is fiercely defended, but at the same time there are examples of transfer of national power to transnational a~thority."'~ A thorough global-wide dispersion of sovereignty will significantly modify international relations practice as we currently know it, but "[olur task a s philosophers is to try to imagine new, better [global] political structures and different, better moral sentiments. Yes we must be realistic, but not to the point of presenting to the parties in the original position the essentials of the status quo as unalterable facts."" In short, a comprehensive liberal global theory will take human rights seriously enough to challenge the common conception o f state sovereignty even if it does not rule out the state system altogether. But this need not make it a radically cosmopolitan or individualistic global theory, one which is unreceptive to the idea of the rights of nations. As 1 have argued in the last chapter, comprehensive liberalism is also supportive of diversity, and is willing and able to endorse the idea of group-specific rights. So, I shall argue next that a global theory based on comprehensive liberalism can endorse the rights of nations in spite o f (or indeed because of) its individualistic and universalistic commitments. ENDNOTES I . John Rawls, "Law of Peoples," in On Human Richts, ed. Stephen Sliute and Susan Hurley (New York: Basic Books, 1993), pp. 41-82, pp. 61-62. Recall the discussion in Chapter 2 of this work. 2. For arguments as to why freedom of speech is a prerequisite for a decent political society, see Mill famous treatment in On Liberty, chap. 11. 3. As F n n k Cunningham says, "TIE unique virtue of democratic institutions and practices is that they increasingly enable people sharing a social environment to make their environment conform to their wislies". Cunningham, The Real World of Democracv Revisited (At!antic Highlands, N.J.: Humanities Press. 1994). p. 41. Also pp. 35-36. 4. This point, that a liberal order need not necessarily be democratic in the ordinary parliamentary form, is supported by Isaiah Berlin. He notes that "liberty in this sense [i.e., negative liberty or freedom from] is not incompatible with some kinds of autocracy. or at any rate with the absence of self-government. Liberty in this sense is principally concerned with the area of control, not with its source. Just as a democracy may, in fact, deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedonl." Berlin, "Two Concepts of Liberty" in his Four Essavs on Liberty (Osford: Osford Univ. Press, 1969). p. 129.1 owe this reference to David Dyzenhaus. 5. The esiled Tibetan Government in India is still very much a Theocracy in the sense that tlie spiritual leader of the people is still the formal political authority. But such an arrangement need not necessarily be nonliberal. Consider thus the attempts of the 14111 Dalai Lama to dismantle the feudalism historically characteristic of Tibetan society by drafting "a new liberal and democratic constitution for his country, based on the principles of the doctrine of Lord Buddha and under the guidance of their [Tibetan's] religion and [the] Universal Declaration of Human Rights." P.N. Cliopra, The Ocean of Wisdom: Tlie life of the Dalai Lama XIV (New Delhi: Allied Publishers, 1986), p. 100. If what is actual must be possible, then a successful reformation of Tibetan politics will demonstrate tlie possibility of a Theocracy which is characteristically liberal. 6. It is important to bear in mind here the distinction between not tolerating and intervening as stressed in Chapter 3. 7. To recall, the fact that a state may be able to & less overseas than it can at home should not bear on the kinds ofiudaements it makes. Tlie enforcement of moral judgements is a separate issue, independent of the judgements we ought to make. 8. The origin ofthis classical view of sovereignty can be traced back to the Peace of Westplialia in 1648, a European regional treaty which ended the Thirty Year War. Westplialia brought into inception three features characteristic of classical international relations: a) states are the basic political unit in international relations, b) an established :a of criteria for statehood, and c) the idea of non-interference with domestic affairs of states. See Daniel Philpott, "A Brief History of Sovereignty," Journal of lnternational Affairs 48 (1995): 353-368. 9. Thomas Pogge, "Cosmopolitanism and Sovereignty,"-s 103 (1992): 48-75, p. 58. 10. Charles Beitz, Political Theorv and lnternational Affairs (Princeton: Princeton Univ. Press, 1979). p. 121. I I . Jarat Chopra and Thomas G. Weiss, "Sovereignty is no Longer Sacrosanct: Codifying Humanitarian Intervention," Ethics and lnternational Affairs 6 (1992): 95-1 17, p. 104. 12. Antonio Cassese, lnternational Law in a Divided World (Oxford: Oxford Univ. Press, 1986), p. 289. 13. Rawls, "Law of Peoples". p. 49. 14. Cassese, p. 287. 15. Chopra and Weiss, p. 105. 16. Cassese, p. 13 1 17. Ibid., pp. 287-288. 18. Consider the international outcry over the wrongful execution of the Ogoni leader Ken Saro- Wiwa and eight of his associates. Many Asian states joined in the international condemnation of Nigeria at a Com~nonwealtli Summit. Notice also the Asian response to the 1997 coup in Cambodia. "In the past, regional leaders clung to the notion of noninterference in each olher's internal affairs. The ASEAN regional meeting last July [I9971 marked a turning point. The Asian leaders lined up to criticize the coup and demand free elections." Keith B. Richburg, "Democracy on March Across East Asia," Tlie Guardian Weeklv 1 1 Jan. 1998, p. 15. 19. Cassese, p. 148. Tlie Foreign Minister of Indonesia, Ali Alatas, concedes as much: "Indonesia and the ASEAN countries accept and recognize the universal validity of certain basic human rights and fundamental freedoms" even tliough he rejects how these rights are currently implemented. Quoted in Christina M. Cerna, "East Asian Approaches to Human Riglits," Buffalo Journal ol"international Law 212 (1995): 201-213, p. 203. This does not mean of course that there are no cases of noncompliance witli accepted universal human rigllts standards. But less than perfecl enforcement of or compliance witli a principle does not mean the principle is no l o n g e r i n . 20. Rawls, "Law of Peoples," p. 49. 21. As we can recall, up to the point where states are not "tyrannical" domestically, e.g., s o long as they do not violate die basic rights of individuals to security and life, Rawls says tliey are states in "good- standing". But tliis leaves states free to deny their citizens other standard liberal rights -- like the rights to free expression, religious equality, and democracy -- which are essential for the full exercise of individual autonomy. 22. In fact some liberals who have a more forceful reading of The Universal Declaration of Human R&h-& and other international rights covenants will say that Rawls's view is m e conservative that current international theory. But in any case, because international practice lags behind theory on tliis count, Rawls's stance simply affirms current international practice which tends to lay stress on state sovereignty barring= extraordinary cases of human rights violations. 23. See Pogge, "Egalitarian Law of Peoples," Philosonhv and Public Affairs 2313 (1994): 195-224 p. 215. See also Chapter 2 here. 24. Michael Walzer, Just and Uniust Wars (Basic Books: New York 1992). p. 59. 25. Cited in Peter Moody, Jr, "Asian Valucs," Journal of lnternational Affairs 5011 (1996): 166-92, p. 166. 26. Rawls, Political Liberalism (New York: Columbia Univ. Press, 1993), p. 142f. This is wliy many commentators find R a w l s ' s r n t shift in his global theory towards stability for its own sake particularly distressing. See, for example, Stanley Hoffniann, "Dreams of a Just World," New York Review of Bnoks 42 (2Nov. 1995): pp. 52-57, p. 54; and Pogge. Some indeed argue tliat tliis modus vivendi is already implicit in his domestic tlieory. See Dyzenhaus, David. "Liberalism After the Fall." Pliilosonhv and Social Criticism 2213 (1996): 9-37. 27. Beitz, "The Reagan Doctrine in Nicaragua," in Problems of International Justice, ed. Steven Luper Foy (Boulder: Westview Press, 1988), p. 188. 28. Pogge, "An Egalitarian Law of the Peoples," p. 21 8 29. Rawls, "Law of Peoples," pp. 60-62. 30. In his domestic justice, wliile Rawls accepts tlie communitarian claim concerning the constitutive nature of some of our ends, lie nonetheless insists tliat citizens, individuals are free and equal. So wliile lie concedes tliat individuals can be "communitarians" in private, he demands nonetheless that tlie public political iistitutions of the society be impeccably liberal. So in domestic politicnl liberalism, coininunitarians get only half of what they want. But in his global justice, Rawls not only accepts that citizens need not be liberal citizens in their countries, but neither does lie push for a truly liberal global order. State communitarians get all tliey are asking for here. For statements regarding Rawls concession to the communitarians, see Kymlicka, Liberalism. Communitv and Cultore (Oxford: Oxford Univ. Press, 1989). pp. 58-59 and Pogge. 3 1. T o be fair, it seems that Walzer has now modified his state communitarian thesis. But because his so-called "communal integrity" defense o f the state, iirst presented in Just and Uniust Wars and further defended in "Moral Standing of States," Philoso~hv and Public Affairs 9 (1980) 209-229, is one of the more complete and influential communitarian defenses ofthe state, I shall use him as a paradigmatic exponent of state communitarianism. 32. Walzer, "Moral Standing," p. 228. 33. Walzer, Snheres o f Justice (New York: Basic Books, 1983). p. 28, my stress 34. Walzer, "Moral Standing," p. 210. 35. Ibid., p. 21 I . my emphasis. 36.1 should point out that not all states qualify as moral communities for Walzer. In extreme cases where abuses are wide-spread and systemic, we may "doubt the very existence of a political community to whicli the principle of self-determination might apply." Just and Uniust Wars, p. 101. Rawls's stance on sovereignty more or less coincides with Walzer's. Both deny that tyrannical societies are entitled to non- intervention; yet both allow nonliberal societies to qualify as states with moral standing. 37. Alasdair Maclntyre, "Is Patriotism a Virtue?", The Lindlev Lectures, Dept. of Philosophy, Univ. of Kansas (1984). pp. 8. 10. 38. Ibid., p. 11. 39. The above communitarian accounts of the moral standing of states are reminiscent of the views of Carl Schmitt who, as Dyzenhaus points out, held that a "successful sovereign decision would be one which got its legitimacy by articulating a vision of t h e u k or people which meets with the acclaim of some significant and homogenous segment of the population." Dyzenhaus, p, 13. 40. Mervyn Frost, Ethics in International Relations: A Constitutive Tlieoly (Cambridge: Cambridge Univ, P.ess, 1996), pp. 138, 141. 41. Ibid., p. 148, my stress. 42. Will Kymlicka, Liberalism. Communih, and Culture (Oxford: Oxford Univ. Press, 1989); Yael Tamir, Liberal Nationalism (Princeton: Princeton Univ. Press, 1993). 43. Tamir, pp. 22-25. 44. Kymlicka, pp. 164, 164-65. 45. Joseph Raz, "Multiculturalism: A Liberal Perspective," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1994): 155-76, p. 162. 46. Cited in Tamir, p. 16, my stress. 47. "Culture" as used throughout this dissertation refers to culture in this ethnic sense. The modifier "ethno" is explicitly invoked wnen a contrast, say with political culture, is required. The fatal error we should avoid though is to treat 'et'micity' as synonymous to 'race' as is so commonly done. Social anthropologists have long argued that ethnicity unlike the (dubious) concept of race is a social rather than a biological concept. Thus the common way of life with a shared language, values, history and customs the co~nmunitarians speak of characterizes an ethno-cultural group but may or may not any pick out a racial group. 48. David Miller, On Nationality (Oxford: Oxford Univ. Press, 1995), p. 20. See also Frank Cunningham who puts this in terms o f "pluralistic nationalism." "The CansdaIQuebec Conundrum: A Trinational Perspective," Constitutional Forum 814 (1997). Canada's Prospects Series (Special Issue), ed., Janet Ajzenstat and Caroline Bayard, 119-129. The United States, Canada and Switzerland are possible examples of multietlinic or pluralistic nation-states. These are only approximations of course, like any real world instantiations of ideal models, and so admit of some exceptions (Miller p. 2011). And there is nothing about these being--states which makes them necessarily liberal or illiberal. I will pick up this thread again in a later section and in next chapter. 49. Benedict Anderson, lmaeined Communities, rev, ed. (London: Verso, 1991). p. 7. 50. As Kymlicka has argued, such binding ties between individuals who do not share a common cultural identity are rarely witnessed. Kymlicka, Multicultural Citizenshie, chap. 9. 5 1. See, for example, Hurst Hannum, Autonomv. Sovereisntv. and Self-Determination (Pliiladelphia: Univ. of Pennsylvania Press, 1990), p. 26; also David Miller, pp. 18-21; Tamir, pp. 58-63. 52. Richard Falk, "Evasions o f Sovereignty," in Contendine Sovereisnties: Redefinine Political Communitv, ed. R.B.J. Walker and Saul H. Mendlovitz (London: Lynne Rienner Publishers, 1990). p. 62. 53. Hugh Seton-W.:aun, Nations and States (Boulder: Westview Press. 1977), p. 1. 54. Walzer, Just and Uniust Wars, p. 89 55. Walzer, Soheres of Justice, pp. 28-9. 56. Kymlicka, Liberalism. Communitv and Culture, p. 223. 57. Hannum, p. 26. 58. This point was suggested to me by Frank Cunningham. See also Kymlicka, Liberalism, Communiw and Culture, chaps. 1 l and 12. 59. Kynilicka, Liberalism. Communitv and Culture, pp. 57-58. Likewise, Tamir says "embeddness and choice are not necessarily antithetical." p. 14. Of course, revising our constitutive ends is usually done in a piecemeal fashion. 60. See Beitz's discussion in "Sovereignty and Morality in International Affairs," in Political Theow &!g (ed.) Held, David (Stanford: Stanford Univ. Press, 1991), pp. 252-54. 61. Rawls, "Law of Peoples," p. 56, my emphases. 62. Ibid., p. 57. 63. Beitz, "Sovereignty and Morality," p. 237. See also Stanley Hoffman, "Dremns of a Just World," New York Review of Books Nov. 2 1995: 52-57, p. 53. 64. Rawls, "Law of Peoples," p. 52. 65. Joseph Ctiiens, "Complex Justice, Cultural Difference, and Political Comtnunity," in Pluralism. Justice. and Eouality, ed. David Miller and Michael Walzer (Oxford: Oxford Univ. Press, 1995), p. 6411. 66. Jiirgen Habermas, "Citizenship And National Identity: Some Reflections On The Future Of Europe," Praxis International 1211 (1992): 1-19, p. 7. 67. Andrew Mason has also recent provided another liberal defense of the state as having constitutive worth but more along the lines of Raz's defense of friendship rather than along those of Frost. See Mason. "Special Obligations to Compatriots" Ethics 107 (April 1997): 427-447. 68. Goodin, "What is so Special about Our Fellow Countrymen?" 98 (1988): 663-86, pp. 679- 69. Given the different possibilities ofjustifying a state's standing, it is odd that Mervyn Frost, in his attempt to ''justify and reconcile [the] two sets of seemingly antagonistic norms, ... the norms which assert that state sovereignty and the preservation of the state system is a good, and those norms premised up011 the notion that individual human rights are a basic good" (Frost, p. 138), should insist that the only possible justification for state sovereignty is his constitutive theory, the idea that a person is fully constituted as a moral agent only by being a citizen of a state. He argues, "The state ... should not be seen as a device wliich protects individual rights, but as a comprehensive arrangement bctween people who by mutually recognizing one another in certain specified ways come to constiti~te one another as free i~idividuals" (p. 151). Frost rejects the idea that states are protectors of human rights, inter alia. on the grounds that the state is often the major violator of rights (p. 126). What is highly curious here is that Frost should confine the applicability of his constitutive theory to "good states" and yet use the evidence of "bad states" to reject the "state as a protector of rights" argument. As he admits, "Patently such individual freedom i s m t constituted by kind o f state. In some kinds of state there is no provision made for private willing, private judgement and private conscience ..." (p. 149, my emphases). But if we confine our theories to& state, we can as easily defend a consent theory or rights-based justification of state sovereignty. 70. See Beitz, "Sovereignty and Morality," Hoffman and Pogge. 71. See, e.g., Allen Buchanan, The Leeitimacv of Political Divorce (Boulder: Westview Press, 1991). 72. James Anaya, "The Capacity of International Law to Advance Ethnic or Nationality Rights Claims" in The R i ~ h t s of Minoritv dultvres (ed) Will Kymlicka (Oxford: Oxford Univ. Press, 1996): 320- 330, p. 324. 73. Tamir, p. 75. 74. Anaya, pp. 325-26. 75. Kant, "Perpetual Peace," in Kant's Political Writinzs, trans and ed. Hans Reiss, 2nd ed. (Cambridge: Cambridge Univ. Press, 1991). p. 113. 76. Ibid. 77. Pogge, "Cosmopolitanism," p. 63. 78. Kaot, for instance, proposes a federalism which will "[extend] gradually to encompass all states and thus leading to perpetual peace." Kant, p. 104. 79. See Pogge, "Cosmopolitanism," pp. 61-69. 80. Cunningham, p. 146. 81. Pogge, "Egalitarian Law of Peoples," p. 224. CHAPTER FIVE THE RIGHTS OF PEOPLES I have argued that a comprehensive liberal global theory, because of its universal commitment to individual ethical autonomy, rejects the idea of absolute state sovereignty and reformulates sovereignty more radically than Rawls's theory does. But, nonetheless, it is not a radically individualistic or cosmopolitan theory incompatible with the idea of group or collective rights. On the contrary, it is a global theory able to support the internationally accepted idea of the rights of peoples or nations.' Our quarrel with an absolutist conception o f state sovereignty, to recall, is that states rarely coincide with a national community or a people and not because it is an expression of a collective right. We saw in Chapter 3 why comprehensive liberalism, unlike political liberalisn~, is able to accommodate the idea of group or collective rights. But this sensitivity of comprehensive liberalism to collective rights must not be read as a compromise of its universalistic commitments. Rather, its universalistic commitment to individual autonomy requires that it also endorse certain particularistic values and ideals on the ground that these provide the necessary precondition for the exercise of individual autonomy. That is, the particularism of comprehensive liberalism is entailed by its universalism. This last remark may sound contradictory to some for the dispute behveen particularism and universalism is commonly read as a conflict behveen two fundamentally different and irreconcilable conceptions of morality -- one which takes morality to begin from universal and impersonal premises and another which holds morality to start from particular and partial ones. But another way of understanding particularism and universalism is to see them as referring not so much to different conceptions of morality a s to the different implications of substantive moral principles within a single moral conception. To eiaborate, universalism holds that moral standards are universal and apply to all persons equally and 110 impartially, whereas particularism is the view that moral standards are context-sensitive and partial to specific social contingencies. But nothing from the above description necessitates tying either universalism or particularism to a universalistic or particularistic conception of morality respectively. On the contrary, particularistic mom1 principles can be easily derived from a universalistic moral standpoint. As Alan Gewirth has argued, "the ethical universalist principle of equal human rights can justify various forms of ethical particularism ranging from familial preferences to special concern for one's own count ry.... [Tliis is] because the social rules and institutions authorized by tlie ethical universalist principle provide for diverse and special role and 111odes of treatment, and these include various kinds of partiality and inequalities of treatment."' Similarly, Michael Walzer in his more recent writings proposes to understand particularism in terms of universalism, as an ideal derived from a universalistic moral point of view. He now wants, as lie puts it, to defend particularism "from within what [he], and many others, have taken to be the opposing camp" by arguing for a "universalism ... which encompasses and perhaps even hclps to explain the appeal of moral particularism."' Under what lie calls "reiterative universalism," universal values can take on particularistic expressions or implications when applied or given content. "Independence, inner direction, individualism, self-determination, self-government, freedom, autonomy: all these can be regarded as universal values, but they all have particularist implications .... Reiterated acts of self-determination produce a world of difference."' Given this interdcpendency between particularism and universalism, it is not difficult to see how liberalism can reconcile the "general conflict between the cosmopolitan and the national ideals of political organisation" (as Henry Sigwick once put it) in normative international relations Tliis global tension between universalistic and particularistic norms is vividly portrayed in the United Nations Cllarter which enjoins the "respect for lli~man riehts and for fundamental freedoms for all without distinction as to race, sex, language or religion" while siniultaneously defending tlie "respect for the principle of equal 1 1 1 rights and self-determination of&.'* But if we see these hvo seemingly opposing global norms as interdependent in the way described above -- i.e., a universal commitment to individual autonomy entails the respect and even protection of the particular communities within which such autonomy can be realised --then the tension behveen them is not necessarily irreconcilable. We need not regard these hvo norms as stemming from diametrically opposed normative traditions, but treat one (particularism) as a derivative or consequence of the other (universalism). It is, of course, imperative here that "nations" or "peoples" are not assumed to be coextensive or coterminous with "states" as we discussed in the last chapter. Because states do not necessarily constitute a community in the morally relevant sense, they do not necessarily provide "the context o f choice" requisite for situating individual rights and freedoms. We thus may not be able to reconcile the particular claims of states with the universal claims of human rights in the same way we can reconcile the claims of peoples or nations with the rights of individuals. In the case of nations, we need only to show how nationality provides the cultural context of choice for individuals to meaningfully choose and pursue their ideas of the good. In the case of states, we need to make the extra move, a step whose success cannot be guaranteed in the real world, of showing how a given political society -v represents or at least orotects this context of choice. I do not rule out that this can happen or does occur -- in contests in which states do represent a viable culture (in the case of a national-state) or when states do indeed protect the diversity of cultures within their borders (in the case of a just multinational state), then statehood and its accompanying particular claims are conipatiblc with a universalistic normative theory (Chapter 4). But while a liberal-individualistic perspective can regard the collective rights of a nation as inextricably tied to the individual rights of its members, it can only take the rights of states to be conditional on whether a state actually represents or protects the cultural conditions for choice of its citizens. My aim in this chapter is to establish only the first step; I hope to show llow the particularism of nationality and the universalism of liberal individualism are complementary. I will start with a short 112 discussion on the commonly cited rights of nations, explaining the sense in which these are collective or group-specific rights and how they fit within an individualistic moral framework. Then, relying on recent work done on liberal nationalism, I recount the relationship between liberal and national ideals, noting why these are not necessarily incompatible ideals but very much complementary. I next argue why a liberal concern for the nation translates into nations' or peoples' rights, that is, why these rights do not contradict the liberal ideal that individuals be accorded "equal respect and concern."' Finally, I address the common worry that collective rights pose a threat to individual rights. International Collective Rights From a liberal-individualistic perspective, collective or group rights (I shall use the two interchangeably) derive their moral force from the rights of the individuals members of the collectivity. Collectivities are granted special rights because of their significance to their respective individual members and not because collectivities in themselves are the bearers of rights. The controversial claim that collectivities have rights in and of themselves because they enjoy some tra~~scendental metaphysical status is avoided by this understanding of collective rights." Under a liberal reading, therefore, collective rights are, strictly speaking, individunl rights in that they are ultimately rigllts claimable by individuals. What gives these rights their "collective" dimension is that they are rights which are due to persons by virtue of their membership inparticular collectivities -- they are rights claimable by specified persons and not universally claimable by all individuals. To illustrate, consider the case of a language right. While this remains fundamentally a right exercised by individuals, it has the status of a collective right since it is a right relevant only to speakers of the language specified by that right and does not apply to individuals outside that linguistic group. Not surprisingly then, some philosopliers suggest that it is less misleading to talk of group- differentiated or group-specific rights rather than of group or collective rights? Contrasting collective 113 rights with individual rights conveys the impression that only the latter pertain to individuals when they both are, as explained above, essentially rights of individuals. But because the term "collective right" is the common term used in international discourse (even by those who regard these rights to be fundamentally the rights of individuals) I shall continue to use this terminology in my discussion. And when 1 contrast collective rights with individual rights (or human rights), as is commonly done in the literature. I mean by this the contrast between ~OUD-differentiated individual rights and miversal individual rights -- that is, between rights applicable to selected individuals-e of their cultural or ethnic membership and rights universally applicable to all regardless of their cultural or ethnic background. The proposed international collective rights, sometimes know as the third generation of human rights, include the rights of peoples to self-determination, to development, to sovereignty over their natural resources and to a cultural identity." The Universal Declaratioti of the Riehts of P e o ~ l e s (1976) says, for instance, that "Every people has the right to existence" (Article I), "Every people has an imprescriptible and unalienable right to self-determination" (Article 5 ) . "Every people has an exclusive right over its natural wealth and resources" (Article 8) and "Every people has the right to speak its own language and preserve and develop its own culture" (Article 13):' Other international declarations, like the UNESCO Declaration of International Cultural Cooneration (1966) and the UNESCO Convention for the Protection of the World Cultural and National Iieritaee (1972). stress the right of a people to a cultural identity." The 1966 Declaration proclaims the rights of peoples to develop their culture and to engage in cultural cooperation; the 1972 Convention calls for international cooperation and support in the preservation of cultural sites and heritages of peoples. Consider also the Uuited Nations' Declaration on the Rieht to Development (1986), wllich, as one observer explains, holds the "'right to development [to be] an inalienable right' devolving on both persons and oeonles."" 114 While these rights in tlle abstract are universal in that they are rights accruing t o 4 peoples, they take particular forms and have particular implications when specified and claimed. Michael Walzer calls this, if we may recall, "reiterative universalism" --the idea that values, while universally applicable in their abstract form, can "take concrete form only in particular expressions with particularistic implications."" The right to development implies that nations belonging to tlle so-called "less developed" or "underdeveloped" countries are entitled special considerations developed countries are not. The right to "preserve and develop" one's cultural identity also requires giving special rights to some nations but not others. For example, in North America, the mainstream Anglophone culture as a group does not need the special support the French and Aboriginal cultures need (language rights, self-government rights and so on) to ensure their cultural survival and flourishing; hence taking the cultural rights of the latter groups seriously would require giving them these special considerations. As a final example, the right of self- determination, again although a universal right in its abstract form, takes on particelar espressions when specified and exercised. For some nations, self-determination may require statehood, for others greater autonomy within a federated state may suffice. Likewise, groups attaining self-determination can order their political institutions in different ways, reflect different cultural views in their public spheres, have different criteria for membership, give different preferences to the needs of fellow nationals over foreigners and so on. Peoples' rights are thus rights with particular and specific implications; in their precise expression and application they become nation-specific rights -- rights to which members of specified nations are entitled but not outsiders. We can well recall that Rawls's global theory barely mentions the rights of peoples, other than the right of self-determination (and even then this is restricted to the negative right to lion-intervention), the right not to be forced into war, and other negative rights of forbearance. This deficiency in Rawls's global theory is not simply the result of his applying mistakenly his political liberalism to global relations but is actually a reflection o f a basic problem with political liberalism itself. As I argued in Chapter 3, because 11.5 of its restriction to the political and (hence its) insistence on being impartial and indifferent between (reasonable) cultural ways of life, political liberalism not only stresses toleration at the expense of individual liberty but is also unwilling to recognise collective rights for fear that endorsing these rights compromises its impartiality. Similarly in the global context, it seems that Rawls worries that endorsing the idea of peoples' rights would also violate the impartiality of global liberalism. But why is this lack (of peoples' rights) a deficiency from the liberal point of view? As in the case of domestic collective rights, to answer this question, we need to demonstrate two things: first, that nationality is an important liberal value, and second, that nationality is not equally secure for a11 individuals in the world and hence the legitimate need to grant some nations special rights to compensate for this i n e q ~ a l i t y . ' ~ I shall argue for these two points in turn below. Nations and Liberals Anthony D. Smith writes that "[nlational identity ... remains widely attractive and effective and is felt by many people to satisfy their needs for cultural fulfilment, rootedness, security and fraterni ty.... p l a t i o n s are linked by the chains o f memory, myth and symbol to that widespread and enduring type of community, the&& and this is what gives them their unique character and their profound hold over the feelings and imaginations of so many people."16 Yet, it has been commonly assumed that national affiliations and liberal ideals are diametrically at odds. Liberalism, it is believed, urges impartial and impersonal reasoning; to act morally from the liberal view point requires one to abstract herself from all social particularity and contingencies. Nationality, on the other hand, is partial and personal; it reflects and affirms rather than denies particular and special relationships, historical ties, and tradition!' But this perceived opposition between liberalism and nationality is a misconception, as many liberals have recently shown us. Rather than being conceptually at odds, these ideals are not only compatible but also complementary. 1 I6 First, let me say what I take the nation to be. The exact definition of a nation is still hotly contested in the literature, but most of us can agree with Yael Tamir that "a group is defined as a nation if it exhibits both a sufficient number of shared objective cl~aracteristics ... and self-awareness of its distinctness."18 But we should add to Tamir's working definition two further important conditions: That the national group occupies a territory or homeland and "that the people making it up have the will and the ability collectively to carry on large-scale tnnsgenerational projects to preserve and promote that about their nation with whic11 they identify."" Unlike other cultural groupings, people making up a nation are sometimes motivated to form a separate state (to pursue the long-term objectives) and thanks, among other factors, to occupying a common territory, they could realistically do It is wort11 noting at this point that while secessionist movements may sometimes be justified, the mere ability of a nation to become a state does not confer upon it the right to become one. Suc11 a right should depend, among other things, upon wlietlier or how secession would affect minorities within a seceding nation or the rights of individuals in a state seceded from." What counts as objective traits varies from group to group and from time to time. For Quebeckers vis-i-vis the rest of Canada, it is currently language (altliough religion was once another trait); for aboriginal communities in North America, it is history, religion and territory. For yet others, ancestry is the defining trait. For instance, Japanese or German nationality is very much ancestrally determined (the problem in these two cases becomes additionally complicated because nationality is also a criterion for citizenship). It sl~ould be clear here then that "objective traits" does not refer to some fixed or permanent features o f a community, nor does it imply an essentialistic conception of culture as an entity defined by certain necessary and sufficient criteria. Rather the objective traits are just those characteristics of a community wIiic11 collectively allow its members to distinguish themselves from other communities. This should not rule out the possibility of their being 'constructed' or 'invented'. In fact, such objective traits can be successfully created concurrently wit11 a nationalist movement. For instance, a language not held in 117 common in a community may be elevated to the status of a national language (as in Hungary in the middle of the nineteenth century), or a largely oral language may be transformed into a print language (as in Bohemia) as part o f the national consciousness b u i l d i n g Or consider the well documented "Speak Mandrin" policy in Singapore which aims to foster a common sense o f national identity among the various (mostly southern) Chinese dialect groups who collectively form the majority in the post- independence country. But besides having some of these objective traits and a territorial base, it is essential that members of tlie group see themselves as belonging to a distinct and historical community. A nation is thus, as Benzdict Anderson puts it, an "imagined community" because even tliougl~ "men~bers o f even the smallest nation will never know most oftheir fellow-members ... yet in the minds o f each lives the image of their c~mmunion."'~ So, while the existence of a nation requires tltat outsiders are able to perceive it as a distinct nation (hence the importance of tlie 'objective' traits condition), it is also necessary that individuals of that collectivity perceive themselves as members of a distinct national community in the sense of being engaged in some joint historic project. In short, a nation must be self-ascribed in the sense that members of the group perceive themselves as constituting a nation; and for this perception to work, it must have some 'objective' cllaracteristics which can be highlighted (or even created) to demarcate it from other groups. Furtl~ermore. it must occupy (even ifjust llistorically or even potentially) a territory. Finally, it must be regarded by its members as a historical community whose past and continuity into the future is I~ighly valued.'" Now, for much of the history of modern political tl~ought, nations and liberals have enjoyed at best an ambivalent relationship. Michael J. Smith writes that although l~istorically "many liberals see no conflict between the apparently particularist doctrines of nationality and the claims of liberalism itself. .. [Iliberals writing after tlie world wars, with fresh evidence of the evils of nationalism ... deplored [it] as an atavism, a barrier to enlightenment, an illiberal doctrine which prevents those who mistakenly cling to it 118 from recognizing their genuine interests.'" They have come to view nationalism as "irrational and almost inevitably dangerou~."'~ But, Smith continues, "[alt the same time, liberals continue to applaud [national] self-determination, especially in the guise of anti-colonialism. They seem to believe that the particularist doctrine of nationalism can be transcended by a universal conception of the self-determination of peoples." However, he laments that "liberals have never solved the problem of how and whether one can have the good effect o f the latter without the ill effects of the former."" But in recent times, the nation has been makinga welcome return in liberal t11ought. Partly due to the resurgence of nationalist movements in the past few years, but partly also due to the criticisms of the 'communitarian' theorists, liberalism has been forced to clarify and make explicit its own relationsllip with the community, in particular the nation, and its place in liberal political morality (Chapter 1). As a result, the nation, once relegated to the background of liberal theory, and even openly derided by some liberals, has been brought back to the fore and accepted as a legitimate subject of liberal concern. Many liberals now argue that ideals of nationality and liberalism are not conceptually at odds, as commonly perceived in tlle recent past, but are indeed complementary ideals. Thus in her Libewl Nationalism, Tamir "suggests that the liberal tradition, with its respect for personal autonomy, reflection, and choice, and the national traditional, with its emphasis on belonging. loyalty, and solidarity, althougl~ generally seen as mutually exclusive, can indeed acconlmodate one another. Liberals can acknowledge the importance of belonging, membership, and cultuml affiliations, as well as the particular moral commitments that follow from The reason why liberals can (and indeed must) acknowledge tlle nation is because [nationality] contextualises human actions, no matter how mundane, making them part of a continuous creative effort whereby culture is made and remade. Insofar as every action within a national entity is endowed with this additional dimension, individuals living within national frameworks enjoy options unavailable to those outside them. It is in this sense that national frameworks can be said to bestow extra merit on social, cultural, or political acts, and to provide individuals with additional channels for self-fulfillment that make their lives more meaningful.'" 119 Similarly, Kymlicka argues that nationality "provides us with an intelligible context of choice, and a secure sense of identity and belonging, that we call upon in confronting questions about personal values and project^."'^ And Joseph Raz in his liberal defence of national self-determination tells us that "[ilndividual well-being depends on the successful pursuit of worthwhile goals and relationships. Goals and relationships are culturally determined .... [I]t means that those goals themselves are ... tlie creatures of society, tlie products of culture."" What these liberals have shown us is that despite liberalism's individualistic commitments, liberal morality can, and indeed must, accommodate nationality (and its accompanying particularist claims) because national membership provides the precondition for the exercise of individual autonomy. Membership in a national community is an important liberal good because it defines our options and gives meanings and worth to our choices. Kymlicka. Raz and Tamir, among others, not only argue that liberalism must accommodate national claims, but they also point out that this acceptance of nationality was very mucli part of the liberal tradition in its earlier incarnations and has in fact remained implicit in liberal tliouglit tl~rougliout. "[Tlhere is a long standing, though mucli [recently] denied alliance between liberal and national ideas" whicli Tamir refers to a s the "hidden agenda" of liberal theory!' They point out that "liberal theorists have generally, if imolicitly [my stress], accepted that cultures or nations are&c [social] units of liberal political theory ... [the unstated assumption is that] liberal goals are achieved in and through a liberalised societal culture or nation."" Thus, the commonly held belief "that liberals have always opposed ... [tlie values of] ethnicity and nationality" is a only recent misconception in tlie liberal tradition." It is tlie cultural component of nations which makes them the relevant social units for liberals. Nations constitute what Kymlicka calls "societal cultures", namely cultural communities "whose practices and institutions cover the full ranse of human activities, enconipassing both public and private life.'"5 In a similar vein, Raz calls nations "encompassing groups" with "pervasive cultures". Individuals find in their 120 nationality "a culture which shapes to a large degree their tastes and opportunities, and whicl? provides an anchor for their self-identification and the safety of effortless, secure belonging."16 We may notice here that nations differ from other kinds of ethno-cultural communities (like immigrant communities) in that in tlle case o f the latter, besides the fact that these are not territorially based social units, their "distinctiveness is manifested primarily in their family lives and in voluntary associations, and is not inconsistent with their institutional integratio~i."~' Immigrant communities, for example, d o not form societal cultures because individual members of these communities "participate within the public institutions of tlle dominant culture(s) and speak the dominant language(s) [in the public sphere]."18 Their cultural expressions are confined largely to the nonpolitical sphere -- to private associations, the home, and in their private interactions. Compare these communities with national groups like the Aboriginal communities in North America, Quebec in Canada, East Timor in Indonesia. Tibet in China and the Kurds in Iraq and Turkey which constitute societal cultures. Despite enormous pressures from their respective states to assimilate them in the case of some, the national cultures in these groups (continue to) inform not just private but public life as well. For instance, national languages are used not just in the private sphere (like the home) but also in the public discourse as well (as in Quebec). Likewise. national religion is notjust a private way of life but can inform public and political affairs (as in Tibet). Indeed some ofthese groups maintain separate and different legal and political institutions from those of their respective state governments (as with some aboriginal communities in N. America). For the purpose of differentiating between nations and other kinds of cultural (e.g., immigrant) communities, we may refer to the latter as ethnic communities and use nations to specifically refer to the former.I9 This is an important distinction because while both nations and ethnic communities can be the claimants of cultural rights of some sort, the specific kinds of collective rights each can legitimately (and indeed do) claim are quite different in form." Specifically, the entire range of international collective rights or the rights o f peoples are claimable in principle only by nations. The right to self-determination, 121 the right to sovereignty over natural resources. for instance, are rights which are relevant only to groups with (or at least potentially with) a territorial component and a public political culture. One might respond that this liberal justification of national self-determination and other national rights on the basis of individual autonomy misses something central underlying claims for nationhood. Nationalists often do not couch their goals on the basis of individual autonomy but on non-individualistic tenns like solidarity, historical connection and national survival for its own sake. Thus libemlism fails to provide a satisfactory theory of nationalism. However. this objectiu.. makes too much of how claims are actually articulated. People may not articulate their nationalistic attachnlents in individualistic terms, and in fact they may refuse to do so; but this seems to me to be a matter o f how goals are described and presented, and not what the goals themselves are or ought to be. What is at the core of the liberal defense of nationality is that nationality is. in the end, valuable because of what it means t o m (and not because the nation has some transcendental moral worth in itself), that how well a person's life fares -- what options are in the end open to her -- is intimately connected. for a variety of reasons and articulated in a variety o f ways, on how her nation as a whole fares. No matter how these national claims are put fonvard, I can't see why they are not in the end claims about the worth of the nation 3 individual persons, about how the nation adds meaning to people's lives and choices. Invoking Walzer's notion of reiterative universalism again, universalistic ideals can take on particularistic expressions; the universal value of autonomy should be kept distinct from the (possible) particular content and expressio~i of autonomy. It is important here not to confuse individualistic and autonomy-based justifications with egoistical or self-interested ones, a confusion whicl~ seems to me to be at the base of many of the expressed discomfort with talk o f individual autonomy. Grounding national rights on individual autonomy docs not reduce the value of nationality to selfish and self-centered interests. One may care for a nation because of the sense of solidarity and community it engenders, which add worth to one's life. 122 Yet, it is clear that this does not reduce the worth of nationality to self-interest even as the nation is valued because of what it means to that person. But more to the point, it is not merely of psycho-philosophical interest whether or not the worth of nationality derives from autonomy or some other non-individualistic ideal. How we justify national claims has the crucial function of determining the kinds of nationalistic claims we ought to morally condone or support. Justifying nationalistic claims on the principle of autonomy sets the conditions and terms for the legitimate realization of nationalistic goals. This last point is exceptionally poignant in an era where resurgent nationalistic claims are responsible for incomparable human suffering and pain. Against those who not only fail to express their nationalistic ambitions in terms of autonomy but whose national goals are characteristically anti-liberal and harmful to the rights and freedom of individuals (especially of individuals belonging to minority groups), liberals will have to take a firm stance and deny the acceptability of these national claims. Intellectually, against the protestations of these nationalists, liberals will have to unflinchingly defend the ideal of individual autonomy, invoking their comprehensive moral and philosophical doctrines if necessary; strategically, all the liberal community can do is perhaps to contain, forcefully if necessary, these rights-violating ambitions. So if one makes the stronger objection that liberalism is inadequate because it cantlot ground all nationalistic claims, the response will be that this is precisely one o f t h e aims of a liberal theory of nationalism -- to set aside morally indefensible nationalistic claims from defensible ones. S o the liberal defence of the nation does not pretend that all national ideals and values are necessarily consistent with liberal principles. Some national practices may not respect individual autonomy (and other liberal values) let alone serve as the context of choice for the exercise thereof. There is no denial that a liberal global order can accommodate only national practices which are basically liberal in character. The point argued for here is that the special and particular affiliations and ties engendered by (characteristically libeml) nations are nonetheless values liberals can take a legitimate interest in. How 123 liberalism should respond to nonliberal national cultures -- that is, with nations sustaining practices contrary to the ideal of individual autonomy -- is a question I reserve for Chapter 6 where 1 explore the limits of pluralism. What I want to do next is to show how the liberal concern with nationality translates into a defence of international collective rights. Liberal Justice a n d National Rights As I mentioned, a liberal justification of international collective rights, in addition to showing nationality to be a liberal good, must also show why granting some individuals special rights on the basis of their nationality does not violate the liberal commitment to treating individuals with equal respect and concern. it does not immediately follow that there should be nation-specitic rights just because nationality is of value. Indeed, absent an argument to the contrary, given the importance of nationality for individual well- being, it seems all the more plausible that no particular nationality should be given special preference in the name of fairness. But, as we shall see, the idea of peoples' rights not only does not contradict liberal equality but is required by it. For one, peoples' rights aim partly at correcting historical injustices. Take the right to self- determination. This right was invoked originally to provide an argument for granting independence to subject people^.^' Understood as a principle of national liberation, the right of a people to self- determination can hardly be thought to contradict liberal justice; instead it is clear that it aims primarily to rectify the wrongful subjugation of peoples. Compensating for the effects of, say, colonialism calls for more than political independence -- it also requires cultural independence as well "because that [is] the only way [colonial peoples] could assert themselves, justify their rights as a nation, a community, responsible for its own e~istence."~' Colonial rule not only stripped many peoples of the world of their cultural tangibles (as when local art and treasures were shipped away to foreign museums), but also imposed, through education and governance, foreign cultures at the expense of local ones. Thus 124 compensatory justice for the misdeeds of colonialism would require other kinds of peoples' rights in addition to the formal recognition of self-determination, including the right to demand the restitution of cultural properties taken from their places of origin, to request international aid and assistance (e.g., in education, supporting cultural activities and exchanges) to help the recovery and revitalisation of a people's cultural identity and heritage. But the rights of nations do not simply aim to correct past global injustices. More significantly, they also aim to rectify prevailing inequality in global conditions. In the domestic context, as we have seen, collective rights do not violate liberalism's equal concern clause because these rights aim to compensate (as far as it is possible -- complete equality is not possible here) minority cultures for their disadvantaged cultural status!' Ascribing collective rights to minority groups, thereby restoring some equality in the conditions for exercising free choice, does not violate liberal justice but is in fact required by it. This need to protect domestic minority cultures has important implications for global justice. The special rights minorities are entitled to must be endorsed and defended by the international community as well if we take the protection of minority cultures seriously. Experience has shown us that few states can be entrusted to promote and respect the cultures of their minorities on their own. The plights of indigenous peoples in the world, the Kurds in Iraq, the Ogonis in Nigeria, Tibetans ill China are just some reasons why protecting minority rights cannot be left to tlieir respective states alone. Giving minority rights international recognition by affirming these rights in various international minority rights bills and treaties, will buttress the claims minorities have against tlieir states."' They can now count on the international community for (moral and legal) support should their rights be illegitimately denied by their respective states. When these riglits are internationally recognised, states are duty-bound, and answerable to a higher (is., international) authority, to protect and respect the rights of their own minorities. But besides protecting the rights of minorities within their states, international collective rights 125 also mitigate prevailing global inequalities, i.e., inequalities between the different national communities of the world. To be sure, tliere is no formal global political culture (i.e., a global state) which, in turn, inadvertently reflects tlie values and ideals of some nations and alienates others (\\'hich is one of the important reasons for collective rights in the domestic sphere). Nonetheless, there are other kinds of global inequalities which are more pronounced than in the domestic context and which have detrimental effects on tlie cultural identity of many nations. The most obvious global disparity is the drastic imbalance in the distribution of tlie world's wealth and resource^.^' One immediate response to this problem would be to implement a global principle of distributive justice, and I shall examine this issue in greater detail in a later chapter. Here 1 want to point out that alleviating global economic inequality requires more than just universally and imoartially enforcing the right of individuals to basic subsistence. Restoring tlie global economic imbalance requires also the recognition of certain collective rights, like the riglit of a people to development. Tliat is, what is required as well, besides the universal enforcement of individual rights, is tlie granting of special rights and privileges to certain nations whose economies are considered "less developed or under developed". Tliese rights may vary in kind and extent depending on tlie developmental level of tlie specific countries in question. They can include international financial institutions granting poorer nations concessional rates on loans according to their economic capacities, exempting poorer countries from certain international regulations (e.g., tlie rules regulating deep-sea fishing and sea-bed mining); it may well also require richer countries to offer poorer ones favourable trade terms, to provide them with developmental aid and assistance, and so forth. Yet, rather than being arbitrary or in violation of liberalism's own equality clause, the right to development, and the series of special riglits corollary to it, aim to equalise the conditions under wliicli the different nations of the world compete?'While the right t o development is not in the first instance strictly speaking a cultural right, it has important cultural implications for the very plain reason that a healtliy and adequately nourisl~ed population is better able to sustain its culture. 126 Global economic inequality not only hurts the economic well-being of peoples of poor nations. but also has severe direct cultural consequences. As Boutros Boutros-Ghali noted, "the culture of tlie rich countries, the consumer societies, manages to impose itself; manages evcn, to some extent, to place in jeopardy tile culture that is sometimes referred to ... as traditional culture.'"' He pointed out that "American culture comes and imposes itself in the Caribbean, in Chile; but Caribbean or Chilean culture cannot penetrate the consumer society of America .... French, English and American culture impose themselves, pass through such a pipeline into the Arab world; whereas Arab culture, apart from the products of certain specialised institutions and certain specialists in Arab affairs, lias no chance of penetrating tlie French, English and American consumer ~ocieties.'"~ So, not only are tlie cultures of poorer countries not regarded highly in the richer ones, but the cultures of the latter are threatening to drive out the cultures of the poor even in their own countries. There is "an overflow of cultural products of the rich countries, whereas the cultural products of the poor countries are unable even to find a local market."" Thus some ways of life are finding it harder to sustain themselves in tlie face of this uneven global cultural c o m p e t i t i ~ n . ~ The reasons for this imbalance between the cultures of the rich and poor are various and mutually reinforcing. Richer societies are better able to market and export their "cultural products;" cultures of rich nations are associated with a life of security, comfort and affluence which are especially appealing to poor societies sorely lacking even basic needs. Colonialism brought on "the destruction or deliberate undervaluing of a people's culture, their art, dances, religions, history, geography, education, orature and literature, and the conscious elevation of the language [and culture] of the coloniser."" Not surprisingly, many ex-colonial subjects till today still perceive tlie cultures of their previous masters a s superior to theirs. Also the global political clout wielded by richer nations provides their cultures with a prominent global profile. Although there is no global state as such which might inadvertently privilege a dominant nation (as in the domestic case), there exists an informal global political culture with reflects some 127 national ideals more than others. The United Nations, many observers have rightly complained, has become in many ways an American institution since the demise of the Cold War, thus in effect becoming a vehicle to further promulgate Anglo-American ideals, language and culture globally. The working languages and work etiquettes in the administrative centres of various international organisations (as in the United Nations Headquarters in New York, the International Monetary Fund in Washington, just to name two) also reflect tlie languages and conventions of the dominant global cultures. These are all possible explanations for the cultural inequality between ricli and poor nations. Because of this inequality in the capacity of nations to disseminate and sustain their cultures, there is a need to grant some peoples special cultural rights in order to help protect and sustain their ways of life and identities, "to attenuate the effects of the cultural products from the rich countries, and also make the ricli countries aware of certain intrinsic qualities in tlie cultures of developing countries."" This may require more than simply permitting some countries to impose quotas on cultural imports threatening to drown out their local cultures (tl~us exempting them from some international trade regulations). It can also call for international support in the export and transmission of the cultures of poorer societies to the richer ones (one way of recovering self-respect in one's culture is to have outsiders acknowledge its worth); it may also require that poorer cultures receive financial support and assistance to aid the maintenance of their cultures at home -- in the form of educational aid, funding for cultural events and activities, and sponsoring the restoration and preservation of important cultural heritages and treasures. As Boutros-Gliali recognised, "what we are seeking is not perfect equality; that will never rsist ... : but just that minimum ofequality which will make it possible for the [cultural] pipeline to function in both directions."" Most of these positive cultural rights are already proposed and even affirmed in some form or other in various international declarations, including UNESCO's Declaration of the Princioles of International Cultural Coooeration and Convention for the Protection of the World Cultuml and Natural 128 m. A liberal defence of peoples' rights thus is not going to be jarringly out of phase with reality nor be so novel as to be derided outright, but will do mainly the important task of providing many of the currently proposed rights a moral basis and justificatory support. And more importantly, it will help rectify the traditional hostility of liberal states towards these rights, and also help correct the resulting perception on the part of nonliberal poor countries that liberalism fails to take their needs seriously and hence not a theory worthy of their assent. In sum, internationally recognised collective rights help to correct global inequality of circumstance and not (unfairly) subsidise the choices of some peoples. These are rights specially accorded to some in order to compensate for the unequal opportunities and conditions under which nations interact and compete. There are limits, therefore, to the kinds of rights which can be legitimately claimed on national grounds. Collective rights aim only to restore (as far as possible) the imbalance in conditions for choice, not to privilege some ways over others. Overcompensating for an inequality is an inequality itself. So, a minority nation cannot demand more than its fair entitlement of its country's resources even if it argues that this extra support is necessary for its survival.54 (But realistically, the concern tends to be the other way around, of minority groups not getting anywhere near their legitimate share.) Likewise, the dominant nation of an multinational state cannot generally demand that the state's political institutions actively reflect its culture and values. This would only further exacerbate the inequality in circunlstance and further marginalise the minorities of that state. We can think ofexceptions here -- in the case where the dominant national way of life is especially threatened by events in the world at large, it may not be unreasonable for it to politically support some of its cultural ideals and practices. But these are exceptional cases." Also, collective rights do not intend to 'rigidify' or isolate a national culture. Cultural identity is always in a state of flux - cultures change, evolve and borrow from other cultures. But it is up to members of these cultures to determine the terms of these changes, evolution and borrowings!' Peoples' 129 rights protect the context of choice of members, tlieir opportunity for making and exercising their free choice, against outside incursion, not to prevent change from within. Collective Rights versus Individual Rights Tlie introduction of collective rights in international discourse has met with resistance from some supporters of individual riglits. These individualists worry that recognising collective riglits will put individual rights at risk. Tliey share the understanding tliat collective rights are ultiniately tlie rights of individuals, but they fear tliat a majority in a collectivity can now trump the rights of tlie minority or tlie dissenting few in tlie name of enforcing tlie rights of the collectivity. Consequently, dissenting individuals who wish to question and reevaluate the practices and values of tlieir national community may be denied this right if most of their compatriots think tliat al!owing this will compromise the survival of their nation. This can happen wlien, for example, a nation organised around a religion disallows apostasy, fearing tliat allowing members to leave will undermine faith within the collectivity; or wlien a national community prohibits tlie use of foreign languages because it thinks this necessary for protecting its national language. Tlie opponents of collective rights point out that this risk to individual riglits is especially poignant in tlie international context because states are the common bearers of collective riglits in international practice. As the prominent Iiuman riglits scholar Jack Donnelly puts it, "States' fear of secession and governments' fear of revolution have combined to restrict the right to self-determination to little more than a right to sovereignty for thosestates ... tliat currently exist.'"' And this is "extremely dangerous," Donnelly continues, because the "riglits of states will be used to override the riglits of individual citizens." He points out how the collective right to development has been used by repressive regimes (of the third world) as a rationale for undermining tlie basic individual Iiuman riglits of their own citizens. Similarly, tlie riglit to self-determination has been invoked by leaders of tyrannical regimes to deflect international criticisms of their domestic liuman riglits abuses. "Thus the United States 130 Government gave as one of its reasons for withdrawing from UNESCO in 1984, its distaste at UNESCO's apparent support for 'peoples' rights', and at the danger that they could create new excuses for the denial of individual human rights."5S However, if we are agreed that the proper subject of international collective rights is not necessarily tlle state but rather the nation or people, then the above objection is disarmed. If anything, collective rights, rather than bolstering the sovereignty of states, actually dilute sovereignty because they empower groups (i.e., national or ethnic minorities) within states. As we have seen, self-determination rights allow minority nations to make claimsarainst their own states, and to do so with the support of the international community. As Cassese reminds us, the international affirmation of tlle right to self- determination obliges third-party states "to support peoples entitled to self-determination, by granting them any assistance short of dispatching troops; conversely, they must refrain from aiding and abetting oppressor States."'"elf-deter~ninatio~~ claims may require the states in question to disperse their sovereignty downwards towards national minorities within; or in more extreme instances, it may require that they forfeit sovereign control over a group entirely, as when a just secession takes place. Similarly, the collective right to developn~ent also gives less developed regions and national territories within a state tlle power to make demands against their own state government, and to do so with international support. So, collective rights, if properly understood, restrain state sovereignty instead of fortifying it. Moreover, the fact that states claim collective rights for themselves and use these as excuses to abuse the rights of their citizens is not reason enough to reject these rights. After all, all rights -- even traditional individual rights -- are open to state abuse. Witness how classical individual rights, like the rights to property and the rewards of one's labour have been interpreted by some states (especially rich developed states) to rule out distributive justice and social welfare. Yet few egalitarian liberal theorists are ready to call for the complete withdrawal of these individual rights. The pertinent philosophical question. thus, is not whether state abuses of individual rights do take place but whether these abuses are 131 justifiable at all or necessarily entailed by tlie acceptance of collective rights. As Donnelly himself has attested, there is rarely any basis to the commonly invoked argument that tlie collective right to development requires the overriding of basic human rights.'0 Nor is there any evidence that the idea of collective rights in itself makes it easier for states to ride rouglisliod over individual riglits. States may claim tliey have the right to trump individual rights, but whether such claims are remotely justifiable and defensible at all is a different question. But leaving aside the issue whether collective rights give states a convenient excuse to violate individual rights, the objection tliat collective rights hurt individual rights rests on a fundamental conceptual error. It assumes that all c o l l e c t i v e ~ s qualify as c o l l e c t i v e ~ s claims. But liberal supporters of collective rights are more discriminating than to grant all collective-based claims the status of rights. Following Kymlicka's insight, we can identify two different kinds of claims a group may make - - claims of "external protection" and claims of "internal restriction". Internal restrictions occur when the rights and freedoms of individual members (say to opt out, to question the values in force in the community, tlle social role tliey find themselves in and so on) are denied by their community. External protection claims, on the other hand, are claims a group has against other groups, in particular those of thc larger society, to be sheltered against the effects of their decisions and actions. Examples of external protection measures include giving a group self-determination rights, providing special support (through public funds, e.g.) for its cultural practices to help sustain it in tlle face of outside forces, or according it special religious or language rights to compensate for its marginalisation from mainstream society.'' The flaw oftlie above objection is tliat it assumes "internal restriction" claims are also collective rights claims and hence collective rights can contradict the rights of individual (dissenting or minority) members. But there is plainly no reason at all from a liberal viewpoint wliy internal restrictions should be admitted into the realm o f collective rights. If collective rights are understood to accrne fundanientally to individuals and are meant specifically to protect the context or preconditions of individual choice, then 132 internal restrictions straightaway fail to qualify as collective rights. lnternal restrictions not only do not protect the context of choice of individuals but, worse yet, they deny members the very right to make choices, including choices regarding the context itself. Internal restrictions defeat the very raison d'etre of collective rights. Only external protection claims are possible candidates for the status of collective rights. A group which wants its communal institutions and practices protected from the decisions of outsiders or their influences may claim certain collective rights to protect itself from these external forces. This may require granting tlie group some form of self-determination rights or other special rights to make up for the unfair competition it faces. However, if this group wants also to restrict tlie rights of its members to reevaluate and revise its institutions and practices, we would say that these restrictions cannot be tolerated let alone be sanctioned as collective rights, even if a majority in the group agrees to them. Taking external protection claims to be the only legitimate source of collective rights. the conflict of rights the objection above presents is largely averted. Internal restrictions, precisely because they violate individual rights, are never permissible. External protections, because they protect the conditions for the exercise of these individual rights, supplement and rarely contradict these rights. The important point to bear in mind throughout is the reason why liberals defend collective rights in the first place. Once it is clear that these rights are defensible precisely because they protect tlie preconditions for the proper exercise of individual autonomy, we can distinguish legitimate collective claims from illegitimate ones. It is true that leaders ofcommunities (and indeed of states) often claim that the internal restrictions enforced in their communities are the necessary consequences of protecting their communities against external influences.G2 For example, some groups claim that in order to protect their cultural identity from external forces, they need to restrict the use of non-national language in public (e.g., Quebec's language sign laws: the Kingdom of Bhutan's attempt at cultumlly assimilating its Nepali- speaking minority). Or to protect its religion, a group can claim that it needs to restrict the kinds of ideas 133 its children can be exposed to, andlor even disallow (and criminalizing in the case of some states) apostasy. In these cases, it is argued, the neat distinction between internal restriction and external protection breaks down. The prohibition against internal restriction is overridden by the need for external protection; or to put it differently, the need to protect the context of choice of some members of the community (from outside forces) necessitates restricting the rights of others. One might add that given the increasingly overlapping social boundaries of the modern world, external protection measures may just very well entail some forms of internal restrictions. "The enemies are already within our gates." a staunch cultural defender might say." I contend, however, that while such claims are invoked with distressing frequency, especially in the international context, they are very rarely warranted. Purportedly necessitated restrictions are often easily exposed as measures to protect corrupt regimes or community elites rather than a culture's survival. Only under quite dire circumstances could it be said, if at all, that allowing a minority to freely express their views, to question the ideas of public good in force, to revise tlieir religious convictions and so on would come to harm national survival. And it is not always established that such dire conditions obtain as to necessitate restricting the use of non-national language in public or curtailing individual democratic freedoms for the purpose of protecting society. The first response on the part of liberals then when faced by such challenges is to assess their authenticity them. But let us grant that even after sifting out illegitimate claims from legitimate ones, we may still be left with some cases in which internal restrictions of some form are necessary outcomes of external protection measures. What should we do then? I concede that under tllese circumstances, we are faced with a moral dilemma, and I shall return to this difficult question in the next chapter when 1 discuss the limits of liberal pluralism. The point to be stressed here, again, is that tllese are practical difficulties with the idea of group rights, but in themselves do not sliow the idea incoherent and indefensible. We are not forced to abandon the idea of collective rights just because they may conflict in practice with individual 134 rights. To repeat an earlier point, familiar individual rights may conflict with one another as well. To use the comulonplace esample, the right to free speech conflicts with the right to personal security under some conditions. But we do not go on to reject the idea of free speech. There is thus nothing novel a t all in the claim that rights conflict -- all rights, individual and collective, need to be balanced against one another in the real world. The challenge is to try to strike a balance behveen these conflicting claims and not to take the easy way out by rejecting one or the other outright. This chapter and the last have shown us that a global theory based on liberalism understood comprehensively is one which is supportive of the idea of peoples' rights while remaining steadfastly committed to universal individual rights. Its universal commitment to autonomy, rather than making it into a radically cosmopolitan theory, compels it to take peoples' rights seriously. It can therefore reconcile the seemingly antagonistic but endorsed norms of individual rights and national (and even sovereignty) rights in international relations. And because a comprehensive liberal global theory can consistently and coherently ground the idea of peoples' rights and defend cultural diversity, it is a theory better able than political liberalism to achieve legitimate stability. Ironically then, Rawls's reluctance to base liberalism on autonomy for fear that this will make it too sectarian deprives his liberalism of the moral basis to ground collective rights, thus making it all the more unlikely to win endorsement in our diverse world. ENDNOTES I . By internationally accepted, I simply mean that these rights have been formally endorsed in various global forums, notwithstanding the fact that there are disagreements concerning the application, content and implications of these rights, and even the rejection of these rights by some states. Assembly resolution 411128; reproduced in Crawford, p. 207. 14. Walzer, p. 518, my emphases. 15. This two-stage strategy was devised by Kymlicka in his argument for minority rights within a liberal-democratic state. Kymlicka, Liberalism. Communitv and Culture, Chaps. 8 and 9. 16. Anthony D. Smith, Nations and Nationalism in a Global Ew (Cambridge: Polity Press, 1995). p. 159. 17. See, e.g., Alasdair Maclntyre, "Is Patriotism a Virtue?", The Lindlev Lectures, Dept. of Philosophy, Univ. of Kansas (1984). pp. 5-6. 18. Yael Tamir, Liberal Nationalism (Princeton: Princeton Univ. Press, 1993), p. 66. 19. Frank Cunningham, "The CanaddQuebec Conundrum: ATrinational Perspective," Constitutional Foruln 814 (1997), Canada's Prospects Series (Special Issue), ed., Janet Ajzenstat and Caroline Bayard, 1 19- 129. 20. Interestingly, Taniir does not stress the territorial feature as a necessary criterion for nationhood which for many commentators is an essential chamcteristic. This is. perhaps, because she wants to include certain geographically dispersed or diaspora groups (like the Jews, even before the founding of the modern state of Ismel) as nations. But we can modify the territorial criterion to include groups who historically held or could potentially hold a territory or 'homeland'. 21. See Allen Buchanan, Secession: The Monlitv of Political Divorce From Fort Sumterto Lithuania and Ouebec (Boulder, Col.: Westview Press, 1991) for a pertinent discussion of this topic. 22. The examples are borrowed from David Miller, On Nationalitv (Oxford: Oxford Univ. Press. 1995). pp. 33-35. 23. Benedict Anderson, lmarined Communities, rev. ed. (London: Verso, 1991), p. 6 24. Our description of nationality meshes well then with other well accepted definitions like Miller's. For Miller, nations are communities a) constituted by shared beliefs, b) which embody a historical community, c) with an active identity, d) possessing a homeland and e) marked off from others by distinct character. Miller, p. 27. See also Conningham's discussion and his references on MS. 31-32. 25. Smith, "Liberalism and International Reform," in Traditions of International Ethics ed. Nardin, Terry and Mapel, David R. (Cambridge: Cambridge Univ. Press, 1992). p. 21 1. See also Will Kymlicka. Multicult~~ral Citizenship, Chap. 4. Kymlicka points out that "the fall of the British Empire, the rise of Cold War conflict, and the prominence of American theorists within poshvnr liberalisn~" (p. 56) together with "a real~olitik fear about international peace [after the World Wars], a commitment to racial equality, and a wony about the escalating demands of immigrant groups" (p. 68) led many contemporary liberals to conclude falsely that nationality rights are "inherently in conflict with liberal principles" (p. 68). 26. The liberal referred to specifically was Judith Sklar, one of the most renowned liberals of our time. Reported in Stanford Levinson, "Is Liberal Nationalism an Oxymoron?",&s 105 (1995): 626-645, p. 626. 27. Smith, pp. 21 1-12. 28. Tamir, p. 6. 29. Ibid., p. 85 30. Kymlicka, Multicultural Citizenshie, p. 105. 3 1. Joseph Raz, "National Self-Determination," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1995): 110-130, p. 118. 32. Tamir, p. 117. 33. Kymlicka, Multicultural Citizenshio, p. 93 34. I b i d , pp. 49-50. 35. Ibid., p. 76, my stress. 37. Kymlicka, Multicultural Citizenshio, p. 14. 38. Ibid, pp. 14-15. 39. This is not exactly precise usage of labels for nations are ethnic communities, and perhaps some non-national cultural communities need not be ethnic ones, like certain religious communities for esample. But if we bear in mind that these labels are not meant to be precise descriptions of these collectivities, but mainly to provide a conceptual distinction between nations and non-national cultural communities, there should be no misunderstanding. I follow Kymlicka's distinction between national minorities and ethnic minorities. Kymlicka, Multicdtural Citizenship, Chap. 2. 40. Ibid., pp. 26-33. He speaks of self-government rights, which are rights to have separate political institutions with varying degrees of autonomy, polyethnic rights like religious or language concessions and support, and special representation rights. Ethnic groups do not claim (and are not entitled normally)-self- government righls. 41. See Antonio Cassese, International Law in a Divided World (Oxford: Oxford Univ. Press. 1986). p. 131. 42. Alassane N'Daw, "Discussion" in Culh~ral Rielits as Human Riehts (Paris: UNESCO, 1970), p. 99. 43. To recall, this cultunl inequality is not tlie result of choices of individuals of minority groups -- in which case they ought not to be "subsidized" by granting them special rights -- but because of theinherent ineauality of the cultural marketplace, an inequality o f circumstance rather than of choice. 44. Thus the United Nations' "Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities" adopted in 1992 demands that "States shall protect the existence and the national or ethnic. cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity" (Article I). United Nations document AIRESl4711135 45. It is a familiar fact that a fifth of the world's population consumes more than four-fifths of the globe's resources and own more than 80 percent of its wealth. 46. To be sure, collective rights like entitlements to international aid and assistance are often claimed by states on behalf of their peoples. But if states receiving global assistance distribute the assistance appropriately, then there is no a reason why we should not allow states to make and administer these claims on their peoples' behalf. On the other hand, in the non-ideal situation of a state which does not allocate its aid fairly and to the regions which are most entitled to it, presumably alternative methods will have to be sought. As an example of the possibility of providing aid without consent of states, consider the rccent international humanitarian assistance rendered to the Kurds in Norther Iraq and to the different regions in the Rwanda conflict which bypassed the warring state governments of these nations. 47. Boutros Boutros-Ghali, "Discussion" in Cultural Rinhts as Human Ri$ts, pp. 100-01. As a trivial point, note that Boutros-Gliali was speaking not as United Nations Secretary-General but a s an a member of i n invited panel of academics. 48. Ibid., p. 100. 49. Ibid., p. 101 50. For one observant traveler's ground-level account of tlie extent to wliich American popular culture h a s taken hold in the Far East and beating its tradition cultures in the battle for adherents, see Pico lyer's perceptive essays in Video Nishts in Kathmandu (New York: Vintage Books, 1988). 5 1 . Ngugi wa Thiong'o, "The Language of African Literature" in Colonial Discourse and Post- Colonial Theory, ed. Williams, Patrick and Chrisman. Laura (New York: Columbia Univ. Press. 1994), p. 442. 52. Boutros-Ghali, p. 102. 53. Ibid., p. 100. 54. Thus, policies like Apartlieid could never be justified as entailed by collective rights as feared by some individualist theorists. The white minority in South Africa held 87% of tlie total land mass and controlled tlie politics and economy of the country. If anything, preferential treatment for the white minority aimed to entrench the inequality between them and otlier nationalities rather than to restore equality. See Kymlicka, Liberalism. Co~nmunitv and Culture, pp. 246-47. T i e details ofwliat counts as a "fair entitlement" are, of course, contextual --these will depend on historical circumstances, the overall wealth of tlie country, tlie trade-offs involved, among otlier things. 55. The case of tlie Himalayan Kingdom of Bhutan comes close to approximating such an exception. We will consider tliis case in the next chapter. 56. Kymlicka, Multicultural Citizenship, p. 104. As lie says: "The desire [for a cultural identity] is not necessarily a desire for cultural purity, but simply for the right to maintain one's membership in a distinct culture, and to continue developing;hat~ulture in ;lie same (impure) way that members of majority cultures are able to develop theirs." p. 105. 57. Jack Donnelly, "Human Rights, Individual Rights and Collective Rights," in Human Riclits in a Pluralist World, p. 4 7 (my stress). 58. Crawford, "Editor's Preface," in The Rielits of Peonles, p. vii 59. Cassese, p. 136. 60. Donnelly, Universal Human Rishts in Theow and Practice (Itliaca: Cornell Univ. Press, 1989). As he says, "Human rights trade-offs, except perhaps at tlie very early stages of tlie move from a 'traditional' to a 'modem' economy .... are not development imperatives. They are contingent political clloices undertaken for largely political, not technical economic, reasons" (p. 166). 61. Kymlicka, pp. 35-38. 62. We can see tlie double-effect doctrine at play here. The internal restrictions are not intended, it could be argued, because the driving motivation of these restrictions is to protect tlie community. Any resulting restrictions are just unintended side-effects, foreseeable and unavoidable as they might be. 63.1 borrow tliis expression from David Dyzenliaus. Of course tliis is not his own view. Kymlicka himself notes this difficulty Multicultural Citizenshie, pp. 42-44,20511. CHAPTER SIX THE PROBLEM OF OPPRESSIVE CULTURES We saw in the previous chapter that a liberal global order can endorse tlle rights of peoples (i.e., group- specific rights) without forfeiting its individualism. Indeed it does so-e of its individualistic commitments in that its concern for individual well-being entails a concern for the cultural context within whic11 individuals form and pursue their ideas of tlle good life. A.id granting some communities special protection in the form of group rights does not offend the liberal stipulation that political institutions treat individuals with "equal concern and respect" when it can be shown that the objective of these rights is to compensate for institutional ineaualily behveen groups. This line of argument has been put forth by liberals with regard to minority cultures within liberal states. Extending this point to the global context, 1 showed that the global economic and political institutions, historically and currently, unfairly disadvantage some national cultures, and so the idea of peoples' rights, the so-called "third generation human rights," can be understood as a strategy for compensating for this inequality in global circumstance. But we also saw (Chapters 2 , 3 and 4) that this liberal concern for culture does not extend to illiberal and nonliberal cultures. It is what cultures mean to individuals rather than cultures in themselves which makes cultural membership an important liberal good, and so cultures which contradict liberal values defeat the very reason why liberals give cultures moral weight in the first place. In other words, our reconciliation between liberal individualism and cultural pluralism succeeds only in the case of characteristically liberal cultures. There is, therefore, a potential difficulty with our reconciliation project. If we take cultural membership to be an important liberal good because it situates individual choice, andlor is itself an expression o f this choice, then would the rejection of nonliberal or oppressive cultures not undermine the 141 context of choice of some people (i.e., those who find these cultures worthy)? We have here, it would seem, a serious tension behveen our commitment to individual rights and freedom on the one hand, and our commitment to cultural diversity on the other. This difficulty posed by oppressive cultures will be the focus of the present chapter. Isolating t h e Problem To avoid obscuring the issue, our discussion shall leave behind cultural practices which are brutally oppressive or tyrannical -what 1 have referred to as illiberal cultures. These practices are rejected straightfonvardly and not open to dispute within the liberal uoint of view. By brutally oppressive practices, 1 simply mean practices which violate very basic human rights, including the right to life and pl~ysical security, the right to minimum subsistence, the right not to be enslaved, the right to a community and so forth.' As is evident, we call these practices illiberal, and hence impermissible, because oftlie kinds of rights they violate, independent of their range or the rationale for these violations. Genocide, slavery, human sacrifice, female genital mutilation, head-binding of infants, racial and gender discrimination, bride-burning, feet-binding of infant girls are some familiar examples of practices which will not be condoned by liberals &f these- defended on cultl~ral grounds. This Ilolds even when, in the most unlikely of cases, the rejection of suc11 practices implies the demise o f a n entire cultural way of life. Liberals do not pretend that liberalism is compatible with all ways of life or group preferences; on the contrary, they readily admit that "that there is no social world without loss." So practices which blatantly violate the basic rights of persons will be unequivocolly rejected by liberals universally, regardless of their (purported) underlying cultural claims. Of course different liberals, say. a Kantian and a Millian, would offer different reasons why the basic rights cited above are inviolable, but for our present purposes we may remain agnostic over these fundamental philosophical starting points. Hence political liberals like John Rawls, and comrnunitarian-liberals like Michael Walzer, both of 142 whom 1 argued have erred too much on the side oftoleration. nonetheless explicitly reject tyrannical societies or unreasonable comprehensive doctrines (Rawls) or societies engaged in "extreme forms of oppression" (Walzer). For Rawls, these illiberal practices are incompatible with, and indeed pose a direct threat to, any liberal political order, whether in the domestic or global sphere, and hence must be forced to change or be contained. For Walzer, "we can always assume that murder, slavery, and mass expulsion are condemned, at least by their victims.'" So because all liberals, including those whom 1 am contesting. are in agreement about illiberal cases, we can safely leave these to one side and confine our discussion to the grey-area where dispute lies. This grey area involves cultural practices which 1 have called nonliberal. To recap, nonliberal groups do not violate any basic rights. In addition to the basic rights cited above, they also respect the right of exit, a restricted right of dissent, and limited freedom of conscience. But nonliberal groups do not affirm other quintessentially liberal-democratic rights like the right to free speech and association, equal right of dissent, equal liberty of conscience and so on. Examples of nonliberal associations in the domestic context would include religious groups which discourage esposure to secular ideas or other religions, and minority cultures which oppose gender equality. In the international case, we have polities which restrict the political rights of some of their own citizens (e.g., women in some Muslim and Asian countries), which disallow free speech and association, which limit the right of dissent and political opposition, and which restrict religious liberty.) Some liberals deny that these less-than-basic (liberal) rights have universal validity, and hence are ofthe view that these cannot be reasonably expected of all cultural groups. Recall that in his domestic theory, Rawls takes certain nonliberal philosophical, moral or religious conlprehensive doctrines to be "reasonable" so long as they endorse liberalism in the political context (i.e., so long as they do not pose a challenge to liberalism in the political contest), and must therefore be tolerated by the liberal state as a matter of principle and not just for pragmatic concerns? In extending this idea to the global context, 143 Rawls believes tliat societies which are organized around reasonable comprehensive views (the well- ordered liierarcliical societies) must be similarly tolerated even if their basic structures are characteristically nonliberal? Walzer likewise accepts these nonliberal societies as "historic communities", whose right to political cultures of their own ought to be respected by outsiders.' I shall not repeat the liberal arguments offered on behalf of nonliberal cultures or societies nor my counter that a sincere liberal commitment to individual liberty entails the rejection ofthese nonliberal cultural groups, be they polities or minority cultures within a state. It suffices to recall my position that the limits of liberal toleration do not extend to nonliberal cultures or societies (Chapters 2.3.4). But 1 also pointed out tliat liberalism should be concerned with protecting cultures on the grounds that cultural membership provides the context for the exercise of individuai autonomy and/or is itself an expression ofthis autonomy (Chapters 3 and 5). There is therefore a potential difficulty with the liberal view I am advancing. As Joseph Raz acknowledges, "Given that even oppressive cultures can give people quite a lot, it follows that one sliould be particularly wary of organized campaigns of assimilation and discrimination against ... oppressive cultures. For many of their members they provide them with all that they can have, as it may be too late for them to make a transition.'" In other words, if we accept that culture is choice-enabling, that it grounds tlie autonomy of persons i n n fundamental way, then would reforming nonliberal cultures (in favour of tliose who find their current culture oppressive) not undermine the autonomy of some (namely, tliose who find membership in this culture choice-enabling)? This problem appears especially daunting a s what we face here is a conflict between different claims to autonomy, between those whose autonomy requires reforming the culture and those whose autonomy depends on preserving that culture. This conflict could also be redescribed as a clasli of tlie rights of different individuals -- the right of some to dissent from their cultural ways versus the right of others to preserve these ways -- although a s a convenient short hand. I shall frequently refer to this as a conflict between individual rights and culture (or behveen individual and group rights). There appears thus to be a serious tension within the liberal view I am defending which needs to be confronted. Protecting Cultures and Individuals: Having it both ways The above challenge assumes that a dual commitment to both individual rights and culture lies in a certain tension, that when faced with nonlibenl cultures, there is no possibility o f fulfilling both commitments. However, I believe this value conflict to be for the most part avoidable. One reason why I think this to be the case, a reason to which I alluded in an earlier chapter, but shall develop more fully now, is that most cultures can be reformed or "liberalised" without actually being destroyed. In other words, few cultures are irremediably nonliberal in the sense tliat liberalising them entails changing their very cultural identities; or, if we like, few cultures are inherently nonliberal such tliat their defining institutions and practices are nonliberal.8 If this observation is right, reforming nonliberal cultures (in favour of some) need not necessarily diminish the worth of these cultures (for others)? To accept this proposition, we need only accept the rather modest premise that few cultures are entirely nonliberal, or even entirely liberal for that matter. Instead, more precisely, 'liberality' is largely a matter of degree rather than an all-or-nothing affair -- some cultures exhibit more nonliberal cultuml &than others, and vice-versa -- and, consequently, most cultures will have liberal elements in some of their practice^.'^ This claim is especially defensible, particularly after we factor out illiberal cultures which tend to have little space for even a modicum of liberty. Nonliberal cultures, as we have noted, respect basic liberal rights and so must by definition honour some rights and freedom and exhibit some degree of liberty. (Labelling some cultures as liberal or nonliberal is quite a misnomer then. More accurately, a culture i s m or& 'liberal' than another if it has more or fewer liberal practices than the other, but with this point securely in mind, I continue to use these labels as useful approsimations). It follows, therefore, that reforming a culture is a necessarily a zero-sum scenario wherein one group of claimants has to lose out. We can reform certain aspects of a culture, namely its nonliberal practices. 143 without eliniinating others. Indeed we should see how much of a culture's own potential (by appealing to its liberal aspects) we can draw on and expand when advocating changes. That the nonliberal practices of a culture is distinct from a culture's identity and can be reformed or even eradicated without significantly altering the latter is confirmed by numerous well-known historical examples. Just to cite hvo, ending feet-binding in China or widow-burning in India did not in any significant way alter Chinese or Hindu cultural identities. These aresnecific cultural practices which do not by themselves distinguish Chinese and Hindu culture from others, and so discontinuing them did not undermine the basic cultural institutions of these societies. Likewise, reforming nonliberal political institutions thought to be culturally derived in countries like Japan, Thailand and Nepal (from monarchy to constitutional monarchy -- or rather constitutional Theocracy given the religious status o f monarchs in some o f these countries) did not result in the destruction of a distinctly Japanese, Thai or Nepalese (national) identity even as the political organization of each country was dramatically altered. More so than other institutions, it seems that the political constitution of a nation can be reorganised without jeopardizing the basic cultural institutions and practices contributing to that nation's identity. The following reflection by the present spiritual and political leader of the Tibetan nation, the Dalai Lama XIV, on his own political office illustrates this point vividly: "The institution of the Dalai Lama is something different from the Tibetan nation. The Tibetan nation is always there. The institution of the Dnlai Lama may or may not continue -- that depends on the value [of that institution]. If it is of value to our nation, then the next Dnlni Lama will come [i.e., be reincarnated] as a beautiful little child. If it is not of value, then it is better to stop it."" The importance of distinguishing specific cultural practices from a cultural world view itself has bee11 stressed by numerous philosophers, Hilary Putnam among them. According to Putnam, it is this confusion between cultural practices and culture a s a whole which drives ethical relativism, and which also renders it indefensible. The relativist assumes that just because we are in no position to question 146 world views different from ours, the idea tliat there are universal and objective moral standards is therefore untenable. But as Putnam tells us, there is no reason to take an all-or-nothing stance with regard to culture. We may be in no position to question a cultural way of life, but that is very different from questioning its specific practices. Indeed, tliis applies not just to 'distant' ways of life but to our very own as well. "'Is our way of life right or wrong?' is a silly question, altl~ougli it isn't silly to ask if tliis or tliat particular feature of our life is right or wrong .... [Rleal questions require a context and a point."'2 As a practice then, when faced with a so-called nonlibenl culture, liberals should train their objections against its snecific nonliberal practices and avoid condemning the culture as a whole with a broad brush. Moreover, as we saw earlier, criticism does not preclude recognising and supporting positive aspects in other areas oftliat culture by way of institutionalised group-specific rights (Chapters 3 and 5 ) . Thus focusing and balancing our criticisms, we can hope to defend individual rights without undermining a culture's overall worth and the context of choice it can provide for its adherents. But, very importantly also, focused and balanced criticisms will be seen as more sincere and well-meaning from the point of view of the groups being judged and hence more constructive. This is an especially important point to bear in mind when advancing liberal ideals globally. We shall return to this point in Chapter 8. The above discussion suggests tliat what sets off one culture from another is not one fixed and particular set of traits but varying sets of evolving, fluid and negotiable features. This conception of a culture's identity as social and temporal may not sit well with those who prefer a precise and fixed definition of culture, but it is neve#lieless a more accurate conception of a culture. As David Mdler says, "National identities are not cast in stoue. ... [L'lliey are above all "imagined" identities. wllere the content of the imagining-s with time. So although at any moment there will be something substantial that we call our national identity, and we will acknowledge customs and institutions that correspond to this, there is no good reason to regard this as authoritative in the sense that excludes critical assess~nent."'~ Miller's understanding of cultural identity is rcadily confirmed. A recent survey on ethnic identity 147 conducted in Britain found that "groups had quite different conceptions ofthe kind of group identity that was important to them." It showed, for example, "that religion was prominent in the self-description of South Asians, and skin-colour in the self-descriptions of Caribbeans."" In Canada, what distinguished Quebec from Anglo-Canada prior to the Quiet Revolution included religion. a deep ethnic affiliation, and its more agrarian values in addition to language. Today, it is mainly language which sets Quebec apart from Anglo-Canada. In other nationalities, perhaps religion rather than language now serves as the defining feature (e.g., Muslims in India); yet in others, a sense of common history or geographical affiliation could count as what is important (as perhaps in the case of Aboriginal groups in N. America). It follows that it is ultimately members of a cultural co~nmunity who are to determine how the community's practices could be reformed without compromising its cultural identity. As liberals often remind us, the aim is not to sustain cultures as static and rigidly bound entities but to ensure that any change in a given culture is not forcibly imposed (from without) but is instigated by members of the culture themselves. Consequently, the more individual participation evident in the fonnation and evolution o f a culture, the more confident we can be that changes are not changes that will undermine the given cultural context of choice but are changes freely assented to and so are choice-enabling rather than choice-restricting. Frank Cunningham thus defends democratic freedoms for this reason, that "progress in democracy in a coinmunily can lead to a critique of some aspects of its traditions without being destructive of the c o m m ~ n i t y . " ' ~ Similarly Bhikhu Parekh writes that "ethnic communities do, ofcourse, run the risk of becoming internally oppressive and reactionary, but that requires their constantinremnl self-regeneration, not extinction."" Thus democratic freedom not only defends a culture from outside incursions, but also insures that there is option for growth and reform from witIiin."Not surprisingly, even Miller, who favours a communitarhn view of national self-determination, takes individual freedom as the litmus test for the legitimacy of any self-determination claim: No voice has a privileged status: those wha seek to defend traditional interpretations enter the conversation on an equal footing with those who want to propose changes .... From this perspective ... liberal freedoms play a vital role in providing the conditions under whicli the conversation can continue. Without freedom of conscience and expression, one cannot explore different interpretations of national identity, something that takes place not only in political forums, but in a various association that make up civil society .... These discussions must proceed on the basis that no one sliould be penalized or excluded for expressing views that challenge the traditional understanding of national symbols and historic events .... [O]n this issue o f basic freedoms there will certainly be convergence [between the principles of nationalism and liberalism]." The importance of democratic individual freedoms within cultural communities underscores tile comprehensive liberal stipulation that restricting the liberty of persons to question and revise the practices of their own culture is, as a general rule, impermissible. The liberal view 1 am proposing reiterates this modest proposition. As an aside, we should remember that not imposing change from without does not mean that liberals should stand idly by a s spectators in the face of nonliberal cultural practices. They may be called on to support and encourage reform within these communities. But the motivation for change must be internal and outside involvement must aim primarily to realise the aspirations of oppressed individual (Chapters 2, 3). We see now how one could hold that cultures are to be liberal and give cultural diversity its due. In rejecting nonliberal cultures, we are more accurately rejecting their nonliberal practices, and, as I said, we can hope to 'liberalise' these practices without obliterating the cultures' identities. The limits of pluralism do not extend to nonliberal cultural m, but this is very different from saying that they do not extend to these cultural as such. "Nonliberal" Cultures: Two Cases In response to my attempt at circumventing the tension between protecting rights and culture, it could be argued that there are some prominent and widely adhered to cultural ways of life which are irremediably or inherently nonliberal and so we may not 'liberalise' tliese cultures witllout&o destroying the cultural 149 preconditions of choice for a large number o f people. But as I mentioned in the last chapter, when confronted by claims of this sort, liberals must first of all assess their authenticity. And 1 suzgested there that upon close examination, most of them are found wanting. Here, let me support my point more fully by examining two well-known cases. A) Asian Values T o start, we mentioned earlier that few countries represent one particular cultuml way of life, and so the idea that restrictions on individual liberty within a country are justifiable on cultural grounds, a view so commonly put fonvard in international forums, is often derailed from the outset. But to fully entertain the above challenge, let us accept that some states are indeed co-extensive with certain cultural types. The often cited Asian-Values argument is perl~aps an example of an argument with some degree o f cultural or at least 'civilizational' plausibility. We may, following Samuel P. Huntington, regard a "civilization [as] a cultural enti ty.... Civilization and culture both refer to the overall way of life of a people. and a civilization is a culture writ large. They both involve the 'values, norms, institutions, and modes o f thinking to which successive generations in a given society have attached primary importance."' For Huntington, Confucianism, or what he now calls 'Sinic' Civilization, is an example of a broad encompsssing cultural worldview, and it is this worldview many East Asian leaders have in mind when they oppose liberalism on culturnl grounds." Proponents ofthis position claim that liberal ideals like tlie freedom of espression and association, equality between the sexes and the equal right to dissent are values foreign and even hostile to their (Confucian) cultural tradition." Moreover, they point out that tlie recent economic successes of their countries are the result o f these very values and hence all the more reason to preserve them.'' One defender of this view, Bilahari Kim Hee P.S. Kausikan, writes: "In talking about Asian values, [their proponents] are often only examining issues such as the responsibility of individuals to society, tlie role of 150 the family and the maintenance of law and order."' But because, so Kausikan believes, liberalism relegates these social issues to the background by stressing individualistic values, it is a political morality which is inapplicable and unacceptable in the Asian context. But this cultural rejection of liberalism does not bear any close scrutiny. First of all, its asserted incompatibility with liberalism is based on a serious misinterpretation of liberal morality. Kausikan's critique overlooks the fact that individual responsibility, the family and law and order are vital liberal concerns as well. For instance, the liberal conception of individual rights makes sense only if it presupposes that other individuals have some sort of responsibilities corresponding to these rights?' And as we saw in earlier Chapters, liberals have pointed out that the commitment to individual freedom takes for granted a social context within which individual choices acquire their meaning and worth. So Kausikan's claim that the "exaggeration of liberal values and individual rights, devaluing the notion of [social] 'values,' has led to serious problems'" seems to me to be at most a criticism (and perhaps a well- taken one at that) against nominally liberal societies for failing to live up to liberal demands and not a criticism of liberal theory itself. The fundamental mistake underlying Kausikan's objection, a mistake commonly made, is the confusing o f liberal individualism with eeotisln understood commonsensically as selfishness or self- centeredness. Thus nlisunderstood, individualism is an unattractive aspiration, encouraging the privileging of one's narrow self-interests over the interests of others in society. Witl-wt doubt. a political morality premised on this view of human nature andlor which encourages and engenders this nature is highly undesirable for all societies, let alone those which take collective goals and responsibilities seriously. But individualism as a liberal ideal commends quite a different account of individual aspiration. Liberal individualism is the view, firstly, that the individual is the ultimate unit of moral concern in that very uncontentious sense that persons are what rnaner ultimately, a s opposed to some abstract entity like the collective or society. More significantly, it is also individualistic in that it holds individuals to be 151 capable of evaluating and revising their socially conceived ends in life, and a s having the highest-order interest to do so. And nothing about thus conceiving individualism entails selfishness, self-centeredness, atomistic individualism, unresponsiveness to the needs of others or that one lives an aimless, discontinuous and disjointed life. And it certainly does not entail the beliefthat an individual may do as she wishes; nor does this understanding of individualism preclude the idea that individuals must have abiding communal ties and commitments, that they have important responsibilities to their society and other individuals, and that justice may require certain sacrifices on their parts Thus, once one is alert to the difference between the individualism of liberalism and egotism (or excessive individualism as some commentators put it) often mistakenly associated with liberalism. it will be clear that a rejection of liberal individualism does not follow from a rejection of egotism. Objecting to excessive individualism or egotism can be a sound critique of liberalism only if it can be shown that liberal individualism when put into practice invariably breeds egotism. And, to be fair to libeml critics, it is unfortunately true that egotism is on the rise in many libeml countries, in no small measure due to laissez-faire capitalist practices in these societies. But, again, we must be careful not to mistakenly treat avoidable practical failures within liberal societies as evidence against liberal tl~eory.~" Admittedly, this misunderstanding of liberal individualism as egotism has been urged on in part by how some liberals have conceived the liberal project. Their view of liberalism is largely due to the Hobbesian account of society as a mutual benefit arrangement, a modus vivendi permitting selfish and rational competitive individuals to m a ~ i m i s e their own enlightened self-interests. Even though few liberals today hold this conception of liberalism, the libeml project is often wrongly associated with this Iiobbesian vision, lience motivating this wrong-headed criticism of liberalism. But a rejection of one (mistaken) interpretation of liberalism is not itself a refutation of liberalism. Contrary to the concerns of "communitarian" societies then, the rule of law, order, individual social responsibility, the family and social values are all important liberal interests. Now, there may be 152 disagreement between liberals and nonliberals over& these interests can be legitimately realised, but tliis is quite different from saying liberals do not care about tliese social issues. Here one may reply that such cultural disputes over how to realise tliese co~nmunal goods are fundamentally unresolvable because liberalism is unique in taking the individual to be the ultimate unit of moral concern. Since nonliberal societies do not similarly regard the individual, tliey are more willing to sacrifice tlie rights of individuals for the sake of the community. But here is where the opposition to liberal individualism beconies obfuscated. Is this objection suggesting that a society or comniunity is entitled to some moral worth independent of the individuals which comprise it? If so, tlie burden of substantiating tliis metaphysical (and highly speculative) claim about the ontological status of groups is weighty enough to collapse the objection. " If the objection does not hinge on some untenable ontological view of groups, then all it can be suggesting is that the riglits of t h e m ouhveigh the rights of thefew. But in tliis case, the debate is no longer a debate between individualists and anti-individualists, but between different ideas on how to weigh individual rights, a debate firmly situated within an individualistic framework. It could be retorted here that Asian societies have been forced into tliis individualist moral framework (tlie history of western conquest and colonialis~n being the main reason), tliat individualism is conceptually alien to the Confucian worldview. But many scholars are now arguing that tlie inlierent anti- individualism so commo~ily associated with Confucianism is a misconception, or at best a one-sided interpretation, of the tradition. On tlie contrary, tliey point out tliat the idea of individual riglits and freedom is latent, albeit in a nascent form, in Confucian tliouglit. According to Julia Cliing, the seeds of individual freedom and democracy were already sowed in ancient China. "[Tllie belief in human perfectibility, a cornerstone of Confucian pliilosopliy, implied a belicf in personal freedom." Tliougli "tliis was more an interior, spiritual freedom to improve one's own moral cliaracter ... [and] tlie conception of freedom as a right ... was never clearly articulated until modern times, and then under Western influence" 153 it strongly indicates nonetheless "that traditional Chinese culture contains 'seeds' for concepts like ... democracy which have come more directly from the W e ~ t . " ~ ' Some East Asian leaders openly endorse this more liberal interpretation of Confucianism. Most notably, President Lee Teng-hui of Taiwan refers to the latent individualism in Chinese culture, citing ancient Chinese scholars including Mencius and Confucius for support, to explain and justify the peaceful political democmtisation ongoing in Taiwan over the past decade. He says, "Although [ideals o f individualism] appeared early in the political activities of our Chinese forebears, the subsequent formation o f feudalistic thinking unfortunately cut short the development of this kind of thought. Nevertheless, over many thousands of years of Chinese history these ideals have never disappeared; they have always been goals constantly pursued by the Chinese p e ~ p l e . " ' ~ My point here is not tliat this liberal interpretation of Confucianism is conclusive; rather I meant only to show tliat the tradition (particularly concerning its receptiveness of individualistic ideals) is open to competing interpretations, which should give us pause before accepting uncritically any one interpretation over a n ~ t l i e r ? ~ Indeed it may be well worth asking why one particular version is invoked and enforced rather than another. This has prompted some critics and observers to suspect the repressive interpretation of Asian Values currently in force to be "very much a political construction" rather than a popular expression of a cultural view?' "If Asian values are used to deny human or civil and political rights, such denial does not reflect cultural values, but a selective practice of political pliil~sophy."~' We cannot with confidence accept that a set of "values" in force in a society are truly assented to cultural values when there is no avenue for persons to voice their assent to or dissent from these values. If a politically enforced 'cultural view' quells internal dissension witliin a community, its claim that it is representative of that community's culture is immediately called into doubt. Thus Annette Marfording warns that "[aln advocacy of cultural relativism, in general terms, may fail to take into account the pervasive role political and social power structures can play in determining 154 'cultural' values, and in imposing those values on the population.'" She says that "cultural relativism is not a valid proposition if political and social power structures artiticially construct 'culture'. If cultural values are not freely determined by the respective population, but rather by these power structures, cultural relativism gives credence to cultural i&&gy rather than to culture, and thereby opens the door to state oppre~sion."'~ In her study of contemporary Japan, Marfording suggests that the "argument that the limited human rights consciousness in Japan is due to 'psychological imperatives of Japanese values' discounts the influence of government education policies". She writes: "the Japanese power elite has a long tradition of regulating cultural ideology and of manipulating it to the elite's advantage. Subordination of women, limited individual autonomy and rights consciousness, marginalization of protesting voices, domestic stability, and ... economic success are the rewards of such regulation and manipulation."" Liberals sensitive to culture must not, therefore, take all cultural claims at face value but ought to determine whether these are truly culturally-based claims or whether they are ideologically and politically "constructed" ones. Hence we can doubt, in the case of an oppressive society, whether that which is put forth as a cultural view is indeed genuine and not merely a 'political construct' imposed by a dominant class. How else should we react when a large segment of a population is prevented from participating in the formation and preservation oftheir own cultural identity in a variety of ways? It is plain that those who insist on the inherently nonlibeml nature oftheir culture shoulder the burden of proof of showing that very claim has a cultural basis, that it is not just a claim endorsed and enforced by a select few. To generalise our above discussion: the proposition that a given culture is irremediably nonliberd is difficult to maintain -- this point ties in with our earlier observation that what is sought is not an ossified and impermeable cultural identity but one which is evolving and open to changes. This would bar attempts by the elites of society to entrench and enforce a particular conception of their national culture. A true living and growing culture requires the participation and contribution o f its individual members; it 155 is through tlie contributions of individual members of the culture that it is able to "regenerate itself' (to use Parekh's words). That some cultural groups silence a segment of their members throws doubt straightaway on whether they meet the basic criterion for cultural legitimacy in the first place. Here one may object that insisting that communities or societies be open to individual freedom to some degree before we accept their purported cultural claims as legitimate is culturally biased, that we are here being insensitive to different cultural ways of organising political society. But my above argument is that there is no other way of ascertaining the legitimacy of these claims. The onus falls bv default on those who hold that their oppressive political institutions are justified on cultural grounds, that their cultures inher-ntly have no space for, say, free speech or expression. They must convince us that these restrictions are culturally sanctioned in spite of the silencing of some members." B) Islam and Gender Let me briefly survey another case wherein nonliberal practices are thought to be integral to a cultural or civilizational view. It is commonly believed that certain restrictions against women in lslaniic societies are justified on religious grounds, and so one could argue that in so far as liberalism takes the freedom of religion seriously (barring of course violations of basic rights as said earlier), it will be difficult to reconcile this with it., commitment to gender equality?' Here, again, our respect for individual rights seems to clash with our rc~pect for cultural diversity -- to demand reform will erode a religious (or civilizational) context of choice for many, whereas respecting this context of choice surrenders tlie freedom of some individuals (namely, women in this case). But as with the first case study, it seems here that existing practices within a culture have been mistaken for practices necessarilv rewired by that culture. Many Islamic scholars have rejected the belief that Islam endorses and requires tlie subjugation of women ar.d other nonliberal practices. They argue that tliese restrictions while often carried out in the name of Islam are in truth due more to a 'politicised' 156 interpretation of Islam. Muslim feminists in pre-dominantly Muslim countries like Malaysia are challenging not so much Islam as a cultural worldview in their tight for greater equality, but the traditional male interpretation and enforcement of the Koran. "We find no contradiction in our desire to be modern women and to be good Muslims as well," one feminist puts it?' The point being pushed here is that current practices in many Islamic societies can be reformed without contradicting and dismantling the lslamic worldview. As one scholar tells us, "lslam teaches principles of freedom, human dignity, equality, governance by contract, popular sovereignly, and the rule of law that are compatible with but not identical to the cognate principles that belonged to the heritage of liberal democracy. A look at history suggests that the main obstacle facing Muslims in their attempts to achieve open political systems and democratic governments are I ) a deeply rooted authoritarian political culture and 2) manipulation of the Koran."" There are in fact a number of Islamic states which do not sanction many o f t h e restrictions against women enforced in other lslamic states. The Prime Minister of Malaysia, no supporter of individual freedom himself, recently urged that lslamic law not be taken out of its historical and social contests, but tbat it should "move with the times. Practices which were outlawed by religion in the old days, but are not relevant today [sic], need not be enf~rced."'~ We have recently witnessed legal cases in which the lslamic tmdition itselfwas appealed to in order to justify (liberal) reforms in some Muslim countries. For instance, arranged marriages of girls, which used to be permitted in Morocco under the prescription of an eighth-century lslamic jurist, was overturned in 1993 by adopting the opinion of another eight-centnry lslamic jurist who had argued that the traditions of the Prophet require a woman's consent in marriage. Practices stereo-typically taken as integral to lslam are also open to rejection within the lslamic tmdition itself. Polygamy commonly considered a sanctioned Muslim practice has been challenged on the basis that it violates basic lslamic principles. "lslam allows a man to take four wives. but he nlust treat them equally; some Islamic scholars and politicians argue that since this is impossible [in practice], polygamy should be ban~ied."~' 157 Against the objection that the above 'liberal' interpretation of Islam is a reading imposed by the colonising West, we can turn the table and argue that it is the contention that certain cultural ways are inherently nonliberal which is the colonising imposition. As Leila Ahmad persuasively argues, "The idea that Other men, men in colonized societies or societies beyond the borders ofthe civilized West, oppressed women was ... used, in the rhetoric of colonialism, to render morally justifiable its project of undermining or eradicating the cultures of colonized peoples." In other words, if Islam is interpreted to be intrinsically nonliberal, then only if Islam itself is "cast off could Muslim societies begin to move forward on the path o f civilization" and its women be liberated!' A sensitive and charitable interpretation of cultural oppression thus should require that we see such oppression as a curable aspect of a culture rather thau to treat it as a sign that the culture is inherently oppressive and hence to be eradicated in in the name o f individual liberty. Our case studies show us the general strategy to adopt when confronted by so-called nonliberal cultures. But the main lesson to be drawn here is t h a :::I examdes of irremediably nonliberal cultures are harder to come by than my critic might think. Consequently, the potential tension between rights and culture is less grave in practice than when considered in the abstract. Of course, I do not deny that there could be, in principle at the very least, genuinely nonliberal cultures. When such l~ard cases do arise, we may be forced to make tile difficult choice of letting a culture pass on, and try to accommodate its adherents in other ways. Remember, again, that our concern for culture stems ultiniately from what it means for individual autonomy; so as long as restrictions against individuals are apermonent feature (if this is indeed so) of a cultural way of life, we will have to concede tliat this culture will be one of those unavoidable losses of our social world. I underline 'pernianent' though because our normative view may be different if certain restrictions are required as a temporary measure for the purpose of protecting a culture, and we shall turn to these kinds of cases below. But with respect to the challenge posed by irremediably nonliberal cultures, our trump remains that these cases are exceptions rather than the rule. Individual Restriction and Cultural Protection We made much o f t h e distinction between internal restriction and external protection in the previous ~Iiapter.~' We argued that while liberals should reject internal restrictions (against the rights of members of a cultural community), they should accept protective measures on behalf of a culture against external threats. Tliis distinction was useful in defining the limits of liberal pluralism: cultural differences can be accepted and supported by special rights up to the point where these involve internally restricting individual liberty. But it is sometimes said that certain internal restrictions are necessitated by the need for external protection, as wlien leaders of a cultural comniunity think it necessary to ban tlie use of alien languages or wlien they think it necessary to restrict their members' exposure to competing cultural ideals in order to protect its cultural identity against the influence of more dominant cultures. This is not a case of an irremediably noilliberal culture as such (e.g., the sorts of cases we studied above) but a case in which a group is forced to engaged in oppressive practicesjust to ensure its cultural survival. But wllile this reason for restrictions is slightly different from the one offered above, the tension we face is familiar, namely that between protecting individual riglits and protecting culture. But as before, tlie burden o f proof ought to lie with tliose wlio wish to impose restrictions on individuals within their group. Tliis means they must demonstrate that cultuml disintegration is both a real threat and requires the specific restrictions sought to be averted. It also requires showing tliat imposition of the restrictions would not be unduly oppressive to minorities directly affected or undermine the value of cultural survival for the majority in tlie long run, for instance by breeding pervasive discriminatory and intolerant attitudes. Tliis allocatioii of the burden of proof is not arbitrary as, to repeat, the reason why we are concerned witli culture in the first place is because of its worth to individuals. In other words, wlien individual riglits conflict witli cultural riglits, we can say tliat tlie individual riglits are "presumptive" trumps. They are "presumntive" because the onus is on tliose who want to restrict them to provide tlie justification; but because they are & "presumptive", one is open to the possibility that such justifications could be forthcoming. Viewing the matter this way shifts the debate from abstract moral principles to estimations of actual possibilities and consequences. For example, in the case of Quebec, a fruitful question to ask is wlietlier granting Quebec special powers short of separate statehood (tlie "asymmetrical federalist option") might suffice to meet just demands for preservation of its franco-language and culture. Perhaps there is room for debate over whether, say, obliging children from the allophone conlmunities to attend French language public schools is unduly oppressive oftliem. It could be argued in this case that tlie rights of persons to attend public schools in tlie language of their choice is justifiably overruled by cultural considemtions. But there is little room for serious debate over whether it is justified to prohibit the appearance of Chinese characters on signs over Chinese stores and restaurants, as the Quebec Government itself realized when it backed down on tliis rule. This restriction could not be justified even on cultural grounds (it is unduly oppressive and not necessary for the protection of Quebec culture) and hence the "presuniptive" trump of individual rights holds in tliis case. To pursue and illustrate the above point, let me consider two global cases, one general and the other quite specific, where internal restrictions are (supposedly) defended in tlie name of external protection. The first is the commonly heard general argument that democracy must be suspended in underdeveloped countries for tlie purpose of economic development and sustenance. Political dissent, multi-party politics, tlie right to organise and hold strikes, minimum wage and other labour laws, will destabilise the economy and discourage badly needed foreign investment, it is said, and hence tlie need to restrict these freedoms and riglits. Now, while this argument is not traditionally presented as a cultural argument, it can easily be given a cultural component. Its defenders have said that economic growth is essential for promoting collective interests and social stability which are highly valued goals, more so than individualistic ones, in some cu1tures.J" Also, it could be added that a society stands a chance of protecting and supporting its cultural way of life if it also lias a strong and stable economy. However, the general thesis that democracy is incompatible with economic growth has been amply discredited by many philosophers and economists, and 1 shall not telabour this point? Indeed. the contrary lias been argued, for example by Jean Dreze and Amartya Sen in their r5mparative study o f China and India, that democratic institutions are better able to avert economic mismanagement in general and large scale famine in particular, "that political pluralism can play [a positive role] in the eradication of hunger and deprivation. The contribution of political pluralism relates to the importance of adversarial politics and social criticism in influencing state action in the direction of greater sensitivity to tlie well- being of tlie pop~lation."'~ At any rate, even if it can be demonstrated that a trade-off is necessitated by a country's dire economic or otlier circumstance, this provides, a t best, a short-term justification for curtailing rights. As the communitarian Daniel A. Bell concedes, "Once the economic or political troubles are more or less successfully overcome, then according to the government's own logic the denial of rights is no longer justified."" Accordingly, countries which have attained a certain level o f development cannot continue to restrict democracy in the name of development. Internal restrictions for the purpose of insuring esternal protections are justifiable, if at all, only as long as the relevant conditions (i.e., esternal threats) prevail!' The specific and more cliallenging case I have in mind takes us to the remote Himalayan Buddliist Kingdom of Bhutan. Tlie Bhutanese state protests that its national culture is being threatened by Iarge- scale (illegal) migration of Hindu Nepali-speakers from the overpopulated plains ofNepal into the foothills of Bhutan, wliicli has over the past decade reduced the Bliutanese to a "fast-dwindling majority that is now about 60%" in their own ~ountry."'~ Tlie Bhutanese government's fear of cultural annihilation is not overstated. In neiglibouring Sikkim, a sister Buddllist Kingdom,Nepali immigrants became a majority and in 1975 overthrew the Sikkimese monarcl~y and voted to be incorporated into India. Otller former Himalayan kingdoms, most notably Tibet and Ladakli, have not fared very well either. having 161 being annexed by China and India r e s p e c t i ~ e l y . ~ ~ As King Jigme Singye Wangcliuck lamented, Bhutan is "really the last bastion of Himalayan Buddhi~m."~' One protective strategy the Bhutanese state has adopted is the (nearly-complete though not successfully enforced) closure o f its borders both to prospective immigrants and even short-term visitors."' While this may deprive immigrants from a poorer country (who see Bhutan as a relatively prosperous country) the opportunity for bettering tlieir lives:' and possibly contradict the idea of freedom of movement, 1 grant that this ban on immigration is arguably a just means of external protection? But the Bhutanese state has also, more contentiously, imposed certain restrictions on its residents, including limiting foreign and local media, restricting dissent, requiring by law that all residents (including non-ethnic Bliutanese) dress and wear their hair in the traditional Bhutanese fashion, requiring that private and public buildings conform to Bhutanese architectural styles, requiring all residents to swear allegiance to the King (which carries a strong religious overtone), and banning the use of other ethnic languages in schools and discouraging their use el~ewliere.~' As the Himalayan scliolar A.C. Sinha reports, "The Bhutanese reasoned with reality and found that their only chance to keep the southern Bhutan in effective control is through an aggressive policy of cultural assimiiation of the Nepalese.'"'ln defence o f these internal restrictions, the Bhutanese Foreign Minister was quoted as follows: "If we were spotted owls, the world would care about us. Can't you see tliat we're an endangered species, tooY5' A more detailed study on the ground may suggest otlienvise, but taking the case a s presented, most of the cited internal restrictions are hard to justify. In my view, it is liighly improbable tliat regulations concerning manner of dress or how one does one's hair serve any end towards preserving a cultural identity in any meaningful sense; yet these are rather intrusive measures against personal choice. Not providing public funds for minority languages is one thing; discouraging or even banning their use is quite another. Restricting further immigration may be warranted but this is quite different from limiting ideas and information from outside. We need more conclusive and definitive evidence tliat the Bhutanese 162 culture stands to decay if it does not forcibly assimilate its minorities (and exact conformity from dissenting Bhutanese) before we can approve of these restrictions. It is reasonable to hold that continued migration will pose anexternal threat to Bhutan's national identity, but less so with regard to individual freedoms in manner of dress and the like* Bhutan. Absent an argument to the contrary, t!ie reason why we are ready to allow Bhutan to close its borders, namely for the sake of protecting its cultural identity, is reason also why Bhutan should not impose its national culture on minority cultures already residing in the country. If membership in their own cultural community is an important good for the Bhutanese, it too must be, to be consistent, an important good for the Nepalese minority. To suggest that the Nepali-Hindu culture will survive outside Bhutan is no consolation at all to the very individual immigrants already within Bhutan being deprived of their own culture. Hard Cases a n d T h e Limits of Ideal Theory But let us for the sake of discussion accept that certain restrictions are necessary for protecting the Bhutanese national culture, a moral dilemma which may in reality arise if the Bhutanese effort to curb illegal immigration remains unsuccessful?8 Under this scenario, we can plausibly suppose that the external threat against Bhutanese culture persists and that the only available counter against this is to aggressively assimilate all (both legal and illegal) immigrants. In this less than ideal situation (i.e.. a situation of non-conipliance and unfavourable condition), it is plausible that coming to the defence o f individuals whose liberties are restricted by Bhutan's assimilationist campaign will compromise the cultural context of choice for the Bhutanese, while permitting forcible assimilation will undermine individual liberty (of the Nepalese minority already settled in Bhutan). Liberals sensitive to culture appear to be caught between a rock and a hard place here, and "[ilt seems unlikely in this case that any claim or set of claims has absolute priority over others, since the conflicting values really are interdependent.""' What should be done in hard cases of this sort? One relevant factor to consider is the duration of 163 these restrictions in relation to their probable success in protecting (or averting the decay of) a culture. Here one could appeal to a "utilitarianism of riglits" account, holding that in the case of a conflict of rights, tlie course of action which results in a "net enjoyment of those riglits" is tlie preferred one.m Or one may say that those rights whose exercise results in greater net utility are to be preferred over others when they conflict (perhaps affirming the idea tliat some riglits count for more than others). But the above suggestions involve very difficult calculations and inferences, and may invoke more problems than solutions. In any case, whether we choose a general utilitarian approach or not, not much can be said in the abstract without a detailed investigation of the specifics of tliese specific cases. As Kymlicka says of these non-ideal scenarios: "These are complex issues in which our intuitions are pulled in different directions, and I don't see how any simple formula could cover all the relevant cases.'"' But tliis concession to hard cases is no reason at all to reject our ideal theory. Difficult and tragic conflicts are part and parcel of political life - Isaiah Berlin long ago forcefully made tliis poinf' - a~id their best resolutions may be no more than a pragmatic or diplomatic compromise, with tlie open- mindedness that such compromises are liable to revisions when conditions change andlor when new facts emerge."' Conflicts between riglits are common features of tlie democratic political landscape, and in difficult cases, some riglits have to give way; even liberal-democracies are not exempt from having to make difficult choices of tliis sort.'* As Cl~antal Mouffe notes, "[p]olitics in a modem democracy must accept division and conflict as unavoidable, and the reconciliation of rival claims and conflicting interests can be partial and provisional."" Sucli conflicts are matters for politicians to resolve on a case-by-case basis; philosophers cannot offer any general guiding principle here. Nonetheless, ideal tlieory still sets the bounds and limitations for tliese compromises and temporary solulions. True, an ideal tlieory is plainly flawed if it arrives at its limiting point very early on, i.e., if it cannot make general recommendations for much of what goes on in practice. However, I have tried to show throughout tliis chapter tliat the liberal view I defend arrives at tliis limiting point only in rare and extreme cases, tliat for the most part it is able to reconcile tlie rights of groups and individuals. More importantly, our confrontation with hard cases should move us to ask why such tragic conflicts arise in the first place. Concerning internal restrictions within some minority cultures in liberal states, these restrictions are in no small regard the result of pervasive social inequalities between groups. As Raz explains, [tlhe insecurity of existence in multicultu~al societies, especially where there is real or perceived discrimination against tlie group, tends to encourage conservative elements in cultural groups, resisting all cliange in tlieir culture which is equated with its dilution to the point of extinction. They also tend to increase pressure on members of the group to turn inward and reduce tlieir contact with tlie external world, as an inward outlook is perceived as the only guarantee against defection from tlie group. Similarly, Kymlicka write': "Even when minority leaders express a hostility to liberalism, it is important to remember the political context. These leaders may simply be responding to the fact tliat liberals liave been resisting the minority's claims for self-government, or other external protection^."‘^ That inequalities (and the resulting hostility) between groups are largely responsible for restrictions within weaker groups holds, a fortiori, in the global context for the obvious reason tliat inequalities here are more pronounced and pervasive. As Thomas Pogge notes, most domestic rights violations can be partly traced to tlie current global structure: Relative poverty breeds corruptibility and corruption. Powerful foreign governments support their favourite faction of the local elite and often manage to keep or install it in power .... Third-World politicians are bribed or pressured by firms from rich societies to cater to tlieir sex tourism business, to accept tlieir liazardous wastes and industrial facilities, and to buy useless products at government expense .... [[It is indisputable that the oppression and corruption in the poorer countries ... is by no means entirely homegrown .... It is entiiely unrealistic to expect that such foreign-sponsored corruption can be eradicated without reducing tlie enornious differentials in per capita GNP.6' This causal connection between global inequality and internal restrictions holds especially for the hard cases of tlie type we are considering. In the Bhutan example, tlie major motivation for Nepalese migration is poverty, and tlie threat this cultural influx posed to tlie Bhutanese national identity is exacerbated due to Bhutan's own impoverislied condition. This tragic scenario would not arise \vithin a more egalitarian 165 global framework. The dilemma of child-labour presents anotlier vivid example of how serious poverty gives rise to violations o f children's rights, the effective correction of whicli requires seriously confronting the problem of global inequality. Attempts at banning child-labour without addressing the fundamental issue of global inequality and poverty will only hurt the victims them~elves.~' If bard cases, and the mom1 dilemmas they pose, arise largely because o f global inequality, then liberals bave another pressing moral reason, besides the more familiar ones, to mitigate this inequality. A sincere and complete effort at promoting a liberal world order would therefore require remedying the current structural inequality between countries. Conclusion I rejected political liberalism on the ground that it fails to live up to the liberal commitment to individual liberty. This is because its tolerance of nonliberal groups is in tension with this commitment. In this chapter I considered tlie objection that while comprehensive liberalism may not face this tension, it may seem to some to face a different tension, namely that its commitment to individual liberty, on the one hand, and its commitment to cultural membership, on tlie other, set conflicting demands. But my response is that real instances orsucli conflicts are very rare for two reasons: First, in most instances of nonliberal cultural practices, these practices may be reformed or even abandoned without Iiarming tlie identity of a culture. Second, when it is objected that some cultures are inherently nonliberal s u c l ~ that reforming their nonliberal practices imply changing these cultures, I argue that such claims are difficult to substantiate, and in most cases plainly false. I concede though that in the rare case, protecting a cultural identity may entail restricting certain individual liberties. At this point, I admit that compreliensive liberalism bas no general solution to offer, that we bave reached the limiting point of our ideal theory. The resolution o f these hard cases is a ma~ter of pragmatism and diplomacy, better left to politicians than to pbilosopliers. But is theoretical limitation a 166 serious flaw for my liberal theory? Compared to the very real problem political liberalism faces, I contend that all things considered, the liberal view I am advancing is more acceptable despite this theoretical lim~tation. Normative political iheories aim to be action-guiding, specifically with respect to how we should design, assess and reform basic social and political institutions. On this count comprehensive liberalism comes out ahead despite tlie identified limitation. This limitation, because it is rarely realised in practice, affects little its action- guiding potential; and in tlie rare event of liard cases, it still plays a part in setting the perimeters for compromises. On the other hand, the tension political liberalism faces, as I have argued in earlier chapters, practically incapacitates it from the start. Lastly, I said that one important cause for difficult cases -- when they do arise at all -- is the perverse inequality between countries. If tlie problem of inequality is in principle resolvable or ameliorable, my optimism that tlie aforementioned limitation o f m y theory can be minimised in practice is further warranted -- the frequency of possible real-life liard cases would be significantly reduced. And given the well-documented causal connection between global inequality and domestic liuman rights violations, that comprehensive liberalism is more suited than political liberalism to address tlie problem o f inequality -- as I shall be arguing nest -- will be another point in its favour. ENDNOTES I . See Henry S h e , Basic Rialits (Princeton: Princeton Univ. Press, 1980); and Rawls's reference to these rights in "The Law of Peoples," in On Human Rislits, ed. Stephen Sliute and Susan Hurley (New York: Basic Sooks, 1993): 41-82, p. 62. 2. Michael Walzer, "The Moral Standing of States: A Response to Four Critics," Philosonliv and Public Affairs 913 (1980): 209-229, p. 218. 3. A s an example o f limited religious freedom, the Indonesian government does not endorse n~arriages outside one of the five recognized faiths in the country -- Islam, Catholicism, Protestantism, Hinduism and Buddhism - even if that religion is not explicitly banned. See "Confucian Couple Fights for Recognition," Jakarta Post Aug 1 1996, p. 2. 4. T o recap, Rawls holds that "reasonable persons see that the burdens ofjudgement set limits 011 what can be reasonably justified to others, and so they endorse some fonn of liberty of conscience and freedom of thought. It is unreasonable for us to use political power, sliould we possess it, or share it witli others, to repress comprehensive views that are not unreasonable." Political Liberalisni (New York: Columbia Univ. Press, 1993), p. 61. 5. See the liberal rights Rawls exempts well-ordered hierarchical societies from in "The Law of Peoples," pp. 62-63. 6. Walzer, pp. 210-16. 7. Joseph Raz, "Multicultunlism: A Liberal Perspective," in Ethics in the Public Domain (Oxford: Oxford Univ. Press, 1995): 155-76, p. 170. 8. "Inherently" here should not be thought of an endorsement of an 'essentialist' view o f cultural identities as atemporal, static and given. Plainly, I mean by "inherently nonliberal culture" a culture whose distinguishing practices (i.e., those features which differentiate it from other cultures, those which allow it to be identified as a distinct culture) are nonliberal and so reforming these practices necessarily involves changing the identity of that culture. Given, as is my claim here, that few cultures are inherently nonliberal, it will be easier to illustrate this point witli an illiberal example. A cultural group which is distinguished from others solely by its genocidal and racist aims is a cultural group which must necessarily take on a different identity (and offer a radically different context of choice for its adherents) when forced to renounce this practice. Even then, few cultures are inherently illiberal in this sense, perhaps the Aryan nation (if we could even for a moment grant it the status of a cultural entity) would be one rare example. 9. Will Kymlicka, Liberalism, Communiw and Culture (Oxford: Oxford Univ. Press, 1989). pp. 169- 71. 10. See Will Kymlicka, Multicultural Citizenship (Oxford: Oxford Univ. Press, 1995). pp. 94-95. 11. Quoted i!i P.N. Chopra, The Ocean of Wisdom: The Life of Dalai Lama XIV (New Delhi: Allied Publishers, 1986), p. 100, my stress. 12. Hilary Putnani, "Objectivityand the Science/Ethics Distinction," in Realism With A Human Face (Cambridge, Ma.: Harvard Univ. Press, 1990), p. 177. See also p. 176. 13. David Miller, On Nationalitv (Oxford: Oxford Univ. Press, 1995), p. !27, my emphasis. 14. Tariq Modood, "Anti-Essentialism, Multiculturalism mr! the 'Recognition' of Religious Groups," Conference on citizens hi^ in Diverse Societies: Theow and P r a c h , Toronto, 4 Oct. 1997, TS. 5. 15. Frank Cunningham, The Real World of Democracv Revisited (Atlantic Highlands, N.J.: Humanities Press, 1994), p. 106. 16. Bhikhu Parekh, "British Citizenship," in Citizenship, ed. Geoff Andrews (London: Lawrence and Wishart, 1991): 183-204, pp. 194-95, my stress. 17. See, e.g., Cunningham, pp. 103-05, 108. 18. Miller, pp. 127-28. 19. Samuel P. Huntington, The Clash of Civilization and the Remakine of World Order (New Y o r k Simon & Schuster, 1996). pp. 41,45. While the Asian Values argument has since been co-adopted by some Muslim countries in South-East Asia, the Asian Values initially extolled were East Asian values, namely Confucian values (under one interpretation), and was a position initiated by states whose populations share a close affinity to this particular civilizational world view. These countries include China, Hong Kong, Japan, Korea, Singapore and Vietnam. This is not to say that tliere are no minorities within these countries -- indeed there are sizable minority populations within China and Singapore who do not share the Confucian tradition. There are also notable counter-examples of Asian leaders who reject this position. President Lee Teng-hui of Taiwan is one Asian leader who denounces the Asian Values position: "I don't think there are distinctly Asian values. There are human values .... Some talk of Asian Values. I say that Asian peoples have rights just like in the United States." Quoted in "Freedom, Asian Values and a 'New' Chinese Culture," in The straits Times May 15 1996, p. 29. But I grant the position by leaving aside these difficulties for now. 20. For the kinds of restrictions rationalised by Asian Values see, e.g., Diane K. Mauzy, "Singmore in 1994," Asian Sunfey Vol XXXV12 (1995): 179-185; and Huntington, pp. 107-09. For a historic,l and evaluative survey of the Asian Values discourse, see Peter R. Moody Jr., "Asinn Values," Journal of International Affairs 5011 (1996): 166-92. 21. As the Singaporean leader Lee Kuan Yew says, "The more comnunitarian values and practices of the East Asians -- the Japanese, Koreans, Taiwanese, Hong Kongers, and the Singaporeans -- have proved to be clear assets in the catching up process .... The values that East Asian cultures upholds, such a s the primacy o f group interests over individual interests, support the total group effort necessary to develop rapidly." Quoted in Samuel P. Huntington, p. 108. The current economic crisis engulfing much of South-East Asia at the time of writing has surely put a damper 011 this argument, but I will not push this point here. 22. Bilahari Kim Hee P.S. Kausikan, "An East Asian Approach to Human Rights," Buffalo Journal of International Law 2 (1995-96): 263-283. p. 277. 23. Minimally, there are the negative duties of forbearance. Kant long ago wrote that "if a certain use of freedom is itself a hindmnce to freedom in accordance witli universal laws (i.e. wrong), coercion that is opposed to this (as a hinderine of a hindrance to freedom) is consistent with freedom in accordance witli universal laws, tliat is, right. Hence there is connected with Right by the principle of contradiction an authorization to coerce someone who inftinges upon it!' Kant, Vie Metanhvsics of Morals, trans. Mary Gregor (Cambridge: Cambridge Univ. Press, 1991). p. 57. Among contemporaries, it is familiar that Rawls's first principle puts it clearly tliat each person's scheme of liberties is to be "compatible with tlie same scheme for all." 24. Kausikan, p. 277. 25. This distinction has been made by liberals in a variety of ways, in terms of "individualistic" versus "individualism" (Kymlicka, Liberalism. Communitv and Culture, chap. 14) or "individuality" and "individualism" (Dewey, as noted in Karen Detlefsen, "Diversity and tlie Individual in Dewey's Tlieory of Democratic Education," Educational Theory (Summer 1998, forthcoming)). But the general distinction sought is 1 think clear. 26. Egalitarian liberals like Rawls, Ronald Dworkin and others have long rejected tlie idea of an unregulated free market economy. Indeed tlie egotism nonliberal countries so hastily accuse liberals of engendering is rampart in their own societies. See Daniel A. Bell "A Communitarian Critique of Authoritarianism: The Case of Singapore," Political Theory 2511 (1997): 6-32; and Aryeh Neier, "Asia's Unacceptable Standard," Foreien Policv 92 (1993): 42-51, pp. 42-43. Melanie Chew, "Human Rights in Singapore: Perceptions and Problems," Asian Survey XXXIVII I (1994): 933-948. 27. As Cunningham reminds us, "this attitude is conceptually confused. Whatever social-theoretical stand one takes on the metaphysical status of groups entities, it must be recognised tliat it is individuals and not social groups who actually experience the benefits of democracy or suffer tlie oppression of autocracy." Cunningham, p. 40. 28. Julia Ching, "Human Rights: A Valid Chinese Concept?", in Human Riclits in China and Islem, cd. D.C. Maguire (Washington: 1995): 2-22, p. 9. 29. Lee Teng-hui, "Chinese Culture and Political Renewal," Journal of Democracv 614 (1995): 4-8, p. 8. 30. A full investigation of such matters may require a close study of tlie recent debates in the so- called "post-colonial" discourse wliicli is out of my reach now. 31. James Gomez, rev. of To Catch a Tartar by Francis Seow, Human Ricl~ts Ouarterly 18 (1996):507-5 10, p. 509. 32. Gomez, p. 509. 33. Annette Marfording, "Cultural Relativism and the Construction of Culture: An Examination of Japan," Human R i ~ l i t s Ouarterly 1912 (1997): 43 1-448, pp. 447-48. 34. Ibid., p. 433, emphases added. Miller makes a similar point, pp. 40-41. 35. Ibid., p. 446. 36. As an illustration, the common assertion that East Asian societies are consensus-seeking is not at all verifiable in practice in some of these societies given their restrictions on liberty. As Aryeh Neier observes, "'consensus imposing' [rather than consensus-seeking] is n more fitting description of some governments in East and Southeast Asia" given the lack of democratic freedoms in these countries. Aryeli Neier, "Asia's Unacceptable Standard," Foreien Policv No. 92 (1993): 42-51, p. 43. 37. It is well-known tliat in Saudi Arabia, e.g., "women faced institutionalized discrimination affecting their freedom of movement and association and their right to equality in employment or education." I-luman Rirrlits Watch World Report 1997 (New York, 1996), p. 227. 38. Reported by Seth Mydans, "Blame Men, Not Allah, Islanlic Feminists Say," The New York Times 10 Oct. 1996, A4. 39. Laith Kubba, "Recognizing Pluralism," Journal Democracy April 1996: p. 86. 40. Reported in "Mahatir: Let's Practice Islam the Same Way," The Straits Times 21 July 1997, p. 2. Mahatir rejects the way in which some clerics in his own country have interpreted the hudud [Islamic Criminal Code]: "A woman who has been raped, and is unable to produce four witnesses, would not be able to have the rapist punished even if she knows who he is. On the other hand, she would be guilty of zina (adultery) and could be punished by stoning to death. By no stretch the imagination can this be considered justice." Quote from S. Jayasankaran, "Blunt Message: Mahatir meets Islamic Opposition Head-on," Fnr Eastern Economic Review 8 Aug. 1996, p. 22. 41. The above cases are reported by Elaine Sciolino, "The Many Faces of Islam," The New York Times 13 Oct. 1996 D4. I am assuming here that most liberal egalitarians would reject polygamy. Some may - dispute this of course. But the main issue here is tliat under one interpretation of the Koran, polygamy is impermissible. For more on liberalism and Islam, see Joseph Carens and Melissa S. Williams, "The Riglits of Islamic Minorities in Liberal Democracies: The Rhetoric of Inclusion," 1994 Annual Meetins of t l ~ American Political Science Association, New York; see also Leila Ahmad, Women and Gender in Islam: Roots of a Modern Debate (New Haven: Yale Univ. Press, 1992). 42. Leila Ahmad, pp. 15 1, 152. 43. Kymlicka, Multicultural Citizenship, Chap. 3. 44. For one very familiar example, leaders of China often say that social and collective interests (including economic performance) take priority over individual civil and political liberties in their culture. 45. For some examples, see Rhoda Howard, "The Full-Belly Thesis: Should Economic Riglits Take Priority Over Civil and Political Rights?", Human Riclhts Ouarterly (1983); Jack Donnelly, Universal Human Riehts in Theow and Practice (Ithaca: Cornell Univ. Press, 1989). chaps. 9 & 10; Henry Shue, Basic Riehts, 2nd ed. (Princeton: Princeton Univ. Press, 1996). As Donnelly says, "so much of what passes for developmental repression reflects instead regime maintenance, or even the personal interests of ofticials, and has only the most tenuous connection to development strategy." p. 189. While many defenders of this view point to the case of Singapore as a living proof, Singapore is more an exception rather than the rule. There are several counter-examples of countries which have both done well economically and managed to permit a greater degree of democratic freedoms than has Singapore (Hong Kong, Taiwan and South Korea are examples); indeed it seems more often the case that countries with poor democratic records also fared poorly economically (e.g., dictatorships in the Philippines, in many authoritarian African states and so on). 46. Jean Dreze and Amartya Sen, Huneer and Public Action (Oxford: Oxford Univ. Press, 1989), p. 278. See especially Chap. 11. The present economic crisis in Asia has been used by some as further evidence of how undemocratic politics hurt rather than bolster the economy. 47. Daniel A. Bell, "The East Asian Challenge to Human Rights: Reflections on ail East West Dialogue," Human Riehts 0unrterl.i I8 (1996): 641-667, p. 650. 48. This could be one reason why leaders ofthe Newly Industrialized Countries in South East Asian had to turn to the Asian Values position in the recent past in their opposition to liberal values. 49. Barbara Crossette, "Bhutan Struggles to Stop Militants," The New York Times 14 April 1991, 1.9:l. 50. See, e.g., Nari Rustoniji, Bhutan: The Draaon Kinadom in Crisis (Oxford: Oxford Univ. Press, 1978). pp. 7ff. 5 1. Quote taken from Crossette, "Bhutan Struggles." 52. This closure includes strictly limiting and regulating tourism, which for a impoverished country with a huge potential for drawing travelers is a substantial opportunity-cost. 53. As The New York Times reports, "Although the Bhutanese are statistically among the world's poorest people, the standard of living in agriculture villages appears higher than in India, Pakistan, Nepal or Bangladesh .... It is also an underpopulated country where food is plentiful." Barbara Crossette, "Now Tries To Be Then in the Land of Thunder Dragon," The New York Times 3 June 3 1990.1, 20:l 54. For a liberal defense of open borders, see Joseph Carens, "Aliens and Citizens: Tlie Case for Open Borders," Review of Politics 4913 (1987): 251-73. 55. These restrictions are noted in Crossette, "Now Tries To Be Then in the Land of Thunder Dragon;" A.C. Sinha, Blmtan: Ethnic Identitv and National Dilemma (New Delhi: New Reliance Publishing House, 1991). pp. 239-40; and Parmanand and Saroj B. Khanna, "Ethnicity in Bhutan: Causes and Effects," Journal of South Asia and Middle Eastern Studies XVllll (1993): 76-94. 57. Quoted in Bertil Lintner, "Stateless in Shangri-La," Far Eastern Economic Review 25 July 1996: 30-31, p. 30. There are also reports of illiberal violations in Bhutan, including detention without trial, suppressing political opposition, torture and forceful deportatio~l of settled immigrants. See, e.g., Michael Hutt, "Refugees from Shangri-La," Index on Censorship 22 (1993): 9-14; also Amnestv International Annual Renort 1995, pp. 72-73. But these are measures all liberals would condemned and so we need not discuss them here. 58. As Lintner reports, "Slipping across India's 720-kilometre, virtually unguarded border with Bhutan has always been simple .... Bhutanese authorities could do little to stop this influx, mainly because Thimphu [the capital of Bhutan] has very poor access to the lowlands." p. 30. 59. Kymlicka, Liberalism. Comrniinitv and Culture, p. 199. 60. Robert Nozick, Anarchv. State and Utonia pp. 28-29, cited in Kymlicka, Liberalism. Community and Culture, p. 198. 61. Ibid,, p. 199. 62. See, e.g., Isaiah Berlin, "The Pursuit ofthe Ideal" in The Crooked Timber of Humanitv (London, John Murray Publishers, 1990). As he says in a more recent article, "To demand or preach mechanical precision, even in principles, in a field incapable of it is to be blind and to mislead others." "On Political Judgement," New York Review of Books Vol XL111115 (Oct 1996): 26-30. p. 30. 63. For this last remark, see, e.g., David Dyzenhaus, "Liberalism After the Fall." Philosonhv and Social Criticism 2213 (1996): 9-37. 64. Rawls himself accepts trading off certain individual liberties for the purpose of public security. In a state of emergency, Rawls writes. "[clitizens may affirm the law [which, say, holds that sufficient evidence for conviction is that weapons are found in the defendant's property] as the lesser of two evils, resigning themselves to the fact that while they may be held guilty for things they have not done, the risks to liberty on any other course would be worse." A Theorv of Justice, (Cambridge: Haward Univ. Press, 1971) p. 242. (This reference was pointed out by Thomas Pogge). In recent history, even liberal-democracies like Canada have been forced to suspend civil liberties. 65. Chantal Mouffe, "Liberalism and Modern Democracy," in Democracv and Possessive Individualism, ed. Joseph Carens (Albany: SUNY, 1993). 66. Raz, p. 171; Kymlicka, Multicultural Citizenshie, p. 171. 67. Thomas Pogge, "An Egalitarian Law ofthe Peoples," Philosonhv and Public Affairs 2313 (1994): 195-224, pp. 213-14). 6 8 . See Owens Bowcon, "When Work is the Lesser of Two Evils," The Guardian Weekly 26 Oct 1997. Witness thus the tragic story of children who were sacked from clothing factories because of international pressure. Instead of enrolling in schools "which do not open up an immediate avenue to employment, many resorted to hazardous forms of work, such as sorting rubbish, street scavenging, prostitution, brick-breaking, or leather work. The number of homeless children also increased." CHAPTER SEVEN JUSTICE AND EQUALITY One of John R w l s ' s chief contributions in his seminal A Theow of Justice (henceforth m) was his "reconciliation of liberty and equality."' Equality and liberty were long thought to be conflicting ideals, and it was once a common perception that liberals opted for liberty over equality.- departs from this classical conception of liberalism, proposing an egalitarian form of liberalism, "a liberalism for tlie least advantaged, a liberalism that pays moral tribute to the socialist critique," as one commentator puts it.2 This commitment to equality in Rawls's theory is espressed in his famous two principles ofjustice? As Rawls explains, "the two principles ofjustice express an egalitarian form of liberalism by virtue of [the following] three elements:" a) tlie securing of the fair values o f political liberties in more than a formal sense, b) the fair (and more than formal) equality of opportunity, and C) the difference principle whicli allows for social and economic inequalities attached to oftices and positions when these inequalities are to the greatest benefit of the least advantaged niembers of society.' But in extending his theory ofjustice to the global contest, Rawls explicitly retracts these egalitarian commitments. As he puts it in "The Law of Peoples," "[tlo some degree the more general [i.e., global] liberal ideas lack tlie three egalitarian features of tlie fair value of the political liberties, of fair equality of opportunity, and of the difference principle. These features are not needed for tlie construction of a reasonable law of peoples and by not assuming them our account has greater generality."s We have already objected to Rawls's rejection of tlie fair value of political liberties as a global ideal (Chapter 2). My focus in this chapter is on his rejection of tlie fair equality of opportunity and tlie difference principle (i.e., his second principle ofjustice); in short, our discussion of Rawls's egalitarian retraction here concerns the issue of global social and economic inequalities. Some critics have argued that the equality of opportunity as articulated by Rawls's second principle is nat sufficiently egalitarian; yet others have thought that this equality offends individual liberty? My purpose here is not to defend the egalitarian liberalism advanced by Rawls agains,t these critics; that would require more space than 1 have Nor do 1 intend to delve into tlie finer pliilosophical debate regardingwhat exactly we should equalise -- I will take it for granted that Rawls's primary goods like income, wealth, power and social status are appropriate for our purposes! Rather, my limited aim is to show that a liberal theory ofjustice concerned with social and economic inequalities in tlie domestic sphere should not abandon this concern when it moves to tlie global contest. However. my criticism is not directed solely at Rawls's global liberal theory. 1 will go on to argue that this egalitarian retraction is already evident in Rawls's shift from comprehensive liberalism to political liberalism, his objection to the contrary? Thus in so far as Rawls's egalitarian omission is not accidental to his global theory but has its source in the idea of political liberalism itself, we have another reason to withhold assent from tliat idea. T h e Challenge of Global Inequality According to the UnitedNations Development Program's Human Develontnent Renort 1996, 17 million people in developing countries die each year from curable infectious diseases; 800 million do not get enougl> food; and 500 million are "clironically malnourished". 1.3 billion individuals (tliat is roughly 25% of the world's population, and mostly women and children) live in absolute poverty. Infant mortality mte in these countries remains at 6 times that of dcveloped countries. And life expectancy is on average 5 1 years in tlie developing world compared to 74.3 years for developed countries.l0 Yet it is a well known fact that many people in the world make do with less than adequate nourishment, clothing, housing, health care, education and other basic human needs not because of an 176 absolute shortage o f global resources but because of an unequal distribution o f these resources. Inequality in distribution of resources in turn determines what Amattya Sen calls a person's entitlements to these basic needs (e.g., the money with wliicli to purchase food)." That a fifth of the world's population consumes more than four-fifths of the globe's resources and own more than 80 percent of its wealth attests to this perverse global disparity in en~itlements!~So while poverty and inequality are distinct concepts, it is indisputable that much of global poverty is caused and sustained by a pervasive inequality in [lie distribution of tlie globe's resource^.^' That it is the lack of equitable entitlement which gives rise to poverty and not an absolute global shortage shows that global poverty is a legitimate moral concern. Given tliat "ought implies can", there would be no basis otherwise for arguing that we have a duty towards those in dire need. But as has been amply sliown by many, the Neo-Malthusian metaphor of earth as a lifeboat rapidly arriving at tlie limits of its carry capacity (made most famous by Garrett Hardin) is a dramatic misrepresentation of the global situation." As Sen and Jean Dreze put it: Hunger is ... intolerable in the modern world in a way it could not be in the past. This is not so much because it is more intense, but because widespread hunger is so unnecessary and unwarranted in the modern world. The enornious expansion of productive power that has taken place over the last few centuries has made it, perliaps for tlie first time, possible to guarantee adequate food for all, and it is in this context that the persistence of chronic hunger and tlie recurrence ofvirulent famines must be seen as being morally outrageous and politically unnc~eptable.'~ Many liberals have tlius offered various persuasive arguments why the debilitating poverty and its resultant human miseries described above are pressing universal concerns. Not least is the argument tlint the serious deprivation of fundamental human needs violates tlie basic rights of persons to security and subsistence." Other liberals, taking a duty-based approach, argue that if the protecting and promoting of moral agencies o f persons are important moral concerns, we have positive duties to help those whose moral agencies are being undermined by their lack of basic needs such as food and shelter!' Yet others, beginning from utilitarian premises, point out tliat if we can ameliorate human suffering without sacrificing anything morally significant on our part (and we can do this because of the drastic inequalities in global conditions), we have the duty to do so.'' For these liberals, our positive duties towards those afflicted by poverty are universal in that they extend beyond our own national and state boundaries. John Rawls, as I noted, advanced an egalitarian brand of liberalism in-, a liberalism committed to a fair equality of opportunity. His "[second] principle holds that in order to treat all persons equally, to provide genuine equality of opportunity, society must give inore attention to those with fewer native assets and to those born into the less favourable social positions. The idea is to redress the bias of contingencies in the direction of equality."" Although Rawls himself was mostly concerned with domestic justice in Rawlsians like Charles Beitz and Thomas Pogge liave shown us, albeit with variation in details, the global implications of Rawls's equal opportunity principle. They point out that if Rawls holds a person's race, gender, social status and other socially contingent factors about her to be "arbitrary from a moral point of view", and therefore to be factors that should not unfairly advantage or disadvantage her choice and pursuit of tlie good life, then neither should one's nationality and citizenship similarly advantage or disadvantage one As Pogge argues, Nationality is just onc further deep contingency (like genetic endowment, race, gender, and social class), one more potential basis of institutional inequalities that are inescapable and present from birth. Within Rawls's conception, there is no reason to treat this case differently from tlie others. And so it would seem that we can justify our global institutional order only if we can show that the institutional inequalities it produces tend to optimize (against the backdrop of feasible alternative global regimes) the worst social position." In addition to the above well-known arguments for greater global equality, we saw in the previous chapter n4iy liberals liave another important reason for addressing the problem of global inequality. To recall, liberals concerned with protecting individual rights universally may be obstructed in this task by tlic claims of national or stale self-determination. Yet both the demands of collective self-determination (under tlie relevant conditions) and individual rights, as we have seen, are legitimate liberal demands. But, 178 as I mentioned then, the dilemma here between protecting individual riglits on the one liand and respecting the collective claim of a society on the other, should it arise, is to a large degree generated by the pervasive social and econonlic disparity between societies. Weaker and poorer societies are more prone to imposing restrictions on their own members because of external pressures, felt or real. We may remember Pogge's observation that relative poverty breeds corruption, provides avenues for exploitation by outside interests (e.g., multinational corporations) with the help of local elites. Unequal relations between countries influence tlie kinds of governments installed in poorer countries, the narrow range of options these governments have and tlie lack of tolerance of these regimes towards internal dissension given tlie real global threats against their societies?' The dilemma of child-labour provides one stark illustration. As The Guardian Weekly reports, "In Bangladesh, a country where 67 percent of those under five are classified as malnourisl~ed, it is often extreme poverty wliich drives parents to send their own infants out to augment pitiful incomes.'c3 Given this fact, global legislation outlawing child-labour is unlikely to be successfully enforced at best, and, worse yet, may hurt the very children it is intended to protect. The root cause ofthis problem is poverty and, as one commentator notes, attempts to protect the riglits of children "will fail unless tlie international community is committed to combatting poverty through supportive action."'" So, Rawls's observation that "[tlhe great social evils in poorer societies are likely to be oppressive government and corrupt elites; the subjection of women abetted by unreasonable religion, with the resulting overpopulation relative to what the economy oftlie society can decently sustain" (LP. pp. 77. 22811) is only partly true; it overlooks the role of global conditions, in particular that of extreme poverty, in breeding domestic corruption." A universal co~nmitnient to human rights should therefore be critical of tlie global conditions which compel the infringement of these rights. Indeed, given the intricate global interdependence in today's world, in as far as global inequality can be shown to be perpetrated and perpetuated by global institutions wliich all of us are responsible for 179 supporting by our participation in them, we linve tlie additional duty to make amends for our causal role in engendering these inequalities. As Pogge writes, "[wle are causally involved in tliat we are significant actors in a world of tight global interdependence, in which our conduct decisions ... reverberate throughout the world." Consequently, "[wle are asked to be concerned about human rights violations [and deprivations] not simply insofar as tliey exist at all, but only insofar as they are produced by social institutions in wliicli we are significant participants."" Citizens of richer countries are therefore more strongly implicated in the ills of strangers in different parts of the world than tliey tend to think via their participation in unjust global institutions. We therefore have tlie duty to replace or reform these institutions. One may disagree (as I do) tliat we have these duties "only insofar" as we are causally responsible, but tliis line of argument provides in any casc another reason why we sliould be morally concerned about global inequality and the poverty it generates." Rawls's Egalitarian Retraction Given the perversity of global inequality and its effects, and given the growing interest on the part of liberals in addressing this problem, it is thus disappointing that Rawls should retract his egalitarian commitments in "The Law of Peoples". The egalitarian omission liere is hvo-tiered. First, Rawls's law of peoples fails to address inequality within some states (namely, tlie well-ordered but liierarcliical states). Indeed liberal states too received much leeway on how they are to address the inequality problem within their own borders. Second, it fails to address tlie problem of inequality between states. The failure to address inegzlitarian practices within states lias already been criticised in Chapter 2. Our concern in tliis chapter is with tlie problem of inequality between states. To start, we sliould note tliat Rawls is not advocating a cold-hearted policy (one which is, alas, adopted by mucli of tlie developed world) wliicli regards assistance to poor countries solely as a matter of cliarity and hence entirely at tlie discretion of donors. He allows that we have* of humanitarian 180 assistance to foreigners in times of need, and indeed he is critical ofthe fact that liberal countries are failing miserably in this respect." Rawls retracts his egalitarianism in the following sense: while he staunchly defends in his domestic justice, via his second principle, an egalitarian "basic structure" (i.e., the basic political, social and economic institutions of society) and not just a humane interpersonal morality to mitigate social and economic inequalities, Ile does not make a similar demand of the global basic structure. In other words, Rawls's domestic egalitarianism is directed at the basic institutions of society; his second principle provides liberals with a basis against which to assess and critique these institutions, and to reject institutional arrangements which perpetuate and legitimise inequality of opportunity between citizens. But in his global theory Rawls accepts, it appears, the present global institutional status quo as a given and urges only that countries assist one another in times of need within this existine scheme. It is in this crucial sense of not insisting on a more egalitarian global structure that Rawls's global theory lacks an egalitarian component. As he puts it plainly, "the basis of the duty to assistance is not some liberal principle of distributive justice" (LP p. 76). But as has been soundly argued by many global egalitarians, to effectively mitigate global inequality and poverty requires reforming our primary global institutions rather than taking these as acceptable baselines. Kai Nielsen, for instance, argues that as long as the global economic structure remains fundamentally capitalistic, many will continue to be exploited and be deprived of their basic human needs." Pogge, although more accepting of a global market econoriy, argues persuasively that certain institutional reforms are required, and that other institutional schemes must be established to counteract the social defects of the global marketplace. He proposes a global resource tax (GRT) wllich will tax better-endowed countries for extracting natural resources in their own territories and that the revenue from these taxes be channelled towards a development fund. This GRT, lie shows us, is one consequence of a faithful application of Rawls's second principle to the global co~itest.'~ Other global 181 economic structural reforms which have been suggested include tlie establishing of formal mechanisms for regulating and monitoring the activities of Multinational Corporations under whose dictate many poor countries operate;" regulating global currency and commodity speculation," restructuring international institutions like the International Monetary fund as is commonly called for, and conducing technology transfers from wealthy countries to poor ones?' In short, dobal egalitarians object not just to tlie present specific functioning and policy-goals of extant global ina..:btions like tlie International Monetary Fund, tlie World Bank, the General Agreement on Tariffs and Trade and so forth, but also to tlie underlying global laissez-faire principles driving these institutions and their practices. The global basic economic and social structure of concern to egalitarians thus includes specific international organs as weil as the general ideals that informed them. None of the above denies tliat humanitarian assistance and aid are important as well. But as long as thess take place within the present global arrangement, they serve only to treat the symptoms of injustice rather than tackle the underlying cause of it. As Andrew Belsey puts it, "of course, in the face of hunger and starvation both development aid and relief aid should be provided, but tlie cause ofjustice is best served by a structural transformation away from unequal global relations based on esploitation and towards equality based on recognition of common similar needs.'"%ikewise S h e stresses the relevance of institutional changes for protecting basic ridits: "[W]e need better internatio~ial institutions. We will not know what our duties are, nor will we know what riglits people can expect to enjoy, until we have constructed these institutions. Meanwhile, our common humanity requires at the very least ... tlia: wc participate in the conversations about the i~istitutions tliat miglit protect basic rights.'" Thus a sincere commitment to equality o f opportunity calls for some reformation, if not a drastic overliaul, oftlie global basic economic and social structures. But Rawls believes that a liberal global theory cannot impose this egalitarianism for the following reason: [Tlliere are various kinds of societies in the society of peoples and not all of them can reasonably be expected to accept any particular liberal principle of distributive justice; and even different liberal societies adopt different principles for their domestic institutions. For their part, the hierarchical societies reject liberal principles of domestic justice. We cannot suppose that they will find such principles acceptable in dealing with other peoples (LP p. 75, my emphasis). As evinced by this passage, Rawls worries that an egalitarian law of peoples would not only be reasonablv rejected by nonliberal societies, but would also be reasonably rejected by liberal societies whicli may have different ways of articulating their egalitarian commitments? These are two quite different concerns which we should look at separately. Let us look first at the demands that a liberal theory ofjustice imposes on nonliberal societies. Is it true, as Rawls believes, that just because a well-ordered hierarchical society "reject[s] all liberal principles of domestic justice" it will also reject all liberal principles of international justice? The answer is both yes and no. With regard to the more familiar liberal ideals like individual rights and freedoms, it is probably correct that nonliberal states. because they uphold nonliberal political and social institutions, will find it difficult to endorse these as binding global principles. This is clear: accepting liberal ideals of rights and freedoms (e.g.. freedom of speech and association, right to political participation, etc.) as having global validity will have repercussions on the domestic arrangements of nonlibeml societies. But recall my arguments in Chapter 2 why the rejection of these ideals as global ideals, contra Rawls, cannot be seen as reasonable from a liberal view point. At any rate, our main concern in this chapter lies elsewhere, with the liberal principle of distributive justice. And with regard to this principle, it is false to say that nonliberal societies will reject this as a global ideal. What reasons do we Iiuve for thinking that a society \vhich rejects equality among its own citizens will also reject equality between societies? It is, on the contraly, more plausible (and more probable to my mind) that a society wliich believes that certain economic and social inequalities among its citizens are justified will still insist, nevertlieless. that it is entitled to a fairer sliarc of the world's resources. Notice that this conclusion remains plausibleeven if we were to accept Rawls's two- 183 stage original position procedure (where only delegates of societies are represented at the second and global stage -- delegates, the elites of society, stand to gain from inequality at home and therefore also from acquiring more global resources)?' Indeed, given Rawls's earlier claim that "A people sincerely aftirming a nonliberal conception ofjustice may still think their society should be treated equally in a just law of peoples, even though its members accept basic inequalities among themselves" (LP p. 6 3 , his present apprehension that nonliberal states may not endorse a global distributive principle seems incongruous. Thus, nothing about a people's belief that distribution witllin their society should be unequal entails that they believe also that they as a society should get less than other societies. A society which rejects the liberal principle of distributive justice as a domestic principle can still endorse it as a global principle. In fact, one reason a hierarchical society might offer for its domestic inequality is that it has less than its fair entitlement of the globe's resources, and is therefore unable to distribute whatever little it has equally among its own people. But should there be a more equitable global distribution, its argument continues, a more equitable domestic distribution will follow. On the contrary then, it is all the more likely that this society will agree to some global distributive principle rather than rest content with the present inegalitarian global status quo. Its domestic inequality therefore, instead of being a reason against, is in fact a motivation for endorsing a global principle of distributive justice. This point has been argucd by Pogge, and is confirmed in international practice -- leaders of developing nations often point out that inequality in their countries is the result of their being poor c o ~ n t r i e s ? ~ Accordingly, because nonliberal societies tend to be in reality the less well-off societies compared to liberal ones, they stand to gain from an egalitarian global theory and therefore. pace Rawls, will readily endorse this It seems therefore that nonliberal societies will embrace at the very least a global equivalent ofthe Rawlsian difference principle, if not more.du Expediency from the nonliberal countries' point of view should urge their endorsement of some global distributive principle. I84 On the other hand, because liberal societies (being tlie better endowed ones generally) will be called on to bear most of the burden of a global principle of distributive justice (they will have to give up some of their resources which they have hitherto taken for granted to be theirs or at least pay a resource tax for tlie extraction of these), any resistance to a global principle of distributive justice is more likely to come from liberal quarters than nonliberal ones?' That it is liberal states which will bear the burden of a global distributive principle lends to an interesting observation: the demands of a fully liberal global justice are neither one-sided nor culturally biased then. Liberal justice makes demands, this is true, on nonliberal societies wliicli will be pressured to liberalise some oftheir domestic political practices. But on the other band, it will also impose significant demands on liberal states -- tliey are to accept global institutional arrangements which will call on them to transfer resources, which tliey have taken for gnnted as rightfully theirs, to less endowed countries. A critical reading of Rawls's global theory could therefore charge him with infringing his own provision that liberalism ought not to be stable in the wrong way, tliat is, to be a mere niodus vivendi for accommodating existing diversity? It would say tliat his law of peoples makes concessions to both liberal and nonliberal states. For the former. Rarvls abandons his own egalitarian commitments; for tlie latter. he relaxes tlie conditions for liberal toleration (Chapter 2). On this reading, as liberal states get an overly generalised global theory which will not call on them to sacrifice too much economically, so no~iliberal states get a liberal theory which will forgive, on purportedly cultural grounds, their restrictions on individual liberties. Nonetheless, it is not clear that liberal states would endorse a global theory which permits the restricting of quintessential liberal rights (as I argued in Chapter 2), and that nonliberal states \\,odd be enticed by a oonegalitarian global theory (as 1 argue now). So Rawls's hope that his generalised law of peoples, with a more relaxed criterion of toleration and no strong egalitarian fcature. can actually win 185 global endorsement is groundless. In short, Rawls wants to show that his law of peoples is both a) just and b) stable. But we see now how Rawls fails on these two (of his own) counts. Chapter 2 and the above discussion on inequality show that his law of people fails the first (and crucial) count; and because of its failure to address the economic concerns of poor countries, which is a major issue (more so tlian civil liberties and freedoms in extreme cases) for the majority of the world, it is less stable a global theory tlian he thinks. So, if there are any covert concessions to both liberal and nonliberal states in Rawls's law of peoples, these concessions are all for nought. Egalitarianism in Political Liberalism Rawls's other reason for not insisting on a global distributive principle is his belief that liberal societies theinselves may reasonahlv disagree on the kinds of distributive principle to endorse. An examination of this point will show that Rawls's egalitarian omission is not accidental to his global theory but is in fact symptomatic of a fundamental shortcoming in political liberalism itself. If my following assessment is sound, we have another reason to be sceptical of political libenlism. In Political Liberalisni, Rawls says: A principle specifying the basic rights and liberties covers the second kind of constitutional essentials [wliich regulate matters of distributive justice. equality of opportunity, social and economic inequalities and so on]. But while some principle of opportunity is surely such an essential, for example, a principle requiring at least freedom of movement and free choice of occupation, fair equalit;' of opportunity (as I have specified it) goes beyond that and is not such an essetitial. Similarly, though a social minimum providing for the basic needs of all citizens is also an essential, wliat I have called the 'difference principle' is more demandin~ and is not (PL pp. 228-29, my emphasis). This is because wliether the aims of the principles covering social and economic inequalities are realized is far more difficult to ascertain. Tliese matters are nearly always open to wide differences of reasonable ooinions; they rest on complicated inferences and intuitive judgements that require us to assess complex social and economic information about topics poorly understood. Thus, although questions of botlr kinds are to be discussed in terms of political values, we can expect more agreement about whether the principles for the basic rights and liberties are realized than about whether the principles for social and economic justice are realized. This is not a difference about what are the correct principles but simply a difference in the difficulty of seeing whether the principles are achieved (PL pp. 229-230, my emphasis). So Rawls now tells us that his celebrated second principle is no longer an essential for every liberal society because of the fact of reasonable disagreement over the efficacy of this principle. While the general idea of equality of opportunity, which will include the principle of freedom of movement and free choice of occupation, remains an essential, how this idea is to be articulated (e.g., in its content and detail) is open to discretion. Liberals dispute over how best to realise the equal opportunity principle, and therefore to insist that all (liberal) societies adopt the second principle will be too demanding. So, unlike the first principle (articulating the equal basic rights and liberties of citizenship) which "can be specified in but one way, nlodulo relatively small variations" (PL p. 228) and which therefore remains an essential for all liberal societies, the second principle is now, evidently, optional. It therefore cannot be a globally valid ideal even for a world of liberal states. Rawls thus unabashedly rejects the universal validity of his second principle even for liberal societies. But what he is less explicit about (or perhaps what he is unaware of) is that this inadvertently entails an abandonment of the second principle as a binding principle f o r m liberal socicty. I f political liberalism does not insist on the validity ofthe second principle for all liberal societies because of the fact of reasonable disagreement -- because "[t]liese matters are nearly always open to wide differences of reasonable opinions." that "they rest on complicated infercnces and intuitive judgements that require us to assess complex social and economic information about topics poorly understood" -- tliw it seems to me that it also must not insist on it as a binding domestic principle for any liberal society. Given his own starting assumption about the reasonable pluralism within any given liberal-democracy, "a permanent feature ofthe public culture of democracy" and not a "mere historical fact that may soon pass away" (PI. 187 p. 36), Rawls must accept that the second principle will also be "open to wide differences of reasonable opinions" within a domestic liberal societv for the very same reasons he says it is open to wide differences of opinion between liheral societies. Notice that Rawls does not say that different liberal societies will disagree over the efficacy of the difference principle because oftheir different public- political cultures or historical contexts. Rather, disagreement arises because of "reasonable" divergent general intuitions and opinions about these "poorlv understood" matters. Yet these divergent intuitions and opinions are as present a pluralistic society as between different societies. Citizens of a pluralistic democracy holding different reasonable comprehensive doctrines (say a M m i s t or even a liberal Millian comprehensive philosophy and a Lockean one) will surely argue vehemently over how best to realise the general idea of equal opportunity. I n short, Rawls must admit tliat any principle explicating the ideal of equal opportunity can never be the focus of an overlapping consensus in a pluralistic society. It seems, therefore, that Rawls's new concern with reasonable pluralism and with presenting liberalism as a'freestanding' political morality detached from any particular comprehensive doctrine has forced him to rescind (even if inadvertently) the egalitarianism he so strongly defended in his earlier works. Because of political liberalism's reluctance to endorse any particular comprehensive moral or philosopl~ical doctrine (including liberal ones), it deprives itself of the basis upon wllicll to justify the Rawlsian second principle, or any principle explicating and specifying the general idea of equal opportunity for tliat matter. Thus, for the political liberal, there can be no second principle. no equality of opportunity principle of any sort however this may bc expressed; every prospective principle can be contested given the fact of reasonable pluralism. Hence Rawls's assurance in the opening of- 1,iberalism that the egalitarian features defended in - and their bases are still in place is too hastily offered. The worry of "some [wlio] have thought that [his] working out the ideas of political liberalism meant giving up the egalitarian conception of*" (PL p. 7n) does indeed have some basis, Rawls's protest to the contrary. 188 To round out my above criticism, let me state categorically the dilemma confronting the political liberal. As we have seen, the reasons Rawls gives for rejecting the second principle as having universal validity are reasons also for denying the validity of thesecond orinciole itself. So, either the political liberal rejects these reasons and maintains that the second principle has universal validity, in which case she concedes the untenability of the ideas of political liberalism; or she accepts these reasons as entailed by political liberalism and thereby rejects the second principle (or any articulation of the equal opportunity principle) in the global and domestic contests. But if the latter, political liberalism is seriously deficient from a liberal egalitarian view point, and we have yet another reason to renounce it. A global theory based on comprehensive liberalism, besides being better able than political liberalism to protect individual rights against oppressive states (as we saw in Chapter 4), is also, as is now evident, more sensitive to the probltm of inequality between states. As theorists like Beitz and Pogge have shown us, extending the comprehensive liberal commitments of- to the global contest entails certain institutional changes and reforms to equalise global social and economic relations. Comprehensive liberalism remains fully committed to the second principle (or at the very least some alternative to it) whether in its domestic or global application; it is able to defend a universal principle explicating the fair equality of opportunity.J3 The root of this difference between political and comprehensive liberalism lies in how each regards the liberal principle of toleration. The political liberal worries that imposing the second principle (or any alternative to it) on all liberal societies would be insensitive to disagreements over how best to realise the ideal of equal opportunity and hence a violation of the principle of toleration itself. These disagreements are reasonable in the eyes of the political liberal so long as they do not impinge on the liberties protected by the first principlc.J4 For the comprehensive liberal, on the other hand, the toleration principle is derived from the more fundamental liberal commitment to individual autonomy, and so in as far as autonomy is a oosteriori underminable by social or economic inequalities, she will insist on some I89 principle of distributive justice, disagreements over the content of this notwithstanding. She will appeal to liberalism's own comprehensive moral commitments to defend her stance if need be. In fact, it was the defence of the 'worth of liberty' which motivated Rawls's commendable reconciliation of liberty and equality in =Ps But in treating the liberal commitment to liberty strictly as a political conception which should not encroach too much upon different comprehensive doctrines. Rawls now, apparently. sees the reconciliation of equality and liberty as secondary to the idea of toleration?' Finally, and very importantly, because of its cominitinent to global egalitarianism, a comprehensive liberal global theory is better able than Rawls's law of peoples to win global endorsement in spite o f its unwillingness to tolerate restrictions on individual liberties. As 1 noted earlier, a comprehensive liberal global theory makes demands on both nonlibeml and liberal societies; yet both of these parties stand to gain in different ways from endorsing it. Nonliberal states are asked to reform their domestic practices but in turn get a fairer share of the world's resources; liberal states sacrifice some of their GNP, but get a global system of rights consistent with their moral philosophy.J7 The point here, I should stress, is nct that this global theory is legitimate only because it can win global endorsement. Rather. that it can be endorsed only shows how such a global theory, which 1 have argued to be a more consistent and just interpretation of liberalism, can also be stable with respect to justice. Two Objections to Global Egalitarianism A) Laissez-Faire Capitalism In this section, I will counter two possible objections to a global principle of distributive justice. The first objection: some may take issue with my claim that a concern for global justice requires reforming the global basic structure (e.g., reformations along the lines of the Rawlsian second principle). They will counter that what is needed to combat poverty and inequality among peoples is more extensive and rigorous application of free market principles, for example, freer trade between countries, rather than 190 more market regulations and trade restrictions. It is trade restrictions and other restrictions on the free movement of goods and scrvices between state borders that stunt the growth of some countries. Thus, as a familiar example, note tlie Adjustment Programmes tlie International Monetary Fund imposes on ailing countries (in return for a bailout package), which include trade liberalization, reducing the state's role in the economy, cutting food subsidies, iilcreasing privatisation, the opening of domestic financial markets to global competition, all of which are characteristically market-oriented reforms undertaken in the name cf restoring their flagging economies. While this defence of global laissez-faire capitalism could be understood as a "globalised" libertarian position, 2nd a complete defence of global egalitarianism must no doubt rise to this cliallenge, a debate between liberal egalitarianism against libertarianism is out of the bounds of this chapter -- reca!l that my limited aim is to show that- must accept an egalitarian global theory. Moreover, it is conceivable that one who rejects laissez-faire capitalism as a domestic ideal may nonetheless accept it as a viable global ideal for whatever reason. So our imniediate quarrel here is not with libertarians in general, or with anyone w11o opposes economic equality per se, but with those wlio accept some form of egalitarianism as a normative aspiration, but think that an unrestricted global free market (rather than tlie kinds of restructuring and regulations I noted earlier) is how we can narrow tlie gulf between the Nonli and Soi~tli."~ The idea that a global economy based on the principles of free market is most conducive to meeting tlie needs of developing and underdeveloped countries informs tile present global economic structure. Lynn H. Miller writes that wliile "[tllie international economic regime establislied after World War I1 did not exactly turn its back on the problems of ... the Sooth, ... tlie international system was built upon several general assumptions. often more implicit than explicit, in keeping wit11 tlie precepts of laissez-faire liberalism." One assumption "was that development in poor countries would follo\v the revitalization of the ric11, since growing demand in tlie North would presumably stimulate increased 191 production in the S o ~ t l i . " ' ~ Another was that underdeveloped countries will come to their own industrial revolutions in their own natural course if market forces are given free rein. Yet another laissez-faire principle taken for granted was the "theory of comparative advantage", the thesis that poor countries would improve their performance by specialising on the commodities they are especially well suited to produce and export." But, as L. Miller points out, recent history has since shown these assumptions to be blatantly mistaken. T o be sure, trade is especially crucial in providing developing countries with much needed investment capital. But to stay conipetitive in tlie global market, many developing countries are forced to specialise in particular commodities for export, and to import in return finished or manufactured products from developed countries. Consequently, poor countries are made even more dependent and hence more vulnerable to the economic policies of developed countries. The fall in commodity prices (in the 1980s), in no small measure exacerbated by price speculation by commodities traders in affluent countries, destroyed many fledgling economies overnight. Moreover, even if increased demands for manufactured goods in rich countries stimulate industrial growth in developingcountries, this, rather than improving the lot of poor countries, tends to worsen it. Manufacturing countries industrialised at the cost of becoming food importers as their traditionally agrarian population is relocated from the agricultural sector to manufacturing. This accentuates the vulnerability of poor countries as they are now dependent on h e outside world for bnsic subsistence?' Add to this depelideiicy the detrimental effects of large migration from rural areas into third world cities, pollution and large scale environmental degradation and it becomes patent that rather than bettering the lives of the ordinary person, large scale industrialisation has in numerous cases worsened her lot.S2 So, although proponents of laissez-faire capitalism may point to tlie economic successes of countries like Hong Kong, Singapore, South Korea and Taiwan as evidence of tlie success of a free 192 market global economy, there are several failures on the otlier hand as a result of global laissez-faire capitalism. "[T]liey fail to notice that these 'Tigers' total only 2 percent ofthe third world's population, that there are already strains on their limited-product, export oriented economies, and that what 'success' they liave enjoyed has been accompanied by appalling conditions of work and enormous debts.'*' For tlie majority of countries in the continents of South America and Africa, their economic growtli rates compared witli tlieir population increases have actually declined during tlie past decade?' In fact, the economic crisis afflicting many Soutlieast Asian economies at the time of writing, while yet to be fully assessed and whose effects have yet to be fully appreciated, has prompted some leaders in that region to temper tlieir faith in laissez-faire global capitalism, and to call for regulating certain aspects of tlie global economic practices, in particular tlie speculating of currencies, and the role and free-market policies of the International Monetary Fund." Finally, even if global capitalism does succeed in bringing about growtli in some countries, their increased GNPs come at tlie expense of increased inequality witliin their borders. As tile- Development Report 1996 notes, "There are also winners and losers witliin countries. Income inequality is clearly on the rise in many countries that liave opened tlieir economies." Take for instance China whose Gini Coefficient rose from 0.33 in 1979 (lower than that of any otlier East Asia country) to 0.38 by 1988 (surpassing those of Indonesia and the Republic of Korea) after it "began to unleash market forces, privatize its economy and reality and rapidly open up to international trade and finance.'"' A serious commitment to egalitarianism even as just a domestic ideal would be sceptical of global laissez-faire capitalism especially witli respect to developing countries?' As long as countries compete on different terms, as long as the global economic order favours some (powerful) countries over others, allowing market forces a free hand is not going to bridge the gap between the ricli and poor but in fact widen it. As Noam Cliomsky tells us, "tlie gap between tlie ricli .and poor nations doubled from 1960 tbrougli 1989. These results arc attributable in large part to tlie dual 193 policies pursued by the rich rulers: "free market" principles are imposed on the poor via structural adjustment programs dictated by the IMF and World Bank", forcing them to open up their markets to the developed world.'"he market-orientation of the International Monetary Fund has been duly exposed and criticised by the United Nations Children's Education Fund: Most of these adjustment programmes did not reverse the adverse developments in the conditions of children, nor, in many, did they lead to resumed economic growth .... Direct negative effects on some vulnerable groups arose frow policies towards the exchange rate and producer prices, associated with rising urban food prices, cuts in food subsidies (which were an element in one-third of the adjustment packages), and cuts in social expenditure per capita which occurred in over half the Third World countries between 1980 and 1984?9 Unsurprisingly, many developing countries "see the IMF as little more than an instrument to soften up [their] economies for US [further] d~mination."~ Another instance of how free market forces improve tlie lot of the rich by worsening that of the poor is the monstrous debt burdening many developing countries. Because of an initial imbalance in the wealth of countries (due to the contingencies of history, colonialism etc.), many developing countries were compelled to accept loans from First World governments and banks, and then channel much of their earnings to the servicing of these debts, thereby facilitating ironically a transfer of wealtli from the poor to tlle rich."' The idea o f fair competition which underlies the free market ideal is thus largely a myth, especially with regard to tlle global context. As the United Nations recently reports, "Contrary to tlie post- Uruguay Round image of the world Agricultural market as a level playing field, the major esporters, notably the European Union and the United States, have continued to subsidized production and exports .... As poor countries open their economies, they expose many poor agricultural producers to overwhelming and unfair compc:ition.'*' It is also well documented that domimnt Multinational Corporations enjoy intimate ties with their respective state governments who in turn can tilt the global playing field in tlieir favour, often by resorting to despicable tactics?' Until the basic economic structure 194 is restructured to be essentially fair, relying on free market principles will only permit some countries to be further impoverished. It could be objected that any regulation of free-market forces would not only be wasteful (one could say here that regulating agencies need to be staffed and are costly to administer) but could also b s misdirected to the advantage of corrupt regimes who might otlienvise be unable to sustain their positions of power. These are genuine worries, but it seems to me that wastage and corruption are not unavoidable or, a t the very least. not unrectifiable. It is beyond my means to present a detailed solution here, but many global egalitarians have argued that there are different (and alternative) channels for transferring resources without deploying unwieldy and bloated bureaucracies and without handing these smack into the hands of corrupt rulers. Non-Governmental Agencies, carefully targeted resource transfers, carefully discussed and thought out conditions imposed on such transfers and so forth are possible means o f minimising wastage and misuse and abuse of resources. B) The Priority of Nationality The second objection I shall look into is a more fundamental one. It begins from the beliefthat we have special duties to our compatriots and co-nationals. Accordingly, the objection continues, in as far as these special duties can conflict with the needs of strangers, our quest for global equality ought to be to this extent limited. One o f t h e more plausible and common justifications ofthis "priority thesis" (the phrase is Charles Beitz's) is the comtnunitnrian defence of nationality. I shall consider here the recent argument advanced by David Miller. Before tackling Miller's objection, I should first note that Miller focuses his discussion on the duties of nationality rather than citizenship as such. But even if Miller succeeds only in showing that there are special duties between co-nationals and not necessarily between citizens. he succeeds in limiting global egalitarianism. Conversely, because the communitarian argument is one of the strongest defences available to statists who hold that citizens take priority (see Chapter 4). if I succeed in showing the communitarian position unsound, the statist position is consequently considerably weakened. Let me start with an extended quote from Miller: The duties we owe to our fellow-nationals are different from, and more extensive than, tlie duties we owe to human beings as such. This is not to say that we owe= duties to humans a s such; nor is it to deny that there may be other, perhaps smaller and more intense, communities to whose members we owe duties that are more stringent still than those we owe to [fellow nationals at large]. But it is to claim tliat a proper account of ethics should give weight to national boundaries, and that in particular there is no objection in principle to institutional schemes tliat are designed to deliver benefits exclusively to tliose who iall within the same boundaries as ourselves."l So from tlie point of view of more powerful nations, the present global economic arrangement whicli facilitates the promotion and protection of their "national interests" is not necessarily morally objectionable if Miller's thesis is sound. Miller rejects what he calls etliical universalism, the view tliat moral "principles are [fundamentally] universal in form [and therefore] only general facts about other individuals can serve to determine my duties towards them.'"' He favours, instead, etliical particularism, the view that "relations between persons are part of the basic subject-matter of ethics, so tliat fundamental principles may be attached directly to these relations." By way of illustration, tlie claim "because lie is my brother" or "because he is my co-national" can serve as a M reason for action for the etliical particularist but not for tlie ethical universalist. As we can see, Miller does not say that we owe no duties at all to foreigners, nor does he say tliat tliose who favour a more universalistic view of ethics must reject the idea that we owe special duties to co-nationals. The ethical particularist can derive universal commitments for "[t]liere is nothing in particularisni which prevents me from recognizing that 1 stand insome relationship to all other Iiunian beings by virtue of our common humanity and our sharing of a single world" (p. 53). Likewise, the etliical universalist can say tliat we owe special duties to certain persons because of the voluntary contracts we have entered into or because special duties are effective strategies for fulfilling our universal obligations 196 to humanity at large (pp. 5 1-52).W So in practice, at the level of policy, there can be a fair degree of convergence behveen these two fundamentally different ethical starting points Miller speaks of. The serious divergence between the ethical universalists and particularists occurs when providing for the needs of co-nationals conflicts with providing for the needs of foreigners. The particularist would be inclined in this case to give priority to the former over the latter precisely because of her belief that our duties to strangers are weaker and less extensive than those to co-nationals (pp. 77-78). So, if Miller's ethical particularism is sound, the liberal aspiration for greater equality is going to be limited by the special demands our co-nationals place on us. It will seem, in this case, that only after have we discharged all special obligations to co-nationals, which may be an endless task itself, are we obliged (or even permitted) to fulfil the needs of strangers. Much is nt stake tllus, for global equality depending on whether we begin from an ethical particularistic or universalistic ethical standpoint. For one. a global Rawlsian second principle or any principle of global distributive justice would be ruled out in this view."' One of Miller's reasons for rejecting ethical universalism is already familiar to us. He argues that ethical universalism ignores the way our moral agency is constituted and engendered by our respective national identities. He quotes Alasdair Maclntyre approvingly Iiere: "[ethical universalism] requires of me to assume an abstract and artificial -- perhaps even an impossible -- stance, that of a rational being as suc11, responding to the requirements of morality n o t u l parent or farmer or quarterback, but- rational agent wlio has abstracted him or herself from all social particularity, who has become not merely Adam Smith's impartial spectator, but a correspondingly impartial actor, and one who in his impartiality is doomed to rootlessness, to be a citizen of nowhere" (p. 57). But we saw in Chapters I and 4 tbnt this communitarian rejection of ethical universalism is unfounded. That we must be constituted within specific communities qua moral beings does not imply tliat we are therefore incapable of adopting an ethical universalistic standpoint. To recall, "the question of moral learning and motivation are distinct from that oftlie nature of morality .... [Tllie fact that our 197 communal relationships play a major role, even a constitutive role, in defining us as moral agents does not imply that we are, or should regard ourselves as, incapable of achieving the degree of detachment or objectivity that the notion of [universalistic morality] requires.'" Moreover, as pointed out by Thomas Hurka, Maclntyre's attempt to justify loyalty to one's nation as a universally worthly virtue presupposes ethical universalism. That is, the nationalist's own claim that co-nationals take priority is itself accepted as universally bindingP9 However, Miller offers us a second, and more challenging, reason for rejecting ethical universalis~n. He thinks that the universalist will have difficulty accounting for many classes of special duties, in particular the class of special duties between co-nationals. But because we & ordinarily accept that we owe special duties to some which we do not owe others, the universalist position is fundamentally flawed. Notice that Miller is not saying here that the universalists accept that compatriots have priority always (in fact they clearly deny this), but they do accept at least that all tliinzs beine e w a l compatriots can permissibly count for more. But, Miller says, it is not clear how the universalist can justify this moral intuition. A consistent universalist, he conciudes, must be committed to the unappealing and counter- intuitive view that it is always wrong to give special preference to one's own fellows (p. 64). But to my mind, Miller has not offered us any convincing argument why ethical universalism cannot ground special duties between compatriots. There are different plausible strategies available to the universalist to justify special duties. One strategy is to argue along with Robert Goodin that "[s]pecial responsibilities are ... assigned merely as an administrative device for discharging our general [i.e., universal] duties more efficiently."70 That is, special duties mediate universal duties; they allocate the othenvise daunting and myriad list of obligations we owe to all others by parcelling out and assigning particular duties to specific persons or institutions. So special duties are easily generated by universal duties as a method of efficiently dividing our moral labour. In Goodin's words, "A grcat many general duties point to tasks that, for one reason or another are pursued more effectively if they are subdivided 198 and particular people are assigned special responsibility for particular portions of the task."" The universalist can therefore justify special duties behveen co-nationals on this instrumental ground. As an illustration, it is for the most part more efticient and manageable to assign Canadians the special responsibility for the health care of fellow Canadians than if this duty reniained general and left to some unspecified "humanity". Indeed the added advantage of Goodin's general strategy is that it can justify special duties between citizens as well (and not just co-nationals), whereas Miller's ethical particularism at best can only explain duties between co-nationals." Miller rejects Goodin's "useful convention" justification of special duties on the ground that there is no assurance on this view that those assigned to protect these rights, namely co-nationals, are indeed the most competent or qualified to undertake this task. Physical proximity and administrative ease are not good reasons, lie says, because "[n]eitlier of these have any intrinsic connection with nationality" (p. 63). But more devastatingly, he thinks, nations are in fact radically unequal in their capacity to provide for their own members and so contradicts the universalist's claim that dividing up our moral labour amongst nations is an effective strategy for fulfilling our universal obligations. But Miller's attempted refutation ofGoodin's argument, it seems to me, mistakes liis premise for his conclusion. Goodin is not arguing that all nations are equally capable of undertaking tlieir special responsibilities to their own peoples. I-lis whole point in wanting to show that the special duties between co-nationals are derived rather than basic h exactly to support his co~iclusion that when some nations fail in their duties to tlieir own peoples for whatever reasons (global inequality being liis main concern), this moral obligation is not vitiated but remains in force and falls onto other nations. So to use Miller's own example, Goodin will wholeheartedly agree that it is wrong to say that Swedes, with a per capita annual income of $24,000, have no obligation whatsoever to Somalians, who claim only a per capita annual income of $120 (pp. 63-63). Swedes, to be sure, are better able than Somalians to take care of the needs of tlieir fellow Swedes on the instrumental argument. But it will be a mistake to think that Somalians can just 199 as aptly take care of the needs of their own without help from, say, Swedes and others as well-off. Precisely because the special duty behveen co-nationals is generated in the first place by a general duty on the part of all humanity, the duty to aid Somalians reverts to the rest of liumanity should their co-nationals be unable to rise to this demand. In showing how national commitments can be derived from a universalistic standpoint, Goodin only needs to show how i: is possible for such special commitments to have universalistic underpinnings. That they d o not hold occasionally only shows, and this is Goodin's point, how the duty allocation has failed in those particular instances and why, therefore, others are morally obliged to pick up tlie slack. And with regard to Miller's rebuttal that physical proximity and administrative ease are not good reasons for grounding special duties between co-nationals because there is no "- connection" between proximity, administration and nationality, the universalist need only suggest that there is nonetheless a strong contineent association between nationality and physical pro~imity.~' Indeed we may remember Miller's own account of a nation - - a territorial component was an important criterion for nationhood in Miller's own view (pp. 24-25; also Chapters 4 and 5 here). Thus surely Miller has to concede that physical proximity is one factor tlie universalist could appeal to in showing wliy allocating special duties to co- nationals is efficacious. As a matter of fact, many special duties are in force only between co-nationals residing in a geographical space (or duties between citizens and even permanent residents who are not of the same nationality). For example, a German national who renounces her German citizenship and migrates to Canada 110 longer enjoys special rights vis-i-vis her fellow German nationals -- she is no longer entitled to welfare, health-care, education and so on from Gcrman tax-payers. She still retains her German nationality, ethno-culturally speaking, but that in itself does not guarantee her any special rights among Germans; on tlie contrary, Canadians are now expectcd to assume these special duties towards her. We see, therefore, that a universalistic approach can comfortably justify special duties among co- nationals. But more importantly, given its method ofjustification it can also simultaneously endorse an 200 egalitarian theory of global justice. When the assigned duties are appropriately fulfilled, the universalist can accept the idea that co-nationals take priority -- this is after all a very efficient way of dividing up our duties. But wlien things go awry, wlien those assigned tliese special duties fail in tlieir tasks, tlien these duties become universal duties once more and must be fulfilled someliow or reassigned. In a world in wliicli many nations and countries are less than able to adequately fulfil their duties for reasons bevond their control (tlie global economic structure being an example of one of tliese reasons) to tlieir own peoples, it is evident that tliese responsibilities should be transferred or reassigned to countries or institutions more capable. If defenders o f t h e "priority thesis" insist that even in such a condition of drastic inequality co- nationals must take priority, then it is they wlio contradict ordinary morality. Ordinarily, we d o accept that one's own take priority but only against a background condition that is more or less equal.74 We will say, with Bernard Williams, that all things equal it is permissible (and indeed perhaps obligatory) to save one's own cliild even iftliis means letting another die.'s But surely our moral intuitions say sometliing quite different if it is a matter of killing another cliild in order to save one; or if it is a matter of providing your cliild with new toys against letting your neiglibour's starve to death. It is not difficult to sliow tliat giving priority to co-nationals (especially in the case of affluent nations) is more akin to the latter set of examples than the former. Given current global realities then, it is the view that compatriots (especially of amuent nations) take priority wliicli is absurd and indefensible. But if we understand tliese special co~nmitments to be instrumental in the above sense, then we can see why they can be overridden for the sake of universal duties in times wlien special and general duties conflict. What 1 have said above applies as well to special duties between citizens. An ethical universalistic position can justify special ties between citizens along tlie same lines noted above; and likewise it will hold tliat tliese special duties are secondary to tlie more basic universal duties which generated them. Hence, while it is reasonable to say tliat one has special duties to one's fellow citizens, 20 1 these special duties can be overridden by the universal duties one owes to human beings at large. In sllort, the ethical universalist can be committed to both local and universal goals and yet be able to prioritize these goals in a principled fashion. So Miller's claim that "obligations corresponding to these basic rights turn out to fall primarily on co-nationals" and that foreigners are therefore not placed under an equally strong obligation to fulfil these rights when co-nationals fail in their duties (pp. 76-77,79-80) turns out to be only partly right. It is true that obligations to protect the basic rights of nationals or citizens fall primarily on co-nationals or fellow citizens. But if this is because making co-nationals the primary bearers o f duties is one effective strategy of dividing our moral labour, then non-nationals are under as strong an obligation to perform these duties when co-nationals fail in their respective undertaking. These unperformed duties revert to the rest of humanity and remain as binding and salient as before. To be sure, such duties may have to be reallocated before they can be successfully performed, but this only sl~ows that tlle international society has the immediate obligation to reassign these universal duties to some one or institution, which is very different from saying that they may be left unfulfilled." I have countered the claim that co-nationals ought to take priority, especially given the present state of our world. But would my normative view not overtax our "strains of commitments"? Perhaps what is at the base of arguments like Miller's, at the end ofthe day, their appearance notwithstanding. is tlle question of what we can renlisticall\j rather- expect of individuals. Rawls's has explicitly expressed doubt here in a recent lecture: "Another reason for not extending the difference principle to the law of peoples is that the motivational support for following it presupposes a degree of affinity among peoples, and a sense of social cohesion and closeness, that cannot be expected even in a society of liberal peoples -- not to mention in a society of all just m d decent peoples -- wit11 their separate languages, religions, and cultures."77 If it is sheer futility and wishful thinking to realistically expect people to acknowledge that they have duties to strangers, is all our talk of global justice not mere speculation then? 202 Would liberal states themselves, ironically, not find the strong egalitarian demands o f liberal globalism so burdensome as to compel them to withhold any assent to such a global ideal even if this means retracting also the liberal demand that nonliberal states respect the liberties of their citizens? So, is my earlier enthusiasm that a comprehensive global theory can better win global endorsement than can political liberalism too quickly voiced? I shall examine the viability of global egalitarianism and the other ideas argued for in this dissertation in the final chapter. ENDNOTES 1. John Rawls, A Theorv o f Justice (Cambridge: Harvard Univ. Press, 1971). p. 204. 2. Amy Gutmann, quoted in Steven Lukes, "Equality and Liberty: Must They Conflict?" in-l Tlleorv Today, ed. David Held (Stanford: Stanford Univ. Press, 1991): 48-66, p. 52n. 3. Tlie hvo principles are: 1) Each person is to have an equal right to the most extensive basic libeay compatible with a similar liberty for others, 2) Social and economic inequalities are to be arranged so that they are both a) to the greatest benefit of tlie least advantaged, consistent with the just savings principles, and b) attached to offices and positions open to all under conditions of fair equality of opportunity (-, p. 302). 4. Rawls, Political Liberalism (New York: Columbia University Press, 1993). pp. 6-7. Tlie two principles are modified sliglltly in Political Libenlisni. See Rawls's explanation of these cllanges in-l Liberalism, pp. 291-92. 5. John Rawls, "Tlie Law o f Peoples," in On Human Rirlits, ed. Stephen Sliute and Susan Hurley (New York: Basic Books, 1993): 41-82, pp. 51-52. Because this chapter frequently cites "The Law of Peoples" and Political Liberalism, subsequent references to these works will be note in parenthesis in tlie text itself. "The Law of Peoples" will be denoted by LP, and Political I.iberalisni by PL. 6. Fortlie former, see Kai Nielsen, "Capitalism, Socialism and Justice," in And Justice for All, ed. Tom Regan and Donald VanDeVeer (New Jersey: Rowman and Littlefield, 1982): 264-286; for tlie most famous example of tlie latter, see Robert Nozick, Anarchv. State and Utopia (New York: Basic Books, 1974). 7. For counter objections to the claim that liberal egalitarianism does not go far enough, see Will Kymlicka, Contemnonrv Political Philosoohv: An Introduction (Oxford: Oxford Univ. Press, 1990). pp. 85- 90; for counter objections to the libertarian position, see his chap. 4. 8. m. p. 61. These primary goods are indisputably lacking in a very plain way for many individuals in the world today. For a quick survey o f tlie question "Equality of Wiiat", see Frank Cunningham, The Real World of Democncv Revisited (Atlantic Highlands, N.J.: Humanities Press, 1994). pp. 63-65; and his references, especially G.A. Colien, "On tlie Currency of Egalitarian Justice," 9914 (1989). 9. This last point suggests tliat Ikuy could be understood as a comprehensive liberal conception which Rawls now rejects. This is not an unfair suggestion for Rawls liimself admits as much: "Althougli the distinction between a political conception of justice and a compreliensive philosopliical doctrine is not discussed in m, once tlie question is raised, it is clear, I think, that the text regards justice as fairness and utilitarianism a s compreliensive, or partially compreliensive, doctrines" (PL p. xvi). 10. United Nations Human Development Program: Human Develooment Renort 1996 [New York: Oxford Univ. Press, 1996). p. 20. I I. Amartya Sen, Povertv and Famines: An Essav on Entitlement and Deerivation (Oxford: Oxford Univ. Press, 1981), Chap. I . 12. It is commonplace tliat "[wlith only 4.5 percent of the world's population, tlie United States uses about 25 percent of tlie earth's resources and contributes more than 20 of global eniissions of carbon dioxide". Paul R. Elirlich etal., "No Middle Way on tlie Environment," The Atlantic Mont11l.j Dec 1997: 98- 104, p. 104. 13. As Sen notes: "It is, of course. quite a different matter [from liolding them distinct] to recognize that inequalityand poverty are associated with each other, and to note that adifferent distribution system may cure poverty even without an expansion of the country's productive capabilities." Sen, p. 15. 14. Garrett Hardin, "Lifeboat Ethics: The Case Against Helping the Poor," in World Huncrer and Morality, ed. William Aiken and Mug11 LaFollette, 2nd ed. (New Jersey: Prentice Hall, 1996): 5-25. For one rejection o f this view, see Nielsen, "Global Justice, Capitalism and the Third World," in Justice and Economic Distribution, ed. John Arthur and William 1-1. Sliaw, 2nd ed. (New Jersey: Prentice Hall, 1991): 228-24 1, pp. 229-232. 15. Jean Dreze and Sen, Hunrer and Public Action (Oxford: Clarendon Press, 1989). pp. 3-4 16. Henry Sliue, Basic Rialits: Subsistence. Affluence and US Foreirn Policy, 2nd ed. (Princeton: Princeton Univ. Press, 1996). 17. See, e.g., Onora O'Neill, Faces of Huncler: An Essav on Povertv. Develooment and Justice (London: George Allen and Unwin, 1986), chaps. 7 and 8. She says, "[A] Kantian conception of material justice would begin with ways of organizing both production and distribution to meet needs, including material needs, which destroy capacities or power to act autonomously." p. 149. See also Robert N. Van Wyk, "Perspectives on World Hunger and the Extent of Our Positive Duties," Public Affairs Ouarterly 212 (1988): 75-90. 18. See Peter Singer, "Famine, Affluence and Morality" in World Hunzer and Moralitv: 26-38. 19. Rawls, m, pp. 100-01 20. Only a short section (pp. 377-382) in that massive work touched on global issues, and even then mainly the question of conscientious objection to war. 21. Pogge, Realizin~ Rawls (Ithaca: Cornell Univ. Press, 1989), p. 247. Also Beitz, Political Theory and International Relations (Princeton: Princeton Univ. Press, 1979). Beitz treats natural resource endowment in the global scenario to be akin to one's natuml talents in tlie domestic, and therefore no inequality resulting just because of natuml resource distribution is permitted at all in his view. Tlie detailed differences between Beitz and Pogge, and between the different approaches to liberal global justice identified above, are important but they do not affect the general discussion in this chapter and so need not detain us. 1 save discussion ofthese different views for another time when a more in-depth exploration of global distributive justice will be undertaken. 22. Pogge, "An Egalitarian Law of Peoples," Philosonl~v and Public Affairs 2313 1994: 195-224, pp. 213-214; "Bounds of Nationalism," MS. 23-27. 23. Owens Bowcott, "Wlien Work is the Lesser of Two Evils," The Guardian Weekly 26 Oct 1997, p. 8. 24. James Cooper, "Child Labour: Legal Regimes, Market Pressures, and the Search for Meaningful Solutions," International Journal L1113 (1997): 41 1-30, p. 429. 25. Pogge, "An Egalitarian Law of Peoples," pp. 213-14. 26. Thomas Pogge, "An Institutional Approach To Humanitarian Intervention," Public Affairs Quarterly 611 (1992): 89-103, p. 100; p. 93. 27. A n important question concerns tlie limits to any global distributive principle. Some liberals worry that rather than feel obligated to act on demands issuing from the demands of a global distributive principle, people from wealthy countries may feel overburdened by this demand and so "reject tlie view that they liave any obligation at all." Ian Sliapiro, "A Note on the Philosophical Psycliology of 'ought Implies Can'," in NOMOS LCI: Global Justice (New York: New York Univ. Press, 1999), MS 4. A detailed study of this question requires more space than I liave, altliougli I consider one common argument for limiting global justice in the last section of tlie present chapter. 28. Rawls, "Tlie Law of Peoples," p. 76. In a follow-up lecture on tlie law of peoples, "Philosophical I'rob~ems oftlie Law of Peoples," Rawls says more explicitly: "We must hold in mind that our world. with its many societies burdened by unfavourable conditions and many injustices and evils, is not a world in which the duty of assistance has been fully satisfied" (Princeton University, 1995, MS. 80). For 1993-94, Canada, for example, contributes only 0.15% o f its GNP to Overseas Development Aid (ODA), and the United States only 0.04%. both are far off the modest 0.7% mark suggested by the United Nations.-n Develo~ment Recart 1996, p. 199. 29. Nielsen. "Global Justice," pp. 228-41. 30. Pogge, "An Egalitarian Law of Peoples." pp. 199-205. 31. See Lynn H. Miller \rho notes that "[bly 1980, the top 43 economic actors in the world were MNCs and not states." Miller, Global Order (Boulder: Westview Press, 1994), pp. 146, 146-148. 32. As has been suggested by many including the Prime Minister of Malaysia Maliatliir Moliamad. See "Free Market Derails Nations, Malaysian PM Charges," The Globe and Mail 25 Nov 1997 A12) 33. As proposed, say, in Principle 9 ofthe Rio Summit's Aeenda 21. See The Global Partnership for Environment and Develonment: A Guide to Aeenda 21 (New York: United Nations, 1993), pp. 3ff. 34. Andrew Belsey, "World Poverty, Justice and Equality," in International Justice and the Third World, ed. Robin Attfield and Barry Walkins (London: Routledge. 1992): 35-49, pp. 47-48. 35. Sliuc, p. 180, my stress. 36. Recall Rawls's "fact of reasonable disagreement"; see Chap. 2 in this dissertation. 37. T o recall Rawls's two-stage original position, see Chap. 2. As Pogge argued. if Rawls treats delegates to the original position as being concerned with the well-being of their citizens and also cognizant of tlie connection behveen global inequality, poverty and internal inequality or corruption, he \rtould see that they would adopt a global theory ofjustice with a strong egalitnrian component. Pogge, "Egalitarian Law of Peoples", pp. 210-1 1. 38. Pogge, "Egalitarian Law of Peoples," p. 218. 39. There are exceptions of course. India is poor and underdeveloped thougl~ constitutionally a liberal-democracy. But sucli exceptions do not affect my point -- these poor liberal- democracies will all the more want a more egalitarian liberal global order. 40. This is, in fact, tlie case in the real world -- developing nations (which are often nonliberal) are calling for changes in the global economic structure, for a more equitable distribution of the world's wealth between countries, for the free transferring of teclinology from tlic rich to poor nations and so on. They, it is apparent, want a global distributive principle of some sort. 41. Pogge, "Egalitarian Law of Peoples,'' p. 218. Again, witness the reluctance of liberal states to affirm such a global ideal as expressed, say, by the right to development, proposals in the Rio Sulnmit in I992 which called for free transfer of tecl~nology to developing countries in exchange for resources estracted there, and international regulations on seabed mining. See Pogge, "Bounds of Nationalism" for an account of the latter. 42. See, e.g., Stanley Hoffman who says that Rawls's law of peoples is inlplicitly a modus vivendi rather than a real consensus around liberal justice. Hoffman, "Dreams of a Just World," New York Review of Books (2 Nov. 1995): 52-57. To recall the difference behveen being stable with respect to justice and a modus vivendi, see Chap. 2. 43.1 insert the parenthesis so as to not prejudice my discussion. I have not shown why tlie Rawlsian second principle should befuat equal opportunity principle for con~prehensive liberals rather than some other alternative. The purpose here was to show that the political liberal cannot endorse this or any principle explicating the idea of equal opportunity. 44. Just to recall, the basic liberties covered by the First Principle are "political liberty (the right to vote and to be eligible for public office) together with the freedom of speech and assembly: liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property: and the freedom from arbitrary arrest and seizure as defined by the concept of the rule of law." Rawls, -,p.Gl. 45. Rawls, m. pp. 204-05. 46. Some liberals have made the stronger argument that political liberalism has to abandon even Rawls's tirst principle. For example, David Dyzenliaus says that "reasonable people will disagree with the claim that the limits of the right -- the limits of public reason (as Rawls would put it) -- sl~ould be set as political liberalism wants them set." Dyzenhaus, "Critical Notice: Charles Lamlore, The Morals of Modernitv," Canadian Journal of Pliilosonliv (MS. 20, forthcoming). I leave this matter aside here. 47. As has been pointed out to me, these are "different orders" of trade-offs: the first appeals to self- interest, tlie second to morality. While an appeal to moral consistency may move philosophers, whether sucli an appcal is sufficient to motivate state policies remains to be seen. I return to this point in the next chapter. 48. For discussion on libertarianism and equality, see Section on "Liberty and the Market" in Justice and Economic Distribution. 49. Lynn H. Miller, p. 137. 50. Ibid.. pp. 137-38 51. The above discussion borrows from L. Miller, pp. 140-43. 52. See, e..g, the stark scenario reported in "Across Asia, a Pollution Disaster Hovers", The New York Times 28 Nov. 1997, A l . 53. Cunningham, p. 152n. See also his references. The strains he speaks of are now being revealed in some of these economies. 54. L. Miller, pp. 239-40. 55. See, again, "Free Market Denils Nations, Malaysian PM Charges." Others have asked "what is the IMF for -- to help the people of Asia, or Wall Sheet and the American multinationals?" Larry Elliot, "On Collision Course with Disaster," The Guardian Weekly, 18 Jan. 1998, p. 19. 56. United Nations Development Program Human Development R e ~ o r t 1996, p. 59. Tlie Gini Coefficient ranges from 0 to I, wit11 0 being perfect equality and I complete inequality. The report also notes that income inequality has risen in Mexico since it began to liberalise its economy, and in Chile as well. 57. For one reporter's account of how "[c]apitalism works only for the few in today's Russia," see David Hoffman, "Only the E l k Benefit in 'People's Capitalism," The Guardian Weeklv 25 Jan. 1998, p. 15. 58. Noam Cliomsky, World Orders Old and New (New York: Columbia University Press, 1994). p. 129. According to Elirlicli et al., "In 1960 the ratio ofthe income of the richest 20 percent of humanity to that of the poorest 20 percent was 30:l; ... it was nearly 80.1 in 1994" (p. 104). These ratios are between tlie average income in the richest versus tlie poorest countries, hence signiticantly understating income inequality among human beings. For an accessible account of how the IMF's 'adjustment' program supports world capitalism to tlie advantage of tlie rich countries and destroy tlie lives of many in the third world, see Paul Vallely, Bad Samaritans: First World Ethics and Third World Debt (London: Hodder and Stoughton, 1990), cliap. 5. 59. Giovanni Andrea Cornia et al., Adiustment Witli a Mumm Face: Protecting The Vulnerable and Promotinr Growth (A Studv bv UNICEF), (New York: Osford Univ. Press, 1987), p. 288. See especially chapters 1,2, 15 and 16. 60. Andrew Higgins, "Washington Shatters Asia's Dreams," The Guardian Weekly 25 Jan. 1998, p. I . 61. Consider tlie following figures to have a rough idea of the amount involved: "In the years from 1980 through to 1987, developing countries paid more than $10.5 trillion in interest on their external debt. Brazil and Mexico paid more than $70 billion eaclch. The twelve largest developing country borrowers paid $325 billion in interest. These are stupendous sums. And they represent interest alone. Since 1984 there Itas been a real transfer of resources -- wealth -- from poorer countries to richer ones, from tlie developing world to the developed world. The cumi~lative net transfers in the five years from 1984 througl~ 1988 amounted to $143 billion." Seamus O'Cleireacain, Tliird World Debt and International Public Policv (New York: Praeger. 1990). cliap. 1, p. 3. For a normative assessment of the origins ofthe debt crisis, see Paul Vallely, especially chapters 4 & 5; see also Barry Wilkins, "Debt and Underdevelopment: Tlie Case for Canceling Third World Debts" in ed. Robin Attfield and Barry Wilkins, International Justice and the Tliird World (London: Routledge, 1992): 169-192. 62. United Nations Development Program Human Development Report 1997, (New York: Oxford Univ. Press, 1997), p. 86, Box4.2. 63. One well-documented appalling case of governmental intervention in a weaker country on behalf of corporate interests is United States's intervention in Central American countries. For one criticism, see Stephen Sclilesinger and Stephen Kinzer, Bitter Fruits: The Untold Stow oftlie American Couo in Guatemala (New York: Anchor Books, 1983). 64. David Miller, "In Defence of Nationality," Jownal of A ~ ~ l i e d Philosodiv 1011: p. 5. 65. David Miller, On Natianalitv (Oxford: Oxford Univ. Press, 1995). p. 50. References to this work shall henceforth be cited in parenthesis in the text. 66. So "lie is my brother" can be a principle for action for tlie ethical universalist if this principle is derived (and not basic) from a more universal claim, perhaps one which says that persons are in a sort of contractual relationship with their siblings, or it is expedient from a universal moral point of view tliat each one of us gives special considerations to those whom we know intimately. Recall my discussion in Chap. 5. 67. Miller explicitly rejects the second principle as a global ideal on p. 108. 68. Charles Beitz, "Sovereignty and Morality in International Affairs." Political Tlieorv Today, ed. David Held (Stanford: Stanford Univ. Press, 1991): 236-254. p. 253. See also Kymlicka, Liberalism. Comrnunitv and Culture (Oxford: Oxford Univ. Press. 1989), chaps. 4 and 5. 69. Thomas Hurka, "The Justification of National Partiality," in The Moralitv of Nationalism, ed. Robert McKim and Jeff McMalian (Oxford: Oxford Univ. Press, 1997): 139-157, pp. 143-144. 70. Robert Goodin, "What Is So Special About Our Fellow Countrymen?" Ethics 9814: 663-86, p. 685. Cited also in Miller, p. 62. 71. Goodin, p. 679. 72. That is, tlie instrumental approach has the option of arguing that it is efficient to assign people to be primarily responsible for their fellow citizens for a variety of reasons -- proximity, administrative ease. contractual relationship and so on. A communitarian approach like Miller's which stresses deep enduring ties and common ends as tlie bases for special duties cannot be as easily extended to cover the case of citizenship in a diverse society. 73. Goodin's strategy does not need anything stronger than contingent clainls about nationality. Indeed for any instrumental justification of particular duties, it is precisely because it is contincently true tliat assigning some with special duties facilitates tlie fulfilment of universal duties. 74. Pogge, "Bounds ofNationalism." MS. 3-12. 75. Bernard Williams, Moral Luck (Cambridge: Cambridge Univ. Press, 1981). Chap. I . 76. Daniel Weinstock makes an interesting counterpoint against the national priority argument, that the idea that foreigners may count for less can have corrosive effects on our views about justice between co- nationals. Weinstock, "National Partiality: Who, What, Why?", Montreal~Toronto Colloouium. Department o f Philosophy, University of Toronto, 6 March 1998. Allowing us to ignore the plight of foreigners may dilute our empathy and feelings of solidarity with co-nationals within our own borders, particularly so in an increasing competitive world. 77. "Philosophical Problems with the Law of Peoples," MS. 82. CHAPTER EIGHT FROM THEORY TO PRACTICE In this final chapter, I shall present the beginnings of some arguments to support the practicability and feasibility of the normative global theory I have been defending. To begin, let me offer a quick review of the central points made earlier. I argued that a global theory of justice should be based on libenlism understood comprehensively rather than politically. The reason for this is not just that political liberalism fails qua global theory, but more importantly it fails even as a general liberal political morality. The main fault we found with it was that it has too relaxed a criterion for liberal toleration. In treating toleration as the more fundamental liberal value than the ideal of individual autononly, political liberalism compromises individual liberty and freedom, a s when it grants toleration to certain nonliberal (but 'reasonable') cultural and societal practices. I showed next that a global theory based on comprehensive liberalism, because it conceives individual autonomy as the fundamental liberal value, is more willing to take a stance against oppressive national cultures and state regimes, and so is more fully committed to protecting the rights of individuals universally. It will therefore be critical ofthe idea of state sovereignty as this is currently practised and understood in international relations. But a comprehensive liberal theory of global justice is not one which is radically cosmopolitan in the sense of being unreceptive to the idea of pcoples' rights (e.g., the so-called third generation of human rights) as is commonly believed, a belief no doubt fuelled by the hostile reception of these group-based rights by certain nominally liberal countries. Many liberal theorists have argued, contrary to this common liberal practice, that to the extent that cultural membership has (intrinsic andlor instrumental) worth for individuals, culture is an important liberal good. And granting some cultures special consideration (by way of group-differentiated rights) does not offend liberal equality if the reason for this consideration is to compensate for the unequal conditions against which 211 different cultural groups interact. Extending this line of argument to the global context, we saw easily why the idea of peoples' rights can and ought to be endorsed by libemls. Finally, I returned to Rawls's political liberalism and showed that its failure to propose an egalitarian global theory is not merely a contingent omission but has its source in how political liberalism regards the principle of toleration. Rawls's protest notwithstanding, I showed tliat in his move towards political liberalism, he abandons his commitment to social and economic equality which was the hallmark of his earlier liberal theory ofjustice. 1 concluded that a comprehensive liberal theory retains this egalitarianism and will therefore insist on reforming the global basic structure which currently sustains and widens the inequality between countries. We will now turn to the question: Can these proposed ideals be implemented in the real world? Universality: Origin and Application It is often said that liberalism stems from a specific cultuml and historical tradition, and hence its claim to universality is not only culturally biased but also impracticable. This point is often invoked by leaders of illiberal and nonliberal states to deflect criticisms oftheir restrictions against liberty. And as we saw, the beliefthat it would be unreasonable to expect all societies to embrace the ideal of individual autonomy domestically was Rawls's reason for proposing that a liberal global theory be sufficiently general so as to not hold this expectation of all societies.' As critics of liberal universalism like Bliikhu Parekh have pointed out. "Liberals find such restrictions [of individual liberty] unacceptable, but most members of traditional societies do not. Unless we assume that liberalism represents the final truth about liu~nan beings, we cannot indiscriminately condemn societies tliat do not conform to it."' Even philosophers partial to liberal democracy have denied its universality. Richard Rorty, for example, wants "to replace both religious and pliilosopliical accounts of a supraliistorical ground or an end-of-history convergence with a historical narrative about the rise of liberal institutions and custom^."^ 212 Indeed, Rorty thinks that "liberal institutions would be all the better if freed from the need to defend themselves in terms of such foundations -- all the better for not having to answer tlie question 'In wliat does the privileged status of freedom consist?" Applying his brand of anti-foundationalism to the global context, he "urge[s] tlie construction of a world order whose model is a bazaar surrounded by lots of exclusive private clubs." In tlie face of diverse, and presumably nonliberal, societies, liberals are advised to "smile a lot, make the best deals you can, and, after a hard day's haggling, retreat to your club."s But this common rejection of tlie universality of liberalism contmits the fallacy o f equivocation by conflating two different senses of universality. It begins from the premise denying the universality of the migins of liberalism to the conclusion denying the universality of its anolication. But clearly, non- universality in the former sense need not entail non-universality in tlie latter. A political morality starting from a particular and specific historical or cultural origin need not thereby be confined to that context in its application. As a matter of Eict, one of tlie aspirations of liberalisni is its universalising tendency; it is a political morality which aspires to include within its mom1 community as much of tlie community of humanity as possible. Joseph Carens puts this point neatly: "the fundamental question is not really what do & think is right, but rather wliat we [libemls] do think is right ....& conceptioii ofjusticc includes respect for cultural difference as one of its components, but one tliat is balanced against concerns for human rights and gender equality among other things.'" Or a s Charles Beitz writes, "One might say that we are compelled to take a global view in matters of social justice by features- to our conceptions of moral personality, however parochial it may be."' This universalising aspiration itself could be Iionie- grown but this fact alone does not tell us anything about whether it is or is not realisable. So, while it is right to claim with Rorty and Parekli tliat liberalism has its roots in a specific historical or cultural contest (e.g., the Enlightenment and the philosophy of, say, Kant or Mill) and so does not rest on universal first principles or a final truth about human nature, it would be too hasty to enjoin with them tliat liberalism cannot therefore have universal scope. That tlie purported aliistorical and 213 universal first principles of liberal theory llave been found wanting does not necessarily undermine the potential universal applicability of its ideals; the question concerning the implications of these principles for other societies remains pertinent. Thus, as Will Kymlicka has argued, those who deny the universal relevance of liberalism llave unduly foreclosed the argument. The crucial question is not where our moral world begins (this a s a historical fact is hard to dispute) but where it could end.' We do not need to pretend to have started from first principles; we can admit that we must begin from where we are situated but nonetheless strive to see what kinds of universal principles we can infer from our specific starting points. One might insist that the origins of a belief confine both the belief and those who harbour it in such a way that the terms used to express the belief retain their meaning only in that very context within which the belief originated. To bring these terms outside their respective sites of origin is to take them out of their meaning-inducing context and hence to render them quite meaningless. This objection is somewhat analogous to that which denies the distinction between the "context of discovery" and "context ofjustification" in the natural sciences. I sliall however ignore such a radical relativistic view leading as it does to a tl~orougl~going skepticism even regarding the most mundane of beliefs, each of which must have some unique historical origin. It implies that ideas like liberal-democracy, liberty, individual rights and freedom are non-translatable. that the very terms which express these ideas are meaningful only within very specific historical and social contexts. That this is quite i~nplausible and in fact unrea1is:ic needs no saying? This distinction between universal origin and universal application is also evident in Rawls, altliougl~ he puts the distinction in terms of universality and universal in r e a ~ l i . ' ~ In what lie calls the 'constructivist view', liberal principles need not begin from "universal first principles having authority for all peoples everywhere and holding of moral necessity in all cases."" Rather, constructivism works outwards from a particular context (in this case that of a liberal domestic society) to the global context by 214 examining how a set of locally conceived ideas can be generalised in order to liave universal application, to liave universal reach." "Thus, a constructivist liberal doctrine is universal in its reach once it is extended to give principles for all politically relevant subjects, including a law of peoples for the most comprehensive subjects, the political society of peoples."" That is, once successfully extended with the appropriate modifications, liberalism can claim universal status; we will have arrived at universal principles from our very specific (cultural) starting point. Returning to Rorty's bazaar metaphor, in haggling with the members of the other clubs in his global bazaar, Rorty himself is doing no less than attempting to extend the boundaries of liis mom1 community. He wishes to sway members of tliese other "exclusive" clubs to join his club and to appreciate the liberal values and ideals it affirms. The real difference between Row's approach and Rawls's constructivism is tliat Rorty thinks that we should not attempt to extend our moral community by searching for universal principles for lie believes tliat there is none to be found. Instead, he fcels tliat a more fruitful approach is to inculcate in others the appropriate kinds of sentiments, specitically, the types of sentiments cherished by liberals." But while Rorty is right to remind us of the importance of cultivating the right sentiments in people in our quest for a better world, lie is mistaken in hoping that we can do this without any appeal to principles. What sorts of sentiments are we talking about here? How do we critically reflect on these sentiments? How can we promote them in a consistent and principled manner? And llow do we justify our efforts -- to ourselves and others -- and our belief that we are right in cultivating these sentiments universally? Just saying "because it is our belief' or "tliis is llow we have been brought up to feel" does not take the liberal vision very far. It is patent that tliese questions cry out for a guiding principle of some sort, a principle assumed to be universally valid because oftlie global scope of the liberal project. In short, the project of instilling a universal sentiment of humanity necessitates a concurrence on some universal guiding principle. So, to my mind, Rorty's plea that we help fonvard the progress of liberal 215 sentiment tells only part of tlie story. Sentiment-raising speaks only to our strategy, but does not define or justify our goal.I5 Here it might be said on Rorty's behalf that universal p r i n c i p l e s e e defended by appeal to philosophical foundational claims of which Rorty insists there are none to be had. Thus unless I produce tlie pliilosophical underpinnings oftlie universalism I am advancing, I am merely pushing tlie debate back one step. There are two responses available to tlie universalist liberal here. First, there is no necessary relationship between a belief in universalizability and a belief in foundationalism. Ernesto Laclau, who supports tlie anti-foundationalism of Rorty, argues nonetheless tliat "tlie impossibility of a universal ground does not eliminate its need. It just transforms tlie ground into an empty place that can partially be filled in a variety of ways."" In plainer language, even if there arc no foundational pliilosopl~ical truths, we still need a standard (a "beyond" as Laclau puts it) to define tlie limits of pluralism; and we can find this in a general consensus among differences, "a universality reached through equivalence [between particular demands]," and which gets its contents tllrougli particularistic expressions." Secondly, even if tlle universalistic aspirations and principles of liberdism must necessarily rest on some foundational claims, just because these claims are not (yet) substantiated, it does not follow that they will never be obtained. That many prominent liberals (Kant and Mill liistorically, and Ronald Dworkin currently) have attempted to base tlie universalism of libcraiisni on foundational theories suggests tliat such a quest cannot be as blatantly misguided as Rorty thinks. Indeed these attempts are very much integral to tlie tradition Rorty himself defends and in terms of which he defends his own (liberal) b e l i e k So unless Rorty risks becoming a relativist unable even to appeal to his own tradition, he must entertain more seriously these attempts to ground liberalism. As Frank Cunningliam argues, "Surely these [realist or foundationalist] tenets have not been 'weeded out' [contra Rorty] but continue to inform tlie efforts of a great many of the world's pliilosophers [including those in Rorty's own tradition]."" We may thus turn tlle table on Rorty and leave him to show us how lie could reject tlie philosopl~ical underpinnings 216 of his tradition witliout jeopardizing liis confidence in that tradition itself. Even Rawls, as we saw, acknowledges that tlie compreliensive pliilosopl~ical claims of liberalism cannot be avoided entirely, that to defend liberalism ultimately, one may need to resort to invoking the foundational claims. Parekh, unlike Rorty, rightly acknowledges the need to appeal to universal principles: "The dissenters, the oppressed minorities and the ill-treated masses of tlie world over appeal to international public opinion for support, and we cannot respond to them without the help of general principles to guide our judgements and actions .... All this calls for a body of moral and political principles that are both universally valid and capable of accommodating cultural diversity and autonomy."" But Parekh thinks liberal principles, because they are culture specific, cannot fill this role. Instead, he believes tlie Universal Declaration of Human Rishts equal to tliis task. Now given Parekli's rejection of liberalism qua universal morality, his accession to tlie Universal Declaration is incongruous because the llniversnl Declaration itself has very strong libeml underpinnings (which Parekh himself notices). But Parekh agrees to its universality nonetheless because he believes that I) it was drafted and assented to by a large number of different countries, 2) it has been revised on the urgings of new (non-Western) members states via the introduction of the two International Covenants on Human Rights, 3) and it has been appealed to by the oppressed tlie world over. He went on to say that the general principles o f tlie Declaration, the most significant ones in liis view, are principles [wliicli] relate to vital human interests valued in almost all societies and haven genuinely universal core, such as respect for human life and dignity, equality before tlie law, equal protection of the law, fair trial and the protection of minorities. Liberalism does, o f course, deeply cherish and place great valuc on these principles, but they are not unique to it. They are found in classical Athens and Rome and ninny a medieval kingdom, are emphasized in tlie sacred texts of all great religions, and were widely practised in many non-western s~cieties.~' But all of tliis only shows that liberalism, despite its culturally specific origins, can become universal in reach and be universally assented to. That tliere is a convergence between libemlisin and other cultural views regarding "vital human interests" simply reinforces my contention that there is great 217 potential for reconciling these other views with liberalism, that liberal criticisms directed at political institutions which thwart these vital interests could become universally valid criticisms. Moreover, wc have seen how liberalism can be "capable of accommodating cultural diversity and autonomy" (contra Parekh). O f course, the liberal tolerance of diversity is going to be limited, but this limitation will be very similar to that imposed by the Universal Declaration. Again, the mistake it seems to me is that Parekli thinks that just because liberalism is culturally specific, it cannot have universal application and therefore must be distinct from the Universal Declaration in spite of the latter's undeniably liberal character. Parekh also refers to the tempering of the Universal Declaration by the introduction of the International Covenants, in particular the Covenant on Economic, Social and Cultural Riahts, a s evidence of how nonliberal countries have attempted to tone down the liberal bias in the Declaration. But I have argued that this Covenant is required by liberalism correctly interpreted and should not be thought of as a counter to liberalism. Thus, in the end, it is quite puzzling how Parekh could say that countries may "remain free to choose their own appropriate forms of [nonliberal] government'"' within the limits of the Declaration, when a wholehearted affirmation of the Declaration should enjoin a liberal democratic order of some form." My quarrel with Rawls's political liberalism was with its attempt to detach liberalism from its comprehensive moral commitments and not with his constructivist project per se. I rejected his claim that it would be unreasonable from a liberal view point to require all comprehensive views (including national cultures) to fully uphold the ideal of autonomy. Rawls's constructivism is already evident in A Theorv of Justice where liberalism was understood as a comprehensive ideal? Thus a comprehensive liberal conception can just as well adopt the constructivist approach. But instead of beginning from the belief that toleration is primary, it will start from its comprehensive commitment to individual autonomy, understood and acknowledced as a locallv conceived ideal, and endeavour to see how far outwards towards a universal law this ideal can be extended, and what the implications are of thus extending this ideaLZ4 The crucial question for our purpose, therefore, is not whether tlie liberal ideal of autonomy originated from a specific cultural context or from some universal truths, but whether this ideal can be incorporated into other (non-western) cultures, whether different cultures can provide their own foundations for the ideal of autonomy. We saw in Chapter G that cultural (or civilizational if we like) views generally thought to be inherently anti-individualistic (e.g., Confucianism) have within their own traditions beliefs about individual freedom and liberty. even ifthese beliefs are latent or not fully articulated. If it is correct tliat these individualistic ideals. and those of other vital human interests Parekli identifies, are present in most cultural views, then tlie liberal aspiration to extend the reach o f liberal morality is not liopelessly utopian nor culturally imperialistic. Admittedly, more work needs to be done here. How c3o latent individualism be Fully developed and nurtured to sustain tlie liberal ideal of autonomy? What are the different substantive forms political institutions can take witliin a liberal parameter? How are the needs of some individuals to be weighed against the needs of others? These questions remain to be answered. But these can be understood a s questions to be sorted out witliin a compreliensive liberal framework. The relevant point here is tliat the claim liberalism has a specific cultural origin is not by itself a sufficient argument against the universality of liberal theory. Also, none oftlie above presupposes tliat we can avoid tlie question of pl~ilosopliical Foundation for all cases, even if we can do so for the most part in practice (by appealing to conimonly shared touch- stone values, even if latent, or to some otlier extra-philosophical agreements). In extreme situations where liberalism is itself challenged (as when these touch-stone values are opposed), tlie comprehensive liberal is compelled to appeal to tlie philosophical foundations of liberalism (by appealing to Kant or Mill, e.g.) to defend her position (even if only to provide herself with a rationale or self-justification for putting down tlie cliallenge). But this need to rest ultimately on sonie foundational claim about 'truth' is something 219 no political philosophies can avoid (Dworkin). This includes the political liberalism of Rawls as we may well recall (Chapter 3). So if it is indeed the case that no such philosophical foundations are discoverable (assuming we grant Rorty his claim), political liberalism is no better off than comprehensive liberalism in this regard; in which case my thesis that comprehensive liberalism is to be preferred over political liberalism in general, and as a theory o f global justice in particular, is unaffected. Problems with Liberal Practice So the cultural particularity of liberalism is not necessarily an obstacle to its having universal applicability. If there is aproblem with liberalism in this regard, it has more to do with how liberalism is being practised than with how it has been c o n c e i ~ e d . ~ ~ Let me point out two common and serious flaws in liberal practice which have hurt its own global advancement. A) Cultural Insensitivity One of these practical flaws is the lack of cultural sensitivity on the part of liberals in their attempts to extend the reach of liberal morality. Given the uncritical self-assurance and sense o f cultural and moral superiority with which liberals enforced what they took to be universal truths the world over during the colonial era, the current opposition of nonliberal societies to the universalising posture of liberalism is quite understandable. T o be precise, there are no obviously and neatly demarcated cultural entities involved here. Few states, as we have stressed many times, are culturally distinct and homogenous. But the divide between the once colonial and dominating "West" and the colonised and subjugated others tends, nonetheless, to reflect a distinction between cultural types or at least a division between one (Judeo-Christian) civilisational view and all others. That the once dominant civilizational or cultural view is now nlso the one insistent on a universal morality unsurprisingly arouses the suspicion of cultural imperialism on the 220 part of once subject peoples.26 Unfortunately, this suspicion and scepticism about the universalising stance of liberalism is not assuaged by the manner in which some liberal states and even lion-governmental organisations criticise human rights violations today. The seemingly arbitrary and cultumlly biased (in the eyes of many nonliberal societies) preoccupation of liberal states and various Non-Governmental Organisations with selected civil and political rights to the exclusion of economic and social rights even when advances are made in the latter is a case in point. As one liuman rights scholar points out, Amnesty International, while greatly to be commended for its efforts, continues to "focus [only] on a very specific range of civil and political rig lit^".^' A Malaysian delegate to the United Nations illustmtes this complaint: "The North's persistent attacks o n China, for example, have ignored the fact that the nation's gross domestic product lias grown from $215 billion in 1986 to $817 billion in 1996. The number of people below tlle poverty line lias come down from 250 million in 1975 to 65 million in 1996. Possibly, never before in the field of human affairs has so much been done for so many in so short a time.'" Insensitive criticisms lend some basis to protests o f the sort voiced by tlle Indonesian Foreign Minister: we don't deserve to be put into a comer and to say, "You are a pariah nation and we must clobber you all the time because of East Tinior.' ... You can criticise us about human rights; no country is beyond criticism on human rights .... [But] we would prefer tliat you don't criticise us by shouting from the roofs, but that you sit down and as a friend say: 'Look, we don't like the way you do things. You better change because you are getting in trouble.'29 In the area o f gender rights, Islamic feminists are often "disheartened by the way in \vIiicli Arab and Muslim 'oppression' ofwomen is invoked in Western media and sometimes in scholarship in order to justify and even insidiously promote hostility towards Arabs and Muslims." As Leila Ahmad regrets, the "old story" is repeated or implied, even among Western liberal feminists, "tliat Arab men, Arab culture, and lslam are incurably backward and that Arab and lslam societies indeed deserve to be dominated, undermined, or wor~e."'~ As I mentioned in Chapter 6, such insensitive posturing feeds the common misconception that liberating Muslim women entails the wholesale rejection of Islam. 22 1 As a start, therefore, it is important that criticisms are offered not from a sense of cultural and moral superiority but from a genuine concern to assist oppressed individuals. Thus when criticising a society for violating rights, we must not give the impression that we regard all of its culture as unworthy. As we noted in Chapter 6, it is important that defenders of rights focus on specific cultural practices and not condemn an entire cultural way of life with a broad brush. Disregarding the culture of an entire people will simply put members ofthat community (even potential reformers) on the defensive and render any such critique counterproductive." Criticism need not preclude acknowledging the worth and distinctiveness of a cultural way of life. And where applicable, criticising shortcomings in some areas of a society should be complen~ented by an acknowledgement of progress and other positive aspects in other areas of that society." When a criticism is balanced by recognition ofand respect for a culture's worth, any concern that this critique is fuelled by a sense of cultural superiority is mollified. If it is correct that a consistent liberal stance must endorse the idea of cultural rights (or the rights of peoples), then liberalism has within itself the conceptual resources to ameliorate the (real or perceived) cultuml insensitivity in its practice. Liberals can remain committed to protecting individual liberty; but worries about cultural partiality in this regard can be offset ifthey are committed also to protecting cultural diversity, and demonstrate this commitment by supporting global institutions to this end. The commonly seen reluctance of liberal societies to endorse cultural rights must be overconie then. As for the concern that endorsing cultural rights may lead to contradictory commitments, we saw in Chapter G why this concern was largely unfounded. It is also "in~portant to refrain from moral and political judgements about disputes [over rights] until one has acquired detailed knowledge of local political circumstances and relevant cultural o~tlook."'~ Note that this is not an affirmation of Michael Walzer's stronger claini that only members can ever acquire the local knowledge requisite for sensible criticism (as discussed in Chapter 4). It is just that 222 often enough, well-intentioned criticisms are offered out of the larger social and cultural contexts, and nothing calls more into doubt the credibility and the sincerity o f a well-meaning criticism than if it distorts (even if unintentionally) basic (even if extraneous) facts. Failures to appreciate basic social and economic conditions o f a country before making recommendations can lead to absurd propositions. Take, as a grotesque example, the recommendation by an international organ that the Bhutanese government upgrade its prison facilities to include hot running water and other facilities commonplace in the developed world. "For a country that is not [even] in a position to provide basic necessities such a s safe drinking water, health care, and education to many o f its rural subjects, and whose prison guards live in huts without plumbing", it is not at all surprising that the insistence that prisoners be provided these luxuries "amazes the Bhutanese."" Local knowledge will also prompt liberals to look first to the specific traditions of respective societies for potential sources of reforms, which is an essential aspect of a culturally sensitive criticism. T o do otherwise, to suggest that others should accept our values & because we do (or for the salne reasons we do), is bound to attract the charge ofcultural imperialism and paternalism. But also, strategically speaking, reforms are more likely to succeed in the long term if they can find their basis and justification in the customs and beliefs of a given society itself. If our earlier observation that most cultural views, including those normally tl~ought to be inherently anti-individualistic, endorse (even if in some latent form) the ideals of individual freedom and liberty is defensible, the recommendation that we ought to appeal foremost to a culture's own tradition to find the strength for reform is feasible in most real world cases.)' We can see now that the real lesson to be drawn from exposing the cultural particularity o f liberalism is not that its application must be confined to its site of birth, but that liberals should exercise tact and caution in their attempts to universalise their morality, that they be less self-assured and unreflective when engaging other (cultural) points of view. So, unlike their colonial predecessors, liberals 223 today must adopt a more self-critical and tentative attitude. They sliould be ready to see fla\vs in their own views in light of what other views can tell them, and be prepared to admit mistakes and be ready to revise their commitnxents in light of new arguments or facts. Liberals do have plenty to learn from other viewpoints, and they have in recent times benefited enormously by heeding these lessons. As we saw, it was the communitarian challenge that provoked liberals to restore the community to its rightful place in their discourse. In the latter half of this century, the socialist objection inspired an egalitarian interpretation of liberalism. Feminist critiques too have moved liberals to examine certain issues long overlooked, like justice within the family and the question of free speech with regard to pornography. In the international arena, the stress many nonliberal societies place on individual responsibility, a point many liberal practitioners tend to miss in their zeal to protect individual rights, has likewise reminded liberal states of their practical failings with respect to cultivating responsible citizenship.'%~ie of these lessons compelled an abandonment of liberalism in its entirety; but they set in motion important revisions or debates within libeml tbouglit and practice, revisions and debates which have helped strengthen the liberal position by making it more alive to new agendas and challenges. B) Double Standards Another failing on the part of liberals which has undermined efforts towards a liberal global order is the double standards rife in liberal practice. Firstly, liberal states often turn a closed-eye to illiberal pmctices within their own or other so-called liberal countries. As 1 have mentioned, no societies, even if classified as liberal, are entirely without illiberal practices. Consider the citizenship policies of Germany and Japan which discriminate against some residents on the basis of ancestral birth; or consider the fact of systemic inequality, poverty and racial and gender discrimination in rich liberal countries like the United States and Canada. These illiberal practices and policies warrant criticisms as do illiberal pmctices in nonliberal states; yet we rarely see these failures in liberal countries addressed in global forums. Double standards of 224 tliese sorts call into question tlie intentions of attempts by liberal states to protect riglits elsewhere. Not doing enough against pervasive racism in liberal countries, for instance, underscores tlie developing world's perception and suspicion of racist undertones beneath rights talk; permitting gender inequality at home belies the sincerity of the West's efforts to promote tliat ideal elsewhere. Another common case of double standard is the granting of special amnesty or immunity to oppressive regimes favoured by dominant liberal states for trade or strategic reasons. By exempting these 'client states' from criticisms for their liuman rights abuses, and in assisting in tliese abuses in some cases, libeml states not surprisingly have lost much credibility in the eyes of nonliberal societies?' One troubling and familiar esarnple here is the United States's and Canada's willingness to overlook human rights atrocities in China for the sake of mutually beneficial trade deals." I t has often been suggested tliat trade cooperation is one way of beginning a dialogue on liuman riglits. This, arguably, could be so but tlie reality is tliat rights concerns are swept under the rug while economic and business interests are ente~~ained.'~ But, in my opinion, tlie most blatant failure to apply liberal standards even-liandedly is the reluctance of liberal states to confront global inequality. We saw in the last chapter why a commitment to global equality follows from a faithful application of liberal morality. Unfortunately, witness tlie rejection by the United States and other rich liberal states of the proposed right of peoples to developnient.jO The failure of many liberal states to come even close to meeting tlie United Nations' modest recommendation tliat developed countries contribute 0.7% of their GNPs to developmental assistance is another case in ~oint." It would be a different story if the reason for this omission were human riglits violations in potential recipient countries (and even then there are other avenues of more selectively providing aid, e.g., tlirougli Non-Governmental Organisations rather than through corrupt governments). But in reality, the situation is more often the other way around. Countries with (military) dictators and atrocious rights records often receive assistance from nominally libeml states to clampdown on democracy movements, 225 while fledgling democracies not only get cutoff from aid but are actively worked against." As long a s liberals refuse to address the problem of structural global inequality, their attempts to protect civil and political rights globally are not only going to be unsuccessful in the long-run, but the intention and sincerity of these attempts are going to be doubted by the less well-off (nonliberal) countries." So until liberal states expunge the double standards that have corrupted liberal practice, and, most significantly, accept the responsibility to combat global inequality as a matter ofjustice, the impasse between those who proclaim the universality of liberalism and those who reject it will remain. Towards a Liberal Global O r d e r Crucially then, a liberal global order would require more than political reforms within nonliberal and illiberal societies; it requires foremost a global setting in which rich and poor countries can come together as equals and with mutual trust and respect. Yet mutual trust and respect requisite for a more open global society are understandably lacking in a global order which conduces to the coercion and deception of vulnerable (i.e., the poor) countries. Attempts on the part of liberal states, which tend to be the ones benefiting from the present unfair arrangement, to protect individual liberty within the existing global framework will be justifiably read as self-serving and hypocritical and cannot win the consent o f t h e majority of the world. Thus, it is incumbent upon liberal societies to take the first step towards a global order conducive to liberalism. But why should rich developed countries take the plight of the poor seriously? Is my earlier conjecture that liberals will accept a liberal orderjust because it would be consistent with their morality perhaps too optimistic? Justice and- dictate a certain world order; but the question remains whether there is t h e m to take us there. Rawls famously stressed that a viable theory ofjustice must take into account the "strains of commitment", that we are to "avoid those agreements [on principles ofjustice] that [we] can adhere to only with great difficulty."" And he recently expressed the worry that applying his second principle of 226 justice to the global context will indeed overstrain our commitment to justice (Chapter 7). He shares the common belief that our moral concern diminishes with distance, that the world is just too large to be co- extensive with our sense of moral community5 Indeed some philosophers have asked whether our commitments are not already over-stretched in apluralistic liberal-democratic society. But allow me to beg offthis question (to examine this undoubtedly important point here would take us too far afield); let us assume that the solidarity requisite for a just society is evident within societies and struggle only with the more common notion that this sense of solidarity ends at our national borders. Granting this psychological claim about human nature, I want to offer a tentative argument why I think a vision of a liberal global order is not hopelessly utopian, why a liberal global community need not necessarily overstrain our commitments. The basis of my belief generally has to do with the fact that distances are no longer effective in morally insulating 'us' from 'them' in the modern world. In an increasingly interdependent and interconnected global arena, social, economic and environmental failures and exploitations are no longer the confined problems of isolated states but have severe repercussions beyond state borders. As Cunningham writes, "the first world is no longer able to isolate itself from its ecological and economic effects on the third. Exploitation of third world workers creates unemployment in the first world and the social and economic strains of forced migration. Destructive ecological practices are felt world wide."" It seems then that the demands ofjustice and those of self-interest are beginning to converge in a world rapidly 'shrinking' largely due to technological advances. Consider the case of global poverty. There arc considerable sclf-interested reasons why the rich North should be motivated to ameliorate this problem: "Poverty drives people to engage or acquiesce in ecologically destructive activities, for instance those leading to deforestation. Poverty also creates political instability wliicli obstructs cooperative worldwide action and, being war prone, fuels the diversion of much-needed resources into military expenditures, not to mention thc destruction caused by wars tliemsel~es."~' The large-scale destruction of rain forests (a destruction whose scale is made by 227 possible modem machinery) by poorer countries in South-East Asia and South America has devastating regional and even global environmental consequences. The world-wide social and economic effects and costs of any modem war need not be stated. As another illustration, the massive debt burdening many developing countries is not a problem for debtor countries alone but has severe economic repercussions for creditor countries also. It is now common knowledge that given the intricate nature o f the global economic system, "[tllie debt burden punishes [the creditor country's] economy as well. When developing economies are squeezed dry to pay off foreign bankers, less money is left to import products; according to some experts, the drop in [the United States's] export to Mexico alone since 1982 has cost at least a quarter of a millioli Americans their jobs."" While justice would demand writing-off much of the Third World debt, self-interest was catalytic in motivating creditors to begin negotiating for a mutual resolution to this crisis. We are, to be true. far from a fair resolution of the debt crisis, but that these negotiations are even taking place shows how prudence on the part of the developed world have necessitated their giving some consideration to the problems of the poor:q Concerns for the environment have also forced cooperative efforts and dialogue between the rich and poor. The now general realisation that all of humanity inhabits a single and very fragile ecological system, and that therefore the rich have a stake in how the developing world treats its forests and rivers and disposes of its waste has, paradoxically, given the developing world a strong bargaining chip in global negotiations. Witness, for example, the increased leverage, and the confidence which comes with it, acquired by developing states during the Rio Earth Summit. In exchange for sounder environmental policies, poor countries are able to demand economic and technological assistance from developed economies. The global playing field is still far from level, but this common concern over the environnient has restored this imbalance slightly, and 1 believe will restore it further as environmental issues grow in priority.'O 228 The awareness that environmental disasters need no passport has been forceful also in countering the traditional absolutist idea of state sovereignty. Even among countries which traditionally maintain a strong reading of sovereignty, recent ecological disasters have provoked them to reconsider this ideal. Witness the reaction of the Association of South-East Asian Nations (ASEAN) towards the forest mismanagement on the part of the Indonesian government which led to a regional environmental crisis last fa11 (1997). While the official statements and demands made were tactful and cautious as expected, there is no denying that the belief long held sacred in this region that state sovereignty is inviolable has been strained." The need to share common natural resources, like rivers, has also forced cooperation between countries normally jealous of their sovereignty, and even between traditionally antagonistic ones5' Treaties behveen countries for the sake of conserving migratory animal resources, like fish stocks, or joint-ventures for the sake of creating wildlife corridors and ecological parks are also helping corrode further the Westphalian idea of ~overeignty.~' In sum, technological advances and growth in human population have made global justice a pertinent topic. Were the world inhabited by insulated and isolated pockets of humanity, talk of global justice would be of fascination to the speculative mind but of no practical import (as, say, talk of inter- galactic &:ice now would be). But because we do affect each other's lives in important measures globally in a myriad of ways, questions concerning how we relate to those outside our immediate community have become poignant and morally pressing. And as we move from a world in which our decisions affect one another to a world in which our interests get more and more interdependent and common, global justice moves from being a pertinent topic to a goal within reach if only out of our sense of self-preservation. Perverse as it may sound then, justice and self-interest could work together towards realising a better world. Justice dictates our goal; our self-interests could take us there. This possible coming together of reason and self-seeking inclinations was long ago noted by Kant in his vision of perpetual peace: Thus that mechanism of nature by which selfish inclinations are naturally opposed to one another in their external relations can be used by reason to facilitate the attainment of its own end, the reign of established right. Internal and external peace are thereby furthered and assured, so far as it lies within the power of the state itself to do so. We may therefore say that nature irresistiblv wills that right should eventually gain the upperhand. What men have neglected to do will ultimately happen of its own accord, albeit with much inc~nvenience.~" Kant accepted that considerations ofjustice alone may not be sufficient to move humanity in the right direction, but !ie thought human nature and its self-seeking inclinations would come to the rescue here, providing the motivation for the "universal and rational liuman will, so admirable in itself but so impotent in practice."55 Our world has come to resemble more the cooperative scheme which Rawls associated only with domestic society. My point tliougli, and tliis must be stressed, is not that justice is relevant only in a cooperative scheme (contra Rawls and early Beitz); doing right by people remains morally relevant whether or not we are engaged in some joint enterprise with them. My claim here is that a coopemtive scheme will aid the realisation of the ideals of justice. The objection that our ideal global theory will overtax our commitments is overcome by the realisation that the welfare of each one of us is more closely dependent on the welfare ofall of humanity than we tend to think, and will continue to grow more dependent. So while tlie global theory I am defending can incorporate and rely on self-interests to achieve its ideals, it is quite different from theories which begin from and are justified by self-interested considerations. And I do not deny here that our idealism is going to be limited as long as we count on self- interest alone to take us there, as long we do the right things for the wrong reasons. The realisation of tlie ends ofjustice in this way is too dependent on contingencies, and global justice will remain too tenuous even when achieved. But here, I want to give Fame reasons for doubting the psycl~ological claim about humanity we granted a while back. Without attempting to paint too rosy a picture of humanity, I tend to agree with philosophers who suggest that the idea of human nature as primarily and innately self-interested, callous 230 and possessive is exaggerated?' Cunningham aptly refers to C.B. Macpherson's thesis that the 'possessive individualist culture' is the result of the lack of democratic empowerment and can therefore be corrected by increasing democratic practices within developed countries. He notes how people, even in a competitive capitalistic order, have demonstrated the capacity to "extend the boundaries of what they consider a community worth preserving" to include other countries a s well." I conjecture that one reason for this is perhaps the bringing closer (and into our living rooms quite literally) the sufferings and miseries of 'strangers' via modern communication. Perhaps another reason is that in an increasingly mobile and intermingled world, our loyalties are not confined to a contained locale but are multiple and reach out to different parts of the world. This multiple loyalty and the accompanying multiple sense of moral belonging is most vivid among immigrant citizens. For these new citizens, their mom1 communities tend to extend beyond the borders of their adoptive country to encompass also their native homes (where friends and relatives and the past have remained behind). It can be reasonably hoped that an "instrumental" concern for strangers can in time mature into an "intrinsic" concern, that we may start to care for others because we care for them. Just as democrats believe that democratic Dractices will eventually engender democrntic8ttitndes. so 1 think doing right by others for self-interested reasons can eventually transform into doing right for the right reasons and with the right attitude?' We can recall for ourselves here Aristotle's famous dictum that one becomes good by doing good?%s we find the boundaries of our social and economic community extended, so too must we eventually be moved to genninely extend our moral boundaries. The insensitivity and hypocrisy wliicli are hampering liberal practice exposed in the earlier section can therefore be overcome in the first instance by self-interested considerations, but ultimately also, one may reasonably hope, by a genuine extension of our moral community to cover those outside our immediate national borders. It is in this last regard that ordinary citizens of liberal societies can have a significant contributing role. While state governments can be entrusted to act on national interests, this 23 1 driving motivation can also press them to implement insensitive and hypocritical foreign policies when interests and morality do not fortuitously coincide, as they need not, especially in the short-run. But it is commonplace that "individuals' feelings of responsibility for 'the poorest he', wherever located, seems to run well ahead o f the policies of many government^.'^ Thus, if it is mainly governments of liberal societies (and institutions iike Multinational Corporations) that are failing to live up to liberal expectations, ordinary citizens and intellectuals of these democracies have tlie important responsibility, and ability -- thanks to the democratic freedoms they enjoy and their powers as consumers -- of pressuring their own governments (or even electing new governments) and businesses to conform to liberal standards in their dealings with other countries. Unlike citizens of nondemocracies, democratic citizens are more empowered to contribute towards a better world than is normally thought -- they can certainly do more than offer token donations to charity and non-governmental organisations. If "the major impediments to a global partnership derive, sometimes quite directly, from the activities of developed-world economic and political forces, deniocratic politics in tlie developed world to curtail these forces can significantly contribute to third world [and global] d e m ~ c m c y . " ~ ' In short, increasing democratic participation in liberal countries, giving citizens more control over the policies (in particular the foreign policies) of their own governments, which currently are often enacted without public consultation, and giving them greater control over how private corporations do business, is one crucial step towards greater global democracy. The profound implications of local participation for global justice has the welcome effect of rendering the quest for a bener world order less intangible and daunting for tlie ordinary person, of making this goal more within her reach -- her concrete and immediate task is to sustain and increase democratic politics in her own country. Conclusion As 1 mentioned in the Introduction, 1 do not claim to have offered a full-fledged defence of global 232 liberalism. What 1 have done is to defend one view of liberalism over another, and I now outline why 1 think this interpretation of liberalism can be implemented and endorsed in the real world. One reason why liberalism has come under attack is because of certain misconceptions about it, misconceptions which are in turn largely the result of conflicting conceptions of liberal theory and, worse yet, inconsistency on the part of liberals between theory and practice. A first stage towards a complete defence of liberalism needs then to sort out its internal theoretical differences. I tried in this dissertation to defend what 1 think is the stronger of two prominent conceptions o f liberalism, political and comprel~ensive liberalism. Among other things, I showed that this conception of liberalism can reconcile the two apparently conflicting norms of particularism and universalism in international relations theory, and in a s far a s one common reason for opposing liberalism is its perceived hostility towards particularistic moral claims (including the rights of peoples to self-determinatio~~ and development), one major obstacle on the path towards global liberalism is removed. But theoretical house-cleaning is just one part o f the effort. To the extent that inconsistency between theory and practice often detracts from the worth of a theory (at least in the eyes of its opponents), and to the extent that practice seems to be the only way the viability of a political theory is demonstrable, it is crucial that liberal practitioners (in particular liberal state agents ) live up to the demands o f their own theoretical commitments. Only then can the strongest interpretation of liberal political morality be held up against its competitors, and only the11 can we begin a fair and thorougli evaluation o f theories o f global justice. ENDNOTES 1 . John Rawls, "The Law of Peoples," in On Human Richts, ed. S:eplien Shute and Susan Hurley (New York: Basic Books, 1993): 41-82.220-230. pp. 51-52. 2. Bhikhu Parekh, "The Cultural Particularity of Liberal Democracy," in Prospects for Democracy, ed. David Held (Stanford: Stanford Univ. Press, 1993): 156-75, p. 169. 3. Richard Rorty, Continrencv. lronv and Solidaritv (Cambridge: Cambridge Univ. Press, 1989). p. 68. 4. Ibid., p. 57. 5. Richard Rorty, Obiectivitv. Relativism and Trutli (Cambridge: Cambridge Univ. Press, 1991), p. 209. 6. Joseph Carens, "Complex Justice, Cultural Difference, and Political Community," in Pluralism. Justice and Eouality, ed. David Miller and Michael Walzer (Oxford: Osford Univ. Press, 1995). 7. Charles Beitz, "Cosmopolitan Ideals and National Sentiment." The Journal of Philosoohv 80 (1983): 591-600, p. 596, emphases mine. 8. Will Kymlicka, Liberalism. Culture and Community (Oxford: Oxford Univ. Press, 1989). pp. 67- 69. 9. For a summary and criticism of the denial of the distinction between the "contest of discovery" and the "context of justification" in the natural sciences, see Israel Scheffler, Science 2nd Sobiectivitv (Indianapolis, Indiana Univ. Press, 1969), chap. 4, p. 69ff. This possible objection, the phrasing of it and its rebuttal are suggested to me by Frank Cunningham. 10. It is a testimony to the wealth of Rawls's philosophy that while one may find crucial elements to disagree with, there are also other fundamental aspects one can agree fully with. 1 I. Rawls, "Philosophical Problems of the Law of Peoples," Princeton Univ. 1995, MS. 27; see also "The Law of Peoples," p. 46. 12. "The Law of Peoples," pp. 43-7. Co~istructivism and the distinction between universality and universal in reach is further elaborated in "Philosophical Problems." MS. 25-30. 13. Rawls, "The Law of Peoples," p. 46. We may recall that it is essential, in Rawls's view, that political liberalism be demonstrated to have this universal reach so as to show that its conception ofjustice "is not historicist and to apply only to societies whose political institutions and culture are liberal" (p. 44). See Chap. 2 of this work. 14. See Rorty, "Human Rights, Rationality, and Sentimentality," On Human Richts, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993): 1 11-34. 15. There is therefore, it seems to me, a fundamental difference between Rorty's anti-foundationalism and Rawls's, Rorty's claim to the contrary. (see e.g., Rorty, "The Priority of Democracy to Philosophy" in Obiectivitv. Relativism and Trutli). Rawls attempts to draw out general and universal principles from his specific starting point; Rorty refuses to seek after principles. Moreover, there are otlier important differences behveen the hvo whicli liave been pointed out by various commentators. Rorty's anti-foundationalistic liberalism stems from a philosophical skepticism regarding foundations; Rawls aims only to m t liberalism detached from its philosopliical foundations for political not epistemological reasons. This fundamental difference behveen Rawls and Rorty is clearly expressed by Rawls himself: "it would be fatal to tlie idea of a political conception to see it as skeptical about, or indifferent to, truth, much less as in conflict with it." Political Liberalism, p. 150. 16. Ernesto Laclau, "Subject of Politics, Politics of Subject," in Justice and Democracv: Cross- Cultural Persoective, ed. Ron Bontekoe and Marietta Stepaniants (Honolulu: Univ. o f Hawaii Press, 1997): 363-379, p. 373. 17. Ibid., pp. 367,369. Indeed Laclau's main thesis in this paper was to argue that only aii-anti- foundationalistic universalism can be reconciled with the demands of pluralism --"a universality reached througli equivalence [between particular demands] is very different from tlie universality that results from an underlying essence or an unconditional & principle" (p. 369-70). According to him, "Only tlie critique of a universality that is determined in all its essential dimensions by the metaphysics of presence, opens the way for a theoretical apprehension of the notion of'[particularistic] articulation"' (p. 373). 1 do not endorse this stronger claim, but 1 shall leave this matter aside for now. Another pliilosopher who defends universalism without foundation is Kai Nielsen. See his Naturalism Without Foundations (Amherst: Pronietheus Books, 1996). 18. Frank Cunningham, The Real World of Democracv Revisited (Atlantic Highland, N.J.: Humanities Press, 1994), p. 8 1 . 19. Parekh, pp. 172-73. 20. Ibid., p. 174 22. The Universal Declaration, besides the basic rights to life and security, upholds the freedom of speech and expression (Article 19), right to political participation (Article 21) and other quintessentially liberal individual rights. It is hard to see how a state could endorse these rights without endorsing some form of liberal democracy. While we may want to discard some of the individual rights propounded in the classical liberal view (e.g., the inalienable right to property), and Parekli is surely right to draw this point to our attention, our option is not restricted to a complete abandonment of liberalism. The otlier possible course of action is to reevaluate these rights against t h e m values of liberalism and see if we should not reform this classical understanding of liberalisni. Egalitarian liberals like Rawls and Ronald Dworkin, for example, liave done exactly that. 23. The constructivism there was most neatly encapsulated by the "origin position" method of justification. 24. To recap, unlike political liberalism which takes the idea of toleration to be a fundamental idea to be extended, thereby arriving at a liberal global theory which condones certain restrictions on individual liberties, comprehensive liberalism wants the ideal of individual autonomy to the guiding principle, thereby arriving at a global theory critical of nonliberal political institutions. 25. Of course, there are other reasons why some societies reject the u~iiversal validity of liberalism, an important one being the desire of c o m p t governments to retain power over their citizens. But there is no debate here over what to do with these -- they should be exposed for what they are. 26. This perceived sense of cultural superiority on the part of the liberal West is partly responsible for the reactions of nonliberals against criticisms of their societies. Thus one Asian statesman complained: "America and Britain succeeded in cutting China down to size .... The apparent reason was 'human rights.'Tlie real reason was political, to show Western political clout."Lee Kuan Yew, quoted in Samuel P. Ihntington, The Clash of Civilizations and the Remakinr of World Order (New York: Simon and Schuster, 1996). p. 197. 27. Philip Alston, "The Fortieth Anniversary of the Universal Declaration of Human Rights: A Time More for Reflection than for Celebration," in Human Rirhts in a Pluralist World, ed., Jan Berting et al. (Hague: Netherlands Commission for UNESCO, Middelburg: Roosevelt Study Center, London: Meckler, 1990): 1-13, p. 8. Alston of course recognises that an NGO can only do so much. But "it is time for [Amnesty] squarely and openly to address the issue of how it can best combat the risk of being perceived to endorse an unduly selective conception of human rights, while at the same time maintaining its core focus which can be justified in terms of manageability, legal specificity and operational potential" (p. 9). Given the clout and influence of Amnesty International, Alston thinks that it shoulders this responsibility which smaller and more limited NGOs do not. 28. Hishammuddin Hussein, "Calm Approach to Rights," Far Eastern Economic Review 9 Oct 1997, p. 39. 29. Peter Moody Jr. tells us that the "Asian values discourse is part of the reaction [of nonliberal societies] against the Post-Cold war western triumphalism." Moody, "Asian Values." Journal of International Affairs5011 (1996): 166-192, p. 189. 30. Leila Ahmad, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven: Yale Univ. Press, 1992). pp. 246-247. 3 1. See Daniel A. Bell, "The East Asian Challenge to Human Rights: Reflections on an East West Dialogue," Human Rinhts Ouarterly 18 (1996), 641-667, pp. 658-59. National cultural pride is such that it is oftell said that one would prefer to be oppressed by a regime comprising one's co-nationals than to be free under a foreign rule. Thus notes Isaiah Berlin: "So niuch can I desire this, that I may, in my bitter longing for status, prefer to be bullied and misgoverned by some members of my own race or social class, by whom I am, nevertlieless, recognized as a man and a rival --that is an equal -- to being well and tolerantly treated by someone from some higher and remoter group, who does not recognize me for what I wish to feel for myselfto be .... It is this desire for reciprocal recognition that leads the most authoritarian democracies to be, at times, consciously preferred by its members to tlie most enlightened oligarchies, or sometimes causes a member of some newly liberated Asian or African state to complain less today, wlien he is rudely treated by members of his own race or nation, than wlien he was governed by some cautious, just, gentle, well-meaning administrator from outside." Berlin, "Two Concepts of Liberty", in Four Essavs on Liberty (Oxford: Oxford Univ. Press, 1969), pp. 157-58. Note also John Stuart Mill's distinction behveen self-determination and self- government. 32. As an example, wliile the lack of political and civil rights in some East Asian countries sliould be criticized, positive elements in those societies, like the emphasis on education, communal responsibility, and care for the elderly should be recognised as worthy andindeed useful lessons for some liberal states. 33. Daniel A. Bell, "Minority Rights: On the Importance of Local Knowledge,"-t (Summer 1996): 36-41, p. 36. 34. Reported by A.C. Sinha, "Bhutan in 1994: Will the Ethnic Conflict be Resolved?Ysian Survev s s x v R (1995): 166-170, pp. 169-70. Tlie international body involved here was the United Nations Hid1 Commissioner for Refugees. Ofcourse, it does not follow from this that all aspects of Bhutan's prison system are beyond criticism. But an informed criticism will not impose conditions with a broadbrush. 35. See, e.g., the discussion in Bell, "The East Asian Challenge to Human Rights: Reflections on a East West Dialogue," pp. 652-660. 36. Some nonliberal states liave proposed a United Nations Universal Declaration of Human Resnonsibility as a counter-balance to the Universal Declaration of Human Rislits. While 1 do not think that the idea of individual responsibility is fundamentally philosophically different from the idea of rights but is indeed tlie flip-side of the same idea -- to be coherent, individual rights must presuppose corresponding responsibilities on tlie part of other individuals; and to be consistent one who accept that she has rights must also accept responsibilities on her part-- thecoming into force of a Declaration of Human Resoonsibility will nonetlieless counteract the general emphasis in liberal & on rights to the detriment of duties and responsibilities (without which rights cannot be claimed). 37. As Hussein complains on behalf of nonliberal countries: "Human rights must be applied nondiscriminately and even-Iiandedly. Double standards hurt. Targeting some wliile turning a blind eye on others is untenable. For example, it is unreasonable to ostracize Burma on the one hand wliile coddling Israel on the other. Tlie debacle in Bosnia reveals another gross inconsistency. The passivity of seemingly powerful European nations to genocide on their doorstep has torn away any shred of moral authority that tlie North had arrogated for itself." Hussein, p. 39. 38. Prime Minister Jean Cliretien was reported to liave retorted: "We can be the boy-scout if we want. If you want us to be the only country in the world boycotting China, fine. But we'll lose a lot of business, a lot ofjobs." Quoted in tlie Glohe and Mail 28 Oct 1996 A l I . 39. For a quick ovewiew of tlie double standards in the United States' current Iiunian rights policy. see Aryeli Neier, "The New Double Standard," Foreisn Policv 105 (1996-97): 91-101. 40. The United States voted against tlie United Nations Declaration of the Ridit to Develonment (Resolution 411128) when it came before the United Nations General Assembly in 1986. In its explanation of vote, "the United States delegation ... disagreed with the view that development was to be principally achieved by transfer of resources from the developed to the developing world." The eight countries abstaining, including the Nordic countries, the United Kingdom, Japan and the (then) Federal Republic of Germany, argued that "the provision of development assistance could not be seen as an obligation under international law." See Roland Rich, "The Right to Development: A Right of Peoples?" in The R i ~ h t s of m, ed. James Crawford (Oxford: Oxford Univ. Press, 1988):39-54, pp. 51-52; quotes are from p. 52. Indeed the United States has yet to ratify tlie International Covenant on Economic, Social and Cultural Rights. Human Develonment Renort 1997 (New York: Oxford Univ. Press, 1997), p. 23 1. See also liberal rights theorists like Jack Donnelly who rejects such a right: "To recognize a bmgg right of m s to development will merely undercut tlle ability of victims of repression to advance effective human rights claims against their governments. Even a right of- to development presents similar dangers, because of the near universal role ofthe state as the legally recognized representative of a people." Donnelly, "Human Rights, Individual Rights and Collective Rights," in Human Rirhts in a Pluralist World, ed. Jan Berting et al., (Hague: Netherlands Commission for UNESCO, Middelburg: Roosevelt Study Center, London: Meckler, 1990):39-63, p. 47. (But see my counter-argument in Chap. 6). 41. In fact there has been a decrease in liberal countries' contributio~i to Official Developmental Assistance (ODA). Canada contributed 0.38% of its GNP in 1995, down from 0.5% in 1984185; the United Kingdom down to 0.28% from 0.33%; and the United States 0.1O0/o from 0.24%. Figures provided in United Nations Development Program Human Development Renort 1997 (New York: Oxford Univ. Press 1997). p. 214. 42. A quick survey ofthe United States's foreign policy after World War II will provide the reader with abundant examples of this perversity. Just to cite some of tlie more notorious ones: military backing for dictatorship in Indonesia and its invasion of East Timor; support for Reagan's "Freedom Fi~liters" in Nicaragua, the intervention in Vietnam, and the various covert interventions in Central and South America. All were carried out in tlle name of fighting communism and all involved supporting violent dictatorial regimes (in many cases after democratically elected ones were unlawfully deposed). 43. Thus the scepticism of developing countries towards the international labour laws proposed during tlie World Trade Organisation 1996 conference in Singapore. Developing countries saw these proposals of the rich countries as a plot to keep their economies subordinated. 44. Rawls, A Theorv of .lustice, p. 176. 45. TheNigerian author Kcn Saro-Wiwa lampooned this huinan failing thus: "It is well known that a boil on one's nose is more painful to the afflicted than an earthquake which happens thousands of miles away killing thousands of people." A month and A Dav: A Detention Diarv (London: Penguin Books. 1995). p. 167. 46. Frank Cunningham, The Real World of Democracv Revisited (Atlantic Highlands, N.J.: Humanities Press. 1994). pp. 146-47. 47. Ibid., pp. 143-44. 48. The New Yorker, 4 July 1988, p. 16. See also Seamus O'Cleireacain, Third World Debt and International Public Policv m e w York: Praeger, 1990). p. 4. 49. For descriptions of some of these proposals (with their failures), see Paul Vallely, Bnd Samaritans: First World Ethics and Third World Debt (London: Hodder and Stoughton, 1990). Chap. 8. 50.1 do not think it will be exaggerating to say that the Rio Summit was the first global conference in which the concerns and demands of the poor South were taken seriously, even if not all their proposals were in the end accepted. 51. This culminated in the unprecedented offering of a regional apology by Indonesian President Sullarto at an ASEAN meeting. As one Malaysian speaking of this environmental crisis says, "It creates a clash between the nolion of the sovereignty of state and the right of the international community." Quoted by Murray Hiebert and John McBeth, "Trial by Fire: Smog Crisis Tests ASEAN's vaunted cooperation,"&r Eastern Economic Review 16 Oct. 1997, p. 16. 52. Forjust one example, witness the treaty between lndia and Bangladesh. John F. Bums, "Sharing Ganges Waters, lndia and Bangladesh Test the Depth ofCoopention," TheNew York Times, 25 May 1997 A10. 53. Note, for example, the easing of border tensions between Guatemala and Mexico when the two countries signed an agreement in 1989 establishing the UNESCO sponsored Maya Biosphere Reserves. As the then President Carlos Salinas of Mexico said, "[Ylou see no border because the forest is the same on both sides". Report and quote from Wilbur E. Garrett, "La Ruta Maya,'' National Geocranhical 17614 (Oct 1989): 424-478, p. 478. 54. Kant, "Perpetual Peace: A Philosophical Sketch," in Kant: Political Writines, trans. and ed. Hans Reiss, 2nd ed. (Cambridge: Cambridge Univ. Press, 1991): 93-130, p. 113. 55. Ibid., p. 112. Kant went on to famously say: "so man, even if he is not morally good in liimself, is nevertheless compelled to be a good citizen. As hard as it may sound, the problem of setting up a state can be solved even by a nation of devils (so long as they possess understanding)." 56. Hume is one famous exaniple of a philosopher who rejected the psychological egoism thesis. 57. Cunningham, pp. 148-49. 58. Ibid., p. 148. 59. Aristotle, Ethics, trans. J.A.K. Thomas (Middlcsex: Penguin Books, 1966). p. 56. 60. Giovanni Andrea Cornin et al., Adiustment With n Human Face: Protectine The Vulnerable and Promotine Growth (A Studv bv UNICEF) (New York: Oxford Univ. Press, 1987), p. 274. 61. Cunningham, p. 148. BIBLIOGRAPHY Ahmad, Leila. Women and Gender in Islam: Roots of a Modem Debate. New Haven: Yale Univ. Press, 1992. Aiken, William and Hugh LaFollette, ed. World Hunner and Moralitv 2nd ed. New Jersey: Prentice Hall, 1996. Amnestv lnternational Annual R e ~ o r i 1995. New York: Amnesty lnternational Publications, 1995. Anaya, James. "The Capacity of International Law to Advance Ethnic or Nationality Rights Claims." In The Rivhts of Minoritv Cultures. Ed. Will Kymlicka. Oxford: Oxford Univ. Press, 1996,320-30. Anderson, Benedict. lmaoined Communities. Rev. ed. London: Verso, 1991 Aristotle, Ethics. trans. J.A.K. Thomas. Middlesex: Penguin Books, 1966. Allfield, Robin and Barry Wilkins, ed. International Justice and the Third World. London: Routledge. 1992 Barry, Brian. The Liberal Theorv of Justice. Oxford: Clarendon Press, 1973. Bell, Daniel A. "A Cornmunitmian Critique of Authoritarianism: The Case of Singapore." Political Theow2511 (1997). 6-32. -- "Minority Rights: On the Importance of Local Knowiedge!'Dissent. Summer 1996. -- "The East Asian Challenge to Human Rights: Reflections on an East West Dialogue." Human R i c k Quarterlv 18 (1996), 641-667. Beitz, Charles. "The Reagan Doctrine in Nicaragua." In Problems of lnternational Justice. Ed. Steven Luper-Foy. Boulder: Westview Press, 1988. -- "Cosmopolitan Ideals and National Sentiment." The Journal of Philosoohv 80 (1983). 591-600. -- Political Theorv and International Affair?. Princeton: Princeton Univ. Press, 1979. Berlin, Isaiah. "On Political Judgement." New York Review of Books XLI11115 (Oct 1996). 26-30. --"The Pursuit of the Ideal:' In The Crooked Timber of Humanity. London: John Murray Publishers, 1990. -- "Two Concepts of Liberty." In Four Essavs on Liberlv. Oxford: Oxford Univ. Press, 1969. Bening, Jan, et al., ed. Human Rizhts in a Pluralist Worl& Hague: Netherlands Commission for UNESCO, Middelburg: Roosevelt Study Center, London: Meckler, 1990. Bowcott, Owens. "When Work is the Lesser of Two Evils." In The Guardian Weeklv. 26 Oct 1997. Brilrnayer, Lea. American Hezemonv: Political Moralitv in a O n e - S u ~ e m o w e r World. New Haven: Yale Univ. Press. 1994. Buchanan, Allen. Secession: T h e Moralitv o f Political Divorce From F o n Sumter t o Lithuania and Ouebec. Boulder: Westview Press, 1991. Carens, Joseph. "Complex Justice, Cultural Difference, and Political Community." In Pluralism. Justice. and E ~ u a l i t v . Ed. David Miller and Michael Walzer. Oxford: Oxford Univ. Press, 1995. -- "Aliens and Citizens: The Case for Open Borders." Review of Politics 4913 (1987), 251-73. Cassese, Antonio. International Law in a Divided World. Oxford: Oxford Univ. Press, 1986. Cema, Christina. "East Asian Approaches to Human Rights." Buffalo Journal o f International Law 212 (1995), 201-21;. Ching, Julia. "Human Rights: A Valid Chinese Concept?" In Human Riehts in China and Islam. Ed. D.C. Maguire. Washington, 1995. Noam Chomsky. World Orders Old and New. New York: Columbia University Press, 1994. Chopra, Jarat and Thomas G. Weiss. "Sovereignty is no Longer Sacrosanct: Codifying Humanitarian Intervention." Ethics and International Affairs 6 (1992). 95-1 17. Chopra, P.N. The Ocean o f Wisdom: The life of the Dalai Lama XIV. New Delhi: Allied Publishers, 1986. Cooper, James. "Child Labour: Legal Regimes, Market Pressures, and the Search for Meaningful Solutions." lnternational Journal LW3 (1997). 41 1-30. Cornia, Giovanni Andrea, et al. Adiustment With a Human Face: Protectinc The Vulnenble and Promotina Growth (A Studv bv UNICEF). New York: Oxford Univ. Press, 1987. Crawford, James. ed. The Riehts o f Peonles. Oxford: Clarendon Press, 1988. Crossette, Barbara. "Bhutan Struggles to Stop Militants." The New York Times 14 April 1991,l. 9 : l . -- "Now Tries T o Be Then in the Land o f Thunder Dragon." The New York Timeq 3 June 3 1990.1,20:1. Cultural Rinhts a s Human Riehts. Paris: UNESCO, 1970. Cunningham, Frank. "The C a n a d d Q u e b e c Conundrum: A Trinational Perspective." Constitutional F o r u m 814 (1997). C a n a d a ' s P r o s p e c t s S e r i e s (Special Issue). Ed. J a n e t A j z e n s t a t a n d C a r o l i n e Bayard, 1 19- 129. -- The Real World o f Democracv Revisited. Atlantic Highlands, N.J.: Humanities Press, 1994. Detlefsen, Karen. "Diversity and the Individual in Dewey's Theory of Democratic Education." Educational Theon, 4813 (1998). Donnelly. Jack. Universal Human Rinhts in Theorv and Practice. Ithaca: Cornell Univ. Press. 1989. Dreze, Jean and Amartya Sen. Hunzer and Public Action. Oxford: Oxford Univ. Press, 1989. Dworkin, Gerald. The Theorv and Practice of Autonomv. Cambridge: Cambridge Univ. Press, 1988. Dworkin, Ronald. "Foundations of Liberal Equality!' The Tanner Lectures on Human Values XI. Salt Lake City: Univ. of Utah Press, 1990. --A Matter o f Princiole. Cambridge: Harvard Univ. Press, 1985. -- Takine Rizhts Seriously. Cambridge: Harvard Univ. Press, 1978. Dyzenhaus, David. "Critical Notice: Charles L m o r e , The Morals of Modernifv." Canadian Journal of Philosonhv 2812 (1998). 269-286. -- "Liberalism After the Fall." Philosoohv and Social Criticism 2213 (1996). 9-37. Elliot, Lany. "On Collision Course with Disaster!' The Guardian Weeklv. 18 Jan. 1998. Ehrlich, Paul R. et al., "No Middle Way on the Environment." The Atlantic Monthly Dec 1997, 98-104 Exdell, John. "Feminism, Fundamentalism, and Liberal Legitimacy!' Canadian Journal of Philoso~hy 2413 (1994), 441- 464. Fnlk, Richard. "Evasions of So\ereignty." In Conrendinr Sovereirnties. Redefininc Polilical Communirv. Ed. I1.U J. \Valker and Saul H. Mendlovilz. London: Lynne Rienner Publishers. 1990. "Free Market Derails Nations, Malaysian PM Charges," The Globe and Mail, 25 Nov. 1997, A12. "Freedom, Asian Values and a 'New' Chinese Culture." In The Straits Times. 15 May 1996, p. 29. Frost, Mervyn. Ethics in International Relations: A Constitutive Theorv. Cambridge: Cambridge Univ, Press, 1996. Galston, William. "Two Concepts of Liberalism." Ethics 10513 (1995): 516-534. -- "Pluralism and Social Unity." -99 (1989), 71 1-26. Gewirth, Alan. "Ethical Universalism and Particularism." The Journal of Philosonhv LXXXVl6 (1988),283-302. The Global Partnershio for Environment and Develonment: A Guide to Aeenda 21. New York: United Nations, 1993. Goodin, Robert. "What Is So Special About Our Fellow Countrymen?" E-9814 (1988), 663-86. Gomez, James. Rev. of To Catch n Tartar by Francis Seow. Human Riehts Ouarterlv 18 (1996). 507-510 Green, Leslie. "Internal Minorities and Their Rigl~ts." In Grouo Richts. Ed. Judith Baker. Toronto: University o f Toronto Press, 1994, 101-1 17. Gutmann, Amy and Dennis Thompson, "Moral Disagreement in a Democracy." In Social Philosonhv and Policv 12 (1995), 87-1 10. Gutmann, Amy, ed. Multiculturalism. Princeton: Princeton Univ. Press, 1994. -- "Communitarian Critics of Liberalism." Philosonhv and Public Affairs 1413 (1985), 308.322. Habermas, JUrgen. "Citizenship And National Identity: Some Reflections O n The Future O f Europe." P& International 1211 (1992). 1-19. Hampton, Jean. "The M o n l Commitments o f Liberalism." In The Idea o f Democracy. Ed. David Copp, Jean Hampton and John E. Roemer. Cambridge: Cambridge Univ. Press, 1995,292-313. Hannum, Hurst. Autonornv. Sovereimtv. and Self-Determination. Philadelphia: Univ. o f Pennsylvania Press, 1990. Held, David, ed. Prosnects for Democncy. Stanford: Stanford Univ. Press, 1993. -- ed. Political T h e o w Today. Stanford: Stanford Univ. Press, 1991 Hiebert, M u m y and John McBeth, "Trial by Fire: Smog Crisis Tests ASEAN's vaunted cooperation." Far Eastern Economic Review 16 Oct. 1997, p. 16. Higgins, Andrew. "Washington Shatters Asia's Dreams," The Guardian Weeklv 25 Jan. 1998, p. I. Hobhouse, L.T. Liberalism and Other Writines. Cambridge: Cambridge Univ. Press, 1994. Hoffman, David. "Only the Elite Benefit in 'People's Capitalism," The Guardian Weeklv 25 Jan. 1998, p. 15 Hoffmann, Stanley. "Dreams o f a Just World." New York Review o f Books 2 Nov. 1995,52-57 -- "The Crisis o f Liberal Internationalism." Foreisn Policv No. 98 (1995): 159-177. Huntington, Samuel P. The Clash of Civilization and the Remakinz of World Order. New York: Simon 8: Schuster, 1996. Hurka, Thomas. "The Justification of National Partiality." In The Monlitv of Nntionalism. Ed. Robert McKim and Jeff McMahan. Oxford: Oxford Univ. Press, 1997, 139-57. Hussein, Hishammuddin. "Calm Approach t o Rights," Far Eastern Economic Review 9 Oct 1997, p. 39. Hutt, Michael. "Refugees from Shangri-La." Index on Censorshin 22 (1993), 9-14. lyer, Pico. Video Niehts in Kathmandu. New Y o r k Vintage Books, 1988. Jayasankaran, S. "Blunt Message: Mahatir meets Islamic Opposition Head-on." Far Eastern Economic Review 8 Aug. 1996, p. 22. Kant, "Perpetual Peace: A Philosophical Sketch." In Kant's Political Writinst. Trans. and ed. Hans Reiss, 2nd ed. Cambridge: Cambridge Univ. Press, 1991.93-130. - - T h e M e t a ~ h v s i c s o f Morals. Trans. Mary Gregor. Cambridge: Cambridge Univ. Press, 1991 Kausikan, Bilahari. "An East Asian Approach to Human Rights." Buffalo Journal o f International Law 2 (1995-96). 263-83. Khanna, Parmanand and Saroj. "Ethnicity in Bhutan: Causes and Effects." Journal o f South Asia and Middle Eastern Studies X V l l l l (1993). 76-94. Kubba, Laith. "Recognizing Pluralism." Journal o f Democracy April 1996. Kukathas, Chandra. "Cultural Toleration." In Nomos XXXIX: Ethnicitv and Grouo Rights. Ed. Ian Shapiro and Will Kymlicka. New York, New York Univ. Press, 1997.69-104. -"Liberalism, Communitarianism and Political Community!' In The Communitarian Challence to Liberalism. Ed. Ellen Frankel, Fred Miller and Jeffrey Paul. Cambridge: Cambridge Univ. Press, 1996, 80-104. -- "Are There Any CulNral Rights?" Political Theorv, 2011 (1992). 105-39. Kymlicka, Will. "Two Models of Pluralism and Tolerance." In Toleration: An Elusive Virtue. Ed. David Heyd. Princeton: Princeton Univ. Press, 1996, 81-105. -- Multicultural citizens hi^: A Liberal Theorv of Minoritv R i r h t s Oxford: Oxford Univ. Press, 1995. -- Contemoorarv Political Philosoohv: An Introduction. Oxford: Oxford Univ. Press, 1990. -- Liberalism. Comrnunitv and Culture. Oxford: Oxford Univ. Press, 1989. Larmore, Charles. Patterns of Moral Comolexitv. Cambridge: Cambridge Univ. Press, 1987. Lee Teng-hui. "Chinese Culture and Political Renewal." Journal of Democracv 614 (1995), 4-8. Levinson, Stanford. "Is Liberal Nationalism an Oxymoron?" Ethics 105 (1995), 626-645. Li, Xiaorong. "A Critique of Rawlsqs'Freestanding' Justice." Journal of Aeolied Philosoohv 12 (1995), 263-271. Lintner, Bertil. "Stateless in Shangri-La." Far Eastern Economic Review, 25 July 1996: 30-31. Luban, David. "Just Wars and Human Rights." Philosoohv and Public Affairs 911, 161-181 Macedo. Steven. "Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?" F.thics 10513 (1995), 468-496. Maclntyre, Alasdair. "Is Patriotism a Virtue?" The Lindlev Lectures. Dept. of Philosophy, Univ. of Kansas. 19S4. --After Virtue. London: Duckworth, 1981. "Mahatir: Let's Practice Islam the Same Way." The Straits Times, 21 July 1997, p. 2. Marfording, Annette. "Cultural Relativism and the Construction of Culture: An Examination of Japan." Human Rishts Qmtgdy 1912(1997),431-48. Mason, Andrew. "Special Obligations to Compatriots." Ethics 107 (1997): 427-447. Mill, J.S. O m . Indialia: Bobbs-Merrill Co, 1976. Miller, David. On National&, Oxford: Oxford Univ. Press, 1995. --"In Defence of Nationality," Journal of Anolied Philosonhy 1011 (1993): p. 5. -- "The Ethical Significance of Nationality." -98 (1988). 647-662. Miller, Lynn H. Global Order. Boulder: Westview Press, 1994. Modood, Tariq. "Anti-Essentialism, Multiculturalism and the 'Recognition' of Religious Groups." Conference on Citizenshin in Diverse Societies: Theorv and Practice. Toronto. 4 Oct. 1997. Moody, Peter Jr. "Asian Values." J o ~ ~ r n a l of lnternational Affairs 5011 (1996), 166-192. Mouffe, Chantal. "Liberalism and Modem Democracy." In Democracv and Possessive Individualism. Ed. Joseph Carens. Albany: SUNY, 1993. Mydans, Seth. "Blame Men, Not Allah, Islamic Feminists Say," The New York Times 10 Oct. 1996, A4. Nardin, Terry and David R. Mapel, ed. Traditions of lnternational Ethics. Cambridge: Cambridge Univ. Press, 1992 Ngugi wa Thiong'o, " f i e Language of African Literature" in Colonial Discourse and Post-Colonial Theorv. Ed. Patrick Williams and Laura Chrisman. New York Columbia Univ. Press, 1994. Neier, Ayreh. "The New Double Standard." Foreien Policv 105 (1996-97): 91-101. -- "Asia's Unacceptable Standard." Foreiw Policy92 (1993), 42-51 Nielsen, Kai. Naturalism Without Foundations. Amhent: Prometheus Books, 1996. -- "Global Justice, Capitalism and the Third World." In Justice and Economic Distribution. Ed. John Arthur and William H. Shaw, 2nd ed. New Jersey: Prentice Hall, 1991,228-241. -- "Capitalism, Socialism and Justice." In And Justice for All. Ed. Tom Regan and Donald VanDeVeer. New Jersey: Rowman and Littlefield, 1982,264-286. Nozick, Robert. Anarchv. State and Utoni?. New Yotk: Basic Books, 1974. O'Cleireacain, Seamus. Third World Debt and lnternational Public Policv. New York: Praeger, 1990, Chap. I. Okin, Susan Moller. "Political Liberalism, Justice and Gender." E-105 (1994). 23-43. O'Neill, Onora. Faces o f Hunzer: An Essav on Povertv. Develonment and Justice. London: George Allen and Uwin. 1986. Parelih, Bhikhu. "British Citizenship and Cultural Difference!' In citizens hi^. Ed. Geoff Andrew. London: Lawrence & Wishart, 1991, 183-204. Philpott, Daniel. "A Brief History of Sovereignty." Journal of lnternational Affairs 4812 (199% 353-368. Pogg:. Thomas. "The Bounds of Nationalism." In Nationalism. Ed. Jocelyne Couture, Kai Nielsen and Michel Seyn~our. Calgary: Univ. of Calgary Press, 1996. -- "An Egalitarian Law of the Peoples." Philosonhv and Public Affairs 2313 (1994), 195-224. --"Cosmopolitanism and Sovereignty." Ethics 103 (1992), 48-75. -- "An Institutional Approach To Humanitarian Intervention." Public Affairs Ouarterly611 (1992), 89-10; -- Realizing Rawls. Ithaca: Cornell Univ. Press, 1989. Putnam, Hilary. "Objectivity and the SciencelEthics Distinction." In Realism With A Human Face. Cambridge: Harvard Univ. Press, 1990. Rawis, John. "Philosophical Problems of the Law of Peoples." Seminar held at Princeton University, Spring 1995. -- "The Law of Peoples." In On Human Riehts. Ed. Stephen Shute and Susan Hurley. New York: Basic Books. 1993, 41-82,220-230. - Political Liberalism. New York: Columbia Univ. Press, 1993. -- "The Domain of the Political and Overlapping Consensus." In The Idea of Democracv. Ed. David Copp, Jean Hampton and John E. Roemer. Cambridge: Cambridge University Press, 1993.245-269. -- A 'l3eow of Justice. Cambridge: Haward Univ. Press, 1971. Raz, Joseph. Ethics in the Public Domain. Oxford: Oxford Univ. Press, 1994. -- Morality of Freedom. Oxford: Oxford Univ. Press, 1986. Richburg, Keith B. "Democracy on March Across East Asia." The Guardian Weekly l l Jan. 1998, p. 15. Ripstein, Arthur. "Recognition and Cultural Membership!' DialooueXXXIV (1995). 33 1-41. Rorly, Richard. "Human Rights, Rationality, and Sentimentality." In On Human Richts. Ed. Stephen Shute and Susan Hurley. New York: Basic Books, 1993,111-134. - ObiectiviN. Relativism and Truth. Cambridge: Cambridge Univ. Press, 1991. -- Continnencv. lronv and Solidarity. Cambridge: Cambridge Univ. Press. 1989. Rustomji, Nari. Bhutan: The D n e o n Kinedom in Crisis. Oxford: Oxford Univ. Press, 1978. Sandel, Michael. Liberalism and the Limits of Justice. Cambridge: Cambridge Univ. Press, 1982. Schlesinger, Stephen and Stephen Kinzer. Bitter Fruit: The Untold Stow of the American Coun in Guatemala. New York: Anchor Books, 1983. Sciolino, Elaine. "The Many Faces of Islam." The New York Times Oct 13 1996 D4 Sen, Amartya. IneaualiN Reexamined. Cambridge: Haward Univ. Press, 1992 -- Poverw and Famines: An Essav on Entitlement and Deorivntion. Osford: Oxford Univ. Press, 1981. Seton-Watson, Hugh. Notions and States. Boulder: Westview Press, 1977. Shapiro, Ian. "A Note on the Philosophical Psychology of 'Ought Implies Can'." In NOMOS LCI: Global Justice. New York: New York Univ. Press, 1999 (forthcoming). Shue, Henry. Basic Riehts: Subsistence. Affluence and US Foreinn Policy, 2nd ed. Princeton: Princeton Univ. Press, 1996. Sinha, A.C. Bhutan: Ethnic ldentitv and National Dilemma. New Delhi: New Reliance Publishing House. 1991. Smith, Anthony D. Nations and Nationalism in a Global E n . Cambridge: Polity Press, 1995. Tamir, Yael. Liberal Nationalism. Princeton: Princeton Univ. Press, 1993. Taylor, Charles. "Atomism." In Communitarianism and Individualism. Ed. Shlomo Avineri and Avner De-Shalit. Oxford: Oxford Univ. Press, 1992.29-50, -- "Cross-Purposes: The Liberal-Communitarian Debate." In Liberalism and the Moral Life. Ed. Nancy Rosenblum. Cambridge: Haward Univ. Press, 1989, 159-1 82. Teson, Fernando. "The Rawlsian Theory of International Law." Ethics and International Affairs 9 (1995), 79-99. United Nations Develooment Proenm Human Develoment Reoolt 1997. New York: Oxford Univ. Press, 1997 United Nations Develooment Proenm Human Develooment Revolt 1996. New York: Oxford Univ. Press, 1996 Vallely, Paul. Bad Samaritans: First World Ethics and Third World Debt. London: Hodder and Stoughton, 1990. Van Wyk, Robert N. "Perspectives on World Hunger and the Extent of Our Positive Duties." Public Affairs Ouarterlv 212 (1988), 75-90. Waldron, Jeremy. "Minority Rights and the Cosmopolitan Alternative." Universitv of Michiean Journal of Law Reform 25B (1992): 751-93. Walzer, Michael. Just and Uniust Wars. 2nd ed. Basic Books: New York 1992. -- "Nations and Universe." In The Tanner Lectures on Human Value~XI. Saltlake City: Univ. of Utah Press, 1990. --"The Communitarian Critique of Liberalism." Political Theory 1811 (1990), 6-23. -- Soheres of Justice. New York: Basic Books, 1983. -- "The Moral Standing of States: A Response to Four Critics." Philosoohv and Public Affairs 913 (1980). 269-229. Weinstock, Daniel. ''National Partiality: Who, What, Why?" MontrealIToronto Colloouium, Department o f Philosophy, University o f Toronto, 6 March 1998. Williams, Bernard. Moral Luck. Cambridge: Cambridge Univ. Press, 1981. Young, I.R. "Polity and Group Difference: A Critique of the Ideal of Universal Citizenship." Ethics99 (1989), 250-274. 
work_tir2khfma5cphidfv6fxehprey	----	BRITISH MEDICAL JOURNAL 20 MAY 1978 1305 shown that the basic abnormality is reversed blood flow due to incompetence of valves in the internal spermatic vein, nearly always on the left side. This results in pooling of blood around the testicles and an increased scrotal temperature, the extent of which depends on the size of the varicocele."1 Spermato- genesis is depressed on both sides,'6 probably as a direct result of the increased temperature rather than of reflux of adrenal metabolites.7 17 18 Typically seminal analysis shows a depressed sperm count, with poor motility and an increased percentage of abnormal forms.19 Clinically the condition may be diagnosed by careful examination with the patient standing in good light. Small varicoceles are shown up by the Valsalva manoeuvre; they are important, since fertility may be improved just as much after ligation of a small as of a large one.20 21 This finding has led to a search for varicoceles that are not detected on routine examination but suspected as a result of decreased left testicular firmness or increased venous pressure during a Valsalva manoeuvre. Comhaire et aP22 carried out scrotal thermography in 36 men suspected of having subclinical varicocele and the results were abnormal in 19; in 16 of these patients venography confirmed reflux in the spermatic vein. The simple non-invasive technique of thermography, widely available for early diagnosis of cancer of the breast, appears to offer a valuable screening test for minor or subclinical varicocele, and this test is also useful for postoperative assess- ment of cases with a few residual veins. Varicocele may be corrected operatively by the supra- inguinal,2' inguinal,24 or scrotal approach,6 and each route has its advocates. The inguinal approach is probably the simplest, since the enlarged veins unite at the internal ring, and both the internal spermatic vein and any secondary varicosity in the cremasteric venous system25 can be dealt with simultaneously. The suprainguinal approach suffers from the disadvantage that the secondary cremasteric incompetence may be missed, and the scrotal approach is associated with a small but definite incidence of testicular atrophy.26 Most varicoceles affect only the left side; bilateral varicoceles have been reported in 15%/ of cases, but the right side was affected alone in only 060 of cases.27 The results of surgery are good. In a recent analysis of 986 cases Dubin and Amelar27 described improvement in the quality of the semen in 700%, and 53%' of the patients' wives became pregnant. The results were better for patients who had had preoperative sperm counts of over 10 million ml (850o semen quality improved, 7000 pregnancy rate) than for patients who had preoperative counts of less than 10 million (35%, improved, 2700) pregnancy rate). The results in the latter group were improved by the empirical use of postoperative human chorionic gonadotrophin (55"0 improved, 4500 pregnancy rate). These results are exceptionally good, and the high pregnancy rate implies that the operation on the varicocele was only one incident in the integrated management of both marital partners. Bennett, W H, Latncet, 1889, 1, 261. 2 Tulloch, W S, Edinbuirgh Medical3Journal, 1952, 59, No 3, pt 2, p 29. 3Tulloch, W S, British MedicalJournal, 1955, 2, 356. 4Davidson, H A, Practitioner, 1954, 173, 703. 5Scott, L S, and Young, D, Fertility and Sterility, 1962, 13, 325. Hanley, H G, and Harrison, R G, British Journal of Surgery, 1962, 50, 64. Charney, C W, and Baum, S, Journal of the Americatn Medical Association, 1968, 204, 1165. MacLeod, J, Fertility and Sterility, 1969, 20, 545. 9 Brown, J S, Fertility and Sterility, 1976, 27, 1046. 1 Johnson, D E, Pohl, D R, and Rivera-Correa, H, Southern MedicalJournal, 1970, 63, 34. 1 Davis, J E, et al, International_Journal of Fertility, 1965, 10, 359. 12 Dubin, L, and Amelar, R D, Fertility and Sterility, 1971, 22, 469. 13 Ahlberg, N E, et al, Acta Radiologica (Diagnosis), 1966, 4, 517. 14 Brown, J S, Dubin, L, and Hotchkiss, R S, Fertility and Sterility, 1967, 18, 46. 15 Kormano, M, et al, Fertility and Sterility, 1970, 21, 558. 16 Dubin, L, and Hotchkiss, R S, Fertility and Sterility, 1969, 20, 51. 17 Agger, P, Fertility and Sterility, 1971, 22, 270. 18 Lindholmer, C, Thulin, L, and Eliasson, R, Andrologie, 1973, 5, 21. 19 MacLeod, J, Fertility and Sterility, 1965, 16, 735. 2" Kiszka, E F, and Cowart, G T, Journal of Urology, 1960, 83, 713. 21 Dubin, L, and Amelar, R D, Fertility and Sterility, 1970, 21, 606. 22 Comhaire, F, Monteyne, R, and Kunnen, M, Fertility and Sterility, 1976, 27, 694. 23 Palomo, A, Jouirnal of Urology, 1949, 61, 604. 24 Ivanissevich, 0, Journal of the International College of Surgeons, 1960, 34, 742. 2-; Hendry, W F, et al, British Journal of Urology, 1973, 45, 684. 26 Fritjofsson, A, et al, Acta Chirurgica Scandinavica, 1966, 132, 200. 2 Dubin, L, and Amelar, R D, Urology, 1977, 10, 446. Phased justice? A trusting doctor might concede the Review Body's eighth report (p 1360) to be phased justice. But how many trusting doctors are there left? A decade or more of Government interference in the profession's independent machinery for pay review has made the average doctor suspicious. Since August 1975 suspicions have not been lessened by pay restric- tions and taxation policies that have struck savagely, and often unfairly, at doctors' take-home incomes, seriously distorting pay relativities within the profession. The Review Body made its views quite clear in last year's report.' This year it has done so again: "It is the failure to take account of the need to correct these injustices that, in our view, is the principal cause for the decline in the morale of the medical and dental professions over the last three years. We have said before- and we repeat now, because the position has undoubtedly worsened-that, ifthis decline is not reversed, the consequences for the National Health Service and for the community as a whole will become increasingly serious.'" The profession has previously urged the Review Body to publish recommendations on what size award NHS doctors should receive, disregarding government norms.2 Until now the Review Body has eschewed the idea. This time it creates a welcome precedent by publishing two sets of recommenda- tions: one giving "fully up-to-date" levels of pay at 1 April, restoring what it sees as the "proper relationship" of doctors' rewards with those of other occupations; and the other the amount to be paid on 1 April 1978, which is within the Govern- ment's 1000 guidelines. The Review Body acknowledges the importance of the Government's pay policy and proposes that the C§135m difference between the two sets ofrecommendations should be paid in two phases-April 1979 and April 1980. Sir Ernest Woodroofe and his colleagues are not naive and presumably they view their work as of value to both doctors and patients or they would have resigned their thankless task long ago. In their eighth major review they confronted a delicate political dilemma, made no easier by their forthright support of the doctors' case last year.1 3Had they dutifully toed the Government line and proposed a simple 1000, the profession would have lost all faith in their independence. Had they recommended 30W now to bring doctors' pay up to date, the Government would have rejected it out of hand. But as the Cabinet had already issued promissory notes to the firemen, policemen, and the military it would have been extremely difficult for ministers to refuse a similar deal for NHS doctors. So the Review Body recommended accordingly. o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J: first p u b lish e d a s 1 0 .1 1 3 6 /b m j.1 .6 1 2 3 .1 3 0 5 o n 2 0 M a y 1 9 7 8 . D o w n lo a d e d fro m http://www.bmj.com/ 1306 BRITISH MEDICAL JOURNAL 20 MAY 1978 But the four weeks taken by the Government before announcing its acceptance of the eighth report suggests that there were political problems. Indeed, the Secretary of State admitted as much at his press conference. Presumably, the Cabinet's biggest worry was the effect it might have on other settlements in the public sector, particularly NHS workers, some of whom have been very restless over the 1O',, norm. Then there was the question of the consultants' new contract, which if it is to be of any use at all in reviving their spirits must attract extra money-and not at the expense of other doctors or of other parts of the NHS. Will the Treasury find new money or does the Government envisage paying for the contract out of the f135m and whatever additional "cost-of- living increases" the profession gets over the next two years ? Or perhaps it has not looked too far ahead. After all, an election is not far away and, whichever party wins, Cabinet responsi- bilities will almost certainly have changed by the time these awkward questions have to be answered. While the report does little more than record changes in manpower-a few more GPs, mainly women or overseas graduates; a rise of 122 consultants in England and Wales, but still gaps in the shortage specialties; a falling proportion of junior staff from overseas; and serious shortages, still, in community medicine-the Review Body has examined doctors' work load. GPs will be disappointed that despite some strongly argued BMA evidence about their case (p 1365) the referee's answer is "not proved." As a recent paper by Dr John Ball4 pointed out, measuring work load in general practice is not easy. But most GPs are convinced that in terms of responsibility and complexity their job is becoming more difficult: measurement of mere hours worked or cases seen is too superficial a judgment. Perhaps the GMS Committee should persuade some members of the Review Body-or its staff-to spend some time with practices to get a real idea of the sharp end of medicine. It is any easier to estimate the work load of consultants ? The Office of Manpower Economics-the staff who service the three review bodies-has certainly had a good try and the results are published in an extensive appendix to the report. Despite the response being a disappointing 51(, -10'(, of all consultants-the sample survey should provide a baseline because, in reviewing pay, trends are certainly as important as a single snapshot of work load. The July 1977 snapshot shows that whole-time consultants worked 48 7 hours a week, made up of about 39 3 on clinical or equivalent work (including travelling time between hospitals); four on NHS committee work; 4 3 on administrative work; and 1 1 on undergraduate teaching. Nine sessions and maximum part-time consultants worked about 43 hours a week, but in "whole-time equivalent terms" part timers worked longer hours than their whole-time colleagues. Quite possibly, however, by next year consultants will have their new work-sensitive contracts, which should give a clearer picture of what each consultant does and ensure that he is paid primarily for that. This brings us to the critical question: How will the Review Body price the new contract ? For it will be of little help to the NHS unless new money is produced. While it would have been unreasonable to have expected firm five-figure promises, consultants will be uneasy that the Review Body has confined itself to a foggy description of the dilemma of the changeover. A positive statement could have done much for consultants' morale. What the report says might just prompt some consultants to wonder whether voting for a new contract is worthwhile. They should not be deterred from supporting it, but the CCHMS should ask for urgent clarification of this vital paragraph in the eighth report. As promised last year,3 the Review Body has made a start in sorting out the distorted internal differentials by awarding graduated percentages to hospital doctors within the overall 10",, this year and proposing similar differential awards next year and in 1980. This will please the consultants, especially the younger ones, who will benefit-some by as much as 417"0,, according to the BMA. Junior staff will be less happy because their increases (approaching 8°. overall, including UMTs, this year and for some well over 20"0 eventually) are the ones which will be affected. Presumably the Review Body feels that as the pay of most juniors has been less badly depressed than that of many consultants this was the fairest way of restoring appropriate differentials. Though many doctors may judge jun- ior staff to have had a reasonable deal overall since 1975, juniors may well see themselves as having been penalised for the success of their own revised contract. It is doubtful whether junior doctors will be entirely mollified by the Review Body at last agreeing that their basic salary covers a 40-hour week or by again deploring their excessively long hours of work and urging action-in parallel with discussion on the con- sultants' contract. As a reduction in work load was one of the Hospital Junior Staff Committee's original objectives this is a fair point. How doctors receive this pay award will rest on their judg- ment of national versus personal interest. As one of the hardest working groups in the community they will be annoyed that no productivity element has been included in the award, despite admitted phoney productivity deals in public sector industry.; Some economists and politicians fervently pursue a permanent incomes policy as if it were the economic holy grail. The average doctor can be only a bemused bystander to the esoteric arguments. But as a pragmatic scientist he will probably accept that there is some cause and effect in the fall in inflation after pay restraint. To this extent he will acknowledge the award and its promises to be as much as could be expected in 1978. Certainly the total of 30 40), albeit phased, matches the BMA's target. He will, however, be much less happy about the use of pay policies to level incomes as well as to restrain them. Govern- ment must think hard about the long-term consequences of this aspect. Incentives have a place in most cultures. Medicine requires a long training; it is a physically and mentally demand- ing occupation, as well as being emotionally and intellectually rewarding. The responsibilities and liabilities grow and the incentives must match these if medicine is to flourish. The Government's acceptance of the eighth report is a faltering step in the right direction. If, however, doctors find next year that the 1978 report was a mirage the consequences for the NHS will be disastrous. Review Body on Doctors' and Dentists' Remuneration, Seventh Report, Cmnd 6800. London, HMSO, 1977. 2 British Medical Yournal, 1977, 1, 1483. British MedicalyJournal, 1978, 1, 124. Ball, J, British Medical Journal, 1978, 1, 868. ' Financial Timties, 10 May, p 1. Correction In the leading article on "Describing new syndromes" (14 January, p 64) the first sentence of the second paragraph should have read "Recently Garlinger et all have used this approach to try to distinguish between a complete and partial trisomy 22 and so to identify a recognisable new clinical entity, partial trisomy 22." o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J: first p u b lish e d a s 1 0 .1 1 3 6 /b m j.1 .6 1 2 3 .1 3 0 5 o n 2 0 M a y 1 9 7 8 . D o w n lo a d e d fro m http://www.bmj.com/ 
work_tkptsnrmmve2zo3pu3txm44hsa	----	Economia Experimental: um breve guia teórico e prático Economia Experimental: um breve guia teórico e prático Resumo Devido à natureza da pesquisa econômica, são limitadas as possibilidades de obter evidências a partir da observação do mercado natural. Dessa forma, os experimentos de laboratório se colocam como uma ferramenta relevante para obtenção de dados econômicos, bem como para teste de hipóteses comportamentais. Esses experimentos são descritos não só com relação à tipologia, categorizada de diferentes formas dentro da sua própria literatura, mas também quanto à fundamentação metodológica, através do modelo Hipotético-Dedutivo, enraizado na tradição empirista. Da análise do modelo HD, emerge o conceito de controle experimental, onde é apresentado um segundo modelo científico, o design experimental perfeitamente controlado (GUALA, 2005). São discutidos o sucesso preditivo das hipóteses, o problema da validade externa e o uso de incentivos monetários na metodologia em economia experimental. Ainda é considerado que, no desenho de um bom experimento, sejam refletidas questões como procedural regularity, motivação, unbiasedness e calibração. Palavras-chave Metodologia experimental, experimentos de laboratório, design experimental Abstract Due to the nature of economic research, the possibilities of obtaining evidence from the natural market observation are limited. Thus, laboratory experiments stand as a relevant tool to obtain economic data, as well as to test behavioral hypotheses. These experiments are described not only with regard to type, categorized in different ways within their own literature, but also the methodological foundation, through the Hypothetical-Deductive model, settled in the empiricist tradition. From the analysis of the HD model, emerges the concept of experimental control, in which is presented a second scientific model, the perfectly controlled experimental design (GUALA, 2005). Are discussed the hypotheses predictive success, the problem of external validity and the use of monetary incentives in experimental economics methodology. Yet it is considered that, in designing a good experiment, it is relevant to reflect on issues such as procedural regularity, motivation, unbiasedness and calibration. Keywords Experimental methodology, laboratory experiments, experimental design Classificação JEL Introdução As teorias econômicas são elaboradas para explicar as atividades de mercado. Essas teorias são freqüentemente baseadas em hipóteses comportamentais, para as quais existe uma possibilidade prática muito pequena de se obter evidências a partir da observação do mercado natural. Como conseqüência de problemas com a obtenção de dados, os economistas freqüentemente se vêem forçados a avaliar teorias com base na sua plausibilidade; ou em fatores intrínsecos, como elegância e consistência interna. O interesse dos economistas por métodos de laboratório começou, de acordo com Davis e Holt (1993), a partir das décadas de 1940 e 1950. O pioneiro foi Edward Chamberlin que, em 1948, realizou com seus alunos 1 experimentos de mercado focalizados nas previsões da teoria neoclássica de preços. A partir dos primeiros experimentos de Chamberlin, a economia experimental evoluiu no sentido do teste de implicações comportamentais da teoria dos jogos não- cooperativos. Nesses experimentos, o mercado não era imitado – na medida em que os payoffs eram dados de forma tabular, suprimindo estruturas de custo e demanda, mas facilitando o cálculo do equilíbrio do jogo. Mais tarde, começaram a aparecer os experimentos de decisão individual, com ambientes ainda mais simples, utilizados para testar o conteúdo comportamental dos axiomas da teoria da utilidade esperada. A economia experimental constitui assim um campo relativamente recente na ciência econômica. Não obstante, não existe razão inerente para que dados econômicos relevantes não possam ser obtidos através de experimentos de laboratório. Pelo contrário, experimentos de laboratório têm a vantagem de permitir um teste mais direto de hipóteses comportamentais, resolvendo parcialmente o problema com obtenção de dados para testes desse tipo. Por exemplo, uma das lições mais importantes da pesquisa laboratorial é a importância de regras de troca e instituições na determinação do resultado de mercado (DAVIS & HOLT, 1993). Outras qualidades dos experimentos de laboratório são descritas por Feltovich (2011): o pesquisador possui substancialmente 1 Cabe destacar que um de seus alunos era Vernon Smith, consagrado em 2002 com o Prêmio Nobel de Economia precisamente por sua contribuição no desenvolvimento da economia experimental. mais informação sobre o ambiente de experimentação do que no campo; o controle do experimento em laboratório permite ao pesquisador variar os parâmetros de maneira sistemática, com facilidade, e ainda pode coletar informações as quais os pesquisadores de campo não tem acesso. dd Apesar do crescimento e desenvolvimento da economia experimental nas últimas décadas, a ciência economica não pode ser considerada uma ciência experimental. Muitas críticas são feitas à inabilidade dos economistas de reproduzir experimentos controlados, sobretudo sobre o controle dos diversos fatores importantes a um experimento. Contrariando essas críticas, Smith (2002) afirma: I doubt that there are many non-experimentalists in economics that understand or appreciate the essence of our methodology: (1) to motivate behavior in laboratory economic environments whose equilibrium properties are known to the experimental researcher or designer; and (2) to use the experimental observations to test predictive hypotheses derived from one or more formal or informal models of these equilibrium properties. The way economics is commonly researched, taught and practiced implies that it is a à prior science, in which economic problems come to be understood by thinking about them. This generates logically correct, internally consistent, theories. Field data are then used for “testing” between alternative econometric model specifications within basic equilibrium theories that are not subject to challenge. If experiments are used, the purpose is to get better field observations on demand, labor supply, investment and other avenues of agent choice behavior, not to study market performance under alternative institutions of contract. O autor ainda explicita a vantagem de, em laboratório, podermos testar teorias complexas, com mínima dependência de hipóteses auxiliares. 1. Tipos de Experimentos As principais vantagens oferecidas por métodos de laboratório (DAVIS & HOLT, 1993), em qualquer ciência, são a replicabilidade e o controle. A replicabilidade se refere à capacidade de outros pesquisadores reproduzirem o experimento, verificando as descobertas de forma independente. Já o controle se refere à capacidade de manipular as condições de laboratório de tal forma que o comportamento observado possa ser usado para avaliar teorias e políticas alternativas. A ausência de replicabilidade é um problema inerente a toda pesquisa empírica não-experimental: os dados observados em processos naturais são únicos e ocorrem em um ambiente não replicável espacial e temporalmente, no qual fatores não-observáveis estão em constante mudança. O problema é ainda maior em economia, porque a coleta e verificação independente de dados econômicos são bastante dispendiosas. O compromisso com a replicabilidade exige que aquele que conduz o experimento considere em detalhes os procedimentos apropriados para o desenho e administração do experimento, bem como padrões para sua avaliação. O procedimento apropriado para cada caso irá depender do tipo de experimento considerado. Em Davis e Holt (1993), encontram-se tipificadas três categorias de experimentos, quais sejam: (i) testes de hipóteses comportamentais: o uso mais comum de métodos experimentais em economia é a falsificação. Ao construir um ambiente de laboratório que satisfaz as hipóteses estruturais de determinada teoria, é dada a melhor chance possível para testar suas implicações comportamentais (a construção desses ambientes é difícil e envolve interação entre os proponentes da teoria e o experimentador); (ii) theory stress tests: nesse tipo de experimento é realizado um exame da sensibilidade das previsões de uma teoria a violações de determinadas hipóteses. Dessa forma, coloca-se sob teste a robustez da teoria considerada e do seu poder preditivo, quando avaliados através da flexibilização de determinadas hipóteses simplificadoras; (iii) identificação de regularidades empíricas: se refere aos experimentos que buscam documentar regularidades inesperadas na relação entre determinadas variáveis econômicas. Guala (2005) baseia sua análise numa classificação dos tipos de experimentos econômicos distinta da apresentada por Davis e Holt (1993). Guala (2005) propõe uma tipificação 2 baseada nos objetivos do experimento, a saber: (a) Speaking to theorists, (b) Searching for facts e (c) Whispering in the ear of princes. A primeira dessas categorias abrange todos os experimentos que objetivam o teste de hipóteses de modelos teóricos formais. A segunda inclui aqueles experimentos voltados para a investigação de fenômenos que não podem ser explicados pelas teorias da época. A terceira, por fim, abrange experimentos que buscam elucidar ou oferecer suporte à formulação de políticas. Uma categorização alternativa dos tipos de experimentos pode ser encontrada em Croson (2003), que distingue entre três tipos: 2 Retirada dos trabalhos de Alvin Roth (1986, 1988, 1995). (1) experimentos que testam predições de teorias: sugere-se testar não uma predição pontual da teoria (exemplo: 100% dos casos se comportam da maneira x), mas uma predição do tipo comparative static (exemplo: a maioria dos casos se comporta da maneira x). Pode-se testar uma única teoria, teorias concorrentes ou realizar um stress test (onde uma teoria que já foi corroborada em laboratório é testada novamente relaxando-se alguma de suas hipóteses); (2) experimentos que investigam anomalias teóricas; (3) experimentos que visam instruir a elaboração de políticas públicas. No que diz respeito ao desenho e preparação do experimento, Croson (2003) faz algumas observações importantes: a necessidade de aprovação do projeto por um comitê de ética, a importância de se filtrar da teoria apenas o que realmente se quer testar, o tamanho máximo de três páginas das instruções do experimento, o fato de que dados de experimentos são em menor número que aqueles provenientes de outras fontes e que, sendo assim, utiliza-se estatística não-paramétrica para sua análise. A autora também fornece algumas dicas para lidar com objeções a esse tipo de trabalho, salientando que as teorias testadas, em sua maioria, não especificam circunstâncias particulares nas quais seriam verdadeiras. Uma teoria prediz um determinado comportamento sempre que suas hipóteses forem atendidas, tanto num ambiente controlado de laboratório quanto no mundo real. Além disso, quanto à objeção de que estudantes não escolhem como “pessoas reais”, Croson (2003) ressalta que estudantes são pessoas reais e que as teorias explicam o comportamento das pessoas em geral, inclusive de estudantes. Harold e List (2004), entretanto, apontam duas desvantagens do uso de estudantes. A primeira é que eles são mais jovens e com melhor educação do que a população em geral, além do fato de usualmente possuírem características sócio-demográficas semelhantes, o que reduz sua representatividade de uma população heterogênea. A segunda diz respeito ao conhecimento destes. Apesar de serem inteligentes, muitas vezes falta aos estudantes conhecimento especializado no ambiente do experimento. 2. Fundamentação Metodológica A metodologia científica subjacente aos testes em laboratório se encontra fundamentada no modelo Hipotético-Dedutivo (modelo HD), enraizado na tradição empirista, de acordo com a qual a evidência empírica constitui a fonte primeira de validação das teorias científicas. A maioria dos economistas concorda com esse princípio filosófico fundamental. Guala (2005) ressalta que, se as idéias científicas devem ser testadas contra os fatos, é crucial que se defina precisamente o que são esses fatos e, então, como eles podem ser utilizados para o fim proposto. Antes de expor em algum detalhe o modelo HD, cabe distinguir entre alguns conceitos cujos significados são muitas vezes confusos na literatura da área. Quatro conceitos fundamentais no modelo que será discutido são: fato e evidência, dados e fenômeno. Fato é um conceito absoluto, enquanto evidência é um conceito relacional. Nesse sentido, quando teorias científicas são submetidas a teste, um fato pode ser usado como evidência em favor ou contra determinada hipótese sob consideração (GUALA, 2005). Quando experimentos são realizados, é fundamental identificar quais os tipos de fatos que servem como evidência científica em diferentes estágios da pesquisa. No que tange o conceito de dado, tem-se a idéia de uma entidade observável. Os dados são confusos, sugestivos e idiossincráticos (GUALA, 2005). Já o fenômeno é uma entidade não-observável, que pode ser derivada dos dados através da análise teórica. O que os cientistas buscam, então, é elaborar teorias que expliquem como e porque ocorrem determinados fenômenos, que podem ser derivados da observação de dados observáveis. Nesse sentido, os fenômenos organizam e descrevem os dados. O teste de hipóteses é um elemento fundamental na pesquisa experimental; tanto nos experimentos do tipo 3 Searching for facts, que objetivam a confirmação da existência de determinados fenômenos; quanto em experimentos do tipo Speaking to theorists, que visam ao teste de explicações teóricas de fenômenos. A centralidade do teste de hipóteses na ciência experimental é inteiramente refletida no modelo HD. Os principais representantes desse modelo na ciência econômica são Karl Popper, que influenciou imensamente a metodologia da economia; e Milton Friedman, economista que consolidou a utilização do modelo HD nesse campo. A tradição empirista subjacente ao modelo HD apóia-se em dois conceitos fundamentais: evidência empírica e lógica (GUALA, 2005). Não obstante, existem visões distintas no interior do arcabouço hipotético- dedutivo acerca do tipo de lógica necessária e suficiente para a ciência. Essas divergências referem-se à necessidade (e possibilidade) ou não de uma lógica indutiva, além da lógica dedutiva, como ferramenta de comprovação de teorias científicas. O modelo HD básico pode ser esquematizado como segue: 3 Ver tipologia empregada por Guala (2005) na subseção 3.1.1. Esquema A (refutação) Esquema B (confirmação) (1) H e (1’) H e (2) ~ e (2’) e _________________ ____________________ (3) ~ H (3’) provavelmente H Fonte: Guala (2005, p.49) De acordo com o Esquema A, tem-se primeiro uma determinada hipótese científica H que implica necessariamente uma evidência empírica específica e. No segundo momento (onde entra em cena o teste experimental), tem-se a negação dessa evidência empírica através de um contra-exemplo encontrado na realidade factual. Através da lógica dedutiva segue, necessariamente, que H é falsa. No Esquema B, encontra-se ilustrado um argumento indutivo. Como no Esquema A, no primeiro momento tem-se uma hipótese H que implica necessariamente determinada evidência empírica e. Entretanto, no segundo momento, essa evidência e é encontrada na realidade através da experimentação. Dessa forma, segue-se através da lógica indutiva que H provavelmente é verdadeira. Existe uma assimetria fundamental entre esses dois esquemas lógicos. Enquanto no Esquema A a conclusão segue logicamente das premissas 4 ; no Esquema B, pelo contrário, não pode-se deduzir logicamente que H é verdadeira através das premissas 5 . Essa assimetria reflete os dois tipos de inferência lógica subjacentes a cada esquema: no caso A, a inferência lógica dedutiva, já consolidada desde o início do século XX; e, no caso B, a inferência lógica indutiva, cujas bases e regras formais ainda não foram estabelecidas. Alguns filósofos, como Karl Popper (2001), chegam ao ponto de rejeitar completamente a possibilidade lógica do segundo esquema. A metodologia popperiana tem como ponto de partida (POPPER, 1999) a resolução que o filósofo encontrou para o Problema Lógico da Indução de Hume. O problema pode, de maneira simplificada, ser formulado da seguinte maneira: podem as inferências indutivas conduzir a teorias explanativas universais verdadeiras? Qual a justificativa para crer que o futuro irá ser como foi o passado? A resposta de Popper a 4 Essa forma de argumento é denominada na literatura de modus tollens, constituindo inferência dedutiva válida. (GUALA, p.50, 2005) 5 Tal tipo de inferência é conhecido na literatura como a falácia chamada afirmando o conseqüente. (GUALA, p.50, 2005) esse problema coincide com a solução de Hume de que observações empíricas não são capazes, ou seja, não são razões suficientes para a justificativa de proposições universais verdadeiras. Popper propõe então uma generalização desse problema: podem as experiências empíricas conduzir a teorias explanativas verdadeiras, ou falsas? A essa pergunta Popper tem uma resposta positiva, na medida em que “... a admissão da verdade de asserções de teste às vezes nos permite a alegação de que uma teoria explanativa universal é falsa” (POPPER, p.18, 1999). Através dessa resposta Popper (2001) constrói todo seu critério de demarcação de ciência, crescimento do conhecimento científico e metodologia científica propriamente dita. Uma teoria é científica se plausível de ser falseada; se assim não for, será um dogma mantido unicamente por meio da fé. Essa visão da ciência sofreu ataques em diversas frentes (GUALA, 2005). O principal problema apontado é que os cientistas não propõem teorias com o propósito de rejeitá-las. Eles tencionam utilizá-las, tanto para realizar previsões acerca do futuro quanto para intervir na realidade, modificando seu estado atual. Nesse sentido, muitos filósofos apontaram que, para justificar tais atividades, é insuficiente sustentar apenas que determinada teoria não foi ainda falseada. É importante, também, encontrar alguma forma de demonstrar que a teoria escolhida é de alguma maneira melhor que as rivais disponíveis 6 . O modelo HD, ainda que amplamente utilizado, apresenta um problema fundamental que pode ser exposto através do seguinte esquema, ampliado do anteriormente exposto: Esquema A* (refutação) Esquema B* (confirmação) (4) (H & I & K) e (4’) (H & I & K) e (5) ~ e (5’) e _________________ ____________________ (6) ~ H (6’) provavelmente H 6 Não cabe trazer aqui toda a discussão a respeito desse tema, na medida em que foge ao propósito do trabalho. Um debate mais aprofundado pode ser encontrado em Watkins (1984), Worral (1989) e David Miller (2002) – apud Guala (2005). Vale ressaltar, entretanto, que atualmente a grande maioria dos filósofos da ciência acredita que a inferência indutiva seja indispensável à metodologia científica (GUALA, p.52, 2005). Fonte: Guala (2005, p.57) Os Esquemas A* e B* apresentam dois elementos novos: I, as condições iniciais mensuradas antes de realizar o experimento; e K, hipóteses auxiliares e condições ceteris paribus. A introdução desses novos elementos torna os esquemas anteriormente apresentados mais verossímeis, mas a um alto custo. Os esquemas A* e B* diferem crucialmente dos esquemas A e B: o argumento exposto em A* não é dedutivo. As regras da lógica dedutiva permitem inferir a seguinte conclusão das premissas apresentadas em A*: (6’’) ~ (H & I & K); o que significa que ou H, ou I, ou K, ou quaisquer dois deles, ou os três, são falsos. Nenhuma conclusão além dessa é logicamente válida através de inferência dedutiva. Esse impasse é conhecido na literatura como o Problema de Duhem-Quine: todos os testes de uma teoria são, na verdade, testes conjuntos onde não apenas as hipóteses teóricas estão sendo testadas, mas também todas as hipóteses auxiliares. Dessa forma, apenas a lógica dedutiva se mostra insuficiente para falsificar hipóteses científicas e, conseqüentemente, para justificar os testes de hipóteses. De acordo com a perspectiva do modelo HD, a diferença entre testes experimentais e não-experimentais repousa na confiabilidade que pode ser atribuída às condições iniciais e auxiliares (I e K). Experimentos de laboratório permitem que as condições iniciais (I) sejam medidas sob circunstâncias ideais, podendo ser calibradas de acordo com as necessidades teóricas. O mesmo pode-se dizer em relação às hipóteses auxiliares (K), na medida em que, no laboratório, é possível monitorar e isolar o experimento de forma a evitar interferências indesejadas. Desse processo que emerge o conceito de controle do experimento: quando a confiança do experimentador nas condições iniciais e nas hipóteses auxiliares é alta, então existe um alto grau de controle do experimento. Nesse sentido, pode-se dizer que, em experimentos de laboratório, o problema de Duhem-Quine pode ser melhor administrado e reduzido, gerando resultados mais confiáveis do ponto de vista metodológico. 3. Causação e Controle Experimental Nessa subseção será apresentado um segundo modelo científico, qual seja, o design experimental perfeitamente controlado (GUALA, 2005). A maioria dos experimentos científicos está relacionada direta ou indiretamente com essa metodologia, na medida em que esse modelo permite a obtenção das melhores condições possíveis para a realização do teste de hipóteses causais. Existem dois elementos fundamentais que caracterizam o modelo de experimento perfeitamente controlado (GUALA, 2005): (1) a idéia de que experimentos científicos envolvem a comparação de duas situações que diferem apenas em um aspecto, chamado de tratamento; (2) o uso do processo de randomização como meio de obtenção de uniformidade nos dados antes do tratamento sob as duas situações ser comparado. O conceito de tratamento é definido como: A treatment is an intervention or artificial variation imposed by the experimenter, (…). (In medicine, the intervention typically takes the form of a drug given to some patients; in experimental economics, it may consist, for instance, in a higher level of incentives, or in a different amount of information given to subjects.) (Guala, p.64, 2005) O modelo de design experimental perfeitamente controlado é baseado na lógica de comparação e variação controlada. Os pesquisadores lançam mão de evidências comparativas, i.e., evidências de que determinado grupo de pessoas se comporta, sob certo design experimental, de maneira distinta ou idêntica a outro grupo sob circunstâncias experimentais diferentes. A variação dessas circunstâncias experimentais deve ser minuciosamente planejada e controlada, na medida em que é importante que os grupos estejam situados sob condições que difiram em apenas um parâmetro (o tratamento). Essa uniformidade almejada pode ser obtida de maneiras distintas. A primeira maneira é o controle direto ou matching, definido como ... the procedure of assigning to each group subjects that are identical with respect to some key characteristics, with the explicit aim of achieving groups that are as similar as possible. (Guala, p.66, 2005) Quando não é possível obter o nível desejado de uniformidade entre grupos através do processo de matching, as diferenças devem ser neutralizadas por meio do processo de randomização. A idéia subjacente ao processo randômico é que, através de uma distribuição aleatória dos indivíduos entre os grupos experimentais e de controle, os erros ou variações com respeito a algum fator não identificado (remanescentes do processo de matching) serão distribuídos uniformemente entre os grupos. Dessa forma, se fosse possível realizar de maneira perfeita o processo de matching, a randomização não se faria necessária. 3.1 Predição Após a realização de um experimento, os cientistas utilizam os dados empíricos obtidos para identificar a existência de padrões ou fenômenos e, então, buscam explicar esses fenômenos através de teorias científicas ou hipóteses causais (BOGEN e WOODWARD, 1988). Essa prática não é de forma alguma trivial, na medida em que os dados não indicam de maneira única e inequívoca tanto os fenômenos subjacentes quanto suas possíveis causas (GUALA, 2005). Nesse sentido, pode-se afirmar que as hipóteses experimentais são tipicamente subdeterminadas pela evidência empírica. Um dos critérios mais amplamente utilizados para superar essa subdeterminação é o sucesso preditivo das hipóteses. A partir desse critério, uma hipótese é considerada válida se possui bom poder preditivo. Guala (2005) argumenta que esse critério é falho, na medida em que são ignorados aspectos fundamentais da inferência científica: os fatores de background que determinam se a evidência confirma ou refuta uma hipótese. Uma das razões para a falibilidade do critério de sucesso preditivo é colocada da seguinte forma: An unfortunate feature of human psychology is that our intuitions about inductive matters seem to be systematically disturbed by deductive biases. It is very important therefore that we resist the temptation to impose on inductive inferences requirements that are appropriate for deductive ones only. (Guala, p.85, 2005) Um exemplo típico da idéia exposta nessa passagem é a crença de que para e confirmar H, basta apenas que e seja conseqüência lógica de H; i.e., existe uma crença de que a confirmação empírica é nada além de dedução lógica escrita “ao contrário”. Entretanto, se fosse esse o caso, o teste empírico perderia sua utilidade na escolha entre hipóteses alternativas, dado que toda evidência pode ser deduzida de uma infinidade de hipóteses distintas. Muitos filósofos sustentam que H deve não apenas implicar e, mas também prevê-la. Esse critério preditivo impõe um requerimento temporal sobre a lógica indutiva, sustentando que uma evidência e só é capaz de confirmar uma hipótese H se prevista por H. Dessa forma, é necessário que a previsão tenha sido derivada de H num momento anterior à observação de e. Tem-se então que to explain is to derive from a theory/hypothesis some evidence that has already been observed; to predict is to derive some evidence that will be observed. The temporal requirement says that only evidence that has been successfully predicted can provide inductive support to a hypothesis . (Guala, p.86, 2005) O critério preditivo de avaliação de uma teoria científica deve soar familiar aos economistas, dado que se trata de uma idéia bastante disseminada na ciência econômica. O requerimento de sucesso preditivo para validação de uma hipótese foi defendido por Milton Friedman em The Methodology of Positive Economics (1953). Friedman argumenta que as teorias são apenas ferramentas para antecipar eventos futuros. Nesse sentido, as teorias não devem buscar explicar a realidade, mas apenas antecipar acontecimentos passíveis de serem previstos; o único teste relevante da validade de uma teoria ou hipótese é a comparação de suas previsões com a experiência. Essa visão da ciência é conhecida como instrumentalismo, para o qual “the goal of science is to predict what happens in the natural and social world; there is no attempt to explain the deep mechanisms of reality” (GUALA, 2005, p.86). O oposto do instrumentalismo é denominado realismo, doutrina para a qual o objetivo da ciência é descobrir a verdadeira estrutura e funcionamento dos mundos social e natural. Existem duas críticas principais ao instrumentalismo (GUALA, 2005). A primeira diz respeito à seguinte questão: o que se deve fazer quando uma teoria não mais é capaz de realizar predições corretas? No caso da ciência econômica, como um economista deve alterar um modelo quando suas previsões não mais se concretizam? Uma visão puramente instrumentalista da ciência não é capaz de responder essa pergunta, na medida em que é necessário saber como as coisas funcionam para saber o que deve ser corrigido e alterado. A segunda crítica é referente ao fato de que, muitas vezes, os cientistas não desejam apenas fazer previsões, mas também realizar intervenções. Um instrumento ou modelo puramente preditivo não é capaz de dizer como prevenir determinados resultados indesejados. Essas críticas não afetam o requerimento de sucesso preditivo para a inferência indutiva, porque esse critério pode ser justificado por vias não instrumentalistas. Popper é um exemplo de um cientista realista que defende esse critério 7 . Popper (2001) baseia o critério de sucesso preditivo na suposta diferença entre a chamada ciência propriamente 7 Em economia, o seguidor de Popper mais reconhecido é Mark Blaug, com a obra “A Metodologia da Economia” (1994). dita e outras disciplinas pseudo-científicas. O primeiro tipo de ciência realiza previsões precisas que podem ser testadas e mensuradas; enquanto o segundo tipo quase sempre baseia suas hipóteses em eventos passados e, quando realiza previsões, normalmente erra. Uma metáfora presente na obra de Popper que ilustra bem o requerimento de sucesso preditivo é a que segue: uma hipótese deve “colocar o pescoço pra fora e se submeter ao machado da refutação”. A grande maioria dos economistas acata esse requerimento e condena o uso de hipóteses ad hoc. O argumento é que, depois de obtidos os resultados, é muito fácil alterar a teoria proposta de forma que ela funcione, ainda que a teoria seja em si errônea. Dessa forma, o uso de hipóteses ad hoc é considerado uma forma de cheating. Ainda que Popper defenda o critério preditivo, ele não desenha qualquer ligação entre esse critério e a lógica indutivista 8 . Como já elucidado em seção anterior, para Popper a única lógica científica válida é a lógica dedutiva: uma teoria jamais pode ser provada verdadeira, podendo apenas ser provada falsa (quando for o caso). Guala (2005) pretende mostrar que a evidência empírica também pode conter ensinamentos positivos sobre as hipóteses científicas, i.e., existe uma lógica indutiva válida, ainda que não plenamente estabelecida como a lógica dedutiva. Para isso, é preciso aprofundar a análise da confirmação de hipóteses via experimentos, o que significa que é necessário estabelecer a ligação entre o sucesso preditivo e a (provável) verdade de uma hipótese. Para tal, Guala (2005) refere-se a um argumento conhecido como “argumento da coincidência”, contido na obra The Aim and Structure of Physical Theory (1906), de Duhem. Nesse argumento, Duhem (1906) compara as predições de uma teoria com as gavetas de uma cômoda. Cada gaveta tem um formato diferente, bem como cada fenômeno ou lei empírica que deve ser guardada na cômoda. Uma boa teoria deve ser capaz de afirmar com antecedência qual gaveta vai abrigar qual fenômeno específico. Suponha que a cômoda (teoria) tenha sido fabricada sem nenhum plano subjacente, ou seja, de forma aleatória. Se os novos fenômenos observados se encaixarem perfeitamente nas gavetas dessa cômoda isso parecerá a todos uma coincidência incrível. O que cabe ressaltar é que “the coincidence argument seems to draw a strong link between predictive success and the truth of scientific hypothesis. (Guala, p.90, 2005)”. 8 Como se sabe, Popper era um anti-indutivista. Ver Popper (1999, 2001). Filósofos contemporâneos propuseram versões mais refinadas desse argumento, mas a intuição fundamental permanece a mesma da formulação de Duhem: o sucesso preditivo de uma hipótese parece revelar a sua verdade porque qualquer explicação alternativa faria com que o histórico de sucessos preditivos da hipótese fosse um grande milagre. No presente trabalho, esse argumento se torna interessante na medida em que fornece suporte à confirmação de hipóteses científicas via experimentos empíricos. Não obstante, o conceito de sucesso preditivo não incorpora um aspecto fundamental a toda ciência experimental: os fatores de background. A confiança crescente dos economistas experimentais deriva da repetição exaustiva e das numerosas checagens dos procedimentos para controlar os possíveis erros na implementação dos experimentos. Uma inferência experimental é tão forte quanto à capacidade de controle dos fatores de background que podem comprometer o próprio processo de inferência. 3.2 Validade do Experimento A economia experimental permite a variação controlada de fatores causais ao mesmo tempo em que mantém todas as outras circunstâncias relevantes fixas, de forma a possibilitar a observação dos efeitos de cada fator isoladamente sobre o sistema como um todo. As condições de laboratório permitem que as investigações sejam levadas a cabo sob condições privilegiadas, nas quais os fatores de background são mantidos constantes. No entanto, os economistas não estão interessados em realizar inferências sobre relações causais que ocorrem apenas sob condições especiais, mas sim em corroborar hipóteses científicas que podem ser aplicadas no mundo real. Essa questão é conhecida como o problema da validade externa. John Hey (1991) compreende os experimentos de laboratório como uma maneira de realizar uma seleção preliminar entre teorias que, em última instância, visam a explicar fenômenos do mundo real. Hey (1991) salienta que a economia experimental permite o tratamento distinto de duas questões cruciais: (i) verificar que a teoria está correta dadas as especificações apropriadas, e (ii) testar se a teoria sobrevive à transição entre o plano puramente teórico e o mundo real. Se uma teoria não é capaz de sobreviver ao teste empírico nem mesmo sob condições especialmente controladas, então é muito pouco provável que essa teoria funcione sob condições muito mais complexas no mundo real. Dessa forma, o problema da validade externa nem sequer emergiria. Existe uma idéia importante nessa abordagem: preocupações sobre validade externa não devem ser levantadas em relação a todos os experimentos econômicos. Como ressalta Guala Real-world applicability can be the goal of a whole research program, and it is perfectly reasonable to focus on the investigation of relatively simplified or abstract settings in the early stages of the program itself. (Guala, p.148, 2005) A posição de Guala (2005) é de que o problema da validade externa é um problema em si empírico, que deve ser resolvido através da combinação apropriada de evidências de laboratório e evidências do mundo real. O papel da economia experimental é intermediar as relações entre a teoria abstrata e a solução do problema concreto no mundo real. Nesse sentido, “experiments resemble models, for they are systems that are artificially isolated from the noise of the real world – but with the added bonus of a higher degree of concreteness”. (Guala, p.229, 2005) 3.3 Incentivos Monetários A questão dos incentivos monetários é centro de grande parte das controvérsias metodológicas em economia experimental. Entretanto, a presença de incentivos monetários adequados (conceito explicitado no que segue) é atualmente um pré- requisito indispensável para a publicação de papers em revistas científicas de economia. Os primeiros experimentos realizados em economia não apresentavam o que se chama hoje de incentivos monetários adequados. As normas que regulam esses incentivos foram estabelecidas apenas mais tarde, nos trabalhos de Vernon Smith (1976, 1982) e Luis Wilde (1980). Existem quatro regras básicas em relação ao estabelecimento dos incentivos financeiros em um experimento: (i) não-saciedade: escolher uma recompensa média tal que, dentre duas alternativas equivalentes, os indivíduos escolham sempre aquela que pagar mais que a recompensa média; (ii) saliência: a recompensa deve ser crescente para resultados posit ivos e decrescente para resultados negativos no experimento; (iii) dominância: a recompensa deve dominar qualquer outro custo subjetivo de participar do experimento; (iv) privacidade: cada sujeito no experimento recebe informação apenas sobre o seu próprio payoff. Em Hertwig e Ortmann (2001) encontram-se quatro argumentos a favor da utilização de incentivos monetários em experimentos econômicos. Primeiro, os incentivos monetários são mais fáceis de serem implementados do que outros tipos de incentivos; segundo, o dinheiro é um meio particularmente apropriado para cumprir o requerimento de não-saciedade; terceiro, a teoria econômica é diretamente traduzida em experimentos com incentivos financeiros; e, quarto, incentivos monetários reduzem a variabilidade no desempenho dos indivíduos. Os dois primeiros argumentos apóiam-se no fato de que o dinheiro é um bem universalmente atrativo na cultura moderna; praticamente todas as pessoas se importam com dinheiros e sempre querem ter mais. Os economistas tendem a aceitar o procedimento metodológico de utilizar incentivos financeiros nos seus experimentos sem questionar porque esses incentivos são importantes. Existe pouca discussão acerca dos mecanismos que relacionam o uso de incentivos ao comportamento experimental. De acordo com Daniel Read (in press, apud Guala, 2005), existem pelo menos três histórias diferentes sobre os efeitos dos incentivos monetários sobre o comportamento dos indivíduos: (i) estímulo cognitivo: os incentivos induzem o sujeito a pensar com mais afinco e cuidado; (ii) redirecionamento motivacional: os incentivos são capazes de alterar o que o sujeito percebe como seus objetivos; e (iii) Pavlovian trigger: a resposta honesta só pode ser dada na presença de incentivos. O terceiro argumento apresentado é aquele que os economistas mais recorrentemente utilizam para defender o uso de incentivos em seus experimentos. Ele se baseia na hipótese de que os indivíduos sofrem de uma grande quantidade de “falsa consciência”. A idéia é que todas as pessoas vêem a si mesmas como boas e altruístas, mas sob as condições apropriadas (quando o dinheiro está em jogo) todas agem como os agentes egoístas postulados pela teoria econômica. Em sendo assim, apenas fazer perguntas hipotéticas (o que você faria se...) ou usar incentivos outros que não o dinheiro não é suficiente para revelar o comportamento econômico real dos indivíduos. De fato, para um pesquisador que usa pagamentos hipotéticos, o ônus da prova é realizar uma sessão paga adicional e provar que o comportamento é fundamentalmente o mesmo (FELTOVICH, 2011). Dessa forma, a única maneira de saber se os pagamentos são insuficientes é aumentar as quantias. Incentivos em termos monetários são preferíveis a outros bens físicos, na medida em que os indivíduos podem atribuir valores privados muito diferentes para bens físicos (DAVIS e HOLT, 1993). Além disso, payoffs monetários são altamente divisíveis e apresentam a propriedade de não-saciedade: é mais verossímil assumir que as pessoas sempre querem mais dinheiro do que assumir que elas sempre querem mais, por exemplo, chocolate. Em alguns experimentos, os payoffs são determinados não na moeda corrente do país, mas em uma “moeda de laboratório” como, por exemplo, “tokens” ou ”francs”. Estabelece-se uma taxa de conversão entre a moeda fictícia de laboratório e a moeda real, de tal forma que, ao final do experimento, o ganho de cada participante é convertido em moeda corrente. Considerações Finais sobre o Desenho de um Experimento O desenho de um experimento deve permitir que o pesquisador utilize as duas principais vantagens da metodologia experimental: replicabilidade e controle 9 . Davis e Holt (1993) consideram útil no desenho de um bom experimento refletir sobre as seguintes categorias: (i) procedural regularity, envolve o desenvolvimento de uma rotina capaz de ser replicada; (ii) motivação; (iii) unbiasedness e (iv) calibração, importantes aspectos de controle do experimento; e (v) design paralellism, referente às inter-relações entre o contexto experimental e a ocorrência natural do processo econômico. Antes de proceder à análise mais detalhada dessas categorias, cabe delinear a terminologia que será empregada no decorrer do trabalho. Em economia experimental, os termos referentes às partes de um experimento ainda não se encontram plenamente estabelecidos na literatura, o que torna fundamental o esclarecimento dos conceitos que estarão sendo, ao longo do trabalho, atribuídos aos seguintes termos 10 : - sessão: uma seqüência de períodos, jogos ou de outras tarefas de decisão que envolva o mesmo grupo de indivíduos, no mesmo dia; - cohort: um grupo de indivíduos que participou de uma sessão; 9 Ambas as vantagens foram já apresentadas na seção 4.1. 10 A terminologia apresentada segue Roth (1990). O uso desses termos de maneira distinta àquela empregada nesse trabalho é comum na literatura, particularmente o uso do termo experimento para indicar o que foi definido aqui como sessão. - tratamento: um ambiente (configuração) único de tratamento das variáveis, ou seja, um conjunto único de informações, experiência, incentivos e regras; - célula: um conjunto de sessões com as mesmas condições de tratamento experimental; - design experimental: a especificação das sessões em uma ou mais células de forma a avaliar as hipóteses sob consideração; - experimento: uma coleção de sessões em uma ou mais células relacionadas. Retornando à análise das cinco categorias propostas por Davis e Holt (1993), tem-se primeiramente o aspecto de procedural regularity. Ao realizar um experimento, é fundamental que o pesquisador sinta uma “pressão acadêmica” no sentido da potencial replicação do seu experimento por outros pesquisadores. Para tornar possível a replicação do experimento, é fundamental que os procedimentos aplicados e o ambiente criado sejam padronizados de tal forma que apenas as variáveis de tratamento sejam ajustadas. Além disso, é muito importante que tanto os procedimentos quanto as instruções sejam documentados. Nas palavras de Davis e Holt (1993) In general, the guiding principle for standardizing and reporting procedures is to permit a replication that the researcher and outside observers would accept as being valid. (DAVIS e HOLT, p.22, 1993) Nesse sentido, o pesquisador deve adotar práticas padrão, incluindo sua constante documentação, em relação aos seguintes aspectos: - instruções; - exemplos ilustrativos e testes de compreensão (contidos nas instruções); - critérios de resposta a possíveis questionamentos (nenhuma informação além daquelas contidas nas instruções); - especificar claramente o tipo de incentivo (monetário ou outro); - a presença de versões piloto ou períodos de prática do experimento, sem recompensas; - a amostra de indivíduos e o método de recrutamento dos participantes; - o número e nível de experiência dos participantes; - métodos de “casamento” entre indivíduos e papéis no experimento; - data, localização e duração das sessões experimentais; - o ambiente físico, o uso de assistentes, computadores ou outros instrumentos; - irregularidades procedimentais em sessões específicas. Além disso, Davis e Holt (1993) salientam a importância de ler as instruções do experimento em voz alta, de tal forma que todos tenham consciência de que todos estão cientes das regras do jogo. A leitura em voz alta também evita que alguns indivíduos terminem a leitura antes que os outros e fiquem entediados com a espera. A segunda categoria proposta por Davis e Holt (1993) para consideração na elaboração de um bom experimento é denominada motivação. Ao desenhar um experimento é importante que os participantes recebam recompensas correspondentes aos incentivos apresentados nas teorias sob consideração. Nesse contexto, emerge o conceito de saliency, que significa que mudanças nas decisões dos indivíduos devem ter impactos significativos em suas recompensas. Saliency pode ser entendido como uma propriedade que requer que o design do experimento apresente as seguintes características: (i) Que os participantes sejam capazes de perceber a relação entre as decisões tomadas e os payoffs das diferentes alternativas; e (ii) Que as recompensas oferecidas sejam grandes o suficiente para se sobreporem aos custos subjetivos de tomar decisões. A recompensa adequada irá variar de acordo com cada tipo de experimento e com os objetivos do pesquisador. A observação de comportamento individual inconsistente ou variável não pode ser necessariamente atribuída a incentivos monetários insuficientes. Não existe quantidade de dinheiro capaz de motivar indivíduos a realizar cálculos além de sua capacidade intelectual. Entretanto, a utilização de incentivos monetários tende a reduzir a variabilidade no comportamento dos indivíduos e, por essa razão, os incentivos monetários são usados na maior parte dos experimentos em economia. A terceira categoria proposta por Davis e Holt (1993) é chamada unbiasedness. Essa categoria diz respeito ao fato de que o experimento deve ser conduzido de forma a não induzir os participantes a se comportarem de alguma maneira particular: os indivíduos não podem perceber determinado comportamento como o correto ou o esperado – a menos que isso faça parte dos objetivos do pesquisador. Em economia experimental, é muito comum que os participantes do experimento busquem tanto agir da maneira esperada, como realizar as escolhas corretas – esse comportamento deve ser evitado ao máximo. Uma maneira de minimizar esse problema é evitar referências a termos econômicos correlacionados com teorias ou correntes de pensamento específicas, que possam viesar as escolhas dos participantes. Dessa forma, recomenda-se despender bastante tempo elaborando e refinando as instruções do experimento. Experimentos piloto e o feedback de pessoas alheias aos procedimentos a serem implementados são excelentes maneiras de detectar problemas de linguagem. A quarta categoria proposta por Davis e Holt (1993) é chamada de calibração. O processo de calibração envolve o estabelecimento de uma base de comparação. O aspecto principal da calibração é o uso de um desenho experimental que permita separar claramente as predições de teorias alternativas. Um experimento bem desenhado requer não apenas a identificação de predições de teorias alternativas, mas também das conseqüências comportamentais de predições rivais. As predições dessas conseqüências comportamentais devem ser suficientemente distintas tal que sejam prontamente diferenciadas da variabilidade comportamental normal dos participantes. A quinta e última categoria proposta por Davis e Holt (1993) é chamada design paralellism. Nesse caso, o que está sob consideração é até que ponto os experimentos devem ser construídos tal que se assemelhem aos fenômenos econômicos naturais. Nessa questão, o pesquisador deve se pautar pelo princípio da parcimônia. Dado que a falsificação de teorias é um dos objetivos da economia experimental, o ambiente de laboratório deve satisfazer as condições apresentadas na teoria sob consideração para que o teste experimental seja válido. Um aumento na verossimilhança do desenho do experimento com o mundo real pode resultar em situações difíceis de serem analisadas em teoria. Em resumo, na hora de desenhar o experimento, o pesquisador deve atentar para: (i) Instruções completas e não-viesadas; (ii) Recompensas financeiras adequadas; (iii) Calibração do experimento; (iv) Focar em poucos tratamentos de interesse, que não analisem a mudança de muitas variáveis ao mesmo tempo; e (v) Escolher o grau correto de complexidade institucional, apropriado ao problema sob investigação. Guala (2005) aponta para a importância de, após definido e desenhado o experimento, submeter todos os aspectos envolvidos a checagem e teste, o que inclui: instruções do experimento, procedimento de pagamento, coleta dos dados, análise dos dados, e assim por diante. Alguns aspectos devem ser checados através de experimentos-piloto, enquanto outros podem ser apenas simulados via experimentos de pensamento. Muitos experimentadores preferem realizar uma ou duas seções efetivas do experimento, e depois pausar por algumas semanas para refletir sobre o desenho do experimento e sobre os dados. Dessa forma, se alguma falha for detectada, o experimento pode ser aplicado novamente. No entanto, muitos consideram que o experimento deve ser realizado uma única vez, após a extensiva checagem de seus procedimentos; dado que diversos economistas consideram que ajustes efetuados após o experimento são procedimentos ad hoc e cientificamente injustificados. REFERÊNCIAS BIBLIOGRÁFICAS ALEXANDER, Marcus. (2006) Rethinking justice: a foundational critique of altruism. Harvard University. http://www.tc.umn.edu/~demineq/participant%20papers/Marc%20Alexander.pdf Acessado em: 04.06.2007 ALVES, W. M.; ROSSI, P. H. (1978) Who should get what? Fair judgments of the distribution of earnings. American Journal of Sociology. Vol. 84, pp. 541-564 ARMOUR, Leslie. (1994) Is economic justice possible? International Journal of Social Economics, vol. 21, p. 32-58. Dec, 1994. http://www.emeraldinsight.com/10.1108/03068299410074809 Acessado em: 06/06/2006 ARNESON, Richard. (1999) Against Rawlsian Equality of Opportunity. Philosophical Studies, vol.93, p. 77-112, Netherlands 1999. ARNSPERGER, C.; DE VILLÉ, P. (2004) Can competition ever be fair? Challenging the standard prejudice. Ethical Theory and Moral Practice, Vol. 7, N. 4, August 2004, pp. 433-451(19) http://ideas.repec.org/s/ctl/louvir.html Acessado em: 06/06/2006 BALBINOTTO, Giácomo. (2001) As alocações livres de inveja. Informações Fipe, p. 23-28, Dezembro 2001. BARKER, Paul (org). (1996) Living as Equals. Oxford University Press, 1996. 165 págs. BARRY, Brian. (1995) Justice as Impartiality. http://www.tc.umn.edu/~demineq/participant%20papers/Marc%20Alexander.pdf http://www.emeraldinsight.com/10.1108/03068299410074809 http://ideas.repec.org/s/ctl/louvir.html BERTRAM, Christopher. (1998) Institutionalising the Difference Principle. Paper for the Nuffield Political Group, Monday, November 30, 1998 BLACKORBY, Charles; BOSSERT, Walter; DONALDSON, David. (1999) Utilitarianism and the Theory of Justice. In: Handbook of Social Choice and Welfare, Elsevier, Amsterdam, 1999. BOETTKE, Peter J. and Coyne Christopher J. (2003) The Role of the Economist in Economic Development. Global Prosperity Initiative. Working Paper 32. BOJER, Hilde. (2002) Women and the Rawlsian Social Contract. Social Justice Research. v.15, n.4, p. 393-407, Dezembro 2002. BOURGUIGNON, François; CHAKRAVARTY, Satya. (2003) The measurement of multidimensional poverty. Journal of Economic Inequality. Netherlands, v.1, p. 25-49, 2003. BROWNE, Jude; STEARS, Marc. (2005) Capabilities, resources, and systematic injustice: a case of gender inequality. Politics, Philosophy and Economics. Sage Publications, v.4, n.3, p. 355-373, 2005. ( www.sagepublications.com ) Acessado em: 06.06.2007 CAPPELEN, A. W., A. D. HOLE, E. Ø. SØRENSEN and B. TUNGODDEN (2005). The pluralism of fairness ideals: An experimental approach. Department of Economics, Norwegian School of Economics, Discussion Paper 12/05. CHOUDHURY, Masudul Alam; HOQUE, Mohammad Ziaul. (2004) Ethics and economic theory. International Journal of Social Economics. Aug 2004, Volume: 31 Issue: 8 Page: 790 - 807 CHOUDHURY, Masudul Alam. (1995) Ethics and economics: a view from ecological economics. International Journal of Social Economics. Mar 1995 Volume: 22 Issue: 3 Page: 61 - 80 CLARK, David. (2002) Development ethics: a research agenda. International Journal of Social Economics. Nov 2002 Volume: 29 Issue: 11 Page: 830 - 848 CORCHÓN, Luis; ITURBE-ORMAETXE, Inigo. (2001) A Proposal to Unify some Concepts in the Theory of Fairness. Journal of Economic Theory. v.101, p. 540-571, 2001. ( www.idealibrary.com ) Acessado em: 06.06.2007 CROSON, Rachel. (2003) Why and how to experiment: methodologies from experimental economics. 2003. (http://home.law.uiuc.edu/lrev/publications/2000s/2002/2002_4/Croson.pdf) 04.06.2007 CURTIS, R. C. (1979) Effects of knowledge of self-interest and social relationship upon the use of equity, utilitarian, and Rawlsian principles of allocation. European Journal of Social Psychology. Vol. 9, pp. 165-175 http://www.sagepublications.com/ http://www.idealibrary.com/ http://home.law.uiuc.edu/lrev/publications/2000s/2002/2002_4/Croson.pdf D’AGOSTINO, Fred. (2004) The Legacies of John Rawls. Journal of Moral Philosophy. Sage Publications, Londres, v.1.3, p. 349-365, 2004. ( www.sagepublications.com ) 06.06.2007 DAVIS, D.; HOLT, C. (1993) Experimental Economics. Princeton University Press. DICKINSON, D.; TIENFENTHALEN, J. (2002) What is fair? Experimental evidence. Southern Economic Journal, Vol. 69, No. 2 (Oct., 2002), pp. 414-428 DUHS, Alan. (1998) Five dimensions of the interdependence of philosophy and economics integrating het and the history of political philosophy. International Journal of Social Economics. Nov 1998 Volume: 25 Issue: 10 Page: 1477 - 1508 EDGREN, John. (1995) On the relevance of John Rawls’s theory of justice to welfare economics. Review of Social Economy Fall 1995 v53 n3 p332(18) EXDELL, John. (1977) Distributive Justice: Nozick on Property Rights. Ethics. Vol. 87, N. 2, jan. 1977, pp. 142-149 FALK, Armin; FEHR, Ernst; FISCHBACHER, Urs. (2000) Testing Theories of Fairness - Intentions Matter. Zurich IEER Working Paper No. 63, 2000 FELDSTEIN, Martin. (1998) Income Inequality and Poverty. NBER Working Paper Series. Cambridge, MA, outubro 1998. FELTOVICH, Nick. (2011) What’s to know about laboratory experimentation in economics? Journal of Economics Surveys, v.25, N.2, p. 371-379 FINNEGAN, Marie. (2006) The moral dimensions of neoclassical economics: a critique. http://www.emeraldinsight.com/Insight/viewContainer.do?containerType=Issue&contai nerId=18638 (06/06/2006) FLEURBAEY, Marc et al. (2002) Education, Distributive Justice, and Adverse Selection. Journal of Public Economics. Elsevier Science, v.84, p. 113-150, 2002. (www.elsevier.com/locate/econbase) 06.06.2007 FLEURBAEY, M., MANIQUET, F. (1996) Utilitarianism versus fairness in welfare economics. In: Salles, M., Weymark, J. A. (Eds.), Justice, Political Liberalism, and Utilitarianism: Themes From Harsanyi and Rawls. Cambridge University Press, Cambridge, forthcoming. FOWLER, Mark. (1980) Stability and Utopia. Ethics. Vol. 90, N.4, jul. 1980, pp. 550- 563 FREEMAN, Samuel. (2001) Illiberal Libertarians: Why Libertarianism Is Not a Liberal View. Philosophy and Public Affairs. Vol. 30, N. 2, spring 2001, pp. 105-151 FREEMAN, S. (2002) (ed.) The Cambridge Companion to Rawls. Cambridge University Press. 2002 http://www.sagepublications.com/ http://www.emeraldinsight.com/Insight/viewContainer.do?containerType=Issue&containerId=18638 http://www.emeraldinsight.com/Insight/viewContainer.do?containerType=Issue&containerId=18638 http://www.elsevier.com/locate/econbase FRIED, Barbara. (1995) Wilt Chamberlain Revisited: Nozick’s “Justice in Transfer” and the Problem of Market-Based Distribution. Philosophy and Public Affairs. Vol. 24, N. 3, summer 1995, pp. 226-245 FRIEDMAN, Milton (1953). The Methodology of Positive Economics. In: Essays in Positive Economics, Chicago, University of Chicago Press. FROLICH, N.; OPPENHEIMER, J. A.; EAVEY, C. L. (1987) Choices of Principles of Distributive Justice in Experimental Groups. American Journal of Political Science. Vol. 31, N. 3, Agosto 1987, pp. 606-636 FROLICH, N.; OPPENHEIMER, J. A. (1990) Choosing Justice in Experimental Democracies with Production. American Political Science Review. Vol. 84, N. 2, June 1990 GAJDOS, T.; KANDIL, F. (2005) The ignorant observer. (http://ideas.repec.org/p/mse/wpsorb/v06041.html) Acessado em: 06.06.2007 GOULET, Denis. (1995) Development Ethics: A Guide to Theory and Practice. London: Zed Books. GOUNDER, Rukmani. (2005) Neglected dimensions of development: inequality, conflict and aid. International Journal of Social Economics. Jan 2005 Volume: 32 Issue: 1/2 Page: 60 - 76 GRENHOLM, Carl-Henric. (2004) Justice, Ethics and Economics. Studies in Christian Ethics. The continuum publishing group, 2004. GUALA, F. (2005) The methodology of experimental economics. New York: Cambridge University Press. 2005 HARDIN, R. (2001) Rational choice political philosophy. For presentation at the University of Maryland, 4 de Maio, 2001. (http://www.bsos.umd.edu/umccc/hardin.pdf) 06.06.2007 HARMON, Jonathan. (2004) Introducing John Rawls. Philosophy and Social Criticism. Sage Publications, Londres, v.30, n.5-6, p. 643-663, 2004. ( www.sagepublications.com ) 06.06.2007 HARSANYI, John C. (1955) Cardinal welfare, individualistic ethics and interpersonal comparisons of utility. The Journal of Political Economy, Vol. 63, No. 4 (Aug., 1955), pp. 309-321 HARSANYI, J. C. (1975) Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’s Theory. The American Political Science Review. Vol. 69 HARRISON, G. W.; LIST, J. A. (2004) Field experiments. Journal of Economic Literature 42: 1009-1055 http://ideas.repec.org/p/mse/wpsorb/v06041.html http://www.bsos.umd.edu/umccc/hardin.pdf http://www.sagepublications.com/ HASLETT, D. W. (1986) Is Inheritance Justified? Philosophy and Public Affairs. Vol. 15, N. 2, spring 1986, pp. 122-155 HAUSKEN, Kjell. (1996) Ethics and efficiency in organizations. International Journal of Social Economics. Sep 1996 Volume: 23 Issue: 9 Page: 15 - 40 HERNE, Kaisa; SUOJANEN, Maria. (2004) The Role of Information in Choices over Income Distributions. Journal of Conflict Resolution. Sage Publications, v.48, n.2, p. 173-193, abril 2004. ( www.sagepublications.com ) 06.06.2007 HERNE, K.; MARD, T. (2008) Three versions of impartiality: An experimental investigation. Working Paper. University of Turku, Department of Political Science, Turku, Finland. 2008 (http://congress.utu.fi/epcs2006/docs/A5_herne.doc) 06.06.2007 http://www.soc.utu.fi/sivustot/pcrc/publications/workingpapers/ 22.06.2008 HOBBES, Thomas. (1983) Os Pensadores (Leviatã). 3 ed., S. Paulo: Abril Cultural, 1983. HOWE, Roger; ROEMER, John. (1981) Rawlsian Justice as the Core of a Game. The American Economic Review. v.71, n.5, p. 880-895, dezembro 1981. KANGAS, Olli. (2000) Distributive Justice and Social Policy: some reflections on Rawls and income distribution. Social Policy and Administration. Malden/MA, v.34, n.5, p. 510-528, dezembro 2000. KERSTENETZKY, C. L. (2002) Por que se importar com a desigualdade. Dados - Revista de Ciências Sociais, v. 45, n. 4, 2002. KILCHRIST, Erica; BLOCK, Walter. (2006) Distributive Justice. International Journal of Social Economics. 2006 Volume: 33 Issue: 2 Page: 102 – 110 KLASEN, Stephan. (2006) The Efficiency of Equity. Discussion Papers n.145: Ibero- America Institute for Economic Research. June, 2006 KOLM, Serge-Christophe. (1998) Chance and Justice: Social policies and the Harsanyi-Vickrey-Rawls problem. European Economic Review. Elsevier Science, v.42, p. 1393-1416, 1998. KOLM, Serge-Christophe. (2000) Teorias Modernas da Justiça. SP: Martins Fontes, 2000. 625 págs. KONOW, James. (2001) Fair and square: the four sides of distributive justice. Journal of Economic Behavior and Organization. Elsevier Science, v.46, p. 137-164, 2001. (www.elsevier.com/locate/econbase) 06.06.2007 KREPS, D. M. (1990) A Course in Microeconomic Theory, Princeton: Princeton University Press. http://www.sagepublications.com/ http://congress.utu.fi/epcs2006/docs/A5_herne.doc http://www.soc.utu.fi/sivustot/pcrc/publications/workingpapers/ http://www.elsevier.com/locate/econbase KRITIKOS, Alexander; FRIEDEL, Bolle. (2001) Distributional concerns: equity- or efficiency-oriented? Economics Letters. Elsevier Science, v.73, p. 333-338, 2001. (www.elsevier.com/locate/econbase) 06.06.2007 LOCKE, John. (2002) Segundo tratado sobre o governo. S. Paulo: Martin Claret, 2002. LUTZ, Mark. (2006) Social economics, justice and the common good. http://www.emeraldinsight.com/0306-8293.htm (06/06/2006) MAGUAIN, D. (2000) Les Théories de la justice distributive post-rawlsiennes: une revue de la literatures. THEMA Working Papers, 2000-54, (THéorie Economique, Modélisation et Applications), Université de Cergy-Pontoise. 2000. MAILLY, Pierre. (2002) Rawls from a different angle: on the justice that makes (distributive) justice possible. Gnosis. V.6, n.1, setembro 2002. MAS-COLELL, Andreu; WHINSTON, Michael; GREEN, Jerry. (1995) Microeconomic Theory. New York: Oxford University Press, 1995. 981 págs. MICHELBACH, Philip et al. (2003) Doing Rawls Justice: an experimental study of income distribution norms. American Journal of Political Science. v.47, n.3, p. 523- 539, julho 2003. MITCHELL, Gregory; TETLOCK, Philip E. (2006) Experimental Political Philosophy: justice judgments in the hypothetical society paradigm. University of Virginia Legal Working Paper Series. Working Paper 52, Outubro, 2006. (http://law.bepress.com/uvalwps/uva_publiclaw/art52/) 04.06.2007 MITCHELL, George; TETLOCK, Philip E.; MELLERS, Barbara A.; ORDOÑEZ, Lisa. (1993) Judgments of Social Justice: Compromises Between Equality and Efficiency. Journal of Personality and Social Psychology. 65 (4): 629-639. MUSGRAVE, R. A. (1974) Maximin, Uncertainty and the Leisure Trade-off. Quaterly Journal of Economics. Vol. 88, No. 4 (Nov., 1974), pp. 625-632 NOZICK, Robert. (1974) Anarchy, State and Utopia. Blackwell, Oxford, 1974 NOZICK, Robert. (1978) Abstracts of Symposium Paper: Knowledge and Skepticism. Nôus. Vol. 12, N. 1, Mar. 1978, p. 53 NOZICK, Robert. (1991) Anarquia, Estado e Utopia. Rio de Janeiro: Jorge Zahar, 1991 NOZICK, R. (1994) Invisible-Hand Explanations. The American Economic Review – Papers and Proceedings of the Hundred and Sixth Annual Meeting of the American Economic Association. Vol. 84, N. 2, may 1994, pp. 314-318 NOZICK, R. (1997) Why do Intellectuals Oppose Capitalism? Socratic Puzzles. Harvard University Press, 1997 http://www.elsevier.com/locate/econbase http://www.emeraldinsight.com/0306-8293.htm http://law.bepress.com/uvalwps/uva_publiclaw/art52/ NUSSBAUM, Martha. (2004) Beyond the Social Contract: capabilities and global justice. Oxford Development Studies. Carfaz Publishing, v.32, n.1, p. 3-18, março 2004. NZITAT, Henri Patrice. (2001) From Equality to Inequality: the Diamond-Sen criticism of Harsanyi’s criterion of social justice. Pacific Economic Review. Malden/MA, v.6, n.2, p. 239-253, 2001. OLIVEIRA, N. (2003) Rawls. Rio de Janeiro: Jorge Zahar Editora, 2003. PARTRIDGE, Mark. (2005) Does income distribution affect U.S. state economic growth? Journal of Regional Science. Malden, MA, v.45, n.2, p. 363-394, 2005. PEFFER, R. (1998) What is to be distributed? University of San Diego, 1998. www.bu.edu/wcp/papers/poli/polipeff.htm Acessado em: 04.07.2005 PERAGINE, Vito. (2004) Ranking Income Distributions according to Equality of Opportunity. Journal of Economic Inequality. Netherlands: Kluwer Academic publishers, v.2, p. 11-30, 2004. PERRY, Stephen. (1997) Libertarianism, Entitlement, and Responsibility. Philosophy and Public Affairs. Vol. 26, N. 4, autumn 1997, pp. 351-396 PHELAN, C. (2002) Inequality and Fairness. In: Federal Reserve Bank of Minneapolis Quarterly Review. Vol. 26, No. 2, Spring 2002, pp. 2–11 PINDYCK, R; RUBINFELD, D. (2002) Microeconomia. SP: Prentice Hall, 5ªed., 2002. PLATÃO. (2001) A República. SP: Edipro, 2001. 419 págs. POPPER, Karl. (1961) Lógica das Ciências Sociais. Brasília: Ed. Universidade de Brasília, 101 pgs. POPPER, Karl. (1972) A Lógica da Pesquisa Científica. São Paulo: Cultrix, 566 pgs. POPPER, Karl. (1981) O Racionalismo Crítico na Política. Brasília: Ed. Universidade de Brasília, 74 pgs. POPPER, Karl. (1999) Conhecimento Objetivo. Belo Horizonte: Ed. Itatiaia, 394 pgs. ROBBINS, Lionel. (1935) An Essay on the Nature and Significance of Economics Science. Macmillan, segunda edição, Londres, 1935. ROTH, Alvin. (1986) Laboratory Experimentation in Economics. Economics and Philosophy. N. 2, pp. 245-273. ROTH, Alvin. (1988) Laboratory Experimentation in Economics: A Methodological Overview. Economic Journal. N. 98, pp. 974-1031. http://www.bu.edu/wcp/papers/poli/polipeff.htm ROTH, Alvin. (1995) Introduction to Experimental Economics. In: J. H. Kagel e A. E. Roth (eds) The Handbook of Experimental Economics. Princeton: Princeton University Press, pp. 3-109. RUTSTROM, Elisabet; WILLIAMS, Melonie. (2000) Entitlements and Fairness: an experimental study of distributive preferences. Journal of Economic Behavior and Organization. v.43, p. 75-89, 2000. ( www.elsevier.com/locate/econbase ) 06.06.2007 SHOPE, Robert K. (1984) Cognitive Abilities, Conditionals, and Knowledge: A Response to Nozick. The Journal of Philosophy. Vol. 81, N. 1, Jan. 1984, pp. 29-48 SIMON, Herbert A. (1991) Bounded Rationality and Organizational Learning. Special Issue: Organizational Learning: Papers in Honor of (and by) James G. Organization Science, Vol. 2, No. 1, March (1991), pp. 125-134. SMITH, Vernon. Method in Experiment: rhetoric and reality. Experimental Economics. 5 (2): 91-110, 2002b. STARMER, Chris. (1999) Experimental Economics: hard science or wasteful tinkering? The Economic Journal 109. February, F5-F15, 1999 TRAUB, S.; SEIDL, C.; SCHMIDT, U.; LEVATI V. (2003) Friedman, Harsanyi, Rawls, Boulding – or somebody else? An experimental investigation of distributive justice. Discussion Papers on Strategic Interaction. 2003-19, Max Planck Institute of Economics, Strategic Interaction Group. 2003 (http://de.scientificcommons.org/20132124) 06.06.2007 THIELEMANN, Ulrich. (2006) A brief theory of the Market: ethically focused. International Journal of Social Economics 27,1. www.emerald-library.com (06/06/2006) THOMAS, D. A. Lloyd. (1980) Liberalism and Utilitarianism. Ethics. Vol. 90, N. 3, april 1980, pp. 319-334 TUNGODDEN, Bertil. (1999) The Distribution problem and Rawlsian Reasoning. Social Choice and Welfare. Springer-Verlag, v.16, p. 599-614, 1999. TUNGODDEN, Bertil; VALLENTYNE, Peter. (2006) Who are the least advantaged? Forthcoming in Egalitarianism: New Essays on the Nature and Value of Equality, edited by Nils Holtug and Kasper Lippert-Rasmussen (Oxford University Press, 2006). VILLAR, Antonio. (2001) The Welfare Evaluation of Primary Goods: a Suggestion. Economic Series 98, Institute for Advanced Studies. WATERS, Hugh. (2000) Measuring Equity in Access to Health Care. Social Science and Medicine. Elsevier Science, v.51, p. 599-612, 2000. ( www.elsevier.com/locate/socscimed ) 06.06.2007 http://www.elsevier.com/locate/econbase http://de.scientificcommons.org/20132124 http://www.emerald-library.com/ http://www.elsevier.com/locate/socscimed WHITE, Mark. (2004) Can Homo Economicus follow Kant’s Categorical Imperative? Journal of Socio-Economics. v.33, p. 89-106, 2004. (www.elsevier.com/locate/econbase) 06.06.2007 http://www.elsevier.com/locate/econbase 
work_tluvb63mzbemdbna6j3bzzxviy	----	Social bodies and social justice This is a repository copy of Social bodies and social justice. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/140671/ Version: Accepted Version Article: Lewis, S and Thomson, M orcid.org/0000-0002-1570-2481 (2019) Social bodies and social justice. International Journal of Law in Context, 15 (3). pp. 344-361. ISSN 1744-5523 https://doi.org/10.1017/S1744552319000053 © Cambridge University Press 2019. This article has been published in a revised form in International Journal of Law in Context. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Page | 1 Social Bodies & Social Justice Sam Lewis and Michael Thomson* Abstract: This article identifies, and engages with, the social bodies emerging by virtue of the biosocial turn in the life sciences and the contemporaneous advent of embodied approaches to social justice. Across diverse domains, then, bodies are increasingly understood as shaped by and dependent upon their environments. To explore this potentially important and productive Iﾗﾐ┗WヴｪWﾐIWが ┘W Hヴｷﾐｪ M;ヴデｴ; FｷﾐWﾏ;ﾐげゲ ┗┌ﾉﾐWヴ;Hｷﾉｷデ┞ デｴWﾗヴ┞ ｷﾐデﾗ Iﾗﾐ┗Wヴゲ;デｷﾗﾐ ┘ｷデｴ developmental neuroscience and environmental epigenetics. We foreground significant intersecting concerns and argue that vulnerability theory is strengthened by engaging with a richer understanding of embodiment that attends to these new biosocial knowledge claims. This engagement can enhance the political traction of this and other embodied theories. These can, in turn, provide important alternatives to the neoliberal lens through which neuroscience and epigenetics have hitherto been translated into policy and practice. Exploring this new terrain, we nevertheless acknowledge the limitations and dangers posed by current biopolitical governance practices. Introduction The relationship between our bodily place in the world and social justice has long preoccupied feminist, critical race, and disability theorists.1 It has also provoked and shaped particular fields of study, such as epidemiology and public health.2 More recently, and the focus of this article, this relationship has become a more pervasive concern across the humanities, social and life sciences. In the humanities and social sciences, for example, the body features prominently in an increasing number of approaches to social justice. From the discourses of precariousness (Butler 2005) and vulnerability (Fineman 2010, 2014, 2015, 2017) to the *The authors would like to thank Joshua Warburton for research assistance and Catherine Cruse-Drew, CｴヴｷゲデﾗヮｴWヴ DｷWデ┣が M;ヴデｴ; FｷﾐWﾏ;ﾐが JWﾐﾐｷaWヴ HWﾐSヴ┞が Iゲ;HWﾉ K;ヴヮｷﾐが K;ヴWﾐ OげCﾗﾐﾐWﾉﾉが Aﾐｷデ; “デ┌ｴﾏﾆｴWが MｷデIｴWﾉﾉ Tヴ;┗ｷゲが ;ﾐS デｴW ﾃﾗ┌ヴﾐ;ﾉげゲ ヴW┗ｷW┘Wヴゲ aﾗヴ デｴWｷヴ ｪWnerous and thoughtful feedback on earlier drafts of this article. WW ┘ﾗ┌ﾉS ;ﾉゲﾗ ﾉｷﾆW デﾗ デｴ;ﾐﾆ ヮ;ヴデｷIｷヮ;ﾐデゲ ;デ デｴW けV┌ﾉﾐWヴ;Hｷﾉｷデ┞ ;ﾐS “ﾗIｷ;ﾉ J┌ゲデｷIWげ ┘ﾗヴﾆゲｴﾗヮ ｴWﾉS ;デ デｴW “Iｴﾗﾗﾉ ﾗa Law, University of Leeds, 17-18 June 2016. 1 While feminist and critical race scholars (for example, Donna Haraway (2004) and Dorothy Roberts (2010)) have done much to explore this terrain, it is perhaps disability scholars who have most acutely illustrated the social justice implications of the relationship between the body and the social context it is conceived within and moves through. This is reflected in the social model of disability which has shaped both disability studies and international civil society discourse (see, Oliver (1981, 1983, 2013)). 2 The social justice concerns in these disciplines are most apparent in the work since the early 1980s that has focused on the social determinants of health (for example, Marmott (2005) and Wilkinson and Pickett (2011)). Page | 2 capabilities approach (Nussbaum 2011, Sen 1980), social flesh (Beasley and Bacchi 2007), and depletion (Goldblatt and Rai, 2017) the body has been positioned as a site for understanding and responding to our common humanity. Within such models the embedded fleshiness of the human condition is foregrounded with the hope of leveraging a more responsive state (Fineman, 2010); one that recognises not only common rights and state obligations but also our specificity and ethical individualism (Sen, 1980). As these approaches to social justice have gained ground in the humanities and social sciences, there has been a contemporaneous turn to the social in the life sciences. Here, what were once imagined as immutable facts of existence - hardwired biological codes, systems, and processes - have lost their indifference to the social world. In particular, bodies have become porous to and shaped by environments of abuse and disadvantage. Neuroscience and epigenetics have been at the forefront of this profound shift in scientific thinking. As Maurizio Meloni writes, our ┌ﾐSWヴゲデ;ﾐSｷﾐｪ ﾗa デｴW Hヴ;ｷﾐ ｴ;ゲ HWWﾐ ヴWｷﾏ;ｪｷﾐWS aヴﾗﾏ ;ﾐ けｷゲﾗﾉ;デWS S;デ; ヮヴﾗIWゲゲﾗヴ デﾗ デｴW ┌ﾉデヴ;ゲﾗIｷ;ﾉ ;ﾐS ﾏ┌ﾉデｷヮﾉ┞ IﾗﾐﾐWIデWS ゲﾗIｷ;ﾉ Hヴ;ｷﾐげ (Meloni, 2014). At the same time, epigenetics に the investigation of changes in gene expression that are not driven by alterations to the underlying DNA sequence - has delivered us to a post-genetic world ┘ｴWヴW ｪWﾐWゲ ;ヴW ﾐﾗ ﾉﾗﾐｪWヴ け;Hゲﾗﾉ┌デWﾉ┞ ゲﾗ┗WヴWｷｪﾐげ H┌デ ;ヴW けIﾗﾐデW┝デ┌;ﾉﾉ┞ SWヮWﾐSWﾐデ ふ;ﾐS Wﾉ┌ゲｷ┗Wぶ WﾐデｷデｷWゲ デｴ;デ IﾗﾗヮWヴ;デW W┝デWﾐゲｷ┗Wﾉ┞ ┘ｷデｴ ; ﾉ;ヴｪW ┗;ヴｷWデ┞ ﾗa ヮﾗゲデｪWﾐﾗﾏｷIげ environmental and social factors (Meloni 2014, 601). Importantly, both epigenetics and neuroscience have been identified as offering new ways to understand and address inequalities and disadvantage (Loi, Del Savio and Stupka 2013, Hair et al 2015). Longstanding interest in the relationship between the body and the social is therefore being articulated in new ways at multiple disciplinary locations. Across these contexts social bodies are emerging that may be implicated in overlapping social justice concerns. Discussion across these disciplines has the potential to strengthen intersecting agendas that seek to understand and address inequalities that become embedded in, or understood through, the body. In this article we argue that bringing the social bodies invoked within embodied approaches to social justice ;ﾐS デｴW ﾐW┘ けゲﾗIｷ;ﾉ HｷﾗﾉﾗｪｷWゲげ ふPｷIﾆWヴゲｪｷﾉﾉが ヲヰヱヴぶ into conversation has the potential to invest social justice projects with new urgency, and greater political purchase, as we understand in new ways how opportunities and life chances may be limited by adversity and Page | 3 deprivation. This recognises the political and legal tヴ;Iデｷﾗﾐ ﾗa デｴW けｴ;ヴSげ ゲIｷWﾐIWゲ ;ﾐS デｴ┌ゲ デｴW potential leverage afforded by デｴｷゲ けﾐW┘ ﾏﾗﾉWcular landsc;ヮWげ ふPｷIﾆWヴゲｪｷﾉﾉ Wデ ;ﾉが ヲヰヱンぶく To develop this argument we focus on M;ヴデｴ; FｷﾐWﾏ;ﾐげゲ ヴWゲヮﾗﾐゲW デﾗ ┗┌ﾉﾐWヴ;Hｷﾉｷデ┞ ;ゲ けthe ヮヴｷﾏ;ﾉ ｴ┌ﾏ;ﾐ IﾗﾐSｷデｷﾗﾐげ (2017, 142). FｷﾐWﾏ;ﾐげゲ vulnerability theory is built on the twin pillars of our bodily place in the world and our embeddedness in social and institutional relationships. These foundations mirror the analytical focus of the new social biologies and FｷﾐWﾏ;ﾐげゲ attention to institutional structures makes it particularly relevant for the analysis and development of law and policy. Arguing for greater attention to what it means to talk of embodiment at this point in the development of the life sciences, we illustrate how these knowledge claims strengthen vulnerability theoryげゲ significant potential as an analytical framework and deliberative space for the formation of socially just law and policy. Further, while developments in the life sciences have quickly become associated with stigmatising and punitive social policies, we posit vulnerability theory as a means of wresting these scientific models from neoliberal frameworks, enabling the science to be used to scaffold more progressive agendas. We contend that through this, vulnerability theory helps to reveal and Iｴ;ﾉﾉWﾐｪW デｴW ﾐ;ヴヴﾗ┘ IﾗﾐIWヮデｷﾗﾐ ﾗa デｴW けゲﾗIｷ;ﾉげ デｴ;デ ｷﾐｴ;Hｷデゲ に and limits - contemporary science and policy. The article begins by articulating FｷﾐWﾏ;ﾐげゲ theory of universal vulnerability. We then set out the fundamental propositions of neuroscience and epigenetics, focusing on how intergenerational processes have become an important locus for these two fields and the point at which they meet. Having acknowledged the social bodies that populate these projects, we address how scientific claims from these fields have been mobilised in policy. The final section returns to vulnerability theory and demonstrates how the けﾐW┘ HｷﾗゲﾗIｷ;ﾉ デWヴヴ;ｷﾐげ ふMWﾉﾗﾐｷ ヲヰヱヴが ヵΓヵぶ may provide further weight to a vulnerability analysis of government interventions and help to formulate alternative policy that is potentially both more effective and just. Vulnerability theory The last two decades have seen the emergence of a new humanist discourse that centres embodiment - entwining ethics and ontology - to challenge and re-align existing ethical and Page | 4 political models of responsibility (Murphy 2011, 577). While our argument has relevance across this rich and diverse field of embodied approaches, here we focus on the analytical framework that Martha Fineman has built upon the ontological fact of our embodied vulnerability. In this sWIデｷﾗﾐ ┘W ゲWデ ﾗ┌デ FｷﾐWﾏ;ﾐげゲ analytical proposition which deploys embodied vulnerability to articulate a けﾏﾗヴW ｷﾐIﾉ┌ゲｷ┗W ;ﾐS ヴW;ﾉｷゲデｷI ﾉWｪ;ﾉ ゲ┌HﾃWIデ に one that makes it clear that injury and injustice does inevitably arise when the state remains ┌ﾐヴWゲヮﾗﾐゲｷ┗W デﾗ ｴ┌ﾏ;ﾐ ┗┌ﾉﾐWヴ;Hｷﾉｷデ┞ ;ﾐS SWヮWﾐSWﾐI┞げ ふヲヰヱΑが ヱヴΓぶく For Fineman, embodied vulnerability is the defining human condition: it is part of our shared humanity that we all age and may be struck down by illness and natural or man-made disaster. While embodied vulnerability is universal it is also particular, reflecting our different forms of embodiment and our positioning within webs of economic and institutional relationships. Thus Fineman brings together our embodied vulnerability and our social embeddedness to argue that vulnerability is けboth universal and particular; it is experienced uniquely by each of usげ (2010, 269). FｷﾐWﾏ;ﾐげゲ approach is therefore distinct from the stigmatising vulnerability of social policy, which characterises individuals and groups who, by virtue of their circumstances, are more susceptible to harm than others. Fineman regards the ascription of ┗┌ﾉﾐWヴ;Hｷﾉｷデ┞ デﾗ ゲﾗﾏW ヮWﾗヮﾉW ;ﾐS ﾐﾗデ ﾗデｴWヴゲ ;ゲ けﾏｷゲﾉW;Sｷﾐｪげ ;ﾐS けｷﾐ;II┌ヴ;デWげく It is also pernicious, as grouping ｷﾐSｷ┗ｷS┌;ﾉゲ ｷﾐデﾗ け┗┌ﾉﾐWヴ;HﾉW ヮﾗヮ┌ﾉ;デｷﾗﾐゲげ ;IIﾗヴSｷﾐｪ デﾗ ; ゲﾏ;ﾉﾉ ﾐ┌ﾏHWヴ of shared characteristics may overstate their likeness while understating their likeness to members of the majority population, precipitating their stigmatization (Fineman 2013: 16). Fヴﾗﾏ デｴｷゲ けSWゲIヴｷヮデｷ┗W ﾗヴ WﾏヮｷヴｷI;ﾉげ ゲデ;ヴデｷﾐｪ ヮﾗｷﾐデが develops a theoretical framework for deliberating けthe just allocation of responsibility for individual and societal wellbeingげ (2017, 141). The universal vulnerable subject who sits at the heart of the theory is an alternative to the unencumbered liberal subject of contemporary law and policyぎ け;ﾐ ｷﾉﾉ┌ゲｷﾗﾐ ﾗa ｷﾐ┗┌ﾉﾐWヴ;Hｷﾉｷデ┞ ;ﾐS ｷﾐSWヮWﾐSWﾐIW ﾏ;SW ヮﾗゲゲｷHﾉW H┞ ;ﾐ ┌ﾐWケ┌;ﾉ SｷゲデヴｷH┌デｷﾗﾐ ﾗa ヴWゲﾗ┌ヴIWゲげ (Karpin 2018, 1118). Acknowledging universal vulnerability - and the universal vulnerable subject it implies に the focus becomes resilience and the duty of the state is to provide us with the assets or tools to be resilient when our vulnerability is made manifest. This political and ethical project can therefore be understood as one that aims to secure a more responsive state (Fineman 2010); one obligated to address the differences in resilience that differentials in socio-economic, educational, environmental and other factors can create. Page | 5 For Fineman, the state is けthe legitimate governing entity and is tasked with a responsibility to establish and monitor social institutions and relationships that facilitate the acquisition of ｷﾐSｷ┗ｷS┌;ﾉ ;ﾐS ゲﾗIｷ;ﾉ ヴWゲｷﾉｷWﾐIWげ ふヲヰヱΑが ヱンヴぶく This is essential as our position within this IﾗﾏヮﾉW┝ ﾐWデ┘ﾗヴﾆ ﾗa ヴWﾉ;デｷﾗﾐゲｴｷヮゲ けヮヴﾗaﾗ┌ﾐSﾉ┞ ;aaWIデ ﾗ┌ヴ SWゲデｷﾐｷWゲ ;ﾐS aﾗヴデ┌ﾐWゲ, structuring ｷﾐSｷ┗ｷS┌;ﾉ ﾗヮデｷﾗﾐゲ ;ﾐS IヴW;デｷﾐｪ ﾗヴ ｷﾏヮWSｷﾐｪ ﾗヮヮﾗヴデ┌ﾐｷデｷWゲげ ふヲヰヱΑが ヱヴヵぶく For Fineman then, a state けis responsive when it acts to monitor and adjust institutions and relationships when デｴW┞ Sﾗ ﾐﾗデ a┌ﾐIデｷﾗﾐ ｷﾐ ; ﾃ┌ゲデ ﾏ;ﾐﾐWヴげ (Fineman 2017, 4). We return to the question of an appropriately responsive state in the final section of this article. O┌ヴ けWﾏHﾗSｷWS ;ﾐS WﾏHWSSWSげ ふFｷﾐWﾏ;ﾐ ヲヰヱヵが ヲヰΓヱぶ ヮﾉ;IW ｷﾐ デｴW ┘ﾗヴﾉS デｴWヴWaﾗヴW ヮヴﾗ┗ｷSWゲ the foundations for this humanist ethic (Murphy 2011, 578). In this, as we shall articulate, there are clear similarities with the preoccupations of the new social biologies as environment shapes health outcomes, resilience, and opportunities. For Fineman, however, embodied vulnerability is something of a term of art, a けヮヴovocation to express an alternative way of ゲデヴ┌Iデ┌ヴｷﾐｪ ﾉ;┘げ ふK;ヴヮｷﾐ ヲヰヱΒが ヱヱヲヰぶく Her primary concern is our embeddedness; that is, our place in relation to the informal and formal structures and institutions of social life that enable ┌ゲ デﾗ HW ヴWゲｷﾉｷWﾐデぎ けA vulnerability approach is primarily focused on exploring the differences and dependencies that arise from the fact that we are embedded within society and its ｷﾐゲデｷデ┌デｷﾗﾐゲげ ふヲヰヱヴが ンヱΒぶ and ensuring that the state is responsive to those differences. Our work here is not directed at detracデｷﾐｪ aヴﾗﾏ FｷﾐWﾏ;ﾐげゲ デ┘ｷﾐ ヮｷﾉﾉ;ヴs ﾗa ﾗ┌ヴ けWﾏHﾗSｷWS ;ﾐS WﾏHWSSWSげ W┝ヮWヴｷWﾐIW ふヲヰヱヵが ヲΓヱ). Rather, our project is to return to the foundational concern with embodiment, recuperating it as something more than a means to get to the structural preoccupations of the theory. In this we seek recognition of embodied differences as more than just the けHﾗSｷﾉ┞ SｷaaWヴWﾐIWゲ デｴ;デ ;ヴW ﾏ;ﾐｷaWゲデ ;Iヴﾗゲゲ ┗;ヴｷﾗ┌ゲ ﾏWﾏHWヴゲ ﾗa ゲﾗIｷWデ┞ ;デ ;ﾐ┞ ｪｷ┗Wﾐ デｷﾏWげ and variations due to the inevitable corporeal changes that occur as we けﾏ;デ┌ヴW ;ﾐS ｪヴﾗ┘が ;ゲ ┘Wﾉﾉ ;ゲ ;ｪW ;ﾐS SWIﾉｷﾐWげ ふヲヰヱΑぎ ヱヴヴぶ, which Fineman terms the けｴﾗヴｷ┣ﾗﾐデ;ﾉ ;ﾐS ┗WヴデｷI;ﾉ SｷﾏWﾐゲｷﾗﾐゲ ﾗa SｷaaWヴWﾐIWげ ふヱヴΒぶく Here we seek a rebalancing, an understanding that our embodiment and our social embeddedness are intertwined in ways that potentially impacts intergenerationally. We demonstrate that vulnerability theorists need to take embodiment seriously and engage with emergent evidence of the somatic effects of social and environmental embeddedness. Page | 6 Our argument, then, is that as FｷﾐWﾏ;ﾐげゲ デｴWﾗヴ┞ ﾗa universal vulnerability is directed at securing a more responsive state に SWaｷﾐｷﾐｪ け; ヴﾗH┌ゲデ ゲWﾐゲW ﾗa ゲデ;デW ヴWゲヮﾗﾐゲｷHｷﾉｷデ┞ aﾗヴ ゲﾗIｷ;ﾉ ｷﾐゲデｷデ┌デｷﾗﾐゲ ;ﾐS ヴWﾉ;デｷﾗﾐゲｴｷヮゲげ ふヲヰヱΑが ヱヴンぶ - the life sciences are articulating a body that may very directly animate this project. As Jörg Niewöhner observes: It is almost ironic that the deeper biologists delve into the human body and the more fine-grained and molecularised their analysis becomes, the less they are able to ignore the many ties that link the individual body and its molecules to the spatio-temporal IﾗﾐデW┝デゲ ┘ｷデｴｷﾐ ┘ｴｷIｴ ｷデ S┘Wﾉﾉゲく TｴW WﾏWヴｪｷﾐｪ WﾏHWSSWS HﾗS┞ ｷゲ ; HﾗS┞ ぐ ﾗヮWﾐ デﾗ デｴW world (2011, 290). The new social bodies of the life sciences may therefore help to compel the state obligations that vulnerability theory mandates as we understand the body as porous to the social world in which it is embedded. This porosity can biologically entrench inequalities and disadvantage, limiting our resilience and that of future generations. Thus we wish to marshal this very overlap: fusing the recognition of our bodily place in the world that underpins embodied approaches to social justice and the knowledge claims of the new social biologies. Both attend デﾗ デｴW ゲﾗIｷ;ﾉ ﾃ┌ゲデｷIW ｷﾏヮﾉｷI;デｷﾗﾐゲ ﾗa ﾗ┌ヴ けWﾏHﾗSｷWS ;ﾐS socially emHWSSWSげ W┝ヮWヴｷWﾐIW (Fineman 2017, 149). Having introduced vulnerability theory, the next section outlines the social bodies emerging within the biosocial landscape, focusing on developmental neuroscience and environmental epigenetics and, in particular, where these overlap with neuro-epigenetics. We approach the life sciences acknowledging that while bodies are けproduced through networks that fold and cut across science and other fieldsげ (Roberts, 2002, 21) biomedicine is a particularly privileged site at which bodies are constituted and experienced. Further, as Bruno Latour argues (1987), propositions are not simply claims or statements: they also articulate the body into new sets of arrangements or relations. These can be very concrete and structural arrangements, for example with the institutions of the state as illustrated below. But they also have more diffuse and potentially profound effects. Biological facts are けtechnophenomenaげ that constitute one part of our individual and shared reality but also shape けｴﾗ┘ デｴW ゲWﾉa ｷゲ ﾏ;SW さヴW;ﾉざげ (Lock and Nguyen, 2010, 109, 284). In the context of neuroscience we see this in the emergence of new brain-H;ゲWS ｷSWﾐデｷデｷWゲ ふけIWヴWHヴ;ﾉ ゲ┌HﾃWIデゲげ (Ortega 2009)) within medicine and policy, as well as in the support groups that embrace neuroscientific language to better articulate and Page | 7 legitimise understandings and experiences ﾗa Sｷ;ｪﾐﾗゲｷゲ ふけﾐW┌ヴﾗIｴWﾏｷI;ﾉ ゲWﾉ┗Wゲげ (Rose 2005)). At the same time, claims from neuroscience and epigenetics are also easily embedded in the responsibilising discourses of neo-liberalism. Indeed, plasticity and the (unrealistic) belief that sufficient work on the self can improve the epigenome to the benefit of current and future generations, can deflect attention from profound structural inequalities, resonating with L;┌ヴWﾐ BWヴﾉ;ﾐデげゲ けIヴ┌Wﾉ ﾗヮデｷﾏｷゲﾏげ ふヲヰヱヱぶく Further, plasticity and the focus on transforming the ゲWﾉa ヴWｷﾐaﾗヴIWゲ デｴW W┝ｷゲデｷﾐｪ ヮﾗﾉｷデｷI;ﾉ ﾗヴSWヴ ;ﾐS ﾏ;ﾆWゲ けﾐﾗヴﾏ;デｷ┗W ヮ;ヴデｷI┌ﾉ;ヴ ┘;┞ゲ ﾗa HWｷﾐｪげ (Gillies et al., 2016, 233), particularly around obligations to optimise the self and parenting. While our engagement with these rich understandings of embodiment is necessarily limited here, the naturalisation of contextual and contingent understandings of the body makes engagement with socio-political embodiment all the more pressing (Fox and Thomson 2017; Dietz 2018). The life-sciences & the new social body In the twentieth and twenty-first centuries, neuroscience and epigenetics have been part of ;ﾐ けWヮｷゲデWﾏｷI デヴ;ﾐゲaﾗヴﾏ;デｷﾗﾐ ｷﾐ デｴW ﾉｷaW-ゲIｷWﾐIWゲげ ふMWﾉﾗﾐｷ ヲヰヱヴが ヵΓΑぶ ┘ｴWヴW デhere is growing acceptance that humans are shaped by both biological and social forces. In these fields, and elsewhere, we see デｴW けﾏﾗﾉWI┌ﾉ;ヴｷゲ;デｷﾗﾐ ﾗa Hｷﾗｪヴ;ヮｴ┞げ ふNｷW┘öhner 2011), where early disadvantage can shape the brainげs early development and in our postgenomic world the けゲﾗIｷ;ﾉ ﾉｷaW ﾗa ;ﾐ ﾗヴｪ;ﾐｷゲﾏ IﾗﾏWゲ デﾗ HW ｷﾏヮﾉｷI;デWS ｷﾐ ヮｴWﾐﾗデ┞ヮｷI W┝ヮressionげ (Pickersgill 2014, 481). In other words, the socially unjust distribution of resources, precarity and resilience can have immediate somatic affects that are then (potentially) experienced for generations. In this section we introduce neuroscience and epigenetics. However, the aim is not to provide an account of these fields. Both terms encompass a wide range of specialisms and sub- specialisms at different stages of emergence that are often contested and sometimes in conflict. Rather, the aim is to introduce foundational propositions, acknowledging the limits of current knowledge, before proceeding to discuss the translation of neuroscience into public policy. Whilst we appreciate that all knowledge production is social, we recognise that some knowledge is more social than others, and are acutely aware of the almost endemic けHヴ;ｷﾐ ﾗ┗Wヴ-Iﾉ;ｷﾏ ゲ┞ﾐSヴﾗﾏWげ ふMﾗヴゲW ヲヰヰヶぶ ;ﾐS けデヴ;ﾐゲﾉ;デｷﾗﾐ aW┗Wヴげ ふ‘ﾗゲW ;ﾐS AHｷ-Rached, 2014) that surrounds these fields. Page | 8 a) Neuroscience Since the 1990s the brain has become the focus for unprecedented research funding and attention. A series ﾗa ﾐ;デｷﾗﾐ;ﾉ ;ﾐS ｷﾐデWヴﾐ;デｷﾗﾐ;ﾉ Iﾗﾉﾉ;Hﾗヴ;デｷ┗W けHｷｪ ゲIｷWﾐIWげ ヮヴﾗﾃWIデゲ ｴ;┗W ゲﾗ┌ｪｴデ デﾗ ﾏ;ヮ ;ﾐS ┌ﾐSWヴゲデ;ﾐS ﾗ┌ヴ ﾐW┌ヴ;ﾉ ゲWﾉ┗Wゲく B┞ デｴW ゲデ;ヴデ ﾗa デｴｷゲ IWﾐデ┌ヴ┞ デｴWヴW W┝ｷゲデWS け; デヴ┌ﾉ┞ ｪﾉﾗH;ﾉ ｷﾐaヴ;ゲデヴ┌Iデ┌ヴW aﾗヴ ﾐW┌ヴﾗゲIｷWﾐIW ヴWゲW;ヴIｴげ, and by the beginning of the current decade けneuroscience acquired the characteristics of expertiseげ (Rose and Abi-Rached 2014, 6). Rose and Abi-‘;IｴWS Sｷゲデｷﾐｪ┌ｷゲｴ aﾗ┌ヴ ヮ;デｴ┘;┞ゲ ;ﾉﾗﾐｪ ┘ｴｷIｴ ﾐW┌ヴﾗゲIｷWﾐIW けHWI;ﾏW Wﾐデ;ﾐｪﾉWS ┘ｷデｴ デｴW ｪﾗ┗WヴﾐﾏWﾐデ ﾗa デｴW ﾉｷ┗ｷﾐｪげぎ ヮゲ┞Iｴﾗヮｴ;ヴﾏ;Iﾗﾉﾗｪ┞が Hヴ;ｷﾐ ｷﾏaging, neuroplasticity and genomics (Rose and Abi-Rached 2014, 6). Whilst we focus on the latter two に reflecting our subsequent concern with governing through children and families - it is worth briefly noting that the birth of neuropharmacology and its almost exponential development since the 1960s enabled a neuromolecular vision of the brain to emerge. All mental states, events and processes became articulated at the molecular level. Shortly thereafter, brain imaging technologies were deployed to make visible - and thus more intelligible - pathological and normal mental states and processes. Mediagenic visual representations, whilst shaped by the technologies and human choices that generated them, were taken to be unmediated snapshots of the truth and were ; けﾆW┞ WﾉWﾏWﾐデ ┌ﾐSWヴヮｷﾐﾐｷﾐｪ デｴW ｪヴﾗ┘ｷﾐｪ ヮﾗ┘Wヴ ﾗa ﾐW┌ヴﾗゲIｷWﾐIW ｷﾐ デｴW W┗Wヴ┞S;┞ ┘ﾗヴﾉSげ ふ‘ﾗゲW ;ﾐS AHｷ-Rached 2014, 10) including the public policy we will address. Yet it is the advent of the plastic brain that perhaps best demonstrates how knowledge of the brain has been recalibrated and come to permeate popular, policy and legal cultures. For almost a century, the prevailing wisdom was that the adult brain is transmutable and aｷ┝WSく Tｴｷゲ けｴ;ヴS┘ｷヴWSげ Hヴ;ｷﾐ ┘;ゲ ｷﾐI;ヮ;HﾉW ﾗa ヴWゲデﾗヴｷﾐｪ ﾐW┌ヴﾗﾐゲ ﾗヴ ﾐW┌ヴ;ﾉ ﾐWデ┘ﾗrks lost or damaged through illness or injury (Lowenstein and Parent 1999: 1126). Understandings of brain plasticity emerged from experiments on the rehabilitation of humans following brain injury and stroke. These demonstrated that the damaged brain could remap itself and this could be accelerated by rehabilitation practices informed by neurobiology. Such experiments transformed our understanding of the brain from a けゲWﾉa-Iﾗﾐデ;ｷﾐWSが SWIﾗﾐデW┝デ┌;ﾉｷ┣WS Wﾐデｷデ┞げ (Papadopoulos 2011, 432) デﾗ デｴW Hヴ;ｷﾐ け;ゲ ヮﾉ;ゲデｷIが ﾏ┌デ;HﾉWが ﾗヮWﾐ デﾗ デヴ;ﾐゲaﾗヴﾏ;デｷﾗﾐぐ デｴヴﾗ┌ｪｴﾗ┌デ ﾉｷaW ｷﾐ ヴWゲヮﾗﾐゲW デﾗ W┝デWヴﾐ;ﾉ ｷﾐヮ┌デゲげ ふ‘ﾗゲW ;ﾐS AHｷ-Rached 2014, 6). Plasticity was matched by the discovery of neurogenesis, the growth of new nerve cells in the brain. Page | 9 Research by Elizabeth Gould and colleagues (1999), challenged the belief that neuron development only occurs early in life, and suggested that it may be stimulated or prevented by social and environmental factors (Rose and Abi-Rached 2014: 12). This links neuroscience and epigenetics: as Dimitris Papadopoulos ┘ヴｷデWゲ けぷヮへﾉ;ゲデｷIｷデ┞ ;ヮヮW;ヴゲ ┘ｴWﾐ WヮｷｪWﾐWデｷIゲ ｷゲ ;デ work: the worldly making and remaking of the totality of an organism in the process of its SW┗WﾉﾗヮﾏWﾐデげ (2011, 433). b) Environmental epigenetics Epigenetics denotes the potentialﾉ┞ ｴWヴｷデ;HﾉW ;ﾉデWヴ;デｷﾗﾐゲ けｷﾐ ｪWﾐW W┝ヮヴWゲゲｷﾗﾐゲ デｴ;デ ﾗII┌ヴ ｷﾐ デｴW ;HゲWﾐIW ﾗa Iｴ;ﾐｪWゲ デﾗ デｴW DNA ゲWケ┌WﾐIW ｷデゲWﾉaげ ふDﾗﾉｷﾐﾗ┞ ;ﾐS JｷヴデﾉWが ヲヰヰΒぶく Cヴ┌SWﾉ┞が epigenetics concerns the mechanisms that switch genes on and off, or otherwise regulate gene expression. TheゲW Iｴ;ﾐｪWゲ I;ﾐ HW Iｴ;ヴ;IデWヴｷゲWS ;ゲ けSW┗WﾉﾗヮﾏWﾐデ;ﾉ ヮﾉ;ゲデｷIｷデ┞げが ; ﾏW;ﾐゲ by which the static or fixed genome can respond more flexibly to a dynamic environment (Meloni 2014, 602). Within the diverse field of epigenetics, environmental epigenetics focuses on the impact of environmental factors on the epigenome, and therefore their impact on physiology に including brain form and function. In focusing on environmental impact, environmental epigenetics has its genealogical roots in the normative, scientific and theoretical foundations of epidemiology, although this is now pursued at the scale of the molecular (Pickersgill et al., 2013, 430). Several key studies underpin much epigenetic commentary and are taken to provide proof of principle. These studies track changes in methylation that result from nutritional or environmental factors, with chronic stress a concept that drives the field and provides a focus for experimental design (Niewöhner, 2011, 281).3 Methylation enables the activation and deactivation of genes and their associated proteins. If the genome is now best described as a け┗;ゲデ ヴW;Iデｷ┗W ゲ┞ゲデWﾏげ ふKWﾉﾉWヴ ヲヰヱヲぶが デｴWﾐ ﾏWデｴ┞ﾉ;デｷﾗﾐ ｷゲ ヮ;ヴデ ﾗa デｴｷゲが けヴWｪ┌ﾉ;デｷﾐｪ デｴW ヮヴﾗS┌Iデｷﾗﾐ of specific proteins in response to the constantly changing signals it receives from its Wﾐ┗ｷヴﾗﾐﾏWﾐデげ ふKWﾉﾉWヴ ヲヰヱヴが ヲヴヲΑぶく TｴW ｷﾏヮ;Iデ ﾗa ﾏWデｴ┞ﾉ;デｷﾗﾐ ﾗﾐ ヮｴWﾐﾗデ┞ヮｷI W┝ヮヴWゲゲｷﾗﾐ I;ﾐ be seen clearly in nature. With honey bees, for example, feeding genetically identical larvae 3 While four mechanisms of epigenetic control have been identified, most of the environmental epigenetic studies focus on DNA methylation, see Romani et al 2015. Page | 10 differently produces different adult phenotypes as larvae fed on royal jelly become fertile queens, whilst those fed less nutritious food become sterile workers (Kucharski et al. 2008). In this context, recourse is frequently made to key epidemiological observations, for example changes resulting from periods of famine. Studies of the Dutch Hunger Winter of 1944-5 during German occupation, and the experience of malnutrition in Overkalix in Northern Sweden, are taken to establish a connection between malnutrition in utero and early life, and subsequent metabolic disorders. These disorders persist for up to six decades, include the second generation, and are transmitted via the epigenome (Painter Wデ ;ﾉくが ヲヰヰΒぶく MIGﾗ┘;ﾐげゲ (2009) study of the level of methylation in post-mortem hippocampal tissue from two groups ﾗa ゲ┌ｷIｷSW ┗ｷIデｷﾏゲが ﾗﾐW ﾗa ┘ｴｷIｴ ｴ;S ; ﾆﾐﾗ┘ﾐ ｴｷゲデﾗヴ┞ ﾗa ;H┌ゲWが ｷゲ ;ﾉゲﾗ ﾐﾗデ;HﾉWく MIGﾗ┘;ﾐげゲ work found a different methylation pattern in the abused group compared to the non-abused group. This has been interpreted as evidence of trauma becoming part of the genetic けﾏWﾏﾗヴ┞げが ┘ｴｷIｴ ﾏ;┞ デｴWﾐ ふヮﾗデWﾐデｷ;ﾉﾉ┞ぶ HW デヴ;ﾐゲﾏｷデデWS ｷﾐデWヴ-generationally (Meloni 2014, 602). In terms of laboratory science, the work of Michael Meaney, Moshe Szyf and colleagues on how variations in maternal behaviour of rats created epigenetic alterations in affected pups is central (Meaney 2001). These and similar studies are taken to show that early life experiences (most often associated with maternal behaviour) can affect neural development, shape maternal behaviour in offspring, and hence affect gene expression in a third generation. Significantly, interpretation of the evidence moves seamlessly from animal experiments to lessons for human behaviour where we must now attend to けshaping and reshaping our plastic brainsげ (Rose and Abi-Rached 2014, 12). In the processes of translation, デｴW aﾗI┌ゲ ﾗﾐ デｴW WヮｷｪWﾐWデｷI ｷﾏヮ;Iデ ﾗﾐ IｴｷﾉSヴWﾐげゲ Hヴ;ｷﾐゲ becomes gendered. Here women can be framed as the けfirst environment for children, potentially activating and augmenting a range of moral discourses and subjecting them to ふｷﾐIヴW;ゲWSぶ ゲIヴ┌デｷﾐ┞げ ふPｷIﾆWヴゲｪｷﾉﾉ Wデ ;ﾉくが ヲヰヱンが ヴンΑぶく YWデ デｴｷゲ I;ﾐ HW デヴ;IﾆWS H;Iﾆ┘;ヴSゲ デﾗ MW;ﾐW┞げゲ ヴ;デゲ ;ゲ デｴW けヮヴ;ｪﾏ;デｷI ヴWS┌Iデｷﾗﾐｷゲﾏげ ふBWIﾆ ;ﾐS Niewöhner 2006) of the laboratory funnels us towards this particular experiment, which at this point and subsequently is freighted with common-sense and gendered understandings of parenting and responsibility. Returning to our earlier statement regarding the importance of attending to the processes of socio-political embodiment, and before considering how this is extended when science is Page | 11 translated into policy, it is worth briefly detailing how Meaney, Szyf and colleagues started their work on northern hooded rats, choosing these animals because of their identifiable けﾏ;デWヴﾐ;ﾉげ HWｴ;┗ｷﾗ┌ヴゲ ﾗa け;ヴIｴWS-H;Iﾆ ﾐ┌ヴゲｷﾐｪげ ;ﾐS けﾉｷIﾆｷﾐｪ ;ﾐS ｪヴﾗﾗﾏｷﾐｪげ (Weaver et al 2004)く “┌Iｴ HWｴ;┗ｷﾗ┌ヴ ｷゲ ﾗHゲWヴ┗;HﾉW ;デ SｷaaWヴWﾐデ ﾉW┗Wﾉゲ ﾗa ｷﾐデWﾐゲｷデ┞ ゲﾗ デｴ;デ ; けﾉWゲゲ ﾏ;デWヴﾐ;ﾉげ group can be identified within any population. The experiments focused on the impact of these two types of behaviour on the methylation status of the stress relevant receptor in the ｴｷヮヮﾗI;ﾏヮ;ﾉ デｷゲゲ┌W ふPｷIﾆWヴゲｪｷﾉﾉ ヲヰヱンが ヴンヲぶく P┌ヮゲ デｴ;デ ｴ;S けﾉﾗ┘ ﾐ┌ヴゲｷﾐｪげ ﾏﾗデｴWヴゲ ｴ;S significantly higher rates of methylation, taken to indicate a higher susceptibility to stress. As WﾉゲW┘ｴWヴW ｷﾐ デｴW ﾉｷaW ゲIｷWﾐIWゲが けin epigenetics biomedical knowledge and the social structures of parenting, gender and family life mix in a range of waysげ (Pickersgill 2013, 437). The epigenetic landscape remains defined by both hype and scepticism, with claims of intergenerational stability and transmission of epi-mutations proving particularly contentious. Environmental epigenetics に including neuro-epigenetics に is a field in the making. While some in the social sciences draw parallels between environmental epigenetics and the socio-biologies of the past that were shaped by race, gender and class prejudices (Gillies et al 2017), others express varying degrees of acceptance (Rose and Abi-Rached 2013, Meloni 2014). While we have significant reservations about the scientific processes, claims, and their impact on policy-making, we share Meloniげゲ view that epigenetic work in neuroscience and epidemiology in the last decade has けundermined any residual dualism of ﾐ;デ┌ヴW ;ﾐS ﾐ┌ヴデ┌ヴWが けHｷﾗﾉﾗｪｷI;ﾉげ ;ﾐS けゲﾗIｷ;ﾉげ I;┌ゲWゲ ｷﾐ SW┗WﾉﾗヮﾏWﾐデ;ﾉ ヮヴﾗIWゲゲWゲげ ふMWﾉﾗﾐｷ ヲヰヱヴが 601). This necessitates grappling with the implications for social justice at the level of theory, policy and practice. We would, however, make two further points about the science. First, the new claims bolster work that has long linked social, economic, and environmental disadvantage to poor health and other outcomes. Environmental epigenetics has its genealogical origins in epidemiology, work on the social determinants of health, and the developmental origins of health and disease. It addresses hypotheses accepted as legitimate within these fields but now at a molecular level. Second, even as we accept the degree to which the science is contested, these claims have a strategic value, able to underpin arguments for basic rights, welfare, and redistribution. These claims do not need to languish within the gendered and punitive policy discourse they are currently associated with. At the same time, we acknowledge the concerns Page | 12 of Gillies et al (2016, 228) who argue that the context within which these sciences have emerged is so politically loaded that it ヮヴﾗ┗ｷSWゲ ; けゲﾗﾏW┘ｴ;デ ｷSWﾗﾉﾗｪｷI;ﾉﾉ┞ ゲﾗSSWﾐ H;ゲW ┌ヮﾗﾐ which to pitch a big cross-SｷゲIｷヮﾉｷﾐ;ヴ┞ デWﾐデげ. Nevertheless, we believe that it is worth exploring whether デｴW けSWWヮﾉ┞ ヮヴﾗｪヴWゲゲｷ┗W ｷﾏヮﾉｷI;デｷﾗﾐゲげ ﾗa デｴW ゲIｷWﾐIW ふFｷデ┣ｪWヴ;ﾉS Wデ ;ﾉく ヲヰヱヴぶ, when wrested from a neoliberal frame, can disrupt the narrow and gendered understanding of the けゲﾗIｷ;ﾉげ デｴ;デ ｷゲ ﾏﾗHｷﾉｷゲWS ｷﾐ Hﾗデｴ the science and policy to deliver positive outcomes for social justice. Returning to vulnerability theory, neuroscientific and epigenetic claims can underscore the ｷﾏヮﾗヴデ;ﾐIW ﾗa ;デデWﾐSｷﾐｪ デﾗ ﾗ┌ヴ けWﾏHﾗSｷWS ;ﾐS WﾏHWSSWSげ ｴ┌ﾏ;ﾐ W┝ヮWヴｷWﾐIWが ;ﾐS デｴW indivisibility of these elements. Thus there is merit in meaningfully exploring common ground. Whether this is provoked by a belief in the scientific validity of current claims or merely recognition of their strategic potential, scientific evidence can けヮヴﾗﾏヮデ ; ﾏﾗヴW SWIｷゲｷ┗W ヴWゲヮﾗﾐゲWげ ふK;ヴヮin 2018, 116) in law and policy. As K;ヴWﾐ OげCﾗﾐﾐWﾉﾉ writes, when the brain is けconceptualised as an orｪ;ﾐ ﾗa ヴWﾉ;デｷﾗﾐゲｴｷヮ ;ﾐS IﾗﾐデW┝デげ - rather than a singular computational device - けsocial inequality is less easily overlookedげ ふOげCﾗﾐﾐWﾉﾉが ヲヰヱヶが Γヵぶく Similarly, the けWヮｷｪWﾐWデｷI HﾗS┞げ ｪｷ┗Wゲ ゲデヴ;デWｪｷWゲ デﾗ ;ﾏWﾉｷﾗヴ;デW ゲﾗIｷ;ﾉ ;ﾐS ゲデヴ┌Iデ┌ヴ;ﾉ ｷﾐWケ┌;ﾉｷデｷWゲ ﾐW┘ ｷﾏヮWデ┌ゲが HWaﾗヴW デｴW┞ けｪWデ ┌ﾐSWヴ デｴW ゲﾆｷﾐげ ;ﾐS ｴ;ヴﾏ I┌ヴヴWﾐデ ;ﾐS a┌デ┌ヴW ｪWﾐWヴations (Meloni, 2015). More pointedly, and as Isabel Karpin argues, the ability to translate concerns ;ヴﾗ┌ﾐS ｷﾐWケ┌;ﾉｷデｷWゲ ;ﾐS ｴ;ヴﾏ ｷﾐデﾗ ; けヮｴ┞ゲｷI;ﾉ ヴWｪｷゲデWヴげ ヮヴﾗ┗ｷSWゲ デｴW ゲﾗヴデ ﾗa けW┗ｷSWﾐデｷ;ヴ┞ デヴ;ｷﾉ デｴ;デ ｷゲ ヮ;ヴデｷI┌ﾉ;ヴﾉ┞ ;ヮヮW;ﾉｷﾐｪ デﾗ ﾉ;┘げ ふヲヰヱΒが ヱヱンンぶく Tｴｷゲ increases the likelihood of leveraging a more responsive state. While we promote engagement with the science, we do so acknowledging the biopolitical context within which this argument sits and we finish with an additional note of caution with regard to the science and this project. The new social body of science and its life outside the laboratory In the twenty-first century the body that is emerging from neuroscience and epigenetics is embedded within and shaped by its milieu. This body is further shaped by its passage into public, legal and political spheres. Here, actors with divergent motivations employ it to do different work in different contexts. In the public domain, the social body of neuroscience in particular has had notable reach. Its penetration into public consciousness and policy is due to various factors that have already been acknowledged, particularly the translation of Page | 13 neuroscientific claims into visual, mediagenic formats. Further, neuroscience has combined with a burgeoning desire for self-improvement, alongside a growing ethic of personal responsibility for biological wellbeing, to produce a conception of the brain/body as open to けゲWﾉa-a;ゲｴｷﾗﾐｷﾐｪげ ふ‘ﾗゲW ;ﾐS AHｷ-Rached 2013: 199-224). In this context, conceptions of our corporeality pay little heed to the impact of structural factors such as poverty, deprivation and discrimination, emphasising personal responsibility for wellbeing and self-improvement. Thus デｴW┞ SWヮｷIデ ; HﾗS┞ デｴ;デ けｷゲ ﾗヮWﾐ aﾗヴ ｷﾐデWヴ┗Wﾐデｷﾗﾐ ;ﾐS ｷﾏヮヴﾗ┗WﾏWﾐデが ﾏ;ﾉﾉW;Hﾉe and ヮﾉ;ゲデｷIが ;ﾐS aﾗヴ ┘ｴｷIｴ ┘W ｴ;┗W ヴWゲヮﾗﾐゲｷHｷﾉｷデ┞ デﾗ ﾐ┌ヴデ┌ヴW ;ﾐS ﾗヮデｷﾏｷ┣Wげ ふ‘ﾗゲW ;ﾐS AHｷ-Rached 2013: 223). This represents a particular understanding of the social body which is clearly entangled with the contemporary responsibilising discourses of neo-liberalism: as Dimitri Papadopolous observes, every けWヮﾗIｴ ｴ;ゲ ｷデゲ Hヴ;ｷﾐげ ふ2011, 433). More relevant for our purposes, however, is a growing acceptance of brain-based explanations for human behaviour. This is evident in the legal domain where there is, for example, increased recourse to neuroscience in criminal trials (Catley and Claydon 2015). Recognition of the relationship between brain development and behaviour has the potential to enhance social justice through law and policy. In the youth justice field, for example, American research has demonstrated the diminished cognitive capacity of juveniles compared to adults, which may increase the risk of poor decision-making at times of stress, and has relevance for legal and social policies which infer adult capacity on children and young people (Cohen et al. 2016). Mitigating evidence of the immaturity of the juvenile brain could ;aaﾗヴS ┞ﾗ┌ﾐｪ ﾗaaWﾐSWヴゲ ｷﾐ Eﾐｪﾉ;ﾐS ;ﾐS W;ﾉWゲ ヮヴﾗデWIデｷﾗﾐ aヴﾗﾏ デｴW ｷﾐIヴW;ゲWS け;S┌ﾉデWヴ;デｷﾗﾐげ ﾗa youth justice practice (Walsh 2011). Notably, protection would be afforded if the age of criminal responsibility, which is currently ten years, was raised. This was proposed by the Royal Society in a report on Neuroscience and the Law, which stated けデｴ;デ Iｴ;ﾐｪWゲ ｷﾐ important neural circuits ┌ﾐSWヴヮｷﾐﾐｷﾐｪ HWｴ;┗ｷﾗ┌ヴ Iﾗﾐデｷﾐ┌W ┌ﾐデｷﾉ ;デ ﾉW;ゲデ ヲヰ ┞W;ヴゲ ﾗa ;ｪWげ デﾗ challenge the current age of criminal liability (Royal Society 2010: 13). In the legal context, then, the application of neuroscience has the potential to promote social justice. However, many writers have warned that neuroscience may be used to justify actions that do the very opposite, a familiar dual-use dilemma (Walsh, 2011) where the rhetoric of neuro-plasticity has ambivalent implicationsが けSｷ┗ｷSWS ;ゲ ｷデ ｷゲ HWデ┘WWﾐ ヴWゲﾗﾐ;ﾐIW ┘ｷデｴ デｴW neo-ﾉｷHWヴ;ﾉ ｷﾏ;ｪｷﾐ;ヴ┞ ;ﾐS Wﾏ;ﾐIｷヮ;デﾗヴ┞ ｷﾐゲデ;ﾐIWゲげ ふMWﾉﾗﾐｷ 2014, 603). Recent years have Page | 14 seen the conflation of neuroscience with neo-liberal and neo-conservative political ideologies デﾗ IﾗﾐIWヮデ┌;ﾉｷゲW けヴｷゲﾆ┞げ ヮﾗヮ┌ﾉ;デｷﾗﾐゲが ｷﾐSｷ┗ｷS┌;ﾉｷゲW ゲﾗIｷ;ﾉ ヮヴﾗHﾉWﾏゲが ;ﾐS justify particular interventions. In this regard, Broer and Pickersgill (2015) document the use of neuroscience within British social policy. They detail how neuroscience narratives emphasize individual responsibility (for self and Iﾗﾏﾏ┌ﾐｷデ┞ぶ ;ﾐSが けぷ┘へhile neuroscience may be leveraged by policymakers in ways that (potentially) reduce the target of their inデWヴ┗Wﾐデｷﾗﾐ デﾗ デｴW ゲﾗﾏ;ぐ they do so in order to expand the outcome of the intervention デﾗ ｷﾐIﾉ┌SW ゲﾗIｷWデ┞ ┘ヴｷデ ﾉ;ヴｪWげ (60). Whilst such interventions may be seen as attempts to build resilience, the ascription of vulnerability to individuals, alongside stigmatising strategies to promote personal responsibility regardless of the wider context, can have the opposite effect. As we proceed to demonstrate, a universal understanding of vulnerability contests this approach, articulating state responsibility for our shared vulnerability that necessitates monitoring and shaping the social landscape to promote resilience. Our challenge, then, is to responses to our corporeality that invoke a liberal subject whose (unfortunate) circumstances stem from her own failure to make the right choices. This conception is likely to lever a particular response from the state, underpinned by an alternative vision of what will promote resilience に read as self-sufficiency - with potentially regressive effects. It is to this conception, and its role in the contemporary regulation of けヮヴﾗHﾉWﾏげ IｴｷﾉSヴWﾐ ;ﾐS a;ﾏｷﾉｷWゲが デｴ;デ ┘W ﾐﾗ┘ デ┌ヴﾐく These discourses and policy initiatives illustrate how the social biologies have not lead to responses that acknowledge the wider social context and environment. Rather, ideas of the social are impoverished, as the family becomes the site at which dependency is framed and managed. In the final section we provide an alternative response framed through a vulnerability lens which mandates a different ethical starting point and generates different policy and practice outcomes. The biopolitics of brain-based public policy: The first three years movement and beyond Michel Foucault argued that public concern with childhood masturbation constituted for the first time the family as a site of surveillance overseen by medical science. He noted that けprecocious sexuality was presented from the eighteenth-century to the end of the nineteenth as an epidemic menace that risked compromising not only the future health of Page | 15 ;S┌ﾉデゲ H┌デ デｴW a┌デ┌ヴW ﾗa デｴW WﾐデｷヴW ゲﾗIｷWデ┞ ;ﾐS ゲヮWIｷWゲげ ふヱΓΓヰが ヱヴヶぶく ‘WaﾉWIデｷﾐｪ ┌ヮﾗﾐ this and the work of Claire Blencowe, Steve Garlick writes: [T]he discourses and techniques of the anti-masturbation campaigns were central to ﾏﾗSWヴﾐ HｷﾗヮﾗﾉｷデｷI;ﾉ W┝ヮWヴｷWﾐIW ┗ｷ; デｴW ヮヴﾗS┌Iデｷﾗﾐ ﾗa けデヴ;ﾐゲ-ﾗヴｪ;ﾐｷI WﾏHﾗSｷﾏWﾐデげく Tｴｷゲ けデヴ;ﾐゲ-ﾗヴｪ;ﾐｷI HﾗS┞げ ﾉｷﾐﾆWS デｴW HﾗSｷWゲ ﾗa IｴｷﾉSヴWﾐ デﾗ デｴﾗゲW ﾗa デｴW a;ﾏｷﾉ┞ ;ﾐS ヮﾗヮ┌ﾉ;デｷﾗﾐ (2014, 4). In rereading Foucault, Garlick recuperates the neglected place of security within his biopolitical framework. He argues that whilst anti-masturbation tracts were aimed ostensibly at banishing masturbation, in reality they were more concerned with enabling the ﾏﾗHｷﾉｷゲ;デｷﾗﾐ ﾗa ﾏWIｴ;ﾐｷゲﾏゲ ﾗa ゲWI┌ヴｷデ┞ぎ けFヴﾗﾏ デｴｷゲ ヮWヴゲヮWIデｷ┗Wが ﾏ;ゲデ┌ヴH;デｷﾐｪ HﾗSｷWゲ WﾏWヴｪW as key sites for modern biopolitics, and as important figures in the genealogy of modern HﾗSｷWゲげ ふヶぶく The contention that the (biopolitical) security of the nation rests on the physical and moral health of its young therefore has a long history and regulatory force. As the purported seat of child development has shifted over time, encompassing habits, instinct, free will and psychology, so the proposed target of intervention has changed (Rose and Abi-Rached 2013: 196). In line with late twentieth and early twenty-first century preoccupationsが デﾗS;┞げゲ ﾉﾗI┌ゲ of attention is the developing infant brain. This brain and the social relationships it is configured within has had a long gestation, however. Its origins are traceable to the early eighteenth-century, where growing prosperity in Europe and America meant that women were no longer required to engage in agricultural or domestic hard labour (Bruer 1999: 29- 3ヰぶく Aゲ デｴW ゲﾗIｷ;ﾉ ヴﾗﾉW ﾗa ┘ﾗﾏWﾐ Iｴ;ﾐｪWSが ゲﾗ デｴW┞ け;ゲゲ┌ﾏWSが ﾗヴ ┘WヴW ｪｷ┗Wﾐが デｴW ヴﾗﾉW ﾗa ゲｴ;ヮｷﾐｪ tｴW a┌デ┌ヴWゲ ﾗa デｴWｷヴ ｷﾐa;ﾐデゲげ ふンヰぶ ;ﾐS デｴW ┗ｷW┘ SW┗WﾉﾗヮWS デｴ;デ けﾗﾐIW ｷﾐa;ﾐI┞ ｴ;S ヮ;ゲゲWSが ﾐﾗ future experiences could reverse or change the course the mother set for her infant in those W;ヴﾉ┞ ┞W;ヴゲげ ふ30). Over time, infant determinism acquired scientific status, as psychoanalysts including Sigmund Freud and John Bowlby, and animal researchers, identified maternal behaviour as an explanatory variable in child development with lifelong effects (30-31). This focus on maternal behaviour and responsibility ｷゲ ヮ;ヴデ ﾗa デｴW ｪWﾐW;ﾉﾗｪ┞ ﾗa MW;ﾐW┞げゲ ヴ;デゲく Brain form and function was absent from these early accounts. It was not until the mid-1990s that neuroscience made real incursions into the realm of child development, when American and British policy makers employed a selective reading of neuroscience to argue for early Page | 16 intervention programmes with disadvantaged families (Bruer 1999; 2011). John Bruer (1999) identified the rapid synaptic development and peak levels of synaptic density that occur in W;ヴﾉ┞ IｴｷﾉSｴﾗﾗSが ﾐﾗデｷﾗﾐゲ ﾗa けIヴｷデｷI;ﾉ ┘ｷﾐSﾗ┘ゲげ ｷﾐ Hヴ;ｷﾐ SW┗WﾉﾗヮﾏWﾐデが ;ﾐS デｴW ｷﾏヮﾗヴデ;ﾐIW ﾗa けWﾐヴｷIｴWS Wﾐ┗ｷヴﾗﾐﾏWﾐデゲげ as the three pillars ┌ヮﾗﾐ ┘ｴｷIｴ けデｴW ﾏ┞デｴ ﾗa デｴW aｷヴゲデ デｴヴWW ┞W;ヴゲげ movement was built. On this conception, the brain displays time-bounded plasticity, such that デｴW ┘ｷﾐSﾗ┘ゲ ﾗa ﾗヮヮﾗヴデ┌ﾐｷデ┞ デｴ;デ W┝ｷゲデ ｷﾐ ｷﾐa;ﾐI┞ ;ヴW ﾉｷ;HﾉW デﾗ けゲﾉ;ﾏ ゲｴ┌デが ﾐW┗Wヴ デﾗ HW ﾗヮWﾐWS ;ｪ;ｷﾐげ (Bruer 2011: 6). Whilst this narrative contradicts a cadre of research on the endurance of brain plasticity into adolescence and adulthood, it has maintained its purchase within the highest reaches of government. In 1997, for example, at a White House conference on Early Childhood Development and Learning, First Lady Hilary Clinton IﾗﾐデWﾐSWS デｴ;デ けIｴｷﾉSヴWﾐげゲ W;ヴﾉｷWゲデ W┝ヮWヴｷWﾐIWゲが ぷｷﾐIﾉ┌Sｷﾐｪへ デｴWｷヴ ヴWﾉ;デｷﾗﾐゲｴｷヮゲ ┘ｷデｴ ヮ;ヴWﾐデゲげ ┘ｷﾉﾉ SWデWヴﾏｷﾐW Hﾗデｴ けｴﾗ┘ デｴWｷヴ brains are wｷヴWSげ ;ﾐS けﾗ┌ヴ ﾐ;デｷﾗﾐげゲ a┌デ┌ヴWげ. She also linked individual brain development to the healthy parenting of future generations and the overall security of society, suggesting that W┝ヮWヴｷWﾐIWゲ S┌ヴｷﾐｪ けデｴW aｷヴゲデ デｴヴWW ┞W;ヴゲげ ﾗa ﾉｷaW けI;ﾐ SWデWヴﾏｷﾐW ┘ｴWデｴWヴ IｴｷﾉSヴWﾐ ┘ｷﾉﾉ ｪヴﾗ┘ ┌ヮ to be peaceful or violent citizens, focused or undisciplined workers, attentive or detached ヮ;ヴWﾐデゲ デｴWﾏゲWﾉ┗Wゲげ (Clinton 1997). As Garlick notes (2014, 6), early responses to the ﾏ;ゲデ┌ヴH;デｷﾐｪ IｴｷﾉSが ;ﾐS ｷﾐ ヮ;ヴデｷI┌ﾉ;ヴ デｴW ヮヴﾗS┌Iデｷﾗﾐ ﾗa けデヴ;ﾐゲ-ﾗヴｪ;ﾐｷI WﾏHﾗSｷﾏWﾐデげが ヮヴﾗ┗ｷSW a genealogical context for modern bodies and biopolitical interventions. Similar arguments have appeared elsewhere. In England and Wales a cross-party report entitled Early Intervention: Good Parents, Great Kids, Better Citizens (Allen and Duncan Smith 2008) and the subsequent Early Intervention: The Next Steps (Allen 2011a) made the case for W;ヴﾉ┞ ｷﾐデWヴ┗Wﾐデｷﾗﾐ けデﾗ HヴW;ﾆ デｴW I┞IﾉW ﾗa ┌ﾐSWヴ;IｴｷW┗WﾏWﾐデ ;ﾐS S┞ゲa┌ﾐIデｷﾗﾐ ┘ｴｷIｴ Hﾉｷｪｴデゲ ゲﾗ ﾏ;ﾐ┞ ｷﾐSｷ┗ｷS┌;ﾉゲが a;ﾏｷﾉｷWゲ ;ﾐS ﾐWｷｪｴHﾗ┌ヴｴﾗﾗSゲげ ふAﾉﾉWﾐ ;ﾐS D┌ﾐI;ﾐ “ﾏｷデｴ ヲヰヰΒぎ ヵぶく TｴW ;┌デｴﾗヴゲ ゲヮﾗﾆW ﾗa ;ﾐ W┝ヮ;ﾐSｷﾐｪ け┌ﾐSWヴIﾉ;ゲゲげ ﾗヴ けS┞ゲa┌ﾐIデｷﾗﾐ;ﾉ H;ゲWげ ┘ｷデｴｷﾐ ゲﾗIｷWデ┞ characterised by benefit dependency, educational underachievement, family breakdown, alcohol and drug addiction, debt, violence and crime (8-10). Whilst advocating both early intervention and remedial help across the early life course for children aged 0-18, the authors deemed the first three years of life especially important, drawing upon neuroscience to ゲ┌ｪｪWゲデ デｴ;デ ヮ;ヴWﾐデ;ﾉ HWｴ;┗ｷﾗ┌ヴ けゲI┌ﾉヮデゲげ Hヴ;ｷﾐ SW┗WﾉﾗヮﾏWﾐデ ふaﾗヴ ｪﾗﾗS ﾗヴ ｷﾉﾉぶ S┌ヴｷﾐｪ デｴｷゲ ヮWヴｷﾗS ｷﾐ ヮ;ヴデｷI┌ﾉ;ヴが け;aデWヴ ┘ｴｷIｴ デｴW H;ゲｷI ;ヴIｴｷデWIデ┌ヴW ｷゲ aﾗヴﾏWS aﾗヴ ﾉｷaWげ ふAﾉﾉWﾐ ヲヰヱヱ;ぎ ヶぶく A dominant Page | 17 theme was the risk that けデｴW ｷﾐデWヴｪWﾐWヴ;デｷﾗﾐ;ﾉ デヴ;ﾐゲﾏｷゲゲｷﾗﾐ ﾗa Sｷゲ;S┗;ﾐデ;ｪW に the legacy that ;ﾉﾉ デﾗﾗ ﾗaデWﾐ ｷゲ SWゲデｷﾐ┞げ - poses to society, and the associated social and financial costs (Allan and Duncan Smith 2008: 9). The social and economic benefits of ﾏW;ゲ┌ヴWゲ デﾗ ヮヴﾗﾏﾗデW けｪﾗﾗS ヮ;ヴWﾐデｷﾐｪげ ;ﾐS ゲ┌ヮヮﾗヴデ childrenげゲ social and emotional development, as mediated by the evolving brain, were the focus of a further report entitled Early Intervention: Smart Investment, Massive Savings (Allen 2011b). Again, the risks posed by poor parenting were ﾏ;SW IﾉW;ヴぎ けthe costs of educational underachievement, drink and drug abuse, teenage pregnancy, vandalism and criminality, court and police costs, academic underachievement, lack of aspiration to work and the bills from lifetimes wasted while claiming benefitsげ ふxiv). This (trans-ﾗヴｪ;ﾐｷIぶ ﾐ;ヴヴ;デｷ┗W ﾉｷﾐﾆｷﾐｪ ヮﾗﾗヴ ヮ;ヴWﾐデｷﾐｪが IｴｷﾉSヴWﾐげゲ Hヴ;ｷﾐ SW┗WﾉﾗヮﾏWﾐデ ;ﾐS societal security resurfaced in a speech by David Cameron, in which he outlined the CﾗﾐゲWヴ┗;デｷ┗W Gﾗ┗WヴﾐﾏWﾐデげゲ ゲデヴ;デWｪ┞ aﾗヴ W┝デWﾐSｷﾐｪ デｴW Life Chances of children (Cameron ヲヰヱヶぶく ‘Wデ┌ヴﾐｷﾐｪ デﾗ G;ヴﾉｷIﾆげゲ attention to ゲWI┌ヴｷデ┞ ｷﾐ Fﾗ┌I;┌ﾉデげゲ HｷﾗヮﾗﾉｷデｷIゲが ヴ┌ﾐﾐｷﾐｪ throughout the speech was an appeal to security, which suggested that social and economic stability are intertwined. Moreover, as before, neuroscience was employed to support the ﾐWWS aﾗヴ W;ヴﾉ┞ ｷﾐデWヴ┗Wﾐデｷﾗﾐぎ け[W]hen neuroscience shows us the pivotal importance of the first few years of life in determining the adults we become, we must think much more radically about improving family ﾉｷaW ;ﾐS デｴW W;ヴﾉ┞ ┞W;ヴゲげ (5). The threat posed by dysfunctional families デﾗ IｴｷﾉSヴWﾐげゲ SW┗WﾉﾗヮﾏWﾐデ ;ﾐS a┌デ┌ヴW ﾉｷaW Iｴ;ﾐIWゲが ;ﾐS デﾗ ゲﾗIｷ;ﾉ ;ﾐS WIﾗnomic security more broadly, appeared evident. In line with these policy pronouncements, recent years have seen increased recourse to early intervention with deprived children and families. With clear echoes of the past, many measures aim to regulate the behaviour of parents in order to address problematic behaviour in children, though now they invoke narratives about brain development as justification. Eaaﾗヴデゲ デﾗ けヮﾗﾉｷIW ヮヴWｪﾐ;ﾐI┞げ provide an example of such brain-based early intervention (Lowe Wデ ;ﾉ ヲヰヱヵぎ ヱヶぶく TｴW WaaWIデゲ ﾗa SﾗﾏWゲデｷI ┗ｷﾗﾉWﾐIWが けヮゲ┞IｴﾗゲﾗIｷ;ﾉ ゲデヴWゲゲげ ;ﾐS ﾏ;デWヴﾐ;ﾉ ;ﾉIﾗｴﾗﾉ consumption during pregnancy on the foetal brain are all cited in policy documents as reasons デﾗ ｷﾐデWヴ┗WﾐW ┘ｷデｴ けヴｷゲﾆ┞げ ﾏﾗデｴWヴゲ (Allen 2011a). Although efforts to support women during ヮヴWｪﾐ;ﾐI┞ ;ヴW ┘WﾉIﾗﾏWが デｴWヴW ｷゲ IﾗﾐIWヴﾐ ;Hﾗ┌デ デｴW Iﾗﾐゲデヴ┌Iデｷﾗﾐ ﾗa けヴｷゲﾆげ ┘ｷデｴｷﾐ デｴWゲW narratives. Whilst recent years have seen increased regulation of, and intrusion upon, pregnant women in general (Lowe 2016), Frederick (2017: 75) notes a particular focus on Page | 18 デｴﾗゲW ┘ｴﾗが H┞ ┗ｷヴデ┌W ﾗa デｴWｷヴ ヮﾗ┗Wヴデ┞が WデｴﾐｷIｷデ┞が Sｷゲ;Hｷﾉｷデ┞ ﾗヴ ゲW┝┌;ﾉｷデ┞ け;ヴW ゲ┞ゲデWﾏ;デｷI;ﾉﾉ┞ SWaｷﾐWS ;ゲ さヴｷゲﾆ┞ざ ﾏﾗデｴWヴゲ ┘ｴﾗ ;ヴW ｷﾐ;SWケ┌;デW aﾗヴ デｴW デ;ゲﾆ ﾗa ｷSW;ﾉ ﾏﾗデｴWヴｷﾐｪげく AﾐS ┘ｴｷﾉゲデ concern for the foeデ;ﾉ Hヴ;ｷﾐ ﾏ;┞ HW デｴW ゲデ;デWS ヴ;デｷﾗﾐ;ﾉWが ゲﾗﾏW ゲ┌ゲヮWIデ デｴ;デ け┌ﾐSWヴﾉ┞ｷﾐｪ ヮﾗﾉｷデｷI;ﾉ IﾗﾐIWヴﾐゲ ;Hﾗ┌デ ヮﾗデWﾐデｷ;ﾉ ゲﾗIｷWデ;ﾉ SｷゲﾗヴSWヴ aヴﾗﾏ ヮﾗﾗヴ ┘ﾗﾏWﾐげゲ IｴｷﾉSヴWﾐ ぐ ぷ;ヴWへ ;デ デｴW ｴW;ヴデ ﾗa デｴWゲW ヮﾗﾉｷIｷWゲげ ふLﾗ┘W Wデ ;ﾉ ヲヰヱヵぎ ヲヶぶく Similar logics also appear to inform the recent increase in non-consensual adoption cases (Wastell and White 2017: 111-127). When asked in 2012 about the rise in children being taken ｷﾐデﾗ I;ヴWが デｴW デｴWﾐ PヴWゲｷSWﾐデ ﾗa デｴW AゲゲﾗIｷ;デｷﾗﾐ ﾗa DｷヴWIデﾗヴゲ ﾗa CｴｷﾉSヴWﾐげゲ “Wヴ┗ｷIWゲ ;デデヴｷH┌デWS it (in part at ﾉW;ゲデぶ デﾗ HWデデWヴ ┌ﾐSWヴゲデ;ﾐSｷﾐｪゲ ﾗa デｴW ﾉｷﾐﾆ HWデ┘WWﾐ けﾐWｪﾉWIデa┌ﾉ ヮ;ヴWﾐデｷﾐｪ ぐ ;ﾐS デｴW ヮｴ┞ゲｷI;ﾉ S;ﾏ;ｪW デﾗ Hヴ;ｷﾐ SW┗WﾉﾗヮﾏWﾐデ ｷデ I;ﾐ Sﾗ ┘ｷデｴ ┗Wヴ┞ ┞ﾗ┌ﾐｪ IｴｷﾉSヴWﾐげ ふW;ゲデWﾉﾉ ;ﾐS White 2012: 410). Section 14 of the Children and Families Act 2014 requires courts to process I;ヴW ヮヴﾗIWWSｷﾐｪゲ け┘ｷデｴﾗ┌デ SWﾉ;┞げ ;ﾐS けｷﾐ ;ﾐ┞ W┗Wﾐデ ┘ｷデｴｷﾐ デ┘Wﾐデ┞-six weeks beginning with デｴW S;┞ ﾗﾐ ┘ｴｷIｴ デｴW ;ヮヮﾉｷI;デｷﾗﾐ ┘;ゲ ｷゲゲ┌WSげが ;ﾉデｴﾗ┌ｪｴ W┝デWﾐゲｷﾗﾐゲ ;ヴW ヮWヴﾏｷデデWS ｷﾐ exceptional cases. Critics contest the scientific basis of these developments, suggesting that デｴW Iﾗﾐaﾉ;デｷﾗﾐ ﾗa W;ヴﾉ┞ ｷﾐデWヴ┗Wﾐデｷﾗﾐ ;ﾐS IｴｷﾉS ヮヴﾗデWIデｷﾗﾐ ｴ;ゲ IヴW;デWS ; けヮWヴaWIデ ゲデﾗヴﾏげ (Featherstone et al. 2014: 4) that has driven the increase in applications for care orders, which must, on this narrative, occur quickly before the critical window of opportunity to support brain development closes. The concern is that this drives a policy of speedy removal, rather than sustained and meaningful efforts to support families to stay together. Current debates around Adverse Childhood Experiences (ACEs) as a potential indicator of later life outcomes provide the latest policy discourse to repeat this pattern. As the ACE movement gains momentum globally, sIｷWﾐデｷゲデゲ IﾗﾐデWﾐS デｴ;デ ACEゲ ゲ┌Iｴ ;ゲ け;H┌ゲWが ﾐWｪﾉWIデが W┝ヮﾗゲ┌ヴW デﾗ domestic violence, alcohol and mental health problems, and having an incarcerated family ﾏWﾏHWヴげ ｴ;┗W ゲｷｪﾐｷaｷI;ﾐデ ｷﾏヮﾉｷI;デｷﾗﾐゲ aﾗヴ ﾉ;デWヴ ﾉｷaW ﾗ┌デIﾗﾏWゲ ふBWﾉﾉｷゲが IｷデWS ｷﾐ Hﾗ┌ゲW of Commons 2018, Q.2). However, contemporary models construct ACEs as individual and family factors (Bellis, cited in House of Commons 2018, Q.7) thus again articulating a narrow view of the social environment (White, cited in House of Commons 2018, Q.12) and targeting particular families for intervention. Parsing Garlick (2014), during the last three decades the developing infant brain has emerged ;ゲ ; ﾆW┞ ゲｷデW aﾗヴ ﾏﾗSWヴﾐ HｷﾗヮﾗﾉｷデｷIゲが ;ゲ デｴW けデヴ;ﾐゲ-ﾗヴｪ;ﾐｷI Hヴ;ｷﾐげ ﾉｷﾐﾆゲ デｴW ;Iデｷﾗﾐゲ ﾗa ﾏﾗデｴWヴゲ Page | 19 デﾗ IｴｷﾉSヴWﾐげゲ Hヴ;ｷﾐ SW┗WﾉﾗヮﾏWﾐt and the wellbeing of the wider population. These developments, a form of biopolitical governing through the brain (Rose and Abi-Rached 2014), continue a long tradition of governmental strategies to regulate children and families and are controversial for multiple reasons, not least the scientific basis underpinning many arguments (Rose and Abi-Rached 2013; Bruer 1999, 2011; Lowe et al. 2015; Wastell and White ヲヰヱΑぶく Nﾗデｷﾗﾐゲ ﾗa けIヴｷデｷI;ﾉ ヮWヴｷﾗSゲげ ｷﾐ Hヴ;ｷﾐ SW┗WﾉﾗヮﾏWﾐデ ｴWﾉヮ デﾗ Iﾗﾐゲデヴ┌Iデ ; ﾉｷHWヴ;ﾉ IﾗﾐIWヮデｷﾗﾐ of parenthood characterised by personal responsibility, with little reflection upon the wider social context in which parenting takes place. Moreover, these constructions are not gender neutral and particularly impact on marginalised women, whose actions are deemed to threaten not only the welfare of their children but also the security of wider society, as they incubate and parent the next generation of risky citizens. A vulnerability theory response to the young social brain Policy responses to the claims of developmental neuroscience appear primarily directed at the family as the social environment of concern. Embedded in a neoliberal logic, these policies suggest that the main threat to individual and societal security is inadequate parenting (Gustafson 2011). Thus contemporary readings of the embedded けbrain-bodyげ (Papadopoulos 2011) reflect notions of personal and parental responsibility for behaviour and ignore broader social and structural factors. Developmental ﾐW┌ヴﾗゲIｷWﾐIW HWIﾗﾏWゲ ヮ;ヴデ ﾗa ; けデヴ;ﾐゲ-organic WﾏHﾗSｷﾏWﾐデげ デｴ;デ Sヴ;┘ゲ デﾗｪWデｴWヴ W;ヴﾉ┞ IｴｷﾉSｴﾗﾗS SW┗WﾉﾗヮﾏWﾐデが けヮヴﾗHﾉWﾏげ a;ﾏｷﾉｷWゲが ;ﾐS デｴW future (social and economic) security of the population. Further, biopolitics has always had political economy as its organising rationale and, as Papadopoulos observes, every ┌ﾐSWヴゲデ;ﾐSｷﾐｪ ﾗヴ Iﾗﾐaｷｪ┌ヴ;デｷﾗﾐ ﾗa デｴW Hヴ;ｷﾐ けｷゲ デｴW ヴWゲ┌ﾉデ ﾗa デｴW IﾗﾐﾃﾗｷﾐWS ;Iデｷﾗﾐ ﾗa I;ヮｷデ;ﾉ and technoscience in Western capitalist societiesげ ふ2011, 449). This translates in a number of ways, from the somewhat mundane policy level where packages offered by private sector players get bundled up in public policies around early intervention (Rose and Rose, 2016, 152), to the more complex mechanisms whereby our very understanding of brain physiology becomes inseparable from the logics of neoliberalism with significant biopolitical consequences for regulation of the self and families. In terms of the latter, while Jan Macvarish et al デ;ﾉﾆ ﾗa デｴW けヮﾗﾉｷデｷIｷゲ;デｷﾗﾐ ﾗa ヮ;ヴWﾐデｷﾐｪげ ふヲヰヱヴぎ ΑΓヵぶ ｷデ ﾏｷｪｴデ HW ﾏﾗヴW IﾗヴヴWIデ to デ;ﾉﾆ ﾗa けHｷﾗﾉﾗｪｷゲWS ヮ;ヴWﾐデｷﾐｪげ ふLowe et al. 2015, 198)が ﾗヴ けﾐW┌ヴﾗヮ;ヴWﾐデｷﾐｪげ ふM;I┗;ヴｷゲｴ ヲヰヱヶぶ, Page | 20 ;ﾉHWｷデ ｷﾐ ; IﾗﾐデW┝デ ┘ｴWヴW ┘W ｴ;┗W けヮﾗﾉｷデｷIゲ Sｷゲｪ┌ｷゲWS ;ゲ ゲIｷWﾐIWげ ふBヴ┌Wヴ ヲヰヱヱが 12). Yet, it is a particular science and a particular social body, and we contend that these policies engage an impoverished understanding of both デｴW ﾉｷaW ゲIｷWﾐIWゲ ;ﾐS デｴW けWﾏHﾗSｷWS ;ﾐS WﾏHWSSWSげ child. Martyn Pickersgill argues that the complexity of contemporary developmental models directs ┌ゲ デﾗ ヴW┗ｷゲｷデ けゲﾗIｷ;ﾉ ゲIｷWﾐデｷaｷI デｴWﾗヴｷWゲ ﾗa WﾏHﾗSｷﾏWﾐデが ｴ;Hｷデ┌;ﾉｷ┣;デｷﾗﾐ ;ﾐS デｴW ヴWヮヴﾗS┌Iデｷﾗﾐ ﾗa ゲﾗIｷ;ﾉ ｷﾐWケ┌;ﾉｷデ┞げ ふPｷIﾆWヴゲｪｷﾉﾉ Wデ ;ﾉくが ヲヰヱンが ヴヴヰぶく In an attempt to challenge social inequality, the universal vulner;HﾉW ゲ┌HﾃWIデ ｷゲ aｷｪ┌ヴWS ;ゲ ｷﾐｴ;Hｷデｷﾐｪ ;ﾐ けWﾏHWSSWSげ HﾗS┞く Iﾐ デｴｷゲ ゲWIデｷﾗﾐ we illustrate how a vulnerability theory that takes embodiment seriously can provide an analytical and deliberative framework to facilitate the translation of contemporary life science claims into more effective and more just state responses. An important part of this is the way in which the theory challenges the current policy default to the family as a source of privatised responsibility. To begin, it is worth repeating that Fineman identifies vulnerability as both universal and particular. The issue of particularity links to the state provision of resources that is responsive to individual circumstances and needs: [O]ur individual experience of vulnerability varies according to the quality and quantity of the resources we possess or can command. While society cannot eradicate our vulnerability, it can and does mediate, compensate, and lessen our vulnerability through programs, institutions and structures (2012, 80). FｷﾐWﾏ;ﾐげゲ ┗ulnerability approach is therefore institutionally focused, identifying the responsibility of state institutions to provide assets to strengthen our resilience; that is, our ability to respond to what might befall us. Fineman notes that these may be assets such as financial capital we are able to mobilise to mitigate harm, illness and so forth, but also assets understood in terms of human capital or capabilities that enhanIW ﾗ┌ヴ ;Hｷﾉｷデ┞ デﾗ けHﾗ┌ﾐIW b;Iﾆげ. However, the new social biologies deepen this idea of resilience as our biological け;ゲゲWデゲげ ;ヴW ゲｴ;ヮWS ;デ ; ﾏﾗﾉWI┌ﾉ;ヴ ﾉW┗Wﾉ and may be heritable by future generations. Thus the social bodies of the life sciences afford another tool in the armoury of those calling for a responsive state, strengthening demands by illustrating the importance of social environment and its impact upon the (molecular) fabric of our lives. Thus ┘W ﾏ┌ゲデ ヴWIﾗｪﾐｷゲW デｴW けﾏ;ﾐ┞ ways in which the state に through law に shapes institutions from their inception to their Page | 21 Sｷゲゲﾗﾉ┌デｷﾗﾐが ;ﾐS デｴW ┘;┞ゲ ｷﾐ ┘ｴｷIｴ デｴﾗゲW ｷﾐゲデｷデ┌デｷﾗﾐゲ ヮヴﾗS┌IW ;ﾐS ヴWヮﾉｷI;デW ｷﾐWケ┌;ﾉｷデｷWゲげ (2010, 274). This may shape not only personal circumstances but also the soma, with implications for the resilience of current and future generations. Bringing science and theory together in this way can challenge impoverished understandings ﾗa デｴW けゲﾗIｷ;ﾉげ ｷﾐ Hﾗデｴ ゲIｷWﾐIW ;ﾐS ヮﾗﾉｷI┞, to contend the situation where け[t]he genetic determinism and reductionism of the past are replaced by a conception of early years ヮﾉ;ゲデｷIｷデ┞ デｴヴﾗ┌ｪｴ デｴW ｷﾐデWヴ;Iデｷﾗﾐ ﾗa Hヴ;ｷﾐ ;ゲ Hｷﾗﾉﾗｪ┞ ;ﾐS デｴW ゲﾗIｷ;ﾉ ;ゲ ヮ;ヴWﾐデｷﾐｪげ ふGｷﾉﾉｷWゲ Wデ ;ﾉ 2016, 229). While Fineman recognises the family as a source of nurturing and care it is also a political mechanism through which responsibilities are privatised and inequalities elided. The family is, she argues, けa very public institution, assigned an essential public role within society. The family is delegated primary responsibility for dependencyげ (2013, 15). In the policies noted above, the broad range of environments within which we are embedded and upon which future development may be dependent (both in terms of the individual and potential future generations) is reduced to the family and, frequently, the mother. This is, of course, an impoverished understanding of both the scientific claims and ideas of social responsibility. Importantly, it also fails to account for the limited impact that individual families might make in the context of broader social environments of disadvantage and the fragility of families themselves. While the family may provide a source of shelter and resilience, it is itself a vulnerable structure and けゲ┌ゲIWヮデｷHﾉW デﾗ ｴ;ヴﾏ ;ﾐS Iｴ;ﾐｪWげ (11). As such, under a vulnerability analysis both individuals and families require the state to (equitably) provide assets that enable resilience and flourishing. In terms of the social biologies, it is clear that government cannot privatise all responsibility for our dependency on our environments to families, but must be responsive to environments of poverty, stress and degradation. Aゲ FｷﾐWﾏ;ﾐ ﾐﾗデWゲが けIﾐWケ┌;ﾉｷデｷWゲ ;ヴW ヮヴﾗS┌IWS ;ﾐS reproduced by society and its institutions. Because neither inequalities nor the systems that ヮヴﾗS┌IW デｴWﾏ ;ヴW ｷﾐW┗ｷデ;HﾉWが デｴW┞ I;ﾐ ;ﾉゲﾗ HW ﾗHﾃWIデゲ ﾗa ヴWaﾗヴﾏげ ふヲヰヰΒが ヵぶく In the context of early development, デｴｷゲ ┘ﾗ┌ﾉS ヴWケ┌ｷヴW ┌ゲ デﾗ ;デデWﾐS デﾗ IｴｷﾉSヴWﾐげゲ けembodied and embeddedげ lives beyond the family, in the wider context of social welfare, health provision and the broader physical environment. This clearly requires a more responsive state, one that is responsibilised to secure our neural and epigenetic futures. This challenges much of the current approach, as Lowe et al argue: Page | 22 [T]he mind of the child is reduced to the brain, and the brain comes to represent the child. It is argued that a highly reductionist and limiting construction of the child is produced, alongside the idea that parenting is the main factor in child devWﾉﾗヮﾏWﾐデぐく [T]his focus ﾗﾐ IｴｷﾉSヴWﾐげゲ Hヴ;ｷﾐゲぐ ﾗ┗Wヴﾉﾗﾗﾆゲ IｴｷﾉSヴWﾐげゲ WﾏHﾗSｷWS ﾉｷ┗Wゲ ;ﾐS デｴｷゲ ｴ;ゲ implications for the design of IｴｷﾉSヴWﾐげゲ ｴW;ﾉデｴ ;ﾐS ┘Wﾉa;ヴW ゲWヴ┗ｷIWゲ ふヲヰヱヵが ヱΓΒぶく While our policy analysis has highlighted significant problems with how the science is responded to or mobilised, we note that the policy landscape is not without potentially positive examples. The New LaHﾗ┌ヴ Gﾗ┗WヴﾐﾏWﾐデげゲ “┌ヴW “デ;ヴデ ｷﾐｷデｷ;デｷ┗W ｷゲ ﾗﾐW ;ﾏHｷ┗;ﾉWﾐデ example where the けﾉｷaW Iﾗ┌ヴゲWげ of the initiative provides an illustration of both the limitations and possibilities of social policy engagement with neuro-developmental claims. Introduced in 1998, the initial aim was to establish 250 Sure Start local programmes to support parents in providing education and care for pre-school children in deprived areas (Bate and Foster 2017: 4-5). Subsequently, however, local programmes were combined with existing cｴｷﾉSヴWﾐげゲ ゲWヴ┗ｷIWゲ デﾗ IヴW;デW ﾗ┗Wヴ ンがヶヰヰ “┌ヴW “デ;ヴデ CｴｷﾉSヴWﾐげゲ CWﾐデヴWげゲ H┞ ﾏｷS-2009 (Smith et al 2018: 4), representing a shift from targeted to universal provision. This shift reflected a concern that disadvantage was felt by families outside the first Sure Start areas and that targeted programmes were stigmatising (Bate and Foster 2017: 11). The move to universal provision can be characterised as providing a limited but important illustration of FｷﾐWﾏ;ﾐげゲ conception of the responsive state; where institutions are monitored to ensure the fair and just distribution of resilience (Fineman 2017, 4) Views of Sure Start are mixed. Karen Clarke (2006: 699), for example, describes the scheme as focusing on parenting practices and the home environment rather than the wider ゲデヴ┌Iデ┌ヴ;ﾉ IﾗﾐデW┝デ ┘ｴｷIｴ けヴｷゲﾆゲ ゲﾉｷSｷﾐｪ ｷﾐデﾗ ; ﾏﾗヴ;ﾉ SｷゲIﾗ┌ヴゲW ﾗa ゲﾗIｷ;ﾉ W┝Iﾉ┌ゲｷﾗﾐ デｴ;デ Hﾉ;ﾏWゲ ヮ;ヴWﾐデゲ aﾗヴ ヮﾗﾗヴ ﾗ┌デIﾗﾏWゲげ, whilst Macvarish (2016: 87) views the automatic birth ヴWｪｷゲデヴ;デｷﾗﾐ ヮヴ;IデｷIWS H┞ ﾗﾐW “┌ヴW “デ;ヴデ CWﾐデヴW ;ゲ けｷﾐIヴW;ゲｷﾐｪ デｴW ﾐWデ of monitoring and ゲ┌ヴ┗Wｷﾉﾉ;ﾐIW デｴ;デ ゲ┌ヴヴﾗ┌ﾐSゲ ヮ;ヴWﾐデゲ ｷﾐ ヮﾗﾗヴWヴ ;ヴW;ゲげく Aﾐ┞ Iヴｷデｷケ┌W ﾏ┌ゲデが ｴﾗ┘W┗Wヴが ヴWIﾗｪﾐｷゲW that some schemes stretched beyond narrow constructions of the social: the development of Iﾗﾏﾏ┌ﾐｷデ┞ ;ﾉﾉﾗデﾏWﾐデゲが ;ﾐS デｴW ヮヴﾗ┗ｷゲｷﾗﾐ ﾗa けゲ;aW ;ﾐS a┌ﾐげ ;Iデｷ┗ｷデｷWゲ aﾗヴ a;デｴWヴゲ ;ﾐS IｴｷﾉSヴWﾐ in a deprived, high-traffic area are examples of work to ameliorate poverty conducted under the auspices of Sure Start (Featherstone et al. 2014: 107). The assertion in a 2010 Select Page | 23 CﾗﾏﾏｷデデWW ヴWヮﾗヴデ デｴ;デ けぷｷへデ ｷゲ Iﾗﾏﾏon for parents to describe the impact of their contact with ぷ“┌ヴW “デ;ヴデへ CｴｷﾉSヴWﾐげゲ CWﾐデヴWゲ ;ゲ さﾉｷaW Iｴ;ﾐｪｷﾐｪざげ is also salient (Bate and Foster 2017: 13). In 2010 the new Tory-led Coalition Government resurrected a targeted model for Sure Start デｴ;デ aﾗI┌ゲWS ﾗﾐ けデｴW ﾐWWSｷWゲデ a;ﾏｷﾉｷWゲげ ふIｷデWS ｷﾐ B;デW ;ﾐS FﾗゲデWヴ ヲヰヱΑぎ ヱヴぶく Tｴｷゲ ヴWデ┌ヴﾐ デﾗ ; aﾗI┌ゲ ﾗﾐ け┗┌ﾉﾐWヴ;HﾉW ｪヴﾗ┌ヮゲげ ;ﾐS ゲｴヴｷﾐﾆｷﾐｪ IﾗﾐIWヮデｷﾗﾐ ﾗa デｴW ゲﾗIｷ;ﾉが ;ﾉﾗngside funding cuts under the Coalition and subsequent Conservative Government, have precipitated a reduction in Sure Start provision: 1,000 centres have now closed or provide reduced services (Smith et al. 2018). As austerity politics have taken hold some practitioners have employed neuroscience to promote their professional interests and contend that early intervention is more cost-effective than remedial action with risky families (Gillies et al 2017: 79-80). This appeal to a narrow, economic rationale chimes with a neoliberal, responsibilizing agenda, ignoring デｴW けヴW;ﾉ-life ambiguities of culturWが Sｷ┗Wヴゲｷデ┞ ;ﾐS SｷaaWヴWﾐIWげ ふ80) that shape our embodied and embedded lives. When read together, the different chapters of the Sure Start story demonstrate how neuroscience may be used for progressive or regressive ends. Our emphasis would be on the polic┞げゲ middle years, where a responsive state expanded coverage distributing benefits or assets across a population, thereby developing resilience in individuals and families. IﾐSWWSが ｷデ ｷゲ ┘ﾗヴデｴ ﾐﾗデｷﾐｪ FｷﾐWﾏ;ﾐげゲ ふヲヰヱΑぎ ヱヴΒぶ ;ヮヮヴ;ｷゲ;ﾉ ﾗa デｴW ヮﾗデWﾐデｷ;ﾉ benefits of Head Start, the American precursor of Sure Start: ぐ sometimes privileges conferred in one system can compensate for or even cancel out disadvantages encountered in others. A solid, early start with regard to education, such as that provided by Head Start, an effective pre-school programme, may trump poverty as a predicator of success later in School. Fineman is, of course, correct and our argument is that the life sciences can scaffold and propel such arguments forward, as science has the epistemological weight to provoke a more decisive political response (Karpin 2018). Before concluding, however, we wish to strike a note of caution. We have argued that the new social biologies may enhance the political purchase of social justice projects that are premised on our embodied and embedded place in the world. Nevertheless, we must not forget that scientific knowledge is not severable from the contexts within which it is fabricated (Latour, 1987). More specifically, the body of the Page | 24 social turn in the biological sciences is itself shaped by the social context within which knowledge of that body is generated. MW;ﾐW┞げゲ ヴ;デゲ ヮヴﾗ┗ｷSW a clear illustration, and we have already signalled our concerns in this regard, but we return now to these northern hood rats and the social structures they are interpolated and constructed within. In epigenetics, methylation has emerged as an identifiable and therefore measurable object. Nevertheless, how it becomes embedded in - and activated through - particular experimental hypotheses and designs is open ended. This process has been eclectic. Environmental epigenetics has relied on laboratory animal experiments where pregnant rats and the pups offer an observable world where confounding variables are limited; デｴW けヮヴ;ｪﾏ;デｷI ヴWS┌Iデｷﾗﾐｷゲﾏげ ﾗa ﾉ;Hﾗヴ;tory science (Beck and Niewöhner 2006). Emerging from this, and part of the けstabilisatｷﾗﾐ ﾗa ;ﾐ W┝ヮWヴｷﾏWﾐデ;ﾉ ゲ┞ゲデWﾏげが early life adversity has surfaced as an epistemic object. This object provides both an interpretive frame and an established concept anchoring ongoing research in relevant pasts (Niewöhner 2011, 288). Again we can note the genealogical significance of the masturbating child of the Victorian life sciences and their resulting parenting prescriptions. As such, scientific fact is propelled forward by the exigencies of the laboratory and its traction is increased as it dovetails with the longstanding biopolitical focus on early development in health and social policy discourses. Thus, while the bodies of the new social biologies are understood as embedded in and affected by their social environments, claims can re-inscribe or rearticulate existing inequalities while simultaneously obscuring and individualising their social causes and contexts (Karpin 2016, 2018) as we see in the current debates around ACEs. These processes take place both in the laboratory and in the translation of scientific findings into policy. As Fernando Vidal argues in respect of the scientific focus of this article, the ideology of けbrainhoodげ に the pervasive idea that we are our brains に けｷﾏヮWﾉﾉWS ﾐW┌ヴﾗゲIｷWﾐデｷaｷI ｷﾐ┗Wゲデｷｪ;デｷﾗﾐ ﾏ┌Iｴ ﾏﾗヴW デｴ;ﾐ ｷデ ヴWゲ┌ﾉデWS aヴﾗﾏ ｷデげ (Vidal, 2009). While we argue for careful engagement with the science we acknowledge that others I;┌デｷﾗﾐ デｴ;デ ｷデ ｷゲ けH;S ゲIｷWﾐIWげ (Gillies et al 2016). Nevertheless, we argue that at the very least a strategic mobilisation of underlying claims can support arguments that seek to provide a counter-narrative to the weight of discourses championing austerity and responsibilisation. Conclusion This article seeks to provoke collaboration across the humanities, social and life sciences in the context of an increasingly visible population of social bodies. Our starting point has been Page | 25 the corporeal humanisms which centre the body in new models of ethical responsibility. Specifically, we have addressed FｷﾐWﾏ;ﾐげゲ vulnerability theory, through the lens of the けゲﾗIｷ;ﾉ デ┌ヴﾐげ ｷﾐ デｴW life sciences. Those engaging with vulnerability theory have primarily directed themselves towards the social and institutional structures within which bodies are embedded. However, acknowledging overlapping understandings of the social bodies that have been at the centre of our argument, we argue that we can employ investigations within デｴW けﾐW┘ HｷﾗゲﾗIｷ;ﾉ デWヴヴ;ｷﾐげ (Meloni 2014, 595) to more fully flesh out the embodied dimension of this framework. The body of environmental epigenetics, for instance, is: ぐ ; HﾗS┞ デｴ;デ ｷゲ ｴW;┗ｷﾉ┞ ｷﾏヮヴWｪﾐ;デWS H┞ ｷデゲ ﾗ┘ﾐ ヮ;ゲデ ;ﾐS H┞ デｴW ゲﾗIｷ;ﾉ ;ﾐS ﾏ;デWヴｷ;ﾉ environment within which it dwells. It is a body imprinted by evolutionary and transgenerational time, by early-life and a body that is highly susceptible to changes in its social and material environment (Niewöhner 2011, 290). Both vulnerability theory and epigenetics thus depart from the body associated with the ﾉｷHWヴ;ﾉ ゲ┌HﾃWIデが け┘ｷデｴ ｷデゲ ﾐﾗデｷﾗﾐ ﾗa ゲﾆｷﾐ-bounded self and autonomy, steered through life by デｴW ｷﾐSｷ┗ｷS┌;ﾉ ﾏｷﾐS ;ﾐS Hヴ;ｷﾐげが ;ﾐ ｷSW; けWﾐｪヴ;ｷﾐWS ｷﾐ WWゲデWヴﾐ Iﾗゲﾏﾗﾉﾗｪ┞げ ふNiewöhner 2011, ヲΓヰぶく TｴW けﾏ┌ﾉデｷヮﾉ┞ IﾗﾐﾐWIデWS ゲﾗIｷ;ﾉ Hヴ;ｷﾐげ ふMWﾉﾗﾐｷが ヲヰヱヴぶ ゲｷﾏｷﾉ;ヴﾉ┞ Iｴ;ﾉﾉWﾐｪWゲ デｴｷゲ けゲﾆｷﾐ- Hﾗ┌ﾐSWS ゲWﾉaげく These richer understandings of what it is to recognise デｴW HﾗS┞ ;ゲ けWﾏHWSSWSげ strengthens the theory, helping to articulate what a more responsive state would look like, and why it matters. In the context of the scientific claims and policies we address, it is notable that vulnerability theory directly problematizes and challenges the default to the family and the privatization of responsibility this entails. Developments in the life sciences are being shaped not only by method and what is technically achievable (Fujimura 1987), but also by dominant preoccupations and pre-existent logics. HWﾐIWが デｴW ﾏ;デWヴﾐ;ﾉ HﾗS┞ WﾏWヴｪWゲ ;ゲ ;ﾐ けWヮｷｪWﾐWデｷI ┗WIデﾗヴげ ふ‘ｷIｴ;ヴSゲﾗﾐが 2015) and this extends to a regulatory focus on the child and her early years neurological development. The けsocialげ ｷゲ red┌IWS デﾗ けﾐ┌ヴゲｷﾐｪげ ふケ┌; ヮ;ヴWﾐデｷﾐｪぶ ｷﾐ デｴW ﾉ;Hﾗヴ;デﾗヴ┞, ;ﾐS けゲﾗIｷ;ﾉげ ヴWゲヮﾗﾐゲｷHｷﾉｷデ┞ ｷゲ reduced to the family in policy (Gillies et al, 2016, 224). Vulnerability theory provides a framework where we are directed to consider, and expect, a more public and institutional grounding of responsibility. A circumspect engagement with the potentially profound shifts taking place in the life sciences may bolster this necessary challenge to our current politics while asking important questions of experimental practices in the laboratory. Page | 26 Page | 27 References Allen G (2011a) Early Intervention: The Next Steps. Aﾐ IﾐSWヮWﾐSWﾐデ ‘Wヮﾗヴデ デﾗ HWヴ M;ﾃWゲデ┞げゲ Government. London: Cabinet Office Allen G (2011b) Early Intervention: Smart Investment, Massive Savings. London: Cabinet Office Allen G and Duncan-Smith I (2008) Early Intervention: Good Parents, Great Kids, Better Citizens. London: The Centre for Social Justice/The Smith Institute. Bate A and Foster D (2017) Sure Start (England), House of Commons Library Briefing Paper No. 7257. London: House of Commons. Beasley C, Bacchi C (2007) Envisaging a new politics for an ethical future: Beyond trust, care and generosity に towards an ethic of social flesh Feminist Theory 8(3), 279-298 Beck S, Niewöhner J (2006) Somatographic Investigations Across Levels of Complexity. BioSocieties 1(2), 219-227 Begley S (2009) The Plastic Mind. London: Constable and Robinson. Belsey A (1986) けThe New Right, Social Order and Civil Libertiesげ in: Ruth Levitas (ed), The Ideology of the New Right. Cambridge: Polity Press. Blum L M and Fenton E R (2016) けMﾗデｴWヴｷﾐｪ ┘ｷデｴ ﾐW┌ヴﾗゲIｷWﾐIW ｷﾐ ; ﾐWﾗﾉｷHWヴ;ﾉ ;ｪWぎ CｴｷﾉS SｷゲﾗヴSWヴゲ ;ﾐS WﾏHﾗSｷWS Hヴ;ｷﾐゲげが ｷﾐぎ Käll L Folkmarson (ed) Bodies, Boundaries and Vulnerabilities: Interrogating Social, Cultural and Political Aspects of Embodiment. Springer. Broer T (2015) Targeting brains, producing responsibilities: The use of neuroscience within British social policy. Social Science & Medicine 132, 54-61 Page | 28 Bruer J T (1999) The Myth of the First Three Years. New York: The Free Press. Bruer J T (2011) Revisiting けThe Myth of the First Three Yearsげ Briefing Paper to a conference at the Centre for Parenting Culture Studies, University of Kent, UK, 13-14 September 2011. Butler J (2005) Precarious Life: The Powers of Mourning and Violence. Verso. Cameron D (2011) PヴｷﾏW MｷﾐｷゲデWヴげゲ Tヴﾗ┌HﾉWS F;ﾏｷﾉｷWゲ SヮWWIｴく LﾗﾐSﾗﾐぎ PヴｷﾏW MｷﾐｷゲデWヴげゲ Office. Cameron D (2016) PヴｷﾏW MｷﾐｷゲデWヴげゲ SヮWWIｴ ﾗﾐ LｷaW Cｴ;ﾐIWゲく LﾗﾐSﾗﾐぎ PヴｷﾏW MｷﾐｷゲデWヴげゲ OaaｷIWく Catley P and Claydon L (2015) The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales, Journal of Law and the Biosciences 2(3), 510に549. Clarke K (2006) けCｴｷﾉSｴﾗﾗSが ヮ;ヴWﾐデｷﾐｪ ;ﾐS W;ヴﾉ┞ ｷﾐデWヴ┗Wﾐデｷﾗﾐぎ A IヴｷデｷI;ﾉ W┝;ﾏｷﾐ;デｷﾗﾐ of the “┌ヴW “デ;ヴデ ﾐ;デｷﾗﾐ;ﾉ ヮヴﾗｪヴ;ﾏﾏWげが Critical Social Policy, 26(4): 699に721. Clinton H ふヱΓΓΑぶ け‘Wﾏ;ヴﾆゲ H┞ デｴW Fｷヴゲデ L;S┞げ, in: Remarks by the President and First Lady, White House Conference on Early Childhood Development and Learning. Washington: The White House. Available at: https://clintonwhitehouse3.archives.gov/WH/New/ECDC/Remarks.html Cohen O et al (2016) When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts, Psychological Science, 27(4), 549-562. Department for Work and Pensions (2012) Social Justice: Transforming Lives. London: The Stationary Office. DCLG (2012) Working with Troubled Families. London: DCLG. Page | 29 DCLG (2014) Estimating the number of families eligible for the Troubled Families Programme. London: DCLG. Dietz C (2018) Governing Legal Embodiment Feminist Legal Studies. Doidge N (2008) TｴW Bヴ;ｷﾐげゲ W;┞ ﾗa HW;ﾉｷﾐｪぎ SデﾗヴｷWゲ ﾗa ‘Wﾏ;ヴﾆ;HﾉW ‘WIﾗ┗WヴｷWゲ ;ﾐS Discoveries. London: Penguin. Dolinoy D C and Jirtle R L (2008) Environmental Epigenomics in Human Health and Disease Environmental and Molecular Mutagenesis 49(1): 4-8. Falk R (2003) けThe Gene に さA Concept in Tensionざげ in: Peter J Beurton, Raphael Falk, and Hans- Jrg Reinberger, (eds), The Concept of the Gene in Development and Evolution. Historical and Epistemological Perspectives (Cambridge: Cambridge University Press) 317-48. Farahany N A (2016) Neuroscience and behavioural genetics in US criminal law: an empirical analysis, Journal of Law and the Biosciences 2(3), 485-509. Featherstone B, Kate M and White S (2014) A marriage made in hell: early intervention meets child protection, British Journal of Social Work, 44(7), 1735-1749. Featherstone B, White S and Morris K (2014) Re-imaging Child Protection: Towards humane social work with families. Bristol: Policy Press. Fein E (2011) けInnocent Machines: Asperger's Syndrome and the Neurostructural Selfげ, in: Martyn Pickersgill and Ira Van Keulen (eds) Sociological Reflections on the Neurosciences, Advances in Medical Sociology, 13: 27に49. Page | 30 Fineman M (2000) Cracking the Foundational Myths: Independence, Autonomy, and Self Sufficiency Journal of Gender, Social Policy and the Law 8, 13. Fineman M (2008) The Vulnerable Subject: Anchoring Equality in the Human Condition Yale Journal of Law and Feminism 20(1), 1. Fineman M (2010) The Vulnerable Subject and the Responsive State Emory Law Journal 60(2), 251-275. Fineman M ふヲヰヱヲぶ ざEﾉSWヴﾉ┞ざ ;ゲ V┌ﾉﾐWヴ;HﾉWぎ ‘Wデｴｷﾐﾆｷﾐｪ デｴW N;デ┌ヴW ﾗa IﾐSｷ┗ｷS┌;ﾉ ;ﾐS “ﾗIｷWデ;ﾉ Responsibility Elder Law Review 17, 26. Fineman M (2013) Equality, Autonomy, and the Vulnerable Subject in Law and Politics, in: Martha Fineman and Anna Grear (eds) Vulnerability: Reflections on a New Ethical Foundation for Law and Politics. Surrey: Ashgate. Fineman M (2014) Vulnerability, Resilience, and LGBT Youth Temple Political & Civil Rights Law Review 23, 307 Fineman M (2015) Vulnerability and the Institution of Marriage: the evolution of plural parentage: Afterward Emory Law Journal 64, 2088 Fineman M ふヲヰヱΑぶ けIﾐデヴﾗS┌Iデｷﾗﾐげが ｷﾐぎ M;ヴデｴ; FｷﾐWﾏ;ﾐが Uﾉヴｷﾆ; AﾐSWヴゲゲﾗﾐ ;ﾐS Tｷデデｷ M;デデゲゲﾗﾐ (Eds) Privatization, Vulnerability and Social Responsibility: A comparative perspective. Abingdon: Routledge. Fineman M and Grear A (eds) (2013) Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, Surrey: Ashgate. Fleck L (1979) Genesis and development of a scientific fact, London: Chicago University Press Page | 31 Forde R A (2014) Risk Assessment in Parole Decisions: A Study of Life Sentence Prisoners in England and Wales. Unpublished PhD thesis available at: http://etheses.bham.ac.uk/5476/1/Forde14ForenPsyD.pdf Foucault M (1990) The history of sexuality. Volume 1, an Introduction. New York: Vintage Frederick A (2017) Risky Mothers and the Normalcy Project: Women with Disabilities Negotiate Scientific Motherhood, Gender and Society, 31(1), 74-95. Fujumura J ふヱΓΒΑぶ Cﾗﾐゲデヴ┌Iデｷﾐｪ けDﾗ-;HﾉWげ PヴﾗHﾉWﾏゲ ｷﾐ C;ﾐIWヴ ‘WゲW;ヴIｴぎ AヴデｷI┌ﾉ;デｷﾐｪ Alignment. Social Studies of Science 17(2), 257-293 Garlick S (2014) The Biopolitics of Masturbation: Masculinity, Complexity, and Security, Body & Society 20 (2), 44-67. Garrett P ふヲヰヱヵぶ WﾗヴSゲ ﾏ;デデWヴぎ SWIﾗﾐゲデヴ┌Iデｷﾐｪ さ┘Wﾉa;ヴW SWヮWﾐSWﾐI┞ざ ｷﾐ デｴW UKが Critical and Radical Social Work 3(3), 389-406. Gillies V, Edwards R and Horsley N (2017) Challenging the Politics of Early Intervention: Wｴﾗげゲ けゲ;┗ｷﾐｪげ IｴｷﾉSヴWﾐ ;ﾐS ┘ｴ┞い Bristol: Policy Press. Gillies V, Edwards R and Horsley N (2016) けBヴ;┗W ﾐW┘ Hヴ;ｷﾐゲぎ “ﾗIｷﾗﾉﾗｪ┞が a;ﾏｷﾉ┞ ;ﾐS デｴW ヮﾗﾉｷデｷIゲ ﾗa ﾆﾐﾗ┘ﾉWSｪWげ 64 219-237. Gustafson K S (2011) Cheating Welfare: Public Assistance and the Criminalization of Poverty. New York: New York University. Hair N L, Hanson J L, Wolfe B L and Pollak S D (2015) Association of Child Poverty, Brain Development, and Academic Achievement, JAMA Pediatrics 169(9), 822-829. Hall S (2011) The neoliberal revolution, Soundings 48, 9-27. http://etheses.bham.ac.uk/5476/1/Forde14ForenPsyD.pdf Page | 32 Hall W and Carter A ふヲヰヱンぶ けHﾗ┘ M;┞ NW┌ヴﾗゲIｷWﾐIW AaaWIデ デｴW W;┞ デｴ;デ デｴW Cヴｷﾏｷﾐ;ﾉ Cﾗ┌ヴデゲ DW;ﾉ ┘ｷデｴ ASSｷIデWS OaaWﾐSWヴゲいげが ｷﾐぎ Nicole A Vincent, (ed.) Neuroscience and Legal Responsibility. Oxford: Oxford University Press. Hansen K and Johnson A (2016) The Brain Over Binge Recover Guide. Camellia Publishing. Haraway D (2004) The Haraway Reader London: Routledge. Hayes M (1994) The New Right In Britain. London: Pluto Press. Helund M (2012), Epigenetic responsibility Medicine Studies 3(3), 171-183. Hood A and Phillips D (2015) Substantial cuts made, but biggest changes to the benefit system yet to come. London: Institute for Fiscal Studies. Hudson B (2003) Justice in the Risk Society. London: Sage. Hughes D A and Baylin J (2012) Brain-Based Parenting: The Neuroscience of Caregiving for Healthy Attachment. New York: W. W. Norton and Company. Karpin I (2016) Regulatory responses to the gendering of transgenerational harm Australian Feminist Studies 31(88): 139-53. Karpin I (2018) Vulnerability and the intergenerational transmission of psychosocial harm Emory Law Journal. Keller E F (2012) Genes, Genomes, and Genomics Biological Theory 6, 132-40. Keller E F (2014) From Gene Action to Reactive Genomes Journal of Physiology 592(11), 2423- 29. Kucharski R, Maleszka, J, Foret S, Maleszka R (2008) Nutritional Control of Reproductive Status in Honey Bees via DNA Methylation, Science 319, 1827-30. Page | 33 Latour B (1987) Science in Action: How to Follow Scientists and Engineers Through Society Cambridge MT: Harvard University Press. Levitas R ふヱΓΒヶぶ けIﾐデヴﾗS┌Iデｷﾗﾐぎ ISWﾗﾉﾗｪ┞ ;ﾐS デｴW NW┘ ‘ｷｪｴデげが ｷﾐ Ruth Levitas, (Ed) The Ideology of the New Right. Cambridge: Polity Press. Levitas R (2012) TｴWヴW ﾏ;┞ HW けデヴﾗ┌HﾉWげ ;ｴW;Sぎ ┘ｴ;デ ┘W ﾆﾐﾗ┘ ;Hﾗ┌デ デｴﾗゲW ヱヲヰがヰヰヰ けデヴﾗ┌HﾉWSげ families. Poverty and Social Exclusion in the UK, Policy Response Series No.3. Levitas R (2014ぶ Tヴﾗ┌HﾉWS F;ﾏｷﾉｷWゲげ ｷﾐ ; “ヮｷﾐく Poverty [online] Available at: http://www.poverty.ac.uk/sites/default/files/attachments/Troubled%20Families%20in%20a %20Spin.pdf Accessed 7 April 2018 Loi M, Del Savio L, Stupka, E (2013) Social Epigenetics and Equality of Opportunity Public Health Ethics 6(2), 142-53. Lowe P, Lee, E and Macvarish, J (2015) Growing better brains? Pregnancy and neuroscience discourses in English social and welfare policies, Health, Risk and Society 17(1), 15-29. Lowe P (2016) Reproductive Health and Maternal Sacrifice. London: Palgrave Macmillan. Lowenstein D H and Parent, J P (1999) Brain, Heal Thyself, Science 283(5405), 1126-1127. Macvarish J (2016) Neuroparenting: The Expert Invasion of Family Life. London: Palgrave Macmillan. Macvarish J, Lee E. and Lowe P ふヲヰヱヴぶ TｴW さFｷヴゲデ TｴヴWW YW;ヴゲざ Mﾗ┗WﾏWﾐデ ;ﾐS デｴW Iﾐa;ﾐデ Bヴ;ｷﾐぎ A Review of Critiques, Sociology Compass 8/6, 792-804. Manning E (2010) Always More than One: The Collectivity of a Life, Body and Society 16(1), 117-127. Marmott M (2005) The Status Syndrome, Bloomsbury Publishing. http://www.poverty.ac.uk/sites/default/files/attachments/Troubled%20Families%20in%20a%20Spin.pdf http://www.poverty.ac.uk/sites/default/files/attachments/Troubled%20Families%20in%20a%20Spin.pdf Page | 34 Meaney M (2001) Maternal Care, Gene Expression, and the Transmission of Individual Differences in Stress Reactivity Across Generations, Annual Review of Neuroscience 24, 1161- 192 Melhuish E and Hall D ふヲヰヰΑぶ けTｴW ヮﾗﾉｷI┞ H;Iﾆｪヴﾗ┌ﾐS デﾗ “┌ヴW “デ;ヴデげが ｷﾐぎ J;┞ BWﾉゲﾆ┞が J;Iケ┌WﾉｷﾐW Barnes and Edwards Melhuish (eds.) The National Evaluation of Sure Start. Bristol: Policy Press. Meloni M (2014) How biology became social, and what it means for social theory The Sociological Review 62, 593-614. Meloni M (2015) Epigenetics for the social sciences: Justice, embodiment, and inheritance in the postgenomic age New Genetics and Society 34(2), 125-151. Meurk C et al (2014) How is acceptance of the brain disease model of addiction related to A┌ゲデヴ;ﾉｷ;ﾐゲげ ;デデｷデ┌SWゲ デﾗ┘;ヴSゲ ;SSｷIデWS ｷﾐSｷ┗ｷS┌;ﾉゲ ;ﾐS デヴW;デﾏWﾐデゲ aﾗヴ ;SSｷIデｷﾗﾐい, BMC Psychiatry, 14, 1-10. Morse S J (2006) Brain Overclaim Syndrome: A Diagnostic Note, Ohio State Journal of Criminal Law 3, 397-412. Murphy A (2011) Corporeal Vulnerability and the New Humanisms, Hypatia 26(3), 575-590. Niewöhner J (2011) Epigenetics: Embedded Bodies and the Molecularisation of Biography and Milieu BioSocieties 6(3), 279-98. Nussbaum M (2011) Creating Capabilities. Harvard University Press. OげCﾗﾐﾐWﾉﾉ K (2016) Unequal Brains: Disability Discrimination Laws and Children with Challenging Behaviour, Medical Law Review 24(1), 76-98. OげM;ﾉﾉW┞ P (2004) Risk, Uncertainty and Government. London: The GlassHouse Press. Page | 35 Oliver M ふヱΓΒヱぶ けA NW┘ MﾗSWﾉ ｷﾐ デｴW “ﾗIｷ;ﾉ Wﾗヴﾆ ‘ﾗﾉW ｷﾐ ‘Wﾉ;デｷﾗﾐ デﾗ Dｷゲ;Hｷﾉｷデ┞ろが ｷﾐ J C;ﾏヮﾉｷﾐｪ (ed), The Handicapped Person: A New Perspective for Social Workers. RADAR Oliver M (1983) Social Work and Disabled People. Macmillan. Oliver M (2013) The Social Model of Disability: Thirty Years On, Disability and Society 28(7), 1024. Ortega F (2009) The Cerebral Subject and the Challenge of Neurodiversity Biosocieties 4(4), 425-445 Painter R, Osmond C, Gluckman P, Hanson M, Philips D, Roseboom T J (2008) Transgenerational Effects of Prenatal Exposure to he Dutch Famine on Neonatal Adiposity and Health in Later Life. British Journal of Obstetrics and Gynaecology 115, 1243-49. Papadopolous D (2011) The Imaginary of Plasticity: Neural Embodiment, Epigenetics and Ectommorphs. Sociological Review 59, 433. Pease K and Tseloni A (2014) Using Modelling to Predict and Prevent Victimization. London: Springer. Peters E (2012) I blame the mother: educating parents and the gendered nature of parenting orders. Gender and Education 24(1), 119-130. Pickersgill M et al (2013) Mapping the new molecular landscape: social dimensions of epigenetics. New Genetics and Society 32(4), 429-47. Pickersgill M (2014) けNeuroscience, epigenetics and the intergenerational transmission of social life: exploring expectations and engagementsげ Families, Relationships and Societies 3(3), 481-84. Page | 36 Pitmann C M and Karle E (2015) Rewire Your Anxious Brain: How to Use the Neuroscience of Fear to End Anxiety, Panic and Worry. Oakland: New Harbinger Publications. Richardson S (2015) けMaternal Bodies in the Postgenomic Order: Gender and the Explanatory Landscape of Epigeneticsくげ Iﾐ “;ヴah Richards and Hallam Stevens (eds) Postgenomics, Perspectives on Biology After the Genome, Duke University Press. Roberts R ふヲヰヱヰぶ けTｴW “ﾗIｷ;ﾉ Iﾏﾏﾗヴ;ﾉｷデ┞ ﾗa HW;ﾉデｴ ｷﾐ デｴW GWﾐW AｪWぎ ‘;IW Dｷゲ;Hｷﾉｷデ┞ ;ﾐS Inequalityげ Iﾐ Jﾗﾐ;デｴ;ﾐ MWデ┣ﾉ ;ﾐS Aﾐﾐ; Kｷヴﾆﾉ;ﾐS ふWSゲ) Against Health (NYU Press) Robbins R, McLaughlin, Banks C, Bellamy C and Thackray D ふヲヰヱヴぶ けDﾗﾏWゲデｷI ┗ｷﾗﾉWﾐIW ;ﾐS multi-;ｪWﾐI┞ ヴｷゲﾆ ;ゲゲWゲゲﾏWﾐデ IﾗﾐaWヴWﾐIWゲ ふMA‘ACゲぶぎ ; ゲIﾗヮｷﾐｪ ヴW┗ｷW┘げが The Journal of Adult Protection 16(6), 389-398. Romani M, Pistillo MP, Banelli B ふヲヰヱヵぶ けEﾐ┗ｷヴﾗﾐﾏWﾐデ;ﾉ WヮｷｪWﾐWデｷIゲぎ Cヴﾗゲゲヴﾗ;S HWデ┘WWﾐ ヮ┌HﾉｷI ｴW;ﾉデｴが ﾉｷaWゲデ┞ﾉWが ;ﾐS I;ﾐIWヴ ヮヴW┗Wﾐデｷﾗﾐげ BioMed Research International doi:587983 Rose N (2007), The Politics of Life Itself: Biomedicine, Power, and Subjectivity in the Twenty- First Century. Princeton: Princeton University Press. Rose N ふヲヰヱヰぶ さ“IヴWWﾐ ;ﾐS ｷﾐデWヴ┗WﾐWざぎ ｪﾗ┗Wヴﾐｷﾐｪ ヴｷゲﾆ┞ Hヴ;ｷﾐゲ. History of the Human Sciences 23(1), 79-105. Rose N and Abi-Rached J (2013) Neuro: The New Brain Sciences and the Management of the Mind. Princeton: Princeton University Press. Rose N and Abi-Rached J (2014) Governing through the Brain: Neuropolitics, Neuroscience and Subjectivity, Cambridge Anthropology 32(1), 3-23. Rose H and Rose S (2016) Can neuroscience change our minds? Cambridge: Polity Press. Page | 37 Rose S (2005) けPゲ┞IｴﾗIｷ┗ｷﾉｷゲWSげ ﾗヴ ; H;ﾐS ﾗa ﾐW┌ヴﾗIｴWﾏｷI;ﾉ ゲﾉ;┗Wゲ Times Higher Education [online] Available at: https://www.timeshighereducation.com/features/psychocivilised-or-a- band-of-neurochemical-slaves/194363.article Accessed 7 April 2018 Royal Society (2010) Brain Waves Module 4: Neurosciences and the Law. London: The Royal Society. Science and Technology Committee Oral Evidence: Evidence-based early-years intervention, Date. House of Commons C 506. Available at http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/sci ence-and-technology-committee/evidencebased-early-years-intervention/oral/79001.html Accessed 30 August 2018. Sen A ふヱΓΒヰぶ けEケ┌;ﾉｷデ┞ ﾗa Wｴ;デいげ Iﾐ Sterling McMurrin, Tanner Lectures on Human Values, Volume 1. Cambridge: Cambridge University Press. Smith G, Sylva K, Smith T, Sammons P and Omonigho A (2018) Stop Start. Survival, decline ﾗヴ Iﾉﾗゲ┌ヴWい CｴｷﾉSヴWﾐげゲ IWﾐデヴWゲ ｷﾐ Eﾐｪﾉ;ﾐSが ヲヰヱΒく London: The Sutton Trust. Vidal F (2009) Brainhood, Anthropological Figure of Modernity. Hist Human Sci 22, 5. Wall (2004)が Iゲ Yﾗ┌ヴ CｴｷﾉSげゲ Bヴ;ｷﾐ PﾗデWﾐデｷ;ﾉ M;┝ｷﾏｷゲWSい MﾗデｴWヴｷﾐｪ ｷﾐ ;ﾐ AｪW ﾗa NW┘ Bヴ;ｷﾐ Research. Atlantis 28(2), 41-50. Walsh C (2011), Youth Justice and Neuroscience: A Dual-Use Dilemma. British Journal of Criminology 51, 21-39. Wastell D and White S (2012) Blinded by neuroscience: social policy, the family and the infant brain, Family, Relationships and Societies 1(3), 397-414. Wastell D and White S (2017) Blinded by Science: The Social Implications of Epigenetics and Neuroscience. Bristol: Policy Press. https://www.timeshighereducation.com/features/psychocivilised-or-a-band-of-neurochemical-slaves/194363.article https://www.timeshighereducation.com/features/psychocivilised-or-a-band-of-neurochemical-slaves/194363.article http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/science-and-technology-committee/evidencebased-early-years-intervention/oral/79001.html http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/science-and-technology-committee/evidencebased-early-years-intervention/oral/79001.html Page | 38 Weaver I C G et al (2004) Epigenetic programming by maternal behavior. Nature Neuroscience 7(8), 847 ぐい Williams Z (2014) けIゲ ﾏｷゲ┌ゲWS ﾐW┌ヴﾗゲIｷWﾐIW SWaｷﾐｷﾐｪ W;ヴﾉ┞ ┞W;ヴゲ ;ﾐS IｴｷﾉS ヮヴﾗデWIデｷﾗﾐ ヮﾗﾉｷI┞いげが The Guardian 26th April 2014. Wilkinson and Pickett K (2011), The Spirit Level: Why Equality is Better for Everyone, London: Penguin. 
work_tpqfdya7afhuvg27w3a3ck4c5i	----	OP-IJTJ130026 53..74 The International Journal of Transitional Justice, Vol. 8, 2014, 53–74, doi:10.1093/ijtj/ijt024 Advance Access publication: 13 December 2013 Reassembling International Justice: The Making of ‘the Social’ in International Criminal Law and Transitional Justice Kirsten Campbell* Abstract1 This article examines the most recent shift in ongoing debates concerning the relation- ship between international criminal law and transitional justice, using the examples of international criminal prosecutions before the International Criminal Tribunal for the former Yugoslavia (ICTY) and transitional justice mechanisms in Bosnia and Herzegovina. It reframes the problematic relationship between the two fields by revisit- ing the important but underexplored concept of ‘the social’ that underpins these two very different models of international justice. The article draws on the work of Bruno Latour, who argues that we should study law by analysing how its practices construct ‘the social.’ Building on this approach, the article shows how international criminal law and transitional justice offer different ways of reassembling social relationships after conflict. While transitional justice seeks to reassemble a society in conflict through ‘justice’ processes, international criminal law seeks to make social ties through ‘law.’ The current shift in justice discourses reveals that what is ultimately at stake in these debates is the fundamental question of how international justice can reassemble ‘the social’ in more just forms after conflict. Keywords: international justice, Bosnia and Herzegovina, International Criminal Tribunal for the former Yugoslavia, Bruno Latour, postconflict reconstruction In June 2012, the International Criminal Court (ICC), the first permanent inter- national criminal court, handed down its first judgement. With this judgement, international criminal law has now established a crucial role in transitional con- texts. However, the impending closure of the ad hoc International Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) also indicates its evolving role in postconflict peace. Once again, international justice discourses are in * Senior Lecturer, Department of Sociology, Goldsmiths, University of London, UK. Email: k.campbell@gold.ac.uk 1 I would like to thank Suki Ali, David Bausor, David Oswell, Bev Skeggs and the IJTJ reviewers and editors for their helpful comments on earlier versions of this article. I would also like to acknow- ledge the support of the European Research Council for this research, as part of the Gender of Justice project (Grant No. 313626). ! The Author (2013). Published by Oxford University Press. All rights reserved. For Permissions, please email journals.permissions@oup.com at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from , http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ transition. 2 I argue that these ongoing shifts in international justice reveal the uneasy relationship between international criminal law and transitional justice. To reframe this relationship, it is necessary to reconsider the problematic but unproblematized concept of ‘the social’ that underpins these different models of international justice. To do this, I draw on the work of actor-network theorist Bruno Latour. Actor-network theory (ANT) offers a distinctively new approach to the study of how legal practices construct ‘the social.’ In particular, Latour’s study of law analyses how its particular practices assemble ‘society.’ Using the example of the ICTY’s prosecutions and of transitional justice mechanisms in Bosnia and Herzegovina, I develop an account of international justice as practices of association. I examine how international criminal law and transitional justice offer two very different ways of reassembling social associations during and after conflict. Building on this approach, I argue that what is ultimately at stake in these shifts in justice discourses is how law can reassemble ‘the social’ in more just forms. International Justice Discourses in Transition The 2004 publication of the UN’s report on transitional justice marked the emergence of a new set of ‘justice discourses’ that identified international criminal and transitional justice as central to conflict resolution and reconstruction. 3 The relationship between these two key forms of international justice, however, was both uncertain and uneasy. A decade later, debates concerning the role of international criminal law in transitional contexts continue to shape the fields of international criminal law and transitional justice. 4 However, they also continue to be in transition. In the field of international criminal law, these debates now centre upon the past ‘failure’ of the ad hoc Tribunals and the future ‘promise’ of the ICC for transitional justice. 5 The increasingly common view is that the Tribunals have been too ‘costly, inefficient, and ineffective’ in bringing justice to postconflict societies. 6 In contrast to these ‘failed’ experiments, the ICC is seen as exemplifying the future promise of international criminal law for transitional justice. 7 While some international lawyers caution against unrealistic aspirations, the 2 Christine Bell, Colm Campbell and Fionnuala Nı́ Aoláin, ‘Justice Discourses in Transition,’ Social and Legal Studies 13(3) (2004): 305–328. 3 ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ UN Doc. S/2004/616 (2004) (hereinafter ‘UN TJ Report 2004’); Bell et al., supra n 2. 4 United Nations, Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice (March 2010). 5 Carsten Stahn, ‘Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal Justice?’ Leiden Journal of International Law 25(2) (2012): 251–282. 6 Ralph Zacklin, ‘The Failings of Ad Hoc International Tribunals,’ Journal of International Criminal Justice 2(2) (2004): 544. 7 Ruti G. Teitel, ‘Transitional Justice Genealogy,’ Harvard Human Rights Journal 16 (2003): 69–94. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 54 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from . - - - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ predominant response has been ‘enthusiasm’ resting on ‘narratives’ of the triumph of the rule of law and the end of impunity for the crimes of war. 8 While the symbolic function of the ICC in punishing international crimes is seemingly clear, its role in conflict prevention and reconstruction has been more contentious. Nevertheless, international criminal law is generally seen as provid- ing the legal framework for transitional justice, which sets out international legal substantive and procedural norms for the prosecution of international crimes at the national and international levels. 9 The ICC is seen as the key enforcement mechanism for these norms. Accordingly, it is typically attributed with the tran- sitional functions of determining guilt and punishing crimes, ensuring interna- tional and national compliance with these norms and restoring international peace and security. 10 In contrast, similar debates in the field of transitional justice centre upon the relationship between international criminal law and national transitional justice. These arguments focus upon whether international criminal law should form part of broader integrated national programmes of transitional justice (and, if so, how and in what form). This ‘new landscape of transitional justice’ emphasizes the importance of developing a wider array of transitional justice mechanisms and processes for postconflict social reconstruction. 11 In this approach, transitional justice strategies should not involve the imposition of a ‘one size fits all’ model of international criminal law. For this reason, whether (and how) to integrate inter- national criminal law into national and regional transitional justice programmes becomes the central issue. Against ideas of ‘international criminal law’ externally imposed by the interna- tional community, ‘transitional justice has itself undergone a shift towards the local.’ 12 This broader shift situates international criminal law in the context of local legal cultures and of national needs and capacities, emphasizing its relation- ship to other forms of local justice, as well as to national legal systems. 13 What is contentious is the nature of that relationship. The argument predominantly turns on the question of how to reconcile ‘global norms with local agency’ 8 Frédéric Mégret, ‘Three Dangers for the International Criminal Court,’ Finnish Yearbook of International Law 12 (2001): 195–247. 9 See, Kai Ambos, ‘The Legal Framework of Transitional Justice,’ and Christine Bell, ‘The “New Law” of Transitional Justice,’ in Building a Future on Peace and Justice, ed. Kai Ambos, Judith Large and Marieke Wierda (Berlin: Springer, 2009). 10 Florian Jessberger and Julia Geneuss, ‘The Many Faces of the International Criminal Court,’ Journal of International Criminal Justice 10(5) (2012): 1081–1094. 11 Naomi Roht-Arriaza, ‘The New Landscape of Transitional Justice,’ in Transitional Justice in the Twenty-First Century, ed. Naomi Roht-Arriaza and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006). 12 Rosalind Shaw and Lars Waldorf, ‘Introduction: Localising Transitional Justice,’ in Localizing Transitional Justice: Interventions and Priorities after Mass Violence, ed. Rosalind Shaw and Lars Waldorf, with Pierre Hazan (Stanford, CA: Stanford University Press, 2010), 4. 13 Kieran McEvoy and Lorna McGregor, eds., Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford: Hart, 2008). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 55 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ and processes. 14 Broader debates concerning the aims of transitional justice also shape these ideas about the use of international criminal law in national transitional processes. At issue is whether the aim of transitional justice is to end conflict and move to a stable and peaceful society (a ‘liberal’ peacebuilding project) or to address the ‘roots of violence’ and thereby transform postconflict societies (a project of social transformation). 15 These debates reveal an important and necessary transition in international justice discourses, which appear increasingly to attribute limited functions to international criminal law and to give a wider role to national transitional justice processes in conflict resolution and reconstruction. 16 The impending closure of the ICTY and the ‘return of the ownership of the justice process to the States in the region’ 17 would seem to exemplify these ‘lessons learnt’ about the role of inter- national criminal law in transition. However, if we take the ICTY as a contem- porary exemplar of such transitions in international justice discourses, it becomes possible to see that the shifts also congeal three fundamental and problematic positions in the two fields. The first problematic position is that international criminal law offers transitional justice a legal framework and an enforcement mechanism. 18 However, the ICTY did not criminalize the ‘large-scale past abuses’ or ‘human rights violations’ that transitional justice initiatives commonly describe as their central normative concerns. 19 Instead, the ICTY applied the substantive legal rules of customary international humanitarian law, which only criminalizes war crimes, genocide and crimes against humanity. Moreover, the ICTY was established because of the absence of appropriate domestic and international courts and applied customary humanitarian law because these were the only rules beyond doubt binding on all states. 20 Accordingly, international criminal law does not necessarily provide transitional justice with truly universal norms or enforce global sanctions for their breach. The second problematic position counterposes international criminal law to national transitional justice. For example, UN Rule of Law Officer Shelley Inglis has noted that a key ‘lesson learnt’ from the ICTY is that the Tribunal ‘failed’ as an international criminal law institution to engage with ‘the local national 14 Diane F. Orentlicher, ‘ “Settling Accounts” Revisited: Reconciling Global Norms with Local Agency,’ International Journal of Transitional Justice 1(1) (2007): 10–22. 15 Lisa J. Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework,’ International Journal of Transitional Justice 2(3) (2008): 331–355; Lars Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs,’ Social and Legal Studies 21(2) (2012): 171–186. 16 ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ UN Doc. S/2011/634 (2011). 17 Ibid., 22. 18 Luis Moreno Ocampo, ‘Building a Future on Peace and Justice,’ in Building a Future on Peace and Justice, ed. Kai Ambos, Judith Large and Marieke Wierda (Berlin: Springer, 2009). 19 UN TJ Report 2004, supra n 3. 20 ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808,’ UN Doc. S/25704 (April 1993). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 56 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from - - - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ perspective.’ 21 However, the ICTY also revealed the problematic nature of such ideas of the international and the national. For example, there is no single ‘local national perspective’ upon the ICTY. Instead, national ‘successor states,’ as well as local ‘ethnic communities’ between and within these states, have divergent no- tions regarding what transitional justice should be. As Chandra Lekha Sriram describes, ‘processes of post-conflict justice are frequent sites of hybridity, in which the interaction of local, national, and international actors shape decisions about accountability in ways that evolve over time.’ 22 These range from the impact of European Union accession upon successor states to the current funding crisis within the UN. For this reason, to counterpose international criminal justice to national transitional justice does not capture the complex role of international justice in postconflict societies. The third problematic position is that the transitional role of international criminal law is to change an unjust society by, for example, establishing an authoritative historical record or condemning criminal conduct. 23 It is unclear, however, whether it is the nation, the state or ‘international society’ that is in transition. For example, in the case of the former Yugoslavia, it is all three. The political, legal and social entity of ‘Yugoslavia’ no longer existed. Moreover, the ICTY was established to reconstruct the ‘peace and security’ of the international society of states, rather than that of the Yugoslav state or society. 24 This elision raises, in turn, ‘more fundamental questions about what exactly transitional just- ice is transiting “from” and “to.”’ 25 ‘Transitional justice’ implies a shift from an unjust society (war, authoritarian regimes) to a just society (peace, democracy). However, there are the more fundamental questions concerning the nature of justice that these ideas of transition presume, and which shape the transitional role of international criminal law. The ICTY shows the difficulty of answering this axiological problem. For example, it offers different (and sometimes conflicting) models of justice that range from the classical juridical ideas of procedure and punishment to the more recent transitional aims of social reconciliation and reconstruction. 26 What counts as justice in transition is never simply ‘given’ or ‘evident.’ Instead, it reflects changing values and societies. For these reasons, this position does not adequately address the complicated role of international criminal law in conflict resolution and reconstruction. 21 Shelley Inglis, ‘UN Capacity Building: Basing Efforts on Nationally Assessed Goals, Policies and Needs,’ in Assessing the Legacy of the ICTY, ed. Richard H. Steinberg (Leiden: Martinus Nijhoff Publishers, 2011), 155. 22 Chandra Lekha Sriram, ‘Post-Conflict Justice and Hybridity in Peacebuilding: Resistance or Cooptation?’ in Hybrid Forms of Peace: From Everyday Agency to Post-Liberalism, ed. Oliver P. Richmond and Audra Mitchell (London: Palgrave Macmillan, 2011), 58. 23 UN TJ Report 2004, supra n 3. 24 UN Security Council Resolution 827 of 1992. 25 Christine Bell and Catherine O’Rourke, ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay,’ International Journal of Transitional Justice 1(1) (2007): 23–44. 26 Kirsten Campbell, ‘The Trauma of Justice: Sexual Violence, Crimes Against Humanity and the International Criminal Tribunal for the Former Yugoslavia,’ Social and Legal Studies 13(3) (2004): 329–350. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 57 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from , ' - - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ The ongoing transitions in international justice discourses congeal these three problematic positions concerning the relationship between international criminal law and transitional justice. Accordingly, the positions operate as an obstacle to reconfiguring this relationship in more productive ways. In order to build a better account of the role of international criminal law in conflict and postconflict transitions, it is necessary to develop another theoretical strategy. Reassembling ‘the Social’ in International Justice Making ‘the Social’ in the Practice of Law To reframe the relationship between international criminal law and transitional justice, I examine a fourth fundamental concept that is usually taken for granted in these international justice discourses. This is the concept of ‘the social.’ Ideas of social action and association are central to these discourses because they portray international criminal justice and transitional justice as aiming to regulate forms of violence, which is a fundamentally social activity, as well as to change societies in conflict, similarly a fundamentally social aim. As Ruti Teitel points out, tran- sitional criminal justice attempts to change not only individual social actors but also their broader society. 27 While ‘the social’ is therefore central to these international justice discourses, it remains largely unexamined in the field. 28 An exception to this is a group of researchers working within the Marxist or Durkheimian traditions at the inter- section of the fields of transitional justice and international criminal law. 29 However, the use of these traditions in international justice discourses too often assumes a social totality, whether having existed in the past or coming into existence in the future. 30 These approaches can mask the difficulty of captur- ing the role of international criminal justice in transitional contexts, in which mass crimes were intended to destroy the social collective, and criminal law at- tempts to remake it. 31 I turn to another tradition in social theory, that of ANT, and in particular the work of Latour. Latour offers what he calls the ‘sociology of associations.’ 32 This social theory does not assume that law and society are given phenomena that then act upon each other, but rather asks how actions and associations operate to make ‘the legal’ and ‘the social.’ Latour sets out his theory of law in The Making of 27 Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2001). 28 Stephen Parmentier, ‘The Missing Link: Criminological Perspectives on Dealing with the Past and Transitional Justice,’ in What Is Criminology?, ed. Mary Bosworth and Carolyn Hoyle (Oxford: Oxford University Press, 2011). 29 These include Mark Drumbl, Mark Osiel, Robert Fine, David Hirsh and John Hagan and Ron Levi. 30 Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (Oxford: Oxford University Press, 2007). 31 Mark J. Osiel, Mass Atrocity, Collective Memory, and the Law (Brunswick, NJ: Transaction Publishers, 1997). 32 Latour, supra n 30. Latour emphasizes that his work on law is not conventional ANT but a study of reassembling the social. Paolo Landri and Bruno Latour, ‘Introducing “La Fabrique du Droit,” Technoscienza 2(2) (2011): 55–67. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 58 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ Law, a detailed ethnographic study of legal practices in the French administrative court. 33 While his work has not been the subject of detailed consideration in the international criminal law and transitional justice fields, it has become increas- ingly influential in international legal research. It has been taken up as part of the ‘new legal realism,’ and the transnational ethnographic study of legal practices in transitional justice is seen as a particularly promising strand of this approach. 34 Transitional justice scholarship might find this ANT approach most immediately sympathetic. However, as Andrew Barry cautions, the field of ANT cannot simply be applied to an existing disciplinary field, instead requiring a ‘translation’ be- tween the fields that unsettles both. 35 In this case, that unsettling involves building an ANT account of international justice, which can reveal another ap- proach to understanding the role of international criminal justice in transitional contexts. Latour insists that our analysis should begin not with ‘the social’ as the basis for explaining the relationship between law and society, but rather with how ‘the social’ is made and remade through networks of association. 36 This idea of networks will resonate with that of transnational advocacy networks in the field of human rights. 37 However, the aim of an ANT approach is not to describe the network as an already existing social structure. It aims to understand how this network is made through the building of connections between persons and things. Accordingly, the Latourian model of law shifts from using Marxist and Durkheimian sociologies, with their emphasis upon the social, structure and subject, to the sociology of Gabriel Tarde, with its emphasis upon process, movement and association. 38 It seeks to move away from these established traditions in sociolegal research ‘through which “society was treated as an existing and tangible domain, allowed from a neat division of “law” from “society.” ’ 39 This neat division produces what Teitel describes as the central conceptual prob- lem of any account of international criminal law and transitional justice. This is how to account for the transitional paradox that law is part of both social reproduction and transformation. 40 33 Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat (London: Polity, 2010). 34 Sally Engle Merry, ‘New Legal Realism and the Ethnography of Transnational Law,’ Law and Social Inquiry 31(4) (2006): 975–996. 35 Andrew Barry, ‘The Translation Zone: Between Actor-Network Theory and International Relations,’ Millennium 41(3) (2013): 413–429. 36 Latour, supra n 30. 37 Thomas Risse and Kathryn Sikkink, ‘The Socialisation of International Human Rights Norms,’ in The Power of Human Rights: International Norms and Domestic Change, ed. Thomas Risse, Stephen Ropp and Kathryn Sikkink (Cambridge: Cambridge University Press, 1999). 38 David Toews, ‘The New Tarde: Sociology after the End of the Social Theory,’ Theory, Culture and Society 20(5) (2003): 81–98. See also, Latour, supra n 30. 39 Ron Levi and Marianna Valverde, ‘Studying Law by Association: Bruno Latour Goes to the Conseil d’Etat,’ Law and Social Inquiry 33(3) (2008): 806. 40 Teitel, supra n 27. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 59 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from - - - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ Latour offers an alternative model, where it’s not only that law, for instance, is unexplainable by the influence social forces exert over it; and it’s not even true to say that law has to explain in turn what society is, since there is no society to be explained. 41 Latour’s ‘sociology of associations’ describes ‘society’ not as substance but as the actions (movements, displacements, translations, mediations and so on) that make social connections. 42 Critically, one can only act by association with others. For Latour, those others are both human and nonhuman entities. 43 As Latour explains, in such a view, law, for instance, should not be seen as what should be explained by ‘social structure’ in addition to its inner logic; on the contrary, its inner logic may explain the features of what makes an association last longer and extend wider. 44 This approach conceives law as a ‘situated, material practice that ties a whole range of heterogeneous phenomena in a certain specific way.’ 45 The idea of practice in this context indicates more than the common divide in sociolegal theory between ‘law on the books’ and ‘law in action.’ Rather, it derives from the idea of the making of the social world through action. For Latour, this focus upon practice raises the question of what gives certain actions their ‘legal’ quality. Latour understands law as a network of heterogeneous associations that build ‘the social.’ Law is a ‘vehicle, a movement of aggregation,’ that assembles entities through particular forms of semiotic and material associations. Latour argues that law ‘circulate[s] throughout the landscape to associate entities in a legal way.’ 46 Law consists of chains of these associations, since ‘making these connec- tions, linking up these elements, weaving the social: all this is law itself.’ 47 For this reason, legality is better understood as a process, in which particular prac- tices organize social relations. These practices associate actants, which are both human (lawyers, defendants, witnesses) and things (court buildings, records, material evidence). For Latour, ‘law’ describes particular and peculiar kinds of associations, namely those that construct the vinculum juris, the chain or tie of legal obligation or re- lation. 48 Law is a specific way of composing associations in particular forms, which are made of relations that assemble ‘the social.’ 49 He identifies specific categories of practice as legal, which he describes as ‘modes’ or ‘regimes’ 41 Latour, supra n 33 at 239. 42 Latour, supra n 30. 43 Bruno Latour, ‘On Interobjectivity,’ Mind, Culture, and Activity 3(4) (1996): 228–245. 44 Latour, supra n 30 at 7. 45 Latour, supra n 33 at x. 46 Latour, supra n 30 at 239. 47 Latour, supra n 33 at 261. 48 Ibid. 49 Ibid. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 60 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from legality - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ of practice. These consist of three key sets of legal practices. The first set is the practices of the legal claim, which initiate the legal process. The second consists of the practices of the legal institution. The third consists of practices of legal reasoning, which include legal judgements and statements. These legal chains operate as a flexible series of links that connect actants through legal practices. They fasten to, and secure, claims and decisions. They operate in a social space as a mesh of interlinked chains of legal practices. This mesh is not above ‘the social,’ but forms a net of support for the social assemblage by holding its elements together. In this way, they work as the reinforcing structure of the assemblage. The mesh spreads through time and space, constituting its networks through chains of associations or relations, which are assembled through legal practices. The Social Associations of International Justice How, then, do international criminal law and transitional justice operate as forms of association that assemble ‘the social’ in particular ways? This question reframes the current problematic relationship between the two fields. Reconfiguring Latour’s account of law, I examine how international criminal law and transi- tional justice offer distinctive practices that reassemble society during and after conflict in different ways. To build this account, I examine ICTY criminal prosecutions and Bosnian transitional justice mechanisms, as they exemplify the uneasy and uncertain relationship between international criminal law and transitional justice. Equally important, they currently exemplify the most developed forms of the different international justice practices of international criminal justice and transitional justice. However, the ANT approach does not assume the categories of international and national as explanations of different forms of justice. Rather, it asks how different practices make these kinds of social association. Following this approach, I next examine how ICTY cases and Bosnian mechanisms operate as distinctive practices of association that ‘assemble’ the social in different forms. International Criminal Law and the Constitution of International Social Bonds The ICTY has come to exemplify the unclear and uneasy role of international criminal law in transitional contexts. However, it has also come to exemplify the operation of international criminal law as a form of international justice. While established with limited purpose and jurisdiction, the ICTY is now widely regarded as inaugurating the field of contemporary international criminal law. It has led the development of substantive and procedural law, as well as inter- national criminal institutions, most notably the ICC. 50 These characteristics 50 Ruti G. Teitel, Humanity’s Law (Oxford: Oxford University Press, 2011). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 61 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ make its prosecutions ideal for studying how international criminal justice constructs particular forms of ‘the social.’ What are the specific practices of the ICTY that assemble a particular form of social association? Following Latour, we can group these practices into four key categories. The first is the set of practices that transform a social dispute into a legal dispute, such that the conflict becomes a matter subject to legal determin- ation. In Latourian terms, these practices articulate controversies (disputes or disagreements) as legal matters of concern (causes or claims). 51 In the case of the ICTY, this consists of the classification of armed conflict as subject to international criminal regulation. This ‘penal law regime’ criminalizes serious violations of humanitarian law and imposes individual criminal responsibility for breaches. 52 This can be a legal question, which concerns whether an applicable body of law exists that prohibits this conduct, such as customary international law or the ICTY Statute. It can also be a factual question, which concerns whether the law criminalizes that particular form of collective violence, as can be seen in the distinct rules governing the conduct of international and internal armed conflict in Articles 2 and 3 of the ICTY Statute. 53 The second set of practices makes a matter of legal concern into the appropriate form of a legal claim. In Latour’s terms, these practices translate the controversy into a legal statement. They connect legal relations with actors and actions. Latour describes how in law ‘paths are traced across the world, weaving numerous rela- tions between claimants, legislative acts, decrees and Codes . . . They are traversed by “les moyens de droit” (legal arguments).’ 54 In the case of the ICTY, these practices transmute persons and things into legal subjects, such as classifying persons as legitimate military targets or hospitals as prohibited civilian objects. They classify actions into categories of criminal conduct, for example in terms of the elements of the crime set out in substantive international criminal law. These practices translate the highly complex networks of persons and things of the armed conflict in the former Yugoslavia into the material facts and legal issues brought before the Tribunal. For example, these practices interweave the Office of the Prosecutor in The Hague, which investigates criminal conduct under the ICTY Statute, and the North Atlantic Treaty Organization-led Stabilization Force arresting accused war criminals in Bosnia, operating under the UN Charter. The third set of practices is adjudicative. It consists of the trial proceedings that construct ‘credible facts’ and ‘legal norms’ and determine the claim. Latour compares laboratory experiments and legal proceedings as processes for con- structing facts, pointing to their shared origins in an empiricist common law. 55 51 Latour, supra n 33. 52 Prosecutor v. Kunarac, Kovac and Vukovic, Cases No. IT-96-23-PT and IT-96-23/1-PT, Judgement, Trial Chamber (22 February 2001), para. 470 (hereinafter ‘Kunarac’). 53 Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford: Oxford University Press, 2005). 54 Latour, supra n 33 at 233. 55 Ibid. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 62 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from Judgement http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ Because of his focus on administrative hearings, rather than criminal trial pro- ceedings, Latour does not adequately draw out this comparison. However, like the laboratory, the ICTY courtroom is the site of fact and norm construction. The legal proceedings that take place in that courtroom seek to establish the truth of legal claims, just as the scientific experiment aims to establish a scientific claim. These practices range from presentation of witness evidence to the use of legal argument. Each party seeks to establish its legal claim using these practices to enrol human actants, such as witnesses and lawyers, as well as nonhuman actants, such as The Hague court buildings or the ICTY judicial database which tran- scribes their evidence and argument. Finally, the fourth set of practices involves judging these claims. As Latour describes, ‘a case has to be concluded.’ 56 For him, judgement is fundamental to law as a mode of enunciation. 57 In the case of a criminal court such as the ICTY, these practices of judging conclude the case by determining fact, law, liability and punishment. These range from the use of legal doctrine and reasoning to their inscription in the formal legal text of the judgement. They include practices of determining legal findings, which serve as the axiological foundation of the legal determination of responsibility and punishment. They also involve fact-finding practices, which serve as the epistemic foundation of the legal determination of ‘fact.’ These practices settle the ‘controversy’ of the legal claim by passing final judgement upon the claims of the parties to justice before the law. The example of the ICTY shows how international criminal justice is a set of particular practices that make legal associations. Take, for example, Prosecutor v. Kunarac, which the ICTY identifies as a leading sexual violence case. 58 This case transformed sexual violence committed in the war in the former Yugoslavia into a matter subject to international legal determination. The OTP translated this matter of legal concern into a legal claim, namely, charges of sexual enslavement. The trial proceedings were the site of fact and norm construction, in which each party sought to support the claim, whether by the prosecution’s presentation of victim-witnesses at trial or the defence appellant arguments that there was a legal error in the interpretation of the elements of the crime. 59 Legal judgement deter- mined that these victim-witnesses suffered sexual enslavement and found the accused criminally responsible. 60 These practices operate both spatially and temporally to assemble entities in new legal relations to each other. The survivors of sexual violence in Foča became witnesses testifying many years later in a court- room in The Hague and the ‘Bosnian Serb’ soldiers became legally responsible for their treatment of these ‘Muslim’ civilians and were sentenced to prison in Norway and Germany. These practices assembled social associations by ‘making 56 Ibid., 221. 57 Ibid. 58 International Criminal Tribunal for the former Yugoslavia, ‘Landmark Cases,’ http://www.icty. org/sid/10314 (accessed 23 October 2013). 59 Kunarac, Judgement, Appeals Chamber, 2002. 60 Kunarac, Judgement, Trial Chamber, 2001. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 63 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from judgement http://www.icty.org/sid/10314 http://www.icty.org/sid/10314 http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ these connections, linking up these elements, weaving the social’ and working to associate entities in a legal way, as Latour describes. These ‘legal’ associations connected together to form the chain or tie of legal obligation or relation. 61 By establishing ties of legal obligation, these practices of international criminal justice assembled ‘the social’ in law. These chains of legal obligation created new social associations in law, while simultaneously extending those associations across a social space. In international criminal justice, such chains of legal obligations create new ‘international’ social associations. They are international rather than domestic obligations because they prosecute acts and actors in a situation of collective violence that is considered to be the subject of international legal regulation. They are also international in the sense that even though the trials take place in the Netherlands, they use international legal norms to define international crimes and conduct proceedings according to international legal standards. ICTY jurisprudence clearly establishes that it applies international legal norms that derive from the positive law and values of the international legal order. It adjudicates breaches of these norms according to accepted practices of evidencing facts as well as conventions of legal argumentation accepted as such within the legal culture of international criminal justice. 62 In this way, these legal practices create an international form of social association. International criminal justice, such as that practiced by the ICTY, offers chains of legal obligation that assemble ‘the social’ in law. It operates as a particular mode of creating ‘the social’ by using the practices of criminal justice to create the chain of international legal obligation. In international criminal justice, this sociality is assembled in law, but it does not create a new society as such. Rather, the legal chains only create new social associations, and with them chains of legal obligations. As ICTY President Judge Patrick Robinson describes, ‘one lesson learnt from our experiences is that the core mandate of an interna- tional criminal court that is to investigate, prosecute, and adjudicate grave breaches of international humanitarian law is very clear.’ 63 These prosecutions aim to create stable legal associations that assemble ‘the social’ in law. However, they assemble a minimal form of ‘the social,’ which only consists of new legal relations. This minimal form of social association only exists insofar as networks of legal practices support it. These chains fasten to, and secure, claims and deci- sions in the ICTY. However, these new legal associations do not create a social ‘totality.’ Instead, they create new social ties in a specific legal assemblage. Because these stable legal associations assemble ‘the social’ in law, they only carry this assemblage as far as the legal chains extend. For example, the ICTY’s 61 Latour, supra n 33. 62 Kirsten Campbell, ‘The Making of Global Legal Culture and International Criminal Law,’ Leiden Journal of International Law 26(1) (2013): 155–172. 63 Patrick Robinson, ‘Creating a Legacy that Supports Sustainable Rule of Law in the Region,’ in Assessing the Legacy of the ICTY, ed. Richard H. Steinberg (Leiden: Martinus Nijhoff Publishers, 2011), 23. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 64 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from . - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ legal chains do not extend to the successor states of Bosnia, Croatia, Serbia or Slovenia, which have created their own legal assemblages of claims, courts and judgements. Moreover, although the ICTY prosecutions enforce international legal norms, they do not necessarily create enforceable legal relations between these states as participants in the international legal order (as the Genocide decision of the International Court of Justice demonstrates). 64 Where the legal associations of the successor states utilize the practices of international criminal law, such as the application of international customary legal norms developed by the ICTY, the chains of legal obligation become longer. Where they do not, the chains remain short. The ICTY therefore creates this ‘international’ form of social association in the ‘local’ legal space of The Hague. These short chains of legal obligation create minimal social ties. For this reason, international criminal justice constructs a ‘small’ social assemblage, which it seeks to extend through chains of legal association that are long in time and space. Ultimately, these prosecutions aim to create new social associations in law and to extend these associations to carry those social connections across global space and time because they are constructed as universal legal ties. Nevertheless, they are short chains of associ- ation, which create short rather than long networks of people and things. In these prosecutions, the chains do not extend far beyond the legal association of these claims and decisions in the ICTY courtroom. The transitional challenge is how to extend these ties of responsibility into the former Yugoslavia in particular and to spaces of collective violence in general. To do this requires the invention of supporting legal practices. For example, a key problem for the ICTY has been how to extend its legal chains of obligation, to enrol more actants and to create new forms of association, and so to generate new forms of ‘the social’ in the ‘region.’ The ICTY itself puts this problem succinctly: In view of the international nature of the Tribunal and its physical distance from the communities affected by the crimes under its jurisdiction, a serious outreach effort was undertaken to make justice rendered in the Tribunal’s courtrooms seen in its natural constituency – the former Yugoslavia. 65 The Tribunal sought to remake ‘the social’ of the former Yugoslavia by construct- ing new chains of legal obligation that could ‘assemble’ a postconflict region. These legal chains attempt to build a postconflict sociality. With the ICTY’s cases, these chains of legal obligation have been too short and weak to properly reassemble a postconflict society as such. With the impending closure of the ICTY, and the problem of its ‘legacy’ in the region, the Tribunal is again attempt- ing to extend and sustain the legal chains of obligation it has worked so hard to create. As these chains of international legal obligation are short and this minimal 64 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement (26 February 2007). 65 International Criminal Tribunal for the former Yugoslavia, ‘Outreach,’ http://www.icty.org/ sections/Outreach (accessed 23 October 2013). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 65 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://www.icty.org/sections/Outreach http://www.icty.org/sections/Outreach http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ form of social association operates within a given legal space (in this case, the ICTY), the Tribunal’s legal associations require other chains of social associations, created by other actants and actions, to extend across time and space. Transitional Justice and the Making of the Postconflict Social In contrast to the ICTY, Bosnia and Herzegovina is a social space saturated by contemporary transitional justice practices that are a hybrid of international and national elements and of formal and informal processes. As such, postconflict Bosnia exemplifies contemporary transitional justice. Although Bosnia may appear to be a straightforward case of national transitional justice, in actuality international transitional processes created the Bosnian nation-state. These tran- sitional processes operate at international, regional, national and local levels and range from the internationalized tribunal of the War Crimes Chamber (WCC) to civil society initiatives of local victims’ associations. 66 They include formal legal processes, such as ongoing prosecutions in state and cantonal courts, as well as informal justice processes, such as recent initiatives to establish the Women’s Court for the Crimes of the former Yugoslavia. 67 Bosnia thus exemplifies the ‘full range’ of transitional justice processes and mechanisms described in UN policy. These transitional practices in Bosnia consist of particular forms of association that seek to reassemble social relationships during and after conflict. However, because Latour’s work does not engage with transitional justice as such, it is necessary to develop a new ANT account of what kinds of transitional practices reassemble ‘the social.’ Rama Mani’s classic work can serve as a useful basis for developing this account. She identifies the three categories of legal, rectificatory and distributive justice in postconflict peacebuilding. 68 However, peacebuilding and transitional justice mechanisms are not equivalent, and it is not possible simply to apply Mani’s typology to the transitional context of Bosnia. 69 Instead, it is necessary to adapt the categories in order to develop a new typology of transitional justice practices as legal, criminal, reparative and transformative. The first category of transitional practices is legal justice. Following Mani, these practices aim to (re)construct the rule of law. This category includes what Teitel calls administrative and constitutional justice. These ‘rule of law’ practices include the rebuilding of the legal framework of the state, as well as the legal system itself. 70 The practices range from international recognition of the postconflict state to the extensive (but problematic) institutional reforms, vetting and 66 See, UN Development Programme in Bosnia and Herzegovina, http://www.undp.ba/index. aspx?PID=7&RID=772 (accessed 23 October 2013). 67 Adriana Zaharijević, ‘On Trial at the Women’s Court: Gender Violence, Justice and Citizenship,’ Citizenship in Southeast Europe, 19 December 2012, http://www.citsee.eu/citsee-story/trial- women%E2%80%99s-court-gender-violence-justice-and-citizenship (accessed 23 October 2013). 68 Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity, 2002). 69 Waldorf, supra n 15. Mani acknowledges these ideas need to be developed in the light of empirical practice, and that these justice mechanisms are shaped by their postconflict contexts. 70 Teitel, supra n 27. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 66 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from . , http://www.undp.ba/index.aspx?PID=7&RID=772 http://www.undp.ba/index.aspx?PID=7&RID=772 http://www.citsee.eu/citsee-story/trial-women%E2%80%99s-court-gender-violence-justice-and-citizenship http://www.citsee.eu/citsee-story/trial-women%E2%80%99s-court-gender-violence-justice-and-citizenship http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ dismissals undertaken in postwar Bosnia. 71 These practices emerged with the complex process of state recognition during the war in 1992 and the establish- ment of a postconflict constitution and system of government under interna- tional administration under the Dayton Peace Agreement in 1994. 72 These rule of law practices continue to be integral to the transitional Bosnian state, which is still grappling with constitutional, legal and institutional reform in the context of continuing administration by the Office of the High Representative and future European Union accession. 73 In Latourian terms, these practices aim to assemble the nation-state as a ‘social aggregate,’ in which rule of law practices work as a social tie. They associate multiple actants, connecting them in a series of particu- lar and stable associations that build the nation-state. 74 The second category of transitional practices is criminal justice. Bosnian war crimes have been prosecuted at the international level before the ICTY, at the state level in the WCC after its establishment in 2005 and at the entity and local levels in the cantonal and district courts. 75 With the impending closure of the ICTY, the prosecution of war crimes will now take place in Bosnia. These crimes are prosecuted as ‘international’ crimes under the criminal codes of Bosnia and Herzegovina of 2003 and the prewar Socialist Federal Republic of Yugoslavia of 1976 or as ‘ordinary’ crimes under domestic criminal codes, and are heard before the WCC or before entity and cantonal courts. 76 These prosecutions are also subject to European human rights norms. 77 As the example of sexual violence prosecutions shows, these proceedings do not uniformly apply international legal norms to define these crimes, prosecute these crimes according to international legal standards or apply consistent national legal norms across Bosnia. 78 However, they do apply substantive criminal law, use criminal trial procedure, judge criminal liability and determine penal sanctions across the nation-state. These Bosnian prosecutions all use particular forms of criminal justice practices. As we have seen in the case of the ICTY prosecutions, they make the 71 Jakob Finci, ‘Lustration and Vetting Process in Bosnian and Herzegovina,’ in Lustration and Consolidation of Democracy and the Rule of Law in Central and Eastern Europe, ed. And–elko Milardović and Vladimı́ra Dvořáková (Zagreb: Political Science Research Centre, 2007). 72 Sumanatra Bose, Bosnia after Dayton: Nationalist Partition and International Intervention (London: Hurst, 2002). 73 See, Timothy Donais, ‘Power Politics and the Rule of Law in Post-Dayton Bosnia,’ Studies in Social Justice 7(2) (2013): 189–210. 74 Latour, supra n 30. 75 See, Olga Martin-Ortega, ‘Prosecuting War Crimes at Home: Lessons from the War Crimes Chamber in the State Court of Bosnia and Herzegovina,’ International Criminal Law Review 12(4) (2012): 589–628. 76 Organization for Security and Co-operation in Europe, Delivering Justice in Bosnia and Herzegovina (2011). My thanks to Jasenka Ferizović for clarification of this point. 77 Maktouf and Damjanović v. Bosnia and Herzegovina (application nos. 2312/08 and 34179/08), Grand Chamber, European Court of Human Rights (18 July 2013). 78 For further discussion, see, Gorana Mlinarević, Jakob Čaušević and Jasmina Čaušević, Prosecution of Wartime Sexualized Violence at the Court of Bosnia and Herzegovina (Sarajevo: UN Women, 2012). My thanks to Gorana Mlinarević for drawing my attention to this report and to the European Court of Human Rights decision. See also, TRIAL, The Situation of Women Victims of Rape or Other Forms of Sexual Violence during the War in Bosnia and Herzegovina (May 2011). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 67 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from all - - http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ conduct into a matter of legal concern, articulate that matter of concern as a crime, adjudicate those criminal charges through trial proceedings and determine those claims by legal judgement upon criminal culpability and punishment. In Latourian terms, these are practices of legal association. Mani describes such prosecutions for ‘gross human rights violations, war crimes and genocide’ as ‘rectificatory justice.’ For her, this broad category of ‘processes of reckoning’ for direct violence during conflict also includes truth commissions, lustration and memorialization. 79 However, it is necessary to acknowledge that criminal prosecutions have a distinctive transitional role, as Teitel argues. Departing from Teitel, I suggest this role derives from the specific form of social association in criminal law, rather than any transitional qualities of law as such. 80 These forms of social association tie together actants through chains of legal obligations of criminal justice. The third category of transitional justice practices is reparative and includes reparations, memorialization, truth seeking and reconciliation processes. These practices range from the formal restitution of property led by the UN High Commissioner for Refugees and the Office of the High Representative in 1998 to the civil society-led initiative in 2008 to establish a regional Reconciliation Commission (RECOM) and the memorialization policy developed under the Transitional Justice Strategy in 2012, led by the Bosnian state and the UN Development Programme. 81 These form a distinctive set of nonlegal pro- cesses that provide redress for the injustices of violence, which Mani includes in ‘rectificatory justice.’ I argue, however, that the idea of ‘reparative justice’ bet- ter captures these practices as it does not suggest that they aim to provide redress or reckoning as an end in itself. Rather, it emphasizes their attempts to repair or rebuild social assemblages. It does not imply that these practices aim to restore broken social networks to their previous forms of association, but rather that they aim to reassemble a collective. The fourth category of transitional practices aims to transform postconflict society by addressing the structural and systemic injustices that caused the con- flict. 82 One example is the Women’s Court for the Crimes of the former Yugoslavia. This regional initiative of women’s organizations seeks to address the structural shaping of the war and to situate the violence of war in the context of past and present social violence, such as economic and gender violence. 83 79 Mani, supra n 68 at 87. In the Bosnian context, lustration is not usually described in terms of reckoning or punishment, but in terms of rule of law issues. For this reason, I include it in the category of legal justice. 80 For this reason, I do not follow Teitel in calling these practices transitional criminal justice. See, Teitel, supra n 27. 81 See, UN Development Programme in Bosnia and Herzegovina, Access to Justice: Facing the Past and Building Confidence for the Future (2009); UN Development Programme in Bosnia and Herzegovina, Looking Forward, Looking Back (2012). 82 Mani, supra n 68. 83 For an overview of this initiative, see, Maja Šoštarić, War Victims and Gender-Sensitive Truth, Justice, Reparations and Nonrecurrence in Bosnia and Herzegovina (Utrecht: Impunity Watch, 2012). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 68 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from s http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ This new approach links postconflict justice to ‘societal transformation’ that does not sustain the ‘dependence and subordination’ that existed prior to conflict or which its violence produces. 84 While Mani calls this ‘distributive justice,’ the term ‘transformative justice’ is more appropriate because it captures how these prac- tices aim to assemble ‘the social’ in radically new and transformative ways. These four categories of transitional justice practices use different forms of semiotic and material practices to make new social associations. The first characteristic they share is that they are transitional associations. They aim to assemble entities in new transitional relations to each other. Transitional prac- tices thus intend to build more than legal chains of responsibility; they attempt to make new transitional associations that can serve as the building blocks of a postconflict society. For example, memorialization has been a highly divisive practice in Bosnia that has predominantly taken the form of ‘communal’ recol- lection or destruction. 85 The recent bombing in Mostar of the (Bosniak- associated) Bosnian Army memorial is only one such example. 86 However, there is currently an attempt to devise transitional practices of memorialization. The BiH TJ Strategy Expert Report characterizes transitional memorialization as a practice of ‘truth-telling’ that records the historical truth of the conflict in a public space. It claims that ‘truth-telling’ can operate as a form of repara- tive justice, which can acknowledge past crimes and hence rebuild social relationships. 87 Transitional memorialization is seen as an important element of the strategy, which is now developing a pilot project in Brčko District. 88 When operating as a communal practice, memorialization is seen as solidifying ‘ethnic community.’ As a transitional justice practice, it aims to transform the social associations of ethnic division into social associations of ‘peace.’ The second characteristic of these transitional justice practices is that, unlike international criminal prosecutions, they seek to change society as a whole and build a new postconflict one. To reassemble ‘the social’ in this way requires a ‘full range of processes and mechanisms,’ running from criminal prosecutions to oral history projects. These practices seek to do more than change specific communities in a particular place, such as the Brčko memorialization project. Instead, they aim to reassemble a society in conflict as a society in peace, so that this pilot project becomes a model for transitional memorialization across Bosnia. 84 Susan Harris-Rimmer, ‘Sexing the Subject of Transitional Justice,’ Australian Feminist Law Journal 32 (2010): 123–147. 85 Janine Clark, ‘Reconciliation through Remembrance: War Memorials and the Victims of Vukovar,’ International Journal of Transitional Justice 7(1) (2012): 116–135. 86 Denis Dzidic, ‘Bosnia Officials Condemn War Memorial Blast,’ Balkan Insight, 15 January 2013, http://www.balkaninsight.com/en/article/mostar-memorial-attack-condemned (accessed 23 October 2013). 87 UNDP Bosnia, supra n 81. 88 See, UN Development Programme in Bosnia and Herzegovina, ‘Consultations on Truth-Telling and Memorialisation in the Brcko District of Bosnia and Herzegovina,’ 12 February 2013, http://www.undp.org/content/bosnia_and_herzegovina/en/home/presscenter/articles/2013/02/ 12/consultations-on-truth-telling-and-memorialisation-in-the-brcko-district-of-bosnia-and- herzegovina/ (accessed 23 October 2013). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 69 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from - - http://www.balkaninsight.com/en/article/mostar-memorial-attack-condemned http://www.undp.org/content/bosnia_and_herzegovina/en/home/presscenter/articles/2013/02/12/consultations-on-truth-telling-and-memorialisation-in-the-brcko-district-of-bosnia-and-herzegovina/ http://www.undp.org/content/bosnia_and_herzegovina/en/home/presscenter/articles/2013/02/12/consultations-on-truth-telling-and-memorialisation-in-the-brcko-district-of-bosnia-and-herzegovina/ http://www.undp.org/content/bosnia_and_herzegovina/en/home/presscenter/articles/2013/02/12/consultations-on-truth-telling-and-memorialisation-in-the-brcko-district-of-bosnia-and-herzegovina/ http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ As such, these practices aim to reassemble ‘the social’ as a collective whole. Nevertheless, the dominant transitional form of this collectivity is the bounded nation-state. Following Latour, the postconflict nation-state is not a preexist- ing entity but a collectivity that needs to be made in time and space by enroll- ing a multiplicity of actants in a multiplicity of networks. All such transitional practices seek to assemble that complex collectivity, the postconflict society. However, their dominant mode of (re)creating the social is to assemble it as a nation-state. Transitional justice is also a particular mode of creating ‘the social.’ It uses distinctive practices to create new social associations. However, in contrast to the legal practices of international criminal justice, transitional justice operates to build more than chains of legal association. Rather, it has the ambitious task of building a new postconflict society that explicitly reconstructs former social divisions so as to build a new social collectivity across time and space. In Latourian terms, these transitional chains of social association attempt to make action at a distance possible. They attempt to build the stronger and denser chains of social association necessary to assembling large collectivities. However, as opposed to the universal ties of international legal obligation, the dominant mode of creating ‘the social’ in these transitional practices is to build compara- tively short chains of social association across the bounded time and space of the nation-state. This mode of social association requires durable and dense chains of tran- sitional practices that are sufficiently strong to build a large social assemblage. To sustain this large collectivity, these new transitional chains of social asso- ciation must be robust enough to endure across space and time. For example, they will ultimately construct, or not, the connection between the international judge in the Sarajevo court and the Bosnian Serb defendant being tried before him or her. In Latour’s terms, these practices build associations of human and nonhuman actants that are essential to the construction of this new transi- tional assemblage of ‘the social.’ 89 They attempt to build new chains of social associations, which can be longer or shorter or can be part of wider or smaller networks. The most effective practices assemble a new postconflict sociality by extending these associations and sustaining them through time and space. If international criminal justice is a ‘minimum’ form of social association, then transitional justice is a ‘maximum’ form of social assemblage. All four categories of transitional practices attempt to reassemble ‘the social’ as such in a stable and durable form. Reassembling International Justice The current transition in international justice discourses questions the role of international criminal law in transitional societies. My ANT approach suggests 89 Latour, supra n 30. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 70 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ that this question presumes that international criminal law and transitional justice are preexisting entities, rather than examining how they are modes of social association. Instead, pace Latour, the question is how to identify ‘the associations that have rendered some state of affairs solid and durable.’ 90 Developing this approach, we can see how international criminal law and tran- sitional justice operate as modes of action that make facts, objects, networks and collectives. They create weaker or stronger associations, construct longer or shorter networks and build minimal or maximal forms of postconflict social association. In empirical terms, these practices may fail to assemble new collect- ives. They may not be able to enrol sufficient human and nonhuman actors and resources. They may build connections to other networks, which then use them to create collective conflict or violence. However, in analytic terms, both international criminal law and transitional justice offer different practices of assembling social associations after conflict, which attempt to make these collectives solid and durable. These two modes of creating social association use different practices of asso- ciation, which operate as distinct modes of connection between actants. 91 International criminal law seeks to make social ties through international crim- inal justice practices, while transitional justice seeks to reassemble a society in conflict through legal, criminal, reparative and distributive justice practices. These are distinctive practices that produce social associations in minimal and maximal forms. International criminal law assembles ‘the social’ in law by creat- ing chains of legal obligation. These chains create new legal associations, but not a new collective as such. They are ‘short’ because they extend only as far as legal practices do. However, international criminal law seeks to extend these chains globally, because its practices construct international legal obligations. In contrast, transitional justice aims to assemble postconflict collectives. These social ties need to be more extensive and denser because transitional justice practices aim to reassemble a large social association, the nation-state. However, they do not have to extend as far as those of international criminal law because they aim to build a limited and bounded social space. To build more stable and solid postconflict collectives therefore requires linking these two modes of reassembling ‘the social.’ This involves multiply- ing and extending connections between the stable but short legal associations of international criminal law and the more unstable but dense ties of transitional justice practices in order to assemble minimal and maximal postconflict collectives. To do this, international criminal justice practices need to be made into longer chains of association and attached to the denser and more extensive ties of transitional justice practices. Transitional justice practices also need to attach to the new international legal obligations and settlement of collective 90 Ibid., 93. 91 Bruno Latour, An Inquiry into Modes of Existence: An Anthropology of the Moderns (Cambridge, MA: Harvard University Press, 2013). International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 71 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ violence in international criminal justice. In Latour’s terms, this involves under- taking the work of enrolling actants and resources that can build networks and so assemble postconflict collectives. 92 An example of this labour can be seen in the WCC. Like the ICTY, the WCC uses particular practices of international criminal law to make legal associations. These legal chains bring entities into new relations of international legal obligation to each other. So, for example, the WCC operates as a new form of social association. This involves passing new laws defining international crimes, constructing courtrooms to international standards and conducting trial proceedings. These chains of legal association then connect to others, creating networks between judges from the US and witnesses from Foča, from the Sarajevo court to the district and cantonal courts of the Bosnian entities and from the judicial institution to the donor countries of the European Union. The WCC is a hybrid site that assembles a multiplicity of international and national legal and political networks through its social associations. It produces short chains of legal obligation that create ‘the social’ in law, which it seeks to extend through time and space through the building of legal networks of actors and actions across the Bosnian nation-state. Therefore, an important strategy in reassembling postconflict collectives is extending these legal chains of social association in transitional space and time. This requires recognizing the hybridity of international criminal justice and connecting this social assemblage to other transitional chains of social associ- ation. An important example of this process is the Court Support Network, which aimed to ‘integrate the mission of the Court into the wider Bosnian community.’ 93 Alex Jeffrey’s important study of this network shows that the policy of building connections between court processes and community groups . . . has not only assisted in the process, but has brought new spaces of justice into being through education programmes, transnational connections, and innovative forms political participation. 94 These ‘soft’ justice practices (as opposed to the ‘hard’ justice practices of inter- national criminal law) work to extend the short legal chain of obligation (thereby demonstrating their imbrication, as Jeffrey suggests). These chains of social association can then become longer and attach to wider transitional networks, thus making the chain of legal association denser and more durable in its movement through social space and time. This can sustain these legal chains of obligation so that they can become an integral element of the transitional assembling of new postconflict collectives. 92 See, Bruno Latour, Science in Action: How to Follow Scientists and Engineers through Society (Cambridge, MA: Harvard University Press, 1988). 93 Alex Jeffrey, ‘The Political Geographies of Transitional Justice,’ Transactions of the Institute of British Geographers 36(3) (2011): 352. 94 Ibid., 349. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 72 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ A second important strategy involves connecting transitional practices to inter- national criminal justice practices. The settlement of conflict by international crim- inal justice practices constitutes certain forms of ‘the social’ (rather than others) by virtue of the kinds of chains of legal obligations it builds. These are international obligations because they prosecute acts and actors in a situation of collective vio- lence that is considered to be the subject of international legal regulation. They use international legal norms to define these international crimes, and prosecute these crimes according to international legal standards. The importance of these inter- national legal chains of obligation to the assemblage of postconflict collectives is revealed by sexual violence prosecutions in Bosnia. These legal ties can create a new legal subject (the victim as the possessor of the legal right to sexual autonomy) that exists in new legal relations (sexual violence in war as prohibited conduct) to other legal subjects (the perpetrator as the bearer of criminal responsibility). However, the failure to construct these legal obligations across the Bosnian nation-state has entailed that such conduct is not necessarily characterized as an international crime, the victim does not possess the right to sexual autonomy or the perpetrator does not suffer appropriate punishment for the crime. 95 To address this failure to build postconflict collectives that include these legal associations, it is necessary to con- nect international criminal justice practices to the legal and criminal justice prac- tices of transitional justice. These minimal social ties of international criminal justice are crucial elements of reassembling collectives that do not simply reproduce the injustices of conflict. In this mode of making ‘the social,’ international criminal justice can link to transformative justice practices. For Latour, law is fundamentally conservative, since the legal settlement of disputes sustains (rather than disrupts) the existing order. 96 However, this is not a necessary condition of such a legal settlement, or its only form. It can also create new matters of concern, claims, adjudication and judgement. This is law at its most inventive. 97 In this transformative mode of social association, international justice involves the invention of a new settlement for claims of injustice, which can then produce a new chain of legal obligation. This legal chain would construct the connection between claims to injustice and the collectivities that produced them. In this way, law can translate new claims to injustice into legal concerns and inscribe these new injustices into the legal rules symbolizing harms, thereby changing that naming of wrongs. It can construct new credible facts and original epistemic norms for determining a claim. Finally, it can develop new norms of judgement and justice. For this reason, the invention of new forms of legal association in international criminal justice is crucial for inventing new forms of transitional justice. 95 See, TRIAL, supra n 78; Amnesty International, ‘Whose Justice?’ The Women of Bosnia and Herzegovina Are Still Waiting (2009); Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina, Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes Processing from 2005 to 2010 (2011). 96 Latour, supra n 33. 97 Ibid. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 The Making of ‘the Social’ in International Criminal Law and Transitional Justice 73 at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ Both these strategies require reassembling international justice, with the inven- tion of new practices and new collectives. Some claims and claimants are more persuasive than others because international justice is not flat, neutral or equal. For this reason, it is necessary to undertake counting in participants and issues who have not managed or are not likely to succeed in articulating their concerns, or whose modes of articulation indicate a politics that is ‘imperceptible’ within prevalent ways of understanding. 98 The challenge is to identify how international justice can be invented and remain inventive in transitional contexts so that it can ‘count in’ claims and participants. This involves a process of creating new justice practices, and hence inventing new forms of association. These innovations have the capacity to create alternative forms of association and novel forms of ‘the social’ by offering a new settlement of collective violence. This sociology of legal associations shows how the divergent practices of inter- national criminal justice and transitional justice construct different forms of ‘the social.’ In international criminal law, the short legal chains of obligation create minimal social ties, assembling ‘the social’ within law. In contrast, transitional justice practices create maximal social associations, with the aim of reassembling a society as a whole. This ANT account reveals two fundamental challenges for international justice in transitional contexts. The first is that international crim- inal justice needs to invent new legal practices that can construct more just legal chains of obligation. This involves the invention of legal practices that include more participants and issues, tie actants together in more equal ways and build more egalitarian assemblages of ‘the social’ in law. Without undertaking this task of inventing new claims of injustice, fresh forms of adjudication and novel prac- tices of judgement, international criminal law cannot offer new settlements of collective violence. The second task is to construct a relationship between the legal chains of obligation of international criminal law and the chains of social asso- ciation of transitional justice. This requires extending and multiplying legal chains of obligation through time and space, making them into longer chains of association and connecting these chains to transitional networks that aim to reassemble ‘the social.’ However, it also requires connecting transitional justice practices to the legal obligations of international criminal justice. This involves the construction of new international legal associations, which can diffract bounded and communitarian (national, ethnic) transitional associations. These new legal obligations can rebuild these nation-state assemblages through the multiplication of new global legal ties. Ultimately, the ICC must meet these challenges of reassembling international justice if it is to extend its networks beyond The Hague. Only then can it fully contribute to reassembling just collec- tivities in conflict and postconflict transitions. 98 Maria Puig de la Bellacasa, ‘Matters of Care in Technoscience: Assembling Neglected Things,’ Social Studies of Science 41(1) (2011): 94. International Journal of Transitional Justice, Vol. 8, 2014, 53–74 74 K. Campbell at G oldsm iths C ollege on M arch 4, 2014 http://ijtj.oxfordjournals.org/ D ow nloaded from http://ijtj.oxfordjournals.org/ http://ijtj.oxfordjournals.org/ 
work_tqap2br74bf5jpspdzunkdqvja	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221736270 Params is empty 221736270 exception Params is empty 2021/04/06-03:20:34 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221736270 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:34 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_tqb7dk5cbrcchg4axv6y5joabq	----	Durham Research Online Deposited in DRO: 06 February 2018 Version of attached �le: Accepted Version Peer-review status of attached �le: Peer-reviewed Citation for published item: McGlynn, Clare and Westmarland, Nicole (2019) 'Kaleidoscopic justice : sexual violence and victim-survivors' perceptions of justice.', Social and legal studies., 28 (2). pp. 179-201. Further information on publisher's website: https://doi.org/10.1177/0964663918761200 Publisher's copyright statement: This article is distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 License (http://www.creativecommons.org/licenses/by-nc/4.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as speci�ed on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage). Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro�t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 https://dro.dur.ac.uk https://www.dur.ac.uk https://doi.org/10.1177/0964663918761200 http://dro.dur.ac.uk/24047/ https://dro.dur.ac.uk/policies/usepolicy.pdf https://dro.dur.ac.uk forthcoming in Social and Legal Studies 1 Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perceptions of Justice Clare McGlynn and Nicole Westmarland Durham University* Abstract This article proposes a more multifaceted way of thinking about victim-survivors’ perceptions of justice; what we have termed ‘kaleidoscopic justice’. Developed from an empirical investigation with twenty victim-survivors of sexual violence, kaleidoscopic justice understands justice as a constantly shifting pattern; justice constantly refracted through new experiences or understandings; justice as an ever-evolving, nuanced and lived experience. Within this framework, a number of justice themes emerged, namely justice as consequences, recognition, dignity, voice, prevention and connectedness. This approach develops current understandings, in particular by emphasising the fluidity of justice, as well as the centrality of prevention and connectedness in sexual violence survivors’ understandings of justice. We suggest that it is only by better understanding victim-survivor perspectives on justice, and embedding the concept of kaleidoscopic justice, that we can begin to address the sexual violence ‘justice gap’. Introduction Securing justice for victim-survivors is the rallying cry from politicians, campaigners, scholars and the public around the world as we all work towards ending sexual violence. Consequently, recent decades have seen an extensive range of law and policy interventions designed to address what is commonly known as the sexual violence ‘justice gap’. But the gap persists, substantiated by a constant stream of reports and studies (Kelly, 2005; Temkin and Krahe, 2008; Lonsway and Archambault, 2012; Hohl and Stanko, 2015). In this article, we suggest that one of the reasons why the sexual violence ‘justice gap’ remains is because we have yet to fully understand the justice interests of victim-survivors of sexual violence. Only when we appreciate, and then act on, how victim-survivors themselves conceptualise justice will we begin to address the failings of current approaches and - most importantly – be able to envision new ways of securing justice. Accordingly, we undertook this study, the first in the UK, and one of few internationally, to investigate sexual violence victim-survivors’ understandings of justice. Utilizing an empirical methodology, we undertook workshops and follow-up interviews with twenty victim-survivors of sexual violence, including those who had not engaged with the conventional criminal justice system. What emerged is a different way of thinking about justice from the perspective of victim-survivors that we have termed ‘kaleidoscopic justice’. This is justice as a constantly shifting pattern, justice constantly refracted through new experiences or understandings; an ever-evolving, lived experience. Within this framework, a number of key themes emerged, namely justice as consequences, recognition, dignity, voice, * We would like to acknowledge the strength and openness of the women who participated in this research project and to thank them for their contributions. We also appreciate the support of a number of organisations which worked with us on this project and to support the women involved. In addition, many thanks are due to Judith Evans and Julia Downes for their research assistance, and to Fiona Vera-Gray, Hildur Fjóla Antonsdottir and Ian Ward and the anonymous reviewers who gave valuable insights on earlier drafts of this article. This research was first presented at Leuven University in 2014 and we have subsequently benefitted from many helpful comments following presentations at the universities of Monash, Lund, Edinburgh, Leicester and the Institute of Advanced Study at Durham University. forthcoming in Social and Legal Studies 2 prevention and connectedness. This approach advances our current understandings of justice from the perspective of sexual violence victim-survivors. In particular, it emphasises the fluidity of justice, as well as the centrality of prevention and connectedness in sexual violence survivors’ perceptions of justice. It also develops the idea of the ‘justice paradox’: of the simultaneous search for justice, but recognition of justice as an impossibility. In part one, we develop the overarching idea of kaleidoscopic justice, setting it in the context of common assumptions about justice and particularly the conventional criminal justice system. Part two outlines our empirical methodology and sample. In part three, we examine the justice themes which surfaced in the study and which together embody kaleidoscopic justice. The final part concludes by emphasising that kaleidoscopic justice is the precursor, the conceptual underpinning, for the vital work of making real a commitment to justice from the perspective of victim-survivors. Sexual Violence and Conceptions of Justice Justice in the context of sexual violence is most commonly equated with ‘positive outcomes’ (usually a conviction and punitive sentence) from conventional criminal justice systems.1 Conventional here is used synonymously with state-run criminal justice systems, premised on procedures and mechanisms of formal legality in a clearly structured pattern, from police investigations, to prosecutions, to judgment and punishment. This is justice as a linear, one- directional, process: there is a clear beginning, the ‘event’ or ‘incident’ which sparks off the search for justice, followed by an understood sequence of processes through the criminal justice system. There is also a finite end. Justice is dichotomous: you either get it or you don’t; a conviction or not. Further, in conventional justice processes, and in most debates over what justice means, the person defining justice is rarely (if ever) the victim-survivor of the harm or abuse (Goodmark, 2015). This conventional, linear, dichotomous and incident-based approach to justice represents the dominant understanding of justice in public and policy discourse around sexual violence. It frames reform debates and is culturally embedded as to what justice is and should be. As Dianne Martin has argued, this dominant approach ‘equates recognition of harm with length of prison sentence’ (Martin, 1998: 170). The effect is that ‘criminal justice responses which are not punitive are seen to be unresponsive to victims’/women’s harms’ (Martin, 1998: 170). This ‘taken-for-granted’ assumption of what constitutes justice has become what Asher Flynn describes as a ‘recognisable rape narrative’ (Flynn, 2015: 94). It does not represent all justice processes, even within the conventional criminal justice systems. There is no strict separation between conventional and other systems; we fully recognise the long- standing view that formal and informal approaches are not dichotomous but on a continuum (Daly, 2017; Matthews, 1988). Indeed, there is a growing range of ‘innovative’ mechanisms and processes that seek to dilute and/or transform conventional criminal justice systems (Joyce-Wojtas and Keenan, 2016). However, the more innovative approaches are commonly viewed as exceptions, on the margins, and often subject to considerable challenge. As a result, reform debates continue to take place in the shadow of the conventional criminal justice system, with its understandings of justice dominating debate. Nonetheless, there have been important attempts to shift debate, to focus better on victim-survivors’ perspectives of justice. A significant body of work, across a wide range of disciplines, has developed detailed and sophisticated understandings of victims’ interests, outlining implications for law, policy and practice (Zehr, 1990; Strang, 2002; Wolhuter, 2009; Fileborn, 2016). Within the context of sexual violence, there are many studies forthcoming in Social and Legal Studies 3 examining the development of innovative and alternative justice mechanisms, such as restorative justice and transitional justice (Daly, 2006; Ptacek, 2010; McGlynn et al, 2012; Keenan, 2014; Henry, 2015; Fineman and Zinstagg, 2013). Looking specifically at victim- survivors’ justice interests, Kathleen Daly has categorised the empirical and conceptual literature identifying the justice interests of victim-survivors, covering a variety of offence types (not just sexual or gendered violence) and in a range of fora (Daly, 2017). Distilling these findings, Daly suggests that the main justice interests of victim-survivors are participation, voice, validation, vindication and ‘offender accountability-taking responsibility’ (Daly, 2017). This work provides a valuable foundation from which to consider what might be the specific interests of sexual violence victim-survivors, in the particular context of individual experiences in western liberal democracies. A small number of empirical studies have engaged with this question, taking a step back from the specificities of a particular process or intervention, to examine more open ideas of justice with victim-survivors. Two foundational studies, undertaken in the early 2000s, addressed this topic. In the US, Judith Lewis Herman interviewed twenty victim-survivors of domestic and sexual violence regarding their efforts to seek redress (Herman, 2005). As Herman describes, her informants’ view of justice was ‘neither restorative nor retributive in the conventional sense’ (Herman, 2005: 597). Their vision ‘combined both elements in the service of healing a damaged relationship, not between the victim and offender but between the victim and his or her community’ (Herman, 2005: 597). In New Zealand, Shirley Jülich interviewed twenty-one adult survivors of child sexual abuse regarding their perceptions of justice (2006). Jülich found that a common theme was a desire to ‘tell their story in a safe forum’, address underlying causes of offending and while victim-survivors wanted to de- emphasize punishment, they still wanted consequences for the perpetrator (Jülich, 2006: 129- 132). More recent work in Australia has developed these earlier studies. Robyn Holder examined the justice perspectives of twenty-seven women survivors of domestic abuse who had been through the criminal justice system (Holder, 2015). Holder found that conventional theories of justice ‘were insufficient to capture the complexity’ of the ‘contextualised thinking’ underpinning their understandings of justice (Holder, 2015: 205). Justice was a ‘vibrant experience’ that was ‘layered, nuanced and contingent’ (Holder, 2015: 195). Further, the understandings of justice went beyond conventionally expected ‘personal and private’ gains or interests, but expanded to involve value judgments about the civic role of justice processes Holder, 2015: 195). While Holder’s study focussed on domestic abuse survivors, Haley Clark, also in Australia, interviewed twenty-two sexual assault victim-survivors (including four men) in 2009-2010, two-thirds having engaged with the conventional criminal justice system (Clark, 2015). She found that meanings of justice had ‘considerable variation’ for her participants, and challenge conventional understandings of justice which privilege universal preferences over ‘meaningful responses’ for victim-survivors of sexual violence (Clark, 2015: 32-33). Taken together, these studies reveal that victim-survivors’ understandings of justice were neither driven by, nor reflective of, conventional criminal justice. What stands out is the emphasis on complexity and nuance; on the variability of the justice interests; and on the challenge to commonly held assumptions that victim-survivors seek personal justice and punitive outcomes. This overview also reveals that empirical work with victim-survivors of sexual violence about ideas of justice beyond experiences of specific mechanisms or processes is limited, mostly undertaken over ten years ago and none with victim-survivors in the UK. forthcoming in Social and Legal Studies 4 Investigating Justice Perspectives of Victim-Survivors of Sexual Violence In seeking to understand justice in the context of sexual violence, the experiences and insights of victim-survivors must be foundational. As Frank Haldemann suggests, engaging victim-survivors is a matter of ‘moral and political urgency’ when considering ideas of justice (Haldemann, 2008: 678). Similarly, Judith Shklar argues that no ‘theory of either justice or injustice can be complete if it does not take into account the subjective sense of injustice’ (Shklar, 1990: 49). In this work, we are not putting forward a ‘pure’ or ‘ideal’ definition or theory of justice (Sen 2009). As Amartya Sen makes clear, an ‘approach to justice can be both entirely acceptable in theory and eminently usable in practice, even without its being able to identify the demands of justice in perfect societies’ (Sen, 2009: 401). Similarly, Holder explains this form of work as being part of what Skitka has termed ‘real world justice research’ (Skitka, 2009: Holder, 2015: 205): namely, research understanding how people describe justice as part of everyday social interactions. Accordingly, we designed a project seeking to encourage an open dialogue on justice and its meanings. Our approach was developed from previous projects working with survivors of violence and abuse, particularly the desire to frame research with survivors in a more positive and empowering light. In particular, a previous project involving one of the authors developed an ethical approach to working with survivors termed a Positive Empowerment Approach (PEA) (Downes, Kelly and Westmarland, 2014). PEA positions victim-survivors as active agents and stakeholders in generating new knowledge on subjects with their experiential expertise. The current project built upon this ethical approach and piloted it within an educational arena: we have termed this approach Educational Empowerment Research (Westmarland, McGlynn and Evans 2014). A participant information poster was circulated that invited women survivors of sexual violence to one of two workshops to hear an introductory talk from two academics about theories of justice and then to share their own views on justice and sexual violence. Potential participants were also informed that this was part of a research study and that the data would be used for academic presentations and papers. The invitation asked them if they would like to participate in the workshop only, the workshop and a follow up interview, or just an interview. The workshops consisted of the facilitators giving a thirty minute presentation on ideas of punishment, as one core aspect of conventional notions of justice, followed by a facilitated discussion. The workshop presentation was intentionally broad and did not put forward any ‘ideal’ notion of justice, briefly introducing concepts such as ‘retributive justice’ and ‘restorative justice’. The interviews were used to explore ideas of justice in light of participants’ experiences of sexual violence and any form of formal and informal justice. In general, we found that participants used the workshop discussions to draw upon their own experiences to contribute towards the discussion, but not to ‘tell their story’. They used the interviews to more fully ground their views in ‘their story’ (although this was purposefully not one of the interview questions – allowing interviewees to choose what level of information they were comfortable disclosing.) We had counsellors in attendance from local violence and abuse services in case any participants required support, and ethical approval was given by Durham University School of Applied Social Sciences research ethics committee. The workshops and interviews were audio recorded and transcribed with the participants’ consent.2 The workshop and interview data were analysed using thematic analysis. An initial coding frame was developed by one researcher, following which a team forthcoming in Social and Legal Studies 5 meeting was used to discuss and develop the initial coding frame before it was applied to the data. The justice themes that are described below are the result of a ‘high’ level conceptual analysis of the inductively developed codes. Participants were recruited using purposive sampling, primarily via local violence and abuse support services, who then cascaded this by word of mouth and their social media channels. We held one workshop in an urban and one in a rural location in order to expand the range of experiences. Twenty women who had experienced sexual violence at least once in their lives participated in the research. Thirteen participants took part in both the workshop and an interview and six took participated only in the interview stage. Participants were aged between 16 and 74 (modal age group being 35-44), with the youngest participants (two sixteen year olds) accompanied by a youth support worker. All participants described themselves as white, and they had varied educational backgrounds, from having no formal qualifications to having a degree or above.3 There was a spread of current occupations, with just under half of the participant group currently students, one quarter in paid employment, two participants unable to work, and one quarter selecting ‘other’, with some of these participants noting multiple occupations. Seven of the participants had experienced sexual violence ‘once or twice’ in their lives, five ‘quite a few times’, and six ‘too many to count’; two participants did not specify how many times they had experienced sexual violence. For some, their experience of sexual violence was in the context of an intimate relationship. When asked about whether they had reported any instance(s) of sexual violence to the police, of the nineteen women who responded to this question, eleven had reported at least one incident. The inclusion of participants who had chosen not to pursue conventional ‘justice’ options enabled the project to engage with victim-survivors who are often not involved in research of this nature which predominantly focuses on the criminal justice system. This methodological approach had two key advantages. First, we found participant recruitment straightforward. Previous research had demonstrated how survivors of sexual violence have called for access to a higher quality and quantity of information about the criminal justice system (Payne 2009). Indeed, we filled the twenty places (ten on each workshop) within days of recruiting, and received requests for more workshops to be put on in the future. Given that survivors of violence and abuse are usually considered to be a ‘hard to reach’ group, it is our contention that offering something ‘back’ – in this case the opportunity to hear a talk by academics and discuss justice with other survivors – gained the attention and interest of participants more than other more conventional research methods. Indeed, rather than sexual violence survivors being a ‘hard to reach’ group, it could be that the methods used in research to date have been under-developed and self-reinforcing (by treating a group as ‘hard to reach’ or inherently ‘vulnerable’, limited methods and higher ethical standards are developed, which then reinforces the group as being ‘hard to reach’). Secondly, we suggest that Educational Empowerment Research may be potentially more empowering than other methods because of the ‘bringing together’ of experiences rather than their individualisation. Bringing a group of ten survivors together into one space, and not being afraid of talking about sexual violence, has overlaps with the ‘conciousness- raising’ methods of the US and UK in the 1960s and 1970s that first revealed the widespread, political, rather than individual, personal experiences of survivors. Indeed, one of our participants reported that she had never (knowingly) met another woman who had been sexually abused until attending the workshop and that she found this an incredibly powerful experience in itself. Every one of the survivors attending the workshops said they were ‘likely’ or ‘very likely’ to attend another workshop if available, and many talked in their forthcoming in Social and Legal Studies 6 evaluation forms about how participation had enabled them to better understand their own experiences. Our Educational Empowerment Research method, therefore, also intersects with Participatory Action Research (PAR) approaches rooted in the legacies of emancipatory education and critical consciousness raising and social change (Freire 1996; hooks 1994, 2003). The educational aspect of EER overlaps with the wider legacy of popular education projects to empower marginalised groups by gaining literacy and numeracy skills and a better understanding of human and legal rights, and to feed their own expertise into the process of knowledge production (Torre and Fine 2006; Singal & Rattine-Flaherty 2006). In this context, group discussions, rather than individual interviews, are essential and their benefits may exceed those of focus groups (Alexander et al, 2007). These benefits include learning from each other, debating and developing collective accounts, greater participant control in determining the direction of debates and interactions with the researcher, a less intrusive way to discuss sensitive topics that does not require the disclosure of personal information, and an ability to produce ‘deeper’ insights about ‘high-involvement topics’ with ‘troubled, traditionally unheard groups’ (Jowett & O’Toole 2006; Kindon et al, 2007). The limitations of our approach include our sample size – although this is comparable to the other international studies discussed earlier. Although we recruited from a rural and urban location, these were within the same geographical part of the UK, and we had no diversity in terms of ethnicity within our sample. It is possible that our sample were so forthcoming in participating because they held particularly strong views on justice, or were survivor-activists. This seemed to be the case for a small number of our participants, but certainly not the majority who talked about being involved because they wanted to see change and for others to have a better experience than their own. Finally, although we were successful in gaining a mixed sample in terms of whether they had engaged with the criminal justice system – an important factor for our study as many research studies only examine survivors who have experienced the criminal justice system – our sample was over- represented in terms of participants who had used a support service. This was due to using violence and abuse support services as the springboard for recruitment of participants – a requirement for ethical approval. Future studies should run separate workshops specifically for Black, Asian and other minority ethnic women. Separate workshops for refugees and asylum seekers could also be held. Greater geographical diversity is needed in future studies, as are the voices of women who are often missing from studies of violence and abuse, including women for whom English is not their first language and women who use British Sign Language. The Emergence of the ‘Kaleidoscopic Justice’ Lens Contrary to assumptions that justice is straightforwardly equated with increasing convictions and prison sentences, when asked to explain justice or identify words associated with justice, our participants hesitated. In their uncertainty, victim-survivors did not automatically go to the tropes of convictions and punishment which would have been the ‘easy’ response. Instead, what arose from discussions were myriad perceptions, ideas and suggestions which might, in some shape or combination, provide - for some - a sense of justice. We have termed this vision of justice ‘kaleidoscopic justice’. Often produced as a children’s toy, a kaleidoscope is an optical instrument with two or more reflecting surfaces (usually mirrors) inclined to each other in an angle. Rotation of the kaleidoscope produces an ever changing viewed pattern; each viewing being forthcoming in Social and Legal Studies 7 unpredictable in outcome. This resonates with how victim-survivors articulate their ideas of justice. Kaleidoscopic justice is justice as a continually shifting pattern, constantly refracted through new circumstances and understandings. The variety of patterning resonates with victim-survivors sense that justice is not linear, but has multiple beginnings and possible endings. Justice is complex, nuanced and a difficult to (pre)determine feeling. Justice is a lived, on-going and ever-evolving experience and process, rather than an ending or result. Within this pluralistic conception of justice, a number of key justice themes, elements of the kaleidoscope, emerged: namely consequences, recognition, voice, dignity, prevention and connectedness. Consequences as Justice ‘I really do think it [justice] is about consequences because punishing people just doesn’t work.’ (Grace) When asked about what justice meant to her, one victim-survivor emphatically stated: ‘meaningful consequences’ (Grace). This phrasing neatly summed up the approach of the participants in general who expressed her interest in seeing all manner of consequences for the perpetrator as a result of the offending behaviour. In this context, consequences means there must be an effect or result flowing from the conduct at issue; something must happen to the perpetrator because of their actions. This idea of consequences includes the common public understanding of justice as the punishment of a convicted perpetrator through the conventional criminal justice system, usually by means of a (long) prison sentence. Importantly, it also goes beyond such a conception. As Grace continued: ‘I really do think it [justice] is about consequences because punishing people just doesn’t work’. Indeed, studies of victim-survivor perspectives have moved beyond a punishment- focussed approach to justice, with some identifying ‘accountability’ of offenders as a key theme. Daly emphasises ‘offender accountability-taking responsibility’, requiring offenders to be ‘called to account and held to account for their actions’ and taking ‘active responsibility’ for their wrongful behaviour (Daly, 2017: 119). Jülich and Landon describe ‘accountability’ as the offender accepting or demonstrating ‘responsibility’, as well as making ‘amends or attempt to put things right’ (Jülich and Landon, 2017: 202). We use the term ‘consequences’; it being the expressed voice of our participants. We also suggest it as a preferred term, potentially conveying a broader concept than accountability, the latter having greater resonance with formal decision-making processes. However, the emphasis on ‘responsibility’ of perpetrators is essential, ensuring that consequences are indeed ‘meaningful’. The common ground, whether it be conceptualised as consequences or accountability, is that the perpetrator be subject to specific actions following the offending for there to be a sense of justice, and these actions – consequences – are varied. The consequences for the perpetrator include conventional punishment and imprisonment. One participant, who chose to be known by the pseudonym ‘Anonymous’, was clear that ‘justice is a guilty conviction’; albeit that for her the conviction was related to prevention. Her aim was ‘not to see him rot in prison or anything like that, it was just for it not to happen again’. Discussion included the death penalty and for Sue the ‘only kind of justice is prison’ (Sue), adding that this was ‘not for revenge, it’s for my own piece of mind that I wanted things put right’. forthcoming in Social and Legal Studies 8 Nevertheless, the perceived limitations of the conventional criminal justice system were evident. Charlotte wondered that ‘even if you received justice kind of through [the criminal justice system], is it the kind of justice that you wanted? Like maybe not necessarily’. Similarly, Amber explained: ‘You still wake up every morning with it hanging over you for as long as it takes for you to have that healing process, and that doesn’t change whether they’re convicted or not.’ Emma reflected that even if ‘there was a conviction, then that would still, like you’re still facing injustice because you are a survivor’. There was similar reluctance to label financial compensation as constituting justice, it being thought of as nominal. General agreement greeted Audrey’s comment in one workshop that: ‘I would have liked him to have been exposed for what he was and I would like the opportunity to know that he wasn’t able to perpetrate any more offences against anyone.’ For Pam, admission of guilt is what she wanted most: ‘I would never ever say putting somebody like that into jail would make things right, like I say, it’s admitting ... them to admit’. She also recognised that each woman may want different things, including ‘they want to go and speak to the perpetrator and vent their anger, if they want them to be banged up in prison for the rest of their lives then they should be able to get it’. Consequences for the offending actions were sought in order to underline, symbolically and emphatically, the significance and harm of the behaviour. The particular consequences which victim-survivors seek varies over time, with Alice commenting that retribution and a ‘typical idea of justice’ was her initial feeling, but that this sense has changed over the years. For the woman chosen to be known as Anonymous, a positive consequence would have been if her perpetrator had had access to counselling, so that she ‘knew it wasn’t going to happen again’. In relation to prison, she said: ‘I wasn’t bothered about that at all’. Consequences are key: not just punishment or imprisonment. This echoes the experience of Project Restore, which undertakes restorative justice conferences in cases of sexual violence, that survivors are ‘not always seeking imprisonment as an outcome of reporting sexual abuse’, particularly those who have experienced abuse in a family setting (Jülich and Landon, 2017: 202). Similarly, Holder found that a ‘good outcome’ was ‘unlikely to include a punitive sentence’ (Holder, 2008: 276), with one of Clark’s participants stating that she ‘didn’t want the perpetrator to go to jail or anything like that’: what she wanted was ‘an acknowledgement or something’ (Clark, 2015: 23). These perspectives chime with Nicola Lacey and Hanna Pickard’s suggestion that punishment be reconceived as a form of institutional forgiving involving the ‘imposition of consequences in response to responsibility for crime’: to ‘punish with forgiveness’ (Lacey and Pickard, 2015: 668, 678). In sum, victim-survivors of sexual violence conceive of justice as involving meaningful consequences for perpetrators that can take a variety of forms, including and beyond the conventional criminal justice system, and differing according to the perspective of each victim-survivor. Importantly, even where the conventional justice system ‘works’ by producing a conviction, this may not of itself secure justice. Victim-survivors are often seeking more, or different, ways of experiencing a sense of justice. These approaches to justice – securing consequences – require us to re-visit the challenge identified by Barbara Hudson nearly twenty years ago: ‘How does one move away from punitive reactions, which – even when enforced – further brutalize perpetrators, without, by leniency of reaction, giving the impression that sexualized ... violence is acceptable behaviour?’ (Hudson, 1998: 245). Recognition as Justice forthcoming in Social and Legal Studies 9 ‘I think it’s that recognition of hurt that would mean or does mean justice to me personally.’ (Sophie) Any sense of justice for victim-survivors is predicated on ‘recognition’. Recognition is the perception of something as existing or true: they have been harmed and victimised. Recognition also entails an expectation or entitlement to consideration; it is a form of acknowledgement, conveying support. Recognition, in this sense, therefore, is more than ‘being believed’. It encompasses the significance of the experience being acknowledged; of its power and importance for the victim-survivor and in society more generally. Fundamental is the recognition not just of the significance of this experience, but of the significance of the victim-survivor herself/himself.4 In the context of transitional justice, and drawing on the work of Axel Honneth (1995), Frank Haldemann has suggested justice ‘as recognition’ as this gives ‘due recognition to the pain and humiliation experienced by victims’ (Haldemann, 2008: 678). He argues that moral injury is experienced as the denial of recognition and occurs where a physical harm is accompanied by forms of disrespect and humiliation (2008). Recognition has a symbolic dimension, drawing on the harm suffered by victims beyond the physical and betokened by a ‘profound lack of concern’ (Haldemann, 2008: 678). Recognition, therefore, is a communicative response, acknowledging the truth of someone else’s perspective: it is the ‘adoption of a stance that grants recognition to another person’s reality’ (Haldemann, 2008: 698). This echoes Holder’s reference to the centrality of survivors’ ‘status’ in society; their ‘recognition of standing’ as central to understandings of justice (Holder, 2015:196-198). Recognition can come from the responses of perpetrators. Winnie said that ‘you want them to be punished, but I think more, just acknowledge that it’s wrong and not to do it again’. ‘Anonymous’ talked about different justice processes including restorative justice and said that ‘for me it was more about him understanding the severity of what he’d done and acknowledging it’. In considering what outcomes or options would be welcome in the absence of a criminal justice process, there was general agreement that acknowledgement from the perpetrator would be important. Pam expressed her wish that her perpetrator would ‘admit what he has done because that is all you want ... is for them to turn around and say “Yes, I did it”.’ Acceptance by the perpetrator is how Winnie described this: ‘acceptance of what they did and them to accept that it’s wrong’. But recognition is not solely focussed on the offender; a sense of justice is predicated on family, friends, the public and authorities recognising –being ‘taken seriously’ to use Charlotte’s words. Alice suggested that ‘in the short term’, receiving some form of ‘validation’ was crucial to a feeling of justice. For her, not ‘being believed and not being validated initially was very, very damaging’. Rachel says that she wanted ‘my family to believe me.’ Sophie explained that ‘justice for me is having not only the perpetrator but also different sections of society as a whole understanding that I was really hurt and ... be able to see and appreciate that actually that must have been awful’. Our concept of ‘recognition’ develops and brings together the ideas of vindication and validation emphasised in other research. This is encompassed in ‘recognition’; acknowledgement that something has happened, recognition of its significance and recognition of the victim-survivor as a worthy member of society.5 We can also see the echoes in Nancy Fraser’s argument that recognition has an important collective dimension; challenging the injustice of ‘misrecognition’ of harms and experiences (Fraser, 1992; Henry, forthcoming in Social and Legal Studies 10 2015). Fraser argues that viewing misrecognition as a form of injustice helps to focus solutions on effecting broader social change (Fraser, 1998: 26). Recognition, therefore, is central to survivors’ sense of justice and conveys more than ‘being believed’, to encompass acknowledgement of the significance and nature of the harm, and an attempt to remedy the injury to self-respect. This is why outcomes of the conventional criminal justice system do not necessarily equate to a sense of justice. Such outcomes do not necessarily address the issues of humiliation, lack of respect, moral injury. Further, recognition is more than the relationship between citizens and the state, vital though that is: it is also about the actions and responses of individual perpetrators, friends, families and communities. Dignity as Justice ‘It just wasn’t very sensitive.’ (Jill) Recognition must be experienced with dignity. Dignity is the further embodiment of the need for recognition of the victim-survivor as a person of worth. With weary understatement, Jill described her experience of the criminal justice system: ‘It just wasn’t very sensitive.’ Emma was similarly straightforward: ‘if there was better treatment then people would be more likely to report’, summing up justice as simply ‘good treatment’. Charlotte’s experience was of being treated ‘like a bit of evidence’ rather than as a human being. In one case, the Crown Prosecution Service admitted that their prosecuting barrister had failed to watch the victim- survivor’s video statement before the trial, resulting in a number of errors which were likely to have contributed to the subsequent acquittal. This admission came at the end of a process which was characterised by a lack of consultation and which began with investigatory failings. Frances was only told half an hour before giving evidence whether she would be able to speak by video-link which, not surprisingly, ‘panicked’ her. On experiences reporting to healthcare workers, Charlotte described the ‘constant disbelief’ she faced, compounded by ‘insensitive treatment’ in ‘having to describe over and over again’ what had happened (even though there are protocols to reduce this). For Cali, the indecision, and forever changing decisions on the process towards prosecution and trial made the experience extremely challenging. She explains that she ‘didn’t want to go to court and they told me that I had ... like they wanted me there. So then I prepared for that and then they told me they didn’t want me there. So then I was like well... and then they told me that they did want me there’ and they changed their mind again. In the end, it was ‘so up and down and they took all the power away from me because I didn’t know what I was meant to be doing’. She also found the lack of communication from prosecutors and police deeply insensitive. She would contact them to find out about progress, to be told ‘we’ll ring you back’ and ‘then they wouldn’t ring back’. This was then followed by ‘three days later “oh we forgot” but that doesn’t make you feel very important and just makes you feel like you’re just another person added to the bottom of the list’. Amber had a similar experience commenting that the prosecutors were ‘quite bad at sort of keeping in contact’ and letting her know what was happening because, she thought, they just expected her to understand the whole process. Nor was she consulted about important decisions on the case. Other participants recounted a myriad of experiences mostly involving criminal justice personnel failing to see the person behind the number or name: failing to call when they said they would; failing to give warning of specific court procedures; failing to follow protocol and therefore asking for experiences to be recounted forthcoming in Social and Legal Studies 11 again and again. Beyond the criminal justice system, ‘good treatment’ was also sought from family, friends, other professionals, and society more generally. These experiences and expectations point to a simple, yet seemingly intractable, means of securing justice: treating victim-survivors with dignity. When victim-survivors describe system failures, or personal interactions, rectifying them is not just about better policies or procedures, important though these are. It is about how survivors are treated. Justice here ‘only’ requires sensitive, respectful, dignified treatment; yet this appears to be so difficult to achieve. As Herman suggested when emphasising the significance of ‘honor’ for victim-survivors, while this may appear a ‘modest’ aim, it is actually ‘profoundly radical’ (Herman, 1995: 599). So too the related idea of a ‘decent’ society advanced by Avishai Margalit; that is, a society ‘whose institutions do not humiliate people’ (Margalit, 1996, in Haldemann, 2008: 687). This has parallels to the justice expectations of victims-survivors and why ‘dignity’ is more than ‘procedural justice’. The importance of procedural justice for victim-survivors has been increasingly recognised (Kelly et al, 2006; Pemberton et al, 2017; Skitka et al, 2011). Holder explains that the ‘fairness of the procedures used by the decision-maker and the fairness with which they treat the person(s) subject to the decisions’ were found to be important concerns for victims- survivors (Holder 2015: 188). Further, and as Skitka et al identify, procedural justice is also about ‘people’s needs for status, standing and belonging’ (Skitka et al, 2011: 101). This is why the concept of dignity more accurately reflects the justice interests of victim-survivors than ‘procedural justice’ (albeit that procedural justice can be interpreted in different ways). One of the most commonly cited understandings of dignity comes from Kant, with dignity being the embodiment of his belief that individuals should be treated as ends and not means. Jeremy Waldron develops this conception, advancing dignity as being about each individual’s basic social standing in society, generating demands for recognition and treatment that accord with that status (Waldron, 2010). Further, while we may say that dignity is inherent in the individual, it has to be ‘nourished and maintained by society and the law’; at the ‘very least’, Waldron suggests, ‘we are required in our public dealings not to act in a way that undermines one another’s dignity’ (Waldron, 2010: 1611-1612). This is dignity as imposing obligations on all of us, not just representatives of the state such as criminal justice personnel. It also reinforces the links between victim-survivors’ conceptions of justice and the ways they experience harm. Sexual violence is about treating someone as a means to an end: justice is reaffirming her status as a subject - as an end in itself. Nonetheless, dignity is not being proposed here as a legal principle, though it is the foundation for many human rights instruments and international obligations. Rather, we are using it as a ‘value or principle embedded in a political argument’ (Waldron, 2012: 138), emphasising that justice for victim-survivors is not just following the rules (though that is obviously essential). It entails a ‘decent’ society which treats its citizens, and that we treat each other, with dignity, with respect. Dignity is the embodiment of the social standing of all of us in society, and ties into the emphasis on justice as connectedness. Voice as Justice ‘Freedom to talk ... you’re able to talk openly and honestly about what happened to yourself’ (Sue) forthcoming in Social and Legal Studies 12 Voice has long been central to understandings of justice for sexual violence victim-survivors. Many victim-survivors wish to give voice to the harms they have suffered and for this to be recognised and this is more than simply ‘having a say’. Research with victim-survivors has demonstrated more deeply-held and nuanced approaches to ‘voice’. Holder found voice as constitutive of demonstrations of ‘respect’ and a meaningful ‘dialogue’ between victims and justice officials, as well as about influencing decision-making (Holder, 2015: 202-204). Voice, in varying forms, has also been suggested as a possible means of taking ownership of justice processes (Keenan, 2014; McGlynn et al, 2012; Daly and Stubbs, 2006). In our discussions with victim-survivors, voice became a metaphor encompassing a number of different justice interests. The first of these elements is voice as active participation in the decisions and direction of justice processes ([removed for peer review]). A sense of marginalisation was evident from our participants, with Charlotte explaining how she felt like ‘a bit of evidence’, embodying the peripheral role of the ‘victim’ within the criminal justice process. Victim-survivors also spoke about how they wanted to be more in control of the justice process: Charlotte stressed the need for victim-survivors to ‘have a say in the investigation in their case’. This emphasises the link to recognition; to the justified desire to be seen as someone not just something. Cali reported that the first reform that could be launched would be to ensure that ‘any decision that’s going to be made ... consult the victim first’. This resonated with another whose experience was of a judge making decisions which he ostensibly thought were in her interests, but without consulting her (Anonymous). Charlotte suggests that ‘being able to have a voice’ in discussions around a case would perhaps make it more likely for women to report to the police and take cases through to court. Voice, therefore, is as much a metaphor for power; power to make and shape your future. It was clear from those who had engaged with the conventional criminal justice system that they often felt powerless, compounding their already depleted feelings of power as a result of the sexual assaults they had experienced. Closely related to active participation is voice as a process of speaking out and making sense of the harm experienced in a way that is truly heard by perpetrators, family members and friends. For some victim-survivors, a forum to voice their harm has enabled them to better understand what happened, offload the weight of the crime and redress power imbalances (Koss 2014). For some, restorative justice conferences in which victim-survivors can ask questions and receive answers can help to lift the burden of blame, restore self- respect and enable survivors to move on (Keenan, 2014; McGlynn et al, 2012; Koss, 2014). In this study, some victim-survivors wished for the perpetrator to directly bear witness to their story, answer their questions and recognise the harm they had caused. Pam described how she ‘would love so much to be able to get the chance, for somebody to… for me to sit in front of that man, and say “Do you know what you’ve done to me?” and for him to admit what he has done because that is all you want… is for them to turn around and say “Yes, I did it”’. Gaining a more comprehensive understanding of the act by knowing the perpetrator’s perspective was important to some victim-survivors: ‘the hardest part is trying to work out for yourself why they’ve done it because you can never put yourself in their mind’ (Elaine). For Fiona, the option of dialogue with her perpetrator outweighed the benefits of imprisonment in terms of the value this would add to her own process of understanding: ‘if I was given the option whether to do the restorative process or just send someone to jail I would rather sit down and understand why than send someone away and [be] left with unanswered questions and have to try and figure out what’s going on’. forthcoming in Social and Legal Studies 13 Nonetheless, active participation and/or speaking out are not suitable or desired by all victim-survivors (Fileborn, 2016; Henry, 2010; Stubbs, 1997). The ability and willingness of victim-survivors to participate in justice processes, and engage in dialogue of some form with perpetrators, will vary among victim-survivors and will be dependent on a wide variety of factors. In our study, different lengths of time had elapsed since participants’ most recent experience of sexual violence, and it is likely that their perspectives and ability to speak in their own interests vary depending on this and other individual circumstances (for example support from family and friends). This underlines the individualised, nuanced and variegated nature of justice for victim-survivors. Voice, therefore, is not necessarily a straightforward idea as it encompasses more than simply being consulted or telling one’s story. Holder identifies in these claims to voice a shift from the subject as ‘victim’ towards the critically informed ‘citizen’: the ‘victim-citizen’ (Holder, 2015: 204). This is in contrast to assumptions that victim-survivors’ desire for voice is subjective, therapeutic and emotional, though it might also be those things. Victim- survivors are ‘knowers’ whose perspective ‘added to the quality and meaningfulness of decision-making’ (Holder, 2015: 206). Their perspectives are not just being received, but being ‘heard’ in a meaningful sense and acted upon. Having a voice, and being heard, is both as a means of securing recognition of harm and of bringing about social and cultural change, including prevention, through a better understanding of sexual violence. In this way, the inter-relationship between different justice elements can be identified. Justice as recognition, for example, is closely related to justice as voice. Victim-survivors play a necessary role in ensuring recognition of the harms of sexual violence by giving voice to their specific experiences and injustices. In turn, this can enable recognition. This is justice as an iterative process. Prevention as Justice ‘I think the only way you could get justice is for it not to happen really, that’s the only justice that I can see in a broad sense.’ (Emma) For our victim-survivors, prevention of sexual violence and education for change was fundamental to their sense of justice. In essence, they are seeking little less than a transformation of society; towards a society that recognises the harms of sexual violence and actively seeks to reduce its prevalence. To an extent, this is not surprising. Prevention is known to be linked to victim-survivors’ decisions to report to the police (Taylor and Norma, 2012) and deterrence and rehabilitation are important aims of the conventional criminal justice system. However, for victim-survivors, the prevention focus is more than the rehabilitation or deterrence of an individual, but encompasses a clear (re)educative ambition beyond the conventional criminal justice system. Work aimed at preventing sexual violence, from campaigns, to education in schools, to challenging media representations, to taking part in research studies such as this one, were viewed by many of the participants as central to their sense of what justice might feel like. Gayle was clear that ‘rather than punishing exactly... I’d rather no-one go through it’ (Gayle). Punishment, she continued, is ‘very defendant focussed, very after the event and it’s not about the victim or stopping it at all’. As another explained, because conventional punishment is so limited in scope: ‘I can only think that the only real answer is to try and stop it happening in the first place and to maybe concentrate our efforts on that’ (Lisa); echoed by Emma identifying ‘preventative forthcoming in Social and Legal Studies 14 education’ as key to preventing injustices into the future. Ilona emphasised that: ‘I don’t think any type of punishment will be enough for somebody that’s gone through it because it can’t get that time back. It can’t heal the wounds you can’t see. So there has to be some kind of education, safety, something put in place because of the society we live in. Apart from education, what else can we do?’ Lisa reported that she would ‘feel better if I knew that we were sort of tackling some of the root causes’, not just ‘fire-fighting’ as she described the current approach. Describing victim-blaming as the most ‘extreme form of injustice’, Alice advocated (re)education as signifying society’s efforts to change. Karen pointed to the high cost of imprisonment and suggested that ‘putting money into education and those sorts of things ... and rehabilitation’ is money ‘better spent quite honestly’ than imprisonment. This is a vision for the (re)education of children and young people in schools, of criminal justice personnel, of perpetrators, of politicians and those in the media, of all of society including therefore friends, families and communities. Many victim-survivors spoke of the difficulty of being on the receiving end of rape myths and victim-blaming attitudes. Others voiced the fear that their pain would not be understood, rendering them silent; with prevention here having a close association with justice as voice. Prevention could be seen as a necessary precursor to securing other elements of justice, particularly recognition. As Lisa explained, if family and friends ‘don’t have that education or level of understanding [of sexual violence] you might not get that level of validation or acknowledgement’. This emphasis on prevention and change has echoes with earlier research where Herman described how her participants ‘preferred to prevent offenders from committing future crimes, rather than to punish them for those already committed’ (Herman, 2005:597). Jülich similarly found that survivors indicated that ‘addressing the underlying causes of offending’ would ‘contribute to providing them with a sense of justice’ (Jülich, 2006: 130). Clark’s study noted that for some respondents ‘individual justice was not a key priority’ (Clark, 2015: 30). Engaging the community and state to prevent sexual offending was a ‘high priority’, with most participants considering that preventing sexual violence ought to be a key function of the criminal justice system (Clark, 2015: 30; Powell et al, 2015). In sharing an emphasis on prevention, this element of kaleidoscopic justice shifts the focus of conventional criminal justice from the individual ‘incident’, to broader notions of social and transformative justice. This is prevention beyond (though still including) the rehabilitation of individual offenders. It is prevention as enabling a feeling of justice through education and social change to reduce harm and prevalence. In essence, many victim- survivors will only feel a sense of justice when we live in a more just society. Connectedness as Justice ‘Making the victim of sexual violence whole again.’ (Alice) All aspects of justice, Alice explained, should be about ‘making the victim of sexual violence whole again’. She continued: ‘I think it depends upon the individual but... but for me I think that justice is being able to live a normal life and a happy life despite perhaps a past history of sexual violence’. This is connectedness as justice; as being valued as a whole person in society, not just as a victim, survivor or piece of evidence. Connectedness is about belonging in society, being recognised, being treated with dignity, having a voice. It is about receiving societal support in the aftermath of trauma, including financial assistance. It is about being recognised. Fundamentally, connectedness as justice is about redressing a victim-survivor’s forthcoming in Social and Legal Studies 15 shattered sense of belonging; the justice interests thereby reflecting the harms and impacts of sexual violence. This is justice beyond individual interactions or perpetrator consequences. It is about society’s material expression of empathy, support and dignity, with the aim of enabling a victim-survivor to regain a sense of belonging and connection with society and feel a sense of justice. This develops Holder’s emphasis on the importance of recognising ‘victims as citizens’ (Holder 2015). Our approach also resonates with Susan Herman’s idea of ‘parallel justice’ which aims to ‘provide justice to victims by helping them to rebuild their lives’ (Herman 2010: 75). Rebuilding lives can entail a wide range of support, from material needs (such as compensation) for the purposes of housing, employment, health and support, advice through the criminal justice system and the sorts of assistance offered by many women’s support services. Emphasising the importance of redistribution of resources as key to social justice, Nancy Fraser has argued that what is necessary are ‘social arrangements that permit all (adult) members of society to interact with one another as peers’ (Fraser, 1998, 30; Henry, 2015: 209). Our victim-survivors emphasised this collective dimension of justice, of the need for support, as fundamental to their conceptions of justice. In this way, realising justice is about reconnecting the victim-survivor with society. For example, having a support worker throughout the court process provided ‘peace of mind’ for Amber; ‘it makes you feel cared about’ said Cali. Frances said that: ‘I think all the support systems should be put in place, for longer, because it’s not just going through court, it’s the outreach support as well’. In her experience, she eventually found an organisation which allows ‘you to have your own choices, they allow you to make decisions, they empower women and walk side by side’. If it had not been for that organisation, Frances reported: ‘I wouldn’t be sat here now having this conversation with you.’ For Anonymous, accessing support through rape crisis ‘has been the best thing for me’ because ‘that has got me through everything’. Others stressed how important support was following on from interactions with the criminal justice system. It is not a surprise that survivors expressed their wish for various forms of material and practical support.6 However, such aspirations are often characterised as ‘needs’ for ‘survival’, elements of support commonly separated from other justice interests such as voice, consequences and recognition (Daly, 2017). Nadia Wager, alternatively, combines ‘healing and justice needs’ in view of the ‘synergies and similarities’ between different elements (Wager, 2013). We suggest that ‘justice as connectedness’ embodies society’s material expression of recognition of the harms and personhood of a victim-survivor and encompasses material and practical support. While the idea does encompass support such as counselling, a sense of justice as connectedness is independent of the ‘healing’ of a victim- survivor. 7 The focus is not on benefitting well-being per se, but this as a means by which victim-survivors may experience a sense of justice. The justice interest is connectedness and action is needed by society to enable this sense of connected as justice to be realised. In this way, connectedness is a vital part of the justice interests of victim-survivors for two main reasons: it is both a means and an end. It is a critical enabler: the means by which other interests such as dignity and voice can be realised. But it is also an end in itself: it is the material expression, and recognition, of society’s commitment to ensuring victim-survivors are full members of society and feel a sense of justice. This is connectedness as belonging in society: the victim-survivor as a ‘victim-citizen’ (Holder, 2015: 204): Justice is felt: an embodied feeling of justice, created and sustained by active support in society. Conversely, a forthcoming in Social and Legal Studies 16 lack of connectedness and belonging reinforces victim-survivors’ sense of an absence of recognition, dignity, voice; and ultimately a keenly felt sense of injustice. Justice beyond the individual ‘case’ Collectively, these justice themes emphasise that for victim-survivors of sexual violence, justice has multiple meanings including, but also beyond, conventional, state-sanctioned or imposed notions of justice. In particular, while justice is conventionally viewed and assessed through the prism of the individual ‘case’, incident or experience, this does not encapsulate the totality of victim-survivors’ perspectives. For many, justice is sensed beyond their individual experiences and is about broader patterns of social justice, including for example prevention and (re)education. Kaleidoscopic justice, therefore, has a broader notion of social justice, beyond the individual ‘case’ or experience of victim-survivors, at its heart. It is about envisioning a world free of violence against women. Justice, therefore, is not the preserve of the conventional criminal justice system or the state, vital though these responses are for all forms of sexual violence. It is not only about convicting an individual offender, but also about preventing attacks on victim-survivors’ sisters, mothers, daughters and friends. Justice, here, is a ‘collective, rather than individual, pursuit’.8 Justice is also felt through a myriad of often small, cumulative and interconnected events and responses, across families, communities, criminal justice agencies and public or state authorities. A sense of justice may begin to be felt when women begin to experience freedom to live their lives, to regain a sense of power. This collective, societal vision of justice resonates with experiences of justice in societies in transition (Burns and Daly 2014), as well as with ideas of transformative justice where Angela Harris states that ‘each incidence of personal violence should be understood in a larger context of structural violence’ (Harris, 2011: 38). This approach also emphasises that even were the conventional criminal justice system to improve, to better meet the interests and expectations of victim-survivors, it would not in itself be sufficient to generate a sense of justice. It is not just the failures of the criminal justice system that currently produce a ‘justice gap’. Unpredictability and complexity Perhaps because kaleidoscopic justice looks beyond an individual case, and encompasses broader notions of social justice, it is also unpredictable and complex. It has a variegated feel, differing for each victim-survivor, and differing for each victim-survivor over time. This variety and nuance reflects the lived, on-going experiences of victim-survivors of sexual violence and the harms experienced. As Asher Flynn suggests, sexual violence as a phenomenon is ‘un-coded’: it is not a recognisable event and does not fit into one specific narrative (Flynn, 2015). This helps to explain why victim-survivors conceptions of justice are so multifarious and therefore beyond a dominant ‘rape narrative’. Because there is no one way to experience sexual violence, there can be no singular justice solution: because victimization is a process, so too is justice (Daly, 2014). Victim-survivors’ understanding of justice are not ‘static but rather change, develop and evolve’ (Clark, 2015: 21). A challenge presented by kaleidoscopic justice, therefore, is that justice is unpredictable. Different elements of the kaleidoscope will have greater significance and resonance for each victim- survivor. As Alice explained: ‘what justice is in the immediate timeframe, right after like an assault, will be different from what that person might think of justice down the road [in] a few years.’ forthcoming in Social and Legal Studies 17 Conclusions This article has examined the justice perspectives of victim-survivors who have experienced sexual violence in individual contexts, in a western liberal democracy. What emerged is a more multifaceted way of thinking about justice from the perspective of sexual violence survivors, namely ‘kaleidoscopic justice’. This framing aims to capture the breadth, variety, complexity and dynamism of sexual violence victim-survivors’ understandings of justice. Kaleidoscopic justice is justice as a constantly shifting pattern, continually refracted through new experiences and perspectives, with multiple beginnings and no finite ending. Justice as a pluralistic, lived, evolving experience. Embedded within this approach are various justice themes - consequences, recognition, dignity, voice, prevention and connectedness – which embody and exemplify the constantly changing pattern of kaleidoscopic justice. Understanding these themes enables us to see the variety of ways in which kaleidoscopic justice is understood and experienced. In particular, we have emphasised the dynamism of justice, and the centrality of prevention and connectedness. The different justice themes are also interactive, often dependent on each other, underlining that justice is an iterative process. We suggest that it will only be by recognising and embedding the implications of kaleidoscopic justice into our reform efforts that we may begin to address the sexual violence ‘justice gap’. This will involve not just reform of the conventional criminal justice system, but being open to the variety of ways in which victim-survivors may experience a sense of justice. In this context, it is important to recognise that kaleidoscopic justice is a different way of thinking about victim-survivors’ and justice; a new lens through which to consider and examine potential new reforms, processes and practices. It is not therefore a new ‘model’ of justice, or ‘justice mechanism’, providing a competing structure or process (Daly 2016). Kaleidoscopic justice is the precursor, the conceptual underpinning and a new framework, for the vital work of making real a commitment to justice from the perspective of victim- survivors of sexual violence. Acknowledgements We would like to acknowledge the strength and openness of the women who participated in this research project and to thank them for their contributions. We also appreciate the support of a number of organisations which worked with us on this project and to support the women involved. In addition, many thanks are due to Judith Evans and Julia Downes for their research assistance, and to Fiona Vera-Gray, Hildur Fjóla Antonsdottir and Ian Ward and the anonymous reviewers who gave valuable insights on earlier drafts of this article. This research was first presented at Leuven University in 2014 and we have subsequently benefitted from many helpful comments following presentations at the universities of Monash, Lund, Edinburgh, Leicester and the Institute of Advanced Study at Durham University. References Alexander, C., Beale, N., Kesby, M., Kindon, S., McMillan, J., Pain, R. and Ziegler, F. (2007) ‘Participatory diagramming’ (In) Kindon, S., Pain, R. and Kesby, M. (Eds.), Participatory Action Research Approaches and Methods: Connecting People, Participation and Place. London: Routledge, pp. 38-42. forthcoming in Social and Legal Studies 18 Burns, C and Daly, K (2014) Responding to everyday rape in Cambodia: rhetorics, realities and somroh somruel’. Restorative Justice: an international journal 2: 64. Daly, K (2006) Restorative Justice and Sexual Assault - An Archival Study of Court and Conference Cases. British Journal of Criminology 46: 334. Daly, K (2014) Reconceptualizing sexual victimization and justice. In Vanfraechem, I et al (eds) Justice for Victims: Perspectives on rights, transition and reconciliation Oxford: Routledge, pp. 378-395. Daly, K (2015) Sexual Violence and Justice: how and why context matters. In Powell, A, Henry, N and Flynn, A (eds) Rape Justice: Beyond the criminal law. Basingstoke: Palgrave MacMillan, pp. 36-52. Daly, K (2016) What is restorative justice? Fresh answers to a vexed question. Victims and Offenders 11:9. Daly, K (2017) Sexual violence and victims’ justice interests. In Zinsstag, E and Keenan, M (eds), Restorative Responses to Sexual Violence - Legal, Social and Therapeutic Dimensions. Oxford: Routledge, pp. 108-139. Daly, K and Stubbs, J (2006) Feminist engagement with restorative justice. Feminist Criminology 10(1): 9-28. Downes, J, Kelly, L & Westmarland, N (2014). Ethics in Violence and Abuse Research - a Positive Empowerment Approach. Sociological Research Online 19(1): 1-23. Erez, E, Kilching, M and Wemmers, J (2011) Therapeutic Jurisprudence and victim participation in justice: an introduction. In Erez, E, Kilching, M and Wemmers, J (eds) Therapeutic jurisprudence and victim participation in justice: international perspectives. Durham: Carolina Academic Press, pp. ix-xix. Fileborn, B (2016) Justice 2.0: Street Harassment Victims’ Use of Social Media and Online Activism as Sites of Informal Justice. British Journal of Criminology forthcoming. Fineman, M and Zinstagg, E (eds) (2013) Feminist Perspectives on transitional justice: from international and criminal to alternative forms of justice. Netherlands: Intersentia. Flynn, A (2015) Sexual Violence and Innovative Responses to Justice – interrupting the “recognisable” narrative’. In Powell, A, Henry, N and Flynn, A (eds) Rape Justice: Beyond the criminal law. Basingstoke: Palgrave MacMillan, pp. 92-111. Fraser, N (1998) Social Justice in an age of identity politics: redistribution, recognition and participation’. In Peterson, G (ed) The Tanner Lectures on Human Values XIX. Salt Lake City: University of Utah Press, pp. 1-67. Freire, P (1996) Pedagogy of the Oppressed, 2nd ed, Penguin. Goodmark, L (2015) “Law and Justice are not always the same”: creating community-based justice forums for people subjected to intimate partner abuse’. Florida State University Law Review 42: 707. https://www.dur.ac.uk/sociology/staff/profile/?mode=pdetail&id=4290&sid=4290&pdetail=89751 https://www.dur.ac.uk/sociology/staff/profile/?mode=pdetail&id=4290&sid=4290&pdetail=89751 forthcoming in Social and Legal Studies 19 Haldemann, F (2008) Another Kind of Justice: Transitional Justice as Recognition. Cornell International Law Journal 41: 675. Haley, C (2015) A Fair Way to Go: Justice for Victim-Survivors of Sexual Violence. In Powell, A, Henry, N and Flynn, A (eds) Rape Justice: Beyond the criminal law. Basingstoke: Palgrave MacMillan, pp 18-35. Harris, A (2011) Heteropatriarchy kills: challenging gender violence in a prison nation. Washington University Journal of Law and Policy 13. Henry, N (2010) The Impossibility of Bearing Witness: Wartime Rape and the Promise of Justice. Violence Against Women 16: 1098. Henry, N (2015) The Law of the People: civil society tribunals and wartime sexual violence. In Anastasia P, Henry, N and Flynn, A (eds) Rape Justice: Beyond the criminal law. Basingstoke: Palgrave MacMillan, pp. 200-217. Henry, N, Flynn, A and Powell, A (2015) The Promise and Paradox of Justice – rape justice beyond the criminal law. In Powell et al (eds) Rape Justice – beyond the crimimal law Basingstoke: Palgrave MacMillan, pp. 1-17. Herman, J (2005) Justice from the Victim’s Perspective. Violence Against Women 11(5): 571- 602. Herman, S (2010) Parallel Justice for Victims of Crime. Washington: National Centre for Victims of Crime. Hohl, K and Stanko, E (2015) Complaints of rape and the criminal justice system: Fresh evidence on the attrition problem in England and Wales. European Journal of Criminology 12: 324. Holder, R (2015) Satisfied? Exploring Victims’ Justice Judgments. In Wilson, D and Ross, S (eds) Crime, Victims and Police: International contexts, Local Experiences. Basingstoke: Palgrave Macmillan, pp. 184-213. Honneth, A (1995) The Struggle for Recognition: the moral grammar of social conflicts. Cambridge: Polity Press. hooks, B (1994) Teaching to Transgress, Routledge. hooks, B (2003) Teaching Community: a pedagogy of hope. Routledge. Hudson, B (1998) Restorative justice: The challenge of sexual and racial violence. Journal of Law and Society 25: 237. Jowett, M and O’Toole, G (2006) ‘Focusing researchers’ minds: contrasting experiences of using focus groups in feminist research’ Qualitative Research 6,4, pp 453-72. Joyce-Wojtas, N and Keenan, M (2016) Is restorative justice for sexual crime compatible with various justice systems? Contemporary Justice Review 19: 43. http://journals.sagepub.com/author/Hohl%2C+Katrin http://journals.sagepub.com/author/Stanko%2C+Elisabeth+A forthcoming in Social and Legal Studies 20 Jülich, S (2006) Views of justice among survivors of historical child sexual abuse. Theoretical Criminology 10(1): 125-138. Jülich, S and Landon, F (2017) Achieving Justice Outcomes: participants of Project Restore’s Restorative Processes. In Zinsstag, E and Keenan, M (eds) Restorative Responses to Sexual Violence: Legal, Social and Therapeutic Dimensions. Oxford: Routledge, pp. 192-211. Keenan, M (2014) Sexual Trauma and Abuse: Restorative and Transformative Possibilities? Dublin: University College Dublin. Kelly, L et al (2005) A Gap or a Chasm? Attrition in Reported Rape Cases. London: Home Office. Kindon, S, Pain, R and Kesby M (eds) (2010) Participatory Action Research Approaches and Methods Routledge Koss, M 92014) The RESTORE program of restorative justice for sex crimes: vision, process and outcomes. Journal of Interpersonal Violence 29: 1623. Lacey, N and Pickard, H (2015) To blame or to forgive? Reconciling punishment and forgiveness in criminal justice. Oxford Journal of Legal Studies 35(4): 665-696. Lonsway, KA and Archambault, J (2012) The “Justice Gap” for Sexual Assault Cases - Future Directions for Research and Reform. Violence Against Women 18: 145. Margalit, A (1996) The Decent Society. Cambridge, Mass: Harvard University Press. Martin, D (1998) Retribution Revisited: a reconsideration of feminist criminal law reform strategies. Osgoode Hall Law Journal 36: 151. Matthews, R (1988) Reassessing formal justice. In Matthews, R (ed) Informal Justice? London: Sage. McGlynn, C, Westmarland, N and Godden, N (2012) “I just wanted him to hear me”: sexual violence and the possibilities of restorative justice. Journal of Law and Society 39: 213-240. Pemberton, A et al (2017) Beyond retribution, restoration and procedural justice: the Big Two of communion and agency in victims’ perspectives on justice. Psychology, Crime & Law forthcoming. Payne, S (2009) Redefining Justice: Addressing the individual needs of victims and witnesses. London: Ministry of Justice. Ptacek, J (ed) (2010) Restorative Justice and Violence Against Women. Oxford: Oxford University Press. Powell, A, Henry, N and Flynn, A (eds) (2015) Rape Justice: beyond the criminal law. Basingstoke: Palgrave Macmillan. http://journals.sagepub.com/author/Lonsway%2C+Kimberly+A http://journals.sagepub.com/author/Archambault%2C+Joanne forthcoming in Social and Legal Studies 21 Roht-Arriaza, N (2004) Reparations in the Aftermath of Repression and Mass Violence. In Stover, E and Weinstein, H (eds) My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity 122. Sen, A (2009) The Idea of Justice. Belknap Press. Shklar, J (1990) The Faces of Injustice. Yale University Press. Singhal, A., & Rattine-Flaherty, E. (2006). Pencils and photos as tools of communicative research and praxis: Analyzing Minga Perú’s quest for social justice in the Amazon. Gazette, 68(4): 313-330. Skitka, L (2009) Exploring the “Lost” and “Found” of Justice Theory and Research. Social Justice Research 22, pp. 98-116. Skitka, L, Aramovich, N, Lytle, B and Sargis, E (2011) Knitting Together an Elephant: an integrative approach to understanding the psychology of justice reasoning. In Bobocel, D et al (eds) The Psychology of Justice and Legitimacy: the Ontario Symposium. pp 1-16. Strang, H (2002) Repair or Revenge: victims and restorative justice. Oxford: Oxford University Press. Stubbs, J (1997) Shame, Defiance and Violence Against Women. In Bessant, J and Cook, S (eds) Women’s Encounters with Violence – Australian Experiences. Sage. Taylor, C and Norma, C (2012) The “Symbolic Power” behind Women’s reporting of Sexual Assault Crime to Police Feminist Criminology 7:24. Temkin, J and Krahe, B (2008) Sexual Assault and the Justice Gap. Oxford: Hart. Torre, Maria E., and Michelle Fine. 2006. Participatory Action Research (PAR) by Youth. In, Lonnie Sherrod (ed.) Youth Activism: An International Encyclopedia. Westport, CT: Greenwood Publishing Group, pp. 456-462. Wager, N (2013) The experience and insight of survivors who have engaged in a restorative justice meeting with their assailant’ Temida March:11-32. Waldron, J (2010) Dignity and Defamation: The Visibility of Hate. Harvard Law Review 123: 1596-1657. Waldron, J (2012) The Harm in Hate Speech. Cambridge, Mass: Harvard University Press. Westmarland, N, McGlynn, C, Evans, J (2014) Educational Empowerment Action Research: The Rape Justice Project, Paper presented to Transformative Feminist Methods conference, 10 September 2014, Durham University, UK https://www.dur.ac.uk/criva/feministmethods14/ Wolhuter, L et al (2009) Victimology: Victimisation and Victims' Rights. London: Routledge. Zehr, H (1990) Changing Lenses: a new focus for crime and justice. Scottdale: Herald Press. https://www.dur.ac.uk/criva/feministmethods14/ forthcoming in Social and Legal Studies 22 1 Our focus is on sexual violence as predominantly experienced in western liberal democracies. Justice interests and experiences differ significantly in different contexts such as in countries in conflict (Daly, 2017). 2 The names used in this work are those chosen either by the participant where they decided to do so (including one who wished to be known as Anonymous) or by the research team. 3 That the group were all white women necessarily limits the findings and identifies the need for further research. The sample was drawn from the north east of England which is one of the least diverse areas of England & Wales, with the highest proportion of ‘white British’. Office for National Statistics data: https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/ethnicity/articles/ethnicityandnationali dentityinenglandandwales/2012-12-11#ethnicity-across-the-english-regions-and-wales 4 Thanks to Fiona Vera-Gray for adding this important latter point on recognition of the victim-survivor herself/himself as a person. 5 Thanks to Fiona Vera-Gray for drawing out this latter element of recognition. 6 There are parallels here with the payment of reparations, particularly in the aftermath of conflict, with Noami Roht-Arriaza suggesting that reparations serve as the ‘physical embodiment of a society’s recognition of, and remorse and atonement for, harms inflicted’ (2004: 122). 7 This is not a version of ‘therapeutic justice’ (Erez et al, 2011) which is arguably limited in its framing of survivor interests (Daly, 2014: 387). As Jülich and Landon have suggested, justice can be therapeutic, but justice interests remain distinct from healing (2017: 196). 8 As Fileborn identified in relation to victim-survivors of street harassment (2016). https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/ethnicity/articles/ethnicityandnationalidentityinenglandandwales/2012-12-11#ethnicity-across-the-english-regions-and-wales https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/ethnicity/articles/ethnicityandnationalidentityinenglandandwales/2012-12-11#ethnicity-across-the-english-regions-and-wales 
work_tregl3txqnfhhajvthjymxaxtu	----	Terrorism and Relative Justice promoting access to White Rose research papers White Rose Research Online Universities of Leeds, Sheffield and York http://eprints.whiterose.ac.uk/ This is an author produced version of a paper published in Crime, Law and Social Change. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/5384/ Published paper Findlay, M. (2007) Terrorism and relative justice. Crime, Law and Social Change, 47 (1). pp. 57-68. http://dx.doi.org/10.1007/s10611-007-9054-8 eprints@whiterose.ac.uk http://dx.doi.org/10.1007/s10611-007-9054-8 (Revised – January 2007 – in response to reviewer’s comments.) Terrorism and Relative Justice Mark Findlay1 Introduction This essay explores representations of justice and terror that demonstrate, through the contextual dependence of both phenomena, some under-theorised and largely misconstrued connections. Such relationships tend to explain the less effective or sometimes exacerbating outcomes of certain control responses to terror2. In particular, through the criminalisation of terrorism and the criminal justice processing of control responses, both terrorism and justice are essentially re-interpreted within wider agendas for global governance3. Criminal justice processing of terrorist violence is not exceptional, particularly where jurisdiction is uncontested. Margaret Thatcher declared the Irish para-militaries as ‘criminals’ and internment converted to imprisonment overnight. Timothy McVeigh, judged responsible for the second most deadly terror attack in contemporary US experience was treated as a criminal despite his religiously grounded right-wing ideology. Even, as with the trial of the Lockerbie bombings, where jurisdiction and dominion were complex, a specially constituted criminal justice resolution was a primary control response. This paper is more interested in the ‘post 9/11’ predilection for violent reactions to terrorist incursions. Whether this violence is eventually tempered by a criminal justice context does not diminish the significance of violent retribution as the response of first call. The following ideas are formative and presented in order to stimulate a more detailed empirical examination of the relationships suggested between terrorism and violent justice. The less ambitious agenda for this paper is to identify and outline some critical dimensions of the justice/terror nexus, and to propose possible ways it can be re-imagined so as to sharpen the prospects for both legitimacy and control potential.4 At the outset I disclaim, for the purposes of this paper at least, any direct engagement with the rich literature about state crime as terrorism. Much of this is undervalued in a political climate that would rob terrorism of meaning or would even wrongly equate 1 Professor of Criminal Justice, Law Faculty, University of Sydney; Senior Associate Research Fellow, Institute of Advanced Legal Studies, London University. 2 Braithwaite J. (2005) ‘Pre-empting Terrorism’ Current Issues in Criminal Justice 17/1: 96 3 Discussed more generally in Findlay M. (2006) ‘Governing through Globalised Crime’ (unpublished conference paper). 4 The limits of the paper do not allow for a fully developed critique of contested legitimacies, as these exist in both justice and terror contexts. Suffice to say that misunderstandings about the relativity of justice, and the crude de-legitimisation of terrorism underlie much of the political discourse around the war on terror. an attempt to critically review the abuse of state power, with support for the terrorist project. In addition, while the history of retributive punishment grows out of contexts where justice was terror, and its merciful avoidance added power to judicial authority5, the present paper accepts the justice/punishment alliance. Punishment is often violent, and justice in its retributive form relies on punishment outcomes6. Punishment, be it for deterrence or retribution, is a powerful purpose for justice as it confronts terrorism, in any control strategy. This is not an empirical substantiation of the relationship between terrorism and violent justice responses. There has as yet been insufficient research into such connections, particularly from the perspective of intervention strategies employed by states and alliances to counter real or perceived terrorist threats.7 The discourse on terrorism today, largely journalistic, or political considerations, or ‘insider stories’8, is not well supported by hard data on human and organisational behaviours, or by the manner in which these form patterns and reactions. We would suggest that besides the practical barriers to research in the area, without well-developed theoretical dimensions for analysing this relationship, the discourse remains confined to journalistic assertion and political critique.9 More than this, it might be said that the predominating ‘mythologies’ explored in the rest of this paper deny the necessity in the mind of politicians and governments at least to gain an empirical understanding of this relationship. It suits political discourse rather to deny the existence of any such relationship in the context of legitimate governance. Therefore, if a sound theoretical connection is proffered, the researcher may still battle for access to the data which would enable empirical analysis. This data is all too often concealed within military intelligence and hidden in the partial consciousness of contesting agencies and institutions with a real interest in seeing it remain secret, or misconstrued. 5 For instance see Thompson E.P. (1975) Whigs and Hunters; the origins of the Black Acts, Harmondsworth: Peregrine; Hay D., Linebaugh P and Thompson E.P (1975) Albion’s Fatal Tree, London, Allen and Lane 6 For a critical discussion of this see Braithwaite J. and Pettit P. (1990) Not Just Deserts: A republican theory of criminal justice, Oxford: Clarendon 7 Some exceptions to this are represented by Silke A. (2003) ‘Retaliating Against Terrorism’ in A Silke (ed.) Terrorists, Victims and Society: Psychological perspectives on terrorism and its consequences Chichester: Wiley; 93; Silke A (2003) ‘Fire of Iolaus: The role of state counter-measures in causing terrorism and what needs to be done’ in T. Bjorgo (ed.) Root Causes of Terrorism: Proceedings from an international expert meeting in Oslo Oslo: Norwegian Institute of International Affairs; 179. 8 An example is Heffelfinger C. (2005) Unmasking Terror: A global review of terrorist activities’ Washington: Jamestown Foundation. 9 We are not suggesting that theorising on either component of the relationship is absent. The work of Crenshaw M. ((1994) (ed.) Terrorism in Context ,Pittsburgh: Penn State Press ), Mc Cauley C. ((1991) (ed.) Terrorist research and Public Policy London: Frank Cass ) and Silke .( (2004) ‘The Road Less Travelled: Trends in terrorism research’ in A. Silke (ed)Research on Terrorism: Trends, achievements and failures London: Frank Cass; 186) presents supportive arguments for analysis. What they do not fully achieve is a detailed interrogation of the connections between terror and justice responses in the broadest sense. This does not mean that the empirical enquiry is futile. As the current ‘war on terror’10 lurches from disaster to disengagement, more is becoming known of the utility of violence and its contextualisation, despite the efforts to restrict the flow of knowledge. Electorates, and referential communities are becoming cynical and disenchanted with the perceived wisdom of their ideological champions and therefore are keener to seek out and receive another story. The other story of Guantanamo Bay, of weapons of mass destruction, secret prisons and rendition, of liberation movements in Lebanon, the Sudan and East Timor, and the actual threats of nuclear proliferation, are in the public domain. However, I suspect ‘the facts’ are will remain contested. This being so, the analysts’ task is more than finding and formulating data. It also requires a conscious campaign to counter the misrepresentation of the other side. In this way the empiricist cannot resile from the role of advocate for more reasoned, even if still partial, representation. The paper makes its contribution through the utility of the following dimensions representing important but often unexplored features of the proposed relationship. The application of these dimensions to particular case-studies should offer more than empirical enhancement. The paper will only indicate appropriate contemporary examples of the relationship and suggest foundations for their more detailed exploration. After all, this is the purpose of a theoretical overview. While the discussion to follow remains more philosophical than sociological, more conceptual than historical, it follows that for the theorising to form a foundation of empirical enquiry then the disciplinary influences over that enquiry may also benefit from a more rigorous structure. Such a structure is laid out around the relational dimensions discussed below. The initial dimension is violence, its purposefulness, the relativity of this, and the manner in which both terror and justice interventions employ and justify violent incursion. Implicit in this dimension is the common practice within dominant political alliances, denying purpose to the terrorist, or at least any purpose which can claim rationality, and hence that it is legitimate. The segregation of the purposefulness of violence introduces considerations of legitimacy and with them the foundations of international authority. Further, terrorism becomes redefined not only in terms of its violence, but also more against its mindless or malicious irrationality. This moves into the next dimension, where the meaning of violence is contested in the violent event. Considerations of ‘truth’ naturally follow, as the prize for the contest and the purpose for violence. Truth here is obviously a relative concept and in order that its legitimating potential is resonant across opposing but supportive referent communities, truth is seen to encapsulate common values which bridge the violent divide. In any violent struggle there is the victor and the vanquished. The contemporary political context within which international terrorism and hegemonic justice responses are played out is itself predetermined by victory and subjection in a wider and deeper historical sense. Victor’s justice may pre-determine the authority foundation through 10 For a charting of the post 9/11 ‘war on terror’ see International Peace Research Institute Oslo (2006) Report from the Conference ‘9/11 Five years After: Values, Risk and Identity in the War on Terror’ Oslo: PRIO. which further justice responses are advanced. Terror on the other hand is a response to victor’s justice as much as it is its precipitant. Attendant on ‘victory’ is the ‘morality’ of the struggle. This is also conceptually connected to interpretations of truth and the legitimacy/authority these convey. One of the spoils of victory is vengeance. Crucial for the direction of violent vengeance (in the guise of retributive justice) is the innocent victim, and the monopoly over claims of innocence and the parallel apportioning of guilt. However, as with truth, innocence is both partial and relative. In turn, blame is vehemently contested like any other element of the struggle. The power to apportion blame is evidence of authority, and the resistance against blame in referent communities is a profound challenge to legitimacy. Legitimacy, a binding theme in the struggle for truth over innocence, and to lay blame, is relative to actual communities. Crucial communities for the legitimacy of the justice response in particular, are those who would otherwise be resistant to this authority. They are the alternative audience both to the message of justice and the irrationality of terror. They are the conscience to be won over or at least alienated from the terrorist mission. Essential to the version of justice currently marketed against international terrorism, is the protection of the individual. Victimisation, like citizenship and the right to be protected is primarily individualised. Terror on the other-hand is both discounted and demonised by devaluing the individual and destroying the innocent victim. But this is a more complex dimension of contest. Whose value of whose life are crucial questions, the answers to which further divide justice and terror, in contesting the right to life or its destruction. These dimensions lead back to the image of contest and struggle over legitimacy, authority, versions of truth, rights to innocence and its protection, the power to blame or deny its force, and the price of life. The terrain of distinction, and the prospect of reconciliation and restitution remain over the determination of rationality Purposeful violence11? The utility of justice and terror. The utility of terrorism is something that tends to escape consideration in responding to the violence essential for its existence12. At the same time utilitarian considerations drive retributive and deterrent paradigms for justice responses to terror13. However, it might be seen as too relativist and subjective to confine our conception of terrorism here to claims and counterclaims concerning utility. The same reservations might be directed to measuring terrorism against relative considerations of rationality. Particularly when put against the proportional application of violence in order to 11 For a discussion of the psychologies of terrorist violence see McCauley (2005) The Psychology of Terrorism New York: SSRC 12 See Rotman E. (2000-2001) ‘The Globalisation of Criminal Violence’, in Cornell Journal of Law and Public Policy 10/1:1-43 13 As discussed by Braithwaite J. (2005) ‘Pre-empting Terrorism’, in Current Issues in Criminal Justice 17/1:96-114 achieve stated aims many terrorist endeavours are excessive and irrational against any measure. The quest for an encompassing and more universal definition of terrorism is itself misdirected. Even with their faults, the features of rationality and utility will generate contested meanings for terror depending on the nature of the referent community and the violent acts perpetuated. These communities (proponents and victims) are crucial to the determination of the cause and cost of terrorism. In any dialectical sense there is a need to accept, interrogate and employ the relative meanings and constructions of terrorism. In so doing there is a parallel requirement to discriminate interpretations of terrorism based on purpose and reason. As Tamanaha argues14, any such approach will return the analysis to fact/value debates. Avoiding the relativist limitations of value judging terrorism or justice, we can follow Tamanaha’s invocation to examine value-based interpretations, grounded firmly in the factual experience of actual social situations. In any case, for the purposes of this paper terrorism (and for that matter justice) are not encountered on their own. It is the relationship between terror, and violent justice responses that most clearly requires an appreciation of relativities within particular community contexts. Therefore, the social context of processes such as punishment is as significant to the investigation of this relationship as might be the supervening definitional framework. Retributive international criminal justice focuses on the punishment of prominent perpetrators and if this produces positive consequences for victim communities then it is through the legitimate rendition of vengeance on their behalf, as well as the symbolic significance for future deterrence, indeterminate as this may be. So saying, victims or their communities are not the central focus for international criminal trials15. In matters before the International Criminal Tribunal for the Former Yugoslavia, for instance, there are statutory protections of victim interests but these do not go so far as providing independent victim representation, or formal consideration of victim impact.16 In the show trials of Saddam Husssein and Slobidan Milosovic the prosecutions were presumed to profoundly benefit identified victim communities, as well as potential future victims. There is little empirical evidence that from the victim perspective, beyond collective vengeance, the impact of these trials would be deeply felt, or long- lasting. Therefore, the question remains regarding the foundations of authority for the application of retributive (and eventually violent) justice responses to terrorist acts and actors. 14 See, Tamanaha B. (1997) Realistic Socio-legal Theory : Pragmatism and a social theory of law, Oxford: Clarendon Press 15 This is critically interrogated in Findlay M. and Henham R. (2005) Transforming International Criminal Justice: Retributive and restorative justice in the trial process, Cullompton: Willan 16 Henham R. & Mannozzi G. (2003) ‘ Victim Participation and Sentencing in England and Italy: a legal and policy analysis’ in European Journal of Crime, Criminal Law and Criminal Justice 11:278 It has been recognised that both terrorist acts and their punishment may be interpreted as purposeful violence17. Even so, as the violence associated with punishment increases in its scope and intensity, sometimes approaching the nature of the terrorist act, then its legitimacy18 comes under challenge, if not its utility19. To justify an extreme punishment response, the violence and violent potential of terrorism is highlighted. However, a moral assessment of terrorism in terms of ‘mindless’ violence is compromised by any corresponding excessive violence of punishment, particularly where this has consequences for innocent communities, in a ‘law of war’ scenario. In addition, its ‘mindlessness’ challenges the deterrent impact of violent punishment. Bentham’s ‘less eligibility’ doctrine as a balance between the utility and humanity of punishment risks compromise through the suffering of innocent communities as a consequence of the harm caused from the punishment directed against the terrorist. In this situation the retributive rationale for meeting with violent punishment the violence of the terrorist against the innocent, is also challenged through the commonality of violent reaction. Claims for utility are dependent on the context of the terrorist and the justice response. So that they are not lost in some confusion of subjectivity, these claims need to be reflected against representations of ‘truth’ and ‘fairness’ said to be essential for the legitimacy of justice responses. The morality of truth and fairness here, I would argue, depends on the innocence of victim communities which a justice response is supposed to champion. Innocence in turn is the foundation on which blame, responsibility and resultant punishment may be more objectively constructed. The problem with this is that convincing representations of innocence are also contextually relative20. Contested meanings? The battle for ‘truth’ or the battle over ‘blame’ When it comes to considerations of ‘truth’ in the context of terrorist struggle, the contested nature of truth is obvious if also regularly glossed over. Truth is what the suicide bomber is said to die for and what the military and criminal justice responses are set to protect. Can it be the same truth? Obviously not. Then its relativity becomes a contested objective of the relationship between terror and ‘justice’ responses. This contested reality is an important theme for empirical inquiry. How is the subjectivity of truth here to be managed beyond the force-based authority and supremacy of victor’s justice?21 17 See Butler P. (2003) ‘Foreword: Terrorism and Utilitarianism: Lessons from and for the criminal law’ in Journal of Criminal law and Criminology 93/1: pp.1-22 18 For a discussion of the issue of legitimacy in general see Crenshaw M. (1983) Terrorism, Legitimacy and Power Middletown: Wesleyan. 19 Gross E. (2002-2003) ‘Trying Terrorists – Justification for Differing Trial Rules: The balance between security considerations and human rights’, in Indiana International and Comparative Law Review 13/1:1-97 20 See Gaita R. (2001) ‘Terror and Justice’ in P. Craven (ed) The Best Australian Essays 2001, Melbourne: Black Inc.; pp.19-36 21 There is a need here for a more detailed consideration of Weber’s conditions for the authority of the state. The para-military struggle in Northern Ireland has since the partition and the imposition of British rule, been a struggle over more than political legitimacy. Its violent ferocity on both sides of the sectarian divide and from the forces of the British state is selectively rationalised as the struggle for the truth of Irish nation-hood. True, the triggers for violent events may be religious or cultural bigotry, and the assertion of state authority, but the daily contextual reality of the struggle is contested ‘truths’. In the terrorism/response context (both local and global) it is not so much the nature of truth but its contest which is the connection. The protection of truth is the common justification for the exercise of violence on both sides. Even violent retaliation against say ‘genocide’ through terrorism claims its legitimacy against ‘guilty’ or ‘blameworthy’ violence where truth is at risk. Yet again the relativity of guilt and blame challenge the advance and democratic dominance of a single ‘truth’ on which the justice response relies. The recent conflict in Lebanon where the Israeli military allegedly attacked Hesbolah locations in response to the kidnapping of several Israeli soldiers was a stark interpretation by Israel and the UK and USA at least that truth remains on one side of the battle. This alliance initially resisted the declaration of a cease-fire even in the face of significant and disproportionate casualties because the ‘terrorist violence’ of Hesbolah needed first to desist. Despite the tragic consequences for referent victim communities in Lebanon resulting from the violence of the Israeli ‘justice response’ the alliance conceded no terror there. The same was not the view of international aid agencies and other national, regional and international institutions condemning the violence on both sided in terms of its impact on victim communities. In contest, where responses to terrorism claim the legitimate use of violence, is ‘moral standing’. Those on the other hand who promote re-integrative techniques as against retribution, to more effectively manage original violence, recognise that restorative justice relies on the context of a supportive community if shaming is to be positively applied to offenders.22 Without a supportive context, dependent on a common acceptance of the moral standing of the preferred response, attempts at shaming break down as stigmatic rather than re-integrative. Resort to violence is soon reiterated. However, in the context of terrorism/response relationships moral standing is at the centre of the contest for legitimacy. Reflective communities in which both the terrorist and the justice responses are marketed, may oppose the moral legitimacy of each other. These are communities in part galvanised through resistance to the external and oppositional claims for moral standing.23 Particularly damaging to the justice response is the resistance of terrorist ‘communities’ over the basis of moral standing. Dworking’s components of the moral standing of law (determinacy, integrity, coherence and wholeness24) are difficult for the violent justice response to export when new institutions and processes 22 See Braithwaite J. (1989) Crime Shame and Re-integration Oxford: oxford University Press. 23 Moral standing as a legal/constitutional claim to legitimate voice is discussed in Winter S. (1988) ‘The Metaphor of standing and the Problem of Self Governance’, in Stanford Law Review 40: 1371 24 For a discussion off these see West R. (1999) ‘Taking Moral Argument Seriously’, in Chicago Kent Law Review 74/2:499-562. of incarceration, interrogation, trial and punishment are directed to the terrorist opponent. These novel entities generally contradict or at least strain some of the central protections which make criminal justice in general fair and ‘just’.25 Victor’s justice? The authorised morality. In opening the war crimes tribunal in Nuremburg the US Chief Prosecutor observed: The five great nations flush with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes the Power has paid to Reason26. The Nuremburg and Tokyo trials established the courts (military tribunals) and the criminal trial as the legitimate arena for holding accountable those who the victorious in war determine as responsible for ‘crimes against humanity’. The eventual limitations of the ‘tribunal’ approach, and the emergence of a ‘second order’ justice paradigm which investigates truth and responsibility as opposed to fact and liability, is a feature of the development of international criminal justice.27 Narveson has identified three characteristics of ‘immorality’ in terrorism: • The sense of risk it causes the public at large; • The powerlessness people have from being put at risk; and • The ‘apparent absurdity’ of attacking an innocent (and disengaged) victim for a political goal28. Again, the attribution of morality and immorality relies in part on the ascription of innocence and the status of victimisation. Concepts of ‘risk’, ‘powerlessness’ ‘guilt’, ‘injury’ and ‘blame’, are empowered where awarded on behalf of the innocent victim against the unjustified perpetrator. Terrorist communities become the victims in very similar contexts but from the perspective of victor’s justice little regard is paid to their ‘victimisation’, evolving as a necessary consequence of that justice doing its job. As mentioned above, the ‘morality’ of the justice response (or the terrorist act for that matter) requires either community respect or super-imposed violence (force) to condition its ‘standing’ and ensure compliance. If the claim for standing relies on force rather than respect then the resistance of recipient communities is an important consideration in fashioning the response and expectations for its effectiveness. ‘Standing’ even in the legal, non-metaphysical sense has largely eluded analysis of the terrorism/response relationship. A reason for this is that if ‘standing’ is to have an essential influence over the prosecution of a particular version of truth or justice, then the arena within which it is claimed must be mutually respected. Particularly at this level, the ‘morality’ of victor’s justice is contested by terrorist violence. 25 For a discussion of the detail of these changes in US criminal justice and their impact on due process see, Gross E. (2002) ‘Trying Terrorists – Justification for Differing Trial Rules: The balance between security considerations and human rights’, in Indiana International and Comparative Law Review 13/1:1-98. 26 Quoted in Ferencz B. (2003) ‘The International Criminal Court: The first year and future prospects’, in American Society of International Law Proceedings v. 97: p.259 27 For a deeper discussion of this read Findlay & Henham. (2005) 28 Narvenson J. (2001) ‘Terrorism and Morality’ in R. Frey & C. Morris (eds) Violence, Terrorism and Justice, Cambridge: CUP:pp.116 at 124-125. Credibility does not inextricably attend victory in armed struggle. This realisation, as much as any desire for justice and the rule of law lies behind the transfer of the ‘enemy’ from the battlefield to the tribunal. Paradoxically, the terrorist would hold victory against hegemonic domination in recent military conflict. At the same time the terrorist employs armed struggle in an effort at least to advance a cause to the point where its status in the contest is recognised as meriting a significant (if aberrant) justice response. The ambiguity of violence as both a challenge to and a confirmation of hegemonic domination is widely apparent in the process of redefining statehood on ‘the global periphery’. Here in transitional and separatist ‘states’ where ‘global norms regarding the claims of armed groups to self determination and sovereign state-hood are changing’29 violence is transacted from the status of terrorist coercion to legitimate armed struggle along with the transformation to political legitimacy and global recognition. A difficulty with any dialectic between the terrorist and the legitimate state is the problematic composition of both entities, and not just their contested claims to authority. Conventional political theory, with its focus on the state as an arena and on its agents in domestic politics fails to consider the place of ‘para-politics’ and the ‘deep state’ within the transaction of terrorism.30 Conventional international relations theory with its emphasis on sovereign states as coherent agents of international affairs, largely ignores the ‘states-within-states’ which are a feature of terrorist engagement in many transitional political and cultural locations. Para-politics by contrast is the consideration of ‘divided sovereignty’ with features such as illegal trade, substitute taxation, alternative ‘armies’ and mechanisms of violence. These operate beyond the reach of conventional state authority and as in Lebanon, may benefit from significant if clandestine sponsorship with the official organs of the state. These ‘deep-states’ make the discourse of ‘victor’s justice’ and ‘us-and-them’ retaliatory control strategies anything but clear. Victims’ vengeance? The partiality of innocence. It is the image of the victim that drives both the terrorist act and the justice response. Who has the legitimate claim to innocence is another matter in contest. The perspective from which it might be resolved depends essentially on relationships of violence which determine who is revenging whom. In this regard the connection is not only between the terrorist and the justice response but also between each and their respective ‘victim communities’. With no shared (if not common morality), and a resultant relativity in justice as a justification for violent response31, the struggle regresses to issues of guilt and 29 For a discussion of separatist states and their application of violence to early state-formation see Reno W. (2006) ‘Redefining Statehood in the Global Periphery’ (unpublished conference paper). 30 For a discussion of both concepts see Tunander O. (1997) Geo-politics in Post Wall Europe: Security, Territory and Identity London: Sage. 31 Up until now I have been connecting justice and violence in a fairly casual and erratic fashion. It is useful to recall particular forms of punishment as the legitimate inclusion of violence in justice. innocence. However, as where due process at least uniformly evidences criminal justice, guilt is a consequence of the most convincing prosecution, and innocence is more a failure of proof than an absolute state. Even where the innocent victim is claimed as the vindication for violent vengeance, it is the guilt of the combatant which is more likely to move the violent response, than any deep empathy for the victim’s situation. From this, violent retribution and deterrence feature more apparently in the global ‘war against terror’ than does any return to broader interests of human security.32 Violent punishment as a feature of the justice response will comfort one victim community while at the same time alienating and enraging others. The divergent reception of such violent punishment either as justice or state terror, is determined by support or at least tolerance from one community, and the resistance of others. In some respects this mirrors the localised re-interpretation of political corruption against a wider contest for democratic legitimacy. For example, the recent history of ‘democratic’ presidential electioneering in the Philippines has been a history of moral paradox. The wider community and their political representatives are declared opposed to illegal lottery gambling (jueteng) and yet it was the slush funds behind the lottery that bank-roles presidential campaigning.33 The electorate understands this corruption as much as it tolerates the lottery. The intersection is blatant and recurrent. It is only when this corruption spills over into violent reprisals or is exposed by political rivals that the power of community neutralisation gives way to calls for reform. Communities of Resistance? The alternative audience. In the terror/justice nexus, communitarian considerations do not feature anywhere to the same extent as does individual responsibility, outside the setting of terrorist victimisation. But one of the most significant dangers in ignoring communitarian interests when analysing terrorism and justice, is to confound and confuse the importance of resistance. Terrorism defined as political struggle rather than mindless evil, gains its credibility from support communities34. These communities galvanise around the terrorist cause (if not the terrorist act): • First in recognising the terrorist as the representative of their claims for vengeance and justice; • Next as supporting the terrorist cause in resisting ‘unjust’ justice responses; and • Finally, legitimating the ongoing terrorist struggle through resisting the imposition of competing and contested meanings about justice and terror. This process of neutralisation/legitimation may even involve flirtation with organised criminal enterprise enforced through violence as a means to maintain economic 32 For a discussion of the potentials in a ‘human security’ approach to the pressures resultant from social development (often argued as fertile ground for terrorism) see Jones J. (2004) ‘Human Security and Social Development’ in Denver Journal of International law and Policy 33/1:92-103. 33 For a discussion of this history see McCoy A. (2006) ‘Invisible Industry: Jueteng Gambling and Philippine Politics’ (unpublished conference paper). 34 The importance of victim communities as referents for terrorism is discussed in Silke A (2003) (ed) Terrorists, Victims and Society: Psychological perspectives on terrorism and its consequences Chichester: Wiley. viability and to attack the social cohesion of rival states. Therefore, for instance, the recent opening up of drug trafficking routes from Afghanistan, through Tajikistan and into Russia has been fostered through unwholesome alliances between a fragile producer state, a compromised international presence, an unstable and economically non-viable transit state, and a well developed organised crime market in the reception state.35 Each referent community along the way, and their governments, employ the negative back-drop of global political domination and economic/cultural imperialism as in part justifying what might otherwise be more objectively condemned. Another consequence of ignoring the subjective meaning of resistance in ‘terrorist communities’ is that the potential to reverse the bonds of cohesion as part of the justice response will be overlooked in favour of punitive attacks on legitimacy. It is throughout the experience of social exclusion in general, that genuine and creative attempts to engage with oppositional communitarian meanings and to counter resistance through positive rather than negative interaction, can diminish or even reverse competing legitimacies. Justice requires an audience. Punishments’ significant others36 may either justify and reward violence exercised in their stead, or alternatively reject violent punishment as a further injustice against the innocent. Another important consideration for the nature and legitimacy of the justice response is to turn communities of resistance to the conviction of ‘not in our name’. No community is homogeneous and even those clustered around a defensive or resistant ideology may at least divide around degrees of acceptable violence. If the justice response can expose (rather than emulate) the excessive violence of the terrorist act then such communities should fragment over the justification for violence and its alternative realities. The susceptible segments of these communities may become unwilling to legitimate terrorism in their name if it is clearly portrayed as excessive, disproportionate or ungoverned violence. Primacy of the Individual? The value of life. Understandings of terrorism and its motivations, particularly of suicide bombing are often muddied by misconceptions over the value of life. The suicide bomber is dehumanised by accusations of having no respect for the lives of innocent victims. More so, the self-centredness of the act is emphasised through mocking the rewards of martyrdom. As with the earlier discussion of contested meanings, restricting the representation of victim communities to the dead and injured from a suicide bomb, ignores the more powerful justification for the terrorist act, that being revenge for other communitarian interests. In the words of one of the co-conspirators in the bombing of the World Trade Centre in 1993: The American people must know that their civilians who got killed are no better than those who are getting killed by American weapons and support37. 35 This is well documented in Paoli L., Rabkov I. & Reuter P. (2006) ‘Heroin Trafficking in Tajikistan: A case-study in the interaction of weak government and illegal markets’ (unpublished conference paper) 36 These may be both significant individuals, or referential communities. 37 Parachini J. (2001) ‘Religion isn’t Sole Motivation of Terror’, in LA Times 16/9/2001: M7 The respect for human life is impugned against the suicide terrorist who sacrifices himself and takes along the innocent victim as well. With the protection of human life as an essential motivation broadcast with the justice response, the terrorist’s apparent disregard for individual and general deterrence denies the instrumentalist potential of the ultimate punishment. Where the terrorist rejects the influence of punishment, only the lives and futures of the communities of resistance remaining become bargaining currency if deterrence continues crucially connected to individualised notions of the value of life. The ‘law of war’ which features both in terrorist ideology and in unique justice responses to global terror, recognises the utilitarian justifications for sacrificing the innocent. Yet, on which side the sacrifice should be made in order that it is represented as either ‘friendly fire’ or terrorist atrocity, presents a subjective evaluation even of the sanctity of human life. Maintaining Dichotomies? The ‘us and them’ story. Definitions of terrorism as illegal and immoral, and representations of terrorists as irrational and inhumane, perpetuate the essential divide between good and evil, war and terror, legal and illegal, so essential for the ‘righteousness’ of a justice response. However, it is important to contest these dualities if justice control strategies are to avoid further galvanising the divide which in turn justifies terrorist communities: In the absence of specific evidence to the contrary, it is reasonable to impute to terrorism no lesser rationality than that which social analysts routinely ascribe to other actors and which, in any event, is requisite for the conduct of their operations. Rational agents are not systematically unable to distinguish efficacious from inefficacious activities38. Dichotomies also lie at the heart of definitions which see terrorism as illegitimate ‘war’, aberrant politics, or misguided morality: Lomsky continues: …any purported definition of terrorism will itself be laden with moral and political baggage. Most individuals who employ violent means in their political activities prefer to speak of themselves as ‘urban guerrilla’, ‘revolutionary’ or some such. Thus the bromide ‘one person’s terrorist is another’s freedom fighter’. One need not accede to the implied relativism to acknowledge the absence of firm and generally accepted criteria of application for ‘terrorism’ and its cognates39. From this too can be drawn a more complex image of the terrorist struggle and the ‘corrective’ response, beyond the realm of bilateral military analogy. This is not simply a tension between states or separatists, cultures or counter-cultures, ideologies and hegemonic alliances. It is, through terrorist violence and the violent ‘justice’ response that the democratic state and the ‘deep state’ contest. It is where the ‘deep state’ employs terrorist violence (and its infra structure and foot soldiers), as a 38 Lomasky L. (1991) ‘The Political Significance of Terrorism’ in R. Frey & C. Morris (eds) Violence, Terrorism and Justice, Cambridge: CUP:pp.86-115 at 87 39 Lomasky (1991): pp.86-87 precursor to manipulating the justice response to confuse and violently undermine democracy as the functional authority for apparent state governance.40 The suggestions that there can be, or are meaningful relationships between terrorism and justice responses verges on the heretical in a political climate where truth is no longer marketed as relative, justice is only subject to a single ‘democratic’ morality, blame travels in only one direction and innocence crosses no violent divide. Yet, this simple and singular political reality seems incapable of promoting easy effective or lasting victories in the war on terror. Such may depend on a more realistic recognition of the place of violence in struggles for global governance that recognises and explores symmetries as well as difference. 40 Recent histories of ‘deep state’ subversion are contained in Tunander O. (2006) ‘Democratic State vs Deep State Approaching the Dual State of the West’ (unpublished conference paper). (Revised – January 2007 – in response to reviewer’s comments.) Terrorism and Relative Justice Introduction Purposeful violence ? The utility of justice and terror. Contested meanings? The battle for ‘truth’ or the battle over ‘blame’ Victor’s justice? The authorised morality. Victims’ vengeance? The partiality of innocence. Communities of Resistance? The alternative audience. Primacy of the Individual? The value of life. Maintaining Dichotomies? The ‘us and them’ story. 
work_trtwjpkxfzdlpjbeftadkqhg4u	----	��� Crime and Justice serious crimes of serious assault, sexual assault, robbery or housebreaking. The Sexual Offences Act 2003, introduced in May 2004, altered the definition and coverage of sexual offences. In particular, it redefined indecent exposure as a sexual offence, which is likely to account for much of the increase in sexual offences. Further information is available from Crime in England and Wales 2007/2008 (Home Office, Sian Nicholas, Chris Kershaw and Alison Walker, editors). Court proceedings and police cautions (Tables 11.4–11.8, 11.13–11.17, 11.20–11.22) The statistical basis of the tables of court proceedings is broadly similar in England and Wales, Scotland and Northern Ireland. The tables show the number of persons found guilty, recording a person under the heading of the principal offence of which he/she was found guilty, but excluding additional findings of guilt at the same proceedings. A person found guilty at a number of separate court proceedings is included more than once. The statistics on offenders cautioned in England and Wales cover only those who, on admission of guilt, were given a formal caution by, or on the instructions of, a senior police officer as an alternative to prosecution. Written warnings given by the police for motor offences and persons paying fixed penalties for certain motoring offences are excluded. Formal cautions are not issued in Scotland. There are no statistics on cautioning available for Northern Ireland. The Crime and Disorder Act 1998 provides for reprimands and final warnings, which are new offences and orders implemented nationally from 1 June 2000. They replace the system of cautioning for offenders under the age of 18. Reprimands can be given to first-time offenders for minor offences. Any further offending results in either a final warning or a charge. For persons proceeded against in Scotland, the statistics relate to the High Court of Justiciary, the sheriff courts and the district courts. The High Court deals with serious solemn offences (requiring trial by jury) and has unlimited sentencing power. Sheriff courts deal with solemn offences where imprisonment is limited to 3 years or summary offences (not requiring a jury) where imprisonment is limited to 3 months (6 months when specified in legislation for second or subsequent offences and 12 months for certain statutory offences). District courts deal only with summary cases and are limited to 60 days imprisonment and level 4 fines. Stipendiary magistrates Crime and Justice There are differences in the legal and judicial systems of England and Wales, Scotland and Northern Ireland which make it impossible to provide tables covering the UK as a whole in this section. These differences concern the classification of offences, the meaning of certain terms used in the statistics, the effects of the several Criminal Justice Acts and recording practices. Recorded crime statistics (Table 11.3) Crimes recorded by the police provide a measure of the amount of crime committed. The statistics are based on counting rules, revised with effect from 1 April 1998, which are standard for all the police forces in England, Wales and Northern Ireland. They now include all indictable and triable- either-way offences together with a few summary offences which are closely linked to these offences. The new rules have changed the emphasis of measurement more towards one crime per victim and have also increased the coverage of offences. These changes have particularly impacted on the offences of violence against the person, fraud and forgery, drugs offences and other offences. For a variety of reasons many offences are either not reported to the police or not recorded by them. The changes in the number of offences recorded do not necessarily accurately reflect the changes in the amount of crime committed. In order to further improve the consistency of recorded crime statistics and to take a more victim oriented approach to crime recording, the National Crime Recording Standard (NCRS) was introduced across all forces in England, Wales and Northern Ireland with effect from 1 April 2002. Some police forces implemented the principles of NCRS in advance of its introduction across all forces. The NCRS had the effect of increasing the number of offences recorded by the police. Similarly, the Scottish Crime Recording Standard (SCRS) was introduced by the eight Scottish police forces with effect from 1 April 2004. This means that no corroborative evidence is required initially to record a crime-related incident as a crime if so perceived by the victim. Again, the introduction of this new recording standard was expected to increase the numbers of minor crimes recorded by the police, such as minor crimes of vandalism, minor thefts, offences of petty assault and breach of the peace. However, it was expected that the SCRS would not have much impact on the figures for the more ��� Crime and Justice sit in Glasgow District Court and have the summary sentencing powers of a sheriff. In England and Wales, indictable offences are offences which are: • triable only on indictment. that is by the Crown Court. (‘indictable-only’ offences include murder, manslaughter, rape and robbery) • triable either way. that is by the Crown Court or a magistrates’ court The Criminal Justice Act 1991 resulted in the following changes being made to the sentencing system in England and Wales: • the introduction of combination orders • the introduction of the ‘unit fine scheme’ at magistrates’ courts • the abolition of the sentence of detention in a young offender institution for 14-year-old boys and to a change in the minimum and maximum lengths of sentence to 10 and 12 months respectively to which 15 to 17-year-olds might be subjected, and • the abolition of partly suspended sentences of imprisonment and to a restriction in the use of fully suspended sentences The Criminal Justice Act 1993 abolished the unit fine scheme in magistrates’ courts, which had been introduced under the Criminal Justice Act 1991. A charging standard for assault was introduced in England and Wales on 31 August 1994, the aim being to promote consistency between the police and prosecution on the appropriate level of charge to be brought. The Criminal Justice and Public Order Act 1994 created several new offences in England and Wales, mainly in the area of public order, but also including male rape (there is no statutory offence of male rape in Scotland, although such a crime may be charged as serious assault). The Act also: • extended the provisions of section 53 of the Children and Young Persons Act 1993 to 10 to 13-year-olds • increased the maximum sentence length for 15 to 17-year- olds to 2 years • increased the upper limit from £2,000 to £5,000 for offences of criminal damage proceeded against as if triable only summarily • introduced provisions for the reduction of sentences for early guilty pleas and • increased the maximum sentence length for certain firearm offences Provisions within the Crime (Sentences) Act 1997 (as amended by the Powers of Criminal Courts Sentencing Act 2000) in England and Wales, and the Crime and Punishment (Scotland) Act 1997 allow for: • an automatic life sentence for a second serious violent or sexual offence unless exceptional circumstances exist (this provision has not been enacted in Scotland) • a minimum sentence of 7 years for an offender convicted for a third time of a ‘class A’ drug trafficking offence unless the court considers this to be unjust in all the circumstances, and • in England and Wales, section 38A of the Magistrates’ Courts’ Act 1980 (which extends the circumstances in which a magistrates’ court may commit a person convicted of an offence triable-either-way to the Crown Court for sentence) was implemented in conjunction with section 49 of the Criminal Procedure and Investigations Act 1996 (when the magistrates’ court requires a defendant to indicate a plea before a decision can be taken on the mode of trial and which compels the court to sentence or commit for sentence any defendant who indicates a guilty plea) Under the Criminal Justice and Court Service Act 2000 new terms were introduced for certain orders. ‘Community rehabilitation order’ is the new name given to a probation order. A community service order is now known as a ‘community punishment order’. Finally, the new term for a combination order is ‘community punishment and rehabilitation order’. In April 2000 the secure training order was replaced by the ‘detention and training order’. Section 53 of the Children and Young Persons Act 1993 was repealed on 25 August 2000 and its provisions re-enacted in sections 90 to 92 of the Powers of Criminal Courts (Sentencing) Act 2000. ‘Reparation and action plan orders’ were implemented nationally from 1 June 2000. ‘Drug treatment and testing orders’ were introduced in England, Scotland and Wales with effect from October 2000. ‘Referral orders’ were introduced in England, Scotland and Wales with effect from April 2000. These changes are now reflected in Table 11.8. Following the introduction of the Libra case management system during 2008, offenders at magistrates’ courts can now be recorded as sex ‘Not Stated’. In 2008 one per cent of offenders sentenced were recorded as sex ‘Not Stated’. Amendments to the data tables have been made to accommodate this new category. ��� Crime and Justice The system of magistrates’ courts and Crown Courts in Northern Ireland operates in a similar way to that in England and Wales. A particularly significant statutory development, however, has been the Criminal Justice (NI) Order 1996, which introduces a new sentencing regime to Northern Ireland and largely replicates that introduced to England and Wales by the Criminal Justice Acts of 1991 and 1993. The order makes many changes to both community and custodial sentences and introduces new orders such as the combination order, the custody probation order, and orders for release on licence of sexual offenders. Expenditure on penal establishments in Scotland (Table 11.19) The results shown in this table are reported on a cash basis for financial years 1996/97 to 2000/01 in line with funding arrangements. Financial year 2001/02 is reported on a resource accounting basis in line with the introduction of resource budgeting. Capital charges were introduced with resource accounting and budgeting. 167 Crime and justice 11.1 Police Officer Strength1: by countr y and sexAs at 31 March Numbers 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 England and Wales Regular Police(FTE) Strength: Men KERB 103 956 101 801 102 139 104 483 106 996 110 150 110 597 109 327 108 118 106 866 106 996 Women KERC 19 885 20 155 21 174 22 784 24 430 26 956 28 898 30 307 31 914 32 861 34 651 Seconded:2,3 Men KERD 2 017 1 965 1 914 2 031 1 689 1 811 1 514 1 545 422 432 438 Women KERE 238 249 292 305 251 284 222 203 60 70 66 Additional Officers:4 Men KERF 324 361 493 567 375 394 522 676 657 661 653 Women KERG 582 519 509 564 709 969 1 042 1 213 1 203 1 471 1 470 Special constables Strength:5 Men KERH 10 860 9 623 8 630 8 014 7 718 7 645 8 074 8 829 9 327 9 719 9 544 Women KERI 5 624 4 724 4 108 3 584 3 319 3 343 3 844 4 350 4 694 4 828 4 707 Scotland Regular police Strength:6 Men KERK 12 545 12 374 12 547 12 513 12 590 12 685 12 798 12 820 12 687 12 532 12 328 Women KERL 2 265 2 325 2 602 2 738 2 897 2 898 3 203 3 401 3 547 3 689 3 991 Central service:7 Men KERM 88 95 87 116 131 166 195 171 153 219 180 Women KERN 9 13 10 12 17 29 29 21 28 44 37 Seconded:8 Men KERO 85 130 140 133 166 192 216 200 195 196 291 Women KERP 12 18 14 18 24 30 31 27 28 30 69 Additional regular police: Men HFVM 85 80 83 80 79 88 79 85 107 106 129 Women HFVN 6 4 5 12 10 13 21 15 12 14 24 Special constables Strength: Men KERS 1 229 981 924 812 711 773 718 888 886 884 .. Women KERT 422 355 336 307 280 328 437 432 471 510 .. Nor thern Ireland Regular police9,10 Strength: Men KERU 7 406 6 844 6 227 6 057 6 171 6 108 6 016 5 992 5 949 5 761 5 669 Women KERV 987 966 1 009 1 080 1 266 1 418 1 547 1 534 1 600 1 653 1 735 Reser ve11 Strength: Men KERW 3 199 2 962 2 629 2 223 1 983 1 824 1 431 1 424 1 212 1 119 930 Women KERX 641 607 556 510 453 485 410 402 400 382 345 1 Figures for England and Wales are as 31 March and are based on full-time equivalent strength excluding those on career breaks or maternity/pater ntiy leave . Figures for Scotland are as 31 March. From 1999, figures for North- ern Ireland reflect the position at the end of the financial year, ie 1999 and 2000 figures are as 31 March 2000 and 31 March 2001 respectively. Prior to this figures were as at 31 December. 2 Figures exclude secondments outside the police service in England and Wales (eg to the private sector or to law enforcement agencies overseas). 3 From 31 March 2007 onwards details of officers seconded to NCIS and NCS will no longer appear following the launch of Serious Organised Crime Agency (SOCA) in April 2006. 4 Figures include those officers on career breaks or maternity/pater nity leave . Pr ior to 2003, these figures were not collected centrally. 5 Special constable figures are given as a headcount measure. 6 ’Strength’ is WTE police strength, only excluding special constables. 7 Instr uctors at Training Establishments, etc, for merly shown as secondments. 8 Includes Scottish Crime and Drug Enforcement Agency . 9 Does not include officers on secondment. 10 Also includes student officers. 11 Includes par t-time reser ve and full-time reserve , FTR -515 as at 31 March 2009 (481 males and 34 females). Con PT - 760 as at 31 March 2009 (449 males and 311 females). FTR -382 as at 31 March 2010 (362 males and 20 females) Con PT -703 as at 31 March 2010 (412 males and 291 female) Sources: Home Office: 020 7035 0289; Scottish Government Justice Department: 0131 244 2148; The Police Service of Norther n Ireland: 0845 6008000 ext 24070 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_1.xls 168 Crime and justice 11.2 Prison Population1 international comparisons Rate16 per 100,000 % change population in Countr y 2001 2002 2003 2004 2005 2006 2007 2006-2007 2007 England & Wales5 67 056 71 324 72 992 75 057 76 896 79 085 80 692 2 149 Nor thern Ireland3 910 1 026 1 160 1 274 1 301 1 433 1 468 2 83 Scotland7 6 137 6 404 6 524 6 805 6 792 7 111 7 291 3 142 Austr ia 6 915 7 511 7 816 9 000 8 767 8 780 8 887 1 107 Belgium12 8 544 8 605 9 308 9 245 9 375 9 635 10 008 4 94 Bulgar ia3 8 971 8 994 9 422 10 066 10 871 11 436 11 058 -3 144 Croatia3 2 623 2 584 2 732 2 803 3 022 3 485 3 833 10 86 Cyprus 369 345 355 546 536 599 673 12 85 Czech Republic6 19 320 16 213 17 277 18 343 18 937 18 578 18 901 2 182 Denmark 3 150 3 439 3 577 3 762 4 132 3 759 3 406 -9 62 Estonia3 4 803 4 775 4 352 4 576 4 565 4 411 4 327 -2 322 Finland6 3 110 3 469 3 463 3 535 3 883 3 477 3 370 -3 64 Fr ance10 47 005 53 463 57 440 56 271 56 595 55 754 60 677 9 95 Ger many4 80 333 74 904 81 176 81 166 80 410 78 581 75 719 -4 92 Greece9 8 343 8 284 8 555 8 760 9 589 10 113 10 700 6 96 Hungar y6 17 275 17 838 16 507 16 543 15 720 14 821 14 353 -3 143 Iceland 110 107 112 115 119 119 115 -3 37 Ireland (Eire)13 3 025 3 028 2 986 3 083 3 022 3 080 3 325 8 76 Italy6 57 203 56 723 56 845 56 068 59 523 39 005 48 693 25 82 Latvia3 8 831 8 531 8 366 8 179 7 646 6 965 6 548 -6 287 Lithuania3 9 516 11 566 11 070 8 063 8 125 8 137 8 079 -1 239 Luxembourg 357 380 498 548 693 756 745 -1 155 Malta11 257 283 278 277 298 346 387 12 95 Nether lands 15 246 16 239 18 242 20 075 21 826 20 463 18 103 -12 110 Norway 2 666 2 662 2 914 2 975 3 097 3 164 3 280 4 69 Poland5 80 004 80 610 80 692 79 344 82 656 87 669 90 199 3 237 Portugal6 13 260 13 918 13 835 13 152 12 889 12 636 11 587 -8 109 Romania6 49 840 48 081 42 815 39 031 36 700 34 038 29 390 -14 137 Russian Federation3 925 072 980 151 877 393 847 004 763 115 823 451 871 693 6 613 Slovakia6 7 433 7 758 8 873 9 422 8 897 8 249 7 986 -3 148 Slovenia 1 155 1 120 1 099 1 126 1 132 1 301 1 336 3 66 Spain 46 962 50 994 55 244 59 224 61 269 64 120 66 400 4 148 Sweden15 6 089 6 506 6 755 7 332 7 054 7 175 6 770 -6 74 Switzer land14 5 137 4 937 5 214 5 977 6 137 5 888 5 715 -3 76 Turkey 61 336 60 091 64 051 71 148 54 296 67 795 85 865 27 122 Ukraine 198 885 198 946 198 386 193 489 179 519 165 716 154 055 -7 332 Australia2 22 458 22 492 23 555 24 171 25 353 25 790 27 224 6 130 Canada8 35 533 35 736 35 868 34 155 34 365 35 110 - - 108 Japan3 61 242 65 508 69 502 73 734 76 413 79 052 81 255 3 63 Korea(Rep. of)7 62 235 61 084 58 945 57 184 52 403 46 721 46 313 -1 96 Mexico6 165 687 172 888 182 530 193 889 205 821 210 140 212 841 1 193 New Zealand7 5 887 5 738 6 059 6 556 7 100 7 595 7 959 5 188 South Africa4 170 959 178 998 189 748 187 640 187 394 150 302 161 639 8 339 U.S.A.2 1 961 247 2 033 331 2 081 580 2 129 802 2 186 230 2 245 189 2 299 116 2 762 European Union 27 581 419 592 331 607 522 609 873 620 099 601 513 611 078 2 123 1 At 1 September : number of prisoners, including pre-trial detainees/remand pr isoners. 2 At 30 June. 3 At 1 Januar y. 4 At 31 March. 5 At 31 August. 6 At 31 December. 7 Annual averages. Countr ies calculate these on the basis of daily, weekly or monthly figures. 8 Annual averages by financial year (e.g. 2006=1 April 2005-31 March 2006). Rate per 100,000 population reflects the position in 2006. 9 At 1 September (2001-03, 2005-06). At 16 December (2004). At 30 June (2007). 10 Metropolitan and overseas departments and territor ies. 11 At 1 September (2001-06). Annual average (2007). 12 At 1 March. 13 At 1 September (2001-06). At 26 October (2007). 14 At third Wednesday in March (2001). At first Wednesday in September (2002-07). 15 At 1 October. 16 Based on estimates of national population. Sources: Ministries responsible for prisons, national prison administrations; national statistical offices, Council of Europe Annual Penal Statistics (SPACE); World Prison Population List and Wor ld Pr ison Br ief; (Inter national Centre for Prison Studies King’s College, London) http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_2.xls 169 Crime and justice 11.3 Recorded crime statistics: by offence group 1 England and Wales Thousands 1997 19982,3 1999 2000 20014 20024,6 2003 2004 2005 20068 2007 2008 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Violence against the person BEAB 250.8 230.8 LQMP 581.0 600.9 650.3 845.1 967.2 1 048.1 1 059.6 1 046.4 961.1 903.4 Sexual offences7 BEAC 33.2 34.9 LQMQ 37.8 37.3 41.4 58.9 62.5 62.9 62.1 57.5 53.5 51.4 Burglar y BEAD 1 015.1 951.9 LQMR 906.5 836.0 878.5 890.1 820.0 680.4 645.1 622.0 583.7 581.5 Robber y BEAE 63.1 66.2 LQMS 84.3 95.2 121.4 110.3 103.7 91.0 98.2 101.4 84.7 80.1 Theft and handling stolen goods (of which): BEAF 2 165.0 2 126.7 LQMT 2 223.6 2 145.4 2 267.0 − − − − − − − Offences against vehicles I8RM .. .. .. 1 074.7 985.0 820.1 792.8 765.0 656.4 591.9 Other theft offences I8RN .. .. .. 1 336.9 1 327.9 1 247.6 1 226.2 1 180.8 1 121.0 1 080.0 Fr aud and forger y BEAG 134.4 173.7 LQMU 334.8 319.3 314.9 331.1 319.6 280.1 232.8 199.7 155.3 163.1 Cr iminal damage BEAH 877.0 834.4 LQMV 945.7 960.1 1 064.5 1 120.6 1 218.5 1 197.5 1 184.3 1 185.0 1 036.2 936.4 Dr ug offences5 LQMO .. 21.3 LQYT 121.9 113.5 121.3 143.3 143.5 145.8 178.5 194.2 229.0 243.4 Other offences5 BEAI 36.6 42.0 LQYU 65.7 63.2 65.3 64.0 65.7 64.0 75.6 75.7 69.3 69.4 Total BEAA 4 598.3 4 481.8 LQYV 5 301.2 5 170.8 5 527.1 5 975.0 6 013.8 5 637.5 5 555.2 5 427.6 4 951.2 4 702.5 1 See chapter text. 2 Estimates. 3 Figures from this period are not directly comparable with data prior to 1998/99 and from 2002/03 onwards. 4 The National Crime Recording Standard (NCRS) was introduced in Eng- land and Wales from 1 April 2002. These figures are not directly compara- ble with those for earlier years. 5 Prior to 1 April 1998 the offence of drug trafficking was included in the ’Other offences’ group. From 1 April 1999, under the new counting rules, drug traffick- ing became part of a new ’Dr ug offences’ group which, now also includes pos- session and other drug offences. 6 Includes the British Transpor t Police (BTP) from 2002/03 onwards. 7 The Sexual Offences Act 2003, introduced in May 2004, altered the definitions and coverage of sexual offences. 8 The offence groupings were revised in 2006/07 and backdated to 2002/03. Source: Home Office: 020 7035 0307 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_3.xls 170 Crime and justice 11.4 Offenders found guilty: by offence group 1,2,3, England and Wales Magistrates’ courts and the Crown Court Thousands 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20086 All ages4 Indictable offences Violence against the person: KJEJ 37.1 35.7 35.3 35.3 37.7 38.0 39.1 40.9 41.9 42.0 41.5 Murder KESB 0.3 0.3 0.3 0.3 0.3 0.3 0.4 0.4 0.4 0.4 0.4 Manslaughter KESC 0.3 0.2 0.2 0.3 0.3 0.2 0.3 0.3 0.2 0.2 0.2 Wounding KESD 35.2 33.9 33.5 33.5 35.7 35.9 36.9 38.6 39.8 39.8 39.3 Other offences of violence against the person KESE 1.3 1.4 1.3 1.2 1.4 1.6 1.6 1.6 1.5 1.5 1.5 Sexual offences KESF 4.6 4.3 3.9 4.0 4.4 4.4 4.8 4.8 4.9 5.1 5.1 Burglar y KESG 30.8 29.3 26.2 24.8 26.7 25.7 24.3 23.0 23.0 23.8 23.9 Robber y KESH 5.5 5.6 5.9 6.8 7.7 7.3 7.5 7.1 8.1 8.8 8.5 Theft and handling stolen goods KESI 125.7 131.2 128.0 127.0 127.3 119.1 110.6 103.8 99.0 106.0 110.9 Fr aud and forger y KESJ 19.8 20.3 19.2 18.3 18.1 18.0 18.1 18.5 18.2 19.9 19.8 Cr iminal damage KESK 10.9 10.9 10.3 10.7 11.0 11.2 11.7 11.7 12.7 12.5 9.6 Dr ug offences KBWX 48.8 48.7 44.6 45.6 49.0 51.2 39.2 39.1 39.6 44.6 52.9 Other offences (excluding motor ing) KESL 49.6 47.9 44.5 44.0 48.0 51.4 54.5 53.1 50.0 45.3 40.1 Motor ing offences KESM 9.0 8.1 7.6 7.7 8.2 8.7 8.0 6.6 5.9 5.4 4.5 Total KESA 341.7 342.0 325.5 324.2 338.3 335.1 317.8 308.5 303.2 313.3 316.9 Summar y offences Summar y assaults KESO 35.3 37.5 37.4 37.7 40.7 45.6 53.4 60.4 64.5 68.9 67.7 Offences against Public Order JW94 31.3 30.8 29.8 28.6 29.0 31.0 33.5 32.6 34.9 38.7 37.0 Firear ms Acts JW95 0.5 0.4 0.4 0.3 0.3 0.3 0.5 0.8 0.6 0.7 0.5 Interference with a motor vehicle JW96 2.7 2.8 2.6 2.6 2.6 2.6 2.5 2.4 2.3 2.3 1.9 Stealing or unauthorised taking of a conve yance JW97 6.9 7.5 7.0 6.9 7.2 6.6 5.9 5.2 4.8 4.6 3.9 Social Security Offences JW98 5.9 5.0 6.5 7.5 6.8 7.0 6.9 6.3 4.0 3.3 3.4 Intoxicating Liquor Laws: Dr unkenness KESR 30.8 28.7 27.2 26.2 26.9 27.7 21.1 16.1 15.7 17.4 18.9 Education Acts KEST 5.0 5.1 5.1 5.6 5.8 5.8 6.5 6.4 7.4 8.4 8.5 Summar y offences of criminal Cr iminal Damage - £5,000 or less KESW 26.5 27.9 28.0 26.9 28.3 29.8 31.5 31.1 30.2 32.1 33.3 Offences by prostitutes KESX 5.2 3.4 3.4 2.8 2.7 2.6 1.7 1.1 0.7 0.5 0.5 TV licence evasion KETC 76.6 55.8 105.7 83.8 96.6 79.9 89.3 105.0 115.5 121.0 122.0 Motor ing offences (summary) KETA 665.2 632.9 607.5 583.3 595.8 662.6 707.9 667.1 622.5 611.1 552.2 Other summary non-motor ing offences JX2K 236.0 228.8 237.5 213.2 240.3 254.6 270.1 241.6 215.0 193.6 196.5 Total KESN 1 128.00 1 066.50 1 098.20 1 025.50 1 083.00 1 156.10 1 230.70 1 175.90 1 118.20 1 102.60 1 046.30 Persons aged 10 to under 185 Indictable offences Violence against the person: KETF 6.0 6.0 6.4 6.9 6.9 6.6 6.9 7.4 7.5 7.7 7.4 Wounding KBXC 5.9 5.9 6.3 6.8 6.8 6.5 6.8 7.3 7.4 7.6 7.3 Other offences of violence against the person KCAA 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 Sexual offences KETG 0.5 0.5 0.5 0.5 0.6 0.4 0.6 0.6 0.5 0.5 0.5 Burglar y KETH 8.5 7.8 6.8 6.3 6.4 5.8 5.9 6.0 6.2 6.1 5.4 Robber y KETI 2.2 2.0 2.2 2.8 2.8 2.6 3.0 3.1 3.7 4.1 3.6 Theft and handling stolen goods KETJ 21.9 22.7 21.0 20.6 18.4 16.5 16.8 17.1 16.3 18.2 16.0 Fr aud and forger y KETK 1.0 1.1 1.0 1.0 0.9 0.8 0.8 0.7 0.6 0.7 0.5 Cr iminal damage KETL 2.3 2.7 2.6 2.9 2.9 2.9 3.2 3.3 3.7 3.6 2.6 Dr ug offences KCAB 2.7 3.1 3.7 4.3 5.0 5.1 4.5 4.6 4.5 5.3 6.4 Other offences (excluding motor ing) KETM 4.2 4.3 4.4 4.3 4.4 4.3 4.6 4.5 4.1 4.2 3.5 Motor ing KETN 0.4 0.4 0.6 0.7 0.8 0.8 0.7 0.6 0.5 0.4 0.3 Total KETE 49.7 50.6 49.2 50.3 49.1 46.0 47.0 47.8 47.6 50.9 46.3 Summar y offences Summar y assaults JW99 5.0 5.8 6.3 6.8 7.3 7.9 9.5 11.0 12.0 13.0 11.8 Offences against Public Order JW9A 3.9 4.1 4.4 4.5 4.3 4.6 5.3 5.4 6.0 6.8 6.2 Firear ms Acts JW9B 0.1 0.1 0.2 0.1 0.1 0.1 0.2 0.3 0.2 0.2 0.2 Interference with a motor vehicle JW9N 0.9 1.0 1.1 1.0 1.0 1.0 0.9 0.9 0.8 0.7 0.6 Stealing or unauthorised taking of a conve yance JW9P 3.0 3.5 3.4 3.5 3.5 3.0 2.6 2.4 2.0 1.8 1.4 Cr iminal Damage - £5,000 or less KETS 5.2 6.1 6.7 6.9 7.0 7.2 8.3 8.8 8.6 9.2 8.7 Intoxicating liquor laws Dr unkenness JW9E 1.6 1.8 1.9 1.9 1.8 2.0 1.9 1.5 1.5 1.7 1.8 Motor ing offences (summary) KCAC 11.3 12.6 14.5 16.7 17.1 17.8 17.0 14.8 12.1 9.9 7.7 Other summary non-motor ing offences JX3D 5.8 4.6 3.8 3.8 3.3 2.8 3.3 3.2 3.0 3.2 3.8 Total KETO 36.8 39.6 42.2 45.2 45.4 46.6 49.2 48.3 46.1 46.6 42.1 1 See chapter text. 2 Data provided on the principal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data col- lection processes and their inevitable limitations are taken into account when those data are used. 4 Includes ’Companies’, etc . 5 Figures for persons aged 10 to under 18 are included in the totals above . 6 2008 figures exclude data for Cardiff magistrates’ court for April, July and Au- gust 2008. Source: Justice Statistics Analytical Services in the Ministry of Justice 020 3334 4969 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_4.xls 171 Crime and justice 11.5 Offenders cautioned: by offence group 1,2,3 England and Wales Thousands 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 All ages4 Indictable offences Violence against the person: KELB 23.5 21.2 19.9 19.6 23.6 28.8 36.6 51.0 57.3 52.3 37.6 Wounding KCAF 22.9 20.6 19.3 18.9 22.9 27.9 35.4 49.6 55.7 50.8 36.1 Other violence against the person KCAG 0.6 0.6 0.6 0.6 0.7 0.9 1.2 1.4 1.5 1.6 1.6 Sexual offences KELC 1.7 1.5 1.3 1.2 1.2 1.4 1.6 1.8 1.9 2.0 1.7 Burglar y KELD 8.4 7.7 6.6 6.4 5.8 5.6 5.6 6.5 7.7 7.0 5.4 Robber y KELE 0.6 0.6 0.6 0.5 0.4 0.4 0.5 0.6 0.7 0.6 0.4 Theft and handling stolen goods KELF 83.6 75.4 67.6 63.5 54.2 54.5 61.9 67.6 72.4 72.8 63.8 Fr aud and forger y KELG 7.4 7.2 6.2 5.8 5.3 5.5 6.0 6.9 8.0 8.6 8.2 Cr iminal damage KELH 2.7 3.0 3.2 3.4 3.1 3.7 5.5 7.2 9.0 8.8 7.7 Dr ug offences KCAI 58.7 49.4 41.1 39.4 44.9 45.7 32.6 34.4 37.4 43.1 46.9 Other offences KELI 5.0 4.6 4.4 4.1 4.4 5.3 6.0 6.9 9.4 10.0 8.6 Total KELA 191.7 170.6 150.9 143.9 142.9 150.7 156.3 182.9 203.8 205.1 180.3 Summar y offences Summar y assaults KELK 13.2 17.0 17.2 18.2 17.3 19.8 26.1 40.8 64.6 72.6 69.5 Offences against Public Order JW9W 14.5 14.6 13.4 13.0 12.7 15.1 15.4 15.3 18.5 20.6 19.0 Firear ms Acts JW9X 0.9 0.7 0.6 0.4 0.3 0.2 0.8 1.1 1.0 1.1 0.6 Interference with a motor vehicle JW9Y 0.5 0.6 0.5 0.5 0.5 0.5 0.4 0.5 0.6 0.6 0.4 Stealing or unauthorised taking of a conve yance JW9Z 4.5 4.5 4.3 4.4 3.9 3.7 3.3 3.2 3.3 3.2 2.6 Social Security Offences JWA2 0.1 0.1 0.2 0.2 0.5 0.4 0.4 0.5 0.5 0.6 0.7 Intoxicating Liquor Laws: Dr unkenness KELN 47.0 45.9 42.4 41.7 39.7 44.4 45.8 45.8 48.3 49.8 44.4 Education Acts KELP − − − − − 0.1 0.1 0.1 0.1 0.1 0.1 Offences by prostitutes KELT 0.1 0.1 − − − − − − − − − TV licence evasion KELY 6.4 5.7 5.0 4.5 4.2 4.0 4.5 6.3 7.1 7.3 7.3 Other summary non-motor ing offences JX6L 9.1 6.4 4.5 3.0 3.1 3.0 2.8 2.4 2.2 2.1 2.2 Total KELJ 96.2 95.6 88.1 85.9 82.4 91.1 99.5 116.0 146.2 157.8 146.6 Persons aged 10 to under 185 Indictable offences Violence against the person: KEMB 9.5 8.5 8.3 8.7 9.3 11.0 13.6 16.5 16.6 13.9 9.3 Wounding KCAP 9.4 8.4 8.2 8.6 9.3 10.9 13.5 16.4 16.5 13.8 9.3 Other violence against the person KCCE − 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1 Sexual offences KEMC 0.6 0.6 0.5 0.5 0.4 0.5 0.5 0.6 0.6 0.7 0.5 Burglar y KEMD 6.7 6.1 5.4 5.3 4.6 4.4 4.2 4.6 5.0 4.5 3.2 Robber y KEME 0.5 0.5 0.5 0.5 0.4 0.4 0.4 0.5 0.6 0.5 0.3 Theft and handling stolen goods KEMF 44.0 39.6 36.9 35.2 28.1 28.3 33.1 36.8 39.4 39.7 30.0 Fr aud and forger y KEMG 1.6 1.7 1.5 1.3 1.1 1.0 1.0 1.1 1.3 1.4 1.1 Cr iminal damage KEMH 1.7 1.9 2.1 2.3 1.9 2.3 3.1 3.9 4.7 4.5 3.5 Dr ug offences KCCF 11.0 9.6 7.9 8.5 9.5 9.6 8.3 7.8 7.1 8.1 8.5 Other offences KEMI 1.5 1.4 1.3 1.3 1.3 1.4 1.6 1.6 1.9 2.0 1.6 Total KEMA 77.2 69.8 64.3 63.5 56.6 58.7 65.9 73.4 77.1 75.2 58.1 Summar y offences Summar y assaults JWA3 4.3 5.8 6.4 6.9 6.2 6.8 8.8 12.2 16.2 16.8 14.2 Offences against Public Order JWA5 4.2 4.3 4.0 4.1 3.8 4.6 5.8 6.2 7.4 7.3 5.8 Firear ms Acts JWA4 0.6 0.5 0.4 0.3 0.2 0.1 0.4 0.6 0.5 0.6 0.3 Interference with a motor vehicle JWA6 0.3 0.4 0.4 0.4 0.4 0.4 0.3 0.3 0.3 0.3 0.2 Stealing or unauthorised taking of a conve yance JWA7 3.5 3.6 3.5 3.7 3.3 3.1 2.6 2.3 2.0 1.7 1.3 Cr iminal Damage - £5,000 or less KEMN 14.2 14.7 14.4 15.2 12.6 14.3 17.1 19.8 21.9 21.7 15.1 Intoxicating liquor laws: Dr unkenness JWA8 2.9 2.6 2.3 2.3 2.1 2.4 2.5 1.9 1.5 1.6 1.5 Other summary non-motor ing offences JX6M 2.5 2.3 1.9 1.7 1.4 1.5 1.6 2.1 2.1 2.2 1.6 Total KEMJ 32.5 34.2 33.2 34.5 29.9 33.3 39.1 45.5 52.0 52.1 39.9 1 See chapter text. 2 Data provided on the principal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by police forces. As a consequence, care should be taken to ensure data collection pro- cesses and their inevitable limitations are taken into account when those data are used. 4 Includes ’Companies’, etc. 5 Figures for persons aged 10 to under 18 are included in the totals above . Source: Justice Statistics Analytical Services in the Ministry of Justice 020 3334 4969 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_5.xls 172 Crime and justice 11.6 Offenders found guilty of offences: by age and sex 1,2,3 England and Wales Magistrates’ courts and the Crown Court Thousands 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20084 Males Indictable offences All ages K A 292.9 291.7 276.5 275.5 287.1 283.4 268.4 261.3 258.4 266.9 267.7 10 and under 15 years K B 8.1 8.9 8.7 9.0 8.8 8.0 8.5 8.6 8.3 8.5 7.7 15 and under 18 years K C 35.2 35.1 33.8 34.4 33.7 31.4 31.8 32.0 32.5 35.0 31.9 18 and under 21 years K 51.8 52.6 49.9 48.2 46.6 43.8 39.9 38.5 39.0 40.6 38.3 21 years and over K 197.9 195.0 184.0 183.9 198.0 200.2 188.2 182.2 178.7 182.9 189.8 Summar y offences All ages K 929.0 886.6 881.0 826.6 866.4 937.1 990.0 931.2 877.7 851.5 778.5 10 and under 15 years K G 3.9 5.1 5.8 6.2 6.1 6.1 6.7 7.2 7.0 7.3 6.3 15 and under 18 years K H 28.5 30.3 32.2 34.5 34.6 35.3 36.4 34.6 32.3 31.9 28.2 18 and under 21 years K I 96.3 94.8 93.0 92.2 94.7 99.9 98.2 89.4 85.1 80.5 76.6 21 years and over K 800.3 756.5 750.0 693.6 731.0 795.8 848.8 800.1 753.4 731.8 667.4 Females Indictable offences All ages K K 47.3 49.0 47.7 47.4 50.0 50.2 48.4 46.1 43.7 45.3 46.4 10 and under 15 years K 1.4 1.4 1.5 1.6 1.6 1.6 1.7 1.7 1.7 1.8 1.6 15 and under 18 years K M 5.1 5.2 5.2 5.3 5.1 4.9 5.0 5.5 5.1 5.5 4.9 18 and under 21 years K 7.1 7.6 7.5 7.0 6.9 6.2 5.7 5.3 4.8 4.6 4.7 21 years and over K O 33.7 34.7 33.5 33.5 36.5 37.5 35.9 33.6 32.1 33.4 35.3 Summar y offences All ages K P 188.3 171.0 208.3 190.2 208.7 210.5 231.2 236.6 233.9 244.2 242.0 10 and under 15 years K Q 0.6 0.8 0.9 0.9 1.1 1.2 1.4 1.6 1.6 1.8 1.7 15 and under 18 years K R 3.8 3.4 3.3 3.6 3.6 4.0 4.6 4.9 5.2 5.7 5.5 18 and under 21 years K S 12.1 10.8 11.8 11.1 11.6 12.6 13.0 13.5 14.2 14.9 16.5 21 years and over K T 171.7 155.9 192.3 174.7 192.4 192.7 212.1 216.6 212.9 221.9 218.3 Companies, etc Indictable offences K U 1.5 1.3 1.3 1.3 1.2 1.4 1.1 1.1 1.0 1.1 2.8 Summar y offences K V 10.7 8.9 8.8 8.6 7.9 8.6 9.4 8.1 6.6 6.9 25.8 1 See chapter text. 2 These data are on the principal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used. 4 Excludes data for Cardiff magistrates’ court for April, July and August 2008. Source: Justice Statistics Analytical Services in the Ministry of Justice 020 3334 4969 11.7 Persons cautioned by the police: by age and sex 1,2,3 England and Wales Thousands 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Males Indictable offences All ages K GA 142.9 126.1 109.7 103.8 104.4 109.8 110.0 129.9 147.6 148.5 132.8 10 and under 15 years4 K GB 23.7 22.0 20.3 19.7 16.7 16.9 18.7 21.0 21.7 19.7 14.5 15 and under 18 years4 K GC 32.0 28.7 25.0 24.5 23.3 24.1 25.9 28.0 30.2 30.0 24.4 18 and under 21 years K G 25.7 22.7 20.1 18.5 18.9 19.4 16.7 19.8 22.9 23.7 21.6 21 years and over K G 61.5 52.7 44.3 41.2 45.6 49.4 48.7 61.1 72.8 75.1 72.1 Summar y offences All ages K G 76.9 76.1 69.6 68.0 63.8 70.9 76.0 87.6 112.0 120.2 112.2 10 and under 15 years4 K GG 10.6 11.7 12.0 12.7 10.3 10.9 12.6 15.5 17.9 17.9 12.4 15 and under 18 years4 K GH 16.1 16.1 14.9 15.2 13.3 15.1 17.2 18.6 21.3 21.3 16.8 18 and under 21 years K GI 13.2 13.0 11.9 11.0 11.0 12.4 12.3 12.2 15.0 16.4 16.5 21 years and over K G 37.0 35.3 30.9 29.0 29.2 32.5 33.9 41.2 57.8 64.6 66.5 Females Indictable offences All ages K GK 48.8 44.5 41.2 40.1 38.5 41.0 46.3 53.0 56.2 56.6 47.6 10 and under 15 years4 K G 11.1 9.8 10.0 10.1 8.4 8.6 10.6 12.2 12.5 12.5 9.0 15 and under 18 years4 K GM 10.3 9.3 9.0 9.3 8.3 9.1 10.7 12.2 12.7 13.0 10.1 18 and under 21 years K G 5.9 5.7 5.2 4.9 4.8 4.9 5.2 5.8 6.2 6.3 5.5 21 years and over K GO 21.4 19.6 17.0 15.9 17.0 18.4 19.9 22.8 24.7 24.8 23.0 Summar y offences All ages K GP 19.2 19.4 18.5 18.0 18.6 20.2 23.5 28.5 34.2 37.6 34.3 10 and under 15 years4 K GQ 2.1 2.5 2.8 2.9 2.7 3.0 3.9 5.1 5.6 5.6 4.4 15 and under 18 years4 K GR 3.7 3.9 3.7 3.8 3.6 4.3 5.4 6.2 7.1 7.3 6.2 18 and under 21 years K GS 2.6 2.7 2.5 2.3 2.4 2.7 2.9 3.3 4.1 4.7 4.5 21 years and over K GT 10.8 10.3 9.6 9.0 9.8 10.2 11.3 13.9 17.4 20.0 19.1 1 See chapter text. 2 These data are on the prinicpal offence basis. 3 Every effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been ex- tracted from large administrative data systems generated by police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used. 4 From 1 June 2000 the Crime and Disorder Act 1998 came into force nationally and removed the use of cautions for persons under 18 and replaced them with repr imands and war nings. These are included in the totals. Source: Justice Statistics Analytical Services in the Ministry of Justice 020 3334 4969 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_6.xls http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_7.xls 173 Crime and justice 11.8 Sentence or order passed on persons sentenced for indictable offences: by sex 1 England and Wales Magistrates’ courts and the Crown Court Percentages and thousands 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Males Sentence or order Absolute discharge KEJB 0.7 0.6 0.6 0.6 0.8 0.9 0.8 0.7 0.7 0.7 0.6 Conditional discharge KEJC 15.3 15.0 14.1 13.4 12.4 13.0 12.2 11.9 11.3 12.2 11.4 Fine KEJF 28.4 27.7 25.7 24.5 23.9 24.0 20.9 19.4 17.4 16.2 16.0 Community rehabilitation order KEJD 10.0 10.1 10.1 10.7 10.6 10.1 9.5 5.6 0.8 0.5 0.4 Super vision order KEJE 2.7 2.7 2.4 2.3 2.1 1.8 2.0 2.1 2.3 2.4 1.9 Community punishment order KEJG 9.3 9.3 9.5 9.0 8.6 8.3 8.8 6.3 1.2 0.5 0.4 Attendance centre order KEJH 1.7 1.8 1.5 1.2 0.7 0.6 0.6 0.6 0.6 0.6 0.5 Community punishment and KIJW 3.8 3.7 3.6 2.6 2.6 2.6 2.8 2.1 0.5 0.4 0.4 rehabilitation order Curfew order LUJP 0.2 0.3 0.5 0.7 1.1 1.6 2.7 2.3 1.3 1.3 1.4 Reparation order SNFI .. .. 0.7 1.3 0.8 0.4 0.4 0.5 0.6 0.6 0.6 Action plan order SNFJ .. .. 0.9 1.7 1.1 0.7 0.8 0.8 0.8 0.8 0.7 Dr ug treatment and testing order SNFK .. .. 0.1 1.2 1.4 1.9 2.3 1.6 0.1 − − Referral order SNFL .. .. .. .. 3.0 4.0 4.4 5.2 5.2 5.5 5.0 Community order2 GN7P .. .. .. .. .. .. .. 8.7 19.8 20.4 20.7 Suspended sentence order KEJL 0.7 0.6 0.7 0.6 0.5 0.5 0.6 1.7 6.7 8.6 8.9 Imprisonment Sec 90-92 LUJQ 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.1 0.2 Detention and training order LUJR − 0.1 1.4 1.9 1.8 1.5 1.6 1.6 1.7 1.5 1.5 Young offender institution KEJK 6.0 6.2 5.2 4.5 4.2 3.6 3.8 3.7 3.6 3.8 3.6 Unsuspended imprisonment KEJM 18.2 18.7 19.9 20.0 20.9 20.6 21.5 21.2 20.4 19.9 21.6 Other sentence or order KEJN 2.6 3.1 3.1 3.4 3.3 3.5 4.1 3.9 4.4 4.0 4.4 Total number of males (thousands) = 100 per cent KEJA 292.4 291.3 277.1 274.6 285.6 282.3 267.5 259.4 258.4 265.8 266.9 Females Sentence or order Absolute discharge KEKB 0.7 0.7 0.6 0.6 0.9 1.0 0.8 0.8 0.7 0.8 0.7 Conditional discharge KEKC 28.7 26.9 24.9 23.9 22.0 22.5 21.8 20.7 20.1 20.8 20.0 Fine KEKF 21.3 20.8 20.1 18.6 17.9 18.5 16.7 15.2 12.8 12.1 11.9 Community rehabilitation order KEKD 19.1 19.4 19.6 19.1 19.2 17.0 15.4 9.0 1.4 0.5 0.4 Super vision order KEKE 3.1 2.9 2.8 2.7 2.1 2.1 2.1 2.4 2.5 2.6 2.0 Community punishment order KEKG 6.5 7.1 7.5 7.3 6.8 6.6 7.6 6.1 1.6 0.4 0.2 Attendance centre order KEKH 0.9 0.9 0.8 0.6 0.4 0.3 0.3 0.3 0.5 0.3 0.3 Community punishment and KIJX 3.4 3.3 3.0 2.1 2.1 1.8 1.9 1.5 0.5 0.2 0.2 rehabilitation order Curfew order LUJT 0.1 0.3 0.4 0.6 0.8 1.4 2.2 2.3 1.1 1.1 1.1 Reparation order SNFX .. .. 0.8 1.6 0.8 0.4 0.5 0.5 0.5 0.6 0.6 Action plan order SNFZ .. .. 1.0 2.0 1.2 0.8 0.8 1.0 0.9 0.9 0.7 Dr ug treatment and testing order SNGA .. .. 0.1 1.4 1.7 2.4 3.2 2.1 0.2 − − Referral order SNGB .. .. .. .. 3.9 5.1 5.6 6.7 6.9 7.0 6.2 Community order2 GN7Q .. .. .. .. .. .. .. 9.9 23.3 24.5 25.4 Suspended sentence order KEKL 1.5 1.3 1.3 1.2 1.1 1.0 1.3 2.5 7.8 9.6 10.1 Imprisonment Sec 90-92 LUJU .. 0.1 0.1 0.1 0.1 0.1 0.1 0.1 − − − Detention and training order LUJV − − 0.6 0.8 0.8 0.7 0.7 0.8 0.7 0.8 0.7 Young offender institution KEKK 2.2 2.4 2.2 2.0 1.9 1.7 1.4 1.6 1.6 1.4 1.3 Unsuspended imprisonment KEKM 10.0 11.0 11.5 12.1 12.7 12.8 13.2 12.6 12.8 12.4 13.5 Other sentence or order KEKN 2.5 3.0 2.9 3.5 3.4 3.8 4.3 3.8 4.3 3.7 4.7 Total number of females (thousands) = 100 per cent KEKA 47.2 49.0 47.8 47.3 49.9 50.2 48.3 46.1 43.7 45.4 46.3 1 See chapter text. Ever y effor t is made to ensure that the figures presented are accurate and complete. How ever, it is impor tant to note that these data have been extracted from large administrative data systems generated by police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used. 2 The community order was introduced on 4 April 2005 and applies to offences committed on or after that date. Source: Justice Statistics Analytical Services in the Ministry of Justice 020 3334 5512 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_8.xls 174 Crime and justice 11.9 Persons sentenced to life imprisonment or immediate custody: by sex and ageEngland and Wales Number of Persons 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Life imprisonment1 Males All ages I28G 380 465 446 484 536 489 548 594 531 471 495 10 - 17 years I28D 11 26 19 28 21 11 15 27 16 23 24 18 - 20 years I28E 25 38 9 27 21 47 24 50 46 70 54 21 years and over I28F 344 401 418 429 494 431 509 517 469 378 417 Females All ages I28K 14 19 21 19 19 24 22 31 16 21 28 10 - 17 years I28H 1 3 2 1 1 − 1 1 − 3 1 18 - 20 years I28I − 2 1 3 2 4 2 4 2 3 2 21 years and over I28J 13 14 18 15 16 20 19 26 14 15 25 All persons All ages I28O 394 484 467 503 555 513 570 625 547 492 523 10 - 17 years I28L 12 29 21 29 22 11 16 28 16 26 25 18 - 20 years I28M 25 40 10 30 23 51 26 54 48 73 56 21 years and over I28N 357 415 436 444 510 451 528 543 483 393 442 Immediate custody2 Males All ages JF7E 93 619 97 355 97 841 97 728 102 240 98 371 97 020 91 954 86 239 85 285 88 826 10 - 17 years JF7F 6 870 7 218 6 949 7 119 6 865 5 765 5 866 5 463 5 669 5 277 4 939 18 - 20 years JF7G 16 127 17 011 17 315 16 855 16 269 14 418 13 793 13 237 12 802 13 126 12 354 21 years and over JF7H 70 622 73 126 73 577 73 754 79 106 78 188 77 361 73 254 67 768 66 882 71 533 Females All ages JF7I 6 553 7 485 7 879 8 042 8 812 8 786 8 732 8 231 7 783 7 722 8 284 10 - 17 years JF7J 335 406 444 448 529 424 443 498 453 466 442 18 - 20 years JF7K 851 961 1 116 1 063 1 071 969 817 875 841 793 782 21 years and over JF7L 5 367 6 118 6 319 6 531 7 212 7 393 7 472 6 858 6 489 6 463 7 060 All persons All ages JF7M 100 172 104 840 105 720 105 770 111 052 107 157 105 752 100 185 94 022 93 007 97 464 10 - 17 years JF7N 7 205 7 624 7 393 7 567 7 394 6 189 6 309 5 961 6 122 5 743 5 403 18 - 20 years JF7O 16 978 17 972 18 431 17 918 17 340 15 387 14 610 14 112 13 643 13 919 13 180 21 years and over JF7P 75 989 79 244 79 896 80 285 86 318 85 581 84 833 80 112 74 257 73 345 78 881 1 Includes detention under the Pow ers of Criminal Courts (Sentencing) Act 2000, Secs 90-92 (Childrens and Young Persons Act 1993, Secs 53(1) & (2) prior to Aug 2000) (persons aged 10-17), custody for life under the Po wers of Criminal Courts (Sentencing) Act 2000, Secs 93 and 94 (1) (per- sons aged 18 - 20), mandatory life sentences under the Pow ers of Criminal Cour ts (Sentencing) Act 2000 Sec 109 (persons aged 18 and over) and immediate imprisonment (persons aged 21 and over). Indeterminate sentences for public protection under the Cr iminal Justice Act 2003 are excluded. 2 Excludes life and indeterminate sentences. Source: Justice Statistics Analytical Services in the Ministry of Justice 020 3334 5512 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_9.xls 175 Crime and justice 11.10 Receptions and average population in custodyEngland and Wales Numbers1 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Receptions Type of inmate: Untr ied KEDA 62 066 64 697 64 572 54 892 53 467 58 708 58 696 54 556 55 455 55 809 55 305 Convicted, unsentenced KEDB 36 424 43 387 45 893 43 889 46 851 53 301 53 246 50 115 49 104 47 995 43 566 Sentenced KEDE 87 168 91 282 93 965 93 671 91 978 94 807 93 495 95 161 92 452 90 038 91 736 Immediate custodial sentence KEDF 80 832 85 908 90 238 91 195 90 523 93 615 92 245 93 326 90 414 88 134 90 261 Young offenders KEDG 18 743 19 599 21 020 21 333 20 969 20 236 18 179 18 264 17 819 17 985 19 022 Up to 12 months KEDH 11 867 12 942 14 330 14 639 14 234 12 891 11 850 11 855 11 610 11 526 12 295 12 months up to 4 years KEDJ 5 949 5 921 5 904 5 877 5 856 6 355 5 412 5 426 5 243 5 317 5 530 4 years up to and including life KEDL 927 736 786 817 879 990 917 983 966 1 142 1 197 Adults KFBO 62 089 66 309 69 218 69 862 69 554 73 379 74 066 75 062 72 595 70 149 71 239 Up to 12 months KEDV 38 702 42 513 45 662 46 759 46 146 47 870 48 962 49 814 48 190 45 768 46 706 12 months up to 4 years KEDW 17 546 18 100 17 751 17 290 17 116 18 313 17 968 17 988 17 397 16 970 17 233 4 years up to and including life KEDX 5 841 5 696 5 805 5 813 6 292 7 196 7 136 7 260 7 008 7 411 7 300 Committed in default of payment of a fine KEDY 6 336 5 374 3 727 2 476 1 455 1 192 1 250 1 835 1 876 1 904 1 475 Young offenders KEEA 555 568 366 216 138 110 116 155 162 118 92 Adults KAFQ 5 781 4 806 3 361 2 260 1 317 1 082 1 134 1 680 1 714 1 786 1 383 Non-cr iminal pr isoners KEDM 3 204 3 290 3 271 3 153 4 630 2 674 3 142 3 669 3 668 4 734 3 888 Immigration Act 1971 KEDN 2 122 2 348 2 443 2 455 4 035 2 093 2 457 3 041 3 093 4 073 3 347 Others KEDO 1 082 942 828 698 595 581 685 628 575 661 541 Average population Total in custody KEDP 61 114 65 298 64 771 64 602 66 301 70 861 73 038 74 657 75 979 78 150 80 395 Total in prison service establishments KFBQ 61 114 65 298 64 771 64 602 66 301 70 778 73 038 74 657 75 979 78 127 80 216 Police cells2 KFBN − − − − − 83 − − − 22 179 Untr ied KEDQ 8 453 8 157 7 947 7 098 6 924 7 727 7 862 7 735 8 088 8 293 8 273 Convicted, unsentenced KEDR 3 678 4 411 4 571 4 177 4 314 5 064 5 060 4 750 4 806 4 967 4 560 Sentenced KEDU 48 413 52 176 51 691 52 685 54 051 57 222 59 007 61 071 61 991 63 504 65 963 Immediate custodial sentence KFBR 48 272 52 045 51 596 52 620 54 006 57 184 58 959 61 012 61 925 63 429 65 533 Young offenders KFBS 7 821 8 490 8 336 8 435 8 558 8 777 8 421 8 290 8 239 8 535 9 188 Deter minate sentence I7IJ 7 707 8 363 8 197 8 288 8 408 8 616 8 262 8 123 8 030 8 141 8 502 Indeter minate sentence I7IL 114 127 139 147 150 161 159 167 209 394 683 Adults KFCO 40 451 43 556 43 261 44 185 45 448 48 408 50 536 52 721 53 686 54 894 56 776 Deter minate sentence I7IK 36 838 39 733 39 183 39 779 40 768 43 411 45 278 47 264 47 914 47 885 47 850 Indeter minate sentence I7IM 3 613 3 823 4 078 4 406 4 680 4 997 5 258 5 457 5 772 7 009 8 850 Committed in default of payment of a fine KFCS 141 131 95 64 45 37 48 59 71 82 79 Young offenders KFEW 13 15 9 4 6 2 3 4 3 3 3 Adults KFEX 128 116 86 59 39 35 45 54 68 79 76 Non-cr iminal pr isoners KEEB 572 554 558 641 1 012 847 1 107 1 100 1 087 1 355 1 420 Immigration Act 1971 KEEC 485 474 485 576 955 777 1 041 1 033 1 022 1 288 1 348 Others KEED 87 79 73 63 57 69 67 68 65 65 72 Accommodation3 I7IQ 56 329 61 253 62 369 63 436 63 757 64 232 66 104 67 576 69 443 70 585 73 618 1 The components do not always add up to the totals as they have been rounded independently. 2 Mostly untried prisoners. 3 In use Certified Normal Accommodation at 30 June every year. Source: Ministry of Justice: 020 7210 0638 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_10.xls 176 Crime and justice 11.11 Prison population serving sentences: by age and offence 1,2 England and Wales Numbers Age in years 15 - 17 18 - 20 21 - 24 25 - 29 30 - 39 40 - 49 50 - 59 60 and over Total At 30 June 2002 Offences Males Total 1 986 5 821 9 722 10 196 15 415 6 630 2 832 1 365 53 967 Violence against the person 336 1 187 1 942 1 937 3 490 1 769 749 267 11 678 Sexual offences 58 167 262 406 1 347 1 241 996 794 5 270 Burglar y 396 1 130 2 159 2 331 2 379 448 58 15 8 917 Robber y 503 1 285 1 647 1 390 1 865 443 66 10 7 208 Theft, handling, fraud and forger y 302 570 1 055 1 105 1 416 480 213 62 5 203 Drugs offences 43 431 1 255 1 763 3 142 1 496 495 129 8 754 Other offences 275 875 1 195 1 103 1 555 640 205 73 5 921 Offences not known 72 174 207 162 222 113 50 15 1 016 Females Total 103 356 596 662 1 030 439 134 19 3 339 Violence against the person 27 67 73 85 163 84 33 6 538 Sexual offences - 1 - 1 11 6 3 1 23 Burglar y 9 37 58 54 68 12 1 - 239 Robber y 19 63 89 65 60 14 3 1 314 Theft, handling, fraud and forger y 22 56 103 139 168 68 20 4 581 Drugs offences 8 94 206 256 474 216 60 6 1 319 Other offences 12 32 52 50 73 34 9 1 262 Offences not known 6 7 16 13 13 5 4 - 63 At 30 June 2003 Offences Males Total 1 724 5 740 10 112 10 441 16 304 7 252 2 975 1 413 55 962 Violence against the person 310 1 257 2 112 2 068 3 733 1 932 780 290 12 482 Sexual offences 42 183 310 390 1 376 1 353 1 023 838 5 514 Burglar y 289 919 2 003 2 204 2 555 527 71 11 8 579 Robber y 436 1 370 1 910 1 546 2 022 514 69 12 7 879 Theft, handling, fraud and forger y 291 543 1 020 1 060 1 437 472 201 45 5 069 Drugs offences 43 452 1 256 1 791 3 215 1 579 528 127 8 993 Other offences 271 884 1 329 1 218 1 760 787 263 69 6 581 Offences not known 42 133 172 164 205 89 40 21 865 Females Total 57 305 670 702 1 100 492 123 28 3 477 Violence against the person 10 61 91 66 155 82 32 7 506 Sexual offences - - 2 1 11 7 3 2 26 Burglar y 1 24 64 60 77 12 2 - 240 Robber y 21 60 105 100 93 24 4 - 407 Theft, handling, fraud and forger y 10 56 117 128 199 70 18 11 609 Drugs offences 6 73 226 271 453 253 54 8 1 343 Other offences 7 27 58 66 108 39 6 - 311 Offences not known 2 3 8 10 5 4 4 - 36 At 30 June 2004 Offences Males Total 1 706 5 585 10 095 10 738 17 021 7 858 3 013 1 508 57 523 Violence against the person 326 1 353 2 247 2 272 3 965 2 107 799 304 13 373 Sexual offences 55 193 329 424 1 433 1 416 1 030 865 5 747 Burglar y 242 855 1 807 2 141 2 662 608 71 11 8 397 Robber y 449 1 254 1 865 1 691 2 127 583 70 17 8 056 Theft, handling, fraud and forger y 272 502 903 1 045 1 479 573 180 63 5 017 Drugs offences 51 471 1 383 1 789 3 258 1 615 537 150 9 256 Other offences 286 848 1 390 1 249 1 895 868 284 87 6 908 Offences not known 25 108 171 126 202 87 41 10 769 Females Total 58 300 632 727 1 056 507 152 20 3 453 Violence against the person 15 70 98 89 192 95 36 9 603 Sexual offences - - 3 3 8 7 4 2 27 Burglar y 6 19 59 83 56 22 3 - 247 Robber y 8 65 93 90 114 20 2 - 392 Theft, handling, fraud and forger y 11 28 100 140 171 67 25 1 543 Drugs offences 6 78 197 245 392 246 65 6 1 235 Other offences 11 37 75 72 108 44 13 2 361 Offences not known 2 3 8 7 15 7 4 - 46 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_11.xls 177 Crime and justice 11.11 Prison population serving sentences: by age and offence 1,2 England and Wales continued Numbers Age in years 15 - 17 18 - 20 21 - 24 25 - 29 30 - 39 40 - 49 50 - 59 60 and over Total At 30 June 2005 Offences Males Total 1 782 5 595 9 937 10 969 16 843 8 731 3 256 1 594 58 707 Violence against the person 366 1 493 2 553 2 553 4 015 2 402 840 319 14 541 Sexual offences 65 186 397 505 1 436 1 552 1 084 922 6 147 Burglar y 285 719 1 559 1 947 2 570 669 78 17 7 844 Robber y 422 1 307 1 819 1 705 2 035 649 83 15 8 035 Theft, handling, fraud and forger y 240 433 858 1 074 1 449 650 238 55 4 997 Drugs offences 76 491 1 332 1 834 3 263 1 741 544 148 9 429 Other offences 310 870 1 306 1 245 1 902 987 360 99 7 079 Offences not known 18 96 113 106 173 81 29 19 635 Females Total 55 269 614 680 1 073 585 179 24 3 479 Violence against the person 23 68 109 85 190 114 40 9 638 Sexual offences - 2 3 4 12 8 7 3 39 Burglar y 4 18 50 62 79 23 3 - 239 Robber y 16 59 61 82 102 20 3 - 343 Theft, handling, fraud and forger y 4 35 105 119 202 88 27 3 583 Drugs offences 3 54 195 255 366 268 84 9 1 234 Other offences 5 30 84 68 117 56 14 - 374 Offences not known - 3 7 5 5 8 1 - 29 At 30 June 2006 Offences Males Total 1 814 5 716 9 612 11 349 16 828 9 349 3 511 1 719 59 898 Violence against the person 381 1 563 2 616 2 977 4 109 2 609 935 348 15 537 Sexual offences 67 213 452 560 1 497 1 683 1 118 971 6 561 Burglar y 275 707 1 363 1 838 2 554 715 97 15 7 563 Robber y 486 1 413 1 739 1 674 1 975 706 91 16 8 100 Theft, handling, fraud and forger y 200 451 830 1 093 1 598 707 214 54 5 147 Drugs offences 68 492 1 232 1 913 3 153 1 829 623 174 9 484 Other offences 327 835 1 326 1 231 1 838 1 040 406 129 7 129 Offences not known 12 43 55 64 105 60 28 10 378 Females Total 50 271 551 707 1 094 604 189 39 3 506 Violence against the person 11 75 111 101 205 118 48 9 678 Sexual offences 1 3 2 2 8 13 5 3 37 Burglar y 7 13 39 63 80 24 2 - 228 Robber y 17 48 67 76 86 18 2 - 315 Theft, handling, fraud and forger y 3 30 97 171 232 106 24 7 671 Drugs offences 4 62 158 217 354 253 88 17 1 163 Other offences 7 36 61 72 120 67 19 3 385 Offences not known 1 5 5 4 9 5 1 - 30 At 30 June 2007 Offences Males Total 1 827 6 354 9 860 11 653 16 606 10 092 3 823 1 973 62 188 Violence against the person 402 1 772 2 927 3 183 4 337 2 846 1 063 399 16 929 Sexual offences 73 276 487 675 1 555 1 909 1 202 1 112 7 287 Burglar y 281 817 1 334 1 865 2 492 812 109 13 7 723 Robber y 495 1 558 1 855 1 716 1 928 774 96 14 8 437 Theft, handling, fraud and forger y 194 426 677 1 044 1 478 711 246 67 4 844 Drugs offences 71 546 1 285 1 858 3 002 1 908 689 210 9 569 Other offences 294 908 1 237 1 242 1 731 1 087 401 152 7 051 Offences not known 17 51 59 69 83 47 18 5 348 Females Total 56 280 475 662 1 011 610 202 49 3 345 Violence against the person 20 99 113 111 170 117 47 11 687 Sexual offences - 1 3 7 16 15 4 2 48 Burglar y 2 11 28 56 76 23 1 - 197 Robber y 13 54 53 78 82 27 2 1 311 Theft, handling, fraud and forger y 7 29 68 128 211 111 37 10 601 Drugs offences 3 42 124 201 335 230 90 19 1 044 Other offences 9 45 75 76 115 77 20 6 423 Offences not known 2 - 10 5 6 10 2 - 35 1 The data presented in this table are drawn from administrative IT systems. Where figures in the table have been rounded to the nearest whole number, the rounded components do not always add to the totals, which are calcu- lated and rounded independently. Reconciliation exercises with published Home Office figures may demonstrate differences due to rounded compo- nents. A programme of wor k is currently being undertaken to audit the quality of the data and to identify prior ities for improvements. 2 Excludes persons committed in default of payment of a fine. Source: Ministry of Justice: 020 7210 8500 178 Crime and justice 11.12 Expenditure on prisonsEngland and Wales Operating cost and total capital employed, years ending 31 March £ thousand 2001 2002 2003 2004 2005 2006 2007 /02 /03 /04 /05 /06 /07 /08 Expenditure Staff costs KWUV 1 138 400 1 259 502 1 364 193 1 439 882 1 498 446 1 586 126 1 646 757 Accommodation costs KXCO 193 100 200 000 194 000 185 400 150 270 138 322 144 170 Other operating costs KXCP 706 100 756 198 653 007 694 618 528 529 498 913 511 688 Depreciation KXCQ 128 100 132 600 129 600 143 800 7 974 11 044 12 135 Cost of capital KXCR 284 900 292 700 164 400 170 300 279 905 −610 Total expenditure KXCS 2 450 600 2 641 000 2 505 200 2 634 000 2 185 498 2 235 310 2 314 140 Income Contr ibutions from industries KXCT −11 600 −10 100 −11 000 −10 600 −11 154 −7 698 −7 079 Other operating income KXCU −13 100 −15 500 −21 000 −38 400 −41 323 −45 411 −43 566 Income from Other Government Departments1 GDPM −180 600 −210 200 −368 000 −381 500 −302 549 −245 917 −205 524 Total income KXCV −205 300 −235 800 −400 000 −430 500 −355 026 −299 026 −256 169 Net operating costs KXCW 2 245 300 2 405 200 2 105 200 2 203 500 1 830 472 1 936 284 2 057 971 Total capital employed KXCX 4 859 600 4 821 500 5 228 600 5 116 700 5 716 −52 207 −42 577 1 Income from the Youth Justice Board (a non-departmental public body of the Home Office) for the provision of juvenile custody within the Prison Ser- vice, Depar tment for Education and Skills for the provision of education ser- vices and Department of Health and PCTs for the provision of healthcare. Source: NOMS Agency: 020 7217 5213 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_12.xls 179 Crime and justice 11.13 Crimes and offences recorded by the police: by crime group 1 Scotland Thousands 1999 2000 2001 2002 2003 20044 2005 2006 2007 2008 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Non-sexual crimes of violence against the person BEBC 15.8 14.9 15.7 16.1 15.1 14.7 13.8 14.1 12.9 12.6 Ser ious assault, etc2 KAFS 7.3 6.9 7.5 7.6 7.5 7.8 7.2 7.5 6.9 6.6 Robber y KAFU 4.9 4.3 4.6 4.6 4.2 3.7 3.6 3.6 3.1 3.0 Other KAFV 3.6 3.6 3.5 3.8 3.5 3.2 3.0 3.0 3.0 3.0 Crimes involving indecency BEBD 5.8 5.8 6.0 6.6 6.8 7.3 6.6 6.8 6.6 6.3 Rape and attempted rape1 OXBQ 0.8 0.7 0.8 0.9 1.0 1.1 1.2 1.1 1.1 1.0 Indecent assault1 OXBR 1.1 1.0 1.2 1.4 1.4 1.5 1.5 1.7 1.7 1.6 Lewd and indecent behaviour KAFY 2.3 2.4 2.4 2.8 2.6 2.8 2.7 2.6 2.6 2.4 Other KAFZ 1.7 1.6 1.6 1.6 1.7 1.9 1.2 1.4 1.3 1.3 Crimes involving dishonesty BEBE 275.6 253.3 242.8 224.8 211.0 210.4 187.8 183.7 166.7 167.8 Housebreaking3 KAGB 52.9 47.7 45.5 40.6 36.4 35.0 31.3 30.6 25.4 25.5 Theft by opening lockfast places KAGC 11.6 10.6 8.2 7.8 7.4 7.9 8.3 7.4 6.4 7.0 Theft from a motor vehicle (OLP) EPI4 38.0 32.0 32.7 30.4 26.8 20.4 16.5 16.1 15.2 13.6 Theft of a motor vehicle KAGD 28.9 25.6 23.1 20.9 17.6 15.6 14.0 15.0 12.1 11.6 Shoplifting KAGE 32.1 32.3 31.6 28.3 27.9 28.5 28.2 28.8 29.2 32.0 Other theft KAGF 81.2 76.6 76.0 73.2 72.5 77.6 72.1 70.2 64.6 64.4 Fr aud KAGG 20.6 20.0 17.4 15.8 15.3 18.3 11.1 9.3 8.4 8.3 Other KAGH 10.3 8.4 8.4 7.9 7.0 7.1 6.3 6.4 5.3 5.4 Fire-raising, vandalism, etc BEBF 81.2 85.8 95.0 97.7 103.8 128.5 127.9 129.7 118.0 109.4 Fire-raising KAGJ 2.3 2.4 2.9 3.8 4.2 4.7 4.9 5.0 4.6 4.7 Vandalism, etc KAGK 78.9 83.4 92.0 93.8 99.6 123.9 123.0 124.8 113.4 104.8 Other crimes BEBG 57.1 58.9 66.8 73.2 77.5 77.2 81.9 84.9 81.3 81.3 Cr imes against public justice KAGM 18.4 18.6 20.9 22.7 25.8 25.6 27.7 32.1 31.4 29.5 Handling offensive weapons2 KAFT 8.1 8.1 9.0 9.4 9.3 9.5 9.6 10.1 9.0 9.0 Dr ugs KAGN 30.4 32.1 36.8 40.9 42.3 41.8 44.2 42.4 40.7 42.5 Other KAGO 0.1 0.1 0.1 0.2 0.2 0.2 0.3 0.4 0.3 0.3 Total crimes KAGQ 435.5 418.5 426.2 418.3 414.2 438.1 417.8 419.3 385.5 377.4 Miscellaneous offences BEBH 151.9 154.8 163.4 169.6 181.0 214.3 219.5 232.4 224.3 226.8 Minor assault KAGS 54.6 54.1 55.4 55.0 57.4 73.7 72.3 78.2 73.5 74.1 Breach of the peace KAGT 71.3 70.2 72.7 74.7 77.9 90.0 89.6 93.4 90.3 91.2 Dr unkenness KAGU 7.6 7.8 7.8 7.3 7.5 7.2 7.0 6.7 6.7 6.0 Other KAGV 18.4 22.8 27.6 32.6 38.2 43.4 50.6 54.2 53.7 55.4 Motor vehicle offences BEBI 347.5 340.1 362.5 350.1 435.0 424.3 380.5 375.1 347.8 333.5 Dangerous and careless driving KAGX 13.2 12.0 12.2 12.7 12.0 13.1 13.0 13.6 13.0 11.5 Dr unk dr iving KAGY 10.9 10.8 11.5 11.8 11.6 11.1 11.3 11.7 10.7 9.8 Speeding KAGZ 123.4 113.9 126.8 117.2 199.2 210.1 167.7 162.9 137.2 117.3 Unlawful use of a motor vehicle KAHA 80.7 84.3 94.6 99.5 99.5 76.7 75.1 73.1 73.7 68.6 Vehicle defect offences KAHB 48.0 46.8 45.5 46.5 37.2 27.0 23.9 21.2 22.3 25.6 Other KAHC 71.2 73.3 77.9 66.9 75.4 86.3 89.4 92.6 90.8 100.7 Total offences KAHD 499.4 496.1 532.0 524.1 615.9 638.6 600.0 607.4 572.1 560.3 Total crimes and offences BEBB 934.9 913.5 952.4 937.8 1 030.1 1 076.7 1 017.7 1 026.6 957.6 937.7 1 See chapter text. 2 Includes murder, attempted murder, culpable homicide and serious assault. 3 Includes dwellings, non-dwellings and other premises. 4 The introduction of the Scottish Crime Recording Standard on 1 April 2004 has increased the number of minor crimes recorded, such as minor crimes of theft, vandalism, petty assault and breach of the peace. Source: The Scottish Government Justice Department: 0131 244 2635 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_13.xls 180 Crime and justice 11.14 Persons with a charge proved: by crime group 1 Scotland Numbers 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20083 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Non-sexual crimes of violence KEHC 2 000 2 003 1 976 2 092 2 381 2 596 2 427 2 455 2 445 2 742 2 637 Homicide KEHD 92 105 100 103 99 131 143 111 120 135 110 Ser ious assault, etc KEHE 1 036 1 053 1 089 1 171 1 360 1 475 1 374 1 560 1 482 1 729 1 692 Robber y KEHG 652 659 603 627 682 689 610 509 527 542 563 Other violence KEHH 220 186 184 191 240 301 300 275 316 336 272 Cr imes of indecency KEHI 1 280 790 633 614 562 666 810 853 863 790 944 Rape and attempted rape HFVU 58 48 52 67 55 58 70 61 58 49 40 Indecent assault KEHJ 83 84 60 48 65 93 87 84 81 117 107 Lewd and libidinous practices KEHK 320 302 256 298 273 297 321 319 313 249 333 Other indecency KEHL 819 356 265 201 169 218 332 389 411 375 464 Cr imes of dishonesty KEHM 24 726 22 652 20 571 21 536 21 700 19 887 19 665 18 045 18 447 17 801 17 426 Housebreaking KEHN 3 071 2 860 2 676 2 672 2 752 2 508 2 373 2 074 2 025 1 867 1 856 Theft by opening lockfast places KEHO 1 770 1 614 1 504 1 478 1 448 1 288 1 194 951 911 944 860 Theft of motor vehicle KEHP 1 882 1 536 1 426 1 386 1 486 1 268 1 099 985 1 028 931 886 Shoplifting KEHQ 7 559 7 753 7 345 8 366 8 826 8 123 8 427 8 162 8 548 8 457 8 260 Other theft KEHR 5 796 5 026 4 303 4 234 3 783 3 521 3 551 3 187 3 303 3 150 2 979 Fr aud KEHS 1 920 1 595 1 448 1 479 1 459 1 444 1 355 1 245 1 180 1 165 1 218 Other dishonesty KEHT 2 728 2 268 1 869 1 921 1 946 1 735 1 666 1 441 1 452 1 287 1 367 Fire-raising, vandalism, etc KEHU 4 591 3 979 3 942 4 051 4 212 4 759 5 024 4 998 5 437 5 391 4 344 Fire-raising KEHV 125 102 109 125 147 169 192 192 251 224 242 Vandalism, etc KEHW 4 466 3 877 3 833 3 926 4 065 4 590 4 832 4 806 5 186 5 167 4 102 Other crime KEHX 13 698 12 888 12 558 13 823 13 954 15 453 16 800 16 968 19 836 20 245 19 728 Cr ime against public justice KFBK 4 776 4 589 4 929 5 257 5 048 5 290 5 767 5 753 7 206 8 038 8 710 Handling offensive weapons KEHF 2 033 2 118 2 340 2 633 2 771 2 875 3 447 3 500 3 550 3 422 3 529 Dr ugs offences KFBL 6 861 6 158 5 279 5 913 6 111 7 258 7 555 7 606 8 877 8 517 7 251 Other KFBM 28 23 10 20 24 30 31 109 203 268 238 Total crimes KEHB 46 295 42 312 39 680 42 116 42 809 43 361 44 726 43 319 47 028 46 969 45 079 Miscellaneous offences KEHZ 35 024 29 505 28 651 30 152 32 062 34 536 37 492 39 679 42 278 41 300 35 671 Common assault KEIA 11 677 10 749 10 270 10 823 11 745 12 317 13 574 14 427 15 441 15 502 15 105 Breach of the peace KEIB 17 156 14 023 13 031 13 950 14 384 15 050 16 172 16 901 18 111 17 495 15 962 Dr unkenness KEIC 626 454 430 374 370 418 311 293 261 235 129 Other miscellaneous offences KEID 5 565 4 279 4 920 5 005 5 563 6 751 7 435 8 058 8 465 8 068 4 475 Motor vehicle offences KEIE 51 638 51 603 40 264 44 821 47 956 50 622 47 515 45 203 45 065 45 314 44 680 Dangerous and careless driving KEIF 3 764 3 431 2 561 3 319 3 628 4 118 3 810 3 621 3 773 3 967 3 686 Dr unk dr iving KEIG 7 290 7 366 6 265 6 538 9 508 8 158 8 001 7 970 8 066 7 820 7 212 Speeding2 KEIH 12 971 15 293 9 427 9 988 9 832 12 700 13 546 12 273 13 434 14 185 13 535 Unlawful use of vehicle KEII 18 662 16 950 15 987 18 553 19 192 19 563 16 696 14 711 13 449 13 621 12 739 Vehicle defect offences KEIJ 2 470 2 075 1 302 1 252 1 510 1 859 1 791 1 653 1 709 2 320 3 715 Other motor vehicle offences KEIK 6 481 6 488 4 722 5 171 4 286 4 224 3 671 4 975 4 634 3 401 3 793 Total offences KEHY 90 879 85 792 73 526 79 482 84 963 90 253 85 007 84 882 87 343 86 614 80 351 Total crimes and offences KEHA 137 174 128 104 113 206 121 598 127 772 133 614 129 733 128 201 134 371 133 583 125 430 1 See chapter text. Data as at August 2009. 2 Includes motorway and clearway offences. 3 Figures for 2008-09 for some categories dealt with by the High Court - includ- ing homicide, rape and major drug cases - may be underestimated slightly due to late recording of disposals on SCRO. Source: Scottish Government Justice Department: 0131 244 2229 11.15 Persons with a charge proved: by cour t procedure 1,2 Scotland Numbers 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Cour t procedure High Court3 KEIQ 1 043 1 174 1 092 1 125 1 194 1 217 974 882 866 837 784 Sheriff Cour t KEIU 74 484 70 541 65 714 72 021 80 117 80 155 80 866 79 956 85 185 85 175 78 200 District Cour t4,5 KEIV 50 784 46 052 38 422 38 484 41 516 47 144 47 891 47 358 48 319 47 569 46 430 Stipendiar y Magistrate Court4 KEIW 6 646 5 652 3 365 5 455 .. .. .. .. .. .. .. Total called to court6 KEIZ 132 957 123 420 108 595 117 089 122 827 128 519 129 733 128 201 134 371 133 583 125 430 1 See chapter text. 2 All figures are now repor ted as financial years. 3 Including cases remitted to the High Court from the Sheriff Court. Figure for 2007/08 may be an underestimate due to late recording of disposals on the Scottish Criminal History System. 4 Distr ict Cour t figures from 2002/03 include the Stipendiary Magistrate Court. 5 Figure for 2007/08 includes Justice of the Peace courts in Lothian & Borders from 10 March 2008. 6 Includes court type not known. Source: Scottish Government Justice Department: 0131 244 2229 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_14.xls http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_15.xls 181 Crime and justice 11.16 Persons with charge proved: by main penalty 1,2 Scotland Numbers 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Main penalty Restr iction of liberty order3 ZBRE 106 196 152 166 656 879 1 097 1 136 1 179 1 155 1 132 Super vised attendance order4 ZBRF 31 37 5 11 13 18 33 99 112 129 197 Dr ug treatment and testing order5 OEWA .. 5 117 286 409 610 713 758 865 822 881 Absolute discharge KEXA 403 368 364 415 385 435 403 401 411 430 412 Admonition or caution KEXB 13 442 12 188 11 203 11 702 12 360 12 934 13 744 14 175 15 967 16 083 16 350 Probation KEXC 6 824 6 542 6 654 7 708 8 451 8 137 8 623 8 785 8 613 9 000 9 858 Remit to children’s hear ing KEXD 176 120 116 158 230 196 221 260 313 259 209 Community service order KEXE 4 811 4 254 4 272 4 323 4 719 4 298 4 849 5 195 5 284 5 599 5 779 Fine KEXF 91 393 84 255 70 683 76 217 78 541 84 327 83 237 80 723 83 445 82 019 72 571 Compensation order KEXG 1 238 1 151 1 076 1 142 1 347 1 767 1 695 1 471 1 375 1 325 1 150 Insanity, hospital, guardianship order KYAN 125 136 116 103 101 129 95 115 65 20 16 Pr ison KEXI 10 635 10 609 10 430 11 437 12 427 11 960 12 307 12 153 13 456 13 575 13 851 Young offenders’ institution KEXJ 3 749 3 546 3 394 3 407 3 162 2 801 2 685 2 902 3 241 3 141 3 003 Detention of child KEXM 24 13 13 14 25 24 20 24 24 26 21 Total persons with charge proved6 KEXO 132 957 123 420 108 595 117 089 122 827 128 549 129 733 128 201 134 371 133 583 125 430 1 See chapter text. 2 All figures are now repor ted as financial years. 3 A community sentence introduced by Section 5 of the Crime and Punish- ment (Scotland) Act 1995 and available on a pilot basis to 3 Scottish sheriff cour ts since August 1998. This sentence was made available to High Cour t, Sher iff Cour ts and Stipendiary Magistrates court from 1 May 2002. 4 The pilot scheme under the Crime and Punishment (S) Act 1995, where fines for 16 & 17 year olds were replaced by super vised attendance orders, was discontinued in December 1999. The majority of supervised atten- dance orders recorded from the year 2000-01 onwards were disposals re- lating to the breach of an existing order. 5 Drug treatment and testing orders are new measures made available on a pilot basis to the High Court and to Sheriff Courts for residents in Glasgow (from October 1999), Fife (from July 2000) and Aberdeen/Aberdeenshire (from De- cember 2001). They are now available to all Sheriff courts and the High Court. 6 Totals from 2002/03 include a small number of cases where penalty is un- known. Source: Scottish Government Justice Department: 0131 244 2229 11.17 Persons with charge proved 1: by age and sex Scotland Numbers 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Males KEWA 114 884 106 654 92 919 100 874 104 312 107 932 108 460 107 801 113 472 112 768 105 908 Under 16 KEWB 112 75 56 80 129 96 107 133 121 156 106 16 to 20 KEWC 27 399 24 671 21 973 23 701 23 948 23 454 23 098 24 051 25 513 24 366 20 349 21 to 30 KEWD 43 599 40 048 35 251 38 441 39 405 40 053 39 336 38 078 40 390 41 216 38 764 Over 30 KEWE 42 857 41 047 34 957 38 362 40 811 44 324 45 913 45 536 47 446 47 030 46 689 Age not known KEWF 917 813 682 290 19 5 6 3 2 − − Females KEWG 17 405 16 188 15 302 15 871 18 160 20 120 20 775 20 039 20 599 20 560 19 511 Under 16 KEWH 2 5 10 4 5 17 18 8 9 3 18 16 to 20 KEWI 3 252 3 089 2 768 2 742 2 840 2 927 2 891 2 929 3 255 3 302 2 802 21 to 30 KEWJ 6 872 6 219 5 833 6 200 6 843 7 494 7 652 7 387 7 398 7 385 7 281 Over 30 KEWK 6 971 6 614 6 448 6 854 8 468 9 680 10 214 9 715 9 935 9 870 9 410 Age not known KEWL 308 261 243 71 4 2 − − 2 − − Males and Females KEWM 132 298 122 858 108 279 116 768 122 484 128 068 129 253 127 848 134 077 133 342 125 419 Under 16 KEWN 114 80 66 84 134 113 125 141 130 159 124 16 to 20 KEWO 30 652 27 761 24 746 26 444 26 790 26 381 25 989 26 981 28 768 27 668 23 151 21 to 30 KEWP 50 473 46 272 41 094 44 652 46 252 47 556 46 993 45 468 47 788 48 606 46 045 Over 30 KEWQ 49 829 47 665 41 437 45 226 49 285 54 011 56 140 55 255 57 387 56 909 56 099 Age not known KEWR 1 230 1 080 936 363 23 7 6 3 4 − − Companies KEWS 659 562 316 320 343 451 480 353 294 241 11 Total persons with charge proved2 KEWT 132 957 123 420 108 595 117 089 122 827 128 519 129 733 128 201 134 363 133 076 125 430 1 See chapter text. 2 Includes sex unknown. Source: Scottish Government Justice Department: 0131 244 2229 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_16.xls http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_17.xls 182 Crime and justice 11.18 Penal establishments: average daily population and receptionsScotland Numbers 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Average daily population Male KEPB 5 765 5 676 5 929 6 193 6 307 6 447 6 523 6 830 7 005 7 422 Female KEPC 210 207 257 282 314 332 334 353 371 413 Total KEPA 5 975 5 883 6 186 6 475 6 621 6 779 6 857 7 183 7 376 7 835 Analysis by type of custody Remand KEPD 976 881 1 019 1 247 1 246 1 216 1 242 1 567 1 560 1 678 Untr ied JTT6 873 771 898 1 102 1 085 1 031 1 025 1 325 1 305 1 414 Convicted awaiting sentence JTT7 103 109 120 145 161 185 217 242 255 264 Young offenders JTT8 270 220 256 272 251 260 284 361 355 334 Adults JTT9 706 661 763 975 995 956 958 1 206 1 205 1 344 Persons under sentence: total KEPE 4 997 5 001 5 165 5 226 5 375 5 561 5 614 5 615 5 815 6 156 Adult prisoners KEPF 4 317 4 346 4 537 4 624 4 802 5 001 4 989 4 970 5 130 4 887 Young offenders KEPI 679 655 628 601 573 560 625 645 685 659 Young offenders (Fine defaulters)2 JTU2 7 9 9 9 7 7 6 5 3 1 Adults (Fine defaulters)2 JTU3 49 55 49 53 57 54 48 42 26 10 Persons recalled from super vision/licence1 KEPN 100 145 202 250 310 356 400 519 614 599 Others1 KEPO 28 36 37 6 6 5 1 − − − Persons sentenced by cour t mar tial1 KEPP 2 − − − − 1 − − − 1 Civil prisoners1 KEPQ 1 1 1 2 − 1 1 1 1 − Receptions to penal establishments Remand KEPR 14 626 14 062 15 725 19 198 18 963 18 892 19 593 23 181 22 491 22 754 Male KEPS 13 450 13 042 14 402 17 455 17 111 17 085 17 796 21 129 20 256 20 416 Female KEPT 1 176 1 020 1 323 1 743 1 852 1 807 1 797 2 052 2 235 2 338 Persons under sentence: total KEPU 20 336 19 136 18 953 20 084 19 357 18 584 19 477 20 403 18 227 16 576 Male KEPV 19 125 17 953 17 755 18 779 18 013 17 272 18 161 19 018 17 011 15 443 Female KEPW 1 211 1 183 1 198 1 305 1 344 1 312 1 316 1 385 1 216 1 133 Impr isoned: Adults: directly KEPX 9 217 8 943 9 470 10 571 10 255 10 299 10 746 11 684 11 846 12 381 in default of fine2 KEPY 7 030 6 450 5 882 6 081 6 063 5 404 5 442 5 265 3 208 1 321 Sentenced to young offenders’ institution: directly KEQA 2 582 2 436 2 312 2 207 1 949 1 908 2 170 2 286 2 359 2 269 in default of fine2 KEQB 1 328 1 116 1 109 1 016 825 694 771 698 402 185 Persons recalled from supervision/licence3 JYYD 179 191 180 209 265 279 348 470 412 420 Persons sentenced by cour t mar tial KEQH 3 2 2 3 1 5 − − 1 1 Civil prisoners2 KEQI 17 10 8 11 10 7 4 4 11 4 1 Persons recalled from supervision/licence and others are included in per- sons under sentence. Persons sentenced by cour t mar tial and civil prison- ers are not included in persons under sentence. 2 Includes in default of compensation orders. 3 Now covers all recalls from supervised release orders. Source: The Scottish Government Justice Department: 0131 244 8740 11.19 Expenditure on penal establishments 1 Scotland Years ended 31 March £ thousand 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 /99 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Depar tmental Expenditure Manpower and Associated Services KPHC 144 660 170 347 160 242 172 490 168 593 169 784 181 931 200 742 199 854 206 298 214 346 Pr isoner and Associated Costs KPHD 18 891 22 930 23 501 24 652 23 363 51 070 42 767 28 582 41 821 29 408 29 793 Capital Expenditure KPHE 23 697 28 918 24 283 24 955 36 519 34 617 72 812 70 406 81 818 53 564 100 231 Gross Expenditure KPHF 187 248 222 195 208 026 222 097 228 475 255 471 297 510 299 730 323 493 289 270 344 370 Less Receipts KPHG 8 160 6 668 8 380 8 194 3 485 3 298 3 312 2 872 2 178 2 034 2 579 Net Departmental Expenditure KPHH 179 088 215 527 199 646 213 903 224 990 252 173 294 198 296 858 321 315 287 236 341 791 Plus Annually Managed Expenditure Capital Charges DSJI .. .. .. 31 341 40 432 41 728 48 497 52 840 41 816 59 498 89 656 Total Net Expenditure DSNX 179 088 215 527 199 646 245 244 265 422 293 901 342 695 349 698 363 131 346 734 431 447 1 See chapter text. Source: The Scottish Executive Justice Department: 0131 244 2226 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_18.xls http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_19.xls 183 Crime and justice 11.20 Recorded crime statistics: by offence group 1 Nor thern Ireland Thousands Old counting rules New counting rules 1996 1997 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 /00 /01 /02 /03 /04 /05 /06 /07 /08 /09 Violence against the person RVCP 5.6 5.2 RVCQ 21.4 21.4 26.1 28.5 29.0 29.3 31.0 31.8 29.6 29.5 Sexual offences RVCR 1.7 1.4 RVCS 1.3 1.2 1.4 1.5 1.8 1.7 1.7 1.8 1.8 1.9 Burglar y RVCT 16.1 14.3 RVCU 16.1 15.8 17.1 18.7 16.4 13.4 12.8 11.6 11.7 12.5 Robber y RVCV 1.7 1.7 RVCW 1.4 1.8 2.2 2.5 2.0 1.5 1.7 1.6 1.1 1.3 Theft RVCX 32.8 29.5 RVCY 37.0 36.9 41.7 41.9 35.7 31.1 29.5 27.8 24.7 26.2 Fr aud and forger y RVCZ 4.1 3.8 RVDA 7.9 8.0 8.6 8.8 6.3 5.2 5.1 4.5 2.8 3.6 Cr iminal damage RVDB 4.8 4.7 RVDC 31.2 32.3 40.0 36.6 32.4 31.4 34.8 36.3 30.9 28.4 Offences against the state RVDD 0.4 0.5 RVDE 0.7 0.8 1.2 1.8 1.3 1.2 1.3 1.3 1.1 1.4 Other notifiable offences RVDF 1.2 1.1 RVDG 2.1 1.7 1.4 2.4 3.2 3.3 5.3 4.5 4.7 5.3 of which drug offences RVDH 1.1 1.0 RVDI 1.7 1.5 1.1 1.9 2.6 2.6 2.9 2.4 2.7 3.0 Total RVDR 68.5 62.2 RVDS 119.1 119.9 139.8 142.5 128.0 118.1 123.2 121.1 108.5 110.1 1 See chapter text. Source: The Police Service of Norther n Ireland 11.21 Persons found guilty at all courts: by offence group 1 Nor thern Ireland Numbers 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Violence against the person KYCT 1 597 1 594 1 596 1 699 1 858 1 621 1 790 1 965 2 012 2 009 2 296 Sexual offences KEVG 184 130 128 90 130 112 84 108 137 136 161 Burglar y KYBW 801 715 647 703 703 496 595 602 620 557 532 Robber y KYBX 161 166 134 129 122 121 152 192 159 135 149 Theft KYBY 2 765 2 596 2 342 1 995 2 111 1 831 1 695 1 803 1 819 1 819 1 728 Fr aud and forger y KYBZ 467 491 426 476 403 398 362 314 359 330 333 Cr iminal damage KYCA 1 076 1 163 1 043 931 1 060 917 957 1 034 1 094 1 168 1 295 Offences against the state KYCB 147 165 198 178 174 158 215 274 252 270 348 Other indictable2 KYCC 899 739 936 943 700 495 453 527 636 722 793 Total indictable3 KYCD 8 097 7 759 7 450 7 144 7 261 6 149 6 303 6 819 7 088 7 146 7 635 Summar y4 KYCE 4 402 4 435 4 062 3 598 3 967 3 735 3 453 3 514 3 622 3 575 3 645 Motor ing5 KYCF 18 177 18 770 15 369 15 782 15 390 14 466 14 344 16 342 17 215 15 534 15 083 All offences KYCG 30 676 30 964 26 881 26 524 26 618 24 350 24 100 26 675 27 925 26 255 26 363 1 See chapter text. 2 1998 and 1999 figures include ’dangerous driving’ (a triable-either-way offence). 3 From 2000, includes ’indictable-only’ motoring offences. 4 Excludes motoring offences. 5 Prior to 2000, includes all motoring offences (except for note 2 above). From 2000, includes summary and triable-either-way motor ing offences. Source: Norther n Ireland Office: 028 9052 7157 11.22 Juveniles found guilty at all courts: 1 by offence group Nor thern Ireland Numbers 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Violence against the person KYCH 75 49 97 73 77 66 82 75 78 146 152 Sexual offences KAHF 4 8 12 12 4 1 6 5 7 9 8 Burglar y KYCI 137 124 108 117 125 73 77 89 66 113 81 Robber y KYCJ 13 18 4 7 15 8 14 10 6 8 11 Theft KYCK 338 334 304 227 254 244 212 173 183 291 202 Fr aud and forger y KYCL 14 11 4 10 2 9 3 7 2 6 7 Cr iminal damage KYCM 121 136 139 102 143 152 132 162 129 241 240 Offences against the state KYCN 6 10 11 12 8 10 20 26 18 19 40 Other indictable2 KYCO 24 10 20 17 10 12 7 19 22 46 44 Total indictable3 KYCP 732 700 699 577 638 575 553 566 511 879 785 Summar y4 KYCQ 182 198 187 163 180 203 194 174 135 296 258 Motor ing5 KYCR 58 57 98 97 82 102 89 94 76 280 230 All offences KYCS 972 955 984 837 900 880 836 834 722 1 455 1 273 1 See chapter text. For the purpose of criminal proceedings, prior to 30 August 2005, a juvenile refers to a person aged 10 years or more but under 17. From 30 August 2005, the youth justice system was extended to include those under the age of 18. The number of juveniles convicted in 2005 and 2006 refers to those aged 10 years or more but under 18. 2 1998 and 1999 figures include ’dangerous driving’. 3 From 2000, includes ’indictable-only’ motoring offences. 4 Excludes motoring offences. 5 Prior to 2000 includes all motoring offences (except for note 2 above). From 2000, includes summary and triable-either-way motor ing offences. Source: Norther n Ireland Office: 028 9052 7157 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_20.xls http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_21.xls http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_22.xls 184 Crime and justice 11.23 Disposals given to those convicted by cour tNor thern Ireland Numbers 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Magistrates court - all offences Pr ison1 KYAO 1 003 989 996 1 278 1 356 1 048 1 107 1 133 1 101 977 1 018 Custody Probation Order1 EOG9 .. .. .. .. .. .. .. 7 7 9 12 Young offenders centre KYAP 443 430 326 243 191 209 288 395 456 416 366 Tr aining school2 KYAQ 147 148 136 13 .. .. .. .. .. .. .. Juvenile Justice Centre order2 OEUX .. .. .. 22 78 72 58 48 50 50 35 Total immediate custody KYAR 1 593 1 567 1 458 1 556 1 625 1 329 1 453 1 583 1 614 1 452 1 431 Pr ison suspended KYAS 1 722 1 506 1 025 1 080 1 247 1 215 1 278 1 407 1 469 1 584 1 692 YOC suspended KYAT 444 461 139 104 93 77 100 201 372 375 335 Attendance centre KYAU 91 66 55 14 20 37 84 91 108 127 132 Probation/super vision3 KYAV 1 134 1 155 1 473 1 246 1 096 1 070 1 005 974 991 977 1 045 Community service order KYAW 591 561 622 678 726 587 643 623 647 628 597 Combination order OEUZ .. .. 38 7 48 24 36 96 78 106 133 Fine4 KYAX 20 614 21 313 17 956 18 076 17 716 16 439 15 968 17 546 18 520 17 231 17 311 Recognizance KYAY 1 203 1 267 1 134 1 089 1 357 810 912 1 091 913 853 693 Conditional discharge KYAZ 1 679 1 597 1 538 1 439 1 286 1 559 1 497 1 526 1 524 1 326 1 093 Absolute discharge KYBA 509 424 303 223 242 209 163 201 183 148 129 Youth conference order5 GGL8 .. .. .. .. .. .. .. .. 21 74 304 Community responsibility order GGL9 .. .. .. .. .. .. .. .. 1 32 71 Reparation order J8FR .. .. .. .. .. .. .. .. .. .. 1 Other KYBC 15 8 123 221 57 61 104 215 190 122 61 Total KYBD 29 595 29 925 25 864 25 733 25 513 23 417 23 243 25 554 26 631 25 035 25 028 Crown cour t - all offences Pr ison1 KYBE 469 475 520 386 521 407 410 238 259 248 318 Custody Probation Order1 EOH2 .. .. .. .. .. .. .. 331 332 370 416 Young offenders centre KYBF 106 111 63 67 32 42 23 51 47 41 38 Tr aining school2 KYBG − 4 2 − .. .. .. .. .. .. .. Juvenile Justice Centre order2 VQEV .. .. − − − − 2 − − − 1 Total immediate custody KYBH 575 590 585 453 553 449 435 620 638 659 773 Pr ison suspended KYBI 253 220 199 185 313 262 220 240 262 260 267 YOC suspended KYBJ 71 60 49 41 48 37 35 50 72 45 42 Attendance centre KYBK − − − − − − 1 − − − 1 Probation/super vision3 KYBL 49 47 70 43 68 48 49 63 93 79 91 Community service order KYBM 54 37 33 24 29 45 25 27 33 31 32 Combination order ZAEP .. .. 13 6 7 5 18 34 33 40 22 Fine4 KYBN 39 40 25 20 40 38 32 49 108 57 51 Recognizance KYBO 7 10 7 − 4 11 12 8 6 9 8 Conditional discharge KYBR 30 31 23 17 38 36 20 24 45 28 33 Absolute discharge KYBS − 1 6 − 3 − 6 1 1 6 4 Youth conference order5 GGM2 .. .. .. .. .. .. .. .. − − 5 Community responsibility order GGM3 .. .. .. .. .. .. .. .. − − − Reparation order J8FS .. .. .. .. .. .. .. .. .. .. − Other KYBU 3 3 7 2 2 2 4 5 3 6 6 Total KYBV 1 081 1 039 1 017 791 1 105 933 857 1 121 1 294 1 220 1 335 1 Custody Probation Orders cannot be separately identified from ’prison’ sentences from 1998 to 2002. Thus during this timeframe, figures for pr ison include custody probation orders. 2 The Juvenile Justice Centre order replaced the training school order from 31st Januar y 1999. 3 Super vision orders were abolished with the introduction of the Criminal Justice (Children) Norther n Ireland Order 1998. 4 From 2000, fine incorporates ’fine plus disqualification’ and ’fine plus penalty points’. 5 Refers to the number of youth conference orders completed. Source: Norther n Ireland Office: 028 9052 7157 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_23.xls 185 Crime and justice 11.24 Prisons and Young Offenders CentresNor thern Ireland Receptions and average population Numbers 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Receptions: Reception of untried pr isoners KEOA 2 188 2 284 2 497 2 197 1 922 2 337 2 439 2 440 2 776 3 193 2 929 Reception of sentenced prisoners: Impr isonment under sentence of immediate custody1 KEOB 1 062 949 963 1 001 791 916 1 032 975 966 1 075 1 123 Impr isonment in default of payment of a fine KEOC 1 513 1 530 1 423 1 261 1 090 990 1 143 1 296 1 437 1 569 1 425 Total KEOD 2 575 2 479 2 386 2 262 1 881 1 906 2 175 2 271 2 403 2 644 2 548 Reception into Young Offender Centres: Detention under sentence of immediate custody KEOE 331 347 346 282 252 315 268 287 222 229 247 Detention in default of payment of a fine KEOF 366 385 417 389 303 250 310 351 377 382 299 Total KEOG 697 732 763 671 555 565 578 638 599 611 546 Other receptions2 KEOL 42 70 38 56 58 57 117 106 134 24 38 Daily average population: Unconvicted3 KEON 376 383 377 317 272 347 393 456 450 531 531 Convicted4 KEOP 1 256 1 124 867 751 638 679 767 818 851 902 935 Total KEOM 1 632 1 507 1 244 1 068 910 1 026 1 160 1 274 1 301 1 433 1 466 1 Includes those detained under Section 73 of the Children and Young Per- sons (NI) Act 1968. 2 Non-cr iminal pr isoners including those imprisoned for non-payment of maintenance, non-payment of debt, contempt of court or are being held un- der the terms of an Immigration Act. 3 Prisoners on remand or awaiting trial and prisoners committed by civil process. 4 Includes those sentenced to immediate custody and fine defaulters. Sources: The Norther n Ireland Prison Population in 2007; Nor thern Ireland Office: 028 9052 7534 http://statistics.gov.uk/downloads/theme_compendia/AA2010/11_24.xls Crime and Justice Recorded crime statistics Court proceedings and police cautions Expenditure on penal establishments in Scotland 
work_tsfkguffrrahxcubsvdkv3nr7e	----	Perspective Distributive justice and regenerative medicine John Gardner*,1 1Department of Sociology, School of Social Sciences, Monash University, W414 Menzies Building, 20 Chancellors Walk, Clayton, Melbourne, 3800, Australia * Author for correspondence: john.gardner@monash.edu Many countries have identified regenerative medicine as a strategic priority, and have thus launched a range of initiatives to facilitate innovation in the field. This perspective paper argues that several initia- tives involve resource distributions that could impinge on widely accepted egalitarian notions of fairness and justice that underpin current healthcare systems. Specifically, this paper focuses on five initiatives, and argues that these initiatives reflect a largely unacknowledged utilitarian perspective on distributive jus- tice. The intention of this paper is not to argue against these initiatives, but rather to stimulate an open discussion on what qualifies as a just and fair system of resource distribution, so that the regenerative medicine field can responsibly deliver on its clinical potential. First draft submitted: 15 March 2017; Accepted for publication: 7 July 2017; Published online: 2 November 2017 Keywords: bioethics • distributive justice • policy • regulation • reimbursement In the late 1990s and for much of the 2000s, policy activity relating to regenerative medicine (RM) was focused on the ethical utilization of human-derived tissue. In the last 10 years, however, there has been a notable change in emphasis: ‘facilitating translation from the bench to the bedside’, and indeed ‘accelerating’ innovation, have become the primary concerns for policy makers in several countries [1]. In the UK, this is exemplified in multiple reports on the UK’s capacity to foster an RM industry, including the reports from both the House of Lords and House of Commons Science and Technology Committees, and the government-supported RM Expert Group [2,3]. The reports have proposed a range of initiatives for facilitating innovation in the field of RM, including the establishment of new collaborative research programs, adjustments to commissioning systems and regulatory arrangements, and the establishment of specialist centers for providing RM therapies. Many initiatives have already been launched, an obvious example being the establishment of the UK Cell and Gene Therapy Catapult in 2012 and which is now a major actor in the field [4]. In this paper, I will illustrate that several of the enacted and proposed innovation-facilitative initiatives involve resource distributions that ‘could’ impinge on widely accepted egalitarian notions of fairness and justice that underpin current healthcare systems in Europe. Specifically, I focus on five initiatives: the establishment of innovation-accelerator agencies; conditional licensing and risk-sharing schemes; the value-based pricing approach in health technology assessment (HTA); the provision of ear-marked funds to commission innovative therapies; and the proposed establishment of specialist treatment centers. The intention of this paper is not to argue against these initiatives – it may be that such initiatives are necessary, and as I will show in the following section, there are multiple perspectives on distributive justice which have also influenced healthcare systems, and which could provide justification for such measures. Rather, the intention is to stimulate an open (and ideally ongoing) discussion on what qualifies as a just and fair system of resource distribution, so that the RM field can responsibly deliver on its clinical potential. The RM field is currently at a critical juncture. New innovation-facilitative infrastructures are being or will soon be forged that, according to some commentators, are representative of a major transformation in the organization of biomedical R&D and healthcare provision more generally [5–7]. It is vital that the potential repercussions of proposed initiatives are carefully considered before they bring about what could become obstinate institutionally embedded infrastructures. Deliberations on redistributive justice within promissory biomedical projects such as RM are especially pertinent in the current political context 10.2217/rme-2017-0036 C© 2017 John Gardner Regen. Med. (2017) 12(7), 865–874 ISSN 1746-0751 865 For reprint orders, please contact: reprints@futuremedicine.com Perspective Gardner of the UK: in effect, resources have been redirected from services that provide much-valued assistance to people in the present day. In the following section, I provide a brief overview of theories of distributive justice. I focus predominately on the egalitarian and utilitarian understandings of distributive justice, briefly comparing them with libertarian theories, and I illustrate how each of these have influenced various aspects of healthcare provision and governance in several countries. In the third section of this paper, I use these theories of distributive justice as an analytical frame for examining each of the five innovation-facilitating initiatives. I illustrate that these initiatives reflect a largely unacknowledged utilitarian perspective on resource distribution, in which value is promissory in nature and broadly equated to health and national prosperity. Some debates surrounding these initiatives, however, illustrate that egalitarian sentiments have also been influential. In the ‘Conclusion & future perspective’ section, I outline specific issues that require ongoing discussion with a range of stakeholders, so that the field as a whole can responsibly deliver on its significant promise. Theories of distributive justice The rising costs of health services and vast inequalities in access to healthcare illustrate the importance of justice as an ethical concern in biomedicine. Indeed, justice has been championed as one of the four moral principles within Beauchamp and Childress’ foundational "Principles of Biomedical Ethics" [8], and their description of distributive justice provides a useful starting point here. Distributive justice, as they define it, refers to: "Fair, equitable and appropriate distribution determined by justified norms that structure the terms of social cooperation. Its scope includes policies that allot diverse benefits and burdens such as property, resources, taxation, privileges and opportunities" [8]. This formal principle is often articulated using the words attributed to Aristotle: "Equals must be treated equally, and unequals must be treated unequally". It is of course when it comes to identifying the substantive dimensions (i.e., what is actually meant by ‘equal’ and ‘appropriate distribution’) that different theories of distributive justice become apparent. Differing positions, as the above extract suggests, are supported by specific social norms that reflect specific political–philosophical traditions [9]. Arguments from egalitarian theories of justice have been particularly influential in shaping and justifying healthcare provision. In general, egalitarian theories of distributive and social justice presume that an individual’s health status is determined by the ‘lottery of life,’ and is, then undeserved. Additionally, egalitarian theories abide by the fair opportunity rule that states that: "No persons should receive social benefits on the basis of undeserved advantageous properties. . . and that no person shall be denied social benefits on the basis of underserved disadvantageous properties" [9]. Advocates of this position have argued that healthcare provision should therefore be organized in such a way that it will enable each individual to gain access to a normal range of opportunities within society. This, in turn, means that healthcare resources may be unequally distributed, so that those individuals with an (undeserved) poor health status receive additional support [10]. This argument has had widespread appeal and many existing healthcare systems – specifically those that proclaim to provide universal healthcare – are justified with an egalitarian position. A core principle of the National Health Service (NHS) England Constitution, for example, is that "access to NHS services is based on clinical need, not an individual’s ability to pay" [11]. Services are free of charge, and those individuals with greater clinical need (such as a chronic neurological condition) will ideally receive a greater share of health resources. In reality, however, it is not possible to allocate resources purely according to clinical need. Health resources are severally constrained and the clinical benefit of new interventions may be, at least initially, highly uncertain. For these reasons, governance mechanisms such as HTA agencies determine which clinical services will be provided within a healthcare system. HTA authorities such as the UK’s NICE typically rely on systematic assessments of cost–effectiveness: a cost/benefit profile for a candidate therapy is assessed its relation to existing standards of care. Such gate-keeping mechanisms (which are common in many countries and are currently being advocated by the EU Commission) enshrine a ‘utilitarian approach’ to resource distribution [12]. The key principle of utilitarian approaches to distributive justice is that resources should be distributed in such a way that maximizes value (i.e., in such a way that produces the most utility). In healthcare governance, some HTA agencies such as NICE typically use Quality-Adjusted Life Years (QALYs) to represent value/utility, and decisions to commission a therapy will be guided by a determination of its cost per QALY profile. Determining what exactly ‘counts’ as value/utility in 866 Regen. Med. (2017) 12(7) future science group Distributive justice & regenerative medicine Perspective an utilitarian approach is of course up for contestation, and the use of QALYs to represent value/utility has been heavily criticized [5]. As explored further on, proponents of a value-based pricing approach have argued that value should be defined more broadly [13]. Many contemporary healthcare systems, then, enshrine an egalitarian approach in their attempt to provide universal care, and governance mechanisms within these systems often deploy methods that are primarily – but not exclusively – utilitarian. Other healthcare systems, however, also have significant elements that align with a ‘libertarian’ interpretation of distributive justice. The principle concern in libertarian understandings of justice is to protect and affirm the liberty and individual rights of citizens, and hence, the free market is championed as the acceptable means of distributing resources [14]. In a pure form of libertarianism, taxing citizens so that individuals with undeserved, disadvantageous health statuses can enjoy a normal share of opportunities would be deemed unjust. Advocates of libertarianism, however, often support healthcare systems based on insurance that may entail utilitarian or egalitarian redistributions, provided that insurance is voluntarily and privately purchased. Conventionally, the US healthcare system has been aligned with a libertarian approach, but the tax-funded medicare and medicaid schemes do enshrine the egalitarian sentiment that some basic services should be made available to specific disadvantaged groups [8]. The enactment of the Patient Protection and Affordable Care Act (Obamacare) in 2010 can be seen as an attempt to further embed egalitarian distributive justice within the system [15]. There are, then, multiple positions on the substantive dimensions of distributive justice, and current healthcare systems tend to represent points at which different positions – egalitarian, utilitarian and libertarian – are artic- ulated and aligned. Just how they are aligned and coordinated depends of course on the wider sociocultural and political context, and as the contemporary debates around Obamacare illustrate, this can be a prolonged process characterized by considerable conflict. Indeed, issues around distributive justice are often openly debated during major healthcare reform. Biomedical innovation can also entail a reshuffling of resource distribution mechanisms – however, discussions on the repercussions for distributive justice tend to be side-lined in favor of other important ethical concerns. The next section examines some of the translational initiatives in RM and their repercussion for distributive justice. Specific justice issues in RM A diverse range of emerging technologies and techniques fall under the umbrella of ‘regenerative medicine’ and use of the term has tended to vary somewhat [16]. Nevertheless, ‘regenerative medicine’ has been named as a strategic priority by governments such as Canada, UK, Japan and various US states including New York, Massachusetts, California and others [17]. These governments have identified RM as having considerable clinical and economic potential, and have thus set about facilitating the emergence of a ‘health and wealth’ generating RM industry [18,19]. Significant financial resources have been mobilized to do this – the State of California raised US$3 billion from bonds to fund the Californian Institute for Regenerative Medicine (CIRM). Such initiatives align with a more general focus in R&D policy on facilitating the translation of promising developments in the life sciences into clinically useful tools. Mittra has argued that this focus is bringing about a major transformation in the ‘ecosystem’ of biomedical innovation and healthcare provision: new agencies (such as CIRM) have been established, new interdisciplinary collaborations are emerging, novel regulatory frameworks – such as the EMA’s Advanced Therapy Medicinal Products (ATMP) framework – have been negotiated, and other changes to governance structures are also being considered [5]. There is, then, a major transformation in the way in which biomedical resources are distributed and governed. Here, I discuss five specific proposed or enacted initiatives within this emerging ecosystem. State-supported innovation-accelerator agencies: socialized risk, private profit The most significant initiatives to facilitate innovation within RM have been the establishment of so-called innovation-accelerator agencies. Agencies similar to the CIRM have been established in several countries: the Centre for the Commercialization of Regenerative Medicine (CCRM) was launched in Canada in 2011, and the UK’s Cell and Gene Therapy Catapult (CGTC) was launched in 2012 with 70 million GBP in government funding. The aim of these centers is to facilitate the establishment of health and wealth-generating, globally competitive RM industries. The CGTC, for example, describes itself as "a center of excellence in innovation, with the core purpose of building a world-leading cell and gene therapy sector in the UK as a key part of a global industry" [20]. The agencies, then, are concerned with facilitating innovation that specifically involves commercialization and market creation, and they have been structured accordingly. The CCRM, for example, is a public–private partnership that involves representatives from Pfizer, GE Healthcare, Athersys and other pharma and biotech companies of various future science group www.futuremedicine.com 867 Perspective Gardner sizes. Similarly, the CGTC advisory board includes representatives from GlaxoSmithKline, GE Healthcare and AstroZeneca, and their boards of directors have extensive experience in life science industries. The CCRM and CGTC also contain experts on intellectual property, business modelling, regulation and reimbursement hurdles, and on manufacturing and logistics, which can work with academics, clinicians and companies to develop products for an envisaged market [4]. Via such agencies, industry representatives together with other experts in the field are directing public funding toward the commercialization of RM products and techniques. Promising products are being ‘de-risked’ in order to attract investment from large pharma, venture capital and other investors. In effect, public resource is being used to produce assets and commodities that will be privately owned. It is also expected that many of these products will eventually be commissioned by public healthcare systems such as the NHS, probably at a significant price in order to cover the high cost of cell or gene therapy manufacturing. Tax payers, then, will partially cover the cost for developing therapies, and they will collectively commission these therapies. From an egalitarian perspective, this arrangement of distributing public funds may appear to be unjust. Tax- paying citizens share the financial risk of commercial failure, but do not directly financially benefit from the commercial success of products. The direct financial rewards would be shared among industry and investors. It appears, then, that innovation-accelerator agencies are consolidating a system in which there is an unequal distribution of potential benefits and opportunities. An egalitarian position might state that such public funds would be better directed toward social services that can provide those with undeserved disadvantaged properties (chronic illness, or disabilities) with the normal share of social benefits. What we see, however, is that justifications for the innovation-accelerator agencies tend to reflect an unacknowl- edged utilitarian perspective on distributive justice. In the UK, the establishment of the CGTC has been justified as the most expeditious way of bringing about a health and wealth-generating industry [21]. It is positioned, in other words, as a means of maximizing the value of existing public funds, and also as way of maximizing the UK’s strong biomedical science base. The value is promissory, and it is equated with benefits such as new cures, high-paying jobs and an overall increase in national wealth and prosperity. Government supported innovation-accelerator agencies align with what Mazzucato has influentially described as the Entrepreneurial State [22]. The ideal role of the state, she argues is to foster innovation, and it can do so most efficiently by stimulating specific innovation dynamics, such as collaborations between industry and academia, assisting small- and medium-sized enterprises (SMEs) and removing specific innovation hurdles. Accordingly, innovation-facilitating work should be delegated to experts in the field (including industry representatives) rather than being undertaken by politicians or bureaucrats, who would lack the time and expertise to understand the challenges ‘on the ground’. David Willetts, the then Minister for Universities and Science, used these arguments when announcing the UK’s policy on fostering RM in 2013 [23]. The establishment of agencies such as the CGTC and the CCRM illustrate that a particular utilitarian approach to distribution is becoming entrenched in the emerging RM ecosystem. Interestingly, however, Mazzucato argues that such an approach is, on its own, unjust. A fair and just ‘Entrepreneurial State’ is also guided by egalitarian sentiment: tax payers, she argues, should directly financially benefit from the successful commercialization of a product by receiving a share of the profits. Mazzucato makes several recommendations on how this can be achieved – these are briefly addressed in the final section. Conditional approval & risk-sharing: paying for predicted efficacy Governance reform has been the subject of ongoing discussion within the field of RM [24–27]. Commentators have suggested that existing regulatory and HTA frameworks, which emerged to govern drug- and device-based therapies, are poorly suited to accommodating RM products and techniques, and thus represent a formidable hurdle to bring new therapies to the clinic [28]. Specifically, the concern is that these governance mechanisms (including the ATMP framework) require an evidence profile that is too onerous to produce for products and techniques that are highly novel [29]. Much needed investment will thus be directed elsewhere. In response, conditional/provisional marketing authorization schemes have been established such as the EMA’s Priority Medicines (PRIME) scheme, and risk-sharing reimbursement arrangements have been launched or are being considered [30]. The former, such as Japan’s conditional authorization scheme, permits RM products to be provisionally placed on the market earlier in the clinical trials process – after the demonstration of safety, and when efficacy can be predicted rather than demonstrated [31]. Risk-sharing schemes are an arrangement in which the cost of providing the therapy is split over two or more parties. This means that one party does not have to take on the full burden of financial risk for promising therapies that have uncertain clinical benefit profiles. 868 Regen. Med. (2017) 12(7) future science group Distributive justice & regenerative medicine Perspective Distributive justice is highly relevant here, given that such schemes involve a reshuffling of risk and potential benefits among different groups. There are current arrangements in several countries where the health commis- sioners only reimburses a company for those patients who meet certain clinical milestones. In Italy, for example, GlaxoSmithKline will be reimbursed only for those patients who are cured of their adenosine deaminase severe combined immunodeficiency with the gene therapy product, Stremvelis (which costs US$665,000 per patient) [32]. In such schemes, strained healthcare systems are spared additional financial risk (and companies are discouraged from exaggerating the clinical potential of their products). From an egalitarian perspective, such risk-sharing ar- rangements would clearly be more favorable than other proposed schemes. One proposed scenario is that patients themselves pay for a proportion of the cost of therapies, particularly during conditional approval. This arrangement currently exists in Japan. The Regenerative Medicine Promotion Act in 2013 brought about regulatory reform including provisional approval for therapeutic cell products. Therapies can therefore be made available to patients before their efficacy has been proven [33]. Under current reimbursement arrangements, 70% of the cost of these yet-to-be-deemed efficacious therapies is covered by national health insurance and 30% is covered by the patient, potentially placing high-cost therapies out of the reach of low-income citizens [31]. The financial hurdle presented to lower income citizens for accessing potentially revolutionary treatments would not be justifiable within an egalitarian approach. Additionally, the system has also been criticized for "essentially. . . asking patients to pay for the privilege of serving as the subject of medical experiments" [34]. Again, a utilitarian logic appears to underlie such initiatives. For Japan, the Regenerative Medicine Promotion Act is an attempt to build upon the ground-breaking work of Shinya Yamanaka and establishe itself as a world leader in induced pluripotent stem cells (iPSC) technology [35]. Consequently, the conditional licensing of cell therapies is perceived as an expeditious means of promoting innovation in this area by attracting investment. As with the utilitarian logic that underlies the establishment of the innovation accelerator agencies, ‘value’ is promissory in nature and relates to both clinical and economic benefit, and also national prestige. Value-based pricing in HTA Several reports into the UK’s capacity to support an emerging RM industry have explicitly identified the QALY- based approach of NICE as a significant challenge. Many RMs will target diseases with unmet clinical need and with a large burden of illness – not just on the afflicted individual, but on careers, families and indeed wider society. Some treatments will also, however, have high-upfront costs. A QALY-based approach, it is argued, would fail to fully account for the burden of disease and would unfairly disadvantage these high-cost treatments [5]. The value-based pricing (VBP) approach was identified as a more suitable alternative. At one stage, NICE was expected to formally adopt the VBP approach, but after some debate, it has retained the QALY-based approach for the meantime. The implications of these two approaches on distributive justice have, then, been discussed in some depth [36], so I will only briefly recount them here. Advocates of the VBP have argued that the QALY is too narrow: it fails to capture the impact of an intervention on carers, other social services and employment participation, for example [5]. In effect, advocates of VBP are arguing that the QALY-based approach is a flawed means of operationalizing a utilitarian approach to distributive justice. Indeed, some of the arguments against VBP reveal that current HTA methodologies are also supported by egalitarian sentiments: the problem with VBP, it is argued, is that it would unfairly disadvantage interventions for certain groups such as the elderly whose potential social utility (in terms of participation in employment, dependence on carers, etc.) would likely be deemed less than that of others [36]. While such a system may be justified with a purely utilitarian perspective, it would be deemed unjust in an egalitarian perspective, since these groups would be denied social benefits on the basis of their undeserved disadvantageous properties. For the time being, it seems that HTA in the UK represents a space in which some egalitarian sentiment has explicitly been reaffirmed in the face of a more general surge in utilitarian arguments. Privileging innovative therapies with ear-marked funding Concerns over existing HTA systems have also led to the establishment of specific reimbursement funds for therapies that are deemed to be especially ‘innovative’. Again, the justification of these is that highly innovative therapies are unfairly disadvantaged in conventional HTA cost–effectiveness analyses due to the level of evidence required. The specialist ‘innovation’ schemes require a less demanding body of evidence, and they provide funding for the commissioning of a therapy on the expectation that additional evidence will be generated in due course [37]. RMs are likely to make use of these initiatives, and indeed TiGenix attempted to make use of this pathway for their future science group www.futuremedicine.com 869 Perspective Gardner ChondroCelect product with mixed success: ChondroCelect was considered for inclusion in The Netherlands’ ‘Beleidsregel – Dure Geneesmiddelen’ scheme for innovative new medicines, and it was reimbursed in Germany via the ‘Neue Untersuchungs und Behandlungsmethode’ (NUB – New research and treatment methods) scheme [38]. In the UK, the advanced-therapies-manufacturing taskforce has suggested that the government consider establishing a similar fund, especially for cell and gene therapies. Such a fund would be time-limited and dedicated to the early procurement of the therapy within the NHS, enabling the collection of data to permit a thorough cost–effectiveness analysis. These schemes, therefore, create an alternative, less onerous pathway to the clinic for therapies that are deemed to be particularly innovative. Some proposed schemes will involve a significant concentration of resources around these pathways: the recent call to create a formal ‘accelerated access pathway’ within the NHS is an example of this [39]. Once again, we see that promissory expectations – the promise of future clinical and economic pay-off – are shaping the allocation of resources. The ATMP Taskforce, for example, has emphasized the importance of a specialist cell and gene therapy reimbursement fund specifically for encouraging further investment and innovation in the field [37]. Advocates have also, however, drawn on egalitarian arguments as justification for these specialist funds [36,37]. The narrative of these arguments is that individuals with unmet clinical need are unfairly disadvantaged compared with those who have treatment options, and that specialist reimbursement funds and accelerated access pathways will enable these patients to more quickly access promising new therapies. Accordingly, it is implied that the redistribution of resources to target unmet clinical need (rather than to maximize utility) is ethically justified. The Nuffield Council on Bioethics has made this argument in relation to other medical technologies (such as deep brain stimulation) [40], and indeed the same argument can be used to justify any promising technology or technique that will potentially treat unmet clinical need. From this egalitarian perspective, whether or not a therapy is deemed a ‘RM’ (or a ‘cell and gene therapy’) is irrelevant and should not be a criterion for allocating specialist funds for accelerating access. From this perspective, schemes that make no distinction between therapy types would be more justifiable than those that are specifically for cell and gene therapies – such as that proposed by the ATMP Taskforce. Specialist centers for cell & gene therapy treatments In the UK, both the RM Expert Group report and the ATMP Taskforce report have recommended the establishment of specialist clinical centers for delivering cell and gene therapy treatments [2]. This will involve consolidating resources at specific clinical sites that are already leading the field in developing and trialing RMs. These will be hospitals which have access to GMP facilities and that are providing specialized hematological services, and which, then, have the necessary experience in handing live tissues and cells. The ATMP Taskforce has suggested that the government devote £30 million to the establishment of this coordinated national network of ‘Cell and Gene Therapy Centers.’ The fund would be administered by Innovate UK and would be awarded competitively [37]. The centers would represent a partnership between the NHS and industry, in which the NHS provides clinical expertise and patients while industry provides further investment and manufacturing expertise. There is a strong utilitarian argument underlying the proposal. For example, the taskforce argues that the establishment of such centers will provide a degree of stability that will enable companies and other stakeholders to develop infrastructures for supply chains, data-gathering and manufacturing, and to develop and test new business models [37]. The up-front investment, in other words, is an efficient way of facilitating the emergence organizational forms that would constitute a health-creating industry. Consolidating resources for high-cost, highly-specialized therapies at a few specific clinical centers is commonplace within the UK and elsewhere, especially for therapies targeting rare diseases. Inevitably, however, there is a tension between a utilitarian push to cost-effectively support a few specialist centers, and an egalitarian sentiment to avoid exacerbating regional inequalities. These inequalities may relate to ease of access for patients and economic benefits for communities that provide support services for such centers. Many RM therapies on the near horizon will be targeting rare diseases, and it is common sense that one or two specialist centers will be identified to deliver these for large geographic regions. However, in the longer term when new treatments are hopefully approved for widespread chronic conditions, egalitarian considerations will become more pressing when considering centers for delivery. Regional inequalities relating to ease of access have already been identified as a major problem within the UK [41], and it is possible that the emerging RM industry could exacerbate this. 870 Regen. Med. (2017) 12(7) future science group Distributive justice & regenerative medicine Perspective Table 1. Summative table of innovation initiatives within the regenerative medicine field, indicating the issues they raise in relation to egalitarian and utilitarian perspectives of distributive justice. Regenerative medicine innovation initiative Issues relating to egalitarian and utilitarian notions of justice Egalitarian Utilitarian State-sponsored innovation-accelerator agencies These may conflict with EGAL perspectives, as tax payers share financial risk for developing privately owned products and assets Reflects UTIL sentiment in which ‘value’ is promissory and equated with future national ‘health and wealth’ Conditional approval and risk sharing Arrangements in which patients pay partial costs for provisionally approved products conflict with EGAL notions Arrangements in which manufacturers and healthcare providers share risk, such as ‘money-back guarantee’ may align with EGAL notions Reflects UTIL sentiment in which ‘value’ is promissory and equated with future national ‘health and wealth’ Value-based pricing in health technology assessment These conflict with EGAL notions, as some ‘undeserved’ traits of individuals (such as older age) are devalued Broadens understanding of ‘value’ in an UTIL attempt to better align spending/price with value Privileging innovative therapies with ear-marked funding Schemes that facilitate access to unmet clinical need may align with EGAL understandings, provided they do not favor RM therapies over other promising therapies Also reflects UTIL sentiment in which ‘value’ is promissory and equated with future national ‘health and wealth’ Specialist centers for cell and gene therapy treatments Tension between UTIL drive to centralize resource at key specialist centers, and EGAL sentiment to avoid exacerbating regional inequalities UTIL drive to create stability to foster supporting infrastructure development Reflects UTIL sentiment in which ‘value’ is promissory and equated with future national ‘health and wealth’ EGAL: Egalitarian; UTIL: Utilitarian. Conclusion & future perspective: balancing utilitarianism with egalitarianism In their exploration of the political economy of RM, Salter and colleagues have argued that we are seeing is an example of a particular governance style [42]. This is a governance style in which the state secures the allegiance of powerful groups such as academics and scientists (and their institutions), public servants and importantly, industry [43]. This characterization may appear simplistic, but it does highlight the necessity of exploring issues relating to distributive justice: vast resources are being directed toward projects – from which some groups directly benefit – that are still largely promissory in nature. In the UK, this is accompanied by a reduction in social services that can help people in the present day. The five initiatives explored above and the issues they raise in relation to egalitarian and utilitarian perspectives on distributive justice are briefly summarized on Table 1. In this paper, I have suggested that many of the innovation- facilitating initiatives in the field of RM are being justified by arguments that align with a utilitarian approach to distributive justice. This is a utilitarian approach in which ‘value’ and ‘utility’ are largely promissory in nature; it is broadly equated to both future health gains (specifically cures and treatments for unmet clinical need) and future economic gains (a high wealth-generating industry and accompanying employment). In effect, this utilitarian approach to the future is being consolidated in organizational arrangements as innovation-facilitating initiatives are enacted: the formation of the accelerator agencies such as the CCRM and the CGTC is a good example of this. The emerging RM field can be seen as representing the entrenchment of a utilitarian approach to distributive justice. The emerging field, however, is characterized by a diverse range of stakeholders with varying agendas, and tensions between them are inevitable [5]. Arguments that draw on egalitarian sentiments are also informing the emerging RM field. In some cases, such as in the establishment of ear-marked funding for innovative therapies to address unmet clinical need, these approaches to distributive justice appear to align with utilitarian arguments. In other instances, such as the debates over value-based pricing, egalitarian sentiments appear to conflict with utilitarian arguments. The RM field may represent an entrenchment of a particular utilitarianism, but it also provides spaces for the expression of other sentiments and other values. Such tensions and conflicts are, for some commentators, cause for optimism. Mittra, for example, is cautiously optimistic that the emerging new health bioeconomy will provide novel opportunities for a more democratic approach to innovation [5]. The new agencies, collaborations and regulatory adjustments that are characteristic of this new ecosystem, Mittra argues, provide spaces for a range of values – such as those relating to public good, national prosperity, commercialization, cost–effectiveness and clinical and social benefit, to be asserted and to guide innovation practices. (This is in contrast to the past, in which biomedical R&D was dominated by industry and a concern with commercial value, and healthcare governance was dominated by a concern for cost–effectiveness.) If future science group www.futuremedicine.com 871 Perspective Gardner this does indeed occur, then innovation in this new health bioeconomy will better align with the values of wider society, and will be better directed toward societal need – both of which are key tenets of the EU Commission’s Responsible Research and Innovation framework [44]. It is in this vein that this paper has sought to foreground the issue of distributive justice. As the RM continues to unfold, it is necessary to carefully expose the rationales and values that appear to be shaping the development of innovation-facilitative infrastructures. The apparent dominance of utilitarian arguments raises particular problem- atics that need to be openly addressed to ensure that the field does indeed align with the values of wider society. The first of these relates to the opportunity cost of devoting resources on the basis of hope: the predicted benefits of RM are by no means guaranteed, and perhaps resources would be better directed to improving the quality of life of people suffering with illnesses in the present day. Scholarship on the political economy of hope illustrates that it is an immensely powerful resource in the organization of biomedical practices [45–48] but just how much value should we invest in hope, and what are the real opportunity costs of redirecting these resources in this way? Second, it is necessary to continually gauge the palatability of utilitarianism arguments among various stakeholder groups, and to identify ways in which egalitarian-informed arrangements might be established if it is deemed desirable to do so. The debates around the VBP and the decision to retain the QALY-based approach for the time being is an example of this. Other, more general examples include Mazzucato’s proposals aimed at ensuring that the tax-payer is fairly compensated for their original investment (via the state) in innovation-facilitation and research. These include the provision of loans that are only repaid if an innovation is commercially successful, and the establishment of specialist development banks [26]. It may be that such initiatives balance an egalitarian sense of justice with the drive to facilitate a potentially health and wealth generating RM industry, in a manner that is widely palatable. Executive summary � Regenerative medicine (RM) has been identified as a strategic priority in many several countries. � Governments are supporting a range of innovation-facilitating initiatives within the field of RM. � These initiatives involve establishing new resource distribution arrangements, and thus raise important questions relating to distributive justice. Theories of distributive justice � There are multiple positions on the substantive dimensions of distributive justice: egalitarian, utilitarian and libertarian. � Current healthcare systems tend to represent points at which these different positions are articulated and aligned. Specific justice issues in RM � Overall, the emerging RM field appears to involve an entrenchment of a utilitarian approach to resource distribution. � This is a utilitarianism in which value is promissory in nature and broadly equated with health and national prosperity. � Some debates surrounding specific initiatives – such as value-based pricing – indicate that egalitarian arguments still carry some authoritative weight. Conclusion & future perspective � It is important to encourage open debate on the values guiding innovation-facilitating initiatives. � The palatability of utilitarian arguments should be assessed among a range of stakeholders. � Mechanisms for institutionalizing more egalitarian-informed innovation-facilitating initiatives should be considered. Financial & competing interests disclosure This paper derives from the REGenableMED project (Principle Investigator Andrew Webster) funded by the UK’s Economic and Social Research Council (ES/L002779/1). The author has no other relevant affiliations or financial involvement with any organization or entity with a financial interest in or financial conflict with the subject matter or materials discussed in the manuscript apart from those disclosed. No writing assistance was utilized in the production of this manuscript. 872 Regen. Med. (2017) 12(7) future science group Distributive justice & regenerative medicine Perspective Open access This work is licensed under the Attribution-NonCommercial-NoDerivatives 4.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/ References Papers of special note have been highlighted as: • of interest; •• of considerable interest 1. Wainwright S, Williams C, Michael M, Farsides B, Cribb A. From bench to bedside? Biomedical scientists’ expectations of stem cell science as a future therapy for diabetes. Soc. Sci. Med. 63(8), 2052–2064 (2006). 2. Regenerative Medicine Expert Group. Building on our own potential: a UK pathway for regenerative medicine. (2014). www.gov.uk/government/uploads/system/uploads/...data/.../build-on-potential.pdf •• A key document outlining necessary policy changes to support regenerative medicine in the UK. 3. House of Lords. Science and Technology Committee. Regenerative medicine report. (2013). www.publications.parliament.uk/pa/ld201314/ldselect/ldsctech/23/23.pdf 4. Gardner J, Webster A. Accelerating innovation in the creation of biovalue: the cell and gene therapy catapult. Sci. Technol. Human Values 42(5), 925–946 (2017). 5. Mittra J. The New Health Bioeconomy: R&D Policy and Innovation for the Twenty-First Century. Palgrave Macmillan, Basingstoke, UK (2016). •• A detailed account of the changing biomedical innovation ecosystem. 6. Gardner J, Webster A. The social management of biomedical novelty: facilitating translation in regenerative medicine. Soc. Sci. Med. 156, 90–97 (2016). 7. Mittra J, Milne C-P. Introduction to translational medicine. Translational Medicine: The Future of Therapy? Mittra J, Milne C-P (Eds). Pan Stanford, Singapore, 1–18 (2013). 8. Beauchamp T, Childress J. Principles of Biomedical Ethics (6th Edition). Oxford University Press, NY, USA (2009). 9. Cohen R. Distributive justice: theory and research. Soc. Just. Res. 1(1), 19–40 (1987). 10. Daniels N. Just Health Care. Cambridge University Press, NY, USA (1985). 11. Department of Health. The NHS Constitution for England. Department of Health, London, UK (2015). www.gov.uk/government/publications/the-nhs-constitution-for-england 12. Faulkner A. Special treatment? Flexibilities and the politics of regenerative medicine’s gatekeeping regimes in the UK. Sci. Cult. doi:10.1080/09505431.2017.1300641 (2017) (Epub ahead of print). 13. Claxton K, Sculpher M, Carroll S. Value-based pricing for pharmaceuticals: its role, specification and prospects in a newly devolved NHS. Centre for Health Economics, University of York, York, UK (2011). https://ideas.repec.org/p/chy/respap/60cherp.html 14. Nozick R. Anarchy, State, and Utopia. Basic Books, NY, USA (1974). 15. Christopher A, Caruso D. Promoting health as a human right in the post-ACA United States. AMA J. Ethics 17(10), 958–965 (2015). 16. Webster A. The Global Dynamics of Regenerative Medicine: a Social Science Critique. Palgrave Macmillan, Basingstoke, UK (2013). 17. Lewis G. Regenerative medicine at the global level: current patterns and global trends. In: The Global Dynamics of Regenerative Medicine: A Social Science Critique. Webster A (Ed.). Palgrave, Basingstoke, UK, 18–57 (2013). 18. Gardner J, Higham R, Faulkner A. Webster A. Promissory identities: sociotechnical representations & innovation in regenerative medicine. Soc. Sci. Med. 174, 70–78 (2017). 19. Gardner J, Webster A, Mittra J. The Entrepreneurial State and the leveraging of life in the field of regenerative medicine. In: Bioeconomies: Life, Technology and Capital in the 21st Century. Pavone V, Goven J (Eds). Palgrave, Basingstoke, UK, 25–47 (2017). 20. The Cell and Gene Therapy Catapult. About Us. https://ct.catapult.org.uk/about-us 21. Thompson K, Foster E. The cell therapy catapult: growing a UK cell therapy industry generating health and wealth. Stem Cells Dev. 22(S1), 35–39 (2013). 22. Mazzucato M. The Entrepreneurial State. Oxford University Press, Oxford, UK (2013). •• Provides a detailed argument for justifying a more egalitarian approach to innovation. Specific proposals are outlined. 23. Willetts D. Eight Great Technologies.Department of Business, Innovation and Skills. London, UK (2013). www.gov.uk/government/speeches/eight-great-technologies 24. Faulkner A. Law’s performativities: shaping the emergence of regenerative medicine through European Union legislation. Soc. Stud. Sci. 42(5), 753–774 (2012). 25. Mahalatchimy A. Reimbursement of cell-based regenerative therapy in the UK and France. Med. Law Rev. 24(2), 234–258 (2016). 26. Chabannon C, Caunday-Rigot O, Faucher C et al. Accreditation and regulations in cell therapy. ISBT Sci. Ser. 11(S1), 271–276 (2016). future science group www.futuremedicine.com 873 Perspective Gardner 27. Ali R, Hollander A, Kemp P, Webster A, Wilkins M. Regulating cell-based regenerative medicine: the challenge ahead. Regen. Med. 9(1), 77–83 (2014). 28. Omidvar O, De Grijs M, Castle D, Mittra J, Rosiello A, Tait J. Regenerative medicine: business models, venture capital and the funding gap. Innogen, Edinburgh, UK (2014). 29. Corbett M, Webster A, Hawkins R, Woolacott N. Innovative regenerative medicines in the EU: a better future in evidence? BMC Med. 15, 49–57 (2017). 30. Faulkner A. Opening the gateway to market and adoption of regenerative medicine? The UK context. Regen. Med. 11(3), 321–330 (2016). 31. Sipp D. Conditional approval: Japan lowers the bar for regenerative medicine products. Cell Stem Cell 16(4), 353–356 (2015). 32. Regalado A. Gene therapy cure has money-back guarantee. MIT Technology Review (2016). www.technologyreview.com/s/602113/gene-therapy-cure-has-money-back-guarantee/ 33. Tobita M, Konomi K, Torashima Y, Kimura K, Taoka M, Kaminota M. Japan’s challenges of translational regenerative medicine: act on the safety of regenerative medicine. Regenerative Therapy 4, 78–81 (2016). 34. Cryanoski D. Japan to offer fast-track approval path for stem cell therapies. Nat. Med. 19(5), 510 (2013). 35. Mikami K. State-supported science and imaginary lock-in: the case of regenerative medicine in Japan. Sci. Cult. 24(2), 183–204 (2015). 36. Raftery J. Value-based pricing: can it work? BMJ 347, 1–4 (2013). 37. House of Commons Science and Technology Committee. Regenerative medicine: fifteenth report of the session 2016–17. (2017). www.publications.parliament.uk/pa/cm201617/cmselect/cmsctech/275/275.pdf 38. Advanced Therapies Manufacturing Action Plan: retaining and attracting advanced therapies manufacture in the UK. Medicine Manufacturing Industry Partnership. London, UK (2016). www.abpi.org.uk/our-work/mmip/Documents/Advanced-Therapies-Manufacturing-Taskforce-report.pdf 39. Meurgey F, Wille M. The fourth hurdle: reimbursement strategies for regenerative medicine in Europe. In: The Delivery of Regenerative Medicines and Their Impact on Healthcare. Prescott C, Polak J (Eds). CRC Press, London, UK, 337–351 (2010). 40. Accelerated Access Review. Accelerated access review final report: review of innovative medicines and medical technologies. London, UK (2016). www.gov.uk/government/publications/accelerated-access-review-final-report 41. NCoB Novel Neurotechnologies: intervening in the brain. Nuffield Council on Bioethics. London, UK (2013). http://nuffieldbioethics.org/wp-content/uploads/2013/06/Novel neurotechnologies report PDF web 0.pdf 42. Bailoni M. Regional inequalities and political challenges for healthcare in the United Kingdom. Hérodote 4(143), 162–183 (2011). 43. Salter B. State strategies and the geopolitics of the global knowledge economy: China, India and the case of regenerative medicine. Geopol. 14(1), 47–78 (2009). 44. Salter B, Zhou Y, Datta S. Hegemony in the marketplace of biomedical innovation: consumer demand and stem cell science. Soc. Sci. Med. 131, 156–163 (2015). 45. von Schomberg R. A vision of responsible research and innovation. In: Responsible Innovation: Managing the Emergence of Science and Innovation in Society. Owen R, Bessant J, Heintz M (Eds). Wiley, Chichester, UK, 51–57 (2013). • A detailed account of responsible research and innovation, and hence, an important resource on justice in innovation. 46. Petersen A, Munsie M, Tanner C, MacGregor C, Brophy J. Stem Cell Tourism and the Political Economy of Hope. Palgrave, Basingstoke, UK (2016). 47. Petersen A. Hope in Health: The Socio-Politics of Optimism. Palgrave Macmillan, Basingstoke, UK (2015). • A social science analysis of hope and its role in shaping innovation practices in healthcare. 48. Moreira T, Palladino P. Between truth and hope: on Parkinson’s disease, neurotransplantation and the production of the ‘self ’. Hist. Hum. Sci. 18(3), 55–82 (2005). 874 Regen. Med. (2017) 12(7) future science group 
work_tv5s6yo6jnh6jnnz26fhueuksy	----	Justice and Equality JUSTICE AND EQUALITY' WAYNE A. R. LEYS IN HIS judicious and scholarly essay Professor Sabine has clearly indicated what lawyers and social scientists can do in the determination of justice; but I am not sure how he thinks philosophers make their contribution to the subject. If you are in doubt about the justice of an action, Mr. Sabine does not direct you to the avowedly universal moral maxims of Plato, Kant, or Bentham. Rather, fol- lowing his formula, you are to make a factual investigation to determine "an equivalence of burdens and advantages in a relationship that is defined by rules." In this formula there is an unknown, an x, a blank that has to be filled in by empirical inquiry at the scene of judg- ment. That blank is for the specific rules defining the specific relationships of the persons whose action and treatment are to be judged just or unjust. If you sus- pect that the rules and relationships are in the process of changing, you will make further factual studies, as Mr. Sabine did in tracing the changing conceptions of justice in compensating workmen for accidents. The application of the formula of justice clearly calls for the fact-finding methods and the predictions of legal and social science. What I should like to have clarified is whether Professor Sabine believes that not only the application, but also the formulation, of the concept of justice is a fact-finding problem for legal and social science. Is his statement of the nature of justice an empirical generalization that can be verified by examining common usage (to which he frequently refers)? The maxims of Plato, Bentham, and other philosophers are notoriously in- accurate as generalizations of common usage. If we try, as Plato did, to define justice as "every man doing that for which he is best fitted," or, with Bentham, say that it is "equal considera- tion in determining the greatest happi- ness of the greatest number," we are always bumping into situations where an application of the maxim runs coun- ter to common usage. The application seems unjust to us and to other persons whose judgment we respect. The maxims of the grand philosophers do not describe the actual judgments of good and com- petent men. As Stuart Hampshire has said: In any personal or political decision there is a knot of particular reasons influencing action which cannot be unravelled into this tidy pat- tern of calculating the best means to some evident ideal ends.2 If we seek to make moral maxims more accurate, we begin to add qualifications, as many of the British philosophers have done, and we end up with such complexi- ty that the moral maxims become in- communicable and are said to be in- tuitive. Professor Sabine's way out of this dif- ficulty is to deny that the universal moral maxims of Plato, Kant, and Bentham give an answer to the problem of justice. He says that they merely ask a question, If the philosophical component of justice is a question, it has no applicability without local information about the ac- tion situation. As between the British intuitionists and Professor Sabine, I prefer Mr. Sabine's way of retreating from the sweeping assertions of the earlier philoso- phers. About ten years ago I came to the conclusion that all moral principles 17 18 ETHICS make more sense as questions than they do as assertions. But what puzzles me in Professor Sabine's paper is the limited usefulness which he seems to attribute to the philosophical question, particularly in view of the fact that he does not say that his definition of justice is one of these philosophical questions. When Professor Sabine states his for- mula, is he asking one of those moral maxim questions? Is he asking whether, in a given situation, there is an equiva- lence of burdens and advantages in a relationship that is defined by rules? Or does the equivalence formula stand as an empirical generalization which may prop- erly be asserted as a truth, if it turns out to be an accurate summary of com- mon usage? For the purpose of sharpening up the issue, I shall take the position that Pro- fessor Sabine's equivalence formula is a question, and that it is in the same logical class as the universal moral maxims of Kant and Plato. I shall also contend that, although it may somehow be derived from a study of common usage, it cannot be proved by common usage, and that the only proof of which it is susceptible is its power to direct the mind, that is, its power to operate as a persuasive definition. In taking this position, I express the hope that philosophy, though friendly to the scientific enterprise, may cease to imitate the sciences. The logical and ethical standards which are clarified by philosophical inquiry are scientifically insignificant. For the most part, philo- sophical standards are either tautologies or rhetorical questions. What makes them important are the biases and pre- occupations of the human mind. To ap- preciate their importance, it is necessary to consider philosophical standards, not in themselves, but in the hostile contexts where they do their work. Thus, philo- sophical statementsabout justice are most meaningful in situations where their rele- vance is not already evident. To see that this is so, I shall ask you to examine some indeterminate situations in which it is not already settled that something is going to be branded as "just" or "unjust," or in which the prevalent in- terest in justice is quite limited. Professor Sabine recognizes that the concept of "situation" and "position in a situation" are, to use his phrase, "in- trinsic to justice." But he concentrates attention on situations in which persons are acting in a definite capacity relative to one another and in roles that are defined by rules. In situations that are already so determinate, I do not believe that the full force of the equal-treatment question is displayed. In his brief comment on the moral maxim type of questioning, Mr. Sabine notes the indeterminacy of situations in which it is uncertain whether women constitute a special class on account of their sex with special rules appropriate to them. I shall try to turn attention to the indeterminate and unstable situa- tion by an example that may remind you of Bertrand Russell's query to Mr. Dewey: "How large is a situation?"3 I remind you that it has been common practice to pay Negro employees lower wages than the wages of white em- ployees. In the 1940's there were many localities where existing rules and clas- sifications supported this practice as just. Then a war emergency, a labor shortage, and various pressures on the federal gov- ernment resulted in a national wage sta- bilization policy, part of which was "equal pay for equal work." This federal policy intruded itself into many local situations where racial differentials had been the rule. The War Labor Reports for February 23, 1944, refer to a case in Miami, where the regional war labor JUSTICE AND EQUALITY 19 board decided that race differentials must be- rejected in principle, but only part of the difference was eliminated in the instant dispute "so as not to un- stabilize the industry," as the regional board said. This compromising attitude was not typical, for in the leading cases the national board abolished the pre- viously established classifications "white laborer" and "colored laborer," and sub- stituted the simple classification "la- borer."4 When the war ended and wage stabilization ceased to be a federal mat- ter, the situation in which many a dis- pute occurred again shrank to the limits of the locality or region, and racial dif- ferentials reappeared as rules appropriate to the capacities of various persons in the now smaller situation. In the race differential cases, the in- determinacy of the situation is not a radical uncertainty, for whether the dis- pute is perceived as part of a local situa- tion or of a national situation, the situa- tion is justiciable. There is uncertainty only as to which rules are going to be applied equally. I should now like to turn to a more radical indeterminacy-the indetermi- nacy of situations in which the existence of rules and their equitable application ceases to be important. The family situa- tion, mentioned by Aristotle, is an ex- ample. So is the situation that presents itself as a case of distress to which it is not certain whether justice or charity is the appropriate response. I shall also refer to situations whose justiciable char- acter is threatened by engineering fea- tures, by sporting characteristics, and by the characteristics of a national emer- gency. First, a few comments on the national emergency. The question of national security can crowd out the question of -equal treatment. Our courts have, during wartime, dodged the issue of justice in certain cases by saying that the exercise of the war powers was not to be ques- tioned by the courts. Public opinion has tended to perceive the war emergency in terms foreign to the idea of justice. For example, the courts for some time did not try to apply ordinary rules in litigation growing out of the 1942 re- location of the Japanese-Americans. They respected the Army's judgment of "military necessity." Although there were a few eggheads and saints who cried "unfair," the amazing fact was the unconsciousness of injustice. Only two or three members of Congress even expressed doubts.5 The submergence of the rules and of justice is something that has happened during wars. But occasionally a situation is perceived as a national emergency even during a peaceful period. Our Supreme Court upheld Minnesota's mortgage moratorium in 1934. Justice Hughes said, "Contracts should be kept but not at the price of destroying government itself."6 More recently, Congress passed the Taft-Hartley, or Labor-Management Relations, Act of 1947. Title II of that legislation recognizes a class of disputes in which the rights of the parties are subordinated to the claims of the public to continued production. Although Presi- dent Truman refused to invoke the Taft- Hartley Act in the steel strike of 1952, he did use the idea of a national emer- gency in seizing the steel mills.7 The Supreme Court did not sustain President Truman in the steel case, and sentiment always seems to be farther from unanimi- ty in the absence of a big war. Never- theless, the national emergency is a con- stant threat to justice. The complacency about star chamber proceedings and trial without indictment or jury during the Cold War testifies to the power of fear and the desire for security which can be aroused when the situation is an 20 ETHICS emergency. Consider now a happier indeterminacy in the situation that could develop into litigation and again could develop into a process in which roles and rules are not given equal consideration. I refer to the labor-management negotiations that are reported in the National Plan- ning Association's case studies. In one of the steel cases, a manager says to the union negotiator: "Let's keep the lawyers out of this." Such might well be the slogan of the entire series. In the Libby-Owens-Ford study we read: Each side avoids making an issue over the authority and right to set or approve rates. They have learned to look at the setting of new rates as a problem-solving process, not as a tactical battle in defining their respective prerogatives. Both can claim that they are "in the driver's seat." In the eyes of the union leaders this rate-setting policy means "new rates are not put in without our O.K. first; we negotiate every rate." Management puts it this way: "We usually make sure that the union knows what's behind the rate and try to get them to accept it and agree to make the boys give it a trial."8 This problem-solving orientation is a development from the point of view of John Dewey and Mary Follett. Follett persuasively presented the labor dispute as a problem-solving situation, using as a model the extra-legal settlements of bankruptcy cases and the like.9 By per- suading a creditor not to press his legal right to throw the debtor into bank- ruptcy a judge was able to work out a plan of instalment repayment that solved the problem for both creditor and debtor. Such a redefinition of the litigat- ing situation has been accomplished by raising the question of ends and means and by replacing the legal point of view with a problem-solving point of view that is somewhat like an engineering outlook. The same sort of thing sometimes happens in quasi-judicial proceedings, as, for example, when the Pure Food and Drug Administration was prosecuting canners for allowing worms to be canned with blueberries. The canners admitted that they did not know how to prevent the wormy result. Government scientists then went to work on the problem and invented a deworming process for the canners.10 With a problem-solving ori- entation, we do not regard this action as a miscarriage of justice even though the government conferred a favor upon the canners instead of issuing an im- partial cease-and-desist order in accord- ance with the rules. To raise the question of justice in either a national emergency or one of these problem-solving situations is no easy matter, but often the situation is not settled as it appears. Asking about rights and rules, sometimes with great inge- nuity, strong-minded men may succeed in redefining the situation so that it is perceived as an occasion for justice. A third alternative to justice is a ques- tioning that sensitizes us to unusual hardship and stirs our sympathies. Mer- ciful actions in a situation defined as a hardship case are not unjust; they are non-just. If a child begins to cut corners while playing a game, we justly tell him to play according to the rules, unless we perceive that he is sick. In that event, we forget the judgment according to the rules and call the doctor. A policeman rebukes the jaywalker, but if he perceives that the jaywalker is blind, he will stop traffic and escort the blind man. Even when American society was most com- pletely dominated by the ideal of com- petition, there was a minimum standard of living and a minimum standard of competence, below which individuals would be regarded as exempt from or- dinary rules."1 It was the idea of charity JUSTICE AND EQUALITY 21 that kept many of our forebears from resenting as unjust the denial of rights to women. Women were regarded as too weak and defenseless to withstand the rigors of public life. Thomas Jefferson, a man sensitive to many injustices, saw nothing wrong in the exclusion of women from the business of a pure democracy. To prevent deprivation of morals and am- biguity of issue, [women] could not mix pro- miscuously in the public meetings of men.12 Observers who are not participants often see inequities in situations which the participants define as occasions for charity. I shall cite just two examples. One is the jury whose verdict "soaks the rich," especially the rich corporation, for the benefit of a plaintiff whose poverty or ill fortune has become an object of pity. Another example is the administra- tion of religious rites, a work of charity which priests are called upon to perform for tyrants, gangsters, and assorted rascals-who have been guilty of gross injustice, but who in the hour of im- pending death or bereavement are as helpless as their erstwhile victims. Champions of justice are baffled by the callousness of such juries and such priests, but the latter may not be reject- ing the claims of justice. They may be preoccupied with the relief of distress. In order to redefine the situation, the champion of justice not only asks about equal treatment of rights under the laws, but often resorts to rhetorical devices, hoping to shift attention to the non- charitable features of the situation. For instance, there was the judge who in his instructions to a sympathetic jury would tell about the pickpocket who was so moved by the charity sermon that he picked the pockets of nearby worshipers and put the proceeds into the collec- tion.3 Justice and mercy compete in indeterminate situations. A simple moral maxim about justice may be very diffi- cult to enunciate in such circumstances. Another alternative to justice as the nature of a situation is game-playing or amusement. Ordinarily, if the stakes are high, the sense of justice will not disap- pear in favor of game-playing, but there are court proceedings which develop into a battle of wits, so amusing that the outcome is appraised in terms of tech- nique rather than in terms of justice. I refer to some of the "classics," such as the Delaware case in which conviction for stealing a pair of shoes was reversed because both shoes were shown to be for the same foot; and the Illinois case (during the Prohibition era) in which an indictment was thrown out because it charged the defendants with selling liquor one "day" at 8:30 P.M., whereas the almanac proved that the day ended at 8:29. Various legal scholars have expressed the opinion that courts are not now so much disposed to be diverted by ridicu- lous technicalities as they once were. Roscoe Pound cites the Massachusetts case of the mid-nineteenth century: a man accused of taking a wooden pump out of a well in wanton mischief was prosecuted for malicious injury to real estate. His attorney cited cases to prove that a pump was not real estate. When the charge was changed to malicious injury to personal property, the defense "proved" that a pump is not personal property. "The magistrate enjoyed the joke upon himself." "In fact," Pound observes, "many of these legal tricks were looked upon as huge jokes."'4 Whether or not such game-playing is disappearing, the fact remains that law- yers can become absorbed in problems of technique to the neglect of the claims of justice."6 The same is true of laymen, whose sense of justice is at least dulled 22 ETHICS by the enjoyment of games reported in a book like Wellman's The Art of Cross- examination. It is an unusual person who does not relish the recital of the clever tricks of forceful men like Huey Long. The picaresque novel has long been popular, and the beloved rogue continues to appear in best sellers.'6 If an unjust man's exploits are extremely clever and are accompanied by some agreeable per- sonal characteristics, we "can't get mad at him." One of the celebrated cheating inci- dents in American history occurred when public lands in Oklahoma were opened to settlers on April 22, 1889. Those who abided by the rules found that many of the choice tracts had been claimed by men who evaded the border guards and arrived "sooner." This was regarded as such a joke that, to this day, Oklahoma is laughingly referred to as the "Sooner State." It is against a background of game- playing, of national emergencies, of en- gineering, and of charity that the moral maxims about justice must be appraised. "All men are equal," "Give every man his due," and the other formulations of justice do not mean much in themselves. But in an indeterminate situation or a situation dominated by characteristics other than rules, they ask a question that comes with great effort and ingenuity.'7 Indeed, to ask about justice in some circumstances may require a philosophy which questions the justice of every situ- ation, regardless of its prima facie char- acter. It may seem that I have engaged in an empirical, scientific inquiry, with a view to describing non-justiciable situa- tions in the same fact-respecting way that lawyers or anthropologists describe just and unjust situations. I disclaim any intention to contribute to social or legal science. I have used descriptions of na- tional emergencies, engineering prob- lems, charities, and game-playing situa- tions for the sole purpose of developing a typology-showing some alternatives to the interpretation of situations in terms of justice. The business of philo- sophical ideas is to maintain a set of ideas that help us when we are in the process of defining a problematic situation.'8 I now return to my original query. When Professor Sabine defines justice as an equivalence of burdens and advan- tages in a situation defined by rules, is he making an empirical generalization about common judgments or is he asking a philosophical question? If he is asking a philosophical question, I suggest that what makes it philosophical is its power to challenge radical alternatives, such as patriotism, benevolence, sport, etc. Whether it is good philosophy is not determined by its conformity to common usage, even though the question or for- mula may be derived from usage in the sense that some beautiful or persuasive examples may have been selected as models. On this assumption, I offer the follow- ing criticism of Professor Sabine's for- mula. It is an excellent definition in local and domestic situations, wherever custom or sovereign power has in the past established rules for parties that have an adverse-interest relation to one another. Contrariwise, where rules are vague, uncertain, or extremely contro- versial, it seems to me that Professor Sabine's definition of justice is less help- ful than some of the old moral maxims. This is the case when whole industries claim injustice, as the farmers do in demanding "parity." This is the case in international relations where it is often impossible for lawyers and diplomats to find established categories and rules. If JUSTICE AND EQUALITY 23 the lawyers and diplomats cannot find rules, I doubt that the philosophers' symbolic legerdemain will produce any. But a maxim like "equal consideration in the calculation of happiness" may persuasively define some international situations as occasions for justice, where- as Professor Sabine's formula will leave the situation outside the realm of justice for want of rules defining the relationship of the principals."9 This criticism applies to Mr. Sabine's formula only if it is a philosophical stand- ard that operates with the force of a ques- tion in indeterminate situations or in situations that have been defined in terms other than those of justice. If, on the other hand, Mr. Sabine's formula is offered as an empirical generalization from common usage, it must be tested by lawyers and sociologists rather than by philosophers. But-I cannot see why common usage would ever settle the moral nature of justice. ROOSEVELT UNIVERSITY NOTES 1. Paper presented in a symposium of the Western Division of the American Philosophical Association at Indiana University on May 5, 1956. 2. Stuart Hampshire, "Moore's Principia Ethica," in New Statesman and Nation, April 2, 1955, p. 475. 3. Paul Schilpp (ed.), The Philosophy of John Dewey (The Library of Living Philosophers, 1939), p. 139. 4. See National War Labor Board, The Termina- tion Report (Washington, D.C.: Government Print- ing Office, 1947), I, 150, 151. 5. See Morton Grodzins, Americans Betrayed (University of Chicago Press, 1949). 6. Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934). See also the New York rent control case, Block v. Hirsch, 256 U.S. 135 (1921), in which Justice Holmes said, "It is unjust to pursue such profits from a national misfortune with sweeping denunciations," but went on to say that the public interest was sufficient justification for interfering with previously recognized rights of landlords. 7. See Bernstein, Enarson, and Fleming (eds.), Emergency Disputes and National Policy (Harper & Bros., 1955). 8. F. H. Harbison and K. Carr, "The Libby- Owens Ford Glass Company and the Federation of Glass, Ceramic, and Silica Sand Workers of America," The Causes of Industrial Peace ("Na- tional Planning Association Series," 1948). 9. The New State. 10. Cited by Pendleton Herring, Public Adminis- tration and the Public Interest (McGraw Hill Co., 1936), p. 234. 11. For an interesting study of judicial decisions that have been influenced by regard for distress, see Edmond Cahn, The Moral Decision (Indiana University Press, 1956), p. 212. 12. Jefferson, Works, VII, 36. It is appropriate also to refer here to the case for special disability with which Louis Brandeis successfully defended the constitutionality of an eight-hour law for women (Muller v. Oregon, 208 U.S. 412, 1908). This was a mixed case, not pure charity, for the idea of a threat to the public health and national welfare was also employed to exempt women from rules that were then applicable to men. 13. Empirical studies of the mercy-versus-justice theme are complicated by thevariability of the stand- ard of living and the standard of competence. As economic, medical, and other resources increase, the minimum standard changes. In effect, people seem to take a rough look at resources and then decide what they can afford in the form of charity designed to maintain a minimum standard of living. 14. Roscoe Pound, The Spirit of the Common Law, p. 125. 15. See Willard Hurst, The Growth of American Law (Little, Brown & Co., 1950), pp. 368-71; also J. W. Madden, "Is Justice Blind?" Annals of the American Academy of Political and Social Science, Vol. CCLXXX (March, 1952). 16. See Edwin O'Connor, The Last Hurrah (Little, Brown & Co., 1956); also John Kobler, "Profiles [Joseph Cosey]," in New Yorker, February 25, 1956, pp. 38 f. See also the kind of roguish incident which enlivens autobiographies like the one reproduced by Leonard White in The Jacksonians (Macmillan Co., 1954), p. 26. (Champagne was served in the U.S. Senate cloakroom. It was charged as "stationery" against the contingent fund. President pro tem Mangum thought this arrangement incongruous ... and had it charged to the fuel account.) 17. For examples of such ingenuity, see the in- cident recorded on p. 283 of my Ethics for Policy Decisions (Prentice-Hall, Inc., 1952), or the com- ments of William Gomberg on page 52 of The Psychology of Labor Management Relations (Indus- trial Relations Research Association, 1949). 18. I am inclined to take the same typological view of logic, in so far as logic is philosophical. 24 ETHICS It seems unphilosophical when a logician presents the syllogism or Mill's canons or the theorems of algebra in the manner of a teacher of chemistry presenting analytical models and procedures to be followed in chemical analyses. Logic, as a branch of philosophy, is a reminder of the contrasting types of logical structures and the very different tests that are appropriate to these structures, i.e., syl- logism, sets of equations, analogies, generalizations from instances, second-order generalizations, and circumstantial evidence. Logical training, when it is part of philosophy, increases the kinds of resources that a person can mobilize when confronted by an undefined problematic situation. 19. I am not advocating that all international situations be defined in terms of justice. The philo- sophical contribution to international relations is sometimes a presentation of the forgotten claims of justice and sometimes a turning of men's minds away from the model of justice because it is an unpromising approach to the situation. It is always possible that persuasive definitions should lead diplo- mats and the molders of public opinion to perceive the situation as one of racial survival, of hardship meriting charity, or of technology. Robert Dahl comments on the limitations of the legal approach to international politics. He notes that over 60 per cent of our legislators have legal training. "In many ways, no background is better calculated to prevent realistic action in international politics. For the tendency of the lawyer is to interpret reality in terms of legality, to determine foreign policy by legal policy. The treaty process, careful analysis of legal obligations, concepts of 'rights' in the arena of international politics, emphasis on forms-this is the thrust of the lawyer" (Congress and Foreign Policy [Harcourt, Brace & Co., 1950], p. 134). Article Contents p. 17 p. 18 p. 19 p. 20 p. 21 p. 22 p. 23 p. 24 Issue Table of Contents Ethics, Vol. 67, No. 1 (Oct., 1956), pp. i-iv+1-77 Volume Information [pp. i - iv] Front Matter Justice and Equality [pp. 1 - 11] Social Morality and the Principle of Justice [pp. 12 - 16] Justice and Equality [pp. 17 - 24] Mysticism and Ethics: An Examination of Radhakrishnan's Reply to Schweitzer's Critique of Indian Thought [pp. 25 - 41] The Indicative Element in Deontological Words [pp. 42 - 52] Discussion Thomas Mann as a Thinker [pp. 53 - 57] Book Reviews untitled [pp. 58 - 60] untitled [pp. 60 - 61] untitled [pp. 61 - 63] untitled [pp. 63 - 64] untitled [pp. 64 - 68] Shorter Notices [pp. 69 - 72] Books Received [pp. 73 - 74] Reprints, Translations, New Editions [pp. 75 - 77] Back Matter 
work_tybaql5oi5axrooll777l7mzvm	----	LAL2303_03_de_Ville 324..364 Mythology and the Images of Justice Jacques de Ville* Abstract: This essay enquires into the depictions of Justice through the ages, as well as into the myths surrounding these depictions, more particularly in Egypt, Greece, and Rome, as well as in modern times. The essay departs in significant respects from traditional interpretations by seeking to gain from the insights in relation to mythology and the use of symbols provided by psychoanal- ysis, structuralism, Heidegger’s thinking on Being, and deconstruction. Insofar as psychoanal- ysis is concerned, of importance in the present context is Freud’s analysis of symbolism in the interpretation of dreams and in myths, specifically his contention that the symbols employed there almost invariably have a sexual connotation. The approach of Claude Lévi-Strauss is the focus of the detour through structuralism, with Lévi-Strauss challenging certain of the most prevalent ideas in relation to myth, such as that there is some original version of a myth, usually believed to be the earliest version. In the case of Heidegger, of particular importance is his challenge to us “moderns” not to be too quick to believe that we understand ancient texts or the ancient concep- tions of deities. He more specifically questions the common belief that the gods and goddesses are persons or that they are abstract personifications of concepts. Derrida, in his analysis of the texts of Freud, Lévi-Strauss, and Heidegger, further develops the ideas of each of these thinkers, seeking thereby to go beyond the Oedipus complex, beyond the security of structure, and beyond Being. After an analysis of depictions of the goddesses Ma’at, Themis, Dike, and Justitia, based on the insights gained in the preceding analysis, the essay concludes with a reading of the blindfold of Justice in her modern guise, which seeks to exceed metaphysics. Drawing specifically on Derrida’s analysis of blindness in drawing, it arrives eventually not at the essence, but at the an-essence, of justice. Keywords: Ma’at/Themis/Dike/Justitia/Derrida/Freud/Heidegger/Lévi-Strauss 324 Law & Literature, Vol. , Issue , pp. –. ISSN -x, electronic ISSN -. ©  by The Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Per- missions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: ./lal.... I N T R O D U C T I O N Modern depictions of Justice in drawings, paintings, and sculptures usually show a female figure holding a sword and scales. She is often blindfolded. These depictions are found all over the world in a great variety of locations, including marketplaces, town halls, public fountains, court buildings, and churches.1 Images of Justice are also often found on book covers and in the title pages of law books, in caricatures, and these days, even decorating a variety of products unrelated to law. Her most well-known forebears in mythology are the Egyptian goddess Ma’at and the Greek goddesses Themis and Dike. The Romans referred to her as Justitia, as she remains known today, or alternatively as (Lady) Justice.2 Other accessories asso- ciated with these figures through the ages include a protractor and a plumb line, a cornucopia, fasces, an olive branch, a (law) book or books, a globe, a skull, a foundation stone, a feather, an ostrich, a crane, an eagle, a dove, a snake, a dog, and a lion (Figure 1). These images traditionally have been interpreted along the following lines: the measuring instruments, such as the scale, the protractor, and F I G U R E : Justice, after Raphael: a seated female figure looking at a balance that she holds up in her right hand, her other hand resting on the neck of an ostrich. Engraving, attributed to Andrea Procaccini, ca. –. (Location: British Museum, London, UK. © The Trustees of the British Museum) d e V i l l e • I m a g e s o f J u s t i c e 325 the plumb line, are understood as ensuring or rectifying order and equilibrium; and the sword as symbolizing power or authority. The blind- fold is understood as ensuring impartiality and equal treatment, or meant as criticism, especially in caricatures, of justice that has failed.3 The (law) books are said to point to the binding nature of written law and thus to legal certainty.4 Kissel interprets the cornucopia as a reference to fairness: whereas the scale symbolizes exact calculation, the cornucopia, associated with superfluity and blessing, is said to point to a somewhat less strict enforcement of the law with reference to ethical principles.5 The fasces are generally understood as referring to authority and power, specifically to punish.6 According to Ripa and Maser, the skull refers to human mor- tality, which does not affect Justice, as Justice is eternal.7 The association of Justice with animals is usually understood in terms of the qualities associated with them: the crane pointing to vigilance, the lion to truth and wisdom, and the eagle to strength and power.8 According to Ripa and Maser, the dog refers to friendship and the snake to hatred, neither of which are permitted to influence her judgment.9 The association of Justice with an ostrich has been explained with reference to the equality between the two sides of the ostrich feather—the even length of the feath- ers and the even spread of feathers on both sides of the body—as well as with reference to the ostrich’s reputed digestive ability, which points to the way evidence should be evaluated in court.10 The present essay departs in significant respects from the traditional interpretation of these images. The enquiry to be undertaken will seek to gain from the insights that have been provided in relation to mythology and from the use of symbols by psychoanalysis, structuralism, Heidegger’s thinking on Being, as well as deconstruction, to arrive eventually not at the essence, but the an-essence of justice. Our detour through psychoana- lysis will confront us with Freud’s analysis of symbolism in the interpreta- tion of dreams and in myths. Of importance in this context is specifically Freud’s contention that the symbols employed in dreams and in myths almost invariably have a sexual connotation. The approach of Claude Lévi-Strauss will be the focus of our detour through structuralism. We will see how he challenges certain of the most prevalent ideas about myth, such as that there is some original version of a myth, usually believed to be the earliest version. Additionally, the role of mediators is of great importance for Lévi-Strauss in the analysis of myth and can assist us L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 326 greatly in understanding the role of the goddesses into which we enquire. In Heidegger’s reflections on Being, he challenges us “moderns” not to be too quick to believe that we understand ancient texts or the ancient con- ceptions of deities. To understand something of ancient thinking we need first to rid ourselves of certain preconceptions. In the discussion of the texts of Freud, Lévi-Strauss, and Heidegger, this essay will briefly refer to Derrida’s reading of and intervention in these texts.11 We will see that in each instance he adopts the ideas of these thinkers and simultaneously develops them in a different direction. After a brief exposition of the insights to be gained from these thinkers, we will enquire in detail into some of the different ways the figures associated with Justice have been depicted through the ages, as well as into the myths surrounding these goddesses and the readings that have been and could be given to these images and myths. The essay will conclude with an attempted reading of (all) the images of justice, which will seek to exceed metaphysics, draw- ing specifically on Derrida’s analysis of blindness in drawing.12 F R E U D A N D S Y M B O L I S M Because of the insights it provides into the workings of the unconscious, Freud believed that psychoanalysis could explain the themes in myth in a way similar to the interpretation of dreams. This is because in myth, as in fairy tales, folk sayings and songs, ritual, colloquial language, jokes, and poetic imagination, the same elements or symbols are employed as one finds in dream images and situations.13 This does not mean that there is a complete overlap in relation to the use of symbols. The symbols that one finds in dreams do not necessarily appear elsewhere, and vice versa. In dreams, the symbols employed (a disguised representation of latent thoughts) almost exclusively give expression to sexual objects and sexual relations, whereas in other fields this is not necessarily the case, at least not at first sight.14 One way of explaining this, of which Freud approves, would be with reference to Hans Sperber’s theory that language originated in sexual desire—the calling to oneself of a sexual partner.15 Linguistic roots developed further through the performance of work, as a substitute for sexual activity. Sexual words thus attained an additional meaning in the working context. These words later lost their sexual connotation and attained an independent meaning related to work. d e V i l l e • I m a g e s o f J u s t i c e 327 The identity in the unconscious between a word and a thing, and the fact that the thing was originally referred to by the same word that was used to refer to genitals, thus makes it possible for the thing to become a symbol for genitals in a dream.16 This explains why tools in dreams represent the male sexual organ and why those materials on which work is performed represent the female sexual organ. This in addition explains why dreams employ such a large number of sexual symbols that, as Freud points out, “preserve something of the earliest conditions.”17 The symbols employed in dreams and myths thus appear to stand in an intimate relation to sexuality18— specifically childhood sexuality. Freud was in particular alerted to the impor- tance of the use of symbols in dreams by the observation that his patients could make no associations in relation to these images and events in their dreams. It was also clear that this did not result from resistance. As pointed out above, the same symbols employed in dreams are used in myths and elsewhere. These symbols thus appear to belong to unconscious mental life and are the same despite great differences in language and culture.19 To understand the nature of Derrida’s intervention in relation to Freud’s sexual symbolism, a brief excursus into his “approach” is required here.20 The readings that Derrida undertakes of Freud and others are informed by the insights of Freud and at the same time keep a certain distance from Freud because of the latter’s continuing reliance on the concepts and logic of metaphysics.21 Derrida, like Freud, is of the view that texts are not completely dominated by the intentions of their authors. Texts are hetero- geneous or marked by tensions, and they tend to “repress” something in dealing with the main thesis. By rigorously analyzing the repressed element and its relation to the rest of the text, Derrida shows that that which was repressed actually provides the condition of possibility of the text. The text is then through this deconstructive reading repositioned or reframed. This heterogeneity is of course also a feature of Freud’s texts that makes possible a reading of Freud that exceeds metaphysics. Of importance in this regard is specifically the repositioning by Derrida of the Oedipus complex in relation to Freud’s own notion of the death drive.22 Derrida’s contention in this regard is that the Oedipus complex already involves a “repression” or dissimulation of the “desire” for death, which Derrida couples more closely than Freud with sexual pleasure, a “desire” in other words for absolute pleasure. This “desire beyond desire” thus exceeds and “precedes” the Freudian unconscious. L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 328 Derrida’s reading of Freud has important implications for the latter’s sexual symbolism. Freud’s symbolism is based on the restricted economy of the Oedipus complex and retains the metaphysical assumption of a fixed origin. As appears from Derrida’s analyses of signs and symbols, in for example Speech and Phenomena and Of Grammatology, these cannot be said to be anchored in a signified.23 Any signified is itself in the position of sig- nifier. This does not give way to meaninglessness, however, at least not in its traditional sense. The signs and symbols by means of which we relate to ourselves in everyday life as well as in dreams and myths are made possible by a certain dislocation in the self, of death lodged inside of life, and not through self-presence as is supposed by metaphysics. Freud’s symbols themselves thus take part in a “play” of symbols, which makes them lose their value as symbols, as we will further see below.24 In other words, Freud’s symbols should no longer be understood simply in their Oedipal sense, but in terms of the “desire” for death or for absolute pleasure. L É V I - S T R A U S S A N D S T R U C T U R A L I S M Lévi-Strauss revolutionized the field of anthropology and, more specifi- cally, the study of myth. The idea of an evolutionary and progressive development in man’s rational abilities (of which hints can still be found in Freud) finds its nemesis in Lévi-Strauss. He asserts in this regard that the thinking of “primitive” man is not radically different from that of “modern” man’s scientific, logical, and rational mode of thinking. Accord- ing to Lévi-Strauss, all human beings in fact share the same mode of thought.25 The rigor in thinking moreover remains the same across the ages; only the nature of the things to which such thinking is applied changes, as shown by myth.26 Lévi-Strauss specifically challenges the tradi- tional idea that myths have an original meaning, usually said to be located in the earliest version of the myth. In his analysis of myth, Lévi-Strauss inter alia addresses the Oedipus myth, which we know is of central impor- tance to Freud.27 In the case of Lévi-Strauss, however, this analysis is not undertaken to find the literal meaning of the myth, but more importantly to illustrate the mechanism at work or the structural law of the myth. This “law” does not seek to show “how men think in myths, but how myths operate in men’s minds without their being aware of the fact.”28 d e V i l l e • I m a g e s o f J u s t i c e 329 In his analysis, Lévi-Strauss includes all versions of the Oedipus myth, attempting to find a general pattern. This approach is based on the above- noted premise that there is no true version of the myth, and that an earlier version is not necessarily to be privileged over later versions.29 This approach ties in with Saussure’s insight into the relation between meaning and language, which is that the value of a sign within language is not an inherent characteristic of such sign, but a consequence of the differences between signifiers and signifieds.30 According to Lévi-Strauss, the myth in all its forms is an attempt to deal with the contradictory views in Greek thinking concerning the origins of man, that is, whether he is autochtho- nous (from the earth itself, born of himself through the agency of nature, as Oedipus, abandoned as a child, appears to be) or whether he comes from the sexual union between man and woman. In its derivative form, the question it seeks an answer to is whether man is born from the same or from what is different. Lévi-Strauss arrives at this interpretation through an analysis of the different versions of the myth according to the Saussurean distinction between parole (the different versions of the myth) and langue (the underlying structure), as well as between the syn- chronic and diachronic aspects of language. In this way, the myth, includ- ing all known versions, is shown to have a layered structure. In this analysis of the various versions of the Oedipus myth, which we cannot explore here in detail, Lévi-Strauss points to the important role played by “mediators” in myth. The sphinx in the Oedipus myth appears to play a similar mediating role to the ambiguous and equivocal characters he mentions from other myths, such as the trickster in the form of a raven or a coyote. These are intermediaries between carnivorous and herbivo- rous, like mist between sky and earth.31 Other intermediaries mentioned by Lévi-Strauss include a scalp (between war and agriculture, a scalp being a war-crop), corn smut (between wild and cultivated plants), garments (between nature and culture), refuse (between the village and the outside), and ashes (between the roof/sky and hearth/ground). The sphinx is a hybrid, mythic creature and, as Lévi-Strauss points out in a footnote, also a female monster or phallic mother who terrifies and then rapes young men. Segal aptly refers to the sphinx as an “anomalous hermaphrodite monster.”32 Lévi-Strauss speaks in this regard of a chain of mediators that can easily replace each other in mythology, as they have essentially the same function, and that probably also characterize daily experience. L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 330 He refers in the latter respect to the French word for plant smut (nielle), which comes from the Latin nebula (mist), and to the luck-bringing power associated with refuse (an old shoe) and ashes (kissing the chimney sweep).33 The gods in mythology, Lévi-Strauss points out, similarly act as mediators, which explains why they have contradictory attributes, for example, being both good and bad at the same time.34 Lévi-Strauss again deals with the issue of mediation in The Origin of Table Manners. He contends that food taboos, good manners, the taboos on menstruating women, women who have recently given birth or miscar- ried, grave-diggers, widows and widowers, and those performing sacred rites, as well as puberty rites, education for girls, table and other mediatory utensils (such as combs, hats, head-scratchers, gloves, straws, forks) all have a similar mediating function. They seek to ward off the dangers of extremes, that is, of a cessation of regular periodicity or of overly rapid pe- riodicity. In mythical thinking, Lévi-Strauss points out, extremes are often described such as eternal day or eternal night, as well as barrenness, prema- ture aging, and madness. In the case of human beings as well as in nature, the manifestation of such extremes can be the consequence of nonadherence to these restrictions. It is believed that women, being periodic creatures themselves, are most in need of education and social subordination.35 They are constantly threatened, and through them the whole world is threatened, either by the slowing down or the acceleration of the flow of events.36 Daily, monthly, and seasonal periodicity as well as periodic menstruation, pregnancy, and childbirth need to be ensured.37 Lévi-Strauss ties this need for periodicity in women to the transition from nature to culture: The transition from nature to culture demands that the feminine organism should become periodic, since the social as well as the cosmic order would be endangered by a state of anarchy in which regular alternation of day and night, the phases of the moon, feminine menstruation, the fixed period for pregnancy and the course of the seasons did not mutually support each other.38 A certain distance therefore needs to be imposed to reduce the tension between the poles. This is done through insulators or mediators—that is, utensils, education, and taboo—that are imbued with inertia to “moderate our exchanges with the external world, and superimpose on them a domes- ticated, peaceful and more sober rhythm.”39 Lévi-Strauss here specifically d e V i l l e • I m a g e s o f J u s t i c e 331 mentions the celestial canoe, which has a similar function in relation to the course taken by the sun (and the moon) as well as in the choice of marriage partners, which we will encounter again in our discussion of the goddess Ma’at. According to Derrida, structuralism takes certain important steps in questioning the assumptions of metaphysics. Structuralism’s relation to metaphysics nonetheless remains ambivalent, and at times it is not vigilant enough about its reliance on the concepts of metaphysics in its critique thereof. This for example is the case in relation to the opposition between nature and culture referred to above. In the case of Lévi-Strauss, this con- tinual attachment to metaphysics follows from both the fact that the full implications of the idea of a classificatory structure are not grasped as yet and from a residual nostalgia for origins and pure presence.40 The notion of a structure, as Derrida points out, has operated since the incep- tion of Western philosophy with the idea of a center, point of presence, or fixed origin that keeps the structure in place.41 This center has in addition the role of limiting the “play” of the structure, the field of infinite substi- tutions, as Derrida refers to it.42 Within the traditional concept of struc- ture, “play” in this sense is allowed, but only within certain definable limits. The center is therefore inside the structure, yet it is also “outside” the structure in the sense that it is not itself subject to the play of the structure.43 A certain reading of Lévi-Strauss must be adopted if the metaphysics implicit in his texts is to be exceeded. The heterogeneity of Lévi-Strauss’s texts indeed allows for this. In the analysis of myths, as Derrida points out, Lévi-Strauss in fact abandons the idea of a center, a subject, a privi- leged reference, an origin, or an absolute archia.44 Derrida refers here to the Bororo myth that Lévi-Strauss analyzes in The Raw and the Cooked, but the same could be said to apply to the analysis of the Oedipus myth referred to above. In his discussion of the Bororo myth that he employs as a “reference” or “key” myth, Lévi-Strauss points out that the myth nevertheless does not have any referential privilege and that it is simply a transformation of other myths in operation in Bororo society or bor- rowed from other societies.45 Furthermore, the myth has no unity, nor absolute force; it has an a-centric structure. The discourse on myth should, according to Lévi-Strauss, follow suit and can therefore not be a scientific or philosophical discourse. To give a unity to myth would have to involve L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 332 a projection. The discourse on myth must therefore renounce the epistemic discourse that requires an origin, founding basis, or center. It must also do without a subject and an author, as myths are themselves anonymous. Consequently, a book on myth must itself be a kind of myth, mythopoetic, or as Derrida refers to it, “mythomorphic.”46 Myth and the discourse on myth thus have no center that halts and grounds the play of substitutions.47 In his Introduction to the Work of Marcel Mauss, we find an indication of this more radical idea of play48 in what Lévi-Strauss says about notions such as the Melanesian mana (a kind of force).49 The notion of mana (and we will see below that the same can be said of the goddesses of jus- tice) is according to Lévi-Strauss not simply characterized by polysemia, but by overabundance and excess, which disrupts presence.50 Notions such as mana as well as the mediators referred to above with the inertia imbued in them, are in this sense similar to that “spot” in a dream which, as Freud notes in The Interpretation of Dreams, is unplumbable: “a navel, as it were, that is, its point of contact with the unknown.”51 The latter, in turn, ties in with the insights of Freud in relation to what was termed above the “desire” for death.52 Lévi-Strauss’s mediators thus become radicalized in Derrida’s intervention in structuralism by way of the new “concepts” he invents. Derrida’s “open chain of undecidable ‘concepts,’” such as différ- ance, the supplement, and the pharmakon, does not keep in place a stable structure, but disrupts that structure in a radical way.53 This calls for a slightly different kind of analysis of myth than we find in Lévi-Strauss. Such analysis likewise requires invoking different versions of the same myth and ascertaining its underlying law. The law at stake does not how- ever involve a structure and therefore a fixed origin, but instead a stricture or a pre-origin. H E I D E G G E R A N D B E I N G From Heidegger we get the admonition that we should not assume that we understand the concepts used by the Greeks as they understood them—or that we properly understand the gods and goddesses who are said to personify certain of these concepts. According to Heidegger, with the translation of ancient Greek texts into Latin, the original or authentic d e V i l l e • I m a g e s o f J u s t i c e 333 meaning of words had been bypassed. This ties in with what happened to Being with Plato: Being was interpreted as idea.54 In other words, Plato thought Being from the perspective of and with reference to (the essence of) beings.55 Plato’s interpretation of Being as idea, according to Heideg- ger, has shaped the whole history of Western philosophy. One could say that all philosophy since Plato is “idealism”: Being is thought in the idea, the idea-like, and the ideal.56 Conceptuality, or the idea of the essential meaning of a word, also has its foundation in Plato and ties in with this understanding of Being.57 This development and the mistranslations fol- lowing upon it had a profound influence on the Middle Ages and still affect our understanding today.58 In modernity, Being has become that which the human subject posits for himself.59 Heidegger’s attempt to rethink the meaning of Being beyond this metaphysics of presence takes place at first through a reflection on the Being of Dasein, and later, on Being itself. In Being and Time, Heidegger shows that death, different from the way in which it is thought in metaphysics, does not stand apart from life or beyond life, but is connected to the life of Dasein in a funda- mental way. More specifically, death is “Dasein’s ownmost possibility.”60 This understanding of death has profound implications for conceptual- ity and also for the concept of justice. In his later enquiry into Being, Heidegger sought to go back to the thinkers known as the pre-Socratics (a reference that Heidegger takes exception to) to understand the premeta- physical and preconceptual experience of Being. He for example contends in this regard that the Latin translation of the early Greek word physis as natura (nature) is inaccurate: it does not account for the word’s original meaning. Instead, physis refers to “the unfolding that opens itself up, the coming-into-appearance in such unfolding, and holding itself and persisting in appearance—in short, the emerging-abiding sway.”61 Physis, in other words, gives expression to the experience of Being of the early Greeks. The same problems arise when we seek to understand the essence of the Greek gods and goddesses. We should be careful in assuming too quickly that at stake here are persons or that they are abstract personifications of concepts.62 In speaking of Aletheia, Heidegger for example points out in his reading of Parmenides that she is not the goddess of truth.63 If she had been such, truth would simply have been entrusted to her; truth would have stood on one side and the goddess on the other. This is the case with Artemis, the goddess of hunting and of animals. They stand L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 334 under her protection. In the case of Aletheia, truth does not simply stand under her protection; she is the truth, the goddess “truth.” Truth, or in Heidegger’s terminology (as translated), “unconcealment,” is in other words experienced as a goddess. The same can be said of the goddess Dike. For Parmenides, as Heidegger points out, Dike “is the goddess.”64 She furthermore “guards the keys that alternately close and open the doors of day and night.” Heidegger’s profound reflections need to be taken seriously and, in the analysis below of Themis and Dike, attention will specifically be paid to the reflections of Erik Wolf, who is acutely aware of the importance of Heidegger’s insights. There are nonetheless certain limitations in Heidegger’s thinking that can be overcome only through a careful reading of his texts. As Derrida has noted, Heidegger still believes that death can be appropriated by Dasein, which, in light of Freud’s thinking on the death drive, must be placed in question. Moreover, Heidegger tends to privilege the gathering and presencing of Being in his thinking rather than its disjoining or dissemination. In these respects his texts still show signs of belonging to metaphysics. Heidegger’s belief in an original and authentic meaning that can still be found in the primordial thinkers—that is, Anaximander, Parmenides, and Heraclitus—also portrays an attachment to metaphysics. Yet something in Heidegger’s texts at the same time exceeds metaphysics, for example when he speaks of death as “the possibility of the absolute impossibility of Dasein.”65 This is similarly the case in Heidegger’s discussion in On Time and Being of the giving of Being and of time, and of the play of this gift.66 This gift ultimately gives nothing and, as it precedes economy, it expects no return. In the case of Heidegger’s reflections on the Anaximander frag- ment and his argument that dike should be understood in a way that goes beyond juridical-moral determinations of justice,67 Derrida sees a similar relation between dike and adikia, with adikia corresponding with the other of Being or the perfect gift.68 From Derrida’s reading it follows that it is not only through a reflection on premetaphysical Greek thinking and non- Western cultures69 that a way beyond metaphysics can be found. All societies are after all characterized by a search for origins and presence. At the same time, these societies (and the same applies to Western metaphysics) do not constitute a totality and at some points exceed this desire for presence. The images of Justice, which as we saw are usually d e V i l l e • I m a g e s o f J u s t i c e 335 read in terms of a restricted economy, can consequently all be read in this transgressive sense, irrespective of the age in which they appear. It is to such a reading that we now turn. T H E G O D D E S S E S O F J U S T I C E Ma’at70 Ma’at (mэ’t) is a goddess in Egyptian mythology, a word in the Egyptian language, and also a central concept in Egyptian culture.71 The word is written in hieroglyphics by a rectangular and wedge-shaped plinth or base, as well as by a feather.72 Ma’at the goddess is then also usually depicted as a young woman standing on a foundation stone with a feather in her hair and with an ankh (the symbol of life) in her hand. Sometimes she has a scepter in her one hand (said to symbolize eternal rule)73 and is depicted with feathered wings (Figure 2).74 F I G U R E : Goddess Ma’at spreads her wings for protection. Mural painting, staircase, Tomb of Nefertari, Valley of the Queens, Thebes, Egypt. (Photo by S. Vannini, © DeA Picture Library / Art Resource, New York) L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 336 Although there are different understandings of what Ma’at means as a concept, she is usually associated with order, as represented by the foun- dation stone,75 and stands in this respect in a dynamic relation with chaos or disorder (Isfet). (The latter is not simply to be understood in negative terms76: as Assmann contends, Isfet, and not Ma’at, represents the natural, given structure of the world.77) Ma’at is also associated with measure, balance, harmony, justice, law, and truth. Strictly speaking, however, and this needs to be emphasized, as a concept Ma’at is untranslatable.78 Reliefs, paintings, drawings, and sculptures depict her in a variety of ways. Together with Thoth (associated with the ibis and the baboon), she for example stands in the bow of the boat that conveys Re during the day and at night through the underworld.79 In the Book of the Dead, she appears on top of and her feather on one side of the scale against which the heart of the deceased is weighed to establish whether he is to die a sec- ond death by being devoured by Ammit, or may proceed to the afterlife (Figure 3). Ma’at is often said to stand both for cosmic order and for social order, although these distinctions were not strictly drawn at the time and are therefore perhaps best avoided.80 Everyone, especially the king, must speak, do, and uphold ma’at.81 As Assmann points out, the King in this respect in a sense repeats and continues the act of creation, of which we will speak more below.82 This subduing of chaos is a continuous process as the world permanently threatens to fall back into disorder or F I G U R E : Page from the Book of the Dead of Hunefer, from Thebes, Egypt, th Dynasty (ca.  BCE). (Location: British Museum, London, UK. © The Trustees of The British Museum) d e V i l l e • I m a g e s o f J u s t i c e 337 immobility.83 Assmann in this respect speaks of Ma’at as a mediator (Mittler) or third term, in a similar sense as referred to above in our dis- cussion of Lévi-Strauss.84 According to Assmann, this role is also fulfilled by Thoth, the baboons who welcome the sun, and the king.85 In the Instruction of Amenemope (chapter 20), Ma’at is spoken of as a “great gift of God.”86 This idea of Ma’at as gift as well as the closely related offering of Ma’at is usually understood in terms of a relation of exchange and reciprocity between man and the gods.87 The doing and speaking of Ma’at are part of this relationship of exchange. In a great number of illustrations, a miniature figure of Ma’at is offered in a ritual to one of the gods by the king or some other royal figure as a sacrifice (Figure 4).88 Nonroyal donors also at times hold the figure of Ma’at, but this seems to involve a different ceremony as these depictions are usually to be found in the funerary context, analogous to the weighing of the soul, which one finds in the Book of the Dead.90 When Ma’at is presented as an offering, she is usually seated, has an ostrich feather in her hair, and sits on a basket F I G U R E : Pharaoh Seti I, th Dynasty (– BCE), holding Ma’at, Goddess of Truth. Silver, gilded, from a ceremonial bark. (Location: Louvre, Paris, France. Photo credit: Erich Lessing / Art Resource, New York) L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 338 or nb hieroglyph.91 This base is also to be found under the clepsydra, indicating the close relation between Ma’at and time.92 Sometimes in these scenes she holds a staff, usually an ankh.93 In one scene, Ma’at is depicted in the form of an ointment jar.94 As Teeter points out, all offerings made to the gods are in a sense associated with Ma’at “[a]s the symbol or icon of the cosmic order.”95 The gods themselves are consequently also said to live by and from Ma’at.96 A god is sometimes the one who presents Ma’at, most frequently Thoth. Sometimes Thoth is in the role of recipient or wit- ness.97 The presentation of the offering of Ma’at is said to reciprocate for the divine gift of Ma’at (and/or of life) and reaffirms the legitimacy of the King’s rule.98 To be noted, however, is that the inscriptions accompanying the offering of Ma’at do not in all instances speak of a reciprocal relation- ship between donor and recipient. Instead, there is at times simply an acknowledgement of the gift from the gods without any return being expected from the offering of Ma’at.99 In a similar kind of offering, involv- ing that of the name of the king to the gods, the name of the king is sometimes equated with Ma’at.100 Teeter reads this as an attempt to stress the association between the king and Ma’at to ensure legitimacy.101 A number of kings moreover incorporated the word ma’at into their official names, thereby seeking further to establish a close association between themselves and Ma’at.102 Ma’at is usually said to be the daughter of Re, the sun-god.103 How- ever, there are also a great variety of other myths in which she is asso- ciated in different ways with the gods. This can partly be explained by the fact that at different times, depending on political influence and power, certain (local) gods in Egypt became stronger than others, and the lesser gods either disappeared or were incorporated into the family structure of the (temporarily) stronger gods.104 As the earlier discussion indicates, there are additional and perhaps more important “unconscious” reasons which necessarily play a role in these variations.105 Re for example is also said to sit on the lap of Ma’at, suggesting that she is the mother of Re.106 She is explicitly referred to as the mother of Amun, with whom Re is often equated in the form of Amun-Re.107 In one of the only narratives of Egyptian mythology where Ma’at plays a central role, stemming from around 1200 BC, Ma’at (Truth) is presented as a man who gets blinded as punishment through the deception of his brother, Falsehood (grg). Truth is ultimately avenged by his son, and Falsehood also ends up being d e V i l l e • I m a g e s o f J u s t i c e 339 blinded.108 The air god Shu (life) is, like Ma’at (herself an air-goddess who gives life), depicted with a feather.109 He and his sister Tefnut, with whom Ma’at is often identified, are born from the auto-erotic actions of Atum or Re-Atum.110 In other accounts, Shu and Tefnut (also referred to as Ma’at) are the primary gods, who together with Atum form a kind of sexually charged trinity.111 In the account where they are brother and sister, Shu and Tefnut give birth to the earth god Geb and the sky goddess Nut. Geb and Nut remain in a passionate embrace until separated by Shu. This allows for creation to commence. In another account, Shu loses his wife (Tefnut) to his son, Geb.112 Ma’at is furthermore identified with the goddess Nsrt (Nesret), the flaming eye of the sun (Re).113 Ma’at is at the same time the royal serpent on the forehead of Re and of the King, and in addition is referred to as the scale of the king.114 Ma’at is also known as the wife of Thoth, the (sometimes) subversive moon god of death and writing.115 With the rise in importance of Thoth, in accordance with the Hermopolis creation myth, the Ogdoad (the eight-fold) is said to have emanated from Thoth.116 These are eight gods, in four male-female pairs in the form usually of snakes (female) and frogs (male) or in human form with snake and frog heads, who represent the primordial chaos before the birth of Re from an egg. Certain sources indicate that Ma’at is the mother of the Ogdoad,117 which ties in with her being represented as the mother of Re. She is also said to have risen with Re from the primeval waters at the time of the creation.118 These creation myths can be better understood when account is taken of the (partly) intransitive nature of the model at stake here. Assmann points out in this regard that in Egyptian myths the act of creation is not to be understood only in terms of the transitive model of a subject vis-à-vis an object. Creation also takes place intransitively: the world appears as a self-unfolding process.119 The gods in terms of this model therefore do not precede the creation and cannot be understood separate from it. A combination of these two models is to be found in Egyptian creation myths.120 In light of what was said earlier, one should resist the temptation to view the role and function of Ma’at only in circular or reciprocal terms, or, closely tied to this, viewing her simply as a “moral ideal.”121 When account is taken of what can, with reference to Assmann, be called L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 340 “exceptional texts,”122 there is clearly a dimension to her that goes beyond the circular return and instead sets this circulation in motion. Of great importance for our reading is the understanding of Ma’at as a force: “die Kraft, die ‘der unbegrenzten Bewegung Grenzen, Ziel und Bewußtsein gibt,’”123 which stands in tension with Isfet, the latter threat- ening to bring the circular flow of the creation process to a standstill.124 Ma’at in other words stands in tension with inertia or death. As we saw above, however, Ma’at herself is often associated with death. She is said to reside in and to satisfy the sacred necropolis, as well as to be the Mis- tress of the West, and is thus closely associated with the goddess Imntt, who shares with her the feather emblem. Being “joined with Ma’at” was moreover a euphemism for death. Her association with death thus went far beyond the judgment of the dead.125 She can be said to embody the relation between life and death. This also enables us to understand differently the incorporation of Ma’at into the name of the kings and the offering of the name of the king to the gods, especially where the name was equated with Ma’at. The proper name, as Derrida has shown, is subject to the law of iterability, and therefore can be said to announce death, as it will always survive the bearer of the name. The name, as Derrida puts it, “is always and a priori a dead man’s name, a name of death.”126 The incorporation of death into the name of the king can be said to give expression to this law. The offering of the name of the king (in association with Ma’at) can similarly be read as a confirmation of this law and, as we will see below, perhaps as a pure gift. In both respects the association of Ma’at with the subversive god of writing, the god of death, Thoth, is also important (Figure 5).127 Like Thoth, Ma’at has no fixed identity: she is a woman and a man, the daughter and the mother of Re, and takes on many different forms.128 This problematizes the understanding of Ma’at as a “concept” in the tradi- tional philosophical-juridical sense, as she has no essence, but instead an an-essence. When we take account of Freud’s symbolism, the representa- tion of Ma’at with a scepter and an ankh in her hands, the bird feather,129 as well as her connection with snakes and frogs (her children), baskets and jars, and blindness, clearly alludes to sexuality, but as pointed out earlier, in a more transgressive sense than we usually find in Freud.130 At stake here is the desire for death, a pleasure without end.131 Moreover, accord- ing to Freud, the sun is a sublimated father-symbol.132 Although Egyptian d e V i l l e • I m a g e s o f J u s t i c e 341 mythology can be said to be father-centered (e.g., Re is the one who gives life through his rays, that is, sperm),133 with Ma’at upholding this order, the order is as we saw, not an origin in itself, but constituted from a more primordial chaos. This relation between order and chaos is not to be understood in opposi- tional or dialectical terms, but as that which gives rise to the dialectic as well as the sending of Being.134 The chaos must itself be understood in close connection to sexuality, although the latter should not be restricted by chaos’s connotations. Perhaps the idea of Ma’at as gift best explains her strange nature. As indicated, this is not to be understood in terms of a cir- cular return, which would disqualify the gift as gift.135 Ma’at, as we saw, serves as food or nourishment for gods, humans, and all living beings: she willingly offers herself to be consumed. As Freud points out,136 eating and sexuality stand in close (unconscious) relation to each other as well as to self-destruction or making a gift of oneself.137 It is thus through a sacrifice or perfect gift of herself that the circular return of the sun becomes possible. She “contains within herself” the forces of both order and disor- der, as well as the relation between them. This is not a relation of simple opposition, and her role is also not a mediating one in the dialectical sense. F I G U R E : Blue glazed composition amulet in the form of a crouching ibis; the beak is supported by a maat-feather; pierced suspension ring behind the head, Late period. (Location: British Museum, London, UK. © The Trustees of the British Museum) L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 342 Themis Themis is known as a titan goddess, the daughter of Ouranus (sky) and of Gaia/Ge (earth), and thus stems from a time preceding the Olympic gods. Gaia is, together with Eros (the Begetter), Nyx (Night), Tartaros (the Underworld), and Erebus (the void), one of the first to be born from Chaos.138 The latter should not be understood in terms of its modern meaning of confusion or turmoil, but as “a measureless, supportless, and groundless yawning.”139 As Wolf points out, Gaia (earth) is not to be understood in (Ptolemaic or Copernican) planetary terms, but as an all- embracing, all-powerful primal force that creates gods, men, and other things in association with other primal forces. Gaia’s essence, he contends, consists in that which joins, forms a boundary, is fixed, and stands in the light, in distinction to and dividing herself from the formless, limitless, and unfathomable, as well as from the darkness that characterizes her brothers and sisters Nyx, Erebus, and Tartaros. Wolf does not mention Eros here and with good reason, because without Eros, himself formless, limitless, unfathomable, and dark,140 Gaia herself could not have come into existence,141 nor would it have been possible for her to bring forth anything else. The close association of Gaia with joining, limit, fixity, and light should thus not be taken too far. Wolf clearly realizes this. As he points out, at stake in the distinction between Gaia and her brothers and sisters is not a simple opposition, but an overlapping coming-into-being and departure. The “binding force,” itself springing from chaos, and the one who brings the difference to unity, is Eros, the begetter.142 Themis is her- self an earth-goddess and can scarcely be distinguished from her mother.143 Themis is also one of the Moirai (the Fates or Destiny), who are later said to have initiated the marriage between Zeus and Themis and to be her daughters (with Zeus as their father).144 Themis is moreover said to have “nursed” Zeus at birth in the sense that she brought him to the goat Amaltheia, who suckled him.145 When the Olympic gods become dominant, Themis becomes the second wife and also the adviser to Zeus, both in relation to what he should do and to what he should leave.146 He followed her advice without exception, so that one can in a sense equate Themis and Zeus.147 With her advice, Zeus for example decides to set in motion the Trojan War to free the earth of the overbearing presence d e V i l l e • I m a g e s o f J u s t i c e 343 of man.148 She also assists Zeus in creating the world.149 Tying in with this, she has a number of children with Zeus, including the three seasons (Hoirai): Eunomie (Good Order), Dike (usually understood as Justice), and Eirene (Peace). Wolf contends that, like Themis, these daughters have as main function the maintaining of order and consequently of ensur- ing that the cosmos stays on course.150 Wolf contests the interpretation that seeks to explain the transformation that takes place in Themis from the pre-Olympian (titanic) to the Olym- pian era as one from a personification of the laws of nature to a represen- tation of the positive legal order, or from a representation of physis (nature) to one of nomos (law). According to Wolf, these interpretations are based on assumptions that do not tally with the life-world of the Greeks at the time.151 He sees the difference as an unfolding or develop- ment in the essential nature of Themis, rather than as a transformation. The role she plays as wife and advisor and the motherly care she shows toward Zeus, Apollo, and Athene are performed in light of destiny; her own inclinations and the wishes of the other gods have no influence. She does not do this out of love for Zeus or because of an interest she has in the “old” or the “new” order. In what she does, one can instead see the necessary relation between the different generations of gods.152 Wolf thus seems to view Themis as another name for Being, also and per- haps especially, for the Being of Dasein.153 Themis retains her role as one of the Moirai in Olympus, where she declares both to gods and to human beings their destiny, a role she takes over from Gaia.154 In one of the most well-known depictions of Themis, on red ceramic dating from 430 BC, she sits on a tripod at Delphi. The childless King Aigeus of Athens approaches her for an oracle concerning the birth of a son. She has a phiale or bowl in her left hand and a laurel sprig in her right hand (Figure 6).155 Hirzel sees her role here not as that of prophetess in the sense of one who predicts the predetermined future, but as one who gives firm advice concerning how one should act.156 This role as oracle is tied to her being one of the Moirai.157 Thus the future is also predetermined by a fixed order.158 Themis, because of her role as conveyer of hidden sayings and destiny, is called Ichnaia—the hidden, the one who tracks down, who traces.159 Wolf sees the binding, joining role of Themis also being played out in her opening of the symposia of the gods and provision of the meal, as well as in her summoning of the gods to an assembly, on Zeus’s L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 344 command, and dissolving it again.160 She does the same in relation to the councils of men, assisting them in overcoming their search for self-interest and proceeding to a discussion of their mutual interests.161 It should be clear from the above discussion that much of what was said regarding Ma’at is also applicable to Themis. Their roles extend far beyond the legal order. Wolf’s acute observations on the nature of Themis and Gaia are of specific relevance here. Although he emphasizes the ordering function of Themis, he at the same time notes the chaos from which she arises. This chaos is moreover not left behind, but finds expression in the an-essence that appears from the narratives surrounding Themis, as well as the acces- sories usually associated with her. Apart from the tripod, laurel leaf, and phiale referred to above, and her association with mother-Earth, we also find depictions of Themis with a stick-like torch and a tray or offering basket (kanoun).162 There is furthermore a (somewhat uncertain) depiction of her with an oinochoe (libation jug).163 Freud again assists us in grasping the sexual nature of these symbols,164 which again need to be understood F I G U R E : Aegeus receiving the oracle of Delphi from the priestess Themis, who is sitting on the tripod. Kylix (drinking cup), from Vulci, painted by Kodros, ca.  BCE. (Location: Antikensammlung, Staatliche Museen, Berlin, Germany. Photo by Johannes Laurentius, credit: Bildarchiv Preussischer Kulturbesitz / Art Resource, New York) d e V i l l e • I m a g e s o f J u s t i c e 345 in light of his own insights in relation to the desire for absolute pleasure. In this regard, and in light of the earlier remarks on the gift, it is interesting to note that Themis, as well as Dike, is associated with hospitality.165 The per- fect gift and absolute hospitality, as we know from Derrida’s texts, are other names for this desire.166 Dike As Kissel points out, images of Dike are somewhat closer to our contem- porary idea of Justice than those of Themis.167 Dike is born in Olympia, as daughter of Zeus and Themis.168 As noted above, she is one of the Horai (Seasons), and her sisters are Eunomia (Good Order, Good Pas- ture, Lawfulness) and Eirene (Peace, Spring).169 Her daughter is Hesykhia (Tranquility). Like her mother Themis, Dike plays the role of advisor to Zeus and tells him of all man’s actions, which she observes carefully. She also seeks his advice and his protection and assistance for man. Her task in this respect, imposed by Zeus, is to preserve, guard, and maintain the law.170 Dike does not exercise any power herself: in a case where the law is disregarded, it falls upon Zeus to punish, to avenge, or to retali- ate.171 He fulfils this task unerringly, as Wolf points out. In the tragedies, however, Dike herself plays the role of the punisher of wrongs, employing a sword made for her by Aesa. In later accounts, she increasingly takes on the role of judge, and specifically of imposing criminal punishment.172 Wolf sees these two sides of Dike as related to her belonging to the Horai as well as the Moirai. As one of the Horai, she brings to light the hidden truth, similar to the goddess Aletheia. Wolf sees here a close age-old rela- tion among truth, light, and law.173 As one of the Moirai, she is a veiled, metamorphosing, destiny goddess who works in secret and brings calam- ity to people.174 She herself imposes punishment. Even here she does not wreak vengeance, but simply expiates the injustice that has been done.175 The balancing function she fulfils presumably motivates the refer- ence in the poets to the scale of Dike. Wolf sees in this respect an important development in the role ascribed to Dike.176 At first she lives amongst men, does not exercise any power herself, and simply reports to Zeus, with the latter imposing punishment. In later mythology, however, the chthonic-dark side of Dike is increas- ingly emphasized, and a gradual fusion takes place between the previously L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 346 sharply distinguished Themis and Dike. Dike in later times takes up her seat also in Hades and is described as a cosmic power in relation to the whole world. In this respect she inter alia ensures that the star constella- tions that have lost their way are brought back to the order that charac- terizes their essence. This is what she requires of every being.177 She is in this respect also closely associated with time, as she ensures that things occur in their time as it has been ordained. The Pythagorians, as Wolf points out, even attributed to Dike the function of ruling the underworld “als richtende und vergeltende Unterweltsmacht, das Schattenreich ‘chthonisher’ Mächte und der Toten.”178 Like Ma’at, she weighs the guilt and merit of the departed to determine their destiny in the afterlife.179 In this model, Themis rules in the world of the gods, and Nomos (as god) rules in the human world. Wolf appears to view this double-sidedness of Dike as a necessary rather than an accidental or negative feature. Wolf specifically describes her role of securing order as necessary, because of a certain an-essence that characterizes all beings, and even herself: Es [i.e., the failure (verfehlen) in her essence] geschieht, weil im Sein jedes Daseienden die anfängliche Möglichkeit liegt zu verfallen, seinem wahre Selbst auszuweichen, ins Unwesen abzugleiten. Ihm gegenüber setzt sich Dike nicht einfach “von selbst” durch: sie muß immer neu angerufen und dadurch in die Anwesenheit gebracht werden. Dikes lichtende Gegenwart ist stets in Gefahr, verkannt, verdunkelt, verstellt, vertrieben zu werden.180 The well-known depiction of Dike beating Adikia (a tattooed, allegedly barbarian woman) with a hammer seems to give expression to this idea (Figure 7). Adikia is usually translated as injustice,181 an interpretation that has been placed in question by Derrida’s reading of Heidegger’s The Saying of Anaximander.182 The relation between Dike and Adikia appears to be more complex than that of a simple hierarchical opposition. According to Wolf, we also see something of this complexity in Dike’s relation to Eris, another of her rivals, together with Adikia, Hybris, and Lethe.183 Lethe herself is the daughter of Eris.184 Eris again is the daughter of Nyx (Night, which must here be understood in the sense of annihilation— the Night, which as Heidegger puts it, “lets all that is present disappear into concealment”).185 The relation between these forces, however, is not d e V i l l e • I m a g e s o f J u s t i c e 347 to be viewed in oppositional terms, but as one of différance, the pre-origin of metaphysical oppositions, as also expressed by the relation between Dike and Adikia. Dike’s other, which nonetheless does not belong to her, must again be understood as the desire for absolute pleasure. In this respect it can be noted that the hammer/staff (with which Dike hits Adikia), as Freud assures us, is undoubtedly a male sexual symbol.186 Pindar’s refer- ence to the “unsullied fountain Dike,” also does not escape from sexual symbolism.187 It can moreover be noted that Dike’s daughter Hesykhia is born to her without the need for sexual intercourse with a man.188 She remains a virgin,189 which of course does not make her devoid of (absolute) pleasure. Justitia Unlike Ma’at, Themis, and Dike, the Roman goddess Justitia was not reckoned among the major gods. As with most of the other Greek gods taken over in Roman mythology, she is mentioned in very few narrative accounts. From the texts of Ovid and Virgil, one obtains the image of a goddess of Justice who has left the earth because of man’s corrupt and wicked nature and who now scarcely concerns herself any longer with human affairs. From these and other accounts, it furthermore appears that Justitia does not only show analogies with Dike (with whom she is usually equated),190 but also with Astraia/Astraea, another daughter of Themis F I G U R E : Dike beats Adikia with a hammer, Attic red figure (ca. – BCE). (© Kunsthistorisches Museum, Vienna, Austria) L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 348 and Zeus, alternatively regarded as the daughter of Astraeus and Eos.191 She is in this respect known as the constellation Virgo, the virgin of the stars, and as the nurse of the whole universe. No images of Justitia from Roman times have remained, and where mention is made of sculptures, the latter appear to show some correspondence with Dike and Nemesis and to be of Greek rather than Roman origin.192 It was Aequitas (fairness) rather than Justitia who was personified by the Romans. Kissel explains this with reference to the fact that Justitia was (mostly) equated with posi- tive law, whereas Aequitas required the balancing of all the circumstances of the case. In later times, Aequitas and Justitia were not clearly distin- guished from each other as symbols. We thus find Aequitas or Justitia depicted on coins with a cornucopia and with scales, sometimes with a scepter or a staff, sometimes without any attributes. Sometimes only the head of a woman appears, with the transcription, “Justitia.”193 In the Middle Ages, images of Justitia are characterized by a combina- tion of Christian and Greek-Roman thinking.194 In this regard, the sword of Dike and the scales of Aequitas/Justitia begin to play an important role. Justitia now becomes one of the Christian virtues entering into battle with the vices. She is personalized and sometimes depicted with acces- sories, such as a scale. In exceptional instances, Justitia is a male figure.195 In one image from the eleventh century, Justitia is depicted with a protractor and (optical) plummet, together with three other virtues. The crucified Christ is in the middle with the female figures Ecclesia and Synagoga on his right and left, respectively. Synagoga, representing Judaism, the Old Testament, and old law, is depicted blindfolded with a broken staff. Ecclesia, the New Law, the Church, wears a crown.196 In depicting the Last Judgment and the weighing of the soul of man, use is sometimes made of some of the accessories usually associated with Justitia. In this way, Christ is depicted with a sword as judge of the world, alternatively with a palm branch, a lily, or a scale.197 Albrecht Dürer, in a copperplate print from 1500, portrayed Christ with sword and scales as “sun of justice” (Figure 8).198 From around the twelfth century, the archangel Michael, standing next to Christ, and with increasing emphasis, takes over the role of weighing man’s soul, showing some similarity with our earlier discussion of Ma’at. From around the thirteenth century, there are images in which Michael also divides the deceased into good and evil and executes punishment.199 d e V i l l e • I m a g e s o f J u s t i c e 349 Michael is from then on, as a rule, depicted with a scale and often also with a sword, in addition to a lance, which becomes less emphasized. From around the sixteenth century, the archangel Michael is depicted on his own as angel of justice and judgment, with a sword and scales in asso- ciation with the last judgment.200 Justitia herself is at times depicted with the wings of an angel.201 From around the twelfth and thirteenth centuries, Justitia starts being depicted with a sword and scale (although not exclusively so) and at times separate from the other virtues.202 Kissel expresses his frustration at the impossibility of adequately explaining the reason for this development. He nevertheless attempts to do so partly with reference to the revival in Roman law from the eleventh century onward, as well as the Renaissance in general. This revival, as he points out, also was accompanied by a renewed interest in the symbols associated with the law in antiquity, including the goddesses of justice.203 The cornucopia, with its associations of superabundance and giving, was not really suited for incorporation. The scale of the Roman goddess of Justice, however, fitted well with F I G U R E : Albrecht Dürer, Die Sonne der Gerechtigkeit (Sol iustitiae), The Sun of Righteousness (ca. –). (Location: C.G. Boerner Gallery, Düsseldorf. © C.G. Boerner, Düsseldorf, New York) L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 350 the spirit of the times as it called for a careful and emotionless balancing of arguments. The scale also conformed with the emphasis placed on the synallagma, that is, the reciprocal obligations between the parties to a con- tract. The sword in the hand of Justitia, Kissel points out, was similarly well suited because of its association with judicial power, specifically in relation to criminal matters, coupled with the widespread reliance on the death penalty. Justitia with a sword was also important for another reason, that is, the attempts to establish a separate jurisdiction for the state vis-à-vis the church.204 The sword as symbol could in this respect assist in secularizing (Christian) natural law. The (secular) Justitia with sword and scales now stood over against the (spiritual) archangel Michael, himself with sword and scales. Justitia herself also takes on a double role. Justitia as religious symbol and Christian virtue was now associated with the after-life, whereas Justitia as secular symbol was associated with worldly justice.205 The blindfold of Justitia appears for the first time in 1494 in a woodcut by Albrecht Dürer, illustrating Sebastian Brant’s poem Stultifera Navis (Ship of Fools) (Figure 9). F I G U R E : Albrecht Dürer, Ship of Fools (). (Courtesy of Special Collections, University of Houston Libraries) d e V i l l e • I m a g e s o f J u s t i c e 351 It shows Justitia being blindfolded by a fool (under the heading “Quarrelling and Going to Court”).206 According to Kissel, the depiction aims at showing that such blindfolding will not have the effect of hushing up the truth or of preventing Justice from setting itself through.207 At around the same time there is an association between a blindfolded Justice (or judgment) and a more negative connotation: in an illustration by Johann of Schwarzenberg in the Bamberg Halsgerichtsordnung (Procedure for the Judgment of Capital Crimes) of 1507/1516, judges and assessors are all depicted wearing fool’s caps and blindfolds.208 The inscription indi- cates that this illustration was a criticism of the application of customary law in criminal matters.209 In a hand-painted allegorical representation of Peter Vischer from 1524, the blindfold however seems to bear a positive connotation. Justitia, naked and without any accessories, is depicted placing a blindfold over the eyes of the Emperor. It is interpreted in its Reformation context as saying that no Pope is needed, but only a just emperor.210 This was the first time that the blindfold in this context was given a positive connotation in the fine arts.211 As Kissel points out, after the Middle Ages and until about the nineteenth century, Justitia has predominantly retained the form she attained in the thirteenth century, allowing for small changes depending on the fashion of the times212 and ignoring caricatures.213 Images of her also increasingly adorned public and private spaces. Especially since the twentieth century, experimentation with different shapes of Justitia has taken place, and at times she is named Themis. J U S T I C E : T H E V I S I B L E A N D T H E I N V I S I B L E The outline of a reading that would exceed, to a certain extent, metaphys- ics has already been given above in relation to Ma’at, Themis, Dike, and Justitia. It remains to say a few words about the blindfold of Justitia (Figure 10), which, as we will see, ties in closely with what was said above regarding the other figures of justice.214 According to Freud, a clear rela- tion appears from myth, dreams, and fantasies between the eye and the male sexual organ.215 The anxiety about blindness therefore represents a fear of castration, and Oedipus’s self-blinding can be understood as a miti- gated form of the punishment of castration.216 Derrida’s understanding of L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 352 blindness seeks to go beyond the restricted economy of the Oedipus com- plex.217 In a number of texts, Derrida points to a relation among blindness, death, and desire.218 We see the same relation expressed in Memoirs of the Blind.219 Here, Derrida points out that Western philosophy, since its Greek origins, has posited a natural relation among seeing, knowing, the sun, light, the father, the eidos, and the truth.220 Derrida specifically seeks to interrogate the idea of painting as originating in present percep- tion. He contends first that a drawing (and something similar can clearly be said in relation to painting and sculpting) is blind; and second, that a drawing depicting someone who is blind is in a sense a self-portrait of the draftsman, of the draftsman as “blind.”221 This is because drawing is based not on present perception, as is often believed, but on memory, understood in a certain way.222 This follows from the fact that in drawing, the vision of the object that is being drawn must be “switched off.” Draw- ing must in a sense take place in “blindness”; the trait or strokes of draw- ing, “must proceed in the night.”223 We can also say that one draws only “on the condition of not seeing.”224 F I G U R E : Hans Rudolf Manuel, Divine Justice (). Drawing for a glass window with the coats of arms of the Law Lords of the Republic of Berne. (Wikimedia Commons, Public Domain) d e V i l l e • I m a g e s o f J u s t i c e 353 Being blind(folded) can hence be understood as going against nature in the above sense: it says that one does not want to see, “would like not to know,” that one desires not to bear witness to the truth.225 This does not simply involve the positing of an opposition between sight and blindness, between truth and lying, between sight and memory. A presentation of blindness or of being blindfolded as an object to sight indeed no longer privileges seeing or the truth in alluding to the memory that must be invoked when drawing. However, there is more to it. At stake is a struc- tural law of blindness as the condition of possibility of truth, knowledge, and vision.226 Blindness as the theme of a drawing thus represents the unrepresentable. This can be explained further as follows: someone who is blind(folded) bears witness to what can be referred to as the an-essence of memory. This an-essence is constituted by the fact that memory itself proceeds from out of a certain more radical blindness. One could also say, following Derrida, that memory itself entails “the law of dispropor- tion, dissymmetry, and expropriation” or that “in anamnesis itself, there is amnesia.”227 We have to turn to Archive Fever and “Freud and the Scene of Writing,” where Derrida deals with the “origin” of memory, and which he implicitly relies on in this context, to understand what is at stake here.228 From these texts it appears that what is here named “blindness” involves the annihilation of memory, which itself ensures the possibility of memorization, of repetition, and of reproduction.229 Blindness is thus not to be understood in its literal sense, but as a refer- ence to the ultimate form of blindness, that is, death,230 or more precisely, referring again to the above-mentioned texts, the desire for death.231 It is only through a dissimulation of this desire that works of art, as well as other acts of the imagination, such as law, become possible. Thus, Justitia blindfolded portrays something of the condition of possibility of law.232 As we saw earlier, works of art (including depictions of Justice) say some- thing about the artist, about the process of the creation of art, as well as of mankind in general. They, in other words, bear witness to the desire for death that exceeds circular exchange. A reading of the blindfold of Justitia as allowing for inner perception and impartiality or as a critique of being blindfolded in favor of sight, would on the other hand entail reinscribing blindness into an economy of exchange.233 In conclusion, it can be said that in the depictions of Justice through the ages, different ways have been found in which to give expression to the L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 354 inscription of mankind in différance. This explains in a way why these images of Justice have captured the fascination of humanity, as well as why some features have remained and others have disappeared. What becomes visible in the Egyptian Ma’at, the Greek Themis and Dike, and the Roman and modern Justitia is, as we saw, usually understood in the sense of order and balance—a relation of exchange, in other words. However, as Derrida points out, the becoming visible does so only on condition of the absolutely invisible withdrawing from sight.234 The latter, with reference to “Force of Law,” can be referred to as unconditional justice, a form of giving that expects no return, and that distinguishes itself from law and sovereignty.235 What we view as traits of Justitia, Themis, Dike, and Ma’at, whether in their conventional or psychoanalytical sense, are, as we also saw, in each appearance accompanied and remain haunted by a certain retrait (withdrawal) of chaos, darkness, death, and desire. The nature of this absolute invisibility is perhaps best expressed by Derrida, with reference to Merleau-Ponty: To be the other of the visible, absolute invisibility must neither take place elsewhere nor constitute another visible, that is, something that does not yet appear or has already disappeared—something whose spectacle of monumental ruins would call for reconstitution, regathering from memory, rememberment. This nonvisible does not describe a phenomenon that is present elsewhere, that is latent, imaginary, unconscious, hidden, or past; it is a “phenomenon” whose inappearance is of another kind.236 * Professor of Law, University of the Western Cape, South Africa. A shortened version of this essay was presented at the Derrida Today Conference, July 19–21, 2010, London. My sincere thanks to the participants for their comments on the paper as well as to Peter Goodrich for his comments on an earlier draft of this essay. . For a variety of these images, see Christian-Nils Robert, La justice: vertu, courtisane et bourreau (Genève: Georg Editeur, ); Wolfgang Pleister & Wolfgang Schild, eds., Recht und Gerechtigkeit im Spiegel der europäïschen Kunst (Köln: DuMont Buchverlag, ); Robert Jacob, Images de la jus- tice: essay sur l’iconographie judiciare du Moyen Âge à l’âge classique (Paris: Le Léopard d’Or, ); Otto Rudolf Kissel, Die Justitia: Reflexionen über ein Symbol und seine Darstellung in der bildenden Kunst, nd ed. (München: CH Beck, ); Christian-Nils Robert, La Justice dans ses Décors (XV e–XVI e siècles) (Genève: Droz, ); Michael A. Dean, Images of the Goddess of Justice, –, at http://mdean.tripod.com/justice.html (accessed July ); and Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (New Haven, CT: Yale University Press, ). d e V i l l e • I m a g e s o f J u s t i c e 355 . These are the most well-known figures of justice. However, it appears that in all cultures words exist that give expression to the “experience” associated with these goddesses; see, for example, the discussions of mana and seriti below. . Kissel, supra note , at , –, –, . . Id. at . . Id. at –. . Id. at ; Césare Ripa & Edward A. Maser, Baroque and Rococo Pictorial Imagery: The – Hertel Edition of Ripa’s ‘Iconologia’ with  Engraved Illustrations (New York: Courier Dover Publications, ), . . Ripa & Maser, supra note , at . . Kissel, supra note , at , –; Resnik & Curtis, supra note , at –. . Ripa & Maser, supra note , at . . Dennis Curtis & Judith Resnik, “Images of Justice,”  Yale Law Journal –,  n. (); Resnik & Curtis, supra note , at , , –; Judith Resnik & Dennis E. Curtis, “Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses,”  Proceedings of the American Philosophical Society –,  (June ). . The analysis undertaken here draws from the more elaborate account given of Derrida’s thinking and its relation to law in Jacques de Ville, Jacques Derrida: Law as Absolute Hospitality (New York & London: Routledge, ). . It would also be possible to provide a reading to every specific image of Justice in line with the “approach” sketched here in broad outlines. . Sigmund Freud, The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volumes I–XXIV (London: Vintage, ), V:, XV:, . . Id. at XV:, . . Id. at V: n.; XV:–. . Id. at XV:. . Id. . Id. at XV:. . Id. at XV:; see for example Freud’s interpretation of the Greek myth of Prometheus (id. at XXII:–). . “Approach” is placed in quotation marks here, because, as is well-known, deconstruction does not constitute a method, and at the same time it does not proceed in an arbitrary fashion; see Jacques Derrida, Positions (Chicago: University of Chicago Press, ), –. . See in this respect, Jacques Derrida & Elisabeth Roudinesco, For What Tomorrow . . . A Dialogue (Stanford, CA: Stanford University Press, ), –. What Derrida terms the “metaphysics of presence” involves setting up a hierarchical opposition, such as that between proper/improper, meaning/nonsense, original/imitation, normal/abnormal, speech/writing, nature/culture, reason/madness, wherein the first term serves as foundation or as a form of “presence” and the second term represents a “fall” from that presence. Metaphysics is thus characterized by binary oppositions and furthermore by the understanding of Being as presence, as elaborated by Heidegger, that is, the belief in, for example, the self-presence of the cogito, consciousness, or subjectivity, which implicitly organizes this oppositional structure; see Jacques Derrida, Of Grammatology (Baltimore & London: John Hopkins University Press, ), . . Freud, supra note , at XVIII:–; Jacques Derrida, The Post Card: From Socrates to Freud and Beyond (Chicago: University of Chicago Press, ), –. . Jacques Derrida, Speech and Phenomena and Other Essays on Husserl’s Theory of Signs (Evanston, IL: Northwestern University Press, ); Derrida, Of Grammatology, supra note . . See also Derrida, Of Grammatology, supra note , at . L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 356 . Claude Lévi-Strauss, Myth and Meaning: Five Talks for Radio by Lévi-Strauss (Toronto: University of Toronto Press, ), . . Claude Lévi-Strauss, Structural Anthropology (London: Allen Lane, The Penguin Press, ), . . Id. at –. Claude Lévi-Strauss, Totemism (London: Merlin Press, ), , describes “myth” as follows: “The notion of ‘myth’ is a category of thought which we use arbitrarily in order to bring together under one word attempts to explain natural phenomena, products of oral literature, philosophical speculations, and cases where linguistic processes emerged to full consciousness.” . Claude Lévi-Strauss, The Raw and the Cooked (Chicago: University of Chicago Press, ), . . Lévi-Strauss, supra note , at : “There is no single ‘true’ version of which all the others are but copies or distortions. Every version belongs to the myth.” . Ferdinand de Saussure, Course in General Linguistics (Chicago: Open Court, ), . . Lévi-Strauss, supra note , at . . Robert Alan Segal, Structuralism in Myth: Lévi-Strauss, Barthes, Dumézil, and Propp (London: Taylor & Francis.Segal, ), . . Lévi-Strauss, supra note , at . . Id. at . We will see below that at least one commentator refers to Ma’at as a mediator. . Claude Lévi-Strauss, The Origin of Table Manners, vol.  of Introduction to a Science of Mythology (London: Jonathan Cape Ltd, ), –. . Id. at . . Id. at –. . Id. at –. We will see below that the goddesses of justice, Ma’at, Themis, and Dike, are all explicitly associated with this role of ensuring regularity or order. . Id. at . According to Lévi-Strauss this is still the case today, although no longer in such a determined and calculated fashion. . Jacques Derrida, Writing and Difference (Chicago: University of Chicago Press, ), . . Id. at . . Id. at , . The notions of “play,” substitution/supplement, and writing in Derrida’s texts all bear a quasi-psychoanalytical connotation. . Id. at . . Id. at . . See also Claude Lévi-Strauss, “A Jivaro version of Totem and Taboo,” in A Reader in the Anthropology of Religion, ed. Michael Lambek (Oxford: Wiley-Blackwell, ), –, , where he points out that the original form of myth “is and remains forever elusive. However far back we may go, a myth is known only as something that has been heard and repeated.” . Derrida, supra note , at –. . Id. at . . In Glas, Derrida refers to “play” in this sense as a “pure essenceless by-play, a play that plays limitlessly”; Jacques Derrida, Glas (Lincoln: University of Nebraska Press, ), a. See also Jacques Derrida, The Ear of the Other (Lincoln: University of Nebraska Press, ), –. . Claude Lévi-Strauss, Introduction to the Work of Marcel Mauss (London: Routledge, ), –. . Derrida, supra note , at ; see also at –, where the passage in question is quoted (at ) and discussed; and see further Émile Durkheim, The Elementary Forms of Religious Life (Oxford: Oxford University Press, ), –, –, on the notion of mana. A word that plays a similar role in the African context is seriti (force), which is in turn linked to the well-known notion of ubuntu; see Augustine Shutte, Philosophy for Africa (Rondebosch, ZA: University of Cape Town Press, ) –; Cornel du Toit, “Implications of a technoscientific culture on personhood in Africa and in the West,”  HTS Theological Studies –, – (); Maome Bethuel d e V i l l e • I m a g e s o f J u s t i c e 357 Rathete, The Reality and Relevance of Seriti in the Past and Present: Its Essence and Manifestation in an African Religion Perspective with Special Reference to the Northern Sotho (University of South Africa, PhD thesis, ). . Freud, supra note , at IV: n.. . Jacques Derrida, Resistances in Psychoanalysis (Stanford, CA: Stanford University Press, ), –. . See in this respect the explanation offered in Derrida, supra note , at –. . Martin Heidegger, Introduction to Metaphysics (New Haven & London: Yale University Press, ), . . Martin Heidegger, Nietzsche, vols. III, IV (New York: HarperCollins, ), IV:–. . Id. at IV:. . Id. at III:–; Heidegger, supra note , at –. . Heidegger, supra note , at . Viewing justice as an ideal would be metaphysical thinking par excellence. . Heidegger, supra note , at IV:. . Martin Heidegger, Being and Time (New York: HarperCollins, ), . . Heidegger, supra note , at . . Martin Heidegger, Early Greek Thinking: The Dawn of Western Philosophy (New York: HarperCollins, ), . . Martin Heidegger, Parmenides (Bloomington & Indianapolis: Indiana University Press, ), . . Heidegger, supra note , at . . Heidegger, supra note , at . For an analysis of this passage and similar ones in Heidegger, see Jacques Derrida, Aporias (Stanford, CA: Stanford University Press, ), –. . Martin Heidegger, On Time and Being (Chicago: University of Chicago Press, ), –; Jacques Derrida, Given Time: I. Counterfeit Money (Chicago: University of Chicago Press, ), –; Derrida, Glas, supra note , at a–a. . Heidegger, supra note , at , seeks to understand dike as “the ordering and enjoining Order” and adikia as disjunction, Disorder. . Jacques Derrida, Specters of Marx: The State of Debt, the Work of Mourning and the New Interna- tional (New York: Routledge, ), –. . See Martin Heidegger, On the Way to Language (New York: HarperCollins, ), –. . I would like to express my gratitude to Faith Zulu whose research on Ma’at assisted me in the writing of this section. . Jan Assmann, Ma’at: Gerechtigkeit und Unsterblichkeit im Alten Ägypten (München: CH Beck, ), . . Id. at . . See Jacobus van Dyk, “The Armana Period and the Later New Kingdom (c. – BC),” The Oxford History of Ancient Egypt, ed. Ian Shaw (Oxford: Oxford University Press, ), –, . . Freud, supra note , at XXIII:, sees in the animal shapes of many Egyptian gods a relation to totemism. In a letter to Fliess (July , ) Freud already expressed the view that the gods portrayed in myth were the successors to totem animals; see Sigmund Freud, The Complete Letters of Sigmund Freud to Wilhelm Fliess – (Cambridge, MA: Harvard University Press, ). . Lucie Lamy, New Light on Ancient Knowledge: Egyptian Mysteries (London: Thames and Hudson, ), –, equates Ma’at with (cosmic) consciousness. . Assmann, supra note , at ; see however at –, where Isfet does take on negative connotations. . Id. at . . Id. at . L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 358 . Id. at –. . Id. at –, –; Rodney Peter van Wyk, Ma’at in Egipte—en Veranderinge in die Armana Periode. (MPhil thesis, University of the Western Cape, ), –; Vincent Arieh Tobin, “Ma’at and ΔIKH: Some Comparative Considerations of Egyptian and Greek Thought,”  Journal of the American Research Center in Egypt –,  (). Assmann, supra note , at , also points out that in Egypt the cosmos was not understood in spatial terms, but as a pro- cess, and in this sense Ma’at amounts to a regulative energy that directs human life as well as cosmic forces. . Assmann, supra note , at , –. . Id. at . . Id. at , –. . Id. at . A specific reference is to be found here to the work of Mauss and Durkheim in this respect. . Id. at –. . The Instruction of Amenemope, http://www.touregypt.net/instructionofamenemope.htm (accessed July ); see also Assmann, supra note , at –, , ; Miriam Lichtheim, Maat in Egyptian Autobiographies and Related Studies (Freiburg Schweiz: Universitätsverlag, ), . . Maulana Karenga, Maat: The Moral Ideal in Ancient Egypt: A Study in Classical African Ethics (Los Angeles: University of Sankore Press, ), –; Assmann, supra note , at –; Emily Teeter, The Presentation of Maat: Ritual and Legitimacy in Ancient Egypt (Chicago: Uni- versity of Chicago Press, ), . . See generally, Teeter, supra note . . The description provided by Art Resource reads “offering to Ma’at,” which should presumably be “offering of Ma’at,” as it appears on the Louvre website. . Teeter, supra note , at , , . . Id. at . . Id. at . . Id. at . . Id. at , . . Id. at . . Assmann, supra note , at –; Teeter, supra note , at ; and Lichtheim, supra note , at . . Teeter, supra note , at –, –. . Id. at –. . Id. at . . Id. at –. . Id. at –. . Id. at , , . . Assmann, supra note , at . . Van Wyk, supra note , at –. . See further Freud, Totem and Taboo, supra note , at XIII:–; and Moses and Monotheism, supra note , at XXIII:–. . Assmann, supra note , at  n.. . Id. at  n.. . Robert A. Armour, Gods and Myths of Ancient Egypt (Cairo: The American University in Cairo Press, ), –; and Lichtheim, supra note , at . . Assmann, supra note , at –. . Geraldine Pinch, Egyptian Mythology: A Guide to the Gods, Goddesses, and Traditions of Ancient Egypt (Oxford: Oxford University Press, ), –; and Lamy, supra note , at . d e V i l l e • I m a g e s o f J u s t i c e 359 . Assmann, supra note , at –. . Pinch, supra note , at . . Assmann, supra note , at –. . Id. at –. Ma’at is at least once depicted (in sculpture) as wearing the Royal uraeus (cobra); see Teeter, supra note , at . . For an analysis of Thoth, see Jacques Derrida, Dissemination (London: Continuum, ), –. . Lamy, supra note , at –. . Patricia Turner & Charles Russell Coulter, Dictionary of Ancient Deities (Oxford: Oxford Uni- versity Press, ), ; Simson Najovits, Egypt, The Trunk of the Tree, vol. I, The Contexts (New York: Algora Publishing, ), . . Armour, supra note , at . . Assmann, supra note , at ; also Lamy, supra note , at –. . Assmann, supra note , at , . . This happens for example with Karenga, supra note . . Assmann, supra note , at . . Id. at , also at . My translation: “The force ‘which gives to the unlimited movement limits, aim, and consciousness.’” . Id. at . . Teeter, supra note , at –. . Derrida, The Ear of the Other, supra note , at . . See in this respect again Derrida, supra note , at –. . Freud, supra note , at XXIII:, describes this characteristic depiction of the Egyptian gods in apt terms: “The hymns in honour of these gods say almost the same things about all of them, and identify them with one another unhesitatingly, in a manner hopelessly confusing to us. The names of gods are combined with one another, so that one of them may almost be reduced to being an epithet of the other.” . The ostrich feather is very interesting symbolically because a bird in dreams usually represents the phallus, its erection being similar to a bird’s flight, suspending the laws of gravity (Freud, supra note , at V:, XXII:). The long (phallic) neck of the ostrich could perhaps be said to make up symbolically for its inability to fly. The equation Freud (id. at XV:) draws between woods and bushes with pubic hair could perhaps also be applied to an ostrich’s feathers. In general, birds in dreams represent sexual intercourse (id. at V:). From Ma’at’s association with Imntt one could furthermore contend that the feather represents death. Levi-Strauss, supra note , at –, similarly draws a relation between feathers (birds belonging to both the sky and the earth (at ) and pubic hair as mediators (quillwork and scalps are also mentioned here). . See Freud, supra note , at XII:–, XV:–. . Derrida, supra note , at . Two observations of Freud, supra note , at XXIII:–n and X:, need to be juxtaposed here: “No other people of antiquity did so much [as the Egyptians] to deny death or took such pains to make existence in the next world possible.” And: “According to psycho-analytic theory, I told him [the Rat Man] every fear corresponded to a former wish which was now repressed.” . Freud, supra note , at XII:, –; XV:. . See in this regard Freud, id. at XII:,  (Schreber case). . Derrida, Glas, supra note , at a. . Derrida, Given Time, supra note , at –. . Freud, supra note , at XVII:–. . See Derrida, Glas, supra note , at b, b, b. . Erik Wolf, Griechisches Rechtsdenken: Vorsokratiker und frühe Dichter (Frankfurt am Main: Vittorio Klostermann, ), . L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 360 . Heidegger, supra note , at III:; C. Kerényi, The Gods of the Greeks (London: Thames and Hudson, ), ; Wolf, supra note , at . . Hugh G. Evelyn-White, The Theogony of Hesiod, , at http://www.sacred-texts.com/cla/ hesiod/theogony.htm (accessed July ), Part II, para. –: “Eros (Love), fairest among the deathless gods, who unnerves the limbs and overcomes the mind and wise counsels of all gods and all men within them.” . See Aristophanes, The Birds,  BC, at http://classics.mit.edu/Aristophanes/birds.html (accessed July ): “At the beginning there was only Chaos, Night, dark Erebus, and deep Tartarus. Earth, the air and heaven had no existence. Firstly, black-winged Night laid a germless egg in the bosom of the infinite deeps of Erebus, and from this, after the revolution of long ages, sprang the graceful Eros with his glittering golden wings, swift as the whirlwinds of the tempest. He mated in deep Tartarus with dark Chaos, winged like himself, and thus hatched forth our race, which was the first to see the light. That of the Immortals did not exist until Eros had brought together all the ingredients of the world, and from their marriage Heaven, Ocean, Earth and the imperishable race of blessed gods sprang into being.” . Wolf, supra note , at . . Id. at , –; Jane Ellen Harrison, Themis: A Study of the Social Origins of Greek Religion, nd ed. (Cambridge: Cambridge University Press, ), , ; Harm Vos, “Themis,” in Homerisches Recht & Themis, Rudolf Köstler and Harm Vos, – (New York: Arno Press, ), . Prometheus refers in this respect to “my mother Themis and Gaia, one form called by many names” (Aeschylus, Prometheus Bound, ca.  BC, http://classics.mit.edu/Aeschylus/prometheus.html (accessed July ). . Wolf, supra note , at , refers to them as the younger Moirai and explains that she could only give birth to them because she herself was a Moirai. . Rudolf Hirzel, Themis, Dike und Verwandtes: Ein Beitrag zur Geschichte der Rechtsidee bei den Griechen (Hildesheim: Georg OlmsVerlagsbuchhandlung, ), ; Wolf, supra note , at . . Hirzel, supra note , at –. . Id. at –; Walter Jones, The Law and Legal Theory of the Greeks: An Introduction (Oxford: Clarendon Press, ), . . Hirzel, supra note , at ; Vos, supra note , at –. . Vos, supra note , at . . Wolf, supra note , at . . Id. at . . Id. at –. . Id. at –. . Vos, supra note , at –. . The laurel leaf (sacred to Apollo) was burnt as incense on the altar of the oracle at Delphi, more specifically by the Pythia (the medium) before ascending the tripod. The tripod from which the Pythia pronounced the oracle stood over a chasm in the earth from which intoxicating smoke was from time to time emitted. The smoke is said to have caused delirium; see William Smith, A Dictio- nary of Greek and Roman Antiquities, nd ed. (New York: Little, Brown and Co, ), –. . Hirzel, supra note , at –. . Wolf, supra note , at . . Kissel, supra note , at . . Wolf, supra note , at . . See also Hirzel, supra note , at , –; and Vos, supra note , at –. . Hirzel, supra note , at . . See Aaron J. Atsma, Theoi Greek Mythology: Exploring Mythology in Classical Literature and Art, –, at http://www.theoi.com/Gallery/K..html (accessed July ), where Themis is depicted with the Thracian goddess, Bendis. d e V i l l e • I m a g e s o f J u s t i c e 361 . See Amy C. Smith, Athenian Political Art from the Fifth and Fourth Centuries BCE: Images of Political Personifications, , at http://www.stoa.org/projects/demos/article_personifications?page=&- greekEncoding= (accessed July ). . See Freud, supra note , at XV: (the sacred number ),  (watering cans),  and  (mother Earth, landscapes),  (vessels and receptacles); at V: (hollow objects and vessels). . Jones, supra note , at , , ; Hirzel, supra note , at ; Vos, supra note , at . . See for example Derrida, Given Time, supra note ; and Jacques Derrida & Anne Dufourmantelle, Of Hospitality (Stanford, CA: Stanford University Press, ). . Kissel, supra note , at . . Wolf, supra note , at . . Tykhe (chance) is sometimes said to be Dike’s sister (Wolf, id. at ), and one of the Moirai (fates). She is a daughter of Tethys and Okeanos, alternately of Zeus. In Roman mythology she is known as Fortuna. Wolf describes Tykhe as portraying something of the Titanic nature of her mother Themis (Wolf’s source in this respect is not clear), more specifically in her circum- vention of strict boundaries, her taking of detours, and the abysmal chaos that is part of her na- ture and that also characterizes Dasein. Wolf’s remarks in this regard can be favorably compared with those of Jacques Derrida, Psyche: Inventions of the Other, vol. I (Stanford, CA: Stanford Uni- versity Press, ), –. . Wolf, supra note , at . . Kissel, supra note , at ; Wolf, id. at . The position is the same in relation to Themis and Nemesis (retribution), with only the latter playing the role of avenger. Nemesis also had the more general function of ensuring the proper measure and in this respect was sometimes depicted with a cubit. It is thus not only Justice who has been associated with the scale and similar kinds of instruments. As Kissel, id. at , points out, Kairos, the god of opportunity, was also some- times depicted with a scale (and a cutting blade). . Wolf, supra note , at ; Kissel, supra note , at . . Wolf, id. at . . Id. at . . Id. at , . . Id. at –. . Id. at –. This role of securing order at first did not have moral or legal connotations (Tobin, supra note , at –, ; Wolf, supra note , at ). Dike, like themis, is thus a word that expresses Being; see also Heidegger, supra note , at . . Wolf, supra note , at . My translation: “as judging and avenging netherworld-power, the shadowy realm of chthonic powers and the dead.” . Id. at . . Id. at . My translation: “This happens because in the Being of every Dasein the initial possi- bility lies to decay/deteriorate, to depart from its true self, to slide into a terrible state of affairs (literally: an-essence). Dike does not set herself through automatically against such decay: she must always be called upon anew and in this way be brought to presence. The clearing presence of Dike remains threatened, to become unrecognized, obscured, misplaced, and expelled.” See also Wolf, id. at . Martin Heidegger, Parmenides (Bloomington & Indianapolis: Indiana Uni- versity Press, ), , says something remarkably similar when he talks about lethe (oblivion): “Lethe, oblivion, is a concealment that withdraws what is essential and alienates man from himself, i.e., from the possibility of dwelling within his own essence.” . Kissel, supra note , at . . Derrida, supra note , at –. . Wolf, supra note , at –. . Heidegger, supra note , at . L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 362 . Id. at . . Freud, supra note , at XV:. . Id. at XV:–. . Wolf, supra note , at . . Id. at . . The Romans equated Camenta (the goddess of childbirth and prophecy) as well as Anna Perenna (the goddess of the turning of the year) with Themis; see Vos, supra note , at  n.; and Hirzel, supra note , at . . See also Kissel, supra note , at . . Id. at . . Id. at . . Id. at . . Id. at . . Id. at –. . Id. at –, . . Id. at –. . Id. at . . Id. at –. Sometimes the angel with these accessories is not specifically referred to as Michael. . Id. at . . Id. at –. . Id. at . . Id. at –. . Id. at , . . Id. at . . Id. at . . Id. at . . Id. at . . Id. at . . Id. at . . Kissel, id. at , points out that in Germany, Justitia with blindfold dominated especially in the eighteenth century, whereafter she was again depicted with eyes open. . Id. at –. . Interesting readings relating to the blindfold have recently been given by Martin Jay, “Must Justice be Blind? The Challenge of Images to the Law,” Law and the Image: The Authority of Art and the Aesthetics of Law, eds. Costas Douzinas & Lynda Nead (Chicago: The University of Chicago Press, ), –, and Costas Douzinas, “The Legality of the Image,”  The Mod- ern Law Review – (). Jay’s reading relies on the insights of feminism, and Douzinas provides us with a Lacanian-Levinasian reading. Although admirable, these readings in my view remain contained within metaphysics. . Freud, supra note , at XVII:. In relation to those accessories that have not as yet been specifically discussed in relation to psychoanalysis, it can be mentioned that, according to Freud, and as can be expected, long sharp weapons stand for the male sexual organ (at V:). This is also the case with the rods to be found in the fasces (at V:). Any threatening with weapons, according to Freud (at XV:), points to sexual intercourse. Freud says nothing specifically about a scale, but the fact that it is predominantly depicted in tripartite fashion points to a similar reading (see Freud, id. at XV:–). Wild animals (and here we can think of the ostrich and the lion) “mean people in an excited sensual state, and further, evil instincts or passions” (at XV:). This latter insight informs Derrida’s analysis in The Beast & The Sovereign (). . Freud, id. at XVII:. d e V i l l e • I m a g e s o f J u s t i c e 363 . It needs to be noted that the gouging out of Oedipus’s eyes is not a feature of the Homeric account; see Jacques Derrida, Memoirs of the Blind: The Self-Portrait and Other Ruins (Chicago: University of Chicago Press, ), . . Derrida, Of Grammatology, supra note , at –; Derrida & Dufourmantelle, supra note , at –. . For helpful commentaries, which however move in somewhat different directions from the read- ing proposed here, see Michael Newman, “Derrida and the Scene of Drawing,”  Research in Phenomenology – (); and John D. Caputo, The Prayers and Tears of Jacques Derrida: Religion without Religion (Bloomington: Indiana University Press, ), –. . Derrida, supra note , at –. See further Derrida, supra note , at –; and see Resnik & Curtis, supra note , at –, who point to the close relation that traditionally exists between sight, the sun, truth, and justice. See further Jacques Derrida, Spurs: Nietzsche’s Styles (Chicago: University of Chicago Press, ), –, for a problematization of the view of the relation between the truth and woman (viewed in a traditional way) by way of a reading of Nietzsche. . Derrida, supra note , at . . Id. at . Perception itself is also from the outset based on recollection (at ). . Id. at . . Id. at . . Id. at . This seems to imply that even though no causal relation can be shown between the blindfolded Synagogue and Justitia’s blindfold (see Kissel, supra note , at ), there is in fact a “deeper” relation; see Derrida, supra note , at –. . Derrida, supra note , at . . Id. at  and . . See Jacques Derrida, Archive Fever: A Freudian Impression (Chicago: University of Chicago Press, ), and Derrida, supra note , at –. . Derrida, supra note , at ; and Derrida, supra note , at . . Derrida, supra note , at . See also Derrida, supra note , at : “the blind are beings of the fall, the manifestation always of that which threatens erection or the upright position.” Derrida’s analysis here of drawing corresponds closely with his analysis elsewhere of writing and communication in, for example, “Plato’s Pharmacy” (Derrida, supra note , at –), Of Grammatology (Derrida, supra note ), and Limited Inc (Jacques Derrida, Limited Inc (Evanston, IL: Northwestern University Press, )). This also appears from Derrida, supra note , at : “Language is spoken, it speaks to itself, which is to say, from/of blindness. It always speaks to us from/of the blindness that constitutes it.” See also Derrida’s essay “A Number of Yes” (Jacques Derrida, Psyche: Inventions of the Other, vol. II (Stanford, CA: Stanford University Press, ), –, about the limitless “yes” as the arche-word of language. . See Derrida, supra note , at . . This is of course the same when she is not blindfolded, and as indicated above, her figure itself and all her other “accessories” need to be read in a similar way as proposed here. . See also Derrida, supra note , at . . Id. at –. . Jacques Derrida, Acts of Religion (New York: Routledge, ), –. . Derrida, supra note , at . L a w & L i t e r a t u r e • Vo l u m e 2 3 , N u m b e r 3 364 << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles false /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Warning /CompatibilityLevel 1.4 /CompressObjects /Tags /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.0000 /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams false /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo false /PreserveFlatness false /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Remove /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages false /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages false /ColorImageDownsampleType /Average /ColorImageResolution 300 /ColorImageDepth 8 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /FlateEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages false /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages false /GrayImageDownsampleType /Average /GrayImageResolution 300 /GrayImageDepth 8 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /FlateEncode /AutoFilterGrayImages false /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages false /MonoImageMinResolution 1200 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages false /MonoImageDownsampleType /Average /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputConditionIdentifier (CGATS TR 001) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /CreateJDFFile false /Description << /ENU ([Based on 'AP_Press'] Use these settings to create PDF documents with higher image resolution for high quality pre-press printing. The PDF documents can be opened with Acrobat and Reader 5.0 and later. These settings require font embedding.) >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AllowImageBreaks true /AllowTableBreaks true /ExpandPage false /HonorBaseURL true /HonorRolloverEffect false /IgnoreHTMLPageBreaks false /IncludeHeaderFooter false /MarginOffset [ 0 0 0 0 ] /MetadataAuthor () /MetadataKeywords () /MetadataSubject () /MetadataTitle () /MetricPageSize [ 0 0 ] /MetricUnit /inch /MobileCompatible 0 /Namespace [ (Adobe) (GoLive) (8.0) ] /OpenZoomToHTMLFontSize false /PageOrientation /Portrait /RemoveBackground false /ShrinkContent true /TreatColorsAs /MainMonitorColors /UseEmbeddedProfiles false /UseHTMLTitleAsMetadata true >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /BleedOffset [ 9 9 9 9 ] /ConvertColors /NoConversion /DestinationProfileName (U.S. Web Coated \(SWOP\) v2) /DestinationProfileSelector /WorkingCMYK /Downsample16BitImages true /FlattenerPreset << /ClipComplexRegions true /ConvertStrokesToOutlines false /ConvertTextToOutlines false /GradientResolution 300 /LineArtTextResolution 1200 /PresetName ([High Resolution]) /PresetSelector /HighResolution /RasterVectorBalance 1 >> /FormElements true /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles true /MarksOffset 6 /MarksWeight 0.250000 /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /UseName /PageMarksFile /RomanDefault /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /LeaveUntagged /UseDocumentBleed false >> ] /SyntheticBoldness 1.000000 >> setdistillerparams << /HWResolution [2400 2400] /PageSize [630.000 810.000] >> setpagedevice 
work_tys7xtp3qfaf7mhqff6wmdltwe	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221738932 Params is empty 221738932 exception Params is empty 2021/04/06-03:20:37 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221738932 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:37 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_u64feocxr5bbnebdma2x5vh3lm	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_u6aqjjzbwrclrnkzpo4gao6254	----	AMS Skip to main content Menu AMS Open Search Close Search Search the site: Main navigation (extended config) Academics+ Program Learning Outcomes Major Minor Current Course Offerings Academic Year Course Offering AMS Program+ Why be an AMS Major? Alumni People+ Faculty Lecturers Emeritus Faculty Staff Student+ Advising Emphasis Plan Senior Capstone Internship Prizes Transfer Students Letters of Recommendation Resources for Students AMS AT 50+ American Studies at UC Davis: Breaking Down Walls for 50 Years CAREN KAPLAN RETIREMENT SYMPOSIUM         Welcome! Founded during the 1968-69 school year, American Studies Department at UC Davis stands apart as the only department of its kind in the University of California system. In its 50 + years on campus it has been dedicated to creating an interdisciplinary space for students to connect their personal curiosities and concerns to broader public issues, histories, and materials.  What is American Studies? When you hear the phrase "American Studies," you might think of classrooms decked out in red, white, and blue; classes that feel just like your 10th grade U.S. history class; and images of Uncle Sam and Captain America. If you walk through our wing on the second floor of Hart Hall, you'll see that's not the case. The American Studies Department at Davis (AMS at UCD) looks at American culture as a compilation of things that can be questioned and analyzed. And it uses many lenses to understand the complicated, messy, and diverse lives people live in both in the United States and in an interconnected world. As an interdisciplinary department, AMS at UCD pulls from several disciplines (history, literature, environmental science, food science, sociology, and more) to explore phenomena in and related to U.S. culture. The faculty study food, prisons, the environment, artificial sweeteners, music, militarized culture, and much more. Each of them asks questions and teaches classes to help all of us make sense of the world we live in. So, in American Studies classes at Davis, you'll find folks asking questions about drones, thinking about the boom of diversity in comics, studying the California rodeo, analyzing the role of gossip in specific communities, wondering what needs to happen to save our planet, how to tie social science justice and academic research, and more.  Why study American Studies at Davis?  AMS at UCD has spent the last 50+ years grappling with questions of American-ness. The department isn't afraid to shy away from the personal and the political. You'll find that many of our faculty study topics that are near and dear to their hearts. AMS at UCD is a place for rigorous study and "making sense" of what's important to you. It's a place to ask big (and sometimes hard and scary) questions to better understand the world. American Studies Association Statement on BLM & Rebellion of 2020 Asian American Studies Association Statement on Atlanta Why be an American Studies Major? Our alumni are now lawyers, teachers, social workers, urban planners, marketing professionals, software engineers, filmmakers, professors, professional writers (and comedians) and non-profit staff and leaders. If this appeals to you, you might fit well in our community. If you have questions or curiosities about the diverse cultures that make up the U.S., AMS at UCD might be for you. If you want individualized attention, a major that lets you explore multiple disciplines, and the chance to study topics that are important to you, take a class with us or reach out to our major advisor and our undergraduate faculty advisor.  Contact Us Visit our advising office at 1203 Hart Hall (First floor). Closed due to COVID-19. Email general inquiries to ams-advising@ucdavis.edu. To contact individual faculty, see faculty listing. Call the American Studies office at 530-752-6429. Social Media Links Main Office 1203 Hart Hall (First floor) University of California, Davis  One Shields Avenue  Davis, CA 95616  Contact Us Visit our advising office at 1203 Hart Hall (First floor).  Email general inquiries to ams-advising@ucdavis.edu. To contact individual faculty, see faculty listing. Call the American Studies office at 530-752-6429. Join our Facebook group for news and announcements. Admin Links Login Webmaster UC Davis College of Letters and Science | Social Sciences and Humanities Building | 530-752-0394 University of California, Davis, One Shields Avenue, Davis, CA 95616 | 530-752-1011 Questions or comments? Privacy & Accessibility Principles of Community University of California Sitemap Last update: March 22, 2021 Copyright © The Regents of the University of California, Davis campus. All rights reserved. This site is officially grown in SiteFarm. 
work_u7drj4c2n5calg4gct5llze5wa	----	                Δόξα / Докса.– 2016. – Вип. 2 (26).            Δόξα / Докса.– 2016. – Вип. 2 (26).             185 184 Псевдо-Платон ПРО  СПРАВЕДЛИВЕ (вступне слово, переклад з давньогрецької та коментарі Іллі Бєя) Перший  переклад  українською    мовою    безпосередньо  з  грецької короткого сократичного діалогу невідомого автора «Про справедливе». Тут Сократ зі своїм співбесідником намагаються відшукати відповідь на  питання,  що  є  справедливим.  Вміння  визначати  справедливе порівнюється з іншими вміннями. Ключові  слова:  справедливе,  Псевдо-Платон,  Сократ,  сократичний, діалог. Псевдо-платонівський  сократичний  діалог  невідомого  автора  Про справедливе здебільшого складається з аргументів, запозичених з діалогів справжнього  Платона.  Єдина  оригінальна  ідея  твору  (373c–e):  Сократ заявляє, що судді розсуджують  щодо справедливого та несправедливого, говорячи, тобто використовуючи слово, так само, як зважувачі користуються вагою, а вимірювачі – мірою. Устами Сократа автор задає питання, котре залишає без відповіді: «Якщо мова, суддівське вміння та суддя розрізняють справедливе та несправедливе, що ж тоді справедливе та несправедливе?». В платонівських діалогах питання справедливості піднімається вельми часто.  Найбільший  твір  Платона  навіть  називається  Держава,  або  Про справедливість, він весь присвячений пошуку відповіді на питання, чим справедливість власне є. Цією темою займались й такі сучасники та учні Платона як Спевсіпп, Ксенократ Халкідонський та Гераклід Понтійський, втім, їхні твори до нас не дійшли. Під час роботи над українським перекладом були використані: – англійський переклад: The Works of Plato. A new and literal translation / By George Burges, M. A., Trinity, Cambridge.– London: Henry G. Bohn, York Street, Covent Garden, 1854.  - чеський переклад: Platón. Epinomis. Minós. Kleitofón. Pseudoplatonika. Epigramy / Preklad Frantiska Novotného.– Praha: OIKOYMANH, 1997. – російський переклад: Платон. Диалоги / Пер. с древнегреч.; Сост., ред. и авт. вступит. статьи А. Ф. Лосев; авт. примеч. А. А. Тахо-Годи.– М.: Мысль, 1986. Грецький текст наводиться за виданням: Plato. Platonis Oper / ed. John Burnet.– Vol. 5, Oxford. 1900. Пагінація за стефанівським виданням. <372a, bis> – Чи ти можеш сказати нам, що таке справедливе? Чи ти не вважаєш це вартим того, щоб поговорити про це? Розділ 4 ПЕРЕКЛАДИ                 Δόξα / Докса.– 2016. – Вип. 2 (26).            Δόξα / Докса.– 2016. – Вип. 2 (26).             187 186  - Так.  - А щодо <373c> справедливого та несправедливого? Відповідай!  - Не  можу.  - Скажи, [що про них] говорять.  - Так.  - Отже судді, коли розсуджують між нами, судять про справедливе та несправедливе?  - Так.  - А вимірювачі про мале та велике, вимірюючи, оскільки міра є  те, чим [такі речі] розрізняють.  - Авжеж.  - Отже, і зважувачі про важке та легке, зважуючи, оскільки вага є те, чим [такі речі] розрізняють.  - Так, є.  - І обчислювачі  про велике та  мале, обчислюючи, оскільки  число є тим, чим [такі речі] розрізняють.  - Авжеж.  - Отже,  судді,  говорячи3 , як  ми  щойно визнали, розсуджують про справедливе  та  несправедливе,  оскільки  мова  є  те,  чим  [такі  речі] розрізняють.  - Добре говориш, Сократе.  - Тобто це – правда. І саме мова, як здається, є те, чим розрізняються справедливе та несправедливе.  - Виявляється, що так.  - Що ж таке справедливе та несправедливе? Нехай нас хтось спитає, якщо міра, вміння вимірювати та вимірювач розрізняють більше та менше, то що ж таке більше та менше. Ми відповімо, що більше перевищує, а менше є перевищене. Якщо тоді вага, вміння зважувати та зважувач перевіряють важке та легке, що ж таке важке та легке? Ми відповімо, що вниз на терезах схиляє важке, а вгору [підіймається] легке. Нехай нас хтось спитає, якщо мова, суддівське вміння та суддя розрізняють справедливе та несправедливе, що ж тоді справедливе та несправедливе? Чи зможемо ми відповісти? Чи ще цього не можемо сказати?  - Не  можемо.  - Як  ти  вважаєш,  самовільно  чи  несамовільно  мають  люди  це несправедливе? Я ж уважаю так. Як ти вважаєш, самовільно чи несамовільно вони чинять несправедливе та є несправедливими?  - Як на мене, самовільно, Сократе, бо вони лихі.  - Отже, ти вважаєш, що люди самовільно лихі та несправедливі?  - Авжеж. А чи ти ні?  - Як на мене, то навіть дуже [варте].  - То що ж воно таке?  - Чи не інше ніж те, що вважається справедливим?  - Не [відповідай] мені так; але якщо ти спитаєш мене, що таке око, я відповів би, що це те, чим ми дивимось, а якщо ти мене нукатимеш показати, я покажу тобі, і якщо спитаєш мене про ім’я душі, я скажу тобі, що нею ми пізнаємо; якщо ж ти знову спитаєш мене, що таке голос, я скажу тобі, що ним ми розмовляємо. Отже, і ти мені поясни, що таке справедливе, для чого воно використовується, так само як і те, про що я щойно запитував.  - Звісно, я не можу тобі так відповісти.  - Але оскільки ти не можеш цього, можливо, це буде легше знайти так: нуж бо, споглядаючи більше та менше, чим ми їх визначаємо, чи не мірою?  - Так.  - А  за  допомогою  міри  кот рим  уміння м?  Ч и  не  <37 3a> вимірювальним?  - Вимірювальним.  - А щодо легкого та важкого? Чи не вагою?  - Так.  - А за допомогою ваги котрим умінням? Чи не зважувальним1 ?  - Звісно ж.  - Нуж  бо,  споглядаючи  справедливе  та  несправедливе,  котрим знаряддям  ми  це  визначаємо,  а  за  допомогою  цього  знаряддя  котрим головно умінням? Чи і так тобі це неясне?  - Ні.  - Тоді знову звідси. Якщо ми сперечатимемось про більше та менше, хто нас розсудить? Чи не вимірювачі?  - Так.  - А  про  те,  чого  багато  і  <373b>  мало,  хто  розсудить?  Чи  не обчислювачі?  - Хто ж інший?  - Якщо  ж  ми  сперечатимемось  один  з  одним  про  справедливе  та несправедливе, до кого підемо, хто нас щоразу розсуджуватиме? Скажи!  - Чи ти про суддю2  говориш, Сократе?  - Ти  правильно  зрозумів.  Тоді  давай-но,  спробуй  сказати,  що  саме роблять вимірювачі, розсуджуючи про велике та мале, чи не вимірюють?  - Так.  - А про важке та легке, чи їх не зважують?  - Звісно, зважують.  - А про те, чого більше і менше, чи їх не обчислюють?                 Δόξα / Докса.– 2016. – Вип. 2 (26).            Δόξα / Докса.– 2016. – Вип. 2 (26).             189 188 і несправедливе.  - Так.  - А  т акож  не  обдурюват и  т а  обд урю ват и  –  і  справед ливе,  і несправедливе.  - Здається.  - І шкодити та допомагати і справедливе, і несправедливе?  - Так.  - Таким  чином,  як  здається,  всі  <374e>  ці  речі  і  справедливі,  і несправедливі.  - Мені це так уявляється.  - Послухай-но. Я маю одне око праве та одне ліве, як і інші люди?  - Так.  - Одну праву ніздрю та одну ліву?  - Так і є.  - Одну праву руку і одну ліву?  - Так.  - Тоді, називаючи одні [частини] мого [тіла] правими, а інші – лівими, якби я спитав тебе про них, ти би сказав мені, що одні є з правого боку, а інші – з лівого?  - Так.  - Нуж-бо,  оскільки  ти  одне  і  т е  ж  назвав  і  справедливим,  і несправедливим,  скажи,  <37 5a>  що  саме  є  справедливе,  а  що  – несправедливе?  - Тоді мені здається, що кожна [річ], що відбувається по-належному й у слушний час є справедлива, а що не по-належному – несправедлива.  - Добрий маєш погляд. Отже, той, хто по-належному чинить кожне з цього, той чинить справедливо, а хто не по-належному – несправедливо?  - Так.  - Отож,  той,  хто  чинить  справедливе,  є  справедливим,  а  той,  хто несправедливе,– несправедливим?  - Так і є.  - Хто  ж  той,  що  по-належному  й  у  слушний  час  є  вправним,  аби різати, припікати та викликати схуднення?  - Лікар.  - Бо володіє <375b> вмінням, чи через щось інше?  - Бо володіє вмінням.  - Хто ж той, що по-належному є вправним, аби підпушувати, орати та садовити?  - Рільник.  - Бо володіє вмінням, чи через щось інше?  - Ні, якщо вірити в чомусь віршотворцеві.  - Котрому віршотворцеві?  - Котрий сказав: «Ніхто своєю волею не є лихим, і ніхто проти волі – блаженним»4 . Але, Сократе, добре говорить давня приказка, що піснярі багато оманюють5 .  - Я  б  здивувався,  якби  цей  пісняр  оманював.  Тож,  як  маєш  час6 , поміркуймо, чи він говорить правду, чи брехню.  - Так, маю час.  - Тож, ти вважаєш за справедливе брехати чи говорити правду?  - Звісно, правду.  - Отже, брехати – несправедливо.  - Так.  - А обдурювати чи не обдурювати?  - Вочевидь, не обдурювати.  - Отже, обдурювати – несправедливо.  - Так.  - Що ж далі, справедливо шкодити чи допомагати?  - Допомагати.  - Отже, шкодити – несправедливо?  - Так.  - <374c>  Тобто  справедливо  говорити  правду,  не  обдурювати  та допомагати, а брехати, шкодити та обдурювати несправедливо.  - Зевсом присягаюся, так і є.  - І навіть ворогів?  - Аж ніяк.  - Навпаки,  шкод ит и  ворогам  справедливо,  а  д опомаг ат и  – несправедливо.  - Так.  - Тобто і, обдурюючи, справедливо шкодити ворогам?  - Як би ні?  - А брехати, аби обдурити їх та нашкодити їм? Чи це не справедливе?  - <374d> Так.  - Що ж, а допомагати друзям справедливе, чи не так?  - Авжеж.  - А чи обдурюючи, чи не обдурюючи на їхню користь?  - І обдурюючи, заради Зевса!  - Тобто і, обдурюючи, допомагати справедливо, але не брешучи? Чи навіть брешучи?  - І брешучи, справедливо.  - Отже виходить, як здається, брехати та говорити правду і справедливе,                 Δόξα / Докса.– 2016. – Вип. 2 (26).            Δόξα / Докса.– 2016. – Вип. 2 (26).             191 190  - А  вчинення  несправедливог о  виникає  через  існування несправедливого.  - Так.  - А несправедливість ненавмисна.  - Ненавмисна.  - От же,  несамовіль но  [люди]  чинять  несправедливість,  т а  є несправедливими й лихими.  - Несамовільно, це ж зрозуміло.  - Отже, пісняр не збрехав.  - Здається, що ні.  - Примитки 1 Приклад цього уміння Сократ наводить і в діалозі Хармід 166 та нижче. 2 В грецькій мові слово dikastes (суддя), є однокорінним зі словом dike, первісне  значення  котрого  –  «звичай,  побут,  уклад»,  але  серед  його значень  є  і  «право,  закон»,  і  «справедливість»,  і  «вирок»,  і  «судова справа», і навіть «покарання». Прикметник dikaios має в першу чергу значення «чесний, справедливий» і «справжній». 3 Можна перекласти і як «вживаючи слово», «словом». 4 Можливо,  це  вірш  Солона.  Його  наводять  також  Аристотель  в «Нікомаховій етиці» III, 6 (1113b, 14-15) , що Віктор Ставнюк переклав як «Ніхто по своїй волі не поганий (підлий) і проти волі не блаженний», та Епіхарм (DK 23B7). Аза Тахо-Годі в примітках до російського перекладу цього діалогу, що його виконала Сесіль Шейнман-Топштейн, помилково вказує, що цей вірш не зустрічається ніде інде. 5 Авторство цієї приказки схоліастом приписується Філохорові (Аттида І), Солону (Елегії) чи Платону. Див. Plato. Dialogi / Ed. C. Fr. Hermann.– Lipase, 1902, t. VI, p. 392. 6 Цікаво,  що  перше  значення  слова  skole,  від  якого  походить  і  наше «школа», – це саме «дозвілля», «вільний час». Пізніше цим словом почали назвати те, чим цей час заповнюється, тобто «вчені бесіди» та «учбові заняття», аж поки виникло й сучасне значення, діаметрально протилежне первісному. Псевдо-Платон О СПРАВЕДЛИВОМ (вступительное слово, перевод с древнегреческого и комментарии Ильи Бея) Первый перевод на украинский язык непосредственно с греческого кра ткого  со кр ат ич еско го   д иа ло га   неи зв естного  ав то ра   « О  - Бо володіє вмінням.  - А чи не так і з рештою речей? Хто володіє вмінням, той вправний, та потрібне чинить по-належному й у слушний час, а хто не володіє вмінням – ні.  - Так є.  - Отже, щоб і брехати, і обдурювати, і допомагати той є вправним, хто володіє вмінням, та кожну з цих речей чинить по-належному й у слушний час, а хто не володіє вмінням – ні?  - <375c> Маєш рацію.  - А той, хто чинить по-належному, і є справедливий?  - Так.  - І чинить це все через уміння.  - А як інакше?  - Тобто справедливий є справедливим через володіння вмінням.  - Так.  - Тож,  не спр аведливий  є  несправедливим  ч ере з  протилежне справедливому?  - Звісно.  - А справедливий – справедливим через мудрість.  - Так.  - Отже, через невігластво несправедливий є несправедливим.  - Виходить, так.  - Здається, пращури залишили нам, що мудрість – це справедливість, а невігластво – <375d> несправедливість.  - Схоже на те.  - Але ж чи люди є невігласами самовільно чи несамовільно?  - Несамовільно.  - Тоді і несправедливі вони несамовільно?  - Звісно.  - А несправедливі – лихі?  - Так.  - Отже, вони несамовільно лихі та несправедливі?  - В усьому так.  - Чинять несправедливість через те, що вони несправедливі?  - Так.  - Тож,  ненавмисно?  - Авжеж.  - Але навмисне не виникає через навмисне.  - Звісно, ні.                 Δόξα / Докса.– 2016. – Вип. 2 (26).            Δόξα / Докса.– 2016. – Вип. 2 (26).             193 192 Розділ 5 ПОЕЗІЇ справедливом». Здесь Сократ со своим собеседником пытаются найти ответ  на  вопрос,  что  является  справедливым.  Умение  определять справедливое сравнивается с другими умениями. Ключевые  слова:   сп раведлив ое,  Псев до-П лато н,  Сокра т, сократический,  диалог. Pseudo Plato ABOUT JUSTICE (foreword, translation from old Greek language and commentaries by Illya Bey) First Ukrainian translation directly from Old Greek of the short Socratic dialogue  About  justice   by  an  unknown  author.  Here  Socrates  and  his companion trying  to find  the answer to  what is justice.  The ability  to deter- mine the justice compared  with other skills.  Keywords: fair, Pseudo-Plato, Socrates, Socratic, dialogue. 
work_ub6dlb3aifa6xnrj5gyqi52wjy	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221737695 Params is empty 221737695 exception Params is empty 2021/04/06-03:20:36 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221737695 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:36 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_uclcvzpj2rh5pa6bvmm3tlc56u	----	Justice Stewart Meets the Press Syracuse University From the SelectedWorks of Keith J. Bybee 2014 Justice Stewart Meets the Press Keith Bybee, Syracuse University Available at: https://works.bepress.com/keith_bybee/8/ http://www.syracuse.edu/ https://works.bepress.com/keith_bybee/ https://works.bepress.com/keith_bybee/8/ Justice  Stewart  Meets  the  Press   Keith  J.  Bybee‡             ABSTRACT   Among  the  Supreme  Court  Justices  who  have  articulated  distinctive  views  of  free  expression,   Justice  Potter  Stewart  alone  placed  particular  emphasis  on  the  First  Amendment's  protection  of   a  free  press.  Drawing  upon  the  lessons  of  history,  the  plain  language  of  the  Constitution,  the   political  events  of  his  day,  and  his  own  personal  experience,  Stewart  argued  that  the  organized   news  media  should  be  considered  an  essential  part  of  the  checks-­‐and-­‐balances  competition   between  the  legislative,  executive,  and  judicial  branches  of  the  federal  government.  Stewart’s   emphasis  on  the  special  structural  function  of  the  established  press  placed  him  at  odds  with   most  of  his  colleagues  on  the  Supreme  Court.  His  thinking  is  also  in  tension  with  recent  changes   in  the  news  media  landscape.  With  the  decline  of  newspapers  and  the  rise  of  the  blogosphere,   the  United  States  faces  the  prospect  of  enjoying  a  great  deal  of  free  speech  and  yet  losing  its   free  press,  as  Stewart  understood  the  term.     This  is  a  working  paper.    The  final  version  is  to  be  submitted  for  review  and  inclusion  in  Judging   Free  Speech:  First  Amendment  Jurisprudence  of  U.S.  Supreme  Court  Justices,  Helen  J.  Knowles   and  Steven  B.  Lichtman,  eds.,  Palgrave  MacMillan       1   Although  there  are  nearly  fifty  words  in  the  First  Amendment,  a  few  Supreme  Court   Justices  have  developed  distinctive  approaches  to  free  expression  by  boiling  the  Amendment   down  to  just  a  single  phrase.  Justice  Hugo  Black,  for  example,  assigned  special  importance  to   three  words:  no  law  abridging.  “Certainly  the  First  Amendment's  language  leaves  no  room  for   inference  that  abridgments  of  speech  and  press  can  be  made  just  because  they  are  slight,”   Black  wrote  in  the  late  1950s.  “That  Amendment  provides,  in  simple  words,  that  ‘Congress  shall   make  no  law  .  .  .  abridging  the  freedom  of  speech,  or  of  the  press.’  I  read  ‘no  law  .  .  .  abridging’   to  mean  no  law  abridging.”  Since  no  provision  in  the  Constitution  limits  “the  scope  of  these   unequivocal  commands,”  Black  understood  the  First  Amendment  to  hold  that  no  “federal   agencies,  including  Congress  and  the  Court,  have  power  or  authority  to  subordinate  speech  and   press  to  what  they  think  are  more  important  interests.”1     Justice  Potter  Stewart,  whose  service  on  the  Court  (1958–1981)  overlapped  with  Justice   Black’s  for  thirteen  years,  also  found  special  significance  in  a  small  segment  of  the  First   Amendment.  Taking  up  the  same  passage  that  attracted  Black’s  attention  (“Congress  shall  make   no  law  .  .  .  abridging  the  freedom  of  speech,  or  of  the  press.”),  Stewart  zeroed-­‐in  on  the  words   “or  of  the  press.”2       Stewart’s  selection  is  in  many  ways  a  curious  one.  For  one  thing,  his  preferred  term  does   not  have  anything  like  the  intuitive  appeal  or  immediate  force  of  Black’s  favored  text.  It  is   difficult  to  imagine  Stewart  successfully  explaining  his  emphasis  on  the  press  simply  by   thundering,  “I  read  ‘or  of  the  press’  to  mean  or  of  the  press!”       Judging  by  the  views  of  other  informed  commentators,  it  is  also  by  no  means  clear  that   Stewart  identified  the  most  significant  or  worthy  protection  in  the  First  Amendment.  Scholars       2   have  argued  that  the  Press  Clause  adds  little  value  beyond  that  already  secured  by  the   Amendment’s  freedom  of  speech  guarantee.3  In  the  same  vein,  several  Supreme  Court  Justices   have  written  that  members  of  the  press  do  not  possess  any  unique  constitutional  privileges   beyond  those  held  by  other  speakers.4       Indeed,  some  Justices  have  gone  further  and  suggested  that  reporters,  far  from  being   elevated  above  other  speakers,  may  actually  be  located  somewhat  beneath  them.5  Chief  Justice   Warren  Burger  resolutely  opposed  all  broadcast  news  coverage  of  the  Court  and  prohibited  any   television  coverage  of  his  otherwise  public  speeches.  Burger  was  furious  when  CBS  News   broadcast  selections  from  audio  tapes  of  the  Court’s  oral  arguments  (the  fact  that  the  tapes   were  ten  years  old  did  nothing  to  cool  Burger’s  rage  and  he  demanded  that  the  FBI  investigate   how  CBS  News  obtained  the  recordings6).  Chief  Justice  William  Rehnquist,  Burger’s  successor,   maintained  the  barriers  to  media  coverage  instituted  by  his  predecessor.  Rehnquist  also  once   told  a  gathering  of  Court  reporters,  “the  difference  between  us  and  the  other  branches  of   government  is  that  we  don’t  need  you  people  of  the  press.”  Among  the  current  members  of  the   Court,  Justice  Samuel  Alito,  Justice  Ruth  Bader  Ginsburg,  Justice  Anthony  Kennedy,  and  Justice   Antonin  Scalia  have  all  publically  criticized  journalists.  Justice  Clarence  Thomas  has  called   members  of  the  media  “smart-­‐aleck  commentators,”  “snot-­‐nosed  brats,”  “talking  heads  who   shout  at  each  other,”  and  “snotty-­‐nosed  smirks.”       Stewart’s  valorization  of  press  freedom  not  only  seems  to  be  out  of  step  with  the  views   of  other  Justices,  but  also  seems  to  be  in  tension  with  his  own  reputation  as  a  jurist  more   interested  in  moderation  and  narrow  reasoning  than  in  bold  statements.7  Over  time  and  across   issues,  Stewart  voted  both  for  and  against  the  liberal  decisions  that  defined  the  Court  under       3   Chief  Justice  Earl  Warren.  As  the  Court  grew  more  conservative  under  Chief  Justice  Burger,   Stewart  continued  along  a  centrist  path,  endorsing  different  positions  along  the  ideological   spectrum  from  case  to  case.  By  all  accounts,  Stewart  thought  of  himself  as  a  careful  lawyer   advancing  his  arguments  only  so  far  as  the  issue  at  hand  required.  Stewart  was  willing  to  follow   this  method  of  highly  specific  analysis  and  narrow  decision-­‐making  whether  it  led  to  the  left,  to   the  right,  or  to  the  ground  between  the  contending  voting  blocs  on  the  high  bench.  Thus  the   twin  hallmarks  of  Stewart’s  overall  jurisprudence  were  “the  skill  of  precision”  and  “the   penchant  for  compromise  and  moderation.”8  On  the  whole,  “his  opinions  did  not  embody  a   judicial  philosophy  but  rather  were  specific  responses  to  legal  problems  that  came  before  him   in  concrete  cases.”9  This  is  hardly  the  sort  of  judge  that  one  would  expect  to  fashion  a  novel   reading  of  the  First  Amendment.     Why  did  Stewart  think  freedom  of  the  press  deserved  particular  attention?  How  did  the   singular  stress  he  placed  on  the  press  shape  his  understanding  of  free  speech  and  inform  his   decisions  on  the  Court?  What  was  the  value  of  Stewart’s  original  vision?  And  with  the  press  and   the  news  media  as  a  whole  now  undergoing  significant  change,  what  can  Justice  Stewart's   press-­‐freedom  jurisprudence  mean  today?   In  this  chapter,  I  approach  these  questions  first  by  surveying  Stewart’s  career  and   identifying  early  indications  of  his  interest  in  the  press.  I  then  flesh  out  Stewart’s  press-­‐centered   reading  of  the  First  Amendment  by  drawing  upon  the  writing  and  judicial  opinions  he  produced   while  on  the  bench.  I  explain  his  effort  to  anchor  the  distinctiveness  of  press  freedom  in  the   plain  text  of  the  Constitution,  and  I  outline  his  arguments  for  treating  established  media  as  a   fourth  estate  competing  with  the  judiciary,  legislative,  and  executive  branches  in  the       4   Constitution’s  checks-­‐and-­‐balances  system.  Although  there  were  some  internal  difficulties  with   his  account  and  he  did  not  win  over  a  majority  of  his  colleagues  on  the  Court,  his  overall  vision   was  a  provocative  one  that  portrayed  the  organized  press  as  one  of  American  government’s  key   institutional  structures.     Moving  forward  to  the  present  day,  I  then  consider  how  the  modern  transformation  of   traditional  newspapers  and  broadcast  media  intersects  with  Stewart’s  philosophy  of  and   arguments  for  press  freedom.  Stewart’s  views  were  rooted  in  a  historically  specific  conception   of  the  press  as  an  adversarial  watchdog  committed  to  the  objective  reporting  of  facts  and  the   continuous  monitoring  of  government.  News  journalism  has  altered  greatly  in  recent  decades,   producing  a  media  landscape  that  would  be  almost  unrecognizable  to  Stewart.  I  argue  that  the   rise  of  news  reporting  written  from  an  explicitly  political  perspective  (evident  in  the  work  of   MSNBC  and  Fox  News)  does  not  materially  undermine  Stewart’s  vision.  The  collapse  of   newspapers’  traditional  business  model  as  well  as  the  advent  of  the  blogosphere  are  far  more   problematic.  Even  as  the  internet  has  enabled  an  unprecedented  explosion  of  speech,  there  is   the  possibility  that  the  United  States  may  soon  be  without  a  free  press,  as  Stewart  understood   the  term.     Fast  Track  to  the  Supreme  Court   Potter  Stewart  was  born  into  a  prominent  and  well-­‐connected  family  in  1915.10  His   mother,  Harriet  Loomis  Potter,  came  from  a  family  that  controlled  the  oldest  bank  in  Michigan.   His  father,  James  Garfield  Stewart,  was  a  native  Ohioan  and  staunch  Republican  who  followed  a   very  successful  career  as  a  lawyer  with  a  very  successful  career  in  public  life,  first  as  a  member       5   of  the  Cincinnati  City  Council,  then  as  Cincinnati  mayor,  and  ultimately  as  a  justice  on  the  Ohio   Supreme  Court.   Stewart’s  youth  was  one  of  material  comfort  and  privilege.  His  boyhood  home  was  a   custom-­‐built  manse  with  a  living  room  forty-­‐six  feet  in  length  (for  reference,  forty-­‐six  feet  is   about  five  feet  longer  than  a  standard  seventy-­‐eight  passenger  school  bus11).  The  house  was  so   large  that  Stewart’s  father  got  lost  in  it  when  the  family  first  moved  in.  Stewart  attended   private  school  in  Cincinnati  and  then  boarding  school  at  Hotchkiss  in  Connecticut.  He  majored   in  English  at  Yale  University,  and  was  a  member  of  the  honor  society  Phi  Beta  Kappa  and  the   elite  secret  society  Skull  and  Bones.12  After  graduating  in  1936,  Stewart  spent  a  year  on   fellowship  at  Cambridge  University  and  subsequently  enrolled  in  Yale  Law  School,  where  future   President  of  the  United  States  Gerald  Ford  and  future  Supreme  Court  Justice  Byron  White  were   among  his  classmates.13         Stewart’s  first  job  after  law  school  was  at  the  prestigious  Wall  Street  law  firm   Debevoise,  Stevenson,  Plimpton  &  Page.  Like  many  Americans  of  his  generation,  Stewart  was   swept  up  by  World  War  II,  and  he  ended  up  spending  three  years  on  active  duty  as  a  navigator   in  the  Atlantic  Fleet.  Stewart  returned  to  Debevoise  after  the  war  only  to  leave  the  firm  and   move  back  to  Cincinnati  with  his  young  family  in  1947.  Stewart  joined  an  established  Cincinnati   law  firm  and,  like  his  father  before  him,  became  very  active  in  the  Republican  Party  and  city   politics.  He  was  soon  elected  to  the  Cincinnati  City  Council  and  appeared  to  be  on  his  way  to   becoming  mayor.  But  Stewart  instead  found  himself  headed  for  the  bench.  As  fate  would  have   it,  the  death  of  eighty-­‐year-­‐old  Judge  Xenophon  Hicks  left  a  vacancy  on  the  Sixth  Circuit  of   Appeals.  The  two  men  initially  considered  for  Hicks’s  position  were  rejected;  the  first  because       6   of  his  advanced  age  and  the  second  because  his  temperament  seemed  unsuited  for  judicial   work.  Stewart  was  then  recommended  to  the  Eisenhower  Administration  by  Ohio  Senator   Robert  Taft  with  the  somewhat  less-­‐than-­‐enthusiastic  (and  possibly  apocryphal)  endorsement,   “I  have  finally  found  someone  who  is  neither  too  old  nor  unqualified.”  Stewart  was  summarily   nominated  and  confirmed.  He  was  thirty-­‐nine  years  old.   Stewart  had  been  on  the  Sixth  Circuit  for  only  four  years  when  Supreme  Court  Justice   Harold  Burton  announced  he  would  retire  because  of  his  declining  health.  Stewart  was  tapped   for  the  open  seat,  in  part  because  he  was  well-­‐known  to  the  Republican  establishment  and   trusted  by  the  Eisenhower  Administration  to  side  with  the  more  conservative  bloc  on  the  Court   (Justices  Felix  Frankfurter,  Tom  Clark,  John  Harlan,  and  Charles  Whittaker)  against  the  liberals   (Chief  Justice  Warren  and  Justices  Hugo  Black,  William  Douglas,  and  William  Brennan).14  It  also   probably  did  not  hurt  that  during  the  search  for  Burton’s  replacement  Stewart  had  a  chance  to   schmooze  with  the  Eisenhower  Administration’s  new  Attorney  General,  William  P.  Rogers,  at  a   Yale  Law  School  alumni  event.       Stewart’s  appointment  came  in  the  fall  of  1958  just  as  the  Court’s  term  had  begun.  Since   Congress  was  not  in  session,  Stewart  was  sworn  in  and  began  to  serve  on  the  Court  without   Senate  confirmation.  The  formal  confirmation  process  followed  his  recess  appointment  six   months  later.  During  the  Senate  hearings,  Stewart  drew  some  opposition  from  Southern   Democrats  angered  by  his  unwillingness  to  denounce  the  landmark  desegregation  decision,   Brown  v.  Board  of  Education.15  Stewart  otherwise  attracted  broad  bipartisan  support  and  his   confirmation  passed  the  Senate  by  a  large  margin.  Thus,  Stewart  became  the  second  youngest   person  to  join  the  Court  since  the  Civil  War.16         7    Taken  as  a  whole,  Stewart’s  life  leading  up  to  his  Supreme  Court  appointment  presents   a  record  of  unbroken  professional  success  as  well  as  a  textbook  illustration  of  the  old  boy   network  in  action.  If  we  look  a  bit  more  closely  at  these  years,  we  can  also  find  some  indications   of  Stewart’s  special  interest  in  the  press.     Stewart  had  an  impressive  career  as  a  student  reporter  and  he  ultimately  became  editor   of  the  Yale  Daily  News.17  During  his  time  on  the  paper,  he  demonstrated  a  commitment  to   independent  journalism  by  authoring  articles  in  favor  of  New  Deal  programs  that  cut  against   the  Republican  sentiments  of  the  Yale  student  body.  Later  in  life,  as  a  party  activist  and  as  an   elected  official,  Stewart  undoubtedly  gained  an  appreciation  of  the  role  played  by  the  press  in   the  conduct  of  politics.  And  in  his  final  months  as  a  circuit  court  judge,  Stewart  began  to  show   how  his  regard  for  the  press  could  be  translated  into  constitutional  law.   The  case  was  Garland  v.  Torre.18  Marie  Torre,  an  entertainment  reporter  for  the  New   York  Herald  Tribune,  wrote  a  story  on  the  difficulties  besetting  the  production  of  a  television   special  featuring  the  actress  and  singer,  Judy  Garland.19  A  CBS  executive  told  Torre  that  Garland   had  a  “highly  developed  inferiority  complex”  generated  by  the  fact  that  Garland  thought  of   herself  as  “terribly  fat.”  Torre  quoted  the  executive  in  her  story  without  providing  the   executive’s  name.  After  the  story  was  published,  Garland  sued  CBS  for  (among  other  things)   making  false  and  defamatory  comments  about  her.  In  preparation  for  trial,  Garland’s  lawyer   demanded  that  Torre  name  her  source  and  Torre  refused,  citing  (among  other  things)  the  First   Amendment’s  guarantee  of  a  free  press.  A  federal  district  court  judge  ordered  Torre  to  give  up   her  source,  Torre  continued  to  refuse,  and  the  judge  sentenced  Torre  to  ten  days  in  jail  for       8   criminal  contempt.  Torre  appealed  the  district  court’s  decision  and  Stewart  found  himself  with   a  high-­‐profile  freedom  of  the  press  controversy  on  his  hands.20         Stewart  upheld  the  district  court  ruling,  but  did  so  in  a  way  that  recognized  important   safeguards  for  reporters.  He  began  with  the  assumption  that  the  First  Amendment  gives   journalists  some  protection  against  divulging  their  confidential  sources:  “we  accept  at  the   outset  the  hypothesis  that  compulsory  disclosure  of  a  journalist’s  confidential  sources  of   information  entails  an  abridgement  of  press  freedom  by  imposing  some  limitation  on  the   availability  of  news.”21  Stewart  then  argued  that  the  essential  task  of  the  court  was  to  balance   this  freedom  of  the  press  against  the  demands  of  the  judicial  process.  “Freedom  of  the  press,   hard-­‐won  over  the  centuries  by  men  of  courage,  is  basic  to  a  free  society.  But  basic  too  are   courts  of  justice,  armed  with  the  power  to  discover  truth.  The  concept  that  it  is  the  duty  of  a   witness  to  testify  in  a  court  of  law  has  roots  fully  as  deep  in  our  history  as  does  the  guarantee  of   a  free  press.”22  Stewart  ruled  that  in  the  case  at  hand  the  interest  in  “fair  administration  of   justice”  trumped  press  freedom.23  But  he  left  open  the  possibility  that  the  balance  might  come   out  the  other  way  if  the  courts  were  being  used  “to  force  a  wholesale  disclosure  of  a   newspaper’s  confidential  sources  of  news”  or  where  “the  identity  of  the  source  was  of  doubtful   relevance”  to  the  case  being  litigated.24       Stewart’s  agreement  with  the  lower  court  was  clearly  a  loss  for  an  individual  reporter:  it   meant  that  Torre  would  go  to  jail  for  ten  days.  At  the  same  time,  Stewart’s  rationale  was  also   an  important  victory  for  freedom  of  the  press,  signaling  that  other  reporters  might  prevail  in   the  future  as  courts  considered  the  shielding  of  sources  on  a  case-­‐by-­‐case  basis.  In  ringing   terms,  Stewart  had  ruled  that  the  Constitution  provided  some  special  protection  to  journalists’       9   newsgathering.  This  was  a  historic  claim  and  it  brought  Stewart  national  attention  for  the  first   time  in  his  career.25  As  we  shall  see,  Stewart  would  substantially  develop  and  deepen  his   commitment  to  press  freedom  during  his  tenure  on  the  Supreme  Court.     A  New  Constitutional  Structure:  The  Organized  Press   Why  did  press  freedom  deserve  special  emphasis  in  constitutional  law?  In  Garland  v.   Torre,  Stewart  answered  that  question  by  referring  to  the  centuries-­‐long  struggle  against   censorship.  As  Stewart  developed  his  free-­‐press  reading  of  the  First  Amendment  while  on  the   Supreme  Court,  he  relied  less  on  the  long  history  of  struggle  and  more  on  other  sources.  The   first  place  he  turned  was  to  the  plain  text  of  the  Constitution.       According  to  Stewart,  the  fact  that  press  freedom  is  explicitly  mentioned  alongside  free   speech  in  the  First  Amendment  must  mean  something:  “If  the  Free  Press  guarantee  meant  no   more  than  freedom  of  expression,  it  would  be  a  constitutional  redundancy.”26  Many  state   constitutions  contemporaneous  with  the  drafting  the  U.S.  Constitution  mentioned  freedom  of   the  press  without  recognizing  a  general  right  to  free  speech;  since  one  freedom  could  be   recognized  without  the  other,  Stewart  reasoned  that  the  Founders  must  have  understood   themselves  to  be  communicating  two  separate  ideas  when  they  listed  both  freedom  of  speech   and  freedom  of  the  press  in  the  First  Amendment.27   Stewart  argued  that  the  plain  text  of  the  Constitution  also  underscored  the  importance   of  press  freedom  in  yet  another  way:  the  terms  of  the  Constitution  failed  to  extend  protection   directly  to  any  private  business  other  than  the  press.28  As  a  “matter  of  abstract  policy,”  we   might  think  that  the  business  of  publishing  a  newspaper  is  no  more  worthy  of  protection  than,       10   say,  the  business  of  banking  or  the  practice  of  medicine.  “But  we  are  here  to  uphold  a   Constitution.  And  our  Constitution  does  not  explicitly  protect  the  practice  of  medicine  or  the   business  of  banking  from  all  abridgement  by  government.  It  does  explicitly  protect  the  freedom   of  the  press.”29  Thus,  freedom  of  the  press  was  not  only  constitutionally  distinct  from  freedom   of  speech—the  press  was  also  constitutionally  distinct  from  all  other  private  enterprise.   In  Stewart’s  view,  the  plain  text  of  the  Constitution  also  suggested  that  critical  to  the   press  was  its  status  as  a  formally  ordered  establishment.  Stewart  noted  that  the  roster  of  rights   in  the  Constitution  was  addressed  almost  exclusively  to  individuals.  “Most  of  the  other   provisions  in  the  Bill  of  Rights  protect  specific  liberties  or  specific  rights  of  individuals:  freedom   of  speech,  freedom  of  worship,  the  right  to  counsel,  the  privilege  against  compulsory  self-­‐ incrimination,  to  name  a  few.”30  In  contrast  to  the  all  these  individual  guarantees,  “the  Free   Press  Clause  extends  protection  to  an  institution.”31  As  a  result,  the  press  freedom  cannot  be   understood  as  simply  one  more  individual  liberty.  Instead,  the  Free  Press  Clause  must  be   understood  as  being,  “in  essence,  a  structural  provision  of  the  Constitution.”32  Reporters  do  not   receive  protection  as  individuals,  but  as  representatives  of  “the  organized  press,”  an  institution   that  Stewart  defined  as  consisting  of  “daily  newspapers  and  other  established  news  media.”33     In  principle,  Stewart’s  appeal  to  the  words  of  the  Constitution  gave  him  important   rhetorical  leverage.  He  could  concede  that  the  news  media  has  not  always  behaved  well.   “Newspapers,  television  networks,  and  magazines  have  some  times  been  outrageously  abusive,   untruthful,  arrogant  and  hypocritical,”  Stewart  acknowledged.  The  scorn  that  many  people   (including  a  number  of  Supreme  Court  Justices)  heaped  on  individual  journalists  was  often  well   deserved.  Yet,  in  spite  of  the  well-­‐earned  criticism,  Stewart  could  argue  that  the  protection  of       11   the  press  as  an  institution  must  be  maintained  because  it  is  clearly  mandated  by  the  plain   language  of  the  Constitution.  In  this  same  vein,  Stewart  could  use  the  words  of  the  Constitution   against  his  colleagues  on  the  Supreme  Court.  As  we  shall  see,  Stewart  often  advanced  his   understanding  of  the  press  freedom  in  dissent,  with  a  majority  of  the  Court  disagreeing  with  his   position.  By  grounding  his  views  in  the  explicit  words  of  the  Constitution,  Stewart  endeavored   to  side-­‐step  judicial  precedent  that  suggested  freedom  of  the  press  extended  no  further  than   the  individual  right  to  freedom  of  speech.34  In  doing  so,  he  could  portray  himself  as  an   unwavering  adherent  to  the  letter  of  the  nation’s  supreme  law  rather  than  as  a  Justice  who   happened  to  have  a  personal  affinity  for  journalists.   As  advantageous  as  the  plain  text  of  the  Constitution  could  be  for  a  press-­‐centered  view   of  the  First  Amendment,  it  also  had  an  important  limitation.  The  words  of  the  Constitution   conferred  a  special  status  on  the  press  without  ever  explaining  what  such  a  status  was  for.  Was   the  purpose  of  press  freedom  to  “insure  that  a  newspaper  will  serve  as  a  neutral  forum  for   debate,  a  ‘market  place  for  ideas,’  a  kind  of  Hyde  Park  corner  for  the  community”?35  Or  was  the   purpose  of  press  freedom  the  more  specifically  political  one  of  guaranteeing  “a  neutral  conduit   of  information  between  the  people  and  their  elected  leaders”?36  If  the  goal  was  to  secure  a   forum  in  which  any  idea  could  be  expressed,  then  constitutionally  required  press  freedom  was   consistent  with  the  government  regulating  the  media  to  make  sure  that  it  is  “genuinely  fair  and   open”  to  all  points  of  view.37  On  the  other  hand,  if  the  goal  was  simply  to  establish  clear  lines  of   communication  between  the  government  and  the  governed,  then  press  freedom  was   consistent  with  regulations  limiting  the  media  to  being  an  unbiased  carrier  of  political       12   messages.  And  what  if  the  purpose  of  press  freedom  was  something  else  altogether?  What   would  be  the  appropriate  reach  of  government  regulation  then?   In  an  innovative  move,  Stewart  argued  that  the  “primary  purpose”  of  the  Free  Press   Clause  was  to  “create  a  fourth  institution  outside  of  the  Government  as  an  additional  check  on   the  three  official  branches.”38  Stewart  supported  his  claim  with  a  wide  variety  of  sources.39  He   pointed  to  the  British  experience  centuries  before  the  American  Revolution  when  the  British   Crown  came  to  understand  that  a  free  press  meant  “expert,  organized  scrutiny  of  government.”   He  also  referred  to  the  American  Founders  who  thought  of  the  press  as  an  essential  restraint  on   government  excess,  and  to  the  nineteenth-­‐century  British  thinker,  Thomas  Carlyle,  who   considered  the  press  to  be  the  “Fourth  Estate,”  far  more  important  than  any  of  the  parties  that   held  elected  office.     Most  significantly,  Stewart  drew  upon  the  modern  American  experience  with   “investigative  reporting  and  an  adversary  press”  that  had  exposed  corruption  at  the  highest   levels  of  the  federal  government  and  had  catalyzed  the  resignation  of  President  Richard  Nixon.   Stewart  celebrated  the  adversarial  press  and  its  dedication  to  discovering  truth.  He  had  great   personal  respect  for  Bob  Woodward  and  Carl  Bernstein,  the  Washington  Post  reporters  who   had  doggedly  investigated  the  Watergate  burglary  and  cover-­‐up.40  In  fact,  after  Watergate,   Stewart  encouraged  Woodward  to  write  an  investigative  exposé  of  the  Supreme  Court  itself.   Stewart  wanted  to  use  the  press  to  check  judicial  excesses;  he  was  especially  interested  in   publicly  revealing  Chief  Justice  Burger’s  mismanagement  of  the  Court  and  removing  Burger   from  the  bench.  Woodward,  along  with  his  fellow  Washington  Post  colleague  Scott  Armstrong,       13   took  up  Stewart’s  suggestion  and  in  1979  published  The  Brethren,  a  scorching  behind-­‐the-­‐ scenes  critique  of  the  Court  that  relied  on  Stewart  as  the  primary  source.41   For  Stewart,  then,  history  (both  American  and  British)  and  contemporary  experience   together  demonstrated  that  the  function  of  the  organized  press  was  to  be  part  of  the  checks-­‐ and-­‐balances  system.  Committed  to  its  own  independent  investigation  and  verification  of   events  and  facts,  the  press  was  locked  in  an  endless  competition  with  the  legislative,  executive,   and  judicial  branches,  working  as  an  ever-­‐vigilant  guardian  to  keep  government  accountable   and  the  people  free.   Unlike  other  views  of  a  free  press’s  purpose  that  would  allow  regulation  to  ensure   openness  or  neutrality,  Stewart’s  checks-­‐and-­‐balances  understanding  put  a  premium  on  press   autonomy  and  the  protections  that  would  grant  the  news  media  the  wherewithal  to  confront   government  directly.42  Thus,  when  the  Supreme  Court  ruled  that  it  should  be  difficult  to  sue   newspapers  for  libel  in  order  to  ensure  that  the  public  discussion  remained  “uninhibited,   robust,  and  wide-­‐open”  replete  with  “vehement,  caustic,  and  sometimes  unpleasantly  sharp   attacks  on  government  and  public  officials,”  Stewart  voted  with  his  fellow  Justices.43  When   Stewart  felt  that  the  standard  of  proving  libel  had  later  shifted,  making  it  more  difficult  for  the   news  media  to  defend  itself  against  lawsuits,  he  dissented  and  urged  his  colleagues  to  return  to   a  standard  that  would  save  the  press  from  potentially  ruinous  litigation.44     Stewart  again  dissented  when  a  majority  of  the  Justices  expressed  varying  degrees  of   sympathy  for  the  view  that  reporters  could  be  required  to  disclose  confidential  sources  and   information  to  grand  juries.45  Stewart  argued  that  the  protection  of  confidentiality  followed   from  a  commonsense  set  of  propositions:  To  serve  their  constitutional  purpose  of  exposing       14   governmental  malfeasance,  newspapers  must  be  able  to  publish.  To  publish,  reporters  must  be   able  to  gather  news.  And  to  gather  news,  reporters  must  be  able  to  form  confidential   relationships  with  informants.  “If  it  is  to  perform  its  constitutional  mission,  the  press  must  do   far  more  than  merely  print  public  statements  or  publish  prepared  handouts.  Familiarity  with   the  people  and  circumstances  involved  in  the  myriad  background  activities  that  result  in  the   final  product  called  ‘news’  is  vital  to  complete  and  responsible  journalism,  unless  the  press  is  to   be  a  captive  mouthpiece  of  ‘newsmakers’.”46  According  to  Stewart,  giving  grand  juries   unrestricted  subpoena  power  over  journalists  would  deter  informants  from  talking  to  the  press,   and  in  turn  would  ensure  that  reporters  would  no  longer  be  able  to  independently  investigate   and  check  abuses  of  power  (for  a  indication  of  how  the  issue  of  shielding  confidential  sources   should  have  been  handled,  Stewart  helpfully  directed  his  fellow  Supreme  Court  Justices  to  his   old  circuit  court  decision  Garland  v.  Torre).47  In  short,  Stewart  insisted  that  the  sources  and   methods  of  the  press  must  be  shielded  against  government  interference.  In  cases  where  the   Court  considered  whether  media  could  be  compelled  to  follow  governmental  rules  about  what   to  publish,  Stewart  agreed  with  his  colleagues  when  they  supported  press  autonomy.48  He   vigorously  dissented  when  he  saw  press  autonomy  sacrificed  to  government  control.  49   This  is  not  to  say  that  Stewart  always  sided  with  journalists  whenever  they  landed  in   court.  For  Stewart,  remember,  the  ultimate  goal  was  to  preserve  a  competitive  system  of   checks-­‐and-­‐balances  between  the  judiciary,  the  legislature,  the  executive,  and  the  press.  The   system  would  not  be  meaningfully  competitive  if  one  player  was  given  a  permanent  advantage.   “The  press  is  free  to  do  battle  against  secrecy  and  deception  in  government,”  Stewart  wrote.       15   “But  the  press  cannot  expect  from  the  Constitution  any  guarantee  that  it  will  succeed.  .  .  .  [The   Constitution]  establishes  the  contest,  not  its  resolution.”50       Stewart  believed  it  was  appropriate  for  the  government  to  recognize  that  reporters   occasionally  needed  some  practical  accommodations  (for  example,  space  to  use  sound   equipment  and  cameras)  that  members  of  the  public  did  not.51  But,  as  a  matter  of  principle,   Stewart  thought  the  Constitution  did  not  require  that  members  of  the  press  be  given  access  to   information  and  institutions  beyond  that  given  to  the  public.  In  several  cases  where  journalists   sued  to  open  corrections  facilities  to  greater  coverage,  Stewart  not  only  voted  against  the   press,  but  also  wrote  the  opinion  of  the  Court  denying  the  press’s  demand  for  special  access.52   And  when  the  Court  ruled,  in  the  famous  Pentagon  Papers  case,  that  newspapers  could  publish   an  illegally  leaked,  classified  history  of  the  Vietnam  War,  Stewart  explained  that  his  agreement   with  the  Court’s  decision  did  not  mean  that  the  newspapers  could  not  ultimately  be  punished   by  Congress  for  what  they  had  printed.53  In  the  battle  of  checks-­‐and-­‐balances,  every  institution   must  learn  to  hold  its  own.  Whether  the  press  was  to  gain  or  lose  the  information  it  seeks  in   any  given  instance,  Stewart  thought  “we  must  rely,  as  so  often  in  our  system  we  must,  on  the   tug  and  pull  of  the  political  forces  in  American  society.”54     What  can  be  made  of  Stewart’s  press-­‐centric  reading  of  the  First  Amendment?  As  a   piece  of  constitutional  theorizing,  his  reading  was  inventive  and  provocative.  He  made  a  novel   case  for  the  separating  freedom  of  the  press  from  freedom  of  speech,  and  then  creatively   incorporated  the  organized  press  into  the  Constitution’s  fundamental  separation-­‐of-­‐powers   architecture.  As  James  Madison  had  written,  in  order  to  avoid  the  twin  evils  of  anarchy  and   tyranny  one  “must  first  enable  the  government  to  control  the  governed;  and  in  the  next  place       16   oblige  it  to  control  itself.”55  Madison  believed  that  the  constitutionally  established  rivalry   between  the  legislative,  judicial,  and  executive  branches  would  achieve  the  goal  of  a  self-­‐ controlled  government  by  pitting  ambitious  officials  against  one  another,  arranging  “the  several   offices  in  such  a  manner  as  that  each  may  be  a  check  on  the  other”  and  ensuring  that  “the   private  interest  of  every  individual  may  be  a  sentinel  over  the  public  rights.”56  Stewart  argued,   in  effect,  that  the  press  was  as  much  a  part  of  the  Madisonian  scheme  as  any  department  of  the   federal  government.  In  making  this  argument,  Stewart  could  claim  to  have  developed  a  fresh   way  of  understanding  the  First  Amendment  that  placed  the  institutional  media—an  entity  that   he  called  “a  conspiracy  of  intellect,  with  the  courage  of  numbers”—at  the  very  core  of   American  constitutionalism.57   One  difficulty  with  Stewart’s  argument  is  that  he  placed  the  press  in  the  somewhat   ambiguous  position  of  playing  official  and  non-­‐official  roles  at  the  same  time.  On  the  one  hand,   Stewart  was  committed  to  media  autonomy  and  to  making  sure  that  news  could  be  gathered   largely  without  governmental  interference.  On  the  other  hand,  Stewart  assigned  the  press  a   governing  position  as  a  constitutionally  denominated  participant  in  the  checks-­‐and-­‐balances   system.  News  journalists  were  simultaneously  outside  of  government  and  a  constituent   element  of  government.  Stewart  did  not  fully  explain  how  this  double  role  could  be  managed   by  the  press  or  by  the  other  branches  of  government.  Nor  did  he  explain  why  this  arrangement   would  be  accepted  as  legitimate  by  the  people  in  a  system  where  membership  in  the  federal   government  typically  required  election  or  appointment.  If  journalists  were  to  be  a  part  of  the   government,  why  should  they  be  exempt  from  formal  processes  of  ratification?       17   Another  difficulty  with  Stewart’s  approach  is  that  he  did  not  persuade  a  majority  of  his   colleagues  on  the  Supreme  Court  to  embrace  his  view.  As  a  consequence,  the  Court’s  treatment   of  press  freedom  in  some  ways  ended  up  being  quite  the  opposite  of  what  Stewart  had  hoped.   Consider,  again,  the  task  of  ensuring  a  competitive  checks-­‐and-­‐balances  system  that  included   the  organized  press.  Stewart’s  default  preference  was  to  allow  the  give-­‐and-­‐take  of  the  political   system  to  calibrate  the  positions  of  competing  institutions.  And,  in  fact,  for  much  of  American   history  the  press  established  and  defended  its  prerogatives  in  one  political  battle  after  another.   Beginning  in  mid-­‐twentieth  century,  however,  cases  involving  the  powers  and  freedom  of  the   established  press  began  to  surface  on  the  Supreme  Court’s  docket.58  At  this  point,  the  Court   became  a  player  and  the  referee  in  the  extended  checks-­‐and-­‐balances  game.  One  could  rightly   note  that  the  Court  frequently  plays  both  roles,  and  by  the  time  the  Court  began  hearing  press   cases  it  already  had  amassed  a  good  deal  of  experience  being  both  participant  and  rules  keeper   in  earlier  separation-­‐of-­‐powers  disputes  between  the  Court,  Congress,  and  the  President.59  But   in  other  separation-­‐of-­‐powers  cases,  all  members  of  the  Court  recognized  that  the  judiciary,   legislative,  and  executive  branches  are  the  central,  constitutionally  sanctioned  players.  This  was   not  the  case  when  it  came  to  the  organized  press.   Stewart  deemed  the  news  media  to  be  engaged  in  adversarial  competition  along  with   the  three  branches  of  government,  but  other  Supreme  Court  Justices  did  not  see  the   constitutionally  designated  system  of  checks-­‐and-­‐balances  at  stake  in  the  press  cases  they   heard.  Thus,  in  adjudicating  press  freedom  disputes,  the  other  Justices  came  to  think  of  the   news  media  as  just  another  claimant  rather  than  as  a  co-­‐equal  institution  playing  its   constitutionally  mandated  structural  role.  It  is  this  framing  of  the  news  media  that  prevailed  in       18   the  Court’s  First  Amendment  jurisprudence.  As  Chief  Justice  Roberts  told  an  audience  of   reporters  and  journalism  students  several  decades  after  Stewart  left  the  Court,  “Do  not  think   for  a  moment  that  [the  First  Amendment’s]  words  alone  will  protect  you.  Without  an   independent  judiciary  to  give  life  and  substance  to  the  constitutional  text  as  law,  the  words  are   nothing  but  empty  promises.”60  Roberts’s  assertion  that  the  media  owes  the  Court  a  primary   debt  of  gratitude  is  a  long  step  away  from  Stewart’s  belief  that  every  American  should  thank   the  press.61       One  way  back  to  Stewart’s  press-­‐centered  understanding  of  the  First  Amendment  might   be  for  the  Supreme  Court  to  disengage  itself  from  press  freedom  disputes  and,  as  Stewart   suggested,  allow  the  “tug  and  pull”  of  politics  to  determine  the  boundaries  of  the  separation-­‐ of-­‐powers  system.62  Calling  for  the  modern  Court  to  exit  an  area  that  has  been  under  its   jurisdiction  is  admittedly  a  tall  order.  And  even  if  judicial  disengagement  occurred  and  formal   legal  doctrine  no  longer  actively  rejected  the  idea  of  special  press  freedom,  there  remains  the   issue  of  change  in  the  press  itself.  Stewart  anchored  his  view  of  the  First  Amendment  in  a   specific  understanding  of  journalism  that  in  many  ways  no  longer  describes  the  media   landscape.  Regardless  of  the  Supreme  Court’s  current  disposition  toward  the  news  media,  we   must  ask  whether  it  is  still  possible  to  situate  the  press  within  the  checks-­‐and-­‐balances   structure.  I  take  up  this  question  in  the  next  section.     Watchdogs  and  Verification  Today   When  Stewart  looked  at  the  organized  press  of  his  day,  he  saw  a  set  of  print  and   broadcast  entities  that  were  dedicated  to  ideals  of  verification  and  watchdog  journalism.63       19   The  news  media  verified  the  accuracy  of  the  information  they  gathered  by  accessing  and   comparing  a  wide  variety  of  sources,  and  by  filtering  their  reporting  through  a  series  of  editors   before  publication  or  broadcast.  These  consensus  rules  and  procedures  of  good  journalism   were  designed  to  produce  an  objectively  valid  rendering  of  events.  Although  objectivity  might   not  be  achieved  in  any  given  news  story,  the  pursuit  of  it  was  broadly  accepted  as  a   professional  goal.  Continuous  scrutiny  of  government  was  another  widely  shared  goal.  News   journalists  not  only  strived  to  be  a  credible  source  of  objective  information,  but  also  worked  to   monitor  and  critique  those  in  power.  The  aim  was  to  investigate  the  doings  of  officials,  to   uncover  wrongdoing,  and  to  present  the  results  for  discussion  and  judgment—all  with  an  eye   toward  furnishing  citizens  with  the  information  they  needed  to  be  self-­‐governing.       The  objective,  watchdog  news  media  that  Stewart  knew  was  of  relatively  recent  vintage.   The  quest  for  objectivity  did  not  emerge  as  a  regulative  ideal  in  American  journalism  until  well   after  World  War  I.64  The  press’s  thoroughgoing  commitment  to  government  criticism  came   even  later.  It  is  true  that  the  American  practice  of  investigative  journalism  began  in  the  early   twentieth  century  with  muckraking,  a  brand  of  reform-­‐oriented  reporting  designed  to  expose   corruption  and  to  provoke  change.65  Even  so,  muckraking  was  an  exceptional  form  of   journalism  until  the  1960s  when  fallout  from  the  Vietnam  War  led  journalists  to  adopt  a  broadly   adversarial  relationship  to  government  and  to  dedicate  themselves  to  scrutinizing  the  uses  of   official  power.66       Stewart  understood  that  over  time  the  news  media  had  not  always  adhered  to  the  same   practices  or  ascribed  to  the  same  values.67  Yet,  he  did  not  appear  to  consider  whether       20   journalism  would  continue  to  change  and  how  change  might  affect  the  press’s  constitutional   role.       As  it  turns  out,  some  of  the  changes  that  have  occurred  in  the  decades  since  Stewart’s   retirement  from  the  bench  are  broadly  consistent  with  Stewart’s  original  vision.  Consider  the   rise  of  journalism  written  from  an  explicitly  partisan  point  of  view.  The  established  press  of   Stewart’s  time  universally  favored  a  studiously  impartial  voice  for  the  reportage  of  news,  with   journalists’  opinions  reserved  only  for  editorials.  This  consensus  has  fallen  apart.  Although   outlets  like  MSNBC  and  Fox  News  share  the  same  institutional  structure  as  other  news  media,   they  present  all  their  coverage  from  a  clearly  political  perspective.  Journalists  who  continue  to   stress  impartiality  in  their  reporting  have  argued  that  such  “activist”  news  media  seriously   undermine  the  ideals  of  verification  and  watchdog  monitoring:  politically  committed  journalists   not  only  portray  facts  as  they  would  like  them  to  be  (rather  than  as  they  are),  but  also  limit   scrutiny  to  the  public  officials  from  opposing  parties.68  There  is  some  truth  to  this  criticism,  but   it  should  not  be  overstated.  Unlike  the  partisan  newspapers  of  early  American  history,69  many   of  the  crusading  journalists  of  today  still  accept  the  ideal  of  objective  verification  and  argue  that   the  frank  statement  of  personal  values  makes  their  reporting  more  accurate  and  reliable.  As   Glenn  Greenwald  argues,  “rigorous  adherence  to  the  facts”  is  best  promoted  “by  being  honest   about  one’s  perspective  and  subjective  assumptions  rather  than  donning  a  voice-­‐of-­‐god,  view-­‐ from-­‐nowhere  tone  that  falsely  implies  that  journalists  reside  above  normal  viewpoints  and   faction-­‐loyalties  that  plague  the  non-­‐journalist  and  the  dreaded  ‘activist’.”70  The  disagreement   between  proponents  of  nonpartisan  and  partisan  journalism  is  not  over  whether  or  not  news   reporting  can  objectively  verify  facts,  but  how  such  verification  is  best  achieved.  As  for  holding       21   officials  accountable,  it  is  no  doubt  true  that  ideologically  committed  journalists  are  more  likely   to  monitor  their  opponents  more  closely  than  their  allies.  But  so  long  as  there  are  a  multitude   of  such  journalists  writing  from  a  wide  range  of  perspectives,  the  news  media  as  a  whole  can   still  play  an  important  watchdog  role  no  matter  which  party  happens  to  be  in  power.71     To  a  far  greater  degree  than  the  proliferation  of  openly  partisan  journalism,  it  is  the   rapid  decline  of  the  news  media’s  business  model  (especially  among  newspapers)  that   threatens  Stewart’s  conception  of  the  press  as  an  essential  constitutional  structure.  Revenue   generation  has  long  played  a  critical  role  in  the  development  of  the  American  press  into  a   powerful  institution.  As  the  great  newspaper  publisher  Joseph  Pulitzer  explained,  the   relationship  between  profit  and  a  robust  press  is  quite  direct:  “Circulation  means  advertising,   and  advertisements  mean  money,  and  money  means  independence.”72  At  newspapers  today,   money  pays  for  journalists  to  gather  the  news,  for  editors  to  supervise  the  journalists,  for  fact-­‐ checkers  to  confirm  claims,  for  graphic  designers  to  convey  information  visually,  for  technical   staff  to  build  and  use  databases,  and  for  lawyers  to  defend  the  press  against  lawsuits.73   Unfortunately,  the  money  is  now  drying  up  quickly:  in  2013,  the  latest  year  in  which  data  is   available,  newspaper  print  advertising  revenue  fell  to  its  lowest  level  (in  constant  dollars)  since   the  Newspaper  Association  of  America  began  tracking  revenue  in  1950.74  The  revenue  decline   began  in  2000  as  advertising  dollars  fled  from  newspapers  to  other  platforms.  And  the  decline   has  only  accelerated  in  recent  years,  with  print  advertising  revenues  decreasing  more  than  50%   in  the  last  five  years  alone.75  Newspapers  have  reported  some  new  advertising  revenues  from   digital  ventures.  But  the  new  revenue  streams  are  not  nearly  large  enough  to  compensate  for   the  drop  in  print  advertisements.76  As  a  consequence,  the  capacity  of  newspapers  to  engage  in       22   the  sort  of  newsgathering  and  adversarial  investigation  that  Stewart  prized  has  significantly   diminished.   In  view  of  this  decline,  it  is  tempting  to  argue  that  the  blogosphere  is  capable  of  taking   over  the  role  played  by  the  organized  press.77  One  might  think  of  the  blogosphere  as  a   watchdog  with  many  sets  of  eyes  turned  toward  public  affairs.  The  interests  and  opinions  of   individual  bloggers  are  highly  varied;  and  just  as  the  politically  committed  news  media  in   aggregate  may  check  the  government,  so  too  the  blogosphere  as  a  whole  may  ensure  that  that   every  official  act  is  monitored  from  a  wide  range  of  perspectives.  One  might  also  think  of  the   blogosphere  as  enacting  a  decentralized  form  of  verification.78  The  developing  set  of  norms  that   call  for  bloggers  to  link  to  original  sources,  to  post  self-­‐corrections,  and  to  encourage  critical   feedback  from  commenters,  engage  the  blogosphere  in  a  collective  process  of  error  correction.   The  result  is  a  kind  of  networked,  peer-­‐produced  review  that  replaces  the  one-­‐way   transmission  of  news  from  press  to  readers  with  the  multi-­‐directional  sharing  of  information   among  participants.   The  blogosphere  nonetheless  falls  quite  short  of  replacing  the  Fourth  Estate.  As  even   some  blogging  boosters  concede,  the  blogosphere  is  highly  dependent  on  the  reporting   produced  by  the  established  press.79  The  collective  error-­‐correction  practices  of  the   blogosphere  may  help  ensure  that  news  reports  are  accurately  disseminated  across  the   internet.  These  practices  might  also  help  verify  the  accuracy  of  the  news  reports  themselves  as   bloggers  scrutinize  a  journalist’s  sources  and  reasoning.  Yet,  this  dissemination  and  checking  of   the  news  is  not  the  same  as—or  a  substitute  for—independent,  professional  newsgathering.80       23   As  the  established  press  shrinks  and  fewer  news  stories  are  produced,  there  is  less  grist  to  be   run  through  the  blogosphere  mill.       Of  course,  it  is  true  that  blogs  allow  for  an  unprecedented  number  of  people  to  publish   information  about  what  is  happening  immediately  around  them.  It  is  also  true  that  disclosures   by  figures  like  Edward  Snowden  and  Bradley  Manning  (neither  of  whom  are  traditional  news   journalists)  injected  huge  troves  of  information  into  the  blogosphere  and,  in  turn,  produced   heated  discussion,  sharp  criticism,  and  sustained  pressure  for  government  accountability.     From  Stewart’s  perspective,  however,  neither  an  increase  in  local  reportage  nor  the   bold  actions  of  whistle  blowers  will  suffice.  Stewart  envisioned  the  competition  between  the   press  and  branches  of  government  taking  place  at  the  national  level,  where  the  power  is  the   greatest  and  the  risks  of  tyrannical  action  are  the  most  serious.  More  coverage  of  local  affairs   does  advance  the  idea  of  an  open  press,  a  free  marketplace  for  ideas  that  has  space  for  every   opinion  and  point  of  view.  Yet,  for  Stewart,  the  crucial  fact  is  that  a  marketplace  for  ideas  does   not  directly  address  the  Madisonian  challenge  of  bringing  a  strong  national  government  under   control.  Indeed,  as  we  have  seen,  Stewart  firmly  rejected  the  notion  that  aim  of  the  First   Amendment’s  Press  Clause  was  to  create  an  open  venue  for  all  expression.  He  insisted  instead   that  the  primary  purpose  of  press  freedom  was  to  fashion  “a  fourth  institution  outside  of  the   Government  as  an  additional  check  on  the  three  official  branches.”81  As  we  have  also  seen,   Stewart’s  use  of  the  word  “institution”  was  intentional  and  important.  Toe-­‐to-­‐toe  confrontation   with  federal  powers  requires  institutional  organization  to  ensure  that  that  engagement  in  the   checks-­‐and-­‐balances  system  is  vigorous,  consistent,  and  sustained.  Lone  acts  of  whistle  blowing   may  inspire  debate  and  lead  to  policy  change,  but  such  acts  are  costly  and  unlikely  to  be       24   regularly  repeated.  The  long  prison  term  being  served  by  Manning  and  the  life  in  exile  being   faced  by  Snowden  illustrate  the  high  price  individuals  can  be  compelled  to  pay  when  they   attempt  to  hold  the  government  accountable  on  their  own.  By  contrast,  the  institutional  press   spares  its  informants  from  enormous  personal  sacrifice  by  shielding  their  identities.  Stewart   understood  that  this  practice  was  essential  for  newsgathering  and  for  effectively  checking   government  (that  is  why  he  believed  the  anonymity  of  sources  deserved  constitutional   protection).  He  saw  checks-­‐and-­‐balances  as  an  endless,  grinding  contest  waged  by  formally   established  rivals.  Private  individuals  who  jump  in  without  organizational  support  run  the  risk  of   being  crushed.     Can  We  Live  Without  An  Institutional  Press?   Stewart’s  reading  of  the  First  Amendment  is  an  unusual  one.  Drawing  upon  history,  the   plain  text  of  the  Constitution,  contemporary  American  experience,  and  his  own  biography,   Stewart  interpreted  the  Press  Clause  as  a  structural  provision  inserting  the  organized  news   media  into  the  Constitution’s  checks-­‐and-­‐balances  system  alongside  the  judiciary,  legislative,   and  executive  branches  of  the  federal  government.  He  believed  that  if  the  established  press’s   autonomy  was  preserved,  then  reporters  would  directly  help  realize  the  grand  purposes  of  the   Constitution’s  separation-­‐of-­‐powers  design,  ensuring  that  the  ambitions  of  officials  are  pitted   against  one  another  and  that  the  powers  of  government  serve  the  public  interest.   There  were  some  internal  tensions  in  his  arguments  and  Stewart  had  limited  success   persuading  his  colleagues  on  the  Supreme  Court  to  accept  his  vision.  Over  time,  an  even  greater   difficulty  for  Stewart’s  view  emerged:  the  established  press  around  which  he  constructed  his       25   arguments  greatly  declined.  There  is  more  and  more  speech  today,  with  a  huge  diversity  of   ideas  and  opinions  continually  expressed  in  the  blogosphere.  But  there  is  also  less  and  less   adversarial,  investigative  journalism  backed  by  independent,  formally  organized  media   institutions.  It  is  this  kind  of  news  journalism  that  is  demanded  in  the  ceaseless  checks-­‐and-­‐ balances  contest.  Without  it,  we  are  a  nation  with  an  overflowing  free  marketplace  for  ideas— but  no  free  press.    Stewart  actually  contemplated  a  United  States  with  only  free  speech  and  concluded   that  it  was  “possible  to  conceive  of  the  survival  of  our  Republic  without  an  autonomous   press.”82  “For  openness  and  honesty  in  government,  for  an  adequate  flow  of  information   between  the  people  and  their  representatives,  for  a  sufficient  check  on  autocracy  and   despotism,  the  traditional  competition  between  three  branches  of  government  might  be   enough.”83  It  might  work.  But  Stewart  did  not  think  this  was  the  system  we  have  had  nor  did  he   believe  that  it  was  one  we  should  want.             26                                                                                                                                 Notes   ‡  Paul  E.  and  the  Hon.  Joanne  F.  Alper  '72  Judiciary  Studies  Professor,  Syracuse  University   College  of  Law;  Professor  of  Political  Science,  Maxwell  School  of  Citizenship  and  Public  Affairs;   and  Director,  Institute  for  the  Study  of  the  Judiciary,  Politics,  and  the  Media  at  Syracuse   University.  I  thank  Nicole  Elsasser  Watson  for  truly  excellent  research  assistance.  In  addition  to   her  tireless  research  and  careful  copyediting,  I  am  grateful  to  Nicole  for  highlighting  the   tensions  in  Stewart’s  treatment  of  the  media  as  both  an  official  and  unofficial  actor  at  the  same   time.     1  Smith  v.  California,  361  U.S.  147,  157–59  (1959)  (Black,  J.,  concurring)  (emphasis  original)   (some  internal  quotation  marks  omitted).  For  a  detailed  treatment  of  Justice  Black’s   understanding  of  the  First  Amendment,  see  Kevin  J.  McMahon  and  Michael  Paris,  “[Chapter   Title],”  chap.  3  in  The  Free  Speech  Jurisprudence  of  Justice  Hugo  L.  Black  ([City]:  [Press],  [Year]).   2  Potter  Stewart,  Or  of  the  Press,  26  HASTINGS  L.J.  631  (1974–1975).   3  Vikram  David  Amar,  From  Watergate  to  Ken  Starr:  Potter  Stewart’s  “Or  of  the  Press”  A  Quarter   Century  Later,  50  HASTINGS  L.J.  711  (1999);  Margaret  A.  Blanchard,  The  Institutional  Press  and  Its   First  Amendment  Privileges,  1978  SUP.  CT.  REV.  225  (1978).   4  Citizens  United  v.  Fed.  Election  Comm’n,  558  U.S.  310,  352  (2010);  Dun  &  Bradstreet,  Inc.  v.   Greenmoss  Builders,  Inc.,  472  U.S.  749,  783–84  (1985)  (Brennan,  J.,  dissenting).             27                                                                                                                                                                                                                                                                                                                                                                                                           5  Except  where  indicated,  I  draw  the  information  and  quotations  in  the  remainder  of  this   paragraph  from  RonNell  Andersen  Jones,  U.S.  Supreme  Court  Justices  and  Press  Access,  2012   B.Y.U.  L.  REV.  1791  (2012).     6  Keith  J.  Bybee,  Open  Secret:  Why  the  Supreme  Court  has  Nothing  to  Fear  from  the  Internet,  88   CHI.-­‐KENT.  L.  REV.  309  (2013).   7  Leon  Friedman,  “Potter  Stewart,”  in  The  Justices  of  the  United  States  Supreme  Court:  Their   Lives  and  Major  Opinions,  eds.  Leon  Friedman  and  Fred  L.  Israel  (New  York:  Chelsea  House   Publishers,  1997),  4:  1546–73;  Gayle  Binion,  “Potter  Stewart,”  in  Biographical  Encyclopedia  of   the  Supreme  Court:  The  Lives  and  Legal  Philosophies  of  the  Justices,  ed.  Melvin  I.  Urofsky   (Washington,  D.C.:  CQ  Press,  2006),  486–92.   8  Binion,  “Potter  Stewart,”  489.   9  Friedman,  “Potter  Stewart,”  1547.   10  Except  where  indicated,  this  biographical  section  of  the  chapter  draws  upon  Joel  Jacobsen,   Remembered  Justice:  The  Background,  Early  Career,  and  Judicial  Appointments  of  Justice  Potter   Stewart,  35  AKRON  L.  REV.  227  (2002)  for  the  material  on  Stewart’s  life  and  early  career.   11  See  “Blue  Bird  Vision,”  Blue  Bird  Corporation,  accessed  on  June  2,  2014,  http://www.blue-­‐ bird.com/uploadedFiles/Downloads/bb-­‐vision.pdf.   12  For  more  information  on  Phi  Beta  Kappa,  see  “The  Phi  Beta  Kappa  Society,”  The  Phi  Beta   Kappa  Society,  accessed  on  June  2,  2014,  https://www.pbk.org/home/index.aspx.  On  Skull  and   Bones,  see  Buster  Brown,  “Skull  &  Bones:  It's  Not  Just  for  White  Dudes  Anymore,”  The  Atlantic,   February  25,  2013,  accessed  on  June  2,  2014,         28                                                                                                                                                                                                                                                                                                                                                                                                           http://www.theatlantic.com/national/archive/2013/02/skull-­‐and-­‐bones-­‐its-­‐not-­‐just-­‐for-­‐white-­‐ dudes-­‐anymore/273463/.       13  Stewart  is  also  said  to  have  attended  Yale  with  future  President  of  the  United  States  George   H.W.  Bush  (see  Friedman,  “Potter  Stewart,”  1458–49).  This  appears  not  to  have  been  the  case   (Jacobsen,  “Remembered  Justice,”  232).  The  mistake  is  understandable  given  the  elite  circles  in   which  Stewart  traveled  and  given  the  fact  that  Stewart  and  Bush  were  later  to  become  friends.     14  Friedman,  “Potter  Stewart,”  1550.  Given  the  record  of  moderation  that  Stewart  compiled  on   the  Court  (described  at  the  outset  of  this  chapter),  anyone  who  expected  him  to  side  only  with   the  conservatives  was  bound  to  be  disappointed.   15  Brown  v.  Bd.  of  Educ.,  347  U.S.  483  (1954).  Although  there  were  liberals  and  conservatives  on   the  high  bench,  Brown  v.  Board  of  Education  had  been  decided  unanimously.   16  When  confirmed  in  1991,  Justice  Clarence  Thomas  took  over  the  spot  of  second  youngest   individual  to  join  the  modern  Court  by  being  a  few  months  younger  than  Stewart.   17  Friedman,  “Potter  Stewart,”  1549;  Rowena  Scott  Comegys,  Potter  Stewart:  An  Analysis  of  his   Views  on  the  Press  as  Fourth  Estate,  59  CHI.-­‐KENT  L.  REV.  157  (1983).       18  Garland  v.  Torre,  259  F.2d.  545  (1958).  This  case  was  argued  in  the  Second  Circuit  Court  of   Appeals.  Stewart,  a  judge  on  the  Sixth  Circuit,  was  sitting  by  designation  in  the  Second  Circuit.   For  an  overview  of  the  designation  process,  see  Dan  Baker-­‐Jones,  “Sitting  by  Designation,”  Nota   Bene  (blog),  April  25,  2012,  accessed  on  June  2,  2014,   http://notabeneuh.blogspot.com/2012/04/sitting-­‐by-­‐designation.html.     19  I  draw  the  background  information  of  the  case  from  Jacobsen,  “Remembered  Justice.”         29                                                                                                                                                                                                                                                                                                                                                                                                           20  Garland  was  decided  by  a  three-­‐judge  panel.  Stewart  wrote  the  opinion  and  was  joined  by   Second  Circuit  Chief  Judge  Charles  Edward  Clark  and  Second  Circuit  Judge  Caroll  C.  Hincks.  As   luck  would  have  it,  both  Clark  and  Hincks  were,  like  Stewart,  Yale  men.  See  “Biographical   Directory  of  Federal  Judges:  Clark,  Charles  Edward,”  Federal  Judicial  Center,  accessed  on  June  2,   2014,  http://www.fjc.gov/servlet/nGetInfo?jid=439&cid=999&ctype=na&instate=na;   “Biographical  Directory  of  Federal  Judges:  Hincks,  Carroll  Clark,”  Federal  Judicial  Center,   accessed  on  June  2,  2014,   http://www.fjc.gov/servlet/nGetInfo?jid=1052&cid=999&ctype=na&instate=na.   21  Garland,  259  F.2d.  at  548.   22  Ibid.   23  Ibid.,  549.   24  Ibid.,  549–50.   25  Jacobsen,  “Remembered  Justice,”  246–47.   26  Stewart,  “Or  of  the  Press,”  633.     27  Ibid.,  633–34.   28  Ibid.,  633.   29  Zurcher  v.  Stanford  Daily,  436  U.S.  547,  576  (1978)  (Stewart,  J.,  dissenting).   30  Stewart,  “Or  of  the  Press,”  633.   31  Ibid.   32  Ibid.  (emphasis  original).   33  Ibid.,  631.         30                                                                                                                                                                                                                                                                                                                                                                                                           34  For  a  list  of  such  precedents,  see  Blanchard,  “Institutional  Press.”   35  Stewart,  “Or  of  the  Press,”  634.   36  Ibid.   37  Ibid.,  635.   38  Ibid.,  634.   39  Ibid.,  631–32,  634,  637.  For  brief  review  of  the  term  “Fourth  Estate,”  see  Comegys,  “Potter   Stewart,”  162–63.     40  Richard  Davis,  Justices  and  Journalists:  The  U.S.  Supreme  Court  and  the  Media  (New  York:   Cambridge  University  Press,  2011),  137–38.   41  Bob  Woodward  and  Scott  Armstrong,  The  Brethren:  Inside  the  Supreme  Court  (New  York:   Simon  and  Schuster,  1979).   42  Stewart  did  not  think  that  effective  press  scrutiny  of  different  parts  of  government  required   identical  levels  of  press  freedom.  Given  the  different  way  in  which  the  judiciary  functions,  for   example,  greater  restrictions  on  access  and  disclosure  may  be  appropriate  for  coverage  of  the   courts.  See  Comegys,  “Potter  Stewart,”  179–80.   43  N.Y.  Times  Co.  v.  Sullivan,  376  U.S.  254,  279  (1964).   44  Herbert  v.  Lando,  441  U.S.  153,  199–203  (1979)  (Stewart,  J.,  dissenting).   45  Branzburg  v.  Hayes,  408  U.S.  665,  725–52  (1972)  (Stewart,  J.,  dissenting).   46  Ibid.,  729.   47  See  Branzburg,  408  U.S.  at  743,  n.  33.         31                                                                                                                                                                                                                                                                                                                                                                                                           48  Columbia  Broad.  Sys.,  Inc.  v.  Democratic  Nat’l  Comm.,  412  U.S.  94,  132–46  (1973)  (Stewart,  J.,   concurring);  Miami  Herald  Publ’g  Co.  v.  Tornillo,  418  U.S.  241  (1974).   49  Pittsburgh  Press  Co.  v.  Pittsburgh  Comm’n  on  Human  Relations,  413  U.S.  376,  400–04  (1973)   (Stewart,  J.,  dissenting).   50  Stewart,  “Or  of  the  Press,”  636.   51  Houchins  v.  KQED,  Inc.,  438  U.S.  1,  16–19  (1978)  (Stewart,  J.,  concurring).   52  Pell  v.  Procunier,  417  U.S.  817  (1974);  Saxbe  v.  Wash.  Post  Co.,  417  U.S.  843  (1974).   53  N.Y.  Times  Co.  v.  United  States,  403  U.S.  713,  727–31  (1971)  (Stewart,  J.,  concurring).   54  Stewart,  “Or  of  the  Press,”  636.     55  THE  FEDERALIST  NO.  51  (James  Madison).     56  Ibid.   57  Stewart,  “Or  of  the  Press,”  634.   58  The  date  is  from  ibid.,  632.  Blanchard  traces  the  first  institutional  press  cases  to  the  late   1930s  and  early  1940s  (“Institutional  Press,”  228).   59  One  of  the  earliest  and  more  striking  examples  of  the  Court’s  double  role  in  the  separation-­‐ of-­‐powers  context  can  be  found  in  Marbury  v.  Madison,  5  U.S.  137  (1803).     60  Carol  L.  Boll,  “Newhouse  III  Dedication:  A  Day  to  Remember,”  Newhouse  Network,  Fall  2007,   3.  Although  the  Supreme  Court’s  doctrine  is  not  particularly  favorable  to  the  press,  scholars   have  noted  that  the  lower  courts  have  in  practice  recognized  some  special  accommodations  for   reporters.  See,  for  example,  David  A.  Andersen,  Freedom  of  the  Press,  80  TEX.  L.  REV.  429  (2002).   For  the  argument  that  the  Obama  Administration  has  similarly  pursued  a  somewhat         32                                                                                                                                                                                                                                                                                                                                                                                                           contradictory  policy  of  refusing  and  endorsing  special  press  protection,  see  Adam  Liptak,   “Supreme  Court  Rejects  Appeal  From  Reporter  Over  Identity  of  Source,”  New  York  Times,  June   2,  2014,  accessed  on  June  2,  2014,  http://www.nytimes.com/2014/06/03/us/james-­‐risen-­‐faces-­‐ jail-­‐time-­‐for-­‐refusing-­‐to-­‐identify-­‐a-­‐confidential-­‐source.html.   61  Stewart,  “Or  of  the  Press,”  637.   62  Ibid.,  636.     63  I  draw  the  description  of  the  news  media  in  this  paragraph  from  Michael  Schudson,   Discovering  the  News:  A  Social  History  of  American  Newspapers  (New  York:  Basic  Books,  1978).   For  an  extended  discussion  of  journalistic  ideals,  see  Bill  Kovach  and  Tom  Rosenstiel,  The   Elements  of  Journalism:  What  Newspeople  Should  Know  and  the  Public  Should  Expect  (New   York:  Crown  Publishers,  2001).   64  Schudson,  Discovering  the  News,  121–59.   65  Louis  Filler,  Crusaders  for  American  Liberalism  (Yellow  Springs:  Antioch  Press,  1961);  Thomas   C.  Leonard,  The  Power  of  the  Press:  The  Birth  of  American  Political  Reporting  (New  York:  Oxford   University  Press,  1986).   66  Schudson,  Discovering  the  News,  160–94.       67  Stewart,  “Or  of  the  Press,”  631.   68  Bill  Keller,  “Is  Glenn  Greenwald  the  Future  of  the  News?,”  New  York  Times,  October  27,  2013,   accessed  on  June  2,  2014,  http://www.nytimes.com/2013/10/28/opinion/a-­‐conversation-­‐in-­‐ lieu-­‐of-­‐a-­‐column.html?module=Search&mabReward=relbias%3Ar.     69  Schudson,  Discovering  the  News,  12–60.         33                                                                                                                                                                                                                                                                                                                                                                                                           70  Keller,  “Glenn  Greenwald”.   71  For  the  argument  that  watchdog  journalism  has  long  had  a  political  bias,  see  Ricardo  Puglisi   and  James  M.  Snyder,  Jr.,  “Newspaper  Coverage  of  Political  Scandals,”  The  Journal  of  Politics  73   (2011):  931–950.   72  Quoted  in  George  Brock,  Out  of  Print:  Newspapers,  Journalism,  and  the  Business  of  News  in   the  Digital  Age  (London:  Kogan  Page,  2013),  56.   73  Keller,  “Glenn  Greenwald”.     74  Mark  J.  Perry,  “Creative  Destruction:  Newspaper  Ad  Revenue  Continued  Its  Precipitous  Free   Fall  in  2013,  and  It’s  Probably  Not  Over  Yet,”  American  Enterprise  Institute:  Carpe  Diem  (blog),   April  25,  2014,  accessed  on  June  2,  2014,  http://www.aei-­‐ideas.org/2014/04/creative-­‐ destruction-­‐2013-­‐newspaper-­‐ad-­‐revenue-­‐continued-­‐its-­‐precipitous-­‐free-­‐fall-­‐and-­‐its-­‐probably-­‐ not-­‐over-­‐yet/.     75  Ibid.   76  Jordan  Weissmann,  “The  Decline  of  Newspapers  Hits  a  Stunning  Milestone,”  Slate:  Moneybox   (blog),  April  28,  2014,  accessed  on  June  2,  2014,   http://www.slate.com/blogs/moneybox/2014/04/28/decline_of_newspapers_hits_a_mileston e_print_revenue_is_lowest_since_1950.html     77  Steven  Johnson  and  Paul  Starr,  “Are  We  on  Track  for  a  Golden  Age  of  Serious  Journalism?,”   Prospect,  May  4,  2009,  accessed  on  June  2,  2014,   http://www.prospectmagazine.co.uk/magazine/areweontrackforagoldenageofseriousjournalis m/.           34                                                                                                                                                                                                                                                                                                                                                                                                           78  Paul  Horwitz,  First  Amendment  Institutions  (Cambridge:  Harvard  University  Press,  2013),  166– 73.     79  Ibid.,  171.   80  Johnson  and  Starr,  “Golden  Age”.   81  Stewart,  “Or  of  the  Press,”  634.   82  Ibid.,  636.   83  Ibid.   Syracuse University From the SelectedWorks of Keith J. Bybee 2014 Justice Stewart Meets the Press Microsoft Word - Bybee_Justice Stewart Meets the Press.docx 
work_ugdidmsr75behpbrvgqkhqooei	----	\\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 1 4-OCT-04 12:59 REACTION ESSAY INVOLVING LAY PEOPLE IN CRIMINAL JUSTICE ADAM CRAWFORD University of Leeds Despite the contemporary academic and policy interest surrounding restorative and community justice, rigorous and extensive evaluations of initiatives are only recently coming to the fore, to take their place alongside small-scale case studies and anecdotes as ways of understanding and storytelling about restorative and community justice in public policy discourse. In their article, Karp and Drakulich have added a further important layer to our comprehension of the possibilities and pitfalls in implementing particular models of justice informed by restorative ideals. In what follows, I want to reflect on a fundamental, but often unasked, public policy question raised by the Vermont Reparative Boards and the thoughtful evaluation of them provided by Karp and Drakulich; namely; why involve lay people in criminal/restorative justice interventions? As they note, “there are still important questions to ask about the increased involvement of volunteers in the criminal justice system.” In reflecting on these questions, I will draw on some recent developments in England and Wales, referred to by the authors in their article, notably, research conducted into Youth Offender Panels, which share some (qualified) similarities with Reparative Boards (see Crawford and Newburn, 2003). RECENT POLICY DEVELOPMENTS IN ENGLAND AND WALES The idea of justice as entailing participation and deliberation by citizens has deep normative and historic roots. In England and Wales, the central practices of participatory democracy at the heart of traditional criminal justice have been the institutions of the jury and the lay magistracy, both of which share the notion of “judgement by one’s peers.” However, both of these have become increasingly circumscribed in recent years under managerialist pressures. In the name of cost savings, speeding up court processes, and efficiency benefits, modernizing reforms have encouraged a reduction in lay participation in court processes and an increased reliance on paid and legally qualified professionals. The right to trial by jury has been increasingly eroded by successive legislation. So too, there has been VOLUME 3 NUMBER 4 2004 PP 101–111 R \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 2 4-OCT-04 12:59 102 CRAWFORD an increased reliance on professional stipendiary magistrates,1 in part, at the expense of the lay magistracy. To an extent, this is due to a perception in government circles that the lay magistracy “as a symbol of the unmodernised court” is “now under pressure as never before” (Raine 2000:19). In sum, recent managerialist reforms have had ambiguous effects within criminal justice. On the one hand, they have promoted the voluntarization and civilianization of public services through contracting out and challeng- ing professional cultures and practices. On the other hand, they have encouraged a reprofessionalization and delocalization on the basis of cen- tralized standards, performance measurements and cost efficiencies. YOUTH OFFENDER PANELS The Youth Justice and Criminal Evidence Act 1999 established the Referral Order as a new primary sentencing disposal for 10–17-year-olds pleading guilty and convicted for the first time by the courts. Under it, the courts are required to refer all young offenders not given an absolute dis- charge, a hospital order, or custody, to a Youth Offender Panel for a speci- fied period of 3 to 12 months depending on the seriousness of the crime, as determined by the court. Therefore, unlike Reparative Boards, Youth Offender Panels deal with more than just “minor crimes.” They have become the mandatory criminal justice disposition for most young offend- ers appearing in court for the first time and pleading guilty to at least one offense for which they are charged. They are also available throughout England and Wales, in both “quaint and not-so-quaint settings.” Like Reparative Boards, however, the intention is that the panel will provide a forum away from the formality of the court where the young offender, his or her family, and where appropriate, the victim can consider the circumstances surrounding the offense and the effect on the victim. The panel agrees a “contract” with the young offender, which lasts for the duration of the Referral Order (as laid down by the court). It is intended that the work of Youth Offender Panels is governed by the principles underlying the concept of restorative justice, defined as “restoration, rein- tegration and responsibility” (Home Office, 1997). Unlike Reparative Boards, Youth Offender Panels consist of a mix of at least two community volunteers, recruited and trained by the Youth Offending Service (YOS),2 and a professional YOS member. One of the two community volunteers has responsibility for chairing and leading the 1. Now referred to as District Judges. 2. The YOS is a multidisciplinary team comprising representatives of the police, probation, education, and health and social services charged with delivering youth justice. \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 3 4-OCT-04 12:59 REACTION ESSAY 103 panel deliberations. The intention is that panel meetings are held in loca- tions as close as possible to where the young person lives and from which the volunteers are drawn. After initial pilots, Youth Offender Panels were implemented across the 155 YOSs in England and Wales as of April 2002. Research evidence from the Referral Order pilots suggests that Youth Offender Panels provide a constructive new forum in which to address young people’s offending behavior in novel and different ways (Newburn et al., 2002). In this, the involvement of community panel members has been at the heart of the changes. Although not unproblematic, it may nev- ertheless be one of the most important safeguards against the excesses of recent managerialist pressures on youth justice. Ensuring diverse volun- teer involvement in panels can lead to the inclusion of a broader range of approaches and values than perhaps had been anticipated at the outset. It may also lead to the development of localized practices that, because they are fostered, determined, and owned by volunteers rather than profession- als, are relatively resistant to the demands of bureaucratic managerialism. In this manner, panels potentially open a space for a different type of dia- logue to occur in response to incidences of crime. Nevertheless, the implementation of Youth Offender Panels presents a number of fundamental challenges to the culture and organizational prac- tice of youth justice. First, working with victims presents deep-rooted diffi- culties for YOSs. Integrating victims as people and a victim perspective as a way of working into the core of their services is no easy task, and it may appear to sit awkwardly alongside concerns for the young people with whom they work. Presenting victims with real choices over attendance, input, and participation requires adaptations of cultural assumptions and working practices. One broad lesson for restorative justice from the experience of Youth Offender Panels in England and Reparative Boards in the United States may be that in practice there can be a tension between community involvement and victim participation. As Karp and Drakulich note, their research found “substantial community involvement and limited victim involvement,” as did the Youth Offender Panel evaluation. Although panels received high levels of satisfaction from victims on measures of pro- cedural justice, including being treated fairly and with respect, as well as being given a voice in the process, it was estimated that victims only attended in 13% of relevant cases. The concern is that involvement of community representatives can serve to sideline or operate at the expense of direct victim input. The community may be felt to be capable of bring- ing a victim perspective through its own role as an indirect or secondary victim of the crime. This expanded notion of victim feeds into restorative justice models of harm, but it may limit the involvement of actual victims. This is not to suggest that community involvement will always function in \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 4 4-OCT-04 12:59 104 CRAWFORD this way, but rather that in a system that is unwilling or reluctant to accord to victims a central stake, community participation can be used as an excuse for victim nonattendance. The low level of victim participation at English panels and Vermont Reparative Boards raises important questions about the cultural and organizational challenges presented by attempts to integrate victims into the heart of criminal justice processes. Second, working with volunteers as equal partners in an inclusive pro- cess presents real challenges to the way in which professional YOS staff work. In the pilot sites, although making significant progress, panels only uncovered a small part of the potential contribution of volunteers. There is clearly still much more that can be done in relation to their involvement as a broader resource in delivering a form of justice that links panels to wider communities in which they are located and the latent forms of social con- trol that reside therein. Panels in England potentially suffer the same dichotomy identified by Karp and Drakulich that “competency building is one of the most theoretically exciting but practically disappointing parts of the program.” Third, organizing Youth Offender Panels presents considerable adminis- trative hurdles that challenge traditional ways of working. Holding panels in the evening and on weekends requires different working patterns; facili- tating the attendance of the diverse stakeholders presents difficulties of organization and timing; and finding appropriate venues challenges the extent to which panels are rooted in local community infrastructures. Moreover, administering panels creatively and flexibly often sits awk- wardly within a risk-averse professional culture. Nevertheless, there are strong political arguments for greater public involvement in criminal justice, especially youth justice, as a cultural restraint against more punitive policies. Public participation may challenge the presupposition in policy discourse that the public, at every turn, demands more punishment. Although broad opinion surveys in the United Kingdom often reveal a more punitive public, we need to distinguish between “public opinion” and “public judgment.” The former is impromptu, not informed by serious discussion or weighing the facts and the arguments of others. Neither is it followed by taking responsibility for the argued-for position. Public judgment incorporates all these character- istics. Research suggests that when provided with more information about offenders and the circumstances under which they offend, the public is more tolerant and less punitive than politicians would have us believe (Hough and Roberts, 1998). People tend to respond in more moderated and thoughtful ways to events and issues about which they are well informed or personally involved than those to which they are more abstractly connected. It is public judgment that volunteer involvement in panels seeks to enlist. \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 5 4-OCT-04 12:59 REACTION ESSAY 105 Certainly, the experience of the Youth Offender Panels is a testimony to the seriousness and thoughtfulness that lay people can bring to such forums and to the task of facilitating discussion. They may go a small way toward restoring the deliberative control of justice to citizens. Informed public debate and dialogue as a central aspect of criminal justice poten- tially allows for regulated ways in which people can deliberate on and search for ways of resolving conflict. By contrast, the punitive sentiments of public opinion may be the powerless expressions of a largely impassive audience observing a drama in which they have no role nor for which do they exercise active responsibility over any outcomes. The participation of ordinary citizens in the deliberative processes of criminal justice can also help to ensure that proceedings that may other- wise be dominated by technical, bureaucratic, or managerial demands also accord to the emotional and expressive needs of responses to crime. It can facilitate the “opening up” of otherwise introspective professional values, whereby practitioners are guided by detached and disinterested perform- ance standards, often of a kind that are more concerned with internal organizational priorities than with responsiveness to public interests. It can help break down inward-looking cultures and paternalistic attitudes held by professionals and, in their place, encourage responsiveness to the con- cerns articulated by citizens. Volunteers may also help to cement relations and encourage greater synergy between local formal and informal systems of control. Involving lay people potentially affords processes of restorative justice to operate through relations of interdependencies and mutual understanding. In so doing, it promotes the importance of local capacity. Lay participation may bring with it local knowledge and an attachment to “the affective and effective world of local affairs” (Shapiro, cited in Doran and Glen, 2000:10). REPRESENTATION This local knowledge can be a rich source for norm-clarifying and norm- reinforcing purposes. However, it implies that lay participants are genu- inely embedded in local interactions, interests, and normative orderings. The extent to which this is evident from the Youth Offender Panels remains uncertain. The pilots highlighted the practical difficulties of ensur- ing a representative composition of lay volunteers (Crawford and New- burn, 2002). Research conducted eight months after the national implementation of Referral Orders suggests that by the end of December 2002, there were 5,130 panel volunteers across England and Wales who had completed training and were sitting on panels, with a further 2,009 people awaiting \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 6 4-OCT-04 12:59 106 CRAWFORD training (Biermann and Moulton, 2003). The research also found that, despite an overrepresentation of women (65% of all volunteers), panel members broadly reflected the general population, as against recent cen- sus data (see Table 1). Certainly, panel volunteers are more representative of the population than lay magistrates, particularly with regard to age and ethnic origin. TABLE 1. THE REPRESENTATIVENESS OF PANEL VOLUNTEERS AND LAY MAGISTRATES AS AGAINST CENSUS DATA Census 2001 Youth Offender Panel Lay Magistrates Volunteers 2002 2001 Female 52% 65% 49% Under 40 35% 37% 4% 60-75 19% 12% 32% Black 2% 7% 2% Asian 4% 3% 3% Other non white 2% 1% 2% Unemployed 3% 3% N/A Source: Adapted from Biermann and Moulton (2003) If the role of community panel members is to reflect the profile and composition of the wider community, then YOSs appear to have done well to attract a representative group of volunteers. Naturally, there are impor- tant local variations.3 However, the research also highlighted the fact that YOS managers remained keen to attract a greater number of people from ethnic minority backgrounds and younger people, notably, young men. There are good reasons to suggest that the overrepresentation of volun- teers from these groups is consistent with the idea that volunteers should reflect those young people referred to panels. LEGITIMACY Research suggests that volunteers may be seen by young offenders, vic- tims, and parents as according legitimacy to the process by the very fact that they are not professionals (Crawford and Newburn, 2003). Commu- nity involvement can counter scepticism on the part of participants (nota- bly, offenders) that decision-makers are removed from their concerns and 3. For example, the percentage of black people sitting as panel members ranged from 0 to 62% across different YOSs. \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 7 4-OCT-04 12:59 REACTION ESSAY 107 understandings, precisely because of their professional attachments. Com- munity members at panel meetings often emphasize their sincerity in their concern for the welfare of the offender and the wider community. This is reinforced and given legitimacy through reference to their own status as volunteers, implying something unique and important about the voluntary participation of local citizens. These issues are significant in that, as Tyler (1990) suggests, people are more likely to comply with a regulatory order that they perceive to be procedurally just. There is some evidence emerging from the Australian research into the community conferencing initiative (RISE) in Canberra that citizens’ personal judgment that the law is moral may depend on their judgment that the human agents of the legal system have treated them with respect (Sherman et al., 2003). The more legitimacy that such agents can create, the more likely they are to impact positively on higher levels of future compliance with the law. Allied to this, there is some recent research in England to suggest that jurors had a more positive view of the jury system after completing jury service than they did before (Matthews et al., 2004). Not only did the experience enhance their confidence in the system, notably in terms of the fairness of the process, but it also increased their understanding of the criminal trial.4 Interestingly, the positive factors affecting confidence were the diversity of social and economic backgrounds of the jurors themselves and the fairness of the trial, including due process and respect for the rights of the defendants. CHALLENGES FOR LEGITIMACY Lay involvement also presents certain challenges for legitimacy. These by no means only relate to the involvement of nonprofessionals, but they also apply to criminal justice officials and legal authorities. First, despite implicit (or sometimes explicit) desires of government to use lay people as a cheaper alternative to established and costly professionals, lay involve- ment may not amount to a cost saving. Volunteers often introduce new costs and perceived “inefficiencies” into practices as well as frequently generating new workloads. Even though a system may be based on unpaid volunteers (such as boards and panels), of itself, this does not mean that it is necessarily cheap. There are significant costs associated with training, advice, and information provision for volunteers, as well as with other sup- porting infrastructures that are required simply because volunteers are involved. There is also a growing recognition that lay volunteers tend to work at a slower pace than do professional counterparts. This may itself be 4. Some 57% of jurors interviewed said that the most positive aspect of engaging in jury service was having a greater understanding of the criminal court trial. \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 8 4-OCT-04 12:59 108 CRAWFORD a positive outcome of lay involvement, in that they allow greater time and space for the human and deliberative aspects of restorative justice. How- ever, for governments keen to speed up justice and remove inefficiencies, such consequences of lay involvement may jar with wider managerialist goals. Second, as already mentioned, volunteer involvement raises questions regarding the representativeness of those involved. If lay involvement is intended to reflect the parties “peers” or the general citizenry, then this accords a significant import to their representative composition. Such questions of representation also affect professionals who may be seen to be out of step with ordinary people because they are unrepresentative or whose legitimacy is undermined by their lack of representativeness. How- ever, representation has a slightly different order of importance for lay people, whose primary justification for involvement may be their repre- sentativeness, as against professionals whose primary justification lies in their accountability and expertise: an amalgam of their specialistation, training, education, and professionalisation, which to a degree, sets them apart from the general citizenry. Third and more fundamentally, lay involvement may affront cherished notions of “nonpartisanship” that are key criteria in the legitimate exercise of power, particularly in criminal justice, both at a normative level and in terms of how justice is experienced by individuals. There is an ambiguity in that the more attached to the community lay panel members are, the less likely they are to hold the required “detached stance,” which constitutes a central value in establishing facilitator neutrality and legitimacy. The more that facilitators or panel members represent particular interests or value systems the greater the danger that the interests of one of the principal parties may become sidelined or lost altogether. Ironically, it is exactly this pressure to provide neutral and detached facilitators that increases the likelihood of professionalisation of lay panel members and the formalization of otherwise fluid and open restorative processes. Experience suggests that over time many schemes come to rely on a group of “core” staff who increasingly are seen as semiprofessionals by virtue of their work turnover, their training, and their experience. The early evidence from the Youth Offender Panel pilots suggests that a core group of panel members are increasingly relied on for much of the work. As a result, panel members may begin to look and behave more like “quasi-professionals” than ordinary lay people. In this context, lay volun- teers raise questions about the appropriate competencies and skills that particular personnel should have in delivering a given service and, hence, about the nature and quality of the service to be delivered, as well as the accountability of volunteers and panel outcomes. Lay-connectedness also raises issues regarding potential conflicts of \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 9 4-OCT-04 12:59 REACTION ESSAY 109 interest. Herein lies an inherent tension. On the one hand, the intention is for the social distance between panel members and participants to be reduced, but on the other hand, it is undesirable for justice to be compro- mised by prior personal relations. The experience from Youth Offender Panels is that the civilians themselves preferred not to work in areas where they lived or knew people too well. As well as concerns for personal safety and reprisals, this was often explained in terms of the inappropriateness of exerting power and authority over those with whom they have close social relationships. Both psychologically and normatively to do so would con- flict with justice. The ambiguous evidence with regard to the role of lay people at the heart of criminal justice responses highlights the need for greater public policy attention to the normative principles, purposes, and practical impli- cations of community involvement. As Karp and Drakulich’s research admirably shows, there is still much to learn about the benefits and limits to the role of volunteers and lay people in criminal justice processes. Also, considerable scope remains for justice to be a more deliberative process in contrast to both the “professional justice of lawyers” and the managerialist understanding of “justice as efficiency.” Constructively engaging the pub- lic in ways that provide an investment in, and understanding of, justice remains a central public policy challenge. REFERENCES Biermann, Fiona and Abigail Moulton 2003 Youth Offender Panel Volunteers in England and Wales. Online Report 34/ 03. London: Home Office. Crawford, Adam and Tim Newburn 2002 Recent developments in restorative justice for young people in England and Wales: Community participation and representation. British Journal of Criminology 42:476–495. 2003 Youth Offending and Restorative Justice. Cullompton: Willan. Doran, Sean and Ruth Glenn 2000 Lay Involvement in Adjudication. Belfast: The Stationary Office. Home Office 1997 No More Excuses. London: Home Office. Hough, Mike and Julian V. Roberts 1998 Attitudes to Punishment: Findings from the 1996 British Crime Survey, HORS 179. London: Home Office. Matthews, Roger, Lynn Hancock, and Daniel Briggs 2004 Jurors’ Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts. Online Report 05/04. London: Home Office. Newburn, Tim, Adam Crawford, Rod Earle, Shelagh Goldie, Chris Hale, Guy Masters, Ann Netten, Robin Saunders, Angela Hallam, Karen Sharpe, and Steve Uglow \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 10 4-OCT-04 12:59 110 CRAWFORD 2002 The Introduction of Referral Orders into the Youth Justice System, HORS 242. London: Home Office. Raine, John W. 2000 Whither Local Justice? Criminal Justice Matters 40:19–20. Sherman, Lawrence W., Heather Strang, and Daniel J. Woods 2003 Captains of restorative justice: Experience, legitimacy and recidivism by type of offence. In Elmar G. M. Weitekamp, and Hans-Jürgen Kerner (eds.), Restorative Justice in Context. Cullompton: Willan. Tyler, Tom R. 1990 Why People Obey the Law. New Haven, Conn.: Yale. Adam Crawford is Professor of Criminology and Criminal Justice at the Centre for Criminal Justice Studies, University of Leeds, U.K. His most recent books include The Local Governance of Crime; Crime Prevention and Community Safety; Integrating a Vic- tim Perspective within Criminal Justice; Crime and Insecurity: The Governance of Safety in Europe; and Youth Offending and Restorative Justice (with Tim Newburn). He has published extensively in a variety of peer-reviewed journals on matters of youth justice, criminal justice policy, policing, community safety, and restorative justice. He has worked for the New Zealand Ministry of Justice, the French Ministry of the Interior, the Northern Ireland Office, and the Home Office on matters of community safety and restorative justice. He is currently writing a book on shifting relations between public and private policing for Oxford University Press with his colleague Stuart Lister. He has recently been awarded a Leverhulme Trust Major Research Fellowship to conduct research into the contractual governance of deviant behavior which will be published as a book by Cambridge University Press. \\server05\productn\C\CPP\3-4\CPP401.txt unknown Seq: 11 4-OCT-04 12:59 REACTION ESSAY 111 
work_uipvi2bh5zd5do7xtwnmwvutsm	----	Microsoft Word - Probation, Credibility and Justice _final_ McNeill, F. (2011) Probation, credibility and justice. Probation Journal, 58 (1). pp. 9-22. ISSN 0264-5505 http://eprints.gla.ac.uk/43320/ Deposited on: 15th February 2012 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk http://eprints.gla.ac.uk/view/author/5345.html http://eprints.gla.ac.uk/view/journal_volume/Probation_Journal.html Forthcoming (2011) in Probation Journal Probation, Credibility and Justice1 Abstract This paper explores the difficulties that arise for probation agencies or those that deliver community sanctions in developing and maintaining their credibility in prevailing ‘late-modern’ social conditions. It begins by questioning the limits of the pursuit and promise of ‘public protection’ as a source of credibility, and then proceeds to examine the emergence of an alternative strategy – based principally on reparation and ‘payback’ – in Scotland, arguing that these Scottish developments have much to say to the emerging debates in England and Wales (and elsewhere) about the ‘rehabilitation revolution’ and the proper use of imprisonment. The paper provides a critical account of the development and meaning of the Scottish version of ‘payback’, linking it to some important philosophical and empirical studies that may help to steer the development of payback away from a ‘merely punitive’ drift. In the conclusion, I argue that probation agencies and services need to engage much more deeply and urgently with their roles as justice services, rather than as ‘mere’ crime reduction agencies. Introduction: Community Sanctions in Times of Insecurity The times in which we live are tough times for community sanctions2. Historically, probation services in most jurisdictions have been preoccupied with the pursuit of rehabilitation – although the forms and functions of rehabilitation have changed in probation’s different eras and in the different places where it has developed (McNeill, Bracken and Clarke, 2010). One important and helpful analytical distinction that can be made about rehabilitation concerns whether it is considered as an end in itself or as a means to another end. The French expression ‘rétablir dans ses droits’ captures well the notion of rehabilitation as moral purpose that we should pursue in its own right – that end being the full restoration to the formerly errant citizen of all of his rights (and responsibilities) (see Lewis, 2005). By contrast, contemporary penologists argue that in recent decades rehabilitation has been recast, particularly in the English-speaking world, not as an end but as a means or a mechanism for reducing crime (for example, see Garland, 2001). Such analyses tend to locate these developments within accounts of broader social changes associated with late or post-modernity. As Zygmunt Bauman (1997) has famously observed, the fundamental discontents of post-modern societies rest in their sacrifice of collective securities for individual freedoms. For penologists, the argument usually runs along the line that as social life has become more atomised, more individualised, more preoccupied with uncertainties and risks – basically more insecure – people have become more eager to look after themselves and their own and less tolerant of anyone cast as an alien, an outsider, a threat. Within this context, it is no surprise that public protection has become a key priority and even a ‘meta-narrative’ for probation in some jurisdictions (see, for example, Robinson and McNeill’s (2004) discussion of England and Wales and Scotland). Nonetheless, there are good reasons for 1 This paper is a written version of a speech delivered at a conference in Belgium which celebrated 10 years of the Maisons de Justice. That speech drew heavily on two earlier papers published in the European Journal of Probation (McNeill, 2009a) and in the Irish Probation Journal (McNeill, 2009b) I am grateful to the editors of both journals for permission to re-use some of this material here. 2 The Council of Europe defines Community Sanctions and Measures (CSM) thus: ‘sanctions and measures which maintain the offender in the community and involve some restriction of his/her liberty through the imposition of conditions and/or obligations, and which are implemented by bodies designated in law for that purpose’. The term designates any sanction imposed by a court or a judge, and any measure taken before or instead of a decision on a sanction as well as ways of enforcing a sentence of imprisonment outside a prison establishment’ (Rec. (92)16 on the European Rules on Community Sanctions and Measures). When I refer to ‘probation’ in this paper, I am referring not to the specific probation order but to CSM in general. having reservations about the term. To talk of protection seems to make sense in times of insecurity; perhaps probation’s political position and its claims on public resources can be best legitimated by promising to manage and reduce risks and thus to enhance security. Certainly at a time when offenders are increasingly vilified, this might seem a safer pitch for probation than its traditional sympathy for and commitment to the offender. However, there is a paradox at the heart of protection and there are risks with risk. Whenever the promise to protect is made, the existence of a threat is confirmed and fear is legitimised and reinforced (Douglas, 1992). Similarly, when probation commits itself to the assessment and management of risks, it exposes itself not to the likelihood of failure, but to its inevitability. Not all risks are predictable and not all harms are preventable. Even being excellent at assessing and managing risks most of the time -- assuming that this could be achieved -- would not protect probation from occasional, spectacular failures and the political costs that they carry (Robinson and McNeill, 2004). A further related problem with public protection is that it tends to dichotomise the interests of offenders and the interests of victims and communities in a zero-sum game (McCulloch and McNeill, 2007). It becomes not just a case of protecting ‘us’ from ‘them’, but a case of setting our safeties and liberties against theirs. For probation, this dichotomisation leads to a public and political pressure for more secure – for which we might read incapacitating – forms of control that serve, at least in the short term, to re-assure an anxious public. Probation’s traditional mechanisms for generating protection or security are to be found in the support of long-term change processes. But these rehabilitative processes provide relatively little security and little reassurance in the short-term. So although changed ex-offenders who have internalised and committed to the responsibilities of citizenship offer a better prospect for a safer society in the long term, change programmes and services look somewhat feeble when set against the increasingly threatening offender that communities are taught to fear. Leaving aside these political problems, there are other ethical and practical issues occasioned by the dominance of public protection. When probation accepts the lure of risk management and public protection, it preoccupies itself with things that may happen, with the offender's future behaviour, with potential victims and with the future impacts on communities of offending. There is a danger that the more that we preoccupy ourselves with these imaginaries, the less we concern ourselves with the real victims, real offenders and real communities that are with us now. Moreover, although clearly it can be argued that it is necessary for probation services to ask and answer the question of what works in reducing reoffending and protecting the public, it is not sufficient. Probation services are not merely crime reduction agencies; they are justice agencies. As Herbert Packer (1993) observed, the pursuit of crime control stands in tension with questions of justice, due process and legitimacy; the rush towards crime control can compromise the pursuit of justice – social as well as criminal – especially when intense political pressure is brought to bear on the system3. In this respect it is important to recognise the vital role that probation services play not just in rehabilitation for crime reduction but in enabling constructive reparation by offenders – enabling them to pay back for their crimes. At the same time, and with social justice in mind, probation services retain an important role in advocating for offenders so that they can access the social goods and resources which so often they have been denied. Of course, it is inequality and the social injustice that it represents that so often underlies not just crime and offending but a host of other social problems (Wilkinson, 2005; Wilkinson and Pickett, 2009). Against this backdrop, this paper aims to explore a central question for contemporary community sanctions agencies or probation services in any jurisdiction. In these tough times, is 3 See, for example, Tony Blair’s (in)famous speech on ‘rebalancing the criminal justice system’, 23 rd June, 2006: http://www.guardian.co.uk/politics/2006/jun/23/immigrationpolicy.ukcrime1 the pursuit of effective crime reduction the only or best way to enhance the credibility of such agencies and services – or might it be better to prioritise the pursuit of a more constructive form of justice itself? Scottish Community Sanctions: Problems and possibilities? In trying to answer this question, it is instructive to reflect upon the Scottish experience of developing community sanctions – and to connect this experience to emerging debates in England and Wales about the ‘rehabilitation revolution’ and current debates there about the uses and abuses of short prison sentences. I have written elsewhere in some detail about the history of probation and criminal justice social work in Scotland (McNeill, 2005; McNeill and Whyte, 2007). In one sense, this is a story about the evolution of well-intentioned efforts to champion and to develop sensitive and credible alternatives to imprisonment. For example, one of Scotland’s earliest probation schemes began in Glasgow in 1905 because of a serious concern about the numbers of Glaswegians being imprisoned for fine default. As a history of probation’s first 50 years in Glasgow puts it, ‘in view of the admittedly demoralising influence of imprisonment, the serious consideration of all was demanded concerning the welfare of the community’ (City of Glasgow 1955: 9). What is interesting about this quote, perhaps in contrast with the discontents of post-modernity referred to above, is its explicit recognition of the fact that the adverse effects of imprisonment on those who suffered it (that is, its literally de-moralising effects) were seen as constituting a threat to the welfare of the whole community. In many respects the quote evidences Glasgow’s traditionally collectivist, corporate political and civic culture. To harm any part of the ‘body corporate’ was to harm the whole. Although Scottish probation subsequently moved through various reformulations, when at the end of the 1960s Scotland integrated probation within social work services and created its distinctive system of Children’s Hearings, these developments evidenced an enduring commitment to welfarism – to the recognition of the social context of crime problems and to the role of social educational approaches to resolving them (McNeill and Whyte, 2007). That said, an unintended consequence of the development of generic social work departments was the neglect of probation work, and decline in the use of probation reflected below in Figure 1: Figure 1: The use of community sanctions in Scotland, 1932-2006 0 1000 2000 3000 4000 5000 6000 7000 8000 9000 1932 1945 1951 1959 1971 1977 1985 1995 1999 2003 2005 Probation Community service 950 juveniles 2,600 juveniles Children's Hearings introduced Impact of National Standards To address this neglect and decline, and under political pressures generated by prison riots and suicides thought to be related to overcrowding, the Scottish Office (then a department of the UK Government) in 1991 introduced ring-fenced funding and national standards for criminal justice social work services (SWSG, 1991). These mechanisms were aimed at enhancing the effectiveness, the credibility and the use of community sanctions in order to reduce the unnecessary use of custody. Figure 1 provides apparent evidence of the success of this initiative, showing a steep rise in the number of probation orders, as well as the successful introduction of community service. More recent figures suggest that around 20,000 community sanctions of various sorts were imposed in Scotland in 2008-094; that is about ten times as many community sanctions as were imposed in 1932. However, this ‘success’ is, in one very important sense, illusory – because Scotland’s prison population has continued to rise. It now stands at about 8,000 prisoners (over 150 per 100,000), having been at less than 5,000 when the national standards were introduced in 1991 (and less than 2,000 in the 1930s). The explanation for this apparent paradox is complex (see McAra, 2008; Scottish Prisons Commission, 2008), but it is clear that the increasing numbers of supervised community sanctions have displaced not prison sentences but financial penalties, thus contributing to a ‘dispersal of discipline’, increasing rather than reducing the carceral reach of the state (McNeill and Whyte, 2007). For the present purposes, perhaps the most important point to grasp is that Scottish community sanctions certainly became more credible, probably became more effective (see Paterson and Tombs, 1998), but manifestly failed to significantly impact on the use of imprisonment; indeed, since such sanctions often bring with them increased risks of default and potential net-widening effects, they may have contributed to the growth of imprisonment (see Scottish Prisons Commission, 2008). This continuing prison growth motivated the Cabinet Secretary for Justice in 2007 to appoint a Scottish Prisons Commission to examine the proper use of imprisonment in Scotland. The Commission was chaired by Henry McLeish, a former Minister for Home and Health in the Scottish Office (pre-devolution) and later a First Minister of Scotland. The Commission’s report, ‘Scotland’s Choice’ (often referred to as the McLeish report), was published in July 2008. The key conclusion and central recommendations of the report are these: ‘The evidence that we have reviewed leads us to the conclusion that to use imprisonment wisely is to target it where it can be most effective - in punishing serious crime and protecting the public. 1. To better target imprisonment and make it more effective, the Commission recommends that imprisonment should be reserved for people whose offences are so serious that no other form of punishment will do and for those who pose a significant threat of serious harm to the public. 2. To move beyond our reliance on imprisonment as a means of punishing offenders, the Commission recommends that paying back in the community should become the default position in dealing with less serious offenders’ (Scottish Prisons Commission, 2008: 3, emphasis added). The idea that a parsimonious approach to imprisonment in particular and punishment in general should prevail is not novel. However, the Commission’s remedy for Scotland’s over- consumption of imprisonment was innovative in some respects. Specifically, the Commission proposed a range of measures that it considered necessary to enact their second 4 See http://openscotland.net/Publications/2008/12/09091001/2, accessed 25/02/2010. recommendation and make ‘paying back in the community’ the ‘default position’ for less serious offenders. Although Scotland’s penal history should lead us to question the extent to which the development of sentencing options changes sentencing practices, many of these measures speak directly to the nature, forms and functions of community sanctions – and particularly to their credibility. Leaving aside the Commission’s equally interesting and important recommendations around resettlement aside on this occasion, their report seeks to recast both court-based social work services and ‘front-door’ community sanctions around the concept of ‘payback’, which it defines as follows: ‘In essence, payback means finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community. This might be through financial payment, unpaid work, engaging in rehabilitative work or some combination of these and other approaches. Ultimately, one of the best ways for offenders to pay back is by turning their lives around’ (Scottish Prisons Commission, 2008: 3.28, emphasis added). Several ways of paying back are identified here and elsewhere in the report – through restorative justice practices, through financial penalties, through unpaid work, through restriction of liberty (meaning in this context electronically monitored curfews) and, perhaps most interestingly in this context, through ‘paying back by working at change’. Working at change in turn is linked to engagement in a wide range of activities that might seem likely to address the issues underlying offending behaviour (drug and alcohol issues, money or housing problems, peer group and attitudinal issues, family difficulties, mental health problems and so on). The report also recognises the need for offenders to opt-in to rehabilitative modes of reparation; their consent is required for both practical and ethical reasons. In setting out a process for paying back, the Commission’s report suggests a three-stage approach to sentencing. In stage one, the judge makes a judgement about the level of penalty required by the offence with information from the prosecutor and the defence agent. By implication, this is no business of social work, no business of probation; rather, it is a legal judgement about the appropriate level of penalty. But stage two considers what kind of payback, what form of reparation, is appropriate and this requires a dialogue not just between the judge and the court social worker, but one that actively engages the offender too. Most importantly for present purposes and with respect to both judicial and public credibility, stage three involves checking up on the progress of paying back; here, the report proposes the establishment of a particular kind of ‘progress court’ where judges who are specially trained to understand issues around compliance and around desistance from crime would have mechanisms at their disposal for handling setbacks and lapses without undue recourse to custody. This court would also have the power to reward compliance and positive progress through early discharge or the lightening of restrictions. Clearly this model owes much to the development of problem solving courts in many jurisdictions (see McIvor, 2009). Though the Scottish Government accepted most of the recommendations contained in ‘Scotland’s Choice’, the subsequent legislative measure – the Criminal Justice and Licensing Act 2010 – is much less radical than the Commission’s report. That said, it does include provisions to establish a presumption against short-term prison sentences (of less than 3 months), a Scottish Sentencing Council (to promote consistency, develop policy and improve public understanding of sentencing), and new Community Payback Orders (CPOs). These orders effectively replace a range of community sanctions (including probation and community service) with a single order, in respect of which judges can choose from a range of conditions relating to supervision, residence, compensation, programmes, unpaid work, drug treatment, alcohol treatment, mental health treatment and conduct. Though this menu is similar to that which applies to community orders and suspended sentence orders in England and Wales, perhaps the key difference rests in the title of the order. The Scottish Government seems to have signalled its acceptance of reparation or payback as the defining purpose of community sanctions and measures. Payback, Public Opinion and Credibility Returning to the question of credibility, around the time of the publication of ‘Scotland’s Choice’, the UK Government published a report on ‘Engaging Communities in Fighting Crime’, written by Louise Casey. Casey’s report sought solutions to perceived problems of public confidence in criminal justice in general and community sanctions in particular. The research evidence about public attitudes to punishment and to probation is, in some respects, complex (see Allen and Hough, 2007). First of all, there is no public opinion; there are different opinions from different members of the public; different opinions from the same people depending on what you ask them, how you ask them, what mood they are in and, probably, what has happened to them in the last 24 hours. Despite the broader context of insecurity alluded to above, there is evidence that it is something of a myth to suggest that ‘the public’ are universally punitive in response to offenders. Though most people tend to say that sentences are too lenient, if they are provided with case histories and then asked to suggest a sentence, they tend to sentence similarly to or more leniently than real judges. With regard to community sanctions, ignorance is a fundamental problem. The most recent British Crime Survey (Jansson, 2008), for example, suggests that only 20 percent of people surveyed thought that probation in England and Wales was doing a good job. Allen and Hough (2007: 565) sum up the problem by quoting a focus group respondent who said simply: ‘I don't think probation means anything to many people’. This is a common finding in many jurisdictions; people don't really know what probation is, they don't know what it involves, they don't understand what it is trying to achieve. Given this, problems of credibility and public support seem inevitable. Casey’s solution was another re-branding of community service, this time as ‘community payback’. But Casey’s concept of payback is quite different from the Scottish Prisons Commission’s; it centres on making community service more visible and more demanding. She suggests that it should not be something the general public would chose to do themselves (in other words, it should be painful or punishing) and that offenders doing payback should wear bibs identifying them as such (in other words that it should be shaming). Contrast these suggestions with the following statements from the Scottish Prisons Commission’s report: ‘…it is neither possible nor ethical to force people to change. But we are clear that if people refuse to pay back for their crimes, they must face the consequences’ (Scottish Prisons Commission, 2008: paragraph 3.31b) ‘The public have a right to know – routinely – how much has been paid back and in what ways. This does not and should not mean stigmatising offenders as they go about paying back; to do so would be counter-productive. But it does and should mean that much greater effort goes into communication with the communities in which payback takes place’ (Scottish Prisons Commission, 2008: paragraph 3.31c) In a recent paper in this journal exploring the available research evidence about public attitudes to probation in the light of Casey’s recommendations, Maruna and King (2008: 347) come to the following conclusion: ‘Casey is absolutely right to utilise emotive appeals to the public in order to increase public confidence in the criminal justice system. Justice is, at its heart, an emotional, symbolic process, not simply a matter of effectiveness and efficiency. However, if Casey’s purpose was to increase confidence in community interventions, then she drew on the exact wrong emotions. Desires for revenge and retribution, anger, bitterness and moral indignation are powerful emotive forces, but they do not raise confidence in probation work -- just the opposite. To do that, one would want to tap in to other, equally cherished, emotive values, such as the widely shared belief in redemption, the need for second chances, and beliefs that all people can change.’ It is particularly interesting in this context to note that those who might be expected to be most angry and even vengeful in their emotive responses to offenders – crime victims – often seem able to draw on some of these more positive and cherished values. The recently published evaluation of restorative justice schemes in England evidenced this very clearly, though the findings are consistent with many earlier studies of victims’ views and wishes: ‘In approximately four-fifths of the conferences [n=346] that we observed, offenders’ problems and strategies to prevent reoffending were discussed, whilst discussion of financial or direct reparation to the victim was rare... This was not because victims or their wishes were ignored but rather because victims, in common with other participants, actively wished to focus on addressing the offenders’ problems and so minimizing the chance of reoffending. In pre-conference interviews... 72 per cent of victims said it was very or quite important to them to help the offender’ (Robinson and Shapland, 2008: 341, emphasis added). So, while Casey-style payback (at least as she appears to have intended it, if not as some services have developed it in practice) may leave some of us with grave reservations, McLeish’s concept of ‘paying back by working at change’ seems to have strong resonance, not just with probation’s rehabilitative origins and affiliations, but with what many victims want from justice processes. So it may be that, from many victims’ perspectives, credibility is not a product of the ‘punitive bite’ of a sanction but rests instead on a process that invites and invokes constructive changes. With questions of wider public (and political credibility in mind), it is important to note here that, while this may sound ‘liberal’, in point of fact engaging in these kinds of efforts is something that offenders often find harder than undergoing ‘mere’ punishment (see May and Wood, 2010). But even if it does hurt, there is at least some empirical evidence that paying back (or making good) through working at change is something that many offenders want and need to do in and through the process of desistance. No summary of this evidence can be offered here (see Farrall and Calverley, 2005; McNeill, 2009c; Maruna, 2001), but some of the implications for the delivery of community sanctions are emerging. Firstly, since desistance is an inherently individualised and subjective process, approaches to community sanctions must accommodate and exploit issues of identity and diversity. One-size- fits-all interventions will not work. Secondly, the development and maintenance not just of motivation but also of hope become key tasks for probation workers. Thirdly, desistance can only be understood within the context of human relationships; not just relationships between workers and offenders (though these matter a great deal) but also between offenders and those who matter to them. Fourth, although practice tends to focus on offenders’ risk and needs, they also have strengths and resources that they can use to overcome obstacles to desistance – both personal strengths and resources and strengths and resources in their social networks. Practice should support and develop these capacities. Fifth, since desistance is about discovering agency, interventions need to encourage and respect self-determination; this means working with offenders not on them. Sixth, interventions based only on human capital – what a Dutch colleague recently described to me as ‘between the ears’ interventions – will not be enough. Probation needs to work on social capital issues with communities and offenders – it needs to work ‘beyond the ears’ if you will. Though they are derived from empirical evidence, in one way or another all of these prescriptions from desistance research involve treating people humanely and fairly; in other words, they point to the ethical dimensions of practice. More specifically, they connect to the moral legitimacy that might underpin efforts to influence another human being’s choices and behaviours. As I have argued elsewhere (McNeill, 2006), a case can certainly be made that desistance research makes a necessity out of certain practice virtues. To be effective in reducing crime it seems, the practitioner of community sanctions needs first to be just, since any perception of injustice, unfairness or illegitimacy will necessarily undermine the credibility of the ‘change agent’. Moving Forward: Alternatives to Punishment and/or Alternative Punishments? Questions of justice and punishment are linked, but historically, in many jurisdictions, probation and criminal justice social workers have tended to consider themselves as providers and advocates of (usually rehabilitative) alternatives to punishment, rather than as providers and advocates of alternative punishments. Though probation in England and Wales was compelled to face up to these issues more than a decade ago, in many jurisdictions it remains the case that for practitioners the notion of punishing, as opposed to supporting, supervising, treating or helping – or even challenging and confronting – seems inimical to the ethos, values and traditions of probation and social work. Certainly, that was once my view, but now I am not so sure. The penal philosopher Antony Duff (2001) has argued convincingly that we can and should distinguish between ‘constructive punishment’ and ‘merely punitive punishment’. Constructive punishment can and does involve the intentional infliction of pains but only in so far as this is an inevitable and intended consequence of ‘bringing offenders to face up to the effects and implications of their crimes, to rehabilitate them and to secure… reparation and reconciliation’ (Duff, 2003: 181). We both want and need people to feel the pains of remorse, since there is no such thing as painless remorse. This seems very close in some respects to the ideas of challenging and confronting offending which have become widely accepted in probation work in recent years, partly in response to political pressures to get tough but also, more positively, in response to the legitimate concerns of crime victims that their experiences should be taken more seriously. These ‘pains of remorse’ are not an accidental or consequential feature of challenging and changing behaviour; rather, they are constitutive of and central to the change process as a moral process (see also Bennett, 2008). But Duff’s work also helps us with a second problem, since he recognises, as I have already noted and as probation and social workers have understood for decades, that where social injustice is implicated in the genesis of offending, the infliction of punishment (even constructive punishment) by the state is rendered morally problematic, because the state is often itself complicit in criminogenesis (crime-generating) through having failed in its prior duties to the ‘offender’. For this reason, Duff suggests that probation officers or social workers should play a pivotal role in mediating between the offender and the wider polity, holding each one to account on behalf of the other. Again, this discomfiting space is one which many probation and social workers will recognise that they occupy and through which, with or without official or public support, they seek to promote social justice within criminal justice. It may be therefore that Duff’s work provides some of the conceptual resources with which to populate the concept of payback constructively. To the extent that the new centrality of reparation compels criminal justice social work to engage in punishing offenders, his notion of constructive punishment and his insistence on the links between social justice and criminal justice might help to buttress the Scottish social work version of payback from drifting in a ‘merely punitive’ direction. There are other sources that probation services could also draw upon usefully here. Shadd Maruna’s (2001) ‘Making Good’ is one important desistance study that reveals the importance for ex-offenders of ‘making good’, and of having their efforts to do so recognised. In a sense, the relevance of the concept of ‘generativity’ – referring to the human need to make some positive contribution, often to the next generation – hints at the links between paying back and paying forward, in the sense of making something good (for others) out of one’s own damaged and damaging past (see McNeill and Maruna, 2007). Bazemore’s (1998) work on ‘earned redemption’ examines more directly the tensions and synergies between reform and reparation, and the broader movements around ‘relational justice’ (Burnside and Baker, 1994/2004) and restorative justice (Johnstone and Van Ness, 2007) provide possible normative frameworks within which to further debate and develop these tensions and synergies. Clearly these questions would bear much closer examination that now seems necessary but is beyond the scope of this paper. But in terms of the practical applications for probation, these ideas and developments evoke Martin Davies’s (1981) notion of probation as a mediating institution. This can be understood in two ways. Firstly, probation mediates between the sometimes conflicting purposes of punishment – between retribution (but not of the merely punitive kind), reparation and rehabilitation. But equally probation mediates between the stakeholders in justice -- between courts, communities, victims and offenders, much in the manner that Duff (2003) suggests. Conclusions This paper began by noting that we live and work in times of insecurity. Perhaps insufficient time was spent building the argument that insecurity and punitiveness are closely related, but such an argument is probably not difficult to construct (see Bauman, 2000; Garland, 2001). Certainly it is clear that punitiveness squeezes the ‘space’ for community sanctions and measures in any justice system and strikes at the heart of their credibility. Arguably a key danger at this particular moment in the UK, with the combination of excitement and cynicism about the ‘rehabilitation revolution’ growing, is that a continued focus on reducing reoffending may lead to neglect of the recognition that justice systems are not only and perhaps not primarily concerned with reducing crime; to think that they are is to miss the point that crime reduction is but one amongst several purposes and functions that such systems serve (see Tonry, 2006). It follows from this that the delivery of effective crime reduction (or of public protection) is not the only key to the credibility of community sanctions. Rather, we need to think much harder about the role of community sanctions agencies not narrowly as crime reduction agencies but more broadly as justice agencies. Though in this paper I have done no more than the raise some questions and interpret some historical lessons about the struggle for credibility, the plug for the late-modern credibility gap might be found in working harder to deliver and communicate sanctions that sentencers, offenders, victims and communities can understand as and feel to be constructive justice, rather than ‘mere’ crime control. Perhaps most practically, this invites probation agencies and practitioners to engage again with the legal, moral and psychological legitimacy of their relationships not just with offenders, but also with these other core constituencies (see McNeill and Robinson, forthcoming). The National Offender Management Service in England and Wales has wisely embarked on an ‘Offender Engagement Programme’; perhaps for NOMS and other probation agencies, similar initiatives are required for probation’s other ‘audiences’. References Allen, R. and Hough, M. (2007) ‘Community penalties, sentencers, the Media and Public Opinion’, in L. Gelsthorpe and R. Morgan (eds.) The Handbook of Probation. Cullompton: Willan. Bauman, Z. (1997) Postmodernity and Its Discontents. Cambridge: Polity Press. Bauman, Z. (2000) ‘Social Issues of Law and Order’, British Journal of Criminology 40(2): 205–21. Bazemore, G. (1998) ‘Restorative justice and earned redemption: communities, victims, and offender reintegration’ American Behavioral Scientist, 41(6): 768-813. Bennett, C. (2008) The Apology Ritual. Cambridge: Cambridge University Press. Burnside, J. and Baker, N. (eds.)(1994/2004) Relational Justice: Repairing the Breach. Winchester: Waterside Press. City of Glasgow (1955) Probation. A Brief Survey of Fifty Years of the Probation Service of the City of Glasgow 1905–1955. Glasgow: City of Glasgow Probation Davies, M. (1981) The Essential Social Worker. Aldershot: Ashgate. Douglas, M. (1992) Risk and Blame: Essays in Cultural Theory. London: Routledge. Duff, A. (2001) Punishment, Communication and Community. New York: Oxford University Press. Duff, A. (2003) ‘Probation, Punishment and Restorative Justice: Should Altruism Be Engaged in Punishment?’, The Howard Journal 42(1): 181–97. Farrall, S. and Calverley, A. (2005) Understanding Desistance from Crime. Maidenhead: Open University Press. Garland, D. (2001) The Culture of Control. Oxford: Oxford University Press. Johnstone, G. and Van Ness, D. (eds.)(2007) The Handbook of Restorative Justice. Cullompton: Willan. Jansson, K. (2008) British Crime Survey: Measuring Crime for 25 Years. London: Home Office. Lewis, S. (2005) ‘Rehabilitation: Headline or Footnote in the New Penal Policy’, Probation Journal 52(2): 119–35. McCulloch, P. and McNeill, F. (2007) ‘Consumer Society, Commodification and Offender Management’ Criminology and Criminal Justice, 7(3): 223-242 McIvor, G. (2009) ‘Therapeutic jurisprudence and procedural justice in Scottish Drug Courts’ Criminology and Criminal Justice 9(1): 29-49. McAra, L. (2008) ‘Crime, Criminology and Criminal Justice in Scotland’ European Journal of Criminology 2008; 5(4) 481-504. McNeill, F. (2005) ‘Remembering probation in Scotland’ Probation Journal 52(1): 25-40. McNeill, F. (2006) ‘A desistance paradigm for offender management’ Criminology and Criminal Justice 6(1): 39-62. McNeill, F. (2009a) ‘What Works and What’s Right’ European Journal of Probation 1(1):21-40. McNeill, F. (2009b) ‘Probation, Rehabilitation and Reparation’ Irish Probation Journal 6: 5-22. McNeill, F. (2009c) Towards Effective Practice in Offender Supervision. Glasgow: Scottish Centre for Crime and Justice Research, available at: http://www.sccjr.ac.uk/documents/McNeil_Towards.pdf McNeill, F., Bracken, D. and Clarke, A. (2010) ‘Social Work and Criminal Justice’ in I. Shaw, K. Briar-Lawson, J. Orme, and R. Ruckdeschel (eds.) The Sage Handbook of Social Work Research, London and New York: Sage. McNeill, F. and Maruna, S. (2007) ‘Giving Up and Giving Back: Desistance, Generativity and Social Work with Offenders’ in McIvor, G. and Raynor, P. (eds.) Developments in Social Work with Offenders. Research Highlights in Social Work 48. London: Jessica Kingsley. McNeill, F. and Robinson, G. (forthcoming) Liquid Legitimacy and Community Sanctions’, in Crawford, A. and Hucklesby, A. (eds.) Legitimacy and Compliance in Criminal Justice. Cullompton: Willan. McNeill, F. and Whyte, B. (2007) Reducing Reoffending: Social Work and Community Justice in Scotland. Cullompton: Willan. Maruna, S. (2001) Making Good. Washington, DC: American Psychological Association. Maruna, S. and King, A. (2008) ‘Selling the Public on Probation: Beyond the Bib’ Probation Journal 55(4): 337-351. May, D. and Wood, P. (2010) Ranking Correctional Punishments: Views from offenders, practitioners and the public. Durham, North Carolina, Carolina Academic Press. . Packer, H. (1993) The Limits of the Criminal Sanction. Sage: New York. Paterson, F. and Tombs, J. (1998) Social Work and Criminal Justice. Volume 1: The Impact of Policy. Edinburgh: The Stationery Office. Scottish Prisons Commission (2008) Scotland’s Choice. Edinburgh: Scottish Prisons Commission. Social Work Services Group (1991) National Objectives and Standards for Social Work Services in the Criminal Justice System. Edinburgh: Scottish Office Social Work Services Group. Robinson, G. and McNeill, F. (2004) ‘Purposes Matters: The Ends of Probation’, in G. Mair (ed.) What Matters in Probation Work. Cullompton: Willan Robinson, G. and Shapland, J. (2008) ‘Reducing Recidivism: A Task for Restorative Justice?’ British Journal of Criminology 48(3): 337-358. Tonry, M. (2006) ‘Purposes and Functions of Sentencing’ in Tonry, M. (ed.) Crime and Justice: A Review of Research, 34: 1-53. Chicago: University of Chicago Press. Wilkinson, R. (2005) The Impact of Inequality: How to Make Sick Societies Healthier. London: Routledge. Wilkinson R. and Pickett, K. (2009) The Spirit Level: why more equal societies almost always do better. London: Penguin - Allen Lane. CoversheetEnlighten.pdf http://eprints.gla.ac.uk/43320/ 
work_ukdabjtljvhgpbetueeupzwrpe	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_ukmozdlwrze7fo3z3c4dqd5y34	----	The Double Nature of DNA – Reevaluating the Common Heritage Idea This is the pre-print of the following article: Queloz, Matthieu (2017), “Nietzsche’s Pragmatic Genealogy of Justice,” in British Journal for the History of Philosophy. DOI: 10.1080/09608788.2016.1266462. Nietzsche’s Pragmatic Genealogy of Justice matthieu queloz Philosophy, University of Basel This paper analyses the connection between Nietzsche’s early employment of the genealogical method and contemporary neo-pragmatism. The paper has two goals. On the one hand, by viewing Nietzsche’s writings in the light of neo-pragmatist ideas and reconstructing his approach to justice as a pragmatic genealogy, it seeks to bring out an under-appreciated aspect of his genealogical method which illustrates how genealogy can be used to vindicate rather than to subvert and accounts for Nietzsche’s lack of historical references. On the other hand, by highlighting what Nietzsche has to offer neo-pragmatism, it seeks to contribute to neo-pragmatism’s conception of genealogy. The paper argues that Nietzsche and the neo-pragmatists share a naturalistic concern and a pragmatist strategy in responding to it. The paper then shows that Nietzsche avoids a reductive form of functionalism by introducing a temporal axis, but that this axis should be understood as a developmental model rather than as historical time. This explains Nietzsche’s failure to engage with history. The paper concludes that pragmatic genealogy can claim a genuinely Nietzschean pedigree. Introduction ‘The thinker’, Nietzsche writes, ‘regards everything as having evolved [...] he asks: whence does it come? what is its purpose?’ (WS 43). In his account of justice in Human, All Too Human, Nietzsche lets an answer to the second question grow out of an answer to the first: from the naturalist standpoint from which everything is seen as having evolved, a grasp of purpose is sought via genealogy. This triad of naturalism, pragmatism, and genealogy is echoed in contemporary neo-pragmatism, 1 and it is this parallel which this paper explores and exploits. The 1 A group whose contemporary representatives include Edward Craig, Hugh Mellor, Cheryl Misak, Robert Brandom, Huw Price, Michael Williams, Simon Blackburn, Robert Kraut and Paul Horwich. For an overview, see Misak (2007) and Misak and Price (forthcoming). Connections between Nietzsche http://www.tandfonline.com/eprint/96E7zCsiKXCF6m8GcGT4/full NIETZSCHE’S PRAGMATIC GENEALOGY paper has two goals. On the one hand, it seeks to bring out an under-appreciated aspect of Nietzsche’s genealogical method by viewing his texts in the light of neo-pragmatist ideas and reconstructing his approach to justice as a pragmatic genealogy. This serves to illustrate how genealogy can be used to vindicate rather than to subvert and accounts for Nietzsche’s neglect of history. On the other hand, the paper seeks to show that neo- pragmatic genealogy has a genuinely Nietzschean pedigree. This serves to indicate what neo-pragmatism might gain from a reading of Nietzsche. It might seem odd to connect Nietzschean genealogy to neo-pragmatism. After all, a core aim of neo-pragmatism is to accommodate topics of discourse that seem difficult to place within the naturalistic worldview by understanding our sayings in terms of our doings (Price 2011, 231; Brandom 2000, 18, 2008, 2013, 86); where it succeeds, it tends to vindicate our thinking and speaking in certain ways in terms of its practical value for creatures like us. Nietzschean genealogy, by contrast, is still widely seen as being in the business of subverting or problematising its target by highlighting its contingency.2 Yet the genealogy of justice in HA shows that Nietzsche’s method fundamentally grows out of a concern about naturalisability. It answers to a nineteenth-century naturalist’s concern that, without metaphysical postulates, some topics of discourse are hard to make sense of in naturalistic terms. Genealogy remedies this by offering a diachronic translation back into nature of what appeared to be beyond the naturalist’s grasp. Moreover, Nietzsche seeks to understand the ‘most universal ideas, the last wisps of smoke from the evaporating end of reality’ (TI ‘Reason’, 4) not in terms of the intrinsic nature of their referents, but in terms of the function in human affairs of these ideas themselves. Nietzsche’s focus on functions has received little attention, as interpreters (Foucault1971;Nehamas1985;Geuss1994;Koopman2013)havetendedtounderstand genealogy as highlighting contingency rather than functional necessity and to assimilate it to history. Nor have functional considerations received much attention in the literature on Nietzsche’s treatment of justice (Knoll 2009; Petersen 2015; Sedgwick 2013; Patton 2008, 2013). An exception is Richardson (2004, 2008), for whom genealogy uncovers the purpose of our practices by viewing them as expressions of our drives and asking and (classical) pragmatism are regularly drawn by Richard Rorty; see Allen (2010) and Fairfield (2010) for detailed assessments. 2 See Koopman (2013) for an overview. NIETZSCHE’S PRAGMATIC GENEALOGY what these drives have been selected for. 3 Yet by focusing on drives, Richardson neglects the role of concepts in explaining the lure of metaphysics which Nietzsche seeks to dispel. I argue, by contrast, that Nietzsche explains the appeal of metaphysics in terms of the concepts we live by, and these concepts in terms of our needs. This places Nietzsche in a tradition of pragmatic naturalism culminating in con- temporary neo-pragmatists like Huw Price. Price, like Rorty, has claimed Nietzsche as a precursor, though without substantiating the claim (2011, 186, 2013, i, 5). 4 What such roughly Wittgensteinian forms of pragmatism have to offer Nietzsche is a clear articulation of the idea that metaphysical worries about a given notion can be dissipated by looking at its role in practice and exhibiting its relation to the needs of creatures like us. 5 However, this species of functionalist explanation runs up against the fact that what we do when we use a term tends not to reduce to the performance of well-delineated functions. Various contingencies are likely to have left their mark on our conceptual practices besides functional dynamics. If we focus on drives, we run the danger of occluding that fact by only encouraging an instrumental view of conceptual practices as subservient to drives. If we focus on concepts, we have more room for the idea that history imbibed them with non-functional aspects, so that their roles fail to line up with their functions. The challenge then becomes to illuminate the role by the function without reducing one to the other. It is in his appreciation of the importance of taking a diachronic perspective that Nietzsche is of particular interest to contemporary neo-pragmatism. 6 Nietzsche was among the first to realise that by introducing a temporal axis, we can avoid reducing the concept at issue to a functionalist understanding of it which eclipses its non-functional 3 AnotherisMay(1999),whoalsoreadsNietzsche’sgenealogiesasfictionalbutvaluable‘waysofgettingus to think, even if hypothetically, about the functions of our actual ethical practices and their motivations by relating them to possible earlier or more elementary practices and motivations in a manner which is free of the search for timeless “groundings”’ (52). 4 Another precursor being Hume, whose own genealogy of justice (2000, 3.2.2) bears a striking resemblance to Nietzsche’s. See Hoy (1994). 5 See Misak (2016) for an illuminating account of the connections between Wittgenstein and pragmatism. For a pragmatist reconstruction of Wittgenstein’s views on reasons and rationality, see Queloz (2016). 6 Unsurprisingly—given the prevalence of Darwinism and historicism in the nineteenth century—an emphasis on temporality is also characteristic of the classical pragmatists and of some neo-pragmatists (see Koopman 2009). However, the neo-pragmatists at work today tend to emphasise functionality at the expense of temporality; and the diachronic element in Nietzsche I am concerned with here is not history, but the time-axis of a developmental model. NIETZSCHE’S PRAGMATIC GENEALOGY features. As another contemporary pragmatist put it, ‘[w]ith genealogy, we need neither overstress nor overlook function’ (Craig 2007, 198). Viewing Nietzschean genealogy in a pragmatist light has another advantage: the interpreters mentioned so far all tend to read Nietzsche as writing some form of history. Yetthisraisestheproblemofaccountingforwhatcanonlyappear, inatrainedphilologist, as a poor effort at writing history. This problem, real enough in the Genealogy, becomes even more acute in the case of the genealogy of justice: its only historical reference is to a situation in which questions of justice precisely failed to arise. If, by contrast, we read Nietzsche as trying to identify the original function of justice using a kind of model—what I call a type situation—his failure to engage with history becomes comprehensible. Insum,thispaperarguesforthefollowingclaims:(i)Nietzsche’sgenealogicalmethod grows out of a concern to naturalise the seemingly metaphysical; (ii) it addresses this concern by making sense of it in terms of its practical value; (iii) characteristic of this strategy is the shift from the phenomenon to our concept of it; (iv) Nietzsche avoids reductive functionalism by introducing a temporal axis; (v) this temporal axis is not that of history, but that of a developmental model. I will spell out each of these claims, illustrate them with a reconstruction of Nietzsche’s genealogy of justice, and end by discussing what such a fictional genealogy achieves. Genealogy as Diachronic Translation into Nature A central question for Nietzsche, with which he opens not only HA, but also Beyond Good and Evil, is how something can emerge from its opposite. Nietzsche’s talk of ‘opposites’ is, as he himself suggests (HA 1), hyperbolic. The question is not so much whether something can emerge out of its opposite in nature, but whether it can emerge out of the rest of nature (thus the rational is to be derived not so much from the irrational as from the non-rational). Nietzsche’s concern can be expressed as follows: Can X emerge from non-X, in the sense of everything up to, but not including, X? Can we find a place for such ethereal phenomena as rationality, sentience, logic, altruism, truth, truthfulness (HA 1, BGE 2)—and, we might add, justice—in the natural world by explaining how they could have emerged out of the rough-and-tumble of a reality originally devoid of these things? NIETZSCHE’S PRAGMATIC GENEALOGY Philosophers, Nietzsche finds, have tended to answer this question in the negative (TI ‘Reason’, 5; HA 1). Instead of trying to explain how a highly valued X could emerge from a lesser non-X, ‘metaphysical philosophy has hitherto surmounted this difficulty by denying that the one originates in the other’ (HA 1). Attempts to trace back the ‘supposedly miraculous’ to the ‘complex, the multiply caused’ (HA 136) are resisted, even more so after Darwin. ‘Formerly’, Nietzsche writes, ‘one has sought the feeling of the grandeur of man by pointing to his divine origin; this has now become a forbidden way, for at its portal stands the ape, together with other gruesome beasts, grinning knowingly as if to say: no further in this direction!’ (D 49). To pursue the inquiry into origins nonetheless is to attempt to understand a phenomenon as part of nature by understanding it in terms of the rest of nature. It is to this end that Nietzsche turns to genealogy in HA. Genealogy serves the naturalistic aim of translating humanity back into nature (BGE 239)—or, as Nietzsche later and rather less grandly put it, of sticking human beings back among the animals (AC 14). Genealogy serves ‘to naturalise humanity with a pure, newly discovered, newly redeemed nature’ (GS 109), whose redeemer, of course, is Darwin.7 If Nietzsche urged philosophers to stop viewing the world sub specie aeterni, it was because he wanted them to view it sub specie evolutionis (HA 2; WS 43; eKGWB 1885, 38[14]). Nietzschean genealogy seeks to show that what appears explicable only by incurring further commitments, paradigmatically of an ontological kind, is intelligible in relation to what is already part of one’s understanding of nature. This is an expression of one of Nietzsche’s guiding methodological principles: the ‘law of parsimony’ (eKGWB 1872, 23[30]). ‘Method’, he maintains in BGE, ‘must essentially be the economy of principles’ (13). He articulates this principle already in 1872: ‘the hypothesis which deploys the smallest number of presuppositions and means to explain the world takes precedence over all rivals’ (eKGWB 1872, 23[30]). Explanations in terms of ‘simpler and better understood forces, especially of the mechanical sort’ (eKGWB 1872, 23[30]), should be given precedence over explanations in terms of more complex or less understood forces. As Bernard Williams (1993) has highlighted, this does not carry with it the demand that the terms in which the explanation is given be the same in every case, as they would be if 7 Nietzsche’s criticisms of Darwin should not mislead us: Darwinism, he wrote, is something ‘I hold to be true’ (eKGWB 1872, 19[132]). Nietzsche knew Darwin mostly second-hand, and many of his criticisms have the effect of radicalising his Darwinism (Richardson 2004, 16–17). Emden (2014) supports this. NIETZSCHE’S PRAGMATIC GENEALOGY we tried to describe everything in terms of physics. Rather, what is taken as given will change from one case to the next. Taken in this sense, the law of parsimony boils down to the following demand: The Law of Parsimony: For any X, X is to be explained as far as possible in terms we use anyway for everything up to, but not including, X. To give a genealogy of justice, on this account, is to naturalise justice by explaining it not in terms of physics, but in terms of the rest of human psychology. It is to show how it could have arisen, under specific circumstances, out of motives we take to be effective anyway elsewhere (such as the interest in self-preservation), thereby rendering superfluous the appeal to additional entities (such as special faculties of moral intuition, a realm of forms, or divine commands). Genealogy thus enables the understanding of X in terms of non-X by delineating how X could have emerged from non-X. The relation between X and non-X, puzzling from a synchronic perspective, is rendered intelligible from a diachronic perspective. A genealogy is a form of diachronic translation back into nature. By effecting a diachronic translation, Nietzsche paves the way for a non-reductionist naturalism which circumvents issues such as whether X reduces to or supervenes on non-X. The claim is only that X could have emerged out of non-X, in answer to needs human beings have anyway. Pragmatic Genealogy There is a sense in which Nietzsche’s naturalism forms the problem to which his pragmatism forms the answer. Naturalism provides certain constraints on what is to count as a satisfactory explanation—notably the law of parsimony—and pragmatism offers the strategy by which to satisfy these constraints. ‘Pragmatism’ is a term that has gone through so many hands since it was first coined that it is in danger of losing its embossing. Yet in tracing the seemingly ahistorical and unconditioned to the mundane satisfaction of human needs, Nietzsche’s genealogies substitute philosophical anthropology for metaphysics in a way that is characteristic of pragmatism—they show how, as William James put it, the trail of the human serpent is over everything (1978, 37). Huw Price offers a less gnomic statement of this thought: NIETZSCHE’S PRAGMATIC GENEALOGY Pragmatism begins [...] with phenomena concerning the use of certain terms and concepts, rather than with things or properties of a non-linguistic nature. It begins with linguistic behavior, and asks broadly anthropological questions: How are we to understand the roles and functions of the behavior in question, in the lives of the creatures concerned? What is its practical significance? Whence its genealogy? [...] if we can explain how natural creatures in our circumstances naturally come to speak in these ways, there is no further puzzle about the place of the topics concerned, in the kind of world described by science. (2011, 231–32) As this and related work by neo-pragmatists suggests, a pragmatist approach involves at least two ideas: Ascent to the Conceptual: In addressing philosophically puzzling phenomena, do not start by asking about the nature or properties of X, but start with the concept of X and the terms in which it is expressed. 8 Pragmatic Direction of Explanation: Explicate these concepts or terms not by asking what their content or meaning is, but in terms of their role or function in practice, of what we are doing when we think and speak in this way. What does the concept or term do for us, and what is the rationale that drove its adoption? 9,10 These two ideas are recognisably (if largely implicitly) at work in Nietzsche’s thought. Reading him in the light of neo-pragmatist work can help us make these ideas explicit and lend support to Nietzsche’s approach. The debt is not entirely one-sided, however. Nietzsche’s work can help us reinforce an aspiration which, though prominent in classical pragmatism (Koopman 2009), is comparably neglected in contemporary neo-pragmatism: the aspiration to add a diachronic dimension to pragmatic explanation. Though I do not have room to argue for it here, some neo-pragmatists tend to run together two questions one can ask of a concept: what it now does, which is a matter of its current role in human affairs and likely covers a wide range of disparate employments; and what its original function is. Nietzsche, especially in his later work, appreciates that the answers to these two question are unlikely to line up: concepts are subject to reinterpretation, they can lose or acquire new functions; crucially, however, reinterpretations often only ‘obscure’ (GM 2.12) 8 See Misak 2007; Blackburn 2013, 71; M. Williams 2013, 128. 9 See Misak 2007; Brandom 2000, 12, 18; Price 2011, 29; Blackburn 2013, 71. 10 It is worth noting that the neo-pragmatists, unlike most classical pragmatists, do not take the pragmatic direction of explanation to entail a commitment to empiricism (see Brandom 2000, 23–25; M. Williams 2013). On this conception of pragmatism, Nietzsche is therefore free to offer fictional stories rather than empirical histories of the origins of concepts. NIETZSCHE’S PRAGMATIC GENEALOGY but do not erase past functions. As a result, our current concepts form an amalgam of numerous functions that have been layered into them over the course of history.11 Moreover, contingent historical developments are likely to have imbued them with aspects that cannot be captured in functionalist terms (GM 1.2). This raises a problem: on the one hand, the point of a concept is what the naturalist would really like to identify, because this is what explains how creatures in our circumstances naturally came to think in terms of it (not as a causal explanation of why it first arose, but as a functional explanation of why, having arisen, it endured); on the other hand, our current practices are the products of so much history that they are unlikely to exhibit a shape that lends itself to a simple and purely functionalist understanding—they will be in various ways multi- and non-functional. Nietzsche recognises that the way to deal with this gap between current role and original function is to add a third idea to his pragmatism, namely Diachronic Orientation: The pragmatic account must be given along a diachronic axis, in the form of a genealogical explanation of how and why we might have come to think and speak in these terms. The crucial thing for Nietzsche, as for contemporary neo-pragmatists, is not to answer these questions in ways that encourage metaphysics. 12 Introducing a diachronic axis allows Nietzsche to connect our current ways of thinking with their functional origins without reducing them to this original functionality. He emphasises this desideratum in the Genealogy (1.2, 2.12–14), but even in HA, where he makes sense of justice in terms of its instrumental value, he already leaves room for the thought that its current value goes beyond the instrumental. A similarly diachronic pragmatism is on display in Nietzsche’s approach to the seemingly unconditioned values of morality: he asks what the ‘value of those values’ (GM P 6) is, trying to determine their function and decide whether they promote and enhance life by investigating their possible origins (BGE 4); and in his approach to the ‘puzzling’ phenomenon of unconditioned truthfulness, or what he calls ‘the will to truth’, he asks about ‘the value of this will’ (TL 1).13 Nietzsche’s genealogies naturalise the seemingly unconditioned by presenting our thinking in such terms as functional responses driven by needs. As he puts it: ‘Our concepts are inspired by our need’ (eKGWB 1885, 2[77]). 11 This point, present only in nuce in GM 2.12, becomes central in 2.13 and 2.14. 12 See HA 10, Price (2007, 95) and Blackburn (2013, 69). 13 For a detailed account of Nietzsche’s pragmatic genealogy of truthfulness, see Queloz (forthcoming). NIETZSCHE’S PRAGMATIC GENEALOGY In revealing concepts we think of as unconditioned by history and functionality to be in fact thus conditioned, Nietzsche’s genealogies do for concepts what Darwin has done for organic traits. ‘If there is something new in Nietzsche’s use of genealogy’, Clark writes, ‘it is the suggestion that concepts are formed in the same way as other living things’ (2015, 31). A useful trait’s emergence will often be accidental; but its stability and spread through a population will be non-accidental: it will endure because it is connected to something useful. Nietzsche accounts for the spread of concepts by the same logic: there is variation of cultural formations in the course of history, and the usefulness of a given formation helps explain its retention and perpetuation. Nietzsche takes concepts to be inadequate tools for copying the world, because they originate from the obfuscation of differences and involve ‘false’ but life-serving abstractions, but they are necessary for coping in the world: ‘with this invented and rigid world of concepts and numbers, man gains a means of seizing by signs, as it were, huge quantities of facts and inscribing them in his memory’ (eKGWB 1885, 34[131]). Some concepts may be better at fulfilling this function than others. Over time, the concepts that earn their keep will persist or even spread, while those that do not will go out of business. This is why ‘the most useful concepts have remained; however wrong their origin may have been’ (eKGWB 1885, 34[63]). If we see the concepts we live by in this light, we will be less receptive to the seductions of grammar that encourage metaphysics (BGE P, 20). A note puts it succinctly: ‘Up to now, one generally trusted in one’s concepts as a miraculous dowry from some miracle world: but in the end they were the legacies left us by our most distant, stupidest and yet cleverest forebears;’ ‘concepts and words are our inheritance from days when heads were very dim and modest’ (eKGWB 1885, 34[195]). It is a model of these days when heads were very dim and modest that Nietzsche’s genealogies take as their point of departure. The Logic of Type Situations If we think that concepts are no miraculous dowry, but the mundane products of pragmatic pressures, then one way to make sense of them is to reconstruct in response to which pressures they emerged. The guiding idea will be to let our understanding of the concept grow out of our understanding of why the concept enjoys such widespread use. For this type of enterprise, we are less interested in the details of the situation of NIETZSCHE’S PRAGMATIC GENEALOGY emergence than in what we might call, in Karl Popper’s phrase, the ‘logic of the situation’ (1957, 149): a reconstruction of the situation in terms of the needs and interests of the agents taking part in it. Such a reconstructed situation will abstract from a host of circumstantial detail to focus on the interplay between the needs and interests involved. Yet Nietzsche’s point of departure is even more abstract. On the Popperian model, we abstract away from the particulars of a historical situation towards its logic, but we remain concerned with a particular situation and its personalities—what we might call a ‘token situation’ involving ‘token agents’. Nietzsche abstracts from the particular situation altogether. What he ends up with is the logic of type situations involving Weber- like ‘ideal types’ of agents whose needs and interests are articulated in terms of a generic psychology.14 We might say, therefore, that Nietzsche is concerned with the logic of type situations.15 Using such a type situation, we can identify and set out, in rough outline, problems to which human beings at any time and place will need to respond. If we can sketch how practical necessity will drive the emergence of concepts, beliefs and practices that function as solutions to these problems, and if these functional prototypes bear some resemblance to the phenomena we are interested in, we can lay claim to having identified the rationale that drove the emergence of the concepts. This is best understood with the help of a concrete example. The Genealogy of Justice In a chapter of HA entitled ‘Of the History of the Moral Sensations’, we find what both the section heading and the context suggest is a genealogy of justice: Origin of justice.—Justice (fairness) originates between parties of approximately equal power, as Thucydides correctly grasped (in the terrible colloquy between the Athenian and Melian ambassadors):wherethereisnoclearlyrecognizablesuperiorityofforceandacontestwouldresult inmutualinjuryproducingnodecisiveoutcometheideaarisesofcomingtoanunderstandingand negotiating over one another’s demands: the characteristic of exchange is the original characteristic of justice. Each satisfies the other, inasmuch as each acquires what he values more than the other does. One gives to the other what he wants to have, to be henceforth his own, and in return receiveswhatoneoneselfdesires.Justiceisthusrequitalandexchangeunderthepresuppositionof 14 Similarly, Janaway argues that Nietzsche’s procedure ‘involves a projected or imagined generic psychol- ogy, not properly localized to times, places, or individuals’ (2007, 11). 15 Ullman-Margalit (1977) offers a game-theoretic articulation of this idea. NIETZSCHE’S PRAGMATIC GENEALOGY an approximately equal power position: revenge therefore belongs originally within the domain of justice, it is an exchange. Gratitude likewise.—Justice goes back naturally to the viewpoint of reasonable self-preservation, thus to the egoism of the reflection: ‘to what end should I injure myself uselessly and perhaps even then not achieve my goal?’—so much for the origin of justice. Since, in accordance with their intellectual habit, men have forgotten the original purpose of so-called just and fair actions, and especially because children have for millennia been trained to admire and imitate such actions, it has gradually come to appear that a just action is an unegoistic one: but it is on this appearance that the high value accorded it depends; and this high value is, moreover, continually increasing, as all valuations do: for something highly valued is striven for, imitated, multiplied through sacrifice, and grows as the worth of the toil and zeal expended by each individual is added to the worth of the valued thing.—How little moral would the world appear without forgetfulness! A poet could say that God has placed forgetfulness as a doorkeeper on the threshold of the temple of human dignity. (HA 92) As Nietzsche’s dashes indicate, this section is divided into four parts: (1) the emergence andoriginalfunctionofjustice;(2)theoriginalmotivetojustice;(3)forgetting, imitation, increase in value; (4) the importance of forgetfulness for morality more widely. Let us explore each in turn. (1) The emergence and original function of justice: the first step in Nietzsche’s approach is so obvious as to be easily missed, but it already does some of the work—it is to ask after the origin of justice, and thereby to historicise a notion which, most evidently in the natural law tradition, presents itself as ahistorical. Against this tradition, Nietzsche maintains that ‘there is no such thing as eternal justice’ (HA 53). Justice has origins, and Nietzsche’s aim is to explain these origins so ‘that it can be perfectly understood without the postulation of metaphysical interference’ (HA 10). This is where he aligns himself with the neo-pragmatist aspiration to explain without encouraging metaphysics. Justice is, as the book’s programmatic title has it, human, all too human. When we ask questions about justice, or about morality generally, ‘we do not touch upon the “nature of the world in itself”; we are in the realm of ideas’ (HA 10). ‘It is’, as he later puts it, we ‘who really and continually make something that is not yet there’ (GS 301). Consequently, the question for Nietzsche is how we came to think in terms of justice, and this question must be ‘relinquished to the physiology and history of the evolution of organisms and concepts’ (HA 10). This exemplifies the pragmatist ascent to the conceptual: rather than to ask after the nature of justice, Nietzsche asks how we came to live by the concept of justice. Mankind, Nietzsche writes, ‘set up in language a separate world beside the other world [...] man NIETZSCHE’S PRAGMATIC GENEALOGY has for long ages believed in the concepts and names of things as in aeternae veritates [...] language is, in fact, the first stage of the occupation with science’ (HA 11). The concept of justice, Nietzsche tells us, originally arises between two parties A and B under the following conditions: (C1) Equilibrium of Power: two parties A and B under circumstances C are so well-matched as to suggest that outright pugnacity would result in a long drawn-out feud and mutual harm, leaving the victor so badly mauled as to render the spoils of victory useless. (C2) Conflict of Interests: two parties A and B under circumstances C have interests such that neither can freely pursue his or her interests without frustrating the interests of the other. When these two conditions are met, the most reasonable resolution of the situation for both parties lies in negotiating a settlement through the exchange of desired goods.16,17 This in turn requires the identification of the specific exchange in which ‘[e]ach satisfies the other, inasmuch as each acquires what he values more than the other does.’ Nietzsche’ssuggestionisthattheconceptofjusticeoriginatedoutoftheneedtonegotiate a settlement between equally powerful parties: ‘Der Charakter des Tauschs ist der anfängliche Charakter der Gerechtigkeit’—justice first manifests itself in the just exchange, the exchange that is satisfactory to both parties. Consequently, the original function of justice is to resolve stand-offs between parties of equal power in a manner advantageous to both. Justice, on this account, is originally justitia commutativa, commutative justice. It is a matter of exchanges being mutually satisfactory to both parties. Lack of satisfaction might then generate a demand for restorative justice towards the injured party and retributive justice towards the injuring party. Hence Nietzsche’s suggestion that ‘revenge therefore belongs originally within the domain of justice, it is an exchange’, and ‘[g]ratitude likewise’: gratitude arises when one is given more than would be just, the desire for revenge when one is given less. This explains why Nietzsche goes on to write that justice is not only ‘exchange’, but also ‘requital’. When either of the two conditions fails to be met, there can be no question of identifying an exchange acceptable to both parties. If C2 is not met because A and 16 I use this rationalistic representation of the decision-making process merely as an expository device; it is not meant to describe Nietzsche’s conception of agency. 17 Whether the two parties in fact manage to achieve the most reasonable outcome is then a further question. At least when the two parties in question are nation states, the historical record seems to license scepticism in that regard. See Graham Allison’s work on the ‘Thucydides Trap’. NIETZSCHE’S PRAGMATIC GENEALOGY B have non-conflicting interests, there can be no question of identifying an exchange acceptable to both parties, since they can satisfy their interests without it. Similarly, if C1 is not met, the stronger party will take what it wants and the weaker will have to put up with it. This is the force of Nietzsche’s reference to Thucydides: Thucydides describes how Athens sought to conquer the island of Melos (2013, 5.85–111). The Athenians sent emissaries to the rulers of Melos and offered them an ultimatum: surrender and pay tribute to Athens or be destroyed. The Athenians refused to argue over the justice of the situation, because ‘in the human sphere judgements about justice are relevant only between those with an equal power to enforce it [...] the possibilities are defined by what the strong do and the weak accept’ (5.89). This is the Thucydidean insight Nietzsche refers to. Justice cannot have originated in interactions between parties of unequal power, because, as Richard Crawley rendered the same passage in his 1874 translation, ‘the strong do what they can and the weak suffer what they must’ (1998, 5.89). Hence Nietzsche’s remark in the Genealogy that equilibrium is the presupposition of all contracts (GM 1.4). In the second volume of HA, Nietzsche goes on to sketch a reason to think that C1 will usually be met. He calls it the principle of equilibrium: fear of dangerous neighbours will systematically drive individuals to band together in a community and to ‘bring its power of defence and attack up to precisely the point at which the power possessed by its dangerous neighbour stands and then to give him to understand that the scales are now evenly balanced’; the community, on this picture, ‘is originally the organization of the weak for the production of an equilibrium with powers that threaten it with danger’, and this equilibrium ‘is the basis of justice’ (WS 22). Justice, then, originates ‘as a settlement between approximately equal powers’ (GM 1.4), as a means to preserve equilibrium rather than to engage in a costly fight for dominance. It emerges as a practical solution to a practical problem. But whose problem and when did it emerge? Nietzsche’s only historical reference is to a case were issues of justice failed to arise. For this reason, it seems clear that Nietzsche is not primarily interested in the specifics of the historical situation in which the concept of justice first arose. Rather, he is concerned with what we called a type situation, characterised by the two conditions we have so far identified. (2) The original motive to justice: what makes it reasonable for both parties to negotiate is the interest in self-preservation, and this is what Nietzsche brings out in NIETZSCHE’S PRAGMATIC GENEALOGY the second part of his genealogy. The original motive to justice in its first configuration is self-preservation rather than a concern for justice itself. This is the naturalisation of justice, which renders it intelligible by presenting it as growing out of basic human motives. Moreover, as Nietzsche implies by speaking of ‘reasonable’ self-preservation (ein- sichtige Selbsterhaltung), both parties must be reasonable enough in evaluating their options and their consequences to recognise that an exchange is their best bet. Suicidal agents would presumably forfeit the opportunity to resolve conflicts of interests through exchange, and so would non-suicidal agents too unreasonable to assess the situation correctly. We can therefore enrich our characterisation of the type situation at the origin of justice with two further conditions that specifically concern the type agents: (C3) Interest in Self-preservation: two parties A and B each have a strong interest in self- preservation. (C4) Powers of Reasoning: two parties A and B capable of reasoning their way to the conclusion that given C3, their interests are best served by seeking conflict-resolution through exchange. That self-preservation forms the original motive to justice is important for two reasons. First, it makes the account non-circular, since it explains the emergence of the concept of justice in a way that does not in turn appeal to the concept of justice: one does not originally settle for what come to be thought of as ‘just’ terms of exchange because they are just, but because they are acceptable to both parties and thus instrumental in achieving the desired outcome: the advantageous resolution of conflict. This is connected to Nietzsche’s naturalistic concern to explain the emergence of one thing out of its opposite: he explains the emergence of justice in terms of ‘non-justice’, that is, in terms of considerations that are not themselves matters of justice. Second, it presents justice as emerging out of something we take to be effective anyway elsewhere, thus heeding the demands of parsimony. As Nietzsche puts it in Daybreak: ‘The beginnings of justice [...] are animal: a consequence of that drive which teaches us to seek food and elude enemies’ (D 26). (3) Forgetting, Imitation, Increase in Value: the third part of HA 92 describes both the veiling of the original function and the development of a substitute conception of justice. The concept of justice spreads and is perpetuated, but not because people reason their way to its instrumental value over and over; rather, people who live by the NIETZSCHE’S PRAGMATIC GENEALOGY concept incite their offspring to imitate and admire them. If this goes on long enough, the original function is usually forgotten about and the concept acquires a life of its own: justice becomes an independently motivating reason for action. Ex hypothesi, utility in a purely personal sense can motivate just acts and has done so. But it also limits the scope of justice by making its exercise conditional on its having beneficial consequences. In insisting on the importance of the fact that these self-interested origins were forgotten, Nietzsche acknowledges that anything recognisable as our concept of justice is not tied to utility in this way. It is only if the functional origins of justice are veiled and replaced by another motive that the extension of the concept’s scope to parties of unequal power becomes intelligible as a developmental possibility. Nietzsche describes this process most fully in the second volume of HA: The same actions that within primitive society were first performed with a view to common utility have later been performed by other generations from other motives: out of fear or reverence of those who demanded and recommended them, or out of habit, because one had seen them done all around one from childhood on, or out of benevolence, because their performance generally produced joy and approving faces, or out of vanity, because they were commended. Such actions, whose basic motive, that of utility, has been forgotten are then called moral actions. (WS 40) The outcome of this development is that people no longer seek just exchanges in con- frontations between equals because it is conducive to self-preservation; the justification they give to themselves and to others is that it is just, and the causal explanation for this is that they have been taught to admire such actions as just—a new, non-egoistic motive and reason for action has arisen, and justice is sought for its own sake. Moreover, as Nietzsche argues in the passage on the origin of justice, the value of justice continually increases as the value of the efforts and sacrifices of those who have sought it in the past is added to it. That it was hard-won in the past becomes part of the reason why one should continue to seek it now. What exactly happens when the original function of justice—that it serves to resolve stand-offs between parties of equal power—is forgotten? People continue to seek mutually satisfactory exchanges, and so—other things being equal—the function of conflict resolution continues to be performed. But it is no longer part of the concept- users’ conception of justice that it performs that function, and consequently they are no longer motivated by that instrumental reason. Though it may remain functional, justice is now thought of in non-functional terms. It comes to be treated as an independently motivating reason for action—that something is just becomes in itself a reason to do it. NIETZSCHE’S PRAGMATIC GENEALOGY (4) The importance of forgetfulness for morality more widely: because Nietzsche holds that forgetting is the psychological mechanism responsible for the veiling of the original function of justice, and because he thinks that similar dynamics have given rise to similar moral concepts, he takes forgetfulness to be crucial to morality more widely. If the functionality of such things as justice remained in view, they would continue to be sought for that reason, and non-egoistic or moral considerations would fail to get a grip: they would either be redundant, because they recommended what prudential considerations recommended anyway; or, where they conflicted with prudential considerations, they would constantly be overridden by them. This is why Nietzsche concludes section 92 with the claim that the world would be a lot less moral without forgetfulness. There are two ways of reading this claim. On one reading, encouraged by the Foucauldian expectation that genealogies will be disobliging, Nietzsche means that forgetfulness about its functional origins is essential to our allegiance to justice. That self-preservation forms the original motive to justice is important because it differs from our present understanding of justice as something that is precisely not a matter of what Nietzsche describes as ‘egoistic reflection’. It presents justice in merely instrumental terms as a reasonable means towards an egoistic end, and therefore as not quite being what it seems to be. On the other reading, Nietzsche’s conclusion that the world would be a lot less moral without forgetfulness means that the veiling of functional origins achieved by forgetfulness is a causally necessary step in the development of moral concepts, but without being logically necessary to the finished product—much as scaffolding can be necessary to erecting a house, but where this does precisely not entail that the finished product will fall to pieces once it is removed. The claim that many moral concepts could never have arisen if their origins had not been forgotten then means that this was necessary for them to acquire a value that went beyond the instrumental. This non-instrumental value once acquired, however, the concepts are stabilised by moral motives, independently of whether or not they are assisted by prudential motives. In fact, once justice has become a moral notion valued for its own sake, this may well raise suspicions of its own: some may feel uneasy about justice, suspecting it to be a mysterious or fetishised notion. Nietzsche is conscious of this, and it is one reason why he thinks we need genealogy: the liberation through which the philosopher ‘emerges from superstitious and religious concepts’ and ‘overcome[s] metaphysics’ is one thing—‘Then, NIETZSCHE’S PRAGMATIC GENEALOGY however, a retrograde movement is necessary: he has to grasp the historical justification that resides in such ideas, likewise the psychological; he has to recognize that they have been most responsible for the advancement of mankind and that without such a retrograde movement one deprives oneself of the best that mankind has hitherto produced’ (HA 20). Genealogical inquiry is this retrograde movement. Far from always subverting its target, genealogy can serve to vindicate it by revealing it to be a response to human needs. The Point of Fictional Genealogy AllthiswouldbepoorhistoryifNietzscheweretryingtowritehistory.Butthereareother ways of approaching questions of origins. Nietzsche’s approach to justice is helpfully compared to that adopted by ethologists like Konrad Lorenz or Richard Dawkins in explaining restraints on aggression: many animals turn out to be much less aggressive than a naive interpretation of life as a struggle for self-preservation might predict. They often exhibit ritualisations—gestures of surrender, for example, are recognised by victors, who then refrain from dealing the killing blow. Lorenz and Dawkins make sense of this by abstracting away from the particulars of given encounters and deriving the rationale driving the emergence of the behaviour from type situations (Dawkins 1976, 67–73). Like Nietzsche’s confrontation between equally powerful parties, the type situation is, as Dawkins admits, ‘naively simple’—it is ‘a “model,” something that does not really happeninnature,butwhichhelpsustounderstandthingsthatdohappeninnature’(74). Withthehelpof suchamodel,LorenzandDawkins—likeNietzsche—enduppresenting quasi-moral behavioural patterns as rational because functional responses to challenges of self-preservation. This suggests a fictionalist reading of Nietzsche’s genealogies as depicting not what actually happened, but a schematic model of what we could imagine to have happened. Nietzsche’s genealogy of justice is thus emblematic of what Bernard Williams had in mind when he defined genealogy as ‘a fictional story which represents a new reason for action as being developed in a simplified situation as a function of motives, reactions, psychological processes which we have reason to acknowledge already’ (2000, 159). It presents justice as being developed in a situation combining power equality (C1) with conflicting interests (C2) as a function of the motive of self-preservation (C3) and the NIETZSCHE’S PRAGMATIC GENEALOGY capacity to reason one’s way to what best serves one’s interests (C4), and subsequently becoming an independently motivating and genuinely new reason for action. The point of starting with such a type-situational model is to identify generic initial conditions the dynamics of which drive the emergence of justice. This does not yield a categorical claim about how the concept of justice actually came about. It yields a hypothetical claim about how it could have come about: if such-and-such conditions are fulfilled, then we should expect something illuminatingly described as ‘proto-justice’ to arise. The explanatory power of the genealogy will be directly proportional to the level of generality and abstraction achieved by the initial conditions. The less specific the initial conditions are, the greater the probability that the genealogy describes the dynamics through which justice actually came about. Moreover, since the explanation is given in functional terms, it also yields a claim about justice’s original function. Here also there is obvious value in spelling out in highly abstract terms the initial conditions describing the exigencies to which justice functions as a remedy. The more culturally specific and parochial the circumstances to which a concept is presented as constituting a functional response, the less likely that the genealogy has identified a major driving force behind the concept’s development. Presenting a concept as functional relative to certain circumstances also suggests that it will cease to be functional once these circumstances cease to obtain. Hence, the more parochial the circumstances are, the sooner the concept will cease to be functional, and the less its functionality will have contributed to explaining its prevalence. What counts as a successful execution of a genealogical explanation is a function of the purpose to which it is put. If, as I have suggested, its purpose is to answer concerns about naturalisability, it will be enough to show that something could have arisen in a way that does not encourage metaphysics. Presenting a prototype of the target concept as a natural because functional response to certain exigencies of life lends plausibility to the story, giving even the most austere naturalist reason to be comfortable with the concept. Yet it is not only in showing the possible origins of the concept of justice that Nietzsche’s genealogy elucidates the modality of the concept; in revealing the concept of justice to be contingent upon certain facts about concept-users and their environment, it also reveals how local these facts are; and where, as in the case of justice, the facts are extremely general, the genealogy exhibits the concept of justice as counterfactually NIETZSCHE’S PRAGMATIC GENEALOGY robust: even if many things had been different, we would likely still have had something performing the role of the concept of justice, because wherever conditions C1–C4 obtain, there are strong pragmatic pressures on it to arise. By highlighting the relative practical necessity of certain concepts, genealogy can lay bare constraints on the space of possible concepts we might live by. To wrap things up, let me address two worries that this reading is bound to elicit. One is that even if Nietzsche is concerned with the generic, this does not exclude his being concerned with the contingent and parochial; he may be talking in generic terms about Europe only. This rightly highlights that something counts as generic only relative to a reference class; the dynamics highlighted by Nietzsche’s genealogy apply only as far as its four initial conditions. But on the fictionalist reading offer here, he is committed only to saying that where these conditions do obtain, a form of justice will arise—not to saying that they actually obtained. His four conditions at the origin of justice are so minimal, however, that they present justice as approximating practical necessity and universality. Another worry is that HA is representative only of Nietzsche’s positivistic phase, which he overcomes in the Genealogy when he condemns the functionalist approach of the ‘English psychologists’ (GM 1.2) and criticises as a ‘psychological absurdity’ the idea thatonemightforgetaboutfunctionalitydespiteitsactingasaconstantreminderofitself (GM 1.3).WhilethispointstoimportantdevelopmentsinNietzsche’suseofgenealogy,I thinkitunderstatesitscontinuity(evidencedbythefactthatintheGenealogy’spreface,he still refershisreaderstohisgenealogyofjusticeinHA).Forgetfulnessaboutfunctionality indeed gives way to a picture in which functionality never enters consciousness in the first place: in his genealogy of the concepts of good and evil, Nietzsche highlights their functionality in securing the revenge of the slaves without presupposing comprehension on their part—the process is ‘unconscious’ (although on a fictionalist reading of the genealogy of justice, this may be no more than a difference in presentation). Moreover, Nietzsche comes to see the need to insist that functionalist abstraction should not be confused with history—first, because this would amount to a reductive simplification of our concepts, and second, because functionalist abstraction can only take us from generic problems to generic responses to them, but cannot account for the historical variations of these responses. Type situations can yield the conclusion that any society needs some set of ethical ideas, but when what is at stake is precisely the development that NIETZSCHE’S PRAGMATIC GENEALOGY differentiates one particular set of ethical ideas from another (that of nineteenth-century Christians from that of the Greeks, for example), references to more contingent historical transformations become necessary. Nevertheless, the Nietzsche of the Genealogy holds on to—indeed, becomes more explicit about—the need to ascend to the conceptual (see GM 1.2–4); he still works in terms of generic psychology and type situations (though they become more differentiated); and the first step in his inquiry into the origin of the Slave morality and the ascetic ideal is to naturalise them by revealing them to be instrumental to the expression of the will to power of the weak and disadvantaged. It is only after having unriddled how they can be locally life-promoting that he then goes on to evaluate whether they are life-promoting overall. His genealogy of morality accounts for a historically acquired dysfunctionality, but it does so ultimately in terms of original functionality. Hence, his later use of genealogy can be seen as refining rather than relinquishing his earlier method. Conclusion In this paper, I have argued that Nietzsche’s early genealogy of justice is fruitfully viewed as a pragmatic genealogy in the vein of contemporary neo-pragmatism. My reconstruction shows that it is best seen not as responding to historical concerns about the datable origins of justice, but as responding to concerns about naturalisability. It further shows that in alleviating these concerns, Nietzsche’s genealogy pursues the neo- pragmatist strategy of replacing the question of what justice is by the question of the practical value of thinking in terms of justice; he then goes on to answer that question in terms of a narrative which presents the concept of justice as having naturally emerged as a functional response to a highly general problem. As we have seen, Nietzsche’s genealogical method holds out the promise of a non-reductionist naturalism. His genealogical explanation is, initially, a functionalist story, but one which, thanks to its temporal indexing, does not overemphasise function. It is only the first stage of development which is presented as forming an immediate response to human needs. There is room for further stages, less directly constrained by those needs and more responsive to the contingencies of history, which may carry us far from those functional origins. Genealogy neither overlooks nor overemphasises function. I want to conclude with an assessment of the significance, for our understanding NIETZSCHE’S PRAGMATIC GENEALOGY of Nietzsche and of neo-pragmatism, of reading the account of justice in HA as I have done in this paper. Its significance for our understanding of Nietzsche lies in the fact that it offers us an early prototype of his genealogical method which can serve as a guide to his more complex deployment of the method in the Genealogy (more complex, in particular, because of its involvement in genuine history). The functionalist developmental model which Nietzsche offers us in HA already implies that there is a more complex and genuinely historical story to be told about how less functionally necessitated and more contingent developments turned the prototype notion of justice into the rich, history-laden concept we know today. This kind of development gains in importance in the Genealogy, where the desire to make sense, on naturalistic terms, of morality as a generic human phenomenon stands alongside the desire to explain and highlight the differences between its specifically Christian outgrowth and earlier expressions of the phenomenon. In this enterprise, which is essentially that of explaining currentdysfunctionalityintermsoforiginalfunctionality,abstracttypesituationscannot take us all the way. Historical developments need to be taken into account at various points. This is not to say that Nietzsche’s later version of the genealogical method is necessarily better. For the concerns of naturalisability at the centre of HA, no history is required. One only needs to show that something ‘can be perfectly understood without the postulation of metaphysical interference’. This does not exclude its subsequently developing into something altogether different, thus leaving room for the idea that our current concepts may no longer be amenable to a purely functionalist understanding. But the functionalist diachronic model allows us to make sense of them in naturalistic terms, thus rendering metaphysical postulates redundant. 18 For neo-pragmatism, the significance of Nietzsche’s genealogy of justice lies in providing us with a common ancestor for seemingly unrelated forms of genealogy and a further historical reference point by which to make sense of the contemporary scene. Two projects in particular emerge as more genuinely Nietzschean than previously 18 Of course, naturalism itself involves assumptions some will consider ‘metaphysical’. But while in one sense, metaphysics is the project of describing reality’s substratum beyond the sensible world—the project of Schopenhauer’s The World as Will and Representation (1819/1844)—in another sense, it is the project of describing a substratum internal to the sensible world—the project of Schopenhauer’s On the Will in Nature (1836). While Nietzsche rejects metaphysics in the former sense, he may well embrace metaphysics in the latter sense with his doctrine of the will to power (BGE 13, 36, 259; GS 349). NIETZSCHE’S PRAGMATIC GENEALOGY supposed. One is Edward Craig’s Knowledge and the State of Nature (1990), which offers a diachronic pragmatic account of knowledge that can claim to be a direct heir of Nietzsche’s pioneering exploration of diachronic pragmatism. 19 The other is Bernard Williams’s Truth and Truthfulness (2002), which emphasises the need to enrich genealogies given in terms of type situations with history and thereby parallels the development from Nietzsche’s genealogy of justice to his genealogy of morality. Neither Craig’s nor Williams’s genealogical inquiries have the effect of undermining what they are about, but on the account I have offered in this paper, this makes them no less Nietzschean. A Nietzschean genealogy of justice will indeed have a destabilising effect on someone who thought of it in terms of theological or metaphysical revelations. Yet what it destabilises is not one’s commitment to justice, but to metaphysical interpretations of it. And if we had scruples about justice because it appeared mysterious or difficult to integrate into a naturalistic world-view, Nietzschean genealogy will even be vindicatory. Pragmatic genealogy can thus claim a genuinely Nietzschean pedigree. Bibliography Works by Nietzsche eKGWB: Digital Critical Edition of the Complete Works and Letters. Edited by Paolo D’Iorio. Based on the critical text by G. Colli and M. Montinari. Berlin and New York: De Gruyter, 2009–. HA: Human, All Too Human. Edited by Richard Schacht. Translated by R. J. Holling- dale. Cambridge: CUP, 1986. WS: The Wanderer and His Shadow. In HA, 301-95. D: Daybreak: Thoughts on the Prejudices of Morality. Edited by Maudemarie Clark and Brian Leiter. Translated by R. J. Hollingdale. Cambridge: CUP, 1997. GM: On the Genealogy of Morality. Edited by Maudemarie Clark. Translated by Maudemarie Clark and Alan J. Swensen. Indianapolis and Cambridge: Hackett, 1998. 19 In Knowledge and the State of Nature, Craig mentions neither Nietzsche nor genealogy; but see Craig (2007). NIETZSCHE’S PRAGMATIC GENEALOGY GS: The Gay Science. Edited by Bernard Williams. Translated by Josefine Nauckhoff and Adrian Del Caro. Cambridge: CUP, 2001. BGE: Beyond Good and Evil. Edited by Rolf-Peter Horstmann and Judith Norman. Translated by Judith Norman. Cambridge: CUP, 2002. AC, TI: The Anti-Christ, Ecce Homo, Twilight of the Idols, and Other Writings. Edited by Aaron Ridley and Judith Norman. Translated by Judith Norman. Cambridge: CUP, 2005. Other Works Allen, Barry. ‘Pragmatism and Gay Science: Comparing Dewey and Nietzsche’. In Dewey and Continental Philosophy. Edited by Paul Fairfield, 69-89. Carbondale and Edwardsville: Southern Illinois University Press, 2010. Blackburn, Simon. ‘Pragmatism: All or Some?’ In Huw Price et al., Expressivism, Pragmatism and Representationalism, 67-84. Cambridge: CUP, 2013. Brandom, Robert. Articulating Reasons: An Introduction to Inferentialism. Cambridge, MA: Harvard University Press, 2000. —. Between Saying and Doing. Oxford: OUP, 2008. —. ‘Global Anti-Representationalism?’ In Huw Price et al., Expressivism, Pragmatism and Representationalism, 85-111. Cambridge: CUP, 2013. Clark, Maudemarie. ‘Nietzsche’s Immoralism and the Concept of Morality’. In Nietzsche on Ethics and Politics, 23-40. Oxford and New York: OUP, 2015. Clark, Maudemarie and David Dudrick. The Soul of Nietzsche’s Beyond Good and Evil, Cambridge: CUP, 2012. Craig, Edward. Knowledge and the State of Nature: An Essay in Conceptual Synthesis. Oxford: Clarendon Press, 1990. —. ‘Genealogies and the State of Nature’. In Bernard Williams, edited by Alan Thomas, 181-200. Cambridge: CUP, 2007. NIETZSCHE’S PRAGMATIC GENEALOGY Crawley, Richard. The Landmark Thucydides: A Comprehensive Guide to the Pelopon- nesian War. Edited by Robert B. Strassler. New York: Simon and Schuster, 1998. Dawkins, Richard. The Selfish Gene. New York: OUP, 1976. Emden, Christian J. Nietzsche’s Naturalism: Philosophy and the Life Sciences in the Nineteenth Century. Cambridge: CUP, 2014. Fairfield, Paul. ‘Dewey, Nietzsche, and the Self-Image of Philosophy’. In Dewey and Continental Philosophy, edited by Paul Fairfield, 90-110. Carbondale and Edwardsville: Southern Illinois University Press, 2010. Foucault, Michel. ‘Nietzsche, la généalogie, l’histoire’. In Hommage à Jean Hyppolite, edited by S. Bachelard, 145-172. Paris: Presses Universitaires de France, 1971. Geuss, Raymond. ‘Nietzsche and Genealogy’. European Journal of Philosophy 2, no. 3 (1994): 274-292. Hoy, David Couzens. ‘Nietzsche, Hume, and the Genealogical Method’. In Nietzsche, Genealogy, Morality: Essays on Nietzsche’s On the Genealogy of Morals, edited by Richard Schacht, 249-267. Berkeley: University of California Press, 1994. Hume, David. A Treatise of Human Nature. Edited by David Fate Norton and Mary J. Norton. Oxford: OUP, 2000. James, William. Pragmatism and The Meaning of Truth. Edited by A. J. Ayer. Cambridge, MA, and London, England: Harvard University Press, 1978. Janaway, Christopher. Beyond Selflessness: Reading Nietzsche’s Genealogy. Oxford: OUP, 2007. Knoll, Manuel. ‘Nietzsches Begriff der sozialen Gerechtigkeit’. Nietzsche-Studien 38 (2009): 156-181. Koopman, Colin. Pragmatism as Transition: Historicity and Hope in James, Dewey, and Rorty. New York: Columbia University Press, 2009. —. Genealogy as Critique: Foucault and the Problems of Modernity. Bloomington and Indianapolis: Indiana University Press, 2013. NIETZSCHE’S PRAGMATIC GENEALOGY May, Simon. Nietzsche’s Ethics and his War on ‘Morality’. Oxford: Clarendon Press, 1999. Misak, Cheryl, ed. The New Pragmatists. Oxford: OUP, 2007. —. Cambridge Pragmatism: From Peirce and James to Ramsey and Wittgenstein. Oxford: OUP, 2016. Misak, Cheryl, and Huw Price, eds. The Practical Turn: Pragmatism in Britain in the Long Twentieth Century. Oxford: OUP, forthcoming. Nehamas, Alexander. Nietzsche: Life as Literature. Cambridge, MA: Harvard University Press, 1985. Patton, Paul. ‘Nietzsche on Rights, Power and the Feeling of Power’. In Nietzsche, Power and Politics: Rethinking Nietzsche’s Legacy for Political Thought, edited by Siemens, Herman W. and Vasti Roodt, 471-490. Berlin and Boston: De Gruyter, 2008. —. ‘Nietzsche, Genealogy and Justice’. In Nietzsche and Political Thought, edited by Keith Ansell-Pearson, 7-22. London: Bloomsbury Academic, 2013. Petersen, Jens. Nietzsches Genialität der Gerechtigkeit. 2nd ed. Berlin: De Gruyter, 2015. Popper, Karl Raimund. The Poverty of Historicism. London: Routledge, 1957. Price, Huw. Naturalism Without Mirrors. Oxford: OUP, 2011. Price, Huw, Simon Blackburn, Robert Brandom, Paul Horwich, and Michael Williams. Expressivism, Pragmatism and Representationalism. Cambridge: CUP, 2013. Queloz, Matthieu. ‘Wittgenstein on the Chain of Reasons’. Wittgenstein-Studien 7, no. 1 (2016): 105–130. —. ‘Two Kinds of Genealogy?’. Forthcoming. Richardson, John. Nietzsche’s New Darwinism. New York: OUP, 2004. —.‘Nietzsche’sProblemofthePast’.In Nietzsche on Time and History,editedbyManuel Dries, 87-112. New York: De Gruyter, 2008. NIETZSCHE’S PRAGMATIC GENEALOGY Sedgwick, Peter R. Nietzsche’s Justice: Naturalism in Search of an Ethics. Montreal and Kingston: McGill Queens University Press, 2013. Thucydides. Thucydides: The War of the Peloponnesians and the Athenians. Edited and translated by Jeremy Mynott. Cambridge: CUP, 2013. Ullmann-Margalit, Edna. The Emergence of Norms. Oxford: Clarendon Press, 1977. Williams, Bernard. ‘Nietzsche’s Minimalist Moral Psychology’. European Journal of Philosophy 1, no. 1 (1993): 4-14. —. ‘Naturalism and Genealogy’. In Morality, Reflection, and Ideology, edited by Edward Harcourt, 148-161. Oxford: OUP, 2000. —. Truth and Truthfulness: An Essay in Genealogy. Princeton: Princeton University Press, 2002. Williams, Michael. ‘How Pragmatists can be Local Expressivists’. In Huw Price (ed.), Expressivism, Pragmatism and Representationalism, 128-144. Cambridge: CUP, 2013. 
work_umyfgd6cvbbkjjz2mano56bzii	----	Justice: Justice: What’s The Right Thing To Do? Books Out of Hours THe uncerTainTy Sink The Bad Doctor Ian Williams Myriad Editions, 2014 PB, 220pp, £12.99, 978-1908434289 A middle-aged man named Iwan, an ex-heavy metal fan, a cyclist, and a GP. The central figure of Ian Williams’ graphic novel would have a Twitter bio alarmingly close to my own. With the title in mind I approached The Bad Doctor with some trepidation. It is subtitled ‘The troubled life and times of Dr Iwan James’ and we follow Iwan as he consults, worries about being a bad doctor, and struggles to cope with his own obsessive compulsive disorder. His GP experiences with patients and partners are punctuated by cycle rides with his gay mate. There can’t be many GPs who don’t worry about being bad doctors. And, in truth, we all have days when the complexity seems to run away from us; where even the simple things elude our grasp. General practice is celebrated as an uncertainty sink but that same uncertainty can overwhelm us on the bad days. That’s part of the normal ebb and flow of professional life. General practice forces us to recognise and live with our own foibles. Iwan’s struggle to come to terms with his own self is at the heart of this story. As he says: ‘The doubt is only about myself. I can be objective about patients. I don’t worry about treatment decisions.’ The monochrome images are spare but effective. The graphic novel format offers a richness and depth to this tale; it is a tribute to Williams’ skills that I can’t imagine reading simple prose on this topic. A short essay on burnout wouldn’t have the same effect. A paper on ‘doctors in difficulty’ wouldn’t linger in the mind the way Iwan’s struggles do. More than anything, Iwan James, ‘Bad Doctor’, turns out to be, like all of us, a perfectly normal doctor. In other words just a perfectly normal human being. There is much in this reflective graphic novel to help us all reconcile the personal and professional. euan Lawson, Deputy Editor, BJGP, London. e-mail: euanlawson@gmail.com @euan_lawson DOI: 10.3399/bjgp14X682429 * * * * * JuSTice Justice: What’s The Right Thing To Do? Michael J Sandel Penguin, 2010 PB, 320pp, £9.99, 978-0141041339 According to Jiminy Cricket you should ‘always let your conscience be your guide’. But what about hard cases and new problems? Yes, we have the four principles. Maybe we need no more, just as I only need the brake, accelerator, clutch, and steering wheel to drive. Do I really have to worry about what lies under the bonnet? But if, as Dunstan has suggested, doctors are society’s ‘accredited moral agents’ then perhaps we should know about morals as well as muscles? There’s more to ethics than four principles just as there’s more to musculoskeletal medicine than doling out naproxen. Justice is by far the best general introduction to moral theory that I have come across. Also the liveliest. Sure, Sandel covers Aristotle and Kant and Bentham and the gang, but the book is full of stories of real moral problems. This reminds us that ethics is not about moral theory. Ethics is about what to do when Jiminy Cricket lets us down. The book covers the usual curriculum of moral philosophy: utilitarianism versus duty, liberty, free markets, inequality, virtue, and human welfare. Interestingly (and very much in the tradition of Aristotle) Sandel also covers issues such as friendship and loyalty. Morality exists within a social space and within human relationships. We are also reminded that few problems are genuinely new. An open market for kidneys? Read what Kant said about the rich buying the teeth of the poor for attempted implantation. Sandel is a lawyer and political philosopher, not a medical ethicist. It is refreshing to talk about morals in the wider world rather than just our own well- rehearsed problems. From whether it would be justified for a soldier to kill three enemy sympathiser civilians to save the lives of 19 of his comrades, to whether Clinton lied to the American people or merely ‘misled’ them, this book will give you plenty to think about. And you will find that you have received a pretty good education in moral theory without really noticing. This book is easy, fun, erudite, and genuinely worthwhile. I suggest it as introductory reading to ethics students. If combined with some notes on one’s own ‘ordinary’ cases it would be a brilliant starting place for self-certified CPD. David Misselbrook, GP, Dean Emeritus of the Royal Society of Medicine, Past President FHPMP the Society of Apothecaries, Senior Lecturer in Family Medicine RCSI Medical University of Bahrain and BJGP Senior Ethics Advisor. e-mail: DMisselbrook@rcsi-mub.com DOI: 10.3399/bjgp14X682441 * * * * * WeLL-verSeD in MeDicine Tools Of The Trade: Poems For New Doctors Lesley Morrison, John Gillies, Ali Newell, Lilias Fraser, Editors Scottish Poetry Library, 2014 PB, 96pp, £5.00, 978-0956219169 ‘New doctors will be empowered by poems in the pockets of their metaphorical white coats.’ Such is the aim of the RCGP (Scotland) and the Scottish Poetry Library in producing 586 British Journal of General Practice, November 2014 
work_un3v2vnz6ja4pkardi7gwbuqqa	----	Microsoft Word - Cover-OwningAnimals.doc Alasdair Cochrane Ownership and justice for animals Article (Accepted version) (Refereed) Original citation: Cochrane, Alasdair (2009) Ownership and justice for animals. Utilitas, 21 (4). pp. 424-442 DOI: 10.1017/S0953820809990203 © 2009 Cambridge University Press This version available at: http://eprints.lse.ac.uk/25824/ Available in LSE Research Online: November 2009 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final manuscript accepted version of the journal article, incorporating any revisions agreed during the peer review process. Some differences between this version and the published version may remain. You are advised to consult the publisher’s version if you wish to cite from it. http://www2.lse.ac.uk/researchAndExpertise/Experts/profile.aspx?KeyValue=a.d.cochrane@lse.ac.uk http://journals.cambridge.org/action/displayJournal?jid=UTI http://dx.doi.org/10.1017/S0953820809990203 http://journals.cambridge.org/ http://eprints.lse.ac.uk/25824/ Ownership and Justice for Animals ALASDAIR COCHRANE London School of Economics and Political Science This paper argues that it is not necessary to abolish all incidents of animal ownership in order to achieve justice for them. It claims that ownership does not grant owners a right to absolute control of their property. Rather, it argues that ownership is a much more qualified concept, conveying different rights in different contexts. With this understanding of ownership in mind, the paper argues that it is possible for humans to own animals and at the same time to treat them justly: to recognise that they possess moral status; to assign them meaningful rights; and to consider their interests equally. 1. INTRODUCTION For some thinkers, the most significant obstacle to achieving justice for non-human animals is the fact that they are owned.1 It is argued that just as the ‘property status’ of African slaves and married women in the nineteenth century necessarily prevented these individuals from receiving their just entitlements, so the same is true of animals in the present day.2 As such, these thinkers call for the immediate abolition of all animal ownership, and the liberation of all exploited animals. In contrast to these thinkers, I argue in this paper that it is not necessary to abolish all incidents of animal ownership in order to achieve justice for animals. This is because the concept of ‘ownership’ does not grant owners a single right amounting to exclusive and absolute control over their property. Rather, ownership refers to a set of relations governing the possession and use of a particular entity. Importantly, the set of applicable relations varies in different contexts, and each relation is qualified to a greater or lesser extent depending on that 1 See G.L. Francione, Animals, Property and the Law, (Philadelphia, 1995); Rain Without Thunder: The Ideology of the Animal Rights Movement, (Philadelphia, PA, 1996); Introduction to Animal Rights: Your Child or the Dog?, (Philadelphia, 2000); and S. M. Wise, Rattling the Cage, (London, 2000). An earlier advocate of this view is B. E. Rollin, Animal Rights and Human Morality, (New York, revised ed., 1992), pp. 119-126. 2 P. Cavalieri and P. Singer, ‘The Great Ape Project – and Beyond’, The Great Ape Project: Equality Beyond Humanity,ed. P. Cavalieri and P. Singer (London, 1993), pp. 304-306; Francione, Rain Without Thunder, p. 127; and D. W. St. Pierre, ‘The Transition from Property to People: the Road to the Recognition of Rights for Non-Human Animals’, Hastings Women’s Law Journal 9 (1998), pp. 255- 271, p. 255. 1 context. Moreover, it is my claim that not all of these relations are objectionable, and thus do not stand in the way of achieving justice for animals. Of course, this raises the question of what ‘justice for animals’ actually entails. Clearly, it would be quite wrong to suggest that there is a set of fundamental principles that all who advocate justice for animals adhere to. After all, our obligations to animals have been addressed and delineated from within a variety of philosophical perspectives.3 However, for the purposes of this paper I will focus on three principles, and assume that in combination they comprise ‘justice for animals’. I have chosen these three for two reasons. First, taken together these principles impose strict limitations on what humans may permissibly do to animals, thus providing a robust standard with which to test the basic claim of this paper. Second, these principles are specifically endorsed by those animal liberationists who argue most forcefully against the ownership of animals by human beings.4 Given all of this then, the first principle I take to be a component of justice for animals is the principle of moral status. This tenet states that sentient animals have an independent moral standing of their own which should be recognised in state legislation. Second, is the principle of animal rights, which claims that sentient animals have certain moral rights based on their most important interests, which should be enforced as legal rights. And finally, is the principle of equality, which declares that the interests of all sentient animals (including humans) should be considered equally when devising our moral and legal obligations. Without doubt, all of these principles are hugely controversial in themselves. Indeed, many would question whether animals – lacking the capacities for moral action themselves – even merit justice.5 Nevertheless, the purpose of this paper is neither to defend the principles sketched above, nor to prove that animals merit justice. Rather, it 3 For examples see P. Singer, Animal Liberation, (London, 2nd ed., 1995); T. Regan, The Case for Animal Rights, (Berkeley, CA, 2nd ed., 2004); J. Donovan and C. J. Adams, Beyond Animal Rights: A Feminist Caring Ethic for the Treatment of Animals, (New York, 1996); A. Linzey, Animal Theology, (London, 1994); and M. Calarco and P. Atterton (ed.), Animal Philosophy: Essential Readings in Continental Thought, (New York, 2004). 4 See Francione, Introduction to Animal Rights. 5 See J. Rawls, A Theory of Justice, (Oxford, revised ed., 1999), pp. 441-442. 2 is to show that these proposed principles of justice for animals can be realised without abolishing all incidents of animal ownership. As such, the paper will simply assume that animals deserve justice, and that justice for animals is comprised by the three stated principles. In addition, it is also important to note that this paper does not seek to provide a justification of the ownership of animals, either in any specific instance, or more generally.6 That is to say, my aim is not to justify a scheme of private property rights pertaining to animals. Rather, I simply claim that some forms of ownership need not stand in the way of achieving justice for animals. Whether this ownership, or any other ownership, is justified in itself is a different question that I do not address. In order to make this argument, the paper is divided into four sections. First, I briefly introduce the concept of ownership and defend conceiving of it in terms of a contingent set of relations, rather than a single right of exclusive and absolute control. In the following three sections, I examine each of the basic principles which I take to comprise justice for animals – moral status, rights and equality – and explain why owning animals need not obstruct their realisation. 2. THE CONCEPT OF OWNERSHIP Some individuals take ownership and property to refer to the absolute control of things by persons. Famously, this view of ownership was explicitly endorsed by William Blackstone in the eighteenth century: There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right to property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.7 6 For an excellent review of different possible justifications of private property see L. C. Becker, Property Rights: Philosophical Foundations, (London, 1977). 7 W. Blackstone, Commentaries on the Laws of England: Vol II Of the Rights of Things (1766), (London, 1979), p. 2. 3 Under this conception, property confers on an owner the one basic right to exclusive and absolute control over his or her property. Thus, if I own a book, I may read it, tear its pages out to start a fire, use it as a door-stop, give it away, sell it, and so on. Moreover, you and others cannot take it away from me without my consent. I own the book, and thus have complete and exclusive control over it, under this conception. However, one does not need to dig very deep to reveal the limitations of this way of viewing ownership. One can think of numerous uncontroversial examples of ownership that do not confer this kind of exclusive and absolute control. For example, if I own a barrel of beer, I cannot simply sell glasses of it to passers-by on the street; if I own a house, I cannot refuse entry to all other people in all circumstances; and if I own a piece of land, I cannot simply build what I like upon it. Such examples have led many philosophers to move away from the Blackstonian ‘absolutist’ conception of ownership. Ownership is now rarely conceived of as denoting a single right of absolute and exclusive control. Rather, it is more commonly thought to refer to a particular set of ‘incidents’ or ‘relations’, which do not constitute the necessary and sufficient conditions required to own a piece of property, but rather the general and qualified features of ownership. The most famous exponent of this relational conception of ownership is A.M. Honoré. In his article, ‘Ownership’, Honoré lists eleven standard relations that an owner can stand in with regards to his property ‘X’: the right to possess X; the right to use X; the right to manage X; the right to the income from the use of X; the right to the capital value of X; the right to security against the expropriation of X; the power to transfer X to another; the absence of any term on the possession of X; a duty to refrain from using X that may harm others; the liability that judgements against him may be executed on X; and the right that when the claims that others have over X lapse, they will return to him.8 To reiterate then, it is not Honoré’s claim that each of these incidents must be present in order for something to be owned by someone. Something might be owned even when 8 A.M. Honoré, ‘Ownership’, Oxford Essays in Jurisprudence, ed. A. G. Guest (Oxford, 1961). 4 certain of these relations are limited, or indeed absent. Nevertheless, these incidents are the common features of ownership according to Honoré.9 Without doubt, this more differentiated way of viewing ownership seems much more attuned to the complexities of the ways that we can be said to own things. Its qualified nature allows us to make sense of the variety of property relations often at play in any example of ownership, such as those involved in the examples of the book, barrel of beer, house and piece of land. However, once we start breaking up the concept in this way, we are left to wonder whether there is anything left of it. Indeed, it is claimed by some that the relational view of ownership leads to the disintegration of the concept. For example, Thomas C. Grey has argued that the concepts of ownership and property confer no definitive information as to the rights and duties of an owner over a particular entity.10 While I think that this statement is correct, in that ownership conveys no definitive information, it still surely conveys some information, and has meaning as such. In Honoré’s scheme the concept conveys that the owner has a certain bundle of rights, duties, liabilities, and so on, drawn from the pool of incidents he outlines. Importantly, it is also worth pointing out that ownership generally implies that a specified owner has a certain priority when it comes to those incidents.11 Thus, if I own some land, I may not have ‘sole and despotic dominion’ over it, but ordinarily, I am more entitled than anyone else to possess it, use it, manage it, derive income from it, transfer it, or whatever other incidents are relevant in that particular case. While this briefest of summaries of the concept of ownership is far from complete, I do hope to have identified two important aspects of ownership. First, ownership does not convey the single right of exclusive and absolute control. Instead, it refers to a set of incidents or relations which vary in different contexts. Second, although this relational 9 J. Waldron, The Right to Private Property, (Oxford, 1988), pp. 49-50. 10 T.C. Grey, ‘The Disintegration of Property’, NOMOS XXII: Property, ed. J. R. Pennock and J.W. Chapman (New York, 1980). 11 Honoré, ‘Ownership’, p. 134. Also see Waldron, The Right to Private Property, p. 60; and J. Tannenbaum, ‘Animals and the Law: Property, Cruelty, Rights’, Social Research 62 (1995), pp. 539- 607, p. 557. 5 view of ownership does fragment the term, it does not disintegrate it. In other words, ownership does convey some information. It signals that an individual or group stands in a certain set of relations with regards to a particular thing, and it specifies that an individual or group holds a certain priority with regards to those relations. Given this understanding, we are now better placed to examine more carefully whether ownership stands in the way of realising justice for animals. 3. OWNING ANIMALS AND MORAL STATUS Some proponents of justice for animals have argued that the ownership of animals precludes recognising their moral status. The concept of moral status is quite simply, ‘…a means of specifying those entities towards which we believe ourselves to have moral obligations...’12 Moral status thus grants an entity a certain standing, meaning that we have obligations concerning that entity for its own sake, and not simply for the sake of someone else. To explain, consider my obligation not to kick a dog lying asleep on the floor. There might be two different explanations of the obligation. First, I might have the obligation not to kick the dog, solely because you own the dog and do not wish him to be kicked. In this case, we do not consider the dog to have moral status; you are the being with moral status, and the obligation is fundamentally owed to you. Alternatively, I might have the obligation not to kick the dog even if you encourage me to do so. This might be because the dog will be caused pain, and causing pain to sentient animals is ordinarily wrong. In this case, the obligation would be owed to the dog himself, and thus we would be according him moral status. For proponents of justice for animals, it is imperative that we recognise that sentient animals have moral status of their own, are worthy of moral consideration for their own sake, and that such consideration is not merely dependent on the interests and sentiments of human beings. The claim that owning animals precludes recognising their moral status is based on the idea that being owned means that an entity can only be valued in terms of its utility to its 12 M. A. Warren, Moral Status: Obligations to Persons and Other Living Things, (Oxford, 1997), p. 9. 6 owner, and not for its own sake. As one proponent of this view writes, ‘Property implies that we see an object’s value through the context of its owner’s welfare, a denial of intrinsic value that seems inappropriate in the case of animals.’13 Of course, one obvious way in which property can contribute to its owner’s welfare is through its ‘capital value’. Given this, it has been claimed that treating something as owned, as a piece of property, necessarily entails treating it simply as a commodity; that is, as an entity whose value is determined solely by the market, and without moral status of its own. As Gary Francione writes: Animals have market prices. Dogs and cats are sold in pet stores like compact discs; financial markets trade in futures for pork bellies and cattle. Any interest that an animal has is nothing more than an economic commodity that may be bought and sold when it is in the economic interest of the property owner. That is what it means to be property.14 If it were true that the ownership of animals necessitated treating them as mere commodities, then I do believe that it would preclude the recognition of their moral status. If we took this view of animals, we would treat them solely in terms of their monetary value: welfare would be sacrificed for increased profit, and animals with no market value would be neglected or killed. Many of the practices of intensive farming seem to support the idea that we treat many owned animals as mere commodities. To reduce costs, animals are crowded into small areas that cause them great discomfort, as epitomised by the practices of confining hens in battery cages and pigs in sow stalls. The market value of animals is increased at the cost of animal welfare, such as when calves are confined in veal crates and geese force- fed to produce foie gras. Furthermore, animals are routinely killed when they have no market value, as evidenced in the routine slaughter of male chicks and ‘spent’ dairy cows. It would appear then, that a great many owned animals are treated as mere commodities without moral status. 13 A. Simon, ‘Cows as Chairs’, People, Property or Pets?, ed. M.D. Hauser, F. Cushman, and M. Kamen (West Lafayette, 2006), p. 6. 14 Francione, Introduction to Animal Rights, p. 79. 7 Despite such examples, however, it is not evident that commodification is inherent in the concept of ownership. It is perfectly possible to enjoy rights to possess, use, manage, derive income, and buy and sell an entity, without treating that entity solely in terms of its market value.15 Indeed, the present situation of many animals shows us that it is perfectly possible both to own them and also to recognise that we have direct obligations to them for their own sake. For there is a raft of legislation in place in many countries across the world specifying the conditions under which owned animals can be kept and used, outlining our obligations to them, and thus restricting what can be done to them for economic gain. For example, consider once again those practices of intensive farming described above. In the UK, as in many other states, there is detailed legislation outlining the necessary size, height and construction of the cages for laying hens. Sow stalls have been banned in the UK since 1999. Owners of calves in the UK have not been permitted to confine their animals in veal crates since 1990. Finally, the production of foie gras is banned in the UK.16 This legislation is not to protect the economic interests of the animals’ owners; in fact, quite obviously, it acts contrary to their interests. Instead, such legislation acts to protect animals’ interests for their own sake, recognising that they are owed obligations due to their status as sentient beings.17 Now, of course it will be objected that such legislation does not go far enough. It will undoubtedly be claimed that this legislation does not meet all of our obligations to sentient animals. After all, confining pigs, chickens and other animals in ways which cause suffering is still routinely permitted in all states, as of course is the killing of male chicks and spent cows. But my point is not to defend the status quo; clearly a huge amount more could and should be done to take the moral status of animals more seriously. Rather, my point is simply that there is nothing inherent in the concept of 15 The claim that it is possible to separate the monetary and non-monetary values of entities is made by E. Mack, ‘Dominos and the Fear of Commodification’, NOMOS XXXI: Markets and Justice, ed. J.W. Chapman and J. R. Pennock (New York, 1989); and C. Fabre, Whose Body is it Anyway?: Justice and the Integrity of the Person, (Oxford, 2006), pp. 129-140. 16 All legislation is available from <www.defra.gov.uk> 17 There is legal recognition of this status in the EU thanks to the Treaty of Amsterdam of 1997. 8 ownership which precludes doing this. Legislation can be introduced for the direct benefit of animals themselves, without requiring the abolition of all ownership of animals by humans. Ownership does not preclude recognising the moral status of sentient animals. 4. OWNING ANIMALS AND RIGHTS While ownership might not obstruct recognising animals’ moral status, perhaps it does preclude assigning rights to animals. For you will recall that I take recognising and enforcing animal rights to be the second component of achieving justice for animals. For our purposes, it will be useful to highlight three important elements to the claim that animals should be recognised as having certain rights. First of all, it is usually argued that animal rights are founded on the interests of the individual right-holder. This interest-based conception of rights is famously contrasted with the will or choice-based conception. In brief, the interest-based view claims that the essential feature of any right-claim is that it benefits the right-holder; whereas the will- based theory claims that the essential feature of a right-claim is the presence of choice in the right-holder. The former thus sees the basis of rights as the protection of the welfare of the individual, while the latter sees the basis of rights as the protection of the individual’s autonomous sphere of action. Given the need for the capacity for autonomous choice in the will theory, many rights-theorists have pointed out that for the notion of ‘animal rights’ to even be coherent, they will have to be based on an interest- based approach.18 Thus many proponents of animal rights argue that sentient animals possess interests, and that their most important interests should be protected through assigning them animal rights. 18 J. Feinberg, ‘The Rights of Animals and Unborn Generations’, Philosophy and Environmental Crisis, ed. W. T. Blackstone (Athens, GA, 1974), pp. 49-51; P. Jones, Rights, (Basingstoke, 1994), p. 35; and H. Steiner, ‘Working Rights’, A Debate Over Rights: Philosophical Enquiries, ed. M. Kramer, N. Simmonds and H. Steiner (Oxford, 1998), p. 259. 9 This brings us to the second important part of the principle. Advocates of this position claim that animals should be assigned rights not simply for symbolic or rhetorical purposes, but because they mark out real and important moral limits on what can be done to an individual. This makes proponents of animal rights different from other campaigners for animals who eschew rights and simply plug animal interests into an aggregative utilitarian framework.19 Proponents of rights do not just take a cost-benefit analysis of overall consequences when working out what ought to be done. For such an approach can lead to the sacrifice of some individuals in the name of the social good. Rather, these proponents want rights to act as ‘trumps’ over the social good, preventing such individual sacrifices.20 Given this, we can see that proponents of animal rights are claiming that some interests of animals are so important that they must be protected by rights, even if that protection incurs costs to the overall social good.21 Finally, most proponents of animal rights do not merely wish to confine their claims to the recognition and ascription of animals’ moral rights. Instead, these moral rights are meant to provide the normative foundation for the ascription of such rights in the actual legislation of states. As such, calls for the recognition of animal rights are calls for animals to be awarded legal rights. Why then might the ownership of animals preclude recognising their rights? One argument simply states that it is logically impossible for property to possess legal rights. It is claimed that something cannot be owned and at the same time be the bearer of rights.22 This claim is based on the so-called ‘dualistic’ nature of the law. According to this interpretation, the law treats entities as either persons or things: the former enjoy full protection under the law and thus possess rights, whereas the latter do not enjoy such 19 Singer, Animal Liberation, p. 8. 20 R. Dworkin, Taking Rights Seriously, (London, 2004). 21 Regan, The Case for Animal Rights, pp. 276-277. 22 D. Hanbrick, ‘A Legal Argument against Animals as Property’, People, Property or Pets?, p. 55; and A.J. Dryden, ‘Overcoming the Inadequacies of Animal Cruelty Statutes and the Property-Based View of Animals’, Idaho Law Review 38 (2001-2002) pp. 177-212, p. 178. 10 protection, and thus have no rights. Since animals are property, they lie in the group of things, and thus possess no rights.23 However, this account takes an oversimplified view of the law. When we look at the law, it is not at all clear that all entities which are owned necessarily belong to this mysterious group of ‘things’ which possess no rights. For example, corporations are clearly owned in that certain individuals have rights to possess, use, manage, buy, sell and derive income from them. Nevertheless, in the law, corporations are recognised as having personhood, rights and even certain responsibilities. Given this, we can see that it is erroneous to regard the law as strictly dualistic. Of particular significance, the status of corporations reveals that it is perfectly possible for an entity to be owned and to be the bearer of legal rights. Importantly, this more complex legal picture is also borne out by the legal situation of animals themselves who do, as a matter of fact, possess legal rights in many countries.24 After all, anti-cruelty laws confer on animals the legal right not to be subjected to cruel treatment. The recent Animal Welfare Act in England and Wales goes further than this, and not only outlaws cruel treatment, but also establishes upon owners and keepers of animals a ‘duty of care’ to ensure that their animals’ welfare is provided for. In light of such legislation, it is perfectly coherent to claim that owned animals in England and Wales possess a legal right to this minimum standard of care. Contrary to such arguments, however, Francione contends that anti-cruelty and animal welfare laws do not confer any meaningful rights on animals. Once again, this is because of the fact that animals are property. To explain, Francione argues that anti- cruelty legislation is part of a system of ‘legal welfarism’, or balancing of interests. So when we as a society consider how to treat animals, we balance our human interests 23 Wise, Rattling the Cage, p. 4. 24 Tannenbaum, ‘Animals and the Law: Property, Cruelty, Rights’, p. 581; C. M. Sunstein, ‘Standing for Animals (with Notes on Animal Rights)’, UCLA Law Review 47 (1999-2000), pp. 1333-1368, p. 1336; D. Favre, ‘A New Property Status for Animals: Equitable Self-Ownership’, Animal Rights: Current Debates and New Directions, ed. C. R. Sunstein and M. C. Nussbaum (New York, 2006), p. 239; and H. Landemore, ‘Why Should One Reject the Motion Intending to Remove Animals from the Status of Property?’, People, Property, or Pets?, p. 71. 11 against the interests of animals. Because animals are owned, Francione claims that such balancing will always come down in favour of human beings. Accordingly, on occasions it might be in our interests to prevent and outlaw ‘unnecessary’ animal suffering that we disapprove of, such as cruelty to pets. However, in situations where we have to consider sacrificing our own important interests, such as in animal agriculture and animal experimentation, animals always lose out. This explains why much anti- cruelty legislation exempts the practices of intensive farming and research laboratories: the suffering produced by these practices is deemed to be ‘necessary’ by the balancing of interests.25 Because there are no absolute prohibitions on what we may do to animals, Francione contends that anti-cruelty and animal welfare laws confer no meaningful rights. However, Francione is quite wrong here. There is nothing inherent in the concept of ownership which means that property must always lose out in the balancing of interests, and thus never be assigned rights. For example, consider the legislation preventing the production of foie gras in the UK. This law confers on geese the right not to have a metal pole forced down their throats and grain pushed into them until their livers become unnaturally swollen. In keeping with the analysis of rights offered earlier, this right protects an important interest of the geese, even in the face of worse overall consequences for humans. That is to say, foie gras production in the UK might lead to more jobs, cheaper foie gras, happier chefs, more satisfied consumers and so on. Yet all of these consequences are overridden by the geese’s interests, and the law confers on them a right not to be subjected to such actions. Geese and other sentient animals may well be owned, but that does not put them in a class of ‘things’ which logically lack rights. Anti-cruelty and animal welfare legislation can assign rights to animals, meaningful rights which act contrary to the interests of human property owners. Moreover, while farming and research practices might be exempted from such legislation in some US states, they 25 Francione, Animals, Property, and the Law, pp. 4-5; Rain Without Thunder, p. 4; and Introduction to Animal Rights, p. 55. 12 need not be. For there is a good deal of legislation governing such practices in the UK and elsewhere, despite the fact that the animals involved are owned. No doubt it will be objected that many of the laws referred to above, and the rights they confer, are insufficient. I agree. However, once again I should reiterate that my aim is not to defend the status quo. Rather, it is to show that there is nothing about the concept of ownership which logically entails that what is owned cannot possess rights. 5. OWNING ANIMALS AND EQUALITY Some proponents of justice for animals might agree with my claims up to this point. That is, they might acknowledge that ownership does not obstruct recognising that sentient animals possess moral status and can be granted meaningful rights. But they will point out that so long as animals are owned, they will always be in a subordinate position to their owners. In other words, so long as animals – but not humans – are owned, there can never be equality between animals and humans. And as you will recall, I take equality to be the third and final component of achieving justice for animals. While it is not the purpose of this paper to justify the principle of equality between humans and animals, it is necessary to explain what this principle means. For proponents of justice for animals, equality means ‘equal consideration of interests’, and not ‘equal treatment’. This conception of equality forms the basis of Peter Singer’s theory of animal liberation: The extension of the basic principle of equality from one group to another does not imply that we must treat both groups in exactly the same way, or grant exactly the same rights to both groups. Whether we should do so will depend on the nature of the members of the two groups. The basic principle of equality…is equality of consideration; and equal consideration for different things may lead to different treatment and different rights.26 Thus equality between humans and animals does not imply that we should give pigs the vote or vaccinate school children against foot and mouth disease. Pigs have no interest 26 P. Singer, ‘All Animals are Equal’, Applied Ethics, ed. P. Singer (Oxford, 1986), p. 217. 13 in voting, and children have no interest in being vaccinated against a disease they cannot contract. What equality does imply is that we should not privilege children’s interests over those of pigs, or vice versa. All individuals with interests are entitled to those interests being considered equally, according to this principle. The important question to consider then, is whether owning animals, and now owning humans, is an example of unequal consideration. To answer this, we need to establish whether animals, like humans, possess an interest in not being owned. In order to determine this, I will evaluate three incidents of ownership: the right to possess, the right to use and the right to transfer. The reasons for choosing these particular incidents are twofold. First of all, in terms of our ordinary use of the term, these three incidents can be considered as the most basic aspects of ownership. Secondly, it is the interest that humans have in not being subjected to these particular incidents – possession, use and transfer - that generates our fiercest opposition to the ownership of humans. Given this, it makes sense to evaluate whether animals share that same interest. A. Possessing Animals and Equal Consideration of Interests To possess something is to have physical control of that thing.27 Being physically controlled, as a slave is controlled by his master, prevents humans from being free, whether one conceives of freedom as non-interference, self-mastery or non- domination.28 Given that freedom is taken to be a fundamental interest of human beings, possession runs contrary to the interests of most humans. What then of animals? Does possession also restrict the freedom of animals? Clearly it does. However, it is far from clear that freedom is in the interests of all animals.29 In actual fact, freedom is not even in the interests of all humans. Take young children, for example, whose freedom we routinely restrict: we limit their movement with such things 27 Honoré, ‘Ownership’, p. 113. 28 On these conceptions of freedom, see I. Berlin, ‘Two Concepts of Liberty’, Political Philosophy, ed. A. Quinton (Oxford, 1967); C. Taylor, ‘What’s Wrong with Negative Liberty?’, Liberty, ed. D. Miller (Oxford, 1991); and P. Pettit, Republicanism, (Oxford, 1997). 29 A. Cochrane, ‘Do Animals Have an Interest in Liberty?’ Political Studies (forthcoming). 14 as stair-gates; we deny them self-mastery by making them go to school even when against their wishes; and we dominate them by holding the power to limit or extend their sphere of actions, as parents do when they impose certain rules on their children. None of these paternalistic restrictions are harmful, however, as they would be if they were imposed on adults. This is because unlike adults, children are not fully autonomous agents. What I mean here is that young children do not have the capacity to frame, revise and pursue their own conceptions of the good.30 Given such reduced capacities, restricting the freedom of children, as we do in the uncontroversial type of actions outlined above, does not act contrary to their interests. More importantly for our purposes, this also explains why the possession of children does not run contrary to their interests. For while we do not ordinarily say that parents own their children, we must acknowledge that they stand in at least one property relation to them: they have the right to possess them. Without doubt, this right to physical control is subject to important qualifications, such as the duty to meet the child’s basic needs and so on. Nevertheless this right is straightforwardly an incident of ownership. Returning to animals then, we can see why possession might not always run contrary to their interests. Like children, most animals lack the capacity to frame, revise and pursue their own conception of the good. This is not to say that sentient animals do not have desires, or that they act in order to satisfy them. It is merely to state that they cannot reflect on those desires and form their own life plans in the way that most adult humans can. This lack of autonomy means that freedom is not a fundamental interest of most animals, as it is for most adult humans. Given this, the possession of animals by humans will not always run contrary to their interests. For example, my possession of my cat is very much like a parent’s possession of a child. The physical control involved is of course subject to certain qualifications – such as a duty of care – but it is not 30 This definition of autonomy is advanced in C. Fabre, ‘A Philosophical Argument for a Bill of Rights’, British Journal of Political Science 30 (2000), pp. 77-98. 15 objectionable simply because it limits the freedom of my cat. Possessing a pet cat is quite unlike possessing an adult human: the interests of each are different in this regard. Of course, I should make it clear that I am not claiming that any possession of any animal is harmless. Without doubt, possession can sometimes run contrary to the interests of animals. For example, some animals are more autonomous than others. Indeed, some might claim that certain types of animal, such as the great apes and cetaceans, have sufficient capacities to have a fundamental interest in liberty. If this is right, and there is not the space here to explore whether it is, then the possession of such animals does run contrary to their interests. Moreover, it is also evident that some non-autonomous animals have an interest in freedom, and thus in not being possessed. For example, a wild animal such as fox may not have the autonomous capacities to be described as possessing a fundamental interest in liberty akin to that of adult humans, but he is very likely to have a strong instrumental interest in liberty. That is to say, being free in the wild might not be valuable to him simply for its own sake, but it might make his life more enjoyable. Given all of this, taking possession of that fox - say by going into the countryside and trapping him - would run contrary to his interests. Quite simply, this is because such possession would cause him to suffer greatly: he would be removed from his familiar habitat; removed from his social network; he would feel threatened and fear for his life; and he would grow frustrated at not being able to escape. Indeed, these kinds of argument present a compelling case for the view that all wild animals have an interest in not being possessed. There would thus seem to be a strong prima facie reason to prevent individuals taking possession of animals in the wild. However, the same arguments do not hold for domesticated animals, such as our pets, farm animals and the like. This is because wild and domesticated animals have different interests in this regard. For example, domesticated animals are born into and bred for human society, and are thus not only used to, but sometimes dependent on human care for their well-being. For domesticated animals, possession does not engender the levels 16 of suffering and distress that it does for wild animals. Thus, possession does not run contrary to the interests of domesticated animals. In sum, it is possible to possess certain animals and at the same time to consider their interests equally. This is because of the simple fact that some animals have no interest in not being possessed. B. Using Animals and Equal Consideration of Interests The next incident of ownership that we need to consider is that of being used. Being used for certain purposes is often contrary to the interests of human beings. In particular, it would obviously be objectionable to use human beings in many of the ways we currently use animals. For example, we do not currently raise humans and perform painful medical experiments on them. Nor do we raise humans and kill them for their tasty flesh. Clearly, humans have an interest in not being used in ways that make them suffer or which kill them. But do animals share such interests? Given their capacity to feel pleasure and pain, it is uncontroversial to maintain that animals have an interest in not being used in ways that make them suffer. This would obviously mean that animals have an interest in not being used in painful medical experiments, or in many of the practices of intensive farming, for example. However, the question of whether animals have an interest in continued life is less clear. Peter Singer, for example, argues that many animals have no such interest, pointing to the fact that many animals are not able to conceive of themselves existing in the future, as most humans are able to do.31 But while it is true that many animals lack this ability, it is unclear why this inability should mean that they have no interest in continued life. After all, we do regularly assign interests to individuals even when those individuals cannot conceive of the relevant good. For example, a young child may not have the ability to conceive of herself inhaling oxygen and exhaling carbon dioxide. However, it would be strange to say that she has no interest in breathing, for breathing straightforwardly 31 P. Singer, Practical Ethics, (Cambridge, 2nd, 1993), p. 119. 17 benefits her. In light of this, it is plausible to claim that sentient animals possess an interest in continued life if it can be shown that continued life benefits them. Since continued life affords animals the opportunity for future valuable experiences – an obvious benefit - several proponents of justice for animals have argued that sentient animals do possess an interest in their lives continuing.32 If this is correct, using animals in ways which kill them runs contrary to their interests. Given all of this, if we are to consider the interests of humans and animals equally, it will be necessary not to use animals in ways that kill them or that cause them to suffer. Putting this into practice would obviously entail some incredibly radical changes to our current practices: an end to painful animal experiments and raising animals for meat, for example. However, adopting such changes is certainly feasible: it is possible to use animals in ways which do not cause suffering and which do not end in their death. For example, consider a free-range farm which raises cows for milk and which raises chickens for eggs. Such a farm could meet all of its animals’ welfare needs and not kill any of them. Clearly, most farms – including free-range farms – do not operate like this. But my point is simply that the adoption of such practices is possible. However, perhaps even this non-painful and non-lethal use of animals would be inegalitarian. For imagine treating human beings in this way: that is, raising them on farms to use their by-products as food. No matter how comfortable we made those humans, they would still have an interest in not being used like this. For while we do use other humans for a whole range of tasks, the forced use of human beings is rightly considered to be a serious harm. And if this is true for humans, then why is it not also true for animals, who are also being used forcibly and without their consent even in free- range conditions? At this point, we need to ask whether animals possess an interest in not being used against their will, even when such use is non-painful and non-lethal. I want to claim that many animals have no such interest. Once again, this is because 32 D. DeGrazia, Animal Rights: a Very Short Introduction, (Oxford, 2002), pp. 59-64; Rollin, Animal Rights and Human Morality, p. 86; and S.F. Sapontzis, Morals, Reason and Animals, (Philadelphia, 1987), p. 169. 18 most animals are not autonomous agents, and are thus unable to frame, revise and pursue their own life plans. Forcing a domesticated animal into a particular form of employment is thus quite unlike forcing an autonomous human into such employment. The freedom to frame, revise and pursue one’s own way of life is crucial to the welfare of autonomous human beings; but is of no consequence to a non-autonomous non-human. At this stage it will undoubtedly be objected that my argument has a serious counterintuitive implication. If domesticated animals lack an interest in being used against their will on the basis that they lack the ability to frame, revise and pursue their own conceptions of the good, then the same must be true for human beings who lack such capacities. In other words, non-autonomous humans such as young children and the mentally disabled must also lack this interest in being used forcibly. So does my argument condone child labour, for example? I do not believe that it does. For it should be pointed out that my argument acknowledges that non-autonomous individuals do have an interest in not being used against their will when such use is lethal or causes suffering. And since most instances of child labour do cause suffering – in the short and/or long term - the harm inflicted by such practices is recognised by the argument presented here. However, there is an alternative objection to my argument which has not yet been addressed. Gary Francione calls for the abolition of all uses of animals on the basis that using animals in this way treats them merely as means to humans’ ends.33 For Francione, this kind of ‘instrumentalism’ violates the interests of animals, is intrinsic to the practice of owning animals, and thus stands as the major obstacle to considering the interests of animals equally. Thus, even if we amend our practices so that that when we extract milk from cows, and eggs from chickens, no animal suffers or is killed in the process, we still treat these animals as mere tools for our own purposes, and thus according to Francione violate their interests as such. 33 Francione, Introduction to Animal Rights, pp. 8-35. 19 But given that most animals are not autonomous agents as I have defined the term, we can question whether this Kantian objection as invoked by Francione has any applicability to animals. After all, Kant’s reason for opposing treating individuals as mere means derived from the value he saw in autonomous agents being able to pursue their own ends. Since animals lack autonomy, Kant saw nothing wrong in treating them merely as means.34 However, let us for the sake of argument adapt this means-ends argument. Suppose then that it is wrong to use any individual with interests solely as a means to our ends. Does this mean that the non-lethal and non-painful use of animals is morally problematic? I do not think that it does. After all, for this adapted principle to have any plausibility it must still retain an important Kantian element: that is, we should not treat other individuals with interests exclusively as means to our ends. For quite clearly, we treat others as means to our own ends all the time, and without controversy. For example, if I go and see my doctor at her surgery to remedy an illness that I have, I am clearly using that individual as a means to my end of getting better. Few, I imagine, would find this objectionable. What would be wrong would be for me to treat that doctor exclusively as a means to my ends. Thus, if I get some other illness at a later date, and notice the doctor playing with her family in a nearby park, it would be objectionable for me to interrupt and demand a cure. Quite obviously this is because the doctor does not exist simply as a means to satisfy my ends, but has her own interests and ends to pursue. It is my contention that we can use animals as means to our ends, without using them exclusively as means to our ends. To treat animals exclusively as means would be to offer no concern for their own basic interests when those interests conflict with our own ends. But in the example of the free-range dairy farm, where animals are used but not made to suffer and are not killed, we do not treat them exclusively as means to our ends. Instead, we recognise that the cows and chickens are sentient beings, give them a good quality of life as such, and take what we want from them in ways that do not cause 34 I. Kant, Lectures on Ethics, trans., L. Infield, (New York, 1963), p. 239. 20 them to suffer or die. Clearly, and as I have stated before, this is not a reflection of how current farms go about their business. As I have also stated before, it is not my aim to defend the status quo. However, the argument shows that it is possible to use animals for certain purposes and to consider their interests equally. C. Transferring Animals and Equal Consideration of Interests The final incident of ownership that we must consider is the transferral of possession from one person to another, as is done when animals are bought and sold. Clearly, most humans have an interest in not being transferred based on their interest in not being possessed in the first place. Do animals also have this interest in not being transferred? First of all, in light of earlier discussions, we can say that if animals do possess this interest in not being transferred, they do not hold it on the basis that transferral necessarily treats them as mere commodities, nor do they hold it on the basis that possession itself harms them. As pointed out earlier in the paper, it is perfectly possible to have the power to buy and sell animals, while recognising that they have a status independent of their market value. And as we have also seen, many animals have no interest in not being possessed. In light of such considerations then, can we say that all exchanges of animals are harmless? Unfortunately we cannot. Often the transferral of possession can cause significant suffering to animals. This is especially true for those infant animals who are taken from their mothers too young; but it is also true for mature social animals who can suffer greatly when uprooted from familiar environments and social networks. Of course, this does not mean that being transferred is contrary to the interests of all animals. Indeed, a moment’s reflection reveals that transferral is not even contrary to the interests of all humans. For example, those humans who have no interest in not being possessed, such as young children, may not always have an interest in not being transferred. Indeed, most states permit the transferral of possession of children through such mechanisms as adoption and fostering. This is simply because it makes sense to 21 recognise that for some children – orphans, the abandoned, the abused, the neglected, and so on – being transferred in this way is of great benefit to them. Similarly, it is perfectly reasonable to claim that some animals – perhaps those in similarly unfortunate situations - are also benefited by being transferred. What then of animals who are not in such unfortunate situations? Whether or not it is in the interests of such animals to be transferred will depend on the circumstances of the case. What we can say, however, is that not all such transfers will be harmful. What is imperative, in terms of the equal consideration of interests, is that the animals do not suffer from the transfer. Of course, if the only transfers that are permissible in the name of equal consideration are those that cause no suffering to the animals involved, this would necessitate much greater regulation than is in place in most states. It would obviously require the breeders and vendors of animals to be closely monitored to ensure that all of the interests of animals are protected when such exchanges take place. For example, presently in the UK any resident over the age of 16 can buy an animal without having to prove that he or she has the knowledge, space, time and resources to look after that animal for the whole of its life. Clearly that does not offer much protection to the interests of animals. Thus, if buying animals is permissible so long as the important interests of animals are protected, it seems crucial that we have some assurances that those interests will be protected. Some kind of licensing system would seem to be the obvious way of meeting this need. Once again, however, the argument calls for regulation of the system of ownership rather than its abolition. There is nothing inherent in the idea of transferring animals that undermines considering their interests equally. To end this section on equality, it will be useful to summarise its main points. When proponents of justice for animals advocate for equality between animals and humans, what they are really advocating for is for the interests of animals and humans to be considered equally. The interests of humans should not be privileged simply because they are human interests; instead, each and every interest should be judged on its own 22 merits. The practice of owning animals might seem a straightforward way in which such equality is obstructed. After all, we do not own other humans, so why can we own other animals? Quite simply, the answer comes down to the fact that humans and animals do not share exactly the same set of interests. In sum, many animals do not share humans’ interests in not being possessed, used and transferred. While this conclusion does not serve to justify how animals are currently treated, it does show that it is possible to both own animals and consider their interests equally. 6. CONCLUSION This paper has argued that it is not necessary to abolish all ownership of animals in order to achieve justice for animals. Owning an animal does not convey upon human property-owners the single right to have absolute and exclusive control of that animal. Ownership is rather a much more fragmented concept, conveying different rights and incidents in different contexts. Given this more qualified conception of ownership, it is possible for humans to hold certain property rights over animals, and also to assign them moral status, ascribe them rights, and consider their interests equally. Of course, none of this justifies our present treatment of owned animals, which is far removed from what is required by justice as I have outlined it. Clearly, if we believe that the principles of justice for animals that I have put forward are valid, then we will have to alter or abolish many of our current uses of animals. However, this paper has contended that justice for animals can be realised without having to abolish each and every incident of animal ownership. As such, ownership itself does not have the importance that many proponents of justice for animals have claimed.35 A.D.Cochrane@lse.ac.uk 35 I would like to thank Alejandro Chehtman, Andrej Keba, Stephen Whitfield and members of the LSE Forum in Legal and Political Theory for helpful feedback on earlier drafts of this paper. 23 mailto:A.D.Cochrane@lse.ac.uk Cover-OwningAnimals.doc OwningAnimals4.doc 
work_uoxavdn4grb3jb5neiquuvcaue	----	Book Review Elder crimes, elder justice David R. Snyder Jones and Bartlett Learning, Burlington, MA, 2014, 253pp., $66.95, ISBN: 978-0763728595 Security Journal (2016) 29, e16–e19. doi:10.1057/sj.2014.27; published online 16 June 2014 It is the year 2014 and at the time of this book’s publication we are seeing things around us change in large-scale ways. Things in general are bigger, brighter and more expensive, and more people have them. There are more stores, more schools and more streets to live on. There is also more poverty, more hungry children and more families on Government assistance than ever before. David R. Snyder’s work Elder Crimes, Elder Justice focuses on crime being the greatest problem faced by the United States today. The country’s population has a greater proportion of elderly people than ever before, and this monumental population growth is not showing signs of slowing. The author explains that in today’s fast-paced and utility-driven society, the elderly are often forgotten, isolated and no longer cared for by the larger and younger population. Snyder argues that we as a society are not unaware of these events occurring; however, no one appears to be too concerned. Thus with this writing, Snyder informs the reader that this large population of elderly individuals living in our society causes law enforcement to more frequently cross paths with this population cohort. As a society we expect our law enforcement officers to adequately serve all members of our population. By utilizing Snyder’s writing, officers can better understand the needs and special considerations of the older community that Snyder claims is often forgotten. Elder Crimes, Elder Justice is concentrated on preparing the law enforcement officer to adequately serve and protect the elderly population within the community by providing the knowledge and skills sets required for day-to-day interactions with this unique cohort. Snyder petitions for society to embrace the standards of enabling older individuals to live in a state of dignity and security and to be free from exploitation and forms of abuse. Snyder also combines and utilizes what is known about the aging process and what is known about crime in order to educate the law enforcement community on the important issues faced by older people with regard to crime and victimization. The book also largely focuses on the unique needs of the elderly and provides law enforcement officers with the knowledge needed to build the confidence to understand the aging process, communicate with older people, understand their fears, create effective crime prevention strategies and respond appropriately to elderly offenders. The book does not necessarily aim to inform the common member of society, but rather targets the law enforcement officer by providing key knowledge and skills appropriate for the field of law enforcement. Snyder designed the book with a sort of ‘how- to’ textbook format so that the law enforcement officer can easily understand and further apply the points from each chapter. © 2016 Macmillan Publishers Ltd. 0955-1662 Security Journal Vol. 29, 2, e16–e19 www.palgrave-journals.com/sj/ http://dx.doi.org/10.1057/sj.2014.27 http://www.palgrave-journals.com/sj At the beginning of each of the seven chapters of Elder Crimes, Elder Justice, Snyder opens with ‘Learning Objectives’ for the reader. The author successfully uses this numerically listed set of learning objectives to give the reader a purpose and goal while moving through the text. Each chapter also includes various ‘Case Studies’ that serve to prompt the law enforcement officer to think about what ‘I’ would do in such a situation. This function encourages the officer to personally connect with the cases and understand the reality of the issues that he or she may face in the daily routine of law enforcement. Inserted into various appropriate parts of each chapter are ‘Attitude Tips’ and ‘Communication Tips’ to prompt the law enforcement officer to appropriately handle calls with effective communication, and address myths or stereotypes commonly associated with elderly people. Each chapter concludes with ‘Case Study Summaries’ that offer numerous ways the law enforcement officer can approach and successfully handle each provided situation. Also included at the end of each chapter is a list of ‘Key Terms’ in a glossary format. This provides definitions for each of the bold terms used throughout the text. Each of these purposeful additions to the text allows the reader to gain a more uniquely in-depth understanding of the material and how it can be applied to his or her everyday working situations. After a brief preface that introduces Snyder’s purpose for creating the book and outlines what the reader will find in each chapter, Chapter 1 begins with the author outlining six learning objectives, one attitude tip and the first case study. These initial calls to attention focus the reader directly on the reality of being faced with serving a larger older population and igniting the thought process toward how a law enforcement officer can make a difference. This beginning chapter’s main focus is on the attitude of the officer and how such an attitude can have an immense impact on the lives of older people. Snyder informs the officer that it is important to have an appropriate attitude when managing the social, psychological and environmental needs of elderly individuals. The author acknowledges that by gaining education on this special cohort living in the cities the officer serves, he or she is enhancing his or her initial academy training and adding valuable knowledge that will make him or her a better public protector and servant. Chapter 2 begins with three learning objectives geared toward informing the reader about the physical changes humans endure as they age. This chapter is devoted to educating the law enforcement officer on the normal physical changes that occur with aging. This is vital education because in many precincts it is very common for law enforcement to serve a dual role by providing law enforcement as well as emergency medical services. The author divides the chapter into two specific focuses: aging in the body systems and common diseases among older people. The formatting and presentation of this chapter allows easy readability and a working knowledge that will allow law enforcement officers to confidently anticipate an elderly person’s response to various conditions unique to their age. Chapter 3 opens with six learning objectives centered on understanding the various psychological issues that may arise as people age. This chapter informs the reader of the possible maladaptive psychological developments that officers may encounter within the elderly population that are not necessarily typical of the aging process but are commonly present. Snyder includes detailed definitions, descriptions and various etiologies for each psychological issue, such as depression, suicide, alcoholism and drug abuse. In addition, he provides various solutions to better prepare the officer for these types of situations that arise while serving the aging community. This chapter tells the officer how to recognize, prevent or intervene and manage such issues in a humble, compassionate and dignified manner. Book Review e17© 2016 Macmillan Publishers Ltd. 0955-1662 Security Journal Vol. 29, 2, e16–e19 The fourth chapter begins with three learning objectives focused on how to most effectively communicate with the elderly, and special considerations that need to be acknowledged in order to be successful. Snyder opens the chapter by reminding the officer how vital effective communication skills are to the daily interactions between law enforcement and the public that they serve. I believe the most useful section of this chapter to be the attention it pays to the communication changes that occur as an individual ages. Snyder informs the reader that as the aging process occurs older people experience changes in vision, hearing and speech, which the law enforcement officer needs to be able to recognize and prepare for to have more successful encounters with this particular population. Chapter 5 lists eight learning objectives centered on understanding the elderly person as a victim and understanding the various crimes that the elderly population commonly fall victim to. This chapter is positioned at the half-way point of the text, and serves as a transition from the previous focus on the unique characteristics of the elderly to a focus on the victims and the unique considerations that need to be made. Snyder reiterates why it is so important for today’s law enforcement officers to have the knowledge and skills to be prepared to aid, serve and council this particular population. The chapter reviews the types of crimes older people may face, how the officer can solve each type of crime and what the officer can do to prevent the types of victimization older people experience. The sixth chapter guides the reader with six learning objectives concentrated on highlighting the multifaceted characteristics of elder abuse. This chapter is uniquely important because it provides the law enforcement officer with a more developed under- standing and grasp of elderly victims as actual human beings rather than just a statistic or growing cohort. This chapter begins by providing a list of definitions of the specific types of abuses and neglect an elderly victim may experience. This is helpful for the reader to be able to recognize types of abuses and the forms they can take. Such a skills set is vital to best serve this cohort because older people often experience more than one form of abuse that needs to be adequately recognized. Snyder includes some very successful in-depth descriptions and photographs of actual victims to prepare and illustrate for the reader the types of injuries to look for and be aware of in an investigation of this nature. The final chapter focuses on elderly people not as victims, but as criminal offenders. This chapter begins with four final learning objectives centered on learning how to understand older people who commit crimes and the types of crimes they commonly commit. The chapter outlines the learning objectives by first presenting a typology and profile of elderly perpetrators, theories of why older people commit crimes, special considerations regarding the arrest of such individuals, detaining and holding challenges, and finally ways in which law enforcement can prevent crimes committed by elderly individuals. The author notes that in order for the law enforcement officer to build a complete understanding and working knowledge of social gerontology, the officer must also include knowledge of elderly people as perpetrators. As a supplement to the already successful text, Snyder closes the book with three very useful appendices, letters A–C, which are designed to provide the law enforcement officer with resources to better aid and serve the aging population within their precinct. Appendix A, Aging Resources, provides a vast number of sources for law enforcement of agencies and organizations that serve the needs of the elderly community. These resources are listed alphabetically and by topic heading to provide for easy navigation. Appendix B, State Agencies on Aging, lists the contact information for all 50 states and United States Territories Book Review e18 © 2016 Macmillan Publishers Ltd. 0955-1662 Security Journal Vol. 29, 2, e16–e19 State Agencies for Senior Services. The contact information includes the most recent mailing addresses, phone numbers, fax numbers and Websites. Appendix C, Death Investigation and Older People, serves as a brief refresher to the law enforcement officer on death investigation and provides points to be considered when an investigation involves the death of an older individual. It is very clear that the target audience for David Snyder’s Elder Crimes, Elder Justice is those working within the law enforcement community. The writing provides insights into the unique considerations of the growing elderly population and teaches the law enforcement officer how to successfully manage, aid, serve, prevent and respond to interactions with the elderly in an effective manner. The text functions to provide the officer with the skills to compassionately and adequately serve this special cohort in order to create positive outcomes for the elderly person, for the law enforcement officer and for the community that he or she serves. The casual reader will find the text to have easy readability because of the clear and easygoing format; however, the focal issues of this text are almost impossible to solve independently, and purposefully deserve the attention of trained law enforcement officials. Nonetheless, Snyder’s writing provides a unique insight into the rapidly growing and often forgotten population of the elderly within our community. Elder Crimes, Elder Justice is a fantastically modern text that successfully provides the law enforcement officer with a vast knowledge base of the special challenges and considerations of our senior cohort. With this text as a supplement to initial academy training, Snyder is working to create a generation of better-prepared and responsive law enforcement officials to adequately serve our community. Marina Kelaidis Department of Criminal Justice, Weber State University, Ogden, USA Book Review e19© 2016 Macmillan Publishers Ltd. 0955-1662 Security Journal Vol. 29, 2, e16–e19 Elder crimes, elder justice 
work_unux6nrhpnbnxmtmjpbrnfig4q	----	Microsoft Word - TBrunoMSThesis.docx MARKET ENVIRONMENTAL JUSTICE: A CASE STUDY ON THE EPA ENVIRONMENTAL JUSTICE SHOWCASE COMMUNITIES PROJECT A Thesis by TIANNA MARIE BRUNO Submitted to the Office of Graduate and Professional Studies of Texas A&M University in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE Chair of Committee, Wendy Jepson Committee Members, Christian Brannstrom Ellen Feely-Kohl John Cooper Head of Department, David Cairns August 2016 Major Subject: Geography Copyright 2016 Tianna Marie Bruno ii ABSTRACT This research examines the state’s approach to environmental justice activities. I examine the alignment of state agency environmental justice goals with those of environmental justice community organizers. While scholars understand environmental justice as the spatial unevenness of environmental burdens and its political and social production, few have examined state interventions that claim to support environmental justice goals. This study provides an assessment of the weaknesses, strengths, and contradictions of state intervention on behalf of environmental justice communities in the United States. I will explore how the state attempts to address environmental injustice and the outcomes in the EPA’s Environmental Justice Showcase Communities project (EJSC). Findings indicate that the EPA EJSC project was race-blind and market centric. While environmental justice issues are inherently centered on race and structural racism, none of the language or goals of the policy discusses or addresses environmental racism. Rather, the EPA focuses on economic stimulation, decentralization of responsibility, and partnerships with industry through environmental justice policy. I make the argument that the EPA operates, albeit unintentionally, to create market environmental justice, which aligns more with the demands of the market than those of the environmental justice principles. iii DEDICATION To my family and community members in Port Arthur iv ACKNOWLEDGEMENTS I would like to thank my committee chair, Dr. Wendy Jepson, and my committee members, Dr. Ellen Kohl, Christian Brannstrom, and Dr. John Cooper, for their guidance and support throughout the course of this research. I also would like to express gratitude to the Human-Environment Research Group for all the guidance, advice, and input on this research. Thanks also to Mom, Yohanna, Joe, Jackee, George, Alsa, Aunt Debra, Aunt Lucy and Uncle Shorty for your love, encouragement, and support throughout this process. Thanks go to my friends and colleagues and the department faculty and staff for making my time at Texas A&M University a great experience. I also want to extend my gratitude to the Society of Woman Geographers. This research was supported in part by the Society of Woman Geographers Evelyn L. Pruitt National Minority Fellowship. Most importantly, I would like to thank the EPA staff members, Port Arthur community members, environmental justice advocates for being willing to participate in this research. v NOMENCLATURE CBA Cost Benefit Analysis CIDA Community In-Power and Development Association CRJ Commission for Racial Justice CSR Corporate Social Responsibility EJ Environmental Justice EJSC Environmental Justice Showcase Communities project EJSEAT Environmental Justice Strategic Enforcement Assessment Tool EJSG Environmental Justice Small Grants program EO 12898 Executive Order 12898 EPA Environmental Protection Agency FDA United States Food and Drug Administration FOIA Freedom of Information Act GCHC Gulf Coast Health Center GIS Geographic Information System GTEC Golden Triangle Empowerment Center HUD United States Department of Housing and Urban Development IWG Interagency Working Group NEJAC National Environmental Justice Advisory Council OEJ Office of Environmental Justice PCB Polychlorinated Biphenyl vi SEP Supplemental Environmental Project TABE Tests of Adult Basic Education TRI Toxic Release Inventory TSA Transportation Security Administration TWIC Transportation Worker Identification Credential vii TABLE OF CONTENTS Page ABSTRACT………………………………………………………………………… ii DEDICATION……………………………………………………………………… iii ACKNOWLEDGEMENTS………………………………………………………… iv NOMENCLATURE………………………………………………………………... v TABLE OF CONTENTS…………………………………………………………… vii LIST OF FIGURES………………………………………………………………… ix LIST OF TABLES…………………………………………………………………. x CHAPTER I INTRODUCTION…………………………………………………… 1 CHAPTER II BACKGROUND AND SIGNIFICANCE………………………….. 7 Environmental Justice……………………………………………………… 7 Environmental Justice and the State……………………………………….. 11 Discourse on EPA Programs……………………………………………….. 18 Political Ecology, State-Society Interaction and Neoliberalizing Nature….. 21 Neoliberal Subjectivities and Policy……………………………………….. 26 Private Sector, The State, and EJ Policy…………………………………… 32 Rise of Market Environmental Justice……………………………………... 36 CHAPTER III RESEARCH DESIGN……………………………………………... 38 Research Objectives and Methods…………………………………………. 39 Case Study: Port Arthur, Texas……………………………………………. 43 Data Collection…………………………………………………………….. 48 Data Analysis: Transcribing and Coding…………………………………... 53 Challenges and Positionality……………………………………………….. 55 CHAPTER IV STATE APPROACH TO ENVIRONMENTAL JUSTICE……….. 59 Background………………………………………………………………… 60 viii EPA’s Journey to the Environmental Justice Showcase Communities Project……………………………………………………………………... 60 Overview of the EPA Environmental Justice Showcase Communities Project……………………………………………………………………... 69 Themes in EJSC Regional Projects………………………………………... 87 Discussion…………………………………………………………………. 91 Conclusion…………………………………………………………………. 92 CHAPTER V STATE CREATION OF NEOLIBERAL SUBJECTS…………….. 94 Making Market EJ Subjects in Port Arthur………………………………... 95 Discussion…………………………………………………………………. 109 Conclusion: State as Convener and Adjudicator…………………………... 110 CHAPTER VI THE STATE AND CORPORATE ENVIRONMENTAL COMPENSATION………………………………………………………………… 113 State Responsibility and Corporate Compensation………………………... 114 Compensation in Port Arthur, Texas………………………………………. 115 Discussion: Failures of Compensation in Port Arthur, Texas……………... 124 Conclusion…………………………………………………………………. 128 CHAPTER VII CONCLUSION…………………………………………………… 130 Conclusions………………………………………………………………... 131 Recommendations…………………………………………………………. 135 Concluding Thoughts……………………………………………………… 137 REFERENCES…………………………………………………………………….. 139 APPENDIX A: FIGURES…………...……………………………………………. 151 APPENDIX B: ENVIRONMENTAL JUSTICE PRINCIPLES.………………….. 162 ix LIST OF FIGURES Page Figure 1: Power Dynamics between Neoliberal Culture, State, Industry, and EJ Community……………………………………………………………. 151 Figure 2: Map of Environmental Justice Showcase Community Westside Port Arthur, Texas………………………………………………………….. 152 Figure 3: Carver Terrace Fence-line Community near Motiva Refinery……….. 153 Figure 4: Downtown Port Arthur 1 (Proctor Street)…………………………….. 154 Figure 5: Downtown Port Arthur 2 (Proctor Street)…………………………….. 155 Figure 6: Screenshot of GTEC Intake Process………………………………….. 156 Figure 7: Gulf Coast Health Center……………………………………………… 157 Figure 8: Westside Development Center………………………………………… 158 Figure 9: “Thank You Motiva” Neon Sign……………………………………… 159 Figure 10: GTEC Storefront Sign………………………………………………... 160 Figure 11: EJ Policy CBA Rationale…………………………………………….. 161 x LIST OF TABLES Page Table 2-1: EJ State-Society Relations…………………………………………… 12 Table 3-1: EPA Documents……………………………………………………… 51 Table 3-2: Coding Themes………………………………………………………. 55 Table 4-1: EJSC Community Overview…………………………………………. 72 Table 4-2: Policymaker Language and EJ Conception…………………………... 89 Table 5-1: Decentralization of Responsibility and EJ Goals…………………….. 109 Table 6-1: Compensation Advances and Detracts from EJ Goals……………….. 123 Table 6-2: Outcomes of Compensation in Port Arthur, Texas…………………... 124 Table 7-1: Case Study Conclusion………………………………………………. 134 Table 7-2: Conclusion: Research Question……………………………………… 135 1 CHAPTER I INTRODUCTION “That’s Motiva. Motiva is the largest oil refinery in the Northern Hemisphere. But look at our downtown. Is it because we haven’t asked to be included in this wealth? We have to bear the brunt of them producing that much oil. But yet, how do we benefit from it? All we get is cancer. All we get it lung disease. All we get is bronchitis and asthma…” –Charlie (EJ1) Charlie is speaking of his hometown, Port Arthur, Texas. Port Arthur, a small town on the border between Texas and Louisiana, is not only location of the Motiva Refinery, but also a Valero refinery, Total Refinery, and many other chemical plants. Low-income and minoritiy populations on Westside of Port Arthur surround this industry laden area. This small town is also often discusssed in environmental justice literautre and media due to this proximity between the community and the industrial activity. Substantial air pollution, environmental degradation, poverty, and increased rates of respiratory issues and cancer are the typical topics of dicussion regarding Port Arthur. 2 But, Port Arthur is not unique in its circumstances. Communities of color with disproportionate environmental burdens, and thus health issues, are common across the United States and the world. These proximal populations are often referred to as fenceline communities in the environemtnal justice scholarship because they share a fence with industrial facilities (Lerner 2010). Some scholars have indicated that distribution of burdens is not the only issue in these communities. The lack of recognition and disenfranchisment of these populations regarding the environmental conditions under which they live is a larger issue, or rather the root of the issue of disproportionate burden. One finds that those populations most impacted by industrial facilities are the least involved in environmental decision-making or the benefits of such facilities, as Charlie highlights in his quote above. Cole and Foster (2001) suggest that there are three prevailing explanations for environmental inequity and inequality. First, some suggest that overexposure is linked to lifestyle choices. This implies that the residents of Port Arthur suffer from overexposure to harmful pollutants because they chose to live and work in that area. Second and related to the first explanation is the market dynamics explanation. This explanation postulates that minority neighborhoods are near waste and industrial facilities because that housing was cheaper. Or vice versa: industrial firms chose to locate in that area because the area had lower costs. Cole and Foster, along with other scholars, argue that the two previous arguments are, not only simplistic and naturalize inequality, but also they do not answer the questions of the underlying patterns and processes. The political and economic 3 processes and structures that allowed these communities to be marginalized are the target of much research. Many scholars find that inequalities in the decision-making processes are based on structural racism. These processes create the empirical explanations above. This research rests on the understanding that the injustices in environmental justice communities stem from racialized impacts of seemingly ‘neutral’ policies. Working in the context of the United States, I refer to colorblind, market-centric policies as ‘neutral’ policies. While intentional racism may not be evident in the language of the policy, the impact or outcome of implementation is racialized, thus recreating and reinforcing a market-oriented racialized society where the plight of environmental justice communities persists. The policies are found in many areas of the policymaking in the United States. For this research, I focus on official environmental justice policies from the United States Environmental Protection Agency (EPA). Because the EPA is tasked with creating, implementing, and enforcing environmental regulations, this agency naturally became the governing body concerning environmental justice policy. This task became formal in the 1990s. Events such as the Polychlorinated biphenyl (PCB) dumping in Warren County, NC and the United Church of Christ study that substantiated claims of environmental racism coupled with the lasting effects of the Civil Rights Movement forced the concept of environmental justice into the concerns of policymakers in the 1970s and 1980s. In 1994, the Clinton Administration created Executive Order 12898, which formally 4 incorporated environmental justice into the focus of the U.S. Environmental Protection Agency (EPA), because it mandated that all federal agencies consider environmental justice in their actions and policies. Since the creation of this document, the U.S. EPA has created many funding opportunities, such as grants for environmental justice organizations, to change the burdens under which these communities live. The entry point for my analysis of state environmental justice policy is the EPA Environmental Justice Showcase Communities project. While this was a national initiative, I concentrate on the EPA Region 6 project in Port Arthur, Texas. Through interviews, site and participant observation, and analysis of EPA program documents, I seek to understand what it means for a community to be an EPA Environmental Justice Showcase Community. In other words, I want to know if this EPA EJ program address environmental justice issues in the community. This research contributes to a broader examination of the state’s approach to environmental justice in the urban setting. Particularly, I investigate the question of whether state EJ policy addresses the broader EJ concerns of community organizers or not. The EJSC project in Port Arthur is used as a case study for state-society relations regarding environmental justice because this program was meant to be a blueprint for future environmental justice projects. Findings indicate that the EPA EJSC project was race-blind and market centric. While environmental justice issues are inherently centered on race and structural racism, none of the language or goals of the policy discusses or addresses environmental racism. Rather, the EPA focuses on economic stimulation, decentralization of responsibility, and partnerships with industry through environmental justice policy. I make the argument 5 that the EPA operates, albeit unintentionally, to create market environmental justice, which aligns more with the demands of the market than those of the environmental justice principles (Appendix B). I examine this discord by analyzing the ways in which EPA environmental justice policy aligns with political ecology’s characteristics of a neoliberalization. One such characteristic commonly discussed in political ecology neoliberalism discourse and present in the EJSC project is the individualization of responsibility. The decentralization of state responsibility was evident in the EJSC project through efforts to arm individuals with information to take action on their own and in the process of reconceptualizing the sources of pollution to a private issue. In chapter V, I explore the ways in which the EJSC project and neoliberal subjectivities align. I find that the trainings, environmental profile, and healthy homes project are acts of supplying individuals with information. I speculate that this arming of information creates the stage for community members to act as bootstrap citizens. Bootstrap citizens are ideal within a market-centric society because a market-based society functions under the false premise of equality (Davis 2007). One’s success is determined by your individual effort to work hard with in the system and change your circumstances. Further pushing forward market success, I find that much of the project focused on facilitating environmental compensation through environmental justice programs. This compensation can be seen through industry’s provision of community and health centers in exchange for fine deferments. Further, actions such as these work to promote good public relations for industry. Thus, these policies benefit industry in many ways. 6 But without change in regulation, enforcement or environmental decision-making process, the plight of environmental justice communities continues. A simple conclusion can be drawn that the EPA fails at producing effective environmental justice policy. But, it is worth noting that great effort goes into the creation of these projects from both EPA staff members and EJ activists. I argue that the concept of failure requires a bit of nuance. I argue that under the current market-based regime creating policy that strengthens regulation and shift power to marginalized communities are slim. It is worth noting that the EPA faces political and cultural backlash for most actions in the current American society. An example of this was seen in a recent presidential debate where a candidate referred to the EPA as the “Employment Prevention Agency”. Our market-centric culture criticizes political action that in any way impacts the economy. This is supplemented with industry capitalizing on ‘jobs v. environment’ discourse. These circumstances do no make it impossible for better regulation necessarily, but it does come at a high cost. 7 CHAPTER II BACKGROUND AND SIGNIFICANCE This study draws on two intersecting areas of human-environment scholarship: (1) environmental justice research and (2) political ecology theory. Environmental justice literature, not only identifies examples of environmental inequities and inequalities, but also there are scholars that engage the state’s response to cases of environmental injustice. I pull literature from political ecology because it provides a framework for analyzing the broader context in which environmental justice policy is created. This literature supplies the language and theory for analyzing state-society relations within the neoliberal context. This section, first, broadly reviews the field of environmental justice. I, then, move into a review of political ecology theory on neoliberalizing nature. These bodies are bridged to create a lens through which to assess environmental justice policy. This is an area of study that has been neglected in geographic literature, and to which I intend to contribute. Environmental Justice Environmental justice is the study of the inequity of environmental amenities and burdens and inequality in the environmental decision-making process based on race or income. This framework expands the discourse beyond simply an issue of distribution 8 or colorblind environmental issues. It supports that there is political, social, and economic inequality that manifests as environmental inequity. Environmental justice has expanded as an academic field since the 1980s after the Commission for Racial Justice study found the correlation between race and toxic waste facilities (UCCC 1987). Significant research in the field relies on quantitative approaches to validate or refine the causal mechanisms that lead to unequal distribution of environmental risk, pollution, and other burdens (Mohai et. al. 2009). Others employ qualitative or mixed methods to accomplish the same task of identifying instances of injustice (Bullard 1994; Lerner 2010). Still others use qualitative methods to examine the social, political, and economic processes at play in these communities to create the perfect storm for environmental injustice (Harrison 2014; Holifield 2004; 2012; Schlosberg and Carruthers 2010). There are four approaches or perspectives on justice that inform how scholars study environmental disparities in the literature are: distributional, participatory, recognition, and capabilities (Figueroa and Mills 2003; Nussbaum 2011; Schlosberg and Carruthers 2010; Walker 2012). The first refers to the uneven distribution of environmental burdens and benefits based on race and/or income. A classic example of “outcomes” of institutional and structural social inequality is the uneven distribution of industrial facilities in low-income and minority communities (Bullard 1994; Figueroa and Mills 2003; Lerner 2006; 2010). Participatory justice focuses on the unequal participation in the decision-making process as it relates to environmental aspects. Related to the participatory dimension is 9 recognition (Schlosberg 2004; Walker 2012; Young 2011). This dimension refers to the acknowledgement of groups when decisions are being made about their environments. The capabilities approach refers to the abilities that populations lose due to environmental burdens or other injustices (Nussbaum 2011). Examples of lack of recognition and capabilities can largely be found in the indigenous struggles literature (Schlosberg and Carruthers 2010). These dimensions of environmental injustice operate at many scales in the EJ scholarship. A significant amount of work addresses cases of environmental justice at local scales. Several authors describe local, small-scale case studies to ground and support the claims of environmental justice (Cole and Foster 2001; Lerner 2010). Not all environmental justice scholars use this approach. Over the past decade, environmental justice scholarship developed a globalized perspective (Low and Gleeson 1998; Okereke 2005; Walker 2005). Walker (2009) has examined globalization in two forms: horizontal and vertical. On the one hand, environmental justice movements around the world, while the U.S. may have influenced them, are contextualized. Further, these contextualized movements may have similar struggle though in different locations and contexts (Horizontal). On the other hand, environmental decisions made in one location have impacts around the world (Vertical). The Horizontal environmental justice addresses the multiple communities around the world that are struggling with a similar form of environmental injustice but in the context of their culture (Walker 2009). Horizontal globalization of environment justice 10 depicts a parallel in environmental justice movements around the world. An example to this form of globalization is the similarities between the environmental justice movement in the United States and the environmental justice movement in South Africa (Walker 2009). While in very different parts and different contexts of the world, the similar histories of social segregation and racial discriminations have resulted in similar struggles of the movement in their respective countries. Another example is the lack of indigenous participation in water governance in Chile and the same in South Africa. Vertical globalization of environmental justice, which is very relevant to the discussion of neoliberalism, underscores the global processes that connect different places around the world. In vertical globalization of environmental justice, the multiples places are not sharing a similar struggle; instead different geographic areas are linked through various policies that result in one area suffering more than another, such as international agreements and relations result in environmental injustices and inequalities (Walker 2009; Low and Gleeson 1998; Newell 2007). Trade agreements and the international trade of waste are highlighted in the literature as forms of vertical globalization of environmental justice. Newell (2007) holds that trade liberalization in Latin America through agreements such as NAFTA up to the light of this framework to expose the environmental injustices and inequalities that occur as a result of this international agreement. Low and Gleeson look at the international trade of waste and the communities, especially in India, that are affected by this trade in an unjust and inequitable fashion (Low and Gleeson 1998). In addition to policies such as trade agreements, actions taken by transnational corporations from Shell Oil to The Nature 11 Conservancy create policies in which one area, typically the global North, benefits and governs and another area (global South) suffers environmentally. These corporations implement policies through which environments are regulated and/or exploited by those who do not live in these environments (Katz 1998). This extension of the environmental justice framework to include transnational and global scales not only broaden and contribute to the literature on environmental justice, but also establishes a connection between the liberalization of the market and environmental justice (Newell 2007). Environmental Justice and the State The interface of the state and environmental justice communities emerged in the 1990s when the EPA began intentionally pursuing environmental equity and justice. The interaction between the state and communities is often discussed in a historical and empirical dialogue. Most EJ literature seeks to prove instances of injustice or assess the methodology of the environmental justice framework. EJ scholars, however, do not often engage in discourse about state- society relations. That is not to say that there has not been any previous work on state-society relations within the context of environmental justice communities. This section will review the ways in which previous literature has conceptualized these interactions. It would be overly simplistic to suggest that these works see the EPA- EJ community interaction as a binary: success or failure. Many works see this relationship fitting within multiple categories. Environmental justice literature discusses state-society relations within the following four themes: cooptation, highly regulatory, fragmented, or 12 good governance. This section reviews the current discourse in state-society relations regarding environmental justice, specifically EPA- EJ activists. Table 2-1: EJ State-Society Relations State-EJ Relation Summary Literature Coopted The State has changed the definition of EJ to something other than that of the EJ principles or that of EJ activists. Bryson 2012; Harrison 2011, 2014, 2015; Holifield 2004, 2012; Lee and Mohai 2012; Pulido, Kohl, Cotton 2016; Rahm 1998; Vajjhala 2010 Regulatory Under current regulatory regime, communities must prove discriminatory intent. Essoka 2010; Gordon and Harley 2005; Harrison 2011; Holifield 2004; O’Neil 2007 Fragmented The task of executing justice is split between the scales of government. Gordon and Harley 2005; Holifield 2012 Good Governance The State fulfills the goals set out by policy to address environmental justice. Burda and Harding 2014; Fisher 1995; Solitare and Greenberg 2002 13 Cooptation A predominant theme in environmental justice scholarship is that the state coopts environmental justice (Harrison 2015). Cooptation occurs when the state, along with other actors, transform environmental justice into something other than what EJ principles call for (Harrison 2015). Holifield provides an example of state cooptation through a case study in EPA Region 4. Holifield (2004) finds that a Superfund remediation project focused on “data analysis, public participation, and economic opportunity” (2004, p. 287). Community leaders were hired as remediation project managers. The language created a façade of empowerment while refocusing an environmental justice project on market and state initiatives. Placement of community leaders created an opportunity to implement neoliberal agents in the community. This language and placement of community leaders implied community empowerment, but Holifield argues that this approach swept the community into the neoliberal process under the guise of empowerment. Harrison (2011), similarly, finds that the state has an alternative conception of justice than that of EJ activists. Harrison (2011) examines the relationship between state pesticide regulation and the communities impacted by pesticides. Slightly different from Holifield (2004), Harrison (2011) suggests that the state itself has been coopted by industry, which leads to a state cooptation of environmental justice. Figure 1 (found in Appendix A) explains the dialectic between industry and state cooptation. In this instance, Harrison highlights the power of industry in a market-centric society. The influence of this power stretches well into the goals and language of environmental 14 justice policy. Industry possesses such political agency through lobbying power and existing in a culture the centers around economic stimulation. Within a neoliberal society, there exists a culture that prioritizes and depends on economy and the market to solve social issues and equalize (Roberts and Mahanti 2010). Under such a regime, policy cannot work in a way that hinders growth in the economy. Thusly, soft regulation of industry overshadows the goals of environmental justice activists. Many others provide similar arguments about the misalignment of federal action and goals of environmental justice activists (Beihler and Simon 2010; Bryson 2012; Harrison 2014, 2015; Lee and Mohai 2012; Vajjhala 2010). These authors particularly focus on the unjust outcomes EPA programs. Bryson (2012) and Lee and Mohai (2012) suggest that EPA’s Brownfield program, while spurring remediation projects and creating a cleaner environment, incites a process of gentrification in low-income and minority communities. Bryson (2012) argues that the state highlights that good ‘ripple effect’ of remediation, but does not give appropriate attention to the negative externalities of their policies. The agency suggests that healthy community members and environment will lead to a better local economy, which creates a positive feedback process. Bryson (2012) and Lee and Mohai (2012) hold that a these programs may results in some benefits, but may not be a net positive for environmental justice communities if they are eventually displaces by these improvements. 15 Regulatory The regulatory relationship between EJ communities and the state is two-fold. It can be found in the state bureaucratization of environmental justice and the legal interactions between the state and the communities. Regulation can be seen the state’s effort to bureaucratize environmental justice into a binary with thresholds. The state seeks to standardize the approach to environmental justice issues by setting EJ indicators and the use of GIS tools. Holifield (2012) suggests that the bureaucratization of environmental justice is an attempt to fulfill Executive Order 12898, which calls the EPA to create a standard to addressing environmental injustice. This is problematic because there is no standard in environmental injustice. A recurring argument within the environmental justice literature is that the relationship between the state and environmental justice activists so exceedingly regulatory that the state inhibits itself from achieving justice by bounding its abilities with legalistic regulations. The state essentially cannot reach into a sphere of equality or justice because it goes beyond the bounds of computations and technical analysis. Many scholars explicitly and implicitly argue that the sole purpose of the state is to serve as a regulatory body (Fisher 1995; Revesz 1999). The highly regulatory nature of the interaction requires an expert to represent a community. When a community is able to get legal representation, winning a case is very rare. Legal action most commonly taken by EJ communities is filing of Title VI Violations. Title VI of the 1964 Civil Rights Act outlaws discrimination in any federally funded action, program, or agency. Gordon and Harley (2005) inform the Office of 16 Civil Rights has never found “a federally funded entity has violated Title VI, nor has the EPA imposed a sanction of any kind against any entity” (p. 159). This suggests that it is highly unlikely that a community will win any case where there are allegations of environmental injustice. Much of the literature attribute the low success rate to the fact that a community must proved intentionality regarding environmental racism (Essoka 2010; Gordon and Harley 2005; Fisher 1995). Essoka (2010) explains why this is problematic. ‘The legally narrow 'discriminatory intent' standard now accepted for proving environmental injustice claims often cloaks gentrification and other EJ-related inequities within in a purely race-neutral economic context. But this approach does not consider the underlying history and institutional (hidden) character of racism’ (p. 311). Essoka (2010) critiques the current policy that places the burden of proof on the violated community. The burden of proof became officially placed after the 2001 Alexander v. Sandavol case. In this case, it was determined that disparate impact does not prove discrimination. One must prove intent of discrimination. With most cases of environmental injustice stemming from structural and institutional racism as opposed to individual racism, one would be pressed to find proof of intent (Cole and Foster 2000). Determining intent in structural racism is a difficult task because it occurs through seemingly “neutral” policies that have racialized impacts. Some in the literature 17 recommend that activists should steer away from environmental racism and focus on disparities based on class because this may bring more to the movement and decrease factions (Holifield 2004). Fragmented The EPA operates at two main scales: national and regional. Environmental justice initiatives originate from headquarters, which is the national office. Implementation is typically seen at the regional offices. These roles have swapped and returned as the EPA has changed administrations (Holifield 2012). Fragmentation in the state conception and approach to justice has stemmed from these cycles in the life of the EPA since the 1994 Executive Order 12898. Holifield (2012) and Gordon and Harley (2005) suggest that fragmentation stems from a lack of clear guidance from the top down. While few in the field make overt arguments about fragmentation, evidence of fragmentation is present in the literature. Gordon and Harley (2005) state that there not uniformity in the state approach to environmental justice because states have not received official guidance on state responsibilities on the matter. Holifield (2012) describes how there has been a fluctuation in which office takes the lead regarding addressing environmental justice issues. This fluctuation gave rise to fragmentation. Given the place-based nature of many environmental justice cases, further explicit discussion of fragmentation of state power could beneficial to the field and environmental justice communities. 18 Effective State and ‘Good Governance’ Some scholars find the state has set out and completed its environmental justice goals (Burda and Harding 2014; Fisher 1995; Solitare and Greenberg 2002). These scholars argue that the state has performed good governance over EJ areas and issues. Fisher (1995) provides suggestions on how EJ activists would be able to work the regulatory system in their favor. The other works do not state generally that the state is effective in addressing environmental justice. Rather, these works focus on particular programs and assess if they contribute to environmental justice. Burda and Harding (2014) assess the Superfund program through quantitative analysis. They found that the Superfund programs does provide more aid to low-income and minority communities. Solitare and Greenberg (2002), also using quantitative analysis, had similar findings regarding the Brownfields project. This paper determined the Brownfields project to be environmentally just because low-income and minority communities receive most funding from the program. This ‘good governance’ scholarship argues that these programs are empirically just based on a distributional definition of justice. Discourse on EPA Programs Previous literature on non-environmental justice EPA programs support that the EPA has failed to fulfill Executive Order 12898. Holifield (2012) holds the same conclusion. Holifield (2012) suggests that there have been three waves in the EPA’s attempt to fulfilling EO 12898 and standardize its approach to environmental justice. The first wave begins with Clinton’s executive order. Before the executive 19 order, environmental justice was more similar to environmental racism (Holifield 2012). The executive order brought low-income populations into the environmental justice discussion by overtly mandating that federal agencies address environmental and human health effect in minority and ‘low –income’ communities (EO 12898). The inclusion of low-income populations is what marks Holifield’s first wave. Dissimilar to the first wave, the second wave was marked by the inclusion of all communities as environmental justice communities. Under the George W. Bush administration, environmental justice took on a different meaning. Holifield quotes Administrator Whitman, “…the environmental justice program is not an affirmative action program or a set-aside program designated specifically to address the concerns of minority communities and/or low-income communities” (Carroll and Weber 2004). This statement expresses the distinction between the first and second wave. The end of this approach was to disconnect environmental justice from race and socio-economic stance. This break from race and income status also broke the EPA definition of environmental justice from that of the Executive Order of 1994 (Holifield 2012). The third wave returned to the environmental justice definition of the executive order by reincorporating race and income. This wave was also marked by a change in the scale of approach. The task of formulating a means of identifying environmental justice communities was shifted to he national office and away from the regional offices (Holifield 2012). This shift is a source of fragmentation. The standardized national approach to environmental justice is exemplified in the GIS tools that created thresholds for environmental justice indicators, such as classification of minority status or low- 20 income status. Holifield speculates that the conflicts that the agency is facing in using the EJSEAT tool could result in a second redefinition of environmental justice depending on what indicators are used to identify environmental justice communities (Holifield 2012). Holifield also points out that the use of the census tract data for the GIS tools does not consider the place-based processes that are at play in environmental justice communities. This standardization renders environmental justice placeless. Holifield (2012) places the EPA environmental justice efforts into a context and organizes the process that the EPA has gone through to standardize its approach to environmental justice. I argue that there is another process occurring concurrently with the stages to standardization that environmental justice is going through in the EPA. This placelessness and deracialization of environmental justice in the EPA during these waves created the perfect storm for market based and controlled environmental justice efforts -- or market environmental justice. The market would prove to be a solution to a placeless, faceless issue that focuses on impacts because jobs and revitalization of the business sector would seem to be able to solve this problem. I propose that the EPA has entered a fourth wave or stage in its journey to standardize environmental justice. This stage is mark by this market environmental justice. According to Harrison (2014), there is a rift in the state’s and mainstream agri- environmentalists conception of environmental justice and that of environmental justice activists. While EJ activists hold an equity based conception, California EPA and mainstream environmentalists have a market-based conception of justice. One of 21 Harrison’s main arguments is that environmental injustice issues not only stem from the conventional sources of environmental injustice, but also from the conception of justice. A study on federal government programs has the ability to identify this trend on a broader scale and contribute to a necessary shift in environmental justice literature that deviates from the traditional case studies of injustice discourse. A qualified discussion of the state and environmental justice should incorporate elements from political ecology. Political ecology supplies a broader political economic discourse that is left out of case study environmental justice literature. The next section will, first, discuss history and values of a neoliberal state and review political ecology literature related to the state’s transformation of the human relationship to nature. Political Ecology, State-Society Interaction and Neoliberalizing Nature In recent history, there has been a transition from a Keynesian model of political ecology a new marketization logic called neoliberalism. Neoliberalism began in the Thatcher/Reagan era, pivots on the idea that the market can respond more effectively that the state to some of the world’s issues that Keynesianism failed to ameliorate, such as depletion of resources or environmental degradation. The neoliberal logic is that competition will result in only the best services for people and a means of rationing resources through market logic. The role of the state is to support markets, enforce contracts, and facilitation decentralization. There is a consensus in the geographic literature that rollback neoliberalism entails government downsizing, fiscal austerity, and reform in public services (Peck 22 and Tickell 2002; Bakker 2004; Prudham 2004). Moreover, there is a subsequent ‘rollout’, which refers to the reregulation. Reregulation concerns the soft regulation that is created after deregulation (Peck and Tickell 2002). Neoliberalism operates to enhance competitive globalization (Peck and Tickell 2002). With a free market and government support of the market, the firms and services most fit to serve the desires of the people will survive. While this approach began in the highly industrialized world, namely the United Kingdom and the United States, it has spread to many countries around the world (Bakker 2005; Peck and Tickell 2002). Many scholars argue that this approach has been the source of many social transformations and injustices (McCarthy and Prudham 2004; Heynen and Robbins 2005). Neoliberal policies have transformed how humans related to their environment; and the reordering of the environment transforms society (Heynen and Robbins 2005). This idea supports that society establishes the human relationship to nature and that it can be changed. This relationship to nature is the lens through which we perceive nature. The analyses over the past decade argue that the neoliberal approach has been a mechanism that has modified man’s relationship to nature. This literature collectively looks at how the modification of the human relationship to nature is reflected in these processes under neoliberalism. As Heynen and Robbins (2005) suggest, neoliberalism provides the context that we interact with the nature and other humans; it sets the way in which we perceive nature. A goal of much of this literature is to prove how neoliberalism is an 23 environmental project. The main argument to support this concept is that the discourse on how neoliberalism transforms environmental governance (Heynen and Robbins 2005; Himley 2008; McCarthy and Prudham 2004). Environmental governance refers to who has access to and control over resources (Himley 2008). The governing body makes the decisions about management of the resource. The way nature is governed reflects how nature is perceived. Governance of natural resources under neoliberalism is given to those who have access to the market and agency within the market. If we view nature as an economic good, this entails that it can justly be withheld from those who cannot pay for it and that market competition will weed out environmentally irresponsible corporations. Castree (2008) suggests that there are four reasons for this form of governance under neoliberalism: 1) free market environmentalism, 2) owning nature for profit exploitation, 3) justification of environmental degradation, and 4) the avoidance of ‘wasted’ resources. This form of governance implies that nature is viewed as an economic good. Neoliberal nature literature has organized ideas on how the neoliberal political approach is an environmental project through the two forms of market environmental governance: privatization and enclosure. Privatization refers to the transition from state control to private sector control of a resource or good (Bakker 2005). This transition entails that a public good becomes controlled, usually with pricing. It is enrolled in market relations. There are many examples in the literature of the failures and contradiction of privatization under the neoliberal approach (Mansfield 2004, McCarthy 2004; Heynen 2005 Prudham 2005; Bakker 2010, 2013, and many more). 24 Privatization refers to the transition from state control to private sector control of a resource or good (Bakker 2005). This transition entails that a public good becomes controlled, usually with pricing. It is enrolled in market relations. If an individual or population has an inability to participate in the purchase of this good, whether due to citizenship or lack of resources, then those resources are withheld from that group (Bakker 2010). There are many examples in the literature of the failures and contradiction of privatization under the neoliberal approach (Bakker 2010; McCarthy 2004; Prudham 2005). Prudham (2005) presents the failure of privatization under the neoliberal political approach in Walkerton County in Ontario, Canada. In this neoliberalization, the lack of regulation that stemmed from government downsizing, fiscal austerity, and public service reform resulted in a water contamination crisis in the county. In her discussion of the human right to water, Bakker (2010) suggests that water privatization cannot justly supply water to all people because there will be groups that cannot afford privatized water. Also, some people will not be serviced water because they live in an economically poor region that will not bring profit to the water companies. While these works illuminate the failures of privatization, Bakker (2005) points out that although privatization may fail in certain geographic areas that does not necessitate that this approach is a failure in all cases. In the England and Wales example that Bakker discuss, privatization of water resulted in clean water for the municipality. These successes and failures under neoliberalism address another rationale behind neoliberalism, which is market environmentalism. 25 Enclosure is a mode of privatization. It refers to the enclosing of an environmental process or natural resource that was formally a common good shared by a population (Heynen and Robbins 2005). Enclosure implies that a certain group is restricted access the resource or environmental process, which gets at another aspect of the change in the perception of nature (McCarthy and Prudham 2004). Fitting within this discussion is Harvey’s accumulation by dispossession. This is the collection of resources for survival (Harvey 2006). The issue that rises is that one has to exclude or dispossess certain people in order to build up resources. Government actors and social powers direct the process of appropriation of the surplus (Harvey 2006). In neoliberalizing nature, nature is appropriated by economic means. Within the neoliberalizing nature literature, there are many example of enclosure of commons (Bakker 2007; Mansfield 2004; Robbins and Lugibuhl 2007; St. Martin 2007). Bakker (2007) discusses the transition from commons to commodity on a global scale as opposed to specific cases as these previous articles have. In this article, Bakker argues that governance of the commons is a strong counterargument to privatization (Bakker 2005). The neoliberalizing nature literature teases out the many ways in which neoliberalism causes reshaping of the relationship between man and nature. Other works in political ecology suggest this is not the only relationship that is molded to fit the neoliberal ideal. Inherent to the success of neoliberalism is the shift in the state- society relationship. The following section focuses on the state formations of subjects through social policies, including environmental justice policy. 26 Neoliberal Subjectivities and Policy Central to the success of the market is shifting responsibility away from the state to individuals. The state must produce individuals that do not depend on the state or social programs for provision, thus taking responsibility for their provision and protections. I assert that the state has furthered this agenda through environmental justice policy. In other words, environmental justice programs also create neoliberal subjects. While neoliberal subjectivities are widely discussed in previous political ecology literature, there are no examples in the environmental justice literature that explore the state creation of the neoliberal subject through formal environmental justice policy. With few exceptions, there is not a large amount of analysis of neoliberal subjectivities within environmental justice literature (Holifield 2004). Holifield (2004) analyzes the neocommunitarian approach the EPA Superfund project in Georgia. Holifield informs that while the neocommunitarian approach seems on the surface to be empowering the community, it actually produces neoliberal agents through the waste site remediation managers. This analysis focuses on the Superfund program. While the Superfund program does have environmental justice implication, the EPA does not consider it a formal environmental justice program. In other words, the creation of that program is not rooted in the agency’s goal to of “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income” (EPA 2015). This distinction is worth noting because it tells us what programs are overt attempts to establish environmental justice. Currently, there are not many analyses of formal EPA environmental justice programs (exceptions: Harrison 2015, Vajjhala 2010). 27 Within that small amount, there are not yet any that discuss the production of neoliberal subjects. While this is true of environmental justice literature, state creation of the subjects is not a new topic. Human geographers have long written about the state’s production of neoliberal subjects. This literature makes it clear how the neoliberal state must first manipulate the conduct of its citizens so that it aligns with the neoliberal agenda (Bondi 2005, Ekers and Loftus 2008). Prior to neoliberalism, citizens depended on the state for protection through regulation and provision through social programs (Peck and Tickell 2002). The neoliberal regime desired to phase in an era of rollback neoliberalism, which is marked by fiscal austerity, weakening regulation, and privatization (Prudham 2004). Marston and Mitchell (2004) explain that the transition in policies was accompanied by a shift in the notion citizenships and the responsibility of the state to the citizens. The success of these market-based policies hinges on a shift in responsibility from the state to the individual (Jepson and Brown 2014). The neoliberal citizen, also called the bootstrap citizen, refers to the state production of self-governing individuals. Armed with facts, these individuals can basically do lots the things that the state once did for them (Maniates 2001). As shown in Holifield (2004), policies that create this shift in the individual are rather subtle and are seemingly well intentioned (O’Reilly 2006, O’Reilly and Dhanju 2014). O’Reilly (2006) provides a similar case. O’Reilly (2006) examines the how neoliberal subjects are created under the guise of empowerment and development policy. Women in Rajasthan are tasked with transitioning their village to a new commoditized water regime, effectively shaping the village women into neoliberal 28 agents as well (O’Reilly 2006). Not only does the crafting of the neoliberal subject access citizens through well- intentioned social programs, but also everyday practices (Brand 2007, Jepson and Brown 2014). Jepson and Brown (2014) analyze the production of neoliberal subjects through the purchasing of bottled water in South Texas, which faces water insecurity issues. Processes such as the privatization of water fit within the rollback neoliberalism framework. These examples from the literature discuss many of the methods through which the neoliberal state creates neoliberal subjects in the rollback phase. An interesting concept that the literature explores well is the creation of the neoliberal citizen during rollout neoliberalism. Distinct to rollout neoliberalism is soft re-regulation (Peck and Tickell 2002). This soft reregulation can be seen in public health and other recent social programs. Conventionally, social programs are thought of as fiscally liberal programs established to address social issues in a community. Welfare policies in this era superficially appear the same. Under a more critical lens, it can be seen that the impact of these well-intentioned programs aligns well with the goals of rollback initiatives. These social programs provide the state access to produce subjectivities. Brand (2007) suggests, “the neoliberal premise of ‘less government’ does not necessarily mean fewer state institutions and less government programmes, but, rather, more governmentality.” Under rollout neoliberalism, social programs may still exist, but they are set to promote the self-governing citizen that does not rely on the state, but takes responsibility for their circumstances and their future. State responsibility subsides, and personal responsibility becomes the center for discourse 29 (Feldman 2011). Brown and Baker (2012) explain this process of emphasizing personal responsibility in policy through their analysis of recent health care policies. Under a market-based regime, clients are taught to take responsibility for themselves and their health rather than burden the health care services. Rather than address the broader social issues that play into an individual’s health, health care policy places the responsibility on the individual to take exercise and make wiser choices (Brown and Baker 2012). Biehler and Simon (2010) have a similar finding in their paper on indoor political ecology. Pest management programs are aimed at placing the responsibility on individual households to make better decisions about pest management, such as having a cleaner house or choosing the correct pesticide. These healthy homes programs that purport this form of personal responsibility neglect the larger injustices in which these communities are located (Biehler and Simon 2010). These programs that are meant to address social issues effectively transmit a new common sense. The new common sense is that there are things that you can do to make your life better, and you are responsible for getting those things done. These reviewed works allow for an understating of how the neoliberal subjectivities are subtly produced through well-intentioned social programs. I seek to incorporate a neoliberal subjectivities discussion into the analysis of domestic environmental justice programs. The discussion of how EJ policy creates neoliberal subjectivities shows are new facet that the state employs to further individual responsibility. This study brings a new area of policy to light by analyzing formal environmental justice policy. Further, it can speak to the continued failure of the state to 30 address the concerns of environmental justice communities through the production of subjectivities. Subject of Color This previous literature makes it clear that individualism is inherent to neoliberal governance. Inherent to privatization is individual ownership of property. Inherent to enclosure is exclusion. A prominent thread in the political ecology literature is the creation of citizens that take responsibility for their circumstances and their future in this new form of equality. ‘Equality’ under neoliberalism stems from the idea that everyone has equal opportunity and the market selects winners and loser. Thus, there are no social forms of discrimination that are at play and historical discrimination is no longer a factor. Roberts and Mahtani (2010) state: “Within a neoliberal theorization of society, the success of the individual is directly related to his/her work output. Modalities of difference, such as race, do not predetermine one’s success as each individual is evaluated solely in terms of his or her economic contribution to society. What becomes clear is that this ideal relationship is not equally realized by all members in society.” As Roberts and Mahtani clearly indicate, there is an underlying presupposition of equality in the neoliberal citizen discourse. It suggests that if we are all responsible for our circumstances and futures, then if an individual is unsuccessful, then there is no one 31 to blame beyond the individual. These ideas downplay and discredit any claims of racism. With this, it can be seen that neoliberalism and racism are coproduced and simultaneously push each other forward. The equality purported masks “racially coded economic disadvantage and reassigns identity-based biases to the private and personal spheres.” (Davis 2007). While there are structural issues that factor into the circumstances of marginalized communities, the focus on individual responsibilities shapes wider society’s view of these communities, reinforcing racialized stereotypes. Mansfield (2012) highlights a similar issue. The FDA ignored racial variability in her case study, which led to an actualization of racial difference. The EPA on the other hand acknowledged race, but offered a solution that placed blame and responsibility on individuals, rather than broader issues. Thus, the contradiction: neoliberal policies produce race and reinforce racism by deracializing social issues. As Roberts and Mahtani (2010) also point out, there is a lack of literature that discusses how neoliberalism shapes a race is experienced and viewed. While there are some that look at the racialized implications of neoliberalism, the literature has not directly engaged with way neoliberalism constructs race and deepens racism. This lacuna is even larger one in the environmental justice literature. I seek to address this gap and suggest policy reforms through my discussion of market-based environmental justice policy. 32 Private Sector, The State, and EJ Policy In light of liberalization, policies have leaned towards market-based solution for environmental injustice. A market-based solution must align with the needs and desires of the market. Thusly, I will discuss the relationship of the private sector and environmental justice communities within a neoliberal society. To depict that state policy aligns with the goals on industry, one must lay out the goals of industry regarding social and environmental issues. Role of the Private Sector The shift in governance under neoliberalism from the state to the market increases the responsibility of the private sector. That not only concerns to the responsibility of corporations geographically proximal to environmental justice communities, but also those involved in vertical globalization of environmental justice discussed in Section 1. Corporate social responsibility (CSR) refers to this recent wave of corporations’ policies that seek to address social issues that may be related to their actions. Business ethics literature provides the majority of the assessments of CSR. Gouldson (2006), in agreement with Castree (2008), describes CSR and its genesis, “…in an era of globalization and liberalization, the governance of corporate behavior often depends not on the often limited regulatory capacities of the state but on discursive struggles between corporations and their stakeholders.” We see that these policies are not simply created in compliance to state regulations, but rather they are an attempt to become more palatable to consumers and investors. CSR policies typically 33 guarantee things such as community employment or environmental protection actions. The nature of CSR policies is determined by a multitude of factors. Gouldson (2006) goes further to say, “[CSR initiatives] can be driven by personal values and corporate cultures, by the presence of a ‘business case’ for CSR, by the demands of market actors such as investors, trading partners and consumers, or by the demands of civic or social actors...” This quote teases out one of the complicated aspects of CSR. The responsibilities, in this case, are not necessary determined by an external, centralized entity (the state). They are also not determined solely by the community, but rather many stakeholders shape the expectations of CSR policies (Monsma 2006). This ambiguity in who sets corporate expectation leaves a large opportunity for power dynamics to come into play. It is possible that in some cases investors will likely have a stronger voice in shaping the policy than a local community. The lack of regulation of these policies creates a void in accountability. This gap in accountability gave reason for reregulation, which Castree (2008), among others, identifies as another characteristic of neoliberalism. State Alignment to the Private Sector Contrary to popular belief, industry may not always be out to swindle a community. It is evident from CSR discussion that this may not be in the best interest of firms due to branding and marketing. Some scholars describe this as green washing. There is a façade of community improvement for the purpose of branding. Soft state 34 regulation that aligns with good marketing and provides a competitive edge is conducive to green washing in the private sector. Further aligning with private sector management, state policies are generated through an economic framework: cost-benefit analysis. The signature cost-benefit analysis (CBA) of the state was mandated, also by President Clinton, under the Executive Order 12866 in 1993, which was later reaffirmed by President Obama in 2011 in Executive Order 13563. These documents call for regulatory agencies to quantify the costs and benefits of any regulation and adopt regulation where benefits justify its costs. This policy language restricts the state to a neoliberal framework. The broader failing of the state to has been attributed to the rise of neoliberalism that has weakened the state due to the fiscal austerity, deregulation, and privatization (Peck and Tickell 2002; Prudham 2004). This weakness fosters a dependence on industry for funding and power. This dependence is what Harrison (2011) describes as a cooptation of the state by industry. This relationship manifests as a soft and unenforced regulation on corporations and scantly funded social and environmental programs. Under this regime, the market is charged with filling the role formerly taken up by the state. It is important to note that the state does not become nonexistent in this case; it just works along the needs of the market. Castree (2008) lists market proxies as a characteristic of neoliberalism, “Market proxies in the residual public sector (that is, the state-led attempt to run remaining public services along private sector lines as ‘efficient’ and competitive businesses).” 35 In Chapter VI, I analyze the ethics behind state-led social programs that are ‘run along private sector lines’. Particularly, I give attention to state-controlled material compensations from industry for environmental burdens within the context of environmental justice communities. Cohen and McCarthy (2015) discuss something similar to this in their analysis of the rescaling of environmental governance under neoliberalism. This rescaling has resulted in concrete artifacts – “highly material, highly elaborated, with competing metrics, methods, certifying authorities, labels, and more” (Cohen and McCarthy 2015). EJ Policy: Private Sector and The State EJ scholarship on corporate social responsibility investigates whether or not firm CSR policies contribute to more justice in communities. One such work is Monsma (2006). Monsma (2006) argues that CSR policies may result in more action taken by corporations than federal policy can do because of the shareholders and other stakeholders. Bloomfield (2014) has a similar finding. Whereas, Gouldson (2006) suggest that is it possible that even within CSR policies one can see the impact of discrimination with lower standards in poorer areas. It is clear that there is some discussion of CSR and environmental justice. But there is no literature in the state’s struggle with cost-benefit analysis and environmental justice within the literature. 36 Rise of Market Environmental Justice The overlaying of these factors forms the appropriate lens through which to analyze the United State’s current environmental justice policy. The policy enact is created and implemented by a federal agency under a neoliberal regime or what Essoka (2010) calls a cloak of “a purely race-neutral economic context” that “does not consider the underlying history and institutional (hidden) character of racism”. The methods employed to address injustice are regulated private sector provisions and creating responsible citizens in marginalized communities that are suffering a disproportionately large amount of environmental burdens and/or some form of environmental disenfranchisement. Because of the multifaceted nature of the injustice these communities are facing, I suggest that the framework through which scholars assess that state’s actions in environmental justice communities must be equally multifaceted. It must incorporate the state’s agenda and abilities within a market-based society, while comprehending the intersecting injustices faced by environmental justice communities, which include (but are not limited to) racial injustice, economic injustice, and health disparities. I attempt to establish such a framework by coupling the knowledge of state- society relations from the neoliberalizing nature literature with the ethics and principles of environmental justice literature, resulting in market environmental justice. Market environmental justice refers to the state’s attempt to address environmental injustice through market measures. Literature on market environmental justice will empower the marginalized communities that are impacted by the neoliberal approach to 37 environmental governance and social justice. Most of the literature in neoliberalism in geography focuses on the environmental impacts, but there is not much literature in the how the state engages in creating social justice under a neoliberal regime. Market EJ has the ability to do both. Further, it is imperative to have a market environmental justice discussion because current state environmental governing bodies, i.e. EPA, employ policy that aligns with the market and attempts to direct populations perceived as socially deviant, due to race, income, unemployment levels, into the mainstream. This is seen through a focus on job trainings and the creation of a green economy in the recent EPA environmental justice policy. In this study, I analyze the state’s attempt to address environmental injustice while existing within a market-based society. In the following chapters, I will explore execution of environmental justice policies in a Texas community. Particularly, I focus on how this policy seeks to create neoliberal subjects and how the state facilitates private sector provision of compensation. 38 CHAPTER III RESEARCH DESIGN Scholarly literature commonly describes the relationship between the state and the environmental justice movement and activism as antagonistic (Harrison 2011; 2014; Holifield 2004; Pulido et al 2015). Yet, the state has adopted, at least discursively, the language of justice goals. Therefore, my research analyzes how the state frames and pursues an environmental justice agenda, paying attention to how it aligns or subverts community-based environmental justice goals. To accomplish this, I examine the US Environmental Protection Agency’s (EPA) Environmental Justice Showcase Communities project in Port Arthur, Texas. My project frames federal environmental justice actions in broader political economic processes to describe how the state, which operates under a neoliberal cost-benefit logic, attempts to incorporate and address unquantifiable issues, such as injustice or equity, into its policy. I conducted interviews and archival analysis to examine the relationship between the state and society within the larger discursive space of environmental justice. In this chapter, I outline research objectives, describe the study region, and specify the methods used to collect and analyze data. 39 Research Objectives and Methods My research question is: How does state environmental justice policy advance or detract from the goals of environmental justice movement and organizers? The working hypothesis is: State agencies advance a market-based definition of environmental justice and suite of policies and practices through narrowly defined projects that ultimately undermine goals of environmental justice community organizers. The research objectives are designed to address this broader question of state-society relationships within environmental justice struggles using qualitative methods commonly practiced in human-environment geography research. Qualitative research allows investigation of the processes that build environmental justice policy and the processes incited by environmental justice policy. Understanding the state-society relations surrounding environmental justice policies mandates the use of qualitative methods because these methods grant engagement with respective perceptions that cannot be grasped outside of interaction with the groups that I am studying: the state agencies and society. I am able to document and interrogate more effectively through interviews, ethnography, and other qualitative methods. Interviews with community organizers provide research with the marginalized perspective that is often left out of the discussion or formal documents, which makes qualitative methods the most fitting for this study. Interviews allow researchers to gather more in-depth information that may not be available for documents or other data. Valentine (1997, 111) describes interviews as “sensitive and people oriented, allowing interviewees to construct their own accounts of their experiences by describing and 40 explaining their lives in their own words.” An issue that has been raised in human geography, among other fields, is that of local knowledge versus expert knowledge. Many marginalized communities are subjects of research, but are left out of the nexus of research and policy decisions (Corburn 2007). The firsthand knowledge of community members has great value in understanding environmental injustice; therefore, an answer to my research question required interviews with community organizers about the creation, process, and impacts of environmental justice policy. Identifying how the state envisions Executive Order 12898 within a market- based state necessitates critical engagement with archives and those involved and impacted by this policy. While a superficial reading of the documents provides one with factual information, coding and critical analysis through a lens provided by previous literature allows one to gain an understanding of this policy, the goals, and the impact. I conducted archival research, participant observation, and 14 semi-structured interviews with EPA staff members and environmental justice community organizers in Port Arthur, Texas, an EJSC project site. These data and methods are standard in the political ecology and environmental justice fields qualitative data has the ability to provide evidence for and substantiate the claims made in this field (Harrison 2014; Holifield 2004; Holifield 2012). My study aims to accomplish three objectives: Objective One: Examine how the EPA defines and executes environmental justice goals. 41 I used three methods to examine how the EPA defines and executes environmental justice goals. First, I developed an online survey for EPA staff. Online surveys are less conventional, but have become more common recently. These online surveys allowed me to collect more data than the conventional in-person surveys, although they do come with their disadvantages, such as low response rates and an inability to validate all responses (Evans and Mathur 2005; Wright 2005). Second, I conducted semi-structured interviews with EPA staff in regional office and federal office administrators. These interviews gave insight into how EPA staff members conceptualize environmental justice and environmental racism and their perspectives on the efficacy of their positions within the state agency. Third, I collected EPA documents related to environmental justice actions and decisions. These documents were collected though web search and Freedom of Information Act requests sent to the EPA Headquarters, Region 5, and Region 6 offices. Objective Two: Compare how the EPA supports or challenges market-based initiatives to remedy environmental justice claims and concerns in the communities in the EPA Environmental Justice Showcase Communities project I pursued this objective by analyzing EPA archives, interviewing EJSC collaborators and community organizers, and observing EPA and community interactions. Documents contained comments that highlighted the market-based trends in the EPA Office of Environmental Justice. Interviews with EJSC collaborators and community organizers provided information on how the state’s definition of 42 environmental justice is reflected in projects and rolled out in the community. I also conducted participant observation in community meetings sponsored by the EPA concerning environmental issues. I took detailed field notes while attending this meeting. I also participated in breakout groups at this meeting. Objective Three: Describe the outcomes of the EJ Showcase Communities project a case study community Document collection, interviews with community organizers, and site observation provided information on the impacts of this program in their respective communities. Interviews with environmental justice community organizers allowed me to access to local knowledge and information on how the project was implemented and if community organizers considered the project a success. The interviews provide narratives and explanations that help describe, from the community’s perspective, positive project outcomes and if the project expected goals. I visited the community to observe some of the project outcomes. I wanted to know if the EJSC cleaned Brownfield sites or directly addressed and remedied EJ claims remedies through better environmental regulatory enforcement. This material outcome is important for assessing the general effectiveness of the EJSC project. I make this claim because material environmental improvement, not only provides conspicuous impact of policy, but it also would likely have a more powerful impact on community relations with the EPA than with a purely discursive change would. Moreover, the site visits also allowed me to examine the social processes behind the program and projects, such as who cleaned the 43 site and who has a say in what is built there in the future. Interviews granted me insight into the material information gathered through sit observation. Case Study: Port Arthur, Texas The entry point for my analysis of how the state seeks to address environmental injustice was the EPA EJSC project. In 2009, the US EPA set aside $1 million for this two-year project, which aimed to “help alleviate environmental and human health challenges” in ten urban environmental justice communities (EPA 2012a). There is one selected community per EPA region. Regional EPA staff selected the communities based the on previous experience and existing projects. In this case, the EPA collaborated with, at least, seven Port Arthur non-profit organizations with history of community and grassroots activity (EPA 2011b; Lerner 2010, 73). Further, the EJSC project allowed the agency the opportunity to create a framework for the standardization in the agency’s collaborative approach to environmental justice issues, which was a main goal of my research. I chose to examine this EPA program because it aims for standardization extends the impact of my findings because these same approaches will likely be used in future environmental justice policy endeavors. In other words, the EJSC project was meant to be an example of what future interactions between the state and environmental justice communities. The findings of my study, not only speak to the case of Port Arthur, but also many other places and scales. I also wanted to study a case region in close proximity because of my qualitative research design required several trips. 44 I focus on the EJSC project in the EPA Region 6, Port Arthur, Texas Westside community. While the project aimed to focus on Westside Port Arthur, many projects applied to the city in general. Also, due to the permeable nature of air, water, and land pollution, environmental impact is not exclusive to Westside. Particular to Westside is poverty, unemployment, and social justice issues that will be discussed in this section. I purposefully chose Port Arthur out of the other Showcase Communities based, not only on its proximity, but also this community is commonly discussed in environmental justice literature (Barzyk et. al. 2011; Lerner 2010, 73-98; Sullivan et. al. 2008). The focus on financial issues in the Port Arthur project also made this community ideal for my study, although the presence of these patterns were not discovered until after the study had already begun. Port Arthur is a small town on the Texas-Louisiana border. While founders intended to create a tourist resort town, Port Arthur has been an industrial center since 1901 when the famous oil geyser of Spindletop, not far from Port Arthur, was discovered (Storey 2010). The Port Arthur Canal allowed the world access to the region’s oil resources and products. Many oil companies set up shop in the area due to the proximity to oil activity and the port (McDonald 2008). The town became the second largest source of refining by 1914 (Storey 2010). Currently, Port Arthur is a petrochemical hub. There are three major refineries in Port Arthur, along with numerous chemical plants (EIA 2014). It may seem that with this level of oil and gas activity Port Arthur should be a wealthy community, but that is not the case. After social unrest that resulted from the Civil Rights era and unemployment stemming from automation in the oil industry, much of the population of 45 Port Arthur moved to suburban areas and retail businesses followed (McDonald 2008). Port Arthur suffered an economic downfall (Echols 1999, Storey 2010). 30% of the population in Port Arthur lives below the poverty level (U.S. Census 2010). At the time of the EJSC project, the city unemployment rate was at 11.2% (BLS 2015). The community of focus within the city, Westside community, had a 25% unemployment rate at the time of the project according to an EPA official. The environmental and social justice issues in the Westside Community of Port Arthur stem from the history of the city. Like most towns in Texas, Port Arthur comes out of a history of racial divide. Echols (1999) makes this point about Port Arthur, “blacks and whites in Port Arthur lived strictly separate lives… Segregation was the rule; indeed, to avoid integrating the high school, the town built another one outside city limits.” Although the federal government outlawed segregation in the 1950s, Texas and other southern states resisted (De Leon and Calvart 2010). Port Arthur did not roll out complete integration until the late 1960s (McDonald 2008). But, racial divisions have persisted in Port Arthur since this time. This division some suggest is where the environmental justice issues in Port Arthur stem. The railroad tracks were and are the dividing line. East of the tracks is the white side of town, and west is the black side of town. Much of the industrial activity was placed on the west side of the tracks during the times of official residential and other forms of segregation, and this is where many of the industrial facilities still are. According to an EPA staff member on the EJSC project in Port Arthur, there are six 46 chemical and refining facilities on the Westside of Port Arthur. One is Motiva, which is the largest refinery in North America (EIA 2014). EPA Region 6 selected the Westside Community because it is considered a low- income, minority fence-line community that borders many industrial facilities, such as the Motiva oil and gas refinery (EPA 2011e; Lerner 2010, page 73). At the time of EJSC community selection, 44% of the population of the community lived below the national poverty line (EPA 2012g). The geography of Port Arthur, not only explains some of the race relations in the community, but it also explain another risk of the community, which is hurricanes. Communities in the Gulf of Mexico are constantly impacted by hurricanes and tropical storms. Poverty increases the lack of resilience in the community. In addition to environmental burdens, there are brownfield sites and concern about the economic vitality of the area. Poverty is not the only challenge Port Arthur residents face in their everyday life. Extreme health disparities exacerbate community’s distress. Port Arthur suffers from very high asthma and elevated cancer risk compared to statewide statistics. A study on the health impacts of proximity to industrial facilities in Port Arthur found that “80 percent of those residents he interviewed in West Port Arthur reported cardiovascular and respiratory problems compared with much lower levels (approximately 30 percent for cardiovascular and 10 percent for respiratory problems)” (Lerner 2010, page 82; Morris et. al. 2004). Local knowledge suggests that seafood quality is threatened by environmental pollution. Residents, who traditionally consume local seafood and fish as an important 47 part of their diet, voiced concerns about the contaminated fish and wildlife in one community meeting with the EPA (EPA 2012g, 2). Health issues suspected to be associated with the presence of these facilities, compounded with high unemployment and poverty rates, among other factors, brought the EPA to title Port Arthur an Environmental Justice Showcase Community. Figure 2: Westside Community in Port Arthur, Texas Source: http://www3.epa.gov/environmentaljustice/grants/ej-showcase-r06.html 48 Data Collection I use qualitative methods to examine the discursive and material impact of environmental justice policies and programs in local organizations and communities. I conduced interviews, collected documents, and observed how EPA staff and community organizers interact with and receive each other through participant observation in a community meeting sponsored by the EPA. Participant Selection The process to select participants differed between community organizers and the EPA staff. I selected community organizers based on previous involvement with EPA environmental justice programs and self-identification as an ‘environmental justice advocate.’ I discovered most groups discovered through EPA document analysis. Others organizations were snowball interviews. I identified the groups by participation in a community meeting or recommended to me from other interview participants or community members. I selected initial contacts because they are noted in previous environmental justice literature. I selected EPA staff members based on affiliation with official environmental justice programs, particularly the EJSC project. Most connections with EPA staff interviews were snowball interviews. Because the project rolled out five years prior to my research, many staff connected to the project had moved to other positions or were no longer with the EPA. While EPA headquarters led the initiative for the EJSC project, headquarters delegated the project selection and implementation to the regional offices. 49 Due to the regional manner of the EJSC project, many community organizers and EPA staff were not very familiar with the project in Port Arthur. I recruited EPA staff members that have a connection with environmental justice, community outreach, or any knowledge of the EJSC project. I reached out to staff in the Region 6 office as well as the national headquarters office in Washington D.C. Interviews To fulfill objective one, which examines how the EPA defines and executes environmental justice, it is imperative that I describe the perspective of EPA staff members on goals and efficacy of environmental justice policy. I interviewed four EPA staff involved in the selection and enacting of EPA environmental justice policy office, with particular attention to their role in the EJSC project. While the questions may be similar to the online survey, the semi-structured interview allowed for fuller responses by EPA staffers who were more closely connected to the EJSC project. I further addressed how staffers and administrators envisioned the EPA’s role and their role in relation to EJ goals, the definition of environmental justice and methods to correct environmental injustice. The themes of these interviews included: definition of environmental justice, causes and solutions of environmental injustice, and justification for selection of EJSC project and project communities. I interviewed EPA staff, collaborators in the EJSC projects, and environmental justice community organizers in the respective communities to understand how the EPA supports or challenges market-based initiatives to remedy environmental justice claims 50 and concerns in the project communities, which is my objective two. The questions address following themes: identification of EJSC programs in the community, justification of methods employed in communities, alignment of EPA EJ claims and community claims; and perceived effectiveness of EPA EJSC policy. Community organizers explained how they understand and interpret the environmental justice claims of the community and if the market solution posed by the government could address their claims and concerns. Environmental justice community organizers were asked questions regarding the environmental justice issues that persist in their community and the efficacy of the program in addressing the goals of the program in a semi-structured interview. Also, I interviewed the managers of facilities where the EPA had conducted EJSC sponsored activities, such as the job training facilities. I addressed the following themes in these interviews: efficacy of methodology of EPA, environmental change in the community, and environmental governance in their community. Documents In order to gather institutional information about the EJSC project, I procured EPA documents through the Freedom of Information Act (FOIA) process and exploration of EPA online archives. I downloaded public documents from online EPA sources whereas FOIA documents are mostly from the regional offices in Region 5 and Region 6. These documents include EPA press releases regarding environmental justice, program analyses, tracking tools, event agendas, and other documents. I also collected press releases and other public documents, such as EPA environmental justice fact 51 sheets, regarding environmental justice actions and goals from the EPA. Table 3-1 contains the documents that have been collected from EPA regional and national offices. These documents allowed me to identify the goals of the EPA’s environmental justice policy. Also, information regarding selection processes and specific projects within the EJSC project were found in these documents. Table 3-1: EPA Documents EPA Office Region 5 and Region 6 Offices National Office-- Headquarters Position in Policy Cycle 18 Documents types 6 Document types Policy Formation Community project announcement and Fact Sheet, EJ Showcase Community Action Plan and Checklist, project maps, Implementation plan Press releases, Staff memos, Administrator speech transcriptions, EJSC Implementation Plans Policy Implementation Project update (2010 and 2011), Award Certification; Port Arthur Environmental Profile Results, EPA tour trip summaries, EPA- community meeting notes Environmental Justice and Sustainability Reference Deskbook Policy Assessment Program analyses, tracking tools, program overview, Port Arthur EJ Initiative Plan and Workgroup Accomplishments, Lessons Learned report, Yearly reports, project overview, Successes report EJ Consolidated Reporting Form 52 Participant and Site Observation While this study was not of the appropriate length to perform true ethnographic research, I employed methods typical in ethnographic studies. Most common in ethnography is participant observation, which is when the researcher integrates oneself into the community being studied. Participant observation method was chosen because it provides first-hand information of community happenings. This approach also has proven to be effective in previous studies on the alignment of stakeholders’ claims and concerns (Curran and Hamilton 2012). Some ethnographic works suggest that a true ethnography is no less than a year of observation and integration into the community (Duneier et. al. 2014). The length of the Master’s research precluded this time commitment. However, I made four field visits. I attended one community meeting. In addition to the community meeting, I visited the environmental amenities, such as parks and waterways to interact with the community and gain a sense of whether community members were aware of the EJSC project. Further, I asked questions about the water and air to gather an understanding of the community’s outlook on their environment. This was the case with community activities. Whereas with community meetings with the EPA, I made it know that I was a graduate student that does research on the EPA and environmental justice communities. I participated in all the activities at the community meeting as if I was a community organizer. At parks and other outdoor activities, I participated as a community member. I did not practice deception. If asked, I did not withhold my identity or project information. As previously discussed, Duneier et. al. 53 2014 informs that true participant observation will occur over years. Thus, these methods are only a modification of true participant observation. In addition to participant observation, I conducted site observation. While for the Port Arthur community, there were no goals in the project that would directly produce physical changes in the community, such as an urban agriculture initiative. Instead, I investigated the outcomes of the project. I conducted a visual assessment of the Port Arthur community to assess whether environmental conditions were indirectly improved through the outreach, documents, and job trainings that were produced by the EJSC project. While redevelopment is discussed in the Port Arthur project, the EPA did not take action in this effort beyond creating assessments on the Brownfield and Superfund sites in Downtown Port Arthur. These assessments provided information on the contamination of the land, and what measures the city could take to remediate. I took photographs and extensive field notes while conducting these site observations. Data Analysis: Transcribing and Coding I transcribed and coded all documents, interviews, and field notes. I entered documents in coding software, Atlas.ti, to highlight the reoccurring concepts and the goals in regards to environmental justice, following other researchers (Minkler et al. 2008). Other works in qualitative research employ this software for similar purposes Coding methodology stems from that suggested in Webler et al 2009. Initial codes were created based on characteristics of neoliberal reforms found in neoliberalizing nature literature. Preliminary analysis of documents, such as EJSC press releases and project 54 updates, indicated three themes: (1) Green jobs (20); (2) Green Economy (10); and (3) Green Development (12). I replicated the analysis with other documents, from both the national office and regional offices, to examine definitions as well as compare and contrast between levels within the agency and existing projects. Interviews were transcribed from beginning to end, including interviewer’s questions. Following transcription, interviews were coded in coding software ATLAS ti similar to archival analysis. Statements in these transcriptions coded based on the three following criteria: interview question response, preliminary codes in document analysis, and new facet to a community definition of environmental justice. The resulting codes of the community organizer interviews were lack of jobs, revitalization, race, and lack of enforcement. I transcribed field notes from participant observation analysis in coding software, ATLAS.ti, to highlight patterns and identify themes as well. The themes that arose from this objective were compared to those of the state. Specifically, the aim is to determine whether the community stakeholders support the use of the market as a root and solution to environmental justice concerns. I also transcribed and coded the site observation field notes in ATLAS.ti. Photos from the site observation can be found in Appendix 1. 55 Table 3-2: Coding Themes Code Theme Examples # Example Green Jobs 21 “About $50K will be allocated to initiate green job training” –EPA 2009 Green Development 12 “To build partnerships… with potential resources that can be deployed in the particular communities to achieve the programs aims such as environmental and human health protection, particularly in the green development arena.” – EPA 2010 Green Economy 10 “A green economy would substantially reduce the pollution linked to these deadly health issues. A green economy would also reduce the economic burdens of hospital visits, medical bills and lost work and school days – especially in environmental justice communities where these problems are at their worst.”- EPA 2009 Environmental Compensation 9 “You run into the political machine that industry uses, local jobs and all that. Holding those jobs hostage against the communities right to clean air. It’s a big mess.” –EJActivist2 Challenges and Positionality A common debate within qualitative research is the value and impact insider or outsider status on one’s research. Some contend that an insider can gather more in-depth information because they do not need a gatekeeper, a community member that vouches for researcher and allows research access to community. Insider status allows one to be privy to more information and one has a deeper contextual understanding (Ladner 1973). Others argue that outsider status has privilege as well (May 2014). Community 56 members may not assume that an outsider knows that things that an insider may know, thus the outsider can gather more information that participants may not have mentioned to the insider. Being a Black woman with close family living in Port Arthur, it can be said that I have insider status in the Port Arthur community. Further, my status as an environmental justice scholar gave me further insider access with community organizers. Community organizers were open to establishing relationships and conducting interviews with me. As mentioned, a possible complication with insider status is that participants may not tell you things because they assume you already know. I did find that when discussing the racial layout Port Arthur, many respondents assumed that I was already very familiar with the dynamics. When asked to further explain the racial layout of Port Arthur that resulted from segregation, participants were willing to give me more information. With the EPA, I was an outsider. Procuring interviews and building relationships with the EPA was not as easy as with community organizers. I was not about to schedule any interviews with EPA staff until I had the opportunity to attend an EPA community meeting in Port Arthur, where I was able to connect with multiple gatekeepers. Even with respondents helping as gatekeepers, finding contacts at the EPA was difficult. There was a low response rate to recruitment emails. The low response in recruitment emails brought me to the conclusion that an online survey would not yield very many results. 57 I developed a semi-standardized online survey using the university- licensed Qualtrics software. The survey addressed several themes: (1) staff role in program; (2) program city selection process; (3) major mechanism to change circumstances in environmental justice communities. In addition, I included questions that allowed respondents to reflect on agency definition of environmental justice, their own view of EJ and role in EPA, how the agency addresses claims of environmental injustice, and the types of remedies the agency can provide in relation to environmental injustice. The survey had Likert scale questions, free response, and multiple answer options. I planned to send this survey to EPA staff who developed, managed, or continue to manage the EJSC program. Due to a low response rate from EPA staff regarding interviews, this survey was not incorporated into the study. Interviews scheduled in-person had a 100% response rate while any EPA staff contacted without an in-person interaction, did not respond to a recruitment email or responded, but did not follow through with an interview. Thus, I removed the survey from my methods regarding the EPA. Further, with some staff, I had to be vetted by public relations staff. Instances such as this highlight my outsider status with EPA staff. I argue that if I had more time to become more acquainted with EPA staff, I may have received more responses from EPA staff. Not only does my positionality play a role in my relationships to interview participants, it also impacts my framing of questions and interpretation of responses. My epistemology as a critical geographer also shaped my interpretation of data. I actively 58 acknowledged my inherent bias during my analysis process. With this, I was as reflexive as possible during my research process. The time restraints of a master’s thesis presented a challenge in my data collection as well. More time may have allowed me to gain more trust and connection within the EPA staff community. Further causing a delay in this research process is the timeline regarding FOIA requests. FOIA requests sent to the regional offices were answered within a semester. FOIA requests sent to EPA headquarters took over a semester to get addressed. Additionally, time constraints played a major role in transforming this project from a comparative study to a case study. Originally this project was a comparative study between two EJ Showcase communities: Port Arthur, Texas and Milwaukee, WI. While it would have been possible to accomplish one trip to each city, there would not be any sort of in-depth connection with either with such as approach. By scaling the project down to a case study, I was able to build relationships and connections in the Port Arthur that would not have been possible otherwise. 59 CHAPTER IV STATE APPROACH TO ENVIRONMENTAL JUSTICE This chapter, focusing on Objective 1, broadly examines the EPA’s engagement with environmental justice and the origins of the Environmental Justice Showcase Communities project to determine how the agency defines and executes EJ goals. In this chapter, I discuss bureaucratic and technical process that a federal agency uses to address environmental justice. Focusing on the Environmental Justice Showcase Communities project, this chapter investigates the process used for selection of communities, which will display this bureaucratic process. Also, status updates and results of the efforts of this project in these communities are presented. In this chapter, I extend Holifield’s framework that outlines three waves in EPA environmental justice policy. Adding to Holifield’s work, I indicate how the state is incorporating market environmental justice in its path to create a uniform strategy to environmental justice. The third and most recent wave in his paper returns to the original focus of the 1994 Executive Order 12898 on low-income and minority populations, but there is a shift away from regional protocol towards national uniformity in the approach (Holifield 2012). This research will indicate if this is a partially accurate classification of our current wave and where the Environmental Justice Showcase Communities Project fits in this discussion. 60 Background A recent environmental justice initiative of the EPA is the EPA Environmental Justice Showcase Communities project (EJSC). In 2009, the US EPA set aside $1 million for this 2-year project, which aims to “help alleviate environmental and human health challenges” in 10 communities (EPA 2012). The US EPA regional officials selected the communities in their respective regions. The Environmental Justice Showcase Communities include: Bridgeport, CT; Staten Island, NY; Washington DC; Jacksonville, FL; Milwaukee, WI; Port Arthur, TX; Kansas City, Kansas/Kansas City, MO; Salt Lake City, Utah; Port of Los Angeles/Port of Long Beach; and Yakima, WA. The project provides these ten selected communities with $100,000 each to contribute to initiatives to mitigate environmental justices concerns. EPA’s Journey to the Environmental Justice Showcase Communities Project The Environmental Justice Showcase Communities project is not the beginning of the EPA’s attempt to create a standardized approach to environmental justice. This process began in when certain events, such as the dumping of PCBs in Warren County, brought national attention to the uneven distribution of environmental burdens in the United States in the 1970s. Many factors, such as the Civil Rights movement, the CRJ study that discovered the connection between community race and environmental burdens and the Warren County case combined to drive many environmental justice grassroots movements that pushed environmental justice into the concerns of the EPA. 61 In light of the many grassroots movements bringing attention to environmental inequities and coining terms, such as environmental racism, the EPA began to incorporate environmental justice into its agenda (Holifield 2012). This incorporation began around 1990 when the EPA created an Environmental Equity Workgroup (EPA 2012b). Soon after the creation of this group, the EPA established the National Environmental Justice Advisory Council (NEJAC) (EPA 2012b). NEJAC is composed of representatives from academia, community groups, industry/business, NGOs, state/local governments, tribal governments/indigenous groups, and one designated federal government representative (EO 1994). This council submits recommendations to the EPA on how they can address environmental justice in the United States. The EPA commissioned NEJAC in 1993. Soon after, President Clinton signed Executive Order 12898. This executive order further incorporated environmental justice into the focus of the EPA because it mandated that all federal agencies consider environmental justice in their actions and policies. Executive Order 12898 spells out how federal agencies should go about fulfilling this calling. First, federal agencies must formulate a means of “identifying and addressing disproportionately high and adverse human health and environmental effects of its programs” (EO 1994). In addition to this, EO 12898 mandated the creation of an interagency working group (IWG). The EPA should bring this group together, and it should consist of various listed federal agencies. The IWG has to advise other federal agencies on how to address environmental justice, assist in research on environmental 62 justice, have public meetings, and create environmental justice projects that show that the IWG is working on environmental justice (EO 1994). The Order also states that every federal agency, those in the IWG and not, should create an environmental justice strategy. This strategy must delineate the programs, policies, planning and public participation processes, enforcements, and regulations regarding human health or the environment that should be changed in order to encourage environmental and human health regulation in environmental justice communities, facilitate more public participation, advance environmental justice research, and examine and identify uneven distribution of environmental amenities and burdens (EO 1994). The Order goes on to explain that agencies should address quality of fish and wildlife for consumption in these communities, which related to the environmental and human health of the community. The environmental and human health is a key theme in Executive Order 12898. Another frequent theme in the executive order is public participation and how federal agencies should minimize the obstacles to public participation in minority and low-income communities. Brownfield and Superfund Programs Prior to and since the Executive Order, the EPA has facilitated many programs that while they have environmental justice implications, they are not official environmental justice programs. I refer to those programs listed under the title environmental justice programs and explicit environmental justice goals as official EPA environmental justice programs. While the EPA does not specify their Superfund or 63 Brownfields program as a part of their environmental justice initiatives, there is an abundance of literature that analyzes the EPA’s progress (or lack there of) with environmental justice by the outcomes of these programs. The Superfund Act, created in 1979, was an action to clean up toxic waste sites (EPA 2014). Literature on the Superfund program found that race was an important determinant in the location of Superfund sites (Stretesky 1998; Maranville 2009). O’Neil (2007) found that the signing of Executive Order 12898 did not contribute to more equitability in the Superfund program. This lack of environmental justice in EPA programs was found in the Brownfields program as well. The Brownfields Program, which began in 1995, was an action to redevelop abandoned contaminated sites (EPA 2012). Whereas Solitare and Greenburg (2002) find that the Brownfields program is environmentally just, many other scholars found otherwise. Much of the literature suggests that Brownfields redevelopment has unintended consequences, especially gentrification (Essoka 2010; Bryson 2012; Lee and Mohai 2012). The literature suggests the cleanup and rebuilding on Brownfields sites creates a paradox for community residents. This literature for the most part finds that these programs did not move towards creating more environmentally just communities in the US. This literature addresses the question of whether these EPA programs are conducive to environmental justice and brings attention to the environmental justice implications of these programs. However, it does not look at formal EPA environmental justice initiatives, such as the EJSC or EJSG programs, to 64 assess the success or failure that the EPA is having with in their battle against environmental injustice. Supplemental Environmental Program In this section, I will analyze market-based environmental justice through a utilitarian framework. I focus on this framework because it translates into the bureaucratic language of the state. In other words, I employ a utilitarian approach in order to align with the typical cost-benefit analysis that the state uses for assessment and policymaking (Revesz 1999). I find that this approach show that the current policy fails to bring justice to these communities. The signature cost-benefit analysis (CBA) of the state was mandated, also by President Clinton, under the Executive Order 12866 in 1993, which was later reaffirmed by President Obama in 2011 in Executive Order 13563. These documents call for regulatory agencies to quantify the costs and benefits of any regulation and adopt regulation where benefits justify its costs. These mandates shape a justification for the state’s utilitarian approach to environmental justice policy. Other than programs, such as trainings and community meeting, environmental justice policies revolve around the idea of environmental compensation, thus coopting justice. This version of environmental justice shifts away from language of race or equality and focuses on compensation. In the literature, the corporation acts as the compensatory body. I find that in the compensatory notion of justice has expanded into the state’s approach to environmental justice. 65 Some projects within the EJSC initiative demonstrate the state’s transition to compensation as a means of justice. While the EJSC project was a one-time program in only ten communities, compensatory projects are commonplace in the EPA through its Supplemental Environmental Project (SEP) program. The SEP program, which some aspects of the EJSC project imitated, is an example of this reregulation. The SEP policy allows corporations that have violated EPA standards to “voluntarily agree to undertake an environmentally beneficial project related to the violation in exchange for mitigation of the penalty to be paid” (EPA 2015). Through this process, the EPA can hold corporations accountable to compensating communities for environmental violations in a way that harmonizes with market efforts. Similar to CSR, SEP projects consist of concrete compensations for environmental burdens. Other examples of SEP projects include financial assistance for low-income housing assistance, finances for particulate matter monitoring, improved technologies for emission detection, etc. (EPA 2015). The nature of an SEP project is determined by the EPA, who usually has ties to the community in some way. In my research, SEP projects are discussed in a favorable light and described as very successful by both EPA staff and most community activists. It is worth noting that the community activists considered SEP projects favorable in comparison to what they feel the circumstances would be like if not for the EPA. Within the current political institutions, the EPA is the only political agency doing anything for them. Because of this, they have a sense of gratitude, but they still feel like a system of injustice persists. 66 It is arguable that a system of justice based on quantified costs and benefits may find that that environmental justice policy repay community members for the environmental burdens that they suffered due to an instance of emission violations. The reasoning is as follows: corporation inflicted harm on the community. That harm is corrected by providing a good to the community. The corporation suffers a cost (fine) in response to the benefit accrued in the form of excess environmental emissions. Thusly, it seems that justice has been served, as depicted in the rationale in the Appendix Figure 11. So far, this discussion has focused on instances of emission regulation violation. I have yet to address the broader issue of environmental justice – the uneven distribution of environmental burdens and benefits, along with uneven access to the decision- making process, based on race or income. While the regulatory process described above may mitigate further emission violations, environmental justice works with a broader temporal scale. Environmental justice communities constantly live in a space where there are emissions, within EPA standards or not and typically from multiple sources. With this being that case, how does one make up for the costs that the 67 community has been enduring over a large period of time, especially when it stems from some sort of discrimination? Further, how does one quantify the cost of being treated unequally? Both Clinton’s EO 12866 and Obama’s EO 13563 acknowledge that aspects such as equity, human dignity, fairness, and distributive impacts are “difficult or impossible to quantify”, in which case a qualitative discussion is permitted (EO 12866, EO 13563). It is evident that cost-benefit analysis in not appropriate for EJ discourse that goes beyond simple distribution issues. Matters such as environmental racism or classism cannot are outside the scope of costs and benefits because these topics deal with basic human rights and equal access to quality of life. Formal Environmental Justice Programs While there is an area of research on the Brownfields and Superfund programs, there is a dismal amount of literature that discusses the EJSC project or EPA environmental justice policy in general, with one exception (Vajjhala 2010). There are very few programs that the EPA formally classifies as environmental justice programs. The EJSC is one. Another is the Environmental Justice Small Grants (EJSG) program. The EJSG program provides funding support to organizations and individuals that apply and are working towards environmental justice in their community. Grants from this program are $20,000 or less (Johnson 1996). With the use of GIS, Vajjhala (2010) assesses the effectiveness of the EJSG program in assisting communities with a high amount of environmental burdens. Vajjhala (2010) looked at where the EJSG funds are awarded and data from Toxics Release Inventory (TRI) to 68 perform this assessment. The work found that only a portion of these grants is being awarded to community indicated in the TRI data (Vajjhala 2010). Also, the number of toxic releases had been increasing in counties that were receiving grants from this program (Vajjhala 2010). As can be gleaned from Executive Order 12898 and the aims of the EJSC project, a main goal in regards to the EPA and environmental justice has been to create a standardized approach to environmental justice. Bureaucratization of environmental justice is intrinsic to this process of standardization. The EPA stated that a goal of the EJSC project was to, in essence, create a uniform blueprint in their method to environmental justice. The ten communities were test sites for the creation of this blueprint. The idea is that the successes in these communities will be recreated in other environmental justice communities in the future (EPA 2010c). This standardized approach is epitomized in the use of GIS tool to select communities. With the use of GIS tools, the regions can overlay standard indicators, which create uniformity across the nation identifying environmental justice communities. Holifield critiques this approach. The author scrutinizes EJSEAT, a GIS tool used by the EPA to identify environmental justice communities (Holifield 2012, 2014). A main issue with the use of these indicators is that they are formed using census data. But, there are environmental justice populations that do not participate in the census, such as migrant workers and indigenous populations (Holifield 2012). This may speak to why the focus of the EJSC project was urban areas, with the exception of Yakima. 69 Overview of EPA Environmental Justice Showcase Communities Project When Administrator Lisa Jackson first took office, she sent a memorandum with seven priorities for the EPA, one of which was environmental justice (Jackson 2009). The other priorities included action on climate change, air quality, safety of chemicals, cleaning up our communities, protecting waters, and partnerships between the state and tribal communities. Administrator Jackson stated in a speech to community representatives from around the country that with President Obama in office and herself in office, there was a unique opportunity to bring environmental justice back into the conversation of the environment (EPA 2009b). With Administrator Jackson’s move to shift environmental justice back in to the focus of the U.S. EPA, the Environmental Justice Showcase Communities Project was launched in late 2009. The agency chose this project because it employed a tactic that engaged the community and grassroots movements for environmental justice in specific areas (EPA 2011b). The EPA describes this project as a community-based approach in attempting to ameliorate environmental justice issues in these areas (EPA 2012a; EPA 2010c; EPA 2012b). In addition to utilizing a collaborative approach, the EJSC project allowed the agency the opportunity to create a framework for standardizing the agency’s collaborative approach to environmental justice issues, which was a main goal of the EJSC project. The process used for standardization is similar to that process used in the Brownfields Showcase Communities Project, which was a blueprint for this project (EPA 2010c). There were guidelines for the implementation of the project in order to create this institutionalization of EPA environmental justice efforts. 70 The implementation strategy took form at two scales: national headquarters office and the regional offices. Headquarters’ strategy included four steps: development of a Showcase Communities program, identify projects in each region, explore a specific set of tools for coordinated place-based work, and establish a reporting framework (EPA 2010c). With this strategy, EPA Office of Environmental Justice headquarters called upon the ten regional offices around the United States to select a geographical area in which to implement the EJSC project. Proposals from each region discussed the communities, a work plan, and partnerships (EPA 2010c). After approval, the Office of Environmental Justice (OEJ) would then distribute the project funds to the regional offices (EPA 2010c). Locations with previous environmental justice project in progress were preferred for EJSC selection (EPA 2010c). This preference stems from the increased ability generate results in these communities. Moreover, the area selected should have “high priority environmental justice concerns” (EPA 2010c). The following fall within that category, according to the agency: multiple, disproportionate environmental health burdens, population vulnerability, limits to effective participation in decisions with environmental and health consequences, opportunities for multiple federal, state and local agency collaboration, with a focus on green development as environmental justice concerns (EPA 2010c; 2012a). Office of Environmental Justice (OEJ) provided examples of possible projects to consider for the EJSC project. This list of examples included: geographic based targeting, clean-up and remediation efforts, job training and other training, etc. 71 Executive Order 12898 calls for the EPA to bring together other agencies together and oversee their process of creating EJ efforts. This project allowed the EPA to build partnerships with other federal agencies, achieve results in these environmental justice communities, and integrate new and old models into one initiative (EPA 2010c; 2010d; Holifield 2012). These broad intentions played out differently in the specific location of the project. Every geographic area had a specific work plan that should include community and federal agency input. Allocation of the project funds within these communities was based on concerns of future collaborations and partnerships. The implementation plan stated that the program will work in one location, include an interagency partnership, have clear goals, and be a one-time effort (EPA 2010c). The regional offices used a variety of methods to select the Showcase Communities, but mainly the offices relied on GIS tools for selection. The use of GIS also contributes to the standardization of the EPA approach to environmental justice because settings for the layers (minority percentage, caner risk, etc.) chosen can be replicated in future projects. 72 Showcase Communities Table 4-1: EJSC Community Overview EPA Region City Selection Criteria Project Task 1 Bridgeport, CT Environmental burdens, health burdens, and previous partnerships Remediation, New pier, and job training 2 Staten Island, NY GIS overlay of environmental, health, and quality of life concerns Contamination testing 3 Washington, D.C. GIS overlay of environmental, health, and quality of life concerns Trainings and partnerships 4 Jacksonville, FL GIS overlay of environmental, health, and quality of life concerns Aquatic contamination survey and partnerships 5 Milwaukee, WI GIS overlay of environmental, health, and quality of life concerns Remediation and trainings 6 Port Arthur, TX Previous partnerships Trainings, environmental profile, and partnerships 7 Kansas City, MO and KS “Target area for Healthy Homes initiative” Trainings and remediation 8 Salt Lake City, UT Environmental burden and previous partnerships and data Partnerships and trainings 9 Port of Los Angeles and Port of Long Beach, CA Environmental stressors Partnerships and new regulation 10 Yakima, WA Health Stressors and groundwater issues Assess quality of private wells *This table: lists the communities for each region, community selection criteria, and project tasks. 73 Region 1: Bridgeport, CT In Region 1, which includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, and 10 indigenous tribes, the East End community in Bridgeport, Connecticut was selected as its Environmental Justice Showcase Community (EPA 2014). At the time of selection, 63% of the Bridgeport population was classified as people of color. Beyond having the four primary environmental justice concerns that OEJ spelled out, the East End area of Bridgeport was chosen because there a previous project at work in the community, meaning that the community already had ties to the EPA Region 1 Office (US Fed News 2009). This community had previously received funds and services from the EPA Brownfields project (OSEE 2013). East End Bridgeport possesses many contaminated and abandoned sites that were formally industrial facilities that manufactured weaponry during World War II (EPA 2010d) (OSEE 2013). Numerous sites like this leave the community underdeveloped and lacks access to services, which exacerbates the issues in the community, according the Kristen Dubay, former Director of Health and Human Service in Bridgeport, CT (OSEE 2013). In addition to this Brownfields remediation, EPA had projects concerning air quality, green jobs, recycling, asthma rates, and toxic exposure in this community. In this community, the EJSC project funds were used for Brownfield remediation, hosting a community fair focused on asthma, forming a recycling program at two schools, storm water management training for 20 youth, job training for the water industry, greenscaper job training, and a new fishing pier, which increased this community’s access to the harbor (US Fed News 2009; OSEE 2013; EPA 74 2014). Beyond these, there are further trainings that the city and other actors are encouraging (EPA 2014). As requested by the EPA, there was an interagency partnership in this community’s project. The US Department of Transportation, the Department of Housing and Urban Development, and the Environmental Protection Agency were involved in the activities in this community. These actors are involved in projects that go beyond the one-time EJSC project in the community. Region 2: Staten Island, NY In Region 2, which includes New York, New Jersey, Puerto Rico, U.S. Virgin Islands, and 8 tribal nations, the North Shore of Staten Island, New York was selected for the EJSC project. Various data sources and GIS tools, including EJSEAT, were used to indicate the North Shore community of Staten Island for this project (EPA 2010d). At the time of this project, two thirds of the community population was African-American or Latino (EPA 2010d). This community has had a history of environmental burdens, such as numerous Brownfields sites and health problems stemming from truck and industry pollution (EPA 2010d) (Sherry 2010). In the past, this area was the location of many lead manufacturing facilities (Schumer 2009). Due to this, the community suffers for many cases of lead poisoning. The neighboring homes have a lead concentration that is higher than the EPA national standard (Schumer 2009). Health of the community children was a main concern when it came to the lead concentrations in the area. Similar to the Bridgeport community, there are leftovers from factories during World War 75 II. While in the process of developing the atomic bomb, companies used a site in the area for uranium storage (EPA 2012c). The remnants from that period of storage have lingered in this community (EPA 2012c). In addition to these contamination issues, the waterfront location of the community causes air pollution in the area as well. The funds from the EJSC project mostly went to validating concerns of contamination at twenty-one sites in the area. Investigation of home lead rates and other contamination testing was done as well. With this information, local and state actors will unite to create a health strategy for the community (EPA 2012c). This health strategy will include a means of communicating information to the community and testing children for lead poisoning (EPA 2010d). This project incited as local coalition of environmental, environmental justice, civic, and tenet associations. A portion of the EJSC funds went to support the efforts of this coalition (EPA 2010d; 2012c). Regions 3: Washington DC In Region 3, which includes Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia, Wards 7 and 8 in Washington D.C. were selected as the showcase community in the region. GIS screening along with demographics, environmental data and possible partnerships indicated this community as the focus for the project (EPA 2010d). The community was composed of mostly minorities at the time of selection. Also at the time of selection, this community had some of the worst poverty and unemployment in the city (EPA 2010d) (Sheffey). Wards 7 and 8 are along the Anacostia River, which is heavily polluted (Sheffey). Also in this 76 community, there were many abandoned contaminated sites. There are 12 brownfield sites along the river, one of which is a recently decommissioned power plant (Sheffey). Some members of the community depend on fishing as a livelihood (EPA 2010d). The contaminated river affects their health and livelihood. The EPA stated that this community suffered from degraded infrastructure and a lack of access to environmental amenities (EPA 2010d). The EJSC project allocated $50,000 of the $100,000 for the community to green job training (EPA 2010d). The remainder of the funds were planned to be used for the projects that the partnerships that were formed through the EJSC project. An aim of the project in this community was to create partnerships that included academia, government, business, and community members (EPA 2010d). There were forums held with this stakeholder in the community during the first year of the project. The three critical concerns that arose from the stakeholders’ forum were green economy, children’s environmental health, and contaminated sites (EPA 2012d). The green economy concern will be addressed by training members of the community to be cleanup workers in the contaminate sites (EPA 2012d). The children’s environmental health focus will be addressed through a healthy home, school, and childcare initiative. Region 4: Jacksonville, FL Region 4 consists of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, and six Native American tribes. Health Zone 1 in Jacksonville, Florida was selected for the EJSC project. The EPA EJSEAT GIS tool 77 narrowed the options down to a few communities by overlying the following indicators: priority watersheds, non-attainment areas, Brownfield sites, active community-based organizations, Toxic Release Inventory (TRI) emissions, poverty level information, and human health statistics (EPA 2010d). From those communities, the Regional Administrator selected Jacksonville Health Zone 1 as the EJSC project community (EPA 2010d). At the time of selection, 41% of the population belonged to minority classification. There was around an 11% unemployment rate (EPA 2010d). The environmental burdens of this community consist of several superfund and brownfield sites. In 1998, this community was a part of the EPA Brownfields program (EPA 2010d). A leading concern of the community was the water quality. There was a concern about whether or not the aquatic life in the surrounding water was of a standard to be consumed Due to this concern, a portion of the EJSC project fund went to a study of the fish and shellfish in the two local streams (EPA 2012e). This survey ended with 24 postings of advisory signs concerning fish consumption (EPA 2012e). Along with this survey of the streams, there were many workshops and forums hosted. The EPA stated that the project consisted of a federal, state, local government, and community member partnership. These partners attended workshops and forums, such as a community- industry forum. The main industries in Jacksonville, Florida are the military and transportation industries (Forbes 2014). The partners created the Community Action Plan that suggested the focuses of the human and environmental health efforts (EPA 2011c). The health concerns in the community, besides those surround the aquatic life, 78 are asthma and lead poisoning, especially in children (EPA 2011c). Due to this fact, an aim of the EJSC project was to decrease the exposure to lead and asthma rates in children in the community. Region 5: Milwaukee, WI Region 5 consists of Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin and 35 indigenous tribes. The community selected for this program was the 30th Street Industrial Corridor in Milwaukee, Wisconsin. EJSEAT GIS tool indicated Milwaukee as the community for this project. In this community, 95% of the community population was classified as minority and 39% were below the poverty line (EPA 2010d). In addition to the EJSEAT GIS tool indication, this community had previous partnerships with the city, state, and the EPA in the Brownfields programs and other commitments. The environmental burdens of this area consist of many brownfields sites as well as high asthma and lead rates in the community (EPA 2010d). The community was once the home of many industrial facilities, including properties of Eaton Corp., Harley-Davidson, and Master Lock. With the loss of these facilities, there was a great loss of employment, according to the EPA Region 5 Office (EPA 2011d). While the presence of those industries was correlated to an increase in job, they were also associated with an increase in pollution in the community (EPA 2011d). The former and current industrial facilities are suspected to be contributing to the high asthma and lead poisoning rates in children. In the city of Milwaukee in 2005, 8.1% of children under six 79 years of age had lead poisoning. Within the 30th Street Industrial Corridor, that statistic rose to 15.7% with lead poisoning (EPA 2011d). These burdens brought about the focus of the EJSC project in the 30th Street Industrial Corridor community in Milwaukee. A main goal identified by the EPA was to improve human and environmental health with the redevelopment of the brownfields in the community (EPA 2012f). The three main focuses of the project were reduce exposure to environmental pollution, increase understanding of environmental health triggers and access wellness care, and provide job and skill training (EPA 2011d). In order to address the first focus, Region 5 Office used a GIS tool to inspect and assess industrial facilities. To address the second two, the project offered many workshops and job trainings. The planned EJSC project funding allocation in 2010 was $15,000 for Schools Chemical Cleanout. $10,000 was to be dedicated to a Community Health Fair. $15,000 was allocated for Training for Lay Community Health Workers. $15,000 was expected to be used for the creation of urban gardens and a healthy food network. The urban agriculture aspect of the project took place on remediated brownfield location. One of the gardens was dedicated to the Hmong population in the community (EPA 2012f). Finally, $40,000 was allocated to assist and support community organization (EPA 2010e). Beyond this one-time project, there continue to be projects in the remediation of the brownfields in this community. 80 Region 6: Port Arthur, TX In Region 6, which consists of Arkansas, Louisiana, New Mexico, Oklahoma, New Mexico, and 66 indigenous tribes, the Westside community of Port Arthur, Texas was selected for the project. The Westside community was selected because of it is considered a low-income, minority fence line community that borders many industrial facilities, such as the largest refinery in the United States, Motiva (EPA 2011e). At the time of selection, 44% of the population of the community lived below the national poverty line (EPA 2012g). In this community, there are very high asthma and cancer rates compared to other Texas rates. There was concern about the quality of the fish and wildlife consumed from the waters in the community since seafood is a large part of diet in the community (EPA 2012g). In addition to these environmental burdens, there are brownfield sites and concern about the economic vitality of the area. This community is also frequently affected by hurricanes (EPA 2010d). The EPA held forums with Port Arthur stakeholders (community, local government, and industry) to construct a plan for the EJSC project that formed six focuses of the EJSC project in Port Arthur. These six foci—environmental quality and response, unemployment and skill development, downtown and Westside revitalization, community health, housing, and energy efficiency—were assigned to workgroups. Work groups composed of industry representatives, community organizer, and EPA officials were established based on the six focuses. The EJSC project in this community aimed at addressing the six foci. There were four activities funded by the EJSC funds. First, $14,800 was used to support the 81 construction of the Golden Triangle Empowerment Center, although funds from other sources contributed to the construction of this center. The non-profit Digital Worker Academy partnered with Motiva, Contex, and others in the construction of this center (EPA 2012g). The purpose of the center is to provide job training for the industrial boom in Port Arthur. It was thought that this center would ameliorate the unemployment in the community, and it would contribute to the livening of the downtown and Westside areas in Port Arthur (EPA 2012g). $14,799 went to the Healthy Homes Outreach project in the community (EPA 2012g). The Healthy Homes Outreach project involved collaboration between CIDA, which is a local environmental justice organization that is headed by Hilton Kelley, who is a member of NEJAC, and the University of Texas Medical Branch. This resulted in the outreach and education of 60 community residents (EPA 2012g) $14,550 was allocated for an after school program at Tekoa Charter School (EPA 2012g). This after school program focused on grades 5-8. The program involved a curriculum that center environmental quality and community involvement in environment. The bulk of the funding for this community ($46,776) was allocated for a contractor that created an environmental profile document for Port Arthur (EPA 2012g). The remainder of the funds was used for facilitation of meetings, forums, and trainings. In addition to these aspects, some boasts of the Port Arthur EJSC project are the building of a partnership between industry and community that resulted in $1 million for the building of a health clinic for the community. Also, the project supported the redevelopment of brownfield sites in the community. Further, there was energy 82 efficiency job training and education for 100 families in the community according to the project final report (EPA 2012g). This is an example of green jobs being fostered in the community. Emergency response and chemical cleanout training was given to community representatives. These are the results of the one-time project in the Westside Port Arthur neighborhood. Other projects have continued in the project since the EJSC. Region 7: Kansas City, Kansas/Kansas City, MO Region 7 stretches across Iowa, Kansas, Missouri, Nebraska, and 9 indigenous tribes. The community selected for the EJSC project was a collection of eleven neighborhoods in Kansas City. These neighborhoods stretch from the Kansas side to the Missouri side. The boundary around these neighborhoods is set by zip codes (EPA 2010d). At the time of selection, around 44.2% of Kansas City, Kansas was classified as minority and 17.1% classified as low-income. Kansas City, Missouri had 39.3% classified as minority and 14.3% lived below the poverty line (EPA 2010d). The Region 7 office chose this community because it matched the desired target area for another environmental justice plan of the EPA, the Healthy Home Community Initiative (EPA 2010d). The concerns of the community included water quality, air quality, and brownfields and waste disposal sites. In addition to this, high asthma rates and lead poisoning concern the community, especially in the children in the community. Community members that attended a meeting hosted by the EPA pushed for environmental education and awareness and youth engagement (EPA 2012h). The 83 resulting areas of focus from the meeting were urban water, healthy communities, and urban agriculture. The urban water focus would address water quality. Fish consumptions concerns fit under this focus. The Healthy Community initiative addressed healthy home issues, provided emergency preparedness training, and offered youth environmental education (EPA 2012h). The urban agriculture initiative reused brownfields sites for urban agriculture. Community members were given advice from parties in the Kansas City EJSC partnership on site design, selecting plants, and business plans for urban agriculture (EPA 2012h). There were 30 community members at that meeting. In order to attain some of these goals, Region 7 office put on many workshops and trainings. Region 8: Salt Lake City, UT The EPA Region 8 office serves Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, and 27 indigenous nations. Salt Lake City, UT was chosen as the environmental justice showcase community. Only six neighborhoods in the city are a part of the project. Glendale, Jordan Meadows, Poplar Grove, Rose Park, State Fairpark and Westpointe are the neighborhoods in this project (EPA 2012i). 39% of the community fit under the minority classification. In addition to this, the city hosts a refugee resettlement (EPA 2010d). The refuges in this community have come from countries such as Somalia, Iraq, and Burma (SLC 2014). At the time of selection, half of the community population did not speak English, which present participation issues (EPA 2010d). Water and ground pollution are environmental concerns of the 84 community. According to the EPA Office of Environmental Justice, this community was chosen because of this environmental burden. In addition to this, the agreement and general willingness of the State and local governments to participate, health and environmental data, community-based efforts in environmental justice were reasons for selection (EPA 2010d). Also, this community was an area that the EPA Region 8 has not provided assistance to the community in the past (EPA 2010d). The goals of the EJSC project in Salt Lake City were to assist the community in addressing environmental burdens and cultivate partnerships and collaborations in the community (EPA 2012i). The successes that the Region 8 Office lists are development of a healthy community model, development of an environmental health needs assessment, collected community environment and health data, which led to a map, foster a group of community stakeholders, and hosted an event that promoted children’s health (EPA 2012i). Region 9: Port of Los Angeles/Port of Long Beach, CA Region 9, which includes Arizona, California, Hawaii, Nevada, Pacific Islands, and 148 tribal nations, selected the Port of Los Angeles/Port of Long Beach community for the EJSC project. Around 70% of the community population was classified as minority in 2009 (EPA 2010d). This area is the most effected by environmental burdens in the state. The pollution in this area stems from the goods movement through the port and industrial activity along the port (EPA 2012j). This port is the entry point of 40% of imported goods (EPA 2010d). These compounding factors attribute to the poor 85 environmental quality in the community. The effects of this poor environmental quality can be seen in the community. According to the Office of Environmental Justice, there are approximately 1,200 premature deaths as a result of the pollution in the area (EPA 2010d). Aspects such as these demonstrate why the community was chosen for the EJSC project. The aim of the project in this community was inspection and enforcement of regulation of the facilities and activities in the area (EPA 2012j). Also, the project was used as an opportunity to foster relationship between the community and local government to bring the voices of the community to light. The project supported grassroots actions that were already at play in the area. Beyond this, there were inspections that resulted in redefining the regulations for the facilities in the area (EPA 2012j). Regulations such as safe school zones and anti-idling signs were created as a result of this project. Beyond this one-time project, grassroots actions have continued the action that was occurring during the EJSC project. Region 10: Yakima, WA. Region 10 consists of Alaska, Idaho, Oregon, Washington, and 271 Native American tribes. The community of Yakima, WA was chosen for the EJSC project. The demographics, environmental burdens, and previous resource commitments from the EPA were why this community was selected (EPA 2010d). This community is majority Hispanic or Native American. The Hispanic population is mainly composed of migrant workers (EPA 2010d). Region 10 Office stated that, “poor education 86 opportunities, inadequate housing, immigration status, and high poverty levels all combine in Yakima County to create a situation in which many families are at a greater risk of exposure to environmental stressors and a greater risk of the health impacts correlating to such exposure” (EPA 2010d). These demographics, along with its rural setting, make this community distinct from the other EPA environmental justice showcase communities. Due to the rural nature of the community, an environmental concern is air, water, and ground pollution from pesticides for crops. The Yakima River has had some of the country’s highest concentrations of DDT. Concentrations of other pesticides have been found in homes and children in the community (EPA 2010d). The EJSC project in the community focused on improving the water quality and reducing exposure to contaminants in private well drinking water. The project funded assessments of the private wells in the community. Region 6 boasts that 600 private wells were tested for nitrate contamination. The project also funded a study of crops, dairies, and sewage treatments in attempt to determine the source of the nitrate contamination (EPA 2012k). A GIS tool was used to determine the source of nitrate contamination. Funds were contributed to supply well water filter to 166 community members EPA 2012k). The aim of this project was the water quality of private wells. There was not information provided on how access to private wells is granted and what issues may surround private wells in relation to non-citizens like migrant workers and indigenous communities. Also, no information was provided on what firms govern water in the 87 community. The regulation of those firms was not discussed either. These aspects may address environmental justice in this community as well. Themes in EJSC Regional Projects Since the EPA is a federal agency that creates, implements, and enforces regulation, one might expect that many of these projects would end in some sort of regulation or greater enforcement. But, this was not the case. Only one project (Region 9) results in new regulations. Two themes appear in nine of the ten communities: trainings and partnerships. Most of the projects consist of some sort of job or community trainings. These trainings not only serve as a means of conveying information, but they also mold members of these communities into mainstream society’s norms. These trainings mostly focus on green jobs, which was a dominant theme in my document analysis. The dependence on green jobs as the solution to environmental injustices displays the new wave of market environmental justice. Administrator Lisa Jackson stressed the importance in green jobs and a green economy to environmental justice communities in her speech to environmental justice stakeholders from around the country (EPA 2009b). She explained how these jobs have the capability of decreasing poverty in these communities, decreasing crime, decreasing other adverse impacts in these communities (EPA 2009b). In a separate speech given at a NEJAC meeting, Jackson discussed how this green employment is an opportunity for the community to become more engaged with their environmental circumstances (EPA 2009c). If 88 community members work in the improvement of their community, the decisions made about their environment would be of higher importance to them. At a conference on environmental justice, air quality, goods movement and green jobs, Jackson expounds on how investments in these communities bring jobs and play a role in making better places purchase homes or establish a business (EPA 2010a). She goes on to connect a polluted community and the economy, “…unhealthy air means an unhealthy atmosphere for investments…” (EPA 2010a). When discussing environmental and economic challenges, Jackson states, “Fortunately there is a solution that address all of that: a growing green economy” (EPA 2010a). These statements from the EPA administrator from 2009 to 2013 get at the dependence on the market for solutions to environmental injustices. 89 Table 4-2: Policymaker Language and EJ Conception EPA statement Market Solution to EJ Failure to address EJ “The green economy is the only [solution] that presents numerous and significant opportunities for positive externalities. A green economy is the only one that offers not only new jobs, but cost savings, health benefits, and stronger national security.” Green Economy Fails to address maldistribution, political inequality and structural racism in policies. The residents want more job opportunities, particularly from local industry. Some commenters were interested in reestablishing a local brownfields to help with Westside redevelopment (such as removal of blight, vacant property reuse, economic rebirth). Redevelopment and Revitalization This economic redevelopment fails to change the environmental inequity, but focuses on employment and the economy. This alone will not create justice. “As we see this new economy growing – green jobs, green collar, green energy – some communities who may feel separate from environmental issues suddenly have a real stake in the debate because they have a chance to get those jobs.” Green Jobs This statement, not only underestimates the EJ communities members’ awareness of their environmental burdens, but it also suggests the green jobs are a silver bullet for environmental injustice. The EJSC project also epitomizes this wave. An aim of the EJSC project was to create green jobs. Creation of green jobs or training for green jobs was a goal and success in most communities in the EJSC project. The empirical analysis of the project 90 provides a grounding of this new wave. Through the exploration of each community, one can see what green jobs are and how the state guides that market in its attempt to environmental address environmental justice. The EPA provided funding to host job trainings, such as the water management job training in Bridgeport, CT or training community members to be cleanup workers in brownfields sites in Wards 7 and 8 in the District of Columbia. The Port Arthur Showcase Community shows an example of a break from the green jobs to simply jobs in general. The project in this community supported the Golden Triangle Empowerment Center. This center trained workers for industry as opposed to remediation or landscape work. This implies a dependence on the stimulation from more jobs to correct the environmental justice issues in the community. In addition to the green (and other) jobs, a large portion of the $1 million dedicated to the EJSC project played a role in the green redevelopment in the selected communities. This redevelopment is expected to incite a revitalization of these communities. ‘Partnerships’ is the other theme in the projects. It relates to the document analysis theme ‘Green Economy’, found in Table 3-2. The objective was for the EPA to use its power as a regulatory agency to brings industry, local government, and community activists together to form new connections. The description given of these projects only depicts a ‘partnership’ as a discussion at a forum, but Chapter VI will discuss concrete outcomes of these partnerships. These partnerships mark a wave of market environmental justice in two ways. First, it highlights the devolution in the state responsibility under neoliberal regime. 91 These collaborations are meant to get other bodies together to form solutions because the state has dwindling power to effect change. Other bodies can be different scales of government, non-profit organizations, and the private sector. Second, partnerships highlight how policy must work according to what works for the economy under this regime. The common rhetoric that state regulation drives down the economy illuminates cultural derived power that the market, and thus industry. Environmental justice “solution” created through partnerships show that the state can no longer implement and enforce regulation as a central regulating body, but it must consult the market. Further, considering the power flow in Figure 1, we see that industry has more political power in a neoliberal society than an environmental justice community. Thus, it is more likely that “solution” will be tolerable for communities and beneficial for industry. Thus, while many parties may be a part of a ‘partnership’, some members will have more power than others within these partnerships. Discussion The inherent bureaucratic nature of a federal agency orients this policy to a blueprint that can be repeated uniformly in many communities. Here, we see the regulatory state-society relation rise in EPA environmental justice community. A complex issue that has differing histories, causes, and solutions based on place and social and political structures is simplified and bureaucratized to fit within the norms of a state approach mandated by policy and previous actions. 92 The themes in the EJSC project indicate the market-oriented nature of the EPA’s approach to environmental justice issues. This alternative conception of environmental justice aligns with the cooptation of environmental justice described in state-society relations literature. Regarding economic, the environmental justice principles calls for the “the fundamental right to political, economic, cultural and environmental self- determination of all peoples.” This principle calls for equality in participation and recognition, rather than partnerships with industry. Importantly, partnerships within a society where industry inherently has greater power exacerbates dependence and inequality. This fact bleeds through the fact that many environmental justice communities persist in poverty although there are partnerships with industry. Thus, this policy coopts environmental justice to what fits within and promotes the neoliberal society. Further the race-blind nature of the policy continues this cooptation because the environmental justice movement and environmental justice research holds the race is integral to understanding environmental inequality. Ignoring the role that race plays disqualifies many of the arguments the environmental justice advocates and researcher make about environmental racism. Thus, we can see that environmental justice is taken from advocates and recreated into a race neutral issue. Conclusion The importance of economic stimulation in the Environmental Justice Showcase Communities project, along with Administrator Jackson’s praise and hope in a green 93 economy, demonstrate the rise of the market environmental justice wave in the EPA’s approach to environmental justice. This strategy still fits within the EPA’s attempt to standardize its approach to environmental justice because it uniform across the board to hand over environmental justice to the market, while stimulating and softly regulating the market. This standardized approach to an issue that is place-based is an issue on its own. The expectation that an increase in remedial cleanup jobs and high-end environmental redevelopment will level the playing field for environmental justice communities brings other issues. There is the possibility for unintended consequences in this approach. In the following chapters, I explore these themes through an in-depth case study in my study region, Port Arthur, Texas. 94 CHAPTER V STATE CREATION OF NEOLIBERAL SUBJECTS In this chapter, I describe how the state’s environmental justice policies actively undermine the necessary collective and community political action through (1) perfunctory participation, (2) erasure, (3) enclosure of the problem. These highlight the emphasis of individual responsibility and market in the EPA environmental justice initiatives in Port Arthur. The EJSC program provided significant resources to programs that effectively deflected attention from the state’s role in regulation and enforcement of environmental laws while emphasizing the role of individuals as part of the remedy. In this chapter, I review three programs within EJSC: community trainings and workshops, the Environmental Profile, and Healthy Homes. Each one of these programs is created to arm the individual with information to mitigate the effects of petrochemical pollution rather than provide them with the necessary training or tools to fundamentally transform their relationship to industry. In affect the state align with political ecology’s description of neoliberal subjects by narrowing its environmental justice policy on informing individuals on ways to make their own lives better. This individualization by the state does no adequately address the mechanisms that create environmental injustice. In fact, I argue that in ways, this approach perpetuates the struggles of these communities. 95 Making Market EJ Subjects in Port Arthur In the following section, I argue that the EJSC project, through the support of the Community Trainings, and the Environmental Profile, Healthy Homes project realigns how communities relate to both industry and state through the individualization of responsibility in both the outdoor and indoor environments of the Port Arthur Westside population. The Informing Solution – Community Trainings and Workshops Trainings and workshops are commonplace with the EPA regarding environmental justice communities. They are the main form of interaction between the EPA and communities, according to an EPA staff member. These are the most overt measures that align with formation of the bootstrap citizen. Trainings and workshops are carried out to arm and empower citizens with information. An EPA staff member stated this regarding training, “What we try to do here at the EPA is try to encourage their participation and empowerment, like the training that we did in Port Arthur. We try to do trainings in different places, not only around individual rules, but we try to…We did a training for people to see all the different tools that were available to them and help them understand how to use those tools effectively when they are communicating with the state. Within the scope of our authority in our 96 programs, I feel like making sure that the community’s have access where they may not have had access before and giving them the tools they need to be as effective with their engagement…Use the tools that are available that helps them solve their problems…” –EPA2 The expectation is that citizens can use this information to campaign on their own behalf. While they serve to empower, these trainings and workshop function as perfunctory participation because the participation does not end in actualized changes for the community. Rather, in response to concerns raised about material harms, communities are supplied with information. Workshops and trainings were majority of the actions taken during the EJSC project in response to the concerns raised by community members. In the project updates from the EPA Region 6 office regarding the EJSC project in Port Arthur, concerns raised by community members during a community forum are separated into four main themes: disaster preparedness and response, air, water, and land. The project employed many tactics to address these themes. The project used trainings to address the themes of disaster response and air quality. Disaster Preparedness and Response Disaster response was the first concern the EPA addressed. While disaster preparedness may not seem overtly to be an issue in a community whose most obvious, Port Arthur’s geography helps one to understand why community members may bring 97 this concern up to state representatives. Port Arthur’s coastal location leaves it opportune to many natural hazards, such as hurricanes and flooding. Vulnerability and adaptive capacity as it relates to disasters became widely accepted as environmental justice issues post Hurricane Katrina (Bullard and Wright 2010; Walker and Burningham 2011). Hurricanes Rita (2005) and Ike (2008), among others, have caused a lot of damage to low-income communities in Port Arthur and surrounding areas. The impact from these hurricanes can still be seen on the landscape in Port Arthur because many people could not afford to repair the damages their property. There are many abandoned homes and buildings. All of the actions regarding Emergency Response were workshops and symposiums. These provided information on emergency preparedness, hazard plans, and community hazard emergency workshops. While information on preparedness may be useful, it misses the broader issue with disasters, such as infrastructure or adaptive capacity of the community. Information will not contribute much to the adaptive capacity of these residents. Air Quality The EPA responses to the other three themes were similarly ineffective in addressing the broader burdens of the community. Air quality concerns raised, the EPA informed residents about a state initiative to address air quality in Texas. 32 teachers were given School Chemical Cleanout training, which taught teachers how to properly dispose of chemicals used in the classroom. This training focuses on the indoor 98 environment and neglects the industrial sources of air pollution. Additionally, the Healthy Homes project was listed as an action in response to air quality concerns. This project is analyzed extensively in the following section. Water and Land Concerns regarding safe fish to eat, clean drinking water, and fish advisories were dealt with by informing residents in community meetings that drinking water meets EPA standards, and showed groundwater data for possible vapor intrusion. The EJSC project’s ‘land quality’ actions conflate many conflates a myriad of interpretations of ‘land.’ The trainings used to address land concerns included: job trainings, energy conservation education, a small business forum to address land concerns. While this information is valuable to an extent, it does not address the air quality, water quality, land degradation, and adaptive capacity of the community. Discussion: Informing Solution The EPA fails to advance the environmental justice through trainings in the EJSC Port Arthur. The numerous trainings of the EJSC project indicate that the main method of changing the circumstances and “alleviating” environmental justice is shaping EJ community residents into bootstrap citizens. Prepared with information, individuals have the responsibility to address their own concerns. Stronger regulation on polluting facilities, which may decrease the burdens on this community, is not a response to any of 99 the community’s concerns. One EPA respondent expressed a desire to perform more inspections and have stronger regulation on industry stating, “I would like to see a lot of targeted inspections around the facilities to make sure that they’re staying in compliance. From the EPA’s perspective, I think that is a big thing. I’d like to see some community monitoring. So not just what is going on on the fence- line, but also in those communities. I would like to see some partnerships between HUD, the small business administration, and EPA to look at opportunities for revitalization.” –EPA2 Under a market regime, where an industry as strong as the oil and gas industry has a lot of power, it is understandable why it is no simple feat for a federal agency to increase regulation. Through a political ecological lens, community trainings and workshops do not bring justice or empowerment to these communities; rather, they seem to be a method of decentralized responsibility to the individual. As previously mentioned, these trainings act as a form of perfunctory participation. But one EPA staff member pointed out a silver lining in this ineffective process. EPA staff member 2 told me: “We try to have the state and industry folks in with the people that we do the community specific training for, even though they are 100 really reluctant to be there. We find that the trainings provide a safe place for people to start actually working with each other…People at the trainings feel like they were heard.” –EPA2 This staff member went on to tell success stories of building connections between state, industry, and community members. Most of the community organizers articulated how difficult it is to gain creditability and communicate with industry and local government officials. Trainings as a means of bridge building may indicate that there is some level of success. These connections are beneficial, but multiple community organizers commented that when the EPA left, the communication between stakeholders went with them. Charlie, a community organizer, told me in exasperation: “They got involved when the EPA was here. Then after that then everyone went back to their silos. And then when you talk to them about it, they so busy” EJActivist1. Charlie’s statement shows how these trainings create a false sense of cooperation that fizzles out when the EPA leaves the community. Environmental Profile and Superfund Assessments The EPA dedicated half of the funding for the EJSC project to an in-depth environmental profile of Port Arthur. This resulted in “the most comprehensive environmental profile for the city of Port Arthur than they had completed for any city in the U.S.” (EJ4). This profile was created to further address the concerns of air, water, and land quality that community members brought up during a community forum. 101 The profile provides analysis of the land, water, and air of Port Arthur with the aim to substantiate the concerns raised by community members. Broadly, the EPA found that the land, air, and water in Port Arthur were not of concern to the EPA. Meaning that, all findings fit within what the EPA classified as little to no concern. EPA staff member summarized the environmental profile as, “The environmental profile basically showed that from an air, water, and land management perspective it was safe to live...I say safe...those media were certainly habitable and placed no one in any significant endangerment or in any way on a consistent at risk status. The air quality standards were stained and in accordance, with exception of a couple of water bodies that the Texas health department would sometimes issue fish warnings, but the water was safe. Those health advisories were issues by the Texas state health department generally based on a focus on aquatic life. But the water was fishable and swimmable. We found that profile showed that the managing of waste was also done consistent with environmental regs. All and all despite some of the concerns about living on the Westside as close as some people were and are still the overall environmental profile indicated that there were no conditions that could be termed life threatening or significant in terms of environmental impairment.” 102 The air meets health-based standards from the EPA according to this study. The drinking water meets standards, but the groundwater is contaminated. Also, the profile showed that there should be caution with the aquatic life in the surrounding water bodies. Of the 16 water bodies listed, only 4 are listed as ‘Yes’, indicating there is no known concern with the fish in this water body. The other 12 are listed as ‘Caution’. The contaminant of concern in these fish is polychlorinated biphenyls (PCB), with one exception. The chemical of concern in the Gulf of Mexico is mercury. I visited the surrounding bodies of water to determine if signage had been posted to inform Port Arthur residents of these findings. Upon my initial visit, which was five years after the profile was created, there were no physical signs or public advisories disclosing the finding of the profile to the public. Soon after my visit to the affected waterways and water management offices, some signs have been posted according to one community respondent. We see that in this case the state failed to follow through with its own method of creating justice, which is supply information. According to the profile, the land in Westside Port Arthur has no known contamination, although nearby industrial land does show contamination. The findings in this profile were interesting because they suggest that there are minimal environmental burdens on this community. This is surprising because the typical concern with fence-line communities is the pollution from the nearby industrial facilities. Benjamin, a community organizer that participated in the facilitation of the EJSC project, stated: 103 “After completing that study, EPA reached the conclusion that effectively said that because of the emission reductions that the company, previously as well as on-going, they found that residents within the city of Port Arthur were at no more risk from an environmental perspective than residents living any metropolitan area of the U. S.” –EJ4 These findings may raise a few flags on the ‘EJ community’ classification of Port Arthur. EPA respondents found that while what Benjamin says is true, the proximal location of the Westside community causes residents to fall victim to the effects of ‘industrial upsets’. Industrial upsets refer to accidental emissions that exceed permitted standards. Upsets are illegal, but do occur. The accidents would, of course, not be recorded unless one occurred at the moment of surveying for the environmental profile. This indicates that while the environmental profile did provide valid information, it was incomplete and devoid of an understanding of upsets and other compounding factors in the Westside community do undermine the community’s ‘EJ community’ status. A similar piece of the EJSC project was numerous Superfund assessments performed by the EPA in the Port Arthur Downtown area. As seen in Figure 4 and 5, the Port Arthur downtown area is desolate. There are a few new buildings, but most of the buildings in the downtown area are deteriorating and deserted. The EPA Superfund assessments examined the viability of the downtown area and tested for contaminants. The goal of these assessments was to know what needed to be done to make this land usable for future economic endeavors in the Downtown Port Arthur area. According to 104 an EPA representative, the EPA performed hundreds of these assessments in the Port Arthur area. These assessments were not provided in FOIA documents, nor were they available on the EPA website. It was found that Port Arthur has two Superfund sites and seventeen Brownfield sites. Brownfield and Superfund sites are area the EPA has found to be contaminated due to previous activities on the land. These lands are unusable until decontaminated. The results of these tests were handed over to the local government. To the knowledge of many community organizers and EPA staff, nothing has come out of the extensive assessment of Port Arthur because there is a lack of funds to clean those lands that were deemed toxic, nor is there private investment to build on the land. Discussion: Environmental Profile and Superfund Assessments The environmental profile detracts from environmental justice goals in two ways. On the one hand, it undermines the plight of the community and the fight of environmental justice organizers by painting an incomplete picture to of the environmental circumstances in the community. In other word, we see an erasure of community claims. Many grassroots organizations have found the environment, especially the air, in Port Arthur to be outside of the EPA’s standards in the past. This profile suggests the environmental situation in Port Arthur has been remedied, while community members continue to find hints through local knowledge, such as elevated cases of respiratory issues and cancer, that this may not be the case. And as other aspects of the project, it piles information of the community residents with the expectation for them to do something with that information. In the 105 case of the profile, the information provided suggested that all was well, and there concerns of injustice were unwarranted. The technical analyses performed by the EPA, Environmental Profile and Superfund Assessments, have not changed the injustices faced by Port Arthur residents. Residents have an accumulation of technical information into their hands, but are not empowered them to do anything with it. An EPA staff member recognized this fact and expressed frustration that doing anything further was beyond their political and funding capabilities. Healthy Homes Project The Environmental Justice Showcase Communities project in Port Arthur, Texas resembles the accounts previously mentioned in the literature. Notably, there was a Healthy Homes project, similar to that analyzed in Biehler and Simon (2010), which educated residents on how to properly clean their houses to mitigate indoor pollution stemming from pests. This project was directed to the residents of Carver Terrace and Prince Hall Housing Projects on the Westside of Port Arthur. 60 residents were trained in the Healthy Homes project. Recently, Healthy Homes projects have become common as state public health approaches issues of indoor pollution particularly in low-income urban populations (Biehler and Simon 2010). Charlie, a community organizer, described the Healthy Homes project as following: “They talked to people in a very respectful manner on how to properly clean their home and how to properly clean the dust out of the ducts from 106 the air conditioning, how to protect themselves from pollution that comes from outside, how to properly wash clothing, how to properly clean your areas so you don’t attract rodents. [It was about] teaching people to clean so they can remain healthy.” --EJ1 The aim is to address the high levels of asthma and other respiratory issues in these communities with the perspective that the source of these health issues can be found within the home, not the major outdoor sources of pollution, such as refineries and chemical plants. As Charlie indicated, the education in these projects included the promotion of personal-use pesticides and appropriate dusting measures. Charlie’s quote also highlights a key part of the project. He states that the residents were taught to ‘protect themselves,’ confirming that this not a collective state action to address injustice. Instead, the program promotes individual action to create justice. Discussion: Healthy Homes Biehler and Simon (2010) found that these projects are counterintuitive and avoid broader environmental justice issues, such as the neglect that arises after disinvestment in public housing. Carver Terrace and Prince Hall were suffering from neglect. In fact, two years after the EJSC project, the Carver Terrace Housing Project, which was built in the 1950s, was set to be demolished and residents relocated, which may be seen as a from of justice for those relocated (PAHA 2014). Many other residents remain in Westside Port Arthur. 107 While the neglect of the Carver Terrace and Prince Hall Housing Projects was a problem, a more dire issue is at hand for these residents. As seen in Figure 3, these housing projects across the fence from the largest refinery in the North America, the Motiva Refinery. By pushing people to address their respiration issues by dusting and administering pesticides, this approach shifts responsibility and accountability away from regulators of outdoor pollution, which enters these homes due to the proximity, and toward individual renters in the housing projects. The project insinuates that the personal choices and ignorance of the Westside population are the cause of the respiratory circumstances in this community. It indicates that the solution is to supply residents with more information. Another community organizer, Clyde, retorted when I asked about the Healthy Homes program: “You can tell people to wash their homes down inside out; it’s not going to help because it’s going to get right back in there. There is no solution, but a relocation solution. That’s it!” --EJ5. Clyde expressed frustration with the lack of state action on behalf of the community through relocation. Clyde’s thoughts also tease out the observation that the Healthy Homes project overlooks the permeable nature of the indoor environment. While roach droppings may trigger asthmatic episodes, the tons of pollution from the nearby refinery will also contribute to respiratory issues in these communities. This project neglects what Charlie referred to as the “major source of pollution” in the homes of Westside Port Arthur residents. It shifts the blame to sources of indoor pollution, which while they may exist, would be described as a minimal source of pollution for these community organizers. 108 Further, the deracialization of environmental justice that occurs through the individualizing of responsibility creates an embodiment of the social construct of race. The analysis of the production of race and the liberal subject in Mansfield (2012) articulates how the deracialization of policy fosters the racialization of society. The perception of difference is grounded and reinforced by actual difference that results from the environment pollution. The material environmental burden of minority populations in Port Arthur results in material effects in their bodies. Port Arthur’s Westside community was 96% African American at the time of the EJSC project (EPA 2010). This information in conjunction with the higher respiratory disease cases in this area creates an actual difference based on race. The Healthy Homes project, by giving responsibility to the individual, tells the story that black people in Port Arthur have higher respiratory rates because they do not properly clean their homes. It is evident how this approach detracts from environmental justice goals. Rather than addressing the broader issues of industrial pollution, fence-line proximity, or community marginalization, the project focused on individual private homes. 109 Table 5-1: Decentralization of Responsibility and EJ Goals Project Advances EJ Goals* Detracts from EJ Goals* Cost Community Trainings Safe space to build connections between community, state, and industry stakeholders. Trainings arm the citizen with information with the expectation that for them to do something for themselves. Project funds not used Environmental Profile and Superfund assessments Technical analyses available to the city for future development projects. These analyses provide information without empowerment. $46,766 Healthy Homes Community activists were connected to medical scientists, who can provide technical assistance to community environmental justice efforts. Community members need to properly clean their homes to have better lives. This neglects the sources of outdoor pollution, which permeate the home. $14,799 *The goals referred to in this table are those of EJ principles and EJ advocates. Discussion This chapter suggests that each one of these projects furthers that marginalization and appearance of deviance within this community. Trainings function to create the bootstrap citizen. The environmental profile undermines that fight of environmental justice activists. The Healthy Homes project promotes the idea of dirty black bodies and homes. It asserts that these populations must be taught to properly take care of themselves, then their issues will be remedied. Training and information provided by 110 the state is expected to be translated into self- protection and action by community members. This functions on the false premise of equality, pushing forward the perception of racial difference. Environmental justice advocates and principles call for environmental protection through regulation, but rather the state has shifted to conversation to self-protection. This decentralization of state responsibility to the individual is an example of how the state has coopted environmental justice. The devolution of responsibility makes sense within regulatory relationship between state and communities where the state attempts to act uniformly in communities. Promoting citizen responsibility creates a framework where the state can take the same action in each community and members who are familiar with their specific circumstances can take action on their own. While this may seem like a win- win situation, it is evident that there is a mechanism that prevents this win-win, which is inequality and power dynamics. In this society, the state must validate that argument of a community before action can be taken against industry, which implies the need for state responsibility. Conclusion: State as Convener and Adjudicator Table 5-1 synthesizes the successes and failures of the aspects of the EJSC project discussed in this chapter. These failures may have come with small successes. Community organizers and agency staff pointed out one triumph of this approach. That is the convening power of the EPA. As the case study shows, EPA EJ does not successfully mobilize community members. But, it does create a place for groups to 111 meet who typically do not come together. In the case of Port Arthur, industry and the local government, who previously many not have found community organizers to be creditable, and thus did not meet with, came to the table during the EJSC project. The EPA staff and some of the community organizers praised the ability of current policy to allow the EPA to work as an intermediary. One example of this was highlighted with the Healthy Homes project. Through the project, environmental justice community organizers were connected with professionals that can assist with future technical analysis. At the closing of the project, the University of Texas Medical Branch in Galveston established future studies in Port Arthur to assess the health disparities and social determinants of health in the community (Prochaska 2014). So yes, the Healthy Homes project missed the mark on environmental justice, but the process capitalized on the EPA’s ability to bring actors together. This is not to say that these future connections will bring justice or mitigate the large amounts of industrial pollution in the community. While this success is noted and appreciated, the improvement of circumstances beyond this is slim. State policy fails to overcome the broader issues perpetuating environmental injustice. The major failure of these measures is that they supply information to the community, but does not take any action on behalf of the community to address the broader issues that create injustice, such as structural racism. This undermines the guise of empowerment for which these projects are meant. Empowerment of marginalized communities and improvement of environmental conditions should be inherent to any environmental justice policy. One may not expect 112 to find that EJ policy pushes forward a neoliberal agenda. But, because the U.S. Environmental Protection Agency exists as a regulatory body within a market-centric state and society, this is the case. As a federal agency tasked with environmental issues in a neoliberal state, there are major limitation in their abilities. Many political ecology works highlight the defunding of social and environmental programs that occur under neoliberalism (Peck and Tickell 2004). This plays a role in shaping the EPA’s approach. With slim funding, there are fewer personnel to deploy to areas of suspected violations and upsets. But, broadly speaking the new common sense under neoliberalism shapes EJ policy. This new common sense places the responsibility of the individual. The cultural individualization affects policy makers on the personal level, but also it influences that political pressure placed on them by the elected officials that appoint them. Federal agencies suffer much scrutiny under the public eye. That scrutiny influences elected officials, which in turns affects policy makers. In this sense, the EPA is restricted on a social level. There is a dialectical relationship strapping the EPA into an approach that dodges the broader causes of environmental injustice. This relationship expresses the nuance of the current state environmental justice policy and why it focuses on individualization and little regulatory action. 113 CHAPTER VI THE STATE AND CORPORATE ENVIRONMENTAL COMPENSATION The EPA Environmental Justice Showcase Community project in Port Arthur, Texas consisted of many examples of the provision of social ‘goods’ in response to the environmental burdens suffered by the community. These social ‘goods’ including items such as: funding for an after-school program, a health clinic, and a job training program. The state or corporate-funded state project paid for these programs. Yet, I demonstrate that, although corporate actors and the EPA supported community activities, the program did not address the fundamental problems of inequality, soft regulation, or structural racism. This chapter speaks to the compensatory nature of the state regarding environmental justice. In this chapter, I will discuss the benefits that EPA policy is currently providing for the community, then examine the ways in which the current policy continues to fall short and perpetuate injustice. First, I introduce and review the concept of environmental compensation. Then, I move forward to discuss how the social ‘goods’ provided by the EPA or industry are example of state facilitated environmental compensation. We will find in this chapter that, although some concrete compensation was provided to the community, there is no addressing of inequality, soft regulation, or structural racism. 114 State Responsibility and Corporate Compensation Commonly, the environmental compensation discussion focuses on the jobs versus environmental dilemma (Bullard 1993; Hartley 1995). This dilemma concentrates on the compensation that corporations provide in exchange to the community’s environment. This compensation is most often in the form of jobs. This discourse is very relevant in environmental justice communities because these communities are usually low-income. The argument becomes that a community should not protest the presence of a polluting facility because that facility will bring jobs. Bullard (1992) suggests that these jobs are a form of environmental blackmail, as jobs and the possibility of economic prosperity are held over the heads of communities at the cost of a clean environment. Revesz (1999) and Hartley (1995) also problematize this compensatory approach to environmental justice, which views jobs as equivalent to a clean environment. Revesz (1999) argues that under current environmental regulation, human life, which is directly impacted by the natural environment, is reduced to numbers and dollars in order to accommodate a cost-benefit analysis approach. Hartley (1995) in his argument against environmental blackmail makes a similar point that a dirty environment does not equate to economic gains, especially low paying jobs that are typically exchanged for the environment. Hartley (1995) campaigns for a Kantian rights-based approach, which he highlights as being the framework adopted by most EJ scholars. Under this framework, all humans should have the right to a clean environment. Through this right, members of this community would be treated as an end rather than a means (Hartley 1995). 115 While Hartley (1995) and Bullard (1992) discuss environmental compensation as a dynamic between community and industry, I find that this dynamic can be seen in state-society interactions as well. Through environmental justice policy, the state uses its power as an adjudicator to facilitate environmental compensation for the communities. Compensation in Port Arthur, Texas There are three projects that stand out as highlights in the EJSC project as environmental compensation: Tekoa After-School program, Golden Triangle Empowerment Center Job Training program, and the Gulf Coast Health Center. These three provide examples of the different pathways through which state facilitated environmental compensation is funded: state only funded, state-industry partnership, and industry only funded. In the following subsections, I will give a description of these three projects. Tekoa After-School Program Tekoa Academy is a state-funded charter school in Port Arthur, Texas. Tekoa Academy submitted an application to the EPA EJ Small Grant program for an after- school program. In 2010, the EPA used EJSC funds to provide for this after-school program. The programs emulated the GLOBE program, which is a program that taught youth about the environmental and Earth systems. According to EPA documents, the students discussed what air quality means to them, the Clean Air Act, Community Right 116 to Know, and recycling. Regarding outcomes, the students put on an informational for the community on “maintaining clean air” and created two newsletters titled ‘Air Quality at Tekoa’ (EPA 2010). These documents were not provided for further analysis. The program began in September 2010 ended in January 2011. Golden Triangle Empowerment Center (GTEC) Golden Triangle Empowerment Center is located in once bustling, now deserted Downtown Port Arthur. This center is a result of a partnership with Motiva, other industrial and municipal actors in the area and a community member, Marvin White. Life skills and job training classes began at the facility in 2007. In 2010, the EPA, through the EJSC project, provided funds to support the existing job training program with this organization. GTEC job training focuses on placing community members in the industrial jobs in the area, thus job training centered on construction and industry job skills. While the storefront sign still hangs in Downtown Port Arthur as in Figure 10, according to a community respondent, the organization, “stopped training due to a lack of funding.” The funding process of this job training introduces the new form of compensation where the state and industry partner in environmental compensation. An initiative in the EJSC projects around the country concentrated on fostering such partnerships between the many actors that play a role in environmental justice communities. An ironic and counterintuitive aspect about this job training program is that the program created a labor force for industry, which deepens the partnership 117 between the EPA and industry in the community. There are a few possibilities for this coincidence. It is possible that because there are not very many options for jobs in Port Arthur outside of services and industry. Further calling for this action is the fact that once of the concerns raised by community members in a community forum with the EPA was the amount of unemployment in Westside Port Arthur. Many respondents agreed with what much of the literature states, which is that most of the industry jobs do not go to environmental justice community members, but to outside workers (Hartley 1995). One community activist, Clyde, expressed strong frustration about job training as a part of justice initiative. “As far as job training goes, it’s just a sham. Ima tell you how they do…They run all of these ads about job trainings and all that, but when a young man goes and apply for certain jobs, they know they are going to cut him out. It’s just a matter of time. They [the young men] get frustrated after an amount of time trying and not being able to get in. Don’t get me wrong I don’t have anything against urinalysis. But they give them a urinalysis, and most of them can’t pass. And when that fails, they give them a math test. And for the life of me I don’t understand why they have to go and take a math test to go and use a shovel… That’s the way they disqualify. They disqualify them in such a way as to...they don’t have any...or they think that don’t have any recall. They [the young men] think 118 that there’s nothing they can do. I didn’t pass they test. So they walk away. Most of them that get the jobs are people that live out of town.” The connection between a urinalysis and a job training program may be difficult to grasp. When Clyde mentioned urinalysis, I initially thought his claims were pretty far fetched. I went the GTEC website after this conversation to gain an understanding of what this activist was referring to. On this website under ‘intake process’, the organization lists the steps taken to screen participants (Figure 6). First, participants must take a Test of Adult Basic Education (TABE) test. This is the ‘math test’ that Clyde mentioned. After the TABE testing, participants are required to complete a drug- screening test, which is the basis for Clyde’s urinalysis discussion. The connection between drug screening and job training is still not clear. To see this connection, one must understand the impact that the geography of the area on employment. Because Port Arthur is a port and the products leaving the area (oil and gas) must go through this port, there is increased security. After 9/11, Congress passed a law that requires workers at a port to obtain a Transportation Worker Identification Credential (TWIC) card (Emsellem et al. 2009). There are a number of offenses that can disqualify an individual from getting a TWIC card. Disqualifying offences include distribution, possession, and importation of a controlled substance (TSA 2016). The National Employment Law Project stated in a 2009 report, 119 “The high rates of initial denials [of TWIC cards] in the African American community are mostly a function of the unprecedented surge of drug arrests and convictions in communities of color since the “War on Drugs.” Indeed, drug “trafficking” is the single largest category of crime of the more than one million felony convictions handed down each year, representing over 20 percent of all felony cases. Thus, by broadly disqualifying anyone with a record of a felony drug sale, even low-level offenders, the TWIC program has had a serious disparate impact on the African American community of port workers.” (Emsellem et al. 2009) Here, we see the relevance of the drug screening and criminal background checks for job trainings in Port Arthur, Texas. These factors expose how complicated it is to claim that a job training program in Port Arthur, Texas addresses the environmental justice issues in the Westside community. Further complicating this form of compensation is that soon after the EPA’s involvement with the organization ended, the project ran out of funding. While I am unaware on to what extent industry participated in this project, it is evident the partnership with industry failed without the EPA present. This resembles the comments that a community activist had regarding the EPA’s convening power, 120 “They got involved when the EPA was here. Then after that then everyone went back to their silos. And then when you talk to them about it, they so busy.” This example shows that the state fails to meets its own standards of compensatory justice because the impacted community is not effectively compensated due to social processes related to the geography of the area. Gulf Coast Health Center In another example of a state-industry partnership, Valero, who has a refinery in Port Arthur, supplied the community with a health clinic, Gulf Coast Health Center - Westside (Figure 7). According to their website, Gulf Coast Health Center, Inc. is a private, non-profit community based organization (GCHC 2012). There are multiple Gulf Coast Health Centers in the area. Valero funded the Westside location. There are two sides to the facility. One side is devoted to general medicine and the other side focuses on women’s health. This facility is an example of a Supplemental Environmental Project (SEP). In 2007, the Department of Justice and the EPA came to terms on fining Valero $4.25 million and calling for $232 million in facility upgrades at three of their locations, one of which was their refinery in Port Arthur, Texas (EPA 2016). Valero decided to undertake many SEP projects to tackle this fine. The EPA acted as a mediator between community and industry to find a need of the community. EPA also established the terms of how 121 the Valero would address that need. Valero not only paid for the construction of the facility, but the corporation will also cover the cost for running the clinic for a set number of years, according to an EPA official. This project covered $1 million of the $4.25 million settlement. While no EJSC funds were used to pay for this concrete compensation, the facility is listed as a success of the project due to the partnerships created through the EJSC project. This example shows how the state is literally facilitating and coordinating environmental compensation under environmental justice programs. Former Administrator of the EPA Lisa Jackson is quoted in a local newspaper saying, “This clinic is one example of how we can work together to address the impacts of pollution, and reach out to communities facing environmental challenges that affect not just their health, but their prosperity and their way of life.” (Shannon 2012) EPA staff members were very proud of this accomplishment, while environmental advocates showed mixed emotions. Most appreciated a health clinic in the community and were pleased to finally see something beneficial happening for their community. When asked how he felt about the Valero health clinic, one activist, Leo, responded, 122 “That is a fabulous example of regulators, industry and community advocates working together to bring tangible community benefits. I understand SEP process is, not a compulsory process for the companies, but at least the fines behind them compulsory. From the companies standpoint it makes good PR sense to go the SEP route than to just pay the fine. I think not all SEPs are created equal, and certainly creating a health clinic in the community where the company is located is, in my opinion, an almost ideal example of SEP. I think that was a good example of everything going right…The Valero thing was one good example of a settlement, but it’s not going to change the broader issue of a lack of resources for enforcement. It doesn’t solve the problem of a lack of enforcement and attention in needed areas, particularly environmental justice communities.” While this quote shows that appreciation that community advocates felt for the health center and the optimism regarding the SEP process, it also illuminates how this means of addressing EJ works according to the needs of the market. This activist’s offhand comment on how it is beneficial for a corporation to choose a SEP project over simply paying the fine highlights the similarity between the state’s approach to EJ and a company’s CSR policy. One may wonder, “What is wrong with this approach? It seems to make everyone happy.” But, Leo ends by expressing the clinic does not address the broader 123 lack of enforcement in the community. The impacts of industrial upsets and other environmental burdens persist. The health center is a part of the Westside Community Complex. This complex consists of the health center and a community development center. Motiva, a refinery owned jointly by Saudi Aramco and Shell, provided the development center (Figure 8 and 9). This, unlike the health center, was not a SEP project, nor was it explicitly a part of the EJSC project. But, this provision of material good is what is hoped will stem from the partnerships that the EPA intends to foster in Port Arthur. Table 6-1: Compensation Advances and Detracts from EJ Goals Project Advance EJ Goals Detract from EJ Goals Project Funds Allocated (USD) Ongoing? Tekoa After- School Program Furthers STEM education in Port Arthur Does not address the broader EJ issues in the community $14,550 No GTEC Job Training Places some on the labor market and create No impact on community’s environment or regulation. Also, does not address unemployment. $14,800 No Gulf Coast Health Center Provides a much needed health clinic Broader lack of enforcement continues None Yes 124 Discussion: Failures of Compensation in Port Arthur, Texas These forms of compensations fall short in three major ways. 1. They do not address or perpetuates inequality. 2. They are forms of soft-regulation that do not enact change in the plight of the community in any significant or material way. 3. They do not address, perpetuate, and create new avenues of structural racism. I will discuss these three compensations in the light of these three failures. Table 6-2: Outcomes of Compensation in Port Arthur, Texas Inequality Soft Regulation Structural Racism Tekoa After-School Program X X GTEC Job Training X X X Gulf Coast Health Center X Inequality Inequality is inherent to all environmental injustice. As previously mentioned, environmental justice is the study of the inequity of environmental amenities and burdens and inequality in the environmental decision-making process based on race or income. Within Port Arthur, there is a major distribution inequity and economic and participatory inequality in the area. The ‘othering’ of minorities in this region creates opportunity for this inequality to persist. A community activist noted that while their counterparts in neighboring town reap many benefits from the presence of industry, the 125 residents of color in Port Arthur do not benefit economically, socially, or environmentally. In these aspects, they only suffer. The EPA states on its Environmental Justice website that their goals for every community are: “the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work (EPA 2016)”. This informs us that equality is a goal of the EPA. But, the compensatory actions from the EPA did not address inequality. Compensation alone does not alter the situation in which this community exists. The provision of a short-term after school program may provide the community with a moment of environmentally focused education, but it does not address the inequality in educational experiences between the Port Arthur and some of its neighbors (EJ1). Not only does the job training not address inequality, it perpetuates it. The TWIC process under the job training program furthers inequality by disqualifying large portions of the population from employment. Soft-regulation Many, including EPA staff members and EJ advocates, have suggested that Port Arthur would benefit from stronger regulation and enforcement from the EPA. But, we see that stronger regulation was not a result of the EJSC project. A weak compensatory state within a society where a federal agency cannot go against the needs of the market coupled has resulted in state facilitated environmental compensation in environmental justice communities. This regulation matches Peck and 126 Tickell’s description of rollout neoliberalism. We are seeing weak reregulation that works according to the needs of the market and benefit the market. State provision of the after-school and a job training programs function as a form of state compensation for the environmental burdens that the community suffers. Typically, industry provides compensation in reaction to the burden imposed by the industrial facilities. In the case of the school program, the state alone provides a form of compensation to the impacted community. These programs, while they may have benefits for the community, do not address the environmental injustices that the community is facing. Industrial upsets and limited environmental decision-making participation continue. Further, similar to state subject creation, this project supplies information to the community without power or support to do anything with it. Differently, the health center is a direct result of soft regulation. The SEP program exists for fine deferment after a facility has violated environmental regulations. This regulation moves along the desires and needs of the market rather than along with the needs of the community. Within the racialized and market-centric regime, a regulatory body is weak and limited in its actions. An EPA staff member commented that, while their action may not be much, it is something. More stringent regulation in this society may incite a backlash in mainstream society, thus placing unspoken and unwritten restraints on the EPA. But, with the limited funding available, the agency can provide an after-school or job training program in an environmentally burdened marginalized community. Also, within its 127 limited power, the EPA can offer industry the option of providing compensation to a community for penalty deferment. Structural Racism Structural racism refers to racialized impacts of “neutral” policies and the underlying processes that marginalized certain populations that stems from historicized roots (Pulido 2000). The ‘war on drugs’ policies are commonly referred to as an example of structural racism. The ‘war on drugs’ initiative consisted of stringent and harsh penalties for drug violations, with harsher penalties for those drugs that were more common in minority communities. These policies resulted in large percentages of the black and latino population being in arrested and jailed. These “neutral” policies seemed to only have a pejorative tone towards drugs, but outcome of these policies were very racialized. Similarly, none of the programs under the EJSC project are intentionally racist, but they do have racialized impacts, particularly the job-training program. Though the job training program was intended to address the unemployment in Port Arthur, particularly Westside, this program aligns with structural racism discourse and the ‘war on drugs’ rhetoric. As Clyde pointed out, the job training program disqualifies many of the Port Arthur population from employment in Port Arthur with policies the continuously penalize those with any history with drug possession, importation, or distribution. Thusly, structurally racist aspects of the state policy shine through this environmental justice program. 128 The fact that this policy pushes forward inequality, soft regulation, and structural racism epitomizes the state cooptation of environmental justice because these are outcomes that completely oppose the goals of environmental justice advocates and principles. The regulatory and highly bureaucratic relationship to environmental justice creates an understanding of how this policy can have these outcomes. There is a set of approaches that the state can work within, and the state has to promote itself. This is seen through the job-training program. While the state may intend to create more jobs, its own structurally racist ‘war on drugs’ policies inhibit itself to reinforce structural racism with environmental justice policy. Conclusion The compensatory nature and market focus of state’s environmental justice actions are inadequate in addressing the root of injustice: inequality, soft regulation, and structural racism. These market-centric policies are soft on industry and cause the environmental justice community to persist in their unjust circumstances. While Westside Port Arthur community members now have a health center and had after school and job training programs, maldistribution of environmental burdens, inadequate regulations, and the economic and health issues that stem from these continue to be issues for community members. These processes are not particular to Port Arthur. Mechanisms such as the SEP program are tactics commonly used by the state to softly encourage industry to compensate communities. I do not argue that compensation is a 129 bad thing necessarily, but it is inadequate as the only measure to create environmental justice. 130 CHAPTER VII CONCLUSION Using qualitative research methods and political ecology theory, this research studied state-society relations and how the state engages in environmental justice activities in the urban setting in the United States. I analyzed how the state frames and pursues an environmental justice agenda, paying attention to how it helps or hurts community activists' environmental justice goals and the environmental justice principles through a case study of the US EPA's Environmental Justice Showcase Communities project in Port Arthur, Texas. Findings indicate that, while this program discursively aims to address environmental injustice, the EJSC project resulted in market-oriented language, programs that decentralize responsibility and align with the creation of neoliberal subjects, state-facilitated environmental compensation. This analysis speaks to why environmental injustice persists even though there is policy that is nominally aimed at alleviating these issues. The qualitative research for this research included in-depth semi-structured interviews, analysis of program documents, and site and participant observation brought me to these conclusions. First, I analyzed and coded extensive amount so documents procured from the EPA through FOIA requests. Second, I conducted interviews with EPA staff and environmental justice advocates familiar with Port Arthur. Site observation involved making trips to physical locations that the project overtly intended 131 to impact, such as remediation of Superfund sites. I also visited other areas in the environmental to search for any sort of change on the landscape due to the EPA’s efforts. Finally, participant observations included attending a community meeting regarding environmental justice and interacting with community members at local environmental amenities, such as a fishing pier. These methods provided insight into the relationship between the EPA and the community, landscape change, and EPA and community conception of environmental justice in Port Arthur. Conclusions Through these methods, I found that this EPA project resulted in four mechanisms of market environmental justice. First, policy aligned with what political ecology’s neoliberal subjectivities. The policy resulted in decentralization of state responsibility to individuals through mechanisms that reconceptualize the sources of pollution to a private, in-home issue. Thus implying that health burdens stem from the failure of the citizen to protect themselves. I found three main projects that most aligned with subject creation: Community trainings that focused on things such as disaster preparedness or grant applications, an in-depth environmental profile of Port Arthur, which examined the waterways, land, and air of Port Arthur, and the Healthy Homes project. The Health Homes project focused on instructing Westside community members on how to properly clean their own homes in an effort to address respiratory issues. This project advanced justice by connecting community activists with medical scientists who can provide technical assistance. But it detracts from justice by ignoring 132 the major sources of pollution right outside the door of these now appropriately cleaned homes. This blames health issues on community members, neglects the permeability of indoor environments, and shift responsibility away from the state regarding citizen protection and regulation. Second, we see state facilitated environmental compensation through compulsory fines resulting from various violations. Typically in the literature, we see that environmental compensation is discussed in the jobs versus environment dilemma. In Port Arthur, I found more concrete examples of compensation. After the Valero refinery was found to have violated air emissions regulation, as a part of a Supplemental Environmental Project, Valero provided Westside of Port Arthur with a Health Center. This was a $1 million partnership in which not only does Valero provide the structure, but also the fund the facilitation of this health center for a certain amount of years. This is not an isolated event in Port Arthur. The EPA SEP program is common in many environmental justice communities. Third, I found that this environmental justice policy focused on industry- community partnerships that often results in forms of voluntary compensation. I found that this program focused on the formation of partnerships with industry that resulted in other forms of voluntary compensation. Motiva, being the most obvious source of environmental burden for the community, provided a community development center in Westside Port Arthur across from Valero’s health center. Also, in the years of this project Motiva and the EPA co-sponsored a job-training program for the community, 133 which failed to provide jobs for community members and further marginalized this community through structural racism. Finally, I found that in this project the state acted as a neutral convener, meaning that the EPA used its power as a federal agency to bring many actors together that may not normally communicate. We see that there is some benefit because there is a moment of convention of parties. Overall the project works according to what is conducive to the market and under a race-blind economic approach. If you look at what some see as the root of environmental injustice, that being structural racism and an unfair decision making process, then no, the project does not contribute to justice in this community. Finally, I would like to point out that compensation is not necessarily a negative. But compensation without remediation, harsher regulation, and greater enforcement is simply payoff and counters efforts of environmental justice progress. 134 Table 7-1: Case Study Conclusion Does the EJSC contribute to environmental justice in these communities? EJSC Example State-Society Relations Just? Regulatory CBA Structural Racism Neoliberal Subjects Healthy Homes, Environmental Profile Coopted, Regulatory Yes No Compensation Health Center Coopted; Regulatory Yes and No No Partnerships Job trainings, Community Center Coopted Yes No Convener Forums and trainings Good Governance; Regulatory Yes Yes and No Returning to the research question: How does state environmental justice policy advance or detract from the goals of environmental justice organizers. It can be said that the collaboration efforts are advancing environmental justice goals. In this way, we can see that state environmental justice policy fits within a good governance description of state-society relations. But, I would suggest, based on complaints that the collaboration did not have a lasting effect from respondents, that the EPA further improve its collaborative efforts within this society where industry inherently has a louder voice due to its role in the market. Aligning with a coopted environmental justice, I find that, overall, environmental justice policy detracts from justice by perpetuating structural racism, soft regulation, and inequality. 135 Table 7-2: Conclusion: Research Question How does state environmental justice policy advance or detract from the goals of environmental justice organizers? State-Society Relations How and why? Future research and policy recommendations Advance EJ Goals Good Governance Increased communication through partnerships initiative The EPA should challenge and critique their collaborative approach (Kohl AAG 2016). Detract from EJ goals Coopted, Regulatory, Fragmented Perpetuating structural racism, soft regulation, and inequality, and thus environmental burdens Policy: New initiatives in regulation, enforcement, or rights. Recommendations While there may be an understanding amongst EJ scholars that there should be a right to a clean environmental regardless of race or income level, there are not many legal rights that are specifically environmental. As U.S. citizens, EJ community members indirectly have a right to air that fits within the spectrum determined in the Clean Air Act. This does not necessarily mean that there is a right to a clean environment. Industrial facilities are typically regulated individually, so if a community exists in the midst of many industrial facilities, which is usually the case, then this may not be considered a ‘healthy’ environment, but their rights are not being violated in this case. The Stockholm Declaration, unsigned by the U.S., calls for a human right to a 136 healthy environment. Many members of the global community have recognized this right while sixteen countries, including the United States, withholding. While in the United States one does not have a right to a healthy environmental, one does have a right to justice and to be treated equally under the “promise of equal justice under law” in the U.S. Constitution. Additionally, Title VI of the Civil Rights Act of 1964 furthers the expectation of equality by stating: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Most federal agencies have an office of civil rights to ensure this right is protected. Regarding the global community, the UN Universal Declaration of Human Rights Article 1 states: “All human beings are born free and equal in dignity and rights.” Although these rights exist, environmental injustice persists. This stems from the burden of proof that is placed on community advocates. Additionally, the proving of intent of discrimination is difficult to prove even if the patter of disproportionate impact is racial. Claims of institutional racism have been prevalent in the history between the EPA and EJ communities. Title VI complaints have been brought against the EPA on behalf of EJ communities. Representatives have argued that there has been a delay in responding to the complaints of EJ communities because of their race (Earthjustice 2015). To address these, it seems that environmental justice policy should include a legal right to a clean environment. The hope is that this approach would alter the regulatory 137 approach. Instead of communities having to prove that they are and have been suffering environmental harms, regulation may require a buffer zone between facilities and communities to ensure a clean environment. Moreover, facilities will be expected to have more protective and environmentally friendly technologies to ensure that rights are respected rather than prioritizing financial burdens of corporations over the livelihoods of communities. Concluding Thoughts Current EJ policy focuses on three main methods of attacking environmental injustice: grants, trainings, and facilitating compensation from corporations. This discussion concludes that grants and trainings shift the responsibility to communities, rather than the violating facilities. A rights-based approach has the ability to reshape EJ policy to a point where facilities would be required to take every measure not to infringe on a community’s right to a clean environment, regardless of the communities race or income. Material forms of environmental compensation, such as the artifacts brought to a community in SEP projects, also fall short in addressing environmental injustice in both a utilitarian and rights-based discussion. Environmental compensation is inadequate in many ways, mainly due to the fact that one cannot quantify equality. Thus, one cannot equitably compensate someone for being treated in an unfair or unequal manner. This is not to say that one should not be compensated for an instance of harm. I am arguing that a compensation approach is not sufficient on its own. I suggest that EPA EJ policy should go further and not only enforce a more equitable and strict 138 compensation policy, but also create rights for environmental justice communities that ensure that a facility will take every measure to mitigate excessive pollution and contamination. Further, defining terms such as “excessive” should be a collaborative process with community advocates present and heard. While my analysis is done in a United States context, the concepts of justice discussed throughout the thesis can be extrapolated to a broader scale. The environmental justice movement finds its root in the United States, but it is a global issue in that there are fence-line communities like Port Arthur, Texas all over the world. Also, there are examples of communities in developing countries suffering an inequitable distribution of environmental burdens due to the decisions and actions made in the developed world (Walker 2009). The global community and environmental policy would benefit from further research regarding equitable compensation and appropriate rights language in the context of the global environmental justice. 139 REFERENCES Biehler, D. D. & G. L. Simon (2011) The Great Indoors: Research Frontiers on Indoor Environments as Active Political-Ecological Spaces. Progress in Human Geography, 35, 172-192. Bondi, L. (2005) Working the Spaces of Neoliberal Subjectivity: Psychotherapeutic Technologies, Professionalization and Counseling. Antipode, 37, 497-514. Brand, P. (2007) Green Subjection: The Politics of Neoliberal Urban Environmental Management. International Journal of Urban and Regional Research, 31, 616- 632. US Fed News Service (2009) Bridgeport Selected As Environmental Justice Showcase Community. Brown, B. J. & S. Baker. 2012. Responsible citizens: Individuals, health, and policy under neoliberalism. Anthem Press. Bryson, J. (2012). Brownfields Gentrification: Redevelopment Planning and Environmental Justice in Spokane, Washington. Environmental Justice 5(1): 26- 31. Bullard, R. D. (1992) Environmental Blackmail in Minority Communities. Race and the Incidence of Environmental Hazards, 82-95. Bullard, R. D. & B. Wright. 2010. Race, Place, and Environmental Justice After Hurricane Katrina: Struggles to Reclaim, Rebuild, and Revitalize New Orleans and the Gulf Coast. 140 Burda, M. and M. Harding (2014). Environmental Justice: Evidence from Superfund Cleanup Durations. Journal of Economic Behavior and Organization 107(PA): 380-401. Bureau of Labor Statistics (BLS) (2015). Unemployment Rates for Metropolitan Areas. Local Area Unemployment Statistics. U.S. Department of Labor. Castree, N. (2008) Neoliberalising Nature: The Logics of Deregulation and Reregulation. Environment and planning. A, 40, 131. Clinton, W. J. (1993) Executive Order 12866: Regulatory Planning and Review. Federal Register, 58, 51735-51744. Clinton, W. J. 1994. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. 59 FR 7629. February. Cohen, A. & J. McCarthy (2015) Reviewing Rescaling Strengthening the Case for Environmental Considerations. Progress in Human Geography, 39, 3-25. Davis, D.-A. (2007) Narrating the Mute: Racializing and Racism in a Neoliberal Moment 1 2. Souls, 9, 346-360. De León, Arnoldo and Calvert, Robert A. (2013), "SEGREGATION," Handbook of Texas Online accessed November 30, 2015. Texas State Historical Association. Dragu, I.-M. 2013. United Nations Universal Declaration of Human Rights. Encyclopedia of Corporate Social Responsibility, 2632-2638. 141 Earthjustice 2015. "EPA Must End Discrimination, Stop States from Permitting Polluters in Overburdened Communities of Color 10+ Years of Delays in Civil Rights Investigations Threatens Health of Communities Nationwide." Echols, A. 1999. Scars of Sweet pParadise: The Life and Times of Janis Joplin. Macmillan. EIA (2014). "Texas State Energy Profile." U. S. Energy Information Administration. U. S. Energy Information Administration. Ekers, M. & A. Loftus (2008) The Power of Water: Developing Dialogues Between Foucault and Gramsci. Environment and planning. D, Society and Space, 26, 698. Emsellem, M., L. Moskowitz, M. Neighly & J. Warner. 2009. A Scorecard on the Post- 9/11 Port Worker Background Checks: Model Worker Protections Provide a Lifeline for People of Color, While Major TSA Delays Leave Thousands Jobless During the Recession. National Employment Law Project. EPA 2001: U.S. EPA. Administrator Whitman Reaffirms Commitment To Environmental Justice. Newsroom. Environmental Protection Agency. EPA 2009a: U.S. EPA. EPA Announces Environmental Justice Showcase Communities. Newsroom. Environmental Protection Agency. EPA 2009b: U.S. EPA. Administrator Lisa P. Jackson, Remarks to the Environmental Justice Stakeholders Meeting in New Bedford, Massachusetts, As Prepared. Newsroom. Environmental Protection Agency. 142 EPA 2009c: U.S. EPA. Administrator Lisa P. Jackson, Remarks to the National Environmental Justice Advisory Council, As Prepared. Speeches By EPA Administrator. Environmental Protection Agency. EPA 2009d: U.S. EPA. Administrator Lisa P. Jackson, Remarks to the Environmental Justice Steering Committee, As Prepared. Speeches By EPA Administrator. Environmental Protection Agency. EPA 2010a: U.S. EPA. Administrator Lisa P. Jackson, Remarks to the Conference on Environmental Justice, Air Quality, Goods Movement and Green Jobs, As Prepared. Speeches By EPA Administrator. Environmental Protection Agency. EPA 2010b: U.S. EPA. Administrator Lisa P. Jackson, Remarks at the Symposium to Strengthen Research and Policy on Environmental Justice, As Prepared. Speeches By EPA Administrator. Environmental Protection Agency. EPA 2010c: U.S. EPA. Headquarters. EJ Showcase Communities Implementation Plan. 2010. EPA 2010d: United States. Environmental Protection Agency. Office of Environmental Justice and Office of Sustainable Communities. Environmental Justice and Sustainability Reference Deskbook. By US EPA Office of Environmental Justice and Office of Sustainable Communities. 2010. EPA 2010e: United States. Environmental Protection Agency. Region 5. Environmental Justice Showcase Community: Milwaukee Project. 2010. 143 EPA 2011a: U.S. EPA. Obama Administration Advances Efforts to Protect Health of U.S. Communities Overburdened by Pollution / Federal Agencies Sign Environmental Justice Memorandum of Understanding. Newsroom. Environmental Protection Agency. EPA 2011b: United States. Environmental Protection Agency. Office of Environmental Justice. An Update on Ongoing and Future EPA Actions to Empower Communities and Advance the Integration of Environmental Justice in Decision Making and Research. EPA 2011c: United States. Environmental Justice Agency. Region 4. EJ Showcase: A Project Update Newsletter from EPA Region 4. EPA 2011d: United States. Environmental Protection Agency. Region 5. Draft Summaries of Successes/Lessons Learned from Ongoing Work in Environmental Justice Showcase Communities. EPA 2011e: United States. Environmental Protection Agency. Region 6. Port Arthur Environmental Justice Showcase Community Project Update : OEJTA. EPA 2012a: "Environmental Justice Showcase Communities Program." EPA. Environmental Protection Agency. EPA 2012b: United States. Environmental Protection Agency. Office of Environmental Justice. Environmental Justice Fact Sheet. EPA 2012c: "Region 2 EJ Showcase Community: Staten Island, NY." EPA. Environmental Protection Agency. 144 EPA 2012d: "Region 3 EJ Showcase Community: Washington, DC." EPA. Environmental Protection Agency. EPA 2012e: "Region 4 EJ Showcase Community: Jacksonville, FL." EPA. Environmental Protection Agency. EPA 2012f: "Region 5 EJ Showcase Community: Milwaukee, WI." EPA. Environmental Protection Agency. EPA 2012g: United States. EPA. Region 6. Final Report: Port Arthur-Environmental Justice Showcase Communities Pilot Program Analysis. EPA 2012h: "Region 7 EJ Showcase Community: Kansas City Metropolitan Area." EPA. Environmental Protection Agency. EPA 2012i: "Region 8 EJ Showcase Community: Salt Lake City, UT." EPA. Environmental Protection Agency. EPA 2012j: "Region 9 EJ Showcase Community: Los Angeles, CA." EPA. Environmental Protection Agency. EPA 2012k: "Region 10 EJ Showcase Community: Yakima Valley, WA." EPA. Environmental Protection Agency. EPA 2014: "EPA." Region 1 (New England). EPA 2015. "Supplemental Environmental Projects (SEPs)." Enforcement. Essoka, J. (2010). "The Gentrifying Effects of Brownfields Redevelopment." Western Journal of Black Studies 34(3): 299-315. Feldman, S., C. C. Geisler & G. A. Menon. 2011. Accumulating Insecurity: Violence and Dispossession in the Making of Everyday Life. University of Georgia Press. 145 Fisher, M. (1995) Environmental Racism Claims Brought Under Title VI of the Civil Rights Act. Environmental Law, 25, 285. "Jacksonville, FL." Forbes. Forbes Magazine, 2014. Goldberg, D. T. (2009) The Threat of Race: Reflections on Racial Neoliberalism. Gouldson, A. (2006) Do Firms Adopt Lower Standards in Poorer Areas? Corporate Social Responsibility and Environmental Justice in the EU and the US. Area, 38, 402-412. Hartley, T. W. (1995) Environmental Justice. Environmental Ethics, 17, 277-289. Holifield, R. (2004) Neoliberalism and Environmental Justice in the United States Environmental Protection Agency: Translating Policy into Managerial Practice in Hazardous Waste Remediation. Geoforum, 35, 285-297. Holifield, R. (2012). "The Elusive Environmental Justice Area: Three Waves of Policy in the US Environmental Protection Agency." Environmental Justice 5(6): 293- 297. Holifield, R. (2014). "Environmental Reviews and Case Studies: Accounting for Diversity in Environmental Justice Screening Tools: Toward Multiple Indices of Disproportionate Impact." Environmental Practice 16(1): 77-86. Jackson. "Seven Priorities for EPA’s Future." Administrators Site RSS, 2009. Jepson, W. & H. L. Brown (2014) ‘If No Gasoline, No Water’: Privatizing Drinking Water Quality in South Texas Colonias. Environment and Planning A, 46, 1032- 1048. 146 Johnson, J. (1996). Environmental Justice Grants ‘Level the Playing Field’. Environmental Science & Technology 30(1): 21A. Klepper, Christine (2014) Final Report Housing Mobility Program. Port Arthur Housing Authority. Lee, S. and P. Mohai (2012). Environmental Justice Implications of Brownfield Redevelopment in the United States. Society and Natural Resources 25(6): 602- 609. Low, N. & B. Gleeson. 1998. Justice, Society, & Nature. Taylor & Francis. Maniates, M. F. (2001) Individualization: Plant a Tree, Buy a Bike, Save the World? Global Environmental Politics, 1, 31-52. Mansfield, B. (2012) Race and The New Epigenetic Biopolitics of Environmental Health. BioSocieties, 7, 352-372. Maranville, A. R., T. F. Ting, et al. (2009). An Environmental Justice Analysis: Superfund Sites and Surrounding Communities in Illinois. Environmental Justice 2(2): 49-56. Marston, S. & K. Mitchell. 2004. Citizens and The State: Citizenship Formations in Space and Time. Sage: London, UK. Mohai, P., D. Pellow & J. T. Roberts (2009) Environmental Justice. Annual Review of Environment and Resources, 34, 405-430. National People of Color (1991) Principles of Environmental Justice ratified at the First People of Color Environmental Leadership Summit, Washington DC October. 147 Noonan, D. S., R. M. R. Turaga, et al. (2009). Superfund, Hedonics, and the Scales of Environmental Justice. Environmental Management 44(5): 909-920. Obama, B. (2011) Executive Order 13563: Improving Regulation and Regulatory Review. Federal Register, 76, 3821-3823. Office of Safety, Energy and the Environment (OSEE). "Bridgeport, Connecticut." Sustainable Communities. Office of Senator Charles E. Schumer. Schumer, McMahon Announce Major Step Forward In Battle To Clean Up Lead Laden Seduttos Site-EPA Responded To Calls By Taking Action And C ommitting Funds To North Shore Of SI. Senator Charles E. Schumer. Okereke, C. (2006) Global Environmental Sustainability: Intragenerational Equity and Conceptions of Justice in Multilateral Environmental Regimes. Geoforum, 37, 725-738. O'Neil, S. G. (2007). Superfund: Evaluating the Impact of Executive Order 12898. Environmental Health Perspectives 115(7): 1087-1093. O’Reilly, K. (2006) “Traditional” Women, “Modern” Water: Linking Gender and Commodification in Rajasthan, India. Geoforum, 37, 958-972. O'Reilly, K. & R. Dhanju (2014) Public Taps and Private Connections: The Production of Caste Distinction and Common Sense in a Rajasthan Drinking Water Supply Project. Transactions of the Institute of British Geographers, 39, 373-386. Passavant, P. A. (2005) The Strong Neo-liberal State: Crime, Consumption, Governance. Theory & Event, 8. 148 Peck, J. & A. Tickell (2002) Neoliberalizing Space. Antipode, 34, 380-404. Povinelli, E. A. 2011. Economies of Abandonment: Social Belonging and Endurance in Late Liberalism. Duke University Press Durham, NC. Prochaska, J. D., A. B. Nolen, H. Kelley, K. Sexton, S. H. Linder & J. Sullivan (2014) Social Determinants of Health in Environmental Justice Communities: Examining Cumulative Risk in Terms of Environmental Exposures and Social Determinants of Health. Human and Ecological Risk Assessment: An International Journal, 20, 980-994. Prudham, S. (2004) Poisoning the Well: Neoliberalism and The Contamination of Municipal Water in Walkerton, Ontario. Geoforum, 35, 343-359. Pulido, L. (2000) Rethinking Environmental Racism: White Privilege and Urban Development in Southern California. Annals of the Association of American Geographers, 90, 12-40. Pulido, L., E. Kohl & N.-M. Cotton (2016) State Regulation and Environmental Justice: The Need for Strategy Reassessment. Capitalism Nature Socialism, 1-20. Raco, M. (2005). Sustainable Development, Rolled-out Neoliberalism and Sustainable Communities. Antipode 37(2): 324-347. Rahm, D. (1998). Superfund and The Politics of US Hazardous Waste Policy. Environmental Politics 7(4): 75-91. Revesz, R. L. (1999) Environmental Regulation, Cost-Benefit Analysis, and The Discounting of Human Lives. Columbia Law Review, 941-1017. 149 Roberts, D. J. & M. Mahtani (2010) Neoliberalizing Race, Racing Neoliberalism: Placing “Race” in Neoliberal Discourses. Antipode, 42, 248-257. Salt Lake County (SLC). (2014). Community Resources and Development. Refugee Assistance. Schlosberg, D. (2004) Reconceiving Environmental Justice: Global Movements and Political Theories. Environmental Politics, 13, 517-540. Schlosberg, D. & D. Carruthers (2010) Indigenous Struggles, Environmental Justice, and Community Capabilities. Global Environmental Politics, 10, 12-35. SCOTUS 2015: Supreme Court of the United States. "Equal Justice Under Law." The Court and Constitutional Interpretation. Shannon, James. 2012. EPA Chief Here for Westside Health Clinic Groundbreaking. The Examiner:News. Sheffey, Irv. "Environmental Justice and Community Partnerships." Washington, D.C. Sierra Club. Sherry, Virginia N. "EPA Names North Shore 'A Showcase Community'" SIlive. , 23 Sept. 2010. Solitare, L. and M. Greenberg (2002). Is the U.S. Environmental Protection Agency Brownfields Assessment Pilot Program Environmentally Just? Environmental Health Perspectives 110(SUPPL. 2): 249-257. Sparke, M. B. (2006) A Neoliberal Nexus: Economy, Security and the Biopolitics of Citizenship on the Border. Political Geography, 25, 151-180. 150 Stockholm Declaration (1972) Declaration of the United Nations Conference on the Human Environment. Storey, John W. (2010), "Port Arthur, Tx," Handbook of Texas Online. Stretesky, P. and M. J. Hogan (1998). Environmental Justice: An Analysis of Superfund Sites in Florida. Social Problems 45: 268. U. C. C. C. (1987) Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities With Hazardous Waste Sites. U.S. Census (2010). Port Arthur (city) QuickFacts from the US Census Bureau. U.S. Census Bureau. TSA (2016). Disqualifying Offenses. Department of Homeland Security. Vajjhala, S. P. (2010). Building Community Capacity? Mapping the Scope and Impacts of EPA’S Environmental Justice Small Grants Program. Research in Social Problems and Public Policy 18: 353-381. Walker, G. & K. Burningham (2011) Flood Risk, Vulnerability and Environmental Justice: Evidence and Evaluation of Inequality in a UK context. Critical Social Policy. Walker, G. 2012. Environmental Justice: Concepts, Evidence and Politics. Routledge. Young, I. M. 2011. Justice and the Politics of Difference. Princeton University Press. 151 APPENDIX A FIGURES Figure 1: Power dynamics between Neoliberal Culture, State, Industry, and EJ Community 152 Figure 2: Map of Environmental Justice Showcase Community Westside Port Arthur, Texas Source: http://www3.epa.gov/environmentaljustice/grants/ej-showcase-r06.html 153 Figure 3: Carver Terrace Fence-line Community near Motiva Refinery 154 Figure 4: Downtown Port Arthur 1 (Proctor Street) 155 Figure 5: Downtown Port Arthur 2 (Proctor Street) 156 Figure 6: Screenshot of GTEC Intake Process Source: http://www.gtec-triangle.org/Who%20is%20GTEC.html 157 Figure 7: Gulf Coast Health Center 158 Figure 8: Westside Development Center 159 Figure 9: “Thank You Motiva” Neon Sign 160 Figure 10: GTEC Storefront Sign 161 Figure 11: EJ Policy CBA Rationale *Example of Compensatory environemnal justice CBA rationale 162 APPENDIX B: ENVIRONMENTAL JUSTICE PRINCIPLES Source: National People of Color 1991 WE, THE PEOPLE OF COLOR, gathered together at this multinational People of Color Environmental Leadership Summit, to begin to build a national and international movement of all peoples of color to fight the destruction and taking of our lands and communities, do hereby re-establish our spiritual interdependence to the sacredness of our Mother Earth; to respect and celebrate each of our cultures, languages and beliefs about the natural world and our roles in healing ourselves; to ensure environmental justice; to promote economic alternatives which would contribute to the development of environmentally safe livelihoods; and, to secure our political, economic and cultural liberation that has been denied for over 500 years of colonization and oppression, resulting in the poisoning of our communities and land and the genocide of our peoples, do affirm and adopt these Principles of Environmental Justice: The Principles of Environmental Justice (EJ) 1) Environmental Justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction. 2) Environmental Justice demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias. 3) Environmental Justice mandates the right to ethical, balanced and responsible uses of land and renewable resources in the interest of a sustainable planet for humans and other living things. 4) Environmental Justice calls for universal protection from nuclear testing, extraction, production and disposal of toxic/hazardous wastes and poisons and nuclear testing that threaten the fundamental right to clean air, land, water, and food. 5) Environmental Justice affirms the fundamental right to political, economic, cultural and environmental self- determination of all peoples. 6) Environmental Justice demands the cessation of the production of all toxins, hazardous wastes, and radioactive materials, and that all past and current producers be held strictly accountable to the people for detoxification and the containment at the point of production. 7) Environmental Justice demands the right to participate as equal partners at every level of decision- making, including needs assessment, planning, implementation, enforcement and evaluation. 8) Environmental Justice affirms the right of all workers to a safe and healthy work environment without being forced to choose between an unsafe livelihood and unemployment. It also affirms the right of those who work at home to be free from environmental hazards. 9) Environmental Justice protects the right of victims of environmental injustice to receive full compensation and reparations for damages as well as quality health care. 10) Environmental Justice considers governmental acts of environmental injustice a violation of international law, the Universal Declaration On Human Rights, and the United Nations Convention on Genocide. 11) Environmental Justice must recognize a special legal and natural relationship of Native Peoples to the U.S. government through treaties, agreements, compacts, and covenants affirming sovereignty and self-determination. 12) Environmental Justice affirms the need for urban and rural ecological policies to clean up and rebuild our cities and rural areas in balance with nature, honoring the cultural integrity of all our communities, and provided fair access for all to the full range of resources. 13) Environmental Justice calls for the strict enforcement of principles of informed consent, and a halt to the testing of experimental reproductive and medical procedures and vaccinations on people of color. 14) Environmental Justice opposes the destructive operations of multi-national corporations. 15) Environmental Justice opposes military occupation, repression and exploitation of lands, peoples and cultures, and other life forms. 16) Environmental Justice calls for the education of present and future generations which emphasizes social and environmental issues, based on our experience and an appreciation of our diverse cultural perspectives. 17) Environmental Justice requires that we, as individuals, make personal and consumer choices to consume as little of Mother Earth's resources and to produce as little waste as possible; and make the conscious decision to challenge and reprioritize our lifestyles to ensure the health of the natural world for present and future generations. More info on environmental justice and environmental racism can be found online at www.ejnet.org/ej/ Delegates to the First National People of Color Environmental Leadership Summit held on October 24-27, 1991, in Washington DC, drafted and adopted these 17 principles of Environmental Justice. Since then, the Principles have served as a defining document for the growing grassroots movement for environmental justice. 
work_uqthucvivfhnhlxotxgi7wk2l4	----	Climate Justice and Territorial Rights Chris Armstrong (Politics & IR, University of Southampton) C.Armstrong@soton.ac.uk CSSJ Working Papers Series, SJ023 April 2014 Centre for the Study of Social Justice Department of Politics and International Relations University of Oxford Manor Road, Oxford OX1 3UQ United Kingdom Tel: +44 1865 278703 Fax: +44 1865 278725 http://social-justice.politics.ox.ac.uk http://social-justice.politics.ox.ac.uk/ CSSJ Working Paper SJ023 April 2014 2 Climate Justice and Territorial Rights 1 I. When we engage in activities that cause greenhouse gases to be emitted, we thereby consume some of the capacity of the world’s ‘carbon sinks’ – and their capacity, we now understand, is limited. 2 The sequestering capacities of these sinks function as a ‘collective’ good: one which individuals cannot be practically excluded from consuming, but also one where each act of consumption leaves less for others now and in the future. Political theorists have, accordingly, devoted considerable attention to the question of just how permissions to use up sink capacity should be distributed. One very well-known answer to that question is the equal per capita principle, which would simply divide extant sink capacity into equal slices, setting for each person an identical emissions budget (on many proposals, unused emissions space might then be traded with others). The normative appeal of that principle is often thought to be self-evident. Surely, the thought goes, our entitlements to make use of carbon sinks must be symmetrical? After all, none of us put those sinks there and no-one, therefore, appears to have any special claim over them. In his discussion of rights over atmospheric sinks, Peter Singer has suggested that ‘If we begin by asking “Why should anyone have a greater claim to part of the global atmospheric sink than any other?” then the first, and simplest response is: “No reason at all.”’ 3 If it were adopted by a global agreement on climate mitigation, that principle would have radical effects. At present inhabitants of industrialized countries consume a share of the capacity of the world’s carbon sinks far in excess of what would be sustainable if others acted in the same way. The principle would ask them to severely contract their emissions, and allow inhabitants of developing countries to eventually ‘converge’ upwards on the per capita emissions benchmark. But on closer inspection the principle of equal per capita emissions (hereafter EPC) loses much of its appeal. People consume a wide range of goods, and most theories of distributive justice express concern with holdings in a fairly broad set of them. Why then insist on equal shares of one good in particular? To be sure reasons can sometimes be provided for insisting on equal shares of particular goods, and for seeing shares of different goods accordingly as at least partly incommensurable. The principle of ‘one person, one vote’ CSSJ Working Paper SJ023 April 2014 3 is thought, by those committed to democracy, not to bend in light of facts about wealth or educational access. We do not simply give the poor or the educationally-deprived more votes – at least not if we are committed to seeing ourselves as equal citizens. But such reasons do not appear to apply in the case of the world’s greenhouse gas-sequestering capacity. 4 Given that they do not, insisting on equal emissions rights would be myopic even from an egalitarian point of view. Even if we restrict our attention to climate justice – rather than justice more broadly - egalitarians should prefer an account which considers a range of ecological ‘credits’ and ‘debits,’ and calls for equality across this broad bundle of benefits and burdens. Some countries, to give an example, may produce massive quantities of harmful pollutants whereas others may go to great lengths to avoid doing so. Some countries – but not others - may spend large sums of money subsidising the spread of green technologies in the developing world. Some countries, moreover, might already be better off in other dimensions relevant to justice. All of these facts should matter when we come to allocate emissions rights. From that perspective whilst EPC might still be a big improvement on the status quo, it begins to look far from ideal. There may, though, be a second reason for doubting the appeal of EPC, and it will be my focus in this chapter. As I just suggested the argument for EPC usually leans on an assumption that no-one has created, or is responsible for the existence of, the earth’s GHG- sequestering capacity. 5 But perhaps this is too quick. It may well be true, as Singer suggests, that no-one created the atmosphere’s sequestering capacity. We might say the same about the oceans. But it is less certain that we can say the same thing for all carbon sinks. Perhaps agents are (at least sometimes) responsible for the sequestering capacity of sinks currently under their territorial control, for instance. ‘Terrestrial’ carbon sinks include, most famously, tropical rainforests – the so-called ‘lungs of the world’ - but also the soil, lakes, and other vegetation contained in particular geographical areas. These terrestrial sinks, significantly, are located within the borders of states which might be thought to have territorial rights over them, and it might be thought that citizens of those states have special claims over their sequestering capacity. If the argument holds one possible implication is that the capacity of such sinks ought to be considered, within any treaty on climate justice, as a ‘credit’ on the part of the states within which they are located. Perhaps the greenhouse gases absorbed by a state’s rainforests ought to be deducted from its notional emissions total (or, to put it the other way, added to its CSSJ Working Paper SJ023 April 2014 4 emissions quota). If good arguments can be made to that effect, then it looks as though a serious engagement with questions about territorial rights is necessary and that it looks likely to complicate what we must say about climate justice. Theorists of climate justice could then not avoid taking a stance on thorny questions about just who should enjoy territorial rights over which parts of the earth. But does the argument hold? This chapter critically examines the arguments that might be made in favour of treating sink capacity as a ‘credit’ on the part of states with terrestrial sinks within their borders, and in fact suggests that they do not deliver on the conclusion that states with terrestrial sinks should be granted extra emissions entitlements. The final section, though, considers a quite different argument which suggests that we may nevertheless have duties to make transfers to states with important carbon sinks. Even if we reject the idea that terrestrial sink capacity belongs to the states in which it resides, we can nevertheless have duties of justice to offset the costs involved in protecting that capacity. We can embrace payments for sink protection, then, even at the same time as rejecting local sink ownership. II. A young hardwood tree stands in a tropical forest surrounded by millions of others like it. As it grows, it absorbs carbon dioxide from the air (whilst also drawing water from the earth, and fixing energy from the sun within its leaves). When it dies much of the carbon dioxide it contains will be released back into the atmosphere, with the remainder entering the soil. But in the meantime, it represents a tiny carbon sink. So just who, if anyone, is the rightful owner of its sink capacity? All of humankind? Members of the indigenous community who eke out a living in the forest nearby? Or the population of the state in which the forest lies, granted ‘permanent sovereignty’ over their natural resources under international law? In an important recent piece Megan Blomfield has examined some of the arguments which might be introduced to justify claims on the part of local communities. While she does not argue for state ownership of sink capacity (since she remains agnostic both on the claims of states as opposed to other communities, and on whether ownership of sink capacity is the best response to sound claims), her argument presents a useful opportunity to assess the basis and strength of any local claims. One objection to equal per capita emissions, she notes, is precisely that it ignores the fact that greenhouse gases are absorbed, inter alia, by terrestrial CSSJ Working Paper SJ023 April 2014 5 sinks over which individual states are often thought to have rights. 6 Although the atmosphere may rightly be regarded as a global commons, perhaps terrestrial sinks should not. Respect for territorial rights may therefore produce at least a partial answer to the rhetorical question posed by Singer. If my state contains major terrestrial sinks, the answer might go, then perhaps I should be allowed to consume more of the earth’s sequestering capacity. But what is the basis of local claims over terrestrial sinks? And how robust are those claims? That will depend on the robustness of the general case that can be made for states’ control over natural resources. It seems to me that three arguments might be invoked in defence of communal resource claims, 7 and Blomfield advances versions of all three in order to render plausible the view that local communities may have claims over the sequestering capacity of sinks contained within their territories. But are the three arguments likely to deliver on the conclusion that locals have a claim over the capacity of terrestrial sinks? Attachment Consider, first, the argument from attachment. Here the thought is that the communities which currently control terrestrial sinks (such as rainforests) might be strongly attached to them, and indeed their very identities might be bound up in their control over or access to them. 8 If a community is strongly attached to a sink in this way – such that control over it or access to it is essential to that community’s sense of self – then perhaps this gives us a reason to treat the sequestering capacity of that sink as something that properly belongs to the community in question. 9 I have suggested elsewhere that theorists of justice both can and should take such attachments seriously. If we have reasons for caring about life-plans which play a central part in people’s lives – and surely a wide range of theories of justice can marshal such reasons – then we derive reasons for caring about people’s secure access to the supports for those plans, which in some cases will include specific natural resource tokens. Even if a concern for such life-plans does not establish that people with significant attachments to resources are entitled to more than others, it can establish a pro tanto reason for permitting such people to retain access to the particular resources they happen to be attached to. 10 But when we invoke arguments from attachment we need to carefully specify not only which resources are crucial to important life-plans, but also which rights over those resources CSSJ Working Paper SJ023 April 2014 6 those life-plans are genuinely dependent on. Most importantly, we should not assume that wherever attachment over an external object is at stake nothing other than full rights of ‘liberal ownership’ are capable of supporting the relevant plans. Very often they will turn out to demand something considerably more limited than that. In many cases, attachment appears to require that the agent so attached should have the right to securely access a resource, and this requires that we prevent others from degrading or destroying it or placing it beyond their reach. It is far from obvious, though, that respecting attachment requires that we grant the attached party ownership over any and all benefits flowing from the resource in question. For instance, imagine that I am attached to a river near my home. One of my most central life- plans is to continue to fish from it, bathe in it, and drink from it. Protecting this ability requires continued access and, in this case, some rights to withdraw fish and water (which rights might also, plausibly, be held by many others). It does not appear to require that when others obtain benefits from that river they pay me for doing so. Their plans and mine are entirely compatible without any such side-payments. Respecting my attachment to the river does not justify granting me a monopoly over its benefits or a full set of resource rights. Let us return to the case of rainforests with this caution in mind. We can again readily perceive that attachment to a rainforest – or the on-going and central project of being a forest- dweller, say - is going to be thwarted when we bar people from a forest, or when we destroy it. But of course no-one in debates about climate justice is suggesting that we should exclude locals from the rainforests, or that we should tear them down. Quite the opposite: outsiders would prefer rainforests to continue to exist, to the extent that there is a live debate about whether locals should actually be paid not to tear down their forests (see section III). But that is entirely distinct from the question of who has the right to benefit from their sink capacity. Here it is simply not clear that attachment-based claims over geographical sites like rainforests are thwarted when we treat their capacity as shared assets rather than private ones. We can respect the rights of forest-dweller to dwell in forests, or of forest peoples to see themselves as, and to engage in the customary practices of, forest peoples, without granting forest-dwellers ownership over the sink capacity of the forests they dwell in when we come to draw up a global agreement on climate justice. Their life-plans do not appear to depend upon whether the greenhouse gases absorbed by the forest are French, Chinese or Tunisian in origin. 11 Respecting the attachment-based special claims of forest-dwelling peoples appears compatible, then, with a wide range of views on how we should allocate sink capacity. CSSJ Working Paper SJ023 April 2014 7 Self-determination Consider, second, the argument from self-determination. This argument will attempt to show that, since control over natural resources is an important component of the self-determination of a political community, to deny that the sequestering capacity of a rainforest belongs to the country in which it is contained is to deny that country its right of self-determination. Accordingly, the (steep) challenge faced by self-determination-based arguments is to show how control over any particular resource or set of resources is indeed indispensable for self- determination. Any view which stipulates that full control over all of the resources which happen to fall within a state’s territory is essential for its self-determination will, it seems to me, stretch credulity, and moreover will be unappealing as a conception of self-determination to anyone concerned with global distributive injustices. After all, some countries possess resources greatly in excess of anything they might feasibly use themselves, whereas other countries – which presumably have just the same right to be self-determining – struggle to make ends meet through no fault of their own. If we believe that self-determination is universally valuable, we might instead prefer on that basis a regime under which states with ‘excess’ resources remitted some of them to states with very little. Not all defences of self-determination, though, appear to demand such untrammelled resource rights. In fact the best recent defences of self-determination – particularly functionalist or ‘legitimacy-based’ accounts – appear compatible with considerably less. On the most prominent functionalist view, states are only legitimate insofar as they meet their citizens’ basic rights, and they ought to be able to avail themselves of the resources contained within their territories when those resources are necessary to meeting those rights. 12 Blomfield’s argument is compatible with this more limited functionalist view: ‘some control over resources,’ she tells us, ‘appears to be an enabling condition of collective self- determination.’ 13 But endorsing this more nuanced view makes it difficult to say anything definitive about the degree of resource control we should favour across the board. Self- determination will, to be sure, be thwarted when other communities intervene to remove, destroy or restrict the use of particular resources such that a state is unable to meet the basic rights of its citizens. But we do not get from this argument any automatic presumption of control over a particular resource. We would need to make the case contextually, by providing reasons for believing that control over this resource was in fact necessary for CSSJ Working Paper SJ023 April 2014 8 meeting basic rights. Most likely we are pushed towards a regime where states retain control over a (fairly minimal) set of resources insofar as these prove necessary to meeting basic rights, but where the remaining ‘excess’ – which in many cases would be a very large excess – will be untouched by that claim, and will be vulnerable to redistributive claims on the part of communities struggling to exercise self-determination with the resources currently available to them. On this account, then, what actually needs to be demonstrated is that not granting forested states ownership of the sink capacity of their forests (and not granting them, therefore, extra emissions rights) will in fact leave their ability to exercise self-determination compromised. It seems to me that that case is going to be a hard one to make. We would need to show that without these extra emissions rights, at least some of the relevant countries would be unable to meet the basic rights of their citizens. The difficulty here will be that forest states with endemic poverty – or which have demonstrated an ongoing failure to meet basic rights – are also likely to be low-emitters. Countries such as Ecuador or Cameroon, for example, are currently emitting considerably below what even an equal per capita principle would grant them, and hence would already have license to ratchet emissions up considerably. Any argument for the necessity of extra emissions rights on their part therefore threatens to be superfluous. Brazil might be a different kind of case. It is already emitting close to, or beyond, what an equal per capita principle would allow, and Brazilians might feel that they should be able to emit considerably more given the sink capacity contained in their territory. But whilst it might be able to marshal improvement- or protection-based arguments for special rights (see below), it is hard to see how respect for its self-determination exerts any real pressure in this direction. 14 Improvement This leaves us with a third argument, from improvement. Agents sometimes act on natural resources in such a way as to make them more economically valuable. Perhaps they refine or purify them, or prune and tend them, in such a way as to make the benefits they supply us more bountiful or more precious. Agents can also increase the quantity of natural resources, as when they breed animals, or sow plants, or extend the range of forests. When these kinds of actions occur it seems plausible to suggest that the agents responsible for them thereby CSSJ Working Paper SJ023 April 2014 9 generate some entitlements. Given that the value of the resources in question has been augmented the entitlement, on one view, would be to the increased value itself. 15 There are two kinds of reason for holding that agents can generate such entitlements through their improving actions. A direct reason would suggest that other things being equal justice is served better when agents retain benefits for whose existence they are responsible. Blomfield expresses this kind of argument in the language of desert, but we could, alternatively, describe the idea as a way of catering to the value of responsibility. 16 We could also endorse such an idea for instrumental reasons. Perhaps it is socially desirable that agents have incentives to improve resources, and to create value which would not exist otherwise. Perhaps this allows us to serve ends of justice such as the funding of public goods, or wealth redistribution. If allowing agents to retain some of the value or benefits they create when they improve resources is the best – or perhaps the only – way of doing so, we have a reason for allowing entitlements to track such acts. 17 In principle we could accept one of these reasons whilst remaining sceptical of the other. Often, though, both sets of reasons figure in accounts of entitlements. 18 Such an argument could reasonably be applied to terrestrial sinks. The capacities of carbon sinks can be enhanced, as when new trees are planted which sequester greenhouse gases more effectively than older trees. Forests can also be extended by new planting, again so as to sequester more gases. When agents act in such ways it is far from unreasonable to suggest that they generate entitlements over the extra sink capacity thereby created. Communities, on this view, would not have greater emissions rights simply because they have forests within their territories, but because in some way they are responsible for the existence of at least some of the trees in those forests. A system which tailored emissions entitlements to actions taken to extend forests, or enhance their sequestering capacities, would also be instrumentally attractive. It would generate incentives for communities to extend forests, whereas at present all too often incentives appear to be aligned in favour of deforestation. (Notably, such an account may also have wider implications. One of the major strands of development in geo-engineering – collectively known as Carbon Dioxide Removal – involves agents developing technologies such as bioenergy, ocean fertilization or enhanced weathering to remove greenhouse gases from the atmosphere. If such technologies succeed, in effect, in creating new carbon sinks, we will need moral guidance on what entitlements their schemes thereby generate. The improvement-based account would instruct us that their CSSJ Working Paper SJ023 April 2014 10 developers owned their sink capacity, and that under a scheme for emissions trading, for instance, they might have the right to sell that capacity on open markets). The argument from improvement appears capable of delivering quite plausible special claims over natural resources, then. In cases where a forest has been extended from five hectares to twenty hectares through careful planting and tending, we have at least a strong pro tanto reason to consider the agent the owner of the benefits (including greenhouse gas sequestration) delivered by the fifteen hectares of new forest. The pressing issue, to my mind, is not with the structure of the argument from improvement (although it may possess its own problems) but instead, once more, with whether it is at all likely to deliver on the desired conclusion that states (or other communities) should be seen as the owners of the sink capacity of forests within their borders. To put it bluntly it is not, by and large, the case that the rainforests in contemporary states were planted by the inhabitants of those states. Their inhabitants have done relatively little to increase that capacity over the years. To the contrary, year on year that capacity has been steadily – and sometimes rapidly - eroded. This triggers a difficult question about baselines. If the baseline for granting extra emissions rights is to be an historical one (so that the sink capacity which belongs to forested states is construed as present capacity minus capacity at some point in the past), then there will likely be no extra entitlements. There might even be debts. Perhaps we could pursue some other counterfactual, to the effect that although sink capacity is now no more – or perhaps considerably less – than it once was, it is nevertheless greater than it would have been had deforestation continued unchecked. But that would be a quite different argument, and would not lean on improvement at all, but rather on sacrifices made in the interests of forest preservation. I consider the implications of such an argument in the final section below. In sum, however attractive the improvement-based argument looks as a forward-looking theory of the acquisition of entitlements, it appears unable to deliver a backward-looking justification of extra emissions rights for forest states. III. If we are seeking a justification for extra emissions rights on the part of communities whose territories contain important carbon sinks, the arguments conventionally marshalled in favour of state sovereignty over natural resources turn out to assist very little. As a defence of extra CSSJ Working Paper SJ023 April 2014 11 emissions rights the argument from attachment is misdirected; the argument from self- determination also appears to connect rather poorly to the claim to extra emissions; and whilst the argument from improvement provides a plausible route towards extra entitlements, in practice it cannot take us very far in that direction. Local communities or states simply have not done enough to bring sink capacity about for the argument from improvement to be of much interest. Should we therefore reject the conclusion that states with terrestrial sinks might be entitled to more than those without? I suspect not. What is significant, I suggest, is not whether states or other communities create or improve sinks (which they rarely do), or indeed whether they become attached to them. One thing which states with sinks such as rainforests often do is to incur sacrifices. Let’s assume for now (normatively this is a very big assumption, though the status quo operates along just these lines) that each state has the right to use domestic natural resources in the interests of its own economic development. Assume also that whilst other states have a free rein to pursue economic development, states with terrestrial sinks stand to lose out on economic development opportunities if they protect or maintain those sinks. If at the same time we know that terrestrial sinks are an important bulwark against climate change, then we have a quandary. We may believe that forested states ought to preserve their forests (in light of the likely consequences of deforestation, we may even believe they have very firm duties of justice to do so). But we may also believe that it is unfair that those communities are required to sacrifice (some of) their development opportunities whereas others do not face similar restrictions. Selecting agents to hold duties on the basis of their capacity to perform them can make moral sense; but it can also produce distributive unfairness if those agents are at the same time required to bear all of the costs of meeting them. The problem may be intensified if forested states happen to be relatively poor, but there is an issue of justice whether or not this is so. When sacrifices are made – when forested states incur opportunity costs when they refrain from cutting down their forests to use the wood for timber, or the cleared ground for agriculture, for example – we may believe that the costs thereby incurred should be shared with outsiders. This would be a quite different argument to any of those considered earlier. Note that the arguments grounding special claims over natural resources considered in the last section apply readily to resources whose benefits are best conceived as private goods. If I improve the value of something (as when I refine a unit of crude oil), and if I can feasibly exclude CSSJ Working Paper SJ023 April 2014 12 others from enjoying those benefits, then a principle which dictates that I should be able to retain those benefits can get some traction. It may make sense to treat me as the owner of those benefits (if not, necessarily, the resource as a whole). It is less obvious that such a principle will be of much use in cases where others cannot be excluded from consuming benefits which we are responsible for the existence of – where benefits, that is, operate as public (including collective) goods. Here, I suspect, we want to turn to a quite different argument. The principle of fairness, when applied to the provision of public goods, suggests that those who benefit from public goods ought to share in the costs of their provision (provided the benefits are worth the costs, and the costs are fairly shared). 19 The ground is then open for us to try to show how protecting terrestrial sinks – enabling greater benefits to exist than would occur if they went unprotected – is morally akin to producing public goods. The details and precise implications of such an account would then need to be worked out. We would want to know just which costs should be shared, and when. Here reimbursing states for lost opportunity costs looks likely to be especially controversial. For an economist, the opportunity cost of rainforest protection lies in the revenues accruing to the most profitable use to which forests, or the land they occupy, could have been put. But perhaps some opportunities provide inappropriate benchmarks for compensation. Imagine, for instance, that a state would have allowed a forest to be razed for cocaine production. Would other states then have a duty to make up that shortfall? That seems unpalatable. More plausibly, we might compensate for the opportunity costs of activities which would generally have been permissible, but where some agents fall liable to a selective prohibition. Imagine that we are generally at liberty to pursue paid employment. But some individuals are selected, because of their strength, to protect our community from threat. It may make sense for them to bear this duty, but not for them to bear all of the (here, opportunity) costs of performing it. If so, the pooling of that opportunity cost is appropriate. The case for pooling the opportunity costs of rainforest protection operates according to the same logic: a general right to make the most of the natural resources within a territory is specifically truncated in the case of forest states; to pool those opportunity costs is to disentangle the duty to protect from the duty to bear the costs of protection alone. The argument from the principle of fairness appears to enjoy good prospects of success. 20 But two significant features of the argument require attention. First, note that the argument, far from justifying territorial rights, will not apply unless we presume something CSSJ Working Paper SJ023 April 2014 13 like territorial rights in the first place. We need to presume, that is, that states with sinks have the right, other things being equal, to develop those sinks for it to make sense for us to share with them the opportunity costs of refraining from such development. Someone who is resolutely opposed to a state’s right to use ‘its’ natural resources to fuel national development will require persuading on that point. Perhaps, we might say, even if permanent sovereignty should be rejected as a general principle, there are grounds for endorsing it where and insofar as it helps alleviate serious poverty, or reduce global inequalities. Some such argument has appealed to scholars of global justice in the past, and perhaps it can be reprised. 21 Second, the target of the argument is quite different to the one we started with. The argument targets transnational payments for protection, treating sink capacity as a public good whose provision properly needs common funding. Its objectives coincide, roughly, with what are known as ‘payments for environmental services,’ currently funded (in fact, chronically under-funded) through mechanisms such as REDD+. 22 However, no particular view on who ought to own, or have the right to use, the sink capacity thereby secured appears to flow directly from the account I am suggesting here. It is not obvious, that is, that the argument leads us to endorse local ownership over the emissions capacity which has been protected. The reverse might just as well be the case: perhaps the protected capacity should be treated as a common asset, since all of us have shared in the costs of its protection. 23 The argument for the pooling of protection costs offers no answer to that question. The argument from the principle of fairness, in short, grounds some entitlements (entitlements that costs should be shared, and not borne alone). But it does not ground a wider set of entitlements over protected sink capacity. 24 Note, finally, that if we pursued such an argument we would also need to take a position on just whom any payments for rainforest protection should percolate down to. We might simply treat states as agents and allow them to spend receipts from any protection schemes as they see fit. Or we might place constraints which sought to ensure that all citizens benefited – or that the poorest benefited the most. We might, in many real-world cases, want to ensure that the livelihoods of indigenous forest inhabitants were protected from disruption. In reality the effects of schemes to fund rainforest protection on indigenous groups have tended to be neutral at best, in the sense that they have not seen the benefits which have often been promised. In many cases they have suffered profoundly negative effects, including being excluded from the forests in which they have long lived in case their customary CSSJ Working Paper SJ023 April 2014 14 activities affect the way in which a forest’s sequestering capacity is estimated. 25 Given this tension, we would need to take a view on the difficult question whether payments for protection should be calibrated to serve local justice goals (such as equalizing incomes, or protecting the poor or the local indigenous populations), or whether they should be calibrated by results in protecting sink capacity. It would be tempting, but quite mistaken, to assume that such diverse goals as protecting sink capacity, maintaining biodiversity and protecting the ways of life of indigenous peoples all point towards the same institutional solutions. In practice a focus on maximising sink capacity has often led to backward steps in terms of biodiversity and indigenous rights. Developing policies which might pay proper heed to a more diverse set of goals is a formidable challenge. 1 Thanks to Megan Blomfield for a helpful discussion of some of the issues discussed in this paper. 2 Just how large we consider their capacity to be will hinge on the degree of climate change we believe is tolerable. Once we fix on a target – such as keeping global mean temperature rises under 2°C – we can then estimate a cumulative total for the greenhouse gases that can safely be emitted by human activities. The ‘Trillionth Tonne’ project, for instance, estimates that cumulative total at one trillion tonnes of CO₂, measured since 1750, and calculates that at current consumption levels we will have exhausted that capacity within thirty years. See www.trillionthtonne.org 3 Peter Singer, One World: the Ethics of Globalization (New Haven: Nota Bene Press, Second Edition 2004), at p. 35. 4 For a full and persuasive argument to that effect, see Simon Caney, ‘Just Emissions,’ Philosophy and Public Affairs 40.4 (2012): 255-300. See also Chris Armstrong, ‘Natural Resources: the Demands of Equality,’ Journal of Social Philosophy 44.4 (2013): 331-47. 5 See Singer, One World. For further defences of equal emissions on the basis of a view about sinks as global commons, see for instance Paul Baer, ‘Equity, Greenhouse Gas Emissions, and Global Common Resources,’ in Stephen Schneider, Armin Rosencranz and John Niles (eds) Climate Change Policy: A Survey (Wasington DC: Island Press, 2002): 393-408; Steve Vanderheiden, Atmospheric Justice (Oxford: Oxford University Press, 2008). For a view that common ownership of the atmosphere should be seen within the context of common ownership of the earth more broadly – precisely because no-one created either - see Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012), chapter 10. 6 Megan Blomfield, ‘Global Common Resources and the Just Distribution of Emissions Shares,’ Journal of Political Philosophy 21.3 (2013): 283-304. 7 The three arguments I canvass here are roughly equivalent to what Lea Ypi calls arguments from from attachment, from legitimacy, and from acquisition. Ypi, ‘Territorial Rights and Exclusion,’ Philosophy Compass 8.3 (2013): 241-53. For a fuller discussion of these arguments and an examination of their general prospects of supporting permanent sovereignty in particular,, see Chris Armstrong, ‘Against “Permanent Sovereignty” over Natural Resources,’ Politics, Philosophy and Economics (forthcoming 2014). 8 Blomfield, ‘Global Common Resources,’ at 294-6. http://www.trillionthtonne.org/ CSSJ Working Paper SJ023 April 2014 15 9 For an argument from the creation of ‘symbolic value’ to national rights over land and resources, see David Miller, ‘Territorial Rights: Concept and Justification,’ Political Studies 60.2 (2012): 252-68. 10 Chris Armstrong, ‘Justice and Attachment to Natural Resources,’ Journal of Political Philosophy 22.1 (2014): 48-65. Avery Kolers has presented a more demanding account of what follows from what I am calling attachment to resources; see Kolers, ‘Justice, Territory and Natural Resources,’ Political Studies 60.2 (2012): 269-86. I reject his account in Chris Armstrong, ‘Resources, Rights and Global Justice: A Response to Kolers,’ Political Studies 62.1 (2014): 216-22. 11 Might the claim be that they cannot pursue those plans without having exclusive rights to use that capacity themselves? It is hard to see how such a claim could succeed. We might well wonder, if so, how they have been able to pursue their plans up to this point in a world in which sink capacity has been annexed by outsiders on a ‘finders keepers’ basis. 12 For an example of this type of argument as applied to rights over land, see Anna Stilz, ‘Nations, States and Territory,’ Ethics 121.3 (2011): 575-601. Stilz remains neutral on whether the argument gives us reason to endorse control over natural resources too. But for a similar argument with regards to natural resources, see Cara Nine, Global Justice and Territory (Oxford University Press, 2012), chapters 4 and 6. 13 Blomfield, ‘Global Common Resources,’ at 296 (emphasis added). 14 One further argument might be invoked by the defender of self-determination, but it is again doubtful that it pushes us any closer to the conclusion of extra emissions rights. Even if exclusive rights to harness the benefits flowing from the natural resources within a state’s territory proves unnecessary for meeting basic rights, wouldn’t the self-determination of that state be trampled over if other communities were able to enter that state’s territory and consume its resources? Could we really countenance agents of some United Nations Resource Agency dropping out of the sky, entering the territories of states and appropriating resources for use elsewhere? If not, then a state might still have the right to block use of ‘its’ resources by others even if its right to use them for its own exclusive benefit was in question. There are three things to note in response to this apparently dystopian scenario. The first is that it assumes what is at stake in many debates about territorial rights – it leans heavily, that is, on our prior acceptance of rights to control borders and to exercise exclusive jurisdiction over land. Those unpersuaded of the robustness of such rights will be less troubled by the scenario. Second, advocates of global justice might point out that there are many ways of sharing the benefits arising from natural resources – for example, by taxing their extraction or sale – which do not require us to actually expropriate those resources. But third and most important for my argument, the scenario does not apply to the case at hand. The sequestering capacity of terrestrial sinks is already consumed by outsiders, in ways that do not require them to enter the territory of forested states. Indeed outsiders could not be prevented from consuming sink capacity (which is why sink capacity counts as a collective good in the first place). The spectre of territorial incursions adds nothing to the case for extra emissions rights. 15 See e.g. David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), at p. 218. Hillel Steiner’s account also assumes a distinction between improved and unimproved resources, where redistributive claims are to the unimproved value of resources only and agents have a right to retain the value of improvements. Steiner, An Essay on Rights (Oxford: Blackwell, 1994). 16 Blomfield, ‘Global Common Resources,’ at 296-7. 17 We could imagine another instrumental argument which was not conditional on improvement taking place. On this rather Humean view, one reason for according states an interest in the natural resources in their territories is the fact that those states will thereby derive an incentive to conserve those resources, or to use them most efficiently (thereby avoiding a tragedy of the commons). John Rawls briefly suggests such a justification of state ownership of natural resources in The Law of Peoples (Cambridge, Massachusetts: Harvard University Press, 1999). I consider but reject this justification of state ownership in Chris Armstrong, ‘Against Permanent Sovereignty over Natural Resources.’ In short, it suggests giving states an interest in domestic resources, but does not rule out also granting outsiders a stake. CSSJ Working Paper SJ023 April 2014 16 18 Famously, John Locke’s account of justice in acquisition both suggested that agents generate entitlements in the act of appropriating natural resources, and that we should accept a regime of private property rights because such a regime will generate substantially greater benefits than leaving resources in the commons. Locke, Two Treatises of Government, edited by Peter Laslett (Cambridge: Cambridge University Press 1960). 19 See e.g. Richard Arneson, ‘The Principle of Fairness and the Free-Rider Problem,’ Ethics 92.4 (1982): 616-33; Garrett Cullity, ‘Moral Free Riding,’ Philosophy and Public Affairs 24.1 (1995): 3-34. For a sceptical discussion of the principle, particularly as a ground for political obligation, see A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), chapter V. 20 I unpack and defend an argument from the principle of fairness elsewhere, and deal with just these issues. See Chris Armstrong, ‘Fairness, Free-riding and Rainforest Protection,’ ms. 21 Charles Beitz, for instance, argued very briefly that whilst national control over natural resources should be rejected as a general principle, there are reasons for endorsing it in the case of the poorest countries. See Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1979), at p. 142, n. 31. More recently Doris Schroeder and Thomas Pogge have defended state rights over biological resources on a similar basis. Doris Schroeder and Thomas Pogge, ‘Justice and the Convention on Biological Diversity,’ Ethics and International Affairs 23.3 (2009): 267-80. 22 A United Nations initiative, REDD stands for ‘Reducing Emissions from Deforestation and Degradation.’ REDD+ is a consolidated initiative which also includes, inter alia, a focus on enhancing and not just protecting forests. For a discussion, see Peter Kanowski, Constance McDermott, and Benjamin Cashore, ‘Implementing REDD+: lessons from analysis of forest governance,’ Environmental Science & Policy 14.2 (2011): 111-117. 23 In fact, a principle which grants ownership rights over benefits to those who have protected them from threats may produce perverse and unpalatable implications. Consider someone grinding out a match which, if left to burn, would destroy a forest. Does the match-grinder therefore derive rights over all of the benefits which the forest secures? The argument that those who protect benefits ought to have the costs of doing so shared (where benefits are worth their costs, and costs are fairly shared) is a much more modest one, which will avoid such troubling conclusions. See Armstrong, ‘Fairness, Free-riding and Rainforest Protection.’ 24 Of course, it might be the case that we could approach the latter conclusion in practice. If states are to be paid to protect terrestrial sinks within their territories, then under a quota-trading system they could of course use the money gained to buy themselves extra emissions entitlements. It seems to me to be difficult, in advance, to estimate just how much in the way of greater emissions entitlements terrestrial sinks would then end up with. We can affirm that the capacity which might be bought would not exceed that protected (a fact determined by the proviso that the benefits of protection must be worth their costs). But there is no reason to expect them to match the capacity of sinks themselves; they might fall well short of such levels. 25 See e.g. Jacob Phelps, Edward Webb, and Arun Agrawal, ‘Does REDD+ Threaten to Recentralize Forest Governance?’ Science 328.5976 (2010): 312-313; Anne Larson, ‘Forest Tenure Reform in the Age of Climate Change: Lessons for REDD+,’ Global Environmental Change 21.2 (2011): 540-549. 
work_uqyu2kfjyzaxdkegjzocwg27fy	----	ATTACHMENT, AUTONOMY AND 1 Justice, Attachment and Natural Resources 1 Chris Armstrong, University of Southampton Forthcoming in Journal of Political Philosophy, 2013. Introduction This paper investigates the significance, from the point of view of egalitarian justice, of patterns of attachment to natural resources. Section I establishes what is at stake in arguments about attachment as a source of special claims over resources. Section II shows why, by contrast to the view associated with Charles Beitz, for instance, attachment over natural resources should be taken seriously by egalitarians. But even if egalitarians should take attachment seriously, it is not clear just how and whether they could accommodate important attachments whilst also holding firm to their egalitarian commitments. Section III, however, provides an account of just how egalitarians can accommodate good attachment-based claims within their accounts of justice, and also spells out the implications of that accommodation for theories of global justice. Section IV considers but rejects an alternative account of how we should accommodate attachments, and concludes by arguing that egalitarianism contains far greater resources for taking important attachments seriously than we might otherwise suppose. 1 Many thanks to Andrew Mason, Annie Stilz, Kit Wellman and Lea Ypi for comments, as well as the participants in workshops on benefiting from injustice at the University of Uppsala, and on territorial rights at the University of Frankfurt. Work on this paper has been facilitated by a British Academy Mid-career Fellowship on global justice and natural resources. 2 I. Theorising Attachment On the assumption that they are simply ‘there,’ with no-one responsible for creating them, theorists of justice have often suggested that we all have symmetrical general claims on the world’s natural resources, 2 of either a sufficientarian or egalitarian character. 3 But an adequate account of natural resource justice will also recognise and respond to special claims, which come in two varieties. Special claims based on improvement seek to ground certain rights over a natural resource on the way in which an agent has increased its value. Even if no-one has created a particular natural resource, acting on it so as to render it more valuable plausibly grounds a special claim to at least a portion of the income from it. 4 But though it has received much greater attention, it is not only improvement that is capable of generating special claims over natural resources. Indeed the claim that it is only productive use of land or resources which can generate good claims has an ignoble history, inasmuch as it has been used to justify dispossessing indigenous peoples from land or resources which they have inhabited or interacted with, but not used ‘productively.’ 5 Assuming that an account which only considered special claims based on improvement would be an impoverished one, this paper will consider a second kind of special claim, in this case premised upon ‘attachment.’ Attachment- 2 I assume, for the purposes of this paper, the conventional definition of natural resources under international law, which depicts them as non-human-made goods taken from the ‘natural wealth’ of the world. As such they are distinct from man-made products but also from the geographical sites from which they can be taken. Key examples include non-fugacious resources such as unrefined minerals, metals and wild plants, and fugacious (free-flowing) resources such as air, water, wild animals and various kinds of natural energy. Section IV considers an alternative view according to which these things should only count as natural resources when they are used in certain ways. 3 See e.g. Charles Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1979); Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity, 2002); Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012). 4 See e.g. Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994). 5 See e.g. James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), pp. 137-76. 3 based claims seek to ground rights over resources on the close relationship which some agents have formed with specific resources, developing life-plans which depend upon secure access to them. For this project to be worthwhile, we do not need to assume that claims from attachment and improvement will always be entirely separate. It may often be the case in practice that the same agent has both improved, and become attached to, a specific natural resource, thereby generating overlapping special claims over it. But this will not always be the case. A poor miner might work hard to extract coal from a coal-seam – thereby generating a special claim based on improvement – but feel no attachment to that coal, and indeed disdain his career as a miner, and wish to change his job at the earliest opportunity. On the other hand someone might become attached to a resource without improving it. A Hindu might place great store in the expectation that on his death his ashes will be scattered on the Ganges; a Christian might place great store by her ability to baptise her children in the water of the Jordan. Neither will ‘improve’ either river from an economic point of view. If there are cases where improvement-based claims are weak or non-existent but significant attachment to a resource nevertheless exists, we need to know whether separate moral claims can derive from such attachment, and what force those claims might have. If we can identify such claims, it will thereby become more obvious, for instance, why the dispossession of indigenous peoples was, and is, objectionable. If the conventional account which focuses solely on economic improvement – and is often associated with Locke 6 - appears unduly restrictive in its implications for judging resource claims, one prominent alternative – the conventional Kantian account of ‘provisional right’ – appears under-determined. On Kant’s account, we can obtain a provisional claim over an object simply by declaring our will to control it, at 6 It is, in fact, controversial whether Locke actually sought to ground property rights in improvement. For a sceptical discussion, see A. John Simmons, ‘Makers’ Rights,’ in Justification and Legitimacy (Cambridge: Cambridge University Press, 2000). 4 the same time as declaring our willingness to submit that claim to the adjudication of a civil (and, ultimately, cosmopolitan) political authority. That account does not place any further conditions on what constitutes a valid claim over an object. Lea Ypi has recently suggested that the Kantian account can afford to be ‘ecumenical with regard to how groups of people end up occupying specific geographical areas’ – or, perhaps, controlling particular objects; Kantians can accept improvement-based criteria, or attachment-based ones, or indeed any criteria so long as the claims arising under the various accounts share the crucial commitment to binding authority. 7 But Kant’s account is able to be ecumenical precisely because it is so undemanding. The emphasis on the need to generate political authority means that Kant’s account will grant claims just wherever the declared will to control an object exists, along with the willingness to commend that claim to final adjudication by a higher political authority, and independent of any relationship of attachment or improvement. The Kantian account has several significant limitations. First, whilst it might provide us with guidance on how to treat claims generated prior to the establishment of civil authority, it does not provide us with any guidance on how to deal with special claims arising once a civil authority actually exists. Once the civil condition exists, the account simply tells us that property rights are confirmed, but also possibly constrained, by the rightful civil authority – but we lack criteria for how they ought to be constrained. Second, the connection between the need to establish civil authority, on the one hand, and the (highly permissive) criterion supplied for judging valid claims, on the other, is rather underdetermined. If we assume that transition to a civil condition is morally necessary then it is certainly plausible to consider it a necessary condition of valid claims over objects that claimants express a willingness for those 7 Lea Ypi, ‘A Permissive Theory of Territorial Rights,’ European Journal of Philosophy (forthcoming 2013), at 16. 5 claims to be bound by some future civil authority. What is simply not obvious is why we should consider that willingness to be bound by civil authority a sufficient condition (or, to be more precise, a condition which, alongside the will to control an object, is jointly sufficient) for judging a claim to be valid. The focus on the importance of submission to a binding authority does not prevent us from qualifying such claims in additional ways. On this latter score the conventional Kantian account does not seem to provide a satisfying account of when a morally weighty claim has been made. The fact that I merely will to control something, regardless of any other features of my relationship with it, is a very undiscriminating basis on which to grant rights over resources. If I simply declare a wish to control the oil buried under the ground on the island where I live, ought we to place any weight on that claim? At the very least, we will presumably want to place some constraint on how much of my island’s oil I can control. But more importantly, why grant even prima facie claims to control resources with which I have had no relationship at all, other than willing to control them? 8 The best foundation for attachment-based claims on resources is likely to be one which focuses on the conditions for the pursuit of significant individual life-plans. Any plausible account of justice will consider it important that we are able to see ourselves as at least jointly directing our own lives, making our own plans for life which we in turn have some prospect of achieving. On Rawls’s account, that will require justified confidence in our ability to develop our talents and to exercise them, 8 Another interpretation of Kant’s position suggested to me by Annie Stilz would maintain that what is normatively significant is not the mere act of willing control over an object, but the actual achievement of bringing that object under one’s control. But it is not clear to me why the achievement of control in and of itself would make a difference in justifying claims. It strikes me that if control has normative significance, it will lie in the fact that as a consequence of controlling objects we might come to develop expectations of continued access – in short, to begin to orient our life-plans around those objects. 6 so that one’s ends fall within the realm of the reasonably attainable. 9 It will require, in addition, the basic liberties necessary for pursuing our various projects. And it will also have material preconditions: at the very least, we will need secure access to the objects of our basic rights. And an egalitarian account will specify more demanding material prerequisites, constraining tolerable material inequalities in a variety of ways. If we accept that, we have grounds for specifying general claims to various material resources, including natural resources. These will be general in the sense that we all possess such claims simply as human beings, and insofar as we are all capable of generating life-plans that ought to matter. But what of special claims? Special claims over natural resources will be particular in two ways: they will be claims which only some of us possess, because of our precise relationship with natural resources. And they will also be particular in the sense that they apply to specific natural resources. By this we mean not specific kinds, but specific instances or ‘tokens’ of natural resources. An attachment-based justification for special claims over natural resources will emphasise the way in which we sometimes form life-plans which depend upon continued secure access to specific resources. If they are to be successful, attachment-based claims will be claims which cannot be met, at least without irretrievable loss, merely by providing equivalent shares of other resources. Such arguments should also appeal to egalitarians. Take welfare egalitarianism, for instance. A welfare egalitarian will care about resources precisely insofar as they fuel human wellbeing, in their various ways; resources matter, derivatively in that sense, inasmuch as they are important to the success of the various projects that matter to us. But if so, he or she has good reason to pay heed to any information we 9 See e.g. John Rawls, A Theory of Justice (Harvard: Harvard University Press, 1971), p. 440 (on confidence in one’s abilities); Justice as Fairness: a Restatement (Harvard: Belknap, 2001), p. 60 (on the ‘social bases of self-respect’). 7 might have about how particular resources are important to us. At the very least, information about attachments ought to be seen as valuable data for those seeking to promote welfare. More strongly, the presence of attachment to resources produces a defeasible reason for granting the so attached continued access to them. Notably, contemporary Locke scholars have offered support for such a view, arguing for a move away from a focus on either improvement or ‘labour-mixing’ as the only basis for special claims over resources, and suggesting instead (or in addition) that special claims can be granted wherever an individual integrates an object into what Simmons calls her ‘purposive projects.’ 10 Given the centrality that objects can come to play in our life-plans, we have a prima facie reason not to reallocate those objects lightly. Some contemporary Kantians have also given support to this kind of account. In her (ostensibly Kantian) defence of rights of ‘occupancy’ over land, Anna Stilz suggests that there is a good prima facie claim for someone to continue to occupy land wherever that someone has incorporated access to that land into their life-plans, such that occupancy becomes ‘fundamental to the integrity of his structure of personal relationships, goals, and pursuits.’ 11 Individuals may have used land as part of their projects, of what gives their lives meaning and makes it valuable to them. In particular we ought to focus on those life plans which are ‘comprehensive’ rather than ‘peripheral’ – which ‘structure many of our goals and choices, and are fundamental to our sense of ourselves as self-determining authors of our lives.’ 12 10 A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), chapter 5. Note that Simmons considers this focus on purposive projects a development of the labour- mixing view. 11 Anna Stilz, ‘Nations, States and Territory,’ Ethics 121.3 (2009): 572-601, at 585. See also Christopher Heath Wellman, ‘Political Legitimacy and Territorial Rights,’ ms. 12 Stilz, ‘Occupancy Rights and the Wrong of Removal,’ ms. Whilst she does not explicitly invoke the kind of attachment-based account I am defending here, in motivating her defence of a Kantian account of permissive claims Lea Ypi also reaches out to examples whereby a claim ‘promotes a sufficiently important end of agents’ (Ypi, ‘A Permissive Theory,’ at 10), or where people unable to stake such claims have their ability to form and act on life-plans undermined. 8 To date, though, defences of this type of view have focused on control over land. Stilz’s account, for instance, focuses on the wrong of removing peoples from the land they inhabit, but does not apply the argument to natural resources. But the fact that natural resources are in principle removable from land means that we can intelligibly ask questions about whether rights over each should be allocated separately. Many natural resources (such as freshwater, fish, wild animals and possibly even oil) are not tied to a particular piece of land but are rather ‘fugacious.’ Even where resources are not fugacious, grounding claims to them purely in prior claims to land would leave us vulnerable to the challenge that if resource x could be removed without harming the integrity of the land (for instance, by some high-tech horizontal mining technology), any resource claims would then dissipate. To deliver a robust case we ought to investigate claims which are directly grounded in relationships with resources, rather than dependent on prior claims over land. There is, in any case, an increasing recognition that rights over natural resources cannot simply be extrapolated from the territorial right to govern a particular geographical area (or even from putative rights to occupy land). In that case, as David Miller puts it, rather than simply assuming that rights to exercise jurisdiction over territory, resources and membership need to be held together, ‘The relationship between the three sets of rights should be regarded as an open question.’ 13 This paper will investigate whether an attachment-based account can be extended to the case of natural resources, and on finding that it can, will set out some of the implications for the way in which we should integrate general and special claims within a broader account of resource justice. 13 David Miller, ‘Territorial Rights: Concept and Justification,’ Political Studies 60. 2 (2012): 252-68. A. John Simmons similarly observes that the ‘connection between territorial rights [over land] and rights over all resources in the relevant territory is not in any way (morally, physically, conceptually) necessary.’ Simmons, ‘States’ Resource Rights: Locating the Limits,’ online symposium on resource rights: http://territorynetwork.wordpress.com/ , at pp. 5-6. http://territorynetwork.wordpress.com/ 9 II. Attachment, Life-Plans and Natural Resources There are many cases in which individuals have formulated life-plans which are dependent upon secure access to particular natural resources. The most compelling instances are probably those in which members 14 of certain relatively small-scale groups have formed a close and enduring relationship with resources which have become key to central and enduring practices, and where that relationship is both sustainable, and non-substitutable in the way that it supports individual life-plans. Where access to specific resources is integral to one’s way of life and indeed one’s sense of self in this way, it is plausible to say that a fundamental interest in the preservation of one’s way of life generates a prima facie – but defeasible – claim to at least continued access to those resources. The resources in question must be specifically valuable, though, such that they are not straightforwardly substitutable as supports for life-plans. For a good claim to exist over these trees, it should not be the case that other trees would serve the purposes of a given individual without discernable shortfall. It must be the case that in carrying out his life-plans access to anything other than these trees would be, to him, a (possibly very poor) second best. 15 14 As explained later in this section, the argument I am making does not depend upon attributing value to ‘cultures’ or to collective identities; the argument from attachment can be persuasively made, I believe, solely with reference to important individual interests. 15 In an interesting recent paper, Margaret Moore has also argued that we should take seriously the diverse ways in which people value natural resources, beyond treating them as mere substitutable commodities. Moore, ‘Natural Resources, Territorial Right and Global Distributive Justice,’ Political Theory 40.1 92012): 84-107. However, Moore’s main concern is to show that a concern for collective self-determination points in the direction of state or communal control over resources, and hence is rather orthogonal to my project in this paper. I address arguments that seek to ground resource rights in the value of self-determination in Armstrong, ‘Against “Permanent Sovereignty” over Natural Resources,’ ms. 10 Some might still find attachment implausible, by itself, as an independent source of special claims. If no improvement has occurred, why then grant rights over resources? Why should I be able to ground a claim over a resource, simply as a result of developing an expectation that I will be able to access it, and then developing life- plans to match? We need to give serious attention to the suspicion that attachment to a resource is too weak a normative consideration to generate a claim to exercise rights over it. In his well-known discussion of the moral arbitrariness of resource distribution, for instance, Charles Beitz gives grounds for just such suspicion. He suggests that the argument from attachment to resources to rights over them was even more tenuous than the argument from the possession of talents to a right to the economic rewards attendant on such talents which Rawls had earlier done so much to unsettle. Specifically, he suggests that: ‘It would be inappropriate to take the sort of pride in the diamond deposits in one’s back yard that one takes in the ability to play the Appassionata…talents, in some sense, are what the self is; they help constitute personality. The resources under one’s feet, because they lack this natural connection with the self, seem more like contingent than necessary elements in the development of personality.’ 16 The reason that pride in the diamond deposits in one’s back yard is inappropriate, to be clear, is that pride is (something like) a justified satisfaction with one’s character or abilities, given that character and ability are elements of the self which we often deserve credit for cultivating. By contrast natural resources - such as the diamonds in 16 Beitz, Political Theory and International Relations, p. 139. 11 one’s back yard - ‘lack [a] natural connection with the self.’ 17 Or, to put it another way, when the Rector in George Eliot’s Middlemarch asserts that ‘It is a very good quality in a man to have a trout stream,’ we ought to take this as one of Eliot’s many jokes. 18 The connection between personality and the possession of diamonds or trout streams is simply too weak, for Beitz, for concern with the former to justify rights over the latter. If we are at all tempted by the argument that talent is a morally arbitrary basis for distribution, we ought to apply that argument a fortiori to natural resources. But Beitz’s claim repays closer attention. He suggests that, by contrast to the kind of pride it is appropriate to take in playing the Appassionata, it would be inappropriate to take pride in one’s relationship with natural resources - given that one has, by hypothesis, done little or nothing to actively nurture them, and given that they are not, unlike talents, actually ‘constitutive of the self.’ Now that first clause is too quick, for of course a particular resource may well have been developed and improved, even in the autarkic world Beitz supposes in that part of his argument. But the second clause initially appears more secure. It does look to be a distinctive feature of talents that they are internal to the self, or constitutive of the self as Beitz puts it. However, consider again the Appassionata example. Imagine that Sophie has invested her whole being in playing that piece, and that now she can do it she thinks about herself in a different way – she appraises herself more positively as a person capable of cultivating her abilities and sensibilities, and she has a real sense of living within a musical tradition. Now that talent is always going to be vulnerable in certain ways (which is another way of saying that it has preconditions which are capable of being threatened). Sophie might injure her hands, and be unable to play any longer. 17 Ibid., p. 138. 18 George Eliot, Middlemarch (London: Penguin 1994 [1874]), p. 70. 12 Likewise if Sophie’s piano was taken from her – or if she was forbidden from playing any piano – she would be unable to exercise her talent. Whilst not directly deprived of her talent, she would be deprived of a crucial object for its exercise, and we would also expect her talent itself to suffer in time. If so, the loss to her sense of self, and her sense that she had skilfully brought her life-plans closer to fruition, could be just as acute as if she had injured her hands. Her control over her talent and her control over her piano – or, failing that, a substitute piano – are both crucial to her continuing to experience her sense of agency, and to the fulfilment of a project which is central to her life. Although there are some talents which do not obviously depend on control over external objects for their expression (like dancing, or singing, for example), there are many talents which are dependent for their exercise on secure access to objects such as musical instruments, sports equipment, vehicles, and so on. But if control over a piano – an external artefact, which she has done nothing to create or improve – is crucial to Sophie’s pursuit of her life-plans and even to her sense of self, then we have a reason to ensure she can continue to access it. And we can say the same thing, in many cases, about natural resources. Imagine that Ken, a fisherman, has oriented his life around fishing – developing his talents, his ability to work out where the fish are, what they want to eat at any given time, and so on. Here it seems that Ken’s sense of pride in the performance of fishing is no more misplaced than Sophie’s pride in her ability to play the Appassionata. But again Ken’s pursuit of his life-plan is vulnerable: we could remove his rod, of course (his equivalent of the piano), or we could take the fish from the river he fishes, or ban him from fishing it (or indeed from any river). If we did so, we would be directly interfering with Ken’s central life-plan. Indeed our removal of an object necessary to someone’s performance of his life-plans without a very compelling reason for doing will likely 13 be construed (often correctly) as evidence that we do not consider those life-plans valuable, and may even be interpreted as a sign of deep disrespect. Assuming that Ken’s life-plan is valuable to him, we have a strong reason not to do so. Are real-world cases available whereby individual identity is bound up in individuals’ right to securely interact with a specific resource, so that removing that right from them would present those individuals with a situation where they did not even believe themselves to be the same people any more? A good example might be the Saami people of Scandinavia: roughly sixty thousand members of an indigenous community which has sustained itself for more than a thousand years by herding reindeer. 19 The task of feeding and herding reindeer dictates the movements of Siidas – small groups composed of several families – across the seasons. It provides an economic foundation, but more than that it provides a shared life-plan, deeply wrapped up in a specific mode of existence in relation to the physical environment. What we have in this case is a situation where there is an intimate and profound connection between an individual’s identity and her ability to securely interact with a specific natural resource. Whilst all of us will have life-plans dependent on the availability of some natural resources (including, at the very least, the objects of our basic rights, such as clean air and drinking-water), some of our life-plans demand secure access to specific natural resources. We don’t understand ourselves as fishermen or as hunters if there are no fish to fish, or no prey to hunt. And we may not understand ourselves as Sioux or Tlingit fishermen or hunters unless certain particular fish or prey are available to us. To think that this represents a loss, from the point of view of justice, we do not need to think that cultures are in themselves valuable, or that their ‘essential characters’ ought to be preserved. The present account makes no 19 There is ongoing controversy – quite distinct from the question of whether animals can have rights - about whether humans can have rights over wild animals. If not, we can imagine examples where the attachment is to rocks or rivers instead. 14 such claim. We merely need to take seriously the claim that it matters to individuals that they are able to act on plans which are central to their lives, and that in order to act on such plans secure access to certain resources may be required. As a matter of legal reality, the various governments of the Scandinavian countries have recognised this in their individual enactments of Saami-specific rights over reindeer herds. 20 These do not typically extend to land ownership, but rather to rights to continue to herd reindeer. Similar accommodations have been made in Canada. 21 Although international law protecting indigenous rights is weak in many respects, it does clearly purport to defend access to resources where those resources are important to specific ways of life. Elaborating on the ‘right to culture’ – potentially, for the sake of our argument, a misleading term - defended in Article 27 of the Covenant of Civil and Political Rights, for instance, General Comment 23 suggests that: (c)ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. [Thus cultural] right might include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of these rights may require positive measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. 22 The reference to ‘culture’ here ought not to mislead us into believing that what is at stake are rights to use natural resources for exclusively ‘cultural’ or ‘symbolic’ 20 For some useful discussions of the recent history of these rights, see chapters 5, 12 and 14 of Svein Jentoft, Henry Minde and Ragnar Nilsen (eds) Indigenous Peoples: Resource Management and Global Rights (Delft: Eburon Academic, 2003). 21 S. James Anaya and Robert Williams, ‘The Protection of Indigenous Peoples’ Rights over Land and Natural Resources in the Inter-American Human Rights System,’ Harvard Human Rights Journal 14 (2001): 33-86, at 51. 22 Office of the High Commissioner for Human Rights, General Comment 23 (1994): The rights of minorities (Art. 27). See: http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument 15 purposes. Rather the Covenant has been used to protect uses of a resource – whether ‘economic’ or ‘cultural’ or otherwise – which are essential to the way of life of a particular party. 23 The connection between specific resources and our life-plans and even identities does not always appear to be as tenuous as Beitz suggests, then. In many cases Beitz may be right that the connection between (individual or national) personality and the mineral deposits buried beneath one’s feet may be weak. Some natural resources will not even have been discovered, and others will be largely untouched, and will not feature in our projects to any significant degree. He may also be right that at the level of nation-states the connection will typically be weak. 24 But we should not rule out just any attachment-based claims. It does appear possible to identify particular natural resources which are hugely significant to particular people’s sense of agency, and to their ability to carry out projects to which they are deeply wedded. III. Responding to Claims from Attachment Attachment-based claims will be ill met by conventional means of undifferentiated redistribution – such as a principle of equal shares of total natural resource values - since what they typically demand in the real world are rights over specific resources. 25 What is at stake is the right to insist that these trees should not be cut down, or that 23 Anaya and Williams, ‘The Protection of Indigenous Peoples’ Rights,’ 52. 24 For a fuller defence of that claim, see Chris Armstrong, ‘Against “Permanent Sovereignty.”’ 25 Simmons claims that denying this ‘means denying the actual arguments made by Native American tribes for historical rights to particular lands and resources have any moral force at all, or any appeal beyond ungrounded emotionalism.’ Typically these claims are claims to the actual lands the Native Americans ‘lived, hunted, and worked on.’ Simmons, ‘Historical Rights and Fair Shares,’ in Justification and Legitimacy, at p. 241. 16 this agent should continue to be able to herd these reindeer. But on the other hand, attachment-based claims cannot be unconstrained by broader considerations of distributive justice: they surely cannot, for instance, ground unlimited rights over unlimited portions of natural resources. Just how stark a challenge, then, do they pose for conventional theories of natural resource justice? To make any progress in answering that question, we need to be clear about the precise content of attachment-based special claims. Specifically, we need to be clear about which rights over natural resources are being claimed, and whether those rights are necessarily exclusive – a move that is, regrettably, not often clearly made. As I suggest elsewhere, 26 there are a number of rights which an agent might enjoy over a given natural resource, including (at least) the right to access and non- subtractively use a resource, to withdraw and consume resource units, to manage a resource, to exclude others from its use, to alienate it, or to derive income from it. 27 Special claims over natural resources will be more demanding – and will appear less plausible, at least to some - if we assume that the only intelligible special claim is a claim to ‘full liberal ownership’ of a resource, comprising all six rights. 28 But this is certainly not the only intelligible claim, and indeed it probably does not reflect the spirit of most indigenous claims, for instance. If what matters is the ability to securely interact with a particular resource, ‘full liberal ownership’ is far from the only answer. If my life-plans centrally include an ability to walk in the woods near my home, that does not require that I own the woods, or that I am able to prevent others from walking in the woods, or that I can derive any or all of the income 26 Armstrong, ‘Against “Permanent Sovereignty.”’ 27 The list is adapted from Elinor Ostrom, ‘Private and Common Property Rights,’ in B. Bouckaert and G. De Geest (eds) Encyclopedia of Law and Economics, vol. II. Civil Law and Economics (Cheltenham: Edward Elgar, 2000), pp. 332-79, at p. 339, with the exception of the right to derive income which is my own addition. 28 On full liberal ownership, see Tony Honoré, ‘Ownership (1961),’ in his Making Law Bind (Oxford: Clarendon Press, 1987), pp. 161-192. 17 from the woods. It demands precisely that I can walk in the woods without disruption (it may also be dependent upon the woods being sustainably managed, whether by me or someone else). Likewise, my ability to live in a rainforest unmolested is compatible with granting outsiders the right to emit greenhouse gases, and hence sharing that rainforest’s absorptive capacity. Continued and unmolested access, in many such cases, is what is at stake in attachment-based claims. Such claims can therefore be granted without affecting anyone else’s claim to share the income or ecosystem benefits arising from the resources in question. In the case of the Saami the secure pursuit of central life-plans will require rights beyond mere access. Here the demand seems to be to rights of access (including, notably, a right to traverse Scandinavian national borders which is as old as those borders themselves 29 ), but also a share in management, some (limited and sustainable) rights of withdrawal, and the right to derive some income from selling meat, jewellery and clothing produced from reindeer. But the demand is not to ownership of reindeer, and even insofar as it extends it is not necessarily a claim to exclusive rights. Management rights over reindeer herds can plausibly be shared, access to the reindeer need not be exclusive so long as access by outsiders does not disrupt herding practices significantly, and so on. The income derived from selling meat, jewellery and clothing likewise offers a rather basic standard of living to the Saami herders, and is unlikely to trouble those with egalitarian or even sufficientarian sentiments. 30 Overall, the 29 Fae Korsmo, ‘Nordic Security and the Saami Minority: Territorial Rights in Northern Fennoscandia,’ Human Rights Quarterly 10 (1988): 509-24. 30 I suspect, in fact, that the attachment-based argument for a right to derive income is less secure than the argument for, for instance, rights to access or manage resources. Specifically, I agree with Simon Green that if the ability to securely pursue one’s own life-plans is what is at stake, then a right to the ‘deployment of one’s talents’ as an artist (to use Green’s example) is not obviously intimately tied to, and does not obviously demand, the right to also sell one’s paintings on an open market. Green, ‘Competitive Equality of Opportunity: A Defense,’ Ethics 100 (1989): 5-32, at 18. Thus it might be that a Saami herder could enjoy her life as a herder without being able to sell reindeer goods, so long as she otherwise had the income to get by. That said, we might have other grounds for granting those 18 cluster of rights claimed appears here to pose no especial obstacle to those who would seek to distribute the benefits of the world’s resources equally. More pointedly, those who support welfarist (or partially welfarist) varieties of egalitarianism ought to treat our knowledge of the depth of attachment to reindeer or to walks in the woods as a valuable source of information about how equality can be achieved. In short, unpacking the precise content of the rights claims implicit in many special claims from attachment immediately renders the question of how they can be accommodated much more tractable, and reveals the potential compatibility of many special claims with protecting access for others, enjoying the benefits of shared management, using some share of income in the broader interests of justice, and so forth. We ought not, though, to imagine this move as a panacea. Special claims from attachment could conceivably be much more expansive than in the Saami or woods- walking cases. How should we think about the appropriate limits to special claims, then? One obvious constraint, it seems to me, is supplied by the injunction that no-one ought to be deprived, or deprive others, of natural resources (such as freshwater, or air) which are essential for meeting their basic human rights. Indeed, along with earlier thinkers such as Aquinas, Pufendorf, Hobbes and Locke, I find it hard to see how any right can be more fundamental and inalienable than the right to access those natural resources necessary to one’s survival. 31 That right may have important implications for broader discussions of control over resources, including, potentially, debates about international migration, but our goal is not to address those implications but merely to note the constraint it places on attachment-based special claims. If one party’s rights (such as improvement-based claims, or a belief that it would be more efficient, or infringe her liberty less if we allowed her to earn her own income rather than depending on handouts from others). 31 See also Risse, On Global Justice, chapters 5 and 6. 19 attachment-based claim to control a river has the inevitable consequence that others will imminently face dehydration, for instance, then it ought to be rejected. It might be objected here, of course, that we should understand the right to control or to securely access particular resource tokens as itself a basic human right. I do not believe that we should. It is plausible to suggest that as humans we all have an entitlement to the objects of our basic right to subsistence, for instance, and in some cases this will imply a (general) right to specific kinds of natural resources (such as freshwater, clean air, and sunlight). But it is not clear that the same can be said for specific instances or tokens of natural resources. No-one, I suspect, has a basic human right to continued access to or control over this tree, or that river. There may, to be sure, be good pragmatic reasons for allowing people to meet their basic rights by way of the specific resource tokens they already control and are attached to; if we believe that attachment is important in the way in which I am suggesting then there may be good principled reasons for preferring them to. But this does not take us very far, and in any case those reasons have to be seen as defeasible when the basic rights of others are at stake. Aside from a basic rights constraint, does egalitarianism place further constraints on the extent to which we should grant special claims from attachment? I believe that it does, but not in the way which is usually suggested. A very common view on the demands of equality with regards to natural resources suggests, roughly speaking, that the distribution of such resources is morally arbitrary, that it wrongly advantages and disadvantages people according to accidents of birth, and that we should all have, in fact, an equal entitlement to share in the benefits and burdens arising from the world’s natural resources. That view itself is often linked with an egalitarian constraint on appropriation which suggests that we ought to cease 20 appropriating resources once our shares reaches the maximum level which could be symmetrically held by everyone else. I have argued elsewhere that global egalitarians ought to reject such a view. 32 To see why we need to take a brief detour into the thorny question of the correct currency for equality. It may be that no single metric can be provided for egalitarianism or, to put it another way, that insofar as we care about advantage and disadvantage we are stuck with a conception of advantage which is irreducibly heterogeneous, incorporating a concern with the distribution of both resources and welfare. 33 Anyone persuaded of that point would immediately wonder why we ought to single out natural resources and hold that shares of the benefits and burdens arising from this good ought to be equal. But scepticism about insisting on equal shares of natural resources (or the benefits and burdens arising from them) does not depend upon prior scepticism about a single neat answer to the currency question. In fact, advocates of each of the three major currencies – equality of welfare, equality of capabilities, and equality of resources broadly construed – also ought to reject strictly equal shares of benefits. Why, for instance, insist on equal shares of benefits when those benefits drive welfare in unequal ways across persons? The welfarist should instead prefer a distribution in which unequal shares of resource benefits are granted, such that those unequal shares sustain equal welfare. 34 A similar conclusion will follow for the capability theorist: part of the reason for embracing the capability metric, after all, is that resources fuel capabilities in different ways, and that the 32 Chris Armstrong, ‘Natural Resources: the Demands of Equality,’ ms. 33 See G. A. Cohen, ‘Afterword to Chapters 1 and 2,’ in Michael Otsuka (ed) G. A. Cohen: On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy (Princeton: Princeton University Press, 2011), pp. 61-72. 34 Michael Otsuka, ‘Self-Ownership and Equality: A Lockean Reconciliation,’ Philosophy & Public Affairs, 27 (1998): 65-92. 21 insistence on equal shares of resources (of whatever variety) is mistaken. 35 The resourcist, too, ought to be unsatisfied with a situation in which natural resources were equalized in isolation, and without regard to the impact of ‘internal resources’ or endowments – or, indeed, other social goods which ought to matter to the egalitarian, such as income, inherited wealth, healthcare or education. 36 So in the face of, inter alia, widespread and multifaceted inequalities in important social goods or simply in the face of unequal capacities to convert natural resources into, say, welfare or capabilities, equal shares of natural resource values becomes unattractive. This means, in turn, that what we could call a ‘narrow egalitarian proviso’ on natural resource appropriation also becomes unattractive. When we ask the question what quantity of natural resources (or benefits and burdens) individuals ought to be allowed to appropriate, we ought to recognise the utility of allowing agents to appropriate greater than equal shares of natural resource benefits insofar as this usefully offsets inequalities in other areas (including, but not necessarily limited to, cases of unequal capacity to convert resources into whatever broader category of advantage we care about). Distributing to each of us an equal portion of the benefits arising from the world’s natural resources in contexts of background inequality would be arbitrary in principle, and regressive in effect. The limits to appropriation ought not to be set by an unnecessary insistence on equal shares of these goods, but by equality across the range of goods relevant to distributive justice. Call this, if you will, a ‘broad egalitarian proviso.’ As with the recognition of the diverse set of rights which attachment claims might in practice target, this theoretical moves also establishes that egalitarians are 35 Amartya Sen, ‘Equality of what?’ Tanner lectures on human values 1 (1980): 195-220. 36 Ronald Dworkin, ‘What is Equality? Part 2: Equality of resources,’ Philosophy & Public Affairs (1981): 283-345. 22 able to be more accommodating towards attachment-based special claims than we might otherwise suppose. In cases where an agent has structured his or her life around secure access to particular resources equality can permit allowing him or her to control a greater than equal share of resources (or resource benefits), or indeed to block the use of a greater than equal share of resources where her central life-plans would be disrupted by their use (see below). 37 This again renders the case of indigenous claims to justice more tractable. Such claims often target secure access to large swathes of resources, but they are also, typically, accompanied by substantial inequalities in other spheres – by the general poverty and exclusion of indigenous peoples, for instance. There are limits to the degree to which we should be ‘integrationist’ about all of the goods relevant to egalitarian justice, 38 and if we have a commitment to equal citizenship then we ought not to be wholly content with a situation in which large shares of natural resources ‘compensated’ for political exclusion. But if indigenous peoples do indeed turn out to have a strong preference for greater than equal resource shares at the expense of, say, income, granting such attachment-based claims is compatible with equality. *** I have suggested so far in this section that quite substantial attachment-based claims to natural resources are compatible with egalitarian justice, and that egalitarians often have good reason to favour such claims as a means of pursuing equality. But this is 37 As Jeremy Waldron suggests in another context, any such claims cannot of course be granted once- and-for-all and without being subject to future revision; we will want to say that what counts as a just holding has to be seen as revisable, subject to for instance changes in population, in scarcity of resources, and so on. Waldron, ‘Superseding Historic Injustice,’ Ethics 103 (1992): 4-18, at 16. 38 For an excellent account of the basis of, and limits to, integrationism about egalitarian justice, see Simon Caney, ‘Just Emissions,’ Philosophy and Public Affairs 40.4 (2012): 255-300. 23 not to suggest, of course, that attachment-based claims will never conflict with equality. Indeed if that were the case my argument would be uninteresting. It is because conflicts can occur that we need to know exactly how far egalitarians can go in accommodating such claims. I have suggested that they can go much further than we might at first suspect, if they are prepared to carefully unpick the precise rights targeted by special claims rather than assuming that ‘ownership’ is the only option on the table, and if they are prepared to apply a broad rather than narrow egalitarian proviso to such claims. But there will still be cases which ask more than egalitarians can, in their capacity as egalitarians, accede to. Even if special claims from attachment do not directly target control over an expansive set of resources, the costs of meeting them could still potentially be very high. In many contentious cases in the real world a claim to exercise control over resource x is contentious not because x describes a large or valuable set of resources, but because control over resource x proves to be incompatible with exploitation of resource y by others. In legal practice, many indigenous land and resource claims appear to take precisely this form, being in essence defensive or ‘blocking’ claims against logging and oil-extraction activities, for instance, where those activities would seriously disrupt indigenous practices. 39 What is claimed, in such cases, is that secure access to these trees is incompatible with clearing the forests for agricultural use, or that the enjoyment of traditional fishing practices in these waters is incompatible with exploiting the oil shales of such a stretch of the coastline for petrochemical production. Whilst the claim to those trees or those fish is not in itself especially expansive – and, as such, not directly worrying to egalitarians – the opportunity costs of respecting such claims is high, because 39 Anaya and Williams, ‘The Protection of Indigenous Peoples’ Rights,’ passim. 24 respecting them will place a block on local economic development (development which might itself advance wider goals of social justice). We can imagine, then, a case where there is a definite global interest in the development of the resources contained in a region, 40 but where agent A would prefer such development not to take place because they are attached to a particular resource which would be destroyed if development occurred. Such blocking claims, I would suggest, should be treated in the same way as direct claims, and as such should also be subject to a broad egalitarian proviso. This has the implication that development of a set of natural resources can be blocked by indigenous communities where the benefits and burdens associated with those resources are not so great that no plausible direct claim could be granted over them; as I suggested above, in a context of countervailing disadvantage indigenous communities may be able to make quite large blocking claims. But it is hard to see on what grounds egalitarians could endorse blocking claims which violated even a broad egalitarian proviso. If the block on development has the result that outsiders inevitably become or remain worse off – across the whole range of goods relevant to distributive justice – than agent A, granting such claims would demand, in effect, that we treat the projects of agent A as more important than the projects of outsiders. Even if reasons can be produced for accepting such a result – whether reasons of justice or reason beyond justice – it is hard to see how egalitarians, as egalitarians, could endorse them. 40 This will not be true in many important cases, including the rainforest case briefly mentioned earlier. In such cases there may be a national interest in ‘developing’ the forests, but global interests are actually aligned in favour of preservation. Where this is the case, there may be an argument for outsiders sharing the opportunity costs of preservation with locals. See Chris Armstrong, ‘Sharing the Costs of Rainforest Protection,’ ms. 25 IV. Resources, Attachment and Justice This paper has suggested that if egalitarians care about people and their diverse interests, then a diverse range of egalitarian accounts also have reason to care about the way in which people form projects which often crucially rely on secure access to specific external objects such as natural resources. Although existing accounts of territorial rights over land do not automatically extend to ground rights over natural resources, the present enterprise shares much with the efforts of recent territorial rights theorists to take seriously the desire of many people to maintain access or ‘occupancy’ over particular sites – or resources - which have come to matter deeply to them and to their central life-projects. Far from helping ourselves to the conclusion that the actual distribution of natural resources is entirely arbitrary, and that there is accordingly nothing at all to be said, from a moral point of view, for current patterns of attachment to resources, we ought to care when such attachments persist and seek, within the proper constraints of an egalitarian account, to accommodate them. But although I have shown that egalitarians both can and should make much more room for attachment-based special claims than has often been recognised, it might be thought that my account still leaves some agents’ access to precious resources too vulnerable to the general claims of outsiders. Perhaps where attachment exists we should say something still stronger, to the effect that the resources to which an agent is attached should not actually be considered natural resources from the point of view of justice, and hence ought to be entirely immune from programs of global redistribution. In that way justice – egalitarian or otherwise – would cease to constrain attachment-based special claims at all. 26 Avery Kolers has recently defended such a view, 41 but I have suggested elsewhere that it is deeply mistaken. 42 On his account once we recognise the right kind of relationship between a community and a resource, questions about outsiders’ claims on that resource simply do not arise – no matter how strong the countervailing interests of outsiders happen to be. When we recognise these crucial relationships what we are doing, in effect, is accepting that communities invested in particular resources are entitled to say that they are not natural resources. But how do we determine when the requisite relationship exists? We should cease to consider something as a natural resource, from the point of view of justice, whenever the local community does not treat it as a mere substitutable goods to be traded as a commodity. 43 Whenever a good is not considered (by the community controlling it) to be non-substitutable either across types or across tokens – that is, when it cannot be substituted, without loss, with another resource of the same type, or indeed with a resource of a different type – external claims simply become irrelevant. Interestingly, special claims here do not gain force from the intensive use of resources (as, perhaps, in the case of improvement-based special claims), but from their non-intensive use. Where a resource is being used non-intensively – and not treated simply as an economic asset to be sold on open markets – this is likely to indicate a depth of attachment which overrides merely economic uses. 44 But non-intensive use looks likely to be a poor proxy for the existence of morally significant relationships between people and resources (it might, after all, 41 Avery Kolers, ‘Justice, Territory and Natural Resources,’ Political Studies 60.2 (2012): 269-86. 42 Chris Armstrong, ‘Resources, Rights and Global Justice: A Response to Kolers,’ Political Studies, forthcoming 2013. 43 Kolers, ‘Justice, Territory,’ at 279. 44 Margaret Moore also argues that ‘the capacity to “count” something as a resource is important to collective self-determination.’ ‘Natural Resources, Territorial Right,’ at 88. However, later in her paper she apparently repudiates the argument that local communities should get to decide whether something counts as a resource or not (at 103-4, n. 9). 27 simply mean that a given agent is utterly uninterested in a resource, or that they have such a great quantity of natural resources that they could not possibly use them all). It is also unclear how the fact that a given agent considers a natural resource not to be substitutable across types suffices to ground a claim to particular tokens of a resource (the fact that I have a project dependent on access to water in general does not suffice, surely, to justify a claim over the precise water I currently control, and certainly not all of it). But most significantly, Kolers’s account simply draws the wrong type of conclusion from the existence of attachment over some natural resources. It dictates that where there is a good claim based on non-intensive use, any broader questions about how to share access to a particular resource are simply voided. That resource (now a non-resource) becomes, in Kolers’s words, ‘immune to resource justice considerations.’ 45 But this is wholly implausible, especially in the face of possibly urgent claims from outsiders whose basic rights might be under threat. A more plausible account would seek to balance the different claims over resources, and endorse special claims only where there is a sufficiently weighty interest in retaining control over particular goods – which does not infringe on the basic rights of others - and not simply where we identify the mere existence of a certain kind of claim which immediately trumps other claims. Deciding on such cases is not easy, but I have suggested that we will find the task easier if we are prepared to explore more complex ways of sharing rights over resources, and if we are prepared to endorse a broad rather than narrow egalitarian constraint on any such claims. Indeed I hope to have shown that it is possible to take attachment-based special claims over natural resources seriously without simply disregarding the claims of outsiders. Recognising a resource’s usefulness to others is compatible with 45 Kolers, ‘Justice, Territory,’ at 282. 28 recognising – and, when appropriate, defending – its special significance to some people in particular. If so, we can provide reasons of justice to take attachment seriously, rather than immediately seeking to place attachment-based claims beyond justice. If we are prepared to advance reasons why we should take attachment seriously from the point of view of justice then, it seems to me, we can also enhance our understanding of just why colonialism and the forced dispossession of indigenous peoples was so wrong. 
work_urllctivijfobdgahah2xhcnfa	----	Political Justice: Levinas Contra Aristotle religions Article Political Justice: Levinas Contra Aristotle Nathan Bell School of Political and Social Inquiry, Monash University, Clayton, VIC 3800, Australia; nathan.bell@monash.edu Received: 20 January 2019; Accepted: 18 February 2019; Published: 21 February 2019 ���������� ������� Abstract: In this paper, I argue that two radically different conceptions of political justice can be derived from the work of Aristotle and Emmanuel Levinas—notions of justice that are indeed directly opposed. Aristotle defines justice in terms of considerations of moderation, prudence, and measure, where the virtuous actor is supposed to demonstrate aspects of character and perform acts that are neither deficient nor excessive; yet the ethics of Levinas, as instantiated in justice, is a demand that responding to the needs of others not be limited by moderate considerations, but can precisely be realized as an exorbitant and anarchic assumption of responsibility. It thus becomes of decisive importance for both a thinking of the political, and political praxis, in determining which conception of justice is found to be more compelling. I illustrate the stakes of this difference with reference to the politics of asylum, and in particular, a discussion of the historical case of the Kindertransport. Keywords: Emmanuel Levinas; Aristotle; justice; politics; refugees; Kindertransport 1. Introduction: Proper Names For the value of a thought is measured by its distance from the continuity of the familiar.1 —Theodor Adorno, Minima Moralia To recall a ‘proper name’, for Emmanuel Levinas, was the evocation of an encounter with a singular Other, an individual whose philosophical saying marks out a particular territory of meaning within philosophy. Not just those who define a meaning or set of meanings, however, but who also provide an ability to ‘resist the dissolution of meaning and help us to speak’.2 The names that Levinas lists in his book of that title—Proper Names (Noms propres)—are for the most part his intellectual3 contemporaries of the Twentieth Century (with some exceptions, such as Kierkegaard). This selection is made for good reason: on the first page of the Foreword to the book, Levinas, providing a catalogue of Twentieth Century horrors, remarks that ‘at no other time has historical experience weighed so heavily upon ideas.’4 Thus Levinas rallies to his side those thinkers in whom he recognizes ‘A non-indifference of one toward the other!’5, who work to ensure that ethical meaning can be preserved against moral horror, and who recognize the seeming failure of an entire Occidental philosophical and cultural tradition to prevent those horrors. These names—among them Jacques Derrida, Paul Celan, Jean Wahl, and Martin Buber—are largely thinkers with whom Levinas had positive affinities, and whose work he was to some extent prepared to affirm or counter-sign, even while marking out important areas of difference and disagreement. 1 (Adorno 2005, p. 80). 2 (Levinas 1996, p. 4). 3 As opposed to simply philosophical contemporaries—he includes poets and theologians, individuals who are not all sensu stricto philosophers. 4 Proper Names, p. 3. 5 Proper Names, p. 6. Religions 2019, 10, 126; doi:10.3390/rel10020126 www.mdpi.com/journal/religions http://www.mdpi.com/journal/religions http://www.mdpi.com https://orcid.org/0000-0002-9569-8311 http://www.mdpi.com/2077-1444/10/2/126?type=check_update&version=1 http://dx.doi.org/10.3390/rel10020126 http://www.mdpi.com/journal/religions Religions 2019, 10, 126 2 of 18 There is, however, another list of proper names associated with Levinas that could be collated, in a more agonistic vein. Indeed, for a philosopher so profoundly associated with kind-sounding words like ‘peace’ and ‘ethics’, it is remarkable to consider that Levinas has quite the ‘rogues gallery’ of villains, like a superhero—that is, other philosophers with whom he had serious disagreements (or like having a ‘beef in rap music, to mix metaphors). His thoughtful polemic against Heidegger—arguably characteristic of almost the entirety of Levinas’s œuvre—is well-known; given that Levinas is a thinker concerned with disrupting ‘totality’ (in this effort, heavily influenced by Franz Rosenzweig), Hegel can be seen as an implicit foe;6 his ethics, in not privileging reason, is certainly a disputation of Kant;7 minor disagreements with contemporaries like Martin Buber and Jacques Derrida occurred during his life;8 as a thinker who affirmed, in his own unique register, the highly contested concept of ‘humanism’, one could add other figures who critiqued or rejected humanism, such as Louis Althusser and Michel Foucault, to this list9; and it would be possible for his readers to stage themselves a spectral, posthumous encounter between Levinas and interlocutors such as Alain Badiou and Slavoj Žižek, who often criticise Levinas in order to better establish some of their own claims.10 Each of these proper names represent the staging ground, the mise-en-scène, of a profound philosophical issue which was of concern to Levinas. Yet in this paper I want to isolate one name in particular, which is one of the defining proper names of Western philosophy: Aristotle. It goes without saying that Aristotle ranks among the most influential philosophers of all history, with Plato and Socrates. Criticizing Aristotle is an extremely difficult, and one might suggest hubristic, task, given the enormity of this figure within philosophy and the practically unassimilable scope of the total critical literature—Derrida’s remark that apropos of Levinas’s large body of work, one can ‘no longer glimpse its edges’,11 applies exponentially to the legacy of Aristotle. And yet, such a critique may be necessary, indeed unavoidable, from the perspective of taking Levinas’s texts seriously. Levinas himself did not make Aristotle an explicit, extended focus of critique—though if one consults the index of most of Levinas’s’ books, references to Aristotle are to be found in most of them, and usually couched in a critical vein (I will examine some of his remarks on Aristotle below). My argument is simple: Levinas and Aristotle are radically opposed over the question of the meaning of justice. However, while this difference between them may be simple, some difficulties are faced in establishing this claim; furthermore, the consequences for a philosophical conception of political justice, and how that might be understood in matters of praxis, are profound. At stake is the difference between the moderate and the excessive, where a thinking of the unconditioned or infinite comes to interrupt the conditional. Pragmatic approaches to the political have no ground of judgment for the actualization of the good life, understood as justice, because they have no external criteria of judgment outside the calculable. Aristotle recognized this problem but, I will argue, does not have a sufficiently robust answer to it. Conversely, in the ethics of Levinas, there is a recognition of an anarchic, infinite responsibility—‘an inexhaustible responsibility: for with the other our accounts are never settled.’12 William Simmons illustrates the meaning of this effectively with reference to the scene towards the end of Schindler’s List, where Oskar Schindler (played by Liam Neeson), despite having saved so many people, nevertheless reproaches himself for not having done 6 There is no systematic critique of Hegel in Levinas, but there are references to Hegel throughout his texts; probably the closest to a systematic treatment occurs in the ‘Death and Time’ lectures collected in (Levinas 2000). 7 For a detailed comparison of Kant and Levinas, see (Chalier 2002). 8 Proper Names includes essays devoted to both thinkers. For Levina’s response to Derrida, at once affirmative and critical, see (Levinas 1991, pp. 3–10). 9 For an example of Levinas’s’ embrace of humanism, including the very title of his book, see (Levinas 2006). 10 See Žižek’s essay in (Žižek et al. 2013); Badiou discusses what he sees as the limitations of Levinas’s ethics in (Badiou 2012), especially in Chapter Two. 11 See Derrida’s funeral address for Levinas, ‘Adieu’, in (Derrida 1999, p. 3). 12 (Levinas 1993, p. 149). Religions 2019, 10, 126 3 of 18 more.13 Such are also the stakes in the present argument; the horrors of the Shoah, which preoccupied Levinas and inform, I would argue, the entirety of his post-war work, will provide the historical context and a case study intended to illustrate the implications of what follows. The theoretical task is difficult, in part due to the following considerations. Firstly, there is the problem of the nunc pro tunc fallacy, of ‘presentism’—the imposition of current opinions or judgments upon the past. To criticize Aristotle for his well-known justification of slavery by seeing it as an anti-humanist stance seems terribly redundant; similarly, the applicability of his conception of the political, generated from the exigencies of the life-world of the Athenian polis, may also seem highly circumscribed. As Alasdair MacIntyre observed in After Virtue, ‘Aristotle takes himself not to be inventing an account of the virtues, but to be articulating an account that is implicit in the thought, utterance and action of an educated Athenian . . . for he holds that the city-state is the unique political form in which alone the virtues of human life can be genuinely and fully exhibited.’14 Thus, to the extent that Aristotle’s views on justice are shaped by a specific historico-political context, comparisons between these thinkers may seem ostensibly difficult to draw. Secondly, the potential field of comparison is very large—one could engage their relative thinking on epistemology; on metaphysics; and on ethics, justice, and politics, and do so situated in a wider philosophical context where other proper names would become pertinent (for example, the extent to which Heidegger can be seen as an Aristotlean, and how Levinas’s critique of Heidegger thus is in some way an implicit critique of the latter).15 Such a treatment would be beyond the scope of one paper. And yet despite these difficulties, I am convinced that such a comparison is necessary. In thinking of moderation as it relates to politics, an important question arises as to the legacy of Aristotle: to what extent do his writings and the influence of the philosophemes that fall under his proper name—such as conceiving of justice as moderation, which will be a key focus of my critique—continue to hold widespread currency in the contemporary world? Adorno comments on this wryly in Minima Moralia when he writes of the enduring influence of ‘the doctrine inculcated since Aristotle that moderation is the virtue appropriate to reasonable people’.16 It is this concern about Aristotle’s version of justice, and its possible effects, that I want to explore in what follows. It is even possible to question the problem of the fallacy of presentism, and to ask whether the world as Aristotle understood it is so unrecognizably different to ours, such that the thinking of questions of political justice would be inapplicable, depending on the epoch. Political violence of the kind discussed in Thucydides’ History of the Peloponnesian War continues in similar forms in contemporary history, including the history that was so decisive for Levinas’s own experiences, and which marked his philosophical work; as Jean Amèry noted in At the Mind’s Limits: Yes, the SS could carry on just as it did: there are no natural rights, and moral categories come and go like the fashions. A Germany existed that drove Jews and political opponents to their death, since it believed that only in this way could it become a full reality. And what of it? Greek civilization was built on slavery and an Athenian army had run wild on the Island of Melos as had the SS in Ukraine.17 Amèry’s comments on the continuity of history as it rhymes, if not repeats (to cite Mark Twain’s apocryphal phrase), makes one think that the applicability of past thinking to the present and vice-versa may not necessarily be ill-conceived, if the implications of political decisions can be equally horrific. And yet concomitant to this is a counter-thought of rupture: that, following the thinking of Levinas (and 13 See (Simmons 1999). 14 (MacIntyre 2007, p. 173). 15 For more on this question, see (Fagenblat 2010), especially Chapter Three. 16 Minima Moralia, p. 130. 17 (Amèry 1980, p. 11). Religions 2019, 10, 126 4 of 18 Adorno could be said to underscore the thinking of Levinas throughout what follows), it is necessary to put into question (and possibly, into the dock) the continued influence of the ancients and an entire tradition of Western philosophy in the post-Auschwitz world, where that tradition and culture failed to stop the horror. Here, Adorno’s quote, which I have selected for the epigraph above, is apposite: it may be that radical departures are needed from the canonical tradition of philosophy, requiring new thoughts which, to quote the poetic and moving ending of Minima Moralia, ‘contemplate all things as they would present themselves from the standpoint of redemption . . . Perspectives must be fashioned that displace and estrange the world, reveal it to be, with its rifts and crevices, as indigent and distorted as it will appear one day in the messianic light.’18 If anything in philosophy is so ‘familiar’ that may require ‘distancing’, it is certainly the thought of Aristotle. Before I am misunderstood, let me emphasize that this is not at all to lay the violence of Melos, the SS, or other political calamities, at the feet of Aristotle; such would be an absurd proposition. It is about a distancing or displacing of canonical philosophical axioms, in order that urgent ethico-political questions be thought anew; it is to worry not that Aristotlean justice will directly lead to the perpetration of horror, but to worry that it will fail to produce adequate responses to horror (and thus perhaps, indirectly exacerbate it). Further, what may come into sharper relief through the staging of this encounter between Aristotle and Levinas is the familiar theme of an oscillation in Western thinking and politics between ‘Athens’ and ‘Jerusalem’—proper names often taken to signify different perspectives, which nevertheless find themselves imbricated in European culture and philosophy.19 It may be that the more ‘exorbitant’ ethics, leading to an exorbitant justice, which I argue is found in Levinas, finds its provenance in the Judaic tradition that was so important to him, which certainly influenced his philosophical thinking (even if he also took care to mark out a differentiation between his Talmudic and philosophic writings). A thinking from that tradition may radicalize a more Hellenic preference for measure and moderation, with important consequences for matters of political praxis. This is another enormous set of questions that I cannot adequately address here, but should be understood as an important consideration informing the arguments that follow at every turn. In order to illustrate the differences as I perceive them between Aristotle and Levinas, I am going to apply the stakes of this disputation of the meaning of justice to a question of pressing contemporary political concern: the plight of asylum-seekers and refugees. According the UNHCR, there are 68.5 million displaced persons in the world—asylum-seekers, refugees, and internally displaced persons—the greatest at any point since records began.20 Aristotle is silent on the question of asylum—aside from worrying in the Politics about foreigners becoming citizens if a society becomes too large to monitor them, which I discuss below—but the question I want to focus upon here is what implications might Aristotle’s thinking of justice, as a form of virtue, and conceived as moderation, have for the way in which asylum politics is understood and practiced? Additionally, how might Levinas offer a different, more radical or even excessive orientation to the same considerations? After first examining the meanings of justice to be found in both thinkers, I apply their thought to this question, and in particular, the historical case of the Kindertransport, which will illustrate the distinction I am drawing: ten thousand children were saved under this scheme, itself an exemplary act in many ways, but possibly bounded by a prudential, moderate vision of justice, itself inadequate when one realizes that the total number of children destroyed in the Holocaust was 1.5 Million.21 Thus, an exorbitant, seemingly impossible hospitality, on the part of the UK at the time, might have saved so many more from calamity. Furthermore, while the responsibility was not solely on the UK—other states in or 18 Minima Moralia, p. 247. 19 Derrida made this the theme of his first essay on Levinas: ‘Are we Jews? Are we Greeks? We live in the difference between the Jew and the Greek, which is perhaps the unity of what is called history’. See (Derrida 2001, pp. 97–192). Levinas himself often made similar remarks: ‘Europe, then, is the Bible and the Greeks.’ See (Robbins 2001, p. 137). 20 (UNCHR Global Trends Report 2017). 21 (Harris and Oppenheimer 2001, p. xii). Religions 2019, 10, 126 5 of 18 outside Europe might have played a similar role—the focus on a single state taking such responsibility will serve to illustrate another important point where Aristotle and Levinas part company: on the question of reciprocity. As I will explain further below, Aristotle sees a positive role for generous reciprocity in the functioning of a political community, whereas Levinas will repeatedly insist that ethics should not be generated from reciprocal considerations. 2. Aristotle and Justice As is well-known, Aristotle’s conception of the good is that of happiness, but a happiness, eudaimonia, understood as realized via the pursuit of a virtuous life. The happy person acts in accordance with virtue, and one of the qualities of the virtuous person is to be just. Justice, then, is related to Aristotle’s conception of what is good both for the individual and the political community of which they are a part. The meaning of justice is, to be sure, a dominant theme of philosophy going back to the pre-Socratics, and famously, the major topic of Plato’s Republic. A particularly influential account of the meaning of justice, however, is that given by Aristotle in his Nicomachean Ethics (hereafter NE). There are multiple interpretations of justice given in Book Five of the NE, from justice as respect for the law, to justice as complete virtue, as distributive or reciprocal, as corrective or equitable; the distinctions are not always clear, which may be due to the NE being a set of lecture notes rather than a completed text which Aristotle had fully elaborated.22 Yet across the different meanings of justice, there is a particular theme that I wish to isolate (while also being attentive to some other aspects): that of moderation. He wrote that justice is a ‘sort of proportion’23, and that ‘Injustice, on the contrary, is concerned with what is unjust, that is, a disproportionate excess or deficiency of what is beneficial or harmful; so injustice is an excess and a deficiency, because it is concerned with excess and deficiency.’24 In this account, justice itself is the avoidance of excess, a keeping within bounds of proportion, of measure, of moderation. To be just is not to go too far, nor to do too little—one might call it, a little tongue-in-cheek, the Goldilocks principle of justice. Meden agan, µηδὲνἄγαν—nothing too much—was the inscription on the temple of Apollo at Delphi, and was a leitmotif of the Athenian polis.25 While it is difficult to quantify in any kind of absolute way—one can only sense its influence, for the most part, by reading between the lines of arguments—it is arguable that this concept of justice continues to dominate philosophical thinking through to the present day. Thus, the task of the present section is to understand just what is meant by justice in Aristotle, how it relates to virtue, and the implications for politics—particularly for questions of foreigners and the politics of asylum. As I will elaborate further on, my argument is that an integrated reading of Aristotle’s reflections on justice with his reflections on politics, demonstrates a commitment to a bounded polis that seeks to delimit the number of foreign arrivants, based on considerations of numbers; thus, an Aristotlean conception of justice is problematic for those seeking a compassionate and more open approach by sovereign states to refugees where the question of numbers is at issue. A part of the difficulty, and ambiguity, of establishing what Aristotle means by justice—and then thinking this specifically in relation to political justice—concerns the problems of integrating what he writes about justice with his writings on virtue (where justice is itself one of the virtues), and at the same time his writings on politics (and one could add metaphysics, rhetoric, and so on). A particularly important question in this context is: if justice is a virtue, does that mean that the just act does not have to do with the result, the thing in itself, but rather the character disposition of the actor? Is this the only way to measure political justice? 22 (Aristotle 2004, p. viii). All references to the Nicomachean Ethics are drawn from this edition. 23 Nicomachean Ethics, 1131a, p. 86. 24 Nicomachean Ethics, 1134a, p. 92. 25 See, for example, ‘Protagoras’ in (Plato 2005, p. 51). Religions 2019, 10, 126 6 of 18 An important distinction here is between mesotēs and meson—between a mean state (mesotēs) and the mean (meson), neither excessive nor deficient, the virtue relative to the self.26 Aristotle intends for us to understand virtue as a state of character, as opposed to a feeling or a capacity, as famously outlined in Book Two of the NE. However, a key question is whether establishing what is meant by a virtuous character can be accomplished by reference to the responses of the actor. Scholars disagree on this point, but will often acknowledge the inherent ambiguity in Aristotle’s text.27 Lesley Brown argues that Aristotle is wrongly understood as a precursor to modern theories of virtue ethics, in asserting the primacy of the virtuous character of the actor prior to engaging in acts—as Brown notes, Aristotle acknowledges that some just acts are committed by people who are themselves not yet just (that is, just in that they are virtuous).28 However, this is disputed by other scholars, such as David Bostock, who writes that ‘The best suggestion seems to be that it is not the virtuous action, on each occasion, that has something middling about it, but rather the general disposition from which it flows.’29 I want to take up this problem concerning virtue as it relates to justice. Aristotle writes that justice is ‘complete virtue; virtue, however, not without qualification but in relation to another person.’30 This explains why Aristotle considers justice the greatest and most complete virtue (what he also refers to as ‘general justice’) because it refers to another person.31 (In passing, I would note an affinity here with Levinas’s definition of justice in Totality and Infinity: ‘the relation with the Other, that is, to justice’—a conception of justice that has to do primarily with a relation to another human being, rather than, for example, a formal definition of justice as simply fairness).32 Is justice, then, as a virtue, related to the disposition of character of the actor, or does it have to do with the nature of the act performed by the actor? In Book Five of the NE, Aristotle writes the following about justice: ‘So the just is a sort of proportion. Being proportionate is not a property peculiar to abstract number, but belongs to number in general’.33 This is explained by reference to geometric proportion, wherein a just distribution can be established. And yet, Aristotle was not ignorant of the problematic nature of referring to justice with reference to numbers; in his Eudemian Ethics, he criticizes unnamed opponents for doing just this: They ought in fact to demonstrate (the existence of) the good itself in the opposite way to that in which they do now. As things are, beginning with objects not agreed to possess the good, they demonstrate what are agreed to be goods; starting with numbers, (they prove) that justice is a good, and health, on the grounds that they are forms of order and numbers, good belonging to 20 numbers and monads because the one is the good-itself. They ought to start with agreed (goods), such as health, strength, and temperance, (in order to show) that the fine is present even more in unchanging things. 34 As Stephen Menn observes: ‘ . . . Aristotle thinks that the reduction of Forms to numbers and of philosophy to mathematics . . . means that our explanations in fact have nothing to do with goodness.’35 Despite this awareness, Aristotle’s own conception of justice seems to undermine this distinction. This picture becomes more problematic when we link these considerations to what Aristotle says about justice and political communities, in both NE and the Politics. In NE, in reference to justice as obeyance of the law, he writes, ‘So, in one sense, we call anything just that tends to produce or to 26 (Brown 2014, pp. 64–65). 27 See the discussion, for example, in (Brown 2014, p. 78). 28 (Brown 2014, p. 78). 29 (Bostock 2000, pp. 42–43). 30 Nicomachean Ethics, 1129b, p. 83. 31 Nicomachean Ethics, p. xxi. 32 (Levinas 1969, p. 89). 33 Nicomachean Ethics, 1131a, p. 86. 34 (Aristotle 2005, p. 10, 1218a). 35 (Menn 2012, p. 429). Religions 2019, 10, 126 7 of 18 preserve happiness and its constituents for the community of a city.36; in the Politics, he writes, ‘In the state, the good aimed at is justice; and that means what is for the benefit of the whole community.’37 Justice as lawfulness is here linked to eudaimonia, the happiness or good-fated-ness of polis dwellers; and happiness, as defined in Book One of NE, relates not to simple pleasure or contentment, but rather to being in conformity with virtue: ‘happiness is a certain kind of activity of the soul in accordance with complete virtue’, and complete virtue pertains to justice.38 There would seem to be a function for justice in keeping political communities happy, and doing so by conforming to justice-as-virtue. However, it can be asked what this means when it comes to the relationship of a political community to foreigners who arrive at it? I repeat that Aristotle is silent on the question of political asylum (despite himself being for a time an exile, and his familiarity with themes of exile and hospitality from the Greek tragedies which he wrote about), but he does address the issue of foreigners in the Politics. In Chapter Seven, he writes that in considering the size of the state, ‘one ought to look not at numbers but at capacity’, possibly an implicit critique of Plato’s bizarrely specific ideal citizenry figure of 5040 citizen farmers and their dependents in The Laws.39 He continues, ‘ . . . even granting that we must have regard to numbers, we must not do so without discrimination: although we must allow for the necessary presence in states of many slaves and foreigners (residents or visitors), our real concern is only with those who form part of the state, ie. with those elements of which a state properly consists.’40 Thus, there is a distinction drawn here between numbers and capacity—that the number of people only matters to the extent that it affects the proper functioning of the polis: ‘In order to give decisions on matters of justice . . . it is necessary that the citizens should know each other and know what kind of people they are.’ If this is no longer the case, ‘it becomes easy for foreigners, and aliens resident in the country, to become possessed of citizenship, because the excessive size of the population makes detection difficult.’41 In the Nicomachean Ethics, he quotes Hesiod approvingly: ‘on the subject of hospitality, “Neither let many share thy board, nor none”’, and observes that ‘one cannot have a city with ten people and with 100,000 it would no longer be a city. Presumably there is no one correct number, but anything between certain limits.’42 In the move to political justice, then, numbers are indeed an explicit consideration—because capacity, as Aristotle seems to acknowledge (‘even granting that we must have regard to numbers’ . . . ), cannot but be figured as an issue of numbers in this context, and he gives a numerical range within which moderation is to be achieved, without specifying the number. Excess in relation to the number of foreigners entering a political community is precisely figured as a question of numbers—not as a disposition of character by polis-dwellers. There is a capacity beyond which it would be necessary to limit the intake of outsiders, in order that the proper functioning of the state be maintained.43 In other words, what emerges in Aristotle’s thinking about political justice as it pertains to outsiders, is a consideration of justice, figured as a question of capacity, understood as numbers, which is both affirmed and denied in different places in his writings (affirmed in NE, denied in Eudemian Ethics). The account of virtue-as-justice which provides the shared conception of eudaimonia, which defines and informs the life of the polis, pertains to the good of the members of that polis, and on that 36 Nicomachean Ethics, 1129b, p. 82. 37 (Aristotle 1992, 1282b14, p. 207). 38 Nicomachean Ethics, 1120a, p. 20. 39 The Politics, 1325b33, pp. 402–3. 40 The Politics, 1325b33, p. 403. 41 The Politics, 1323b11, p. 405. 42 Nicomachean Ethics, 1170b, pp. 249–50. 43 I will not dwell here upon Aristotle’s disparaging remarks about the inferiority of foreigners relative to Athenians, except to note with interest that it has been argued that Aristotle understands human nature as changeable and shaped by political membership. My criticisms of Aristotle are not simply about how he sees foreigners, but the implications for foreigners—specifically, those in need of asylum—of his conceptualisation of justice and politics. See (Frank 2004). Religions 2019, 10, 126 8 of 18 basis, delimits membership and eschews excess, including excess figured as capacity (which I argue, must necessarily mean a question of numbers), as the above-quoted remarks in Politics reveal. I will make some critical comments on this conception of justice, before turning to Levinas. Firstly, as I have indicated (aware that I have only briefly touched on a vast field), there is a certain ambiguity and extant disagreement amongst Aristotlean scholars as to the meaning of virtue; there is also ambiguity about the meaning of justice in Aristotle’s writings as to whether it should be understood as pertaining to the nature of acts (figured as calculation, including with reference to numbers) or as pertaining to dispositions of character. Secondly, referring back to the issue I raised concerning Aristotle’s discourse and its reception through to the present: on one level, there may simply be a rhetorical effect of the repeated recourse to moderation, measure, produce, geometric proportion, and so on—an ethics of temperance and calculation, whether understood properly or perhaps misused in modern political discourse and reasoning. Perhaps it is necessary to be attentive to this rhetoric of moderation and calculation, and to ask what justifies a ‘moderate’ position on political questions, and what results such a position would generate for political praxis. Aristotle’s own vagueness on the numbers proper to the size of a political community is precisely echoed in the vague talk of limits propounded by modern politicians when discussing the politics of asylum—there is a number that is too much, and we do not know what it is, but will assert the givenness of this logic nevertheless. Whether this is from Aristotle or not, the thought is identical, even if the motivation is perhaps less noble (a modern politician using an Aristotlean-sounding argument as a fig-leaf for xenophobia, political pandering, or avoidance of responsibility). Thirdly, a comment on the prudential ethos that informs the ethics of Aristotle—the need for communities to be healthy and sustaining. As Roger Crisp observes in his introduction to NE, ‘nowhere in Aristotle is there a recommendation of any kind of genuine self-sacrifice’.44 It may be that following from Levinas, what we understand by ethics, and also crucially, in the move from ethics to justice (more on this below), should preserve at least the possibility of sacrifice, and of going to excess, in order to safeguard the welfare of others. One thinks in this context of states like Jordan and Lebanon, Chad and Ethiopia, who host enormous populations of stateless persons, at a very high ratio to their own populations: one in four people in Lebanon is a refugee, a ratio that would make Western policy-makers’ heads explode.45 That is to say that justice as understood by Levinas would not pertain to the good-functioning of the political community alone, but have a different telos—that of responsibility for others. It would, of course, be possible to construct an Aristotlean argument about natural political justice that might do the work of a universal guarantee of human dignity, in modern parlance; though this is a complicated idea, if one understands physis to entail a human being that is already a being-in-place as a polis-dweller, and if this should be understood as pertaining only to members of organized political communities.46 Additionally, while it is possible to construct such an account in neo-Aristotlean terms, such as in the work of Martha Nussbaum and her ‘capabilities’ approach, where recognition of human dignity becomes possible, something is clearly lacking in these terms in that refugees continue to go unrecognized. As Hannah Levinson observes apropos of Nussbaum’s approach: On Nussbaum’s account, the “moral concept of the human” drives us toward “recognition,” or moral acknowledgment and thus accession to capability-oriented rights claims. How, then, are refugees relegated to their statelessness by another conscious moral being, or set of conscious moral beings? How are they left languishing under the effete jurisdiction of international law, unprotected by the state, banished from her birthplace, former residence, 44 Nicomachean Ethics, p. xi. 45 https://www.bbc.com/news/av/world-middle-east-35163273/lebanon-one-in-four-a-refugee, retrieved 15 February 2019. 46 On this question, see (Benjamin 2016). https://www.bbc.com/news/av/world-middle-east-35163273/lebanon-one-in-four-a-refugee Religions 2019, 10, 126 9 of 18 and former community? If Nussbaum stands by her argument, these questions which pertain specifically to the situations and traumas of the refugee cannot be answered adequately by the capabilities approach as I read it. The normative ideal Nussbaum purports has not, and perhaps cannot, account for the treatment of the stateless, rightless bodies of refugees.47 Finally, a comment on the role that reciprocity plays in Aristotle’s thinking of justice. Aristotle distinguishes reciprocity from distributive or equitable forms of justice (as not all reciprocity can be equitable—he gives the example of an official having the right to employ violence, where it is not proper to extend to the citizen a right to strike back).48 He does see a role for reciprocity, however, in getting citizens to requite good acts with good acts in a virtuous circle of reciprocity: ‘This is why they erect a temple of the Graces in a conspicuous place, so that benefits might be repaid. This is the special characteristic of grace, because one ought both to perform a return service to someone who has been gracious, and another time to make the first move by being gracious oneself.’49 Thus, a political community is well-served, on this account, when its members requite good acts with good acts. This is important to note because as will be seen, it marks out another crucial point of difference with Levinas, who is at pains to deny the importance of reciprocity in his understanding of ethics (and, I will argue, the move from ethics to justice). 3. Levinas and Justice My argument in this section is that Levinas shifts the meaning of justice from an avoidance of excess, to the necessity of having to choose how one’s responsibility is enacted with the advent of the third. In other words—and this is the truly radical moment in Levinas that offers an entirely different way of thinking about political justice—on my account, ethical excess survives the transmutation of ethics into justice; that is, responsibility for others becomes divided, but remains excessive. As stated above, Levinas does not make of Aristotle an especial focus for critique; there are, however, critical references to be found in his work. Two interesting references to Aristotle occur early in his career. The following is taken from On Escape: Therefore, the need for escape . . . leads us into the heart of philosophy. It allows us to renew the ancient problem of being qua being. What is the structure of this pure being? Does it have the universality Aristotle conferred on it? Is it the ground and limit of our preoccupations, as certain modern philosophers would have it? On the contrary, is it nothing else than the mark of a certain civilization, firmly established in the fait accompli of being and incapable of getting out of it. And in these conditions, is excendence possible, and how would it be accomplished? What is the ideal of happiness and human dignity that it promises? 50 And from Existence and Existents: Western philosophy and civilization never gets out of “numbers and beings”, remaining conditioned by the secular world . . . the orekton of book 10 of Aristotle’s Metaphysics is the supreme being, immobile, loved but never loving, terminus. The problem of the Good is formulated as a problem of ends. 51 Here, there are two references to Aristotle as associated with a society too bound up with the ‘fait accompli’ of beings, too preoccupied with numbers. That is, Aristotle is decisively implicated in 47 (Levinas 2010). In her paper, Levinson turns to Judith Butler’s thinking on precarity and a language of affect which can be appealed to in coalitional political pushes to achieve the recognition that is lacking. For Nussbaum’s account, see (Nussbaum 1993). 48 Nicomachean Ethics, 1132b, p. 89. 49 Nicomachean Ethics, 1133a, p. 89. 50 (Levinas 2003, p. 56). 51 (Levinas 2001, p. 29). Religions 2019, 10, 126 10 of 18 the overall critique of the history of philosophy that Levinas pursues from an early stage of his career. Aristotle prefers ends to excendence [climbing out of or escaping out of], numbers and beings to transcendence and the otherwise-than-being, reciprocity to unilateralism, moderation to excess, and eudaimonia to sacrifice. For Levinas, ethics—and following from ethics, justice—has little, if anything, to do with happiness, reciprocity, or moderation. It is not bound to numbers or calculation, to moderation or reciprocity, or to the happiness of the responsible subject or their political community. As Diane Perpich observes, ‘Never in the history of Western philosophy has there been an ethical responsibility so severe: a responsibility that increases with my every attempt to discharge it: that does not depend on choice or voluntary action; that is a responsibility not just for the other but for all of his responsibility as well.’52 The very excessiveness of Levinas’s ethics means that ‘In this picture of responsible subjectivity, there seems to be no place for the complacencies of ordinary moral life, where obligations are met, duties attended to, and the ego has time afterward to attend to his own cares and concerns.’53 Responsibility is excessive and infinite, and the responsible subject is as if held hostage by the other whom they are responsible to. All of this is a long way from the account of justice which Aristotle gives, discussed above, which pertains to the wellbeing of the members of a political community. In order to clarify the differences, before proceeding in the next section to give a practical example of what these differences might look like in situation, I will elaborate on some elements of Levinas’s thought which I argue are opposed to that of Aristotle. At a simple level, Aristotle’s ethics is a virtue ethics, whereas Levinas derives his ethics from the tradition of phenomenology and Judaic influences (a thinking of God as the infinite, which one also finds in Descartes). Aristotle’s thinking of ethics is just that—a thinking, a working through of the source of eudaimonia in virtue and the description of its qualities—whereas for Levinas, the ethical moment precedes its entering into the processes of intellection; ethics is manifest in the Face of the other, the advent of which is a pre-phenomenal event, that is, prior to the signification that makes the other manifest in thought; ethics, then, is not a product of reason, but is prior to it. As Michael Fagenblat observes, ‘Levinas sought to restore a new sense of an unconditional ethical imperative that could not be dismissed as merely abstract, formal, ahistorical, inauthentic, and ontologically inadequate. He did this by developing a phenomenology of the moral imperative that was derived not from the fact of Reason but from the face of the Other.’54 For Levinas, it is possible to be totally responsible for the other person, whose Face calls me into question and places a demand upon me to exercise such a responsibility. In Levinas, this ethical demand is excessive, even exorbitant—it is a delimiting of one’s own self in the name of the other, a tearing of the bread from one’s mouth to give to the other (more on the ethico-poetics of food below). Levinas writes in a moving summary of the ethics of Vladimir Jankélévitch, which the context makes clear he is in full agreement with, that the ethical demand is . . . a spending without counting, a generosity, goodness, love, obligation toward others. A generosity without recompense, a love unconcerned with reciprocity; duty performed without the “salary” of a good-conscience-for-a-duty-performed, without even the good conscience of being the bad-conscience-of-the-duty-not performed! All duties are incumbent upon me, all rights first due to others . . . It is an ethics without eudemonism. 55 The reference to ‘eudemonism’ and the anti-moderate language would seem to confirm this ethical thinking as a form of anti-Aristotleanism, and indeed Levinas links this passage to a thinking of ethics from a Judaic context. To the extent that eudaimonia is to be understood as a good-fatedness 52 (Perpich 2008, p. xiii). 53 The Ethics of Emmanuel Levinas, p. xiii. 54 A Covenant of Creatures, p. xix. 55 ‘Vladimir Jankélevitch’, in Outside the Subject, p. 87. Religions 2019, 10, 126 11 of 18 that is linked to happiness, Levinas is unconcerned with the effect of happiness engendered by the ethical response—what matters is the response itself, ‘a generosity without recompense’. Ethics in the thinking of Levinas, is excessive, a result of the transcendence of the other of which one is never freed—held hostage by the demand placed upon oneself by them. This responsibility is not a matter of measuring out appropriate duties: as Raoul Moati explains, for Levinas, ‘to welcome the other in its excess is no longer to measure it.’56 And yet as soon as there is more than one other other—that is to say, with the advent or arrival of the third—there may arise a need to start making choices between them. Levinas explains the point in Ethics and Infinity: How is it that there is justice? I answer that it is the fact of the multiplicity of men [sic] and the presence of someone else next to the Other, which condition the laws and establish justice. If I am alone with the Other, I owe him everything; but there is someone else . . . It is consequently necessary to weigh, to think, to judge, in comparing the incomparable. The interpersonal relation I establish with the Other, I must also establish with other men; there is thus a necessity to moderate this privilege of the Other; from whence comes justice. Justice, exercise through institutions, which are inevitable, must always be held in check by the initial interpersonal relation.’ 57 Note the use of the word moderate here, which, I am arguing, represents a key difference between Levinas and Aristotle. The reference to moderation, for Levinas, is not an avoidance of excess, but the inability to no longer simply give everything to or be entirely responsible for a singular other, as there is now a third who also places a demand upon the subject: ‘One must, then [with the advent of the Third] compare the incomparable. For me, this is the Greek moment in our civilisation . . . The importance of knowing, the importance of comparing, stems from them; everything economic is posed by them, and we then come to something other than love.’58 In other words, justice, in Levinas’s account, retains the excessive quality found in ethics, rather than retreating into a moderation that would precisely delimit excess. As Richard Cohen writes, ‘Justice, then, has a source and a guide: the moral transcendence of the other.’59 The key passage which makes this point occurs towards the end of Otherwise Than Being. Levinas writes, In no way is justice a degradation of obsession, a degeneration of the for-the-other, a diminution, a limitation of anarchic responsibility, a neutralization of the glory of the Infinite, a degeneration that would be produced in the measure that for empirical reasons the initial duo would become a trio. But the contemporaneousness of the multiple is tied about the diachrony of two: justice remains justice only, in a society where there is no distinction between those close and those far off, but in which there also remains the impossibility of passing by the closest. The equality of all is borne by my inequality, the surplus of my duties over my rights. The forgetting of self moves justice. 60 Justice, then, according to Levinas, is ‘in no way’ a ‘limitation of anarchic responsibility’. The excess he attributes to ethics is retained in the move to justice following the advent of the third. This is the fundamental point. Justice in Levinas is no longer bound to the moderate, but rather to the inevitable limitation of responsibility for a singular other by the presence of the third, where decisions will have to be made, and justice-as-politics begins. One other phrase from this passage needs to be remarked: the reference to those near and far off, a quotation from Isaiah 57:19, which he refers to repeatedly in his work. Thought in the context of 56 (Moati 2017, p. 16). 57 (Levinas 1985, pp. 89–90). 58 Is It Righteous to Be?, p. 133. 59 (Cohen 2010, p. 92). 60 (Levinas 2008, p. 159). Religions 2019, 10, 126 12 of 18 the politics of the asylum, this reference to peace between both those near and distant might trouble or undermine the privilege granted only to those who are near, that is, to the extant constituents of a political society, the limit problem of the demos—who counts in and who counts out in the considerations of a political community? While I cannot develop the thought here, this could also be linked to Levinas’s thinking of the ‘fraternité’ element of the famous French motto and his reflections upon the Rights of ‘Man’.61 Another key point in considering the difference between Levinas and Aristotle concerns reciprocity. In NE, Aristotle refers to the Temple of the Graces, which encourages the citizenry to requite good acts with good acts in a kind of virtuous circle of reciprocal generosity. However, Levinas is actively opposed to limiting ethics to reciprocity, as emerges in his engagement with, and critique of, Martin Buber. His issue with Buber’s ‘I and Thou’ is the symmetry and equality that he sees in this relationship.62 For Levinas, ethics is not delimited to the reciprocal, but is rather asymmetrical—the other comes from a dimension of a height, and commands me—and he is at pains to emphasise that the other’s responsibility for me is not my concern. If space permitted, these reflections could also be extended into other interesting areas between Levinas and Aristotle, such as their accounts of the experience of eating and the use of dietic imperatives as illustrative of ethics. For Aristotle, excess would be doing that which damages one’s own health, such as an excess of consumption of food; for Levinas, eating can be compared ‘with loving, which occurs beyond economic activity and the world’63, and belongs to the realm of permanent desire, but which also constitutes enjoyment—in this they may not be so far apart. Yet, Levinas often refers to food to illustrate the possibility of self-sacrifice as a meaning of the ethical and indeed the human interruption of being’s persistence in being, which he even links to hospitality: ‘It is not a gift of the heart, but of the bread from one’s mouth, of one’s own mouthful of bread. It is the openness, not only of one’s pocketbook, but of the doors of one’s home, a “sharing of your bread with the famished”, a “welcoming of the wretched into your house” (Isiash 58).’64 While Aristotle refers to beneficence towards others, it is not a logic of sacrifice of oneself, of giving to and even dying for the other. In summary, justice for Levinas is anarchical, excessive, and one might say intemperate, aneconomic; as Howard Caygill writes of Levinas’s ethics, ‘The experience of the other is one of excess and so does not figure in economy, or at least is not reducible to it.’65 For Levinas, politics must be able to be checked against ethical demands,66 and is not bound to reciprocity: Diane Perpich observes, ‘The relation to the other is an asymmetrical relationship that cannot be made reciprocal or symmetrical because the others’ alterity is not a relative quality but rather the very content of her being’.67 Such an asymmetrical relationship may lead to the possibility of sacrifice—even, ‘hardly possible, but holiness demands it—to die for the other.’68 But what does all this mean? What implications might it have for political justice, which is the specific register in which I wish to think about Levinas’s ideas concerning justice? In order to provide an illustration of how I think such a reconceptualization of political justice might have profound consequences for worldly affairs, I turn to a case-study of a specific political question—the politics of asylum. 61 See ‘The Rights of Man and the Rights of the Other’ in Outside the Subject, and the two essays on the Rights of Man in (Levinas 1999). 62 See ‘Dialogue with Martin Buber’, in Proper Names, p. 38. 63 Existence and Existents, p. 35. 64 Otherwise Than Being, p. 74. 65 (Caygill 2002, p. 64). 66 Ethics and Infinity, p. 80. 67 The Ethics of Emmanuel Levinas, p. 35. 68 Is It Righteous To Be?, p. 47. Religions 2019, 10, 126 13 of 18 4. Why Moderation is a Vice, or the Problem with the Kindertransport In order to clarify the difference that I am arguing separates Levinas from Aristotle concerning political justice, I will recapitulate this gigantomachy in a context where implications for praxis might be made manifest: specifically, concerning the politics of asylum. In particular, I will focus upon the case of the Kindertransport—the transport of approximately ten thousand Jewish children from central Europe to safety in the United Kingdom in the late 1930s—and what I think is wrong with it. It may strike the reader as indecent to suggest that something is ‘wrong’ with saving ten thousand children from calamity. However, the failure is not contained within the nature of the act itself—the admirable refuge proffered to the vulnerable—but to its scope—ten thousand children69, when a total of around 1.5 million Jewish children ultimately perished in the Shoah.70 Given this stark disparity between those saved and those killed, and who might have been saved, the moral stakes of how one conceives of political justice are brought into stark relief.71 Here is where the differences that distinguish Levinas from Aristotle become vitally important. I noted above a certain ambiguity regarding Aristotle and the figuring of excess and the size of political communities as a question of capacity and perhaps numbers, despite Aristotle’s critique of reckoning virtue as a set of numbers. For the Aristotle of the Politics, as noted above, it is permissible to limit the intake of foreigners if their number becomes too large to manage. The emphasis on moderation and the avoidance of excess—if this pertains to the nature of acts and not just dispositions of character, as discussed above—would already prepare the way, both philosophically and rhetorically, for a delimitation of the limits of welcome to foreigners. While it is true that in NE Aristotle refers to ‘magnificence’ and large-scale generosity, the question is how to reconcile this with the counsel against excess, on the one hand, and the limitation of the size of the polis, on the other, in determining what an appropriate Aristotlean response to the plight of vulnerable suppliants should be, where the question of numbers becomes ineluctably engaged. It is difficult to establish exactly how we should see Aristotle’s thinking of moderation, of numbers, of justice-as-virtue, and of the political, in order to form political judgments on questions of this sort. However, the question of the foreigner, their treatment and status, was not unknown in Aristotle’s day; thus my critique is not simply an unfair imposition of modern sentiments upon the past. My concern is how the philosophy of Aristotlean moderation may influence how these questions are taken up, and given the preceding observations, one has cause to be concerned about this influence, from the perspective of seeking to safeguard the human dignity of large numbers of persons in need, which might challenge and strain the ability of a state to cope with their arrival and integration. One could also be concerned about the Aristotlean emphasis on reciprocity as a safeguarding of just outcomes, in that good acts are involved in a reciprocal cycle of good acts committed by others; in terms of political asylum, this would manifest in a state refusing to take in refugees unless others agree to do the same, and eschewing unilateralism. In short, to the extent that an Aristotlean conception of the political lacks an element of self-limiting or even self-harming sacrifice, as noted above, which fails to give the other person priority and to accept that priority is the orienting focus of one’s political responsibility, then outcomes like that noted above concerning the child Jewry of Europe are possible and remain probable. A radically different conception of political justice becomes possible when thinking about Levinas in relation to politics (given that he is not himself ostensibly a political theorist, and treated political questions somewhat indirectly or at a level of abstraction that did not necessarily provide concrete 69 (Fast 2011, pp. 14–15). 70 https://encyclopedia.ushmm.org/content/en/article/children-during-the-holocaust, retrieved 17 January 2019. 71 In work I am developing elsewhere, I take up this issue of the memory of the disappeared in relation to Derrida’s notion of ‘hauntology’, as an important founding ethical principle of political communities—remembrance of the disappeared as informing responses to those who newly arrive—which could be linked to the argument I am making here concerning Levinas. https://encyclopedia.ushmm.org/content/en/article/children-during-the-holocaust Religions 2019, 10, 126 14 of 18 suggestions for praxis). What would have been the consequences for the United Kingdom if they had accepted one and a half million child refugees, eschewing moderation or prudence, acting unilaterally without regard for reciprocity on the part of other states, for the safeguarding of those ‘far off’, taking the bread from their own mouths to give (or at least, to share) with the other, the possibility of sacrificing for the other, demanded by ‘holiness’? Is this an impossible, ‘pure’ hospitality, to speak in Derrida’s language? But there are examples of this; as mentioned above, one thinks of all the non-Western states who put the West to shame in their hosting of the vast majority of stateless people in the world, from Jordan and Lebanon to Chad and Ethiopia to Bangladesh and Colombia; on a lower scale, but still significant, is the possibility of Western states acting in a similarly exemplary fashion, as in the German decision to accept close to a million refugees in one year, or Italy’s now defunct program ‘Mare Nostrum’, which rescued thousands of people from the sea who otherwise might have disappeared completely. Such a politics is not impossible, it is just mostly not done; most politics tacks toward Aristotlean moderation, if not outright mean-spiritedness and cruelty, and opts for what is best for the flourishing of the extant political community. Things are even going backwards on this point in Western states: one might argue (as I have) that the Kindertransport was terribly inadequate, but within its limits, it was still highly noble; more recently, the United Kingdom was willing to take less than 500 Syrian children under the Dubs Amendment established by Lord Dubs, himself a child of the Kindertransport, who received little support.72 One should be attentive to the disappeared as the very meaning of political responsibility and justice: peace to those now gone who will never come back, peace to those not yet born, who have already disappeared because of ‘moderate’ considerations which they are fatefully moving towards. 5. Conclusions Should political justice be delimited to the moderate? What are the implications of this for political praxis? Is it not the case that, in the words of Thomas Paine, ‘moderation in principle is a species of vice’?73 If, for example, in the context of the politics of asylum, moderation demands that one not go too far, has regard to the flourishing or even survival of the extant political community, and that therefore one not be excessive in the welcome proffered to the vulnerable other, become acceptable as an ethical politics? Is justice itself, ethical in this case? Additonally, how much of all this is Aristotle’s fault? In my view, it is somewhat undecidable (and debated in the critical literature, as discussed above) whether Aristotle is guilty of the things that Levinas (and myself) accuse him of—a thinking that ‘never gets out of numbers and beings’, that emphasises moderation indeed (and not just in the comportment of the virtuous person), and that may be itself deforming of political consequence. It is impossible to rigorously draw a straight line from the profound, if sometimes contradictory or unclear, teachings of NE and the Politics, to the pronouncements of ostensibly prudent (and mostly, Western) politicians giving fine reasons why there is only so much that can be done. Just recently, Emmanuel Macron repeated Michel Rocard’s nonsensical hyperbolic line that France ‘cannot welcome all the misery in the world’ (as if someone had asked them to).74 These attitudes obtain, and appeal to, a sense of the moderate, the prudent, and the cautious. Perhaps this is no more than a misuse of the legacy of the philosopheme of moderation. However, I have argued that it is nevertheless necessary to question whether it is the case that Aristotle, and more specifically, the concept of justice as it permeates in multiform fashion throughout philosophical and political life, is responsible for harmful delimitations of political action as I have described above in relation to the Kindertransport. It may be that those who insist that moderation pertains to the virtuous actor and not the action are correct, in which case, 72 https://www.independent.co.uk/news/uk/home-news/dubs-child-refugees-home-office-immigration-home-office- supreme-court-a8566191.html, retrieved 17 January 2019. 73 (Paine 1998, p. 383). 74 https://www.newstatesman.com/world/europe/2018/01/macron-s-visit-calais-shines-light-his-theresa-may- immigration-policies, retrieved 17 January 2019. https://www.independent.co.uk/news/uk/home-news/dubs-child-refugees-home-office-immigration-home-office-supreme-court-a8566191.html https://www.independent.co.uk/news/uk/home-news/dubs-child-refugees-home-office-immigration-home-office-supreme-court-a8566191.html https://www.newstatesman.com/world/europe/2018/01/macron-s-visit-calais-shines-light-his-theresa-may-immigration-policies https://www.newstatesman.com/world/europe/2018/01/macron-s-visit-calais-shines-light-his-theresa-may-immigration-policies Religions 2019, 10, 126 15 of 18 prudential or mean-spirited attempts to not go to excess in times of moral urgency are not acts of fidelity, but rather betrayals of the ethos that Aristotle promulgated. Perhaps. However, I am not convinced, based upon the insistence in his writings on the need for measure as a leitmotif of justice itself (and not simply the virtuous actor), or the need to keep political communities from admitting too many foreigners; nor does this also resolve the problem about a demand for reciprocity that one also finds in Aristotle, which is also directly contrary to the seminal thrust of Levinas’s ethics: ‘Here [in ethics] there is no “human commerce”, not a simple swapping of responsibilities!’75 A wonderful illustration of the Levinasian excessive figuration of justice which I have sought to articulate, can be found in Martin Luther King Jr’s profound ‘Letter from Birmingham Prison’. In responding to the criticisms he faced from white pastors in Alabama—why, King, are you stirring up this trouble and not being patient?—King critiques the attitudes of what he calls ‘white moderates’, who, he writes, ‘are more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice’.76 In distinguishing justice from the law, King insists that justice is not moderate or prudential, but rather can or even should be disruptive and extreme; he embraces the word ‘extremist’ as it applies to a seeking of justice in the name of love, and calls for ‘creative extremists’ to fight for justice.77 King even rejects the argument that such action is irresponsible in that it may provoke a backlash, and that he should take the counsel of white moderates and ‘wait for ‘a more convenient season”.78 What matters (and here King sounds exactly like Levinas) is not what happens to me, but what happens to the other person79; to refuse to disrupt a social order in order to preserve one’s own harmony or the existing harmony of a political community, preferring this to the justice of responding to the needs of others (where justice is figured as justice for that community itself, the justice it does for itself even at the expense of others, where the weighing of the interests of those near counts for more than those far off), is, to King, irresponsible. Again, I must emphasize that I do not read Aristotle as in agreement with this, despite what his defenders might want to say about how his account of virtue covers every ethical decision we might want to take, as proper to the virtue of that person; a reading of the Politics, as discussed above, makes it clear that the flourishing of the extant political community is of primary concern for Aristotle. In the context of the politics of asylum, which I have used to illustrate the differing conceptions of political justice at play, this latter point is of paramount importance. Very recently, former presidential candidate Hillary Clinton counselled European decision-makers to limit migration in order to avoid provoking the extreme right.80 In this, she is not far from right wing ideologues like Jean Raspail, who, in his execrable book The Camp of the Saints, depicts a France overwhelmed by a million migrants (a fear belied by Germany’s recent and fairly painless absorption of a similar number of refugees). What justifies this appeal to prudence, polemically, we might call Nietzsche’s tepidity: the ‘tepid temperature which is the presupposition upon which every calculation of prudence or expediency is always based’.81 Ten thousand children went on trains going West and were saved; other children went on other trains going East, and one and half million children ultimately lost their lives in the Shoah. One direction or the other in a political decision can mean a great deal—to borrow from Primo Levi’s The Periodic Table, ‘The differences may be small but can lead to radically diverse results, like railroad switches’82. It is necessary to remember that we do not live in the world as it would have been; 75 (Levinas 2000, p. 175). 76 (King 2018, p. 13). 77 Letter from Birmingham Jail, pp. 19–20. 78 Letter from Birmingham Jail, p. 13. 79 Letter from Birmingham Jail, p. 40. 80 https://www.theguardian.com/world/2018/nov/22/hillary-clinton-europe-must-curb-immigration-stop-populists- trump-brexit, retrieved 17 January 2019. 81 (Nietzsche 2013, p. 15). 82 (Levi 2015, p. 803). https://www.theguardian.com/world/2018/nov/22/hillary-clinton-europe-must-curb-immigration-stop-populists-trump-brexit https://www.theguardian.com/world/2018/nov/22/hillary-clinton-europe-must-curb-immigration-stop-populists-trump-brexit Religions 2019, 10, 126 16 of 18 we live in the other world, where the 1.5 million children were not saved, but only ten thousand. One example in an endless catalogue of horrors, in the Benjaminian pile of disasters that rises to the sky, but one that effectively makes the point about limits and numbers, and the dangers of moderation. To emphasize a prudential consideration and say that it would have been impossible to take them in and required too great a sacrifice, is to posthumously condemn them to death once more, and to condemn to death or immiseration those tens of millions of people—almost seventy million as noted in the introduction—currently without membership in a political community that will guarantee their rights, who are denied, as Hannah Arendt termed it, their ‘right to have rights’.83 Prudence and moderation are morally suspect, and even, in some circumstances, morally bankrupt. What Levinas—and King—invite us to do is to consider the possibility that justice can be radical and excessive, not prudent and moderate: ‘The possibility of sacrifice as a meaning of the human adventure!’84—a responsibility that is infinite and not bound to the calculative or the moderate, which, figured as political justice, looks a lot different to contemporary politics, including the politics of asylum, as the international community drifts along in a state of moral torpor, with failed refugee conferences stretching from Evian in 1938 to New York in 2016. Adorno, who I began by quoting and who put into question the influence of Aristotlean moderation on modern sensibilities (and in part inspired the preceding reflections), observed with Horkheimer that it may be necessary to ‘scorn logic if it is against humanity’.85 This is among the vital themes bequeathed to our understanding of the ethical by Levinas: ‘And all I have done is to find a relation that is not an adding up.’86 Funding: This research received no external funding. Acknowledgments: My thanks to Richard Cohen and Jolanta Saldukaityte for welcoming me to their Levinas seminar in Paris in July 2018, where the reading of Levinas presented in this paper was first conceived. Conflicts of Interest: The author declares no conflict of interest. References Adorno, Theodor. 2005. Minima Moralia: Reflections from Damaged Life. London and New York: Verso. Adorno, Theodor, and Max Horkheimer. 2002. Dialectic of Enlightenment: Philosophical Fragments. Stanford: Stanford University Press. Amèry, Jean. 1980. At the Mind’s Limits: Contemplations by a Survivor on Auschwitz and its Realities. Bloomington: Indiana University Press. Aristotle. 1992. The Politics. Translated by Thomas Alan Sinclair and Trevor Saunders. London: Penguin Books. Aristotle. 2004. Nicomachean Ethics. Edited by R. Crisp. Cambridge: Cambridge University Press. Aristotle. 2005. The Eudemian Ethics Books I-II-VIII, 2nd ed. Oxford: Clarendon Press. Badiou, Alain. 2012. Ethics: An Essay on the Understanding of Evil. London and New York: Verso. Benjamin, A. 2016. The Problem of Authority in Arendt and Aristotle. Philosophy Today 60: 269. [CrossRef] Bostock, David. 2000. Aristotle’s Ethics. Oxford: Clarendon Press. Brown, Lesley. 2014. Why is Aristotle’s Virtue of Character A Mean? Taking Aristotle At His Word NE ii 6. In The Cambridge Companion to Aristotle’s Nicomachean Ethics. Edited by Ronald Polanksy. New York: Cambridge University Press. Caygill, Howard. 2002. Levinas and the Political. Oxon and New York: Routledge. Chalier, Catherine. 2002. What Ought I To Do? Morality in Kant and Levinas. Translated by Jane Todd. Ithaca: Cornell University Press. 83 The phrase originally appears in her Origins of Totalitarianism; for a recent in-depth discussion of this concept, see (DeGooyer et al. 2018). 84 Is It Righteous To Be?, p. 204. 85 (Adorno and Horkheimer 2002, p. 180). 86 Is It Righteous To Be?, p. 142. http://dx.doi.org/10.5840/philtoday2016330111 Religions 2019, 10, 126 17 of 18 Cohen, Richard. 2010. Buber and Levinas—And Heidegger. In Levinasian Meditations. Pittsburgh: Duquesne University Press. DeGooyer, Stephanie, Alastair Hunt, Lida Maxwell, Samuel Moyn, and Astra Taylor. 2018. The Right to Have Rights. New York: Verso. Derrida, Jacques. 1999. Adieu to Emmanuel Levinas. Translated by Pascale-Anne Brault, and Michael Naas. Stanford: Stanford University Press. Derrida, Jacques. 2001. Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas. In Writing and Difference. London: Routledge. Fagenblat, Michael. 2010. A Covenant of Creatures: Levinas’s Philosophy of Judaism. Stanford: Stanford University Press. Fast, Vera. 2011. Children’s Exodus: A History of the Kindertransport 1938–1948. London and New York: IB Taurus. Frank, Jill. 2004. Citizens, Slaves and Foreigners: Aristotle on Human Nature. American Political Science Review 98: 91–104. [CrossRef] Harris, Mark Jonathan, and Deborah Oppenheimer. 2001. Into the Arms of Strangers: Stories of the Kindertransport. London: Bloomsbury Publishing. King, Martin Luther, Jr. 2018. Letter from Birmingham Jail. London: Penguin. Levi, Primo. 2015. The Periodic Table. In The Complete Works of Primo Levi Volume Two. Edited by Ann Goldstein. New York and London: Liverlight Publishing Corporation. Levinas, Emmanuel. 1969. Totality and Infinity: An Essay on Exteriority. Translated by Alphonso Lingis. Pittsburgh: Duquesne University Press. Levinas, Emmanuel. 1985. Ethics and Infinity: Conversations with Phillipe Nemo. Translated by Richard Cohen. Pittsburgh: Duquesne University Press. Levinas, Emmanuel. 1991. Wholly Otherwise. In Re-Reading Levinas. Edited by Robert Bernasconi and Simon Critchley. Bloomington and Indianapolis: Indiana University Press. Levinas, Emmanuel. 1993. The Rights of Man and the Rights of the Other. In Outside the Subject. Stanford: Stanford University Press. Levinas, Emmanuel. 1996. Proper Names. Stanford: Stanford University Press. Levinas, Emmanuel. 1999. Alterity & Transcendence. Translated by Michael Smith. New York: Columbia University Press. Levinas, Emmanuel. 2000. God Death and Time. Stanford: Stanford University Press. Levinas, Emmanuel. 2001. Existence and Existents. Translated by Alphonso Lingis. Pittsburgh: Duquesne University Press. Levinas, Emmanuel. 2003. On Escape. Translated by Bettina Bergo. Stanford: Stanford University Press. Levinas, Emmanuel. 2006. Humanism of the Other. Translated by Nidra Poller. Chicago: University of Illinois Press. Levinas, Emmanuel. 2008. Otherwise Than Being or Beyond Essence. Translated by Alphonso Lingis. Pittsburgh: Duquesne University Press. Levinas, Emmanuel. 2010. Refocusing the Refugee Regime: From Vagrancy to Value. Res Cogitans 1: 18. MacIntyre, Alasdair. 2007. After Virtue: A Study in Moral Theory. London and New York: Bloomsbury. Menn, Stephen. 2012. Aristotle’s Theology. In The Oxford Handbook of Aristotle. Edited by Christopher Shields. Oxford: Oxford University Press. Moati, Raoul. 2017. Levinas and the Night of Being: A Guide to Totality and Infinity. New York: Fordham University Press. Nietzsche, Friedrich. 2013. On the Genealogy of Morals: A Polemic. London: Penguin, p. 15. Nussbaum, Martha. 1993. Social Justice and Universalism: In Defense of an Aristotelian Account of Human Functioning. Modern Philology 9: S46–73. [CrossRef] Paine, T. 1998. Rights of Man, Common Sense and Other Political Writings. Edited by Mark Philip. Oxford: Oxford University Press. Perpich, Diane. 2008. The Ethics of Emmanuel Levinas. Stanford: Stanford University Press. Plato. 2005. Protagoras and Meno. London: Penguin. Robbins, Jill, ed. 2001. Is it Righteous to Be?: Interviews with Emmanuel Levinas. Stanford: Stanford University Press. Simmons, William. 1999. The Third: Levinas’s theoretical move from an-archical ethics to the realm of justice and politics. Philosophy and Social Criticism 25: 83–104. [CrossRef] http://dx.doi.org/10.1017/S0003055404001029 http://dx.doi.org/10.1086/392123 http://dx.doi.org/10.1177/019145379902500604 Religions 2019, 10, 126 18 of 18 UNCHR Global Trends Report 2017. Available online: https://www.unhcr.org/5b27be547.pdf (accessed on 1 December 2018). Žižek, S., Eric Santner, and Kenneth Reinhard. 2013. The Neighbor: Three Inquiries in Political Theology. Chicago: University of Chicago Press. © 2019 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). https://www.unhcr.org/5b27be547.pdf http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Introduction: Proper Names Aristotle and Justice Levinas and Justice Why Moderation is a Vice, or the Problem with the Kindertransport Conclusions References 
work_uszlco2t5jh3fnjhzqx7yvtfe4	----	untitled \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 1 9-OCT-14 12:08 HEALTH LAW AS SOCIAL JUSTICE Lindsay F. Wiley* Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to ac- cess to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretch- ing back decades before the Affordable Care Act and encompassing pub- lic health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and policy. This Article labels, describes, and furthers a nas- cent “health justice” movement by examining what it means to view health law as an instrument of social justice. Drawing on the exper- iences of the reproductive justice, environmental justice, and food justice movements, and on the writings of political philosophers and ethicists on health justice, I propose that health justice offers an alternative to the market competition and patient rights paradigms that currently dominate health law scholarship, advocacy, and reform. I then examine the role of law in reducing health disparities through the health justice lens. I ar- gue that the nascent health justice framework suggests three commit- ments for the use of law to reduce health disparities. First, to a broader inquiry that views access to health care as one among many social deter- minants of health deserving of public attention and resources. Second, to probing inquiry into the effects of class, racial, and other forms of social and cultural bias on the design and implementation of measures to re- duce health disparities. And third, to collective action grounded in com- munity engagement and participatory parity. In exploring these commitments, I highlight tensions within the social justice framework and between the social justice framework and the nascent health justice movement. These tensions illustrate, rather than undermine, the power of viewing health law as social justice. They raise important questions that should prompt more fruitful and rigorous thinking within health law * Associate Professor of Law, American University Washington College of Law. The author wishes to thank Leo Beletsky, Micah Berman, Scott Burris, Jen Daskal, Dick Daynard, Robert Dinerstein, Larry Gostin, Peter Jacobson, Renee Landers, Amanda Leiter, Ben Leff, Gwendolyn Majette, Jennifer Mueller, Wendy Parmet, Matt Pierce, Jessica Roberts, and Sid- ney Watson for their invaluable input and feedback; Nick Masero and Jillian Rubino for their fantastic research assistance; and Dean Claudio Grossman for his unflagging support of faculty scholarship. 47 \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 2 9-OCT-14 12:08 48 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 activism and scholarship and with regard to the relationships between law and social justice more broadly. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 R I. THE SOCIAL JUSTICE FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . 53 R A. What Is Social Justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 R B. Environmental Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 R C. Reproductive Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 R D. Food Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 R II. LAW AS A TOOL FOR REDUCING HEALTH DISPARITIES . . . . 65 R A. Ensuring Access to Affordable, High-Quality Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 R B. Encouraging Healthier Behavior Choices . . . . . . . . . . . . 74 R C. Creating Healthier Communities . . . . . . . . . . . . . . . . . . . . 79 R III. HEALTH JUSTICE AS A FRAMEWORK FOR REDUCING HEALTH DISPARITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 R A. What Is Health Justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 R B. Broadening the Scope of Inquiry and Action: Putting Access to Health Care in Its Place . . . . . . . . . . . . . . . . . . 87 R C. Collective Responsibility: Probing the Influence of Bias on Health Disparity Interventions . . . . . . . . . . . . . . 95 R D. Collective Action: Moving Beyond Expert-Driven Agendas to Community Engagement . . . . . . . . . . . . . . . . . 101 R CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 R INTRODUCTION “[The dream] that preventable death and disability ought to be minimized is a dream of social justice.” —Dan Beauchamp, Public Health as Social Justice1 African-Americans are eight times more likely to be diagnosed with HIV, twice as likely to die within the first year of life, and 50% more likely to die prematurely of heart disease or stroke than their non-His- panic white peers.2 Non-Hispanic black children are about 1.6 times as likely to be diagnosed with asthma than are their Hispanic or non-His- panic white peers, and they are six to seven times as likely to die of 1 Dan E. Beauchamp, Public Health as Social Justice, 13 INQUIRY 6 (1976), reprinted in NEW ETHICS FOR THE PUBLIC’S HEALTH 101, 105 (Dan E. Beauchamp & Bonnie Steinbock eds., 1999). 2 Ctrs. for Disease Control and Prevention, CDC Health Disparities and Inequalities Report – United States, 2013, MORBIDITY & MORTALITY WEEKLY REPORT Nov. 22, 2013, at 1, 113. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 3 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 49 asthma.3 Hispanic women are 1.6 times as likely as non-Hispanic white women, and people living in poverty are about twice as likely as those with higher incomes, to be diagnosed with diabetes.4 Over the last few decades, life expectancy has increased dramatically among people in the top half of the income distribution, while remaining nearly flat among those in the bottom half,5 and even declining among women in many parts of the country.6 Average life expectancy can vary by as much as twenty-five years between neighborhoods just a few miles apart.7 Reducing social disparities in health8 has become a central—and deeply controversial—theme of the American health reform agenda.9 3 Lara J. Akinbami et al., Status of Childhood Asthma in the United States, 1980-2007, 123 PEDIATRICS S131 (2009). Notably, Puerto Rican children have the highest rates of asthma—they are about 1.5 times as likely as non-Hispanic black children, 2.5 times as likely as non-Hispanic white children and about three times as likely as Mexican-American children to be diagnosed. Id. 4 Ctrs. for Disease Control and Prevention, supra note 2, at 101. R 5 Peter G. Peterson Foundation, Increases in Longevity Have Gone Largely to High Earners, PETER G. PETERSON FOUND. (July 1, 2011), http://pgpf.org/Chart-Archive/0015_life- expectancy (discussing data from a 2007 Social Security Administration Report). 6 See, e.g., David A. Kindig & Erika R. Cheng, Even as Mortality Fell in Most U.S. Counties, Female Mortality Nonetheless Rose in 42.8% of Counties From 1992 to 2006, 32 HEALTH AFFAIRS 451, 453 (2013); Haidong Wang et al., Left Behind, Widening Disparities for Males and Females in US County Life Expectancy, POPULATION HEALTH NMETRICS, no. 8, July 10, 2013, at 3, http://www.pophealthmetrics.com/content/11/1/8. 7 Comm’n to Build a Healthier Am., Robert Wood Johnson Found., New Orleans: Short Distances to Large Disparities in Health, ROBERT WOOD JOHNSON FOUND., http://www.rwjf .org/content/dam/images/Sandbox/2013%20Commission/Charts/fig5_Health_NOLA.pdf (last visited Aug. 31, 2014). 8 I use the term “social disparities” to refer to disparities among racial and ethnic groups, as well as disparities along economic, gender conformity, functional ability, and geo- graphic lines. See MICHAEL MARMOT & RICHARD G. WILKINSON, SOCIAL DETERMINANTS OF HEALTH 2 (2d ed. 2006) (describing the “social gradient in health,” by which social position determines health status, as demonstrating “how sensitive health is to social and economic factors, . . . enabl[ing] us to identify the determinants of health among the population as a whole.”). A few racial disparities are biologically or genetically determined and therefore not amenable to intervention, but scientists are largely in agreement that the majority of racial disparities with regard to health outcomes are determined by social factors, as one would expect given the evidence that race and ethnicity are primarily social and political categories without a strong genetic or biological basis. See DOROTHY ROBERTS, FATAL INVENTION: HOW SCIENCE, POLITICS, AND BIG BUSINESS RE-CREATE RACE IN THE TWENTY-FIRST CENTURY (2011). 9 FAMILIES USA MINORITY HEALTH INITIATIVE, ISSUE BRIEF: MOVING TOWARD HEALTH EQUITY: HEALTH REFORM CREATES A FOUNDATION FOR ELIMINATING DISPARITIES (May 2010), available at http://www.sph.umich.edu/sep/downloads/IssueBriefMay10.pdf (not- ing that the Affordable Care Act “provides a critical foundation for addressing racial and ethnic health disparities through a number of key provisions—both those that will affect every- one but have a disproportionate impact on communities of color, as well as those that are designed specifically to eliminate health disparities”); KAISER FAMILY FOUND., HEALTH RE- FORM AND COMMUNITIES OF COLOR: IMPLICATIONS FOR RACIAL AND ETHNIC HEALTH DISPARI- TIES (Sept. 2010), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01/ 8016-02.pdf (discussing “key provisions of the [Patient Protection and Affordable Care Act] that will expand health coverage and are likely to improve access to care for people of color, as \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 4 9-OCT-14 12:08 50 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 From a relatively narrow discipline focused on highly individualistic in- teractions among patients, health care providers, and third-party payers,10 health law is expanding into a far broader field committed to assuring healthy living conditions and access to health care. Legal scholars exam- ining these developments have begun to draw parallels between health law and other socially conscious fields like civil rights law,11 disability law,12 and human rights law,13 while largely maintaining an emphasis on individual rights of access to affordable, high-quality health care. In- deed, the competing health law paradigms of “patient rights” and “mar- ket competition” are united in their near-exclusive focus on health care access and rationing of health care resources.14 At the same time, politi- well as some of the other provisions that will likely have either a direct or indirect impact on health disparities”). A documentary series, Unnatural Causes, which aired on PBS in the spring of 2008 and again in October 2009 while health reform was being actively debated in Congress, raised public awareness of health disparities and the social determinants of health. Excerpts from the series were shown as part of health reform town hall and community forum events across the country. See Press Release, Unnatural Causes, Award-Winning Documen- tary Series Changing the Way Americans Think About Health to Be Rebroadcast by PBS, available at http://www.unnaturalcauses.org/assets/uploads/file/Press_Rebroadcast.pdf (last visited Sept. 7, 2014). 10 See Mark A. Hall & Carl E. Schneider, Where Is the “There” in Health Law: Can It Become a Coherent Field?, 14 HEALTH MATRIX 101, 103–04 (2004) (proposing “an analytical framework that views health care law as a law of relational webs [among patients, their family and friends, physicians, medical institutions, health insurers, and employers] rather than a law of transactions.”); Einer R. Elhauge, Can Health Law Become a Coherent Field of Law?, 41 WAKE FOREST L. REV. 365, 369–70 (2006) (describing health law as “address[ing] a unique set of relations among persons involved in the treatment of health problems” including pa- tients, doctors, hospitals, employers and the government “that affect our health care”); William M. Sage, Relational Duties, Regulatory Duties, and the Widening Gap Between Individual Health Law and Collective Health Policy, 96 GEO. L.J. 497, 501 (2008) (“A relational perspec- tive, particularly where the delivery of medical services is concerned, is a defining characteris- tic of American health law.”). 11 See Sidney D. Watson, Section 1557 of the Affordable Care Act: Civil Rights, Health Reform, Race, and Equity, 55 HOW. L.J. 855 (2012) [hereinafter Watson, Section 1557]; Sid- ney D. Watson, Health Care in the Inner City, Asking the Right Question, 71 N.C. L. REV. 1697 (1993); Sidney D. Watson, Reinvigorating Title VI Defending Health Care Discrimina- tion—It Shouldn’t Be So Easy, 58 FORDHAM L. REV. 939 (1990); Sidney D. Watson, Race, Ethnicity and Quality of Care, Inequalities and Incentives, 27 AM J.L. & MED. 203 (2001). 12 See Jessica L. Roberts, Health Law as Disability Rights Law, 97 MINN. L. REV. 1963, 1964 (2013) (“[T]he ACA constitutes one of the most significant civil rights victories for the disability community in recent history.”). 13 See Gwendolyn Roberts Majette, Global Health Law Norms and the PPACA Frame- work to Eliminate Health Disparities, 55 HOW. L.J. 887 (2012). 14 See Hall & Schneider, supra note 10, at 102 (describing the “patient’s rights” ap- R proach, which “at heart hopes that medicine can be regulated by endowing patients with rights of autonomy to which medical professionals and institutions must defer” and the “law and economics approach,” which “at heart hopes that medicine can be regulated in the market, by consumers making purchasing decisions that discipline medical institutions,” as the two “com- peting paradigms” of health law); Rand E. Rosenblatt, The Four Ages of Health Law, 14 HEALTH MATRIX 155, 155 (2004) (describing the rise of the “modestly egalitarian social con- tract” paradigm in which the role of law is “to achieve a fair resolution of conflicting interests, especially in the light of highly unequal information and power between patients and [physi- \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 5 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 51 cal philosophers and ethicists have begun a productive discussion of the multi-faceted relationship between health and social justice, which ranges far beyond individual health-care rights to focus on collective needs and problem solving with regard to the social determinants of health, broadly defined.15 This Article explores what it means to view health law as social justice. I propose “health justice” as a distinct alternative to the “patient rights” and “market competition” paradigms that currently dominate health law scholarship, advocacy, and reform.16 I define health law broadly to encompass the law of health care financing and delivery as well as public health law, which concerns the state’s authority and obli- cians and other stakeholders with interests in the health care system],” with “fairness . . . typically . . . articulated as access to care largely on the basis of medical need, high quality of care, and respect for patient autonomy and dignity” and the rise of “market competition” (as an alternative to the modestly egalitarian social contract paradigm), in which the role of law “is to ensure that choices about health insurance and health services are made by individuals based on their own financial resources (assuming them to be above some specified minimum), and . . . to eliminate as much as possible hidden ‘cross-subsidies.’ ”); cf. Einer Elhauge, Allo- cating Health Care Morally, 82 CAL. L. REV. 1449 (1994) (describing four competing health law paradigms, all of which focus on access to health care and rationing of health care resources). 15 See SRIDHAR VENKATAPURAM, HEALTH JUSTICE (2011); SHLOMI SEGALL, HEALTH, LUCK, AND JUSTICE (2010); JENNIFER PRAH RUGER, HEALTH AND SOCIAL JUSTICE (2009); NOR- MAN DANIELS, JUST HEALTH: MEETING HEALTH NEEDS FAIRLY (2008); MADISON POWERS & RUTH FADEN, SOCIAL JUSTICE: THE MORAL FOUNDATIONS OF PUBLIC HEALTH AND HEALTH POLICY (2006). Social determinants of health are conditions in the environments in which people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks. Conditions (e.g., social, eco- nomic, and physical) in these various environments and settings (e.g., school, church, workplace, and neighborhood) have been referred to as “place.” In addition to the more material attributes of “place,” the patterns of social engagement and sense of security and well-being are also affected by where people live. Resources that enhance quality of life can have a significant influence on population health outcomes. Examples of these resources include safe and affordable housing, access to education, public safety, availability of healthy foods, local emergency/health ser- vices, and environments free of life-threatening toxins. Social Determinants of Health, HEALTHYPEOPLE.GOV, available at http://www.healthypeople .gov/2020/topicsobjectives2020/overview.aspx?topicid=39#five (last visited Sept. 18, 2014) (describing the Social Determinants of Health as a new topic for the Healthy People 2020 initiative whereby the U.S. Department of Health and Human Services identifies ten-year goals and objectives for health promotion and disease prevention); see also World Conference on Social Determinants of Health, Rio Political Declaration on Social Determinants of Health, WORLD HEALTH ORG. (October 2011), http://www.who.int/sdhconference/declaration/Rio_po litical_declaration.pdf?ua=1 (“Health inequities arise from the societal conditions in which people are born, grow, live, work and age, referred to as social determinants of health. These include early years’ experiences, education, economic status, employment and decent work, housing and environment, and effective systems of preventing and treating ill health.”) 16 See note 14, supra. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 6 9-OCT-14 12:08 52 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 gation to assure healthy living conditions.17 I describe social justice as a communitarian approach (in its emphasis on collective problems and col- lective problem-solving) to ensuring the essential conditions for human well-being, including redistribution of social and economic goods and recognition of all people as equal participants in social and political life. Rather than merely adopting social justice as the “core value” of public health as Beauchamp and others have done,18 I argue that social justice is emerging as a core value of health law and policy writ large. I suggest that the convergence of three distinct social movements (environmental justice, reproductive justice, and food justice) on health disparities as a central focus; the growing prominence of health dispari- ties as a focus of health reform efforts; the recent boom in “health and social justice” monographs by political philosophers and ethicists; and the growing emphasis on social consciousness (as opposed to distinctly individualistic values like patient autonomy) in health law scholarship might together indicate the beginnings of a loosely defined “health jus- tice” movement. Bearing in mind that this movement—if it can even be described as such—is in its infancy, I sketch out the basic contours of its potential influence on health law scholarship, advocacy, and reform by examining the use of law as a tool for reducing health disparities through the health justice lens. This Article proceeds in Part I with an exploration of the social jus- tice framework and its manifestation in three ongoing movements that focus on health disparities—environmental justice, reproductive justice, and food justice. Part II describes the health law toolkit for reducing health disparities by ensuring access to affordable, high-quality health care, encouraging healthier behaviors, and creating healthier living con- ditions. Part III draws on the social justice framework described in Part 17 Public health law is commonly treated as a distinct sub-field within health law. It is defined as the study of the legal powers and duties of the state to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of indi- viduals for the common good. LAWRENCE O. GOSTIN & LINDSAY F. WILEY, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT (3d ed. forthcoming 2015) (manuscript on file with author). Public health law is distinguished by its population orientation and prevention focus, with an emphasis on “upstream” interven- tions to prevent disease by encouraging healthier behaviors and creating healthier communities rather than “downstream” health care interventions. 18 Lawrence O. Gostin & Madison Powers, What Does Social Justice Require for the Public’s Health: Public Health Ethics and Policy Imperatives, 25 HEALTH AFF. 1053, 1053 (2006) (“Justice is viewed as so central to the mission of public health that it has been de- scribed as the field’s core value.”); cf. Sage, supra note 10, at 519 (“[P]ublic health law repre- R sents the paradigm case for a regulatory, collective approach to health policy, but has been marginalized both legally and financially compared with the diagnosis and treatment of indi- vidual patients.”). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 7 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 53 I, as well as the recent writings of ethicists and political philosophers on health and social justice, to assess the health disparities interventions de- scribed in Part II. I argue that the nascent health justice framework sug- gests three commitments for the use of law as a tool for reducing health disparities: First, to a broad scope of inquiry and action that puts access to health care in its place as one among many social determinants of health. Second, to collective responsibility for creating healthier com- munities and probing inquiry into the effects of social and cultural bias on the design and implementation of measures to reduce health dispari- ties. And third, to collective action grounded in community engagement and participatory parity. I do not claim that the social justice framework offers definitive answers to the fraught questions permeating current health law debates. I highlight tensions within the social justice framework, and between the social justice framework and the nascent health justice movement. These tensions illustrate, rather than undermine, the power of viewing health law as social justice. In sketching out the potential influence of health justice as a framework for legal scholarship, advocacy, and reform, I seek to raise important questions that are ripe for future inquiry within and beyond the field of health law. I. THE SOCIAL JUSTICE FRAMEWORK Three recent social movements—environmental justice, reproduc- tive justice, and food justice—have adopted health disparities as a central focus and offer valuable lessons for health law scholarship, advocacy, and reform. Each has emerged as a critique from within a progressive project that preceded it. The environmental justice movement originated as a civil-rights based attack on the process and outcomes of environ- mental protection. The reproductive justice movement began as a cri- tique by women of color working from within the pro-choice movement. And the food justice movement emerged in response to concerns about elitism in the alternative (fresh/unprocessed/healthy/local/etc.) food movement. In each case, the response has involved particular attention to the wide-ranging impacts of income inequality and white privilege, with eventual expansion to address other issues of bias and structural advantage such as ableism,19 privileged gender expression,20 hetero- 19 See, e.g., Valerie Ann Johnson, Bringing Together Feminist Disability Studies and Environmental Justice, CTR. FOR WOMEN POLICY STUDIES (Feb. 2011), http://www.centerwo menpolicy.org/programs/waxmanfiduccia/BFWFP_BringingTogetherFeministDisabilityStud iesandEnvironmentalJustice_ValerieAnnJohnso.pdf; Mia Mingus, Georgians for Choice, Dis- abled Women and Reproductive Justice, THE PRO-CHOICE PUB. EDUC. PROJECT, http://protect choice.org/article.php?id=140 (last visited Aug. 31 2014). 20 See, e.g., NEW PERSPECTIVES ON ENVIRONMENTAL JUSTICE: GENDER, SEXUALITY, AND ACTIVISM (Rachel Stein ed., 2004); Laura Nixon, The Right to (Trans) Parent: A Reproductive \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 8 9-OCT-14 12:08 54 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 normativity,21 and nativism.22 Before turning to an examination of what it means to add “justice” to the projects of environmental protection, re- productive health, or food system sustainability, I will take a moment to consider what it means to add “social” to justice. A. What is Social Justice? A 2006 United Nations report refers to social justice as “a recent and politically charged concept.”23 The choice of the term “social jus- tice” reflects “the idea that all developments relating to justice occur in society” and “the related desire to restore the comprehensive, overarch- ing concept of the term ‘social,’ which in recent times has been relegated to the status of an appendix of the economic sphere.”24 It is inherently communitarian in its attention to what is often ignored in contemporary policy debates: the social side of human nature; the responsibil- ities that must be borne by citizens, individually and col- Justice Approach to Reproductive Rights, Fertility, and Family-Building Issues Facing Trans- gender People, 20 WM. & MARY J. WOMEN & L. 73 (2013). 21 See, e.g., Alisa Wellek & Miriam Yeung, The Lesbian, Gay, Bisexual & Transgender Cmty. Ctr., Reproductive Justice and Lesbian, Gay, Bisexual & Transgender Liberation, THE PRO-CHOICE PUB. EDUC. PROJECT, http://protectchoice.org/article.php?id=135 (last visited Aug. 31, 2014); Pro-Choice Pub. Educ. Project & Lesbian, Gay, Bisexual & Transgender Cmty. Ctr., Silenced Bodies: Conversations with Gay Men, Bisexual & Transgender Persons, and Queer Women of Color on Sexual & Reproductive Health, Rights & Justice, THE CENTER 6, http://www.gaycenter.org/files/imce/docs/causesSilencedbodies.pdf. 22 See, e.g., Immigrant Power for Environmental Health and Justice, CHINESE PROGRES- SIVE ASS’N, http://www.cpasf.org/node/12 (last visited Aug. 31, 2014); Jessica Gonzales-Rojas & Aishia Glasford, Nat’l Latina Inst. for Reprod. Health, Immigrant Rights and Reproductive Justice, THE PRO-CHOICE PUB. EDUC. PROJECT, http://protectchoice.org/article.php?id=136 (last visited Aug. 31, 2014). 23 International Forum for Social Development, Nov. 2001–Nov. 2004, , Social Justice in an Open World: The Role of the United Nations 11, U.N. Doc. ST/ESA/305 (2006), availa- ble at http://www.un.org/esa/socdev/documents/ifsd/SocialJustice.pdf. “Recent” is relative of course: [T]he notion of social justice is relatively new. None of history’s great philoso- phers—not Plato or Aristotle, or Confucius or Averroes, or even Rousseau or Kant—saw the need to consider justice or the redress of injustices from a social perspective. The concept first surfaced in Western thought and political language in the wake of the industrial revolution . . . as an expression of protest against what was perceived as the capitalist exploitation of labour and as a focal point for the develop- ment of measures to improve the human condition . . . . Following the revolutions that shook Europe in the mid-1800s, social justice became a rallying cry for progres- sive thinkers and political activists . . . . By the mid-twentieth century, the concept of social justice had become central to the ideologies and programmes of virtually all the leftist and centrist political parties around the world . . . . Social justice became more clearly defined when a distinction was drawn between the social sphere and the economic sphere. Id. at 11–12. 24 Id. at 3. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 9 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 55 lectively, in a regime of rights; the fragile ecology of families and their supporting communities; the ripple ef- fects and long-term consequences of present decisions.25 Social justice is perhaps most easily understood as an alternative to “market justice.”26 A rejection of “the prevailing political consensus, whether explicitly or implicitly endorsed, . . . that it is not the responsi- bility of the state to tinker with the outcomes of a market system in which everyone is freely allowed the opportunity to buy and sell.”27 In our current political climate, this contrast between market justice and social justice risks conflation of market justice with something like “whatever political conservatives or libertarians identify as their goals” and social justice with something like “whatever political liberals or progressives identify as their goals.”28 It elides important distinctions between social justice, which emphasizes collective responsibility and action, and progressivism, which maintains a central focus on individual rights. The key tenets of progressivism—that “everyone gets a fair shot, everyone does his or her fair share, and everyone plays by the same rules”29—might be understood as setting a high bar for “free and equal opportunity,” rather than offering a true alternative to market justice. “These models of justice furnish a symbolic framework or blueprint with which to think about and react to the problems of the public, provid- ing the basic rules to classify and categorize problems of society as to whether they necessitate public and collective protection, or whether in- dividual responsibility should prevail.”30 They “mak[e] visible some conditions in society as public issues or concerns, [while] hiding, obscur- ing or concealing other conditions that might otherwise emerge as public 25 The Responsive Communitarian Platform, THE COMMUNITARIAN NETWORK, http:// communitariannetwork.org/platform (last visited Aug. 31, 2014). The platform was formu- lated by a group of “academicians and social commentators” helmed by sociologist Amitai Etzioni in 1990. Who We Are, THE COMMUNITARIAN NETWORK, http://communitariannetwork .org/who-we-are (last visited Aug. 31, 2014). 26 Beauchamp, supra note 1, at 102–08 (contrasting social justice and market justice). R 27 Andrew Bradstock, Recovering the Common Good: The Key to a Truly Prosperous Society?, 44 VICTORIA U. WELLINGTON L. REV. 319, 329 (2013). 28 See Anna E. Carpenter, The Project Model of Clinical Education: Eight Principles to Maximize Student Learning and Social Justice Impact, 20 CLINICAL L. REV. 39, 55–56 (2013). Throughout legal scholarship . . . “social justice” is a term that is commonly em- ployed but not often clearly defined [but is] typically associated with a “progressive” political and law reform agenda . . . seek[ing] to promote substantive equality and equality of opportunity, and to overcome the fact of legal, social, and political op- pression, as well as the impact of oppression. Id. at 55. 29 AL YATES & ANNE BARTLEY, PROGRESSIVE THINKING: A SYNTHESIS OF AMERICAN PROGRESSIVE VALUES, BELIEFS AND POSITIONS (2012), available at http://www.scribd.com/ doc/131793272/Progressive-Thinking. 30 Beauchamp, supra note 1, at 102. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 10 9-OCT-14 12:08 56 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 issues or problems were a different map or model of justice in hand.”31 For my purposes, the implications of each model of justice for redistribu- tive policies and spending programs are particularly important. Accord- ing to the market justice model: If some people in a society find themselves without what might be considered the essentials of life, then that is simply a consequence of the various transactions that take place within the market: provided none of these transactions is coerced . . . . We may say that those at the bottom of the heap have suffered bad luck or misfor- tune, but not injustice, and therefore the appropriate re- sponse is individual charity, not state redistribution.32 Libertarian adherents to the market justice framework have a very nar- row understanding of coercion and thus rarely support redistribution. Progressive adherents have a very broad understanding of coercion and often support redistribution, but they share a primary emphasis on “a fair distribution of opportunity.”33 In contrast, the social justice model views assurance of the essential conditions for human well-being as the legiti- mating purpose of government. In addition to redistribution, social justice is also concerned with recognition of all people as “full partners in social interaction.”34 While redistribution attacks economic inequality, recognition attacks cultural subordination. The dual goals of redistribution (which emphasizes mate- rial outcomes) and recognition (which emphasizes process, participation, respect, and identity) threaten to pull social movements in opposing di- rections. But they can and should function as complementary strains of social justice argument, allowing for advocacy strategies that combine a “cultural politics of identity” with a “social politics of equality,” promot- ing just distribution of economic and social goods rooted in participatory parity.35 The social justice framework has found expression in three recent social movements that speak to the practice and scholarship of law as a tool for addressing disparities generally and health disparities in particu- lar. Although the three movements described here are diverse in their origins and concerns, each began as a critique from within a progressive 31 Id. 32 Bradstock, supra note 27, at 329. R 33 YATES & BARTLEY, supra note 29, at 26. R 34 Nancy Fraser, Rethinking Recognition, 3 NEW LEFT REV. 107, 113 (2000). 35 Nancy Fraser, From Redistribution to Recognition?: Dilemmas of Justice in a “Post- socialist” Age, 212 NEW LEFT REV. 68, 69 (1995); see also Nancy Fraser, Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation, in NANCY FRASER & AXEL HONNETH, REDISTRIBUTION OR RECOGNITION? A POLITICAL-PHILOSOPHICAL EXCHANGE 7 (2003). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 11 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 57 reform project that preceded it. Three common themes emerge that are particularly relevant to the project of this Article36: First, each movement has rejected siloed, narrowly defined priorities in favor of a broad under- standing of the social determinants of inequality. Second, each move- ment has offered an internal critique of the influence of social and cultural biases on the aims and strategies of the progressive reform pro- ject that preceded it. Third, each movement has struggled to balance the role of experts in prioritizing and achieving substantive reforms with a commitment to community engagement and participatory parity. In ad- dition to detailing these common themes, I will highlight the relationship of each movement to health disparities. B. Environmental Justice Galvanized by controversy over the location of waste and industrial sites in predominantly black communities, the environmental justice movement emerged in the 1980s as a response to “environmental ra- cism.”37 Its focus is more expansive than that of the environmental pro- tection movement that preceded it. Posing crucial questions about “how individual events reflect broader historical and societal inequities,”38 the movement emphasizes just distribution of environmental risks and bene- fits and recognition of socially marginalized groups in related decision- making processes.39 Together, the sustainability and environmental jus- 36 My analysis of the first and second themes I identify here is heavily influenced by Dean Spade. See Keynote Address at the Columbia Journal of Gender and Law Symposium: Law Reform and Cooptation (April 2009), in 19 COLUM. J. GENDER & L. 1086, 1096 (2010) (discussing the environmental justice, reproductive justice, and food justice movements as part of an exploration of the relationship between “resistance to coercive gender norms” and “nar- ratives of citizenship and belonging that undergird colonialism and white supremacy” while noting that “[i]n each of these instances, the addition of ‘justice’ indicates a critique of nar- rower framings [in terms of individual rights to be left alone or treated equally by the state] and an analysis of the issues in question that centers racial and economic justice.”). 37 See Gerald Torres, Environmental Justice: The Legal Meaning of a Social Movement, 15 J.L. & COM. 597, 598–607 (1996) (describing the origins of the environmental justice movement as a response to “environmental racism” while also critiquing the framing in terms of “racism” as opposed to “white supremacy” or “white advantage”); Alice Kaswan, Environ- mental Justice and Environmental Law, 24 FORDHAM ENVTL. L. REV. 149, 150–51 (2013) (noting that a siting dispute over a Polychlorinated Biphenyl (PCB) disposal facility in a predominantly African-American community in North Carolina in the 1980s “was a nationally galvanizing event, sparking widespread attention to distributional, participatory, and social environmental justice.”). 38 See Kaswan, supra note 37, at 151. R 39 See GORDON WALKER, ENVIRONMENTAL JUSTICE: CONCEPTS, EVIDENCE AND POLITICS 1 (2012) (defining environmental justice very broadly to encompass “the intertwining of envi- ronment and social difference—how for some people and some social groups the environment is an intrinsic part of living a ‘good life’ of prosperity, health and well-being, while for others the environment is a source of threat and risk, and access to resources such as energy, water, and greenspace is limited or curtailed . . . [;] how some of us consume key environmental resources at the expense of others, often in distant places, and about how the power to effect \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 12 9-OCT-14 12:08 58 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 tice movements “guard against the risk of ‘tunnel vision’: one-dimen- sional environmental policymaking that fixates on a single goal . . . without considering or addressing broader implications.”40 The relationship between environmentalism and environmental jus- tice is not entirely harmonious. “Since at least the early 1990s, activists from the environmental justice movement consistently have criticized what they consider the ‘mainstream’ environmental movement’s racism, classism, and limited activist agenda . . . .”41 In their efforts to probe the influence of elitism on mainstream environmentalism, environmental jus- tice advocates also grapple with difficult questions about the appropriate role for lawyers and other experts in defining the movement’s priorities and strategies.42 They have also sought to balance the distributive and participatory commitments of social justice.43 Especially in cases where Native American tribal governments have opted to allow environmen- tally hazardous operations within their jurisdictions, legal scholars have struggled to conceptualize and operationalize the environmental justice movement’s commitment to procedural justice and self-determination for socially disadvantaged communities.44 The environmental justice framework enjoys significant influence at the federal level. A 1994 Executive Order directed all federal agencies, not merely the EPA, to incorporate the achievement of environmental justice into their missions by “identifying and addressing . . . dispropor- tionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations.”45 But commentators argue that the environ- change and influence environmental decision-making is unequally distributed . . . [; and] the way that people should be treated, the way the world should be.”). 40 Id. at 171. 41 Phaedra C. Pezzullo & Ronald Sandler, Introduction to ENVIRONMENTAL JUSTICE AND ENVIRONMENTALISM: THE SOCIAL JUSTICE CHALLENGE TO THE ENVIRONMENTAL MOVEMENT 2 (Phaedra C. Pezzullo & Ronald Sandler eds., 2007). 42 See, e.g., Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 ECOLOGY L.Q. 619 (1992) (“solutions to poor peo- ples’ environmental problems should be found by the victims of those problems, not by envi- ronmental lawyers”); Eleanor N. Metzger, Driving the Environmental Justice Movement Forward: The Need for a Paternalistic Approach, 45 CASE W. RES. L. REV. 379 (1994). 43 See Kevin Gover & Jana L. Walker, Escaping Environmental Paternalism: One Tribe’s Approach to Developing a Commercial Waste Disposal Project in Indian Country, 63 U. COLO. L. REV. 933, 942 (1992); Giancarlo Panagia, Tota Capita Tot Sententiae: An Exten- sion or Misapplication of Rawlsian Justice, 110 PENN ST. L. REV. 283, 305 (2005); POVERTY ALLEVIATION AND ENVIRONMENTAL LAW (Yves Le Bouthillier et al. eds., 2012) (exploring apparent tensions between the goals of poverty alleviation and environmental protection). 44 See, e.g., Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 ENVTL. L. 437, 472–74 (2010) (arguing that these scenarios necessitate a reconceptualization of environ- mental justice). 45 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 13 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 59 mental justice framework has been watered down as it has been inte- grated within the mainstream environmental protection project.46 Notably for my purposes, the articulation of environmental justice in terms of disproportionate “human health or environmental effects” would arguably encompass all health disparities within existing environ- mental justice efforts.47 Indeed, the Interagency Working Group created by Clinton’s Executive Order and reconvened by the Obama Administra- tion in 201048 has, at times, interpreted the “environmental” part of “en- vironmental justice” quite broadly. For example, in a description of environmental justice community outreach meetings held by the Inter- agency Working Group in 2011, Department of Health and Human Ser- vices (DHHS) officials noted that “[e]verywhere we have gone, we have heard repeated calls for attention to environmental justice, with people asking for greater access to health care, clean air and water, healthy and affordable food, community capacity building through grants and techni- cal assistance, and training to educate the health workforce about envi- ronmentally associated health conditions.”49 DHHS strategies developed pursuant to E.O. 12898 frequently ref- erence the agency’s broader efforts to increase access to health care, healthy food, and healthy living conditions, but with an emphasis on how those efforts are particularly relevant to the narrower environmental jus- tice project of “reducing the health disparities that may result from dis- proportionate exposures to environmental hazards in minority and low- income populations and Indian Tribes.”50 For example, DHHS officials emphasize national objectives in traditional environmental protection ar- eas like “outdoor air quality, surface and ground water quality, [and] toxic substances and hazardous wastes.”51 EPA officials, in turn, recognize that addressing environmental health dispari- ties through the lens of EPA is touching the tip of the iceberg in communities that experience environmental justice issues. Although EPA’s actions focus on racial/ ethnic and income differences in environmental health outcomes, they directly relate and contribute to the 46 See, e.g., Mike Ewall, Legal Tools for Environmental Equity vs. Environmental Jus- tice, 13 SUSTAINABLE DEV. L. & POL’Y 4, 4–5(2012–2013) (criticizing EPA’s watering down of the environmental justice framework). 47 Exec. Order 12,898, 59 Fed. Reg. at 7629 (emphasis added). 48 See Kaswan, supra note 37, at 153–55. R 49 J. Nadine Gracia & Howard K. Koh, Promoting Environmental Justice, 101 AM. J. PUB. HEALTH S14, S15 (2011) (emphasis added). 50 See U.S. DEP’T OF HEALTH AND HUMAN SERVICES, 2012 ENVIRONMENTAL JUSTICE STRATEGY AND IMPLEMENTATION PLAN 6 (2012), available at http://www.hhs.gov/environmen taljustice/strategy.pdf. 51 Gracia & Koh, supra note 49, at S15. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 14 9-OCT-14 12:08 60 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 broader conversation within the health sector to elimi- nate health disparities . . . . [P]opulations that experi- ence health disparities related to other social determinants of health, such as access to health care and access to healthy foods, tend to be the same populations that live in communities overburdened with environmen- tal pollution.52 The fact that federal agencies have explicitly adopted a broad-based and cross-cutting commitment to environmental justice is fortuitous for my purpose here. On the other hand, given that environmental justice began as a critique of mainstream environmental protection law, EPA responsibility for ensuring environmental justice arguably amounts to “[a]sking the fox to guard the henhouse.”53 A 1998 administrative deci- sion regarding a Title VI complaint filed with the agency’s Office of Civil Rights illustrates the pitfalls of asking an agency—whose mandate adopts a market-justice oriented conception of government’s cabined role in ensuring environmental protection—to add a thin veneer of social jus- tice to its activities. Ruling on a complaint filed against Michigan’s en- vironmental agency for permitting a steel company to build a new mill in the predominantly African-American neighborhood of Flint, Michigan, the EPA “assumed that the proposed steel mill would be in compliance with environmental laws, and held that complying with environmental laws means that there would be no ‘adverse effect’ on the community” and therefore no discriminatory effect.54 This decision and others indi- cate that, notwithstanding E.O. 12898, the breadth of the environmental justice mission is still very much in dispute within the EPA. C. Reproductive Justice The SisterSong Women of Color Reproductive Justice Collabora- tive (a network of eighty grassroots organizations) defines reproductive justice in terms of “the right to have children, not have children, and to parent the children we have in safe and healthy environments.”55 It has 52 Onyemaechi C. Nweke & Charles Lee, Achievement of Environmental Justice: Per- spectives on the Path Forward Through Collective Action to End Health Disparities, 101 AM. J. PUB. HEALTH S6, S6 (2011). 53 See Ewall, supra note 46, at 9; see also Kaswan, supra note 37 (discussing the tension R between environmental justice and dominant environmental law paradigms as one explanation for the limited impact of federal administrative environmental justice initiatives, but ultimately lauding EPA efforts under the Clinton and Obama administrations to “provide mechanisms for citizen and grassroots input”). 54 Ewall, supra note 46, at 10. R 55 Why is Reproductive Justice Important for Women of Color?, SISTER SONG, http:// www.sistersong.net/index.php?option=com_content&view=article&id=141&Itemid=81 (last visited Aug. 31, 2014). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 15 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 61 been described as a transformation of the pro-choice movement for abor- tion rights.56 “[H]ighlighting the lived experience of reproductive op- pression in communities of color,” the reproductive justice movement “represents a shift for women advocating for control of their bodies from a narrower focus on legal access and individual choice (the focus of mainstream organizations) to a broader analysis of racial, economic, cul- tural, and structural constraints on our power.”57 From its inception, the reproductive justice movement has been globally conscious and explicitly tied to the environmental justice move- ment. Although the term “reproductive justice” and the emphasis on the experiences of women of color were developed as a critique from within the U.S. pro-choice community, Loretta Ross, a key figure in the repro- ductive justice movement, traces the movement’s roots to the 1994 Inter- national Conference on Population and Development in Cairo.58 “The 1994 Conference was explicitly given a broader mandate on develop- ment issues than previous population conferences, reflecting the growing awareness that population, poverty, patterns of production and consump- tion and the environment are so closely interconnected that none of them can be considered in isolation.”59 The Programme of Action that arose out of the Cairo meeting recognized reproductive health as a human right and recognized gender equality, empowerment of women, and equal ac- cess to education for girls as sustainable development priorities.60 Schol- ars and grassroots advocates continue to identify and strengthen linkages between the reproductive justice movement and the environmental jus- tice movement that preceded it.61 56 Loretta Ross, Understanding Reproductive Justice: Transforming the Pro-Choice Movement, OFF OUR BACKS 14, no. 4, 2006, at 14. 57 SISTERSONG, supra note 55. R 58 Id. See also Joan C. Chrisler, Introduction: A Global Approach to Reproductive Jus- tice—Psychosocial, and Legal Aspects and Implications, 20 WM. & MARY J. WOMEN & L. 1 (2013). 59 International Conference on Population and Development, Cairo, Egypt, Sept. 5-13, 1994, Report of the International Conference on Population and Development, U.N. Doc. A/ CONF.171/13/Rev.1 (1995), available at http://www.unfpa.org/webdav/site/global/shared/ documents/publications/2004/icpd_eng.pdf. 60 See id. ¶ 1.1–1.15. 61 See Kristen Zimmerman & Vera Miao, Fertile Ground: Women Organizing at the Intersection of Environmental Justice and Reproductive Justice, MOVEMENT STRATEGY CTR. 6 (2009), available at http:// fundcrservices.rnovementstrategy.org/a/wp-content/uploads/Fcr- tileGround.pdf; Chinue Turner Richardson, Environmental Justice Campaigns Provide Fertile Ground for Joint Efforts with Reproductive Rights Advocates, GUTTMACHER POL. REV., Winter 2006, at 14, 17, available at http://www.guttmacher.org/pubs/gpr/09/1/gpr090114.pdf ; MOVEMENT STRATEGY CTR., EXECUTIVE SUMMARY: GENDER, ORGANIZING, AND MOVEMENT BUILDING AT THE INTERSECTION OF ENVIRONMENTAL JUSTICE AND REPRODUCTIVE JUSTICE 4 (2000), available at http://movementbuilding.movementstrategy.org/media/docs/9946_Fer- tileGround_ExecSum.pdf; Angie McCarthy, On Fertile Ground: The Environmental and Re- productive Justice Movements as a Unified Force for Reforming Toxic Chemical Regulation, \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 16 9-OCT-14 12:08 62 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 Legal scholar Robin West’s urging of “a broader political argument for reproductive justice in women’s lives that embraces, but does not center upon, rights-based claims” explores many of the insights of the reproductive justice movement.62 Her critique of Roe v. Wade and “the various ‘choice-based’ arguments put forward by the pro-choice advo- cacy community” suggests that although they have “secured for individu- als a fairly robust constitutional right to legal abortion,” they have simultaneously “ill served not only progressive politics broadly con- ceived, but also have ill served women, both narrowly in terms of our reproductive lives and needs, and more generally.”63 Progressive politics and women themselves would be better served, West argues, by “putting legal abortion in its place” in the context of a reproductive justice agenda that “seek[s] greater justice for pregnant women who choose to carry their pregnancies to term, working families, and struggling mothers.”64 Like the environmental justice movement, the reproductive justice movement has struggled over the role of lawyers and other formally edu- cated experts in defining and achieving social justice goals.65 Legal scholar Sarah London’s analysis of this issue points to the ways in which lawyers are implicated in the elitism challenged by each of the three movements discussed in this Article.66 She suggests that the reproduc- tive justice movement’s historical development as a critique from within the reproductive rights movement shapes its response to lawyers’ in- volvement. The women of color who organize the reproductive justice movement reject the lawyer-driven focus of the pro-choice movement on a narrow legal right to abortion framed in terms of privacy.67 While “[l]awyers have played a significant role in shaping the [reproductive rights] movement’s agenda, in developing its strategy and in constricting its rhetoric,” their role in the reproductive justice movement is necessa- rily more marginal in light of the “disempowering effects” of lawyer- centeredness and the government-centered strategies that lawyers tend to favor.68 SUSTAINABLE DEV. L. & POL’Y, no. 1, 2012–2013, at 20; Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 BERKELEY J. AFR.-AM. L. & POL’Y 71 (2011). 62 Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 YALE L.J. 1394, 1396–97 (2009). 63 Id. at 1396. 64 Id. at 1427. Rachel Rebouché has articulated a similar critique in her exploration of the “gap between law and practice,” of the legal right to abortion in the South African context, which “highlight[s] some of the limitations of decriminalization and liberalization agendas for those advocating on behalf of reproductive rights.” Rachel Rebouché, The Limits of Repro- ductive Rights in Improving Women’s Health, 63 ALA. L. REV. 1, 3 (2011). 65 See London, supra note 61. R 66 Id. 67 Id. at 85–88. 68 Id. at 83. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 17 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 63 Although reproductive justice advocates do not often rely explicitly on health disparities data, access to health care and healthy living condi- tions feature prominently among their priorities. Access to health care— not merely as a matter of the “right to choose” contraception or abortion, but as a matter of the general affordability, availability, and cultural ap- propriateness of a wide range of health services for women and fami- lies—is a priority issue for the movement. Additionally, advocates’ emphasis on “safe and healthy environments” for raising children en- compasses access to clean air, water, and safe and healthy food as well as health care, housing, education, employment, and other social determi- nants of health. D. Food Justice Like the reproductive justice movement, the food justice move- ment’s origins are linked to the seminal framework of the environmental justice movement. Robert Gottlieb and Anupama Joshi, authors of a re- cent book on food justice, point to a key moment when food policy scholars began to draw parallels between “environmental justice advo- cacy and the approach of some emerging community food groups.”69 There is tension within the food justice movement, however, over the centrality of economic and racial justice. “The shift toward a new lan- guage has not always been smooth” as groups seeking to reform indus- trial food production have adopted the food justice framework.70 The muddiness here may be attributable to the food justice movement’s occa- sional conflation with the alternative food movement, which journalist Michael Pollan has described as being “unified as yet by little more than the recognition that industrial food production is in need of reform be- cause its social/environmental/public health/animal welfare/gastronomic costs are too high.”71 Legal scholar Rebecca Goldberg suggests that the food justice movement might be understood as arising out of concerns that the alternative food movement is elitist.72 “[W]ith its focus on farm- ers’ markets and a do-it-yourself avoidance of processed food,” she writes, “many of the food movement’s goals do seem aimed at those with disposable income and disposable time.”73 In contrast, the food justice 69 ROBERT GOTTLIEB & ANUPAMA JOSHI, FOOD JUSTICE 4 (2010) (citing Robert Gottlieb & Andy Fisher, Community Food Security and Environmental Justice: Converging Paths To- wards Social Justice and Sustainable Communities, RACE, POVERTY & ENV’T, no. 2, 2000, at 18). 70 Id. at 7. 71 Michael Pollan, The Food Movement, Rising, N.Y. REV. BOOKS, June 10, 2010, avail- able at http://www.nybooks.com/articles/archives/2010/jun/10/food-movement-rising/. 72 Rebecca L. Goldberg, No Such Thing as a Free Lunch: Paternalism, Poverty, and Food Justice, 24 STAN. L. & POL’Y REV. 35, 48–49 (2013). 73 Id. at 49. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 18 9-OCT-14 12:08 64 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 movement “focuses on the barriers that low-income or otherwise marginalized groups face in realizing the goals of the broader food movement, such as access to fresh, unprocessed food.”74 Christopher J. Curran and Marc-Tizoc González have gone consid- erably further in centering their discussion of food justice on race.75 They suggest “that food justice be understood and practiced as interracial justice,”76 pointing to urban farming as “the latest evolution in the long struggle for interracial justice,” at least in one community.77 The story they tell about urban farmers, community organizations, and the role of government in the city of Oakland, California puts health disparities front and center: “This broad movement for food justice has arisen due to a deepening community health crisis; communities of color have long faced disproportionate rates of cancer, diabetes, and illnesses associated with lack of access to nutritious food and other forms of environmental racism.”78 As legal scholars, Curran and González advocate for the use of laws and policies (primarily at the local and state level) to support the food justice movement’s response to this crisis.79 But they are careful to note that some activists within the movement explicitly reject govern- ment intervention in favor of community activism.80 Many definitions of food justice put health in the foreground. For example, Just Food (a nonprofit organization devoted to “[b]uilding a just and sustainable food system” for New York City)81 proclaims that “[f]ood justice is communities exercising their right to grow, sell, and eat healthy food.”82 The group goes on to define “healthy” food in a way that extends beyond a narrow conception of physical human health: “Healthy food is fresh, nutritious, affordable, culturally-appropriate, and grown locally with care for the well-being of the land, workers, and ani- 74 Id. 75 Christopher J. Curran & Marc-Tizoc González, Food Justice as Interracial Justice: Urban Farmers, Community Organizations and the Role of Government in Oakland, Califor- nia, 43 U. MIAMI INTER-AM L. REV. 207, 210 (2011) (noting that “without an express commit- ment to anti-racism, and a multidimensional conceptualization of interracial justice that is grounded in Oakland’s concrete locality and history, we fear and predict that food justice efforts will likely exacerbate existing racial conflicts, as have so many prior laws and policies that are bound by colorblindness or the nascent post-racial ideology.”). 76 Id. at 209. 77 Id. at 207. 78 Id. Others have similarly pointed to the ways in which “food oppression” is a form of structural racism. See, e.g., Andrea Freeman, Fast Food: Oppression Through Poor Nutrition, 95 CAL. L. REV. 2221 (2007); Kate Meals, Nurturing the Seeds of Food Justice: Unearthing the Impact of Institutionalized Racism on Access to Healthy Food in Urban African-American Communities, 15 SCHOLAR 97 (2012). 79 See Curran & González, supra note 75, at 229–31. R 80 Id. at 230–31. 81 About Us, JUST FOOD, http://justfood.org/about-us (last visited Aug. 31, 2014). 82 Food Justice, JUST FOOD, http://justfood.org/food-justice (last visited Aug. 31, 2014). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 19 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 65 mals.”83 The group also emphasizes the benefits of “[p]eople practicing food justice” in terms of “a strong local food system, self-reliant commu- nities, and a healthy environment.”84 In other definitions, health recedes into the background as one of many concerns implicated by food sys- tems. Tim Lang and Michael Heasman have pointed to a wide range of injustices in the food system, including “the maldistribution of food, poor access to a good diet, inequities in the labour process and unfair returns for key suppliers along the food chain.”85 Gottlieb and Joshi hold that food justice seeks to “ensur[e] that the benefits and risks of where, what, and how food is grown and produced, transported and distributed, and accessed and eaten are shared fairly.”86 They describe the movement as having “the potential to link different kinds of advocates, including those concerned with health, the environment, food quality, globalization, workers’ rights and working conditions, access to fresh and affordable food, and more sustainable land use.”87 Goldberg has taken a different approach altogether, describing the food justice movement as offering a “narrative . . . regarding food in low-income communities” that she con- trasts with the anti-hunger narrative on the one hand and the public health anti-obesity narrative on the other.88 Goldberg points to the fact that scholars and lawyers are merely catching up to grass roots activists.89 “For the food justice movement, this grassroots activism generally takes the form of not-for-profit organi- zations that work to give low-income neighborhoods access to the types of food that are prized by the broader food movement—fresh, whole food that is as divorced as possible from industrial production.”90 She points out that “[s]uch groups . . . almost never speak in terms of obesity, though some commentators see that as one underlying motivator. They speak instead about rights, equality, community empowerment, cultural appropriateness, and, of course, justice.”91 II. LAW AS A TOOL FOR REDUCING HEALTH DISPARITIES The interrelated social justice movements described in Part I have all focused to some extent on reducing health disparities. While few dis- 83 Id. 84 Id. 85 TIM LANG & MICHAEL HEASMAN, FOOD WARS: THE GLOBAL BATTLE FOR MOUTHS, MINDS AND MARKETS 8 (2004). 86 GOTTLIEB & JOSHI, supra note 69, at 6. R 87 Id. at 5. 88 Goldberg, supra note 72, at 40–55. R 89 Goldberg, supra note 72, at 50 (quoting Gerald Torres, Environmental Justice: The R Legal Meaning of a Social Movement, 15 J.L. & COM. 597, 601 (1996)). 90 Id. at 50. 91 Id. at 50–51. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 20 9-OCT-14 12:08 66 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 pute this basic goal, lawmakers, scholars, and the general public are deeply divided over the most appropriate means for achieving it. Sharp disagreement over our increasingly collective approach to financing health care is spilling over into a national conversation about individual versus collective responsibility for health in which social and cultural biases are undeniably in evidence.92 While conservatives lambast the Obama administration for expanding Medicaid eligibility beyond the “deserving” poor, progressives argue that the administration is undermin- ing its own health reform goals by gutting legal protections for individual Medicaid recipients and providers.93 Anti-hunger groups are clashing with public health advocates over proposals to restrict the use of nutrition assistance benefits to purchase unhealthy food and beverage products.94 Nutrition and public health advocates have suggested that the opposition of some civil rights groups to anti-obesity regulations can be explained away by their financial ties to the soda industry.95 Before sketching out how the tension between individual and col- lective responsibility for health can be productively and rigorously ex- amined through a social justice lens in Part III, I will provide an overview of the legal toolkit for reducing health disparities. Policymak- ers at every level of government are developing and implementing a di- verse array of law and policy interventions for improving health generally and reducing health disparities in particular. Ensuring more equitable access to health care has been the primary focus of these efforts at the federal level. Recognizing that access to medical care is far from a complete response to health disparities, state and local governments have pioneered innovative approaches for encouraging healthier behaviors and creating healthier communities. Some of these efforts explicitly target low-income or minority communities. Most are universally applicable, but have a disparate impact on the poor or other socially disadvantaged groups (whether by design or incidentally). My aim in this Part is to make the case for health law’s increasing emphasis on access to health care and healthy living conditions, while also highlighting the many ten- sions generated by this new focus. 92 See Janet L. Dolgin & Katherine R. Dieterich, Weighing Status: Obesity, Class, and Health Reform, 89 OR. L. REV. 1113 (2011); Dayna Bowen Matthew, The Social Psychology of Limiting Healthcare Benefits for Undocumented Immigrants—Moving Beyond Race, Class, and Nativism, 10 HOUS. J. HEALTH L. & POL’Y 201 (2010); Lindsay F. Wiley, Access to Health Care as an Incentive for Healthy Behavior? Assessing the Affordable Care Act’s Per- sonal Responsibility for Wellness Reforms, 11 IND. HEALTH L. REV. 641 (2014). 93 See Brietta R. Clark, Medicaid Access, Rate Setting, and Payment Suits: How the Obama Administration is Undermining Its Own Health Reform Goals, 55 HOW. L.J. 771 (2012). 94 See infra Part II.B. 95 See infra Part II.C. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 21 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 67 A. Ensuring Access to Affordable, High-Quality Health Care Universal access to health care has been the subject of intense polit- ical debate in the United States for more than a hundred years. While many other industrialized countries adopted compulsory private insur- ance systems or universal public insurance, U.S. progressives struggled to eke out even the most modest reforms.96 High-profile federal propos- als were defeated during the Progressive Era at the turn of the twentieth century and again during the New Deal of the 1930s.97 Eventually, Medicare (for the elderly and disabled) and Medicaid (for carefully de- lineated categories of the “deserving” poor) were created as part of the War on Poverty of the 1960s.98 Since the initiation of these programs, there have been many (mostly unsuccessful) efforts to expand eligibility, including proposals to adopt “Medicare for all” as a form of single-payer health care. But, as legal scholars Janet Dolgin and Katherine Dieterich note, [in our] competitive and uncertain socioeconomic set- ting, large groups of Americans—especially those strug- gling to sustain middle-class status—have long feared that expanding health care coverage and extending it to larger groups of people will blur the boundaries between those at the lower reaches of the middle class and those even less well-off. The fear has not generally been di- rectly or expressly acknowledged.99 In addition to bringing about a major expansion of health care cov- erage for groups who were not well served by the private employer- based system, the establishment of publically financed health care pro- grams (particularly Medicare) gave the federal government powerful in- fluence over the organization of the health care delivery system.100 The Johnson administration took advantage of the infusion of federal money into the health care system, coupled with Title VI’s prohibition on dis- crimination by recipients of federal funding, to desegregate American hospitals as a condition of participation in Medicare.101 But this impres- 96 See Beatrix Hoffman, Health Care Reform and Social Movements in the United States, 93 AM. J. PUB. HEALTH 75 (2003). 97 See id. at 76. 98 See id. at 77. 99 Dolgin & Dieterich, supra note 92, at 1116; see also Ed Sparer, Gordian Knots: The R Situation of Health Care Advocacy for the Poor Today, 15 CLEARINGHOUSE REV. 1 (1981) (describing Medicaid and other progressive reform efforts as pitting the working class against the very poor and calling for legal services advocates to use health law as a means to unite the poor and working poor under a shared social cause). 100 See ROBERT I. FIELD, MOTHER OF INVENTION: HOW THE GOVERNMENT CREATED “FREE MARKET” HEALTHCARE (2013). 101 Watson, Section 1557, supra note 11, at 865. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 22 9-OCT-14 12:08 68 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 sive effort left behind considerable racial segregation in nursing homes and physician practices that persists to this day.102 Explicit, implicit, and structural biases continue to shape the health care experiences of racial and ethnic minorities and other socially and economically disadvantaged people. People of color, people with disabilities, and people with limited means are less likely to have health insurance coverage and less likely to receive needed medical care even if they do have coverage.103 The qual- ity of care that they receive tends to be lower, they are subject to higher rates of medical error, and their health outcomes suffer as a result.104 The misfit between the civil rights paradigm of assigning blame to individual perpetrators of discrimination and the structural nature of health care disparities has hampered the effectiveness of civil rights laws in this context. “[D]isparity issues are complex and may be deeply em- bedded in providers’ actions and patients’ decisions, as well as in institu- tional policies and practices. Given this genesis, many disparities are unlikely to be suitable to the approach required by civil rights laws.”105 Health law regulations aimed at improving access and quality for all without explicitly targeting historically disadvantaged groups gradually came to be seen as a more promising avenue for reducing disparities.106 In the 1980s and 1990s, health care providers and private health plans were subjected to considerable regulation aimed at curtailing widely reviled practices like patient dumping and exclusion of coverage for pre-existing conditions. The Emergency Medical Treatment and La- bor Act of 1986107 (EMTALA) required that hospitals operating emer- gency departments and accepting federal Medicare reimbursement to provide screening and stabilizing treatment for emergency medical con- ditions to all patients who come to the emergency room, regardless of ability to pay.108 EMTALA created a safety net of last resort,109 obligat- 102 Id. 103 See Ctrs. for Disease Control and Prevention, supra note 2, at 3. R 104 Id. 105 SIDNEY WATSON, THE COMMONWEALTH FUND, EQUITY MEASURES AND SYSTEMS RE- FORM AS TOOLS FOR REDUCING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE 3 (2005). 106 Id. (“The adoption of systems reform, which moves disparity-reduction efforts from the civil rights arena into the world of health care quality regulation, may ease this limitation.”). 107 42 U.S.C. § 1395dd (2013). 108 See W. David Koeninger, The Statute Whose Name We Dare Not Speak: EMTALA and the Affordable Care Act, 16 J. RACE, GENDER & JUST. 139 (2013); see also Karen H. Rothenberg, Who Cares?: The Evolution of the Legal Duty to Provide Emergency Care, 26 HOUS. L. REV. 21 (1989). 109 The Affordable Care Act is expected to achieve major gains in health care coverage, but there will still be around 30 million uninsured after full implementation. See Rachel Nardin et al., The Uninsured After Implementation of the Affordable Care Act: A Demographic and Geographic Analysis, HEALTH AFFAIRS BLOG (June 6, 2013), http://healthaffairs.org/blog/ 2013/06/06/the-uninsured-after-implementation-of-the-affordable-care-act-a-demographic- \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 23 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 69 ing health care providers to provide treatment in cases where they deter- mine that a patient’s symptoms are acute and severe enough “that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual . . . in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”110 In addition to the emergency care provided pursuant to EMTALA, more routine charity care for those who lack sufficient health insurance coverage is sometimes provided by nonprofit hospitals free of charge or at a reduced price. Charity care requirements were attached to federal funding under the 1946 Hill Burton Act,111 and have been incorporated into some community benefit requirements attached to the tax-exempt status of nonprofit hospitals. Community benefit requirements at the state and federal level have been made somewhat more stringent in re- cent years,112 but the care provided pursuant to these requirements is negligible compared to community needs—to the extent that they might fairly be characterized as largely symbolic. The Health Insurance Portability and Affordability Act of 1996113 (HIPAA) prohibited private employer-based health plans from denying coverage or imposing differential terms on individuals based on health- related factors. It also sharply limited the exclusion of coverage for pre- existing conditions. Combined with COBRA’s provision for temporary extensions of coverage, HIPAA’s portability regulations provided con- siderable protection for individuals and families who rely on employer- based coverage. Many states also adopted regulations curtailing private health plan managed care practices like utilization review, limited pro- vider networks, and provider payment arrangements that create incen- tives for reducing care.114 HIPAA and COBRA helped those who receive health insurance as a benefit of employment, state laws provided some additional protections to those with private health insurance, and EMTALA provided for lim- ited emergency care regardless of insurance status, but millions of Amer- and-geographic-analysis/. As a result, the last-resort safety net of mandated emergency care continues to be quite relevant to health care access. 110 42 U.S.C. § 1395dd(e)(1)(A) (2013). 111 The Hospital Survey and Construction Act of 1946, P.L. 79-725, (commonly known as the Hill-Burton Act) was enacted to provide federal financial assistance for the planning, construction, and improvement of health care facilities through grants and guaranteed loans. 112 See MARTHA H. SOMERVILLE ET AL., HOSPITAL COMMUNITY BENEFITS AFTER THE ACA (2013), available at http://community-wealth.org/sites/clone.community-wealth.org/ files/downloads/paper-somerville-et-al-Hilltop.pdf. 113 29 U.S.C. §§ 1181–1191c (1996). 114 See Frank A. Sloan & Mark A. Hall, Market Failures and the Evolution of State Managed Care Regulation, 65 L. & CONTEMP. PROBS. 169 (2002). With respect to self-in- sured health plans, these state regulations are preempted by ERISA’s deemer clause. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 24 9-OCT-14 12:08 70 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 icans still struggled to obtain affordable, high-quality health insurance and those left without it had a very difficult time accessing needed care. In 2010, the Affordable Care Act deployed a combination of ambitious private health insurance market reforms, subsidies for the purchase of private insurance, and expanded Medicaid eligibility115 to move the country closer to universal coverage.116 The ACA also included significant provisions to improve the qual- ity of health care for all Americans, with a special emphasis on reducing disparities. Although a great deal of health care quality improvement regulation takes place at the state level, federal conditions on Medicare participation also play a hugely important role and the Centers for Medi- care and Medicaid Services uses a wide range of tools to promote higher quality care, particularly in hospitals. The Affordable Care Act revital- ized these efforts and focused them more explicitly on addressing disparities.117 ACA reforms are supplemented by the Obama Administration’s ef- forts to make reduction of health disparities a priority for federal agen- cies.118 These efforts—which include development of the National Partnership for Action to End Health Disparities,119 its National Stake- holder Strategy for Achieving Health Equity,120 and the DHHS Action 115 The ACA, as drafted, would have required all states accepting Medicaid funds (which is to say, all states) to expand Medicaid eligibility to millions of uninsured Americans who were previously ineligible under federal law. The provision is particularly important for non- disabled, non-elderly adults who do not have dependent children (because they were not previ- ously eligible at any income level), as well as for many non-disabled parents and older chil- dren (who were previously covered only at extremely low income levels). In NFIB v. Sebelius, however, the Supreme Court held that the ACA’s penalty for states unwilling to expand Medi- caid was unconstitutionally coercive. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). The result is that the expansion is entirely optional for states. The expansion remains a very attractive financial proposition for states, with the federal government picking up 100% of the tab initially, phasing down to 90% over the course of a few years. In our divisive political climate, however, many Republican legislatures and governors declined the expansion as a way of staking out their opposition to the President and the ACA. The result is that eligibility now varies even more dramatically from state to state than in the past, and many poor, uninsured adults will be left without coverage. 116 Carter C. Price & Christine Eibner, For States that Opt Out of Medicaid Expansion: 3.6 Million Fewer Insured and $8.4 Billion Less in Federal Payments, 32 HEALTH AFF. 1030 (2012). 117 Majette, supra note 13, at 915. R 118 See id. at 926–27. 119 National Partnership for Action to End Health Disparities, Learn About the NPA, U.S. DEP’T. OF HEALTH AND HUMAN SERVICES (Apr. 4, 2011, 8:44 A.M.), http://minorityhealth.hhs .gov/npa/templates/browse.aspx?lvl=1&lvlid=11. 120 National Partnership for Action to End Health Disparities, National Stakeholder Strat- egy for Achieving Health Equity, U.S. DEP’T. OF HEALTH AND HUMAN SERVICES (Sept. 19, 2011, 10:35 A.M.), http://minorityhealth.hhs.gov/npa/templates/content.aspx?lvl=1&lvlid=33 &ID=286. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 25 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 71 Plan to Reduce Racial and Ethnic Health Disparities121—parallel the ad- ministration’s adoption of the environmental justice framework in many ways.122 As the bedrock of health law efforts to ensure financial access to health care for the poor, the Medicaid program warrants more detailed discussion here. The coverage provided by traditional Medicaid was de- signed specifically to meet the needs of low-income families, offering benefits like long-term care and dental care not typically covered by pri- vate health plans. Even as eligibility is expanding under the ACA, how- ever, many advocates are expressing concern that the quality of coverage is suffering from increased flexibility in federal requirements and state budget cuts.123 At the same time, the rights of Medicaid beneficiaries are being sharply curtailed by the courts.124 About one quarter of the U.S. population is covered by Medicaid or the Children’s Health Insurance Program (CHIP), a federally block- granted adjunct to Medicaid.125 Unlike Medicare, which is entirely fed- erally run, Medicaid and CHIP are funded and administered jointly by 121 DEP’T OF HEALTH AND HUMAN SERVICES, ACTION PLAN TO REDUCE RACIAL AND ETH- NIC HEALTH DISPARITIES: A NATION FREE OF DISPARITIES IN HEALTH AND HEALTH CARE (2011), available at http://minorityhealth.hhs.gov/npa/files/Plans/HHS/HHS_Plan_complete .pdf. 122 DEP’T OF HEALTH AND HUMAN SERVICES, REPORT TO CONGRESS ON MINORITY HEALTH ACTIVITIES AS REQUIRED BY THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (P.L. 111-148), at ii, available at http://minorityhealth.hhs.gov/Assets/pdf/Checked/FINAL_ Report_to_Congress_on_Minority_Health_Activities_Nov_2013.pdf (noting that “[t]he HHS Disparities Action Plan . . . leverages other national initiatives [including] the HHS Environ- mental Justice Strategy.”). The Obama administration has linked Affordable Care Act imple- mentation (like environmental protection) to civil rights. See, e.g., Louise Radnofsky, Obama Asks African-American Churches for Help with Health Law, WALL ST. J., Aug. 26, 2013, http://blogs.wsj.com/washwire/2013/08/26/obama-asks-african-american-churches-for-help- with-health-law/?KEYWORDS=health+law; Sam Baker, Sebelius Ties Healthcare Law to Civil Rights Anniversary, THE HILL (Aug. 26, 2013), http://thehill.com/blogs/healthwatch/ health-reform-implementation/318861-sebelius-ties-healthcare-law-to-civil-rights-anniversary; David Morgan, Sebelius Seeks Civil Rights Support for U.S. Healthcare Law, REUTERS (Apr. 12, 2012), http://www.reuters.com/article/2012/04/12/us-usa-healthcare-rights-idUSBRE83B1 O820120412. 123 Nicole Huberfeld, Federalizing Medicaid, 14 U. PA. J. CONST. L. 431 (2011); Sara Rosenbaum, Medicaid at Forty: Revisiting Structure and Meaning in a Post-Deficit Reduction Act Era, 9 J. HEALTH CARE L. & POL’Y 5 (2006); Dayna Bowen Matthew, The “New Federal- ism” Approach to Medicaid, Empirical Evidence that Ceding Inherently Federal Authority to the States Harms Public Health, 90 KY. L.J. 973 (2001–2002). 124 See Brietta R. Clark, Medicaid Access, Rate Setting, and Payment Suits: How the Obama Administration Is Undermining Its Own Health Reform Goals, 55 HOW. L.J. 771 (2012). 125 Medicaid Enrollment as a Percent of Total Population, FY2010, HENRY J. KAISER FAMILY FOUNDATION (2010), http://kff.org/medicaid/state-indicator/medicaid-enrollment-as-a- of-pop/ (indicating Medicaid enrollment as of 2010 as 21% of the total U.S. population); DI- ANE ROWLAND ET AL., MEDICAID AND CHIP PAYMENT AND ACCESS COMM’N, REPORT TO THE CONGRESS ON MEDICAID AND CHIP, (June 2013), available at https://docs.google.com/viewer? a=v&pid=sites&srcid=bWFjcGFjLmdvdnxtYWNwYWN8Z3g6NWE3MTM2NWU4NjhhND \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 26 9-OCT-14 12:08 72 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 the federal government and the states. As such, they are governed by relatively broad federal guidelines that give states considerable leeway to determine the exact contours of eligibility and benefits.126 Through a series of legislative reforms and readily granted administrative waiv- ers,127 that flexibility has increased to the point where many states are now shifting a large proportion of Medicaid beneficiaries into privatized plans, complete with cost-sharing requirements and benefits that fall be- low traditional Medicaid’s generous coverage. Supporters argue that privatization and flexibility will protect the economic viability of the Medicaid program and may encourage more health care providers to ac- cept Medicaid patients. Opportunities for reform, experimentation, and advocacy on behalf of Medicaid beneficiaries are uniquely shaped by the program’s joint federal-state administrative structure. Federal guidelines may constrain state and local authorities interested in pioneering reforms. In recent years, however, DHHS has granted waiver requests quite liberally to al- low states to experiment with incentives to reward patient compliance and other healthy behaviors. Citing health disparities, West Virginia, Florida, and Idaho created incentive-based “wellness programs” in the mid-2000s.128 A recent evaluation of these programs found that they had little to no impact on improving health behaviors or outcomes for Medi- caid beneficiaries. Nonetheless, in late 2013, DHHS granted approval for Iowa to implement a similar program. Some progressive advocates have taken issue with incentive-based programs, arguing that they inappropriately shift costs onto low-income patients and put the onus on individuals and families to change their health behaviors without necessarily making it easier for them to do so. Particularly in the context of political controversy over the Medicaid eli- gibility expansion, the rhetoric surrounding incentive-based reforms has taken on a punitive tone. For example, the governor of Idaho has indi- cated that he would only consider expanding Medicaid eligibility if there were some provision for “requir[ing] more personal responsibility and better health outcomes.”129 The Governor’s statements indicate that he is clearly contemplating a punitive approach: VmYQ (providing enrollment numbers for 2013 that equate to 23% of the total U.S. population). 126 See Huberfeld, supra note 123, at 447–48. R 127 Section 1115 of the Social Security Act gives the DHHS Secretary authority to waive regulations with respect to approved experimental, pilot, or demonstration projects. With a § 1115 waiver, a state may develop and implement new approaches to coverage that would otherwise by prohibited under federal law. Id. 128 See Wiley, supra note 92. R 129 Audrey Dutton, Idaho Gov. Otter Wants More Personal Accountability in Medicaid, IDAHO STATESMAN, May 30, 2013, http://www.idahostatesman.com/2013/05/30/2595854/car rots-and-sticks-for-medicaid.html. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 27 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 73 If you’re smoking, you gotta quit smoking. . . and if you don’t quit smoking, some part of the benefit, or all of it, goes away. If you’ve got a history of diabetes in your family, and you’re told to change a certain lifestyle, and you don’t do it, then you don’t get [benefits] . . . anymore.130 Enforcement of federal spending program regulations can be quite weak and the interests of beneficiaries are sometimes treated as collateral to the power plays between the federal government and the states. The courts have approached these programs like quasi-contractual agree- ments between the federal government as funder and the states as admin- istrators. The penalty for noncompliance with federal conditions on acceptance and use of the funds is typically revocation of the funds. In the case of Medicaid, the only enforcement tool available to the federal agency is total revocation—a blunt instrument that has occasionally been threatened, but never deployed. Historically, private advocates have played an important role in en- forcing federal guidelines.131 But Medicaid beneficiaries seeking to liti- gate against states to ensure compliance with federal law are facing ever- mounting legal obstacles. For example, federal Medicaid law mandates that states must establish reimbursement rates for doctors and other health care providers that are adequate to ensure that Medicaid recipi- ents’ access to care is comparable to that of the general population.132 This purported comparability of access is, in reality, a farce. But when patients and health care providers have sought to enforce this and other federal rules against states, they have encountered significant legal obsta- cles.133 Initially, advocates found that § 1983 provided an avenue for 130 Id. 131 Federal litigation is a particularly important tool for Medicaid recipients because “state administrative remedies are suited more for resolving individual Medicaid eligibility or service issues than for challenging systemic agency policy or practices.” Ann B. Lever & Herbert A. Eastman, “Shake It Up in a Bag”: Strategies for Representing Beneficiaries in Medicaid Litigation, 35 ST. LOUIS U. L.J. 863, 864 (1991). For example, private parties sued the Missouri program pursuant to § 1983 and the Supremacy Clause to get azidothymidine (AZT) added to the Medicaid drug formulary for AIDS patients. Gene P. Schultz & Charles A. Parmenter, Medical Necessity, AIDS, and the Law, 9 ST. LOUIS U. PUB. L. REV. 379 (1990). 132 Additionally, the ACA provided a temporary fee-for-service reimbursement rate in- crease for physician-provided primary care services applicable in 2013 and 2014 in an effort to encourage doctors to accept Medicaid enrollees as the expansion rolls out. KAISER COMM’N ON MEDICAID AND THE UNINSURED, INCREASING MEDICAID PRIMARY CARE FEES FOR CERTAIN PHYSICIANS IN 2013 AND 2014: A PRIMER ON THE HEALTH REFORM PROVISION AND FINAL RULE (2012), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01/8397 .pdf. 133 See Ruqaiijah Yearby, Litigation, Integration & Transformation, Using Medicaid to Address Racial Inequalities in Health Care, 13 J. HEALTH CARE L. & POL’Y 325 (2010). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 28 9-OCT-14 12:08 74 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 litigation with compensatory damages available. Over time, however, the Supreme Court has tightened the standards for when a § 1983 claim may be brought to enforce Spending Clause legislation.134 Advocates also turned to the Supremacy Clause (which allows for injunctive relief, but not compensatory damages) as a basis for litigation, but that avenue may also be narrowing.135 B. Encouraging Healthier Behavior Choices Along with increasingly collective responsibility for ensuring access to health care comes renewed interest in collective responsibility for “up- stream” prevention of disease and injury as a strategy for reducing health care costs, improving the public’s health and wellbeing, and reducing health disparities. Over the last couple of decades, public health law has evolved from a narrow field focused primarily on “communicable dis- ease law”136 to the “study of the legal powers and duties of the state to assure the conditions for people to be healthy.”137 “New public health”138 differs from “old public health”139 in its expanded focus on non-communicable diseases (NCDs) such as heart disease, stroke, and diabetes and injuries, such as those caused by motor vehicle crashes, drug overdoses, and firearms. It also represents a major push beyond education and communication campaigns urging people to make health- ier choices.140 Experts and community groups have developed a host of strategies for using law and policy tools to improve health behaviors across the board, but particularly for socially and economically disadvan- taged groups. The use of law as a tool for changing health-related behaviors en- compasses long-standing measures like vaccination mandates as well as 134 Id. 135 See Steven Clark, At Risk Patients and Doctors: Why Increased Agency Enforcement and Private Causes of Action Under the Supremacy Clause are Needed to Protect Medicaid Providers and Beneficiaries, 101 KY. L.J. 183 (2012); Douglas v. Indep. Living Ctr., 132 S. Ct. 1204 (2012) (declining to decide whether Medicaid beneficiaries and providers can chal- lenge a state law in federal court on the basis that it violates the federal Medicaid Act and therefore is “preempted” by the Supremacy Clause of the U.S. Constitution, on the grounds that the issue should be reheard by the Ninth Circuit in light of DHHS approval of the chal- lenged state law). 136 Lawrence O. Gostin, Scott Burris & Zita Lazzarini, The Law and the Public’s Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59, 62 (1999). 137 GOSTIN & WILEY, supra note 17. R 138 See Wiley, supra note 92. R 139 See Richard A. Epstein, Let the Shoemaker Stick to His Last: In Defense of the “Old” Public Health, 46 PERSPS. BIOLOGY & MED. S128 (2003). 140 See Wiley, supra note 92, at 219–25 (comparing the communication- and education- R focused “behavioral model” that dominated public health in the second half of the twentieth century with the “ecological model”—emphasizing the social, environmental, and cultural fac- tors that influence health behaviors—that is the focus of new public health). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 29 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 75 more recent applications like seat-belt laws, smoking bans, and excise taxes. These measures tend to be universally applicable, but they often have a disproportionate impact on socially disadvantaged groups. Whether that disparate impact is a good thing or a bad thing can be difficult to tease out. For example, acceptance of childhood vaccinations is actually higher among low-income families than among the well-to- do.141 The protection afforded by immunization is certainly a good thing, but to the extent that wealthy parents who perceive vaccinations as risky and have the wherewithal to opt out of mandates are free-riding on herd immunity supported by the actions of lower-income parents, there may be a significant fairness problem. In another example, studies eval- uating the impact of making failure to wear a seat belt a primary offense (meaning that seat-belt use alone is a legitimate basis for a traffic stop) have found that primary enforcement is associated with a disproportion- ate increase in seat-belt use among African-Americans.142 The research- ers lauded this as a positive strategy for reducing long-standing disparities in seat-belt use (and fatality rates for motor vehicle crashes) among African-Americans. But that framing elides the deeply concern- ing reasons that primary enforcement has a particularly strong influence on black drivers and passengers.143 Indeed, civil liberties and anti-dis- crimination groups have opposed primary enforcement reforms, based on concerns about racial bias in traffic stops.144 Tobacco control laws have successfully “denormalized” smoking as a socially acceptable behavior, turning the tide against one of the leading risk factors for premature death and illness. But some advocates question whether stigmatization continues to be an appropriate strategy in light of widening social dispar- ities between people with higher incomes and more formal education (among whom smoking rates have declined most rapidly) and those with lower incomes and less formal education (who make up an increasingly disproportionate share of the 18% of Americans who are current smok- 141 Total lack of vaccination is more common among children who are non-Hispanic white, whose mothers are older and have received more formal education, and who come from households earning more than $75,000. Undervaccination—receipt of some, but not all rec- ommended vaccinations—remains a persistent problem among low-income families. P.J. Smith et al., Children Who Have Received No Vaccines: Who Are They and Where Do They Live?, 114 PEDIATRICS 187, 189 (2004). 142 Nathaniel C. Briggs et al., Seat Belt Law Enforcement and Racial Disparities in Seat Belt Use, 31 AM J. PREVENTATIVE MED. 135 (2006). 143 Id. at 139 (noting that researchers in two studies finding that primary enforcement has a disparate impact on seat belt use among African Americans “attributed findings to a percep- tion among blacks of an increased likelihood of being ticketed for seat belt law violations in primary-law states because of the potential for differential enforcement”). 144 See NAT’L HIGHWAY TRANSP. SAFETY ADMIN., U.S. DEP’T OF TRANSP., DOCU- MENTING HOW STATES RECENTLY UPGRADED TO PRIMARY SEAT BELT LAWS (2011). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 30 9-OCT-14 12:08 76 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 ers).145 These and many other examples illustrate the “[g]enuine ambiv- alence about obliterating disparities in health and socioeconomic status [that] underlies ‘prevention’ efforts.”146 Because NCDs associated with unhealthy eating habits are a pri- mary driver of death, disability, and health disparities, law and policy interventions for promoting healthy eating merit special attention here. Justice Scalia famously warned that if the government can force people to buy health insurance, there is nothing to stop it from forcing them to buy broccoli as well.147 So far, no one has seriously proposed an “eat your vegetables” mandate, but state and local governments are pursuing a wide range of strategies to make healthy choices easier and unhealthy choices harder, including subsidization of fresh produce and taxation of harmful products.148 The ACA itself includes a calorie-labeling mandate for restaurant menu items, which was first pioneered by local and state governments.149 Like tobacco taxes, “soda taxes,” whereby state and local govern- ments either impose a special tax on sugar sweetened beverages or sim- ply revoke the regular sales tax exemption that applies to other food and beverage sales, have been adopted by several state and city govern- ments.150 But the tide appears to be turning against these measures, driven by “controversy over their effectiveness, their impact on the poor, 145 See Kirsten Bell et al., Smoking, Stigma and Tobacco ‘Denormalization’: Further Re- flections on the Use of Stigma as a Public Health Tool. A Commentary on Social Science & Medicine’s Stigma, Prejudice, Discrimination and Health Special Issue, 70 SOC. SCI. & MED. 795, 795 (2010) (suggesting that “stigmatizing smoking will not ultimately help to reduce smoking prevalence amongst disadvantaged smokers — who now represent the majority of tobacco users. Rather, it is likely to exacerbate health-related inequalities by limiting smokers’ access to healthcare and inhibiting smoking cessation efforts in primary care settings”). It may also be the case that social disparities are what make the use of shame-based interventions politically feasible in the first place. See Ronald Bayer & Jennifer Stuber, Tobacco Control, Stigma, and Public Health: Rethinking the Relations, 26 AM. J. PUB. HEALTH 47, 49 (2006) (noting that states with aggressive antismoking campaigns began to “embrace a strategy of denormalization” only after “the social class composition of smokers underwent a dramatic shift downward”). 146 Dolgin & Dieterich, supra note 92, at 1139. R 147 James B. Stewart, How Broccoli Landed on Supreme Court Menu, N.Y. TIMES, June 13, 2012, at A1, available at http://www.nytimes.com/2012/06/14/business/how-broccoli-be came-a-symbol-in-the-health-care-debate.html?_r=0. 148 See Lindsay F. Wiley, Manel Kappagoda & Anne Pearson, Public Health Law: Healthy and Unhealthy Behaviors, in THE OXFORD HANDBOOK OF U.S. HEALTH LAW (Glenn Gohen, Allison Hoffman & William Sage eds., forthcoming 2014) (describing the public health law toolkit for influencing health behaviors through environmental changes). 149 Patient Protection and Affordable Care Act, Pub. L. No. 111-1448, § 4205, 124 Stat. 119, 573–576 (2010) (requiring restaurants to disclose calorie counts on menus). 150 Lawrence O. Gostin et al., Assessing Laws and Legal Authorities for Obesity Preven- tion and Control, 37 J.L. MED. & ETHICS 28, 31 (Supp. 1 2009). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 31 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 77 general aversion to increased taxes,”151 as well as a well-financed lobby- ing campaign by the beverage industry.152 The regressive nature of ex- cise taxes has been noted ruefully by public health advocates,153 but they argue that the disproportionate financial burden of these taxes on the poor is outweighed by their disproportionate benefit in addressing high consumption of tobacco, sugary drinks, and the like (and associated dis- parities in health problems like lung cancer and diabetes) among low- income and nonwhite communities. Several state and local policymakers have expressed interest in a more targeted approach: restricting the use of Supplemental Nutrition Assistance Program (SNAP, but better known as “food stamps”) benefits 151 Judith A. Monroe et al., Legal Preparedness for Obesity Prevention and Control: A Framework for Action, 37 J.L. MED. & ETHICS 15, 18 (Supp. 1 2009). 152 New soda tax proposals since 2010 have overwhelmingly met with political defeat, and some states have even repealed previously adopted taxes. Joey Peters, Soda Taxes Fizzle in Wake of Industry Lobbying, WASH. POST, Jul. 13, 2010, http://www.washingtonpost.com/ wp-dyn/content/article/2010/07/13/AR2010071303494.html; Duff Wilson & Janet Roberts, Special Report: How Washington Went Soft on Childhood Obesity, REUTERS (Apr. 27, 2012), http://www.reuters.com/article/2012/04/27/us-usa-foodlobby-idUSBRE83Q0ED20120427 (re- porting that during the past two years, each of the twenty-four states and five cities that consid- ered “soda taxes” to discourage consumption of sugary drinks has seen the efforts dropped or defeated); but see Caroline Scott-Thomas, D.C. Council Approves Soda Tax, FOOD NAVIGA- TOR USA (May 28, 2010), http://www.foodnavigator-usa.com/Regulation/D.C.-Council-ap proves-soda-tax (noting that the Washington, D.C. Council approved a measure including sweetened soft drinks in its six percent sales tax bracket in May of 2010). A new federal tax on sugar-sweetened beverages was proposed as part of health reform efforts in 2009, but the proposal was dropped after lobbying from the beverage industry. Tom Hamburger & Kim Geiger, Beverage Industry Douses Tax on Soft Drinks, L.A. TIMES, Feb. 7, 2010, http://articles .latimes.com/2010/feb/07/nation/la-na-soda-tax7-2010feb07. 153 Critics of so-called “sin taxes” point out that the taxes are regressive in that they are assessed at a fixed rate, without regard to ability to pay, and that fixed rate makes up a much larger share of income for the poor than for the wealthy. See Matthew C. Farrelly et al., The Consequences of High Cigarette Excise Taxes for Low-Income Smokers, PLOSONE (Sept. 12, 2012), http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0043838; Jendi B. Reiter, Citizens or Sinners? The Economic and Political Inequity of “Sin Taxes” on Tobacco and Alcohol Products, 29 COLUM. J.L. & SOC. PROBS. 443 (1996). Sales taxes in general are quite regressive—the poor spend an average rate of 7% of their income on sales taxes, while those with middle incomes pay a 4.6% rate and the wealthiest taxpayers pay less than 1%. For excise taxes in particular, the rates are even more regressive, with low-income households paying a share of their income that is sixteen times greater than that paid by the wealthiest. INSTITUTE ON TAXATION AND ECON. POL’Y, WHO PAYS? A DISTRIBUTIONAL ANAL- YSIS OF THE TAX SYSTEMS IN ALL 50 STATES 2 (2013). Popular support for taxes on sugary beverages declined sharply from 2010 to 2012, largely in response to heavy campaigns by industry groups that emphasized their impact on low- and middle-income communities and minorities. See 63% Oppose “Sin Taxes” on Junk Food and Soda, RASMUSSEN REPORTS (May 6, 2012), http://www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/may_ 2012/63_oppose_sin_taxes_on_junk_food_and_soda; Daniel Zingale, Gulp! The High Cost of Big Soda’s Victory, L.A. TIMES, Dec. 9, 2012, http://articles.latimes.com/2012/dec/09/opinion/ la-oe-zingale-soda-tax-campaign-funding-20121209. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 32 9-OCT-14 12:08 78 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 as an anti-obesity intervention.154 Some proposals would prohibit the use of SNAP benefits for particular items, such as sugary drinks or candy.155 Others would go farther, limiting SNAP recipients to a speci- fied list of healthy products that excludes many staples of the American diet, including meat, white potatoes, white rice, pasta, and flour tortillas.156 These proposals have prompted a significant rift between public health and nutrition advocates, who largely favor restrictions,157 and anti- hunger and poverty groups, who vehemently oppose them. Pro-restric- tion nutrition and public health advocates point to financial ties between anti-hunger groups like FRAC and the food and beverage industry, sug- 154 In June of 2013, as major cuts to SNAP were being debated in Congress, New York City Mayor Michael Bloomberg and seventeen other mayors of large cities sent a letter to House leaders urging them to allow local governments to “test and evaluate approaches limit- ing SNAP’s subsidization of products, such as sugar-sweetened beverages, that are contribut- ing to obesity.” Ralph Becker et al., SNAP Letter to House, SCRIBD (June 18, 2013), http:// www.scribd.com/doc/148590000/SNAP-Letter-to-House-6-18-13. 155 In 2004, for example, USDA denied a request from the state of Minnesota to waive federal regulations and allow the state to prohibit the purchase of candy and soda with food stamp benefits. Letter from Ollice C. Holden, Regional Administrator, Food Stamp Program, Food and Nutrition Serv., U.S. Dep’t of Agric., to Maria Gomez, Assistant Comm’r, Econ. and Cmty. Support Strategies, Minn. Dep’t of Human Services. (May 4, 2004), available at http:// heartland.org/sites/all/modules/custom/heartland_migration/files/pdfs/15364.pdf. In 2010, New York City requested a waiver to ban the use of SNAP benefits for the purchase of high- sugar, low-nutrient beverages, which USDA also denied. Memorandum from Food and Nutri- tion Serv., U.S. Dep’t of Agriculture, to Elizabeth Berlin, Exec. Deputy Comm’r, N.Y. State Office of Temporary and Disability Assistance (Aug. 19, 2011), available at http://www.food- politics.com/wp-content/uploads/SNAP-Waiver-Request-Decision.pdf. 156 In 2013, policymakers in South Carolina and Wisconsin announced plans to restrict SNAP recipients to the approved foods list used for the Special Supplemental Nutrition Pro- gram for Women, Infants, and Children (WIC). Dylan Scott, Wisconsin, South Carolina Hope to Make Food-Stamp Purchases Healthier, GOVERNING (May 7, 2013), http://www.governing .com/blogs/view/gov-should-states-limit-what-foods-are-purchased-with-food-stamps.html. The current WIC food packages restrict eligible purchases to: breakfast cereal; milk, cheese, tofu, and soy-based beverages; fruits, vegetables, and legumes; peanut butter; canned fish; whole wheat breads and other whole grains; juice; eggs; baby formula; and baby food. Eligi- ble foods within each of these categories are subject to more specific federal guidelines. For example, eligible breakfast cereals must contain minimum amounts of iron and whole grains and may not exceed maximum amounts of sugar and fat. The only eligible beverages are milk, soy milk (containing required amounts of calcium and protein and meeting specific fortifica- tion guidelines), and 100% juice (unsweetened and containing specified amounts of vitamin C). Lindsay F. Wiley, The U.S. Department of Agriculture as a Public Health Agency?: A “Health in All Policies” Case Study, 9 J. FOOD L. & POL’Y 61 (2013). 157 See AM. MED. ASS’N, MEMORIAL RESOLUTIONS 14 (June 2013), http://www.ama-assn .org/assets/meeting/2013a/a13-resolutions.pdf (resolution to “support modifying federal guide- lines for the Supplemental Nutrition Assistance Program (SNAP) to eliminate sugar-sweetened beverages and consumption of high-density caloric foods”); Michael Pollan, Farmer In Chief, N.Y. TIMES MAG., Oct. 12, 2008, at MM62, available at http://www.nytimes.com/2008/10/12/ magazine/12policy-t.html?pagewanted=all&_r=0 (“It makes no sense for government food- assistance dollars, intended to improve the nutritional health of at-risk Americans, to support the consumption of products we know to be unhealthful.”). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 33 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 79 gesting that their opposition to restrictions is insincere and should not be taken seriously.158 Anti-restriction groups point out that the food purchases of SNAP beneficiaries are, if anything, slightly healthier than those of non-participants, in spite of the difficulties that many low-in- come people have in accessing fresh and appealing produce.159 They argue that pro-restriction policymakers are simply “attacking poor peo- ple,”160 Indeed, the rhetoric of some pro-restriction lawmakers echoes Regan-era complaints about “welfare queens” driving Cadillacs and “strapping young bucks” using food stamps to buy T-bone steaks.161 In some cases SNAP restriction proposals have been made as part of broader efforts to cut down on consumption of sugary drinks and un- healthy foods for all consumers. But in many jurisdictions, policymakers who sharply oppose universally applicable food and beverage regulations have simultaneously supported special restrictions that target the poor.162 C. Creating Healthier Communities The “social-ecological” model of public health points to various strategies for facilitating healthier living through changes to our neigh- 158 MICHELE SIMON, EAT, DRINK, POLITICS, FOOD STAMPS: FOLLOW THE MONEY 12 (2012), available at http://www.eatdrinkpolitics.com/wp-content/uploads/FoodStampsFol- lowtheMoneySimon.pdf. 159 Id. 160 Mark Bittman, Regulating Our Sugar Habit, N.Y. TIMES, Feb. 26, 2012, http://opi- nionator.blogs.nytimes.com/2012/02/26/regulating-our-sugar-habit/. 161 See, e.g., Paul Krugman, Republicans and Race, N.Y. TIMES, Nov. 19, 2007, http:// www.nytimes.com/2007/11/19/opinion/19krugman.html (describing Reagan campaign speeches in southern states referencing the legendary Cadillac-driving “welfare queen” and the Food Stamp-using “strapping young buck” buying “T-bone steaks”); Katie Sanders, Ronda Storms’ Food Stamp Law Affects Cash Assistance Too, POLITIFACT FLORIDA (Feb. 10, 2012), http://www.politifact.com/florida/article/2012/feb/10/ronda-storms-food-stamp-law/ (detailing statements by the sponsor of a Florida bill to restrict the use of SNAP benefits for sugary and salty snacks and to prohibit withdrawals from cash assistance programs at strip clubs, casinos, and bars); Editorial, Food Stamp Food Police?, L.A. TIMES, Jan. 31, 2012,http://articles.la times.com/2012/jan/31/opinion/la-ed-foodstamps-20120131 (comparing the same Florida leg- islator to Marie Antoinette). 162 As a legal matter, of course, this inconsistency is explained by government’s special authority to determine how public funds are used. See, e.g.,Scott, supra 156 (quoting Wiscon- R sin State Rep. Dean Kaufert as saying that “These food stamps are supposed to go toward making sure there’s nutritious food in the cupboards for families that are struggling. That was the original intent . . . I don’t want to be big government, big nanny state, but the difference is that these are tax dollars.”). The rhetoric used illustrates how the “logic [of the private/public distinction] has obscured how law structures dependency and the distribution of life chances such that certain populations, such as welfare recipients, women, and people with disabilities are constructed as forgoing their right to privacy because they cannot meet arbitrary norms of independence that hide the forces that subsidize and support the lives of white men, high wage earners and the wealthy, and people constructed as able-bodied.” Spade, supra note 36, at R 1088. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 34 9-OCT-14 12:08 80 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 borhoods, schools, workplaces, and marketplaces.163 Like behavior-fo- cused interventions, the growing popularity of community-focused interventions reveals “the public’s interest in the question of whether and how government might influence the diets [and other health-determi- nants] of low-income communities.”164 This particular attention to the needs of the poor has potential to bring about meaningful improvements to their living conditions, but it also generates tension over concerns about fairness and cultural bias. Federal efforts in this regard have been directed at increasing the health focus of existing federal programs. For example, the Healthy, Hunger-Free Kids Act of 2010165 introduced sweeping changes to the school food environment, not only for the millions of kids receiving free or reduced meals at breakfast and lunch, but for all students who purchase food, whether in à la carte lines in the food service area, at a school store, or in vending machines. In a few fairly limited instances, however, federal legislation has reached beyond existing areas of federal involvement to nationalize approaches pioneered by state and local gov- ernments. For example, the ACA adopted a calorie-labeling mandate for restaurant menu items,166 which had been pioneered by the City of New York and several other state and local governments. The ACA also in- cluded regulations to facilitate breastfeeding in workplaces,167 and grants to fund other community-level prevention strategies.168 The community strategy has been most successful at the state and local level. Some cities have specifically targeted particular neighbor- hoods for these efforts. In 2008, for example, the Los Angeles City Council approved a moratorium on permits for any new fast food restau- rants in a thirty-two-square-mile area of the city.169 The ordinance was 163 See, e.g., KAREN GLANZ ET. AL., HEALTH BEHAVIOR AND HEALTH EDUCATION: THE- ORY, RESEARCH, AND PRACTICE 470 (2008) (“Ecological models specify that factors at multi- ple levels, often including intrapersonal, interpersonal, organizational, community, and public policy, can influence health behaviors. Concepts that cut across these levels include sociocul- tural factors and physical environments, which may apply to more than one level.”); NANCY ADLER ET AL., Inst. of Med., Building the Science for a Population Health Movement (2013) (experts “view health as the product of multiple determinants at the biologic, genetic, behav- ioral, social, and environmental levels and their interactions among individuals, communities, time, and place”). 164 Goldberg, supra note 72, at 59. R 165 Healthy, Hunger-Free Kids Act of 2010, Pub. L. No. 111-296, 124 Stat. 3183 (codi- fied in scattered sections of 7 U.S.C., 20 U.S.C, and 42 U.S.C.). 166 Patient Protection and Affordable Care Act, Pub. L. No. 111-1448, § 4205, 124 Stat. 119, 573–576 (2010) (requiring restaurants to disclose calorie counts on menus). 167 Id. at § 4207 (requiring employers to provide adequate break time and facilities for nursing mothers). 168 Id. at § 4201 (establishing community transformation grants). 169 The moratorium, adopted via an Interim Control Ordinance, applies to the South Los Angeles, Southeast Los Angeles, West Adams, Baldwin Hills, and Leimert Park community planning areas. The ordinance defines a fast food restaurant as “[a]ny establishment which \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 35 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 81 expressly intended to “address the over-concentration of [land] uses which are detrimental to the health and welfare of the people of the com- munity.”170 The designated area was purportedly selected based on data regarding its especially high concentration of fast food restaurants. But commentators have been quick to note that it also encompasses predomi- nantly low-income, minority communities with a higher incidence of obesity than the city as a whole.171 The ordinance has generated tension over the propriety of singling out socially disadvantaged groups for pa- ternalistic intervention.172 A few jurisdictions have explored similar zoning strategies,173 while others have implemented subsidies to promote the availability of healthier food marketplaces in particular neighborhoods.174 Most strategies for creating healthier communities have been broadly applicable, but with a potentially disproportionate impact on so- cially disadvantaged groups. For example, product safety and nutrition- focused regulations run the risk of disproportionately harming the poor by pricing them out of certain markets. On the other hand, there is a concern that some public health interventions—such as calorie labeling on restaurant menus or nutrition labeling on packaged foods—are prob- lematic precisely because they are less likely to be effective for consum- ers who lack formal education or the financial resources to make purchasing decisions based on factors other than price. New York City’s proposed prohibition on the sale of sugar sweet- ened beverages at food service establishments in containers larger than dispenses food for consumption on or off the premises, and which has the following character- istics: a limited menu, items prepared in advance or prepared or heated quickly, no table or- ders, and food served in disposable wrapping or containers.” L.A., Cal., Ordinance 180103 (July 29, 2008). 170 Id. 171 See Goldberg, supra note 72, at 55–56. R 172 Id. at 57 (“Writing in 2008, William Saletan accused the Los Angeles City Council of ‘depicting poor people, like children, as less capable of free choice,’ and called the original moratorium ‘a disturbingly paternalistic way of solving the problem’ of unequal food options between low-income neighborhoods and wealthier neighborhoods.”). 173 Lisa M. Feldstein, Zoning and Land Use Controls: Beyond Agriculture, 65 ME. L. REV. 467 (2013) (“Framed variously as an environmental justice, civil rights, and health equity issue, utilizing zoning to promote more equitabl[y] built environments in low-and higher-in- come neighborhoods has found broad support amongst advocates as well as public health and planning professionals.”). Many local governments have imposed zoning restrictions on fast- food establishments that are justified in terms of aesthetic values. Other have adopted restric- tions that target schoolchildren. Phoenix has banned mobile street vendors within 600 feet of schools during school hours. Detroit similarly banned the opening of new fast food restaurants within 500 feet of schools. See Paul Diller & Samantha Graff, Regulating Food Retail for Obesity Prevention: How Far Can Cities Go?, 39 J.L. MED. & ETHICS 89, 91 (2011). 174 Id. at 91. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 36 9-OCT-14 12:08 82 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 sixteen ounces175 generated enormous public controversy and was re- cently invalidated by the New York Court of Appeals on the grounds that enacting such a rule was the province of the City Council, not the Board of Health.176 Autonomy concerns about the portion rule dominated the public discourse,177 but equity concerns about its disproportionate impact on low-income people and people of color also played an important role. Among the named plaintiffs challenging the portion rule were two associations of minority-run businesses.178 The New York State Confer- ence of the National Association for the Advancement of Colored People (NAACP) and the Hispanic Federation179 filed an amicus brief arguing that the portion rule “arbitrarily discriminates against citizens and small business owners in African-American and Hispanic communities.”180 Noting that “[s]oft drinks are bought by one-third of the poorest 2 million New Yorkers, but only one-sixth of the richest 1 million,”181 the NAACP and the Federation argued that the portion rule “disproportionately af- fects freedom of choice in low-income communities,”182 and pointed to the “threatened disparate impact on minority-owned businesses.”183 Both groups have spoken strongly in favor of education-only solutions to 175 While some might classify the portion rule as a behavioral intervention, I believe it is more properly understood as a social-ecological intervention aimed at making restaurants more conducive to healthy consumption habits. 176 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, No. 134, 2014 WL 2883881 (N.Y. Ct. App. June 26, 2014). 177 To be clear, the anti-paternalism argument against the portion rule is not a legal argu- ment. Lindsay F. Wiley, Sugary Drinks, Happy Meals, Social Norms, and the Law: The Nor- mative Impact of Product Configuration Bans, 47 CONN. L. REV. __ (forthcoming 2014) draft available through http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2460866 (“In cases where a fundamental right or suspect classification is implicated, a purely paternalistic govern- ment interest may not be sufficiently compelling to justify infringement pursuant to strict scru- tiny. But there is no fundamental right to sell or purchase particular products or services in particular configurations.” (citations omitted)). 178 Named plaintiffs included a statewide coalition of Hispanic Chambers of Commerce and an association of Korean-American grocers. 179 The Hispanic Federation is “a network of nearly 100 Latino-serving organizations throughout the northeast United States. The organization’s mission is to empower and ad- vance the Hispanic community.” Brief for the New York State Conference of the NAACP & the Hispanic Federation as Amici Curiae Supporting Petitioners at 4, In re N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health and Mental Hygiene, 110 A.D.3d 1 (2013) (No. 653584/2012) [hereinafter NAACP Amici Brief]. 180 Id. at 8. 181 Id. at 3 (quoting Brian Wansink, How Bloomberg’s Soft Drink Ban Will Backfire on NYC Public Health, THE ATLANTIC (June 14, 2012), http://www.theatlantic.com/health/ archive/2012/06/how-bloombergs-soft-drink-ban-will-backfire-on-nyc-public-health/258501/). 182 Id. at 2. 183 Id. at 3; see also Hazel N. Dukes, Sugar-Sweetened Beverages Ban: Short-Sighted and Misdirected, HUFFINGTON POST (Aug. 27, 2012), http://www.huffingtonpost.com/hazel-n- dukes/ny-sodaban_b_1834816.html. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 37 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 83 the obesity crisis.184 The education-only approach has been deemed ut- terly inadequate by public health experts, but it is frequently touted by the food and beverage industries (like the tobacco, automobile, and other industries before them) seeking to shift the blame away from unhealthy products toward “personal responsibility.”185 Indeed, public health and nutrition advocates have suggested that the involvement of civil rights groups in anti-obesity policy debates has been tainted by a financial ties between civil rights groups and the food and beverage industry.186 There is widespread agreement that health disparities are troubling. But, as illustrated by the examples described here, interventions to re- duce disparities can generate considerable tensions between the goals of health promotion and social justice and between the notions of personal and collective responsibility. As our increasingly collective approach to health care financing prompts greater public interest in upstream preven- tion, these tensions are likely to grow. They warrant rigorous examina- tion from a variety of perspectives. III. HEALTH JUSTICE AS A FRAMEWORK FOR REDUCING HEALTH DISPARITIES Do the developments described in Part II suggest a “health justice” movement similar to the environmental, reproductive, and food justice movements described in Part I? Although the label “health justice” has not yet gained much traction,187 simultaneous social, lawyering, and 184 See NAACP Amici Brief, supra note 179, at 4 (pointing to the NAACP’s development R of a program called “Project HELP (Healthy Eating, Lifestyles, and Physical Activity),” which “is designed to improve the overall quality of life for African-Americans through health educa- tion, focusing on educating participants on the risk factors that lead to chronic diseases, includ- ing obesity, diabetes, hypertension, stroke, and cardiovascular disease.”). See also Jose Calderon, Obesity Demands Our Attention, FOX NEWS LATINO (July 3, 2012), http://la- tino.foxnews.com/latino/health/2012/07/03/jose-calderon-education-to-preventobesity/. 185 See Lindsay F. Wiley et al., Who’s Your Nanny? Choice, Paternalism and Public Health in the Age of Personal Responsibility, 41 J.L. MED. & ETHICS 88, 89 (2013). 186 See, e.g., Michael Grynbaum, In NAACP, Industry Gets Ally Against Soda Ban, N.Y. TIMES, Jan. 23, 2013, http://www.nytimes.com/2013/01/24/nyregion/fight-over-bloombergs- soda-ban-reaches-courtroom.html (reporting on NAACP’s close ties to big soda companies, pointing out that the amicus brief was submitted by King & Spaulding, Coca-Cola’s “long- time Atlanta law firm.” Moreover, when asked about the NAACP’s position on this issue, the state conference referred those questions to the American Beverage Association, which in turn referred questions to Coca-Cola.); Nancy Huehnergarth, How Big Soda Co-Opted the NAACP and Hispanic Federation, HUFFINGTON POST (Jan. 25, 2013), http://www.huffingtonpost.com/ nancy-huehnergarth/minorities-soda-lobby_b_2541121.html (citing donations amounting to more than $2 million to the NAACP and various state conferences over the past twenty-five years). 187 The label has been used only occasionally, most notably by a handful of advocacy groups, a law school clinic at Loyola Chicago based on the medical-legal partnership model, and Sridhar Venkatapuram, one of several political philosophers exploring the relationship between health and social justice. See VENKATAPURAM, supra note 15; The Praxis Project, R HEALTHJUSTICE, http://www.healthjustice.us/ (last visited Apr. 3, 2014) (offering “resources to \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 38 9-OCT-14 12:08 84 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 scholarly movements focusing on health disparities, the social determi- nants of health, and the relationships between health and social justice are certainly underway. In spite of the growing influence of these movements (those that are specific to health as well as those in related areas), the social justice framework is sometimes assumed, but rarely discussed in health law scholarship. Many attempts to conceptualize health law’s burgeoning commitment to reducing health disparities are unified by a dominant em- phasis on expanding access to health care through the recognition of in- dividual patient rights—an approach that may actually be counter to lessons drawn from the environmental, reproductive, and food justice movements and from the work of political philosophers and ethicists in- terested in health justice. In this Part, I sketch out the contours of the health justice lens, presenting it as a distinct alternative to the libertarian market justice of the “market competition” paradigm, but also to the pro- gressive market justice of the “patient-rights” paradigm.188 A. What Is Health Justice? The Praxis Project, which describes itself as a nonprofit intermedi- ary providing support for organizing and change work at local, regional, and national levels, has organized its work on environmental justice, food justice, and health care access, under the label of “health justice.” Praxis defines health justice broadly, with an emphasis on the social de- terminants of health, fighting cultural bias, and promoting health at the community level: A community’s health is as much the result of insti- tutional policies and practice as it is personal choice. support organizing and policy advocacy to advance health justice in your community”); Mis- sion, ACCESS WOMEN’S HEALTH JUSTICE, http://accesswhj.org/mission (last visited Apr. 3, 2014) (describing the work of a reproductive justice organization that has adopted “health justice” as part of its identity); Beazley School of Law Institute for Health Law and Policy, Health Justice Project, LOYOLA UNIVERSITY CHICAGO, http://www.luc.edu/law/centers/heal- thlaw/hjp/index.html (last visited Apr. 3, 2014) (“The Health Justice Project was founded by Professor Emily Benfer in the summer of 2010 and is a medical-legal partnership clinic be- tween Loyola University Chicago School of Law and Erie Family Health Center, a Federally Qualified Health Center that serves over 40,000 low-income patients annually. Students of law, social work, public health and medicine enrolled in the clinic engage in interprofessional collaboration to identify and address social and legal issues that negatively affect the health of low-income individuals.”). The medical-legal partnership model is part of a broader move- ment to incorporate a wide range of social services and assistance into health-care clinical settings, exemplified by the work of nonprofit organizations like Health Leads. See Our Vi- sion, HEALTH LEADS, https://healthleadsusa.org/what-we-do/our-vision/ (last visited June 23, 2014). 188 See supra note 14 and accompanying text (discussing patient rights and market com- R petition as the currently dominant health law paradigms); supra notes 26–36 and accompany- ing text (contrasting libertarian market justice with progressive market justice). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 39 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 85 Which communities have fresh, nutritious food? Where do governments allow dumping? Who is more often targeted by advertisers with unhealthy products? Which communities have state-of-the-art medical facilities? Which ones don’t? All of these factors (or social determinants) are symptoms of the bias and privilege that shape virtually every aspect of our lives. It is no secret that across nearly every indicator of health status, poor people and people of color are more likely to be sick, injured, or die prematurely . . . . It will take organizing from the ground up; social change that transforms the current sys- tems of neglect, bias, and privilege into systems—poli- cies, practices, institutions—that truly support health[y] communities for all. That’s health justice.189 In addition to growing interest in health justice among community groups, the last several years have seen an upsurge in scholarly interest among political philosophers and ethicists in “the bearing of justice on health, and the practical normative implications of the relationships be- tween health and society.”190 Sridhar Venkatapuram, Dan Beauchamp, Norman Daniels, Bruce Jennings, Madison Powers and Ruth Faden, Jen- nifer Prah Ruger, Shlomi Segall, and Kristin Voigt have explored these implications by drawing on Rawls’ theory of justice,191 the capabilities 189 The Praxis Project, supra note 187. R 190 JOHN COGGON, WHAT MAKES HEALTH PUBLIC? A CRITICAL EVALUATION OF MORAL, LEGAL, AND POLITICAL CLAIMS IN PUBLIC HEALTH 170 (2012). 191 See JOHN RAWLS, A THEORY OF JUSTICE (rev. 2d ed. 1999); JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT (2001); JOHN RAWLS, THE LAW OF PEOPLES (2001); DANIELS, supra note 15 (adopting a framework heavily influenced by Rawls). References to health in R Rawls’ own work would seem to undercut the usefulness of his theory to an examination of the mutually reinforcing relationship between poverty and ill health. Rawls has been criticized for intentionally restricting his discussion of justice to “normal” “healthy” workers and for relegat- ing “surfers” (those who are able, but unwilling to work) and “hard cases” (those whose disa- bility or ill health prevents them from working) to voluntary charity care, echoing the market justice model. In his earlier work, Rawls classified health, along with vigor, intelligence, and imagination, as “natural primary goods” based on his understanding that society had little influence over them. Eventually, he dropped the “natural” designation in response to criticism pointing out the many ways in which health and intelligence are heavily influenced by social forces. Rawls noted in passing that we have a “duty” to help people with health issues, but it cannot be covered under his conception of social justice. Mahasweta M. Banerjee, Social Work Scholars’ Representation of Rawls: A Critique, 47 J. SOC. WORK ED. 189, 199–200 (2011) (documenting key changes between the 1971 and 1999 editions of Rawls’ Theory of Justice and clarifications in Rawls’ 2001 works Justice as Fairness: A Restatement and The Law of Peoples as part of a critique of social justice-oriented social work scholars’ reliance on and misrepresentation of Rawls). Daniels “departs from Rawls by allowing and demanding that the contractors [(rational, disinterested figures whom Rawls imagines to be deciding on the principles of justice behind a veil of ignorance)] consider questions of disease and disabil- \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 40 9-OCT-14 12:08 86 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 approach of Amartya Sen and Martha Nussbaum,192 the luck egalitarian- ism approach developed by Ronald Dworkin, G.A. Cohen, and Richard Arneson,193 and a strongly communitarian approach to justice that might be understood as having roots in feminist and relational political philoso- phies.194 A discussion of the unique contributions of each of these schol- ars is beyond the scope of this Article (thankfully, given that it would also be beyond my expertise).195 But the three common themes identi- fied in the social movements discussed in Part I, above, are also evident in the work of political philosophers and ethicists on health and social justice. Their writings provide useful reference points as I translate the common commitments of environmental, reproductive, and food justice to the health justice context. As a lens for examining the role of law in reducing health dispari- ties, social justice does not provide clear answers to all questions. Rather, it reveals certain questions as particularly crucial and prompts more rigorous discussion of them. With these caveats in mind, I argue that three interrelated commitments should shape the health justice ap- ity to feature in deliberations (an intended omission on Rawls’ part).” COGGON, supra note 190, at 180. R 192 See AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999); POWERS & FADEN, supra note 15 (developing a pragmatic framework that is closely related to the capabilities approach); R RUGER, supra note 15 (developing a health capabilities approach); VENKATAPURAM, supra R note 15 (applying Sen and Nussbaum’s capabilities approach to health). Sen himself has also R written on the application of the capabilities approach to health issues. See, e.g., Amartya Sen, Why Health Equity?, in PUBLIC HEALTH, ETHICS, AND EQUITY 21 (Sudhir Anand, Fabienne Peter & Amartya Sen eds., 2004). 193 See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE (2000); G.A. Cohen, On the Cur- rency of Egalitarian Justice, 99 ETHICS 906 (1989); Richard Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUDIES 77 (1989); Richard Arneson, Against Rawlsian Equality of Opportunity, 93 PHIL. STUDIES 7 (1999); SEGALL, supra note 15 (applying the luck R egalitarianism conception of distributive justice to issues of health care and the social determi- nants of health). 194 See, e.g., DAN BEAUCHAMP, HEALTH CARE REFORM AND THE BATTLE FOR THE BODY POLITIC (1996); Dan Beauchamp, Community: The Neglected Tradition of Public Health, in NEW ETHICS FOR THE PUBLIC’S HEALTH, supra note 1, at 57; BRUCE JENNINGS, CIVIC HEALTH: R A POLITICAL THEORY OF PUBLIC HEALTH AND HEALTH POLICY (forthcoming 2014) (described by Jennings as a book on the relationship between public health and political theory and the role of grassroots participation in health policy); WILLARD GAYLIN & BRUCE JENNINGS, THE PERVERSION OF AUTONOMY: COERCION AND CONSTRAINTS IN A LIBERAL SOCIETY (2d ed. 2003); Bruce Jennings, From the Urban to the Civic: The Moral Possibilities of the City, 78 J. URBAN HEALTH 88 (2001). See COGGON, supra note 190, at 187 (linking Jennings’ communi- R tarian approach to political theory within the feminist literature). Kristin Voigt is currently developing an approach that reconciles distributive and relational justice. See Social Justice: Reconciling Distributive and Relational Perspectives, MONTREAL HEALTH EQUITY RESEARCH CONSORTIUM, http://mherc.net/projects/social-justice-reconciling-distributive-and-relational- perspectives/ (last visited Aug. 31, 2014); Kristin Voigt, Appeals to Individual Responsibility for Health: Reconsidering the Luck Egalitarianism Perspective, 22 CAMBRIDGE Q. HEALTH- CARE ETHICS 146 (2013). 195 See COGGON, supra note 190, at 164–93, for an extremely helpful review, upon which R I have relied heavily in drafting this paragraph. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 41 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 87 proach to using law to reduce health disparities: First, the health justice framework lends itself to a broad conceptualization of health law as con- cerned with all of the social determinants of health rather than remaining narrowly focused on the law of health care delivery and financing. Sec- ond, the health justice framework demands that we probe the influence of social bias and structural advantage on interventions aimed at reducing health disparities, particularly those interventions that adopt an individu- alistic, personal responsibility approach. Third, interventions to reduce health disparities should be designed and implemented in a way that maximizes community engagement, but this should not be confused with an approach that makes individualistic self-determination paramount. I will sketch out each of these proposed commitments by reference to the health justice work of ethicists and political philosophers, the social jus- tice movements described in Part I, and the health law reforms and con- troversies described in Part II. Each of these issues is ripe for further exploration in future publications. B. Broadening the Scope of Inquiry and Action: Putting Access to Health Care in Its Place Focusing on the experiences of low-income communities, commu- nities of color, and other socially and culturally marginalized groups has led the environmental, reproductive, and food justice movements to broaden the scope of the progressive projects that preceded them: From protecting the natural environment to fighting the overlapping forms of oppression that result in an unjust distribution of environmental hazards. From a privacy-based right to choose abortion to redistribution of re- sources to protect meaningful self-determination with regard to reproduc- tion and family life. From rejection of some forms of industrial food production to an insistence that food policy can play a role in fighting class and racial oppression. In the same way, the health justice framework might function as a critique from within the progressive patient-rights focused project of en- suring access to health care. Health justice naturally expands the focus beyond access to health care to address the community conditions that play such an important role in determining health disparities. Powers and Faden “contend that it is impossible to make progress in our under- standing of the demands of justice within medical care without looking outside of medical care to public health and to the other determinants of inequalities in health.”196 Beauchamp is a bit more pointed about de- centering health care. He argues that “over-investment and over-confi- dence in curative medical services” are attributable to the market justice 196 POWERS & FADEN, supra note 15, at x. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 42 9-OCT-14 12:08 88 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 perspective and stand as “fundamental obstacles to collective action to prevent death and injury.”197 In his seminal work on health justice, Venkatapuram argues that “health is not determined just by or even largely by healthcare. It is vitally important, just as food is to someone starving, but health jus- tice . . . involves many more dimensions than the availability and distri- bution of healthcare.”198 Social epidemiologists study the causal pathways by which socio-economic status, race and ethnicity, disability, gender expression, geographic location, and other factors influence health outcomes.199 Differential access to health care services (in terms of financial access but also language access,200 geographic access,201 etc.) and differential quality of health care (in terms of discriminatory treatment decisions by individual clinicians, differential access to highly skilled health care providers, disregard for the needs of particular sub- populations in medical research,202 etc.) are certainly among those path- ways, but other pathways are equally, if not more, important. Application of this view to health policy suggests that health care is a component of the broader public health system—rather than the other way around, as many health law scholars assume. Putting access to health care in its place as one among many social determinants of health runs counter to decades of health law reform, ac- tivism, and scholarship. As Venkatapuram explains, “[F]or most of the twentieth century, policies to protect and promote health focused on clinical medical care and on personal behaviour, . . . divorcing it from its social bases.”203 Daniels links this bias to the bioethics tradition, which, since its inception “has focused heavily on . . . the dyadic relationship between doctors and patients or research subjects, or on the potential benefits and risks for those individuals that can arise from new [medical] 197 BEAUCHAMP, supra note 1, at 104. R 198 VENKATAPURAM, supra note 15, at 16. R 199 See, e.g., MARMOT & WILKINSON, supra note 8; SOCIAL EPIDEMIOLOGY (Lisa F. Berk- R man & Ichiro Kawachi eds., 2000); Michael G. Marmot, Understanding Social Inequalities in Health, 46 PERSP. BIOLOGY & MED. S160 (2003); JULIE G. CWIKEL, SOCIAL EPIDEMIOLOGY: STRATEGIES FOR PUBLIC HEALTH ACTIVISM (2006). 200 See, e.g., Joel Teitelbaum, Lara Cartwright-Smith & Sara Rosenbaum, Translating Rights into Access: Language Access and the Affordable Care Act, 38 AM. J.L. & MED. 348 (2012). 201 See, e.g., Michele Goodwin, Race & Urban Health: Confronting a New Frontier, 5 DEPAUL J. HEALTH CARE L. 181 (2002); Brietta R. Clark, Hospital Flight from Minority Com- munities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare, 9 DEPAUL J. HEALTH CARE L. 1023 (2005). 202 See, e.g., Lisa C. Ikemoto, Bioprivilege, 42 WASH. U. J.L. & POL’Y 61 (2013); Vernel- lia R. Randall, Inequality in Health Care Is Killing African-Americans, 36 HUMAN RIGHTS 20 (2009); Vernellia R. Randall, Eliminating Racial Discrimination in Health Care: A Call for State Health Care Anti-Discrimination Law, 10 DEPAUL J. HEALTH CARE L. 1 (2006). 203 VENKATAPURAM, supra note 15, at 11. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 43 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 89 technologies.”204 Health law scholar Bill Sage adds the traditional view of government regulation as a complement to private legal claims; politi- cal preferences for policies that save identifiable rather than statistical lives; and the rise of health consumerism as a frame for health reform as sources of health law’s relational bias.205 Health law has struggled to define itself as a field,206 and many scholars essentially conflate it with the law of health care delivery and financing.207 The law of public health—“what we, as a society, do col- lectively to assure the conditions for people to be healthy”208—has gen- erally been relegated to a sub-topic of health law, when it is given any consideration at all.209 The environmental justice movement’s emphasis on social determinants of environmental health disparities; the reproduc- tive justice movement’s emphasis on social determinants of maternal, child, and family health; and the food justice movement’s emphasis on access to healthy food as a social determinant of health are already 204 DANIELS, supra note 15, at 2. Daniels began by writing extensively on “the social R function of health care, broadly construed to include traditional public health and medicine.” See NORMAN DANIELS, JUST HEALTH CARE (1985). Just Health, which he represents as a sequel to Just Health Care, is his effort to “seek answers to a broader set of questions, rectify- ing what he describes as his previous “failure to understand the full dimensions of a population view.” Id. Other influential political philosophers writing about health and social justice have maintained a dominant focus on access to affordable, high-quality health care. See, e.g., RUGER, supra note 15; SEGALL, supra note 15. R 205 Sage, supra note 10, at 501–10. R 206 See Mark A. Hall, The History and Future of Health Care Law: An Essentialist View, 41 WAKE FOREST L. REV. 347 (2006); Einer R. Elhauge, Can Health Law Become a Coherent Field of Law?, 41 WAKE FOREST L. REV. 365 (2006); Henry T. Greely, Some Thoughts on Academic Health Law, 41 WAKE FOREST L. REV. 391 (2006); Theodore W. Ruger, Health Law’s Coherence Anxiety, 96 GEO. L.J. 625 (2008). 207 See, e.g., Elhauge, supra note 206, at 370 (treating “health” as synonymous with R “health care”); Greely’s initial definition of health law is more expansive: I believe health law should be defined very loosely, as encompassing all legal and public policy issues involving the provision of health care (medical or otherwise) or health status. Importantly, this includes policy questions about what the laws or, more broadly, the non-legal rules or standards as they affect health care should be and not just what they are. Its center, to me, includes issues of access to health care, assurance of health care quality, and the relationships between patients and health care providers. But it also extends to issues of drug and medical device regulation, bioethics, biomedical research, mental health, and (I would argue) disability discrim- ination. I would also extend it to public health issues, from infectious disease to addiction to obesity, although even I get nervous about extending the definition to include some issues I think are legitimate public health issues, such as automobile accidents or crime. Greely, supra note 206, at 392. After this initial breadth, however, Greely’s discussion largely R conflates health with health care or medicine. Id. 208 COMM’N FOR THE STUDY OF THE FUTURE OF PUB. HEALTH, INST. OF MED., THE FU- TURE OF PUBLIC Health 19 (1988). 209 See Greely, supra note 206, at 392; Sage, supra note 10, at 519 (“[P]ublic health R law . . . has been marginalized both legally and financially compared with the diagnosis and treatment of individual patients.”). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 44 9-OCT-14 12:08 90 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 broadening the focus of some advocacy groups that target health dispari- ties. But most health law scholars and many advocacy groups continue to focus almost exclusively on health care access. It is not surprising, then, that discussions of health disparities in the health law literature have largely shared this focus. Three recent articles by progressive health law scholars who discuss health law as a tool for reducing disparities by drawing parallels between health law and other socially conscious fields of law, are illustrative. Sidney Watson’s work on the relationship between health law and civil rights law argues that “provisions expanding access to affordable health insurance offer a critical tool to improve minority access to health insur- ance and reduce inequities both in the health care system and among communities.”210 Jessica Roberts frames her work on health law as disa- bility rights law as addressing health disparities, but her focus is similarly dominated by access to high-quality health care responsive to the needs of people with disabilities.211 In assessing the ACA in light of global health and human rights norms, Gwendolyn Majette does discuss the so- cial determinants of health beyond health care access212 and acknowl- edges that elimination of health care disparities is a “complex problem demanding a multifaceted solution.” However, she considers public 210 Watson, Section 1557, supra note 12, at 855. 211 Roberts, supra note 12. Roberts purports to address public health issues in two brief R sections but her discussion barely scratches the surface. She rightly points out that federal public health surveillance and research activities have historically excluded health disparities among people with disabilities as a category of interest—a bias that the ACA attempts to correct. See Roberts, supra note 12, at 1997–99, 2026–28. But her interest in this issue is R largely limited to the “lack of good, reliable data on disability and health-care access” that has resulted from past omission, and the ACA’s recognition of “people with disabilities as a popu- lation with its own specific health-care needs.” Id. at 1999, 2027. 212 See Majette, supra note 13, at 935. Majette references social determinants as an im- R portant focus of global health norms and the National Prevention, Health Promotion and Public Health Council (now known simply as the “National Prevention Council”) “to facilitate a health-in-all-policies approach to eliminate health disparities and improve the daily conditions in which people live, work, and play.” Other than her mention of the National Prevention Council, however, Majette’s discussion of the ACA’s attention to the social determinants of health focuses on information gathering with respect to disparities in health care access and quality. See id. at 922–23. Majette has endorsed a broader view of law as a tool for reducing health disparities in her other work, however. See Gwendolyn Roberts Majette, Global Health Law Norms: A Coherent Framework to Understand PPACA’s Approach to Eliminate Health Disparities and Address Implementation Challenges, in LAW AND GLOBAL HEALTH – CUR- RENT LEGAL ISSUES 419, 428–29 (Michael Freeman et al. eds., vol. 16, 2014); Gwendolyn Roberts Majette, PPACA and Public Health: Creating a Framework to Focus on Prevention and Wellness and Improve the Public’s Health, 39 J.L. MED. & ETHICS 366 (2011). Majette joins the call for a shift from a biomedical model to an ecologic, population-based approach as a way to significantly improve the health of the U.S. population. Id. at 367, 376 n.17. The ACA prevention provisions her article describes, however, include many that are dominated by provisions of preventive health care, as well as wellness incentive programs that adopt a per- sonal responsibility approach, which is problematic from a social justice perspective. See infra Part III.C. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 45 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 91 health, prevention, and wellness as one part of the “health care sys- tem,”213 and her recommendations for future efforts to reduce health dis- parities for people of color focus almost exclusively on eliminating disparities in health care access and quality.214 Each of these articles makes very important contributions,215 and their relatively narrow focus is completely understandable given that the statute they are analyzing is similarly focused predominantly on ensuring access to health care.216 Is it advisable, or even feasible to reframe health care access as one among many social determinants of health, rather than considering public health law and social determinants as a sub-field of health care law, as scholars typically do? To the extent that scholars have grappled with the expansion of health law and policy to address the social determinants of health at all, they have highlighted two distinct concerns. First, a con- cern that expansion of health law to address the social determinants of health poses a threat to individual liberty by categorizing personal problems (such as unhealthy eating and physical inactivity) as public concerns in an effort to legitimize improper government overreach.217 213 Majette, supra note 13, at 926. R 214 Id. at 926–35. 215 Eliminating racial, ethnic, and other social disparities in health care is an extremely important issue. INSTITUTE OF MEDICINE, UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE (2003). My point is simply that elimination of health disparities requires much more than elimination of health care disparities. See id. at 35 (“the reasons for . . . health status disparities are complex . . . . Racial and ethnic disparities in health status largely reflect differences in social, socioeconomic, and behavioral risk factors and environmental living conditions . . . . Healthcare is therefore necessary but insufficient in and of itself to redress racial and ethnic disparities in health status.”). 216 The Affordable Care Act does include significant provisions aimed at ensuring healthy living conditions and influencing health behaviors. Perhaps the most important provisions in this regard are those that provide for funding for community-level action on the social determi- nants of health, reflecting the importance of state and local—as opposed to federal—interven- tion in these areas. 217 Richard A. Epstein, In Defense of the “Old” Public Health, 69 BROOK. L. REV. 1421, 1424 (2004) (arguing that labeling health behaviors like diet, exercise, smoking, and tanning as “public health” problems triggers legal doctrines that privilege heavy handed state intervention over protection of individual rights: “[T]he case for government intervention . . . gets that extra boost of legitimacy” when framed as a public health issue”); Richard A. Epstein, Let the Shoemaker Stick to His Last: A Defense of the “Old” Public Health, 46 PERSP. IN BIOLOGY & MED. S138 (2003) (critiquing “new public health”); Richard A. Epstein, What (Not) to Do About Obesity: A Moderate Aristotelian Answer, 93 GEO. L.J. 1361 (2005); Mark A. Roth- stein, Rethinking the Meaning of Public Health, J.L. MED. & ETHICS 144, 148–49 (2002) [hereinafter Rothstein, Rethinking] (“The broad power of government to protect public health includes the authority to supersede individual liberty and property interests in the name of preserving the greater public good. It is an awesome responsibility, and therefore it cannot and must not be used indiscriminately.”); Mark A. Rothstein, The Limits of Public Health: A Re- sponse, 2 PUB. HEALTH ETHICS 84, 85 (2009) [hereinafter Rothstein, Limits] (“One of the main reasons that I support a narrow definition of public health is that public health laws give public health officials a range of coercive powers to protect the population. Unless the scope of permissible governmental action is carefully circumscribed, there is a threat to civil liberties by governmental confiscation of property, restraint on the movement of individuals, mandating of \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 46 9-OCT-14 12:08 92 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 And second, a concern that while elimination of poverty, racism, and other injustices might be laudable and appropriate governmental con- cerns, cooptation of these efforts under the banner of health is inappro- priate and possibly counterproductive.218 The first concern, which I will call the libertarian objection, is often cast by public health advocates as motivated largely by a desire to protect powerful industries from regulation and liability. Particularly “[w]hen public health advocates seek to address the root causes of non-communi- cable diseases and injuries, they put themselves on a collision course with powerful, wealthy interests that are contributing to those public health problems.”219 I have argued elsewhere, however, that legal schol- ars should engage more productively with the libertarian objection in an effort to more fully develop the basis for treating non-communicable dis- ease threats like heart disease and diabetes as public problems demand- ing collective action.220 The second concern, which I will call the progressive objection, is more rarely addressed by health law scholars and perhaps less easily dis- missed. Most of this Article is devoted to exploring the value of examin- ing health disparities through the lens of social justice. But what value is added when activists or scholars situated within the field of health law and policy discuss social injustice in terms of health disparities? Why not simply focus on the narrower areas of our expertise—health care financing and delivery or the authority of public health agencies—and leave discussion of economic and racial injustice to others? In her work on health policy and social justice, Jennifer Prah Ruger argues that it is medical examinations and similar measures.”); Mark A. Hall, The Scope and Limits of Public Health Law, 46 PERSP. IN BIOLOGY & MED. S199, S199 (2003); Roger Magnusson, Mapping the Scope and Opportunities for Public Health Law in Liberal Democracies, 35 J.L. MED. & ETHICS 571, 573 (2007) (“Debate about [the] goals and definitions [of public health law] re- flects competing claims about the boundaries for the legitimate exercise of political and ad- ministrative power.”). 218 See Hall, supra note 217, at S208 (“Beyond the public health arena, there are other R good reasons for the government to pursue the more general aims of education, taxation, regu- lation, and redistribution, but these are broader social and economic policies or they belong to legal realms other than health. Public health advocates can be commended for calling our attention to the health implications of social disparities, but health promotion should not be the primary objective of corrective measures.”); Rothstein, Rethinking, supra note 217, at 144 R (“[J]ust because war, crime, hunger, poverty, illiteracy, homelessness, and human rights abuses interfere with the health of individuals and populations does not mean that eliminating these conditions is part of the mission of public health.”); Rothstein Limits, supra note 217, at R 86 (“[C]oncerns about social justice should play a part in priority setting for public health. My point is simply that resolution of underlying socioeconomic and political problems is beyond the domain of public health.”). 219 Wiley et al., supra note 185, at 89–90. R 220 See Lindsay F. Wiley, Rethinking the New Public Health, 69 WASH. & LEE L. REV. 207 (2012). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 47 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 93 “unwise to attempt to improve health with broad non-health policies.”221 She suggests that the broad-based approaches to eliminating health dis- parities advocated by Daniels and others “cloud rather than clarify the means and ends of health policy, and diminish our ability to evaluate public policy’s impact on health.”222 The incorporation of the environmental justice movement into mainstream environmental law might serve as something of a cautionary tale with regard to the progressive objection. Initially, environmental justice lawyering and legal scholarship were largely channeled toward the use of Title VI to challenge the disparate impact of governmental decisions about environmental protection on minority groups.223 When those efforts were foreclosed by the federal executive’s unwillingness to adopt a Title VI strategy and the Supreme Court’s imposition of insur- mountable hurdles for private advocates interested in doing so, many scholars and environmental lawyers interested in environmental justice redirected their attention to strengthening environmental protection laws for everyone with the hope that this strategy would have disparate bene- fits for the socially disadvantaged.224 Arguably, the effect has been to 221 RUGER, supra note 15, at 100. Notably, Ruger and some scholars adopt a broad scope R of inquiry when addressing global health disparities, while tending to narrow their focus on health care when addressing disparities in the U.S. context. See, e.g., Jennifer Prah Ruger, Normative Foundations of Global Health Law, 96 GEO. L.J. 423 (2008) (“extending [Ruger’s theory of health and social justice] in evaluating the role of international law in health” and adopting a broad focus on public health issues ranging from infectious disease control to occu- pational hazards, tobacco control, and transboundary environmental pollution). The fact that international health law instruments, unlike domestic health law statutes, focus predominantly on public health concerns rather than medical care may help explain this focus, but global health law extends beyond international instruments to encompass domestic policies in the global context. In her monograph, Ruger explicitly notes that “the relationship between health policy and other public policies affecting health” is “particularly relevant to developing coun- tries, where many determinants of health lie outside the health care system.” RUGER, supra note 15, at 99 (emphasis added). Venkatapuram takes the opposite position, arguing that “en- R suring health and longevity capabilities will require the functioning and fixing of many basic social institutions, processes and values, as well as . . . perpetual monitoring and management of relative social inequalities . . . , especially in wealthy countries.” VENKATAPURAM, supra note 15, at 152 (emphasis added). This interesting dichotomy warrants further examination. R 222 RUGER, supra note 15, at 100. Ruger suggests that evaluation of policies in “non- R health” domains like employment, housing, or education might be supplemented with “indica- tors that take their effects on health into account,” but that is not her primary concern. Id. at 100–01. 223 See Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief His- tory of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. ENVTL. L. & LITIG. 309 (1994). 224 See Mike Ewall, Legal Tools for Environmental Equity vs. Environmental Justice, 13 SUSTAINABLE DEV. L. & POL’Y 4 (2012–2013) (describing the blow to the environmental justice movement’s litigation strategy inflicted by Alexander v. Sandoval, 532 U.S. 275 (2001), and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), that effectively foreclosed private suits alleging disparate impact discrimination under Title VI and the resulting shift toward generally applicable environmental protection policies as a tool for addressing environmental injustice). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 48 9-OCT-14 12:08 94 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 neutralize environmental justice as a distinct lens, reducing it to a super- ficial reframing of the same old environmental protection goals in a way that builds broader appeal beyond the traditionally white, economically privileged groups that have prioritized them. Watson’s, Roberts’, and Majette’s contributions might be viewed as moving toward a similar approach. Each of them shepherds evidence regarding health disparities in support of traditionally progressive health law goals. Watson highlights the ACA’s anti-discrimination provision as a potential avenue for continuing the desegregation of health care begun under Title VI. Roberts sets up health law provisions aimed at ensuring access and quality for all as having a disparate benefit for people with disabilities. Majette explicitly positions herself as championing the ACA’s access and quality reforms as an important step toward American realization of individual rights and norms recognized in international law. Each author’s call for attention to the positive impacts of ACA reforms on health disparities adds value to the broader conversation among health law academics and advocates about health reform, but ulti- mately frames health disparities as a reason to support the general health law reforms championed by progressives. These are certainly crucial goals, but their narrow focus on health care access is regrettable. Environmental justice scholarship has been at its most productive when it pushes for a broader inquiry into the root causes of racial and economic disparities in the distribution of environmental risks and bene- fits that moves past citing those disparities as yet another reason for sup- porting general environmental protection. I believe health justice scholarship should similarly push for expansive and rigorous examina- tion of the causal pathways by which social disadvantage translates into poor health, and of the role of law and policy (and not merely health law and policy) in reinforcing or disrupting those pathways. Elsewhere, I have defended the broad scope of health law225 and the centering of social justice in the study of public health law as a distinct field.226 Here, my aim is different and perhaps more radical. Here, I am 225 See Wiley, supra note 220. R 226 See GOSTIN & WILEY, supra note 17. Controversy over the implications of social R epidemiology for legal advocacy and scholarship also permeate recent discussions over how public health law should be defined as a field distinct from the law of health care financing and delivery. Some legal scholars who identify themselves as working within a social determi- nants of health framework, including myself, have placed social justice at the center of their inquiries about the role of law in protecting the public’s health in general and reducing health disparities in particular. In 2000, the first edition of Lawrence Gostin’s seminal text on mod- ern public health law asserted that “[t]he prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.” LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RE- STRAINT 4 (1st ed. 2000); see also GOSTIN & WILEY, supra note 17. Other scholars, however, R have questioned the propriety of defining the field in terms of its commitment to social justice. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 49 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 95 suggesting that rather than viewing public health law as a distinct sub- field within health law, scholars interested in the use of law as a tool for reducing health disparities would do well to view access to health care as a distinct (and very important) issue within a broader social determinants framework. Rather than defending social justice as the “core value” of public health law, I am arguing—particularly in light of the ACA’s trans- formation of the Medicaid program, the private health insurance market, and the government’s role in ensuring the quality of health care and con- taining its costs as matters of public concern—that social justice is emerging as a core value of health law writ large. I am not suggesting that social justice provides an organizing principle for health law field- building efforts. Social justice cannot, by itself, define the contours of health law as a coherent field of academic inquiry. But I do believe that more rigorous development of social justice as an approach to practic- ing, studying, teaching, and writing about health law—and as an alterna- tive to the libertarian market competition paradigm and the progressive patient rights paradigm—is likely to further the development of health law as a field.227 C. Collective Responsibility: Probing the Influence of Bias on Health Disparity Interventions In addition to intentionally broadening the scope of inquiry beyond narrow, siloed concerns, the environmental, reproductive, and food jus- tice movements have adopted a skeptical stance toward elitism within the progressive projects that preceded them. Each movement has probed the influence of class and racial bias on the goals and processes adopted by progressive reformers. In doing so, the three movements have particu- larly highlighted the importance of collective responsibility for assuring healthy living conditions, rather than reinforcing individualistic assump- tions about personal responsibility for health. In the same way, health justice as a framework for reducing health disparities might dictate a preference for interventions that reflect collec- tive responsibility for health rather than individualistic interventions aimed at urging people to change their behaviors without necessarily Micah Berman has suggested that health law’s lack of a “readily apparent normative value— like environmentalism—[to use] as an organizing principle” impedes its coherence as a field. Micah L. Berman, Defining the Field of Public Health Law, 15 DEPAUL J. HEALTH CARE L. 45, 58 (2013). Berman argues that as potential organizing principles, law and economics and social justice “reflect the ideological and methodological approach of the scholar, but fail to illuminate anything unique about the study of health law.” Id. 227 In this, it would seem that Berman and I are in agreement. See Berman, note 226, at R 58 n.60 (“Many foundational fields, including Contracts, Torts, and Property, are regularly taught from either a law and economics or a social justice perspective. These perspectives bring valuable insights to the fields, but do not define them.”). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 50 9-OCT-14 12:08 96 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 making it easier for them to do so. Beauchamp describes “explanations for death and disability that ‘blame the victim’ ” as “yet another way in which the market ethic obstructs the possibilities for minimizing death and disability, and alibis the need for structural change.”228 In Beauchamp’s view, Victim-blaming misdefines structural and collective problems of the entire society as individual problems, seeing these problems as caused by the behavioral fail- ures or deficiencies of the victims. These behavioral ex- planations for public problems tend to protect the larger society and powerful interests from the burdens of col- lective action, and instead encourage attempts to change the ‘faulty’ behavior of victims.229 In the same vein, Voigt has suggested that personal responsibility inter- ventions to discourage unhealthy behaviors through individually targeted incentives and penalties are counter to the communitarian commitment of social justice.230 Our increasingly collective approach to ensuring health care access is undeniably generating increased public interest in the root causes of poor health. There is deep disagreement, however, over whether those root causes are a matter of collective responsibility or personal responsi- bility. On the one hand, social epidemiology suggests that social, eco- nomic, and environmental factors are the true “causes of the causes” of death, disease, and disability, demanding collective responsibility for regulation of commercial activities that are harmful to the public’s health and assurance of social support for basic human needs. On the other hand, measures that put the onus on individuals to change their behaviors (without necessarily making it more feasible for them to do so) are far more politically palatable. Many of the most important drivers of death, illness, and injury in the United States—cancer, heart disease, diabetes, and stroke attributable to alcohol and tobacco use, unhealthy eating, and physical inactivity—are constructed as matters of individual choice and personal responsibility. These behaviors are “divorced” from their social bases in the popular imagination and in much of health law and policy scholarship.231 In emphasizing the social determinants of health, the environmental, reproductive, and food justice movements adopt the “ecological” model of health that has come to dominate public health science and practice, 228 Beauchamp, supra note 1, at 104 R 229 Id. at 104; see also VENKATAPURAM, supra note 15, at 77 (arguing that outdated mod- R els of disease “misclassif[y] causes as beyond social action”). 230 Voigt, supra note 194. R 231 VENKATAPURAM, supra note 15, at 11. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 51 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 97 but that ecological model has not yet fully permeated into the public consciousness, particularly with respect to NCDs. Early efforts to pre- vent so-called “lifestyle diseases” were heavily influenced by the behav- ioral model of public health, which emphasized the importance of individual behavior choices (about diet, exercise, smoking, drug and al- cohol use, etc.)232 Strategies developed in the 1980s and 1990s relied almost exclusively on public education campaigns and doctor-patient counseling.233 Among scientists and environmental, reproductive, and food justice advocacy groups the individualistic behavioral model has been eclipsed by the ecological model, which places supposedly private, individual choices and risks into their social context and emphasizes structural ex- planations for health behaviors and outcomes. In this view, using to- bacco, abusing alcohol, or eating a diet high in calories and fat and low in nutrients are not merely a matter of personal choice. These behaviors are heavily influenced by environmental factors: an information environ- ment that is loaded with commercial marketing by the manufacturers and sellers of harmful products234 and marketplaces that are saturated with unhealthy options that are cheaper and more readily accessible than healthy choices.235 Not getting enough exercise is not simply a personal failure, it is a behavior influenced by a built environment that discour- ages walking for transportation and provides few opportunities for active entertainment.236 In turn, the environments that one lives and works in are dependent upon underlying social and economic factors. Poor neigh- borhoods have more fast food establishments, liquor stores, and corner stores, and fewer full-service grocery stores than middle-income neigh- borhoods.237 Children from low-income families are more likely to live in communities where public parks and playgrounds are in disrepair and 232 See Wiley, supra note 220, at 219–21 (describing the rise of the behavioral model of R health). 233 Id. 234 See, e.g., ELIZABETH S. MOORE, IT’S CHILD’S PLAY: ADVERGAMING AND THE ONLINE MARKETING OF FOOD TO CHILDREN – REPORT (2006), available at http://www.kff.org/ entmedia/upload/7536.pdf; CTR. FOR SCI. IN THE PUB. INTEREST, PESTERING PARENTS: HOW FOOD COMPANIES MARKET OBESITY TO CHILDREN (2003), available at http://www.cspinet.org/ new/pdf/pages_from_pestering_parents_final_pt_1.pdf; David Ashton, Food Advertising and Childhood Obesity, 97 J. Royal Soc’y Med. 51 (2004). 235 See, e.g., Diller & Graff, supra note 173; Adam Drewnowski, Obesity and the Food R Environment: Dietary Energy Density and Diet Costs, 27 Am. J. Prev. Med. 154 (2004). 236 See, e.g., Wendy C. Perdue, Obesity, Poverty, and the Built Environment: Challenges and Opportunity, 15 GEO. J. ON POVERTY L. & POL’Y 821 (2008); Montrece McNeil Ransom et al., Pursuing Health Equity: Zoning Codes and Public Health, 39 J.L. MED. & ETHICS 94 (2011) 237 See, e.g., Neissa Smith, Eatin’ Good? Not in This Neighborhood: A Legal Analysis of Disparities in Food Availability and Quality at Chain Supermarkets in Poverty-Stricken Areas, 14 MICH. J. RACE & L. 197, 217 (2009). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 52 9-OCT-14 12:08 98 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 where the threat of violence keeps people indoors.238 Predominantly Af- rican-American or Latino communities are more likely to be affected by communicable disease, substance abuse, mental health problems, and other risks that are exacerbated by disproportionate incarceration rates.239 But this ecological approach runs up against long-standing bias to- ward individualistic explanations of disease. Attribution of chronic dis- ease, substance abuse, and other health problems to personal failures “[s]erves a symbolic, or value expressive function . . . reinforcing a world view consistent with a belief in a just world, self determination, the Protestant work ethic, self-contained individualism, and the notion that people get what they deserve.”240 Rhetoric that frames health dis- parities in terms of personal responsibility for unhealthy behavior choices also implicates class, racial, and other forms of bias and struc- tural disadvantage. Efforts to reveal the importance of economic and social factors that influence individual health behaviors run the risk of overstating the associations between poverty or race and unhealthy be- havior. Measures that target the individual behaviors of low-income or nonwhite people as “unhealthy”—such SNAP restrictions or Medicaid wellness reforms—are inherently suspect from a social justice standpoint and should be carefully assessed. Libertarian objections to public health paternalism have garnered a great deal of attention in recent years,241 while social justice objections have been underappreciated. The rich discussion over the role of pater- nalism in ensuring environmental justice provide useful lessons that might be fruitfully applied to similar conundrums in public health law and policy. Indian law and poverty law scholar Ezra Rosser has de- scribed the challenge presented by an informed decision by a Native American tribal government to approve or conduct environmentally harmful waste disposal or natural resource removal activities on tribal land.242 Separating good from bad and right from wrong is easy when tribes are suffering from the policies or practices 238 See, e.g., Gary Bennet et al., Safe to Walk?: Neighborhood Safety and Physical Activ- ity Among Public Housing Residents, 4 PLOS MED. 1599, 1603 (2007); Dustin Duncan et al., Association Between Neighborhood Safety and Overweight Status Among Urban Adolescents, BMC PUBLIC HEALTH (Aug. 11, 2009) http://www.biomedcentral.com/1471-2458/9/289. 239 Michael Massoglia, Incarceration, Health, and Racial Disparities in Health, 42 L. & SOC’Y REV. 275, 280–81 (2008); James C. Thomas & Elizabeth Torrone, Incarceration as Forced Migration: Effects on Selected Community Health Outcomes, 98 AM. J. PUB. HEALTH S181, S182–83 (2008). 240 Christian S. Crandall & Rebecca Martinez, Culture, Ideology, and Antifat Attitudes, 22 PERSONALITY & SOC. PSYCHOL. BULL. 1165, 1166 (1996). 241 See Wiley et al., supra note 185. R 242 Ezra Rosser, supra note 44, at 469; see also JAMES M. GRIJALVA, CLOSING THE CIR- R CLE: ENVIRONMENTAL JUSTICE IN INDIAN COUNTRY (2008). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 53 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 99 of non-Indians, without tribal involvement, that reflect environmental racism or environmental injustice. It is much harder to know if environmental racism or injus- tice is involved when a tribe itself makes “an affirmative and informed decision to undertake an environmentally controversial project.”243 As Rosser points out, the environmental justice movement has, from its inception, tackled the potential tensions between environmental protec- tion and economic growth: In 1991, at the First National People of Color Environ- mental Leadership Summit, a broad concept of social justice that recognized “both public health and economic opportunity as indispensible aspects of the quality of life” emerged. Those at the summit concluded that “people should not be faced with choosing between an unsafe livelihood and unemployment.”244 On the one hand, the fact that tribal governments generally opt to permit environmentally harmful activities because those governments’ limited economic opportunities may justify the objection of environmental groups—and even environmental justice groups. On the other hand, de- nying tribes the right to participate in environmental degradation in the same way that other self-governing groups do negates their sovereignty. Reproductive justice scholars have also deeply probed the race and class biases evident in abortion—on both sides of the issue.245 And recent food justice scholarship evinces a similar critical self-examination with regard to issues of race and class.246 The health justice movement is not alone in struggling to reconcile recognition and redistribution as distinct, and potentially compatible, goals. Health advocates argue that low-income or nonwhite consumers dis- proportionately “choose” unhealthy food and beverage products because they are cheaper and more heavily marketed. Laws and polices discour- aging, or even restricting, those choices serve as a needed counter-weight to industry influence. At the same time, singling out poor or nonwhite consumers for paternalistic restrictions that could not feasibly be im- posed on all consumers (as the targeted permitting restriction in L.A. County did or SNAP restrictions would) raises legitimate concerns. USDA’s 2007 report opposing proposed SNAP restrictions concludes, 243 Rosser, supra note 44, at 469 (quoting A. Cassidy Sehgal, Note, Indian Tribal Sover- R eignty and Waste Disposal Regulation, 5 FORDHAM ENVTL. L.J. 431, 454 (1994)). 244 Id. at 470. 245 See Mary Ziegler, Roe’s Race: The Supreme Court, Population Control, and Repro- ductive Justice, 25 YALE J.L. & FEMINISM 1 (2013). 246 See Goldberg, supra note 72. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 54 9-OCT-14 12:08 100 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 “the problems of poor food choices, unhealthy diets, and excessive weight characterize all segments of American society; the basis for sin- gling out low-income food stamp recipients and imposing unique restric- tions on their food choices is not clear.”247 As FRAC has put it, “those suggesting strategies aimed uniquely at keeping poor people from the normal streams of decision-making and commerce bear a burden of justi- fying that targeting.”248 The reproductive justice movement’s insistence that women have the right to determine whether and how they mother regardless of their dependence upon social assistance might also suggest new ways of think- ing about the social justice implications of proposals to restrict access to and use of public benefits in the name of reducing health disparities. Joan Chrisler, for example, notes that “[u]nlike reproductive rights, which can be seen as based on the principle of negative rights (i.e., the right to resist being told by authorities what one can and cannot do with one’s own body), reproductive justice is based on the principle of posi- tive rights,” which she roots in a communitarian commitment to “support [for] pursuit of a good quality of life” as the legitimating purpose of government authority.249 The social justice framework demands more rigorous attention to these issues. Scholars and lawyers have an obligation to probe proposed interventions—ostensibly aimed at reducing health disparities—more deeply for evidence of social, cultural, and structural bias. It might be tempting to point to proposals to restrict SNAP benefits or Medicaid wellness reforms as positive indications that policymakers have made reducing health disparities a bipartisan public priority. But, as I have argued elsewhere, the heavy emphasis on personal responsibility that permeates these proposals threatens to do more harm than good to the cause of progressive reformers interested in changing our social and physical environments to facilitate healthier lifestyles.250 It might be tempting to dismiss the opposition of civil rights, anti-poverty, or anti- hunger groups as evidence of industry influence, but to do so would be to pass up an important opportunity to more fully explore and articulate the relationships between health and social justice. 247 U.S. DEP’T OF AGRIC., IMPLICATIONS OF RESTRICTING THE USE OF FOOD STAMP BENE- FITS – SUMMARY (2007), http://www.fns.usda.gov/ora/menu/Published/snap/FILES/Program Operations/FSPFoodRestrictions.pdf. 248 FOOD RESEARCH AND ACTION CTR. A REVIEW OF STRATEGIES TO BOLSTER SNAP’S ROLE IN IMPROVING NUTRITION AS WELL AS FOOD SECURITY 13 (2013), available at http://frac .org/wp-content/uploads/2011/06/SNAPstrategies.pdf. 249 Chrisler, supra note 58, at 4. R 250 See Lindsay F. Wiley, Shame, Blame, and the Emerging Law of Obesity Control, 47 U.C. Davis L. Rev. 121 (2013). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 55 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 101 D. Collective Action: Moving Beyond Expert-Driven Agendas to Community Engagement In addition to broadening the agendas of the progressive projects that preceded them and probing the substantive goals of those projects for the influence of elitism and bias, the environmental, reproductive, and food justice movements have also emphasized the importance of rec- ognition, participatory engagement, and voice for historically under- represented groups. The insistence on participatory engagement has, in some cases, contributed to a sense of unease regarding the role of law- yers and other formally educated experts. It has also prompted fruitful examination of the tension between pursuing particular legal reforms that experts believe would best serve the interests of the poor and socially disenfranchised and the autonomy of those groups to choose other ap- proaches that might be disfavored by experts. Scholars of “new social justice lawyering” as a practice untethered to any particular issue-based movement, have particularly emphasized the ways in which poverty acts as “a barrier to accessing the legal system and to exercising political power.”251 Some, like Ascanio Piomelli, have gone so far as to suggest a shift in “what we mean by and count as social justice and social change”—a shift away from substantive law reform to better serve the interests of low-income and otherwise marginalized communities and to- ward a process-based conception of social justice lawyering as a demo- cratic, participatory, collaborative project to ensure recognition of and self-determination for marginalized individuals.252 Although the environmental justice, reproductive justice, and food justice movements have continued to champion substantive law reforms aimed at ensuring a fair distribution of risks and benefits, commitment to participatory engagement by the poor and socially marginalized in deci- sion-making processes that concern their interests is clearly a hallmark of each movement. In the same way, the health justice framework might root ongoing efforts to ensure access to health care and healthy living conditions more firmly in community engagement and participatory par- ity. Jennifer Prah Ruger describes her capabilities approach to health and social justice as emphasizing both opportunity and process elements of freedom. “The process aspect makes public participation and delibera- tion in political decisions and social choice a constitutive part of public policy.” Quoting Amartya Sen, she notes that “[t]hese processes are cru- 251 Artika R. Tyner, Planting People, Growing Justice: The Three Pillars of New Social Justice Lawyering, 10 HASTINGS RACE & POVERTY L.J. 219, 219–20 (2013). 252 Ascanio Piomelli, Sensibilities for Social Justice Lawyers, 10 HASTINGS RACE & POV- ERTY L.J. 177, 177, 182–83 (2013). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 56 9-OCT-14 12:08 102 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 cial to the formation of values and priorities . . . and we cannot . . . take preferences as given independently of public discussion.”253 The Obama administration’s efforts to engage a wide range of stakeholders and community voices on the issues of health disparities and environmental justice are laudable. But the most impactful public health measures are being pioneered at the local level. And although local government is typically associated with greater democratic engage- ment, in the case of many recent healthy eating and tobacco control mea- sures, there has been a deliberate attempt to eschew political accountability in favor of insulated experts. Mayor Bloomberg’s administration explicitly framed its pioneering public health law interventions as efforts to reduce health disparities. These measures threaten the interests of politically powerful industries, and for that reason it is perhaps entirely understandable that Bloomberg pursued them through his Board of Health, which is far more insulated from political accountability than the directly elected City Council. On the other hand, public health, local government, and administrative law scholars have been critical of the anti-democratic nature of Bloomberg’s strategy.254 For example, public health law scholar Wendy Parmet has recently suggested that popular backlash against Bloomberg-style inter- ventions might be better understood as anti-expertise and pro-democratic process, rather than anti-paternalistic. Parmet’s argument makes sense to me, and I have similarly written about the importance of framing public health intervention in terms of democratic engagement—communities coming together to protect their health collectively in ways that they can- not accomplish individually.255 By pursuing the substantive reforms be- lieved to be in the interests of the poor without recognizing affected community members as full participants in a collaborative problem-solv- ing process, the Bloomberg strategy epitomizes a remedy for maldistri- bution that exacerbates misrecognition.256 Bloomberg’s public health legacy raises important and difficult questions about how best to recon- cile the substantive and procedural aims of social justice. It is difficult to argue against procedural fairness, but the highly individualistic notion of participatory engagement that permeates the 253 RUGER, supra note 15, at 55. R 254 See, e.g., Rick Hills, The Soda Portion Cap, Redux: Why Are New York City’s Agen- cies More Constrained than Federal Agencies, PRAWFSBLAWG (July 30, 2013), http:// prawfsblawg.blogs.com/prawfsblawg/2013/07/the-soda-portion-cap-redux-why-are-new-york- citys-agencies-more-constrained-than-federal-agencies.html; but see Paul Diller, Local Health Agencies, The Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 41 FORDHAM URBAN L.J. 1859 (2013) (arguing that Bloomberg’s Board of Health could have better insulated the portion cap rule from a separation of powers challenge by relying more explicitly on its health sciences expertise). 255 See Wiley et al, supra note 185. R 256 FRASER & HONNETH, supra note 35, at 86–87. R \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 57 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 103 new social justice lawyering movement is inconsistent with the commu- nitarian emphasis of the emerging health justice movement. The reality is that individual rights to self-determination can, in some instances, un- dermine community goals. Recent decisions by the Canadian, Israeli, and Brazilian courts to strike down provisions that strengthen publically financed health care systems by abrogating individual rights to circum- vent the public system are instructive here.257 Canadian health law scholar Colleen Flood, Israeli health law scholar Ayeal Gross, and others argue persuasively that rights-based arguments for access to health care grounded in individual rights to self-determination are undermining col- lective interests in cases across the globe.258 It is perhaps a stretch to suggest that the private cause of action to enforce federal Medicaid law could be similarly dangerous, but the Obama administration’s position on this issue—that private litigation threatens to undermine delicate negotia- tions between the federal government and the states over the sus- tainability of the Medicaid program as a whole—does strike a similar note.259 Again, environmental justice scholarship offers a wealth of rigorous thinking about similar issues regarding the decisions of socially disad- vantaged communities to take on environmental risks in exchange for (real or perceived) economic benefits. Notably, this environmental jus- tice scholarship has implicitly adopted an orientation toward collective engagement, rather than reifying the individual as the central focus of discussions about justice and fairness. In this regard, it provides a help- ful model for bridging the gap between the highly individualistic orienta- tion of the new social justice lawyering movement—which prioritizes the self-determination of individual clients over the lawyer’s conception of a good outcome—and the strongly communitarian orientation of the health justice movement. For health justice, the key may be to optimize participatory engage- ment as a matter of the collectively-held right of communities to protect themselves from hazards and to act together to ensure that essential needs are met. Arguments against state and federal preemption of local 257 See Ayeal Gross, Is There a Human Right to Health Care?, 41 J.L. MED. & ETHICS 138 (2013) (describing the use of rights-based arguments to reinforce privatization of health care and describing the Chaoulli (Canada) and Kiryati (Israel) cases); Octavio Luiz Motta Ferraz, The Right to Health in the Courts of Brazil: Worsening Health Inequities? 11 HEALTH & HUM. RTS. 33 (2009). 258 See generally THE RIGHT TO HEALTH AT THE PUBLIC/PRIVATE DIVIDE: A GLOBAL COMPARATIVE STUDY (Colleen M. Flood & Aeyal Gross eds., 2014). 259 Brief for the United States as Amicus Curaie Supporting Petitioner, Douglas v. Indep. Living Ctr., 132 S. Ct. 1204 (2012) (Nos. 09-958, 09-1158 and 10-283), available at http:// www.justice.gov/osg/briefs/2010/3mer/1ami/2009-0958.mer.ami.pdf. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 58 9-OCT-14 12:08 104 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 24:47 government public health authority are on point here.260 Examples of community engagement as a strategy for ensuring that measures to re- duce health disparities are consistent with broader social justice goals have begun to garner some scholarly attention. For example, the Los Angeles anti-fast-food permitting ordinance, which raises a red flag by targeting low-income and nonwhite neighborhoods, can perhaps be re- deemed by its democratic origins.261 The ordinance was developed through collaborative engagement between formally-trained experts and community groups and enjoys broad public support.262 Compromises hammered out in state legislatures between public health advocates and civil rights advocates over the move to primary enforcement seat belt laws offer a similarly hopeful counter-example to the anti-democratic narrative about the Bloomberg legacy.263 When interventions to address racial profiling in traffic stops were incorporated into primary enforce- ment seatbelt bills, the result was a win for public health and for broader social justice goals. CONCLUSION In spite of growing agreement that health law can and should be used as a tool for reducing health disparities, there has been little explo- ration of what social justice offers in the way of a conceptual framework for health law scholarship, activism, and reform distinct from the cur- rently dominant paradigms of market competition and patient rights. We may or may not be seeing the beginnings of a “health justice” movement. But either way, I believe that health law advocates and scholars have much to gain from more rigorous engagement with the fruitful ideas be- ing generated in legal scholarship influenced by the environmental, re- productive, and food justice movements and by political philosophers and ethicists writings on the multifaceted relationship between social jus- tice and health. In this Article, I have proposed three interrelated “health justice” commitments for the use of law as a tool for reducing health disparities. Others adopting a health justice framework may add to this list or may disagree with me altogether, but my purpose is to start a conversation, not to end one. 260 See Mark Pertschuk et al., Assessing the Impact of Federal and State Preemption in Public Health: A Framework for Decision Makers, 19 J. PUB. HEALTH MGMT. & PRAC. 213 (2013) (discussing the negative impact of preemption on grassroots movement building). 261 See LaVonna Blair Lewis et al., Transforming the Urban Food Desert from the Grass- roots Up: A Model for Community Change, 34 FAMILY & COMMUNITY HEALTH S92 (2011) (describing the coalition of community groups, informed by research, that led to the adoption of the Interim Control Ordinance in South Los Angeles). 262 Id. 263 See U.S. DEP’T OF TRANSP., supra note 144 (noting compromise measures reached in R several state legislatures that incorporated interventions to address racial profiling into bills adopting primary enforcement for seat belt mandates). \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 59 9-OCT-14 12:08 2014] HEALTH LAW AS SOCIAL JUSTICE 105 In the absence of more rigorous engagement with the social justice framework, there is a risk that “each reform effort [will be] perceived as an isolated exception to the norm of market-justice [while] the norm it- self still stands.”264 Many (though not all) of the interventions being proposed and deployed in the name of reducing health disparities are encouraging from a social justice standpoint. “But as long as these ac- tions are seen as merely minor exceptions to the rule of individual re- sponsibility, the goals of public health will remain beyond our reach. What is required is for the public to see that protecting the public’s health takes us beyond the norms of market-justice categorically, and necessitates a completely new health ethic.”265 The health justice frame- work offers a powerful critique of the ways in which market justice— even in its progressive form with an emphasis on patient rights and equal opportunity—shores up a narrow vision of health that is dominated by the health care industry, an impoverished vision of community as the mere aggregation of quasi-contractual relationships between autonomous and atomized individuals and their exogenous social environment, and a lopsided vision of reform as driven by privileged experts who fail to engage meaningfully with the communities they seek to serve. 264 Beauchamp, supra note 1, at 105. R 265 Id. \\jciprod01\productn\C\CJP\24-1\CJP102.txt unknown Seq: 60 9-OCT-14 12:08 
work_uvqmpzy4rbcbzckuvbmqhkaa4y	----	The grammar of administrative justice values This is a repository copy of The grammar of administrative justice values. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/123918/ Version: Accepted Version Article: Tomlinson, J orcid.org/0000-0002-7385-3085 (2017) The grammar of administrative justice values. Journal of Social Welfare and Family Law. pp. 1-14. ISSN 0964-9069 https://doi.org/10.1080/09649069.2017.1395951 eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ 1 Cover page Title: The Grammar of Administrative Justice Values Author: Dr Joe Tomlinson, Bartolomé House, University of Sheffield, Winter Street, Sheffield S3 7ND, UK 2 OMBUDSMAN, TRIBUNALS AND ADMINISTRATIVE JUSTICE SECTION The Grammar of Administrative Justice Values Joe Tomlinson* School of Law, University of Sheffield, Sheffield; Public Law Project, London, UK ABSTRACT The debate concerning administrative justice in the UK often involves reliance upon a certain set of values. Examples of such values include openness, confidentiality, timeliness, transparency, secrecy, fairness, efficiency, accountability, user-friendliness, consistency, participation, rationality, and equal treatment. These values are often deployed, both in academic and policy contexts, without much precision. This produces confusion which can hamper debate. This article therefore argues there is a need to reflect on how these oft- used values are deployed, and consider the particular concerns which underlie them. In this sense, this article suggests there is a need to refine the grammar of administrative justice. This argument is demonstrated through an extended analysis of tｴW ┗;ﾉ┌W ﾗa け┌ゲWヴ- aヴｷWﾐSﾉｷﾐWゲゲげぎ a site of emerging disagreement in recent years. It proposes that an important SｷゲデｷﾐIデｷﾗﾐ ﾏ┌ゲデ HW Sヴ;┘ﾐ HWデ┘WWﾐ デ┘ﾗ ┌ﾐSWヴゲデ;ﾐSｷﾐｪゲ ﾗa デｴW ┗;ﾉ┌Wぎ デｴW け;IIWゲゲｷHｷﾉｷデ┞げ ;ﾐS けIﾗﾐゲ┌ﾏWヴistげ ┌ﾐSWヴゲデ;ﾐSｷﾐｪゲく This article concludes by suggesting that, going forward, it is important to consider whether the use of abstractions is helpful at all in administrative law and justice debates. KEYWORDS Administrative justice; administrative law; public law; values; grammar; rationalism; abstraction; user-focus. The values of administrative justice In December 1998, Martin Partington, a central figure in the development of the modern study of administrative justice, gave a lecture on the topic of ‘Restructuring Administrative Justice’ at University College London (Partington 1999). In one part of the lecture he contended that administrative justice ought to be understood as a ‘single concept embracing two conceptually distinct aspects’. He labeled these two aspects the ‘institutional framework’ and ‘principles and values’. By the first of these terms, he referred to ‘all those tiers of decision-taking’, ‘obviously… the courts’, tribunals, inquiries, ombudsmen, and the ‘various other bodies’ involved in the delivery of government services. When referring to ‘principles and values’, he spoke of how administrative justice ‘implies important sets of principles and values, which must be considered as part of the conceptual framework’. Examples of such ‘values and principles’ that Partington notes are openness, confidentiality, transparency, secrecy, fairness, efficiency, accountability, consistency, participation, rationality, equity, and equal treatment. Other common examples include timeliness, courtesy, and user-friendliness. Understanding such values, he goes on to state, ‘adds to the complexity of conceptualising administrative justice, not least because not all of these principles and values are consistent with each other, and are often contingent in their nature and application’. Nonetheless, Partington urged that ‘we should revisit [the existing] conceptual language not only to see * CONTACT. Joe Tomlinsons Email: j.p.tomlinson@sheffield.ac.uk 3 whether it is still appropriate… but also … to see what other values and principles need to be brought into the framework’. His claim was, therefore, that: At the risk of making our lives more complex… any consideration of the structure of administrative justice cannot shy away from analysis of these competing values and principles. How they ultimately are summarized and packaged for public and political consumption is another matter; but that should not deter proper intellectual investigation of the range of values and principles which might be said to underpin the administrative justice system. This article highlights one way in which administrative justice has failed to supply the ‘proper intellectual investigation’ into values called for by Partington. Specifically, this article suggests that there remains space for reflection on the use of values talk itself in administrative justice, and that there is a need to refine the grammar of values in administrative justice (Gee and Webber 2013; Mashaw 2006). There are two main parts to the discussion here. The first part identifies a problem in the administrative justice debate: key values are often deployed, both in academic and policy contexts, without much precision. This can create analytical confusion. As such, it is suggested that there is scope for the further clarification of the various understandings and meanings that animate such values. The second part of the article offers an extended case study which demonstrates this need to reflect on the use of administrative justice values. The example used is the oft-referred-to value of ‘user-friendliness’, or being ‘user-focused’. In recent years, the UK Government and commentators alike have seen user-focus positively (O’Brien 2012) and research institutes are building agendas around the idea (e.g. UKAJI 2017a; UKAJI 2017b). Indeed, ‘user-focus’ could be said to now be a key value of administrative justice, and it is often used as an aspirational normative standard (e.g. Sossin 2017). This trend stands in stark contrast with the comments of Lord Reed in a recent UK Supreme Court (UKSC) decision concerning tribunal fees, where the government was criticised for emphasising users (R (UNISON) v Lord Chancellor [2017] UKSC 51). These judicial comments are also indicative of a wider developing critique of terms such as ‘users’, expressed by a range of commentators (O’Brien 2017) and in popular films such as Ken Loach’s I, Daniel Blake (2016). This paper shows how this apparent disagreement about users can be illuminated by understanding that different concerns are often in play when the value of ‘user-friendliness’ is discussed. In light of this, the article proposes an important distinction—between what will be called ‘accessibility’ and ‘consumerist’ understandings of user-focus—that is necessary for understanding talk about ‘user-friendliness’. As a preliminary issue, the notion of ‘grammar’ requires elaboration. Grammar, at least in the non-technical sense it is used here, seeks to capture the words and phrases that are commonly deployed by a community about a particular subject (Gee and Webber 2013a). Here, the subject matter is administrative justice. The community is constituted of those who regularly discuss it—typically policymakers, researchers, advisors etc. And the particular interest of this article is in what we commonly refer to as the ‘values’, ‘concepts’ or ‘principles’ of administrative justice. To be clear, words and phrases—value terms for our discussion—can be used to undertake a range of actions. They can be used to criticise and defend systems, practices, rules etc. They can also be used to understand and explain administrative justice. In this sense, the values of administrative justice, as discussed here, are seen as a ‘cognitive tool’ (Gee and Webber 2013a). In the context of values, we must be particularly alert to the fact we are dealing with a language of abstractions. That is to say, values are non-material entities which operate at a high level of generality. Some administrative law scholars have expressed particular hostility to the use of this sort of language (e.g. Griffith 1979). The purpose of this article is not to fully explore the merits, or otherwise, of such hostility. Nonetheless, this article does indicate that, where abstract 4 language is used, a subsequent need to refine what is actually meant arises. As such, it may give us pause to reflect more deeply on the nature and use of abstractions in contemporary administrative law and justice thought (Gee and Webber 2013b). Why we need to reconsider the grammar of administrative justice values There has been no shortage of attempts to state the values that an administrative justice system ought to respect. Indeed, it was observed by the Administrative Justice and Tribunals Council (AJTC) that the UK has a ‘rich history of developing principles for administrative justice’ (2010). Many statements of the values of administrative justice have come from institutions which engage with and are (or were) part of the administrative justice system (for a detailed outline see AJTC 2010). Two prominent and relatively recent examples are the Parliamentary and Health Service Ombudsman’s (PHSO) Principles of Good Administration (2009) and the AJTC’s Principles of Administrative Justice (2010b). The PHSO’s Principles of Good Administration set down a range of values intended not as ‘a checklist to be applied mechanically’ but as principles that could assist public bodies in taking action that achieves ‘reasonable, fair and proportionate results in the circumstances’. These principles formed part of a wider attempt by the PHSO to generate principles (see e.g. PHSO 2009b; PHSO 2009c). Six principles of ‘good administration’ were offered: getting it right; being customer focused; being open and accountable; acting fairly and proportionately; and putting things right; and seeking continuous improvement. These six principles—each explained through a few examples in the space of a few lines—were said to be informed by the experiences of the PSHO, with the introduction to the principles recognising that they ‘draw on over 40 years’ experience of investigating and reporting on complaints to propose a clear framework within which public bodies should seek to work’. The now defunct AJTC was an advisory body with a statutory role to keep the administrative justice system under review, with the aim of making it fair, accessible, and efficient (Tribunals, Courts and Enforcement Act 2007, Schedule 7(13)(1)). In 2010, the AJTC produced a statement of Principles for Administrative Justice—principles which built ‘on previous work in this field, and in particular on the Parliamentary and Health Service Ombudsman’s Principles of Good Administration (these were reviewed as part of work in AJTC 2010). Richard Thomas CBE, the then Chairman of the AJTC, explained that the principles were ‘designed to be used by officials in public bodies and beyond… [t]hey also apply to those dealing with complaints or appeals’. Much like the PHSO’s principles, the AJTC drew its principles from practical experience, via broad-based engagement with stakeholders (AJTC 2010b). The principles set down by the AJTC stated that a ‘good administrative justice system’ should: make users and their needs central, treating them with fairness and respect at all times; enable people to challenge decisions and seek redress using procedures that are independent, open and appropriate for the matter involved; keep people fully informed and empower them to resolve their problems as quickly and comprehensively as possible; lead to well-reasoned, lawful and timely outcomes; be coherent and consistent; work proportionately and efficiently; and adopt the highest standards of behavior, seek to learn from experience and continuously improve. These statements of values, largely reflective of others which have been produced by various institutions in recent years, can potentially serve some role as a general aide to public bodies (whether they actually do is a question for another day). What is left without development in the principles are deeper, more reflective considerations of how such values are to be understood. For instance, the PHSO’s principles state, under the rubric of ‘acting fairly and proportionality’, that people ought to be treated ‘impartially, with respect and courtesy’. This begs some important questions, including how are values such as ‘impartiality’ to be understood in an administrative justice context? This comment is, no 5 doubt, a cheap shot of sorts: this type of reflection would not be the sort of analysis of values that bodies such as the PSHO or AJTC would have any incentive (or time) to produce. However, documents such as Principles of Good Administration and Principles of Administrative Justice are often referred to as statements of administrative justice values, and it could be said they exert some impact on the shaping of administrative justice thought. More importantly, the way these documents discuss and deploy values is not too far from how academic literature does too. Looking to academic analysis, the values of administrative justice are occasionally reflected upon more deeply. For instance, such reflection can be found in the well-known work on the ‘models of administrative justice’ by Mashaw (1974; 1983) and Adler (2003). One recent, and clear, example is the work of Cowan et al, concerning the mandatory reconsideration system (2017). In the context of discussing values for redesigning the system, they consider the value of ‘accuracy’. They suggest that the value of accuracy, in the context of decision-making, concerns ‘an ascertainment of the facts of a case sufficient to enable the public official properly to apply the law to those facts’. This ‘elaboration’, they suggest, acknowledges that the value of accuracy ‘embraces both the proper ascertainment of facts and the appropriate application of law’. This sort of clarification is, as this article is suggesting, helpful: it distills two distinct concerns about the actual process which, if spoken of only as ‘accuracy’, could have been elided. But this sort of conceptual clarification remains rare and limited in the literature more generally. Far more common in the literature is the deployment of contested values without much, if any, acknowledgment of their contested nature (see Nason 2016 for further discussion of this). There is of course a great challenge in suggesting this to be a general problem with values talk in administrative justice scholarship: full evidence for such a claim would require a systematic analysis. In the stead of providing such an analysis here, I will refer to one recent example in this journal, which is indicative of the issue: Nason’s work on administrative justice in Wales (2017). In particular, Nason’s discussion of the various incarnations of the Wales Bill in 2015 and 2016, and their impact on administrative justice in Wales, provides a clear example. The 2015 Bill is criticised because its ‘logic and consistency were questionable’. The Wales Bill 2016 is said not to be ‘a clear and accessible piece of legislation’. The values of ‘consistency’, ‘coherence’, ‘clarity’, and ‘accessibility’ are all terms that could each represent a wide range of anxieties in the context they are being used. To be clear, this is not to criticise a particular author. It is to highlight that general values talk is something almost all (including myself) and even the most reflective administrative justice researchers do. General values talk in administrative justice is thus a problem as it often leaves a lack of clarity that hampers discussion. Values are protean concepts and the same value can act as a label for a range of more specific concerns—concerns which are often overlapping but ultimately different. For example, the value of ‘timeliness’ can be seen as a manifestation of a concern for efficient administration, the desire to reduce stress of those subject to a decision- making procedure, or a variety of other concerns. There are multiple concerns which may therefore underlie the value of timeliness, and thus any discussion or claim that hinges upon it. This means that, put very simply, authors can be talking about the same ‘values’ but, in substance, talking about very different issues. This is particularly troublesome where terms are widely used. Mashaw, for instance, has shown how the ‘millions of word spilled on the subject of accountability’ can be shown to be scholars ‘talking about different method and questions of accountability without specifying with any precision either the particular accountability problem that engages their attention or the choices they are making implicitly among different accountability regimes’ (Mashaw, 2006). While there is a strong case for further reflection on how we use the values of administrative justice, there is an important objection which could be made to such an 6 approach. Stated succinctly, that objection is that the consequence of the argument’s success is the opening up of an abstract debate from which little may be gained in practice. In other words, there is a ‘risk of making our lives more complex’ through encouraging nitpicking around values (Partington 1999). Public law more generally has perhaps fallen into this trap in recent years. Gee and Webber, applying Oakeshott’s concern about the use of rationalism (1991) to contemporary public law, identify a ‘push within the study of public law for a more rationalised, formalised, and institutionalised constitution’ (2013). This ‘push’—or ‘search for principle’—could, they suggest, lend itself to two readings about the approach of public lawyers to their discipline. One is that it could be what Oakeshott feared come true in modern public law thought, it being symptomatic of a ‘rationalistic propensity among public lawyers to prioritise the universal over the local, the uniform over the particular and, ultimately, principle over practice… culminat[ing] in public lawyers losing the ability to differentiate between the frailty of the constitution and the frailty of their own understanding of it’ (2013). Another, more positive, reading of the rationalistic ‘push’ within public law is that it is ‘evidence of [an] increasing sophistication and surefootedness’ in the understanding of a public law system which emerged out of haphazard conditions. Gee and Webber’s central thesis is that the optimum approach in public law is, in the ‘search for principle’, to be ‘sensitive to the place of practical knowledge’. In refining the grammar of administrative justice values—which this article suggests would be a helpful pursuit—there is need for caution not to wander into the territory of having a rationalistic debate. The administrative justice corner of the public law field has not been afflicted by such excessive rationalism. This may largely be due to the socio-legal approach many of the scholars occupying the field have adhered to in recent decades not providing a fertile space for such work. Indeed, administrative justice has, as this article suggests, had the contrary problem: it has neglected clarity when it has used concepts. The benefits of conceptual clarity can be seen in looking at the contemporary scholarship on public law generally, and particularly constitutional law. While, as Gee and Webber demonstrate, the field has succumbed to some of the problems associated with rationalism, it has also gained a greater awareness of the fact that the language of values is inherently general and ambiguous. A great deal of attention has, for instance, been given to elucidating the fundamental values of the Rule of Law, the separation of powers, and democracy (often discussed in terms of legislative sovereignty). There are many possible examples of the benefits of this awareness. Here, the recent case of R (Evans) v Attorney General [2015] UKSC 2 will be discussed. Evans revolved around the advocacy activities of Prince Charles. He would, from time to time, send letters to Ministers to express his stance on various government policies. This correspondence became known as the ‘black-spider memos’. A catchy, somewhat menacing tagline with a banal cause: Prince Charles’s choice of ink and particular style of handwriting. Mr. Evans, a journalist, sought to use the Freedom of Information Act 2000 (FOIA) in order to bring these memos into the public domain. Subsequent to various departments declining to release the letters on public interest grounds, Mr. Evans went to the Information Commissioner. The letters were still not released. The resistance to the release of the letters finally broke in the Upper Tribunal (Evans v Information Commissioner [2012] UKUT 313 (AAC)). In a remarkably meticulous judgment which gave detailed consideration of constitutional conventions concerning the role of the heir to the throne (see generally: Murray, 2013), the UT held that the public interest justified the release of the letters. After that judgment, the Government (specifically, the Attorney General) used its ‘veto’ power contained in section 53 of the FOIA, issuing a certificate claiming that it had ‘reasonable grounds’ for having formed the opinion that non-disclosure would not be unlawful. The Government thus sought to end the effect of the UT’s order. The case then went on to judicial review, where Mr. Evans went from failure in the Administrative Court (R (Evans) v Attorney 7 General [2013] EWHC 1960 (Admin)) to success in the Court of Appeal (R (Evans) v Attorney General [2014] EWCA Civ 254). The stage was thus set for a ‘constitutional blockbuster’ in the UKSC (Elliott, 2015a). The question was ultimately a clear one of statutory interpretation: was the Government’s veto intra vires section 53? The reasoning within the UKSC took three paths (R (Evans) v Attorney General [2015] UKSC 21, [2015] 2 WLR 813). The majority in the UKSC was made up of two lines of reasoning. Lord Neuberger, with Lord Kerr and Lord Reed, read section 53 so that the Attorney General had no power to overrule the Tribunal, rendering the certificate unlawful. Lord Mance, supported by Lady Hale, rejected Lord Neuberger’s approach, but held that the Attorney General could not overrule the UT’s findings. Lord Hughes and Lord Wilson dissented. They held section 53 could only be read as authorising the Attorney General to override the UT in situations where he took a different view of the public interest. Divisions about the correct approach to statutory interpretation were readily apparent. The various approaches within the UKSC were attacked and defended by a range of commentators (see e.g. Ekins and Forsyth 2015; Elliott 2015a; Fairclough 2017; Allan 2016). The validity of the different positions set out by the many commentators who had something to say about Evans is immaterial to this article’s argument. What is material is that these arguments traded on and were informed by a clear understanding that core constitutional values—particularly parliamentary sovereignty, the Rule of Law, and the separation of powers—are widely contested as to their content and relationship. The whole debate around Evans was shot through with a clear awareness that ‘such questions [as those in the case] do not admit of straightforward answers’ but that they ‘form sites of controversy’, with ‘how they fall to be approached being coloured heavily by the underlying constitutional perspective that one adopts’ (Elliott, 2015a). For instance, Elliott (2015a) highlights how Evans speaks to disagreement about the values of parliamentary sovereignty, the Rule of Law, and separation of powers: The basic architecture of the constitution consists of a series of relational principles. They make subtle, overlapping, sometimes-contradictory, sometimes-complementary claims. None of them stands for a simple proposition, and the degree of complexity that they exhibit when viewed in isolation is multiplied when they are—as they must be—conceived of in relational terms. For this reason, a large part of the complexity of constitutional adjudication in cases such as Evans derives from the need to determine not simply what these fundamental principles mean, but how they interact with, qualify and inform prevailing conceptions of one another. Unsurprisingly, there is considerable scope for differences of view in relation to such matters, as Evans amply attests. Those differences are manifested not only by the very different positions adopted by the majority and minority judges, but by highly significant differences of emphasis within the majority. In understanding such the lack of clarity around constitutional values talk, the constitutional law debate has found itself in place to recognise that a range of different underlying concerns operate beneath general labels. Similar awareness about the lack of clarity in values talk in administrative justice would be a welcome development. Overall, there is a need to revisit the grammar of administrative justice values, and to refine it. The alternative is a debate which suffers from a problematic lack of clarity. This is not to call for a nitpicking and needlessly complex discussion of what various values mean. Instead, this is to call for more clarification and care when various values are deployed. A detailed case study is useful to explain, in a more concrete way, how such clarification on the values of administrative justice may assist debate. The next section will focus on the value of ‘user-friendliness’: a major site of disagreement in recent years. The turn to ‘users’ in administrative justice: revisiting the value of ‘user- friendliness’ 8 In UK administrative justice circles, it would be easy to get the impression that we are all ‘user-focused’ now. Particularly since the 2004 White Paper on Transforming Public Services, the parts of the government concerned with administrative justice (notably the Ministry of Justice and HM Courts and Tribunals Service) have consistently spoken of building tribunals and other administrative justice systems to fit user needs. There is no sign of change here either. A policy document published in late 2016—Transforming Our Justice System—announced a huge investment in the justice system and set out, among other things, a vision for online tribunals (Tomlinson 2017). Part of this vision involved online tribunals being ‘specifically designed to meet user needs’ and systems ‘focused around the needs of individuals so that claimants can be more confident that their needs will be understood’ (MOJ 2016). Government departments, including the Ministry of Justice, are even adopting ‘agile’ or ‘design thinking’ approaches, which use techniques premised on the value of user-focused design (Kimbell and Bailey 2017). Often, commentators have seen user-focus positively (e.g. O’Brien 2012) and research institutes are building agendas around the doing ‘user research’ (UKAJI 2017a; UKAJI 2017b). ‘Being user-focused’—or, perhaps more simply, ‘user- friendliness’—could be said to now be a key value of administrative justice, and is often used as an aspirational normative standard (e.g. Sossin 2017). While there is a growing—if still small—body of academic literature on users (Partington 2017), there has been little discussion about user-friendliness as a value, even though it is often used as such. There is, in the first instance, the basic question of who is the ‘user’? This could be a lay user, a lawyer, some other professional user (such as a welfare advisor), or even a judge. Typically, the term ‘user’ relates to the lay user. But, putting that question aside and adopting its usual meaning of focus on the lay user for the sake of discussion, the concept of for ‘user-friendliness’ can represent multiple different ideas. This was particularly evident in the recent UKSC decision in UNISON, which appeared to offer a critique of focusing on users. UNISON has some trademark features of an instant classic in public law—it being high- profile in mainstream media (e.g. Hughes 2017), carrying significant practical effects (in terms of the reimbursement of tribunal fees paid under an unlawful scheme and the removal of the fee going forwards), and advancing in-vogue talk of common law constitutional rights (Elliott 2015b). The legal issue at stake was, much like Evans, relatively simple. Section 42 of the Tribunals, Courts and Enforcement Act 2007 provides that ‘[t]he Lord Chancellor may by order prescribe fees payable in respect of’ various tribunals, including the Employment Tribunal and the Employment Appeal Tribunal. In 2013, Chris Grayling, the then Lord Chancellor and Secretary of State for Justice, used the section 42 power to make the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893). The effect of that Order was—stating in a broad fashion—that most people who wished to make use of the Employment Tribunals had to pay fees where, previously, no such fees had been payable. This led to a dramatic and sustained drop in the number of claims lodged in Employment Tribunals. There are three ways to measure of demand for employment tribunals: volume of cases, volume of claims, and volume of jurisdictional complaints (Adams and Prassl 2017) Demand fell significantly upon the introduction of the fees, whichever of these metrics is used (Adams and Prassl 2017). Overall, claims dropped by nearly 80% with the introduction of fees (MOJ 2012; MOJ 2015). The core legal issue before the UKSC whether the Order was lawful. UNISON argued successfully that the Order was unlawful (having failed to win in the High Court and Court of Appeal)—with their central argument being that the Order impeded access to justice, and that the Lord Chancellor’s order-making power, granted by section 42 of the Act, did not extend to impeding such access. At the heart of the case, therefore, was a question of statutory interpretation. Given the nature of the claim, issues of fundamental constitutional principle were engaged as part of the interpretive exercise. The UKSC offered 9 a clear, unanimous judgment. In delivering the judgment of the Court, Lord Reed, in a passage on the ‘constitutional right’ to access to justice, stated the following: The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since ‘ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services’ (UNISON para. 66). On the back of these observations, Lord Reed went on to explain ‘the importance of the rule of law, and the role of access to the courts in maintaining the rule of law’, and why, in his view, ‘the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable’. He furthered explained that ‘courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’ and that function ‘includes ensuring that the executive branch of government carries out its functions in accordance with the law’. This function of courts was said to entail the requirement that ‘people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade’ (para. 68). That, he explains, is why ‘the courts do not merely provide a public service like any other… [a]ccess to the courts is not, therefore, of value only to the particular individuals involved’ and ‘[t]hat is most obviously true of cases which establish principles of general importance’. Lord Reed’s comments seem to suggest that focusing on users does not lead us to a better justice system, but to one where the UKSC feels the need to reprimand the executive and provide a Rule of Law 101. At the heart of Lord Reed’s critique of the government is that, in their assessment of whether tribunals fees were a good idea, it focused too much on users as consumers of legal services and did not focus enough on the wider role that a user may play as a citizen in the maintenance a good political community (through, in this instance, bringing a claim to a tribunal). Such an underlying mode of thought is apparent in multiple comments—perhaps most notably where he criticises the alleged ‘assumption [on the part of the government] that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them’. As a somewhat technical aside, Lord Reed’s critique seems to be unduly sweeping in this case. The quote of the government referred to by Lord Reed—that ‘ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services’—does not make the claim that the employment tribunals ‘provide no broader social benefit’. Instead, it shows a balancing exercise where the broader social benefit has been recognised as part of a value judgment. Even if it had not been given enough weight in Lord Reed’s view, it would be too far to suggest the government did not recognise the social benefit the justice system can provide. Furthermore, a key element of the UKSC’s judgment is that tribunal fees had the effect of disadvantaging users accessing justice or, in other words, hampering users. It therefore seems that a more accurate criticism would be that the government pursued a policy on a misunderstanding of user needs, or in denial of negative impacts on users. However, that point aside, Lord Reed’s comments—when placed next to the generally positive way user-focus has been perceived in many quarters—presents some obvious tensions within the value of ‘user-friendliness’. 10 The problem appears to be that when ‘user-friendliness’ is deployed, it can represent multiple—and contradictory—understandings. There are at least two understandings which are commonly adopted. The first is that user-focus conceives the justice system as a private product for consumption by the individual (and not as a system where individuals can partake in the state’s public decision-making processes). We can call this the ‘consumerist’ understanding. The second understanding is that the system should be convenient, accessible, and simple for lay users. We can call this the ‘accessibility’ understanding. Clarifying and drawing a distinction between these two aspects of the notion of being user focused—by articulating the more specific meaning—may assist the administrative justice debate. This distinction, by way of continued example, can help us make sense of Lord Reed’s comments on the perils of user-emphasis in UNISON. As explained above, Lord Reed’s comments present a tension. On the one hand, many concerned with administrative justice have championed ‘user focus’ as a means of improving access to justice. In this light, Lord Reed’s critique aimed towards user-focus would seem odd. It would seem especially odd given that the critique was offered as part of a wider discussion of the importance of the constitutional right of access to justice. But if we recognise that the concept of user- friendliness represents more than only the accessibility understanding, Lord Reed’s comments can be clarified. Specifically, they can be read as a concern about the consumerist understanding of user focus. This reading is support by numerous points of the judgment. Lord Reed denounces the idea that ‘bringing a claim before a court or a tribunal is a purely private activity’. He also speaks about ways in which court cases—such as the landmark tort case of Donoghue v Stevenson [1932] UKHL 100—are not only ‘of value… to the particular individuals involved’ but also to the wider community. He directly speaks of the role of citizen in forming the law which regulates the community, that being said to be ‘most obviously true of cases which establish principles of general importance’. All of those comments map onto a concern about ‘user-friendliness’ in its consumerist sense. Understanding Lord Reed’s judgment on those terms therefore allows us to reconcile his critique of user-focus with the fact that the critique is situated in a discussion about the constitutional right of access to justice. The size of the possible gap between these two faces of the same concept—user-focus—is evident in two articles by O’Brien, published in The Political Quarterly in 2012 and 2017 respectively. In the former article, O’Brien reflects on the 2010-2015 Coalition Government’s proposal to abolish the AJTC. At times, he casts the value of user-focus in a positive light. In the following passage for instance, it forms part of his regret about the demise of the AJTC and ‘its vision of a transformed, and transformational, future’ that was to be ‘consigned to the Whitehall archives’: The Coalition government’s decision to abolish the Administrative Justice and Tribunals Council (AJTC) in its Public Bodies Bill (now the Public Bodies Act 2011) brings to an end a brief period during which administrative justice had seemingly come of age. The previous government’s 2004 White Paper Trans- forming Public Services: Complaints, Redress and Tribunals for the first time in more than a generation had set out a vision for administrative justice that aimed to give it parity with civil and family justice: it spoke ambitiously of an administrative justice ‘system’ that would comprise not just courts and tribunals, but ombudsmen and departmental first-instance decision makers, too; it proposed as the guiding principle for the construction of this ‘system’ the principle of ‘proportionate dispute resolution’, in effect applying to administrative justice a ‘horses for courses’ philosophy; and it elevated the ‘user’ of the system to a position of pre- eminence at the expense of judges and administrators, for whose benefit other parts of the judicial system seem so often to have been organised. In same article, there is also worry about the notion of user-focus: The price, so far as administrative justice in particular is concerned, has been the adoption of a predominantly consumerist approach to justice that, whatever its merits in other fields, in the arena of public law diminishes the status of the actors, both individual citizen and state, by reducing them merely 11 to the purchasers of dispute resolution services. The idea that there might be a public interest in the relationship between state and citizen that eludes the easy categories of a consumer transaction and that invites solutions that are not rigorously instrumental or pragmatic is in this, as in so many other areas of once ‘public’ life, largely alien to the zeitgeist. The consecration of ‘the user’ as part of the ‘new public management’ ethos has no doubt introduced a welcome re-balancing of priorities in favour of an element of ‘customer focus’, but the possibility that the word ‘customer’ might in this instance be a metaphor seems not to have much currency. In his 2017 article, O’Brien revisits similar themes via a review of the Ken Loach film I, Daniel Blake (2016). The film follows the character of Daniel Blake. It depicts his troubled interactions with the Department for Work and Pensions, concluding with his death from a heart attack as he waits at the door of a delayed tribunal hearing. In the film’s final scene, a passage written by Blake is read out at his funeral: I am not a client, a customer, nor a service user. I am not a shirker, a scrounger, a beggar nor a thief. I am not a national insurance number, nor a blip on a screen. I paid my dues, never a penny short, and proud to do so. I don’t tug the forelock but look my neighbour in the eye. I don’t accept or seek charity. My name is Daniel Blake, I am a man, not a dog. As such, I demand my rights. I demand you treat me with respect. I, Daniel Blake, am a citizen, nothing more, nothing less. Thank you. Drawing upon this impassioned message of rage against bureaucratic despair, O’Brien suggests it—and the message of the film more generally—provides cause to pursue a ‘reimagined sense of citizenship’ in the administrative justice sphere. He argues that ‘Daniel Blake’s ‘manifesto’ is strong in its insistence that ‘citizenship’ must supersede other ways of characterising the relationship between the individual and the state, especially those informed by the language of the market-place: the depiction of the individual as ‘client’, ‘customer’ or ‘service-user’ is as a result to be abandoned’. In these passages and across both articles, O’Brien wrestles with the tensions within the value of being user-focused. He ultimately engages with both of its contradictory understandings: his apparent desire to welcome its recognition of accessibility concerns are coupled with a deep-seated reluctance to acquiesce to the consumerist understanding of user-focus. This case study of the value of user-friendliness is brief but it highlights how talk of key values in administrative justice may benefit from further reflection of the sort which this article has argued there is an important role for. The notion of ‘user focus’ is just one instance of where the grammar surrounding administrative justice lacks clarity, however, the strongly contradictory understandings of ‘user-focus’ outlined above demonstrates the imperative to be specific in articulating the underlying concerns when the concept is used. In its general form, the concept is a placeholder for at least two sharply contrasting meanings. Conclusion Nearly twenty years on from Partington’s landmark ‘Reconstructing Administrative Justice’ lecture, there have been multiple attempts to state important values in administrative justice and much reliance of values in analysis. There has, however, been a persistent failing in this values talk: key values are often deployed, both in academic and policy contexts, without much precision. This can create analytical confusion which hinders debate. The solution proposed here is to recognise the need to reflect upon and refine the current grammar of administrative justice values. In other words, we should seek to specify the particular concerns which typically underlie these values—these values often being a placeholder for a range of often overlapping but ultimately different concerns. This article has sought to demonstrate this problem and proposed solution in the context of concerns about the value of user-friendliness. In this respect, it has been shown that underlying the often-used notion of 12 user-friendliness are two sharply contrasting understandings. In this context, general values talk has led to conceptual confusion about the matter that is the subject of disagreement. There is a question which this analysis puts firmly on the table, but leaves unresolved: are abstractions helpful at all in administrative law and justice debates? One argument could be that, given the need this article has identified to refine abstract values language, it is more useful just to avoid such language altogether. JAG Griffith—no doubt among the greatest administrative lawyers in the subject’s relatively short history in the UK—railed against the use of abstractions (1979). He condemned the ‘elaborate facades’ of language ‘deliberately constructed to fool most of the people most of the time’ and the ‘out of date piece of stage paraphernalia which someone had forgotten to clear away with the other impediments of Professor Dicey’s England’. There are many examples of Griffith expressing concern about how ‘the natural lawyers, the metaphysicians and the illusionists’ traded on abstractions. The functionalist tradition that Griffith was a part of consistently cautioned of the dangers of getting bound up in concepts at the expense of material substance (Loughlin 2005). This is not a position without hazard, though: some have expressed concern that materialism and empiricism—which may be caricatured as a ‘cold-eyed budgetary approach’—can go without the benefits that attach only to ‘emphatically normative’ theorising (Waldron 2013). This article has addressed a different question and it is not the place to rehearse the full arguments around this point, but the analysis here does suggest this is an issue ripe for further exploration in the administrative law and justice context (Gee and Webber 2013b). Acknowledgements I am grateful to Richard Kirkham and the anonymous reviewer for helpful comments. I am also thankful to discussants at the University of Edinburgh’s Constitutional Law Discussion Group—particularly Dr Christian Gill and Professor Chris Himsworth—for detailed comments on an early draft that I presented in November 2016. A later version of this paper was presented at the University of Oxford Public Law Discussion Group in January 2017, kindly organised by Ewan Smith. All views and any errors are my own. Disclosure statement No potential conflict of interest was reported by the author. Notes on contributor Joe Tomlinson is a Lecturer in Public Law at the University of Sheffield and Research Director of the Public Law Project. References Adams, A. and Prassl, J. (2017). Vexatious Claims: Challenging the Case for Employment Tribunal Fees. Modern Law Review, 80, 3, 412. Adler, M. (2003.) A Socio-legal Approach to Administrative Justice. Law & Policy 25(4), 323. Administrative Justice and Tribunals Council. (2010). Developing Principles of Administrative Justice. Administrative Justice and Tribunals Council. (2010b). Principles of Administrative Justice. Allan, T.R.S. (2016). Law, Democracy and Constitutionalism: Reflections on Evans v Attorney General. Cambridge Law Journal, 38. Cowan, D., Dymond, A., Halliday, S., and Hunter, C. (2017). Reconsidering mandatory reconsideration. Public Law, 215. Ekins, R. and Forsyth, C. (2015) Judging the Public Interest: The Rule of Law vs The Rule of Courts, London: Judicial Power Project Elliott, M. (2015a). A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution’s Relational Architecture. Public Law, 539. 13 Elliott, M. (2015b). Beyond the European Convention: Human Rights and the Common Law. Current Legal Problems, 68, 85. Elliott, M. (2017). Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law. Public Law for Everyone, 26 July 2017, available at https://publiclawforeveryone.com/2017/07/26/unison- in-the-supreme-court-employment-fees-constitutional-rights-and-the-rule-of-law/. Fairclough, T. (2017). Evans v Attorney General: The Underlying Normativity of Constitutional Disagreement. In Juss, S. and Sunkin, M, (eds), Landmark Cases in Public Law, Oxford: Hart. Gee, G. and Webber, G. (2013). A Grammar of Public Law. German Law Journal, 14, 12, 2137. Gee, G. and Webber, G. (2013b). Rationalism in Public Law. Modern Law Review, 76(4). Griffith, J.A.G. (1979). The Political Constitution. Modern Law Review, 42, 1. Hughes, L. (2017). Government's employment tribunal fees are 'illegal', Supreme Court rules. The Telegraph, 26 July 2017, available at http://www.telegraph.co.uk/news/2017/07/26/governments-employment-tribunal- fees-illegal-supreme-court-rules/ Kimbell, L. and Bailey, J. (2017). Prototyping and the new spirit of policy-making. CoDesign: International Journal of CoCreation in Design and the Arts, 13, 3, 214. Loach, K. (Director) (2016). I, Daniel Blake. Loughlin, M. (2005). The Functionalist Style in Public Law. University of Toronto Law Journal 55, 3, 361. Mashaw, J.L. (1974). The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness and Timeliness in the Adjudication of Social Welfare Claims. Cornell Law Review, 59, 772. Mashaw, J.L. (1983) Bureaucratic Justice: Managing Social Security Disability Claims. New Haven: Yale University Press. Mashaw, J.L. (2006). Accountability and Institutional Design: Some Thoughts on the Grammar of Governance. In Dowdle, M.W. (ed), Public Accountability, Designs, Dilemmas and Experiences, Cambridge: Cambridge University. Ministry of Justice (2004). Transforming public services. Ministry of Justice (2012). Introducing a fee charging regime into Employment Tribunals and the Employment Appeal Tribunal: Impact Assessment, IA TS007. Ministry of Justice (2015). Tribunal and Gender Recognition Statistics Quarterly: January to March 2015. Ministry of Justice (2016). Transforming our justice system. Murray, P. (2013). The Prince and the Paper: Disclosing Prince Charles's Advocacy Correspondence. Cambridge Law Journal, 1. Nason, S. (2017). Administrative Justice in Wales: a new egalitarianism? Journal of Social Welfare and Family Law, 39, 1, 115. Nason, S. (2016). Reconstructing Judicial Review, Oxford: Hart. O’Brien, N. (2012) Administrative Justice: A Libertarian Cinderella in Search of an Egalitarian Prince. The Political Quarterly, 83, 3, 494. O’Brien, N. (2017). Administrative Justice in the Wake of I, Daniel Blake. The Political Quarterly (online publication). Oakeshott, M. (1991). Rationalism in Politics and Other Essays, Indianapolis: Liberty Fund. Parliamentary and Health Service Ombudsman. (2009). Principles of Good Administration. Parliamentary and Health Service Ombudsman. (2009b). Principles of Good Complaint Handling. Parliamentary and Health Service Ombudsman. (2009c). Principles for Remedy. Partington, M. (1999). Restructuring administrative justice? The redress of citizens’ grievances. Current Legal Problems, 52, 173. Partington, M. (2017). Overview of users’ perspectives, feedback from small groups, and discussion of ways forward. UK Administrative Justice Institute Researching User Perspectives Workshop Sossin, L. (2017). Designing Administrative Justice. Windsor Yearbook of Access to Justice, forthcoming. Tomlinson, J. (2017). A primer on the digitisation of administrative tribunals. UK Administrative Justice Institute (2017a). Researching users’ perspectives – report from a UKAJI workshop. UK Administrative Justice Institute Blog, 15 February, available at https://ukaji.org/2017/02/15/researching-users-perspectives-report-from-a-ukaji-workshop/ UK Administrative Justice Institute (2017b). Research Roadmap – where have we been and where do we need to go with research on administrative justice? UK Administrative Justice Institute Blog, 10 August 2017, available at https://ukaji.org/2017/08/10/research-roadmap-where-have-we-been-and-where-do-we-need- to-go-with-research-on-administrative-justice/ Waldron, J. (2013). Political Political Theory: An Inaugural Lecture. The Journal of Political Philosophy, 21, 1. Waldron, J. (2016). Political Political Theory: Essays on Institutions, Massachusetts: Harvard University Press. 
work_uzjb7sxnjzhbppvgipbarvbxqq	----	PEDS_20171107 1..7 Article Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 Preventive Care Use Among Justice-Involved and Non– Justice-Involved Youth Matthew C. Aalsma, PhD, a Valerie R. Anderson, PhD, b Katherine Schwartz, JD, MPA, a Fangqian Ouyang, MS, c Wanzhu Tu, PhD, c Marc B. Rosenman, MD, d Sarah E. Wiehe, MD, MPHe BACKGROUND AND OBJECTIVES: Youth involved in the juvenile justice system (ie, arrested youth) are at risk for health problems. Although increasing preventive care use by justice-involved youth (JIY) is 1 approach to improving their well-being, little is known about their access to and use of care. The objective of this study was to determine how rates of well-child (WC) and emergency department visits, as well as public insurance enrollment continuity, differed between youth involved in the justice system and youth who have never been in the system. We hypothesized that JIY would exhibit less frequent WC and more frequent emergency service use than non–justice-involved youth (NJIY). METHODS: This was a retrospective cohort study of administrative medical and criminal records of all youth (ages 12–18) enrolled in Medicaid in Marion County, Indiana, between January 1, 2004, and December 31, 2011. RESULTS: The sample included 88 647 youth; 20 668 (23%) were involved in the justice system. JIY had lower use rates of WC visits and higher use rates of emergency services in comparison with NJIY. JIY had more and longer gaps in Medicaid coverage compared with NJIY. For all youth sampled, both preventive and emergency services use varied significantly by Medicaid enrollment continuity. CONCLUSIONS: JIY experience more and longer gaps in Medicaid coverage, and rely more on emergency services than NJIY. Medicaid enrollment continuity was associated with differences in WC and emergency service use among JIY, with policy implications for improving preventive care for these vulnerable youth. abstract aDepartment of Pediatrics, Section of Adolescent Medicine, cDepartment of Biostatistics, and eDepartment of Pediatrics, Children’s Health Services Research, Indiana University School of Medicine, Indianapolis, Indiana; bSchool of Criminal Justice, University of Cincinnati, Cincinnati, Ohio; and dDepartment of Pediatrics, School of Medicine, Northwestern University, Chicago, Illinois Dr Aalsma was responsible for the conception and design of the project, as well as the acquisition of administrative health and criminal records analyzed herein, and he reviewed and revised the manuscript; Dr Anderson and Ms Schwartz contributed to the design of the project and drafted and critically revised the manuscript; Ms Ouyang and Drs Tu, Rosenman, and Wiehe contributed to the analysis and interpretation of the data and critically revised the manuscript; and all authors approved the final manuscript as submitted. DOI: https:// doi. org/ 10. 1542/ peds. 2017- 1107 Accepted for publication Jul 12, 2017 Address correspondence to Matthew C. Aalsma, PhD, Department of Pediatrics, Section of Adolescent Medicine, Indiana University School of Medicine, 410 West 10th St, Rm 1001J, Indianapolis, IN 46202. E-mail: maalsma@iu.edu PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275). PEDIATRICS Volume 140, number 5, November 2017:e20171107 What’s KnOWn On thIs subject: Justice-involved youth (JIY) are at greater risk for health problems when compared with non–justice-involved youth. Increased preventive care may improve the health of JIY, allowing physicians to screen for common causes of preventable morbidity. What thIs stuDy aDDs: In this retrospective cohort study of administrative health and criminal records, JIY were significantly less likely to use preventive care when compared with non–justice- involved youth. JIY experienced significantly more and longer gaps in Medicaid coverage. to cite: Aalsma MC, Anderson VR, Schwartz K, et al. Preventive Care Use Among Justice-Involved and Non– Justice-Involved Youth. Pediatrics. 2017;140(5):e20171107 by guest on April 5, 2021www.aappublications.org/newsDownloaded from https://doi.org/10.1542/peds.2017-1107 mailto: A significant number of youth are arrested, thereby beginning their involvement in the juvenile justice system. In a national survey of youth (ages 8–23 years) from 1997 to 2008, ∼1 in 3 respondents reported being arrested by age 23.1 Justice-involved youth (JIY; ie, youth who have been arrested) tend to suffer significant health problems when compared with youth who have never been involved in the system (non–justice-involved youth [NJIY]). JIY, compared with NJIY, are at an increased risk for sexually transmitted infections, including HIV; mental health and substance use problems; and injury.2 – 6 To combat this heightened risk for physical and behavioral health problems, there have been national calls for improved access to, and quality of, medical and behavioral health services for JIY.7 – 9 Increasing use of preventive primary care services is 1 approach offered to improve the health of vulnerable populations, including JIY.10 Well-child (WC) visits provide an opportunity for primary care physicians to screen for common causes of preventable morbidity among adolescents, such as substance use, risky sexual behavior, and episodes of violence.11, 12 However, the actual rate at which JIY use preventive primary care services has rarely been studied, much less in direct comparison with an equivalent group of NJIY. The study’s purpose was to address this gap in the research by determining the annual rate of WC visits by Medicaid-enrolled JIY. We compared the JIY rate to that of Medicaid-enrolled NJIY from the same Midwestern county and time period. Because preventive health care use was the focus of our study, it was important to consider 2 other relevant variables: continuity of health insurance coverage and use of emergency department (ED) services over the same time period. First, transitions on or off of public health insurance rolls (ie, “churning”) are common, 13, 14 creating gaps in patients’ ability to pay for health care, especially nonurgent, preventive care. Past researchers have confirmed that a lack of health insurance coverage is associated with deficits in primary care use.15, 16 Disenrollment in public health insurance is also related to a host of risk factors (financial instability, minority race and/or ethnicity, and low parental education attainment) that are highly associated with justice system involvement, 17, 18 which makes it difficult to compare JIY care use to that of NJIY without accounting for insurance status. Second, it has often been hypothesized that patients without meaningful access to primary care services rely more heavily on ED services.19 Indeed, patients who can identify a usual source of care, and those who regularly use quality primary care services, are less likely to visit the ED.20, 21 Given the complex relationships among variables related to preventive care use, we compared JIY and NJIY in 3 ways: Medicaid enrollment continuity (including number and length of gaps in coverage), rates of WC visits, and rates of ED visits. MethODs We conducted a retrospective cohort study of youth (ages 12–18) who resided in Marion County, Indiana, and were enrolled in Medicaid at any time between January 1, 2004, and December 31, 2011. The Indiana Office of Medicaid Policy and Planning granted access to all electronic health records and monthly insurance enrollment tables. These records are stored in the Indiana Network for Patient Care, a health information exchange repository with clinical and/or hospital and payer data. The Marion County Juvenile Superior Court provided access to juvenile criminal records for youth over the same time period. The study was approved by the Indiana University Institutional Review Board and the Indiana Supreme Court. Youth criminal records were linked to health care payer records by using a probabilistic matching algorithm, which paired records by using identifying information (eg, name, sex, and birth date). The research team reviewed the algorithm’s output (possible matches) and identified a threshold above which it was estimated that a true match occurred. To improve match accuracy, we developed a program to identify false-positive matches (eg, 2 youth in the Medicaid records matched to a single criminal record) and to help correctly link multiple Medicaid or criminal records belonging to 1 youth. We conducted a one-by-one review of all automated matches that had linked multiple individuals with multiple records until all sample youth could be assigned a unique study identifier. Measures Demographic Information Youth sex, age, and race and/or ethnicity (white, African American, Hispanic, or other/unknown) were gathered from electronic health records. Youth age was calculated by using the date of first Medicaid enrollment during the study period (2004–2011). Medicaid Enrollment Monthly Medicaid enrollment tables were gathered from the Indiana Office of Medicaid Policy and Planning to assess enrollment (dis) continuity, expressed as the number and length of any gaps in enrollment. Youth enrollment by each study period month was characterized as a dichotomous (yes/no) variable, beginning with the youth’s first month of enrollment in Medicaid during the study period. If any youth was first enrolled in Medicaid during the study period but before age 12, AAlSMA et al2 Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 by guest on April 5, 2021www.aappublications.org/newsDownloaded from the Medicaid enrollment start date was imputed at the youth’s 12th birthday. Right censoring occurred when youth reached age 19 during the study period. Juvenile Justice System Involvement Arrest typically marks the beginning of an individual’s involvement in the justice system. Because this is a cohort study of all Marion County youth from 2004 to 2011, JIY represent youth at various stages of system involvement: arrested youth, youth on probation, youth court-ordered to services, or youth detained or incarcerated in juvenile or adult facilities. Health Care Use Service use was identified by using Medicaid claims data. WC visits were identified by using International Classification of Diseases, Ninth Revision codes: V20.2, V20.3, V70.0, V70.3, V70.5, V70.6, V70.8, and V70.9. Health care encounters with the care location “emergency department” were considered ED visits in the analyses. analysis Descriptive statistics for all youth were calculated by using demographic characteristics recorded at participants’ first Medicaid enrollment during the study period. Differences between JIY and NJIY were evaluated with χ2 tests for categorical variables and Student’s t tests for continuous variables. Zero- inflated negative binomial models were used to estimate rates of WC visits and ED visits per person year for JIY and NJIY. Logarithmic transformed lengths of observation for individual subjects were incorporated into the analysis as offset parameters. We assessed Medicaid enrollment continuity in several ways. First, we described the number and average length of gaps in Medicaid coverage. Second, we compared the average Medicaid enrollment length for JIY and NJIY by using t tests. Lastly, we calculated the average annual proportion of Medicaid enrollment and compared JIY and NJIY enrollment by using t tests. Multivariable logistic regression models were conducted to investigate the association between WC and ED visits and youth involvement in the justice system. These models were adjusted for youth age at first Medicaid enrollment, race and/or ethnicity, sex, time in the study period, and average annual proportion of Medicaid enrollment. Results The sample included 88 647 adolescents enrolled in Medicaid in Marion County, Indiana, at any time during the study period (January 1, 2004–December 31, 2011). The majority of these youth (n = 67 985, 76.7%) were not involved in the juvenile justice system during the study period. JIY, compared with NJIY, were more likely to be male, African American, and older at the time of their first enrollment in Medicaid during the study period (see Table 1). During the study period, JIY contributed 86 130.94 person years of Medicaid enrollment, 35 357 WC visits, and 35 077 ED visits. NJIY contributed 221 228.14 person years of Medicaid enrollment, 110 983 WC visits, and 69 848 ED visits. Rates per person year of WC and ED visits were calculated by using zero-inflated negative binomial regression. The rate of WC visits per person year was lower for JIY than for NJIY (JIY: 0.46 versus NJIY: 0.56; P ≤ .01; see Table 2). The rate of ED visits per person year, however, was higher for JIY than for NJIY (JIY: 0.44 versus NJIY: 0.37; P ≤ .01). Medicaid enrollment continuity differed greatly between NJIY and JIY. Once enrolled in Medicaid, NJIY were more likely than JIY to have 0 gaps in Medicaid coverage during the study period (46.2% of JIY versus 33.1% of NJIY; P < .0001), meaning that nearly half of NJIY were continuously enrolled in Medicaid during the study period. We found that NJIY were also enrolled in Medicaid for a greater annual proportion (NJIY: 9.6 ± 3.3 months per year versus JIY: 9.2 ± 3.2 months per year; P ≤ .01). NJIY also experienced fewer gaps than JIY, and their gaps in coverage were shorter (average gap length for NJIY: 8.3 ± 14.2 months versus JIY: 9.5 ± 13.4 months; P < .0001). In contrast, when the longest period of Medicaid enrollment per person was assessed (which included youth who were continuously enrolled), PEDIATRICS Volume 140, number 5, November 2017 3 Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 table 1 Sample Demographics at Youth’s First Enrollment in Medicaid, January 1, 2004–December 31, 2011, by Justice System Involvement (N = 88 647) JIY (N = 20 668) NJIY (N = 67 985) Sex (%) Male 12 263 (59.4%) 31 014 (45.6%) Female 8374 (40.5%) 36 971 (54.4%) Unknown 25 (0.1%) 0 (0.0%) Race (%) African American 12 235 (59.2%) 32 438 (47.1%) White 6686 (32.4%) 25 694 (37.8%) Hispanic 847 (4.1%) 7669 (11.3%) Other/unknown 894 (4.3%) 2184 (3.2%) Mean age (SD) 13.9 (1.9) 13.3 (1.8) table 2 Yearly Rate (SD) of WC and ED Use by Justice System Involvement JIY (N = 20 668) NJIY (N = 67 985) P WC visit 0.46 (0.005) 0.56 (0.003) <.01 ED visit 0.44 (0.005) 0.37 (0.003) <.01 by guest on April 5, 2021www.aappublications.org/newsDownloaded from on average, JIY had longer individual periods of enrollment in Medicaid in comparison with NJIY (JIY: 27.9 ± 21.8 months versus NJIY: 24.3 ± 20.2 months; P < .0001). In light of the differences in Medicaid enrollment continuity between JIY and NJIY, we explored the relationships between Medicaid coverage and the outcomes of interest: WC and ED visit use (see Fig 1). For WC visits, NJIY had significantly greater annual rates of use than JIY (P < .01), if they were continuously covered by Medicaid. For ED visits, JIY had significantly greater annual use rates than NJIY (P < .01), regardless of Medicaid enrollment continuity. These results (Fig 1A) largely echo those presented in Table 2. When considering JIY and NJIY separately (Fig 1B), Medicaid enrollment continuity significantly impacted both WC and ED service utilization rates. Results of 2 multivariable logistic regression models (see Table 3) predicting WC and ED visits confirmed that NJIY were more likely than JIY to have WC visits (adjusted odds ratio: 1.095; 95% confidence interval [CI]: 1.053–1.138, P < .001) and were less likely to have ED visits (adjusted odds ratio: 0.604; 95% CI: 0.582–0.626, P < .001), after controlling for youth age, race and/or ethnicity, sex, average annual proportion of Medicaid enrollment, and total time in the study. Greater proportions of Medicaid coverage were generally associated with increased WC and ED visits. Further examination showed significant interactions between Medicaid coverage and justice system involvement for both WC and ED visits. For both types of visits, proportions of time of Medicaid coverage were positively associated with an increased likelihood of WC and ED visits. Magnitudes of Medicaid coverage associations with WC visits ranged from 1.027 (95% CI: 1.026–1.028) in NJIY to 1.030 (95% CI: 1.028–1.031) in JIY; magnitudes of Medicaid coverage associations with ED visits ranged from 1.026 (95% CI: 1.025–1.027) in JIY to 1.020 (95% CI: 1.020–1.021) in NJIY. DIscussIOn The purpose of this study was to compare the preventive health care use of JIY and NJIY along 3 interrelated indicators: rates of WC visits, ED visits, and Medicaid coverage continuity. JIY, compared with NJIY, make up an especially vulnerable population characterized AAlSMA et al4 Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 FIGuRe 1 Annual rates of WC and ED visits. A, Comparison of annual rates of WC and ED visits between JIY and NJIY stratified by Medicaid enrollment continuity (N = 88 647). B, Comparison of annual rates of WC and ED visits between youth with continuous Medicaid coverage and noncontinuous coverage among JIY (N = 20 668) and NJIY (N = 67 985). table 3 Multivariable logistic Regression Analyses Predicting WC and ED Visits (N = 88 647) Characteristics WC Visits ED Visits Adjusted Odds Ratio (95% CI) P Adjusted Odds Ratio (95% CI) P Youth age at first Medicaid enrollment, y 0.762 (0.755–0.769) .019 0.972 (0.964–0.81) <.001 Race (versus white) African American 1.294 (1.252–1.337) <.001 0.620 (0.600–0.640) <.001 Hispanic 0.774 (0.733–0.817) <.001 0.485 (0.46–0.51) <.001 Other/unknown 1.807 (1.659–1.968) <.001 0.552 (0.50–0.60) <.001 Male (versus female) 1.032 (1.001–1.064) .044 1.008 (0.979–1.038) .603 Time in study, y 1.030 (1.029–1.031) <.001 1.031 (1.031–1.032) <.001 Proportion of Medicaid coverage, % 1.027 (1.027–1.028) <.001 1.022 (1.021–1.022) <.001 NJIY (versus JIY) 1.095 (1.053–1.138) <.001 0.604 (0.582–0.626) <.001 by guest on April 5, 2021www.aappublications.org/newsDownloaded from by risk factors (ie, poverty, minority race and/or ethnicity) associated with both gaps in insurance coverage and low rates of preventive care use.22 However, comparisons of actual health insurance coverage and care use rates between comparable groups of JIY and NJIY have rarely been documented. The results of this study fill this gap in the literature. The study design allowed us to account for several risk factors (potential confounds) associated with low rates of preventive care use; internal validity was bolstered by our focus on 1 cohort of Medicaid- enrolled youth from a single county. JIY evidenced poorer preventive care along all 3 indicators when compared with NJIY. Namely, JIY exhibited more disrupted health insurance coverage, fewer WC visits, and greater use of ED services. These findings support our hypotheses, which were drawn from previous research on the relationships among insurance status, preventive primary care use, and ED services use. Medicaid enrollment continuity JIY were, on average, enrolled in Medicaid for longer continuous stretches than NJIY. However, insurance coverage among JIY youth was significantly more fractured, with JIY more likely than NJIY to experience 2 or more gaps in coverage. Compared with NJIY, the average length of a gap in insurance coverage was also longer for JIY. More and longer gaps in insurance coverage experienced by JIY is evidence of churning, or frequent movement between publicly insured, privately insured, and uninsured status.23 Reasons for churning include changes in insurance eligibility (eg, increased income, incarceration), acquisition of insurance from another source, or dropout of eligible recipients (eg, failing to complete required reenrollment applications). Churning for Medicaid enrollees most often reflects dropout, meaning that individuals move from public insurance rolls to uninsured status, despite continued eligibility for coverage.13 That JIY have more and longer periods without health insurance coverage is particularly problematic for this vulnerable group, because uninsured youth are less likely to use recommended preventive primary care services.15, 16, 24 Indeed, findings from the current study follow expected patterns of preventive primary care use when comparing JIY and NJIY. Wc Visits A smaller proportion of JIY (46%) used a WC visit when compared with NJIY (56%). This finding remained even after controlling for youth demographics (ie, age, sex, and race and/or ethnicity) and annual proportion of Medicaid enrollment. Studying WC visit rates is important because other researchers have shown that youth who have access to preventive services with a primary care physician are less likely to rely on the ED for nonurgent care.20, 21 For example, in a 1-year study of children’s health care use in Yuma County, Arizona, youth who received a visit with a primary care doctor had significantly decreased odds of using ED services within the same year, especially if the youth were uninsured.20 The authors of studies conducted among adult patients have similarly found that those who face barriers to using primary care are more likely to rely on ED services.25 eD Visits JIY in the current sample were more likely than NJIY to visit the ED (44% vs 37%), providing empirical support for the hypothesis that JIY underuse preventive primary care while overusing ED services. One of the few previous studies comparing ED use by JIY and NJIY revealed that JIY are more likely to be hospitalized for ED visits related to intentional injuries, 6 but the authors of recent public health research have identified similar patterns of ED use among victims and perpetrators of violence.26 limitations This study is unique in that rates of Medicaid coverage, WC visits, and ED visits have not been assessed among JIY populations, especially not in comparison with a community-based sample of NJIY. Our use of 8 years of administrative health and criminal records provides exceptional breadth to our understanding of JIY health and should guide future efforts to understanding health care use patterns by using existing records. However, the current study is not without limitations. As we relied on administrative data for our findings, we did not attempt to assess how individual-level factors, such as family dysfunction, contribute to use differences. Similarly, without any way to account for different policing strategies across the county, the risk of being a JIY may not be consistent across the sample, even after controlling for youth demographics. The data were also extracted from 1 county only, meaning that these findings may not account for potential variation found across other geographic regions, especially because Medicaid administration is determined on a state-by-state basis. Other unmeasured correlates of preventive health care access and use (including availability of health care providers, access to alternate sources of care, and local or state health policy) may contribute to observed use differences between JIY and NJIY. For example, this study only included youth with access to public health insurance, and health care use rates may be different among privately insured youth. We were not able to capture the reasons for disenrollment from Medicaid, which could also have bearing on use patterns. Information about changes PEDIATRICS Volume 140, number 5, November 2017 5 Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 by guest on April 5, 2021www.aappublications.org/newsDownloaded from in Medicaid eligibility, different benefits of Medicaid enrollment for JIY, and out-of-home placements are some factors that may have improved our understanding of why JIY and NJIY differed in health insurance coverage. Finally, because these data were gathered before the Affordable Care Act was implemented, future researchers must consider the impact of federal policy change on insurance coverage and retention. cOnclusIOns The findings reported here suggest that, as expected, JIY fair worse than NJIY on 3 interrelated health indicators: WC visits, ED services use, and insurance status. Thus, interventions to improve preventive health care use, which specifically target JIY, are needed. Just as the 3 health indicators are related but distinct, the targets of current interventions to improve youth use of preventive primary care are often multifaceted. School health centers and similar school-based health initiatives are among such efforts, with promising implications for youth health.27 – 29 School health centers typically provide preventive care, offering services such as immunizations, testing for pregnancy and sexually transmitted infections, asthma management, and basic mental health counseling.29 In a retrospective cohort study of adolescent health care use in Denver, youth who had received care at a school-based health center (regardless of insurance status) were both more likely to use primary care and less likely to use ED services than youth who used only urgent care clinics.30 Other interventions are designed to improve the quality of, and access to, preventive primary care. Although the current study showed that JIY used fewer WC visits than NJIY, JIY are still accessing preventive care. Thus, interventions aimed at improving the quality of primary care for this group of high-risk youth may be feasible and impactful. One such intervention is use of collaborative care related to adolescent depression and substance use, 31 2 disorders that are common among JIY. To address access to care, several states have expanded eligibility for Medicaid or auto-enrolled eligible patients, which should reduce churning and provide greater access to affordable care.14, 23 Efforts to improve access to primary care for individuals in the justice system have targeted offenders’ release from secure confinement, enrolling prisoners in Medicaid or connecting them to a primary care physician as part of standard facility discharge planning.32, 33 Given the dramatic impact of continuous Medicaid coverage on preventive care utilization among JIY (Fig 1B), and in light of previous calls to improve Medicaid coverage for individuals involved in the justice system, 32, 33 policy change to increase Medicaid enrollment for JIY remains a priority. acKnOWleDGMents The authors wish to thank Joe Moser, Director of Indiana Medicaid, and Judge Marilyn Moores, Marion County Superior Court, for their support in completing this project. ReFeRences 1. Brame R, Turner MG, Paternoster R, Bushway SD. Cumulative prevalence of arrest from ages 8 to 23 in a national sample. Pediatrics. 2012;129(1): 21–27 2. Teplin lA, Abram KM, McClelland GM, Dulcan MK, Mericle AA. Psychiatric disorders in youth in juvenile detention. Arch Gen Psychiatry. 2002;59(12):1133–1143 3. Teplin lA, Elkington KS, McClelland GM, Abram KM, Mericle AA, Washburn JJ. Major mental disorders, substance use disorders, comorbidity, and HIV-AIDS risk behaviors in juvenile detainees. Psychiatr Serv. 2005;56(7):823–828 4. Teplin lA, Welty lJ, Abram KM, Dulcan MK, Washburn JJ. Prevalence and persistence of psychiatric disorders in youth after detention: a prospective longitudinal study. Arch Gen Psychiatry. 2012;69(10):1031–1043 5. Romero EG, Teplin lA, McClelland GM, Abram KM, Welty lJ, Washburn JJ. A longitudinal study of the prevalence, development, and persistence of HIV/sexually transmitted infection risk behaviors in delinquent youth: implications for health care in the community. Pediatrics. 2007;119(5). AAlSMA et al6 Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 Copyright © 2017 by the American Academy of Pediatrics FInancIal DIsclOsuRe: The authors have indicated they have no financial relationships relevant to this article to disclose. FunDInG: Funded by grants from the Department of Health and Human Services, Health Resources and Services Administration, Maternal and Child Health Research Program (R40MC08721), and the Agency for Healthcare Research and Quality (R01HS024296; R01HS023318). POtentIal cOnFlIct OF InteRest: The authors have indicated they have no potential conflicts of interest to disclose. cOMPanIOn PaPeR: A companion to this article can be found online at www. pediatrics. org/ cgi/ doi/ 10. 1542/ peds. 2017- 2800. abbReVIatIOns CI: confidence interval ED: emergency department JIY: justice-involved youth NJIY: non–justice-involved youth WC: well child by guest on April 5, 2021www.aappublications.org/newsDownloaded from http://www.pediatrics.org/cgi/doi/10.1542/peds.2017-2800 Available at: www. pediatrics. org/ cgi/ content/ full/ 119/ 5/ e1126 6. Conseur A, Rivara FP, Emanuel I. Juvenile delinquency and adolescent trauma: how strong is the connection? Pediatrics. 1997;99(3). Available at: www. pediatrics. org/ cgi/ content/ full/ 99/ 3/ e5 7. Braverman PK, Murray PJ; Committee on Adolescence. Health care for youth in the juvenile justice system. Pediatrics. 2011;128(6):1219–1235 8. lambie I, Randell I. The impact of incarceration on juvenile offenders. Clin Psychol Rev. 2013;33(3):448–459 9. Pajer KA, Kelleher K, Gupta RA, Rolls J, Gardner W. Psychiatric and medical health care policies in juvenile detention facilities. J Am Acad Child Adolesc Psychiatry. 2007;46(12):1660–1667 10. Maciosek MV, Coffield AB, Flottemesch TJ, Edwards NM, Solberg lI. Greater use of preventive services in U.S. health care could save lives at little or no cost. Health Aff (Millwood). 2010;29(9):1656–1660 11. lawrence R, Gootman J, Sim l. Adolescent Health Services: Missing Opportunities. Washington, DC: The National Academies Press; 2009 12. Duncan PM, Garcia AC, Frankowski Bl, et al. Inspiring healthy adolescent choices: a rationale for and guide to strength promotion in primary care. J Adolesc Health. 2007;41(6): 525–535 13. Sommers BD. From Medicaid to uninsured: drop-out among children in public insurance programs. Health Serv Res. 2005;40(1):59–78 14. Sommers BD. Why millions of children eligible for Medicaid and SCHIP are uninsured: poor retention versus poor take-up. Health Aff (Millwood). 2007;26(5):w560–w567 15. long SK, Coughlin T, King J. How well does Medicaid work in improving access to care? Health Serv Res. 2005;40(1):39–58 16. Duderstadt KG, Hughes DC, Soobader MJ, Newacheck PW. The impact of public insurance expansions on children’s access and use of care. Pediatrics. 2006;118(4):1676–1682 17. Simon AE, Schoendorf KC. Medicaid enrollment gap length and number of Medicaid enrollment periods among US children. Am J Public Health. 2014;104(9):e55–e61 18. Alegria M, lin J, Chen C-N, Duan N, Cook B, Meng X-l. The impact of insurance coverage in diminishing racial and ethnic disparities in behavioral health services. Health Serv Res. 2012;47(3 pt 2):1322–1344 19. luo X, liu G, Frush K, Hey lA. Children’s health insurance status and emergency department utilization in the United States. Pediatrics. 2003;112(2):314–319 20. Johnson WG, Rimsza ME. The effects of access to pediatric care and insurance coverage on emergency department utilization. Pediatrics. 2004; 113(3 pt 1):483–487 21. Brousseau DC, Gorelick MH, Hoffmann RG, Flores G, Nattinger AB. Primary care quality and subsequent emergency department utilization for children in Wisconsin Medicaid. Acad Pediatr. 2009;9(1):33–39 22. Newacheck PW, Hung YY, Park MJ, Brindis CD, Irwin CE Jr. Disparities in adolescent health and health care: does socioeconomic status matter? Health Serv Res. 2003;38(5): 1235–1252 23. Swartz K, Short PF, Graefe DR, Uberoi N. Reducing Medicaid churning: extending eligibility for twelve months or to end of calendar year is most effective. Health Aff (Millwood). 2015;34(7):1180–1187 24. Hadley J. Sicker and poorer—the consequences of being uninsured: a review of the research on the relationship between health insurance, medical care use, health, work, and income. Med Care Res Rev. 2003;60(suppl 2):S3–S75 25. Sarver JH, Cydulka RK, Baker DW. Usual source of care and nonurgent emergency department use. Acad Emerg Med. 2002;9(9):916–923 26. Daday JK, Broidy lM, Crandall CS. Emergency department utilization among victims and offenders involved in non-lethal violence. Soc Sci Med. 2008;66(5):1197–1203 27. Bersamin M, Garbers S, Gold MA, et al. Measuring success: evaluation designs and approaches to assessing the impact of school-based health centers. J Adolesc Health. 2016;58(1):3–10 28. Gibson EJ, Santelli JS, Minguez M, lord A, Schuyler AC. Measuring school health center impact on access to and quality of primary care. J Adolesc Health. 2013;53(6):699–705 29. Knopf JA, Finnie RKC, Peng Y, et al; Community Preventive Services Task Force. School-based health centers to advance health equity: a community guide systematic review. Am J Prev Med. 2016;51(1):114–126 30. Allison MA, Crane lA, Beaty Bl, Davidson AJ, Melinkovich P, Kempe A. School-based health centers: improving access and quality of care for low-income adolescents. Pediatrics. 2007;120(4). Available at: www. pediatrics. org/ cgi/ content/ full/ 120/ 4/ e887 31. Richardson lP, ludman E, McCauley E, et al. Collaborative care for adolescents with depression in primary care: a randomized clinical trial. JAMA. 2014;312(8):809–816 32. Cuddeback GS, Morrissey JP, Domino ME. Enrollment and service use patterns among persons with severe mental illness receiving expedited Medicaid on release from state prisons, county jails, and psychiatric hospitals. Psychiatr Serv. 2016;67(8):835–841 33. Gupta RA, Kelleher KJ, Pajer K, Stevens J, Cuellar A. Delinquent youth in corrections: Medicaid and reentry into the community. Pediatrics. 2005;115(4):1077–1083 PEDIATRICS Volume 140, number 5, November 2017 7 Aalsma et al Preventive Care Use Among Justice-Involved and Non–Justice-Involved Youth 2017 https://doi.org/10.1542/peds.2017-1107 5 Pediatrics ROUGH GALLEY PROOF November 2017 140 by guest on April 5, 2021www.aappublications.org/newsDownloaded from www.pediatrics.org/cgi/content/full/119/5/e1126 www.pediatrics.org/cgi/content/full/119/5/e1126 www.pediatrics.org/cgi/content/full/99/3/e5 www.pediatrics.org/cgi/content/full/99/3/e5 www.pediatrics.org/cgi/content/full/120/4/e887 www.pediatrics.org/cgi/content/full/120/4/e887 www.pediatrics.org/cgi/content/full/120/4/e887 DOI: 10.1542/peds.2017-1107 originally published online October 2, 2017; 2017;140;Pediatrics Wanzhu Tu, Marc B. Rosenman and Sarah E. Wiehe Matthew C. Aalsma, Valerie R. Anderson, Katherine Schwartz, Fangqian Ouyang, Justice-Involved Youth−Preventive Care Use Among Justice-Involved and Non Services Updated Information & http://pediatrics.aappublications.org/content/140/5/e20171107 including high resolution figures, can be found at: References http://pediatrics.aappublications.org/content/140/5/e20171107#BIBL This article cites 32 articles, 11 of which you can access for free at: Subspecialty Collections icine_sub http://www.aappublications.org/cgi/collection/adolescent_health:med Adolescent Health/Medicine following collection(s): This article, along with others on similar topics, appears in the Permissions & Licensing http://www.aappublications.org/site/misc/Permissions.xhtml in its entirety can be found online at: Information about reproducing this article in parts (figures, tables) or Reprints http://www.aappublications.org/site/misc/reprints.xhtml Information about ordering reprints can be found online: by guest on April 5, 2021www.aappublications.org/newsDownloaded from http://http://pediatrics.aappublications.org/content/140/5/e20171107 http://pediatrics.aappublications.org/content/140/5/e20171107#BIBL http://www.aappublications.org/cgi/collection/adolescent_health:medicine_sub http://www.aappublications.org/cgi/collection/adolescent_health:medicine_sub http://www.aappublications.org/site/misc/Permissions.xhtml http://www.aappublications.org/site/misc/reprints.xhtml DOI: 10.1542/peds.2017-1107 originally published online October 2, 2017; 2017;140;Pediatrics Wanzhu Tu, Marc B. Rosenman and Sarah E. Wiehe Matthew C. Aalsma, Valerie R. Anderson, Katherine Schwartz, Fangqian Ouyang, Justice-Involved Youth−Preventive Care Use Among Justice-Involved and Non http://pediatrics.aappublications.org/content/140/5/e20171107 located on the World Wide Web at: The online version of this article, along with updated information and services, is by the American Academy of Pediatrics. All rights reserved. Print ISSN: 1073-0397. the American Academy of Pediatrics, 345 Park Avenue, Itasca, Illinois, 60143. Copyright © 2017 has been published continuously since 1948. Pediatrics is owned, published, and trademarked by Pediatrics is the official journal of the American Academy of Pediatrics. A monthly publication, it by guest on April 5, 2021www.aappublications.org/newsDownloaded from http://pediatrics.aappublications.org/content/140/5/e20171107 
work_v22t63w64rcovdlpccxxj73vdy	----	IRQR1201_01_Wyatt 1..4 Edinburgh Research Explorer Doing justice Citation for published version: Wyatt, J & Diversi, M 2019, 'Doing justice: An introduction to the special issue: "Trump, Brexit and the rise of the global right"', International Review of Qualitative Research, vol. 12, no. 1, pp. 1-4. https://doi.org/10.1525/irqr.2019.12.1.1 Digital Object Identifier (DOI): 10.1525/irqr.2019.12.1.1 Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Published In: International Review of Qualitative Research Publisher Rights Statement: Published as Doing Justice Introduction to the Special Issue Jonathan Wyatt, Marcelo Diversi International Review of Qualitative Research, Vol. 12 No. 1, Spring 2019; (pp. 1-4) DOI: 10.1525/irqr.2019.12.1.1. © 2019 by the Regents of the University of California/Sponsoring Society or Association. Copying and permissions notice: Authorization to copy this content beyond fair use (as specified in Sections 107 and 108 of the U. S. Copyright Law) for internal or personal use, or the internal or personal use of specific clients, is granted by [the Regents of the University of California/on behalf of the Sponsoring Society] for libraries and other users, provided that they are registered with and pay the specified fee via Rightslink® or directly with the Copyright Clearance Center. General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1525/irqr.2019.12.1.1 https://doi.org/10.1525/irqr.2019.12.1.1 https://www.research.ed.ac.uk/portal/en/publications/doing-justice(079b4ac4-bd76-4fba-b0b3-11309314c27a).html Doing Justice Introduction to the Special Issue Jonathan Wyatt and Marcelo Diversi Abstract In this article we argue that the contributions to this special issue are examples of the ‘acts of activism’ D. Soyini Madison (2010) speaks of. Such acts, though always late, are necessary and urgent as qualitative researchers seek for their work to do justice. Keywords: acts of activism, urgency, justice, qualitative We are always behind, always late. We are late, ontologically, as the ‘we’ we think we are notice ourselves in the break of the continuous (Manning, 2013), and we are late, historically, as we look back. ‘Moral lateness’, as Mark Freeman (2010, p. 67) argues, brings with it the risk as we consider ‘what happened’ that we may deceive ourselves or, perhaps worse, see our true culpability with the clarity we did not possess at the time. From either perspective, we can never keep up. This collection, in these senses, is late. The world has moved, is moving; we have moved, are moving. The political events the contributors to this collection engage with dominate the landscape we inhabit: gross apparitions, whose advent some, in some parts of the world, might have struggled to believe at first, rubbing their eyes when they first appeared, are now an undeniable, looming presence, even if shock and incredulity remain. For others, such happenings have always been there and what has changed is they are now being echoed in the privileged West. But lateness brings with it the invitation of urgency, an urgency that presses upon us, spurring us to respond, to catch up, calling us out of our inertia and despair and demanding, at the very least, that we pay more attention. Those of us from nations and cultures destroyed and reinvented by colonization may have been less surprised by Brexit or Trump’s election in the United States than our colleagues from advan- taged segments of Western societies. Many continue to live and labour under author- itarian and populist regimes decades and centuries after independence, even where some nominal versions of democracy exist. Still, we too were surprised by both Brexit and Trump’s election in 2016. We did not think that such a (re)turn to mean-spirited International Review of Qualitative Research, Vol. 12, No. 1, Spring 2019, pp. 1–4. ISSN 1940-8447, eISSN 1940-8455. © 2019 International Institute for Qualitative Research, University of Illinois, Urbana-Champaign. All rights reserved. Request permission to photocopy or reproduce article content at the University of California Press’s Reprints and Permissions web page, https://www.ucpress.edu/journals/reprints-permissions. DOI: https://doi.org/10.1525/irqr.2019.12.1.1. 1 https://www.ucpress.edu/journals/reprints-permissions https://doi.org/10.1525/irqr.2019.12.1.1 and exclusionary politics would happen again in the longest-lasting democracies in the world. Perhaps too many of us took for granted that democracy and unconditional inclu- sion are natural destinations for human civilization, albeit arduous and slow to reach. The rise of the global right is now challenging such assumptions, hopes, and dreams. But perhaps this contemporary institutionalized turn to exclusion and malevolence can bring more of us together in resistance, love, courage, and collective imagination about how to reconcile, heal, and move forward as one large human and more-than-human family. We think every piece in this collection wrestles with how to move forward with greater care, attention, and compassion, even if the path is hard to see at the moment. We write this introduction over a year after the initial prompt for this special issue, a call from Jonathan to qualitative researchers gathering for the inaugural European Congress of Qualitative Inquiry in Leuven, Belgium, in February 2017, followed by a similar call from him to those attending the International Congress of Qualitative Inquiry (ICQI) in Urbana-Champaign, Illinois, USA, in May 2017. The May call (the February call updated following the French presidential election) read as follows: In June 2016, the UK voted, against most expectations, to leave the European Union, following a divisive, threatening, unedifying referendum campaign. In November 2016 the US elected Donald Trump as President, also against expectations and also amidst hate-filled rhetoric. Brexit, the election of Trump, the rise of support for Le Front National in France’s presidential election this month, established authoritarian societies such as Putin’s Russia, Erdoğan’s Turkey and Orbán’s Hungary that maintain certain democratic trappings as a convenient front, and more, all speak to the spread of a global right-wing conservative authoritarian political movement. ICQI delegates are in the thick of the impact of this movement. We have delegates from nations that have already experienced their version of Trump and what this authoritarian turn means for critical inquiry, for the assault on democratic ideals, the war on dissent, attacks on young people, women, minorities, healthcare and the environment, the criminalization of social problems, and the militarization of everyday life. The politics may be local, but the power is global. What does all this mean for qualitative inquiry? What does this call forth from us? How does this rise of the right affect the way we think and write and carry ourselves within our institutions, amongst our scholarly communities and 2 JONATHAN WYATT, MARCELO DIVERSI in relation to our work? How does it inform how we theorise and produce knowledge? How does it mobilise us? As Rosi Braidotti writes in the wake of Trump’s election: ‘We need to compose together a plane of agreement about what our shared hopes and aspirations are. We need to agree on what we want to build together as an alternative. Critique and creation work hand-in-hand’. (Braidotti, 2016) This plenary invites scholars from around the globe to respond to the impact of Trump, Brexit, and the global rise of the right to find ways to articulate this impact and where we go from here. We will present for no more than 8 minutes each in response to these three questions: 1. What impact is the ‘rise of the right’ having upon me? Where is it leaving/ taking me? What is it evoking? 2. How am I thinking about, or rethinking, (my) inquiry as a consequence? 3. Where do we go from here? What does this community do now? We will speak in turn, then pause and in the time remaining gather others’ thoughts, responses, echoes. This special issue brings the sets of contributions from both events together (bar one absentee), with the articles drawing from a range of perspectives, backgrounds, experiences, beliefs, disciplines, theoretical positions, and more. Many contributors have expanded and/or revised their papers, each continuing to be prompted (differ- ently) by the three questions contained in the calls. And we were graced with authors who showed us new ways to move forward in hope, always responding to us with kindness and understanding in our many requests for revision, clarification, and elaboration of thought. We finalize this collection more hopeful than when the first calls for papers were made. Throughout the process of putting this issue together, we, editors and contribu- tors alike, have been aware of our desire for our work to do justice. Not with a sense of grandiosity but with a sense of responsibility: to do what we can; to do, perhaps, just a little justice. Justice to our research, to qualitative inquiry, to ourselves, and to the wider import of the political events framing this collection. We have been aware, too, of the aforementioned sense of urgency, the aspiration to be on time. This collection can never be that, but it can feed into, generate, stimulate, fuel our conversations; it can speak from where it is to where we will DOING JUSTICE 3 become, in a ‘gesture of encounter . . . thinking collectively at its limit’ (Manning, 2016, p. ix) as together we strive towards the im/possibility of being able to look back and know we have neither deceived ourselves nor been culpable, rather know we were active not complacent, that we and others undertook – and continued to undertake, and continued and continued, persistent and relentless – the ‘acts of activism’ (Madison, 2010) that called us. References Braidotti, R. (2016, November). Don’t agonize, organize. E-flux conversations. Retrieved from http://conversations.e-flux.com/t/rosi-braidotti-don-t-agonize-organize/5294 Freeman, M. (2010). Hindsight: The promise and peril of looking backward. Oxford, England: Oxford University Press. Madison, D. S. (2010). Acts of activism: Human rights as radical performance. New York, NY: Cambridge University Press. Manning, E. (2013). Always more than one: Individuation’s dance. Durham, NC: Duke University Press. Manning, E. (2016). The minor gesture. Durham, NC: Duke University Press. About the Authors Jonathan Wyatt is professor of qualitative inquiry and director of the Centre for Creative- Relational Inquiry at the University of Edinburgh. His current book, Therapy, Stand-up, and the Gesture of Writing: Towards Creative-Relational Inquiry, is published by Routledge. Marcelo Diversi is professor of human development at Washington State University Vancouver, USA. He teaches and writes with the hope that critical inquiry matters enough to help us expand the circle of Us around the globe. 4 JONATHAN WYATT, MARCELO DIVERSI << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Gray Gamma 2.2) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Warning /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness false /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages false /ColorImageMinResolution 266 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 200 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.00000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages false /GrayImageMinResolution 266 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 200 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.00000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages false /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages false /MonoImageMinResolution 900 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Average /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.00000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox false /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputConditionIdentifier (CGATS TR 001) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /CreateJDFFile false /Description << /ENU <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> >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AllowImageBreaks true /AllowTableBreaks true /ExpandPage false /HonorBaseURL true /HonorRolloverEffect false /IgnoreHTMLPageBreaks false /IncludeHeaderFooter false /MarginOffset [ 0 0 0 0 ] /MetadataAuthor () /MetadataKeywords () /MetadataSubject () /MetadataTitle () /MetricPageSize [ 0 0 ] /MetricUnit /inch /MobileCompatible 0 /Namespace [ (Adobe) (GoLive) (8.0) ] /OpenZoomToHTMLFontSize false /PageOrientation /Portrait /RemoveBackground false /ShrinkContent true /TreatColorsAs /MainMonitorColors /UseEmbeddedProfiles false /UseHTMLTitleAsMetadata true >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /BleedOffset [ 9 9 9 9 ] /ConvertColors /ConvertToRGB /DestinationProfileName (sRGB IEC61966-2.1) /DestinationProfileSelector /UseName /Downsample16BitImages true /FlattenerPreset << /ClipComplexRegions true /ConvertStrokesToOutlines false /ConvertTextToOutlines false /GradientResolution 300 /LineArtTextResolution 1200 /PresetName ([High Resolution]) /PresetSelector /HighResolution /RasterVectorBalance 1 >> /FormElements true /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles true /MarksOffset 9 /MarksWeight 0.125000 /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PageMarksFile /RomanDefault /PreserveEditing true /UntaggedCMYKHandling /UseDocumentProfile /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] /SyntheticBoldness 1.000000 >> setdistillerparams << /HWResolution [288 288] /PageSize [612.000 792.000] >> setpagedevice 
work_v4joxbkhfre45oumobnsyyp7tu	----	Nearsighted Justice w o r k i n g p a p e r F E D E R A L R E S E R V E B A N K O F C L E V E L A N D 03 04 Nearsighted Justice by Dan Bernhardt and Ed Nosal Working papers of the Federal Reserve Bank of Cleveland are preliminary materials circulated to stimulate discussion and critical comment on research in progress. They may not have been subject to the formal editorial review accorded official Federal Reserve Bank of Cleveland publications. The views stated herein are those of the authors and are not necessarily those of the Federal Reserve Bank of Cleveland or of the Board of Governors of the Federal Reserve System. Working papers are now available electronically through the Cleveland Fed’s site on the World Wide Web: www.clevelandfed.org. Dan Bernhardt is at the University of Illinois. Ed Nosal is at the Federal Reserve Bank of Cleveland and may be reached at ed.nosal@clev.frb.org or (216) 579-2021. The authors are grateful to the SSHRC for financial support. Much of the initial work was done when Nosal was visiting the Department of Economics at the National University of Singapore, when Bernhardt was at Queen’s University in Canada. Both authors appreciate the research environments provided. The authors thank a referee, the editor, Ron Giammarino, Burton Hollifield, Charlie Kahn and Steeve Mongrain for helpful comments. Working Paper 03-04 June 2003 Nearsighted Justice by Dan Bernhardt and Ed Nosal Chapter 11 structures complex negotiations between creditors and debtors that are overseen by a bankruptcy court. This paper identifies conditions under which it is optimal for the court to sometimes err in determining whether a firm should be liquidated. Such errors can affect the optimal action choices by both good and bad entrepreneurs. We first characterize the optimal error rate without renegotiation, providing conditions under which it is optimal for the court both to sometimes mistakenly liquidate “good firms,” but not “bad firms.” When creditors and debtors can renegotiate to circumvent an error-riven court and creditors have all of the bargaining power, we show that for a broad class of action choices, a blind court—one that ignores all information and hence is equally likely to liquidate a good firm as a bad one— is optimal. For another class of action choices, the optimal court design places the burden of proof on the entrepreneur. The robust feature is that in the optimal court design, the court sometimes errs in determining whether a firm should be liquidated. JEL Classification: G33, D80 Key Words: bankruptcy judge, moral hazard, adverse selection “It may not be optimal for justice to be blind, but it can help if she’s near-sighted.” “If parties can negotiate out of the way of blind justice, blind may be best.” 1 Introduction Chapter 11 structures complex negotiations between creditors and debtors that are overseen by a bankruptcy court. It is often unclear whether it is socially optimal for a bankrupt firm to be re-organized as a continuing entity, or whether it should be liquidated and the proceeds from liquidation distributed. If creditors and debtors cannot reach a settlement, then the bankruptcy court may impose one. This paper asks the following questions: Is it always optimal for the court to make the ‘right’ decision? If liquidation is efficient, should the court always mandate liquidation? If the bankrupt firm could be a profitable entity, should the court always allow it to re-structure under the existing management and continue? Or is it optimal for the court to sometimes make mistakes? How does the possibility of negotiated settlements affect the optimal design of the court? At one level the answers to these questions are straightforward. In a world where more accurate appraisals of a firm’s quality are more costly, the optimal allocation by a court of resources to evaluation of bankrupt firms will always reflect trade-offs between the marginal costs of better appraisals and the marginal benefit of decision-making based on more accurate appraisals. In this paper, we show that a court should also consider how the probability that it mis-identifies the quality of a bankrupt firm affects the ex ante behavior of management, and hence the probability that the firm becomes bankrupt. We develop a simple model that abstracts completely from the increasing marginal costs of more accurate appraisals in order to focus on how the probabilities that the court errs affect both the actions taken by management and outcomes. In a sparsely-specified model of entrepreneurial financewe showthat itmaybeoptimal for thecourt toerroccasionally. Weconsideranenvironment in which some entrepreneurs are better than others, and their skills are private information. It is efficient to liquidate an entrepreneur if and only if he is bad. Entrepreneurs also cannot be trusted. An entrepreneur can take hidden actions that affect (a) the probability that the firm cannot meet its loan obligations, (b) expected period entrepreneurial profits, and (c) expected period project revenues. We consider a broad variety of action interpre- tations. For example, the action choices could be investment choices; some investments might be risky negative NPV investments that pay off in non-bankruptcy states, but increase the probability of low revenue, bankruptcy outcomes. Alternatively, the action choices could correspond to effort, the choice of whether to steal from the firm, the choice of whether to have a fire sale of inventory 1 that raises current revenues at the expense of lower future revenues, and so on. There are at least three issues that might concern the court: 1. To identify which entrepreneurs are good and which ones are bad, so that bad firms, but not good ones can be liquidated. 2. To discourage socially inefficient action choices prior to bankruptcy. 3. To internalize the effect of the court design on the incentives of entrepreneurs and creditors to reach a settlement rather than leave the outcome to be decided by an error-prone court; and the consequences for ex ante actions. Unfortunately, these goals may conflict. One might like to use the threat of liquidation to dis- courage a good entrepreneur from taking negative NPV gambles or under-exerting effort. However, if a good entrepreneur is always identified as such by the bankruptcy court, then liquidation is not time consistent and, the entrepreneur realizing this, may take actions that reduce total surplus. Conversely, if a bad entrepreneur is always identified as such by the bankruptcy court, he may want to take actions that reduce the probability of entering bankruptcy. For example, this aversion to bankruptcy may cause bad entrepreneurs to over-exert, or to engage in fire sales that inefficiently increase current revenues, reducing the probability of bankruptcy in the current period at the expense of future revenues. It may be socially desirable to design the court so that it makes some mistakes, thereby reducing a bad entrepreneur’s aversion to bankruptcy. Thus, for both good entrepreneurs and bad, it may be optimal for the court to err occasionally: 1. The threat of mistakenly liquidating a good firm maybe sufficient to keep it from, for example, taking negative NPV gambles that raise the probability of entering bankruptcy. 2. The possibility that a bad firm is not identified by the court as such, may encourage a bad entrepreneur to take actions that land the firm in bankruptcy with a higher probability. The direct total surplus associated with the action that lands the firm in bankruptcy can be either positive (if it discourages fire sales), or negative (if it causes a bad entrepreneur to under- exert, or to choose excessively safe, lower NPV projects). Even if the direct surplus effect of the court design on action choice is negative, it may still be optimal for the court to err if, as a result, more bad entrepreneurs are liquidated at early dates. We characterize the optimal rate at which the court should make mistakes, both when creditors and entrepreneurs cannot bargain prior to the court’s decision, and when they may be able to 2 reach a settlement that would obviate the need for the court to make a decision. The analyses with and without renegotiation provide bounds on the benefits of a court that makes mistakes. When renegotiation is infeasible, any liquidating mistakes by the court must be incurred, making an error-riven court less attractive, although not necessarily sub-optimal. In contrast, the possibility of renegotiation allows the court to be designed as a potentially costly back-up threat, but one that, in equilibrium, need not be used: the threat that the court may make the wrong decision may be enough to encourage the parties to reach a settlement rather than take their chances with an unreliable court. The analysis with renegotiation is subtle, because the creditor does not know the entrepreneur’s type. The creditor must design payments that discourage a good entrepreneur from passing himself off as bad in order to receive a payment for liquidation, rather than make a payment to avoid going to court; and discourage a bad entrepreneur from passing himself off as good in order to circumvent the court and continue to operate. Stark results obtain when an entrepreneur and creditor can always renegotiate to circumvent an error-riven court. We characterize the optimal court design for two broad classes of action choices, those where it is optimal to 1. Discourage good entrepreneurs from taking actions that raise bankruptcy probabilities (theft, perk consumption, risky NPV investments, shirking), while discouraging bad entrepreneurs from taking actions that lower bankruptcy probabilities (fire sales, working too hard, exces- sively safe low NPV investments). 2. Discourage both good entrepreneurs and bad from taking actions that raise bankruptcy prob- abilities. For the first class of economies, a simple blind court design always dominates a court that never errs. Indeed, a blind court can sometimes implement the social optimum. That is, not only should the court always be near-sighted and err in the identification of entrepreneurs, but it should ignore all information, essentially making liquidation decisions on the basis of a fair coin flip. Even when a blind court cannot always induce ex ante entrepreneurs to take optimal actions, as long as it is optimal to encourage bad entrepreneurs to take actions that increase the chance that they are liquidated, then a blind court dominates a court that makes no errors. For the second class of economies, the social optimum can be implemented by placing a very stringent burden of proof on entrepreneurs. The burden of proof is stringent in the sense that, although a bad entrepreneur is never able to pass himself off as being good, a good entrepreneur may sometimes fail to convince that court that he is, in fact, good. 3 While the optimal court design differs depending on the nature of the action choice, the key features that they share are (i) the optimal court designs are simple, and easily implemented, and (ii) the optimal court design is one in which the court errs. Although we pose the model in the context of Chapter 11 bankruptcy, the problem that we analyze is more fundamental. The general formulation is a dynamic principal-agent costly state verificationenvironment inwhichtheagent’s type isunknown and theprincipal and agent’s interests are notaligned overaction choice. Theprincipal must choose thequalityof anevaluation technology to employ to verify the agent’s type, and the outcome of the evaluation affects whether the agent is retained. Sequential rationality implies that only the agent’s type is relevant for continuation decisions, but type-contingent continuation probabilities affect the agent’s decisions about which action to take. We could have presented our analysis in the context of shareholders in a firm who must decide whether to incur the costs of investigating whether or not to replace management. Shareholders do not want to incur the costs of investigating good managers, but they do want to discourage good managers from taking actions that lower the firm value (build personal empires, steal, etc.); shareholders may also want bad managers to take actions that lead to signals (lower immediate profits) indicating that the managers should be investigated and replaced. Shareholders may op- timally choose a noisy evaluation technology for managers, both for reasons of costs and because the possibility of mistakes may provide the right incentives for management: The noisy technology may help deter inefficient action choices by good managers, and help identify bad managers. So, too, the analysis could have been posed in a venture capital/equity finance context. Here, ongoing projects require a second-period injection of capital, and a financier must decide whether to provide the capital. The financier will set a revenue standard such that if revenues exceed that level, it will provide financing; while for lesser levels, the financier will evaluate the entrepreneur, and depending on the (noisy) signal received decide whether to provide the additional capital. Ex ante, the financier commits to the quality of the data on an entrepreneur that he will collect. Our paper is related to least four different literatures: the law and economics literature on optimal court design; the law and economics literature on contracting in the face of an imperfect and/or costly court; the bankruptcy literature; and the literature on the hold-up problem. We will discuss, in turn, how our paper contributes to each of these areas. Our paper contributes to the general law and economics literature on the optimal design of the court. Existing research on court design focuses on how best to design the court in order to elicit information from informed parties. This research builds on the “games of persuasion” literature introduced by Milgrom (1981) and Milgrom and Roberts (1986). Here, an interested party who 4 has private information attempts to influence an asymmetrically-informed decision maker. In law contexts, the interested parties are a plaintiff and a defendant in a trial and the decision maker is a judge. The judge, who wants to make the socially optimal decision, has to rule for one party, and his decision is based on the information that he receives. The issues that arise are: • Should a trial be based on an adversarial system, where the plaintiff and defendant present verifiable information to the judge and the judge makes his decision on the information presented; or should the judge try to uncover the information himself (Shin (1998))? • Should a judge restrict the information that can be presented (Fishman and Hagerty (1990))? • Which interested party must provide the evidence in order to “win” the trial; that is, who should bear the burden of proof (Hay and Spier (1997), Shin (1994), Sobel (1985))? In this literature, the answers to these questions ultimately depend upon the quality of the signal that the decision maker receives. For example, if restricting the information that the decision maker receives increases the quality or the informativeness of the signal, then information should be restricted, as this raises the probability of a correct decision. Most starkly, if, as in our model, the decision maker has access to a costless technology that perfectly reveals the hidden information, then in virtually all games of persuasion, the decision maker would use this technology. What distinguishes our analysis from this literature is that in these games of persuasion the analysis is ex post. That is, the actions that landed a plaintiff and defendant in front of a judge are not examined: the analysis begins with the plaintiff and defendant in trial. It follows immediately that better information is always preferred. In sharp contrast, our analysis explicitly models the ex ante actions that could lead to a bankruptcy trial. Now the optimal signal that the judge receives must strike a balance between ex ante and ex post considerations. Were the standard literature to incorporate ex ante decision making into their persuasion games, then our analysis strongly suggests that the most informative signal would be sub-optimal. One can interpret our paper as contributing to this literature by modeling the ex ante decisions of the interested parties and examining the implications for the optimal signal strength that the decision maker receives. Our paper is also related to the law and economics literature on contracting in the face of an imperfect or costly court. For example, Spier (1994) examines a situation where a victim can experience either a mild or severe accident and the injurer can undertake costly precautions that can reduce the probability and severity of an accident. If a court can observe the level of harm at “low” cost, then it is optimal to set higher damage awards for higher levels of harm. In this situation, the potential injurer invests in the first-best level of precaution. If, instead, it is sufficiently costly for 5 court to observeharm, thecourt sets aconstant damage award andall victims and injurers settle out of court. Although the court uses no resources, the potential injurer under-invests in precaution. As in our paper, court behavior influences ex ante behavior. But, in important contrast, the first-best outcome would be achieved if the court costlessly observed the truth; in our model the first-best is unattainable if the court observes the truth. Grossman and Katz (1983) consider a situation where a court makes mistakes and a risk-averse defendant is either innocent or guilty. Here, plea bargains–which are effective renegotiations–are optimal because they separate the innocent from the guilty (guilty parties accept the plea bargain and innocent parties go to court). Thus, as in our paper, allowing parties to renegotiate outside of court raises welfare; but again in Grossman and Katz’ environment it is always optimal for the court not to err. Our paper is closely related to the bankruptcy literature that explores how the optimal design of bankruptcy law may introduce ex post distortions in resource allocations in order to alter the ex ante behavior of management. Berkovitch et al. (1998) argues that “The structured bargaining imposed by an optimal bankruptcy law provides the entrepreneur with optimal ex ante incentives by placing him in a superior bargaining position in the negotiations triggered by financial distress. The bankruptcy law serves as a commitment device and is required to enforce this re-balancing of the relative bargaining strengths of the claimants ex post.” Giammarino and Nosal (1994) provide conditions where Chapter 11, as an option, can increase efficiency by providing management with additional ex post bargaining strength. The additional bargaining strength implies that manage- ment now has an incentive to take actions that enhance social welfare. Bernhardt and Lu (1998) model the dynamic features of Chapter 11, exploring how the time allotted management to make restructuring offers affects both ex post outcomes such as the timing of liquidation and settlement outcomes, as well as the ex ante effects on such managerial actions as effort and project selection. Finally, our paper is related to the hold-up literature begun by Williamson (1985). In a typical hold-up problem model, agents take actions, observe outcomes, possibly renegotiate contracts, or go to court and make final exchanges. In the standard model, the court costlessly enforces only those aspects of the contract that it can verify and some key attribute is unverifiable. When a seller’s action is a costly investment that enhances the value of its good to the buyer, Che and Hausch (1999) find that if the court cannot verify the investment, then even if the amount traded is verifiable, under-investment necessarily results. However, in a recent working paper, Willingston (2002) shows that when the court is “blind,” in the sense that it randomly decides whether the seller breached, then it is possible to devise a contract in which the seller makes the optimal investment. This result mirrors ours in number of ways. Because the court makes errors, the parties prefer to renegotiate the original contract to eliminate ex post inefficiencies, and it is the fact the court makes errors that promotes optimal ex ante behavior. 6 The next section presents the basic model. We identify the costs and benefits associated with the courts making mistakes and develop the intuition for why courts may optimally choose to err. By imposing only weak structure on the lending contract (in particular, the lending environment need not be competitive), the nature of the possible action choices that an entrepreneur could take and how they affect bankruptcy probabilities, the section provides insights into the nature of the liquidation mistakes that the courts might make. The intuition underlying the analysis is made more transparent by giving the court complete flexibility in the choice of monitoring technology for each type of entrepreneur. In practice, however, the court generally does not have this kind of flexibility in choosing type contingent monitoring technologies. We, therefore, consider how the results are altered when the court’s choices are more constrained. We do this for two broad sets of economies: In section 3 the action choice corresponds either to undertaking perk consumption or having a fire sale, while in section 4 the action corresponds to theft or shirking. Section 5 concludes. 2 Unconstrained court evaluation technologies A single risk-neutral entrepreneur requires external funding of one unit of capital to finance an ex ante positive NPV project. The potentially two-period-lived project is financed by a risk-neutral investor through the financing contract C. Neither entrepreneur nor investor discount payoffs. The contract, which we describe below, specifies both the payments to the investor as a function of observed project revenues, as well as a revenue cutoff such that for lower revenues the entrepreneur is in default, cannot “meet” its contractual obligations and “enters bankruptcy.” The project offers random payoffs in two periods. The project is either good or bad. The timing of events is such that the entrepreneur does not know the project type when the financial contract is negotiated with the investor, but does learn the type prior to taking any actions. The project’s (or entrepreneur’s) type, ∈ {g,b}, is private information to the entrepreneur. Let p( ) be the probability that the entrepreneur is type . In the first period, entrepreneur chooses an action, a . Both the entrepreneur’s type, , and his action choice, a , may affect: • Total expected period project revenues, Rt( ,a ), t = 1,2. • Entrepreneurial expected period profits, πt( ,a ), t = 1,2. • The probability B( ,a ) that a firm defaults on its contractual obligations at date 1. • The value z( ,a ) of a firm that is liquidated at the end of period 1. 7 The expected period payment to creditors is just the difference between expected period project revenues and expected entrepreneurial profits: Rt( ,a )−πt( ,a ). To simplify the presentation, we restrict attention to two action choices for each type of entre- preneur, a ∈ {a1,a2}. We use “∆” to capture the difference in the variables from taking action a1 instead of action a2. Thus, ∆Rt( ) ≡ Rt( ,a1)−Rt( ,a2) is the difference in expected period t revenues from taking action a1 rather than a2, and so on. The key assumption that we make is that if entrepreneur takes action a1 then he is more likely to default and end up in bankruptcy than if he takes action a2: A1: ∆B( ) ≡ B( ,a1)−B( ,a2) > 0. Assumption A1 reduces to a normalization of the action choice if action choices have the same signed impact on bankruptcy for both entrepreneur types. Our formulation admits a broad variety of interpretations for the actions. For example, an entrepreneur could be choosing whether or not to invest in a risky, negative NPV project that raises expected period 1 profits at the expense of expected total period 1 project revenues and an increased likelihood of bankruptcy. Then action a1 would correspond to making the risky, negative NPV investment. Alternatively, a1 could correspond to stealing from period 1 investments, which again raises expected profits at the expense of reducing expected period 1 project revenues and raising the likelihood of bankruptcy. Another possibility is that the entrepreneur could be choosing whether or not to have a “fire sale” of existing inventory at bargain prices. In this case action a2 would correspond to having a fire sale, since a fire sale raises period 1 revenues and period 1 profits, and reduces the likelihood of immediate bankruptcy. However, a fire sale reduces future revenues, profits and liquidation values. With a slight modification of the model (to allow for non-pecuniary payoffs), action a1 could correspond to shirking (working less hard), while action a2 could correspond to working hard (working harder). Indeed, the actions contemplated by the two types of entrepreneurs could even differ. For example, suppose that the bad entrepreneur is in financial distress, but the good entrepreneur is not. The bad entrepreneur might be choosing between a fire sale (a2b) and no fire sale (a 1 b), while the good entrepreneur is choosing whether to steal some of the firm’s first period cash flows (a1g) or not (a2g). Depending on the action interpretation, it could be socially optimal for the entrepreneur to take the high default action a1 (if action a2 represents a fire sale, or working excessively hard); or the low default action a2 (if action a1 represents a negative NPV gamble, theft or shirking). If a project is liquidated after the first period, then it pays z( ,a ) to creditors and nothing to the entrepreneur. We assume that it is efficient to liquidate a project run by a bad entrepreneur, 8 but inefficient to liquidate a project run by a good entrepreneur: A2: R2(g,ag) > z(g,ag) and R2(b,ab) < z(b,ab). We also assume that the potential liquidation value is not observed by the court when making decisions, and that if renegotiation is feasible, then terms cannot depend on z( ,a ). These as- sumptions simply ensure that the liquidation value does not reveal type in our sparsely specified environment. We will also discuss the impact of intermediate divisions between the entrepreneur and creditor of the liquidation proceeds later. Observed first period project revenues are implicit in the bankruptcy probability specification. We do not directly specify realized first period project revenues in order to be consistent with a variety of possible forms of action choice, including, for example, theft–which leads to a distinction between realized and observed first period revenues–and shirking or risky investments–where realized and observed first period revenues correspond. To be consistent with a variety of economic environments we impose little structure on the financing contract between entrepreneur and investor. In equilibrium, the investor must expect to get back at least his one unit of capital investment from the firm. The analysis is consistent with standard limited liability loan contracts, but also holds for more general financing contracts. If the firm “meets” its first period contractual obligations, then the entrepreneur retains control of the assets. If the firm defaults, then at a cost of c, that is incurred by the creditor, the bankruptcy court evaluates the firm’s future prospects. The court then determines whether (a) the firm should be liquidated; or (b) the entrepreneur should retain control and continue to operate the firm in the second period. We assume that the bankruptcy costs are not so high, as to cease to make liquidation valuable: z( ,a ) > c > 0. Initially, we preclude the possibility that the entrepreneur and creditors can renegotiate a set- tlement to circumvent the bankruptcy court. As a result, the entrepreneur retains control of the firm in the second period if and only if either (a) he meets his first period contractual obligations, or (b) he fails to meet his first period contractual obligations, but the court chooses not to liquidate the entrepreneur. We model the design of the bankruptcy court as a pair (γ(g),γ(b)), where γ( ) is the probability that the court concludes that the project has a negative NPV. If the entrepreneur defaults in period 1 and the court concludes that the project has a negative NPV, then the firm is liquidated and the liquidated value, z( ,a ) > 0, is transferred to creditors. Assumption A2 implies that identifying whether a project has a negative NPV amounts to identifying the entrepreneur’s type. Hence, γ( ) can be interpreted as the probability that a type firm is liquidated if it defaults in the 9 first period. Society (or the court) is benevolent, choosing (γ(g),γ(b)) to maximize ex ante total expected revenues net of bankruptcy costs. We interpret the court design (γ(g),γ(b)), as the choice of a “monitoring technology,” where the technology attempts to assess whether the project that has gone into default has a positive NPV. This interpretation is sufficiently important to discuss in detail. The accuracy of the monitoring technology’s assessment depends on the information provided. If, for example, all relevant infor- mation regarding the project’s value is available and provided, then, in principle, the monitoring technology could determine the project’s type with complete accuracy; if all relevant information is not provided, then monitoring errors may be made. To highlight the intuition, we first place no restrictions on the evaluation technologies to which the court has access. In practice, owing to “natural” informational asymmetries that exist between creditors and debtors, the court may be unable to gather all relevant information. As a result, a court must sometimes make undesigned mistakes, imposing lower bounds on the error probabilities. Our analysis is best interpreted within the context of asking how the court should choose its design– the rules of evidence that restrict the information which creditors and firms can present and hence the information to which the court has access–in order to structure the probability of errors in such a way as to enhance social welfare. Our analysis can be interpreted as providing a rationale for the imposition of these kinds of rules: such rules cause courts to make (more) errors and we will show that increasing errors is often optimal. To illustrate how the court might design the rules of evidence so as to generate the “right” (γ(g),γ(b)), suppose that it is optimal for the court to liquidate all bad firms, but to err occa- sionally in the identification of good firms. As a result, some good entrepreneurs who default are (unfortunately) liquidated, but this possibility of liquidation may cause a good entrepreneur to make better decisions when running the firm. The court could implement such rules of evidence by placing the entire burden of proof on the entrepreneur: the firm is liquidated unless the entre- preneur can prove that he is “good.” Since bad entrepreneurs can never do so, the choice of the error-making probability amounts to restricting the rules of evidence about what evidence a good entrepreneur can provide to attain the “right” error-making probability. The court’s unrestricted evaluation technology provides a best case scenario for an error-riven court. We later consider how outcomes are affected when the court has access only to a more limited set of feasible monitoring technologies. Let Π( ,a ,γ( )) be the expected lifetime entrepreneurial profits of a type entrepreneur who 10 takes action a ∈ {a1,a2} given γ( ) and C: Π( ,a ,γ( )) = [π1( ,a )+(1−B( ,a )γ( ))π2( ,a )]. A type entrepreneur will choose the high default probability action, a = a1, if it is in his best interest to do so, i.e. if Π( ,γ( ),a1)−Π( ,γ( ),a2) > 0. After some manipulation, we see that a type entrepreneur will choose the high default action if γ( ) < ∆π1( )+∆π2( ) B( ,a1)π2( ,a1)−B( ,a2)π2( ,a2) ≡ γ∗( ). (1) Were the court’s liquidation probability to exceed γ∗( ), then the entrepreneur would choose the low probability default action, a2; were γ( ) < γ∗( ), then the entrepreneur would always choose the high probability default action a1. γ∗( ) can be loosely interpreted as the entrepreneur’s private benefit-cost ratio associated with taking the high default probability action. The numerator represents the potential increase in lifetime benefits to the entrepreneur from taking the high default probability action, while the denominator represents the increased second period loss due to the reduced probability of receiving a payoff in period 2 associated with taking the high default action. Hence, given liquidation probability γ( ), a type entrepreneur will choose action a∗ = a1 if γ( ) ≤ γ∗( ) a2 if γ( ) > γ∗( ) ∈ {g,b}. (2) 2.1 Optimal choices of γ( ) 2.1.1 Good Entrepreneurs To discourage a good entrepreneur from taking the high default probability action, i.e., from taking the action ag = a 1 g, equation (1) implies that the court must choose a sufficiently high liquidation probability γ(g) ≥ γ∗(g). It follows immediately that, Lemma 1: If the court chooses to discourage the high default probability action by a good entrepre- neur, then it optimally liquidates a good firm that enters bankruptcy with probability γ(g) = γ∗(g) . If, instead, the court chooses not to discourage the high default action by a good entrepreneur, then it optimally chooses γ(g) = 0. Setting γ(g) > γ∗(g), i.e. mis-identifying a good firm as bad with a probability exceeding γ∗(g), discourages a good entrepreneur from taking the high default probability action, but does so at an unnecessarily higher cost–an excessively high proportion of good entrepreneurs is liquidated. The associated total net expected revenues from discouraging the high default action are: R1(g,a 2 g)+[1−B(g,a2g)]R2(g,a2g)+B(g,a2g)[(1−γ∗(g))R2(g,a2g)+ γ∗(g)z(g,a2g)−c]. (3) 11 If courts choose to encourage the high default probability action ag = a 1 g, then the liquidation probability must be set so that γ(g) < γ∗(g). Clearly, in such a case it is optimal to set γ(g) = 0 since it is not optimal to liquidate good firms. In this case, total net expected revenues are R1(g,a 1 g)+R2(g,a 1 g)−B(g,a1g)c. (4) Proposition 1: It is optimal to encourage the low default probability action for good entrepreneurs, ag = a 2 g, if and only if −∆R1(g)−∆R2(g)+∆B(g)c > (R2(g,a2g)−z(g,a2g))B(g,a2g)γ∗(g). (5) The left-hand side reflects thepotential gains fromdiscouraging a goodentrepreneur fromtaking the high default probability action: expected lifetime project revenues are increased and the firm is less likely to incur investigation costs in bankruptcy. The right-hand side reflects the costs: to discourage a good entrepreneur from taking the high default action, the court must occasionally mistakenly identifying bankrupt good entrepreneurs as bad, and liquidate them. It is useful to rewrite equation (5) in terms of γ∗(g). Doing so reveals that it is optimal to discourage a good entrepreneur from taking the high default probability action if and only if the court does not have to make too many mistakes in order to induce a good entrepreneur to take action a2g i.e., if and only if γ∗(g) = t ∆πt(g) B(g,a1g)π2(g,a 1 g)−B(g,a2g)π2(g,a2g) < − t∆Rt(g)+∆B(g)c B(g,a2g)(R2(g,a 2 g)−z(g,a2g)) ≡ γcourt(g). (6) The left-hand side of the inequality reflects a good entrepreneur’s private trade-off from undertaking the high default probability action, while the right-hand side of the inequality reflects the society’s trade-off from discouraging this action. Good entrepreneurs refrain from taking the high default action if, relatively speaking, the probability of liquidation is high enough–i.e., if B(g,a1g) is sufficiently larger than B(g,a2g)–and/or if the potential profit gain from taking the high default action, t∆πt(g), is small. It is socially optimal to discourage a good entrepreneur from taking the high default action if the requisite liquidation probability, γ∗(g), is, relatively speaking, “small enough.” The requisite liquidation probability will be (relatively) small if the changes in lifetime revenues and changes in bankruptcy rates are large and if the expected costs associated with liquidating a good entrepreneur, B(g,a2g)(R2(g,a 2 g)−z(g,a2g)), are not too large. Note that for some interpretations of the action choice, it would never be optimal to design a court that mis-identifies good entrepreneurs: for some action choice interpretations a good en- trepreneur’s private interests over action choice are aligned with society’s (as long as bankruptcy 12 costs are not too high). For example, let action a2g correspond to having a fire sale and a 1 g cor- respond to not having a fire sale. Although a fire sale decreases the probability of default in the first period, it requires that the entrepreneur inefficiently liquidate resources which implies that R1(g,a 2 g)+R2(g,a 2 g) < R1(g,a 1 g)+R2(g,a 1 g). Therefore, t∆Rt(g) > 0. But then the right-hand side of (6) is negative provided that bankruptcy costs are not too high; it is, therefore, optimal for the court to set γ(g) = 0. Intuitively, the court would not encourage the low default probability fire sale action since it entails social costs with no offsetting benefits. So, too, if action a2g corresponds to “working too hard,” then interests are aligned. In contrast, if action a1g corresponds to theft or a risky negative NPV investment, then action a1g is socially inefficient in the sense that R1(g,a 1 g) + R2(g,a 1 g) < R1(g,a 2 g) + R2(g,a 2 g). Since t∆Rt(g) < 0, there are social benefits associated with discouraging the high default (theft) action. If this benefit is sufficiently great, i.e., if inequality (6) holds, then by its choice of liquidation probability, the court will encourage a good entrepreneur to take the low default (no theft) action. These observations highlight that the optimal design of the court will depend crucially on the nature of action choices that entrepreneurs are likely to undertake that have the biggest impact on payoffs. In this paper, we do not take a stand on which action choices are most important, but merely derive the consequences of the way in which action choices affect payoffs for the court’s optimal design. 2.1.2 Bad Entrepreneurs Lemma 2: If the court chooses to discourage bad entrepreneurs from taking the high default prob- ability action, then it always liquidates bad firms that enter bankruptcy. If, instead, the court chooses to encourage the high default action by bad entrepreneurs, then it liquidates bad firms with probability γ(b) = γ∗(b). Any liquidation probability γ(b) ∈ (γ∗(b),1] will discourage bad entrepreneurs from choosing the high default probability action (e.g., taking a risky negative NPV project, stealing, shirking, no fire sale). It follows immediately that the court should choose the liquidation probability that induces ab = a 2 b at the minimum cost, i.e., it should choose γ(b) = 1. That is, given that bad entrepreneurs do not choose the high default action, it is optimal to identify all bad entrepreneurs who go bankrupt. In this case, total expected revenues are: R1(b,a 2 b)+[1−B(b,a2b)]R2(b,a2b)+B(b,a2b)(z(b,a2b)−c). (7) If, instead, courts wish to encourage bad entrepreneurs to take the high default action, then it is optimal to set γ(b) = γ∗(b); i.e., it is optimal to select the largest liquidation probability consistent 13 with a bad entrepreneur choosing ab = a 1 b (e.g., preventing a fire sale that shifts cash flows ahead at the expense of total expected revenues). In this case, total expected revenues are R1(b,a 1 b)+(1−B(b,a1b))R2(b,a1b)+B(b,a1b)[(1−γ∗(b))R2(b,a1b)+ γ∗(b)z(b,a2b)−c]. (8) Proposition 2: It is optimal for the court to encourage bad entrepreneurs to take the high default probability action if and only if −∆R1(b)−∆R2(b)+∆B(b)c < B(b,a1b)γ∗(b)(z(b,a1b)−R2(b,a1b))−B(b,a2b)(z(b,a2b)−R2(b,a2b)). (9) The left-hand side of equation (9) reflects the loss incurred resulting from encouraging bad en- trepreneurs to take the high default probability action. The right-hand side reflects the potential gains: If γ∗(b)B(b,a1b) > B(b,a 2 b), then more bad entrepreneurs will be identified if they take the high default action, even though some will slip through because the court makes mistakes in order to have the opportunity to identify bad entrepreneurs. If the above inequality does not hold, then it is always optimal to set γ(b) = 1. Rewriting equation (9) in terms of γ∗(b), reveals that it is optimal to encourage the high default action if and only if the court does not have to make too many mistakes in order to induce a bad entrepreneur to take the low default action, i.e., if and only if γ∗(b) = t ∆πt(b) B(b,a1b)π2(b,a 1 b)−B(b,a2b)π2(b,a2b) > − t∆Rt(b)+∆B(b)c+B(b,a2b)(z(b,a2b)−R2(b,a2b)) B(b,a1b)(z(b,a 1 b)−R2(b,a1b)) ≡ γcourt(b). (10) Again, the right-hand side represents the social benefit-cost ratio from discouraging a bad entre- preneur from taking the high default probability action, while the left-hand side represents a bad entrepreneur’s private trade-off for undertaking the high default action. A bad entrepreneur will take the high default action only if he is sufficiently likely to be mistaken by the court for a good entrepreneur. Intuitively, encouraging a bad entrepreneur to take the high default action tends to be optimal if • The action is attractive to a bad entrepreneur (i.e., his potential profit gain, ∆π1(b)+∆π2(b), is high, and profits foregone in a liquidation, B(b,a1b)π2(b,a 1 b)−B(b,a2b)π2(b,a2b), are low), • The social benefits associated with getting a bad entrepreneur to take the low default proba- bility action, −∆R1(b)−∆R2(b)+∆B(b)c+B(b,a2b)(z(b,a2b)−R2(b,a2b)) are low and the ex- pected social cost associated with liquidating a bad entrepreneur, B(b,a1b)(z(b,a 1 b −R2(b,a1b)) is high. 14 Comparing γcourt(b) with γcourt(g), we see that there is an additional consideration in the court design for the bad entrepreneur: The court may want to encourage bad entrepreneurs to take the high default action in order to increase the probability that bad entrepreneurs go into bankruptcy, and hence the probability that they are liquidated. The interests of a bad entrepreneur and society are never aligned over bankruptcy, in the sense that bad entrepreneurs prefer a lower bankruptcy probability, whereas society prefers a higher bank- ruptcy probability. Excepting this consideration, however, whether a bad entrepreneur’s interests are aligned with society’s interests depends on the action interpretation in ways similarly to those discussed for good entrepreneurs. 3 Confiscation: Perk consumption and Fire Sales We now focus on specific interpretations of the action choices. In particular, we assume that an entrepreneur can confiscate some of the firm’s resources. The confiscated resources can be used either to supplement first period revenues or for the entrepreneur’s personal consumption. In a fire sale, an entrepreneur confiscates some of the firm’s infrastructure, liquidates it in the market and then uses the liquidation proceeds to supplement first period revenues. A fire sale raises current period revenues and profits, and lowers default probabilities at the expense of future period revenues and profits, as well as total revenues. A bad entrepreneur may have an incentive to have a fire sale to avoid default. Alternatively, an entrepreneur can consume the proceeds from the liquidated infrastructure as well as some of the firm’s first period cash flow. As with a fire sale, an entrepreneur who “consumes perks” reduces future revenues and profits, but doing so reduces rather than raises first period revenues and default rates. A good entrepreneur might be tempted to engage in perk consumption since he may be unlikely to be liquidated in default. For the bad entrepreneur, action a2b corresponds to undertaking a fire sale. A fire sale entails a socially inefficient liquidation of inventory or infrastructure by the entrepreneur, which means that R1(b,a 1 b)+z(b,a 1 b) > R1(b,a 2 b) +z(b,a 2 b) and R1(b,a 1 b)+R2(b,a 1 b) > R1(b,a 2 b) +R2(b,a 2 b). A bad entrepreneur may want to pursue a fire sale in order increase first period expected revenues and profits, but it is at the expense of second period revenues, profits and liquidation values. For a good entrepreneur, action a1g corresponds to consuming perks: “stealing” cash flows and/or infrastructure and consuming them. To the extent that a good entrepreneur must conceal these activities, real resources are used which means that R1(g,a 2 g) + R2(g,a 2 g) > R1(g,a 1 g) + R2(g,a 1 g) and R1(g,a 2 g)+z(g,a 2 g) > R1(g,a 1 g)+z(g,a 1 g). A good entrepreneur may want to steal in order to increase first period profits, albeit at the expense of first period revenues and second period profits, 15 revenues and liquidation values. Section 2 considered a court that was unconstrained in its signal choices. In practice, the court may be more limited both by what evidence is feasible to provide and in how it can design signal qualities through its choice of rules of evidence, etc. In this section we consider how outcomes are affected when the court has access only to a more limited class of signals. A natural choice for a restricted class of signals is that where the court is as likely to mis-identify a bad entrepreneur as good, as it is to mis-identify a good entrepreneur as bad: γ(b) = 1−γ(g). That is, the court makes “symmetric” errors across different types. Not only might this be viewed as natural choice, but it turns out that this choice has optimality properties for the types of action choices considered here. 3.1 No Renegotiation When a court makes errors, both parties have an incentive to renegotiate the existing contract to circumvent the error-riven court. The gains to renegotiation generally rise when the court selects its monitoring policy from a more restricted class. To distinguish most sharply how each feature–a court that errs and renegotiation–affects outcomes, we proceed in two steps. First, in an environment with no renegotiation, we contrast outcomes when the court must adopt the symmetric evaluation technology with those where the court faces no restrictions on the evaluation technology. We then analyze how the possibility of renegotiation affects the outcomes. Suppose first that γ∗(b) < 1−γ∗(g). Then the optimal error rate is one of • γ(g) = 0 = 1−γ(b). Here all defaulting entrepreneurs are perfectly identified. However, good entrepreneurs consume perks and bad entrepreneurs have fire sales. • γ(g) = γ∗(g) < 1−γ∗(b). Good entrepreneursare induced to refrain fromconsumingperks but bad entrepreneurs continue to engage in fire sales1 (and hence does not reduce the probability that he is funded in the second period). Defaulting entrepreneurs of both types are no longer perfectly identified. • γ(g) = 1− γ∗(b) > γ∗(g). Good entrepreneurs now refrain from consuming perks, but at a slightly higher error rate than when the court was unconstrained. As a result, more good entrepreneurs are liquidated. This higher error rate may be justified since it prevents bad entrepreneurs from having a fire sale. Anyothererror rateunnecessarily introducesgreater ratesof error thanoneof thesealternatives, while inducing the same behavior by entrepreneurs. The key observation is that to choose the error 1Since 1− γ(b) = γ(g) = γ∗(g), then 1− γ(b) < 1 − γ∗(b) or γ(b) > γ∗(b). 16 probability efficiently for one entrepreneur type one must introduce inefficiencies for the other entrepreneur type. For example, if γ(g) = γ∗(g), then a good type is efficiently induced not to consume perks, but a bad entrepreneur’s behavior is unaffected by the introduction of court error. As a result, the bad entrepreneur may be mis-identified and hence not liquidated following a default. This reduces the value of a error-prone court, perhaps to the point that it is optimal to have a court that makes no errors. If, instead γ∗(b) > 1−γ∗(g), then the optimal error rate is one of • γ(g) = 0 = 1− γ(b). Again, all defaulting entrepreneurs are perfectly identified, but good entrepreneurs consume perks and bad entrepreneurs have fire sales. • γ(g) = 1−γ∗(b) < γ∗(g). Bad entrepreneurs cease to conduct fire sales. Good entrepreneurs continue to consume perks and in default are sometimes liquidated. • γ(g) = γ∗(g) > 1− γ∗(b). Good entrepreneur are induced not to consume perks and bad entrepreneurs continue to refrain from fire sales. However, the error rate now exceeds that required to induce bad entrepreneurs from having fire sales. The more limited evaluation technology reduces the value of designing a court that makes errors, relative to an environment in which the court is unconstrained in its evaluation technology. Qualitatively, the value of noisy evaluation is reduced because to alter the behavior of one type but not the other, the court also must err for the second type; and to affect the behavior of both types, generically, the error rate must be unnecessarily high for one type. The costs of such mis-designs depend on the specification of the economy in the expected ways (e.g. upon the productivities of each entrepreneurial type if re-financed, the costs of the action choices, etc.). Generally, however, the optimal design of the court’s monitoring technology should not be error free, because with an error-free court, entrepreneurs take actions that are socially sub-optimal. Indeed, the optimal error rate may be increased because, with an unconstrained evaluation technology, it may be optimal to err for one type of entrepreneur, but not the other;2 but with the more limited evaluation technology, the court sometimes errs in identifying both types. We now explore how the analysis is altered by renegotiation. Incorporating a single signal quality generally reduces the value of an error-riven court. In contrast, if the parties can sometimes renegotiate and reach a settlement, this circumvents the error-making by the court, leaving only the incentive effects for entrepreneurs and raising the value of a court that errs. In what follows, we characterize conditions under which if creditors and debtors can always renegotiate and creditors 2Recall that this asymmetric technology can be implemented by placing the entire burden of proof on one party. 17 have all of the bargaining power then a blind court design can implement the social optimum. Further, we identify situations where a completely uninformed court can implement the social optimum and where it cannot. Qualitatively, both factors are relevant: while the court may have limited flexibility in condition- ing signal quality on type, the parties can probably only sometimes renegotiate to reach a private settlement ( e.g. because a bankrupt entrepreneur may lack access to the funds required to make the payment to the creditor that would circumvent the bankruptcy court). In such environments, it would be optimal for the court only to be “near-sighted,” but not completely “blind.” 3.2 Renegotiation Chapter 11 bankruptcy is characterized by a prolonged and involved bargaining session between the firm and creditors. Creditors and entrepreneur may be able to renegotiate in bankruptcy and reach a superior outcome by agreeing on the efficient liquidation decision. In particular, a bad entrepreneur and creditor may agree to liquidate the firm and provide the entrepreneur with some of the liquidation payoffs; or a good entrepreneur may offer the creditor a greater share of the firm’s proceeds if the creditor lets the firmoperate. In both cases, agents circumvent the error-prone court. If an entrepreneur defaults, a cost of c is incurred (which represents the cost associated with renegotiation and/or using the court). If the entrepreneur and creditor fail to resolve their dispute via renegotiation, the court then evaluates the entrepreneur and liquidates according to (γ(b),γ(g)), where γ(b) = 1−γ(g). We assume that while the creditor does not observe the entrepreneur’s type or the action taken, and that the creditor has all of the bargaining power in any renegotiations. We do not place any restrictions on when renegotiation can occur. For example, if the entre- preneur does not default, then the creditor can propose always a renegotiation offer, which the entrepreneur can accept or reject. We assume that 0 < γ∗(g) < γ∗(b) < 1. The fact that both critical values are strictly between zero and one implies that the court can influence the behavior of entrepreneurs through its choice of γ(g). Since γ∗(g) < γ∗(b), good entrepreneurs should be liquidated less frequently than bad if there are no constraints on the evaluation technology. In renegotiation, a bad entrepreneur would want to liquidate rather than take his chances in court if the creditor pays him at least (1−γ(b))π2(b,ab) in return, where ab is the action that the bad entrepreneur took in period 1. This payment corresponds to the bad entrepreneur’s expected payment if he takes his chances in court. Similarly, a good entrepreneur would pay the creditor up to γ(g)π2(g,ag), in exchange for avoiding the court and operating the firm in period 2. Consider 18 the following renegotiation offer that the creditor might make following a default in an equilibrium where, at date 1, good entrepreneurs take action ag and bad entrepreneurs take action ab. Renegotiation Offer: “If you (the entrepreneur) agree to liquidate, then you will receive P(b,ab); if you do not want to liquidate and continue into period 2, then to avoid running the risk of the court erring, you must pay me (the creditor) an additional γ(g)π2(g,ag) in period 2. If you reject this offer, you will go to court.” Suppose that the creditor makes this renegotiation offer and P(b,ab) is such that neither type of entrepreneur rejects it in order to take their chances in court. A good entrepreneur would prefer to pay γ(g)π2(g) in exchange for running the firm in period 2 to taking the liquidation contract meant for a bad entrepreneur if the liquidation payment, P(b,ab), is not “too high,” i.e., if A. (1−γ(g))π2(g,ag) ≥ P(b,ab). A bad entrepreneur would agree to liquidate, rather than make a payment that would enable him to circumvent the court and run the firm in period 2, if the liquidation payment, P(b,ab), is “sufficiently high,” i.e., if B. P(b,ab) ≥ π2(b,ab)−γ(g)π2(g,ag). Together, conditions A and B imply that (1−γ(g))π2(g,ag) ≥ P(b) ≥ π2(b,ab)−γ(g)π2(g,ag). Note that if π2(g,ag) > π2(b,ab), then there always exists a P(b,ab) that satisfies conditions A and B. This “efficient liquidation” renegotiation offer is incentive compatible if 1. It satisfies conditions A and B, and 2. The creditor is willing to make an offer that satisfies conditions A and B. It is incentivecompatible fora badentrepreneur to accept the renegotiation offerand liquidate if and only if doing so dominates both (i) not settling and taking its chances in court, which has expected payoff (1− γ(b))π2(b,ab); and (ii) passing himself off as a good entrepreneur, and circumventing the court in return for the payment of γ(g)π2(g,ag). If the creditor makes an incentive compatible renegotiation offer, then the creditor will make the smallest payment necessary to induce a bad entrepreneur to liquidate, setting P(b) = max{π2(b,ab)−γ(g)π2(g,ag),(1−γ(b))π2(b,ab)}. 19 However, it may not be in the creditor’s best interest to make this “efficient liquidation” rene- gotiation offer. For example, if the payment to the bad entrepreneur necessary to ensure incentive compatibility is too high, the creditor may prefer to make a renegotiation offer in which P(b,ab) = 0. In this situation, a good entrepreneur would pay γ(g))π2(g,ag) in order to continue operating the firm in period 2, but a bad entrepreneur would reject the offer and take his chances in court. The question then arises: When would the creditor prefer to make an efficient liquidation renegotiation offer that both entrepreneur types would prefer to taking their chances in court? Lemma 3: Suppose that π2(g,ag) > π2(b,ab). Then, if bad entrepreneurs prefer taking their chances in court to mimicking good entrepreneurs, i.e. if (1−γ(b))π2(b,ab) ≥ π2(b,ab)−γ(g)π2(g,ag), (11) then the creditor always makes an efficient liquidation renegotiation offer, setting P(b,ab) = (1− γ(b))π2(b,ab). If, instead, bad entrepreneurs prefer to mimic good entrepreneurs to taking their chances in court, so that (11) does not hold, then the creditor makes an efficient liquidation rene- gotiation offer with P(b,ab) = π2(b,ab)−γ(g)π2(g,ag), only if γ(g)(z(b,ab)−R2(b,ab)+ π2(b,ab)+ π2(g,ag)) ≥ π2(b,ab). (12) Proof: If (11) holds, the creditor’s payoff from renegotiation offer P(b,ab) = (1−γ(b))π2(b,ab) is z(b,ab)− (1−γ(b))π2(b,ab). (13) If he instead offers P(b,ab) = 0, he expects γ(b)z(b,ab)+(1−γ(b))(R2(b,ab)−π2(b,ab)). (14) Since z(b,ab) > R2(b,ab) it follows that (13) exceeds (14). The bad entrepreneur is indifferent between accepting P(b,ab) and going to court, so he accepts. If, instead, (11) does not hold, then the payoff from making an incentive compatible efficient liquidation renegotiation offer is z(b,ab)− (π2(b,ab)−γ(g)π2(g,ag)), while the payoff from making the renegotiation offer with P(b,ab) = 0 is γ(b)z(b,ab)+(1−γ(b))(R2(b,ab)−π2(b,ab)). The payoffs from the efficient liquidation renegotiation offer are greater only if (12) holds. 20 Definition: “Blind justice” is a court design where γ(g) = γ(b) = 0.5. If the court design is blind, then the court ignores all information, essentially deciding whether or not to liquidate an entrepreneur on the basis of a fair coin flip. Corollary 1: If the court design is blind and if π2(g,ag) > π2(b,ab), then creditors will make entrepreneurs an efficient liquidation renegotiation offer. Proof: If γ(g) = γ(b) = 0.5, then condition (12) is satisfied. Corollary 1 implies the following key result: Proposition 3: It is never optimal to have an error-free court. Proof: Here we prove that “blind justice” dominates an error-free court. An error-free court makes efficient liquidation decisions, but both entrepreneurs choose socially inefficient actions, ag = a 1 g and ab = a 2 b. When justice is blind, Corollary 1 ensures that if π2(g,ag) > π2(b,ab) then the creditor will make an efficient liquidation renegotiation offer, so that again all liquidation outcomes are socially efficient. The actions that entrepreneurs take depend upon the magnitudes of the critical values γ∗(g) and γ∗(b). If γ∗(g) ≤ 0.5 ≤ γ∗(b), then the good entrepreneur chooses not to steal, ag = a2g, and the bad entrepreneur does not have a fire sale, ab = a 1 b, since γ ∗(g) ≤ γ(g) and γ∗(b) ≥ γ(b). These are the socially optimal actions and, therefore, they strictly dominate the actions induced by an error-free court. (Note that since π2(g,a 2 g) > π2(b,a 1 b), the creditor will, in fact, make an efficient liquidation renegotiation offer.) If γ∗(g) < γ∗(b) < 0.5, then the good entrepreneur does not steal, ag = a 2 g, and the bad entrepreneur has a fire sale, ab = a 2 b. This outcome strictly dominates the outcome induced by an error-free court, since here, the good entrepreneur takes the socially optimal action. The creditor makes an efficient liquidation renegotiation offer because π2(g,a 2 g) > π2(b,a 2 b). Finally, if 0.5 < γ ∗(g) < γ∗(b), then the good entrepreneur steals, ag = a1g, and the bad entrepreneur does not have a fire sale, ab = a 1 b, and π2(g,a 1 g) > π2(b,a 1 b), which implies that the creditor makes an efficient liquidation renegotiation offer. Therefore, blind justice always performs strictly better than an error-free court. Suppose now that the entrepreneur does not default at date 1. Even in the absence of a default, it is still optimal for the bad entrepreneur to be liquidated. It is possible to achieve this outcome if the creditor and entrepreneur can renegotiate their initial contract at the end of period 1. For example, suppose that after achieving a level of first period revenues results in “no default,” the creditor offers the entrepreneur π2(b,ab) in exchange for liquidating his firm, where ab represents the 21 equilibrium action taken by the bad entrepreneur. The bad entrepreneur will be indifferent between accepting this offer and producing in the second period, so the bad entrepreneur will accept this offer. For all of the possible equilibrium configurations that might emerge, it will always be the case that π2(g,ag) > π2(b,ab) implying, the good entrepreneur will always reject the renegotiation offer. Therefore, when the court is blind, the socially optimal liquidation decisions will always be implemented, via renegotiation, both in and out of default. Renegotiation introduces a subtle issue, albeit one that does not affect the above analysis: Rene- gotiation may alter the “critical values,” γ∗(g) and γ∗(b), that determine whether each entrepreneur type takes the high default probability action. Recall that those values were defined for a contract that is not subject to renegotiation (equation (4)). However, when renegotiation is possible, the initial contract between the entrepreneur and the creditor is altered. If, for example, credit markets are competitive at the time that the initial contract is negotiated, then the entrepreneur extracts all of the surplus generated by renegotiation.3 In fact, when credit markets are competitive, the incentives when renegotiation is feasible correspond to those where it is infeasible: γ∗(g) and γ∗(b) are the appropriate critical values under renegotiation. To see this, let CN represent that contract that maximizes the entrepreneur’s expected payoff conditional on: (1) satisfying the creditor’s participation constraint; (2) the court using γ(g) = γ(b) = γ = 0.5; and (3) no renegotiation. Let the initial contract that the entrepreneur offers when renegotiation is possible, CR, take the form CR = (α∗;CN) , where α∗ is an up front lump sum payment from the creditor to the entrepreneur. Given competitive credit markets, the lump sum payment effectively transfers all gains from renegotiation to the entrepreneur. The lump sum payment (see the appendix) has the form α∗ = p(g)α∗(g,ag)+p(b)α∗(b,ab), where p( ) is the ex ante probability that the entrepreneur is type and α∗( ,a ) represents the lump sum transfer of gains that flows to the entrepreneur of type when he is induced to take action a . Since contract CR only differs from contract CN by a lump sum payment, CR provides the same entrepreneurial incentives in terms of action choice as CN. The equilibrium path is characterized by: 1. The court (or society) chooses (γ(g) = 0.5,γ(b) = 0.5). 2. The entrepreneur offers contract CR = (α∗;CN), which is accepted by the creditor. 3If credit markets are not competitive, then the entrepreneur cannot extract all of the surplus associated with renegotiation. Qualitatively, the results presented below are not sensitive to the assumed nature of credit markets, although the precise form of the initial contract is. 22 3. The entrepreneur takes actions (a) ag = a 2 g and ab = a 1 b if γ ∗(g) ≤ 0.5 ≤ γ∗(b), i.e., the good entrepreneur does not steal and the bad entrepreneur does not have a fire sale. (b) ag = a 2 g and ab = a 2 b if γ ∗(g) < γ∗(b) < 0.5, i.e., the good entrepreneur does not steal and the bad entrepreneur has a fire sale. (c) ag = a 1 g and ab = a 1 b if 0.5 < γ ∗(g) < γ∗(b), i.e., the good entrepreneur steals and the bad entrepreneur does not have a fire sale. 4. If the entrepreneur does not default, then the creditor offers the entrepreneur π2(b,ab) in exchange for liquidating the project: The good entrepreneur will not accept this offer (since π2(g,ag) > π2(b,ab)) and the bad entrepreneur will accept. 5. If the entrepreneur defaults, then the creditor makes the above mentioned renegotiation of- fer resulting in the liquidation of the bad entrepreneur and the continuation of the good entrepreneur. The equilibrium is characterized by efficient liquidations and continuations: Along the equilib- rium path, the bad entrepreneur is always liquidated and the good entrepreneur is never liquidated. Note that, depending upon model parameters, there can be equilibria where bad entrepreneurs have fire sales and equilibria where they do not; there can be equilibria where good entrepreneurs steal and equilibria where they do not. In summary, if the entrepreneur and creditor can always renegotiate, and it is optimal (i) to encourage bad entrepreneurs to take the high default action in order to reduce their survival probability, and (ii) to encourage good entrepreneurs to take the low default action, then a blind court design cannot be improved upon if creditors and entrepreneurs can always renegotiate their way around the court. Note that our model predicts that even though the firm does not default, renegotiations and liquidations may occur and, in the event of default, parties will always settle out of court. We typcially do not observe liquidations outside of default and do observe defaulting parties using the court to reshedule their debts. It is the simple and stylized structure of our model that delivers these predictions. We now consider, in turn, how each of these predictions are modified when our model is generalized in rather natural directions. As we discussed earlier, renegotiation both in and out of bankruptcy may break down. For example, suppose that with some relatively small probability, good entrepreneurs have an alter- native opportunity that would pay w, where it is the case that (1) it is socially inefficient for a 23 good entrepreneur to take action w, w < R2(g,ag) − z(g,ag), and (2) in the absence of a rene- gotiation offer, it is not attractive for a good entrepreneur to pursue the alternative opportunity, π2(g,ag) > w, but (3) if the good entrepreneur can obtain the payment meant to induce the bad entrepreneur to default, then the opportunity becomes attractive, w +P(b,ab) > π2(g,ag). Then, if most entrepreneurs who do not go into default are good, it may not be optimal for creditors to negotiate with entrepreneurs outside of bankruptcy. That is, even if only a few good entrepreneurs have such an outside opportunity, the cost of those good entrepreneurs with outside opportunities passing themselves off as bad in order to obtain the payment meant for a bad entrepreneur may exceed the gain from inducing bad entrepreneurs to liquidate. Casual observation suggests that such renegotiations are infrequent. Conversely, it may be that only a small fraction of entrepreneurs in bankruptcy are both good and have outside alternatives, and hence would take offer meant for the bad entrepreneur. Then there is only a small cost to making the above renegotiation offer in bankruptcy. In such a circumstance, precisely because renegotiation outside of bankruptcy becomes infeasible, the value of a blind court design may rise relative to that of a court that does not err: more bad entrepreneurs are liquidated if the court design is blind. Our model predicts that defaulting parties will always settle out of court. This stark result is an artifact of our assumption that there are only two types of entrepreneurs. Suppose, instead, that there are many type of entrepreneurs. In the event of a default, as above, the creditor makes a renegotiation offer to the entrepreneur that specifies: (i) a payment to the entrepreneur for liquidating the firm; (ii) a payment from the entrepreneur to in order to continue operating into period 2; or (iii) going to court. With many types of entrepreneurs, only the very high quality entrepreneurs agree to pay in order to continue; only the very low quality entrepreneurs accept a payment and liquidate; and entrepreneurs of intermediate quality go to court. It follows that entrepreneurs who reorganize out of court are more successful, on average, in the future than entrepreneurs who survive and reorganize under the supervision of a court. This prediction is consistent with the evidence reported by Gilson, John and Lang (1990). 4 Stealing In this section we assume that the entrepreneur’s action choice is either “steal” or “do not steal,” and examine the implications for burden of proof and court design. Here, stealing corresponds to the high default probability action, a1, and not stealing corresponds to the low default probability action, a2. Stealing isnot sociallyoptimalof either typeof entrepreneur. Wesimplify theanalysisby assuming that the liquidation value, second period revenues and second period profits are unaffected by first period action choices, and that the liquidation value is the same for both entrepreneurial 24 types. As a result, the second period profit, second period revenue and the liquidation value simplify to π2( ), R2( ) and z, respectively. Since it is optimal to liquidate a bad entrepreneur and to let a good entrepreneur continue in the second period, we have R2(b) < z < R2(g). Many principal-agent models interpret the agent’s action as being an effort level and that the agent can either “work hard” or “shirk;” it is assumed that it is socially optimal for agents to work hard. By slightly modifying our model to allow for the non-pecuniary payoff associated with effort one could interpret action a1 as shirking and action a2 as working hard. If society were unconstrained in its choice of liquidation probabilities and were only concerned about getting liquidation decisions right, then it would choose γ(g) = 0 and γ(b) = 1.4 That is, the court would never liquidate a good entrepreneur and would always liquidate a bad entrepreneur. Provided that 0 < γ∗( ) < 1 for ∈ {b,g}, these liquidation probabilities deliver the socially optimal outcome for the bad entrepreneur, but would induce the good entrepreneur to steal. To induce the good entrepreneur to not to steal, the court must choose a liquidation probability for the good entrepreneur of at least γ∗(g). Consider the followingburdenofproof rule: An entrepreneur mustdemonstrate to thecourt that he is good, or else he will be liquidated. The burden of proof must be sufficiently stringent that a bad entrepreneur is unable to prove to the court that he is good and that a good entrepreneur cannot not always convince the court that he is good. Occasionally a good entrepreneur will be liquidated by the court. Such a burden of proof rule implies that the court liquidates a good entrepreneur with probability γ(g), where γ(g) > 0 and liquidates a bad entrepreneur with probability γ(b) = 1. Suppose that an entrepreneur defaults. As in Section 3.2, the creditor has an incentive to rene- gotiate the existing contract in order to eliminate the risk of surplus loss that occurs when a good entrepreneur is liquidated. In contrast to the previous section, however, creditors do not have an incentive to renegotiate with a bad entrepreneur–if they could identify –since a bad entrepreneur will be liquidated with probability one by the court. Unfortunately for the creditor, however, he cannot distinguish between good entrepreneurs and bad. Consider the following renegotiation offer that a creditor might make to an entrepreneur following a default: Renegotiation Offer: “If you (the entrepreneur) want to avoid running the risk of the court erring, you must pay me (the creditor) an additional γ(g)π2(g) in period 2. If you reject this offer, then you will go to court.” Good entrepreneurs will accept the renegotiation offer and agree to pay the creditor an addi- tional γ(g)π2(g) in period 2. Note, however, if γ(g)π2(g) is not “sufficiently large,” then bad entre- 4Note that these probabilities satisfy the single signal quality restriction. 25 preneurs will also accept this offer. Bad entrepreneurs will not accept offer if π2(b)−γ(g)π2(g) ≤ 0. Thus, if γ(g) ≥ π2(b) π2(g) , the bad entrepreneur will reject the renegotiation offer, go to court, and be liquidated with prob- ability one. If the courts adopt a “stringent” burden of proof rule, stringent in the sense that it always liquidates bad entrepreneurs and liquidates the good entrepreneur with probability of (at least) π2(b)/π2(g), then the liquidation probabilities will result in socially optimal liquidation decisions. But what about the actions that the entrepreneur takes at date 1? Since the burden of proof rule implies that γ(b) = 1, the bad entrepreneur will always work hard, i.e., ab = a 1 b, since γ ∗(b) < γ(b) = 1. The good entrepreneur will work hard if γ(g) ≥ γ∗(g). Hence, society can induce the good entrepreneur to work hard and at the same time generate a socially optimal liquidation decision in the event of default if γ(g) ≥ max{π2(b) π2(g) ,γ∗(g)}. (15) If the court’s liquidation probability for the good entrepreneur satisfies (15), then the good entre- preneur will have an incentive to work hard in the first period–since γ(g) ≥ γ∗(g)–and a bad entrepreneur who defaults will submit to liquidation–since γ(g) ≥ π2(b)/π2(g). Note that if the court liquidates any entrepreneur that it faces with probability one, i.e., γ(g) = γ(b) = 1, then at date 1, no entrepreneur steals/all work hard. In addition, a defaulting bad entrepreneur will be liquidated and a defaulting good entrepreneur will, via renegotiation, continue to operate at date 2. That is, if the burden of proof is so stringent that no one can demonstrate that he is good, then the first-best outcome can be achieved. This is a rather odd result because it implies that the court simply liquidates anyone who approaches it. Suppose, however, that there is a some chance that renegotiation between the creditor and the defaulting entrepreneur can break down–due to, say, a coordination failure–in which case the entrepreneur faces the court upon default. If the entrepreneur happens to be bad, then there is no social loss associated with the breakdown in renegotiation. But, if the entrepreneur is good, then there is a social loss because he is always liquidated. To minimize the probability of liquidating the good entrepreneur if renegotiation breaks down and, at the same time, provide incentives for a good entrepreneur to work hard/not steal, the court’s liquidation probability should be set equal to the right-hand side of (15). The equilibrium path for this economic environment is characterized by: 1. The court (or society) imposes a burden of proof rule that implies that γ(b) = 1 and γ(g) = max{π2(b)/π2(g),γ∗(g)}. 26 2. The entrepreneur offers contract CR = (α∗∗,CN), which is accepted by the creditor.5 3. The good entrepreneur chooses action ag = a 2 g and the bad entrepreneur chooses action ab = a 2 b. 4. If there is no default, the creditor offers the entrepreneur π2(b) in exchange for liquidation: the bad entrepreneur will accept the offer and the good entrepreneur will not. 5. If there is a default, the creditor asks for an additional payment of γ(g)π2(g) in period 2 or else the entrepreneur goes to court: the good entrepreneur accepts this offer and the bad entrepreneur does not and is ultimately liquidated by the court. 5 Conclusion This paper shows that the optimal design of a bankruptcy court is generally one in which the court occasionally makes errs, sometimes mistakenly liquidating good entrepreneurs, and failing to liquidated bad ones. A mistake-prone court 1. May discourage good entrepreneurs from taking actions that lower total firm value (theft, shirking, risky negative NPV investments) by raising the cost to them of entering bankruptcy. 2. May encourage ‘bad’ entrepreneurs to take actions that increase the probability that they will enter bankruptcy (desist from fire sales) and hence liquidated. We first provide conditions under which even where renegotiation is not possible, an error- prone court is preferred to an error-free court. The optimality of the error-riven court depends on the benefits of inducing entrepreneurs to take the socially optimal action relative to the costs of sometimes making incorrect liquidation decisions. We then consider the optimal court design when creditors and debtors can renegotiation to circumvent an error-riven court and creditors have all of the bargaining power. Very generally, we illustrate that the optimal court design is one where the court makes mistakes. The crucial caveat to this is that there does not exist a “one type fits all” burden of proof rule, that is optimal independent of the types of actions that agents may take. If it is optimal to discourage good entrepreneurs from taking actions that raise bankruptcy probabilities (theft, perk consumption, risky NPV investments, shirking), while discouraging bad 5As in the previous section, CN represents the contract where renegotiation is not possible and γ(b) = 1 and γ(g) = max{π2(b)/π2(g),γ∗(g)}. The parameter α∗∗ represents an up-front lump sum payment that transfers all of the gains from renegotiation to the entrepreneur. 27 entrepreneurs from taking actions that lower bankruptcy probabilities (fire sales, working exces- sively hard, excessively safe investments), then we show that a blind court, which does not use any information, dominates an error-free court. Facing a blind court, creditors and debtors negotiate the ‘correct’ liquidation decision following a default, so that a blind court design induces the same liquidation decisions as an error-free court. In addition, the blind court design induces entrepre- neurs to take better actions. Thus, for this class of action choices, the same simple blind court design leads to better outcomes. However, if it is instead optimal to discourage bad entrepreneurs from taking actions that raise bankruptcy probabilities, then we show that the optimal court design places the burden of proof on the entrepreneur. As a result, the court would sometimes mistakenly liquidating good entrepreneurs who are unable to document their quality. While the optimal court design is again simple to implement, it differs from that where the goal is to discourage bad entrepreneurs from liquidating some of the firm to avoid bankruptcy. 28 References Berkovitch, E., Israel, R. and J. Zender, (1998), “The design of bankruptcy law: A case for man- agement bias in bankruptcy reorganizations," Journal of Financial and Quantitative Analysis, 33, 441-64. Bernhardt, D. and D. Lu (1998) “The Dynamics of Chapter 11 Bankruptcy’, mimeo. Giammarino, R. and E. Nosal (1994) “The efficiency of judicial discretion in bankruptcy law”, mimeo. Che, Y. and Hausch, D., (1999), “Contract Damages and Cooperative Investment,” American Economic Review, 89, 125-147. Fishman, M. and K. Hagerty, (1990), “The Optimal Amount of Discretion to Allow in Disclosure,” Quarterly Journal of Economics, 428-444. Gilson, S., John, K. and Lang, T., (1990), “Troubled Debt Restructuring: An Empirical ...,” Journal of Financial Economics, 27, 315-353. Grossman, G. and Katz, M., (1983), “Plea Bargaining and Social Welfare,” American Economic Review, 73, 749-757. Hay, B. and Spier, K., (1997), “Burden of Proof in Civil Litigation: An Economic Perspective,” Journal of Legal Studies, 413-431. Milgrom, P., (1981), “Good New and Bad News: Representation Theorems and Applications,” Bell Journal of Economics, 380-391. Milgrom, P. and J. Roberts, (1986), “Relying on the Information of Interested Parties,” Rand Journal of Economics, 17, 18-32. Shin, H. S., (1994), “The Burden of Proof in a Game of Persuasion,” Journal of Economic Theory, 64, 253-264. Shin, H. S., (1998), “Adversarial and Inquisitorial Procedures in Arbitration,” Rand Journal of Economics, 29, 378-405. Sobel, J. (1985), “Disclosure of Evidence and Resolution of Disputes: Who should bear the burden of proof?”, in Game Theoretic Models of Bargaining, 341-361, Cambridge University Press. 29 Spier, K., (1994), “Settlement Bargaining and the Design of Damage Awards,” Journal of Law, Economics and Organization, 84-94. Williamson, O., (1985), The Economic Institutions of Capitalism (New York: Free Press.) Willington, M., (2002), “Hold-Up under Costly Litigation and Imperfect Courts of Law,” mimeo. 30 Appendix To understand the expressions for the components of α∗, suppose the court chooses γ(g) = γ(b) = γ = .5 when renegotiation is not possible and the contract that is in place is CN. With contract CN in place and a blind court, the entrepreneur will choose action a2g if he is good and action a1b if he is bad. If renegotiation is possible when the court is blind, then bad entrepreneurs will be liquidated and good entrepreneurs will continue. Consider the following lump sum payment that is attributable to the good entrepreneur, α∗(g,a2g) = B(g,a 2 g))(π2(g;a 2 g)+R2(g,a 2 g)−z), This lump sum payment has two components: (1) the surplus generated through renegotiation with the good entrepreneur, γB(g,a2g)(R2(g,a 2 g)−z), and (2) the payment that the good entrepreneur gives the creditor if he defaults, γB(g,a2g)π2(g;a 2 g). Now consider a lump sum payment that is attributable to the bad entrepreneur, α∗(b,a1b) = ((1−γ)B(b,a1b)+(1−B(b,a1b))+(z−R2(b)−π2(b,a1b). To understand this lump sum payment, note that following a default, renegotiation generates surplus (1−γ)(z−R2(b)), and the entrepreneur receive portion (1−γ)π2(b,a1b) of the total surplus; when the entrepreneur does not default, renegotiation generates a surplus of (z −R2(b)) and the entrepreneur receives a portion π2(b,a 1 b). When the court is blind and renegotiation is possible suppose that the creditor and entrepreneur negotiate the contract CN with an additional up front lump sum payment of α∗ = p(g)α∗(g,a2g)+p(b)α ∗(b,a1b). Since α∗ is an up-front lump sum payment, contract CR = (α∗,CN) provides the entrepreneur with the same incentives when renegotiation is possible as does contract CN when renegotiation is not possible. By construction, α∗ transfers all gains from renegotiation to the entrepreneur. 31 Federal Reserve Bank of Cleveland Research Department P.O. Box 6387 Cleveland, OH 44101 Address Correction Requested: Please send corrected mailing label to the Federal Reserve Bank of Cleveland Research Department P.O. Box 6387 Cleveland, OH 44101 PRST STD U.S. Postage Paid Cleveland, OH Permit No. 385 Abstract 1 Introduction 2 Unconstrained court evaluation technologies 2.1 Optimal choices of γ( ) 2.1.1 Good Entrepreneurs 2.1.2 Bad Entrepreneurs 3 Confiscation: Perk consumption and Fire Sales 3.1 No Renegotiation 3.2 Renegotiation 4 Stealing 5 Conclusion References Appendix 
work_v5au5cnxxfhqljty7nnzf3ccbi	----	Microsoft Word - Justice from the Victim.doc Justice From the Victim’s Perspective The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Herman, Judith Lewis. 2005. “Justice From the Victim’s Perspective.” Violence Against Women 11 (5) (May): 571–602. doi:10.1177/1077801205274450. Published Version 10.1177/1077801205274450 Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:34961943 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA http://osc.hul.harvard.edu/dash/open-access-feedback?handle=&title=Justice%20From%20the%20Victim%E2%80%99s%20Perspective&community=1/4454685&collection=1/4454686&owningCollection1/4454686&harvardAuthors=bb16398cc19b264b153b5861dd29b75b&department http://nrs.harvard.edu/urn-3:HUL.InstRepos:34961943 http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAA http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAA http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAA JUSTICE FROM THE VICTIM’S PERSPECTIVE Do not quote or reproduce without permission from the author. Judith Lewis Herman 41 Magnolia Avenue Cambridge, MA 02138 617 354-5564 herman.j@comcast.net Paper for Special Issue of Violence Against Women (James Ptacek, Editor) Final Draft, November, 2003 Supported in part by a fellowship from Radcliffe Institute for Advanced Study. The author gives thanks to the study informants and to research assistant Chia-Jung Tsay. 2 INTRODUCTION In the course of their recovery, victims of sexual and domestic violence confront the most basic questions about the meaning of justice: How can the truth be made known? How should offenders be held accountable? What is appropriate punishment? Can the harm be repaired, and if so, what would be required to repair it? How can victims and offenders go on living in the same community? Is reconciliation possible? For this category of crime, such questions are particularly complicated, because the offenses are committed mostly by people who are well known to the victims. The offenders are husbands and lovers, fathers, uncles, brothers, friends and neighbors, teachers and priests. They are often admired and respected members of their communities. Sometimes they are beloved, even by their victims. The standard procedures of criminal and civil law are poorly designed to provide a remedy for crimes that are both so widespread and so often socially condoned. The US legal system is organized as an adversarial contest: in civil cases, between two citizens; in criminal cases, between a citizen and the state. While physical violence and intimidation are not allowed in court, aggressive argument, selective presentation of the facts, and psychological attack are permitted, with the presumption that this ritualized, hostile encounter offers the best method of arriving at the truth. Constitutional limits on this form of conflict are designed to protect criminal defendants from the superior power of the state, but not to protect private citizens from one another. The law is technically blind to any disparities in power based on age, race, gender, social status, or wealth between accuser and accused. All citizens are presumed to enter the legal arena on an equal footing, regardless of the real advantages that one of 3 the parties may enjoy. The Constitution, therefore, offers strong guarantees for the rights of the accused, but no corresponding protection for the rights of victims. Thirty-two states have passed constitutional amendments determining victims’ rights. In general, however, the rights defined by these amendments are limited to procedural matters and are not enforceable. For example, the Indiana’s Victims Rights Amendment (Indiana Constitution, Article I, 13b) stipulates that victims “shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and…to be informed and present during public hearings and to confer with prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.” (For a review of the status of victims’ rights laws see Giannini, 2001. For a critical position on victims’ rights constitutional amendments see Henderson, 1999.) Although constitutional law may be blind to disparities of power and status between private citizens, most victims of sexual and domestic violence are not. Victims often perceive quite accurately that their abusers are acting with the tacit permission, if not active complicity, of family, friends, church or community. Moreover, any illusions a victim might have entertained about her status relative to the offender are most convincingly dispelled by the crime itself. By their nature, these crimes are displays of raw power, intended to subordinate the victim and to teach her to know her place. Unlike property crimes, they result in no obvious material gain for the perpetrator; rather their goal is to gain or maintain dominance over the victim. The perpetrator seeks to establish his dominance not only by terrorizing the victim but also, often most effectively, by shaming her. Crimes of dominance have a ritualized element designed to isolate the 4 victim and to degrade her in the eyes of others. The crime is intended to defile the victim, so that she will be publicly stigmatized and scorned, should the crime be disclosed. (For the role of shame in legitimating social inequality and exploitation, see Patterson, 1982; Lewis, 1976.) It is this dishonoring of the victim that renders crimes of sexual and domestic violence so intractable and so impervious to the formal remedies of the law. For three decades now, advocates for women’s and children’s rights have sought to have these crimes treated like any other. But clearly they are not like other crimes. While incidence of other types of violent crimes has decreased markedly in the US over the last decade, rape and domestic violence remain stubbornly resistant to change (Tjaden & Thoennes, 1998; Klaus, 2002). And despite many legal reforms designed to make the justice system more accessible and less intimidating for victims, still most cases are never reported to the authorities. Estimates of rape reporting, based on random sample population surveys, range from 8% to 33% (Russell, 1984; Kilpatrick et al, 1987; Koss, 1987; Rennison, 2002). Victims understand only too well that what awaits them in the legal system is a theater of shame. Here is one victim’s description of her ordeal. The author is Debra Dickerson (2002), a decorated African-American Air Force officer: “I was raped by a member of my own unit, in my own bed, on Christmas Day 1981, shortly after reporting to my first assignment at Osan Air Base in South Korea. I was 22. I pressed charges and my attacker confessed. Then the second phase of the nightmare began: the military blamed me. My fellow airmen ostracized me. Another unit member who was charged with killing his infant while drunk was surrounded by 5 weeping airmen during his trial. No one except a sympathetic major, who wasn’t even in my chain of command, came to support me during my rapist’s trial. My peers drafted a character statement attesting to my rapist’s high morals and their disbelief in the guilt to which he had confessed. The unit’s women led that effort. Had he falsified an expense voucher, he’d have done hard time and been discharged. For raping me, he got six months and served two. …I was never one of the Air Force’s own. My rapist was.” Crimes of sexual and domestic violence are still effectively crimes of impunity. Dickerson is one of the very small minority (less than 5%) of rape victims whose cases are resolved by conviction of the offender and imposition of a prison sentence, however brief. She is also one of the very few who are willing to be named in public. The stigma attached to victims is still so severe that the media customarily refrain from publishing the names of those who come forward to complain. At every step of criminal proceedings, victims are powerfully reminded of their marginal and dishonored status. Small wonder that these crimes remain among the least reported, the least frequently prosecuted, and the least likely to result in conviction of the offender. High attrition rates reflect systemic resistance to enforcement of these laws. (For rates of arrest, prosecution, conviction and sentencing, comparing sexual assault with other violent felonies, see National Center for Policy Analysis, 1999. For a study of factors contributing to attrition in sexual assault cases, see Frazier & Haney, 1996. For sentencing in child sexual abuse cases, see Cheit &Goldschmidt, 1997.) The wishes and needs of victims are often diametrically opposed to the requirements of legal proceedings. Victims need social acknowledgement and support; the court requires them to endure a public challenge to their credibility. Victims need to 6 establish a sense of power and control over their lives; the court requires them to submit to a complex set of rules and bureaucratic procedures which they may not understand, and over which they have no control. Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes-or-no questions that break down any personal attempt to construct a coherent and meaningful narrative. Victims often need to control or limit their exposure to specific reminders of the trauma; the court requires them to relive the experience. Victims often fear direct confrontation with their perpetrators; the court requires a face-to-face confrontation between a complaining witness and the accused. Indeed, if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law. Victims who participate in the justice system may also fear for their safety, because of the threat of retaliation by the perpetrator. Unfortunately, this fear is often well-founded. Perpetrators of sexual and domestic violence have intimate knowledge which makes it very easy for them to threaten or discredit their victims. To a victim who has already been terrorized and humiliated, the routine procedures of the legal system do not offer much reassurance. Though intimidation of a witness is nominally criminalized, the state offers little in the way of practical protection. Restraining orders are not consistently enforced, witness-tampering and obstruction of justice charges are rarely prosecuted, and witness-protection measures are very rarely implemented for crimes of this kind. Moreover, the accused perpetrator may use the legal system itself as an additional means to harass the victim (Murphy, 1998). In domestic violence cases, for example, it is not uncommon for perpetrators to retaliate against their victims by seeking 7 mutual restraining orders or petitioning for child custody, in order to compel their victims to back down (Quirion et al, 1997). Despite these obstacles, more victims might be willing to participate in formal legal proceedings if they believed that the system offered remedies that could potentially make the ordeal worthwhile. But for many victims, even a successful legal outcome does not promise much satisfaction, because their goals are not congruent with the sanctions that the system imposes. The victim’s vision of justice is nowhere represented in the conventional legal system. Indeed, a common prejudice holds that the victim’s vision of justice should not be represented, because victims thirst only for revenge. THE MYTH OF THE VENGEFUL VICTIM In our system of criminal law, the state, not the victim, is considered the injured party, and it is the state, not the victim, that has the exclusive right to take action against the offender. This is a cornerstone of enlightenment legal theory (Beccaria, 1764). In the words of Arieh Neier (1990, p. 244), a leading contemporary human rights advocate: “In a society of law, we say it is not up to the individual victims to exercise vengeance, but rather up to society to demonstrate respect for the victim, for the one who suffered, by rendering the victimizer accountable.” As the agent of criminal justice, the state codifies standard rules and procedures for establishing guilt and protecting the innocent. The state also establishes uniform, quantifiable standards of punishment to be applied fairly and rationally in proportion to the seriousness of the crime. The evolution of state-based criminal justice is commonly portrayed as a triumph over pre-modern, private or communitarian systems of redress. By taking the initiative away from victims, according to the conventional wisdom, the 8 state curbs the danger of vendettas and blood feuds and sets limits on arbitrary, cruel and excessive punishments. The presumption that the state will be more dispassionate, fairer and less punitive than the victim is rarely questioned. This presumption seems to be based in a deep distrust of the victim’s anger. The righteous anger of women, which violates social norms of compliant femininity, is particularly threatening (Miller, 1976). The victim’s passionate indignation is commonly viewed as a disruptive force, disturbing the peace of the community which is called upon to redress the victim’s wrongs. Sympathy for the victim’s plight tends to dissipate quickly, while the victim’s memory is long. The victim’s unrequited demand for justice can easily become an embarrassment to the community. It is so much more convenient if the victim can only be persuaded to “forgive and forget.” Religious teachings traditionally exhort victims to transcend their anger through forgiveness, rather than taking action against those who have offended them, and the virtues of forgiveness have always been especially recommended to women and to members of other subordinate groups, whose justified resentment might make those in power uncomfortable. More recently, the benefits of forgiveness have been promoted not only for the victim’s soul, but also for her sanity. An initiative by the Templeton Foundation, a private, Christian, non-profit organization, proposes to document the effectiveness of “forgiveness therapy” for victims of crime. Richard Enright (2001), the author of one funded study, describes a year-long program of weekly therapy for incest survivors organized around an explicit agenda of forgiveness. On the basis of very limited data, Enright claims that learning forgiveness produces more “positive results” 9 than any other known treatment for this population, a judgment not generally shared by experts in the field of traumatic stress (Foa, Keane & Friedman, 2000; Connor, Davidson & Lee, 2003). Frederick Luskin (1999), Director of the Templeton-funded “Forgiveness Project” at Stanford University, views the victim’s anger as a “body and mind inflammation,” a “primitive mechanism that demands discharge.” He asserts that learning to “let go” of justified resentment leads to enhanced psychological and physical health. This view of the victim as a diseased person, inflamed by toxic rage, compounds the stigmatizing effect of the original crime. As long as victim is regarded in this demeaning manner, the community vindicates the perpetrator by adding to the victim’s shame. The general societal distrust of victims’ emotions is so reflexive and deep that it amounts to a taboo. Susan Jacoby (1983) describes the operation of this taboo in the expectation that victims of even the most atrocious crimes establish the purity of their motives before seeking redress, by making a ritual declaration that they wish only for “justice not revenge.” The operation of this taboo can also be observed in the fierce opposition to even the most modest legal reforms granting victims rights of inclusion in the criminal justice process. Reforms that permit victims to speak in their own voice have been particularly controversial. For example, many jurisdictions now allow the victim to address the court when a convicted perpetrator is sentenced (the so-called Victim Impact Statement). Critics of this practice presume that victims will inevitably demand excessively harsh punishment, and that the courts may be swayed by inappropriate sympathy for victims (Henderson, 1998; for a more positive view of victim impact statements see Erez, 1999). 10 Challenging the taboo on the retributive emotions, the legal philosopher Jeffrie Murphy invokes Greek myth as a narrative metaphor for the proper foundation of justice. Athena, the Goddess of Wisdom, transforms the Furies from persecuting monsters into Eumenidies (kindly ones) by including rather than banishing them. Expanding on this vision, Murphy argues that the crime victim’s resentment and indignation are in fact valid feelings that deserve social recognition and respect. “Criminal law institutionalizes feelings of anger, resentment and even hatred that we typically (and perhaps properly) direct toward wrongdoers, especially if we have been victims of those wrongdoers….Passions such as resentment can, of course, provoke irrational and dangerous conduct (which passions cannot?), but this is no more reason for condemning them in principle than it would be for condemning the sexual passions. The case for rational control and institutionalization of a passion must not…be confused with a case for the utter condemnation and extinction of that passion (1998, p. 4).” Going further, the philosopher Bernard Williams argues that the capacity to feel indignation, both on one’s own behalf and on behalf of others, is in fact the basis of an important social bond. Rather than a toxic passion that ought to be suppressed, he views indignation as a source of empathy and connection. He explains that people are capable of reacting with indignation not only when their own honor is violated, but also when they witness the dishonoring of others. These “shared sentiments,” according to Williams, “serve to bind people together in a community of feeling (1993, p. 80).” Similarly John Braithwaite, a major theorist of restorative justice, argues that the expression of community resentment and indignation on behalf of the victim is an essential positive element of crime control. In advancing his view of restorative justice, 11 Braithwaite criticizes both right and left-wing positions on crime. He rejects both the punitive, “law-and-order” orientation traditionally associated with the prosecution and the permissive or rehabilitative orientation traditionally associated with the defense bar. He is particularly critical of the traditional left for its virtually exclusive focus on protecting the rights of the criminal defendant, a stance that offers no positive program for holding perpetrators accountable and therefore effectively abandons the crime issue to the right. Braithwaite proposes Restorative Justice as a third way; he advocates “vigorous moralizing about guilt, wrongdoing and responsibility, in which the harmdoer is confronted with community resentment and ultimately invited to come to terms with it (1989, p. 156).” In the conception of sophisticated theorists like Braithwaite, restorative justice principles offer the potential for vindication of the victim that conventional justice so conspicuously lacks. In practice, however, the Restorative Justice movement has evolved out of religious or progressive concerns for the fate of criminal defendants, an abhorrence of punishment, and an idealistic longing for harmony and community consensus. Because the movement has been highly defendant-oriented at the grass roots level, it has reproduced many of the same deficiencies as the traditional justice system with respect to victims’ rights. The concerns of victims are insufficiently represented, and the interests of victims may be easily subordinated to an ideological agenda, in this instance an agenda of reconciliation rather than punishment (Daly, 2002; Stubbs, 2002). Howard Zehr, a major theorist of the movement, admits that he initially viewed victims as a nuisance: 12 “In my earlier work with prisoner defendants, I had not understood the perspectives of victims. Indeed, I did not want to, for they served primarily as interference in the process of finding “justice” for the offender(1990, p. 172).” Zehr’s later work shows an evolution towards greater consideration for victims. He now asserts that “victims must be key stakeholders rather than footnotes in the justice process (2001, p. 195).” This is an important advance for a movement that originated primarily in concern for offenders. It would be unrealistic to expect, however, that a movement that has only recently recognized the legitimacy of victims’ interests could develop a clear vision of justice from the victim’s perspective. For this, one must turn to the victims themselves. The present study, based on the testimony of victims of sexual and domestic violence, was undertaken to explore the question of what justice might look like if victims were the protagonists, rather than peripheral actors, in the dialectic of criminal law. DESCRIPTION OF THE STUDY The study was based on in-depth interviews with a convenience sample of 22 informants, recruited through attorneys, victim witness advocates, or by word of mouth. Most interviews were tape-recorded and transcribed with the informants’ written consent; in two cases the interviews were conducted long-distance by phone and e-mail, and in two cases only handwritten notes were taken during the interview. The subjects were asked open-ended questions about their experiences of victimization, their efforts to seek redress, and their views of what would be required to set things right. 13 The group consisted of 18 women and 4 men, ranging in age from 22 to 60. Two were African-American, one Asian-American and two identified in part as Native American; the others were of European descent. Five were single, ten were married or in a committed partnership, and six were divorced. Though the class backgrounds of the group were quite diverse, most had attained college degrees, and 10 had advanced degrees or professional education. Two were disabled and unemployed; the rest were actively engaged in productive work. Eleven of the informants had been sexually abused in childhood, four had witnessed their mothers and siblings being abused and beaten, five had been sexually assaulted as adolescents or adults, and five had been victims of domestic violence. Two informants were interviewed as the primary support person for a wife or sister who had been raped. Four informants had been victimized both in childhood and as adults by different offenders. For all of the informants, victimization was experienced as a formative event. They believed the traumatic impact of the crime would be with them throughout their lives, and saw recovery as an ongoing process to be measured in years. For many, the crime determined or changed a life path. Several informants had found a way to make meaning out of their experience through a career of service to other survivors. Three became attorneys, two became victim-advocates, one became a mental health worker for troubled adolescents, and two entered the clergy. For the three artists and writers in the group, the trauma was a central theme of their work. In eleven cases a criminal complaint had been filed. Of these, four resulted in conviction and three in a prison sentence for the offender. The prison terms were imposed in one instance each of stranger rape, gang rape, and sexual abuse of a child. A 14 probationary sentence was imposed on a batterer who had brutally beaten and strangled his wife. Of the remaining seven cases, one is still pending, one resulted in acquittal, one was dismissed when a grand jury declined to return an indictment, one was dropped when the victim withdrew her complaint, and three did not go forward because the prosecutors declined to proceed, despite the victims’ wishes. In ten cases, a civil complaint was filed. Five were petitions for restraining orders in domestic violence cases, followed by petitions for divorce. The other five were complaints for civil damages filed in addition to criminal complaints. All five cases were adjudicated in favor of the plaintiff or settled with an award for damages, even though the criminal charges had not resulted in a conviction. (In one case the criminal charge is still pending.) The civil actions were often as fiercely contested as the criminal charges; in five cases the defendant filed a retaliatory lawsuit against the plaintiff. These were uniformly understood to be a form of harassment and intimidation. Though these suits were eventually judged to be without merit and dismissed, they took their toll financially and psychologically. Ten informants made informal attempts to reach some kind of resolution with offenders. Of these, seven never sought intervention from any legal authority, but rather tried to manage the situation entirely through some form of private confrontation. Only one of these attempts resulted in a resolution that fully satisfied the informant. Three others sought to restore communication with an offender after a civil or criminal complaint was resolved. One informant visited her brother in prison after he began attending an offender treatment program. Two informants maintained contact by phone 15 or letter with the former husbands who had battered them, although they were still afraid to meet them face-to-face. Thus, in both groups of informants, those who sought justice through the legal system, and those who sought to resolve matters informally, only a minority were able to achieve what they considered a satisfactory outcome. Those who chose to pursue legal action were somewhat more successful than those who chose informal methods, but neither path provided resolution for the majority of victims. Nevertheless, most informants felt that they had learned a great deal and gained important strengths from their experiences. None regretted the choices they had made, though they hesitated to recommend the path they had chosen to others. THE ENCOUNTER WITH THE JUSTICE SYSTEM For those who sought redress in the criminal justice system, the single greatest shock was the discovery of just how little they mattered. Because the crimes had had such a profound impact on their lives, the victims often naively expected their interests to be of major concern to the authorities. They had trouble understanding that the central focus of the case was on the defendant, not on themselves. Once they filed their complaints and initiative passed into the hands of the prosecution, their cases were resolved in the contest between the state and the defense attorney, while they themselves were relegated to a peripheral role as a witness, useful only as the instrument of the state’s agenda, and unworthy of any particular consideration in their own right. On the basis of her experience, Mary Walsh, a survivor of domestic abuse, wrote up her advice to those choosing to pursue a criminal complaint: 16 “Be prepared for the fact that you will simply be a ‘cog in something turning’ and you had better learn early on not to take things personally. Third parties can’t be expected to take your case as seriously as you do. Even though you will know more about the facts of the case, since you are only a witness, you will not be consulted, and decisions will be arbitrarily made that end up being to the defendant’s advantage. For your own peace of mind, be prepared to throw any illusions about “justice” you might have had out the window (Letter, November 29, 2001).” Many informants experienced their marginal role in the justice system as a humiliation only too reminiscent of the original crime. For this reason, the informants were extremely sensitive to the attitudes of the officials whom they encountered. Those informants (and there were several) who met with sympathetic officials were profoundly grateful. One was so impressed with the services of her victim-witness advocate that she decided to become an advocate herself. But many had vivid memories of being treated with casual indifference and disrespect. Such treatment was inevitably experienced as an official confirmation of the victim’s dishonored status and an endorsement of the perpetrator’s attitude of contempt. Julie Cloutier, a student who was drugged and raped during her first week on a college campus, described her sense of betrayal by the authorities to whom she reported the assault: “The DA didn’t know if she was going to win, so she didn’t want to try. She was the rudest person—I couldn’t believe she was a woman---ruthless, no heart, no sensitivity. She basically told me she didn’t believe me. She was questioning how many beers I had. She said to me, “Julie, I don’t think you really know what happened.” That hurt more than the rape. I’ll never forget that line (Interview, August 20, 2002).” 17 Informants who sought redress through a civil complaint had more control over the conduct of their legal cases. Nevertheless, they also frequently complained of feeling powerless and marginalized in the face of the complex rules and procedures of the legal system, which they often perceived as a cynical game. Ross Cheit, a college professor and attorney as well as a survivor of childhood sexual abuse, described his dual reactions as a member of the legal profession and as a victim: “I knew as a lawyer that you file papers, and then they deny everything. I knew that. It doesn’t mean anything to lawyers, it’s a ritual, but still it affected me. I got those papers and I felt: What do you mean they’re denying it? They know this happened! On the other hand, I could stand back and say: ‘A lawsuit is not about emotions. This is some game I’m playing here, and it’s an adversarial game,’ because I’d already done that professionally, but still it was hard to take (Interview, March 25, 2002).” If informants objected to the idea of the legal system as a game, they objected even more to the idea that the rules could be bent for the rich and powerful. Most informants believed that money and social status had a profound influence on the outcome of their cases. They were very conscious of the resources that each side brought to the conflict, and often perceived that their side was outmatched. Informants who suspected that the offenders had gotten away with their crimes because of their wealth or social position came away deeply disillusioned. Those who did prevail in court often attributed their success to their own privileged status relative to the defendant. Even with a verdict in their favor, these informants came away with a sense of the justice system as compromised and fragile. Mary Margaret Giannini, a minister’s daughter and rape 18 survivor, believed that her family’s standing in the community contributed in some measure to the successful prosecution of the perpetrator: “I was really struck by how lucky I was that the legal system worked for me. I was in group counseling with others who had been raped, and I was aware that their experiences with the justice system were very different from mine. I have no sense that those involved in prosecuting the man who raped me intentionally treated me with more respect than they would any other victim. Nonetheless, I do sometimes wonder how my experience might have differed if I lacked the benefits of my education, family, community support and a name like ‘Mary Margaret.’ (Letter, November 10, 2003).” Many informants also expressed doubts about the integrity of the legal system that went beyond the concern for undue influence of money and status. To some informants, the system seemed intrinsically designed to reward bullies. The adversarial structure of the legal contest appeared to favor those who lacked moral scruples and would fight to win at any cost. This perception is shared by no less an authority than Supreme Court Justice Sandra Day O’Connor: “It has been said that a nation’s laws are an expression of its people’s highest ideals. Regrettably, the conduct of lawyers in the United States has sometimes been an expression of the lowest. Increasingly, lawyers complain of a growing incivility in the profession, and of a professional environment in which hostility, selfishness, and a win-at-all-costs mentality are prevalent (2003, p. 226).” Such an environment afforded an inherent advantage to offenders above and beyond their formal rights and protections. The strategies of domination and control which perpetrators of sexual and domestic violence practiced on their victims seemed well-suited for the legal system. Many informants described instances in which they 19 believed that the offender had successfully manipulated the system, with either the passive acquiescence or the active collusion of the authorities. They often reserved their greatest expressions of outrage not for the offenders, but for the authorities who enabled them to escape being held accountable. Similar complaints were heard from those who sought resolution of their conflicts with offenders through informal means. In the majority of cases, the victims perceived that their families or the wider community allied themselves with the perpetrators, either by passively tolerating their abuses, or by actively excusing and protecting them. Some informants reported being ostracized by families who united to condemn them for disclosing the perpetrator’s crimes. In the experience of this group of survivors, the informal sanctions of family and community were generally even less effective than formal legal sanctions for repairing the harms of sexual and domestic violence. Maria, a student, described her family’s reaction to her disclosure of abuse by a relative: "When I told my family about the abuse, they turned on me!" [One of my relatives] asked me to 'just let it go.' [Another relative] said that she doesn't believe that all of those things happened to me. Additionally, I was literally asked not to go to a family gathering to ensure that the issue of abuse did not come up. The women in my family were more loyal to the abuser than they were to me. That devastated me. It all goes back to the socialization, the same old adage of: 'I need a man.' Women are invisible. Let’s talk about that! (Interview, June 11, 2002).” THE QUEST FOR VALIDATION Whether the informants sought resolution through the legal system or through informal means, their most important object was to gain validation from the community. 20 This required both an acknowledgment of the basic facts of the crime and an acknowledgment of harm. While almost all of the informants expressed a wish for the perpetrator to admit what he had done, the perpetrator’s confession was neither necessary nor sufficient to validate the victim’s claim. The validation of bystanders was of equal or greater importance. Many survivors expressed a wish that the perpetrator would confess, mainly because they believed that this was the only evidence that their families or communities would credit. For survivors who had been ostracized by their immediate families, what generally mattered most was validation from those closest to them. For others, the most meaningful validation came from representatives of the wider community or the formal legal authorities. Flora, a mother-of-two in her 30s, accused her father of incest, but met with denial from him and disbelief from her family-of-origin. She described her longing for validation: “My ideal of a just resolution in my cases would be that my father would confess to EVERYTHING (which may possibly be abuse of others too), in a way that I and the rest of the family could believe and trust… I want to be believed, not just on the basis of my word alone but [on the basis of] of other evidence such as a full confession, or perhaps, (sadly if true), corroboration from another victim, or something that allows me to think that the full weight of the accusation against this apparently good man is not on my shoulders (letter, March 25, 2002).” Beyond acknowledgment, what survivors sought most frequently was vindication. They wanted their communities to take a clear and unequivocal stand in condemnation of the offense. Community denunciation of the crime was of great importance to the survivors because it affirmed the solidarity of the community with the victim and 21 transferred the burden of disgrace from victim to offender. The survivors were keenly aware that the crimes were intended to dishonor and isolate them; they sought, therefore, the restoration of their own honor and the reestablishment of their own connections with the community. Amy Bradford, an artist and rape survivor, described her experience of vindication in a community center where both she and the perpetrator were well known: “Even though the legal system hasn’t worked, I still have my art classes. Bill [her husband] called them up and told them what happened, and the director of the school was so sympathetic and kind. He said, ‘that person is not welcome to come back here again. We want you here, not that person. We’ll keep an eye on you.’ The first time I went back I just cried. I didn’t want to be seen as a victim. It was really hard to be there, but it was important to reclaim my space (Interview April 5, 2002).” APOLOGY While the informants as a group were unanimous in their desire for validation and vindication, they were roughly evenly divided on the question of apology. Some expressed a fervent wish for a sincere apology and believed that this would be the most meaningful restitution that the offender could give. Even those who felt the most vengeful thought that they could be mollified by a genuine apology. For example, Bill Bradford, an attorney and former military officer, fantasized about killing the man who raped his wife, but he was also able to imagine a very different resolution: “I think that if I could put that rapist in a chair,---I know this will never happen— but if he would admit it was a horrible thing, express regret, apologize to her and then do the same for me, I think that would help. Boy, I’m surprised to hear myself say that! (Interview, April 4, 2002).” 22 However, only five informants had actually received what they considered a genuine and satisfactory apology. Only two described a full apology that included an acknowledgment of the offence and the harm, an assumption of responsibility, without qualifications or excuses, an expression of remorse, and an offer to make amends. (For full discussion of what constitutes a genuine apology, see Tavuchis,1991.) Three others chose to interpret ambiguous expressions of sympathy or regret in a favorable light. For example, Bettina, a social worker, described a memorable conversation with her abusive father shortly before he died: “He said, ‘I never knew what you were going through.’ He couldn’t say a lot, but we looked into each others’ eyes, and I saw honesty in his face, depth. It was kind of a reconciliation. The other thing he said—it was strange at the time—I’d wanted him to stop drinking for so long, and he said, ‘well, I’ve stopped drinking.’ Maybe he had it on his mind (Interview, December 3, 2002).” Other informants were skeptical about the value of apologies from perpetrators. They considered it highly unlikely that perpetrators could experience genuine remorse; as Ross Cheit put it: “Offenders are empathetically disabled. They are not capable of a meaningful apology, so they can never provide anything to victims that would be useful (Interview, March 25, 2002).” A number of informants viewed apologies as yet another manipulative ploy enabling offenders to gain community sympathy or to disarm their victims. Mary Margaret Giannini explained her reasons for distrusting an apology that the convicted rapist offered at his sentencing hearing: 23 “The defendant said ‘I would give my life to take back what happened.’ I found myself staring at him as if my eyes could bore a hole through him. At the time I couldn’t even try to believe him. Later I found out that this man was petitioning to get his guilty plea overturned. Any attempt to give him a bit of credit for that apology was completely wiped out when I found out about the appeal. It knocked me off my feet (Interview, October 1, 2002).” Even in instances where self-serving incentives for an apology were less obvious, many informants expressed deep distrust of the motives that might lead an offender to apologize. For example Caroline, a poet and an incest survivor, explained her reluctance to hear her brother’s apology: “I would feel slimed again. I suspect he would enjoy talking about what he did. He wouldn’t really be sorry, in the sense of remorse or regret. And I would be wary of an apology, because then I would feel pressure to forgive him and have a closer relationship. I don’t want a relationship; I want to keep him at a safe distance (Interview, June 7, 2002).” In general, this group of informants seemed to have a sophisticated and nuanced view of what would constitute a genuine apology. While they prized the ideal of reconciliation that a true apology might bring, they often viewed this ideal as realistically unattainable. Wynona Ward, an incest survivor who is also an attorney and advocate for battered women, confronted a multigenerational pattern of abuse in her extended family. After taking an instrumental role leading to her brother’s conviction for molesting a niece, she re-established a relationship with her brother and visited him regularly in 24 prison. Although willing to credit him for his partial acceptance of responsibility, she also recognized that his expressions of regret fell short of a full apology: “Once he came out of denial, I visited him in prison. I was hopeful. He was coming along. He knew how to talk the talk. He cried and said ‘I did wrong, I’m sorry, and I will do what I need to do to make up for what I did.’ But it still wasn’t really his fault. It was still the victim’s fault. What was missing was empathy for the victim. That’s the last thing to come (Interview: August 28, 2001).” Many survivors wished to hear apologies not only from their abusers, but also from the family or community members who, by complicity or inaction, enabled the abuse to take place. They were highly aware of the social ecosystem in which the perpetrators were embedded, and viewed the crime as a responsibility of a community as well as an individual. In the words of Kathy, a survivor of incest and rape: “It’s too easy to say it’s just the perpetrator…It really has so little to do with him, because…had the community, had my family, had the people around the school system who watched my disintegration—and nobody paid attention even to see that I was out of it, coming to school drunk, and nobody said a word in this nice upper-middle-class community—they’re the ones that should be ashamed (Interview, October 29, 2001).” The majority of this group of informants believed that the perpetrator’s enablers and accomplices ought to share some degree of responsibility for his crimes. Some considered the enablers as responsible as the perpetrator, if not more so. Daniel, a mental health worker, explained why he held the Catholic Church hierarchy morally accountable for the criminal behavior of the priest who molested him and numerous other child victims: 25 “He’s sick and he’s dangerous and he’s all of those things, and they knew that and they didn’t do anything about it. They kept assigning him to places where he would be with kids, and they kept not notifying people, and they kept having people who sued them sign confidentiality agreements, and the list goes on and on. They had so many opportunities to do something. Obviously, he made all of his choices too. It’s not that I want to let him off the hook. He’s accountable, and he should be some place where he’s not going to harm anybody. But they---that’s where my rage is---they should have known better (Interview, August 20, 2003).” Two informants attempted to hold a specific organization accountable for harboring a predator. Daniel joined a class action of several hundred victims of pedophile priests in a civil suit that ultimately resulted in a landmark settlement with the Archdiocese of Boston. Ross Cheit filed suit individually against the San Francisco Boys Choir for the damages caused by their camp director, a pedophile who molested him and numerous other victims over the course of many years. The damage award that resulted provided a powerful feeling of personal vindication. However, Cheit was unable to persuade the organization to take an expanded view of its responsibility to the victims as a group. The attorneys were plainly perplexed by his concern for other victims. The remedies that the conventional legal system afforded recognized only individual harms, rather than harm to a wider community. “I wanted them to send a letter to everyone who had been at that camp. It was absolutely the right thing to do. They said: ‘you can’t make us do that; that’s not a remedy to your claim. What do you want?’” (Interview, March 25, 2002). 26 ACCOUNTABILITY Informants were asked to describe in detail what they thought should be done to hold their perpetrators accountable, and to envision what they would consider a just disposition in an ideal world. The majority of informants did not endorse conventional aims either of punishment or of rehabilitation. Contrary to general expectation, most informants were not particularly interested in seeing their perpetrators suffer; punishment for its own the sake was not a high priority. The concept of punishment as a “debt to society” found little support among this group of informants. Only one informant endorsed a conventional retributive view of a prison sentence as payment for a crime. The concept of a debt was more mixed among those informants who had initiated civil actions. For women who had been in long-term marriages with abusive partners, awards of alimony and child support were seen partly as a form of compensation for damages as well as the repayment of a personal debt. For others, an award of monetary damages seemed much more important as a public symbol of the perpetrator’s guilt rather than as private compensation. For example Amy Bradford, who initiated a civil action against the man who raped her, requested as one of the conditions of settlement that the defendant be required to make a donation of 30 dollars to the local rape crisis center. Asked how she had arrived at that figure, she explained that it represented the 30 pieces of silver for which Judas betrayed Jesus. She seemed surprised when asked why she had not requested a larger sum of money, even though she knew that the defendant was wealthy. “I wouldn’t mind if I found out he was destitute,” she said, “but it’s not part of what I fantasize about (Interview, April 5, 2002).” (The defendant paid the thirty dollars.) 27 Despite probing questions specifically designed to encourage free expression of vengeful and vindictive feelings, only five of the 21 informants clearly stated a wish to make their perpetrators suffer. Asked what she wanted to happen to the man who raped her, Sarah Johnson, a nurse, responded: “I wanted him vulnerable. I wish—this may sound really loony—I wish he could feel the worst pain in the world. I wish the worst on him. I know people talk about forgiving, but I’m bitter. I will never be able to forgive him.” A moment later, however, she added: “If he were to say, ‘Sarah, I’m sorry and I need help,’ I would say, ‘Thank you, God!’ I wouldn’t hate him so. He needs help. I’m a nurse, so I take care of people who could be just like him (Interview, August 15, 2002).” Four informants mentioned fantasies of killing the perpetrator. Of these, two were expressing outrage on behalf of other victims rather than on their own behalf. In general, informants tended to be more harsh in their demands for punishment when advocating for loved ones who had been victimized, rather than for themselves. Bill Bradford vented his helpless rage at the man who raped his wife: “I have intrusive images, and I try to convert them to better endings, mostly fantasies of me killing it and ripping it up into little pieces. I refuse to say its name. It makes me sick. I feel awful that I haven’t killed it already. It’s not a human being. It’s a thing. It’s an evil force (Interview, April 4, 2002).” By contrast Amy, the victim, expressed much more ambivalence about her own vindictive feelings. “I started getting so angry. I was fantasizing about doing incredibly violent things to the rapist: stomping him, violating him, hurting and killing, impaling 28 him on a telephone pole, unrealistic, graphically violent fantasies, things that disturbed me to think about. I feel guilty for wishing someone ill (Interview, April 5, 2002).” The majority of informants described similar conflicts regarding their vengeful feelings. Most regarded these feelings as alien to their self-image, and viewed them almost as an imposition from the perpetrator’s psychopathic inner world. By mastering these feelings, they drew a moral distinction between themselves and their abusers. Many were careful to examine their own motives before seeking to hold their perpetrators accountable. Grace Poore, a filmmaker and survivor of incest, explained her concerns about “outing” her uncle, a minister. “I’m wondering, if I don’t expose him to church authorities, is that harboring him? Maybe, but I just can’t do it from a place of vindictiveness, because that would be destructive to me. Exposing him is not just about getting him fired or punishing him. It’s more about protecting the next generation. The revenge motive makes it seem like I need to lash out because I’m still bleeding, and I’m not. What’s interesting is that when it comes to other people’s perpetrators, I want them to suffer because I feel greater outrage on behalf of others who have been violated (Interview, March 7, 2002).” If most survivors were not particularly interested in revenge or in punishment for its own sake, neither were they interested in reconciliation or forgiveness. Most informants viewed these goals as unrealistic and few expressed a wish for a restored relationship with the offender. Only five of the 22 informants mentioned either reconciliation or forgiveness as a desirable goal. Peggy, a psychotherapist specializing in the treatment of battered women, described the process that led to a limited friendship with her ex-husband who had battered her for many years: 29 “First of all, we started off as friends that could always talk, and we re-found that about a year after we separated. Second, this is a phone-only relationship. Third, he went to therapy, made heart-felt amends to me over and over, still cries at times about it. I can’t be 100% sure; it could be manipulation. I know how charming he is. Friends ask how can I talk to someone who tied me up and held a knife to me? I still ask myself that when the memories are strong. But I want to honor the part of myself that stayed in the marriage. To throw someone away after 18 years, what does that say about losing 18 years of my life (Letter, October 24, 2001)?” Peggy added that she had been a grown woman when she entered the marriage had had freely chosen the relationship at the outset. Having regained her freedom, she felt that she could also choose to forgive. Several informants explicitly rejected the idea of forgiveness. Among those who took this position were survivors who took their Christian faith very seriously and had given the matter of forgiveness a great deal of thought. Mary Margaret Giannini, who became an attorney as part of her survivor mission, considered the concept of restorative justice very interesting, but saw no way that it could apply in her own case: “When I think of the man who raped me…reconciliation is not an issue in my mind. Reconciliation: that will most likely never happen. I don’t know that it needs to happen. He doesn’t need my forgiveness. He needs his Creator’s forgiveness. I have no control over that, thank goodness! I don’t want to be part of his recovery process. I’ve had enough work to do on my own (Interview, Oct. 1, 2002).” Anne Marie Hunter, formerly a battered woman and now a minister who directs an organization called Safe Havens Interfaith Partnership Against Domestic Violence, 30 rejected the idea that victims should be encouraged to forgive their abusers. She viewed the expectation of forgiveness as an additional injustice imposed upon victims for the comfort and convenience of others. It is too easy, in her opinion, for bystanders to satisfy themselves with the illusory sense of “closure” that can by gained by pressuring victims to forgive; it is much more difficult for society to take on the task of confronting perpetrators. “Rather than moving victims to forgiveness, she stated,” “We need to be thinking about moving offenders to contrition and changed behavior. We are looking to get beyond ‘I'm sorry, Honey.’ (Interview, November 8, 2001).” While few survivors expressed interest in reconciliation with their offenders, the majority did wish to free themselves from their oppressive burden of anger and indignation. Those who were able to grieve for their losses and restore connections with supportive people in their communities expressed relief when they were no longer constantly preoccupied with a feeling of outrage. Rather than reconciling with their offenders, most survivors aspired to attain a state of mind in which the offender and his offense no longer dominated their thoughts. If forgiveness is understood in this very limited sense of letting go of resentment and moving on with life, then all of the informants aspired to it. Peggy pointed out that this state of mind would more properly be called “acceptance, in the Zen sense (Letter, August 26, 2003).” Or, as Mary Walsh put it: “Forgiveness is giving up all hope of a better past (Letter, November 16, 2001).” Rather than either retribution or reconciliation, the goal most frequently sought by this group of informants was exposure of the perpetrator. It was more important, in their view, to deprive the perpetrator of undeserved honor and status than to deprive him of either liberty or fortune. The informants were unanimous in their wish for family and 31 community to see through the perpetrator’s deceptions and lies. Several informants explicitly stated their preference for exposure over conventional ideas of punishment. In the words of Flora: “I think I ought to believe he should be jailed, because I think it of other men who abuse children. I would think it of my father if he abused someone else. I would practically want capital punishment (although I am opposed to it) if I discovered he had abused my daughters in any way. So I guess that means I want him to suffer if he hurt others, but if it was ‘just’ me, I want him to be seen for what he is by the people who matter to me (Letter, March 26, 2002).” Public exposure of the perpetrator was the most common objective cited both by those who sought criminal sanctions and by those who filed civil complaints. Julie Cloutier, who initiated a civil action against the man who raped her after the prosecutor declined to go forward with criminal charges, explains her purpose: “I wanted him to go to court. Money wasn’t the issue. I wanted him embarrassed. He was going to have to get a lawyer and pay for a lawyer. He was going to have to tell his family. He wanted to sign a confidential agreement. I said no, of course I’m going to tell people about it (Interview, August 20, 2002).” Informants differed in their visions of the consequences of exposure. A few wished for the extreme consequence of shunning and community ostracism. The majority simply wished to deprive the perpetrator of undeserved respect and privilege. They also wanted their standing in their families and communities elevated relative to that of the perpetrator. For those who had been abused by family members, ceremonial gatherings such as holiday celebrations, weddings and funerals were an important 32 barometer of the perpetrator’s standing in comparison to their own. Some informants expressed the wish to be included in preference to the perpetrator. Others simply wanted to be able to face the perpetrator with dignity. Many informants expressed the wish for a confrontation in which they, and not the perpetrators, would walk with their heads held high, and the perpetrators would be the ones to look down in shame. Besides exposure, the objective most frequently sought by this group of informants was safety both for themselves and for other potential victims. In order to ensure a reasonable degree of safety, they sought to set limits on the perpetrator’s freedom of action. Informal social controls were generally preferred to the more formal, and milder sanctions were preferred to the severe, as long as the objectives of safety could be met. Exposure served as the first level of protection; civil sanctions such as restraining orders served as the next level, and arrest and criminal sanctions were reserved only for cases where all other attempts at control had failed. Though informants thought that displays of state power, such as brief arrest, did have an impressive effect, they also recognized that in the long run the duration and consistency of social sanctions were much more important than their severity. From their intimate acquaintance with the perpetrators, these informants understood that effective control of the perpetrators’ exploitative behavior was an ongoing project, and that any safety measures would have to withstand both numerous direct challenges and more covert attempts at evasion. All of the informants described a thoughtful process of risk assessment, through which they attempted to arrive at a reasonable estimate of the perpetrator’s current and future dangerousness and judge the level of force required for containment. They also described an ongoing process of reassessment, so that the safety plan could be modified 33 to match changing circumstances. Peggy, for example, no longer felt the need for a civil restraining order against her ex-husband. She believed that he no longer posed a risk to her, to his other former wives, or to his grown daughter, because all were well aware of his potential for violence and knew how to keep a safe distance. She also gave him credit for recognizing his own dangerousness and avoiding intimate relationships. However, she stated that she would feel it her duty to warn any new partner with whom he became involved (Interview November 1, 2001). Nine informants thought that at least one of their abusers should be in prison. In three cases, the offenders had indeed been convicted and sentenced to a prison term; in five other cases, the offender had been charged with the crime but walked free. (One case is still pending.) In each of these cases, the informants thought imprisonment was warranted because they believed that the offender was likely to abuse others in the future. The factors on which they based their judgments seemed in general quite realistic. Multiple offenses, a repetitive or compulsive pattern of behavior, a well-established established modus operandi, and gratuitous sadism were the reasons most frequently cited. In addition, the informants judged the risk of repetition to be high when the offender’s behavior was tolerated or protected in the community. Sarah Johnson explained why she believed the man who raped her ought to be incarcerated: “The detective told me he knew what happened—he’d done this to between 5 and 10 other girls. There had been complaints, but none of them would press charges. He said, ‘Sarah, you’d be helping many girls if you did.’ When I decided to press charges and he was arrested, his father called us and said, ‘How much do you want? Can’t we just work this out and forget it? My dad hung up on him. His parents have always given him 34 everything, always bailed him out. I don’t know if that kind of person can be rehabilitated. I kept thinking, what if one of those other girls went forward; maybe this would never have happened to me. That’s what made me keep going. I kept thinking I’m protecting someone else (Interview, August 15, 2002).” Informants generally understood the risk to civil liberties implicit in the idea of detention to prevent future crimes. They recognized, however, that failure to restrain predatory behavior of offenders also represents a serious infringement on the public liberty. Many informants were sensitive to the fact that men of color were especially likely to bear the brunt of abuses of state power, while women and children bore the brunt of uncontrolled private violence. In their attempt to balance the competing claims of liberty and safety, they expressed a preference for informal means of social control wherever possible. Richard Wright, an African-American man who became an anti- violence activist after witnessing and learning about domestic and sexual violence in his personal and professional lives, described his ideal for a community-based safety plan: “I think civil restraining orders are helpful. They put everyone on notice that violence is not OK. The way it’s set up encourages the victim to tell the story to someone official and validates the story, which is important. Having advocates around helps. The problem is the next step. Once you get state intervention, the system is going to say, ‘screw you, we have our own agenda.’ There’s a lot of economic and political interest to simplify everything, to say ‘just lock his ass up.’ Ideally what you would want is a community response. Let the victim choose her community. You’ve got to have ten people. Ask them each to do one thing to help her be safer. Include the perpetrator’s buddy, whomever. ‘If he’s going drinking, I want you to walk his ass 35 home.’ ‘If you hear me screaming, here’s what I want you to do.’ Having those people agree, ‘yeah, I’ve got your back.’ (Interview, April 11, 2002).” Though Wright envisioned this model as the ideal in most circumstances, he too agreed that some offenders were simply too dangerous to remain in the community. “We have a saying in the community: some people need to be locked under the jail.” SUMMARY: BRINGING HONOR TO VICTIMS The vision of accountability that emerged from the testimony of these informants differed substantially from conventional views. Of the four basic aims of criminal justice: deterrence, retribution, incapacitation, and rehabilitation, this group generally endorsed only one: incapacitation. Their priority was safety, both for themselves and for others. They preferred to prevent offenders from committing future crimes, rather than to punish them for those already committed. Though they agreed unanimously that rehabilitation of offenders was a desirable goal, many doubted the prospects for rehabilitation of the particular offenders they knew. In most cases, they believed that some degree of ongoing supervision or control of the offender would be necessary to ensure future security. Though they preferred to rely on informal community sanctions or civil restraining orders where possible, they also believed that the use of state power was justified to restrict the freedom of those they considered too dangerous to live in the community. Their judgments on this matter, though inexpert, seemed to be carefully considered and at least as well-informed as professional estimates of dangerousness. (For assessment of dangerousness in criminal offenders see Goodman et al, 2000; Meloy, 2000; Monahan et al, 2001, Prentky et al, 2003.) 36 Justice, from the perspective of these informants, was neither restorative nor retributive in the conventional sense. Their vision of justice combined both retributive and restorative elements in the service of healing a damaged relationship, not between the victim and the offender but between the victim and his or her community. The retributive element of the survivors’ vision was most apparent in their virtually unanimous wish to see the offenders exposed and disgraced. Their aims, however, were not primarily punitive. The main purpose of exposure was not to “get even” by inflicting pain. Rather, they sought vindication from the community as a rebuke to the offenders’ display of contempt for their rights and dignity. The concept of vindication is well expressed in the writings of retributive theorist Jean Hampton (1988, p. 125): “By victimizing me, the wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes. A false moral claim has been made. The retributivist demands that this false claim be corrected. Retributive punishment is the defeat of the wrongdoer at the hands of the victim….that symbolizes the correct relative value of wrongdoer and victim.” The restorative element of the survivors’ vision was most apparent in their focus on the harm of the crime rather than on the abstract violation of the law, and in their preference for making things as right as possible in the future, rather than in avenging the past. Their vision was restorative, also, in their emphasis on the importance of community acknowledgement and denunciation of the crime. Their focus, however, was on their own need for re-integration with their communities, rather than the offenders’ need for re-integration. They recognized the central importance of shaming the offender; but first, they needed to be relieved of their own burden of shame. 37 Restorative justice concepts were developed primarily with reference to non- violent property crimes, where no stigma is attached to victims. In such cases, where a public consensus uniformly supports the victim and condemns the crime, offenders can both be held accountable and be welcomed back into the community through the restorative process of “reintegrative shaming.” In crimes of sexual and domestic violence, by contrast, the person who needs to be welcomed back into the community, first and foremost, is the victim. (For discussions of shame remedies in acquaintance rape see Baker, 1999; Koss, 2000.) Because these crimes, by design, shame and stigmatize the victim, a restorative justice model, which relies on traditional “community” standards, will inevitably fail, for the same reason that the conventional justice system fails. Community standards are the standards of patriarchy. This is as true in tribal and indigenous communities as in highly Westernized modern states. The “community” can not be counted upon to do justice to victims, since public attitudes toward these crimes are conflicted and ambivalent at best. The informants in this study are eloquent on this point; they were as likely to be shamed and humiliated in their own families, schools or churches as in the police station or the courtroom. Adapting restorative justice principles to crimes of sexual and domestic violence would require active feminist leadership and extensive community organizing, in order to create a reliable context of public support for victims. It would also require close and active collaboration with the state authorities, in order to send a clear and consistent message that these crimes are taken seriously, and in order to ensure safety by setting limits on offenders. A number of currently existing programs could serve as models. 38 For example, a court-mandated treatment program for batterers, organized on feminist principles, uses ongoing group confrontation to control and denounce violence against women. The program’s authors (Dobash et al, 2000) describe their vision of justice as “retributive, moving towards restorative.” For additional model programs that meet these stringent criteria, see articles in this volume by Koss, Pennell. The community support that victims so ardently desire does not presently exist. Active political organizing and advocacy are still required to create it. The vision of justice from the victim’s perspective can not be represented either by a right-wing, prosecution-oriented agenda of “getting tough on crime,” nor by a left-wing, defense- oriented agenda of reconciliation. It is perhaps best represented by the movement for victims’ rights, a diverse, grass-roots movement in which women have played a leadership role. The wish to be honored in the procedures of justice is the passion at the heart of this movement. The slogan for National Crime Victims’ Rights Week in 2002 was “Bringing Honor to Victims.” This may seem like a modest goal, but for victims of sexual and domestic violence it is still profoundly radical. As many of the informants in this study discovered through hard experience, no honor, how ever well deserved, was granted to them without a fight, and no one could ever be more committed to the fight than they were themselves. 39 References: Baker, K.K (1999). Sex, rape and shame. Boston University Law Review 79: 663-716. Beccaria, C. (1764; translation 1996). Of Crimes and Punishments. Translated by Grigson, J. New York: Marsilio. Braithwaite, J. (1989). Crime, Shame, and Reintegration. Cambridge University Press. Cheit, R. & Goldschmidt, E.B. (1997). Child molesters in the criminal justice system: A comprehensive case-flow analysis of the Rhode Island docket (1985-1993). Criminal and Civil Confinement 23: 267-301. Connor, K, Davidson, J. & Lee, L. (2003). Spirituality, resilience and anger in survivors of violent trauma: A community survey. Journal of Traumatic Stress 16: 487-494. Daly, K (2002). Restorative justice: the real story. Punishment & Society 4(1): 55-79. Dickerson, D. (2002, March 18). Rallying around the rapist. New York Times, p. A33. Dobash, R.E., Dobash, R.P., Cavanaugh, K., & Lewis, R. (2000): Changing Violent Men. Thousand Oaks CA: Sage Publications. Enright, R. (2001). Forgiveness is a Choice: A Step-By-Step Process for Resolving Anger and Restoring Hope. Washington, DC, APA Life Tools. Erez, E (1999, July). Who’s afraid of the big bad victim: Victim impact statements as victim empowerment and enhancement of justice. Criminal Law Review, 545-556. Foa, E. B., Keane. T. M. & Friedman, M.J. (2000). Effective Treatments for PTSD: Practice Guidelines from the International Society for Traumatic Stress Studies. New York: Guilford. Frazier P.A., & Haney, B. (1996). Sexual assault cases in the legal system: Police, prosecutor, and victim perspectives. Law and Human Behavior 20: 607-628. 40 Giannini, M.M. (2001). The swinging pendulum of victims’ rights: The enforceability of Indiana’s victims’ rights laws. Indiana Law Review 34:1157-1198. Goodman, L, Dutton, M.A. & Bennett, L.(2000). Predicting repeat abuse among arrested batterers: Use of the danger assessment scale in the criminal justice system. Journal of Interpersonal Violence 15; 63-74. Hampton, J. (1988). The retributive idea. In J. Murphy & J. Hampton, Forgiveness and Mercy. Cambridge University Press. Henderson, L. (1999): Revisiting victims’ rights. Utah Law Review 1999: 383- 442. Henderson, L (1998). Co-opting compassion: The Federal Victim’s Rights Amendment. St. Thomas Law Review 10: 579-606. Jacoby, S. (1983). Wild Justice: The Evolution of Revenge. New York: Harper & Row. Kilpatrick, D.G., Saunders, B.E., Veronen, L.G., Best, C.L., & Von, J.M. (1987). Criminal victimization: Lifetime prevalence, reporting to police, and psychological impact. Crime and Delinquency 33: 479-489. Klaus, P.A. (2002, September). Crime and the nation’s households, 2000 (With trends 1994-2000). US Department of Justice: Bureau of Justice Statistics Bulletin, NCJ 194107. Koss, M.P. (1987). Hidden rape: Sexual aggression and victimization in a national sample of students of higher education. In A. W. Burgess (Ed.). Rape and Sexual Assault v. 2. New York: Garland, 3-26. Koss, M.P. (2000). Blame, shame, and community: Justice responses to violence against women. American Psychologist, 55, 1332-1343. 41 Lewis, H. B. (1976): Psychic War in Men and Women. New York: International Universities Press. Luskin, F. Interview with Soarez, R (1999, April 20) Talk of the Nation, NPR. Meloy, J.R. (2000). Violence, Risk, and Threat Assessment: A Practical Guide for Mental Health and Criminal Justice Professionals. San Diego,CA: Specialized Training Services. Miller,J.B. (1976). Toward a New Psychology of Women. Boston, MA: Beacon Press. Monahan, J., Steadman, H., Silver, E., Appelbaum, A., Robbins, P., Mulvey, E., Roth, L., Grisso, T., & Banks, S. (2001). Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence. New York: Oxford University Press. Murphy J (1988). The retributive emotions. In J.G. Murphy & J. Hampton, Forgiveness and Mercy. Cambridge University Press. Murphy, W (1998). Minimizing the likelihood of discovery of victims’ counseling records and other personal information in criminal justice cases. New England Law Review; 32:4. National Center for Policy Analysis (1999, October). Crime and Punishment in America. Washington, DC, NCPA Policy Report # 229. Neier, A. Quoted in Weschler, L. (1990). A Miracle, a Universe: Settling Accounts with Torturers. New York, Pantheon. O’Connor, S.D. (2003). The Majesty of the Law: Reflections of a Supreme Court Justice. New York: Random House Patterson, O. (1982). Slavery and Social Death. Cambridge, MA: Harvard University Press. 42 Prentky, R.A., Janus, E.,& Seto, M.C. (Eds.) (2003, July). Sexually Coercive Behavior: Understanding and Management. Annals of the New York Academy of Sciences 989. Quirion, P., Lennett, J., Lund, K., & Tuck, C. (1997). Protecting children exposed to domestic violence in contested custody and visitation litigation.” Boston Public Interest Law Journal 6:501. Rennison, C. (September, 2002). Criminal victimization 2001: Changes 2000-2001 with trends 1993-2001. US Department of Justice: Bureau of Justice Statistics Bulletin, NCJ 194610. Russell, D.E.H. (1984). Sexual Exploitation: Rape, Child Sexual Abuse, and Sexual Harassment. Bevely Hills, CA: Sage. Stubbs, J (2002). Domestic violence and women’s safety: Feminist challenges to Restorative Justice. In H. Strang & J. Braithwaite (Eds.), Restorative Justice and Family Violence. Cambridge, UK: Cambridge University Press, pp 42-61. Tavuchis, N. (1991). Mea Culpa: A Sociology of Apology and Reconciliation. Stanford, CA: Stanford University Press. Tjaden, P &Thoennes, N. (1998). Prevalence, incidence and consequences of violence against women: Findings from the National Violence against Women Survey. US Department of Justice. NCJ 172837. Williams, B (1993). Shame and Necessity, Berkeley, CA: University of California Press. Zehr, H (1990). Changing Lenses: A New Focus for Crime and Justice. Scottsdale, PA: Herald Press. Zehr, H (2001). Transcending: Reflections of Crime Victims. Intercourse, PA: Good Books. 
work_vd2yvazbtzhanov7rbgz6rm6gy	----	10.1177/1524838005275090TRAUMA, VIOLENCE, & ABUSE / April 2005Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM THE JUSTICE SYSTEM FOR JUVENILE VICTIMS A Comprehensive Model of Case Flow DAVID FINKELHOR THEODORE P. CROSS ELISE N. CANTOR University of New Hampshire This article proposes the idea that there is a de facto juvenile victim justice system, a complex set of agencies and institutions that responds to juvenile victims of crime and violence, including child maltreatment and conventional crime. The ar- ticle offers a schematic model of that system and tries to quantify the case flow through its various components, that is, the likelihood that given certain actions (e.g., a substantiated finding of maltreatment), other actions will follow (e.g., ser- vices be provided). The model also highlights the activities of the system most likely to have consequential effects on victims. We argue that more professionals are needed who understand the system in its entirety, not just their own agency role, and who can help guide victims, families, and other professionals through its com- plexities. More efforts are also needed to integrate and rationalize the system, particularly through information exchange among its components. Key words: sexual abuse, sexual assault, crime, child maltreatment, child abuse THE JUVENILE JUSTICE SYSTEM is the term that typically denotes the system that processes young offenders who have committed crimes or status offenses. However, there is a parallel de facto system that responds to young victims of crime and violence, what might be called the ju- venile victim justice system. It is a complex set of agencies and institutions that includes police, prosecutors, criminal and civil courts, child pro- tection agencies, Children’s Advocacy Centers, victim service, and mental health agencies. The system has a structure and sequence; however, its operation, despite the thousands of cases it handles every year, is not as widely recognized and understood as the operation of the juvenile offender justice system. The juvenile victim justice system is not as widely recognized, in part, because it is a frag- mented system. It has not been conceptualized as a whole or put into place by a common set of statutes in the way the juvenile offender justice system has. Many of the agencies that handle ju- venile victims are part of other systems, not de- signed primarily with juvenile victims in mind. However, increasingly, as policies about juve- nile victims evolve and more professionals spe- 83 AUTHORS’ NOTE: For the purposes of compliance with Section 507 of P.L. 104-208 (the “Stevens Amendment”), readers are advised that 100% of the funds for this program are derived from federal sources (U.S. Department of Justice). The total amount of federal funding in- volved is $1,341,000. TRAUMA, VIOLENCE, & ABUSE, Vol. 6, No. 2, April 2005 83-102 DOI: 10.1177/1524838005275090 © 2005 Sage Publications cialize in this area, the relevance of thinking about a juvenile victim justice system has grown. This systemic concept can help change policy and practice to make the system more re- sponsive to child victims and further the sys- tem’s missions of protecting children and achieving justice. Other practical benefits in such areas as victim assistance, information management, and system design are discussed below. This article describes the major elements of the justice system for juvenile victims and what is known about the flow of cases through this system. Similar to the system for processing ju- venile offenders, it is a system that is governed at the state level and implemented somewhat differently in each community. So there are wide variations in practices and procedures across the country. However, there are impor- tant commonalities among these systems that are possible to describe in a schematic way. Also similar to the justice system for processing juve- nile offenders, the term justice system for juvenile victims includes many objectives (such as reha- bilitation) and many agencies (such as mental health agencies) that are not traditionally thought of as elements of law enforcement and administration. The statistics on case flow here come from multiple sources, many accessible on the Internet, each examining a piece of the juvenile victims justice system. The National Child Abuse and Neglect Data System (NCANDS; U.S. Department of Health and Human Services [USDHHS], 2004) collects and publishes annu- ally data collected by the child protective agen- cies in individual states. The National Incident Based Reporting System (NIBRS; Federal Bu- reau of Investigation, n.d.) is an emerging effort by the Federal Bureau of Investigation to collect more detailed information about crime from lo- cal law enforcement; although, for the 1999 data we use here, NIBRS data come from only 17 states, cover 11% of the United States’ popula- tion, and underrepresent crime experiences of large urban areas. The National Crime Victim- ization Survey (NCVS; Rennison, 2001) is a na- tional survey of the U.S. population ages 12 years and older conducted by the Bureau of the Census on behalf of the U.S. Department of Jus- tice. It gathers a wide range of information from citizens on their crime victimizations, including experiences with law enforcement, but is lim- ited to specific types of victimizations (the vio- lent crimes of physical assault, rape, sexual as- sault, and robbery, and the property crimes of larceny and motor vehicle theft). Similar to NCANDS, the Adoption and Foster Care Anal- ysis System (AFCARS; USDHHS, 2001b, 2003) gathers child protective agency data but focuses on what happens when CPS takes custody, al- most always because of child victimization. The National Survey of Child and Adolescent Well- Being (NSCAW; USDHHS, 2001a) is a longitu- dinal study of 6,100 children to understand short and long-term outcomes for children and families who come into contact with the child 84 TRAUMA, VIOLENCE, & ABUSE / April 2005 KEY POINTS OF RESEARCH REVIEW • The juvenile victim justice system encompasses two subsystems, the criminal justice system and the child protection system, which have consider- able and increasing interaction. • About 67% of reports to the child protection sys- tem were accepted for investigation or assess- ment, and the substantiation/indication rate was estimated to be about 30% of all reports. • About 59% of maltreated children received post- investigation services documented through the child protection system. • Court actions were initiated for 18% of the sub- stantiated victims of child maltreatment, and ap- proximately 19% of those with a substantiated finding of child maltreatment were placed out- side the home. • About 66% of children exiting foster care were re- unified with their families; parents rights were terminated for about 11% of all those in foster care. • In juvenile victimizations that became known to the police, offenders were arrested in 28% of vio- lent crimes and 4% of property crimes. • Charges were filed in an average of 66% of child abuse cases referred to prosecutors, and 79% of cases were carried forward without dismissal. • Defendants pleaded guilty in an average of 82% of child abuse cases, which is almost the same as the percentage of general violent offenders. • The mean incarceration rate for child abuse cases was 54% of convicted offenders, although these rates varied from 24% to 96%. welfare system. The National Incidence Study (Sedlak & Broadhurst, 1996), a survey of profes- sionals, provides an estimate of how many child maltreatment victims become known to the child protection system and other authorities. Additional smaller reports and journal articles have filled several gaps as well. These data sources all have limitations that are widely acknowledged (Finkelhor & Wells, 2003). For example, NCANDS, NIBRS, and AFCARS are all compilations of administrative data from individual states and communities that have differing definitions, statutory frame- works, bureaucratic structures, and operating procedures. For another example, the NCVS has been faulted for its underestimation of crimes committed by family and intimate partners. Nonetheless, for all their problems, these sources do provide some quantification about important policy issues that have often been the source of confusion and debate in regard to child victims. JUVENILE VICTIMIZATION: CRIME AND CHILD MALTREATMENT One of the central complexities of the juvenile victim justice system is that it encompasses two distinct subsystems: the criminal justice system and child protection system (CPS). These sys- tems are typically thought of as quite separate; however, the interaction in cases involving ju- venile victims is considerable and increasing (see, e.g., Cross, Finkelhor, & Ormrod, in press; Sheppard & Zangrillo, 1996a, 1996b; Tjaden & Anhalt, 1994; Winterfield & Sakagawa, 2003). Officially the two systems concern two differ- ent issues, crime and child maltreatment. How- ever, these domains overlap considerably. The crime domain, when it comes to juvenile vic- tims, includes all the offenses customarily seen as violent such as homicides and physical and sexual assaults. However, it also includes non- forcible sex offenses such as incest and statutory rape, property crimes such as theft, and crimi- nal neglect. Across these crime categories, the justice system places no restriction on who the perpetrator might be—family members, strangers, adults, or juveniles. In contrast, the child maltreatment domain, the concern of the CPS, is usually limited by statute to perpetrators who occupy a caretaking relationship to the child victim, and thus tend to be adult family members or other caretakers. Child maltreatment is divided into the catego- ries of physical and sexual abuse, neglect, and emotional maltreatment. Direct overlap between the two systems pri- marily concerns physical and sexual abuse, which are generally considered both child mal- treatment and crimes because they involve as- saults. Episodes of neglect and emotional mal- treatment may or may not be crimes, depending on the acts and state statutes. The concept of child maltreatment rarely in- cludes property crimes, even when committed by caretakers and family members. Those con- cerned with crimes against children also gener- ally ignore property crimes, in part, because they seem so much less serious than the violent crimes and sex offenses that dominate this liter- ature. Nonetheless, law enforcement agencies receive reports every year of hundreds of thou- sands of property crimes against juveniles (Finkelhor & Ormrod, 2000b), which research suggests have significant negative psychologi- cal impact on their victims (Norris & Kaniasty, 1994). These crimes need to be considered to un- derstand the response of the justice system to juvenile victims. It has become increasingly clear that the CPS’s mission can only be done effectively through coordination with the criminal justice system. It has also become evident that the criminal justice system cannot provide true jus- tice without ensuring the current and future protection of the child victims whose cases it processes. So concerns about justice for and pro- tection of juvenile victims have increasingly led professionals from each of the separate systems to look at the operation of their systems in combination. Figure 1 portrays the case flow of what we have termed the juvenile victim justice system. Following Figure 1 from left to right, this article reviews each step in the case flow process for the child protection and criminal justice compo- nents. At each step, we review the research evi- Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 85 F ig u re 1 : T h e J u v e n il e V ic ti m J u s ti c e S y s te m 86 dence, where it exists, for the proportion of cases (and therefore child victims) following a path. We then discuss the implications of this case flow for understanding and improving the response to child victims. For the sake of sim- plicity, many less typical actions that can occur within the system are omitted from the figure. (A color copy of the figure is available at www.unh.edu/ccrc/pdf/justicechart.pdf.) REPORTED AND UNREPORTED VICTIMIZATION The gateway to the juvenile victim justice sys- tem is a report to an authority, which for the most part is either the police or the CPS. Extrap- olation from data in the NIBRS suggests that in 1999 about 900,000 violent crimes against chil- dren were reported to the police nationwide. Three-quarters of these crimes were some type of physical assault and a fifth were some type of sex offense (see Table 1). There were also about 400,000 property crimes against juveniles re- ported; three-quarters of these were larceny and/or theft (Finkelhor & Ormrod, 2000b). The NCANDS records about 2.6 million re- ferrals annually to child protection authorities for suspicion of child maltreatment by caretak- ers (USDHHS, 2004). The majority of victims, 59%, were referred because of neglect by chil- dren’s caretakers. An additional 19% were for physical abuse, and 10% for sexual abuse. (These percentages pertain to reports and differ somewhat from figures in Table 1 that pertain to substantiated maltreatment only.) It is not known how much overlap there is in these crime and maltreatment figures, that is, how many children were logged in as a report to po- lice and child protection. However, the police reports are quite skewed toward older children (71% of the violent crime victims are age 12 years or older), whereas CPS cases are made up predominantly of younger children (74% of substantiated victims are younger than age 12 years). This suggests the two victim popula- tions have relatively modest overlap. Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 87 TABLE 1: Characteristics of Juvenile Victims Coming to the Attention of Child Protection (CPS) and the Criminal Justice Sys- tem (CJS) (data in percentages) CJSb CPSa Violent Property Gender Male 48 48 65 Female 52 52 35 Age 0 to 5 years 40 8 2 6 to 11 years 34 21 11 12 to 17 years 25 71 87 Type of offensec Neglect 51 — — Physical abuse/assault family 10 18 — Physical abuse/assault other 1 59 — Sexual abuse/assault family 4 6 Sexual abuse/assault other 2 14 Multiple types of maltreatment/family 15 — — Multiple types of maltreatment/other 15 — — Other maltreatment 12 — — Robbery 2 6 Kidnap 1 — Homicide 0.1 — Larceny — 77 Vandalism — 22 Motor vehicle theft — 2 a. National Child Abuse and Neglect Data Systems (NCANDS), 2002. b. National Incident Based Reporting System (NIBRS) (based on 11 states only), 2000. c. Adds to more than 100% because of multiple types. The reports to the CPS system come primar- ily from professionals (57%; USDHHS, 2004), who are legally mandated under state law to re- port suspicions of child maltreatment. The larg- est category of professional reporters is com- posed of teachers and educational professionals (16%), followed by criminal justice (14%) and social service professionals (12%). Direct re- ports from alleged victims and parents make up less than 10% of the total. Reports to police about juvenile victimiza- tion, by contrast, tend to come from victims and families. For violent victimizations of children, 29% come from victims themselves and another 30% from another member of the victim’s household (Ormrod, 2002). For property crimes, the proportion coming from victims or their household is even higher. Reports to police from officials such as school authorities and CPS workers are relatively infrequent—21% for violent crimes and 14% for property crimes, re- spectively—much less than the proportion of reports from officials to CPS (57%). As might be expected, compared to adult victimizations, ju- venile victimizations are reported more by fam- ily members and other officials, and less by the victims themselves. Beyond reporting, it is widely recognized that an enormous amount of crime and mal- treatment against children does not ever come to the attention of police or child welfare au- thorities. According to the NCVS, police knew about only 28% of the violent crimes occurring to juveniles ages 12 to 17 years. This reporting rate for offenses against juveniles is substan- tially lower than for offenses against adults. Moreover, because the youngest children in the NCVS (the 12-year-olds) have the lowest re- porting rates, police are even less likely to find out about crimes against children younger than age 12 years (Finkelhor & Ormrod, 1999). Crimes are more likely to be reported to the po- lice when they involve injuries, adult or multi- ple offenders or families who have had prior ex- perience with police or been advised to report to them (Finkelhor & Wolak, 2003). Involvement of school authorities may inhibit reporting to police because many schools try to handle these episodes on their own. C h i l d m a l t r e a t m e n t i s a l s o w i d e l y underreported to authorities, although the data are less precise about how much so. The Na- tional Incidence Study of Child Abuse and Ne- glect (Sedlak & Broadhurst, 1996) found that only 28% of cases known to professionals in the community could be traced to any investigation conducted by the local CPS. The percentage was higher for physical and sexual abuse, (48% and 42%, respectively) than it was for neglect (18%). These statistics can be taken as a crude measure of underreporting by professionals; however, it is not clear to what extent these professionals simply did not report or rather made reports that were screened out by CPS officials (Sedlak & Broadhurst, 1996). In addition, professionals themselves do not know about a considerable amount of child maltreatment. In summary, millions of children annually enter the juvenile victim justice system through reports to police (mostly by victims and their families) and child protective services (mostly by professionals). However, there appear to be millions of additional children whose victim- ization is not reported, and many others whose victimization remains secret. THE CHILD PROTECTION SYSTEM The operation of the juvenile victim justice system varies considerably according to whether the initial report is made to police or the CPS. Thus, this article will describe the pro- cesses separately, starting with a report to the CPS, and then with a report to the police. The path for the CPS is portrayed in the top of Fig- ure 1, with the steps in the process described be- low depicted in chronological order, from left to right, in the figure. Screening It is important to recognize that because state law requires professionals to report so-called suspicions of child abuse, the calls (called re- ports) coming in to the CPS may concern a child who has not truly been victimized. These re- ports of child maltreatment are often cited as statistics on actual maltreated children (as in, 88 TRAUMA, VIOLENCE, & ABUSE / April 2005 “2.6 million abused children reported each year”); however, they are not. Child protection agencies screen out many calls very quickly be- cause they concern suspicions that are judged to be unfounded, contain too little or unreliable in- formation, or concern situations that do not fall within the agency’s jurisdiction. As an overall national average, about 67% of reports are ac- c e p t e d f o r i n v e s t i g a t i o n o r a s s e s s m e n t (USDHHS, 2004). State agencies vary consider- ably in what they are willing and able to investi- gate, with some accepting (i.e., screening in) only very serious and specific allegations, and others conducting at least a minimal inquiry on a much broader range of reports (Wells, 1998). One study found that cases involving sexual abuse, allegations of drug use, families on wel- fare, and direct evidence of maltreatment were more likely to be screened in, and cases involving custody disputes were more likely to be screened out (Karski, 1999). Child Maltreatment Investigation The first objectives of the child protective in- vestigation are to assess and to take whatever steps are necessary to insure children’s safety. Because children may be in danger, child pro- tection investigations need to be timely. State laws require a response within a fixed period of time. Among states that report investigation re- sponse time, the average is about 2 days; how- ever, states vary from 5 hours to about 12 days (USDHHS, 2004). At the investigation stage, workers may authorize a medical examination and an evaluation by mental health or other experts. Investigations are not always part of the child protection process. As of 2001, 20 states had adopted an innovative, so-called two-track sys- tem, in some communities or in the entire state (Walter R. McDonald & Associates, 2001). Cases involving less serious allegations and lower lev- els of risk are not opened for investigation at all, but are instead assessed by child protection workers for the possibility of needed services. Only serious allegations are formally investi- gated. In states with such systems, a large ma- jority of the screened-in reports of maltreatment (71% in Missouri, 73% in Virginia) are being handled on this “assessment only” track (Schene, 2001). In cases in which investigations are done, in- vestigators have authority to take the child into custody on an emergency basis. In Connecticut, for example, child protective workers there may remove children immediately for up to 4 days, typically with the help of the police, if the chil- dren have a serious physical illness or injury or are in immediate danger from their surround- ings or from being unattended (State of Con- necticut, 2004). CPS Referral to Police and Prosecutors Referrals of child protection reports to police and prosecutors occur primarily at the investiga- tion stage. Some state laws, in fact, require auto- matic referral of certain types of maltreatment al- lega tion s to police or prosecutors at some stage of the CPS investigation. In other places, referral to police and prosecutors is more discretionary. Child protection workers in- volve police when they need investigative help or as soon as they confirm evidence that a crimi- nal law has been violated. Referral to police is most consistent and immediate when cases in- volve allegations of sexual abuse, child death, or physical abuse that involves particularly seri- ous injury, brutality, or callousness (see, e.g., International Association of Chiefs of Police, 1977). In some communities, police investigate in- dependently, while in others, child protection workers and police conduct joint investigations (see, e.g., Cross, Finkelhor, et al., in press). In others, police and child protection workers con- duct coordinated investigations as part of a multiagency team. Some jurisdictions have even experimented with turning CPS investiga- tion activities over to police entirely (Cohen, Kinnevy, et al., 2002). Nationally, police are in- Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 89 In states with such systems, a large majority of the screened-in reports of maltreatment (71% in Missouri, 73% in Virginia) are being handled on this “assessment only” track. volved in more sexual abuse investigations (45%) than investigations about physical abuse (28%) or neglect (20%; Cross, Finkelhor, et al., in press). There is great variability, however, among jurisdictions, given the dramatic d i ff e re n c e s i n s t a t e l a w s a n d l e v e l s o f interagency cooperation. Medical Examination A medical examination can provide crucial evidence to substantiate crime or child mal- treatment. It also can assess children’s medical needs and assist recovery by reassuring chil- dren about their body and providing them an opportunity to talk with a trusted authority. Many states and jurisdictions have specialized child abuse medical diagnostic units to perform these exams. The percentage of reported chil- dren who receive medical exams varies greatly across studies but occurs in 10% to 25% of all cases (Berliner & Conte, 1995; Faller & Henry, 2000; Hibbard, 1998; Whitcomb, Goodman, Runyan, & Hoak, 1994). These exams can disclose previous similar or related injuries, can check whether injury de- tails are consistent with the history given by caretakers or reporters, and can sometimes dif- ferentiate accidents and disease conditions from injuries that are likely to have been in- flicted (Jenny, 2002). Injuries and aspects of gen- ital physiology, semen, and hair can also help confirm sexual abuse and help identify perpe- trators. On the other hand, abuse often can nei- ther be confirmed nor disconfirmed by a medi- cal examination. In examinations subsequent to allegations of sexual abuse, definitive physical findings are established in only about one fourth of the cases (Britton, 1998; Kerns, 1998). Substantiation of Child Maltreatment The primary outcome of a child maltreatment investigation is a determination by the investi- gator of whether maltreatment occurred, a de- termination that generally requires a prepon- derance of evidence as its standard of proof. The most common term for this is substantiation; however, other terms such as confirmation or support are also used. In some states (referred to as three-tiered states) there is another category, indicated, which means that evidence is consis- tent with child maltreatment but is not strong enough to substantiate (Depanfilis & Salus, 2003). Substantiation rates, including substantiated and indicated reports, are estimated to be 30% of all reports nationwide (USDHHS, 2004). These rates vary somewhat by type of maltreat- ment and more dramatically by state. For exam- ple, in Massachusetts, allegations were sup- ported in 55% of investigations in 2002, while in New Hampshire, only 9% were substantiated (USDHHS, 2004). Historically, as the number of reports has risen, these rates have declined. This change could be a reflection of increasing con- servatism in substantiation standards, an in- crease in reporting of less serious situations, or a sign of limitations in investigative resources in CPS agencies. When reports of child maltreatment are not substantiated, it can be for a variety of reasons, including failure of the family or other infor- mants to cooperate with the investigation, lack of sufficient evidence about the allegation, dis- covery that the allegation was outside the juris- diction or authority of the agency, or even some- times because of inability of the agency to adequately investigate because of time or man- power constraints. The number of willfully false or malicious allegations is generally shown to be quite small (Everson & Boat, 1989; Jones & McGraw, 1987; Oates et al., 2000). The few states that count intentionally false cases find these have occurred in well under 1% of all investiga- tions (USDHHS, 2004). Some observers have noted that a form of plea bargaining sometimes operates in the substantiation process, whereby reports are unsubstantiated or made for a less serious form of maltreatment (e.g., neglect rather than sexual abuse) in exchange for a com- m i t m e n t t o a c c e p t s e r v i c e s o r o t h e r interventions (Eckenrode, Powers, Doris, Munsch, & Bolger, 1988). Provision of services. An important goal of the CPS is to prevent future episodes of maltreat- ment among the children served. One of the 90 TRAUMA, VIOLENCE, & ABUSE / April 2005 main avenues for this is through preventive or remedial services such as counseling, parent ed- ucation, and family support. According to state data, it takes an average of 7 to 8 weeks from the start of investigation to the actual provision of services (USDHHS, 2004). About 59% of chil- dren who are maltreated receive postinvesti- gation services documented through the CPS, although, once again, the rates among states range from 100% down to only 15%. Although there is widespread concern that the CPS does not do an adequate job of providing services, it cannot be said confidently that the 45% of chil- dren who are maltreated without CPS-docu- mented services all needed services or all failed to get them. For example, informal and familial solutions to child maltreatment situations (e.g., a parent moving in with grandparents) may be deemed adequate solutions from the CPS point of view. Children and families may also receive services from non-CPS sources such as family service or mental health agencies. In fact, refer- ral to services may occur at almost every junc- ture represented in Figure 1, including from the criminal justice system (arrows have been omitted for the sake of simplicity). Court Hearing Families with a substantiated child maltreat- ment finding proceed to a formal court hearing only when child protective workers believe there is cause to remove the child on more than an emergency basis or need to take custody of the child for some other reason. In 2002, court actions were initiated for 18% of the substanti- ated victims of child maltreatment (USDHHS, 2004). There has been a recognition that the child victims involved in these court proceedings need someone who can represent their needs and point of view independent from the state agency bringing the child protection action. Ex- amples are court-appointed special advocates and guardians ad litem. According to reports from a limited number of states, about 80% of these child victims were provided with such representatives. Out-of-Home Placement Removal of a child from their home is cer- tainly the most serious intervention taken by the CPS. Approximately 134,000 child victims were removed in 2002 or about 19% of those with a substantiated finding of child maltreat- ment (USDHHS, 2004). Rates for individual states varied considerably. Most fell between 9% and 34%, although 2 of the 42 states report- ing fell below that range and eight above. The rate of child removal is roughly 6% of the total number of children investigated for suspicion of child maltreatment, and roughly 4% of those reported. An additional 67,000 children who were nonvictims were also removed—typically, siblings of the child victims. Some additional children are allowed to remain in their home, but only with supervision. When removed, children are placed in a vari- ety of different settings. According to the Adop- tion and Foster Care Analysis and Reporting system, three fourths of children in foster care are in foster families, one fourth with their rela- tives, and one half with nonrelatives (Chil- dren’s Bureau, 2001; USDHHS, 2001b). About 10% are placed in institutions and another 8% in group homes (these proportions include some children in foster care for reasons other than child maltreatment). Some children are removed from the home on an emergency basis even during the investi- gation; however, the typical removal is for a lon- ger period and involves action by the court. The median length of stay in foster care is 16.5 months, although this statistic applies to all children in foster care, not just those placed there because of child maltreatment (Child Wel- fare Outcomes, 2001; USDHHS, 2001b). Chil- dren being cared for by relatives tend to stay for longer periods of time because the placement is generally viewed as a permanent one. Reunification Most children placed into foster care, how- ever, do return to their families. In 1999, the per- centages of children exiting foster care to re- Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 91 unify with their families ranged from 31% in Illinois to 85% in Idaho, with the median at 66%. A majority of the reunifications in most states occurred within 12 months (Child Welfare Out- comes, 2001; USDHHS, 2001b). Some children, however, need to reenter foster care following reunification because of further maltreatment or risk of maltreatment. Unfortunately, the chil- dren who do not return to their families or those who reenter foster care are the group who tend to consume the most time and resources from the social service and justice systems and are at the greatest risk for long-term negative outcomes. Termination of Parental Rights In the most serious cases of child maltreat- ment, the state moves to terminate parental rights and place a child for adoption. In 2000, parents of 64,000 children, or about 11% of all those in foster care, had their parental rights ter- minated (Children’s Bureau, 2001; USDHHS, 2001b). Not all terminations occurred solely be- cause of child maltreatment. Moreover, because the mean time to termination is 22 months, it is not accurate to calculate terminations as a per- centage of substantiated maltreatment for the same year because most terminations are from maltreatment cases recorded for prior years. However, based on a crude annual estimate of 800,000 substantiated victims of child abuse and neglect, the rate of terminations per sub- stantiated child maltreatment victims is about 8%. Summary The CPS’s primary goal is to insure child safety; however, it also aims to facilitate deliv- ery of services. On average, about 67% of re- ports to child protective services are screened in for investigation. Nationally about 30% of in- vestigations lead to substantiation, though this rate varies greatly by state. CPS can initiate a number of interventions during or as a result of investigation, including medical examinations, referral to criminal justice, and service delivery by CPS and other agencies. Removing children on an emergency basis or as a result of a court hearing is fairly rare, and nationally most children who are removed are later reunified with their families. THE CRIMINAL JUSTICE SYSTEM In addition to referrals from the CPS, the criminal justice system receives many reports of child victimization from victims, families, and other institutions such as schools. Because the mandate of the criminal justice system is crime, and not simply child maltreatment, the mix of child victim cases coming to criminal justice system attention is very different from that com- ing to the attention of the CPS. Most of these criminal justice system cases (about 70%) in- volve a nonfamily perpetrator, and a little more than one half are youth-on-youth offenses (Finkelhor & Ormrod, 2000a). Very few concern simple neglect or emotional abuse. As men- tioned earlier, the majority of these victims are teenagers (Finkelhor & Ormrod, 2000a). The criminal justice system also receives an esti- mated 400,000 reports per year involving juve- niles who are victims of property crimes (Finkelhor & Ormrod, 2000b). The path for child victim cases entering the criminal justice system is portrayed in the bot- tom of Figure 1. Again, the steps in the process are depicted in chronological order, from left to right. Unfortunately, many of the studies of case processing within the criminal justice system from the victim point of view are limited to cases of sexual assault or sexual abuse or other serious offenses. Much less is known about the experience in the justice system of juvenile vic- tims who experience simple assault, crimes by other youth, and property victimizations. Criminal Justice Investigation It is standard practice for police to investigate reports of juvenile victimization; however, there is little research on the numbers, percentages, or circumstances related to police investigation. For this article, we analyzed data from 12- to 17- year-old victims from the NCVS, a national study that interviewed crime victims. In the wake of a police report, police made contact with juvenile victims in 92% of violent and 79% 92 TRAUMA, VIOLENCE, & ABUSE / April 2005 of property crimes. They actually took a report (i.e., collected information about the crime) in 63% of violent and 72% of the property crimes in which they made contact with the victim. If reports to and investigations by police lead to a suspicion of child maltreatment, police are mandated to report this to child protective ser- vices. Although we know of no data about how often this actually happens, it is supposed to be standard practice as police are mandated reporters by law. Arrest An arrest occurs when police find probable cause that a person has committed the crime that has come to their attention, and they are able to locate and apprehend that person. How- ever, police make an arrest in only a minority of juvenile victim crimes that do come to their at- tention. In our analysis of the NCVS, offenders are arrested in 28% of violent crimes and only 4% of the property crimes against juveniles that become known to the police. (The arrest rate is a bit higher, 32%, using police record data for all juvenile victim violent crime cases from the FBI’s NIBRS system.) Juvenile victim crimes have somewhat lower arrest rates than adult victim crimes with regard to physical assaults, but higher arrest rates for sexual assaults (Rezac & Finkelhor, 2002). The overall low arrest rates reflect the limited resources that police have, the absence of information in many cases about of- fenders, particularly in property crimes, and the fact that many crimes are judged to be relatively minor in nature. Arrests are more common in juvenile victim- izations that involve more serious offenses, such as sexual assaults, aggravated assaults, and when there is a weapon involved (Rezac & Finkelhor, 2002). Arrests are less likely when the perpetrator is a stranger, which reflects the greater difficulty in locating the offender to complete an arrest. An important feature of juvenile victimiza- tion, affecting arrests and other aspects of crimi- nal justice activity, is the fact that a relatively large number of offenders against juveniles, somewhat more than 50%, are other juveniles (Finkelhor & Ormrod, 2000a). The institutions and procedures of the juvenile justice system handle offenses committed by other juveniles. The procedures in this system are somewhat less formal and less public than those of the criminal justice system for crimes by adults. However, they do include analogues to trials, called adjudicatory hearings, and sentencing, called disposition hearings, at which victims may testify, as well as other features such as victim-offender mediation. (To keep Figure 1 relatively simple, we have excluded the specific steps of the juvenile offender justice system; Snyder & Sickmund, 1999, includes a diagram of that system.) Unfortunately, even though there is a large research literature on juvenile justice, the experience of juvenile victims whose offenders are processed in this system—for ex- ample, whether victims typically provide testi- mony in hearings—has been the subject of very little specific study. Victim Compensation Most states have systems for compensating victims of crime for such costs as medical care, counseling, home and auto repair, and replace- ment of stolen items. Victims need to file appli- cations, which are acted on by victim compen- sation boards. Victims may file claims at any point in the criminal justice process, although police refer many to such resources. The convic- tion of an offender is not required for compensa- tion to be awarded (National Association of Crime Victim Compensation Boards, 2003a). Nationally, of all recipients of compensation, 22% were child abuse victims (National Associ- ation of Crime Victim Compensation Boards, 2003b), and more than $37 million were pro- vided for services for child abuse victims. More than one half of this use was in California, which has an active record of using victim com- pensation to support psychotherapy for child victims. There are no data, however, on what percentage of eligible children applies. Nation- ally more than 45,000 claims were approved for victims age 17 and younger, although there is a widespread perception that many victims lack information about the availability of victim compensation funds. Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 93 Decision to Prosecute Either in conjunction with an investigation or after an arrest has been made, cases are referred to the prosecutor. The decisions about prosecu- tion, which the prosecutor manages, vary con- siderably from jurisdiction to jurisdiction. In virtually all jurisdictions, the prosecutor evalu- ates the strengths and weaknesses of the case and the likelihood of success before deciding to proceed, sometimes after talking with victims and other witnesses. Prosecutors also take into account the potential negative effect of trials on child victims. In addition, in many jurisdictions, prosecutors bring the cases before a judge, in a preliminary hearing, and/or before a grand jury, to determine if there is probable cause to take the case to trial. In both situations, children may testify. If probable cause is not established, the case is dismissed. Offenders may be arrested before or after the decision to prosecute. If police have made an ar- rest, cases are almost always forwarded to pros- ecutors for decision (Davis & Wells, 1996; Stevens, Fischer, & Berg, 1992). Once referred for prosecution, the proportion of child victim cases that move on to actual prosecution varies widely. Across 13 studies reviewed by Cross, Walsh, Jones, and Simone (2002), the proportion of cases in which charges were brought against the perpetrator ranged from 28% to 94%, with a mean of 66%. Rates differ considerably across prosecutors’ offices, not only because of the re- sources they have to devote and the priority they give to juvenile victim cases, but also be- cause of differences in what kinds of cases are referred to prosecutors and at which point cases are screened out. Prosecu- tion is less likely when child victims are younger than age 7 years, when children are related to the perpetrator, or when they suffer less severe offenses ( M e n n e r i c h , M a r t e l l , Cross, & White, 2002). These variables probably relate to the availabil- ity of evidence and children’s capacity to talk about the abuse and testify in court. Cases ac- cepted by prosecutors can later be dismissed by the grand jury, the judge, or prosecutors them- selves; however, in the Cross, Walsh, et al. (2002) sample, an average of 79% of cases were carried forward without dismissal. Pleading Guilty Versus Going to Trial If a case is accepted by the prosecutor and not dismissed, a disposition will be reached either by a guilty plea or by a trial. When a child victim case is carried forward without dismissal, the likelihood that the offender will plead guilty is high. According to a review of 19 studies of prosecution of child abuse, an average of 82% of offenders against children pled guilty to at least some charge (Cross, Walsh, et al., 2002), which is the about the same as the percentage of general violent offenders and very close to the 76% of general sexual assaulters who pled guilty. Rates were consistently high across jurisdictions, sug- gesting that prosecutors went forward with cases they believed to be fairly strong and were able to exert considerable leverage in negotiat- ing about charges and sentences. Still, in about 19% of cases, prosecutors failed to obtain a plea, and the cases went to trial. Sentencing Across 14 studies of prosecution of child abuse, the mean incarceration rate was 54% of convicted offenders, although these rates varied from 24% to 96% (Cross, Walsh, et al., 2002). There has been considerable media concern about whether offenders against juveniles re- ceive unusually lenient sentences. An analysis of sentences from a national sample of offenders incarcerated in state correctional facilities found that some of the disparities in sentencing were explained by the fact that offenders against ju- veniles are less likely to be recidivists, less likely to use weapons, and less likely to be strangers to their victims, factors that are associated with sentence length (Finkelhor & Ormrod, 2001). There were still some sentencing disparities re- lated to victim age even after controlling for such variables; however, they all related to of- 94 TRAUMA, VIOLENCE, & ABUSE / April 2005 Across 14 studies of prosecution of child abuse, the mean incarceration rate was 54% of convicted offenders, although these rates varied from 24% to 96%. fenders against adolescents, who did tend to re- ceive shorter sentences. There was no evidence of a leniency bias in favor of those offending against younger children (Finkelhor & Ormrod, 2001). Summary Police investigate most reported juvenile vic- tim crimes but make an arrest in only a minority. Prosecutors are referred the vast majority of these cases with an arrest; however, the propor- tion accepted by prosecutors varies from about one half to three fourths. Generalizing primarily from the experience with sexual assault crimes, cases tend to be dropped on concerns about evi- dence and children’s testimonial capacities. Of cases carried forward, however, 80% end in guilty pleas. Sentences for offenders against young juvenile victims are not systematically lighter than sentences in comparable adult vic- tim cases; however, they may be lighter for of- fenders against adolescents. Juvenile victims are thought to be a sizable proportion of those who receive victim compensation awards; however, many victims may still not be aware of these funds. THE IMPACT OF JUVENILE VICTIM JUSTICE SYSTEM ON VICTIMS As just described, cases involving juvenile victims may pass through a number of institu- tions that are part of this juvenile victim justice system; however, not all of them have an imme- diate or direct impact on the juvenile victim. For example, an offender may be charged, plead guilty, be sentenced, and enter prison without a victim having to see anyone, appear anywhere, or even necessarily know about the events. This is not typical but is theoretically possible in cases in which there is considerable physical ev- idence or eyewitnesses to provide evidence and w h e re t h e p e r p e t r a t o r c o o p e r a t e s w i t h authorities. Identifying the components of the system that have the most frequent and most conse- quential impact on victims is an important part of conceptualizing the juvenile victim justice system. Three particular impacts are salient: (a) interviews and appearances that a child victim must make before officials, (b) family or life ac- tivity disruptions that are the consequence of institutional decisions within the justice system, and (c) direct therapeutic or reparative services that the child victim receives. These impacts can be charted in terms of their sequencing and their likelihood of occurrence, and this is an im- portant adjunct to the overall understanding of the operation of the victim justice system. These impacts have been represented at the bottom of the system diagram (Figure 1) on a scale of vic- tim involvement with the following symbols: circles for interview or testimony, plus signs (+) for family or life activities disruption, and trian- gles for service. The symbols appear larger when the probability of this event is high and smaller when it is only moderately common or less so. The impact of the victim justice system is not confined to these three types of events. Some of the most consequential impacts of these pro- cesses may involve simple information that a victim receives, sometimes quite indirectly. For example, the victim may be told or find out that the prosecutor refused to press charges against the offender or that a perpetrator ’s attorney called the victim a liar, and this may be ex- tremely distressing. However, these events and impacts are more difficult to classify and situate. Interviews and Testimony Of all the events that occur that have an im- pact on a victim, the one with the highest proba- bility is an investigative interview. If the victim- ization is reported to police, a police officer will likely interview the juvenile. If the victimization is reported to child protection, a CPS worker will almost always talk to the child, unless the child is very young. An interview with a police officer occurs in 92% of juvenile victim violent crimes reported to the police according to the NCVS, and an investigation, which typically in- volves a child interview, occurs in 60% of child maltreatment reports recorded by NCANDS. In some cases, there will be more than one investi- gative interview, which can occur as investiga- tors try to gather additional evidence or when Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 95 another agency becomes involved (CPS referral to police or vice versa). Analyzing prosecutor case data from 1988-1991, Smith and Elstein (1993) found that in 96% of cases law enforce- ment interviewed children, and child protective services did so in 46%. When police and social workers both interviewed, however, 64% of the time these were separate rather than joint interviews, and children would typically have to “tell their story” again. Trying to reduce the number of duplicative investigative interviews and their possible neg- ative impact on victims is one of the issues that was most explicitly behind the development of multidisciplinary teams and Children’s Advo- cacy Centers. It has also been an important mo- tive behind the effort to videotape investigative interviews more routinely. The development nationwide of several hundred Children’s Ad- vocacy Centers, and other multidisciplinary team programs during the 1990s, may well have reduced the amount of duplicative interview- ing, although more confirmation of this is needed (Simone, Cross, Jones, & Walsh, 2005). As cited earlier, about 22% of victims of vio- lent crime passing through the criminal justice system receive a medical exam. Victims of sex- ual abuse and physical abuse involving injury are more likely to receive such exams. These ex- ams can be stressful; however, one study found it an equivalent stressor to providing testimony in juvenile court and twice as stressful as talking to a social worker, but not nearly as stressful as testimony in criminal court (Runyan, 1998). Child victims may be interviewed at a num- ber of subsequent junctures. Prosecutors may decide to interview children again even after the police investigation, while making the deci- sion about whether to prosecute and trying to assess the strength of the testimony. As part of the process, a child may be asked to testify at a preliminary hearing or grand jury. Studies have reported that 12% to 31% of children in prose- cuted cases testify at pretrial proceedings (Cashmore & Horsky, 1988; Cross, Whitcomb, & De Vos, 1995; Goodman et al., 1992; Smith & Elstein, 1993). If an actual trial is held, a child may testify again, often in conjunction with some prior meetings with the prosecutor. How- ever, because so many cases end with guilty pleas, relatively few children have to testify in trial court. Only 5% to 15% of cases involve a child victim’s testimony at a trial or a court hear- ing (Berliner & Conte, 1995; Cashmore & Horsky, 1988; Cross, Whitcomb, et al., 1995; Goodman et al., 1992; Martone, Jaudes, & Cavins, 1996; Rogers, 1982). Finally, there are sometimes voluntary opportunities for a victim to provide testimony at a sentencing hearing (see e.g., U.S. Department of Justice, 1999). Services Juvenile victims may also be affected by the provision of services. One of the specific goals of child protective service investigations is to pro- vide services to promote the well-being of chil- dren who are victimized. As indicated earlier, about 59% of children who are maltreated are referred for services. Police or prosecutors as part of criminal justice system processing may also refer children to services; however, there is little systematic documentation about this refer- ral pathway, and it is probably not as frequent a referral as with child protective services. Some specific child maltreatment services have clearly established beneficial impacts. For ex- ample, cognitive-behavioral therapy that spe- cifically teaches children who are sexually abused and their families how to cope with the effects has shown advantages over standard care in several studies (Cohen, Berliner, & Mannarino, 2000; Cohen & Mannarino, 1997; Deblinger, Stauffer, & Steer, 2001). Family Disruption The juvenile victim justice system can also have a major impact on child victims when it re- sults in family disruption, that is, a major change in living circumstances or the household configuration. At an early point in the process, one form of disruption may occur if a child pro- tection worker uses emergency power to re- move an endangered child from his or her home. A disruption may also occur if police ar- rest and hold a parent suspected of a crime against the child. At later stages in the child pro- tection process, a child may be removed from the home by the court either temporarily for fos- 96 TRAUMA, VIOLENCE, & ABUSE / April 2005 ter care placement or subsequently as part of the termination of parental rights. Reunifications are frequently part of this process, when initial removal has occurred, and create other disrup- tions. The sentencing of an intrafamilial abuser to prison may also disrupt the family. Although all these events may have major impacts on children, they occur in only a minority of child victimization cases. Implications This article described in general terms the op- eration of the juvenile victims justice system and what is known about the case flow within that system. The notion that there is such a sys- tem that often contributes to, but sometimes de- tracts from, the justice, safety, physical and psychological well-being of juvenile victims has important implications. We highlight some of them as follows: 1. More people need to understand the opera- tion of the juvenile victim justice system in its entirety. Agency administrators and line work- ers need to know more about the workings of the other agencies in the system, and policy makers and researchers need better knowledge of the system as a whole. Such knowledge is im- portant for planning policy and for managing individual cases, so the decisions in one part of the system can fully take into account actions that may occur in other parts. 2. Juvenile victims need the assistance of pro- fessionals who can orient, guide, and support them and their families throughout their in- volvement in the whole of the juvenile victim justice system. Professionals operating within Children’s Advocacy Centers, or serving as court-appointed special advocates and guard- ians ad litem play such roles, but often only for certain limited aspects of the system process. It makes sense for the support to be much more comprehensive and continuous. 3. More consideration needs to be given to ways to integrate and rationalize the system as a whole. In recent years, considerable effort has been devoted to trying to coordinate certain as- pects of the juvenile victim justice system. This coordination has been implemented, for exam- ple, by conducting joint investigations or developing multidisciplinary teams for sharing information and decision-making. Even more dramatic forms of integration might be possi- ble. For example, the application of criminal sanctions and decision making about child cus- tody and service provision, and even the awarding of victim compensation funds might be centralized into a sin- gle judicial institution. The goals of such integra- tion would obviously be to expedite the processes, coordinate the decisions, and minimize the impact on victims. Where separa- tion between components of the system is necessary (e.g., between criminal justice and support inter- actions with families), better methods are required for assessing which cases belong where and for moving cases be- tween parts of the system as needs change. 4. There is a need for much more information exchange among components of the system. A child can be involved with up to six or seven agencies and a dozen or more professionals during a course of intervention that can last sev- eral years. Information from one part of the sys- tem can have an impact on decisions made in other parts. The criminal investigation of an al- leged perpetrator living in the home, for in- stance, may have a bearing on the decision by the CPS to place children outside the home. The need for confidentiality sets limits, yet informa- tion sharing between agencies often falls short because it is a secondary priority for busy pro- fessionals focused on their primary mission. Whitcomb and Hardin (1996), for example, found that communication between criminal and civil court staff on simultaneous proceed- ings regarding the same child was often mini- mal or nonexistent, which increases the risk that contradictory decisions would be made by the two courts. Where communication is present, it tends to occur in early phases and is often not maintained throughout the child’s contact with the system. Case review and case-tracking sys- tems are steps in the right direction; however, Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 97 Juvenile victims need the assistance of professionals who can orient, guide, and support them and their families throughout their involvement in the whole of the juvenile victim justice system. there is no central repository of information, and methods including new technology for in- suring adequate information flow need to be developed. 5. The most important stages and transitions of the system need to be identified and receive priority in policy development. For example, the concern about child victims in criminal court concentrated policy attention for a long time on ways to mitigate the stress for children of having to testify in criminal cases. However, a systems-level analysis has demonstrated that only a small percentage of juvenile victims actu- ally face the prospect of testifying in criminal court. By contrast, issues related to the stressful- ness and efficacy of child protection interviews or medical examinations have the potential to affect many more children. At some other lev- els, answering questions about why arrests are not made in so many child victim cases or what techniques lead to guilty pleas holds the poten- tial to bring far more justice for child victims than increased knowledge of effective trial procedures. 6. There needs to be greater attention to the fact that the juvenile victim justice system can be the entry point for needed services for thou- sands of victimized children. Agencies that pro- vide services to children and families tend to think about their referral sources simply as other individuals and agencies and the identifi- cation of a need for service as something that happens case by case. However, when those re- ferral patterns are considered as part of a larger system, which involves large numbers of chil- dren with service needs, new realities come into focus. For example, the demand on some chil- dren to talk about their victimization in many different places during an extended period of time suggests the need for system-wise human service professionals to provide children sup- port throughout the process. The fact that many child victims with service needs related to trauma or inadequate care come through the system at predictable junctures suggests new places, time points, and programming for ad- dressing children’s needs. 7. More systematic and comprehensive infor- mation needs to be collected about the opera- tion of the system and interrelationships among the components. There are tremendous gaps in information, and virtually no data collection ef- fort that covers the entirety of the system. Sev- eral steps are needed. Pilot studies that track ju- venile victims through all the steps and stages need to be undertaken. Data elements need to be added to current information systems that track interrelationships within the system. Thus, for example, the police data gathered within NIBRS could record whether a crime was referred to police from child protective services. CPS data might record whether an arrest was made. In addition, although it raises serious pri- vacy concerns, if victims could be recorded in different systems with some common identifier, it might be possible to track victims through various databases to uncover the pathways through the systems. 8. Efforts need to be made to characterize and summarize in a comprehensive way how the ju- venile victim justice system operates in different communities. Some key dimensions need to be delineated so that systems can be compared and contrasted. So, for example, comparative study may establish the criteria for systems that are in- tegrated versus fragmentary, victim oriented, and so on. Initiatives such as these may help to create a juvenile victim justice system more responsive to the needs of the thousands of victims who en- counter it every year. The Child Protection System • Screening: About 67% of reports were accepted for investigation or assessment. • CPS referral to police and prosecutors: Nationally, police were involved in more sexual abuse investiga- tions (45%) than investigations about physical abuse (28%) or neglect (20%). • Medical examination: The percentage of reported children who received medical exams was in 10% to 25% of all cases. • Substantiation of child maltreatment: The substanti- ation or indication rate was estimated to be about 30% of all reports. • Provision of services: About 59% of children who are maltreated received postinvestigation services doc- umented through the child protection system. 98 TRAUMA, VIOLENCE, & ABUSE / April 2005 • Court actions: Court actions were initiated for 18% of the substantiated victims of child maltreatment. • Out-of-Home placement: Approximately 19% of those with a substantiated finding of child maltreat- ment were placed outside the home. • Parental rights: About 66% of children exiting foster care are reunified with their families; parents’ rights were terminated for about 11% of all those in foster care. • All of the above rates for the child protection system vary enormously across states and/or communities, suggesting that there are substantial differences in practice. Criminal Justice Investigation • Arrest: In juvenile victimizations that became known to the police, offenders were arrested in 28% of violent crimes and 4% of property crimes. • Victim compensation: Of all recipients of compensa- tion, 22% were child abuse victims, though it is not known what percentage of victims received compensation. • Prosecution: Charges were filed in an average of 66% of cases referred to prosecutors, and 79% of cases were carried forward without dismissal. • Guilty pleas: Defendants pled guilty in an average of 82% of cases, which is almost the same as the per- centage of general violent offenders. • Sentencing: The mean incarceration rate was 54% of convicted offenders, although these rates varied from 24% to 96%. IMPLICATIONS FOR PRACTICE, POLICY, AND RESEARCH Practice • Greater numbers of individuals need to understand the operation of the juvenile victim justice system in its entirety so decisions in one area can fully take into account actions that may occur in other parts. • Juvenile victims need the comprehensive and con- tinuous assistance of professionals who can orient, guide, and support them and their families through- out their involvement in the whole of the juvenile victim justice system. • Involved individuals and agencies must realize that the juvenile victim justice system can be the entry point for needed services for thousands of victim- ized children and can be utilized as such. Policy • To expedite the processes, coordinate the decisions, and minimize the impact on victims, the system as a whole needs to be integrated. • Much more information exchange among compo- nents of the system is needed. • The most important stages and transitions of the sys- tem need to be identified and receive priority in pol- icy development. Research • More systematic and comprehensive information needs to be collected about the operation of the sys- tem and interrelationships among the components. There are tremendous gaps in information, and vir- tually no data collection effort that covers the entirety of the system. • Efforts need to be made to characterize and summa- rize in a comprehensive way how the juvenile victim justice system operates in different communities. REFERENCES Berliner, L., & Conte, J. (1995). The effects of disclosure and intervention on sexually abused children. Child Abuse and Neglect, 19(3), 371-384. Britton, H. (1998). Emotional impact of the medical exami- nation for child sexual abuse. Child Abuse and Neglect, 22(6), 573-579. Cashmore, J., & Horsky, M. (1988). The prosecution of child sexual assault. Australian and New Zealand Journal of Criminology, 21, 241-252. Child Welfare Outcomes. (2001). Technical report, 1999. Arlington, VA: James Bell Associates. Children’s Bureau. (2001). The adoption and foster care analy- sis reporting system preliminary report. Washington, DC: U.S. Department of Health and Human Services, Administration on Children, Youth, and Families. Cohen, B., Kinnevy, S., Huang, V., Gelles, R., Bae, H.-O., Fusco, R., et al. (2002). Evaluation of the transfer of response for child protective investigations to the Broward County Sheriff’s office. Philadelphia: Center for the Study of Youth Policy, University of Pennsylvania. Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 99 Cohen, J. A., Berliner, L., & Mannarino, A. P. (2000). Treat- ing traumatized children: A research review and syn- thesis. Trauma, Violence, & Abuse, 1(1), 29-46. Cohen, J. A., & Mannarino, A. P. (1997). A treatment study for sexually abused preschool children: Outcome dur- ing a one-year follow-up. Journal of the American Acad- emy of Child and Adolescent Psychiatry, 36(9), 1228-1235. Cross, T. P., Finkelhor, D., & Ormrod, R. K. (in press). Police involvement in child protective services investigations. Cross, T. P., Walsh, W., Jones, L. M., & Simone, M. (2002). Prosecution of child abuse: A meta-analysis of rates of criminal justice decisions. Trauma, Violence, & Abuse, 4, 323-340. Cross, T. P., Whitcomb, D., & De Vos, E. D. (1995). Criminal justice outcomes of prosecution of child sexual abuse: A case flow analysis. Child Abuse and Neglect, 19(12), 1431- 1442. Davis, N. S., & Wells, S. J. (1996). Justice system processing of child abuse and neglect cases (Final Report No. NIJ Grant Number 92-IJ-CX-K014). Washington, DC: American Bar Association Center on Children and the Law. Deblinger, E., Stauffer, L. B., & Steer, R. A. (2001). Compara- tive efficacies of supportive and cognitive behavioral group therapies for young children who have been sex- ually abused and their nonoffending mothers. Child Maltreatment, 6, 332-343. Depanfilis, D., & Salus, M. K. (2003). Child protective ser- vices: A guide for caseworkers—Child abuse and neglect user manual series. Washington, DC: Office of Child Abuse and Neglect. Eckenrode, J., Powers, J., Doris, J., Munsch, J., & Bolger, N. (1988). Substantiation of child abuse and neglect reports. Journal of Consulting and Clinical Psychology, 56(1), 9-16. Everson, M., & Boat, B. (1989). False allegations of sexual abuse by children and adolescents. Journal of the Ameri- can Academy of Child and Adolescent Psychiatry, 28(2), 230-235. Faller, K. C., & Henry, J. (2000). Child sexual abuse: A case study in community collaboration. Child Abuse and Neglect, 24, 1215-1225. Federal Bureau of Investigation. (n.d.). Crime reporting in the age of technology. CJIS: A Newsletter for the Criminal Justice Community, 4(1), 1-2. Finkelhor, D., & Ormrod, R. K. (1999). Reporting crimes against juveniles (Juvenile Justice Bulletin No. NCJ178887). Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Finkelhor, D., & Ormrod, R. (2000a). Characteristics of crimes against juveniles (Juvenile Justice Bulletin No. NCJ179034). Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Finkelhor, D., & Ormrod, R. K. (2000b). Juvenile victims of p ro p e r t y c r i m e s ( J u v e n i l e J u s t i c e B u l l e t i n N o . NCJ184740). Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Finkelhor, D., & Ormrod, R. K. (2001). Offenders incarcerated for crimes against juveniles (Juvenile Justice Bulletin No. NCJ191028). Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Finkelhor, D., & Wells, M. (2003). Improving national data systems about juvenile victimization. Child Abuse and Neglect, 27(1), 77-102. Finkelhor, D., & Wolak, J. (2003). Reporting assaults against juveniles to the police: Barriers and catalysts. Journal of Interpersonal Violence, 18(2), 103-128. Goodman, G. S., Taub, E. P., Jones, D. P., England, P., Port, L. K., Rudy, L., et al. (1992). Testifying in criminal court: Emotional effects on child sexual assault victims. Mono- graphs of the Society for Research in Child Development, 57(5)(229), v-142. Hibbard, R. A. (1998). Triage and referrals for child sexual abuse medical examinations from the sociolegal sys- tem. Child Abuse and Neglect, 22(6), 503-513. International Association of Chiefs of Police. (1977). The police perspective in child abuse and neglect. Alexandria, VA: Author. Jenny, C. (2002). Criminal investigation of sexual victim- ization of children. In J. E. B. Myers, L. Berliner, J. Briere, C. T. Hendrix, C. Jenny, & T. A. Reid (Eds.), The APSAC handbook of child maltreatment (2nd ed., pp. 235-247). Thousand Oaks, CA: Sage. Jones, D. P., & McGraw, J. M. (1987). Reliable and fictitious accounts of sexual abuse to children. Journal of Interper- sonal Violence, 2, 27-45. Karski, R. L. (1999). Key decisions in child protective ser- vices: Report investigation and court referral. Children and Youth Services Review, 21(8), 643-656. Kerns, D. L. (1998). Triage and referrals for child sexual abuse medical examinations: Which children are likely to have positive medical findings. Child Abuse and Neglect, 22(6), 515-518. Martone, M., Jaudes, P. K., & Cavins, M. (1996). Criminal prosecution of child sexual abuse cases. Child Abuse and Neglect, 20(5), 457-464. Mennerich, A. L., Martell, D., Cross, T. P., & White, A. (2002). Case and system predictors of prosecution of child abuse. Unpublished manuscript. National Association of Crime Victim Compensation Boards. (2003a). Compensation for crime victims [Bro- chure]. Alexandria, VA: Author. Retrieved February 23, 2 0 0 3 , f r o m w w w. n a c v c b . o r g / d o c u m e n t s / BrochureCVC.pdf National Association of Crime Victim Compensation Boards. (2003b). Home page. Retrieved February 23, 2003, from www.nacvcb.org/index.html Norris, F. H., & Kaniasty, K. (1994). Psychological distress following criminal victimization in the general popula- tion: Cross-sectional, longitudinal, and prospective analyses. Journal of Consulting and Clinical Psychology, 62(1), 111-123. Oates, R. K., Jones, D. P., Denson, D., Sirotnak, A., Gary, N., & Krugman, R. D. (2000). Erroneous concerns about child sexual abuse. Child Abuse and Neglect, 24(1), 149- 157. 100 TRAUMA, VIOLENCE, & ABUSE / April 2005 Ormrod, R. K. (2002). Reports to police by source: NCVS-2000 (Unpublished raw data). Durham: University of New Hampshire. Rennison, C. M. (2001). Criminal victimization 2000: Changes 1999-2000 with trends 1993-2000 (BJS Bulletin No. NCJ 187007). Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Rezac, S., & Finkelhor, D. (2002). Arrest patterns for offenders against juveniles. Unpublished manuscript. Rogers, C. M. (1982). Child sexual abuse and the courts: Preliminary findings. Social Work and Human Sexuality, 1(1), 145-153. Runyan, D. (1998). Discussion: Emotional impact of the child sexual abuse medical examination. Child Abuse and Neglect, 22(6), 585. Schene, P. (2001). Meeting each families’ needs: Differential response in reports of child abuse and neglect. Best prac- tice/next practice: Family-centered child welfare (pp. 1-14). Washington, DC: National Child Welfare Resource Cen- ter for Family-Centered Practice. Sedlak, A. J., & Broadhurst, D. D. (1996). Third national inci- dence study of child abuse and neglect. Washington, DC: U.S. Department of Health and Human Services. Sheppard, D., & Zangrillo, P. (1996a). Coordinating investi- gations of child abuse: A summary report. Public Wel- fare, 54, 21-32. Sheppard, D., & Zangrillo, P. (1996b). Improving joint inves- tigations of child abuse: A summary report. Washington, DC: Police Foundation. Simone, M., Cross, T. P., Jones, L. M., & Walsh, W. (2005). Children’s advocacy centers: Understanding the impact. In K. Kendall-Tackett & S. Giacomoni (Eds.), Child victimization (chap. 22, pp. 1-24). New York: Civic Research Institute. Smith, B. E., & Elstein, S. G. (1993). The prosecution of child sexual and physical abuse cases (Final report). Washing- ton, DC: The National Center on Child Abuse and Neglect. Snyder, H. N., & Sickmund, M. (1999). Juvenile offenders and victims: 1999 national report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. State of Connecticut, Department of Children and Fami- lies. (2004). Department of children and families policy man- ual. Retrieved June 5, 2004, from www.state.ct.us/dcf/ Policy/Invest34/34-10-4.htm Stevens, G., Fischer, D. G., & Berg, L. (1992). Review and monitoring of child sexual abuse cases in selected sites in Sas- katchewan: Studies on the sexual abuse of children in Canada. Ottawa, Canada: Department of Justice. Tjaden, P., & Anhalt, J. (1994). The impact of joint law enforce- ment—Child protective services investigations in child mal- treatment cases. Denver, CO: Center of Policy Research. U.S. Department of Health and Human Services, Adminis- tration on Children Youth and Families. (2001a). National Survey of Child and Adolescent Well-Being (NASCAW) [Local Child Welfare Agency Survey Report]. Washington, DC: U.S. Government Printing Office. U.S. Department of Health and Human Services, Adminis- tration on Children Youth and Families. (2001b). Safety, permanency, well-being [Child Welfare Outcomes, 1999: Annual report]. Washington, DC: U.S. Government Printing Office. U.S. Department of Health and Human Services, Adminis- tration on Children, Youth, and Families. (2003). The AFCARS report: Preliminary FY2001 estimates as of March 2003. Washington, DC: U.S. Government Printing Office. U.S. Department of Health and Human Services, Adminis- tration on Children Youth and Families. (2004). Child maltreatment 2002: Reports from the states to the National Child Abuse and Neglect Data System. Washington, DC: U.S. Government Printing Office. U.S. Department of Justice. (1999). Attorney General guide- lines for victim and witness assistance 2000. Rockville, MD: Office of Victims of Crime Resource Center. Walter R. McDonald & Associates Inc. (2001). National study of child protective services systems and reform efforts. Washington, DC: Children’s Bureau. Wells, S. J. (1998, June). Responding to reports of child abuse and neglect. Paper presented at the American Associa- tion for Protecting Children 112th Annual Conference, Washington, DC. Whitcomb, D., Goodman, G. S., Runyan, D. K., & Hoak, S. (1994). The emotional effects of testifying on sexually abused children (Research in Brief). Washington, DC: National Institute of Justice. Whitcomb, D., & Hardin, M. (1996). Coordinating criminal and juvenile court proceedings in child maltreatment cases [National Institute of Justice Research Preview]. Wash- ington, DC: National Institute of Justice. Winterfield, A. P., & Sakagawa, T. (2003). Investigation mod- els for child abuse and neglect: Collaboration with law enforcement. Englewood, CO: American Humane Association. David Finkelhor is director of the Crimes against Children Research Center, codirector of the Family Research Laboratory, and pro- fessor of sociology at the University of New Hampshire. He has been studying the prob- lems of child victimization, child maltreat- ment, and family violence since 1977. He is well known for his conceptual and empirical work on the problem of child sex ual abuse, reflected in p ublications such as Sourcebook on Child Sexual Abuse (1986) and Nurs- ery Crimes (1988). He has also written about child homi- cide, missing and abducted children, children exposed to domestic and peer violence, and other forms of family vio- lence. In his recent work, he has tried to unify and inte- grate knowledge about all the diverse forms of child vic- timization in a field he has termed developmental victimology. He is editor and author of 11 books and more than 75 journal articles and book chapters. He has received grants from the National Institute of Mental Health, the Finkelhor et al. / JUVENILE VICTIM JUSTICE SYSTEM 101 National Center on Child Abuse and Neglect, and the U.S. Department of Justice, and a variety of other sources. In 1994, he was given the Distinguished Child Abuse Pro- fessional Award by the American Professional Society on the Abuse of Children. Theodore P. Cross, Ph.D., is a research pro- fessor and director of the Multi-Site Evalua- tion of Children’s Advocacy Centers at the Crimes against Children ResearchCopyright © 2 0 0 5 b y t h e A m e r i c a n S o c i e t y o f Neuroimaging Center at the University of New Hampshire. He has numerous publications on sys- tem response to troubled children, including studies of prosecution of child abuse, outcomes of foster care, and organization of children’s services. He teaches advanced statistics at Brandeis University and maintains a practice in clinical psychology. Elise N. Cantor is a doctoral candidate in the Department of Psychology, University of New Hampshire. Major research interests include adolescent development, development in adulthood, and child maltreatment. 102 TRAUMA, VIOLENCE, & ABUSE / April 2005 
work_vhbj4ubrwfdivnzd53npt6tcga	----	343 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones GENN, HAZEL (2010): JUDGING CIVIL JUSTICE (CAMBRIDGE UNIVERSITY PRESS) 211 PP. El presente año 2012 ha sido extre- madamente relevante para la justicia civil en nuestro país, ya que, como es de público conocimiento, el Ejecutivo presentó en el primer semestre el proyecto destinado a su reforma. Dicho proyecto, que recién comienza su travesía legislativa y respecto del cual pasarán muchos años antes de que se haga realidad, ya ha sido objeto de críti- cas, primordialmente desde otras áreas del derecho y por parte de algunos abogados litigantes. En este contexto, cuando un país considera de forma seria la posibilidad de reformar aquella área del sistema judicial que concentra el mayor número de solici- tudes y la mayor variedad de confl ictos jurí- dicos, se hace necesario conocer y entender las experiencias de otros países que han rea- lizado procesos de reformas a sus sistemas judiciales. El presente libro analiza aspectos centrales de la justicia inglesa y de las con- secuencias del informe elaborado por Lord Woolf, hace más de 17 años, el cual funda- mentó una serie de medidas en materia de política judicial para descongestionar a los tribunales y simplifi car la justicia civil, re- duciendo sus costos. Su título lo dice todo “Juzgando a la justicia civil” y en su país, el año 2009, cuando se publicó su primera versión, causó revuelo en la comunidad le- gal y académica. Antes de revisar en detalle la pre- sente obra estimo pertinente detenerme brevemente en su autora, ya que su historial profesional es clave para la comprensión de su enfoque. Hazel Genn es actualmente la Decana de la Facultad de Derecho del Uni- versity College London y es también profeso- ra en estudios sociolegales. En este contexto el enfoque de la profesora Genn escapa del derecho procesal dogmático, para focalizar- se en una aproximación al funcionamiento concreto del sistema judicial, habiendo realizado diversos estudios empíricos res- pecto del funcionamiento de este y de los problemas que los ciudadanos enfrentan cuando se someten a la administración de justicia. Asimismo, una buena parte de su trabajo profesional ha estado concentrada en el entrenamiento de jueces y de hecho es miembro de la Comisión de designación de jueces (Judicial Appointments Commission), habiendo publicado en 2008 un informe en donde analiza qué tan atractivo resulta para aquellos abogados litigantes altamente califi cados la carrera judicial1. Su perfi l aca- démico conlleva que sus críticas se centren en el funcionamiento concreto del sistema judicial inglés y en particular en la política judicial, la cual ha justifi cado las diversas decisiones tendientes a reformar la justicia civil en aspectos asociados al acceso a la jus- ticia y la diversifi cación procesal. Yendo a la obra, es menester indicar que esta está dividida en 5 capítulos, inclu- yendo una introducción y una conclusión. La introducción del libro titulada “What is civil justice for?” (¿Para qué sirve la justicia civil?), es central en la com- prensión de la visión crítica que el libro 1 Genn, Hazel (2008): The attractiveness of senior judicial appointment to highly qualified practitioners (Directorate of Judicial Offices for England and Wales) Disponible en http://www.ucl. ac.uk/laws/academics/profiles/docs/Hazel/The%20 Attractiveness%20of%20Senior%20Judicial%20 Appointment%20Research%20Report.pdf [fecha de consulta: 14 de noviembre de 2012]. RChD UC 40-1.indb 343RChD UC 40-1.indb 343 15-04-13 9:2615-04-13 9:26 344 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones presenta. En este capítulo la autora sienta las bases conceptuales que justifi can su po- sición crítica respecto de las políticas que en materia judicial ha tomado Inglaterra. Este primer capítulo es, a juicio de quien comenta, de una gran claridad conceptual y por sí solo constituye uno de los grandes aportes del libro. Al respecto, el capítulo se centra en explicar con precisión el alto valor que en una sociedad contemporánea debe darse al sistema de justicia civil. En este sentido, la profesora Genn sostiene una visión de la justicia civil que escapa de un concepto “privatista”, concibiéndola como un “bien público” (p.16 y ss)2, el cual entrega estabi- lidad social mediante el otorgamiento de un sistema de resolución de confl ictos pacífi co que a su vez permite el buen funcionamien- to social y el intercambio económico me- diante la existencia de reglas claras para el libre comercio de los bienes. Asimismo, la justicia civil no solo permite resolver pro- blemas entre los ciudadanos, sino que per- mite que ellos puedan sujetar y controlar la conducta del Estado, mediante el ejercicio de sus derechos ante los tribunales. En este contexto, resulta clave para el rol público de la justicia civil comprender la relevancia del precedente en el sistema inglés, ya que permite que mediante unos pocos fallos el sistema pueda fi jar una ju- risprudencia que establece reglas del juego 2 Más adelante en su libro hace suya una defi nición de bien público acuñada por la Comisión de productividad del Gobierno australiano, que indica: “Bien público son aquellos cuyo consumo por un individuo no reduce el consumo de otros individuos y donde no es posible impedir el acceso a otros individuos (por ejemplo, la defensa nacional)”. Genn, Hazel (2010): Judging Civil Justice (Cambridge University Press) p. 48, cita 28 (la traducción es mía). claras para todos los actores relevantes3. Asimismo, resulta fundamental el mismo precedente para que el sistema judicial cumpla su rol de facilitador de cambio so- cial, mediante la producción de otras tantas decisiones “claves”, que se adelantan a las leyes y políticas públicas. Un segundo aspecto relevante que destaca la autora dice relación con la im- portancia que debe asignársele al proceso, en particular al propósito que tienen las reglas procedimentales4, en virtud de dos razones: La primera es lo que ella identifi ca como la vinculación del proceso con la “jus- ticia sustantiva”. Sostiene que una decisión justa supone la aplicación correcta de prin- cipios legales respecto de una determinada situación fáctica. Afi rma que es el proceso, las reglas procedimentales, las que permiten determinar con un mayor grado de certeza los hechos a los que se aplicará el derecho, particularmente las reglas de evidencia. Sostiene entonces que el procedimiento incrementa las probabilidades de tomar de- cisiones judiciales acertadas5. La segunda razón dice relación con el debido proceso (procedural fairness), el cual permite que las personas acepten un resul- 3 “It is arguable that for civil justice to perform its public role adjudication and public promulgation of decisions are critical. This is the public role of the judge. Adjudication provides the framework for settlements. That it is underpinned by coercive power provides the background threat that brings unwilling litigants to the negotiating table. While the reality is that most cases settle, a fl ow of adjudicated cases is necessary to provide guidance on the law and, most importantly, to create the credible threat of litigation if settlement is not achieved”. Genn (2010) p. 20. 4 It has been argued that legal procedure is a ritual of extreme social signifi cance and that the characteristics of a civilized country are revealed not so much through the substantive law as in the practice of and procedure of the courts. Genn (2010) p. 13. 5 Genn (2010) p. 14. RChD UC 40-1.indb 344RChD UC 40-1.indb 344 15-04-13 9:2615-04-13 9:26 345 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones tado adverso cuando se les han garantizado condiciones mínimas como la oportunidad de ser oído, de infl uenciar al juez y cuando son tratados con cortesía y respeto. Al fi nalizar esta idea la autora ade- lanta el problema que intersecta todos los capítulos del libro, la difícil relación entre la efi ciencia y la justicia sustantiva o como ella lo plantea “¿Cuánta justicia podemos pagar?”6. La posición de Hazel Genn en lo que sigue del libro es la de que la política judicial en Inglaterra ha olvidado o más bien ha desestimado la idea de que el co- rrecto funcionamiento de la justicia civil es algo socialmente relevante y ha permitido la degradación paulatina de esta, mediante las reformas legales y el discurso político detrás de ellas. El segundo capítulo del libro se titula elocuentemente “Civil Justice: how much is enough?” (Justicia Civil: ¿Cuánta es sufi ciente?) y en él la autora explora, primero a nivel comparado en los sistemas de tradición anglosajón y posteriormente en Inglaterra, el paulatino decaimiento de la justicia civil. Si bien la autora distingue la situa- ción de Inglaterra respecto de los Estados Unidos, identifi ca un factor común en este decaimiento. Se trata de lo que ella denomi- na un discurso o retórica antiderecho (anti- law), en la cual se resalta a la justicia civil como un escenario en donde se encuentran demandantes oportunistas, guiados por abogados ambiciosos, que pueden actuar gracias a jueces activistas y jurados parcia- les, que de forma caprichosa entregan enor- mes sumas de dinero contra empresarios y 6 “How much procedural justice do you need to achieve an appropriate degree of substantive justice?” Genn (2010) p. 15. gobiernos que han actuado sin culpa algu- na7. Asegura que esta forma de describir la justicia civil ha llevado a reformas legales reduccionistas. Adicionalmente la autora manifi esta que este mismo discurso ha permitido que las autoridades presenten la justicia civil, en contraposición con la justicia penal, como un mero problema entre particulares, que realmente no se trata de derechos que están en disputa sino que menores “choques” de interés, problemas que pueden resolverse en mediación8. Discurso que claramente re- mueve la idea de bien público de la noción de justicia civil. Resulta interesante la particular si- tuación de Inglaterra y la visión de política judicial que se da en ese país respecto de la justicia civil. Para Genn si bien Inglaterra se ve afectada por esta retórica de la justicia civil como un problema entre “privados”, la situación inglesa destaca ya que el de- caimiento de la justicia civil es, de alguna forma, una consecuencia intencional de la política judicial imperante. Afi rma que este decaimiento se debe primordialmente a que existe un único pre- supuesto monetario para el funcionamiento integral del sistema judicial y que ese pre- supuesto es consumido en mayor medida por los costos asociados al funcionamiento del sistema criminal, particularmente legal Aid (asistencia jurídica gratuita)9. En este sentido, indica que todas las decisiones destinadas a reducir el ámbito de acción de la justicia civil, de simplifi car sus procedi- mientos, de aumentar la mediación, entre otras medidas, se deben primordialmente a liberar presupuesto para que pueda funcio- 7 Citando a Marc Galanter. Genn (2010) p. 31. 8 Genn (2010) p. 32. 9 Genn (2010) p. 38. RChD UC 40-1.indb 345RChD UC 40-1.indb 345 15-04-13 9:2615-04-13 9:26 346 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones nar el sistema penal. Es por ello entonces que el gobierno ha fomentado la visión antiderecho. Un punto que vale la pena destacar en este capítulo dice relación con lo que podría denominarse el “anecdotismo”, es decir, el producir políticas públicas en ma- teria judicial sin tener datos e información general acerca del sistema, sino que basarlas en buena medida en anécdotas10. La auto- ra menciona que el informe realizado por Lord Woolf, que dio origen a la actual polí- tica judicial, estaba primordialmente basado en información anecdótica y que se les daba particular peso a aquellas historias terribles y no a las experiencias ordinarias. Esto puede tener impacto en los re- sultados de las reformas judiciales. En este caso resulta interesante la constatación de la autora respecto de las fi nalidades de reducir tiempos, costos y complejidad del sistema de justicia civil, las cuales no se han visto satisfechas hasta la fecha, indicando que cada día que pasa las reglas procedimen- tales se complejizan11 y que el costo de la litigación se ha incrementado y adelanta- do, debido a la imposición de protocolos destinados a prevenir la litigación y a la satisfacción de las órdenes de los tribunales derivadas del case Management12. En lo que sí el sistema ha sido exito- so, afi rma Genn, es en sacar casos del siste- ma judicial, idea que explora con detalle en el tercer capítulo referido a la mediación. Con todo, en el segundo capítulo termina con una refl exión interesante. En el con- texto de un sistema judicial que siempre se ha caracterizado por una alta tasa de nego- ciación, es igualmente necesario desarrollar 10 Genn (2010) p. 64. 11 Genn (2010) p. 56. 12 Genn (2010) p. 57. un mecanismo que permita discriminar qué casos seguirán el conducto hacia la la- bor adjudicativa del juez y cuáles no. Si se sacan casos del sistema judicial de forma indiscriminada, se pierden las cualidades de la labor adjudicativa, que permiten me- diante pocos casos generar precedente que actualiza el derecho y defi ne las reglas del juego. La idea más provocadora de Genn es que esta cualidad quedará reservada no para aquellos casos en que sea necesario permitir el desarrollo del common law, sino que para aquellos en donde se trata de partes que no negociaron por ser testarudas o tacañas13. El tercer capítulo del libro está dedi- cado a la resolución alternativa de disputas: ADR and civil justice: what’s justice got do with it? (RAC y justicia civil: ¿Qué tiene que ver la justicia en esto?). El capítulo explica con detalle la política inglesa de fomento a la mediación, primero incrementando los poderes de los jueces para poder imponer costas a las partes que no han sido “razonables” al mo- mento de rechazar la mediación14 (con in- dependencia de que hayan o no obtenido la victoria posteriormente), para a ir más allá y condicionar la entrega de legal aid solo cuando la persona primero tratase de recu- rrir a la mediación15. Existió un intento por establecer mediación obligatoria, pero esta fracasó, sin embargo la política sí ha sido exitosa en avalar la retórica antiderecho, que deja muy en claro que al fi nal se trata de disputas entre intereses contrapuestos, que no justifi can la imposición de la autori- dad judicial16. 13 Genn (2010) p. 75. 14 Genn (2010) pp. 95-100. 15 Medida introducida por el Access to Justice Act de 1999. Genn (2010) p. 104. 16 Genn (2010) p. 96. RChD UC 40-1.indb 346RChD UC 40-1.indb 346 15-04-13 9:2615-04-13 9:26 347 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones Genn cuestiona esta política de én- fasis en el ADR en virtud de dos conside- raciones. La primera dice relación con los números y la segunda se refi ere al acceso a la justicia. La autora cita datos que demuestran que en términos de duración de los proce- sos no existen diferencias relevantes entre un caso que fue objeto de mediación y uno que no17. Más importante, deja claramente establecido que cuando la mediación (casi obligatoria a estas alturas) falla si se pro- duce un efectivo incremento en los costos que las partes deben pagar18. Es decir, y en esto el sentido común acompaña a los da- tos, la mediación siempre será más efectiva cuando las partes entran preparadas para ella, lo que ocurre cuando tienen la inten- sión de negociar. La idea más provocadora de la autora en este capítulo se refi ere a la vinculación entre acceso a la justicia y la mediación, en el entendido de que la política judicial afi r- maría que la mediación facilita el acceso a la justicia. La profesora Genn rebate con mu- cha intensidad esta aseveración y de hecho soporta la idea opuesta, que todo el objetivo de la mediación es a fi nal de cuentas sacar los casos del sistema judicial y por tanto no facilita el acceso a la justicia19. Esto se debe a que la respuesta que provee la mediación no es realmente justicia, ya que este método supone que las partes en confl icto deben dejar de lado su visión de que están exigien- do derechos y focalizarse en resolver el pro- blema. Sostiene que la mediación no está interesada en el resultado correcto, sino que 17 Posteriormente morigera su discurso respecto de casos que involucran incumplimiento contractual. Genn (2010) p. 112. 18 Incremento entre 1.500 a 2.000 libras esterlinas. Genn (2010) p. 113. 19 Genn (2010) p. 116. en solucionar el problema, sacrifi cando así lo que ella llamaba “justicia sustantiva”20. Vale la pena destacar que la autora afi rma, aunque después de su discurso es difícil de creer, que no se opone per se a la mediación. Sí es interesante el argumento de que los Estados recurren a la mediación no en función de sus propias virtudes, sino que para evitar tener que arreglar aquellos sistemas judiciales defectuosos. El cuarto capítulo del libro se titula Judges and civil justice (Jueces y la justicia civil) y concentra su atención en el rol del juez en el sistema judicial. Debe señalarse que si se compara este capítulo con los otros tres, es a mi juicio el menos sistemá- tico y por tanto el más débil. La autora se hace cargo de este problema aludiendo a que particularmente en Inglaterra, a dife- rencia de otros países del common law, no ha existido un sector de la academia que haya estudiado con detención la labor ju- dicial21. El principal aporte de este capítulo es el siguiente. Hazel Genn afi rma que para realmente comprender cómo funciona (y así poder reformar adecuadamente) un sis- tema de justicia civil es imperioso entender cual es la labor que realizan los jueces. Esta comprensión debe ir más allá de la lectura detalla de la jurisprudencia y de los criterios o estándares jurisprudenciales. Sostiene la autora que es necesario entender en la práctica de qué forma los jueces hacen su trabajo. Se cuestiona la poca literatura e investigación disponible que se focaliza en entender la labor de los 20 “The mediator does not make a judgement about the quality of the settlement. Success in mediation is a settlement that the parties can live with. The outcome of mediation is no about just settlement, it is just about settlement”. Genn (2010) p. 117. 21 Genn (2010) pp. 129-143. RChD UC 40-1.indb 347RChD UC 40-1.indb 347 15-04-13 9:2615-04-13 9:26 348 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones jueces en la determinación de los hechos (fact-finding), particularmente critica el poco tiempo que se dedica en el entrena- miento judicial a comprender el proceso de valoración de la declaración de un testigo. Resalta la necesidad de identifi car qué tipo de conductas judiciales son benefi ciosas a la hora de dar la impresión de imparciali- dad22. Lo mismo puede decirse de la diversa labor que realizan los jueces de primera ins- tancia y los de las Corte Superiores. En este caso Genn sostiene que una comprensión acabada de la conducta judi- cial (judicial behaviour) resulta fundamental para la legitimidad de las decisiones judicia- les y del sistema judicial en su conjunto23, así como para el adecuado entrenamiento y, por sobre todo, la elaboración de un adecuado proceso de selección de jueces, en donde pueda defi nirse con claridad las des- trezas mínimas que todo juez deba tener24. Es necesario saber cuando estamos frente a un “buen juez”. El resto del capítulo se centra en ideas generales que constatan la relevancia de la labor judicial y el análisis primordial- mente del trabajo de Richard Posner en su libro “How judges think”, en el cual este juez federal norteamericano discurre sobre las formas de razonamiento judicial. El capítulo si termina de forma in- teresante cuando recoge el testimonio de diversos jueces ingleses que dan cuenta del cambio de rol que han tenido que asumir en virtud del case Management y de los recortes presupuestarios sufridos, muchas veces sacrifi cando justicia por una respuesta rápida. Resulta relevante la lucha interna de 22 Genn (2010) pp. 132-133. 23 Genn (2010) p. 140. 24 Genn (2010) pp. 141-142. algunos magistrados entre el rol de proveer justicia y de cuidar recursos. El libro fi naliza con una conclusión bastante escueta, la que se debe a que su rol es más que nada reiterar las conclusiones que en cada capítulo se han ido presentan- do. La queja fi nal no deja de ser relevante, la necesidad de contar con investigación interdisciplinaria y datos para entender a cabalidad el funcionamiento del sistema de justicia civil25. Es deber fi nalizar esta recensión ha- ciendo dos refl exiones. La primera de ellas se refi ere al aporte general de la publicación al presentar una crítica al proceso de reforma judicial que mezcla adecuadamente una perspectiva eminentemente empírica con una visión de la justicia civil que la enaltece al lugar que le corresponde en nuestros sistemas judiciales democráticos. El libro muestra con claridad que los datos y las experien- cias son información que debe ser puesta a disposición de una postura, ya que como es sabido los datos siempre pueden ser leídos en un sentido u otro. Es decir, responder la pregunta hacia dónde queremos reformar la justicia civil supone o exige una visión del rol que esta debe tener. Reformar por refor- mar no tiene sentido. La segunda refl exión alude a la mira- da disonante que el libro plantea respecto de algunas de las ideas que en los procesos de reformas judiciales en América Latina y en Chile se han ido planteando. Consi- dero que más allá de que uno pueda o no coincidir con los argumentos de la autora, es exitosa en su misión de sembrar la nece- sidad de volver a discutir y examinar ciertos mecanismos que las reformas judiciales ya 25 Genn (2010) p. 183. RChD UC 40-1.indb 348RChD UC 40-1.indb 348 15-04-13 9:2615-04-13 9:26 349 Revista Chilena de Derecho, vol. 40 Nº 1, pp. 341 - 347 [2013] Recensiones vigentes y la futura reforma procesal civil pretenden incorporar. A mayor abundamiento, las críticas de la autora a la puesta en marcha de refor- mas legislativas a los sistemas procesales sin contar con un conocimiento acabado de la realidad que se pretende reformar son ple- * Profesor de Derecho Procesal y Litigación, Uni- versidad Diego Portales. Coordinador Programa de Reformas Procesales y Litigación. Abogado y Magís- ter en Derecho Penal y Procesal Penal, Universidad Diego Portales. namente aplicables a algunas iniciativas le- gislativas que se encuentran en desarrollo en nuestro país, entre ellas la reciente iniciativa del Poder Ejecutivo de reformar el proceso penal fundada en algunos casos mediática- mente complicados. Claudio Fuentes Maureira* RChD UC 40-1.indb 349RChD UC 40-1.indb 349 15-04-13 9:2615-04-13 9:26 
work_vhumvfspz5gobneag3ozjrhnpa	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221738841 Params is empty 221738841 exception Params is empty 2021/04/06-03:20:37 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221738841 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:37 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_vhztzc2zkbhbleprk42ps72w4m	----	Book reviews 207 they are unacquainted with the work of games theorists and welfare economists. Hare, however, shows himself well aware of the difficulties; and there is great force in his contention that they face all moralists who attach any impor- tance to doing social good or preventing social harm, and not just utilitarians. Part III seeks to show why we should go in for critical thinking, conceding that there is no logically compelling argument against the amoralist, but endorsing a probable argument in pru- dence against bringing up children to be such. It is further argued that it is logi- cally impossible for there to be a consist- ent, non-utilitarian fanatic. Here, as throughout, it is maintained that critical moral reasoning is both philosophically justified in terms of the concept of moral judgments as universalizable prescriptions and capable of directing ideally acute, sensitive, fully-informed people to rational solutions to practical questions. Actual human beings, of course, fall short; but rational solutions remain possible in principle. Hare is unquestionably the most influential British moral philosopher of the last 30 years. His book will inevit- ably be of immense interest to fellow philosophical practitioners, who will want to see how he has qualified and developed his views. Hare, however, clearly hopes to reach a wider public, feeling that 'unless some way is found of talking about [urgent practical issues] rationally and with hope of agreement, violence will finally engulf the world'. I am sure that an understanding of the present book would greatly improve public discussion; but I fear that it may not exert the wide direct influence that it should. Hare is an exceptionally care- ful thinker and a clear-headed writer; but his book is not wholly accessible to the lay reader. It comes across as a report on work in progress, shaped as often as not by the objections of critics, and com- pressed by a notable reluctance to bore the reader by repetition of other writ- ings or extended discussion of matters not central to the main argument. These intuitions have merit; but critical thought should convince the author that he could do good by expressing himself at greater length and in a more relaxed and less argumentative manner. He acknowledges debts to Kant and Mill. I think he could surpass the rigour of the former in a work as widely readable as the Utilitarianism or Liberty of the latter. PROFESSOR R F ATKINSON Department ofPhilosophy The University ofExeter Justice and Health Care Ed Earl E Shelp Holland, D Reidel Publishing Co (Volume 8 of Philosophy and Medicine series) Dfl 6o US $3I.50 (paperback Dfl 30 US $14-95) The dominant emphasis in medical ethics during the last decade has been on specific moral problems ofindividual or small group decision-making. Analysis has concentrated on issues such as abor- tion, fetal research, care of the termi- nally ill, drug abuse and organ trans- plantation etc. The objective has been to articulate and assess the parameters for moral decision-making in these specific contexts of medical care. Insofar as bioethicists have stressed analysis of these 'micro' issues, there has been a corresponding lack of sus- tained analysis of the institutional character of medicine and health care provision - the 'macro' structure within which the micro issues arise. The Shelp volume attempts to correct the imbal- ance of focus by i) examining the health care institutions within which micro problems arise; 2) investigating the larger array of institutions of which the health care sector is only one part. Key concepts examined throughout the vol- ume are those of 'justice', 'right', and their relevant application to the domain of 'health care'. But justice and rights considerations can only be clarified by examining various theories in terms of which certain claims about justice and rights are made and by means of which these claims can be defended. Without at least an implicit ethical theory or a theory of justice, certain questions can- not be coherently asked much less answered. Such questions include: Is there a right to health care? What does such a right mean and imply with respect to an array of other basic rights we try to defend? What is the content ofa right to health care? Are we claiming a right to free provision of medical care in crisis situations of disease and this for all members of society in an equal way or do we also include under the umbrella ofthis 'right' free access to the full range of technological provisions in medicine including such items as human in vitro fertilisation, heart transplants and cosmetic surgery (to name only a few of the procedures available which many would consider non-essential under a right to health care)? The parameters of rights claims are not self-evident and the essays in this volume show no pre- sumption that their analyses offer final resolutions of these complex questions. They do, however, highlight some of the essential questions that would need to be asked in order to come to some plausible view as to the resolution. Another question concerns the socio-economic and ethical issue of priorities. The priority question arises at two levels: the priority of health care relative to other goods and needs, and the order of priority of various forms of health care. While the issue of priorities is complex in terms of theoretical con- siderations it is no less so at the level of practical decision-making in any society faced with limited economic resources. Thus a third question, which asks about the justice or injustice of current health care systems, is a question which pre- supposes that we opt for a theory of justice that can argue for or against a universal right to health care and like- wise provide a basis for defending priority decisions. It is not surprising, then, that the present volume on justice and health care will be considered as weak or as strong as are the theories of justice pro- posed to defend the various claims both at the micro and macro level of health care allocations. DOLORES DOOLEY-CLARKE Department ofPhilosophy University College Cork, Ireland The Rights of Doctors and Nurses and Allied Health Professionals G J Annas, L H Glantz and B F Katz New York, Avon Books $3.95 Doctors and nurses might be forgiven for believing that they have obligations and other people have rights so it was with some surprise that I received this book for review. My surprise was heigh- tened when I saw that the cover described it as an 'American Civil Liberties Union Handbook'. The book was suggested following one on the rights of hospital patients by one ofthe authors and from time to time the impression is given that the authors are more at home speaking of a doctor's co p yrig h t. o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .8 .4 .2 0 7 o n 1 D e ce m b e r 1 9 8 2 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_vjms35oosfc5zowrodvchegfjy	----	Distributive Justice Distributing Duties abstract.pages Abstract DISTRIBUTIVE JUSTICE AND DISTRIBUTED OBLIGATIONS by William A. Edmundson Collectivities, that is, groups constituted by some procedure for making group decisions, can be agents. Collectivities can be moral agents if they can appreciate and act upon moral reasons. Collectivities thus can have obligations that are not simply the aggregate of pre- existing obligations of their members. Certain kinds of collective obligation distribute over their membership, i.e., become members’ obligations to do a fair share to fulfill the collectivity’s obligation. In incremental good cases, i.e., those in which a member’s fair share would go part way toward fulfilling the collectivity’s obligation, each member has an unconditional obligation to contribute that share. That is to say, in incremental good cases, each member’s distributed duty is not conditional upon other members’ contributions. States are collectivities, and states can be moral agents bearing obligations. But states are involuntary collectivities, which means that their obligations do not as a general matter distribute to their citizens. But certain states, democratic legal states, express the will of all citizens sufficiently well to count them among collectivities whose obligations distribute over their members. The qualifications to count as a democratic legal state are not as rigorous as those of a fully just state. In particular, a democratic legal state need only guarantee a social minimum, and need not satisfy more plausible but exacting principles of justice, such as Rawls’s first-principle guarantee of the fair value of political liberty, or the difference principle. A democratic legal state bears an obligation to be just and to do justice. This includes matters of distributive justice and addresses, in particular, unequal accumulations of wealth. Many existing states are democratic legal states, but none satisfies more rigorous but still plausible requirements of distributive justice (Rawlsian or other). In these states, citizens who hold assets, which are in excess of what is just, bear a distributed duty to donate that excess to benefit those with less. It is an incremental good case, and thus is not conditioned on the conformity of others who are also wealthier than justice allows, nor on the diligence of the state in meeting its obligations. This inconvenient conclusion is not avoidable by complaining of its demandingness, nor by appeal to the abstract possibility that some duties are conditional upon being determined and effectively enforced by the state. For the full text, go to http://ssrn.com/abstract=2545398 or http://dx.doi.org/ 10.2139/ssrn.2545398 and look for the “download this paper” button. http://ssrn.com/abstract=2545398 http://dx.doi.org/10.2139/ssrn.2545398 
work_vjntsgnpzjaebj5tf653a6pwkq	----	Author template for journal articles Zurich Open Repository and Archive University of Zurich Main Library Strickhofstrasse 39 CH-8057 Zurich www.zora.uzh.ch Year: 2015 Justice for climate loss and damage Wallimann-Helmer, Ivo Abstract: This paper suggests a way to elaborate the ethical implications of the Warsaw International Mechanism (WIM) as decided at COP 19 from the perspective of justice. It advocates three pro-posals. First, in order to fully understand the responsibilities and liabilities implied in the WIM, adaptation needs to be distinguished from loss and damage (LD) on the basis of the different goals which should be attributed to adaptation and to LD approaches. Second, the primary concern of the WIM should be compensatory justice. In case of climate LD, three aspects of compensatory justice should be kept separate: corrective liability, remedial responsibility, and with regard to the resources available, fair remedy. Third, it is crucial to distinguish between recov-erable damage and irrecoverable or at least not fully recoverable loss. This distinction is crucial because it informs the principles of fair remedy and because damage and loss may differ in their relevance for the stability and functioning of a human system. DOI: https://doi.org/10.1007/s10584-015-1483-2 Posted at the Zurich Open Repository and Archive, University of Zurich ZORA URL: https://doi.org/10.5167/uzh-112532 Journal Article Originally published at: Wallimann-Helmer, Ivo (2015). Justice for climate loss and damage. Climatic Change, 133(3):469-480. DOI: https://doi.org/10.1007/s10584-015-1483-2 1 Justice for climate loss and damage Ivo Wallimann-Helmer Research Priority Program for Ethics, University of Zurich, Zollikerstrasse 117, 8008 Zurich, Switzerland +41 44 634 85 03 +41 44 634 85 09 wallimann@philos.uzh.ch http://www.ethik.uzh.ch/ufsp/ma/ivowallimannhelmer_en.html Article Note / Acknowledgements: Earlier versions of this paper have been presented at the Annual Workshop of the UZH/ETH Zurich Network for Interdisciplinary Climate Change Research held in 2013 and a workshop entitled “New Debates in Climate Change Justice, Governance and Democracy” at the University of Warwick in 2014. I would like to thank the audiences of both these occasions as well as Hajo Eicken, Axel Gosseries, Gerrit Han- sen, Christian Huggel, Simon Milligan, Edward Page, Daithi Stone, three anonymous re- viewers, and especially Dominic Roser for very helpful and much needed comments, dis- cussion and inspiration. I also would like to acknowledge the generous financial support of Stiftung Mercator Switzerland and the University of Zurich's Research Priority Program for Ethics (URPP Ethics), without which the research for this paper would not have been possible. Abstract: This paper suggests a way to elaborate the ethical implications of the Warsaw International Mechanism (WIM) as decided at COP 19 from the perspective of justice. It advocates three pro- posals. First, in order to fully understand the responsibilities and liabilities implied in the WIM, adaptation needs to be distinguished from loss and damage (L&D) on the basis of the different goals which should be attributed to adaptation and to L&D approaches. Second, the primary concern of the WIM should be compensatory justice. In case of climate L&D, three aspects of compensatory justice should be kept separate: corrective liability, remedial responsibility, and with regard to the resources available, fair remedy. Third, it is crucial to distinguish between recoverable damage and irrecoverable or at least not fully recoverable loss. This distinction is crucial because it informs the principles of fair remedy and because damage and loss may differ in their relevance for the stability and functioning of a human system. Keywords: Warsaw International Mechanism, loss and damage, adaptation, climate impact, climate justice, compensatory justice Abbreviations: Loss and Damage: L&D; Warsaw International Mechanism: WIM 2 Justice for climate loss and damage Ivo Wallimann-Helmer 1 Introduction At their 19th conference in Warsaw (COP 19), the parties to the UNFCCC estab- lished the Warsaw International Mechanism (WIM) to “address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change (…)”. The WIM should promote “the implementation of ap- proaches to address loss and damage (…) in a comprehensive, integrated and co- herent manner (…)” (UNFCCC 2014). In light of Working Group II’s contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, the WIM is a much needed political step forward (IPCC 2014). However, it remains an open question whether developed countries should “provide developing country Parties with finance, technology and capacity-building” (UNFCCC 2014) due to considerations of liability or due to other kinds of responsibility. This paper makes an attempt to answer this question by elaborating the ethical im- plications of the WIM from the perspective of climate justice and normative justice research more generally. It advocates three proposals. First, in order to fully under- stand the responsibilities and liabilities implied in the WIM, a clear distinction be- tween adaptation and loss and damage (L&D) must be defined. The paper suggests distinguishing between adaptation and L&D on the basis of the different goals which should be attributed to adaptation and to L&D approaches. Second, defining the distinction between adaption and L&D on the basis of these goals reveals that the primary concern of the WIM should be compensatory justice. Closer examina- tion of the different aspects of compensatory justice shows that the questions of how to distribute remedial responsibilities and how, given the resources available, to fairly remedy L&D are more significant than the attribution of corrective liabili- ties. Third, the paper suggests that it is crucial to distinguish between recoverable damage and irrecoverable or at least not fully recoverable loss. This distinction is crucial because it informs the principles of how to most fairly remedy L&D and because damage and loss may differ in their relevance for the stability and func- tioning of a human system. 3 2 Adaptation vs. loss & damage The WIM has been established “acknowledging that loss and damage associated with the adverse effects of climate change includes, and in some cases involves more than, that which can be reduced by adaptation, (…)” (UNFCCC 2014). In accordance with the L&D literature, this acknowledgement states that at least some of the adverse effects of climate change cannot be addressed by adaptation measures (cf. Nishat et al. 2013; Warner et al. 2013). It is these kinds of climate impacts which make the WIM a mechanism that demands approaches distinct from adapta- tion measures. Consequently, the WIM requires a different assignment of responsi- bilities and liabilities for research, finance, implementation and assistance than for adaptation. Since these responsibilities and liabilities define the duties of justice implied in the WIM, elaborating its ethical implications requires a clear line to be drawn between adaptation and L&D. However, three of the most obvious ways to distinguish between adaptation and L&D, often mentioned in both policy discus- sions and the L&D literature, turn out to be more unclear than at first appears.1 First, both adaptation and L&D approaches mean that a human system reacts to cope with existing or anticipated climate impacts. This makes it difficult to distin- guish between adaptation and L&D by differentiating whether or not approaches are concerned with L&D. Generally speaking, adaptation means that a human or natural system adjusts to changing conditions. In the case of climate change, this can be due not only to more intense or more frequent disastrous weather events but also due to slow onset and gradual climate events which affect the stability and functioning of a system (Stone et al. 2013). Adaptation, therefore, is initiated by impacts and, in the case of human systems, anticipated impacts on the system. In case of human systems, these impacts are most often, if not exclusively, L&D 1 I agree with an anonymous reviewer that a fourth obvious way to distinguish between adaptation and L&D would be to differentiate them by the goals of both kinds of approaches. For instance, one could argue that whilst the goal of adaptation is to allow those facing climate impacts to cope with them, the goal of L&D approaches is to compensate for climate impacts that occur. However, alt- hough such a distinction seems straightforward and seems to eliminate the difficulties discussed in the following, I do not agree that no argument is needed to show why distinguishing adaptation from L&D by their different goals is the most plausible approach. Furthermore, even though it might be intuitively clear how to define these different goals, these definitions need justification as well. The following discussion aims to provide both. 4 threatening valued objectives. Thus, what mainly motivates the adaptation of hu- man systems is existing or anticipated L&D. Since L&D is also the driver for ad- aptation, it becomes difficult to see how to draw the line between adaptation measures and L&D approaches by relying on whether they are concerned with L&D or not. Existing or anticipated L&D not only motivates L&D measures but also drives adaptation efforts. In consequence, a clear distinction between responsibili- ties and liabilities exclusively relevant for the WIM and those relevant for adapta- tion is not possible either. Second, since the driver for both adaptation efforts and L&D measures is existing or anticipated L&D, the goal of both kinds of approaches is to diminish risks, even if different kinds of risks. Although the next section suggests that the primary con- cern of the WIM should be how to appropriately remedy L&D once it has occurred, L&D measures must be established long before L&D actually materializes. The fact that the intensity and frequency of disastrous weather events increases does not mean that L&D is permanent. There is only a higher probability that L&D will occur. Hence, investing in L&D measures means that a human system prepares to cope with the existing or anticipated risk of negative effects of L&D occurring. This makes it difficult to distinguish between adaptation and L&D by arguing that adap- tation measures fundamentally differ in their nature from L&D approaches. It is not only adaptation measures which are prospective in nature; L&D measures are not solely retrospective in nature, only concerned with how to remedy L&D once it has occurred.2 Hence, it becomes difficult to distinguish responsibilities and liabilities exclusively relevant for the WIM from duties to assist in adaptation by arguing that their focus is fundamentally different. The goal of both adaptation measures and L&D approaches is diminishing risks. While adaptation efforts aim to diminish the risk of the occurrence of L&D, L&D approaches aim at diminishing potential neg- ative effects of L&D on a human system once L&D has occurred. This reveals why not only adaptation measures but also L&D approaches cover risk management. But a third difficulty in distinguishing L&D from adaptation is that it is not evident which approaches to risk management fall within the category of ad- 2 I would like to thank Peter Burnell and an anonymous reviewer for suggesting this possible dis- tinction between adaptation and L&D. 5 aptation and which are exclusively relevant to addressing L&D. A common taxon- omy for distinguishing different approaches to risk management illuminates this point, the distinction between risk reduction, risk retention, and risk transfer (e.g. Wrathall et al. 2013). Risk reduction aims at reducing the risk of climate impacts. Approaches in this category include building dykes or installing early warning sys- tems. Risk retention consists in building resilience such as social protection pro- grams to enhance the ability of individuals and communities to cope with extreme weather events. Risk transfer involves transmitting risks from individuals or organ- izations to an insurer or to the community as a whole. It includes, for example, insurance for damage to crops due to hazardous weather events. All these ap- proaches can equally well be understood as L&D approaches or as adaptation measures. Their development means that a human system is adjusting to the existing or anticipated risks of adverse effects of climate change. Therefore, the responsibil- ities and liabilities relevant for L&D cannot be distinguished from those for adap- tation simply by relying on different kinds of approaches to risk management. A clear distinction between adaptation and L&D is needed first. Hence, it remains necessary to find a way to clearly separate the responsibilities and liabilities of adaptation from those of L&D if we are to analyze the implications of justice in the WIM. As already mentioned, the risks adaptation measures aim to diminish differ from those L&D approaches aim to minimize. This makes it possi- ble to draw a distinction between L&D and adaptation in terms of the different kinds of risk both approaches aim to diminish. One possible way to distinguish different kinds of risk is proposed by Dow et al. (2013). According to their conception, some risks are perceived as acceptable, others as tolerable, and still others as intolerable, depending on the adaptive capacity of a human system. The limits of adaptation are reached when risks become intolerable. Intolerable risks arise when a human sys- tem is not able to adapt to anticipated negative climate impacts. Hence, according to this conception, what distinguishes adaptation measures from L&D approaches is the kinds of risk they cover. However, this solution makes it necessary to bring the goals of adaptation measures and of L&D approaches more closely into focus. Following Dow et al. (2013), the limits of adaptation are reached when climate risks become intolerable. As a consequence of this conception, the goal of adaptation measures should be to keep the risk of climate impacts within the range of accepta- ble or tolerable risk. Adaptation thus refers to those measures which are perceived 6 as having the potential to keep climate risks within this range of acceptable or tol- erable risk. Put simply, since acceptable or tolerable risks are those which any in- dividual, organization or community would perceive as risks which can be ap- proved, the goal of adaptation must be to prevent L&D. For example, this would be the case when dykes are built which render risk of crop failure despite high river flow acceptable. Another example would be a risk retention program which subsi- dizes the socio-economically disadvantaged to take individual precautionary measures to reduce the risk of bush-fire damage to a tolerable level. Following on from this definition of the goal of adaptation measures, if the two kinds of approaches are to be distinguished, the goal of L&D approaches cannot be to keep risk of negative climate impacts within an acceptable or tolerable range. Otherwise, both kinds of approaches would coincide. Following Dow et al. (2013), the limits of adaptation are reached when a human system is no longer able to secure valued objectives. Hence, in contrast to adaptation, the goal of L&D approaches cannot be conceived as diminishing the risk of the occurrence of climate impacts. Since the limits of adaptation are reached when a human system is no longer able to keep the risk of climate impacts in an acceptable or tolerable range, L&D ap- proaches must be those which allow a human system to cope with the potential negative effects of L&D. Consequently, the goal of L&D approaches can be defined as diminishing the potential negative effects of L&D occurring on a human system. This can mean, for example, that early warning systems are built not in the belief that they can prevent deaths altogether but to minimize their number. Similarly, in the case of L&D, the purpose of risk transfer cannot be to prevent impacts but to provide appropriate support for those harmed. However, L&D can also occur when adaptation measures fail. L&D approaches should also cover these kinds of risk for negative climate impacts. Here again, risk transfer systems can become relevant, for instance following a breach in a dyke. Defining the distinction between adaptation and L&D approaches by their differing goals allows the three difficulties identified above to be addressed. The goal of ad- aptation approaches is to keep the risk of climate impacts within an acceptable or tolerable range. The goal of L&D approaches is to diminish the potential negative effects of L&D occurring on a human system. First, this distinction does not rely on the question whether or not approaches are concerned with L&D, because L&D is understood as the main driver for establishing measures for both kinds of goals. 7 Second, since the distinction focuses on the goal of the approaches, it is no longer necessary to attempt to distinguish between adaptation and L&D measures by whether they are prospective or retrospective in their nature. Third, it allows a cat- egorization of risk management approaches as either adaptation or L&D measures by their perceived capacity to keep risk in an acceptable or tolerable range. 3 Some implications of justice The last section suggested distinguishing adaptation from L&D by the different goals of the respective approaches. The goal of adaptation approaches should be to keep risk of climate impacts in an acceptable or tolerable range; the goal of L&D approaches should be to diminish the potential negative effects of L&D occurring on a human system, be it due to intolerable risks or as a consequence of impacts occurring despite adaptation measures. From the viewpoint of justice, this distinc- tion has several implications for responsibilities and liabilities. These implications include the question of how to remedy L&D and hence compensatory justice. Closer examination of the different aspects of compensatory justice reveals that there are good reasons why the WIM should be less concerned with questions of liability for L&D and more with how to most efficiently, effectively and fairly min- imize the negative effects of L&D on a human system. According to the distinction suggested between adaptation and L&D, the main con- cern of L&D approaches should be how to diminish the potential negative effects of L&D occurring on a human system. This means that appropriate risk manage- ment approaches for L&D should foster schemes to minimize the amount of L&D that actually occurs and, when L&D has occurred, to remedy negative impacts. This opens the highly contested field of compensatory justice. Compensatory justice co- vers three different aspects which are often not clearly separated (Miller 2007; Blum and Lockwood 2012): corrective liability, remedial responsibility, and fair remedy.3 First, corrective liability in a strict sense demands that those who caused or contrib- uted to L&D are liable to remedy it. Second, in many cases the party causing or the 3 These labels are introduced here to give the three different aspects of compensatory justice a name. However, as they stand, they are not common in normative research on compensatory jus- tice. 8 parties contributing to L&D are able to remedy it. If this is not the case, and espe- cially if L&D is severe, other parties can be seen as responsible for subsidizing remedy. In this case, it seems to be more appropriate to separate corrective liabilities from remedial responsibilities. Third, if resources for remedy are scarce or if ap- proaches available do not allow to fully recover injured parties, it is important to consider how to most fairly carry out remedy. In case of climate-related L&D, there are good reasons why these three aspects of compensatory justice should be as- sessed separately. To see why this is the case, a preliminary general observation is in order. Climate change is most often only one but not the single cause of L&D. Thus, detecting that a human system changes due to an existing or anticipated risk of climate impacts is one thing, but to attribute these changes and L&D undoubtedly to climate change is quite another (Stone et al. 2013; Visser et al. 2014). From the perspective of compensatory justice, this observation is highly relevant, since the vulnerability of a human system or of individuals is often increased not only due to changing cli- matic conditions. Vulnerability is also due to socio-economic disadvantage. For ex- ample, having fewer material resources makes it more difficult to invest in private safety measures. In the case of a disaster, a more fragile health care system provides less efficient and suitable assistance. From the perspective of compensatory justice, it is an important question whether these disadvantages are fair or not. At the national level, the answer to this question depends on whether a country distributes its resources in a just way and non-dis- criminatorily invests in appropriate health care infrastructure. On a global scale, these disadvantages raise the questions of whether the global distribution of re- sources is just and in what way the global economic arrangements contribute to unjustified vulnerability in some parts of the world rather than others. As with all considerations of climate justice, a fully-fledged analysis of the justice implications of the WIM cannot be an isolated task but must take into account other justice con- siderations as well (Caney 2012). However, such an analysis would be far beyond the scope of this paper.4 4 Since the parties at COP 19 established the WIM to address L&D especially “in developing countries that are particularly vulnerable to the adverse effects of climate change (…)” (UNFCCC 2014) considerations concerning global social-economic injustice could be understood as one of the background assumptions for this mechanism. 9 These considerations reveal that the question of corrective liability for L&D con- cerns not only climate change. Liability also covers the question of who unfairly contributed to the socio-economic conditions that increase vulnerability to climate L&D. On a global scale, this means that unfair disadvantage in resources and eco- nomic arrangements would have to be compensated by those countries liable and benefitting unfairly from them. At the national level, inappropriate infrastructure to deal with L&D can be seen to be the responsibility of the government concerned but not the global community. Disentangling these different socio-economic issues from vulnerability exclusively increased by climate change would be needed to ap- propriately assign corrective liabilities only relevant for climate-related L&D. The issue of disentangling becomes even more complex when considering a second general observation. Not all climate variability is anthropogenic. Although concerns of justice can also become relevant in the case of L&D caused by natural climate variability, in the case of anthropogenic climate change demands for compensatory justice vindicate the assertion of corrective liabilities to counteract negative climate impacts. For instance, with regard to anthropogenic climate change, it seems plau- sible to argue that those who created the mess should tidy it up; that is to say, they should appropriately compensate the victims (Shue 1999). In the case of natural climate variability, in contrast, such an argument is not possible. No-one can be blamed for having caused the L&D in question (Huggel et al. 2013). Hence, in the case of natural climate variability, it seems more plausible to argue that those who are best suited to do so should assist, irrespective of how much they have contrib- uted to climate change (c.f. Page 2008; Caney 2010). The challenge of disentangling natural from anthropogenic climate variability par- ticularly concerns the first aspect of compensatory justice, corrective liability. In the case of L&D, corrective liability covers the questions of who caused or contrib- uted to the risk of negative climate effects and hence is liable to contribute to sub- sidizing appropriate measures. This aspect concerns those principles of climate jus- tice which, in line with international climate politics, maintain that countries histor- ically or actually contributing more to anthropogenic climate change are liable for shouldering heavier burdens than those countries that did or do not (polluter-pays 10 principles).5 These principles justify the distribution of burdens on the basis of past or current man-made emissions. Determining the fair size of burdens in counteract- ing climate change depends on the fraction of climate variability and resultant L&D that can be attributed to anthropogenic emissions. Consequently, the ideal imple- mentation of these principles demands rigorous scientific evidence concerning the attribution of L&D to anthropogenic climate change.6 The case is quite different with regard to the second aspect of compensatory justice, namely the distribution of remedial responsibilities irrespective of the contribution to L&D. Remedial responsibilities apply to principles of climate justice which jus- tify a distribution of burdens according to economic, scientific or technological ca- pacity (ability-to-pay principles). These principles do not rely directly on past or current man-made emissions. Thus, what is relevant to assigning responsibilities for burdens is solely the fact that hazardous climate or weather events in conjunc- tion with L&D occur or that their risk can be predicted with sufficient certainty by climate modeling. But attribution of climate impacts to anthropogenic climate change is not essential. Indeed, this is not to say that polluter-pays principles are irrelevant and should be dismissed. Neither does it mean that principles relying on past or current emissions should not be balanced with ability-to-pay principles.7 But in light of the distinction between adaptation and L&D proposed here, these obser- vations provide at least two reasons why the WIM should prioritize the question of how best to subsidize and implement L&D measures and why the question of how most appropriately to assign corrective liabilities exclusively relevant for L&D oc- curring due to anthropogenic climate change should be of secondary concern. First, as argued in the previous section, L&D approaches are prospective in nature. A human system must be prepared to cope adequately with L&D occurring. This means that L&D measures must be established before L&D actually occurs. As a consequence, it becomes difficult, if not impossible, to establish and maintain mechanisms which exclusively manage anthropogenic climate change but not L&D due to natural climate variability while disregarding increased vulnerability because 5 The literature on polluter-pays principles and their relation to historical justice is a long-standing concern in climate ethics. Due to space limits, however, it is not possible to discuss these issues in more detail here. For a very helpful collection of essential essays, consider Gardiner et al. (2010). 6 For a more detailed explanation of the three different scientific approaches mentioned here and in the following paragraph see the tandem paper to this article by Huggel et al. (this issue). 7 For further discussion of these issues see for example Vanderheiden (2009). 11 of unfair global or national socio-economic inequality. Once established, L&D ap- proaches diminish the potential negative effects of L&D on a human system irre- spective of whether they are induced by anthropogenic or natural climate variability and whether increased vulnerability is due to socio-economic unfairness or climate change. Second, since L&D is often a severe threat to the stability and functioning of a human system, it seems to be inappropriate to subsidize L&D measures only to the point at which it can be proven that the risk of L&D or L&D occurring are due to anthropogenic climate change. Therefore, restricting responsibilities to sub- sidize L&D approaches to corrective liability for climate related L&D seems to be inappropriate.8 In consequence, according to the distinction between adaptation and L&D proposed here, there are good reasons why the primary concern of the WIM should be the question of who is best able to subsidize L&D measures. This concern is especially important with regard to (but not restricted to) ability-to-pay principles. According to these principles, countries better capable of helping diminish the potential nega- tive effects of L&D on a human system have a duty to contribute more to their solutions. This can be due to superior economic power, improved scientific or tech- nological capacity. However, only focusing on this aspect of compensatory justice for L&D and dismissing the third aspect of compensatory justice; the aspect of fair remedy would be devastating. It would be devastating because the goal of L&D approaches is not to prevent the risk of L&D altogether but to diminish the potential negative effects of L&D occurring on a human system. Therefore, given the re- sources available, it becomes important to be clear about the fairest way to remedy L&D. The question of how to fairly remedy L&D once it has occurred involves two inter- twined but separate issues. The first issue involves considerations of efficiency and effectiveness: how the negative effects of climate change on a human system can be optimally minimized. The second issue concerns how to fairly remedy climate impacts: L&D needs either to be appropriately settled or, ideally, the L&D should be recovered completely. Whilst the first issue is more concerned with technical, scientific and managerial challenges, from the perspective of compensatory justice the second issue is most essential. What, in the case of climate L&D, fair remedy 8 For a more theoretical argument to similar conclusions see Meyer and Roser (2010). 12 means and under what conditions full recovery of L&D can legitimately be deemed possible is the central concern of the next section. It analyzes the implications of fair remedy and how concerns of fairness should be balanced with considerations of efficiency and effectiveness in more detail. 4 Two kinds of climate impacts As argued above, dismissing the third aspect of compensatory justice; fair remedy, would be devastating. With regard to compensatory justice it is an important ques- tion how to most fairly remedy climate impacts. From the viewpoint of compensa- tory justice, this question is important for three reasons. First, a fully fair solution to remedy L&D cannot be found before it is clear what, given the resources availa- ble, would be the most fair way to remedy climate impacts. From the perspective of compensatory justice, this means that, prior to the question of how to distribute remedial responsibilities, it is necessary to clarify what remedial measures actually deliver fairness when L&D has occurred. Second, considerations concerning fair remedy are paramount, because without taking them into account any approach to L&D, however efficient and effective it may be, may do so in an unfair way. Third, without taking concerns of fair remedy into account, there is a risk that remedial principles demand too much or, more probably, not enough from those correctively liable or remedially responsible to subsidize the measures to be taken. One of the reasons why there is a danger that L&D approaches do not fully meet the demands of fair remedy is that climate impacts are most often monetized. Re- ports on hazardous weather events often summarize climate impacts in terms of the monetary costs of redressing L&D. In many instances, arguments about which steps should be taken to combat climate impacts use cost-benefit calculations. Certainly, all these calculations are relevant to evaluating economic detriment and deciding the most efficient or effective responses to L&D in financial terms. An economic analysis of the adverse effects of climate change, however, tends to ignore the fact that not all L&D is quantifiable in monetary terms. It is these kinds of impacts which bear the danger that L&D approaches do not fully meet the demands of fair remedy. To understand why this is the case, it proves helpful to consider the general meaning of just compensation from a different angle than the three aspects of compensatory 13 justice introduced so far (Goodin 1989). In the case of any kind of injury to a per- son’s livelihood or assets, compensatory justice demands that a person is made as well off as he or she was before. If someone steals someone else’s car, just com- pensation demands its return to its rightful owner. Similarly, damaging a borrowed car implies that one has to pay for the repairs needed or to buy a new car. Ideally speaking, just compensation means restoring the status quo ante, the status before a disadvantage has been inflicted. The situation of the injured party should be re- covered; the L&D suffered should be neutralized. In the case of monetizable harm, this seems to be uncomplicated. Impacts on eco- nomic assets can be recovered simply by paying enough money to restore the status quo ante. This kind of compensation is what Goodin (1989) calls means-replacing compensation. Paying an appropriate amount of money for economic deprivation replaces the means lost and allows injured parties to pursue the same valued objec- tives as before. In the case of non-monetizable harm, however, such replacement of means is not or at least not fully possible. A crashed car which one inherited from one’s parents cannot be replaced by simply paying enough money or buying another car of the same model. The memories attached to such a car are not, or at least not fully, monetizable. But paying money for a new car to restitute mobility and at the same time providing the injured individual with some kind of substitute for the memories attached to the crashed car might be sufficient. The aim of this kind of remedial action is not only to replace the means vanished but to assist injured indi- viduals to revise their valued objectives. It assists an injured individual to feel sub- jectively as well off as before.9 Goodin (1989) calls this kind of compensation ends- displacing compensation, because it rectifies by assisting the revision of objec- tives.10 Ends-displacing compensation becomes most pertinent with regard to non-mone- tizable or not fully monetizable climate impacts. Since these kinds of impacts can- not be fully recovered in monetary terms, appropriate L&D approaches must assist 9 This claim faces two challenges which cannot be discussed here. First, assisting someone to re- vise his valued objectives readily tends to be overly paternalistic since helping changing objectives involves directives by those who assist. Second, whilst the costs of monetizable L&D are clearly restricted by the amount of money lost in case of revising valued objectives the limit for resources to be spent for assistance is not as clear-cut as in the first case. I would like to thank an anonymous reviewer for mentioning both these concerns. 10 I am heavily indebted to Edward Page for mentioning Goodin’s distinction between these two kinds of just compensation. 14 those facing these impacts to revise their valued objectives. For instance, in some regions, climate change diminishes fish stock, which has an impact on traditional fishery (UNFCCC 2013). In Alaska, coastal erosion and flooding due to longer sea- ice summers has forced many coastal and riparian villages to relocate (Bronen 2013). Most drastically, sea-level rise potentially makes it necessary that the whole people of a low island state must leave its home (IPCC 2014). In all three cases, not only are economic costs involved but also further non-monetizable negative im- pacts. According to a range of normative theorists, these three cases vindicate demands of justice. A community that needs to find another way of fishing not only loses in economic resources; it also loses part of its cultural identity (Heyward 2014). Re- locating a village is not only economically costly but also means that attachment to place is lost, which can be of major importance for a village’s or a specific individ- ual’s self-understanding (Bell 2004; Shalit 2011). Without appropriate international regulations for climate refugees, the peoples of low island states not only lose their homelands but also their right to political self-determination (Byravan and Rajan 2010; Zellentin 2010). Thus, L&D measures cannot remedy in a fair way in all cases if they only redress economic deprivation. In the case of non-monetizable or not fully monetizable climate impacts, L&D approaches must also provide transition to different ways of livelihood, economic subsistence, cultural heritage, or political organization. Hence, it seems that the WIM covers two different kinds of negative climate im- pacts. On the one hand, there are the climate impacts which allow means to be re- covered in such a way that those harmed are able to pursue the same ends as before. This category of climate impacts includes all those adverse effects of climate change which can be restored completely without any or only marginal impact on livelihood, economic subsistence, cultural heritage, or political organization. On the other hand, there are those climate impacts that require changes in livelihood, kind of economic subsistence, cultural heritage, or even political organization to be ap- propriately remedied. This category of impacts thus makes social transition an es- sential part of L&D approaches, since it demands displacement of valued objec- tives. Therefore, the distinction often used in L&D literature and some UNFCCC documents between recoverable damages and irrecoverable losses becomes perti- nent from the perspective of compensatory justice (e.g. UNFCCC 2012; Nishat et 15 al. 2013). Recoverable damages are those impacts that can be compensated by ap- propriate payments or other kinds of redistribution of assets. Irrecoverable losses, in contrast, make a displacement of objectives necessary. These considerations suggest how to frame justice principles relevant for fair rem- edy and how they must be balanced with issues of efficiency and effectiveness. In cases of recoverable damage, the relevant principle of fair remedy is straightfor- ward. Resources must be distributed to recover climate damages as fully as feasible for as many inflicted parties as possible. However, since resources to recover dam- ages might be scarce and since due to socio-economic inequalities capacities for self-recovery can be distributed unequally, such a principle should have a constraint built in to prioritize those more disadvantaged (Blum and Lockwood 2012). In cases of irrecoverable or not fully recoverable loss, in contrast, the appropriate principles of fair remedy will vary according to the loss at issue. Other principles of fair rem- edy are more appropriate, depending on whether livelihood, economic subsistence, cultural heritage, or political organization is at stake. In neither kind of case will demands concerning efficiency and effectiveness necessarily coincide with de- mands of fairness. For instance, using approaches to L&D neglecting inequalities in socio-economic status in the name of efficiency and effectiveness undermines their legitimacy. Similarly, investing the resources available efficiently and effec- tively but according to the wrong principle of fair remedy must be deemed unfair as well. Moreover, although it might seem that climate loss should be dealt with as a primary concern, to argue for a strict priority of climate loss over climate damage is prob- lematic. Losses seem to be more of a threat to a human system since they demand social transitions, changing how a human system remains stable and functioning, with all the consequent long-lasting social and economic costs involved. However, in light of the overall economic costs of climate impacts on a human system, some losses might be trivial.11 Losing a car inherited from one’s parents due to an extreme weather event might be unimportant in light of the millions of Swiss francs of re- coverable assets damaged. Depending on the scale of means impaired due to an extreme weather event, this damage can become more severe than all the small non- monetizable losses single individuals face. These losses might have no or scarcely 11 I would like to thank Olaf Corry for mentioning this objection. 16 any bearing on the stability and functioning of a human system. Hence, climate loss has more weight than climate damage only when it involves a significant threat to the stability and functioning of a human system. In all other cases, climate damage and approaches to minimize its impacts are of primary concern. As a consequence, it seems that the WIM should provide mechanisms for a case- by-case assessment of the L&D faced by different communities due to different weather or slow onset and gradual climate events. How these mechanisms should be characterized must remain an open question for now. They could be conceived as some kind of application program for funding L&D approaches to establish fair schemes of remedy. They could also be part of an adjusted system of international law allowing affected communities to claim fair remedy for L&D.12 Whatever such mechanisms to implement the WIM should look like, from the viewpoint of com- pensatory justice it is crucial to facilitate the choice of appropriate principles of fair remedy and to balance the weight of loss with the weight of damage and their re- spective approaches suitably. 5 Conclusion The aim of this paper was to elaborate the implications of justice in the WIM as decided upon by the parties in Warsaw at COP 19. In so doing, it proposed three crucial distinctions. First, it proposed that the goal of adaptation approaches should be conceived as keeping the risk of climate impacts within an acceptable or tolera- ble range. The goal of L&D approaches, in contrast, seems to be better described as diminishing the potential negative effects of L&D occurring on a human system. Second, the paper suggested that considerations concerning just compensation should be the primary focus of the WIM. With regard to these considerations, the paper proposed that there are good reasons why finding measures to most effi- ciently, effectively and fairly remedy L&D is more significant than appropriately assigning corrective liabilities. Third, the paper recommended understanding cli- mate damage as that impact which can be recovered in such a way that those af- fected can still pursue the same valued objectives as before L&D occurred. Climate 12 For further discussion of how international law could play a role here see Huggel et al. (this is- sue). 17 loss, on the other hand, is that impact which makes a transition of valued objectives necessary; this can mean a shift in the way livelihood and economic subsistence is secured, transition of cultural heritage, or even change in political organization. The paper only hinted at possible justifications for and conclusions from the dis- tinctions it proposed but did not elaborate them fully. Further normative justice re- search, in collaboration with other branches of climate-related research, can enable the international community to deliver concrete policy proposals. In the meantime, however, the paper hopefully helped delineate the contours of how the WIM and accompanying mechanisms should develop until the end of the review period in 2016, leading to a decision at COP 22. 1 References Bell DR (2004) Environmental Refugees: What Rights? Which Duties? Res Pub- lica 10:135–152 Blum G, Lockwood NJ (2012) Earthquakes and Wars: The Logic of International Reparations. Public Law & Legal Theory Working Paper Series(12-30) Bronen R (2013) Climate-Induced Displacement of Alaska Native Communities Byravan S, Rajan SC (2010) The Ethical Implications of Sea-Level Rise Due to Climate Change. Ethics & International Affairs 24(3):239–260 Caney S (2010) Climate Change and the Duties of the Advantaged. Critical Re- view of International Social and Political Philosophy 13(1):203–228 Caney S (2012) Just Emissions. Philosophy & Public Affairs 40(4):255–300 Dow K, Berkhout F, Preston BL, Klein RJ, Midgley G, Shaw MR (2013) Limits to Adaption. Nature Climate Change 3(April):305–307 Gardiner SM, Caney S, Jamieson D, Shue H (eds) (2010) Climate Ethics: Essen- tial Readings. Oxford University Press, Oxford, New York Goodin RE (1989) Theories of Compensation. Oxford Journal of Legal Studies 9(1):56–75 Heyward C (2014) Climate Change as Cultural Injustice. In: Brooks T (ed) New Waves in Global Justice, pp 149–169 Huggel C, Stone D, Auffhammer M, Hansen G (2013) Loss and Damage Attribu- tion. Nature Climate Change 5(August):694–696 Huggel C, Stone D, Eicken H, Hansen G (2015) Potential and Limitations of the Attribution of Climate Change Impacts for Informing Loss and Damage Dis- cussions and Policies. Climatic Change:this issue IPCC (2014) Climate Change 2014: Impacts, Adaptation, and Vulnerability: WG II AR5: Technical Summary Meyer LH, Roser D (2010) Climate Justice and Historical Emissions. Critical Re- view of International Social and Political Philosophy 13(1):229–253 Miller D (2007) National Responsibility and Global Justice. Oxford University Press, Oxford Nishat A, Mukherjee N, Roberts E, Hasemann A (2013) A Range of Approaches to Address Loss and Damage from Climate Change Impacts in Bangladesh. http://www.loss-and-damage.net/4825. Accessed 03 September 2014 2 Page E (2008) Distributing the Burdens of Climate Change. Environmental Poli- tics 17(4):556–575 Shalit A de (2011) Climate Change Refugees, Compensation and Rectification. The Monist 94(3) Shue H (1999) Global Environment and International Inequality. International Af- fairs 75(3):531–545 Stone D, Auffhammer M, Carey M, Hansen G, Huggel C, Cramer W, Lobell D, Molau U, Solow A, Tibig L, Yohe G (2013) The challenge to detect and attrib- ute effects of climate change on human and natural systems. Climatic Change 121(2):381–395 UNFCCC (2012) A literature review on the topics in the context of thematic area 2 of the work programme on loss and damage: a range of approaches to ad- dress loss and damage associated with the adverse effects of climate change, Doha UNFCCC (2013) Non-Economic Losses: Technical Paper UNFCCC (2014) Report of the Conference of the Parties on its nineteenth ses- sion, held in Warsaw from 11 to 23 November 2013: Part two: Action taken by the Conference of the Parties at its nineteenth session Vanderheiden S (2009) Atmospheric justice: A political theory of climate change, 1st edn. Oxford Univ. Press, Oxford [u.a.] Visser H, Petersen AC, Ligtvoet W (2014) On the relation between weather-re- lated disaster impacts, vulnerability and climate change. Climatic Change 125(3-4):461–477 Warner K, Geest, Kees van der (2013) Loss and damage from climate change: Lo- cal-level evidence from nine vulnerable countries. International Journal of Global Warming 5(4):367–386 Wrathall D, Oliver-Smith A, Sakdapolrak P, Gencer E, Fekete A, Lepana Reyes M (2013) Conceptual and Operational Problems for Loss and Damage: Work- ing Paper. http://www.populationenvironmentresearch.org/docu- ments/Loss_and_Damage_2013.pdf. Accessed 03 September 2014 Zellentin A (2010) Climate Migration: Cultural Aspects of Climate Change. Ana- lyse & Kritik (1):63–86 
work_vk5b2gacirb5rjgkpnwfx3w7ai	----	Restorative justice innovations in Canada Behavioral Sciences and the Law Behav. Sci. Law 20: 363–380 (2002) Published online in Wiley Interscience (www.interscience.wiley.com). DOI: 10.1002/bsl.498 Restorative Justice Innovations in Canada Robin J. Wilson, Ph.D., C.Psych.*, Bria Huculak, LL.M., Ph.D. Candidate and Andrew McWhinnie, M.A. As many jurisdictions move towards more retributive measures as a means to address public discontent with crime, a parallel movement has developed in regard to restorative justice. This article presents three restorative initiatives currently in use in Canada. Each initiative addresses offender behavior and community engagement at a different point in the justice continuum. The use of Sentencing Circles is an example of how restorative justice principles can be instituted at the front end, prior to an offender becoming lodged in the system. The Restorative Justice Options to Parole Suspension project demonstrates how community engagement can assist in preventing offenders from being returned to the system once they have achieved conditional release. The Circles of Support and Accountability project has enlisted the support of professionally supported volunteers in the community reintegration of high-risk sexual offenders. These initia- tives are presented within a framework of effective cor- rectional interventions and increased empowerment for a variety of stakeholders. Copyright # 2002 John Wiley & Sons, Ltd. It is clear that the Canadian justice system is unsatisfactory for both victims and offenders. Many jurisdictions in Canada and the United States, among others, have converted to the ‘get tough on crime’ zeitgeist. This call to get tough is a demand for more official punishment, to inflict more pain, to separate and sever social bonds and, in some countries, to execute more citizens. These official responses to crime create an illusion of safety and allow some to feel good about our official treatment of offenders. While the retributive responses above have garnered favorable attention Copyright # 2002 John Wiley & Sons, Ltd. *Correspondence to: Dr Robin J. Wilson, Sexual Behaviour Program, Central Ontario District (Parole), Correctional Service of Canada, 330 Keele Street, Main Floor, Toronto, Ontario, M6P 2K7 Canada. E-mail: wilsonrj@csc-scc.gc.ca Dr Wilson is Director of the Sexual Behaviour Program, Central Ontario District, the Correctional Service of Canada. Judge Huculak is a judge on the Provincial Court of Saskatchewan in Saskatoon. Mr McWhinnie is Project Manager of The Restorative Justice Options to Parole Suspension Project in Victoria, B.C., operating from the Victoria Parole Office, the Correctional Service of Canada. The views presented in this article are those of the authors, and do not necessarily represent those of the Governments of Canada or Saskatchewan, or their constituent departments. We wish to thank Hugh Kirkegaard for his assistance with elements of this article. in the media and the community at large, they are not inclusive of the communities they purport to protect. In response, many have become disillusioned with the criminal justice system, and have contributed to a parallel movement in regard to restorative justice. Canada has a longstanding tradition of restorative justice innovation, with many of those initiatives originating in the faith community. In particular, the Mennonite community has a long tradition of using restorative techniques in addressing victim and offender needs. For instance, Yantzi (1998) documents the Victim Offender Reconciliation Program (VORP), a groundbreaking Mennonite initiative that began in Canada in the 1970s and quickly gained favor in the United States. The work of Andrews and Bonta (1998) shows very clearly that sanction alone will not curb crime. Rather, it is the provision of appropriate human service that underscores effective correctional intervention. This article presents three current Canadian restorative justice initiatives. (i) The Sentencing Circles program in use in Saskatchewan demonstrates how restorative principles may be implemented at the sentencing phase of the criminal justice process.(ii) The Restorative Justice Options to Parole Suspension program currently under way in Victoria, British Columbia, shows how such principles may be applied while an offender is on conditional release during the course of a sentence. (iii) The Circles of Support and Accountability (COSA) pilot project in the Greater Toronto Area has been initiated to assist high risk sexual offenders in community reintegra- tion following the completion of their sentences, when no formal assistance (i.e. correctional supervision) is typically available. SENTENCING CIRCLES The concept of Sentencing Circles (SCs) entered the Canadian lexicon in 1992, with the Yukon Territory and the Province of Saskatchewan becoming the focus of the circle process (Church Council on Justice and Corrections, 1996). This section will deal primarily with the SC process in Saskatchewan, where it has been used in both rural–aboriginal and urban settings, with a variety of offenders and offense types. Although it shares common ground with restorative justice theory, the SC process did not develop from an overarching theoretical framework. The practice came first. The Saskatchewan experience initially involved three Northern judges and several communities. The general process combined respect for due process, mediation and interest-based negotiation, and consensus-based decision-making with aboriginal healing and peacekeeping concepts. While the model draws much from certain aboriginal traditions, it is important to note that SCs are not inherently ‘aboriginal’. Aside from implementation criteria developed by the judges involved in the process, there was no initial attempt to delineate exactly how this process would occur in each community. With input from lawyers in the involved districts, the judges determined the procedure and criteria. This has caused difficulties, parti- cularly as the legal profession continues to ‘adapt the conflict to the process, rather than the process to the conflict’, the latter being more closely the agenda of SCs and the community (Hon. Barry Stuart, Yukon Territorial Court, personal 364 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) communication). The implementation of SCs has suffered from this apparent lack of formal structure, resulting in a degree of confusion as to how SCs should be conducted. Subsequently, this has led some to believe that they do not work. However, it appears that it is not SCs that are not working, rather it is the ad hoc or, often, haphazard way in which they are formed that leads to diminished results. For instance, each potential SC should be preceded by a rigorous evaluation of the circumstances in order to ascertain the appropriateness of using such a process. As Sentencing Circles proliferate in Canada, there has been some opposition. First, not all aboriginal bands have embraced SCs, most often because they do not see the process as being consistent with their particular traditional beliefs regarding justice (e.g., the Kaska and Tlingit peoples of the Yukon and Alaska). Second, the legal community has also experienced growing pains, particularly in regard to the Court of Appeal. To date, the appellate court has appreciated the concept but, perhaps, not the dynamics of the SC process (Hon. Barry Stuart, personal com- munication; R. v. Morin, Saskatchewan Court of Appeal, 1995). In a recent decision, the Alberta Court of Appeal (R. v. B. L., 2002) addressed issues surrounding the use of SCs. Specifically, the decision spoke to means of establishing fact when employing SCs, as well as dealing with the issue of appro- priateness of sentence. While the appeal was dismissed in R. v. B. L., the court found that the facts of the case were never established according to the normal process of law. Although the offender pleaded guilty to the charge of aggravated assault, the Crown was not afforded the opportunity to present the facts, nor was it afforded the opportunity to prove any aggravating circumstances. In summary, the facts should be established before a circle hearing, either by admission or by proof in the ordinary course. Those facts should be presented to the circle. The circle is not the appropriate forum in which to prove disputed facts. The sentencing circle deals with the possibility of a restorative sentence based, in part, on the facts constituting the offence. No doubt additional facts will frequently arise during the course of the hearing, but, if challenged, disputed facts must be proven as outlined above. . . . The conflicting comments the judge made in this case make it difficult to ascertain which facts he accepted. But for the agreed facts provided at this appeal, we would return this matter for rehearing (R. v. B. L., para. 44, emphasis added). The Court also addressed the issue of composition of this circle, specifically, in regard to absence of support for the victim and the failure to include meaningful representation from the community. Further, the victim’s wife was not present, even though she witnessed the attack on her husband and, due to the severity of her husband’s injuries (resulting in permanent disability), the Court noted that ‘she was yet another victim’ of the assault. Process Participation in the SC process is entirely voluntary for all concerned. In general, SCs have tended to be used in response to serious offences, particularly those where there is an identifiable principal victim (e.g., robbery, criminal negligence causing Innovations in Canada 365 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) death, and assault). Many of the offenders involved in such crimes would expect to receive a lengthy period of incarceration. Although avoidance of incarceration is not always the result, generally, a non-custodial sentence is recommended. The focus in taking the SC route is on accountability, rehabilitation, and community integration. Offender motivation to change is often evident in facing the victim and the people most important to him/her. Many offenders experience the SC process as significantly more personally challenging than facing a judge in the usual court sentencing procedure, in which there is minimal discomfort, a lawyer speaking for them, and less personal investment of time. The families of both the victim and offender, as well as the community, are often an important part of the rehabilitation aspect and a necessary part of the community integration. In the SC process, an effort is made to distinguish the criminal act from the offender. Although it is made clear that the behavior is not acceptable, the offender is given the opportunity to correct the criminal behavior. Because the SC process puts a face on the stakeholders, an offender’s failure to comply with the resultant terms and conditions of the sentence results in letting down family, friends, the community, and oneself. Also, the offender may face incarceration if the terms of the SC are breached. Consequently, there is considerable social support for the offender to comply. Circles often take several hours in gathering information, responding to it, and in developing a resultant sentencing plan. At the end of much discussion, a successful SC will result in a resolution satisfactory to all stakeholders, and recommendations are made to the judge. Judges rarely refuse to follow the recommendations, which may include elements of reparation and restitution to the victim, as well as a plan for rehabilitation and integration of the offender. Treatment is also an important component of the sentencing plan, as many offenders have significant clinical problems, including addictions. Social control through social support can often be more effective than incarcera- tion which, for many offenders, has generally failed to deter or rehabilitate them. By strengthening connections to family and community, obligations are created that seem to operate both as deterrent and as rehabilitation. The resources of the com- munity are frequently called upon, including individuals such as aboriginal elders. The victim is also supported through the SC process. They are able to express the damage done to them, to understand how and why this victimization occurred, and to hear the offender, and often his family, express genuine sorrow and regret for the criminal behavior and remorse for the harm caused. The power of publicly hearing the words ‘I’m sorry’ is sometimes underestimated. The SC process provides an opportunity for the offender to reinvent aspects of himself, to detach himself from the criminal appellation through various technologies (e.g., treatment), and to utilize the power of the community and its resources to assist in his rehabilitation. Although social control through help and support is an important aspect of the SC process, healing of the offender, victim, and community are equally important. Indeed, the opportunity to provide a measure of healing in regard to a specific criminal event is a sufficient justification for the circle process regardless of whether the offender reoffends. This critical importance of ‘healing’ has been officially recognized by the courts in Saskatchewan. A variety of SC initiatives now exist in Saskatchewan: (i) pre-charge and post-charge diversion of youth directly to a community/healing circle; (ii) 366 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) pre-sentence circles, where the result of the circle deliberations is presented to the judge; and (iii) an SC process which involves a judge, counsel for the offender, the prosecutor, and the community. Since 1992, hundreds of SCs have been held in Canada. The majority of SCs in Saskatchewan have been implemented in the aboriginal community, which is largely rural in nature; however, there are numerous examples of SCs undertaken in urban settings. In general, several core themes are reflected in the SC process: community, dialogue, reparation, rehabilitation, participation, respect, responsibility, empathy, consensus, healing, empowerment, transformation, and hope. Although the accused generally asks for the SC, the judge may also suggest one. Indeed, the first SC in Saskatchewan was initiated by a judge. Further, in R. v. B. L. (2002) the Alberta Court of Appeal suggested that laws surrounding the use of SCs should develop incrementally, stating, ‘in our view, the trial courts are the appropriate forum for this process to mature’. Sentencing Circles in Rural Communities In small, Northern Aboriginal communities where most inhabitants know each other, Sentencing Circles are usually held in a band hall or a church. The setting is informal, with participants (including the judge) in casual attire. The space is free from the ritualistic legal language and furniture of the regular courtroom. Partici- pants usually include the offender, victim, their families, friends, and support systems, others from the community (e.g., alcohol/drug treatment specialists), as well as the judge, prosecutor, and defense. Basically, the process is sufficiently open to include anyone with an interest in participation. The judge acts as a facilitator, in a non-directive way. In some communities, someone other than the judge may facilitate or a co-facilitation model is employed. In aboriginal communities, elders are an integral part of the process. Once all concerned parties have gathered, participants arrange themselves in a circle of chairs. The inner circle includes those who wish to participate and speak, while an outer circle includes those who are interested as observers and who are not as directly connected or do not express an interest in speaking. In aboriginal communities, the process opens with a prayer, often in the local native language as well as in English. This sets the tone for the important nature of what is to occur. Introductions are made and the connections between the parties are explained. The circumstances of the offense are read out by the Crown Attorney, and the offender acknowledges guilt and takes direct responsibility for his/her actions. The offender, his lawyer, and the victim are then given the opportunity to speak. Frequently, the offender opens with an apology, which the victim may accept, provided that genuine remorse is expressed. Each person in the room is given many opportunities to speak while the other participants listen respectfully. The process is transparent, open, flexible, and unscripted in the sense of limiting the nature of the dialogue or limiting who can participate. There is no pressure to speak, and interruptions are not tolerated. There is attention to context, relationships, and dialogue. Sentencing Circles often include a great deal of emotion, pain, and tears; however, participants also express positive emotions. The SC closes with a prayer, shaking of hands and, often, hugs. Innovations in Canada 367 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) Sentencing Circles in Urban Settings Sentencing Circles in urban centers resemble those undertaken in smaller commu- nities, except that the concept of ‘community’ becomes a relational one not based on a particular geographic area. Instead, the participants are involved by the nature of their connection to the offender, victim, or the circumstances of the offense. For example, in a dangerous driving case where, fortunately, no one was injured, participants included Mothers Against Drunk Driving, an emergency room doctor who routinely treated accident victims, a former accident victim who was perma- nently paralyzed, an addictions counselor, and a representative from an insurance company. In urban SCs, the process is one of constructing ‘community’ whereby the process creates a ‘community of purpose’ for a particular individual and a particular circumstance. Although this larger community usually disperses after the circle is complete, important connections are made, including connections to family mem- bers and other members of the community at large. Offers to help are often made by community members. For many individuals, the contact continues or becomes part of a probation order. Urban SCs tend to be large, with the inner circle of participants comprised of as many as 20–30 people. The urban SC process can take much longer than its rural partner, mostly because the first couple of hours involve dialogue intended to construct ‘commu- nity’ where it may not have previously existed. This construction process is necessary in order to build a foundation on which participants can move to the next phase of determining an appropriate response to the crime in question. Indeed, in a ‘constructed’ circle in Saskatoon, one particular young offender made many intimate and distressing disclosures. This youthful male offender disclosed that he had been sexually victimized by a relative, and that he had had thoughts of suicide while imprisoned for his last offense. These disclosures came out in the context of an environment where the participants had no pre-existing relationships. One can speculate that a foundation of trust must have been established in order to permit these disclosures. Certainly, the sharing of such information took immense courage on the part of the offender, and this courage was not lost on the other participants. Conclusions There are many examples of communities, aboriginal and otherwise, adopting the SC approach to justice. In each instance the community was engaged in a direct way, such that dialogue, participatory democratic decision-making, power-sharing, and sharing of responsibility occurred. The uniqueness of the SC process is an ever- present reminder of a different way of responding to crime, particularly, in a public atmosphere bent on ‘getting tough on crime’. The SC process directly challenges the foundational underpinnings of the criminal law construct of the autonomous, rational ‘chooser’ in favor of the historically situated subject as a socially con- structed, relationally connected person. Sentencing Circles contest the reason– emotion dualism, as well as the concept of impartiality, by standing in opposition to a rule-based, ‘objective’, hierarchical system. The Canadian Supreme Court recognized recently recognized this process (R. v. Gladue, 1999) in expressing 368 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) concern for the appalling number of incarcerated aboriginal offenders. The court pointed to sentencing and healing circles as a way of diverting aboriginal offenders from jail. This decision was particularly important in recognizing that poverty, substance abuse, lack of employment, and poor educational opportunities are critical factors in the crisis facing many aboriginal people. Although the court was interpreting amendments to the Criminal Code of Canada in 1996, which directed judges to consider the circumstances of the aboriginal offender in sentencing, the court’s comments can be applied generally to all offenders. That is, sentencing should take into account the structural antecedents of crime. This is consistent with the circle approach, which has been open to both aboriginal and non-aboriginal offenders. In some respects, it may seem impossible that a relatively simple process of bringing people together, sitting in a circle talking, listening, and feeling, could have such a profound impact. Nonetheless, the powerful collective energy produced through open expression of emotion, storytelling, a willingness to connect with others despite differences, and the ability to empathize, coupled with a willingness to rise to a higher level in asking for and receiving forgiveness, all have the potential to occur in the SC process. A Sentencing Circle is a space where the impossibility of separating cognition and emotion exists, where reason meets feeling. What makes this process so powerful is that we would not normally expect all these events to occur in a situation where the principal reason for meeting is a breach of the law and the infliction of harm on another. The Sentencing Circle process is a way of judging that is situated, embodied, and interested as opposed to judging that is unsituated, disembodied, and disinterested. Such contextual reasoning includes perspectives stretched by dialogue and em- pathy. Empathy is a key component in the process, and may be described as attention to the particularized other. It allows for the ability to imaginatively step inside the beliefs, feelings, motives, and thoughts of others in order to reach shared understandings. Empathy for the victim by the offender opens a space for remorse and permits understanding of the offender’s conduct by the victim. Empathy opens the space for reconciliation and forgiveness, and forms the foundation of social change and transformation. It provides a means for bridging differences and enhancing reasoning. Empathy inspires action and a willingness to help others; active empathy calls on all participants to contribute to constructive consensus- based solutions and mutual responsibility. The SC process challenges us to rethink the concept of blame and responsibility. The structural underpinnings of crime challenge us to see crime from differing perspectives in the context of an attitude of caring — the willingness to respond to needs. It is impossible to participate fully in the circle process and not be affected. Sentencing Circles are an approach to crime that addresses victim, offender, and community needs more fully than the traditional court process. The challenge is to link the personal transformative potential to the structural transformation. While the above generally paints SCs in a positive light, fairness requires that we recognize that not all views of this process are favorable. One particular criticism, raised in 1996 by Roberts and LaPrairie, but still largely unanswered, is the need for empirical evaluation of the SC process. Certainly, many of the variables are measurable and, thus, applicable to scientific inquiry. Unfortunately, much of the process has remained ad hoc, perhaps as a consequence of a continued failure to fully Innovations in Canada 369 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) operationalize SCs, or to generate full and consistent support of the model, even within a single jurisdiction. Others have cited the need for extreme caution in the use of SCs, particularly where the power differential between victims and offenders is great. For example, caution is warranted in cases of sexual assault, spousal assault, and in crimes where the victims are children and the offenders are adult. Cayley (1998) cites examples where the assumptions of the community should be closely examined before considering whether or not to employ a SC. Citing Ottawa lawyer Mary Crnkovich and her testimony before the House Justice Committee on behalf of the Inuit Women’s Association (Pauktutit), Cayley noted that an assumption of community homogeneity can drown out the identity and voice of victims in a collective. Instead of a true hearing of the wounds endured, the emotions and the fears of victims who seek justice, and healing through offender accountability and responsibility, victims can be ‘persuaded to comply with the consensual ‘community’ interest rather than . . . ’ their own (Cayley, 1998, p. 207). Regarding R. v. Gladue (1999), cited above, in which the Supreme Court of Canada acknowledged the unsuitability of punitive sentences in the adjudication of cases involving aboriginals, caution in the interpretation of that ruling for the purposes of employing SC in the determination of sentences must be exercised. In R. v. B. L. (2002), for instance, the Alberta Court of Appeal opined that in handing down a suspended sentence, the trial judge ‘erred in his understanding of the breadth of R. v. Gladue (1999). . . . A suspended sentence in the circumstances of this case fails to properly take into account deterrence and denunciation’. The court went on to say While no category of offence is automatically excluded from consideration for a restorative sentence, a sentencing judge must weigh the offender and the offence, properly understanding the role that denunciation and deterrence play in sentencing (R. v. B. L., para. 69). These comments are echoed by Cayley (1998), who notes the words of Yukon Territorial Judge Barry Stuart: ‘Charter rights, statutory provisions, and all the fundamental principles of justice must be retained’ in the SC process (p. 189). Finally, the Alberta Court of Appeal, while not seeking to place strictures on the process involved in mounting a SC, nevertheless offered the following as commen- tary on the case of R. v. B. L.: As noted, the most serious problems with sentencing circles arose with respect to the facts, the lack of input by the parties, the composition of the circle, specifically the wife’s absence in view of [her husband, the victim’s] disability and the absence of objective community members. All these issues worked to undermine the circle’s conclusions (para. 59). RESTORATIVE JUSTICE OPTIONS TO PAROLE SUSPENSION In late 1999, staff working in the Victoria Parole Office of the Correctional Service of Canada (CSC) on Vancouver Island observed how the principles of restorative justice (RJ) were being innovatively applied at the front end of the Canadian justice 370 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) system. Sentencing Circles (see above), along with Community Justice Forums supported by the Royal Canadian Mounted Police (RCMP), stood out as examples of how criminal behavior was being effectively addressed restoratively before offenders became entrenched in the traditional justice system. For Victoria Parole, the question was: Could the same restorative principles that guide ‘front-end’ innovations be applied at the ‘back end’ of the system? The resultant attempt at answering this question has since come to be known as the Restorative Justice Options to Parole Suspension project (RJ Options) (see also Correctional Service of Canada, 1999–2000; McWhinnie & Brown, 1999). Parole Suspension Process In Canada, the former British North America Act established federal jurisdiction over prisoners sentenced to two or more years. Under the rules of the Criminal Code of Canada and the Corrections and Conditional Release Act, some prisoners become eligible to serve portions of their sentence under supervision in the community. The decision to release a prisoner under such supervision is made by the National Parole Board (NPB), which also stipulates conditions of release. However, supervision of these conditions is the responsibility of CSC, a body separate from the NPB. As a major part of their job, community parole officers (POs) supervise offenders in the community, and must continually gauge the level of risk the offender poses to community safety. If the PO feels that risk is escalating (e.g., a parolee breaches a condition to abstain from alcohol), he or she can suspend the offender’s release, resulting in temporary detention in custody pending review. Within 30 days, the PO may return the offender to the community, provided that steps have been taken to ameliorate the risk to community safety (e.g., a commit- ment not to violate the abstain condition, and enrolment in a substance abuse relapse prevention program). This basic example of the ‘parole suspension’ process demonstrates where the RJ Options project might be used — when risk begins to escalate but has not reached the point where community safety is jeopardized. The primary objective of the RJ Options project was to initiate a process using commu- nity group conferences for offenders facing possible parole suspension while maintaining and enhancing community safety. Project Implementation Paul McCold (1998) noted that the best applications of restorative justice are found in practices that employ models such as circles, mediation, and family group conferencing. Community group conferencing is a model developed in Wagga Wagga, New South Wales, Australia, as a way of dealing with youth crime. It involves a tightly scripted method for bringing together the offender and his/her victim(s) in a supportive circle comprised of community members and justice officials. The offender is asked to address the victim(s), take full responsibility for his/her criminal acts, experience remorse and shame, and offer reparations for the damage done, either symbolically, actually, or both. In this example, the offender and victim engage in a process of recognizing that more than just a law was Innovations in Canada 371 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) violated — that real damage happened to real people. In this process, the com- munity is engaged in helping to achieve tangible justice for victims, while assisting the offender in accepting responsibility for his/her part in the violation of a fellow citizen. Community group conferences address Howard Zehr’s (1995) twin principles of harm and engagement by bringing to bear all of an offender’s criminal behavior and the effects of victimization resulting from that behavior (harm). In Canada, the RCMP has facilitated the creation of ‘Community Justice Forums’, which utilize an adaptation of the concept of community group conferencing in addressing some forms of youth crime. This initiative was undertaken with extensive consultation with those involved in the Wagga Wagga project. In February 1999, staff and volunteers of the Victoria Parole were trained as conference facilitators by the Westshore RCMP detachment. Victoria Parole adopted the community group conferencing model and, with its own trained and accredited facilitators, held its first RJ Options session in August 1999. Utilization of a Best Practices Approach The RJ Options project directly taps the two most powerful factors known to influence the risk of criminal offending: antisocial attitudes and antisocial peer affiliations (Andrews & Bonta, 1998; Motiuk & Serin, 1998). The RJ Options project serves to pull together and strengthen prosocial influences present in an offender’s community while targeting antisocial values and beliefs. When an offender is confronted by police, prison officials, treatment staff, or his parole officer, he/she may or may not be able to assess a personal need to make positive changes. However, the power of being confronted by one’s brother, sister, child, spouse, employer, pastor, or even a best friend is quite another matter. Very often, these individuals can tell him what his involvement in crime has meant to them in ways no justice official could. The collective power of the (traditional) justice system, when combined with that added by family and community members, is exponential. Hence, the ability to influence criminal thinking styles (e.g., the belief that no one other than the direct victim is influenced by an offender’s criminal behavior) is also increased. Since offenders referred to the RJ Options project have already been tried and sentenced, the challenge is no longer one of matching a suitable punishment with a particular crime. Rather, the challenge becomes one of repairing harms done. This is an opportunity for the offender to join a particular community and to eventually live at peace. The RJ Options project gathers members of that community around an offender in an effort to resolve problems that, unattended, might escalate to the point where the offender must be removed from the commu- nity. The RJ Options project provides healing and restoration while enhancing public safety. In our experience, community members are more than eager to become engaged in such a process of justice-making. When they do, community members become personally invested in their own safety. Justice is no longer a commodity delivered by dispassionate professionals, but becomes a locally crafted action plan made in collaboration with those same professionals. This plan of action then becomes intrinsically linked with community safety. 372 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) The RJ Options initiative has been presented to a number of organizations (e.g., faith groups, Rotarians, Legionnaires, Universities, and local community groups). In many of these venues, the response has been, ‘It’s about time!’. This sentiment reflects the community’s interest in assuming some of the responsibility for helping to shape what happens with offenders in their midst. This is an appealing concept to many community-minded people. Essentially, it affords communities the opportu- nity to ‘own the conflict’ (Christie, 1977), and, in so doing, to rediscover something of what it means to be a community. Offenders asked to become part of the process (participation is voluntary for everyone) do not find the experience an easy one. For them, two responses are common. (i) ‘This is huge.’ By this, they are acknowledging that this undertaking may be more involved and emotionally taxing than even the court and sentencing process they have already experienced. (ii) ‘I had no idea there were so many people involved in my life.’ This realization is a positive one which usually comes during or after a conference. While some critics are tempted to see the RJ Options project as being ‘soft’ on criminals, it is a difficult, draining, yet ultimately rewarding experience for everyone involved. For many offenders, there is nothing more foreign than sitting in a group comprised of one’s family, friends, community members, victims’ representatives, and correctional workers, and saying what has happened to bring them to this point. Family members, friends, and community all hear the same story, which is simultaneously heard by the parole officer (who may add or clarify information as required). Family members add context and depth to the story. The ‘Unsung Victim’ In implementing the philosophies of restorative justice, there is much concern about victims. Some have said that unless an intervention trying to qualify itself as a restorative practice includes the actual victims of an actual crime with the actual perpetrator, it is only ‘wannabe’ restorative justice. Initially, the RJ Options project was criticized as a such. However, there is due consideration of victim roles and issues in family and community group conferences. This is evident in the story of a mother betrayed by her son’s sexual offences, or that of a grandparent bullied and robbed of her television set for drug money by her cocaine-addicted grandson, or even a twelve-year-old who is bullied on the school ground because his older brother is a ‘con’. Similarly, to hear a woman’s story of being beaten by her lover’s street friends when he was in jail, or that of a young mother and wife fending off drug-debt collectors at her apartment door after her husband was returned to jail, drives home recognition of the integral part that victim perspectives take in this process. Family members of offenders are victims of crime in every sense of the word. However, they are often overlooked in discussions of RJ. Yet, when an offender returns to his home community, these are the people he or she will be with the most. Family members are often frightened, ashamed, angry, and shunned by their own community and other family members. They are also victims of the offender’s crime(s), but often feel obligated by blood ties to bring their victimizer back into their lives, something ‘official’ victims would never be asked to do. Family members Innovations in Canada 373 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) have the same questions, fears and, often, similar trauma issues as do the ‘official’ victims. However, they frequently have nobody to turn to for help. In some cases, families represent more of an antisocial than a prosocial influence on their offending member. This is frequently true with alcoholic families. In one case, the father of an offender insisted that his son meet him at the local tavern, even though the offender was forbidden to imbibe as a condition of his parole. As part of the conference, two things happened. (i) The father learned the true nature of his son’s criminal behavior, including the fact that trouble was more likely to occur while he was drunk. (ii) The father was confronted by his son about his own drinking patterns. At the very least, the pressure to drink with his father (a violation of his condition) was removed. At best, the alcoholism in the family was exposed, leaving room for repair and healing. Does It Work? To date, 22 referrals have been received by the RJ Options project. Of these, seven were not conferenced — four individuals declined participation, the other three had their parole automatically revoked by the NPB before a conference could be held (owing to further criminal charges, which later became convictions). A total of 119 persons participated in the resultant conferences, not including the offenders, with an average of eight community participants per conference. In the context of this project, recidivism is defined as conviction for another criminal offence occurring after referral to the project. The recidivism rate for those not con- ferenced was 43%. On average, those offenders not conferenced spent 53 days in the community. Of the 15 offenders who were conferenced, the recidivism rate is 27%, with the average time spent in the community being 119 days, a difference of just over two months (66 days). The cost of maintaining an offender in the community on supervision by CSC may be estimated as approximately $14 000 per annum, while the cost to maintain that same offender in detention is approximately $40 000. The obvious monetary gains of safely maintaining offen- ders in the community through the RJ Options project should be seen even more positively against the backdrop of increased community engagement with the criminal justice system. While the results above are very promising, they do not represent a formal evaluation. An evaluation is currently under way through the Department of the Solicitor General Canada, Corrections Research Division, with results expected in early 2003. Nonetheless, the current results move thoroughly in the right direction and are certainly in line with what is known to work in correctional practice today (see Andrews & Bonta, 1998). The RJ Options project is also principled, in that it adheres to the best practices of both RJ (harm and engagement) and sound correctional practice (risk, need, and responsivity). The current outcome requires thorough evaluation and scrutiny to determine the project’s true worth. These initial results, however, are encouraging and seem to demonstrate that the principles of restorative justice may indeed be applied at ‘the end of the system’ before the expiration of a sentence, as well as the ‘front end’ of the system before a sentence begins. 374 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) CIRCLES OF SUPPORT AND ACCOUNTABILITY Persons who commit sexual crimes are among the least understood and most publicly feared of all offenders. Public sentiments and legislative attempts in Canada and other countries clearly reflect a general intolerance of sexual offenders. Many individuals espouse a ‘lock them up and throw away the key’ philosophy, with the tabloid media frequently ‘fanning the flames’. A recent sex offender release in Southern Ontario was met with headlines reading ‘A Community Lives in Fear’, ‘Perv’s Neighbours in Scary, Ugly Mood’, and ‘Neighbours: We’ve Done Our Jobs’. The latter headline trumpets the neighborhood’s success in driving the offender from the community. The big question is, however, to where? It is a simple truth that most sexual offenders receive determinate sentences of incarceration. In Canada, higher-risk offenders are frequently detained until the very end of their sentences, resulting in many being returned to the community with little or no community support. Legislation has been enacted in both the provincial and federal domains to aid in long-term risk management, as well as to assuage public fears regarding the return of sexual offenders to community living. However, police services are still adjusting to the increasing demand for public accountability. As such, the police have sought to involve their community partners in managing difficult cases. This section will outline a model for community-based risk management, with a particular focus on the practical aspects of providing support to (and ensuring continued accountability in) high-risk sexual offenders within a professionally supported, volunteer framework. Issues of recruitment, liability, ethics, and the overall efficacy of the project as a means to enhance risk management will also be discussed. Circles of Support and Accountability (COSA), as a means to address offender needs and public concerns, began in 1994 with a group of people from a local church who gathered around a pedophile in a mid-sized Canadian city. These volunteers assisted him in finding a place to live, helped him get settled in the community, and dealt with police, media, and angry community activists. On a daily basis, members of this group visited with the released offender, both supporting him and holding him accountable for his attitudes and actions in the community. Their creative response to this convicted pedophile returning to the community became the template for a similar response, a few months later, in another community. In both of these initiatives, the response balanced the fear of the community on the one hand and the needs of the released offender on the other. The result was the evolution of a model that has come to be known as Circles of Support and Accountability. Motivated by a desire to take the safety concerns of the community seriously, community volunteers create a supportive and responsive community around an offender (known as the core member). The primary concern of all is that there be no more victims. The COSA model recognizes the humanity of both the offender and the victims of their offenses, and challenges the community to work with the offender in ways that promote healing and responsible living. As this work evolved in a more intentional manner, the Mennonite Central Committee (MCC), with its history of pioneering restorative justice initiatives, agreed to sponsor a COSA pilot project focused on the re-integration of warrant expiry sex offenders. Innovations in Canada 375 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) While no formal mandate existed for government involvement, funding and support were provided by the Correctional Service of Canada, based on moral responsibility. The model that emerged from the initial experiences outlined above was a community-based approach, volunteer driven and professionally supported, that gathered four to six volunteers in a circle around an offender as he returned to the community (see Figure 1). As such, the model represents a shift away from the traditional reliance on professional expertise to resolve the problems and issues of sexual offenders and their behavior in the community. In place of this professionally driven model for problem solving, COSA offers a collaborative approach which makes appropriate use of professional resources in ways which re-empower com- munities to respond to these challenges creatively and responsibly, drawing upon the latent skills of community volunteers. Hence, police and other professionals can join circle volunteers by sitting in on circles, on either a consistent or an as-needed basis. The work of the circle happens in daily contacts between individual circle volunteers and the core member, in coffee shops and the wider community, and in weekly meetings to address issues. Everything from the practical concerns of finding appropriate housing to observations that the core member may be moving into his offense cycle is discussed in the circle. The goal of the circle is not to be therapeutic, but to provide the support and accountability of well trained, profession- ally supported community volunteers. To date, the majority of COSA volunteers have come from churches involved in work with offenders, refugees, the devel- opmentally delayed, and other groups traditionally marginalized in society. Volun- teers are trained in a number of areas, including group dynamics, patterns of sexual offending, related legal issues, and restorative justice principles (see below). These volunteers commit to working with the core member of the COSA and, in turn, the core member commits to working with them. While involvement in a COSA by the core member is voluntary, these commitments are formalized in a shared under- standing of expectations. The COSA interacts regularly with professionals involved with the core member, including police representatives, psychologists, and physicians in ways that both enhance the ability of the volunteers to support the core member and hold him accountable, as well as to strengthen professional understandings of the core member. Where necessary, the COSA also advocates on behalf of the core member with these professionals and others (such as landlords). It confronts him about attitudes and behaviors that could lead to his re-offending. It mediates in situations of conflict with the community and others, including family members and even past Stability in the community Known in the community (references checked) Maturity Healthy boundaries Availability and commitment Balance in . . . &Lifestyle &Viewpoint Figure 1. Volunteer recruitment. 376 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) victims. The COSA walks with the core member through problems and crisis situations and celebrates with him the various anniversaries and milestones in his reintegration to society. In short, the COSA is an attempt to re-create community in practical and realistic ways, around one who, by his own actions, has fallen out of community. Training and Support While Circles of Support and Accountability draw strength from their existence as a community-driven initiative, we acknowledge that volunteers do require training and support. As support for this type of approach has grown, several other Canadian communities have developed COSA initiatives. In response, training materials and resources have been developed nationally as a result of several national gatherings. It was subsequently decided that a National Standards Training and Resource manual should be prepared. To that end, an orientation and training regime is nearing completion. Portions of this training package have been piloted at several locations across Canada. This process assists volunteers to become more comfortable in working with offenders, as well as to educate them regarding sexual offending, risk factors, and means by which they can assist in risk reduction in their communities. The training outline shown in Figure 2 has been developed; a similar model is used in the original pilot project in South-Central Ontario. Preliminary Outcome Data: Recidivism While the Circles of Support and Accountability concept appeared to make sense from a philosophical perspective, it has been necessary to formally evaluate the effect Topics of Training Overview of the Criminal Justice System Restorative Justice Needs of Survivors The Circle Model Effects of Institutionalization Human Sexuality and Sexual Deviance Risk Assessment Boundaries and Borders Conflict Resolution Group Dynamics Building Group Cohesion Circle Functions Crisis Response and Preparing for Critical Incident Stress Working with Correctional Officials, Police, News Media and other Community Professionals Needs Assessment Building a Covenant Court Orders Closing a Circle Figure 2. Volunteer training (4.5 days or 36 hours total). Innovations in Canada 377 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) the initiative has had on its constituent groups, particularly ex-offenders and the community at large. At present, evaluation has been completed in regard to the reoffense rate of core members in the pilot project (Wilson & Prinzo, in press). However, it will be necessary to augment these data with more process-oriented data, that is, information that speaks to the individual involvement of stakeholders and the resultant changes that may or may not have occurred in the community as a whole. This latter component of the evaluation of the pilot project is as yet unfinished, and will be reported at a later date. To date, 30 circles have been undertaken in Southern Ontario (i.e., the pilot project administered by MCC). Mean time at risk was 36 months (also mean length of involvement in the program), with the range being from nine months to almost seven years. Average STATIC-99 (Hanson & Thornton, 1999, 2000) scores confirm the high-risk status of offenders involved in the program. In comparing the expected recidivism rate with the observed recidivism rate, using STATIC-99 survival data, we have found that recidivism has been reduced by more than 50% (eight expected versus three observed instances of sexual recidivism). Further, from a harm reduction perspective (see Laws, 1996; Marlatt, 1998), each incident of sexual recidivism was categorically less invasive and less severe than the offense for which the offender had most recently been incarcerated. It should be noted, however, that the actuarial projections provided by the STATIC-99 standardization sample appear to overestimate risk in this group. In a soon-to-be-released evaluation of the COSA pilot project, offenders receiving assistance via a circle reoffended at a lower rate incrementally in comparison with a matched control sample (Wilson, Picheca, & Serin, 2001). CONCLUSIONS We are firmly convinced that prospects for offender success in the community are significantly increased when the offender has a supportive network and a real accountability framework, especially when both are derived from community involvement sensitive to both victim and offender needs. While this is certainly intuitive, it is also supported by the data reported here, as well as by studies demonstrating the benefits of collaborative, community-based approaches (Wilson, Stewart, Stirpe, Barrett, & Cripps, 2000). We hope that further investigative reviews, currently under way, will lend additional credence to this proposition. From the interim data presented above, it would appear that these initiatives have assisted the management of offender risk in the community while maintaining offender accountability, through attention to the principles of risk, need, and responsivity (Andrews & Bonta, 1998). However, data regarding the process of offering and being involved in such endeavors are required to complete the evaluation picture. This component of evaluation will need to solicit process information from offenders and their families/friends, community volunteers and their families/friends, professional and other adjunct persons, and members of the community at large. The intent must be to qualitatively evaluate the effect of involvement in such projects on the various subgroups of stakeholders, while also soliciting information from community persons not specifically involved in the project (as a means to gauge the education and public information component). 378 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) Presently, support for restorative justice initiatives has come head to head with support for the ‘get tough on crime’ agenda. Both of these perspectives have increased community safety at heart but, clearly, the means by which that increased safety is to be achieved is radically different. The research literature (e.g., Andrews & Bonta, 1998) suggests that initiatives which increase community involvement in holding offenders accountable is more likely to result in decreased recidivism. In those communities where restorative techniques have been employed, stakeholders report feeling more knowledgeable about the system and, generally, feel more empowered in dealing with risk. However, most examples result from relatively tight-knit circumstances where, perhaps, ‘community’ means something different than it does in larger, urban settings with a greater degree of anomie. Notwithstanding the important gains we have made with our, admittedly select, groups of offenders, the real key to long-term success seems to be in promoting community development. That is, communities require assistance in getting to the point where they will tolerate initiatives such as those described in this article. We believe that tolerance will increase as links grow between various community members. The examples presented here have garnered support from community agencies and leaders in relatively tight-knit communities, but the blessing of the average citizen has been given with many caveats and misgivings, if given at all. Larger communities appear to be at a distinct disadvantage when it comes to hands-on, community-based risk management. Clearly, there is still much to be accomplished in appropriately assisting our communities to address the realities of risk and risk management inherent in returning offenders to our midst. REFERENCES Andrews, D. A., & Bonta, J. (1998). The psychology of criminal conduct (2nd ed.). Cincinnati, OH: Anderson. Cayley, D. (1998). The expanding prison: The crisis in crime and punishment and the search for alternatives. Toronto: Anansi. Christie, N. (1977). Conflicts as property. British Journal of Criminology, 17, 1–4. Church Council on Justice and Corrections. (1996). Satisfying justice: Safe community options that attempt to repair harm from crime and reduce the use or length of imprisonment. Ottawa, ON: Author. Correctional Service of Canada. (1999–2000). Alternatives to revocation: Safely sustaining offenders in the community. Strategic Planning and Policy Branch (available from the authors). Hanson, R. K., & Thornton, D. (1999). Static-99: Improving actuarial risk assessments for sex offenders. (User Report 1999–02). Ottawa, ON: Department of the Solicitor General of Canada. www.sgc.gc.ca. Hanson, R. K., & Thornton, D. (2000). Improving risk assessments for sex offenders: A comparison of three actuarial scales. Law and Human Behavior, 24, 119–136. Laws, D. R. (1996). Relapse prevention or harm reduction? Sexual Abuse, 8, 243–247. Marlatt, G. A. (1998). Harm reduction: Pragmatic strategies for managing high-risk behaviors. New York: Guilford. McCold, P. (1998). Restorative Justice Handbook. Corrections Compendium, 23, 20–28. McWhinnie, A. J., & Brown R. E. (1999). Restorative justice alternatives to parole suspension. Journal of the American Probation and Parole Association, 23, 44–46. Motiuk, L., & Serin, R. (1998). Situating risk assessment in the reintegration potential framework. Forum on Corrections Research, 10, 19–22 (also available at www.csc-scc.gc.ca). R. v. B. L. (2002) A. R. 44. R. v. Gladue (1999) S.C.R. 688. R. v. Morin (1995) Sask. R. 120. Roberts, J. V., & LaPrairie, C. (1996). Sentencing circles: some unanswered questions. Criminal Law Quarterly, 39, 69–83. Innovations in Canada 379 Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) Wilson, R. J., Picheca, J. E., & Serin, R. C. (2001, November). Circles of Support & Accountability: Evaluating the efficacy of professionally-supported volunteerism in the long-term reintegration of high-risk sexual offenders. Paper presented at the 20th Annual Conference of the Association for the Treatment of Sexual Abusers, San Antonio, TX. Wilson, R. J., & Prinzo, M. (In press). Circles of support: a restorative justice initiative. Journal of Psychology & Human Sexuality. Wilson, R. J., Stewart, L., Stirpe, T., Barrett, M., & Cripps, J. E. (2000). Community-based sex offender management: Combining parole supervision and treatment to reduce recidivism. Canadian Journal of Criminology, 42, 177–188. Yantzi, M. (1998). Sexual offending and restoration. Waterloo, ON: Herald. Zehr, H. (1995). Changing lenses: A new focus for crime and justice. Waterloo, ON: Herald. 380 R. J. Wilson et al. Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 363–380 (2002) 
work_vkd5udg7yfhjrlsokvpfbhdbwu	----	Cronfa - Swansea University Open Access Repository _____________________________________________________________ This is an author produced version of a paper published in : Modern Law Review Cronfa URL for this paper: http://cronfa.swan.ac.uk/Record/cronfa33804 _____________________________________________________________ Paper: Donoghue, J. (in press). The Rise of Digital Justice: Courtroom Technology, Public Participation and Access to Justice. Modern Law Review _____________________________________________________________ This article is brought to you by Swansea University. Any person downloading material is agreeing to abide by the terms of the repository licence. Authors are personally responsible for adhering to publisher restrictions or conditions. When uploading content they are required to comply with their publisher agreement and the SHERPA RoMEO database to judge whether or not it is copyright safe to add this version of the paper to this repository. http://www.swansea.ac.uk/iss/researchsupport/cronfa-support/ http://cronfa.swan.ac.uk/Record/cronfa33804 http://www.swansea.ac.uk/iss/researchsupport/cronfa-support/ Modern Law Review (MLR) The Rise of Digital Justice: Courtroom Technology, Public Participation and Access to Justice Jane C. Donoghue* This article addresses a little discussed yet fundamentally important aspect of legal technological transformation: the rise of digital justice in the courtroom. Against the backdrop of the government’s current programme of digital court modernisation in England and Wales, it examines the implications of advances in courtroom technology for fair and equitable public participation, and access to justice. The article contends that legal reforms have omitted any detailed consideration of the type and quality of citizen participation in newly digitised court processes which have fundamental implications for the legitimacy and substantive outcomes of court-based processes; and for enhancing democratic procedure through improved access to justice. It is argued that although digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice. Keywords: information technology; access to justice; virtual courts; digital justice; public participation _________________________________________________________________________________ INTRODUCTION In an article published in this journal two decades ago, Robin Widdison posed the question: ‘What will legal practice be like a quarter of a century from now?’1 In attempting to predict how information technology (IT) would transform the way that future lawyers practice law, Widdison concluded that ‘law practice will be subsumed and metamorphosed by the information revolution’, ultimately changing the legal landscape ‘out of all recognition’.2 Acknowledging that prediction is ‘a risky business’, Widdison nonetheless accurately identified, with an impressive degree of foresight, the introduction of * Professor of Criminology, College of Law and Criminology, Swansea University. Sincere thanks are due to Nicola Padfield, John Martyn Chamberlain and the two anonymous reviewers for their invaluable comments on an earlier draft of this article. 1 R. Widdison, ‘Electronic Law Practice: An Exercise in Legal Futurology’ (1997) 60 MLR 143. 2 ibid, 162. numerous technological innovations which are now beginning to permanently alter the paradigm of legal praxis, including the adoption of electronic documentation, digital case files and case management systems; the implementation of audio/video links and conferencing; the development of online plea systems; and the growth of ‘virtual’ legal advice.3 Nearly a quarter of a century has passed since Widdison’s article was published and the legal profession stands at a precipice. Rapid technological advancement in recent years has meant that law is at a pivotal point in its development: the legal profession is changing as it tries to keep pace with new technologies and devices that empower and enable and yet which can also threaten and divide. Digital technologies are colonising both civil and criminal legal procedure, resulting in a radical transfiguration of evidential, procedural and documentation mechanisms.4 The automation of high volume, low level processes and the increasing prevalence of digital applications and artificial intelligence (AI), raises critical issues concerning the use of data, privacy, digital intellectual property, security, and human rights and ethics compliance in digital settings. This article addresses a little discussed yet fundamentally important aspect of legal technological transformation: the rise of digital justice in the courtroom. While there have been a number of influential studies on the impact of technology more generally upon the future of the legal profession,5 and much has been written in recent years about the legal regulation of new technologies such as nanotechnology, robotics, information and communications technologies,6 far less attention has been devoted to examining the significant ramifications of technology specifically for courtroom practices and procedures and there is a scarcity of literature which seeks to theorise what the consequences of digital courtroom innovations may be for enhancing public participation in the administration of justice, or the impact of technology upon access to justice, particularly for historically marginalised and disempowered populations. Indeed, Widdison frames his analysis of the future of legal technology 3 As is to be expected given the difficulties inherent in predicting technological futurology, not all of Widdison’s predictions were entirely accurate and he understandably he did not foresee the formidable impact of social media, the development of litigation digital applications (‘apps’), or the increasing prevalence of digital evidence presentation resulting from the advent of ‘big data’. 4 E. Murphy, ‘Databases, Doctrine, and Constitutional Criminal Procedure’ (2010) 37 Fordham Urban Law Journal 803. 5 Most notably, R. E. Susskind, The Future of Law (Oxford: Oxford University Press, 1996); R. E. Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford: Oxford University Press, 2010); R. E. Susskind, Tomorrow's lawyers: an introduction to your future (Oxford: Oxford University Press, 2013); see also, B. Simpson, ‘Algorithms or advocacy: does the legal profession have a future in a digital world?’ (2016) 25 Information and Communications Technology Law 50; H. Sommerlad, S. Harris-Short, S. Vaughan and R. Young (eds) The Futures of Legal Education and the Legal Profession (London: Bloomsbury Publishing, 2015); S.I. Friedland, ‘Adaptive Strategies for the Future of Legal Education’ (2015) 61 Loyola Law Review 211. 6 R. Brownsword, Rights, Regulation and the Technological Revolution (Oxford: Oxford University Press, 2008). around the concept of ‘professional ethos’ to explain how IT advances might alter and fragment existing professional organisational structures, rather than seeking to develop a theoretical approach to understanding technology in the context of fundamental legal principles. Elsewhere, analyses of courtroom IT have tended to focus upon specific, individual innovations which have been examined in isolated silos. In this regard, it is important to recognise that although advances in courtroom technology have simultaneously proliferated internationally, a comparable situation is to be found in other jurisdictions where attempts to theorise courtroom technology have been limited. In the United States (US), for example, ‘very little interest and attention has been given in literature to the changes that have occurred in association with the digitization of the judicial system despite their relevance for the operation of almost every other activity of the State’.7 Although it is sine qua non that courts ought to reflect advances in society, historically in the United Kingdom (UK) and elsewhere, the courts and to a lesser extent, the legal profession, have been amongst the most conservative professional domains in terms of technology adoption and in harnessing advances in technology to improve practice.8 In recent years, this has begun to change dramatically as a result of the large scale diffusion of technologies throughout the courts in most European countries, the US, Australasia and beyond.9 As a consequence, there are now a range of inter-related technological advances which will fundamentally impact upon and irreversibly change the ways that courts conduct their business, which include inter alia, cloud computing; ‘big data’; mobile and wireless technology; and social media. In particular, the potential for the use of technologies in court to expedite processes and procedures which would otherwise be protracted and laborious has been identified as one of the principal benefits of increasing digitisation.10 However, the inevitability of greater courtroom technological innovation also raises many urgent and challenging questions for systems of justice globally, particularly in respect of defendant rights, procedural justice and ensuring that new technological structures and tools systematically enhance, rather than diminish, participation in the courtroom. 7 F. Contini and A. Cordella, ‘Assembling law and technology in the public sector: The case of e- justice reforms’ in Proceedings of the 16th Annual International Conference on Digital Government Research (New York: ACM, 2015). 8 H. B. Dixon, ‘The Evolution of a High Technology Courtroom’ in Future Trends in State Courts (Virginia: National Center for State Courts, 2011); B. Schiffner, ‘Lights, Camera, Action: AV Technology is changing the landscape of the courtroom’ (2012) 9 Courts Today 16. 9 M. Velicogna, ‘Justice Systems and ICT: What can be learned from Europe?’ (2007) 3 Utrecht Law Review 129; G. Lupo and J. Bailey, ‘Designing and Implementing e-Justice Systems: Some Lessons Learned from EU and Canadian Examples’ (2014) 3 Laws 353. 10 M. Workman, ‘Advancements in technology: New opportunities to investigate factors contributing to differential technology and information use’ (2007) 39 International Journal of Management and Decision Making 318. The recent emergence of new forms of justice system technology has precipitated increasing scholarly interest and debate about how digital tools and innovations may ameliorate traditional courtroom practices. To date, the majority of academic attention has focused upon various types of administrative and cultural challenge as a barrier to successfully adopting and implementing courtroom technology; and the corresponding analytical frameworks that have been developed have tended to adopt an instrumental approach to account for the success/failure of technological implementation, drawing as they do upon information technology and change management literature. This literature has predominantly been concerned with what ‘success’ in court digitisation ‘looks like’, how it can be achieved, and practical barriers to effective adoption.11 Although a number of scholars have raised important concerns about how legal, social, economic and technological issues variously intersect with notions of due process and procedural justice in the legal system,12 scant attention has been devoted to providing a theoretical analysis of how advances in court technology, which appear to collectively privilege efficiency and cost reduction, ought to be reconciled with enhanced public participation and access to justice.13 Against the backdrop of the government’s current programme of digital court modernisation in England and Wales, I consider the implications of advances in courtroom technology for fair and equitable public participation, and access to justice. In this article, it is not my intention to review the full panoply of new technological tools and innovations but instead to concentrate on several of the most salient digital components of the court reform agenda (video link technology; systems for online convictions; and access to courts and digital services). I posit that the pervasiveness of technocratic 11 M. E. Heintz, ‘The digital divide and courtroom technology: Can David keep up with Goliath?’ (2002) 54 Federal Communications Law Journal 567; F. Gelinas, ‘Interoperability and Standardization of Cyberjustice Systems: The Challenges Ahead’ (2006) 10 Lex Electronica 1; L. Bachman, ‘How to Take Advantage of Courtroom Technology’ (2013) 40 Litigation 14; B.A. Aubert, G. Babin and H. Aqallal, ‘Providing an Architecture Framework for Cyberjustice’ (2014) 3 Laws 721. 12 D. Reiling, ‘Doing Justice with Information Technology’ (2006) Information and Communication Technology Law 152; F. Senécal and K. Benyekhlef, ‘Groundwork for Assessing the Legal Risks of Cyberjustice’ (2009) Canadian Journal of Law and Technology 41; L. Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Oxford: Routledge, 2010); E. Rowden, ‘Virtual courts and putting 'summary' back into 'summary justice': merely brief, or unjust?’ in J. Simon, N. Temple and R. Tobe (eds.), Architecture and Justice: Judicial Meanings in the Public Realm (Oxford: Routledge, 2013). 13 See, however, E. Rowden, A. Wallace, D. Tait, M. Hanson and D. Jones, Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings (Penrith, N.S.W: University of Western Sydney, 2013); E. Rowden, Remote participation and the distributed court: an approach to court architecture in the age of video-mediated communication (Melbourne: University of Melbourne, 2011); L. Mulcahy, ‘The unbearable lightness of being? Shifts towards the virtual trial’ (2008) 35 Journal of law and society 464. discourse and economic rationalism within the facilitating institutional landscape fails to take proper account of the way that access to legal institutions and processes shapes the way that courts serve as arenas for public participation. Legal reforms have omitted any detailed consideration of the type and quality of citizen participation enabled by newly digitised court processes which have fundamental implications for the legitimacy and substantive outcomes of court-based processes; and for enhancing democratic procedure through improved access to justice. I conclude that while digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice. TECHNOLOGY IN THE COURTROOM Courtroom technology has broadly been defined as: ‘any system or method that uses technology in the form of electrical equipment to provide a clear benefit to the judicial process’.14 More specifically, the various technologies used in court can include IT equipment, such as laptops, iPads, court recording, transcription and video/audio conferencing technology; as well as administrative software such as case management systems, e-filing systems, e-libraries, case law indexes, and sentencing support systems. Over the last two decades, many jurisdictions internationally have sought to embed and extend digital justice processes within the framework of their court systems, resulting in substantive transfigurations in digital court architectures. In the US, for instance, Wiggins observes that the use of new forms of technology within courtrooms has ‘fundamentally changed the administration of justice, and has revolutionised judicial practices’.15 Integral to these developments have been reforms to pre-existing and ad hoc forms of working and court practice, premised upon the notion of greater economic rationalisation to achieve reductions in expenditure and meet fiscal imperatives. As a consequence, determinations of ‘success’ in court modernisation have largely been concerned with the quantification of economic benefits associated with reductions in traditional resource allocation and the reconfiguration of court practices and procedures. The momentum of reform has spawned a rampant generation of new technologies and tools; yet little is currently known about how the use of courtroom IT impacts upon case outcomes, or how virtual technologies are experienced differentially across participant populations, despite the extensive diffusion of technologies across courtrooms internationally. In England and Wales, technological innovations in court have taken much longer to gain traction than in other comparable international jurisdictions and the courts and tribunals system has for many years operated without even basic systems of IT, utilising archaic and resource intensive paper-based ways 14 M. Gruen, The World of Courtroom Technology (Virginia, USA: Center for Legal and Court Technology, 2003). 15 E. C. Wiggins, ‘The courtroom of the future is here: Introduction to emerging technologies in the legal system’ (2006) 28 Law and Policy in International Business 117. of working.16 Despite the considerable historical legacy of (largely unsuccessful) efforts to encourage greater utilisation of technology and the inculcation of digital processes across the courts system in England and Wales,17 the courts were traditionally viewed in silos, situated ‘on the margins’ of the justice system.18 As a consequence of the advancement and diffusion of technology across a multitude of professional and private domains over a number of years, the courts can no longer be seen as a marginal entity but are now part of the wider inter-linked technological strata. The growth of the ‘internet of things’,19 resulting from the integration of mobile devices including smart phones, together with embedded networked communications and emergent platforms into modern life, has inevitably brought about greater technological assimilation into legal domains. Once prohibitively expensive for most courts, technology costs have been reducing resulting in greater and more widespread use of technological support tools in courts. As a result, the integration of technology has since become central to government reforms of Her Majesty’s Courts and Tribunals Service (HMCTS) in England and Wales. The first virtual courts were trialled in South East London and Kent in 2009, enabling these magistrates’ courts to conduct first hearings of criminal cases by a live link between the court and police stations.20 Subsequently, the Conservative-led Coalition government began outlining plans for the broader introduction of virtual courts as well as prison to courts video links in their Swift and Sure Justice White Paper in 2012.21 In 2013, the government then committed £160 million to improve digital working across criminal justice agencies; to create ‘digital courtrooms’; and to make Wi-Fi 16 P. Darbyshire, Sitting in judgment: the working lives of judges (London: Bloomsbury Publishing, 2011). 17 Civil Justice Review: Report of the Review Body on Civil Justice Cm 394 (1988); H.K. Woolf, Access to Justice: Final Report (London: HMSO, 1996); P. Creswell and J. Winegarten, Modernising the Civil Court, the Judges’ Requirements for IT in the 21st Century (London: Courts Service, 2001). 18 H. Brooke, ‘The Legal and Policy Implications of Courtroom Technology: the Emerging English experience’ (2004) 12 William and Mary Bill of Rights Journal 699. 19 F. Wortmann and K. Flüchter, ‘Internet of things’ (2015) 57 Business and Information Systems Engineering 221. 20 M. Terry, S. Johnson and P. Thompson, Virtual Court Pilot Outcome Evaluation, Ministry of Justice Research Series 21/10 (London: MoJ, 2010). Although the terms ‘virtual court’ and ‘e-court’ are often used interchangeably, a virtual court generally refers to a court which has implemented video conferencing technology to enable remote testimony, while an ‘e-court’ is now associated with a high specification, fully outfitted courtroom (which encompasses different types of court including aspects of both ‘paperless’ and ‘virtual’ courtrooms): F. I. Lederer, ‘The Road to the Virtual Courtroom? A Consideration of Today’s and Tomorrow’s High-Technology Courtrooms’ (1999) 50 South Carolina Law Review 799. 21 Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System (London: MoJ, 2012) available to all professional court users as well as in all the places defence practitioners conduct business.22 Evidence presentation equipment, in the form of tablets for magistrates and large in-court TV screens were introduced via the Magistrates In-Court Presentation Project (MiCP), which was set up in 2014, removing the need for hard copy evidence. While modernisation had begun to take shape in a rather piecemeal fashion, movement towards wholesale reform was bolstered by the publication, in January 2015, of Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings, which reported on current practices and procedures from charge to conviction or acquittal, with a particular focus on pre-trial hearings and made recommendations about how such procedures could be streamlined, or improved, with the use of technology.23 Thereafter, in November 2015, the government began an ambitious £700m five year digital modernisation programme to improve efficiency within the courts and tribunals system, which is set to be achieved primarily through the automation of routine administrative tasks and a reduction in the amount of etiolated and outdated paper processes, thereby minimising duplication between agencies and unnecessary attendance at court.24 A further £270m is being made available to develop a fully connected criminal courtroom by 2020. As of September 2016, more than 12 million pages of evidence have been digitally uploaded and video link systems have been installed in 130 Crown, magistrates’ and civil courts.25 A government update on the programme of reforms was published on 15 September 2016, in the Ministry of Justice’s consultation paper Transforming Our Justice System, which included details of plans to digitise every court and tribunal in England and Wales as well as the 22 The service (known as HMCTS’ Professional Court User Wi-Fi) was rolled out across courts between 2014 and 2016. It should be noted that unrepresented defendants do not, however, have access to court Wi-Fi. 23 The Rt. Hon. Sir Brian Leveson, Review of Efficiency in Criminal Proceedings (London: HMSO, 2015). The Review made a number of key recommendations, including the use of video and audio hearings as the ‘default position’ for courts; the widespread adoption of ‘appropriately locked-down computers linking lawyers and in-custody clients via internet-based video conferencing [to] allow instructions to be obtained far more efficiently and with considerable saving of time and public money’; greater emphasis upon digital evidence gathering, including the use of evidence gathered from police body worn cameras; and the adoption of improved case management systems, at [50, 58, 274]. 24 Since early 2016, the Crown Prosecution Service and HMCTS have been developing a shared digital platform (the ‘CJS Common Platform Programme’) for criminal cases to permit multiple agencies to work from the same digital information, facilitating greater integrated working; and a cloud-based ‘Digital Court Store’ to enable the criminal justice system to operate digitally by default, including in interactions with the public. 25 Ministry of Justice, ‘Courts reform gives stronger protection for victims and witnesses’ (MoJ Press Release, 15 September 2016) at: https://www.gov.uk/government/news/courts-reform-gives-stronger- protection-for-victims-and-witnesses (last accessed 25 November 2016). piloting of a new system of online convictions and fines for summary, non-imprisonable offences.26 Full automation and digitisation of the entire process of civil money claims is to be achieved by 2020.27 The programme of digital reforms has been accompanied by widespread court closures across England and Wales. During the last Parliament, the Coalition government closed 146 courts, with a further 86 courts and tribunals planned for closure by the current Conservative government, leaving just over 300 courts remaining across England and Wales. In common with other jurisdictions internationally, economic rationalisation has been at the forefront of this agenda; and the policy emphasis has been on replacing inefficient and under-used courtrooms with courtroom IT projects designed to address existing problems of courtroom delay and expense. Yet determining how to successfully implement justice system technology, and indeed even defining success with respect to technological change, is not a simple matter, particularly when the programme of modernisation is motivated chiefly by an external rationale of cost reduction and efficiency, rather than a logic derived from a principled application of technology which recognises that although technologies are themselves morally neutral, their application is not always benign. Technologies must therefore be built and deployed in ethical ways which enhance rather than compromise court user participation, while simultaneously upholding fundamental legal principles such as fairness, impartiality and access to justice. In the second part of this article, I contend that the nature of (public) participation in court and legal processes is central to the democratic legitimacy and equity of digital proceedings. Herein, I posit that access to legal institutions and processes shapes the way that courts serve as arenas for public participation. By focusing upon: (i) the type and quality of participation and communication that is enabled by digital court processes conducted remotely and (ii) policy/political frameworks which impact upon access to courts, legal information and legal services, I examine the associated implications for the legitimacy of digital court-based processes; as well as the scope for IT to enhance democratic procedure through improved access to justice. PUBLIC PARTICIPATION, PROCESS EFFICIENCY AND OUTCOMES Scholars have to date identified a range of benefits associated with enhanced public participation in both law and governance.28 Much of the literature on public participation frequently tends towards 26 Ministry of Justice, Transforming Our Justice System (London: MoJ, 2016). 27 ibid. 28 M. N. Herian, J. A. Hamm, A. J. Tomkins and L. M. P. Zillig, ‘Public participation, procedural fairness, and evaluations of local governance: The moderating role of uncertainty’ (2012) 22 Journal of Public Administration Research and Theory 815; D. A. DeCaro and M. K. Stokes, ‘Public participation and institutional fit: a social–psychological perspective’ (2013) 18 Ecology and Society 40; T. Aitamurto and H. Landemore, ‘Crowdsourced Deliberation: The Case of the Law on Off-Road Traffic in Finland’ (2016) 8 Policy and Internet 174. conceptualising participation in terms of improved transparency and decision-making through participant involvement as an alternative to more traditional autonomous bureaucracies, in providing a response to the actual and perceived failures of expert regulation by public administration.29 Moreover, public participation encompasses mechanisms of public involvement including access to information, consultation, and dispute resolution, through which participation may improve the substantive output of regulation and enhance the quality of decisions via input from a wider range of (expert and non-expert) participants.30 While access to justice has been identified as associated with public participation,31 it has not generally been conceptualised as its primary objective, although public access to information on law and legal processes is nonetheless understood as a key facilitator of participation through improving (public) legal education, access to advice/services, and in raising awareness.32 For the purposes of this article, my analysis here is not concerned with public participation in the sense of enhancing the direct incorporation of citizens into complex policy-making and decision-making processes, rather it attempts to broaden our understanding of how a theoretical framework built around a notion of public participation may influence access to justice ideals. The nature of public participation in newly digitised processes is inextricably aligned with access to justice because access to justice is based upon a contextual conception of the law which goes beyond a narrow interpretation of ‘access’ based simply upon the availability of legal aid; instead it operates much more broadly in searching for ways to overcome the difficulties or obstacles which make legal rights and civil liberties non-accessible to many individuals, who, for a variety of social, cultural and economic reasons, have no capacity to accede to and benefit from those liberties.33 Access to justice therefore encompasses the availability of legal aid as well as the opportunity to participate (access to courts as a means for the fair settlement of disputes), and the nature and characteristic(s) of that participation (just and equitable participation in associated court and legal processes). The type and quality of participation is therefore, a critical component in coming to understand how existing distributions of power and inequality impact upon the potential and limits of digital justice processes for improving both access to justice and substantive process outcomes for participants. However, legal processes are frequently evaluated on the basis of whether they are effective in achieving ‘good results’, rather than their capacity to serve process values. The disparity between 29 M. Lee and C. Abbot, ‘The usual suspects? Public participation under the Aarhus Convention’ (2003) 66 MLR 80. 30 J. Dryzek, The Politics of the Earth (Oxford: Oxford University Press, 1997). 31 ibid. 32 A. Brisman, ‘The violence of silence: some reflections on access to information, public participation in decision-making, and access to justice in matters concerning the environment’ (2013) 59 Crime, Law and Social Change 291. 33 M. Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World Wide Access to Justice Movement’ (1993) 56 MLR 282. process values and good results has previously been well articulated by Summers who notes that ‘process values’ denotes the standards of value by which we may judge a legal process to be good as a process apart from any ‘good result efficacy’ it may have.34 In this regard, ‘a legal process can be good, as a process, in two possible ways, not just one: It can be a good not only as a means to good results, but also as a means of implementing or serving process values such as participatory governance, procedural rationality and humaneness.’35 As Summers notes, modern societies have historically given far less evaluative emphasis to processes than to results and ‘even when values such as participation, fairness, and rationality are recognised, they are typically over-ridden.’36 In order to ascertain to what extent the court reforming agenda in England and Wales attempts to inculcate process values (either in improving the substantive fairness of processes, or in enhancing democratic procedure through improved access to justice), it is necessary to consider how the notion of participation is both manifested, and weighted against, economic rationalisation drivers in newly digitised court processes. In the pages that follow, I contend that a concern with ‘good result efficacy’ is evident in current approaches to the modernisation of court processes wherein little interest has been paid to designing legal processes to implement or serve process values. Instead, what constitutes good process results has invariably been linked to the notion of efficiency in court productivity and specifically, the speed at which case proceedings are completed.37 In support of my conceptual argument, I now consider several of the most pertinent aspects of the government’s programme of reforms: video link technology for defendants and witnesses; systems for online convictions; and access to legal services. Video link technology for defendants In numerous jurisdictions including the UK, video link technologies are increasingly being used to enable defendants to appear in court from prisons and police stations; to enhance the delivery of expert evidence;38 and to provide vulnerable victims and witnesses with the opportunity to provide 34 R. Summers, ‘Evaluating and Improving Legal Processes – A Plea for Process Values’ (1974) 60 Cornell Law Review 1, 3. 35 ibid, 4. 36 ibid, 5 37 Historically, reviews of the courts system have similarly focussed upon improving or delivering greater efficiency: Report of the Royal Commission on Criminal Justice Cm 2263 (London: HMSO, 1993); Criminal Courts Review (London: Royal Courts of Justice, 2001). For an instructive discussion of the notion of ‘efficiency’ contained within the Leveson Review, see L. Marsh, ‘Leveson’s Narrow Pursuit of Justice: Efficiency and Outcomes in the Criminal Process’ (2016) 45 Common Law World Review 51, arguing that the overly narrow conceptualisation of efficiency used by Leveson fails to elucidate how cost-savings should be weighted against the accuracy of verdicts. 38 J. Horan and S. Maine, ‘Criminal Jury Trials in 2030: A Law Odyssey’ (2013) 41 Journal of Law and Society 551. evidence in a secure, convenient and less traumatic environment, as well as to pre-record their witness testimony.39 In England and Wales, the Police and Justice Act 2006 made provision for the attendance of a defendant at preliminary hearings and sentencing hearings by live link so that the defendant may appear from custody or a police station, rather than being taken to court to be physically present.40 Previously, sub-section 57C (7) of the Crime and Disorder Act 1998 made it a requirement that a defendant must consent to participate in a live link hearing. This requirement was subsequently removed by the Coroners and Justice Act 2009; accordingly it is no longer a requirement that a defendant consent to appear in court by way of video link from a police station; and magistrates’ courts may continue to use live links for sentencing hearings following a preliminary hearing provided that the accused attending through the live link ‘is not contrary to the interests of justice’.41 Many magistrates' courts now utilise this form of virtual court for first hearings and sentencing hearings, which has resulted in a significant increase in defendants’ participation in video link technologies. Virtual court first hearings may take place in respect of any offence, including youth court cases, and assessments of the suitability of defendants to appear by video link are initially made by police custody officers. Importantly, determinations about suitability are not uniform and are subject to geographical variation across custody and court areas. In some regions, eligibility/suitability criterion have been abolished (or do not exist at all) meaning that all cases will be put into the virtual court,42 while in other areas the applicable criteria may make provisions for exceptions based upon, for example, evidence of the defendant’s mental health issues.43 As a consequence of the relaxation 39 Rowden et al, n 13 above; K. Leader, ‘Closed-circuit television testimony: Liveness and truth-telling’ (2010) 14 Law, Text, Culture 1. 40 Section 45 of the Police and Justice Act 2006 replaced s 57 of the Crime and Disorder Act 1998 with new sections 57A to 57E, which together constitute Part 3A of the 1998 Act. Section 57C applies to a preliminary hearing in a magistrates’ court where the defendant is either in police detention at a police station and likely to remain there until the beginning of the hearing, or is at a police station in answer to ‘live link bail’ in connection with the offence. Section 46 of the 2006 Act amends the Police and Criminal Evidence Act 1984 s 34 and s 47 and inserts a new s 47ZA (person granted live link bail). 41 Section 106 of the Coroners and Justice Act 2009. These arrangements came into effect on 14 December 2009. 42 In Kent for example, the Virtual Court Eligibility Criteria has been abolished in order to facilitate a seven day remand court. 43 The Virtual Court Eligibility Criteria in London police stations states that all indictable only cases, serious either way cases, breach of bail cases and applications for further detention must appear by virtual court without exception. Other cases must appear by virtual court unless there are more than two co-defendants; there is significant evidence of the defendant having mental health issues; or where the defendant at the police station is being actively aggressive and poses an imminent and of the criteria by which custody officers initially assess the suitability of defendants to appear by video link, many more defendants are eligible to appear in this way at their first court hearing and without the requirement that they consent to their participation in the use of live link technology. Evidence suggests that some defendants prefer the convenience of video link technology as a means to avoid the delay and upheaval associated with travelling to and from court,44 although providing evidence remotely may not always be in their best interests and defendants may also misunderstand aspects of the video link process. An instructive comparison can be made with the adoption of live video link proceedings for immigration bail hearings which were first implemented in England and Wales in 2007. A small scale study conducted by the British Refugee Council found that almost half of the bail applicants sampled reported that they had not received information about how their video link bail hearing would work.45 Those who did receive this information did so through a variety of sources (interpreters, legal representatives, court officials), suggesting that the process of informing bail applicants about the nature of live link proceedings was not standardised and would not therefore ensure that all applicants systematically received this information. As a result, nearly a third of the sample said that they did not understand how the process would work before their bail hearing began. These findings raise particular concerns about the use of live links in criminal hearings because many defendants at police stations are not represented and there is no reason to believe that those defendants, having previously declined legal advice, would opt for legal representation when a determination has been made to proceed by way of live link.46 This aspect is all the more significant given that so many defendants are vulnerable as a consequence of mental health problems, learning, intellectual or social functioning impairments, or physical disabilities and disorders. In these instances, the availability and provision of appropriate legal advice becomes especially salient, particularly with regard to assessing the defendant’s fitness to take part in video linked proceedings; including in respect of the defendant’s physical and mental fitness as well as in determining whether the client has immediate risk of violence which an appearance in handcuffs would not address: Terry et al, n 20 above. 44 S. Forell, M. Laufer and E. Digiusto, ‘Legal assistance by video conferencing: what is known?’ (2011) 15 Justice Issues 1. 45 Refugee Council, Immigration bail hearings by video link: a monitoring exercise by Bail for Immigration Detainees and the Refugee Council (BiD: London, 2008). 46 In a recent US study of virtual bail hearings, Cimino et al found that defendants participating in live link proceedings were more likely to have bail reduction requests denied than defendants whose hearings were conducted in person. They attribute this finding to defendants’ lack of adequate legal representation in virtual hearings, whether as a result of the absence of a defence lawyer or a reduction in the time spent being advised by counsel; E.F. Cimino, Z. Makar and N. Novak, ‘Charm City Televised and Dehumanized: How CCTV Bail Reviews Violate Due Process’ (2014) 45 University of Baltimore Law Forum 57. been subject to inappropriate police pressure and whether they have the necessary communication skills and abilities to enable fair participation in a live link virtual court. However, the final decision to proceed by way of a live link hearing is made by the court: section 57C (6)(A) of the Crime and Disorder Act 1998 states that a live link direction ‘may not be given unless the court is satisfied that it is not contrary to the interests of justice to give the direction'. In this respect, judgments about the suitability of a defendant to give evidence by video link are ultimately decided on the basis of the court’s discretion, which in practice means the court’s view in the light of the facts of the particular case. The criteria by which the courts decide whether video link evidence should or should not be admitted is often relatively unclear: references are casually made to factors in favour or against it, depending on the facts of each case but the courts rarely address this question with a comprehensive, fully structured approach. Presently, the courts exercise a large amount of discretion in deciding whether to proceed by way of a live link hearing and they have offered little guidance on how this should be exercised in the context of the multifarious factors potentially impacting upon defendant fitness to participate in live link proceedings. To date, in considering making a live link direction, the courts have primarily been concerned with the potential for delay and additional expense which may accrue if live link evidence was to be refused,47 rather than factors relating to the suitability of the defendant to participate in live link proceedings or indeed the quality of the defendant’s participation that would be enabled by the video link technology available at court. In R v Akhtar (Siddiqua),48 the Court of Appeal upheld the decision to stay proceedings on the basis of ‘complete technological failures’ whereby the live link had not been set up in such a way that would have enabled the defendant to have meaningfully participated in the trial. The Court held that the mental health position of the defendant and the anxieties the court process was placing upon her meant that the judge had been entitled to refuse to grant an adjournment. However, aside from cases involving the complete failure of technological systems for live link evidence, the courts appear less willing to consider whether poor quality live links may be contrary to the interests of justice. In criminal cases, under the provisions of the Crime and Disorder Act 1998 as amended, a court may make directions for the use of live links provided that defendants are able to see and hear the court and are able to be seen and heard by it.49 Yet it appears that these requirements are being interpreted relatively broadly: in many magistrates’ courts operating with live link facilities, video sound quality is poor, screens will sporadically freeze and are often too small (making it difficult for defendants to communicate effectively with their lawyer) and evidence can frequently be distorted by blue or green lighting on the screen. In addition, it was recently reported by the President of the Family Division that 47 Polanski v Conde Nast Publications Ltd [2005] UKHL 10. 48 [2016] EWCA Crim 390. 49 s 57(1). video links in numerous family courts are 'prone to the link failing and with desperately poor sound and picture quality'.50 Although the technology required to establish a video link is relatively simple, investment in the use of high quality video equipment is essential: where video link footage is not of a good standard, this negatively impacts upon the perceived standard of witness evidence for the purposes of a trial and compares unfavourably with the immediacy of witness evidence given in-person in court.51 Poor quality video link technologies also have implications for judicial assessment of demeanour, which is important in questioning testimony; or for example, when a defendant has facial or other injuries that are not clearly visible on a video link and which can be relevant to a defendant’s claim of acting in self-defence or which can support mitigation and bail applications. While video link technologies used in the private sector are of a considerably higher quality than those currently utilised by the courts and tribunals,52 recent government initiatives indicate a clear policy emphasis upon increasing the quality of courtroom IT, as well as the expansion of video link technology in criminal proceedings and greater public participation in court and tribunal proceedings conducted by video or audio link.53 Given the pace and degree of digital incursion into modern ways of working, technology is likely to continue to feature on political agendas over the coming years and will, in all eventuality, become an omnipresent feature of the courtroom. Therefore, although improvements in technology are evidently required, it is important that the modernisation agenda is also informed by knowledge about how the use of courtroom technology transforms the existing parameters of social interaction and communicative rituals in digital proceedings in order to understand the conditions under which remote technology can be utilised and adapted to enable fair participation. To date, concerns about the impact of remote proceedings upon participatory justice have been embodied within empirical legal scholarship on courtroom architecture both nationally and internationally.54 Herein, the defendant’s ‘physical exclusion’ from the more ‘dignified space’ of the 50 J, Mumby, View from the President’s Chambers (16): Children and Vulnerable Witnesses – Where are We? (Judicial Office: London, 2017). 51 For example, one of the difficulties encountered during the pilot scheme conducted at Kingston Crown Court related to the use of poor quality technology: in one case this resulted in tape recorded evidence from a child witness obtained months previously, deteriorating in quality to such a degree that it was unusable in court: A. Timan, 'Preparing for the Reality of Virtual Courts', London Law Expo 2015 conference, October 2015. 52 A. Marks, What is a Court? A Report by JUSTICE (Justice: London, 2016). 53 Prisons and Courts Bill 2017. It should be noted that although the Bill was abandoned in April 2017, (prior to the dissolution of Parliament in May 2017 and subsequent general election in June 2017) it is likely that the plans for court modernisation detailed in the Bill will only be temporarily affected, with government seeking to progress with digital justice initiatives over the course of the next Parliament. 54 Mulcahy, n 12 above; K. Biber, ‘The spectre of crime: photography, law and ethics’ (2006) 16 Social Semiotics 133. courtroom has been a central focus of a number of legal and socio-legal scholars who contend that defendants are placed at a disadvantage by such technologies.55 For example, it has been suggested that video links may alter the nature of sentencing proceedings by undermining the ‘experience and legitimacy of justice’ when legal participants no longer enter the courthouse.56 As a consequence, the important symbolic function of the courthouse as the home of justice and the presence of law is eroded and effective communication between parties, and the importance of non-verbal cues, is lost. Although there is a lack of evidence to suggest that non-verbal cues (such as emotional responses) offer any reliable basis for determining truth or detecting lies,57 beyond this, we know little about how the changing communicative dynamics associated with remote proceedings in England and Wales affect defendants’ experiences of justice psychologically, or with regard to substantive case outcomes. Across and within national and international jurisdictions, there are currently no standardised formats for producing remote testimony or remote appearances by witnesses or defendants; as such there is significant variation between courts with regard to how remote participants should be presented on screen.58 A range of factors including the processes for determining the type of frame used for different remote witnesses (full body view or head only view of the speaker); the range and distance of the camera to the defendant; and the presence of the defence lawyer in the courtroom or remote location, are key variables affecting how remote proceedings are designed and engineered. At present, very few empirical studies have been conducted on the effects of video conferencing upon non-verbal behaviour and participative status in the courtroom. However, an emerging body of evidence is now beginning to elucidate how the production of remote proceedings impacts upon the substantive nature of courtroom social interactions. Licoppe’s recent research on the production of wide video shots in French courtrooms with remote defendants observed that wide shots (featuring six or more courtroom participants) were almost never used in trial openings, or during interrogative sequences. Instead, medium shots (focussed solely on the current speaker) were favoured.59 In the latter stages of the hearings, however, wide shots were 55 E. T. Bellone, ‘Private Attorney-Client Communications and the Effect of Videoconferencing in the Courtroom’ (2013) 8 Journal of International Commercial Law and Technology 24; N. Feigenson, ‘The Visual in Law: Some Problems for Legal Theory’ (2014) 10 Law, Culture and the Humanities 13. 56 E. Rowden, 'Distributed Courts and Legitimacy: What do we lose when we lose the courthouse?' (2015) Law, Culture and the Humanities, online early edition at http://journals.sagepub.com/doi/abs/10.1177/1743872115612966 (last accessed 15 January 2017). 57 S.L. Sporer and B. Schwandt, ‘Moderators of non-verbal indicators of deception: A meta-analytic synthesis’ (2007) 13 Psychology, Public Policy and Law 1. 58 J. Smith, ‘Remote Testimony and Related Procedures Impacting a Criminal Defendant’s Confrontation Rights’ (2013) 2 Administration of Justice Bulletin 1. 59 C. Licoppe, ‘Video communication and “camera actions”: The production of wide video shots in courtrooms with remote defendants’ (2015) 76 Journal of Pragmatics 117. routinely used; for example during counsel's closing arguments or to capture the final announcement about the future scheduling of the decision process. Licoppe contends that the type of video shot used in courtroom proceedings serves to make visible a particular member's interactional competence; the presentation of individuals on screen in video-mediated courtrooms are designed and treated as a visual formulation of their participative statuses. The form of participation enabled by remote proceedings therefore becomes contingent upon the production and communication of images, which is heavily reliant upon the ‘cameraman’ as a key player within the mediated courtroom.60 Moreover, Licoppe et al observe that courtroom hearings are multi-party interactions during the course of which (much) more than two parties can become ratified speakers.61 Tensions are evident when more than one person is involved in any given interaction: these occasions invariably create difficulties for the individual responsible for capturing the interaction, ‘who must accomplish constant adjustments to the video frame’ in their role as ‘producer, filmmaker and film editor on a moment to moment basis with respect to the ongoing hearing’. Licoppe et al observe that the ‘strains’ upon the individual responsible for filming proceedings are further compounded because no provision for training has been made available for individuals ‘to learn how to accomplish such delicate tasks, nor have any guidelines been given to manage screen views, which is striking in such a sensitive institutional setting as a judicial hearing, where equity in terms of access and participation rights and resources is crucial.’62 Similarly, in their analysis of video-mediated interpreting in the criminal justice system in England and Wales, Braun et al observed that a commonly encountered difficulty was to be found when participants were conferred an unjustified level of prominence or ‘visibility’ by virtue of their image being displayed on a large screen, or by being situated directly in the centre of a video screen.63 Seating arrangements also led to interactional difficulties when these arrangements gave the impression that the participants on one side of the video link spoke ‘as one’ or could be perceived ‘as one’ when in fact their roles ought to have been clearly distinguished. Thus, the type of camera shot produced, as well as the broader spatial organisation of video mediated proceedings, are both meaningful and influential actions in altering the communicative dynamics of the courtroom which require careful consideration in the future planning and implementation of digitisation initiatives. 60 ibid. 61 C. Licoppe, M. Verdier and L. Dumoulin, ‘Courtroom interaction as a multimedia event: the work of producing relevant videoconference frames in French pre-trial hearings’ (2013) 23 Journal of Electronic Communication 1. 62 ibid, 20. 63 S. Braun, J. Taylor, J. Miler-Cassino, Z, Rybinska, K. Balogh, E. Hertog, Y. V. Bosch, L. Hogeschool, D. Rombouts, C. Licoppe and M. Verdier, ‘Assessment of Video-Mediated Interpreting in the Criminal Justice System: AVIDICUS 2 Research Report’ (European Commission) at http://wp.videoconference-interpreting.net/wp-content/uploads/2014/01/AVIDICUS2-Research- report.pdf (last accessed 20 April 2017). A related issue concerns the communicative dynamics of the increasingly common use of remote settings (video link conferencing) for the provision of legal advice, which are being adopted as an economical replacement for face-to-face conferences between lawyers and their clients. In jurisdictions internationally, video link technologies have been described as representing a significant shift in the paradigm of the provision of legal aid to incarcerated clients and in providing a ‘major portal for prisoners to access justice’.64 However, to what extent remote settings for the provision of legal advice are able to maintain appropriate and effective standards of communication is a matter of some contention.65 Many defendants have cognitive, mental or physical health issues that may affect their rights while in police detention and/or they may be under the influence of drugs or alcohol, or suffering the effects of withdrawal. Safeguarding defendant rights requires that they are able to communicate effectively and confidentially with their lawyers: where solicitors are unable to take instructions from their client in person, there is the potential that appropriate assessments of physical/mental impairments, as well as the client’s level of understanding of the court process and the consequences of any decisions made may be impaired, especially if the technology used is inadequate and/or of poor quality. More broadly, the benefits associated with face to face legal advice potentially go beyond simply de facto assistance from lawyers: clients who meet in person with their solicitor can also experience psychological benefits in terms of relieving the anxiety and distress that is associated with the conduct of formal legal matters.66 Face to face advice given in ‘real time’ can therefore be extremely important, especially for those who are potentially facing losing their liberty. Nonetheless, we should also be mindful that the quality of legal advice which clients receive exists on a continuum,67 and it should not be assumed that advice given in person will necessarily be of better quality than that which would be imparted by video conferencing - nor is it currently possible to conclude that the quality of interaction, reassurance and support that may be provided by face to face advice cannot in fact be replicated via video link. Indeed, Susskind and Susskind suggest that many recipients of professional (legal) services are in fact seeking a reliable solution or outcome rather than a trusted adviser per se.68 Where remote technology and online services are provided to a high standard, it may be that this provides a sufficient level of comfort and support to users, obviating the requirement for what Susskind and Susskind call the ‘warm adviser’.69 64 C. McKay, ‘Video Links from Prison: Court “Appearance” within Carceral Space’ (2015) Law, Culture and the Humanities 1. 65 Marsh, n 37 above, 55. 66 n 1 above. 67 B. Jeffrey, Independent Criminal Advocacy in England and Wales (London: MoJ, 2014); R. Lewis, ‘Litigation Costs and Before‐the‐Event Insurance: The Key to Access to Justice?’ (2011) 74 MLR 272. 68 R. E. Susskind and D. Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford: Oxford University Press, 2015). 69 ibid. To date, there is no empirical support to affirm or disprove that remote legal services cannot provide an appropriate setting in which standards of communication and reassurance are maintained. Both nationally and internationally, empirical evidence examining the implications of (or quality associated with) the provision of legal advice that clients receive in custody through video conferencing is extremely limited. 70 Very few evaluations have been conducted on video conferencing to clients in custody, despite this form of technology being used widely in Australia,71 and it has also proliferated across state and federal jurisdictions in the US.72 In other domains beyond law, the research literature on video consultations is sparse despite the increasing prevalence of remote technology across a broad range of professions.73 As I have previously noted in my earlier discussion of the nature of public participation, above, the type and quality of participation is a critical component in coming to understand how existing distributions of power and inequality impact upon the potential and limits of digital justice processes. Emerging evidence suggests that when courtroom communication is mediated by video link, the courtroom becomes spatially distributed and the relationships between participants are reshaped. Remote technologies may well have the capacity to produce (or even replicate) effective communication and interaction of the type experienced in traditional face-to-face settings. Therefore, in designing and implementing remote technologies, system architects must endeavour to understand the actual interactive experiences of remote participation for court users rather than making 70 n 44 above. 71 ibid. 72 Bellone, n 55 above. 73 For instance, within the field of medicine, remote video consultations between clinician and patient are being introduced alongside (and occasionally replacing) face-to-face or telephone consultations. Consequently, there is now an emerging parallel literature on online doctor-patient consultations investigating how technology can transform patient interactions with their doctor which is beginning to illuminate the strengths and weaknesses of this medium, and the quality of communication that it enables. This work remains in its infancy, however findings suggest that digital communication does not negatively impact on patient ability to communicate effectively with healthcare professionals, although it is significant that remote participation appears to work best in the context of a pre-existing clinician–patient relationship. Moreover, this literature indicates that the implementation of alternatives to face-to-face consultations have the potential to overcome practical access issues, especially for marginalised groups; H. Brant, H. Atherton, S. Ziebland, B. McKinstry, J. L. Campbell and C. Salisbury, ‘The use of alternatives to face to face consultations: a GP survey’ (2016) 66 British Journal of General Practice 648; T. Greenhalgh, S. Vijayaraghavan, J. Wherton, S. Shaw, E. Byrne, D. Campbell-Richards, S. Bhattacharya, P. Hanson, S. Ramoutar, C. Gutteridge and I. Hodkinson, ‘Virtual online consultations: advantages and limitations (VOCAL) study’ (2016) 6 British Medical Journal 1; C.J. Huxley, H. Atherton, J. Watkins and F. Griffiths, ‘Digital communication between clinician and patient in General Practice and the impact on marginalised groups: a realist review’ (2015) 65 British Journal of General Practice 641. hypothetical assertions about the nature of that participation and the quality of communication that this technology enables. Live link evidence for witnesses The burgeoning use of video link technologies also extends, of course, to vulnerable victims and witnesses, to enable them to provide their evidence in advance through pre-recorded video testimony. In England and Wales, statutory provisions for the cross-examination of vulnerable witnesses have existed for a number of years. The Youth Justice and Criminal Evidence Act 1999 was passed to bring in a comprehensive range of special measures: witnesses and defendants have since been permitted to give evidence by live link provided that they meet the vulnerability criteria set out in the Act which includes the defendant or witness being young and/or suffering from a physical, mental or learning disability. Section 28 of the Act gave the court power to direct that cross-examination of the witness should also be by way of video recording. Until recently however, this provision was never implemented and was only enacted in 2013 when the Ministry of Justice began piloting the pre- recording of cross examination of vulnerable witnesses at Liverpool, Leeds and Kingston upon Thames Crown Courts.74 An evaluation of the pre-recorded cross-examination pilot was published by the Ministry of Justice in November 2016 which heralded the project a success, and the facility to pre- record cross examination is now being rolled out nationally.75 One of the primary benefits associated with the pre-recording of evidence is the potential to elicit fresh evidence soon after the initial police interview has taken place and to remove the risk of memory deterioration, particularly in cases involving child complainants. In R v Powell,76 for example, a conviction of indecent assault against the three and a half year old complainant was quashed on the basis that the seven month interval between initial interview and trial rendered her incompetent under 74 A witness will be eligible for the special measures available under s 28 if they are under 16 years of age at the time of the special measures hearing or they have a mental disorder (within the terms of the Mental Health Act 1983) or they suffer from a ‘significant impairment of intelligence and social functioning’, or they have a physical disability or a physical disorder. The court will also need to find that the quality of evidence given by the witness is likely to be diminished in the absence of this measure. 75 J. Baverstock, Process evaluation of pre-recorded cross-examination pilot (Section 28), Ministry of Justice Analytical Series (London: MoJ, 2016). It should be noted that the study objectives were limited to an evaluation of a small number of interviews with practitioners (n=40) and witnesses (n=16) about their ‘experiences’ of s.28, and the collection of monitoring data on case speed and progression. The evaluation did not seek to provide robust evidence of impact on case outcomes, therefore the findings from the study are not generalisable to other courts and no conclusions can be drawn about the impact of s.28 on cases outcomes. 76 [2006] EWCA Crim 3. section 53 of the Youth Justice and Criminal Evidence Act 1999. Subsequently, the Court of Appeal followed this decision in R v Malicki.77 Although the recently published findings of the Ministry of Justice’s pilot scheme note (as would be anticipated) that witnesses reported the benefits of the avoidance of the trauma of a live hearing; improved witness recall was not found because witnesses were cross examined many weeks, and in some cases months, after the events in question. A key issue therefore relates to the proximity of cross-examination to the commission date of the allegation. While it is intended that in most section 28 cases this takes place close to the date of the allegation, it does not always occur and delays are therefore not necessarily reduced to the extent often assumed. Disclosure may not be a quick process and witnesses can wait to report an old allegation, but still remain eligible under section 28 by the time they choose to do so. Here, the cross-examination does not occur by any appreciable margin closer to commission date. There are examples in other cases of a delay in charge, despite the witness having acted promptly in reporting the matter, and the court thereafter in litigating it under section 28.78 Notably, under section 28, the jury hears no testimony from the witness which is actually current and immediate: they will hear a pre-recording of cross- examination some weeks prior, and an even older Achieving Best Evidence (ABE) interview. In effect, section 28 cases must be trial prepared before cross-examination occurs, which raises multiple challenges relating to any potential late change in instructions, or fresh disclosure of evidence that surfaces after recorded cross-examination has taken place, such as the emergence of another complainant. Clearly, material of relevance may, and often is, served late in the proceedings and yet will need to be put to the witness for comment. As such, there is the potential to have to recall the witness if something vital was not asked.79 Section 28 does not, therefore, remove the possibility of multiple cross-examination, or indeed the anxiety associated with it for vulnerable witnesses. Moreover, although the Crown Prosecution Service (CPS) is expected to seek to obtain third party material voluntarily within seven days of charge, and local authorities are to be made aware of the section 28 process and the need to act swiftly in response to any third party production orders, it will remain to be seen whether the problems routinely encountered with third party disclosure can be overcome. Insufficient disclosure occurring pre-cross-examination is an issue which is yet to be fully tested by the courts. Section 28 cases require that a list of questions in cross-examination must be drafted for the ground rules hearing. The ground rules hearing in the Crown Court is intended to plan the parameters, nature and length of questioning of the witness. In instances where the witness says 77 [2009] EWCA Crim 365. 78 n 75 above. 79 Section 28 (6) (a-b) states that the court will direct that further cross-examination and/or re- examination may take place where the application arises from the party ‘having become aware, since the time when the original recording was made, of a matter which that party could not with reasonable diligence have ascertained by then’ or for any other reason it is in the interests of justice for such a direction to be made. something during pre-recorded cross-examination which is unexpected, or otherwise gives an answer which it would be plainly wrong to go unchallenged (for the purposes of how this evidence will appear when played to the jury weeks hence), there is a small degree of latitude for questions to be modified. However, the practice of the court imposing restrictions upon the scope and content of cross- examination of children and other vulnerable witnesses is well established.80 In practice, and almost without exception, the presumption is that video-recorded cross-examination questions will be asked verbatim as they are drafted.81 Therefore, while pre-trial recording of evidence offers significant potential benefits to individual witnesses and the truth finding process, there are undoubtedly evidential challenges, particularly where the investigative interview is used as evidence in chief, or where pre-recorded cross- examination is conducted at a much later date than the evidence in chief. The adversarial mode of trial magnifies these difficulties and challenges, although it is not yet possible to draw any generalisable conclusions about whether pre-recorded cross examination, following the enactment of section 28, prejudices the strength of the prosecution case in terms of juror perceptions and the evaluation of evidence at trial; or whether it will have any impact upon conviction rates. Indeed, although lawyers and legal scholars alike have speculated for some time about whether the recording of evidence in trials could disadvantage the prosecution case because it may appear too remote or ‘rehearsed’, the issue has to date received scant empirical attention.82 There are, however, a number of instructive national and international ‘mock trial’ studies which provide some further illumination 80 In R v Lubemba [2014] EWCA Crim 2064 at [45], the court observed: ‘It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right ‘to put one's case’ or previous inconsistent statements to a vulnerable witness. If there is a right to ‘put one's case’ (about which we have our doubts) it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidating or distressing a witness.’ 81 R v RL [2015] EWCA Crim 1215. 82 This is primarily a result of perceived difficulties inherent in undertaking such forms of research; in particular, the substantive content of the deliberations of real jurors is prohibited by the Contempt of Court Act 1981. Section 8 of the Act makes it a criminal offence to ‘obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations’. The Act does not, however, prevent all research about and with juries although its existence appears to have created confusion about what jury research can and cannot be conducted and has contributed to ‘an information vacuum’ about juries in this country: C. Thomas, Are juries fair? (London: MoJ, 2010). about juror perceptions of video testimony.83 A recent study in England and Wales assessed whether, and in what ways, perceptions of adult rape testimony are influenced by different modes of presentation.84 The study investigated the influence upon mock jurors of live-links; video-recorded evidence-in-chief followed by live-link cross-examination; and protective screens. It concluded that there was no clear or consistent impact as a result of these divergent presentation modes, and the researchers suggested that concerns over the use of special measures by adult rape complainants (at least in terms of juror influence) may be overstated.85 There are a number of psychological studies, however, which suggest that the use of pre-recorded evidence may have some bearing upon the perceived credibility of testimony when it affects the complainant’s emotional responses whilst giving evidence.86 In these studies, an emotive and visibly upset complainant was perceived to be more credible than complainants who appeared calm or relaxed. Witnesses may be less upset or nervous when giving evidence in settings outside a live courtroom: for example, if the investigative interview is used as evidence in chief, the witness may be more emotional and thereby appear more credible.87 Beyond the psychological literature, legal scholars have highlighted concerns that remote testimony may affect how jurors process demeanour evidence and make credibility assessments. Roth, for example, notes that the ‘editorialising’ of transmitted images (via alteration of the shot size or the camera’s location in relation to the witness) 83 N. Taylor and J. Joudo, The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making: an experimental study (Canberra: Australian Institute of Criminology, 2005). 84 L. Ellison and V. E. Munro, ‘A “special” delivery? Exploring the impact of screens, live-links and video-recorded evidence on Mock Juror deliberation in rape trials’ (2014) 23 Social and Legal Studies 3. 85 ibid. 86 G.C. Bollingmo, E.O. Wessel, D. E. Eilersten and S. Magnussen, ‘Credibility of the emotional witness: A study of ratings by police investigators’ (2008) 14 Psychology, Crime and Law 29; E. M .Wessel, G. C. Drevland, D. E. Eilersten and S. Magnussen, ‘Credibility of the emotional witness: A study by court judges’ (2006) 30 Law and Human Behavior 221. 87 Researchers have observed that this is generally reflective of societal expectations and beliefs, so that witnesses who do not show the emotional behaviour expected of them in a given situation may be assessed as lacking credibility: M.R. Rose, J. Nadler and J. Clark, ‘Appropriately upset? Emotion norms and perception of crime victims’ (2006) 30 Law and Human Behavior 203. There is no evidence to support the conclusion that increased nor decreased emotionality is an indicator of truthfulness, although professionals and lay persons may believe that it is, and often share the same misconceptions about how people behave when they are lying: A. Vrij, P. A. Granhag and S. Porter, ‘Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection’ (2010) 11 Psychological Science in the Public Interest 3. may impact upon perception of emotion and demeanour.88 Consequently, in some jurisdictions, the increasing prevalence of video conferencing has been accompanied by greater awareness of the requirement for training in how to interpret and mediate visual images transmitted by video links, particularly in respect of witness demeanour. In the US, immigration tribunals routinely use video conferencing and training has been introduced for immigration judges which emphasises aspects of credibility beyond demeanour, such as factual inconsistencies in the applicant’s testimony so that judges are taught to focus on the content of testimony rather than nonverbal cues.89 In summary, remote participation and the receipt of testimony via video link technology undoubtedly have associated advantages, including reducing the expenditure and disruption associated with the transportation of prisoners to and from court; as well as potentially improving victim and witness experiences of and participation in the trial process. Here, the utilisation of high quality technology is necessarily a precursor to effectively harnessing improvements in the conduct of digitised proceedings, and current policy initiatives appear to be cognisant of the requirement for investment in this regard. However, there remains a pressing need to assess the impact of remote proceedings upon participative status and communicative rituals, and to develop a coherent evidence base with which to inform future modernisation agendas. Concerns regarding the nature and degree of defendants’ participation that is substantively being enabled by live video links and the scope for adequate examination and cross-examination of witnesses should not be underplayed. The use of high-quality remote IT ought therefore to be complemented by sufficient provision for training of legal professionals in video mediated proceedings, in order to develop familiarity with new systems and digitised ways of working but also to build awareness of the impact of remote proceedings upon court user participation and mediated forms of communication. Unfortunately, such provisions are currently absent from government policy proposals for digital modernisation. Online convictions A consistent thread running historically through all proposals for court reform has been the requirement to improve efficiency across the court system; and concerns about efficiency remain at the core of the current modernisation programme. This is well exemplified by the government’s intention to create new systems for online convictions. The Criminal Justice and Courts Act 2015 introduced the Single Justice Procedure (SJP) which applies to cases involving adults charged with summary-only non-imprisonable offences. It enables such cases to be dealt with by a single magistrate sitting with a legal adviser on the papers without the attendance of either the prosecutor or 88 M. D. Roth, ‘Laissez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth’ (2000) 48 University of California Law Review 185. 89 I. V. Eagly, ‘Remote Adjudication in Immigration’ (2015) 109 Northwestern University Law Review 933. defendant.90 The defendant is instead able to engage with the court in writing and the case does not require to be heard in a traditional courtroom: the SJP allows one magistrate to consider a defendant’s plea and the evidence, including any mitigating circumstances, ‘on the papers’, alone and outside a physical courtroom. By channelling low-level, routine summary cases through the SJP, it is intended that magistrates and their legal advisors will have more time to focus on complex cases, while defendants are able to resolve their cases entirely online, faster and more conveniently, with the certainty of the penalty imposed and the ability to pay fines immediately online.91 Following an initial pilot phase in April 2015, use of the SJP was rolled out across England and Wales from March 2016. The Ministry of Justice has not been able to provide any quantification of the costs and benefits associated with the SJP,92 yet it nonetheless plans to fully digitise the process with implementation of the online system of convictions commencing in 2018. The Ministry of Justice proposes to test the system with a small number of summary, non-imprisonable offences in the initial phase of introducing the online conviction and fixed fine scheme (railway fare evasion; tram fare evasion; and possession of unlicensed rod and line): if this initial phase is ‘successful’, other offences, particularly certain road traffic offences, will then be brought into the system in future.93 While the new system for online convictions and fines is intended to benefit defendants by bringing about speedier case resolution, it is possible that the convenience of avoiding the ‘formal’ court process altogether may lead a defendant to admit to something for which he or she would otherwise have a defence, thereby resulting in an increase in guilty pleas in online courts. It may be the case that some defendants are willing to make a false admission and accept a conviction in order to have the matter resolved quickly, and avoid the anxiety associated with attending court in person. There is also the associated issue of whether those individuals who plead guilty are indeed fully aware of, and understand, the serious and complex implications of a criminal conviction such as consequences for employment, foreign travel, and immigration status. The implications of a criminal conviction, in common with out of court disposals including cautions, are not well recognised by the public as a 90 Approximately 890,000 cases a year involve summary-only, non-imprisonable offences. 91 n 26 above. 92 Ministry of Justice, Impact Assessment: Online convictions/statutory fixed fine, at https://consult.justice.gov.uk/digital-communications/transforming-our-justice-system-assisted- digital/supporting_documents/onlineconvictioniaandeia.pdf (last accessed 5 January 2017). 93 At present, the traffic penalty tribunal (TPT) provides an online service for appeals against minor driving and parking offences. Service uptake is low, however, with only 0.5 per cent of those issued with Penalty Charge Notices (PCNs) appealing to the tribunal, although half of those who appeal have their fine overturned. It is likely that there are so few appeals because drivers are only required to pay half their fine if they settle a PCN within 14 days; which is an obvious disincentive to proceed with an appeal via the TPT. Fine tariffs continue to increase during the tribunal appeal process and so it is understandable that drivers prefer to accept the original PCN rather than risk a substantially higher fine if they are unsuccessful upon appeal. whole.94 Where it is known that a criminal record exists, this can act as a barrier to rehabilitation and/or reintegration and may prevent opportunities for employment, or for example, the ability to obtain a tenancy or to purchase insurance.95 A further difficulty is that unrepresented defendants often do not realise the strength (or weaknesses) of their case,96 and can feel pressurised into pleading guilty despite possessing a legitimate defence.97 The online plea system which currently exists for the prosecution of fare evasion provides a useful illustration of how these dynamics can be manifested. All those prosecuted for fare evasion (railway, bus, etc.) are encouraged to enter pleas either by post or online, and cases are heard in the defendant’s absence in the magistrates' court by a single magistrate sitting in private. The fines associated with a guilty plea can be high, and it is not clear that defendants who do plead guilty are fully aware of and understand the consequences to them which can far exceed the seriousness of the offence committed - in terms of costs, or with regard to the criminal record which is inseparably attached to it. Here it is worth observing that, at present, out of court settlements can be reached in cases of fare avoidance, enabling more affluent defendants to avoid prosecution in the magistrates’ court. 94 J. Donoghue, ‘Reforming the Role of Magistrates: Implications for Summary Justice in England and Wales’ (2014) 77 MLR 928. 95 In England and Wales, the maintenance of criminal records is a police, rather than a judicial function and criminal records are stored on the Police National Computer (PNC). In Chief Constable of Humberside v Information Commissioner [2009] EWCA Civ 1079, the Court of Appeal made it clear that the law permits the police to keep all convictions on the PNC forever, and as a result, there is currently no opportunity for a criminal record to be permanently deleted from the police database. Although recent changes have extended the scope of the Rehabilitation of Offenders Act 1974 so that prison sentences of up to and including four years in length can become spent (thereby protecting an offender from disclosure), the reality of English law today presents a very complex picture: R. (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3; C v Chief Constable of Greater Manchester [2010] EWHC 1601 (Admin). The courts have no power to shorten the sentence/rehabilitation periods under the 1974 Act and many offenders continue to be forced to disclose their convictions before they can obtain employment. Evidence suggests that the current regime of disclosures and criminal record checks would benefit from further reform; in particular, to reduce the number of jobs for which checks are made, and to reduce the number of unlawful or erroneous checks being made: N. Padfield, ‘Judicial Rehabilitation? A view from England’ (2011) 3 European Journal of Probation 36. 96 N. Padfield, ‘The right to self-representation in English criminal law’ (2012) 83 Revue internationale de droit penal 357. 97 P. Gibbs, Justice Denied: Unrepresented Defendants in the Criminal Courts (London: Transform Justice, 2016). The government’s intended transference of a range of summary justice cases from magistrates’ courts to systems for online conviction also does not, in itself, do anything to address the existing underlying problems which defendants encounter when they appear unrepresented in court. The general absence of legal aid means that the majority of defendants in magistrates’ courts do not currently obtain legal advice, which in many instances results in defendants representing themselves; a high rate of guilty pleas; and a low number of appeals against sentence. According to CPS data for 2015-16, the rate of guilty pleas in the magistrates’ courts was 70 per cent,98 for which the conviction ratio was 84 per cent in the latest year.99 Moreover, there has been a steady decline in the number of appeals against magistrates’ court sentences: from 0.7 per cent in 1992, to 0.37 per cent in 2016.100 As previously observed, few defendants are well equipped to defend themselves (even in circumstances where they have a good case to make): in these instances there is an obvious incentive to plead guilty in order to avoid trial costs and unrepresented defendants are concomitantly less likely to seek to challenge any conviction by way of appeal against sentence as a result of legal and financial barriers. These issues are further compounded by financial pressures upon the CPS to reduce the number of hearings, which leads to lower-level charges being brought, for example in assault cases, in order to obtain a guilty plea and avoid a more costly trial at Crown Court.101 Indeed, legal scholars have begun to speculate that the pre-existing priorities underlying the justice system such as efficiency, crime control and the minimisation of false negatives may serve to intensify disadvantage in online criminal proceedings, particularly given the ‘uneven, unsystematic manner’ in which digital justice has been developed and deployed.102 The creation of online systems for summary offences provides few safeguards to mitigate against these problems and may in fact serve only to further entrench existing difficulties facing those without access to adequate legal advice, amplifying the scope for injustice. Given the scope for defendants to be placed at a disadvantage by virtue of new online plea and convictions processes, not to mention the potential risk of miscarriages of justice, it is crucial that online systems are underpinned by proper procedural safeguards and accompanying guidance which clearly explains the processes to be followed by participants, as well as the direct and indirect consequences of a guilty plea. The government’s proposals for its system of online convictions states 98 Her Majesty’s Crown Prosecution Service, ‘Key Performance Measures, Quarter 4 2015/16’ (HMCPS, 2016), at: https://www.cps.gov.uk/publications/performance/key_measures/key_measures_Q4_2015_16.pdf (last accessed 3 January 2017). 99 Ministry of Justice, ‘Criminal Justice Statistics, Quarterly Update to June 2016’, (MoJ, 2016), at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/570022/criminal-justice- statistics-quarterly-update-to-june-2016.pdf (last accessed 3 January 2017) 100 There has also been a 21 per cent fall in sentence appeals to the Court of Appeal in the last four years. 101 Marsh, n 37 above. 102 A. Roth, ‘Trial by Machine’ (2016) 104 Georgetown Law Journal 1245. that ‘users will be advised to seek advice from Citizens Advice or a legal provider’ and indicates that guidance on how to use the system would be provided by a telephone call centre, at the initiation of the defendant.103 However, at a minimum, it ought to be an essential component of any new system for online convictions that the implications of a guilty plea, as well as further legal advice on the process of determining guilt/innocence and how to defend an action, are inculcated via substantive website content. The government’s proposed safeguards are insufficient: defendants may misunderstand the strength or otherwise of their case (for example by confusing mitigation with a defence) or they may not take the time to seek advice from the telephone service to clarify matters related to what is required in their case. 104 Judicial involvement in the design of new online convictions systems, or indeed the provision for mechanisms of judicial oversight of these systems, are in isolation ultimately insufficient to address the complex dimensions of the operation of new technologies and their use by, and on, court participants deprived of adequate legal advice. Access to courts and digital services The opportunity for citizens to have effective access to justice in order to determine and vindicate their rights is a fundamental principle of a properly functioning justice system committed to the rule of law, which was a point well-articulated more than three decades ago by Lord Diplock in the much cited Bremer Vulcan decision.105 However, the principle of ‘local justice’, wherein it is intended that citizens residing within local communities have convenient access to courthouses in their locales, and that magistrates sitting in local courts ‘bring common sense and knowledge of the locality and the local 103 Ministry of Justice, ‘Transforming our justice system: assisted digital strategy, automatic online conviction and statutory standard penalty, and panel composition in tribunals - Government response’ (London: MoJ, 2017) at [75]. 104 Here it is worth observing that the government has also intimated its ambition to move all plea hearings online, with a recent publication stating: ‘We will enable defendants to indicate a plea online and enable allocation in all triable either-way cases to be dealt with in writing (preferably online), allowing for early triage of cases through the system without the need for unnecessary in-court hearings’; n 92 above, 41. Defendants will be encouraged to utilise the online plea system, yet there is no accompanying provision to ensure the availability of appropriate legal advice at this stage of proceedings, which ought to form an essential adjunct to proposals for system reform in order to mitigate potential disadvantage to defendants. 105 Lord Diplock observed that: ‘Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy which he claims to be entitled to in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant’: Bremer Vulcan Schiffbau und Maschinenfabrik v South India Shipping Corp. Ltd [1981] AC 909, 979. community to the criminal justice process,’106 has been eroded by the closure of many local courthouses and the overall diminution of the courts and tribunals estate in England and Wales. This has resulted in the physical inaccessibility of courts by virtue of the increasing distances court users (including victims, witnesses, defendants and court professionals) must travel to attend court, particularly for those living in remote areas or who find the cost of travel burdensome. In rural areas, the majority of defendants are reliant upon public transport which does not always operate at appropriate times to enable them to attend alternative courts following local court closures.107 The cost of travel (particularly high train fares), is also unaffordable to many defendants, especially those who are in receipt of state benefits, and can contribute to defendants failing to attend court.108 In other instances, language and the availability of adequate interpretive/translation services are barriers for court users for whom English is not their first language.109 Digital courts, forms of video-conferencing, virtual legal advice and online systems can therefore provide an opportunity to improve timely access to court proceedings,110 and may serve to ameliorate the national dislocation between courts and the communities that they serve through improved provision of (national and locally-based) online services. Nevertheless, access to justice ought not to be superficially characterised as a matter of improved physical access to local buildings, or indeed the convenience of participation in digital court processes such as video link testimony, or online systems for conviction/fine payment. Taken in isolation, digital architectural or physical alterations to the traditional courtroom environment will not be sufficient to provide the full range of associated benefits to victims, witnesses, defendants, and litigants without a recognition that IT will only be able to facilitate proper participation at court (and its associated legal processes) when it is accompanied by a broader commitment to securing adequate access to legal representation and advice. In this regard, the advantages associated with digital justice are heavily circumscribed by the presence of an encroaching political landscape in which reforms to legal aid 106 M. Davies, ‘A new training initiative for the lay magistracy in England and Wales – a further step towards professionalisation?’ (2005) 12 Int’l J Legal Prof 93. 107 M. Rogers, ‘Senior magistrate criticises court closures in Wales’ (Solicitors’ Journal, 2 December 2016), at https://www.solicitorsjournal.com/news/201612/senior-magistrate-criticises-court-closures- wales (last accessed 5 December 2016). 108 Difficulties in travelling to court has also impacted upon judges and magistrates, with a number of magistrates (who serve in a voluntary capacity and are unpaid) resigning as a result of local courthouse closures: J. Halliday, ‘Magistrates quitting in “considerable” numbers over court closures’ (Guardian, 29 November 2016), at https://www.theguardian.com/law/2016/nov/29/magistrates- quitting-uk-court-closures-cost-cutting (last accessed 5 December 2016) 109 In Wales, for example, widespread closures have meant that court users in rural communities, where Welsh is the first spoken language, are compelled to attend court in predominantly English- speaking areas, running the risk of disadvantage. 110 J. Bailey, J. Burkell and G. Reynolds, ‘Access to Justice for All: Towards an “Expansive Vision” of Justice and Technology’ (2013) 31 Windsor Yearbook of Access to Justice 181, 202. have resulted in serious impediments to obtaining legal representation as well as the absence of satisfactory structures and processes for communicating advice, guidance and support to those facing the prospect of legal proceedings against them. Much has been written about the pernicious adverse effects of changes to legal aid in England and Wales which have occurred by virtue of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) 2012.111 Changes to legal aid eligibility rules means that the majority of cases involving housing, welfare, debt, immigration, medical negligence and family law no longer qualify for legal assistance. However, LASPO also introduced the Exceptional Case Funding (ECF) scheme, which was intended to act as a ‘safety net’ to ensure that funding would still be available if needed to ensure that an individual’s rights would not be breached. One particular restriction brought in by LASPO was to remove article 8 (the protection of private and family life) matters from the scope of mainstream legal aid so that immigration proceedings would require ECF if legal aid was to be granted.112 In R (on the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors,113 the Court of Appeal upheld Collins J’s finding that that the ECF scheme had been operated unlawfully and that ECF can be available for immigration matters.114 The Court held that the guidance issued by the Lord Chancellor on eligibility for legal aid was defective as it set too high a threshold when stating that the test was whether the withholding of legal aid would make assertion of the claim practically impossible or lead to obvious unfairness. While the judgment in Gudanaviciene appeared to provide redress for some significant problems associated with the ECF scheme, it did not in fact address the wider vitiating features of the scheme, in particular its inaccessibility to litigants in person (LiPs) and the lack of any adequate financial incentive to encourage solicitors to participate in it. These matters were subsequently considered in a systemic challenge against the ECF scheme, in R. (on the application of S) v Director of Legal Aid Casework.115 The Director of Legal Aid Casework and the Lord Chancellor appealed against a declaration,116 that the ECF scheme for the administration of legal aid pursuant to section 10 of LASPO was unlawful in that it gave rise to an unacceptable risk that an individual would not be able to obtain legal aid. The Court of Appeal found that the ECF regime for legal aid is lawful, and in the leading judgment of Laws LJ, his Lordship made clear that Gudanaviciene should be clearly 111 A recent study found that basic advice cases (civil legal help) have dropped by 75 per cent since April 2013: L. Logan Green and J. Sandbach, Justice in Freefall (London: Legal Action Group, 2016). See also, Amnesty International, The Impact of Legal Aid Cuts in England on Access to Justice (London: Amnesty International, 2016); S. Hynes and J. Robins, The Justice Gap: Whatever Happened to Legal Aid? (London: Legal Action Group, 2009). 112 The Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) at [60]. 113 [2014] EWCA Civ 1622. 114 Gudanaviciene and Ors v Director of Legal Aid Casework and Anor [2014] EWHC 1840 (Admin). 115 [2016] EWCA Civ 464. 116 R. (on the application of S) v Director of Legal Aid Casework [2015] EWHC 1965 (Admin). differentiated from the present case because Gudanaviciene was a case in which the claims were by individual prospective litigants and the facts of the individual cases were considered and decided. Laws LJ noted that: ‘In this appeal the judicial review is generic: the assault is upon the ECF scheme as a whole. It therefore requires proof of a systematic failure; and this is not, certainly not necessarily, to be equated with proof of a series of individual failures.’117 Although the Court of Appeal allowed the appeal on the basis that there was not proof of systematic failure, their Lordships nonetheless reflected that there had clearly been substantial difficulties with the scheme, and there was room for improvement, particularly concerning lay applicants. Notably, Briggs LJ, dissenting, observed that the combination of an application process inaccessible to most LiPs and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, rendered the defects in the scheme systematic, inherent and unfair.118 Although many solicitors worked pro bono to assist people in obtaining the funding, this did not rescue the scheme from inherent unlawfulness because the number of solicitors undertaking pro bono work was ‘insufficient to meet anything approaching the demand for their services’ and as a consequence, there are ‘a substantial class of deserving applicants who can neither obtain ECF on their own, nor obtain the legal assistance necessary for them to do so’.119 The issues raised by Briggs LJ, particularly in relation to the position of LiPs, reinforce the tenuous and fundamentally unsatisfactory status of the depleted availability of legal aid. Access to justice is of course an indivisible right, in that it is one that applies as much to defendants as it does to victims and claimants; and a body of evidence now exists, from empirical studies as well as case judgments, illustrating the consequences of citizens having no access to legal advocacy.120 A lack of eligibility for legal aid and an inability to afford counsel (together with a perception that lawyers increase the expense and complexity of resolving cases and litigants’ belief that they can adequately represent themselves) has resulted in more cases involving self-represented litigants, many of whom are vulnerable and have been forced into a position where they must act on their own behalf, contributing to the overall detriment of the administration of justice. Cases involving litigants without representation take longer and can be more costly to resolve, with poorer outcomes for those without legal representation.121 The impact of LASPO, together with substantial increases in court fees, has 117 At [11]. 118 At [75], [78], [83-84]. 119 At [84]. 120 Lewis, n 67 above. 121 n 97 above; A. E. Bottoms and J. D. McClean, Defendants in the Criminal Process (London: Routledge, 2013); R. Birnbaum and N. Bala, ‘Views of Ontario Lawyers on Family Litigants without Representation’ (2012) 63 University of New Brunswick Law Journal 99; K. Souza and V. Kemp, Study of Defendants in Magistrates’ Courts (London: MoJ, 2009); H. Astor, ‘The unrepresented defendant revisited: A consideration of the role of the clerk in magistrates' courts’ (1986) 13 Journal of Law and Society 225. resulted in a form of participant legal disenfranchisement through lack of access to legal representation.122 Although advances in technology have improved the capture, preservation, and dissemination of legal knowledge and have resulted in greater access to online legal resources (including the public availability of online judgments and case information); as well as increasing scope for client choice and reducing cost, it would be unwise to assume that such benefits accrue universally. Indeed, the remarks of the dissenting judge in R. (on the application of S), are instructive in highlighting the fundamental inadequacy of both telephone and website information services for LiPs attempting to access legal aid.123 Furthermore, of particular salience is the type of cases and categories of advice services that providers select to make digitally available. Although increasing the availability of legal information and advice, and broadening the remit of its distribution through technology, ought to form an essential component of any serious ambition to substantively improve access to justice in the digital age, implementing commoditised (private) online services for some of the most common legal problems in the areas of welfare, debt, housing, immigration and family law, which are mostly ineligible for legal aid, will be challenging. At present, the general absence of standardised online services for these types of cases can be explained in part because they are more difficult to design and engineer but also because there is less of a paying market for them, particularly given that parties to such actions are often in financially precarious and socially vulnerable positions.124 While much work is currently being undertaken to develop new legal tools and digital court services, lawyers’ participation in providing digital services are constrained by the marketised nature of the legal profession and lawyers’ defence of their existing business model and associated profit margins.125 In addition, government has failed to support capital investment in the development of standardised, 122 It should be noted that the status of access to justice is also an area of significant contention across other jurisdictions including Australia, the US, and Canada, with many international debates mirroring those that exist at national level within the UK. For further discussion, see R. W. Staud, ‘All the Wild Possibilities: Technology That Attacks Barriers to Access to Justice’ (2009) 42 Loyola of Los Angeles Law Review 1117; D. Rhode, Access to Justice (New York: Oxford University Press, 2004); J. Baliley and J. Burkell, ‘Implementing Technology in the Justice Sector: A Canadian Perspective’ (2015) 11 Canadian Journal of Law and Technology 2; A. Willems, ‘The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems’ (2014) 17 New Criminal Law Review 184; A. Rebuli, ‘The cost of cutting legal assistance funding’ (2015) 37 Bulletin (Law Society of South Australia) 20. 123 Briggs LJ observed at [77]: ‘Although there is limited guidance for LiPs on a website, and on a telephone helpline, it is demonstrably so inadequate for that purpose that only one LiP applicant has ever navigated the scheme successfully.’ 124 Report of the Low Commission on the future of advice and legal support, Tackling the Advice Deficit: A strategy for access to advice and legal support on social welfare law in England and Wales (London: Legal Action Group, 2014). 125 Lewis, n 67 above. commoditised online services, especially high volume, high demand cases where the participant population is generally economically marginal and disadvantaged. Instead, government attention is focussed (narrowly) upon investment in digital court architecture and technologies which will increase efficiency. The paucity of a clear and strategic approach to bolster access to justice evident in the government’s current reform agenda suggests a tokenistic approach to improving participation, whereby the introduction of technological ‘tools’ to enhance participation and equity in the justice process are utilised for their symbolic and communicative properties to suggest a representative and fully inclusive process and to provide legitimacy to new supposedly ‘open justice’ oriented initiatives. Digital innovations, when designed and engineered appropriately, have the potential to harness and capture gains in advancing access to justice objectives but they are ultimately reliant upon the existence of a rudimentary (political) framework for the provision of basic legal representation and services. CONCLUSION Visions of ‘digital justice’ and ‘virtual courts’ have been held up as a utopia for technology and law, wherein the benefits of efficiency, accessibility and the timely resolution of disputes are typically associated.126 Given that confidence in the legal system is heavily reliant upon a proximate relationship between crime and punishment (as well as the timely the resolution of civil disputes more generally), improving the efficiency of the courts is of significance not simply as a matter of convenience, rather it holds wider social benefits in terms of enhancing public legitimacy and confidence in the delivery of justice. Delivering justice at reasonable speed is, therefore, quite rightly a legitimate concern for the executive, judiciary and broader public. Moreover, it is self-evident that an inefficient, overburdened and sometimes ‘chaotic’ courts system,127 will be unable to function optimally in delivering justice processes and outcomes to court users. Yet determinations of efficient court productivity are not being evaluated alongside a consideration of substantive values including, most notably, participation and fairness. Awareness of the type and quality of (especially defendant) participation in digital processes is absent from the discourse of modernisation: to date, government research on new court technologies have primarily measured the ‘good result efficacy’ of processes (in terms of cost and speed), and not the broader process outcome(s) in relation to access to justice and equal treatment before the law. In the course of this article, I have sought to demonstrate the ways in which the appeal of digital justice and court technologies for policy-makers emanates primarily from the superficial depictment of efficiency and the speedier resolution of disputes in the context of greater economic rationalisation, rather than from their instrumental capacity to enhance the quality of court user participation or improve access to justice for court users. The new 126 R. Mohr and F. Contini, ‘Reassembling the Legal: “The Wonders of Modern Science” in Court- Related Proceedings’ (2011) 20 Griffith Law Review 994. 127 J. Jacobson, G. Hunter and A. Kirby, Structured Mayhem: Personal Experiences of the Crown Court (London: ICPR, 2015) technologies, digital processes and tools brought into being by recent reforms are concerned, above all else, with achieving reductions in expenditure and meeting fiscal imperatives. The use of court technologies has many associated advantages and there is the potential for new digital innovations to support the administration of justice, and elevate the quality of justice. Although improving the quality of courtroom technology is a necessary precursor to enhancing digital practices, here the more pertinent concern must be with coming to understand the conditions under which remote technology can function to serve the interests of justice (both fairness and efficiency) by ensuring that digital procedures are designed to facilitate effective participation in courtroom communication and interactive social rituals. In a digital world, technology creates new possibilities and challenges for the dynamics of court user participation in ensuring that access to and engagement with digitised processes is systematically enhanced, rather than diminished. At present, the pace of technological change and the growth of court technologies both nationally and internationally has not been accompanied by sufficient scrutiny of technology’s impact upon court user participation or case outcomes or indeed any rigorous analysis of the normative or social consequences of these increasingly rapidly enacted series of legal reforms. Our grasp of the ethical and moral questions concerning the use of IT lags significantly behind the burgeoning technological advances. Digital justice means (and requires) a cultural shift in how we approach the use of technology in courts: this necessitates a reorientation of current policy approaches to ensure that proper attention is paid to developing greater knowledge about, and training in, the participative and communicative dynamics of courtroom IT to inform the design and implementation of future reforms. In addition, a focus upon the participative status of court users must be accompanied by a recognition that (despite the paradoxical policy emphasis upon technology as the gateway to improved access) technology cannot, in isolation, adequately address such a complex issue as access to justice when policy frameworks fail to incorporate measures to explicitly counteract the erosion of legal aid. Simply moving services online may in fact be counter-productive and serve to further entrench access to justice impediments when existing limitations are not factored in. Many – although by no means all – users of new court technologies, will be disadvantaged and disempowered groups who possess little by way of access to legal advice/services. In this respect, the government’s current approach to digital modernisation fails to take adequate account of the availability of legal services within and outside of the courtroom as an essential condition for realising improved participation and outcomes in court through digital innovation. Government has simultaneously withdrawn funding for legal aid while closing local courthouses and eroding local justice, while anticipating that digital technologies will provide the ‘transformative’ panacea for improving efficiency and access to justice that will ‘liberate tens of thousands of individuals from injustice’.128 Digital processes do not in themselves obstruct or hinder the realisation of access to justice objectives: digitisation is merely a process tool and it is in the context, design, and management of new technologies where the scope for process values to be compromised arises. In particular, reform agendas ought to take account of how technology manifests 128 Speaking at the Legatum Institute in June 2015, the previous Justice Secretary Michael Gove. transformations in communicative dynamics, and perhaps more crucially, policy makers must consider how the institutional landscape in which that technology is deployed may diminish or preclude the attainment of enhanced (digital) justice. As Widdison reflected some two decades ago: ‘While it is generally accepted that IT is morally neutral, our management, mismanagement or non-management of it is not.’129 Presently, the discernible potential embodied within new digital innovations is hampered by the lack of a facilitating institutional landscape. Changes to legal aid in England and Wales amount to no less than the systematic destruction of access to justice.130 A failure to conceptualise digital justice within this broader paradigm will result in the attenuation of central principles of the legal system, including, counter-intuitively to prevailing policy narratives, fair participation and access to justice. This is the challenge facing court reformers; in the absence of a policy framework designed to promote greater participation and access to legal aid, the promise of digital justice will remain unrealised. 129 n 1 above, 163. 130 The Crisis in the Justice System in England and Wales: The Bach Commission on Access to Justice, Interim Report (London: Fabian Society, 2016); P. Sanderson and H. Sommerlad, ‘Colonizing law for the poor: reconfiguring legal advice in the new regulatory state’ in V. Bryson and P. Fisher (eds) Redefining Social Justice (Manchester: Manchester University Press, 2011). 
work_vkqqlkep45aclerecimpzm6psu	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221728644 Params is empty 221728644 exception Params is empty 2021/04/06-03:20:25 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221728644 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:25 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_vlodqojgcndwnidve2jt67hama	----	S0892679420000386jrv 401..412 REVIEW ESSAY Freedom and Justice in Trade Governance Sarah C. Goff Consent and Trade: Trading Freely in a Global Market, Frank J. Garcia (Cambridge, U.K.: Cambridge University Press, ),  pp., cloth $., eBook $. On Trade Justice: A Philosophical Plea for a New Global Deal, Mathias Risse and Gabriel Wollner (Oxford: Oxford University Press, ),  pp., cloth $, eBook $.. I n December , the World Trade Organization’s (WTO) Appellate Body lost the quorum of three members that it needs in order to decide on appeals of dispute settlement panel rulings. The United States has repeatedly blocked the appointment of new judges to the Appellate Body, and two of its existing members had reached the end of their four-year terms. Although interim arrange- ments have forestalled a crisis, the future of the WTO’s dispute settlement process remains uncertain. So does the future of the WTO itself. Two recent books in political theory consider the future of trade governance. Consent and Trade proposes reforms to preferential and regional trade agreements so that states can consent more freely to their terms. On Trade Justice proposes reforms to the WTO, arguing that multilateralism is the necessary foundation for a “new global deal” on trade. Frank J. Garcia, the author of Consent and Trade, and Mathias Risse and Gabriel Wollner, the coauthors of On Trade Justice, have made substantial contributions to liberal theories of global justice and trade. These books present the authors’ latest arguments about the distinctive principles that should apply to both trade governance and trade itself. Ethics & International Affairs, , no.  (), pp. –. ©  Carnegie Council for Ethics in International Affairs doi:./S 401 https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core Trade and Trade Governance What is trade? As Garcia describes it, trade consists in “voluntary, bargained-for exchanges of value among persons for mutual economic benefit” (p. ). According to Risse and Wollner, “‘Trade’ covers everything from primordial exchanges across village lines and one-time interactions among strangers to mod- ern highly structured exchanges governed by domestic and international law, from personal exchanges to refined supply chains sustained by fleets of container ships” (p. ). Normative arguments are based on principles. There are several methods of inquiry into principles for trade. Some philosophers argue that principles of moral cosmopolitanism apply to trade and to other global phenomena, such as migration and anthropogenic climate change. This method emphasizes trade’s commonalities with these other subjects. Several theorists have extended John Rawls’s liberal theory of social justice into a theory of global justice. According to Rawls, justice governs the rules and institutions that together constitute a holis- tic system, or a “basic structure.” If there is a global system that is comparable to a society’s basic structure, global justice should govern the global system. This method describes trade as one part of a global system, which is itself governed by justice. On Trade Justice and Consent and Trade follow a different method. They inquire into distinctive principles for trade, using descriptions of trade that emphasize its specific features. Risse and Wollner ask, “What, if anything, is it about trade that generates obligations, and what is the nature of these obliga- tions?” (p. ). Garcia states his hope “that if we can identify what is essential to trade as trade, we can better understand how to facilitate, protect and enhance it, and thereby better understand how to promote a flourishing system of global economic relationships” (pp. –). Neither book is concerned solely with “trade” as such, following its definition as economic exchanges that can cross borders. Consent and Trade’s subjects are trade and trade agreements, focusing on preferential and regional trade agreements. On Trade Justice’s subjects are trade and the trade regime. Risse and Wollner refer to a general definition of a “regime,” which consists in “sets of implicit or explicit prin- ciples, norms, rules and decision-making procedures around which expectations converge in a given area of international relations.” Relevant organizations for the trade regime include the WTO, regional and preferential trade agreements, 402 Sarah C. Goff https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core cartels, fair trade organizations, civil society groups, and many additional interna- tional organizations (pp. –). Consent and Trade and On Trade Justice propose principles that should apply to both trade and trade governance. Garcia argues that a principle of consent should govern economic exchanges and trade agreements. Risse and Wollner argue that a principle of nonexploitation should govern the behavior of market actors as they cooperate in trade, and it should govern the trade regime itself. However, trade and trade governance are different forms of cooperation, with different agents and different interests at stake. I will argue that consent and nonexploitation are less compelling as principles for trade governance than for trade itself. Both books understate the extent of conflict between their principles for trade gover- nance and liberal justice. Consent to Trade and to Trade Agreements According to Consent and Trade, economic exchanges must secure their partici- pants’ full consent to be worthy of the term “trade.” Otherwise, exchanges may be predatory, coercive, or exploitative. Human beings generally know the differ- ence between trade and these other types of exchange from their own experiences with consensual and nonconsensual interpersonal interactions. Garcia argues that we can use this knowledge to understand why a state’s consent is important in trade agreements. He asks: “So, what has happened such that in the aggregate we behave as if we don’t know what trade really is, when in our daily lives we do?” (p. ). Consent and Trade’s argument relies primarily upon its analogy between eco- nomic exchanges and trade agreements. Respect for participants’ consent is important in economic exchanges, and economic exchanges are similar to trade agreements. Therefore, trade agreements should respect the consent of their par- ticipants, namely, the state signatories. I will describe two of the most interesting ideas in Consent and Trade that are presented through this analogy. Garcia devel- ops these two ideas about consent in economic exchanges and argues for their rel- evance in trade agreements. The first idea is that the participants must consent to an exchange in order for it to be ethically acceptable. This is a very plausible idea. However, it seems clear to me that participants’ consent is only one relevant consideration for the ethics of economic exchanges. Does the exchange set back a participant’s objectively freedom and justice in trade governance 403 https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core important interests? Is the person degraded by his or her participation? What is the impact of the exchange on third parties, who could experience harms or other dislocations, and on the interests of society as a whole? If participants’ con- sent is only one consideration in the context of trade, by analogy state consent should be only one consideration in the context of a trade agreement. Consent and Trade evaluates two trade agreements involving the United States to determine whether its trading partners freely consented to the terms. It com- pares CAFTA-DR (the Central America–Dominican Republic Free Trade Agreement) to KORUS (the United States–Korea Free Trade Agreement). Garcia argues that the trading partners of the United States did not fully consent in both agreements because they lacked “the power of refusal,” either for economic reasons or for reasons of national security. Garcia’s analysis builds upon philo- sophical studies of coercion, domination, and exploitation in agreements between persons. Consent and Trade investigates states’ political and economic conditions, in order to identify the constraints on their choices during the trade negotiations. Analogies are useful when they identify similarities between subjects, showing how our existing knowledge about one subject can teach us about another. But, in my view, Consent and Trade’s analogy can be misleading. Garcia proposes that U.S. trading partners, if they had enjoyed alternative options, would have pressed the United States for concessions. But these states might have used their bargaining power to press for concessions the United States never would have accepted. Instead of obtaining better terms, these states might have pro- longed trade negotiations for an indefinite period (as is currently the case in the WTO’s Doha Round, or Doha Development Agenda). My point is not merely that the counterfactual is unknown. An individual often has a moral right to bar- gain imprudently on his or her own behalf in an economic exchange. By contrast, a state lacks the moral right to bargain imprudently during trade negotiations, because doing so neglects the state’s duties of liberal justice to its citizens. Garcia acknowledges that there are cases without “easy answers” about whether and how to reform trade agreements to better respect states’ consent. For instance, he asks: “Is the domestic distribution of gains from trade so skewed, or the domes- tic regime so non-representative, that even a ‘fairer’ bargain for the state as a whole is not likely to lead to fairer outcomes for its citizens?” (p. ). I suspect such cases are common. Later in Consent and Trade, Garcia argues that trade agree- ments should have specific provisions for state signatories to address the negative consequences from increased trade flows. Trade agreements should have 404 Sarah C. Goff https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core provisions requiring states to fulfill “the domestic social contract,” such as requir- ing financial support for displaced workers (pp. –). I fully endorse this pro- posal. However, it seems to me that Garcia does not fully engage with the proposal’s implications for the broader argument of his book. The proposal implies that states generally should have less freedom—not more—to shape their trade agreements, in order for their participation in these agreements to actu- ally benefit their citizens. A second idea presented by Garcia is that it can be desirable for courts to inter- vene in significantly unequal contracts when the weaker party may not have fully consented. Garcia argues for the relevance of “adhesion contracts” in the context of trade agreements. Adhesion contracts are “contracts with commercial parties or manufacturers who possess greater bargaining power, and which are presented in a ‘take it or leave it’ manner.” In contract law, a court can determine that certain provisions of a contract are inappropriate to enforce. Similarly, a trade agreement could be reviewed to determine if its provisions are unfair, in the course of a com- plaints and appeals process. Garcia cautiously considers whether an appeals court could amend or refuse to enforce unfair provisions of a trade agreement (pp. – ). It is an interesting proposal that trade agreements could be written or inter- preted to include such regulatory authority for the courts. However, there are two relevant differences between trade and trade agree- ments. A domestic court may have reasons to avoid making public institutions complicit in the private violation of consent by market actors. But an appeals court lacks an analogous reason to suspend its enforcement of a trade agreement. A domestic court may decline to enforce a contract’s unfair provisions in the hope that the parties will cooperate on fairer terms. But in a trade agreement, the par- ticipants are not the most vulnerable parties with interests at stake. A state might file a complaint against a trading partner with the aim to improve its status as a negotiating partner, for its benefit in future trade agreements. If the state’s initia- tive backfires, however, its vulnerable citizens will suffer economic losses from restricted trade with their state’s trading partner. In my view, Consent and Trade understates the potential for tensions between its principle of respect for state consent in trade agreements and liberal justice. States often engage in imprudent negotiating behavior and fail to pursue trade agreements that would have a positive impact on social justice. There is limited value in a state’s “power of refusal” to a trade agreement that would benefit its cit- izens economically and provide other goods of justice. It is the state’s duty—rather freedom and justice in trade governance 405 https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core than the exercise of its freedom—to consent to trade agreements that would help it to realize justice for its citizens. Nonexploitation in Trade and in the Trade Regime On Trade Justice describes trade and the trade regime as two different forms of cooperation. Trade is the exchange of goods and services, which makes the agents better off in a material sense. The trade regime is cooperative governance about trade. When market actors trade, their exchanges are “subject” to the trade regime’s standards, rules, and norms. Risse and Wollner argue that this subjection is a “ground of justice.” The idea of subjection explains why their argument is for trade justice. It also explains why trade justice applies to both forms of coopera- tion, requiring nonexploitation in trade and nonexploitation in the trade regime. There are many ideas about exploitation and why it is wrong. Taking a plu- ralist and ecumenical approach, Risse and Wollner offer a hybrid account that draws most heavily from the ideas they find most persuasive. A feature of their hybrid account is that each of its ideas asserts its relevance in a particular context. Thus, the meaning of exploitation depends on the context in which it takes place. Risse and Wollner’s generic idea of exploitation is “unfairness through power.” They refine this generic idea of exploitation into a more specific idea for the con- text of trade: “power-induced failure of reciprocity” (p. ). Exploitation in trade and exploitation in the trade regime have different meanings, because trade and trade governance are different contexts of cooperation. On Risse and Wollner’s argument, exploitation in trade is primarily a form of substantive unfairness. For instance, they argue that labor contracts are exploit- ative when workers’ incurred costs and contributions to the financial success of their firm are not reciprocated in their wages. By contrast, they argue that exploi- tation in the trade regime is primarily a procedural injustice. Developing countries are exploited in the trade regime when they make policy concessions and comply with WTO rules, without full reciprocation from more powerful WTO member states. In Risse and Wollner’s reflections about how the WTO could be nonexploita- tive, they take inspiration from proposals for the New International Economic Order in the s. On Trade Justice declines to speculate about whether this par- ticular institutional design was ever feasible. The history of its failure simply high- lights the missed opportunities for an alternative trade regime that would provide 406 Sarah C. Goff https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core reciprocity and thus greater gains for developing countries. Other commentators have argued that procedural fairness in the WTO would have a beneficial impact on trade flows to developing countries. But there is reason for doubt. The WTO is procedurally fair in a formal sense because it requires a consensus among all  member states to reach an agreement to liberalize trade. As Risse and Wollner acknowledge, developing countries have made use of the consensus rule and their growing power by blocking potential WTO agreements (p. ). In my view, the trade regime’s fundamental problem is not the lack of political will to cooperate on reciprocal terms. Its fundamental problem is that many states, both rich and poor, no longer seem persuaded that cooperation on trade gover- nance provides worthwhile benefits. The United States has imposed trade restric- tions on China in retaliation for various grievances about China’s trading practices. The United Kingdom’s political leadership claims that it is acceptable for the Brexit transition period to end without a trade deal in place with the European Union. I write this in summer , in the early stages of the global eco- nomic catastrophe resulting from the COVID- pandemic. States should be tak- ing a greater interest in trade governance to manage global supply chains for medical equipment and other essential goods. In domestic social policy and in trade governance, states should pursue the protection of public health and the eco- nomic benefits (among other goods) that they need in order to satisfy liberal justice. Risse and Wollner argue that liberal justice requires respect for human rights, which in turn requires institutions to promote development in poor countries. Since trade can foster economic development, the trade regime has an important role in realizing liberal justice. In my view, the authors’ argument from liberal principles is more persuasive than their argument from the principle of nonex- ploitation in trade. Their principle of nonexploitation in trade is not equipped, for example, to criticize a trade regime with fully fair procedures, whose cooper- ation is so limited that the regime fails to significantly further any state’s interests and aims. Moreover, Risse and Wollner’s principle of nonexploitation in trade could be used to identify injustices in the trade regime that are actually benign. Imagine a state with growing economic and political power, which cooperates on trade governance in order to bring about rules that would extend its influence over poorer countries. If wealthy states were to use the WTO’s unfair procedures to thwart the state’s pursuits, this could meet Risse and Wollner’s definition of a “power-induced failure of reciprocity” in the trade regime. But I submit that this is freedom and justice in trade governance 407 https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core not an injustice “all things considered” or even ethically wrong at all, because extending influence over poor countries is not a valid aim for states’ cooperation on trade governance. Risse and Wollner argue that there is extensive overlap between liberal justice as it applies to the trade regime and nonexploitation in the trade regime. By this, they mean that liberal justice and trade justice independently produce similar evalua- tions of the trade regime’s deficiencies of justice. The overlap is not fully complete because, even in a world that fully satisfies liberal principles of global justice and social justice, there can be exploitation in trade. “The just world as discussed so far (without adding trade justice) might be highly unequal, with unequal bargaining power in trade negotiations reflecting differences in size and economic success of countries. Possibly, also, to build on this point about countries, workers for mul- tinational corporations might be exploited vis-à-vis workers in other countries. Worker X in country A might not be treated unjustly vis-à-vis worker Y in A but vis-à-vis Z in B who works for the same corporation” (p. ). Personally, I struggle to muster much ethical concern for these cases. I am distracted by the excluded cases of poor countries and precarious workers in our unjust world. On Trade Justice does not merely intend to provide insight into the residual cases, where liberal justice is silent. Nonexploitation in trade is a concept Risse and Wollner use to provide new insights into cases of trade and trade governance where liberal justice is unsatisfied. Liberal justice criticizes trade governance for its failure to do more to promote development. By contrast, nonexploitation in trade criticizes the procedural unfairness in the trade regime that may have produced this unsatisfactory outcome. In addition, exploited states can make claims against the trade regime about their unfair treatment. I appreciate Risse and Wollner’s conceptual innovation. However, I disagree with their assessment that their novel principle of nonexploitation in trade overlaps extensively with liberal justice. As I argued two paragraphs above, nonexploitation in trade does not condemn symmetrical failures of cooperation in trade governance and it may overidentify injustices in some cases of procedurally unfair treatment. For these reasons, I believe the principle of nonexploitation should be used only as a supplement to liberal justice. Exploitation in the trade regime is a morally concerning phenom- enon when states are unfairly thwarted by power in the pursuits they ought to have in this context. On Trade Justice is dense with provocative ideas and arguments that reward careful study. It is a pluralistic argument with threads that will engage political 408 Sarah C. Goff https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core philosophers, trade scholars, and business ethicists. Setting aside many of the book’s interesting discussions, I will conclude with my reservations about the coherence of trade justice. A crucial idea in trade justice is that trade is subject to the trade regime. By “subjection,” Risse and Wollner mean that the trade regime imposes constraints on agents’ options (p. ). I am not persuaded that the idea of subjection successfully joins together the book’s criticisms of exploita- tion in the trade regime and exploitation in trade. All market actors are “subject” to the trade regime. But the trade regime is not a determinative structure: the trade regime’s exploitation does not determine that economic exchanges take place on exploitative terms. Risse and Wollner explore a variety of different kinds of exploitative trade, including discretionary exploita- tion, structural exploitation, and group-based exploitation. Since there are differ- ent kinds of exploitative trade, there must be similarly variable links between exploitative trade and exploitation in the trade regime. Exploitation presupposes a power discrepancy between agents who are vulnerable and agents who are less vulnerable. There is a source of the power to exploit and there is the use of this power within the exploitative relationship. The trade regime’s exploitation could contribute to the power discrepancies between firms, workers, and consum- ers by restricting options for some market actors to a greater extent than for oth- ers. But On Trade Justice rightly notes that power discrepancies between market actors have many sources, including accidents and failures of liberal justice. So exploitation in the trade regime is not an especially important cause of exploita- tion in trade. Thus, in my view, On Trade Justice’s principles of nonexploitation in the trade regime and nonexploitation in trade are mutually separable. The first principle can criticize the use of power asymmetries to induce developing countries to make unreciprocated policy concessions. This argument stands, even if the developing countries’ concessions actually improve trade flows and increase their citizens’ share of the financial benefits from trade. The second principle can criticize a busi- ness’s decision to prematurely withdraw its foreign direct investment from a coun- try, for instance. This argument stands, even if the business’s decision and the workers’ options are primarily constrained by factors that are distinct from the trade regime’s standards, rules, and norms. Readers are free to be more persuaded by one argument than by the other. freedom and justice in trade governance 409 https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core Conclusion Consent and Trade and On Trade Justice share a method of inquiry into principles for trade and trade governance. Reading the two books together is rewarding because they have complementary strengths. Consent and Trade excels with its proposals for reforms to trade agreements. These interesting proposals are sup- ported by the author’s analysis and broad knowledge of law, economics, and pol- itics. On Trade Justice is philosophically rigorous, thorough in its argumentation, and conceptually innovative. The principle of respect for state consent and the principle of nonexploitation are closely related to the liberal principles of freedom and fairness in cooperation, respectively. Still, in my view, both books understate the extent of conflict between their principles for trade governance and liberal justice. I have argued that states do not always have good claims for their aims and interests to be treated respectfully and fairly in trade agreements and the trade regime. This is not a general argument against national self-determination or a general assessment that many states are not “well-ordered” societies. It is a spe- cific assessment that many states do not pursue morally appropriate aims through trade agreements and the trade regime. I have used liberal principles of justice to specify these morally obligatory aims, although other principles can serve this same purpose. Arguably, some states—as a result of their experiences of oppres- sion and exploitation—have lost interest in pursuing their morally obligatory aims in trade governance. Why should a state bother to pursue development in trade agreements, given its trade partners’ failures to make reasonable conces- sions? Why not obstruct cooperation in the WTO and engage in a symbolic per- formance of the political leader’s power for domestic and global audiences? The daunting task ahead for trade governance is the construction of better par- ticipants. States need to be persuaded of the valuable benefits from cooperative trade governance, such as economic gains and the protection of public health, which can be used to secure justice for their citizens. In democratic countries, cit- izens need to be assured they will benefit from their state’s participation in trade agreements, rather than suffering economic displacement or a loss in social sta- tus. States should participate in trade agreements and the trade regime in ways that help to secure social justice and global justice. These changes in trade governance to realize liberal justice will, incidentally, also help to limit exploitation in trade between individuals. 410 Sarah C. Goff https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core NOTES  See, especially, a few of the authors’ previous books: Mathias Risse, On Global Justice (Princeton, N.J.: Princeton University Press, ); Frank J. Garcia, Global Justice and International Economic Law: Three Takes (Cambridge, U.K.: Cambridge University Press, ); and Frank J. Garcia, Trade, Inequality, and Justice: Toward a Liberal Theory of Just Trade (Transnational, ).  For philosophical treatments of trade alongside other topics of global concern, see Peter A. Singer, One World: The Ethics of Globalization (New Haven, Conn.: Yale University Press, ); Simon Caney, Justice beyond Borders: A Global Political Theory (Oxford: Oxford University Press, ); and Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, ). For an argument that applies principles of global luck egalitarianism to trade, see James Christensen, Trade Justice (Oxford: Oxford University Press, ).  Charles R. Beitz, Political Theory and International Relations (Princeton, N.J.: Princeton University Press, ); Darrel Moellendorf, Cosmopolitan Justice (Boulder, Colo.: Westview, ); and Thomas W. Pogge, World Poverty and Human Rights (Cambridge, U.K.: Polity, ).  John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, ).  WTO agreements are discussed on pp. – of Consent and Trade.  For the definition of a regime, see Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables,” in Stephen D. Krasner, ed., International Regimes (Ithaca, N.Y.: Cornell University Press, ), p. , cited in On Trade Justice on p. .  Rather than providing a “full-blown normative account of consensual trade” (p. ), Garcia’s argument draws from his reflections about the “meaning of trade as a human experience” (p. ). In another strand of the argument, Garcia notes that patterns of nonconsensual trade are inefficient and impose social costs (pp. –). Consent and Trade also agrees with interpretations of international law that recognize a role for state consent.  See Margaret Jane Radin, Contested Commodities (Cambridge, Mass.: Harvard University Press, ); and Debra Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (Oxford: Oxford University Press, ).  See Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules That Run the World (Oxford: Oxford University Press, ) on trade with “kleptocracies” that steal natural resources that rightfully belong to the people; and Christian Barry and Sanjay G. Reddy, International Trade and Labor Standards: A Proposal for Linkage (New York: Columbia University Press, ) on trade with states that violate labor standards.  Others argue that societies should provide compensation for their citizens and other adjustments through their domestic policies. See Aaron James, Fairness in Practice: A Social Contract for a Global Economy (Oxford: Oxford University Press, ), pp. –; Christensen, Trade Justice, pp. –; and On Trade Justice, pp. –.  For this definition, see Todd D. Rakoff, “Contracts of Adhesion: An Essay in Reconstruction,” Harvard Law Review , no.  (April ) pp. –, cited in Consent and Trade on p. .  See Shauna Valentine Shiffrin, “Paternalism, Unconscionability Doctrine, and Accommodation,” Philosophy & Public Affairs , no.  (Summer ) pp. – on “unconscionable contracts.” See also Wenar, Blood Oil, pp. – on the essential role of domestic property laws in recognizing the rights of foreign dictators to export natural resources they have stolen from their people.  On developing countries’ duties to liberalize trade, even on a unilateral basis, see Fernando R. Tesón, “Why Free Trade Is Required by Justice,” Social Philosophy and Policy , no.  (January ), pp. –.  My selected recommendations from the literature on exploitation include: Hillel Steiner, “A Liberal Theory of Exploitation,” Ethics , no.  (January ), pp. – on exploitation as a trilateral rela- tionship; Alan Wertheimer, Exploitation (Princeton, N.J.: Princeton University Press, ) on exploi- tation as unfairness; Ruth J. Sample, Exploitation: What It Is and Why It’s Wrong (Lanham, Md.: Rowman & Littlefield, ) on exploitation as degradation; and Nicholas Vrousalis, “Exploitation, Vulnerability, and Social Domination,” Philosophy and Public Affairs , no.  (Spring ) pp. – on exploitation as a subcategory of domination. For a theory of exploitation in global trade that is based upon a failure of beneficence, see Richard W. Miller, Globalizing Justice: The Ethics of Poverty and Power (Oxford: Oxford University Press, ).  The authors disagree with James’s suggestion in Fairness in Practice that these gains can be estimated with any precision, due to the difficulty of distinguishing the trade regime’s impact on national incomes from other sources of economic change.  Joseph E. Stiglitz and Andrew Charlton, Fair Trade for All: How Trade Can Promote Development (Oxford: Oxford University Press, ); and Andrew G. Brown and Robert M. Stern, “Fairness in freedom and justice in trade governance 411 https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core the WTO Trading System,” in Amrita Narlikar, Martin Daunton, and Robert M. Stern, eds., The Oxford Handbook on the World Trade Organization (Oxford: Oxford University Press, ), pp. –. For criticism of the idea of procedural fairness in trade negotiations, see James Christensen, “Fair Trade, Formal Equality, and Preferential Treatment,” Social Theory and Practice , no.  (July ), pp. –.  This trade regime may fail to promote development precisely because it has fully fair procedures.  I believe Risse and Wollner use their generic account of exploitation as “unfairness through power” for their evaluation of the trade regime in roughly the supplemental way I have sketched. They write, “The failure to proportionately satisfy all relevant claims creates unfairness. There is exploitation if that fail- ure is due to one party’s power over others” (p. ). This is different from their use of the specific principle of nonexploitation in trade for the purpose of evaluating the trade regime.  Risse and Wollner discuss a case in which an authoritarian regime is the source of a power discrepancy between domestic workers and a foreign firm (On Trade Justice, pp. –). They argue that the regime and the firm exploit the workers together, in that the regime uses power to induce the workers to accept the firm’s low wages and the firm derives the benefits. But it seems more likely that the regime represses workers in order to gain something for itself, such as consolidating its power. This latter sce- nario is a demonstration of how an exploiter (the firm) instrumentalizes vulnerability (in workers) for which a third party (the regime) is responsible.  See John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, ) for the idea of a “well-ordered” society.  Sarah C. Goff, “The Impact of Trade Policy on Social Justice,” Res Publica (published online April ), doi.org/./s---. Abstract: Two recent books consider the future of trade governance. Consent and Trade proposes reforms to trade agreements so that states can consent more freely to their terms. On Trade Justice defends reforms to the World Trade Organization, arguing that multilateralism is the foundation for a “new global deal” on trade. Each book describes trade’s distinctive features and proposes a principle to regulate both trade and trade governance. Consent and Trade defends a principle of respect for state consent in trade agreements. On Trade Justice offers a theory of trade justice that requires nonexploitation. Consent and nonexploitation are important principles for economic exchanges. However, trade governance and trade itself are different forms of cooperation, with dif- ferent agents and different interests at stake. Consent and nonexploitation are less compelling as principles for trade governance than for trade itself. Both books understate the conflict between their principles for trade governance and liberal justice. Keywords: consent, exploitation, freedom, cooperation, global justice, liberalism, fair trade 412 Sarah C. Goff https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0892679420000386 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 02:20:37, subject to the Cambridge Core terms of use, available at https://doi.org/10.1007/s11158-020-09461-5 https://doi.org/10.1007/s11158-020-09461-5 https://doi.org/10.1007/s11158-020-09461-5 https://doi.org/10.1007/s11158-020-09461-5 https://doi.org/10.1007/s11158-020-09461-5 https://doi.org/10.1007/s11158-020-09461-5 https://www.cambridge.org/core/terms https://doi.org/10.1017/S0892679420000386 https://www.cambridge.org/core Freedom and Justice in Trade Governance Trade and Trade Governance Consent to Trade and to Trade Agreements Nonexploitation in Trade and in the Trade Regime Conclusion 
work_voeacwud35fedig5qhjhmszuqu	----	Edinburgh Research Explorer Creating the Youth Justice Board Citation for published version: Souhami, A 2015, 'Creating the Youth Justice Board: Policy and policy making in English and Welsh Youth Justice', Criminology and Criminal Justice, vol. 15, no. 2, pp. 152-168. https://doi.org/10.1177/1748895814526724 Digital Object Identifier (DOI): 10.1177/1748895814526724 Link: Link to publication record in Edinburgh Research Explorer Document Version: Peer reviewed version Published In: Criminology and Criminal Justice Publisher Rights Statement: © Souhami, A. (2014). Creating the Youth Justice Board: Policy and policy making in English and Welsh youth justice. Criminology and Criminal Justice. 10.1177/1748895814526724 General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately and investigate your claim. Download date: 06. Apr. 2021 https://doi.org/10.1177/1748895814526724 https://doi.org/10.1177/1748895814526724 https://www.research.ed.ac.uk/portal/en/publications/creating-the-youth-justice-board(817aa4d0-e4b2-41ca-a45a-b2cba951d9cb).html Creating the Youth Justice Board: Policy and policy making in English and Welsh youth justice Abstract Despite continuing interest in English and Welsh youth justice policy there has been little critical engagement with the nature of policy itself. Instead, analyses share a common methodological position whereby ‘policy’ is equated with policy ‘products’ (such as legislation or ministerial speeches). This paper argues that to understand youth justice policy a wider view is required of what constitutes policy, and where and by whom it is made. It explores how policy is produced in the complex arena of social practice which, following the establishment of the Youth Justice Board for England and Wales (YJB), now constitutes the central operation of the system. Through the creation of the YJB the central youth justice system became essentially undefined. This not only gave YJB officials significant influence in shaping the direction of the youth justice system, but a broad and flexible arena in which to act. Moreover it enabled them to do so according to values and objectives potentially unconnected to ministerial outcomes. Drawing on an ethnographic study of the operation of the YJB, this paper explores the policy making work of YJB officials through the transformation of the role and activities of the YJB itself, comparing the comparing the initial parameters of its operation to the way it was defined in action. The paper discusses the implications for understanding New Labour’s English and Welsh youth justice policy, and the nature of ‘policy’ itself. Key words Youth justice, policy, Youth Justice Board, New Labour, governance Word count 8009 Author Dr Anna Souhami, University of Edinburgh, UK School of Law, Old College, South Bridge, Edinburgh EH8 9YL Anna.souhami@ed.ac.uk 0131 650 2024 Short Biography Anna Souhami is a Lecturer in Criminology in the School of Law, University of Edinburgh. mailto:Anna.souhami@ed.ac.uk New Labour’s radical programme of reform of the English and Welsh youth justice system under the Crime and Disorder Act 1998 revitalised a continuing academic debate about the nature of contemporary youth justice policy. In particular, there is an on-going concern with uncovering the ideological and theoretical basis of English and Welsh youth justice: the ‘deep structures’ (Gordon et al 1977) that underpinned the radical restructuring of the system and the implications for both services and the young people subject to them. Much of this debate focused on the reforms themselves (e.g. Crawford 2001, Fionda 1999, Goldson 2000, Haines and Drakeford 1998, Muncie 1999, Newburn 1998, Pitts 2001, Souhami 2007). A smaller body of work has continued to explore the legacy of New Labour’s youth justice policy over subsequent years, in particular the extraordinary expansion in volume and reach of legislative activity (e.g. Fergusson 2007, Goldson 2010, 2011, Muncie 2011, Muncie and Goldson 2006). Through this powerful body of work, a dominant mode of thinking about New Labour’s youth justice has emerged in which it is seen as fundamentally incoherent and ultimately destructive. So, for example, strategies directed by an emotive authoritarian punitivism run uneasily alongside rational logics of managerialism and evidence (e.g. Crawford 2001, Fergusson 2007, Goldson 2010). As a result, some have concluded that youth justice under the New Labour administration lacked any clear philosophical basis (e.g. Muncie 2000, Fionda 1999), suggesting that the government were ‘overtly indifferent’ to the ideological foundation of their policy in general (Fergusson 2007, p182). These analyses have taken a consistent methodological approach, in which the ‘flavour’ (Goldson 2010, p166) of Labour’s youth justice policy is examined through analysis of the discourse, content and scope of the copious policy ‘products’1 that have been issued over the 1 I use the term ‘product’ to differentiate these better known forms of policy from the wider view of policy and policy making described in this paper. However, the term ‘product’ is not intended to imply a ‘finished’ state: past decade, such as legislation, ministerial statements, action plans and frameworks and Green and White papers. Indeed, these products tend to be treated as synonymous with ‘policy’ itself. These products are vitally important and powerful instruments of youth justice policy: they generate and empower some actions and deny others, they make the practices of government knowable and repeatable (Freeman and Maybin 2011), and they are powerfully communicative. They are therefore of particular importance in both directing the overarching direction of the youth justice system and providing an insight into the intentions of a powerful group of central government2 actors. However, they are not wholly constitutive of policy. Instead, this paper argues that in order to understand the nature of English and Welsh youth justice it is necessary to take a wider view of what constitutes policy, and where and by whom it is made. In particular, it explores how policy is produced in the complex and expansive arena of social practice which, following the establishment of the Youth Justice Board for England and Wales (YJB), now comprises the central operation of the youth justice system. This paper therefore takes a different approach to that currently dominant in criminological writing and elsewhere. Its focus is not the ‘products’ of central policy or their construction, but the arrangements and activities of officials, in this case YJB personnel. Through this approach it departs from the ‘abiding cliché’ (Page and Jenkins 2005, p2) that policy is set by a relatively narrow group of ministers and elite Whitehall advisers, with the surrounding bureaucracy concerned simply with the details of implementation or ‘codification’ (e.g. Fergusson 2007). By this view, there is a clear practical and conceptual divide between policy outputs may of course continue to be shaped as they are put into action, as this paper shows (see also e.g. Freeman and Maybin 2011, Hill 2009). 2 As this article shows, the boundaries of ‘central government’ are increasingly permeable and difficult to define. However by this term I intend to differentiate between Departmental actors (such as civil servants and ministers) and others, including the YJB. central policy formulation and delivery and the actors tasked with each. The YJB itself has been seen as involved solely with the implementation of policy and not its formulation: by this view, it is simply a vehicle for the delivery of ministerial objectives, ensuring that ‘policies …go all the way down’ (Pitts 2001, p5)3. However, as I will show, this division is false. While ostensibly concerned with ‘delivery’, the work of YJB officials intrinsically constitutes policy making. Indeed, the notion of a separation between formulation and implementation has long been challenged in relation to front-line service delivery. Here research has repeatedly shown how practitioners create policy in the discretionary decisions they employ through the course of their work (Lipsky 1980). That there remains an enduring assumption of a policy/implementation divide in the context of executive government in part reflects a widely noted lack of empirical research on what, precisely, central government actors do. This omission strongly contrasts with a rich body of research on the work of those who deliver services, and appears to be symptomatic of an underlying assumption in thinking about policy in which it is conceptually distinct from and often contrasted with ‘practice’ (Freeman et al 2011). As Freeman et al put it, ‘practice’ is viewed as the domain of front line service delivery alone: it is something that happens ‘after’ policy (2011, p128). Further, the few extant studies on the everyday work of civil servants (Stevens 2011, Page 2003, Page and Jenkins 2005) show that officials whose roles are conventionally taken to be limited to administration are in fact routinely engaged in policy formulation. In their study of middle-ranking civil servants, Page and Jenkins (2005) argue that policy making is an inevitable consequence of translating policy ideas into action: the details of ministerial directives require elaboration by those officials charged with implementing them, yet 3 This position was explicitly voiced in debates about the YJB’s abolition: e.g. Hansard 28 March 2011, Column 957. discretion in relation to even small questions of implementation can result in the initiation of new ideas, or define the overall shape of a policy. However, the policy making roles of YJB officials are particularly important in understanding English and Welsh youth justice policy. In a politically volatile area, even those ‘implementation’ decisions formally delegated to officials such as commissioning prison places or determining which targets are to be measured are inextricable from wider political objectives (see also Gains 2003). However, the freedom of YJB officials to shape the direction of the youth justice system extends far beyond that which could reasonably be termed the details of policy. As I will show, the structural and statutory framework of the YJB not only gave officials a wide range of powers to direct youth justice services, but made the parameters of their remit highly elastic and ambiguous. In these circumstances, any putative division between implementation and formulation becomes irrelevant: instead, as Dunleavy puts it, “policy is just what professionals in the field do” (1981, p13). Moreover, while research has shown that way civil servants make policy is strongly directed by the expectations of their ministers rather than any other personal or organisational values (Page 2003, Page and Jenkins 2005, Campbell and Wilson 1995, Hill 2009), this has not been the case within the YJB. Instead, the features of its establishment as an NDPB enabled decision making produced by officials to be structured according to emergent values and objectives unconnected to ministerial outcomes, and, on occasion, consciously in opposition to them. The following pages explore these issues through a central strand of New Labour’s youth justice policy: the development of the role and activities of the YJB itself. The establishment of the YJB was pivotal to New Labour’s strategy to reform the management of youth offending. It was a radical innovation in the organisation of English and Welsh youth justice, setting in place a new series of relationships and activities at both a central and local level. However, as I will show, the arrangements and scope of its practices were markedly reconfigured through the development of the YJB, transforming New Labour’s policy. To explore these it draws on an extended ethnographic study of the operation of the YJB. For one calendar year (2006-7) research focused on the internal operation of the YJB, including observations of almost all YJB internal activities and meetings and over fifty interviews with Board members and officials in all roles throughout the organisation. Further research explored the regional operation of the YJB, including observations of monitoring activities and interviews with regional YJB and YOT staff 4. It is important to note that the YJB has of course continued to evolve over recent years. Further, as policy is inevitably shaped by the aims of key actors (e.g. Rock 2004) the way the YJB constituted itself at this time inevitably reflects the personalities and interpretations of those in post. However, as I will show, the political and structural climate surrounding the YJB at this time illuminates particularly clearly both the ambiguities in the remit and territory of the YJB and the creativity this afforded. Consequently it was a moment at which the policy work of officials was brought into focus – and, moreover, the ways in which their activities were able to diverge from that set out in the policy ‘products’ issued by central government. Establishing the YJB Through the establishment of the YJB, the New Labour government aimed to produce a consistent and coherent system of youth justice across England and Wales5 (Home Office 1997 a, b). The creation of a single body dedicated to youth justice at the centre was intended 4 Following Page and Jenkins (2005) and Rock (2004) I have tried to give a sense of the diversity of research participants in this paper by providing contextual detail of their role where relevant: a Board Member, Chair, senior official, the architect of the regional strategy, and so on. 5 While further discussion is out of the scope of this paper, it is important to note that youth justice services are partially devolved in Wales and there are therefore some important differences in the YJB’s responsibilities and operation. to draw together the oversight of the system which had previously been spread across government departments. This, it was argued, would provide a clear direction and purpose to the system, allow for consistent standards in local services and give youth justice a specific policy presence in central government, ensuring that it would be considered separately from adult criminal justice matters (Home Office 1997a, b). To achieve this, the YJB was established outside existing government departments, as an executive non-departmental public body (NDPB). It was directly accountable to the Secretary of State and its ‘sponsor’ department (initially the Home Office, now the Ministry of Justice) but at ‘arm’s length’ to Whitehall: it operated outside the civil service, with its own structures of governance - a Board of up to 12 members headed by a Chair - and a staff of advisers headed by a Chief Executive. The rationale for the creation of the YJB as an NDPB reflected that of the ‘hiving off’ (Pliatsky 1992) of executive functions of government to arm’s length organisations6 more broadly (see Efficiency Unit 1988). First, it was argued that as a specialist, single-purpose body the YJB could provide detailed management of the implementation of Labour’s youth justice reforms which a vast, multi-function civil service could not. Second, its NDPB status would liberate it from a notoriously conservative, cautious and bureaucratic civil service culture (e.g. Brooks and Bate 1994, Driscoll and Morris 2001, Kemp 1990), allowing for speed and innovation in implementation. Third, removing the YJB from a ‘closed and monolithic’ (Kemp 1990, p187) civil service would make lines of accountability clearer and bring greater transparency to the youth justice system (Home Office 1997a). Fourth, and crucially, the creation of a Board allowed for the formal incorporation of expert independent 6 The term ‘arms-length organisations’ reflects that of contemporary policy and refers to the range of public bodies that are not part of the conventional civil service structure, including NDPBs. The YJB is described as both an NDPB and an ‘arms-length organisation’ in Government documentation and, reflecting that, in this paper too. advisers into the central policy making process. This allowed the new youth justice strategy to be ‘properly grounded in the experience of practitioners and other experts’ (Home Office 1997a, 56). This was an important departure from the forms of expertise prioritised in the civil service, in which substantive specialisation is avoided: careers are structured around experience of a wide range of policy areas in order to maintain a detached overview of departmental work and process (e.g. Campbell and Wilson 1995, Rock 2004, Stevens 2011). Further, the YJB was given a broad range of statutory functions. First, it became responsible for advising the Home Secretary (now the Secretary of State for Justice) on the operation and standards for youth justice system. Second, it was given the duty of monitoring all aspects of the performance of the youth justice system to ensure standards were set. In order not to deflect from its monitoring and standard-setting role, it was decided the YJB should not manage directly youth justice services, now delivered through newly-created Youth Offending Teams (YOTs) (Youth Justice Task Force 1998, para 66, see also Souhami 2007)7. So, while the YJB charged YOTs with a series of centrally defined duties and targets, they were given considerable control in the way in which these are carried out (Home Office 1997a, 1997b). Typical of this type of ‘governing at a distance’ (e.g. Rose and Miller 1990) the devolving of autonomy to YOTs was accompanied by a tightening of central regulation and surveillance, and the YJB was given the power to require agencies to provide information for this purpose. Third, reflecting an explicit refocusing of youth justice services through notions of ‘evidence’ and demonstrable outcomes (Audit Commission 1996), the YJB was given a range of responsibilities connected to identifying and promoting ‘effective practice’, including commissioning and publishing research and providing financial assistance to develop projects in line with the approaches it identified (1998, para8.34). For this purpose, it 7 The YJB has a different relationship with the juvenile secure estate: while it does not run secure institutions, it holds commissioning/purchasing and contract compliance functions which necessarily bring about a more direct involvement in the operation of these institutions. was established as an executive body, with its own budget and the power to allocate grants. Fourth, from April 2000 it was given the additional responsibility of commissioning and purchasing secure places for children under 18. Policy making in the YJB These statutory functions gave the YJB a central role in shaping the youth justice system. Not only did it have a formal role in advising ministers, but it delineated the acceptable standards, priorities and forms for local services and defined what was to be considered appropriate evidential supports. Its activities were therefore pivotal in directing not only the organisation and activities of the youth justice system but what was thinkable within it. But in addition, one of the most distinctive features of New Labour’s youth justice is that its central operation became essentially undefined. First, its functions and location established the YJB as a series of bridges: across government departments and areas of policy, between welfare and justice imperatives, local and central government, policy and service delivery, children’s services and criminal justice. It therefore operated on essentially indeterminate territory, in the spaces between accustomed practices. Second, its statutory duties were inherently ambiguous. Functions such as ‘advising’ the home secretary or ‘monitoring’ the youth justice system were hugely elastic and open to multiple interpretations. Third, the structural relationships within which it operated were intrinsically slippery. Through its ‘arm’s length’ relationship, the YJB occupied a contingent position: not quite inside central government, but not quite outside it either. Further, the devolving of autonomy in local service delivery to YOTs alongside a simultaneous increasing of central scrutiny and control set in place what Crawford has termed a ‘decentring-recentring dialectic’ in its relationship with local services, in which ‘power and control are not resolved in any unilinear direction’ (Crawford 1994, p503-4). The relationships between central government, the YJB and YOTs were therefore not a conventional hierarchy in which the interests and authority of each could clearly be demarcated. Instead, the flows of power and activity between them were in flux. In this way, the essential ambiguity of the structural and legislative parameters of its operation not only gave YJB officials significant influence in shaping the direction of the youth justice system, but a broad and undefined arena in which to act. The effects of this scope for creativity can be seen through the transformation of the role and activities of the YJB. Creating the YJB At the time of its establishment in 1998, the YJB was closely connected to its ministerial sponsors. Both its personal relationships and objectives were strongly entwined with the New Labour project. It was housed in the Home Office alongside civil service staff, and consisted of a Board of 12 and a staff of six advisers, of whom many had strong connections with the Home Office and had been closely involved in the development of New Labour’s youth justice reforms. The first Chair, Norman Warner, had been (then) Home Secretary Jack Straw’s senior policy adviser while in opposition and had helped draft Labour’s emergent youth justice strategies. The Chief Executive, Mark Perfect, was the co-author of the Audit Commission’s (1996) report on which the reforms had drawn; other staff and Board members had been involved in the ‘Youth Justice Task Force’ established by the Government to advise on their implementation. Once in government, New Labour’s early youth justice strategy continued to be generated directly by the nascent YJB. As one YJB official described it, “the original Board members came in and they sat round the table and wrote the policies.” Further, given the centrality of youth justice to New Labour’s election priorities, the YJB were closely associated with the Government’s wider political imperatives. For example, one of New Labour’s five election ‘pledges’ was a promise to halve the time between arrest and sentence for persistent young offenders, from 142 to 71 days, within five years. This made the YJB responsible for an area of work against which the new Government had staked its credibility (see also Pitts 2001). As an official in the early YJB explained, he and his colleagues saw their task as closely connected to New Labour’s broader policy agenda: At that particular stage it was about putting something in place which [the Board] had been the architects of but in such a way that it was seen to and did benefit the Labour Party in terms of being successful. However, the YJB’s structural distance from central government was considered fundamental to its role. It afforded a powerful freedom of acting and thinking, in contrast to the increasingly stifled role of advisors within the civil service (see Campbell and Wilson 1995). Alongside their privileged ‘insider’ status, this was thought to make the YJB highly effective. An official explained: He [Norman Warner] was very robust in discussions with ministers, he told them exactly what he thought, but he could get away with that because the political patronage that he had from Jack [Straw]” Distancing However, by the time this research began in 2006, a series of organisational, structural and political shifts had eroded the close connection between the YJB and its sponsor unit. First, the YJB had lost its privileged position. Blair was coming to the end of his period of office amid plummeting popularity. Senior YJB staff described a fraught atmosphere among ministers: there was “a crisis of confidence”; “signs of panic buttons being hit”. Reflecting this, government departments were continually split and reorganised, leading to sudden transformations in initiatives, priorities and careers8. At the same time, Cabinet Office increased its control of new policy initiatives through the establishment of the Prime Minister’s Delivery Unit. As the Chair said, “Number 10 is controlling the minutia of departmental policy, certainly in our neck of the woods”. The result was incoherence in espoused objectives within and between departments. This was particularly strongly felt in relation to youth justice, which straddled multiple policy areas. In contrast to 1998 therefore, there was no clear political programme of which the YJB was part. Instead, youth justice had lost its status: as the Chair put it, “We are not in the Home Secretary’s in-tray”. Further, in the churn of central government the YJB had lost their personal connections with ministerial staff and thus their patronage. The Chair struggled to initiate meetings with the Home Secretary; Board Members reported they rarely met with ministers. This reinforced the YJB’s disconnect from central government: Board Members reported they did not feel ‘involved’ or ‘valued’ by their sponsor department. Second, its distance from Whitehall was reinforced by organisational changes within the YJB. Over eight years it had dramatically expanded. From a Board and staff of six advisers in 1998, by 2006 it had become an organisation of 2129. It was now physically separated from the Home Office in a dedicated building. This both removed officials from the scrutiny and influence of ministerial staff and allowed for the development of new ways of working, routines and processes. The development of even these mundane aspects of organisational 8During the research period, the Home Office appeared particularly vulnerable: public outcry about the handling of foreign national prisoners led to the forced resignation of Charles Clarke, then Home Secretary, and his replacement by John Reid who resigned less than a year after that. The Home Office was put under review and found unfit for purpose. The prison population reached crisis point, leading to public criticism of Government policy by senior criminal justice officials including the Chair of the YJB, Rod Morgan, and culminating in his resignation in January 2007. 9 By the 1st April 2010 the YJB had increased to nearly 400 staff. At the time of writing, this has been reduced to 234. life reinforced and constituted officials’ sense of the YJB as an organisation distinct from Whitehall. For example, the Chair was adamant he would not communicate with ministers through the form of written ‘submissions’ used in the civil service: I am never going to write a submission. Because I am not a civil servant, I am independently appointed and I don’t write very often to ministers and when I do it’s going to be a personal letter, Dear John. Third, the YJB became seen by staff as the sole owner of youth justice expertise, strongly differentiating it from the Home Office. Throughout the organisation, members described their expert input as the defining purpose of the YJB: its statutory duties of monitoring and research underpinning its role to ‘deliver evidence’, ‘say what works and what doesn’t work’. Members’ sense of the YJB as an expert body was reinforced by its composition. Reflecting its ability as an NDPB to recruit outside the civil service, the majority of officials had been appointed from YOTs, local government or related fields, and at the time of the research approximately 25% were on short term secondments from service delivery. Staff described their practice experience and associated claims to expertise as a central part of the identity of the YJB: as one official put it, “we’ve lived and breathed this stuff”. In other words, the expert input of the YJB was now seen to derive not just the Board as originally envisaged (Home Office 1997a, b), but was permeated throughout the entire organisation. Within the YJB the nature of the expertise was in fact at issue: for example, some noted that the connection with practice was in fact increasingly distant for many YJB staff; questioned the extent or value of the professional expertise of their colleagues; or criticised the quality of data and analysis produced within the organisation. However, crucially, the YJB was seen as expert in comparison with civil servants or ministers who, as discussed above, rarely had substantive knowledge. The YJB therefore became seen as an organisation in which expertise in youth justice was solely located. As a senior official put it, “the Home Office isn’t the experts, we are”. This had two important effects for this discussion. First, it became a means by which YJB staff could position themselves against central government actors, thereby defining and describing their own distinctive identity (see Parker 2000). Second, this created a shift in the power relations between the YJB and its sponsor unit. The lack of technical expertise among civil servants is central to ministers’ ability to maintain control over the permanent bureaucracy on which they depend (Page and Jenkins 2005, Campbell and Wilson 1995, see Weber 1948). Without substantive authority, civil servants are unlikely to develop intellectual or ideological attachments to a particular strategy or approach which challenges those favoured by ministers (Page and Jenkins 2005, p148). This was subverted within the YJB. Members commonly described principles of managing youth offending which were perceived to derive from and be given authority by their expertise, and which transcended commitment to ministers. For example, one Board Member said, “I couldn’t operate in that manner, [with] unquestioning loyalty to implement government policy come what may. I’d have to leave”. In this way, eight years after its establishment the positioning and identity of the YJB had significantly shifted. Within the YJB it had come to be seen as a body separate from its sponsor unit, with a distinct mission and values given authority by its ownership of substantive expertise. The freedom afforded by the highly elastic structural and legislative parameters - and its loss of scrutiny by central government - enabled new interpretations of its role and functions to develop in line with its emergent identity. As I will show, the interpretations which emerged transformed the central policy environment in a way which markedly diverged from that set out in the Crime and Disorder Act 1998. The following pages explore two aspects of this transformation: the reconfiguration of its role and relationships with central government and in localities. The YJB and central government By the time of the research, there had been an important reconfiguration of the YJB’s relationships with central government. The YJB’s arm’s length status as an NDPB became reframed as ‘independence’, in which the YJB acted as - in the Chair’s terms - a ‘critical friend’, raising concerns about the direction of government strategies on the basis of their expertise. The elasticity of the YJB’s legislative and structural parameters allowed the interpretation of their role to be constructed as part of their statutory duties. A recently appointed Board Member explained: I think when you look at the objectives of the Youth Justice Board, serving the minister should mean actually promoting what will reduce first entrants, what will reduce re-offending … and if we’re true to that then serving the minister is serving the children … it’s in line with our mission. Further, the Chair argued that this role was central to the YJB’s identity as an NDPB and the defining feature of their contribution to the central policy process. There’s no point in having an NDPB unless we do step out of line occasionally, unless we do challenge, otherwise what’s the point in you existing, you might just as well be a division in the Home Office. Moreover, a view emerged within the YJB that it was their duty to make such ‘advice’ public when traditional channels had failed. For example, a Board Member said: If the Youth Justice Board delivers evidence and the government rejects it or does not act upon it, I think we have a responsibility to be vocal about that…that is exactly the time that you stand up as a non-departmental public body and you say this isn't acceptable. In this way, the YJB began to position themselves as independent critics of government policy. This realignment of their central relationships came into focus during the research period when the Chair, Rod Morgan, gave a series of interviews strongly criticising the Government for ‘demonizing’ young people through the rise in Anti-Social Behaviour Orders (ASBOs) (e.g. Goodchild 2006) and widely publicising a crisis in the rising prison population. He argued that conducting these interviews was not only allowed by the remit of the YJB, but in fact required by his statutory duties as Chair: We have a statutory duty to advise ministers as well as to monitor what’s going on and if we think that there are aspects of the way policy is being interpreted which is counter-productive which is making things worse rather than better, which is inconsistent with things that the government has said it wishes to do … then we have a duty to say it. However, the role of being what one official described as an ‘oppositionist to Government policy’ was contested within the YJB. Some officials felt it stretched the boundaries of their relationships too far – as one put it, ‘we are not a campaigning organisation’. Moreover, it made the YJB vulnerable: because of its contingent structural relationship, overt criticism put not only its influence but its continued existence at risk. For example, officials were not consulted in the development of the Respect Action Plan (Respect Task Force 2006) despite its overlap with YJB interests, only learning of its publication the day before its launch. Many staff believed this was ‘payback’ for the Chair’s criticism. As one Board Member put it, “when he is being very public and criticising government technically and legally he’s entitled to do that … it’s just that in terms of trying to make things work it’s not a very clever idea” (for further discussion of this point, see Souhami 2011). Yet while the form and extent of the YJB’s criticism was at issue, its importance for this paper is that it was under discussion at all. It demonstrates the extent of the shift in self- image within the YJB, allowing for both the reconfiguration of central relationships and the possibility of acting in accordance with this new self-image, however cautiously. This is discussed further below. The YJB and localities The YJB’s activities in localities had dramatically transformed by the time of this research. In contrast to the small staff of a Board and advisers working closely with Cabinet on broad strategic issues in 1998, in 2006 the YJB had expanded its activities into the arena of service delivery and into local policy negotiations across England and Wales. The YJB’s statutory functions did not allow for direct input in local services10. If YOTs failed to achieve their targets or provide their data returns, the YJB could require the local authority to intervene but could not do so itself. The YJB contributed significantly to YOT funding (in 2006, approximately 20% of all YOT funding) which it could potentially withdraw: however, it was acknowledged by YJB staff that withdrawing funding would harm already struggling services and at the time of the research this sanction had never been used. Its only meaningful statutory involvement in YOTs therefore was to require information for monitoring purposes. Early documentation connects the YJB’s monitoring function closely to New Labour’s overarching youth justice strategy. It was charged with monitoring all youth justice agencies, including the courts, to ensure the aim of preventing offending was met, to raise standards and to increase transparency and accountability across the youth justice system (Home Office 10 Although there is a closer relationship with secure estate provision, as above note 7. There is extensive monitoring activity in the secure estate but this is for monitoring contractual compliance rather than the statutory function discussed here. 1997a, Youth Justice Task Force 1998). However, by 2006 a particular interpretation had evolved in the YJB in which it monitored not the system as a whole, but service delivery within YOTs. The YJB’s micro-level interest in YOT practice was initially enabled by the allocation of grants for specific purposes, such as those created through the ‘Development Fund’ established at the YJB’s inception, and later, funding for prevention schemes such as Youth Inclusion Programmes (YIPs). This funding of centrally prescribed schemes allowed a close specification and scrutiny of the way the funds were used: the YJB appointed monitors to advise YOTs on the establishment of the programmes and check they were being delivered according to centrally-prescribed guidance. Yet alongside this, the monitoring function became intrinsically connected with improving YOT performance more widely. Monitoring frameworks now required YOTs to provide vast amounts of case level data about their work with children, partner agencies and programmes. These data were not used to further the YJB’s statutory function to advise the Home Secretary (where broader aggregate figures were required) but instead were fed back to YOTs to indicate where services needed improvement. To support this activity, regional offices were established throughout England and Wales, staffed by a team of Monitors who regularly visited local YOTs to ‘validate’ the data produced. Monitoring staff were required to have backgrounds in youth justice or related fields, and described their role as providing meaningful input to YOT practice: as one put it, “we advise, assist, befriend… we’re like a critical friend”. Moreover, the YJB began to intervene in services directly. A team of ‘performance improvement consultants’ was created to construct programmes of work in areas in which regional staff thought YOTs were struggling. The development of this activity was structured by a number of emerging principles in the YJB which were unconnected to the framework which established it. Most importantly, throughout the YJB monitoring activity was firmly framed as ‘support’ for YOTs which, as those with substantive expertise, only they could supply. So, for example, data were described as a tool for YOTs: the official responsible for monitoring explained, “It’s the YOTs data. It’s not our data. …It should be about them not about us”. Monitors described their work as “casework”; “it’s about better outcomes for young people”; “it’s like working with young people a couple of levels up”. YJB staff explained that, as experts the role of support was vital for the YJB. ‘If we don’t do it, who else will? There's no one else the YOTs can turn to. The only experience of youth offending is in YOTs, and at the centre. There’s no one else.’ (YJB official) But in addition, this activity allowed the YJB an important influence in localities, despite having no statutory presence. The role of ‘influencing’ was not part of the YJB’s statutory duties. Instead, it evolved in relation to a radical restructuring of local government over the course of the decade, in which the strategy, priorities, funding and management of services increasingly became devolved to localities. The structures set in place to support monitoring activity now located YJB staff in the centre of local networks and negotiations. An architect of the regional monitoring structure explained this was an explicit aim of its development: It was the YJB feeling, hang on, we’re the experts but we’re not being listened to so we need to have people out there who will be heard… I think it was a naked grasp for power, influence. We’ve got to be out there. Further, although not explicitly acknowledged by officials, the new forms of monitoring activities inevitably extended and reinforced the YJB’s control over local services. Although the interventions in YOTs were constructed as ‘support’ - and may have been received as such – at the same time they allowed for the extension of central surveillance and intervention into areas of the youth justice system beyond those ostensibly allowed by the YJB’s statutory functions, enlisting YOTs and local authorities into their own self-regulation (e.g. Rose 1999). In this way, the interpretation of the YJB’s monitoring function became markedly transformed over its life. Officials were able to extend the role of the YJB beyond its statutory duties to intervention in services at a local and regional level. These developments not only reconfigured the relationships with localities, but the boundaries of the YJB. A new series of actors and networks now became drawn within YJB activities, creating flows of people, practices and ideas between the centre and localities, policy and service delivery. As I argue below, this has significant implications for the development of youth justice policy. Policy and policy making in English and Welsh youth justice An empirical exploration of the central operation of the English and Welsh youth justice system shows how policy is produced in the activities of officials within the surrounding bureaucracy. Instead of simply involved with implementation, officials throughout the YJB were intrinsically engaged with policy formulation. Through their activities, the central architecture of the youth justice system was radically reconfigured, transforming its operation. The policy making roles of YJB officials are particularly important in the context of English and Welsh youth justice. Through the establishment of the YJB, the New Labour Government created a powerful yet undefined organisation at the centre. While the indeterminacy of its legislative and structural framework was initially obscured by the ‘insiders at arm’s length’ relationship adopted by the early YJB, the shifting dynamics of the organisational and political context revealed the essential ambiguity of the parameters of its operation, allowing the YJB the flexibility to evolve in ways which were enabled by but not envisaged in New Labour’s original policy. Further, a mutual distancing between the YJB and central government enabled the strategies produced by officials to be structured according to values and objectives unconnected to those of its sponsor unit. Paradoxically therefore, while New Labour’s youth justice programme has been widely criticised for sharply curtailing discretion and flexibility in local services (e.g. Pitts 2001), it allowed for a new creativity in its central operation11. The creation of the YJB significantly disrupted the ‘small worlds’ (Rock 1995) of Whitehall policy making. Its establishment as an NDPB in itself introduced less cohesive and controlled forms of working alongside the ‘older models’ of civil service practices (Rock 1995, p2). Yet the way the YJB constituted itself further complicated the policy arena. First, the reframing of its role in central government as a ‘critical friend’ in effect incorporated critical input in formal policy processes on a statutory basis. Secondly, it blurred the boundaries between the centre and localities, between central and regional government, service delivery and policy, drawing a new series of actors, interests and activities into the central operation of the system. This paper is not primarily concerned with the effects of these new arrangements on the substantive direction of the policy ‘products’ generated by central government (such as legislation, Green and White papers, and so on). However, it is likely their impact in this area will be complex. The central and local relationships established by the YJB were both asymmetric and precarious: those connected to the YJB had little ‘penal capital’ (Page 11 While further discussion is out of the scope of this paper, it is important to note that the scope of activities of the YJB – an unelected public body - raises important questions for accountability in central government. 2013) in a field occupied by powerful state actors. So, for example, the YJB’s critical input was necessarily moderated in order to ensure its continued influence with departmental actors and thus its continued survival. As a result, Rod Morgan has argued that during his tenure as Chair the YJB had little meaningful impact on the substance of central policy (Morgan 2010). Similarly, the local actors who were drawn into the YJB’s networks were relatively poorly positioned in the penal field and consequently struggled to exercise influence within it. Indeed, the absorption of local agents into the YJB’s networks could be argued to reflect not what the YJB has termed a ‘partnership’ but a reconfiguration of processes of control: reflecting the extent to which the YJB is ‘power dependent’ on local agents, the exercise of power has been reframed as negotiation and bargaining to persuade others to carry out their commands (Edwards and Hughes 2005, p351). However, while the absorption of new interests, actors and activities into the YJB does not straightforwardly suggest an ability to influence the shape of central policy products, nor does it straightforwardly preclude it. The reconfiguration of the YJB’s relationships is in itself likely to have a more subtle and pervasive impact on the direction of centrally generated policy. First, it established new sites of contestation at which ideas can emerge and be resisted. At the least, these have disrupted the “strong tradition of deference and conformity” (Brooks and Bate 1994 p186) entrenched in civil service policy making (also Driscoll and Morris 2001, Kemp 1990, Rock 2004, Stevens 2011). Second, the composition of the ‘penal field’ (Page 2013) is itself important as it configures what is thinkable within it. In other words, even if the relationships established by the YJB were asymmetric, the new forms of expertise, experience and practices that they generated were significant. They interrupted the ‘closed and monolithic’ (Kemp 1990, p187) nature of the civil service, allowing for the introduction of new forms of professional knowledge, values and ways of thinking. In this way they shaped what was considered possible: both in terms of the solutions to each uncertain problem, and in the forms of capital through which actors draw their authority (see also Page 2013). Simply put, it matters who is included in the penal field. Most importantly however, the developments in the YJB show that these products are not wholly constitutive of policy. Instead, policy is also produced in a complex field of social practice, incorporating a diverse range of actors, practices, relationships and networks. This suggests a number of implications for thinking about policy in criminological research. First, it indicates the importance of a more expansive view of policy and policy making that extends beyond a preoccupation with policy products. This is not to suggest that these products are not vital subjects of critical analysis: as discussed above, they are of course particularly powerful and important instruments in the policy process. Yet without a wider view of policy making the strategies and principles that set the direction of services cannot fully be captured. Second, while research tends to treat policy products as static instruments, the research reported here suggests they should instead be understood as dynamic and evolving. In particular, it shows how policy emerges through action. Rather than simply reproducing a ‘blueprint’ for its operation, the YJB defined itself through what it did. Third, it shows how policy emerges in the spaces between defined parameters of legislation and guidance. So, while the Crime and Disorder Act 1998 and surrounding documentation set out a framework for the role and activities of the YJB, the incomplete and ambiguous nature of this framework allowed the central operation to develop in new and important ways. Fourth, the policy that is produced in these practices can diverge in important ways from that set out in the products that generated them. In the context of youth justice, this opens up the possibility that the ‘flavour’ (Goldson 2010, p166) of youth justice in England and Wales may in practice differ from the incoherent, authoritarian and punitive themes underpinning the plethora of official policy products issued by central government. But most importantly, it suggests that to understand the ‘deep structures’ (Gordon et al 1977) that underpin youth justice policy, a conceptual and methodological shift is required, from a relatively narrow focus on the products of policy making to the practices of those who make it. In other words, to understand the nature of youth justice policy, we need to explore what policy makers do. Acknowledgements I would like to thank Professor Richard Sparks and four anonymous reviewers for their helpful comments on an earlier draft of this paper. Funding acknowledgements This work was supported by the British Academy [PDF/2004/411] and the Leverhulme Trust [RF-2013-203] References Audit Commission (1996):Misspent Youth. London: Audit Commission. Brooks, I and Bate, P (1994): ‘The problems of effecting change within the British civil service: a cultural perspective’. British Journal of Management 5, 177-190. Campbell, C and Wilson, GK (1995): The End of Whitehall: A comparative perspective. Oxford: Blackwell. Crawford, A (1994) “The partnership approach: corporatism at the local level?” Social and Legal Studies 3(4) 497-519 Crawford, A (2001): Joined-up but fragmented: contradiction, ambiguity and ambivalence at the heart of New Labour’s ‘third way’. In Matthews, R and Pitts, J: Crime, Disorder and Community Safety. London: Routledge. Driscoll, A and Morris, J (2001): ‘Stepping out: rhetorical devices and culture change management in the UK civil service’. Public Administration 79 (4) 803-824 Dunleavy, P (1981): ‘Professions and policy change: notes towards a model of ideological corporatism’. Public Administration Bulletin 36, 3-16. Edwards, A and Hughes, G (2005): ‘Comparing the governance of safety in Europe: A geo-historical approach’. Theoretical Criminology 9 (3) 345-363. Efficiency Unit (1988): Improving management in Government: Next Steps. Report to Prime Minister. London: HMSO. Fergusson, R (2007): “Making sense of the melting pot: multiple discourses in youth justice policy”. Youth Justice 7 (3): 179-194 Fionda, J (1999): “New Labour: old hat: youth justice and the Crime and Disorder Act 1998.” Criminal Law Review, January, 36-47. Freeman, R, Griggs, S and Boaz, A (2011): “The practice of policy making”. Evidence and Policy 7 (2) 127-136 Freeman, R and Maybin, J (2011): ‘Documents, practices and policy’. Evidence and Policy 7 (2) 155-70. Gains, F (2003) “Executive Agencies in Government: The Impact of Bureaucratic Networks on Policy Outcomes” Journal of Public Policy, Vol. 23, No. 1 pp 55-79. Goldson, B (Ed) (2000): The New Youth Justice. Lyme Regis: Russell House Publishing Goldson, B (2010): “The sleep of (criminological) reason: Knowledge-policy rupture and New Labour’s youth justice legacy”. Criminology and Criminal Justice 10 (1) 155- 178 Goldson, B (2011): ‘Time for a Fresh Start’, but is this is? A Critical Assessment of The Report of the Independent Commission on Youth Crime and Antisocial Behaviour. Youth Justice 11 (1) 3-27 Goldson, B and Muncie, J (2006): “Critical Anatomy: Towards a principled youth justice” In B Goldson and J Muncie (Eds), Youth Crime and Justice. London: Sage. 204-231 Goodchild, S (2006): Demonised: We lock them up. We give them Asbos. But is our fear of kids making them worse?”. Available at: http://www.independent.co.uk/news/uk/crime/demonised-we-lock-them-up-we-give-them- asbos-but-is-our-fear-of-kids-making-them-worse-475273.html Last accessed 7th November 2013. Gordon, I, Lewis, J and Young, K (1977): ‘Perspectives on policy analysis’. Public Administration Bulletin 25, 26-30 Haines, K and Drakeford, M (1998): Young People and Youth Justice. London: Macmillan. http://www.independent.co.uk/news/uk/crime/demonised-we-lock-them-up-we-give-them-asbos-but-is-our-fear-of-kids-making-them-worse-475273.html http://www.independent.co.uk/news/uk/crime/demonised-we-lock-them-up-we-give-them-asbos-but-is-our-fear-of-kids-making-them-worse-475273.html Hill, J (2009): The Public Policy Process. Fifth Edition. Harlow: Longman. Home Office (1997a): New National and Local Focus on Youth Crime: A Consultation Paper. London: HMSO. Home Office (1997b): No More Excuses: A New Approach to Tackling Youth Crime in England and Wales. London: HMSO Kemp, P (1990): “Next Steps for the British Civil Service”. Governance: An International Journal of Policy and Administration, Vol. 3, No, 2 April 1990 (pp. 186-196) Lipsky, M (1980): Street-level Bureaucracy: Dilemmas of the individual in public services. New York: Russell Sage Foundation Miller, P and Rose, N (1990) 'Governing economic life', Economy and Society, 19:1, 1 - 31 Morgan, R (2010): “Axing the Youth Justice Board could be a bold step”. The Guardian, Tuesday 26 October 2010. Available at: http://www.guardian.co.uk/society/joepublic/2010/oct/26/youth-justice-reform-bold- steps Last accessed 10th June 2013. Muncie, J (1999): “Institutionalized intolerance: youth justice and the 1998 Crime and Disorder Act”. Critical Social Policy 59, 19 (2): 147-175 Muncie, J (2000): Pragmatic realism? Searching for criminology in the new youth justice. In Goldson, B (ed): The New Youth Justice. Lyme Regis: Russell House Publishing. Muncie, J (2011): “Illusions Of Difference: Comparative Youth Justice in the Devolved United Kingdom”. British Journal of Criminology 51 (1): 40-57 Newburn, T (1998): “Tackling youth crime and reforming youth justice: the origins and nature of ‘New Labour’ Policy”. Policy Studies 19 (3/4): 199-212 http://www.guardian.co.uk/society/joepublic/2010/oct/26/youth-justice-reform-bold-steps http://www.guardian.co.uk/society/joepublic/2010/oct/26/youth-justice-reform-bold-steps Page, EC (2003): “The civil servant as legislator: law making in British administration”. Public Administration 81 (4), 651-679. Page, J (2013): Punishment and the penal field. In J Simon and R Sparks (eds): The Sage Handbook of Punishment and Society. London: Sage. 152-166 Page, EC and Jenkins, B (2005): Policy Bureaucracy: Government with a cast of thousands. Oxford: OUP. Parker, M (2000): Organizational Culture and Identity: Unity and Division at Work. London: Sage Pitts, J (2001): “Korrectional Karaoke: New Labour and the zombification of youth justice” Youth Justice 1 (2) 3-16. Pliatzky, L (1992) “Quangos and agencies”. Public Administration 70 (4) 555-563 Respect Task Force (2006): Respect Action Plan. London: Home Office. Rock, P (1995): ‘The opening stages of criminal justice policy making’. British Journal of Criminology 35 (1) 1-16 Rock, P (2004): Constructing Victim’s Rights: The Home Office, New Labour, and victims. Oxford: OUP. Rose, N (1999). Powers of Freedom: Reframing political thought. Cambridge: CUP. Souhami, A (2007): Transforming Youth Justice: Occupational identity and cultural change. Cullompton: Willan. Souhami, A (2011): ‘Inside the Youth Justice Board: ambiguity and influence in New Labour’s youth justice’. Safer Communities 10 (3) 7-16 Stevens, A (2011): ‘Telling policy stories: an ethnographic study of the use of evidence in policy-making in the UK’. Journal of Social Policy, 40 (2) 237-255 Weber, M (1948): From Max Weber: Essays in Sociology. Transl. HH Gerth and C Wright Mills, London: Routledge and Keegan Paul. Youth Justice Task Force (1998): Preventing Offending by Young People: the final report for the Youth Justice Task Force. London: Home Office. Establishing the YJB Policy making in the YJB Creating the YJB Distancing The YJB and central government The YJB and localities Policy and policy making in English and Welsh youth justice Acknowledgements Funding acknowledgements References 
work_vsgborxmcncilprbgb2cmnsoce	----	Standing with those who seek justice Ruth E Malone Each time I read a news report about a lawsuit filed against tobacco companies, or a jury award in such a case, I salute the courage and tenacity of those individuals and families who continue to carry the tobacco battle forward in the courtroom. Of course, the lawyers deserve credit as well, and there are many others among the global tobacco control community who have contributed time and expertise to such cases, sometimes at considerable personal sacrifice. But given the enormous physical, financial and personal burdens plaintiffs face in going up against the industry’s armies of well-paid lawyers and their investigators and consultants, who leave no stone unturned in excavating the personal pasts of plaintiffs and trying to excoriate them in court, it is truly an act of exceptional courage for those who bring these cases to carry on. A few months ago, Dr Howard Engle died of chronic obstructive lung disease. He was the Miami Beach paediatrician whose tobacco lawsuit accusing tobacco companies of knowingly addicting people and failing to warn them of the dangers of continuing to smoke resulted in the largest punitive damage award in US history. A Florida jury awarded $145 billion (£89 billion; J102 billion) in punitive damages against tobacco companies in 2000. Although the verdict was later over- turned, the case inspired others, and the legal process led to more cases brought by individuals harmed by tobacco products. I stand with Dr Engle’s family. This week, a jury awarded $5.3 million to 92-year-old Leon Barbanell of Florida, whose wife, Shirley, died with chronic obstructive pulmonary disease and lung cancer after smoking Marlboros for some 40 years. It is the sixth verdict for the plaintiffs in the set of thousands of lawsuits known as the Engle progeny. Of course, endless appeals are likely, as tobacco companies continue to argue in court that plaintiffs are responsible for their disease, or (as Philip Morris tried to argue in the Barbanell case) that they did not have or did not die from the disease, or that if they had the disease, it was the result of some other cause besides ordin- ary use of the company’s products. And the awarded amounts are still chump change for multinationals. I stand with the Barbanell family. The day I write this, a jury decided that cigarette maker Philip Morris USA should pay $13.8 million in punitive damages to Jodie Bullock, the daughter of Betty Bullock, who died of lung cancer in 2003. I stand with Jodie Bullock. In so many cases, it is the families who continue to pursue justice on behalf of their loved ones, while the companies continue year after year to obstruct and deny, promoting to new generations the same deadly products that have killed Howard, Shirley, Betty, and millions of others. While to date, most of the legal cases are in the United States, there are courageous challengers in other countries, including Japan, where the government itself still is a major owner of Japan Tobacco. Since 2005, when their case began, plaintiff Kenichi Morishita has died of pneumonia and bacterial infection, leaving 67-year-old cancer patient Koreyoshi Takahashi and Masanobu Mizuno, 67 and suffering from emphy- sema, to continue the fight. They hope that even if they lose, their case will draw more attention to the harmfulness of cigarettes. I stand with the Morishita family, and with Koreyoshi Takahashi and Masanobu Mizuno. In Poland, Stanisław Lubicz-Sienicki is suing tobacco firms for damages related to the death of his mother, who died of lung cancer earlier this year. I stand with Stanislaw Lubicz-Sienicki. In Israel, a class action lawsuit is moving ahead on behalf of a mother who died at 47 from lung cancer after becoming addicted to menthol cigarettes. I stand with the family of that mother, whose name was not listed in the report. I stand with the Cippolone family, with Mayola Williams, with the family of Leslie Whitely, with all those unnamed here who take on the tobacco companies. Some day we will look back on their sacrifices and realise what groundbreaking work they did, opening the first cracks in the tobacco industry’s previously solid wall of denial. Having cared for many patients who suffered terribly from tobacco-caused dis- eases before dying, I know that continuing a lawsuit while battling for each breath, trying to stay focused while in excruciating pain must be exhausting. Yet those who seek justice do it. They go on. They go on in the face of scorn from tobacco industry lawyers, and sometimes from former friends who do not understand the nature of addiction and the scale of the deceptions perpetrated by tobacco companies. They do it on behalf of their families, on behalf of those before them whose lives were sacri- ficed to tobacco company profits, and on behalf of those coming after, for whom they seek a better world: a world in which, perhaps, companies would not knowingly promote deadly and addictive products. A world in which, perhaps, those who had done so would be held accountable at last. A just world. Competing interests: Ruth Malone served as a tobacco industry documents consultant for the United States Department of Justice in USA vs Philip Morris et al. Provenance and peer review: Commissioned; not externally peer reviewed. Tobacco Control 2009;18:337. doi:10.1136/tc.2009.033530 Correspondence to: Ruth E Malone, Editor, Tobacco Control; ruth.malone@ucsf.edu Editorial Tobacco Control October 2009 Vol 18 No 5 337 o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://to b a cco co n tro l.b m j.co m / T o b C o n tro l: first p u b lish e d a s 1 0 .1 1 3 6 /tc.2 0 0 9 .0 3 3 5 3 0 o n 2 4 S e p te m b e r 2 0 0 9 . D o w n lo a d e d fro m http://tobaccocontrol.bmj.com/ 
work_vvc5qjv3ebd5tj7ypyqj3h4kji	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221739727 Params is empty 221739727 exception Params is empty 2021/04/06-03:20:38 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221739727 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:38 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_vvfcpdenynddlhxh7hgksbry3y	----	Justice for Foxes n Knight, C. (2015) Justice for foxes. Law and Philosophy, 34(6), pp. 633-659. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://eprints.gla.ac.uk/107363/ Deposited on: 16 June 2015 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk 1 CARL KNIGHT JUSTICE FOR FOXES* ABSTRACT. Ronald Dworkin maintains that value is unitary, in the sense that different values do not conflict. This article resists this ‘hedgehog’ view with reference to the values of equality and utility. These appear to yield conflicting prescriptions in cases where one possible distribution gives different individuals the same amount of advantage, and the other contains an unequal distribution of a greater overall amount of advantage. Hedgehogs might respond to such a case in two ways. First, they might claim that equality and utility are not truly in conflict. However, this claim seems implausible on our ordinary concepts of these values, and Dworkin does not provide grounds for revising our concepts. Second, they might deny that one of these values—utility—is a genuine value. However, one of the two aspects of Dworkin’s fundamental principle of equal concern appears to be supportive of utility, and he offers no good arguments for his preferred strategy of accommodating this aspect of equal concern within the value of equality. Furthermore, the alternative ‘fox’ view, which recognizes equality and utility as conflicting values, each accommodating one aspect of equal concern, has the advantage that it stays truer to familiar moral concepts. Moral, political and legal decision-making is strongly responsive to value judgments. Where an agent recognizes some action as furthering a value, they have a reason to perform that action. In considering which course of action to follow, an agent does then * This article is in press, as of June 2015, at Law and Philosophy (http://www.springer.com/law/journal/10982). 2 immediately face two questions. First, which things count as values? And second, can values conflict? Fundamental disagreements about public policy are often grounded in contrasting answers to these questions (and the further question of how to resolve value conflicts if they do arise). Addressing these conceptual questions may then have great practical importance, as a large literature in moral, political, and legal philosophy recognizes. In his last major work, Justice for Hedgehogs, Ronald Dworkin decisively answered the second question in the negative.1 His main claim is that value is unitary, in the sense that its different components complement each other rather than conflict. He endorses what he calls “full value holism—the hedgehog’s faith that all true values form an interlocking network, that each of our convictions about what is good or right or beautiful plays some role in supporting each of our other convictions in each of these domains of value.”2 This holism requires that “there are no genuine conflicts in value.”3 Dworkin’s primary conceptual resource in support of the thesis of the unity of value is his account of values as being ‘interpretative concepts’. On this account, the meaning of any given value can only be established by examining other values. As Dworkin puts it, a defense of some particular conception of a political value like equality or liberty must draw on values beyond itself. … We cannot defend a conception of any of 1 Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011). 2 Dworkin, Justice for Hedgehogs, p. 120. 3 Dworkin, Justice for Hedgehogs, p. 119. 3 them without showing how our conception fits with and into appealing conceptions of the others. That fact provides an important part of the case for the unity of value.4 Presumably Dworkin does not here mean to say that conceptions of values must draw on other values in the specific sense that they must not conflict with them. Were that the case, his interpretative concept view of values could not “be an important part of the case for the unity of value,” as it would include the unity of value among its premises. He must rather mean that we take into account other values when developing our conception of a particular value, and that it is only once we do this that it becomes apparent that values do not conflict. I broadly accept this interpretative concept approach to value. But as William Edmundson has commented, “one might worry, Is there any reason to assume that the best interpretation of something will render that thing as a unified whole, especially if the ‘package of purposes’ attributed to it is rich and diverse?”5 I argue that, once we consider how to describe each of two major distributive justice values, in light of the role of the other value, it becomes apparent that we can readily conceive of them as conflicting. That is, among values, there are (at least) two that conflict, given the role each plays in relation to the other. 4 Dworkin, Justice for Hedgehogs, p. 7; see also Ronald Dworkin, Law’s Empire (Harvard: Harvard University Press, 1986), chs 1-2. 5 William A. Edmundson, “Book Review: Ronald Dworkin, Justice for Hedgehogs,” Law and Philosophy, 31 (2012), 759-767, p. 763. 4 One of these values is equality. It is concerned with reducing differences in advantage levels between the well off and the badly off. I make no assumptions about the kind of advantage with which equality is concerned; candidates include welfare, resources, and capabilities.6 I also set aside choice and responsibility. Those who find arguments for equality convincing only where individuals’ responsibility has been equivalently exercised can simply assume that it has been so exercised in my examples.7 The other value is concerned with social maximization, which may be interpreted as achieved by the highest total amount of advantage, by the highest average of advantage, or in some other way.8 Dworkin refers to this value when mentioning the “familiar idea in political theory that a just society will make some compromise between efficiency and distribution.”9 Elsewhere in this passage Dworkin is explicit that he is describing a conflict between utilitarianism and egalitarianism, and efficiency is often used to refer to non-advantage maximizing concepts (such as Pareto optimality), so I will refer to the value in question as utility. I will, however, interpret that value quite broadly. 6 The typically greater marginal utility of benefits for the worse off compared to the better off will tend to make real world inequalities more pronounced when measured in welfare rather than resources. This has no bearing on the examples I use, which should be interpreted as referring only to whichever measure of advantage the reader favours. 7 It should therefore not be complained that my value of equality would reward those who deliberately develop expensive tastes. See Richard J. Arneson, “Equality and Equal Opportunity for Welfare,” Philosophical Studies, 56 (1989), 77-93; G. A. Cohen, “On the Currency of Egalitarian Justice,” Ethics, 99 (1989), 906-44. Dworkin inspired these ‘luck egalitarians’, but refuses to describe himself as a luck egalitarian; see “Equality, Luck and Hierarchy,” Philosophy and Public Affairs, 31 (2003), 190-8, p. 191. 8 See Derek Parfit, Reasons and Persons (Oxford: Oxford University, 1984), part IV. 9 Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000), p. 54. 5 Though my value of utility is characterized by its maximization of advantage, advantage need not be construed in welfarist terms, as the most familiar utilitarian theories interpret it. It might be welfare, or alternatively resources, capabilities, or whatever is thought to be important.10 I also do not, and need not, resolve a tricky internal interpretative issue for utilitarians: the difference between average and total utilitarianism is only felt where population size varies, and it is stable in my examples. In order to defeat the hedgehog’s thesis, and substantiate the rival ‘fox’ thesis that values, even on their best interpretations, can come into conflict with each other, we need only show that a rather weak kind of value conflict is possible. I have in mind conflicts of pro tanto reasons for action.11 One value provides us with a pro tanto reason for acting in one way, the other value provides us with a pro tanto reason for acting in a second way, and we cannot act in both ways.12 That such a conflict between equality and utility is possible seems obvious. Consider this example: Equality versus utility: two distributions are available, one of which secures two units of advantage for each half of the population, the other of which secures one 10 Hence those impressed by arguments to the effect that utilitarianism as usually conceived relies on some dubious conception of welfare (see, for instance, Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978), pp. 233-8; Sovereign Virtue, ch. 1) cannot object to my value of utility on that score. 11 See Susan Hurley, Natural Reasons (Oxford: Oxford University Press, 1989), ch. 7. 12 One plausible basis for these conflicting pro tanto reasons are conflicting judgments of value, which are central to Joseph Raz’s definition of value conflict; see his The Practice of Value (Oxford: Oxford University Press, 2003), p. 44; cf. Michael Stocker, Plural and Conflicting Values (Oxford: Oxford University Press, 1990), pp. 86-7 6 unit of advantage for a worse-off half of the population and five units of advantage for the better-off half. Assuming (as I do) that the population size is stable and that the advantages of the better off are not traceable to their choices, equality is uncontroversially best furthered by the first distribution, because it is equal.13 Utility is uncontroversially best furthered by the second distribution, because it contains more advantage for society (and a higher average advantage level). As equality gives us a pro tanto reason for selecting one distribution, utility gives us a pro tanto reason for selecting the other, and we cannot have both, these values are in conflict. Furthermore, when we are conceptualizing equality, the fact that its recommendation conflicts with utility’s gives us no obvious reason to revise our conceptualization. Similarly, when we are conceptualizing utility, the fact that its recommendation conflicts with equality’s gives us no obvious reason to revise our conceptualization. As Dworkin acknowledges, legal and political philosophers routinely treat these two interpretative concepts as conflicting. That this pro tanto conception of conflict is weak is brought out by comparison with two alternative conceptions. First, my sense does not imply that anyone who endorses conflicting values must face indeterminacy. Dworkin understands indeterminacy as holding “not that some particular act is neither forbidden nor required, 13 The first distribution is also better for the worst off in absolute terms. Thus, any readers who might reject the value of equality, understood as a view concerned with relative advantage levels, in favour of a focus on the absolute advantage levels of the worst off, as Rawls’ difference principle suggests, can nevertheless agree that there is a conflict in values in this and similar examples presented later in the article. 7 but that there is no correct answer to the question whether it is forbidden or whether it is required.”14 My claim is not that, where equality and utility conflict, there is necessarily no correct answer as to what we should do. I make only the weaker claim that equality and utility give rise to mutually incompatible pro tanto reasons. As these are pro tanto reasons, there may be no problem with resolving the conflict determinately.15 A position intermediate between straightforward resolution and indeterminacy is what Dworkin calls “uncertainty,” which applies where considerations on each side seem finely balanced and one takes “no view of the matter.”16 I do not take a stand on which of these three positions to take. Whether or not value conflicts can be resolved, their existence would make trouble for the hedgehog. 14 Dworkin, Justice for Hedgehogs, pp. 88-9. Indeterminacy seems to be implied by what Robert Talisse refers to as metaphysical pluralism; see his Pluralism and Liberal Politics (Abingdon: Routledge, 2012). 15 There is a diversity of views about how this might be done. Some, such as James Griffin, see value pluralism as consistent with commensurability; see “Incommensurability: What’s the Problem?” in Ruth Chang (ed), Incommensurability, Incomparability, and Practical Reason (Cambridge, MA: Harvard University Press, 1997). Others, like William Galston, argue that we can choose between even incommensurable values on reasonable grounds; see his Liberal Pluralism (Cambridge: Cambridge University Press, 2002), p. 35; see also Stocker, Plural and Conflicting Values, ch. 7. George Crowder further distinguishes between particularist and universalist approaches to choosing between conflicting values; see Liberalism and Value Pluralism (London: Continuum), ch. 3. For discussion of trade-offs among reasons for action, see Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011), ch. 3. 16 Dworkin, Justice for Hedgehogs, p. 91. Dworkin’s ‘uncertainty’ roughly corresponds to Talisse’s preferred epistemic pluralism. 8 Second, though I say equality and utility conflict, that does not mean that, whatever we do, we do some wrong. Isaiah Berlin, who brought the fox/hedgehog terminology to prominence, combines his foxy position with the view that the conflict of value leaves (in Dworkin’s words) “an irredeemable moral stain” and that we must sometimes choose “not whether to wrong a group, but which group to wrong.”17 But though Dworkin only discusses foxy views which have this ‘tragic’ character, it is evidently quite detachable from the recognition of value conflict itself. A non-tragic alternative suggests that, if we bring one of the distributions in equality versus utility about, after due consideration of the reasons presented by equality, utility, and any other relevant values, we can quite plausibly hold that we do no wrong, though we inevitably do not promote one value as it conflicts with another.18 Our obligations extend only to the possible. I again take no stance here, and only mention this non-tragic view to show that, if the tragic view is indeed mistaken, we need not rush to accept Dworkin’s value holism. But is there such a thing as value conflict? Examples such as equality versus utility cannot be batted away by appeal to the fact that values are interpretative, as the conflict they present is familiar and fits with our wider conceptual scheme. Dworkin must then appeal to conceptual resources other than, or in addition to, his main idea that values are interpretative concepts. He might take one of two strategies in order to preserve the thesis of the unity of value. First, he might deny that the conflict is genuine, by arguing 17 Ronald Dworkin, Justice in Robes (Cambridge, MA: Harvard University Press, 2006), p. 109; see also Isaiah Berlin, Liberty (Oxford: Oxford University Press, 2002). 18 This view seems to arise quite naturally from Dworkin’s powerful objection to Berlin that he would require that there is something wrong in preventing murder, as it is a restriction on Berlin’s idea of liberty; see Dworkin, Justice in Robes, pp. 115-6. 9 (for it cannot, on pain of circularity, be assumed) that values, qua interpretative concepts, respond to other values in such a way that value conflict is impossible. Second, he might deny that one or other of the putatively conflicting values really is a value. The second of these strategies appears to be favoured by Dworkin, as he does not appear to believe that utility is a value. Given this, it is unsurprising that Dworkin does not attempt to show that equality and utility are compatible, as the first strategy suggests; nevertheless, his comments regarding other values suggest the broad lines of a Dworkinian defence of the compatibility of equality and utility. I treat the first strategy, which denies the conflict between equality and utility, in the first part of this article, and the second strategy, which denies the value of utility, in the second part. I argue that, as neither strategy succeeds, equality and utility conflict. In the final part I complement these mostly defensive arguments with the positive claim that the fox’s conceptual scheme has an advantage over the hedgehog’s. I. IS THERE REALLY A CONFLICT? Richard Fallon suggests that, where your colleague solicits comments on a book manuscript, and you find it to be bad, you face a conflict between the values of honesty and kindness.19 This has at least a superficial similarity with my claimed conflict between equality and utility. It is therefore worth seeing whether Dworkin’s response to Fallon succeeds. 19 Richard Fallon, “Is Moral Reasoning Conceptual Interpretation?” Boston University Law Review, 90 (2010), 535-550, p. 539. 10 Dworkin initially draws attention to the aforementioned distinction between uncertainty and indeterminacy.20 It could easily be the case that, say, honesty was the best policy in this case, but that it was just hard to know as much. As Dworkin acknowledges, this point does nothing to resolve the apparent conflict, so we can quickly set it aside. Though Dworkin writes that “[i]t is … natural to say in a case like Fallon’s that we are torn between kindness and honesty” he holds that “[w]e might disagree, however, as to why it seems natural.”21 In support of this suggestion he suggests that our concepts of honesty and kindness are, as interpretative concepts, works-in-progress. They can both be satisfied in most cases, but in others, like this case, they are in tension with each other, and so we understandably report a conflict. But this shows only that the concepts we have been working with are not the finished article. We arrive at further refinement by asking questions such as “whether it is really cruel to tell an author the truth” and “whether it is really dishonest to tell him what it is in his interests to hear and no one’s interests to suppress.”22 Dworkin needs one more step of argument to establish the possibility of values not truly conflicting: he must offer reasons for thinking that our process of refining our values has the result that values do not conflict.23 But the suggestions Dworkin makes 20 Dworkin, Justice for Hedgehogs, pp. 118-19. 21 Dworkin, Justice for Hedgehogs, p. 119. 22 Dworkin, Justice for Hedgehogs, p. 119. 23 A referee comments that “Dworkin might well hold that we, qua finite human beings with limited cognitive capacities, can never reach a level of insight in which all value conflicts are dissolved. However, counterfactually fully rational and well-informed agents might arrive at such a conclusion.” Gerald Gaus 11 here are problematic. He first asserts that “[w]e reinterpret our concepts to resolve our dilemma: the direction of our thought is towards unity, not fragmentation.”24 On the one hand, it may be that progress in thinking tends towards unity in the sense of coherence or consistency, but there is nothing incoherent or inconsistent in the thought that honesty and kindness might conflict. So a tendency towards unity in that weak sense cannot be used to support a movement away from conflicting concepts of honesty and kindness. On the other hand, it is not at all obvious that progress in thinking tends towards unity in Dworkin’s favoured ‘no inter-value conflict’ sense. Indeed, that is roughly what the argument under consideration is supposed to demonstrate, so it cannot serve as a premise. The reference to a dilemma may be intended to support this strong claim, but the dilemma is not such a threat that we should rework our moral concepts to avoid it. Situations in which we feel we can be honest or kind, but not both, are familiar parts of moral life.25 A non-conflicting conceptual scheme may, then, be unacceptably at odds similarly argues that “given the complexity of our belief systems, it is, other things equal, always plausible to conjecture that any given disagreement is an instance of inconclusive reasoning.” See his Justificatory Liberalism (Oxford: Oxford University Press, 1996), pp. 155-6. That may be so, but the assertion that rational beings would accept the unity of value is prima facie no more plausible than the assertion that fully rational beings would accept value conflict. Dworkin would still need to offer reasons for thinking that fully rational beings would tend towards a unity rather than plurality of values. These reasons would take much the same shape as the reasons I consider later in this paragraph. 24 Dworkin, Justice for Hedgehogs, p. 119. 25 Of course, the role of such intuitions in ethics is controversial; see, for instance, Peter Singer, “Ethics and Intuitions,” The Journal of Ethics, 9 (2005), 331-52; Folke Tersman, “The Reliability of Moral Intuitions,” Australasian Journal of Philosophy, 86 (2008), 389-405. But Dworkin himself aims to build theories that 12 with our considered judgments.26 We might be suspicious that it overlooked something that mattered morally. The other way in which Dworkin tries to bolster the view that refinement removes conflict is through critique of the rival view that “[m]oral conflict is real, and any theory that denies this is false to moral reality.” This rival holds that the conflict between honesty and kindness “is not an illusion produced by incomplete moral interpretation; it is a matter of plain fact.”27 Dworkin objects that it is unclear what this plain fact could consist in, given that there are no moral particles to fix the content of value. But this objection relies on lumbering the rival view with unnecessary metaethical baggage. The relevant rival view need not take a stance on such issues and, as I have suggested, might even accept Dworkin’s position that moral concepts are interpretative concepts, a matter for substantive moral philosophy which takes into account the role of other concepts.28 It just says that moral concepts are properly construed as in principle open to conflict. Against this view Dworkin claims that the concepts of honesty and kindness do not “have a precise and conflicting content just in virtue of linguistic practice.”29 He are compatible with ordinary people’s understanding of ethics; see, for instance, Sovereign Virtue, pp. 289- 90. 26 William Galston, The Practice of Liberal Pluralism (Cambridge: Cambridge University Press, 2005), p. 17. 27 Dworkin, Justice for Hedgehogs, p. 120. 28 The “radical pluralism” of G. A. Cohen, which is “consistent with many views of the status of our fundamental convictions, including the view that they are noncognitive expressions of emotion or attitude,” is one form of the relevant view. See his Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), p. 4 n. 5. 29 Dworkin, Justice for Hedgehogs, p. 120. 13 contends that “[m]any people do believe that it would be an act of kindness to tell your colleague the truth. Or that it would not be dishonest, in this circumstance, to trim.”30 The evidence Dworkin cites is insufficient to establish even that refinement of our conflicts leads away from conflict. First, and to repeat, the task before Dworkin is not to show that there are some cases in which an apparent value conflict dissolves under closer inspection. His claim is that values never conflict, so any case of genuine value conflict defeats his position. Second, even supposing that Dworkin’s claims about people’s beliefs were true, they would not really support even the possibility of honesty and kindness being in harmony. It is not enough just to observe what “[m]any people … believe” about values, as they might be mistaken about them. As Dworkin himself emphasizes, the correct interpretation of such arguments is a matter of moral argument, not mere head- counting.31 Finally, and bearing in mind the previous two points, Dworkin does not consider really difficult (and hence, most relevant) counterexamples to his position, such as equality versus utility. In the kindness and honesty case there is vagueness about whether the colleague is really harmed by the truth, such that some people may hold that telling the truth is simply ‘being cruel to be kind’. But in equality versus utility, there is no such vagueness—no one could claim that the equal outcome promoted utility or that the unequal outcome promoted equality. 30 Dworkin, Justice for Hedgehogs, p. 120. 31 See, for example, Dworkin, Justice for Hedgehogs, pp. 170-1. 14 What might one who is minded to deny this conflict say? I will now briefly revisit the points Dworkin makes regarding honesty and kindness, to see if they fare any better as a way of resolving the equality and utility conflict. The starting point of a Dworkinian attempt to reconcile equality and utility would be to treat our versions of these concepts as incomplete, and in need of refinement. We refine them by asking questions such as “is it really contrary to efficiency to favour four equally distributed units of welfare to six unequally distributed units?” or “is it really contrary to equality to prefer six unequally distributed units of welfare to four equally distributed units?” The problem for the Dworkinian is that such questions seem, if anything, more obviously to give rise to answers that show value conflict than did the honesty/kindness questions. At least assuming, as any attempt to reconcile the values of equality and utility assumes, that equality and utility are separate values,32 it seems clear that equality will not favour (unchosen) inequality over an equal distribution, and utility will not favour less advantage rather than more. What about the suggestions that I earlier said Dworkin offered for the refinement of values as a process that removes conflict? His initial assertion that “the direction of our thought is towards unity, not fragmentation” does, as before, either fail to challenge value conflict, assume rather than argue for its falsity, or argue for its falsity on the ground that we are so unsettled by the thought of two values pulling in different directions that we must revise one to fit with the other. This argument is no more plausible for equality and 32 The thought here is that, if one of these values were not a value, we might try to broaden the other value in an otherwise counterintuitive way in order to accommodate considerations traditionally associated with the other value. But as we are here assuming that both values actually are values, there is no motivation for a counterintuitive broadening of meaning. That assumption is relaxed in the next section. 15 utility than it was for honesty and kindness. It is routine to think that a distribution of benefits and burdens is good in one regard, but bad in another. If one country is rich, but unequal, and another country equal, but poor, it is natural to think that there is something good and something bad about both countries. If we reframed our concepts so that to say that a country was rich was to imply that it was equal, and vice versa, we would have lost clarity in our thinking. And, though it is harder to judge advantage levels empirically, the same conceptual point would follow from an attempt to say that an equal distribution was necessarily a distribution high in overall advantage, and vice versa. It is not value conflict but the absence of value conflict that is unsettling. We certainly have no reason to invent it, as Dworkin urges. There is, finally, a quite different argument specific to the distributive sphere that Dworkinians might offer for the unity of value.33 Suppose we all face a particular risk— the risk of congenital disease, for example. This risk, when it materializes for some of us but not others, will cause an unchosen unequal distribution between us. Dworkin has long argued that we should correct for that unchosen inequality only to the extent that we would have insured against it under the equal background conditions of equal risk and an equal ability to purchase insurance.34 Under such equal background conditions, we may well decide that we would not want to purchase insurance that completely restores us to equality after risks materialize for us if that scheme would impose extreme costs on us in the form of insurance premiums. We may well prefer an insurance scheme that would compensate us to a lesser extent than what would be necessary to restore us to equality 33 The remainder of this paragraph is attributable, with only one minor change, to an anonymous referee. 34 Dworkin, Sovereign Virtue, ch. 2. 16 with others. If the hypothetical insurance model is a plausible guide to what the value of equality requires, then, contrary to what I have argued, an efficient but unchosen inequality can be compatible with the value of equality. A major problem with this argument is that, in at least some cases, the hypothetical insurance market cannot be a plausible account of what both equality and utility require.35 Suppose that there is a one-in-a-hundred possibility of acquiring a congenital disease that requires expenditure of £100,000 per annum to secure basic mobility. This expenditure will not be retained or reinvested by society, though it does enable the income of the person with the disease to be increased from £1,000 per annum to £6,000 per annum as they will be able to work part time. Average contributions of £1010 per year from those ninety-nine in a hundred who do not acquire the disability would then be required to provide the disease expenditure. Average pre-contribution income is £10,000 per annum, usually enough for a welfare level of 10 units, and post- contribution income would be £8,990 per annum, which is sufficient only for a welfare level of 9 units. As it happens, the person who develops the disease will have a low (5 unit) level of welfare even if they are mobile, as they will still be very ill, though that is five times their welfare level if they are not mobile. To keep matters simple, I assume that the options come down either to insuring at the level described above, or not insuring at all. Any expenditure below the full £100,000 has no benefit for the person who develops the disease as, say, providing half of the cost of the yearly procedure necessary for 35 Another problem is that the argument is too limited in scope for the present task. It claims to show that equality and utility might be rendered consistent were equality of resources put into practice. But unity of value requires that values never conflict, even under unfavourable economic conditions. See Galston, The Practice of Liberal Pluralism, p. 174. 17 mobility is no better than providing none of it—unless the full cost is met, the procedure will not go ahead. I can of course assume this, as any example of values conflicting disproves the Dworkinian thesis of the unity of value. The question is, would people antecedently accept insurance? If they do, it is arguable that equality is satisfied, as inequality in resources and welfare is reduced. But it seems intuitively (and independently of my earlier description of utility) implausible to say that utility has been satisfied. After all, society has foregone £100,000 of income (divided between 99 of its members) for the sake of £5,000 of income (concentrated on one of its members). It has similarly foregone 99 units of welfare (divided between 99 of its members) for the sake of 4 units of welfare (concentrated in one of its members). Whether or not insurance should be taken out, it is clear that doing so does not maximize the amount of advantage in the society. What, then, if insurance is not taken out? In that case, utility is probably satisfied—welfare and resources have been promoted. But it is then intuitively (and independently of my earlier description of equality) implausible to say that equality has been satisfied. Society could have accepted the insurance increased the worst off’s income from £1,000 per annum to £6,000 per annum, and their welfare level from 5 to 1, both massive improvements to their lives which would also decrease (relative) inequality. The insurance would also have been recommended by one of Dworkin’s favoured measures of equality, the envy test.36 It can be assumed that the person with the disease would envy other people’s bundles of personal (e.g. money) and impersonal (e.g. 36 Dworkin, Sovereign Virtue, ch. 2. 18 marketable talent) resources.37 The envy test therefore recommends that resources are transferred to the person with the disease. But instead of improving the position of the worst off, and reducing inequality, and respecting the envy test, people have chosen to increase the benefits of the already advantaged. Whether or not insurance should be taken out, it is clear that not doing so is contrary to equality on any ordinary understanding. Thus, there is no policy that satisfies both equality and utility. Now Dworkinians might respond that I have, in the foregoing analysis, relied on ‘ordinary’ understandings of equality and utility. The point, they may claim, is that we should revise these to fit with the results of hypothetical insurance markets. For instance, it might be claimed that equality should be measured by applying the envy test only ex ante to the distribution of diseases.38 But no reason to undertake such a revision of our ordinary view of equality is presented by considering hypothetical insurance markets. As I have already mentioned, there is nothing unsettling about equality and utility being in conflict, and that remains the case when we consider hypothetical insurance markets. Nothing feels out of place in my analysis of the choice to insure being the choice between an equal or advantage-maximizing distribution. It is the Dworkinian analysis of this result, which yields the conclusion that we can satisfy both equality and utility, that is problematic. It makes things easier than they can possibly be. Here is one last argument in support of that view. Consider this example: 37 For the distinction see Dworkin, Sovereign Virtue, pp. 322-3. 38 See Ronald Dworkin, “Sovereign Virtue Revisited,” Ethics, 113 (2002), 106-43; “Equality, Luck and Hierarchy.” 19 Insuredland and Uninsuredland. At t1 there are two identical countries facing the insurance decision described above. At t2 Insuredland insures and Uninsuredland does not. Neither of the possible unity of value analyses of Insuredland and Uninsuredland is plausible. It might be claimed that Insuredland fully satisfies the demands of equality and utility.39 But if Insuredland fully satisfied the demands of utility, then Uninsuredland can be no better as regards utility. And it is absurd to claim that it is no better from the perspective of utility to favour £5,000 over £100,000, and 4 units of welfare over 99. Alternatively, it might be claimed that Uninsuredland fully satisfies the demands of equality and utility. But if Uninsuredland fully satisfied the demands of utility, then Insuredland can be no better as regards equality. And it is absurd to claim that it is no better from the perspective of equality to favour £6,000 of income for the worst off to £1,000 of income for the worst off, 5 units of welfare for the worst off to 1 unit of welfare for the worst off, and a distribution rejected by the envy test to one recommended by the envy test. The inescapable conclusion is that Insuredland better realizes equality, and that Uninsuredland better realizes utility. Hypothetical insurance markets cannot salvage the Dworkinian claim that equality and utility do not conflict. II. IS UTILITY REALLY A VALUE? 39 To fully satisfy a value is to realize its ends as far as is presently possible. Unity of value requires that all values can be simultaneously fully satisfied. Merely partially satisfying one value, when there is some alternative that would fully satisfy it at the cost of decreased satisfaction of the other value, would expose the values as conflicting. 20 The above findings regarding equality and utility might be of little concern to Dworkin. His position appears to be that utility is not really a value. Thus Dworkin might favour a version of the second strategy for defending the unity of value that I mentioned in the introduction. Specifically, he might deny that there is a value conflict between equality and utility by saying that, though they conflict, utility is not a value.40 To see how he defends that view, I must first briefly set out his approach to appraising values. In Dworkin’s view, a legitimate government must endorse two fundamental principles: “First, it must show equal concern for every person over whom it claims dominion. Second, it must respect fully the responsibility and right of each person to decide for himself how to make something valuable of his life.”41 He even describes this as an “unchallengeable proposition.”42 I will not challenge the proposition here, so in that regard my critique of Dworkin is internal. Applied to distributive justice, this proposition requires the “simultaneous equation” of “find[ing] a solution that respects both the reigning principles of equal concern and personal responsibility.”43 Even when satisfying equal concern, we must satisfy personal responsibility, and vice versa. On what basis, then, might Dworkin deny that utility is a value? One line of argument considers a form of utilitarianism that is framed in putatively egalitarian 40 The other version of the second strategy is obviously closed to Dworkin, as he is committed to equality as a value; see the discussion below. 41 Dworkin, Justice for Hedgehogs, p. 2. 42 Dworkin, Justice for Hedgehogs, p. 422. 43 Dworkin, Justice for Hedgehogs, p. 3. 21 terms.44 On this view “we treat each person as an equal by valuing his pleasure (or happiness or welfare or success) equally in choosing policies that will increase the aggregate of pleasure (or one of those other commodities) in the community as a whole.”45 According to Dworkin, this view “offers an unpersuasive interpretation of equal concern.”46 Here is his argument for that conclusion in its entirety: Parents would not show equal concern for all their children if they spent their entire available budget educating only those who were likely to earn heavily in the market. That would not treat the success of each child’s life as equally important. Concern for a large group of persons is not the same as concern for its members one by one. Yes, an aggregation strategy values happiness or welfare or some other interpretation of utility, no matter in which person it resides. But that is concern for a commodity, not for a person.47 The analogy with assigning a domestic educational budget seems to entirely miss the mark. Happiness is obviously not equivalent to mere money. It is not typically a means to an end. You would clearly lack equal concern if you invested in your children’s education with the sole goal of maximizing their earning potential—when this might mean that the one potential investment banker gets all the investment and the potential 44 See also Will Kymlicka, Contemporary Political Philosophy, 2nd ed. (Oxford: Oxford University Press, 2002), ch. 2. 45 Dworkin, Justice for Hedgehogs, p. 354. 46 Dworkin, Justice for Hedgehogs, p. 354. 47 Dworkin, Justice for Hedgehogs, p. 354. 22 teachers get nothing. But this says nothing about utilitarians, as they do not endorse this strange objective. The claim that “[c]oncern for a large group of persons is not the same as concern for its members one by one” might be true, but seems beside the point as the utilitarian does not claim only to show concern for the group. She claims also to show concern for each individual by, in Dworkin’s own words, “treat[ing] each person as an equal by valuing his pleasure (or happiness or welfare or success) equally.” It is true that the concern for the group and the concern for the individual are two sides of the same coin for the utilitarian, but that seems also to be the case for Dworkinian egalitarianism: its idea of showing equal concern to the group will just be respect for individual a, plus respect for b, plus respect for c, etc. Dworkin is an individualist, so his objection here cannot be that the group has a moral life of its own that the utilitarian overlooks. He may mean to gesture at a separateness of persons objection to utilitarianism, but that objection is typically directed at what Rawls calls “[t]he most natural way … of arriving at utilitarianism,” which “is to adopt for society as a whole the principle of rational choice for one man.”48 As Dworkin has made no reference to individual rationality in describing utilitarianism, and characterizes it as attempting to treat each person as an equal, it is hard to see how this objection might be relevant. The final part of Dworkin’s objection is more troubling for utilitarians and, by extension, those who endorse utility as a value. They might fairly complain that utility is not really a commodity. But while Dworkin’s choice of words here could have been better, his objection does not rely upon making utility into something that matters only 48 John Rawls, A Theory of Justice, revised ed. (Oxford: Oxford University Press, 1999), pp. 23-4. 23 instrumentally, like corn or oil. The utilitarian claim is essentially that equal concern consists in refusing to discriminate between persons when it comes to allocating utility. But the thing that is being maximized is utility itself, “no matter in which person it resides,” as Dworkin puts it. And at least sometimes, the effects of this maximization, even if it is motivated by a particular idea of what equal concern consists in, seems substantively unequal. Dworkin has mentioned a clear example of this in earlier work. Utilitarians can argue with great plausibility that racial discrimination would usually fail to maximize happiness, but they cannot plausibly claim that utilitarianism displays opposition to discrimination in principle, and in all conceivable cases.49 We might grant that utilitarianism shows concern for persons—after all, utilitarianism counts the happiness of every individual, and that people are happy is a legitimate concern—but there is a case for saying that it does not show equal concern for persons. The same follows, mutatis mutandis, for utility. Consider again the distributions in equality versus utility (2, 2; 1, 5). If the second, unequal distribution is selected, the worse off persons at least have an argument for saying that they have not been shown equal concern. Though no truly canonical definition of equal concern is provided, in other contexts Dworkin treats it in a way that suggests it might be inconsistent with the second distribution. It is described as showing “equal concern for fate,”50 which suggests a focus on a concern with how individuals end up, in contrast to the second, ‘full respect’ principle’s focus on the means taken to get there. In that vein, Dworkin imagines the first principle being invoked in critique of 49 Dworkin, Law’s Empire, pp. 290-1. 50 Dworkin, Justice for Hedgehogs, p. 2, see also p. 352. 24 laissez-faire policies, with a member of the poor pointing out that “[t]here are other, more regulatory and redistributive, sets of laws that would put me in a better position. How can government claim that this system shows equal concern for me?”51 Given the need to also take into account the second principle, the full complaint of “people with little market talent or bad luck” is that laissez-faire policy “does not show equal concern, because a different economic arrangement is available that also satisfies the requirements of individual responsibility and that shows more appropriate concern for them.”52 They might plausibly say the same if the second distribution is favoured in equality versus utility on utility grounds. I think that there is something to the worse off’s complaint here, but it is not the whole story about equal concern. There is a second aspect to equal concern. Consider what those who would be better off in the second distribution might say were the first, equal distribution chosen. In what way does the selection of the first distribution show equal concern for their fate? It gives them two units, when they would have had five under the other available distribution. The justification for this is that it is necessary to give the other group an extra benefit, creating outcome equality. But the size of that benefit is only one unit, compared to the loss of three units of benefit that the first distribution imposes on one group. At least where the worse off group under a distribution containing much more advantage is not badly off in absolute terms, the better off can fairly ask why three units of advantage for them counts for less than one unit of 51 Dworkin, Justice for Hedgehogs, p. 3. 52 Dworkin, Justice for Hedgehogs, p. 363. 25 advantage for the others. They can claim, with some plausibility, that they have been discriminated against when it comes to assigning benefits. These considerations suggest the following claim: The second aspect of equal concern: equal concern is not satisfied where small benefits for some individuals (the worse off) are brought about at the cost of losing big benefits for others (the better off). Equal concern, and even equal concern for fate, are ambiguous enough that they can be interpreted as praising the selection of less advantage more evenly distributed in one regard, as the first aspect of equal concern requires, and as criticising that selection in another regard, as the second aspect requires. The fox can accommodate both aspects of equal concern. His response to the objection that utilitarianism might conceivably have results, such as racial discrimination, which evidently do not show equal concern, is that it is more precise to say that it reflects only one aspect of equal concern. It is for that kind of reason that the best account does not endorse full-blown utilitarianism. My kind of fox, at least, endorses both equality and utility as conflicting values, each reflecting one aspect of equal concern. Though they conflict, in the sense that sometimes one recommends one course of action, the other another course of action, they are complementary in the sense that they act as constraints on each others’ excesses. Our concern with equality will ensure that there is no possibility of racial discrimination, just as our concern with utility ensures that the well- being of the would-be better off is not disregarded. 26 The hedgehog may be appalled by this turn of events. The suggestion that equality and utility are values was bad enough, but now it is being claimed that this is because equal concern—a basis on which values are to be assessed—itself has two sides to it. What counterarguments might Dworkin advance here? A first, and obvious, strategy, given his general hostility to utilitarianism, would be to show that the second aspect of equal concern, which underpins the utility strand of the foxy position outlined above, is false. This approach says that the only valid complaint under the heading of equal concern comes where the worst off (or representatives) say “[t]here are other, more regulatory and redistributive, sets of laws that would put me in a better position. How can government claim that this system shows equal concern for me?” This view of equal concern as just a matter of maximizing the position of the worst off (maximining) is implausible both in general and, especially, as a defence of Dworkin’s position. Even if the reader is still drawn to maximining when considering equality versus utility (2, 2; 1; 5), it seems barely credible when considering ‘super equality versus utility’ cases (for instance, 2, 2; 1.9999, 10). Here maximin would be willing to forego a massive benefit for one group, for the sake of a barely noticeable benefit for another.53 Furthermore, Dworkin himself is committed to rejecting this monistic interpretation of equal concern. This is both in the obvious sense that he does not give maximin an explicit expression in his final principles, as Rawls famously does, 53 Were the ‘benefit’ merely instrumentally valuable, this might not seem unreasonable, as the benefit might then be subject to diminishing marginal returns, with the result that the transfer to the benefit of the worst off looks like better value. I should emphasize, then, that I use ‘benefit’ in a technical sense, as a placeholder for the reader’s favoured currency of justice—something which is presumably not merely instrumentally valuable and therefore not subject to diminishing marginal returns. 27 and the less obvious sense that Dworkin himself invokes a sense of equal concern which is relevantly similar to the second sense described above. In a discussion contrasting Rawls’ theory and his own, Dworkin argues that “a government that allows a much greater loss to fall on one citizen, in order to avert a much smaller loss for a second, would not be treating the former as an equal.”54 Similarly, in developing his own equality of resources, Dworkin asks whether this equality should be achieved ex post—that is, after the natural allocation of talents and disabilities, and the market allocation of resources and opportunities, have taken place. He objects that “the ex post approach, even so far as it is possible, is a very poor understanding of equal concern”.55 This is because “[a]ny community that undertook to spend all it could to improve the position of its blind or crippled members, for example, until further expenditure would not even marginally benefit them, would have nothing left to spend on anything else, and the lives of all other citizens would be miserable in consequence.”56 Clearly, Dworkin thinks that something other than how the worst off fare matters, as he objects to some expenditure that would benefit them. And the nature of his objection is very similar to that suggested by the second aspect of equal concern that I suggested above: a sole concern with the interests of the worst off will lead to disproportionate losses for the better off. His view seems, like mine, to say that equal concern is upset, in one regard, where small benefits for some individuals (the worse off) are brought about in favour of big benefits for others (the better off). 54 Dworkin, Sovereign Virtue, p. 115. 55 Dworkin, Justice for Hedgehogs, p. 358. 56 Dworkin, Justice for Hedgehogs, p. 359. 28 Now it is obviously a further jump from there, and one which I need not make, to claim that there is a significantly utilitarian branch to Dworkin’s thinking here.57 Although Dworkin may accept the general proposition of the second aspect of equal concern, he may say that, within his overall theory, some other aspect of equal concern— the first aspect, or something similarly non-aggregative—has much more weight. On this view, it is only where very disproportionately large losses for the better off follow from benefitting the worst off that the overall theory disapproves. This, and no more, is certainly what is suggested by his rather bluntly stated example of the “blind or crippled.” The utilitarian, by contrast, thinks that the second aspect of equal concern is the only aspect. She always objects when small benefits for some individuals are brought about in favour of big benefits for others, even if the difference in the size of the two sets of benefits is small. But while Dworkin may invoke the second aspect of equal concern more cautiously than the utilitarian, that does not change the fact that he endorses the second aspect to some extent. And as he endorses the second aspect, it is not plausible that he can resist my foxy defence of equality and utility on the basis that this aspect is false. It might be thought that he could resist it by claiming that only his particular restricted form of the second aspect of equal concern is plausible, but this approach faces two problems. First, Dworkin presents no arguments for it, and there is no obvious way of developing it. Second, as I do not propose utilitarianism, but only an equality-utility hybrid, I need myself only endorse the second aspect of equal concern in a restricted form. Having 57 For Dworkin’s rebuttals of a similar suggestion, see Sovereign Virtue, pp. 110, 116, 349-50. 29 granted that the bigness of benefits sometimes outweighs their distribution, Dworkin grants too much for the first counterargument that we have been considering. I move on, then, to consider a second counterargument that Dworkin might—and in this case, actually does—use to resist the idea that utility is a value as equality is. In earlier work he writes that a utilitarianism justified on grounds of equal concern “cannot coherently offer to compromise highest average welfare over a given population in the name of wealth equality or simple welfare equality.”58 This is on the basis that “[t]reating people as equals, on the utilitarian’s conception of equality, demands the highest aggregate welfare, and one cannot coherently treat people other than as equals in the name of some deeper conception of equality.”59 The wording of the final clause here is a little tricky. We should just set aside the notion that the non-utilitarian interpretation of equal concern is somehow ‘deeper’, as that is not part of the view I am defending—I treat equality and utility, and their respective supporting aspects of equal concern, as equally fundamental. I believe that the core of Dworkin’s objection is that the ‘partial utilitarian’ is, qua utilitarian, committed to maximizing welfare on equal concern grounds, but also, qua non-utilitarian, committed to not maximizing welfare on equal concern grounds, which he thinks is incoherent. But that is only an incoherent thought as long as we treat the two conflicting thoughts as absolute imperatives. If we instead say just that we have a pro tanto reason of equal concern to act in one way, and another pro tanto reason of equal concern to act in another, there is no incoherence: we just acknowledge that some non-conclusive but 58 Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), p. 274. 59 Dworkin, A Matter of Principle, p. 274. 30 relevant considerations support one action and others support another, and try to balance them against each other to come up with a practical solution. To reiterate, that such a process may be difficult is, both logically and by Dworkin’s own lights, no evidence that there is indeterminacy about what it is best to do. Dworkin might reply that the incoherence here is not a general problem of conflict, but specifically to do with the fact that this is an alleged conflict within equal concern, which is impossible. But such a reply would both assume what needs to be shown (that conflict within values is impossible) and be inconsistent with the dualism of Dworkin’s own interpretation of equal concern. This brings us on to a third counterargument. Dworkin claims that “much energy has been wasted by the defeating assumption that liberty, equality and democracy are criterial concepts that can be explicated through some neutral analysis that makes no assumption about their value or importance.”60 It is this conception of equality that “encourages the dismissive view that equality means flat equality—everyone having the same wealth throughout their lives—because no other definition is plausible if we take equality to be criterial.”61 Now clearly I have been assuming a fairly strict conception of equality. Although I have allowed for the possibility of departures from equality on account of responsibility considerations, I have been committed to the notion that equality would not allow inequality for the sake of larger benefits for the better off. So Dworkin might claim that it is only by making equality a very uncompromising doctrine, which does not value benefits unless they fall to the worse off, that I have been able to 60 Dworkin, Justice for Hedgehogs, p. 345. 61 Dworkin, Justice for Hedgehogs, p. 346. 31 show that equality needs a confederate such as utility. His ‘interpretative’ notion of equality, by contrast, builds in the full set of equal concern considerations. I can grant Dworkin this particular argument. If it succeeds, it only establishes Dworkin’s broader notion of equality as an alternative to an equality-utility combination. And establishing an alternative to a theory is not itself an argument against that theory. How might Dworkin provide the further argument to show that his alternative is better? One way is by appealing to Occam’s razor. Dworkin has one value, and I have two, so it might look like we should break any tie in favour of his theory, as it is simpler. But this is far from the truth. Though I have two values, they each have a relatively simple internal structure, while Dworkin’s is much more complex. Not only does he incorporate the same two kinds of considerations—corresponding to the two aspects of equal concern—that my overall theory appeals to in his one value, but his full theory has such complexities as hypothetical insurance markets, auctions, and the envy test, which do not have analogues in my theory.62 Although I doubt that it is a weighty consideration, parsimony, if anything, tells in favour of a combination of equality and utility. Another approach is to appeal to the fact that, on Dworkin’s view, equality is a value that should always be promoted, while in my view, equality’s prescriptions, though they are taken into account, will sometimes be overridden in practice. (This is certainly so in the ‘super equality versus utility’ cases that I mentioned earlier.) As equality is one of the great values of contemporary philosophy, and more importantly of modern societies, it might be thought a significant advantage of Dworkin’s theory that its allegiance to it is unconditional. 62 See especially Dworkin, Sovereign Virtue, ch. 2. 32 But it is unclear why it would be a good thing that some notion that has wide acceptance can be rendered so that it never admits of exceptions. For the theorist, the really important questions when deciding which values to support, and how much support they should have, is how far true they are, and how much good they do. In trying to show that equality is worthy of unconditional support, a liberal such as Dworkin cannot plausibly cite the status it happens to have in support of its truth and goodness. I cannot, then, detect any good argument for Dworkin’s view to be preferable to my position on account of the former’s apparent denial of utility as a value. III. PROCRUSTES I have defended the fox’s thesis that true values may conflict, with special reference to distributive justice. My specific claims are (1) that equality and utility may conflict with each other, and (2) that they both genuinely are values. The first part of the article considered the possibility of denying (1), mostly using the materials Dworkin provides when attempting to resolve another value conflict. The second part of the article considered Dworkin’s apparent denial of (2), specifically taking the form of the claim that utility is not a value. I found that the resistance to both of my claims can be overcome, and so the fox escapes unscathed. It is worth emphasizing that Dworkin defends a strong version of value holism. Weaker versions of hedgehoggery can accept my central claims. One such view accepts that there might be conflicts between values, but holds that these are resolved at a higher level of abstraction. For instance, a consequentialist might concede that the likes of honesty, kindness, and equality are genuine values that can conflict, while claiming that 33 there is a master value of Moorean good that conclusively resolves these conflicts.63 This view accepts my claims (1) and (2). The fox’s arguments against such a view would have to take a different form to those advanced here. Though Dworkin’s denial of value conflicts is a strong one, it retains some intuitive plausibility by retaining considerations typically associated with rival values. Most relevantly, while my view accommodates the first and second aspects of equal concern under the banners of equality and utility, Dworkin encompasses them under one expanded banner of equality. I will conclude by providing a brief sketch of a further argument that suggests that this position lacks a key advantage held by the fox.64 When we are confronted with a decision such as that of equality versus utility, we should be able to feel that we are pulled in two directions. There is something good about people on the whole faring better, and there is also something good about distributions being more equal. To deny that is to fail to recognize something that matters fundamentally. Dworkin acknowledges as much by appealing to both aspects of equal concern. So when we can have more advantage in our distribution, or more equality, but not both, we should feel at least a little conflicted, and we should be able to specify the source of that as a conflict between things that matter to us. The fox can have all of this: he may recognize equality and utility as values, he may feel some disappointment 63 See Donald Regan, “Value, Comparability, and Choice,” in Chang (ed), Incommensurability, Incomparability, and Practical Reason. 64 A similar argument is powerfully presented in Bernard Williams, “Liberalism and Loss,” in Mark Lilla, Ronald Dworkin, and Robert Silvers (eds), The Legacy of Isaiah Berlin (New York: New York Review of Books, 2001), pp. 100-2. 34 (though as I said, not blame) when he cannot have much of both, and he may know that this is because, on this occasion, his values pull in opposite directions. It is less clear how the hedgehog can tell a similar story. He does, of course, think that there is something good about distributions being more equal, and he also thinks there is, in some cases at least, something good about people on the whole faring better. But any explanation of what is happening in a situation where we can have one of these things, but not the other, must be strange. There is not a conflict between two values here, so what is there? Minow and Singer suggest that “[w]hat is at risk is sheer honesty about competing views and contrasting tugs on our perceptions and hearts.”65 This may slightly overstate the point. There can be a persisting conflict on the hedgehog’s view. But it must be within the value of equality. That is problematic in the first place because Dworkin seems to claim that such a conflict is incoherent. But even granting that there is such a conflict, the framework within which Dworkin must place it serves only to muddy the waters of moral discourse. For instance, if he wanted to give a principled explanation to congenitally disabled people of why it is that he is not going to give them a small benefit, because it comes at great cost to the rest of the community, what would he say? Dworkin might prefer to provide an explanation in terms of mechanisms such as the hypothetical insurance market, but these are not plausibly themselves values: they are just ways of thinking about the implications of values. On Dworkin’s view, such an explanation boils down to this: we are selecting a more unequal distribution rather than a more equal one 65 Martha Minow and Joseph William Singer, “In Favor of Foxes: Pluralism as Fact and Aid to the Pursuit of Justice,” Boston University Law Review, 90 (2010), 903-920, p. 907. 35 for the sake of equality.66 This adds insult to injury—the involuntarily worst off are not only denied resources, but in the name of the value on which they thought they could rely. Imagine a disabled person trying to formulate a response. Were the policy enacted by a fox, she could have said “you hold that equality has the weighting x and utility has the weighting y, but I propose that the justified weighting of utility is only z.” This is a clear and, as Dworkin says, familiar picture. But to the hedgehog, she has to say something like “you hold that equality type 1 has the weighting x and equality type 2 has the weighting y, but I propose that the justified weighting of equality type 2 is only z.” We should not rule out such revisionary treatment of concepts, but for them to be attractive we must first be shown that something was wrong with the more familiar conflict between equality and utility. We have not been shown that. These points are reinforced by revisiting Insuredland and Uninsuredland. On Dworkin’s view (as opposed to the Dworkinian view I considered earlier in relation to this case, which recognized utility as a value), one or other of Insuredland and Uninsuredland fully satisfies equality, and utility does not come into the picture. Suppose that it is Insuredland that satisfies Dworkin’s equality. In that case, a member of society who does not develop the disease, and who opposes the insurance premiums, cannot claim, if she is to address questions of value, that utility has been unduly overlooked. She must rather claim that equality type 2 has been unduly overlooked. But this seems 66 Were the disabilities in the example the result of choice, Dworkin might have been able to appeal to the second fundamental principle—that of full respect for responsibility. But it is specified that the disabilities are congenital and as such involuntary. 36 misleading as, intuitively, her claim does not seem to concern equality at all. She wants those who are better off already to be even better off. It seems much more intuitively sound to describe her objection as one from utility. If the person with the disease responds to her that the premiums should continue to be paid as equality should take precedence, that seems like a coherent response, not a category mistake as Dworkin has it. Dworkin anticipates the worry “that [y]ou might think me Procrustes, stretching and lopping conceptions of the great political virtues so that they neatly fit each other. I would then be achieving unity on the cheap: a meaningless victory.”67 He assures us that he “mean[s] to submit each of the political conceptions I describe to the test of conviction. I will not rely on any assumption that a theory is sound just because it fits with other theories we also find agreeable.”68 This assurance notwithstanding, I suggest that, as regards equality, Dworkin’s thought has this procrustean quality, which is attributable to his apparent denial of utility’s value. My combination of equality and utility may, then, be superior in one regard, and as we saw earlier, inferior in none. ACKNOWLEDGMENTS An earlier version of this article was discussed at a meeting of the theory group at the Department of Politics, University of Glasgow. I would like to thank the participants on that occasion, as well as the editors of Law and Philosophy and the anonymous referees, 67 Dworkin, Justice for Hedgehogs, p. 5. 68 Dworkin, Justice for Hedgehogs, p. 5. 37 who provided valuable comments. I am also grateful to the British Academy, who supported research for this article. Politics University of Glasgow, Glasgow, United Kingdom E-mail: carl.knight@glasgow.ac.uk Politics University of Johannesburg, Auckland Park, South Africa 
work_vwji4fzhzzab7mwzo4rd2okf3e	----	Journalists, War Crimes and International Justice                City, University of London Institutional Repository Citation: Tumber, H. (2008). Journalists, War Crimes and International Justice. Media War and Conflict, 1(3), pp. 261-269. doi: 10.1177/1750635208097051 This is the accepted version of the paper. This version of the publication may differ from the final published version. Permanent repository link: http://openaccess.city.ac.uk/14855/ Link to published version: http://dx.doi.org/10.1177/1750635208097051 Copyright and reuse: City Research Online aims to make research outputs of City, University of London available to a wider audience. Copyright and Moral Rights remain with the author(s) and/or copyright holders. URLs from City Research Online may be freely distributed and linked to. City Research Online: http://openaccess.city.ac.uk/ publications@city.ac.uk City Research Online http://openaccess.city.ac.uk/ mailto:publications@city.ac.uk Journalists, War Crimes and International Justice Howard Tumber In recent years globalisation and changes in international policy have put issues of global governance, universal principles of human rights and internationalism in trade, social and security policies on the agenda (International Council on Human Rights Policy, 2002). Both awareness and prosecution of war crimes has become widespread (see Gutman and Rieff, 1999; Robertson, 2002) and the advent of the International Criminal Court, which entered into force in July 2002, has put the issue centre stage (see Schabas, 2003). It was after the Nuremberg and Tokyo trials following the end of World War 11 that pressure for the creation of an international court to deal with prosecuting people for crimes against humanity began to gain momentum. However, it was not until the forty- fourth session of the General Assembly in 1989, that work began on drafting proposals for the creation of a permanent international court to deal with the international drug trade. In the interim, the UN Security Council created several ad hoc tribunals to try war criminals in the former Yugoslavia and Rwanda setting up the International Criminal tribunal for the former Yugoslavia (ICTR) in 1993 and the International Criminal tribunal for Rwanda (ICTR) in 1994. Their brief was to try individuals for grave breaches of the Geneva conventions of 1949 including genocide and crimes against humanity. Despite many countries opposition to the setting up of an International Criminal Court on the grounds of potential political prosecutions, interference with national sovereignty, and insufficient checks and balances on the authority of judges and prosecutors, there was comparatively little resistance to the setting up of the ad hoc tribunals. The USA, for example, strongly opposed to the IIC has contributed financially to the ICTY and ICTR. Some journalists took a moral stance towards their reporting of the conflicts in Bosnia and Rwanda. Journalists such as the National Public Radio’s Tom Gjelten, CNN’s Christine Amanpour and the BBC’s Martin Bell made a distinction between objectivity and neutrality arguing that accurate reporting demands determining responsibility. According to their detractors, reporters such as Amanpour and Bell often demonised the Serbians, underreported atrocities by the Muslims and Croats and their partisan reporting 2 on Bosnia did a disservice to the public. Reports subsequently showed, though, that the Serbians carried out 90% of the aggression (Moeller 1999: 261) Critics of the media coverage of Bosnia and later Kosovo condemn the ‘journalism of attachment’ claiming that is it part of the broader human rights discourse which legitimises barbarism. Hammond, for example, argues: ‘Instead of truthful reporting, the agenda of advocacy journalism has sometimes made reporters highly selective, leading them to ignore inconvenient information. Rather than exercising critical independence, advocacy journalism has frequently coincided with the perspectives and policies of powerful Western governments. In addition, despite claims to be pursuing a moral, human rights agenda, the journalism of attachment has led to the celebration of violence against those perceived as undeserving victims’. Hammond accuses the ‘advocacy’ journalists covering Bosnia of helping ‘to create a climate in which NATO bombing and a US-sponsored Croatian offensive against Serb civilians were seen as a welcome change from neutral humanitarianism and a helpful step toward a resolution of the conflict. Their colleagues did something very similar in Rwanda’ (Hammond 2002: 9). These critics have in turn been accused of historical denial presenting itself in terms of historical revisionism a commonplace stance in relation to the wars that accompanied the collapse of Yugoslavia. Campbell, for instance, suggests that this ‘is part of an overall argument which attempts to revise the understanding of the Bosnian war by denying the nature, extent and purpose of the violence in the Bosnian Serbs’ ethnic-cleansing strategy’ (Campbell 2002: 164) Though the term ‘journalism of attachment’ emerged in the 1990s during the period of these conflicts, debate about ‘participatory’ journalism has raged for decades (see Knightley 2003; Morrison and Tumber 1988). However, the decision whether to testify is not a determining factor of commitment since other constraints such as employment restrictions and legal restraints may be operating. Journalistic engagement, though, can take other forms. A number of European journalists and documentary film makers willingly testified before the war crimes tribunals for Yugoslavia and Rwanda in contrast to US journalists who it was assumed tended to see the subpoena power of the tribunals as a threat to first 3 Amendment freedoms. The case of Jonathan Randal refusing to appear before the ICTR epitomised the apparent differences between the two occupational groups. However, from discussions and interviews with investigators and lawyers involved in both the ICTR and ICTY; and with journalists and lawyers from news organisations involved, the divide – at least between journalists - is not so apparent. It is fairly safe to assume that news organisations in the US are more concerned about their employees involvement in testifying in tribunals than their UK counterparts but journalists’ willingness to engage with, and in some cases assist, investigators indicates little, if any, difference between journalists on the two sides of the Atlantic. The differences are not about assisting the tribunals but about appearing to do so in public by appearing and testifying as witnesses. Some US journalists aided the investigators who contacted them, answering questions and providing information, and agreed verbally to testify if necessary. Most of them though, were not called upon to do so. The BBC reporter Jackie Rowlands was the first journalist to appear as a witness at Milosevics’s war crimes tribunal. The BBC was criticised by some of its former journalists for allowing its reporters to become ‘informants’. In response Rowlands issued a statement saying that ‘it was her strong wish to testify’ arguing that ‘I lived through so many momentous events with the people of the Balkans and felt this was something I ought to do – had to do… I don’t accept the argument that giving evidence will make life significantly more dangerous for journalists in the future.. I don’t believe that journalists are exempt from moral obligations or international justice (Day, 2002). Another high profile journalist to cooperate was Ed Vulliamy who covered the conflict in Bosnia for the Guardian newspaper. He testified against Tihomeir Blaskic, a former commander of Croatian forces in Bosnia. In relation to another case, Vulliamy gave the prosecution all his notebooks and told them everything he knew, as he wrote: ‘I threw aside any pretence of neutrality and went to The Hague. ‘The court needs reporters to stand by their stories under oath. The work of some journalists has already had an impact beyond mere ‘reporting’ in El Salvador, East Timor, Rwanda, the Balkans and elsewhere. Now we are entering a new world that seeks not only to report the legacy of tyrants and mass murderers, but to call them to account. My belief is that we must do our 4 professional duty to our papers, and our moral and legal duty to the new enterprise.’ ((Vulliamy, 1999: 605). The most high profile case of a journalist refusing to appear before an international court was that of Jonathan Randal of The Washington Post. In 2002, The ICTY subpoenaed Randal to testify in the trial of Radoslav Brdjanin, a Serb nationalist charged with genocide and deportation of non-Serbs during the 1992-95 war in Bosnia. Randal had interviewed Brdjanin in 1993 whilst on assignment in Bosnia and prosecutors for the tribunal wanted to introduce Randal’s article as evidence in the trial. Brdjanin’s attorneys told the tribunal that they would accept the article as evidence only if they could cross- examine Randal. The Washington Post, Randal’s former employer took over responsibility for the case telling him to say nothing and not to appear. In rejecting Randal’s plea not to appear before the tribunal, the court argued that the ‘objectivity and independence of journalists could not be hampered or endangered by their being called upon to testify, when this is necessary, especially in those cases where they have already published their findings. ‘No journalist can expect or claim that once she or he has decided to publish no-one has the right to question their report or question them on it. This is an inescapable truth and a consequence of making public one’s findings.” The tribunal also rejected the ‘safety argument’ about compromising Randal and other correspondents in combat zones. However on the question of protection of sources the Tribunal was sympathetic to journalists agreeing that subpoenaing a reporter to reveal confidential sources would be ‘a step in the wrong direction, a step backward, and a severe blow to the freedom of expression of journalists and the freedom of the media’ (Dias, 2002). Following this ruling, Randal appealed and was supported in his action by 34 international news, organisations, coordinated by the Committee to Protect Journalists. They filed an amici curiae brief which while supporting Randal, argued for a less demanding test for the qualified privilege to be granted. To compel testimony, the amici said, there must be a determination that the war correspondent’s evidence is absolutely essential to the case and the evidence cannot be obtained by other means (Spellman 2005: 132). The amici claimed the Trial Chamber’s test of pertinence was ‘so vague that it will inevitably lead to unease and confusion in the journalistic community and result in journalists being subpoenaed unnecessarily’ (Media Brief para 5 quoted in Spellman 2005: 5 132). While the safety of journalists and their sources was not part of the test urged by the amici, they said there was a deep concern ‘about any ruling that could result in compelling journalists – particularly war correspondents – to become witnesses against their sources, thus imperiling their access to information, their objectivity and even their safety’ (Ibid: 132). Randal’s attorneys argued that lawyers, priests and workers for the International Committee of the Red Cross are protected from testifying and the same protection and privilege accorded to these groups should be extended to journalists in order to give them a greater degree of safety while they are gathering information in war zones. The appeal judges ruled that Randal did not have to testify to the Court and that war correspondents should be given a limited exemption from being compelled to testify. Before calling a journalist to appear, the court must be convinced that the ‘evidence has a direct and important value in determining a core issue in the case’ and that there is no reasonable alternative for obtaining evidence (ICTY, 2002). There are few rules of journalism as sacrosanct as the protection of a confidential source. Protecting a confidential source is the one standard held sacred on both sides of the Atlantic. Despite the threat of fines or imprisonment, journalists will often, as a matter of principle, refuse to disclose their sources. The ability of whistle-blowers and other secret sources to tell their stories to the media, safe in the knowledge that their identities will never be revealed is seen as fundamental to the existence of a free press (see Trench, 2004). Any decision therefore on the part of the journalist to testify has implications for the source - journalist relationship. Following the Randal case, the adoption of a qualified testimonial privilege for war correspondents, particularly one that is not restricted to confidential sources and confidential information, is binding only on the ICTY. It will though, potentially have a significant impact as persuasive authority in other international courts and in national courts (Spellman 2005: 136). It is probable that it will be recognized by other war crimes tribunals and other future courts established by the United Nations (ibid: 136). The decision in the Randal case applies only to war correspondents and it is highly unlikely that judges of international or national courts are likely to consider it persuasive for 6 extending privilege to other journalists who want to avoid testifying about non- confidential sources or information (ibid: 136). The legacy of the Randal case is an interesting one in that its notoriety and end ‘result’ undoubtedly made prosecutors reluctant to subpoena journalists in other cases. Verification and the problems of engagement A particular line of attack on journalists who testified in the tribunals comes from defence lawyers who questioned their credibility as witnesses. In the ICTR trial of Kayishema and Rzindana, defence counsel, Andre Ferran accused Guardian reporter Chris McGreal and le Figaro journalist Patrick de Saint Exubery of exaggeration, sensationalism and second hand reports. Ferran accused Exupery of misquoting the number of militiamen and the population of the town in his articles and that the stories contained factual errors: ‘If he’s a war correspondent, if he wants to tell us the victims and the perpetrators of the crimes, then he should not be playing with the facts’. Ferran accused McGreal of taking ‘crude testimony’ and attacked his journalism stating ‘ ..he did not have the luxury, the desire or the time to cross check’. (see www.hirondell.org 1998). These kinds of accusations are hardly surprising coming from a defence attorney. In turn, journalists, including McGreal are vigorous in defending their roles. The problem for the journalistic profession is that it opens itself up to wider scrutiny. Journalists who testify not only have to stand up to interrogation by lawyers with regard to their own stories, testimony and witness statements, but also have to defend their profession. Defence lawyer Ferran, for example, stated in the above case ‘Journalism has never been the basis for justice and we are fortunate for this… judges should be aware of the gap between the truth and journalistic fabrications’ (www.hirondell.org 1998). Journalists’ engagement with survivors and witnesses of killings is an important issue and the setting up of war crimes trials and tribunals is altering the context in which journalists report on conflict. At war crimes trials, the testimony of witnesses interviewed previously by reporters is open to contestation. There is a paradoxical problem. On the one hand, journalists may be the first people to arrive at the scene of a killing and therefore vital in informing and alerting the world to what had transpired. The problems arise when different journalists ask the same questions to the same victims and witnesses. Investigators arriving on the http://www.hirondell.org/ http://www.hirondell.org/ 7 scene following the journalists then ask further questions. Witnesses become tired of relating their story to so many different people and often do not want to tell it again. A further problem exists alongside that of the reluctant witness. The difference in the manner of a journalist questioning of a witness compared to that of an investigator can hamper a successful prosecution. Statements can then look inconsistent, and when the witness takes the stand, their testimony can be totally discredited by defence council. The more people who ask the same question, or even different questions, the greater the risk of contamination, and the undermining of a witness’s credibility. Without journalists calling attention to an issue, a potential war crime could remain hidden. The tribunals need the pressure put on by journalists to provide the stories to the international community who in turn can put pressure on the courts to take action. Journalists in this respect are extraordinarily useful, as are the NGOs, but maintaining the delicate balance between reporting and potentially interfering with a criminal investigation is a difficult task. Recommendations and guidelines for future trials and tribunals Richard Goldstone, first chief prosecutor of the United Nations ICTY for the former Yugoslavia acknowledges that the relationship between war correspondents and international courts has created a tension. He supports a law to protect journalists from becoming unwilling witnesses in situations that would place them or their colleagues in future jeopardy. ‘Not infrequently journalists come across evidence of war crimes - as eyewitnesses, in discovering a mass grave, or through being privy to statements made by commanders in the heat of the action.. if reporters become identified as would-be witnesses, their safety and future ability to be present at a field of battle will be compromised’ (Goldstone, 1999: 16) Human rights and news organisations are increasingly responsive to the need for awareness training regarding criminal investigations for journalists covering war crimes. 8 They highlight two areas: first, awareness of a potential crime scene and the need to photograph, film and record potential evidence and second, awareness of the complex problems associated with reporting victim and witness testimony. Achieving agreement amongst journalists on the issue of appearing as witnesses is not an easy task. The grid below sets out the scenarios. Yes to testifying No to testifying As an expert witness – for prosecution and defence? Journalist has to appear, to all sides of a conflict, to be objective, independent and determined to publish what he/she believes to be the truth. If a journalist had witnessed a war crime- but they should only appear as a witness to confirm what had already been published. The problem with this scenario is that journalists’ notes are not protected, and sources are not protected, There is no protection for journalists in the statutes of the tribunals. If correspondents appear as witnesses, there is the potential for sources to dry up, refusals for interviews with protagonists, and increase in danger if they or other journalists return to the area. References Campbell, D. (2002) Atrocity, memory, photography: imaging the concentration camps of Bosnia – the case of ITN versus Living Marxism, Part 2. Journal of Human Rights, Vol 1, No. 2 (June) 143-172. Day, J. (2002) ‘BBC journalists ‘compromised’ by appearing as witnesses’, http://media guardian.co.uk/broadcast/story/0,7493,793883.00.html. Dias, M. (2002) ‘U.N. war tribunal’s ruling leaves reporters vulnerable to subpoenas’, http://www.rcfp.org/news/mag/26-3/con-unwatri.html http://www.rcfp.org/news/mag/26-3/con-unwatri.html 9 R. Goldstone, ‘Foreword,’ in Gutman, R. and D. Reiff (1999) Crimes of War, London: W.W. Norton & Company 15-16. Gutman, R. and D. Reiff (1999) Crimes of War, London: W.W. Norton & Company. Hammond, P. (2002) Moral combat: Advocacy Journalists and the New Humanitarianism, http://myweb.1sbu.ac.uk/phillip-hammond/2002.html. Foundation Hirondelle, Information, Documentation and Training Agency, Arusha: ICTR, www.hirondell.org 1998. ICTY, (2002) ‘The Prosecutor V. Radoslav Brdjanin & Momir Talic “ Randal Case”, Chambre D’Appel, Press release, http://www.un.org/icty/pressreal/p715-e.htm International Council on Human Rights Policy (2002) Journalism, media and the challenge of human rights reporting, Versoix, Switzerland: International Council on Human Rights Policy. Knightley, P. (2003) The First Casualty, John Hopkins. Moeller, S. D. (1999) Compassion Fatigue, NY: Routledge. Morrison, D.E. and Tumber H. (1988) Journalists at War, London: Sage. Robertson, G. (2002) Crimes Against Humanity, 2 nd ed., London: Penguin Books. Schabas, W. A. (2003) An Introduction to the International Criminal Court, Cambridge: Cambridge University Press. Spellman, R. L. (2005) Journalist or Witness? Gazette Vol 67 No. 2 April pp 123-139. Vulliamy, E. (1999) ‘Neutrality’ and the Absence of Reckoning: A Journalist’s Account, Journal of International Affairs, Spring, 52, no 2. pp 603-620. http://www.hirondell.org/ http://www.un.org/icty/pressreal/p715-e.htm 
work_vzetpwffobf5jpxsvrveyl75ka	----	The Medical Journal of Australia MJA • Volume 186 Number 11 • 4 June 2007 557 E D I T O R I A L S the human papillomavirus immunisation program. The new National Bowel Cancer Screening Program requires community and professional education, a patient registry to ensure follow-up, and extra resources and minimum standards to meet increased colonoscopy demand. This will test the shared responsibilities for health care between national and state/territory governments — a potential barrier to efficient health policy implementation. The community must also understand that an ineffective screening test — one that evidence shows lacks the specificity and sensitivity to reduce cancer mortality on a population basis — is worse than no test at all, as the false positives and negatives can lead to poorer health outcomes than would surveillance on a case-by-case basis. The key is ensuring that evidence guides the implementation of government-funded measures aimed at cancer prevention and early detection — at a time when we could prevent well over a third of all cancer deaths in Australia using existing prevention and early detection technology. By investing more taxpayer funds in the high proven returns of cancer prevention and early detection, we could make resources available to better support the significantly increasing numbers of new cancer patients associated with popula- tion ageing over the coming years. Savings generated through improved prevention could also fund targeted cancer research to help further reduce the impact of cancer in the future. Increasing the cancer workforce, and improving workforce training and support through a more integrated approach across jurisdictions, is also pivotal to ensuring we can provide optimal multidiscipli- nary cancer care to meet the challenges of the future. Author details Ian N Olver, MD, PhD, FRACP, Chief Executive Officer The Cancer Council Australia, Sydney, NSW. Correspondence: ian.olver@cancer.org.au References 1 Ross JS, Schenkein DP, Pietrusko R, et al. Targeted therapies for cancer 2004. Am J Clin Pathol 2004; 122: 598-609. 2 Quackenbush J. Microarray analysis and tumour classification. N Engl J Med 2006; 354: 2463-2472. 3 Smith L, Lind MJ, Welham KJ, Cawkwell L; Cancer Biology Proteomics Group. Cancer proteomics and its application to discovery of therapy response markers in human cancer. Cancer 2006; 107: 232-241. 4 Access Economics. Exceptional returns: the value of investing in health R&D in Australia. Canberra: Australian Society for Medical Research, 2003. 5 Australian Institute of Health and Welfare. National public health expenditure report 2004–05. Health and Welfare Expenditure Series No. 29. (AIHW Cat. No. HWE 36.) Canberra: AIHW, 2007. 6 Begg S, Vos T, Goss J, et al. The burden of disease and injury in Australia, 2003. Canberra and Brisbane: AIHW and University of Queensland, 2007 [in press]. 7 Australian Institute of Health and Welfare. 2004 National Drug Strategy Household Survey: first results. (AIHW Cat. No. PHE 57.) Canberra: AIHW, 2005. 8 VicHealth Centre for Tobacco Control. Tobacco control: a blue chip investment in public health. Melbourne: Anti-Cancer Council of Victoria, 2003. 9 Applied Economics. Returns on investment in public health: an epidemi- ological and economic analysis. Canberra: Commonwealth Department of Health and Ageing, 2003. 10 Australian Bureau of Statistics. National Health Survey: Aboriginal and Torres Strait Islander results, Australia, 1995. (ABS Cat. No. 4806.0.) Canberra: ABS, 1999. 11 Australian Electoral Commission. 2005/06 annual financial disclosure returns. Canberra: AEC, Jan 2007. 12 International Agency for Research on Cancer. IARC handbooks of cancer prevention. Vol. 6. Weight control and physical activity. Lyon: World Health Organization, 2002. 13 Shields M. Nutrition: findings from the Canadian Community Health Survey. Issue No. 1. Overweight Canadian children and adolescents. Component of Statistics Canada Catalogue No. 82-620-MWE2005001. Ottawa: Statistics Canada, 2005. ❏ Rheumatic fever and social justice Alex Brown, Malcolm I McDonald and Tom Calma High rates of this disease are the face of Indigenous disadvantage hile acute rheumatic fever (ARF) has become a rare curiosity in Australia’s non-Indigenous population, its incidence in Indigenous Australians living in remote areas remains among the highest reported in the world. It is unlikely that such a stark contrast between two populations living within the same national borders exists for any other disease or on any other continent. The new evidence-based review and guideline for diagnosis and management of ARF and rheumatic heart disease (RHD) is an important tool for clinicians who care for Indigenous Australians (page 581).1 But the guideline also prescribes a clear course of action for health policymakers. It makes a compelling case for focusing on the provision of secondary prophylaxis via coordi- nated, register-based RHD control programs that have guaranteed long-term funding. At the minimum, programs are needed in the Top End of the Northern Territory, Central Australia (including areas of South Australia and Western Australia near the NT border), northern WA, and northern Queensland. Other jurisdic- tions may also require control programs, but further disease burden data are needed to establish this. It is critically important to ensure that people with ARF and RHD receive good treatment and preventive care. But let’s not lose sight of the main game. Treatment of ARF and RHD, and secondary prevention-based control programs, are bandaid solu- tions to an underlying tragedy. ARF and RHD are classic diseases of social injustice. The past 50 years have witnessed dramatic declines in the prevalence of ARF and RHD throughout the industrialised world, resulting mainly from improvements in living conditions, socioeconomic condi- tions, sanitation and medical care, and from reduction in house- hold crowding.2 Unfortunately these improvements are yet to be seen among a number of populations defined by socioeconomic status, ethnicity or geographical location.3 In essence, ARF and RHD are not only diseases exclusively borne by the disadvantaged, W 558 MJA • Volume 186 Number 11 • 4 June 2007 E D I T O R I A L S but also key indicators of disadvantage itself. In remote Australian Indigenous populations, the effects of disadvantage are so entrenched that it is likely to take several generations, and steadfast political will, before they are overcome. Rates of death from RHD among Aboriginal people in the Top End of the NT exceed those reported in many industrialised countries over a century ago.4 There is little or no evidence of improvement over at least the past three decades.5 As a conse- quence, Indigenous Australians continue to die before their time from a highly preventable, highly treatable and completely avoid- able illness.4 Ongoing disparities in the burden of ARF and RHD reflect a number of failures in the development and delivery of health and health-related services. Failure to provide secondary prophylaxis can be due to missed diagnoses, poor continuity of care, a lack of trust and communication between patients and care providers, high staff turnover, a lack of appropriate health education, and, perhaps most importantly, a lack of political and bureaucratic commitment to solving the problem. Failure in primary prevention of ARF and RHD (ie, in preventing the acquisition of group A streptococcal infections) reflects the failure to provide Indigenous communities with the appropriate type and level of housing and environmental conditions that all Australians should expect. The federal government has targeted a 50% reduction in death due to RHD by 2008.6 While this is an unrealistic expectation, significant achievements are possible within the short to medium term, as has been witnessed with comprehensive approaches to control of ARF and RHD in the French Caribbean7 and with the establishment of register-based ARF/RHD control programs across New Zealand.8 Perhaps the most frustrating thing is that prevent- ing premature death due to RHD is more achievable than solving an ever expanding list of other health and social problems facing Indigenous Australians. To prevent premature death due to RHD, a number of concrete steps must be taken. Firstly, we must commit to alleviating the underlying socioeconomic determinants of ARF and RHD. The most important of these determinants — overcrowded housing — is also the easiest to address, but requires a dramatically greater investment by governments than we are currently seeing. A recent study confirmed the extreme levels of household crowding experi- enced in many remote communities:9 in two large NT Aboriginal communities, the median number of people per house was 17 and 14, respectively, with a median of 6.9 and 7.5 people per bedroom, respectively. Secondly, we must ensure that each person with a history of ARF or RHD receives appropriate care. This entirely achievable goal would prevent Aboriginal children dying unneces- sarily from this disease. Thirdly, we must ensure that political will delivers the deliverable and prevents the preventable. As long as modern Australia continues to accept the large and growing health and social disparities experienced by its Indigenous people, it fails in its duty to protect and provide for the most vulnerable. Will we be brought to account for our failure to deal with these disparities, or will cries for justice be silenced, as has happened with so much of the history of Australia’s first people? Author details Alex Brown, BMed, MPH, FCSANZ, Head1 Malcolm I McDonald, FRACP, Senior Research Fellow2 Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner3 1 Centre for Indigenous Vascular Research, Baker Heart Research Institute, Alice Springs, NT. 2 Menzies School of Health Research, Institute of Advanced Studies, Charles Darwin University, Darwin, NT. 3 Human Rights and Equal Opportunities Commission, Sydney, NSW. Correspondence: alex.brown@baker.edu.au References 1 Carapetis JR, Brown A, Wilson NJ, Edwards KN, on behalf of the Rheumatic Fever Guidelines Writing Group. An Australian guideline for rheumatic fever and rheumatic heart disease: an abridged outline. Med J Aust 2007; 186: 581-586. 2 Quinn R. Comprehensive review of morbidity and mortality trends for rheumatic fever, streptococcal disease, and scarlet fever: the decline of rheumatic fever. Rev Infect Dis 1989; 11: 928-953. 3 Carapetis JR, Steer AC, Mulholland EK, Weber M. The global burden of group A streptococcal diseases. Lancet Infect Dis 2005; 5: 685-694. 4 Carapetis JR, Currie BJ. Mortality due to acute rheumatic fever and rheumatic heart disease in the Northern Territory: a preventable cause of death in aboriginal people. Aust N Z J Public Health 1999; 23: 159-163. 5 Carapetis JR, Wolff DR, Currie BJ. Acute rheumatic fever and rheumatic heart disease in the Top End of Australia’s Northern Territory. Med J Aust 1996; 164: 146-149. 6 Office of Aboriginal and Torres Strait Islander Health. National perform- ance indicators and targets for 1998–2000 to monitor governments’ efforts to improve Aboriginal and Torres Strait Islander health. Canberra: OATSIH, Commonwealth Department of Health and Aged Care, 1998. 7 Bach J, Chalons S, Forier E, et al. 10-year educational programme aimed at rheumatic fever in two French Caribbean islands. Lancet 1996; 347: 644-648. 8 Thornley C, McNichols A, Baker M, Lennon D. Rheumatic fever registers in New Zealand. N Z Public Health Rep 2001; 8: 41-44. 9 McDonald MI, Towers RJ, Andrews RM, et al. Low rates of streptococcal pharyngitis and high rates of pyoderma in Australian aboriginal commu- nities where acute rheumatic fever is hyperendemic. Clin Infect Dis 2006; 43: 683-689. ❏ 
work_w5ndooj2jbd6rjo2mltupvgply	----	Justice for the Crowd: Organizational Justice and Turnover in Crowd-Based Labor administrative sciences Concept Paper Justice for the Crowd: Organizational Justice and Turnover in Crowd-Based Labor Xiaochuan Song 1,* , Graham H. Lowman 2 and Peter Harms 3 1 Business Department, Misericordia University, Dallas, PA 18612, USA 2 Michael A. Leven School of Management, Entrepreneurship and Hospitality, Kennesaw State University, Kennesaw, GA 30144, USA; glowman@kennesaw.edu 3 Department of Management, University of Alabama, Tuscaloosa, AL 35487, USA; pdharms@cba.ua.edu * Correspondence: xsong@misericordia.edu Received: 4 November 2020; Accepted: 14 November 2020; Published: 23 November 2020 ����������������� Abstract: Crowd-based labor has been widely implemented to solve human resource shortages cost-effectively and creatively. However, while investigations into the benefits of crowd-based labor for organizations exist, our understanding of how crowd-based labor practices influence crowd-based worker justice perceptions and worker turnover is notably underdeveloped. To address this issue, we review the extant literature concerning crowd-based labor platforms and propose a conceptual model detailing the relationship between justice perceptions and turnover within the crowd-based work context. Furthermore, we identify antecedents and moderators of justice perceptions that are specific to the crowd-based work context, as well as identify two forms of crowd-based turnover as a result of justice violations: requester and platform turnover. In doing so, we provide a novel conceptual model for advancing nascent research on crowd-based worker perceptions and turnover. Keywords: crowd-based labor; organizational justice; compensation; evaluation; communication 1. Introduction Organizations are faced with an ever-growing challenge to acquire human resources (Chambers et al. 1998). One recent development in addressing this challenge has been to eschew traditional human resources acquisition models and employ a more task-based approach to acquire human resources, that is, instead of hiring permanent employees, organizations contract temporary workers to complete particular tasks or projects (e.g., Segal and Sullivan 1997). The development of the internet and online payment systems have made it possible for organizations to tap into the temporary workforce by going beyond conventional sources, such as staffing agencies or employment centers (Sundararajan 2016). In particular, the “crowd” has become a new source for organizations to capitalize on flexible labor exchange, where the crowd consists of individuals that work outside of organizational boundaries (Barnes et al. 2015), and organizations that assign work to the crowd (i.e., crowdwork) are considered to be utilizing “crowd-based labor” (Howe 2006). Despite the promise associated with using crowd-based labor, the influence of crowd-based labor practices and policies on crowd-based labor has rarely been investigated. This is particularly true regarding crowd-based labor turnover, which is considered an especially high risk associated with utilizing the crowd as a substitute for the traditional workforce (Chandler et al. 2013). In this review, we contribute to crowd-based labor literature by detailing the nature of this new human resource acquisition technique and discussing the implications of its application for perceptions and behaviors of working individuals within crowd-based labor. We accomplish this by employing an organizational justice framework, which refers to individuals’ perceptions and attitudes towards policies, practices, and activities that are initiated and implemented within an organization Adm. Sci. 2020, 10, 93; doi:10.3390/admsci10040093 www.mdpi.com/journal/admsci http://www.mdpi.com/journal/admsci http://www.mdpi.com https://orcid.org/0000-0001-7969-7215 https://orcid.org/0000-0003-1440-4623 http://dx.doi.org/10.3390/admsci10040093 http://www.mdpi.com/journal/admsci https://www.mdpi.com/2076-3387/10/4/93?type=check_update&version=2 Adm. Sci. 2020, 10, 93 2 of 37 (Greenberg 1987; Cropanzano et al. 2001b; Colquitt 2001). Using this framework, we discuss how to integrate prior research and theory in the organizational justice domain with crowd-based worker experience and their interaction with crowd-based labor requesters, as well as how these interactions influence crowd-based labor turnover. 2. Literature Review Traditional human resource acquisition techniques include employee referrals, direct applications, college placement office/employment agencies, job fairs, and media advertisements (Breaugh et al. 2003). More recently, organizations have started to acquire human resources via online platforms that enable access to the crowd (Kittur et al. 2013), a term used to describe a large network of people with varying levels of knowledge, skills, and abilities that operate outside of the hiring organization (Howe 2006; Nakatsu et al. 2014). Internet-enhanced work systems and online payment methods have enabled organizations to capitalize on the crowd as a new source of flexible labor exchange to acquire human resources (Barnes et al. 2015). The combination of the crowd with labor exchange is generally defined as “crowd-based labor”, which represents a workforce that organizations can use to solve labor shortages by transferring tasks traditionally performed by their employees to a network of people outside of the organization (Howe 2006). In order to adequately evaluate crowd-based labor as a means of supplementing traditional human resource practices, it is imperative to first define several key terms in the crowd-based labor domain, including crowdsourcing, crowdwork, requesters, workers, and gig work. Crowdsourcing describes the process of acquiring labor from the crowd, which is the term used to describe the general external network of individuals available for hire (Howe 2006). In this way, crowdsourcing provides access to the broad knowledge base of the crowd in an open call format; furthermore, those participating in the crowd can choose to work spontaneously upon the receipt of these open calls (Dissanayake et al. 2015; Howe 2006). In this way, crowdsourcing can be considered a process by which external human intelligence can be harnessed (Zheng et al. 2011) to perform diverse tasks (Mao et al. 2013). As a subset of crowdsourcing in the business domain, crowdwork represents the application of crowdsourcing within the business setting (Schulte et al. 2020), which relies on online platforms as virtual locations that allow for requesting organizations (i.e., requesters) and the participating workforce (i.e., workers) to engage in labor exchanges in such a way that requesters post tasks on platforms and workers take and finish tasks in return for financial compensation (Boons et al. 2015). By utilizing crowdsourcing, crowdwork allows requesters to arrange their work over the Internet by assigning the jobs to a crowd of individuals who are not formally affiliated with the organization (Boons et al. 2015), for the purpose of leveraging workers’ dispersed knowledge, skills, and abilities via Internet-mediated platforms (Brabham 2008, 2013; Gassenheimer et al. 2013). As the application of crowdsourcing has expanded to multiple types of tasks (Nakatsu et al. 2014) and multiple business sectors across nations (Mandl et al. 2015), crowdwork has split into two general categories based on the way services are delivered (Fernández-Macías 2017). These categories include online-based service delivery operated and controlled by online platforms (i.e., Amazon MTurk) and offline-based service delivery operated and controlled by online platforms (i.e., TaskRabbit). Noteworthy in Fernández-Macías (2017)’s categorization is that the author used “crowd work” to describe online-based service delivery and “gig work” to describe offline-based service delivery. More recently, instead of describing offline-based service delivery only, Duggan and colleagues (Duggan et al. 2020) used the term “gig work” to describe all types of crowdwork, both online- and offline-based. Specifically, these authors provided three categories based on platforms, including (1) Capital platform work, which includes work related to selling products or leasing physical assets via platforms (e.g., Airbnb and Etsy); (2) Crowdwork, which includes work assigned to a geographically dispersed crowd via platforms (e.g., Amazon MTurk and Fiverr); and (3) App work, which includes offline work provided on-demand, with requesters and workers connected via platforms (e.g., TaskRabbit, Uber, and Lyft). Compared to Fernández-Macías (2017)’s categorization, which termed Adm. Sci. 2020, 10, 93 3 of 37 online-based service as “crowd work” and offline-based service as “gig work,” Duggan et al. (2020) considered “gig work” to be an overarching term that covers both online-based service (e.g., crowdwork) and offline-based service (e.g., capital platform work and app work). However, despite the different definitions of “gig work” provided by these authors, they converge in that online- and offline-based service represents the two main types of crowdwork. In a similar vein, Howcroft and Bergvall-Kåreborn (2019) expanded crowdwork categorization by introducing four types of crowdwork based on compensation and the initiating party, including Type A, online task crowdwork, such that workers finish microtasks (e.g., a smaller piece of task from a major project) and receive pre-specified compensation; Type B, “playbour” crowdwork, such that workers finish tasks for fun and enjoyment and instead of receiving financial compensation; Type C, asset-based services, such that workers deliver service offline by utilizing assets/equipment owned by them; and Type D, profession-based freelance crowdwork, such that workers in certain specializations provide professional services, which usually involves a higher level of knowledge, skills, and abilities. This categorization aligns with the two general types of crowdwork provided by Fernández-Macías (2017) as well, such that Type A and B belong to online-based service, Type C belongs to offline-based service, and Type D can be either online- or offline-based service. Table 1 provides a clear comparison of the works provided by these authors. Table 1. Categorization of Crowdwork. Fernández-Macías (2017) (The Author Termed Online-Based Work as “Crowd Work” and Offline-Based Work as “gig Work”) Duggan et al. (2020) (The Authors Used the Term “gig Work” to Describe All Three Types Below) Howcroft and Bergvall-Kåreborn (2019) Online-based work Crowdwork—tasks are assigned to and finished by a geographically dispersed crowd, with requesters and workers connected by online platforms. Type A work—tasks assigned to and finished by workers online. Type B work—“playbour” tasks assigned to and finished by workers online. Workers finish tasks primarily for fun and joy, instead of being compensated. Online- and/or offline-based work a Type D work—profession-based freelance work, with requesters and workers connected by online platforms. Workers deliver services either online or offline. Offline-based work Capital Platform Work—products sold or leased offline, with buyers and sellers connected by online platforms. Type C work—asset-based services, with requesters and workers connected by online platforms. Workers deliver service offline by utilizing assets/equipment owned by workers. App Work—tasks deployed to worker and finished offline, with requesters and workers connected by online platforms. a This category was not originally from Fernández-Macías (2017). Importantly, crowd-based labor is different from traditional outsourced-labor, in that the participating workforce within crowd-based labor comes from the general public with varying level of knowledge, skills, and abilities (Howe 2006), whereas the workforce associated with traditional outsourced-labor comes from one or multiple specific parties that are identified either through open competition or a bidding process (Lankford and Parsa 1999; Marjanovic et al. 2012). By looking at crowd-based labor from its source and purpose, it helps both academics and practitioners have a stronger understanding of crowd-based activities and their procedures. Adm. Sci. 2020, 10, 93 4 of 37 2.1. Key Elements of Crowd-Based Labor Recent literature has extensively examined crowd-based labor regarding who should be considered the crowd, how requesters and workers communicate, how workers receive compensation, and how work outcomes are verified (e.g., Estellés-Arolas and González-Ladrón-de-Guevara 2012; Hetmank 2013; Nakatsu et al. 2014). These studies, taken together, suggest the following key elements of crowd-based labor. The first element is crowd-based labor platforms, which are mediating platforms that connect workers and requesters. Since requesters and workers are dispersed, they need a connecting platform that spans beyond temporal, geographical, and organizational boundaries (Alberghini et al. 2013; Gregg 2010). As an alternative way to tap into external human resources, crowd-based labor platforms are virtual places that allow requesters and workers to connect virtually (Boons et al. 2015; Zhao and Zhu 2012) and aggregates human intelligence by utilizing the internet and communication technologies (Barnes et al. 2015). The second element is the worker’s professional profile. As noted earlier, crowd-based labor refers to a workforce that finishes tasks issued by requesters without having a formal employment contract. While debates and legal actions exist regarding how to classify crowd-based labor (Keith et al. 2020), according to the rules of behavioral control, financial control, and relationship type (Topic Number 762—Independent Contractor vs. Employee, Internal Revenue Service 2020), crowd-based labor is currently categorized as independent contractors, as they do not receive direct supervision or work-related materials from requesters nor have a formal employment contract with requesters. These rules are applicable and have been widely used by crowd-based labor platforms. The third element is the collective human intelligence. As an alternative way to tap into extra human resources, crowd-based labor platforms establish connections between requesting organizations and external human resources (Alberghini et al. 2013) by utilizing communication technologies (Barnes et al. 2015). By tapping into external human resources, crowdsourcing can generate a collective human intelligence that goes beyond the organization’s boundaries (Gregg 2010). The fourth element is the open call. As indicated earlier, it is the crowd that makes crowdwork distinct from conventional human resource acquisition techniques, because crowdwork is a practice that taps into the wisdom of a large crowd of diversified people (Howe 2009). As such, crowdwork is accessible to a broad participating workforce that has the potential to contribute in unique and various ways. Importantly, platforms can also set varying threshold levels for participating in a task (e.g., Amazon Mturk) so that workers take tasks based on their level of qualification or achievement in the past. With these elements in mind, we conducted a comprehensive review of crowdbased-labor platforms to inform our review and to identify areas in need of additional theorizing and research. 2.2. Review of Crowd-Based Labor Platforms Mediating platforms are the basis of any crowdwork because they connect workers and requesters (Boons et al. 2015; Zhao and Zhu 2012). Here, we examine existing business crowd-based labor platforms by reviewing their founding year, business model, compensation policy, payment procedure, performance evaluation methods, and platform-supported communication. Aguinis and Lawal (2013) reviewed several crowd-based labor platforms, such as eLance, oDesk, Freelancer, etc., however, given the fact that changes such as mergers and acquisitions are ubiquitous among crowd-based labor platforms, as well as the rapid expansion and development in this emergent sector (e.g., oDesk merged with Elance, and relaunched as Upwork in 2015; Freelancer acquired multiple CS platforms during the past decade, including GetAFreelancer, EUFreelance, LimeExchange, Webmaster-talk, vWorker, and Escrow during the past decade), our review revisits the extant platforms and provides an update to previous studies. To better understand crowd-based labor platforms, we conducted an inductive exploratory study on extant platforms. Inductive studies have been widely used by business researchers to form abstraction based on observing reality (Locke 2007) so that generalizing results and new patterns can be Adm. Sci. 2020, 10, 93 5 of 37 detected (Jebb et al. 2017) and new knowledge can be discovered beyond observation (Woo et al. 2017). By following best practices for inductive research (Woo et al. 2017), we examined existing business crowd-based labor platforms by comprehensively reviewing a variety of characteristics of platforms, including founding year, business model, compensation, policy, payment procedure, performance evaluation methods, and platform-supported communication. To conduct the platform review, we performed a comprehensive search for existing crowd-based platforms. As indicated earlier, works from Fernández-Macías (2017), Duggan et al. (2020), and Howcroft and Bergvall-Kåreborn (2019) provided comprehensive categorizations and clear direction for identifying platforms. Additionally, we primarily focus on general platforms (e.g., Fiverr, UpWork, and Freelancer) because these platforms have a higher level of worker representativeness (i.e., workers with a large variety of backgrounds, knowledge, skills, and abilities) and task comprehensiveness (i.e., a large variety of tasks posted by requesters). We conducted a platform search by using keywords provided by Fernández-Macías (2017), Duggan et al. (2020), and Howcroft and Bergvall-Kåreborn (2019), such as “freelancing”, “freelancer”, “crowd”, “crowdwork”, “crowd-based”, “crowdsource”, and “crowdsourcing”. Our search effort yielded over 100 platforms. After carefully reviewing these platforms, we excluded platforms based on the following exclusion criteria: (1) platforms that have been recently merged or purchased, such as CrowdFlower, oDesk, and Figure Eight; (2) non-profit platforms, such as Seed Company and Global Solution Networks because these platforms do not represent the labor exchange between requesters and workers; (3) platforms that provide workers with no direct financial compensation, such as Toluna because these platforms reward their participants with “reward points” instead of financial compensation, which is an important element of labor exchange (Barnes et al. 2015); (4) platforms that are not relevant to business crowd-based labor, such as GoFundMe; and (5) platforms that only provide offline-based service, such as Uber, Lyft, Airbnb, and Foodora as their platforms are out of our research focus of this review. Using these criteria, we identified 41 crowdsource-based labor platforms, which were reported in Table 2. 2.3. Platform Review Results Along with information provided in Table 2, some noteworthy characteristics warrant mentioning. First, the majority of the platforms were established after 2006, the year that the term “crowdsourcing” was coined by Jeff Howe. The platforms that were established before 2006 mainly focused on computer science-related work, such as Guru (formerly eMoonlighter), NineSigma, and TopCoder, whereas after 2006, the type of work available on platforms became more diversified, such as design, microtask, problem-solving, etc. Second, with regard to delivery methods, some platforms have extended to offline-based services or kept both online- and offline services simultaneously. These types of platforms require workers to go to local locations to finish tasks per requesters’ needs. Examples of this type of platform are TaskRabbit and Thumbtack. Third, with regard to tasks, the majority of the platforms focus on design, programming/coding, and professional freelancing work, which includes business-related work and technology-related work. Moreover, most of the work is marketplace-based, such that requesters post the tasks on the platform, and workers pick and choose the tasks that they are willing to work on. Once a task is taken by a worker it will not be available to others. Some platforms take a contest-based approach, such that a task can be taken by multiple workers simultaneously, and the requester picks and pays for a single worker’s submission of which they approve, and then disregards the remaining submissions. It can be inferred that the platforms that take a contest-based approach are exposed to more uncertainty, for their registered workers are less likely to have guaranteed compensation from requesters. Therefore, as shown in Table 1, many of the platforms with the contest-based approach may also have a marketplace-based approach simultaneously. Adm. Sci. 2020, 10, 93 6 of 37 Table 2. Summary of Extant Crowd-based General Labor Platforms (in the alphabetical order) a. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b Aileensoul 2017 Requesters will not need to pay the commission. Workers are compensated for the completion of tasks posted by requesters No escrow accounts Requester makes direct payment to the worker upon the completion of the task Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message ClickWorker 2005 Requesters will need to pay 40% of the compensation amount as commission to the platform The platform sets the minimum compensation rate Workers are compensated for the completion of their corresponding tasks posted by requesters. Requester makes the upfront payment to an escrow account held by either platform; the fund will be released to the worker upon the completion of the requested task Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message CloudPeeps 2015 Requesters will need to pay 5%–15% of the compensation amount as commission to the platform, plus 2.9% processing fees Requesters can also choose a subscription plan and pay a monthly fee to reduce the commission percentage Workers are compensated for completion of their corresponding tasks posted by requesters Workers can also be compensated on an hourly basis Requester makes the upfront payment to an escrow account held by either platform; the fund will be released to the worker upon the completion of the requested task Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Expert 360 2013 Requesters will not need to pay the commission; however, 15% of the total payment will be deducted from workers’ earnings and go to the platform Workers will receive compensation upon the completion of their corresponding tasks Requester makes direct payment to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Fiverr 2010 Requesters will not need to pay the commission; however, 20% of the total payment will be deducted from workers’ earnings and go to the platform Workers will receive compensation upon the completion of their corresponding task Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message FlexJobs 2007 Requesters will not need to pay the commission The requester needs to subscribe to the platform by paying a monthly fee Workers also need to subscribe to the platform by paying a monthly fee Workers will receive compensation upon the completion of their corresponding tasks Requester makes direct payment to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Adm. Sci. 2020, 10, 93 7 of 37 Table 2. Cont. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b Freelancer 2009 Requesters will not need to pay the commission, however, 3% of the compensation or $3 (or its approximate equivalent in other currencies) -whichever is greater - is collected by the platform when the workers are compensated Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks. Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Freelancermap 2011 Requesters will not need to pay the commission Workers need to subscribe to the platform by paying a monthly fee Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers Requester evaluates the work and decides compensation Rule-based Case-based In-site text message FreeUp 2015 Requesters will need to pay 15% of the compensation amount as commission to the platform Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Giggrabbers 2015 Requesters will not need to pay the commission; however, 9.5% of the total payment will be deducted from workers’ earnings and go to the platform Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Guru 1998 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Platform sets minimum compensation rate Workers will receive compensation upon the completion of their corresponding tasksRequesters can compensate workers on an hourly basis Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Idea Connection 2007 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Participants receive compensation upon solving the problems. Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Case-based In-site multi-media message Adm. Sci. 2020, 10, 93 8 of 37 Table 2. Cont. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b iJobDesk 2018 Requesters will need to pay 2% of the compensation amount as commission to the platform The platform sets the minimum compensation rate Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site text message InnoCentive 2001 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Case-based In-site multi-media message LocalLancers 2013 Requesters will not need to pay the commission Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers Requester evaluates the work and decides compensation Rule-based Case-based No in-site communication LocalSolo 2014 Requesters will not need to pay the commission The requester needs to subscribe to the platform by paying a monthly fee Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Case-based In-site multi-media message Mechanical Turk 2005 Requesters will need to pay 20% of the compensation amount as commission to the platform Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message MediaBistro 1999 Requesters will not need to pay the commission Requesters will need to pay for posting tasks on the platformWorkers will also need to subscribe to the platform by paying a monthly fee Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Micro Job Market 2018 Requesters will not need to pay the commission. Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers is out of the platform Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Adm. Sci. 2020, 10, 93 9 of 37 Table 2. Cont. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b MyRemoteTeam 2017 Requesters will not need to pay the commission Requester will need to subscribe to the platform by paying a monthly fee Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Nexxt 1996 Requesters will not need to pay the commission The requester needs to subscribe to the platform by paying a monthly fee Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message NineSigma 2000 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Participants will receive compensation when their proposals are accepted by the clients Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Case-based In-site multi-media message Oridle 2008 Requesters will not need to pay the commission Requesters will need to subscribe to the platform by paying a monthly fee Participants will receive compensation when their proposals are accepted by the clients Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based No in-site communication Project4Hire 2009 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Participants will receive compensation when their proposals are accepted by the clients Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message People PerHour 2007 Requesters will need to pay 10% of the compensation amount as commission to the platform Workers will receive compensation upon the completion of their corresponding tasks The compensation is paid on an hourly basis Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Prolific 2014 Requesters will need to pay 25% of the compensation amount as commission to the platform The platform sets the minimum compensation rate Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site text message Adm. Sci. 2020, 10, 93 10 of 37 Table 2. Cont. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b Rat Race Rebellion 1999 Requesters will not need to pay the commission Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers is out of the platform Requester evaluates the work and decides compensation Rule-based Case-based No in-site communication ServiceScape 2000 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks The requester needs to add a valid payment method before workers start works, workers will be paid upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Skip the Drive 2013 Requesters will not need to pay the commission The requester needs to pay to the platform for posting the task Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers is out of the platform Requester evaluates the work and decides compensation Rule-based Case-based No in-site communication Soshace 2013 Requesters will need to pay 10%–13% of the compensation amount as commission to the platform Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based No in-site communication Speedlancer 2014 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Thumbtack 2009 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Toogit 2016 Requesters will not need to pay the commission; however, an 8% “facilitator fee” will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Adm. Sci. 2020, 10, 93 11 of 37 Table 2. Cont. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b Toptal 2010 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Transformify 2015 Requesters will not need to pay the commission Requester will need to either subscribe to the platform by paying a monthly fee or make a one-time payment for a job posting Workers will receive compensation upon the completion of their corresponding tasks The requester needs to add a valid payment method before workers start works, workers will be paid upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Truelancer 2014 Requesters will not need to pay the commission; however, a certain amount of fee will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks. The platform sets the minimum compensation rate Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site text message UpWork 2015 Requesters will not need to pay the commission; however, 20% commission and 2.75% processing fees will be deducted from workers’ earnings Workers will receive compensation upon the completion of their corresponding tasks. The compensation can also be paid on an hourly basis Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Virtual Vocations 2008 Requesters will not need to pay the commission; however, workers need to subscribe for receiving task information Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers is out of the platform Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message WeWork Remotely 2010 Requesters will not need to pay the commission Requester will need to make a one-time payment for each job posting Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers is out of the platform Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message Adm. Sci. 2020, 10, 93 12 of 37 Table 2. Cont. Platform Name and Founding Year Platform’s Business Mode a Compensation Policy Payment Procedure Performance Evaluation Process Case-Based vs. Rule-Based Evaluation Platform-Supported Communication b Working Nomads 2014 Requesters will not need to pay the commission The requester needs to make a one-time payment for each job posting Workers will receive compensation upon the completion of their corresponding tasks Requester make direct payment to the worker upon the completion of tasks, the platform does not involve in payment to workers is out of the platform Requester evaluates the work and decides compensation Rule-based Case-based In-site multi-media message YunoJuno 2012 Requesters will need to pay the platform a certain amount of fee on top of the compensation amount that pays to workers. The fee rate depends on requesters’ subscription Workers will receive compensation upon the completion of their corresponding tasks Requester makes an upfront payment to an escrow account; the fund will be released to the worker upon the completion of tasks Requester evaluates the work and decides compensation Rule-based Case-based No in-site communication a. We made our best attempt acquire all available information from multiple sources in terms of commission, fees, etc., however, some platforms do not disclose this type of information. For these platforms, we used “in a certain amount” in the table. b. This column indicates the communication methods provided by the platform. It is also possible for requesters and workers to have direct communication without utilizing any platform-mediated methods (e.g., private chat). Adm. Sci. 2020, 10, 93 13 of 37 Fourth, with regards to earnings and profit, the vast majority of platforms maintain their operations and make profits by charging their clients (requesters) a percentage-based commission, ranging from 2% (iJobDesk) to 40 % (ClickWorker) of the compensation paid to workers by requesters. For example, UpWork charges 2.75% of the compensation that requesters pay to workers; this rate is 10% at Freelancer and 20–40% at Amazon MTurk, which charges an extra 20% when there are ten or more assignments within a task. Meanwhile, a small number of platforms paying workers on an hourly basis (e.g., PeoplePerHour). Moreover, some platforms charge fees for posting tasks on platforms (by requesters). In addition, some platforms do not charge any commission or fee from workers or requesters, instead, they require requesters or workers, or both parties to purchase subscriptions so that they can gain access to the platform. Fifth, the majority of platforms use escrow accounts, such that requesters need to pre-pay a certain amount before posting tasks (i.e., upfront payment to platforms). The funds deposited into an escrow account set up by the platform are then transferred to workers once the task is finished by workers and verified by the requester. Sixth, concerning work verification and evaluation, work is usually evaluated by either a case-based or rule-based evaluation method (Prentzas and Hatzilygeroudis 2009). Specifically, the case-based method is an evaluation method based on the specific circumstances of the task. For instance, a logo design task is evaluated by the extent to which the finished logo design can reflect requesters’ special needs (e.g., for business or a special event), and the evaluation is based on requesters’ previous experiences. In comparison, the rule-based method is an evaluation method that is based on a well-defined, universally accepted knowledge base that results in standardized rules and requirements that are widely accepted within a certain field (Dutta and Bonissone 1993). For instance, transcribing tasks have a general, universal rule—the number of typos in the finished transcription and all requesters that request transcribing tasks would take this evaluation approach. Seventh, a small portion of the platforms (e.g., Amazon MTurk and CrowdFlower) support the decomposition of jobs. Specifically, in these platforms, tasks can be decomposed into multiple smaller pieces (i.e., distributed work; Brabham 2008; or microtask, Howcroft and Bergvall-Kåreborn 2019), making it possible for multiple crowdsourcing workers to work on the same task simultaneously. This is what crowdsourcing researchers termed “modularity” or “granularity” (Baldwin and Hippel 2010; Cullina et al. 2015), which is important for collaboration because modularized work can be completed by multiple workers independently and in parallel, thus decreasing the complexity of each piece of work. Eighth, as the middle person that connects requesters and workers, platforms take different approaches to facilitating interactions between requesters and workers. For instance, the majority of platforms provide in-site, multi-media messaging systems with integrated voice and video communication for requesters and workers to discuss job specifications, work progress, work quality, and compensation. Some platforms (e.g., 99Designs and Thumbtack) allow requesters and workers to have direct real-time communication, while others (e.g., CrowdSpring and Guru) have direct communication but without real-time communication, and some platforms (e.g., Chaordix and SPIGIT) do not provide any direct communication channel. One interesting finding from the communication mechanisms is that direct communication between requesters and workers seems related to the performance evaluation method, such that direct communication is more likely to take place when a task is evaluated by using a case-based approach, whereas direct communication is less likely to take place when a task is evaluated by using a rule-based approach. One possible way to explain this finding is that case-based evaluation is less likely to include universally accepted criteria, making direct communication more necessary to supplement the case-based evaluation. Ninth, many platforms (e.g., Prolific and iJobDesk) employ a pre-screening processes for both requesters and workers to make sure qualified workers are recruited and tasks do not introduce risk to workers. Furthermore, some platforms have taken one step further by integrating quality control Adm. Sci. 2020, 10, 93 14 of 37 mechanisms to evaluate work (e.g., Appen, which is not included in Table 2), such that platforms can detect worker errors and notify requesters about potential quality issues. Lastly, many platforms offer to function as an arbitrator, such that when there is a dispute between a requester and a worker about task evaluation or compensation, the platform intervenes to investigate and resolve the dispute. 2.4. Benefits and Concerns of Crowd-Based Labor As demonstrated in the breadth of platforms identified and discussed above, crowd-based labor in the business context has attracted considerable attention over recent years (Simula and Ahola 2014). This is often attributed to the various benefits associated with using crowd-based labor, such as organizations gaining access to diversified knowledge and to new perspectives that that would otherwise be absent (Gassenheimer et al. 2013; Surowiecki 2005), acquiring information from a highly diversified and representative workforce (Behrend et al. 2011; Buhrmester et al. 2011; Gassenheimer et al. 2013; Paolacci et al. 2010), leveraging previously unattainable resource and build competitive advantages (Prpić et al. 2015), decreasing the possibility of making decisions based on groupthink and common information (Surowiecki 2005), and having a cost-effective method for dealing with human resource shortages (Acosta et al. 2013; Chaisiri 2013; Buhrmester et al. 2011; Irani 2013; Yuen et al. 2011). Additionally, from the workers’ standpoint, crowdwork makes it possible for workers to have a higher level of flexibility and latitude about working hours and work location so that a balance between work and life can be easily maintained. Crowdwork also brings a higher level of job variety so that workers can pick and choose their favorite work from platforms. Despite these benefits, concerns surrounding crowd-based labor are generally overlooked. These concerns have surfaced more recently as the use of crowd-based labor has continued to build in the business context. First, the use of monitoring and the feedback given to workers is relatively limited. As indicated earlier, workers are dispersed in different locations and connect to requesters through internet-mediated platforms. Because of this, it is difficult for requesters to monitor these workers’ activities effectively and provide feedback on time, reinforcing the possibility of low-quality work and limiting potential improvements in workers’ task effectiveness and efficiency (Askay 2017; Mao et al. 2013). Second, due to the absence of effective monitoring, some crowdsourcing workers may take advantage of the crowdsourcing system by engaging in character/identity misrepresentation (Sharpe-Wessling et al. 2017) and performing sloppy work intentionally (Eickhoff et al. 2012) to maximize compensation. These types of worker are referred to as “malicious workers” (Eickhoff et al. 2012). Third, many workers have limited access to regular jobs owing to a variety of internal and external circumstances (e.g., job market landscape, financial condition, flexibility, personal preference, Keith et al. 2020), and this means that they may have few other options outside of taking on crowdwork (Jäger et al. 2019). Consequently, under-compensation is a common issue within the business crowdwork environment. For instance, a large number of requesters are reported to take advantage of workers by underpaying them, such as paying below the minimum wage (Semuels 2018) or even refusing to pay by coming up with various reasons (e.g., qualification issues, response time, failing to pass attention checks, etc.) after workers have submitted completed tasks (Milland 2016). Compounding this, there are currently no laws or regulations to protect the rights of the participating workforce, making under-compensation and non-compensation almost a “common practice” implemented by many requesters and turning crowdwork into a precarious undertaking (Keith et al. 2020). 2.5. Crowd-Based Labor Concerns and Their Relation to Human Resource Management (HRM) Following our review of crowd-based labor and its characteristics, we posit that the concerns surrounding the participating workforce within crowdwork are primarily reflective of HRM issues because the participating workforce, in essence, is a human resource that goes beyond organizations’ Adm. Sci. 2020, 10, 93 15 of 37 boundaries. More specifically, from the standpoint of HRM, we propose these concerns can be categorized into three areas. First, workers in the traditional work context have agreed-upon pay rates that are clearly specified in employment contracts and protected by laws and regulations (e.g., minimum wage law). However, as noted earlier, workers in the crowdwork context do not have formal employment contracts, nor existing laws that protect their rights. In fact, Aguinis and Lawal (2013) posited that in the crowdwork context, workers’ compensation, to a large extent, is market-oriented, such that the pay rate is subject to requesters and crowd-based labor market conditions, making it favorable to requesters but unfavorable to workers. Second, within the crowd-based work context, it becomes challenging to implement performance evaluations in a way that mirrors the traditional work context. Extant literature has suggested that performance evaluation is a continuous process of identifying, measuring, benchmarking, and developing the performance of working individuals (Aguinis 2009; Aguinis et al. 2011). However, a continuous evaluation is difficult to maintain in the crowdwork context, due to the limited interaction between requesters and workers as well as requesters’ presence in the crowd-based labor process. This can make it difficult for workers to receive and heed feedback from requesters in a timely manner. Moreover, the shifting nature of tasks and clients means that it is difficult to build expertise based on feedback provided by requesters, with such expertise leading to better pay or more desirable crowd-based tasks from the requester in the future. Third, and compounding the difficulties surrounding continual evaluation, is the limited communication associated with the use of outcome-based evaluations, which often leads to dissatisfaction and a lack of organizational commitment in traditional work contexts (e.g., Campbell and Wiernik 2015) and is amplified in the crowdwork context. Taking Amazon’s Mechanical Turk (i.e., MTurk) as an example, requesters post tasks on the online platform, from which workers can pick various tasks from multiple requesters. When workers complete tasks, they submit work so that requesters can verify and evaluate the results, and then decide whether to pay the worker based on job quality. Workers may either receive financial compensation as the “reward” for desirable outcomes or receive no payment or even be blocked by requesters as “punishment” for undesirable outcomes. This outcome-oriented process further limits the number of available performance evaluation criteria that can be utilized for determining compensation, making performance evaluation in the crowd-based work context a single-sourced, outcome-based evaluation (Aguinis and Lawal 2013). The limited feedback and overemphasis on outcome-based evaluations also demonstrates the general lack of communication between requesters and workers, which can easily lead to confusion and ambiguity from the worker’s perspective. In a similar vein, from the standpoint of communication, crowdwork poses a challenge to human resource management as crowdwork is built upon physical distance, which negatively impacts platform-mediated communication between workers and requesters because the frequency of interaction decreases as physical distance increases (Latané et al. 1995). Moreover, miscommunication or misunderstanding increases when a mediating medium (e.g., an online platform) is present (Vukovic and Natarajan 2013). 2.6. Review of Organizational Justice The aforementioned HRM-related issues that are associated with compensation, performance evaluation, and communication influence workers’ perceptions of organizational justice. This is because organizational justice is based on the transaction-based relationship between workers and employers, with workers’ work inputs (e.g., energy, time, effort) being compared to the outputs given in exchange by the employer (e.g., compensation and benefits). From the workers’ perspective, this transaction-based relationship reflects the transactional contract that “involves specific monetizable exchanges” (Rousseau 1990, p. 391) between workers and employers. Take completing job tasks as an example, workers spend time, energy (e.g., manual or brainpower), and effort to finish job tasks, and receive economic and quasi-economic compensation when job tasks are Adm. Sci. 2020, 10, 93 16 of 37 completed (Cropanzano et al. 2001a). This exchange occurs due to the completion of specific job tasks being specified in the employment contract, implying that completing certain job tasks and receiving corresponding compensation are built upon a transactional relationship with mutual, contractual consent (Opsahl and Dunnette 1966). However, when employees perceive a violation in the transaction-based relationship terms of compensation results, compensation determination process, or communication/explanation of compensation, it leads to a psychological contract violation and employees experiencing a lack of justice. Research in organizational justice dates back to the early 1980s. For instance, Dworkin (1986) posited that justice is understood as the basis for societal and organizational legitimacy. More recently, Goldman and Cropanzano (2015) suggested that justice describes normative standards and how these standards are implemented, such that justice not only denotes conduct that is morally expected, but also refers to whether a decision-maker adheres to norms and rules. Similarly, Colquitt and Rodell (2015) suggested that justice is best considered as adherence to rules that reflect appropriateness, and the degree to which an organization or its top management is perceived to act consistently, equitably, respectfully, and truthfully when it comes to decision making. Generally speaking, organizational justice refers to individuals’ perceptions and attitudes toward the policies, practices, and activities that are implemented within organizations (Greenberg 1987; Cropanzano et al. 2001b; Byrne and Cropanzano 2001; Colquitt 2001). Dimensionally, organizational justice can be summarized into three main aspects: (1) distributive justice, which is considered to be a justice perception that is associated with the distribution of tangible or intangible outcomes, as the result of certain behaviors or activities (e.g., working activities), in other words, it embodies the outcome-based justice attribute (Adams 1963; Colquitt 2001; Cropanzano and Rupp 2003; Greenberg 1987); (2) procedural justice, which refers to a process-based justice perception that is associated with decision-making procedures, reflecting the process-based justice attribute (Blader and Tyler 2003; Greenberg 1987; Leventhal 1980); and (3) interactional justice, which describes the perception of the degree to which certain decisions or outcomes are adequately explained to the target individual with respect and propriety (Bies and Moag 1986; Colquitt 2001; Sitkin and Bies 1993). Notably, some organizational justice researchers (e.g., Bies 2001; Greenberg 1993; Colquitt 2001) have divided interactional justice into two sub-dimensions, including interpersonal justice, which reflects the quality, dignity, and respect of interpersonal treatment received from the others (Bies and Moag 1986) and informational justice, which reflects the presence of explanations received by the decision-makers (Greenberg 1993; Shapiro et al. 1994). Despite the controversy about whether interactional justice should be one integral dimension or two interrelated sub-dimensions when taken together, interactional justice broadly attempts to represent organizational justice from the perspective of between-person interaction, indicating the social aspect of organizational justice (Cropanzano and Ambrose 2001; Tyler and Blader 2000). Extant literature also indicates that one vital factor behind organizational justice is fairness, which refers to a person’s assessment or evaluation of the extent to with a process/decision is undertaken morally (Goldman and Cropanzano 2015) and appropriately (Colquitt and Rodell 2015). Indeed, as Goldman (2015) indicated, organizational justice is assumed to be largely synonymous with fairness; or more specifically, fairness is one possible conception of justice (e.g., Colquitt and Rodell 2015; Chiaburu and Marinova 2006; Cugueró-Escofet and Rosanas 2013; Heponiemi et al. 2008). 2.7. Review of Organizational Justice and Turnover in Crowdwork Literature Organizational justice is an indispensable component in HRM (Folger and Cropanzano 1998), such that when employees consider their relationship with their employer to be jeopardized (e.g., perceived failures or inappropriate actions regarding performance evaluation), it leads to a perceived organizational justice violation or justice issue. Previous studies have indicated the necessity and importance of organizational justice in regards to worker outcomes and perceptions. As indicated by Cropanzano et al. (2001a), in the organizational Adm. Sci. 2020, 10, 93 17 of 37 context, people have multiple justice-related needs, such as the need for control, need for belonging, need for meaning, and need for positive self-regard-organizational justice plays the role of satisfying each of these needs. Similarly, building on Kelman (1958, 2017)’s three-pathway social influence (i.e., compliance pathway, identification pathway, and internalization pathway), Cropanzano et al. (2001b) pointed out that organizational justice researchers have “independently re-discovered Kelman’s key insight” (p. 9) by having “a long journey through conceptually varied terrain” (p. 9), and have figured out why organizational justice matters—these authors suggest that instrumental motive, relational motive, and moral motive precipitate organizations’ concerns of distributive justice, procedural justice, and interactional justice, respectively. In traditional workplaces, organizational justice predicts employees’ work-related behaviors, such as organizational citizenship behaviors, organizational commitment, and turnover (Colquitt et al. 2001). In the crowdwork context, workers can have concerns about organizational justice issues as well because of the labor exchange and the transaction-based relationship between requester and worker are still key components, similar to workers in more traditional contexts. In their recent review of organizational justice, Ryan and Wessel (2015) shed light on the new challenges in technology-mediated working contexts. Specifically, the authors pointed out that under a technology-mediated work environment, workers expect more consistency and bias-free HRM practices, such as justice and explanations associated with it. This is due to the technology-mediated working context creating a more challenging environment for workers to identify the outcomes and processes that undermine justice. Even though the authors did not explicitly address the crowdwork context, the technology-mediated work environment, to a large extent, still reflects these concerns because mediating platforms are an integral part of crowdwork. To date, some reviews and studies have shed light on organizational justice issues in the crowdwork context. For instance, compensation provided by requesters is related to distributive justice issues (Gleibs 2016; Irani 2013; Porter et al. 2019); performance evaluations and pricing procedures are related to procedural justice issues (Faradani et al. 2011; Kamar et al. 2012; Porter et al. 2019); and the correspondence between requesters and workers is related to interactional justice (Porter et al. 2019). To better understand justice issues in the crowdwork context, we conducted a literature review of studies that specifically summarize the current understanding of organizational justice in the crowdwork context. Specifically, we conducted a literature search using keywords such as “freelancing”, “freelancer”, “crowdsourcing”, “crowd”, “crowdsource”, and “crowd-based” in multiple databases, including ScienceDirect, Escudos, Emerald, JSTOR, Sage Journals, Springer, Wiley, and Google Scholar. To be inclusive, these keywords were used in all searches, including title, abstract, list of keywords, and main texts. In particular, we reviewed studies that examined the antecedents and outcomes of organizational justice in the crowdwork context and specific dimensions of organizational justice that were discussed. Following our search, we identified ten studies that specifically discussed organizational justice. We reviewed these articles in terms of antecedents and outcomes of organizational justice in the crowdwork context. A summary of this review is shown in Table 3. Adm. Sci. 2020, 10, 93 18 of 37 Table 3. Literature Review of Organization Justice in Crowd-based Context (in alphabetical order). Author and Year Type Antecedent(s) Mediator Outcome(s) Faullant et al. (2017) Empirical • Distributive justice • Procedural justice • No mediator discussed • Evoked product interest • Perceived innovativeness • Loyalty intentions Franke et al. (2013) Empirical • Value distribution • system transparency • Ex-ante identification with the requesting organization • Distributive justice • Procedural justice • Willingness to contribute, ex-post identification with the requesting organization Leung and Cho (2018) Empirical • Intrinsic motivation • Distributive justice • Self-efficacy • Continued participation intention Liu and Liu (2019) Empirical • Distributive justice • Interpersonal justice • Informational justice • Trust in task requester • Trust in intermediary management • Continuance participation intention in the crowdsourcing market Ma et al. (2016) Empirical • Workload • Distributive justice • Job satisfaction • Turnover intention (platform turnover) Ma et al. (2018) Empirical • Distributive justice • No mediator discussed • Turnover intention (platform turnover) Wang et al. (2018) Empirical • Distributive justice • Procedural justice • Interactional justice • Knowledge integration • Knowledge Quality Weng et al. (2019) Empirical • Gamification elements # Points # Feedback # Network • Distributive justice • informational justice • Interactional justice • Crowdsourcing participation Yang et al. (2018) Empirical • Point rewarding • Feedback giving • Distributive justice • Interactional justice • Worker’s participation Zou et al. (2015) Empirical • Distributive justice • Procedural justice • Interactional justice • Idea cooperation (e.g., giving feedback on the ideas of others or integrating knowledge from different participants, helps with novelty and usefulness) • Idea generation • Creative performance Adm. Sci. 2020, 10, 93 19 of 37 2.8. Literature Review Results In terms of notable findings, studies investigating the antecedents of organizational justice in depth are somewhat lacking in the crowdwork content. For instance, antecedents include value distribution, system transparency (Franke et al. 2013), workload (Ma et al. 2016) point rewarding, and feedback provision (Weng et al. 2019; Yang et al. 2018). However, these studies do not take moderations or boundary conditions into account. Moreover, with regard to the outcomes, although all identified studies discussed at least one outcome of organizational justice, only Ma et al. (2016, 2018) discussed turnover intentions, which they defined as the intention to switch from one crowd-based labor platform to another (i.e., platform turnover). In a similar vein, Brawley and Pury (2016) operationalized crowd-based workers’ turnover intentions as their unwillingness to continue to work for the same requester (i.e., requester turnover). Since there is a triadic relationship among worker, requester, and platform when it comes to crowdwork (Fieseler et al. 2019), we posit that because of the unique circumstances that workers face (i.e., having both the requester and platform involved in the work process), both types of turnover exist and should be considered in crowdwork—requestor turnover and platform turnover. Additionally, since organizational justice is an integral concept that covers three dimensions (e.g., Sitkin and Bies 1993; Colquitt 2001), all three dimensions should be considered simultaneously because organizational justice is a comprehensive concept that consists of outcome, process, and explanation. Based on our review of the platforms and literature, in the next few sections, we propose antecedents of justice perceptions as well as moderators that influence the relationship between antecedents and justice perception. Additionally, we posit that workers’ justice perceptions have a direct effect on requester turnover. 3. Conceptual Work—Antecedents of Crowd-Based Workers’ Organizational Justice Perception 3.1. Compensation Policy and Distributive Justice Compensation policy, which is also known as pay policy, refers to organizational policies designed to provide compensation that commensurate with workers’ jobs. As noted earlier, distributive justice reflects perceived fairness related to outcome and resource allocation (Colquitt 2001; Cropanzano and Rupp 2003). In a crowdwork context, distributive justice is important to workers because this type of justice reflects outcome-based gains (Cropanzano et al. 2001b), which are largely related to acquiring foreseeable and tangible benefits, such as concrete economic and quasi-economic gains (Cropanzano et al. 2001a; Thibaut and Walker 1978) to satisfy one’s self-needs (Gond et al. 2017). Therefore, by seeing distributive justice through a crowdwork lens, what can be inferred is that a way to contribute to workers’ distributive justice is to have a compensation policy in place, such that the policy can ensure commensurate compensation that reflects workers’ inputs. Furthermore, Equity Theory (Adams 1963) provides a useful theoretical framework to demonstrate the importance of compensation policy. According to Equity Theory (Adams 1963), working individuals seek to maintain equitable transactions between the input that they invest in the work and the outcome they receive from it (i.e., intrapersonal equity), and between the treatment they receive and that received by equity referents (i.e., interpersonal equity). This is because commensurate and proportionate compensation reflects the fundamental basis of employment relations (Opsahl and Dunnette 1966). By comparing inputs and outcomes, a worker can determine whether he/she is under-compensated or equitably compensated, leading to evaluations about justice and fairness (Adams and Freedman 1976). An equitable compensation policy can ensure commensurate compensation and minimize the occurrence of under-compensation. Therefore, we propose that an equitable compensation policy is positively associated with workers’ distributive justice perceptions. Proposition 1. Requesters’ equitable compensation policy is positively related to workers’ distributive justice perceptions towards requesters. Adm. Sci. 2020, 10, 93 20 of 37 3.2. Compensation Policy and Motivation Similar to the traditional working context, motivation is an important factor that affects work outcomes in crowdwork as well (Smith et al. 2013). Motivation refers to the dynamic personal energy by which an action is performed, and reflects individuals’ willingness to perform tasks (Cummings and Schwab 1973; Rothschild 1999; Siemsen et al. 2007) as a result of combining psychological processes that target the wanting and attempting to execute certain behaviors (Mitchell 1997). Similarly, Campbell and Pritchard (1976) defined motivation as “a set of independent/dependent variable relationships that explain the direction, amplitude, and persistence of an individual’s behavior, and holding constant the effects of aptitude, skill, and understanding of the task, and the constraints operating in the situation.” (p. 65). Two main types of motivation described in the literature are extrinsic and intrinsic motivation (Hossain 2012). On one hand, extrinsic motivation is the motivation to work for an outcome that is apart from and external to the work itself, such as reward or recognition from other people (Deci 1975). On the other hand, intrinsic motivation is defined as the drive to engage in work for its own sake because the work itself is interesting, satisfying, or enjoyable (Deci 1975; Smith et al. 2013). The extrinsic-intrinsic motivational orientation is helpful when researchers seek to explain how a specific motivational orientation influences the completion of a particular task. Recent studies (e.g., Wexler 2011) have discussed Self-Determination Theory (SDT, Deci and Ryan 2000) within the crowdwork context. Broadly, SDT posits that instead of a unitary or a bipolar construct, there is a motivation continuum with external and internal motivation on both ends, whereby someone can move between externally motivated (e.g., being motivated by financial rewards) and internally motivated (e.g., being motivated by mastery of a skill or by achievement) (Deci and Ryan 2000). This movement depends on the extent to which people establish a sense of emotional involvement, that is, the degree of being psychologically involved in the process of reaching desired goals (Allen and Meyer 1996), an adequate level of work engagement (Schaufeli et al. 2002), and satisfaction of the need for competence, autonomy, and relatedness (Deci and Ryan 2000). By seeing crowd-based work through a SDT lens, workers are likely motivated differently (Alam and Campbell 2017; Zhao and Zhu 2012), based on where they land on the external-internal continuum. When workers are relatively extrinsically motivated (e.g., being motivated by external factors), their focus will lean towards instrumental outcomes, which include outcomes that are extrinsic to requested tasks, such as economic gains (Deci and Ryan 2000; Gassenheimer et al. 2013; Smith et al. 2013) and quasi-economic gains (Cropanzano et al. 2001a). On the other hand, when workers are relatively intrinsically motivated (e.g., being motivated by satisfying the need for competence, autonomy, relatedness, etc.), their focus will lean towards the inherently interesting characteristics of requested tasks, such as work-related enjoyment and satisfaction, instead of the need for external reinforcement (e.g., financial compensation) to maintain their work (Smith et al. 2013). Similarly, Brawley (2017) indicated that workers who participate in crowdwork consider themselves to be paid workers and are motivated by financial interests, such that higher payment encourages them to put more effort into their work. Taken together, given distributive justice perceptions are directly linked to instrumental outcomes, we suggest that workers who are more extrinsically motivated will have a stronger response to distributive justice violations due to compensation policy issues than workers who are more internally motivated. In this way, we propose that in the crowdwork context, the extent to which equitable compensation policy predicts workers’ distributive justice perceptions depends on workers’ work-related motivation. Proposition 2. The positive relationship between requesters’ equitable compensation policy and workers’ distributive justice perceptions is moderated by workers’ motivation, such that the relationships will be stronger when workers are extrinsically motivated and will be weaker when workers are intrinsically motivated. Adm. Sci. 2020, 10, 93 21 of 37 3.3. Performance Evaluation Methods and Procedural Justice Performance evaluation refers to how certain work outcomes are evaluated. Performance evaluation is closely related to procedural justice, which refers to the extent to which the procedures used for determining resource/reward allocation within an organization result in consistent evaluation approaches (Barrett-Howard and Tyler 1986). Procedural justice is important to working individuals because it signals that decision-makers make compensation-related decisions based on a process that embodies transparency and consistency (Tyler and Bies 1990; Tyler and Blader 2000). Establishing and maintaining involvement with the individuals being evaluated is an important factor that contributes to performance evaluation fairness. Greenberg (1986) posited that soliciting employees’ input before a performance evaluation is a vital factor to ensure employees’ perceived fairness in the evaluation process. In the crowdwork context, the increase in workers’ feelings of involvement and inclusion with a requester increases their distributive justice perception because this leads workers to believe their voices are respected and heard by requesters. Specifically, a good way to promote workers’ justice perceptions of performance evaluation is to have them involved in the establishment and/or revision of performance evaluation practice. In fact, Greenberg and Folger (1983) indicated that the organizational policies that allow employees to increase their influence and control over their work contribute to the increase of procedural justice perceptions. Therefore, by seeing procedural justice from a crowdwork perspective through the lenses of participation and influence, what can be inferred is that to promote workers’ procedural justice, there is a need to have a performance evaluation that emphasizes workers’ participation, such that the performance evaluation needs to allow for worker participation, feedback, and the opportunity to conduct work revisions. Taken together, we propose that performance evaluation practices that emphasize workers’ participation will contribute to workers’ procedural justice perceptions in the crowdwork context. Proposition 3. Requesters’ performance evaluation practices that emphasize workers’ participation and involvement is positively related to workers’ procedural justice perceptions towards requesters. 3.4. Case-Based vs. Rule-Based Performance Evaluation In the traditional working context, workers can be evaluated in multiple ways (Campbell and Wiernik 2015). However, when it comes to the internet-mediated crowdwork context, the availability of evaluation methods is severely restricted (Aguinis and Lawal 2013). Instead, two types of evaluation systems have been broadly utilized in the computer-based work context: rule-based reasoning (RBR) and case-based reasoning (CBR) (Dutta and Bonissone 1993). RBR and CBR have been broadly used in as part of computerized systems in different industries, such as auditing (e.g., Lee et al. 2008), healthcare (e.g., Marling et al. 1999; Rossille et al. 2005), and business (e.g., Golding and Rosenbloom 1996). As indicated by Chi and Kiang (1993), the RBR system takes a deductive reasoning approach, such that the system is represented by an objective, universally accepted knowledge base (i.e., a series of rules) that defines logical relations among concepts of the problem domain—the system evaluates work by searching, screening, and matching appropriate knowledge-based rules to the work that needs to be evaluated. A CBR system, on the other hand, takes an inductive reasoning approach, such that the system retrieves previous cases from a case library (i.e., a set of previous cases), matches the attributes and essential features from the work that needs to be evaluated subjectively with that from similar previous cases, which includes episodic knowledge, memory organization, and learning (Slade 1991), and adapts the solutions from previous cases to the new cases (Dutta and Bonissone 1993; Watson and Marir 1994). In the crowdwork context, requested tasks can be evaluated by either rule-based evaluation or case-based evaluation (Prentzas and Hatzilygeroudis 2009). RBR evaluations are used for tasks such as proof-reading, transcribing, computation, and coding/programming, as the evaluation of these tasks, is based on a well-defined, universally accepted knowledge base (e.g., spelling, grammar, mathematics, Adm. Sci. 2020, 10, 93 22 of 37 etc.). On the other hand, CBR evaluations are used for tasks such as logo design and writing, as these tasks are evaluated based on previous cases (e.g., similar tasks that evaluated previously), such that requesters retrieve their memories of evaluating previous cases and apply them to current tasks. Therefore, unlike an RBR evaluation that uses universally accepted knowledge and objective rules, a CBR evaluation relies on a requester ’s subjective rules and accumulated experiences. This makes the accuracy and reliability of the evaluation to be contingent on recency, relevancy, and saliency of similar previous cases. Given, participating in the establishment/revision of performance evaluation helps workers to learn more about requesters’ needs and expectations (making it more likely for workers to yield working outcomes that align with requester expectations), participative performance evaluation is likely to have a stronger influence on procedural justice perceptions for CBR evaluations. This is because CBR evaluations are malleable and generally more ambiguous compared to RBR evaluation. Therefore, by participating in the evaluation, workers can gain additional clarity as to how and why they receive a particular performance outcome. Proposition 4. The positive relationship between performance evaluations and workers’ procedural justice perceptions towards requesters is moderated by the type of evaluation policy, such that CBR evaluations will strengthen the relationship, while RBR evaluations will weaken the relationship. 3.5. Considerate Communication and Interactional Justice Interactional justice refers to the perception of the degree to which certain decisions or outcomes are adequately explained to target individuals with respect and propriety (Bies and Moag 1986; Sitkin and Bies 1993), and it is considered to be a combination of interpersonal justice (Bies and Moag 1986) and informational justice (Shapiro et al. 1994). Moral motive contributes to interactional justice (Cropanzano et al. 2001a). Moral motive originates from the idea of egalitarianism, which posits that people tend to consider both self-interests and others’ interests simultaneously by engaging in egalitarian behaviors and distributing wealth fairly (Rawls 2005). Based upon egalitarianism, moral motive emphasizes workers’ expectations for being treated morally by employers, manifested in employers’ consideration of workers’ interests and maintaining a good moral standing (Cropanzano and Rupp 2003). In the crowdwork context, considerate communication between requester and worker can attend to workers’ concerns and promote their perceptions of interactional justice. When a requester explains compensation outcomes and how compensation is determined to workers with consideration for workers’ circumstances and concerns, it allows workers to utilize social information processing to formulate a positive perception of their relationship with the requester (Thomas and Griffin 1989). Specifically, workers are likely to view requesters who take this approach to communication as considerate and understanding and are willing to address works concerns. Furthermore, this type of social information processing facilitates workers’ rationalization of requesters’ explanatory behaviors, aiding workers to perceive stronger interactional justice. Proposition 5. Considerate and moral communication between requesters and workers is positively related to workers’ interactional justice perceptions towards requesters. 3.6. Communication Quality Communication quality influences the relationship between considerate communication and workers’ interactional justice perceptions because communication quality determines how requesters can effectively transmit and explain compensation-related information. We suggest that two factors contribute to communication quality between requester and worker: (1) media richness of the communication, based on the Media Richness Theory (Daft and Lengel 1986), and (2) communication interactivity, based on the idea of presence (Steuer 1992). Adm. Sci. 2020, 10, 93 23 of 37 According to the Media Richness Theory (Daft and Lengel 1986), different types of communication mediums can be placed on a continuum (e.g., from lower richness to higher richness) based on their ability to adequately convey a message, such that a higher level of media richness makes it easier for requesters to make evaluations and determine and communicate outcomes more clearly and effectively. For instance, video calls have a relatively higher level of adequacy to convey information, whereas a bulletin or handbook has a relatively lower level of adequacy, due to limited multi-media representation (Herr et al. 1991). Recent studies have indicated that media richness can positively influence an organization’s effectiveness in virtual workplaces. For instance, Hambley et al. (2007) indicated that communication with higher media richness is more capable than that with lower media richness to facilitate better performance in virtual work teams. In the crowdwork context, requesters can establish effective communication that can transmit considerate messages with an adequate level of information richness so that respect and propriety are clearly conveyed to workers. For example, most platforms we identified in Table 2 have established multi-media communication channels (i.e., relatively higher level of richness) between requesters and workers so that both parties can discuss work and compensation with visualization. Meanwhile, interactivity refers to the extent to which a real-time, between-person communication can be established between message senders (e.g., requesters) and receivers (e.g., workers). A higher level of interactivity increases receiver’s perception of telepresence, a specific type of presence that reflects the extent to which a person is perceived to be present (i.e., “being there”) in a technology-mediated context (Sheridan 1992; Steuer 1992), and an important indicator of effective interaction in technology-mediated communication (Steuer 1992). Interactivity can influence how workers perceive justice-related messages from requesters because it influences the efficacy of information transmitted from requesters to workers as well as workers’ perceptions of requesters’ telepresence. Interactivity promotes the requester ’s telepresence, which enables the worker to perceive the requester as “being there” and ready to help (Steuer 1992). As an example, high interactivity takes place when real-time communication between a requester and a worker can be established, such as an instant message. In contrast, low interactivity occurs when the requester and a worker can only communicate through a broker or middle person, such as a platform representative. Given the level of interactivity between a requester and a worker depends on real-time interaction, and interactivity helps requesters provide considerate and moral communication promptly, interactivity can play a significant role in the communication between requesters and workers as it determines how closely computer-mediated communication mirrors requesters’ consideration. Proposition 6. The positive relationship between considerate and moral communication and workers’ interactional justice perceptions towards the requesters is moderated by media quality (including media richness and interactivity), such that the relationship will be stronger when there is higher communication quality, and the relationship will be weaker when there is lower communication quality. 4. Conceptual Work—Outcomes of Organizational Justice Issues 4.1. Turnover Turnover is a typical withdrawal behavior. Previous studies have suggested organizational justice perceptions play an important role in predicting turnover intention. For instance, Colquitt et al. (2001) reviewed extant organizational justice literature and posited that organizational justice issues significantly contribute to workers’ turnover intention. Previous studies have suggested that there is a positive relationship between fairness perceptions and turnover in the traditional workplace context (e.g., Cropanzano et al. 2003; Jones and Skarlicki 2003; Tekleab et al. 2005). Building on the Equity Theory (Adams 1963), Brashear et al. (2005) indicated that justice issues jeopardize the equity between workers’ input and return from work, and consequently contribute to the intention of withdrawal behaviors. More recently, Fortin and colleagues (Fortin et al. 2014) conducted a comprehensive review Adm. Sci. 2020, 10, 93 24 of 37 of organizational justice and posited that organizational justice is a critical determinant of employees’ attitudes and behaviors in the workplace, and turnover is one of the consequences of injustice. Extending to the crowdwork context, there are even fewer barriers to prevent workers from turnover, due to the absence of a formal employment contract between requesters and workers, as well as the easy process required of workers to sign up and sign off crowdsourcing jobs (Brawley and Pury 2016). Ma et al. (2016) suggested that workers’ perceptions of fairness are negatively related to turnover despite differences regarding working processes and context. Previous studies have shed light on explicating turnover in the crowd-based context. For instance, Brawley and Pury (2016) refer to crowd-based workers’ turnover as refusing to accept new jobs from a particular requester (i.e., requester turnover). Building on previous studies that provided evidence of the association between organizational justice and turnover, in a crowdwork context, organizational justice in three aspects (i.e., distributive, procedural, and interactional justice) can lead to requester turnover. This idea is also supported by the idea of target-similar effects (Cropanzano et al. 2001a; Skarlicki et al. 2016), which posits that workers usually direct their reactions towards the “source” of the antecedents. In the context of the crowdwork environment, when the source of the organizational justice issue is the requester (i.e., requesters’ compensation policy, requesters’ performance evaluation practices, and considerate and moral communication between requesters and workers), injustice perceptions toward the requester would lead to requester turnover. Proposition 7. Workers’ justice perceptions towards requesters regarding (a) distributive justice, (b) procedural justice, and (c) interactional justice will be negatively related to workers’ requester turnover. 4.2. Job Mobility Job mobility is defined as a worker’s perception of available alternative job opportunities and has been shown to have a significant influence on workers’ turnover (Wheeler et al. 2007). In the crowdwork context, workers’ perceived requester-related job mobility can influence their requester turnover as well because perceived requester-related job mobility reflects the extent to which workers feel free to move from one requester to another. When job mobility is high, workers believe there are more job opportunities from other requesters so that they can easily find alternative works from other requesters when they perceive injustice from the current requester(s) they work for. In comparison, when job mobility is low, workers believe there are limited job opportunities from other requesters so that it is difficult to find alternative works from other requesters when they perceive injustice from a current requester(s) they work for. Therefore, we propose workers’ perceived job mobility moderates the relationship between justice perceptions and turnover. Proposition 8. The negative relationship between workers’ justice perceptions towards requesters and requester turnover is moderated by workers’ perceived crowdwork job mobility, such that the relationship between workers’ (a) distributive justice perceptions, (b) procedural justice perceptions, and (c) interactional justice perceptions and workers’ requester turnover will be stronger when perceived crowd-based job mobility is higher. 4.3. Escalation of Crowd-Based Turnover As indicated earlier, in the crowdwork context, due to the unique “triadic” relationship among workers, requester, and platform (Fieseler et al. 2019)—this implies that workers’ turnover can move from requester turnover and platform turnover. The co-existence of requester turnover and platform turnover has been supported by recent studies. For instance, Brawley and Pury (2016) refer crowd-based workers’ turnover to refusing to accept new jobs from a particular requester (i.e., requester turnover); whereas Ma et al. (2016) defined crowd-based workers’ turnover as discontinuing to work on a particular platform (i.e., platform turnover). From the perspective of transaction costs (Dahlman 1979), for crowd-based workers, turnover is not without corresponding transaction costs. For instance, when it comes to crowd-based workers’ Adm. Sci. 2020, 10, 93 25 of 37 turnover, transaction costs incur along with seeking, identifying prospective requesters (i.e., information search costs, Dahlman 1979), as well as learning and negotiating with the prospective requester (i.e., bargaining costs, Dahlman 1979). Moreover, transaction costs go up as workers move from requester turnover to platform turnover as both information search costs and bargaining costs will increase when moving from one platform to another. For instance, low transaction costs incur when workers engage in requester turnover by switching from one requester to another within the same platform, as it requires fewer changes in task norms, working processes, and compensation processes; whereas higher costs are incurred when workers switch from one platform to another, as it requires workers to search for new requesters plus the costs associated with starting over the new platform registration and verification process, not to mention learning how to work in a new crowdwork system. Therefore, by looking at crowd-based turnover through the lenses of transaction costs, what can be inferred is that requester turnover incurs relatively lower costs to workers, whereas platform turnover incurs higher costs. When workers perceive injustice in crowdcwork, they will address issues rationally by pursuing the option that incurs the lower cost (i.e., requester turnover), based on the Economic Man Principle (Camerer and Fehr 2006). This suggests that workers will usually engage in requester turnover first, as it incurs relatively lower transaction costs when compared with platform turnover. Moving beyond that point, requester turnover will then escalate to platform turnover if switching to other requesters within the same platform fails to address the worker’s perception of injustice adequately. Proposition 9. Workers’ requester turnover leads to platform turnover, such that if workers perceive justice issues still exists after requester turnover, it will escalate to platform turnover. All propositions have been included in the proposed conceptual model illustrated in Figure 1. Adm. Sci. 2020, 10, x FOR PEER REVIEW 24 of 37 information search costs, Dahlman 1979), as well as learning and negotiating with the prospective requester (i.e., bargaining costs, Dahlman 1979). Moreover, transaction costs go up as workers move from requester turnover to platform turnover as both information search costs and bargaining costs will increase when moving from one platform to another. For instance, low transaction costs incur when workers engage in requester turnover by switching from one requester to another within the same platform, as it requires fewer changes in task norms, working processes, and compensation processes; whereas higher costs are incurred when workers switch from one platform to another, as it requires workers to search for new requesters plus the costs associated with starting over the new platform registration and verification process, not to mention learning how to work in a new crowdwork system. Therefore, by looking at crowd-based turnover through the lenses of transaction costs, what can be inferred is that requester turnover incurs relatively lower costs to workers, whereas platform turnover incurs higher costs. When workers perceive injustice in crowdcwork, they will address issues rationally by pursuing the option that incurs the lower cost (i.e., requester turnover), based on the Economic Man Principle (Camerer and Fehr 2006). This suggests that workers will usually engage in requester turnover first, as it incurs relatively lower transaction costs when compared with platform turnover. Moving beyond that point, requester turnover will then escalate to platform turnover if switching to other requesters within the same platform fails to address the worker’s perception of injustice adequately. Proposition 9. Workers’ requester turnover leads to platform turnover, such that if workers perceive justice issues still exists after requester turnover, it will escalate to platform turnover. All propositions have been included in the proposed conceptual model illustrated in Figure 1. Figure 1. Conceptual Model. 5. Discussion 5.1. General Discussion Human resource management scholars have suggested that there is an ongoing “war for talent” (Chambers et al. 1998) and organizations are facing more challenges regarding how to capitalize the external human resource than ever before. The war for talent implies that it is not just about utilizing new ways for attracting and acquiring human resources, but it also involves being mindful of Figure 1. Conceptual Model. 5. Discussion 5.1. General Discussion Human resource management scholars have suggested that there is an ongoing “war for talent” (Chambers et al. 1998) and organizations are facing more challenges regarding how to capitalize the external human resource than ever before. The war for talent implies that it is not just about utilizing new ways for attracting and acquiring human resources, but it also involves being mindful of Adm. Sci. 2020, 10, 93 26 of 37 traditional concerns such as motivating and retaining the workforce after human resource acquisition (Chambers et al. 1998). This is because human resources have a higher level of mobility than other types of resources (Boxall 1998), and this mobility allows human resources to move from one organization to another. This review details the nature of a new human resource acquisition technique—crowdsourcing—and discussed the implications of this new technique for acquiring and retaining talent from the crowd. From the justice perspective, and based on previous studies about organizational justice in the crowdwork context, we proposed that all three components of organizational justice should be taken into consideration when seeking to understand workers’ justice perceptions. Specifically, we proposed a theoretical model that details the roles of policies, practices, justice, and turnover within the crowd-based work context, such that workers perceived distributive, procedural, and interactional towards requesters are influenced by requesters’ equitable compensation policy, participative performance evaluation, and considerable communication. Moreover, moderators such as workers’ motivation, case- and rule-based evaluation, and communication quality are proposed to influence the relationship between antecedents (i.e., equitable compensation policy, participative performance evaluation, and considerable communication) and the three types of justice perceptions towards requesters, while the workers’ job mobility can influence the relationship between workers’ justice perceptions and requester turnover. Lastly, from the transaction costs perspective, we further suggest that there is an incremental effect in two types of turnover (requester and platform turnover) in the crowdwork context, such that the turnover starts from requester turnover, which can then progress to platform turnover. Below, we detail how our review offers contributions, theoretical implications, practical implications, and numerous directions for future research. 5.2. Contributions The proposed model presents an avenue for understanding the mechanisms that influence crowd-based workers’ experiences and perceptions when engaging in crowd-based work. This was done by reviewing extant crowd-based labor platforms and integrating organizational justice and turnover literature. By introducing these novel relationships and concepts that uniquely exist in the crowdwork context, our proposed model provides contributions that promote our understanding of crowdwork, which explicates the links between workers’ perceptions of justice and turnover behaviors. Specifically, by examining crowd-based labor platforms from a human resource management perspective and justice perspective, we extend the boundaries to the internet-based workforce in the virtual domain. Our review suggests that policies regarding worker compensation, performance evaluation, and communication quality can influence crowdworkers’ distributive, procedural, and interactional justice perceptions—the “three roads to justice” (Cropanzano et al. 2001a). Second, by seeing business crowdwork through motivation lenses, our review suggests that individuals participating in crowdwork are motivated differently, such that workers who participate in contest-based crowdwork, such as the Type B crowdwork in Howcroft and Bergvall-Kåreborn (2019)’s categorization, are more likely to be motivated intrinsically as financial compensation is not the main target; whereas workers who participate in marketplace-based crowdwork, such as the Type A, C, and D crowdwork in Howcroft and Bergvall-Kåreborn (2019)’s categorization, are more likely to be motivated extrinsically. Therefore, workers that engage in compensation-oriented crowdwork (i.e., marketplace-based crowdwork) are more likely to be influenced by distributive justice-related issues. Recent studies have suggested that there is a need to integrate the motivation framework into crowdsourcing (e.g., Buettner 2015; Kaufmann et al. 2011)—this review responds to this call and contributes to crowdsourcing literature by integrating Self-Determination Theory (Deci and Ryan 1985, 2000; Ryan and Deci 2000) into crowdwork. Third, by seeing crowdwork from an evaluation perspective, tasks can be evaluated by either rule-based evaluation, which uses universally accepted knowledge and objective rules for evaluation, Adm. Sci. 2020, 10, 93 27 of 37 or case-based evaluation, which is based on the requester’s subjective rules and accumulated experience. By comparing these two types of evaluation, we suggest that participative performance evaluations, which invite workers to be a part of the performance evaluation, is likely to have a stronger influence on procedural justice perceptions for case-based evaluations as they are generally more subject to requesters’ discretionary judgment instead of universal rules, making workers’ participation more important when ensuring fairness and consistency of performance evaluations. Furthermore, concerning requester–worker communication quality, interactivity can influence how workers perceive justice-related messages from requesters because it influences the efficacy of information transmitted from requesters to workers thus influences workers’ perceptions of presence, which further enables the worker to perceive the requester as “being there” and ready to help (Steuer 1992) and helps requesters provide considerate and moral communication promptly, promoting the relationship between considerate communication and workers’ interactional justice perceptions toward the requester. Finally, from the standpoint of job mobility, we suggest that crowdworkers’ perceived job mobility can influence their requester turnover, such that the relationships between organizational justice perceptions and requester turnover are moderated by workers’ perceived job mobility, which reflects the extent to which workers feel free to move from one requester to another. 5.3. Theoretical Implications Previous studies discuss crowdsource worker turnover in general, which is viewed as either requester turnover or platform turnover (e.g., Ma et al. 2016; Brawley and Pury 2016). Our conceptual model indicated that because of the triadic relationship among worker, requester, and platform (Fieseler et al. 2019), it is imperative for crowdwork research to take both types of turnover into account. Furthermore, building upon the consideration of both types of turnover in the crowdwork context (i.e., requester turnover and platform turnover), our model is the first to suggest that there is an escalation effect of worker turnover, which moves from requester to platform. This is based on the concept of transaction costs, such that turnover follows a low-to-high cost pattern, where requester turnover escalates to platform turnover as workers respond to injustice perceptions. We suggest that it is important for requesters and platforms to solve turnover-related issues as early as possible (e.g., before these issues escalate to platform level), especially when crowd-based labor demand exceeds supply, or when turnover incurs a high cost to the platform. Additionally, while some researchers are still hesitant about utilizing the crowd (e.g., Harms and DeSimone 2015; Keith and Harms 2016), increased task quality from crowd-based workers (e.g., Amazon’s Mturkers) may make it possible for researchers in HRM and other social science disciplines to conduct empirical research by tapping into crowd-based samples (Landers and Behrend 2015). We suggest researchers should consider how the participating workforce is likely to perceive requested tasks concerning the various forms of justice and to ensure that appropriate policies, practices, and transparency are used to prevent unnecessary requester turnover. 5.4. Practical Implications Our conceptual model suggests that when organizations consider tapping into human resources within the crowd, they should be aware of the central role that justice perceptions play on workers’ turnover. This is because workers in the crowdwork context are individuals performing tasks within virtual workplaces, and unfair treatment can negatively impact them more severely than those working in traditional settings (Vander Elst et al. 2013). Therefore, instead of viewing workers as simply interchangeable mechanical components within working systems or marginalized, they should be viewed and treated similar to workers in a traditional work context (Deng et al. 2016). Furthermore, workers’ turnover is primarily due to issues regarding whether the amount of compensation commensurately reflects their perceived level of contribution, how the compensation amount is determined, and whether adequate explanations were provided to support compensation decisions Adm. Sci. 2020, 10, 93 28 of 37 (e.g., Keith et al. 2017). Therefore, we recommend that requesters should ensure their crowdwork policies reflect all aspects of organizational justice. Second, given the steady increase in people pursuing crowdwork/gig work, more attention should be paid to understanding how to best manage workers and maintaining a stable workforce (Colbert et al. 2016). To this end, we suggest that actions should be taken to establish quality communication channels between requesters and workers to solve organizational justice issues by providing clear and adequate explanations about crowd-based compensation. This will further promote workers’ job security and psychological contract with the requester and decrease their turnover in the early stages (e.g., requester turnover stage), as turnover is likely to escalate (to platform turnover) if justice issues are not solved properly. Third, while attracting and retaining workers in the crowdwork context is less of an issue than in traditional organizations, crowd-based labor platforms still depend on registered users to maintain business and operations (e.g., charging commissions or subscription fees). Therefore, workers’ turnover can negatively impact platforms’ revenues by decreasing platforms’ ability to offer requesters a reliable workforce. Moreover, since turnover in the crowdwork context includes requester turnover and platform turnover, turnover can create losses for both the requesters and the platform. For requesters, turnover decreases the supply of potential crowdsourcing workers; this is particularly true for requestors working on platforms that have active third-party websites and discussion boards (e.g., turkopticon.ucsd.edu). If a particular requester receives unfavorable reviews from workers on such a forum, it could create a negative image and further prevent other workers from taking tasks from the requester. For platforms, turnover reduces the platform’s main source of revenue, which entails charging commission based on the payment given by requestors to workers. When a large number of workers leave, a platform will become less attractive to potential requesters, which will ultimately lead to platform closure. Therefore, while crowdworkers’ job mobility is higher than their counterparts in traditional organizations (Brawley and Pury 2016), attracting and retaining crowdworkers that actively participate in crowdsourcing jobs is still important for the survival of the platforms (Boons et al. 2015). Platforms need a stable supply of worker to maintain their attractiveness and competitiveness, especially in today’s crowd-based labor market, which includes an ever-increasing number of platforms. Fourth, although the crowd-based workforce consists of a large number of working individuals accessed through open calls, the actual number of active workers is quite limited, implying that reputation is a major issue for requesters and platforms. For example, even though there are over 100,000 unique registered workers available on Amazon’s Mturk around the world, the actual population of workers that actively complete tasks is estimated to be less than 7500 (Stewart et al. 2015). Reputation issues easily escalate because workers’ reviews and ratings for requesters and platforms can easily spread on a large scale. For example, Amazon’s Mturkers share comments about requester at Turkopticon, such that comments are instantly available to all Mturkers once posted, implying that when a bad reputation is widely known by a certain group of workers, it will be difficult for a requester or a platform to recruit new workers. Finally, as an effective way to minimize justice issues in the crowdwork context, requesters should provide equitable and commensurate compensation to workers and adhere to minimum wage levels whenever possible (Silberman et al. 2018). Meanwhile, it is also important for platforms to take some responsibility for maintaining an accommodating virtual workplace for workers. In fact, the escrow account, pre-screening process, built-in quality control mechanism, and dispute investigation are examples of platforms’ attempts to move beyond simply hosting requester task postings. 5.5. Future Research Future research should continue to not only emphasize the importance of distributive justice in the crowdwork context, but all aspects of organizational justice. By identifying unique effects from all three aspects of justice, future research should focus on both platforms and requesters in terms of Adm. Sci. 2020, 10, 93 29 of 37 implementing appropriate policies, improving existing crowdwork processes, and addressing justice issues in three aspects (i.e., distributive, procedural, and interactional justice). Another potentially fruitful avenue for future research is to explore the possibility of integrating more diverse HRM functions into the crowdwork context, such as the recruitment and selection of workers, as recruitment and selection practices contribute to perceived organizational justice in the traditional work context and likely have a similar influence on justice perceptions in the crowd-based work context (Gilliland 1993). Finally, future research should examine whether workers from different countries perceive organizational justice in the same way. As more crowd-based labor platforms start recruiting workers from around the world, workers from different countries could have distinct attitudes towards compensation policies and performance evaluation due to different cultural backgrounds and different national economic statuses (Litman et al. 2014). 6. Conclusions Crowdwork brings about both opportunities and challenges for organizations that attempt to tap into the human resources found within the crowd. Similar to traditional employees, crowd-based workers are more susceptible to justice issues. The nature of crowd-based work processes, such as single-sourced, outcome-based performance evaluations and limited communication, increases workers’ susceptibility to justice issues surrounding compensation, performance evaluation, and communication. More specifically, we suggest that marketplace-based workers are more concerned than contest-based workers regarding distributive justice, as these types of worker are more motivated by factors external to their work, such as financial compensation. Furthermore, we identify and propose two types of turnover: requester turnover and platform turnover, ranging from a low to high level, and suggest that both requesters and platforms should take crowdsourcing workers’ turnover seriously as worker turnover could escalate quickly if not properly resolved. Taken together, by providing a conceptual model, we offer a novel understanding of crowd-based workers’ justice perceptions, the factors that influence those perceptions, and the behavioral outcomes of perceived injustice. Author Contributions: All three authors contributed to all these following activities: conceptualization, methodology, investigation, resources, original draft preparation, review and editing, and visualization. All authors have read and agreed to the published version of the manuscript. Funding: This research received no external funding. Acknowledgments: This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors. Conflicts of Interest: The authors report no conflict of interest. References Acosta, Maribel, Amrapali Zaveri, Elena Simperl, Dimitris Kontokostas, Sören Auer, and Jens Lehmann. 2013. Crowdsourcing Linked Data Quality Assessment. In The Semantic Web. Edited by Harith Alani, Lalana Kagal, Achille Fokoue, Paul Groth, Chris Biemann, Josiane X. Parreira, Lora Aroyo, Natasha Noy, Chris Welty and Krzysztof Janowicz. Berlin/Heidelberg: Springer, pp. 260–76. [CrossRef] Adams, Stacy. 1963. Towards an understanding of inequity. The Journal of Abnormal and Social Psychology 67: 422–36. [CrossRef] Adams, Stacy, and Sara Freedman. 1976. Equity theory revisited: Comments and annotated bibliography. Advances in Experimental Social Psychology 9: 43–90. [CrossRef] Aguinis, Herman. 2009. Performance Management. Upper Saddle River: Pearson Prentice Hall. Aguinis, Herman, and Sola O. Lawal. 2013. Elancing: A review and research agenda for bridging the science–practice gap. Human Resource Management Review 23: 6–17. [CrossRef] Aguinis, Herman, Harry Joo, and Ryan K. Gottfredson. 2011. Why we hate performance management—And why we should love it. Business Horizons 54: 503–7. [CrossRef] http://dx.doi.org/10.1007/978-3-642-41338-4_17 http://dx.doi.org/10.1037/h0040968 http://dx.doi.org/10.1016/s0065-2601(08)60058-1 http://dx.doi.org/10.1016/j.hrmr.2012.06.003 http://dx.doi.org/10.1016/j.bushor.2011.06.001 Adm. Sci. 2020, 10, 93 30 of 37 Alam, Sultana L., and John Campbell. 2017. Temporal motivations of volunteers to participate in cultural Crowdsourcing work. Information Systems Research 28: 744–59. [CrossRef] Alberghini, Elena, Livio Cricelli, and Michele Grimaldi. 2013. KM versus enterprise 2.0: A framework to tame the clash. International Journal of Information Technology and Management 12: 320–36. [CrossRef] Allen, Natalie J., and John P. Meyer. 1996. Affective, continuance, and normative commitment to the organization: An examination of construct validity. Journal of Vocational Behavior 49: 252–76. [CrossRef] Askay, David. 2017. A conceptual framework for investigating organizational control and resistance in crowd-based platforms. Paper presented at the 50th Hawaii International Conference on System Sciences, Hilton Waikoloa Village, HI, USA, January 4–7. Baldwin, Carliss, and Eric Von Hippel. 2010. Modeling a paradigm shift: From producer innovation to user and open collaborative innovation. SSRN Electronic Journal. [CrossRef] Barnes, Sally-Anne, Anne Green, and Maria de Hoyos. 2015. Crowdsourcing and work: Individual factors and circumstances influencing employability. New Technology, Work and Employment 30: 16–31. [CrossRef] Barrett-Howard, Edith, and Tom R. Tyler. 1986. Procedural justice as a criterion in allocation decisions. Journal of Personality and Social Psychology 50: 296–304. [CrossRef] Behrend, Tara S., David J. Sharek, Adam W. Meade, and Eric N. Wiebe. 2011. The viability of crowdsourcing for survey research. Behavior Research Methods 43: 800–13. [CrossRef] Bies, Robert J. 2001. International (in)justice: The sacred and the profane. In Advances in Organization Justice. Edited by Jerald Greenberg and Russell Cropanzano. Stanford: Stanford University Press, pp. 89–118. Bies, Robert J., and Joseph S. Moag. 1986. Interactional communication criteria of fairness. Research in Organizational Behavior 9: 289–319. Blader, Steven L., and Tom R. Tyler. 2003. What constitutes fairness in work settings? A four-component model of procedural justice. Human Resource Management Review 13: 107–26. [CrossRef] Boons, Mark, Daan Stam, and Harry G. Barkema. 2015. Feelings of pride and respect as drivers of ongoing member activity on Crowdsourcing platforms. Journal of Management Studies 52: 717–41. [CrossRef] Boxall, Peter. 1998. Achieving competitive advantage through human resource strategy: Towards a theory of industry dynamics. Human Resource Management Review 8: 265–88. [CrossRef] Brabham, Daren C. 2008. Crowdsourcing as a model for problem solving. Convergence: The International Journal of Research into New Media Technologies 14: 75–90. [CrossRef] Brabham, Daren C. 2013. Crowdsourcing. Cambridge: MIT Press. Brashear, Thomas G., Chris Manolis, and Charles M. Brooks. 2005. The effects of control, trust, and justice on salesperson turnover. Journal of Business Research 58: 241–49. [CrossRef] Brawley, Alice M. 2017. The big, gig picture: We can’t assume the same constructs matter. Industrial and Organizational Psychology 10: 687–96. [CrossRef] Brawley, Alice M., and Cynthia L. Pury. 2016. Work experiences on MTurk: Job satisfaction, turnover, and information sharing. Computers in Human Behavior 54: 531–46. [CrossRef] Breaugh, James A., Leslie A. Greising, James W. Taggart, and Helen Chen. 2003. The relationship of recruiting sources and pre-hire outcomes: Examination of yield ratios and applicant quality. Journal of Applied Social Psychology 33: 2267–87. [CrossRef] Buettner, Ricardo. 2015. A systematic literature review of Crowdsourcing research from a human resource management perspective. Paper presented at the 2015 48th Hawaii International Conference on System Sciences, Kauai, HI, USA, January 5–8. Buhrmester, Michael, Tracy Kwang, and Samuel D. Gosling. 2011. Amazon’s mechanical turk. Perspectives on Psychological Science 6: 3–5. [CrossRef] [PubMed] Byrne, Zinta S., and Russell Cropanzano. 2001. The history of organizational justice: The founders speak. Justice in the Workplace: From Theory to Practice 2: 3–26. Camerer, Colin F., and Ernst Fehr. 2006. When does “Economic man” Dominate social behavior? Science 311: 47–52. [CrossRef] Campbell, John P., and Robert D. Pritchard. 1976. Motivation theory in industrial and organizational psychology. In Handbook of Industrial and Organizational Psychology. Edited by Marvin D. Dunnette. Chicago: Rand McNally College, pp. 63–130. http://dx.doi.org/10.1287/isre.2017.0719 http://dx.doi.org/10.1504/ijitm.2013.054799 http://dx.doi.org/10.1006/jvbe.1996.0043 http://dx.doi.org/10.2139/ssrn.1502864 http://dx.doi.org/10.1111/ntwe.12043 http://dx.doi.org/10.1037/0022-3514.50.2.296 http://dx.doi.org/10.3758/s13428-011-0081-0 http://dx.doi.org/10.1016/s1053-4822(02)00101-8 http://dx.doi.org/10.1111/joms.12140 http://dx.doi.org/10.1016/s1053-4822(98)90005-5 http://dx.doi.org/10.1177/1354856507084420 http://dx.doi.org/10.1016/s0148-2963(03)00134-6 http://dx.doi.org/10.1017/iop.2017.77 http://dx.doi.org/10.1016/j.chb.2015.08.031 http://dx.doi.org/10.1111/j.1559-1816.2003.tb01884.x http://dx.doi.org/10.1177/1745691610393980 http://www.ncbi.nlm.nih.gov/pubmed/26162106 http://dx.doi.org/10.1126/science.1110600 Adm. Sci. 2020, 10, 93 31 of 37 Campbell, John P., and Brenton M. Wiernik. 2015. The modeling and assessment of work performance. Annual Review of Organizational Psychology and Organizational Behavior 2: 47–74. [CrossRef] Chaisiri, Sivadon. 2013. Utilizing human intelligence in a Crowdsourcing marketplace for big data processing. Paper presented at the 2013 International Conference on Parallel and Distributed Systems, Seoul, Korea, December 15–18. Chambers, Elizabeth G., Mark Foulon, Helen Handfield-Jones, Steven M. Hankin, and Edward G. Michaels. 1998. The War for Talent. The McKinsey Quarterly 1: 44–57. Chandler, Jesse, Gabriele Paolacci, and Pam Mueller. 2013. Risks and rewards of Crowdsourcing marketplaces. In Handbook of Human Computation. New York: Springer, pp. 377–92. [CrossRef] Chi, Robert, and Melody Y. Kiang. 1993. Reasoning by coordination: An integration of case-based and rule-based reasoning systems. Knowledge-Based Systems 6: 103–13. [CrossRef] Chiaburu, Dan S., and Sophia V. Marinova. 2006. Employee role enlargement. Leadership and Organization Development Journal 27: 168–82. [CrossRef] Colbert, Amy, Nick Yee, and Gerard George. 2016. The digital workforce and the workplace of the future. Academy of Management Journal 59: 731–39. [CrossRef] Colquitt, Jason A. 2001. On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology 86: 386–400. [CrossRef] Colquitt, Jason A., Donald E. Conlon, Michael J. Wesson, Christopher O. Porter, and Yee Ng. 2001. Justice at the millennium: A meta-analytic review of 25 years of organizational justice research. Journal of Applied Psychology 86: 425–45. [CrossRef] Colquitt, Jason A., and Jessica B. Rodell. 2015. Measuring justice and fairness. In The Oxford Handbook of Justice in the Workplace. Edited by Russell Cropanzano and Maureen L. Ambrose. Oxford: Oxford University Press, pp. 187–202. [CrossRef] Cropanzano, Russell, and Maureen L. Ambrose. 2001. Procedural and distributive justice are more similar than you think: A monistic perspective and a research agenda. In Advances in Organization Justice. Edited by Jerald Greenberg and Russell Cropanzano. Stanford: Stanford University Press, pp. 119–51. Cropanzano, Russell, Zinta S. Byrne, Ramona Bobocel, and Deborah E. Rupp. 2001a. Moral virtues, fairness heuristics, social entities, and other denizens of organizational justice. Journal of Vocational Behavior 58: 164–209. [CrossRef] Cropanzano, Russell, and Deborah E. Rupp. 2003. An overview of organizational justice: Implications for work motivation. In Motivation and Work Behavior. Edited by Lyman W. Porter, Gregory Bigley and Richard M. Steers. New York: McGraw-Hill Irwin, pp. 82–95. Cropanzano, Russell, Deborah E. Rupp, Carolyn J. Mohler, and Marshall Schminke. 2001b. Three roads to organizational justice. In Research in Personnel and Human Resources Management. Edited by Ronald M. Buckley, Jonathon R. B. Halbesleben and Anthony R. Wheeler. Bingley: Emerald Group Publishing Limited, pp. 1–113. Cropanzano, Russell, Deborah E. Rupp, and Zinta S. Byrne. 2003. The relationship of emotional exhaustion to work attitudes, job performance, and organizational citizenship behaviors. Journal of Applied Psychology 88: 160–69. [CrossRef] [PubMed] Cugueró-Escofet, Natàlia, and Josep M. Rosanas. 2013. The just design and use of management control systems as requirements for goal congruence. Management Accounting Research 24: 23–40. [CrossRef] Cullina, Eoin, Kieran Conboy, and Lorraine Morgan. 2015. Measuring the crowd: A preliminary taxonomy of crowdsourcing metrics. Paper presented at the 11th International Symposium on Open Collaboration, San Francisco, CA, USA, August 19–21. Cummings, Larry L., and Donald P. Schwab. 1973. Performance in Organizations: Determinants and Appraisal. Culver City: Good Year Books. Daft, Richard L., and Robert H. Lengel. 1986. Organizational information requirements, media richness and structural design. Management Science 32: 554–71. [CrossRef] Dahlman, Carl J. 1979. The problem of externality. The Journal of Law and Economics 22: 141–62. [CrossRef] Deci, Edward L. 1975. Intrinsic Motivation. New York: Plenum Press. Deci, Edward L., and Richard M. Ryan. 1985. The general causality orientations scale: Self-determination in personality. Journal of Research in Personality 19: 109–34. http://dx.doi.org/10.1146/annurev-orgpsych-032414-111427 http://dx.doi.org/10.1007/978-1-4614-8806-4_30 http://dx.doi.org/10.1016/0950-7051(93)90025-o http://dx.doi.org/10.1108/01437730610657695 http://dx.doi.org/10.5465/amj.2016.4003 http://dx.doi.org/10.1037/0021-9010.86.3.386 http://dx.doi.org/10.1037/0021-9010.86.3.425 http://dx.doi.org/10.1093/oxfordhb/9780199981410 http://dx.doi.org/10.1006/jvbe.2001.1791 http://dx.doi.org/10.1037/0021-9010.88.1.160 http://www.ncbi.nlm.nih.gov/pubmed/12675403 http://dx.doi.org/10.1016/j.mar.2012.11.001 http://dx.doi.org/10.1287/mnsc.32.5.554 http://dx.doi.org/10.1086/466936 Adm. Sci. 2020, 10, 93 32 of 37 Deci, Edward L., and Richard M. Ryan. 2000. The “What” and “Why” of goal pursuits: Human needs and the self-determination of behavior. Psychological Inquiry 11: 227–68. [CrossRef] Deng, Xuefei, Kshiti D. Joshi, and Robert D. Galliers. 2016. The duality of empowerment and marginalization in Microtask Crowdsourcing: Giving voice to the less powerful through value sensitive design. MIS Quarterly 40: 279–302. [CrossRef] Dissanayake, Indika, Jie Zhang, and Bin Gu. 2015. Task division for team success in Crowdsourcing contests: Resource allocation and alignment effects. Journal of Management Information Systems 32: 8–39. [CrossRef] Duggan, James, Ultan Sherman, Ronan Carbery, and Anthony McDonnell. 2020. Algorithmic management and app-work in the gig economy: A research agenda for employment relations and HRM. Human Resource Management Journal 30: 114–32. [CrossRef] Dutta, Soumitra, and Piero P. Bonissone. 1993. Integrating case- and rule-based reasoning. International Journal of Approximate Reasoning 8: 163–203. [CrossRef] Dworkin, Ronald. 1986. Law’s Empire. Cambridge: Harvard University Press. Eickhoff, Carsten, Christopher G. Harris, Arjen P. de Vries, and Padmini Srinivasan. 2012. Quality through flow and immersion: Gamifying crowdsourced relevance assessments. Paper presented at the 35th International ACM SIGIR Conference on Research and Development in Information Retrieval, Portland, OR, USA, August 12–16. Estellés-Arolas, Enrique, and Fernando González-Ladrón-de-Guevara. 2012. Towards an integrated crowdsourcing definition. Journal of Information Science 38: 189–200. [CrossRef] Faradani, Siamak, Björn Hartmann, and Panagiotis G. Ipeirotis. 2011. What’s the right price? Pricing tasks for finishing on time. Human Computation 11: 26–31. Faullant, Rita, Johann Füller, and Katja Hutter. 2017. Fair play: Perceived fairness in crowdsourcing competitions and the customer relationship-related consequences. Management Decision 55: 1924–41. Fernández-Macías, Enrique. 2017. Automation, Digitisation and Platforms: Implications for Work and Employment. Loughlinstown: Eurofound, Available online: https://www.eurofound.europa.eu/publications/ report/2018/automation-digitisation-and-platforms-implications-for-work-and-employment (accessed on 11 November 2020). Fieseler, Christian, Eliane Bucher, and Christian P. Hoffmann. 2019. Unfairness by design? The perceived fairness of digital labor on Crowdworking platforms. Journal of Business Ethics 156: 987–1005. [CrossRef] Folger, Robert G., and Russell Cropanzano. 1998. Organizational Justice and Human Resource Management. Thousand Oaks: SAGE. Fortin, Marion, Irina Cojuharenco, David Patient, and Hayley German. 2014. It is time for justice: How time changes what we know about justice judgments and justice effects. Journal of Organizational Behavior 37: S30–S56. [CrossRef] Franke, Nikolaus, Peter Keinz, and Katharina Klausberger. 2013. Does this sound like a fair deal: Antecedents and consequences of fairness expectations in the individual’s decision to participate in firm innovation. Organization Science 24: 1495–516. [CrossRef] Gassenheimer, Jule B., Judy A. Siguaw, and Gary L. Hunter. 2013. Exploring motivations and the capacity for business crowdsourcing. AMS Review 3: 205–16. [CrossRef] Gilliland, Stephen W. 1993. The perceived fairness of selection systems: An organizational justice perspective. Academy of Management Review 18: 694–734. [CrossRef] Gleibs, Ilka H. 2016. Are all “research fields” equal? Rethinking practice for the use of data from crowdsourcing market places. Behavior Research Methods 49: 1333–42. [CrossRef] Golding, Andrew R., and Paul S. Rosenbloom. 1996. Improving accuracy by combining rule-based and case-based reasoning. Artificial Intelligence 87: 215–54. [CrossRef] Goldman, Alan H. 2015. Justice and Reverse Discrimination. Princeton: Princeton University Press. Goldman, Barry, and Russell Cropanzano. 2015. “Justice” and “fairness” are not the same thing. Journal of Organizational Behavior 36: 313–18. [CrossRef] Gond, Jean-Pascal, Assâad El Akremi, Valérie Swaen, and Nishat Babu. 2017. The psychological microfoundations of corporate social responsibility: A person-centric systematic review. Journal of Organizational Behavior 38: 225–46. [CrossRef] http://dx.doi.org/10.1207/s15327965pli1104_01 http://dx.doi.org/10.25300/misq/2016/40.2.01 http://dx.doi.org/10.1080/07421222.2015.1068604 http://dx.doi.org/10.1111/1748-8583.12258 http://dx.doi.org/10.1016/0888-613x(93)90001-t http://dx.doi.org/10.1177/0165551512437638 https://www.eurofound.europa.eu/publications/report/2018/automation-digitisation-and-platforms-implications-for-work-and-employment https://www.eurofound.europa.eu/publications/report/2018/automation-digitisation-and-platforms-implications-for-work-and-employment http://dx.doi.org/10.1007/s10551-017-3607-2 http://dx.doi.org/10.1002/job.1958 http://dx.doi.org/10.1287/orsc.1120.0794 http://dx.doi.org/10.1007/s13162-013-0055-8 http://dx.doi.org/10.5465/amr.1993.9402210155 http://dx.doi.org/10.3758/s13428-016-0789-y http://dx.doi.org/10.1016/0004-3702(95)00120-4 http://dx.doi.org/10.1002/job.1956 http://dx.doi.org/10.1002/job.2170 Adm. Sci. 2020, 10, 93 33 of 37 Greenberg, Jerald. 1986. Determinants of perceived fairness of performance evaluations. Journal of Applied Psychology 71: 340–42. [CrossRef] Greenberg, Jerald. 1987. A taxonomy of organizational justice theories. Academy of Management Review 12: 9–22. [CrossRef] Greenberg, Jerald. 1993. The Social Side of Fairness: Interpersonal and Informational Classes of Organizational Justice. In Justice in the Workplace: Approaching Fairness in Human Resource Management. Edited by Russell Cropanzano. Mahwah: Lawrence Erlbaum Associates, pp. 79–103. Greenberg, Jerald, and Robert Folger. 1983. Procedural justice, participation, and the fair process effect in groups and organizations. In Basic Group Processes. New York: Springer, pp. 235–56. [CrossRef] Gregg, Dawn G. 2010. Designing for collective intelligence. Communications of the ACM 53: 134–38. [CrossRef] Hambley, Laura A., Thomas A. O’Neill, and Theresa J. Kline. 2007. Virtual team leadership: The effects of leadership style and communication medium on team interaction styles and outcomes. Organizational Behavior and Human Decision Processes 103: 1–20. [CrossRef] Harms, Peter D., and Justin A. DeSimone. 2015. Caution! MTurk workers ahead-Fines doubled. Industrial and Organizational Psychology 8: 183–90. [CrossRef] Heponiemi, Tarja, Marko Elovainio, Laura Pekkarinen, Timo Sinervo, and Anne Kouvonen. 2008. The effects of job demands and low job control on work–family conflict: The role of fairness in decision making and management. Journal of Community Psychology 36: 387–98. [CrossRef] Herr, Paul M., Frank R. Kardes, and John Kim. 1991. Effects of word-of-Mouth and product-attribute information on persuasion: An accessibility-diagnosticity perspective. Journal of Consumer Research 17: 454–62. [CrossRef] Hetmank, Lars. 2013. Components and Functions of Crowdsourcing Systems-A Systematic Literature Review. Wirtschaftsinformatik 4: 55–69. [CrossRef] Hossain, Mokter. 2012. Users’ motivation to participate in online crowdsourcing platforms. Paper presented at the 2012 International Conference on Innovation Management and Technology Research, Malacca, Malaysia, May 21–22. Howcroft, Debra, and Birgitta Bergvall-Kåreborn. 2019. A typology of Crowdwork platforms. Work, Employment and Society 33: 21–38. [CrossRef] Howe, Jeff. 2006. The Rise of Crowdsourcing. WIRED. June 1. Available online: https://www.wired.com/2006/06/ crowds/ (accessed on 11 November 2020). Howe, Jeff. 2009. Crowdsourcing: Why the Power of the Crowd Is Driving the Future of Business. Fort Collins: Crown Pub. Internal Revenue Service. 2020. Topic No. 762 Independent Contractor vs. Employee. September 22. Available online: https://www.irs.gov/taxtopics/tc762 (accessed on 11 November 2020). Irani, Lilly. 2013. The cultural work of microwork. New Media and Society 17: 720–39. [CrossRef] Jäger, Georg, Laura S. Zilian, Christian Hofer, and Manfred Füllsack. 2019. Crowdworking: Working with or against the crowd? Journal of Economic Interaction and Coordination 14: 761–88. [CrossRef] Jebb, Andrew T., Scott Parrigon, and Sang Eun Woo. 2017. Exploratory data analysis as a foundation of inductive research. Human Resource Management Review 27: 265–76. [CrossRef] Jones, David A., and Daniel P. Skarlicki. 2003. The relationship between perceptions of fairness and voluntary turnover among retail Employees1. Journal of Applied Social Psychology 33: 1226–43. [CrossRef] Kamar, Ece, Severin Hacker, and Eric Horvitz. 2012. Combining human and machine intelligence in large-scale crowdsourcing. Paper presented at the 11th International Conference on Autonomous Agents and Multiagent Systems, Valencia, Spain, June 4–8. Kaufmann, Nicolas, Thimo Schulze, and Daniel Veit. 2011. More than fun and money. Worker Motivation in Crowdsourcing-A Study on Mechanical Turk. Paper presented at the 2011 Conference on Computer Supported Cooperative Work, Hangzhou, China, March 19–23. Keith, Melissa G., and Peter D. Harms. 2016. Is Mechanical Turk the answer to our sampling woes? Industrial and Organizational Psychology: Perspectives on Science and Practice 9: 162–67. Keith, Melissa G., Peter D. Harms, and Alexander C. Long. 2020. Worker health and well-being in the gig economy: A proposed framework and research agenda. In Research in Occupational Stress and Well Being. Bingley: Emerald Publishing Limited, pp. 1–33. [CrossRef] http://dx.doi.org/10.1037/0021-9010.71.2.340 http://dx.doi.org/10.5465/amr.1987.4306437 http://dx.doi.org/10.1007/978-1-4612-5578-9_10 http://dx.doi.org/10.1145/1721654.1721691 http://dx.doi.org/10.1016/j.obhdp.2006.09.004 http://dx.doi.org/10.1017/iop.2015.23 http://dx.doi.org/10.1002/jcop.20200 http://dx.doi.org/10.1086/208570 http://dx.doi.org/10.13140/2.1.3836.4166 http://dx.doi.org/10.1177/0950017018760136 https://www.wired.com/2006/06/crowds/ https://www.wired.com/2006/06/crowds/ https://www.irs.gov/taxtopics/tc762 http://dx.doi.org/10.1177/1461444813511926 http://dx.doi.org/10.1007/s11403-019-00266-1 http://dx.doi.org/10.1016/j.hrmr.2016.08.003 http://dx.doi.org/10.1111/j.1559-1816.2003.tb01947.x http://dx.doi.org/10.1108/s1479-355520200000018002 Adm. Sci. 2020, 10, 93 34 of 37 Keith, Melissa G., Louis Tay, and Peter D. Harms. 2017. Systems perspective of Amazon mechanical turk for organizational research: Review and recommendations. Frontiers in Psychology 8: 1359. [CrossRef] Kelman, Herbert C. 1958. Compliance, identification, and internalization three processes of attitude change. Journal of Conflict Resolution 2: 51–60. [CrossRef] Kelman, Herbert C. 2017. Further thoughts on the processes of compliance, identification, and internalization. In Social Power and Political Influence. Abingdon-on-Thames: Routledge, pp. 125–71. Kittur, Aniket, Jeffrey V. Nickerson, Michael Bernstein, Elizabeth Gerber, Aaron Shaw, John Zimmerman, Matt Lease, and John Horton. 2013. The future of crowd work. Paper presented at the 2013 Conference on Computer Supported Cooperative Work, San Antonio, TX, USA, February 23–27. Landers, Richard N., and Tara S. Behrend. 2015. An inconvenient truth: Arbitrary distinctions between organizational, mechanical turk, and other convenience samples. Industrial and Organizational Psychology 8: 142–64. [CrossRef] Lankford, William M., and Faramarz Parsa. 1999. Outsourcing: A primer. Management Decision 37: 310–16. [CrossRef] Latané, Bibb, James H. Liu, Andrzej Nowak, Michael Bonevento, and Long Zheng. 1995. Distance matters: Physical space and social impact. Personality and Social Psychology Bulletin 21: 795–805. [CrossRef] Lee, Moohun, Sunghoon Cho, Hyokyung Chang, Junghee Jo, Hoiyoung Jung, and Euiin Choi. 2008. Auditing system using rule-based reasoning in ubiquitous computing. Paper presented at the 2008 International Conference on Computational Sciences and Its Applications, Perugia, Italy, June 30–July 3. Leventhal, Gerald S. 1980. What should be done with equity theory? New approaches to the study of fairness in social relationships. In Social Exchange: Advances in Theory and Research. Edited by Kenneth J. Gergen, Martin S. Greenberg and Richard H. Willis. New York: Plenum, pp. 27–55. [CrossRef] Leung, Gabriel, and Vincent Cho. 2018. An Empirical Study of Motivation, Justice and Self-Efficacy in Solvers’ Continued Participation Intention in Microtask Crowdsourcing. Paper presented at the American Conference on Information Systems, New Orleans, LA, USA, August 16–18. Litman, Leib, Jonathan Robinson, and Cheskie Rosenzweig. 2014. The relationship between motivation, monetary compensation, and data quality among US- and India-based workers on mechanical turk. Behavior Research Methods 47: 519–28. [CrossRef] Liu, Ying, and Yongmei Liu. 2019. The effect of workers’ justice perception on continuance participation intention in the crowdsourcing market. Internet Research 29: 1485–508. [CrossRef] Locke, Edwin A. 2007. The case for inductive theory Building. Journal of Management 33: 867–90. [CrossRef] Ma, Xiao, Lara Khansa, and Jinghui Hou. 2016. Toward a contextual theory of turnover intention in online crowd working. Paper presented at the International Conference on Information Systems, Dublin, Ireland, December 11–14. Ma, Xiao, Lara Khansa, and Sung S. Kim. 2018. Active community participation and Crowdworking turnover: A longitudinal model and empirical test of three mechanisms. Journal of Management Information Systems 35: 1154–87. [CrossRef] Marjanovic, Sonja, Caroline Fry, and Joanna Chataway. 2012. Crowdsourcing based business models: In search of evidence for innovation 2.0. Science and Public Policy 39: 318–32. [CrossRef] Mandl, Irene, Maurizio Curtarelli, Sara Riso, Oscar Vargas-Llave, and Elias Georgiannis. 2015. New Forms of Employment. Loughlinstown: Eurofound, Available online: https://www.eurofound.europa.eu/publications/ report/2015/working-conditions-labour-market/new-forms-of-employment (accessed on 11 November 2020). Mao, Andrew, Ece Kamar, Yiling Chen, Eric Horvitz, Megan E. Schwamb, Chris J. Lintott, and Arfon M. Smith. 2013. Volunteering versus work for pay: Incentives and tradeoffs in crowdsourcing. Paper presented at the First AAAI Conference on Human Computation and Crowdsourcing, Palm Springs, CA, USA, November 7–9. Marling, Cynthia R., Grace. J. Petot, and Leon S. Sterling. 1999. Integrating case-based and rule-based reasoning to meet multiple design constraints. Computational Intelligence 15: 308–32. Milland, Kristy. 2016. Crowdwork: The fury and the fear. In The Digital Economy and the Single Market. Edited by Werner Wobbe, Elva Bova and Catalin Dragomirescu-Gaina. Brussels: Foundation for European Progressive Studies, pp. 83–92. Mitchell, Terrence R. 1997. Matching motivational strategies with organizational contexts. In Research in Organizational Behavior. Edited by Larry L. Cummings and Barry M. Staw. Greenwich: JAI, pp. 57–149. http://dx.doi.org/10.3389/fpsyg.2017.01359 http://dx.doi.org/10.1177/002200275800200106 http://dx.doi.org/10.1017/iop.2015.13 http://dx.doi.org/10.1108/00251749910269357 http://dx.doi.org/10.1177/0146167295218002 http://dx.doi.org/10.1007/978-1-4613-3087-5_2 http://dx.doi.org/10.3758/s13428-014-0483-x http://dx.doi.org/10.1108/intr-02-2018-0060 http://dx.doi.org/10.1177/0149206307307636 http://dx.doi.org/10.1080/07421222.2018.1523587 http://dx.doi.org/10.1093/scipol/scs009 https://www.eurofound.europa.eu/publications/report/2015/working-conditions-labour-market/new-forms-of-employment https://www.eurofound.europa.eu/publications/report/2015/working-conditions-labour-market/new-forms-of-employment Adm. Sci. 2020, 10, 93 35 of 37 Nakatsu, Robbie T., Elissa B. Grossman, and Charalambos L. Iacovou. 2014. A taxonomy of crowdsourcing based on task complexity. Journal of Information Science 40: 823–34. Opsahl, Robert L., and Marvin D. Dunnette. 1966. Role of financial compensation in industrial motivation. Psychological Bulletin 66: 94–118. Paolacci, Gabriele, Jesse Chandler, and Panagiotis G. Ipeirotis. 2010. Running experiments on Amazon Mechanical Turk. Judgment and Decision Making 5: 411–19. Porter, Christopher O., Ryan Outlaw, Jake P. Gale, and Thomas S. Cho. 2019. The use of online panel data in management research: A review and recommendations. Journal of Management 45: 319–44. Prentzas, Jim, and Ioannis Hatzilygeroudis. 2009. Combinations of case-based reasoning with other intelligent methods. International Journal of Hybrid Intelligent Systems 6: 189–209. [CrossRef] Prpić, John, Prashant P. Shukla, Jan H. Kietzmann, and Ian P. McCarthy. 2015. How to work a crowd: Developing crowd capital through crowdsourcing. Business Horizons 58: 77–85. [CrossRef] Rawls, John. 2005. A Theory of Justice. Cambridge: Harvard University Press. Rossille, Delphine, Jean-François Laurent, and Anita Burgun. 2005. Modelling a decision-support system for oncology using rule-based and case-based reasoning methodologies. International Journal of Medical Informatics 74: 299–306. [CrossRef] [PubMed] Rothschild, Michael L. 1999. Carrots, sticks, and promises: A conceptual framework for the management of public health and social issue behaviors. Journal of Marketing 63: 24–37. [CrossRef] Rousseau, Denise M. 1990. New hire perceptions of their own and their employer’s obligations: A study of psychological contracts. Journal of Organizational Behavior 11: 389–400. [CrossRef] Ryan, Richard M., and Edward L. Deci. 2000. The darker and brighter sides of human existence: Basic psychological needs as a unifying concept. Psychological Inquiry 11: 319–38. [CrossRef] Ryan, Ann Marie, and Jennifer L. Wessel. 2015. Implications of a changing workforce and workplace for justice perceptions and expectations. Human Resource Management Review 25: 162–75. Schaufeli, Wilmar B., Isabel M. Martinez, Alexandra Marques Pinto, Marisa Salanova, and Arnold B. Bakker. 2002. Burnout and engagement in University students. Journal of Cross-Cultural Psychology 33: 464–81. [CrossRef] Schulte, Julian, Katharina D. Schlicher, and Günter W. Maier. 2020. Working everywhere and every time? Chances and risks in crowdworking and crowdsourcing work design. Gruppe. Interaktion. Organisation. Zeitschrift für Angewandte Organisationspsychologie (GIO) 51: 59–69. [CrossRef] Segal, Lewis M., and Daniel G. Sullivan. 1997. The growth of temporary services work. Journal of Economic Perspectives 11: 117–36. [CrossRef] Semuels, Alana. 2018. The Internet Is Enabling a New Kind of Poorly Paid Hell. The Atlantic. February 5. Available online: https://www.theatlantic.com/business/archive/2018/01/amazon-mechanical-turk/551192/ (accessed on 11 November 2020). Shapiro, Debra L., Holly Buttner, and Bruce Barry. 1994. Explanations: What factors enhance their perceived adequacy? Organizational Behavior and Human Decision Processes 58: 346–68. [CrossRef] Sharpe-Wessling, Kathryn, Joel Huber, and Oded Netzer. 2017. MTurk character misrepresentation: Assessment and solutions. Journal of Consumer Research 44: 211–330. [CrossRef] Sheridan, Thomas B. 1992. Musings on telepresence and virtual presence. Presence: Teleoperators and Virtual Environments 1: 120–26. [CrossRef] Siemsen, Enno, Aleda V. Roth, and Sridhar Balasubramanian. 2007. How motivation, opportunity, and ability drive knowledge sharing: The constraining-factor model. Journal of Operations Management 26: 426–45. [CrossRef] Silberman, Six, Bill Tomlinson, Rochelle LaPlante, Joel Ross, Lilly Irani, and Andrew Zaldivar. 2018. Responsible research with crowds. Communications of the ACM 61: 39–41. [CrossRef] Simula, Henri, and Tuomas Ahola. 2014. A network perspective on idea and innovation crowdsourcing in industrial firms. Industrial Marketing Management 43: 400–8. [CrossRef] Sitkin, Sim B., and Robert J. Bies. 1993. Social accounts in conflict situations: Using explanations to manage conflict. Human Relations 46: 349–70. [CrossRef] Skarlicki, Daniel P., Danielle D. van Jaarsveld, Ruodan Shao, Young Ho Song, and Mo Wang. 2016. Extending the multifoci perspective: The role of supervisor justice and moral identity in the relationship between customer justice and customer-directed sabotage. Journal of Applied Psychology 101: 108–21. [CrossRef] http://dx.doi.org/10.3233/his-2009-0096 http://dx.doi.org/10.1016/j.bushor.2014.09.005 http://dx.doi.org/1016/j.ijmedinf.2004.06.005 http://www.ncbi.nlm.nih.gov/pubmed/15694636 http://dx.doi.org/10.1177/002224299906300404 http://dx.doi.org/10.1002/job.4030110506 http://dx.doi.org/10.1207/s15327965pli1104_03 http://dx.doi.org/10.1177/0022022102033005003 http://dx.doi.org/10.1007/s11612-020-00503-3 http://dx.doi.org/10.1257/jep.11.2.117 https://www.theatlantic.com/business/archive/2018/01/amazon-mechanical-turk/551192/ http://dx.doi.org/10.1006/obhd.1994.1041 http://dx.doi.org/10.1093/jcr/ucx053 http://dx.doi.org/10.1162/pres.1992.1.1.120 http://dx.doi.org/10.1016/j.jom.2007.09.001 http://dx.doi.org/10.1145/3180492 http://dx.doi.org/10.1016/j.indmarman.2013.12.008 http://dx.doi.org/10.1177/001872679304600303 http://dx.doi.org/10.1037/apl0000034 Adm. Sci. 2020, 10, 93 36 of 37 Slade, Stephen. 1991. Case-based reasoning: A research paradigm. Artificial Intelligence Magazine 12: 42–55. [CrossRef] Smith, Derek, Mohammad M. G. Manesh, and Asrar Alshaikh. 2013. How can entrepreneurs motivate Crowdsourcing participants? Technology Innovation Management Review 3: 23–30. [CrossRef] Steuer, Jonathan. 1992. Defining virtual reality: Dimensions determining telepresence. Journal of Communication 42: 73–93. [CrossRef] Stewart, Neil, Christoph Ungemach, Adam J. Harris, Daniel M. Bartels, Ben R. Newell, Gabriele Paolacci, and Jesse Chandler. 2015. The average laboratory samples a population of 7300 Amazon Mechanical Turk workers. Judgment and Decision Making 10: 479–91. Sundararajan, Arun. 2016. The Sharing Economy: The End of Employment and the Rise of Crowd-Based Capitalism. Cambridge: MIT Press. Surowiecki, James. 2005. The Wisdom of Crowds. New York: Anchor. Tekleab, Amanuel G., Kathryn M. Bartol, and Wei Liu. 2005. Is it pay levels or pay raises that matter to fairness and turnover? Journal of Organizational Behavior 26: 899–921. [CrossRef] Thibaut, John, and Laurens Walker. 1978. A theory of procedure. California Law Review 66: 541–66. [CrossRef] Thomas, Joe G., and Ricky W. Griffin. 1989. The power of social information in the workplace. Organizational Dynamics 18: 63–75. [CrossRef] Tyler, Tom R., and Robert J. Bies. 1990. Beyond Formal Procedures: The Interpersonal Context of Procedural Justice. In Applied Social Psychology and Organizational Settings. Edited by Jason S. Carroll. Mahwah: Erlbaum Associates, pp. 77–98. [CrossRef] Tyler, Tom R., and Steven L. Blader. 2000. Cooperation in Groups: Procedural Justice, Social Identity, and Behavioral Engagement. East Sussex: Psychology Press. Vander Elst, Tinne, Jacqueline Bosman, Nele De Cuyper, Jeroen Stouten, and Hans De Witte. 2013. Does positive affect buffer the associations between job insecurity and work engagement and psychological distress? A test among South African workers. Applied Psychology: An International Review 62: 558–70. Vukovic, Maja, and Arjun Natarajan. 2013. Operational excellence in IT services using enterprise Crowdsourcing. Paper presented at the 2013 IEEE International Conference on Services Computing, Santa Clara, CA, USA, June 28–July 3. Wang, Nan, Yongqiang Sun, Xiao-Liang Shen, and Xi Zhang. 2018. A value-justice model of knowledge integration in wikis: The moderating role of knowledge equivocality. International Journal of Information Management 43: 64–75. Watson, Ian, and Farhi Marir. 1994. Case-based reasoning: A review. The Knowledge Engineering Review 9: 327–54. [CrossRef] Weng, Jiaxiong, Huimin Xie, Yuanyue Feng, Ruoqing Wang, Yi Ye, Peiying Huang, and Xizhi Zheng. 2019. Effects of gamification elements on crowdsourcing participation: The mediating role of justice perceptions. Paper presented at the International Conference on Electronic Business, Newcastle upon Tyne, UK, December 8–12. Wexler, Mark N. 2011. Reconfiguring the sociology of the crowd: Exploring crowdsourcing. International Journal of Sociology and Social Policy 31: 6–20. [CrossRef] Wheeler, Anthony R., Vickie C. Gallagher, Robyn L. Brouer, and Chris J. Sablynski. 2007. When person-organization (mis)fit and (dis)satisfaction lead to turnover. Journal of Managerial Psychology 22: 203–19. [CrossRef] Woo, Sang Eun, Ernest H. O’Boyle, and Paul E. Spector. 2017. Best practices in developing, conducting, and evaluating inductive research. Human Resource Management Review 27: 255–64. [CrossRef] Yang, Congcong, Yuanyue Feng, Xizhi Zheng, Ye Feng, Ying Yu, Ben Niu, and Pianpian Yang. 2018. Fair or Not: Effects of Gamification Elements on Crowdsourcing Participation. Paper presented at the International Conference on Electronic Business, Guilin, China, December 2–6. Yuen, Man-Ching, Irwin King, and Kwong-Sak Leung. 2011. A survey of crowdsourcing systems. Paper presented at the 2011 IEEE Third International Conference on Privacy, Security, Risk and Trust and 2011 IEEE Third International Conference on Social Computing, Boston, MA, USA, October 9–11. Zhao, Yuxiang, and Qinghua Zhu. 2012. Exploring the motivation of participants in crowdsourcing contest. Paper presented at the 33rd International Conference on Information Systems, Melbourne, Australia, June 28–July 2. Zheng, Haichao, Dahui Li, and Wenhua Hou. 2011. Task design, motivation, and participation in Crowdsourcing contests. International Journal of Electronic Commerce 15: 57–88. [CrossRef] http://dx.doi.org/10.21236/ada202363 http://dx.doi.org/10.22215/timreview/657 http://dx.doi.org/10.1111/j.1460-2466.1992.tb00812.x http://dx.doi.org/10.1002/job.352 http://dx.doi.org/10.2307/3480099 http://dx.doi.org/10.1016/0090-2616(89)90043-0 http://dx.doi.org/10.4324/9781315728377-4 http://dx.doi.org/10.1017/s0269888900007098 http://dx.doi.org/10.1108/01443331111104779 http://dx.doi.org/10.1108/02683940710726447 http://dx.doi.org/10.1016/j.hrmr.2016.08.004 http://dx.doi.org/10.2753/jec1086-4415150402 Adm. Sci. 2020, 10, 93 37 of 37 Zou, Lingfei, Jinlong Zhang, and Wenxing Liu. 2015. Perceived justice and creativity in crowdsourcing communities: Empirical evidence from China. Social Science Information 54: 253–79. [CrossRef] Publisher’s Note: MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations. © 2020 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/). http://dx.doi.org/10.1177/0539018415583382 http://creativecommons.org/ http://creativecommons.org/licenses/by/4.0/. Introduction Literature Review Key Elements of Crowd-Based Labor Review of Crowd-Based Labor Platforms Platform Review Results Benefits and Concerns of Crowd-Based Labor Crowd-Based Labor Concerns and Their Relation to Human Resource Management (HRM) Review of Organizational Justice Review of Organizational Justice and Turnover in Crowdwork Literature Literature Review Results Conceptual Work—Antecedents of Crowd-Based Workers’ Organizational Justice Perception Compensation Policy and Distributive Justice Compensation Policy and Motivation Performance Evaluation Methods and Procedural Justice Case-Based vs. Rule-Based Performance Evaluation Considerate Communication and Interactional Justice Communication Quality Conceptual Work—Outcomes of Organizational Justice Issues Turnover Job Mobility Escalation of Crowd-Based Turnover Discussion General Discussion Contributions Theoretical Implications Practical Implications Future Research Conclusions References 
work_w5wwkm4yfzcxjnke2kdp4yjati	----	G. Maglione (2017) The political rationality of restorative justice, ​Theoretical Criminology (forthcoming) Abstract This paper investigates the political conditions which have enabled the development of restorative justice, in England and Wales, over the last 30 years. The rise of restorative justice is considered integral to the emergence of a (rather incoherent) range of political problematics, addressed by a panoply of governmental technologies, and informed by competing political rationalities. By applying a governmentality approach, the work aims to shed light on the assemblage of ambivalent principles and values which constitute restorative justice by linking them to context-specific political contingencies. This could have implications in understanding both the fragmentary growth of restorative justice in England and Wales, and, more generally, the political dimension of restorative practices, beyond the British borders. Keywords​: Restorative Justice, Ethopolitics, Michel Foucault, Governmentality Introduction The political context of RJ has been extensively explored by both RJ advocates (Braithwaite, 1999; Marshall, 1996; Wright, 1996) and scholars (Dignan, 2005; Hoyle and Cunneen, 2010; Johnstone, 2011; Newburn and Crawford, 2003). The present work can be located within the limited province of the literature on the political background of RJ applying a governmentality mode of analysis (Lippens, 2014; O’Malley, 2009; Pavlich, 2005; Richards, 2011). The paper revolves around the idea that the spreading of legal/policy measures, as well as practical and theoretical interest around RJ, in England and Wales, over the last 30 years, has been possible due to the parallel rise of a combination of political rationalities – that is, ​ethopolitics (Rose 1996b, 1999a) – informing the governmental practice in the relevant geo-historical setting. To think in terms of ‘political rationalities’ (Foucault, 1982, 1991, 2008) helps to offer an inclusive, productive and politically engaged approach which connects social, cultural and ethical dimensions of the practice of government with penal discourses, institutions and practices. The paper starts by describing the methodological and theoretical orientations which drive this work. After drawing a working definition of RJ, the research maps out a number of context-specific political problematics and technologies relevant to the rise of RJ. The paper finally distills the political rationalities which inform this landscape, and their subjectivating effects. Some final reflections are also offered. This works aims to be helpful to those interested in deepening their understanding of the development of RJ by linking this to specific political mentalities. This could have implications both in terms of reframing the steady but patchy growth of RJ in England and Wales and of re-thinking the political drive and effects of restorative practices, beyond the British borders. 1. Methodological and theoretical considerations Governmentality is an analytical grid which aims to reconstruct the ‘reasoned way of governing best and, at the same time, [the] reflection on the best possible way of governing’ (Foucault, 2008: 2). This framework is solely concerned with how the governmental practice (i.e. process of conducting others’ 1 conduct (Foucault, 1982: 225)), is conceptualised and rationalised by a multiplicity of social and individual actors (Foucault, 1991: 84). The focus is posited on the rationales of government: how ends and means, moral justifications, problems and solutions of government are generated, problematised and conveyed. From this perspective, the primary feature of the governmental practice are ​problematics of government, a fluid set of predicaments and the possible responses to them, contingently ​elaborated by a plurality of actors (Rose and Miller, 1992: 174). The deployment of responses to political problems is operated by ​political ​technologies ​which ‘shape, normalize and instrumentalize the conduct, thought, decisions and aspirations of others in order to achieve the objects they consider desirable’ (Miller and Rose, 1990: 8). From the examination of these two dimensions it is possible to infer the ​political rationalities which, often through ​strategic combinations (Rose, O’Malley and Valverde, 2006: 88), drive the art of government (Rose and Miller, 1992: 175). The main advantages of this approach are its inclusivity (by subjecting to political analysis a domain much broader than state juridical operations), productivity (by connecting politics with epistemological, moral and ontological issues) and political engagement (by opening up new spaces of political contestation, beyond the critique of state politics). The paper advances the hypothesis that the development of RJ is a possible response to specific political problematics, enacted by certain technologies and permeated by a combination of competing political rationalities (that is ‘​ethopolitics​’ (Rose 1996b, 1999a)). Problematics, technologies and rationalities are conceived of as discourses (Miller and Rose, 1990: 4), that is, cultural formations produced by contextual actors in order ‘to structure the possible field of action of others’ (Foucault, 1982: 221). These discourses are reconstructed by piecing together scientific knowledges, ethical doctrines and legal/policy narratives on the matters (problematics), modes (technologies) and logics (rationalities) of government, circulating in the relevant context and encoded in a plurality of texts. By intersecting, competing and conflicting, they provide scholars, practitioners and policymakers with particular vocabularies and ways of making sense of public and individual issues, including crime and crime responses, thus shaping distinctive needs, ambitions and interests. RJ emerges when marginal justice practices reach a certain epistemological/political threshold, that is, when their language, assumptions and justifications become consistent with those needs and interests, as part of a contingent transformation involving the art of government. Such an ‘emergence’ is not a historical end-point but an ongoing process concerning a plethora of actors, whereby unexpected clashes and alliances, drawbacks and advances seem to alternate. Governmentality-oriented explorations of RJ have been available since the early 2000s (Lippens, 2015; O’Malley, 2009; Pavlich 2005; Richards, 2011). Compared to this extant literature, this work is original in a number of interconnected ways. Firstly, it targets a specific geo-historical domain (England and Wales, 1985–2015) with a long-lasting history of reparative practices and a steady growth, over the last three decades, of policy/legal regulations, administrative bodies, fundings and services in the field of RJ. To date, governmentality-focussed investigations of RJ in this context are not available. Additionally, the paper uses the relatively under-exploited concept of ‘ethopolitics’ (Rose 1996b, 1999a), purposely re-elaborated (Garland, 1997; O’Malley, 1999), as analytical scheme to understand RJ’s political “roots”. There are three main limitations to the research. Firstly, discourses are articulated in practices and institutions, and this likely alters their political rationales. However, the conceptualisation of the governmental practice is still a significant research object, since it constitutes one dimension of the actual government. From this perspective, the paper aims to develop historically-grounded critical 2 insights on the political background of RJ, integral to a deliberately incomplete genealogical work (Garland, 1997). Secondly, this study is a theoretical investigation of a long-term historical dynamic, and as such tends to be abstract and over-generalising. Yet, the primary goal is to map out certain kinds of power/knowledge which underpin the development of RJ. From this angle, abstraction and generalisation are useful heuristic instruments (Garland, 2001: 21). Finally, the following analyses apply only to RJ in criminal justice settings, and practised by victim-offender mediation and conferencing. 2.1 ​Restorative justice: a working meta-definition The paper understands RJ as a field of discourses on why and how to deal with crimes, which has developed in western countries since the early 1980s. From the variety of RJ approaches it is possible to elaborate three ideal-typical discourses, which cover much of that field: ‘encounter’, ‘reparative’ and ‘transformative’ (Johnstone and Van Ness, 2007: 1). The encounter discourse highlights the active participation of relevant crime stakeholders (‘victim’, ‘offender’ and ‘community’) in order to manage the consequences of the criminal behaviour (Zehr, 1990). The restorative conference makes possible the expression and discussion of the emotional, social, symbolic and material issues at stake, aiming to restore the relationships among the relevant stakeholders. The reparative discourse refers to an understanding of how to deal with crimes and their consequences, based on the idea of repairing harms (Wright, 1982, 1996). This view is critical to the retributive idea to coerce the offender to endure pain proportionate to the gravity of the crime committed, emphasising instead community-based reparation of the crime’s harmful consequences. Finally, in the transformative discourse, RJ is understood as an overall worldview which can lead people to perceive and act upon the world and themselves in a restorative way, i.e. relying on peacebuilding through dialogue and agreement (Sullivan and Tifft, 2001). The premise of this view is a relational understanding of humans (Johnstone and Van Ness, 2007: 17), their “natural” interconnectedness which can be hindered by destructive and antisocial behaviours. These three main discourses work as repertoires from which values, aims, goals, metaphors, storylines and stakeholders’ images can be mobilised, with intersections and tensions (ANONYMISED), by policy-makers, practitioners, reformers. In England and Wales, actual RJ programmes (Davis, 1992; Shapland et al., 2006), regulatory bodies’ documents (Restorative Justice Consortium, 2004; Restorative Justice Council, 2011, 2015) and policy and legal texts (No More Excuses white paper 1997; Crime and Disorder Act 1998; Youth justice and Criminal Evidence Act 1999; Justice for All white paper 2002; Criminal Justice Act 2003; Criminal Justice and Immigration Act 2008; Restorative Justice Action Plan 2013) apply and combine these discourses in several ways. Additionally, due the diversity of values underpinning the different discourses, RJ appears also as an ambivalent assemblage of aspirations, aims and goals. The reasons for such an entanglement are multiple. Historically, the development of local reparative programs since the late 1970s, variously promoted by both victim and offender’s “movements” (Davis, 1992: 31), combined with the influence of theoretical developments from the USA and with exchanges with scholars and practitioners from Australia and New Zealand (Marshall, 1999: 14), has likely contributed toward the complexity of RJ in England and Wales. However, being the way societies envision and enact responses to crimes a constitutively political matter (Foucault, 1977), it should be considered the political dimension of such a dynamic entanglement, in order to understand the development of the RJ field. 3 3 The political dimension of restorative justice in England and Wales: a governmentality perspective From a governmentality viewpoint, RJ can be conceptualised as an effect of certain political technologies, i.e. a response to heterogeneous problematics of government, informed by a rather incoherent, contingent and strategic combination of political rationalities (i.e. ‘​ethopolitics​’ (Rose 1996b, 1999a)). The actors of this dynamic are individuals, groups and agencies engaged in daily meaning-making, problem-generating and problem-solving activities which aim to make people amenable to direction, in order to achieve desirable objectives. However, this process is not a perfected and rational one. Due to the changing composition of the governmental actors and their context, it is likely that unexpected convergences and conflicts will be engendered (Rose, O’Malley and Valverde, 2006: 98). As a consequence, political technologies deploy unfinished and inconsistent responses to the problematics at stake (O’Malley, 1999: 182). As the paper will argue, the emergence (and inner structure) of RJ is an instance of these fragmentary responses. 3.1 Political problematics Everyday youth offenders and the end of the ‘excuse culture’ Over the last three decades, the political configuration of the youth crime “problem” has resulted in specific ways of thinking and doing. The ‘juvenile delinquent’, once understood as a transient condition addressed by needs-based tools, during the 1970s becomes a distinctively harmful criminal type (Pitts, 2001). Juvenile delinquents are now working class muggers who do not grow out of crime, whose actions are often highly harmful (Pitts, 2001: 9) and require restrictive measures. As Muncie (1999: 153) notices, as a consequence of this understanding, from the late 1970s, the welfare principle came to be “counterbalanced” by an authoritarian approach, linked to conservative political preferences and exemplified by the Criminal Justice Act 1982 and 1991. From the second half of 1990s a further shift occurs, in terms of both political rendering of the juvenile delinquent (or youth offender) and of responses to this problematic. The image of “welfarist” juvenile delinquents, although sedimented in the practice of penal institutions, such as probation services, loses grip on media and political discourses. Working class muggers become “alien” criminals, whilst parallelly a new representation of “everyday” youth offenders gradually surfaces public debates (Garland, 2001). This latter category, particularly relevant for the development of RJ, consists of de-responsibilised youths who breach the interpersonal trust which ties them and the victim together, within a shared community (ANONYMISED). Their actions require formal consequences which involve also parents and the community at large. To respond to these youth ‘ideal offenders’ a new strategy slowly emerges, whereby authoritarian instruments are combined with a community-based re-moralizing ethos (Muncie, 1999; Newburn and Crawford, 2003) and informed by the ambiguous rhetoric of ending the ‘excuse culture’ (Home Office, 1997). Measures contained in the Crime and Disorder Act 1998 and Youth justice and Criminal Evidence act 1999 such as the abolishment of the ​doli incapax and curfew measures (for the incorrigible youth delinquents), parenting orders, reparation orders, youth offenders panels (for the everyday youth offenders), represent the “solution” to the youth problem. The (incoherent) goals pursued are to responsibilise in the community, strengthening controls but also promoting alternatives to custody, as well as to diffuse a culture of early prevention and support for everyday youth offenders (Home Office, 2002). The production of such an web of narratives, 4 overlapping yet opposing, is the effect of the combined activities of third sector agencies, criminal justice and social policy scholars, reformers and practitioners, as well as governmental bodies. These actors and their discourses around youth offenders, have played a critical role for the emergence of RJ. For example, the ‘three Rs’ (responsibility, restoration and reintegration) policy which will inform New Labour plans on (everyday) youth offenders (1997, 2001b), was originally elaborated by a third sector agency, the National Association for the Care & Resettlement of Offenders (NACRO ) (Green, 2014). 1 This approach (echoing RJ’s basic tenets) establishes the youth’s acceptance of responsibility for the harm, the reparation of its consequences and then the reintegration in the community as the pillars of justice interventions, at least for everyday youth offenders. In a similar vein, probation services’ (welfarist) emphasis on diversion, mitigation and offender education, combined with the ideas of penal minimalism and ‘civilising’ criminal justice (Christie, 1977; Harding, 1982; Wright, 1982) are injected at the heart of reparative initiatives for minor youth criminals in the 1980s (Liebman, 2007: 40) and will remain as a constant component of RJ as a diversionary intervention with youth offenders (Davis, 1992). Finally, cultural exchanges with youth justice practitioners and scholars from USA, Australia and New Zealand, often mediated by religious groups (mainly Quaker and Mennonite), since the 1980s, have fostered interest around reparative practices (Liebman, 2007: 41) or theories like ‘reintegrative shaming’, which will contribute toward the development of RJ programs in the UK, especially for less serious crimes committed by (everyday) youth offenders. Reinventing the crime victim (again) A second problematic is represented by the “marginalisation” of the crime victim within the criminal justice system. This is a topic widely discussed within the RJ literature (Johnstone, 2011: 51; Wright, 1996: 100) and that is analysed here from the perspective of its political construction in the relevant geo-historical context. The development of this discourse is (once again) the contingent result of the action of several players: political parties, media, voluntary/third sector agencies, academic scholars. It is well known how political parties (from both conservative and labour backgrounds) initiate an instrumental re-definition of the crime victim in the early 1980s (Kearon and Godfrey, 2007), both in terms of political use of victimisation surveys (Mayhew and Hough, 1988) and of political re-coding the crime victims’ dissatisfaction toward the criminal justice responses. The victim re-enters the political agenda as a symbolic actor able to appeal to the wide public, by catalysing sympathy and generating emotionally loaded responses to crime (Garland, 2001: 143), as a disempowered subject with idealised characteristics, “asking for” expressive punishments. The emphasis on specific crime victims, considered discrete entities, ontologically distinguished from the offender, increasingly features mass-media dramatised accounts on crime since the 1980s and reaches a critical peak in the 1990s (Jewkes, 2004). This account is partly challenged by third-sector organisations coalescing around an initial British grassroot “victims’ movement” (Rock, 1990). Here the victim is characterised by specific socio-demographic features (women and children), personal qualities (vulnerability, disempowerment, marginalisation) and advances specific demands: involvement, compensation, restitution, punishment. Reparation, in this context, is a contentious topic due to its perceived ambivalent status. Although the early British victims’ movement (and namely the National Association of Victim Support Schemes (NAVSS)) contributed to the creation of relevant services, conferences and other initiatives (including the launch in 1984 of the Forum for initiatives in reparation and mediation), the perceived tight links between reparation and offender-centered diversionary programs advanced by 1 NACRO (1997) ​3Rs: responsibility, restoration & reintegration. A new three Rs for young offenders.​ London: NACRO. 5 probation services, was a deterrent to a complete acceptance of the reparative option (Reeves, 1989: 44). In the 1990s, the fragmentary victims’ movement (led by NAVSS’s successor, i.e. Victim Support) reaches further visibility through the consolidation of practical initiatives (e.g. Victim Support Schemes), in a situation of increasing media attention toward crime victims (Walklate, 2007: 132), and so it does the relevant victim’s image. This growth intertwines with the development of a “new” victimology, which advocates for a shift from an “old” to a “new” way of understanding and supporting crime victims (focussing on their needs and not only rights) (Maguire, 1985; Mawby, 1988; Shapland et al., 1985), a perspective which also progressively contributes toward the Home Office way of thinking about victims (Home Office, 2002, 2003a). The overarching theme across these entangled yet conflicting representations of the victim’s problematic, is a critique of the current criminal justice, though without questioning its structural issues (Davis, 1992: 176), as well as the response to it: the creation of a “victim-centered” criminal justice (Garland, 2001: 11). This translates into a wide range of policy documents (Home Office, 2001b, 2002, 2005), legal initiatives (Victim’s Charter 1990, 1996; Code of Practice for Victims of Crime (2006); Crime and Disorder Act 1998), and actual interventions (e.g. Victim Support’s witness services or reparation programs (Liebman, 2007: 38)). A ‘victim-centered criminal justice’ here does not entail investing on reparation but strengthening victim participation in criminal proceedings (which resonates with RJ claims of empowering victims though) and enhancing responsibility on local authorities to adopt a multi-agency line of action when working with victims of crime. Eclipsing communities and third way solutions The discourse on the “eclipsing” of moral communities (Etzioni, 1993; Giddens, 1998), as effect of the combined action of conservative individualism and post-war social democracy (Drivel and Martell, 1997: 27), penetrates into the UK politics of law and order in the 1990s, contributing toward New Labour’s communitarian social, criminal and penal policies. Community here is fundamentally a “lack” (of order, morality, responsibility, localism) generated by political liberalism through promotion of individualistic tendencies as well as by the left by depriving local communities of power, whilst strengthening state organisations (Home Office, 2001a, 2010). The emphasis on parental responsibility and anti-social behaviour (Muncie 1999: 156), for instance, appears linked to the broader issue of the weakening of micro-community ties and their moral foundations, raised by moral communitarianists. More generally, this understanding opens the way for the investment (symbolic and material) in the community/neighbourhood as a site of the fight against both crimes and actions which embody lack of respect/responsibility (ACPO, 2011: 5). This investment is also bolstered by two different criminological stances, which emerge between 1980s and 1990s. The first is the notorious ‘broken window’ speculation which had a documented impact on British policy (Home Office, 2003b; Labour Party, 1995), in terms of justifying (muscular) early-intervention programs (exemplified by anti-social behaviour orders). A further (more inclusive) support is offered by the ​“third way” criminologies (Hughes, 2007: 23; O’Malley, 1996) based on the idea of crime as a “real” effect of the progressive erosion of micro-moral ties localised in discrete communities (Braithwaite, 1989, 2002; Duff, 2000; Lea and Young, 1984). The focus is posited on the promotion of partnerships between the public, private and voluntary sectors to identify and implement community-based crime prevention measures (Hoyle and Noguera, 2008; Hughes, 2007: 73). This narrative encourages people, communities and organisations to partake in crime prevention activities, as well as to reduce certain types of crime and the fear of crime (Morgan report, 1991). In the same vein, are advanced ideas of citizens as ‘partners against crime’ and of state agencies’ devolving ‘power’ and sharing the work ‘of social [and crime] 6 control with local organizations and communities’ (Garland, 2001: 205) which will be vital symbolic resources for the development of the representation of the community as a crime stakeholder in RJ (ANONYMISED). Lack of efficiency and the managerial State The rise of widespread managerial concerns in the delivery of public services, including criminal justice, is a problematic with deep historical roots, mainly linked to the neoliberal and neoconservative portrayals of post-war welfare regimes’ crisis. This is framed in the 1980s as both economic, financial and ideological crisis, whose main effects are the hypertrophic bureaucracy and the de-responsibilisation of individuals and communities, resulting, ​inter alia, in idleness, crime and disorder (Newman and Clarke, 1997: 14). The ‘more and better management’ formula is presented as one of the solutions to the problems of the welfare state in Britain (Newman and Clarke, 1997), inspiring the creation of new forms of political regulation. Especially the idea of ‘reinventing government’ (Osborne and Gaebler, 1992 in Newman and Clarke, 1997: 37), i.e. the importing in the public sector of private companies’ categories of thought, is deemed as strategic to respond to the problematic at stake, including the rise of crime and disorder. In this area, the criminal justice system’s lack of performance is described as one of the main causes of crime (Home Office, 2001b). The “crisis” of traditional penal institutions is framed in terms of failing to reach relevant targets, absence of professionalism and cost-effectiveness, or more in general lack of an economic-minded steer (Cavadino and Dignan, 2013: 21). The political rejoinder to this, is to empower the private sector to pursue innovation by prompting new ways of regulating offenders’ behaviours. This is the case of high-tech controls (Nellis, 2009: 101), and more broadly, of strategies toward the privatisation and modernisation of criminal justice (Auld report, 2011; Glidewell report, 1998). The growth of measures relying on an assumed ‘contractual capacity’ of the offender/deviant, including youth offenders (Crawford, 2009: 181), based on a moral ground but expressed in language drawn from the private enterprising vocabulary, is a further example of this cultural climate. RJ, especially as a policing option, is promoted as a “less paperwork” intervention and as such an appealing “street justice” instrument (ACPO, 2011; Home Office, 2009; Restorative Justice Council, 2014: 10). RJ also resonates with the ideas of satisfying the consumers (of justice) and of community-based governance which complement the ‘more and better management’ strategy (Osborne and Gaebler, 1992 in O’Malley, 2009: 10). The problematics sketched out above, intersect and conflict at multiple levels. Managerial issues such as slow prosecution and lack of coordination are considered key weaknesses of the youth justice system, to be tackled with by speeding up the process, as well as by (third way) multi-agency strategies (Audit Commission, 1996). Multi-agency responses are also integral to a victim-centered criminal justice, as seen above. Reparation programs and payback to victims are often justified in terms of ‘value for money’ and ‘payment by result’ (Ministry of Justice, 2010: 41-42). However, contractual responses to everyday youth offenders may be perceived as a disappointing “soft option” by victims’ movements (Davis, 1992: 33) and managerial constraints may have de-responsibilising effects and contribute towards the eclipse of moral communities. These intricate relations generate an assemblage of predicaments/responses which represents a condition of possibility for the development of RJ. The transformation of disparate reparative practices, at the margins of the British criminal justice, into RJ (i.e. an ensemble of discourses underpinning laws, services, policy bodies, funds, scholarly works), becomes possible firstly due to an epistemological shift. When those practices can be configured, at the 7 same time, as an instrument to responsibilise everyday youth offenders, a response to politicised victims’ needs, a “third way” strategy of revitalising dying communities as well as a less costly justice option, then, RJ becomes possible. Yet, the tensions between and within problematics migrate into RJ whereby themes such as empowering and shaming, rethinking of crime and acceptance of criminalisation, satisfying victims and safeguarding offenders, uneasily cohabitate. The further shift from possible to “real” (but ambivalent) response to crime, is related to the inscription of RJ into the social body through governmental technologies. 3.2 Political technologies Securitisation This technology consists of the range of strategies, techniques and procedures which have enacted, over the last 30 years, in the UK and the western world broadly, the securitisation of personal safety (Schuilenburg, 2012: 75) and the distribution of responsibility for its delivery (Garland, 2001: 125). Such devices respond to the “need” of controlling everyday offenders, empowering communities and victims, relying less on state interventions and more on the same users’ participation. The moral communitarianism, the political re-invention of the victim as well as the new managerialism, have played the role (along with other factors) of the cultural justification of the material production of this form of security – forward-looking, plural, responsibilising. Community safety measures can be considered an instance of this technology, insofar as they aim to prevent assumed future (anti-social) behaviour (Crawford, 2003: 490). More broadly, the widespread trend (invoked by the Morgan report in 1991), of distribution responsibility across an array of actors in delivering this negative/private security is an example of the technology at stake (Bayley and Shearing, 1996: 588; Crawford, 2003: 481). While the state remains a relevant subject in the provision of negative security (especially for persistent or “alien” offenders), it is not the only player, and under certain circumstances, it may not even be the most important one. This means that community-based actors complement state agencies in providing security. Individuals and groups are invited to take responsibility for their own security; they are encouraged to distribute among themselves the concern to create ‘livable’ spaces by reducing crime opportunities (Garland, 2001: 125). The creation of youth offender panels or measures such as youth offender contracts and parental orders, that is, the legal supports of RJ programmes in England and Wales, are further examples of this technology. In RJ, in fact, individuals and communities are at the same time providers and users of security services (Pavlich, 2005: 81). From this perspective, RJ makes sense as a de-centralised strategy of providing negative security, by relying on (and indirectly promoting) the users’ capability to take care of themselves. In RJ, the overarching claim is to invest on interventions on crimes which emphasise the direct involvement (i.e. responsibilisation) of a plurality of stakeholders (‘victims’, ‘offenders’ and ‘communities’). The state, here, plays a “low profile”, but still relevant, role. This is evident in England and Wales, whereby RJ practices are often state-sponsored, led by state representatives (police officers, probation officers etc.) and re-enact the state-based criminal justice language and mindset (dichotomy victim/offender, offender’s admission of guilt as a condition to enter RJ programs etc.) (Davis, 1992: 25). Hybridisation The second technology includes devices which perform a “hybrid” (i.e. beyond the public/private divide) way of control over a wide set of social issues, including crime and deviance (Rose, 2001a). This technology appears intertwined with the knowledge produced and promoted by the “third way” 8 sciences and consistent with the community-based ‘more and better management’, with their drive toward the identification of new spaces/ways (e.g. the community) for ​doing social control. This can be seen, for instance, in respect of policing policy (‘community policing’), penal policy (‘punishment in the community’), justice policy (‘community mediation’) (Crawford, 1999), and also of RJ, whereby the role of efficient and pro-social communities is strongly emphasised (ANONYMISED). The community is posited as ‘the ideal territory for the administration of individual and collective existence, the plane or surface upon which micro-moral relations among persons are conceptualized and administered’ (Rose, 1996a: 331). The concept of ‘community’ here represents a singular hybrid between the notion of ‘civil society’ offered by the ‘left’ – as the alternative to centralised statism and to the free market doctrine (Rose, 1999a: 168) – the moral communitarian insistence on traditional values and the idea championed by contemporary civic republicanism of community as a means by which to arrest liberal individualism (Rose, 1999a: 170). The development of hybrid technologies of government can be thought of as a supposed alternative to both free market individualism and state-centred collectivism, not only within social and economic policy, but also in criminal and penal policy. This appears to be the case of RJ: a third way of penal control, rooted in a perfected moral community, whose epistemic basis lies beyond the criminologies of ‘the self’ and of ‘the other’, and whose instruments are apparently alternative to both expressive punishments and welfarist interventions (Garland, 2001: 15). RJ is ​par excellence about imaging participatory decision-making processes to deal with crimes, by empowering ‘victims’ and ‘offenders’ within and through their ‘communities’ to address the harm experienced. De-politicisation Here the focus is on methods and processes which aim to neutralise the moral, political, social, and economic character of public issues (Rose, 1998: 165), in two different (and to some extent opposite) ways. Firstly through programs, practices and policies which “managerialise” the production of order. The political, ethical and social character of decision-making is neutralised and superseded by the regulating principles of effectiveness, efficiency and economy. The production of order relies on a “neutral” expertise which generates evidence-based support, distancing decision-makers from the moral and political substance of their decisions (Burnham, 2001: 127), reshaping popular perceptions of who is to blame for policy failures and reducing the operational liability of public institutions (Diamond, 2013: 7). The growth of policies and practices of risk-assessment, accountability, transparency and external validation in the criminal justice sector exemplify these technologies. Such mentality is characteristic of the New Labour’s style of government: on one hand devolution to private actors on the other strategic ‘strengthening of the core executive [...] over policy-making and implementation process’ (Diamond, 2013: 2). This is clearly expressed by New Labour criminal and penal policy whereby multi-agency partnerships are paralleled by authoritarian instruments, like in the Crime and Disorder Act 1998, and where managerial concerns are a non-negotiable guiding principle of reform. Furthermore, the development of problem-solving, fast-track and low-cost justice approaches, like RJ (ACPO, 2011: 5; Marshall, 1999: 5), resonates with managerial devices of control. Whilst the first range of techniques ends up limiting people’s individual responsibility by de-activating the political/social content of a variety of problematics, the second set of devices of de-politicisation works by installing a concept of the human subject as an ‘autonomous, individualized, self-directing, decision-making agent’ (Rose, 1999b: 499). Here the goal is to offer individuals and groups new opportunities to participate actively in various arenas of action ‘to resolve the kind of issues hitherto held to be the responsibility of authorized governmental agencies’ (Burchell, 1996: 29). Operationally, 9 this is possible in different ways, for instance through the popularisation of what Rose calls ‘psy-complex’ (1985). This expression refers to an array of techniques for the incorporation of psychological ideas about human resources and group dynamics into an increasing number of social domains, as well as to the nature and implications of the proliferation of psychotherapies (Rose, 1990). From a criminal and penal control viewpoint, these second set of devices emphasises individual agency, at the expenses of socio-structural factors, as far as the “causes” of crimes and the ways to address them and their consequences are concerned. RJ embodies this perspective, whereby crime is fundamentally a matter of interpersonal conflict to be dealt with by the same conflicting parties; the role of social determinants or macro-relations of power, is neglected if not denied. RJ reaches the threshold of a ‘practicable’ penal discourse (Gordon, 1991: 3) when its language, moral justifications and epistemic forms become integral to political strategies of securitisation, hybridisation and depoliticisation. This is possible insofar as, during the second half on the 1990s, RJ interventions are incorporated into apparatuses of negative security for responsible users/providers, located within ‘ideal’ communities. Additionally, the inscription of RJ into the social body requires the de-politicisation of both RJ’s matter (from public offences to interpersonal conflicts) and goals (from punishment to personal healing/empowerment). This is not a smooth process, since the technologies’ aims are not easily compatible. There are tensions between individual responsibilisation and community involvement, as much as between managerial order and healing/empowerment or between distribution of responsibility and the Leviathan’s “informal” support. This affects RJ’s structure, stretched across multiple and ambivalent aspirations (e.g. satisfying victims’ need of negative security and healing, enabling offenders’ empowerment and reducing re-offending, investing in individual agency through communities). The analysis of the competing political rationalities which drive problematics and technologies can further clarify reasons and consequences of this genetic ambivalence. 3.3 Political Rationalities Political rationalities are the discursive patterns of ends, means, justifications and limitations formulated by multiple actors and driving the process of government (Rose and Miller, 1992: 175). Neoliberal and neoconservative rationalities, strategically opposed to the ​welfarist mentality, seem to inform the problematics and technologies charted above​. ​This combination manifests itself in different ways, depending on several contextual factors. Here it is heuristically useful the ‘inclusive’ side of this political assemblage (O’Malley, 2009: 9), conceptualised, following Rose (1996b, 2001b), as ‘ethopolitics’, though a further refinement of this interpretive scheme is necessary (Garland, 1997; O’Malley, 1999). Whilst in fact Rose considers ethopolitics as a specific advanced-liberal political rationality, in this paper this concept is used to encapsulate only one possible way of expressing the fluid relations between the political mentalities mentioned above as well as their inconsistent synthesis and effects. From a governmentality perspective, neoliberalism is a self-limiting political mentality, based on the superimposition of the market rationality on the entire reality (Foucault, 2008). The ‘market’, as smooth space of contractual relations and ‘site of veridiction’ of policies and practices (Foucault, 2008: 32), is a distinctive product of neoliberalism. The marketisation of public agencies, including the 10 managerialisation of criminal justice services, is driven by this mentality of government. The development of a ‘contractual’ culture, the rise of victims-as-consumers, the abdication of thinking in terms of ‘social causes’ of crime, the focus on responsibilisation instantiated by technologies of plural security and hybrid governance, are all expressions of the neoliberal way of thinking. In the relevant context, this rationality enters in a mobile alliance (O’Malley, 1999: 185) with the neoconservative mentality, i.e. with a ‘social authoritarian’ mode of governing built around problematics such as the weakening of the nation, the breakdown of the nuclear family and the lack of moral community. Discipline, cultivation of the virtues of law and order and respect for the traditions are the responses to these issues. Here the object of government is a range “natural” communities, united by moral and traditional ties, coalescing around exclusive identities. The (partly) converging elements of this alliance are the ideas of a sovereign state as law and order enforcer and the centrality of the market (O’Malley, 1999: 187), whilst the tensions lie around concepts of social contract, self-interest and morality (O’Malley, 1999: 186). ​This inconsistent combination, is glued by a strategic “foreclosure” of the welfarist mode of social government, portrayed as spreading culture of dependency, individual de-responsibilisation, lack of morality and uncontrolled growth of bureaucracy. Around these issues the alliance at stake emerges as a strategic response. The welfarist rationale is “included by exclusion” in this alliance, since it connects neoliberal and neoconservative mentalities as a constant danger to be continuously evoked and exorcised. The rather contradictory pathway to freedom/morality is the alternative to the ‘road to serfdom’. The welfarist mentality, clearly is not only an imaginary common enemy. This is actually present, as political rationale, in multiple penal discourses, including some of those relevant for the historical emergence of RJ. This is the case of the idea of RJ initially elaborated within the probation context as a rehabilitative technique (Davis, 1992: 22), as well as by third sector organisations (e.g. NACRO), even though their proposals came to be articulated in “serendipitous” ways by political parties (e.g. New Labour). This combination of political rationalities configures a compounded style of government not reducible to a particular political philosophy or economy, but, as argued above, rather characterised by its type of problematics and technologies, that is, ‘ethopolitics’. The main feature of ethopolitics is to shift government from questions of rational administration of population to those of individual everyday morality and ethics, from taking care of collectivity to the controlled empowerment of individual responsibilities of self-government, in order to make people governable ‘at a distance’ (Miller and Rose, 1990: 9). The securitisation and the de-politicisation of social matters, connected to the spreading of hybrid arenas of governance, result in a sustained investment on individual agency, at the expenses of structural constraints which are “replaced” by morally cohesive communitarian ties (Pathak, 2014: 1–2). The neoliberal ​choice (emphasised in RJ practices) becomes a crucial site of political intervention: individuals must become free, must enjoy a specific form of freedom linked to a particular idea of responsibility, rooted in a moral (neoconservative) community (that is, the “setting” of RJ interventions). The combination between freedom to choose and morally cohesive communities elicits a reciprocal alteration, resulting in the superimposition of a “centripetal” freedom, since ‘the choice’ is filtered and enabled by the community’s moral fabric. The proliferation of themes such as local autonomy, victims’ participation, community empowerment, as well as reparation, seems informed by the ethopolitical tension toward the re-definition of people’s relation with themselves, in terms of open-ended futures, transforming the individual ethos (constituted by shared sentiments, beliefs, values) in a crucial political matter. In RJ, the encounter, reparation of harm and personal transformation are all moral choices which aim to mend a wounded relation of trust and 11 interdependency. This choice is mediated by discrete communities (Rose, 2001a: 4) which make possible to match the emphasis on the individual responsibility with shared norms of civility. 3.3 Subjectivation A distinctive type of subjectivation of individuals is integral to the deployment of ethopolitical responses to problematics of government. On one hand, ‘intensely subjective’ beings (i.e. responsible for their destiny) (Rose, 1990: 3) are shaped by processes of de-socialisation of security and of hybridisation of governance. On the other, these subjectivities are constrained by managerial limitations as well as by the tight moral ties of cohesive communities. RJ embodies such a janus-faced subjectivation process, insofar as participants to restorative programs are hailed by a plurality of inconsistent discourses. RJ, in fact, emphasises at the same time, both the critical role of communal networks in supporting ‘victims’ and ‘offenders’ and the agentic responsibility of individual actors. ‘Victims’ and ‘offenders’ are deemed to have the necessary psychological, moral and practical resources to engage in ‘restoration’, which is the outcome of their deliberate decisions. They are the only ones who can repair, compensate or apologise for what happened. The impact on crimes of any form of socio-structural factor is not taken into account, relying on individual agency as a necessary and sufficient site for the regulation of crimes. RJ actors appear as ‘responsible subject[s] of moral community guided – or misguided – by ethical self-steering mechanisms’ (Rose, 2000: 321). Yet, RJ is not a (pure neoliberal) form of privatisation of conflict. The ‘restoration’ can happen only against the backdrop of a community-as-moral-stabiliser and under the auspices of a managerial state, which regulates the effects of restorative encounters on “conventional” criminal justice. Such an ambivalent subjectivation process is related to the constitutive tensions and contradictions which characterise ethopolitics. Neoliberal, neoconservative and welfarist rationalities are overlapping yet opposing in many respects and at multiple levels. If, in fact, mobile alliances make possible the actual government, they also carry a load of discordant representations, claims and responses. This generates tensions and contradictions at level of both political programs and technologies, which translate into penal options, ‘volatile and contradictory’ in turn (O’Malley, 1999). However, the incoherent nature of ethopolitics is also the very condition for the development of resistance to it. It is in the “cracks”, “gaps” and “holes” engendered by those tensions that spaces of contestations (and active subjectivation) will likely arise as possibilities to be seized upon by individuals and groups (Rose and Miller, 1992: 190). 5. Conclusions This paper aims to insert the development of RJ into a specific socio-political milieu, and to bring to the fore some historical contingencies which RJ is tied to. The transformation of sparse reparative practices, with limited social, political and cultural traction, in a practicable penal policy option, is possible due to the development of competing political problematics and technologies informed by a strategic convergence of rationalities, that is, ethopolitics. This is not an orderly combination of political mentalities, being actually replete with constitutive tensions, expressed by contradictions at level of political programs and technologies, which produce, ​inter alia​, conflicting penal policies. It is not only the emergence but also the inner structure of RJ which suffers of the same fragmentation which characterises the political milieu within which it arises. RJ imports into the penal policy arena an ambivalent vocabulary which emphasises individual responsibility in and through cohesive 12 communities, empowering through shaming, rethinking of crime but not of criminalisation, critique of punishment but not of the “penal”, priority of victims’ needs but also of offenders’ rights. A question which could be raised now, is whether the political conditions for the emergence of RJ are also its destiny​: is it possible to envisage a RJ which runs counter to ethopolitical imperatives, whereby the ‘subject gives itself the right to question truth concerning its power effects and to question power about its discourse of truth’ (Foucault, 1996: 386)? The constitutive incoherence of political mentalities (and of derivative penal policies) is the theoretical condition for contestation to arise. Furthermore, spaces of resistance likely occur when technologies are crystallised in practices and institutions (that is, at level of the ‘real governmental practice’ (Foucault, 2008: 2)), due to e.g. professional rivalries, lack of technical conditions, communication short-circuits and so on. A theoretical and empirical investigation of these spaces, is a desirable challenge ahead for a critical RJ scholarship as well as for a RJ movement which aims to be not only successful (by gaining more funds, services and regulations) but also self-critical​ ​(by becoming more aware of its history, limitations and risks). References Association of Chief Police Officers (ACPO) (2011) ​Restorative Justice guidance and minimum standards. Available at: https://www.restorativejustice.org.uk/sites/default/files/resources/files/ACPO%20restorative%20justice %20guidance%20and%20minimum%20standards.pdf​ (accessed 01.05.2017) Audit Commission (1996) ​Misspent Youth. Young People and Crime​. London: Audit Commission. Auld R (2001) ​Review of the criminal courts of England and Wales: report ​(the Auld report). London: Home Office. Bayley D and Shearing C (1996) The Future of Policing.​ Law and Society Review​ 30(3): 585–606. Braithwaite J (1989) ​Crime, Shame and Reintegration​. Cambridge: University of Cambridge Press. Braithwaite J (1999) Restorative Justice: Assessing Optimistic and Pessimistic Accounts. ​Crime and Justice: a Review of Research​ 25(6): 1–127. Braithwaite J (2002) ​Restorative justice and responsive regulation​. New York: Oxford University Press. Burchell G (1996) Liberal government and techniques of the self. In: Barry A, Osborne T and Rose N (eds) ​Foucault and political reason​. London: UCL Press, pp. 19–36. Burnham P (2001) New labour and the politics of depoliticisation. ​British Journal of Politics and International Relations​ 3(2): 127–149. Cavadino M and Dignan J (2013) ​The penal system: An introduction​. London: SAGE. Christie N (1977) Conflicts as property. ​British Journal of Criminology​ 17(1): 1–15. Crawford A (1999) Questioning Appeals to Community within Crime Prevention and Control. European Journal on Criminal Policy and Research​ 7(4): 509–530. Crawford A (2003) Contractual governance of deviant behaviour. ​Journal of Law and Society 30(4): 479–505. Crawford A (2009) Restorative Justice and Anti-Social Behavior Interventions as Contractual Governance: Constructing the Citizen-Consumer. In: Knepper P, Doak J and Shapland J (eds) ​Urban Crime Prevention, Surveillance and Restorative Justice: Effects of Social Technologies​. Boca Raton: CRC Press, pp. 167–194. 13 https://www.restorativejustice.org.uk/sites/default/files/resources/files/ACPO%20restorative%20justice%20guidance%20and%20minimum%20standards.pdf https://www.restorativejustice.org.uk/sites/default/files/resources/files/ACPO%20restorative%20justice%20guidance%20and%20minimum%20standards.pdf Davis G (1992) ​Making Amends: Mediation and Reparation in Criminal Justice​. London and New York: Routledge. Diamond P (2013) ​New Labour and the politics of depoliticisation: the delivery agenda in Britain’s public services 1997-2007​. Available at: http://www.bristol.ac.uk/media-library/sites/sps/migrated/documents/patrickdiamond.pdf (accessed 15.05.2017) Dignan J (2005) ​Understanding Victims and Restorative Justice​. Maidenhead: Open University Press. Driver S and Martell L (1997) New Labour’s Communitarianisms. ​Critical Social Policy 17(52): 27–46. Duff RA (2000) ​Punishment, Communication and Community​. New York: Oxford University Press. Etzioni A (1993) ​The Spirit of Community​. New York: Crown Books. Foucault M (1977) ​Discipline and Punish: The Birth of the Prison. ​New York: Random House Foucault M (1982) The Subject and Power. In: Dreyfus H and Rabinow P (eds) ​Michel Foucault: Beyond Structuralism and Hermeneutics,​ 2nd ed. Chicago: University of Chicago Press, pp. 208–226. Foucault M (1991) Governmentality. In: Burchell G, Gordon C and Miller P (eds) ​The Foucault Effect: Studies in Governmentality​. Chicago: University of Chicago Press, pp. 87–104. Foucault M (1996) What is Critique? In: Schmidt J (ed) ​What Is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions​. Berkeley: University of California Press, pp. 382–398. Foucault M (2008) ​The Birth of Biopolitics. Lectures at the Collège de France, 1978–1979​. Basingstoke: Palgrave Macmillan. Green S (2014) ​Crime, community and morality.​ Abington: Routledge. Garland D (1997) ‘Governmentality’ and the Problem of Crime: Foucault, Criminology, Sociology. Theoretical Criminology​ 1(2):173–214. Garland D (2001) ​The Culture of Control: Crime and Social Order in Contemporary Society​. Oxford: Oxford University Press. Giddens A (1998) ​The ​Third Way: The Renewal of Social Democracy​. Cambridge: Cambridge University Press. Gordon C (1991) Governmental rationality. In: Burchell G, Gordon C and Miller P (eds) ​The Foucault Effect: Studies in Governmentality​. Chicago: University of Chicago Press, pp. 1–48. Glidewell I (1998) ​Review of the Crown Prosecution Service (the Glidewell report). London: Home Office. Harding J (1982) ​Victims and Offenders​. London: Bedford Square Press. Home Office (1996) ​Victim’s Charter. Standards of Service for Victims of Crime ​(first published in 1990). London: Home Office. Home Office (1997) ​No more excuses: a new approach to tackling youth crime in England and Wales​. London: Home Office. Home Office (2001a) ​Building Cohesive Communities: A Report of the Ministerial Group on Public Order and Community Cohesion​. London: Home Office. Home Office (2001b) ​Criminal Justice: The Way Ahead​. London: Home Office. Home Office (2002) ​Justice for All White Paper​. London: Home Office. Home Office (2003a) ​Restorative justice: The government’s strategy. A consultation document on the government’s strategy on restorative justice​. London: Home Office. Home Office (2003b) ​Respect and Responsibility - Taking a Stand Against Anti-social Behaviour. London: Home Office. Home Office (2005) ​Rebuilding lives: supporting victims of crime. ​London: Home Office. 14 http://www.bristol.ac.uk/media-library/sites/sps/migrated/documents/patrickdiamond.pdf Home Office (2006) C​ode of Practice for Victims of Crime ​(Victims’ Code). London: Home Office Home Office (2009) ​Reducing Bureaucracy in Policing​. London: Home Office. Home Office (2010) ​Safe and Confident Neighbourhoods Strategy: Next Steps in Neighbourhood Policing​. London: Home Office. Hoyle C and Cunneen C (2010) ​Debating restorative justice​. Oxford: Hart. Hoyle C and Noguera S (2008) Supporting young offenders through restorative justice: Parents as (In)appropriate adults. ​British Journal of Community Justice​ 6(3): 67–85. Hughes G (2007) ​The politics of crime and community​. Basingstoke: Palgrave Macmillan. Jewkes Y (2004) ​Media and Crime​. London: SAGE. Johnstone G (2011) ​Restorative Justice: Ideas, Values, Debates. ​London and New York: Routledge. Johnstone G and Van Ness D (2007) The meaning of restorative justice. In: Johnstone G and Van Ness D (eds) ​Handbook of Restorative Justice​. London: Willan, pp. 5–23. Kearon T and Godfrey BS (2007) Setting the scene: a question of history. In: Walklate S (ed) Handbook of Victims and Victimology. ​London: Routledge, pp. 11–36. Labour Party (1995) ​A quiet life: tough action on criminal neighbours​. London: Labour Party. Lea J and Young J (1984) ​What Is To Be Done About Law and Order – Crisis in the Eighties​. Harmondsworth: Penguin. Liebmann M (2007) ​Restorative justice: How it works​. London: Jessica Kingsley Publishers. Lippens R (2015) Ambivalent Sovereigns and Restorative Justice: Exploring Conditions of Possibility and Impossibility for Restorative Justice in a Post-communicative Age. ​Critical Criminology 23: 125–139. Maguire M (1985) Victims’ Needs and Victim Services: Indications from Research. ​Victimology: An International Journal ​10(1-4): 539–559. Marshall T (1996) The evolution of restorative justice in Britain. ​European Journal on Criminal Policy and Research ​4(4): 21–43. Marshall T (1999) ​Restorative Justice: An Overview​. London: Home Office. Mawby RI (1988) Victims’ needs or victims’ rights: alternative approaches to Policy-making. In: Mayhew P and Hough M (1988) British Crime Survey: Origins and Impact. In: Maguire M and Pointing J (eds) ​Victims of crime: a new deal? ​Milton Keynes: Open University Press, pp. 156–163. Miller P and Rose N (1990) Governing economic life. ​Economy and Society​, 19(1): 1–31. Ministry of Justice (2010) ​Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders​. Available at: http://webarchive.nationalarchives.gov.uk/20120119200607/http:/www.justice.gov.uk/consultations/do cs/breaking-the-cycle.pdf​ (accessed 12.05.2017) Ministry of Justice (2013) ​Restorative Justice Action Plan for the Criminal Justice System in England and Wale​s. Morgan J (1991) ​Safer Communities: The Local Delivery of Crime Prevention Through the Partnership Approach ​(the Morgan report). London: Home Office. Muncie J (1999) Institutionalized intolerance: youth justice and the 1998 Crime and Disorder Act. Critical Social Policy ​19(2): 147–175. Muncie J (2006) Governing young people: Coherence and contradiction in contemporary youth justice. Critical Social Policy ​26(4): 770–793. Nellis M (2009) Electronically monitoring offenders and penal innovation in a telematic society. In: Knepper P, Doak J and Shapland J (eds) ​Urban Crime Prevention, Surveillance and Restorative Justice: Effects of Social Technologies​. Boca Raton: CRC Press, pp. 101–122. 15 http://webarchive.nationalarchives.gov.uk/20120119200607/http:/www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf http://webarchive.nationalarchives.gov.uk/20120119200607/http:/www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf Newburn T and Crawford A (2003) Y​outh offending and restorative justice: implementing reform in youth justice​. Cullompton: Willan. Newman J and Clarke J (1997) ​The managerial state: Power, politics and ideology in the remaking of social welfare​. London: SAGE. O’Malley P (1996) Post-social criminologies: Some implications of current political trends for criminological theory and practice. ​Current Issues in Criminal Justice​ 8(1): 26–39. O’Malley P (1999) Volatile and contradictory punishment. ​Theoretical Criminology​ 3(2): 175–196. O’Malley P (2009) ​Risk and Restorative Justice: Governing Through the democratic Minimization of Harms. Available at http://www.researchgate.net/profile/Pat_Omalley/publication/228134124_Risk_and_Restorative_Justic e_Governing_Through_the_Democratic_Minimisation_of_Harms/links/00b495350d1d6a9805000000. pdf​ (accessed 02.01.2017) Pathak P (2014) Ethopolitics and the financial citizen. ​Sociological Review​ 62(1): 90–116. Pavlich G (2005) ​Governing paradoxes of restorative justice​. London: Glasshouse Press. Pitts J (2001) ​The new politics of youth crime. Discipline or solidarity?​ Basingstoke: Palgrave Reeves H (1989) The victim Support perspective. In: Wright M and Galaway B (eds) ​Mediation and Criminal Justice​. London: SAGE, pp. 44–55. Restorative Justice Consortium (2004) ​Principle of restorative processes. ​Available at: http://www.iirp.edu/pdf/beth06_davey9.pdf​ (accessed 02.05.2017) Restorative Justice Council (2011) ​Best practice guidance for restorative practice​. Available at: https://www.restorativejustice.org.uk/sites/default/files/resources/files/Best%20practice%20guidance% 20for%20restorative%20practice%202011.pdf​ (accessed 15.05.2017) Restorative Justice Council (2014) ​Restorative justice and policing Information pack. ​Available at: https://www.restorativejustice.org.uk/sites/default/files/resources/files/1z87_info_packs%20%282%29 %20police.pdf​ (accessed 11.04.2017) Restorative Justice Council (2015) ​Principles of Restorative Justice​. Available at: https://www.restorativejustice.org.uk/resources/rjc-principles-restorative-practice-results-2015-consulta tion​ (accessed 11.04.2017) Richards K (2011) Restorative Justice and ‘‘Empowerment’’: Producing and Governing Active Subjects through ‘‘Empowering’’ Practices. ​Critical Criminology​ 19(2): 91–105. Rose N (1985) ​The Psychological Complex: Psychology, Politics and Society in England, 1869-1939​. London: Routledge. Rose N (1990) ​Governing the Soul: The Shaping of the Private Self​. London: Routledge. Rose N (1996a) The death of the social? Refiguring the territory of government. ​Economy and Society 25(3): 327–356. Rose N (1996b) Governing “advanced” liberal democracies. In: Barry A, Osborne T and Rose N (eds) Foucault and political reason​. London: UCL Press, pp. 37–64. Rose N (1998) ​Inventing Our Selves: Psychology, Power, and Personhood​. Cambridge: Cambridge University Press. Rose N (1999a) ​Powers of Freedom: Reframing political thought​. Cambridge: Cambridge University Press. Rose N (1999b) Inventiveness in politics: review of Anthony Giddens, The Third Way. ​Economy and Society​ 28(3): 467–493. Rose N (2001a) Community, Citizenship, and the Third Way. In: Denise M and Minson J (eds) Citizenship and Cultural Policy​. London: SAGE, pp. 1–17. 16 https://www.restorativejustice.org.uk/resources/rjc-principles-restorative-practice-results-2015-consultation http://www.researchgate.net/profile/Pat_Omalley/publication/228134124_Risk_and_Restorative_Justice_Governing_Through_the_Democratic_Minimisation_of_Harms/links/00b495350d1d6a9805000000.pdf http://www.researchgate.net/profile/Pat_Omalley/publication/228134124_Risk_and_Restorative_Justice_Governing_Through_the_Democratic_Minimisation_of_Harms/links/00b495350d1d6a9805000000.pdf https://www.restorativejustice.org.uk/sites/default/files/resources/files/Best%20practice%20guidance%20for%20restorative%20practice%202011.pdf https://www.restorativejustice.org.uk/sites/default/files/resources/files/Best%20practice%20guidance%20for%20restorative%20practice%202011.pdf https://www.restorativejustice.org.uk/sites/default/files/resources/files/1z87_info_packs%20%282%29%20police.pdf http://www.iirp.edu/pdf/beth06_davey9.pdf https://www.restorativejustice.org.uk/sites/default/files/resources/files/1z87_info_packs%20%282%29%20police.pdf https://www.restorativejustice.org.uk/resources/rjc-principles-restorative-practice-results-2015-consultation http://www.researchgate.net/profile/Pat_Omalley/publication/228134124_Risk_and_Restorative_Justice_Governing_Through_the_Democratic_Minimisation_of_Harms/links/00b495350d1d6a9805000000.pdf Rose N (2001b) The politics of life itself. ​Theory, culture and society​ 18(6): 1–30. Rose N and Miller P (1992) Political power beyond the State: Problematics of Government. ​The British Journal of Sociology​ 43(2): 173–205. Rose N, O’Malley P and Valverde M (2006) Governmentality. ​Annual Review of Law and Social Science​ 2: 83-104 Schuilenburg M (2012) The Securitisation of Society: On the Rise of Quasi-Criminal Law and Selective Exclusion. ​Social Justice​ 38(1/2): 73–89. Shapland J et al. (1985) ​Victims and the criminal justice system​. Aldershot: Gower. Shapland J et al. (2006) ​Restorative justice in practice. The second report from the evaluation of three schemes. Available at: https://www.sheffield.ac.uk/polopoly_fs/1.783!/file/RestorativeJustice2ndReport.pdf (accessed 12.05.2017) Sullivan D and Tifft L (2001) ​Restorative justice: Healing the foundations of our everyday lives​. Monsey: Willow Tree Press. Walklate S (ed) ​Handbook of Victims and Victimology. ​London: Routledge. Wright M (1982) ​Making Good: Prisons, Punishment, and Beyond​. London: Burnett Books. Wright M (1996) ​Justice for Victims and Offenders. ​Winchester: Waterside Press. Young A (1996) ​Imagining Crime​. London: SAGE. Zehr H (1990)​ Changing Lenses: A New Focus for Crime and Justice​. Scottdale: Herald Press. Legislation Ministry of Justice, Criminal Justice Act 1982 Ministry of Justice, Criminal justice Act 1991 Ministry of Justice, Crime and Disorder Act 1998 Ministry of Justice, Youth justice and Criminal Evidence act 1999 Ministry of Justice, Criminal Justice Act 2003 Ministry of Justice, Criminal Justice and Immigration Act 2008 Ministry of Justice, Restorative Justice Action Plan 2013 17 https://www.sheffield.ac.uk/polopoly_fs/1.783!/file/RestorativeJustice2ndReport.pdf 
work_w6cl3ht33fhydalvla4e2s4tgm	----	Forthcoming in Journal of the American Philosophical Association Accepted manuscript (please cite published version), Copyright – American Philosophical Association *I thank my colleagues M.L. Arvan, Steven Geisz, and Laura Kane for their invaluable feedback and support. I am also grateful to Helen De Cruz, two reviewers, and the editors of the Journal of the American Philosophical Association. Finally, I thank Thomas Christiano and Gerald Gaus for guidance in the early stages of this project many years ago. Nonideal Justice as Nonideal Fairness Marcus Arvan University of Tampa marvan@ut.edu Abstract: This article argues that diverse theorists have reasons to theorize about fairness in nonideal conditions, including theorists who reject fairness in ideal theory. It then develops a new all-purpose model of ‘nonideal fairness.’ §1 argues that fairness is central to nonideal theory across diverse ideological and methodological frameworks. §2 then argues that ‘nonideal fairness’ is best modeled by a nonideal original position adaptable to different nonideal conditions and background normative frameworks (including anti-Rawlsian ones). §3 then argues that the parties to the model have grounds to seek a variety of remedial social, legal, cultural, and economic ‘nonideal primary goods’ for combating injustice, as well as grounds to distribute these goods in an equitable and inclusive manner. Finally, I illustrate how the model indexes the nonideal primary goods it justifies to different nonideal contexts and background normative frameworks, illustrating why diverse theorists should find the model and its output principles attractive. Key words: justice, fairness, ideal theory, nonideal theory, original position Moral, social, and political theorists have increasingly focused on the distinction between ideal and nonideal theory, for good reason. First, it is vital to determine whether we should theorize about ideals—as many allege ideal theorizing is inherently problematic (Farrelly 2007; Mills 2005; Sen 2009; Wiens 2015. Cf. Lawford-Smith 2010; Simmons 2010; Erman and Möller 2013; Volacu 2017). Second, if ideal theorizing should be done, there are questions of how to do it properly and distinguish it from nonideal theory (Rawls 1999a: 4- 5, 215-7; Stemplowska 2008; Simmons 2010; Valentini 2012; Volacu 2017). Third, there is the issue of how to extend ideal theories to nonideal conditions, both generally (Arvan 2008, 2014; Mills 2017: 201-16; Phillips 1985; Simmons 2010; Volacu 2017) and for specific issues, such as affirmative action (Taylor 2009; Matthew 2015), reparations (Carcien 2009; Espindola and Vaca 2014), and warfare (Rawls 1999b: Part II). Finally, if ideal theorizing should not be pursued, there is the question of how to theorize properly without it (Sen 2009; Wiens 2012). mailto:marvan@ut.edu 2 Although substantial progress has been made on these questions, this article argues that two issues remain underexplored: the extent to which fairness should be central to nonideal theorizing, and how to theorize about ‘nonideal fairness’ properly. This article argues that diverse theorists have reasons to theorize about nonideal fairness. It then defends a new all-purpose framework for determining what nonideal fairness requires. §1 argues that fairness is central to nonideal theory across diverse ideological and methodological frameworks. First, §1.1 argues that fairness is central to Rawlsian nonideal theory. §1.2 then argues that fairness remains central to nonideal theory for two very different ideologies: Nozickean libertarianism and Marxism. Here I show that although Nozick rejects fairness in ideal theory, he invokes it in nonideal theory—because only fairness appears capable of resolving conflicts in his theory of rectification. I then show that an analogous point extends to Marxism. Finally, §1.3 argues the point extends to the ‘nonideal-theory-only’ approaches defended by Sen and Wiens. Although §1 only addresses a handful of theoretical frameworks, I use them because they are influential, ideologically and methodologically diverse, and because they illustrate a general point: that nonideal conditions give rise to conflicting claims that fairness appears necessary to adequately resolve. Accordingly, although §1 does not establish that all theories of justice require an account of nonideal fairness, it shows that several diverse and influential frameworks do; that nonideal fairness has been undertheorized across those frameworks; and that there are general reasons to think this may be true of other (if not all1) normative frameworks. 1 As one reviewer noted, utilitarianism is a plausible counterexample: whether it supports ‘nonideal fairness’ depends on what maximizes utility. Although this is true, Rawls’ influential objection to utilitarianism—that it fails to respect the ‘separateness of persons’ (Rawls 1999a: 23, 163)—may be instructive. One possibility worth examining is whether fairness is central to nonideal theory for any normative framework that adequately respects separateness of persons. However, we must set this aside for future inquiry. 3 Next, §2 argues that a quasi-Rawlsian model of fairness applied to nonideal conditions—a generalized version of a ‘nonideal original position’ previously defended in a Rawlsian context—models a conception of nonideal fairness that diverse theorists should find attractive.2 Finally, §3 explores principles of nonideal justice that might emerge from the model— principles I suggest diverse theorists should find attractive as well. 1. Fairness as Central to Nonideal Theory Some contend that justice is fairness, understanding justice in terms of substantive principles of fairness justified by a fair procedure (Rawls 1999a: §3; Dworkin 2002). However, not everyone does. Libertarians identify an ideally just order as respecting liberty (Nozick 1974: chs. 2-8, esp. 90-95), and classical utilitarians contend justice involves maximizing the good (Mill 1861: ch. V)—even though both arguably justify unfair treatment (Rawls 1999a: §5; Nozick 1974: chs. 7-8). Thus, justice and fairness may or may not be identical. Nevertheless, questions of procedural and substantive fairness loom large in nonideal contexts. For example, is affirmative action just? Proponents argue justice requires or permits it for ensuring fair outcomes (Appiah 2011; Beauchamp 1998; Burns and Schapper 2008) or fair selection-procedures (Harris and Narayan 1994). However, opponents allege it is an unfair procedure of reverse discrimination (Pojman 1998; Taylor 2009; Mulligan 2017). Is universal health care just? Proponents often argue fairness requires 2 Readers may note similarities to Mills’ (2017: Epilogue, esp. 213) suggestion that liberalism should utilize a modified Rawlsian model to address racial injustice. However, there are important differences between our projects. First, my project is broader, arguing that a modified Rawlsian model should be utilized by more diverse theorists, including libertarians, Marxists, and those who disagree with Mills’ (1997, 2005) critiques of ideal theory. Second, the modified Rawlsian apparatus defended here is a generalized form of the model previously defended in Arvan (2008, 2014), where I argue it has different implications for racial justice than Mills (2017: 214-5) suggests. 4 it (Daniels 1995; Dworkin 1993), others disagree (Jacobs 1996). What about reparations for historical injustice? Proponents often argue fairness substantively requires reparations (Carcien 2010; Espindola and Vaca 2014; Coates 2014). However, opponents allege reparations are an unfair procedure harming the innocent (Horowitz 2001). And world poverty? Some argue fairness requires a lot from people to alleviate it (Singer 1972); others are less certain (Arvan 2016: 194-6; Wenar 2003). I will not argue here that fairness is the only normative issue in nonideal theory (Cf. Arvan 2016). The relevant point is that fairness is normatively central to debates about justice in a nonideal world. We will now see there are good reasons why. 1.1 Fairness in Rawlsian Nonideal Theory Given that Rawls holds that justice is fairness, fairness is surely central to Rawlsian nonideal theory. What is less well-understood is what Rawlsians should take ‘nonideal fairness’ to be. Some contend that Rawls’ principles of ideal justice should be extended to nonideal conditions ‘in spirit’ (Korsgaard 1996: 147–51; Taylor 2009). Further, some who presuppose this approach suggest that nonideal theory cannot save Rawls’ ideal theory from common critiques (Kang 2016). These views, however, are mistaken. As Simmons (2010: §3) and I (Arvan 2014: 97-101) argue, Rawls’ ideal theory cannot be extended to nonideal conditions straightforwardly—but when it is extended properly it can address issues not addressed adequately in ideal theory, including (contra Kang) affording extra concern for the interests of marginalized groups (Arvan 2014: 114-5). Allow me to explain. In Arvan (2014), I argued that because Rawls assumes ‘strict-compliance’ in ideal theory, Rawlsian ideal theory generates no account of what fairness requires under nonideal conditions. Rawls recognized this lacuna, writing: 5 It will be recalled that strict compliance is one of the stipulations to the original position…Because the parties are choosing a conception of justice suitable for favorable conditions…the principles [of justice] define then a perfectly just scheme…But even granting the soundness of these principles for this purpose, we must still ask how well they apply to institutions under less than favorable conditions, and whether they provide any guidance for instances of injustice. The principles and their lexical order were not acknowledged with these situations in mind and so it is possible that they no longer hold (Rawls 1999a: 215-6; emphasis added). Specifically, in his theory of domestic justice, Rawls has the parties to the original position assume theirs is ‘a society in which (1) everyone accepts and knows that others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are known to satisfy these principles’ (Ibid: 4). Simmons (2010: 17) shows this assumption entails two possible types of domestic non-compliance: non-compliance by individuals and by institutions. To see how Rawlsian ideal theory thus fails to provide an analysis of nonideal fairness, consider one case of institutional non-compliance: the present-day USA. The US fails to strictly-comply with Rawls’ first principle of ideal justice. For although the US Constitution nominally ascribes equal basic rights and liberties to all citizens—in conformity with Rawls’ first principle—the US fails to satisfy that principle’s requirement that everyone enjoy the ‘fair value’ of those rights and liberties (Rawls 1993: 358; Rawls 2001: 149. See also Krishnamurthy 2012, 2013). Some ways the US plausibly fails to do so include voter suppression (Bentele and O’Brien 2013) and evisceration of the Fourth Amendment for minority populations (Alexander 2012: ch. 2). The US also fails to satisfy Rawls’ fair- equality-of-opportunity principle, which plausibly prohibits (Rawls 1999b: 63, 245) the US’s 6 vast disparities by race and ethnicity in education (Mickelson 2003), health-care (Williams and Jackson 2005), incarceration (Pettit and Western 2004), and so on. Finally, the US fails to satisfy Rawls’ (1999a: 65-8) difference principle, which prohibits economic inequalities not to the advantage of all, particularly the least well-off—as economic inequality in the US primarily benefits the top 1% (Piketty and Saez 2006). None of this is surprising. If Rawls’ ideal theory of domestic justice is correct, the United States must change substantially to become fully just. But at what cost, and to whom? Consider one attempt to arguably move closer to Rawls’ ideal of fair equality of opportunity: the Affordable Care Act of 2010, the nominal aim of which is to ensure all Americans have access to affordable health care. Suppose the ACA brought the US closer to Rawlsian ideals. Regardless, transition to the ACA imposed costs on people that would never arise in an ideal Rawlsian society. Among other things, businesses and insurance companies had to take on costs of unhealthy individuals who might have been healthier if the US had a just health care system from the outset (see Kocher and Adashi 2011). The point here is simple: nonideal conditions generate ‘nonideal costs’ that would never arise under ideal conditions—costs of injustice and costs of reform. This is critical. Because of Rawls’ strict-compliance assumption, the parties to his ideal original position never considered any such costs, including costs from individual non- compliance. Consequently, if justice is fairness (as Rawls contends), Rawlsians still need to provide some further account of nonideal fairness factoring in nonideal costs. Finally, because Rawls (1999b: 3) similarly predicates his Law of Peoples on strict-compliance, Rawlsians need a theory of nonideal fairness for international affairs as well (Simmons 2010: 17; Cf. Arvan 2008). 7 1.2 Fairness in Non-Rawlsian Nonideal Theory This article cannot examine every ideological perspective. Instead, let us examine two deeply opposed ideologies: Nozickean libertarianism and Marxism. As we will now see, both also generate clear reasons to theorize about nonideal fairness, in ways not yet fully recognized. Along with Rawlsianism, I use these test-cases to illustrate that across diverse and opposing ideologies, nonideal conditions give rise to conflicting claims that fairness appears necessary to adequately resolve. Let us begin with Robert Nozick’s libertarian theory. Nozick (1974: 28-34) defends negative rights to life, liberty, and property as moral ‘side-constraints’ that cannot be permissibly violated even for protecting the same rights of others. He then argues that only a ‘minimal’ libertarian state respects these constraints (Ibid: chs. 4-9). Throughout, Nozick inveighs against the idea that justice is a matter of fairness, at least in ideal theory. First, he argues against fair play—the notion (see Hart 1955; Rawls 1964) that persons benefitting from mutually advantageous cooperative ventures (such as a nation-state) owe acquiescence to the venture’s rules as a matter of fairness. Second, Nozick (1974: ch. 7) argues against a ‘fair distribution’ of wealth and income, contending that justice requires respect for individual property-rights. Finally, Nozick argues against entitlements to fair equality of opportunity, meaningful work, and non-exploitation (Ibid: ch. 8). Given Nozick’s systematic opposition to fairness in ideal theory, why should a Nozickean ascribe normative force to fairness in nonideal theory? The answer, surprisingly, is in Anarchy, State, and Utopia. First, on the few occasions that Nozick discusses nonideal theory, considerations of fairness are prominent. Consider Nozick’s answer to what justice requires in rectifying historical injustice. Nozick claims we 8 should reason counterfactually, asking which property-holdings individuals would have if injustice never occurred (Ibid: 152-3). However, Nozick then adds: [W]hatever difficulties [one] has in applying the principle of rectification to persons who did not violate the first two principles [of the entitlement theory of justice] are difficulties in balancing considerations so as to correctly formulate the complex principle itself; ... (Ibid: 173). If ‘balancing considerations’ sounds like fairness, that is because it is. Later, Nozick argues that because we cannot determinately trace out the effects of historically-distant injustices (e.g. we cannot know precisely which individual(s) would hold this land had Native Peoples never been defrauded), we must appeal to some other normative notion beyond respect for liberty. And that notion? Nozick writes: Perhaps it is best to view some patterned principles of distributive justice as rough rules of thumb meant to approximate the general results of applying the principle of rectification…For example, lacking much historical information, and assuming (1) that victims of injustice generally do worse than they otherwise would and (2) that those from the least well-off group…have the highest probability of being the (descendants of) victims…then a rough rule of thumb for rectifying injustices might seem to be the following: organize society so as to maximize the position of whatever group ends up least well-off in society….Although to introduce socialism as the punishment for our sins would be to go too far, past injustices might be so great as to make necessary in the short run a more extensive state in order to rectify them (Ibid: 230-1, emphases added). 9 In essence, Nozick holds that when we lack sufficient information to rectify past injustices counterfactually (viz. respect for individual liberty), we must appeal to fairness, instituting something like Rawls’ difference principle because it seems like the fairest thing to do. Fairness also seems implicit in Nozick’s addendum that socialism ‘would go too far.’ Why would it ‘go too far’? What answer can Nozick plausibly give here except, ‘That amount of infringement of liberty would be unfair’? Second, by investigating the normative foundations Nozick gives for libertarianism, we can see there are independent reasons to think he must invoke fairness in nonideal conditions. Nozick gives two justifications for libertarian side-constraints. First, Nozick (1974: 32) suggests that they are perhaps the best interpretation of the Kant’s (1785: 4:429) requirement to never treat humanity as a mere means (Cf. Rawls 1999a: §40). Nozick’s second justification focuses on our ability to plan our lives and pursue our ends. He contends that insofar as these things enable us to make our lives meaningful (Nozick 1974: 48-51), and we care about living meaningful lives—not merely pleasant ones (Ibid: 42-5)—we have moral grounds to treat liberty as a side-constraint. We can see how both rationales apply to Nozick’s (Ibid: 93-4) public address example against fair play. Nozick asks whether, even if you enjoyed others playing a public address system, justice permits others to coerce you to play it on ‘your’ assigned day. Nozick claims this would be unjust, as it would deprive you of your liberty (Ibid: 94-5). Regardless of whether we agree, we can see how Nozick’s two rationales for libertarian side-constraints apply: forcing you to play the address system would in his view use you as a mere means for others, making you spend one day of your life doing something you do not find meaningful. 10 However, can Nozick’s normative rationales coherently justify libertarian side- constraints in nonideal conditions? It is hard to see how. Consider slavery or historical injustices toward Native Peoples, the downstream effects of which are still pervasive.3 For Nozick, historical injustices invalidate any resulting distribution of property-holdings. For example, if someone’s ancestor was unjustly deprived of this land, then for Nozick no one other than the original holder or their descendants is morally entitled to it. Here, though, is the problem. If we do not know who would have been entitled to this land had no injustice occurred, then Nozick’s counterfactual account of rectification cannot specify who is now entitled to it. On the one hand, some people (descendants of Native Peoples, slaves, etc.) remain disadvantaged by historical injustice, compromising their ability to freely pursue their life plans in ways that (for all we know) they might be counterfactually entitled to. On the other hand, taking land or property away from you or I would interfere without our autonomy and life plans in ways we may be counterfactually entitled to. Because in cases of distant injustice we cannot know precisely who is counterfactually entitled to what, Nozick’s principle of rectification—his account of what respect for liberty requires in rectifying injustice—cannot specify what nonideal justice requires. But if liberty cannot settle this, what can? As Nozick’s own discussion reveals, only some notion of fairness—some notion of how much liberty it is fair for people to sacrifice to rectify distant injustices—appears capable of specifying which forms of rectification ‘go too far’ and which do not. Now consider Communism—the Marxist notion that an ideal, non-exploitive society would conform to the dictum ‘from each according to their ability, to each according to their 3 See my discussion earlier regarding systemic inequalities of basic liberties, opportunities, and income in the US, at least some of which surely reflect historical injustice on Nozick’s libertarian picture. 11 need’ (Marx 1891). Although Marx’s theory of history (‘dialectical materialism’) holds that Communism must be achieved through a proletarian revolution, Marxism still implies an ‘ideal theory’ of sorts. After all, Marx’s complaint against all non-Communist systems is that they are unfairly exploitive (Ibid.; Marx and Engels 1848; Cf. Elster 1978). Insofar as Marx argues that Communism is normatively superior to other social-political systems, Marxism implies that Communism is ideal. We can now see in turn why Marxists should theorize about ‘nonideal fairness.’ One reason is the astonishing unfairness and brutality of past and present ‘communist’ movements, such as mass murder and starvation in Soviet Russia following the Bolshevik Revolution (Rappaport 1999: 53), the great famine resulting from Mao’s Great Leap Forward (Song 2010), and so on. Of course, many might contend that Leninism, Stalinism, and Maoism misinterpreted or misapplied Marxism. However, this does not obviate the need for a theory of nonideal fairness for Marxists, for two reasons. First, because different interpretations of Marxism can be held and have been pursued at great human cost, a nonideal theory of fairness for those interpretations might have helped to prevent immense atrocities—by getting Leninists, Maoists, etc., to understand that their ideals do not justify any and every means for achieving them. Second, Marx’s own theory of a proletarian revolution lacks an adequate account of the costs people should face in transition to Communism. Given Marx’s normative opposition to unfair exploitation, moral consistency requires applying the same standard to transition: a Marxist conception of ‘nonideal fairness’ (which I explore in §3). Thus, across diverse frameworks—Rawlsianism, Nozickean libertarianism, and Marxism—we observe similar issues. First, because each framework’s ideals abstract away from ‘nonideal costs’, each tradition needs to provide a normatively coherent and plausible 12 account of how nonideal costs should be addressed. Second, we have seen that on all three frameworks, only fairness appears capable of fulfilling this role—because ‘nonideal costs’ give rise to conflicting claims that other notions (like liberty) appear normatively insufficient to resolve. Finally, we can see how the argument plausibly extends to other ideal theories. Insofar as ideal theories focus on ideal conditions—abstracting away from nonideal costs and conflicting claims they generate—normatively forceful questions about nonideal fairness seem likely arise relative to other ideal theories as well. 1.3 Fairness in Nonideal-Theory-Only Frameworks Similar issues arise even for ‘nonideal-theory-only’ approaches to social and political theory. For example, Amartya Sen (2009) argues for reasoning about justice using comparative judgments, normatively evaluating actions and institutions based on their effects on human capabilities. Similarly, Wiens (2012) argues for focusing on institutional failure analysis— that is, on ways institutions generate problematic social outcomes, and ways to correct such failures. However, these accounts also need some further account of nonideal fairness. To see how, suppose we judge the current US health-care system to be comparatively worse than universal health-care (qua Sen), perhaps because current institutions generate problematic outcomes (qua Wiens). Nevertheless, any transition to a system of universal health-care is going to impose costs on people, such as shifting tax burdens, putting insurance companies out of business, insurance adjusters out of jobs, etc. These costs raise questions of fairness not adequately addressed by Sen’s or Wiens’ methods. First, there are questions of fairness in weighing ‘comparatively better states of affairs’ or ‘better institutions’ against transition-costs. Second, there are questions of fairness in distribution—of how transition-costs should be distributed across individuals, groups, or 13 nations in social reform. Consequently, nonideal-theory-only theorists also need a further theory of nonideal fairness: a theory of the costs it is fair to impose upon people for bringing about a comparatively better world. 2. Nonideal Justice as Nonideal Fairness We have seen that diverse theoretical traditions need an account of nonideal fairness. Nonideal conditions give rise to ‘nonideal costs’—to conflicting claims inadequately addressed in ideal theory or by standard ‘nonideal-theory-only’ methods—that fairness appears normatively necessary to resolve. However, what would a compelling analysis of nonideal fairness look like? Such an analysis intuitively needs to do several things. First, it should hold everyone in nonideal conditions to whichever duties of justice we might conditionally establish prior to factoring ‘nonideal costs.’ Such duties may be specified in two ways. First, they might be specified by ideal theory. As we have seen, ideal theories define ideal conditions by abstracting away from nonideal costs: Rawls derives his principles of ideal justice from an assumption of strict-compliance; Nozick derives his ideal libertarian state from the assumption that libertarian side-constraints are never violated; and so on. Because ideal theories abstract away from nonideal costs, they at most establish conditional duties— duties to bring about ideal conditions (relative to whichever ideal theory is assumed) all things being equal. Alternatively, if ideal theory is rejected, conditional duties may be arrived at through ‘nonideal-theory-only’ methods—for instance, through Sen’s method of comparative evaluation or Wiens’ institutional-failure analysis. However, as we saw in §1.3, these methods also only establish conditional duties of justice. Sen’s method at most specifies which end-states would be comparatively more just (abstracting away from 14 transition-costs), and Wiens’ method only tells us which institutions are failing and which institutions might work better (not which transition-costs are fair to impose upon people). Consequently, a good model of nonideal fairness should not only include or ‘plug in’ whichever conditional duties of justice are established by other methods. It should also (i) model a fair procedure for, (ii) weighing such conditional duties against ‘nonideal costs’, and for (iii) justifying substantive conclusions about what fairness requires in nonideal conditions taking these matters into consideration. Such a model, if constructed, would appear to comprise a compelling all-purpose analysis of nonideal fairness for two reasons: 1. It could be fruitfully attached to a diverse variety of ideological or methodological frameworks, inserting whichever conditional duties one’s favored theoretical framework affirms. 2. It would constitute a fair procedure for arriving at substantive principles of nonideal fairness on two critical issues we have seen other frameworks elide: (i) fairness in weighing conditional duties of justice against nonideal costs (and, by extension, weighing nonideal costs against each other), and (ii) fairness in distributing nonideal costs in social reform. Can we construct such a model? In Arvan (2014), I argued that a variant of Rawls’ original position—a ‘nonideal original position’—does just this. Although I only developed the model in a Rawlsian context, we will now see that it can be generalized (Cf. Arvan 2008). For let us look at the model in detail. First, I proposed we imagine the parties to the nonideal original position as situated behind a ‘nonideal veil of ignorance’—a variant of Rawls’ veil of ignorance applied to 15 nonideal conditions instead of strict-compliance (Arvan 2014: 100-2). For example, in the case of Rawls’ theory of domestic justice, the relevant parties to the nonideal original position would be all citizens of a particular state (say, the US) behind a veil of ignorance applied to the conditions of noncompliance in their society (giving them general knowledge of its injustices). The nonideal veil of ignorance then withholds from the parties any self- identifying information about which citizen (present or future) they might actually be. Consequently, the nonideal original position models a fair method whereby no relevant individuals can arbitrarily privilege themselves in nonideal conditions over anyone else. Next, I proposed the parties behind the nonideal veil are to all have Rawlsian ideals as all-things-equal motivations (Ibid: 100-5). This models the fact that Rawlsian ideal theory (if correct) establishes ‘conditional’ duties of justice. Because, as we saw earlier, Rawlsian ideal theory entirely abstracts away from nonideal costs, everyone in the nonideal original position ought to regard themselves under a duty to pursue Rawlsian ideals, but also as free to weigh those ideals against nonideal costs—since again, nothing in Rawlsian ideal theory addressed such costs (Ibid: 104-5). Thus formulated, the nonideal original position superficially appears to contain a contradiction (Ibid: 102, 104). Its parties are all stipulated to have Rawlsian ideals behind the veil, while deliberating as though they could turn out to be any actual individual in nonideal conditions. Because many actual individuals are not motivated by Rawlsian ideals, this seemingly implies the parties to the model all have motive X (Rawlsian ideals) but might not have X—an apparent inconsistency. However, this contradiction is illusory. Because the parties behind the veil are stipulated to deliberate from Rawlsian ideals, the model represents the commonsense idea that justice in a nonideal world requires holding everyone to their duties to pursue a more just world even if, in actuality, 16 they are not motivated to do so (Ibid: 104). Putting these two components together—the parties’ motives and the nonideal veil of ignorance—I argued that the model represents an important step forward in Rawlsian theory. It provides Rawlsians a fair procedure for weighing nonideal costs against Rawlsian ideals, and for distributing nonideal costs fairly. Non-Rawlsians might wonder why, if they reject Rawls’ original position in ideal theory, they should accept it as a model of fairness in nonideal theory.4 The answer, I will now argue, is that the nonideal original position represents an attractive model of nonideal fairness relative to diverse ideological and methodological commitments. For notice: the normative rationales for each component of the nonideal original position are perfectly general. The nonideal original position is a compelling model of nonideal fairness not because Rawls’ theoretical apparatus implies it, but because it accomplishes several things we should want any nonideal theory of fairness to do—namely: (A) Hold people normatively to whichever conditional duties of justice they have. (B) Provide a fair procedure for weighing nonideal costs against those conditional duties and against each other. (C) Provide a fair procedure for deliberating to substantive principles of fairness for distributing nonideal costs. We can see this by returning to anti-Rawlsian frameworks. For example, what should a Nozickean be looking for in nonideal theory? As we saw in §1.2, they should look to hold everyone to a duty to support libertarian ideals and a principle of rectification, but then give some principled analysis of which nonideal costs it is fair to impose upon people for rectifying historical wrongs. Now consider Marxism. What should a Marxist want in nonideal 4 I thank Laura Kane for pressing this concern. 17 theory? As we saw in §1.2, they should want to hold everyone in nonideal conditions to a duty to support Communism, while providing some principled analysis of which nonideal costs it is fair to impose upon people in transitioning toward Communism. And what sort of model should a ‘nonideal-theory-only’ theorist (e.g. Sen, Wiens, etc.) be looking for? As we saw in §1.3, they should look to hold people to duties to support comparatively more just conditions (qua Sen) or rectify institutional failures (qua Wiens), but then provide some principled analysis of nonideal costs it is fair to impose upon people in pursuit of these duties. In each case, these are the very questions the nonideal original position provides a fair procedure for addressing. Relative to whichever conditional duties one plugs into the model, the nonideal original position models a fair procedure for deliberating to substantive principles of nonideal fairness.5 The nonideal original position is thus an all-purpose method for engaging in Volacu’s (2017) proposed process of ‘incremental derivation’ in nonideal theory. First, the model can be applied to any set of nonideal conditions—to Rawlsian Partial-Compliance Theory, Unfavorable Conditions Theory, or 'No-Circumstances-of-Justice Theory’ (see Arvan 2014: 98-9); to Simmons’ various forms of noncompliance (Simmons 2010: 17); to unjust international conditions (Cf. Arvan 2008); to historical injustices (viz. Nozickean rectification); and so on. Second, it may be applied to specific issues within nonideal theory: to affirmative action, poverty, warfare, etc. Finally, as we have seen it can be applied using 5 Although in one sense the nonideal original position ‘idealizes’—modeling everyone under nonideal conditions in a position of fairness—that does not make it an ‘ideal theory.’ Any normative theory—including theories of how we should respond to a nonideal world—will have to idealize in some way, telling us what would be fair in a given set of conditions. The salient question, Volacu (2017) points out, is not whether a model idealizes but whether its idealizations accurately represent relevant normative considerations. The point of this article is that the nonideal original position correctly represents normative considerations relevant to determining what is fair in nonideal conditions. 18 different ideals (Nozickean ideals, Marxist ideals, etc.) or nonideal-theoretic methods (Sen’s comparative-justice analysis, Wiens’ institutional failure analysis, etc.). 3. What Nonideal Fairness Might Be Which principles of nonideal fairness might emerge from the nonideal original position? The short answer is it seems likely to justify different principles for different nonideal conditions—as different conditions (e.g. injustice in modern democracies, injustices in slave states, warfare, etc.) pose different challenges and possibilities. However, there are prima facie reasons to think the principles it is likely to generate will have certain commonalities regardless of nonideal context or which conditional duties are utilized. To see how, consider how in previous work I filled in the deliberative situation of the parties in the Rawlsian case. First, I argued (Arvan 2014: 101-8) that because ideal theory establishes conditional duties, and the veil of ignorance enables the parties to weigh those duties against nonideal costs, the parties have three higher-order interests behind the nonideal veil: 1. Bringing people in nonideal conditions who oppose or are ambivalent to Rawlsian ideals to instead support and pursue those ideals—including the priority relations Rawls (1999a: 53-4) ascribes to his principles of ideal justice. 2. Enabling everyone who has Rawlsian ideals to rationally weigh those ideals against nonideal costs (and nonideal costs against each other). 3. Enabling everyone who rationally weighs Rawlsian ideals against nonideal costs to effectively advance their most favored weighting thereof. Although these higher-order interests could lead the parties to different principles of nonideal justice for different conditions (e.g. slavery, warfare, etc.), they reveal the parties 19 have similar deliberative concerns across nonideal contexts: promoting Rawlsian ideals, rationally weighing them against costs, etc. Notice, next, that these three interests are highly intuitive vis-à-vis what justice requires in a nonideal world. The first interest tells us that justice requires ‘changing the hearts and minds’ of people who lack the right ideals. Although in previous work I presupposed Rawlsian ideals, I need not have. If we were to build different ideals into the model (e.g. Nozickean ideals, Marxist ideals, etc.), the parties to it would have analogous interests relative to those other ideals: interests in changing people’s values in favor of whichever ideals (Rawlsian, Nozickean, Marxist, etc.) one takes to be correct. This implication of the model is highly intuitive: bringing people to support the right ideals has been the aim of (roughly) every reform movement in history. Now consider the second higher-order interest. It tells us that people in nonideal conditions have legitimate interests in rationally weighing ideals against nonideal costs, and nonideal costs against each other. This too is highly intuitive. Whether it be affirmative action, reparations, or warfare, one major point of debates about justice in a nonideal world is how people should weigh just end-results (e.g. reparations, fair equality of opportunity, etc.) against costs. Finally, the third interest tells us that nonideal justice involves enabling everyone who has the right ideals to have a (fair) say over the costs people should have to face for the sake of bringing about a better world. This is intuitive too, as fairness must take into account everyone’s legitimate interests, not arbitrarily privileging some people’s interests over others (though, as we will see, the parties may have fair grounds given the veil for favoring some people’s interests). Here, then, is the key point: the same rationales for analogous higher-order interests exist relative to whichever normative framework we plug into the model (Nozickean 20 libertarianism, Marxism, ‘nonideal-theory-only’ frameworks, and so on). Given that, as we have seen, we can attach any of these normative frameworks to the model—let us call whichever theory is plugged-in Theory T—the higher-order interests the parties to any nonideal original position should have are these: 1. Bringing people in nonideal conditions who oppose or are ambivalent to Theory T to support and pursue the conditional duties affirmed by it (‘T-duties’)—including any required weightings or priority-relations between T-duties.6 2. Enabling everyone motivated by T-duties to rationally weigh their T-duties against nonideal costs, and different nonideal costs against each other. 3. Enabling everyone who rationally weighs T-duties against nonideal costs to effectively advance their most favored weighting thereof. As such, the deliberative situation of the parties should be similar irrespective of which normative theoretical framework one plugs into the model, indexing the parties’ higher- order interests to that model’s normative requirements. One important issue here is how T-duties may constrain how the parties should interpret their higher-order interests. Consider luck-egalitarianism, which requires minimizing inequalities resulting from certain forms of luck, e.g. ‘brute bad luck’ (see Knight 2013). If this is luck-egalitarianism’s fundamental social-political principle, the parties to a luck-egalitarian nonideal original position should take this T-duty to be a hard constraint that they cannot permissibly weigh against other things. Still, there are reasons to believe that within such a constraint, important further questions about nonideal fairness arise for luck-egalitarians. To see how, consider two principles of nonideal justice that would equally 6 I thank an anonymous reviewer for encouraging me to examine these matters. 21 minimize brute bad luck—one principle that minimizes brute bad luck quickly but with immense immediate costs (e.g. violent revolution), and another principle that equally minimizes brute bad luck more slowly with less-severe momentary costs spread out over a much longer period of time (viz. incremental reform). Although both principles may equally minimize the total amount of brute bad luck in the world, there is still a further question of which distribution fairness requires. Finally, although luck egalitarians might attempt to settle this question by other means—perhaps by arguing that luck egalitarianism requires lowering each person’s brute bad luck below some threshold (Ibid: 930)—the nonideal original position provides a powerful new model for examining what fairness requires here. Now turn to the next step that my previous work defended in a Rawlsian context. In Arvan (2014: 108-14), I argued that given their three higher-order interests, the parties to a Rawlsian nonideal original position should seek all-purpose ‘nonideal primary goods’ for advancing their higher-order interests’ Are there any such goods? I argued there are, and will now defend additional ones, showing how the model can index them to different normative frameworks. First, I argued one nonideal primary good is the opportunity to participate effectively in grassroots social movements organized around Rawlsian ideals (Ibid: 108-10). This, very roughly, is because ‘people are power.’ If one wants to change ‘hearts and minds’ in a nonideal world (viz. the parties’ first higher-order interest) and advance one’s favored rational weightings of ideals against costs (viz. their second and third interests), one all- purpose means is to get ‘allies’—which grassroots groups provide. Second, I argued that because nothing in Rawls’ ideal-theoretic machinery dealt with nonideal costs, we must use the nonideal original position to determine which interests of bystanders (and even 22 members of oppressing classes) are fair to be concerned with in nonideal conditions (Ibid: 101, 104-6, 111-12). Next, I argued that because that because the parties’ higher-order interests are to enable anyone who has Rawlsian ideals to promote those ideals, rationally weigh them against costs, etc., the parties have grounds to treat a kind of qualified openness and inclusivity in grassroots deliberation to be a second nonideal primary good (Ibid: 111- 3). Specifically, the parties have grounds behind the veil to want grassroots deliberation to be open and receptive to anyone demonstrating sincere allegiance to Rawlsian ideals— enabling any such individuals (i.e. ‘allies’) to have a say on how Rawlsian ideals are promoted, weighed against costs, etc. Finally, however, I argued there are also grounds for the parties to agree to a principle affording extra bargaining power in grassroots deliberation to victims of injustice in proportion to their level of oppression (Ibid: 115). This is because every party behind the veil knows that oppressed individuals suffer unjust deprivations— deprivations that, given their Rawlsian ideals, the parties should want to compensate. How might additional bargaining power for the more oppressed be achieved in practice? In a number of ways, including greater proportion of more oppressed individuals in grassroots organizations relative to less-oppressed or non-oppressed allies; greater representation in leadership positions; group norms that require ‘centering’ voices of the more oppressed in debate and deliberation (see Goodkind and Deacon 2004); or even differential voting rights in the group, e.g. plural votes.7 7 Whether some ways of weighting bargaining power are more fair than others (or even unfair) is an important further issue. One possibility I intend to explore in future work is how one substantive requirement defended in this article—that the oppressed and their allies should seek overlapping consensus—might be used to evaluate the fairness of different means of weighting bargaining. 23 Before examining other nonideal primary goods—ranging from social rights and duties to remedial legal, cultural, and economic goods—notice that although I developed the above arguments in a Rawlsian context, the parties to alternative versions of the model (e.g. a Nozickean version, Marxist one, etc.) have reasons to seek analogous nonideal primary goods. First, just as the parties to a Rawlsian nonideal original position should want to ‘change hearts and minds’ to favor Rawlsian ideals, parties to a Nozickean nonideal original position should want to change hearts and minds in favor of libertarian ideals; parties to a Marxist version should want to change hearts and minds to favor communist ideals; etc. Second, just as the parties to a Rawlsian version of the model should regard open and inclusive Rawlsian grassroots groups as all-purpose means for advancing their higher-order interests, parties to a Nozickean version should regard open and inclusive libertarian groups as all-purpose means for doing so relative to their ideals; etc. Although my arguments for these ‘social’ nonideal primary goods may be debated— and I defend additional nonideal primary goods below—the general point is that irrespective of which normative framework the nonideal original position is attached to, its parties have rational grounds to seek certain types of all-purpose goods: specifically, goods for advancing three higher-order interests indexed to their T-duties. Several points here are important. First, the ‘social’ nonideal primary goods identified so far seem independently attractive. Grassroots movements and deliberation have long been identified as a primary nexus of nonideal justice. For instance, liberals tend to identify racial and gender justice with the aims of various civil rights movements; Marxists tend to identify nonideal justice with the aims of communist revolutionary groups; libertarians with fiscally conservative grassroots movements (e.g. the ‘Tea Party’); etc. 24 Second, the nonideal primary goods defended so far have important normative implications. For example, one longstanding question of procedural fairness is whether and to what extent social activism should be open and inclusive. During the 1960’s Civil Rights Movement, whereas Martin Luther King Jr. advocated for including whites in activism— while also calling out those who upheld injustice or stood on the sidelines (King 1963)— many in the Black Power movement advocated against inclusivity (see Ture 1967). Similar debates continue today (see e.g. Desmond-Harris 2017; Pollitt 2017). Irrespective of whether my arguments from the model to openness and inclusivity are sound—though I believe they are—the more central point is that the nonideal original positions offers a powerful all-purpose method for rigorously investigating what fairness requires here. Third, the model can be used to derive procedural and substantive requirements for another class of social nonideal primary goods: interpersonal rights and duties. Such rights and duties have long been at the center of feminist theory and activism, as reflected in arguments for rights to freedom from epistemic injustice (see Fricker 2007; Kidd et al 2017) and duties to trust particular standpoints or forms of testimony (Khader 2017; McKinnon 2017). Further, such rights and duties can clearly advance the three higher-order interests of the parties to the model—viz. pursuing their T-duties, enabling people to rationally weigh T-duties against nonideal costs, etc. However, the parties to the model should not know behind the veil which particular social rights and duties they favor. The reason why is simple: not everyone the parties represent in nonideal conditions has the same views or accepts the same arguments about which social rights and duties best advance their higher-order interests. Consequently, instead of agreeing upon a determinate list of social rights and duties, the parties appear to have grounds behind the veil for favoring a fair real-world 25 procedure for settling which social rights and duties people have: a procedure giving every individual the parties might be a fair say over which rights and duties people have. We also already have the beginnings of what the parties should take such a procedure to be: open and inclusive grassroots deliberation guided by their T-duties and affording extra bargaining power to the oppressed. Why? Again, because such a procedure would, if implemented, give every person the parties might be opportunities to have a say in activist deliberation over what people’s rights and duties should be, given their T-duties and nonideal costs. Finally, as we will now see, the parties also have grounds to favor a further substantive requirement to help ensure deliberation generates rights and duties fair to all. Recall that the parties are to deliberate behind the veil as though they could be anyone in nonideal conditions motivated by T-duties: not just members of oppressed populations, but also bystanders and sympathetic members of oppressing classes—‘allies’ to the oppressed who also face nonideal costs (of social reform) they would never face in ideal conditions. Because the parties deliberate on the assumption they could be any such individuals—and will not want to have their interests ignored or dominated once the veil is raised—the parties have grounds to want no subgroup’s interests to dominate the others. To be clear, the parties do have compensatory grounds to afford extra bargaining power to the oppressed to compensate for oppression. The point is simply that relative to that extra bargaining power, the parties have grounds to want deliberation to result in an overlapping consensus (see Rawls 1993: Part II, Lecture IV): specifically, agreements on social rights and duties that no one, neither the oppressed nor their allies, considers unfairly exploitive. Four points are important here. First, notice how well the basic procedural element of this account—settling social rights and duties by grassroots deliberation—coheres with 26 how activism is already widely understood. Grassroots activism, ranging from historical civil rights movements to #MeToo, has long focused on precisely these issues: that is, on publicly debating, negotiating, and enforcing which social rights and duties people have in combatting injustice (see e.g. Desmond-Harris 2017). Second, if I am correct, the model justifies important procedural and substantive constraints on activism to ensure no one is unfairly exploited. It requires activism to be open and inclusive to all those who demonstrate commitment to their T-duties, and for activism to seek consensus agreements on social rights and duties, albeit ones ‘tugged’ substantially in the direction of the interests of oppressed via extra bargaining power (viz. means outlined earlier). Third, although my arguments to these conclusions may be debated—raising important further questions about how to ensure that the interests of the oppressed are prioritized rather than displaced by the interests of more privileged allies (or worse)8—the most relevant point again is that the model provides a powerful new framework for rigorously examining what fairness requires here. Finally, as we will now see, the parties also have grounds to seek several additional nonideal primary goods: remedial legal, economic and cultural protections. Consider the National Labor Relations Act (NLRA) of 1935, which created legal rights and procedures designed to correct ‘inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers…’ (NLRA, Title 29, Ch. 7, Subchapter II U.S.C.: §151). Similarly, consider the Civil Rights Act of 1964, which created laws and procedures to protect US citizens against unfair discrimination. Neither Act of Congress would presumably be necessary in an ideal Rawlsian society that strictly complied with Rawls’ two principles of ideal justice. Instead, the NLRA 8 I thank Laura Kane for encouraging me to recognize these concerns. 27 and Civil Rights Act afford people remedial legal rights and opportunities—ones that serve to advance all three higher-order interests of the parties to a (Rawlsian) nonideal original position. First, the NLRA and Civil Rights Act both plausibly promote Rawlsian ideals of economic fairness and equal basic rights and liberties (higher-order interest 1). Second, both Acts created institutions—the National Labor Relations Board and US Commission on Civil Rights—whose roles include disseminating information about the remedial rights and opportunities established. Insofar as such information is an all-purpose means for people to rationally weigh nonideal costs against Rawlsian ideals, both Acts advance the parties’ second higher-order interest. Finally, the NLRA and Civil Rights Act give people all-purpose legal means for advancing their favored weighting of Rawlsian ideals against nonideal costs (higher-order interest 3). For example, the NLRA does not require people to utilize the legal rights and opportunities it provides. Rather, it affords all citizens legal rights and opportunities to pursue unionization if they judge the nonideal costs to be worth it. The Civil Rights Act plays similar functions for combatting unjust discrimination. Whether these particular Acts of Congress advance the parties’ higher-order interests better than all other alternative remedial legal rights requires further investigation. The relevant points for now are that the parties clearly should pursue some such remedial legal goods, and the model provides a formal framework for evaluating which remedial rights best advance the parties’ interests given the veil. These implications are important. First, they cohere with the fact that remedial legal rights and opportunities have been implemented in the US and elsewhere for broadly the reasons identified by the model. Second, the nonideal original position is a powerful model justifying different remedial legal rights and opportunities across different nonideal contexts 28 and ideological frameworks. For example, in previous work I suggested that parties to an international nonideal original position have grounds to agree upon a higher-order human right: very roughly, a right of oppressed peoples to collectively determine through fair international institutions (e.g. UN consultation) the costs they should have face for the sake of promoting their first-order human rights (see Arvan 2008: chs. 3-4). If correct, this could be an important contribution to international theory and practice—as such a right might serve, if embedded in international law and practice, to protect oppressed peoples against unfair forms of ‘humanitarian’ intervention.9 Third, as we will now see, the nonideal original position justifies different remedial legal rights and opportunities depending on which normative framework we conjoin with it. For example, suppose Nozickean libertarianism is correct, and we plug libertarian T- duties into the model: duties to rectify historical injustices and respect individual liberty. Given these motives, the parties to a Nozickean version of the model have grounds to reject the National Labor Relations Act as a remedial legal right, at least in its current form. This is because central features of the NLRA are fundamentally inimical to respect for individual liberty. For one thing, the NLRA makes a majority vote to unionize legally binding on all employees in a bargaining unit, restricting the liberty of those who would prefer to opt out (NLRA: Sec. 9, § 159, a & b). Although the parties to a Nozickan nonideal original position might consider this restriction on liberty given their T-duty to rectify historical injustice, it nevertheless conflicts with their conditional T-duty to respect individual liberty. Consequently, the parties to the Nozickean model have grounds to consider alternatives to 9 Ibid: 165-6. To take one example, one of many justifications the United States gave for its 2003 invasion of Iraq was the right of the Iraqi people to freedom from tyranny. 29 the NLRA that might rectify injustice while better respecting liberty. One alternative might be a revised version of the NLRA—one creating legal rights and opportunities to unionize but also legal rights for individuals to opt out. Although this alternative might undermine the effectiveness of collective bargaining (viz. rectification), it would better respect individual liberty. Consequently, the parties to the Nozickean model should probably consider both alternatives (as well as any other relevant alternatives), and decide which to favor by reference to whichever decisionmaking rule—maximin or otherwise—is rational given the veil of ignorance. By a similar token, parties to a Marxist nonideal original position should presumably seek very different remedial legal rights and opportunities. Given their Communist ideals, they should plausibly favor something like an ‘Employee Ownership Act’ designed to increase worker ownership of corporations while giving people legal rights and opportunities to influence the nonideal costs they face in the process. Finally, the parties have clear grounds to seek ‘economic and cultural’ nonideal primary goods—remedial policies and institutions designed to provide all-purpose cultural and economic support for effectively utilizing their other nonideal primary goods. One plausible institutional example is the NAACP Legal Defense and Educational Fund, a non- governmental social institution that provides unjustly marginalized populations with legal, educational, and economic assistance in areas ranging from affirmative action to coalition building, policy research, voting, fair housing, and criminal justice. A plausible policy example is Welfare for the unemployed—which parties to a Rawlsian nonideal original position should presumably want to promote Rawlsian ideals (viz. fair equality of opportunity); parties to a Nozickean version might favor for rectification but tailor to libertarian ideals (viz. their T-duty to respect liberty); etc. 30 Because the creation and maintenance of remedial legal, cultural, and economic goods carry nonideal costs of their own, the parties to the nonideal original position should deliberate about these matters as well. Two obvious possibilities present themselves here. First, the parties might agree upon priority relations among nonideal primary goods. For instance, insofar as grassroots activism is an all-purpose method for individuals to influence the costs they should endure for creating remedial legal, economic, and cultural protections, the parties might favor prioritizing their social primary goods (i.e. fair grassroots deliberation). A second possibility is the parties might use a particular decisionmaking rule (e.g. maximin) to decide these matters, holding that nonideal primary goods should be distributed in whichever way is maximally advantageous to the most oppressed. Further development of these ideas must wait for another day. The point for now is that there are systematic reasons to believe that the nonideal original position is an attractive and powerful model for deriving procedural and substantive principles of nonideal fairness relative to whichever broader normative framework it is conjoined with. Conclusion This article argued that fairness is normatively central to nonideal theory. It then argued that diverse theorists have grounds to adopt a new method for investigating nonideal fairness: a ‘nonideal original position.’ Finally, this article outlined grounds for believing the model can be used to derive principles of nonideal fairness indexed to different normative frameworks and nonideal contexts—principles that cohere with moral commonsense, the history of activism, and contemporary legal practice, while also promising more controversial forms of normative guidance. For these reasons, I submit that theorists of diverse backgrounds should take interest in and examine the model further in future research. 31 Marcus Arvan University of Tampa marvan@ut.edu mailto:marvan@ut.edu 32 References Alexander, M. (2012). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press. Appiah, K.A. (2011). ‘“Group Rights” and Racial Affirmative Action’. The Journal of Ethics, 15(3): 265-280. Arvan, M. (2016). Rightness as Fairness: A Moral and Political Theory. London: Palgrave Macmillan. ----- (2014). ‘First Steps Toward a Nonideal Theory of Justice’. Ethics & Global Politics, 7(3): 95-117. ----- (2008). A Non-Ideal Theory of Justice. PhD Dissertation. University of Arizona. Beauchamp, T.L. (1998). ‘In Defense of Affirmative Action’. The Journal of Ethics, 2(2): 143- 158. Bentele, K.G. and O'Brien, E.E. (2013). ‘Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies’. Perspectives on Politics, 11(4): 1088-1116. Burns, P. and Schapper, J. (2008). ‘The Ethical Case for Affirmative Action’. Journal of Business Ethics, 83(3): 369-379. Carcien, M.D. (2010). ‘Rawls and Reparations’. Michigan Journal of Race & Law, 15: 268-316. Coates, T. (2014). ‘The Case for Reparations’. The Atlantic, June 2014 issue, https://www.theatlantic.com/magazine/archive/2014/06/the-case-for- reparations/361631/, accessed 10/6/2018. Daniels, N. (1985). Just Health Care. Cambridge: Cambridge University Press. Desmond-Harris, J. (2017). ‘Doubts About Inclusive Feminism Have Little To Do With The Women’s March. They’re Rooted In History’. Vox, https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ 33 https://www.vox.com/identities/2017/1/25/14355302/womens-march-feminism- intersectionality-women-of-color-white-feminists, accessed 9/29/2018. Dworkin, R. (2002). Sovereign Virtue: The Theory and Practice of Equality. Cambridge: Harvard University Press. ----- (1993). ‘Justice in the Distribution of Health Care’. McGill Law Journal, 38: 883-98. Elster, J. (1978). ‘Exploring Exploitation’. Journal of Peace Research, 15(1): 3-17. Erman, E. and Möller, N. (2013). ‘Three Failed Charges against Ideal Theory’. Social Theory and Practice, 39(1): 19-44. Espindola, J. and Vaca, M. (2014). ‘The Problem of Historical Rectification for Rawlsian Theory’. Res Publica, 20(3): 227-243. Farrelly, C. (2007). ‘Justice in Ideal Theory: A Refutation’. Political Studies, 55(4): 844-64. Fricker, M. (2007). Epistemic Injustice: Power & the Ethics of Knowing. Oxford: Oxford University Press. Gaus, G. (2016). The Tyranny of the Ideal: Justice in a Diverse Society. Princeton: Princeton University Press. Goodkind, J.R. and Deacon, Z. (2004). ‘Methodological Issues in Conducting Research with Refugee Women: Principles for Recognizing and Re‐centering the Multiply Marginalized’. Journal of Community Psychology, 32(6): 721-739. Harris, L. C., & Narayan, U. (1994). ‘Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate.’ In LaFollette, H. (ed.), Ethics in Practice: An Anthology, 3rd edition (Malden: Blackwell, 2007), pp. 492-504. Hart, H.L.A. (1955). ‘Are there any natural rights?’. The Philosophical Review, 64(2): 175-191. https://www.vox.com/identities/2017/1/25/14355302/womens-march-feminism-intersectionality-women-of-color-white-feminists https://www.vox.com/identities/2017/1/25/14355302/womens-march-feminism-intersectionality-women-of-color-white-feminists 34 Horowitz, D. (2001). ‘Ten Reasons Why Reparations for Blacks is a Bad Idea for Blacks—and Racist, too’. FrontPageMagazine.com, reprinted in The Black Scholar: Journal of Black Studies and Research, 31(2): 48. Jacobs, L. (1996). ‘Can an Egalitarian Justify Universal Access to Health Care?’. Social Theory and Practice, 22(3): 315-348. Kang, H.R. (2016). ‘Can Rawls’s Nonideal Theory Save his Ideal Theory?’. Social Theory and Practice, 42(1): 32-56. Kant, I. [1785]. Groundwork of the Metaphysics of Morals. In Gregor, M.J. (ed.), The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy (Cambridge: Cambridge University Press, 1996): 38-108. Khader, S.J. (2017). ‘Transnational Feminisms, Nonideal Theory, and “Other” Women’s Power’. Feminist Philosophy Quarterly, 3(1): 1-24. Kidd, I.J., Medina, J., and Pohlhus Jr., G. (2017). The Routledge Handbook of Epistemic Injustice. New York: Routledge. King Jr, M.L. (1963). ‘Letter from Birmingham jail.’ Reprinted in Liberating Faith: Religious Voices for Justice, Peace, & Ecological Wisdom (Rowman & Littlefield, 2012), pp. 177-187. Knight, C. (2013). ‘Luck Egalitarianism’. Philosophy Compass, 8(10): 924-934. Kocher, R.P. and Adashi, E.Y. (2011). ‘Hospital readmissions and the Affordable Care Act: Paying for Coordinated Quality Care’. Journal of the American Medical Association, 306(16): 1794-1795. Korsgaard, C. (1996). Creating the Kingdom of Ends. Cambridge: Cambridge University Press. 35 Krishnamurthy, M. (2013). ‘Completing Rawls's Arguments for Equal Political Liberty and its Fair Value: the Argument from Self-respect’. Canadian Journal of Philosophy, 43(2): 179- 205. ----- (2012). ‘Reconceiving Rawls's Arguments for Equal Political Liberty and Its Fair Value’. Social Theory and Practice 38(2): 258-278. Lawford-Smith, H. (2010). ‘Debate: Ideal Theory—A Reply to Valentini’. Journal of Political Philosophy, 18(3): 357-368. Marx, K. [1891]. Critique of the Gotha Program. Rockville: Wildside Press, 2008. Marx, K. and Engels, F. [1848]. The Economic and Philosophic Manuscripts of 1844 and the Communist Manifesto. Translated by M. Milligan (Amherst: Prometheus Books, 2009). Matthew, D.C. (2015). ‘Rawlsian Affirmative Action’. Critical Philosophy of Race 3(2): 324- 343. McKinnon, R. (2017). ‘Allies Behaving Badly: Gaslighting as Epistemic Injustice’. In Kidd, I.J; Medina, J. & Pohlhus Jr., G. (eds). The Routledge Handbook of Epistemic Injustice (New York: Routledge), pp. 167-174. Mickelson, R.A. (2003). ‘When Are Racial Disparities in Education the Result of Racial Discrimination? A Social Science Perspective’. Teachers College Record, 105(6): 1052- 1086. Mill, J.S. [1861]. Utilitarianism. 2nd edition. In Sher, G. (ed.) (Indianapolis: Hackett, 2001). Mills, C. (2017). Black Rights / White Wrongs: The Critique of Racial Liberalism. Oxford: Oxford University Press. ----- (2005). ‘"Ideal theory" as Ideology’. Hypatia, 20(3): 165-184. ----- (1997). The Racial Contract. Ithaca: Cornell University Press. 36 Mulligan, T. (2017). ‘Uncertainty in Hiring Does Not Justify Affirmative Action’. Philosophia, 45(3): 1299-1311. Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books. Pettit, B. and Western, B. (2004). ‘Mass Imprisonment and the Life Course: Race and Class Inequality in US Incarceration’. American Sociological Review, 69(2): 151-169. Phillips, M. (1985). ‘Reflections on the Transition from Ideal to Non-Ideal Theory’. Nous, 19(4): 551-70. Piketty, T. and Saez, E. (2006). ‘The Evolution of Top Incomes: a Historical and International Perspective’, American Economic Review, 96(2): 200-205. Pojman, L.P. (1998). ‘The Case Against Affirmative Action’. International Journal of Applied Philosophy, 12(1): 97-115. Pollit, K. (2017). ‘Can Feminism Be Too Inclusive?’. The Nation. https://www.thenation.com/article/can-feminism-be-too-inclusive/, accessed 9/29/2018. Rappaport, H. (1999). Joseph Stalin: A Biographical Companion. Santa Barbara: ABC-CLIO. Rawls, J. (2001). Justice as Fairness: A Restatement. Kelly, E. (ed.) Cambridge: Harvard University Press. ----- (1999a). A Theory of Justice: Revised Edition. Cambridge, MA: The Belknap Press of Harvard University Press. ----- (1999b). The Law of Peoples, with ‘The Idea of Public Reason Revisited’. Cambridge, MA: Harvard University Press. ----- (1993). Political Liberalism. New York: Columbia University Press. https://www.thenation.com/article/can-feminism-be-too-inclusive/ 37 ----- (1964). ‘Legal Obligation and the Duty of Fair Play’. In Freeman, S. (ed.), John Rawls: Collected Papers. (Cambridge: Harvard University Press), pp. 117-129. Sen, A. (2009). The Idea of Justice. Cambridge, MA: The Belknap Press of Harvard University Press. Simmons, A.J. (2010). ‘Ideal and Nonideal Theory’. Philosophy & Public Affairs, 38(1): 5-36. Singer, P. (1972). ‘Famine, Affluence, and Morality’. Philosophy & Public Affairs, 1(3): 229- 243. Song, S. (2010). ‘Mortality Consequences of the 1959–1961 Great Leap Forward Famine in China: Debilitation, Selection, and Mortality Crossovers’. Social science & Medicine, 71(3): 551-558. Stemplowska, Z. (2008). ‘What's Ideal About Ideal Theory?’. Social Theory and Practice, 34(3): 319-340. Taylor, R.S. (2009). ‘Rawlsian Affirmative Action’. Ethics, 119(3): 476-506. Ture, K. (1967). Black Power: The Politics of Liberation. New York: Vintage Books. Valentini, L. (2012). ‘Ideal vs. Nonideal Theory: A Conceptual Map’. Philosophy Compass, 7(9): 554-64. Volacu, A. (2017). ‘Bridging Ideal and Non-Ideal Theory.’ Political Studies, https://doi.org/10.1177/0032321717730297. Wenar, L. (2003). ‘What We Owe to Distant Others’. Politics, Philosophy and Economics, 2(3): 283-304. Wiens, D. (2015). ‘Against Ideal Guidance.’ Journal of Politics 77(2): 433-46. ----- (2012). ‘Prescribing Institutions Without Ideal Theory.’ Journal of Political Philosophy, 20(1): 45-70. https://doi.org/10.1177%2F0032321717730297 38 Williams, D.R. and Jackson, P.B. (2005). ‘Social sources of racial disparities in health.’ Health Affairs, 24(2):325-334. 
work_w6ovtttvvjcivkd2myscpz7e6u	----	Microsoft Word - Barrientos_Justice-basedSocial Assistance.docx The University of Manchester Research Justice-based social assistance DOI: 10.1177/1468018116633576 Document Version Accepted author manuscript Link to publication record in Manchester Research Explorer Citation for published version (APA): Barrientos, A. (2016). Justice-based social assistance. Global Social Policy, 16(2). https://doi.org/10.1177/1468018116633576 Published in: Global Social Policy Citing this paper Please note that where the full-text provided on Manchester Research Explorer is the Author Accepted Manuscript or Proof version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version. General rights Copyright and moral rights for the publications made accessible in the Research Explorer are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. Takedown policy If you believe that this document breaches copyright please refer to the University of Manchester’s Takedown Procedures [http://man.ac.uk/04Y6Bo] or contact uml.scholarlycommunications@manchester.ac.uk providing relevant details, so we can investigate your claim. Download date:06. Apr. 2021 https://doi.org/10.1177/1468018116633576 https://www.research.manchester.ac.uk/portal/en/publications/justicebased-social-assistance(15beb7c2-12ae-4997-8ccf-e38b609b5775).html /portal/armando.barrientos.html https://www.research.manchester.ac.uk/portal/en/publications/justicebased-social-assistance(15beb7c2-12ae-4997-8ccf-e38b609b5775).html https://doi.org/10.1177/1468018116633576 (Forthcoming in Global Social Policy 2016) Justice-based social assistance Armando Barrientos – Brooks World Poverty Institute, University of Manchester, UK Abstract What are the main objectives of social protection institutions in developing countries? What should be their scope and reach? What is the source of their legitimacy? Finding appropriate answers to these questions is essential to understanding, and shaping, the emergence of welfare institutions in low- and middle-income countries. Most available answers rely on instrumental arguments. Few make reference to normative principles. The paper draws on three concepts from Rawls – social justice as regulating cooperation, the social minimum, and the need for a freestanding political notion of social justice – to develop a coherent argument for grounding social assistance on social justice. In line with this argument, it identifies some parameters for a justice-based social assistance. The paper then discusses, with examples, the tensions existing between a social justice-based social minimum and ‘real’ social assistance institutions emerging in developing countries. Keywords: social justice, social assistance, social minimum, institutions, developing countries Address for correspondence Armando Barrientos, Professor of Poverty and Social Justice, Brooks World Poverty Institute, School of Environment, Education, and Development, Arthur Lewis Building, University of Manchester, Oxford Road, Manchester M13 9PL, UK Phone: +44 161 306 6436 E-mail: a.barrientos@manchester.ac.uk 2 Introduction The rapid expansion of social assistance has been a feature of developing countries in the new century. Large-scale programmes providing direct transfers in cash and/or in kind to households in poverty are now widespread. In Latin America, around one third of the population live in households receiving such transfers. Ministries of Social Development have been created to manage these programmes with appropriate legislation and budgets. In low- income countries, progress has been slower in part due to acute resource limitations, but sustained economic growth and natural resource revenues have the potential to create more favourable conditions. The emergence of welfare institutions addressing poverty and promoting inclusion amounts to a significant extension of the role and responsibilities of governments, raising important research questions. What are the main objectives of social protection institutions in developing countries? What should be their scope and reach? What is the source of their legitimacy? Finding answers to these questions is essential to understanding, and shaping, the expansion of social protection in low- and middle-income countries. To date, most analysis of the expansion of social assistance in developing countries attempting answers to these questions rely on arguments of effectiveness and efficiency with respect to pre-defined objectives. Few studies examine in any depth the normative principles underlying these objectives. This article contributes to filling in this gap. Drawing on three concepts from Rawls' theory of justice, it develops a coherent argument for justice-based social assistance. The evolution of antipoverty transfer programmes, here described as social assistance,1 in middle income countries shows they constitute in fact a significant extension of the role and responsibilities of governments. To approach them as short-term ‘development interventions’ seriously underestimates their scope (Barrientos 2013). Large-scale antipoverty transfer 3 programmes are spearheading the emergence of welfare institutions tasked with ensuring broader social inclusion and social rights.2 An important implication is that research into antipoverty transfers in developing countries must move beyond a narrow consideration of their instrumental effectiveness and examine their role in, and contribution to, changes in the role of government and social structures. Research on social assistance in developing countries has focused largely on issues of design, especially targeting and conditions (Grosh et al. 2008). To an extent this is a consequence of the instrumental and technocratic approach dominant in international development policy, fully justified by the very practical effects of existing antipoverty transfers on participant households. There is a good understanding of these issues. Implementation was initially under- researched, but knowledge on programme information, registration, disbursement, and monitoring is increasingly available to programme agencies (Barrientos 2013; Cecchini and Martínez 2011). The relatively high incidence of impact evaluations in antipoverty transfer programmes, especially when compared to other development policies and instruments, is generating valuable knowledge on, and confidence in, their effectiveness. More recently, studies on the political conditions associated with the adoption of antipoverty transfer programmes (Borges Sugiyama 2011; Brooks 2015) and on electoral feedback mechanisms (de la O 2013; Fried 2012; Patel, Leila et al. 2014) have examined the linkages existing between political processes and institutions on the one hand and social protection on the other. Research and debate on the deeper ethical foundations underpinning the growth of social assistance in developing countries has lagged behind (Barrientos 2013; Hickey 2014; Ulriksen and Plagerson 2014). The papers in this Special issue address this deficit. To the extent that antipoverty transfer programmes are seen as ‘development interventions’ on a par with water pumps or malaria nets, discussing their ethical underpinnings could be seen as an unnecessary 4 detour. This article argues that without considering the ethical basis underpinning the emergence of new welfare institutions in developing countries we stand little chance to understand their rapid expansion and the kind of social change they herald. This paper makes a contribution to examining the ethical bases of emergent social assistance in developing countries by drawing from three concepts put forward by Rawls (2001; 2005). First, it advances the view that social assistance is best grounded on social justice, understood as the principles enabling and regulating social and economic cooperation. Second, in societies generating inequality and disadvantage the least advantaged face significant ‘strains of commitment’ undermining the basis for cooperation. In this context, a social minimum is a core component of social justice because (i) it embeds the difference principle, the principle that inequalities in society are only justifiable if they benefit the least advantage, and (ii) because it ensures the stability of social justice. The social minimum works by preventing the ‘strains of commitment’ from becoming excessive. The paper argues that growth of social assistance in developing countries can be best understood as an emerging social minimum. Third, the fact that modern societies contain a plurality of values, beliefs and interests, suggests that only a political conception of justice can provide a basis for a social minimum. It is political in the sense that its legitimacy derives not from universal moral theories but from democratic processes of justification. Drawing on these three concepts developed in Rawls’ work enables an understanding of the growth of social assistance in developing countries as grounded in social justice. The rest of the paper is organised as follows: Section 2 discusses why social justice is the appropriate basis for social assistance. Section 3 discusses the role and content of the social minimum. Section 4 examines the implications for welfare institutions of a political theory of social justice. Section 5 discusses how grounding social assistance in a political notion of justice 5 throws light on ‘real’ social assistance in developing countries before sketching answers to the article's main questions. A final section concludes. Why social justice? In the literature on social assistance or social protection scarce attention has been paid to deeper ethical foundations. Reviewing the literature, Munro (2008) finds three concepts are identified as supporting social protection: needs, risks, and rights (Munro 2008). Social protection or assistance interventions are often justified by reference to society’s responsibility to ensure basic levels of need satisfaction (White 2010). Alternatively, interventions can be justified by society’s responsibility to ensure security, particularly income security. The focus here is on the threat posed by ‘social risks’ like unemployment, ill health, or natural hazards. A third approach justifies social protection interventions on the basis of human or social rights, for example the right to social security in the Declaration of Human Rights or the Covenant of Social and Economic Rights. In this context, social protection interventions involve the progressive realisation of particular rights. In international development policy dialogue a division of labour is noticeable, the UN justifies social protection in the context of needs, the Bretton Woods Institutions do so in terms of risks, and the ILO and other ground social protection on rights (Barrientos and Hulme 2013). While useful in pointing to underlying justifications for social protection and assistance, these concepts are themselves grounded on deeper and more comprehensive ethical views on the roles and responsibilities of welfare institutions. Instead, this paper develops a case for grounding social assistance on a political notion of social justice. Social justice is often taken as synonymous with redistributive justice, as the principles governing the distribution of benefits and burdens in society (Miller 1999). The terms social justice and injustice are often employed 6 to evaluate inequalities in labour earnings, discrimination in employment or occupations, or the distribution of the tax burdens among rich and poor. Equality is the dominant ethical principle in redistributive justice. In the work of Rawls, the terms social justice, distributive justice, and justice are used indistinctly, but they are employed in a broader sense to apply to the institutions that generate benefits and burdens in society and to the way in which these are distributed. Rawls draws a distinction between distributive justice and allocative justice, which helps to clarify this point: The problem of distributive justice in justice as fairness is always this: how are the institutions of the basic structure to be regulated as one unified scheme of institutions so that a fair, efficient, and productive system of social cooperation can be maintained over time, from one generation to the next? Contrast this with the very different problem of how a given bundle of commodities is to be distributed, or allocated, among various individuals whose particular needs, desires, and preferences are known to us, and who have not cooperated in any way to produce these commodities. This second problem is that of allocative justice (Rawls 2001: 50). The scope of social justice is the basic structure of society, which includes the economic, political, and legal structures governing economic cooperation. What are the principles that should govern economic and social cooperation among free and equal agents? Rawls argues that political processes of debate and justification would lead to agreement around two main principles: 3 Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and Social and economic inequalities are to satisfy two conditions: first they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, 7 they are to be to the greatest benefit of the least advantaged members of society (the difference principle)(Rawls 1971: 44). The second principle is particularly relevant to the discussion below on social assistance. It states that policies likely to foster inequalities are only justified on condition that the inequalities they generate favour disadvantaged groups. To the extent that antipoverty transfer programmes in developing countries are helping establish welfare institutions, it makes sense to seek to find their underpinning on social justice. Rawls difference principle, for example, points to social justice as providing a justification for social assistance. The ‘strains of commitment’ and the social minimum This section reviews contrasting perspectives on the social minimum. It distinguishes a justice- based social minimum from a needs-based social minimum. A justice-based social minimum addresses the ‘strains of commitment’ and, as will be argued below, throws a powerful light on the growth of social assistance in developing countries. An entry point is to acknowledge that the workings of markets, and especially freedom of occupation, are likely to result in strong pressures pushing away from a just society. As a consequence, what the “theory of justice must regulate is the inequalities in life prospects between citizens that arise from social starting positions, natural advantages and historical contingencies”(Rawls 2005: 271). The focus of the theory is to ensure the main institutions in society can address these inequalities in life prospects and ensure just economic and social cooperation. The theory of justice therefore focuses on the basic structure, understood as “society’s main political, constitutional, social and economic institutions and how they fit together to form a unified scheme of cooperation over time”(Rawls 2005: xli). 8 Given inequalities inherent in the working of society, sustaining a commitment to economic cooperation and to the institutions of the basic structure can be problematic. It is especially problematic for groups suffering from persistent disadvantage. For them, the 'strains of commitment' could become excessive. What reasons can be provided to persuade those who are disadvantaged, and perhaps severely disadvantaged, to remain committed to the basic structure? The stability of a shared notion of social justice is dependent on how this issue is resolved. A theory of justice needs to specify how continuous commitment could be secured, even from the least advantaged or severely disadvantaged. As the key institution addressing the strains of commitment among the least advantaged, the social minimum assumes a central role in the theory of justice. Rawls initial description of the social minimum in his 1971 A Theory of Justice is sketchy and reflects the then current discussions on welfare institutions in advanced economies. The social minimum is to be guaranteed by the government “either by family allowances and special payments for sickness and employment, or more systematically by such devices as a graded income supplement (a so-called negative income tax)”(Rawls 1971: 243). Rawls early characterisation of the social minimum was subject to an insightful critique by Jeremy Waldron (1986). Waldron’s main point was that Rawls justified the social minimum in terms of the requirements of a theory of justice. Instead, Waldron argued that the social minimum needed to be justified in as a response to urgent need. This meant acknowledging that “a certain minimum is necessary for people to lead decent and tolerable lives” (Waldron 1986: 21). In Waldron’s view, a needs-based social minimum fitted better with the aim of ensuring the strains of commitment do not become excessive. Deprivation, he eloquently writes, 9 in the despair that characterises it, the defiance it excites, and the single minded violence it may occasion, … poses a simmering threat to the viability of the societies it afflicts. There is therefore a prima facie reason why any society should avoid the situation in which significant numbers of people are in need (Waldron 1986: 30). Waldron’s argumentation fits dominant views on the role of social assistance as a means to address urgent need, i.e. poverty. The growth of social assistance in developing countries could be interpreted to reflect heightened concern with urgent need as exemplified by the Millennium Development Goals. The key point is that for Waldron, and the bulk of international development policy dialogue, the social minimum is justified on need not justice. Rawls is not persuaded by Waldron's argument. In later writings he develops and refines the social minimum as a core component of a political notion of social justice. Rawls' pursuit of a justice-based social minimum is illuminating in the context of the argument in this article. A justice-based social minimum is broader in its scope and more specific in its objectives. In line with the difference principle, “the minimum is to be set at that point which, taking wages into account, maximises the expectations of the least advantaged group. By adjusting the amount of transfers, … , it is possible to increase or decrease the – life [AB] – prospects of the more disadvantaged, their index of primary goods…” (Rawls 1971: 252). Rawls’ proposal is for a social minimum that “together with the whole family of social policies, maximises the life prospects of the least advantaged over time” (Rawls 2001: 129).4 Political participation plays a part too. The social minimum is intended to ensure that “the least advantaged feel they are a part of political society” (Rawls 2001: 129). In the context of this paper, it might be helpful to highlight two areas where a needs-based social minimum differs sharply from Rawls' justice-base social minimum: sufficiency and political participation. 10 Waldron’s argument reflects a sufficiency approach to the social minimum, with interventions deployed “if there is a danger of members of that group falling below the level of the social minimum”(Waldron 1986: 23). Sufficiency argues for a moral concern with the least advantaged up to a point, ‘what matters is not that some have less, but that they have enough’ (Frankfurt 1987). Rawls identifies this position with 'restricted utilitarianism'. Utilitarianism weighs social arrangements from the perspective of whether they maximise aggregate utility in society. Restricted utilitarianism acknowledges that where burdens in society fall upon some while benefits fall onto others, a minimum subsistence level guaranteed to all is required. Aggregate utility is maximised over and above this minimum. ‘Restricted utilitarianism’ can be operationalised through the introduction of a minimum consumption/subsistence floor, as in a needs-based minimum. Instead, Rawls' justice-based social minimum focuses on maximising the life-prospects of the least advantaged. In order to achieve this objective, a justice-based social minimum addresses basic needs but within this broader remit. In the context of social assistance, the social minimum is developmental, not compensatory.5 The social minimum thus defined is not a subsistence minimum, as in Waldron, but instead a set of policies maximising the life-prospects of disadvantaged groups embedding the difference principle. This distinction also helps Rawls to contrast what he refers to a capitalist welfare state with a property owning democracy. As he puts it, while “a social minimum covering only those essential needs may suit the requirements of a capitalist welfare state, it is not sufficient for what …I call a property-owning democracy in which the principle of justice as fairness are realized” (Rawls, 2001: 130). The revised version of the Theory of Justice spells out this vision in greater detail. “The idea is not simply to assist those who lose out through accident or misfortune (although this must be done), but instead to put all citizen in a position to manage their own affairs and to take part in social cooperation on a footing of mutual respect under appropriately equal conditions” (Rawls 1971: xv). 11 There are implications for political participation too. One possible interpretation of the role of the social minimum is that it acts as a ‘pacification’ device to ensure the stability of the economic system. This is implicit in Waldron’s approach. Uncoupled from the notion of justice, the social minimum is open to be interpreted in this way. But this is not what Rawls has in mind.6 A justice-based social minimum is effective because it contributes to ensure the social, political and economic inclusion of disadvantaged groups. A justice-based social minimum would need to ensure the full political participation of disadvantaged groups. A justice-based social minimum differs substantively from a floor covering basic consumption needs. The social minimum is not restricted to residual assistance in case of emergencies, although appropriate institutions to address emergencies are needed. It is not a prudential minimum addressing social risks and uncertainty in outcomes, although relevant institutions addressing these also need to be established. The social minimum, together with other policies, prevents the ‘strains of commitment’ from becoming excessive. This is achieved by ensuring that inequalities in society are only acceptable where they maximise the life prospects of the least advantaged, and through policies aimed at ensuring social political and economic participation by these groups. In combination with other institutions, the social minimum helps to ensure citizens can take part in economic cooperation on ‘appropriately equal conditions’. The social minimum is developmental and focused on economic and political inclusion. A freestanding political theory of justice The third concept to be drawn from Rawls is to do with the sources of legitimacy of a theory of justice. In the Theory of Justice, Rawls draws out the principles of justice from the hypothetical deliberation of individuals working under a ‘veil of ignorance’. The ‘veil of ignorance’ enforces 12 a context in which individuals are ignorant of their final position in society, whether they will be advantaged or disadvantaged. The ‘veil of ignorance’ is hypothetical, a contrivance, to ensure deliberation is not overridden by individual’s self-interest. In Political Liberalism he moves towards a fuller process of political deliberation and justification. There, a starting point is recognition of the fact that modern societies contain a plurality of values, beliefs and interests. Pluralism implies that attempts to derive principles of justice from comprehensive, metaphysical, doctrines are bound to end in reasonable disagreement.7 Rawls argues that the fact of pluralism implies only a political conception of justice is feasible. The principles of justice are political in the sense that their legitimacy derives not from universal moral theories but from democratic processes of justification. They can be universally accepted within a polity only as the outcome of political processes of justification. Rawls accepts that agreement on a political notion of justice is not feasible if it requires that citizens abandon their comprehensive doctrines, but he is optimistic that they would come to see the political notion of justice as desirable from within their doctrines.8 It helps that the scope of social justice is limited to the basic structure, leaving outside areas of social life where conduct is informed by comprehensive theories. As a core component of a theory of justice, the social minimum is the outcome of processes of political justification and owes its legitimacy to these processes. This is well understood In the context of social assistance. Social assistance programme and institutions are legitimate, and therefore sustainable, if supported by legislation. In some countries, social assistance is embedded in constitutional provisions. There are important implications for social assistance flowing from a justice-based social minimum. A social minimum belongs within a polity, and draws its legitimacy from it. For practical purposes, a social minimum belongs within nation states. Its independence from comprehensive moral theories and the primacy it grants to 13 political processes place limits on the role of cosmopolitan approaches commonly taken for granted in international development. A freestanding political theory of justice also has implications for the role of scientific knowledge in informing political deliberation.9 The primacy of politics might clash with technocratic approaches to the social minimum and social assistance. In this, and the last two sections, the discussion of the three concepts – the view of justice as enabling and regulating cooperation; the social minimum as a core component of social justice; and the requirement for a conception of justice to be freestanding and political – was intended to sketch a justice-based approach social assistance capable of throwing light on emerging welfare institutions in developing countries. The selection of these three concepts was done with this objective in mind. The argument developed here will hopefully demonstrate the relevance of a political theory of justice to our understanding of emerging welfare institutions in developing countries. Rawls's theory of justice is certainly richer and more comprehensive than the concepts covered in this article. A comprehensive and critical assessment of Rawls' theory of justice is beyond the scope of this article. However, it might be useful to touch upon two criticisms of Rawls with a direct bearing on our discussion. Pogge (1994) criticises Rawls for his reluctance to extend his theory of justice beyond the nation state to the global scale, and also beyond 'ordered societies', that is societies in which a political theory of justice has received universally approval. Rawls' Law of Peoples (2002) only goes as far as describing the responsibilities of 'ordered societies' with respect to non-liberal states as restricted to human rights and economic development. An increasingly globalised world and rapid development in the South would appear to be on the blind side of Rawls' theory of justice. In the context of social assistance, the precise articulation of national political processes and global policies, the 14 MGDs for example, would merit further discussion at the very least. From a different perspective, Fraser (1995) and Young (1990) argue that Rawls' focus on redistribution misses out the significance of recognition as a central component of justice. Their criticisms have direct implications for addressing issues of gender, race, and disability in welfare institutions. Fraser (2005) attempts to combine redistribution and recognition in a comprehensive approach to justice. These two criticisms of Rawls' theory of justice point to areas of discussion and debate on the shape of emergent welfare institutions in developing countries. It is beyond the scope of this paper to examine potential implications for a justice-based social assistance. ‘Real’ social assistance The discussion in the previous sections drew attention to three concepts in Rawls: the view of justice as enabling and regulating cooperation; the social minimum as a core component of social justice; and the requirement for a conception of justice to be freestanding and political. This section aims to link them to ‘real’ social assistance institutions emerging in developing countries. Restrictions of space require a selective focus on a few issues, and preclude a thorough review of the wide range of practice in developing countries. The objective is not to confirm or validate the approach to the social minimum in Rawls, which would greatly exceed the scope of this article. Instead the section has the more limited objective of highlighting, with examples, how the three concepts help throw light upon emerging social assistance in developing countries. Inclusion not ‘welfare’ The essence of the social minimum is (i) to embed the difference principle and (ii) to ensure that the strains of commitment do not become excessive for disadvantaged groups. The overriding objective of the social minimum is to ensure the economic and political inclusion of 15 disadvantaged groups. It has an instrumental dimension, to ensure the stability of the political notion of justice, but this only works as such because of its substantive dimension. The social minimum embeds the principles of justice, and especially the difference principle. This is confirmed in Rawls rejection of Waldron’s critique, the rejection of ‘restricted utilitarianism’, and the rejection of the welfare state as an appropriate social minimum. As a general rule, ‘real’ social assistance programmes have explicit poverty reduction objectives. As an objective, inclusion figures more prominently among social assistance programmes in middle-income countries. The explicit role of social protection policy in securing a harmonious society in China is perhaps the most prominent example. In Latin America, the extension of social assistance programmes has been explicitly argued on social inclusion terms, and in practice it is contributing to extend the reach of social protection to excluded groups. Social assistance has effected a substantive change in the welfare institutions established in the region in the last century, aptly described as truncated (Fiszbein 2005). To an important extent, emerging social assistant programmes in developing countries are productivist, in the sense of aiming to facilitate economic inclusion. Economic inclusion features explicitly in some programmes, employment guarantees in particular. They are also implicit in other programmes, for example social pensions seldom include a work test, whereas contributory pensions always do. Outcomes are important too. There is a growing literature assessing political inclusion outcomes from antipoverty programmes, for example as regards voter registration and turnout (Baez et al. 2012; de la O 2013; Patel, Leila et al. 2014). The extent to which programmes are rules-based or discretionary in terms of their design and implementation is important in this context (Fried 2012). 16 Developmental not compensatory To be effective as a social minimum, it is important that the relevant programmes and policies maximise ‘the life prospects’ of disadvantaged groups, that they have a developmental orientation at their core. This is a very challenging feature of a justice-based social assistance. It makes sense to argue that disadvantaged groups would feel committed to supporting basic institutions in circumstances where their - and especially their children’s - lives can be reasonably expected to improve. This commitment cannot be reduced to personal calculations based on self-interest. Rawls argues that social justice and the scheme of cooperation it regulates “will not be stable unless those who must make sacrifices strongly identify with interests broader than their own” (Rawls 1971: 155). Arguably, Latin American human development conditional income transfer programmes epitomise the developmental orientation of social assistance as they are explicitly designed to address the persistence of poverty and informality across generations. They have explicit human development objectives at their core. However, studies on unconditional programmes, especially social pensions, also identify human development outcomes from transfers. The point is that social assistance taken as a whole, including human development transfers and pure income transfers, could be reasonably expected to influence the ‘life prospects’ of disadvantaged groups. From this perspective, what should be at stake in debates on particular design features is the desirability of incorporating explicit human development objectives. The relative effectiveness of programmes could best be assessed in terms of their human development outcomes. There is broad agreement around the view that social assistance in developing countries lacks the compensatory orientation it once had in European welfare states.10 Another important issue that flows from this discussion is the term structure of social 17 assistance. Only stable and permanent welfare institutions have a chance to influence the life prospects of disadvantaged groups. The really challenging feature of a justice-based social assistance is the focus on ‘life prospects’ or whole lives. It makes sense to measure welfare in the context of whole lives but, as the issue of beneficiary selection indicates, this is hard to do empirically. Studies on public perceptions of social investment associated with human development conditional income transfer programmes in Latin America suggest it facilitates political support broadly (Lindert and Vinscensini 2008), and among high income groups (Zucco 2014).11 Aside from a discussion on the desirability of human development conditions, the point here is that there is a link between political support for poverty reduction and the design of specific instruments. Social assistance not social insurance Rawls explicitly ruled out prudential (insurance) schemes as well as emergency and humanitarian assistance from the social minimum. This is not to suggest that these schemes are unnecessary or undesirable, quite the contrary. But they are not part of the social minimum. Social assistance, on the other hand, is at the core of the social minimum. This is especially the case if it is designed and implemented to ensure inclusion and maximise the life prospects of the least advantaged. This is a controversial view, especially in light of widely held views on the development of European welfare states. In European welfare states social insurance is dominant while social assistance is often residual.12 Different types of social insurance schemes are available, but their core feature is the fact that coverage of risks is dependent on a contributory principle 18 (Plant 2003). In the Beveridge version of social insurance flat contributions have as a counterpart flat benefits. In the Bismarckian scheme, contributions and benefits are stratified. In contrast, social assistance is based on a citizenship principle, and entitlements are not dependent on contributions to particular schemes. South Africa, New Zealand and Australia are examples of countries with welfare institutions primarily based on social assistance. By contrast, Latin American followed the European route. Almost a century after the introduction of stratified social insurance schemes in the region, less than half of salaried workers make regular contributions to pension schemes and health insurance. The linkages existing between contributory- and citizenship-based welfare institutions on the one hand and political regimes on the other have received scant attention in the context of developing countries. Mares and Carnes (2009) find that the emergence of social insurance, including in developing countries, is associated with authoritarian regimes. The recent spread of social assistance in developing countries has been associated with democratisation (Brooks 2015). Political not metaphysical In Rawls view, the social minimum, as a core component of a political notion of justice, is the outcome of democratic processes unfolding within a polity. It is legitimate only under these circumstances and it is freestanding with respect to comprehensive moral doctrines. What are appropriate political processes in the context of the social minimum? They include publicity, supporting legislation, parliamentary scrutiny and budget allocations, rules-based implementation, right of appeal, accountable public agencies. In other words, the social minimum requires appropriate levels of institutionalisation. In developing countries, social assistance programmes are rapidly gaining institutionalisation. This is perhaps truer of middle- income countries than of low-income countries. In Latin America, the institutionalisation of 19 social assistance has advanced rapidly (Cecchini and Martínez 2011). In sub-Saharan Africa some countries have strengthened the legal framework supporting social assistance. Mozambique’s Basic Social Protection Law and Kenya’s commitment to social protection in the new Constitutions are recent examples. These developments reflect political processes of legitimation and accountability. However, institutionalisation and accountability show significant deficiencies in many countries. And in aid dependent countries, the influence of donors militates against domestic political ownership of social assistance programmes (Barrientos and Santibañez 2009; Niño-Zarazúa et al. 2012). International advocacy for social protection often offers social rights as an imperative for developing countries. This applies especially to multilaterals and bilaterals, the ILO and DFID for example, and to international NGOs like HelpAge International. Arguably, it is possible to take human rights as principles reflecting social and political values and priorities. As such, they constitute an important input into national level debates and might be eventually incorporated in national legislation. A different interpretation is to see social rights as supranational legislation or as reflecting deep humanist values. It is an interesting question whether social rights contribute to, or dominate, political processes associated with social assistance. A justice-based social assistance requires it to be free standing with respect to comprehensive moral doctrines. Conclusions Drawing on three concepts from Rawls’ political notion of justice – social justice as regulating cooperation, the social minimum, and the requirement of a freestanding political notion of social justice – the paper argued there is a strong case for grounding social assistance on social justice. Social assistance is a core component of the social minimum, preventing the 'strains of 20 commitment’ from becoming excessive for disadvantage groups and maximising their life- prospects. Linking these concepts to the areas of practice in ‘real’ social assistance in developing countries provided examples how these concepts can throw light on the emergence of social assistance in developing countries. The discussion in the article would be consistent with the following answers to the three core questions raised at the beginning of the paper. What are the main objectives of social protection institutions in developing countries? The main objective of justice-based welfare institutions is to ensure the inclusion of disadvantaged groups, to maximise their life prospects and to ensure, as a result, that their commitment to social justice is sustained. The core features and growth to scale of social assistance in developing countries indicate movement towards these objectives. What should be their scope and reach? In combination with other social policies, justice-based social assistance should ensure a range of policies and programmes ensure the economic, political, and social inclusion of disadvantaged groups. Real social assistance in developing countries has an explicit focus on poverty reduction and extreme poverty eradication, but the broader focus on inclusion is increasingly coming to the fore in middle-income countries. In low-income countries the reach of social assistance programmes is limited, but in middle income countries large-scale programmes reach the majority of households in poverty. A challenge faced by developing countries is to extend the reach of social assistance programmes to include broader disadvantage populations facing economic and political exclusion. What is the source of their legitimacy? Justice-based social assistance derives its legitimacy from political processes of justification within particular societies. This is reflected in practice in the extent of institutionalisation of programmes and policies. Real social assistance shows 21 rapid improvements in institutionalisation in middle-income countries but a slower pace among lower income countries. 22 Notes 1 In institutional terms, social protection includes social insurance and social assistance. Social insurance describes contributory programmes covering life course and employment risks. Social assistance describes budget-financed programmes addressing poverty and deprivation. For the purposes of this paper social assistance, social transfers, and antipoverty transfer programmes are synonymous. 2 The history of welfare institutions in high income countries shows that emerging welfare institutions have feedback effects on social structures and contribute to shape social preferences and institutions (Esping-Andersen 1990; Pierson 1993; Skocpol 1992). 3 Rawls’ justice as fairness has been subject to extensive criticism and development. See Pogge (1989) for a review. 4 Other policies are important too, such as ensuring basic liberties, fair equality of opportunity, preventing monopolies (Rawls 1971). The social minimum is part of a package. 5 Rawls argues that the minimum need not be high. In part because it has limits arising from the need to invest in future generations and also arising from the incentive effects of the collection of tax revenues to support it. “Now off hand it might seem that the difference principle requires a very high minimum. One naturally imagines that the greater wealth of those better off is to be scaled down until everyone has nearly the same income. But this is a misconception, although it might hold in special circumstances. The appropriate expectation in applying the difference principle is that of the long term prospects of the least favoured extending over future generations” (Rawls 1971: 252). 6 Rawls argues that 'restricted utilitarianism' might be ineffective as a 'pacification' device, because it requires the least advantaged to accept their sacrifice for the benefit of others. This explains “why utilitarians should stress the role of sympathy in moral learning and the central place of benevolence among the moral virtues. Their conception of justice is threatened with instability unless sympathy and benevolence can be widely and intensively cultivated” (Rawls 1971: 155). 7 According to Freeman, “Rawls defines a ‘comprehensive doctrine’ as one that includes conceptions of what is of value in life and give life its meaning” (Freeman 2007: 332). 8 Cohen points that a condition that citizens are free and equal suggests this optimism is well founded. As he puts it, to “say that citizens are free is to say, inter alia, that no comprehensive moral or religious view provides a defining condition of membership or the foundation of the 23 authorization to exercise political power” (Cohen 2009: 156). However, this condition is demanding, as “each citizen has to assign priority to the political over the non-political values whenever they come into conflict with the political domain” (Gordon Finlayson and Freyenhagen 2011: 14). 9 It “is important to Rawls that non-controversial findings among experts in the social sciences be permissible basis for arguing for a political conception of justice…”(Freeman 2007: 332). Cohen discusses in more detail the implications of Rawls’ constructivism for the nature of democracy (Cohen 2009). 10 See Hemerijk’s proposal to replace European ‘welfare states’ with ‘social investment states’, including “…a reorientation of social citizenship, away from the compensating freedom from want logic towards the capacitating freedom to act, under the proviso of accommodating work and family life through social servicing and a guaranteed rich social minimum enabling citizens to pursue fuller and more satisfying lives” (Hemerijck 2013: 39). For a contrasting view see Cantillon (2011). 11 Studies on preferences for redistribution find support for the POUM hypothesis (prospect of upward mobility)(Benabou and Ok 2011). 12 “Should any decent welfare state relieve poverty? Of course it should. But in a well-ordered welfare state almost all the jobs of relieving poverty will be done by policies which objectives and rationales are quite different. For all except a few unfortunates who fall through the cracks, the relief of poverty is a by-product of a system of cash benefits founded upon principles that do not include the relief of poverty” (Barry 1990: 503). References Baez, J. E., Camacho, A., Conover, E. and Zárate, R. A. (2012) Conditional cash transfers, political participation, and voting behavior, The World Bank. Barrientos, A. (2013) Social Assistance in Developing Countries, Cambridge: Cambridge University Press. Barrientos, A. and Hulme, D. (2013) ‘Global norms and national politics: The case of social protection’, in M. Langford, A. Sumner, and A. Yamin (eds). MDGs and Human Rights: Past, present and future. Cambridge: Cambridge University Press, pp. 426–438. Barrientos, A. and Santibañez, C. (2009) ‘Social Policy for Poverty Reduction in Lower-income Countries in Latin America: Lessons and Challenges’, Social Policy & Administration 43(4): 409–424. Barry, B. (1990) ‘The welfare state versus the relief of poverty’, Ethics 100(3): 503–529. Benabou, R. and Ok, E. A. (2011) ‘Social mobility and the demand for redistribution: the POUM hypothesis’, Quarterly Journal of Economics 116(2): 447–487. Borges Sugiyama, N. (2011) ‘The difussion of Conditional Cash Transfer programs in the Americas’, Global Social Policy 11(2-3): 250–278. Brooks, S. (2015) ‘Social protection for the poorest: the adoption of antipoverty cash transfer programs in the Global South’, Politics and Society 43(4): 551–582. Cantillon, B. (2011) ‘The paradox of the social investment state:growth, employment and poverty in the Lisbon era’, Journal of European Social Policy 21(5): 432. Cecchini, S. and Martínez, R. (2011) Protección social inclusiva en América Latina: Una mirada integral, un enfoque de derechos, Santiago: CEPAL. Cohen, J. (2009) Philosophy, Politics, Democracy. Selected Essays, Cambridge MA: Harvard University Press. De la O, A. L. (2013) ‘Do conditional cash transfers affect electoral behaviour? Evidence from a randomized experiment in Mexico’, American Journal of Political Science 57(1): 1–14. Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism, Cambridge: Polity Press. Fiszbein, A. (2005) Beyond truncated welfare states: Quo Vadis Latin America?, The World Bank. Frankfurt, H. (1987) ‘Equality as a moral ideal’, Ethics 98: 21–43. Fraser, N. (1995) ‘From redistribution to recognition? Dilemmas of Justice in a “Post-Socialist” Age’, New Left Review 212(1): 68–93. Fraser, N. (2005) ‘Reframing justice in a globalizing world’, New Left Review 36: 69–88. 25 Freeman, S. (2007) Rawls, London: Routledge. Fried, B. J. (2012) ‘Distributive Politics and Conditional Cash Transfers: The Case of Brazil’s Bolsa Família’, World Development 40(5): 1042–1053. Gordon Finlayson, J. and Freyenhagen, F. (2011) Habermas and Rawls. Disputing the political, London: Routledge. Grosh, M., Del Ninno, C., Tesliuc, E. and Ouerghi, A. (2008) For Protection and Promotion. The Design and Implementation of Effective Safety Nets, Washington DC: The World Bank. Hemerijck, A. (2013) Changing Welfare States, Oxford: Oxford University Press. Hickey, S. (2014) ‘Relocating Social Protection within a Radical Project of Social Justice’, European Journal of Development Research 26(3): 322–337. Lindert, K. and Vinscensini, V. (2008) Social Policy, Perceptions and the Press: An Analysis of the Media’s Treatment of Conditional Cash Transfers in Brazil, The World Bank. Mares, I. and Carnes, M. (2009) ‘Social Policy in Developing Countries’, Annual Review of Political Science 12: 93–113. Miller, D. (1999) Principles of Social Justice, Cambridge MA: Harvard University Press. Munro, L. T. (2008) ‘Risks, rights and needs: Compatible or contradictory bases for social protection’, in A. Barrientos and D. Hulme (eds). Social Protection for the Poor and Poorest: Concepts, Policies and Politics. London: Palgrave. Niño-Zarazúa, M., Barrientos, A., Hickey, S. and Hulme, D. (2012) ‘Social protection in Sub- Saharan Africa : getting the politics right’, World Development 40(1): 163–176. Patel, Leila, Sadia, Yolanda, Graham, Victoria, Delany, Aislinn and Baldry, Kim (2014) Voting Behaviour and the Influence of Social Protection. A study of voting behaviour in three poor areas in South Africa, Johannesburg: Centre for Social Development in Africa, University of Johannesburg. Pierson, P. (1993) ‘When effect becomes cause: Policy feedback and political change’, World Politics 45(4): 595–628. Plant, R. (2003) ‘Citizenship and social security’, Fiscal Studies 24(2): 153–166. Pogge, T. (1994) ‘An Egalitarian Law of Peoples’, Philosophy and Public Affairs 23(3): 195–224. Pogge, T. W. (1989) Realizing Rawls, Ithaca NY: Cornell University Press. Rawls, J. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press. Rawls, J. (2001) Justice as Fairness. A restatement, London: The Belknap Press of Harvard University Press. Rawls, J. (2002) The Law of Peoples, Harvard: Harvard University Press. 26 Rawls, J. (2005) Political Liberalism, Expanded Edition., New York: Columbia University Press. Skocpol, T. (1992) ‘State Formation and Social Policy in the United States’, American Behavioral Scientist 35(4-5): 559–584. Ulriksen, M. S. and Plagerson, S. (2014) ‘Social Protection: Rethinking rights and duties’, World Development 64: 755–765. Waldron, J. (1986) ‘John Rawls and the social minimum’, Journal of Applied Philosophy 3(1): 21–33. White, S. (2010) ‘Ethics’, in F. G. Castles, S. Leibfried, J. Lewis, H. Obinger, and C. Pierson (eds). The Oxford Handbook of the Welfare State. Oxford: Oxford University Press, pp. 19–31. Young, I. M. (1990) Justice and the Politics of Difference, Princeton NJ: Princeton University Press. Zucco, C. (2014) Conditionality and support for redistributive transfers: Results from observational and survey-experimental studies, Sao Paulo: FGV. 
work_w6up4vn6lzeuxoq2ac4bb5xeae	----	ise;01nov97 Al-Ghazzali on social justice 1203 Al-Ghazzali on social justice Guidelines for a new world order from an early medieval scholar Ozay Mehmet The Norman Paterson School of International Affairs, Carleton University, Ottawa, Ontario, Canada I. Introduction Al-Ghazzali’s humanism and his theory of state based on social justice make him a political and moral economist of the first order. It is testimony to his greatness that his ideas on good government, Dawlat, based on social justice, ad’l, penned a millennium ago, are still refreshing and relevant today when, as then, doubt and ignorance confuse visions of the future of society. Relatively unknown in the West, the thoughts of this medieval Muslim scholar can help construct a new world order in the twenty-first century based on global equity and social justice. Ghazzali’s ideas will be utilized below for a critical analysis of a discipline now in serious crisis: economic development. The crisis is the global unsustainability of a capitalist system constructed in the post-war period by western economics to accumulate wealth in the West through a trading process which, by effect if not by design, impoverishes much of the rest of the world. Post-war economic development prescriptions have failed to meet the initial promises of mass prosperity precisely because of their neglect of social justice, in particular of income distribution. The root cause here is the pro-capital bias of western economics. Eurocentric prescriptions ennoble a market system which conflicts with ecological and human sustainability (Mehmet, 1995). Now, with increasing calls for global governance for greater equity, Ghazzali’s ideas on good government based on social justice have the potential of making a significant contribution towards a more sustainable world order. The paper is organized in five parts. Following this Introduction, the next section will first sketch out an overview of Ghazzali’s ideal state built on equity. Following this, will be an outline of the nature of crisis in development economics. Then in the following section there is a discussion of the challenge of global governance. The conclusion will return to Ghazzali to infer guidelines for reconstructing global equity in the twenty-first century. International Journal of Social Economics, Vol. 24 No. 11, 1997, pp. 1203-1218. © MCB University Press, 0306-8293 Useful comments on an earlier draft by Professors Michael Marmura and Masud Choudhury are gratefully acknowledged with the usual disclaimer that the author alone is responsible for any remaining errors of fact or interpretation. International Journal of Social Economics 24,11 1204 II. Al-Ghazzali’s ideal state: a synopsis of ethico-economics Abu Hamid Muhammad al-Ghazzali (AD 1058-1111), was born and died in the city of Tus in the Khurassan region of Persia. His life coincided with the Abbasid Dynasty in Baghdad when the caliphate was in decline, although Muslim civilization and culture continued to flourish. Muslim education and knowledge, enriched by the discovery of ancient Greek rationalism, were unrivalled, and the Muslim world was the centre of world trade controlling trade routes to China, Southeast Asia and to the West. By Ghazzali’s time, this world of high culture had already began to show signs of internal division, caused by religious schism and cultism, threatening political and social instability (Fisher, 1979, pp. 76-101). Al-Ghazzali devoted his life to the pursuit of knowledge, never satisfied with what he knew. He alternated between cycles of great intellectual activity and sufism. Inde ed, Ghazzali suffered a number of crises of doubt in his life (McCarthy, 1980; Watt, 1953). One such crisis occurred while he was at the zenith of his fame as a professor and jurist in Baghdad, in AD 1095, when he experienced a nervous breakdown. Suddenly he began to doubt all that he had learned. The corruption and moral decay all around convinced him that he himself was destined for Hell. Announcing a pilgrimage to Mecca, he abandoned his post and family, and went on a secret journey to Damascus in search of his inner self seeking uzlah, solitude. For three years he remained incognito; he became a Sufi mystic. He re-emerged in Baghdad at the dawn of the new millennium convinced that he was “predestined by Allah to be one of the reformers of the religion … ” (Sjadzali, 1991, p. 51). During his life, but especially after his return, Ghazzali maintained a furious pace of intellectual activity, teaching and writing, but whenever possible returned to his native city of Tus for solitude and mysticism. During his life Ghazzali produced no fewer than some 400 books in various fields of theology, jurisprudence, logic, philosophy, ethics as well as extensive commentaries on the Koran. It is not possible even to summarize his major works here. However, reference may be made to his 4-volume Ihya Ulumuddin (Revival of Rel igious Sciences) which was praised by contemporary and subsequent Muslim scholars as an immortal work that came closest to capturing the essence of Koranic knowledge. A central objective of Ghazzali in all his writings was the unity of knowledge, rooted in the Oneness of God, and reason (i.e. intellect plus free will) as the path for all moral concepts ultimately leading to the belief in God. This is remarkably similar to Kant (who lived some seven centuries after Ghazzali) for whom reason was the categorical imperative of freedom and free will. Kant, however, believed that a clear exposition of morality led to belief in God. In view of these similarities, it has been argued that “what Imam Ghazzali was to Islamic epistemology, Immanuel Kant was to occidental epistemology” (Choudhury, 1997). Al-Ghazzali’s concept of a unified knowledge is the source of his political theory. The core of this theory is humanism derived from a holistic, harmonious, well-ordered cosmos, created by God for a clear purpose: good Al-Ghazzali on social justice 1205 government. Good government, is a divine gift, entrusted to a wise ruler, a monarch accountable to God “ … to bring development and prosperity to the world through justice and equitable rule” (Bagley, 1964, p. 55). The opposite of this good government is a state of chaos and insecurity, similar to Hobbes’s natural state. At the centre of Ghazzali’s ideal state is the individual with a spiritual as well as a social personality. Spirituality gave the individual inner strength through solitude and contemplation, often in mystical experience, as exemplified in Ghazzali’s own life. The individual’s social and material needs enabled complete living. As a social being in this temporal life the individual had basic needs, but their satisfaction demanded moderation and avoidance of excess. Respect for, and tolerance of others were essential requisites of virtuous living. In this temporal life, the individual was like a pilgrim on a journey seeking, although never quite achieving, perfection through virtuous living. (Perfection belongs to God.) In pre-Islamic Arabia, virtue meant courage in defending honour, as for example the tribe’s honour (Umaruddin, 1977, p. 50). After Islam, the concept of “individual-in-community” emerged based on a synthesis of ethics and economics. The Islamic concept of “individual-in-community” sharply contrasts with the self-centred utility maximizer idealized in neoclassical economics in an unbounded, unsatiable quest for acquisition and accumulation. The neo- classical “economic man” is divorced from ethics; there is no concern for others. No such divorce is conceivable in Islam. Here, individual identity is a multi- layered manifestation, expanding and developing from the self through self in family, then in neighbourhood, and finally in Ummah, the global brotherhood of the faithful. In all actions, personal, economic, social and political, the individual must be guided by rights and duties to God (as in Ibadah), and others in interpersonal relations (as in Muamalat). Sharing, reciprocity and charity are essential requirements in demonstrating virtue in this life in preparation for the next following the individual’s ultimate accountability before the Creator on the day of final judgement. The individual’s real identity and permanent rewards are revealed on that occasion. Ghazzali goes furthest among early Muslim thinkers in specifying the qualities of a good individual (Umaruddin, 1977, Parts III and IV). He contrasts virtues and vices, knowledge and ignorance, and details moral guidelines for ethical living. He specifies as the end of human action in this life an ethical system for virtuous living in accordance with God’s will, and subordinates the economic system as a means to that end. Ghazzali’s economic is based on private property and ownership, but economic relations are subject to self- imposed (voluntary) rules of moderation, honesty and integrity. However, Ghazzali is non-Hellenic and non-rationalist in standard Western terms. This important points bears some elaboration as it holds the potential key for understanding the failure of Eurocentric economic theorizing (to be discussed in detail presently). International Journal of Social Economics 24,11 1206 In neoclassical economics, the only binding constraint on the consumer is the consumer’s budget. In Ghazzali’s Muslim state, “the individual-in-community” is subject to binding constraints of two kind. First, he must sacrifice part of his income for charity to acquire virtue. Second, he must internalize community preferences as a responsible member of society. Thus, conspicuous consumption, such as luxuries and extravagance, are to be avoided through self-restraint checked by individual intelligence. Similarly, producers and traders, as “individuals-in-community” are enjoined to produce community approved goods and avoid profiteering and other unfair trade practices. Ghazzali’s ethico-economic system is non-Christian, non-Hellenic and non- rationalist. It is not Christian because there is no Original Sin here. Every individual is inherently good, though quite cap able of wrongdoing. The individual’s goodness derives from the fact that he/she is created in God’s image and endowed with intellect as God’s unique gift to human beings. Intellect, coupled with judgement based on knowledge, is what differentiates humans from other creatures of God in the animal kingdom. Ghazzali is profoundly non- Hellenic and non-rationalist because his ethics and politics are rooted in the Oneness of God to which reason is inexorably tied, not in some natural order viewed merely as a subject or field of scientific observation. Of central importance in Ghazzali’s political discourse is the idea of the just monarch as a unique divine gift to enable good government. Thus, Ghazzali’s state of nature is a harmonious state endowed with good government and basic material needs for a comfortable life. Here competitive economics do not exist. God has ensured adequate supplies of good things required for comfortable living. Excess accumulation of assets, savings, hoarding or stockpiling are to be avoided. Life in Ghazzali’s state is not lonely, nasty, brutish and short as in Hobbes’s. Nor is his individual anything like Rousseau”s “noble savage” without civilization. Like these Western philosophers, Al-Ghazzali lived and wrote in a time of great political and civil unrest. Unlike them, however, he did not lose his confidence in the perfectibility of the individual through knowledge and wisdom guided by faith. Ghazzali himself experienced periods of doubt and chose mysticism for inner peace (Lazar us-Yafeh, 1975). He believed that knowledge was shakeable by doubt; indeed doubt was a necessary condition for new knowledge. His faith, however, remained unshaken. Outwardly, as a teacher of social science, he yearned for stability, the key to which was good government based on reform (from within) and equity. His ideal state, shaped by Platonic ideals of justice and wisdom, is built on ethics. His masterpiece on political theory, Counsel for Kings (Bagley, 1964) constructs a state as a system of social justice. Good government is the rule of wisdom based on knowledge articulated by scholars advising a wise king “whose heart is an abode of justice” (Bagley, 1964, p. 90). Justice is the highest quality of a wise ruler as demonstrated by Ghazzali’s citation of Aristotle’s answer to Alexander’s question whether courage or justice is higher: “If the king has ruled justly, he will not need courage” (Bagley, 1964, p.75). However, justice itself requires a careful and constant balancing of qualities “that have to be linked in Al-Ghazzali on social justice 1207 pairs if they are rightly to be used: intelligence must be coupled with knowledge, wealth with gratitude, charity with kindness, effort with Dawlat (good government), when Dawlat comes, all the qualities must go with it.” (Bagley, 1964, p. 97). The paramount duty of Dawlat is to promote ad’l, social justice, “to bring development and prosperity to the world through justice and equitable rule” (Bagley, 1964, p. 55). The duty of wise rulers is “to develop the world … because the g reater the prosperity, the longer would be their r ule and the more numerous would be their subjects … ” (Bagley, 1964, p. 56). Conversely, there is a direct correlation between injustice and under-development, for “just as the world is made prosperous through justice, so is it made desolate through injustice” (Bagley, 1964, p. 92). Indeed, “one hour of just government is better than sixty years of worship” (Bagley, 1964, pp. 71-2). Ghazzali’s ethical foundations for the state stand in sharp contrast with Western political theory from Machiavelli to Thomas Jefferson. There is not even a hint of Machiavellian opportunism in Ghazzali. Nor is there an inherent tension between the individual and the state as in Paine and Jefferson. Of course, Ghazzali’s state is non-democratic; it is feudal and monarchical. Regime stability is, for Ghazzali, sacred because instability leads to chaos and anarchy. Political change must be reform from within, guided by knowledge, wisdom and justice. Ghazzali’s ideal state differs also from Plato’s philosopher-king by a set of checks and balances. Two sets of checks and balances are formulated, one divine, the other secular. In the first case, the king’s rule is a trusteeship from God to whom he is ultimately answerable. In secular, daily actions and decisions, the king is limited by advice from the learned scholars, ulama. Thus, Ghazzali approvingly quotes the sages when they stated: “The religion depends on the monarchy, the monarchy on the army, the army on supplies, supplies on prosperity, and prosperity on justice” (Bagley, 1964, p. 56 and footnote 1). From Ghazzali to subsequent Muslim scholars, these checks and balances have formed the bedrock of traditional Islamic political theory. Known as the Circle of Equity, their most complete statement is found in Ibn Khaldun (AD 1332-1406), medieval Islam’s last great scholar, and Khaldun’s Ottoman protégés in the sixteenth century: There can be no royal authority without the military. There can be no military without wealth. The subjects produce the wealth. Justice preserves the subjects’ loyalty to the sovereign. Justice requires harmony in the world. The world is a garden, its walls are the state. The Holy Law [shari’ah] orders the state. There is no support for the shari’ah except through royal authority (Fleischer, 1984, p. 49). Not long after Ghazzali, Islamic intellectual development stopped to flourish as a result of the disastrous “Closing of the Gate of Ijtihad” in which Ghazzali himself played a negative role (Mehmet, 1994, pp. 60-1). This ended ijtihad, International Journal of Social Economics 24,11 1208 critical inquiry and replaced it with blind repetition and rote learning (Rahman, 1982). While the “Gate of Knowledge” is still closed in many parts of the Muslim world, Ghazzali’s ideas on social justice, one millennium after they were written, remain a challenge for all well-meaning social scientists interested in global equity as we stand at the dawn of a new millennium. This challenge is especially valid for Development Studies, a field of Western economics which rose into prominence in the post-war period with a wonderful and generous promise of global prosperity for all. However, now the field is facing a serious crisis of relevance and is in desperate need of refocus and reconstruction. III. The rise and fall of development economics Development economics has come of age in the post-1945 period. It evolved as a branch of Western economics partly as a response to de-colonization but mainly as a discipline to meet the challenges of a new Third World, ranked behind the First (Capitalist) and Second (Communist) Worlds. In universities and colleges courses and textbooks aspired to teach students the economics of development (Gillis et al., 1992; Hirschman, 1986; Meier, 1989; Todaro, 1981). Foreign aid programmes, especially in the aftermath of the Marshall Plan, provided ample career opportunities for students specializing in development economics. In the process, Western capitalism has been globalized. Analytically, the central logic of Western economics is resource capture for profit-driven capitalism. Capture here is by means of capitalization (Mehmet, 1995, pp. 25-9). Over time, all non-capital resources are transformed into new forms of capital. This continuously expands the capital base of the economy, controlled by capitalists. Natural resources become ecological assets; educated labour is converted into human capital; knowledge, as the fourth factor of production, is viewed as intellectual property. All this capture is for profit. Al-Ghazzali, for whom trade and commerce, (in the classical Greek sense), were a natural human activity carried out for the purpose of satisfying material needs of the household, would have favoured “a fair rate of return” on the entrepreneur’s capital. By the same token, he would have denounced Western profit-driven capitalism as profiteering. As such, Western capitalism would be contrary to the rules of fair dealing, justice and beneficence (Umaruddin, 1977, p. 240). How does Western economics promote the capture and exploitation of global resources? We now deal with this question. The basic mainstream model So what is the basic Western ideal capitalist model? (This section is a condensed version of Mehmet (1995, pp. 15-22)). It is a cumulative, joint intellectual product, the work of many minds: this basic model of economic development is a profit-driven growth model with a dynamic and static version. Conceived in grand, universalistic terms, to be challenged below, it is useful to begin formally with the aid of ten equations to highlight the essence of the model: Al-Ghazzali on social justice 1209 I = dK = f ( π ) (1) π = TR – TC (2) Q = F ( K, N, L) (3) Equation (1) highlights the fact that the search for profit was the trigger in Western capitalism. But what exactly was profit? It remains something of a mysterious thing to this day with much confusion even among the greatest authorities, as illustrated below. Mathematically, profit, π, resulted from capital accumulation, dK, which occurred as investment, I, as a consequence of deliberate decision on the part of the investor. Therefore, the narrowly defined profit rate, π/K , was the investor’s return, comparable to labour’s or land’s return. But, profit was also a reward, justified for risk taking, initiative and enterprise, and viewed as a residual return. But what is the relationship of profit to the residual return? How does it differ, if any, from surplus value? Precisely how is it realized? There is much confusion in mainstream theory on these questions, even though in standard textbooks profit maximization is presented as the overriding objective of the rational entrepreneur matching rational consumer’s maximization of satisfaction. But apparently, “it is sufficient to assume that entrepreneurs act as if they tried to maximize profits” (Ferguson and Gould, 1975, p. 221) implying that in reality they need not act as predicted by theory. For the famous English economist, Alfred Marshall, who taught at Cambridge around the turn of the twentieth century, profits were “normal” or “fair”, set by custom in a given industry; and Marshall explicitly recognized the zero-sum relationship of profits and wages, hinting at the phenomenon of capitalization: “The greater part of the apparent profit is real wages disguised in the garb of profit” (Marshall, 1962, p. 506). However, Hicks, another noted British economist of the next generation after Marshall, preferred the term surplus to profit, calling it “that thing we supposed him (i.e. entrepreneur) trying to maximize” (Hicks, 1965, p. 197). In standard textbooks (Henderson and Quandt, 1958, pp. 53-4), especially American and written in the Samuelsonian style with elementary calculus, profit is measured as the excess of total revenue, TR, over total cost of production, TC, as shown in equation (2) implying that profit is a residual, surplus value resulting from entrepreneur’s control of production. But mainstream economics generally rejects the idea of surplus value usually associated with Marx. Mathematically, this rejection is derived from the production function depicted in equation (3), which shows that the level of revenue and cost, and hence profit, depend on the volume of production, Q, which, in tur n, is determined by technical input-output relationship specified in the production function. K, N, and L are capital, land and labour, respectively, the three classic factors of production. These factors of production are all taken to be “separable” and independent of one another – an assumption which is untenable in dynamic terms giving rise to the phenomenon of capitalization (Mehmet, 1995, pp. 22-9). International Journal of Social Economics 24,11 1210 In static terms, however, the “separability” assumption is crucial for market clearance. But market clearance is achieved at the cost of a remarkable degree of fuzziness surrounding profit in mainstream literature, a fuzziness which facilitates extraction of surplus in the Third World for and by mercantilist interests from the First World. There is even more: At the bottom of this fuzziness lies a contradiction. To see it, it is necessary to detail revenues and costs in equation (2) further. Thus, TR = pQ (4) and TC = rK + hN + wL (5) The price, p, in equation (4) is determined in a competitive market according to Adam Smith’s “invisible hand”, and the coefficients r, h and w are the unit prices (or marginal costs) of factors, similarly determined in competitive factor markets. If the system works ideally in accordance with perfect competition, these parameters would also represent marginal productivities of factors. In this competitive framework, with free entry and exit of firms, no profit could arise since total revenue, the value of output priced in equation (4), representing sum of value-added generated by factor productivity, would exactly equal factor payments in equation (5); in other words, no surplus value or residual could result (Henderson and Quandt, 1958, pp. 65-6). Hence, the first-order condition of equilibrium in perfect competition found in standard textbooks on economics: π = 0 (6) The only way an actual, positive profit rate, π/Q, could occur is in a state of disequilibrium when markets fail to clear, or when market imperfections exist in the form of monopoly or monopsony whereby surplus value matches under- payment of factors of production. The flaws of the model We can now consider the internal flaws of the model. In fact, three principal axiomatic flaws are highlighted below. The first is the remarkable result in equation (6). It reflects the fundamental contradiction of the textbook version of the capitalist ideal: that in a system dedicated to its pursuit, no profit, as residual or surplus and distinct from return on K, can be generated, except on such subjective or normative basis as “supernormal profit” or “fair rate of return”. Equilibrium prices are then viewed as “natural” or “fair” prices, with some profit rate tending to equalize among different industries. The ambiguities here are reminiscent of the medieval debate about “just price”. In short, capitalism, as ideal, is self-defeating on its own rules, unless those rules are violated as in monopoly and other market imperfections. Take, for example, the ideal market solution, aggregated from market clearance, known as Pareto Optimum (Bator, 1957; Mishan, 1960; Scitovsky, Al-Ghazzali on social justice 1211 1952). Behaviourally constructed on rationality assumption, this ideal solution requires general equilibrium in factor and product markets to ensure welfare gain for at least one person with no loss to anyone else. Heuristically, it is an elegant theory; its basic flaw is that in reality it is impossible to achieve (Arrow, 1951; Little, 1957; Mishan, 1960) due to “externalities”, positive “transaction costs” and other “market failures”. Consequently, economic development can only be conducted suboptimally, subject to risks and uncertainties of a “second best” solution (Killick, 1981, pp. 18-20; Lipsey and Lancaster, 1957). Moreover, the rational behaviour assumption of the model, based on Wester n individualism, is a poor fit for the cross-cultural environments in developing countries where sharing, co-operation and moderation rather than individualism prevail. All in all, as a guide for policy and planning, the Pareto Optimum model turns out to be an empty box! The above, however, is static, partial equilibrium analysis. If the model is dynamized, so that change over time in consumer tastes, technologies and factors of production are endogenized, the same result is derived but in a more complex manner. Thus, rewriting equation (2) as πt = TRt – TCt (7) would imply that profit can only be generated over time as windfall gains due to fluctuations and swings in market cycles caused by unplanned shortages and surplus. In short, profit or surplus value is realized as return on risk and uncertainty, and from such strategic decisions as speculative buying and selling, or from gambling-like dealing, during the adjustment process when markets fail. Keynes was full of contempt of this casino-style speculation on the London Stock Exchange and Wall Street, calling it “laissez-faire capitalism”, one of the great “contemporary evils” (Keynes, 1936, pp. 159-60). The conclusion of zero profit under ideal conditions is inescapable. Herein lies the first axiomatic flaw in mainstream theory serving capitalism: classical and neoclassicists to this day, base their theories on the ideal norm of perfect competition, yet capitalism can only live and thrive in a world of market imperfections. Put differently, under its own axioms of perfect competition, capitalism is destined to remain trapped in a stationary mode, ultimately withering away for lack of new profits. In practice, however, positive, and indeed rising, profits are realized along the transition path of disequilibria, typically as a result of market power by oligopolies and cartels which can determine price and non-price terms of international trade. Typical examples include strategic stockpiling and inventory management and intra-fir m transfer pricing long practised by Western multinational companies (Morgan, 1980; Yergin, 1993). The second axiomatic flaw of the classical system stems from the ambiguity of short-run and long-run analysis. In theory, there is no (empirically) objective boundary separating the two. Therefore, only subjective or nor mative attributes are assigned to variability or accumulation of factors of production. Thus, in the undefined short run, classical theorists take capital and land as International Journal of Social Economics 24,11 1212 fixed in supply, while labour is made the sole variable factor of production. Hence the classical labour value theory of production, equation (8), the backbone of such theories as the “iron law of wages”, “backward-sloping” supply curve, is hopelessly value-loaded. Q = F* (L) (8) Dl = f (π) (9) Sl = g (w) (10) Equations (9) and (10) represent the centre-piece of competitive labour market theory, in which labour demand, Dl, is profit-driven, while labour supply, Sl, is determined by the wage-rate or the price of human effort, which is usually the cost of food. If the worker’s productivity, the marginal product of labour, in equation (9) is paid in full to the wage-earner in equation (10), no profit arises. Thus, profit necessitates exploitation, i.e. underpayment of labour relative to its productivity. Herein lies the fundamental conflict between labour and capital, the adversarial core of capitalism. Mainstream labour market theories conceal exploitation of labour behind inadequate explanations for wage differentials between occupations or industries such as subjective “net advantages” or “psychic benefits” which, in empirical works, are typically ignored. However, in Third World labour markets, from those on industrial estates and export processing zones to those in “sweatshops”, it is these very “subjective” factors which “distort” and exploit labour creating discrimination, inequality and segmentation (Mehmet, 1971) or informality (de Soto, 1989; Hart, 1973). The mainstream market theory has almost entirely ignored labour market performance until very recently (Berry and Sobot, 1978; Manning and Fong, 1990). The third axiomatic flaw in the mainstream market theory goes to the root of Eurocentricity. It arises from implicit definitions and meaning of key terms, such as “cost” and “benefit” (whose cost or benefit?), “factor of production” (owned or controlled by whom?) “surplus value” (generated how and accruing to whom?) and “rationality” (whose behaviour?). For classical economists these terms had only European meaning. The excess population in Malthus referred to European overcrowding; “vacant” lands in colonies were vacant only because they were populated by “savage” or “uncivilized nations”. Similarly, Ricardian rent applied to land shortage in Europe. Adam Smith’s “opulence” meant British prosperity. The origins of colonial cheap labour and land policies were legitimized, by subsequent theorists and policy makers alike, in the name of masters like Adam Smith, Malthus and Ricardo. “Rational” behaviour, the basic assumption of utility theory, meant behaviour in conformity with the Protestant Ethic; when, for example, supply response in non-European environments collided with Western interests, it was labelled “irrational” as in the Backward-sloping Curve Hypothesis, totally ignoring cultural determinants of labour supply, e.g. family obligations. In all classical economists’ writings non-European peoples were always projected as Al-Ghazzali on social justice 1213 “savage” or “primitive” without any culture and unworthy of development. Consequently, their resources (i.e. factors of production) were deemed to be in a kind of Hobbesian “state of nature”, in which life was not worth much anyway, so land was available for colonization cost-free. Thus, when non-resident ownership of resources is allowed in a Ricardian-type growth model, rapid growth of output, in particular surplus value drained away, may nevertheless impoverish local populations (Mehmet, 1983). Project evaluation methodology: the logic of monetization Economic development, in administrative and policy terms, can be reduced into a “project cycle” popularized by donor agencies, especially the World Bank. The core element of the project cycle is project financing, known as ex ante project evaluation, a cost-benefit appraisal of some investment project to determine, in advance, whether or not it is going to be worthwhile to implement, i.e. whether or not it will be profitable. The profitability test is a systematic method of pricing resources using cost- benefit analysis (CBA). In private, cash-flow analyses of proposed investment projects, market prices are used. But in the more complicated social projects, justified in public interest, CBAs rely on shadow prices whereby market prices are adjusted by analysts to account for “market failures” (Little and Mirrlees, 1974; UNIDO, 1978). What are these “market failures”? They are inherent tendencies of the Western capitalist markets to reflect social, as opposed to private, value. These markets may be efficient in reflecting private value in terms of self-centred, egoistic behaviour; they are unable to account for social value as in the case of a collectivity or community of individuals. Accordingly, Western capitalist economics subordinates equity for efficiency. In practical terms, “ideal” markets are efficient, not necessarily equitable. In the Little and Mirrlees approach, closely identified with the World Bank, market failures are judged from the standpoint of international markets, as if these are cases of “perfect competition”. Thus, “accounting prices” or “border prices” are international prices. By contrast, domestic markets in developing countries are regarded as perverse and inefficient. Therefore, prices in these markets are too “distorted” to be used as indicators of social prices in evaluations of public investment projects. In the Little-Mirrlees approach, the US dollar is taken as the numeraire, the unit of account, while in the UNIDO approach, domestic prices are used, but the same distortions are held to be valid. Monopoly-monopsony exploitation in the international economy How valid are these shadow pricing techniques? The answer depends on the validity of the premiss that international markets are indeed cases of “perfect competition”. The reality, of course, is different and clear. Inter national markets are dominated by multinational corporations (MNCs), mostly Western, which have International Journal of Social Economics 24,11 1214 emerged into prominence in the post-war period (Dunning, 1992). These MNCs are monopolies, monopsonies, and cartels. They control capital and technology. They dominate factor and product markets. As a result of this domination, they extract huge rents from the big spreads between costs they pay for resources in the Third World and revenue they earn from their sales in the First World. All this has been well documented from Hymer (1970) and Helleiner (1976) to the Dependency School (Wilbur, 1984) and, more recently, Barnet and Cavanagh (1994). The patter n of monopoly-monopsony exploitation by multinational companies (MNCs) is manifold. The pattern is evident both in markets for natural as well as for human resources. For example, in the markets for natural resources hardwoods from tropical rainforests or fish from international waters have traditionally been regarded as “free goods” available in a state of nature, justifying zero shadow price in project evaluation. Markets for primary products reveal similar patterns as evidenced by the activities of oil and mining companies. Similarly, now these same MNCs are exploiting labour markets in developing countries by avoiding or evading social security and labour standards. In such countries as Indonesia domestic elites actively collaborate with MNCs to extract huge rents from gate-keeping (Mehmet, 1994). On the global assembly lines, there is capital mobility, but no free movement of labour across national boundaries. In labour-surplus economies, women and children work for substandard wages, unprotected by social security or health and safety regulations. Often there are no worker rights or collective bargaining, and the case of migrant workers, especially women working as domestics, is especially dangerous and exploitative. Under these labour conditions, “fre e trade” becomes “unfair trade” while unregulated capital mobility promotes a “race to the bottom”. These unfair practices in inter national trade get reflected in pricing techniques employed by MNCs enjoying monopoly-monopsony powers. Thus, thanks to transfer pricing, exportables from Third World may be grossly underpriced, while their importables are conversely overpriced. The degree of bias in these prices is a direct consequence of, and varies with, the monopoly- monopsony power of MNCs now dominating international trade. Under these circumstances, monetizing environment or charging higher prices for natural resources, as recommended by some economists (Pearce et al., 1989) will not alter the reality that Western capitalist economics works as an instr ument of global inequity. The fundamental problem is that Wester n economics concentrates attention on efficiency and market relations, and it ignores social justice. Polanyi (1944), among others, long ago pointed out the inherent imbalance of economics. In the post-war period, when development economics emerged into a fully-fledged discipline, it has legitimized a global business system functioning to syphon wealth out of the rest of the world for concentration in capital-rich West. In microeconomic terms, conventional social CBA methodology amounts to little more than a methodological trick in the service of capitalist capture of global resources for capitalist profits. In Al-Ghazzali on social justice 1215 macroeconomic terms, structural adjustment programmes and privatization schemes work to increase foreign indebtedness and dependency in the developing world. The existing capitalist system functions as a mercantilist system, promoting wealth concentration in the West at the expense of local/indigenous people. IV. The challenge of global governance What is the way out of this unfair status quo? Al-Ghazzali would have rejected any revolutionary change, since he considered disorder worse than injustice. Instead, he would have favoured orderly change, reform from within. A recent comprehensive study offering a wide range of ideas and proposals for reform from within is the report by the Commission on Global Governance co-chaired by Ingvar Carlsson and Shridath Ramphal (1995): Our Global Neighborhood. Below is a sympathetic critique of this report. The report is laudable in terms of its action agenda. Its call for strengthening the rule of law worldwide is commendable as is its emphasis on shared values and interdependence among peoples to promote international security. The report’s criticism of the existing trade system, along the lines discussed earlier, and the existing United Nations (UN) system, is refreshing and quite realistic. The report proposes to eliminate several UN agencies, such as ECOSOC, UNIDO and UNCTAD which have become too inefficient to be useful, and it proposes the establishment of an Economic Security Council, paralleling the United Nations Security Council (UNSC), for collective management of the global economy. The report’s basic weakness is that it ignores the problem of legitimacy. It fails to acknowledge explicitly, although it is hinted indirectly, that there is no moral authority behind the existing inter national system. Inter national security is dominated by the Big Five, i.e. permanent members of the UNSC; yet the Big Five account for over 90 per cent of the global arms trade. International economic system is dominated by richest countries represented in the G7 as an exclusive rich man’s club. The UN Charter which begins with the ambitious reference to we the people falls on its face. The General Assembly is neither democratic, nor effective. The whole edifice is the by-product of the 1945 victor- vanquished mindset. Several far-reaching reforms are desperately required for a r ule-based system of good governance worldwide. The following three are indicative, not sufficient: • First, at the global level, ag re ed inter national ethical codes and enforcement rules are essential to regulate international trade, get rid of neo-mercantilism and promote greater global equity. There must be global partnership in order to replace unilateralism with multilateralism in trade, aid, environment and human rights. An essential precondition of such global partnership has to be effective curbs on consumerism in the North to pay for ecological and developmental expenditures in the South. International Journal of Social Economics 24,11 1216 • Second, macroeconomic policies need to be co-ordinated internationally through closer and effective North-South dialogue over transnational boundary problems in the fields of environment, technology, trade and development. Western economics has risen, and is now declining with, the Western idea of a Sovereign Nation-state as the latter erodes under the pressure of globalization and transboundary problems that demand inter nationally ag re ed actions and remedies. New communication technology is inching mankind towards the global village, although racism, injustice and violence, in rich and poor societies alike, make the road ahead far from peaceful and straight. • Third, international fiscal policies are essential to finance global equity. Ecotaxes in the North and development levies on MNCs are the means to generate tax revenues for investment in environmental and developmental projects in the South towards global partnership and equity. In this context, it would be necessary to effect urgently needed radical refor m for g reater efficiency of the UN and inter national organizations. However, new and largely non-NGO channels, are needed as well for fiscal transfers from the North to the South in order to reach the needy target groups in the South directly for maximum effectiveness. In sum, what is required is a new global code of ethics. The focus of global ethics can be constructed out of Ghazzali’s ideals, not out of Machiavelli. Just as Ghazzali’s ideal state would be based on social justice, so, too, the global village needs to be managed for global equity. Good global gover nance requires international dialogue and partnership. The foundation of such partnership is the legitimacy of multicultural consent leading to a rule-based international system managed multilaterally for effective regulation of world trade and sustainable development for global equity. V. Conclusion Development economics should contribute to this goal of internationalism. Idealists like Ghazzali provide the vision of the future of global governance. Ghazzali believed in the force of human knowledge and reason to shape human behaviour for ethical living. True revolutionary change begins with proper education. Development economics desperately needs such a revolution to become ethico-economics. More specifically, to be relevant in the future, development economics will need to deconstr uct its Eurocentric premisses and mercantilist roots, and actually strive to serve global equity. The ultimate aim must be the creation of a sustainable world in which wealth distribution more closely approximates population distribution. As pointed out in the latest Human Development Report (UNDP, 1996), there is no automatic relationship between economic growth and human development, and, as a result the rich are getting richer while the poor get poorer. Al-Ghazzali on social justice 1217 In more personal terms, the development economist needs to be inspired by the humanism of great thinkers like Al-Ghazzali and work towards the goal of integ rating economics with ethics. Inter nationally, the challenge for the contemporary development economist is the promotion of global equity built on de facto shared prosperity for all stakeholders in a one world/global village. The principles for good governance for this task articulated by Al-Ghazzali 1,000 years ago (such as knowledge, justice, wisdom and tolerance) remain as valid today as the day they were written. References Arrow, K. J. (1951), Social Choice and Individual Values, John Wiley, New York. Bagley, F.R.C. (1964), Counsel for Kings, Al-Muluk, N. (trans), Oxford University Press, London. Barnet, R. and Cavanagh, J. (1994), Global Dreams, Simon & Schuster, New York, NY. Bator, F.M. (1957), “The simple analytics of welfare maximization”, American Economic Review, Vol. 47, March. Berry, A. and Sobot, R.H. (1978), “Labor market performance in developing countries: a survey”, World Development, November-December. Carlsson, I. and Ramphal, S. (1995), Our Global Neighborhood, Report of the Commission on Global Governance, Oxford University Press, New York, NY. Choudhury, M. (1997), “The epistemologies of Ghazzali, Kant and the alternative: formalism in unification of knowledge applied to the concepts of markets and sustainability”, in Essays in honour of Clement Allan Tisdell, Part III, ed. O’Brien, J.C., as special issues of the International Journal of Social Economics, Vol. 24 Nos 7/8/9, MCB University Press, Bradford, pp. 918f. de Soto, H. (1989), The Other Path, Harper & Row, New York, NY. Dunning, J.H. (1992), Multinational Enterprises and the Global Economy, Addison-Wesley, Don Mills, Ontario. Ferguson, C.E. and Gould, J.P. (1975), Microeconomic Theory, 4th ed., Irwin, Homewood, IL. Fisher, S.N. (1979), The Middle East, A History, 3rd ed., Knopf, New York, NY. Fleischer, B.B. (Ed.) (1964), Ibn Khaldun and Islamic Ideology, Brill, Leiden. Gillis, M., Perkins, D.H., Roemer, M. and Snodgrass, D.R. (1992), Economic of Development, W.W.Norton, New York, NY. Hart, K. (1973), “Informal income opportunities and urban unemployment in Ghana”, Journal of Modern African Studies, March. Helleiner, G.K. (Ed.) (1976), A World Divided: The Less Developed Countries in the International Economy, Cambridge University Press, New York, NY. Henderson, J.M. and Quandt, R.E. (1958), Microeconomic Theory, A Mathematical Approach, McGraw-Hill, New York, NY. Hicks, J.R. (1965), Value and Capital, An Inquiry into Some Fundamental Principles of Economic Theory, 2nd ed., Clarendon, Oxford. Hirschman, A. (1986), “The rise and decline of development economics”, Development: Seeds of Change, Society for International Development (Rome), Vol. 3, No. 3. Hymer, S. (1970), “The efficiency (contradictions) of multinational corporations”, American Economic Review, May. Keynes, J.M. (1936), The General Theory of Employment, Interest and Money, Papermac 12, Macmillan, London. Killick, T. (1981), Policy Economics, A Textbook of Applied Economics on Developing Countries, Heinemann, London. Lazarus-Yafeh, H. (1975), Studies in Al-Ghazzali, The Magnes Press, Jerusalem. International Journal of Social Economics 24,11 1218 Lipsey, R.G. and Lancaster, K. (1957), “The general theory of the second best”, Review of Economic Studies, No. 1. Lipton, M. (1968), “The theory of optimising peasant”, Journal of Development Studies. Little, I.M.D. (1957), A Critique of Welfare Economics, Oxford University Press, New York, NY. Little I.M.D. and Mirrlees, J.A. (1974), Project Appraisal and Planning for Developing Countries, Basic Books, New York, NY. McCarthy, R.J. (1980), Freedom and Fulfillment: An Annotated Translation of al-Ghazzali’s al- Munqidh min al-Dalal and Other Relevant Works, Boston, MA. Manning, C. and Fong, P.E. (1990), “Labour market trends and structures in ASEAN and the East Asian NIEs”, Asian Pacific Economic Literature, Vol. 4, September. Marshall, A. (1962), The Principles of Economics, 8th ed., Papermac 16, Macmillan, Toronto. Mehmet, O. (1971), “Manpower planning and labour markets in developing countries: a case study of West Malaysia”, Journal of Development Studies, Vol. 8 No. 2. Mehmet, O. (1983), “Growth with impoverishment in a dual economy with capital imports”, Australian Economic Papers, June. Mehmet, O. (1994), “Rent-seeking and gate-keeping in Indonesia: a cultural and economic analysis”, Labour, Capital and Society, Vol. 27 No. 1, April. Mehmet, O. (1995), Westernizing the Third World, The Eurocentricity of Economic Development Theories, Routledge, London and New York, NY. Meier, G.M. (Ed.) (1989), Leading Issues in Economic Development, 5th ed., Oxford University Press, New York, NY. Mishan, E.J. (1960), “Survey of welfare economics 1939-59”, Economic Journal, Vol. 70 No. 278. Morgan, D. (1980), Merchants of Grain, Penguin, Harmondsworth. Pearce, D. et al. (1989), A Blueprint for a Green Economy, Earthscan Publications, London. Polanyi, K. (1944), The Great Transformation, Rinehart & Co, New York, NY. Rahman, F. (1982), Islam and Modernity, Transformation of an Intellectual Tradition, University of Chicago Press, Chicago, IL. Scitovsky, T. (1952), Welfare and Competition, The Economics of a Fully Employed Economy, Unwin, London. Sjadzali, H.M. (1991), Islam and Governmental System, INIS, Jakarta. Todaro, M. (1981), Economic Development in the Third World, 2nd ed., Longman, New York, NY. Umaruddin, M. (1977), The Ethical Philosophy of Al-Ghazzali, Muhammad Ashraf, Lahore. UNIDO (1978), A Guide to Practical Project Appraisal, United Nations, New York, NY. United Nations Development Programme (UNDP) (1996), Human Development Report, United Nations, New York, NY. Watt, W.M. (1953), The Faith and Practice of Ghazzali, London. Wilbur, C. (Ed.) (1984), The Political Economy of Development and Underdevelopment, 3rd ed., Random House, New York, NY. Yergin, D. (1993), The Prize, The Epic Quest for Oil, Money and Power, Simon & Schuster, New York, NY. 
work_w6yw3ug6r5g2bhfrffcnmviule	----	Commentary: law, morality and restorative justice Special features 9 3 R e f e r e n c e s Dejemeppe, B. Le ministere public demain, epee ou canne blanche? Revue de droit p~nal et de criminologie, vol. 76, no. 7-8, 1996, pp. 843-854 M o n d o n , D. Justice imposee, justice negociee: les limites d'une opposition, I'exemple du parquet Droit et societe, no. 30-31, 1995, pp. 349- Renault, G., E. Derricks La collaboration entre les trois services de polices r~guliers Bruxelles, Politeia, 1996 Rubel, H. Victim Participation in Sentencing Proceedings. In: E.A. Fattah (ed.), Toward a Critical Criminology London, MacMillan, 1992, pp. 238- f u l k e n s , F., M. Van de Kerchove Introduction au droit p~nal; aspects juridiques et criminologiques Bruxelles, Kluwer, 1993 (2nd ed.) Tulkens, F., M. van de Kerchove La justice penale: justice imposee, justice participative, justice consensuelle ou justice negociee? Revue de droit p#nal et de criminologie, vol. 76, no. 5, 1996, pp. 445-494 Van de Kerchove, M. L'interet a la reparation et I'int~ret ~ la reparation. In: Droit et int~r~ts Bruxelles, Publications des FUSL, 1993 Commentary: law, morality and restorative justice H a n s Boutellier o p e n s the last issue o n restorativ~ justice a n d m e d i a t i o n q u o t i n g James Q. Wilson: ' I f society is to m a i n t a i n a b e h a v i o u r a l equilib- rium, a n y decline in m o r a l i t y m u s t b e m a t c h e d b y a rise in law' (Wilson, 1994, p. 489). Boutellier rightly p o i n t s o u t t h a t w e s t e r n c o u n t r i e s h a v e t r a n s f o r m e d ' f r o m relatively stable n o r m a t i v e cultures into cultures o f explicit m o r a l pluralism' (p. 7) a n d t h a t t h e p r o m i n e n c e of criminal law e n f o r c e m e n t in enforcing social o r d e r h a s risen. Boutellier's o w n c o n t r i b u - tion, t o g e t h e r with t h e r e m a i n i n g essays in the issue o f this journal, s h o w a direction for r e s p o n d i n g to m o r a l pluralism in m o r e d e c e n t a n d effective ways t h a n building m o r e prisons. Punitive criminal justice is h a r d l y a credible r e s p o n s e to m o r a l p l u r a l i s m b e c a u s e it is s u c h a unicultural, univocal tradition - o n e j u d g e s p e a k s the law o f o n e p e o p l e following p r o c e d u r e s of justice e n s h r i n e d b y the d o m i n a n t culture in t h e society. An a p p e a l of restorative justice is t h a t it c a n b e multicultural. Restorative justice c a n m e d i a t e p r o b l e m s of European Journal on Criminal Policy and Research vol. 5-1 9 4 order here according to procedures that make sense to y o u n g brown w o m e n , there by procedures that make sense to old white men. This is b e c a u s e the less law-like procedures o f restorative justice create a space where participants can be empow- ered with process control. This is a key reason participants like it so much, a p o p u l a r appeal discussed in the contribution of Walgrave and Aertsen to this volume. Boutellier points out that while criminal law is less sustained by the 'self-evident social cohesion' of a national community, the west is discovering a new kind of consensus over 'protection against victimization' (p. 14). If we seem hopelessly frag- m e n t e d over what constitutes 'the good society' and 'fair procedure', preventing and healing the suffering of victims of crime and holding a c c o u n t a b l e those who are responsi- ble for it is s o m e t h i n g a b o u t which we c a n a n d do agree. At first, Boutellier's 'victimological turn' in criminal law s e e m e d danger- ous. Progressives saw victims as angry, retributive people; victim social m o v e m e n t s were at the v a n g u a r d of vengeance. The women's m o v e m e n t has complicated this stereotype as it e n c o m p a s s e s punitive a n d restorative traditions which b o t h have considerable vitality. And now the empirical experience o f the kinds of m e d i a t i o n p r o g r a m m e s discussed in this issue shows that even with a fairly m o d e s t dose of e m p o w e r m e n t , victims can be remarkably forgiving, constructive in their e n g a g e m e n t with problem solving, often actively seeking to advance their own restora- tion by helping with the restoration of the offender. In o t h e r words, victims a n d victims' organizations were at the vanguard of v e n g e a n c e because of the way their voices were silenced by the white male voices of judges enforcing the unicultural legalism of the criminal law. Tony Marshall's essay on 'The Evolution of Restorative Justice in Britain' identifies a p r a g m a t i s m in the tradition that gives it more resilience than a social work ideology that y o u n g people simply 'grow out of crime'. It m a y be, as Marshall points out, that m a n y grew out of crime 'precisely because they were c a u g h t and it was m a d e evident to t h e m that such behaviour was u n a c c e p t a b l e ' (p. 22). Marshall is right that restorative justice has grown not as a result of the persuasiveness of its theory, but because it 'offered pragmatic solu- tions to everyday p r o b l e m s ' (p. 34). The best criminal justice t h e o r y is inductive, drawing out the insights of c o m m o n sense practitioners. But then it gives their p r a g m a t i s m a m o r e abstract quality a n d puts it into a deductive structure. In the shuttling back and forwards b e t w e e n i n d u c t i o n a n d d e d u c t i o n that the best t h e o r y does (Scheff, 1990), the deductive part is important, n o t just an after- thought. Top-down, it shows where the b o t t o m - u p practice has a wider relevance. If restorative justice has Special features 95 p r o v e d m o r e c o n s t r u c t i v e t h a n p u n i t i v e justice with p r o b l e m A for r e a s o n s X a n d Y, a n d X a n d Y a p p l y to p r o b l e m B, t h e t h e o r y forces a challenge as to w h y restorative justice is n o t b e i n g u s e d with p r o b l e m B. While restorative justice p r o g r a m m e s h a v e proliferated at a r e m a r k a b l e rate d u r i n g the 1990s, m o s t o f the p r o - g r a m m e s h a v e b e e n m a r g i n a l r a t h e r t h a n m a i n s t r e a m , as Marshall a n d D~inkel p o i n t o u t in their essays, b e c a u s e the centres of punitive p o w e r h a v e m o s t l y o p t e d to refer only m i n o r cases. A r m e d with strong t h e o r y a n d r o b u s t research t h a t h a s t e s t e d it, assaults c a n b e l a u n c h e d against the b a t t l e m e n t s o f p u n i t i v e power. Victory is far f r o m guaranteed; yet w i t h o u t a credible t h e o r y a n d research t h a t s u p p o r t s it, defeat s e e m s certain. P r a g m a t i s m t h a t leaves restorative justice marginal, p r a g m a t i c a l l y shying a w a y f r o m a n a t t e m p t to s u p p l a n t the m a i n s t r e a m punitive tradition, will leave the b e n e f i t s of restorative justice m o o t . The m o o t n e s s , well illustrated b y Dullum's c h a p t e r o n the h i s t o r y o f the Norwegian Mediation Boards, arises f r o m t h e risk t h a t diversion f r o m p u n i s h m e n t to r e s t o r a t i o n will be e x c e e d e d b y diversion f r o m b e n i g n t o l e r a n c e to excessively intrusive c o m m u n i t y c o n t r o l over m a t t e r s b e s t dealt with b y a s i m p l e c a u t i o n (see Alder a n d Wundersitz, 1994). Frieder Dfinkel's c o n t r i b u t i o n o n ' G e r m a n Experiences w i t h Mediation in a E u r o p e a n Perspective' suggests s o m e e a r n e s t n e s s o f thinking a m o n g criminal justice o p i n i o n l e a d e r s a b o u t e x t e n d i n g m e d i a t i o n f r o m less to m o r e serious offenders. E x p a n s i o n o f restorative justice into adult offending is r e p o r t e d for b o t h Austria a n d Germany. DOnkel's essay shows t h a t this rests in p a r t o n G e r m a n - language r e s e a r c h indicating specific a n d general p r e v e n t i o n effects, high rates of r e a c h i n g s e t t l e m e n t s a n d of delivering t h e c o m m i t m e n t s m a d e in a g r e e m e n t s . Lode Walgrave a n d Ivo Aertsen concur that ?~s e m p i r i c a l e v i d e n c e a n d theoretical reflection o n r e s t o r a - tive justice increase, c o n f i d e n c e in it is growing' (p. 68). This is s o m e t h i n g o f a reversal o f the usual p a t t e r n in criminology, w h e r e c o n f i d e n c e declines as d a t a a c c u m u l a t e a n d t h e o r y b e c o m e s m o r e sophisticated. Walgrave a n d Aertsen find a t e n s i o n b e t w e e n s h a m i n g a n d restoration. T h e y think t h a t s h a m i n g t h e c r i m e is i m p o r t a n t to restoring t h e victim, signifying to the v i c t i m w h o is d e g r a d e d b y a c r i m e t h a t it is t h e c r i m e t h a t m u s t b e s h a m e d n o t t h e victim. However, Walgrave a n d Aertsen see it as difficult to s h a m e the c r i m e w i t h o u t stigmatizing t h e criminal. Picking u p a t h e m e in Crime, Shame and Reintegration, t h e y t h i n k reintegrative s h a m i n g is o n l y p o s s i b l e in c o m m u n i t a r i a n societies. It is m o r e possible in c o m m u n i t a r i a n societies; b u t there is a lot o f reintegrative s h a m i n g in individualistic societies (for example, in t h e families a n d schools in the US t h a t c a n b e s h o w n European Journal on Criminal Policy and Research v o l . 5 - 1 9 6 e m p i r i c a l l y to do t h e b e s t job o f p r e v e n t i n g crime) a n d a lot of s t i g m a t i z a t i o n in c o m m u n i t a r i a n societies. Walgrave a n d A e r t s e n see restorative justice c o n f e r e n c e s as k e e p i n g s t i g m a t i z a t i o n within r e a s o n a b l e b o u n d s b e c a u s e t h e s h a m i n g is k e p t right a w a y f r o m the view o f m e m b e r s o f t h e p u b l i c n o t directly involved in the incident. This s e m i - p r i v a t e c h a r a c t e r of c o n f e r e n c e s is a w o r r y given t h e i m p o r t a n c e o f h a v i n g a publicly a c c o u n t a b l e c r i m i n a l justice system. My own inclination is to believe t h a t w e c a n design restorative justice institutions t h a t e n a b l e g r e a t e r effective public a c c o u n t a b i l i t y t h a n criminal courts. T h e y c a n do this while r e m a i n i n g confidential p r o c e e d i n g s until s u c h t i m e as t h e p a r t i c i p a n t s agree t h a t it is b e t t e r t h a t t h e y b e public p r o c e e d - ings w h i c h issue p u b l i c decisions (which t h e y occasionally do in Australia). T h e g r e a t e r effective a c c o u n t a b i l i t y m i g h t c o m e f r o m : - - h a v i n g a g r e a t e r a v e r a g e n u m b e r o f citizens e n g a g e w i t h t h e details o f a case for a l o n g e r average p e r i o d of t i m e w i t h great p r o c e s s c o n t r o l in c o n f e r e n c e s t h a n in t h e a v e r a g e c o u r t case; - - a u t o m a t i c r e p o r t i n g o f t h e o u t c o m e s o f c o n f e r e n c e s to a p u b l i c l y f u n d e d a d v o c a c y service w h o s e j o b is to b e p r o a c t i v e in advising d e f e n d a n t s o f t h e i r right to a p p e a l to a c o u r t w h e n a c o n f e r e n c e o u t c o m e s e e m s d i s p r o p o r t i o n a t e l y severe. Audio t a p e s could b e k e p t o f all c o n f e r e n c e s a n d m a d e available to the a d v o c a t e s w h o h a d p e r m i s s i o n f r o m the d e f e n d a n t to listen to t h e m . Such a d v o c a c y c o u l d b e a m o r e reliable check o n a b u s e o f p o w e r t h a n the h a p h a z a r d publicity o f criminal trials held in public. Victim a d v o c a c y services also h a v e a n i m p o r t a n t role to p l a y in a well designed s y s t e m of p u b l i c a c c o u n t - ability. At the m o m e n t in Australia a n d New Zealand, I s u s p e c t the strongest check is the right o f t h e d e f e n d a n t to walk o u t o f t h e c o n f e r - e n c e at a n y point, d e m a n d i n g his o r h e r right to h a v e t h e m a t t e r tried in a c o u r t o f law. Research is u n d e r w a y to assess w h e t h e r this s u s p i c i o n is right or wrong. Questions a b o u t w h i c h institutions deliver m o r e effective public a c c o u n t a b i l i t y are u l t i m a t e l y empirical. In a d v a n c e o f t h e o u t c o m e evaluations, t h e y are also m a t t e r s for research a n d d e v e l o p m e n t t h a t innovates with n e w a c c o u n t a b i l i t y m e c h a n i s m s . It is s i m p l y too early to p r o n o u n c e o n w h e t h e r c o n f e r e n c e s do or will o u t p e r f o r m c o u r t in t e r m s o f public accountability. It d o e s s e e m i m p l a u s i b l e t h a t d y a d i c m e d i a t i o n b e t w e e n individual victims a n d individual offenders could do so, given the small n u m b e r o f citizens involved. W h a t is especially interesting in l a n e Dullum's analysis of ' T h e N o r w e g i a n Mediation Boards' is the c o n s i d e r a - t i o n o f t h e d i l e m m a o f w h e t h e r to aspire to h a v i n g restorative justice t r a n s f o r m t h e m a i n s t r e a m c r i m i n a l Special features 9 7 justice s y s t e m or to functioning i n d e p e n d e n t l y of it. My o w n suspi- cion is t h a t unless the social m o v e - m e n t for restorative justice c o m m i t s to the f o r m e r t r a n s f o r m a t i v e agenda, taking o n the m a i n s t r e a m o f the criminal justice system, it will b e forever marginal in its impact. The N o r w e g i a n Mediation Boards Act is an interesting case b e c a u s e (boldly) it m a n d a t e d all municipalities in the c o u n t r y to p u t Mediation Boards in place, effectively in parallel to t h e criminal justice system. In 1995, the Boards m e d i a t e d o n l y 4387 cases ( m a n y n o t criminal), w h i c h c a n only b e a tiny p r o p o r t i o n of t h e cases p r o c e s s e d by the N o r w e g i a n criminal justice system. Anke Z a n d b e r g e n rejoins s o m e o f the t h e m e s in the Walgrave a n d Aertsen article. While Walgrave a n d Aertsen asks w h e t h e r m y ideal s h o u l d b e restorative s h a m i n g r a t h e r t h a n reintegrative s h a m i n g , Z a n d b e r g e n asks w h e t h e r it s h o u l d b e reintegra- tive 'guilting'! At this stage, w h e n so m u c h r e s e a r c h is u n d e r w a y b u t i n c o m p l e t e a r o u n d the world, I would prefer n o t to a n s w e r this q u e s t i o n at a theoretical level. It s e e m s too n e a r to t h e d a y w h e n e m p i r i c a l e v i d e n c e will e n a b l e useful r e f i n e m e n t (rather t h a n a b a n d o n m e n t , I h o p e ) o f the c o n c e p t o f reintegrative s h a m i n g . Z a n d b e r g e n ' s e v a l u a t i o n o f t h e Halt p r o g r a m m e in the N e t h e r l a n d s is o n e o f t h o s e projects. It finds t h a t in a p r o g r a m m e with s u b s t a n t i a l e l e m e n t s of reintegrative s h a m i n g , feelings of guilt are m o r e c o m m o n o u t c o m e s t h a n feelings of s h a m e a m o n g offenders, t h o u g h s h a m e is also a c o m m o n o u t c o m e . In conclusion, the w o r k in this issue shows w h a t a vital tradition r e s t o r a - tive justice is in Europe. T h e r e is a healthy a b s e n c e o f a n y o n e c l a i m i n g they have got a n y m o d e l 'right' or t h a t w h a t s e e m s to w o r k in o n e place will work well in another. T h e r e is curiosity a b o u t the effects o f revising f r a m e w o r k s a n d a c o m m i t m e n t to serious research a n d d e v e l o p m e n t . In time, this will b r i n g us a r i c h e r u n d e r s t a n d i n g of h o w j u s t i c e is d o n e 'in m a n y r o o m s ' (Galanter, 1981). A w a y of f r a m i n g t h e challenge o f restorative justice h e r e is to d e v e l o p practical strategies t h a t t r a n s c e n d tendencies for 'declines in m o r a l i t y ' to b e m a t c h e d by rises in p u n i t i v e law. The a s p i r a t i o n is for f o r m a l law t h a t checks the injustice a n d n u r t u r e s the justice o f i n d i g e n o u s o r d e r i n g in the restorative tradition of m o o r i n g morality; institutions o f restorative ordering t h a t c h e c k t h e injustice a n d enliven the m o r a l i t y of law (Parker, 1997). John Braithwaite Head, Law P r o g r a m Research School o f Social Sciences The Australian N a t i o n a l University C a n b e r r a ACT 0200, Australia References Alder, C . J. Wundersitz (eds.) Family Conferencing and Juvenile Justice: European Journal on Criminal Policy and Research voL 5-1 9 8 The Way Forward or Misplaced Opti- mism? Canberra, Australian Institute of Crimi- nology, 1994 Galanter, M. Justice in many rooms. In: M. Cappelletti (ed.), Access to Justice and the Welfare State Alphen ann den Rijn, Sijthoff, 1981, pp. 147-181 Parker, C Lawyers' Justice, Lawyers" Domination: Regulating the Legal Profession for Access to Justice Unpublished PhD Dissertation, Austra- lian National University, Canberra, 1997 Scheff, T. Microsocio/ogy Chicago, University of Chicago Press, 1990 Wilson, J.q. Crime and public policy. In: J.Q. Wilson, J. Petersilia (eds.), Crime: Twenty-Eight Leading Experts Look at the Most Pressing Problem of our Time San Francisco, ICS Press, 1994, pp. 489- 511 
work_wa773opvufhg3gqvhqueinvef4	----	Dynamic Reflections on Constitutional Justice Beijing Law Review, 2014, 5, 130-139 Published Online June 2014 in SciRes. http://www.scirp.org/journal/blr http://dx.doi.org/10.4236/blr.2014.52012 How to cite this paper: Scarciglia, R. (2014). Dynamic Reflections on Constitutional Justice. Beijing Law Review, 5, 130-139. http://dx.doi.org/10.4236/blr.2014.52012 Dynamic Reflections on Constitutional Justice Roberto Scarciglia Department of Political and Social Sciences, University of Trieste, Trieste, Italy Email: scarcigliar@sp.units.it Received 5 March 2014; revised 2 April 2014; accepted 26 April 2014 Copyright © 2014 by author and Scientific Research Publishing Inc. This work is licensed under the Creative Commons Attribution International License (CC BY). http://creativecommons.org/licenses/by/4.0/ Abstract This article attempts to propose critical reflections on “historical” models of Constitutional Review. The gradual depletion of the simplified classification system of constitutional review has been identified, by some scholars, as a failure of the bipolar American-European model. This means that it is necessary to rethink the approach to analysing constitutional review, in light of legal tradi- tions, positive law within legal systems, and comparative methodologies. Consequently, judicial review could be studied according to the internal perspectives of the Supreme and Constitutional Courts’ decision-making processes, rather than externally observable legal characteristics. As of recently, legal studies have been converging with other sciences, such as cognitive science. They have been considering the relationship between consciousness and comparison, and even the field of cognitive errors in judgment, and the development of decisions taken by Courts. Keywords Constitutional Justice, Judicial Opinions, Neuroscience and Law 1. Introduction The control of the constitutionality of laws is one of the topics discussed in the lectures of comparative constitu- tional law. Overtime, we have seen a gradual depletion of the simplified system of constitutional reviews. The failure of the American-European bipolarity has highlighted a need to rethink the description of Constitutional Justice Systems, in light of positive laws within different systems and methodologies (Fernández Segado, 2004: p. 1108). In this regard, reference could be made to the overcoming of “historical patterns”, in order to show how far models used in teaching and research are inadequate, for a number of reasons detailed below. Main- stream studies on Constitutional Justice tend to primarily identify key factors in the two known historical models subjected to classification according to constitutional doctrine. Despite being undoubtedly useful for compara- http://www.scirp.org/journal/blr http://dx.doi.org/10.4236/blr.2014.52012 http://dx.doi.org/10.4236/blr.2014.52012 http://www.scirp.org/ mailto:scarcigliar@sp.units.it http://creativecommons.org/licenses/by/4.0/ R. Scarciglia 131 tive analysis, these elements do not allow the determination of which of these key factors prevail within each constitutional experience. Said factors, which are known as “formants”1, compose and decompose each other, determine the prevalence and influence of a solution adopted by a constitutional court, as well as the manner in which to communicate to the outside world the “strength” of said decision. The “game” of legal formants tends to identify models with heterogeneous characteristics. These are more related to cultural and legal traditions of the respective constitutional system, than to insignificant differences within limited classificatory hypotheses (Harlow, 2002: p. 339). Subsequently, and according to a well-known expression by the American jurist Henry Wigmore, we can talk about the “kaleidoscope” of constitutional justice, to indicate all those factors that can be composed and decomposed, producing different results from a dynamic perspective (Wigmore, 1941). The ka- leidoscope of justice contains a table where we can see some of the figures that the rotations of a prism—in fact, that of a kaleidoscope—can be produced starting from common elements. Wigmore had already observed, in A Panorama of the World’s Legal System, the importance of images in the knowledge of the law. Against this background, we support the hypothesis that each model of constitutional justice is different from one another, although two models can describe common characters with American and European historic mod- els. It is the combination of some factors to determine the models—“unique models”—, which could have the name from each State (French, Portuguese) or the geographic area of its origin (Nordic, African, etc.). Between the two sets A and B it is possible to identify an element—in this case, a rule or a procedure or a legal formant that is common to both sets—, which could form part of an intersection of two sets (I = A ∩ B), and which may contain other elements common to A and B. However, according to Rodolfo Sacco, we cannot found, within a legal system, a criterion to determine which is the reciprocal position of legal formants, their consistency of op- position and, therefore, the reasons for their prevalence (Sacco, 2007: p. 119). With regard to unconscious in- sights, Oliver Wendell Holmes emphasizes “mute” elements, invisible factors that can influence a judge’s deci- sion (Holmes Jr., 1897: p. 457). In the first part of the paper, I will deal with the determinants and variables of the models of constitutional review, and how the factors which are characteristic of a constitutional justice sys- tem compose and recompose themselves, producing different results from a dynamic point of view. The second part of this short essay is dedicated to finding a different approach to the traditional point of view which characterizes constitutional justice. This study could not have been carried out in terms of the externally observable legal characteristics, but rather, from the point of view of the Supreme and Constitutional Courts’ in- ternal decision-making processes. As of recently, legal studies have converged with scan paths typical of other sciences, including cognitive science. For example, one might consider the relationship between consciousness and comparison, the issue of cognitive errors in judgment, the nature of a court’s decisions, or, even, the means to communicate deliberative procedures. In this regard, we can make reference to “cryptotypes”, non-verbalized formants that do not belong to the category of positive law. Could these non-verbalized formants influence a judge’s decision? This question implies answering many problems that have been studied, or developed in inter- disciplinary researches, by several judges of Supreme and Constitutional Courts. These problems may be in- cluded in the expression “Law and Brain”, used to encompass the study of legal phenomena in light of cognitive science. It is clear that this is a way to simplify a varied and complex set of phenomena. This perspective could become necessary to outline the new frontiers of comparative law, as Rodolfo Sacco points out in his Antropo- logia giuridica (Sacco, 2007). Thus, if examined from a different point of view, the deliberative process followed by Supreme and Constitu- tional Courts suggests a number of questions, such as: how do judges of Supreme and Constitutional Courts think? How do judges take their decisions? How do Courts communicate? From a methodological point of view, together with the theory of legal formants by Rodolfo Sacco and the rules which Costantinesco introduced for obtaining an understanding of the comparative method (Constantinesco, 1972: p. 161), one can highlight how methods of interpretation are always those belonging to the place where a court interprets the Constitution. This depends on a set of Constitutional factors—such as the type of state or government, extra-constitutional fac- tors—such as cultural and legal traditions, or political, social, economic and religious factors (Fernández Segado, 2004: p. 1108). In this regard, one can recall the books by Patrick Glenn, Legal Traditions of the World (Glenn, 1The term “formant” is used in phonetics to define the acoustic spectrum of a vowel sound. It is a well-known legal concept in comparative law which indicates the set of rules and propositions of law that are the basis for the solution of a problem or the discipline of an institution or a legal phenomenon in a system at a legal and historical moment: see Sacco, R. (1974), Les buts et les méthodes de la comparaison du droit, IX Congrès International de Droit Comparé, Milano: Giuffrè, 119. The theory of formants is wide-spread among comparatists in common law largely due to the English translation of the study in question: see Sacco R. (1991), Legal Formants: A Dynamic Approach to Comparative Law, American Journal Comparative Law instal 1, 1, and instal 2, 343. R. Scarciglia 132 2007) and Werner Menski, Comparative Law in a Global Context (Menski, 2007) which opened entirely dif- ferent perspectives for studies focusing on the dichotomy between civil and common law. However, with re- gards to the initial problem, one can see how the classification of constitutional law is made by comparatists, does not seem to always take into account the above-mentioned factors and theories regarding determinative elements and legal formants. 2. Determinants and Variables Firstly, let us go over the concept of determinant or primary element, defined as “simple parts of a chair” in Wittgenstein’s Philosophical Investigations (Wittgenstein, 1953: p. 34). This concept could be useful in the identification of differing patterns or experiences in relation to the legal and cultural tradition within a constitu- tional system, rather than limited by classification schemes. Thus, considering that, though with significant dif- ferences, almost every country in the world has at some point instituted a judge to take decisions regarding the constitutionality of laws, what can be considered as essential elements in the kaleidoscope of constitutional re- view? With regards to the “kaleidoscope of justice”, designed in 1941 by Henry Wigmore, one can observe a variety of images (Europe, Asia, America, Africa, Oceania, the Ancient World and a basic model) (Wigmore, 1941). Each one of them is composed by two invariant figures, the kite and the arrow2. This example can turn out useful to look for within a system of constitutional justice elements that do not vary structurally in the time. The first invariable one is without a doubt the presence of an organ (o) that exerts the constitutionality control, whether is an ad hoc court or an organ of the jurisdiction (or its specific section) placed in the peak of the system of the justice of a country (for instance a Supreme court). On this necessary element some variables can be added: a) the chronological moment of control (c), which could be preventive (c1) or suc- cessive (c2), according to whether it is exerted before the normative act is approved definitively by the legisla- tive organ, or after the implementation of the act; b) the control’s abstractness (a) or concreteness (a1), depend- ing on whether it is carried out without a judge’s guidance, or roots in a judicial procedure in which the judge must apply legal norms in the actual case or controversy; c) admittance procedures to constitutional justice (p): these vary according to whether they can be directly (p1) or indirectly (p2) admitted; d) the modalities of ap- pointment or designation of judges (n) —which can be determined by a major or minor dependency on political power, and the composition of the court (t) (t3, t4, t5, t7, t8, …. tⁿ); and, finally, e) the duration of appointment (d), which can be limited in time (d3, d4, d5, […] d7, t8,…. dⁿ), or be for life (dx), such as in the United States. An- other invariable is the judgement that the constitutional judge passes (J). In this regard, there is a difference, as, for example, in the Italian experience, between judgments and orders. Orders are procedural decisions and can- not close a case. Judgments, on the other hand, can be: a) of acceptance (j1) or of dismissal (j2), meaning that the Court either: accepts, even if only partially, the petition of unconstitutionality; or, dismisses the claim.The deci- sion between a judgment of admittance and one of dismissal can be considered as lacking in the identification of a system of constitutional review. Constitutional Courts introduced new types of judgment (i.e. additive, inter- pretative—of acceptance or of dismissal—, manipulative, substitutive, etc.), in the implementation of instru- ments of constitutional justice: b) typical (t) or atypical (t − x, t + x), according to whether the judgment can be included in a previous pattern; c) the parties bound by a judgment (b), by the difference between a centralized (b1) or widespread (b2) model of constitutional review. All of the above mentioned variables are of significant value. It is up to those who will interpret them, to analyze these variables in different legal systems, and com- pare them to different foreign rules, through the use of interpretive criteria and procedures. There is no greater mistake than a legal interpretation of a foreign law through the eyes of a “conservative lawyer”, as this may lead to significant errors, such as those made by Law ethnologists when studying the institutions of ancient popula- tions through contemporary eyes. The letters that identify determinant elements (O, J), and variables (c, c1, c2, a, a1, p, p1, p2, t, t3, t4, t5, t7, t8, …. tⁿ, d, d3, d4, d5, […] d7, t8,…. dⁿ, dx, etc.), may encourage one to use them in a geographic map or atlas of comparative constitutional law, as in Wigmore’s Panorama of the World’s Legal Systems (Wigmore, 1936). With regards to the mathematical theory of sets, a brief remark should be made. Each set, which could be equivalent to a foreign experience of constitutional review, can contain variables and deter- minant elements that could bring about the convergence of two or more sets. This does not exclude, however, that one or more legal systems may not contain (or only marginally contain) common elements: sets have dif- ferent characteristics, as opposed to the well-known classification schemes. 2The kite and the arrow also inspired the creation of the British mathematician, Penrose, known as “Penrose tiling”. R. Scarciglia 133 3. Inadequacy of “Historic Models” The term “model” implies by itself and the idea of classification, of a synthesis of the complexity through logi- cal categories. The classification implies the definition by categories (or classes) of the objects of analysis, through the detection of peculiar traits of all the objects that can be traced back to that class. Although the idea of defining models and classification schemes represents a constant in several papers, no doubt, it does not seem likely apart from an assessment of the ability of these models to understand and reproduce the phenomenon which we believe, and, above all, implement it effectively in a concrete experience (Badiou, 1969). The origi- nally developed models of constitutionality—the “American” of judicial review, and the “European”, created by Hans Kelsen—summarize of the main issues in the field of Constitutional justice (Tusseau, 2009: 17). Without a doubt, the usual descriptions seem to be limited when we switch from the perspective of the classificatory hy- pothesis to a methodological approach that characterizes a valid comparison. The presence of some considerable classifications and models—arisen in the shade from both more well-known and traditional icons of constitu- tional judicial review—, it is particularly useful for the study of the activity of the judge of the laws and forms a dogmatic basis for the overcoming of the traditional typologies and the classification of others which we cannot be considered within the American or European model. Nevertheless, the typical and determinant elements of the “bipolar” model do not allow using its conceptual schemes like classification instruments and the doctrine tried to outline new models, through the “hybridisation” of these historic models. The factors which are characteristic of a Constitutional justice system—like pieces of a kaleidoscope—com- pose and recompose themselves, producing different results from a dynamic point of view. The common ma- trices establish themselves according to individual and changing directions, sometimes oriented towards the de- fense of fundamental freedoms, sometimes to the balance of power, and the different organs of the State, high- lighting the difficulties for comparatist to describe a system of Constitutional justice in accordance with theoret- ical categories. The common matrices establish themselves according to individual and changing directions, sometimes oriented towards the defense of fundamental freedoms, sometimes to the balance of power, and the different organs of the State, highlighting the difficulties for a comparativist to describe a system of constitu- tional justice in accordance with theoretical categories. The reduction of these models can be taken into account for various reasons. The presence of common ele- ments, or a theoretical creation of macro-models of Constitutional review, does not exclude the existence of some unique models. In spite of a standardization of the functions of the organs of Constitutional justice, we cannot except that the combination of different factors brings about incomparable models. Otherwise, the prob- lem of finding the determinants is typical of all empiricalscience. As Quine argues, although with reference to linguistic forms, not at all two situations are quite similar: He argues: “The only difference between rabbits, un- detached rabbit parts, and rabbit stages is in their individuation. If you take the total scattered portion of the spa- tiotemporal world that is made up of the rabbits, and that which is made up of undetached rabbit parts, and that which is made up of rabbit stages, you come out with the same scattered portion of the world each of the three times. The only difference is in how you slice it” (Quine, 1969: 32). From this point of view, it is necessary, on the one hand, grasp similarities in material aspects and, on the other, do not lose sight of the basic constituent parts that make up an object (of study) (Quine, 1953: 82). The procedure of decomposition of formants is a complex operation and not used by the legal practitioner who is unaccustomed to comparison. Formants have a tendency to combine as well as to de-compose within a certain law. This decomposition happens synchronically and it is up to the comparatist to assert whether these disassociations happen in a predictable and rationally explainable way. With reference to the doctrine of Public Law, it was noted that the components of the legal system are not on the same level (F ≠ F1, F1 ≠ F2), resulting in one being elevated to “the category of comparison”, and given prevalence (F > F1, F1 > F2). A system of consti- tutional justice represents a subsystem in the context of the legal system of a certain country, analogous to which it happens in the theory of the sets between “set” and “element”. If the system of constitutional justice z—ele- ment z belongs to Country Z—the joint z (z ∈ Z), that does not mean that the elements of the system of Consti- tutional justice of Country A (g, g1, g2)—that belong evidently to Country A (g, g1, g2 ∈ A)—would have to be equal or equivalent to those of Country Z ({g, g1, g2} = {z, z1, z2}). It is more probable that only some of these elements agree and must be, in each case, interpreted according to the interpretative method of the own legal system. We point out that each legal system can own valid contents in other legal systems. For instance, in con- nection with the Constitutional review, if a system Y integrates statements x1 and x2, coming from system X, R. Scarciglia 134 and statements z1 and z2, coming from system Z, those same statements (x1, x2, z1 and z2), are valid insofar as xs1, xs2, z have been integrated in the system Y. Until this integration does not take place, the statements x1, x2, z1 and z2 do not belong to the set Y, and they are not valid. Afterwards, these elements may be part of the set Y (x1, x2 Є Y) if the same elements turn into rules of the legal system in which the elements can integrate. The rules of this integration can show a high level of complexity. That points out that some elements or (legal) for- mants, in its process of composition or decomposition, can bring about a unique result, like after the rotation of a kaleidoscope. If we consider a number of determinant elements or verbalized (or not verbalized) legal formants existing within a legal system, it seems more consistent to refer to different systems of Constitutional review (e.g. Belgian system of Constitutional justice) or to specific geographical areas (e.g. North America). From this point of view, our analysis could be better than to include this experience in a “turnkey system”. Moreover, an analysis carried out ab externo does not allow evaluating which are the deliberative paths for a definition of judgment. Above all, this analysis cannot pick out the presence or role of extralegal factors in the decision of a Court or a judge (decision-making strategies of individuals). Thus, the study of comparative constitutional jus- tice is carried out, principally, from point of view of legal characteristics outside the observable, through the study of the decisions of the Constitutional or Supreme Courts. We have to point out that some studies coming from other sciences—including cognitive—give essential elements for analyzing the internal deliberative pro- cess by the Courts. In the recent years, the field of the relationship between the law—and, particularly, compara- tive law—and other sciences is growing. This tendency increases some cognitive approaches—law in mind— which aim to overcome the traditional dichotomy between “law in the books” and “law in action” (Chorvat & Mc Gabe, 2004: 1733). The objective is not so much knowledge of the law in the books or of the law in action as much as research with its inherent limits of the law in minds of legal systems (Ewald, 1998: 704) that, some- times allow knowledge that each legal decree is unique and that within it models develop which are unique (Ainsworth, 1996: 28). The same is true for words, whose meanings, according to Croce’s aesthetic, assume a unique meaning which is linked to the historical and semantic context where the terms are used. These ap- proaches take into account some late researches about the field of cognitive neuroscience. 4. Usefulness of Cognitive Science on the Law Frequently, cognitive neuroscience deals with phenomena in connection with the law (Garland, 2004; Zeki & Good enough, 2006; Frankel & Garland, 2012). Paths of scientific collaboration with legal scholars are active in many fields, such as process, the evaluation of errors of judges and criminal liability. From this point of view, the relationship between neuroscience and law tends to investigate whether the rational choices—with which the courts make their decisions—are influenced by different factors such as, for example, attention, memory, emo- tion, intuition or moral judgment. These studies are only at an early stage and, accordingly, these reflections have the original intent to induce the attention, as an interdisciplinary field of study, rather than reveal feasible coordinates. Considering the average posting of lawyers for the hard sciences, Erin Ann O’Hara has identified the categories of lawyers who could feel it (O’Hara, 2006: 25). One could think there should be between these include also the comparatist for the necessary traits of contiguity with the other sciences. In the Introduction to 2006’s Law and the Brain, Lord Bingham emphasized that a decision can be driven both by reason and emotion, or other factors that may affect them, according to The Path of Law written by the Justice Oliver Wendell Holmes, Jr. and published in Harvard Law Review. Although the writings of Holmes are always present in the debate between the normative and American realist schools, they, however, represent one of the landmarks of the scholars who are concerned with the relationship between neuroscience and the law. Everyone could remember the theory expressed in The Common Law, 1881, according to which “the life of the law is experience, not logic” (Holmes Jr., 1881). It also reminds us that different factors—such as the shared needs of the time such as the shared needs of the time, the prevalent moral and political theories, the known or tacit political intuitions or the prejudices which judges share with others—contribute to a greater extent in de- termining the rules of government than the syllogism. The mentioned thought of Holmes has points in common with the subsequent studies on unexpressed knowledge, required to the comparative science. In this respect, be- fore briefly examine the cognitive factors that may affect the choice of a judge—and, therefore, errors, particu- larly coherent order, in the decision—it may be able to recall the concept of value due to different legal formants. Holmes points out the “unknown” or “mute” formants with reference to the insights and unconscious, therefore, unobserved factors that can affect the judge’s decision. However, according to Rodolfo Sacco, it is not possible R. Scarciglia 135 to identify a criterion, within a legal system, which determines the position of the formants, their coherence in opposition or the reasons for this prevalence. 5. Toward New Frontiers: How Do Judges of Constitutional and Supreme Courts Their Decisions? We acknowledge that this current of studies is still at its early stages, however we believe that for overview pur- poses, it can be useful to consider the approach put forward so far, by scholars from supreme and constitutional courts. A previously mentioned example is that of How judges think, by Richard Posner, whence I drew my main remarks (Posner, 2008: 66). Valuable observations are also provided by other watchful scholars looking into how judges speak, namely Basil Markesinis and Jörg Fedtke (Markesinis & Fedtke, 2006: 173). Moreover I believe useful recalling some concepts referred to in the first part of this essay, among others, Michael Po- lanyi’s “tacit knowledge”, and thus the tacit dimension of comparison (Polanyi, 1966). Accordingly with the Hungarian philosopher, the accent should go on those latent elements of the judicature that are not immediately detectable—and often can neither be directly integrated—which are inherent to the interpretative and delibera- tive processes of supreme courts. However these elements do not always result from analyses, motivations, or even from the very own courts’ jurisprudential classifications. This, for instance, could make the considerations on the grounds for the decision seem superfluous, as these represent only the final outcome of a more complex process. From this perspective, it can be interesting to study the modalities by which judges of supreme and constitutional courts take their decisions, within the deliberative process, which still today, is a scarcely studied topic by scholars of the so-called deliberative democracy, despite these courts being considered deliberative institutions. Further classifications were also conducted in relation to the object of the investigation, from the standpoint of those plaintiffs entitled to bring an action before the courts, to the collegiality’s proceedings methods. The latter profile raised some interest for what concerns the topic of decision-making according to seriatim procedures as well as for decision-making expressing a position of majority or minority, and for when the court is considered a collective subject. These diverse perspectives of analysis, which now cannot be extensively discussed, do how- ever cast a light on scholars’ interest on the broad topic addressing the process, the modality and the factors by which courts take their decisions. One could observe that different factors can or help to determine the decision of a judge. Besides personal factors, Posner describes five “phenomena” which can be included in this question: a) conscious falsification; b) precedents determined by experience, temperament, ideology and other extra-legal personal factors; c) cognitive illusions; d) precedents determined by irrelevant reactions; e) distortion of facts to limit the probabilities of be- ing overturned. As far as conscious falsification is concerned, this is a residual hypothesis, whereby we consider the imparti- ality of judges when performing their duty, a constitutional principle as stated by founding documents and by the law. However, if for instance, the judge were to have been corrupted, the incidence of such behaviour on the final decision would be obvious: the judge would have indeed consciously followed the “rule of the bandit”— de-formant—falsifying the essence of the grounds for the decision, without, maybe, leaving any trace unless a further trial were to unveil the falsification itself. For the second hypothesis, Posner takes into consideration the precedents determined by experience, tem- perament, ideology and other extra-legal personal factors. Going back to what was said regarding legal for- mants; for these factors too, it is difficult to defining a priori what would be their mutual position, their coher- ence of objection and whether they would prevail. Certainly for a comparativist, these factors and their use in foreign legal systems, immediately bring to mind the scarcely investigated topic of judges’ mentality (Markesi- nis & Fedtke, 2006: 173). As mere example, one could think back at the behaviour of the judge who refused to include ideas from a foreign country during the decision-making process, as it happened with judge Scalia for the sentence of the American Supreme Court for Roper v Simmons in 2005. According to Markesinis, mentality is “an inhibiting factor, or the most important factor, within the use of comparativism”, but more in general, he states that “the role played by mentality has not been appropriately studied, and as a result its importance has been underestimated” (Markesinis & Fedtke, 2006: 174). As observed by the judge of the Supreme Court Felix Frankfurter, a man [or a woman] “when sitting in the Supreme Court takes with him his entire experience, training and prospects as well as personal social, intellectual and cultural R. Scarciglia 136 backgrounds”. Personal factors could determine the so-called puzzling effect in the jurisprudential procedure, however this cannot be ascribed solely to these components but to the contribution of a number of factors. Nonetheless, according to Markesins the possibility for a connection “in a definitive way between sentences and individual personality traits” (Markesinis & Fedtke, 2006: 174) should be ruled out, together with the feasibility for a study of these factors, starting from the professional training of judges. The third factor is given by the so-called cognitive illusions. These derive from a mistaken perception of real- ity. For instance, when observing any given object, it could happen that some of its parts may not be perceived by the observer. Indeed, even if he/she were to see them, on a perception level, these parts could suddenly stand out, or not stand out, limiting perception itself. An example is provided by the renowned image of Jastrow, also used by Wittgenstein, where looking from the right one sees the head of a hare, whereas looking from the left one sees the head of a duck and there are many other examples of this sort. Moreover a judge can make such mistakes when in peculiar conditions, provoking cognitive illusions (Guthrie, Rachlinski, & Wistrich, 2001: 7) by repeating such errors, and the same may happen to juries during trials (Markesinis & Fedtke, 2006: 174). In the aforementioned essay Inside the Judicial Mind, the analysis focuses on which mechanisms can be useful to minimize the effect of cognitive illusions, as for example the so-called Hindsight Bias, which is the error com- mitted in a retrospective judgement. A further hypothesis which is also to be considered residual, as it is not very frequent in a Supreme Court’s decisions, is that of precedents determined by irrelevant reactions, as could happen if a decision were to be de- termined, for instance, by a personal dislike for a conduct of life or even for the disapproval of a religious party. The reason for the narrowness of this hypothesis lays in the fact that similarly to the aforementioned case a), the deliberate falsification of facts is not common, and in general, a judge should not be involved with disputes in- volving parties, religions and any other kind of association. The last hypothesis put forward by Posner is that of the distortion of facts to limit the probabilities of being overturned, wherefore according to Bayes’ theory of decision the main feature of the decision is that of leaving the precedent unaltered. In these hypotheses the pre-formation of the judge’s opinion, developed for previous cases—and thus already formed at an unconscious level—determines with high probability that the judge will not modify the precedent, even with the acquisition of new information, according to the equation Ω(H\x) = p(x\H)/p(x\H) × Ω(H) (Posner, 2008: 66), whereby Bayes proves how, despite the acquisition of new informa- tion, the probabilities (of modifying the precedent) do not change. 6. The Judge as “Occasional Legislator” The expression “occasional legislator” comes from the book of Richard Posner, How Judges Think (Posner, 2008: 66), and it indicates the intention—expressed in the Swiss Civil Code—, according to which “were the law is silent or unclear the judge must decide the case as if he were a legislator”. As we point out, in some legal systems (European or Latin American systems) the courts increased the number of instruments for exercising constitutional review. As an example, the court can “manipulate” the contents of the law which is the subject of the Constitutional Court’s judgment, transforming its original meaning (e.g. in the “substitute judgments”). The courts can manipulate normative texts, not only judging the dispositions (that is the semantic statements con- tained in a text), but the norms (the meaning derived by interpretative route of the statements) and, consequently, not only annulling, but also modifying the opposed dispositions to ensure the conformity the deductible norms of them to the constitutional parameters. The use of manipulative techniques tends to affect the discretion of the legislator in law-making and, therefore, a part of the constitutional doctrine calls into question its admissibility. It could turn out useful better explain the purpose of the “substitute judgments”—judgments which include a new, literal, text in substitution of a part of the text of a law—by a constitutional court, if we use the concept of Kelsen’s “interference”. This concept expresses the qualification (Ermäcthigung) that a legal system attributes to a constitutional organ for the production of legal norms, also determining its conditions of validity. The interferences can be distinguished into two types: compulsory or not (Behrendt, 2006: 126). The interfer- ence (I) constitutes a kind of qualification (Q)—which could affect so either the legislator (QL) or a constitu- tional court (QCC)—for the production of a certain type of norms (N) and, particularly, legal norms (LN). The interference can be expressed as a formula in the following way: I = Q → LN. The interference could affect a constitutional (or a supreme) court, if the same court introduces necessary and sufficient conditions (C1, C2, C3, … Cn) for the validity of the norms that can be produced by virtue of the qualification. We can express it as R. Scarciglia 137 a formula in the following way: QL (C1, C2, C3, … Cn) → LN = (QCC) (C1, C2, C3, … Cn) → NL. According to the pattern by Behrendt, the constitutional court could allow for different possible conditions, in the sense that the validity of the norm cannot already set down with respect to a necessary condition (C1, C2, C3, … Cn), but, on the contrary, it has caused by a choice between two alternatives (e.g. C2a v. C2b). This alternative can be expressed by this formula: Q (C1, C2a v. C2b, C3, … Cn) → LN. In the event that there are necessary condi- tions, we are in the presence of a certain interference; on the contrary, we can speak of an alternative interfer- ence if we are in the presence of two or more alternatives. By means of the use of manipulative techniques, the judge tends to affect the choice of the legislator, consid- ering itself “qualified” for the creation of a norm, even “through other channels, not always immediately appar- ent in all their growth and consistency”: it happens in the hypothesis of a masked violation of a Constitutional parameter or a substantial rewrite of the letter of the Constitution, through the terms of the grounds in the ruling of the Court. Against the observation that the Constitutional judge could in this way encroach upon the jurisdic- tion which the Constitution reserves for the legislator, it would be possible to object that the Constitution attrib- utes to the constitutional organs the power of amendment, for example, by a new legislative measures. 7. How Do Courts Communicate? How do constitutional and supreme courts communicate? This question regards the way in which judges convey their views and opinions to citizens and to other constitutional bodies, and it may well contribute comparative takes to the current debate concerning divulged opinions on the one hand, and secrecy within courts on the other (Cassese, 2013). Resuming the discourse on the factors that affect a judge’s decision at the cognitive level, one can observe how the disclosing of the opinions also includes subjective elements, which, together with other factors, contribute to a judge’s grounds for the decision. Sabino Cassese, in reference to the so-called dissenting opinion, asked himself whether “one of the variables to be taken into account, in order to assess the introduction of dissent, might be the extent of social adhesion to constitutional values and the degree of the rift within the public opinion”. The latter approach is important when considering the relation between courts when it comes to the not nec- essarily oracular communication with other constitutional bodies. Also in the case of the so-called oral dissent- ing, with which the Justices of the US Supreme Court promulgate verbally an opinion contrary to a majority de- cision of the Court, one can identify several factors which contribute to its induction, according to the analysis put forward by Schmidt and Shapiro (Schmidt & Shapiro, 2010: 75): a) personal angst towards the Court (Gold Clause Case—Justice McReynolds, 1935); b) publicity of own decisions (Gold Clause Case—Justice McRey- nolds, 1935); c) public appeal to citizens (Pollock Case—Justice Arlan, 1895); d) commitment to the Constitu- tion (Gold Clause Case—Justice McReynolds, 1935); e) the so-called demosprudence, i.e. popular education; f) appeal to the elites; g) democratic responsibility. Concerning the term demosprudence (with reference to demosprudential oral dissent), coined by Lani Guiner and Gerald Torres (Guiner, 2008: 4; Torres, 2007: 135), we may tautly emphasize that the main manifest func- tion of dissent appears to be that of re-orienting public opinion: a pedagogical function that, as regarded by Jus- tice Kennedy, portrays judges as teachers who, through their opinions, educate. Nevertheless, at an operational level we may consider US citizens quite unaware of the Supreme Court’s activity; for instance, citizens inter- viewed at the time had little or no knowledge, despite the significance of the issue, of the Roe vs. Wade case examined by the Court in 1973, regarding abortion during the first three weeks of pregnancy. Hence, the idea that US citizens may be informed through oral dissenting is likely to be purely wishful thinking. Also in this perspective, at the cognitive level it should be appreciated how the study of the cultural background and profes- sional training of a judge may contribute to this point in question, as well as the judge’s own decision within the court, and whether he may have been influenced by, or might have in turn influenced, the decision or the college itself. Consequently, as pointed out by Cassese, it is “the way in which the will of the court is established that influences the structure of the decision, and therefore also the way in which the judge’s opinion is presented” (Cassese, 2013). 8. Conclusion Comparing the shaping of the supreme and constitutional courts’ will well be an increasingly attractive perspec- tive with regards to the traditional classification of historical models of constitutional justice. The gradual de- R. Scarciglia 138 pletion of this classification system has been identified, by some scholars, as a failure of the bipolar American- European model. Each model of constitutional justice is different from one another, although two models can describe common characters with American and European historic models. This means that we can rethink the approach to analysing constitutional review, in light of legal traditions, positive law within legal systems, and comparative methodologies. Consequently, judicial review could be studied according to the internal perspec- tives of the Supreme and Constitutional Courts’ decision-making processes, rather than externally observable legal characteristics. We should go on those latent elements of the judgements that are not immediately detect- able—and often can neither be directly integrated—which are inherent to the interpretative and deliberative processes of supreme courts. However these elements do not always result from analyses, motivations, or even from the very own courts’ jurisprudential classifications. As of recently, legal studies have been converging with other sciences, such as cognitive science. They have been considering the relationship between consciousness and comparison, and even the field of cognitive errors in judgement, and the development of decisions taken by Courts. This, together with cognitive sciences, may aid us to progressively identify with increasing clarity the differences in cultural and legal traditions, as well as the uniqueness of said models. The above being a de iure condendo reflection, we should just hope that the establishment of a new cognitive approach to the subject of constitutional justice will find more benevolent interlocutors. References Ainsworth, I. E. (1996). Categories and Culture: On the “Rectification of Names” in Comparative Law. Cornell Law Revue, 82, 28. Badiou, A. (1969). Le concept de modèle. Introduction à une épistemologie matérialiste des mathématiques. Paris: Fayard. Behrendt, C. (2006). Le juge constitutionnel, un législateur-cadre positif. Bruxelles: 126. Cassese, S. (2013). Lezione sulla cosiddetta opinione dissenziente. 1-17. www.cortecostituzionale.it/documenti/convegni_seminari/Opinione_dissenziente_Cassese.pdf Chorvat, T., & Mc Gabe, K. (2004). The Brain and the Law. 359 Philosophical Transactions of the Royal Society, 1733. Constantinesco, L.-J. (1972). Il metodo comparativo. Torino: Giappichelli, It. tr, 2000, 161. Ewald, W. (1998). The Jurisprudencial Approach to Comparative Law: A Field Guide to Rats. 46 American Journal of Comparative Law, 704. Fernández Segado, F. (2004). La faillite de la bipolarité “modèle américain-modèle européen” en tant que critère analytique du contrôle de la constitutionnalité et la recherche d’une nouvelle typologie explicative. In Mélanges en l’honneur de Franck Moderne (p. 1108). Paris: Dalloz. Glenn, H. P. (2007). Legal Traditions of the World: Sustainable Diversity in Law (3rd ed.). Oxford: OUP. Guiner L. (2008). Foreword: Demosprudence through Dissent. Harvard Law Review, 22, 4. Guthrie, C., Rachlinski, J. J., & Wistrich, A. J. (2001). Inside the Judicial Mind. Cornell Law Review, 86, 778. Harlow, C. (2002). Voice of Difference in a Plural Community. American Journal of Comparative Law, 2, 339-367. http://dx.doi.org/10.2307/840824 Holmes Jr., W. O. (1881). The Common Law. Boston, Mass: Little, Brown. Holmes Jr., W. O. (1897). The Path of Law. Harvard Law Review, 10, 457. Markesinis, B., & Fedtke, J. (2006). Judicial Recourse to Foreign Law: A New Source of Inspiration. New York: Routledge, 173. Menski, W. (2006). Comparative Law in a Global Context; The legal Systems of Asia and Africa (2nd ed.). Cambridge: CUP. http://dx.doi.org/10.1017/CBO9780511606687 O’Hara, E. A. (2006). How Neuroscience Might Advance the Law. In S. Zeki, & O. Goodenough (Eds.), Law and the Brain (p. 25). Oxford: OUP. Polanyi, M. (1966). The Tacit Dimension. New York: Anchor Book. Posner, R. A. (2008). How Judges Think. Cambridge, MA: Harvard University Press. Quine, W. O. (1969). Ontological Relativity & Other Essays. New York: Columbia University Press, 32. Quine, W. O. (1953). From a Logical Point of View: Nine Logico-Philosophical Essays. Cambridge, MA: Harvard Universi- ty Press, 82. Sacco, R. (2007). Antropologia giuridica: Contributo a una macrostoria del diritto (Legal Anthropology: A Contribution to http://www.cortecostituzionale.it/documenti/convegni_seminari/Opinione_dissenziente_Cassese.pdf http://dx.doi.org/10.2307/840824 http://dx.doi.org/10.1017/CBO9780511606687 R. Scarciglia 139 the Macro-History of Law). Bologna: Il Mulino. Schmidt, C. W., & Shapiro, C. (2010). Oral dissenting in Supreme Court. William & Mary Bill of Rights, 19, 75. Torres, G. (2007). Legal Change: The Eighty-Third Cleveland-Marshall Fund Visiting Scholar Lecture. Cleveland St. Law Review, 55, 135. Tusseau, G. (2009). Contre les “modèles” de justice constitutionnelle: Essai de critique méthodologique. Bologna: Bononia University Press, 17. Wigmore, J. H. (1941). A Kaleidoscope of Justice Containing Authentic Accounts of Trial Scenes from All Times and Climes. Washington DC: Washington Law Books. Wigmore, J. H. (1936). Panorama of the World’s Legal Systems. Washington DC: Washington Law Books. Wittgenstein, L. (1953). Philosophische Untersuchungen . Oxford: Basil Blackwell, 34. Scientific Research Publishing (SCIRP) is one of the largest Open Access journal publishers. It is currently publishing more than 200 open access, online, peer-reviewed journals covering a wide range of academic disciplines. SCIRP serves the worldwide academic communities and contributes to the progress and application of science with its publication. Other selected journals from SCIRP are listed as below. Submit your manuscript to us via either submit@scirp.org or Online Submission Portal. mailto:submit@scirp.org http://papersubmission.scirp.org/paper/showAddPaper?journalID=478&utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/ABB?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/AM?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/AJPS?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/CE?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/ENG?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/Health?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/JCC?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/JMP?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/JEP?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/AS?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/FNS?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/PSYCH?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/NS?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/ME?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/JCT?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper http://www.scirp.org/journal/AJAC?utm_source=pdfpaper&utm_campaign=papersubmission&utm_medium=pdfpaper Dynamic Reflections on Constitutional Justice Abstract Keywords 1. Introduction 2. Determinants and Variables 3. Inadequacy of “Historic Models” 4. Usefulness of Cognitive Science on the Law 5. Toward New Frontiers: How Do Judges of Constitutional and Supreme CourtsTheir Decisions? 6. The Judge as “Occasional Legislator” 7. How Do Courts Communicate? 8. Conclusion References 
work_wcbrklfzfba3xgjfgcasbyns24	----	Desistance from crime and restorative justice This is a repository copy of Desistance from crime and restorative justice. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/107158/ Version: Accepted Version Article: Claes, B. and Shapland, J.M. (2017) Desistance from crime and restorative justice. Restorative Justice, 4 (3). pp. 302-322. ISSN 2050-473X https://doi.org/10.1080/20504721.2016.1245912 eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ 1 Desistance from crime and restorative justice Bart Claes and Joanna Shapland (University of Sheffield) Article for special issue of the International Journal of Restorative Justice Acknowledgements We would like to thank our colleagues at the Centre for Criminological Research, University of Sheffield, for the discussions we have been able to have which have contributed towards developing theoretical material related to this article, and in particular, Anthony Bottoms, Stephen Farrall and Gwen Robinson. Bart Claes’ work was supported by a EU Marie Curie postdoctoral fellowship (FP7) Ref. 624295 and by the Flemish Fund for Scientific Research. Work on the Sheffield Desistance Study was supported by the ESRC under a programme grant coordinated by P-O. Wikstrom at the University of Cambridge, UK. Abstract Over the last twenty years, research on desistance from crime and on restorative justice has grown rapidly and both have emerged as exciting, vibrant, and dynamic areas of contemporary criminological interest. While the implementation of restorative justice practices in Europe has been essentially victim-oriented, there has always also been an emphasis on including the moral and social rehabilitation of the offender. This more offender-centred approach to restorative justice and its practices is not limited to the evaluation of its ability to reduce crime, but is to be seen within the connection between reparation, resettlement (reintegration into the community after sentence), and desistance from crime. This article examines, from a broad perspective, but including some preliminary data from ongoing research on victim- offender mediation in prison, the capacity of restorative justice interventions to impact positively on offenders’ likelihood of stopping committing criminal offences. Introduction Restorative justice is practised in many ways in different countries, so much so that it 2 has been called an ‘umbrella concept’ (Shapland, Robinson & Sorsby, 2011). All, however, share a number of common values, which are also emphasised in relevant international instruments, such as the UN Basic principles on the use of restorative justice programmes in criminal matters (E/2002/INF/2/Add.2). They include free consent by the parties invited, such as the offender and victim, preceded by adequate information about the process; inclusivity in inviting those affected by the offence; the use of a trained, impartial facilitator; and facilitating communication between the parties in a safe way. In this article, we shall be concentrating upon victim-offender mediation (with just victim, offender and mediator/facilitator), together with some experiences of conferencing (which has, additionally, victim and offender supporters present). However, the principles of what we are suggesting may well apply more widely to other forms of restorative justice. In contrast to the inclusive nature of restorative justice, the process of desistance – an offender ceasing to commit criminal offences – has often been portrayed as a matter solely between offender and state. Longitudinal studies have found that the majority of offenders do desist, even persistent offenders (Laub & Sampson, 2003; Blokland, Nagin & Nieuwbeerta, 2005). As we shall see, the offender’s own decision to desist – his or her ‘agency’ – has been found to be key in the process of desistance. The actions of the state, particularly in prosecuting offenders and punishing them, are presumed to deter further offending – and there is no doubt that any temporary absence of a functioning criminal justice system does increase crime (Hurwitz & Christiansen 1983) and that imprisonment promotes offenders thinking seriously about their lifestyles and the future (Bottoms & Shapland, 2016). Yet more recent research on desistance, as we discuss below, has shown that the actions and influence of those around the offender – partners, family members, friends, key workers – can also be vital in both initial decisions to desist and in maintaining that desistance. Achieving desistance is often a struggle, in which the support, encouragement and practical actions of those around the desister are very important. The key questions for this article, and indeed this special issue, are then whether restorative justice might have the capacity to promote desistance and if so, in what ways. There is the danger that focusing upon desistance might produce an overly offender-centric consideration of restorative justice – a danger into which some policy 3 work and practices have in the past fallen. We shall necessarily be considering primarily the offender’s journey to desistance in this article, but it is important to stress first that, according to its own values, restorative justice needs to employ a balanced approach, considering both victim and offender views and needs, and secondly, that victims’ wishes in agreeing to participate in restorative justice often include the offender’s desistance and the offender dealing with elements linked to his or her offending (Shapland et al., 2011; Van Camp, 2014). Given space constraints, we shall not consider all the differing previous theoretical views of restorative justice, but instead concentrate upon those which have addressed the potential for reducing reoffending. We shall first explore how restorative justice has been linked to offender rehabilitation and reductions in offending, before turning to theories of desistance and how this is thought to occur. We shall then consider some of the empirical evidence which seems to indicate a link between restorative justice and desistance in practice, before, finally, pulling out those elements of restorative justice which may have the potential to contribute towards desistance. For this, we also draw upon some of our current research that concerns the relation between restorative justice practices and desistance from crime in a prison in Belgium and one in England and Wales. Linking restorative justice, preventing recidivism and rehabilitation Some theoretical approaches to restorative justice are relatively silent in relation to its potential to affect reoffending. They either do not see that as its chief purpose or would see it as a by-product of what is, for them, the main purposes of restorative justice (Robinson & Shapland, 2008). So, for example, key elements for Zehr (1990) are healing and strengthening of bonds between offender, victims and the local community, particularly when the offender and victim know each other. Christie (1977, 2015) sees restorative justice as a means to increase communities’ abilities to solve their own problems, through communication and proposals for action. Both would not envisage the relationship between restorative justice and criminal justice as central – indeed both would prefer the criminal justice system not to be involved - and, like Shearing (2001) would see any reduced reoffending as a benefit in terms of not exacerbating local problems but not a prime purpose for restorative justice. 4 There has been a strand of restorative justice theorising which has sought to address criminal justice goals and particularly offender rehabilitation, but it too has been wary of restorative justice becoming submerged or absorbed within traditional criminal justice, so that the processes and principles of restorative justice become compromised. So, Bazemore and O’Brian (2002) would aim at offender rehabilitation, but also warn against restorative justice becoming too offender-centric. Johnstone (2002) sees rehabilitation as a legitimate goal, but not at the expense of victim-oriented goals. Robinson and Shapland (2008) suggest that this concern about the potential dominating influence of criminal justice, should restorative justice schemes admit rehabilitation or preventing recidivism as valid purposes, has led to a lack of discussion and some vagueness about offender-oriented purposes for restorative justice: benefits for offenders have been equated with deficits for victims. They argue that restorative justice does not have to be such a zero sum equation: that in fact reducing reoffending is what victims desire, as indeed do offenders seeking to desist. Preventing reoffending as such is of course not a very measurable outcome, because offending can only be measured using official figures for arrests or convictions, or through self-reported offending, which is known to have some biases. Preventing recidivism, meaning preventing further convictions (or further arrests for US research), is more easily measurable and most studies of recidivism and rehabilitation have tended to use these measures. The link between restorative justice and rehabilitation has been seen by Bazemore and O’Brian (2002) to be promoted in juvenile offenders through doing reparative work either directly to victims or for the wider local community. Reparation allows offenders to take up roles where they are actively engaged with the community and in which they are valued. It serves a reintegrative function. They would also see conferencing, in particular, as providing opportunities to acquire social capital (a network of resources) and sometimes human capital (training and skills), though mediation may also aim at these elements. However, as we shall see, there is a potentially crucial difference between ideas of rehabilitation and those of desistance. Rehabilitation has been used to refer to efforts by the state or others external to the 5 offender to reduce recidivism. Often, rehabilitative programmes are prescribed as part of sentencing or during penal sanctions – and normally they are imposed upon offenders. They are what might be called ‘top-down’ prescriptions.1 Desistance, however, as set out below, values the work of the offender himself or herself, both in taking decisions to desist and in taking action to carry them out – a much more ‘bottom-up’ perspective. Braithwaite’s (1989, 1993) theory of reintegrative shaming also directly links restorative justice mechanisms with preventing recidivism, but in a different way. Braithwaite sees the intrinsic processes of communication within restorative justice as affecting the offender’s own views of the victim and the offence, inducing guilt and remorse. Reintegration, later on in the process, then involves the offender being brought back in as a full member of both the offender’s ‘near community’ (family, friends, those close to the offender – the ‘community of care’) and the wider local community. Though this involves elements which are ‘done to’ the offender, it also intrinsically involves the offender himself or herself changing and reaching back out to those communities. It is not purely ‘top-down’, but also ‘bottom-up’. We turn now to how these ideas may link to the rapidly growing theoretical base on desistance. Theoretical and conceptual models of desistance from crime Within the restorative justice movement offender-related topics have been put forward as a breeding ground of restorative justice initiatives, with, for example, Varona (1996) making an association between improving prisoner rights and the rise of restorative justice initiatives. According to Daly and Immarigeon (1998: 27), similar to the women's movements in highlighting victims' issues and women’s empowerment, the restorative justice movement has found fertile ground in the criticisms of the civil rights movement concerning (racial) discrimination in policing, courts and prisons as well as in abolitionist-oriented social movements. In the same period in the nineties, even the same year as Braithwaite (1993) was writing ‘Shaming and modernity’ about his theory of reintegrative shaming, desistance from crime research was gaining increasing interest with the publication of Crime in the making 1 Thereby lies the potential danger if restorative justice is ╅sucked into╆ criminal justice too far┸ such that ╅top-down╆ considerations of what should be in any outcome agreement predominate. 6 by Sampson and Laub (1993). Research on desistance from crime is concerned with identifying the social and psychological factors associated with the slowing and ending of criminal careers and the adoption of a pro-social lifestyle. Rather than starting from the question of how the practice of resettlement (post-sentence reintegration into the community) should be constructed, this new paradigm begins by asking how change can take place. Desistance research has identified a range of elements which affect desistance and which interact in that desistance journey, such as employment, social support, intimate relationships, education, narrative shifts in identity transformation, positive social attitudes towards offenders by others, being able to break with the past, spirituality, agency, motivational elements, cognitive elements, and self-perceptions of the possibility of leading a non-offending life (Bottoms & Shapland, 2011; Giordano, Cernkovich & Rudolph 2002; Laub & Sampson, 2001; Maruna, 2001). Structural obstacles, such as difficulties in obtaining work, dealing with debt, difficulties in obtaining accommodation, and the need to show one has formal job and educational qualifications, often reinforced by political trends in Western countries, have made it more difficult for offenders to desist (Farrall, Bottoms & Shapland, 2010). Through the rising attention of developmental criminology and criminal career research, as well as an emerging number of qualitative studies, longitudinal research is available on cohorts of offenders looking at the desistance process and associated changing attitudes and identity. This qualitative research reveals a specific, in-depth insight into the lives of people, since the research does not focus on one point in time, but pays attention to different life phases of the (ex-)offenders. From the eighties on, different theories have been developed to account for why some people but not others cease offending. We shall first describe some of these theories which are potentially relevant to restorative justice interventions, and then we may be able to see how restorative justice might be useful. One of the early approaches to desistance from crime focused on the idea that ex-offenders make a rational decision to stop offending. Authors such as Clarke and Cornish (1985) and Pezzin (1995) show in their work that many offences were the result of rational decision making and choices and that, because those offending had become, for example, tired of prison, or 7 were receiving higher earnings from work, they ceased offending. The potential decision of (ex-)offenders to desist from crime is an important one. However, Farrall, Hunter, Sharpe, & Calverley (2014) stress that desistance is not just a matter of choice alone, but depends as well on the context of the social situation of offenders and its structural elements, such as employment, accommodation etc.. Another theory about desistance is Sampson and Laub’s (1993) theory of age-graded informal social control highlighting the importance of the bond between the individual and society. They argue that an individual’s engagement in crime is more likely when their bonds with various formal and informal social institutions such as the workplace, the family, etc. are weakened or broken. Importantly, Sampson and Laub posit that key events and turning points can trigger changes in an individual’s bond to society, or in losing that bond, or in regaining it. As such, these key events can influence patterns of offending and those of desisting from crime. In ‘Making good’ Maruna (2001:7-8) argues that in order to desist from crime, ex- offenders need to develop a coherent, pro-social identity for themselves which they can use to explain to both themselves and other people how their past lives have contributed to their ‘new’ identities. This narrative study, which involved 20 persisters and 30 desisters, who shared similar criminogenic traits, backgrounds and environments, looking back at their passage to desistance, shows the potential significance of the individuals ‘story’ or ‘script’ to justify and explain their criminal careers, discussing their subjective perspectives on their past, present and future, and the role they played in their life story. Maruna noted that while each story was unique to the individual, two common themes of ‘condemnation’ and ‘redemption’ were repeated, and that these differed between the persisters and desisters. Maruna (2001) found that those he classified as desisters amongst this sample displayed a belief that they could control their own futures in some way. Desistance, then, was bound up in a process by which an ex-offender came to see himself as essentially a new ‘good’ person. In contrast to Sampson and Laub’s (1993) perspective that desistance from crime is related to ‘objective’ changes like employment, Giordano et al. (2002) argue that cognitive shifts in the thinking of the ex-offender are the main driver of desistance. 8 Like Farrall and Bowling (1999), they state that a period of reflection and reassessment of what is important to the ex-offender appears to be a common feature of the initial process of desistance. For Giordano et al. (2002: 1001) a second phase is also needed where the ex-offender has an opportunity to change, that he or she must realize that this offers a potential ‘way out’, and, finally the ex-offender must act upon this opportunity. This leads on to the third phase where the ex-offender must have the ability to imagine a new role leading a new pro-social life. In the model of Bottoms and Shapland (2011, 2016), similar mechanisms through which the ex-offender experiences elements in his or her life that motivate and promote change are described. The authors suggest that various ‘triggers’ could produce the desire to change which brings ex-offenders to think about themselves, their surroundings and their potential future life differently. They suggest that this brings the would-be desister into thinking about and beginning to take action towards desistance which can either lead to attempts at maintenance (if successful) or to relapses (if unsuccessful). Many of the relapses are due to structural obstacles to desistance (such as failure to find a legitimate job), but even relapse does not necessarily bring the would-be desister back to square one, but to a point where he or she may, if still having the desire to desist, start off again along this journey. Along the route to a crime free identity and a pro-social life, these ex-offenders will find reinforcers to desistance, such as partners or new friends or work, which encourage the maintenance of desistance (Bottoms and Shapland, 2011). This Sheffield Desistance Study focused on male young relatively persistent offenders, aged 19 to 22. It might be seen as connecting the work of Sampson and Laub (1993) who emphasized the structural aspects of desistance from crime with the above-described insights of Giordano et al. (2002) (in terms of individual agency). Vaughan (2007) argues that desistance is best understood by focusing on the ex- offender’s internal conversation during which they weigh up the pros and cons of desisting, and how this fits into their values. This internal conversation is more than the deliberations of rational decision making, as described in the work of Clarke and Cornish (1985) and Pezzin (1995), but includes an emotional appraisal of how the ex- offender feels about his or her own past criminal activities and future pro-social plans and actions. Paternoster and Bushway (2009) still see desistance from crime as a 9 consciously taken decision that over time will be accompanied with more positive reasons for desiring and maintaining change, but significantly introduce the idea of a ‘feared self’, which ex-offenders fear they will become should they not desist. They see the processes of working on the self as an ever ongoing project of the ex-offender. In the same way as in the desistance models of Maruna (2001), Giordano et al. (2002) and Bottoms and Shapland (2011, 2016), a lot of emphasis in the models of Vaughan (2007) and Paternoster and Bushway (2009) is placed on how the ex-offender starts to see himself and is seen by others. Although agency in desistance research has a growing literature, it still remains difficult to fully understand how ex-offenders marshal their personal resources to help them embark on meaningful and productive lives. Healy (2013) groups the existing theories on agency into three categories: cognitive models that describe the mental architecture of agency (like Vaughan, 2007); narrative models that explore agency in the context of identity development (like Maruna, 2001); and multi-dimensional models that envisage agency as a psychosocial construct (like Giordano et al., 2002). Cognitive theories of agency are supported by research evidence showing that certain attitudes and thinking styles facilitate criminal behaviour. However, rational decision making is invariably restricted by the boundaries of human knowledge and by social constraints (Farrall & Bowling, 1999), whilst the recent study of Shapland and Bottoms (2011) suggests that the decision to desist may be influenced by moral considerations, such as a concern that continued offending could cause distress to family and friends, rather than just by cognitive processes. Motivational and cognitive elements are in the narrative models located within the narratives that ex-offenders construct to make sense of their lives. The ex-offenders who participated in Maruna’s study (2001) desired to repair the harm caused by their past actions and resolved to achieve this by engaging in generative pursuits, such as counselling or caring for others – though they were largely ex-drug users and this opportunity may be open to only a few ex-offenders. It suggests, though, that ex- offenders’ choices to desist are not just guided by changing cognitions but also by their latent understanding of themselves, their past and their environment (Farrall et al., 2014). This information is used by ex-offenders to shape their (new) identity, 10 guide their behavior and add order and coherence to their social world. For Healy (2013) this represents a significant advance on the more passive, individualistic and deterministic vision on agency offered by the cognitive perspective. In the multi-dimensional models that envisage agency as a psychosocial construct, like the theory of cognitive transformation by Giordano et al. (2002), desistance begins with a shift in ‘readiness to change’ that increases receptivity to environmental ‘hooks’ for change. These cognitive shifts expand the ex-offender’s capacity to imagine an alternative non-criminal self and are accompanied by an emotional maturation process (Healy, 2013). Giordano et al. (2007) elaborate on this link between young adolescents committing crime and their negative emotions (for example, relating to a difficult childhood) and positive emotions (such as excitement). In this sense, emotional maturation may be linked to the capacity to reflect on choices, engage in intentional action, maintain emotional stability and build social and human capital. Hence, we have seen that theories as to why some people but not others cease offending, used to be characterized by a certain degree of difference between those theories which see offenders as rational agents who freely choose their actions and others that portray offenders as individuals whose behaviour is determined by external forces. Research into desistance from crime has produced a more complex and nuanced account of crime causation which acknowledges the interplay between agency and structure. Reflecting upon their own sample and theory of desistance, Farrall et al (2014: 292) conclude that different theoretical insights can be meaningful for different people and that different theoretical insights as to the pathway to desistance are possible for different people in different circumstances: ‘There are no clear theories of change. Change is messy, it is complicated, it goes round in circles, it feeds off itself in reinforcing, iterative loops, it is interruptible and open to influences at any stage’. It is certainly the case that we do not yet know whether particular models of desistance are applicable for people in different circumstances, trying to desist at different ages, or from different cultures – the empirical research on desistance is still too scanty, and has tended to concentrate upon men, in their 20s-40s, and from 11 Western countries (Shapland et al., 2016). However, it does seem first that even persistent offenders tend to desist and secondly that in that process, which is often messy, both agentic and structural features are important. After an initial decision, all kinds of attitudinal, identity and behavioural aspects come into play, including breaking the old habits of being with people or getting into situations which tend to lead to crime, and learning new ways to lead a non-offending life in the community. The restorative-desistance study in prisons in Belgium and England and Wales The implementation of restorative justice practices such as victim-offender mediation (VOM) in Europe and the UK now has an increasing focus on the moral and social rehabilitation of the offender. The possibility of this intervention reducing the likelihood of offenders’ reoffending opens new perspectives for VOM in prisons. As we have seen, within the process of desisting from crime, motivational and cognitive elements are critical and they could have clear links with the processes involved in restorative justice practices, which themselves have the potential to foster social and human capital (Bazemore & O’Brian, 2002) and so impinge upon and potentially provide means to buffer the structural difficulties which are obstacles to desistance. Restorative justice processes can occur with the offender in the community or in prison, but particularly for more serious crime and for adult offenders, and where restorative justice is offered post-sentence, they may well occur in prison. However, prisons differ significantly from other social institutions, induce deprivations and have specific cultures and structures that influence practices and the behaviour of all those present. The particular empirical research from which we shall draw some insights about the potential for restorative justice in relation to desistance focused on the way in which these restorative justice practices (VOM) can promote desistance from crime, but at the same time, interact with the structural and cultural elements that are part of daily life in prison. If indeed, restorative justice practices like VOM are introduced and fostered in prison, they must be understood in relation to the institution’s structural and cultural elements. These practices have a place in the prison’s essential dynamic between the institution and its inhabitants. Our main empirical research objective is to explore the cultural and structural elements in prison that interact with or influence these elements 12 in victim offender mediation, aiming at enhancing the desistance process of the prisoner. The research was conducted at HMP Leeds (England and Wales – UK) and the Belgian prison of Oudenaarde. Both prisons differed significantly from each other, not just because of their location in two different countries with different cultures, languages and legal system, but in their prisoner population. However, the restorative justice (VOM) practice in itself was similar in both countries and both prisons. Also, the focus of our research is on this practice in relation to the prison’s culture and structure where these elements like language and legal system are incorporated within the relationship. The operational capacity of the English publicly run prison in Leeds was around 1,200, with a high turnover of prisoners with a sentence under five years while the Belgian one accommodated just 180 prisoners primarily with a sentence of more than five years. Both establishments were built around 1840, and have similar architectural characteristics on the outside and inside. It was primarily the numbers of prisoners living and working together on the prison landings which made a huge difference between the prisons. The Belgian prison wing consisted of just 20 to 30 prisoners, each having his own cell while HMP Leeds had prison landings of 3 floors with 200 prisoners living together and sharing cells. Both research sites were selected partly for their differences, and especially because restorative justice practices were taking place in both prisons, and in part for pragmatic reasons, based on an established relationship between the one of the authors and the prison’s governor, who was willing to facilitate the research. The prisoners selected for interview (N = 30) included prisoners who had participated in victim-offender mediation in one of these prisons. The mean age of the sample was 29 and all interviews were conducted by the first author. He also mingled with the men, observed their interactions and daily life on the wing and spoke informally about the nature of the study. At this stage, some prisoners were forthcoming and enthusiastic about the opportunity to be interviewed. Given the small and non-random design of the research, the conclusions that can be drawn are tentative and preliminary. The interviews were guided by a schedule which was structured around important themes flagged in the literature on restorative justice, desistance from crime and daily life in prison. However, this was a non-linear process where the order of 13 questions and amount of time spent on each topic varied according to prisoners’ responses. Overall, the interviews had an informal and free-flowing feel. Only a small amount of the interviews were recorded using a digital Dictaphone. Prisoners’ names have been anonymized. The focus on motivational and cognitive elements in desistance from crime and restorative justice As we saw above, within the process of desisting from crime, motivational and cognitive elements such as decisions to desist, self-perceptions of the possibility of leading a non-offending life, and considering a possible new personal and social identity are, as described in the models above, critical elements in the process of desistance (Farrall, 2002; Farrall & Maruna, 2004; Bottoms & Shapland, 2016). These motivational and cognitive elements have obvious links with the processes thought to be involved in restorative justice practices. Desisting ex-offenders have been shown to differ from active offenders in thinking patterns related to hope and self-efficacy, shame and remorse, internalizing stigma and identities (Lebel et al., 2008). Restorative justice can be explicitly oriented towards the prevention of reoffending, and this is particularly so in conferences influenced by Braithwaite’s (1989) ‘reintegrative shaming’ theory. These are effective instruments for inducing guilt and eliciting remorse on the part of the offender, as well as a potential precursor to forgiveness, acceptance and reintegration within the law-abiding community (Tangney, Steuwig, Mashek & Hastings, 2011). Note that those offenders participating in restorative justice have already voluntarily agreed that they committed the offence, accepted responsibility for it, and will communicate with the victim (face-to-face in the case of a direct meeting in mediation or conferencing). This is a selected population of offenders, who are likely to be different in their cognitive and emotional state from a standard correctional or rehabilitational group (Robinson & Shapland, 2008). The restorative justice encounter itself can be seen as an environment or ‘stage’ for ex-offenders to indicate how they wish to change their lives and to obtain practical help on exactly how to achieve this (Shapland, 2007). Moreover, offenders will be making these statements to victims, not just to state personnel (as in court or in correctional programmes). 14 In our current research in prison, ex-offenders explained their readiness to acknowledge the crime they have committed, the wrongness they have done and to take up responsibility towards the victim and themselves. One of the respondents in HMP Leeds explained: ‘that is one of the things that makes me different in here, I do want to change, that is my decision to make and that is why I asked to do restorative justice’. Ex-offenders saw these practices as something one only initiates when one has traveled a certain way in one’s views about and ability to handle the consequences of the crime committed. In the interviews, almost all ex-offenders stated that they thought differently about certain attitudes and thinking styles that before had facilitated their criminal behaviour. For them, this shift in thinking was prior to participation in restorative justice but was reinforced by the interactions, the topics discussed and especially by the information received from their victim during the restorative justice process. As one respondent in HMP Leeds clarified: ‘To hear that from my victim was a shock to me, I had no idea at all that she would feel like this (…) it made me more certain that I will not do that again’. Apologising to the victim was for ex-offenders the reason to agree to participate in restorative justice. It meant admitting wrongdoing, wishing to make things right (Shapland et al., 2011) but also for a lot of ex-offenders it meant, ‘closing a bad chapter of my life’; ‘done what I needed to do so I can move on’; ‘focusing on the future’. In this sense, apologising to the victim was much more future-orientated than focused on repairing the ham caused in the past. For them it was an important element, though there were of course many others (such as, for example, stopping using drugs), in breaking with the past and creating for themselves thinking space about a non-criminal life. However, this pathway to desistance is almost never straightforward and there may be an inconsistency between the stated motivation of ex-offenders to desist (as possibly mentioned in a restorative justice encounter), and his or her actual behaviour. Shapland and Bottoms (2011) elaborate further on this phenomenon by drawing on the philosophical concept of ‘akrasia’, or weakness of will, which occurs when an ex- offender engages in behaviour that is inconsistent with his or her morality. In the Sheffield Desistance Study, the majority of their respondents, young adult men, were 15 reconvicted although they expressed pro-social aspirations throughout the follow-up period of the research. Shapland and Bottoms (2011, 2016) conclude that an ex- offender’s ultimate ambitions may sometimes be sidelined by short-term situational needs (and thus crime). As they explain ‘wishing to desist is one thing, actually getting there [...] is another’ (Shapland and Bottoms 2011:271). Still, desistance requires strong motivation to change coupled with firm self-belief and a repertoire of effective coping strategies, a combination of ‘the will and the ways’, something that can be enhanced in restorative justice interventions (LeBel et al., 2008; Healy 2013; Farrall et al. 2014). Healy (2012, 2013) also explains that desisters are highly optimistic in their outlook while continuing offenders tend to have, in their narrative, a sense of fatalism and hopelessness about future prospects. Research by LeBel et al. (2008) shows that these negative emotional states increase recidivism. For them desistance appears to be accompanied by a diminution in negative feelings and an augmentation of positive emotions, in which feelings of regret, shame and guilt are replaced by feelings of hope, pride and a sense of achievement (see also Farrall & Calverley, 2006; Farrall et al., 2014; Healy, 2012, 2013). Research by Maruna and Copes (2005) suggests that ex-offenders may employ neutralization techniques to reconstruct the negative facts of their criminal pasts in ways that are consistent with a non-criminal self. These techniques include denying responsibility, minimizing the injury caused to victims and citing higher moral grounds for their actions (see Sykes & Matza, 1957). Such excuse making can serve the ‘highly adaptive’ dual purpose of enabling ex-offenders to preserve a positive and coherent sense of self and also shield them from external blame and stigma (Maruna & Copes, 2005: 251). However, restorative justice practices through their forward planning and reintegrative aspects can avoid these destructive, disintegrating effects of unchannelled emotions of guilt, shame and remorse on prisoners, leading to self- destructive stigma and identities as well as to feelings of depression and powerlessness. In an interview with one of the ex-offenders in the Belgian prison of Oudenaarde who participated in a victim offender mediation, all these elements seemed to come together: 16 I told you Bart how I want to change, what I feel when thinking about my mistakes. I cannot sleep at night just thinking about what I have caused, not just for me and my family, also for the victims. I did apologize, afterwards, in an encounter in prison. Not easy at all, I was as nervous as for my first fight. Incredible how strong they were, and how small I was. That week was one of the hardest one’s. The encounter took me back to things I have done, it is like a new image of those people burned in my brain. My wife was there as well, that was the hardest thing, seeing her reacting with kindness to the victims, and being there for me as well (silence, he looks down, seems emotionally touched, looks up again). Fuck, it was hard, still is. It changed me Bart. (interview, prisoner, home-jacking) Restorative justice interventions aim at separating the person of the offender from the offence that individual has committed, in that sense shaming the offence, but not the offender, as Braithwaite (1989) puts it in his theory of reintegrative shaming. For Shapland and Bottoms (2016), dealing with these unchannelled emotions and separating the intrinsic person from the offence, pouring shame on the offence, but affirming that the offender could change, is likely to underline any pro-desisting ideas the ex-offender may have. As one of the ex-offenders in the Belgian prison of Oudenaarde explains: The system focuses on all your negative characteristics, or defaults. They look at you as a doctor, trying to figure out what is wrong with you. I also have some good things to say about me. I am a whole person, with bad but also good parts, I don’t like it being reduced to just the crimes I have committed. (stops speaking) You know who the first person was who addressed me as Akran [his name], my mediator. (fieldnotes, prisoner, murder) In victim offender mediation in prison and other restorative justice practices, ex- offenders have the opportunity to tell their own story about life and their crime in a safe and trusting environment. They can bring in the nuances of their story which means they can regret, they can resist and they can talk about their own victimization and personal situation. As an ex-offender in the prison of Oudenaarde said, ‘It is all about trust, having the possibility to show the mediator who you are, how you think, 17 without being judged again. If not, it is not possible to show emotions, or talk about regret’. Structural elements in desistance and restorative justice These motivational and cognitive elements do not stand alone but operate through a dynamic, interactive process with social and external influences (LeBel et al., 2008). Work by Farrall (2002, 2005), Maruna and LeBel (2012), Porporino (2010) and Bottoms and Shapland (2011) all stress the importance in desistance of both offenders’ agency and that of structural features of modern society and contextual changes in offenders’ lives. Structural and practical obstacles, such as difficulties in obtaining work, dealing with debt, the need to show formal qualifications and having suitable housing make it more difficult for offenders to desist. Restorative justice practices can have the potential to foster social and human capital, relevant to these desistance processes, as is shown in the research by Farrall (2005), Robinson and Shapland (2008) and Bottoms and Shapland (2011). Particularly where supporters are present (though this is not often the case with VOM in prison), those supporters can add their own social capital to extend that of the offender, with the opportunities known about by mediators and any other professionals involved being drawn in as well. Through these practices, new connections can be created that build human capital in the ex-offender and social capital in the communities where they will be reintegrated (Farrall et al., 2014). Some supporters may be able to provide support to ex-offenders to accomplish elements of the outcome agreement (Shapland et al., 2011). Others may have information about relevant opportunities or programmes to deal with offending-related problems, such as drug dependence. Ex-offenders in our study explained that the victim offender mediation in itself did not trigger them to start for example correctional programs, or signing up for a drug treatment program in prison. As a respondent in HMP Leeds stated: ‘It was not because of mediation, nor for the victim, that I stopped using spice. I did that because you see people getting burned (means getting an overdose and in need for medical treatment) on the wing everyday’. This is not different from the reflections made by Robinson and Shapland (2008) and Bottoms and Shapland (2016) stating that at least 18 a proportion of the (ex-)offenders taking part in a mediation or conference already had their mind set on change, and the idea of desistance. This respondent at HMP Leeds continues: It was a strange feeling. The responses of the victim motivated me not to re- use again. She was wanted me to stay clean, to have a good life, not to fall back and rob again. (Bart) And why was that strange for you? (Respondent) Because you don’t expect such a response from your victim. She was almost more concerned about me than for the money she lost. You don’t expect something like that in mediation, I thought she would be very angry, maybe shouting at me, I don’t know, and me just apologising, if she would let me of course. But she was very compassionate, very interested in me as a person, and she wanted good things for me. The mediation offered an extra motivation to continue with the programmes they started and to enforce the momentum on the path towards desistance: to maintain desistance. Another respondent at HMP Leeds added: ‘the victim wants me to inform the mediator every six months about the progress I am making, the programmes I am doing, and if I am still clean’. For these (ex-)offenders their involvement in the restorative justice practice built new human capital in them because of the positive involvement by the victim. Also, through these mediations, new social connections were established that had the potential to build social capital. One of the respondents in the Belgian prison of Oudenaarde explained: ‘because of the talks with the mediator, I learned that I am in need of someone to talk to on a regular base, and since then, I do counselling every week’. Other respondents referred to being able to reconnect with family members or friends who were present as support during the encounter with the victim. Some respondents even talked about the indirect effect this participation in a restorative justice practice had on them in relation to others. Some (ex-)offenders talked about their changing relationship with their wife or children because of their opening up in visits in prison or on the phone about their emotions, their own victimization and their empathy towards the victim. ‘It is not just about doing the right thing for her (victim), but also for my wife and daughter, I have talked a lot about that with my wife, it made us 19 closer. And she sees now that I really want to change’, explained one of the respondents in HMP Leeds. Rossner (2011) argues that the ‘emotional energy’ invested in its interaction rituals in a restorative justice practice is responsible for desistance, by creating empathy for victims, and a mood of solidarity and symbolic reparation that provides former offenders with a narrative of change to act upon. However, that ‘emotional energy’ is not just present in the interconnection between victim and (ex-)offender but can have more than just side-effects on social connections with the broader ‘community of care’ (Braithwaite, 2003) around the (ex- )offender. Restorative justice interventions like victim offender mediation also provide an opportunity for direct, two-way, question-and-answer communication with the practitioner, or victims or support group on these matters. These processes promote for the ex-offender a future-oriented approach and communication about the future. Ex-offenders are invited to discuss and reflect upon themselves and on what might mitigate the effects of the offence and to focus on constructive, pro-social problem solving. As such, they are invited to try to address the problems lying behind their offending, focus on the future, to indicate how they wish to change their lives and to obtain practical help on exactly how to achieve this, and thus, so reduce reoffending. Restorative justice practitioners, and also supporters of victims or ex-offenders (if present), can provide feedback concerning the structural barriers offenders will possibly face. This allows ex-offenders to lower their aspirations and to enable them to strive towards goals, and therefore identities, that are within their reach. Shapland and Bottoms (2011: 277) explain that ‘active maturation’, the willingness and ability to tolerate the shortcomings of a conventional life, such as poverty or boredom, is an important element in not losing that motivation to desist, and at the same time, seeing the benefits of a pro-social life, such as peace and companionship. The research of Cid and Marti (2015) reveals the importance of social support, particularly from families, as it produces a feeling of reciprocity and a desire for compensation from ex- offenders that explains their motivation to initiate and maintain change and that stimulates them to seek hooks for change. Discussion 20 The relation between restorative justice and rehabilitation/reintegration has always been a controversial one, with some restorative justice advocates arguing that these practices are likely to facilitate offender reintegration and others almost stating the opposite. Ward, Fox and Garber (2014) explored in this journal the relation between restorative justice and offender rehabilitation/reintegration with a particular eye toward the relationship of desistance theories to these debates. They suggest that restorative justice, rehabilitation and desistance ideas and practices can be conceptually linked, with restorative justice providing an overarching normative framework, and correctional programmes and desistance processes supplying the resources required by offenders to live a more pro-social life. We would wish to draw some distinction between rehabilitative programmes and the processes of desistance. Just having the rehabilitative programme available or present does not mean that it will be seen as appropriate by the (ex-)offender or taken on board to maintain desistance. However, not having the rehabilitative programme present means that the would-be desister is left to deal with the problem by himself or herself, without effective support. We would argue that some restorative justice practice, and its accompanying theoretical bases do have the potential to promote desistance, though other forms of restorative justice practice may not intend to affect recidivism at all. In this article, we have primarily been referring to victim-offender mediation (and to some extent conferencing), and specifically to direct face-to-face meetings. As demonstrated above, restorative justice practices can have the possibility to foster agency, change the narrative, alter cognitive mindsets and create a shift in the identity of the (ex- )offender. We should note though that restorative justice practices may play a larger role in maintaining desistance in those who have already taken an initial decision to try to desist, rather than initiating that decision to desist (though there are some famous examples of a restorative justice conference providing the initial impulse to desist – as in the case of Peter Woolf (2009)). As part of the voluntary participation of (ex-)offenders in restorative justice, they are invited to take up responsibility towards the harm caused, and especially towards their victim and their own family or ‘community of care’. In these practices, with all these relevant persons present, communication is focused around norms and values in life, and thus, these practices can reinforce these shared norms and values, which can lead to strengthening their 21 belief, hope and motivation to desist from crime. Some restorative justice practices therefore have the potential, as an intervention, to facilitate a desire, or consolidate a decision to desist, and thus, may be less a trigger but rather a potential stepping stone for desistance (Shapland & Robinson, 2008: 352). While offenders’ agency in desistance has an obvious link with restorative justice practices, structural and practical obstacles are much more difficult to address in some current restorative justice practice. This may be due to the conceptual and practical organisation of these restorative justice practices. For example, in both prisons, Leeds (England & Wales) and Oudenaarde (Belgium), the restorative justice practice was victim-offender mediation with a strong focus on facilitating communication between victim and (ex-)offender. The approach in both prisons was focused far more on the needs of both parties for healing and much less on arriving at an agreed outcome, or specifying how practical obstacles to desistance might be overcome. This meant that less than one fifth of the mediations resulted in an outcome agreement, and any such document was especially focused on (financial) reparation towards the victim. Rehabilitative or reintegrative initiatives or opportunities for the (ex-)offender were only in exceptional cases part of this process-driven practice. This tended to occur when the victim, as a means of promoting the (ex-)offender taking responsibility or as reparation for the harm caused, explicitly asked the (ex-)offender to add these components (drug counselling, psychological treatment, etc.) to the outcome agreement. The restorative justice practices in HMP Leeds (England & Wales) and Oudenaarde (Belgium) had no definite, future-oriented, offender-focused phase in the normal process. This was different to the conferencing processes studied in England &Wales by Shapland et al. (2011), where there was that definite future-oriented phase and victims were keen to find out what was behind the (ex-)offender’s offending. Outcome agreements were almost always present (and agreed by all parties). Both victim and offender supporters shared these wishes, and the role of the facilitator and any professionals present was very much to provide information on what programmes or opportunities were available. Similar findings occurred in the evaluation of youth conferencing in Northern Ireland, which also has a future-oriented phase and which saw offender-based elements normally present in the outcome agreements (Campbell, 22 Devlin, O’Mahony, Doak, Jackson, Corrigan & McEvoy, 2005). Because of the non- explicit nature of this future-oriented offender-focused phase in restorative justice practices in HMP Leeds (England & Wales) and Oudenaarde (Belgium), those themes and elements that would help the (ex-)offender to desist, were not explicitly put down in an outcome agreement. Hence, just as some theories behind restorative justice practices see restorative justice as potentially promoting desistance, whilst others do not, so some restorative justice practices (particularly those with a future-oriented offender-based phase to the communication between victim and (ex-)offender) seem to have the potential to address practical obstacles to desistance and so to promote this aspect of maintaining wishes to desist, whilst others have less of a focus on these elements. The timing and place of restorative justice are also likely to impact upon its ability to address structural obstacles, though not necessarily to affect decisions to desist. Even though the restorative justice in our study was being done in prison, the impact of being able to communicate with the victim seemed to be powerful in terms of agency and desistance decisions, whether this was a long sentence (Belgium) or a short sentence (England & Wales). However, it is difficult for participants to hold an informed conversation and come to decisions about structural matters unless the (ex- )offender is likely to be released in the reasonably near future and has some idea as to his or her likely social context in the community. Those in the middle of a long sentence will be focused much more on the social circumstances of prison. A third element that may hinder addressing structural and practical obstacles, and building social and human capital is whether relevant members of the community are involved. The community around the victim and (ex-)offender is not always perceived as a key stakeholder in these restorative justice practices. In the mediation in both England & Wales and in Belgium, the micro-community around the (ex-)offender and where the crime occurred were not included. Ideally, and according to the main definitions of restorative justice, restorative justice practices should include all parties, or stakeholders, who feel connected emotionally, physically or in other ways to the actual victim, the (ex-)offender or the event itself. These communities serve an important normative function by developing, communicating and upholding shared norms and values, not just during restorative justice practices but also afterwards 23 when the (ex-) offender returns to society. The importance of social support, particularly from families, in the desistance process cannot be stressed enough (Cid & Marti 2015). In some victim offender mediations, that micro-community around the (ex-) offender was formed by people working in prison like a prison officer, social worker or prison chaplain. For the (ex-) offender, this support was especially focused on their participation in the mediation process and much less on their possible support concerning their return or reintegration in society, and thus their possible desistance from crime. A prison-based micro-community cannot play the same role as the (ex- )offender’s community based one. A similar pro-desistance normative influence might also be provided if members of the community into which the (ex-)offender will be reintegrating would be included, though this has rarely been attempted in any restorative justice process in prison. Our conclusion would be, therefore, that there can be a connection between restorative justice and desistance, both theoretically and practically – though not all theoretical bases for restorative justice aim to do this. In particular, restorative justice practices involving victims and (ex-)offenders can help to maintain and strengthen those ex-offenders’ desires to desist. However, charting a clear way forward practically for the ex-offender is more difficult, and here some restorative justice practices (those which specifically aim to address the future in practical terms) may be more helpful than others. References Bazemore, G. & O’Brian, S. (2002). The quest for a restorative model of rehabilitation: theory-for-practice and practice-for-theory. In L. Walgrave (ed.) Restorative justice and the law. Cullompton: Willan. Blokland, A., Nagin, D. & Nieuwbeerta, P. (2005). Life span offending trajectories of a Dutch conviction cohort. Criminology, 45(4), 919-954. Bottoms, A. E. & Shapland, J. (2011). Steps towards desistance among male young adult recidivists. In S. Farrall, M. Hough, S. Maruna, & R. Sparks (eds), Escape Routes (pp. 43-80). London: Routledge. 24 Bottoms, A. & Shapland, J. (2016). Learning to desist in early adulthood: the Sheffield Desistance Study. In J. Shapland, S. Farrall & A. Bottoms (eds.), Global perspectives on desistance: reviewing what we know, looking to the future (pp. 99- 125). London: Routledge. Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press. Braithwaite, J. (1993). Shame and modernity. British Journal of Criminology, 33(1), 1-18. Braithwaite, J. (2003). Principles of Restorative Justice. In A. Von Hirsch (Ed.) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms. Oxford: Hart Publishing. Campbell, C., Devlin, R., O’Mahony, D., Doak, J., Jackson, J., Corrigan, T. & McEvoy, K. (2005). Evaluation of the Northern Ireland Youth Conference Service. NIO Research and Statistical Service Report No. 12. Belfast: Northern Ireland Office. Christie, N. (1977). Conflicts as property. British Journal of Criminology, 17(1), 1- 15. Christie, N. (2015). Widening the net. Restorative Justice, 3(1), 109-113. Cid, J. & Marti, J. (2015). Imprisonment, social support, and desistance: A theoretical approach to pathways of desistance and persistence for imprisoned men’. International Journal of Offender Therapy and Comparative Criminology, 1-22. Clarke, R. & Cornish, D. (1985). Modelling offenders’ decisions. In M. Tonry & N. Morris (eds), Crime and Justice: An Annual Review of Research (147-186) 6. Daly, K. & Immarigeon, R. (1998). The past, present, and future of restorative justice: some critical reflections. Contemporary Justice Review, 1, 21-45. Ezell, M. E. & Cohen, L. E. (2005). Desisting from Crime. Oxford: Oxford University Press. Farrall, S. & Bowling, B. (1999). Structuration, human development and desistance from crime. British Journal of Criminology, 39(2), 253–268. Farrall, S. (2002). Rethinking what works with offenders: Probation, social context and desistance from crime. Cullompton: Willan. Farrall, S., Bottoms, A.E. and Shapland, J. (2010). Social structures and desistance from crime. European Journal of Criminology, 7(6), 546-570. 25 Farrall, S., Hunter, B., Sharpe, G. & Calverley, A. (2014). Criminal careers in yransistion. The social context of desistance from crime. Oxford: Oxford University Press. Farrall, S. & Maruna, S. (2004). Desistance-focused criminal justice policy research. The Howard Journal, 43, 358-67. Giordano, P.C., Cernkovich, S.A., & Rudolph, J.L. (2002). Gender, crime and desistance: toward a theory of cognitive transformation. American Journal of Sociology, 107(4), 990-1064. Giordano, P.C., Schroeder, R. & Cernkovich S.A. (2007). Emotions and crime over the life course: A neo-Meadian perspective on criminal continuity and change. American Journal of Sociology, 112(6), 1603–1661. Healy, D. (2012). The dynamics of desistance: Charting pathways through change. Abingdon: Routledge. Healy, D. (2013). Changing fate? Agency and the desistance process. Theoretical Criminology, 17(4), 557–574. Hurwitz, S. and Christiansen, K.O. (1983) Criminology. London: George Allen & Unwin. Johnstone, G. (2002). Restorative justice: ideas, values, debates. Cullompton: Willan. Laub, J. H. & Sampson, R.J. (2001). Understanding desistance from crime. Crime and Justice, 28, 1-69. Laub, J. & Sampson, R. (2003). Shared beginnings, divergent lives. Cambridge, Mass: Harvard University Press. LeBel T., Burnett R., Maruna S. & Bushway S. (2008). ‘The ‘chicken and egg’ of subjective and social factors in desistance from crime’. European Journal of Criminology, 5(2), 131–159. Maruna, S. (2001). Making good: How ex-convicts reform and rebuild their lives. Washington: American Psychological Association. Maruna, S. (2011). Reentry as a rite of passage. Punishment & Society, 13(1), 3–27. Maruna S. & Copes H. (2005). What have we learned from five decades of neutralisation research? Crime and Justice, 32, 221–320. Paternoster, R. & Bushway, S. (2009). Desistance and the ‘feared self’: toward an identity theory of criminal desistance. Journal of Criminal Law and Criminology, 99(4), 1103–1156. 26 Pezzin, L. E. (1995). Earning prospects, matching effects and the decision to terminate a criminal career. Journal of Quantitative Criminology, 11(1), 29–50. Robinson, G. & Shapland, J. (2008). Reducing recidivism: a task for restorative justice?. British Journal of Criminology, 48(3), 337-358. Rossner, M. (2011). ‘Reintegrative ritual’. In S. Karstedt, I. Loader & H. Strang (eds), Emotions, Crime and Justice (pp. 169-192), Oxford: Hart Publishing. Sampson, R. & Laub, J. (1993). Crime in the making. Cambridge, MA: Harvard University Press. Shapland, J. (2007). Desistance from crime and the potential role of restorative justice. Paper given to the conference on ‘What is criminology’, in honour of Sir Anthony Bottoms, Cambridge, 30 November 2007. Shapland, J. & Bottoms, A. (2011). Reflections on social values, offending and desistance among young adult recidivists. Punishment & Society, 3(3), 256-282. Shapland, J., Bottoms, A.E. and Farrall, S. (2016). Diversity or congruence – sketching the future: an afterword. In J. Shapland, S. Farrall and A.E. Bottoms (eds) Global perspectives on desistance: reviewing what we know, looking to the future (pp. 282-93). London: Routledge. Shapland, J., Robinson, G. & Sorsby, A. (2011). Restorative justice in practice. London: Routledge. Shearing, C. (2001). Transforming security: a South African experiment. In H. Strang and J. Braithwaite (eds.) Restorative justice and civil society. Cambridge: Cambridge University Press. Sykes G. & Matza D. (1957) Techniques of neutralisation: A theory of delinquency. American Sociological Review, 22(6), 664–670. Tangney, J.P., Steuwig, J., Mashek, D. & Hastings M. (2011). Assessing jail inmates’ proneness to shame and guilt: Feeling bad about the behaviour or the self. Criminal Justice and Behaviour, 7, 710-734. Van Camp, T. (2014) Victims of violence and restorative practices: finding a voice. London: Routledge. Varona, G. (1996). Restorative justice: new social rites within the penal system. Onati: International Institute for the Sociology of Law. Vaughan, B. (2007). The internal narrative of desistance. British Journal of Criminology, 47(3), 390–404. 27 Ward, T., Fox, K.J. & Garber, M. (2014). Restorative Justice, offender rehabilitation and desistance. Restorative Justice, 2(1), 24-42. Woolf, P. (2009). The damage done. London: Bantam Press. See also ‘The Woolf within’, at https://www.youtube.com/watch?v=A1s6wKeGLQk Zehr, H. (1990). Changing lenses: a new focus for crime and justice. Scottdale, PA: Herald Press. https://www.youtube.com/watch?v=A1s6wKeGLQk 
work_wcj27unmardgreyi5by65fettm	----	CIVIC AND COSMOPOLITAN JUSTICE by ONORA O'NEILL The Lindley Lecture The University of Kansas 2000 The E. H . Lindley ~lemorial LccLUrcsh ip Fund wall established in 1941 in memory of Ernest H. Lindle}. Chancellor of the Cni\·ersity of Kansas from 1920 to 1939. In February 1941 ~Ir. Roy Roberts, t.he chairman of the committee in charge, suggested in the Gmduatr i\·l ag- azi Ill' tha t the Chancellor should invite to the U niversity fo r a l<:c lure o r a se- ries o flect.ures, some o u tstan d ing national or world figure to speak on "VaJues o f Living"-jusl as the late Chan ce ll or proposed to do in his courses "The ll uman Situation'' and "Plan for Living." In the following june ~l r. Rober ts circulated a leuer o n be h alf of the Committee. proposing in somewhat broader terms that The income from this fund should be spent in a q u est of soc ial bet- tennent by bringing to the Univers it}' each year outstanding world leaders for a lecture or se ries oflcc tures, yet with a design so broad in i t.~ outline th at in the yet~rs to come, if it is d eemed wise, th is liv- ing memori al cou ld take some more d esirable for m. The fun d was allowed to acc u mu late unti l 1954, wh en Professor Richard McKeon lectured on "I Iuman Rights and Intern a tio n al Re- latiom. " The next lecture was g ive n in 1959 by Professor Evereu C. H ughes, and has been published by the Cniversity of Kansas School of L'lw as part of his book Strulmt.s' Culture and PerspeclitJfS: l .A•ctures on Medical and CeneralEdu catimr. The selection of lenurers for the Lind- IC}' series has since be en d e legated tO Lhe Departmem of Phi losophy. * * * A Volume of Undle)' L eoturee Delivered at the U nlveralty o f Ken•• • Rlo l\erd 8. Brandt \.tof.it,..aotocll,~tr'· ,. •. ,._,ctl~• Roderlck M. Ch laholm ~oM\ ,,~ ~ .... St Stuart Ham11ahlre fttfOOI'I"l"O:I v.._, William K. ,.,.nkene SOme 6ft.t~ IOOt.Jt J..ls11c~ Wilfrid Sellers f otm ·~ Con1~1 .n (lrt<:al tn~•) J. N . .. India)' n-, s.~,,- • u '" ,. \1~ ..... Alan Qew lrth Li.Oial "-''O""f'f' Albert H ofatadter At'«IOI"' 0" (,t Paul Rlooeur \\Nil IS D • •t -:totll't R. M, Here Son... Cof\tv-,101'11 abOut ~If(! 'wily (Oiled .,..•lh n lt11100vC I.Of\ Cl-)' John lrlo ke m The voi~JT~e can be purchased !()( $6.00 from the l.lbfaty Sales Office, UwerSity of Kansas Lrbranes. Lawrence. KMsas (U.S.A.) 66045. Please IIICiude a 50' handing fee, 75' CMSide the Ulited States. CIVIC AND COSMOPOLITAN JUSTICE by ONORA O'NEILL Professor and Principal of Newnham College University of Cambridge The Lindley Lecture, University of Kansas April17, 2000 © Copyright 2000 by Deparunent of Philosophy University of Kansas Civic and Cosmopolitan Justice Onora O'Neill 1 Justice beyond Boundaries There is, I think, little doubt that we now need an account of jus- tice that stretches beyond boundaries. Many activities, processes and powers have always had effects that reached beyond boundaries of var- ious sorts. Processes such as climate change, activities that may cause harm on a vast scale-such as uses of nuclear or bio-chemical weapons-- are no respecters of boundaries; policies for dealing with them also cannot respect boundaries. There are other activities and processes, such as trade and pollution, which do not invariably spread across bound- aries, but have done so for many centuries. Yet other activities and processes have recently begun to cross boundaries on an unprecedented scale: they include flows of capital, of information (and misinforma- tion), of technologies and of crime. Yet other activities and processes, such as flows of migrants and asylum seekers, are still more or less reg- ulated by various sorts of boundaries. All of these cross-boundary flows maybe altered and their effects magnified or reduced by adopt- ing one or another policy, hence all raise questions of justice. It is not obvious how we should now speak of those aspects of jus- tice that are concerned with activities and processes that cross bound- aries. Traditionally the term international justice has been used, but it has evident infelicities. In the first place, the units whose boundaries may--or may not-be crossed by various activities are seldom na- tions, and rather more frequently states; few of them are nation-states. However, terms such as interstatal justice and intergovernmental justice are hardly more apt, since some of the processes and activities of most concern elude or bypass the control of states and governments. An adequate account of justice and boundaries has to take note of the activities powerful non-state actors, ranging from corporations to non-governmental bodies, from criminal networks to UN institutions, whose location and boundaries are often not well-defined. The term transnational justice shares some of the deficiencies of the term inter- national justice. On the other hand the popular phrases global justice and cosmopolitan justice are too easily understood as presupposing that the outcome of a discussion of justice and boundaries must be uni- tary system of justice for the entire globe, hence as begging con- tentious questions. I have therefore settled on the deliberately minimal phrase justice across boundaries as a starting point. In using this term I assume only that where processes and activities can cross boundaries, reasons would have to be given for thinking that should or should not be permitted to do so. 2 Reason and the Scope of Justice To many people the very idea that (aspects of) justice might have unrestricted scope seems counterintuitive. They may note that jus- tice has been thought of since antiquity as a political or civic virtue, or insist that "justice is the first virtue of social institutions", 1 and sus- pect that uncoupling the link between justice and political units (whatever these may be at a given time) will be incoherent. I believe that this thought is convincing only if we assume that a system of just states will itself be just. But this claim is implausible. Of course, we can imagine a certain sort of plurality of states which would be just provided that each state was just. For example, a set of just states without mutual influence or effects (imagine that they are located on different continents in a pre-modern world, or on differ- ent planets today) would be just. But the system of states in the vari- ous forms in which it has existed in recent centuries is not like this. The prospects and powers of states, and the structures they can es- tablish internally, are always shaped by their relations with other states, by the forms of dependence and interdependence and the sorts of threats and risks, opportunities and advantages that each state pre- sents to others. It is uncontentious that there are relations of power and domination among states, and that interstatal relationships can be major sources of injustice. Nobody who reflects on the unhappy history of the twentieth century could think othenvise. In raising questions about the justice ofboundaries I shall not be concerned with the justice or injustice of their location-a venerable and contentious topic in many parts of the world-but with bound- aries as an institution. Boundaries do not have the simplicity that their linear representation on maps misleadingly suggests. They are not simply demarcations between all activities and processes occurring in one domain and all activities and processes occurring in an adjacent domain. It would perhaps be more accurate to think of boundaries 2 as systems of filters, which can be constructed and adjusted in many different ways. Boundaries can range from the 'supernormal' bound- aries offormer East Germany, which were virtually impenious to cap- ital and people, and permitted only a highly regulated and limited flow of goods and information, to the wholly porous, invisible and often ill- defined demarcations which even today are all that can be found in many frontier regions. In short, boundaries are complex social and political institutions whose form and function can be changed and ad- justed without changing their location. 2 Boundaries, like other insti- tutions, are therefore appropriate matters for challenge and criticism. All questions about location apart, the justice of boundaries, and of changes that might be made in the way they regulate and filter the pas- sage of goods and money, people and information, technologies and ways of life, represents a m;~or challenge for political philosophy. These preliminary thoughts about boundaries show very little about the appropriate way to address the justice of boundaries in political philosophy. On some views, both traditional and recent, justice b~ yond boundaries is an important topic, but a theory of justice should nevertheless begin with an account of a just community, society or state, and only then proceed as a second chapter to an account of justice across boundaries. On other views, beginning with an account of justice within boundaries may compromise or even vitiate any subsequent attempt to provide a convincing account of justice beyond boundaries. These issues might be addressed in many ways. In this lecture I shall try to say something about the starting points that we might choose for an account of justice that can cross boundaries. I shall look briefly at some of the implications of a communitarian starting point, but my main focus will be on two very different conceptions of' public reason' which might provide starting points for an account of justice. One is used by .John Rawls both in Political Liberalism (1993) and in The Ltzw of Peoples (1999); the other was proposed by Kant in a number of works, but in particular in his later political writings. Rawls and K.'lnt each advance what may be loosely called a semi- cosmopolitan view of justice: neither endorses a world state, but each thinks that there is more to justice than 'domestic' or 'internal' jus- tice. I shall not however say very much about the specific institutional proposals for international justice Rawls and Kant put forward. There are two reasons for this. The main one is that comparisons between proposals that address such different worlds may mislead. Kant's pro- posals were in their day a remarkable blend of realism and radical think- ing. Writing at time when there were few republican states and no full 3 democracies, he proposes a league of republican states which ac- knowledge certain rights not only for their own citizens but for oth- ers. By contrast, Rawls's proposals for justice across boundaries are quite conservative. Writing at a time at which the United Nations and its or- ganisations, the world bank and various international courts all exist, he suggests that international justice will require these sorts of insti- tutions. My second reason for saying rather little about the specifici- ties is that much has already been said-by Habermas, by Pogge and by many others. 3 But in my view rather little has been said about the respective starting points, so it is to these that I shall tum. For reasons that will become clear, I shall discuss Rawls before Kant. 3 Communitarians and Justice beyond Boundaries Before turning to Rawls, it is useful to call to mind the communi- tarian views he opposes. A merit of communitarian thought is that it incorporates a strong view of the basis of practical reasoning, which it views as grounded in the categories, norms and practices of actual com- munities and their cultures. Altltough this move may seem arbitrary from the point of view of outsiders, it is anchored in a conception of human identity as shaped by the constitutive norms and practices of the communities and traditions of which a given individual is part, and so offers substantial premises for working out an account of justice and other normative issues appropriate to that community. These norms and practices are, to use a useful Hegelian phrase, seen as nichl hinter- gehbar: there is no going behind them. Since they are constitutive of the identity of the community or tradition, and so ofits members, there is no deeper range of premises which could provide the basis for chal- lenging these norms. Communitarians are not unaware of the possibility that the con- stitutive norms of communities and traditions may change, indeed be changed by those within a community. They see the categories and values of communities as open to revision in the light of its internal conceptual resources. Hence it would be a mistake to think that com- munitarian reasoning is inevitably conservative. However, I believe that it would not be mistaken to think that reasoning that proceeds within the constraints set by the categories, norms and other resources of a community or tradition must inevitably be ethnocentric. Communi- tarian reasoning is inevitably insiders' reasoning, and takes no account of the categories, tlte concerns or the views of outsiders. This does not, of course, mean that communitarians can have no view of the proper treatment of out'iiders: they might be convinced of the merits of ex- 4 elusion or of integration, of neglect or of assimilation, or perhaps (more worryingly) of marginalisation, colonisation or extermination. However, they do not think that there could be reasoned dialogue with unassimilated outsiders, with whom neither categories nor norms, nor therefore the means of reasoning, are shared. Although communitarians take a realistic view of the possibilities for change within any given tradition, I believe that they take an un- realistic view of the boundaries between traditions and communities. Political boundaries form highly variable filters; the cultural bound- aries which communitarian reasoning is chiefly concerned with are yet more diverse and malleable. Many people are inward with thecate- gories and norms of a number of traditions; those who arc not initially familiar with the thought of some community can often grasp a good deal about others' categories and norms, and therefore about their rea- soning. (For evidence consider the amazing spread of the rhetoric of rights). Sense of identity is not invariably anchored in the actual norms and categories of a single community; even where it is, the ways of thought and life of that community may allow understanding of and by a fair range of outo;iders. Like the rest of us, communitarians in fact hold that foreigners and other culmral outsiders are persons with whom we can communicate if not perfectly still a great deal, and that trade and translation, travel and collaboration are real possibilities. In my view these everyday assumptions undermine the plausibility of any communitarian conception of practical reason and show that it does not offer a convincing basis for reasoning either about domestic jus- tice or about justice beyond boundaries. However, reasoning that does not invoke culturally specific cate- gories and norms will be considerably impoverished. It is not obvious what alternative premises for practical reasoning will be available. Once we allow that not all reasoning about justice can take advantage of the rich conceptual resources of a tradition or community we must look for an alternative account of practical reason. One obvious di- rection in which to look is at john Rawls's work, and in particular at his later work, in which he both advances a conception of practical rea- son as public reason and addresses the question of justice beyond boundaries. 4 Rawls on Public Reason In Political Liberali.sm and in The Law of Peoples, which includes a sep- arate essay on 'The Idea of Public Reason',john Rawls explicitly re- jects the underlying assumption of the communitarian pr~jcct: 5 "pluralism is not seen as a disaster but rather as the natural outcome of human reason under enduring free institutions".4 If this is the case, there will be no way to identify constitutive categories and norms for the very units for which Rawls thinks questions of justice primarily arise. justice, as he sees it, has its context in a "bounded society", a perpet- ually continuing scheme of co-operation which persons enter only by birth and leave only by death, and which is self-sufficient. 5 Within each bounded society, reasonable persons will not come to complete agree- ment about ethical matters and may be expected to form differing 'con- ceptions of the good'. However, as reasonable they may be expected to accept a form of reciprocity, namely to be "ready to propose prin- ciples and standards as fair terms of co-operation and to abide by them willingly, given the assurance that others will likewise do so".6 Rea- sonable persons are committed to a conception of public reason, and prepared to work out the framework for the public social world they share, to construct the principles of justice by which they will live to- gether despite irresolvable ethical disagreements. Public reason, as Rawls construes it, is "citizens' reasoning in the public forum about consti- tutional essentials and basic questions ofjustice".7 Evidently this con- ception of public reason as reciprocity between fellow citizens presupposes the constitutive institutions which define fellow citizen- ship: the bounded society, the constitutional basis of citizenship (lib- eral rights and democracy in Rawls's account). This essentially civic conception of public reason is coupled with what we might view as an associative conception of practical reasoning for lesser spheres (Rawls calls this 'non-public reason'; his thought is close to Kant's views on 'private reason ') 8 • In short, although Rawls's conception of public rea- son in Political Liberalism does not assume the shared culture that communitarian reasoning presupposes, it does presuppose shared political arrangements, including boundaries, liberal democracy, and citizenship. It is a nice question whether the boundaries that are pre- supposed are-contrary to Rawls's intentions-in fact state boundaries. On the one hand he claims only to presuppose a 'bounded society', on the other hand the assumption that nobody enters except by birth or leaves except by death suggests that the boundaries of such a polity are well policed, that force is exercised, indeed monopolised, within the territory in question. And this is the Weberian definition of a state. These issues are discussed in more detail in Rawls's Tile Law of Peo- ples. Here he argues that issues of justice beyond boundaries are to be approached by considering public reasoning as conducted by peoples. He rejects both the communitarian thought that the basis of reason- 6 ing is to be culturally defined (a community, a tradition), and the thought that the parties who consider justice beyond boundaries are to be thought of either as individuals or as states.9 Liberal peoples are thought of as inhabiting their own territories, and as negotiating stand- ards of international justice (here the term may be apt) with other lib- eral peoples, as well as with those non-liberal peoples who have what Rawls calls a 'decent hierarchical society'. Rawls believes that the prin- ciples that would be mutually accepted will include those of non-ag- gression, non-intervention except in self defence (and sparingly to end grave violations of human rights) .10 He also thinks that reasonable peo- ples are likely to agree on some version of the UN organisations, some form of World Bank and some form of global trade agreement. 11 Rea- sonable peoples also, he thinks, have some duty to help heavily bur- dened societies, so that all have the means of life; but the difference principle is not to be extended intemationally. 12 Since the procedures ofRawlsian public reasoning are specified only in very general terms, it is hard to be sure whether or in what conditions there would be mu- tual agreement on these or other specific arrangements; in particular it is hard to see whether and why reasonable peoples would not agree to a more extended view of duties of richer towards towards poorer societies. The conception of the state that Rawls rejects in The Law of Peoples is in my view indeed a pretty unpromising basis for any account of jus- tice beyond boundaries. What he rejects is the realist conception of states as "anxiously concerned with their power-their capacity (mil- itary, economic, diplomatic)-to influence others and always guided by their basic interests". 13 However, this has always been an idealised, indeed ideologised conception of the state, and it is certainly not the only option. In fact, the conception of a 'people' on which Rawls builds his ac- count of justice beyond boundaries is a remarkably state-like concep- tion, based on the protection of territory and self-interest: Liberal peoples do, however, have their fundamental interests as permitted by their conceptions of right and justice. They seek to protect their territory, to ensure the security and safety of their citizens, and to preserve their free political institutions and the liberties and free culture of their civil society. 14 Evidently Rawls conceives of peoples as politically organised, and as able to appoint representatives15 through whom they are to reason about justice beyond boundaries. In short, peoples are conceived as 7 having all the powers capacities and features of states, apart from one very specific feature: What distinguishes peoples from states- and this is crucial- is that just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equal. 16 In Rawls's view, peoples can be reasonable, but states are wedded to rational self-interest. Rawls's choice of peoples rather than states as the agents whose de- liberations are basic to justice beyond boundaries is, I think, motivated in large part by the inaccurate assumption that states must be ideal typ- ical structures that fit the realist paradigm. Yet states as we have actu- ally known them have always fallen far short of that paradigm. 17 The conception of states and governments as having limited powers, and as observing certain fundamental principles over and above the pur- suit of rational self-interest, is part and parcel of the liberal tradition of political philosophy, and central to contemporary international politics. States as they have really existed and exist never had and never have unlimited sovereignty, internal or external-although some the- orists of sovereignty, some proponents of strategic reasoning, some hawks in powerful states, and some romantic nationalists without powerful states have made grandiose claims. States a.s they currently exist are com- mitted by numerous treaty obligations to a limited conception of sov- ereignty, and there is nothing contradictory about this commitment, although like other commitments it is sometimes not honoured. Peo- ples, as they may once have existed independently of state structures prob- ably did not have bounded territories; those peoples who have the means to negotiate with other peoples, to keep outsiders out and to make agree- ments, have them because they have state and governmental structures. It is not hard to see what leads Rawls to this quite distinctive view of the basis for thinking about international justice. Since he has pro- posed an account of public reason that focuses on the notion of reci- procity among agents, he has to determine who tl1e relevant agents shall be, among whom reciprocity is to be achieved, or not. Since he as- sumes that the only conception of the state is the realist conception, according to which states act solely from self interest and will not be capable of reciprocity, these agents cannot be states. By default, the reasonable agents who arc to carry the burden of international nego- tiation across boundaries are seen as peoples. Yet in reality the only peoples who have firm boundaries and the capacity to negotiate with outsiders on a sustained and perhaps reasonable basis are those peo- 8 pies with states. There is something laborious about anchoring an ac- count of reasoning to a conception of territorial agents who may not be well exemplified in our world, and if they were exemplified would acquire the political capacities Rawls imputes to them only through state and governmental structures which his argument rejects. 5 Kant: Public Reason as Non-Derivative Rawls views his philosophy ao; in many w·.tys Kantian, and makes fre- quent references to Kant's in his writing on justice across boundaries. However, he also, and in my view rightly, distances his work from .Kant's. In 11u? Law of Peopks he writes: Since my presentation of the Law of Peoples is greatly indebted to Kant's idea of Joedus jmcificum and to so much in his thought, I should say the following: at no point are we deducing the prin- ciples of right and justice, or decency, or the principles of ra- tionality, from a conception of practical reason in the background. Rather, we are gi\ing content to an idea of prac- tical reason and three of its component parts, the ideas of rea- sonableness, decency and rationality. The criteria for these three normative ideas are not deduced, but enumerated and char- acterized in each case. Practical reasoning as such is simply rea- soning about what to do, or reasoning about what institutions and policies are reasonable, decent, or rational and why. There is no list of necessary or sufficient conditions for each of these three ideas ... Ill As Rawls sees it, Kant's reliance on an account of practical reason has unacceptable metaphysical presuppositions. 19 Kant, by contrast, does seck to derive his account of justice from an account of practical reason. But I do not think that it follows that Kant's conceptions of ethics, of justice and of international justice must be derived from transcendental idealism under a strongly metaphysical interpretation. Kant's writings on public reason provide relatively accessible argu- ments which do not draw on metaphysical ao;sumptions, yet aim to vin- dicate a specific conception of practical reason: they can be given, indeed they invite, an anti-metaphysical reading. 211 The central thought of Kant's account of public reason is that the standards of reason cannot be derivative. Any appeal to other, exter- nal authorities to buttress our reasoning must fail. Just as a learner cy- clist who clutches at passing ol~ccts and leans on them to gain his balance thereby fails to balance at all, so a would-be reasoner who leans on some 9 socially or civilly constituted power and authority which lacks reasoned vindication fails to reason. This view is explicit in the quite distinctive way that Kant characterises the difference between his conceptions of publicand private uses of rea- son in various works of the 1780's and 1790's.21 Here I shall refer only to two short essays of the 1780's, neglecting other extended discussions of public and private reason.22 In these writings Kant characterises uses of reason that appeal to rationally ungrounded assumptions, such as the civilly constituted authority of Church or state, not as public but as private. In What is enlightenment? he speaks of the reasoning of military officers, of pastors of the established Church and of civil servants in car- rying out their roles as private. these functionaries derive their author- ity from their civil or public office, and their official communications assume without argument the authority and the edicts of that civil power and the rules of office that it has instituted. Kant states quite ex- plicitly that "the private use of reason is that which one may make ofit in a certain civil post or office with which he is entrusted" 23 It follows that the sorts of reasoning exhibited in democratic political debate and in communitarian thought. as well as in the civic reasoning Rawls com- mends, are all in Kant's view private, or at least as not fully public, because each appeals to the authority of civilly and socially constituted roles, institutions and practices. Rawlsian peoples are not in fact identifiable independently of the constitutive institutional structures that secure their territories, distinguish citizen from non-citizen, and enable their dem- ocratic government, including that part of democratic government which counts as foreign policy: hence Kant would see their reasoning as less than fully public. Kant himself offers a quite different view of (fully) public reason as intrinsically non-derivative. He contrasts all 'private' uses of reason with "the public use of one's own reason ... which someone makes of it as a scholar before the entire public of the world ofreaders",24 a scholar "who by his writings speaks to the public in the strict sense, that is, the world".25 In these and many other texts Kant sets out a dilemma. If we ap- peal to any civilly or socially constituted powers or authorities, let alone to mere brute force-if we try to constrain or control attempts to reason-we lose the very justifications we seek. Discourse that is sub- ordinated to authorities that lack reasoned vindication achieves at best restricted scope and authority. Those who buttress their conclu- sions by appealing to authorities they do not vindicate end up relying on the dubious merits of an argument from authority. 10 6 Kant: Public Reason as Freedom without Lawlessness Kant's criticism of private uses of reason is both convincing and pro~ lematic. It is convincing because it is clear enough what the appeal to contingently available authorities amounts to-the introduction of some arbitrary premise asserting the claims of that authority; and dear enough what it costs-the relativisation of conclusions to that arbitrary premise. It is easy to agree that reasoning is limited as soon as it is be- holden to any civilly constituted authority, indeed to any contingent power or authority for which no justification is provided, and that this independence is the condition of reaching audiences of wider scope. It is easy to see how this Kantian criticism of private reason can be ex- tended to undermine attempts to develop democratic, communitarian and even Rawlsian-in short, civic-conceptions of public reason. However, it is less easy to understand what we are going to be left with when all appeal to 'alien' authorities is set aside. Kant's favoured image of public reason is scholarly communication with the world at large. It has evident limitations. Perhaps Kant could find no better image of non-derivative reasoning than tl1is; but we are more suspicious, and in my view rightly suspicious, about the relations between power and knowledge. Practices of scholarly communication include and ex- dude, highlight and suppress. Can we seriously expect to find or to live by communicative practices which are do not introduce unargued assumptions-even if these assumptions change through history? (I personally doubt whether the much heralded emerging global com- munication regime, which some see as the basis for a deeper democ- ratisation of political life, lives up the Kantian ideal of public reason any better than the communication among scholars to which Kant pointo;.) Can we expect to say anytllingabout the requirements of reasoned communication, other than making the negative point that it fails wher- ever it merely defers to the edicts and assumptions of civil or other powers or authorities? Reasoning surely cannot be merely a matter of discourse that does not defer-for if this were the case, every sort of gibberish and incoherence would count as reasoned, provided only that it does not draw on the authority or edict<> of whatever pow- ers there be. Clearly K.mt thinks that we can say more about the demands ofpu~ lie reason. He never maintains that reasoning has merely to be free and non-deferential. He seto; out the other requirements of reasoning rather clearly in 'What does it mean to orient oneself in thinking?, which was pu~ lished quite soon after What is enlightenment?. In the second essay he 11 argues that nothing could deserve to be called reason if it was wholly without structure and discipline, because a minimal condition for any discourse to count as reasoned is that it be communicable. Reasons arc the sorts of things that we give and receive, accept or refuse. He re- jects the idea that reasons could be devised by the arbitrary fiat of in- dividual reasoners: ... how much and how correctly would we think if we did not think as it were in community with others to whom we communicate our thoughts, and who communicate theirs with us! 26 The standards of reason cannot be found in solitary thinking: on the contrary those who seek to reason must structure their thought, speech and communication in ways that others can follow. At times Kant uses a fiercely sarcastic rhetoric27 to chastise those who try to purvey the illusion that reasoning could be ·without all struc- ture or discipline and delude themselves that this 'lawless' freedom will be liberating. He had clear targets in mind, including the fans of re- ligious enthusiasm (Schwarmerei) and of exaggerated views of the powers of genius; today his targets might include a fair range of post- modernists, new-agers and deconstructionists. In each case he believes that the opponents of reason fail to see that the unstructured libera- tion of thought and discourse which they crave will be a disaster: .. .if reason will not subject itself to the laws it gives itself, it has to bow under the yoke oflaws given by another; for without law, nothing-not even nonsense-can play its game for long. Thus the unavoidable consequence of declared lawlessness in think- ing (ofliberation from the limitations of reason) is that the free- dom to think will ultimately be forfeited ... 28 The illusions of 'lawless' thinking end, Kant thinks, not merely in intellectual confusion, but in lack of defences against the very sorts of deference and subordination which enthusiasts for lawless thinking wish to escape. Because anarchic, 'lawless' thinking is no more than bab- ble, it is defenceless in the face of the claims of superstition, of en- thusiasm and of religious and political dogma. 7 Kant: Public Reason as Law-like If 'lawless' thinking ends not in freedom of thought and commu- nication, but in gibberish and isolation, even in superstition and cog- nitive disorientation, whose political consequences include vulnerability to tyrants and demagogues, then any activity in human life that can 12 count as reasoned must be structured. This structure must enable us to distinguish good reasons from poor reasons, to decide which we ought to accept and which we ought to reject. Reasoning whether the- oretical or practical will lack authority and normative force if it has no stnacture by which this distinction can be made So if anything is to count as more than 'priv.ne' reason, in Kant's sense of the term, if there is to be anything that is to count as fully public reason, then it must have a structure which it does not derive from existing institutions and practices. What then can provide the intemal, non-derivative discipline or structure of fully public reasoning? K.mt's answer is straightfor- ward: Freedom in thinking signifies the subjection of reason to no laws expect tluue which it gives itself; and its opposite is the maxim of a lawless use of reason ... 29 Public uses of reason must have law-like rather than lawless struc- ture, but since they are not to derive their law-likeness from any ex- temal sources, it will have to be freely chosen: the discipline of reason is that of self-kgislatio11 or autorwmy. Kant's identification of reason with autonomy is initially starding, despite the fact that the Groundwork of the Metaphysic of Morals makes it plain that practical reason is to be identified with autonomy.:lll The reason that it is startling is surely that the contemporary conception of autonomy identifies it with independence rather than with reason. Kant, however, never equates autonomy with mere freedom or with independence.31 Unlike most recent 'Kantian' writers (and many of their critics), he views autonomy or self legislation as emphasising not some (rather amazing sort oj) self that does the legislati11g, but rather legisla- tion that is not borrowed from others, that is 110t clerivalive, that is therefore freely chosen, lmd yet has the fonn of law. Non-derivative 'legislation' can- not require us to adopt the actual laws or rules of some institution or authority; it can be only a matter of requiring .that any principle we use to structure thought or action be law-like, that it have 'the form of law'. Only those who freely choose principles that have the 'form of law' meet the demands of Kantian autonomy; only they show com- mitment to public reason. This is why Kmn can write: Now the power to judge autonomously-that is, freely (ac- cording to principles of thought in general)-is called rea- son.32 Another way of making the same point is to note d1at Kant identi- 13 fies public reason with a double modal criterion: with the requirement of structuring our discourse in ways in which (we believe) others can follow. A general statement of this criterion can be found at the end of What does it mean to orient oneself in thinking?, where Kant identifies reasoning with the practice of adopting principles of thinking and act- ing that have the form oflaw, which can be adopted by all: To make use of one's own reason means no more than to ask oneself, whenever one is supposed to assume something, whether one could find it feasible to make the ground or the rule on which one assumes it into a universal principle for the use of reason.33 We are most of us more familiar with a restricted version of this principle, formulated specifically for the domain of action, which Kant labels 'the supreme principal of practical reason' or 'the Categorical Imperative'. The best known of these more restricted formulations is the Formula of Universal Law version of the Categorical Imperative, whose double modal structure is particularly plain: 'act only in accord- ance with that maxim through which you can at the same time wiU that it be- come a universal law'. 34 8 Kant and Domestic Justice Where does this account of the vindication of practical reason take Kant's account of justice, and specifically of justice beyond boundaries? I shall first comment briefly of Kant's account of domestic or 'inter- nal' justice. His justification of political institutions does not appeal simply to a version of social contract35 or contractarian thought but to a more abstract Universal Principle of justice. A particularly clear for- mulation of this principle is given early in the Doctrine of Right (the first part of the Metaphysics of Morals). It runs: Any action is rigid if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in ac- cordance with a universallaw.36 The Universal Principle of justice makes no explicit reference to con- sent. Its justification lies rather in its relationship to the formulae of the Categorical Imperative, and so to Kant's vindication of practical reason as grounded in the necessary conditions for any possible fully public reasoning. Kant's argument for justice begins simply from the requirement that reason be fully public, in the sense that it never in- 14 voke arbitrary authority, hence can be followed in thought or adopted in action by all, without presupposing any pre-established agreement, shared ideology or religion or other given source of coordination. The most familiar statement of this requirement for the domain of practical reason is the Formula of Universal Law version of the Cat- egorical Imperative. This principle covers maxims-practical princi- ples-for all sorts of action, inward and outward, personal and public. By contrast the Universal Principle of Justice is restricted in two ways. First, it is concerned only with maxims for outward action, that is with the aspects of action which could be enforced (hence not, for example, with maxims for virtue or with moral worth). Second, it is concerned only with maxims for structuring individuals' external freedom, that is with maxims for shaping the public domain, so not with maxims for other outward aspects of individual conduct, such as the outward as- pects of duties to self or personal relations. The Universal Principle of Justice requires the rejection of any basic maxims for structuring the domain of the external use of freedom which could not be adopted by all. Kant thinks that the implementation of this principle in the actual conditions in which we live is not straightforward. We find ourselves living on a spherical and finite globe that brings us into contact with others and competing with them for scarce resources; and we are not reliably altruistic.37 In our world external freedom will therefore be insecure without at least a limited form of coercion, aimed at 'hindering the hindrances of freedom'. In these conditions the Universal Princi- ple of Justice can be best implemented by establishing states with re- publican constitutions, which guarantee freedom within the law at least within a certain territories, although they can do so only by coercive use of a conditional form of state power. Kant justifies state power not as an intrinsic requirement of justice, but as the compromise which we have to make under actual conditions. A succinct formulation of this compromise is given in Kant's state- ment of the elements of a republican constitution: A constitution established, first on principles of the freedom of the member of a society ... second on principles ofthe dependence of all upon a single common legislation ... third, on the law of their equality (as citizens of a state)-thc sole constitution ... on which all rightful legislation of a people must be based-is a re- publican constitution.38 15 Republican justice is evidently not democratic justice, but I do not think it is trivial. Consider how much it rules out. Societies or states which do not secure the rule of law (anarchic or despotic societies) undermine or jeopardise external freedom for some or for all, so base their constitution on a principle which cannot be a principle for all and are unjust. Societies or states which leave some persons above or outside the law (monarchies, dictatorships, states within states, slave states) undermine or jeopardise external freedom for some or for all, so base their constitution on a principle which cannot be a principle for all, so are unjust. Societies or states which do not secure equality of status for all citizens under law (feudalism, caste societies, patriar- chal societies) undermine or jeopardise external freedom for some or for all, so base their constitution on a principle which cannot be a prin- ciple for all, so are unjust. It may be that Kant's account of domestic justice could be improved by showing that the abolition of gender discrimination and the institution of full democracy are also compo- nents of a just constitution. 9 Kant On Justice Beyond Boundaries. I want now to indicate quite briefly some advantages of an ap- proach to justice across boundaries based on Kant's conception of pub- lic reason. The first advantage is that his conception of public reason does not presuppose the status quo; it merely insists on the modal con- ditions that all discourse must meet if it is to be fully public. If any- thing can count as a vindication of reason, as opposed to mere assertion that something is reasonable because it is liked, or accepted, even liked or accepted by lots of people, or even by a people, this seems to me the most promising strategy. The second advantage is a corollary of the first. Because he has offered a vindication of reason, Kant has no need to presuppose any institutional structures in arguing for the basic principles of justice: he can address the agenda of seeing which principles would and which would not be reasonable without begging questions. In Kant's thought human rights, democracy, state power and (some sorts of) boundaries arc The approach has several further advantages. Kant docs not ground his account of justice in the realist conception of the state, with its eth- ically disreputable disregard of the moral standing of some of those with whom we in fact interact across boundaries, and to whose suffer- ing we may contribute. Nor does he argue for a merely abstract cos- mopolitanism.39 Nor does he anchor justice in the puzzling conception 16 of a tenitorial people who lack a state but police their boundaries tightly. For Kant an account of a just world-of a form of cosmopolitan justice in which boundaries may not be absent, but must be shown not to inflict injustice-begins with an account of the reasons we have for seeking principles that could be adopted by all. The Universal Prin- ciple of justice formulates this requirement specifically for the public domain-the domain in which conflict is least avoidable-and legit- imates constitutionally limited forms of state power within bounded territories. However, since there is no antecedent reason for think- ing that states must be anything like those about which realists fan- tasise, the way is left open for considering which sorts of interaction between all agents, including states, are compatible with justice and which are not. In my view this may provide a better starting point for thinking about justice beyond boundaries than the one Rawls offers, not only because the Kant's strategy of vindication aims deeper, but because it is more realistic and more open. The greater realism lies in the clear ac- knowledgment that republican states are not in themselves just: they are a compromise we have to make in order to start securing freedom under real world conditions. By the same token the boundaries of these states are not intrinsically just: the particular filters they institu- tionalise, the inclusions and the exclusions, the domination and the subordination which they secure, may constitute unjust action towards outsiders. If boundaries are a requirement of realism in the conduct of life, their construction and adjustment and the sorts of filters that they institutionalised is a matter of justice. In the world as we now know it, state boundaries are porous not in all but in many ways: they arc for the most part fairly porous to trans- fers of goods and capital, communications, technologies, and rather less so to cultures and religions. The respects in which they arc least porous are to flows of people and of public finance. However, for Kant the status quo is never the end of the story. If we can find more just ways in which to structure boundaries in the world as it actually is, this will be a better implementation of the Universal Principle ojjustire. In the meantime we should not deceh•e ourselves by imagining that the power relations between states are exempt from considerations of jus- tice, or that the degree of cosmopolitan justice we have established at the start of the twenty first century is all that might be achieved. 17 NoTES I. john Rawls, A Thtory of]usti« Harvard Uni\•crsity Press, Cambridge, Mass., 1971, 3; in later writings Rawls has increasingly emphasised the specifically political charac- ter of reasoning about justice. References to and quotations from Rawls's writings will use the following abbreviations: A Throry of]ustia: 7]; Political LiM-a/ism, Columbia Uni- versity Press, New York, 1993: PL; TM Laru of Peopla, Harvard University Press, Cambridge, Mass, 1999: LP. 2. Compare the boundaries of Europe in 1950 and in 2000: few have changed their location; all have become more porous to more activities and more sons of people. 3.ji'trgen Habermas, 'Kant's Idea of Perpetual Peace, Y.ith the Benefit ofTwo Hun- dred Year's Hindsight' in james Bohman and Matthias Lutz-Bachmann, eds., Perpttual Peace: &says on Kant's Cosmopolitan Ideal, MIT Press, Cambridge, Mass., 1997, 113-153; Thomas Pogge, 'An Egalitarian Law of Peoples', Philosopliy and Public Affairs, 23, 1994, 195-224. 4.John Rawls, Pl., Columbia Uni,·ersity Press, New York, 1993, xxiv; cf. 47, 55. 3; LP31- 2; .'The Idea of Public Reason' (included in IP) 131. 5. This formulation is to be found throughout Tf, in later works the emphasis on bounded societies continues, but their liberal democracy and the citizenship of their members arc increasingly emphasised; these shifts arc corollaries of Rawls's shift to 'po- litical' justification. 6. PL 49; see also the note on this page. 7. PL 10; cf2121T. and LP 132-3. 8. For Rawls's views on non-public reasoning see PL 213fT., esp. 220-22 and l.P 134; for Kant's views on public and priv.tte reason, sec section 8 below. 9. PL 18; LP23-30. 10. LP35. II.IP38. 12. IP 115-119; for contrary views see Charles Beitz, Political Thtory and lnlmlational &lations, Princeton University Press, Princeton,l979 and Thomas Poggc, 'An Egalitarian Law of Peoples', Philosophy and Public Affairs, 23, 1994, 195-224. 13. LP28. 14./J>29. Note also the folloY.ing: 11te point of the institution of property is that, unless a definite agent is gi\"en responsibility for maintaining an asset ... that asset tends to deteriorate. In this case the asset is the people's territory and its capacity to support them in perpetuity; and the agent is the people themselves as politically organised", IP 39. 15. /J>32, 34. 16. LP35. 17. Titeorists of international relations acknowledge that many of the states we see around us fall far short of the realist paradigm of statehood: they speak of quasi-states and dependent states; Rawls acknowledges that realism about st;Ue action is false-yet leaves realists in possession of conceptions of the state, see /.P 46. 18./.P86-7 19. For a discussion of some of Rawls's reasons for distancing himself from Kant, and some of the ways in which he arri\'CS at a \"Cry weak conception of public re-dSOn see Titomas McCarthy, 'A Reasonable Law of Peoples' in James Bohman and Matthias Lutz-Bach- mann Perpetual Ptau: Essays on Ka11t's Cosmopolitar~ldral, MIT Press, Cambridge, Mass., 1997, 201-217. For further suggestions for an anti-foundationalist reading of Kant's \indication of reason see Onora O'Neill, Constnutions of&ason: Explomtions of Kant's Proc- tiral PMiosophy, C.ambridge University Press, Cambridge, 1989, especiall)· the first two papcrs, and 'Vindicating Reason' in Paul Guyer, ed., TM Cambridgr Companion to Ka11t, Cambridge University Press, Cambridge, 1992, 280-308. 18 20. Kant presents other arguments for the non-<lerh<llive character of reason which make no use of the conception of public reason. In various texts he leans more heav- ily on terms such as llt'gative self-disrifJlirlt', self -legislation, authentic interfmlation and au· tonotny. 21. All references to Kant's works and all quotations are taken from the Cambridgr Edition of tht' Worlu of /mmmrut'l Kant, ed. Paul Guyer and Allen J. Wood, Cambridge U ni· versity Press, ("..ambridge. The rele\-ant volumes arc 7711' Critique of Pttrr Rt'ason, tr. Paul Guyer and Allen J. Wood, 1998; Prartirnl Philo.wphy, tr. Mary J. Gregor, 1 ~)96; Rrligion mrd &tional11rtology, tr. AllenJ. Wood and George Givoanni, 1996. The volume and page references are to the Prussian Academy edition; they arc included in the margins of the Cambridge edition. TI1e following <Jbbrcviations arc ll.';ed: Thl' Critiqut of Pure Rra.wn: CPR (1781); What is enlightnr ment1: 1\7-: (1784); Gnnmdwork of Thnnl'laphysic of morals: G ( 1785); Tht' rntlaphysir.s of morals: MM ( ( 1797); Tormrd pnpttual pau: PJ> ( 1795); \Wwt dOI'.s it mmn to orimt orrrsrlfin thinking7: WO ( 1786); Rrligiotr withi11thl' bormdarie.s of mnr reason: R ( 1793); 11re mrrjlicl of lht fanrllifs: CF ( 1798). 22.ln particular,! shall say nothing about Kant's discussion of public and private uses of reason in the interpretation of Scripture, which is a major theme of Cf"and discussed using closely related terms in R. 23. \\7·:8:37. 24. l\7~"8:37 25. \~"8:38 26. W08:144 27. As those who seck to reason with post-modernists often discover, rhetoric is the only remaining \~-ay to engage. 28. \\'08:145 29. wo 8:145. 30. Sec especially (; 4:440. 31. K.,nt does think that Yarious sprrijicforms of independence arc important-but they arc quite different from Kantian ;uuonomy. A just, republican state is one where independence of action is safeguarded by the fact that nobody is either outside or abo,·e the law; acti\·c citizens need a degree of economic independence (Sclbstst.indigkcit). 32. (Jo"7:27. 33. WO 8: 146n. 34. G4:421 35. For Kant the term'social conu-.Jct' refers not to the fundamental principle of po- litical justification, but to a specific step in the dcrh-ation of an account of just institu- tions from the Uni\"ersal Principle of justice. Unlike that principle, the idea of the social contract takes cognizance of historically specific conditions, l<•r example of the fact that we live with moderate scarcity and limited altmism yet in mutual proximity. Hence in our world the social contract has to accept state coercion, but can require state struc- tures to t<1kc a republican form. Sec Onora O'Neill, 'Kant and the Social Contract Tra· dition', in Claude Picht!. ed., (E.'Isays in honour of Pierre l..abcrge: title to be supplied) forthcoming. 36. MM 6: 230. 37. For K.,nt the bounded globe rather than bounded societies arc limrlamentally significant for justice. 38.1'1>8:350; cf. MM6:340. 39. Thomas Pogge, 'Cosmopolit.,nism and Sovereignty', Ethirs, 103, 1992,48-75. 19 i\ The following lectures have been published in individual pamphl et fo1m and may be obta in ed from the Deparlme n tat a price of S2.50 plus $ 1.00 for ha ndling ($3.50 per lcciU re) . * 1961. ·~rhe Id ea of Man-An Outline ofPhilosophical Anthropol ogy. ~ By .J ose Fcrrater Mora, Professor of Philosoph y, Bryn Mawr College. 1962. ''Changes in Eve nts and Changes in Things. ~ By A. N. Prior. Professor of Phil osophy, University of Manchester. *t 1963. "~lora ! Philosophy and the Analysis of Language.~ By Richard B. Br;mdt, Professor of Philosophy, Swarthmore College. *t l 964. ~Hum<tn Freedom and th e Self. " By Rode lick M. Chisholm. ProfessorofPhi1osophy, Brown University. t 1965. ..Freedom of Mi nd.~ By Stu an Hampshire. Professor of Philosophy, Princeton Un iversity. *t l 966 ... Some Beliefs about justice.'' By William K. Frankena, Professor ofPhilosophy, Uni\'ersity of Michi- gan. t l 967. ~Fom1 and Content in Ethical Th eory.'' By Wilfrid Sell ars, Professor of Philosophy, U nive rsity of Pittsburgh. t 1968. ''Th e Systematic Unit)' ofValue." By.J. N. Findlay, Clark Professo r of Philosoph y, Yale University. 1969. ..Suber and Buberism-A Critical Ev-a luation. " By Paul Edwards, Professor of Philosophy, Brooklyn College of the City Un ive rsity of New York. 197 1. ''What Actually Happened.~ By P. II. Nowell..Sinith , Professor of Philosophy, York University. t 1972. "Mora l Rationality." By Ala n Gcwirth, Professor of Philoso phy, University of Chicago. t 1973. "Reflectio ns on Evil. •· By Alben Hofstadtcr, Professor of Philosophy, University of Califor- ni a, Santa Cruz t t t974. "What is Dialectical?" By Paul Ricocur, Professo r ofPhilosophy, University ofParis and Uni- ve•·sity o f Chi cago. tt 1975. "Some Confi.1sion s About Subjectivity." By R. M. Harc, Whitc's Professor of Moral Philosophy at Oxford University and Fe llow of Corpus Christi College. 1976. "Sclf~Dcfcnse and Rig hts. •· By judith J arvis Thomson , Pro lessor of Philosophy, Massachusetts In- stitute ofTcchnology. J977. "'NIHil is Hum anism?" By Georg Hcnrik von Wright, Research Professor of Philosophy, The Academy of Fi nla nd. 1978. "Moral Rel ativism ." By Philippa Foot, Sen ior Research Fellow, Some1-ville College, Ox- ford; a nd Professor of Philosophy. University of California, Los An- geles. 1979. "The Idea of 1 he Obscene." By j oel Feinbe rg, Professor of Philosophy, University of Arizona. 1980. "Goods Beyond Price and Othe•· Apparent Anachronisms .. , By \Varner Wick. Professor of Philosophy. University of Chicago. 1981. "Morality, Properl)' and Slavery." gy Alan Donagan, Professor of Philosophy, Un ive rsity of Chicago. (continued, back cover) l'.unphlt:l Ollt or print . t Rcprin1cd in Frm!om tmd M"mlll]. I I Prin ted tUII) i11 , .. ,.mlmn rmd Mmnlil) . 1982. "Ex pressing Evaluations." By Do nald Davidson , Professo r of Philosophy, University of Cali for- nia, Berke ley. 1983. "H ow Not to Solve Ethical Proble ms." By Hila ry Pu tnam , Professor of Philosophy, H arvar d University. 1984. "Is Patriotism a Vir tue? " By AJasda ir Ma cintyre, W. Alton j ones Professor of Philoso phy, Van - derbilt Un iversity. 1985. "How Free Does the Will Need to Be?" By Bernard Wi ll iam s, Provost of King's College Cambridge . 1986. "Mo ral Agent and Impa rtial Spectator." By Gilbert Hannan, Professor of Philosophy, Pr inceton University. 1987. "Prqjection a nd T ruth in Ethics." By j o hn McDowell, Professor of Philosophy, University of Pittsburgh. 1988. ''The Po litics of Imagina tio n. " By Arthur Da m o, Professor of Philosophy, Columbia University. 1989. "Constituting Democracy." By David Gauthi er, Distinguished Service Professor of Philosophy, Uni- versity of Pittsbu1·gh . 1990. 'Justice a nd th e Good Life." By Ro na ld Dworkin , Professor of.Ju risprude nce, Oxford University, New York University Law School. 1991. "Equa lity o r Priority?'' By Derek Parfh, Professor ofPhilosophy, All Souls College, Oxfo rd, Harvard Unive rsity. 1992. "Objectivity and Positio n." By Am anya Sen, La mo n t Un iversity Professor and Professor of Economi cs and Phi losophy, Harvard University. 1994. "Fam ilies, Nations, a nd Su-a ngers." By Sa mue l Scheffler, Professor of Philosophy, Unive rsity of Califo r- nia, Be rke ley. 1995. "Wittgenste in o n Practi ce a nd the Myth of the Giving." By Susan Hur ley, Professor of Poli tical a nd Ethical Th eory, U niver- sity of Warwick. 1996. 'The Diversity of Objectio ns to In equality." By T. M. Scan lon, Alford Pr ofesso r of Natura l Religio n, Mora l PhjJosophy, a nd Civil Po lity, Harvard University. 1997. ''The Feminist Critique of Liberal ism.~ By Manha C. Nussbaum , Ern st Fre und Professo r of Law an d Ethi cs, University of Chicago. 1998. "A Second-Best Morali ty." By J oseph Margolis, Professor of Philosophy, Te mple University. 1999. "T he Mylh of Egoism" By Christin e M. Ko rsgaard , Arthur Kingsle y Po rter Professor of Philosophy, Harvard University. 
work_wdudnlx2k5dbhfsd5bjhqvx3me	----	President Orders Justice I e resources or biological systems of the planet." The new facility is scheduled to be completed in 1996. President Orders Justice Responding to charges that the poor and minority communities face a dispropor- tionate risk from environmental pollution, President Clinton signed an executive order on Feburary 12 mandating that fed- eral agencies identify and eliminate racial inequities from their environmental poli- cies. The order comes after more than a decade of environmental activism from grassroots organizations led by people of color. The order will have a significant impact on environmental health issues that disproportantely affect low income and minority communites such as lead poison- ing, air pollution, exposure to pesticides, and water pollution. "All Americans have a right to be pro- tected from pollution-not just those who can afford to live in the cleanest and safest communities," Clinton declared after sign- ing the order. "Today we direct federal agencies to make environmental justice a part of all that they do." The order directs federal agencies to examine their programs for adverse health or environmental effects in low-income and minority communites, consider health hazards and environmental risk facing poor and minorities when conducting research, ensure that disadvantaged communities have access to public information on health and the environment, and conduct all environmental activities in a manner that does not discriminate against the poor and minorities. Those involved in the struggle against environmental discrimination called the order an important step toward eliminat- ing environmental racism. "This order says that at the highest level of government, environmental justice is being taken seri- ously," said Robert Bullard, author of Dumping in Dixie, a study of environmen- tal racism in the south. "This will make federal agencies protect everyone equally. No longer will environmental protection be excluded from civil rights." Charles Lee of the United Church of Christ's Commission on Racial Justice agrees. "This order touches on the key points we in the environmental justice movement want to deal with and sets a clear direction for federal agencies to fol- low." The order is not a law that can be con- tested in the courts but a set of instructions from the president to the head of federal agencies directing them to carry out certain actions. Federal agencies have one year to implement an environmental strategy that identifies and addresses environmental inequities in their policies, programs, and activities. The presidential order came during a four-day conference held in Arlington, Virginia, on research needs and environ- mental justice. The conference was co- sponsored by NIEHS, EPA, the Agency for Toxic Substances and Disease Registry, the National Institute of Occupational Safety and Health and several other federal agen- cies. Nearly 500 people attended the event including EPA administrator Carol Browner, Ben Chavis, executive director of the NAACP, Senator Paul Wellstone (D- Minnesota), civil rights activist Dick Gregory, and representatives from six cabi- net-level departments. The conference marked the first collaboration between community groups and governmental agencies in addressing the problem of envi- ronmental racism. David Satcher _ Kenneth Olden Mildred McClain Phyllis Glazer E 0 ~~~~~~Benjamin Chavis Rose Marie Augustine Congressional Scorecard "The sorry truth is that today's Congress would not enact many of the landmark environmental laws of the late '60s and early '70s that turned the tide against pol- lution," said Jim Maddy, president of the League of Conservation Voters, in an introduction to the group's National Environmental Scorecard of the first session of the 103rd Congress. The scorecard, which rates the actions of the nation's rep- resentatives on environmental legislation, states that this year's scores reflect a sharp polarization between Republican and Democratic parties on environmental issues, often framed within the context of a debate over property rights. According to a January 1994 poll by Environment Opinion Study, Republicans are just as likely to consider themselves environmentalists as Democrats; however, scores in the LCV report reflect that they often fail, more so than Democrats, to cast environmentally positive votes. The score- card states that although strong initiatives were put forth under the leadership of the Clinton administration, these proposals came up against strong opposition from Republican leadership. Rank-and-file Republican politicians were often forced to choose between falling in line with party leadership (often allied with pro- business interests) or voting for environ- mental progress. The scorecard notes, however, that usually strong environmen- talists in both parties, "faced with heavy lobbying from home-state industries, betrayed their best instincts and voted for the status quo." Although the nation's lawmakers were rated on a wide range of environmental legislation issues, the LCV scorecard describes a prevailing theme throughout much of the debates. The debate centers around the movement, referred to by pro- Volume 102, Number 4, April 1994 361 
work_wf7fzchginf6ljfguhdhmlhx64	----	Electronic copy available at: https://ssrn.com/abstract=2957059 ANDREAS FOLLESDAL TRACKING JUSTICE DEMOCRATICALLY Approximately as appears in Social Epistemology 2017 http://dx.doi.org/10.1080/02691728.2017.1317869 Abstract: Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with – and even a recommended component of – an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy making. Section 1 offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of concern – in particular the European Court of Human Rights (ECtHR). Section 2 develops some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted in section 3. Section 4 considers the case(s) for international judicial review, arguing that such review helps secure those premises and scope conditions. The section goes on to consider the scope such review should have – and some objections to such an account. Keywords: epistemic democracy, judicial review, international human rights, the European Court of Human Rights, proceduralism, legitimacy, Is international judicial human rights review ('Review') anti-democratic and therefore illegitimate, and objectionably epistocratic to boot?  , 1 Or is such review compatible with – and even a valued component of – an epistemic account of democracy? This article defends the latter position, laying out the case for the democratic legitimacy of such Review of democratically enacted legislation and policy making (see also Santoro and Liveriero 2017 [this issue]). Of concern here are some of the principled arguments for and against Review, with a focus on a hard case: the European Court of Human Rights' (ECtHR) Review even of quite well functioning democratic  Andreas Follesdal, Professor of Political Philosophy, Faculty of Law, University of Oslo. Principal Investigator, European Research Council Advanced Grant MultiRights 2011-16, on the Legitimacy of Multi- Level Human rights Judiciary; and Co-Director of PluriCourts, a Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order. Ph.D. 1991 in Philosophy, Harvard University. Follesdal publishes in the field of political philosophy, mainly on issues of international political theory, globalisation/Europeanisation, Human Rights, and Socially Responsible Investing. 1 This article was written under the auspices of ERC Advanced Grant 269841 MultiRights —on the Legitimacy of Multi-Level Human Rights Judiciary; and partly supported by the Research Council of Norway through its Centres of Excellence Funding Scheme, project number 223274 – PluriCourts The Legitimacy of the International Judiciary, and the Democracy Programme of the University of Oslo. I am grateful for comments at the Conference on Epistemic Democracy, Yale University October 19, 2011; and for very constructive and thorough suggestions from two anonymous reviewers. http://dx.doi.org/10.1080/02691728.2017.1317869 Electronic copy available at: https://ssrn.com/abstract=2957059 - 2 - member states of the Council of Europe. To make this argument, we must consider in quite some detail the reasons we have for valuing democratic decision making, and under which conditions democracy promotes these values reliably. Section 1 therefore offers a brief sketch of epistemic democracy and one international human rights court - the European Court of Human Rights (ECtHR). Section 2 develops some of the relevant aspects of one particular theory of democracy. The argument requires that we consider in some depth both proceduralist and epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Section 3 sums up several of the important premises and scope conditions. Section 4 argue the case for Review consistent with that account of democracy, and the scope that such review should have in light of the epistemic account of democracy laid out above. Judicial review can on the one hand help foster better epistemic majoritarian democratic decision making, and on the other hand identify and help to remedy errors or unjust outcomes of such democratic decisions. To further elaborate on the position, that section also considers some objections addressed to this sort of epistemic account of democracy drawing on the ECtHR's practice. 1 Background: democracy and the European Court of Human Rights The account of epistemic democracy laid out here holds that majoritarian democratic decision procedures are necessary but not sufficient to identify legitimate outcomes. For our purposes here Cohen's canonical account of epistemic democracy should be elaborated to include several further features (Cohen 1986, 34, Follesdal and Hix 2006). 'Democracy' refers to 1) Institutionally established procedures that regulate 2) competition for control over political authority, 3) on the basis of deliberation, 4) where nearly all adult citizens are permitted to participate in 5) an electoral mechanism where their expressed preferences over alternative candidates determine the outcome, 6) in such ways that the government is responsive to the majority or to as many as possible. Some general features of this theory merit mention before Section 2 explains in some detail why we have reason to value such democratic decision-making. Firstly, note that the focus of assessment is institutional design, and this affects the relevance of particular policy outcomes. No institution is completely reliable in securing desired outcomes: its procedures must be designed to deal with standard cases and be less suited for extraordinary circumstances, and the procedures will not always be fully complied with out of accident, incompetence or ill will. Thus the outcomes of - 3 - institutions will sometimes miss such independent standard of correctness as may be (pace 'correctness theories of legitimacy' Estlund 2009). This is important for the argument: when we assess democratic institutions against alternatives by normative standards it is not enough to consider some particular present, actual policy outcomes. Instead we must compare the tendencies of alternative decision making arrangements, as regards how reliably sufficiently responsive they are over time. Secondly, this approach shares Chamber's 'systems-approach' (Chambers 2017 [this issue]). The subject matter of normative assessment is the set of decision-making institutions as a whole, rather than e.g. an exclusive focus on electoral majoritarian aggregation as a decision procedure .This is important for discussions about the legitimacy of Review as part of democratic decision making: Such institutions may function in "non-democratic" ways yet be valuable components of a political and legal order which as a whole merits the label 'democratic.' So somewhat paradoxically, insofar as Review is justifiable, this function by an unaccountable judiciary is a valuable component of a legitimate and democratic system of decision making. Thirdly, the present account maintains that the domain over outcomes which is appropriately decided by majority rule is limited in various ways. In particular, our concern is with constitutional democracies with human rights constraints. Majoritarian deliberation may help monitor such limits, but such monitoring cannot always be assured – opening up for one important contribution of Review. The European Court of Human Rights (ECtHR) monitors the European Convention on Human Rights (ECHR), and is among the most powerful treaty based courts. It exercises what is sometimes referred to as ‘weak’ review. That is: the ECtHR can find a law or its application to be incompatible with the ECHR, but this does not directly affect the validity of that law in the domestic legal system. Nor does the ECtHR replace such laws with one of its own making, as would some forms of ‘strong’ judicial review. When the ECtHR finds that the state is in violation of its international human rights obligations it is for the domestic bodies to decide how to secure consistency with ECHR. The major normative issue here is whether such international human rights review bodies are compatible with, and even to be recommended as supplements to - democratic decision making processes. Which benefits does Review provide, without imposing worse disadvantages or burdens on anybody – against a baseline of majoritarian democratic arrangements without such review? 2 Proceduralist, epistemic and other reasons for majoritarian democracy To defend Review it is necessary to consider in some depth the justification for democratic majority rule. The main objective of this section is thus to lay out central features of an epistemic democratic theory (see also Ebeling 2017 [this issue], Landemore 2017 [this issue]. It values democratic decision making both for epistemic and procedural reasons, and has both deliberative and aggregative aspects. - 4 - Proceduralist values We may accord intrinsic value to democratic majoritarian rule after deliberation because such procedures express various aspects of fair distribution of influence or power. These aspects include - the expression of equal respect and “a measure of confidence in that person's moral capacities” (Waldron 1998, 341) - giving each an equal chance to contribute their view (Waldron, ibid), and/or - that majority rule treats all persons’ preferences equally (Ackerman 1980, 277-85) Note that some such arguments for formally equal votes among persons may apply even if there is a large divergence between such equal voting 'weight' and the resultant influence over selection of the outcome (Beitz 1989, Shapiro 2003). Consequentialist reasons The present account holds that democracy has both intrinsic and instrumental value. Thus democratic decision making is not the sole good: there are also outcome oriented reasons to value majority rule. One reason to value democracy is its instrumental role in preserving certain human rights and other important human interests (Christiano 2011,175). The current account thus holds that under certain conditions democratic procedures are better than the alternatives at identifying such somewhat procedure independent correct decisions (cf. Landemore 2017 [this issue]; Estlund 2009, 98; Christiano 2011; Anderson 2006; Coleman and Ferejohn 1986). 2 Consider also some of consequentialist reasons that are not specifically epistemic, but are rather due to the aggregative role of majoritarian voting. Brian Barry and others argued that majority rule is a fair mode of conflict resolution for the distribution of benefits and burdens of common decisions within certain constraints (Barry 1991). There are at least two constraints of relevance here. The gains and losses must be roughly equally valuable: The 'stakes' for each individual must be of ‘medium’ importance (Shapiro 2003). Secondly, the chances for each person being in the majority are equal. Thus there must be no permanent minorities, - if necessary by adjusting the voting weights. Note that this condition needs not be satisfied for all proceduralist arguments canvassed above. Both the proceduralist and consequentialist reasons to value majority rule accept voting as legitimately expressing self-oriented preferences. Indeed, on many occasions voting according to one’s own interest may be unproblematic (Barry, 1991; Habermas 1993, 63). Yet the voters' preferences should at least sometimes be constrained by or otherwise be guided by a concern for the common good, in 2 The present account thus holds an intermediary position between "pure procedural" theories and "pure epistemic" theories. The former may deny that democratic procedures seek to track any "independent truth of the matter" but where the goodness or rightness of an outcome is wholly constituted by the fact of its having emerged in some procedurally correct manner. (List and Goodin 2001, cf. Coleman and Ferejohn 1986, 7). The latter may hold that there is always some fact of the matter, completely independent of the outcome of the actual decision procedure followed, as to what the best or right outcome is. - 5 - particular concerns for basic justice and respect for the vital interests of others. Individuals and political parties should constrain their promotion of own interests out of a sense of justice. A challenge arises under complex circumstances: it becomes important but often difficult to ascertain which outcomes - policies or pieces of legislation - are substantively just. Democratic procedures serve important epistemic roles in this regard. A second task is how to decide on which of these just outcomes individuals should accept as authoritative. We turn to these two tasks now. Epistemic arguments for democratic decision making procedures I venture that mechanisms of democratic politics can serve at least four valuable epistemic roles in discovering the correct outcomes and in assessing the effectiveness, feasibility and justice of various policies. A) Creative and critical policy creation. A wide range of friends of deliberation agree that one of the major contributions of deliberation is to help discover and specify policies and pieces of legislation, and to assess their feasibility and expected effects (Przeworski 1998, Elster 1998b, 7). This argument from creative policy creation holds better when the democratic deliberation has indeed fostered such a range of alternatives and prompted public scrutiny of their expected effects on affected parties. If these processes have been stifled the resulting vote is less likely to express citizens' self interest and sense of justice to the greatest extent, and the value of the process suffers as a result. B) Change ultimate values or interests. Many theorists will hold that democratic deliberation not only help individuals select the most rational means to their given ends, but that discussions also help us discover and even modify our ultimate values. Importantly, through the exchange of opinions and arguments the parties may come to not only understand but also seek to prevent negative impacts of decisions on others. Inclusive deliberation may allow many affected parties to voice their concerns about alternative policies, and this may trigger and enhance other citizens' sense of justice or fairness. This category includes John Stuart Mill’s argument about the educative value of democratic mechanisms that train participants toward democratic dispositions and behaviours (Mill 1861 [1972], 325. Goodin 2004).3 There is no claim that these deliberative processes of discovery and change will always lead voters to modify their preferences in a more just or fair direction, rather than foster unfortunate group think, xenophobia and the like. Nor is there an assumption of reaching a consensus if this process only carries on long enough (Przeworski 1998). The deliberative process may well leave the majority insufficiently respectful or aware of the interests of groups who find themselves in the minority. C) Normative assessment of policies. Discussions may help individuals discover 3 I am grateful to an anonymous reviewer for this reminder. - 6 - whether various policies or pieces of legislation – or packages thereof – are sufficiently just. Sometimes such discoveries may lead individuals to modify or prune their self-interested plans, out of consideration for the interests of others. Note that democratic deliberation does not guarantee such outcomes. To the contrary, insofar as the processes hinder some groups from getting attention to their plight, other citizens may easily overlook the impact of decisions on those groups. D) To make such findings public knowledge. Publicity about the occurrence of such deliberations as mentioned above and their results has a further value. Such public knowledge helps establish and sustain citizens' sense of a political obligation to comply with legislation and policies. Not only must justice be done, but the institutions as a whole must also give assurance to citizens that there is general belief that this is indeed the case. Democratic procedures can give evidence of such facts. This is especially important among actors who are ‘contingent compliers’ in the sense familiar from game theoretical discussions of Assurance Games (Taylor 1987, Levi 1998, Kydd 2005). Contingent compliers are prepared to, and prefer to, comply with common, fair rules as long as they believe that the rules are fair, - i. a. that C above is satisfied - and that most others, including the authorities, comply as well. Acting from such a sense of justice does not entail that individuals are not also motivated by self- oriented interests, but that these self-oriented interests are constrained. One way this constraint is expressed is when a losing minority acquiesces in a majority decision. Note that these epistemic benefits of democratic rule are not due to the institutions' ability to “mirror” (Cohen 1997, 79) or be otherwise similar to the ‘ideal deliberative procedure’ eg an “ideal speech situation” of outstanding philosophy seminars. The epistemic benefits are instead largely due to the contestation among parties and the role of the opposition to government. The central challenge is thus not to reduce competition and 'politicking' in favour of consensus, but rather to foster better, genuine competition (Shapiro 2003, 7). Quasi-pure procedural justice A further important role of majoritarian democratic rule stems from the fact that standards of justice underdetermine policies. Consider cases of ‘ideal theory’, where ex hypothesi the set of background social institutions such as the constitution and other 'rules of the game' are just. In such circumstances the legislature and the executive are often faced with a range of possible, substantively just policies and legislative outcomes to choose among. The domain of such just alternatives is limited by various normative standards: human rights constraints, concerns to avoid domination, and other requirements of distributive justice. So even under such fortuitous conditions, principles of justice as brought to bear by citizens with a well developed sense of justice underdetermine many aspects of the political and legal order. That is: several alternative laws, policies or institutions may be in rough accordance with justice. - 7 - Such underdetermination occurs for at least two reasons: a) Few if any normative principles of justice are fine grained enough, and our information about the impact of alternatives too limited, to allow individuals to establish a strict ordering of all alternatives according to their effects on the distribution of benefits and burdens. Considerations of justice can at most yield a partial ordering that is often indifferent among several alternative distributions (cf Sen 1982). That is: several different distributions of goods or states may be equally just, and even completely just. b) Many different institutions or policies may be compatible with the correct normative distributive standards. For instance, even strongly egalitarian principles of distributive justice may not differentiate amongst several forms of public safety nets and constraints on income differentials. Similarly, freedom of religion and commitments to pluralism may allow both a sharp distinction between church and state, and various forms of weak established churches as found in various European states. I submit that these sources of underdetermination will occur even under ideal deliberative conditions - such that would foster Habermas’ ideal speech situation. Thus rationality constraints underdetermine many decisions about the common good. One important role for democratic decision making is to pick out one among such arrangements – which cannot be ranked as more or less just. By selecting one of these, the democratic decision thereby authoritatively makes this option the morally binding one. A game theoretical account may model this function of democratic rule as a mechanism to fairly resolve a Battle of the Sexes situation among substantively just outcomes (Luce and Raiffa 1957, ch 5). This role is elaborated by inter alia Jeremy Waldron (Waldron 1999, 104); and Philip Pettit (Pettit 2000, 199). This is an instance of what Rawls labelled a quasi-pure procedure: If laws and policies are authorized appropriately, and lie within the permitted range, they are just and command obedience (Rawls 1971, 210, cf. Beitz 1989, 47). It is only when the democratic procedure yields outcomes within the domain of substantively just policy or legislation packages, that the actual performance of the democratic procedure grants legitimacy to the result. The present account thus does not hold that the identification of binding institutions is completely independent of procedures, nor of the substantive outcome. Both Deliberative and Aggregative The outline above should make clear that the present democratic theory values both deliberative and 'post-deliberative' aggregative elements. There is no reason to insist that one excludes the other: Deliberation is not an alternative to voting, nor is voting merely a second best response to time constraints. To the contrary, deliberation and voting are two important components of legitimate democratic rule (Bohman 1998; pace Eriksen 2000, 49). Note also that this insistence on the value of preference formation within deliberative democratic processes does not stem from a highly contested philosophically esoteric version of deliberative democracy (cf Goodin 2004). Rather, - 8 - political competition is also an essential vehicle for opinion formation. Competition fosters political debate, which in turn promotes the formation of public opinion on different policy options. Policy debates among political parties, including deliberation about the best means and objectives of policies, are a cherished part of electoral competition. Review may serve important functions in securing such competition. Competitive elections are crucial to make policies and elected officials responsive to the preferences of citizens (cf. Powell 2000). When well framed, electoral contests provide incentives for elites to develop rival policy ideas and propose rival candidates for political office. This identification of new alternatives is crucial: ‘the definition of the alternatives is the supreme instrument of power’ (Schattschneider 1960: 68). Competition among parties with different platform that express alternative, somewhat consistent, conceptions of what is in the public interest, and which public policies best achieve those objectives helps voters realize which choices may be made and give them some alternatives (Manin 1987: 338-68). An essential feature of the practice of democracy is an institutional design that allows for an opposition to the current leadership elites and policy status quo (e.g. Dahl 1971). Institutions must thus provide incentives and arenas for oppositions to organize and articulate their positions. This is important not least for citizens – and politicians – to understand the difference between the present government and the (democratic) political order (Shapiro 1996, Shapiro 2003). This in turn is central to determine and partially order feasible institutional alternatives according to normative principles. And if citizens cannot identify alternative leaders or policy agendas it is difficult for them to determine whether leaders could have done better or to identify who is responsible for policies. The competition among political parties, further scrutinized by media, encourages them to develop more or less coherent and consistent bundles of policies which voters can in turn distinguish. Without such debates, voters would not be able to form their preferences on complex policy issues. Electoral contestation thus has a powerful formative effect, promoting a gradual evolution of political identities. These effects of political discourse for ‘identity formation’ are widely acknowledged, not only among ‘communicatively’ oriented deliberative democrats – though some of them ignore that much of this is a shared democratic heritage (Weale 1999: 37). Where different theorists disagree is instead in their assessment of the risks, possibilities and best institutions for regulating such preference formation and modification in a normatively preferred direction (cf. Schumpeter 1976; Riker 1982; Follesdal 2000; Shapiro 2003). With many other scholars, I deny that all such formation and modification is reliably for the better (e.g. Przeworski 1998: 140-60; Elster 1998a: 1-18; cf. Follesdal 2000; Elster 2003: 138-58) – not least due to concerns about power and conflict dimensions (Shapiro 2003). There is no reason to believe that more, and less constrained, deliberation always makes for better democracy. Moreover, there may be good reasons for constitutional constraints on democratic decisions (Dryzek 1990). - 9 - We should thus consider checks and balances, drawing on the U.S. federalist tradition or the European consensus-democracy tradition (e.g. Lijphart 1999). In particular, I shall argue that we have good reason to welcome international human rights judicial review over state decisions in order to protect individuals and minorities, rather than exposing them to avoidable risks of unfortunate deliberations and resultant policy mistakes. Criticism considered In closing this brief sketch of an epistemic theory of democracy, note some criticisms and responses of particular relevance to our concern about international human rights review. One challenge to this and other epistemic accounts is that there is no procedure-independent standard of truth or correctness (Shapiro 2003, 65-66).4 In response, I maintain that there are some substantive components of normative standards that may be defensible candidates. They include a range of international human rights that warrant certain international expressions of concern, to protect individuals' vital interests against standard threats within complex, somewhat sovereign states. To be sure, some arguments for such human rights are highly controversial – e.g. based on esoteric religious views, or as ‘transcendental’ necessary preconditions for speech. But there are other arguments which may be endorsed from broader premises – e.g. based on some conception of vital interests and standard threats (Cohen 2004; Beitz 2009), and the benefits of democratic institutions (Christiano 2011). Secondly, note that the under-determination of policies accept that there are many important issues to which there is no unique correct policy or legislation, e.g. as regard property rights or democratic procedures. Such identification is at most a matter of quasi-pure procedural justice. It then becomes important to ensure that the procedures are fair, and that they pick out policies within the permitted range. I shall suggest that Review helps ensure this. A second set of objections concern the risk of epistocracy (see also Holst and Molander 2017 [this issue]). Does the democratic theory sketched above support claims that certain experts should dominate the decision-making process? Several epistocratic mechanisms might be feared, ranging from John Stuart Mill's suggestion of "assigning plurality of votes to authenticated superiority of education" (Mill 1861, Mill 1859), to extensive de facto delegation of legislation to expert committees as practiced in the EU (Follesdal 2011). In response, several have raised decisive objections to several of these proposals – including Mill, who observed an important caveat to the suggestion of plurality of votes to the well educated (Mill 1873 (1969), 153). In response, note that the arguments canvassed above do not support such proposals. There are proceduralist reasons for close to universal voting rights, and several of the consequentialist arguments also counsel against epistocracy. A crucial issue concerns how to identify those who are most likely to track correct outcomes, 4 For further objections and responses, cf. Landemore 2017 - 10 - by defensible procedures. There is reasonable disagreement about who is such an expert (Estlund 2009, 36). The argument from creative and critical policy creation is similarly hampered. In particular, there are two weaknesses with such arguments. It seems implausible that a segment of the population will be able to undertake a correct and full normative assessment of policies – including their impact on individuals' interests – without ensuring voice to those affected (Mill 1861 [1972]; Young 1997). Secondly, the epistocrats not only need to do this, but the population needs assurance that the epistocracy has indeed made such an assessment in good faith. The risk of suspicion of incompetence and or abuse is high. I thus submit that the present democratic theory is not particularly susceptible to supporting an epistocracy. In the following section we explore how the current account of democracy and why and when we should value it is compatible with international human rights judicial review by judges. Such Review may contribute to strengthen and correct democratic procedures. A first step is to consider when such democratic procedures may fail, and how Review may prevent or reduce the risk of such failures. 3. Vulnerabilities and scope conditions of proceduralist epistemic democracy The review above points to several conditions that must be secured to some extent, for democratic decisions to be legitimate. The following summary recalls several of these, before the next section argues that international judicial review can serve both to monitor and promote these processes and conditions, and thus enhance the value of democratic decision making. As regards the value of deliberation for creative and critical policy creation, the processes of discovery and specification of policies and pieces of legislation are crucial. If these processes have been stifled the resulting vote is less likely to reflect citizens' self interest and sense of justice, and the value of the democratic process suffers as a result. Freedom of expression seems crucial to enable such policy creation. Structured analysis of the impact of alternatives is also conducive to this role. The deliberative process may change citizens' ultimate values or interests. To prompt changes toward more other-regarding values, the deliberations should consider the impact on more of the affected individuals of alternative policies, to hopefully trigger and enhance other citizens' sense of justice or fairness. Insofar as this does not occur, there is a risk that the majority decisions fail to heed the important concerns of those in the minority, reducing the value of the democratic process. Indeed, decisions may sometimes be beyond the acceptable domain of just outcomes. Genuine freedom of organization, free media and freedom of expression and opportunities for political opposition parties to voice their views may enable more inclusive deliberation. - 11 - Deliberative democratic processes can also help foster citizens' normative assessment of policies. A crucial condition is that individuals likely to suffer from some alternatives must be heard. Important enabling conditions for this value of democratic deliberation thus seem to include freedom of association and expression, and political participation for all individuals likely to be affected by policies. The final epistemic value of deliberative democracy mentioned above is that it provides publicity about whether policies are normative justifiable, and to assure citizens that the majority has voted for outcomes that lie within the domain of the substantively just. Recall that it is only then that the majority decision grants legitimacy to the result. Such publicity is necessary to sustain citizens' political obligation. This value only arises when there is credible publicity about these claims, which in turns appear to require freedom of expression and scrutiny of policies, by media, opposition parties and by civil society. The upshot of this review of the values of deliberative democracy is that several rights and scope conditions must be secured for majoritarian, deliberative democratic decision making to be legitimate in the sense of creating political obligations among citizens. We now turn to consider how international human rights judicial review may foster such rights and scope conditions, necessary for the value of the democratic institutions themselves (Ely 1980). 4 The possible legitimate roles of international human rights review This section considers how the democratic theory laid out above is compatible with international judicial review of human rights ('Review'), and indeed how such Review may facilitate the conditions which make majoritarian decisions legitimate. The upshot is that we have good reasons to welcome Review: Review supports and reinforces several of the features of epistemic majoritarian democracy which give us reason to value such decision making. And Review arguably helps prevent, identify and alleviate several shortcomings of epistemic majoritarian democracy. Review both foster better epistemic majoritarian democratic decision making, and helps remedy those errors or unjust outcomes which nonetheless occur. Review can thus help protect individuals and minorities against avoidable risks of unfortunate deliberations and resultant policy mistakes. Such risks are especially high if freedom of association and expression is curtailed, or if some groups are denied political participation. To defend and clarify this position, the section concludes by addressing several objections. Democracy has a long and uneasy relationship with domestic judicial review (Waldron 1998; Bellamy 2007). Such concerns notwithstanding, international review may bolster the legitimacy of domestic majoritarian decision making. Consider first the arguments in favour of this claim before turning to some of the most salient criticisms. For illustration and to fix ideas I refer where relevant to the European - 12 - Court of Human Rights (ECtHR) established by the European Convention on Human Rights ('ECHR', Council of Europe 1950). Review to reduce the risk of failure of democratic procedures. Epistemic benefits of democratic rule discussed above include to foster policy creation, provide information about the impact of alternative policies on various segments of the population, and to socialize citizens toward consideration of each other. Such benefits require that the democratic procedures work well, in particular that they allow freedom of expression and association, broad political participation and so forth. A central value of Review is as an added corrective device to supplement domestic political and judicial safeguards that help maintain these rights necessary for democratic procedures to work in valuable ways. Review may ensure good deliberative procedures so as to include the perspectives of more individuals by ensuring freedom of assembly, of the press etc. (ECHR Art 10, 11). Several defenders of judicial review in general may agree to such rights required for epistemic democratic processes of the kind worth valuing (Ely 1980). Review may thus promote epistemically better democratic deliberation. An international court can foster more thorough, impartial and reliable information gathering by the domestic bodies, due to the reporting and fact finding requirements of signatory states including the contributions of somewhat politically independent domestic courts. This information can feed into domestic democratic processes and enhance the epistemic quality of deliberation. Review may serve as an independent umpire and safety valve when the democratic processes still fail. Review can monitor whether the majoritarian decisions fall within the domain of outcomes among which majority decision making is authoritative. When democratic deliberation works well, legislators monitor and respect those limits on their own. But there may be situations where the debates fail for a variety of reasons, and impose undue burdens on some individuals. Some such failures are stopped by Review, namely those which violate the parameters defined by international human rights norms such as in the ECHR. When a majority decides on policies which violate the ECHR, the ECtHR thus serves as a safety valve to give notice that these limits have been trespassed. Review may thus be legitimate not only to ensure well functioning democratic processes, but also to protect some further substantive rights. The most obvious candidates are rights against torture and slavery (ECHR Art 3, 4); and rights of minorities which are at risk if the majority does not respect their urgent interests – such as respect for privacy, freedom of religion and freedom of expression, and prohibition against various forms of discrimination (Art 8, 9, 10, 14). These requirements help ensure that the majoritarian decisions do not subject any citizens to domination, but instead trigger political obligations to comply with the decisions. The margin of appreciation doctrine One aspect of the ECtHR' practice of granting states a 'margin of appreciation' provides an illuminating illustration of how Review can foster valuable epistemic - 13 - democratic processes. The margin of appreciation doctrine is an invention by the ECtHR, whereby it sometimes defers to the state's own judiciary about whether the ECHR has been violated. In particular, the margin may be applied for rights which permit restrictions – typically as "necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals…" (ECHR Art 10.2). This margin of appreciation practice is highly contested, due to vagueness and risks of inconsistencies (HRLJ 1998, Benvenisti 1999, Arai-Takahashi 2001). Such concerns notwithstanding, for our purposes an interesting feature is that as a condition for granting such a margin, the ECtHR often requires that the accused state has undertaken a ‘proportionality test.’ Domestic authorities must have checked whether the rights violation could have been avoided by other policies in pursuit of the same – legitimate - social objectives. Such a test includes consideration of alternative policies to ensure that state authorities have not overlooked less invasive mean, and consideration of the impact of these alternatives on the ECHR rights of individuals. Such deliberation about alternatives and their impact promotes several of the valuable epistemic contributions identified above. The proportionality test thus prompts the state authorities to be creative about its policy options, trace their likely impact on affected parties, and assess these according to the human rights standards of the ECHR. Indeed, insofar as such proportionality testing has not occurred we may challenge whether there is much to value and respect about the "democratic" decision making in this particular case. The ECtHR has often made clear in its judgments that it will not grant a margin of appreciation unless there is evidence that the domestic authorities have undertaken such a proportionality test (Lindheim and Others v. Norway 2012 2012, 85). This practice by the Court may urge states into more careful proportionality testing. This is one way Review by the ECtHR in particular supports and strengthens the domestic epistemic democratic processes – including judicial review by an independent domestic judiciary. A further contribution by Review, including this proportionality test, is to provide assurance to citizens that institutions and the authorities are sufficiently competent and trustworthy, and bolster citizens’ confidence that the domestic epistemic democratic mechanisms are indeed fair and likely to track the truth in particular case. Insofar as Review is carried out by independent and competent courts or tribunals, the review mechanism provides assurance to citizens that the democratic procedures create political obligations to comply. This is especially valuable insofar as citizens are ‘contingent compliers’ in Assurance Games, who comply but only when they have reason to believe that the practices are fair and that others do their part also (Levi 1998). Such Review also allows governments in unstable democracies to 'lock in' democratic rule and deter a non-democratic opposition from seeking power (Moravcsik 2000). These ‘costly signal’ by governments may also be important to establish and maintain the credibility of other states (Kydd 2005). - 14 - Limits to Review? A final point merit elaboration: What are the substantive limits of Review? The account I have sketched allows Review as a safety valve and umpire to ensure ‘procedural’ aspects necessary for epistemic democratic procedures to remain ‘truth tracking.’ In addition, Review also checks several substantive aspects including whether the resulting policies or pieces of legislation comply with substantive human rights norms. This is a broader mandate than some other accounts of human rights. Several of these limit human rights to 'democracy promoting' review (Waldron 1998, 343), or ‘speech-act immanent obligations’ in some sense or other (Cf Baynes 2009 for review). To illustrate, the mandate is broader than Ian Shapiro’s defense of judicial review. His is a self-described middle-ground approach , in which courts or other second-guessing institutions should play a reactive, escape-valve, role in limiting the perverse consequences of democratic procedures when they produce results that foster domination. (Shapiro 2003, 7) He furthermore claims that the legitimacy of courts “appropriately varies with the degree to which they act in democracy-sustaining ways" (Shapiro 2003, 7). I suggest that Review may also strike down human rights violations that have only a tenuous relationship to the maintenance of fair, truth tracking democratic procedures. Cases in point may include various protections of minorities, including constraints on discrimination, beyond what fair deliberative practices would seem to entail. Such a broader mandate for Review than to improve democratic procedures does not prevent it from being a part of democratic decision procedures: Review serves as an umpire to assure citizens that the majority decisions merit deference. Still, I submit that the broader range of rights protected by Review may be supported by theories concerned to prevent domination or other forms of injustice which regard democratic rule as one means for such objectives. I thus submit that Shapiro’s defense of judicial review as democracy enhancing might be expanded to also include domination- preventing in other ways. Non-majoritarian arrangements may clearly also serve such purposes – notwithstanding their constraints on the domain of decisions which may secure the intrinsic value of democratic participation. Objections We finally consider some objections to the account presented here, with a focus on issues that pertain to features of the epistemic democratic theory laid out in section 2. Waldron and several others will be wary of the risk of domination by Review. There is an understandable fear that societies will suffer from the rule of lawyers – and from foreign lawyers, since that is how international courts are typically staffed. In response, first recall that many cases of Review concern policies by the administration or the executive, rather than legislation. The former cases do not appear to raise concerns about the detrimental effects of Review on democratic rule – to the contrary: here Review arguably helps ensure consistency between the - 15 - legislature and the executive. Second, note that the gains and risks of Review are different from the risks individuals are subject to from a legislature. Two types of risks stemming from two sorts of malfunction may occur. The worry about domination by courts is mainly concerned with the risks of ‘false negatives.’ ‘False positives’ will occur when an international court or treaty body fails to flag normatively unacceptable policies or legislative acts. In these cases the human rights of some segment of the population are arguably violated, the existence of Review notwithstanding. 'False negative' cases occur when an international court prompts domestic authorities to change normatively unobjectionable policies or legislative acts. But the impact would not appear to be a severe form of domination: The legislature must unnecessarily revise legislation to avoid the problems mistakenly characterized as such by the court. This damage is clearly regrettable, and Waldron and others may insist that such review violates individuals' right to self-determination. Leaving aside those concerns, the mistaken review does seem to entail less worrisome risks than the impact of legislation which itself violates individuals human rights. It is such ‘false negatives’ that must be heeded in the assessment of success and risks of a practice of judicial review contrasted with a practice of legislation without such review. Thirdly, note that the mechanism of concern – even with the 'strongest' form of Review, performed by the ECtHR - is one of soft review. While the risks of domination are real, the stakes are not as large as with ‘strong’ review which annuls or even replaces old legislation with new. Consider that the immediate effect of a ruling by the ECtHR is that the offending state to take ‘general measures’ to prevent new violations. The weak judicial review does not replace legislative discussions and decisions. Rather, Review serves notice that legislatures and executives should reconsider, to change some laws that violate international human rights. States have wide discretion in finding the requisite means, which may include new or revised legislation, constitutional changes, policy changes or new administrative routines. The effect will often be public and parliamentary discussions about what means are best suited to the local circumstances and least intrusive of legitimate expectations and culture. The new deliberations will often be guided by a more keen awareness of the internationally protected needs of particular groups – whose concerns have previously been overlooked or overheard. This is not in conflict with the ideals of democratic deliberation that seeks non-domination – to the contrary, such widened awareness is one of the reasons to value such democratic deliberation. Thus the result of a negative decision is that the domestic authorities must revise their policy or legislation, through the ordinary bodies under democratic control. Such Review can therefore not be criticized on the ground that 'what do they know’ about what the majority would have voted for under more fair conditions; the international court only assesses that this particular domestic policy violates the treaty. Given the several forms of underdetermination, Review cannot replace domestic democratic decision making fully. The judges performing Review cannot reasonably be criticized for being epistocrats. They are not undertaking a full normative assessment of - 16 - domestic policies and legislation, oblivious to the voices of those affected. Rather, the judges of the ECtHR are performing a much more limited task: assessing whether particular policies or legislation is consistent with a particular set of legal norms. One of the critics of the margin of appreciation therefore sets too high standards for the ECtHR when he criticizes it: The court also relinquishes its duty to set universal standards from its unique position as a collective supranational voice of reason and morality. Its decisions reflect a respect of sovereignty, of the notion of subsidiarity, and of national democracy. It stops short of fulfilling the crucial task of becoming the external guardian against the tyranny by majorities. (Benvenisti 1999, 852) Review is not properly described as a matter of reason and morality over the tyranny of domestic majorities: the judges are not members of such an epistocracy, but limited to legal interpretation, and with a subsidiary role of supporting the domestic democratic processes worth respect - albeit with important discretion in this regard. We may also consider the pre-emptive role of the ECtHR’s decisions: they serve to shape and frame, rather than stifle, the political debates in parliaments and elsewhere. Awareness among all that deeply dissatisfied citizens may appeal decisions to the ECtHR may well promote the commitment to treat all fairly, and foster more careful proportionality tests – which arguably enhances the policy creativity, impact scrutiny and preference formation which gives us epistemic reasons to value deliberative democracy in the first place. A second criticism is that Review overturns majoritarian democratic decisions, and is therefore anti-democratic – and hence illegitimate. A first response may be to challenge the final step. Arguably, Review may be regarded as an institution that is non-democratic yet a legitimate component of a political and legal order which has sufficient mechanisms of majoritarian decision making rules to warrant calling the order as a whole ‘democratic.’ I submit a stronger alternative: Review may be regarded as part of the democratic decision-making procedures of a state. Such bodies serve to bolster, ensure and give assurance that the majoritarian democratic decisions are within the domain of sufficiently just outcomes, and that the procedures are followed – so that the majoritarian decisions create political obligations to comply. The bodies that monitor the borders of the domain within which majority rule is authoritative should themselves be regarded as components of the institutions for democratic decision making - especially when they do not replace democratic procedures, but rather return the decision to the democratic process. Still, what are we to make of the remaining concern: Review undoubtedly seeks to undo domestic decisions made by a democratically accountable legislature. How can such practices at all be defended? In response, recall the reasons to value epistemic democracy, and hold them up against the practice of the ECtHR – including in particular its margin of appreciation doctrine. Recall that the Court hardly grants any margin when certain rights are at risk under certain emergencies, regardless of what states claim, namely rights against - 17 - torture or slavery. These would seem to be rights violations where the majoritarian process would not generate any democratic claim to deference to be overridden. The reasons to value democratic decisions are strongest when the results emerge from well functioning democratic mechanisms and the rule of law, where the population has deliberated about alternative policies and legislative proposals in light of their implications for all affected parties, so as to promote broadly shared interests whilst avoiding harm to anyone. When rights concerning political participation, freedom of expression and other rights required for well-functioning democratic decision making are violated, the reasons to defer to the decisions are much weakened. Thus the challenge to democracy also seems weak when the ECtHR overturns domestic decisions which violate such rights. Furthermore, the majoritarian democratic mechanisms are not particularly reliable in securing the vital interests and equal respect for those who are likely to be in the minority when decisions are taken by majorities. In these cases, again, it seems difficult to maintain that the ECtHR is a threat to the sort of democratic process and outcome we have reason to value. Benvenisti puts the point clearly: One of the main justifications for an international system for the protection of human rights lies in the opportunity it provides for promoting the interests of minorities. This system is an external device to ameliorate some of the deficiencies of the democratic system. Such external mechanisms are not susceptible to the concerns of domestic governments as much as internal decision-makers are. (Benvenisti 1999, 850) Finally, consider a third criticism relevant for the epistemic account laid out above. Domestic organs may be in an epistemically better position than will an international court to determine whether there is a violation of an international human rights treaty. A related concern drawn from the epistemic arguments for democracy is that international judicial review reduces the chance of discovering the correct answers. The judges will be unfamiliar with the local mores, circumstances, traditions and expectations that are crucial for assessment. Review runs against the ‘presumption for insiders’ wisdom’ (Shapiro 2003, 39). In response, note firstly that the details of how such Review operates mitigate against such worries. In the case of the ECtHR at least two aspects are relevant. The court always includes ex officio a judge from the particular state charged with a violation, so as to be informed about relevant background culture, traditions etc. Secondly, the ECtHR often justifies the margin of appreciation doctrine precisely on such grounds, that domestic authorities are in principle better placed than an international court to evaluate local needs and conditions: “By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions.”( Fretté v. France 2002, § 41). Thirdly, while this comparative advantage of local experts may hold in many - 18 - circumstances, even democratic deliberative majoritarian decision making is not always well functioning. There is also a risk that domestic courts will not only be more familiar with the local circumstances, but that they will be too lenient in favour of the government’s claims that particular policies are necessary given the local history and conditions. Domestic authorities are also at risk of having adopted the majority's perspectives, values and concerns – rather than those of vulnerable minorities. The need to check such risks of local domination or tyranny should not be overlooked out of fears about domination from the centre – as the Federalist discussion remind us (Brutus 1787, Madison 1787 (1961)). Human rights constraints can serve precisely to guide such ‘balancing’ between individuals’ rights and the interests and mores of a majority. The scrutiny of proclaimed arguments for how such balancing has been performed may reduce the risk of domination and other transgressions outside the domain of just outcomes. Furthermore, domestic authorities may know more about the domestic setting, but not much about which alternative policies may serve such legitimate interests and values sufficiently well. The latter requires a comparative perspective which domestic authorities may be too myopic to discern. Thus this epistemic case for deference by international courts is at its strongest when domestic organs have carried out a proportionality test when human rights are at stake, to give assurance that they have creatively considered less invasive alternatives and have not ignored the impact on some groups. Such deliberation about alternatives and their impact is indeed what well-functioning democratic decision making should secure. Insofar as such proportionality testing has not been carried out at all - in well-functioning democracies and elsewhere – the ECtHR would appear to have no reason from deference for democratic decision making to refrain from reviewing a decision. When a good faith proportionality test has been carried out, however, the ECtHR should more likely defer. And this does indeed match how the ECtHR describes its own practice, as cited above. 5 Conclusion – Contributions to a research agenda I have sought to argue that international judicial review of human rights constraints is compatible with epistemic and proceduralist reasons we can offer for democratic rule – which on this view should occur within a restricted domain. Indeed, human rights constraints would even seem to be democratic, in that such constraints seem required by the best reasons we can offer for why citizens should defer to democratic, majority rule among equals – namely within a certain domain, on the basis of deliberation which promotes several epistemic objectives. Review can strengthen several of the features of epistemic majoritarian democracy which make such decision making legitimate. Review arguably prevent, identifies and alleviates some of the vulnerabilities of epistemic majoritarian democracy. Review may ensure better deliberative procedures which include the perspectives of more affected parties, e.g. by safeguarding freedom of assembly, of - 19 - the press etc. Review also helps remedy those errors or unjust outcomes which nonetheless occur: Review monitors that minorities' human rights are not violated by democratic majoritarian decision-making, as a safety valve if such limits are not identified and respected by the deliberations themselves. Finally, Review provides public assurance to citizens that their government does indeed respect these limitations to legitimate democratic majority rule. Throughout the discussion the ECtHR has been used as an illustration because the power of this court is the strongest challenge to sovereignty as traditionally conceived. But the concern here has not been to defend a specific set of precise human rights norms, nor the particular courts and treaty bodies currently performing such Review. To conclude, consider several important research topics that should be addressed in pursuit of these lines of reasoning. Several criticisms against the ECtHR and other treaty bodies merit serious consideration (Follesdal 2009). The case for Review is comparative, thus it is important to seek to determine which domestic and international institutional mechanisms in combination are best at fostering the requisite public, political debate about the domain of just outcomes, including in particular human rights. Such domestic mechanisms as parliamentary committees and ombudsmen may be strengthened, but are not necessarily alternatives to Review – rather, the latter may serve to bolster domestic mechanisms and give further assurance of their well functioning. Secondly, the procedures of the international courts – including their selection processes – merit closer scrutiny to assess their epistemic contributions. Thirdly, an important design challenge is to how to institutionalize the proper insulation of such courts from parties to the conflict, while ensuring that they remain committed to the human rights to be protected – where the treaties must be interpreted 'dynamically' to ensure continued protection whilst circumstances change (Follesdal 2014). – And not least: How can the system as a whole provide public assurance that these judges, whilst independent, remain accountable so that they contribute to a political and legal order which remains responsive to the best interests of all and hence merits obedience. References 2002. Fretté v. France In 38 EHRR 438: European Court on Human Rights. 2012. Lindheim and others v. Norway [Tomtefestesaken]. In Series B 13221/08: ECtHR. Ackerman, Bruce. 1980. Social justice in the liberal state. New Haven: Yale University Press. Anderson, Elizabeth. 2006. "The epistemology of democracy." Episteme: A Journal of Social Epistemology no. 3 (1-2):8-22. Arai-Takahashi, Yutaka. 2001. The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR Antwerpen: Intersentia Barry, Brian. 1991. "Is democracy special?" In Democracy and Power, edited by Brian Barry, 24-60. Oxford: Oxford University Press. - 20 - Baynes, Kenneth. 2009. "Discourse ethics and the political conception of human rights." Ethics and Global Politics no. 2 (1):1-21. Beitz, Charles R. 1989. Political Equality. Princeton, N.J.: Princeton University Press. Beitz, Charles R. 2009. The Idea of Human Rights. Oxford: Oxford University Press. Bellamy, Richard. 2007. Political Constitutionalism: A republican defense of the constitutionality of democracy. Cambridge: Cambridge University Press. Benvenisti, Eyal. 1999. "Margin of appreciation, consensus, and universal standards." International law and politics no. 31:843-854. Bohman, James. 1998. "The coming of age of Deliberative Democracy." Journal of Political Philosophy no. 6 (4):400-425. Brutus. 1787. "Letter of October 18." New York Journal. Christiano, Thomas. 2011. "An instrumental argument for a human right to democracy." Philosophy and Public Affairs no. 39 (2):142-176. Cohen, Joshua. 1986. "An epistemic conception of democracy." Ethics no. 97:26-38. Cohen, Joshua. 1997. "Deliberation and democratic legitimacy." In Deliberative Democracy: Essays on Reason and Politics, edited by James Bohman and William Rehg, 67-91. Cambridge, Mass.: MIT Press. Cohen, Joshua. 2004. "Minimalism about Human rights: The most we can hope for?" Journal of Political Philosophy no. 12 (2):190-213. doi: http://www.blackwell- synergy.com/doi/pdf/10.1111/j.1467-9760.2004.00197.x. Coleman, Jules, and John Ferejohn. 1986. "Democracy and social choice." Ethics no. 97:11-22. Council of Europe. 1950. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. Entry into force 3 September 1953. In ETS 5; 213 UNTS 221. Dahl, Robert A. 1971. Polyarchy: Participation and Opposition. New Haven: Yale University Press. Dryzek, John S. 1990. Discursive Democracy: Politics, Policy, and Political Science. Cambridge: Cambridge University Press. Elster, Jon. 1998a. Deliberative Democracy. Cambridge: Cambridge University Press. Elster, Jon. 1998b. "Introduction." In Deliberative Democracy, 1-18. Cambridge: Cambridge University Press. Elster, Jon. 2003. "The market and the forum: three varieties of political theory." In Philosophy and Democracy, edited by Thomas Christiano, 138-158. Oxford: Oxford University Press. Original edition, In Elsten and Hylland 1986, 103- 132. Ely, John Hart. 1980. Democracy and distrust: A theory of judicial review. Cambridge, Mass.: Harvard University Press. Eriksen, Erik Oddvar. 2000. "Deliberative supranationalism in the EU." In Democracy in the European Union: Integration through deliberation?, edited by Erik Oddvar Eriksen and John Erik Fossum, 42-64. London: Routledge. Estlund, David. 2009. Democratic Authority: A philosophical framework. Princeton: Princeton University Press. Follesdal, Andreas. 2000. Theories of Democracy for Europe: Multi-level Challenges for Multi-level Governance. ISSEI 2000 CD-ROM, http://follesdal.net/ms/Follesdal-2000-dem-EU-ISSEI.rtf. http://www.blackwell-synergy.com/doi/pdf/10.1111/j.1467-9760.2004.00197.x http://www.blackwell-synergy.com/doi/pdf/10.1111/j.1467-9760.2004.00197.x http://follesdal.net/ms/Follesdal-2000-dem-EU-ISSEI.rtf - 21 - Follesdal, Andreas. 2009. "Why the European Court on Human Rights might be Democratically Legitimate – A Modest Defense." Nordic Journal of Human Rights no. 27 (2):289-303. Follesdal, Andreas. 2011. "The Legitimacy Challenges for New Modes of Governance: Trustworthy Responsiveness." Government and Opposition no. 46 (1):81-100. doi: 10.1111/j.1477-7053.2010.01331.x. Follesdal, Andreas. 2014. Legitimacy Challenges and what to do about them - Accountability and authority of the European Court of Human Rights. In Proceedings of Conference on the Long-term future of the European Court of Human Rights. Follesdal, Andreas, and Simon Hix. 2006. "Why there is a Democratic Deficit in the EU: A Response to Majone and Moravcsik." Journal of Common Market Studies no. 44 (3):533-62. Goodin, Robert. 2004. "Input Democracy." In Power and Democracy: Critical Interventions, edited by Fredrik Engelstad and Øivind Østerud, 79-100. Oslo: Ashgate. Habermas, Jürgen. 1993. Justification and Application: Remarks on Discourse Ethics. Cambridge, Mass.: MIT Press. HRLJ, Human Rights Law Journal. 1998. "The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice - special issue." Human Rights Law Journal no. 19 (1). Kydd, Andrew H. 2005. Trust and mistrust in international relations: Princeton University Press. Landemore, Hélène. 2017. "Beyond the Fact of Disagreement? The Epistemic Turn in Deliberative Democracy." This volume, xxx-xxx. Levi, Margaret. 1998. Consent, dissent and patriotism. New York: Cambridge University Press. Lijphart, Arend. 1999. Patterns of democracy: Government forms and performance in Thirty-six countries. New Haven: Yale University Press. List, Christian, and Robert Goodin. 2001. "Epistemic Democracy: Generalizing the Condorcet Jury Theorem." Journal of Political Philosophy. Luce, R. Duncan, and Howard Raiffa. 1957. Games and decisions. New York: Wiley. Madison, James. 1787 (1961). "The Federalist no. 10." In. New York: Mentor. Original edition, 1787. Manin, Bernard. 1987. "On legitimacy and political deliberation." Political Theory no. 15:338-68. Mill, John Stuart. 1859. Thought on Parliamentary Reform. Mill, John Stuart. 1861. Considerations on representative government. (1958) New York: Liberal Arts Press. Mill, John Stuart. 1861 [1972]. Considerations on representative government. Edited by H. B. Acton, J. S. Mill: Utilitarianism, On Liberty and Considerations on repreesentative government. London: J. M. Dent. Mill, John Stuart. 1873 (1969). Autobiography. Boston: Houghton Mifflin. Moravcsik, Andrew. 2000. "The origins of human rights regimes: Democratic delegation in Postwar Europe." International Organization no. 54 (2):217-252. - 22 - Pettit, Philip. 2000. "Democracy: Electoral and Contestatory." In Designing Democratic Institutions, edited by Ian Shapiro and Stephen Macedo, 104-44. New York: New York University Press. Powell, G. Bingham. 2000. Elections as instruments of democracy: majoritarian and proportional visions. New Haven: Yale University Press. Przeworski, Adam. 1998. "Deliberation and Ideological Domination." In Deliberative Democracy, edited by Jon Elster, 140-160. Cambridge: Cambridge University Press. Rawls, John. 1971. A theory of justice. Cambridge, Mass.: Harvard University Press. Riker, William H. 1982. Liberalism against populism. San Francisco: W.H. Freeman. Schattschneider, E. E. 1960. The semi-sovereign people: A realist's view of democracy in America. New York: Holt, Rinehart and Winston. Schumpeter, Joseph A. 1976. Capitalism, Socialism and Democracy. London: Allen and Unwin. Sen, Amartya K. 1982. "Behaviour and the concept of preference." In Choice, Welfare and Measurement, 54-73. Cambridge, Mass.: Mit Press. Shapiro, Ian. 1996. Democracy's place. Ithaca: Cornell University Press. Shapiro, Ian. 2003. The state of democratic theory. Princeton: Princeton University Press. Taylor, Michael. 1987. The possibility of cooperation. Cambridge: Cambridge University Press. Waldron, Jeremy. 1998. "Judicial review and the conditions of democracy." Journal of Political Philosophy no. 6:335-355. Waldron, Jeremy. 1999. The dignity of legislation. Cambridge: Cambridge University Press. Weale, Albert. 1999. Democracy. New York: St. Martin's Press. Young, Iris Marion. 1997. "Communication and the other: Beyond deliberative democracy." In Intersecting voices: dilemmas of gender, political philosophy, and policy. Princeton, NJ: Princeton University Press. 
work_wf7hbjj5wzaybn7yggiuwrncxu	----	Transformative gender justice: setting an agenda This is a repository copy of Transformative gender justice: setting an agenda. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/81791/ Version: Accepted Version Article: Boesten, J and Wilding, P (2015) Transformative gender justice: setting an agenda. Women's Studies International Forum, 51. pp. 75-80. ISSN 0277-5395 https://doi.org/10.1016/j.wsif.2014.11.001 eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Unless indicated otherwise, fulltext items are protected by copyright with all rights reserved. The copyright exception in section 29 of the Copyright, Designs and Patents Act 1988 allows the making of a single copy solely for the purpose of non-commercial research or private study within the limits of fair dealing. The publisher or other rights-holder may allow further reproduction and re-use of this version - refer to the White Rose Research Online record for this item. Where records identify the publisher as the copyright holder, users can verify any specific terms of use on the publisher’s website. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. mailto:eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ 1 Transformative Gender Justice: Setting an Agenda Jelke Boesten and Polly Wilding Tｴｷゲ ゲヮWIｷ;ﾉ ｷゲゲ┌W ﾗa WﾗﾏWﾐげゲ “デ┌SｷWゲ IﾐデWヴﾐ;デｷﾗﾐ;ﾉ Jﾗ┌ヴﾐ;ﾉ W┝ヮﾉﾗヴWゲ デｴW ヮﾗデWﾐデｷ;ﾉ aﾗヴ justice mechanisms, in the broadest sense, to have transformative outcomes upon gender relations and the position of women in countries with histories of violence, whether that be political violence, post-conflict, chronic criminal and / or social ┗ｷﾗﾉWﾐIWく M┌Iｴ ﾗa ┘ﾗﾏWﾐげゲ experiences during and following periods of extensive violence are informed by pre-existing, peacetime, inequalities. The specific gendered harms suffered by women, such as sexual violence and exploitation, are grounded in understandings of gendered roles in society and the perceived links between reproduction and community. Thus, as the growing body of feminist research into processes of transitional justice show, women have vital stakes in post-conflict transformation, rather than reconstruction (Chinking and Charlesworth 2006 cited in Reilly 2007, Ní Aoláin 2012). Likewise, the (often far less visible) expectation that women sustain their caring roles in the everyday of war に providing food, shelter, and care for dependents, or soldiers, in often desperate contexts に constitutes specifically gendered experiences associated with existing inequalities and expectations (Reilly 2007). With this knowledge in mind, it is increasingly obvious that for women periods of societal transition have to aim for the transformation of the underlying inequalities that provided the conditions in which these specifically gendered harms were possible. Consequently, it is inaSWケ┌;デW デﾗ デ;ﾉﾆ ﾗa けデヴ;ﾐゲｷデｷﾗﾐげ に ﾏﾗ┗ｷﾐｪ aヴﾗﾏ IﾗﾐデW┝デ ﾗa IｴヴﾗﾐｷI ┗ｷﾗﾉWﾐIW デﾗ ; ﾏﾗヴW けヮW;IWa┌ﾉげ ゲﾗIｷWデ┞ に if this results in more of the same just under different circumstances. The essays in this Special Issue on Transformative Gender Justice 1 build on this emerging body of work that emphasizes the need for a transformative approach to the opportunity that transitions can pose in the aftermath of mass violence. This means that we are not only interested in the structures of inequality and injustice, and how these relate to violence, but in the institutional processes that silently and, often contrary to intentions, reproduce those same inequalities. Ultimately, we are interested in investigating strategies rooted in different disciplinary traditions that challenge such structures. In other words, we are interested in how different justice strategies and mechanisms can contribute to the reconfiguration of power beyond individual experiences of violence and injustice, but rather, at societal level. This Special Issue, therefore, is a contribution to this emerging debate, which explicitly aims to bring together a range of disciplinary perspectives with gender analysis at the heart. Gender, ͚ƉĞĂĐĞ͛ and transformation In recent years there has been a global momentum in thinking about and responding to violence against women (VAW), originating with the early research into domestic 1 This Special Issue is the outcome of the Transformative Gender Justice Workshop, supported by the World Universities Network and the Leeds Centre for Global Development, which was organised by the editors, Boesten and Wilding, and held in Leeds, September 2013 (http://cgd.leeds.ac.uk/events/transformative-gender-justice/) http://cgd.leeds.ac.uk/events/transformative-gender-justice/ 2 violence in the 1970s and 1980s (e.g. Brownmiller 1975, Kelly 1988), and more recently has been focusing on the issue of sexual violence in war. There is also increasing attention being paid to high levels of violence against women, especially intimate partner violence (IPV), in developing countries. The latest WHO (Garcia- Moreno et al 2005) report concludes that 35% of women worldwide experience physical and/or sexual violence in their lifetime, of which the majority (30%) constitutes intimate partner violence. Nationally, levels of IPV range from 17% in Japan to 71% of women experiencing such violence in Ethiopia に figures that are likely to be much higher in reality given the chronic underreporting and stigma surrounding violence against women in most of the world. The report also indicates that the differences in prevalence are related to gender ideology and to institutionalized gender inequality. Despite the inherent difficulties of producing comparable statistics on violence against women, the findings of this report nevertheless make it clear once more that gender inequality matters. There is a certain consensus in feminist literature about the continuum of gender-based violence: the idea that violence against women may take different forms and be of a different scale during periods of conflicts, but that ultimately, such violence is rooted in existing and surviving gender ideologies and inequalities. However, the term as it was first conceptualised by Liz Kelly (1988) did not only ｷﾐIﾗヴヮﾗヴ;デW HWｴ;┗ｷﾗ┌ヴ デｴ;デ ┘W ┘ﾗ┌ﾉS ヴW;Sｷﾉ┞ ヴWIﾗｪﾐｷゲW ;ゲ け┗ｷﾗﾉWﾐIWげが H┌デ ヴ;デｴWヴ identified a range of interactions and abusive behaviour as being part of the same continuum of behaviour that reinforced the normalisation of women as sexualised ﾗHﾃWIデゲく Tｴ┌ゲ デｴW デWヴﾏげゲ ┌ゲWa┌ﾉﾐWゲゲ ｪﾗWゲ HW┞ﾗﾐS ｷデゲ ;Hｷﾉｷデ┞ デﾗ ｴｷｪｴﾉｷｪｴデ デｴW a;ﾉゲW separation between different forms of violence, by also unpacking underlying and ヮWヴゲｷゲデWﾐデ ヮヴ;IデｷIWゲ デｴ;デ ﾐﾗヴﾏ;ﾉｷゲW ┘ﾗﾏWﾐげゲ ゲ┌HﾗヴSｷﾐ;デW ヮﾗゲｷデｷﾗﾐ ｷﾐ ゲﾗIｷWデ┞く TｴW デWヴﾏが デｴWヴWaﾗヴWが I;ﾐ SWゲIヴｷHW デｴW ﾐﾗヴﾏ;デｷ┗W ゲデヴ┌Iデ┌ヴWゲ デｴ;デ ﾏ;ﾆW ┘ﾗﾏWﾐ けヴ;ヮ;HﾉWげ and vulnerable to abuse. The continuum of violence, therefore, is expressed in the everyday violence that women experience in their homes, on the streets, and in the public sphere. While recognising the existence of a continuum of violence may not lead to useful immediate interventions with regard to the gross violations of human ヴｷｪｴデゲ デｴ;デ ┘ﾗﾏWﾐ ﾏ;┞ W┝ヮWヴｷWﾐIW ｷﾐ ;ﾐ┞ ｪｷ┗Wﾐ IﾗﾐaﾉｷIデが ;ゲ Oげ‘ﾗ┌ヴﾆW ;ヴｪ┌Wゲ ｷﾐ デｴｷゲ issue, it does force us to look at the structures of inequality that are at the basis of such violations. Recognising that women do not only face male violence, sexual or otherwise, during conflict, but before and after conflict on a massive scale means that transitional justice has an obligation to look at ameliorating the structures underlying this violence, whether they be the institutions, norms and values, economic ヴWﾉ;デｷﾗﾐゲ ﾗヴ a;ﾏｷﾉ┞ ゲデヴ┌Iデ┌ヴWゲ デｴ;デ ゲｴ;ヮW ヮWﾗヮﾉWげゲ W┝ヮWヴｷWﾐIWゲが IｴﾗｷIWゲ ;ﾐS opportunities. As feminist scholars have pointed out time and again, it might not really be apt デﾗ ゲヮW;ﾆ ﾗa けヮW;IWげ ｷﾐ ヴWaWヴWﾐIW デﾗ societies where violence against women is chronic and persistent (Jacobs, Jacobson and Marchbank, 2000, Meintjes, Pillay and Turshen 2001, Pankhurst 2003). When everyday violence is ongoing and pervasive, formal けヮW;IWげ ﾏ;┞ ヮヴﾗ┗ｷSW ﾐﾗ ﾏﾗヴW ゲWI┌ヴｷデ┞ for women than societies experiencing political conflict. M;ﾐ┞ けヮW;IWa┌ﾉげ ゲﾗIｷWデｷWゲ a;ｷﾉ デﾗ ヮヴﾗ┗ｷSW ヮｴ┞ゲｷI;ﾉ ゲWI┌ヴｷデ┞が WゲヮWIｷ;ﾉﾉ┞ for particularly marginalised or subordinated groups. As scholars of Guatemala, El Salvador, Peru, Sierra Leone, and South Africa have shown (Menjívar 2011, Sanford 2008, Hume 2009, Boesten 2014, Coulter 2009, Jewkes et al 2009), violence against 3 women can be widespread and normalised in post-conflict societies, indicating an uncomfortable peace at best, or the continuation of war at home at worst. This corresponds to feminｷゲデ IﾗﾐIWヴﾐゲ ;Hﾗ┌デ けﾉﾗ┘-ｷﾐデWﾐゲｷデ┞げ ┗ｷﾗﾉWﾐIW デｴ;デ ﾏ;ﾐ┞ ┘ﾗﾏWﾐ face in non-conflict zones (Wilding 2012), but also links to a growing preoccupation ┘ｷデｴ けヮﾗゲデ-┘;ヴげ IヴｷﾏW ;ﾐS ┗ｷﾗﾉWﾐIW ふKWﾉﾉ┞ ヲヰヰヰが Bﾗ┌ヴｪﾗｷゲ ヲヰヰヱが LAP “ヮWIｷ;ﾉ Iゲゲ┌W 2008). We argue, therefore, that the macro and formal processes that constitute existing elite-driven, formal transitional justice mechanisms exclude, by design, the IﾗﾏヮﾉW┝ｷデ┞ ﾗa ｪWﾐSWヴWS W┝ヮWヴｷWﾐIWゲく E┗Wﾐ ┘ｴWﾐ ┘ﾗﾏWﾐげゲ ┗ﾗｷIWゲ ;ヴW included, as is increasingly the case, the fact that they speak to a different に messier に agenda, means that they are often not heard. As Gready and Robins (2014) point out, the notion of transformative justice proposes the inclusion of more grassroots groups, victims groups and activists, in order to move away from the liberal peace agenda and its top down ways of working. But this has to be done in a way that is sensitive デﾗ ┘ﾗﾏWﾐげゲ ﾐWWSゲく Aゲ MﾗﾐｷI; MIWｷﾉﾉｷ;ﾏゲ ヮﾗｷﾐデゲ ﾗ┌デ in this issue, if you actually ask what peace looks like to women, it bWIﾗﾏWゲ IﾉW;ヴ デｴ;デ ┘ﾗﾏWﾐげゲ ヮヴｷﾗヴｷデｷWゲ ;ヴW ﾃ┌ゲデ ;ゲ ヮﾗﾉｷデｷI;ﾉ ;ゲ ﾏWﾐげゲが H┌デ デｴ;デ ﾉｷﾏｷデWS ┌ﾐSWヴゲデ;ﾐSｷﾐｪゲ ﾗa ┘ｴ;デ ｷゲ けヮﾗﾉｷデｷI;ﾉげ に or what is important in politics に obscures ┘ﾗﾏWﾐげゲ Iﾉ;ｷﾏゲ. “WWｷﾐｪ ┘ﾗﾏWﾐげゲ ┗ﾗｷIWゲ に and the voices of otherwise marginalised groups に as an enrichment of post-conflict political change that has to be taken seriously is then essential in order to build a more peaceful and just society. Highlighting the socio-political nature of structural violence enables us to question the role of the state in the reproduction and escalation of such violences. What role does the state play in ameliorating or challenging gendered violence (Jacobs, Jacobson and Marchbank 2000)? Or in perpetuating and creating violence (Pearce 2010)? The high incidence of violence against women in many societies is one example to draw on. High levels of violence against and among young men is another phenomenon that would benefit from an analysis that includes a socio- political framework and a gendered lens (such as urban and gang violence, Wilding 2010; Hume and Wilding 2015). But not only gender matters; the structural violence presented by poverty, marginalisation, and exclusion shape these forms of physical violence. Paul Gready and Simon Robins (2014 p8) explicitly refer to the importance of addressing socio-economic structures in transitional societies. The authors see three main reasons why this is essential: first, local populations and victim-survivors tend to prioritise economic and social rights; second, socioeconomic injustices are often at the root of conflict, so addressing this would help prevent future conflict; and third, Gready and Robins assert, the human rights field has moved to include social and economic rights alongside civil-political rights, echoing a call made by feminists for many years (e.g. Meintjes and Goldblatt 1996). This recent interest can be seen ;ゲ ﾏﾗ┗ｷﾐｪ ; ゲデWヮ IﾉﾗゲWヴ デﾗ┘;ヴSゲ ヴW;ﾉｷゲｷﾐｪ ; けヮﾗゲｷデｷ┗W ヮW;IWげが ;ゲ Wﾐ┗ｷゲ;ｪWS H┞ G;ﾉデ┌ﾐｪが through the challenge it poses to inequality and poverty, which might otherwise produce fertile terrain for conflict and violence. The need to focus on broader structures facilitating violence is echoed by Matthew Evans (2013, p1), who refers to the need to address structural violations of ｴ┌ﾏ;ﾐ ヴｷｪｴデゲ ┗Wヴゲ┌ゲ けｷﾐSｷ┗ｷS┌;ﾉ ┗ｷﾗﾉ;デｷﾗﾐゲ ﾗa ; ﾐ;ヴヴﾗ┘ ゲWデ ﾗa Iｷ┗ｷﾉ ;ﾐS ヮﾗﾉｷデｷI;ﾉ ヴｷｪｴデゲげく “┌Iｴ ゲデヴ┌Iデ┌ヴ;ﾉ ┗ｷﾗﾉWﾐIWゲ ﾗa ; ゲﾗIｷ;ﾉ ;ﾐS WIﾗﾐﾗﾏｷI ﾐ;デ┌ヴW SｷヴWIデﾉ┞ ｷﾐデWヴゲWIデ ┘ｷデｴ デｴW けｷﾐSｷ┗ｷS┌;ﾉ ┗ｷﾗﾉ;デｷﾗﾐゲげ ﾗa ｴ┌ﾏ;ﾐ ヴｷｪｴデゲ 4 and mass violence, abuses which overlap and reinforce one another. Social and economic rights are often distributed along lines of differentiation, be these of a gendered, racial, ethnic, religious, or class nature, and are thus tightly linked to civil and political rights and manifestations of violence. Therefore, a key underlying question that remains unaddressed in the existing literature is how we can include an analysis of unequal power relations at a societal level that includes the intersecting domination of gender, race, and class as determining vectors of inequality and vulnerability to violence in our conceptualisation of justice. The idea of a transformative approach to justice intends to contribute to that analysis. Transformative Justice The lack of peace for large parts of the population in societies with histories of violence raises significant questions regarding how we understand and attempt to implement けﾃ┌ゲデｷIWげ. Assuming that the notion of justice is based on a distinction between right and wrong, thus setting the boundaries of acceptable behaviour and, ultimately, how we live together, then the neglect or even denial of high-levels of violence that permeates households, streets, and communities sends a clear message to those who experience this violence on a daily basis. Violence is an effective tool of maintaining and enforcing certain power relations, which is experienced through the presence of threat and fear. By allowing everyday forms of violence to continue, it legitimises this violence, isolates those who experience violence and, in doing so, reinforces and reproduces the structures in which such violences are embedded. By recognising gender-based violence as structural, in other words, as something that is formative of social relations, and hence, of social, economic and political configurations of power in any given society, this highlights the fact that ｷデ ゲｴﾗ┌ﾉS ﾐﾗデ HW IﾗﾐゲｷSWヴWS ;ゲ ;ﾐ ｷﾐSｷ┗ｷS┌;ﾉげゲ ヮヴﾗHﾉWﾏが ; ヮヴﾗHﾉWﾏ ﾗa ﾗﾐﾉ┞ ┗ｷIデｷﾏゲ ;ﾐS ヮWヴヮWデヴ;デﾗヴゲが ﾗヴ ; ┘ﾗﾏWﾐげゲ ヮヴﾗHﾉWﾏく Uゲｷﾐｪ デｴW デWヴﾏ けデヴ;ﾐゲaﾗヴﾏ;デｷ┗W ﾃ┌ゲデｷIWげ ｷﾐSｷI;デWゲ ; ﾐWWS aﾗヴ ﾃ┌ゲデｷIW ﾏWIｴ;ﾐｷゲﾏゲ to address the structures and institutionalised inequalities that allow violence against women to persist. TｴW デWヴﾏ けデヴ;ﾐゲaﾗヴﾏ;デｷ┗W ﾃ┌ゲデｷIWげ ｴ;ゲ HWWﾐ IｷヴI┌ﾉ;デｷﾐｪ aﾗヴ some time, and, interestingly, is most widely associated with debates around alternatives to criminal justice in cases of interpersonal violence, especially gender- based violence (Braithwaite and Daley 1994, Braithwaite 1999, Coker 2002). In this body of literature, drawing on socio-psychology and criminal justice, specific forms of restorative justice are discussed as part of a wider agenda of transformation of relationships and self-understanding among victims and offenders. Hence, transformation refers to the potential that different restorative justice mechanisms, as opposed to retributive justice, have the potential to transform social relationships that feed into inter-personal violence. This raises questions around the potential of restorative justice mechanisms at societal level and whether there is a way to use insights from restorative justice to address aspects of structural gender inequalities. However, social and economic structures and inequalities are not centre-stage in restorative justice approaches (Coker 2002, Nocella 2011), something which transformative justice needs to address. As Coker notes (2002), restorative and transformative justice are often used interchangeably in criminology, while the former is very much a form of justice and restoration between individuals. 5 Transformative justice に in conflict settings or in broader society に should take into account institutional bias and structures of inequality (Nocella 2011). Moving into the field of transitional justice, Erin Daly (2002) observes that transformation and transition are too often used interchangeably, while transformation suggests far more radical change at the roots of society than a linear transition from here to there implies. But Daly does not address structural inequalities, as Matthew Evans observes (2013). Instead, Daly emphasises the idea of reconciliation and deterrence as transformative, which are not necessarily apt models for transforming societiesげ inequalities. Within the recent literature that uses the term transformative justice in relation to transitions, there is an emerging understanding that transformation suggests more bottom-up approaches to justice, more involvement and less elitist, as opposed to top-down processes and interventions (Laplante 2008, Gready and Robins 2014, Waldorf forthcoming). As the main victims of conflict are often those who are marginalised from social, economic, and political processes in the first place, participation and voice in determining the form that transitional justice takes seems essential yet overlooked. Discussing reparations programmes, Laplante contends that involvement and participation of victim-survivors in the process of designing mechanisms of redress might help establish an initial form of trust between government and victimised populations, and help establish better buy-in from populations in the reparations that are finally decided upon, which may provide symbolic reparation, as well as starting to break down the structural inequalities at the basis of marginalisation and victimhood. Linking up to this idea of bottom-up forms of justice, Lars Waldorf (forthcoming) explores legal empowerment as a way of providing marginalised populations with the tools to make claims on the state, or other relevant institutional bodies, and carve out a space for themselves. This literature に somewhat scattered and fragmented に is starting to consolidate. Paul Gready and Simon Robins published a comprehensive overview of the debates (2014), and moved this forward by proposing to put participation and process at the centre of transitional justice. As such, they define transformative ﾃ┌ゲデｷIW ;ゲ けデヴ;ﾐゲaﾗヴﾏ;デｷ┗W Iｴ;ﾐｪW デｴ;デ Wﾏヮｴ;ゲｷ┣Wゲ ﾉﾗI;ﾉ ;ｪWﾐI┞ ;ﾐS ヴWゲﾗ┌ヴIWゲが デｴW prioritization of process rather than preconceived outcomes and the challenging of unequal and intersecting power relationships and structures of exclusion at both the ﾉﾗI;ﾉ ;ﾐS デｴW ｪﾉﾗH;ﾉ ﾉW┗Wﾉげ ふヮヲぶく So far so good; however, what this means for ┘ﾗﾏWﾐげゲ ﾃ┌ゲデｷIW Iﾉ;ｷﾏゲ ｷゲ ┞Wデ デﾗ HW Iﾉ;ヴｷaｷWSく Unfortunately, the inclusion of women, despite the UNs active promotion of women at the peace-table and in transitional justice since 2000 (Hudson 2010, Valji 2010), has proved difficult to implement in practice. As Monica McWilli;ﾏゲげ デWゲデｷﾏﾗﾐ┞ ふｷﾐデWヴ┗ｷW┘が デｴｷゲ ｷゲゲ┌W) so vividly demonstrates, once women gain a place in institutional processes, the fight for respect is far from over. So what does transformative gender justice then mean? Transformative Gender Justice As the above discussion suggests, a further inclusion of women in the design and implementation of peacemaking and transitional justice processes and mechanisms is essential for an agenda of more bottom-up inclusion. In practice, this should go 6 beyond the obligatory quotas of women on committees and at peacetables, and should be far more inclusive of and attentive to a myriad of voices, such as activist groups, victim-survivors, local leaders and defenders of human rights. Women and ﾏWﾐげゲ ┌ﾐSWヴゲデ;ﾐSｷﾐｪゲ ﾗa デｴW ﾐWWS aﾗヴ Iｴ;ﾐｪW ｷﾐ デｴWｷヴ ｷﾏﾏWSｷ;デW ゲ┌ヴヴﾗ┌ﾐSｷﾐｪゲ に at community level, at the workplace, and in the institutions that govern daily life, including the family に should be put at the centre of any transitional justice process, in order to not only repair harms done, but in order to help shape a better future. PWヴｴ;ヮゲが ｷﾐ ﾗヴSWヴ デﾗ けHヴW;ﾆげ ┘ｷデｴ ヮ;デデerns of inequality that lead to conflict in the political, social, or family spheres, communication itself should be transformed. The top-down, expert versus lay, politics versus domestic way of understanding governance, could be reimagined as a bottom-up, inclusive and politicised process that can breach the gaps between local, national and global levels of politics. Feminist social transformation is necessary to break the cycles of gender based violence and inequality, but the existing arrangements of liberal peace do not appear suitable for that purpose. TｴW ﾉ;ﾐｪ┌;ｪW ﾗa けデヴ;ﾐゲaﾗヴﾏ;デｷﾗﾐげ has been around in feminist work for a long デｷﾏWが ┘ｷデｴ ｷSW;ゲ ﾗa ; けデヴ;ﾐゲaﾗヴﾏ;デｷ┗W ヮヴﾗﾃWIデげ HWｷﾐｪ ｷﾐゲWヮ;ヴ;HﾉW aヴﾗﾏ デｴW ヮﾗﾉｷデｷI;ﾉ goals of a more just and equal society. Recently, the term has been gaining increasing traction in writings regarding the pursuit of gender justice, not only in the fields of transitional justice but also in other areas, such as in transforming victim- offender relationships. Romi Sigsworth and Nahla Valji (2011), for example, argue that transitional justice mechanisms are failing to address continuous gender-based violence in post-conflict societies because these mechanisms do not aim to undo and remake the social relationships that lead to violence against women. This omission is partly to blame, therefore, for the continuation of sexual violence in war in times of peace (Sigsworth and Valji 2011 in Buckley-Zistel). Rashida Manjoo, UN Special Rapporteur for Violence against Women has similarly called for urgent legal and non- legal measures that can challenge and transform damaging gender relations (cited in UN Women 2011, p97-98). Nevertheless, experts deem several rulings by the Inter- American Court for Human Rights regarding cases of violence against women as examples of transformative justice (UN-Women 2011, Rubio-Marín and Sandoval 2011). The transformative aspects in these rulings lies in the comprehensive reparations pledged to victims-survivors and their victims that include significant state action towards non-repetition and symbolic recognition. At the heart of calls for transformative measures for gender justice lies the analysis that gendered violence is not limited to, nor particularly characteristic of, conflict. While evidence shows that violence against women, especially sexual violence, is often used strategically in conflict ;ゲ ; ┘W;ヮﾗﾐ ﾗa ┘;ヴが けIﾗﾏﾏﾗﾐげ (civilian) sexual violence also tends to increase during conflict. As Holly Porter shows in her research (this issue) on Gulu, Northern Uganda, the majority of rape cases involved non-combatants: boyfriends, husbands, and けゲ┌ｷデﾗヴゲげく Research carried out among demobilised soldiers in the Democratic Republic of Congo also revealed the extent to which rape could either be strategic, in other words part of the conflict, or opportunistic (Eriksson Baaz and Stern, 2009). Cynthia Enloe (2000) already made this point of course in her work on デｴW ﾏｷﾉｷデ;ヴｷ┣;デｷﾗﾐ ﾗa ┘ﾗﾏWﾐげゲ ﾉｷ┗Wゲぎ ゲW┝┌;ﾉ ┗ｷﾗﾉWﾐIW ｴ;ゲ ; ｴｷｪｴ けWﾐデWヴデ;ｷﾐﾏWﾐデげ value among soldiers. The rape regimes which Jelke Boesten (2014) highlights in her work on the war between Shining Path and the 7 armed forces in Peru, showed strong links with peacetime hierarchies based on race, class and gender, and actively reproduced such hierarchies through collective and public, as well as individual and private, acts of violence upon ┘ﾗﾏWﾐげゲ HﾗSｷWゲく All these findings indicate that sexual violence in conflict cannot be separated from the gendered structures of society pre and post conflict. Rape in war, weapon or not, is a product of the inequalities, stereotypes and prejudices that lie at the heart of the continuum of violence against women. Recognising this means we need to move away from seeing sexual violence in war as extraordinary events addressed separately from the social, economic and political context. Rita Shackel and Lucy Fiske present their initial findings from their on-going research in Kenya, Uganda and DRC (this issue) to suggest that gender- based violence and social, economic and political marginalisation are not only intertwined, but mutually constitutive. They show how gender, poverty, and political (often ethnic) status make some women more vulnerable to violence than others, and that this violence also further entrenches marginalisation and poverty. To a certain extent, this echoes BﾗWゲデWﾐげゲ aｷﾐSｷﾐｪゲ (2014) with regard to the reproduction of race, class and gender hierarchies through sexual violence in Peru. Such findings clearly indicate that policies aimed to end sexual violence in conflict need to look beyond individual acts of rape in war to address the broader structures of inequality. TｴW ｪﾗ;ﾉ ﾗa けTransformative Gender Justiceげ, as set out in this issue, explicitly intends to move away from a singular vision of women as victims of conflict-related sexual violence towards a more relational approach. Increasing calls to bring perpetrators to account via international law, specifically in the ICC but also in national courts and tribunals, have done little to actually bring perpetrators to account or provide redress for victim-survivors (Viseur Sellers 2007, Londras 2010, Ní Aoláin, Haynes and Cahn 2011, Brouwer et al 2013). This is in part because of practical and procedural problems around evidence and testimony, but is also related to institutional bias and hierarchies of harm. For example, as Solange Mouthaan shows in this issue, the ICC has difficulty understanding and effectively dealing with the gendered experiences of child soldiers. In part this is because of the limited interpretation of what it is to be a victim に or perpetrator に of sexual violence, and the inability of legal systems to deal with multiple harms, ambiguous victim-perpetrator status, and the agency (and demands) of victim-survivors. On the other hand, the emphasis on women as victims of sexual violence in public processes may further stigmatise women when they ultimately fail to provide justice. Feminist legal scholars such as Karen Engle (2005) and Katherine Franke (2006) argue that the emphasis on criminal accountability for perpetrators of sexual violence exposes victim-survivors to a scrutiny that is personally traumatising, and collectively categorising. け“W┝┌;ﾉ ┗ｷﾗﾉWﾐIW ┗ｷIデｷﾏげ HWIﾗﾏWゲ ; ﾉ;HWﾉが ; ゲIヴｷヮデ ;ゲゲｷｪﾐWS デﾗ IWヴデ;ｷﾐ women from certain groups and regions of the world. Feminists have also expressed concern regarding the narrow emphasis on sexual violence as a marker of the severity of conflict (McWilliams this issue; Palermo and Peterman 2011), to the exclusion of wider harms and abuses. Examining and unpacking the workings of the law and how it is implicated in ﾏ;ｷﾐデ;ｷﾐｷﾐｪ ﾗヴ ヮWヴヮWデ┌;デｷﾐｪ ┘ﾗﾏWﾐげゲ Sｷゲ;S┗;ﾐデ;ｪW ｷﾐ ゲﾗIｷWデ┞ ヮヴﾗ┗ｷSWゲ デﾗ デｴW ┘ﾗヴﾆ of feminist legal scholars in contributing デﾗ けデヴ;ﾐゲaﾗヴﾏ;デｷ┗W ゲﾗIｷ;ﾉ ;ﾐS ヮﾗﾉｷデｷI;ﾉ Iｴ;ﾐｪWげ ふNí Aoláin 2012). Along those lines, in this issue, Torunn Wimpelmann 8 examines law reform in post-2003 Afghanistan. Law reform with regard to violence against women was on the agenda of Western agencies involved in Afghanistan, as ┘Wﾉﾉ ;ゲ ﾗﾐ デｴW ;ｪWﾐS; ﾗa Aaｪｴ;ﾐ ┘ﾗﾏWﾐげゲ ﾗヴｪ;ﾐｷゲ;デｷﾗﾐゲ ;ﾐS ヮヴﾗaWゲゲｷﾗﾐ;ﾉゲく Hﾗ┘W┗Wヴが what resulted has not been transformative, but rather was the product of skewed political relationships and tended to reproduce rather than challenge existing ｪWﾐSWヴWS ｴｷWヴ;ヴIｴｷWゲく Iﾐ Mﾗ┌デｴ;;ﾐげゲ ;ﾐ;ﾉ┞ゲｷゲ ﾗa ｷﾐデWヴﾐ;デｷﾗﾐ;ﾉ Iヴｷﾏｷﾐ;ﾉ ﾉ;┘ ふデｴｷゲ issue), the leg;ﾉ I;デWｪﾗヴｷWゲ ﾗa けIｴｷﾉS ゲﾗﾉSｷWヴげ ;ﾐS け┗ｷIデｷﾏゲ ﾗa ゲW┝┌;ﾉ ┗ｷﾗﾉWﾐIWげ HWIﾗﾏW mutually exclusive and, ultimately, restrict girl soldiers to categories that do not reflect the reality of their experiences. What both cases emphasise once more is that legal processes are seldom transformative for women, as they tend to label women as victims in need of protection. The gender binary that relies on women as victims only, but men as both perpetrators and protectors, ultimately allows for the reproduction of cycles of violence, or rather, reinforces continuums of violence. As Ní Aoláin further stresses (2012, p213), following Doris Buss, there is an inherent tension in feminist activism directed at eradicating gender inequality, and the structure of criminal law, which is directed at individual crimes and perpetrators. This tension speaks to the agency/structure debate, in which the focus on individual responsibility should not be to the detriment of acknowledging structure, or vice versa. With the confines of criminal law, women all too easily become solely the object of harm, instead of the agent (or indeed, subject) of change. It seems clear then that any meaningful transformation is unlikely to emerge from existing institutions and arrangements. As Gina Heathcote and Diane Otto (2014) assert in their reflections on contemporary gender and international peacekeeping and security paradigms, existing international institutions have limited means to pursue gender equality. Monica McWilliams, one of the main actors in the peace process of Northern Ireland, reflects in this issue on her experiences as both activist within, and externally to, the existing institutions (Interview, this issue). Her work in the field shows デｴW SｷaaｷI┌ﾉデ┞ ｷﾐ ｪWデデｷﾐｪ ┘ﾗﾏWﾐげゲ SWﾏ;ﾐSゲ ﾗﾐデﾗ デｴW ;ｪWﾐS; ｷﾐ デｴW ﾏｷSゲデ ﾗa ヮWヴｷﾗSゲ ﾗa けデヴ;ﾐゲaﾗヴﾏ;デｷﾗﾐげが ┘ｴWヴWｷﾐ ┘ﾗﾏWﾐげゲ ｷゲゲ┌Wゲ are automatically assumed to be secondary to the broader goal of formal けヮW;IWげ, a distinction which implies these goals are mutually exclusive, rather than reinforcing one another. As Molyneux (1985) pointed out in the context of the Nicaraguan ヴW┗ﾗﾉ┌デｷﾗﾐが ┘ﾗﾏWﾐげゲ SWﾏ;ﾐSゲ ;ヴW ;ﾉﾉ デﾗﾗ W;ゲｷﾉ┞ IﾗﾐゲｷSWヴWS ゲWIﾗﾐS;ヴ┞ デﾗ デｴW ﾏ;ｷﾐ goal of political transformation に and indeed a threat to the cohesion of the movement. What all contributors to this Special Issue share in common, therefore, is an interest in imagining new ways of responding to persistent social and political violence, since existing responses seem to mitigate and at best repair, but not transform the social and political relationships and institutional arrangements that feed into violence in the first place. As evidenced in this collection of articles, there are multiple causWゲ ﾗa ┗ｷﾗﾉWﾐIW ｷﾐ ┘ﾗﾏWﾐげゲ ﾉｷ┗Wゲが which implies the need to imagine new forms of justice seeking that can accommodate these complex realities. The authors are all concerned with learning lessons across transitional, criminal, and restorative justice at local and global levels to address VAW and gender inequality. This issue is separated into two broad sections. First, we focus on unpacking and analysing why certain understandings of gender justice and associated interventions are not transformative. In highlighting the tensions in contemporary practices in 9 transitional justice, the first four articles aim to contribute to changes in social and political understandings of gender justice. The second set of three papers in this issue look at possibilities for thinking in terms of transformative gender justice, moving the debate with regard to women, peace and transitional justice forward. As Nｷ;ﾏｴ ‘Wｷﾉﾉ┞ ふヲヰヰΑ ヮヱヵヵぶ ゲﾗ ;ヮデﾉ┞ IﾗﾐIﾉ┌SWゲが IﾗﾐゲｷSWヴｷﾐｪ デｴW ヴW;ﾉｷデｷWゲ ﾗa ┘ﾗﾏWﾐげゲ experiences during war け┘ﾗﾏWﾐ IﾉW;ヴﾉ┞ ｴ;┗W ; ﾏ;ﾃﾗヴ ゲデ;ﾆW ｷﾐ ｴﾗ┘ ﾃ┌ゲデｷIW ;ﾐS ｴ┌ﾏ;ﾐ rights are conceptualised and enacted in transitional contexts and how a society ヴWｷﾐ┗Wﾐデゲ ｷデゲWﾉa ｷﾐ デｴW ﾏﾗ┗W ;┘;┞ aヴﾗﾏ ┗ｷﾗﾉWﾐデ IﾗﾐaﾉｷIデげく There is an increasing body of theoretical and empirical scholarship that looks at different aspects of transitional justice with a feminist lens. This critical work feeds into understandings and critiques of interventions intended to address VAW and gender inequality in both post conflict societies and peacetime societies that experience high levels of VAW. One of the main critiques that continues to be made by feminist analysis of contemporary transitional justice, international criminal and human rights law as well as from scholarship looking at the security and ヮW;IWH┌ｷﾉSｷﾐｪ ゲWIデﾗヴゲが ｷゲ デｴW ﾉｷﾏｷデWS ┘;┞ ｷﾐ ┘ｴｷIｴ けｪWﾐSWヴげ ｷゲ ┌ﾐSWヴゲデﾗﾗSく B┞ ;ﾐS large, while gender studies and feminist critique have indicated the need for a relational and intersectional understanding of gender, the term is applied so as to Wケ┌;ﾉ け┘ﾗﾏWﾐげ ふH┌Sゲﾗﾐ ヲヰヱヰが ヮヵヰぶく Since such an interpretation does nothing for an understanding of gender inequality as a societal problem, this way of applying けｪWﾐSWヴげ デﾗ ｷﾐデWヴﾐ;デｷﾗﾐ;ﾉ ヮﾗﾉｷI┞ ;ﾐS ﾉ;┘ デWﾐSゲ デﾗ ヴWヮヴﾗS┌IW ｴ;ヴﾏa┌ﾉ Hｷﾐ;ヴｷWゲ ;ﾐS stereotypes that only reinforce the inequality that is supposedly being challenged ふFヴ;ﾐﾆW ヲヰヰヶき C;ﾏヮHWﾉﾉ ヲヰヰΑき Oげ‘ﾗ┌ヴﾆW ヲヰヱヱき “ﾃﾗHWヴｪ ヲヰヱヱぶく TｴWゲW ;ヴW ｷﾏヮﾗヴデ;ﾐデ insights that need to be repeated over and over, underpinned with empirical evidence, and challenged with proposals for practical solutions. We hope that this Special Issue makes a modest contribution to these efforts. Bibliography Boesten, Jelke. 2014. Sexual Violence in War and Peace. Gender, Power and Postconflict Justice. London & New York, Palgrave. Bourgois, Philippe. 2001. さTｴW Pﾗ┘Wヴ ﾗa ┗ｷﾗﾉWﾐIW ｷﾐ W;ヴ ;ﾐS PW;IWぎ Pﾗゲデ-Cold War LWゲゲﾗﾐゲ aヴﾗﾏ Eﾉ “;ﾉ┗;Sﾗヴざく Ethnography 2:1 5-34 Braithwaite, J., and Kathleen Daly. 1994. Masculinities, Violence and Communitarian Control. Just Boys Doing Business: Men, Masculinity and Crime. Tim Newburn and E. Stanko eds., Routledge. Braithwaite, J. 1999. Restorative Justice: Assessing Optimistic and Pessimistic Accounts. Chicago Journal 25: 1-127. Brouwer, Anne-Marie de, Charlotte Ku, Renée G. Römkens, and L. J. van den Herik. 2013. Sexual Violence as an International Crime: Interdisciplinary Approaches, Series on Transitional Justice. Belgium: Intersentia Publishing nv. Brownmiller, Susan. 1975. Against Our Will: Men, Women and Rape. New York: Ballantine Books. 10 Buckley-Zistel and Zolkos (eds). Gender in Transitional Justice. New York and London: Palgrave Macmillan. C;ﾏヮHWﾉﾉが KｷヴゲデWﾐく さTｴW GWﾐSWヴ ﾗa Tヴ;ﾐゲｷデｷﾗﾐ;ﾉ J┌ゲデｷce: Law, Sexual Violene and the IﾐデWヴﾐ;デｷﾗﾐ;ﾉ Cヴｷﾏｷﾐ;ﾉ TヴｷH┌ﾐ;ﾉ aﾗヴ デｴW FﾗヴﾏWヴ Y┌ｪﾗゲﾉ;┗ｷ;くざ The International Journal of Transitional Justice 1 (2007): 411に432. Coulter, Chris . 2009. Bush Wives and Girl Soldiers: Women's Lives through War and Peace in Sierra Leone. Ithica: Cornell University Press. Coker, D. 2002. Transformative Justice: Anti-Subordination Process in Cases of Domestic Violence. Restorative Justice and Family Violence. Heather Strang and John Braithwaite. Cambridge University Press: 128-152. Daly, Erin, 2002. Transformative Justice: Charting a Path to Reconciliation, International Legal Perspectives. Vol. 12, pp73-183. Engle, Karen. 2005. さFWﾏｷﾐｷゲﾏ ;ﾐS Iデゲ ふDｷゲぶCﾗﾐデWﾐデゲぎ Cヴｷﾏｷﾐ;ﾉｷ┣ｷﾐｪ W;ヴデｷﾏW ‘;ヮW ｷﾐ Bﾗゲﾐｷ; ;ﾐS HWヴ┣Wｪﾗ┗ｷﾐ;くざ The American Journal of International Law 99: 778に816. Enloe, Cynthia, 2000. Maneuvers: The Intern;デｷﾗﾐ;ﾉ PﾗﾉｷデｷIゲ ﾗa Mｷﾉｷデ;ヴｷ┣ｷﾐｪ WﾗﾏWﾐげゲ Lives. Berkeley: University of California Press. Eriksson Baaz, Maria, and Maria Stern. 2009 さWｴ┞ Dﾗ “ﾗﾉSｷWヴゲ ‘;ヮWい M;ゲI┌ﾉｷﾐｷデ┞が VｷﾗﾉWﾐIWが ;ﾐS “W┝┌;ﾉｷデ┞ ｷﾐ デｴW AヴﾏWS FﾗヴIWゲ ｷﾐ デｴW D‘Cくざ International Studies Quarterly 53: 495に518. Evans, Matthew, 2013. Land, socio-economic rights and transformative justice, Paper presented at Comparative Perspective Conference, University of Cape Town, 24-27 March. Franke, Katherine. 2006. さGWﾐSWヴWS “┌HﾃWIデゲ ﾗa Tヴ;ﾐゲｷデｷﾗﾐ;ﾉ J┌ゲデｷIWくざ Columbia Journal of Gender and Law 15 : 813. Garcia-Moreno, Claudia, Henrica AFM Jansen, Mary Ellsberg, Lori Heise, Charlotte Watts. 2005. WHO Multi-country Study on Women's Health and Domestic Violence against Women. Geneva, World Health Organization. Jく G;ﾉデ┌ﾐｪく さVｷﾗﾉWﾐIWが PW;IW ;ﾐS PW;IW ‘WゲW;ヴIｴざく Journal of Peace Research 6 (3) 1969: pp 167-191. Gready, Paul and Simon Robins, 2014. From Transitional to Transformative Justice: A new agenda for practice. International Journal of Transitional Justice, first published online August 14. Heathcote, Gina, and Diane Otto, 2014. Rethinking Peacekeeping, Gender Equality and Collective Security. New York & London, Palgrave. Hudson. Natalie Florea 2010. Gender, Human Security and the United Nations. Security language as a political framework for women. Abingdon: Routledge Hume, Mo, 2009. The Politics of Violence. Gender, Conflict and Community in El Salvador. Bulletin of Latin American Research Book Series, Chichester: Wiley- Blackwell. 11 Hume, Mo and Polly Wilding. 2015. さEs que para ellos el deporte es matarざぎ Rethinking the Scripts of Violent Men in El Salvador and Brazil. In Violence at the Urban Margins. Auyero, Javier, Philippe Bourgois, and Nancy Scheper-Hughes (editors). Oxford, Oxford University Press. Jacobs, Susie M., Ruth Jacobson, and Jen Marchbank. 2000. States of Conflict: Gender, Violence, and Resistance. London & New York: Zed Books. Jewkes, Rachel, N. Abrahams, S. Mathews, M. Seedat, A. Van Niekerk, S. Suffla, and K. Ratele. 2009. さPヴW┗Wﾐデｷﾐｪ ‘;ヮW ;ﾐS VｷﾗﾉWﾐIW ｷﾐ “ﾗ┌デｴ AaヴｷI;ぎ C;ﾉﾉ aﾗヴ LW;SWヴゲｴｷヮ ｷﾐ ; NW┘ AｪWﾐS; aﾗヴ AIデｷﾗﾐくざ Iﾐ MRC Policy Brief. Pretoria, SA. Kelly, Liz. 1988. Surviving Sexual Violence. Cambridge, Polity Press. Kelly, Liz, 2000. Wars Against Women: Sexual Violence, Sexual Politics and the Militarised State. In: States of Conflict: Gender, Violence and Resistance. S. Jacobs, R. Jacobson and J. Marchbank (eds). London, Zed. L;ヮﾉ;ﾐデWが Lｷゲ; Jく ヲヰヰΒく けTヴ;ﾐゲｷデｷﾗﾐ;ﾉ J┌ゲデｷIW ;ﾐS PW;IW B┌ｷﾉSｷﾐｪぎ Dｷ;ｪﾐﾗゲｷﾐｪ ;ﾐS Addressing the Socioeconomic Roots of Violence through a Human Rights Fヴ;ﾏW┘ﾗヴﾆがげ International Journal of Transitional Justice 2(3) (): 331に355. Latin American Perspectives (LAP) Special Issue. 2008 さPﾗ┘Wヴが FﾗヴIW ;ﾐS “ﾗIｷ;ﾉ Tヴ;ﾐゲaﾗヴﾏ;デｷﾗﾐざく Latin American Perspectives 35:5. LﾗﾐSヴ;ゲが Fｷﾗﾐ; SWく さPヴﾗゲWI┌デｷﾐｪ “W┝┌;ﾉ VｷﾗﾉWﾐIW ｷﾐ デｴW AS HﾗI IﾐデWヴﾐ;デｷﾗﾐ;ﾉ Cヴｷﾏｷﾐ;ﾉ TヴｷH┌ﾐ;ﾉゲ aﾗヴ ‘┘;ﾐS; ;ﾐS デｴW FﾗヴﾏWヴ Y┌ｪﾗゲﾉ;┗ｷ;くざ Iﾐ Transcending the Boundaries of Law. Generations of Feminism and Legal Theory, edited by Martha Albertson Fineman, 290に304. London and New York: Routledge, 2010. Meintjes, Sheila, Anu Pillay, and Meredeth Turshen. 2001. The Aftermath: Women in Post-War Transformation. London and New York: Zed Books. Meintjes, S., y B. Goldblatt. 1996. Gender and the Truth and Reconciliation Commission. 1996. http://sunsit.wits.ac.za/csrv/papkhul.htm, consultado el 10 de noviembre de 2005. Menjívar, Cecilia. 2011. EﾐS┌ヴｷﾐｪ VｷﾗﾉWﾐIWぎ L;Sｷﾐ; WﾗﾏWﾐげゲ Lｷ┗Wゲ ｷﾐ G┌;デWﾏ;ﾉ;. Berkeley: University of California Press. Molyneux, Maxine. 1985. さMﾗHｷﾉｷ┣;デｷﾗﾐ ┘ｷデｴﾗ┌デ Wﾏ;ﾐIｷヮ;デｷﾗﾐい WﾗﾏWﾐげゲ ｷﾐデWヴWゲデゲが ゲデ;デW ;ﾐS ヴW┗ﾗﾉ┌デｷﾗﾐ ｷﾐ NｷI;ヴ;ｪ┌;くざ Feminist Studies. Vol. 11, No. 2. Ní Aoláin, Fionnuala, Dina Francesca Haynes and Naomi Cahn. 2011. On the Frontlines: Gender, War, and the Post-Conflict Process. Oxford, New York: Oxford University Press. Ní Aoláin, Fionnuala 2012. Advancing Feminist Positioning in the Field of Transitional Justice. The International Journal of Transitional Justice, Vol. 6, 205に228. Nocella II, Anthony J. 2011. An Overview of the History and Theory of Transformative Justice, Peace & Conflict Review, Volume 6, Issue 1, pp1-11. O'Rourke, Catherine 2011. Transitioning to What? Transitional Justice and Gendered Citizenship in Chile and Colombia. In: Buckley-Zistel and Zolkos (eds). Gender in Transitional Justice. New York and London: Palgrave Macmillan. http://sunsit.wits.ac.za/csrv/papkhul.htm http://eprints.ulster.ac.uk/20805 http://eprints.ulster.ac.uk/20805 12 Palermo, Tia and Amber Peterman. 2011. Undercounting, overcounting and the longevity of flawed estimates: statistics on sexual violence in conflict. Bulletin of the World Health Organization; 89:924-925. Pankhurst, Donna. 2ヰヰンく さTｴW さ“W┝ W;ヴざ ;ﾐS OデｴWヴ W;ヴゲぎ Tﾗ┘;ヴSゲ ; FWﾏｷﾐｷゲデ Aヮヮヴﾗ;Iｴ デﾗ PW;IW B┌ｷﾉSｷﾐｪくざ Development in Practice. 13: 154に177. Pearce, J. 2010. Perverse State Formation and Securitised Democracy in Latin AﾏWヴｷI;ざ Democratization, Special Issue on Democracy and Violence 17 (22) 286 に 306. Reilly, Niamh, 2007. Seeking Gender Justice in Post-Conflict Transitions: Towards a Tヴ;ﾐゲaﾗヴﾏ;デｷ┗W WﾗﾏWﾐげゲ H┌ﾏ;ﾐ ‘ｷｪｴデゲ Aヮヮヴﾗ;Iｴく International Journal of Law in Context. 3:2, pp. 155に172. Rubio-Marín, Ruth, and Clara Sandoval. 2011. Engendering the Reparations Jurisprudence of the Inter-American Court of Human Rights: The Promise of the Cotton Field Judgement. Human Rights Quarterly 33:4 1062に1091. Sanford, Victoria. ヲヰヰΒく さFヴﾗﾏ GWﾐﾗIｷSW デﾗ FWﾏｷﾐｷIｷSe: Impunity and Human Rights in Twenty-Fｷヴゲデ CWﾐデ┌ヴ┞ G┌;デWﾏ;ﾉ;くざ Journal of Human Rights. 7, 104に122. Sigsworth, Romi, and Nahla Valji. 2011. Continuities of Violence against Women in South Africa. In: Buckley-Zistel and Zolkos (eds). Gender in Transitional Justice. New York and London: Palgrave Macmillan. Sjoberg, L., 2011, Gender, the State, and War Redux Feminist International Relations ;Iヴﾗゲゲ デｴW けLW┗Wﾉゲ ﾗa Aﾐ;ﾉ┞ゲｷゲげぎ International Relations, v. 25, p. 108-134. UNWomen. 2011. Progress of the WﾗヴﾉSげゲ WﾗﾏWﾐ ヲヰヱヱに2012: In Pursuit of Justice. New York: United Nations Entity for Gender Equality and the Empowerment of Women. Valji, Nahla. 2010. A Window of Opportunity: Making Transitional Justice Work for Women. New York, UN Women. Viseur Sellers, Patricia 2007. The Prosecution of Sexual Violence in Conflict: the Importance of Human Rights as Means of Interpretation, United Nations Office of Human Rights, 1-41. Waldorf, Lars, Forthcoming. Introduction: Legal empowerment in Transitions. Special Issue on Legal Empowerment. International Journal of Human Rights. WｷﾉSｷﾐｪが Pﾗﾉﾉ┞く ヲヰヱヰく さけNW┘ VｷﾗﾉWﾐIWげぎ “ｷﾉWﾐIｷﾐｪ WﾗﾏWﾐろゲ E┝ヮWヴｷWﾐIWゲ ｷﾐ デｴW F;┗Wﾉ;ゲ ﾗa Bヴ;┣ｷﾉざが Jﾗ┌ヴﾐ;ﾉ of Latin American Studies. 42: 719-747. Wilding, Polly. 2012. Negotiating Boundaries: Gender, Violence and Transformation in Brazil. London, Palgrave Macmillan. 
work_wfumvs2hmnetffy2lpmrdgswa4	----	Drug War Lies 2007: Still More Shenanigans from the Office of National Drug Control Policy Robinson, Matthew B., (2010). Assessing Criminal Justice Practice Using Social Justice Theory. Social Justice Research. 23: 77-97. [Mar. 20, 2010] (ISSN: 0885-7466) Springer -- The original publication is available at www.springerlink.com Assessing Criminal Justice Practice Using Social Justice Theory Matthew Robinson, PhD ABSTRACT In this paper, I introduce two of the leading theories of social justice put forth by John Rawls and David Miller. Then, I assess criminal justice practice, from law-making to corrections, in terms of ways in which it is consistent and inconsistent with these theories of social justice. Throughout the paper, I also identify ways in which criminal justice practice is inconsistent with social justice. I make recommendations for reforming criminal justice to make it more consistent with social justice. ARTICLE Realizing Socially Just Criminal Justice Agencies INTRODUCTION Criminal justice agencies have been facing serious criticisms from scholars in criminal justice, criminology and related disciplines. One main claim is that criminal justice agencies are ineffective at meeting their goals, especially achieving justice (Robinson, 2009). Others say the “criminal justice system” may actually be aimed at controlling certain segments of the http://www.springerlink.com/ 1 population – the dangerous classes – in order to serve ideological interests of the powerful (Reiman, 2006; Shelden, 2007). Whatever the case, few would argue with the point that there are major inconsistencies between criminal justice practice and efforts to bring about social justice (Arrigo, 1998). “Social justice” is generally equated with the notion of equality or equal opportunity in society. Although equality is undeniably part of social justice, the meaning of social justice is actually much broader (Scherlen and Robinson, 2008). Further, “equal opportunity” and similar phrases such as “personal responsibility” have been used to diminish the prospective for realizing social justice by justifying enormous inequalities in modern society (Berry, 2005). The most recent theories of, and scholarly statements about, social justice illustrate the complex nature of the concept. Two of the most prominent statements about social justice, each of which posits its own theory of social justice, are John Rawls’ (2003) Justice as Fairness and David Miller’s (2003) Principles of Social Justice. Both conceptions of social justice are similar, so there is significant overlap between the main ideas of the theorists; this is likely due to the fact that they are founded on like principles and based on previously posited theories from significant historical political philosophers (Brighouse, 2005). In this paper, I thoroughly summarize the social justice theories of John Rawls and David Miller. Then, I utilize the two theories to assess the current state of criminal justice practice as it relates to social justice. One goal of the paper is to show how America’s “criminal justice system” is both consistent and inconsistent with these theories of social justice – i.e., how criminal justice helps bring about but also interferes with the realization of social justice. 2 Another goal is to make suggestions to make criminal justice practice more consistent with social justice as laid out in the theories of Rawls and Miller. My effort is not the first to examine criminal justice practice for the presence of biases based on extra-legal factors such as race, social class and so forth; many of the problems with criminal justice identified in this paper have been documented elsewhere (e.g., see Omi, 1994; Sidanius and Pratto, 2001). The main contribution of this paper is I specifically show how these problems in criminal justice threaten the realization of social justice, at least as social justice has been characterized by John Rawls and David Miller. JOHN RAWLS Goal and Assumptions John Rawls posits a theory of social justice commonly referred to as “justice as fairness.” Rawls (2003: 5-6) set out to sketch a theory of social justice that would answer the questions: “once we view a democratic society as a fair system of social cooperation between citizens regarded as free and equal, what principles are most appropriate to it?” and “…which principles are most appropriate for a democratic society that not only professes but wants to take seriously … that citizens are free and equal, and tries to realize that idea in its main institutions?” Rawls develops his theory for a democratic system of government, and he assumes that society is composed of a fair system of social cooperation between free and equal citizens. He also assumes that society is well-organized and regulated by a public perception of justice. Further, he assumes that society is guided by rules and procedures that are publicly recognized and agreed to, that the rules specify fair terms of cooperation and are rooted in the notion of reciprocity or mutuality so that each person has a chance to promote his or her own advantage or good. Thus, his theory is aimed at determining the “political conception of justice for specifying 3 the fair terms of cooperation between citizens regarded as fair and equal and as both reasonable and rational … (Rawls, 2003: 7-8). Rawls’ conception of social justice is developed around the idea of a social contract, whereby people freely enter into an agreement to follow certain rules for the betterment of everyone, without considering the implications of these rules for their own selfish gain. Rawls posits that rational, free people will agree to play by the rules under fair conditions and that this agreement is necessary to assure social justice because public support is critical to the acceptance of the rules of the game. These rules or principles “specify the basic rights and duties to be assigned by the main political and social institutions, and they regulate the division of benefits arising from social cooperation and allot the burdens necessary to sustain it” (Rawls, 2003: 7). Thus, social justice is about the advantages and disadvantages of society and how they should be distributed. This also is asserted by David Miller (2003), whose theory of social justice is reviewed later in the paper. Rawls does not suggest that everyone will agree with what justice specifically requires in given situations, but rather that his conception of justice as fairness can fit into “conflicting doctrines” because of what he calls “overlapping consensus.” That is, people agree enough about the basic principles of justice he offers that even when they disagree about larger moral, religious of philosophical issues they can still agree about issues of social justice (Rawls, 2003: 32-37). Finally, Rawls does not posit an unrealistically utopian vision of what is justice but instead offers a theory of social justice that is “realistically utopian” (Rawls, 2003: 4). Rawls attempts to answer “[w]hat would a just democratic society be like under reasonably favorable 4 by still possible historical conditions, conditions allowed by the laws and tendencies of the social world?” What is Social Justice? To Rawls, social justice is about assuring the protection of equal access to liberties, rights, and opportunities, as well as taking care of the least advantaged members of society. Thus, whether something is consistent with social justice depends on whether it promotes or hinders equality of access to civil liberties, human rights, opportunities for healthy and fulfilling lives, as well as whether it allocates a fair share of benefits to the least advantaged members of society. Rawls’ theory of “justice as fairness” can be summarized with three primary principles. They are: 1) Each person has the same indefensible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all 1 ; 2) Social and economic inequalities are to satisfy two conditions: First, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity 2 ; and 3) Second, they are to be to the greatest benefit of the least-advantaged members of society 3 (Rawls, 2003: 42-43). By the least advantaged, Rawls is referring to those who lack what he calls “primary goods” (Rawls, 2003: 53). Primary goods, according to Rawls, include “things needed and required by persons seen in the light of the political conception of persons, as citizens who are 1 This can be called the “equal liberties principle.” 2 This can be called the “equal opportunity principle.” 3 Rawls calls this the “difference principle.” 5 fully cooperating members of society, and not merely as human beings apart from any normative conception. These goods are things citizens need as free and equal persons living a complete life; they are not things it is simply rational to want or desire, or to prefer or even to crave” (Rawls, 2003: 58). Such goods include: The basic rights and liberties: freedom of thought and liberty of conscience, and the rest; Freedom of movement and free choice of occupation against a background of diverse opportunities, which opportunities allow the pursuit of a variety of ends and give effect to decisions to revise and alter them; Powers and prerogatives of office and position of authority and responsibility; Income and wealth, understood as all-purpose means (having an exchange value) generally needed to achieve a wide range of ends whatever they may be; and The social bases of self-respect, understood as those aspects of basic institutions normally essential if citizens are to have a lively sense of their worth as persons and to be able to advance their ends with self-confidence (Rawls, 2003: 58-59). It should be noted that Rawls (2003: 13) acknowledges the importance of “human rights” as well. He writes: “A just world order is perhaps best seen as a society of peoples, each people maintaining a well-ordered and decent political (domestic) regime, not necessarily democratic but fully respecting basic human rights.” Human rights are expansive and include many rights relevant to criminal justice including but not limited to the rights to life; liberty; security; equality before the law; fair and public hearings by independent and impartial tribunals; presumption of innocence until proven guilty; freedom of peaceful assembly and association; the right to participate in government; freedom from slavery, servitude, torture or cruel, inhuman or 6 degrading treatment or punishment; discrimination; arbitrary arrest, detention, or exile; arbitrary interference with privacy; among many others. 4 To Rawls, liberty is the most important element of social justice because the three principles are ordered in terms of importance; this means the first principle (the “equal liberties principle”) should be achieved before efforts to achieve the second principle (the “equal opportunity principle”) and third principle (the “difference principle”) are attempted. The second and third principles should “always to be applied within a setting of background institutions that satisfy the requirements of the first principle (including the requirement of securing the fair value of the political liberties) …” (Rawls, 2003: 46). Background institutions refer to basic structures of society (e.g., family, school, religion, economy, polity), which, when just, can be referred to as “background justice” (Rawls, 2003: 10). Logically, agencies of criminal justice are included in these societal institutions. The Scope of the Principles Not only can Rawls’ first principle be differentiated from the second in terms of priority or importance, each also has its own scope. That is, each is meant to have its own unique applications. According to Rawls, the first principle applies to the “constitutional essentials” whereas the second applies to “the background institutions of social and economic justice in the form most appropriate to citizens seen as free and equal” (Rawls, 2003: 47-48). Rawls explains that the principles of justice as fairness are adopted and applied in a four- stage sequence. The first is the adoption of the principles of justice to regulate a society. Rawls (2003: 15) asserts that these must be adopted behind a “veil of ignorance,” which exists when 4 For other examples, see the Universal Declaration of Human Rights, Covenant on Civil and Political Rights, Covenant on Economic, Social, and Cultural Rights, and other similar documents. “A Summary of Agreements on Human Rights.” Retrieved from http://www.hrweb.org/legal/undocs.html http://www.hrweb.org/legal/undocs.html 7 there is a limit on information because “parties are not allowed to know the social positions or the particular comprehensive doctrines of the people they represent. They also do not know persons’ race and ethnic group, sex, or various native endowments such as strength and intelligence, all within the normal range.” 5 The second phase is the constitutional convention, which sets forth the institutions and basic processes of governance. The third stage is the legislative stage, where just laws are enacted. Finally, the fourth stage is the application of the rules by administrators, the interpretation of the constitution and laws by the judiciary, and the following of the rules by members of society in the conditions required by justice as fairness. DAVID MILLER Goal and Assumptions David Miller posits a pluralistic and circumstantial theory of social justice that is built around those principles of justice that people actually hold. Miller (2003) develops his theory for a democratic system of government, and he assumes that society is a living organism composed of individuals, groups, and so forth who believe in social justice because it specifies the institutional arrangements that allow for full contributions by and well-being of members of the society. Further, his theory assumes a bounded society with members; that there are specific institutions to which the principles of social justice apply; and that the state is the agency capable of changing structures when necessary. The theory can be considered pluralistic or circumstantial because different parts of his conception of social justice are more or less relevant depending on the circumstances. That is, social justice depends on the context of given situations. 5 Criminal justice scholars often refer to “blind justice” when discussing how factors such as race, ethnicity, gender, social class, and other extra legal factors should not impact outcomes of justice (Robinson, 2009). 8 Millers’ goal was to discover those principles people actually use when judging whether parts of society are just or unjust. Miller created his theory from public opinion polls and studies of public opinion with regard to different elements of justice. He does this in part because, while social justice must be “critical” in nature so that changes toward more fairness in society can be achieved, it must not be utopian. That is, it must be supported by citizens and can realistically be achieved; this is something with which John Rawls agreed. It is important to note that Miller finds that people’s views of justice are actually pluralistic in that they are determined by the context of a situation. This suggests that whether something is judged as just or unjust depends not only on the principles of justice that people hold but also in part on the nature of the situation. What is Social Justice? To Miller, social justice deals with the distribution of good (advantages) and bad (disadvantages) in society, and more specifically with how these things should be distributed within society. Further, social justice is concerned with the ways that resources are allocated to people by social institutions. Some of the advantages relevant for social justice include money, property, jobs, education, medical care, child care, care for the elderly, honors and prizes, personal security, housing, transportation, and opportunities for leisure. Some of the disadvantages include military service, dangerous work, and other hardships. Logically, punishment for wrongdoing would also be considered a disadvantage. Keep in mind that Miller’s theory applies to both public goods as well as private commodities. Whether something is just or unjust thus depends on whether advantages and disadvantages are distributed appropriately in society. Miller (2003: 1) explains that when “we attack some policy or some state of affairs as socially unjust, we are claiming that a person, or 9 more usually a category of persons, enjoys fewer advantages than that person or group of persons ought to enjoy (or bears more of the burdens than they ought to bear), given how other members of the society in question are fairing.” Miller clearly points out that, when considering policies to allocate advantages and disadvantages, we must not judge them based on how they benefit us personally: “Justice is about assigning benefits whose values are established by their worth to the relevant population taken as a whole, and it must be blind to personal preferences (Miller, 2003: 8, emphasis added). Further, Miller (2003: 22) says that “justice fundamentally requires us to treat people as equals; or we should understand justice as what people would agree to in advance of knowing their own stake in the decision to be reached.” 6 Social justice efforts can not merely be rationalizations of self-interest; this is another concept agreed to by John Rawls. To Miller, social justice is a social virtue that pertains to what you are due or owed, as well as what you owe others. It requires that everyone agrees to treat others as equals in a manner that is not egocentric or selfish. This does not mean that everyone has to agree on all procedures to bring about justice, for people generally agree on what justice demands (this is called the stability of justice). Miller’s theory focuses on the concepts of need, desert, and equality. Need is a claim that one is lacking in basic necessities and is being harmed or is in danger of being harmed and/or that one’s capacity to function is being impeded (Miller, 2003: 207, 210). Desert is a claim that one has earned reward based on performance, that superior performance should attract superior recognition (Miller, 2003: 134, 141). Equality refers to the social ideal that society regards and 6 This is similar to Rawls’ claim about the “veil of ignorance” and reminds us of the need in criminal justice practice for “blind justice.” 10 treats its citizens as equals, and that benefits such as certain rights should be distributed equally (Miller, 2003: 232). Modes of Human Relationships Miller’s (2003: 25) theory asserts that whether need, desert, or equality takes precedence depends on which “mode of human relationship” is being considered. This is because “we can best understand which demands of justice someone can make of us by looking first at the particular nature of relationship.” A mode of human relationship refers to the different kinds of relationships that people have with one another. Miller specifies three basic modes of human relationships, including the solidaristic community, instrumental associations, and citizenship. A solidaristic community “exists when people share a common identity as members of a relatively stable group with a common ethos” (e.g., family relations). In this mode of human relationship, the principle of distribution according to need is most relevant: “Each member is expected to contribute to relieving the needs of others in proportion to ability, the extent of liability depending upon how close the ties of community are in each case … Needs will be understood in terms of the general ethos of the community. Each community embodies, implicitly or explicitly, a sense of the standards that an adequate human life must meet, and it is in terms of this benchmark that the much-contested distinction between needs, which are matters of justice, and mere wants is drawn” (Miller, 2003: 27). Miller is clear to differentiate needs (meeting what is minimally necessary to avoid harm) versus wants or preferences. Needs are also held to be community-specific rather than individual-specific and thus can vary across places. Instrumental associations exist when “people relate to one another in a utilitarian manner; each has aims and purposes that can best be realized by collaboration with others” (e.g., 11 economic relations). In this mode of human relationship, the principle of distribution according to desert is most relevant: “Each person comes to the association as a free agent with a set of skills and talents that he deploys to advance its goals. Justice is done when he receives back by way of reward an equivalent to the contribution he makes. A person’s deserts, in other words, are fixed by the aims and purposes of the association to which she belongs; these provide the measuring rod in terms of which relative contributions can be judged” (Miller, 2003: 28). Desert is measured based on actual performance rather than efforts or attributes. It assumes that superior performance (not superior talents) should attract superior reward. Desert lies at the heart of a meritocratic system. Finally, citizenship refers to “members of a political society” in “modern liberal democracies” who “are related not just through their communities and their instrumental associations but also as fellow citizens. Anyone who is a full member of such a society is understood to be the bearer of a set of rights and obligations that together define the status of citizen.” In this mode of human relationship, the principle of distribution according to equality is most relevant because everyone in the society is deemed equal in terms of certain rights (Miller, 2003: 30). Here, every citizen deserves equal rights. Because of the citizenship mode, human rights play a significant role in Miller’s theory of social justice. Miller (2003:13) explains that “a central element in any theory of justice will be an account of the basic rights of citizens, which will include rights to various concrete liberties, such as freedom of movement and freedom of speech … an extensive sphere of basic liberty is built into the requirements of social justice itself.” As introduced earlier, human rights are expansive and include rights in many areas. 12 SUMMARY OF AND OVERLAP IN RAWLS’ AND MILLER’S THEORIES OF SOCIAL JUSTICE To summarize the theories, each social justice theorist posits three major principles. John Rawls’ principles assert: 1) Every person should have the same liberties; 2) Inequalities are acceptable if every person has the same opportunity for success; and 3) Inequalities are acceptable if they are arranged to the greatest benefit of the least-advantaged members of society. David Miller’s principles assert that: 1) Every person’s basic needs should be met and not hindered; 2) Every person should enjoy benefits and carry burdens to the degree he or she deserves them; and 3) Each person should be treated equally. There is obviously significant overlap in the theories of Rawls and Millers. For example, Rawls’ equal liberties principle is most similar to Miller’s principle of equality (every citizen deserves the same basic civil liberties and no societal practices should interfere with these rights). Rawls’ difference principle is most similar to Miller’s principle of need (arrangements in society should take care of the basic needs of all people in society and no societal practices should interfere with these needs). And Rawls’ equal opportunity principle is most similar to Miller’s principle of desert (every citizen should have the same opportunity to compete for reward based on performance and societal practices should be set up to assure this outcome). As noted earlier, the overlap in the theories is likely due to the fact that both theories are founded on like principles and based on previously posited theories from significant historical political philosophers. Finally, recall that each principle has its own scope. For example, according to Rawls, the equal liberties principle applies to the establishment of “constitutional essentials.” Thus, the equal liberties principle can be used to assess if citizens enjoy equal liberties according to the 13 law. Rawls’ other principles apply to the main institutions of society, which would include the law, policing, courts, and corrections. As such, the equal opportunity and difference principles apply to the interpretation and application of the law by important societal institutions, including the police, courts, and corrections. Similarly, according to Miller, each principle is more or less relevant depending on the mode of human relationship being considered. In matters of citizenship, the principle of equality is most important. Following this logic, as citizens in the United States, all of us should be treated equally in the eyes of the law (and in its application by agencies of criminal justice). As for the principle of need, this is most relevant for solidaristic communities such as families. However, it is not irrelevant for criminal justice for at least three reasons. First, to the degree that all citizens of a society see themselves as members of an extended family – e.g., an “American family” – where all members are “in this together,” need becomes even more important. Second, to the degree that criminality is driven by efforts to satisfy basic needs (e.g., stealing food to eat), need becomes relevant since punishing people for trying to satisfy basic needs will logically interfere with the ability of people to satisfy their basic needs (Little and Steinberg, 2006). Third, criminal justice processing can interfere with the basic needs of citizens as well, especially minorities and the poor (Lurigio and Loose, 2008). As for the principle of desert, this is most relevant for instrumental associations such as work. However, it is also not irrelevant for criminal justice for at least three reasons. First, many criminological theories assert that criminality is driven by a desire to seek monetary gain; these crimes are even referred to as “instrumental crimes” (Baumer and Gustafson, 2007). Second, if people cannot obtain wealth and their other goals through legal means, some will turn to criminality through “innovation” (Merton, 1938). To whatever degree people innovate because 14 of diminished opportunities for legitimate success, criminal justice processing may be less deserved because of “mitigating” factors such as poverty and unemployment (Ashworth, 1994). Third, it is well accepted among legal scholars that punishment is aimed at satisfying desert; that is, giving offenders what they deserve (Ristroph, 2006). HOW TO USE THE THEORIES For the above reasons, it is entirely appropriate to use the theories of John Rawls and David Miller to assess the performance of government institutions, including the law, policing, courts, and corrections. We can use Rawls’ theory of “justice as fairness” to determine if any institution, process or outcome in society is consistent with social justice. When an institution, process or outcome does not comport with any of Rawls’ principles, we can conclude that it is not consistent with social justice. That is, something is not consistent with Rawls’ conception of social justice if it interferes with any person’s indefensible claims to equal basic liberties (the “equal liberties principle”); or if inequalities in society are not attached to offices and positions open to all under conditions of fair equality of opportunity (the “equal opportunity principle”); or if inequalities in society are not arranged to the greatest benefit of the least-advantaged members of society (the “difference principle”). Similarly, we can use Miller’s pluralistic theory of social justice to determine if any institution, process or outcome in society is consistent with social justice. When an institution, process or outcome does not comport with any of Millers’ principles, we can conclude that it is not consistent with social justice. That is, something is not consistent with Miller’s conception of social justice if it interferes with one’s necessities or hurts one’s capacity to function, if it interferes with claims based on desert, or if it impedes equal opportunity or treatment. 15 These theories can be used to assess any government policy to determine if it is consistent or inconsistent with this theory of social justice. Thus, any criminal justice policy – from law-making to policing, judicial processes, correctional punishments, and so forth – can be judged as consistent or inconsistent with social justice based on whether it is consistent or inconsistent with Rawls’ and Miller’s principles of social justice. This paper is the first to assess criminal justice practice using these theories of social justice. HOW DOES CRIMINAL JUSTICE HELP REALIZE AND INTERFERE WITH SOCIAL JUSTICE? Table 1 identifies key policies, laws, and programs within criminal justice that are consistent with the theories of social justice put forth by John Rawls and David Miller. These are efforts that help bring about social justice in the real world. Each entry is discussed below. 16 LAW POLICE COURTS CORRECTIONS Bill of Rights L.E. Code of Conduct Due process Care, custody of inmates due process Rights protector Adversarial system Inmate classification equal protection Service provider Indigent defense Education, vocational training Sentencing guidelines Defines crimes L.E. Code of Conduct public order Law enforcement citizen protection Crime prevention Peace preserver Table 1: How Criminal Justice is Consistent with Social Justice Table 2 identifies key policies, laws, and programs within criminal justice that are inconsistent with the theories of social justice put forth by John Rawls and David Miller. These are efforts that hinder bring about social justice in the real world. Each entry is also discussed below. 17 LAW POLICE COURTS CORRECTIONS Differential access Enforce biased laws Enforce biased laws Enforce biased laws voting lobbying Abuse discretion Unequal access to defense Unequal application of Do not define crimes sanctions/punishments based on harm Differential arrest, force Plea bargaining Criminalize need Racial profiling Determinate, mandatory Limited access to satisfy sentencing needs Biased laws Table 2: How Criminal Justice is Not Consistent with Social Justice A review of these tables leads to the overriding conclusion that the criminal law (e.g., the Bill of Rights in the US Constitution) was set up to protect civil liberties and to provide for equality, at least ideally. Further, American criminal justice agencies are ideally dedicated to outcomes consistent with social justice (e.g., due process and equal protection). Yet, the reality of criminal justice practice puts criminal justice at conflict with social justice in many ways. Below I discuss some of the ways that criminal justice practice is consistent and inconsistent with social justice as put forth in the theories of John Rawls and David Miller. I start with the law and then move on to police, courts, and corrections. The Law 18 Starting with the Bill of Rights of the United States Constitution, the law establishes due process rights and equal protections for all citizens under the law (Orth, 2003). Thus, it can be seen as consistent with Rawls’ “equal liberties principle” and Miller’s principle of “equality.” Recall that Rawls suggested that his first principle (the “equal liberties” principle) applies to the “constitutional essentials.” The ideal of American criminal justice as found in the US Constitution appears on its face to be consistent with Rawls’ first principle. Also recall that Miller’s conception of equality is to be applied in matters of citizenship, suggesting that all members of a political society in modern liberal democracies be granted the same rights by law. The ideal of American criminal justice as found in the US Constitution thus appears to be consistent with Miller’s equality principle. However, it should be pointed out that historians, sociologists, and other scholars have interpreted the US Constitution differently. That have argued that the Constitution was not written behind a veil of ignorance (and was thus not “blind to personal preference,” as Miller would say). This raises the possibility that the founders may have acted with their own personal interests in mind when they wrote the US Constitution. For example, Charles Beard suggests that the construction of the Constitution was biased against the poor. For example, of the five economic groups that existed in 1787, when the document was drafted in Philadelphia, “the four poorest groups had no representatives at the convention: women, slaves, indentured servants, and propertyless white men” (Harrigan, 2000: 45). Every delegate involved in drafting the Constitution was a white male who owned enough property to be allowed to vote. According to Beard, of the 55 delegates, 38 owned government bonds, 24 earned their living through banking or some other financial investment, 15 owned slaves, and 14 had investments in western lands. Further, of the 55 delegates, “at least 40 percent 19 have been or are slave owners, and a significant proportion of the others profit to some degree as merchants, shippers, lawyers, and bankers from the trade in slaves, commerce in slave-produced agricultural products, or supplying provisions to slaveholders and slave-traders” (Feagin, 2001: 9). Harrigan (2000: 47) suggests that three different types of provisions were written into the Constitution to protect the limited financial interests of wealthy, white male delegates: Those that protected their private property rights; Those that insulated the national government from popular rule; and Those that minimized the influence of the lower-status population in the ratification process. The protections of private property rights included provisions that benefited businesses engaged in trade and economy, bankers and creditors, slave holders, and holders of securities under the Articles of Confederation. Feagin (2000: 10) explains that: At the heart of the Constitution was protection of the property and wealth of the affluent bourgeoisie in the new nation, including property of those enslaved … For the founders, freedom meant the protection of unequal accumulation of property, particularly property that could produce a profit in the emerging capitalistic system. Certain political, economic, and racial interests were conjoined. This was not just a political gathering with the purpose of creating a new major bourgeois-democratic government; it was also a meeting to protect the racial and economic interests of men with substantial property and wealth in the colonies. 20 Popular rule was not set up in the Constitution because people did not directly vote for the president, the Court, or the Senate. Only House members were originally elected by the people, and people could vote only if their congressional districts had at least 30,000 people. This benefited the wealthy. Barriers to voting (such as property ownership requirements) were constructed to discourage a large percentage of people from voting. Because of this, Harrigan concludes: The lower-status population did indeed have nothing to say about the drafting of the Constitution and (whether by choice or coercion) had little to say about ratifying it. Important provisions in the Constitution protected economic interests that were more valuable to the upper-status population than to the lower-status population (p. 53). Similarly, Joe Feagin (2001), traces the roots of American racism to the U.S. Constitution and early Colonial America. He suggests that many of our country’s founders, including Thomas Jefferson, Benjamin Franklin, and James Madison, were greatly influenced by assumptions in Europe about the inherent inferiority of African Americans to Caucasians. Thus, African Americans would specifically to be counted only as three-fifths of a man according to the Article I, Section 2 of the U.S. Constitution. Feagin (2001: 14) asserts that the U.S. Constitutional Convention was something other than what we have learned about in school. He suggests the structure of the nation, as laid out in the Constitution, “was created to maintain separation and oppression at the time and for the foreseeable future. The framers reinforced and legitimated a system of racist oppression that they thought would ensure that whites, especially white men of means, would rule for centuries to come.” 21 According to Feagin (2001: 15), the country’s founders owned slaves and benefited from the unequal treatment of African Americans with Caucasians. “Men of politics like Thomas Jefferson, George Washington, Alexander Hamilton, Patrick Henry, Benjamin Franklin, John Hancock, and Sam Houston enslaved black Americans. Ten U.S. presidents (Washington, Jefferson, James Madison, James Monroe, Andrew Jackson, John Tyler, James Polk, Zachary Taylor, and Ulysses S. Grant) at some point in their lives enslaved African Americans.” Many lawmakers (members of both houses of Congress) were also slave owners, as were those who would interpret the law (members of the U.S. Supreme Court). Not surprisingly, “few major decisions made by the federal legislative and judicial branches went against the interests of the nation’s slaveholding oligarchy, and foreign and domestic policies generally did not conflict with the interests of those centrally involved with the slavery system” (p. 56). To the degree that the claims of these scholars are accurate, then the U.S. Constitution was no written behind a “veil of ignorance” but rather was actually a rationalization of self- interest on the part of wealthy, large land holders and slave owners. This would make those parts of the U.S. Constitution that serve limited interests inconsistent with social justice. The criminal law defines crimes to maintain public order and to protect citizens from harms (Davenport, 2008). Since government protection from willful harmful acts like crimes can be seen as a basic human right or need, this is consistent with Miller’s principle of “need.” To the degree that all citizens are viewed as a family, as noted earlier, this is especially important. Defining crimes to protect citizens and society is also consistent with Rawls’ notion that “primary goods” should be available to all because primary goods include the right of people to live freely and safely. 22 However, from the very beginning of the criminal justice practice, there is differential access to law-making in the form of voting and lobbying activities (Lynch, Michalowski, and Groves, 2000). The poor and people of color are underrepresented among voters and legislators themselves and are also least likely to donate money to political campaigns (Robinson, 2009). This raises the significant possibility of bias in the criminal law, the outcome being that certain groups have their voices and interests represented more than others and that certain acts will be more and less likely to be criminalized not based on degree of harm caused but instead on other political and ideological grounds (Reiman, 2006). Differential access to the criminal law and criminalization of various harms based on differential access to the criminal law are outcomes that are inconsistent with Rawls’ equal opportunities principle as well as Miller’s equality principle. To be consistent with social justice, every citizen should have an equal chance to influence the criminal law and have his or her interests reflected in the criminalization process. Further, it is obvious that the rules and procedures of criminal justice are not created behind a “veil of ignorance,” raising a significant possibility that criminal justice practice is not blind to personal preferences and may thus be created as rationalizations of self-interest (McGarrell and Flanagan, 1987). In fact, all criminal justice policies are lobbied for and against by powerful interests. Groups behind current criminal justice policy are not necessarily motivated by concerns for social justice. One likely outcome of this reality is that many forms of harmful behaviors will not be legislated as crimes and targeted by criminal justice agencies, simply because of who commits them. In fact, although the criminal law is aimed at protecting people from harmful acts, those acts that pose the greatest threats to citizens (i.e., white-collar and corporate crimes) are the ones that are least likely to legislated as crimes and especially as 23 serious crimes (Simon, 2007). Thus, the most dangerous criminals often do not get what they “deserve” (Robinson and Murphy, 2008). This is not consistent with Miller’s concept of desert. To reiterate, since Miller’s concept of desert is most relevant for instrumental associations such as work, the application of desert to the criminalization process may not be viewed as all as entirely appropriate. However, it is well established that being labeled a “criminal” and suffering sanctions from governmental institutions such as the police, courts, and corrections will likely produce outcomes such as “felony disenfranchisement” that interfere with the ability of citizens to engage in instrumental associations such as work (Sennott and Galliher, 2006). Thus, forms of punishment such as incarceration can be seen as inconsistent with social justice to the degree that they interfere with one’s ability to engage in activities such as work that allow people to be rewarded for their contribution to society (Wheelock, 2005). Simultaneously, relatively minor criminals often get far more than they “deserve” based on the harms caused by their behaviors (Meir and Geis, 1997). As one example, Robinson and Murphy (2008) demonstrate, using government data, that corporate and white-collar crime cost Americans at least 1 trillion dollars in direct losses every year, compared to only $20 billion in losses cause by street crime. Yet, less than five percent of police officers are focused on the former, and about 99% of all people incarcerated in the United States are incarcerated for committing the latter. This is inconsistent with Miller’s concept of desert. The argument is that the “worst of the worst” offenders should be subjected to the “worst of the worst” criminal sanctions. In the United States, this is simply not the case. Further, crimes of the poor (e.g., theft) are at times aimed at satisfying basic human “needs” (Agnew, 2005). Thus, the application of the law to stop such acts can be seen as interfering with social justice, at least when the means to achieve ones goals are blocked for 24 reasons such as discrimination, which itself is not consistent with social justice (Simons and Gray, 1989) . That is, if opportunities to succeed through legal means are not truly equally available to all (as they should be according to Rawls), and some people respond through “innovation” by creating new, illegitimate (i.e., criminal) means to achieve their goals (Merton, 1938), then we can see the labeling of some behaviors as crimes as the criminalization of efforts to meet needs. In a nutshell, to the degree that the criminal law is aimed at the crimes committed disproportionately by the poor and people of color while it simultaneously ignores the harmful and culpable acts of the powerful (e.g., wealthy whites), it is unequal, undeserved, not focused on helping people achieve their basic needs, and clearly not aimed at providing the greatest advantage to the least advantaged. Thus, it violates Rawls’ and Miller’s conceptions of “need,” “equality,” “desert,” and the “difference principle.” Further, since police, courts and corrections enforce the criminal law (through arrest, conviction, sentencing, and punishment), any bias in the criminal law will logically be perpetuated through enforcement of that law (Reiman, 2006; Robinson, 2009; Shelden, 2007). This is likely the greatest threat to social justice in criminal justice practice. As shown in Table 2, this threat to social justice (enforcing biased law) is found in policing, courts, and corrections. Policing In policing, the Law Enforcement Code of Conduct specifies that one of the fundamental duties of police is to protect people’s rights, provide important services to the community, as well as enforce the law, prevent crime, and uphold the peace (International Association of Chiefs of Police, 2008). Since all of these which can be seen as “needs” of the community and basic rights of the people, the written functions or roles of police are consistent with Miller’s principle 25 of need and Rawls’ conception of primary goods. Further, rights protection can be seen as a form of policing activity that is consistent with Rawls’ “equal liberties” principle. One good example is at the point where arrest is imminent, police officers read suspects their rights to remain silent in order to protect their Fifth Amendment right against self-incrimination (Stuart, 2008). Yet, since officers have discretion, it can be abused (Alpert, Dunham, and Stroshine, 2005). When it is, it leads to differential police outcomes. For example, poor people and people of color are disproportionately likely to be stopped, searched, arrested, and have force use against them (Walker, Spohn, and DeLone, 2007). They are also more likely to be victims of racial profiling (Withrow, 2005). These are outcomes that are inconsistent with Rawls’ “equal liberties” as well as Miller’s “equality principle.” All citizens deserve to be treated the same by the police and other agents of government, unless their own actions lead them to “deserve” more attention. Racial profiling implies that certain groups in society are being targeted more based on extra-legal factors such as race rather than legal factors such as criminality (Miller, 2007). Further, since criminal justice involvement can interfere with legitimate opportunities such as school and work, it can be seen as a threat to Rawls’ “equal opportunities principle.” And since differential involvement with police tends to harm the least advantaged (Shelden, 2007), it is inconsistent with Rawls’ “difference principle.” To be consistent with Rawls’ difference principle, activities of government institutions such as law enforcement agencies should be arranged to assist the least advantaged not to hinder or hurt them. Recall that historians have pointed out that, historically, law enforcement agencies were used to maintain current power arrangements. Examples include slave patrols, disruption of labor organizing and demonstrations, strike busting, interfering with civil rights, and so forth (Loewen, 26 2007; Zinn, 2003). Clearly, this is not consistent with Rawls’ or Miller’s principles of social justice. Courts In courts, because of due process rights, every citizen has the right to trial, as well as other constitutional protections that are supposed to be upheld in an adversarial process whereby prosecutors and defense attorneys represent different actors in a battle to determine the truth (Neubauer, 2007). Due process is clearly part of Rawls’ “equal liberties” principle as well as Miller’s “equality” principle. Further, efforts are made – e.g., through sentencing guidelines – to produce fair sentences based on legal variables such as offense seriousness and prior record, which is also consistent with Miller’s conception of “equality” (Walker, 2005). Finally, there are clearly measures in place to protect the weak – e.g., indigent defense – and this is consistent with Rawls’ “difference principle” (National Association of Criminal Defense Lawyers, 2008). However, there is unequal access to quality defense representation in criminal cases. For example, those that can afford private attorneys are less likely to sit in jail awaiting trial and are less likely to be incarcerated upon conviction (Bureau of Justice Statistics, 2008), suggesting that the ability to pay for private defense protection does lead to differential outcomes. This is not consistent with Rawls’ “equal liberties” or Miller’s “equality principle.” It is also a threat to Rawls’ “difference principle” because access to quality defense representation is not arranged for the benefit of the least advantaged. Quality of defense can be considered incompatible with Miller’s principle of “desert” for some clients do not have their case adequately defended based merely on their inability to pay. Wrongful convictions, caused mostly by overzealousness on the part of police and prosecutors, as well as faulty eye-witness testimony, are obviously inconsistent with the concept of “desert” 27 (Bell, Clow, and Ricciardelli, 2008). This is true for two reasons: first, no one deserves to be punished for acts they did not commit; second, when wrongful conviction occurs, the factually guilty do not receive the punishment they rightly deserve; they are also free to commit further crimes, causing even more harm to society. The imbalance of power in the courts that exists in America is also not consistent with the values on which the court system was supposedly founded – due process and “innocent until proven guilty.” Currently, the prosecution has much more power than the defense as evidenced by more employees and a much larger budget nationwide. This threatens the ability of defendants to seek and obtain meaningful trials, which necessitates plea bargaining (Walker, 2005). Research shows that plea bargaining occurs for two main reasons: first, the police make too many arrests; second, the courts receive only about 20% of all resources devoted to criminal justice, meaning they do not have enough resources to justify having a trial for every one accused of even serious crimes. The very practice of plea bargaining is not consistent with due process (Fisher, 2003), and thus is not compatible with Rawls’ “equal liberties” principles. In essence, the right to a criminal trial is more myth than fact. Plea bargaining is also inconsistent with Miller’s “equality principle” since plea bargaining is much more likely to occur with poor clients who are not well represented by quality defense attorneys (Padfield, 2009). Plea bargaining also tends not to assign punishments that achieve proper “desert” of guilty criminals. Further, plea bargaining leads to too much punishment for those who are innocent but plead guilty anyway (Siegel, 2005). Walker (2005) shows that both “conservatives” and “liberals” do not like plea bargaining because it satisfies neither the requirements of punitive justice or procedural justice. 28 When trials (rarely) happen, they are plagued by serious threats to principles of social justice. For example, the “voir dire” process routinely results in African Americans being excused from jury service through the use of peremptory challenges (Walker, Spohn, and Delone, 2007). This is a significant threat to equal treatment, due process, and even “desert” (if defendants are convicted in part due to the racial composition of a jury). Research by the Capital Jury Project shows just how important the racial make-up of juries is for outcomes such as conviction and sentencing, even in death penalty cases where someone’s life is literally at stake (Brewer, 2004). The practice of mandatory sentencing is consistent with Miller’s principle of “desert” when it is utilized for the worst offenders (who thus deserve the worst punishment). However, mandatory sentencing is inconsistent with the notion of desert when it is used against relatively harmless criminals who do not deserve such punishment based on the small amount of harm they cause to society. For example, “three strikes” laws have generally been used against non-violent offenders, leading to life imprisonment sentences. Meanwhile, white-collar and corporate offenders rarely are punished at all, even when serious injury or death results (Robinson, 2009). Three strikes laws have also been applied in a racially discriminatory manner, thereby threatening Miller’s “equality” principle (Macallair and Males, 1999; Brown and Jolivette, 2005; Rand, 2005). Corrections In corrections, inmates are classified based on various criteria including their personal needs, inmates are provided care by facilities, and to some degree they are offered educational and vocational opportunities (Clear, Cole, and Reisig, 2008). This is all consistent with Rawls’ “difference principle” and Miller’s conception of “need.” Further, the protection of inmates’ 29 First, Fourth, Fifth, Sixth, and Eighth Amendment rights is also consistent with social justice (American Civil Liberties Union, 2008). Yet, the limited educational and vocational opportunities available to inmates can be considered a threat to the “needs” of inmates (Ross and Richards, 2002). Additionally, any and all unequal application of sanctions in America is a threat to Rawls’ and Miller’s principles of “equal liberties,” “equal opportunity,” “equality,” “desert,” and the “difference principle.” Recall that the practices of criminal justice institutions should respect the civil liberties of all citizens, should be applied in an equal fashion, should be based on desert, and should be arranged to the benefits of the least advantaged. The poor and people of color are disproportionately likely to be exposed to probation, jail, prison, and executions (Barak, Leighton, and Flavin, 2006). To the degree that this is not due to disparate criminality of these groups, it is not consistent with social justice. For example, African American men tend to commit roughly half the murders and robberies in the United States in any given year. In 2006, they accounted for 51% of those arrested for murder and 56% of those arrested for robbery (Sourcebook of Criminal Justice Statistics, 2008). While some use these data to suggest that African Americans are thus more dangerous than whites (New Century Foundation, 2005), murder is but one form of culpable killing and robbery is but one form of taking property. If one were to focus on all forms of culpable killing and property taking behaviors, the vast majority of offenders would be white, for the vast majority of white-collar and corporate offenders are white (Robinson, 2009). Thus, the disproportionate focus on African American offenders owes itself to the fact that criminal justice agencies are aimed at pursuing only certain types of criminals (the street crime variety), and this is inconsistent with the concept 30 of desert that is key to social justice (Lynch, McGurrin, and Fenwick, 2004; Ross and Rothe, 2007; Rothe and Friedrichs, 2006) The harsh conditions of prison – commonly referred to as the “pains of imprisonment” – (Sykes and Western, 2007) are also a threat to social justice. While incarceration is supposed to achieve the goal of incapacitation for the protection of society, imprisonment entails much more than mere removal of one’s freedom. Inmates are routinely subjected to violence, sexual harassment and assault, and similar negative treatments by both other inmates and guards (Jones and Pratt, 2008; Wolff et al., 2007; Wolff et al., 2007b). This is not consistent with the notion of “desert.” Further, it may in the long term result in conditions in society upon inmate release that cause further harm to citizens, something that is also not consistent with social justice. CONCLUSION In this paper, I laid out the main theories of social justice of John Rawls and David Miller. I then briefly identified the ways in which American criminal justice agencies help realize as well as interfere with achieving social justice. When evaluating criminal justice practice against the social justice theories of Rawls and Miller, we see that the ideals of American criminal justice are consistent with social justice while many actual practices of criminal justice agencies make achieving social justice impossible. That is, there is a significant gap between the ideals of criminal justice in the United States and the realities of criminal justice practice. Of course, American criminal justice agencies may or may not even be about social justice (Arrigo, 1998). That is, one reason our “criminal justice system” may not achieve social justice is that it is not even aimed at doing so. This should change. In my opinion, criminal justice agencies should be set up to help achieve social justice, and should also be evaluated for 31 their efforts to do so. This claim is based on the fact that citizens actually hold dear the principles of social justice laid out by Rawls and Miller (Miller, 2003). Given that people actually hold values consistent with social justice, it logically follows that they would not agree to many of our criminal justice practices if they were aware of them. That is, if we defined our criminal justice policies behind a “veil of ignorance” and blind to our own personal preferences, the problems we see in criminal justice practice today would not be present because they threaten our social justice values, as laid out in our criminal justice ideals. 32 REFERENCES Agnew, R. (2005). Pressured Into Crime: An Overview of General Strain Theory. New York: Oxford University Press. Alpert, G., Dunham, R. and Stroshine, M. (2005). Policing: Continuity and Change. Long Grove, Illinois: Waveland. American Civil Liberties Union (2008). Prisoners’ rights. Retrieved December 4, 2008 from: http://www.aclu.org/prison/index.html Arrigo, B. (1998). Social Justice, Criminal Justice. Beverly Hills, CA: Wadsworth. Ashworth, A. (1994). Justifying the grounds for mitigation. Crim. Just. Ethics. 13(1): 5. Barak, G., Leighton, P. and Flavin, J. (2006). Class, Race, Gender, and Crime: The Social Realities of Justice in America (2 nd Ed.). Lanham, MD: Rowman and Littlefield. Baumer, E., and Gustafson, R. (2007). Social organization and instrumental crime: Assessing the empirical validity of classic and contemporary anomie theories. Crim. 45(3): 617. Beard D. (1913). An Economic Interpretation of the Constitution of the United States. New York: MacMillan. http://www.aclu.org/prison/index.html 33 Bell, J., Clow, K. and Ricciardelli, R. (2008). Causes of wrongful conviction: Looking at student knowledge. Journ. of Crim. Just. Educ. 19(1): 75. Benavie, A. (2009). Drugs: America’s Holy War. New York: Routledge. Berry, B. (2005). Why Social Justice Matters. Cambridge, England: Polity Press. Brewer, T. (2004). Race and jurors’ receptivity to mitigation in capital cases: The effect of jurors’, defendants’, and victims’ race in combination. Law and Hum. Behav. 28(5): 529. Brighouse, H. (2005). Justice. Cambridge, England: Polity Press. Brown, B. and Jolivette, G. (2005). A primer: Three strikes – The impact after more than a decade. Retrieved September 30, 2008 from: http://www.lao.ca.gov/2005/3_Strikes/3_strikes_102005.htm Bureau of Justice Statistics (2008). Indigent defense statistics. Retrieved October 9, 2008 from: http://www.ojp.usdoj.gov/bjs/id.htm Clear, T., Cole, G. and Reisig, M. (2008). American Corrections. Beverly Hills, CA: Wadsworth. Davenport, A. (2008). Basic Criminal Law: The Constitution, Procedure, and Crimes (2 nd Ed.). Upper Saddle River, NJ: Prentice Hall. http://www.lao.ca.gov/2005/3_Strikes/3_strikes_102005.htm http://www.ojp.usdoj.gov/bjs/id.htm 34 Feagin, J. (2001). Racist America. New York: Routledge Fisher, G. (2003). Plea Bargaining's Triumph: A History of Plea Bargaining in America. Stanford, CA: Stanford University Press. Harrigan, J. (2000). Empty Dreams, Empty Pockets: Class and Bias in American politics. New York: Addison-Wesley Longman. International Association of Chiefs of Police (2008). Law Enforcement Code of Conduct. Retrieved October 9, 2008 from: http://iacp.org/documents/index.cfm?document_id=94&document_type_id=4&fuseaction=docu ment Jones, T. and Pratt, T. (2008). The prevalence of sexual violence in prison: The state of the knowledge base and implications for evidence-based correctional policy making. Intern. Journ. of Off. Ther. and Compar. Crim. 52(3): 280. Little, M. and Steinberg, L. (2006). Psychological correlates of adolescent drug dealing in the inner city: Potential roles of opportunity, conventional commitments, and maturity. The Journ. of Res. in Crim. and Delinq. 43(4): 357. Loewen, J. (2007). Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong. New York: Touchstone. Lurigio, A. and Loose, A. (2008). The disproportionate incarceration of African Americans for drug offenses: The national and Illinois perspective. Journ. of Ethn. in Crim. Just. 6(3): 223. http://iacp.org/documents/index.cfm?document_id=94&document_type_id=4&fuseaction=document http://iacp.org/documents/index.cfm?document_id=94&document_type_id=4&fuseaction=document 35 Lynch, M., McGurrin, D. and Fenwick, M. (2004). Disappearing act: The representation of corporate crime research in criminological literature. Journ. of Crim. Just. 32(5): 389. Lynch, M., Michalowski, R. and Groves, B. (2000). The New Primer in Radical Criminology: Critical Perspectives on Crime, Power and Identity. Monsey, NY: Willow Tree Press. Meier, R. and Geis, G. (1997). Victimless Crime?: Prostitution, Homosexuality, and Abortion. New York: Oxford. Macallair, D. and Males, M. (1999). Striking out: The failure of California's “Three Strikes and You’re Out” law. Retrieved October 1, 2008 from: http://www.cjcj.org/pubs/three_strikes/strikingout.html McGarrell, E. and Flanagan, T. (1987). Measuring and explaining legislator crime control ideology. The Journ. of Res. in Crim. and Delinq. 24(2): 102. Merton, R. (1938). Social structure and anomie. Amer. Soc. Rev. 3: 672-682. Miller, D. (2003). Principles of Social Justice. Boston, MA: Harvard University Press. Miller, K. (2007). Racial profiling and postmodern society. Journ. of Contemp. Crim. Just. 23(1): 248. National Association of Criminal Defense Lawyers (2008). History of right to counsel. Retrieved October 1, 2008 from http://www.nlada.org/About/About_HistoryDefender http://www.cjcj.org/pubs/three_strikes/strikingout.html http://www.nlada.org/About/About_HistoryDefender 36 Neubauer, D. (2007). America's Courts and the Criminal Justice System. Beverly Hills, CA: Wadsworth. New Century Foundation (2005). The Color of Crime. Retrieved June 6, 2006 from http://www.colorofcrime.com/colorofcrime2005.pdf. Omi, M. (1994). Racial Formation in the United States. New York: Routledge. Orth, J. (2007). Due Process of Law: A Brief History. Lawrence, KS: University of Kansas Press. Padfield, N. (2009). Shining the torch on plea-bargaining. The Camb. Law Journ. 68(1): 11-15. Rand Corporation (2005). California’s new three strikes law. Retrieved October 9, 2008 from: http://www.rand.org/pubs/research_briefs/RB4009/index1.html Rawls, J. (2003). Justice as Fairness: A Restatement 2 nd Ed. Boston, MA: Belknap Press. Reiman, J. (2003). The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice (8 th Ed.). Boston, MA: Allyn & Bacon. Ristroph, A. (2006). Desert, democracy, and sentencing reform. Journ. of Crim. Law & Crim. 96(4): 1293-1352. Robinson, M. (2009). Justice Blind? Ideals and Realities of American Criminal Justice (3 rd Ed.). Upper Saddle River, NJ: Prentice Hall. http://www.colorofcrime.com/colorofcrime2005.pdf http://www.rand.org/pubs/research_briefs/RB4009/index1.html 37 Robinson, M. and Murphy, D. (2008). Greed is Good: Maximization and Elite Deviance in America. Lanham, MD: Rowman and Littlefield. Ross, J. and Richards, S. (2002). Convict Criminology. Beverly Hills, CA: Wadsworth. Ross, J. and Rothe, D. (2007). Swimming upstream: Teaching state crime to students at American universities. Journ. of Crim. Just. Educ. 18(3): 460. Rothe, D. and Friedrichs, D. (2006). The state of the criminology of crimes of the state. Soc. Just. 33(1): 147-161. Scherlen, A. and Robinson, M. (2008). Open access to criminal justice scholarship: A matter of social justice. Journ. of Crim. Just. Educ. 19(1): 54-74. Sennott, C. and Galliher, J. (2006). Lifetime felony disenfranchisement in Florida, Texas, and Iowa: Symbolic and instrumental law. Soc. Just. 33(1): 79-94. Shelden, R. (2000). Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice. Boston, MA: Allyn & Bacon. Sidanius, J., and Pratto, F. (2001). Social Dominance: An Intergroup Theory of Social Hierarchy and Oppression. New York: Cambridge University Press. 38 Siegel, A. (2005). Moving down the wedge of injustice: A proposal for a third generation of wrongful convictions scholarship and advocacy. The Amer. Crim. Law Rev. 42(4): 1219-1237. Simon, D. (2007). Elite Deviance (9 th Ed.). Boston, MA: Allyn & Bacon. Simons, R. and Gray, P. (1989). Perceived blocked opportunity as an explanation of delinquency among lower-class black males: A research note. The Journ. of Res. in Crim. and Delinq. 26(1): 90. Sourcebook of Criminal Justice Statistics (2008). Table 4.1. Arrests by offense charged, age group, and race, United States, 2006. Retrieved October 1, 2008 from http://www.albany.edu/sourcebook/pdf/t4102006.pdf Stuart, G. (2008). Miranda: The Story of America’s Right to Remain Silent. Tucson, AZ: University of Arizona Press. Sykes, G. and Western, B. (2007). The Society of Captives: A Study of a Maximum Security Prison. Princeton, NJ: University of Princeton Press. Walker, S. (2005). Sense and Nonsense about Crime and Drugs: A Policy Guide (7 th Ed.). Belmont, CA: Wadsworth. Walker, S. , Spohn, C. and DeLone, M. (2007). The Color of Justice: Race, Ethnicity, and Crime in America (5 th Ed.). Belmont, CA: Wadsworth. Wheelock, D. (2005). Collateral consequences and racial inequality: Felon status restrictions as a system of disadvantage. Journ. of Contemp. Crim. Just. 21(1): 82. http://www.albany.edu/sourcebook/pdf/t4102006.pdf 39 Withrow, B. (2005). Racial Profiling: From Rhetoric to Reason. Upper Saddle River, NJ: Prentice Hall. Wolff, N., Blitz, C., Shi, J., Siegel, J. and Bachman, R. (2007a). Physical violence inside prisons: Rates of victimization. Crim. Just. and Behav. 34(5): 588. Wolff, N., Shi, J., Blitz, C. and Siegel, J. (2007b). Understanding sexual victimization inside prisons: Factors that predict risk. Crim. & Pub. Pol. 6(3): 535. Zinn, H. (2003). A People’s History of the United States. New York: Harper Perennial. 
work_wgmhbjnaajabtoqbbv3qcoprcq	----	The Criminal Justice Approach: Case Examples Beatrix Elsner & Marcelo Aebi & Bruno Aubusson de Cavarlay & Gwladys Gillieron & Hakan Hakeri & Jörg-Martin Jehle & Martin Killias & Christopher Lewis & Julia Peters & Erika Roth & Paul Smit & Piotr Sobota & Ksenjia Turkovic & Marianne Wade & Josef Zila Published online: 17 July 2008 # Springer Science + Business Media B.V. 2008 Abstract The article presents a special form of a European comparative synopsis. For this case examples have been chosen ranging from administrative or minor (criminal) offences to increasingly serious offences and offenders. In this way it can be comparatively demonstrated how the criminal justice systems studied handle specific cases and whether they do so in a similar or different way. Keywords Case-examples . Synoptical tables . Types of offence, procedure and reaction Eur J Crim Policy Res (2008) 14:123–132 DOI 10.1007/s10610-008-9076-5 B. Elsner (*) Department of Criminology at the Law Faculty, University of Göttingen, Platz der Göttinger Sieben 6, 37073 Göttingen, Germany e-mail: beatrix.elsner@jur.uni-goettingen.de M. Aebi Department of Political Science and Public Law, Universidad Autonoma de Barcelona, Barcelona, Spain e-mail: Marcelo.Aebi@unil.ch B. Aubusson de Cavarlay Center for Sociological Research on Law and Penal Institutions (CESDIP), Ministère de Justice/CNRS, 43 Boulevard Vauban, F-78280 Guyancourt, Paris, France e-mail: aubusson@ext.jussieu.fr G. Gillieron Rechtswissenschaftliches Institut, University of Zürich, Rämistrasse 74/39, 8001 Zürich, Switzerland e-mail: Gwladys.Gillieron@unil.ch H. Hakeri Law Faculty, Selcuk University, Hukuk Fakültesi, Ceza ve Ceza Usul Hukukuk, Anabilim Dalı Başkanı, Alaettin Keykubat Kampüsü, Konya, Turkey e-mail: hakeri@selcuk.edu.tr J.-M. Jehle Department of Criminology, Institute for Criminal Law and Justice at the Law Faculty, University of Göttingen, Platz der Göttinger Sieben 6, Göttingen, Germany e-mail: abtkrim@gwdg.de The main purpose of the case-examples was to present the systems studied comparatively in a less abstract way and to show the study results more tangibly. It may demonstrate the basic differences within and between the systems and illustrate the different procedural forms discussed in the study. The selected cases present a range of various seriousness of offences, it starts with a minor traffic offence and goes on with shop-lifting broken down by the age of the offender and recidivism. On a higher level of seriousness bodily harm was chosen followed by ram-raiding and murder. These case-examples were developed already for the first publication demonstrating the results of the first project wave (see Jehle/Wade Coping with Overloaded Criminal Justice Systems, Heidelberg 2006, pp. 127 onwards). For the second project wave they were used again. The old partners had to actualize their answers where necessary and the new partners (Spain, Switzerland, Croatia, Hungary and Turkey) had to describe the handling of these cases within their systems. The following synoptical tables show the most likely handling of these cases within the respective criminal justice systems and thus give a comparative overview of the different criminal justice approaches to the same cases. M. Killias Institute of Criminology, Criminal Law and Criminal Procedural Law at the Law Faculty, University of Zürich, Rämistrasse 74/39, 8001 Zürich, Switzertland e-mail: martin.killias@rwi.uzh.ch C. Lewis Portsmouth University, University House, Winston Churchill Avenue, Portsmouth, UK/ Hampshire, PO1 2UP e-mail: chris.lewis@port.ac.uk J. Peters Department of Criminology at the Law Faculty, University of Göttingen, Platz der Göttinger Sieben 6, 37073 Göttingen, Germany e-mail: abtkrim@uni-goettingen.de E. Roth Department of Criminal Procedure and Correctional Law Institute of Criminal Sciences Faculty of Law, University of Miskolc, 3515 Miskolc-Egyetemváros, Hungary e-mail: jogerika@uni-miskolc.hu P. Smit Research and Documentation Center (WODC) of the Ministry of Justice, P.O. Box 2031, 2500 EH The Hague, Netherlands e-mail: p.r.smit@minjus.nl P. Sobota University of Warsaw, ul. Krakowskie Przedmieoecie 25, PL-00–950 Warsaw, Poland e-mail: p.sobota@brpo.gov.pl K. Turkovic University of Zagreb, School of Law, Trg marsala Tita 14, 1000 Zagreb, Croatia e-mail: ksenija.turkovic@zg.htnet.hr M. Wade Max-Planck-Institute for Foreign and International Criminal Law, Günterstalstr. 73, 79100 Freiburg i.B., Germany e-mail: m.wade@mpicc.de J. Zila Faculty of Law, Stockholm University, 106 91 Stockholm, Sweden e-mail: Josef.Zila@juridicum.su.se 124 B. Elsner et al. C a se 1 A is ca u g h t d ri v in g 3 0 k m /h o u r ab o v e th e sp ee d li m it . It is h is fi rs t o ff en ce T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H M in o r cr im in al O ff en ce (Ü b er tr et u n g ) S im p li fi ed p ro ce ed in g (“ V er ze ig u n g sv er fa h re n ”) : P o li ce in v es ti g at e th e ca se . T h en ca se is h an d ed to th e ju d g e w h o d el iv er s p en al o rd er s (“ S tr af b ef eh ls ri ch te r” ) F in e W it h d ra w al o f th e d ri v in g li ce n ce th ro u g h th e p o li ce fo r 1 m o n th D O ff en ce ag ai n st o rd er (O rd n u n g sw id ri g ke it ) A d m in . (a u to m at ed ) p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is m o st ly ca u g h t b y ca m er a. F ix ed ad m in . fi n e an d p en al ty p o in ts o n th e d ri v in g li ce n ce . E A d m in is tr at iv e o ff en ce A d m in . (a u to m at ed ) p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is m o st ly ca u g h t b y ca m er a. F ix ed ad m in . fi n e an d p en al ty p o in ts o n th e d ri v in g li ce n ce . E W M in o r cr im in al o ff en ce S im p li fi ed (a u to m at ed ) p ro ce ed in g : p o li ce h av e sp ec ia l u n it s to tr ac k sp ee d in g ca rs v ia p o li ce ca m er as an d is su e fi x ed p en al ti es . O ff en d er is m o st ly ca u g h t b y ca m er a. F ix ed ad m in . fi n e an d 3 p en al ty p o in ts o n th e d ri v in g li ce n ce . F M in o r cr im in al o ff en ce (C o n tr . 4 .) A d m in . (a u to m at ed ) p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is m o st ly ca u g h t b y ca m er a. P ro ce d u ra l al te rn at iv e: p o li ce ta k e ca se to co u rt . F ix ed ad m in . fi n e an d 3 p en al ty p o in ts o n th e d ri v in g li ce n ce . H A d m in is tr at iv e o ff en ce . A d m in is tr at iv e p ro ce d u re b ef o re th e p o li ce . M o st li k el y fi n e an d p en al ty p o in ts o n th e d ri v in g li ce n ce . H R O ff en ce ag ai n st o rd er (a d m in is tr at iv e cr im in al o ff en ce ) (P re kr ša j) A d m in . (a u to m at ed ) p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is o ft en ca u g h t b y ca m er a. If fi n e is n o t p ai d ad m in is tr at iv e o rd er w il l b e is su ed , if th is is n o t p ai d p er so n w il l b e ca ll ed in fr o n t o f ad m in is tr at iv e/ cr im in al co u rt (p re kr ša jn i su d ) F ix ed ad m in . fi n e an d p en al ty p o in ts o n th e d ri v in g li ce n ce . N L M in o r cr im in al o ff en ce (M u ld er la w ) A d m in . (a u to m at ed ) p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is m o st ly ca u g h t b y ca m er a. F ix ed ad m in . fi n e. P L M in o r cr im in al o ff en ce s (W yk ro cz en ia ) A d m in . (a u to m at ed ) p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is m o st ly ca u g h t b y P o li ce o r b y ca m er a. P ro ce d u ra l al te rn at iv e: p o li ce ta k e ca se to M ag . co u rt . F ix ed (a d m in .) fi n e. S M in o r cr im in al o ff en ce S im p li fi ed p ro ce ed in g : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . F ix ed su m m ar y fi n e b y p o li ce an d re co rd in th e cr im in al re g is te r. T R O ff en ce ag ai n st o rd er A d m in is tr at iv e p ro ce d u re : p o li ce ar e in v es ti g at iv e/ p ro se cu to ri al ag en cy . O ff en d er is al w ay s ca u g h t b y p o li ce ca m er a( s) . F ix ed ad m in . F in e an d p en al ty p o in ts o n th e d ri v in g li ce n ce . The criminal justice approach: case examples 125 C a se 2 A n ad u lt st ea ls a sw ea ts h ir t w o rt h 2 0 E u ro s fr o m a sh o p . T h is is a fi rs t o ff en ce T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H M in o r cr im in al O ff en ce (Ü b er tr et u n g ) O ff en ce re q u ir in g an ap p li ca ti o n fo r p ro se cu ti o n F in e S im p li fi ed p ro ce d u re (“ V er ze ig u n g sv er fa h re n ”) . P P S le ad s th e in v es ti g at io n . T h en th e ca se is h an d ed to th e ju d g e w h o d el iv er s p en al o rd er s (S tr af b ef eh ls ri ch te r) D L es s se ri o u s cr im in al o ff en ce (V er g eh en ) P o li ce in v es ti g at e in d ep en d en tl y, P P S th en d ec id es h o w to p ro ce ed . A lt er n at iv e p ro ce ed in g s p o ss ib le : w h ic h o n e d ep en d s o n in d iv id u al ca se an d g u id el in es . C as e w il l p ro b ab ly b e d ro p p ed (p u b li c in te re st ) o r d is p o se d o ff . E M in o r cr im in al o ff en ce (f a lt a ) P o li ce in v es ti g at e an d re p o rt s to E M an d P P S . T ri al in fa lt as p ro ce d u re , in th e E M ’s co u rt , w h er e th e in d ic tm en t is m ad e o ra ll y. N o n ee d fo r d ef en ce la w y er . P le a b ar g ai n is p o ss ib le . F in e E W L es s se ri o u s cr im in al o ff en ce (S u m m a ry o ff en ce ) S o m e st o re s w il l p ro se cu te th em se lv es ; th ey h av e th ei r o w n sa n ct io n . A lt er n at iv el y th e ca se is re p o rt ed to P o li ce th at w il l ca u ti o n . F ix ed fi n e im p o se d b y sh o p o w n er o r ca u ti o n (f o rm al w ar n in g ) b y p o li ce o ff ic er . F L es s se ri o u s cr im in al o ff en ce (D él it ) 1 st -t im e o ff en d er is u su al ly n o t p ro se cu te d :s h o p o w n er ca n fo rc e o ff en d er to re tu rn th e st o le n g o o d an d /o r p ay fo r it . A lt er n at iv el y p o li ce ca n b e ca ll ed an d th en in it ia te p ro se cu ti o n . F ix ed fi n e im p o se d b y sh o p o w n er . R a p p el à la lo i is p o ss ib le . H A d m in is tr at iv e o ff en ce . A d m in is tr at iv e p ro ce d u re . A d m in is tr at iv e sa n ct io n , m o st li k el y w ar n in g o r fi n e. H R C ri m in al o ff en ce (l es s se ri o u s) A cc el er at ed (s im p li fi ed ) cr im in al p ro ce ed in g s (p o li ce h an d o v er th e ca se to P P S , P P S m ay b ri n g ch ar g es w it h o u t in st it u ti n g in v es ti g at io n s, P P S m ay u se co n d it io n al d is p o sa l, o n th e re q u es t o f P P S co u rt m ay is su e p en al o rd er ) F in e u p to 1 5 0 d ai ly in co m es o r im p ri so n m en t u p to 6 m o n th s. (M o st p ro b ab ly ca se w il l b e d ro p p ed as an in si g n if ic an t o ff en ce o r d is p o se d o ff .) N L L es s se ri o u s cr im in al o ff en ce (M is d ri jv en ) S h o p o w n er re p o rt s th e ca se to p o li ce th at w il l th en in it ia te in v es ti g at io n an d d ec id e in h o w fa r a p o li ti et ra n sa ct ie is ap p ro p ri at e. If n o t p o ss ib le : w ri t o f su m m o n s is is su ed an d h an d ed o v er to P P S . P o li ce tr an sa ct io n P L M in o r cr im in al o ff en ce s (W yk ro cz en ia ) In v es ti g at io n is ca rr ie d o u t b y p o li ce in d ep en d en tl y. C as e is th en b ro u g h t to m ag . co u rt b y p o li ce . C o u rt m ay im p o se a fi n e o r a 5 – 3 0 d ay ar re st . S L es s se ri o u s cr im in al o ff en ce P o li ce le ad th e w h o le in v es ti g at io n . T h en ca se is h an d ed o v er to P P S . P P S p ro b ab ly is su es a p en al o rd er . If n o su sp ec t's ag re em en t: ca se w il l g o to co u rt . P ro b ab ly 3 0 d ay -f in es . T R C ri m e In p ra ct ic e p o li ce in v es ti g at e in d ep en d en tl y, b ri n g th e ca se th en to P P S . P re p ay m en t an d m ed ia ti o n ar e n o t p o ss ib le . F in e o r co m . se rv ic e o r p o st p o n in g o f p u n is h m en t 126 B. Elsner et al. C a se 2 v a r. a P et ty th ef t – A 1 5 y ea rs o ld st ea ls a sw ea ts h ir t w o rt h 2 0 E u ro s fr o m a sh o p . T h is is a fi rs t o ff en ce T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H M in o r cr im in al O ff en ce (Ü b er tr et u n g ) O ff en ce re q u ir in g an ap p li ca ti o n fo r p ro se cu ti o n R ep ri m an d (V er w ei s) P P S (f o r ju v en il es ) p ro se cu te s th e ca se in a si m p li fi ed w ay (“ S tr af b ef eh ls v er fa h re n ”) an d im p o se s a sa n ct io n . D L es s se ri o u s cr im in al o ff en ce (V er g eh en ) P o li ce in v es ti g at e in d ep en d en tl y, P P S th en d ec id es h o w to p ro ce ed . A lt er n at iv e p ro ce ed in g s p o ss ib le ; w h ic h o n e d ep en d s o n in d iv id u al ca se an d g u id el in es . P ro b ab ly d ro p p ed (p u b li c in te re st ) o r at le as t d is p o se d o ff (w it h co n d it io n ). E M in o r cr im in al O ff en ce (F a lt a ) P P S co u ld o rd er P o li ce to in v es ti g at e an d fu rt h er se n d th e ju v en il e th e m ed ia ti o n p ro g ra m m e. In ca se th at it w il l b e co n cl u d ed su cc es sf u ll y th e ca se w il l b e d is p o se d o ff (c o n d it io n is th e m ed ia ti o n p ro ce d u re ). E W L es s se ri o u s cr im in al o ff en ce (S u m m a ry o ff en ce ) S o m e st o re s w il l p ro se cu te th em se lv es ; th ey h av e th ei r o w n sa n ct io n . A lt er n at iv el y th e ca se is re p o rt ed to th e p o li ce w h o w il l ca u ti o n . F ix ed fi n e im p o se d b y sh o p o w n er ; re p ri m an d b y p o li ce o ff ic er . F L es s se ri o u s cr im in al o ff en ce (D él it ) 1 st -t im e o ff en d er is u su al ly n o t p ro se cu te d : sh o p o w n er ca n fo rc e o ff en d er to re tu rn th e st o le n g o o d an d /o r p ay fo r it . A lt er n at iv el y p o li ce ca n b e ca ll ed an d th en in it ia te p ro se cu ti o n . F ix ed fi n e im p o se d b y sh o p o w n er ; R a p p el à la lo i is p o ss ib le . H A d m in is tr at iv e o ff en ce . A d m in is tr at iv e p ro ce d u re . A d m in is tr at iv e sa n ct io n , m o st li k el y w ar n in g . H R C ri m in al o ff en ce (l es s se ri o u s) P P S fo r ju v en il es in v es ti g at es an d th en d ec id es h o w to p ro ce ed . M o st p ro b ab ly w il l b e d ec id ed o n th e b as es o f th e p ri n ci p le o f o p p o rt u n it y. O n ly ed u ca ti o n al m ea su re s m ay b e im p o se d – b u t h er e m o st p ro b ab ly th e ca se w o u ld b e d ro p p ed (p u b li c in te re st ) o r at le as t d is p o se d o ff (w it h co n d it io n ). N L L es s se ri o u s cr im in al o ff en ce (M is d ri jv en ) P o li ce in it ia te in v es ti g at io n an d d ec id e in h o w fa r a H al t- re ac ti o n is ap p ro p ri at e. If n o t p o ss ib le : w ri t o f su m m o n s is is su ed an d h an d ed o v er to P P S . P ro b ab ly H A L T -m ea su re w il l b e o ff er ed b y p o li ce o ff ic er . T h en o ff en d er w il l b e se n t to a H A L T -O ff ic e. P L P u n is h ab le ac t In v es ti g at io n b y p o li ce . C as e b ro u g h t to fa m il y co u rt w h ic h w il l in v es ti g at e o ff en d er 's so ci al su rr o u n d in g s an d p er so n al it y. 1 st -t im e o ff en d er : A d m o n it io n b y co u rt . R ec id iv is t: ed u ca ti o n al m ea su re b y co u rt . S L es s se ri o u s cr im in al o ff en ce P o li ce le ad w h o le in v es ti g at io n b ef o re ca se is h an d ed o v er to P P S . P P S p ro b ab ly d ec id es o n w ai v er . If n o t, p en al o rd er w il l b e is su ed . If n o su sp ec t's ag re em en t: C as e w il l g o to co u rt . W ai v er o f p ro se cu ti o n an d th e o ff en ce re co rd ed in th e cr im in al re g is te r. T R C ri m e P o li ce ca n ju st b ri n g th e o ff en d er to P P S an d co ll ec t ev id en ce b ar in te rr o g at io n . P re p ay m en t is n o t p o ss ib le . M ed ia ti o n is p o ss ib le . F in e o r co m . se rv ic e o r p o st p o n in g o f p u n is h m en t/ ch ar g e/ se n te n ce The criminal justice approach: case examples 127 C a se 2 v a r. b P et ty th ef t – A n ad u lt st ea ls a sw ea ts h ir t w o rt h 2 0 E u ro s fr o m a sh o p . H e is a p er si st en t o ff en d er T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H M in o r cr im in al O ff en ce (Ü b er tr et u n g ) O ff en ce re q u ir in g an ap p li ca ti o n fo r p ro se cu ti o n F in e o r sh o rt p ri so n se n te n ce (t il l 3 m o n th s) . S im p li fi ed p ro ce d u re (“ V er ze ig u n g sv er fa h re n ”) . P P S in v es ti g at es in d ep en d en tl y. T h en th e ca se is h an d ed to th e ju d g e w h o d el iv er s p en al o rd er s (S tr af b ef eh ls ri ch te r” ) D L es s se ri o u s cr im in al o ff en ce (V er g eh en ) P o li ce in v es ti g at e in d ep en d en tl y. P P S th en d ec id es h o w to p ro ce ed . If al te rn at iv e p ro ce ed in g s p o ss ib le d ep en d s o n th e co n te n t o f th e d if fe re n t L än d er g u id el in es ; d ro p o r d is p o sa l se em s u n li k el y. P ro b ab ly P P S w il l b ri n g p u b li c ch ar g es . E M in o r cr im in al o ff en ce /l es s se ri o u s o ff en ce 1 (f a lt a /d el it o ) If m in o r cr im in al o ff en ce , p o li ce in v es ti g at es an d re p o rt s to E M an d P P S . T ri al in fa lt as p ro ce d u re , in th e E M ’s co u rt , w h er e th e in d ic tm en t is m ad e o ra ll y. N o n ee d fo r d ef en ce la w y er . P le a b ar g ai n is p o ss ib le . If m in o r cr im in al o ff en ce , fi n e. If le ss se ri o u s o ff en ce , p ri so n se n te n ce (b u t su sp en d ab le ). If le ss se ri o u s o ff en ce , P o li ce w il l in v es ti g at e an d re p o rt to E M an d P P S , as w el l as th e o th er p ar ts im p li ed in th e p ro ce ss . E M d ec id es in st ru ct io n is te rm in at ed , th er ef o re . P P S w ri te s th e fo rm al in d ic tm en t, an d th e d ef en ce p re se n ts th e w ri tt en re p o rt (1 0 d ay s fo r ea ch o th er ). T h en th ey p ro ce ed to tr ia l (A b re v ia d o ). P le a b ar g ai n in g is al so p o ss ib le . E W L es s se ri o u s cr im in al o ff en ce (S u m m a ry o ff en ce ) S o m e st o re s w il l p ro se cu te th em se lv es ; th ey h av e th ei r o w n sa n ct io n . A lt er n at iv el y, ca se is re p o rt ed to p o li ce w h o w il l in it ia te an in v es ti g at io n . C o u rt p ro ce ss is p o ss ib le . F ix ed fi n e b y sh o p o w n er o r co u rt sa n ct io n (s h o rt p ri so n se n te n ce ). F L es s se ri o u s cr im in al o ff en ce (D él it ) In v es ti g at io n w il l b e ca rr ie d o u t b y p o li ce u n d er P P S ′ in st ru ct io n s. A lt er n at iv e p ro ce ed in g s p o ss ib le as : C o m p o si ti o n p en a le o r m a in h ea ri n g b ef o re tr ib u n a l co rr ec ti o n n el . S h o rt p ri so n se n te n ce li k el y, w it h th e o rd er o f su sp en si o n an d p ro b at io n . H A d m in is tr at iv e o ff en ce . A d m in is tr at iv e p ro ce d u re . A d m in is tr at iv e sa n ct io n , m o st li k el y fi n e. H R C ri m in al o ff en ce (l es s se ri o u s) A cc el er at ed (s im p li fi ed ) cr im in al p ro ce ed in g s (p o li ce h an d o v er th e ca se to P P S , P P S m ay b ri n g ch ar g es w it h o u t in st it u ti n g in v es ti g at io n s, P P S m ay u se co n d it io n al d is p o sa l, o n th e re q u es t o f P P S C o u rt m ay is su e p en al o rd er ) F in e u p to 1 5 0 d ai ly in co m es o r im p ri so n m en t u p to 6 m o n th s. N L L es s se ri o u s cr im in al o ff en ce (M is d ri vj en ) P o li ce w il l th en in it ia te in v es ti g at io n an d d ec id e in h o w fa r a (p o li ce -) tr an sa ct io n is ap p ro p ri at e (i .e . n o re ci d iv is m w it h in 5 y ea rs ). O th er w is e w ri t o f su m m o n s is is su ed an d h an d ed o v er to P P S . (P o li ce -) tr an sa ct io n o r P P S b ri n g s ch ar g es . P L M in o r cr im in al o ff en ce (W yk ro cz en ia ) In v es ti g at io n is ca rr ie d o u t b y p o li ce in d ep en d en tl y. C as e is th en b ro u g h t to m ag . co u rt b y p o li ce . M o st li k el y co u rt m ay o rd er an ar re st (5 – 3 0 d ay s) . A ls o fi n e is p o ss ib le . S L es s se ri o u s cr im in al o ff en ce P o li ce le ad th e w h o le in v es ti g at io n . T h en ca se is h an d ed o v er to P P S th at w il l p ro b ab ly is su e a p en al o rd er . If su sp ec t d o es n ’t ag re e: ca se w il l g o to co u rt . M o st li k el y sa n ct io n w il l b e m o re se v er e th an in ca se o f a 1 st -t im e o ff en d er . T R C ri m e In p ra ct ic e p o li ce in v es ti g at e in d ep en d en tl y, b ri n g th e ca se th en to P P S . P re p ay m en t an d m ed ia ti o n ar e n o t p o ss ib le . F in e/ co m .s er v ic e p o st p o n in g o f p u n is h m en t is n o t p o ss ib le b ec au se o f p er si st en ce C o n si d er ed as a fa lt a, b u t it b ec o m es tr ea te d as a le ss se ri o u s o ff en ce if , w it h in o n e y ea r, th e ad u lt h as d o n e it 4 ti m es . 128 B. Elsner et al. C a se 3 T w o ad u lt s (A & B ) w h o ar e st ra n g er s to th at d at e, b ec o m e in v o lv ed in an ar g u m en t in a p u b . A h it s B w it h a g la ss b o tt le ca u si n g a w o u n d to B ′s fa ce . T h is re q u ir es st it ch in g in a h o sp it al . B is u n ab le to w o rk fo r 3 d ay s T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H L es s se ri o u s cr im in al o ff en ce (V er g eh en ) P P S in v es ti g at es . C as e w il l b e b ro u g h t b ef o re co u rt . N o si m p li fi ed p ro ce d u re . P ri so n se n te n ce D L es s se ri o u s cr im in al o ff en ce (V er g eh en ) P o li ce in v es ti g at e in d ep en d en tl y. P P S th en d ec id es h o w to p ro ce ed . If al te rn at iv e p ro ce ed in g s p o ss ib le d ep en d s o n th e co n te n t o f th e d if f. L än d er g u id el in es . F u ll co u rt tr ia l is m o st li k el y. A lt er n at iv e p ro c. se em u n li k el y. E L es s se ri o u s cr im in al o ff en ce (d el it o ) P o li ce w il l in v es ti g at e an d re p o rt to E M an d P P S , as w el l as th e o th er p ar ts im p li ed in th e p ro ce ss . E M d ec id es in st ru ct io n is te rm in at ed , th er ef o re . P P S w ri te s th e fo rm al in d ic tm en t, an d th e d ef en ce p re se n ts th e w ri tt en re p o rt (1 0 d ay s fo r ea ch o th er ). T h en th ey p ro ce ed to tr ia l (A b re v ia d o ). P le a b ar g ai n in g is al so p o ss ib le . P ri so n fr o m 6 m o n th s u p to 3 y ea rs (s u sp en d ab le if it ’s im p o se d u n d er 2 y ea rs ) E W L es s se ri o u s cr im in al o ff en ce (S u m m a ry o ff en ce ) In v es ti g at io n b y p o li ce . A ca u ti o n m ig h t st il l b e p o ss ib le . A lt er n at iv el y ca se is in v es ti g at ed b y p o li ce th en b ro u g h t b ef o re co u rt . S h o rt p ri so n -s en te n ce p o ss ib le ac co m p an ie d b y v ic ti m 's co m p en sa ti o n . F L es s se ri o u s cr im in al o ff en ce (a g g ra v at in g ci rc u m st an ce s) (D él it ) In v es ti g at io n w il l b e ca rr ie d o u t b y p o li ce u n d er P P S ′ in st ru ct io n s. A lt er n at iv e p ro ce ed in g s p o ss ib le as : D is p o sa l; C o m p o si ti o n p en a le . M o st li ke ly m a in h ea ri n g b ef o re tr ib u n a l co rr ec ti o n n el . S h o rt p ri so n -s en te n ce , p ri m ar il y ac co m p an ie d b y v ic ti m 's co m p en sa ti o n . H L es s se ri o u s cr im in al o ff en ce . In v es ti g at io n b y th e p o li ce . A lt er n at iv e, si m p li fi ed p ro ce d u re s ar e p o ss ib le (a rr ai g n m en t, p en al o rd er ). L o ca l co u rt w il l d ea l w it h th e ca se . S h o rt p ri so n se n te n ce an d la b o u r in th e p u b li c in te re st ar e p o ss ib le , b u t p ro b at io n o r fi n e se em s to b e th e m o st ap p ro p ri at e sa n ct io n . H R C ri m in al o ff en ce (l es s se ri o u s) A cc el er at ed (s im p li fi ed ) cr im in al p ro ce ed in g s (p o li ce h an d o v er th e ca se to P P S , P P S m ay b ri n g ch ar g es w it h o u t in st it u ti n g in v es ti g at io n s; P P S m ay u se co n d it io n al d is p o sa l; E M m ay re n d er th e ju d g m en t at th e re q u es t o f th e p ar ti es ; o n th e re q u es t o f P P S C o u rt m ay is su e p en al o rd er ) F in e o r im p ri so n m en t o f u p to o n e y ea r. (( M o st p ro b ab ly ca se w il l b e d is p o se d o ff o r p en al o rd er w il l b e is su ed .) N L L es s se ri o u s cr im in al o ff en ce (M is d ri jv en ) P o li ce w il l ca rr y o u t in v es ti g at io n u n d er P P S ′ in st ru ct io n s. O u t o f co u rt p ro ce ed in g s p o ss ib le (d ep en d s o n th e co n se q u en ce s o f th e o ff en ce an d o ff en d er p er so n al it y ). T ra n sa ct io n m o st p ro b ab le (c o m m u n it y se rv ic e) . P L L es s se ri o u s cr im in al o ff en ce P o li ce w il l in it ia te in v es ti g at io n . If p u b li c in te re st ex is ts , p ro se cu ti o n p ro ce ed s. If n o t: p ri v at e co m p la in t p ro ce d u re p o ss ib le . P u b li c tr ia l: co u rt sa n ct io n , p ri m ar il y in fo rm o f v ic ti m 's co m p en sa ti o n . P ri v at e p ro s. : re co n ci li at io n . P en al ty p o ss ib le : fi n e (m o st p ro b ab ly ), co m m u n it y se rv ic e an d (l es s li k el y ) im p ri so n m en t u p to 2 y ea rs . S L es s se ri o u s cr im in al o ff en ce P o li ce le ad th e w h o le in v es ti g at io n . T h en ca se is h an d ed o v er to P P S w h o w il l b ri n g th e ca se b ef o re co u rt . M o st li k el y co n d it io n al se n te n ce co m b in ed w it h fi n es o r co m . se rv ic e o r p ro b at io n . T R C ri m e P o li ce w il l ca rr y o u t in v es ti g at io n u n d er P P S ′ in st ru ct io n s. T h en ca se is h an d ed o v er to P P S w h o w il l b ri n g th e ca se b ef o re co u rt . P re p ay m en t is n o t p o ss ib le . M ed ia ti o n is p o ss ib le . M ed ia ti o n /F in e o r co m . se rv ic e/ P o st p o n in g o f p u n is h m en t The criminal justice approach: case examples 129 C a se 3 . v a r. a B o d il y h ar m – T w o ju v en il es w h o ar e st ra n g er s to th at d at e b ec o m e in v o lv ed in an ar g u m en t in a p u b . A h it s B w it h a g la ss b o tt le ca u si n g a w o u n d to B ′s fa ce th at re q u ir es st it ch in g in a h o sp it al . B is u n ab le to w o rk fo r 3 d ay s T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H L es s se ri o u s cr im in al o ff en ce (V er g eh en ) In v es ti g at io n th ro u g h th e P P S fo r ju v en il es If n o m ea su re is ap p li ca te d F in e, p ri so n ti ll o n e y ea r o r co m m u n it y se rv ic e w o rk (A rb ei ts le is tu n g ) D L es s se ri o u s cr im in al o ff en ce (V er g eh en ) In v es ti g at io n b y p o li ce m o re o r le ss in d ep en d en tl y. D iv er si o n ar y m ea su re is m o st li k el y (§ 4 5 II JG G ), p er p et ra to r- v ic ti m - m ed ia ti o n is p ar ti cu la rl y li k el y h er e. A lt er n at iv e p ro ce ed in g s m o st p ro b ab le if o ff en d er s p er so n al it y is w it h in th e ra n g e (s im p li fi ed p ro ce ed in g , § 7 6 JG G / d iv er si o n , § 4 5 JG G ). E L es s se ri o u s cr im in al o ff en ce (d el it o ) In v es ti g at io n b y P o li ce , d ir ec te d b y P P S . A m ed ia ti o n w il l ta k e p la ce w h en ev er b o th ju v en il es ag re e to it . In ca se it ’s n o t su cc es sf u l o r th ey d o n ’t w an t to p ar ti ci p at e, w e u se th e ju v en il e p ro ce ed in g in ju v en il e co u rt s: a 1 st st ag e fo r tr y in g to re ac h a p le a b ar g ai n ed se n te n ce ; a 2 n d st ag e w it h a tr ia l In ca se m ed ia ti o n is su cc es sf u l, th e ca se is fi le d . If n o t, a m ea su re is ap p li ed (s p ec ia l co u rs es , w o rk fo r th e co m m u n it y. .) . E W L es s se ri o u s cr im in al o ff en ce (S u m m a ry o ff en ce ) W h o le cr im in al p ro ce d u re is th e sa m e as fo r ad u lt s: C o u rt is ab le to at te m p t so m e re st o ra ti v e ju st ic e p ro ce d u re . In fo rm al re ac ti o n th ro u g h a re p ar at io n p ro ce ss (y o u th o ff en d in g p an el o r b y co u rt ). S p ec ia l tr ea tm en t (d ru g /a n g er /a lc o h o l m an ag em en t co u rs es ) o r m ed ia ti o n . F L es s se ri o u s cr im in al o ff en ce (a g g ra v at in g ci rc u m st an ce s) (D él it ) In v es ti g at io n b y p o li ce an d P P S . S u m m o n in g b ef o re th e Ju v en il e C o u rt . Ju d g e d ec id es ab o u t ed u . m o n it o ri n g . C o u rt h ea ri n g co n ce iv ab le , if o ff en d er h as al re ad y b ee n in co n ta ct w it h cr im in al sy st em . 1 st -t im e o ff en d er : ed u . M ea su re s. R ec id iv is t: se n te n ce M u lt i- re ci d iv is t: 2 -m o n th p re -t ri al d et en ti o n /s h o rt , u n su sp en d ed p ri so n se n te n ce . H L es s se ri o u s cr im in al o ff en ce . In v es ti g at io n b y th e p o li ce , C as e w il l b e b ro u g h t b ef o re th e co u rt . A lt er n at iv el y, si m p li fi ed p ro ce d u re s ar e p o ss ib le . P ri so n se n te n ce is p o ss ib le in th eo ry b u t m o st li k el y p ro b at io n w il l b e ap p li ed . (F in e an d ed u ca ti o n in re fo rm at o ry in st it u ti o n ar e p o ss ib le as w el l. ) H R C ri m in al o ff en ce (l es s se ri o u s) In v es ti g at io n b y th e P P S fo r ju v en il es . M o st p ro b ab ly w il l b e d ec id ed o n th e b as es o f th e p ri n ci p le o f o p p o rt u n it y. O n ly ed u ca ti o n al m ea su re s m ay b e im p o se d . C as e m ay al so b e d ro p p ed (p u b li c in te re st ) o r d is p o se d o ff (w it h co n d it io n ). P er p et ra to r- v ic ti m - m ed ia ti o n is p o ss ib le h er e. N L L es s se ri o u s cr im in al o ff en ce (M is d ri jv en ) In v es ti g at io n b y p o li ce u n d er P P S in st ru ct io n s S en te n ce o f 2 4 h o u rs co m m u n it y se rv ic e. W ri t o f su m m o n s fo r a co u rt h ea ri n g . P L P u n is h ab le ac t In v es ti g at io n b y p o li ce . C as e b ro u g h t to fa m il y co u rt w h ic h w il l in v es ti g at e o ff en d er 's so ci al su rr o u n d in g s an d p er so n al it y. 1 st -t im e o ff en d er : ad m o n it io n b y co u rt . R ec id iv is t: ed u . m ea su re b y co u rt ; Ju v en il e d el in q u en t ce n tr e fo r h ig h ly p ro b le m at ic ju v en il es . S L es s se ri o u s cr im in al o ff en ce P ro ce ed in g s ar e th e sa m e as in ca se o f an ad u lt p er p et ra to r, al th o u g h le ad er o f in v es ti g at io n w il l b e a P P. N o p ri so n -s en te n ce . C o m m it ta l to so ci al ca re an d /o r co m m u n it y se rv ic e fo r ju v en il es p o ss ib le , d ep en d in g o n so ci al si tu at io n o f th e p er p et ra to r. P er p et ra to rs ′ p er so n al it y m o re in fo cu s. P ro se cu ti o n b ef o re a co u rt w il l b e in st it u te d . T R C ri m e In v es ti g at io n b y P P S . C as e b ro u g h t to ch il d re n co u rt . p er p et ra to r- v ic ti m -m ed ia ti o n is p o ss ib le . C o n d it io n al se n te n ce is a m u st . B E W A E H R U N G M Ö G L IC H 130 B. Elsner et al. C a se 4 T w o p er so n s ar e ca u g h t ra m -r ai d in g (b re ak in g in to a sh o p b y d ri v in g a v eh ic le th ro u g h th e sh o p w in d o w in o rd er to st ea l as m u ch as p o ss ib le ) a cl o th in g st o re . W h en th ei r h o u se s ar e se ar ch ed , ev id en ce is fo u n d th at th ey ar e m em b er s o f a g an g w h ic h re g u la rl y ra m -r ai d s sh o p s in v ar io u s ci ty ce n tr es T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H S er io u s cr im in al o ff en ce (V er b re ch en ) P P S le ad s th e in v es ti g at io n . C as e w il l b e b ro u g h t b ef o re co u rt . N o si m p li fi ed p ro ce d u re . P ri so n se n te n ce b et w ee n 6 m o n th s an d 1 0 y ea rs . D S er io u s cr im in al o ff en ce (V er b re ch en ) P P S le ad s th e in v es ti g at io n fr o m th e v er y b eg in n in g ; C as e w il l b e b ro u g h t b ef o re co u rt . N o si m p li fi ed p ro ce d u re . C u st o d ia l se n te n ce b et w ee n 1 an d 1 0 y ea rs . E S er io u s cr im in al o ff en ce (d el it o ) P o li ce w il l in v es ti g at e an d re p o rt to E M an d P P S , as w el l as th e o th er p ar ts im p li ed in th e p ro ce ss . E M w il l h an d th e fi le to th e T ri b u n al w h o w il l ju d g e th em , fo r re v ie w in g th e in st ru ct io n . T h en th e P P S w ri te s th e fo rm al in d ic tm en t an d th e d ef en ce p re se n ts th e w ri tt en re p o rt (1 0 d ay s fo r ea ch p ar ty ). T h en th ey p ro ce ed to tr ia l (S u m ar io ). P ri so n se n te n ce o f se v er al y ea rs (8 to 1 4 ), im p o ss ib le to su sp en d o r su b st it u te fo r an o th er p en al ty . E W S er io u s (i n d ic ta b le ) o ff en ce C P S an d P o li ce w o rk to g et h er o n in v es ti g at io n S u b je ct to a (s ev er e) p ri so n se n te n ce o f se v er al y ea rs . B ro u g h t b ef o re cr o w n co u rt af te r in it ia l h ea ri n g b ef o re m ag . co u rt . N o si m p li fi ed p ro ce d u re . F S er io u s cr im in al o ff en ce (a g g ra v at in g ci rc u m st an ce s) (C ri m e) S u m m ar y tr ia l if P P S af te r n at io n w id e in v es ti g at io n (P o li ce u n d er P P S ′ ad v ic e) is su re th at o n ly th e tw o o ff en d er s ar e in v o lv ed an d n o t o th er m em b er s o f a g an g . O ff en ce p u n is h ab le b y u p to 1 0 y ea rs o f im p ri so n m en t. C o n si d er at io n s o f an o rg an iz ed g an g w o u ld le ad to a p ri so n se n te n ce n o t ex ce ed in g 1 5 y ea rs . H S er io u s cr im in al o ff en ce . P o li ce w il l in v es ti g at e. C as e w il l b e b ro u g h t b ef o re th e co u rt (l o ca l co u rt ). S im p li fi ed p ro ce d u re s ar e n o t ex cl u d ed b u t u n li k el y. P u n is h ab le b y im p ri so n m en t. (L en g th d ep en d s o n th e v al u e o f st o le n g o o d s. ) H R C ri m in al o ff en ce In v es ti g at io n is le d b y E M . P P S b ri n g s ch ar g es b ef o re th e co u rt (1 p ro fe ss io n al ju d g e an d 2 la y ju d g es ). P u n is h ab le b y im p ri so n m en t (f ro m 6 m o n th s to 5 y ea rs ) N L S er io u s cr im in al o ff en ce (M is d ri jv en ) In v es ti g at io n h ea d ed b y P P S . C h ar g e b ro u g h t b ef o re co u rt , m ai n h ea ri n g p ro b ab le . N o si m p li fi ed p ro ce d u re . M ax . 6 y ea rs p ri so n se n te n ce . If d am ag e ca u se d / re p ea t o ff en d in g th e m o st p ro b ab le se n te n ce w il l b e ei th er 2 1 0 h o u rs co m m u n it y se rv ic e/ 1 0 5 d ay s im p ri so n m en t m in im u m . P L S er io u s cr im in al o ff en ce In v es ti g at io n b y p o li ce . C as e is p ro b ab ly b ro u g h t to co u rt . 1 – 1 5 y ea rs o f im p ri so n m en t o r ev en a fi n e p o ss ib le . S S er io u s cr im in al o ff en ce L ea d er an d co n d u ct o r o f in v es ti g at io n is P P S , m ay b e p o li ce . C as e is b ro u g h t b ef o re co u rt . O n ly p ri so n se n te n ce o f m ax . 6 y ea rs (m o st li k el y ap p ro x . 1 y ea r) w il l b e a p o ss ib le re ac ti o n . If o ff en d er s ar e m em b er s o f a g an g , th is m ig h t le ad to ag g ra v at in g ci rc u m st an ce re le v an t fo r se n te n ci n g . T R C ri m e In v es ti g at io n b y p o li ce . P P S b ri n g s th e ca se to co u rt . N o p re p ay m en t/ m ed ia ti o n . M ax . 6 y ea rs p ri so n se n te n ce . P o st p o n in g o f p u n is h m en t is p o ss ib le w h en fi rs t ti m e o ff en d er . The criminal justice approach: case examples 131 C a se 5 M u rd er - A b re ak s in to B `s h o m e in o rd er to ta k e re v en g e fo r B `s af fa ir w it h A `s w if e. A k il ls B th ro u g h a b lo w to th e h ea d . H e fe ig n s a b u rg la ry in o rd er to co v er h is tr ac k s T y p e o f o ff en ce T y p e o f p ro ce d u re T y p e o f re ac ti o n C H S er io u s cr im in al o ff en ce (V er b re ch en ) P P S le ad s th e in v es ti g at io n . C as e w il l b e b ro u g h t b ef o re co u rt . N o al te rn at iv e p ro ce ed in g s. S u b je ct to a m an d at o ry li fe p ri so n -s en te n ce (m in im u m 1 0 y ea rs ). D S er io u s cr im in al o ff en ce (V er b re ch en ) P P S le ad s th e in v es ti g at io n fr o m th e v er y b eg in n in g ; C as e w il l b e b ro u g h t b ef o re co u rt . N o al te rn at iv e p ro ce ed in g s. S u b je ct to a m an d at o ry li fe p ri so n -s en te n ce (m in im u m 1 5 y ea rs ). E S er io u s cr im in al o ff en ce (d el it o ) P ol ic e w il l in ve st ig at e an d re po rt to E M an d P P S , as w el l as to th e o th er p ar ts im pl ie d in th e pr oc es s. C as e br ou gh t b ef or e a ju ry , af te r th e P P S w ri te s th e fo rm al in di ct m en t, an d th e d ef en ce pr es en ts th e w ri tt en re po rt . P ri so n se n te n ce fr o m 1 5 to 2 0 y ea rs , n o t su sp en d ab le . E W S er io u s cr im in al o ff en ce C P S an d p o li ce w o rk to g et h er o n in v es ti g at io n . C as e b ro u g h t b ef o re co u rt , co n si st in g o f a ju ry an d ju d g e (w h o h as n o ro le in se n te n ci n g b u t h as to se t a m in im u m se n te n ce le n g th ). S u b je ct to a m an d at o ry li fe p ri so n -s en te n ce (m in . 1 5 /2 0 y ea rs ). F S er io u s cr im in al o ff en ce (a g g ra v at in g ci rc u m st an ce s) (C ri m e) In v es ti g at io n b y P P S . C o u rt h ea ri n g (j u d g e an d a ju ry o f 9 m em b er s) . S u b je ct to a m an d at o ry li fe se n te n ce o r 3 0 y ea rs o f im p ri so n m en t; se cu ri ty p er io d m u st b e se t in ca se o f m u rd er (e n su re s th at th e se n te n ce ca n ’t b e su sp en d ed w it h in a ce rt ai n p er io d ). H S er io u s cr im in al o ff en ce In v es ti g at io n b y p o li ce o r b y P P S . C as e w il l b e b ro u g h t b ef o re th e co u n ty co u rt , (p an el o f o n e ju d g e an d tw o la y ju d g es ). N o al te rn at iv e p ro ce ed in g is av ai la b le . P sy ch ia tr ic ex p er t h as to b e in v o lv ed . S u b je ct to a m an d at o ry li fe im p ri so n m en t o r m ax . 1 5 y ea rs o f im p ri so n m en t. H R S er io u s cr im in al o ff en ce (a g g ra v at in g ci rc u m st an ce s) In v es ti g at io n is le d b y E M . P P S b ri n g s ch ar g es b ef o re th e co u rt (2 p ro fe ss io n al ju d g es an d 3 la y ju d g es ). N o al te rn at iv e p ro ce ed in g s. S u b je ct to lo n g -t er m im p ri so n m en t (m in im u m 8 y ea rs ). N L S er io u s cr im in al o ff en ce (M is d ri jv en ) N o rm al in v es ti g at io n h ea d ed b y P P S . C h ar g e b ro u g h t b ef o re co u rt (m ai n h ea ri n g ). S u b je ct to a lo n g li fe se n te n ce . M an d at o ry li fe p ri so n -s en te n ce is p o ss ib le , b u t m o st li k el y th is w il l o n ly b e g iv en fo r m u rd er s w it h m o re th an o n e v ic ti m . P L S er io u s cr im in al o ff en ce P P S is le ad er o f th e in v es ti g at io n . N o rm al co u rt h ea ri n g w it h p sy ch ia tr ic ex am in at io n . L o n g p ri so n se n te n ce 8 – 2 5 y ea rs , u p to li fe . S S er io u s cr im in al o ff en ce L ea d er o f in v es ti g at io n is P P S . C as e w il l b e b ro u g h t b ef o re co u rt (n o rm al co u rt h ea ri n g ). Im p ri so n m en t o f 1 0 y ea rs o r fo r li fe . T R C ri m e P P S in v es ti g at es fr o m th e v er y b eg in n in g o n . N o p re p ay m en t/ m ed ia ti o n L o n g li fe se n te n ce . If fi rs t ti m e o ff en d er im p ri so n m en t o f 2 5 y ea rs is p o ss ib le . 132 B. Elsner et al. The Criminal Justice Approach: Case Examples Abstract << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (None) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (ISO Coated v2 300% \050ECI\051) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Perceptual /DetectBlends true /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 524288 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveEPSInfo true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts false /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 150 /ColorImageDepth -1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /ColorImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 150 /GrayImageDepth -1 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.76 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 600 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org?) /PDFXTrapped /False /SyntheticBoldness 1.000000 /Description << /ENU <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> /DEU <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> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [5952.756 8418.897] >> setpagedevice 
work_wgugv7mxsjfg7gbaphb6rrdrui	----	\\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 1 3-JUL-12 14:46 KAREN J. ALTER,* LAURENCE R. HELFER** & OSVALDO SALDÍAS*** Transplanting the European Court of Justice: The Experience of the Andean Tribunal of Justice† Although there is an extensive literature on domestic legal trans- plants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of nearly a dozen copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first re- views the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the in- tersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean Pact’s member states decided to add a court to their regional integration ini- tiative, why they adapted the European Community model, and how the ECJ’s existence has shaped the evolution of Andean legal doctrine and the political space within which the ATJ operates. We conclude by analyzing how the ATJ’s experience informs the study of suprana- tional transplants and theories of supranational legal integration more generally. In the 1950s, in the wake of a devastating world war, European countries began a process of pooling sovereignty to collectively re- build their security and economies. This process—which involved the creation of supranational institutions to promote economic, legal and political integration—soon attracted new adherents. Beginning in the 1960s, other governments around the world emulated Europe’s model of regional integration, proposing common markets and copying the institutions of the European Community (EC). From its inception, the EC included a court of justice, but early replications of European integration did not.1 Although these re- * Professor of Political Science and Law, Northwestern University. ** Harry R. Chadwick, Sr. Professor of Law, Duke University. *** Senior Research Fellow, Humboldt University of Berlin. † DOI http://dx.doi.org/10.5131/AJCL.2011.0030 1. See infra note 14. The Benelux system is a partial exception. Belgium, the Netherlands and Luxembourg created a customs union in 1947, without a court. When all three countries joined the EC, they continued their union to coordinate regu- lations in areas not covered by the EC. In 1965 member states adopted the treaty 629 \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 2 3-JUL-12 14:46 630 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 gional integration projects did not live up to the aspirations of their proponents, few attributed their failure to the lack of supranational judicial bodies. Rather, scholars stressed the absence of economic and political preconditions required for regional integration to succeed.2 The inattention given to supranational judicial systems in the 1960s and early 1970s reflected the limited role that the European Court of Justice (ECJ) played in advancing European integration. The ECJ made doctrinally important rulings during these years,3 but it refrained from applying those rulings in ways that provoked con- troversy. As a result, ECJ case law was of greater doctrinal than political significance.4 Politicians, practitioners, and scholars began to pay more atten- tion to the ECJ in the late 1970s, when the court began to dismantle national barriers to the free movement of goods, capital, labor, and services. These actors came to view the ECJ as an engine to help overcome political blockages and build integration through law.5 Ob- servers also credited the ECJ’s alliance with national courts with increasing member states’ respect for EC rules and with coordinating interpretations of common EC rules across borders.6 When critics be- gan to question the EC’s political accountability and democratic legitimacy, proponents of integration responded by citing the ECJ’s key role in upholding the rule of law. The court ensured that Europe’s supranational administrative institutions faced legal checks, just as did domestic administrative actors.7 And the court’s review of the va- lidity of EC legislation further bolstered the accountability of establishing a Benelux Court of Justice, although the court was not created until 1975. Today, the court is an adjunct to the ECJ. It reviews Benelux rules in areas not regulated by the EC. 2. For an analysis of the problems of early integration efforts, see Joseph S. Nye, Comparing Common Markets: A Revised Neofunctionalist Model, 24 INTERNATIONAL ORGANIZATION 796 (1971); WALTER MATTLI, THE LOGIC OF REGIONAL INTEGRATION (1999); Philippe Schmitter, A Revised Theory of European Integration, 24 INTERNA- TIONAL ORGANIZATION 836 (1970). 3. Eric Stein, Lawyers, Judges and the Making of a Transnational Constitution, 75 AM. J. INT’L L. 1(1981). Joseph Weiler considers the 1960s and 1970s to be a “foun- dational period” during which the ECJ transformed the Treaty of Rome into a constitution and closed state “exit” from EC law. Joseph Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2424-31 (1991). 4. Karen J. Alter, Who Are the Masters of the Treaty?: European Governments and the European Court of Justice, 52 INTERNATIONAL ORGANIZATION 125, 130-32 (1998). 5. Weiler, supra note 3; ALEC STONE SWEET, THE JUDICIAL CONSTRUCTION OF EU- R ROPE (2004); RACHEL CICHOWSKI, THE EUROPEAN COURT AND CIVIL SOCIETY: LITIGATION, MOBILIZATION AND GOVERNANCE (2007); MIGUEL POIARES MADURO, WE THE COURT: THE EUROPEAN COURT OF JUSTICE AND THE EUROPEAN ECONOMIC CONSTI- TUTION: A CRITICAL READING OF ARTICLE 30 OF THE EC TREATY (1998). 6. See Weiler, supra note 3, at 2412-31; see also Alter, supra note 4. R 7. KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAK- ING OF AN INTERNATIONAL RULE OF LAW IN EUROPE 87-117 (2001). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 3 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 631 European institutions, even if some claimed that the ECJ was biased in favor of community over state interests.8 The ECJ’s increasingly important role in promoting European in- tegration eventually led other regional integration systems to establish their own supranational courts. The Andean Pact (later renamed the Andean Community) was one of the first such systems to create a court.9 In 1969, five countries on the western edge of South America10 imported from Europe the idea of building a re- gional common market. The Andean Pact adopted community legislation that was directly applicable within member states, but it lacked a judicial body to interpret or help enforce those rules. By the late 1970s, member governments began to draft a treaty to create a supranational court. In 1984 they created the Andean Tribunal of Justice (ATJ or the Tribunal), explicitly modeling its design on the ECJ. Initially the Tribunal received few cases. Over time, however, its docket has grown to the point that the ATJ is the third most active international court today (after the ECJ and the European Court of Human Rights).11 In the 1990s, the end of the Cold War, the rise of the Washington Consensus,12 and the creation of the World Trade Organization spawned a new wave of regional integration. This wave incorporated supranational judicial institutions that had proven so important to 8. Trevor Hartley, The European Court, Judicial Objectivity and the Constitu- tion of the European Union, 112 LAW QUARTERLY REV. 95 (1996). 9. See infra note 14. 10. The composition of the Andean integration project has shifted over time. The five founding members of the Andean Pact in 1969 were Bolivia, Chile, Colombia, Ecuador, and Peru. Venezuela joined the group as a sixth member in 1973. Chile withdrew in 1976 after the coup by Augusto Pinochet. In 2006, Venezuela withdrew from the Andean Community and Chile rejoined the group as an associate member. 11. The number of legally binding decisions in contentious cases issued by inter- national courts through 2011 include: ECJ (18,511), European Court of Human Rights (14,940), ATJ (2,197), GATT/WTO (401, including GATT and WTO panel rul- ings and Appellate Body decisions); Organization for the Harmonization of African Law (569); and Inter-American Court of Human Rights (238). See KAREN J. ALTER, THE NEW TERRAIN OF INTERNATIONAL LAW COURTS, POLITICS, RIGHTS (forthcoming 2013). For earlier statistics, see Karen J. Alter, The New International Courts: A Bird’s Eye View, (2010), available at http://www.cics.northwestern.edu/publications/ workingpapers/buffett.html. In comparison, a recent review of the ICJ’s docket using a more expansive measure finds that “the ICJ has heard 124 contentious cases and has considered [26] requests for advisory opinions.” This source also notes, however, that “these figures likely overstate the number of true cases . . . by approximately 15 percent” due to “multiple filings in single disputes and . . . filings that were not ac- cepted.” Gary Born, A New Generation of International Adjudication, 61 DUKE L.J. 775, 805 & n.105 (2012). 12. The “Washington Consensus” was the term coined by John Williamson to en- compass a package of reforms advocated by a set of Washington based institutions (e.g., the U.S. Treasury and the International Monetary Fund). Originally the term applied to a specific set of policies, but now it is used to denote the neoliberal economic reform agenda of pro-market economists and policy-makers. See John Williamson, What Washington Means by Policy Reform, in LATIN AMERICAN ADJUSTMENT: HOW MUCH HAS HAPPENED (John Williamson ed., 1990). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 4 3-JUL-12 14:46 632 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 advancing integration in Europe.13 There are now ten operational copies of the ECJ, each of which replicates two key features that com- mentators agree have been critical to the ECJ’s success: a noncompliance procedure that authorizes the secretariat, member states, and sometimes private litigants to challenge national policies that conflict with community rules; and a preliminary reference mechanism that allows, and sometimes requires, national courts to suspend legal proceedings and send questions of interpretation of community law to the supranational court.14 Transplanting European laws and legal institutions to other areas around the world is hardly a new phenomenon. Many legal sys- tems incorporate transplants from France, Britain, Germany, Spain, and the Scandinavian countries.15 This paper explores a different and understudied issue—the consequences of copying a European su- pranational judicial institution. Specifically, we ask two related questions: how did the existence of the ECJ influence the founding of the ATJ, and how, if at all, has the ECJ’s experience—its doctrinal innovations and the responses of litigants and governments to water- shed rulings—shaped the ATJ’s trajectory? Section I summarizes and synthesizes the literature on legal transplants, regional integration, and the diffusion of ideas to provide a framework to examine how transplanting supranational judicial in- stitutions shapes the trajectory of the transplanted copies. Section II explains why Andean Community member states decided to emulate the ECJ, and it investigates adaptations that Andean leaders made as they considered the ECJ’s track record. Section III builds upon a previous study of ATJ preliminary rulings to develop insights about how the ECJ’s experience did and did not influence the development of Andean legal doctrine and the political space within which the ATJ 13. Cesare Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. INT’L L. & POL. 709 (1999); Karen J. Alter, The Evolving International Judiciary, 7 ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE 387 (2011). 14. Ten international courts copy both design features from the ECJ, albeit with some variations: the Benelux Court, the Andean Tribunal of Justice, the European Free Trade Area Court, the West African Economic and Monetary Union Court, the Common Market for East African States Court, the Central African Monetary Com- munity Court, the East African Community Court, the Caribbean Court of Justice, the Court of Justice of the Community of West African States, and the Southern Afri- can Development Community Court. The Common Court of Justice and Arbitration of the Organization for the Harmonization of African law and the Central American Court of Justice have preliminary ruling mechanisms. There are proposals to restruc- ture the Caribbean Court of Justice and the Economic Court of the Commonwealth of Independent States into ECJ-style international courts. And the proposed but not yet created Court of the African Mahgreb is modeled on the ECJ. For additional informa- tion, see Karen J. Alter, The Global Spread of European Style International Courts, 35 WEST EUROPEAN POLITICS 135 (2012). 15. See, e.g., Daniel Berkowitz et al., The Transplant Effect, 51 AM. J. COMP. L. 163, 163-67 (2003); WADE JACOBY, IMITATION AND POLITICS: REDESIGNING MODERN GERMANY (2000). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 5 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 633 operates. Section IV investigates what the ATJ’s experience tells us about supranational courts and regional integration efforts more generally. Our analysis reveals several key findings: First, that mimicry is the principal mode through which the ECJ model is diffused. Second, that copying the ECJ is selective rather than wholesale, which sug- gests that adapting a court to local legal and political contexts may be necessary for successful transplantation. Third, that copying brings many benefits in the form of expertise and material assistance from exporting countries. Fourth, that importing a supranational judicial institution does not necessarily copy the institution’s politics. Specifi- cally, we find that states can import an ECJ-style court without replicating its penchant for judicial activism. I. TRANSPLANTING, EMULATING, APPROPRIATING: THE DIFFUSION OF SUPRANATIONAL LEGAL INSTITUTIONS How do institutions diffuse around the world? When do borrowed institutions thrive in new contexts? These questions have long inter- ested practitioners and scholars.16 This section summarizes and synthesizes three distinct lines of scholarship that focus on the legal dimensions of the diffusion question—literatures on legal trans- plants, neofunctionalist theory, and the spread of European ideas and institutions—whose previously unexplored intersection helps to understand the ECJ’s influence on the design and operation of the ATJ. A. Insights from the Literature on Legal Transplants Legal transplants have a long lineage dating back at least as far as the Roman Empire. The concept of a “legal transplant” is primarily a metaphor.17 In medicine, transplants replace damaged body parts, with the hope that the body will be fooled into thinking the trans- plant is original. For legal transplants, in contrast, the foreign nature of the transplant is often precisely the attraction. Legal transplants are designed to emulate best practices or to import “foreignness” into a context where actors who favor importation have lost confidence in existing laws and institutions. 16. The literature is vast. According to one study, over 400 articles on policy diffu- sion were published between 1998 and 2008 in the discipline of political science alone. For stock taking on this literature, see ERIN GRAHAM ET AL., THE DIFFUSION OF POLICY DIFFUSION RESEARCH (2008); Wade Jacoby, Inspiration, Coalition and Substitution: External Influences on PostCommunist Transformations, 58 WORLD POLITICS 632 (2006). 17. David Nelken, Towards a Sociology of Legal Adaptation, in ADAPTING LEGAL CULTURES (Johannes Feest & David Nelken eds., 2001). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 6 3-JUL-12 14:46 634 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 Scholars who study transplants recognize that the transplant analogy is flawed in another way.18 Nearly all contemporary legal systems consist of some amalgam of indigenously generated laws, im- ported legal traditions, and laws and institutions that emulate global practices or practices in other countries. As a result, it is increasingly difficult to distinguish transplanted from homegrown laws and legal systems. Commentators are also troubled by the claim that transplanting foreign institutions improves local practices, an idea that tends to be associated with colonialism and imperialism. In the nineteenth cen- tury, European governments transplanted their institutions to help “civilize” the populations they colonized.19 Following World War II, the United States transplanted its own institutions around the world, including constitutional review, elections, and business associa- tions.20 The end of the Cold War ushered in a period of economic liberalism and a renewed enthusiasm for legal transplants by inter- national institutions.21 This latest penchant for exporting model laws and institutions was especially controversial to the extent that its proponents asserted the superiority of the Western industrial model of market regulation and the common law model of national legal systems.22 Notwithstanding persistent critiques, scholars and policymakers continue to explore when and how transplanting laws and legal insti- tutions changes the behavior and politics of the actors at the site of the transplant. Their studies suggest a number of conclusions. First, transplants are more likely to succeed when law is transplanted within the same legal family because, as Alan Watson explains, the success of a transplant will depend on its ability to graft onto existing legal norms and practices.23 Second, transplants not adapted to local contexts are unlikely to be effective. Daniel Berkowitz, Katharnia Pistor and Jean-Francois Richard argue that legal transplants succeed only where they re- spond to local demand and where they are adapted to local needs. In 18. Pierre Legrand, What “Legal Transplants?,” in ADAPTING LEGAL CULTURES, id. 19. Napoleon is said to have regarded his expanding Civil Code as the only accom- plishment that would outlive him. See EMMANUEL-AUGUSTE-DIEUDONNÉ COMTE DE LAS CASES, MÉMORIAL DE SAINTE HÉLÈNE: JOURNAL OF THE PRIVATE LIFE AND CONVER- SATIONS OF THE EMPEROR NAPOLEON AT SAINT HELENA (M.C. Carey, I. Lea, & A. Small. 1823). 20. JACOBY, supra note 15. R 21. Berkowitz et al., supra note 15, at 163-67. R 22. Rafael La Porta et al., Legal Determinants of External Finance, 52 THE JOUR- NAL OF FINANCE 20 (1997); Rafael La Porta et al., Law and Finance, 106 JOURNAL OF POLITICAL ECONOMY 1113 (1998). These studies suggested that common law systems generated better economic outcomes as compared to civil law systems. 23. Alan Watson, Legal Transplants and Law Reform, 92 LAW QUARTERLY REV. 79 (1976). Watson finds that transplants are more likely to be embraced by legal systems that share similar roots and traditions. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 7 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 635 the absence of these conditions, the authors observe a “transplant ef- fect”—a formal copying of rules that creates a “mismatch between preexisting conditions and institutions and the transplanted law, which weakens the effectiveness of the imported legal order.”24 Their key insight is that, in the absence of local demand and adaptation, transplanted legal rules and institutions that look the same on paper are often ignored in practice. Third, the act of creating and diffusing transplants may itself shape understandings of the transplant such that what is actually transplanted is not a true copy but instead reflects the normative preferences of transplant advocates. Original laws and institutions are revised through conversations about the rationales for and objec- tives of the transplant. As a result, imported legal rules are recast through selected invocations and stylized interpretations of the original.25 These insights apply to supranational transplants in distinctive ways. For example, the finding about legal families helps to explain why common market legal systems are especially likely to emulate the ECJ. Architects of these systems select from a menu of existing laws and institutions. For international economic law, there are two dominant models: the dispute resolution system of the General Agreement on Tariffs and Trade (GATT), later subsumed by the World Trade Organization (WTO), and the EC’s supranational judi- cial system. The WTO model relies on states to file complaints, which are re- viewed by ad hoc panels whose decisions can be appealed to a standing appellate body. The WTO also uses a system of reciprocal sanctions to enforce these decisions. Complaining states that prove violations of WTO obligations can raise tariffs on imports from violat- ing countries as a form of compensation and to induce their compliance. In contrast, the EC model has four distinctive features not found in the WTO system: 1. Directly applicable community legal rules. Supranational leg- islative bodies adopt legal rules that are directly applicable in domestic legal orders. 24. Berkowitz et al., supra note 15, at 171. Others have found that the same holds R regarding transplanted political institutions. See, e.g., JACOBY, supra note 15. R 25. Michele Graziadei, Legal Transplants and the Frontiers of Legal Knowledge, 10 THEORETICAL INQUIRIES IN LAW 723, 737 (2009). Frances Foster argues that conver- sations about transplants end up being informative for exporting as well as importing countries, since they serve as a “mirror” that the exporting state can hold up for self- scrutiny. Frances H. Foster, American Trust Law in a Chinese Mirror, 94 MINN. L. REV. 602, 621 (2010). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 8 3-JUL-12 14:46 636 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 2. A preliminary ruling mechanism. National judges can refer to the supranational court questions of interpretation regarding community rules. 3. Challenges to the validity of decisions and actions of suprana- tional institutions. Both private actors and states can challenge the validity of supranational legal rules, and private actors can challenge administrative decisions that directly af- fect them.26 4. Noncompliance procedures allow nonstate actors to challenge state actions that violate community rules. A supranational body is empowered to investigate allegations of noncompli- ance and file complaints with the supranational court. ECJ transplants need not copy all four of these design features. They can also selectively choose features from both the ECJ and WTO models.27 Most ECJ emulators in fact copy at least three of these features, albeit with some variations.28 As we explain below, the ATJ includes all four features, adds a WTO-like system of recip- rocal sanctions, and includes other adaptations of the ECJ’s design. We take from this literature the following lines of inquiry. First, we focus on the channels, agents, and mechanisms involved in dif- fusing the ECJ model. Second, we explain how the ECJ’s experience shaped adaptations of the model in the Andean context. Third, we build upon this analysis to explore the limitations and challenges of supranational legal transplants in general. Before turning to this analysis, we first review how the legal transplants literature inter- sects with theoretical debates about the dynamics of legal integration and the literature on the diffusion of European ideas. B. Insights from the Literature on Neofunctionalist Theory and Supranational Integration The success of European integration led early supporters to de- velop neofunctionalism, an institution-based political process theory, to predict the evolution of all regional integration projects. Propo- nents believed that supranational institutions would forge alliances with sub-state actors to address common functional problems whose solution would propel integration forward. In the 1960s, adherents of neofunctionalism predicted that regional integration would become a 26. Initially, private litigants could file complaints with the ECJ to challenge de- cisions of the EC Commission. Today, such suits are heard by the General Court, which was previously known as the Tribunal of First Instance. 27. The notion that importers “order from a menu” comes from WADE JACOBY, THE ENLARGEMENT OF THE EUROPEAN UNION AND NATO: ORDERING FROM THE MENU IN CEN- TRAL EUROPE (2004). 28. For example, some ECJ emulators have adapted the ECJ model to protect national sovereignty or to increase international oversight of domestic actors. See Al- ter, supra note 14. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 9 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 637 global phenomenon. Ernst Haas, the theory’s most prominent advo- cate, recognized that the success of European integration was unusual, in that EC member countries were economically advanced and ideologically similar. But he and other neofunctionalist scholars nonetheless expected regional integration processes to develop else- where in the world and yield similar economic and political outcomes.29 By the 1970s, however, neofunctionalists had thoroughly repudi- ated the theory and candidly acknowledged its many shortcomings. First, the theory failed to predict the trajectory of regional integra- tion in other locales. Second, even in Europe the theory did not apply as expected. The dynamism of the integration process proved to be fragile and subject to political turbulences that slowed forward mo- mentum. The sharp discrepancies between theoretical predictions and empirical reality led Haas to declare neofunctionalism to be “ob- solescent.”30 Ever since, most political scientists have shied away from invoking the theory.31 Neofunctionalism is, however, very much alive as a theory of le- gal integration. The theory was resurrected by Anne-Marie Slaughter (then Burley) and Walter Mattli, who argued that Haas had accu- rately predicted how legal (rather than political) integration evolves.32 Slaughter and Mattli observed that the structure of the European system allowed legal integration to proceed via alliances between supranational and sub-national actors who worked together to promote their mutual self-interest. The authors predicted that EC law would inevitably spill into new legal domains as litigants realized that ECJ precedents could apply to a broad range of issues. Slaughter and Mattli also argued that law could more easily be shielded from political opposition, and they observed that the ECJ frequently sought to “upgrade the common interest” by linking individual cases to larger community objectives. In short, the expansion and penetra- tion of supranational law into national legal orders followed the political dynamics Haas expected: alliances between supranational and subnational actors, spillovers, and the enhancement of common interests. 29. Ernst Haas, International Integration: The European and the Universal Pro- cess, 15 INTERNATIONAL ORGANIZATION 366 (1961); Ernst Haas, The Study of Regional Integration, 24 INTERNATIONAL ORGANIZATION 607 (1970). 30. ERNST HAAS, THE OBSOLESCENCE OF REGIONAL INTEGRATION THEORY (1975). 31. For a discussion of the rise and fall of neofunctionalist theory, see James Cap- oraso & John Keeler, The European Union and Regional Integration Theory, in THE STATE OF THE EUROPEAN UNION (Carolyn Rhodes & Sonia Mazey eds., 1995). A new introduction added to Haas’ re-released Beyond the Nation State explores how Haas’ neofunctionlist theory inspired contemporary political science theories. See ERNST B. HAAS, BEYOND THE NATION STATE FUNCTIONALISM AND INTERNATIONAL ORGANIZATION (2008). 32. Anne-Marie Burley & Walter Mattli, Europe before the Court, 47 INTERNA- TIONAL ORGANIZATION 41 (1993). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 10 3-JUL-12 14:46 638 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 Alec Stone Sweet later extended these insights, linking neofunc- tionalism to a theory of how international courts contribute to the creation of law. Stone Sweet argued that a general dynamic emerges in the presence of economic rules that promote intra-community trade and of a legal system open to self-interested actors. Where these conditions exist, economic self-interest leads litigants to invoke international economic law before supranational judicial bodies. Since law is inevitably incomplete, courts will be drawn into develop- ing it. The result is the construction of new legal rules, which lead to new cases, which create additional opportunities for litigation and ex- pansion of the law. Stone Sweet’s theory does not require embracing the teleology advanced by Haas; it accepts that politicians can revise legal rules and thereby redirect the integration trajectory. But the theory suggests that such interventions will be rare and that courts will, over time, expand the scope and reach of the law.33 Stone Sweet views law, trade, and litigation as creating virtuous circles of law generation. But the relationship among these three ele- ments is underspecified. In particular, it is unclear whether bottom- up economic interests generate demand for international legal rules—so that both governments and courts primarily respond to the self-interest of firms—or, conversely, whether a top-down political commitment to integration drives firms to invest in cross-border pro- duction and trade and to litigate when rules are ambiguous.34 The issue of whether bottom-up demand or top-down policy choices drive legal integration goes to the heart of the debates about legal trans- plants. The transplant literature suggests that importing foreign laws and institutions is insufficient to stimulate local demand, to sig- nal a credible commitment by governments, or to give domestic actors a stake in implementing or enforcing legal rules. To the contrary, the transplanted nature of foreign laws and institutions—especially 33. Alec Stone Sweet, Judicialization and the Construction of Governance, 32 COMPARATIVE POLITICAL STUDIES 147 (1999). Stone Sweet further developed his the- ory in ALEC STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE (2004) [hereinafter STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE] and later focused on the Commission’s role as part of the neofunctionalist legal dynamic. See Alec Stone Sweet, How the European Legal System Works and Does Not Work (Social Science Research Network, 2010). 34. Stone Sweet’s work includes a number of caveats, i.e., factors that limit judi- cial discretion. STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE, supra note 33, R 23-30. But he is ultimately unable to untangle the relationship between laws, trade and litigation, since in Europe they rose in tandem with each other. Id. at 55-92. Pitarakis and Tridimas reanalyze Stone Sweet’s data, finding support for the conclu- sion that international legal rules lead to trade, suggesting that political factors drive economic decisions, rather than visa versa. Studies of the WTO also reach this conclu- sion. Jean-Yves Pitarakis & George Tridimas, Joint Dynamics of Legal and Economic Integration in the European Union, 16 EUROPEAN JOURNAL OF LAW AND ECONOMICS 357 (2003); Judith H. Goldstein et al., Institutions in International Relations: Under- standing the Effects of GATT and WTO on World Trade, 31 INTERNATIONAL ORGANIZATION 37 (2007). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 11 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 639 those seen as externally imposed—may signal that national political commitment is lacking. The legal transplants literature thus hones in on a key challenge that derailed Haas’ neofunctionalist theory: how to create local de- mand for transplanted institutions and laws. Neofunctionalism cannot answer this question because it is premised on the same con- tested assumptions that guided policy-oriented enthusiasts of legal transplants during the period of the Washington Consensus. Even if one sheds the teleology of early neofunctionalism, the theory retains an expectation that transplanted free market rules and institutions will trigger economic actors to trade, invest, and litigate. Mattli, Slaughter, and Stone Sweet added a legal dimension to this equation, drawing attention to the importance of litigation as a tool for spur- ring market-integrating lawmaking and judicial precedent as a mechanism of policy spillover. Yet self-interest remains the under- specified engine of the theoretical apparatus. It is far from clear, however, why local litigants, scholars, and judges would embrace transplanted rules, let alone view their respective self-interests as aligning with regional integration initiatives. C. Insights from the Literature on the Diffusion of European Ideas Supranational transplants also provide evidence to assess theo- ries of how ideas, policies, and institutions diffuse across borders. Scholars who advance such theories are interested in the mecha- nisms of diffusion and the resulting transformation of politics and identities. Tanja Börzel and Thomas Risse identify five such mecha- nisms: (1) exporters of ideas and institutions can use legal, economic or physical coercion; (2) exporters can manipulate the utility calcula- tions of political elites, for example by conferring or withholding inducements; (3) exporters can socialize importers, dispersing their ideas and institutions using normative pressure such that local ac- tors internalize a foreign model; (4) supporters of external ideas and institutions can use persuasion, providing reasoned arguments that convince local actors to accept exported models; and (5) adopters may emulate, either by drawing lessons for themselves or by mimicking foreign models to reap benefits or send signals to external and inter- nal actors.35 Risse and Börzel are primarily interested in the mechanisms of diffusing European Union ideas. They also suggest, however, that each mechanism shapes the extent to which a foreign import becomes domestically entrenched.36 For example, Börzel and Risse expect per- 35. THE TRANSFORMATIVE POWER OF EUROPE: THE EUROPEAN UNION AND THE DIF- FUSION OF IDEAS (Tanja A. Börzel & Thomas Risse eds., 2009). 36. The mechanisms are also relevant to testing the claims of neofunctionalist theory. For example, if mimicry were the dominant mode of transplantation, it would \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 12 3-JUL-12 14:46 640 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 suasion and socialization to have the greatest potential to transform the identities and interests of recipients. They see mimicry as reflect- ing an indirect influence by the ideational exporter and assert that political scientists know very little about how emulation works in practice. The legal transplants literature offers insights that help to refine these expectations. Berkowitz, Pistor, and Richard argue that the way in which local recipients receive the law will determine the suc- cess of the legal transplant. They expect that “a voluntary transplant increases its own receptivity when it makes a significant adaptation of the foreign [model] to initial conditions, in particular to the preex- isting formal and informal legal order. Changes in the transplanted rules or legal institutions indicate that the appropriateness of these rules has been considered and modifications were made to take into account domestic legal practice or other initial conditions.”37 In other words, blind mimicry, or copying inspired by coercion and induce- ment, is likely to generate a “transplant effect” in which local actors resist transplanted ideas and institutions.38 In contrast, the exis- tence of local adaptations may indicate that importers are considering local needs and making adjustments that increase the likelihood of the transplant’s success. There is no evidence that EC officials used coercion or induce- ments to influence other regional integration projects to adopt a supranational court. This leaves three potential mechanisms of diffu- sion—socialization, persuasion, and emulation. If a community legal system is a product of socialization of local elites, then we should ob- serve a higher incidence of emulation among those actors who have more contact with their European counterparts. The question then becomes whether this socialization penetrates the local context, or whether institutional diffusion via socialization of elites gives rise to a transplant effect. Alternatively, if persuasion is the mechanism of diffusion, we should observe importers invoking the persuasive value of European law exports in promoting integration through law. To the extent that local actors are also persuaded, we might not observe a transplant effect. Finally, emulation has multiple forms that yield contrasting expectations. Blind mimicry, where there is no effort to adapt the model to the local context, is likely to give rise to a trans- plant effect. Lesson drawing and its associated adaptations, in contrast, are more likely to lead to successful engrafting of the transplant. cast doubt on whether there is any inherent logic of integration that arises when other regions copy the European model. 37. Berkowitz et al., supra note 15, at 179. R 38. Id. at 170-72. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 13 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 641 II. COPYING THE ECJ: CREATING THE ANDEAN TRIBUNAL OF JUSTICE This section describes the transplantation of the European inte- gration model to the Andes. In 1969 Chile, Bolivia, Colombia, Ecuador, and Peru agreed to create a common market to spur re- gional economic growth.39 The five Andean member countries did not trade extensively with each other. But they hoped that a regional market would attract foreign capital, increase each state’s negotiat- ing leverage with other nations, and induce investors to keep profits in the region.40 The Andean leaders adopted the European integra- tion model, but used it to achieve different substantive goals. Whereas Europe initially focused on market liberalization and sup- port for the agriculture, coal and steel industries, Andean governments promoted a policy of import substitution, which sought to lesson dependency on foreign markets, build manufacturing sec- tors to take advantage of local capabilities, and diminish economic disparities across the region.41 The Andean Pact’s founding treaty, the Cartagena Agreement,42 largely copied the EC’s institutions. It established a supranational governance structure that included a “Commission” of national exec- utives to adopt Andean secondary legislation (referred to in Spanish as “Decisions”) and a regional administrative body (the “Junta”) that supervised their implementation.43 The original Andean Pact did not include a court, and Decisions did not have direct domestic effect.44 According to David Padilla, most Latin American trade agreements in the 1970s lacked legalized dispute resolution bodies. Padilla attrib- utes this omission to the fact that economists—the chief negotiators of these treaties—were wary of “legalism” and feared that formal ad- judication mechanisms would engender litigation by politically 39. The 1966 Bogota Agreement that launched the Andean integration project en- visioned broader integration, building a regional infrastructure and coordinating monetary policy so that the entire region would be one large common market. F.V. GARCÍA AMADOR, THE ANDEAN LEGAL ORDER: A NEW COMMUNITY LAW 2 (1978). 40. William P. Avery & James D. Cochraine, Innovation in Latin American Re- gionalism: The Andean Common Market, 27 INTERNATIONAL ORGANIZATION 181, 198- 99 (1973). 41. Scott Horton, Peru and Ancom: A Study in the Disintegration of a Common Market, 17 TEX. INT’L L.J. 39, 40-41 (1982). The philosophy underpinning the Andean approach followed closely the approach of Raúl Prebish. See RAÚL PREBISCH AND IN- TER-AMERICAN DEVELOPMENT BANK, CHANGE AND DEVELOPMENT—LATIN AMERICA’S GREAT TASK; REPORT SUBMITTED TO THE INTER-AMERICAN DEVELOPMENT BANK (1971). 42. Andean Subregional Integration Agreement, May 26, 1969, 8 I.L.M. 910 [Car- tagena Agreement]. 43. The original Junta had three decision-makers, and thus it was meant to be a more nimble leadership body than the Commission. For more on the Andean Pact, see THOMAS ANDREW O’KEEFE, LATIN AMERICAN TRADE AGREEMENTS (1997); Miguel S. Wionczek, The Rise and the Decline of Latin America Economic Integration, 9 JOUR- NAL OF COMMON MARKET STUDIES 49, 59-61 (1970). 44. Horton, supra note 41, at 44. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 14 3-JUL-12 14:46 642 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 conservative lawyers.45 Why, then, did Andean governments eventu- ally decide to create the ATJ? A. The Decision to Create the Andean Tribunal of Justice From the Andean Pact’s inception, governments believed that they possessed the authority to implement the Cartagena Agreement via presidential decrees,46 and they used such decrees to bring the treaty into force.47 This route had the advantage of avoiding national parliaments, in which fractious political parties might attempt to block or revise implementing legislation.48 But the approach also en- gendered opposition from business elites, who disliked the Andean Pact’s import substitution policies and invoked the failure to submit the treaty to national parliaments to challenge its validity. As we ex- plain below, these efforts ultimately failed. But the manner in which domestic actors responded to these challenges suggested that Andean Decisions would not be given domestic effect—a prospect that acted as a catalyst to create a supranational court. Business elites filed a key lawsuit in Colombia. In 1971, that country’s Supreme Court dismissed the suit,49 invoking a longstand- ing doctrine that disallows invalidation on procedural grounds of treaties adopted in good faith.50 But the ruling applied only to the Cartagena Agreement itself, implicitly suggesting that Andean Deci- sions needed parliamentary approval to be valid in Colombia.51 The court’s ruling also included an integration-friendly dissenting opinion which intimated that the court’s concerns about Andean secondary legislation would be alleviated if there were an Andean tribunal to hear challenges to that legislation.52 45. David Padilla, The Judicial Resolution of Legal Disputes in the Integration Movements of the Hemisphere, 11 LAWYERS OF THE AMERICAS 75, 91 (1979). 46. See Declaración de Bogotá, 16 August, 1966 and Declaración de los Pre- sidentes de América, 14 April 1967. 47. In Colombia, Decree No. 1245 of 8 August 1969; in Chile, Decree No. 428 of 30 July 1969; in Peru, Decree No. 17.851 of 14 October 1969; in Ecuador, Decree No. 1932, 24 October 1969; and Bolivia Decree No. 08985, 6 November 1969. 48. Avery & Cochraine, supra note 40, at 198. Larry W. Thomas, The Colombian R Supreme Court Decision on the Andean Foreign Investment Code and Its Implications for the Law of Treaties, 8 JOURNAL OF INTERNATIONAL LAW AND ECONOMICS 113, 117 (1973). 49. Colombian Supreme Court, ruling of July 26, 1971, published in Derecho de la Integración No. 10, at 160-80. 50. Id. at 165 (section discussing Teorı́a del Acto Complejo). 51. Id. at 166. For a discussion of this point, see Francisco Orrego Vicuña, La incorporación del ordenamiento jurı́dico subregional al derecho interno: Análisis de la práctica y jurisprudencia de Colombia, DERECHO DE LA INTEGRACIÓN 52 (1972). The same legal arguments were used in a legislative debate in Chile, where legislators sought to undermine the Andean investment code that had been implemented via presidential decree. 52. Dissenting opinion of Judge Luis Sarmiento Buitrago, Colombian Supreme Court, ruling of July 26, 1971, supra note 49, at 177. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 15 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 643 One year later, businesses opposed to the Andean Pact filed a second suit in the Colombian Supreme Court. This time, they chal- lenged the Andean investment code, a centerpiece of the integration process and a lightning rod of contestation.53 The code’s strict limits on repatriation of profits galled pro-free market businesses and poli- ticians in the region.54 The lawsuit argued that the Colombian Constitution prohibited implementing the investment code by presi- dential decree. Applying the logic of its earlier ruling, the Supreme Court agreed, holding that the code could only be implemented by the parliament. The Colombian rulings made clear the cost of not having a supra- national court. The heart of the problem was that political leaders had agreed to a controversial Andean law limiting the repatriation of profits by foreign investors, which they implemented by means of presidential decrees. If national courts could render these decrees in- valid, Andean rules and the Andean integration process could be undermined by rearguard domestic litigation. The solution the lead- ers later adopted—making Andean rules supreme and directly applicable, but also reviewable by an Andean tribunal—was intended to avoid this problem by providing a designated judicial venue for challenging Andean laws, thereby helping national executives achieve their collective goals despite political opposition at home. Proponents of an Andean tribunal regularly invoked the two Co- lombian rulings when advocating for the creation of a supranational judicial review mechanism.55 The Junta itself also referred to the Co- lombian rulings when discussing the benefits of revising the Andean legal system.56 In 1972, six months after the second Colombian rul- ing, the Commission announced its support for a tribunal. The Commission directed the Junta to produce a report on the “necessity to create a court” for the region.57 The question of what type of court remained open, however. 53. Thomas Andrew O’Keefe, How the Andean Pact Transformed Itself into a Friend of Foreign Enterprise, 30 INTERNATIONAL LAWYER 811 (1996). 54. Thomas, supra note 48, at 116. Venezuela delayed joining the Andean Pact R until 1973 because the code was more stringent than local investment rules, and Chile withdrew from the Pact in 1976 despite the member states’ begrudging assent to that country’s request to raise the percentage of profits that could be repatriated. Horton, supra note 41, at 49. David E. Hojman, The Andean Pact: Failure of a Model R of Integration?, 20 JOURNAL OF COMMON MARKET STUDIES 139, 146-49 (1981). 55. See, e.g., AMADOR, supra note 39, at 172; Orrego Vicuña, supra note 51; Fran- R cisco Orrego Vicuña, La creación de un tribunal de justicia en el Grupo Andino, 15 DERECHO DE LA INTEGRACIÓN (1974). 56. See JUNTA DEL ACUERDO DE CARTAGENA JUNAC, INFORME DE LA JUNTA SOBRE EL ESTABLECIMIENTO DE ÓRGANO JURSIDICCIONAL DEL ACUERDO DE CARTAGENA (Grupo Andino ed., 1972) [JUNAC Recommendation]. 57. Sexto Perı́odo de Sesiones Extraordinarias, Acta Final, 9-18 December, 1971, Lima, Peru. In the same period, another challenge from the Chilean Senate worried Andean governments and officials. That challenge also questioned the legitimacy of Andean secondary laws that did not have formal parliamentary approval. See Osvaldo \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 16 3-JUL-12 14:46 644 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 B. The Choice of the ECJ Model When Andean officials discussed the creation of a supranational court, several potential models were available for their consideration. The officials could have emulated an early regional tribunal, the Cen- tral American Court of Justice, which heard ten cases between 1907 and 1917 before its founding treaty expired.58 Or they could have em- braced the GATT dispute settlement system, although at the time member states could block cases from proceeding.59 In addition, emu- lating the GATT would not have established the direct effect of Andean Decisions nor created a mechanism for supranational judicial review of Andean institutions and their decisions. Without such re- view, national courts might challenge the authority of community law or interpret Andean rules in inconsistent ways. A third alterna- tive—the ECJ model—was the most obvious fit given the preexisting similarities between other Andean and European institutions. The selection of the ECJ model was virtually guaranteed when the Junta asked the Institute for the Integration of Latin America and the Car- ibbean (INTAL) to evaluate the best model for the Andean Pact. INTAL is a research center established by the Inter-American Development Bank in 1965 with the mission of promoting and consol- idating regional integration.60 Its network of consultants—many of whom are part-time scholars—provides technical assistance to imple- ment and enforce integration policies. INTAL served as a conveyer belt for the transmission of European ideas into conversations about integration in Latin America. At the time, many INTAL consultants had been educated and trained in European universities, and they continued to attend pro-integration academic events in Europe.61 A few had even worked with major European integration scholars such Saldias, Networks, Courts and Regional Integration: Explaining the Establishment of the Andean Court of Justice, Working Paper of the KFG (2010). 58. JEAN ALLAIN, A CENTURY OF INTERNATIONAL ADJUDICATION: THE RULE OF LAW AND ITS LIMITS 73-88 (2000). 59. The GATT system entered a period of relative disuse between 1963 and 1975. See ROBERT E. HUDEC, ENFORCING INTERNATIONAL TRADE LAW: EVOLUTION OF THE MODERN GATT SYSTEM 11-15 (1993). 60. For a retrospective made by INTAL in 1981 in regard to its contribution to regional integration in Latin America, see INTAL, El Intal y La Integración Lati- noamericana Durante 1980, 54 INTEGRACIÓN LATINOAMERICANA (1981). 61. For example, in March 1971, Felix Peña, head of INTAL’s legal department, and Francisco Orrego Vicuña, a Chilean law professor associated to INTAL, partici- pated in a colloquium on the “Legal Aspects of Economic Integration” organized by the Hague Academy of International Law. Also attending this event were ECJ judge Rob- ert Monaco and Eric Stein from the University of Michigan, one of the first American scholars to analyze ECJ doctrine. Cf. Rideau, J. (ed.) 1973: Les Aspects juridiques de l’integration economique. Académie de droit international de La Haye, Colloque 1971, Sijthoff, Leiden.; see also Editorial in Derecho de la Integración, No. 9, Octubre 1971 at 8. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 17 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 645 as Ernst Haas.62 Through these connections, INTAL members were arguably socialized to support integration initiatives. And they dis- tributed pro-integration ideas in Latin American through three publications—Revista Integración Latinoamericana, Derecho de la Integración, and Serie Publicaciones INTAL.63 The INTAL network recommended bundling the creation of an ECJ-style tribunal with foundational ECJ doctrines establishing the direct effect and supremacy of community law in national legal or- ders. By incorporating these legal doctrines into its recommendation for an ECJ-style court, INTAL also implicitly endorsed the ECJ’s view that the Treaty of Rome is a constitutional document that pri- vate actors can draw upon to promote regional integration. The unstated inference was that the Cartagena Agreement should be im- bued with a similar constitutional status. INTAL’s recommendations were an important influence on the creation of the ATJ.64 In June 1972, the Junta convened a Meeting of Experts that included INTAL consultants, Professor Gerard Olivier (the Assistant Director General of EC Legal Services), and ECJ Judge Pierre Pescatore. Following this meeting, the Junta prepared a draft of a treaty establishing the ATJ. Member state representatives discussed the draft in November 1972, and in December a joint Junta-INTAL working group presented a proposal to the Commis- sion.65 The proposal focused on two key requirements: the doctrines of supremacy and direct effect, and a supranational mechanism to review the legality of community acts. Copying the ECJ’s preliminary reference procedure achieved both of these goals. It created an An- dean judicial body to review Andean rules, to ensure their uniform interpretation by national judges, and to “reduce unnecessary and 62. The head of INTAL’s legal department, Felix Peña, was an assistant to Ernst Haas. See http://www.felixpena.com.ar/index.php?contenido=trayectoria. 63. Most of the published articles advocated bolstering the integration process. For example, between 1967 and 1968 Derecho de la Integración published translated articles by some of the key promoters of European legal integration, including Mau- rice Lagrange (Avocate General at the ECJ) and Pierre Pescatore (ECJ Judge). See Maurice Lagrange, La Interpretación Unitaria Del Derecho De Las Comunidades Europeas: Aspectos De Interpretación Prejudicial., 3 DERECHO DE LA INTEGRACIÓN (1968); Pierre Pescatore, Distribución De Competencia Y De Poderes Entre Los Es- tados Miembros De Las Comunidades Europeas: Estudio De Las Relaciones Entre Las Comunidads Y Los Estaods Miembros, 1 DERECHO DE LA INTEGRACIÓN (1967). 64. The Junta’s final report did consider alternatives, but found problems with the GATT, LAFTA, the Central American Common Market, and the East African Community models. See JUNAC Recommendation, supra note 56, at 144; INTAL, Es- R tudio Sobre Procedimientos Para Solucionar Conflictos, 11 DERECHO DE LA INTEGRACIÓN (1972); Felipe Paolillo & Carlos Ons-Indart, Estudios De Los Procedimientos De Hecho Utilizados Para La Solución De Conflictos En La Alalc, 9 DERECHO DE LA INTEGRACIÓN (1971). 65. AMADOR, supra note 39, at 105. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 18 3-JUL-12 14:46 646 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 sometimes disproportionate political tensions” with those judges—an implicit reference to the Colombian Supreme Court rulings.66 Applying the transplants literature reviewed above, one can say that the Junta and INTAL chose the ECJ model based on a combina- tion of persuasion and socialization. The individuals involved genuinely favored creating a supranational tribunal to address the widely recognized problem of noncompliance with Andean Decisions and to further regional integration.67 But they reached this conclu- sion after repeated interactions with European officials and judges who may have wanted to spread the ECJ model to other regions. C. Emulating Europe: Implementing the Junta’s Recommendation for an Andean Tribunal Enthusiasm for creating an Andean judicial body seems to have been strongest among the members of the Junta and the INTAL net- work. Political and business leaders were less convinced. In 1975 Elizabeth Ferris interviewed seventy-five policymakers, technocrats, and private sector representatives in six Andean countries, asking their opinions about various initiatives including the Junta’s propo- sal to create an Andean court. Those interviewed by Ferris saw little need for a supranational court.68 As noted above, the Andean Junta first presented the proposal for a court in December of 1972. In 1974 and again in 1975, the Junta presented statements about the proposal to meetings of the heads of the member states, arguing for the drafting of a treaty to establish a court.69 The heads of state do not appear to have been overtly hostile to the proposal. To the contrary, they authorized the Junta to proceed with drafting a treaty. Still, no definitive action was taken for five and a half years.70 We found no conclusive explanation for this lengthy period of in- action. Perhaps the member states were distracted by the Andean Pact’s larger political difficulties, such as Venezuela’s accession to the Andean Pact in 1973 and the Pinochet coup in the same year, which ultimately led to Chile’s withdrawal from the Pact in 1976. In addi- tion, the Andean investment code continued to be extremely 66. The report explicitly referenced the Colombian Supreme Court’s decisions, and the minority opinion in the 1971 ruling. See JUNAC Recommendation, supra note 56, at 142. R 67. See, e.g., Rafael Vargas-Hidalgo, The Crisis of the Andean Pact: Lessons for Integration among Developing Countries, 27 JOURNAL OF COMMON MARKET STUDIES 213, 224 (1979). 68. Elizabeth G. Ferris, National Political Support for Regional Integration: The Andean Pact, 33 INTERNATIONAL ORGANIZATION 83, 99-100 (1979). 69. AMADOR, supra note 39, at 105-07. R 70. The treaty was presented for adoption on August 8, 1978. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 19 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 647 controversial, and one could reasonably ask whether a supranational legal body would have helped defuse that issue. The Andean Pact’s difficulties in the 1970s underscored that something fundamental needed to change if the member states were to move the integration process forward. Yet even during this troub- led period, the EC continued to serve as a model for Andean integration. Europe also faced significant challenges to integration in the 1970s. In response it adopted several institutional innovations. In 1970 the EC launched the European Political Cooperation initiative to coordinate member states’ foreign policies, and in 1974 it formal- ized the system of councils of heads of states to adopt major decisions related to integration. In 1979 the EC replaced a regional legislative body comprised of national parliamentarians with a system of direct elections to a new European Parliament.71 When integration advocates later revived the Andean integration project, they tracked these developments. The re-launch also pro- vided the impetus for creating the ATJ. In 1979 the member states agreed to create an Andean Parliament and a Council of Foreign Min- isters.72 And in the same year they finally adopted the Treaty Establishing the Tribunal of Justice of the Cartagena Agreement,73 accepting nearly in toto the text drafted by INTAL in 1972, which the Junta had incorporated into its 1975 recommendation.74 D. Adapting the ECJ Model The ATJ replicated the ECJ’s main design features—a noncom- pliance procedure that authorized the Junta to challenge member state violations of Andean law; a preliminary reference mechanism for national courts to send questions involving the interpretation of Andean law to the Tribunal; and a nullification procedure that al- lowed states and private actors to challenge the legality of Andean acts.75 Although the ATJ Treaty does not refer to the supremacy of 71. DESMOND DINAN, EUROPE RECAST: A HISTORY OF THE EUROPEAN UNION chs. 4 & 5 (2004). 72. LUIS CARLOS SÁCHICA, INTRODUCCIÓN AL DERECHO COMUNITARIO (Colección de Estudios del Tribunal de Justicia del Acuerdo de Cartagena, 1985). 73. See Treaty Establishing the Court of Justice of the Cartagena Agreement, 18 INT’L LEGAL MATERIALS 1203 (1979) [Original ATJ Treaty]. 74. The only difference concerned the nullification procedure. The Junta’s draft allowed individuals to file nullification suits as long as the infringing act was applica- ble to them. The final version required that the suing individuals show that the infringement caused harm to them. Compare Original ATJ Treaty, Article 19 with Bases de un tratado para la creación del tribunal de justicia del Acuerdo de Carta- gena, Article 14, in JUNAC Recommendation, supra note 56, at 148. Andean R Commission 1972: Décimo Perı́odo de Sesiones Extraordinarias de la Comisión, COM/ XE-acta final. 75. The Original ATJ Treaty authorized states to challenge Decisions they had not voted for, and it allowed private litigants to challenge acts that caused them in- jury. Original ATJ Treaty, supra note 73, Articles 17-19. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 20 3-JUL-12 14:46 648 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 community law, supremacy was a key component of the Junta’s pro- posal, together with the doctrine of direct effect, which the treaty does expressly mention.76 Although the members of INTAL appear to have been persuaded of the benefits of the ECJ model, the group’s proposal also made a number of adaptations to the model, modifications that reflected their learning from the ECJ’s experience. For example, the ATJ Treaty explicitly directed national courts to implement the Tribunal’s preliminary rulings interpreting Andean law, a requirement that the Treaty of Rome does not mention but that had become part of ECJ doctrine.77 The treaty also includes more detail about the timing of judicial proceedings and the length of the judges’ terms in office.78 Other alterations of the ECJ model appear to protect national sovereignty. As noted above, the ATJ noncompliance procedure em- powered the Junta to challenge member state violations of Andean law. But unlike in Europe, only states, not private actors, could com- plain to the Junta about such violations. In addition, the absence of a supranational procedure to challenge “omissions” by Andean officials meant that private actors could not contest the Junta’s refusal to pur- sue a noncompliance suit. An observer of the time suggested that the lack of an omissions procedure was part of a tacit “gentlemen’s agree- ment” among member states to prevent private actors from seizing the Tribunal in such cases,79 which might be especially sensitive po- litically. These concerns may have been informed by the experiences of the ECJ, which had adjudicated complaints raised by private par- ties that member states would have preferred to ignore.80 76. JUNAC Recommendation, supra note 56, at 139 and 148. R 77. Article 31 of the Original Treaty Establishing the ATJ. Mancini and Keeling discuss how the ECJ’s CILFIT doctrine tries to limit the discretion of national judges with respect to referring cases and implementing ECJ rulings. Federico Mancini & David Keeling, From Cilfit to Erta: The Constitutional Challenge Facing the European Court, 11 YEARBOOK OF EUROPEAN LAW 1 (1992). 78. For example, Article 23 requires the Junta to respond within two months. The terms of the ATJ’s offices are slightly shorter and there are small differences in proce- dure. For a comparison between the ATJ and the ECJ’s founding documents, see E. Barlow Keener, The Andean Common Market Court of Justice: Its Purpose, Structure, and Future, 2 EMORY JOURNAL OF INTERNATIONAL DISPUTE RESOLUTION 37 (1987). 79. On July 16, 1984, Manuél José Cárdenas, columnist of the Colombian newspa- per El Tiempo, wrote: La solución estaba, por lo tanto, en presentar las demandas [de incum- plimiento] correspondientes. Pero como ésta acción está reservada a los gobiernos y éstos acordaron un pacto de caballeros de no presentar ninguna demanda hasta que no se modifique el Acuerdo de Cartagena, la acción cor- rectiva del Tribunal fue esterilizada totalmente. Cited in Eduardo Hurtado Larrea, Los Incumplimientos y La Acción Asignada a La Competencia Del Tribunal, in EL TRIBUNAL DE JUSTICIA DEL ACUERDO DE CARTAGENA (BID-INTAL ed., 1985). 80. For example, German officials were upset that the ECJ’s questioning of turno- ver equalization taxes ended up inundating German courts with legal challenges. The French were unhappy with the ECJ’s Charmasson decision, which found that France \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 21 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 649 Although barred from pursuing noncompliance complaints at the supranational level, private actors were free to file suits in national courts. In principle, national judges could then refer questions of An- dean law to the Tribunal. However, the ATJ Treaty suggested that the Tribunal should exercise restraint in responding to these refer- ences. Article 30 directed the ATJ to “restrict its interpretation to defining the content and scope of the norms of the juridical structure of the Cartagena Agreement. The [Tribunal] may neither interpret the contents and scope of national law, nor judge the facts in dis- pute.”81 This language plausibly reflects an awareness of the ECJ’s well-known practice of broadly interpreting questions posed by na- tional courts, analyzing the facts of the case (a task nominally reserved to national judges), and suggesting pro-integration interpre- tations of domestic rules.82 The ATJ faithfully adhered to these limitations on its authority. The first noncompliance proceeding involved a private litigant who attempted to file suit directly with the Tribunal rather than with a national court. The ATJ dismissed the suit, citing the treaty provi- sion barring private actors from raising noncompliance cases.83 When the same legal issue later arose in preliminary references involving challenges to a Colombian tariff on Venezuelan aluminum imports, the ATJ adhered to its limited role of interpreting Andean law in the abstract and not addressing the facts of the case.84 One should not, however, overstate these adaptations of the ECJ model. The architects of the Andean legal system expected that pri- vate actors would challenge noncompliance with Andean rules in national courts.85 Moreover, the drafters adopted an innovation in- tended to enhance state adherence to Andean rules. Unlike the EC, which did not then include a procedure for penalizing noncompliance with ECJ rulings, the ATJ Treaty adopted a GATT-like system that authorized retaliatory trade sanctions if a state refused to follow an ATJ judgment against it.86 This addition suggests that states sought to create a supranational legal system capable of inducing respect for had ceded its authority to make trade arrangements. See ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW, supra note 7, at 80-85, 151-53. R 81. See Original ATJ Treaty, supra note 73. R 82. Federico Mancini, The Making of a Constitution for Europe, 24 COMMON MAR- KET LAW REVIEW 595, 606 (1989). The Benelux Court—another ECJ copy—was also authorized to respond only to the questions posed. Treaty Establishing the Benelux Court, 31 March 1965, Art. 6; modified by protocols of 10 June 1981 and 23 November 1984, available at http://www.courbeneluxhof.be/fr/basisdocumenten.asp. 83. ATJ decision 1-AI-87. 84. We discuss these cases later, when we explain how the ATJ did not follow the ECJ’s approach in Van Gend en Loos case. See infra text accompanying notes 103-106. R 85. In rejecting the private litigant’s noncompliance suit in 1-AI-87, the ATJ sug- gested that private litigants should instead raise such challenges in national courts. 86. Original ATJ Treaty, supra note 73, Article 25. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 22 3-JUL-12 14:46 650 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 Andean rules. In sum, the design of the ATJ on paper was a close copy of its European cousin. When the Tribunal began operations in 1984, however, it faced a slew of practical challenges that the ECJ had not experienced. Most notably, the funds that member states had pledged to the ATJ were delayed, the Tribunal lacked a permanent building to house its oper- ations, and the Junta, member states, and national courts filed only a handful of cases.87 The paucity of substantive work was partly an artifact of the political stalemate that impeded the creation of a com- mon market. In the 1980s, the Andean investment code remained controversial, member countries clung to rules that exempted most products traded within the region,88 and governments were preoccu- pied by economic and political crises related to high levels of foreign debt. By the early 1990s, however, the member states sought to rein- vigorate the Andean integration project.89 They began in 1991 by laying the groundwork for a common external tariff.90 Over the next five years, they amended the Cartagena Agreement, replaced the im- port-substitution policy with a free trade model, and rechristened the new integration project as the Andean Community.91 In 1997 the member states also replaced the mostly ineffectual Junta with a Gen- eral Secretariat, increased the size of its budget, and appointed a cadre of young lawyers eager to use the Secretariat’s enhanced re- sources to promote regional integration.92 Reforming the Andean legal system was part of this wider insti- tutional overhaul. The reforms reflected what Andean leaders had learned about that system over the previous decade. Notwithstand- ing the ATJ treaty’s unambiguous text, member states often opposed the Junta’s attempts to file noncompliance suits with the Tribunal. In addition, private litigants rarely used the preliminary reference mechanism to challenge national policies contrary to community 87. During this decade, national courts filed only thirty-two preliminary refer- ences requests, private parties filed only three nullification complaints, and national executives refrained from filing any noncompliance suits. ATJ judges spent most of their time locating a permanent building for the court and resolving labor disputes with staff members. Interview with Ugarte del Pino, Peruvian Judge of the ATJ, 1990-1995, Lima, Peru, June 22, 2007. 88. Hojman, supra note 54. R 89. O’Keefe, supra note 53, at 811, 818 (describing how Andean governments R “reformulate[ed] the entire philosophical underpinnings of the Andean Pact” and pro- moted “the adoption of free-market oriented policies by all member states”). 90. In December of 1991 Andean Presidents approved the Act of Barahona, which ordered the creation of a four-tiered common external tariff. This policy was imple- mented by Decision 370, adopted on November 26, 1994. 91. The changes are discussed in O’Keefe, supra note 53. R 92. Interviews with Monica Rosell, former Legal Secretary of the ATJ and Attor- ney in the Legal Advisor’s Office of the Secretariat General, Quito, Ecuador, Mar. 17, 2005 & Chicago, IL Apr. 1, 2007. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 23 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 651 rules. The reforms of the Andean legal system were intended to ad- dress these shortcomings.93 The Cochabamba Protocol, adopted in 1996, brought the Tribu- nal even closer to the ECJ model.94 It repealed the ban on private actors filing complaints with the General Secretariat alleging viola- tions of Andean law.95 The Protocol also implicitly recognized that private litigants were not raising noncompliance challenges in na- tional courts, or that national judges were not referring those challenges to the ATJ. To remedy the dearth of cases, the Protocol went beyond the ECJ’s noncompliance procedure by authorizing pri- vate actors to appeal directly to the ATJ if they disagreed with the Secretariat’s disposition of a noncompliance complaint against a member state. Another reform facilitated suits seeking to nullify An- dean acts by eliminating a requirement that private litigants show direct injury from those acts.96 The Protocol also added an “omis- sions” procedure to enable litigants to challenge an Andean institution’s failure to act. Lastly, the Protocol relaxed restrictions on preliminary references by indicating that ATJ judges could now ad- dress how Andean rules applied to the facts of cases when doing so was necessary for their rulings.97 The end result of these reforms was an Andean legal system that—much like the EC—provided private parties with multiple avenues to challenge state noncompliance. The Cochabamba Protocol reforms also reflected learning by An- dean actors. The individuals who drafted the ATJ Treaty incorporated ECJ doctrines on the direct effect and supremacy of community law and required national judges to follow the Tribunal’s 93. Treaty Creating the Court of Justice of the Cartagena Agreement, as amended by the Protocol of Cochabamba (May 28, 1996), www.comunidadandina.org/ ingles/treaties/trea/ande_trie2.htm, art. 25 [hereinafter Revised ATJ Treaty]. The General Secretariat advocated these reforms so that it could credibly argue that its own failure to initiate a noncompliance suit would trigger private actors to file their own noncompliance actions. Interview with Alfonso Vidales Olviedo, Former head of the Secretariat General Legal Advisor’s office, June 22, 2007, Lima, Peru. 94. Differences persisted, however, especially in light of changes to the European legal system in 1989, when the ECJ gained a Tribunal of First Instance and a system to sanction states that ignored ECJ rulings. The ECJ also created doctrines that al- lowed national courts to sanction states that failed to implement community rules in a timely fashion. The ATJ has not followed the ECJ in creating decentralized enforce- ment mechanisms. On expansions to the European legal system, see JONAS TALLBERG, EUROPEAN GOVERNANCE AND SUPRANATIONAL INSTITUTIONS: MAKING STATES COMPLY 72-82 (2003). 95. Revised ATJ Treaty, supra note 93, art. 25. R 96. Id. art. 19, adding instead, that the challenged act should affect the individ- ual’s “legitimate interests.” 97. Id. art. 34 (amending ATJ Treaty to authorize the ATJ to “refer to th[e] facts [in dispute] when essential for the requested interpretation”). The Cochabamba Pro- tocol also authorizes the ATJ to hear three other types of cases: complaints against a Community body that “abstain[s] from carrying out an activity for which it is ex- pressly responsible”; arbitrations; and Community labor disputes. Id. arts. 37-40. The ATJ has only rarely exercised these functions. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 24 3-JUL-12 14:46 652 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 rulings. But they also adapted the ECJ model to protect national sov- ereignty, for example by authorizing private actors to bring noncompliance suits in national courts but not to the General Secre- tariat. The next generation of Andean leaders recognized that this adaptation had in fact undermined the system’s ability to induce ad- herence to Andean rules. Their solution was to incorporate the institutional features of the EC legal system that the founders had originally rejected, and to enhance those features by allowing private actors to bring noncompliance cases directly to the ATJ. III. CHARTING ITS OWN COURSE: ATJ JURISPRUDENCE FROM 1984-2007 Having compared the design of the ATJ and ECJ, we now con- sider whether the two supranational courts have operated in similar ways.98 The ATJ exhibited an early willingness to copy foundational ECJ doctrines even when they lacked an explicit textual basis in An- dean law. When it came to applying these doctrines, however, the Tribunal diverged from its European counterpart in several signifi- cant respects. Like the ECJ, the Tribunal exercised its power to assess the validity of Andean rules and to find states in noncompli- ance with unambiguous Andean laws. But unlike European judges, the members of the ATJ generally rejected the pleas of private liti- gants to construe Andean laws expansively and to adopt unwritten legal obligations that might have advanced integration, especially when doing so was likely to trigger objections from national actors. A. Importing Foundational ECJ Doctrines Early ATJ decisions embraced key ECJ doctrines. When the Tri- bunal issued its first preliminary ruling in 1987, it used the opportunity to explain how the Andean legal system worked. The case did not involve the supremacy of Andean law. But the ATJ none- theless noted that member states had declared the “full validity” of the following principles: a) the legal system of the Cartagena Agreement has its own identity and autonomy, constitutes a common law and is part of the national legal systems, b) the legal system of the Agreement prevails within the framework of its compe- tences, over the national norms, without unilateral acts or 98. This section adapts material previously published in Karen J. Alter & Lau- rence R. Helfer, Legal Integration in the Andes: Lawmaking by the Andean Tribunal of Justice, 17 EUROPEAN LAW JOURNAL 701(2011) [hereinafter Alter & Helfer, Legal Integration], and Karen Alter & Laurence Helfer, Nature or Nurture: Judicial Law- making in the European Court of Justice and the Andean Tribunal of Justice, 64 INTERNATIONAL ORGANIZATION 563 (2010) [hereinafter Alter & Helfer, Nature or Nurture]. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 25 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 653 measures from the Member Countries being able to oppose this legal system, c) the Decisions implying obligations for the Member Countries come into effect on the date indicated.99 The ATJ thus confirmed the founders’ belief that transplanting the ECJ model also brought along with it two foundational doctrines of European law—the supremacy of community rules and their direct effect within national legal orders. In its second preliminary ruling, the ATJ incorporated additional ECJ innovations. The case raised the question of the status of na- tional laws that conflicted with Andean rules but that nevertheless remained on the books. The ATJ reasoned as follows: As far as the effect of the norms of integration on national norms, the doctrine and jurisprudence indicate that, in the case of conflict, the internal rule will be superseded by the community one, which will be applied preferentially, since the competence in such a case corresponds to the commu- nity. In other words, the internal norm becomes inapplicable, to the benefit of the community norm. The [ECJ] has repeatedly given this indication (see principally the Costa/ENEL decision of June 15, 1964, and the Sim- menthal decision of March 9, 1978) in agreement on this point with the spirit of the norms of the Andean integration. This effect of supersession of the national norm as a result of the application of preference is especially clear when the later law – which must have priority over the prior one, in accordance with universal principles of law – is precisely the community norm. . . . The [ECJ], in the previously cited decisions, has affirmed the absolute preeminence of community law over internal law, an argument that is also applicable to the judicial system of the Andean integration, in accordance with what was previ- ously indicated.100 Taken together, these two early rulings revealed that the ATJ shared with the ECJ the fundamental premise that community law is different from other types of international law.101 The two rulings 99. 1-IP-87 p.3. 100. 1-IP-88 point 2, p. 2-3. 101. The ATJ reiterated this point in a later decision, in which it held that commu- nity law creates a “direct application effect” which transforms “states and citizens into subjects of a new system in which they both possess rights and obligations.” This reality “distinguishes community law from international law.” 1-IP-96, Section III. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 26 3-JUL-12 14:46 654 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 also appeared to set the stage for the Tribunal to follow in the auda- cious footsteps of its European predecessor. B. Deviating from the ECJ Over its nearly thirty year existence, the ATJ has faced several opportunities to emulate the ECJ’s practice of promoting integration through law. It has responded by charting a course that deviates from the ECJ model. We discuss three examples of this divergence and suggest that they reflect weak local demand for Andean integra- tion by governments and private actors. 1. Are Community Treaties Constitutional Documents? The best known and most audacious of the ECJ’s achievements is its transformation of the Treaty of Rome into a supranational consti- tution for Europe.102 The ATJ has not followed the ECJ’s bold strategy. Instead, it has allowed member states to amend the Andean Community’s founding treaty—the Cartagena Agreement—with rel- ative ease and thereby to control the pace and scope of Andean integration. Two decisions from the early 1990s illustrate this divergence.103 The cases were closely analogous to the famous Van Gend en Loos case, in which the ECJ proclaimed the direct effect of the Treaty of Rome’s free trade rules within national legal orders.104 As in Van Gend en Loos, the plaintiffs claimed that the Cartagena Agreement imposed immediate constraints on member state actions and thus prohibited Colombia from imposing new duties on imports from Ven- ezuela. Unlike in Europe, however, Andean governments had previously adopted a Free Trade Program that permitted states to adopt broad exemptions from regional free trade rules. The plaintiff nevertheless argued that the Cartagena Agreement should be inter- preted as freezing tariffs for exempted products. Colombia countered that the Agreement must be interpreted in conjunction with the Free Trade Program, which, it argued, had the effect of revising the treaty.105 The ATJ agreed with the government, reasoning that the Program afforded member states free reign to exempt goods notwith- 102. Proponents of this claim note how the ECJ made the Treaty of Rome directly effective within national legal orders, and supreme to national law. They also cite the ECJ’s human rights jurisprudence. See Stein, supra note 3; Weiler, supra note 3. R 103. See 1-IP-90 and 3-IP-93. These cases were later iterations of the 1987 com- plaint that the ATJ rejected because private actors were at the time barred from raising noncompliance cases. See 1-AI-1987. 104. Van Gend en Loos v. Nederlandse Administratie der Belastingen, C-26/62, [1963] E.C.R. 1, 12. 105. Osvaldo Saldias, Supranational Courts as Engines of Disintegration, Berlin Working Paper on European Integration No. 5, at 12 (2007). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 27 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 655 standing the eventual adoption of broader free trade rules envisioned by the treaty.106 In a later case, the ATJ clarified its views regarding how member states could amend the Cartagena Agreement. The ruling involved a challenge to a Decision authorizing Peru—then undergoing major structural adjustments to its economy—to derogate from certain pro- visions of Andean law.107 The Junta filed suit to nullify the Decision in November 1996, when Andean governments were actively discuss- ing Peru’s situation. A few months later, the member states adopted the Sucre Protocol, one provision of which affirmed the derogation.108 But the Junta’s nullification suit was still on the ATJ’s docket, and the Tribunal refused to dismiss the case.109 In its ruling on the mer- its, the ATJ found that the Decision granting a derogation to Peru was procedurally improper, but that this illegality had been “purged” by the Sucre Protocol. In other words, the ATJ did not need to nullify the Decision because a valid Andean law had already superseded it. The Tribunal also distinguished between Decisions—which are sec- ondary legislation adopted by member states—and Protocols which are treaty amendments agreed to during a “conference of plenipoten- tiaries” (reunión de plenipotenciarios).110 This distinction suggests that the procedure for adopting Proto- cols is more onerous than that for adopting Decisions. Formally speaking, the process of amending the Cartagena Agreement is the same as that for amending the EC’s founding charter: the heads of member states must meet to adopt the amendments, which must then be ratified by each state.111 In reality, however, convening a re- union de plenipotenciarios does not appear to be very difficult. There are fewer member states in the Andean Community, no evidence of a 106. 1-IP-90, Conclusion point 1. 107. The 1990s were a time of significant unrest in Peru. The most noteworthy event was the autogolpe (self-coup) in which President Alberto Fujimori, with the sup- port of the military, suspended the constitution, dissolved the Congress, and purged the judiciary. 108. Sucre Protocol of July 30, 1997, available at http://www.comunidadandina. org/INGLES/normativa/ande_trie4.htm. The Protocol was much like the Single Euro- pean Act that re-launched European integration by advancing the EC’s longstanding goal of developing a common market. The Protocol contained a “transitory provisional chapter” stating that the Andean Free Trade Area would become operational by the end of 2005, and it allowed Peru to negotiate with the Commission its entry into the common external tariff system. For a summary of the Protocol’s key achievements, see http://www.comunidadandina.org/INGLES/press/press/np14-4-03b.htm. 109. The Tribunal reasoned that Decisions were “public acts” and that there was a general interest in ensuring the validity of such acts notwithstanding the Junta’s re- quest to dismiss the case. Point 1.4.1 of ATJ ruling 1-AN-1996. 110. Points 2.4 & 2.5 of ATJ ruling 1-AN-1996. 111. It isn’t entirely clear what qualifies as a reunión de plenipotenciarios. Would a meeting of heads of states suffice? One difficulty in answering this question is that “Decisions” are the formal label attached to all Andean laws, and it often isn’t clear whether a “Decision” was adopted at a reunion de plenipotenciarios, or in a Commis- sion meeting. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 28 3-JUL-12 14:46 656 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 reluctance to convene intergovernmental conferences, and no larger acquis of normative commitments that national governments view as inviolable. In addition, the existence of powerful Executives means that domestic ratification of treaty amendments is usually assured. 2. Does the Community Possess Implied Powers to Preempt National Laws? Another question that both the ATJ and ECJ faced was whether the creation of community rules in particular policy domains implic- itly precluded member states from enacting national laws in those domains even in the absence of regional legislation that expressly preempted national law. The founding treaties, which primarily fo- cused on creating supranational institutions and setting collective goals, did not answer this question. As compared to the ECJ, the ATJ has given governments significantly greater leeway to adopt national laws in areas of community competence and has refused to imply powers for Andean institutions. The ECJ addressed the issue of implied powers in the ERTA de- cision.112 As Joseph Weiler has explained, the ECJ conferred on EC institutions the authority to adopt treaties binding on the member states—a power not mentioned in the Treaty of Rome. To achieve this result, the court “sidestep[ped] the presumptive rule of interpretation typical in international law, that treaties must be interpreted in a manner that minimises encroachment on state sovereignty.” Instead, it “favored a teleological, purposive rule drawn from the book of con- stitutional interpretation.”113 The ECJ later barred states from enacting any national legislation on issues within the community’s exclusive competence. Weiler aptly summarized the consequences of the ECJ’s doctrinal moves: In a number of fields, most importantly in common commer- cial policy, the [ECJ] held that the powers of the Community were exclusive. Member States were precluded from taking any action per se, whether or not their action conflicted with a positive measure of Community law. In other fields, the exclusivity was not an a priori notion. Instead, only positive Community legislation in these fields triggered a preemptive effect, barring Member States from any action, whether or not in actual conflict with Community law, according to spe- cific criteria developed by the court. Exclusivity and pre- emption not only constitute an additional constitutional layer on those already mentioned but also have had a profound effect on Community decisionmaking. Where a 112. Case 22/70, Commission v. Council (ERTA) [1971] ECR 263. 113. Weiler, supra note 3, at 2416 (discussing the ERTA decision). R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 29 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 657 field has been preempted or is exclusive and action is needed, the Member States are pushed to act jointly.114 The ATJ, although aware of the ECJ’s experience, chose a different path—the principle of complemento indispensable. According to this doctrine, first espoused in a 1988 ruling, member states may enact domestic laws necessary to implement a community measure pro- vided that those laws do not obstruct or nullify the community rule.115 In a 1990 decision, the ATJ further cabined the preemptive force of Andean law. It stressed that integration is a gradual, incre- mental process that limits the extent to which community rules preempt national authority even in areas, such as intellectual prop- erty,116 where Andean law clearly governs: “[I]t seems logical that many of these diverse issues, even if they have to be a matter of com- mon regulation, are still within the competence of the national legislator for an indefinite time until they are effectively covered by Community norms.”117 3. How Much Deference is Appropriate When National Judges Apply Community Law? Both supranational tribunals have considered how to define their relationships with national judges at the boundary between commu- nity law and domestic law. In Simmenthal, the ECJ articulated a doctrine that includes an obligation for “every national court [to] ap- ply Community law in its entirety and . . . accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.”118 In later cases, the ECJ set stringent limitations on national judges’ ability to interpret EC law without first seeking the Court’s guidance.119 Although the ATJ referred to the Simmenthal decision in early preliminary rulings,120 it subsequently refused to endorse the full im- plications of the case and its progeny. The key dispute involved 114. Id. at 2416-17. 115. ATJ decision 2-IP-88, Point 3. 116. The ATJ has been given greater preemptive force to Andean intellectual prop- erty rules than to other areas of Andean law. The Tribunal has relied on the extensive and detailed secondary legislation on patents, trademarks, and copyrights as an indi- cation that the member states had “sovereignly transferred” their “exclusive authority” over intellectual property issues to the community level. 1-IP-96, Section III (holding that, in the area of intellectual property, member states cannot deviate from “the common interests” of the community except by acting through Andean institutions). 117. 2-IP-90, Point 1. 118. Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), ECJ Case 106/77 (1978) ECR 629, [1978] CMLR 263, 283. 119. SRL CILFIT v. Ministry of Health (I), ECJ case 283/81, [1982] ECR 3415. For an explanation of how the ECJ used this ruling to constrain national judges, see Man- cini and Keeling, supra note 77. R 120. See discussion of 1-IP-88, supra note 100 and accompanying text. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 30 3-JUL-12 14:46 658 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 various challenges to municipal alcohol regulations in Colombia. In one suit, opponents argued before the Colombian Constitutional Court that the licenses violated Andean law.121 The court rejected the suit, concluding that community law did not supplant Colombian law. Unlike human rights treaties, which have quasi-constitutional status in Colombia,122 Andean law was, according to the court, equivalent to domestic legislation. Because such laws “and the Constitution do not share the same hierarchy, nor are [they] an intermediate legal source between the Constitution and ordinary domestic laws, . . . contradic- tions between a domestic law and Andean community law will not have as a consequence the non-execution of the [domestic] law.” The Colombian Court adopted somewhat abstruse reasoning, stating that community law has “primacy” over conflicting national law, but sug- gesting that primacy means that community law “displaces but does not abrogate or render non-executable” conflicting national legislation.123 A later iteration of the dispute involved a preliminary reference from another Colombian court, the Consejo de Estado, which arose after the ATJ upheld a separate noncompliance challenge to the regu- lations by two other member states. Had the Tribunal followed Simmenthal, it would have directed the national judges to invalidate the licenses as contrary to Andean law. Instead, the ATJ merely re- peated its finding from the earlier noncompliance suit without indicating whether the Consejo de Estado was required to give effect to that finding. This deference is consistent with the ATJ’s broader understand- ing of the division of authority between itself and domestic courts. Our review of all preliminary rulings through 2007 disclosed only one case, decided in 1998, where the ATJ considered how its interpreta- tion of Andean law might apply to the facts presented.124 In all other 121. The licenses were also successfully challenged in an ATJ noncompliance suit. See 3-AI-97. 122. The Constitutional Court ruling notes that international human rights agree- ments ratified by Colombia are part of a “bloque de constitucionalidad” which gives them a status superior to than national law. Article 93 of Colombia’s 1993 Constitu- tion states: “International treaties and agreements ratified by the Congress that recognize human rights and that prohibit their limitation in states of emergency have priority domestically.” Colombian Constitutional Court, Sentencia C-256/98 of 27 May 1998, Section 3.1. 123. Id. Section 3.1. 124. The 1998 case concerned Venezuela’s implementation of a common Andean policy that aimed to strengthen the competitiveness of the Andean shipping industry. The ATJ found the facts provided to be insufficient, thus it added to the information provided by the Venezuelan court. The ATJ chronicled Naviera Pacı́fico’s efforts to get the Venezuelan government to create domestic incentives that might help it weather economic hard times, and to exclude the Brazilian company NORSUL from transport- ing cargo from the route assigned to Naviera Pacı́fico, since Brazil excluded shipping companies from the Andean region. Although the ATJ did not direct the Venezuelan court to grant subsidies, the clear implication was that Venezuela must exclude ac- \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 31 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 659 preliminary rulings, the ATJ explicated the meaning of Andean law in the abstract without suggesting how national judges should re- solve the dispute. This deferential approach continued even after the 1996 reforms to the ATJ Treaty, discussed previously, in which mem- ber states indicated that the Tribunal could consider the facts of preliminary references and thus, implicitly, guide domestic courts in the application of Andean law.125 4. Why Diverge? When ATJ judges considered each of the three legal issues dis- cussed above, they were unquestionably aware of the analogous ECJ precedents. They nonetheless chose to diverge from the path that their European colleagues had previous trod. Given the very similar design of the two supranational tribunals and the repeated refer- ences to ECJ doctrine by the drafters of the ATJ Treaty, one might have expected an Andean “copy” of a European “model” to adhere more closely to the doctrines of its parent.126 What explains the dis- tinctive evolution of ATJ jurisprudence and the broad leeway that the ATJ has given to the member states? The cases themselves do not answer this question, but the broader political context into which a supranational court was transplanted suggests a number of plausible explanations. One is that many Andean Pact programs from the 1960s and 1970s predated the ATJ’s existence. It would have been too controversial for the Tribunal to overturn these longstanding policies. A second possibility relates to the basic premise of the region’s early integration agenda. As previously discussed, the Andean Pact’s import substitution policy and regional industrial programs de- pended heavily on foreign investment, which never materialized. The lack of progress regarding Andean industrial development created a conundrum: should a state be held to the community’s market liberal- ization goals if it had not received the quid pro quo of industrial development assistance? Andean law resolved this problem by creat- ing a Free Trade Program that allowed member states to exempt politically sensitive products.127 This resolution was in tension with the Cartagena Agreement, which prohibited imposing new trade bar- riers and required their progressive removal. But it was a plausible cess to ships from countries that do not grant reciprocal access to ships from other Andean Community member states. The application of these principles to the facts at hand was thus obvious. See 19-IP-98. 125. See supra notes 93-97 and text accompanying (discussing changes made by R Cochabamba Protocol to preliminary reference procedures). 126. For one issue—the primacy of community law over other international agree- ments such as the WTO—the ATJ has been more willing than the ECJ to extend its authority. Over time, however, the ECJ has interpreted EC rules so as to constrain member states from undermining those rules through multilateral treaties. See Alter & Helfer, Legal Integration, supra note 98. R 127. Hojman, supra note 54. R \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 32 3-JUL-12 14:46 660 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 political compromise, one that was arguably necessary to keep the troubled integration project afloat, and one that the ATJ may have been unwilling to undermine without a clear textual basis in the treaty. A third possibility is that the judges’ interpretation of Andean law reflects a belief that the Tribunal lacks the deep political support needed to promote legal integration more aggressively. Since member states can easily amend the Cartagena Agreement, the ATJ may have been reticent to construe the treaty as a constitutional charter that limits national power and discretion, as the ECJ has done for the Treaty of Rome. Also unlike in Europe, national judges in the Andes have generally refrained from setting aside national laws that con- flict with community law, leading the ATJ to back-peddle from its early embrace of the ECJ’s Simmenthal doctrine. However, in those few areas where greater legal and political support for integration exists—in particular, intellectual property law—the Tribunal has been willing to be bolder, especially when the General Secretariat or member states as a group have expressed support for its efforts.128 IV. SUPRANATIONAL TRANSPLANTS: LESSONS FROM THE ANDEAN TRIBUNAL OF JUSTICE A critical issue that emerges from the literature on the diffusion of legal transplants is the existence and extent of local demand for transplanted laws and institutions. Neofunctionalist theory assumes that private litigants who stand to benefit from regional integration will raise claims before supranational courts and thereby help to de- velop community rules. Studies of the export of ideas offer a range of other reasons why local actors may either embrace or reject trans- plants. The literature on legal transplants suggests that laws and institutions copied in response to coercive external pressure or unre- flective mimicry are likely to be resisted or remain unused. In contrast, transplants that local actors embrace voluntarily, and transplants that are adapted to local needs, are more likely to be effective. How, then, did the existence of the ECJ shape the ATJ’s founding and its subsequent doctrinal trajectory? Andean leaders, aware of the ECJ’s well-known activism, included safeguards in the original ATJ Treaty to limit the ability of private actors to challenge national laws. Perhaps most importantly, private actors were barred from filing noncompliance suits with the Junta or the Tribunal. Instead, they were limited to requesting national judges—most of whom were una- 128. For a more detailed discussion of the ATJ’s intellectual property jurispru- dence, see Laurence R. Helfer, Karen J. Alter & M. Florencia Guerzovich, Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community, 103 AM. J. INT’L L. 1 (2009). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 33 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 661 ware of, or unsympathetic to, Andean law—to refer cases to the ATJ. Only a handful of such referrals were ever made outside of the excep- tional area of intellectual property. And in those cases that reached the Tribunal, the ATJ Treaty deterred the Tribunal from applying Andean laws to the facts, thus limiting the guidance the Tribunal could give to national courts. The member states relaxed these structural constraints in 1996 when they adopted a package of institutional reforms that were in- tended to increase the effectiveness of the Andean legal system and expand the Tribunal’s docket. These adaptations suggest lesson drawing, both from the ATJ’s first twelve years and from the EC legal system. But despite these changes, the ATJ has continued to issue mostly narrow, technical rulings and to avoid the expansionist law- making of its European cousin. One reason for the Tribunal’s circumspect approach is that the ATJ has confronted the same basic challenge that all supranational transplants face: how to enlist the support of key domestic interlocu- tors and compliance constituencies. In Europe, the ECJ cultivated national judges as key allies in promoting legal integration. In copy- ing the ECJ’s preliminary ruling system, and in authorizing private litigants to bring suit invoking Andean rules in domestic courts, An- dean officials opened the door for the ATJ to forge its own alliances with domestic judges. But these judges have declined to become the Tribunal’s active partners. As we explain elsewhere, once the initial barriers to referrals were surmounted, national judges have been willing to refer cases when Andean rules unambiguously require them to do so.129 But they do not work in tandem with the ATJ to develop community law. They do not send expansive questions to the Tribunal, and display little appetite for defying governments by set- ting aside domestic laws or decrees that conflict with Andean law. The ATJ has, however, forged a different set of alliances—with domestic administrative agencies responsible for protecting intellec- tual property. These agencies apply Andean Decisions to determine whether to register the thousands of applications for trademarks and patents that they receive from private firms. The agencies were thus logical interlocutors for ATJ judges. Agency officials repeatedly sought the Tribunal’s guidance to clarify ambiguities and lacunae in Andean law, and they have habitually applied those rulings even when doing so challenges national executive or legislative decisions. Over time, the ATJ and the agencies have developed a symbiotic rela- tionship that has helped to establish intellectual property as a 129. For an account of how litigants overcame domestic judicial barriers, see Lau- rence R. Helfer & Karen J. Alter, The Andean Tribunal of Justice and Its Interlocutors: Understanding the Preliminary Ruling Reference Patterns in the An- dean Community, 42 N.Y.U. J. INT’L L. & POL. 871, 900-11 (2009). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 34 3-JUL-12 14:46 662 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 distinctive “island of effective international adjudication” in the An- dean Community legal system.130 These findings have important implications for neofunctional- ism, including its recent revival as a theory of legal integration. Neofunctionalism predicts that an alignment between the demands of private litigants and the interests of supranational judges will pro- mote regional integration. Our study indicates that it is insufficient for litigants to challenge domestic rules. A supranational court must also provide a hospitable venue for using community law to disman- tle conflicting national policies. The ATJ’s refusal to interpret Andean law purposively to help litigants further their economic in- terests created a vicious circle that inhibited the filing of additional cases and diminished the domestic influence of Andean law.131 The only exception to this pattern is in the area of intellectual property, where the ATJ enjoys the support of a specialized advocacy network whose branches extend both within the state (the administrative agencies that apply Andean laws when reviewing patent and trade- mark applications) and outside of it (the private firms that utilize intellectual property and the attorneys that defend their interests). In sum, the ATJ’s experience suggests—contrary to the expecta- tions of neofunctionist theory—that transplanting supranational laws and legal institutions is insufficient in itself to stimulate local demand for those laws and institutions. This is so even where a hand- ful of entrepreneurial litigants present a supranational court with opportunities to embed the transplants, and even where at least some supranational actors are interested in promoting integration.132 At the level of legal doctrine, the ATJ’s selective emulation of ECJ jurisprudence offers insights for ideational diffusion theory. The ECJ is widely viewed as authoritative by judicial and legal communi- ties around the world. This exalted stature offered a ready blueprint for Andean judges: slavishly follow the ECJ’s doctrinal innovations and defend that decision by referencing the many design similarities that the two courts share. But the ATJ chose not to chart this course, suggesting that socialization is not the mechanism through which the ECJ model has diffused. Instead, the Tribunal’s à la carte approach suggests lesson-drawing—a type of emulation in which the judges recognized that legal doctrines that served salutary functions in Eu- rope might not work well in the Andes, where the pace and scope of 130. Helfer, Alter & Guerzovich, supra note 128, at 21-25. R 131. This is also true for the ECJ, where ECJ rulings can either increase or de- crease litigation on specific issues. See Karen J. Alter, The European Legal System and Domestic Policy: Spillover or Backlash, 54 INTERNATIONAL ORGANIZATION 512-15 (2000). 132. Karen J. Alter, Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953-1975), in THE EUROPEAN COURT’S POLITI- CAL POWER (Karen J. Alter ed., 2009). \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 35 3-JUL-12 14:46 2012] TRANSPLANTING THE EUROPEAN COURT OF JUSTICE 663 integration were far more modest. This lesson-drawing, as opposed to blind mimicry—another type of emulation—gave ATJ judges the dis- cretion to pick and choose which EC legal doctrines were germane to the Andean context and consonant with local political realities.133 Some legal scholars have argued that the European experience is sui generis in ways that preclude the ECJ from serving as a template for other international courts and tribunals.134 The extent to which the ATJ has selectively copied from the ECJ reveals, however, that a supranational court can be a model in some respects but not in others. In particular, the ATJ’s refusal to emulate the ECJ’s penchant for expansionist lawmaking suggests that transplanting key design features and legal doctrines does not necessarily result in transplanting judicial activism in the interpretation of key legal texts.135 There are several reasons to expect that the ECJ will remain an influential model for other international courts and tribunals. The ECJ has developed extensive and well-reasoned legal doctrines that have benefitted from a large and stable secretariat, a cadre of profes- sional clerks (known as referendaires), and an active and ongoing dialogue with critics including law faculty and national high court judges. ECJ rulings are also translated into multiple languages and posted on the internet, making it easy for judges around the world to access and review them. The ECJ will also continue to serve as a model because the Euro- pean Union is interested in spreading supranational courts to other regions and in helping them flourish. Europe provides free consulta- tions, encourages judicial networks, and gives in-kind and financial support to resource-starved governments and supranational judges.136 European universities also invite students from around the world to study European integration, generating pro-integration scholarship by local actors. Officials provide these forms of aid with 133. The ECJ also relies on persuasion to influence public and private actors to follow its lead. We explore how the European and Andean environments differed in Alter & Helfer, Nature or Nurture, supra note 98. R 134. Jose Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38 TEX. INT’L L.J. 405, 25-27 (2003); Eric A. Posner & John C. Yoo, A Theory of Interna- tional Adjudication, 93 CAL. L. REV. 1, 55-57 (2005). 135. Alter & Helfer, Nature or Nurture, supra note 98. R 136. In the Andean context, this support took a variety of forms. As previously noted, INTAL consulted with ECJ judges during conversations about creating an An- dean Tribunal. The EC later negotiated an associate agreement with the Andean Community to bolster Andean integration efforts. The EC and its member states also provided financial support for the work of the Comisión Andina de Juristas, which undertook initiatives to promote Andean legal integration, including disseminating rulings on the ATJ’s website and facilitating the Tribunal’s outreach to national judges. Telephone interviews with the Asesor jurı́dico at the Comisión Andina de Juristas, May 20, 2008 and Dec. 8, 2008. \\jciprod01\productn\C\COM\60-3\COM302.txt unknown Seq: 36 3-JUL-12 14:46 664 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 no overt strings attached because they believe the European model is worth emulating.137 For these and other reasons, the judges who serve on interna- tional tribunals, and the scholars who write about these tribunals, continue to invoke ECJ rulings. This may mislead observers to con- clude that judicial practices around the world are more alike than they actually are. In this respect, the ATJ’s significant deviations from the ECJ model are noteworthy. While we expect supranational courts to consider how the ECJ has handled analogous legal issues, ECJ transplants may ultimately find that they have more in common with each other than with their common parent. Seen from this per- spective, the ATJ—which has close to thirty years of experience— may in fact be a better guide for other ECJ transplants to consult and possibly emulate. 137. Alter, supra note 14; Tobias Lenz, Spurred Emulation: The EU and Regional R Integration in Mercosur and SADC, 35 W. EUR. POL. 155 (2012). 
work_whaebpapdjabvogrxev4niiatu	----	Compendium of Tribal Crime Data, 2011 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder Compendium of Tribal Crime Data, 2011 2 June 2011 Bureau of Justice Statistics James P. Lynch Director BJS Website: www.bjs.gov For information contact: BJS Clearinghouse 1-800-732-3277 The Bureau of Justice Statistics is the statistics agency of the U.S. Department of Justice. Duren Banks coordinated the development of this compendium. Contributing authors include Duren Banks, Allina Lee, Ron Malega, Todd Minton, Mark Motivans, Steven W. Perry, Brian Reaves, and Howard Snyder. In addition to the authors, other BJS staff who contributed to verification include Paul Guerino, Tracey Kyckelhahn, and Tracy L. Snell. Morgan Young and Jill Thomas edited the report, Barbara Quinn designed and produced the report, and Jayne Robinson and Tina Dorsey prepared the report for final printing under the supervision of Doris J. James. June 2011, NCJ 234459 3Compendium of Tribal Crime Data, 2011 Compendium of Tribal Crime Data, 2011 BJS Mandatory P.L. 280 states Optional P.L. 280 states Indian reservations (U.S. Census Bureau) Source: Bureau of Justice Statistics Overview Tribal Crime Data Collection Activities Duren Banks, Steven W. Perry, and Allina Lee Tribal Law Enforcement, 2008 Brian Reaves State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, and Duren Banks Selected Findings: Jails in Indian Country, 2009 Todd Minton Summary: Tribal Youth in the Federal Justice System Mark Motivans and Howard Snyder 4 June 2011 Content s Overview 7 Tribal Crime Data Collection Activities 9 The Tribal Law and Order Act, 2010 (TLOA; Pub. L. No. 111-211, 124 Stat. 2258, Section 251(b)) requires the Bureau of Justice Statistics (BJS) to establish and implement a tribal data collection system and to support tribal participation in national records and information systems. This is the first BJS report on the status of tribal data collection activities as required by the act. It describes BJS’s activities between July 2010 and June 2011 to improve tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and BJS’s direct collaboration with tribal criminal justice systems to collect data about tribal court systems. It summarizes data published by BJS on jails in Indian country, tribal law enforcement agencies, state prosecutors’ offices with jurisdiction in Indian country, tribal youth in the federal justice system, and reporting to the UCR. It describes activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Table 1.1. Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) Program and receiving Byrne/Justice Assistance Grant (JAG) awards, FY 2008-2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 1.2. Bureau of Justice Statistics planned program activities in response to the Tribal Law and Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tribal Law Enforcement, 2008 15 Presents data on tribal law enforcement agencies from the 2008 Census of State and Local Law Enforcement Agencies. This report defines the number and locations of tribal law enforcement agencies, service populations, and the number of sworn and nonsworn employees. It describes agency participation in traditional law enforcement (routine patrol, criminal investigation, and dispatching calls for service), public safety functions (emergency management, animal control, and fire services), specialized functions (search and rescue, tactical operations, and underwater recovery), and court-related activities (executing arrest warrants, enforcing protection orders, and serving process). The report details participation in multiagency task forces involving drug and human trafficking, gangs, violent crime, and antiterrorism. It presents data on community outreach efforts, such as school resource officers and community policing officers. Table 2.1. Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 . . . . . . . . . . . . . . . . 16 Table 2.2. The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008. . . . . . . . . . . . . . . . . 17 Table 2.3. Use of community policing and school resource officers by tribal police departments, 2000 and 2008 . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.1. Location of tribally operated law enforcement agencies, 2008 . 15 Figure 2.2. Selected law enforcement functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.3. Selected court-related functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figure 2.4. Selected special functions performed by tribal police departments, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Figure 2.5. Task force participation of tribal police departments, 2008 . . . 19 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 Describes state prosecutors’ offices with jurisdiction in Indian country under Public Law 83-280 (P.L. 280). This report examines the activities of prosecutors’ offices in states affected by P.L. 280 through either mandatory or optional jurisdiction. Six states have mandatory jurisdiction under P.L. 280 over crimes in Indian country: Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. The report also examines activities of prosecutors’ offices in the 10 states that have an option to assume jurisdiction over crimes in Indian country within their borders: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Using data from the 2007 National Census of State Court Prosecutors, this report describes the characteristics of state prosecutors’ offices with jurisdiction for crimes committed in Indian country, including budgets, staffing, and caseload. It also examines the types of offenses committed in Indian country that were prosecuted in 2007. Table 3.1. Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3.2. State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . 22 Table 3.3. Type of state prosecutors’ offices in Indian country, by P.L. 280 status, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 3.4. Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Figure 3.1. State prosecutors’ offices reporting jurisdiction in Indian country under P.L. 280, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Figure 3.2. State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 . . . . . . . . . . . . . . . . 24 5Compendium of Tribal Crime Data, 2011 Contents (continued) Selected Findings: Jails in Indian Country, 2009 27 Presents selected findings from the bulletin Jails in Indian Country, 2009, released in February 2011 (NCJ232223). Data are based on an enumeration of 80 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA) reported to the annual Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009. It also summarizes rated capacity, facility crowding, and jail staffing. Table 4.1. Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007-2009 . . . . . . . . . . . . . . . . . . . . 28 Table 4.2. Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Table 4.3. Number of Indian country jails, by percent of rated capacity occupied, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Table 4.4. Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 . . . . . . . . . . . . . . . . . . . . . . 30 Table 4.5. Number of inmates confined in Indian country jails, by demographic characteristics, conviction status, and offense, midyear 2000, 2002, 2004, and 2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Table 4.6. Number of persons employed in Indian country jails, by job function, June 30, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Figure 4.1. Inmates confined in Indian country jails, at midyear 2000-2004 and 2007-2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Figure 4.2. Percent of rated capacity occupied, by type of inmate count, June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Summary: Tribal Youth in the Federal Justice System 35 Presents findings on tribal youth processed through the federal criminal justice system between 1999 and 2008. Findings are from a recent study conducted by the Urban Institute under the Bureau of Justice Statistics’ Federal Justice Statistics Program (FJSP). This report describes the number of tribal youth in the federal system and examines how they are handled through the stages of the federal criminal case process, from arrest to confinement. It describes tribal youth demographic characteristics, offenses, and case outcomes, such as referrals for prosecution, dismissal rates, sentencing, and time served. Table 5.1. Reason for matters declined for prosecution with tribal youth suspects, 2005-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Table 5.2. Federally recognized tribes and enrolled members, 2005. . . . . 38 Table 5.3. Tribal and non-tribal youth admitted to the Federal Bureau of Prisons, by offense type, 1944-2009 . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 5.1. Tribal youth referred to and prosecuted by U.S. attorneys, 2000-2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Figure 5.2. Case-related reasons for declination, 2005-2008 . . . . . . . . . 37 Figure 5.3. Tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5.4. Maximum time in federal custody of juveniles adjudicated delinquent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Figure 5.5. Tribal youth in the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.6. Non-tribal youth admitted to the Federal Bureau of Prisons, by status, at admission, 2000-2009 . . . . . . . . . . . . . . . . . . . . . . . . 40 Figure 5.7. Non-tribal youth admitted to the custody of federal prison authorities, and five federal judicial districts that committed the majority of tribal youth, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Highlights Tribal Crime Data Collection Activities 9 � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 to 22. � In 2008, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 6 June 2011 Highlights (continued) Tribal Law Enforcement, 2008 15 � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during fiscal year 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Selected Findings: Jails in Indian Country, 2009 27 � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. Summary: Tribal Youth in the Federal Justice System 35 � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. 7Compendium of Tribal Crime Data, 2011 Overview The Tribal Law and Order Act (TLOA), enacted July 29, 2010, requires the Bureau of Justice Statistics (BJS) to (1) establish and implement a tribal data collection system and (2) support tribal participation in national records and information systems (P.L. 111-211, 124 Stat. 2258, § 251(b)). The act further requires the director of BJS to consult with Indian tribes to establish and implement this data collection system. The BJS director is required to report to Congress within one year of enactment, and annually thereafter, the data collected and analyzed in accordance with the act. This report describes activities in support of BJS’s tribal crime data collection system and summarizes findings published from that system between July 2010 and June 2011. Multifaceted data collection system Criminal jurisdiction in Indian country—federally recognized reservations, tribal communities, and identified trust lands—varies by the type of crime committed, whether the offender or victim was a tribal member, and the state in which the offense occurred. Due to the sovereign status of federally recognized tribes in the United States, crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. Public Law 83-280 (P.L. 280) gave select states legal jurisdiction over tribal members to prosecute crimes that occur on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska. P.L. 280 permitted other states to acquire jurisdiction over crimes committed in Indian country at their option. These optional P.L. 280 states assume jurisdiction, either in whole or in part, over Indian country within their boundaries, and include Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In the remaining states, where P.L. 280 does not apply, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian country (as defined in the Major Crimes Act and subsequent amendments (18 U.S.C. § 1153)). Tribal governments have jurisdiction for all other crimes committed in Indian country that involve both an Indian offender and Indian victim. States retain jurisdiction for non-Indian crimes committed in Indian country—those in which neither the offender nor the victim is a tribal member. Due in part to these jurisdictional complexities, existing tribal data systems are often limited in scope and applicable only to certain jurisdictions or states. An effective tribal data collection system will include data from federal, state, local, and tribal agencies. The information maintained in this system should further be considered in light of the concurrent jurisdictional roles multiple agencies maintain in Indian country. Recent findings from the tribal data collection system 178 tribal law enforcement agencies operated in 2008 In September 2008, American Indian tribes operated 178 law enforcement agencies. These 178 agencies employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Tribes operated law enforcement agencies in 28 states and employed about 3,000 full-time sworn personnel. Eleven of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles. (See Tribal Law Enforcement, 2008, page 15, for more information.) 83 tribal law enforcement agencies provided data through the Bureau of Indian Affairs (BIA) that met the FBI’s guidelines for publication Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty-three tribal law enforcement agencies met FBI guidelines for data publication in the report.* Nearly 3,800 violent crimes and approximately 11,400 property crimes were known to *Crimes known to tribal law enforcement agencies are submitted to the UCR through the BIA. UCR data must be submitted by local law enforcement with a valid reporting number, and be complete for all 12 months of the year. Data submitted to the UCR must also meet FBI data quality guidelines for publication in Crime in the U.S. 8 June 2011 these selected tribal law enforcement agencies in 2009. (See the FBI’s Crime in the United States, 2009, http:// www2.fbi.gov/ucr/cius2009/data/ table_11.html, for more information.) 93 state prosecutors’ offices in P.L. 280 states reported jurisdiction for felonies committed in Indian country In 2007, 93 state court prosecutors’ offices reported jurisdiction under P.L. 280 for felonies committed in Indian country. Seventy-three percent of these offices reported prosecuting at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). Most state prosecutors’ offices with jurisdiction under P.L. 280 served districts with 100,000 or fewer residents. (See State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007, page 21, for more information.) Jails in Indian country housed 2,176 inmates in 2009 The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and midyear 2009, from 2,135 to 2,176 inmates. Over the 12 months ending June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. (See Selected Findings: Jails in Indian Country, 2009, page 27, for more information.) Most tribal youth in the federal system were referred for violent offenses Between 1999 and 2008, 65% of tribal youth in criminal matters received by federal prosecutors were referred for a violent offense. Sexual abuse was the most common violent offense, followed by assault and murder. In 2008, federal prosecutors received 129 tribal youth suspects in matters opened out of 178,570 total matters investigated. Tribal youth admitted to the legal custody of federal prison authorities were mostly male (90%) and tended to be older teens; more than two-thirds were between the ages 16 and 17. (See Summary: Tribal Youth in the Federal Justice System, page 35, for more information.) 9Tribal Crime Data Collection Activities, 2011 The Bureau of Justice Statistics (BJS), in collaboration with other federal agencies and American Indian tribes, conducted several activities to develop the tribal data collection system as of June 2011. The data collection system establishes both new data collections and enhances current programs to carry out the requirements of the Tribal Law and Order Act (TLOA), 2010. BJS focused on improving tribal law enforcement reporting to the FBI’s Uniform Crime Reporting Program (UCR) and developed direct data collection from tribal criminal justice systems, such as collecting information about the nature and operation of tribal court systems. Efforts also include activities and funding opportunities to improve tribal crime data collection through programs such as the National Criminal History Improvement Program (NCHIP), the National Instant Criminal Background Check System (NICS), Byrne/JAG funding, and UCR training. Activities to Support Tribal Crime Data Collection Systems, July 2010 through June 2011 Tribal consultations conducted in 2010 BJS consulted with tribal leaders through a variety of forums in 2010. BJS developed and distributed an initial plan that responded to the TLOA sections that directly referenced tribal crime data collection. This plan was presented to several stakeholder groups to invite feedback and input, including— � Interdepartmental Tribal Justice Safety and Wellness Consultation, Session 12 (December 2010, Palm Springs, CA) � Uniform Crime Reporting Program (UCR) trainings for tribal law enforcement (2010) agencies � National Congress of American Indians, 2011 Executive Council Winter Meeting (March 2011, Washington, DC). For the first time, the Bureau of Indian Affairs’ (BIA) submissions to UCR were disaggregated by tribe and reported in the FBI’s Crime in the U.S., 2009 Working with the Office of Justice Services in the BIA, and the Office of Tribal Justice and the FBI in the Department of Justice (DOJ), BJS developed a process to support tribal access to, and input in, regional and national criminal justice databases, including the National Crime Information Center (NCIC) and the Uniform Crime Reporting Program (UCR). As a result of this process, data provided to the FBI from the BIA were able to be disaggregated by tribe. Offenses known to tribal law enforcement agencies were reported by tribal agencies in the FBI’s Crime in the United States, 2009. Eighty- three tribal law enforcement agencies met FBI guidelines for data to be published in the report. Tribal Crime Data Collection Activities, 2011 Duren Banks, Ph.D., and Steven W. Perry, BJS Statisticians Allina Lee, BJS Policy Analyst U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234518 Highlights � The Bureau of Justice Statistics (BJS) consulted with tribal leaders through a variety of forums in 2010. � For the first time, the Bureau of Indian Affairs’ (BIA) submissions to the Uniform Crime Reporting Program (UCR) were disaggregated by tribe and reported in Crime in the U.S., 2009. � The number of tribes eligible for Byrne/JAG funding increased from 5 in 2008 to 22 in 2010. � In 2010, 140 tribal law enforcement staff received UCR training. � BJS provided competitive funding opportunities for jurisdictions to improve criminal records in fiscal year 2011. � BJS developed a multifaceted data collection system that both established new collections and enhanced current programs. 10 Compendium of Tribal Crime Data, 2011 The number of tribes eligible for Byrne/ JAG funding increased from 5 in fiscal year 2008 to 22 in fiscal year 2010 Collaborative efforts between the departments of Justice and Interior have increased the number of tribes reporting monthly crime data to the UCR, thereby increasing the number of tribes eligible to receive Byrne/JAG awards. Byrne/JAG funds can be used to support a range of activities in seven broad program areas, including law enforcement; prosecution and courts; crime prevention and education; corrections; drug treatment and enforcement; program planning, evaluation, and technology improvement; and crime victim and witness programs. Most American Indian tribes had been ineligible to receive Byrne/JAG funds because of gaps in Indian country crime statistics and traditional methods for reporting data. Prior to 2009, BIA provided an aggregate number of crimes known to tribal law enforcement to the UCR. Since these data could not be disaggregated by tribe, tribal law enforcement agencies that did not submit information directly to the UCR were not eligible for Byrne/JAG awards. In FY 2008, 25 tribes submitted crime data directly to the FBI, with 5 of the tribes eligible to receive Byrne/JAG awards totaling $150,000. In FY 2010, the number of tribes that submitted crime data increased to 144 following collaborative efforts between agencies in the departments of Justice and Interior, with 22 tribes eligible for Byrne/JAG awards totaling $709,000 (table 1.1). More than 140 tribal law enforcement staff received UCR training Through Recovery Act funds, BJS developed and implemented the Tribal Crime Data project to further support the reporting of tribal crime to the UCR, and thereby establish eligibility for Byrne/ JAG funds. The project is also part of BJS’s larger effort to collect more reliable information on American Indians in the criminal justice system and crimes committed in Indian country. Through the Tribal Crime Data project, BJS conducted three training sessions in 2010, with more than 140 tribal members, on the use of the UCR systems. In 2011 the project provided training and technical assistance to tribes that did not meet FBI data quality guidelines or had not previously submitted complete crime data to BIA. Table 1.1 Tribes submitting crime data to the Uniform Crime Reporting Program (UCR) and receiving Justice Assistance Grant (JAG) awards, FY 2008–2010 Number of tribes— Fiscal Year Reporting to UCR Eligible for JAG award Eligible award amount 2008 25 5 $150,000 2009 106 20 559,000 2010 144 22 709,000 BJS, acting jointly with the Office of Justice Services, BIA (DOI), and the FBI (DOJ), will work with tribes and tribal law enforcement to establish and implement tribal data collection systems (P.L. 111-211 § 251(b)). 11Tribal Crime Data Collection Activities, 2011 Funding for improving criminal records To improve criminal records, BJS provided outreach to agencies in tribal jurisdictions through two competitive funding opportunities: � National Criminal History Improvement Program (NCHIP) solicitation, 2011 � National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) solicitation, 2011. The TLOA made federally recognized tribes eligible for awards under BJS’s NCHIP. State and tribal entities apply for NCHIP funds to enhance the crime fighting and criminal justice capabilities of governments by improving the accuracy, utility, and interstate accessibility of criminal history records. Jurisdictions also apply for NCHIP funds to enhance records of protective orders that involve domestic violence and stalking, sex offender records, automated identification systems, and other state systems that support national records systems and their use for criminal history background checks. BJS released the FY 2011 NCHIP solicitation on January 13, 2011, and collaborated with other OJP components to disseminate information about the NCHIP funding announcement as broadly as possible. Tribal contacts were alerted via email to the funding opportunity, and the solicitation was posted to the BJS and DOJ Tribal Safety and Justice websites. Information about the NCHIP funding opportunity was also presented during several meetings and a consultation in the fall and winter of 2010. Additionally, BJS developed an addendum to the solicitation that identified priority funding areas and eligibility requirements for tribal applicants. The addendum outlined key tribal priority areas activities related to— � information technology systems to capture and transmit tribal issued domestic violence and stalking records to the FBI NCIC Protection Order File � automation and transmission of existing qualifying domestic violence and stalking records to the FBI NCIC Protection Order File. The NARIP implements the provisions of the NICS Improvement Amendments Act of 2007, enacted in the wake of the shooting tragedy at Virginia Tech and includes tribes as eligible entities. The NARIP funds provide assistance to eligible states and tribes to improve the completeness, automation, and transmittal of records needed by the NICS to identify persons prohibited from receiving or possessing a firearm. These records include prohibited mental health adjudications and commitments, felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, domestic violence protection orders, and misdemeanor crimes of domestic violence. BJS will award FY 2011 NARIP funds to support efforts to improve the records used by NICS, by providing assistance to states and tribes to improve the completeness, automation, and transmittal of records to state and federal systems. BJS released the FY 2011 NARIP solicitation on March 15, 2011. The same process used to disseminate information about the NCHIP funding opportunity was followed to alert tribes to the NARIP solicitation. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to competitively award NCHIP and NARIP funds in FY 2011. Eligible applications will be evaluated and scored by peer reviewers, and funding will be made based on the selection criteria outlined in the solicitations. BJS is authorized to provide for improvements in the accuracy, quality, timeliness, immediate accessibility, and integration of state and tribal criminal history and related records (P.L. 111-211 § 251(b)(1)(H)). 12 Compendium of Tribal Crime Data, 2011 BJS established new collections and enhanced current programs In addition to collaborating with other federal agencies to improve tribal law enforcement reporting to the UCR, BJS developed a plan to collect information about tribal criminal justice systems. This multipronged approach both established new collections and enhanced current programs that serve the purposes of the TLOA. Through its ongoing statistical projects, BJS provided information on (1) suspects and defendants processed in the federal criminal justice system, including federal prosecutions of crimes committed in Indian country, (2) the incidence of crimes known to law enforcement that occur on tribal reservations or were reported by Indian country law enforcement authorities, (3) the characteristics of tribal law enforcement agencies, and (4) the characteristics of jails in Indian country. BJS plans to begin collecting information about the nature and operation of tribal court systems in 2012 (table 1.2). Survey of Tribal Court Systems BJS developed the Survey of Tribal Court Systems to build on BJS’s previous Census of Tribal Justice Agencies (See Census of Tribal Justice Agencies in Indian Country, 2002, BJS Web, December 2005). The survey will gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers operating in the estimated 190 federally recognized tribal justice systems in the U.S. Subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law, BJS plans to award the Survey of Tribal Court Systems in FY 2011. BJS will work with the awardee and collaborating organizations to develop the data collection instrument and methodology. The instrument will include, at a minimum, measures of tribal court organization, court caseload, characteristics of prosecutors in tribal courts, and systems to provide indigent defense in tribal courts. Based on the results of the initial data collection, BJS will devise a strategy for conducting a regular data collection program among Indian country court systems. Census of State and Local Law Enforcement Agencies The Census of State and Local Law Enforcement Agencies provides data on staffing, functions, and expenditures. Data collected include the number of sworn and civilian personnel by state and type of agency, and functions performed by each agency. BJS analyzed and published findings from data collected in 2008, from the Census of State and Local Law Enforcement Agencies program, including 178 tribal law enforcement agencies. Survey of Jails in Indian Country The Survey of Jails in Indian Country data describe jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or BIA. The annual report from the Survey of Jails in Indian Country includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions at midyear. It also summarizes rated capacity, facility crowding, and jail staffing. The most recent report that describes findings from the 2009 survey was released in February 2011. National Census of State Court Prosecutors In 2007 BJS conducted the National Census of State Prosecutors, which was the second complete enumeration of all chief prosecutors who tried felony cases in state courts of general jurisdiction. The census collected information about whether district The director of BJS will establish and implement a tribal data collection system (P.L. 111-211 § 251(b)). 13Tribal Crime Data Collection Activities, 2011 Table 1.2 Bureau of Justice Statistics Planned Program Activities in Response to the Tribal Law and Order Act Program Objective Timeline Collaboration with DOJ Components and BIA To increase the number of tribes eligible to receive Edward Byrne Memorial Justice Assistance Grant (JAG) Program funds, ensure tribal access to regional and national databases, and develop comprehensive tribal crime data systems. Ongoing. BJS Recovery Act Program To support tribes to more accurately and consistently report tribal crime data to the BIA and/or the FBI through technical assistance, training, and information sharing. Crimes known to some tribal law enforcement agencies published in Crime in the United States, 2009 and annually thereafter. Grants to Support Tribal Participation in Regional and National Databases To continue to include federally-recognized tribes as eligible entities for the National Instant Criminal Background Check System (NICS) Act Record Improvement Program and add federally- recognized tribes as eligible entities to the National Criminal History Improvement Program (NCHIP) grant awards. Tribes are eligible for awards as of FY 2009 (NICS) and FY 2011 (NCHIP). Census of State and Local Law Enforcement Agencies To collect data from all state, local, and tribal law enforcement agencies on staffing, expenditures and functions. BJS will continue to implement strategies designed to accurately represent the work of tribal law enforcement agencies. Periodically since 1992. Latest report: 2004 census 2008 census report in 2011. Survey of Tribal Court Systems To gather administrative and operational information from tribal courts, prosecutors’ offices, and indigent defense providers. Award: August 2011. Design and Data Collection: 2011-2012. Analysis and Reporting: Early 2013. Survey of Jails in Indian Country The survey is an annual enumeration of jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the BIA. Data are collected intermittently via an addendum to the core survey on the physical conditions and operations of Indian country facilities. The addendum requests information on inmate medical services, mental health services, suicide prevention procedures, substance dependency programs, domestic violence counseling, sex offender treatment, education programs, and inmate work assignments. Annually since 1998. Latest report: 2009 survey 2010 survey report expected in 2011. Federal Justice Statistics Program To compile comprehensive information describing suspects and defendants processed in the federal criminal justice system. Ongoing since 1998. Annual data through 2009 available on the BJS website. BJS Native American Crime Information Website To provide users with easy-to-access and current information from existing and new data collection programs Design and populate website: 2010-2011. Public release: Late 2011. 14 Compendium of Tribal Crime Data, 2011 attorney offices have jurisdiction for prosecuting felony cases occurring in Indian country under P.L. 280, and what types of crimes the office prosecuted. The findings from this data collection are in State Prosecutors’ Offices with Jurisdiction in Indian Country on page 21. Federal Justice Statistics Program The Federal Justice Statistics Program (FJSP) provides comprehensive and detailed information about the federal justice system’s processing of criminal cases. The FJSP provides annual data on workload, activities, and outcomes associated with federal criminal cases. Information is acquired on all aspects of processing in the federal justice system, including arrests, prosecution decisions, referrals to magistrates, court dispositions, sentencing outcomes, sentence length, and time served. The FJSP receives the source data from the U.S. Marshals Service, Drug Enforcement Administration, Executive Office of U.S. Attorneys, Administrative Office of the U.S. Courts, U.S. Sentencing Commission, and the Federal Bureau of Prisons. BJS is currently developing research projects that will examine American Indian defendants who are processed in the federal justice system. Findings from the first of these projects, describing characteristics of American Indian youth who are processed in the federal criminal justice system, are in the Summary: Tribal Youth in the Federal Justice System on page 35. References Crime in the United States, 2009, U.S. Department of Justice, Federal Bureau of Investigation, September 2010. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. State Prosecutors Offices with Jurisdiction in Indian Country, 2007, NCJ 234241, BJS Web, June 2011. Tribal Law Enforcement, 2008. NCJ 234217, BJS Web, June 2011. Summary: Tribal Youth in the Federal Justice System, NCJ 234218, BJS Web, June 2011. Tribal Law Enforcement, 2008 15 Tribal Law Enforcement, 2008 Brian A. Reaves, Ph.D., BJS Statistician In September 2008, American Indian tribes operated 178 law enforcement agencies that employed at least one full-time sworn officer with general arrest powers or the equivalent in part-time officers. The total includes 157 general purpose tribal police departments and 21 special jurisdiction agencies tasked with enforcing natural resources laws that pertain primarily to hunting and fishing on tribal lands. Collectively, tribes operated law enforcement agencies in 28 states. Washington (24), Arizona (22), Oklahoma (19), and New Mexico (17) had the largest numbers of tribal law enforcement agencies (figure 2.1). These findings are based on the 2008 Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies. In addition to tribally operated agencies, the Department of the Interior’s (DOI) Bureau of Indian Affairs (BIA) operated 42 agencies that provided law enforcement Highlights � Tribally operated law enforcement agencies employed nearly 4,600 full-time personnel, including about 3,000 sworn officers. � The largest tribal law enforcement agency, the Navajo Police Department, employed 393 full-time sworn personnel in Arizona, New Mexico, and Utah. � Eleven of the 25 largest tribal law enforcement agencies served jurisdictions covering more than 1,000 square miles. � Overall, tribal police departments cost about $257 per resident to operate during FY 2008. � In addition to law enforcement functions, nearly all tribal police departments performed court-related functions, such as court security and serving process. � More than half of tribal police departments used community policing officers, and more than a third used school resource officers. � About 4 in 5 tribal police departments participated in one or more multiagency task forces. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011 NCJ 234217 No tribally operated LE agencies Under 5 agencies 5-9 agencies 10 or more agencies Figure 2.1 Location of tribally operated law enforcement agencies, 2008 Source: Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008 Compendium of Tribal Crime Data, 201116 services in Indian country. Nationwide, BIA employed 277 full-time sworn personnel in 2008. Along with direct oversight of its own programs, BIA also provided technical assistance and some oversight to tribally operated agencies. On the more than 300 federal Indian reservation areas in the U.S., police officers may be tribal, federal, state, county, or municipal employees. Some areas may be served by more than one type of officer. Commonly, tribal police department funding, administration, and employees are based on the Indian Self-Determination and Education Assistance Act of 1975, (Public Law 93-638 or P.L. 638). This law allowed tribes to assume responsibility for many programs previously administered by the federal government, including law enforcement. P.L. 638 agencies operate with tribal employees under contract and with financial assistance from the BIA. Tribally operated agencies can also function under a self-governance compact with the BIA. This arrangement provides block grant payments, allowing for more tribal control than the line item funding of P.L. 638 contracts. Full tribal control over law enforcement services exists where such services are entirely funded by the tribal government. Jurisdiction over offenses in Indian country may lie with federal, state, or tribal agencies, depending on the offense, offender, victim, and offense location. Most tribes have cross- deputization agreements, often with neighboring nontribal agencies. These agreements allow law enforcement personnel from state, local, and tribal entities to cross jurisdictions in criminal cases, and can be used to enhance law enforcement capabilities in areas where state and tribal lands are contiguous and intermingled. In some instances, the number of agreements is large. For example, the Cherokee Nation Marshal Service is cross-deputized with 50 municipal, county, state, and federal agencies. Tribal police departments employed 2.3 full-time officers per 1,000 residents In September 2008, the 178 operating tribal law enforcement agencies employed more than 4,500 full- time personnel, including about 3,000 sworn officers (table 2.1). The 157 general purpose tribal police departments employed 4,294 full-time personnel, including 2,835 sworn officers and 1,459 civilian personnel. These agencies employed an additional 129 part-time personnel, including 80 sworn officers (not shown in table). The 21 natural resources agencies employed 271 full-time personnel, including 164 sworn officers and 107 civilian employees. These natural resources agencies also employed 11 part-time personnel, including 7 sworn officers (not shown in table). General purpose tribal police departments had a combined service population of about 1.2 million residents.* This corresponds to about 2.3 full-time sworn officers per 1,000 residents, which was the national average for all local police departments as of 2007. (See Local Police Departments, 2007, BJS Web, December 2010.) Collectively, tribal police departments cost $257 per resident to operate for 2008 (not shown in table). In 2007 the national average for all local police departments was $260 per resident. *Based on the American Indian service population counts published in BIA’s American Indian Population and Labor Force Report, 2005. The service population is the total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the BIA- funded tribal services. The service population excludes any non-Indian residents served by a tribally operated law enforcement agency and other persons using roads, stores, casinos, and other public places on tribal land. Table 2.1 Tribally operated law enforcement agencies, by type of agency and number of full-time sworn personnel, 2008 Type of agency and number of full-time sworn personnel Number of agencies Number of full-time employees Total Sworn Civilian All agencies 178 4,565 2,999 1,566 General purpose police departments Total 157 4,294 2,835 1,459 50 or more 6 1,397 871 526 25-49 19 955 607 348 10-24 61 1,380 955 425 5-9 47 479 332 147 Under 5 24 83 70 13 Natural resources agencies Total 21 271 164 107 10-24 8 154 107 47 5-9 4 38 29 9 Under 5 9 79 28 51 Tribal Law Enforcement, 2008 17 11 of the 25 largest tribal law enforcement agencies served jurisdictions of more than 1,000 square miles The 25 largest tribally operated agencies employed at least 25 full- time sworn personnel. The largest agency, the Navajo Police Department, employed 393 full-time officers to serve tribal lands in Arizona, New Mexico, and Utah (table 2.2). The next largest were the Seminole Police Department (Florida) with 144 officers, and the Salt River Police Department (Arizona) with 125 officers. The BIA service population for the 25 largest agencies ranged from less than 1,000 to about 200,000 residents. Although not all reservations are open to the public, many tribal law enforcement agencies deal with a significant number of daily visitors in addition to the resident population. The natural resources of tribal lands attract visitors, as do conference facilities and casinos. All of the 25 largest agencies had at least one casino operating within their jurisdictional area. The amount of land area served by a tribal law enforcement agency can be quite large. For example, the Navajo Police Department has jurisdiction over about 22,000 square miles, a larger land area than any county in the continental United States. Ten other agencies among the 25 largest had jurisdictional areas exceeding 1,000 square miles, a larger land area than any city in the continental United States. Table 2.2 The 25 largest tribally operated law enforcement agencies, by the number of full-time sworn personnel, 2008 Name and location of agency Number of full-time sworn personnel BIA service population, 2005 Full-time sworn personnel per 1,000 residents Reservation land area (square miles) Full-time sworn personnel per 25 square miles Navajo Police Department (AZ, NM, UT) 393 192,067 2.0 22,174 0.4 Seminole Police Department (FL) 144 3,165 45.5 141 25.5 Salt River Police Department (AZ) 125 7,313 17.1 81 38.6 Gila River Indian Community Police Department (AZ) 93 14,966 6.2 584 4.0 Tohono O’odham Police Department (AZ) 66 26,673 2.5 4,453 0.4 Choctaw Police Department (MS) 50 8,313 6.0 25 50.0 Oglala Sioux Tribe Department of Public Safety (SD) 49 43,146 1.1 3,159 0.4 Cherokee Indian Police Department (NC) 45 13,562 3.3 83 13.6 Muscogee (Creek) Nation Lighthorse Tribal Police (OK) 39 55,817 0.7 4,648 0.2 Miccosukee Police Department (FL) 36 589 61.1 128 7.0 Poarch Creek Tribal Police Department (AL) 33 1,567 21.1 0.4 -- Cherokee Nation Marshal Service (OK) 32 197,684 0.2 6,702 0.1 Choctaw Nation Tribal Police Department (OK) 32 99,371 0.3 10,613 0.1 Colville Tribal Police Department (WA) 32 5,052 6.3 2,117 0.4 Saginaw Chippewa Tribal Police Department (MI) 30 1,799 16.7 218 3.4 Tulalip Tribal Police Services (WA) 30 2,869 10.5 35 21.4 Warm Springs Tribal Police Department (OR) 30 4,079 7.4 1,011 0.7 White Mountain Apache Police Department (AZ) 30 12,213 2.5 2,628 0.3 Isleta Police Department (NM) 29 3,980 7.3 331 2.2 Yakama Nation Tribal Police Department (WA) 28 16,815 1.7 2,153 0.3 Pascua Yaqui Tribal Police Department (AZ) 27 14,787 1.8 2 -- Puyallup Tribal Police Department (WA) 27 24,016 1.1 29 23.3 Rosebud Sioux Tribal Police Department (SD) 27 22,293 1.2 1,388 0.5 Red Lake Tribal Police Department (MN) 26 10,338 2.5 880 0.7 Oneida Indian Nation Police (NY) 25 650 38.5 0.1 -- Note: Land area data are from the U.S. Census Bureau, and include reservation land only. --Reservation land area is less than 25 square miles. Compendium of Tribal Crime Data, 201118 Tribal law enforcement agencies were responsible for a broad range of services and functions during 2008 Nearly all general purpose tribal police departments were responsible for traditional law enforcement functions, such as routine patrol (100%), responding to citizen requests for service (100%), special events and crowd control (98%), criminal investigation (96%), and traffic enforcement (96%) (figure 2.2). About 4 in 5 departments were responsible for parking enforcement (80%), and about 2 in 3 departments dispatched calls for service (66%). About 3 in 5 general purpose tribal police departments had full-time community policing officers A majority of tribal police departments used a community policing approach in their efforts to prevent crime and maintain partnerships with the communities they serve. About three-fifths (59%) of departments had full-time sworn personnel serving as community policing officers (table 2.3). As of September 2008, about 500 tribal police officers were designated as community policing officers. In 2000, 73% of tribal agencies reported using community policing officers, with about 700 designated as such. For more than a third (36%) of tribal police departments, community policing efforts extended into the schools, with 82 full-time sworn personnel assigned as school resource officers. Although the percentage of departments using school resource officers in 2008 was about the same as in 2000 (37%), the total number of officers was about half of 2000 levels. Nearly all tribal police departments performed a variety of court-related functions In addition to law enforcement duties, nearly all tribal police departments were responsible for a variety of court-related functions (figure 2.3). The most common functions were executing arrest warrants (95%), enforcing protection orders (92%), serving process (89%), apprehending fugitives (88%), and providing court security (75%). Table 2.3 Use of community policing and school resource officers by tribal police departments, 2000 and 2008 2000 2008 Community policing officers Percent of agencies using 73% 59% Number of officers 714 503 School resource officers Percent of agencies using 37% 36% Number of officers 162 82 0 20 40 60 80 100 Percent of agencies Dispatching calls Parking enforcement Accident investigation Crime investigation Tra�c law enforcement Special events/crowd control Responding to calls for service Routine patrol Type of function Figure 2.2 Selected law enforcement functions performed by tribal police departments, 2008 Figure 2.3 Selected court-related functions performed by tribal police departments, 2008 0 20 40 60 80 100 Percent of agencies Type of function Enforcing child support orders Serving eviction notices Inmate transport Court security Apprehension of fugitives Serving process Enforcing protection orders Executing arrest warrants Tribal Law Enforcement, 2008 19 Nearly half of tribal police departments were responsible for search and rescue operations Nearly 9 in 10 tribal police departments performed one or more special public safety functions, the most common being emergency management (65%) and animal control (64%) (figure 2.4). About a third (31%) provided emergency medical services. Nearly a fifth provided fire services (19%) and school crossing services (18%). More than half (58%) of tribal police departments performed at least one specialized function, such as search and rescue (43%), tactical operations (26%), or underwater recovery (10%). About 1 in 6 agencies operated at least one jail (17%), and about 1 in 10 agencies operated an overnight lockup facility separate from a jail (10%). (For more information, see Jails in Indian County, 2009, BJS Web, February 2011.) The 21 special jurisdiction agencies, whose primary focus was the enforcement of natural resources laws, performed a variety of functions as well. In addition to providing patrol and response services, a majority of these agencies performed the following functions: criminal investigation (82%), search and rescue (71%), apprehension of fugitives (59%), animal control (59%), traffic enforcement (59%), and dispatching calls for service (53%) (not shown in figure). About two-thirds of general purpose tribal police departments participated in a multiagency drug task force About 4 in 5 (78%) tribal police departments partnered with federal, state, and local agencies in multiagency task forces to combat crime problems in Indian country during 2008. These task forces allow participating agencies to share in pooled resources, information, and expertise across jurisdictional boundaries. Tribal police departments were most likely to participate in task forces formed to combat drug trafficking (66% of agencies) (figure 2.5). About 2 in 5 (41%) departments participated in multiagency gang task forces, and about a third (32%) participated in violent crime task forces. Smaller percentages of tribal police departments participated in anti- terrorism (17%) or human trafficking (9%) task forces. 0 20 40 60 80 Percent of agencies Jail operation School crossing services Fire services Tactical operations (SWAT) Emergency medical services Search and rescue Animal control Emergency management Type of function Figure 2.4 Selected special functions performed by tribal police departments, 2008 0 20 40 60 80 Percent of agencies Human tra�cking Anti- terrorism Violent crime GangsDrug tra�cking One or more types Type of function Figure 2.5 Task force participation of tribal police departments, 2008 Compendium of Tribal Crime Data, 201120 Methodology The Bureau of Justice Statistics’ (BJS) Census of State and Local Law Enforcement Agencies (CSLLEA) is conducted every 4 years to provide a complete enumeration of agencies and their employees. Employment data are reported for sworn and nonsworn personnel and, within these categories, by full-time or part- time status. Agencies also complete a checklist of functions they regularly perform, or for which they have primary responsibility. The CSLLEA provides national data on the number of state and local law enforcement agencies and employees for general purpose local police departments (including tribal agencies), sheriffs’ offices, the primary state law enforcement agencies, and special jurisdiction (e.g., natural resources) agencies. It also serves as the sampling frame for BJS surveys of law enforcement agencies. The 2008 CSLLEA form was mailed to approximately 20,000 agencies that were determined to potentially be operating on the reference date of September 30, 2008. This master list was created by compiling information from the following sources: � the 2004 CSLLEA � lists provided by Peace Officer Standards and Training offices, and other state agencies � an FBI list of agencies requesting new identifiers since the 2004 CSLLEA. Responding agencies were screened for eligibility and were excluded if any of the following conditions existed on the CSLLEA reference date of September 30, 2008: � The agency employed only part-time officers, and the total combined hours worked for these officers averaged less than 35 hours per week. � The agency contracted or outsourced to another agency for performance of all services. � The agency was closed, a duplicate listing, or otherwise an invalid entry on the master list. � The agency did not employ personnel with general arrest powers. � The agency did not operate with funds from a state, local, special district, or tribal government. � All sworn officers volunteered their time on an unpaid basis. Data on number and type of personnel were obtained from all eligible tribal agencies. For general purpose tribal police departments, the item response rates were as follows: community policing and school resource officers, 100%; agency functions, 99%; task force participation, 99%; and operating budget, 87%. References American Indians and Crime, NCJ 173386, BJS Web, February 1999. American Indian Population and Labor Force Report, 2005, U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Services. Census of State and Local Law Enforcement Agencies, 2008, NCJ 233982, BJS Web, June 2011. Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. Indian Country Law Enforcement Review, U.S. Department of Justice, December 1999. Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011. Local Police Departments, 2007, NCJ 231174, BJS Web, December 2010. Policing on American Indian Reservations, U.S. Department of Justice, National Institute of Justice, NCJ 186185, September 2001. Tribal Law Enforcement, 2000, NCJ 197936, BJS Web, January 2003. State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 21 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 Steven W. Perry, Ron Malega, Ph.D., and Duren Banks, Ph.D., BJS Statisticians In 2007, 93 state court prosecutors’ offices reported jurisdiction under Public Law 83-280 (P.L. 280) for felonies committed in Indian country. Seventy-three percent of these offices prosecuted at least one felony case that arose from Indian country in 2007, including at least one offense that involved drugs (63%), domestic violence (60%), or aggravated assault (58%). This report presents selected findings from the Bureau of Justice Statistics’s (BJS) 2007 National Census of State Prosecutors. Criminal jurisdiction in Indian country is divided among federal, state, and tribal governments. Jurisdiction in a specific incident depends on the nature of the offense, whether the offender or victim was a tribal member, and the state in which the crime occurred. Crimes committed in Indian country are often subject to concurrent jurisdiction between multiple criminal justice agencies. The Major Crimes Act (18 U.S.C. § 1153), as amended, grants concurrent federal jurisdiction for 16 major crimes committed by Native Americans occurring in Indian country. State jurisdiction for crimes committed in Indian country is primarily provided for under P.L. 280. Tribal courts maintain concurrent jurisdiction when federal or state jurisdiction is applied. State prosecutors’ offices generally do not have jurisdiction over crimes committed in Indian country due to the sovereign status of federally recognized tribes in the United States. However, state prosecutors’ offices in 16 states may exercise jurisdiction over crimes committed on tribal lands under P.L. 280. This law established state jurisdiction over offenses committed by or against American Indians in Indian country, including federally recognized reservations, tribal communities, and identified trust lands. P.L. 280 is mandatory for 6 states and optional for 10 states. Highlights � Ninety-three state court prosecutors’ offices in the 16 P.L. 280 states reported jurisdiction for felonies committed in Indian country under P.L. 280. � Seventy-three percent of offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country. � Most offices in P.L. 280 states prosecuted at least one offense involving drugs (63%), domestic violence (60%), or aggravated assault (58%). � Eighteen offices in mandatory P.L. 280 states with jurisdiction for Indian country prosecuted at least one rape, and 12 offices prosecuted a homicide. � Of state prosecutors’ offices that reported jurisdiction for felony cases in Indian country under P.L. 280, 70% served judicial districts with populations of less than 100,000 residents. � Offices with jurisdiction for felony crimes committed in Indian country had an average operating budget of $5.2 million in 2007. Criminal jurisdic tion in I ndian countr y Tribal jurisdiction � Crimes committed by Native Americans in Indian country. Sentences are limited to a maximum 3-year sentence of incarceration per count and 9 years per case (124 U.S.C. 2258 § 234 (a) (b)). Federal jurisdiction � Pursuant to the Major Crimes Act of 1885. 18 U.S.C. § 1153 and subsequent amendments State jurisdiction � All crimes on tribal lands specified under Public Law 83-280. 18 U.S.C. § 1162 � Crimes committed on tribal lands in which neither the victim nor the offender is a tribal member. Note: Criminal jurisdiction in Indian country depends on several factors, including the identity of the defendant, victim, type of offense, and where the crime was committed. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234241 Compendium of Tribal Crime Data, 201122 According to the 2002 Census of Tribal Justice Agencies, 94 of the 123 responding tribes in mandatory P.L. 280 states relied on state courts. The 2002 Census was limited to American Indian tribes in the lower 48 states, so tribes in Alaska were excluded. The Census also found that 19 of 90 reporting tribes in optional P.L. 280 states relied on state courts (table 3.1). The federal government retains criminal jurisdiction for major crimes committed in Indian country in the remaining states where P.L. 280 does not apply. States retain jurisdiction for non-Indian crimes (those in which neither the offender nor the victim is a tribal member) committed in Indian country.* In 2007, 1,548 state court prosecutors’ offices were in states not affected by P.L. 280 and were excluded from this report. The 93 state prosecutors’ offices reporting jurisdiction under P.L. 280 in mandatory and optional states represent 14% of all state prosecutors’ offices in states affected by P.L. 280. Nearly all of these served districts that overlapped with or were adjacent to tribal lands (figure 3.1). Approximately a fifth of state prosecutors in mandatory P.L. 280 states reported jurisdiction for crimes committed in Indian country P.L. 280 gave select states legal jurisdiction over tribal members to prosecute crimes occurring on the reservation under existing state laws. These mandatory P.L. 280 states include California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and Alaska (table 3.2). *Some tribes have been affected by states that have received a federal mandate to exercise jurisdiction outside of P.L. 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts (Tribal Court Clearinghouse, 2010, www.tribal-institute.org/ lists/jurisdiction.htm). Table 3.1 Number of tribes participating in the Census of Tribal Justice Agencies in Indian Country, by P.L. 280 status, type of court systems, and state, 2002 Number of tribes using— Participating in census Tribal justice systems Indigenous courts CFR courtsa Tribal courts Relying on state courtsb Mandatory states 123 39 8 9 37 94 California 88 7 2 7 7 74 Minnesota 12 12 3 0 12 4 Nebraska 4 3 0 2 3 2 Oregon 8 8 1 0 8 6 Wisconsin 11 9 2 0 7 8 Optional states 90 80 13 11 74 19 Arizona 17 16 3 0 16 0 Florida 1 0 0 0 0 1 Idaho 4 4 1 0 4 1 Iowa 1 0 0 0 0 1 Montana 6 6 1 0 5 0 Nevada 16 14 1 4 13 6 North Dakota 3 3 0 0 3 0 South Dakota 9 9 0 2 9 0 Utah 4 2 0 2 2 2 Washington 29 26 7 3 22 8 Note: The 2002 Census of Tribal Justice Agencies was limited to American Indian tribes in the lower 48 states. Source: Table reproduced from Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, December 2005. aCourt of Federal Regulations (CFR) operated by the Bureau of Indian Affairs (BIA). bTribes that rely on state court for jusidical services (e.g., felony courts, court-ordered treatment, and child support enforcement). Table 3.2 State prosecutors’ offices with jurisdiction for crimes committed in Indian country, by P.L. 280 status and state, 2007 Number of offices— All prosecutors’ offices in P.L. 280 states* With jurisdiction for felony cases occurring in Indian country under P.L. 280 Prosecuting at least one felony case All P.L. 280 states 672 93 68 Mandatory states 294 56 47 Alaska 1 1 -- California 48 23 21 Minnesota 76 15 15 Nebraska 81 3 1 Oregon 31 7 4 Wisconsin 57 7 6 Optional states 378 37 21 Arizona 11 1 1 Florida 16 1 1 Idaho 34 6 4 Iowa 93 1 1 Montana 46 5 1 Nevada 15 2 0 North Dakota 43 2 1 South Dakota 58 1 1 Utah 26 3 2 Washington 36 15 9 Note: The 2007 Census of State Court Prosecutors included 2,330 offices, 66% (1,548) of which were located in states not affected by P.L. 280, and therefore were excluded from all analyses. --No information reported. *Excludes data missing for 110 offices. 23 M an da to ry P .L . 2 80 st at es Op tio na l P .L . 2 80 st at es In di an re se rv at io n (U .S . C en su s B ur ea u) Pr os ec ut or s’ o� ce s r ep or tin g ju ris di ct io n in In di an Co un try u nd er P .L . 2 80 Fi g u r e 3 .1 St at e p ro se cu to rs ’ o ffi ce s re p o rt in g ju ri sd ic ti o n in In d ia n c o u n tr y u n d er P .L . 2 80 , 2 00 7 N ot e: P ro se cu to rs ’ o ffi ce s i n no n- P.L . 2 80 st at es a re n ot sh ow n. So ur ce : B ur ea u of Ju st ic e St at ist ic s Compendium of Tribal Crime Data, 201124 In 2007, 19% of all state prosecutors’ offices in mandatory P.L. 280 states reported jurisdiction for felony cases occurring in Indian country. P.L. 280 permitted other states to acquire either complete or partial jurisdiction over crimes committed in Indian country at their option: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Ten percent of all prosecutors’ offices in optional P.L. 280 states reported jurisdiction for felony cases in Indian country in 2007. About three-quarters of offices with P.L. 280 jurisdiction prosecuted a felony case from Indian country in 2007 Sixty-eight of the 93 prosecutors’ offices with jurisdiction in Indian country reported prosecuting at least one felony case committed in Indian country in 2007. Forty-seven offices in mandatory P.L. 280 states reported prosecuting at least one offense committed in Indian country, and 21 offices in optional P.L. 280 states reported prosecuting at least one offense committed in Indian country in 2007. Most offices in mandatory P.L. 280 states with jurisdiction for felony offenses in Indian country also reported prosecuting at least one drug-related crime (42 of 56 offices), domestic violence offense (40), aggravated assault (38), parole or probation violation (31), or a crime involving sexual assault or sexual abuse (30) (figure 3.2). Offices in mandatory P.L. 280 states with jurisdiction for Indian country also reported prosecuting serious felony offenses, including 18 offices that prosecuted at least one rape committed in Indian country and 12 offices that prosecuted a homicide. Prosecutors’ offices with jurisdiction in Indian country had an average of 16 assistant prosecutors on staff The 2007 National Census of State Prosecutors collected operational and administrative information from state prosecutors’ offices, including budgets, staffing, and caseload. Offices reporting jurisdiction for crimes committed under P.L. 280 were not asked to disaggregate office resources or operations by whether they were directed toward crimes committed in Indian country or elsewhere in the judicial district. The census asked respondents to provide or estimate the total number of felony cases closed in 2007. The survey did not ask respondents to provide information on the number of cases that arose from crimes committed in Indian country. This section describes the entire operations of the state prosecutors’ offices reporting jurisdiction under P.L. 280, not operations specific to crimes committed in Indian country. Homicide Rape Robbery Sexual assault/abuse Parole/probation violation Aggravated assault Domestic violence Drug-related All felony cases prosecuted in Indian Country, under P.L. 280 Optional P.L. 280 Mandatory P.L. 280 Number of o�ces 47 21 42 17 40 16 38 16 31 15 30 10 21 8 18 5 12 4 Figure 3.2 State prosecutors’ offices reporting prosecution of specific crimes in Indian country, by P.L. 280 status, 2007 State Prosecutors’ Offices with Jurisdiction in Indian Country, 2007 25 Most (71) state prosecutors’ offices that reported jurisdiction for felony cases occurring in Indian country under P.L. 280 served judicial districts with populations of less than 100,000 residents or were part-time offices. In mandatory P.L. 280 states, 7 of the 56 offices with jurisdiction in Indian country served districts with 250,000 or more residents (table 3.3). Offices with jurisdiction for felony crimes committed in Indian country had an average 2007 budget of $5.2 million, or an expenditure of about $31 per district resident. The median budget was $722,000. The office staff included an average of 16 assistant prosecutors, 3 victim advocates, 4 legal services staff, and 19 support staff (table 3.4). Offices in mandatory P.L. 280 states reported an average of 61 total staff, including 19 assistant prosecutors, 8 investigators, and 22 support staff. Offices in optional P.L. 280 states reported an average of 38 total staff, 11 assistant prosecutors, 1 investigator, and 14 support staff. Offices in mandatory P.L. 280 states, reported closing a similar number of felony cases in 2007 compared to optional state offices. State prosecutors’ offices in optional P.L. 280 states closed 1,784 felony cases in 2007, while offices in mandatory P.L. 280 states closed 1,699 felony cases. Table 3.3 Type of state prosecutors’ offices reporting jurisdiction in Indian country, by P.L. 280 status, 2007 Total P.L. 280 Status Population served Mandatory Optional All offices 93 56 37 Full-time offices serving a judicial district with— 1 million or more residents 4 2 2 250,000 to 999,999 5 5 0 100,000 to 249,999 13 8 5 99,999 or fewer 65 37 28 Part-time offices* 6 4 2 *Part-time offices are defined as those that reported a part-time chief prosecutor in 2007. Table 3.4 Budget, staffing, and caseload of state prosecutors’ offices, by P.L. 280 status, 2007 Total P.L. 280 status Mandatory Optional Mean Median Mean Median Mean Median Total resident population served 156,495 28,893 177,407 28,965 124,846 28,606 Total operating budget $5,173,831 $722,208 $6,560,838 $735,735 $3,074,577 $670,000 Budget per resident population served $31 $26 $35 $27 $25 $24 Total staffa 51 12 61 12 38 12 Chief prosecutor 1 1 1 1 1 1 Assistant prosecutors 16 3 19 4 11 3 Civil prosecutors 2 0 1 0 4 1 Supervisors 2 1 2 0 2 1 Managers 1 0 1 0 0 0 Victim advocates 3 1 3 1 2 1 Legal services 4 0 3 0 4 1 Investigators 5 0 8 0 1 0 Support staff 19 3 22 4 14 3 Felony cases closedb 1,733 300 1,699 300 1,784 275 Note: Statistics include imputed data for some offices. Data were missing for 3 offices that did not provide total operating budget, 1 office that did not provide staffing information, and 6 offices that did not provide the number of felony cases closed. See Methodology for more information. aAll staff statistics are presented as full-time equivalent staff, calculated as the number of full-time staff plus 50% of the number of half time staff. bIncludes all cases charged as a felony that had a judgment of conviction, acquittal, or dismissal, with or without prejudice, entered by the court. Cases closed include all felony cases closed by the prosecutors’ offices and include an unknown number of cases committed in Indian country. Compendium of Tribal Crime Data, 201126 Methodology The 2007 National Census of State Court Prosecutors (NCSP-07) surveyed 2,330 chief prosecutors in the United States who handled felony cases in state courts of general jurisdiction. The census did not include municipal attorneys or county attorneys who primarily operate in courts of limited jurisdiction. This report describes characteristics of offices that reported jurisdiction for crimes committed in Indian country under P.L. 280 in 2007. Most (66%) state court prosecutors’ offices included in the 2007 census were in states not affected by P.L. 280 and are excluded from this report. The operational and administrative characteristics described in this report represent the functions of the entire office and are not restricted to those functions, staff, budget, or other resources specifically devoted to crimes committed in Indian country, unless otherwise noted. Data Imputations BJS relied on previously reported data and valid office characteristics to impute values for critical variables where missing. These critical variables, found in Table 3.4, include the total operating budget, total staff, full- or part-time status of chief prosecutor, number of assistant prosecutors, and number of felony cases closed. Critical variables that were missing in 2007 were imputed from the same office’s response to the 2001 Census of State Prosecutors wherever possible. For each jurisdiction with valid 2001 and 2007 data, an adjustment ratio was calculated as the ratio of the critical variable’s 2001 value to its 2007 value. All ratios greater than the 90th percentile were discarded for imputation purposes. For those offices missing 2007 data, a hot deck imputation procedure was employed to impute the adjustment ratio value from the office’s nearest neighbor in terms of state and population size. Where there were no suitable donors in the same state, a donor of similar population size was used. The 2001 data were then adjusted using the imputed adjustment ratio to create the imputed 2007 value for the critical variable where missing. This procedure was followed for 3 offices missing total operating budget, 1 office missing staffing information, and 6 offices missing the number of felony cases closed. Reference Census of Tribal Justice Agencies in Indian Country, 2002, NCJ 205332, BJS Web, `December 2005. Selected Findings: Jails in Indian Country, 2009 27 Selected Findings: Jails in Indian Country, 2009 Todd D. Minton, BJS Statistician At midyear 2009, a total of 2,176 inmates were confined in Indian country jails, a 1.9% increase from the 2,135 inmates confined at midyear 2008 (figure 4.1). This count was based on data from 80 facilities, including jails, confinement facilities, detention centers, and other correctional facilities, that were in operation in Indian country at midyear 2009. For 2008, the number of inmates was based on data for 82 facilities in operation at midyear 2008. The number of inmates held in Indian country jails between 2004 and 2009 increased by 25% from 1,745 inmates to 2,176. The number of jails in Indian country has increased between 2004 and 2009 The Bureau of Justice Statistics (BJS) collected data from 68 correctional facilities in Indian country in 2004, from 79 in 2007, 82 in 2008, and 80 in 2009. The survey was not conducted in 2005 and 2006. Over the 5-year period, a number of facilities closed and new facilities became operational. Eleven facilities permanently closed between 2004 and 2009, and a total of 21 facilities were newly Highlights � The number of inmates confined in Indian country jails increased by 1.9% between midyear 2008 and 2009, reaching 2,176 inmates. � Between June 2008 and June 2009, the average daily jail population in Indian country increased by 12%, and the percentage of occupied bed space increased from 64.2% to 73.5%. � Eleven jails (14% of all facilities) held 51% of inmates confined at midyear 2009. � During June 2009, the number of inmates admitted to Indian country jails (11,357) was about 5 times the size of the average daily population (2,124). � The expected average length of stay increased by a half day from 5.1 days during June 2008 to 5.6 days during June 2009. � Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. � Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. � Indian country jails held fewer inmates for domestic violence at midyear 2009 (252), continuing the downward trend in the number held for this offense since 2007 (362). � The percentage of certified correctional officers working in Indian country jails increased steadily, from 63% at midyear 2007 to 79% at midyear 2009. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 232223 0 400 800 1,200 1,600 2,000 2,400 Number of inmates 20092008200720042003200220012000 At midyear Figure 4.1 Inmates confined in Indian country jails, midyear 2000-2004 and 2007-2009 Note: The Survey of Jails in Indian Country was not conducted in 2005 and 2006. Midyear count is the number of inmates held on the last weekday in June. Compendium of Tribal Crime Data, 201128 constructed. BJS estimated inmate population counts for 7 facilities in 2004 and 4 facilities in 2007 that did not respond to the surveys. All known operating facilities responded to the 2008 and 2009 surveys. (See Methodology for additional details on facility counts and participation in the surveys.) (See Methodology in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2010, for additional details on facility counts and participation in the surveys.) On an average day in June, the percentage of occupied bed space increased from 64.2% to 73.5% At midyear 2009, the 80 jail facilities in Indian country were rated to hold 2,891 inmates, down from 2,963 in 82 facilities during the same period in 2008 (table 4.1). The average daily population (ADP) in June—the population measure used to calculate percent of capacity occupied—increased by nearly 12%, from 1,903 inmates (June 2008) to 2,124 (June 2009), while the capacity to hold inmates decreased by 2%. Consequently, the percentage of rated capacity occupied in Indian country jails increased from 64% to 73% during the period. On June 30, 2009, the 80 facilities held a total of 2,176 inmates and were operating at 75% of rated capacity, remaining relatively stable since 2007. From June 2004 to June 2009, the overall number of beds (or rated capacity) grew at a faster rate (34%) than the the inmate population (25%). Small number of jails held more than half of the inmate population Eleven jails held more than half (51%) of the total inmate population at midyear 2009 (table 4.2). Between midyear 2008 and midyear 2009, the population in these jails increased by 247 inmates (29%). In 2008, 9 of the 11 facilities held the majority of jail inmates in Indian country. Over the 365-day period, 6 jails that held the majority of inmates in Indian country in 2008 experienced large declines in their jail populations. The combined decrease in the size of the jail population in these facilities was 33% (90 inmates) from midyear 2008 to midyear 2009. Among the 11 facilities holding the majority of inmates in 2009, the Gila River Department of Rehabilitation and Supervision - Adult facility reported the largest decline (30 inmates or 17%) in the number of jail inmates. The jail population in this facility has decreased by 92 inmates (38%) from its peak of 241 inmates reported at midyear 2007. Table 4.1 Inmates, rated capacity, and percent of capacity occupied in Indian country jails, 2004 and 2007–2009 2004 2007 2008 2009 Number of inmates Midyeara 1,745 2,163 2,135 2,176 ADPb 1,622 2,046 1,903 2,124 Rated capacity 2,162 2,900 2,963 2,891 Percent of capacity occupiedc Midyear 80.7% 74.6% 72.1% 75.3% ADP 75.0 70.6 64.2 73.5 Number of operating facilities 68 79 82 80 aMidyear count is the number of inmates held on the last weekday in June. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. Table 4.2 Jails in Indian country that held the majority of inmates in 2009 compared to 2008, by facility Custody population at midyear* Change in population Facility 2008 2009 Number Percent Total, 11 facilities 859 1,106 247 29% Tohono O’odham Adult Detention Center (AZ) 137 192 55 40% Gila River Department of Rehabilitation and Supervision - Adult (AZ) 179 149 -30 -17 San Carlos Department of Corrections and Rehabilitation - Adult and Juvenile Detention (AZ) 88 147 59 67 Truxton Canyon Adult Detention Center (AZ) 39 105 66 169 White Mountain Apache Detention Center (AZ) 101 95 -6 -6 Oglala Sioux Tribal Offenders Facility (SD) 52 95 43 83 Standing Rock Law Enforcement and Adult Detention Center (ND) 71 93 22 31 Nisqually Adult Corrections (WA) 59 73 14 24 Menominee Tribal Detention Facility (WI) 54 53 -1 -2 Navajo Department of Corrections - Shiprock Police Department and Adult Detention (NM) 46 52 6 13 Laguna Tribal Police and Detention Center (NM) 33 52 19 58 Note: Based on facilities that held the most inmates on June 30, 2009. *Midyear count is the number of inmates held on the last weekday in June. Selected Findings: Jails in Indian Country, 2009 29 Two facilities, the Truxton Canyon Adult Detention Center and the Laguna Tribal Police and Detention Center, were among the 11 facilities holding the majority of jail inmates in 2009. These 2 facilities were not among the 11 facilities holding the majority of inmates in 2008. (See Jails in Indian Country, 2008, BJS Web, December 2008.) The Truxton Canyon Adult Detention Center reported the largest increase in the inmate population (66 inmates or 169%) between midyear 2008 and midyear 2009. The Laguna Tribal Police and Detention Center increased by 58% (19 inmates) between 2008 and 2009. Based on the 80 facilities responding to the survey in both 2008 and 2009, the overall change in the inmate population (up 45 inmates) was relatively small. Thirty-three facilities, which were mostly the larger facilities, accounted for this increase (not shown in table). Change in the size of the jail population in Indian country was varied. More than half of the 80 jails experienced either a decline (40 jails) or no change (7 jails) in the size of their inmate population over the 12-month period ending midyear 2009. Overall, the 50% increase (415 inmates) in the jail population in 33 jails was offset by a 30% decline (370 inmates) in 40 jails. The use of jail space varied by facility size Indian country jails rated to hold 25 to 49 inmates were operating at 89% of their rated capacity on June 30, 2009, and at 79% on an average day in June. An average day in June was based on the ADP, or the sum of the numbers held on each day in June divided by 30. In contrast, the lowest percentage of capacity occupied during June 2009 was among the 11 small jails rated to hold fewer than 10 inmates. These facilities were operating at 21% of rated capacity at midyear and at 17% of capacity on an average day in June 2009 (figure 4.2). Compared to facilities in all other size categories, the large jails with a rated capacity of 50 or more inmates reported the only increase in occupied bed space between 2008 and 2009. The percentage of capacity occupied in these jails increased from 51% to 69% during the 12 months ending at midyear 2009, and from 49% to 73% on an average day in June 2008 and 2009. The amount of bed space occupied was also measured based on a facility’s most crowded day in June. Nearly half (38 facilities) of the 80 facilities in Indian country were operating above rated capacity on the most crowded day in June (table 4.3). Of those Table 4.3 Number of Indian country jails, by percent of rated capacity occupied, June 2009 Number of jails Percent of capacity occupieda Midyearb ADPc Peakd Less than 25% 17 20 7 25-49% 15 11 8 50-74% 19 21 15 75-100% 11 15 12 More than 100% 18 13 38 aPopulation as a percent of capacity occupied is calculated by dividing the population count of a facility by its rated capacity and multiplying by 100. bMidyear count is the number of inmates held on the last weekday in June. cAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. dPeak population is the population held on the day in June in which the custody population of a facility was the largest. 0 20 40 60 80 100 120 140 Peak 50 or more25 to 4910 to 24Fewer than 10 inmatesTotal Percent of capacity occupied ADP Midyear Figure 4.2 Rated capacity occupied, by type of inmate count, June 2009 Note: Rated capacity is the maximum number of beds or inmates assigned by a rating official. Midyear count is the number of inmates held on the last weekday in June. Average daily population (ADP) is the sum of the number of inmates held on each day in June divided by 30. Peak population is the population held on the day in June in which the custody population of a facility was the largest. Compendium of Tribal Crime Data, 201130 facilities, 18 were operating above rated capacity on June 30, and 13 were operating above rated capacity on an average day during June 2009. High volumes of admissions of inmates were processed through Indian country jails Eighty Indian country jails admitted 11,357 persons during June 2009, up slightly from 11,149 admissions in 81 facilities during June 2008 (table 4.4). The number of admissions grew by 1.6% in the 79 facilities that reported data on admissions in both June 2009 (11,323) and June 2008 (11,147) (not shown in table). Admissions to facilities rated to hold between 25 to 49 inmates accounted for about 48% (5,503) of all admissions in June 2009, down from 59% of all admissions in June 2008. The largest Indian country jails accounted for less than 20% of all facilities and reported a total increase of nearly 75% in the number of jail admissions during the 12-month period. Admissions to the largest Indian country jails increased from 1,915 inmates to 3,342 from June 2008 to June 2009. The 15 jails rated to hold 50 or more inmates had the highest average number of admissions per month (233), compared to jails in all other size categories (not shown in table). Inmate deaths and attempted suicides in Indian country jails declined Indian country jail authorities reported no deaths in custody between July 1, 2008, and June 30, 2009, down from 4 reported deaths during the 12-month period ending June 30, 2008. Attempted suicides by inmates declined from 78 in 2008 to 56 in 2009. Expected length of stay was 5.6 days for Indian country jail inmates in June 2009 During June 2009, the expected average length of stay for inmates confined in Indian country jails was 5.6 days, up from 5.1 days during June 2008. Length of stay is the time held in custody from admission to release. The expected length of stay for inmates was the highest (9.1 days) Table 4.4 Admissions and expected length of stay in Indian country jails during June, by facility size, June 2009 Facility sizea Number of facilities ADPb Estimated June admissions Expected average length of stayc Total 80 2,124 11,357 5.6 days Fewer than 10 inmates 11 9 133 2.1 10 to 24 24 276 2,379 3.5 25 to 49 30 820 5,503 4.5 50 or more 15 1,018 3,342 9.1 Note: Detail may not sum to total due to rounding. aBased on the rated capacity, the maximum number of beds or inmates assigned by a rating official. bAverage daily population (ADP) is the sum of the number of inmates held on each day in June, divided by 30. cExpected length of stay was calculated by dividing the average daily population (ADP) by the number of June admissions, and multiplying by 30. See Methodology in Jails in Indian Country, 2009 for details on estimating expected length of stay. Selected Findings: Jails in Indian Country, 2009 31 Table 4.5 Number of inmates confined in Indian country jails, by demographic characteristic, conviction status, and offense, midyear 2002, 2004, and 2007–2009 Number of inmates held at midyeara Percent of inmates held at midyear Characteristic 2000 2002 2004 2007 2008 2009 2000 2002 2004 2007 2008 2009 Total 1,775 2,006 1,745 1,996 2,135 2,176 100% 100% 100% 100% 100% 100% Sex Male 1,421 1,618 1,346 1,582 1,678 1,754 80% 81% 77% 79% 79% 81% Female 354 388 398 414 457 422 20 19 23 21 21 19 Age group/sex Adults 1,498 1,699 1,546 1,743 1,882 1,919 84% 85% 89% 87% 88% 88% Male 1,214 1,399 1,222 1,415 1,498 1,571 68 70 70 71 70 72 Female 284 300 324 328 384 348 16 15 19 16 18 16 Juveniles 277 307 198 253 253 257 16 15 11 13 12 12 Male 207 219 124 167 180 183 12 11 7 8 8 8 Female 70 88 74 86 73 74 4 4 4 4 3 3 Conviction status Convicted 1,072 1,120 966 1,116 1,340 1,496 61% 57% 58% 59% 63% 69% Unconvicted 689 857 697 763 776 680 39 43 42 41 37 31 Type of offense Domestic violence ... 291 257 362 307 252 ...% 15% 18% 20% 15% 12% Assault ... ... 190 233 308 299 ... ... 13 13 15 15 Rape or sexual assault ... ... 34 45 42 42 ... ... 2 2 2 2 Other violence ... ... 79 108 177 168 ... ... 6 6 9 8 DWI/DUIb 274 226 195 137 184 229 17 11 14 8 9 11 Drug law violation 133 126 104 132 104 107 8 6 7 7 5 5 Other ... ... 569 804 954 955 ... ... 40 44 46 47 Offense not reported ... ... 317 175 59 124 / / / / / / Note: Detailed characteristics may not be equal to the total number of confined inmates because of incomplete data. See appendix tables 1-3 in Jails in Indian Country, 2009, NCJ 232223, BJS Web, February 2011, for a list of all facilities and inmate characteristics. aMidyear count is the number of inmates held on the last weekday in June. bIncludes driving while intoxicated and driving while under the influence of drugs or alcohol. ...Not collected. /Not reported. in facilities that were rated to hold 50 or more inmates, down from 10.3 days in June 2008. Inmates held in jails rated to hold less than 10 inmates experienced the shortest expected length of stay (2.1 days). Inmate characteristics remain relatively unchanged; the number held for domestic violence declined Inmate characteristics by sex, age, and offense have changed in absolute numbers since 2000 (table 4.5). However, the distribution within most categories remained stable between 2000 and 2008, with a change in the distribution of inmates by sex, conviction status, and offense type at midyear 2009. Adult males accounted for the largest portion of the inmate population in Indian country jails during the decade. The female jail population had small but steady increases from midyear 2000 to 2008, with a nearly 8% decrease in the size of this population between midyear 2008 and midyear 2009. Except for one juvenile female inmate, the decline was entirely among the adult female jail population. The percentage of convicted inmates increased from 57% in 2002 to 69% in 2009. Inmates confined for a violent offense made up about 37% of the jail population at midyear 2009, down from 41% at midyear 2008. Most (75%) of this decline was among the population held for domestic violence. Domestic violence (12%) and simple or aggravated assault (15%) accounted for the largest percentage of violent offenders held in 2009, followed by unspecified violent offenses (8%) and rape or sexual assault (2%). Since peaking at midyear 2007, the percentage of inmates held for domestic violence has steadily declined, from 20% in 2007 to 12% in 2009. The Gila River Department of Rehabilitation and Supervision - Adult accounted for a large portion of the decline in domestic violence offenders between 2007 and 2009. Compendium of Tribal Crime Data, 201132 It reported a 38% decrease in the confined inmate population between midyear 2007 (241) and midyear 2009 (149), and a 74% decline in the number of inmates held for a domestic violence (from 180 inmates in 2007 to 46 in 2009). The number of certified correctional officers and in-service training steadily increased Seventy-nine Indian country jails employed 1,332 persons at midyear 2009 (table 4.6). About 69% (916) of all personnel were jail operations staff, including correctional officers and other staff who spent more than 50% of their time supervising inmates. The remaining 416 jail personnel included administrative employees, educational staff, technical or professional staff, clerical, maintenance, or food service staff, and other job functions. Overall, the ratio of inmates to jail operations employees was 2.4 inmates to 1 employee at midyear 2009, remaining relatively stable since 2008 (2.3 to 1) and 2004 (2.5 to 1). Seventy-six facilities reported that 710 (79%) correctional officers received basic detention officer certification, up from 69% in 2008 and 63% in 2007 (not shown). Seventy-four facilities reported that 750 (84%) correctional officers received 40 hours of in-service training, up from 74% in 2008 and 70% in 2007. Table 4.6 Persons employed in Indian country jails, by job function, midyear 2009 Job function Number Percent Totala 1,332 100% Administrativeb 136 10.2% Jail operations 916 68.8 Educational staff 29 2.2 Technical/professional 51 3.8 Clerical/maintenance/food service 173 13.0 Number of inmates per jail operations staff 2.4 aIncludes 27 other persons with unspecified functions not shown in table. bIncludes jail administrators, assistants, and other personnel who work in an administrative capacity more than 50% of the time. Selected Findings: Jails in Indian Country, 2009 33 Methodology The Annual Survey of Jails in Indian Country (SJIC) includes all known Indian country correctional facilities operated by tribal authorities or the Bureau of Indian Affairs (BIA), U.S. Department of the Interior. The survey was conducted in June 2009, and included the number of inmates and percent of capacity occupied based on the ADP, midyear population, and peak population in facilities in June 2009. (See table 10 in Jails in Indian Country, 2009, BJS Web, February 2011.) Through a cooperative agreement with the Bureau of Justice Statistics (BJS), Westat, Inc. conducted the SJIC to describe all adult and juvenile jail facilities and detention centers in Indian country. For this report, Indian country includes reservations, pueblos, rancherias, and other appropriate areas (18 U.S.C.§ 1151). The reference date for the survey is June 30, 2009. Annually, BIA provides BJS a list of Indian country jail facilities, including detention centers, jails, and other correctional facilities operated by tribal authorities or BIA. BJS uses this list to update its existing roster of jails in Indian country. BJS obtains data from administrators of Indian country jails by mailed questionnaires and through follow-up phone calls and facsimiles. In 2004, BJS contacted administrators in 70 facilities to participate in the survey. BJS received responses from 61 facilities; 7 did not respond, and 2 facilities were non-operational. In 2007, the BJS roster consisted of 86 facilities. Seventy-nine of the facility administrators responded to the survey; 4 did not respond, and BJS found that 3 facilities were non- operational. In 2008, BJS’s roster of Indian country jails consisted of 85 facilities. BJS received responses from 82 facility administrators; there were no nonrespondents, and 3 facilities were non-operational. For 2009, the BJS roster consisted of 86 facilities. BJS received responses from 80 facility administrators; there were no nonrespondents, and 6 facilities were non-operational. For comparison over time, BJS estimated data on inmate populations for the 7 facilities in 2004 and 4 facilities in 2008 that did not respond to the surveys. Expected length of stay The stock-flow ratio method was used to measure the expected average length of stay for inmates held during June 2009 in the 80 Indian country jails that responded to stock and flow items in the survey: Stock—average daily population Flow—inmate admissions during June 2009 Stock-flow ratio in June 2009 (2,124/11,357=0.187) Expected length of stay in days (0.187 × 30)—is the average number of days held in custody from admission to release. Indian country is a statutory term that includes all lands within an Indian reservation, dependent Indian communities, and Indian trust allotments (18 U.S.C. § 1151). Courts interpret Section 1151 to include all lands held in trust for tribes or their members. (See United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999).) Tribal authority to imprison American Indian offenders is limited to one year per offense by statute (25 U.S.C. § 1302), a $5,000 fine, or both. Tribal law enforcement agencies act as first responders to both felony and misdemeanor crimes. For most of Indian country, the federal government provides felony law enforcement concerning crimes by or against Indians. Certain areas of Indian country are under Public Law 83-280, as amended. P.L. 280 conferred jurisdiction on certain states over Indian country and suspended enforcement of the Major Crimes Act (18 U.S.C. § 1153) and the General Crimes Act (18 U.S.C. § 1152) in those areas. Indian tribes retain concurrent jurisdiction to enforce laws in Indian country where P.L. 280 applies. Compendium of Tribal Crime Data, 201134 Summary: Tribal Youth in the Federal Justice System 35 Summary: Tribal Youth in the Federal Justice System Mark Motivans, Ph.D., and Howard Snyder, Ph.D., BJS Statisticians The federal criminal justice response to tribal youth varies by the state in which the offense occurred, the nature of the offense, the availability of community- and confinement-based services, and discretionary decisions made by tribal, state, and federal justice agencies. Cases involving tribal youth in the federal system may result in 1) a delinquency adjudication and court-ordered supervision and out-of-home placement, or 2) the youth being transferred to adult status and prosecuted and sentenced as an adult. This summary describes the federal response to tribal youth during the case-processing stages from investigation to corrections. In this report, a federal juvenile delinquent is a person who has committed an offense while under age 18, and the federal prosecutor has certified a federal basis for jurisdiction. Juvenile and youth are used interchangeably in this report. The number of tribal youth in matters concluded by federal prosecutors and the total number of tribal youth prosecuted decreased from 2003 to 2008 (figure 5.1). Tribal youth in matters concluded by federal prosecutors dropped to 115 in 2008, down from 230 in 2003. Highlights � In 2008, relatively few juveniles were referred to federal prosecutors (315 out of 178,570 suspects) or admitted to federal prison jurisdiction (156 out 71,663 offenders). � Tribal youth (70) comprised nearly half of juveniles (152) handled by the federal courts in 2008. � Federal judicial districts of Arizona, Montana, South Dakota, New Mexico, and North Dakota accounted for 94% of tribal youth investigated, 92% of those prosecuted, and 88% of those admitted to federal prison jurisdiction in 2008. � In 2008, about 72% of tribal youth were investigated for violent offenses, including sexual abuse (35%), assault (20%), and murder (17%). � About 40% of matters involving tribal youth were declined by federal prosecutors in 2008. � A greater share of cases involving tribal youth in U.S. district courts were terminated by conviction (91%) than by dismissal (9%). � From 1994 to 2008, the lowest number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities occurred in 2008. � Admissions to federal prison jurisdiction among tribal youth declined 10% per year from 1999 to 2008, while non-tribal youth admissions declined 12% per year. � In 2008, tribal youth served an average of 26 months under federal jurisdiction, which was more than double the tribal justice system maximum sentence of 12 months. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics June 2011, NCJ 234218 Findings presented in this report are mostly from a recent study conducted by The Urban Institute under a cooperative agreement with the Bureau of Justice Statistics (BJS). The study was also sponsored by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). See page 43 for more information. Figure 5.1 Tribal youth in matters concluded and in matters prosecuted by U.S. attorneys, 2000–2008 Number of tribal youth Fiscal year 0 50 100 150 200 250 Suspects in matters prosecuted Suspects in matters concluded 200820072006200520042003200220012000 Source: Urban Institute analysis. See Methodology for more information. Compendium of Tribal Crime Data, 201136 Tracking tribal youth through the stages of the federal criminal case process The federal criminal justice system is not currently well- equipped to monitor how tribal juvenile offenders are processed across stages. There is a lack of unified, system-wide data standards in reporting how youth— especially tribal youth—are handled in the federal system. Juveniles or offenses committed in Indian country are not systematically tracked across the federal justice agencies. Researchers have to devise analytic methods to identify tribal youth using administrative data from each criminal justice stage (arrest, sentencing, and corrections). How is federal jurisdic tion over tribal juvenile delinquents determined? The determination of jurisdiction over offenses occurring in Indian country is first subject to whether state courts have jurisdiction based on Public Law 280 (P.L. 280).1 If a state has P. L. 280 status, jurisdiction over offenses occurring in Indian country lies with the state or tribal courts, not the federal courts. The determination of whether federal jurisdiction applies next depends on the offender and victim in the crime: � If the offender is a juvenile tribal member and the victim is also a tribal member, and the offense is 1 of 15 crimes covered by the Major Crimes Act then jurisdiction is with both the tribal and federal courts.2 � If the offender is a juvenile tribal member and the victim is a non-tribal member, and the crime is covered by the Major Crimes Act or federal enclave status, then federal and tribal courts have shared jurisdiction. The Assimilative Crimes Act permits state law to be applied in federal court where the Major Crimes Act does not apply but federal interest exists. � If the crime involves a non-tribal offender and a tribal member victim, then federal courts have exclusive jurisdiction. Once federal jurisdiction has been established, the Federal Juvenile Delinquency Act (FJDA) provides the procedures to bring the tribal youth to federal court. A federal juvenile delinquent is defined as a person who has committed an offense while less than 18 years old, but has not reached age 21 at sentencing. Juvenile and youth are used interchangeably in this report. How are juveniles handled in the federal justice system? Most juveniles, or persons under age 18, in the United States are handled in state or local courts, which have a separate juvenile justice system, rather than in the federal courts. Federal law permits handling of juveniles in the federal system only in limited circumstances. Apart from those committing crimes in Indian country or on military bases, juveniles that commit offenses as members of drug trafficking gangs, violent criminal gangs, or other federal offenses may be subject to federal jurisdiction. In these cases, the U.S. attorney for each district must certify to the district court that (1) the juvenile court or court of a state does not have jurisdiction or refuses to assume jurisdiction; 2) the state does not have available programs or services adequate for the needs of juveniles; or 3) the offense charged is a felony crime of violence or specified drug offenses, and there is substantial federal interest in the case. I n what circumstances are tribal and non- tribal juveniles transferred to adult status (for prosecution and sentencing as an adult rather than a juvenile delinquent)? Once federal jurisdiction has been determined and certification of delinquency established, a transfer hearing establishes the status of juveniles as to whether they will be transferred for prosecution as an adult. Felony crimes of violence or drug or firearm offenses trigger eligibility for adult transfer with certain age restrictions. Age thirteen is the minimum age for transfer to adult status for murder and assault, and for robbery, bank robbery, or aggravated sexual abuse with a firearm. An exception is crimes committed in Indian country where the tribe has opted not to permit prosecution of juveniles age 13 as adults. Age fifteen is the minimum age for transfer to adult status for committing any crime of violence (including physical force against a person or property). A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at age 18 if sentenced as an adult. BOP does not operate its own facilities for juveniles; rather, they contract with private entities and state and local governments for both secure and non-secure (community- based) juvenile facilities to house tribal and non-tribal youth under their jurisdiction. 1Congress passed Public Law 280 in 1953, which relinquishes the federal government of criminal and civil jurisdiction in certain states and places jurisdiction with those states. 2The Major Crimes Act provides federal jurisdiction over certain offenses committed by tribal members. (See Title 18 U.S.C. §§ 1152, 1153.) Summary: Tribal Youth in the Federal Justice System 37 Table 5.1 Reason for matters declined for prosecution with tribal youth suspects, 2005–2008 Reasons for declinations Fiscal year Matters concluded Number of declinations Case- relateda Suspect- relatedb No crime Referred to other authoritiesc OtherTotal 2005 172 69 100% 58% 10% 9% 13% 10% 2006 164 80 100% 61 10 10 13 6 2007 143 68 100% 47 15 10 18 10 2008 115 46 100% 50 7 15 20 8 aIncludes weak evidence, stale case, witness problems, or jurisdiction or venue problems. bIncludes age of offender and offender ‘s criminal history and drug/alcohol use. cIncludes pretrial alternative resolutions, such as pretrial diversion. Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Investigation and Prosecution Tribal police are often the first to respond to a crime in Indian country. Offenses committed by tribal youth may be investigated by a combination of tribal police and federal law enforcement agencies. The federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA) are the primary federal law enforcement agencies investigating tribal youth matters. Tribal youth commonly enter the federal justice system with an arrest for a warrant issued on either a complaint or juvenile information (written accusation made by the prosecutor). For serious offenses that may indicate a federal crime, the U.S. attorney’s office in the district is notified as is the juvenile’s parent/guardian. The juvenile must be taken before a U.S. magistrate as soon as possible, where charges are read and the juvenile is informed of rights. Federal prosecutors next determine if the matter should be adjudicated in federal courts, disposed by U.S. magistrate, or declined for prosecution. In 2008, 4 in 10 matters involving a tribal youth were declined by federal prosecutors During 2008, 40% of tribal youth in matters concluded were declined for further prosecution, which was lower than the 46% declination rate for non-tribal youth in 2008. However, the average declination rate for tribal youth (45%) was higher than for non- tribal youth (37%) from 2004 to 2008. The most common reason for declination of tribal youth matters in 2008 was case related (50%) (table 5.1). Case-related reasons included weak evidence, stale case, witness problems, and jurisdiction or venue problems (figure 5.2). Some declined matters involved tribal youth that were subsequently referred to other authorities for prosecution, such as to the tribe or the state where the tribe is located. The share of declinations for tribal youth that were referred to other authorities or received an alternative resolution increased from 13% of all declinations in 2005 to 20% in 2008. Among non-tribal youth, the most common reason for declination (71%) was that the suspect was a juvenile (not shown in table). Most tribal youth in matters referred to U.S. attorneys were prosecuted by federal prosecutors In 2008, 59% of tribal youth who were referred to federal prosecutors were prosecuted, which was higher than the 54% prosecution rate for non-tribal youth in 2008 (including matters disposed by U.S. magistrates). From 2004 to 2008, the averageprosecution rate for tribal youth (55%) was comparable to that of non-tribal youth (53%). Various factors go into the decision to prosecute a matter, including seriousness of the crime, strength of the evidence, youth’s criminal history and drug/alcohol use, tribal capacity to prosecute, and tribal preference. Tribes having concurrent jurisdiction with federal jurisdiction may have limitations on available secure placement options and treatment resources. The potential penalty that could be received if a matter was handled in tribal or state venues may also be considered.3 3The Indian Civil Rights Act (Title 25 U.S.C. § 1302(7)), for example, limited tribes in sentencing persons convicted of serious crimes to a maximum of 1 year in jail and a $5,000 fine. Recently, the Tribal Law and Order Act extended the maximum sentence that a tribe can impose to three years. Figure 5.2 Case-related reasons for matters declined for prosecution with tribal youth suspects, 2005–2008 Jurisdiction or venue problems Stale case Witness problems Weak evidence Percent of cases 77% 13% 8% 2% Source: Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS data base, fiscal years 2005–2008. Compendium of Tribal Crime Data, 201138 Nearly 9 of 10 tribal youth admitted to Federal Bureau of Prisons jurisdiction from 2006 to 2008 came from five federal judicial districts From 2006 to 2008, 85% of tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons (BOP) were from these five federal judicial districts: Arizona, Montana, New Mexico, North Dakota, and South Dakota (figure 5.3). The most recent tribal population data from the Bureau of Indian Affairs (2005) showed that these five districts contained 12% of the 590 federally recognized tribal entities and 35% of the more than 1.9 million total tribal enrollment population (table 5.2). Thirty-four percent of the enrolled tribal population under age 16 resided on or near reservations in these five federal judicial districts. Table 5.2 Federally recognized tribes and enrolled members, 2005 Tribal entities Tribal enrollment Tribal population under age 16 Federal judicial district Number Percent Number Percent District rank Number Percent of total enrollment District rank Total 590 100% 1,978,099 100% ~ 503,958 100% ~ Arizona 22 3.7% 269,778 13.6% 2 70,854 14.1% 2 New Mexico 25 4.2 174,199 8.8 3 43,234 8.6 4 South Dakota 8 1.4 115,513 5.8 5 27,534 5.5 6 Montana 8 1.4 66,962 3.4 6 14,957 3 9 North Dakota 6 1 58,220 2.9 8 13,851 2.7 10 All other districts 521 88.3 1,293,427 65.4 ~ 333,528 66.2 ~ ~Not available. Source: U.S. Department of the Interior, Bureau of Indian Affairs. American Indian Population and Labor Force Report, 2005, available at: http://www.bia.gov/ WhatWeDo/Knowledge/Reports/index.htm, calendar year 2005. 45–87 16–4416–44 1–151–15 0 District of Arizona (14%) District of New Mexico (12%) District of Montana (28%) District of North Dakota (4%) District of South Dakota (27%) Number of tribal youth admitted Figure 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of tribal youth, 2006–2008 Source: Bureau of Justice Statistics analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 39 Adjudication and Sentencing Federal statutes provide for a youth’s release pending trial to a parent/ guardian, unless it is determined that detention is necessary to ensure a timely appearance or to ensure safety of juveniles or others (Title 18 U.S.C. § 5034). The federal pretrial services agency oversees supervision of the youth on pretrial release. For juveniles detained, a foster home or community-based facility near the youth’s home community is sought. Pretrial juveniles are not to be detained in facilities permitting regular contact with adult offenders nor with other juveniles who have been adjudicated. In 2008, 91% of cases terminated in U.S. district court involving tribal youth resulted in conviction Most (91%) tribal youth cases terminated ended in conviction in 2008. Most of the convictions were the result of a guilty plea (88%) than a determination of guilt at trial (3%). In comparison, 95% of non-tribal youth were convicted in 2008, with 91% resulting from guilty pleas and 5% following trial. From 2004 to 2008, the average conviction rate for tribal youth (92%) was higher than for non- tribal youth (87%). In juvenile adjudication proceedings, the judge has the discretion to impose an out-of-home placement, probation and conditions of probation, or restitution. The youth may also be transferred to adult status and prosecuted and sentenced as an adult. An adjudicated juvenile can receive up to 3 years of probation. The duration of a sentence for youth adjudicated delinquent to the jurisdiction of federal prison authorities depends on the age of the juvenile at disposition (see text box below). Juveniles under the age of 18 are not allowed to be placed in an institution in which the youth has regular contact with incarcerated adults. A juvenile can be housed in a Federal Bureau of Prisons (BOP) institution at the age of 21 if sentenced as a juvenile. The maximum time under federal jurisdiction of juveniles adjudicated delinquent depends on the age at disposition � If a juvenile was under 18 years of age at time of disposition, detention may not extend beyond the juvenile reaching age 21 (figure 5.4). � If a juvenile was between the ages of 18 and 21 at time of disposition, the maximum federal jurisdiction is 5 years. � Juveniles adjudicated delinquent and under the age of 21 are not to be detained in facilities permitting regular contact with adult convicts. At age 21, however, an adjudicated delinquent can be placed in an adult facility. � The term that an adjudicated delinquent receives may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. Federal sentencing guidelines do not apply to adjudications of delinquency. 11 or younger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Maximum age in federal jurisdiction is 21 if age at disposition is under 18 years Age at disposition Maximum age of federal jurisdiction For disposition between ages 18 and 21, the maximum length of federal jurisdiction is 5 years Age of delinquent at disposition Figure 5.4 Maximum time under federal jurisdiction of juveniles adjudicated delinquent, by age at disposition Compendium of Tribal Crime Data, 201140 Corrections The number of tribal youth admitted to BOP jurisdiction increased from 107 in 1994 to a peak of 252 in 2000— a 136% increase due exclusively to the growth in tribal youth handled as adjudicated delinquents (figure 5.5). The number of tribal youth admitted to the BOP subsequently decreased from 252 in 2000 to 72 in 2008. In 2008, the number of tribal (72) and non-tribal youth (84) admitted to the jurisdiction of federal prison authorities was the lowest in the period from 1994 to 2008. From 1999 to 2008, the number of tribal youth admissions declined an annual average of 10%, and non-tribal admissions declined at an annual average of 12%. Tribal youth peaked at 252 admissions in 2000, and non- tribal youth peaked at 272 admissions in 1999 (figure 5.6). Most (88%) of the decline in tribal youth from 1999 to 2008 was due to a decrease in youth who had been adjudicated delinquent. Twelve percent of the decline was due to a decrease in tribal youth who had been transferred to adult status. In comparison, most of the decline for non-tribal youth admitted to the BOP over this period was comprised of juveniles who had been transferred to adult status. In 2008, 72% of tribal youth were admitted to BOP jurisdiction for a violent offense, including sexual abuse (29%), assault (25%), and murder (15%) (table 5.3). Tribal youth admitted for property offenses (mostly burglary) peaked in 2000 (66) and began to decline in 2001, dropping to 14 admissions in 2008. By 2008, tribal youth admitted to BOP jurisdiction for both property and violent offenses had declined to the lowest levels since 1999. Among non-tribal youth admitted to BOP jurisdiction, violent and drug offenses comprised the majority of offense types (not shown in table). Most tribal youth admitted to BOP jurisdiction from 1999 to 2008 had been adjudicated delinquent (83%), while most non-tribal youth had been prosecuted as adults (65%). 0 50 100 150 200 250 300 Tribal-transferred as adult Tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of tribal youth Fiscal year Figure 5.5 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. 0 50 100 150 200 250 300 Non-tribal-transferred as adult Non-tribal-adjudicated delinquent 200820072006200520042003200220012000199919981997199619951994 Number of non-tribal youth Fiscal year Figure 5.6 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, by status at admission, 1994–2008 Note: Data for fiscal years 1999–2008 based on Urban Institute analysis of Federal Bureau of Prisons, SENTRY database. Data for fiscal years 1994–1998 based on BJS analysis of SENTRY data. Summary: Tribal Youth in the Federal Justice System 41 At yearend 2003, 298 tribal youth were in BOP facilities, including both juvenile contract and adult facilities In 2003, 74% of tribal youth were housed under BOP jurisdiction in Minnesota, Arizona, Utah, the Western District of Texas, and Colorado. BOP facilities (including contract facilities) were not located in the states that contained large tribal populations and had committed a large number of Indian country juveniles (South Dakota, North Dakota, Montana, and New Mexico). For example, tribal youth whose legal residence was South Dakota comprised over half of the juveniles in BOP facilities in Minnesota. Among tribal youth under BOP jurisdiction in 2003, most were committed for a violent felony offense, including homicide, manslaughter, serious sexual assault or abuse, and serious physical assault. In comparison, 185 tribal juveniles were in custody in 10 juvenile tribal facilities in 2002. (See American Indians and Crime, BJS Web, December 2004.) These tribal youth were confined mostly for misdemeanor (62%) and status offenses (29%); 10% of the youth were confined in tribal juvenile facilities for felony offenses. Table 5.3 Tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, 1999–2008 Year of commitment to BOP jurisdiction Commitment offense Total 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Total 1,909 241 252 219 234 212 231 208 164 76 72 Murder/Negligent manslaughter* 218 31 27 25 18 20 24 26 20 16 11 Assault 491 44 65 70 57 52 64 52 49 20 18 Robbery 51 7 5 9 4 7 9 4 3 1 2 Sexual abuse 441 55 52 33 65 46 55 57 40 17 21 Embezzlement 1 1 0 0 0 0 0 0 0 0 0 Burglary 442 62 66 59 61 53 43 42 30 12 14 Larceny 56 12 7 5 8 4 4 6 6 2 2 Motor vehicle theft 8 2 1 1 0 1 0 1 2 0 0 Arson and explosives 69 2 6 3 5 11 17 9 6 7 3 Other property offenses 38 13 6 6 4 1 3 3 1 1 0 Other drug felonies 3 0 1 0 0 1 0 1 0 0 0 Weapon offenses 9 1 2 0 2 1 2 1 0 0 0 Nonviolent sex offenses 36 4 4 1 4 7 7 3 5 0 1 Traffic offenses 13 2 5 1 1 3 1 0 0 0 0 Note: Total includes juveniles whose offenses were missing or unclassifiable. *Includes attempted murder. Source: Urban Institute analysis of Federal Bureau of Prisons, SENTRY data base, fiscal years 1999-2008. Compendium of Tribal Crime Data, 201142 Tribal youth served a sentence in federal facilities that was twice as long as the maximum sentence tribal facilities can impose From 1999 to 2008, the average time served by tribal youth tended to be longer (about 26 months, on average) than the tribal justice system maximum sentence of 12 months. The Tribal Law and Order Act of 2010 recently extended the maximum a tribal court can sentence to 3 years for those courts meeting conditions placed on the legal process. The average time served by non-tribal youth in BOP facilities more than doubled from 15 months in 1999 to over 38 months by 2008. Non-tribal youth admitted to the federal prison authorities were somewhat more dispersed than tribal youth with respect to district of commitment About 32% of non-tribal youth were committed from the five federal districts that committed the most tribal youth. Thirty-six percent of non-tribal youth were committed to the BOP from five federal judicial districts along the U.S.-Mexico border: California-Southern, Arizona, New Mexico, Texas-Western, and Texas-Southern. (figure 5.7). Among juveniles admitted to the jurisdiction of the BOP in 2008, non- tribal youth were slightly older at age of offense than tribal youth The average of age tribal youth at time of offense was about 15 years compared to 16 years for non-tribal youth. Most tribal youth were male (92%), American Indian (96%), non- Hispanic (99%), and United States citizens (100%). The majority of non- tribal youth were male (93%), white (60%), non-Hispanic (58%), and United States citizens (71%). 26–6026–60 10–2510–25 1–91–9 00 Number of non-tribal youth admittedNumber of non-tribal youth admitted District of Arizona (19%) New Mexico (5%) District of Western Texas (7%) District of Eastern New York (4%)District of South Dakota (3%) Figure 5.7 Non-tribal youth admitted to the jurisdiction of the Federal Bureau of Prisons, and five federal judicial districts that committed the majority of non-tribal youth, 2006–2008 Source: Based on BJS analysis of data from the Federal Bureau of Prisons, SENTRY database, fiscal years 2006–2008. Summary: Tribal Youth in the Federal Justice System 43 Methodology The primary source of data presented in this report is from the Federal Justice Statistics Program (FJSP). The methodology to identify tribal youth was developed by the Urban Institute, and primary findings reported here are drawn from their 2011 study, Tribal Youth in the Federal Justice System (http://ncjrs.gov). This report supplemented findings from the Urban Institute’s study with additional analyses based on BJS analysis of FJSP data. Data from the Federal Bureau of Prisons (BOP), SENTRY database, which contains information on all federally sentenced offenders admitted to BOP jurisdiction at fiscal yearend were analyzed for the years 1994 to 1998. The source of the data in figure 5.1 is The Urban Institute analysis of Executive Office for U.S. Attorneys, National LIONS database, fiscal years 2000 to 2008. Suspects in matters concluded include all matters which were concluded in each respective year. Suspects in matters prosecuted include matters for which the U.S. attorneys in that district made the decision to prosecute the matter in each fiscal year. The unit of count for figure 5.1 is the suspect matter. A matter is a referral on which an attorney spends one hour or more investigating, and on which formal papers have not been filed with the Court. If a decision is made not to continue with the investigation, it is disposed of in the LIONS database by declination and closed. References American Indians and Crime, NCJ 203097, BJS Web, December 2004. 2005 American Indian Population and Labor Force Report. U.S. Department of the Interior, Bureau of Indian Affairs, 2005. The Urban Institute. Tribal Youth in the Federal Justice System, NCJ 234549, May 2011. Available at http://ncjrs.gov. Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system. They used a combination of qualitative and quantitative information, including administrative data from the BJS-sponsored Federal Justice Statistics Program (FJSP) and information drawn from interviews with more than three dozen federal and tribal justice system personnel. Staff at the Urban Institute who contributed to the study included— Co-principal Investigators William Adams and Julie Samuels Contextual Analysis Team Janeen Buck Willison Hannah Dodd Meredith Dank Quantitative Analysis Team Barbara Parthasarathy Kamala Mallik Kane Jessica Kelly Sybil Mendonca KiDeuk Kim Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods http://www.ojp.gov 
work_whrbpcplwfgg7ccxsbbw5yvfxq	----	Geogr. Helv., 75, 19–21, 2020 https://doi.org/10.5194/gh-75-19-2020 © Author(s) 2020. This work is distributed under the Creative Commons Attribution 4.0 License. su p p o rt e d b y B ook review Book review: Water justice Thomas Thaler Institut für Alpine Naturgefahren, Universität für Bodenkultur, Wien, Österreich Correspondence: Thomas Thaler (thomas.thaler@boku.ac.at) Published: 19 March 2020 Boelens, R., Perreault, T., and Vos, J.: Water Justice, Cambridge University Press, Cambridge, p. 392, ISBN 978- 1-107-17908-0, EUR 67.43, 2018. Wasser spielt eine wichtige Rolle in unserer Gesellschaft und deshalb waren und sind Fragen zur Ver- und Entsorgung, zu Gewässerschutz sowie des Zugangs zu Wasser immens wichtig und werden dementsprechend auch kontrovers dis- kutiert. Im Laufe der Geschichte wurden sie immer wieder neu formuliert und beantwortet. Diese existenziellen Fragen nach sauberem und trinkbarem Wasser, einer funktionieren- den Abwasserentsorgung sowie dem Schutz vor extremen hydrologischen Wetterereignissen, wie z.B. Hochwasser und Dürre, werden immer intensiv innerhalb der Gesellschaft dis- kutiert. Eine erhebliche Problematik betrifft das Eigentums- verhältnis. Soll oder darf die Versorgung öffentlich bzw. pri- vat organisiert werden? Das Streitgespräch, wie das wertvol- le Gut Wasser geregelt werden soll, sowie die Auseinander- setzungen, wer davon profitiert bzw. im Gegensatz dazu ver- liert, findet nicht erst mit der Ausbreitung des Neoliberalis- mus statt, wurde aber erst in den letzten Jahrzehnten in den wissenschaftlichen Diskussionen wiederentdeckt und stärker untersucht. Insbesondere die Debatte über einen fairen Zu- gang wurde innerhalb der wissenschaftlichen Auseinander- setzung im Bereich der Umweltgerechtigkeit (Environmental Justice), die ihren Ausgang in den Vereinigten Staaten von Amerika in den 1980er Jahren nahm, geführt. Die Thema- tik über das Recht auf sauberes Trinkwasser sowie das Recht auf Schutz vor Hochwasserereignissen wurde verstärkt dis- kutiert. Der Sammelband „Water Justice“, herausgegeben von Rutgerd Boelens, Tom Perreault und Jeroen Vos bei Cam- bridge University Press, greift die Frage nach einem ge- rechten Zugang zu Wasser und damit einhergehenden Kon- flikten auf, die vor allem durch die Herausforderungen des 21. Jahrhunderts und vor allem durch den Klimawandel ge- prägt sind. Es werden auch andere ökonomische und gesell- schaftliche Entwicklungen thematisiert, so z.B. Änderungen in der Landnutzung, wie die Entstehung von Megastädten global oder den Wandel innerhalb der Industrie, des Berg- baus sowie der Forst- und Landwirtschaft, der grundsätzlich zukünftig vermehrte Wassernutzung bedingen wird. Folglich werden zukünftig verstärkt bestimmte Personenkreise ihre Interessen auf die vorhandenen verfügbaren Oberflächen- und Grundwasserreserven beanspruchen. Der Band umfasst insgesamt 19 Kapitel, wo anhand von verschiedenen Beispielen rund um den Globus Wasserkon- flikte und das Verständnis von Wassergerechtigkeit aufge- zeigt werden. Diese beinhalten Exempel der städtischen Trinkwasserversorgung, die Ausschließung von Personen- gruppen zum Zugang von Grundwasserreserven, Hochwas- serschutz bzw. Verschmutzung der Wasserversorgung auf- grund von Schwerindustrie bzw. durch den Austritt von Quecksilber aus Bergwerken. Der Band beinhaltet unter- schiedliche kritische theoretische Konzepte aus der politi- schen Ökologie und kritischen Geografie, wie beispielsweise Konzepte der Hegemonie von Antonio Gramsci bzw. femi- nistische Arbeiten wie das Kapitel 18 von Lisa Bossenbro- ek und Margreet Zwarteveen, wo die Verteilung von Was- serreserven und -vorräten von ländlichen Gemeinden hin zu landwirtschaftlichen Exportprodukten aus der Sicht feminis- tischer Theoriearbeit untersucht wird. Anhand der Vielzahl unterschiedlicher Fallstudien aus dem Globalen Norden und Süden werden historische sowie zeitgenössische Konflikte und Gerechtigkeitskonzepte dargestellt. Der Sammelband wird in vier Themenschwerpunkte un- terteilt: (1) Re-Politisierung der Wasserversorgung (Kapi- tel 1 bis 5), (2) Gestaltung der Wasserinfrastruktur (Kapi- tel 6 bis 9), (3) Konflikte im Partizipationsprozess (Kapi- tel 10 bis 14), sowie (4) Diskurse und Imaginationen in der Gouvernementalität (Kapitel 15 bis 18). Der erste Schwerpunkt liegt auf der theoretischen Grund- lage der politischen Interventionen im Bereich der Wasser- Published by Copernicus Publications for the Geographisch-Ethnographische Gesellschaft Zürich & Association Suisse de Géographie. 20 T. Thaler: Book review: Water justice versorgung, wobei der Diskurs um die Wasserpolitik insbe- sondere in den vergangenen Jahren verstärkt in einem unpo- litischen Dialog geführt wurde. Vorrangig die Planung einer nachhaltigen Wasserpolitik beinhaltet zahlreiche Konflikte zwischen den konkurrierenden Vorstellungen und Ideen, wie man den Zugang, die Verteilung und den Schutz in der Was- serwirtschaft organisieren soll. Hier spielt auch die Frage nach der Deutung, wie Wassergerechtigkeit auszusehen hat, eine äußerst wichtige Rolle. Der zweite Abschnitt beschäftigt sich mit den Herausforderungen der Wassergerechtigkeit in Hinblick auf umstrittene Entwicklungsparadigmen und Fort- schrittsglauben in der Vergangenheit. Hierbei liegt der Fokus darauf, wie der Staat Markt und Ingenieurswissenschaft, Ein- griffe in die Wasserversorgung und Hochwasserschutz für die Gesellschaft nach deren Gesichtspunkt und Deutung gestal- tet. Der dritte Abschnitt befasst sich mit den Mechanismen, die angewandt werden, um gezielt bestimmte Menschen von Wasserkonflikten auszuschließen und welche Gegenmaßnah- men (u.a. durch gezielte Zusammenarbeit mit anderen Ak- teuren*innen) von den betroffenen Personengruppen getrof- fen werden, um wieder wahrgenommen zu werden in der Beanspruchung ihrer Rechte und Ziele um das Gut Wasser. Der vierte und letzte Abschnitt beschäftigt sich vorwiegend mit den aktuellen Diskursen, wie z.B. virtuelles Wasser oder Konflikte von kulturellen Identitäten, wie beispielsweise die kulturellen Erinnerungen der Menschen im Huanuni-Flusstal auf dem bolivianischen Altiplano, die massiv von Wasserver- schmutzungen durch den Bergbau betroffen sind, der nicht immer im Einklang mit dem Schutz der Wasserressource er- folgt war. In den vier Abschnitten dieses Sammelbands werden ins- gesamt fünf Konfliktfelder untersucht, nämlich die intensive Nutzung von Wasser in der Landwirtschaft, die im Rahmen des Land Grabbing in den letzten Jahren massiv zugenom- men hat. Die Folgen haben wiederum massive Auswirkun- gen auf die lokale Wasserversorgung (Water Grabbing), die dadurch die Konflikte zwischen der Agrarindustrie und den lokalen Familien massiv verschärft haben. Der zweite Kon- flikt beschäftigt sich mit der Wasserverschmutzung durch In- dustrie und Bergbau, wie im Beispiel von Flint, Michigan (Vereinigte Staaten von Amerika). Dort mussten einkom- mensschwächere Haushalte im Vergleich zur weißen Mittel- schicht unter massiven Wasserverschmutzungen leiden. Die dritte Problematik betrifft die Auswirkung der Errichtung von Wasserkraftwerken, die meist in ländlichen, peripheren Regionen unter der Prämisse der nachzuholenden Entwick- lung bzw. Rückständigkeit der lokalen Bevölkerung argu- mentiert wird, wie Beispiele aus der Türkei oder Guatema- la zeigen. Des Weiteren werden Konflikte im Hochwasser- schutz, die häufig zu einem unterschiedlichen Schutzniveau innerhalb der Gemeinde führen können, betrachtet. Ein vier- ter zentraler Konflikt besteht in den Herausforderungen mit der Umleitung von Wasser zwischen verschiedenen Wasse- reinzugsgebieten, ländlichen und städtischen Regionen bzw. innerhalb einer Stadt, die nicht nur zur ungleichen Verteilung führen kann, sondern auch eine massive Auswirkung auf das Ökosystem haben kann. Der letzte Schwerpunkt liegt auf der Privatisierung der Wasserver- und Abwasserentsorgung, wo informelle Siedlungen keine Möglichkeit zu sauberem Was- ser oder einem funktionierenden Abwassersystem haben, da die Gebühren für die Nutzung der lokalen Bevölkerung weit über ihrem durchschnittlichen Haushaltseinkommen liegen. Der Band stützt sich auf umfassende Ansätze der Um- weltgerechtigkeit aus der Perspektive der politischen Öko- logie, wo Wasser neben einer materiellen Funktion vor al- lem aus der Vorstellung der Gesellschaft definiert wird und sich dadurch die Konflikte das Wasser betreffend auch über die Jahrhunderte hinweg immer wieder verändert haben und neu formuliert werden mussten. Dabei ändert sich eben auch die Situation der Konflikte, da immer wieder neue Wett- bewerber bzw. Entwicklungen, wie z.B. die Industrialisie- rung der Forst- und Landwirtschaft, Siedlungsentwicklun- gen etc., um die Ressource Wasser kämpfen. Wassergerech- tigkeit schließt die Frage nach der Verteilung ein, berück- sichtigt aber auch Fragen der kulturellen Anerkennung und politischen Beteiligung. Hierbei ist ein wichtiger Punkt die Berücksichtigung der Betrachtungsweise des menschlichen Handelns auf das jeweilige Ökosystem in Hinblick auf des- sen sozio-politischen Rahmen. Die große Herausforderung besteht in einer Verbindung der sich stetig verändernden politischen Konzepte und Ide- en mit gesellschaftlichen Vorstellungen sowie technologi- schen Entwicklungen mit einer immer wieder sich ändern- den Wassergerechtigkeit. Sokrates bemerkte, dass im antiken Griechenland „sozial gerecht“ über die Machthaber definiert wurde: Was sie als gerecht empfanden, war gerecht. Dieses Verständnis veränderte sich immer wieder im Laufe der Ge- schichte – bis heute, wo Wassergerechtigkeit immer stärker in Zusammenhang mit der ungleichen Verteilung und Diskri- minierung von bestimmten Personengruppen gebracht wird. Durch die Vielzahl der unterschiedlichen Fallstudien und des empirischen Materials rund um den Globus zeigt der Band nicht nur sehr gut die Pluralität innerhalb des Diskur- ses, wie man eigentlich Wassergerechtigkeit definieren kann, sondern auch, was das Ziel wäre und wie das Ziel der Was- sergerechtigkeit zu erreichen ist. Dabei wird sehr gut dar- gestellt, dass es eben keine einheitliche Definition gibt und sich diese über die Jahrhunderte hinweg stetig geändert hat bzw. sich in der Zukunft ändern wird. Diese Entwicklung wird auch durch neue wissenschaftliche Fachgebiete und -kenntnisse sowie technologische Entwicklungen gestärkt, wie beispielsweise die aktuelle Debatte in der Klimapolitik im Zusammenhang mit extremen hydrologischen Wetterer- eignissen belegt. Darüber hinaus haben auch die politischen Diskussionen des Neoliberalismus in den letzten Jahren da- zu geführt, dass der Diskurs nach der Nutzung der Ressour- ce Wasser nicht mehr ausschließlich der öffentlichen Hand zugeschrieben wird, sondern eine verstärkte Debatte in der Marktwirtschaft ausgelöst hat; mit all seinen Konsequenzen, Herausforderungen und neuen Konfliktfeldern. Geogr. Helv., 75, 19–21, 2020 www.geogr-helv.net/75/19/2020/ T. Thaler: Book review: Water justice 21 Der Sammelband stellt einen wichtigen Ansatz zur Dis- kussion nach Wassergerechtigkeit und eine wichtige Lektüre für die Leser*innen dar, die sich mit den Herausforderungen der Wassergerechtigkeit beschäftigen, wobei insbesondere auch die Widersprüche und Lösungsideen und -vorschläge in diesem Themenfeld sehr gut aufgezeigt werden, da es keine One-Fits-All-Ergebnisse gibt. Dies wird vor allem im Hinblick auf die zukünftigen Auswirkungen des Klimawan- dels noch viel stärker diskutiert werden müssen. Der Band zeigt nicht nur, dass Konflikte um das Wasser allgegenwärtig sind, sondern auch sehr unterschiedlich sein können, womit auch die Forderungen nach einem gerechten Zugang, Was- serschutz und -verteilung sehr unterschiedlich gesehen, in- terpretiert und diskutiert werden können. www.geogr-helv.net/75/19/2020/ Geogr. Helv., 75, 19–21, 2020 
work_wicdgfwdy5cyxe3fpo7iytzdl4	----	266 BRITISH MEDICAL JOURNAL VOLUME 291 27 JULY 1985 Vegans Must take vitamin B12 supplements Other May need to improve egetarians their intakes of iron and protein - for example byeating plenty of legumes and nuts Cravings and aversions-At some stage in pregnancy most women experience a distortion of their usual range oflikes and dislikes offoods. Women may develop a nine month aversion to foods they usually like-for example, meat, fried foods, coffee, tea. Contrariwise and at the same time they may experience a craving for certain foods. These are often sweet foods, such as fruits and chocolate ice cream, but some remarkable non- foods-coal, soap, soil-have been recorded. Vegetarians who are pregnant may need extra dietary advice. There are several types of vegetarian. Those most at risk are vegans. It is essential for them to take a supplement ofvitamin B 12 for normal cerebral development ofthe fetus. Other lacto-ovo vegetarians, especially if they are prosperous and belong to a traditional vegetarian group, usually manage well enough but may want or need advice to optimise their protein and iron intakes. Legumes and nuts are an important part ofa balanced vegetarian diet. Professor A Stewart Truswell, MD, FRCP, is Boden professor of nutrition, University of Sydney. The second illustration is reproduced, by permission, from Taggart N, et al. BnrtishJournal ofNutrntion 1967;21:439-5 1; the third from Hytten F and Chamberlain G. ClinicalPhysiology in Obstetrics, published by Blackwell Scientific Publications; the sixth from Papoz L, etal, and the seventh from Naeye RL, both from Maternal Nutnrtion in Pregnancy: Eatingfor Two? edited by J Dobbing and published by Academic Press. Philosophical Medical Ethics Justice and allocation of medical resources RAANAN GILLON In my last article I indicated the wide range of issues concerning justice that are relevant to medical ethics. Even within the sphere of distributive justice the range is dauntingly broad. At one end of the range are what economists call microallocation decisions, of which the most dramatic deal with the allocation of scarce lifesaving resources such as haemodialysis between competing claimants. At the other end are macroallocation decisions taken at a governmental level on the division of the national "cake" between, for instance, health, other welfare, education, arts, and defence budgets. In between are varieties of what one might call mesoallocation decisions. These include decisions on how to distribute the allocated national health budget-the subject matter of the Black report,' which showed so clearly and so shockingly the statistical cor- relations throughout the nation between poverty and low social status on the one hand and adverse health outcomes on the other. (In doing so it also showed the inadequacy of assuming that overtly "health care" decisions are the only or even the most important ones in determining the nation's health.) They also include decisions on how to allocate medical resources at health authority level between the competing medical and other health care claims and decisions within a hospital on how to allocate between competing specialties and firms. More specific still are decisions for allocation among the different members of a hospital firm or health centre; and then come the microallocation decisions of each doctor or health worker distributing his or her available resources among particular patients. Although this range of decisions is exceedingly broad and disparate, all are based on some moral assessment ofhow competing Imperial Coliege of Science and Technology, London SW7 INA RAANAN GILLON, MB, MRCP, director, Imperial College health service, editor, Journal ofMedical Ethics, associate director, Institute of Medical Ethics claims can be fairly adjudicated. They are thus all explicitly or implicitly based on some theory of justice. Preliminary distinctions In the application of such a theory to problems of resource allocation it is worth making some preliminary distinctions. The first is between the formal and substantive contents of the theory. As I indicated in my last article, Aristotle's formal principle (equals should be treated equally, unequals unequally in proportion to the relevant inequality) and the impartiality and fairness it entails are widely accepted in different theories of justice whose substantive contents vary considerably. Among the substantive claims of a theory of justice (the function of which is fair adjudication between competing claims) it is important to distinguish its method for justifying itselfand dealing with competing claims for other theories of justice (for we know that such conflicting claims are likely to occur). That method itself should meet Aristotle's formal require- ments. A democratic voting structure, for example, affords a method of justly choosing between, among other things, the theories of justice preferred by different members of that democratic society. Finally, it is important to distinguish between the theory of justice itself and the equally important practicalities of applying it. Justice is not achieved simply by basing a scheme for resource allocation on a gcod theory of justice. Its decisions must be implemented. Given the wide agreement about Aristotle's formal theory it is worth noting that its acceptance, even before any substantive aspects of a theory of justice are agreed, has important practical implications for resource allocation. Firstly, it requires resource allocation decisions to be made on moral grounds and it rules out partiality and other arbitrary methods of allocation. For instance, neither doctors nor governments can decide that they prefer blondes or whites and justly allocate their resources accordingly, because o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 9 0 .2 6 6 o n 2 7 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ BRITISH MEDICAL JOURNAL VOLUME 291 whiteness and blondness are not morally relevant characteristics (for a way of justifying this conclusion which purports not to depend on prior intuitive determination of moral principles see Hare's paper on relevance2). Secondly, in requiring fairness and thus an element of mutual agreement about the principles for settling conflicts Aristotle's formal principle seems (and this is an empirical not a logical claim) to require implementation of that legal adage that not only must justice be done it must also be seen to be done. People being as they are, only thus is such agreement likely to be obtained and maintained, and only thus are the agreed principles likely to be implemented consistently and impartially as formally required. Accepting this would have important practical impli- cations for the way such decisions are taken. Which moral principles should take precedence? Once one turns to substantive theories of medical resource allocation-answers to the question "What are the relevant in- equalities that justify giving more to some and less to others?"-one meets the same sort of disagreement and complexity about which moral principles should take precedence (see bibliography) as one does with theories of justice generally. The main alternatives, however, are straightforward enough, as my 8 year old daughter briskly reminded me when I was getting into my usual tangle over these impossible questions. How should I choose one out of three dying people to have the only available lifesaving machine? "Well," she told me, sparing a minute or two from her television programme, "you could give it to the youngest because she'd live longer (welfare maximisation), or you could give it to the illest because she needs it most (medical need), or you could give it to the kindest because kind people deserve to be treated nicely (merit). No, you couldn't give it to the one you liked best (partiality), that wouldn't be fair." Nor, she decided, would "eenie meenie minee mo" (lottery) be fair because the one who needed it most, or the youngest, or the kindest might not get it. Nor did she (much to my surprise) think that the Queen should get it in preference to the poor man (social worth)-"because she's got so much already and the poor man hasn't." Of all the methods, her preferred one was to choose the illest because he needed it most-but, not surprisingly, she could not say why that was a better option than the others. Her list of options, however, is remarkably standard, and she joins many doctors in preferring medical need as the criterion of choice. Perhaps unexpectedly medical need correlates most obviously with the Marxist criterion for justice-"to each according to his need." (I should add that this criterion is not exclusively Marxist, that few doctors are Marxists, and that few would accept the first half of the Marxist slogan-"From each according to his ability.") Unfortunately, the concept of a need-as distinct from a desire, for example-is not at all clear.3 Furthermore, it is at least plausible to argue that assertion of needs entails assertion of implied value or values, in which case what are the implied values of the criterion of medical need? Prolongation of life, elimination of disease and attainment of health, and improved quality of life, in the sense of both reduction of suffering and enhancement of flourishing, are all candidates as values correlating to medical need but how are they to be chosen or ranked and what precisely do we mean by these terms? (Their complexities recall the World Health Organisation's definition of health as a state of complete physical, mental, and social wellbeing or the controversies over "sanctity of life," which I outlined in earlier articles.) Thus the apparently straightforward criterion of medical need, while it is undoubtedly a necessary criterion for just distribution of medical resources,4 in no way evades the need to make explicit the moral criteria it encompasses. Nor does it make any easier the choice between competing candidates agreed to be in medical need. Medical success as a criterion A related but by no means identical medical criterion is that of medical success. Medical resources should, it is often claimed, be allocated according to probability of medical success. This adds to the criterion of medical need one of efficiency and, like my daughter's criterion of maximal prolongation of life, corresponds roughly to the welfare maximising objective of utilitarian theories of justice. There are, of course, straightforward cases when the criterion is unproblematic: it would be absurd and wrong to give the only three available pints of a rare blood group to the patient with an incompatible group rather than to the patient with a compatible group. But the criterion of medical success is plagued by all the moral evaluative problems of medical need as well as by additional problems of how to determine medical success: what criteria are appropriate and how is success to be measured? (In this regard the economists' methods of comparing different techniques in terms of "quality adjusted life years" (QUALYs)5 seem to offer conventional methods of clinical trial considerable additional precision for comparative purposes.) The third plank of my daughter's analysis concerned merit and desert-save the life of the kindest because kind people deserve to be looked after. Other merit related criteria are forward looking rather than backward looking. A consultant physician would select "a man who would be able to continue regular work in suitable employment or a married woman with young children . . . in preference to an unemployed labourer with no fixed abode."6 A consultant in clinical renal physiology, also writing about selection for renal dialysis, believed that "[g]ainful employment in a well chosen occupation is necessary to achieve the best results; only the minority wish to live on charity"7 (even when the alternative is death?). More recently a man described as demented, intermittently violent, uncooperative, dirty, doubly incontinent, and with a tendency to expose himself and masturbate while being examined was taken off dialysis treatment "in the patient's best interests."'' How much were the patient's dementia and discomfort the reason for stopping treatment and how much his objectionable behaviour? How much, in general, should a patient's merits and demerits, personal and social, affect his being selected for livesaving medical treatment? Certainly in the medical triage of wartime return to combat duty has been an established medicomilitary criterion for treatment.' In peacetime, however, allocation of medical resources on the basis of a patient's non-medical merits is widely regarded as repugnant. How are we to account for such differing intuitions? And what about extreme cases such as Shackman's hypothetical choice between Fleming and Hitler, where only one of them could be treated?'0 A possible approach Given the fervent disagreement about which moral values should take priority in allocating medical resources it is hardly surprising that doctors on the whole tend to avoid the issue and try to concentrate on doing their best for their individual patients. Two methods of trying to cut the Gordian knot are notable. One commentator, in a different context, has argued that if not all who need scarce lifesaving resources can have them then none should." Two American theologians, Ramsey and Childress, have argued that once a preliminary assessment on broad medical suitability has been made allocation should be by randomisation, either by a lottery or on a first come first served system (with steps taken to ensure that people could not unfairly "use" the system by having inside knowledge).'2 13 I have not yet discovered an acceptable way to give consistent moral priority to any of these substantive criteria for allocation of scarce medical resources (and do not really expect to do so). Calabresi and Bobbitt plausibly suggest that societies tend to try to "limit the destructive impact of tragic choices between fundamental moral values by choosing to mix approaches over time."'4 Within such temporal cycles first one value and then another is emphasised, but "none can, for long, be abandoned." Be that as it may, it would be a mistake to suppose that either the possibility or the need for justice is undermined by such variability and disagreement about which fundamental moral value to abandon when, in a particular situation, not all can be retained. After all, justice is precisely a method for moral resolution of conflicting claims. Provided one or 27 JULY 1985 267 o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 9 0 .2 6 6 o n 2 7 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ 268 BRITISH MEDICAL JOURNAL VOLUME 291 27 JULY 1985 other fundamental moral value is given priority after due consider- ation of the different claims in the light of all of the agreed moral values and in accordance with the formal principle of justice then justice, it seems to me, is done. Thus if, in the context of allocating scarce medical resources, practical systems were set up for resolving conflicts about which value, in a particular case, should have priority, and if those systems took account of the fundamental moral values of respect for autonomy, beneficence, and non-maleficence, and if their deliber- ative structures incorporated Aristotle's formal principle of justice with its demands of formal equity, impartiality, and fairness then they would be just systems and their deliberations could be expected to yield just results despite (perhaps because of) the conflict within them. I doubt if better than that is achievable. Is less acceptable? References 1 Black DAK, Morris JN, Smith C, Townsend P, Davidson N. Inequalities in health: the Black report. Harmondsworth: Penguin, 1982. 2 Hare RM. Relevance. In: Goldman AI, Kim J, eds. Values and morals. Dordrecht: Reidel, 1978:73-90. 3 Daniels N. Health-care needs and distributive justice. Philosophy and Public Affairs 1981;10(2): 146-79. 4 Williams B. The idea of equality. In: Williams B, ed. Problems ofthe self. Cambridge: Cambridge University Press, 1973:230-49. 5 Williams A. The economic role of "health indicators." In: Teeling-Smith G, ed. Measuring the social benefits ofmedicine. London: Office of Health Economics, 1983:63-7. 6 Nabarro JDN. Who best to make the choice? BrMedJ 1%7;i:622. 7 Parsons FM. A true "doctor's dilemma." BrMedJ 1967;i:623. 8 Brahams D. When is discontinuation of dialysis justified? Lancet 1985;i: 176-7. 9 Winslow GR. Triage andjustice. Berkley: University of California Press, 1982:8. 10 Shackman R. Surgeon's point of view. BrMedJ 1%7;i:623-4. 1 I Cahn E, cited by Calabresi G, Bobbitt P. Tragic choices. New York: Norton, 1978:188, 234. 12 Ramsey P. The patient as person. 10th ed. New Haven: Yale University Press, 1979:239-75 passim. 13 Childress J. Who shall live when not all can live? Soundings: An Interdisciplinary Journal 1970;53(4):339-55. (Reprinted in: Gorovitz S, Macklin M, Jameton A, O'Connor J, Sherwin S, eds. Moral problems in medicine. 2nd ed. Englewood Cliffs: Prentice-Hall 1983:640-9. 14 Calabresi G, Bobbitt P. Tragic choices. New York: Norton, 1978:1%. Bibliography (See also cited references) Maxwell RJ. Health and wealth. Lexington: Lexington Books, 1981. Boyd KM, ed. The ethics ofresource allocation. Edinburgh: Edinburgh University Press, 1979. Campbell A. Medicine, health andjustice-the problem ofpriorities. Edinburgh: Churchill Livingstone, 1978. Wolstenholme GEW, O'Connor M, eds. Ethics in medical progress, with special reference to transplantation. London: Churchill, 1%6. Childress J. Priorities in biomedical ethics. Philadelphia: Westminster Press, 1981. Shelp E, ed. Justice and health care. Dordrecht: Reidel, 1980. Engelhardt HT. Shattuck lecture: allocating scarce medical resources and the availability of organ transplantation. N EnglJ Med 1984;311:66-71. Rescher N. The allocation of exotic medical lifesaving therapy. Ethics 1969;79(3):173-86. Parsons V, Lock P. Triage and the patient with renal failure.J MedEthics 1980;6:173-6. Klein R. Rationing health care. BrMedJ 1984;289:143-4. Mooney G. Medical ethics: an excuse for inefficiency? Journal ofMedical Ethics, 1984;10: 183-5. Dr Gillon's articles on philosophical medical ethics will resume later in the summer. Green College Lectures Contemporary challenges in education for the caring professions: education for nursing, midwifery, and health visiting JEAN McFARLANE Diversity of roles in nursing The "greater nursing profession" encompasses many roles as expressed in the Report of the Royai Commission on the National Health Service': "Within nursing there are many levels of skill and different roles.... Nursing is an imunensely varied profession. In hospitals, nurses work in acute, long stay, children's, psychiatric, maternity, and other specialised units. Outside hospital there are health visitors, home nurses, midwives, and nurses working in clinics and in general practice, as part of the primary health care team. Nurses work in administration in the NHS and health departments, in education and research, the armed forces, voluntary organisations such as the Red Cross, occupational health and international agencies. There is a great deal of overlap in the knowledge required in many branches of nursing." This diversity of roles, however, encompasses many different competencies and models of care. The nurse in an intensive care unit needs to combine a high level oftechnological competence with individualised care that supports the patient, who is experiencing Department of Nursing, University of Manchester, Manchester M13 9PT BARONESS McFARLANE OF LLANDAFF, MSC, FRCN, professor and head of department Based on a lecture given at the college on 4 February 1985. not only physical but psychological and spiritual trauma. By contrast, the psychiatric nurse uses the skills of person to person interaction as a therapeutic tool. Much of the work of nurses in the area of mental handicap lies in the use of education strategies tor social skill training. The paediatric nurse needs to be able to integrate therapeutic skills with care that will facilitate and maintain normal human development. Midwifery and health visiting have been identified as separate professional roles. The midwife assists the mother in a normal human function that is only potentially related to pathology (which the midwife must be able to recognise). She is a practitioner in her own right and has considerable decision making autonomy in her area of competence. She spends a high proportion of time using health education skills. The health visitor has a major concern with primary prevention and uses skills of health education, counselling, and social advice. The role of the health visitor is in the domain ofhealth, but she uses knowledge and skills from the disciplines of education and social work. Commonalities and interfaces The nursing curriculum has thus to be designed to prepare for a diversity of roles and models of care. We have to question what commonalities exist in the knowledge and skills needed and to what extent there is a core curriculum or foundation course that, desirably, should be common to all. At what stage should specialisa- o n 5 A p ril 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://w w w .b m j.co m / B r M e d J (C lin R e s E d ): first p u b lish e d a s 1 0 .1 1 3 6 /b m j.2 9 1 .6 4 9 0 .2 6 6 o n 2 7 Ju ly 1 9 8 5 . D o w n lo a d e d fro m http://www.bmj.com/ 
work_wmksk2acsjghtfohh5ufmcgjbu	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221727559 Params is empty 221727559 exception Params is empty 2021/04/06-03:20:23 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221727559 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:23 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_wnycdsem6fc6hkckqbbh34x5xe	----	This is the author’s version of a work that was submitted/accepted for pub- lication in the following source: Comber, Barbara (2015) Critical literacy and social justice. Journal of Adolescent & Adult Literacy, 58(5), pp. 362-367. This file was downloaded from: http://eprints.qut.edu.au/74883/ c© Copyright 2014 International Reading Association Notice: Changes introduced as a result of publishing processes such as copy-editing and formatting may not be reflected in this document. For a definitive version of this work, please refer to the published source: http://doi.org/10.1002/jaal.370 http://eprints.qut.edu.au/view/person/Comber,_Barbara.html http://eprints.qut.edu.au/74883/ http://doi.org/10.1002/jaal.370 Critical literacy and social justice Barbara Comber Abstract Given the global escalation of gaps between rich and poor, contemporary work in critical literacy needs to overtly question the politics of poverty. How and where is poverty produced, by what means, by whom and for whom and how are educational systems stratified to provide different kinds of education to the rich and the poor? Yet rather than critical literacy, international educational reform movements stress performative standards on basic literacy. In this context literacy researchers need to ask policy-makers hard questions about taken-for-granted rhetoric that surrounds poverty, literacy and education. At school, regional and state levels, educational leaders need to argue for fair resourcing and decision-making for their communities and students. In classrooms teachers need to weave critical questioning and inclusive learning interactions into the fabric of everyday life. Introduction One of the so-called ‘wicked problems’ confronting most nations is poverty, or the unequal distribution of resources. This problem is perennial, but how, where and with which physical, psychological, social and educational effects, and for which students (and their teachers), needs continual scrutiny. Poverty is relative. Entire populations may be poor or groups of people and individuals within nations may be poor. Poverty results from injustice. Not only the un- and under-employed are living in poverty, but also the ‘working poor’. Now we see affluent societies with growing pockets of persistent poverty. While there are those who dispute the statistics on the rise of poverty because different nations use different measures (for example see Biddle, 2013; http://theconversation.com/factcheck-is-poverty-on-the-rise-in-australia- 17512), there seems to be little dispute that the gaps between the richest and the poorest are increasing (see http://www.stanford.edu/group/scspi/sotu/SOTU_2014_CPI.pdf). The kinds of poverty that are being produced now may be different to those of the past. Economist, Thomas Piketty (2014, p. 571) concludes that: A market economy based on private property, if left to itself, contains powerful forces of convergence, associated in particular with the diffusion of knowledge and skills; but also contains powerful forces of divergence, which are potentially threatening to democratic societies and to the values of social justice on which they are based. Because wealth distribution is occurring on a global scale, Piketty (2014, p. 571) believes that those who ‘own nothing but their labor’ are increasingly susceptible to dominant entrepreneurs, who prevent institutional democracy and with consequences he sees as ‘potentially terrifying’. A recent OECD report (http://www.keepeek.com/Digital-Asset-Management/oecd/social-issues-migration- health/society-at-a-glance-2014_soc_glance-2014-en) indicates growing numbers of people report having ‘problems making ends meet’ and that young and low-skilled workers are hardest hit and face long-term ‘scarring’ effects. They face a future of http://theconversation.com/factcheck-is-poverty-on-the-rise-in-australia-17512 http://theconversation.com/factcheck-is-poverty-on-the-rise-in-australia-17512 diminished earnings and job prospects, at a time when public spending on education has declined. This is a particularly dangerous mix. We hear of ‘deep and persistent disadvantage’ (McLachlan et al., 2013), and of increasingly divided populations with gaps between the affluent and the poor that impact on young people (Stanley, Richardson & Prior, 2005, pp.102-103. We are already seeing the emergence of a divided society…The children of the poor live a strikingly different life. Increasingly they crowd into low-income suburbs with poor-quality physical environments and public facilities, and worrying levels of crime and disturbance. They go to under-resourced schools with stressed teachers, and go home to parents distracted by worry about how to pay the latest electricity bill. A divided society translates into the residualisation of poor youth into certain schools (Kenway, 2013) impacting on teachers’ work. In the US, James Ryan (2010, p. 13) writes of schools only five miles apart, where ‘the politics of separation’ ensures that young people’s lives and educational futures remain ‘a world apart’. As Ryan observes (see also Lipman, 2011; Luke, 2012; Ravitch, 2010) high stakes testing has done nothing positive in terms of guaranteeing a high quality, high equity education. Moreover Berliner (2013) argues that educational inequality cannot be solved by schools alone but by tackling wider social problems of inequality of income and lack of employment. Raffo and colleagues (2010) in the UK note that while education is seen as a way out of poverty, it is typically the poor who gain least from schooling in terms of educational credentials and opportunities. So what do the injustices associated with poverty have to do with critical literacy? Education, literacy in particular, is often purported to offer the possibility of social justice. For some ‘working-class’ and immigrant baby boomers, completing high school and going on to higher education was indeed the ticket out of the kinds of poverty experienced by our parents and grandparents. Nevertheless, if Piketty is right, the game has changed. Hence contemporary work in critical literacy needs to overtly question the politics of poverty: how and where is poverty produced, by what means, by whom and for whom and how are educational systems stratified to provide different kinds of education to the rich and the poor? Paulo Freire (1972), often recognized as the initiator of critical literacy, understood that critical literacy could enable workers and farmers to ask questions about their conditions and argue for their rights. Freire conceived of teachers as cultural workers because they could assist people to understand how things were organized to benefit the privileged. Now however the whole concept of teachers acting as brokers of powerful learning and questioning is under challenge from global educational reform movements that want teachers to enact scripted curriculum and deliver basic literacy (Berliner, 2013). These international trends require critical literacy and action at multiple levels – at a policy level from researchers to ask hard questions about taken-for-granted rhetoric that surrounds poverty and education (Berliner, 2013; Luke, 2012; Ravitch, 2010); at a school, regional and state level, from educational leaders to argue for a fair resourcing and decision-making for their communities and students; and at classroom level, from teachers to weave critical questioning and inclusive learning interactions into the fabric of everyday life (Sandretto & Klenner, 2011). Social justice and critical literacy Different theories of social justice underpin critical literacy (see Zacher Pandya & Avila, 2014). My early conception of critical literacy (Comber, 1994) involved the following pedagogical moves:  Repositioning students as researchers of language  Respecting student resistance and exploring minority culture constructions of literacy  Problematising classroom and public texts This approach was informed by Freire, but also by Australian sociologist R.W. Connell’s identification of a key principle of social justice as working in the ‘interests of the least advantaged’ (Connell, 1993, p. 43). Learning from the standpoints of women, the poor, and indigenous peoples, in Connell’s view could lead to curricular justice, by changing what counts as valued knowledge. It is more urgent than ever to interrogate common and national curricula being instituted in many countries and states. In Connell’s terms: What might constitute ‘curricular justice’? Whose interests are represented? What constitutes knowledge? What is open to question and negotiation? What kinds of social justice might be needed to underpin our critical literacy curriculum designs? What kinds of dilemmas are faced daily in schools serving our most disadvantaged communities? If Piketty is correct then the kinds of knowledges and skills education provides will be increasingly significant to the quality of life young people can enjoy. Longitudinal studies of young people growing up in poverty indicate that the following factors at school make a difference to the literate repertoires they assemble:  the resources factor (the extent to which schools have the human and material resources they need)  the curriculum factor (the quality, scope and depth of what is made available)  the pedagogical factor (the quality of teacher instructional talk, teacher-student relationships and assessment practices).  the recognition factor (the extent to which what students can do counts and that they can see that it counts)  the take-up factor (the extent to which students appropriate literate practices and school authorised discourses)  the translation factor (the extent to which students can make use of and assemble repertoires of practice which they can use in new situations). (Comber, Badger, Barnett, Nixon & Pitt, 2002) Such heuristics examine curriculum provision, what different learners do with specific learning opportunities and the long-term consequences. Standardisation, measurement, comparison, and high stakes tests may contribute to deficit thinking and the removal of educator agency (Werts et al., 2013). Given that many schools serve increasingly diverse student communities; have responsibility for educating students in continuously changing digital and communication technologies; and address escalating pressure to lift and sustain measurable standards on high stakes – it is harder, but more important than ever, to keep equity frameworks in the foreground. Researching in schools in high poverty and working-class areas I hear about “literacy blocks”, “literacy agreements”, “whole school literacy plans”, “literacy coaches”, extra “literacy bolt-on lessons” in high schools to enhance cohort results on standardized tests. It seems the ‘literacisation’ (Comber & Hill, 2000) I feared some years ago has arrived, whereby literacy becomes both the problem and the solution to educational inequities. Such an emphasis can be dangerous when coupled with ruthless economic rationalist and neoliberal approaches to government which assume that hardworking literate individuals will always be guaranteed well-paid work. Literacy becomes complicit in false promises and deflects attention away from the fundamental injustices. Tamara Spencer (2014) warns of a similar problem in contemporary in early childhood literacy policy when a ‘research canon’ is appropriated by the media and policy makers, namely, blaming educational inequities on poor parents so-called failure to speak with their children. If learning deficits can be located in the families’ practices, rather than in the social or educational budget, the better for governments! One school community, where I am currently researching the relationship between educational leadership and turnaround literacy pedagogies (Comber & Kamler, 2004) has recently learned of the impending closure of the Holden car manufacturing plant. It is too expensive to build cars in Australia. Holden has been the major employer in the area for decades and a great deal of employment and services are associated with it. This is already a high poverty area. The future is bleak. The leadership team is working hard to produce knowledgeable teachers, to ensure clear agreements in offering a balanced literacy program, proper resources for literacy, including rich literature, access to new technologies, understandings of positive psychology and more. However we witness the daily complexity of their work as families grapple with effects of poverty. These manifest in the schoolyard and classrooms as high levels of illness, stress, tiredness, absences, outbreaks of violence. It is hard work to enhance literacy learning in the face of such material challenge. This is not to subscribe to a deficit discourse, but to note that poverty and place do impact on whether young people come to school and sometimes how they arrive in terms of their physical and mental well-being. Critical literacies: investigating people, poverty and places Recently I worked with teachers in Christchurch New Zealand, where communities are still struggling with the aftermath of the earthquake over three years later. While some people seem to have been able to command the capital and the resources to have services and buildings fixed, others are still living in damaged dwellings and with limited infrastructure. The repair work is very uneven. After Cyclone Katrina, feminist geographer Cindi Katz observed that: Geography is always socially produced. And so every landscape can reveal sedimented and contentious histories of occupation; struggles over land use and clashes over meaning, rights of occupancy, and rights to resources. (Katz, 2008, p. 16) After disasters, the poor seem to get poorer. These trends are depressing and demoralizing. However there are instances of teachers exploring the affordances of such tragedies with young people to tell new stories through dramatic play and story- telling (Bateman, Danby & Howard, 2013) film-making (Mills, Comber & Kelly, 2013) and using urban regeneration to reclaim a sense of belonging in place through place conscious pedagogies (Sánchez, 2011). Where can teachers turn to investigate the relationships between people and places, work and wealth? Educational magazines such as ‘Rethinking Schools’ offer analyses of such phenomena. For example a recent issue featured an article (Gutstein, 2013) entitled, ‘Whose community is this? Mathematics of neighborhood displacement’, provides an account from a high school teacher who designed the curriculum to develop students’ understandings of Mathematics and justice in the context of gentrification, bank-loans and the changing value of dwellings. Such a curriculum brings high level academic understandings together with students’ lived experience and provides them with the intellectual means for complex analyses. Yet some literacy lessons we observe consist of repetitive routinized activities practiced day in and day out – fickle empty literacies, like copying and coloring in, which foster compliance and quiet, but little else. Scripted pedagogies quickly become barren landscapes for teaching and learning when stripped of significant content and concepts. Instead in such contexts it is imperative that literacy lessons are occasions for complex and critical meaning-making, for students to assemble sophisticated analytical repertoires which they can apply to social phenomena such as poverty, youth unemployment or workers’ rights. Educators as critical media and policy analysts The press sometimes contributes to the meta-narrative of blaming the poor (Comber, 1997; Maguire, 2007; Berliner, 2014). One story, often repeated, tells of poor folk who spend their welfare money on the wrong things – alcohol, gambling, trendy clothes, and so on. Another story is of the likelihood of violence and drugs in poor areas such that some places become demonized no-go zones, except of course for those who live there. These stories of communities become ‘texts of terror’ (Rappaport, 2000) – dominant cultural narratives – which actively reproduce dangerous stereotypes and chains of logic and literally change the ways in which poor youth might be seen by their teachers. However there are important sites where counter-stories are produced in various media. Here I take just one example. In Australia a magazine produced each fortnight entitled The Big Issue, is sold on street corners, malls and at public events. These magazines provide a range of texts that both give reliable and easily accessible information about poverty and injustice and about how this is experienced by different people. We are an independent, not-for-profit organisation dedicated to supporting and creating job opportunities for homeless, marginalised and disadvantaged people. Simply put, we help people help themselves…. (http://www.thebigissue.org.au/about-the-big-issue/about/; accessed May 7, 2014) In the United Kingdom, where The Big Issue originated and where it is still published, a recent issue featured first person accounts of 24 hours in the lives on the street of http://www.thebigissue.org.au/about-the-big-issue/about/ different vendors (http://www.bigissue.com/the-mix/news/3849/the-real-24). Each issue contains a range of topical articles, letters to the editor, interviews with public figures, cartoons, some facts about poverty and homelessness and vendor profiles. Facts include memorable one-liners like: “One in every 200 Australians are homeless tonight”. Without becoming didactic articles include quotations from interviews with leading cultural commentators such as author Tim Winton speaking of affluence in contemporary Australia: ‘It is a preposterous country and a rich culture, but we are remarkably incurious about those that get left behind in prosperity’s wake’. As The Big Issue journalist reports not everyone is ‘indifferent to those left behind in the boom’ (Quick, 2014, p. 27) and she goes onto to include photographic images of patients and doctors treating homeless and marginalized people in Perth, Western Australia. The Big Issue organization is now offering workshops for school students that help to put poverty on the education agenda. Such workshops are particularly valuable in more privileged areas. Getting out of deficit: Guarding against basic recycled literacies Inequities in education relate to both poverty and place (Green & Letts, 2007; Lipman, 2011; Raffo et al, 2010). Even opportunities for ambient literacy learning may be unequal (Jocson & Thorne-Wallington, 2013). If contemporary inequalities are beyond those that can be attended to by national states because they are increasingly associated with problems of global capital (Piketty, 2014), then our frameworks for social justice need to be global. What constitutes social justice can no longer be framed within national boundaries (Fraser, 2009). What determines whether people get to live a good life is no longer determined only within the nation state. Fraser maintains that: [T]heories of justice must be three dimensional, incorporating the political dimension of representation alongside the economic dimension of distribution and the cultural dimension of recognition (Fraser, 2009, p.15, my emphasis). These three dimensions of justice have informed thinking about social justice in literacy education (Woods, Dooley, Luke, Exley, 2014), including my own. However as Fraser explains it is now increasingly difficult to work out the ‘who’ and the ‘how’ of justice in times of globalization. [T]the forces which perpetuate injustice belong not to ‘the space of places’, but to ‘the space of flows’. Not locatable within the jurisdiction of any actual or conceivable territorial state, they cannot be made answerable to claims of the state- territorial principle (Fraser, 2009, p.23). In closing his economic analysis covering 2 centuries Piketty argues for the importance of history in understanding how things came to be as they are and how they might be changed and that social scientists, activists, journalists and commentators, and I would add educational researchers, ‘should take a serious interest in money’ (Piketty, 2014, p. 577). He reminds us that: Those who have a lot of it never fail to defend their interests. Refusing to deal with numbers rarely serves the interests of the least well-off. http://www.bigissue.com/the-mix/news/3849/the-real-24 Designing curriculum with a social justice agenda requires knowledge about the relationships between people, places and poverty. This will mean enhancing teacher knowledge of economics, statistics, geography, politics and history. Future critical literacy practices need to engage teachers and students in investigating relationships between changing phenomena, including money, rather than a static embracing of the old so-called basics and compliance with the status-quo. References Bateman, A. Danby, S. & Howard, J. (2013). Living in a broken world: how young children's well-being is supported through playing out their earthquake experiences. International Journal of Play, 2(3), 202-219. Berliner, D. (2013). Effects of inequality and poverty vs. teachers and schooling on America’s youth. Teachers College Record, 115 (12). Comber, B. (1997). Literacy, poverty and schooling: working against deficit equations. English in Australia 119-120: 22-34. Comber, B. (1994). Critical literacy: an introduction to Australian debates and perspectives. Journal of Curriculum Studies 26(6), 655-668. Comber, B., Badger, L., Barnett, J., Nixon, H. & Pitt, J. (2002). Literacy after the early years: A longitudinal study. Australian Journal of Language and Literacy, 25(2), 9-23. Comber, B & Hill, S. (2000). Socio-economic Disadvantage, Literacy and Social Justice: Learning from Longitudinal Case Study Research. The Australian Educational Researcher, 27 (9), 79-98. Comber, B. & Kamler, B. (2004). Getting out of deficit: Pedagogies of reconnection. Teaching Education, 15(3), 293-310. Connell, R.W. (1993). Schools and Social Justice. Toronto: Our Schools/Our Selves Education Foundation. Fraser, N. (2009). Scales of justice: Reimagining political space ina globalising world. New York: Columbia University Press. Freire, P. (1972). Pedagogy of the oppressed. New York: Seabury. Green, B. and Letts, W. (2007). Space, equity, and rural education: A trialectical account. In K. Gulson & C. Symes (Eds.). Spatial theories of education: Policy and geography matters (pp. 57-76). New York and London: Routledge. Gutstein, E. (2013). Whose community is this? Mathematics of neighborhood displacement. Rethinking schools, 27(3) http://www.rethinkingschools.org/archive/27_03/27_03_gutstein.shtml Jocson, K & Thorne-Wallington, E. (2013). Mapping literacy-rich environments: Geospatial perspectives on literacy and education. Teachers College Record, 115 (6) p. 1-24, http://www.tcrecord.org ID Number: 16981, Date Accessed: 6/15/2014 9:20:36pm. Katz, C. (2008). Bad elements: Katrina and the soured landscape of social reproduction. Gender, Place and Culture 15(1), 15-29. Kenway, J. (2013). Challenging inequality in Australian schools: Gonski and beyond. Discourse: Studies in the cultural politics of education. 34(2), 286-308. Lipman, P. (2011). The new political economy of urban education: neoliberalism, race and the right to the city. New York & London: Routledge. http://www.tcrecord.org.ezp01.library.qut.edu.au/Home.asp Luke, A. (2012). After the testing: talking and reading and writing the world. Journal of Adolescent and Adult Literacy, 56(1), pp. 8-13. McLachlan, R. Gilfillan, G. & Gordon, J. (2013). Deep and Persistent Disadvantage in Australia. Productivity Commission Staff Working Paper, Canberra. Mills, K. Comber, B. & Kelly, P. (2013). Place and Media Production: Embodiment, Kinesis, Sensoriality and Children Behind the Camera. English Teaching: Practice and Critique, 12(2), 11-27. OECD (2014). Society at a Glance 2014: OECD Social Indicators, OECD Publishing. doi: 10.1787/soc_glance-2014-en. Piketty, T. (2014). Capital in the twenty-first century. (Trans. A. Goldhammer). Cambridge, Massachusetts: The Belknap Press of Harvard University Press. Quick, S. (2014). Health matters. The Big Issue, 21February - 6March, pp. 24-27. Raffo, C. Dyson, A. Gunter, H. Hall, D. Jones, L & Kalambouka, A. (Eds.). (2010). Education and poverty in affluent countries. New York & London: Routledge. Rappaport, J. (2000). Community narratives: Tales of terror and joy. American Journal of Community Psychology, 28 (1), 1-23. Ryan, J. (2010). Five miles away, a world apart: One city, two schools, and the story of educational opportunity in modern America. Oxford: Oxford University Press. Sánchez (2011). Building on Young Children's Cultural Histories through Placemaking in the Classroom, Contemporary Issues in Early Childhood, 12(4), 332-342. http://dx.doi.org.ezp01.library.qut.edu.au/10.2304/ciec.2011.12.4.332 Sandretto, S. with Klemmer, S. (2011). Planting seeds: Embedding critical literacy into your classroom programme. Wellington: NZCER Press. Spencer, T. (2014). The danger of canonizing research withing early childhood literacy policies. Language Arts, 91(3), 176-182. Stanley, F. Richardson, S. & Prior, M. (2005). Children of the lucky country? How Australian society has turned its back on children and why children matter. Sydney: MacMillan. Werts, A. Sala, M. Lindle, J. Horace, J. Brewer, C. & Knoeppel, R. (2013). Education Stakeholders' Translation and Sense-Making of Accountability Policies. Leadership and Policy in Schools, 12:4, 397-419, DOI: 10.1080/15700763.2013.860464. Woods, A. Dooley, K. Luke, A. Exley, B. (2014). School Leadership, Literacy and Social Justice: The Place of Local School Curriculum Planning and Reform. In I. Bogotch & C. Shields (Eds.). International Handbook of Educational Leadership and Social (In)Justice (pp. 509-520). New York: Springer. Zacher, Pandya, J & Avila, J. (Ed.). (2014). Moving critical literacies forward: A new look at praxis across contexts. New York & London: Routledge. http://dx.doi.org/10.1787/soc_glance-2014-en http://dx.doi.org.ezp01.library.qut.edu.au/10.2304/ciec.2011.12.4.332 
work_wpxegkvhhjfhnhnj7s7oqyzwcu	----	Love and Justice: a Paradox?i Anca Gheaus, Universitat Pompeu Fabra Abstract Three claims about love and justice cannot be simultaneously true and therefore entail a paradox: (1) Love is a matter of justice. (2) There cannot be a duty to love. (3) All matters of justice are matters of duty. The first claim is more controversial. To defend it, I show why the extent to which we enjoy the good of love is relevant to distributive justice. To defend (2) I explain the empirical, conceptual and axiological arguments in its favour. Although (3) is the most generally endorsed claim of the three, I conclude we should reject it in order to avoid the paradox. Introduction “All you need is love” sang the Beatles, and their song became a best hit. They overstated their case; we needii a lot more in order for our lives to go well: clean air and water, food and shelter, reasonable levels of safety and social interaction that has little to do with love. Nor is love what we most urgently need: one or several of the things above have priority because we can survive without love, but not without them. Yet, like Beatles fans, and many others, I assume that giving and receiving love is constitutive of (even minimal) flourishing for the vast majority of people. We can, especially as adults, bridge periods of time without any love and without being, for this reason, severely harmed. But we typically cannot have good lives without ever experiencing some love in relationships with other people. “Love” is very frequently used and yet notoriously difficult to define. Philosophers disagree on what it is, and in this paper I do not commit to a particular definition. Whatever else it may involve – whether a disposition to be affectionate towards, care for, or pay special attention to, the beloved – personal love is motivated by the individuality of the beloved iii, given at least in part out of inclination, and, at least to some degree, spontaneously. As opposed to relationships in which we are less personally invested, in loving the lover’s own well-being is not independent from the well- being of the beloved: if the beloved’s life goes badly for her, the lover’s life also goes worse, in some sense and for this very reason. In virtue of these features, personal love is a confirmation of the beloved’s value, and this is its non-instrumental contribution to how well one’s life goes. Caring for someone is a disposition to benefit that person, disposition which is not necessarily motivated by the individuality of the cared-for and that could, instead, be entirely motivated by duty. The distinction between love and care is important for the argument in the third section. The main claim of this paper is that the non-instrumental value of personal love poses a serious challenge to the way in which we think about distributive justice. Three plausible claims about love and justice cannot be simultaneously true and therefore entail a paradox. The last two are generally, although not universally, accepted. The first is more controversial but, I hope to show, follows from some widely endorsed conceptions of justice. This section briefly introduces the claims and subsequent sections discuss the arguments in favor of each claim. The first claim is about the relationship between justice and love: (1) Love is a matter of justice. This claim can be plausibly interpreted in two different ways: 1.1. The relative extent to which people enjoy the good of love is a matter of fairness, and therefore of justice as (luck egalitarian) fairness. or 1.2. People need to be loved at least sometimes and to some degree in order to lead sufficiently good lives, therefore love is a matter of justice as sufficiency. Love has significant, and non-instrumental, non-substitutable and widely recognised value. (1) follows directly from factoring this belief about love’s value into some of the currently dominating conceptions of distributive justice: luck egalitarianism and sufficientarianism. The core claim of luck egalitarianism is that it is unfair, and thereby unjust, for some to be worse off than others through no fault or choice of their own. This is a claim about the correct pattern of distribution, and luck egalitarians disagree with respect to the metric of distribution. Here I assume that love is constitutive of wellbeing, but that it can also be conceptualized as a resource, as a form of advantage or as a capability. But one does not have to be a luck egalitarian to endorse that love is a matter of justice. Sufficientarians believe it is unjust when some people lack what they need for a sufficiently good life. If love is necessary for a sufficiently good life, sufficientarians, too, ought to see it as a matter of justice. I do not discuss whether love poses the same kind of challenge to another influential theory of justice, namely John Rawls’. However, if the non-instrumental good of love is necessary in order for individuals to acquire self-respect – which, according to Rawls, is the most important primary good – the scope of my argument is even wider. This is not implausible, assuming that as children we need to be loved in order to acquire a positive conception of the self and the motivation to develop our talents (Liao 2015: 79-85.) A few caveats are necessary. Some of you will find the claim that love is a matter of justice deeply implausible because you think that feasibility constraints determine the conten of justice. It is difficult to imagine that we could ever bring about a fair distribution of the good of love and therefore, if what is a matter of justice depends on what is feasible, love cannot be a matter of justice. Yet, the position that feasibility partly determines desirability comes at significant theoretical and practical costs (Gheaus 2013). By contrast, I assume that the answer to the question of what is a just distribution of benefits does not conceptually depend on what is feasible (Cohen 2009). Feasibility matters for deciding who, if anyone, ought to bring about a particular distribution but the question of what is a just distribution must be decided prior to deciding whether it is feasible to bring that distribution about. I will return to the issue of feasibility and love as well as to the question concerning the concept of justice in the discussion of the second and third claims respectively. The second caveat follows from the first: that love is a matter of justice need not directly entail any claim about the role of the state, or of any other agent of justice, in bringing about a fair distribution of the benefits of love. (Indeed, this paper is not committed to any view on which agents have reasons of justice.) The second claim is about love, that: (2) There cannot be a duty to love. It is not entirely up to us whether, whom and how much we love. Moreover, while we can – and, as I will show, ought to – try to bring about the conditions under which love is likely to be forthcoming, we cannot ultimately control its evolution since, as a conceptual matter, love must be partly motivated by the individuality of the beloved. Recent attempts to deny (2) aim to prove that love can be controlled. I shall explain why such attempts fail to address the problem that a duty to love is an absurdity. If love’s unique value depends on some measure of spontaneity in giving it then no amount of empirical research indicating that we can control some of the conditions of our loving can establish the existence of a duty to love. To better see this, I shall discuss the likely loss experienced by someone who is at the receiving end of mere love-like behavior when what she needs is genuine love. The third claim is also about justice. It is generally accepted that any injustice entails rights violations, and that for a right to exist there must be correlative duties. Therefore, justice is believed to be conceptually connected to duty. The third fundamental claim I discuss is: (3) All claims of justice are conceptually connected to claims of duty. This claim is not inconsistent with the above-announced methodological commitment concerning justice and feasibility. One may be able to give examples of unfairness that cannot be rectified and which (if ought implies can), no agent has a duty to rectify. However this does not in itself indicate that “justice” in such examples is conceptually disconnected from duties. Presumably, if it became possible to rectify the injustice in case, some agent would acquire a duty to do so. Even if justice does not depend on feasibility, while actual duties do, justice still seems to depend on duties that would obtain in more favorable empirical circumstances – or, as I shall call them here, on counter- factual duties. As G.A. Cohen (2009, 252) put it, “we find fundamental justice within claims of the form: if it is possible to do A, then you ought to do A.” Claims (1), (2) and (3) are explored and defended in the next three sections. Claim (1): Love is a matter of justice Here I am concerned with love in general, rather than with any particular kind such as romantic, companionate, parental or filial love. I often use illustrations drawn from parental love, which are best suited to make the case that the extent to which individuals enjoy love is a matter of justice. Yet, the scope of the paper goes beyond parental love. Love as understood here is personal, which means that it is directed at, and responsive to, the individuality of the beloved rather than being directed at, and responsive to, what particular individuals have in common with wider groups of individuals, as is the case with Christian love, Buddhist love, or love for humanity. Being personal in this sense, love is also partial: we love some individuals and not others. On most interpretations, personal love involves responding to the individuality of the beloved with a robust disposition to care for or be attached to that individual. But the present analysis is equally relevant to the alternative view that love consist in an ability to pay special attention to the beloved. I also assume that, precisely because it is directed at the individuality of the beloved, the attitudinal dimension of love involves an element of spontaneity which is constitutive to how love is valuable for the beloved. Two arguments support the conclusion that being loved and, perhaps, being able to love, are matters of justice. If at least one of them is successful, claim (1) can be established. The first argument assumes luck egalitarianism: Argument 1.1. (a) It is unfair, and thereby unjust, for some to be worse off than others through no fault or choice of their own (luck egalitarianism). (b) Being loved significantly contributes to how well a person’s life goes. (c) Love is, to a significant extent, a matter of brute luck. Therefore (1) Love has to be taken into account when assessing the justice of a distribution, and, in this sense, it is a matter of justice. Although popular amongst contemporary philosophers, luck egalitarianism is not endorsed by everybody. A second argument to the same conclusion assumes that justice requires only that which makes lives go sufficiently well; its more modest upshot is that being loved and able to love sufficiently are matters of justice: Argument 1.2. (d) Justice requires that people have what they need in order to lead sufficiently good lives (sufficientarianism). (e) People need to be loved and to be able to love at least sometimes and to some degree in order to lead sufficiently good lives. Therefore (1) Love is a matter of justice. Argument 1.1. (a) It is unfair, and thereby unjust, for some to be worse off than others through no fault or choice of their own (luck egalitarianism). In Cohen’s (2009, 7) words, “an unequal distribution whose inequality cannot be vindicated by some choice or fault or desert on the part of (some of) the relevant affected agents is unfair, and therefore, pro tanto, unjust”. This is an influential conception of justice and its fundamental intuition about fairness is shared by philosophers who cannot be properly described as luck egalitarians. It is for instance present in Rawls’ understanding of justice, at least to the extent to which the moral goal of a theory of justice is to come up with a conception “that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for political and economic advantage” (Rawls 1972, 5). (b) Being loved significantly contributes to how well a person’s life goes. “Nobody has ever loved me” is one of the gravest complaints that one can make about their life. Similar – or perhaps worse – is “I am not able to love anybody”iv. Moreover, it is widely believed that love cannot be substituted by the enjoyment of other goods. Enjoying some kind of love to some degree seems to be a significant constitutive part of a person’s subjective and objective well- being. This belief is supported by anecdotal evidence and testimonies of people who identify loving family and friendship relationships as the, or at least one of the, most important goods contributing non-instrumentally to their well-being; this led some philosophers to argue that in a just society people would enjoy loving relationships equally (Lynch et al. 2009). Love is also instrumentally valuable to creating agency: a vast feminist and psychological scholarship defends the importance of early loving relationships for becoming properly socialised, and moral, individuals (Ruddick 1989; Held 1993; Hollway 2006) – characteristics which, in turn, are necessary conditions for leading a good life. If it is true that being loved, especially early in life, contributes to the ability to value oneself as a unique individual, to become aware that one has intrinsic value and to acquire basic inner resources such as confidence and resilience, then enjoying loving relationships is what philosophers Jonathan Wolff and Avner De-Shalit (2007) call a “fertile functioning” – that is, a desirable state that increases one’s likelihood to achieve additional desirable states. Different luck egalitarians identify the metric of justice as either welfare, or capabilities or resources. The non-instrumental value of love is plausibly important enough to be necessary for a fully flourishing life – and hence love is directly relevant to theories that identify welfare, or opportunities for welfare, or capabilities, as the metric of justice. Whether or not one’s need for love is met also shapes that person’s opportunities for other goods; because love also has instrumental value, it can be plausibly seen as a kind of resource and therefore relevant to resourcist conceptions about the metric of justice. Love cannot, however, count as part of the metric of justice on a monistic resourcist view that identifies money as the relevant resource. (c) Love is to a significant extent a matter of brute luck. Perhaps, as adults, we can be held responsible to a great degree for the good as well as for the bad that love brings us to the extent to which we can choose the people with whom we relate. Yet, it is obvious that much of the circumstances of our relationships are not under our control – such as the conditions in which we meet those we love or lose them because they die. More importantly, to many of us it is somewhat mysterious what elicits our affection, desire, tenderness, longing, curiosity and attention. It is far from obvious that one can decide to love certain individuals and not others, even if the latter would make, according to one’s own judgment, perfect recipients of one’s love (Rainbolt 2016); nor is it possible to control who loves us. Further, we have little control over continuing to love another person or securing their continued love. The claim that love is a matter of brute luck is most difficult to dispute if we think about children and parents: children do not have any choice of who their parents are and how well their parents love them. From (a), (b) and (c) it follows that: (1) Love is a matter of justice. Many are skeptical of luck egalitarianism; its critics worry that it is impossible to implement its ideal of fairness and some point out that even trying to implement it would have unacceptable consequences for personal relationships (Lazenby 2010). They conclude that luck egalitarianism is best seen as a theory which, on its own, has little action-guiding potential. This conclusion does not undermine the point of this paper. It is consistent with believing that, if we could shape the world such that nobody’s life went worse than others’ for lack of love out of no fault or choice of their own, it would be a requirement of justice that we do it. More radical critics believe that luck egalitarianism is implausibly describing as unfair, and pro tanto as unjust, too much of what we usually attribute to unavoidable unfortunate circumstances – and, indeed, the way in which love upsets fairness is likely to raise this objection. A widely endorsed alternative to luck egalitarianism is the view according to which the aim of justice is to ensure that everybody has enough to lead a sufficiently good life. In particular, according to the defenders of an increasingly influential view, an adequate understanding of justice should instead focus on the relationship between citizens, aiming to eliminate obvious forms of injustice such as exploitation, domination, oppression, exclusion and marginalisation (Young 1988; Anderson 1999; Scheffler 2003). Many of these critics, who call themselves relational egalitarians, think that the real aim of justice is to ensure that everybody is sufficiently functional and socially included. Even if the aim of justice is to establish egalitarian relationships rather than some kind of distributive equality, just societies will not allow their members to fall below a certain threshold of well-being. I argue that various types of sufficientarians all have reason to endorse the second argument to the conclusion that love should be regarded as a matter of justice: Argument 1.2. (d) justice requires that people have what they need in order to lead sufficiently good lives (sufficientarianism). Sufficientarianism is a modest standard of justice. However, those who reject pattered conceptions of justice, such as libertarians, deny that even minimal well-being is due to people as a matter of justice. For them, the overall argument of this paper is a reductio of the particular conceptions of justice to which I appeal. (e) people need to be loved at least sometimes and to some degree in order to lead sufficiently good lives. Needs of the non-instrumental, morally significant, kind are best understood in relation to harm. According to David Wiggins’ (1998, 10) definition of intrinsic needs, I need X “if it is necessary, things being what they actually are, that if I avoid being harmed then I have X” v. Another feature of intrinsic needs is that they are not chosen, and that individuals cannot simply decide not to need what they need. It then seems plausible that all people need to be loved: much time, energy and other resources are spent in the quest for love and, when love is found it never seems to appear futile (unlike other goals that we pursue relentlessly.) According to people’s own testimonies, lives devoid of any love or hope for future love are often very miserable for this reason. And it is not up to people to decide that they can do without love (although it can be up to an individual to decide they can do without a loving relationship with a particular individual.) This is a stronger claim that (b) while still weaker than the Beatles’ slogan. The most charitable interpretation of Beatles’ slogan – which will not convince everybody – is that we have a very important need for love and that love cannot be substituted. Then, love’s absence entails significant harm and lives can hardly go sufficiently well if entirely deprived of love. This is vividly illustrated in the case of parental love: even those who are skeptical that adults need love in order to have sufficiently good lives will likely accept that children’s lives cannot go well enough in the absence of love from an adult. For this reason, Matthew Liao (2006; 2015) and Norvin Richards (2010) have recently defended the controversial position that parents have a duty of justice to love their children and children have a correlative right to be loved. Both argue that parents are responsible to ensure that their children reach an adequate level of well-being and that their children’s developmental needs are met, and rely on empirical literature to show that none of these goals can be achieved in the absence of parental love. According to Liao: “Studies of children in institutions found, for example, that children who did not receive love but only adequate care became ill more frequently; their learning capacities deteriorated significantly; they became decreasingly interested in their environment; they failed to thrive physically by failing to gain weight or height or both; they suffered insomnia; they were constantly depressed; and they eventually developed severe learning disabilities” (2006, 423). Further, some philosophers and psychoanalysts writing on recognition draw on a Hegalian tradition to claim that love, in particular parental love, plays a central role in the formation of agency – in shaping personhood and autonomy (Benjamin 1988; Honneth 1992). For example, it has been claimed that love is necessary for self-trust (Anderson and Honneth 2005). If having experienced love is crucial for autonomy and personhood – a claim also endorsed by the feminist ethics of care, at least when applied to parental love (Ruddick 1989; Held 1993) – then its absence can easily undermine our standing as political equals. Therefore, relational egalitarians as well as other sufficientarians have reason to be concerned with its distribution. As Liao’s critics noted (Cowden 2012), empirical studies only show that good emotional relationships between children and their caregivers are essential for children’s flourishing and that in their absence children’s development is seriously impaired. But we do not know which aspect of these relationships is crucial for flourishing. As far as the empirical studies are concerned, one may conclude that children’s flourishing is entirely due to the behavioural aspects of parental love, such as expressions of affection towards their children, attentiveness to their individual needs, quality time spent together and parents’ stance of partiality towards their children. How much does it matter to children that such behaviour is motivated by their parents’ partial response to their children’s individuality? It may be very difficult to devise empirical investigations to establish this. First, the emotions of love are very difficult to capture, define and measure. Second, it is very unlikely to encounter sufficient cases of the above-mentioned behaviour unsustained, on the long run, by genuine love, that is by responsiveness to the individuality of the child. While I do not think that the empirical evidence gives (or, possibly, could give) conclusive support to the claim that responsiveness to the individuality of the child is a significant part of what makes love so important for children, I think we have nevertheless good reason to give credence to this claim. The good of personal love is not reducible to the good of beneficial actions. Because when done out of love these actions are motivated by the individuality of the beloved, love is an affirmation of the value of the beloved – a point to which I return below. And, plausibly, it is love‘s affirmation of the beloved‘s value that gives love an important role in the formation of autonomy and personhood vi. From (d) and (e) it follows that, especially during the formative years of childhood: (1) Love is a matter of justice. The sufficientarian argument makes no reference to personal responsibility or individual choice. On the one hand, obliterating the issue of personal responsibility makes the sufficientarian argument a generous frame for understanding the relationship between love and justice: if somebody’s life is entirely devoid of love due to that person’s choices, and as a result an intrinsic need of that person is unmet, this situation would still count as unjust according to the sufficientarian accountvii. Unsurprisingly, one of the most influential sufficientarian theories of justice, which identifies capabilities as the metric of justice, explicitly lists a capacity to love and be loved amongst the relevant capabilities (Nussbaum 2006). Drawing on psychological literature, Liao (2015) argues that the acquisition of these capacities requires that one has experienced parental love. On the other hand, the second argument is less demanding, as it need not describe as unfair or unjust all inequalities in how much and how well we are loved (and for which we are not responsible). If luck egalitarianism is true, then all inequalities in love that are not due to our own responsible choices are unfair unless they are compensated for. In practice, this would certainly amount to detection of massive injustice in the world. On most sufficientarian accounts there is no injustice in the fact that we are unequally loved as long as we all receive enough love for our lives to go well. To illustrate the different implications of arguments one and two, the first deems a situation where parents love some of their children more as unjust while the second deems it just as long as all children receive sufficient love. Claim (2): There cannot be a duty to love Kant formulated an influential endorsement of (2): “Love is a matter of feeling, not of willing, and I cannot love because I will to, still less because I ought to (I cannot be constrained to love); so a duty to love is an absurdity” Kant (1996, 161)viii. Recently, however, several philosophers have argued that children have a right to be loved and that parents have a duty to love their children (Liao 2006, 2015; Richards 2010; Ferracioli 2014). Liao, who defended a right to be loved, and Luara Ferracioli, who defended a duty to love – both driven by the importance that love has for children’s wellbeing and development – usually read the Kantian position as being about what people can and cannot do – so, ultimately, as grounded in an empirical claim (which they reject). The same interpretation of Kant’s position is implicit in Liao’s critics and other philosophers who draw on Kant in order to deny that there can be rights and duties to love (Brake 2011; Cowden 2012). I will therefore first discuss: Argument 2.1.: (f) We cannot fully control whether or not we love. (g) “Ought” implies “can”. Therefore: (2) There cannot be a duty to love. As I will explain, it is difficult to deny (f). But even if (f) was false, there is a philosophically more interesting, and overall more plausible way of understanding Kant’s position as being not about the limits of individuals’ abilities – and hence about an empirical matter – but about what counts as “love” – and hence about a conceptual matter. On this second reading, if we could fully self-induce all the dispositions and emotions that we typically identify as “love” we would nevertheless fail to love, because, by assumption, love must be at least in part caused by something outside the lover – by the beloved. (Kant’s formulation, at least in translation, appeals to human ability, yet concludes that a duty to love is absurd rather than impossible. It therefore remains ambiguous between an empirical and a conceptual interpretation.) The next argument draws on Philip Pettit’s recent account of love as a robustly demanding good to explain why love-like behavior that does not respond to the individuality of the beloved is conceptually different from love. A conceptual argument about the impossibility of a duty to love, however, would be of limited interest if it was merely semantic. I compare genuine love to love-like behavior that fails to be adequately motivated by the individuality of the beloved and claim that the intrinsic value of the former comes from the fact that it is given out of inclination and with a measure of spontaneity. Therefore, we have good reason to employ a concept of love that makes a duty to love absurd. One may, and possibly should, cultivate certain dispositions – including dispositions to notice, appreciate and become responsive to others – that make genuine love more likely. But the intrinsic value of love is realised only when inclination, and hence spontaneity, play a role in loving. This is: Argument 2.2.: (h) People need some affection, care or attention given spontaneously, out of inclination. (i) Therefore the affection, care or attention resulting exclusively from one’s self-controlled behaviour would not meet the specific need for love. (j) Therefore meeting the need for love cannot be a matter of duty. Therefore: (2) There cannot be a duty to love. I now move on to defend these arguments. Argument 2.1. (f) We cannot fully control whether or not we love. As noted above, love cannot be entirely a matter of volition: we cannot bring ourselves to love other people just because we want to. This is a familiar claim, put forward by philosophers and non- philosophers alike. From Kant to Jane Austen, there is a consensus that genuine attachment cannot be fully commanded. Since love is responsive to the particularity of the beloved, it involves the individual taste of the lover and her selective sensitivity and attention – features that we can cultivate but not entirely control. Suppose Jane’s love for Jill may be renewed every time Jill displays her quirky, shy or tender sense of humor; the fact that she notices and appreciates this feature in Jill and not in others (at least not in a love-conducive way) is not entirely up to Jane. Most of us believe we are not able to engineer the partiality that defines personal love. While the more familiar illustrations of (f) come from romantic or companionate love between adults, the love of parents for their children can also illustrate this point. Parents who, in spite of their best efforts, cannot love a particular child (for instance, because they are themselves struggling with depression), or cannot love all of their children equally, are not unheard of. This last example shows why (f) represents a problem for realising fairness with respect to love on a luck egalitarian understanding of justice. If you are less loved than your siblings through no fault of your own, and if being less loved than your siblings has a negative impact on your opportunities, then unequal parental love entails unfairness. And if love is important for justice because we have an intrinsic need for enough love, then parents’ inability to love a child enough will create injustice even according to the more modest principle of sufficiency. The idea that there cannot be a duty to love has been contested, with respect to both parental and romantic love. Defenders of a duty to love children ground their argument in the importance of love for the beloved’s wellbeing to argue that love is owed to children as a matter of justice (Liao 2006, 2015; Richards 2010). They also argue that love is, to some extent, under our control because we can cultivate loving dispositions towards individual people. Iddo Landau and Matthew Liao illustrated ways in which individuals can take action that is very likely to evoke, maintain or renew marital and parental love (Landau 2004; Liao 2006). These arguments are persuasive but limited. As their critics show, individuals can achieve only that much success in their attempts to self-induce affection towards or caring for, a particular individual (Brake 2011; Cowden 2012; Rainbolt 2016). Affection and caring (as well as special attention) respond to some of the qualities of the beloved; this claim need not presuppose the controversial view that we love people because of their qualities, but the more modest one that sufficient change in certain qualities of the beloved can challenge, and sometimes destroy, love (Brake 2011). The claim that love cannot be commanded can be read as an empirical truth. But what if we were able to overcome the typical limitations of controlling love by making love impervious to changes in the beloved – what if we were able to create “the love drug”? A number of philosophers have recently defended the use of neuro-enhancements to improve love (Nyholm 2015). Even if the love drug was available, however, its advocates suggest its use as a consolidator of already established love. None defends the claim that we could or should make available a love drug that makes it possible to assign, to each individual in need of love, someone to provide the affection, care or attention they could not provide in the absence of the drug. Nor does anyone suggest that love drugs could or should be used to ensure that everybody enjoys love equally. Defenders of the claim that we should make available a love drug propose it as a solution for expanding the scope of control we have over love, rather than bring it entirely under our control. As I show below, this is wise. (g) Ought implies can – one cannot be morally required, even less be under a duty to, do something one cannot do. The most uncontroversial interpretation of this fundamental, widely endorsed principle, is that an agent is not violating any duty by not doing what she cannot do – no matter how much value that action would realise, should she able to do it. One cannot logically exclude the possibility of a world in which, serendipitously, everybody is sufficiently or equally loved. And there might be many things we can do in order to move closer to this world by giving people the time and leisure to be with and focus on others, educating them to cultivate loving dispositions and relationships, containing mental and emotional disorders and mitigating their effects. However, if the present argument is correct, our intentional action and hence duty will have to stop at doing whatever it takes for love to flourish for all – for people to spontaneously respond with love to some others. Yet, all this amounts to is a (collectively held) duty to enable love. From (f) and (g) it follows that: (2) There cannot be a duty to love. Argument 2.2. The worry concerning drug-induced affection, care or attention is that, being drug-induced, they would not be responsive to the individuality of the beloved. This amounts to a conceptual claim: that love over the creation of which the agent has full control – and which therefore could be given out of duty – is not really the partial, personal love that is so important to our wellbeing. If who you are plays no role in explaining my love for you, I may feel for you – say – humanitarian, or Christian, love but not personal love. Everyday uses of “love” tend to involve, conceptually, that love cannot be given at will. The non-volitional element of love explains why we believe that attempts to buy or sell love, or to extract it by force are not merely doomed to failure, but confused: If I were to report success in my attempt to fly without the help of a machine you would think that I am deluded or lying. But if I were to report success in buying someone’s love you should suspect that I fail to grasp the meaning of “love”. The motivation for loving someone – the process through which we get to respond with love to a particular individual – is part of what defines the complex of dispositions and emotions that we call “love”. So, for instance, if it turns out that we have been badly mistaken in our believes about a person we love, or that we have been drugged into feeling affection for her, we would think we don’t actually love her even if our subjective experience is identical to that of genuine loving. In the case of being drugged we may think that we are in the grip of an obsession rather than experiencing the genuine attraction of love. Philosophers usually follow the common-sense use of “love” in this respect. To take a recent example, Pettit (2015) defends an account of love as a good which is robustly demanding because it involves a stable disposition to care for the beloved (across a certain range of possible world) and also because this disposition must be particularized or relational, that is triggered by the individuality of the beloved. Unlike dutifulness, which an agent should be able to trigger independently from who the particular identity of those to whom she owes duties, the dispositions that are constitutive of the love for a particular individual can only be triggered by that particular individual. Or else, it fails to count as personal love. So (2) is best understood as a conceptual claim: for affection, care or attention to count as a genuine expression love, they should be responsive to the individuality of the beloved, and hence, at least to some extent, outside the lovers’ control. One may insist that this is a semantic, rather than a normative, point. Independent of what we call “love”, the relevant question seems to be whether we could achieve a fair distribution of what we find valuable about love, by better training our emotions and behavior or by using a “love drug” that induces love-like behavior. If we had the means to control love-like behavior, would a duty to do so achieve a just distribution of all that is valuable in love? I believe not, and here is an argument to that conclusion: (h) People need some affection, care or attention given spontaneously, out of inclination. What is the value of personal love? There are situations in which it seems, intuitively, that our yearning for personal love is so great that we cannot but feel disappointed when, instead of it, we receive mere dutiful love-like behaviour – even when the latter is as such praise-worthy. Consider Michael Stocker’s example of the hospital visit: “[S]uppose you are in a hospital, recovering from a long illness when Smith comes in. You are so effusive with your thanks and praise that he protests that he always tries to do what he thinks is his duty, what he thinks will be best. You at first think he is engaging in a polite form of self-deprecation. But the more you two speak, the more clear it becomes that he was telling the literal truth: that it is not essentially because of you that he came to see you, not because you are friends, but because he thought it his duty, perhaps as a fellow Christian or Communist or whatever, or simply because he knows no one more in need of cheering up and no one easier to cheer up.” (1976, 462) This story illustrates an important need that personal love fulfils: that some people display partialityix towards us – perhaps what Kant has called pathological inclination. To enjoy the partiality of a lover is part and parcel of the good of being loved by that person. Moral philosophers are usually interested in how partiality hinders our ability to comply with moral demands, which makes partiality regrettable. However, to the extent to which partiality is constitutive of personal love it also represents an important good. Being sometimes on the receiving end of loving partiality seems crucial for feeling valued as an individual. Some think that personal, and thereby partial, love is sufficiently important to override reasons of duty in some cases: Bernard Williams (1981, 18) described the person who wonders whether it is morally acceptable to save the life of his wife, rather than that of a stranger, as having “one thought too many”. Now, in cases where rescuers do not have one thought too many, their beloved may have two reasons to rejoice: that they were rescued, but also that they are so valuable to their rescuer that considerations of duty did not enter the rescuer’s deliberation. Going back to the example of children’s need to be loved by their main care-givers, it is indeed easy to make sense of a child complaining that the care, affection, attention and time she receives from her parents are given entirely out of duty. This child has reason to feel that something very important to her is missing. She might feel, for instance, that she is treated impersonally – that the affection she receives has nothing to do with her individuality. More generally, when people display love-like behavior towards us, but we suspect that they are acting out of mere duty, we may feel valued as human beings, but certainly not as particular individuals, and we have reason to regret the later. Personal love seems unlike any other good the distribution of which can be a matter of justice. When individuals receive due amounts of, say, food by agents whose behavior is entirely motivated by duty, there is no complaint left with regard to food distribution. But when they are at the receiving end of affectionate, caring, attentive behaviour entirely motivated by duty there remains a complaint: these individuals do not enjoy the full good of love. What is the good of personal love such that one fails to provide it if one’s love-like behavior fails to be, at least in partx, motivated by the reality of the beloved? It is plausible that personal love is so important to the beloved because it is an affirmation of her value. Some believe that love is an appraisal of the value of the beloved (Velleman 1999), others that it is a bestowal of value on the beloved (Singer 1994). In either case, in love etiology as well as phenomenology count. Love-like behavior that fails to be caused by the beloved cannot deliver this good. As Sven Nyholm (2015, 197) puts it: “Love is ... a sort of confirmation that we are, as we might put it, ‘lovable’ in the sense of being able to inspire or call forth such dispositions in another (namely, the lover). Part, but not the whole, of what our lover gives us in loving us, in other words, is this confirmation of us as really being able, or having the power, to inspire loving devotion in another.” Personal love can give such confirmation because, in being loved by someone, the beloved directly contributes to her lover’s wellbeing. In order to fully satisfy a person’s interest in being loved it is necessary that the lover’s own interest is, to some extent, involved in the loving relationship. Think, for instance, of a parent playing with her child: because she loves the child, the parent takes particular pleasure in watching the child have fun and this – the parent’s genuine delight – is part of what satisfies the child’s need for love. Or think about what it means to grieve for a loved one who died, as opposed to regretting the death of someone about whom you merely cared. In the latter case you may be sorry for all the good things that person will be missing out on, but not for yourself. By contrast, grieving for someone you love means to also perceive their death as a loss to yourself – to regret not only that the deceased cannot, say, laugh with and talk to other people anymore, but also that you cannot laugh with them and talk to them anymore. If one accepts step (h), one will accept that: (i) Therefore the affection, care or attention resulting exclusively from one’s self-controlled behaviour would not meet the specific need for love. It follows that: (j) meeting the need for love cannot be a matter of duty. Therefore: (2) There cannot be a duty to love. This last argument supplements the conceptual point with an axiological one: it states that “love” given entirely out of duty would not be love and that we have good reason to hold on to this concept of love because we need affection, care or attention that spring from our lovers’ partiality towards us; this requires some degree of spontaneous inclination towards us. If our emotional needs were more modest – if we could do with affection, care or attention of an impersonal, impartial kind, then, perhaps, a duty to meet this need could exist. Note that, if the argument of this section is correct, the familiar danger of conflating issues of feasibility with issues of desirability is not present in the case of love. A crucial test for deciding whether something is a matter of justice is to ask: “If we could bring that thing about, would we have a duty of justice to do it?” For instance, on purely luck egalitarian grounds, if we could, at no costs, shuffle eyes between the people with perfect sight and the blind, such that everybody ends up with one functional eye, we should do it. The test cannot be run with love if it is conceptually true that there cannot be a duty to love. If (2) is true, whatever one thinks about the relationship between feasibility and justice, one will want to reject the claim (1) that love is a matter of justice if one subscribes to claim (3) that all claims of justice are conceptually connected to claims of duty. It is to this last claim that I am now turning. Claim (3): All claims of justice are conceptually connected to claims of duty The third claim is almost universally endorsed. The most straightforward way of interpreting it is to say that something can be matter of justice only if it is some agent’s duty to bring that thing about. This interpretation would make claim (3) a good candidate for rejection, and rejecting claim (3) would dissolve the paradox. It seems false that something cannot be a matter of justice if nobody has a duty to do something about it: sometimes there is no agent whose duty it is to prevent or rectify a particular injustice, without this being a reason to think that the state of affairs in case is just. Examples include past injustices whose victims and perpetrators are dead such that no rectification is possible, nor is there any agent who may have a duty to compensate. (Imagine, in addition, that no living individual either benefits or suffers from the past injustice.) Assume there have been cases of one group enslaving or destroying another group that happened so far back in the past that no living person’s life is affected by it. In these cases some duties existed – and have been violated – in the past. One may speak, here, of past duties. There is a second type of case when something can be a matter of justice – at least according to an account of justice that is insensitive to feasibility constraints – and in which there are no duties, present or past. Think for instance of natural catastrophes that cannot be prevented or foreseen, and that cause irreversible damage. Or, similarly, of people dying very young from unpreventable and incurable diseases. Since the victims are dead, there are no duties of compensation. In all these situations some people’s lives went (much!) worse than others’, through no choice or fault of their own. In these cases, however, there exist what we might call counterfactual duties: if an agent could have done something for the victims that agent ought, as a matter of justice, to have done it. Therefore, the more precise interpretation of (3) is: “For something to be a matter of justice there should be a conceivable duty to bring that thing about.” That is, matters of justice are conceptually connected to duties: present, past or counterfactual. Yet, unless (2) is false, in the case of love there are no duties – present, past or counterfactual. The predicament of the person who needs love, and whose life goes worse than others’ because she lacks love is similar to that of people caught in a natural catastrophe which could not be averted in that it is not the result of human action and could not be avoided by human action. But here the similarity stops. If one could save the victim of a natural catastrophe, one ought to do it; by contrast, no change in the feasibility constraints that agents may face could generate a duty to love. This is not to deny that, sometimes, a failed duty is part of the causal history leading to the lack of love. One illustration of this claim is the situation of large numbers of children who grew up without parents in the 1980’s and 1990’s on Romanian streets. This situation was directly caused by policies banning contraception and abortion, and by the Romanian state’s failure to live up to its duty to provide adequate care for abandoned children. Presumably, in the absence of these policies and failures of justice some of the children deprived of parental love would not have been born, and many of those who have been born would have enjoyed adequate parental love. But certainly not all maldistributions of love flow from past failed duties: there is no reason to think that, had the Romanian state behaved justly towards all its children, they would have all enjoyed equal, or even enogh, love. A paradox? Unless one of the three claims can be shown to be false, a very unsettling conclusion follows: not merely that perfect justice is not feasible – something few would dispute – but that we cannot think about love and (at least some kinds of distributive) justice together in a consistent way. Which of the three claims should then be rejected? I believe we should not abandon the major premises supporting (1) easily. In particular, abandoning luck egalitarianism would entail accepting that sometimes unfairness is irrelevant to considerations of justice, and this is a high theoretical and possibly practical xi price. A better way to resist (1) would be to show that love as defined here is an important, but not unique, form of validation of our individuality. This is a theoretical possibility, but the burden of proof seems to be on whoever thinks that something other than personal love can deliver what I identified here as its non-instrumental good. I also believe, for reasons discussed at length in the second section, that we should continue to endorse (2). (2) could be rejected by showing that the good of love whose distribution is a matter of justice can be realised even when love-like behaviour is not motivated by the beloved’s individuality. This way out of the paradox is to deny that we actually need the kind of affirmation of our value that personal love gives us. Perhaps the importance we attach to our value as unique individuals is misguided. One may think that individuality itself is overrated and that human beings would be better off if, instead of love, they should seek impersonal and impartial affection (such as, for instance, Buddhist love or a secular version of Christian love). This possibility goes very much against the grain of our culture, which is deeply attached to the value of individuality, but possibly more coherent with alternative ways of valuing and therefore not impossible to make sense of. It is beyond the scope of this paper to examine whether we should let go of the value of individuality. If this were the case, then a different kind of “love” would be a matter of justice – a kind of love that is not personal and therefore is more amenable to control by the lover without loss of significant value. Some readers might be happy with this conclusion. The wide acceptance of the second claim, that love cannot be a matter of duty, explains why the very idea of having a duty to love is prima facie implausible. Yet, there are good reasons to believe that there is at least a duty to try to create the conditions for everybody to receive sufficient love. While duty does not require that everybody is loved, it does require that we try and create the social conditions conductive to flourishing loving relationships which exclude as few individuals as possible. There may be various ways of promoting inclusive loving relationships. For example it is plausible that we have a duty of justice to create the social conditions that allow as many children as possible to receive adequate, loving care from adults (Brighouse and Swift 2014). Kathleen Lynch, John Baker and others (2009) argued that personal love is one important metric of justice for children and adults alike, and argued for policies that would facilitate a more egalitarian enjoyment of loving relationships. Note that recognising a duty to create the social conditions in which loving relationships thrive, including as many people as possible is coherent with the claims (1) that love is a matter of justice and (2) that there cannot be a duty to love. We can imagine, and hope, that, were we to fulfil the duty to realise the conditions under which love could flourish, love would indeed be enjoyed to a more equal extent by different people – and, that, at the very least, nobody’s life would fall below the sufficiency threshold due to a lack of love. But such a lucky outcome would, however, not dissolve the paradox, since the paradox does not stem from an issue of feasibility but from one of conceivability. Unlike a duty to love, a duty to try to love is conceivable. Yet, even full compliance with such a duty cannot ensure that the non-instrumental good of love as defended here is delivered and therefore that full justice is realised. What we ultimately need is to be loved, not merely to live in a society organised to promote inclusive love relationships. And therefore one cannot reduce the claim (1) that enjoying love is a matter of justice to a less demanding claim that (1*) Attempts to create loving relationships is a matter of justice. Another answer to the question of love and justice that would fail to dissolve the paradox is to say that, in principle, those who do not enjoy their fair share of the non-instrumental good of love are owed compensation. In the case of other goods that ought to be distributed fairly, but which we cannot distribute fairly, we think compensation is the way of realising distributive justice. And indeed, some philosophers do contemplate the possibility of, and recommend, compensation of people unjustly deprived of love. Philippe van Parijs (1995) argued that we should compensate individuals unable to find spouses in what I take to be an attempt to recognise the non-instrumental good of long-lasting loving relationships and its import on matters of distributive justice. If love has the kind of importance I assume it has, adequate compensation for leading a loveless life is unavailable (Gheaus 2009). Whether or not one thinks that compensating people for lack of love is appropriate, the possibility of compensation is not at odds with the claim that love is a matter of justice – to the contrary, it confirms the claim. If enjoyment of love was not a matter of justice in the first place then surely no compensation could be due for the lack of this enjoyment. The solution I favour is to resist the claim in (3) that all matters of justice are also matters of duty and to embrace the possibility that there can be injustice without perpetrators and without conceivable duties of remedy. References Anderson, Joel and Axel Honneth. 2005. Autonomy, Vulnerability, Recognition, and Justice. In John Christman and Joel Anderson (eds.) Autonomy and the Challenges to Liberalism. New Essays, Cambridge University Press. Anderson, Elizabeth. 1999. What is the point of equality?, Ethics 109: 387-337. Benjamin, Jessica. 1988. The Bonds of Love: Psychoanalysis, Feminism und the Problem of Domination, New York: Pantheon. Brake, Elizabeth. 2011. Is Divorce Promise-Breaking?, Ethical Theory and Moral Practice (14):23– 39. Brighouse, Harry and Adam Swift. 2014. Family Values, Princeton University Press. Cohen, G.A. 2009. Rescuing Justice and Equality. Harvard University Press. Cowden, Mhairi. 2012. What's love got to do with it? Why a child does not have a right to be loved, Critical Review of International Social and Political Philosophy , 15(3): 325-345. Feinberg, Joel. 1973. Social Philosophy. Prentice Hall. Ferracioli, Luara. 2014. The State’s Duty to Ensure that Children Are Loved, Journal of Ethics & Social Philosophy 8(2). Frankfurt, Harry, 1999. Necessity, Volition and Love. Cambridge: Cambridge University Press. Gheaus, Anca. 2009. How much of what matters can we refistribute? Love, Justice and Luck, Hypatia 24(4): 68-90. Gheaus, Anca. 2013. The feasibility constraint on the concept of justice, Philosophical Quarterly 63(252): 445-464. Held, Virginia. 1993. Feminist Morality: Transforming Culture, Society and Politics. Chicago: University of Chicago Press. Hollway, Wendy. 2006. The Subject of care. London and New York: Routledge. Honneth, Axel. 1992. The Struggle for Recognition: The Moral Grammar of Social Conflicts, Cambridge, MA:MIT Pres. Kant, Immanuel. 1964. Groundwork of the Metaphysic of Morals, trans. H. J. Paton. New York:Harper&Row. Kant, Immanuel. 1996. The Metaphysics of Morals, trans. Mary Gregor, Cambridge:Cambridge University Press. Landau, Iddo. 2004. An argument for marriage”. Philosophy 79:475–481. Lanzenby, Hugh. 2010. One kiss to many? Giving, luck egalitarianism and other-affecting choice, Journal of Political Philosophy 18(3):271-286. Liao, Matthew. 2015. The Right to Be Loved. Oxford University Press. Liao, Matthew. 2006. The Right of Children to Be Loved, The Journal of Political Philosophy 14(4):420-440. Lynch, Kathleen, John Baker, Maureen Lyons et al. 2009. Affective Equality: Love, Care and Injustice. Basingstone: Palgrave Macmillan. Nussbaum, Martha. 2006. Frontiers of Justice: Disability, Nationality and Species Membership. Cambridge, Massachusetts: Harvard University Press. Nyholm, Sven. 2015. Love Troubles: Human Attachment and Biomedical Enhancements, Journal for Applied Philosophy 32(2):190-202. Pettit, Philip. 2015. The Robust Demands of the Good, Oxford: Oxford University Press. Rainbolt, George. 2016. S. Matthew Liao The Right to Be Loved, Notre Dame Philosophical Review https://ndpr.nd.edu/news/64561-the-right-to-be-loved/ Rawls, John, 1972. A Theory of Justice, Oxford: Oxford University Press. Richards, Norvin. 2010. The Ethics of Parenthood. Oxford: Oxford University Press. Ruddick, Sara. 1989. Maternal Thinking, Beacon Press. Singer, Irving. 1994. The Pursuit of Love. Baltimore, MD: Johns Hopkins University Press. Stocker, Michael. 1976. The Schizophrenia of Modern Ethical Theories, The Journal of Philosophy 73. van Parijs, Philippe. 1995. Real freedom for all: what (if anything) can justify capitalism? Oxford: Clarendon Press. Velleman, David. 1999. Love as a Moral Emotion, Ethics 109:338–74. Wiggins, David. 1998, Needs, Values, Truth. Oxford: Clarendon Press. Williams, Bernard. 1981. Persons, Character and Morality in Moral Luck. Cambridge: Cambridge University Press. Wolff, Jonathan and Avner De-Shalit. 2007. Disadvantage. Oxford: Oxford University Press. Young, Iris Marion. 1988. Five faces of oppression, The Philosophical Forum, XIX(4):270-290. https://ndpr.nd.edu/news/64561-the-right-to-be-loved/ i I am grateful, for useful feedback on predecessors this paper, to Monika Betzler, the late Jerry Cohen, Andre Grahle, Lisa Herzog, Tim Meijers, Serena Olsaretti, Shanna Slank, Adam Swift, Laura Valentini, audiences at numerous conferences and two referees and an editor of the Canadian Journal of Philosophy. This project has received funding from the Ramon y Cajal Programme from the Spanish Government and from the European Research Council (ERC) under the European Union’s Horizon 2020 Research and Innovation programme (Grant Agreement Number: 648610). ii Here “need” is the same as “morally significant interest”. I use the former because most of this paper is about emotional and relational goods, to which we usually refer in terms of needs rather than interests – especially when we speak about tokens rather than types of goods. iii Which may include facts about the relational history between lover and beloved. iv The two have at least a strong empirical connection; depending on the definition of love, the connection may be conceptual. I assume a simplified model of love that includes an ability to reciprocate, and that there is some truth to the aphorism attributed to Camus that “There is only misfortune in not being loved; there is misery in not loving.” I am thankful to a referee for drawing my attention to this aphorism. v Wiggins is not alone in defining needs in this way; see also Feinberg (1973, 111): “In a general sense to say that S needs X is to say simply that if he doesn’t have X he will be harmed” and Frankfurt (1999, 163): ”To assert that a person needs something means just that he will be inevitably harmed in one way or another – he will suffer some injury or loss – unless he has it”. vi I am grateful to an editor of this journal for encouraging me to elaborate on this point. vii Basic moral intuitions here can be divided. Some will see no injustice when individuals’ need for love is frustrated out of their own fault. Think, for instance, of Dickens’ character Scrooge (before his moral reformation) from A Christmas Carol: Scrooge’s life is wrecked because it is entirely devoid of love, and yet he elicits little sympathy, because he seems responsible for his predicament. At the same time, it is not counter-intuitive to say that being the kind of person that Scrooge is represents such a great misfortune that no one deserves its hardships. viii See also Kant (1964, 67). ix Spontaneous partiality seems to be constitutive to our understanding of love. This of course does not mean that love requires, and even less that it legitimises, any kind of partial behaviour. Partiality as an expression of love can and should be curbed by other desiderata. Note however that there are kinds of spontaneous partiality which are not under the agent's control and which can be very important to the well-being of those who are the recipients of it: selective attention is one example. x It is, of course, possible to love another in the sense of love defended here while at the same time adhering to duty in the expression of that love. xi I argue that holding on to an ideal of justice that is immune to feasibility constraints can help justify and motivate efforts to expand our feasibility horizon in Gheaus (2013). 
work_wrq2z4oidngu3fxykx76wn4fpu	----	Book reviews 313 survivorship, though both assume an appreciable know- ledge of statistics. The book provides a broad-brush outline of current applications of data processing methods in large-scale surveys, but some of the chapters detailing actual experience require careful reading to distill the principles involved. This volume will usefully fill a gap on epidemi- ologists' bookshelves and be of interest to many others concerned with medical surveys. M. R. ALDERSON Chemical Influences on Behaviour. Cibo Foundation Study Group No. 35. Edited by Ruth Porter and Joan Birch. (Pp. 221; £1-75.) London: Churchill. 1970. One of the many aspects of environmental health that has recently become a matter of concern is the effect that changes in our chemical environment may have on our mental health or behaviour. Industrial medical officers will remember madness in hatters and, more recently, difficulties in the dry cleaning industry. Otherwise acute and long-term disorders of behaviour in relation to industrial chemical hazards have not often been re- cognized. For this study group some 20 experts in toxicology, behavioural science, psychopharmacology, and the screening of new drugs and chemicals discussed this problem for two days. Each member ofthe group presented some aspect of the problem from his own point of view often backed by detailed experimental results. Each paper is followed by a discussion and there is further general discussion at the end of the meeting. Some of the contributions are lucid and highly informative, particularly those of Harris on inherited susceptibility to environmental hazards, and Dr. Steinberg's description of her experiments with amphetamines. Although interesting and in some instances thought-provoking, the work of the experimental behavioural scientists is so hedged about with jargon as to be difficult to understand. It is also apparent that this approach to the detection of chemical effects on behaviour is as yet in its infancy and it would be unreasonable to expect any reliable or useful results to emerge from this kind of work for some years to come. This is a book to browse through as a source of ideas, sometimes of worrying ideas (the effect of too much hygiene on the role of olfactory agencies in reproductive physiology, the effect of prolonged exposure to a low concentration of insecticides, and the effect of diet and urinary pH on the rate of clearance of toxic substances by the kidneys, for instance). But it is a book which raises more questions than it answers. Perhaps it will inspire further and more useful work in this field. I hope not all future work will be so elaborate (and presumably costly) and yet so entirely inconclusive as the study described by Joyce on the effect of alcohol on making decisions. P. C. ELMES Will Pickles of Wensleydale. By John Pemberton. (Pp. 224; illustrated; £2-50.) London: Bles. 1970. Anyone interested in the practice ofmedicine will be glad to read this book, with every aspect of medical practice in both Leeds and the pleasant dales of Yorkshire illustrated. Spanning over 100 years Dr. Pickles came from a medical family and was brought up with an accomplished father practising in an industrial practice in the heart of Leeds. His observations made on this style of practice are most vivid and the clink of medicine bottles can be imagined. After his training at Leeds University and a short career in the Royal Navy he resumed the endless round of locums before establishing himself as a partner in Wensleydale. The problem in those days, which to a large extent we have all forgotten, was not the ability to work with the existing partners of the practice but the ability to produce capital with which to buy a share. This was used to provide either a pension for the retiring doctor or his widow and was priced on its earning capacity like any other business. There were the days of heroic domiciliary midwifery and no doubt a high mortality rate. There were table-top appendicectomies, though this appeared to be before the day tonsils were thought to be worth while removing. This type of medicine was practised as of necessity because transport did not allow patients to be shipped to hospital in heated ambulances over the efficient road networks we have come to accept today. A surgeon would come over 60 miles for a domiciliary consultation and always travel with his instruments to perform the operation on the spot should it be necessary. There is a good picture of Dr. Pickles' eventual life in his country practice where the pace of living was much less than in a city. His knowledge of patients and their whereabouts, which at times caused embarrassing admissions, allowed him'to start his work on epidemiology. By his astute observations and careful clinical notes, written up between evening surgery and supper, he was able to determine the precise behaviour of infective hepatitis, then known as catarrhal jaundice, to the incubation period and its signs. In addition he described epidemic pleurodynia simultaneously with a practitioner on Bornholm Island and showed the infective nature of this painful complaint. By these observations pains- takingly recorded he eventually achieved world-wide recognition for his work and lectured on this subject with authority. It was fitting that he should become the first President of the Royal College of General Practitioners whose work is centred around the family doctor who holds a unique position with an individual to this day. P. M. 0. MASSEY Work, Creativity and Social Justice. By Elliott Jaques. (Pp. 262; £2-50.) London: Heinemann. 1970. Professor Elliott Jaques has worked with the Glacier Metal Company as a social-analytic consultant for over 20 years and the books he has written on the research projects with which he has been involved are well known. He has, since 1966, been Head of the School of Social Sciences at Brunel University. This volume is a collection o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://o e m .b m j.co m / B r J In d M e d : first p u b lish e d a s 1 0 .1 1 3 6 /o e m .2 8 .3 .3 1 3 -b o n 1 Ju ly 1 9 7 1 . D o w n lo a d e d fro m http://oem.bmj.com/ 314 Book reviews of 14 papers, written by him over the past 15 years, dealing with a wide range of topics such as industrial work, management, economics, education, the meaning of work, and problems of groups and of individuals. The studies that Jaques describes, the conclusions he reaches, and the ideas he puts forward, are based on the application of the findings of the social sciences and of psychology; it is this that gives the papers on these varied subjects their particular quality of fascination and, at times, excitement. One theme which runs through the papers is that it is in a just environment that creativeness and the capacity for work find their optimum conditions for expression. That is the reason for bringing them together in this book, and the aim throughout is to clarify thinking and to define concepts. The papers were prepared for different audiences; thus, some will appeal more to one group of readers, whereas others will be of greater interest to a different group. Some, but by no means all, require a basic knowledge of psycho-analytic concepts, and for those without this, some of the papers will, in places, be hard to follow. Most, however, should be ofchallenging interest to anyone concerned with organizations, their structure and their management, and the interaction between organizations and the people who work in them. Several of the papers are on topics which are of immediate concern to the industrial medical officer. In the first, for example, Jaques considers the human consequences of industrialization, and in particular the highly complex relationship of superior and subordinate. In a paper entitled 'Stress', he identifies some stress-inducing situations and considers the problems of the balance between a person's capacity for work, the level of work he is carrying, his financial reward for that work, and his rate of career progress. Although 'Psycho-analysis and the Current Economic Crisis', is concerned with the crisis of the mid-'50s, it is equally relevant to the present one and he introduces his original thinking on equitable payment. In the paper 'On being a Manager' he tackles the complicated problem of what this really means. 'Death, and the Mid-life Crisis' is a classic on some aspects of problems of middle age. It would have been helpful if at the beginning of each paper there had been a note indicating when it had been written and for which audience or journal it had been prepared; also it would have been helpful if the papers had been collected in sequence, which would have indicated the development of Professor Jaques' thinking. These are minor criticisms of an extremely valuable collection of essays. NOTICES III International Competition for the Prevention of Silicosis-1970 The National Institute for Accident Prevention announces a competition for the year 1970 awarding a prize for original, unpublished work on 'New medical, technical or medical-technical contributions to the prevention of silicosis'. Participation in the competition is open to all nation- alities, institutions or industrial concerns. The prize amounts to 4,000,000 Italian Lire subdivided into two prizes of 2,000,000 Lire each. For further information write to the Ente Nazionale per la Prevenzione degli Infortuni, Direzione Generale, Premio Internazionale Silicosi ENPI, Via Alessandria, Nr. 220/E-00198, Rome (Italy). Short Course on Laser Safety The Medical Laser Laboratory and the Office of Con- tinuing Medical Education of the University of Cincinnati announces a special short course on safe laser use to be held at the University of Cincinnati on 2-6 August 1971. For further information please contact Mr. R. J. Rockwell, Laser Laboratory, Children's Hospital Research Foundation, Cincinnati, Ohio 45229. IV International Pneumoconiosis Conference The IV International Pneumoconiosis Conference or- ganized by the International Labour Office in collabora- tion with the Ministry of Labour of Rumania will be held at the Palace of the Republic in Bucharest on 27 Sep- tember to 2 October 1971. Further information may be obtained from: The Organizing Committee for the IV International Pneumoconiosis Conference, Ministerul Muncii, Str. Scaune, no. 1-3, Bucharest, Rumania. A.M.A. Congress on Occupational Health The 31st annual A.M.A. Congress on Occupational Health will be held at Jackson Lake Lodge in Grand Teton National Park, Wyoming on 29-30 August, 1971. For further information please write to the American Medical Association, 535 North Dearborn Street, Chicago, Illinois 60610. o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://o e m .b m j.co m / B r J In d M e d : first p u b lish e d a s 1 0 .1 1 3 6 /o e m .2 8 .3 .3 1 3 -b o n 1 Ju ly 1 9 7 1 . D o w n lo a d e d fro m http://oem.bmj.com/ 
work_wvwfe2vaqnh7tcu2kyd5nee7om	----	Microsoft Word - justice comm vs indus CJLS_SERVAL 1 Article accepté aux fins de publication. Il sera présenté sous une forme révisée, à la suite de l’évaluation des pairs ou de suggestions rédactionnelles de la part de Cambridge University Press, dans la Revue Canadienne Droit et Société/Canadian Journal of Law &Society publiée par Cambridge University Press, et sera accompagné d’un avis de droit d’auteur au nom du détenteur de ce droit (Cambridge University Press ou l’organisme parrain, le cas échéant). Renseignements bibliographiques : FirstView Article/ September 2015, pp 1 - 23 DOI: 10.1017/cls.2015.22, Published online: 14 September 2015 Link to this article: http://journals.cambridge.org/abstract_S0829320115000228 2 Une justice plus commerciale qu’industrielle ? - Comparaison des attentes d’une « bonne justice » en Suisse1 1. Introduction : L’administration2 de la sphère judiciaire est indissociable de ses activités juridiques 3. En effet, les modes de gestion de la justice en tant qu’organisation 4 influencent inévitablement le travail des différents acteurs du tribunal 5 , et in fine la qualité de la justice. Il est donc essentiel d’étudier l’introduction de logiques et d’instruments managériaux au sein du 3ème pouvoir, marqué par une forte présence de professionnels (juges, juristes plus généralement) qui ne sont pas forcément ouverts à ces méthodes6. De plus, les techniques managériales ont tendance à « déspécifier » la justice, la faisant passer d’une institution dont le fonctionnement était « distancié », « à part »7 à une organisation qui est censée tenir des délais8 ou encore être prévisible9, avec comme corollaire un impact profond sur les attentes auxquelles le pouvoir judiciaire doit faire face de la part de ses différentes parties prenantes (citoyens, justiciables, avocats, médias, etc.). S’il est vrai que la célérité et les délais constituent une préoccupation judiciaire depuis le début de la modernité10, il y a aujourd’hui une volonté d’accélérer le temps par des procédures plus rapides et plus simples 11 suite au nombre croissant d’affaires que doit traiter l’institution. En outre, on observe une emprise managériale croissante sur le 3ème pouvoir, l’attention portée à la gestion, ainsi que la légitimité qui en découle, ayant énormément cru ces dernières années. Ce mouvement de fond risque de fortement transformer 1 Cet article est une contribution du projet « justizforschung » soutenu par le Fonds national suisse de la recherche scientifique (FNS). Pour plus d’informations, veuillez consulter : www.justizforschung.ch 2 Les termes “administration”, “gestion” et “management” de la justice seront utilisés comme des synonymes et s’entendent, à distinguo des activités juridiques du tribunal, comme l’ensemble des méthodes et techniques touchant la conduite stratégique des tribunaux (stratégie, objectifs, systèmes d’évaluation et controlling), l’organisation (structure, répartition des tâches, définition des responsabilités, charge de travail, système qualité), la gestion des ressources supportant l’activité juridique (ressources humaines, financières, informations, bâtiments, etc.) ainsi que l’administration opérationnelle des activités d’un Tribunal (par ex. convocation, organisation des audiences, etc.) -Lienhard, A., D. Kettiger and D. Winkler (2012). "Status of Court Management in Switzerland." International Journal For Court Administration(Special Issue): 41-67. 3 Philip LANGBROEK, «Towards a socially responsive judiciary? Judicial independence and accountability in the constitutional contexts of Italy, the USA and Netherlands», in Benoît FRYDMAN et Emmanuel JEULAND, Le nouveau management de la justice et l'indépendance des juges, Paris: Dailloz, 2011, p. 63-86. 4 Évelyne SERVERIN, «Comment l'esprit du management est venu à l'administration de la justice», in Benoît FRYDMAN et Emmanuel JEULAND, Le nouveau management de la justice et l'indépendance des juges, Paris: Dalloz, 2011, p. 37-54. 5 Loïc CADIET, «La théorie du procès et le nouveau management de la justice: processus et procédure», in Benoît FRYDMAN et Eammanuel JEULAND, op.cit., p. 111-129. 6 -Bezes, P., D. Demazière, T. Le Bianic, C. Paradeise, R. Normand, D. Benamouzig, F. Pierru and J. Evetts (2011). "New Public Management et professions dans l’État: au-delà des oppositions, quelles recompositions?" Sociologie du travail 53(3): 293-348. 7 -Jean, J.-P. (2000). Justice. Quels modes d'administration et d'évaluation pour un service public complexe qui doit rendre des décisions en toute indépendance? Deveoping a Public Administration Perspective on Judicial Systems in Europe. M. Fabri and P. Langbroek. Amsterdam, IOS Press. 14: 47-59. 8 Cécile VIGOUR, «Justice : l'introduction d'une rationalité managériale comme euphémisation des enjeux politiques», Droit et Société, 63, (2), 2006, p. 425-455. 9 Soraya AMRANI-MEKKI, «Le principe de célérité», Revue française d’administration publique, 125, (1), 2008, p. 43-53. 10 -Beccaria, C. (2009). Dei delitti e delle pene (1764), ENS Editions. 11 Tchakaloff, Christophe cité par -Fabri, M. and P. Langbroek (2000). Deveoping a Public Administration Perspective on Judicial Systems in Europe. The challenge of change for judicial systems: developing a public administration perspective. M. Fabri and P. Langbroek. Amsterdam, IOS Press. 14: 1-20. 3 la culture 12 du pouvoir judiciaire, jusqu’ici peu étudiée 13 et d’entrainer une complexification des valeurs de ce dernier. De plus, l’hyper-bureaucratisation du droit et l’exacerbation de sa « rationalité formelle » au sens de Weber 14 pourrait compromettre le respect de certaines valeurs fondamentales pour le droit moderne. La nouvelle manière de penser en termes de coûts, performance et résultats a même fait dire à Knoepfel15 en 1995 -soit au début de l’introduction de la Nouvelle Gestion Publique (NGP) en Suisse- que la tradition démocratique helvétique serait ébranlée si la (NGP) était introduite dans tous les secteurs de l’administration. Au sein du pouvoir judiciaire, où les magistrats sont en règle générale élus par le parlement cantonal ou par le peuple, on peut raisonnablement penser que ces derniers adapteront leurs comportements afin de mieux répondre aux attentes de ceux qui les élisent, tout en défendant leurs valeurs professionnelles. Selon Fabri et Langbroek (2000), les professionnels de la justice au niveau européen sont confrontés à l’introduction de nouvelles valeurs organisationnelles suite à l’arrivée de la NGP, des valeurs que les politiciens sont prêts à soutenir si elles contribuent à une efficacité accrue de l’appareil judiciaire (« value for money)16. Si ces nouvelles valeurs et modalités de gestion n’ont pas pour vocation de changer les finalités de la justice, elles peuvent influencer les fondements de sa légitimité et les qualités attendues d’une « bonne justice », en déplaçant par exemple le centre de l’attention (des professionnels) vers des notions telles que l’efficacité et l’efficience jusqu’ici peu usuelles dans les tribunaux. Tout un pan de la littérature disserte d’ailleurs sur le trade off entre les valeurs constitutionnelles d’indépendance et d’impartialité d’une part, et leur obligation d’ « accountability »17 et d’efficience18 d’autre part, mises en avant par la NGP. D’autres auteurs soulignent le risque de déplacement des buts d’une organisation, lorsque des outils (par ex. informatiques) permettant d’implémenter les principes de la NGP sont introduits19. Des juges estiment même que la pression liée à la productivité serait incompatible avec 12 Nous comprenons ici la culture organisationnelle comme'un système de perceptions, de significations et de croyances au sujet de l'organisation qui facilite la création de sens commun parmi un groupe de personnes partageant des expériences communes et qui guide le comportement individuel au travail » : -Bloor, G. and P. Dawson (1994). "Understanding Professional Culture in Organizational Context." Organization Studies 15(2): 275- 295., p. 276. 13 Hormis certaines études principalement américaines: -Church, T. W. (1985). "Examining Local Legal Culture." American Bar Foundation Research Journal 10(3): 449-518, -Ostrom, B., C. Ostrom, R. Hanson and M. Kleiman (2005). The Mosaic of Institutional Culture and Performance: Trial Courts as Organizations. Philadelphia, Temple university Press, -Brown, K. J. (2006). Court Culture: Measuring and Analysing the Impact of Judicial/Administrative Culture in the 16th Judicial Circuit Court. Kansas City, Missouri, Institute for Court Management, -Lepore, L., C. Metallo and R. Agrifoglio (2012). Court management in the Justice System: A Performance Evaluation Model. EGPA. Bergen, Norway. 14 -Weber, M. (1995). Economie et société (1921). Paris, Pocket. 15 -Knoepfel, P. (1995). New Public Management: Vorprogrammierte Enttäuschungen oder politische Flurschäden?–Eine Kritik aus der Sicht der Politikanalyse. Umbruch in Politik und Verwaltung. Ansichten und Erfahrungen zum New Public Management in der Schweiz. T. Hablützel, T. Haldemann, K. Schedler and K. Schwaar. Bern, Haupt: 453-470. 16 -Fabri, M. and P. Langbroek (2000). Deveoping a Public Administration Perspective on Judicial Systems in Europe. The challenge of change for judicial systems: developing a public administration perspective. M. Fabri and P. Langbroek. Amsterdam, IOS Press. 14: 1-20. 17 (Schmitt, 1928 ; Kägi, 1937 ; Vile, 1967 ; Shapiro, 1981) 18 -Conseil De L’europe (2010). "Recommandation CM/Rec(2010)12 du Comité des Ministres aux Etats membres sur les juges : indépendance, efficacité et responsabilités ". 19 -Contini, F. (2000). Reinventing the Docket, Discovering the Database. The Divergent Adoption of Information Technology in the Italian Judicial Offices. Deveoping a Public Administration Perspective on Judicial Systems in Europe. M. Fabri and P. Langbroek. Amsterdam, IOS Press. 14: 253-267. 4 la fonction de juger une affaire complexe et parlent de « sous-justice à la chaîne »20 en évoquant certaines pratiques pénales simplifiées. Avant d’analyser l’étendue des phénomènes ci-dessus au sein de la justice suisse par l’entremise de la notion de « bonne justice »21, il convient de définir succinctement la NGP et la place que celle-ci occupe au sein du pouvoir judiciaire helvétique. Depuis le début des années 1990, le courant de la NGP a beaucoup influencé les pratiques de management au sein de l’administration, au niveau international. Les idées essentielles caractérisant ce mouvement, largement importées du monde commercial, et destinées à améliorer l’efficience et l’efficacité des administrations publiques comprennent entre autres : les contrats de prestations, l’orientation client et les systèmes qualité, ainsi qu’une gestion des ressources humaines tournée vers la performance et le développement des compétences. Cette déferlante a également fini par atteindre les organisations judiciaires helvétiques 22 (ainsi qu’au Canada d’ailleurs) 23 , avec un retard d’une décennie environ par rapport aux premières expérimentations menées dans les autres services de l’Etat24. Le point de départ des récentes réformes de la justice date de la modification de la Constitution de 1999. Le but était alors d’unifier les procédures civile et pénale, et de par l’obligation faite aux cantons d’instituer des autorités de recours, d’alléger la charge du Tribunal Fédéral (TF), ultime instance de recours. L’Arrêté fédéral du 8 octobre 199925 prévoit par exemple de limiter la possibilité de faire appel au TF à une valeur litigieuse minimale ainsi qu’ « une procédure simplifiée pour les recours manifestement infondés ». Des mesures ont également été prises dans le but de diminuer les dépenses des cantons liées à la justice, comme la possibilité d’instituer des autorités judiciaires communes26, tout en laissant à ces derniers le soin d’organiser et d’administrer la justice comme ils l’entendent. Jusqu’à présent, les principes de la nouvelle gestion publique ont été testés dans les tribunaux bernois mais il s’agit plus d’une exception, la grande majorité des cours du pays ayant décidé de ne pas appliquer de tels préceptes27, indiquant une première résistance à cette approche. A bien des égards, la NGP s’est développée comme une critique des principes de l’administration bureaucratique28). Elle propose des instruments et techniques qui véhiculent des nouvelles valeurs et peuvent engendrer un véritable chamboulement culturel : si l’on suit sa logique, les tribunaux devraient adopter une culture plus commerciale, axée sur le leadership, la prise de risque, l’orientation 20 -Jean, J.-P. Ibid.Justice. Quels modes d'administration et d'évaluation pour un service public complexe qui doit rendre des décisions en toute indépendance?: 47-59. 21 Nous utilisons la notion de « bonne justice » afin d’estimer l’importance que les valeurs managériales prennent au sein de la justice suisse de nos jours. Cela ne signifie pas que la NGP changera inévitablement les finalités de la justice. Par contre, nous pensons qu’une analyse de la proportion que les arguments liés au management prennent dans le discours des acteurs de la justice quand ils sont interrogés sur la finalité de celle-ci nous donne un bon aperçu de la prégnance de la NGP dans la justice. 22 David GIAUQUE et Yves EMERY, Repenser la gestion publique, Lausanne: Presses polytechniques et universitaires romandes, «coll. Le savoir suisse», 2008. 23 -Fortier, I. (2010). "La modernisation de l’État québécois : la gouvernance démocratique à l’épreuve des enjeux du managérialisme." Nouvelles pratiques sociales 22(2): 35-50. 24 Daniel KETTIGER, Wirkungsorientierte Verwaltungsführung in der Justiz, Bern: Société suisse des sciences administratives, 2003. 25Art. 191, ASSEMBLÉE FEDERALE, «Arrêté fédéral relatif à la réforme de la justice», Assemblée fédérale de la Confédération suisse, 1999, p. 3148-3150. 26 Art. 191b, al. 2, ibid. 27 Andreas LIENHARD, Daniel KETTIGER et Daniela WINKLER, «Status of Court Management in Switzerland», op.cit. 28 -Bezes, P. (2007). "Construire des bureaucraties wébériennes à l'ère du New Public Management?" Critique internationale 35(2): 9-29. 5 vers les résultats et la concurrence comme sources d’innovations organisationnelles29. A priori, ces nouvelles tendances ne correspondent pas vraiment au fonctionnement des tribunaux, posant la question fondamentale de leur cohabitation avec les principes et valeurs qui sont les fondements du pouvoir judiciaire et des professionnels qui y œuvrent, la NGP cherchant à « susciter l’adhésion des professionnels aux cultures internes des organisations »30. Ceci d’autant plus que la résistance au changement de la part des magistrats se renforce lorsque les réformes sont orientées vers des questions managériales qui leurs échappent31. Néanmoins, ce ne sont pas uniquement les juges qui sont affectés par les méthodes managériales mais bien l’ensemble des acteurs du pouvoir judiciaire. Ainsi, le but de cet article est d’identifier les qualités d’une bonne justice en Suisse, telles que définies par les différents acteurs qui forment le tribunal au sens large (juges, gestionnaires de tribunaux, avocats, journalistes, politiciens) et de vérifier si ces qualités peuvent coexister avec les valeurs véhiculées par le monde managérial (NGP), le cas échéant d’évaluer la manière dont elles cohabitent (hybridation, dominance des unes sur les autres etc.). Ce questionnement se justifie d’autant plus que les politiques qui tentent d’implanter des réformes liées aux doctrines et philosophies de la NGP font l’objet de contestations et de mobilisations collectives dans de nombreux secteurs dont la justice32. Pour ce faire, nous avons défini trois questions de recherche : • Quelles sont les attentes principales auxquelles se réfèrent différents groupes d’acteurs lorsqu’ils évoquent ce que représente pour eux une bonne justice ? • Les juges avec responsabilité managériale 33 ont-ils les mêmes attentes envers une bonne justice que leurs collègues exempts de tâches de gestion ? • A quels univers valoriels ces juges font-ils appel lorsqu’ils décrivent la notion de bonne justice? Tout d’abord nous abordons les relations entre justice et société, avant de nous concentrer sur le rapport relation entre justice et management. Nous présentons ensuite les arguments évoqués par les acteurs de la justice suisse lors d’un programme d’interviews réalisés au cours de l’année 2013, afin d’en extraire les attentes principales pouvant être associées à la notion de bonne justice ainsi que leur compatibilité éventuelle avec un management « moderne » des tribunaux. 29 Janet V. DENHARDT et Robert B. DENHARDT, The New Public Service : Serving, Not Steering, Armonk, NY: M.E.Sharpe, 2003. 30 -Bezes, P., D. Demazière, T. Le Bianic, C. Paradeise, R. Normand, D. Benamouzig, F. Pierru and J. Evetts (2011). "New Public Management et professions dans l’État: au-delà des oppositions, quelles recompositions?" Sociologie du travail 53(3): 293-348., p.312 31 Nadia CARBONI, «Il New Public Management nel Settore Giudiziario», 2012, p. 5-14. 32 -Bezes, P., D. Demazière, T. Le Bianic, C. Paradeise, R. Normand, D. Benamouzig, F. Pierru and J. Evetts (2011). "New Public Management et professions dans l’État: au-delà des oppositions, quelles recompositions?" Sociologie du travail 53(3): 293-348. 33 Le juge est considéré comme ayant une responsabilité managériale s’il avait des responsabilités de gestion dans le poste qu’il occupait lorsque l’entretien a été mené, ou dans une précédente fonction. Par responsabilités de gestion, on entend toute responsabilité autre que juridique assumée par un juge au sein du tribunal. Il s’agit principalement des premiers présidents qui assument la direction générale du tribunal ou les juges qui siègent dans les diverses commissions d’administration/gestion des autorités judiciaires. Parmi les rôles attribués à ces commissions: l’affectation des juges suppléants aux différentes cours, l’adoption du projet de budget et des comptes, l’engagement de greffiers, la gestion de la formation continue du personnel etc. 6 2. Revue de littérature 2.1 Société et attentes vis-à-vis de la justice Le droit est inextricablement lié à la société dans laquelle il évolue puisqu’il découle du politique et confère une légitimité « aux aspirations et aux valeurs de la société »34. De plus, les jugements sont l’un des moyens qu’un système gouvernemental, et par extension la société dans laquelle il évolue, possèdent pour affirmer leurs valeurs centrales35. Ce lien entre droit et société impacte certainement le fonctionnement de la justice. Il est donc utile de s’intéresser aux différentes conceptions sociétales de la qualité d’une bonne justice même s’il paraît extrêmement difficile d’arriver à un consensus concernant les objectifs assignés au système judiciaire ou les facteurs qui déterminent sa performance36. Bien que l’importance croissante du juridique soit vue comme « un des événements marquants de la vie de toutes les sociétés démocratiques ces dernières années »37, un manque de recherche se fait sentir en Suisse, mais aussi à l’étranger, au sujet de l’interaction entre le fonctionnement du système judiciaire et la société. Ce vide n’est pas anodin car la légitimité du management de la justice est mise en doute puisque celui-ci ne se préoccupe pas de principes fondamentaux des ordres juridiques tels que la liberté, l’égalité et la solidarité et prolifère sans contrôle démocratique 38 . De nouvelles approches basées sur des évaluations qualitatives ou systémiques apparaissent donc pour éviter les excès de la rationalité managériale39, l’application stricte des règles d’économie de marché au système judiciaire pâtissant déjà d’un certain désenchantement40. De nos jours, les citoyens estiment avoir droit non seulement à une bonne justice mais également à son bon fonctionnement41, la bonne justice étant associée autant à sa finalité stricto-sensu qu’à son bon fonctionnement. La justice doit dorénavant conquérir une certaine légitimité 42 car l’opinion publique ne considère plus l’autorité et les institutions judiciaires traditionnelles comme allant de soi43. L’accentuation de l’attention médiatique portée à la justice 44 a par exemple rendu le juge publiquement responsable de son travail, ce dernier devant parfois justifier son éthique et sa performance45. Une « bonne » justice semble ainsi devoir montrer un certain nombre de qualités. Des travaux de recherche de la première moitié du 20ème siècle font déjà ressortir une tendance à propos 34 Luzius MADER, «Introduction», in Andreas LADNER, Jean-Loup CHAPPELET, Yves EMERY, Peter KNOEPFEL, Luzius MADER, Nils SOGUEL et Frédéric VARONE, Manuel d'administration publique suisse, Lausanne: Presses polytechniques et universitaires romandes, 2013, p. 217. 35 James SPIGELMAN, «Judicial accountability and performance indicators», Civil Justice Quarterly, 21, 2002, p. 18. 36 Eric ALT et Marie-Astrid LE THEULE, «La justice aux prises avec l'éthique et la performance», Pyramides, 22, 2012, p. 137-159. 37 Antoine GARAPON, Bien juger. Essai sur le rituel judiciaire, Paris: Odile Jacob, 2000, p.225. 38 Benoît FRYDMAN, «Le management comme alternative à la procédure», in Benoît FRYDMAN et Emmanuel JEULAND, Le nouveau management et l'indépendance des juges, Paris: Dailloz, 2011, p. 101-110. 39 ALT et LE THEULE, op.cit. 40 Philip LANGBROEK, «La réorganisation du système judiciaire des Pays-Bas», Revue française d’administration publique, 125, (1), 2008, p. 67-79. 41 VIGOUR, op.cit. 42 Ibid. 43 Arie-Jan KWAK, «Legal professionals under pressure: Legal professional ideology and New Public Management», in Mirko NOORDERGRAAF et Bram STEIJN, Professionals under Pressure: The Reconfiguration of Professional Work in Changing Public Services, Amsterdam: Amsterdam University Press, «Care & Welfare», 2013, p. 91-107. 44 Antoine VAUCHEZ, «Le chiffre dans le "gouvernement" de la justice», Revue française d’administration publique, 125, (1), 2008, p. 111-120; Philip LANGBROEK, «Towards a socially responsive judiciary? Judicial independence and accountability in the constitutional contexts of Italy, the USA and Netherlands», in Benoît FRYDMAN et Emmanuel JEULAND, op.cit., p. 63-86. 45 ALT et LE THEULE, op.cit. 7 des préoccupations concernant la justice suisse qui semble assez proche de celle que nous connaissons aujourd’hui, particulièrement au sujet de son activité juridique46. Ainsi, en 1907, Chessex47 parle d’un « état désastreux » du système judiciaire et du désir de réforme de certains, car une bonne organisation de la justice est « pour un pays un élément essentiel de vitalité ». En termes de compétences, il ne réclame pas de capacités managériales mais demande que l’on rende obligatoires les « connaissances juridiques »48 pour tous les juges. Il parle aussi du pouvoir d’appréciation dont les tribunaux ne devraient pas abuser car « un Code doit poser des règles fixes, afin que les justiciables y trouvent les renseignements désirés et que les Tribunaux ne soient pas tentés de dépasser leurs compétences »49. L’auteur dit plus loin que, suite au développement du canton (de Vaud), les moyens à disposition pour régler les différends ne suffisent plus car « vu la complexité des faits, la variété des procès, les juges et les parties demandent à être mieux renseignés »50. Un autre exemple nous est fourni en 1943 par Hofmann qui affirme, en parlant du système de recours « qu’il convient d’une part d’assurer aux justiciables un maximum de garanties contre les erreurs et les irrégularités du juge » mais aussi qu’il est « pratiquement nécessaire d’autre part, de ne pas surcharger de travail les tribunaux de seconde instance » 51. La différence majeure avec les demandes faites de nos jours au système judiciaire est l’absence de référence directe à l’efficience52 et à une justice orientée vers les résultats ou les clients alors que ces principes sont aujourd’hui à la base de la légitimité de l’Etat et doivent même être « ancrés expressément au niveau constitutionnel »53. Mais qu’en est-il de la réaction des juges face à cette évolution ? De manière générale, les magistrats suisses estiment que leur liberté s’est vue renforcée ces dernières années grâce à une plus grande autonomie dans la gestion administrative des tribunaux54, alors que normalement la tradition suisse accorde une souveraineté minimale au pouvoir judiciaire dans l’administration de la justice 55 . Cependant, la récession économique a transféré l’attention vers l’efficience de la justice, la simplification des procédures en est un exemple criant56. Dans cette optique, les organisations du pouvoir judiciaire introduisent un peu partout différents systèmes de management, en partant de l’idée qu’elles sont des fournisseurs de service57. Toutefois, le travail des juges n’est pour l’instant évalué que de manière informelle en Suisse58. 46 André VALLOTTON, «Excès de pouvoir et déni de justice: Etude comparative de la jurisprudence du Conseil d'Etat français et du Tribunal fédéral suisse», Université de Lausanne, Thèse de Licence et de Doctorat, 1954. 47 Lucien CHESSEX, «Du recours en réforme en Droit Vaudois», Université de Lausanne, Thèse de Doctorat, 1907, p.149. 48 Id., p.151. 49 Id., p.155. 50 Id., p.156. 51 Pierre HOFMANN, «Le recours en nullité de la procédure civile vaudoise: étude théorique et pratique», Université de Lausanne, Thèse de Doctorat, 1943, p.226. 52 Nous entendons dans cet article la notion d’efficience et d’efficacité comme « une justice qui doit utiliser ses ressources avec parcimonie et en retirer le plus grand bénéfice possible », voir annexe 1. 53 Andreas LIENHARD, «Droit constitutionnel et administratif», in Andreas LADNER, Jean-Loup CHAPPELET, Yves EMERY, Peter KNOEPFEL, Luzius MADER, Nils SOGUEL et Frédéric VARONE, Manuel d'administration publique suisse, Lausanne: Presses polytechniques et universitaires romandes, 2013, p. 224. 54 Regina KIENER, «Judicial Independence in Switzerland», in Anja SEIBERT-FOHR, Judicial Independence in Transition, Heidelberg: Springer, «Beiträge zum ausländischen öffentlichen Recht und Völkerrecht», 2012, p. 403-445. 55 Etienne POLTIER, «L'organisation et le fonctionnement interne de l'ordre judiciaire et des tribunaux», Pratique Juridique Actuelle, 2011, p. 1017-1036. 56 Frans VAN DIJK et Horatius DUMBRAVA, «Judiciary In Times Of Scarcity: Retrenchment And Reform», International Journal For Court Administration, 5, (1), 2013, p. 15-24. 57 A. Lienhard, «Oberaufsicht und Justizmanagement», Justice, (1), 2009, p. 1-21. 58 -(Ccje), C. C. D. J. E. (2014). Avis no 17 (2014) sur l'évaluation du travail des juges, la qualité de la justice et le respect de l'indépendance judiciaire. Strasbourg, Conseil de l'Europe. 8 2.2 Le management peut-il être au service de la justice ? Le management pourrait contribuer à la légitimité des juges, et par extension à celle de la justice. Il est même considéré par certains comme un des éléments les plus prometteurs parmi les efforts entrepris pour donner une nouvelle orientation de la justice envers la société59, les bons jugements n’étant plus suffisants à légitimer le système judiciaire60. Pour autant, il ne doit pas être appliqué uniquement pour répondre à des impératifs financiers61. On observe malgré tout une importance croissante des chiffres dans la justice. Les tribunaux publient régulièrement des résultats de performance car ils se doivent d’être des organisations « ouvertes », orientées vers l’extérieur62 et totalement transparentes envers les médias 63 . A Genève par exemple, le Procureur Général, qui est également le président de la commission de gestion du pouvoir judiciaire, rend compte chaque année de la situation de ce dernier à la presse en articulant, entre autres, des chiffres concernant l’évolution des charges de fonctionnement, les revenus, le nombre d’affaires traitées et les postes permanents64. Ceci fait dire à Marti qu’ «avec une mentalité commerciale, le pouvoir judiciaire se sent obligé de démontrer qu’il ne coûte rien au contribuable, mais qu’il rapporte à la collectivité autant qu’il coûte »65 Poussé à son paroxysme, le managérialisme consiste à introduire des outils de management « pour eux-mêmes en en perdant précisément le sens » 66 , alors que le but de la managérialisation des organisations publiques devrait être, au contraire, de re-légitimer ces dernières67. Le résultat de la maximisation de l’efficience, qui tente de satisfaire le justiciable-utilisateur, en focalisant trop sur la manière d’atteindre les résultats au dépend de l’efficacité, serait une perte de crédibilité vis-à-vis des citoyens pour qui la « caractéristique fondamentale de l’action publique (est) la défense de l’intérêt public »68. Il faudrait donc se concentrer sur l’efficacité, soit satisfaire les besoins du citoyen en termes d’accès aux tribunaux par exemple, au lieu de se centrer sur l’efficience, ce qui apporterait une légitimité supplémentaire à la justice69. Actuellement, il semble que la tendance soit à l’inverse70 dans la justice71, l’efficacité étant trop difficile à mesurer, ce qui entraîne une « perte de pouvoir des professionnels vis-à-vis de l’administration »72. Aux Etats-Unis par exemple, le juge est évalué tant sur la qualité de sa décision que sur les modalités 59 C. Tchakaloff cité par -Fabri, M. and P. Langbroek (2000). Deveoping a Public Administration Perspective on Judicial Systems in Europe. The challenge of change for judicial systems: developing a public administration perspective. M. Fabri and P. Langbroek. Amsterdam, IOS Press. 14: 1-20. 60 -Langbroek, P. Ibid.Reinventing the Least Dangerous Branch of Government: Judicial Independence and the Accountability for the Administration of Justice, Courts and Judges in the Netherlands: 111-123. 61 Catherine LABRUSSE-RIOU, «Management et statuts d'indépendance: d'un service public - la justice - à d'autres - les hôpitaux et l'université», in Benoît FRYDMAN et Emmanuel JEULAND, Le nouveau management et l'indépendance des juges, Paris: Dalloz, 2011, p. 141-155. 62 NATIONAL CENTER FOR STATE COURTS, «The International Framework for court excellence, 2nd edition», Journal, 2013, 66. 63 GARAPON, op.cit. 64 -Derouand, V. (29.04.2014). Communiqué de presse de la commission de gestion: Compte rendu d'activité du pouvoir judiciaire en 2013. Disponible sur http://ge.ch/justice/publications, dernier accès le 27.02.2015. 65 -Marti, A. (2012). Histoire de l'organisation judiciaire 1814-2010. Genève, Copymédia., p.320. 66 BERNARD, DRUMAUX et MATTIJS, op.cit, p.26. 67 Ibid. 68 David GIAUQUE et Daniel J. CARON, «L'identité des agents publics à la croisée des chemins : de nouveaux défis pour les administrations publiques», Reforming the public sector : what about the citizens ?, Bern, 31.08/03.09 2005, p.2. 69 Laurence DUMOULIN, «Le recours aux experts, un mode de rationalisation des pratiques judiciaires?», Politique et Management Public, 23, (3), 2005, p. 145-159. 70 Bien qu’efficacité et efficience peuvent se concevoir comme étant imbriquées, les utilisateurs de la justice exigeant son efficience afin d’être satisfaits selon -Fierro, H. F. (2003). Courts, justice and efficiency: a socio-legal study of economic rationality in adjudication. Portland, Hart Publishing. 71 SERVERIN, op.cit., p. 37-54. 72 Cécile VIGOUR, «Ethos et légitimité professionnels à l’épreuve d’une approche managériale: le cas de la justice belge», Sociologie du travail, 50, (1), 2008, p. 87. 9 avec lesquelles il conduit l’affaire 73 . Au Pays-Bas, la pression des résultats serait à la base du phénomène qui voit des magistrats négliger la formation continue 74 . Piraux et Bernard75 pensent même que des dérives sont inévitables, certains juges essayant de « plaire » aux gestionnaires d’une manière ou d’une autre76, leur travail étant souvent évalué sur des critères quantitatifs uniquement. La légitimité de la justice ne dépend donc plus de critères purement juridiques mais bien d’un arbitrage permanent entre ces derniers et un souci d’efficacité77. La nouvelle gestion des tribunaux n’a d’ailleurs plus seulement comme ambition d’améliorer le rendement mais aussi la qualité des services et prestations fournis. Le management dans la justice va donc au-delà d’une simple technique, c’est une nouvelle logique 78 qui véhicule une culture portée par de nouvelles valeurs et attentes, voire de nouvelles sphères de légitimation au sens de Boltanski & Thévenot79 comme nous le verrons plus loin. On en veut pour preuve la fréquente substitution du terme justiciable par celui de client80. Toutefois, si l’on décide d’administrer la justice par les normes et les indicateurs, cela risque de modifier le rapport homme-travail, voire l’éthique même du travail juridique 81 . Il y aurait une dichotomie entre une manière d’évaluer la justice en fonction de sa mission de service public (accessibilité82, impartialité, célérité, égalité des armes) et en fonction de logiques managériales issues de la NGP qui la considère comme un processus de production (où on mesurera les coûts, les moyens, l’activité, la performance)83. Dans le premier cas, on prend en compte principalement le « processus » juridique, alors que dans le second c’est plutôt le travail des magistrats qui est analysé. Le problème est qu’il est impossible d’estimer correctement la qualité d’un processus de production sans évaluer son résultat en fonction de son but premier : en l’occurrence la mission de service public. Ces deux logiques sont donc indissociables l’une de l’autre, mais sont-elles vraiment compatibles ? Certains auteurs parlent d’ « aspects fondamentaux » lorsqu’ils évoquent des valeurs civiques comme l’indépendance de la justice, alors qu’ils relèguent les aspects managériaux des cours, comme l’efficience dans le traitement des affaires, au titre d’ « aspects secondaires » 84 . En effet, des paramètres tels que la productivité, l’efficience, le retour sur investissement etc., ne sont pas courants dans la logique judiciaire. Il sera donc pertinent de vérifier si la rencontre de ces aspects provoquera un choc culturel comme ce fut le cas dans d’autres services publics85, et/ou la transformation de l’éthos des professionnels de la justice86. Certains parlent même d’antagonisme entre efficience et justice, 73 CARBONI, op.cit. 74 LANGBROEK, «La réorganisation du système judiciaire des Pays-Bas», op.cit. 75 Alexandre PIRAUX et Benoît BERNARD, «Peut-on gérer la justice? Entre responsabilité et indépendance», Pyramides, 11, 2006, p. 9-18. 76 Jan MATTIJS, «Implications managériales de l'indépendance de la justice», Pyramides, 11, 2006, p. 65-102. 77 CADIET, op.cit., p. 111-129. 78 FRYDMAN, op.cit., p. 101-110. 79 Luc BOLTANSKI et Laurent THÉVENOT, De la justification. Les économies de la grandeur, Paris: Gallimard, 1991. 80 Joël HUBIN, «Entre efficience et efficacité. Mesures et démesures de la charge de travail des juges. Commentaires de l'article 352 bis du Code judiciaire.», Pyramides, 12, 2006, p. 17-146. 81 FRYDMAN, op.cit., p. 101-110. 82 Il faut comprendre la notion d’accessibilité de la justice tant du point de vue financier que géographique, il s’agit que les tribunaux soient situés à proximité des citoyens qui en ont besoin et soient abordables financièrement, voir annexe 1. 83 DUMOULIN, op.cit; SERVERIN, op.cit., p. 37-54. 84 LIENHARD, KETTIGER et WINKLER, «Status of Court Management in Switzerland», op.cit, p.13. 85 GIAUQUE et EMERY, «Repenser la gestion publique», op.cit ; Giseline RONDEAUX, «Identification organisationnelle et changement : le New Public Management à l'épreuve des logiques identitaires », Université de Liège, HEC, Thèse de Doctorat, 2011. 86 VIGOUR, «Justice : l'introduction d'une rationalité managériale comme euphémisation des enjeux politiques», op.cit. 10 arguant que la vie judiciaire est maintenant plus centrée sur l’efficience que sur la manière dont les organisations et les relations sociales en son sein fonctionnent87. Les résistances culturelles à la managérialisation des tribunaux risquent en effet de créer des tensions, particulièrement si les changements sont imposés de l’extérieur en faisant peu de cas des valeurs de l’institution, ce qui pourrait créer des dilemmes moraux et augmenter le stress professionnel88. Afin d’évaluer cela, il faut se demander si les qualités recherchées d’une bonne justice peuvent cohabiter avec les approches managériales décrites plus haut. Nous allons analyser ce phénomène à l’exemple du pouvoir judiciaire suisse. 3. Méthode La présente étude fait partie d’un plus large projet sur le management de la justice helvétique 89 conduit au niveau national depuis 2012. Pour cet article, nous avons analysé une série d’entretiens (56) semi-structurés menés dans des tribunaux de première et seconde instance dans des cours civiles, administratives et criminelles de neuf cantons90, dans les trois régions linguistiques du pays. Nous nous sommes entretenus tant avec des acteurs internes au tribunal (39) (juges (30) et managers (9)), qu’avec leurs pendants externes (17) (politiciens (7), avocats (5), journalistes (5))91. L’échantillon92 comprend un nombre identique de juges avec et sans responsabilité managériale. Les interviews, d’une durée d’environ une heure chacun, ont été conduits selon la méthodologie inductive93 dans le but de découvrir les principales attentes d’une bonne justice, jusqu’à saturation des arguments94. L’idée centrale était de laisser s’exprimer nos interlocuteurs sur l’idée qu’ils se font de la bonne justice afin de faire émerger les arguments qui sous-tendent selon eux cette notion. Les enregistrements des interviews ont été retranscrits et codés à l’aide du logiciel NVivo 10. Nous avons classé des passages d’entretiens dans 26 nœuds différents 95 , chacun correspondant à un argument défini comme important pour une bonne justice par un répondant. Certaines attentes émises par le même participant peuvent être complémentaires ou contradictoires, car chacun a d’abord dû décrire ce qu’était une bonne justice pour soi, avant d’expliquer ce que cela signifiait, selon lui, pour les autres parties prenantes. Un interviewé pouvait mentionner divers arguments, mais un argument répété à plusieurs reprises par la même personne n’a été comptabilisé qu’une seule fois. Par contre, certains paragraphes qui expriment des idées diverses peuvent être codés dans plusieurs nœuds. Nous avons ensuite classé les différents nœuds selon la fréquence avec laquelle ils étaient 87 LABRUSSE-RIOU, op.cit., p. 141-155. 88 Revital LUDEWIG et Juan LALLAVE, «Professional Stress, Discrimination and Coping Strategies: Similarities and Differences between Female and Male Judges in Switzerland», in Ulrike SCHULTZ et Gisela SHAW, Gender and Judging, Oxford: Hart Publishing, «Oñati International Series in Law and Society», 2013, p. 233-252. 89 Voir www.justizforschung.ch 90 Les cantons latins (Fribourg, Genève, Jura, Neuchâtel, Tessin, Vaud et Valais) sont l’objet central de la recherche, pour des raisons linguistiques principalement. Les cantons alémaniques de Lucerne et Schaffhouse ont été considérés à des fins de comparaison. 91 Des entretiens ont été conduits avec d’autres acteurs (greffiers, personnel administratif, procureurs, juges non-professionnels, chercheur) mais nous avons décidé de ne pas les considérer ici, tant parce que les acteurs sélectionnés nous semblent être les plus représentatifs que pour des raisons pratiques (longueur de l’analyse). 92 Parmi les limites de l’étude on citera la non-représentativité de l’échantillon et l’unicité des entretiens, nous privant ainsi d’une analyse temporelle de l’évolution des attentes. 93 Anselm STRAUSS et Juliet CORBIN, Les fondements de la recherche qualitative: techniques et procédures de développement de la théorie enracinée, Fribourg: Academic Press Fribourg, 2004. 94 Stéphane MARTINEAU, «L'observation en situation: enjeux, possibilités et limites», Recherches qualitatives, Hors Série, (2), 2005, p. 5-17. 95 A l’origine, nous avions défini 35 nœuds mais seuls ceux qui ont été mentionnés par au moins deux types d’acteurs, dont les juges, ont été retenus. En sus, contrairement à un précédent article basé sur la même étude, nous n’avons pas retenu le nœud « qualité », ce dernier faisant appel à une notion trop vague dont la définition variait considérablement entre les différents acteurs. 11 signalés par les participants (plus un nœud est cité par un groupe d’acteur, plus il obtient de + proportionnellement au nombre d’acteurs présents dans le groupe, voir tableau 1). Nous utilisons donc la récurrence des arguments comme proxy de leur importance pour les groupes d’acteurs. En d’autres termes, plus un argument est cité par un groupe d’acteurs plus il est considéré comme important pour ce dernier. Etant donné le nombre de répondants (56), il semble qu’une classification en cinq différents groupes96 soit adéquate. Le terme choisi pour chaque nœud n’a pas forcément été cité verbatim par les interviewés, l’exercice consistant à coder les idées similaires dans le même nœud selon la méthode de l’analyse de contenu97. Nous avons ensuite élaboré une définition de chaque nœud, en nous inspirant des citations des participants98. Nous savons que certaines attentes se recoupent, mais nous avons préféré les aborder individuellement pour pouvoir analyser les discours de la meilleure manière qui soit. Dans une étape ultérieure de la recherche, nous utiliserons l’analyse factorielle pour identifier les valeurs similaires ou contradictoires. Nous avons choisi d’analyser des discours et basons donc nos observations sur ce qui est dit et non sur ce qui est passé sous silence. Il est cependant possible que certains arguments trop évidents pour être énoncés ne soient pas mentionnés par les participants et que ces éléments appartiennent principalement au registre civique. Les arguments commerciaux étant les plus récents et controversés apparaitraient donc comme surreprésentés dans nos réponses. Pour éviter cela, nous n’avons pas précisé à nos interlocuteurs que nous étudiions le management de la justice en particulier. De plus, les résultats nous montrent que les arguments les plus évoqués restent ceux du monde civique (voir définition ci-après), ce qui rend peu probable la possibilité d’une trop forte représentation des éléments commerciaux. Finalement, nous n’avons comptabilisé qu’une seule fois chaque argument dans le tableau 2 qui nous permet de définir à quels mondes les acteurs de la justice suisse font le plus souvent appel quand ils évoquent la bonne justice. Pour appréhender les valeurs sous-jacentes à ces attentes, nous avons utilisé la typologie des mondes développée par Boltanski and Thévenot 99 , laquelle consiste en des univers idéal-typiques de référence100 auxquels font appel les acteurs lorsqu’ils justifient leurs agissements dans un contexte collectif. Nous avons retenus ici quatre mondes qui nous semblent pertinents afin de classer nos résultats : 1) Le monde industriel est basé sur les notions d’efficacité, de rendement et de performance. Il s’agit de l’univers des manufactures, centré sur la bonne organisation, le professionnalisme et l’optimisation des ressources. Ici, tout ou presque est mesurable, y compris l’homme. On se situe dans un monde scientifique, rationnel et modélisable. Pour ce qui est de la justice en particulier on se réfèrera principalement aux notions qualitatives que l’on tente de mesurer par des indicateurs (rapidité, efficience et efficacité etc.). 2) Le monde civique est celui de l’union de tous dans la formation de la volonté générale. Les organes collectifs et représentatifs (syndicats, partis politiques, collectivité publique) sont placés au centre. C’est le monde de l’expression de l’action démocratique, justifié par la législation et fondé sur la figure emblématique du citoyen. Ici les êtres s’équivalent en ce que la volonté générale peut se manifester en chacun d’eux. Cette volonté générale surmonte ce qui est particulier et lie les êtres dans une action collective. C’est le monde « classique » de la justice car la volonté collective doit s’exprimer dans des formes officielles (arrêtés, décrets, ordonnances, dispositions, jugements etc.) afin d’assurer sa validité et sa stabilité. C’est aussi 96Cf. tableau 1. 97 Satu ELO et Helvi KYNGÄS, «The qualitative content analysis process», Journal of advanced nursing, 62, (1), 2008, p. 107-115. 98 Voir annexe 1. 99 BOLTANSKI et THÉVENOT, op.cit. 100 Cf. tableau 2, §4.1 12 le monde où la justice est subordonnée au citoyen et se doit de lui rendre des comptes, d’être à son service et de lui garantir les prérogatives traditionnelles de la justice (impartialité, égalité de traitement, prévisibilité etc.). 3) Le monde commercial est celui du marché, de la rivalité entre les personnes physiques ou morales, du bien (produit), de l’argent et de la concurrence entourant les clients potentiels. Les valeurs centrales sont la valeur marchande, la possession, le profit et la rétribution. C’est l’univers sur lequel se fonde la théorie économique libérale où les personnes agissent de manière égoïste afin de satisfaire un besoin ou un désir. Ici le justiciable est un « client » que la justice se doit de satisfaire dans une relation d’ « affaire ». Elle doit non seulement proposer un service de qualité à ses clients (proximité, simplicité, personnalisation etc.) mais elle doit aussi assouvir certains désirs (avoir raison, résoudre un conflit) et ce à un prix attractif. 4) L’univers domestique est le monde des relations personnelles, inspiré par la famille et centré sur les relations bienveillantes qui animent une entité collective, un milieu. Les valeurs centrales sont ici la hiérarchie et la tradition. On rejette l’égoïsme et adoube les notions d’autorité, de responsabilité, de supériorité et de subordination. En ce qui concerne la justice, nous apparentons la notion de bienveillance à la justice humaine et à la recherche de conciliation alors que la sévérité et la confiance trouvent leur place dans la relation entre la justice (le supérieur) qui juge le justiciable (subordonné). Les réformes qui font écho à la NGP ont été analysées par plusieurs scientifiques utilisant cette approche comme une confrontation directe entre le monde civique (monde bureaucratique wébérien) et le monde commercial, ce dernier étant le reflet d’une logique managériale101. Il est cependant possible de concilier ces deux mondes grâce au processus que les auteurs appellent le « compromis » selon lequel les acteurs se mettent d’accord pour « composer…en recherchant l’intérêt général, c’est- à-dire non seulement l’intérêt des parties prenantes mais aussi l’intérêt de ceux qui ne sont pas directement touchés par l’accord » 102 . Le compromis se réalise grâce à un « principe de rang supérieur » capable de rapprocher des mondes qui paraissent en opposition. L’équipe de recherche a longuement débattu et passé en revue les travaux comparables dans la littérature actuelle et étudié les caractéristiques des univers proposés afin d’attribuer les attentes révélées par les entretiens aux différents mondes103. Cette classification nous aidera à déterminer si les sphères de légitimation auxquelles les participants se réfèrent lorsqu’ils définissent une bonne justice varient en fonction de leur rôle et si les valeurs associées à cette bonne justice empruntent à l’univers managérial. 4. Résultats et discussion 4.1 Résultats globaux Le tableau 1 présente la fréquence avec laquelle les différents acteurs (juges, gestionnaires de tribunaux, politiciens, avocats et journalistes) mentionnent les vingt-six attentes qui sont selon eux les plus importantes concernant une « bonne justice ». En général, on remarque une assez forte congruence entre les attentes des divers acteurs interrogés, comme le montrent les deux notions (rapide et communicative) citées le plus fréquemment (++++) par tous les types d’acteurs, sans exception104 : « la décision doit tout d’abord être rapide, et le plus juste possible » (juge 8, canton 5). Néanmoins, certains tribunaux ont encore du retard dans ces domaines comme l’explique un magistrat (no2, canton 1): «on a des carences à tous les niveaux de la communication, tant interne qu’externe» 101 Voir à ce sujet : GIAUQUE et CARON, «L'identité des agents publics à la croisée des chemins : de nouveaux défis pour les administrations publiques», op.cit; RONDEAUX, op.cit. 102 -Boltanski, L. and L. Thévenot (1987). Les économies de la grandeur. Gap, Presses Universitaires de France. , p. 225-226. 103 Le classement de certains items a été et reste évidemment sujet à controverse. 104 On considère ici les juges avec et sans responsabilité managériale comme un seul groupe. 13 ou encore « on travaille sur des recours d’il y a 2 ans, c’est insupportable pour le justiciable » (juge 1, canton 1). De plus, on observe que les neuf attentes les plus citées par les juges sont aussi mentionnées par tous les autres types de répondants. Au total, ce ne sont pas moins de 13 attentes (50%) qui sont évoquées par l’ensemble des acteurs. En ce qui concerne les différences, il n’est pas surprenant que les gestionnaires des tribunaux soient ceux qui attachent le plus d’importance à l’orientation client105: « C’est clair que ça doit aller vite en 1ère instance mais on ne veut pas attendre non plus des lustres pour obtenir le résultat de notre recours, ça doit aller vite partout. Le client veut savoir si il a gagné ou pas » (Gestionnaire de tribunal 1, canton 3) mais ne mentionnent que très rarement une caractéristique fondamentale pour les juges : l’indépendance. Sans surprise, les avocats plaident pour une justice simple et pragmatique106, particulièrement lorsqu’il s’agit de la procédure. Ces derniers, tout comme les politiciens et les journalistes mentionnent aussi des items tels que la transparence ou une justice humaine et proche des gens, plus fréquemment que ceux qui officient au sein des tribunaux : «Il faudrait une justice plus humaine, qu'elle soit moins intransigeante sur le côté « à la lettre » de la procédure» (Politique 1, canton 6). La notion de justice efficace et efficiente est citée plus souvent par des acteurs externes comme les avocats et les journalistes, ce qui peut surprendre car elle est une source de légitimité pour les magistrats107. « Soit on se dote d’une justice qui est capable d’être efficace à tous les niveaux soit on traite les affaires prioritaires et les autres, on dit : vous vous faîtes justice vous-même » (avocat 2, canton 3). Les journalistes se font le relais de l’opinion publique en mentionnant plus fréquemment que les autres des attentes telles que la sévérité : « ah, oui, la population à mon avis, elle est plus beaucoup plus dure que la justice, de loin » (Journaliste 1, canton 3), ou la légitimité d’une justice rendue par des non- professionnels. Insérer tableau 1 ici 4.2 Les juges qui exercent des responsabilités de gestion ont-ils des attentes différentes des autres ? 108 Si l’on ne considère pas la fréquence, on constate qu’environ 70% des attentes (18/26) sont mentionnées par les deux groupes de juges démontrant une forte congruence des attentes entre ces deux classes de magistrats. Cela semble indiquer que les juges avec responsabilité de gestion n’ont pas d’attentes fondamentalement différentes de leurs collègues qui dédient l’entièreté de leur activité professionnelle au droit, même si certaines divergences ont été relevées. Nous pensons que cela pourrait être dû à la notion de surdétermination de la culture professionnelle 109 sur la culture managériale; les juges étant des spécialistes particulièrement attachés à leur fonction, celle-ci prendrait le pas sur l’exercice ou non d’une activité de gestion. Nous nous intéressons maintenant aux univers de référence auxquels font appel les magistrats, respectivement sans et avec, responsabilité managériale lorsqu’ils évoquent la notion de bonne justice. Pour ce faire, nous utilisons la grille d’analyse des mondes communs développées par Boltanski 105 Il faut comprendre l’orientation client de la justice comme étant un rapport d’ « affaire » dans lequel l’institution se doit de rendre un service (public) au justiciable. Voir aussi la définition du monde commercial dans la section méthodologique ou -Villeneuve, J.-P. (2006). "Citoyen-clients et administrations: Acteurs confus et organisations entêtées, Typologie et analyse des rôles." Revue économique et sociale 1: 81-90. 106 Nous définissions une justice simple, pragmatique, pas trop formaliste comme « une justice qui n’est pas trop à cheval sur les règles. Elle doit être intelligente et adapter ses procédures si nécessaire », voir annexe 1. 107 VIGOUR, «Ethos et légitimité professionnels à l’épreuve d’une approche managériale: le cas de la justice belge», op.cit. 108 Voir annexe 2 pour une brève définition des différents mondes. 109 Mark EXWORTHY et Susan HALFORD, Professionals and the New Managerialism in the Public Sector, Buckingham: Open University Press, 1999. 14 et Thévenot 110 . Nous discutons d’abord les attentes invoquées par tous les juges avant de nous concentrer sur celles qui ne sont mentionnées que par un groupe de juges alors que l’autre ne les cite jamais, afin de déterminer si la présence d’une activité managériale dans le cahier des charges des magistrats a une influence sur les mondes auxquels ils se réfèrent. Insérer tableau 2 ici Parmi les onze attentes les plus citées par l’ensemble des juges, la majorité d’entre elles (5) appartient au monde civique, traditionnellement le monde de l’administration publique dont le citoyen est l’acteur principal, suivi des mondes commercial (4), industriel (1) et domestique (1). Ces résultats confirment la première partie de l’enquête où les deux mondes les plus représentés chez les managers de tribunaux et les juges étaient justement ceux-ci111. Cela renforce aussi l’idée que la culture hybride post-bureaucratique112 est bien présente chez les juges de première et seconde instance en Suisse, mais contredit des recherches similaires menées dans d’autres services publics113 helvétiques où les mondes les plus cités étaient les mondes industriel et civique. Les attentes mentionnées uniquement par les juges sans expérience de gestion114 sont personnalisée, impartiale, donne raison, non-corrompue, prévisible : un mélange d’éléments se rapportant aux mondes civique (impartiale, non-corrompue, prévisible) et commercial (personnalisée, donne raison115) avec une prédominance pour le premier. A l’inverse, trois attentes (sévère, égalité de traitement, inspirer confiance) ont été signalées seulement par des juges ayant une activité managériale. Le monde domestique 116 (sévère, inspire confiance) est ici mieux représenté que le monde civique (égalité de traitement). Nous en concluons que les juges avec expérience managériale ne font pas plus souvent appel au monde commercial lorsqu’ils définissent une bonne justice que leurs homologues sans responsabilité de gestion, contrairement à ce qui avait été observé dans une première partie de l’étude entre ces derniers et les secrétaires généraux. Si l’on excepte l’attente liée à l’indépendance de la justice, nous remarquons, dans le tableau 1, que les six attentes auxquelles les juges font le plus fréquemment référence lorsqu’ils évoquent l’idée de bonne justice (rapide, communicative, indépendante, accessible, simple et pragmatique, transparente) sont compatibles avec les principes de la NGP117 et sous-tendent l’existence d’une culture judiciaire qui n’est pas incompatible avec l’idée d’une gestion moderne de la justice. Un magistrat (no2, canton 1) nous affirmait par exemple: « On est vraiment au service du client, du justiciable. On doit répondre à des attentes, on ne doit pas rendre la justice pour la gloire…». 110 BOLTANSKI et THÉVENOT, op.cit. Voir tableau 2, dans lequel nous avons classifié toutes les attentes répertoriées. 111 Article publié. 112 Yves EMERY, «Gestion publique des ressources humaines. Introduction», in Andreas LADNER, Jean-Loup CHAPPELET, Yves EMERY, Peter KNOEPFEL, Luzius MADER, Nils SOGUEL et Frédéric VARONE, Manuel d'administration publique suisse, Lausanne: Presses polytechniques et universitaires romandes, 2013, p. 446- 459. 113 Yves EMERY, Carole WYSER, Noemi MARTIN et Joelle SANCHEZ, «Swiss public servants' perceptions of performance in a fast-changing environment», International Review of Administrative Sciences, 74, (2), 2008, p. 307-234; Yves EMERY et Noemi MARTIN, Le service public au XXIème siècle. Identités et motivations au sein de l'après-fonctionnariat, Paris: L'Harmattan & Schulthess Editions, 2010. 114 Voir tableau 1. 115 Personnalisée : la justice doit tenir compte, autant que possible, des spécificités de chaque cas/situation. Elle ne peut pas appliquer les règles aveuglement de la même manière à tout un chacun. Donne raison : les justiciables veulent que la justice leurs donne raison, peu importe ce qu’ils demandent. Voir la définition du monde commercial dans la section méthodologique pour plus de précisions. 116 Voir la définition du monde domestique pour plus de précisions. 117 Hans-Jakob MOSIMANN, «Wege zum Qualitätsmanagement an Gerichten: Grundlagen und Konkretisierung am Beispiel des Sozialversicherungsgerichts des Kantons Zürich», ZBL, 2003, p. 470-490; Christopher POLLITT, «Performance Management in Practice: A Comparative Study of Executive Agencies», Journal of Public Administration Research and Theory, 16, (1), 2006, p. 25-44. 15 Toutefois, le monde le plus fréquemment cité par l’ensemble des personnes interviewées lors de la présente étude reste le monde civique (13 attentes) qui est le monde wébérien « classique » dans lequel la « promotion et la défense du bien public prime » 118 , suivi par le monde commercial (7 attentes).119 Les acteurs de la justice helvétique que nous avons rencontrés semblent apparemment plus proches des modèles de l’administration publique canadienne (Québec)120 ou belge qui évoquent, eux aussi, les mondes marchand et civique en premier lieu 121 , que des autres services de l’administration publique suisse. Même si des recherches plus approfondies sont nécessaires avant de pouvoir conclure que le monde juridique est vraiment distinct des autres services publics du pays, force est de constater que ses membres recourent majoritairement aux mondes civique et commercial lorsqu’ils évoquent l’image qu’ils se font d’une bonne justice. Ce constat ne remet évidemment pas en question l’hypothèse selon laquelle « une hybridation entre des valeurs bureaucratiques et fonctionnelles et des valeurs démocratiques » 122, serait une particularité suisse mais pose la question de la spécificité de la justice. Cette nouvelle forme de légitimité hybride associée au service au client se doit d’être rapide, mais aussi humaine à l’image de l’artisan ou de l’entreprise qui place la satisfaction de ses clients au centre de sa stratégie commerciale. Certains parlent d’ailleurs de l’importance de délivrer des décisions « rapides, motivées, de manière claire (…) » (juge 4, canton 3) et qu’il « il faudrait se demander si ce que l’on écrit aux gens est compréhensible (juge 3, canton2). 5. Conclusion Il existe une volonté claire de répondre au mieux aux attentes des justiciables, qui se reflète dans l’importance donnée au monde commercial par les différents acteurs interrogés. Cependant, réduire ces derniers à de simples consommateurs-utilisateurs dans un contexte où celui qui procure le service ne contrôle pas ce qu’il offre et où le bénéficiaire ne peut généralement pas choisir son fournisseur, lorsqu’il n’est pas carrément contraint de participer à une procédure, serait trop simplificateur ; le citoyen faisant face aux obligations imposées par l’administration est clairement distinct du client en position de force par rapport à un Etat qui se doit de lui fournir un service123. Afin de dépasser ces oppositions, Boltanski et Thévenot font référence à la notion d’ « usager », intégrant à la fois le concept de « client » et celui de « citoyen » 124 par exemple. Il ne faut pas minimiser les efforts qui seront nécessaires pour faire cohabiter les valeurs des univers civique et commercial, particulièrement dans une justice qui se « détraditionnalise » 125, et où l’éthos professionnel de ses acteurs est de plus en plus chamboulé. Une hybridation de ces mondes via des 118 GIAUQUE et CARON, «L'identité des agents publics à la croisée des chemins : de nouveaux défis pour les administrations publiques», op.cit, p.7. 119 Ceci se confirme si l’on considère l’occurrence avec laquelle les attentes citées sont mentionnées par chacun des acteurs. Le monde civique arrive en tête (166), devant le monde commercial (106), le monde industriel (60) et le monde domestique (47). 120 GIAUQUE et CARON, «L'identité des agents publics à la croisée des chemins : de nouveaux défis pour les administrations publiques», op.cit. 121 Yves EMERY et Noemi MARTIN, «Quelle identité d'agent public aujourd'hui? Représentations et valeurs au sein du service public suisse», Revue française d’administration publique, 127, 2008, p. 559-578. 122 EMERY et MARTIN, «Le service public au XXIème siècle. Identités et motivations au sein de l'après- fonctionnariat», op.cit, p.125. 123 Jean-Patrick VILLENEUVE, «Citoyen-clients et administrations: Acteurs confus et organisations entêtées, Typologie et analyse des rôles», Revue économique et sociale, 1, 2006, p. 81-90. 124 -Boltanski, L. and L. Thévenot (1987). Les économies de la grandeur. Gap, Presses Universitaires de France., p.227. 125 BERNARD, DRUMAUX et MATTIJS, op.cit, p.25. 16 conventions au sens d’Amblard et al. ,126 et l’apparition subséquente d’une culture judiciaire hybride, relevée dans d’autres services publics occidentaux127, ne paraît guère incongrue. Cela paraît plausible dans la mesure où le rythme des réformes managériales en Suisse n’est pas effréné et les divergences fondamentales entre les différents groupes interrogés au regard de leur idée de bonne justice, notamment les juges avec ou sans responsabilité de gestion, peu nombreuses. Le chemin entrepris semble donc celui d’une gestionnarisation douce et incrémentale128 dans la tradition des réformes helvétiques. L’importance du management de la justice va grandissante et impacte fortement sa légitimité et sa réputation129. Il est donc crucial que la collaboration entre les présidents de cour et les gestionnaires des tribunaux soit optimisée, particulièrement dans la zone d’intersection où leurs activités s’interpénètrent 130 . Etant donné l’effacement des frontières entre ces dernières 131 , une « colonisation » des nouveaux instruments gestionnaires 132 par les juges est envisageable. Il n’est également pas exclu que les valeurs du monde commercial colonisent celles du monde civique à l’avenir, celles-ci étant considérées par certains comme quelque peu dépassées à l’heure actuelle133. Mais pour produire quelle justice ? 126 La convention est définie par Henri AMBLARD, Philippe BERNOUX, Gilles HERREROS et Yves-Frédéric LIVIAN, Les nouvelles approches sociologiques des organisations, Paris: Le Seuil, 1996, comme « une forme de coordination des actions que les personnes s’entendent à reconnaître comme juste au moins provisoirement », p.112. 127 -Bezes, P. (2007). "Construire des bureaucraties wébériennes à l'ère du New Public Management?" Critique internationale 35(2): 9-29. 128 Yves EMERY et David GIAUQUE, Motivations et valeurs des agents publics à l'épreuve des réformes, Laval: PUL, «Gouvernance et Gestion Publique», 2012. 129 LANGBROEK, «Towards a socially responsive judiciary? Judicial independence and accountability in the constitutional contexts of Italy, the USA and Netherlands», in Benoît FRYDMAN et Emmanuel JEULAND, op.cit., p. 63-86. 130 Mina-Claire PRIGIONI, «Le management de juridiction: Analyse comparative de l'organisation et du fonctionnement managérial de cinq juridictions du pouvoir judiciaire genevois», Institut des hautes études en administration publique (IDHEAP), Mémoire de Mastère en administration publique (MPA), 2014. 131 Etienne POLTIER, «Le pouvoir judiciaire "s'administre lui-même"», Justice - Justiz - Giustizia, 2012/3. 132 -Bezes, P., D. Demazière, T. Le Bianic, C. Paradeise, R. Normand, D. Benamouzig, F. Pierru and J. Evetts (2011). "New Public Management et professions dans l’État: au-delà des oppositions, quelles recompositions?" Sociologie du travail 53(3): 293-348. 133 EMERY et GIAUQUE, «Motivations et valeurs des agents publics à l'épreuve des réformes», op.cit. 17 6. Tableaux et annexes Attentes principales d’une “bonne justice” Acteurs internes au tribunal, N=39 Acteurs externes au tribunal, N=17 J u g e s ( to u s ) J u g e s ( a v e c e x p é ri e n c e m a n a g é ri a le ) J u g e s ( s a n s e x p é ri e n c e m a n a g é ri a le ) G e s ti o n n a ir e s d u t ri b u n a l P o li ti c ie n s A v o c a ts J o u rn a li s te s 1 Rapide ++++ ++++ ++++ ++++ ++++ ++++ ++++ 2 Communicative ++++ ++++ +++ ++++ ++++ ++++ ++++ 3 Indépendante +++ +++ ++ + ++++ ++++ ++ 4 Accessible (financièrement et géographiquement) ++ ++ +++ +++ +++ +++ +++ 5 Simple, pragmatique, pas trop formaliste ++ +++ ++ + ++ ++++ ++ 6 Transparente ++ ++ ++ + +++ +++ ++++ 7 Humaine, proche des gens ++ ++ ++ + +++ +++ +++ 8 Orientation client ++ ++ ++ +++ ++ ++ ++ 9 A l’écoute ++ ++ ++ + + + + 10 Juste ++ + ++ + + ++ / 11 Service public + ++ + / ++ / ++ 12 Efficiente et efficace + + + + + ++ ++ 13 Recherche la conciliation + + + / ++ ++ / 14 Doit rendre des comptes + + + + / + + 15 Légitime, crédible + + + / / + ++ 16 Non-juristes doivent aussi participer + + + + ++ + +++ 17 Personnalisée + / + + ++ / + 18 Respecte les procédures + + + + + / / 19 Sévère + + / / ++ / ++++ 20 Egalité de traitement + + / + + + / 21 Impartiale + / + / / + / 22 Résout tous les cas/conflits + + + + ++ ++ + 23 Inspire confiance + + / + / ++ + 24 Donner raison + / + + + + + 25 Non corrompue + / + + + / / 26 Prévisible + / + / ++ ++ / Tableau 1 : Attentes d’une bonne justice en Suisse de différents acteurs ++++: Thème mentionné extrêmement fréquemment (par au moins deux tiers des interviewés) +++: Thème mentionné fréquemment (par au moins la moitié des interviewés) ++: Thème mentionné quelques fois (par au moins un quart des interviewés) +: Thème mentionné au moins une fois /: Thème non mentionné par ce groupe d’ acteur 18 Tableau 2 : Attentes d’une bonne justice (évoquées par les acteurs du tableau 1) classées selon la méthodologie de Boltanski & Thévenot Monde industriel Monde civique Monde commercial Monde domestique Rapide Communicative Accessible (financièrement & géographiquement) Humaine, proche des gens Efficiente & Efficace Indépendante Simple, pragmatique, pas formaliste Recherche la conciliation Transparente Orientation client Sévère Juste A l’écoute Inspire confiance Service Public Personnalisée Doit rendre des comptes Résout tous les cas/conflits Légitime, crédible Donne raison Non-juristes doivent aussi participer Respecte les procédures Egalité de traitement Prévisible Impartiale Non corrompue 19 Annexe 1 : Lexique des attentes 1) Rapide : la justice doit résoudre les problèmes aussi rapidement que possible pour éviter les conséquences néfastes que la lenteur peut faire peser sur les parties. 2) Communicative : la justice doit expliquer ce qu’elle fait de manière compréhensible au public via les médias et/ou améliorer sa communication externe et/ou interne. 3) Indépendante : la justice doit être indépendante de toute sorte de pression, particulièrement politique. 4) Accessible (financièrement et géographiquement) : Les tribunaux doivent être situés à proximité des citoyens qui en ont besoin et être abordables financièrement. 5) Simple, pragmatique, pas trop formaliste : la justice ne doit pas être trop à cheval sur les règles. Elle doit être intelligente et adapter ses procédures si nécessaire. 6) Transparente : la justice doit être transparente à propos de son fonctionnement. Cacher des choses aux citoyens n’est pas concevable. 7) Humaine, proche des gens : la justice n’est pas simplement synonyme d’application stricte de la loi. Elle doit réaliser que sa matière première est l’être humain et qu’elle peut avoir des répercussions profondes sur l’existence de celui-ci. Elle est donc tenue de prendre en considération ce que vit l’homme de la rue et de jouer son rôle social. 8) Orientée client : la justice est un service public orienté client dont l’objectif doit être de servir le justiciable. 9) A l’écoute : la justice doit être à l’écoute des justiciables, il ne suffit pas de les entendre, de les considérer comme des numéros. 10) Juste : la justice doit être équitable et la décision rendue correcte. 11) Service public : la justice est considérée comme un service public. 12) Efficace et efficiente : la justice doit utiliser ses ressources avec parcimonie et en retirer le plus grand bénéfice possible. 13) Recherche la conciliation : la justice doit tenter de réconcilier les parties et non favoriser systématiquement l’ouverture d’un procès. 14) Doit rendre des comptes : Une justice dans sa tour d’ivoire n’est plus acceptée. Elle doit s’expliquer tant au sujet de son travail judiciaire que de la façon dont elle dépense/gère l’argent public. 15) Légitime, crédible : pour gagner/conserver la confiance des justiciables, la justice doit être crédible et légitime. 16) Les non-juristes doivent aussi participer : même le citoyen lambda doit pouvoir rendre la justice car il personnifie la volonté du peuple autant que les juristes. 17) Personnalisée : la justice doit tenir compte, autant que possible, des spécificités de chaque cas/situation. Elle ne peut pas appliquer les règles aveuglement de la même manière à tout un chacun. 18) Respecte les procédures : les procédures doivent être scrupuleusement respectées dans toutes les affaires pour une question d’uniformité de la justice. 19) Sévère : il y a souvent un écart entre le jugement populaire et celui des tribunaux. Le public veut une justice plus sévère que ce qu’elle n’est. 20) Egalité de traitement : dans la mesure du possible, la justice doit traiter tous les citoyens de la même manière. 21) Impartiale : la justice ne doit subir aucune pression des parties. Elle doit pouvoir juger chaque justiciable selon les mêmes critères objectifs. 22) Résout tous les cas/conflits : la justice doit résoudre toutes les sortes de conflits, elle doit donner une réponse claire dans toutes les situations. 23) Inspire confiance : l’institution judiciaire doit inspirer confiance, elle doit être perçue comme fiable par les citoyens et les parties. 24) Donne raison : les justiciables veulent que la justice leurs donne raison, peu importe ce qu’ils demandent. 20 25) Non-corrompue : la corruption doit être bannie du monde judiciaire. 26) Prévisible : les procédures doivent être connues et clairement expliquées aux justiciables. Ils ont le droit de savoir en avance ce qu’il va leur arriver. 
work_wxuv5ywn7bcjtmp7h47rhjtd2y	----	wp-p1m-39.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-39.ebi.ac.uk no 221735190 Params is empty 221735190 exception Params is empty 2021/04/06-03:20:33 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221735190 (wp-p1m-39.ebi.ac.uk) Time: 2021/04/06 03:20:33 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_wxzcjjjkofe35pt3khxm7foqn4	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221736336 Params is empty 221736336 exception Params is empty 2021/04/06-03:20:34 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221736336 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:34 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_wy47jmiljjfs7ipo6etw4ansp4	----	Justice Delayed is Justice Denied: The Lord Nelson Case Copyright © The Ontario Historical Society, 2016 Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 22:20 Ontario History Justice Delayed is Justice Denied The Lord Nelson Case Gary M. Gibson Volume 108, numéro 2, fall 2016 URI : https://id.erudit.org/iderudit/1050593ar DOI : https://doi.org/10.7202/1050593ar Aller au sommaire du numéro Éditeur(s) The Ontario Historical Society ISSN 0030-2953 (imprimé) 2371-4654 (numérique) Découvrir la revue Citer cet article Gibson, G. M. (2016). Justice Delayed is Justice Denied: The Lord Nelson Case. Ontario History, 108(2), 156–188. https://doi.org/10.7202/1050593ar Résumé de l'article En 1811, William et James Crooks de Niagara ont construit la goélette Lord Nelson. Un an plus tard, ce navire a été saisi par la marine des États-Unis pour avoir enfreint la loi américaine, ce qui a déclenché un cas unique dans l’histoire des relations entre les États-Unis, la Grande Bretagne et le Canada. Bien que la confiscation du navire a été déclarée illégale par une Cour américaine, le règlement était retardé par les actions (ou bien l’inaction) d’autres Cours américaines, du Congrès, des gouvernements canadiens et provinciaux, du gouvernement britannique, ainsi que par des guerres, des rébellions, des crimes, des disputes internationales et des tribunaux. Ce n’est qu’en 1930 que 25 descendants des deux frères ont finalement reçu une compensation monétaire. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/onhistory/ https://id.erudit.org/iderudit/1050593ar https://doi.org/10.7202/1050593ar https://www.erudit.org/fr/revues/onhistory/2016-v108-n2-onhistory03906/ https://www.erudit.org/fr/revues/onhistory/ 156 ONTARIO HISTORY Introduction In 1870 the American novelist Samu-el Clemens (“Mark Twain”) wrote a short story entitled “The Facts in the Case of the Great Beef Contract.”1 His tale chronicles the frustrations a contrac- tor and his numerous heirs encountered over many years trying to deliver and then receive payment for a quantity of beef ordered by the American army but ultimately captured and eaten by the In- dians. The story is a humorous and exag- gerated detailing of how settling a simple matter was repeatedly stymied by gov- ernment bureaucracy. The tale ends with the case still unsettled.2 It is a fictional ex- ample of the legal principle that “justice delayed is justice denied.” 3 Apparently unknown to Clemens, a real case originated fifty-eight years earlier exhibiting the same difficulties and frustrations as those suffered by his fictional characters. Furthermore, at the time Clemens wrote his story that case was still unsettled and would remain so for a further sixty years. The case of the schooner Lord Nelson and her owners, Canadians William and James Crooks, is a real-life example that fact can transcend fiction and justice can be delayed, not just for years, but for over a century. The Lord Nelson case is unique in the history of relations between Great Britain, the United States, and Canada. A description of the case appears in The Lord Nelson Case by Gary M. Gibson Justice Delayed is Justice Denied 1 The Galaxy, May 1870. 2 As of August 2015, the story is available online at www.twainquotes.com/Galaxy/187005b.html. 3 “Justice delayed is justice denied” is a legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. Ontario History / Volume CVIII, No. 2 / Autumn 2016 157the lord nelson case only a few publications and then only superficially.4 Paul Legall’s 2012 work presents a good outline but omits (probably for reasons of space or lack of access to docu- ments) many of the facts.5 This is the detailed story of the case of the schooner Lord Nelson, dedicated to the memory of Mark Twain. The Crooks Brothers and the Lord Nelson In 1791, at age 13, James Crooks immigrated to Upper Canada from Scotland to join his older brother Francis, who had started a store at Fort Niagara in 1788. Sixteen-year-old William Crooks joined his two brothers in Canada a year later. In 1795, William and James moved to Niagara, where, over the next fifteen years, they became involved in a wide range of entrepreneurial activities, in- cluding supplying goods to the British army, producing potash, milling, brewing of beer and dis- tilling whiskey.6 By 1810, William and James Crooks, now in their thirties, had become pros- perous, well-known and influential mem- bers of Upper Canadian society. Much of the brothers’ business involved goods that were transported by merchant schooners between Niagara and other ports on Lake Ontario and the St. Lawrence Riv- Abstract In 1811, William and James Crooks of Niagara built the schooner Lord Nelson. A year later, that vessel was seized by the United States Navy for violating American law, beginning a case unique in the relations between the United States, Great Britain and Canada. Although the seizure was declared illegal by an American court, settle- ment was delayed by actions taken (or not taken) by the American courts, Congress and the executive, the Cana- dian provincial and national governments, the British government, wars, rebellions, crime, international dis- putes and tribunals. It was 1930 before twenty-five de- scendants of the two brothers finally received any money. Résumé: En 1811, William et James Crooks de Nia- gara ont construit la goélette Lord Nelson. Un an plus tard, ce navire a été saisi par la marine des États-Unis pour avoir enfreint la loi américaine, ce qui a déclenché un cas unique dans l’histoire des relations entre les États-Unis, la Grande Bretagne et le Canada. Bien que la confiscation du navire a été déclarée illégale par une Cour américaine, le règlement était retardé par les ac- tions (ou bien l’inaction) d’autres Cours américaines, du Congrès, des gouvernements canadiens et provin- ciaux, du gouvernement britannique, ainsi que par des guerres, des rébellions, des crimes, des disputes in- ternationales et des tribunaux. Ce n’est qu’en 1930 que 25 descendants des deux frères ont finalement reçu une compensation monétaire. 4 Including Emily Cain, Ghost Ships (Toronto: Beaufort Books, 1983), 125-26, the Hamilton Spectator, 24 June 2013, and Barry Lord, “Two Armed Schooners from the War of 1812: The Hamilton-Scourge Project,” Naval History The Sixth Symposium of the U. S. Naval Academy (Wilmington DE: Scholarly Resources Inc., 1987), 354. 5 Paul Legall, “Lawyers epic legal battle over family’s sunken ship revisited,” (Canadian) Law Times, 28 May 2012. 6 David Ouellette “James Crooks,” Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1985) vol. VIII, 185; Land Petition, 7 October, 1796, Upper Canada Land Petitions, bundle C2-37, Li- brary and Archives Canada, hereafter LAC. 158 ONTARIO HISTORY er. By 1810, despite the American Non- Intercourse Act prohibiting trade with American ports on the lake and river, the Crooks brothers’ waterborne transport requirements were enough for them to want to own their own schooner.7 In the fall of 1810, the Crooks broth- ers hired shipwright Asa Stanard, of the village of Black Rock, New York (now a part of Buffalo) to build that vessel.8 The Lord Nelson was launched at Niagara on 1 May 1811. Shortly afterwards the Lord Nelson began her service on Lake On- tario, transporting cargo between Cana- dian ports on the lake and the St. Law- rence River.9 Records of these voyages are scarce but it is likely that she avoided American lake and river ports due to the existence of first the American Non-In- tercourse Act and, later in the spring of James Crooks, in about 1850 (inset). The Lord Nelson off Niagara in 1811. Detail of a painting by Peter Rindlisbacher 7 “An Act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies; and for other purposes,” 10th Congress, 2nd Session, Laws Chapter 24, 1 March 1809. 8 Before the War of 1812, Asa Stanard had a shipyard on Scajaquada Creek near Black Rock, New York (now a part of Buffalo), Augustus Walker, “Early Days on the Lake, With an Account of the Cholera Visitation of 1832,” Publications of the Buffalo Historical Society Vol. 5 ( January 1902), 287. 9 Charges were paid at Kingston, Upper Canada, on 21 June 1811 so it is likely the Lord Nelson was in ser- vice some time before that date. Her master during that voyage was John Drake. Emily Cain, Lake Traffic Analy- sis, paper computer records at Mills Library, McMaster University, Hamilton, Ontario; Emily Cain, “Building the Lord Nelson,” Inland Seas 41 (1985), 123. 159the lord nelson case 1812, an Embargo Act.10 The Capture The Lord Nelson’s final merchant voyage began on 3 June 1812 at Prescott, Upper Canada (across the St. Lawrence River from Ogdensburg, New York), in company with the American schooner Niagara.11 That same day, the American navy’s eighteen-gun brig One- ida sailed from Sackets Harbor, New York, on a cruise to the west to enforce the American revenue laws. The next day, the Lord Nelson was on Lake Ontario, in American waters off Pultneyville, New York, sailing towards Niagara. That af- ternoon, the Oneida “discovered three sail to windward apparently standing in for [the] Genesee River.” The Oneida’s captain, Lieutenant Melancthon Taylor Woolsey, gave chase but night fell before he could close with them. The following morning only two of the schooners were visible, the Lord Nelson and the Mary Hatt.12 Woolsey, following the rules for enforcing the embargo he received from Navy Secretary Paul Hamilton the previ- ous April, spent the rest of that day try- ing to close with the Lord Nelson, com- ing within carronade shot of her about sunset. Marine Abel Rowley and carpen- ter’s crew member Sunion Rivington, de- scribed what happened next: When the Oneida came within shot of her, she, the said Oneida, hove in stays, with her head to the westward, that captain Woolsey, of the Oneida, commanded a gun to be fired at the Nelson, which these deponents under- stood had nothing more than powder; that the Nelson, immediately upon the report thereof, hoisted her colors, a British ensign, to the mast head, but the Nelson, not heaving to, capt. W. again ordered a second gun load- ed with a ball, to be fired at the Nelson, but she still pursued her course; capt. W. ordered The Oneida captures the Lord Nelson, Toronto Public Library, JRR-1165 10 “An act laying an embargo on all ships and vessels in the ports and harbors of the United States, for a limited time,” 12th Congress, 1st Session, Laws Chapter 49, 4 April 1812. 11 15th Congress, 2nd Session, H.Doc 126, 5 February 1819. 12 The Mary Hatt was a British merchant schooner that was captured by the United States Navy on 10 No- vember 1812 and became the navy’s armed merchant schooner Raven. “United States vs. Schooner Mary Hatt,” 29 December 1812, Admiralty Case Files of the U. S. District Court for the Southern District of New York 1790- 1842, National Archives (U.S.) hereafter NAUS, RG 21, film M919 roll 16. 160 ONTARIO HISTORY a third gun loaded with two balls to be fired at the Nelson, which, when discharged, the Nelson immediately hove to under the stern of the Oneida.13 Woolsey ordered Acting Lieutenant Henry Wells to take three men, board the Lord Nelson, and report what they found. The boarding party discovered that the Lord Nelson “had no papers on board other than a loose journal and a bill of lading for a part of her cargo, but no register, license or clearance.”14 Furthermore, her master, John Johnson, was an American citizen. Based on these discoveries, Lieutenant Woolsey became convinced that, Whether it was intended to smuggle her cargo on our shores, or whether she was hovering along our shores to take on board property for the Canada market in violation of the embargo law I was not able to deter- mine — But appearances were such as to warrant a suspicion of an intention to smug- gle both ways. As Navy Secretary Hamilton’s or- ders only required a “strong suspicion” of intent to violate the law before seiz- ing a vessel, Woolsey took the schooner into custody.15 In light of later events, it is unfortunate that Hamilton issued such liberal orders. Woolsey, in turn, be- lieved simple “appearances” were enough to meet Hamilton’s requirement. Had Hamilton set a stricter standard, requir- ing clear evidence of intent to violate the law before seizing a vessel, the case of the Lord Nelson might never have existed.16 Woolsey took the master, John John- son, and part of the Lord Nelson’s crew on board the Oneida and ordered Gun- ner Gersholm L. Fairchild and seamen James Dutton and Guy C. Rickerson to sail the schooner to Sackets Harbor.17 The Oneida then returned to Sackets Harbor herself.18 The newspapers reported that the Lord Nelson was worth $4,100 and her cargo $3,500.19 13 One newspaper report had the shot fired “into her rigging” which, if true, was certainly more dramatic if probably unintentional. At that point (before the war) the Oneida’s crew did not have much experience fir- ing their carronades. Canandaigua NY, Ontario Repository, 16 June 1812. The Lord Nelson’s crew claimed that there “was three guns fired from the brig, before the schooner hove to; two of which were shotted,” Deposi- tion of Lord Nelson’s crew members Jasper Young and Abner Pearce, 20 June 1812, 15th Congress, 2nd Session, H.Rep 126, papers 5 & 6, 5 February 1819. 14 At the time, these documents were not required in Canada. 15 Paul Hamilton to Melancthon Woolsey, 8 April 1812, NAUS, RG 45, Letters Sent by the Secretary of the Navy to Officers, vol 10, 13, film M149 roll 10. 16 It is generally recognized that Paul Hamilton was not one of the best navy secretaries. “Hamilton fell short of the requirements of his position.” Charles Oscar Paullin, “Naval Administration Under Secretaries of the Navy Smith, Hamilton and Jones, 1801-1814,” Naval Institute Proceedings Vol. 32 (1906), 1308. 17 Deposition of Lord Nelson’s crew members Jasper Young and Abner Pearce, 20 June 1812, and deposi- tion of Oneida crew members Abel Rowley and Sunion Rivington, 25 June 1812, 15th Congress, 2nd Session, H.Rep 126, papers 5 & 6, 5 February 1819. Also the Oneida’s Muster Table, 30 April 1812, NAUS, RG45, Mis- cellaneous Records of the Navy Department, film T829 roll 17, p. 334a. 18 Melancthon Woolsey to Paul Hamilton, 9 June 1812, NAUS, RG 45, Letters Received by the Secretary of the Navy From Officers,1812 vol 2 item 19, film M148 roll 10; 15th Congress, 2nd Session, H.Doc 126, 5 Febru- ary 1819. 19 The Columbian, New York NY, 24 June 1812. 161the lord nelson case The War It did not take long for the owners of the Lord Nelson, William and James Crooks, to learn that she had been seized by the Americans and was now at Sackets Harbor. In an attempt to gain the ves- sel’s release, James Crooks, along with Augustus Porter, a partner in the Ameri- can firm of Porter, Barton & Co., whose schooners Ontario and Niagara had been seized by the Collector of the Customs, chartered a schooner and journeyed to Sackets Harbor. They arrived just in time as word of the declaration of war against Great Britain was already on its way.20 Porter was successful in obtaining the Ontario’s release but Crooks was not so lucky. “Captain Woolsey refused to give up mine, although I tendered security to abide the issue of any charge that might be produced against her.”21 Woolsey could have complied with Crooks’ re- quest. Naval regulations required only that the Lord Nelson “be adjudged [a] good prize.”22 The law was silent on how that judgment was made. Convention, however, involved the courts and that is what happened. Unfortunately, by the time that action was underway, the War of 1812 had begun and Crooks was pre- vented from returning to the United States. On 10 August 1812, the Lord Nelson was libelled in Federal District Court in New York City.23 The Crooks brothers, now unable to press their case in person, hired Lewis Farquharson, of Schenectady, New York, to handle the matter.24 They were almost too late. On 26 August 1812, absent any protest as apparently Farquharson had not yet arrived, the court ordered “that said schooner Lord Nelson, her tackle, 20 Deposition of Augustus Porter, 10 January 1837, 36th Congress, 1st Session, H.Rep Court of Claims 240, 11 February 1860 (hereafter CC240), 21-22. 21 Letter from James Crooks to Henry Hubbard, 16 April 1840, Statement of the Seizure of the British Schooner Lord Nelson, by an American Vessel of War on the 5th June 1812, 13 Days Before the Late War with the United States (Hamilton ON: Journal and Express Office, 1841), 5. The Ontario had been seized by militia at Cape Vincent and brought to Sackets Harbor. Porter was able to convince the authorities that this action was unwarranted and the schooner was released. 22 “An Act for the better government of the Navy of the United States,“ Section 5, 6th Congress, 1st Session, Laws Chapter 33, 23 April 1800. The imminent war with Great Britain and the chance for prize money may have influenced Woolsey’s decision. 23 “United States vs. Schooners Lord Nelson and Niagara &c.,” Minutes and Rolls of Attorneys of the U. S. District Court for the Southern District of New York 1789-1841, NAUS, RG21, film M886 (hereafter District Court Minutes), roll 3 target 2, 59. 24 Farquharson may or may not have been an attorney. He might have been acting under a Power of At- torney from the Crooks brothers. Letter No. 7 in Lewis Farquharson to the Crooks brothers, dated 24 June 1816, mentions a “Mr. Emmet, my principal counsellor” which makes the latter case likely; 15th Congress,2nd Session, H.Rep 126, 5 February 1819. Lewis Farquharson was a founding member of the St. Andrews Society of Schenectady, New York, Chapter LXVII section III of the Laws of the State of New York, 27 March 1807. He was also involved in the tobacco trade. His company, Lewis Farquharson & Co. had advertisements in the Albany Gazette (1 January 1810) and provided tobacco to the British North West Company for trade with the natives, “Tobacco for the Fur Trade,” The Beaver (March 1944), 38. The author thanks Walter Lewis for these references. 162 ONTARIO HISTORY apparel and furniture, be, and the same are, hereby condemned as forfeited to the use of the said United States.”25 Three days later, with the court fortunately still in session, attorney Farquharson appeared and filed two claims with the court, one for the schooner and another for her car- go, protesting the libel. The court then ordered that the schooner and her cargo be sold at auction and the proceeds held by the court pending a final hearing and decree, presumably after the war was over when the Crooks brothers could attend in person.26 Lieutenant Woolsey purchased the Lord Nelson for the United States Navy to use as an armed merchant schooner at a cost of $2,999.25.27 Renamed Scourge, she was in service from the fall of 1812 un- til she upset and sank in a squall on Lake Ontario on 8 August 1813.28 A report of the sinking of the Scourge, ex-Lord Nelson, appeared in the Buffalo, New York, Buf- falo Gazette on 17 August 1813, followed shortly thereafter by similar reports in other American and Canadian newspa- pers.29 It is certain the Crooks brothers learned of the sinking with interest, but probably not with concern. The proceeds of the 1812 sale of the Lord Nelson to the United States Navy were in the hands of the clerk of the United States District Court at New York City pending a trial to determine who deserved the money. While the Crooks brothers were confi- dent they would prevail, until peace was restored, all they could do was wait. Appeal to the Courts In the spring of 1815, with the war now over, William Crooks “preferred a claim for damages.”30 This he believed was the first step towards obtaining the money received by the New York City Court in March 1813.31 Unfortunately, this application coincided with the im- plementation of the division of the New York District Court into two districts, 25 Order of the District Court for the State of New York, in CC240. 26 District Court Minutes, roll 3 target 2, 110. 27 Isaac Chauncey to John Bullus, 12 October 1812, Chauncey Letterbook 3, William L. Clements Library, University of Michigan, 52. Chauncey was commodore commanding American naval forces on the Great Lakes and Bullus was the navy agent at New York City. All other payments for merchant vessels purchased by Chauncey on lakes Erie and Ontario were in multiples of $100. No explanation has yet been found for the odd amount paid for the Lord Nelson. “Statement of the vessels purchased by Commodore Chauncey,” 3 March 1813, NAUS,, RG45, Area File of the Naval Records Collection, Area 7, film M625 roll 76. 28 The Scourge (ex-Lord Nelson) remains intact on the bottom of Lake Ontario near Hamilton, Ontario. Emily Cain, Ghost Ships (Beaufort Books: Toronto, 1983), “Ghost Ships of the War of 1812,” National Geo- graphic, 163:3 (March 1983), 289-313 and Jonathan Moore et. al., Hamilton and Scourge National Historic Site: A Condition Survey of Two War of 1812 Shipwrecks (AhGt-9) in Lake Ontario, Underwater Archaeolog y Service Report 2011-03 (Parks Canada, 2011). 29 In Canada, these included the Quebec Mercury on 18 August and the Kingston Gazette on 7 September 1813. 30 Petition of James Crooks, CC240, 2-5. 31 The sales totaled $4,971.35 including $1,972.10 for the Lord Nelson’s cargo. This amount would be reduced by the expenses of the United States marshal and of the court itself. 24th Congress, 1st Session, H.Rep 814, 24 June 1836, 3. 163the lord nelson case the southern at New York City, and the northern at Utica.32 The new northern district court took over the case of the Lord Nelson from the southern court, which had handled the libel and ordered the sale in August 1812. Unfortunately, the legislation estab- lishing the northern district court failed to provide for a district attorney or a fed- eral marshal. This omission prevented the new district from holding a session in the spring of 1815. This problem was resolved by Congress in an act passed on 3 March 1815, but the Crooks brothers would now have to wait until the court’s fall term for Lord Nelson’s libel to be tried.33 However, owing to the illness of the district judge, Mathias B. Tallmadge, the northern district court did not meet in the fall of 1815. Upset with the delay, the Crooks brothers appealed to the lieutenant gov- ernor of Upper Canada, Francis Gore, asking that he provide a letter of intro- duction to the British chargé d’affaires at Washington, Anthony St. John Baker.34 Gore did so, and at the end of January 1816, Baker, in turn, wrote Secretary of State James Monroe, pressing the Crooks brothers’ claim and stating that he was certain that, Upon a due examination of all the circum- stances of the case, the government of the United States will feel itself called upon to adopt such measures as may procure for the owners a just indemnity for the losses which they have experienced, in consequence of the violence committed by the unjustifiable capture of their vessel.35 James Monroe 32 An act for the better organization of the courts of the United States within the State of New York, 13th Con- gress, 2nd Session, Laws Chapter 49, 9 April 1814. For the historical background of this division and the issues involved, see the annual lecture by the Hon. Roger J. Miner, sponsored by the Federal Bar Council and the Sec- ond Circuit Historical Committee, titled “The United States District Court for the Northern District of New York – Its History and Antecedents” presented at New York City on 10 April 1984. 33 An act supplementary to an act, entitled “An act for the better organization of the courts of the United States, within the State of New York,” 13th Congress, 3rd Session, Laws Chapter 95, 3 March 1815. 34 James Crooks to William Halton, 23 December 1815, Civil Secretary’s Correspondence, Upper Canada Sundries, Nov-Dec 1815, LAC, RG 5, A, 1, volume 25, 11290-11293, film C-4546. Halton was the province’s civil secretary. 35 Anthony St. John Baker to James Monroe, 30 January 1816, 24th Congress, 1st Session, H.Rep 814, 24 164 ONTARIO HISTORY Monroe presented Baker’s letter, and its supporting evidence, to President James Madison. It was early March 1816 be- fore Baker received a reply. As Baker’s letter mentioned court proceedings, based on advice received from the attorney general, Presi- dent Madison believed the Crooks brothers had “insti- tuted a suit for the recovery of its value” and, therefore, “Under these circumstanc- es, the interposition of the Executive, at this time, is not deemed necessary or proper.”36 In March 1816, Minister Charles Bagot arrived in Washington, supersed- ing St. John Baker. This delayed the Brit- ish response by two months. It was not until early May that Bagot replied to Monroe’s note, informing the American government that President Madison’s opinion Must have been formed upon some imper- fect view of the case; the fact being, that no suit has been instituted by Messrs. Crooks, as the attorney general seems to have imagined; but that the vessel was seized and libeled, and that the government of the United States has, for a period of four years, omit- ted to bring the libel to trial and adjudication.37 In May 1816, William Crooks was tired of waiting. He wrote the Lieutenant Governor’s office at York, Upper Canada (now To- ronto), asking that as there has been no action on the part of the United States to their claim, that the British government itself become involved.38 In August 1816, Secretary of State Monroe informed Minister Bagot that the libel against the Lord Nelson would appear on the docket to be tried at the northern district court at Utica.39 Bagot, in turn, informed St. John Baker, now the chargé d’affaires at the British consulate at Philadelphia. St. John Baker then in- formed Upper Canada’s lieutenant gov- ernor, Francis Gore.40 Finally, the Crooks brothers would have their day in court. Unfortunately, the Lord Nelson libel case did not appear on that court’s docket un- til the July term in 1817. At that time, the district court ordered the proceeds of the sale of the vessel and her cargo paid over to the vessel’s previous owners, William June 1836, 3. 36 James Monroe to Anthony St. John Baker, 5 March 1816, 24th Congress, 1st Session. H.Rep 814, 24 June 1836, 3-4. 37 Charles Bagot to Secretary of State, 13 May 1816, 24th Congress, 1st session, H.Rep 814, 24 June 1836, 4. 38 William Crooks to William Halton, 14 May 1816, Civil Secretary’s Correspondence, Upper Canada Sundries, May-Jun 1816, LAC, RG5, A, 1, volume 28, 12746-12750, film C-4546. 39 Charles Bagot to Anthony St. John Baker, 14 August 1816, CC240, 46. 40 Anthony St. John Baker to Francis Gore, 22 August 1816, Civil Secretary’s Correspondence, Upper Canada Sundries, Jul-Aug 1816, LAC, RG5, A, 1, volume 29, 13560, film C-4547. Sir Charles Bagot 165the lord nelson case and James Crooks. This court proceeding to give such further decree, doth further adjudge, order, and decree, that the proceeds of the sale of the said schooner as have been brought into this court, upon the sale and order of this court aforesaid, be paid over to the claimants in this case, his or their agent, or attorney, duly constituted for the purpose.41 This appeared to settle the matter but a procedural complication soon de- veloped. While the northern district court at Utica made its judgment, it did not have the funds to pay the Crooks brothers as the court order required. Those funds rested with the clerk of the court for the south- ern district at New York City. Application by the Crooks brothers to that court re- sulted in an opinion from Jonathan Fisk, U.S. attorney for the southern district, to Richard Rush, the acting secretary of state, denying the brothers’ application: The seizure of the Lord Nelson was made before the passing of the act of Congress... dividing the state into two districts. This act contained no provision for giving the court of the northern district jurisdiction over any causes then pending in the district of New York. The judge of the southern district has decided that the prosecutions pending in this court must be closed here; that he is not, nor are the funds in this court, subject to any decree or orders of the northern district.42 Charles Bagot informed the Crooks brothers of the situation, but wisely without making any prediction as to how long it would take before they would re- ceive their money.43 Six months later, in April 1818, Bagot wrote to the Secretary of State, “again troubling you upon the subject of the schooner Lord Nelson.” With the funds still unreleased by the southern district, Bagot complained that “An obstacle, merely through one as it should seem of form, has arisen, to the restoration of their property, by which they are still deprived of all the benefit of the decision which was made in their favor.”44 Although he was unaware, when Bagot wrote his letter the money was not just unreleased, it was gone forever. In January 1818, the clerk of the court for the southern district, 39-year-old Theron Rudd, had embezzled the entire amount in the court’s bank accounts and disappeared.45 That amount was later determined to be $133,673.69.46 While 41 Order of the District Court for the Northern District of New York, 11 July 1817, 15th Congress, 2nd Session, H.Rep 126, 5 February 1819, 24-25. 42 Jonathan Fisk to Richard Rush, 25 August 1817, CC240, 45-46. 43 Charles Bagot to William and James Crooks, 4 October 1817, CC240, 45-47. 44 Charles Bagot to Secretary of State, 15 April 1818, 24th Congress, 1st Session, H.Rep 814, 24 June 1836, 4-5. 45 Certificate of James Dill, clerk of the court for the southern district of New York dated 21 September 1818, 15th Congress, 2nd Session, H.Rep 126, 5 February 1819, 25-26. Embezzlement of the Funds of the Dis- trict Court of New York, 5 March 1818, American State Papers, Claims, No. 408, 586. 46 Of this amount, $90,888.82 was owed to the United States itself, and $42,784.87 was owed to individu- als, including William and James Crooks. The total amount was equivalent to over $10,000,000 in the early 21st century. Decision of the Court of Claims, 28 November 1859, CC240, 64. 166 ONTARIO HISTORY the northern court ruled that money was owed to the Crooks brothers, now there was no money to pay them. Appeal to the Executive To try to get past this roadblock, in October 1818 Minister Bagot again wrote the State Depart- ment, this time to the new secretary, John Quincy Adams. While Bagot did not believe it was his place “to offer any sug- gestion as to the mode in which the United States may now propose to in- demnify Messrs. Crooks for the loss sustained in the capture of their vessel, and for the successive dis- appointments which they have been compelled to experience,” Ba- got went on to state that “I am persuaded that it is only necessary for me to request your early attention to the subject, and the interposition of your good offices, to obtain for them, without further delay, the full benefit of the judgment which has been given in their favor.47 It is not hard to imagine the reac- tion of William and James Crooks to the news that their money had disappeared. In November 1818, James Crooks wrote the new lieutenant governor of Upper Canada, Sir Peregrine Maitland, asking him to write a letter to Minister Bagot in Washington, supporting the brothers’ claim.48 To its credit, the Monroe adminis- tration recognized the validity of the Crooks brothers’ case and that it was clearly the responsibility of the United States to provide them with the compensation ordered by the court. Unfortunately, there was no money in the executive budget to pay the claim. That would have to be provided by an act of Congress. Ac- cordingly, in February 1819, President Monroe reported, in a message to Congress, that the Crooks brothers Have suffered in their property by proceed- ings to which the United States, by their military and judicial officers, have been par- ties. These injuries have been sustained under circumstances which appear to recommend strongly to the attention of Congress the claim to indemnify for the losses occasioned by them, which the legislative authority is alone competent to provide.49 Later that month, the United States Senate, in an amendment to the general appropriations bill for 1819, approved payment of $4,300 to settle the claim of William and James Crooks. When the Sir Peregrine Maitland 47 Charles Bagot to John Quincy Adams, 28 October 1818, CC240, 47-48. 48 James Crooks to George Hillier, 12 November 1818, Civil Secretary’s Correspondence, Upper Canada Sundries, Nov-Dec 1818, LAC, RG5, A, 1, volume 41, 19487-19489, film C-4602. Major Hillier was Upper Canada’s new civil secretary. 49 James Monroe to Congress, 4 February 1819, CC240, 52. 167the lord nelson case amended bill arrived in the House of Representatives, however, all of the Sen- ate’s amendments were approved except payment to the Crooks brothers. The House decided against approval because the matter had not been referred to com- mittee and that there “were numerous claims of our own citizens which would be unsuccessful at this session, from the want of time to act on them; that this case ought not to have preference.”50 Once again it fell to Charles Bagot to commu- nicate this latest disappointment to the Crooks brothers, also informing them that unfortunately he would shortly be returning to England. He did assure Wil- liam and James that the matter would be left in the capable hands of Gibbs Craw- ford Atrobus, the embassy secretary and chargé d’affaires at Washington, “Who will, I have no doubt, succeed in obtain- ing for you at the next session of Con- gress that justice to which you have so undeniable a right.51 However, instead of appealing to Congress, Atrobus decided to try again to obtain the money from the executive. Accordingly, on 22 November 1819, he wrote to the State Department, asking the secretary to do what he could to obtain the money owed to the Crooks brothers by the court’s decision. On 7 December, Secretary of State John Quincy Adams replied, bringing up, for the first time, the case of the ship Lydia. Adams learned that the Lydia, an American merchant ship, had been cap- tured on the Atlantic by a Royal Navy warship during the War of 1812, then condemned and sold by the British Ad- miralty Court at Bermuda. Afterwards, authorities in London ordered the pro- ceeds of the sale to be paid to the Lydia’s owners, but due to the default of the of- ficers of the Bermuda court, the money to do so was no longer available. Adams asked Atrobus if the British government was as willing to acknowledge their re- sponsibility for the actions of the officers of the court at Bermuda as the Crooks brothers were asking the American gov- ernment to be for the actions of the clerk of the court at New York City.52 Adams recommended that Mr. Atrobus “ascer- 50 History of Congress, House of Representatives, 26 February 1819, 1423. 51 Charles Bagot to William and James Crooks, 4 March 1819, CC240, 48. 52 Statement of the Seizure of the British Schooner Lord Nelson by an American Vessel of War (Hamilton UC: Journal and Express Office, 1841), 16. John Quincy Adams 168 ONTARIO HISTORY tain the disposition of His Majesty’s Government on the subject” before resub- mitting the Crooks’ broth- ers claim to Congress. Subsequent investiga- tion determined that the facts presented by Secre- tary Adams were true, but it was not the whole story. The Lydia was an American vessel, but she was sailing in wartime under a British license and therefore “the license which she had on board would have rendered her a prize of war, had she fallen into the hands of a cruiser of our own country.”53 This was a different situation from that of the British schooner Lord Nelson, which had no American license on board and was taken before the War of 1812 began. This difference was recognized by the British government when it ordered the proceeds of the Lydia’s sale returned to her owners as she had a British license and should not have been seized by the Royal Navy in the first place. Furthermore, there was no evidence that the owners of the Lydia ever applied for compensation from the British government. Neverthe- less, the Lydia matter would continue to distract efforts to settle the Crooks’ claim for years to come. In December 1822, British Foreign Secretary George Canning in London wrote to Secretary Adams, stating that he knew noth- ing about the Lydia affair beyond what was referred to in Adams’ note of De- cember 1819. The two cases, however, were distinctly dif- ferent, one taking place be- fore the war and the other during wartime. Canning urged that the American government take steps to resolve the matter and pay the Crooks brothers the money awarded them by the court. In June 1823, Secretary Adams re- plied, dismissing Canning’s claim that the timing of the two events was relevant. He informed Canning that as the Brit- ish government has refused to apply the same principle in the Lydia case as Can- ning was insisting should be applied to the case of the Lord Nelson, “the reason which forbade the interposition of the executive still exists in all its force.”54 As before, Congress alone could authorize paying the Crooks brothers their money. In addition to asking the British government for aid, the Crooks broth- ers pressed a claim through the Upper Canada Board of Claims. They had been successful in obtaining partial compen- sation for other war losses through this board and they hoped they would be suc- cessful with the Lord Nelson.55 In August George Canning 53 Dispatch of the American minister in London, Richard Rush, to the State Department, No. 93, 29 Sep- tember 1819. 54 Statement of the Seizure of the British Schooner Lord Nelson by an American Vessel of War (Hamilton UC: Journal and Express Office, 1841), 17. 55 William and James Crooks submitted claims for losses amounting to £4,767 and received £1,191 from 169the lord nelson case 1824, Lieutenant Governor Maitland referred the mat- ter to the board through its senior member, Joseph Wells. Unsurprisingly, no payment was authorized.56 The Crooks brothers also spent the early 1820s waiting to see if the Ameri- can government would be successful in recovering any of the money stolen by Theron Rudd. In 1818 the United States brought suit against Rudd to recover the money. In 1821 the suit was referred to referees, who were tasked with established the amount actually em- bezzled by Rudd. The task of auditing the accounts of the New York district court proved to be a difficult one. The judges of that court, first Mathias Tallmadge and later William P. Van Ness, were lax in super- vising the activities of their court clerk, who easily appropriated the money on deposit in various banks for his own use. In an era when accounts were calculated, by hand, to the nearest quarter-penny, it took time for this tangled web to be un- raveled. When the task was complete in February 1822, the referees found that a small amount of money, some $9,789.25, had been overlooked by Rudd and was still available to pay the claimants, leaving a deficit of $123,884.44. This last amount was fur- ther divided by the sum owed to the United States and monies owed to pri- vate claimants. After di- viding the money available between the two groups, Rudd’s debt to the Unit- ed States was reduced by $6,606.39 and a civil judg- ment was entered against him, in favor of the United States, for $84,232.43.57 The court did not address how the available $6,606.39 should be divided among the various claims, including that of William and James Crooks. This question was left for a future time and it, like the Lydia affair, would prove to be a long-standing com- plication. Rudd himself was eventually located, arrested, convicted and sentenced to ten years in prison at hard labour. The money he stole, however, was never recovered and its disposition remains unknown. The matter then remained dormant for some years. In January 1831, the Brit- ish minister at Washington, Sir Charles R. Vaughan, wrote Secretary of State Martin Van Buren, again raising the issue of the Crooks brothers’ claim, asking that the Executive take steps to pay the brothers what was due to them.58 In his reply, Van the Board of Claims; York UC, Upper Canada Gazette, 10 June 1824. 56 George Hillier to Joseph Wells, 2 August 1824, Civil Secretary’s Correspondence, Upper Canada Sun- dries, Aug-Oct 1824, LAC, RG5, A, 1, volume 68, 35804, film C-4613. 57 Judgment of the District Court for the Southern District of New York in the matter of the United States vs. Theron Rudd, 29 December 1822., CC240, 14. The details appear on Schedules A and B, 17-19. 58 Charles R. Vaughan to Martin Van Buren, 13 January 1831, CC240, 17. Martin Van Buren 170 ONTARIO HISTORY Buren referred to the case of the ship Lyd- ia, noting that the question John Quincy Adams had asked ten years earlier, regard- ing the British government’s position on paying the amount owed to the Lydia’s owners, remained unanswered.59 Vaughan consulted the records of his ministry at Washington and found “communications from His Majesty’s Government, clearly indicating that the latter refused to ac- cede to the proposal originally made by Mr. Adams.” Consequently, he Believes it his duty to desist from prosecut- ing any further the claims of Messrs. Crooks, until he shall receive instructions to renew his application from His Majesty’s Govern- ment.60 Apparently no such instructions were ever received. Vaughan himself wrote to Sir John Colborne, the current lieutenant governor of Upper Canada, that “I find it necessary to desist from the further prosecution of Colonel Crooks’ claim” and asked Colborne to forward a letter to James Crooks informing him of that fact.61 The Crooks brothers’ efforts to obtain relief through the direct efforts of the British government had failed. Over two years later, in November 1833, the brothers again wrote Lieuten- ant Governor Colborne, this time of- fering a theory as to why the Lord Nel- son was seized. They proposed that the American navy, anticipating that war would be declared about the first of June 1812, issued secret orders to Lieutenant Woolsey to use the brig Oneida, starting shortly afterwards, to “capture as many of the [British] merchant vessels on the Lake as possible, so as to secure a superiority of maritime strength.” This, the Crooks brothers claimed, Woolsey did on 5 June 1812 by taking the Lord Nelson. Unfor- tunately, when war was not declared un- til 13 days afterwards, Woolsey had to use the excuse that the Lord Nelson was vio- lating the American revenue laws to jus- tify its seizure. The Crooks brothers used Woolsey’s efforts to immediately convert the schooner into a warship by adding bulwarks as support for their theory.62 Sir John Colborne 59 John Quincy Adams to Charles R. Vaughan, 29 January 1831, CC240, 17-18. 60 Charles R. Vaughan to John Quincy Adams, 1 February 1831, CC240, 18-19. 61 Charles R. Vaughan to John Colborne, 1 February 1831, Civil Secretary’s Correspondence, Upper Cana- da Sundries, Jan-Feb 1831, LAC, RG5, A, 1, volume 105, pp. 59581-59584, film C-6872. 62 William & James Crooks to William Rowan, 4 November 1833, Civil Secretary’s Correspondence, Up- 171the lord nelson case Unfortunately for the Crooks brothers, there is nothing in the written record to support the existence of any such secret orders and plenty of evidence to the con- trary. Unsurprisingly, no mention of this theory was ever made in any documents submitted to the American government or courts in support of their claim. Back to Congress In May 1834, William and James Crooks again brought their claim before Congress. The House of Representatives referred the matter to its Com- mittee on Claims, but no action was taken and the matter died when Con- gress adjourned.63 In Janu- ary 1836, the matter was resurrected by the 24th Congress, but only to refer the matter to its Committee on Foreign Af- fairs.64 That committee passed the matter over to the Committee on Private Land Claims. It did not take long, however, for that committee to realize that the Crooks brothers’ claim involved water and not land, and they directed it to the Com- mittee on Claims, where it had been two years earlier.65 Five months later, the House Com- mittee on Claims returned a report which was read and the House then re- solved that, The petition and papers of James Crooks and William Crooks be referred to the secretary of the navy, to ascertain (on giving notice to the said James and William Crooks, or to their agent, of the time and place of taking testimony) the value of the vessel called “The Lord Nelson,” captured by Lieutenant Woolsey, on Lake Ontario, on the 5th of June, 1812, at the time of said capture, and the cargo then on board of said ves- sel; and that he report the same at the next session of Congress.66 Before that testimony could be taken, William Crooks died on 31 December 1836, age 60, leaving his part of the claim in the hands of his executor, his brother James Crooks.67 The secretary of the navy, Mahlon Dickerson, in compliance with the House’s request, appointed James Stryk- er, of Buffalo, New York, as a commis- sioner to take the testimony of the vari- ous parties involved with the schooner Lord Nelson and her cargo. He also ap- Mahlon Dickerson per Canada Sundries, November 1833, LAC, RG5, A, 1, volume 135, pp. 74011-74014, film C-6880. James Crooks reiterated the same theory in his manuscript “Recollections of the War of 1812,” Niagara Historical Society Publications #28 (1916), 30. 63 Journal of the House of Representatives, 23rd Congress, 1st Session, 29 May 1834, p. 672. 64 Journal of the House of Representatives, 24th Congress, 1st Session, 5 January 1836, p. 143. 65 Ibid., 14 January 1836, p. 180. 66 Ibid., 24 June 1836, pp. 1085-86. 67 J.K. Johnson, Becoming Prominent: Leadership in Upper Canada, 1791-1841 (1989). See also the Ontario Ge- 172 ONTARIO HISTORY pointed James P. Barker, also of Buffalo, as the department’s agent to be present during the proceedings. The commission met in Buffalo on 10 January 1837 and concluded its work ten days later.68 The commission accepted deposi- tions from Asa Stanard, who built the Lord Nelson, Augustus Porter, who pro- vided material used in its construction, and the owners of the cargo that was on board when the vessel was seized, attesting to its value.69 The commission concluded that the schooner was worth $5,000 and the cargo $2,973.46 and these facts were reported to the House of Representatives by Secretary Dickerson.70 In February 1837, the House accept- ed the secretary of the navy’s report on the Crooks’ claim and, as before, referred it to the Committee on Claims.71 This time the committee disposed of the mat- ter promptly, reporting H.R. 942, A Bill for the Relief of William Crooks and James Crooks, which authorized a payment of $5,000 for the loss of the schooner Lord Nelson and recommending that the bill be passed.72 The committee’s recommen- dation, however, was never brought to a vote and, as before, the matter died along with the 24th Congress. The Crooks’ claim was not the only one that was not acted upon by that Congress. At the beginning of the second session of the 25th Congress, a number of memorials and petitions which had received favorable recommendations from the Committee on Claims in the earlier Congress, were again referred to that committee, including that of the Crooks.73 Again, the Committee on Claims acted promptly, reporting H.R. 76, A Bill for the Relief of William Crooks and James Crooks, which again authorized a payment of $5,000 and recommending that the bill be passed.74 A month later the bill was passed by the House with- out a division and referred to the United States Senate.75 James Crooks was finally one giant step closer to success. The Senate received H.R. 76 on 15 January 1838 and promptly referred the matter to its own Committee on Claims.76 Eleven days later the bill was back on the Senate floor, the committee having re- nealogical Society’s Toronto branch record at <torontofamilyhistory.org/simcoesgentry/26/william-crooks>. 68 Mahlon Dickerson to the Speaker of the House of Representatives, 11 February 1837, 26th Congress, 1st Session, S.Rep 430, 28 April 1840. 69 CC240, pp. 21-41. A summary of the cargo’s value, as claimed, appears on page 11. 70 Mahlon Dickerson to the Speaker of the House of Representatives, 11 February 1837, 26th Congress, 1st Session, S.Rep 430, 28 April 1840. 71 Journal of the House of Representatives, 24th Congress, 2nd Session, 13 February 1837, p. 379; 24th Con- gress, 2nd Session, H.Rep 243, 22 February 1837. 72 Journal of the House of Representatives, 24th Congress, 2nd Session, 22 February 1837, p. 501 with bill H.R. 942. 73 Journal of the House of Representatives, 25th Congress, 2nd Session, 11 December 1837, p. 36. 74 Bills and Resolutions, House of Representatives, 25th Congress, 2nd Session, 14 December 1837with bill H.R. 76. 75 Journal of the House of Representatives, 25th Congress, 2nd Session, 12 and 13 January 1838, pp. 262 & 265. 76 Journal of the Senate, 25th Congress, 2nd Session, 15 January 1838, p. 141. 173the lord nelson case ported it without amendment.77 The bill was then left in abeyance for five months. Finally, in early June 1838, the Senate, act- ing as a Committee of the Whole, tabled the bill without action.78 A month later, the Senate, again acting as a Committee of the Whole, took H.R. 76 off the table and reported it to the full Senate for ac- tion. Unfortunately, that action was not favorable. The Senate rejected the bill by a vote of 13 yea to 23 nay and so informed the House of Representatives.<�>9 That would normally have ended the matter for the 25th Congress, but, unusually, that Congress had a third session. In De- cember 1838 the House tried again and referred the Crooks’ petition to the Com- mittee of Claims.80 Unfortunately the ses- sion was short and it ended with the mat- ter still in committee. While the 1820s and early 1830s were a relatively tranquil period in U.S. – British relations, this began to change in 1837 when two separate rebellions, one in Upper and one in Lower Canada, took place. Citizens of the United States became involved and the year ended with the British burning the American ship Caroline in the Niagara River. 1838 saw a mixed force of Americans and Canadi- ans cross the St. Lawrence River and at- tempt to capture Fort Wellington. This was thwarted by British forces at the so-called Battle of the Wind- mill, but the event, and the subsequent execu- tion of several of the attackers, left both the president and many members of Congress with an unfavorable opinion of the British government.81 These events did nothing to encourage Congress to approve paying the Crooks’ claim. Accepting that he would now have even more difficulty with Congress, James Crooks tried a different approach. In early 1839 he asked to have his papers returned to him so that he could lay them before the legislature of this prov- ince [Upper Canada], at its last session, in the hope they would respectfully represent our case to Her Majesty’s Government in England, and through its means be remuner- ated for a loss.82 Top left – Sir George Arthur Bottom left – Charles Piulette Thompson 77 Ibid., 26 January 1838, p. 177. 78 Ibid., 5 June 1838, pp. 443-44. 79 Ibid., 3 July 1838, pp. 522-23; Journal of the House of Representatives, 25th Congress, 2nd Session, 7 July 1838, p. 1268. 80 Journal of the House of Representatives, 25th Congress, 3rd Session, 14 December 1838, p. 86. 81 Orrin Edward Tiffany, “The Relations of the United States to the Canadian Rebellion of 1837-1838,” Publications of the Buffalo and Erie County Historical Society VIII, Buffalo NY (1905) pp. 102-110. In Congress, “lake defenses, improvement of harbors, fortifications, war steamers and enlargement of the navy became topics of interest.” Ibid., 109. 82 Statement of the Seizure of the British Schooner Lord Nelson by an American Vessel of War (Hamilton UC: Journal and Express Office, 1841), 3-4. 174 ONTARIO HISTORY Unfortunately the papers did not arrive in time for the provincial legislature to con- sider the matter that year. James then wrote twice to Henry S. Fox, the British min- ister at Washington, in April and May 1839, asking that he use “his best endeavours with the U. S. Government to cause immediate and ample justice being done.”83 Crooks’ letters were sup- ported by a letter to Fox by the lieutenant governor of Upper Canada, Sir George Arthur. That fall, hearing nothing fur- ther, James Crooks’ son visited Wash- ington and met with Minister Fox, who claimed no knowledge of the lieutenant governor’s letter.84 Crooks then wrote to the governor-general of Canada, Charles Poulette Thomson, by way of his chief secretary, Clinton Murdoch, asking him to use his influence to encourage the Brit- ish minister at Washington to press the American government to pay the Crooks brothers.85 Three months later, with no further progress, James Crooks realized he had no choice but to again ask Con- gress for relief. Based on past experience, James realized that, while he could get approval from the House of Representatives, he had a problem with the Senate. To avoid the delay required to first obtain what he thought would be certain House ap- proval, in April 1840 he sub- mitted his claim to the Senate, which again referred the mat- ter to its Committee on Claims.86 James wrote the chairman of that committee, Henry Hubbard, pressing his case, noting that the House had passed a bill in 1837 which granted him $5,000.87 He was wasting his time. By 1840, in addition to the discord resulting from the events in Canada during 1837 and 1838, the controversy over the boundary between the province of New Brunswick and the State of Maine, and the presence on the Great Lakes of Royal Navy warships in violation of the 1817 Rush-Bagot agree- ment heightened tensions between the two nations even further.88 These ten- sions were reflected in the unwillingness of Congress to grant any relief to British citizens, including James Crooks. A week Henry Hubbard 83 James Crooks to Henry S. Fox, 27 April and 21 May 1839, Statement of the Seizure of the British Schooner Lord Nelson by an American Vessel of War (Hamilton UC: Journal and Express Office, 1841), 3-4. 84 Minister Fox did not enjoy his time in the United States and, as time went on, became increasingly reclu- sive. 85 James Crooks to T.W. Clinton Murdoch, 17 December 1839, Statement of the Seizure of the British Schooner Lord Nelson by an American Vessel of War (Hamilton UC: Journal and Express Office, 1841), 4. 86 Journal of the Senate, 26th Congress, 1st Session, 16 April 1840, p. 313. 87 James Crooks to Henry Hubbard, 16 April 1840, CC240, 5. 88 These warships were paddle gunboats and most were converted merchant vessels. They included the Toronto, Experiment, Traveller, Montreal, Minos and Chippewa. All were larger and most more heavily armed than the Rush-Bagot agreement permitted. That agreement allowed only one armed vessel on Lake Ontario and two on the upper Great Lakes. David Lyon and Rif Winfield, The Sail and Steam Navy List (London: Chatham Publishing, 2004), 171-72. 175 after it received it, the Senate Commit- tee on Claims referred the Crooks claim to the full Senate.89 Two weeks later, the Senate tabled the committee’s report.90 It did not stay tabled for long, but when it was taken up, the Senate, by a vote of 25 to 14, resolved that further consideration of James Crooks’ claim “be postponed indefinitely.”91 James Crooks was a stubborn man. Despite repeated disappointments, he would not give up. He now resolved to present his case once more, starting with the House of Representatives. He had a problem, however. His petition and supporting documents were still held by the Senate. Before he could apply to the House, those papers had to be returned to him. That was ordered on 1 July 1842 and he applied to the House a month lat- er.92 The timing looked favorable, as the Webster-Ashburton Treaty, signed on 9 August 1842, resolved the Maine-New Brunswick border, ended the so-called Aroostook War along that frontier, and settled issues remaining from the Caro- line affair of 1837. Relations between the United States and Great Britain were now amicable and James Crooks was hopeful of success. The House of Representatives once again referred the petition to its Com- mittee on Claims, referencing the Crooks brothers’ claim presented to the House back in 1834.93 Unfortunately for James, the time it took for the Senate to act on his request to return his papers meant that the 2nd session of the 27th Congress closed before the Committee on Claims had time to report back to the full House. That Congress did have a third session and James Crooks again applied and his claim was again referred to the Committee on Claims.94 Unfor- tunately, as before, the third session was short and Congress adjourned without the committee returning a report. Since his brother William died in December 1836, James Crooks spent six years trying to get compensation for a loss that took place thirty years earlier, receiving nothing but frustration. For the next six years he let the matter lie without renewing his petition to Congress. From past experience, he realized he had little choice as relations between the United States and Great Britain had deteriorated once more. In 1844, the U. S. Democrat- ic Party, appealing to expansionist senti- ments and “manifest destiny,” claimed that the Oregon Territory extended all the way north to Russian America (now Alaska). This the British would not ac- cept. Negotiations between the two na- tions broke down and a fear of war hung over North America. As tensions were also rising between the United States and Mexico, American President James K. 89 Journal of the Senate, 26th Congress, 1st Session, 28 April 1840, p. 346. 90 Ibid., 11 May 1840, p. 362. 91 Ibid., 20 and 21 May 1840, pp. 371 & 381. 92 Journal of the Senate, 27th Congress, 2nd Session, 1 July 1842, p. 440. 93 Journal of the House of Representatives, 27th Congress, 2nd Session, 3 August 1842, p. 1207. 94 Journal of the House of Representatives, 27th Congress, 3rd Session, 12 December 1842, pp. 41-42. the lord nelson case 176 ONTARIO HISTORY Polk reluctantly accepted a compromise, setting the boundary along the 49th par- allel of latitude. This was made official in the 15 June 1846 Oregon Treaty. Unfor- tunately, that same year saw the outbreak of the Mexican War. While Great Britain was not involved, Crooks realized that the war would complicate any effort on his part to obtain a favorable result from Congress, especially after the difficulties the two nations had between 1837 and 1846. Finally, in 1848, with the Mexican War over, James Crooks tried again. He submitted his memorial to the House of Represen- tatives and, as before, the matter was referred to the Committee on Claims.95 This time James was un- lucky in the House. The Committee on Claims re- turned an adverse report and his petition was tabled in March 1848.96 Normal- ly that would have ended the matter for the 30th Congress, but for some reason, a month later the House took the petition off the table and ordered that it be recommitted to the Committee of Claims.97 If this reconsideration was due to James’ lobbying efforts in Washington, they ultimately failed. The 30th Congress ended without any further action taken on his claim. At the start of the 31st Congress in 1850, James was back again, resubmitting to the House of Representatives the same petition as in 1848. This time the House directed his claim to the Committee on Foreign Affairs instead of the Committee on Claims.98 His claim was supported by a letter from Secretary of State John Mid- dleton Clayton to the chairman of the House Committee of Ways and Means recommending “that an appropriation be included in the civil and diplomatic appropriation bill for the value of the vessel, viz. $5,000.”99 The letter and the change of committee did not help. The Foreign Affairs committee took its time and, in March 1851, returned an unfavorable report on James’ request and the House tabled the matter.100 It had now been 17 years since James and William Crooks had first renewed their claim to Congress in 1834 and 39 years since the Lord Nelson was seized. It was clear that a straightfor ward approach to Congress was not going to work. James, now 73, needed to take a different approach John Middleton Clayton 95 Journal of the House of Representatives, 30th Congress, 1st Session, 17 February 1848, p. 425. 96 Ibid., 28 March 1848, p. 621. 97 Ibid., 30 May 1848, p. 853. 98 Journal of the House of Representatives, 31st Congress, 1st Session, 17 January 1850, p. 337. 99 Letter dated 14 February 1850, CC240, p. 45. 100 Journal of the House of Representatives, 31st Congress, 2nd Session, 3 March 1851, p. 446. 177the lord nelson case if he was to have any hope of getting Congress to authorize payment while he was still alive. Fortunately, the House of Represen- tatives had created a Court of Claims to take testimony and rule on the many claims outstanding against the United States. One such was titled “James Crooks vs. The United States.” James presented his arguments to the court much as he had to Congress. The suit was defended for the United States by Solicitor R.H. Gillet, who attacked Crooks’ claim on a number of legal grounds: 1. The United States are not liable for the illegal acts of its officers.101 If Lieutenant Woolsey acted illegally in 1812 as claimed, then Crooks must look to him, and not to the United States, for compensation. 2. The sale and converting the property into money and paying it into court was by the consent of the parties, and therefore the United States are not liable for the conse- quences. The clerk, Theron Rudd, in accept- ing the money, became the private agent of the party who was ultimately entitled to the money: James Crooks. The United States are not liable for the result of Rudd’s being trusted. 3. The United States are not responsible to suitors in courts for the acts of the officers of courts. The law may be defective in not requiring a large and sufficient bond on the part of the clerk to secure his fidelity, but that is no reason for holding the govern- ment responsible. The solicitor cited two recent court cases supporting that argu- ment. 4. The claimants had their right of action against the clerk if he did not pay over the money claimed on lawful demand. The loss on which Crooks complains appears to have grown out of two illegal acts — one of Lieutenant Woolsey in making the seizure and the other of the clerk in not keeping and paying over the money derived from the seizure. The United States are not guarantors for the acts of either, and are, therefore, not responsible to the claimants. It appears that the solicitor’s argu- ments carried considerable weight with the court. After reviewing the history of the case and its documentation dating back to 1812, on 28 November 1859 the Court of Claims issued its opinion. It was devastating to the hopes of James Crooks. The court concluded that the United States was not liable for the il- legal acts of either Lieutenant Wool- sey or court clerk Theron Rudd. The court did accept that money was owed to James Crooks and the estate of Wil- liam Crooks for the loss of the schooner Lord Nelson, but only the money from the sale of the schooner in 1812 that was deposited with the New York District Court, most of which had been stolen by the clerk. Therefore, the only money available to pay the claim was the por- tion of the money on deposit that was overlooked by Rudd and then only the $6,606.39 part that was applicable to the various private claims against the United States. Of that lesser amount, the court agreed that James Crooks was entitled to his proportional share, or $183.50. 101 Note the pre-American Civil War wording “the United States are.” After the Civil War made it clear that the United States was an indivisible entity, this changed to “The United States is.” The court then reported a bill, S.213, to Congress to pay James Crooks that amount.102 Unfortunately, during the time the Court of Claims was in session, yet an- other issue developed between the Unit- ed States and Great Britain. While the Oregon Treaty fixed most of the western boundary, the question of who owned the San Juan Islands, in the channel between the United States and Vancouver Island, remained. A boundary commission was established in 1856 to address the matter, but it remained unresolved in June 1859 when the so-called “Pig War” began af- ter an American farmer shot a British farmer’s pig. This lead to a rapid escala- tion of military and naval forces on both sides near and on the disputed islands. Tensions remained high for months until both nations agreed to occupy the islands jointly pending a settlement. This was delayed until 1872 when the islands be- came part of the United States. However, as before, these events did not encourage Congress to award any money to British citizens. In January 1860 the Senate received the report from the Court of Claims on the Crooks brothers’ case, accompanied by a bill for their relief. In a now too-fa- miliar pattern, the matter was referred to the Senate’s Committee on Claims.103 A month later, the House of Representa- tives, having received the same report from the Court of Claims, referred its own bill, H.R.C.C. 95, to its Commit- tee of Claims.104 For the first time, both houses of Congress were simultaneously considering paying the Crooks’ brothers for the loss of the schooner Lord Nelson. The Senate acted first. On 23 Febru- ary 1860 the Committee on Claims re- turned S.213 without amendment. While this bill did authorize payment to James 178 ONTARIO HISTORY 102 CC240, p. 67. 103 Journal of the Senate, 36th Congress, 1st Session, 12 January 1860, pp. 73-74. 104 Journal of the House of Representatives, 36th Congress, 1st Session, 11 February 1860, pp. 251-52. the lord nelson case Crooks, it was only for the sum recom- mended by the Court of Claims, a mere $183.50.105 From the record at the time, it was almost certain that this bill would be approved by the Senate as would its companion bill in the House. The case of the Lord Nelson would then be over and James Crooks would receive a trifling sum after 48 years of effort. Fortunately, the injus- tice of this result was ap- parent to Michigan Senator Zachariah Chandler, who introduced his own bill, S.220, ordering a payment of $5,000 to James Crooks.106 Chan- dler’s bill had the support of the Court of Claims dissenting opinion made by J. Scarburgh, which recommended pay- ment of $5,000 plus interest from 5 June 1812, the date the vessel was seized.107 Bill S.220 was referred to the Commit- tee on Claims and its presence effectively blocked any immediate action on bill S.213. This delay was readily accepted as the Senate at that time was disinclined to award money to British citizens. Fortu- nately for James Crooks, that session of Congress ended without the Senate tak- ing any further action on either bill. The House also failed to take any action on its own bill to compensate James Crooks by paying him the $183.50. Before the next session of Congress could convene, James Crooks himself died, disappointed, on 2 March 1860, age 82. The matter was left in the hands of James’ son and heir, Adam Crooks, who was now responsible for furthering his father’s and uncle’s claim.108 Adam, who became attorney general of the Province of Ontario and later minister of education, seemed to have the resources and connections necessary to press his late father’s case. To the credit of the House of Representatives, despite the presence of an ongoing civil war, they did not forget about the Crooks claim. Bill H.R.C.C. 95 was addressed again in De- cember 1861, but no action was taken.109 In May 1862, H.R.C.C. 95 was back be- fore the House of Representatives, and, once again, found itself referred to the Committee on Claims.110 As so often before, Congress adjourned without any action on the Crooks bill. By 1862, however, tensions between the United States and Great Britain were again high, so high that there was a seri- ous fear of war between the two nations. The Trent affair, the depredations of Confederate commerce raiders that had 179 Zachariah Chandler 105 Journal of the Senate, 36th Congress, 1st Session, 23 February 1860, p. 183. 106 Ibid., 27 February 1860, p. 192. 107 CC240, p,70. 108 Last will and testament of James Crooks, 9 February 1860, in 49th Congress, 1st Session, House Ex.Doc No. 161, pp. 12-13. 109 Journal of the House of Representatives, 36th Congress, 2nd Session, 5 December 1861, pp. 42-44. 110 Journal of the House of Representatives, 37th Congress, 2nd Session, 16 May 1862, pp. 704-706. 180 ONTARIO HISTORY been built in Britain, the unop- posed operations of numerous Confederate agents in Canada, and the later arrival of several Brit- ish Britomart-class gunboats on Lake Ontario in violation of the Rush-Bagot agreement of 1817, all worked to make any effort to return the Lord Nelson matter to Congress during and immediately after the war a futile one.111 This was realized by Adam Crooks. He would wait until tensions subsided. By 1873 affairs between the Unit- ed States and Great Britain were once again normal. The so-called “Alabama Claims”112 had been settled, the San Juan Islands were now American113, and the Treaty of Washington had resolved sever- al other issues between the two nations. It was time for Adam Crooks to take ad- vantage of this new era of good feelings and return his father’s and uncle’s case to Congress, but this Adam never did. Unfortunately, Mr. Adam Crooks was strick- en down by a disease that undermined his intellect, and it is impossible to obtain from him the explanation which he would doubt- less been able to give as to the reason of his non-prosecution of this claim.114 In other words, Adam Crooks was now insane. For over a decade the case sat idle. It was not until early 1886 that the other heirs of William and James Crooks took up the matter, employing Nicol Kingsmill, a partner in the law firm of Kingsmill, Cattanach & Symons, to press the claim with the American gov- ernment. Left to right:Lionel S. Sackville-West and Thomas F. Bayard 111 The Britomart class was a group of sixteen 330-ton wooden-hulled gunboats built by the British be- tween 1859 and 1867. One that served on Lake Ontario, the Heron, was armed with two 110-pound breech- loading Armstrong guns. See Rif Winfield, The Sail and Steam Navy List (London UK: Chatham Publishing, 2004), 231-32. The Rush-Bagot agreement of 1817 limited each nation to one warship on Lake Ontario of no more than 100 tons and armed with a single 18-pound cannon. In 1861, the United States had no warships on Lake Ontario. 112 The Alabama was a British-built warship that was used by the Confederate States of America as a com- merce raider during the American Civil War. She captured a number of United States merchant ships before she was caught and destroyed in 1864. After the war, the United States brought a claim against Great Britain argu- ing it had violated her neutrality by knowingly allowing the Alabama to be used by the Confederacy. The claim was included as part of the 1871 Treaty of Washington and resolved by an international tribunal held in Geneva, Switzerland. In 1872 the claim was settled and Great Britain paid the United States $15,500,000. The Lord Nel- son case could have been resolved at that time, but it was not included. 113 The dispute was settled by international arbitration with Germany’s Kaiser Wilhelm I as arbitrator. On 21 October 1872 the islands were awarded to the United States. 114 Petition by Kingsmill, Cattanach & Symons on behalf of the heirs of James Crooks, 49th Congress, 1st Session, House Ex.Doc No. 161, p. 12. 181the lord nelson case In January 1886, the British minis- ter at Washington, Lionel S. Sackville- West, wrote the American Secretary of State, Thomas F. Bayard, presenting, once again, the claim of James Crooks and in- troducing attorney Kingsmill.115 Bayard, in turn, referred the matter to President Grover Cleveland, stating that “this claim is a meritorious one.”116 On 2 April 1886, President Cleveland referred the Crooks claim to the House of Representatives, who referred it to their Committee on Foreign Affairs.117 In January 1887, the House Committee on Foreign Affairs reported favorably on the Crooks claim and presented a bill (H.R. 10800) to pay $5,000 plus interest up to 14 September 1872, “as this date being fixed as one up to which the claim has been prosecuted on the part of the claimants.” However, the committee recommended against mak- ing any allowance for the expenses the Crooks family had incurred in prosecut- ing their claim during the past 74 years.118 Unfortunately, that Congress adjourned without taking any action on the bill. In December 1887, at the start of the 50th Congress, attorney Kingsmill tried again, this time pressing the claim in both the Senate and the House of Repre- sentatives. In the Senate, a bill to pay the claim (S.948) was passed to the Senate Committee on Foreign Relations.119 In the House, a bill (H.R. 3879) was intro- duced by New York Representative John M. Farquhar and passed to the House Committee on Foreign Relations.120 The House committee, in its review, res- urrected the matter of the ship Lydia, noting that when the Crooks claim was considered by a Senate committee dur- ing the first session of the 26th Con- gress, that committee made an adverse report based on the fact that this claim against the British government remained unsettled. The subcommittee chairman, James S. Cothran, now asked Secretary of State Thomas F. Bayard “what is the present condition of said claim�”121 Ba- yard reported that the only reference in the files of the State Department was a letter from Richard Rush dated Sep- tember 1819. “Nor,” he stated, “does it appear that any claim for relief has ever been presented to this Department by the owners of the Lydia.”122 Fortunately for the Crooks claimants, this apparently satisfied the committee. In its report, the House committee rejected the argument that no money was owed because the Crooks brothers and the United States had jointly agreed to sell the Lord Nelson and to pay the pro- ceeds into the court, and as a result, the 115 L. S. Sackville-West to Thomas F. Bayard, 14 January 1886, 49th Congress, 1st Session, House Ex.Doc No. 161, p. 2. 116 Thomas F. Bayard to Grover Cleveland, 49th Congress, 1st Session, House Ex.Doc No. 161, pp. 1-2. 117 Journal of the House of Representatives, 49th Congress, 1st Session, 2 April 1886, p. 1127. 118 Ibid., 21 January 1887, p. 339 and the referenced report, H.Rep 3743, p. 5. 119 Journal of the Senate, 50th Congress, 1st Session, 19 December 1887, p. 85. 120 Journal of the House of Representatives, 50th Congress, 1st Session, 9 January 1888, p. 273. 121 James S. Cothran to Thomas F. Bayard, 4 April 1888, 50th Congress, 1st Session, H.Rep 2861, pp. 5-6. 122 Thomas F. Bayard to James S. Cothran, 26 April 1888, 50th Congress, 1st Session, H.Rep 2861, p. 6. 182 ONTARIO HISTORY Crooks brothers had themselves assumed the risk that the money would be lost. The consent, if given at all, must have been given by an agent, as war having been de- clared, it was impossible for the owner to have been present, and such consent was probably given as the best that could be done under the circumstances to save the absolute forfeiture of the vessel.123 While references to “must have been” and “probably” indicate a degree of uncertainty in the committee’s con- clusion, fortunately for the Crooks’ heirs that conclusion favored their claim. That was the only favor they received from the House that year. In July 1888, the House Committee on Foreign Affairs returned its report on the Crooks claim, recommending passage of the bill, but no action was taken.124 The same month, the Senate Committee on Foreign Relations returned its report on the Crooks claim recommending passage of a bill (S.948) to pay the claimants $5,000 plus four percent interest.125 The report, however, was accompanied by a minority report that believed that 76 years was too long a time to accumulate interest: When we are asked to increase the liability of the United States more than threefold by way of interest to compensate the claimants, I feel bound to stop at the line of twenty years in the al- lowance of that measure of dam- ages.126 Whether that minority report was a fac- tor or not is un- known, but that session of Congress ended without the Senate taking any further action on the Lord Nelson claim. Attorney Kingsmill resubmitted the claim at the first session of the 51st Con- gress and the Senate again sent the claim to the Committee on Foreign Affairs. As before, that committee produced a report and submitted a bill (S.311) and recom- mended passage. The House of Repre- sentatives also prepared a report and a bill (H.R.1620) recommending passage. Once again, both the first and second ses- sions of that Congress adjourned without taking any action on either bill.127 In 1892, attorney Kingsmill pre- vailed upon Secretary of State James G. Blaine to recommend to President Benjamin Harrison that he support the Crooks claim.128 Harrison, in turn, sent a message to Congress recommending it Right: James G. Blaine 123 50th Congress, 1st Session, 12 July 1888, H.Rep 2861, p. 4. 124 50th Congress, 1st Session, 12 July 1888, H.Rep 2861. 125 Journal of the Senate, 50th Congress, 1st Session, 27 and 28 July 1888, pp. 1195 & 1200 referencing S.Rep 1945. 126 Minority report submitted by Senator John T. Morgan, 50th Congress, 1st Session, 28 July 1888, S.Rep 1945, pp. 4-5. 127 51st Congress, 2nd Session, H.Rep 3703, 5 February 1891. 128 James G. Blaine to Benjamin Harrison, 18 January 1892, 52nd Congress, 1st Session, House Ex.Doc No. 95, p. 1. 183 “anew for the con- sideration and final disposition of the present Congress,” but, as so often be- fore, no action was taken.129 The Crooks claim was present- ed to the House of Representatives in 1894, to the Senate in 1896, and again to the Senate in 1899. Each time the matter was referred to committee and each time the committee recommended passage of a bill paying the claim, but without interest. Each time, Congress took no further action.130 Between 1894 and the first years of the 20th century, external issues arose that got in the way of a settlement. First the Venezuela crisis of 1895, when the United States and Great Britain squared off over a land dispute in South America, then by the Spanish-American War, and finally by the Boer War. About this time, James Crooks’ grandson, Toronto lawyer Alexander Da- vid Crooks, took over the case. He and Kingsmill hired an American attorney, Charles Lincoln, who claimed to have influence in Washington, to speed things along but to no avail. In 1908, the Senate referred the Crooks claim to the Court of Claims as case No. 13637 for “find- ings of fact,” although there could hardly be any new facts in this case left to find. The Court returned a bill (S.3717) recommending payment, but, again, the Senate as a whole took no action.131 The Final Acts On 18 August 1910, a Pecuniary Claims Agree- ment was signed by the Hon. James Bryce, the British ambassador at Washington, and Philan- der C. Knox, the American secretary of state, agreeing to form an international commission to settle all existing claims. Both nations agreed to accept the ver- dicts of that commission and to pay any amounts awarded to the other party. Rat- ification of the agreement by both parties was complete by 26 April 1912.132 The Lord Nelson case was specifically includ- ed in the list of claims to be considered Left: Alexander D. Crooks Right: Robert Lansing (top) and Edmund Leslie Newcomb 129 Benjamin Harrison to the Senate and House of Representatives, 25 January 1892, 52nd Congress, 1st Session, House Ex.Doc No. 95, p. 1 130 53rd Congress, 2nd Session, H.Rep 1351; 54th Congress, 1st Session, S.Rep 1074; 55th Congress, 3rd Session, S.Rep 1874. 131 60th Congress, 2nd Session, S.Doc 663, 18 January 1909. 132 Treaties, Conventions, International Acts, Protocols and Agreements Between The United States of America and Other Powers, Supplement 1913 to Senate Document No. 357, 61st Congress, 2nd Session, Vol III p. 50. the lord nelson case 184 ONTARIO HISTORY (Class II, British shipping claims). The International Arbitration Commission itself was established in 1913. On 28 March 1914, the Lord Nel- son case was heard by the commission, consisting of Henri Fromageot, of Paris, France, the chairman of the commis- sion, Sir Charles Fitzpatrick, representing Great Britain, and Chandler P. Anderson of New York, representing the United States. The Canadian case was argued by the deputy minister of justice, Edmund Leslie Newcombe, King’s Counsel, of Ot- tawa. Great Britain was represented by Alexander David Crooks, James Crooks grandson. The case for the United States was argued by Robert Lansing, advisor to the State Department and a future secre- tary of state. The suit was brought in the name of Henry James Bethune, one of the heirs. He asked the commission to award 6% compound interest for 100 years, from the date the Crooks brothers lost the use of their property, 5 June 1812, to 1912.133 On 1 May 1914, the commission awarded the heirs of William and James Crooks $5,000 for the loss of the schooner Lord Nelson, but only 4% simple interest from 1819 to 1912.134 The total amount awarded was $23,644.38.135 As shown in Table 1 below, compound interest for the 93-year term would have brought that amount to over $190,000.136 Compensa- tion for the loss of the cargo was never ad- dressed. Finally, after 102 years, the heirs of William and James Crooks could now expect to shortly receive some money. Unfortunately, it was not to be. Be- fore both the United States and Great Britain could actually make the agreed- upon payments, the First World War began. Great Britain, now having a bet- ter use for the funds, declined paying the money due to citizens of the United States. The American government, in turn, declined to pay the claims owed to the British and, now, to the Canadians, including that due to the heirs of the Crooks brothers. The matter was held in abeyance until the war was over. When payment was delayed, Alexan- der Crooks made it his mission to work towards obtaining the settlement. His efforts continued after the First World 133 Watertown Daily Times, Watertown NY, 30 May 1913. 134 American and British Claims Arbitration Tribunal, Award in the Matter of the Lord Nelson, Claim No. 20, Reports of International Arbitral Awards, Henry James Bethune (Great Britain) v. United States (Lord Nelson case), 1 May 1914, Volume VI pp. 32-35 (United Nations, 2006); Hamilton Spectator, Hamilton, On- tario, 24 June 2013. The starting date, 1819, was chosen as the date William and James Crooks first applied to Congress for relief. Periodically, over the years, various bills proposed calculating interest from the date the Lord Nelson was seized, 5 June 1812, but the commission felt otherwise. The commission also established the ending date for calculating interest as the date in 1912 when the agreement forming the commission was ratified and not the date the United States actually paid the money. 135 The $5,000 value of the schooner Lord Nelson plus the 4% simple interest on that amount of $18,644.38. 136 Using 1812 instead of 1819, and 1927 instead of 1912 (115 years instead of 93, see Table 1) would have added about $4,000 to the amount due. Had the commission established compound instead of simple interest for the full term, which would have encouraged prompt payment, the total due by 1927 would have been almost $455,000. Had Bethune’s 6% compound interest been allowed from 1812 until payment in 1927, the award would have been more than four million dollars. 185the lord nelson case War but one administrative delay after another occurred preventing payment. Some of the Crooks’ heirs, led by Eva Crooks of Benton Harbor, Michigan, became increasingly impatient and their public agitation threatened the case it- self. It took an additional thirteen years, from the date the international commis- sion awarded the money, to 1927, before the United States paid the Government of Canada the amount due. By then the original award had been reduced to $15,546.63 by various administrative and legal expenses. The Canadian government now had the task of determining who de- served the money and in what amounts. It took a further three years to whittle the over 100 claimants down to the 25 shown in Table 2 who deserved a share of the money.137 Finally, in 1930, payments were made by the Canadian government to those claimants in various amounts, ranging from a low of $119.06, to Eva Crooks and her brother Alfred who each received $952.46.138 Lawyer Alexander 137 Reportedly ordered by Mr. Justice John Fosbery Orde of the Second Divisional Court, Supreme Court of Ontario in Toronto, from a list in Ontario Law Reports, 1930-31 and cited in the Montreal Gazette, 18 Febru- ary 1930. 138 While better than nothing, had Bethune been successful and 6% compound interest granted, Eva and 186 ONTARIO HISTORY Crooks received $476.23 as his share plus a “few thousand dollars” in legal fees.139 There was no consideration given to the amounts the Crooks brothers and their heirs incurred for other legal services during the life of the case. It took 118 years but the Lord Nelson’s legal legacy was finally over. Why Did It Take So Long? For over a century, almost everyone in the United States government (the judi- ciary, several presidents and most mem- bers of Congress) agreed that the Crooks brothers had been wronged and deserved compensation for the loss of the Lord Nelson. More complex and serious mat- ters between the United States and Great Britain, whether related to warfare (such as the “Alabama claims”) or territorial ownership (the San Juan Islands dispute) were usually resolved within a decade or two. Why did the Lord Nelson case take 118 years� The Crooks brothers and their heirs encountered a steady stream of what can only be called “bad luck.” Embezzlement, mental illness, wars, rebellions, territorial disputes and adverse politics all seemed to happen just in time to prevent a settle- ment. The Lord Nelson case was a minor matter. The only people with a real in- terest in its resolution were the Crooks brothers themselves and their heirs. The relative insignificance of the case allowed members of the executive branch and of Congress, who were conservative or perhaps even Anglophobic, to easily en- tangle the Lord Nelson claim with other unrelated matters such as the Lydia case. In doing so, senators and representatives showed their constituents, without risk of controversy, that they were protecting the rights of the United States in its rela- tions with Great Britain. Efforts to gain the strong support of the British govern- ment also failed. The matter was just too minor to receive the constant attention the Crooks’ believed it deserved. The Crooks’ citizenship was an issue from the beginning. Given an Ameri- can owner, the Lord Nelson case might never have existed. The American-owned schooner Ontario, impounded at Sackets Harbor at the same time as the British- owned Lord Nelson, and for the same reason, was quickly released upon appli- cation in-person by its owner. A similar attempt by James Crooks failed. Given the strained relations between the two nations at the time, Lieutenant Woolsey and the United States marshal followed protocol and proceeded with the libel case against that vessel. Had the Crooks brothers been Amer- ican citizens, the War of 1812 would not have impeded their personal appearance in court in the summer of 1812. This would have allowed the trial to take place during the war, instead of in July 1817, and the proceeds of the sale paid to the Crooks brothers long before the division Alfred Crooks would have each received almost $104,000, equal to well over a million dollars 80-plus years later. Even awarding only 4%, but compound instead of simple interest, would have provided Eva and Alfred with almost $11,800. 139 Paul Legall, “Lawyer’s epic battle over family’s sunken ship revisited,” Law Times, 28 May 2012. 187the lord nelson case of the court and Rudd’s embezzlement complicated matters.140 Furthermore, had the Crooks’ claim been a purely domestic matter it is likely that Congress would have acted favor- ably and relatively quickly. The unique nature of the case precluded its settle- ment creating any sort of precedent and there were many other private acts of Congress, involving more serious and even precedent-setting issues that were approved with little delay.141 The Crooks brothers, however, were not only citizens of a foreign country, they were not even United States residents. Their situation, coupled with the unique nature of the case, offered numerous opportunities for delay while the details of the claim were repeatedly debated. The difference in governmental structure also played a part. Had the roles been reversed, with American citizens being the wronged party, it would have been easier to resolve the matter as the power to do so rested in only one body, the British Parliament and its ministers. 140 Most wartime libel cases on Lake Ontario were resolved quickly. For example, the British merchant schooner Mary Hatt, which escaped from the Oneida in June 1812, was taken by the Americans as a prize in November. She was libeled in December and the matter settled by the end of April 1813. Happening pre-war and with no evidence of an intent to violate American law, the Lord Nelson case would likely be settled as expe- ditiously in 1812 as it was in 1817. United States vs. Schooner Mary Hatt, 29 December 1812, Admiralty Case Files of the U. S. District Court for the Southern District of New York 1790-1842, NAUS, RG 21, film M919, 1812 roll 16; Schedule of Court Costs, 24 April 1813, United States vs. Schooner Mary Hatt, Prize and Related Records of the War of 1812, NAUS, RG 21, film M928, roll 3 case 37a. 141 One example involved the same Melancthon T. Woolsey who captained the Oneida when the schooner was seized. His inexperience in handling large sums of government money and wartime distractions and difficul- ties left Woolsey over $36,000 in debt to the government. In the 1820s, after his accounts were audited, Woolsey had his entire salary as a navy officer taken by the government until the debt was paid. After living on his rations allowance for a decade, in 1834 an Act of Congress increased navy officers’ salaries but abolished the ration pay- ments. Captain Woolsey was now working for free. In December 1835 he appealed to Congress for relief. House Journal, 24th Congress, 1st Session, 29 December 1835, p. 99. Despite the case involving a request to delay paying a debt owed to the government, Woolsey was successful in less than six months. An Act for the relief of Melancthon Taylor Woolsey, 24th Congress, 1st Session, Laws Chapter 75, 14 May 1836. Not so in the United States. There, the separation of powers between the judi- ciary, the executive and the two legisla- tive branches of government prevented a timely resolution of the case as each found itself limited by the rights and ac- tions of the others. Could the Crooks brothers have been more successful had they taken a differ- ent path� Probably not. Once the court became unable to pay what their decree required, the situation was so unique that the path to settlement was no longer clear. The matter might possibly have been re- solved more expeditiously had the broth- ers approached Congress immediately and repeatedly after they learned that the court could no longer pay them. Instead, they wasted time petitioning the execu- tive branch and the British government. There were also periods, often years-long, in which the claim lay dormant encour- aging a time-consuming delay for re-eval- uation by Congress when it was finally resumed. Why did the Crooks brothers persist 188 ONTARIO HISTORY for so long trying to resolve what must have eventu- ally appeared to be a hopeless case� Unfortunately, the historical record, at least that part so far discovered, is silent on this question. While the amount of money involved was not trivial, it was not so large as to be a major factor in the brothers’ finances. It appears the brothers and their heirs had a dogged determination to succeed in righting what they perceived, correctly, to be a wrong, and that “just one more try” would finally do it. Fortunately, unlike the protagonists in Samuel Clemens’ story, the case of the Lord Nelson ended successfully when the claim was finally paid by the American government. Although the amounts re- ceived by the heirs were relatively small, given the deteriorating economic situa- tion in Canada and the United States in 1930, they were certainly welcome. Jus- tice was finally done, but the delay meant that for the Crooks brothers, it was still “justice denied.” Left: Reading PA, The Reading Eagle, 5 De- cember 1927 Right: Montreal Ga- zette, 18 February 1930 
work_x6iywdmyd5hzrjdfx5aa74ivyy	----	Energy justice towards racial justice 551 editorial Energy justice towards racial justice Black and African American people face systematic disadvantages in energy costs and limited access to renewable energy benefits. Addressing these disparities is an important part of achieving racial justice. The COVID-19 pandemic and racial protests in response to the murder of George Floyd have highlighted systemic inequities affecting ethnic and racial minority populations. For example, in the US, Black and Latinx people have an increased risk of contracting the virus, and of experiencing severe illness in the case of infection1. The disproportionate impacts of COVID-19 for communities of colour are not limited to the illness itself. COVID-19 is expected to increase the prevalence of energy poverty as households face higher energy bills from being at home more, particularly during the summer months, and unemployment that makes these bills more difficult to afford2. In this way, too, African American households are at greater risk, as they already face higher rates of energy poverty than other racial groups (they account for nearly half of energy-poor households in the US3) and they are more likely to receive disconnection notices and experience utility shut-offs4. The higher rate of energy poverty among African Americans has been attributed to a history of racist housing policies that have segregated African Americans in low-resource neighbourhoods4. Consequently, African Americans are more likely to live in older homes with structural deficiencies and poorly functioning energy infrastructure4. These energy inefficient homes require more energy to heat or cool to comfortable living conditions, resulting in a higher energy burden. As examined by Dominic Bednar and Tony Reames in a Review in our May issue, the US has federally-funded energy programmes that ostensibly address energy poverty5. However, funding for the Weatherization Assistance Program (WAP), which provides eligible low-income families with cost-effective energy efficiency upgrades, pales in comparison to that for the Low Income Home Energy Assistance Program (LIHEAP), which provides energy bill assistance to subsidize high energy expenditures. This indicates a preference for short-term solutions based on a narrow definition of energy poverty focused on affordability (LIHEAP) over programmes such as WAP, which aim to provide a more sustainable, long-term solution with a broader range of benefits, including for public health5. Notably, it is programmes like WAP that would go toward addressing the consequences of structural racism — in the form of residential segregation policies — that have led to higher rates of energy poverty among African Americans4. In fact, it has been argued that weatherization and energy efficiency initiatives could be a form of restorative justice for this community4. As Sanya Carley and David Konisky describe in a Review in this issue, the disproportionate prevalence of energy poverty within communities of colour is one of the inequities that could be perpetuated by the clean energy transition, assuming it increases the near-term costs of energy. However, justice considerations for energy transitions are not just about disproportionate burdens, but also disparity in the distribution of benefits, such as access to employment opportunities in the clean energy economy. Here, too, there is evidence of systematic disadvantage on the basis of race; only 8% of the US energy efficiency workforce is Black or African American, compared to the national average for the overall labour force of 12%6. There is also evidence of racial disparity in access to the benefits afforded by low-carbon technologies. For example, Black- and Hispanic-majority neighbourhoods in the US have significantly fewer rooftop solar photovoltaics (PV) installed, even after accounting for differences in household income and home ownership7.This suggests the possible influence of systematic racial and ethnic biases, such as less initial deployment of PV in minority neighbourhoods, which limits processes of social dispersion that promote more widespread PV adoption. This uneven distribution in deployment may in turn reflect a lack of diverse representation in decision-making at solar firms. African Americans are not the only vulnerable group that must be considered to ensure just and equitable energy transitions. Indeed, many of the issues described above also apply to low-income groups, the elderly, those with disabilities, women and other minorities. Nor are energy justice and equity issues unique to the US. But vulnerable groups differ in the root causes of their vulnerability, which result in different susceptibility to adverse impacts and necessitate different solutions and protections. For instance, a study in the southwestern US found that elderly people and those with disabilities had greater bill increases than non-vulnerable counterparts when moved to time-of-use electricity rates, whereas other vulnerable groups included in the study — low-income, Hispanic, African American or households with young children — did not. Meanwhile, Hispanic households and those with disabilities experienced worse health outcomes on time-of-use rates8. Understanding how different forms of vulnerability manifest and interact with energy policies and programmes in different contexts is essential to avoid exacerbating existing injustices. A clean energy transition will require innovation in renewable energy technologies, but for these to achieve their transformative potential the institutions and systems that support existing fossil fuel regimes must be dismantled, a process known as exnovation9. Similar exnovation is needed to pave the way for change to other societal systems currently under scrutiny. The COVID-19 pandemic may prove to be the kind of large-scale disruption that expedites this process. Racial justice considerations must be front and centre as society starts to imagine what the new normal will look like, in the energy sector and beyond. ❐ Published online: 14 August 2020 https://doi.org/10.1038/s41560-020-00681-w References 1. Oppel Jr., R. A., Gebeloff, R., Lai, K. K. R., Wright, W. & Smith, M. The fullest look yet at the racial inequity of coronavirus. The New York Times (5 July 2020); (https://www.nytimes.com/interactive/2020/07/05/us/ coronavirus-latinos-african-americans-cdc-data.html 2. Graff, M. & Carley, S. Nat. Energy 5, 352–354 (2020). 3. Drehobl, A. & Ross, L. Lifting the High Energy Burden in America’s Largest Cities: How Energy Efficiency Can Improve Low Income and Underserved Communities (American Council for an Energy-Efficient Economy, 2016); https://www.aceee.org/sites/ default/files/publications/researchreports/u1602.pdf 4. Lewis, J., Hernandez, D. & Geronimus, A. T. Energy Effic. 13, 419–432 (2020). 5. Bednar, D. J. & Reames, T. G. Nat. Energy 5, 432–439 (2020). 6. US Energy Employment Report (US Department of Energy, 2020); https://www.usenergyjobs.org/ https://static1.squarespace. com/static/5a98cf80ec4eb7c5cd928c61/t/5ee78423c6fcc20e0 1b83896/1592230956175/USEER+2020+0615.pdf 7. Sunter, D. A., Castellanos, S. & Kammen, D. M. Nat Sustain 2, 71–76 (2019). 8. White, L. V. & Sintov, N. D. Nat. Energy 5, 50–60 (2020). 9. Davidson, D. J. Nat. Energy 4, 254–256 (2019). Nature eNergy | VOL 5 | AugusT 2020 | 551 | www.nature.com/natureenergy http://crossmark.crossref.org/dialog/?doi=10.1038/s41560-020-00681-w&domain=pdf https://doi.org/10.1038/s41560-020-0582-0 https://doi.org/10.1038/s41560-020-0641-6 https://doi.org/10.1038/s41560-020-00681-w https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdc-data.html https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdc-data.html https://www.aceee.org/sites/default/files/publications/researchreports/u1602.pdf https://www.aceee.org/sites/default/files/publications/researchreports/u1602.pdf https://www.usenergyjobs.org/ https://static1.squarespace.com/static/5a98cf80ec4eb7c5cd928c61/t/5ee78423c6fcc20e01b83896/1592230956175/USEER+2020+0615.pdf https://static1.squarespace.com/static/5a98cf80ec4eb7c5cd928c61/t/5ee78423c6fcc20e01b83896/1592230956175/USEER+2020+0615.pdf https://static1.squarespace.com/static/5a98cf80ec4eb7c5cd928c61/t/5ee78423c6fcc20e01b83896/1592230956175/USEER+2020+0615.pdf http://www.nature.com/natureenergy Energy justice towards racial justice 
work_xdls4v3twjge5elzef7gpf5y5e	----	Youth Justice and Health: An argument against proposed changes to the Youth Criminal Justice Act 1ADOLESCENT HEALTH COMMITTEE, CANADIAN PAEDIATRIC SOCIETY | POSITION STATEMENT Youth Justice and Health: An argument against proposed changes to the Youth Criminal Justice Act AS Elliott, DK Katzman; Canadian Paediatric Society Adolescent Health Committee Summary The Canadian Paediatric Society is deeply concerned about the negative effects on the developmental, psychological and emotional health of young offenders if the Youth Criminal Justice Act is amended as proposed [1]. Canada currently has a youth justice system that reflects the United Nations (UN) Convention on the Rights of the Child, and acknowledges that youth (under 18 years) have not developed full moral and ethical responsibilities and cog- nitive abilities to process criminal intent. Changing Canada's youth crime law to achieve stiffer sentences for youth 14 years and older convicted of serious violent offences such as mur- der or manslaughter has the potential for serious negative consequences. There are also implications associated with no longer allowing publication bans on cases involving youth who commit violent crimes. Evidence shows that treating adolescents as adults in the Canadian criminal justice system puts them at serious health and human rights risks—including trauma, violence and abuse—and interferes with their cognitive, emotional and psy- chological development [2][3]. Studies show that rates of de- pression, anxiety disorders, attention deficit/ hyperactivity disorder (ADHD) and substance abuse are higher among youth in custody than among youth in the general population [4][5]. Evidence suggests that transferring youth to adult facili- ties generally leads to more recidivism—including violent crime—compared with youth retained in the juvenile justice system. The adult justice system is neither designed nor equipped to address the developmental needs of adolescents, which creates dangerous gaps in services, education, and healthcare. Thus, such transfers can do more harm than good [6]. Canada has ratified the UN Convention on the Rights of the Child, which explicitly deals with child-specific needs and rights and requires states to act in the best interests of the child. According to Article 37, “Children who break the law should not be treated cruelly. They should not be put in prison with adults, should be able to keep in contact with their families, and should not be sentenced to death or life imprisonment without possibility of release.” International law binds countries like Canada to respect the Convention. Developmental differences Sensible and effective public policy around youth justice must reflect the fact that adolescents are different from adults. The current Youth Criminal Justice Act (YCJA), which is based in evidence, supports rehabilitation and reintegration. It recog- nizes that society shares a responsibility to guide them into adulthood and to address their developmental challenges and needs. Evidence from developmental research clarifies that adoles- cents, because of their immaturity, should not be deemed as culpable as adults [2]. Adolescent traits that mitigate culpabili- ty include diminished decision-making capacity, susceptibility of peer influence, and unformed character [3]. Emerging neu- ro-scientific research reveals that young people’s brains are not fully developed to allow for adult-level reasoning and weighing of consequences. Executive functions, including de- cision-making, consideration of alternatives, planning, setting long-range goals, and organization of sequential behaviour, are associated with the prefrontal cortex, which does not fully mature until well beyond age 18 [7]. Adolescents in custody also require both physical and mental health assessments, and guidelines for both short- and long- term placement—as described in the CPS statement on health care standards for youth in custodial facilities [5]—should be followed. It is estimated that 70% of incarcerated adolescents may suf- fer from a mental disorder [8]. The significant needs of so many youth for mental health services will not be met in an already strained adult justice system. 2 | YOUTH JUSTICE AND HEALTH: AN ARGUMENT AGAINST PROPOSED CHANGES TO THE YOUTH CRIMINAL JUSTICE ACT Juvenile vs. adult facilities There is also evidence that adolescents released from adult fa- cilities are more likely to re-offend than those sentenced to ju- venile facilities [3][6]. Social context is critical for youth to successfully reach devel- opmental milestones, to transition to adulthood, and to stop committing crimes [2]. Being placed in an adult facility may have long-term consequences on a youth’s emotional and psy- chosocial development. Adult facilities are traditionally based on punishment, and turn prisoners into adversaries. Rehabili- tation programs are sparse, and older prisoners may be men- tors in crime for younger offenders. On the other hand, juvenile facilities recognize that adoles- cents have developmental needs. The staff-to-offender ratio is greater, staff attitude more therapeutic, and more programs are available that lead to better outcomes, and reduced recidi- vism [2][9]. Deterrence and denunciation Among the proposed changes to the Youth Criminal Justice Act, deterrence and denunciation would be principles guid- ing the sentencing of young offenders. Additionally, anyone 14 years and older who is convicted of murder or another se- rious, violent crime would no longer remain anonymous. These concepts of deterrence and denunciation are not sup- ported by developmental theory. Adolescents lack “future ori- entation”: They tend to focus on the here and now and are less likely to think about future consequences. Because ado- lescents may discount risks and calculate rewards differently than adults, they cannot be held accountable to the same de- gree. Adolescents are more impulsive and tend to take more risks [2]. Scott et al found that “little evidence supports the claim that adolescents are deterred from criminal activity by the threat of harsh sanctions.”[2] The proposed measures to hold young offenders accountable to their victims and the larger community, and to ensure that violent or serious repeat offenders 14 years and over are tried as adults, are not based in evidence and have actually been shown to increase recidivism. The literature does not support these proposed changes, which may in fact lead to even worse outcomes for these youth [6]. Recommendations The Canadian Paediatric Society recommends the following: • The federal Youth Criminal Justice Act should not be amended as proposed. • International law binds Canada to respect the UN Con- vention on the Rights of the Child and explicitly states that children should not be put in prison with adults. Youth should only serve their sentence in a facility that is exclusively limited to youth. • The federal government should work with provincial/ter- ritorial governments to establish a national youth crime prevention strategy, including early detection and treat- ment of mental and behavioural health issues that might otherwise lead to criminal activity. • Youth convicted of a crime and incarcerated should be provided developmentally -appropriate mental and physi- cal health care, as well as rehabilitation and educational services, consistent with Canada’s commitment to the UN Convention of the Rights of the Child. • Health professionals—along with other youth-serving sec- tors including education and child protection services— should assume a more active role in advocating for youth in the criminal justice system. • Any future amendments to the Youth Criminal Justice Act must consider the rights of youth and their mental, physical, developmental, and educational needs. References 1. Minister of Justice, House of Commons Canada, Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts. First Reading, March 16, 2010. 2. Scott ES, Steinberg L. Adolescent Development and the Regulation of Youth Crime. Project Muse. The Future of Children 2008;18:15-33. 3. Steinberg L. Introducing the Issue. Project Muse. The Fu- ture of Children 2008;18:3-14. 4. Canadian Institute for Health Information Improving the health of Canadians: Mental health, delinquency and crimi- nal activity. (Accessed May 19, 2011). 5. Frappier JY, Sacks D; Canadian Paediatric Society, Adoles- cent Health Committee. Health care standards for youth in custodial facilities. Paediatr Child Health 2005;10:287-9. 6. Hahn R, McGowan A, Liberman A, et al. Effects on Vio- lence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to Adult Justice System. A Report on Recommendations of the Task Force on Community Preventive Services. MMWR 2007;56:1-11. 7. Giedd JN. The teen brain: Insight from neuroimaging. J Adolesc Health 2008;42:335-43. 3ADOLESCENT HEALTH COMMITTEE, CANADIAN PAEDIATRIC SOCIETY | 8. Kutcher S, McDougall A. Problems with access to adoles- cent mental health care can lead to dealings with the crimi- nal justice system. Paediatr Child Health 2009;14:15-8. 9. Lipsey MW, Wilson DB, Cothern L. Effective Intervention for Serious Juvenile Offenders. U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. Juve- nile Justice Bulletin. April 2000. ADOLESCENT HEALTH COMMITTEE Members: Franziska Baltzer MD; Johanne Harvey MD; De- bra K Katzman MD; Stan Lipnowski MD (board representa- tive); Jorge Pinzon MD (chair); Danielle Taddeo MD (2003-2009) Liaison: Margo Lane MD, CPS Adolescent Health Section Principal authors: April S. Elliott MD; Debra K Katzman MD Also available at www.cps.ca/en © Canadian Paediatric Society 2013 The Canadian Paediatric Society gives permission to print single copies of this document from our website. For permission to reprint or reproduce multiple copies, please see our copyright policy. Disclaimer: The recommendations in this position statement do not indicate an exclusive course of treatment or procedure to be followed. Variations, taking in- to account individual circumstances, may be appropriate. Internet addresses are current at time of publication. 
work_xdtspqg3zzh5pdvuzztytutwsy	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221743889 Params is empty 221743889 exception Params is empty 2021/04/06-03:20:43 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221743889 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:43 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_xgjqmf3hwjbg3nhf2ofnzdhy4m	----	HEALTH CARE AND GLOBAL JUSTICE 2472 HEALTH CARE AND GLOBAL JUSTICE Tenth World Congress on Bioethics Singapore, 28 July 2010. The Hon. Michael Kirby AC CMG 1 TENTH WORLD CONGRESS ON BIOETHICS SINGAPORE, 28 JULY 2010 HEALTH CARE AND GLOBAL JUSTICE*  The Hon. Michael Kirby AC CMG  Australia HOW I GOT HERE Why am I here? An invitation from my old friend Professor Alastair Campbell, Director of the Centre for Biomedical Ethics in Singapore, and the provision of an air ticket secured my attendance But dig deeper? Why did you come? Because I am fascinated with the impact of internationalism on my own discipline, the law 1 . Law, in my youth, was unlike medicine, engineering, science and architecture. It was ever so local and, let‟s be frank, rather parochial or imperial. That feature was imposed by the constant need to find jurisdiction. Now, law is awakening to the relevance and impact of ideas that are global, species-wide, concerned with the biosphere and even with the larger universe. All of this has happened in little more than 60 years since the Charter created the United Nations out of the ashes and tears of war and from the suffering that destroyed mighty empires that required the world to start again.  Address to the Tenth World Congress on Bioethics, held in Singapore, on 28 July 2010. * Former Justice of the High Court of Australia (1996-2009); former member of UNESCO International Bioethics Committee (1996-2005); member of the UNAIDS Reference Panel on HIV and Human Rights (2000-); member of the UNDP Global Commission on HIV and the Law (2010-); Gruber Justice Prize 2010. 1 M.D. Kirby, “International Law – The Impact on National Constitutions”, 21 American Uni International L Rev 327 (2006). 2 Yes. We know all that. But what possible right do you have to be here? Why do you have the presumption to think that bioethicists (who are philosophers, physicians, nurses, theologians, social scientists, policy analysts and other practitioners in a multi-disciplinary field 2 ), will have the slightest interest in what you have to say? What, pray, is your value- added that justifies your space in the programme? Well, as a judge, I decided many controversial cases: whether damages should be awarded for wrongful (unexpected) birth 3 ? And for so-called “wrongful life” 4 ? These and many other decisions demanded a judicial resolution of what were truly bioethical questions. Not enough, I hear you say. Who cares what a court, even a final national court, in Australia decides on such matters? This is the World Congress of Bioethics, my friend. We just do not have the time to look at the variable judicial decisions of courts in every country under the sun. No. You need much more than that to grab our attention. Well, there was my work in the Australian Law Reform Commission, so many years ago, that first introduced me to the issues of bioethics. What of the report we wrote so carefully on the dilemmas of the law on human tissue transplants? 5 Those proposals were adopted as law throughout Australia. They dealt with the definition of „death‟. With consent. With opting out or opting in. Payment for body parts, and so on. Well, that is getting closer. But it is still hardly global. 2 Ruth Macklin, “Bioethics and Public Policy in the Next Millennium – Presidential Address” (2001) 15 Bioethics [No.5], 373. 3 Cattanach v Mellchior (2003) 215 CLR 1. 4 Harriton v Stephens (2006) 226 CLR 52. 5 Australian Law Reform Commission, Human Tissue Transplants (ALRC7, 1977). 3 Well, there was my work on the inaugural Global Commission on AIDS of the World Health Organisation (WHO), which proclaimed the AIDS paradox and the need to protect the vulnerable so as to change their behaviour and safeguard the majority? Now, that‟s getting better, I hear you say. HIV/AIDS is truly a world problem. And there was also the later work on the UNAIDS Reference Group on HIV and Human Rights. And last month, I was appointed to the new Global Commission on HIV and the Law, established by the United Nations Development Programme (UNDP). This will tackle the way the law can actually support the struggle against HIV. And also how the law can sometimes prove an obstacle to effective responses to the pandemic: the intellectual property laws that greatly enlarge the costs of anti-retrovirals. Or the laws on women that render them specifically vulnerable and disempowered. Or the laws on the vulnerable groups at greatest risk of HIV: injecting drug users; sex workers; men who have sex with men. This is all very well, comes your response. But it is still rather particular. Remind yourself please that this is a general world congress on bioethics. If you want to talk about AIDS, you should have taken your paper to Vienna last week and delivered it there. In desperation, I invoke the decade I served as a member of the International Bioethics Committee (IBC) of UNESCO, between 1996 and 2005. During that time, I took part in the tail-end of the adoption of the 4 Universal Declaration of the Human Genome and Human Rights 6 and the International Declaration on Human Genetic Data 7 . And then the clincher. I was part of the IBC when it accepted the challenge of UNESCO Director-General, Koichiro Matsura and developed the Universal Declaration on Bioethics and Human Rights (“the Bioethics Declaration”). Surely it is useful to a World Congress on Bioethics to know something about the origins of that bold venture. To be aware of its objectives, course and achievements. And to be aware of some of the praise and criticism that has been voiced about it. I have more than the average reason to know about these things. The IBC elected me the chair of the drafting group that prepared the first text of the Bioethics Declaration, before it was sent off by the IBC to the Intergovernmental Bioethics Committee (IGBC) in preparation for its eventual submission to (and endorsement by) the General Conference of UNESCO. Alright, we give in. It looks as if we have got to listen to you. But please make your remarks relevant to the big themes of justice in our world. Tell us exactly how this Bioethics Declaration can have the slightest value to the world‟s struggle to achieve the Millennium Development Goals (MDGs) adopted by the leaders of 189 member countries in the United Nations 8 . How will the Bioethics Declaration be any more than another paper document, like so many other paper documents that lie gathering dust in United Nations offices in New York, Geneva or Paris? 6 Universal Declaration on the Human Genome and Human Rights, UNESCO, 29th Sess., 29C/Resolution 19. See G.P. Smith, “Quality of Life, Sanctity of Creation”62 Nebraska L Rev 709 at 732 (1984), and N Lenoir, “Universal Declaration on the Human Genome and Human Rights: The First Legal and Ethical Framework at the Global Level”, 30 Columbia Human Rts L Rev 537 (1999). 7 International Declaration on Human Genetic Data, UNESCO, 32nd Sess., 32C/Resolution. 8 The Millennium Development Goals appear in UNDP, The MDGs Through Socio-Economic Rights: Constitution Making and Implementation Handbook (2009), UNDP, Bangkok, 4. 5 How did all that all that effort of the IBC make one iota of difference to the MDGs and the attainment of the stated common ideals of „justice‟ in our world: 1) To eradicate extreme poverty and hunger; 2) To achieve universal primary education; 3) To promote gender equality and to empower women; 4) To reduce child mortality; 5) To improve maternal health; 6) To combat HIV/AIDS, malaria and other diseases; 7) To ensure environmental sustainability; and 8) To develop a global partnership for development? And above all, remember that we are meeting in Singapore. Please do not just give us a purely Western take on these issues. That is a risk of high level meetings held in Western capitals. But not here. Is it even really possible to talk about universal declarations? Are there any truly universal values that can be invoked to achieve the MDGs? Is this not another chimera by which Western ethicists try to stamp their values on the poorer, post-colonial nations of Asia, Africa and Latin America? Did not a famous Singaporean leader once assert the uniqueness of „Asian values‟? If there are such regional values, is it not a pipe-dream to propound universal or global values? Is the very idea of a World Bioethics Congress a kind of oxymoron? Are we all wasting our time at this Congress? Should we not just pack up, listen no more and go out to do the shopping? THE CONTEXT: UNITED NATIONS AND UDHR In the law, as well as in moral philosophy, context is critical. We cannot understand the Bioethics Declaration of UNESCO without appreciating 6 where it exists in the emerging new international legal order. That order, in turn, grew out of the Second World War; the discovery of the mass genocide of citizen populations and the suffering that followed it; a reflection on the devastating weapons of mass destruction that accompanied and ultimately finished it; and an appreciation of the technology that spread this information to every corner of the world. The attempt was made in 1945 in the United Nations Charter (and in 1948 in the Universal Declaration of Human Rights 9 ) to design a new world order for the safety of humanity, the more equitable sharing of its wealth and the defence of fundamental rights, efforts had been made in particular countries to express universal values that attach to being a member of the community. But earlier in the Western world, similar attempts had included the Magna Carta of England in 1215; the Bill of Rights of Great Britain of 1689; the American Declaration of Independence of 1776 and the French Declaration of the Rights of Man and of the Citizen of 1789. All of these instruments were greatly influential in the subsequent spread of the idea that human beings possess certain basic rights 10 . Even a powerful state or ruler could not take such rights away from them. The post-war images of the Nazi and other death camps were a powerful stimulus to the notion that, inhering in human beings, was a basic dignity that they could not be robbed of, even by apparently lawful means of the nation state. 9 Adopted and proclaimed by the General-Assembly of the United Nations, Resolution 217A(iii) of 10 December 1948. 10 G. Smith, “Human Rights and Bioethics” 38 Vanderbilt J Transnational Law 1295, 1297 (2005) referring to R. West, “Human Rights, the Rule of Law and American Constitutionalism” in T. Campbell et al. Protecting Human Rights, Instruments and Institutions (2003), 93-95. 7 Initially, it had been hoped that the United Nations Charter would itself contain a statement of fundamental rights. However, this proved impossible to draft in the time available 11 . One of the obstacles was the insistence of the representative of [Nationalist] China that the drafters of any such instrument should spend at least a couple of years in Asia learning about Asian perspectives of such things. In the end, this was not done. The Economic and Social Council of the United Nations established a Commission on Human Rights. It was mandated to present “a recommendation and report regarding ... an international bill of rights” 12 . The chair of that Commission was Eleanor Roosevelt, widow of the wartime leader of the United States. The principal drafter of the Universal Declaration of Human Rights (UDHR) was John P. Humphrey, a Canadian legal scholar. In the end, the UDHR was adopted by the General Assembly in December 1948 with no negative votes. There were, however, six abstentions. These were from the members of the Soviet Bloc, the Union of South Africa and Saudi Arabia. One reason for the high degree of consensus in the General Assembly was the generality and textual simplicity of the language of the UDHR. To this day, it remains a most powerful and influential document, expressing not just civil and political rights but also economic, social and cultural rights 13 . The latter reflected the insistence of the socialist countries and of the still small collection of member states from the developing world for whom the right to work 14 ; to 11 A. Deveraux, Australia and the Birth of the International Bill of Rights 1946-66, 27-28 (2005). 12 J. Morsink, The Universal Declaration of Human Rights: Origin, Drafting and Intent 4 (Philadelphia, 1999) (quoting the United Nations, Economic and Social Council, Resolution E/248 (1946)). 13 H. Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Georgia Journal of International and Comparative Law 287, 289-90 (1996). 14 Universal Declaration of Human Rights, arts.23-24. 8 have access to education 15 ; and to enjoy basic health care 16 were quite as important as the right of a fair trial, to free elections and protection from arbitrary state power. The UDHR, and the important international treaties that have grown out of its concepts, were influential in promoting the idea of binding legal obligations on the part of member states of the United Nations to respect the universal rights of their citizens and, indeed, of people everywhere. It is important to emphasise that the UDHR represented a stream of legal authority, largely drafted by lawyers. In that sense, it was a stream different from bioethics. Up to recent times, that field of discourse has grown around the practical experience and values of members of the health care professions, expressed by their practitioners and by philosophers and moralists. Bioethics was viewed by its practitioners as much more ancient in its organised principles than the relatively recent invention of international human rights law. Yet, so far as any organ of the United Nations was concerned, it was that law, rather than pre- existing moral principles (including bioethics), that was binding on the United Nations and its agencies. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) became involved in bioethics some time after the primary international instruments of human rights were adopted. UNESCO was not the only agency of the United Nations at first to claim this responsibility. There were a number of tensions between the UNESCO initiative of the IBC and the interests of the WHO to protect what it saw 15 Universal Declaration of Human Rights, art.26. 16 Universal Declaration of Human Rights, art.25. 9 as its own, largely medical, patch 17 . That tension was to evidence itself in the work of the IBC and, specifically, of its working group preparing the Bioethics Declaration. The first initiative towards such a Bioethics Declaration arose in October 2001. It occurred, in part, because of an expressed interest by the then President of the French Republic, M. Jacques Chirac. A desperately short deadline of two years was offered to the IBC to prepare a new universal instrument on bioethics. The IBC reported that this timetable could be achieved 18 . So, the drafting group was established. I was appointed its chairman. Contrary to some of the past practices of the United Nations, the group resolved to act in a transparent way. The successive drafts of the Bioethics Declaration were published on the UNESCO website. Comments, criticism and input were invited, and received, from experts and laymen worldwide. Governmental representatives attended, as observers. They followed the work of the drafting group that took place between April 2004 and January 2005. So did representatives of the interested agencies of the United Nations. Successive drafts were taken by UNESCO to regional meetings for consultations. In August 2004, a major public symposium was convened in Paris to which representatives of civil society organisations, religious bodies, scientists and other experts were invited. The final draft of the Bioethics Declaration was adopted by the plenary IBC. It was, however, then amended in important respects by the IGBC. As so amended, it was recommended by the Director-General to the 17 M.D. Kirby, “Human Rights and Bioethics: The Universal Declaration of Human Rights and UNESCO Universal Declaration of Bioethics and Human Rights” 35 Journal of Contemporary Health Law and Policy 309 at 317 (2009). 18 UNESCO, International Bioethics Committee, Report of the International Bioethics Committee on the Possibility of Elaborating a Universal Instrument on Bioethics (January 13, 2003). 10 General Conference of UNESCO, the agency‟s governing body. On 19 October 2005, that body unanimously (and without any contrary votes or recorded abstentions) adopted the Bioethics Declaration by acclamation 19 . Was the history of the UDHR to be repeated? CONTENTS OF THE BIOETHICS DECLARATION The Bioethics Declaration set out to address “ethical issues relating to medicine, life sciences and associated technologies as applied to human beings, taking into account their social, legal and environmental dimensions” 20 . It sought to provide a “universal framework of principles and procedures to guide States in the formulation of their legislation, policies or other instruments in the field of bioethics” 21 . The central provisions of the Bioethics Declaration comprise 15 basic rules, called “Principles”, propounded to define the obligations and responsibilities of the relevant actors in the field of bioethics. The arrangement of the Principles reflects a gradual widening of the objects being addressed. The initial Principles relate to individual human rights (human dignity 22 ; benefit and harm 23 ; and autonomy and individual responsibility 24 ). They then move to consider other relevant human rights (consent 25 ; privacy 26 ; equality 27 : and non-discrimination 28 ). 19 The Preliminary Draft Declaration on Universal Norms on Bioethics SHS/EST/CIB-EXTR/05/CONF. 202/2 (Feb 9, 2005) was transmitted with the recommendation that the final document be renamed Universal Declaration on Bioethics and Human Rights. It was by that name that the resolution was approved by the General Conference of UNESCO. See UNESCO press release, UNESCO General Conference adopts Universal Declaration on Bioethics and Human Rights (October 19, 2008). See Smith, above n10. 20 Bioethics Declaration, art.1(1). 21 Bioethics Declaration, art.2(a). 22 Bioethics Declaration, art.3. 23 Bioethics Declaration, art.4. 24 Bioethics Declaration, art.5. 25 Bioethics Declaration, arts.6-9. 26 Bioethics Declaration, art.14. 27 Bioethics Declaration, art.7. 28 Bioethics Declaration, art.7. 11 Broadening their focus still further, there is a Principle requiring respect for cultural diversity and pluralism 29 and for humanity as a whole (solidarity 30 ; social responsibility 31 ; and the sharing of benefits 32 ). Finally, broadest of all, Principles are stated which address our ethical obligations to all living beings and their environment (protection of future generations 33 ; and protection of the environment, the biosphere and biodiversity 34 ). The most innovative features of the Bioethics Declaration include: 1) The broadening of the focus of bioethics from the concerns of the human individual to the human community, to humanity generally and to the total environment 35 ; 2) The attempted synthesis of topics traditional to “medical” bioethics and concepts obviously derived from the now familiar language of international human rights law 36 ; and 3) The introduction of important new ideas into bioethics, most especially those concerned with notions of universal access to health care and notions of social responsibility, not just individual entitlements, in the framing of bioethical principles 37 . Probably the most innovative provision of the Bioethics Declaration was the proclamation in article 14 of the Principle of Social Responsibility and Health. Relevantly, this Principle states: 29 Bioethics Declaration, art.12. 30 Bioethics Declaration, art.16. 31 Bioethics Declaration, art.14. 32 Bioethics Declaration, arts.18-19. 33 Bioethics Declaration, arts. 5, 6, 17. 34 Bioethics Declaration, arts.17, 20-22. 35 Bioethics Declaration, art.1. 36 Bioethics Declaration, Preamble. 37 Bioethics Declaration, Preamble. The centrality of the Social Responsibility Principle has been recognised by the subsequent work of the IBC. See UNESCO, International Bioethics Committee, report On Social Responsibility and Health, Paris, 2010. 12 “14 (a) The promotion of health and social development for their people is a critical purpose of government that all sectors of society share. (b) Taking into account that the enjoyment of the highest obtainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition, progress in science and technology should advance: i. Access to quality health care and essential medicines, including especially for the health of women and children ...; ii. Access to adequate nutrition and water; iii. Improvement of living conditions and the environment; iv. Elimination of the marginalisation and exclusion of persons on the basis of any grounds; and v. Reduction of poverty and illiteracy.” Returning to the question of what possible influence the propounded Principles might have to address the problems enumerated in the MDGs, it can be seen that the Bioethics Declaration shifts the ground of international public discourse on bioethics from a largely medical outlook to one that engages the individual, society and community, members of the human family, and all living beings and the biosphere. Thus, the lens of bioethics has been opened by the Bioethics Declaration. The affirmative principle of health and social development is pronounced to be a duty. And virtually all of the eight MDGs are reflected in some way in the language of the Bioethics Declaration including poverty; hunger (lack of adequate nutrition and water); illiteracy; the health of women and children; the elimination of marginalisation that is so significant in combating HIV/AIDS; and attention to environmental sustainability that is such a feature of global thinking in the past decade. 13 If the question is asked, does the Bioethics Declaration, of itself, alter the world so as to assure that we attain the MDGs, the answer must be given candidly that it does not. But neither did the UDHR, of itself, ensure universal respect for human rights. Still, its provisions have been greatly influential in the independence constitutions of virtually every post-colonial nation in the world. The principles of the UDHR have spread widely to influence of international and local law and policy. The machinery of the United Nations, however imperfect, now provides means to submit every country in the world to global scrutiny of its human rights record and to do so on a regular, rotational basis. Special representatives of the Secretary-General and special rapporteurs of the Human Rights Council have provided leadership to the global community on difficult and sensitive ethical questions. I pay a particular tribute here to the Special Rapporteur on the Right to Health (Mr. Anand Grover of India) for his valiant presentation, and defence, of his recent report before the United Nations Human Rights Council. He had to fend off critics who could not see the links between oppressive laws against women and minorities, and the shame, isolation and violence suffered by identified groups that provide the breeding ground for HIV infection. Ordinarily, there are no armies to enforce the UDHR or the Bioethics Declaration. But there are now strong defenders of human rights, and specifically of the right to health. In the field of HIV/AIDS, and for the repeal of the counter-productive laws on adult private sexual conduct that are now urgently needed (operating, astonishingly enough, even in modern Singapore), the advocates include the Secretary-General of the United Nations himself (Ban Ki- 14 moon) 38 ; the administrator of UNDP (Ms. Helen Clark) 39 ; the High Commissioner for Human Rights (Ms. Navi Pillay) 40 ; and the Executive Director of UNAIDS (Mr. Michel Sidibé) 41 . As was intended, the new Bioethics Declarations makes a clear contribution to this global trend. It lifts the eyes of bioethicists from the patient‟s bedside and the hospital ward to a new insistence on the relevance to the bioethics discipline for society, the community, humanity, all living beings and the biosphere. This expansion of thinking is appropriate to the age of the internet and to the pressing global problems of HIV, malaria, nuclear proliferation and climate change, that present, with the challenge of the MDGs, the greatest bioethical issues of our time. RESPONSE TO THE BIOETHICS DECLARATION The response to the Bioethics Declaration has been mixed. Yet it has certainly included expressions of appreciation. Thus, Professor Thomas Faunce of the Australian National University wrote 42 : “The question of whether bioethics represents an independent, normative discourse from international human rights, enjoying its own unique more relationship-oriented non-rational and nuanced approach to norms, a distinctive history, institutional structures and continuing valuable functions has hardly been debated [until now], let alone resolved.” 38 Secretary-General Ban Ki-moon, speech at the International AIDS Conference, Mexico City, Mexico, 3 August 2008 quoted UNAIDS, UN Guidance Note on HIV and Sex Work (2009), Geneva. 39 It was Ms. Clark, as Administrator, who established the new UNDP Global Commission on HIV and the Law. 40 See N. Pillay, “Human Rights in the United Nations: Norms, Institutions and Leadership” (2009) EHRLR (Issue 1) 1 at 7. 41 In July 2010, in Geneva, he established the new UNAIDS Independent Commission on Prevention. 42 T.A. Faunce, The UNESCO Bioethics Declaration ‘social responsibility’ principle and cost-effectiveness price evaluations for essential medicines, 24 Monash Bioethics Review No 3, 10 (2005). 15 Professor Faunce has expressed the opinion that medical ethics (a traditional sub-set of bioethics) may eventually be subsumed under the discourse of international human rights law and hence that the Bioethics Declaration is a step on that inevitable path 43 . Other scholars have tended to similar conclusions, including Professors George Annas 44 and George Smith 45 in the United States. In support of this view, Professor Faunce has explained why the harmonisation of bioethics with the advancing juggernaut of international human rights law is both timely and inevitable 46 : “One of the main disadvantages of bioethics ... is that it is at risk of becoming an irrelevant normative discourse in the great social justice debates concerning access to essential medicines taking place in global fora such as the World Trade Organisation (WTO). In that context, it is international human rights that have made the strongest inroads ... Without instruments such as the [Bioethics Declaration], and in particular its „Social Responsibility‟ Principle, bioethics may be less able to metaphorically „get its foot in the door‟ concerning many of the great public health debates associated with the process of corporate globalisation.” As against these words of praise, there have been critics. Not without certain justification, some critics have lamented the lack of brevity, simplicity and elegance of the kind to be found in the UDHR. In part, these defects may be blamed on the very severe timetable under which the IBC was required to work, being approximately half the time that it took to draft the UDHR. In part, some obfuscation must be laid at the door of the IGBC, and of the governmental representatives and so-called 43 T.A. Faunce, Will Human Rights Law Subsume Medical Ethics? 31 Journal of Medical Ethics 173 (2005). 44 G.J. Anna, American Bioethics Crossing Human Rights and Health Law Boundaries (OUP, NY, 2005). 45 Smith, above n10. See also G.P. Smith II, “Pathways to Immortality in the New Millennium: Human Responsibility, Theological Direction or Legal Mandate” 152 St. Louis Uni Pub L Rev 447 at 451 ff (1996). 46 Faunce, supra note 43, at 17. 16 governmental „experts‟ who played with the IBC text, after it had been concluded. This was their perfect right. Thus, the intergovernmental representatives insisted on the inclusion in the Bioethics Declaration of a completely new so-called “Principle” on the special case of “Persons without the capacity to consent” 47 . The result was the introduction into the Declaration of a long, detailed and highly particular article of excessive specificity that was suitable for treatment (as the IBC itself originally proposed) either in a subordinate text or in editorial commentary. As well, the IGBC imposed on the Declaration a notion of “free and informed consent”. This failed to accord with what the past president, Professor Ruth Macklin, has insisted is the proper direction of concepts of consent for contemporary bioethics. In the health care context, this is no longer a one-off agreement, signed by the subject as a formality. Today, it is an ongoing principle to govern the relationship between the health care provider and the recipient. These changes, like others that the IGBC has made in the past 48 represent a typical instance of imposing political judgments on what was intended as a conceptual statement of broad ethical principles. There have been other critics. Thus, Professor George Smith, not without justification, has been critical of the concept of “human dignity”. That notion is propounded in the Preamble to the Bioethics Declaration as a kind of Grundnorm and a foundation for its Principles. Professor Smith has noted that the concept of human dignity is somewhat problematic. He suggests that “[It] is open to abuse and 47 Bioethics Declaration, art.7. 48 Such as the addition to the Universal Declaration on the Human Genome and Human Rights of the prohibition of reproductive cloning, which had not been specified by the IBC in its draft. 17 misinterpretation” 49 and that it “over-simplif[ies] a complex issue”. It can “encourage a form of paternalism, incompatible with the very spirit of self-determination” that lies at the heart of international human rights 50 . Professor Cheryl Macpherson has written in the Journal of Medical Ethics 51 complaining that the Bioethics Declaration lacks „academic rigour and credibility in the bioethics community‟. She expresses concern that there was insufficient evidence that its Principles were either universal or possible to implement. She complains that such Declarations need to be “responsive to the cultural and socio-economic realities of diverse stakeholders”, especially the poor and marginalised. She suggests that the drafters were unaware of the “complex interplay between culture, socio-economics, justice and human development”. She accepts that the Bioethics Declaration did a service by establishing the primacy of universal human rights in a volatile field and by insisting that “the interests and welfare of the individual should have priority over the sole interests of science or society”. She also acknowledges the value of emphasising the protection of individuals and groups experiencing special vulnerability. However, she pronounces disappointment in the final product. Self-evidently, that product is but a step on the evolution of bioethics into a closer relationship with wider notions of human rights law and with other global concerns – including the justice concerns so prominently stated in the MDGs. 49 Smith, supra note 10, Vanderbilt J Transnational Law at 1312. 50 Id. (citing Deryck Heyleveld & Roger Brownsword, “Human Dignity, Human Rights and Human Genetics”, 61 Modern Law Review 661, 662. 51 See C. Macpherson, “Global Bioethics: Did the Universal Declaration on Bioethics and Human Rights Miss the Boat?” (2007) 33 Journal of Medical Ethics 588. 18 Although article 12 of the Bioethics Declaration makes it clear that cultural diversity and pluralism have to be given “due regard”, it still insists that these considerations cannot infringe upon, or limit, the universal considerations of “human dignity, human rights and fundamental freedoms”. Nor can they alter the other Principles contained in the Bioethics Declaration. Those who propose the inevitability of international and universal human principles, to apply to human beings everywhere because of their essential characteristics, need to respond to the criticisms of Professor Macpherson. And in those criticisms, she is by no means alone. WHAT OF ASIAN VALUES? What, for example, are we to make of the so-called “Asian values” or “African values” that are sometimes propounded to justify departures and exceptions from human endeavours to pronounce universal principles such as are found in the Bioethics Declaration? Cultural and value differences between Asia and the West were suggested by several delegations at the Vienna World Conference on Human Rights, held in 1993. At that conference, for example, the Foreign Minister of Singapore warned that “universal recognition of the ideal of human rights can be harmful, if universalism is used to deny or mask the reality of diversity 52 . At the same conference, the delegation of the Peoples Republic of China also emphasised regional differences. The speaker for the Chinese Foreign Ministry stated that “individuals 52 Quoted W.S. Wong, “The Real World of Human Rights”, Mimeo, 1993 quoted by Amartya Sen, “Human Rights and Asian Values” (16 th Morganthau Memorial Lecture on Ethics and Foreign Policy), Carnegie Council, 1997, 7 at 9. 19 must put state‟s rights before their own” 53 . The former Prime Minister of Singapore, Lee Kuan Yew repeatedly defended the notion of “Asian values”. He pointed to their suggested effectiveness in promoting economic success. He suggested that there is a “fundamental difference between Western concepts of society and government and East-Asian concepts”. He has explained: “When I say East-Asians, I mean Korea, Japan, China, Vietnam, as distinct from South East Asia, which is a mix between the Sinic and the Indian, though Indian culture also emphasises similar values” 54 . These are interesting ideas. But they are by no means universally accepted by intellectual leaders of the Asian region. Nor by ordinary citizens, as I found when I served as Special Representative for the Secretary-General for Human Rights in Cambodia in the 1990s. Writing in 1997 on the subject “Human Rights and Asian Values”, the later Nobel laureate Amartya Sen (India) contested both the concept of regional exceptionalism to universal human rights and the notion that this was inherent in Confucian, and certainly Indian, ethical traditions. He said 55 : “[T]he reading of Confucianism that is now standard among authoritarian champions of Asian values does less than justice to the variety within Confucius‟s own teachings, to which Simon Leys, has recently drawn attention 56 . Confucius did not recommend blind allegiance to the state. When Zilu asks him „How to serve a prince‟, Confucius replies, „Tell him the truth even if it offends him‟. 57 ... Confucius is not averse to practical caution and tact, but 53 Quoted in John F. Cooper, “Peking’s Post-Tiananamin Foreign Policy and the Human Rights Factor” (October 1994) Issues and Studies 30, quoted in Sen, above n52, 10. 54 Fareed Zacaria, “Culture is Destiny: A Conversation With Lee Kwan Yew” (1994) 73 Foreign Affairs 113. 55 Sen, above n52, 17. 56 S. Leys, The Analects of Confucius (New York, Norton, 1993). Quoted Sen, above n52, 17. 57 II 14-22, p70. 20 does not forego the recommendation to oppose a bad government. “When the [good] way prevails in the state, speak boldly and act boldly. When the state has lost the way, act boldly and speak softly”” 58 . Far from being silent, Amartya Sen points to the endless arguing over ethical questions that takes place in India. And today, he could also point to the astonishing growth of the Indian economy which is occurring in the world‟s largest stable democracy, that regularly changes its government peacefully and which boasts of courts of high integrity that uphold basic human rights, as the Delhi High Court recently did in striking down as unconstitutional the inherited Judeo-Christian colonial law against homosexual conduct 59 . In short, Amartya Sen acknowledges that the champions of „Asian values‟ are often concerned with a need to resist Western hegemony. But he insists that human rights and political liberties are important in every country, including in the countries of Asia. And he concludes: 60 “The so-called Asian values that are invoked to justify authoritarianism are not especially Asian in any significant sense. Nor is it easy to see how they could be made into an Asian cause against the West, by the mere force of rhetoric. The people whose rights are being disputed are Asians, and no matter what the West‟s guilt may be (there are many skeletons in many cupboards across the world), the rights of Asians can scarcely be compromised on those grounds. The case for liberty and political rights turns ultimately on their basic importance and on their instrumental role. This case is as strong in Asia as it is elsewhere.” In essence, that was the reaction of the United Nations Vienna Conference on human rights of 1993 to the claims for regional 58 II, 14.3, p66. 59 Naz Foundation v Delhi and Ors [2009] 4 LRC 838 (Delhi High Court). 60 Sen, above n52, p30. 21 exceptionalism. Universal human rights, that Congress insisted, are just that: universal, international, non-derogable, interchangeable. In our world, we do not always attain these ideals. Achieving them sometimes takes much time. But that does not prove, or even suggest, that they do not exist. This is as true of my own country, Australia, as it is of any other. We have not always been respectful of the universal human rights of our indigenous peoples; of women; of Asian immigrants in the era of White Australia; of refugee applicants today; of the disabled; of people living with HIV and AIDS; of homosexuals; or of the poor and homeless. But the discourse about these subjects (in the field of bioethics and everywhere else) has certainly changed in the past 60 years. It is no longer a discourse about local history, culture and tradition. If it were, South Africa would still be an apartheid state; Australia would have a legally supported whites-only immigration policy; the United States would still have segregation and anti-miscegenation; China would still exclude entry by all people living with HIV or AIDS and India would still oppress its homosexual citizens with outdated criminal laws. Increasingly, and correctly, human rights is a universal discourse about human beings everywhere and their claim to equal rights. Nowhere is that claim more emphatic than in the assertion of the right to basic health care and in the general filed of bioethics. CONCLUSION: STEPS IN THE JOURNEY Therefore, for all its defects of content and drafting, the UNESCO Universal Declaration on Bioethics and Human Rights was an important step in the right direction. Bioethics can never again be divorced from the global concepts of human rights. That alone is a big step forward. It 22 is also a step of reconciliation between the traditions of the health care professions and those of law. Nothing less is acceptable in the organs of the United Nations. All of them, without exception, are bound by international human rights law. Nothing less is acceptable to the people of the world who today judge their governments and each other – sometimes quietly out of fear, often noisily out of assertion - against the criteria of universal human rights. Including, in the health care and bioethical setting. Progress has been made, step by step. It is the duty of this Congress to take the mind of humanity further along the enlightening path of the universal human rights that we all share. ******** 
work_xjvjfgiybncutdqrtkp24wawam	----	Whose justice? Contextualising Angola's reintegration process — Vrije Universiteit Amsterdam Skip to main navigation Skip to search Skip to main content Help & FAQ Home Profiles Research Units Research output Datasets Activities Prizes Press / Media Search by expertise, name or affiliation Whose justice? Contextualising Angola's reintegration process I.M. Ruigrok Social and Cultural Anthropology Research output: Contribution to Journal › Article › Academic › peer-review 183 Downloads (Pure) Overview Original language English Pages (from-to) 84-98 Number of pages 15 Journal African security review Volume 16 Issue number 1 DOIs https://doi.org/10.1080/10246029.2007.9627636 Publication status Published - 2007 Access to Document 10.1080/10246029.2007.9627636 203417Final published version, 159 KB Cite this APA Author BIBTEX Harvard Standard RIS Vancouver Ruigrok, I. M. (2007). Whose justice? Contextualising Angola's reintegration process. African security review, 16(1), 84-98. https://doi.org/10.1080/10246029.2007.9627636 Ruigrok, I.M. / Whose justice? Contextualising Angola's reintegration process. In: African security review. 2007 ; Vol. 16, No. 1. pp. 84-98. @article{04f8f11216564dea8b59de673c2e3dd4, title = "Whose justice? Contextualising Angola's reintegration process", author = "I.M. Ruigrok", year = "2007", doi = "10.1080/10246029.2007.9627636", language = "English", volume = "16", pages = "84--98", journal = "African security review", issn = "1024-6029", publisher = "Taylor and Francis Ltd.", number = "1", } Ruigrok, IM 2007, 'Whose justice? Contextualising Angola's reintegration process', African security review, vol. 16, no. 1, pp. 84-98. https://doi.org/10.1080/10246029.2007.9627636 Whose justice? Contextualising Angola's reintegration process. / Ruigrok, I.M. In: African security review, Vol. 16, No. 1, 2007, p. 84-98.Research output: Contribution to Journal › Article › Academic › peer-review TY - JOUR T1 - Whose justice? Contextualising Angola's reintegration process AU - Ruigrok, I.M. PY - 2007 Y1 - 2007 U2 - 10.1080/10246029.2007.9627636 DO - 10.1080/10246029.2007.9627636 M3 - Article VL - 16 SP - 84 EP - 98 JO - African security review JF - African security review SN - 1024-6029 IS - 1 ER - Ruigrok IM. Whose justice? Contextualising Angola's reintegration process. African security review. 2007;16(1):84-98. https://doi.org/10.1080/10246029.2007.9627636 Powered by Pure, Scopus & Elsevier Fingerprint Engine™ © 2021 Elsevier B.V. We use cookies to help provide and enhance our service and tailor content. By continuing you agree to the use of cookies Log in to Pure Vrije Universiteit Amsterdam data protection policy About web accessibility 
work_xm7bxs3dovabrbmqomg3tlnwhu	----	Four Arguments Against Compromising Justice Internally HAL Id: hal-02516227 https://hal.archives-ouvertes.fr/hal-02516227 Submitted on 3 May 2020 HAL is a multi-disciplinary open access archive for the deposit and dissemination of sci- entific research documents, whether they are pub- lished or not. The documents may come from teaching and research institutions in France or abroad, or from public or private research centers. L’archive ouverte pluridisciplinaire HAL, est destinée au dépôt et à la diffusion de documents scientifiques de niveau recherche, publiés ou non, émanant des établissements d’enseignement et de recherche français ou étrangers, des laboratoires publics ou privés. Four Arguments Against Compromising Justice Internally Samantha Besson To cite this version: Samantha Besson. Four Arguments Against Compromising Justice Internally. Oxford Journal of Legal Studies, 2003, 23 (2), pp.211–241. �10.1093/ojls/23.2.211�. �hal-02516227� https://hal.archives-ouvertes.fr/hal-02516227 https://hal.archives-ouvertes.fr Oxford Journal of Legal Studies, Vol. 23, No. 2 (2003), pp. 211±241 Four Arguments Against Compromising Justice Internally S A M A N T H A B E S S O N * AbstractÐThis article examines whether legal compromise on matters of justice amounts to a desirable response to the problem raised by reasonable pluralism in politics. Attitudes toward compromise are ambiguous: it is generally seen as much as a valuable technique for settling conflicts by mutual accommodation as a prejudicial concession of one's integrity. The article aims to resolve this paradox by distinguish- ing cases where compromises of principle cannot be tolerated from those in which they can be. By developing Ronald Dworkin's distinction between internal and external compromises, the article shows that an internal compromise, that combines different conceptions of the same principle or of incommensurable and non-distinct principles, constitutes at the most a second-best alternative. Such a compromise fails to capture the core of our sense of law's intelligibility, justice, correct concept attribution and, finally, political integrity. By contrast, it is argued, external compromises of principle can be tolerated and may even be desir- able in some cases. In fact, many conceptions of external compromise regard democ- racy as a paradigm of political compromise. This view is assessed at the end of the article and it is suggested that democratic procedures can be understood as compro- mises qua process: they select one of the conflicting views held during deliberation, rather than necessarily combining them into an externally compromised outcome. 1. Introduction If there must be a compromise because people are divided about justice, then the compromise must be external, not internal; it must be a compromise about which scheme of justice to adopt rather than a compromised scheme of justice.1 Ronald Dworkin's reservations about what he also calls `checkerboard'2 statutes have puzzled many of Law's Empire's readers. Checkerboard statutes compromise * Dr. iur. (Fribourg), M. Jur. (Oxon.). Junior Research Fellow in Law, The Queen's College, Oxford and Lecturer, Law Faculty, University of Geneva. I thank the Swiss National Science Foundation without whose support I could not have pursued this research. Earlier drafts of this paper were delivered at a research seminar in jurisprudence and political theory, University of Oxford, May 2001 and at the IVR World Congress, Amsterdam, June 2001. I would like to thank all participants for their comments and criticism, and in particular Leslie Green, Scott Hershowitz, Wojciech Sadurski and Dale Smith. My special thanks to Nicos Stavropoulos for his detailed critiques, to John Gardner for his helpful suggestions, as well as to Nick Barber for his invaluable linguistic advice. I am also grateful to an anonymous referee for his or her comments; they enabled me to improve this paper considerably. 1 R. Dworkin, Law's Empire (1986) at 179. 2 See Dworkin, above n 1 at 435, n 6: checkerboard statutes are `statutes that display incoherence in principle and that can be justified, if at all, only on grounds of a fair allocation of political power between different moral parties'. Oxford Journal of Legal Studies, Vol. 23, No. 2, # Oxford University Press 2003; all rights reserved principles internally, that is to say in an unprincipled way, by allowing all compet- ing conceptions of the principles at stake to be reflected in the rules produced even if some of them are wrong or inconsistent, hence the checkerboard meta- phor. This is the case, for instance, of a statute that compromises the right to life by allowing abortions for women with blue eyes only. In spite of persistent reasonable disagreement about justice, there is often a need to converge on a single rule in some pressing matters. This could some- times even lead to compromising some of our views. But should we then really limit ourselves, as Dworkin suggests, to compromising externally about which of two or more concepts or conceptions of justice to adopt rather than proceed with a compromise internal to the content of our normative concepts of justice? The issue addressed in this article is the extent to which compromises on matters of justice are a desirable response to the problem raised in politics and the law by reasonable pluralism and the need to find a settlement of our moral conflicts. Many of us share an instinctively hostile reaction towards legal compromises over matters of principle which attempt to integrate conflicting conceptions of the same concept,3 or in which the content of one principle is compromised with unreasonable4 conceptions of another principle.5 In fact, most of us regard justice, as John Rawls claims we should, as the uncompromising virtue of human activity that should have priority over any other consideration.6 But how do we reconcile these intuitions with the respect we owe to reasonable disagreement over moral issues and with the duties of mutual accommodation in the law which we sometimes see as a consequence and which urge us to do more than simply camp on our dogmatic positions until a vote decides one way or the other?7 Furthermore, how can we explain our hostility towards compromise They `treat similar accidents . . . differently on arbitrary grounds' (Dworkin, above n 1 at 179). In this paper, I regard checkerboard statutes as the product of internal compromise and will only concentrate on the latter; when an internal compromise is struck between a principle and something else, the result is not principled and the way in which some cases are treated accordingly cannot be principled either. I do not intend, however, to discuss his approach to checkerboard statutes per se nor, more generally, his argument for integrity or coherence in the law as a whole; I will borrow some of his arguments, but am not endorsing nor defending Dworkin's account of integrity. 3 I will assume in this article that the argument one can make about unprincipled exceptions to a principle is analogous to the one that can be made about unprincipled exceptions to concepts. 4 I will not expand here on the notion of reasonableness, but let me briefly summarize my position: the kind of reasonableness that matters here is the reasonableness of a person, who in goodwill and given her entire personal circumstances, applies her reasoning capacities to a question, even if her position is something we regard as morally wrong, provided it is plausible in her circumstances. 5 See Dworkin, above n 1 at 178, 182: `We would prefer either of the alternative solutions to the checkerboard compromise'. On the lawyers' general reticence concerning moral compromise, see J.E. Coons `Approaches to court-imposed compromises: the uses of doubt and reason', 58 Northwestern University Law Review 750 (1964). 6 J. Rawls, A Theory of Justice (1971) at 3. See, however, for a critique of Rawls' own compromising of justice and equality through the difference principle, G.A. Cohen, `Incentives, Inequality and Community' in Tanner Lectures on Human Values (1992) 261 at 314, 328±9. 7 Contra Gutmann and Thompson, Democracy and Disagreement (1996), I do not regard mutual accommodation as encompassing deliberation; mutual accommodation is needed when it is clear that deliberation has not provided the parties with a settlement of the dispute. See A. Wertheimer, `Internal Disagreements: Deliberation and Abortion' in S. Macedo (ed.), Deliberative politics, Essays on Democracy and Disagreement (1999) 170. 212 Oxford Journal of Legal Studies VOL. 23 of principle within the law8 in the face of the widespread practice of bargaining and compromising over matters of fact, interest and even, sometimes, of principle within the political arena?9 In brief, then, attitudes toward moral compromise in politics are ambiguous.10 This ambiguity is even reflected in the definitions of the concept of compromise. Compromise is commonly seen as a fair technique for dealing with moral and legal pluralism and for settling conflicts by mutual concessions, but it is also sometimes regarded as hypocritical surrender. It seems difficult to draw a line between compromising one's moral convictions and compromising oneself and one's integrity. There is, in other words, an `air of paradox' around the connec- tion between morality and compromise: commitment to a moral principle means commitment to seeing it fully realized.11 But, in the context of everyday demo- cratic politics, when faced with reasonable disagreement, commitment to a moral principle may require us to be willing to compromise to some extent or, at least, to express moral goodwill and respect towards accommodating other people's con- flicting positions.12 The difficulty is that this will frequently amount to partially, or even completely, abandoning the principle defended in the first place. I will argue that this paradox can be explained away or tempered by distinguishing cases where moral compromises cannot be tolerated from cases where they can be or even are desirable.13 Although compromises may have a positive role to play in democratic politics, the latter should not necessarily be reduced to the `institu- tionalized art of compromise'.14 My aim in this article is to examine the extent to which our shared intuition against some compromises of principle is well-founded. First, I will draw a few distinctions inherent to the contestable concept of compromise. Second, I will discuss the prima facie justification of the various forms of moral compromise that may be reached in politics depending on the type of conflict and the princi- ples at stake. Third, I will examine the limitations and dangers of some forms of moral compromise. More specifically, I will advance four arguments showing why 8 I will restrict the scope of my analysis to moral compromises in the political process of law-making, rather than discuss the issue of political compromise of interests or the broader issue of moral compromise tout court. Note, however, that I do not share some authors' view (e.g. M. Benjamin, Splitting the Difference, Compromise and Integrity in Ethics and Politics (1990) at 1) who accept political compromises much more easily than moral ones, independently of any further qualification of the former's content; not all political compromises are compromises of interests and moral compromises in politics raise questions that are as complex as in the purely moral realm. I will come back to this point in the course of the essay. 9 It is common in the legal and political literature to understand democratic deliberation about justice as being not only oriented towards agreement, but also towards compromise as a more realistic form of mutual accommodation. See, for instance, J.P. MuÈ ller, Demokratische Gerechtigkeit (1993) at 148 who speaks of `konsens-oder kompromissor- ientierten Diskurse uÈ ber Richtiges'. 10 J. Carens, `Compromises in Politics' in Pennock and Chapman (eds), Nomos 31: Compromise in Ethics, Law and Politics (1979) 123 ff.; Benjamin, above n 8 at 4, 8 ff. See also P. Singer, Democracy and Disobedience (1974) at 40 by reference to Thoreau: `The notion of a compromise, many people seem to feel, is somehow degrading and incompatible with the idea of acting according to moral principle'. 11 A. Kuflik, `Morality and Compromise' in Pennock and Chapman (eds), Nomos 31: Compromise in Ethics, Law and Politics (1979) 38. 12 See C. Cohen, Democracy (1971) at 181±2. 13 See J. Halowell `Compromise as a Political Ideal' (1944) 54 Ethics 158 at 173. 14 T.V. Smith `Compromise: Its Context and Limits' (1942) 53 Ethics 1 at 2. SUMMER 2003 Against Compromising Justice Internally 213 compromise over justice that strikes a balance between conflicting conceptions of the same moral principle, or between conflicting principles one of the parties15 does not endorse or recognize as reasonable, is not desirable in the law and does not provide an adequate settlement of reasonable disagreement. In the fourth and last section I will assess the common the identification of democratic procedures with paradigms of compromise. 2. The Concept of Compromise A. A Few Distinctions At the most basic level, there are two rather different ways of understanding what is meant by `compromise', depending on whether the focus is on the process or the outcome dimension of compromise. In an outcome or `end-state' analysis, the resolution of a conflict can be characterized as a compromise if it results in some gain and loss for all, regardless of how the compromise was reached. This conception of compromise seems to be the one we use when we speak of `imposing a compromise solution'; the implica- tion of this phrase is that compromises are outcomes that can be characterized as such without reference to the process by which they are achieved. According to the `process' analysis, by contrast, a compromise is a certain way of achieving conflict resolution through `give and take' by each party and mutual accommodation of their differences, whatever the actual terms of the final settle- ment might be.16 This is the case when the parties have agreed to submit their dispute to the determination of a certain procedure, such as the democratic procedure.17 Such a conception of compromise is used when we speak of `reach- ing a solution through compromise'; it suggests that compromise is not an end result, but rather a special process for generating end results. It is interesting to note that, like compromises qua outcome, compromises qua process need not be the outcome of a compromise qua process themselves. Nor need they be the outcome of a compromise qua outcome; there could be consensus on using the majority rule, for instance. Although both dimensions may be encountered separately, what is understood as the standard case of compromise usually meets both characteristics.18 The standard compromise amounts both to a procedure of `give and take' and to an outcome that results in some gain and loss for all. It is important, however, to 15 I will focus, for the purpose of clarity, on dual conflicts and compromises, i.e. pure conflicts and compromises between two distinct principles, although political debates are rarely so bi-polarized in practice; people confront ethical decisions with all their principles and very often what seemed like a compromise between two principles will in fact affect other principles, such as the principle of non-discrimination for instance, thus undermining in some cases the advantages gained from compromising and preventing it from looking like a compromise at all. 16 See Kuflik, above n 11 at 39±40; M. Golding, `The Concept of Compromise: A Preliminary Inquiry' in Pennock and Chapman (eds), Nomos 31: Compromise in Ethics, Law and Politics (1979). 17 See Benjamin, above n 8 at 6±7. 18 Kuflik, above n 11 at 40; Benjamin, above n 8 at 12. 214 Oxford Journal of Legal Studies VOL. 23 keep this distinction in mind in order to avoid dangerous confusion, particularly about the role of compromise qua outcome within democratic procedures, as we will see in the last section of this paper. In the standard case of compromise qua outcome, to which I will be referring unless otherwise specified, a compromise amounts to a settlement that is not constitutive of a real agreement. It is usually reached by negotiation on some `middle ground' that `splits the difference' and `gives something to each side'.19 Such compromises may be accepted by the parties for different reasons and justifications:20 parties who cannot agree on A or B will accept compromise C even though none of its components is acceptable separately to either of the parties. It is therefore important to distinguish the true agreement,21 i.e. the full `endorsement' of the content of C,22 from the `acceptance' of C as the outcome of a compromise.23 The distinction therefore corresponds in a sense to the distinc- tion between true consensus and mere convergence on a modus vivendi, although not all modi vivendi are necessarily compromises. It is possible to distinguish two main types of compromise qua outcome when applied to matters of principle, depending on whether or not the trade-off affects the content of one of the principles in a principled way.24 First, external compromises. These are compromises about which principles or conceptions of justice should be adopted.25 More precisely, external compro- mises only affect the content of the principles or conceptions of justice at stake in a principled way. The exceptions made are principled, because they are based on another independent principle or conception. Hence, one could say that the outcome amounts to a third and independent principle, conception or scheme of justice, rather than a compromised one. For instance, although equality-based restrictions on public display of pornography are in one sense a compromise of the moral independence of pornography consumers, this compromise is recom- mended by the principle of moral independence itself, albeit limited in a prin- cipled way, and hence constitutes a new scheme of justice derived from moral independence.26 External compromises can be either distributive or integrative.27 Distributive compromises split the difference by giving both parties some of their claims, 19 See S. Macedo, Liberal virtues: citizenship, virtue and community in liberal constitutionalism (1991) at 72. 20 See J. Habermas, FaktizitaÈ t und Geltung, BeitraÈ ge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (1998) at 205. 21 The term `agreement' is ambiguous and is generally used, depending on the context, to indicate either the full endorsement and the belief in a principle or the mere acceptance of that principle. 22 See Boltanski and TheÂvenot, De la Justification, Les eÂconomies de la grandeur (1991) at 337: `Dans un compro- mis, on se met d'accord pour composer, c'est-aÁ-dire pour suspendre le diffeÂrend, sans qu'il ait eÂte reÂgle par le recours aÁ une eÂpreuve dans un seul monde. La situation de compromis demeure composite, mais le diffeÂrend est eÂviteÂ'. 23 See D. Luban `Bargaining and Compromise: Recent Work on Negotiation and Informal Justice' (1985) 14 Philosophy and Public Affairs 397 at 417. 24 This distinction should not be confused with Benjamin's (above n 8 at 20) distinction between external compromises, that take place between people, and internal compromises, that take place within oneself. 25 Dworkin, above n 1 at 179. 26 See R. Dworkin, A Matter of Principle (1985) at 365. 27 See Carens, above n 10 at 126±7 on the plurality of possible compromises along a continuum. SUMMER 2003 Against Compromising Justice Internally 215 either alternatively or at the same time; such compromises are slightly more satisfactory to both sides than failure to reach agreement at all. For instance, one party might agree on a progressive tax scheme that protects the poor in one case, in exchange for an agreement to renounce a social protection law that would impinge on rich people's property in another. By contrast, integrative compro- mises amount to a new understanding of the issue combining both conceptions or principles into a more complex and principled one.28 The question may arise, for example, whether inheritance tax is just. Suppose, for instance, that people disagree over the justice of this tax in virtue of supporting, on the one hand, the freedom to use one's private property as one wishes and, on the other, the equality of resources in society in general. An integrative compromise could take the form of a scheme of inheritance tax which recognizes both principles in a certain relation by setting tax rates that are less than confiscatory. Such ad hoc principled compromises should be distinguished from naturally compromised concepts, that is to say cases where a principled compromise is already conceptualized within an independent and coherent rule. The principle of paying one's creditors pro rata provides an example of this.29 Second, internal compromises. These amount to `compromised schemes of justice'30 in the sense that they affect the content of the chosen principle or conception of justice in an unprincipled way. The exceptions made to the prin- ciples or conceptions concerned are not based on another independent principle or conception. An example of a compromised scheme of justice such as this could be a tax cut scheme that justifies restrictions to the principle of equality by reference to efficiency and economic incentive concerns; these concerns are not usually regarded as independent principles.31 In the political and legal context, as opposed to a purely private context of bilateral bargaining,32 compromises can be struck by officials in very different institutions. Some authors have thus distinguished between judicial33 and legisla- tive compromises. In the present paper, I will not focus on any particular form of institutional compromise,34 but rather concentrate on their common feature 28 See on the origins of this distinction, M. Follet, `Constructive Conflict' in Metcalf and Urwich (eds), Dynamic Administration: The Collected Papers of Mary Parker Follet (1940). 29 See Coons, above n 5 at 788. 30 Dworkin, above n 1 at 179. 31 See Cohen, above n 6 at 313±14, 328±9 criticizing Rawls' difference principle on that very basis. 32 In this article I will not discuss the different methods of settlement that can lead to a privately negotiated compromise. See e.g. Kuflik, above n 11 at 52 ff. 33 See Coons, above n 5 at 753 who concentrates purely on judicial or `imposed' compromises, i.e. `the apportionment of right and duty between opposed litigants by a court according to a quantitative standard that is not limited to the favouring of one party to the exclusion of his adversary'. 34 I will not enter here into the political argument that opposes the role of adjudication in attributing concepts and determining what they are, to the more modest role of the legislature, that would allegedly restrict its function to determining what should be done in a particular case as opposed to what is the content of some moral principle; when the legislature deliberates as to what should be done, the issue of what the different principles at stake imply will necessarily be raised and the final decision will therefore reflect a view on what those concepts are. Moreover, the legislature is democratically more legitimized to establish the content of concepts than judges, who are less representative despite their greater independence and who suffer from the same or even worse (given their smaller number) epistemic limitations. Thus, if someone must make compromises within the law, it should be the legislature rather than the judiciary. 216 Oxford Journal of Legal Studies VOL. 23 when applied to conflicts of principle.35 Perhaps the most interesting common feature of institutional forms of compromise qua outcome is the weighing and balancing of the divergent principles or conceptions of the same principle; these may be brought before the institutions by individuals or may actually be part of the process of deliberation. Parties to the compromise are the officials in charge of the deliberation, such as representative members of a legislative assembly or judges. True, officials will often be called on to settle a dispute to which they are not party in the sense that they hold either one of the views disputed, and they will settle on one particular conception or principle at stake in the dispute. In such a case, compromise will not be manifested in the official decision.36 This rests on the assumption that democratically chosen officials should have justice in mind, and deliberate and vote on the grounds of what they think is the right or best answer for the community as a whole,37 and not of what the parties to the dispute before them or other non-represented interest groups believe.38 Before proceed- ing with the discussion of the justification and limitations of compromise of principles, a caveat is in order. B. A Caveat: The Disagreeable Nature of Compromise Compromise is one response to controversy over moral matters. As such, it should come as no surprise that the very concept of compromise is a contestable one. This contestability occurs at different levels. First, people might not only disagree about what is the proper justification principle in their dispute, but also about whether they should actually compro- mise at all.39 The broader issue raised here is that reasonable disagreement over the justice and fairness40 of a substantive matter extends to the justice and fairness 35 I am not questioning the differences in content among the disagreements at stake before the legislature and the judiciaryÐit is true that there will be more disagreements (and hence compromises) of interests within legislative deliberations than within judicial ones, for instanceÐbut only the differences in form among the compromises reached to settle disagreements of principle. 36 This may be the case when the parties do not agree on any precise compromise or are not entitled to settle their difficulties privately. 37 I disagree therefore with some authors' idea that a politician cannot but have dirty hands and take the responsibility of doing things he thinks are morally wrong. See for instance M. Walzer `Political Action: The Problem of Dirty Hands' (1973) 2 Philosophy and Public Affairs 160. Contra T. Nagel, `Ruthlessness in Public Life' in Mortal Questions (1979) at 74 and, most famously, M. Weber, `Politics as Vocation' in Gerth and Wright Mills (eds), From Max Weber: Essays in Sociology (1991) 77. 38 Thus, I do not agree with the idea some authors present that, when the official has no dilemma of her own on some issue or the officials have no disagreement with each other, they should, however, attempt to accommodate the diverging views of others in the community and of the parties in the procedure for instance through actual compromises; the principles of mutual respect and accommodation of our differences only hold among people who are situated within the same sphere of discourse and deliberation, such as, in this case, the officials themselves. This applies, of course, within the limits of some basic form of continuity and coherence with past decisions and laws; the principle of legal coherence and the efforts it implies for an official to replace her decision within her community's principles and past decisions as a whole prevent conflicts between officials' current and past conceptions of justice. Interestingly, coherence can, albeit not necessarily, lead in some cases to the adoption of external compromises. 39 This is provided, of course, that none of the criteria usually applied to settle conflicts of principles find application or remain uncontroversial. These criteria are, among others, the hierarchical criterion, the chronological criterion or the criterion of speciality. 40 I am not using `justice' and `fairness' in the restrictive Dworkinian sense of the terms. SUMMER 2003 Against Compromising Justice Internally 217 of either the decision-making procedures for resolving the dispute or the type of settlement.41 Faced with this difficulty,42 some proponents of compromise have claimed that moral judgement is the sole basis for the choice of compromise over other alternative forms of dispute settlement.43 It is to such arguments that I will turn when assessing the justification and limitations of compromise of principles. Second, even when people agree to compromise, when asked to do so with a conception they do not endorse, they may disagree over the reasonableness of that conception44 and thus over the moral desirability of a particular compromise. Third, even when they have agreed to a particular compromise, people might still disagree on what constitutes the right compromise between their competing views of justice.45 As we saw before, there may be many possible compromises along a continuum ranging from purely distributive compromises to integrative ones. Integrative compromises, for instance, may be reached either by simply splitting the difference along a continuum of possibilities or by splitting it along the lines that are dictated by an independent mediating principle agreed on by the parties. Some authors have argued that, all else being equal, any division other than `fifty-fifty' discriminates against one party.46 There is, however, no reason why both parties should always agree on such a principle of `equality in indeter- minacy' and meeting half-way once they have agreed on compromising.47 This ranking decision is made even more difficult when what is compromised over is neither divisible nor evaluable in monetary terms such as certain matters of principle. An example here might be the difficulty in striking an integrative compromise between the principles of desegregation and of equal facilities within the meaning of the principle of equal protection of the laws. Finally, even if the parties can agree on the best `middle ground', specific interpretations of that compromise will engender further persistent disagree- ments.48 These disagreements might then in turn call for further compromises. All these controversies show that compromise is neither an easy nor a definitive answer to disagreement, even when it is justified by the criteria I shall turn to now. 41 See also Smith, above n 14: `Ideals (justice for example) cannot be invoked to settle issues that involve quarrels as to what the ideals are'. On this issue of regress, see J. Fishkin, `Liberal Theory and the Problem of Justification' in Pennock and Chapman (eds), Nomos 27: Justification (1986) at 217. 42 Like Dworkin, above n 1 at 180 ff., I do not think that a general and objective argument of justice (or fairness, as a matter of fact [contra Dworkin, above n 1 at 179]) can be used as an argument for or against internal compromise independently of what the parties hold of the latter's justice. My reasons, however, are related to reasonable disagreement about these principles. 43 See Benjamin, above n 8 at 107 ff. 44 See for this instance of second-order disagreement, Wertheimer, above n 7 at 174. See for an example of the avoidance of this problem, Macedo, above n 19 at 75 who refers to the reasonable substance of moderation. 45 G. Gaus, Justificatory Liberalism: An Essay in Epistemology and Political Theory (1996) at 183. See also Carens, above n 10 at 126, 137. 46 Coons, above n 5 at 759, 803. 47 Contra Benjamin, above n 8 at 33; G. Sher `Subsidized Abortion: Moral Rights and Moral Compromise' (1981) 10 Philosophy and Public Affairs 361 at 370; Kuflik, above n 11 at 50. See for an example of this second-order form of disagreement, Gutmann and Thompson's (above n 7 at 88±9) critique of Sher's solution of a reasonable compromise on abortion. 48 Gaus, above n 45 at 183±4. 218 Oxford Journal of Legal Studies VOL. 23 3. The Justification of Compromise A. General The justification of moral compromise in politics ought to be argued for on a specific basis. Given the diversity of the objects of moral disagreement and its different shapes, the desirability of moral compromise is bound to vary. In order to assess its desirability, then, it is necessary to do so in the light of specific types of political conflicts. I propose to distinguish between the desirability of com- promises of interests and of compromises of principles.49 This second category will then be further divided between multi-principle and single-principle compromises. It is important to remember that talking of justification or desirability here is slightly exaggerated. The essence of the argument in this article is primarily negative; it simply aims to articulate the justifications underpinning the negative intuitions people share against some types of compromise of justice. It does not aspire to provide a general positive justification of the other prima facie morally desirable types of compromises.50 In order to undertake this task, the article first distinguishes the types of compromise that prima facie strike our intuitions as being tolerable from those that do not, without arguing for the adoption of apparently tolerable compromises. Second, it seeks to explain why the types of compromise that were identified as not being prima facie tolerable should be avoided. The remainder of this section corresponds to the first prong of the argument. First, whilst I will not attempt to establish the moral desirability of strategic compromises of interests and facts, I will explain why I think they should be tolerated when they take place. Second, I will then seek to distinguish compro- mises of principle that should be tolerated from those that should not be. B. Compromise of Interests In a political community not every conflict is generated by conflicting moral opinions. Difference in taste, preference or interests can also set people at odds. To borrow a famous example, let us imagine that I want to play the trumpet one evening and you want to do some algebra at the same time in the next apartment.51 As long as competing interests are compatible with basic rights and as long as what is at stake in the conflict is not their legitimacy or ethical 49 In spite of its widespread use in this context and elsewhere, it is incredible how this distinction is difficult to justify and maintain in most cases where matters of interest and of principle are intertwined; for instance, creating random parking zones will limit people's freedom of movement and the principle of equal treatment, etc. I will, however, for reasons of space, have to leave this issue for another paper. 50 Hence I leave aside the complex dilemma between priority or hierarchy, on the one hand, and conciliation or compromise, on the other, in case of conflicts of rights or principles. It suffices for the purpose of my article to argue that, whether or not there are some arguments for compromising in some cases of conflict of principles, these arguments do not hold in the case where the compromises are internal to those principles. 51 See Dworkin, above n 1 at 302 ff. SUMMER 2003 Against Compromising Justice Internally 219 importance,52 there is no moral obstacle to a compromise of interests. Interests and preferences are naturally divisible, as opposed to matters of principle which often form coherent wholes.53 In some cases, compromise of interests is not only tolerable but desirable. This is the case, for instance, when we would gain more from a compromised settle- ment than from failure to reach one.54 We therefore often accept splitting our differences of interests along any line, as long as doing so makes us all happy. This could be instantiated by the case of zoning, where parking spaces have to be distributed and a line drawn between certain areas. Such compromises are there- fore often referred to as strategic compromises. To illustrate this argument for the justification of strategic compromise, let us think of a case of factual uncertainty.55 In this case, the application of a rule or principle can be based on no greater probability of factual accuracy on either side of the dispute and the interest at stake is divisible, as when it is evaluated in money. For instance, one could imagine a paternity suit where the probabilities of paternity as well as the monetary support to the child are divisible objects. Such objects are easily compromised over when the factual evidence is uncertain and the parties who agree on the principle make conflicting claims of facts and interests.56 In such a case, dividing what is at stake between the parties seems like a fair solution.57 Given the general desirability of compromises of interests in democratic poli- tics, some proponents of the validity of compromises in the law have tried to identify conflicts of principles in politics with conflicts of interests.58 This has had regrettable consequences. Most cases of disagreement over principles of justice are not comparable to cases where the parties oppose their individual interests,59 though they may be intertwined.60 This liberal tendency to transform moral conflicts over principles into conflicts of interests masks the importance of moral disagreements in politics.61 52 Benjamin, above n 8 at 15±17. 53 See Benjamin, above n 8 at 7; Dworkin, above n 1 at 179. 54 Habermas, above n 20 at 204±5. 55 Questions of facts and questions of value are often closely intertwined, thus making this distinction difficult. 56 See J. Elster, Solomonic Judgements, Studies in the Limitations of Rationality (1989) at 100. 57 See Coons, above n 5 at 757. 58 It is interesting here to illustrate the distinction between compromises in matters of interests and compromises in matters of justice, with the Swiss mode of governance. The latter is characterized mainly by the ancient German model of governance which regards the common interest as a sum of particular interests rather than as something distinct from them. This conception of democratic politics explains the Swiss attachment to compromise and to the so-called `concordance-democracy'. See, e.g. V. BuÈ chler-TschuÈ din, Demokratie und Kompromiss (1980) at 35. For a critique, see M. Lendi, `Konsens-FaÈhigkeit zum Dissens' in Recht als Prozess, Festschrift Hans Huber (1981) 490 at 497 who speaks of `Konsens-verkrampfung'. 59 See Rawls, above n 6 at 3: `The rights secured by justice are not subject to political bargaining or to the calculus of social interests'. 60 See Carens, above n 10 at 130±1. 61 See I. Berlin, `Does Political Theory Still Exist?' in Laslett and Runciman (eds), Philosophy, Politics and Society (Second Series, 1969). On the opposite view, i.e. the emotivist conception of political settlements of conflicts as being bare compromises of subjective interests and preferences at the most, see R. Rorty, Contingency, Irony and Solidarity (1989) at 68 according to whom `all that is in question is accommodation, not synthesis'. 220 Oxford Journal of Legal Studies VOL. 23 C. Compromise of Principles (i ) General Unlike conflicts of private interests that are to be reconciled one way or another, differences between judgements of justice could prima facie be regarded as unsuitable for compromise.62 By contrast to interests, moral principles are not necessarily divisible entities.63 In some conflicts of principles or conceptions of what those principles amount to in a particular case, however, compromise might be seen as a tolerable or even desirable settlement of reasonable disagreement. In fact, many authors regard moral compromise as the appropriate answer to moral disagreement given the conditions of scarcity, uncertainty and complexity, that is to say the burdens of judgement that are typical of modern democratic politics. The circumstances of reasonable disagreement combined with the poli- tical need for a settlement64 have even been described as the `circumstances of compromise',65 by analogy to David Hume's `circumstances of justice'. According to George Sher, for instance, a moral compromise is appropriate if the `grounding' of one's principles is `problematical', if the opposing view is supported by `plausible sounding arguments', and `if thoughtful and intelligent people are unable to agree about the issues'. By accepting a `higher-order moral principle' of this sort, `we acknowledge both our own fallibility' and show respect for the status of others beside ourselves as moral agents.66 This duty of respect should lead the parties to tolerate and even to accommodate each other's views as much as possible, thus calling in some cases for compromises that will amount to showing even more respect for one's opponents' views than other forms of mutual accommodation.67 Sher's contention ignores the possibility that a respectful and peaceful accom- modation or settlement may also be achieved by other means that show just as much respect for the other party's view as compromising68 does and yet go 62 See Habermas, above n 20 at 206: `Weil die Kompromissbildung moralische Diskurse nicht ersetzen kann, laÈsst sich die politische Willensbildung nicht auf Kompromissbildung reduzieren'. 63 See Dworkin, above n 1 at 178±9. See also Benjamin, above n 8 at 7 on external compromise over matters of principle which does not necessarily entail an internal compromise, for principles are `indivisible goods'. It is interesting to see, however, that Carens' (above n 10 at 125) example of a donor who has to divide a sum of money, that is by essence a divisible good, between two researchers does not adequately illustrate the distinction Carens wants to draw between compromises of principle and compromises of interests in case of uncertainty as to the right answer. 64 See for an example of the attractive nature of compromise in politics where we need to act on the basis of a single rule or decision, Carens, above n 10 at 124 ff.: Carens contrasts the case of two eminent scientists who hold competing theories about the causes of cancer with the case of a donor who has to decide to which of them to give two million dollars; in the first case, a compromise is neither necessary nor appropriate for the two scientists will pursue their research until one of their theories is either proved or refuted, whereas in the second case, the donor is forced to act in the face of uncertainty and has to choose between giving the sum to the scientist he thinks is best given the circumstances, on the one hand, and splitting the amount between the two, on the other. 65 Benjamin, above n 8 at 24 ff. 66 Sher, above n 47 at 369. 67 See among others Kuflik, above n 11 at 51; Sher, above n 47 at 369; Benjamin, above n 8 at 72 ff.; D. Dobel, Compromise (1990); Macedo, above n 19 at 71±2; Gutmann and Thompson, above n 7 at 88±9. 68 See for instance Smith, above n 14 at 2 who holds that dictatorship is the only alternative to compromise: `It is this convergence that makes an ethical enterprise out of politics, which is the institutionalized art of compromise'. See also Benjamin, above n 8 at 32 who identifies the circumstances of disagreement and the need to converge with the circumstances of compromise. See also Kuflik, above n 11 at 51 and Carens, above n 10 at 126 ff. See also, in the rational choice context, Elster, above n 56 at 99: `Resistance to compromise must be due to the resistance to acknowledging the indeterminacy of fact or law'. SUMMER 2003 Against Compromising Justice Internally 221 further than mere toleration.69 This can be done, on the one hand, by settlements which promote mutual accommodation in a way that leads to a better under- standing of the other position or even to a change of opinion70 or, on the other, by fair procedures that can be used to choose between the options at stake. Part of the ambiguity that surrounds the justification of compromise in this respect is nourished by confusion about its exact meaning; some authors have conflated compromise with broader forms of `mutual accommodation'71 or `principled moderation',72 of which compromise qua outcome is in reality only one type.73 Principles of accommodation are based on mutual respect for diver- ging positions.74 They only require, however, that people try, even when they disagree reasonably, `to accommodate the moral convictions of their opponents to the greatest extent possible, without necessarily compromising their own moral convictions'.75 The parties could, for example, continue to reason together to reach `mutually acceptable decisions',76 by trying to understand the others' position better and by being ready to amend or change their own completely.77 Besides, the respect-based argument could even be said to strengthen the objection against compromise. Once the parties have accepted the desirability of reaching a settlement given the awareness of their mutual fallibility, the reason- ableness of the other party's view will call for more respect than the potentially equally mistaken, or even more mistaken `halfway' third view; this halfway posi- tion might not be reasonably held by anyone as a conception of justice per se.78 As a result, when the political community needs to act on a single view of justice, the parties will generally be more motivated out of respect to accommodate the other party entirely or to compromise procedurally in abiding by the outcome of a democratic vote choosing one of the views at stake, for example. In response, some authors have invoked the right to self-respect of the party, that would otherwise be called to bear the entire burden of the settlement out of respect for the other party's view.79 They argue that people cannot but choose to preserve the overall pattern of their lives as far as possible, even when compro- mising it to a certain degree, rather than upset it to the extent necessary to defer to 69 Contra Sher, above n 47 at 367±8 for whom there is no middle path between tolerating abortion and compromising over it. 70 See D. Wong `Coping with Moral Conflict and Ambiguity' (1992) 102 Ethics 777 at 780±2 who recommends compromise as one of the many principles of mutual accommodation only. 71 Gutmann and Thompson, above n 7 at 44, 88. For instance, the definition of compromise given by J. Bohman `Public Reason and Cultural Pluralism, Political Liberalism and the Problem of Moral Conflict' (1995) 23 Political Theory 253 at 263 corresponds to a general conception of mutual accommodation rather than of compromise stricto sensu. See also partly J. Waldron, Law and Disagreement (1999) at 204. 72 Macedo, above n 19 at 72. 73 See Lendi, above n 58 at 491. 74 See Macedo, above n 19 at 72; Gutmann and Thompson, above n 7 at 79. 75 Gutmann and Thompson, above n 7 at 3 (emphasis added). 76 Ibid at 1. 77 Ibid at 85. 78 See Luban, above n 23 at 415. 79 See Kuflik, above n 11 at 50±1; Benjamin, above n 8 at 37. 222 Oxford Journal of Legal Studies VOL. 23 a principled solution that others might prefer. This argument ignores, however, an important dimension of the problem. Self-respect is partly based on the respect one shows to other reasonable moral agents and cannot therefore be opposed to respect for others. It cannot lead to the adoption of a half-way solution that lacks true respect for them. Moreover, if respect for others cannot support a hybrid position which nobody actually defends before the compromise takes place, respect for oneself, a fortiori, cannot lead one to accept such a position. Another counter-argument may be found in Jeremy Waldron's account of the circumstances of political integrity or coherence,80 i.e. consistency in principle. According to him, compromise is more legitimate when officials are to take a decision among conflicting principles than it is in private situations. Whereas in the latter case it is understandable that individuals try to defend their conceptions of justice as much as possible, in the former case mutual accommodation matters more than individual conscience and compromises are the best way to ensure coherence among the different views represented in the law-making process or across the law as a whole.81 This argument does not hold, however. There are other ways than compromise to ensure coherence, both within each law or decision and across the law as a whole; provided one sees coherence as a virtue in a legal system, both forms of coherence may be realized by giving priority to a single principle or conception. Moreover, in the long run, less compromise will ensure more coherence across the law, as it is easier to cohere with past laws and decisions if they are not compromised than if they are.82 In the rest of the paper, therefore, the issue of the legitimacy of compromise will mostly be addressed separately from issues of coherence, even if the fourth argument I will use against internal compromise has been developed by some authors within the broader context of arguments in favour of or against coherence.83 In short, the general respect-based argument about the value of convergence and mutual accommodation of reasonable positions seems to cut both ways; it can justify compromise, but it can also lead away from it. Since I lack the space here to go into the details of other arguments for compromises of principles, I will not take position on their general justification. I will merely distinguish, among existing cases of compromise of principles, between those that can be tolerated and those that cannot, in order to argue more precisely against the latter in the 80 The terms `integrity' and `coherence' are used interchangeably in this paper. The former was first introduced by Dworkin, above n 1, but has since then also been used and defended by Waldron, above n 71. 81 See Waldron, above n 71 at 202. 82 See J. Raz, Ethics in the Public Domain (1995) at 312±13 on this point. See even Waldron, above n 71 at 194±5 for a similar contention. 83 Interestingly enough, some authors, like Dworkin, above n 1 at 79 ff. and Waldron, above n 71 at 202 seem to see external compromises as ways to ensure integrity or coherence, whereas others, like Raz, above n 82 at 312±13 invoke external compromises as counter-examples and arguments against coherence. All tend to agree, however, that the minimal principle of coherence within an individual statute or decision requires rejecting internal compro- mises: compare Raz, above n 82 at 314 ff. and Dworkin, above n 1 at 79 ff. I will come back to this argument later in the paper. SUMMER 2003 Against Compromising Justice Internally 223 next section. It is useful in this respect to distinguish between the justification of two distinct types of compromise in case of principled disagreement: multi- principle compromise and single-principle compromise. (ii) Multi-principle compromise Some moral conflicts derive from the opposition of two (or more) independent and competing principles that cannot all be satisfied on a particular occasion. There are two ways in which such conflicts of principles may be settled through compromise. Both forms of compromise are external ones. First, the parties might come to a distributive compromise, that is the acceptance of one of the conflicting principles in one case and of the other principle in another case. Second, an integrative compromise, that weighs and ranks the principles by introducing prin- cipled exceptions to them, will often be the most desirable settlement of the conflict. In terms of justification, if both parties endorse both principles, then it is easy to see that they will both be willing to compromise and agree on a ranking of the principles. If they do not endorse both principles, however, they may still recognize or acknowledge the opposed principle as a reasonable one to hold and see com- promise as a desirable settlement.84 Thus, for example, let us imagine a person who opposes the death penalty whatever the degree of culpability while another thinks it is always right. The former may agree, however, to compromise and accept its restricted use according to the degree of culpability, provided the principles on the basis of which the latter proposes to establish the degree of culpability are deemed respectable by the former. Of course, one problem when trying to reconcile conflicting independent principles is their potential inconsistency or incommensurability.85 Not all conflicts of value-laden principles,86 or value-principles, and their settlements face this difficulty, however, and it may be useful to distinguish two types of conflict.87 84 See Dworkin, above n 1 at 436 nn 8 and 9. Dworkin only refers to `recognizing' a principle of justice without necessarily `endorsing' it, but these statements imply a standard of reasonableness that conditions the recognition or acknowledgement of the principle as an independent principle that can justify a principled compromise. This point is similar to the one made by Waldron, above n 71 at 204±8 who acknowledges the limits of integrity and of the willingness to compromise when some of the principles to accommodate strike one party as being particularly unjust and unreasonable. Waldron does not, however, stipulate `thresholds of injustice beyond which integrity ceases to apply' and beyond which principles with which one disagrees become sufficiently unreasonable for compromise to become internal and undesirable. 85 I am hence assuming that not only values can be inconsistent and conflict, but also that they are sometimes incommensurable and that their conflicts cannot be settled in an objective or reasonable way. This is precisely where my account and Dworkin's diverge, since Dworkin's monistic conception of morality does accommodate neither conflicts of values and principles nor their incommensurability. See R. Dworkin, `Do Liberal Values Conflict?' in Lilla, Dworkin and Silvers (eds), The Legacy of Isaiah Berlin (2001) 73. 86 In this paper, I am dealing mostly with such value-laden principles. See N. MacCormick, `Coherence in Legal Justification' in Peczenik et al. (eds), Theory of Legal Science (1984) 235 at 237 on the relationship between values and principles in this context: `For any value, there is a principle according to which V either may be, or ought in the absence of countervailing considerations to be, or ought normally to be, or must in the absence of overriding considerations be, pursued or realised. Observance of principles is not an instrumental, but an intrinsic, means of realising values'. 87 See C. Larmore `Political Liberalism' (1990) 18 Political Theory 339 at 350 for this distinction. 224 Oxford Journal of Legal Studies VOL. 23 The first case is where values themselves are logically inconsistent and cannot be compared or ranked mutually.88 A second form of value conflict arises when two generally mutually consistent values recommend rival courses of action, in some (but not all) circumstances, that cannot be performed at the same time. Whereas in the first case, the usual way out of disagreement is to reject one value for the other, the settlement of the second case does not necessarily require withdrawal from our commitment to one of the values but instead leads us to seek some ranking of them. In some cases, however, the weighing and the subsequent ranking of the values are impossible, or at least indeterminate given the lack of comparability of the values in conflict and more precisely the absence of a common metric.89 It is important to keep in mind, however, that the verdict of inconsistency or incommensurability cannot be reached before the end of a substantive argument; it will only be issued when no compromise seems to satisfy any of the parties despite their mutual recognition of the conflicting principles. It might be objected that both parties may be wrong about consistency or commensurability of the principles with which they are willing to compromise their own principles, thus leading both parties to acquiesce in an erroneous theory.90 This is true, but the point is that we have no means of establishing the correctness and eligibility of a conception of a principle other than our own current views about its reason- ableness and hence of telling others that they are wrong when they are about to compromise inconsistent or incommensurable values.91 We can only do our best in determining what we think is the just result in each case while leaving open the possibility to improve our conceptions in future.92 It follows that my conclusion regarding the potential desirability of compro- mising over conflicting principles, recognized by both parties, does not hold if the principle with which one of them is asked to compromise is one she does not deem reasonable, independent, consistent or commensurable. For instance, one could imagine it were argued that one should compromise on the justice of imprisonment by granting bail to some detainees according to their eye colour 88 See T.M. Scanlon, What We Owe to Each Other (1998) at 358. 89 See Raz, above n 82 at 298, 317; R. Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise (1999) ch 4. Note that it is possible to strike a compromise among incommensurable values, but such a compromise cannot be objectively justified and is hence indeterminate morally. See Raz, above n 82 at 316±17 on the justification of local coherence among weightings of incommensurable values once a compromise between these values has been struck in a certain way. On incommensurability, more generally, see J. Raz, The Morality of Freedom (1986) ch. 13. 90 See Rawls, above n 6 at 3: `The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one'. 91 See B. Williams, `Liberalism and Loss' in Lilla, Dworkin and Silvers (eds), The Legacy of Isaiah Berlin (2001) 91 at 101. 92 I do not hold that we will necessarily converge or even individually get to the right answer after sufficient debate and critical reflection; epistemic limits and the burdens of judgement often prevent us from doing so. This fact does not prevent us from understanding each other, however, nor from communicating, contrary to what flows from the Wittgensteinian and dogmatic legacy of the necessary `agreement in judgement' implied in `understanding', nor does it make it a luxury to bother to engage in moral debate. All we need for the rational debate to seem worthwhile is to have a regulative ideal or hope of achieving rational consensus, rather than an unrealistic expectation that it will be achieved. SUMMER 2003 Against Compromising Justice Internally 225 or the day on which they were born.93 According to a distinction I mentioned earlier, such a compromise would amount to compromising a principle in an unprincipled way, i.e. internally, rather than externally.94 It is the least attractive kind of compromise over principles, for reasons I shall explain in the fourth section of this paper. (iii) Single-principle compromise By contrast to the first type of compromise of principles, the second form of compromise is not the product of a trade-off between independent principles, but it only involves a single principle. This occurs when a conception of this principle is affirmed by one group and rejected by another in favour of a different conception. Such conflicts can arise for two reasons. First, both conceptions may represent two equally eligible aspects or concep- tions of the same value-concept in the legal context95 which, sometimes or always, conflict with each other. I will call this first form of disagreement a case of metaphysical disagreement. One could consider the concept of equality as an example of a concept of which both equality of resources and equality of welfare might be equally eligible conceptions and appear reasonable to both parties, but do conflict with each other all the same. In this case, if we cannot reach a reasonable agreement, compromising might be as desirable as it was in the case of a conflict between two independent moral principles. Again, one may think of two forms of external compromise. On the one hand, the parties may agree to accept both conceptions of the principle, but in a distributive way. Thus, for instance, equality of resources may be recognized in one case, while equality of welfare is recognized in another. On the other hand, a more integrative form of compromise, that would rank both conceptions of the principle within the same principled scheme, could be found, provided of course both conceptions are not inconsistent. Thus, for instance, a principled scheme of equality may be estab- lished where equality of resources is given priority only as long as equality of welfare is guaranteed. Most of the time, however, given our doubts about the eligibility of both conceptions, and our awareness that one of us might be wrong or that our conceptions might be inconsistent, we tend to abstain from compromising. Thus, a disagreement that may have legitimate metaphysical origins becomes temporarily epistemic. This temporary change of nature affects the prima facie desirability of compromise over a single principle. 93 This seems to be the gist of Dworkin's argument (above n 1 at 436 n 8 and 9). 94 See Dworkin, above n 1 at 183 and 436. 95 This caveat is in order since the equal eligibility of the two conceptions of the same concept is not the result of a change of context so that two conceptions of equality, for instance, cannot be equally eligible in the legal context, but one of them could be so in the purely moral context. The reverse seems to be Dworkin's position about conflicting conceptions of the same concept than cannot compete with each other or contradict each other in the legal context, unless they are mistaken. This is due to Dworkin's views on conflicts of values and his faith in reaching as much coherence between our moral principles and values as possible through substantive moral argument. See Dworkin, above n 85 at 86 ff. 226 Oxford Journal of Legal Studies VOL. 23 This is the second type of disagreement to oppose two conflicting conceptions of the same principle. In this case one of the two conceptions is mistaken but it is uncertain which one.96 This is the most frequent form of moral disagreement in pluralistic societies given the burdens of judgement and reason that prevail. It is also the form of single-principle disagreement over which it is most counter- intuitive to compromise for reasons which I will develop in the fourth section of this paper. In a nutshell, such a compromise would be unprincipled and purely internal to the principle, to borrow the distinction I drew in the first section, thus integrating a mistaken conception with a correct one. Before addressing the reasons why internal compromise about justice is not desirable, a brief caveat is in order. When two rival conceptions of the same concept are proposed, they often also refer to other background principles. Thus, for instance, imagine that I assert that killing a fetus is not murder by relying on the principle of the dignity of the mother. Although the principles of the person- ality of a fetus and of human dignity are independent principles, they are com- bined in this argument. Imagine a situation in which abortion is permissible up to a certain point in the course of pregnancy. It would be hard to tell in such a case whether what is being compromised are two independent principles or two conflicting conceptions of life. This is because all concepts are intertwined in a complex web of meaning. Most legal cases where the application of a concept is limited by further constraints are not therefore necessarily internal compromises which combine a number of conceptions of the same concept. Rather, they may be cases where independent considerations embodied within a more complex legislative objective limit the application of a concept.97 4. The Limitations of Compromise Internal compromises stricto sensu combine either two conflicting but unequally eligible or inconsistent conceptions of the same principle, or the content of a single principle with another non-independent, unreasonable or inconsistent principle. There are many reasons why we should abstain from making such compro- mises. Of course, these reasons do not exclude the possibility that people will prefer to coordinate on an internally compromised solution rather than on none at all.98 Four arguments will now be advanced against such internal compromises. 96 The fact of disagreement does not imply that there is no objective truth and fact of the matter in the moral realm; such an assertion would call for a meta-ethical argument I am not prepared and do not need to make here. Moral pluralism can have objective grounds and epistemic disagreement may be the result of the numerous burdens of judgement which plague human reasoning. If there were no fact of the matter, disagreement and the belief that there is some truth to argue about could also be the result of the false realism that flows from the common use of moral language. The point is that important epistemic barriers and lack of agreement on how to get over them prevent us from establishing both the truth of moral judgements and a methodology for doing so in a universally acceptable way. 97 See Cohen, above n 6 at 314 for the distinction between a compromise of justice and a simple restriction of it. 98 See Dworkin, above n 1 at 180. See also Habermas, above n 20 at 204. SUMMER 2003 Against Compromising Justice Internally 227 Taken separately, each of these arguments has a limited scope, but all four must be understood in such a way as to support and complement each other.99 A. Inefficiency An argument sometimes made against internal compromise reflects its lack of workability or inefficiency. This argument has been advanced most famously by Dworkin.100 As an example of inefficient internal compromise, one could imagine a case where, in order to strike a compromise between people who think a fetus is a person and those who hold the contrary, the statute enacted says that a fetus is half a person and that accordingly only half of the respect due to human life is owed to it. Such a statute would not only be unintelligible, but completely unworkable: it would be impossible to deduce substantive answers to legal problems from it. However, most cases of internal compromise we can imagine, such as the permissibility of abortion for women with blue eyes only, for instance, are not actually impractical or unworkable. So, our intuition and the more general case against internal compromise must be founded on another broader argument that would establish why it is wrong for the parties to accept such a compromise in other cases too. B. Potential Injustice A second argument against internal compromise is that it seems an inappropriate response to cases where disagreement has epistemological origins.101 This, as we have just seen, is true of most disagreements in pluralistic societies. When people disagree about what justice is, they have strong views and opi- nions about what ought to be done. A compromise that gives something to each of the parties may well look to them as if it is leading them away from the right answer.102 Compromising on justice may even mean being unfaithful to what 99 This is also Dworkin's way of arguing against internal compromise, through a crescendo of different arguments which are all limited in their scope until the value of integrity is postulated. The difference with Dworkin's account of checkerboard statutes, however, is that my first three arguments hold and that integrity is not simply postulated at the end, but justified on its own before it is used as a fourth argument against internal compromise. In his account of checkerboard statutes, Dworkin, above n 1 at 79 ff. is not arguing primarily against internal compromise but for integrity, whereas I am interested here primarily in internal compromise and only instrumentally in integrity. 100 Dworkin, above n 1 at 182. 101 Given what I said earlier about false realism, I assume here that most people will think they are arguing about some common truth to which they have a limited access that is, with value pluralism, the cause of most of our disagreements. Besides, even if some of us are conscious relativists, it is sufficient for this second argument to work that one of the parties in the dispute be not. 102 Gaus, above n 45 at 184. It is important not to confuse this argument based on each party's concrete perspective about justice with a collective and more abstract argument based on the justice of such internal compromises in general, that I regard as doomed because of reasonable disagreement about justice, as I explained before. See on the opposition between concrete arguments of justice of outcome against internal compromises and the difficulty to make a more general argument of justice against them, Dworkin, above n 1 at 180. 228 Oxford Journal of Legal Studies VOL. 23 they believe to be the true meaning of the concept of justice103 and this justifies preferring some other solution to the internally compromised one. Deferring to a view one regards as wrong or at least unreasonable, either entirely or in a compromised way, amounts to taking a complete moral stance. Indeed, we should act only for reasons we believe to justify our action, i.e. only if we think that the action is justified. Since we hold our own views on the question not merely because they are ours, but because we believe them to be true, deferring to the other party's view we regard as wrong or unreasonable cannot be justified in the same way. The only justification for deferring or compromising would then be, according to Joseph Raz, to give other people's views a weight that we do not give our own.104 This explains why deferring to, or, worse, compromising with other views, in case of epistemic disagreement, is such a difficult thing to do. Furthermore, such a compromise might not look like a `compromise' to the parties, since it does not provide them with any sort of positive repercussion at all.105 An example may help to clarify the problem.106 Suppose half the people in a community hold the opinion `to each according to his need' and the other half `to each according to his work'. Each finds the other half 's conception of the principle of distributive justice reasonably unacceptable; eventually they compro- mise on `to each according to his work, unless his work does not suffice to meet his most basic needs: then we keep him afloat with transfer payments'. The compromised principle may very well look wrong to all the parties, since it contradicts and violates their conceptions of distributive justice and hence does not strike them as a positive outcome. Two counter-arguments have been put forward against this conscience-based critique of internal compromise in politics. The first one is that people should sometimes compromise on a position that both sides think is wrong in order to reduce the magnitude of potential moral error or injustice in one direction or the other. Thus, one may contend that, in everyday politics, internal compromise will prevent instances of injustice that would otherwise occur. According to Dworkin, for instance, `we cannot say that justice requires not eliminating any injustice unless we can eliminate all'.107 It seems indeed, to borrow Rawls' words, that `an injustice is tolerable when it is necessary to avoid an even greater injustice'.108 Although this argument is appeal- ing, it is too limited in its scope.109 103 See Dworkin, above n 1 at 180: `Both [parties] have a reason of justice for preferring some other solution to the checkerboard one'. See also Dworkin, above n 1 at 182: `I would rank the checkerboard solution not inter- mediate between the other two but third, below both, and so would many people'. See Halowell, above n 13 at 173: `Compromise, as a self-sufficient principle divorced from all considerations of truth and justice, is simply, in the last analysis, the ancient Trasymachian doctrine that might makes right'. 104 See J. Raz `Disagreement in Politics', 43 American Journal of Jurisprudence 25 at 27±8 (1998). 105 I owe this point to John Gardner. 106 This example is adapted from an example given by Luban, above n 23 at 415. 107 Dworkin, above n 1 at 181. 108 Rawls, above n 6 at 3. 109 See Wertheimer, above n 7 at 175. SUMMER 2003 Against Compromising Justice Internally 229 The first problem with it is that it is based on divisible cases of justice or injustice. Let us imagine, for instance, the number of death-row prisoners we could save if a compromise was struck where all blue-eyed detainees be liberated. Many claims based on principles of justice are not divisible in this sense, however. For instance, if the same disagreement applies to the liberation of one single prisoner, it is difficult to see how the injustice committed could be divided and hence reduced. Additionally, even if reducing the number of injustices in divisible cases of justice can be a legitimate end for a moral compromise, the means to that effect may still be unjustifiable with respect to the parties' other views on justice.110 Thus, for instance, pro-life advocates might be willing to accept that pro-choice advocates will not give up legalization of abortion, but insist that they give up policies that would increase the number of abortions, such as policies of sub- sidized abortion. Pro-life advocates might agree on such a compromise to save some lives, while pro-choice advocates might agree on such a compromise to save pregnant women's autonomy of choice. However, the refusal to fund abortion, when childbirth is funded, creates an almost irresistible pressure on indigent women to carry a child to term; in this sense, such a compromise might be said to violate the basic rights of poor women to choose between giving birth and having an abortion. Therefore, although it is possible to think of compromises which would reduce the number of abortions while respecting women's autonomy, this second limitation to the argument makes the moral desirability of internal compromises appear even more limited. Let us go further and imagine that advocates of affirmative action measures accept as a compromise that list-quotas of women in political elections be set at 25% rather than 50% of the candidates. The aim of this compromise is prima facie justifiable in the sense that more women might become eligible than without any quotas at all, while reducing the restrictions of the electoral freedom implied by quotas. One may wonder, however, whether there is not more injustice in potentially limiting the eligibility of men and women by half in a way that is not representative at all of their proportion in the population, than in leaving it to the political process to decide. Such artificial guidelines might in fact have more pernicious consequences for material equality between men and women than it seems at first sight; equality is equality after all and there might be no way to compromise it in one instance without jeopardizing the entire gender balance in society. Finally, let us suppose that some people who believe very strongly that abortion is murder accept a compromised abortion statute, stating that abortion is allowed on Fridays only, on the basis that it allows for fewer murders than a fully permissive statute. It remains the case, however, that they will rank internal 110 See Gutmann and Thompson, above n 7 at 88 ff. See also D. ReÂaume `Is Integrity a Virtue? Dworkin's Theory of Legal Obligation', 39 University of Toronto Law Journal 380 at 397 (1989). 230 Oxford Journal of Legal Studies VOL. 23 compromises last in other circumstances where the substantive issue is less grave. Imagine, for instance, the case in which it is smoking marijuana that is allowed on Fridays only; conceding to this on Fridays clearly does not have the same weight and moral appeal for those who want to ban all drugs as the equivalent in the abortion case.111 This suggests that people still share an intuition against internal compromise.112 A second counter-argument against the conscience-based argument defended here has been elaborated by Dworkin himself. He objects that the argument that no individual should vote or take a decision against her conscience does not hold and even begs the question.113 He does acknowledge that a legislator who votes against her own conviction behaves irresponsibly according to her own standards, but thinks that the argument does not explain why we should reject internal compromise as a general outcome. He imagines a mechanical legislative structure which would produce compromised statutes without asking any member of the legislature to vote for them as such, for it would result in proportioning the content of any decision according to the number of votes. As a reply, however, one could contend that by consciously participating in such a mechanical exercise and thus by agreeing to it, members of the legislature are already acting against their conscience. C. Concept Attribution Whereas the second argument was based on the parties' point of view, there is a third argument to be made against internal compromise from a more abstract point of view. This argument is intrinsically related to the question of concept attribution, to borrow Nicos Stavropoulos' term.114 Concept attribution is short- hand for the determination of the concept of which people hold conceptions. When internal compromises try to reconcile true and false conceptions of the same concept,115 conceptions which are equally eligible, but inconsistent, or non- independent or inconsistent concepts with independent or consistent ones, they produce so-called `gerrymandered'116 concepts.117 Such concepts are not intel- ligible per se and do not stand on their own. Internal qualifications of the same 111 I thank Thomas Pogge for this example and a useful discussion on checkerboard statutes. 112 Maybe what this suggests is that when grave matters of life and death are at stake, people tend to decide independently of their other moral principles and especially their ethical intuitions against internal compromise and the injustice it entails. 113 Dworkin, above n 1 at 182. 114 See N. Stavropoulos, Objectivity in Law (1996) at 186 ff. who seems, however, to restrict the issue to concept attribution in adjudication. I think that it follows from his reasoning about which concepts can be attributed in adjudication that not all concepts can be compromised in a non-principled way in the legislative process in the first place; if the contrary were true, this would make adjudication an even more difficult exercise. 115 See, for instance, Kuflik, above n 11 at 51 for an argument in favour of a morally acceptable compromise between `claims based on moral convictions that one can now perceive to have been mistaken'. 116 The term `gerrymandering' refers, in politics, to the rearrangement of voting districts so as to favour the party in power. The origin of the term was in such an arrangement made by the Massachusetts Jeffersonians when Elbridge Gerry was governor. 117 See Stavropoulos, above n 114 at 190. SUMMER 2003 Against Compromising Justice Internally 231 concept or principle can even amount in some cases to contradicting the original principle itself.118 There are different reasons why concept-gerrymandering should be avoided. First, concepts cannot be created ad hoc depending on the needs of interpreta- tion. A definite number of concepts are at our disposal and what varies are the conceptions and applications of these concepts. The contrary would indeed seem absurd to each of us given that meaning has logical priority over compromising. Second, concepts relate to each other in a complex way; this imposes a require- ment that any conception of a concept must fit uses of that concept that are related to other concepts and their respective conceptions.119 This is precisely something an internally compromised concept could no longer do. Finally, we can make a virtue of this necessity: a logical consequence of the fact that our concepts are already given does indeed correspond to the need for some minimal level of determinacy and predictability in the law. Of course, one may object that there are more complicated concepts that we could name conciliatory or umbrella concepts, under which conflicting but com- mensurable conceptions can co-exist when cases of single-principle disagreement have metaphysical causes.120 One could consider the concept of equality as an example of a concept of which both equality of resources and equality of welfare could be equally eligible conceptions and look reasonable to both parties. If the existence of such genuinely complex concepts could be established, there would be no a priori reason for favouring the epistemic interpretation of single-principle disagreement over the metaphysical one, as we saw in the previous section, and, in fact, all conflicting conceptions could be retained. Such conceptions could therefore also be the object of an external and principled compromise within the same idea, where both parties accept them as reasonable and commensurable conceptions, without incurring a contradiction of the original principle.121 For example, the parties could accept a compromise within the principle of equality between the two conceptions of equality of welfare and equality of resources on the following terms: `To each according to her work, unless the extent of her needs falls below a certain threshold'. Such concepts exist, at least on the face of the evidence we have. However, to establish their existence requires a substantive argument. Now it is true that both parties may be wrong and that it just so happens that a prima facie internally compromised view has not yet been defended as a coherent conception of the concept of justice, but could well be reasonably held in the future as an eligible conception of a complex concept of justice. This is a contingent matter, however. There are some good reasons, on the one hand, why we should not make one particular view, which is not yet reasonably defended and intelligible as 118 See R. Dworkin, Sovereign Virtue, The Theory and Practice of Equality (2000) at 49 ff. 119 See Stavropoulos, above n 114 at 197. 120 Ibid at 195 ff. 121 Contra Dworkin, above n 118 at 49 ff. 232 Oxford Journal of Legal Studies VOL. 23 such in the community, the community's view and, on the other, why we should not compromise two conceptions one of which may be right and the other wrong. The reverse may also be true. A gerrymandered concept may mistakenly appear intelligible and coherent to reasonable people.122 In cases of epistemic indeter- minacy, however, people have no other solution but to trust their conceptions of a normative concept and disagree about it or even converge on an internally compromised conception of it as long as they regard it as principled and provided the conditions for further deliberation and progress on the matter are guaranteed. An objection that is frequently raised against this external and abstract view of concept attribution is that, by condemning internal compromise, it constrains legislative authority and its autonomy to draft bad or gerrymandered laws if it so wishes. This objection is misconceived. First, given our awareness of our fallibility and our difficulty in reaching reasonable agreement on matters of justice, the response we should give to disagreement ought to reflect cautiousness despite autonomy. We should not act so as to prevent a better answer coming out later in the debate. It follows that we should not prefer pushing forward our views of justice, for instance through internal compromises, to reaching other settlements that correspond better to the community's view as a whole;123 the community's view can never be equated with a compromised view nobody could defend as such in the community or that would amount to a partitioning of justice.124 Second, the objection's fear of a complete identification of law with ethically correct views is misplaced: the content of the law is constrained by past concep- tions of its concepts in ways that our ethical views are not.125 This is one of the reasons why external compromises are so frequent in politics; they provide the means to reconcile past decisions with new and more appropriate ones and hence to ensure continuity in change in the political community. This is not, however, a reason to accept internal compromises, as they would jeopardize continuity and coherence not only within each law or decision, but within the law as a whole. D. Political Integrity One last argument against internal compromise is based on the violation of one of the political ideals the state ought to respect when enacting laws. According to this argument, internal compromise fails to capture the core of our sense of the political virtue of consistency in principle, that is also referred to as coherence or integrity. This argument of public morality should be read in contrast to some of the prior arguments that were based merely on officials' individual perspectives of justice. 122 I thank Leslie Green for this suggestion. 123 See Dworkin, above n 1 at 211 and 213. 124 See Snyder's response to Coons, above n 5 at 804. 125 See Stavropoulos, above n 114 at 187±8. SUMMER 2003 Against Compromising Justice Internally 233 The argument of political integrity refers to the duty for the state to act as consistently as we would in our own individual actions.126 Even when legislation is the product of a compromise, it should express a coherent conception of justice; a person regards a law as coherent, even though she may disagree with it, only if she can plausibly imagine the view it expresses as being held by herself. If a middle-ground view between either two incompatible conceptions of the same principle or two incompatible principles is not something we would act on individually, then it cannot be a desirable way for the political community to act as a whole and hence for public officials to decide. The principle of integrity has been developed most famously by Dworkin. According to him, integrity calls for as much coherence as possible in the law- making process, on the one hand, within the law as it stands and, on the other, between past and new law. We need not, however, accept Dworkin's conception of moral and legal coherence in the law as a whole to be sensitive to his argument about coherence in the law-making process.127 First of all, the conception of integrity used here is limited to local and synchronic coherence as opposed to general and diachronic coherence. As such it only encompasses consistency in principle within a single law or decision rather than general coherence across the law as a whole.128 Second, Dworkin postulates, rather than argues for integrity; he uses our intuition against internal compromise to justify the need to postulate the principle of integrity.129 Here, by contrast, I am using a justified principle of integrity to argue against internal compromise. This explains how it is possible to use some of Dworkin's intuitions about integrity without having to accept the rest of his argument on associative obligations and loyalty to the community. But it also clarifies why it is necessary to provide a brief sketch of an independent justification of the principle of integrity before it can be used to argue against internal compromise. This justification does not aim at being complete and only supports local and synchronic coherence, as it is the minimal form of coherence needed to show that internal compromise is morally undesirable in politics and in the law-making process. Political integrity may be justified in its local and synchronic application to the law, because we see ourselves as the authors of the political decisions made by our governments; for that purpose, we require the state to respect integrity because a citizen cannot consider herself as the author of rules that are inconsistent in 126 Dworkin, above n 1 at 183±4. 127 Dworkin, above n 1 at 188±9 himself contends that his argument is not the only one for integrity. See also Waldron, above n 71 at 191. 128 Of course, the distinction is not always that clear in practice: diachronic coherence has to be ensured synchronically too and synchronic coherence often reconciles diachronic elements. 129 On Dworkin's postulates, see Dworkin, above n 1 at 183 and G. Rey, `A priori conceptions' in S. Villanueva (ed.), Concepts, Philosophical Issues 98 at 101±2 (1998). Note that the hypothetical nature of Dworkin's conception of integrity explains the apparent circularity there is in his account between justifying integrity in terms of political obligation, on the one hand, and justifying political obligation in terms of integrity, on the other. Once the justificatory nature of Dworkin's conception of law is made apparent, however, it is clear that integrity need not be justified, but only postulated for Dworkin's purposes. 234 Oxford Journal of Legal Studies VOL. 23 principle.130 Moreover, such rules cannot match pre-existing individual reasons, that tend to be coherent overall, and cannot therefore enable us to abide by those reasons better than on our own.131 Then they cannot claim authority along the lines of Raz's widely accepted account of legal authority. In his account, the law must be capable of claiming authority. As such, it must be able to claim that, at least in some cases, the alleged subject is likely to comply with reasons which apply to her better if she accepts the directives of the alleged authority as authoritatively binding and tries to follow them, than if she tries to follow the reasons which apply to her directly.132 Finally, synchronic coherence may also be justified on grounds of respect for others' reasonable, albeit diverging, concep- tions of what the particular law should be in our community.133 Of course, one may argue that in some exceptional cases internal compromises of principle might have to be struck within the same legal principle, and that, in these cases, integrity or any other ideal invoked against them may have to be sacrificed to concerns of justice or fairness. Dworkin himself refers to the excep- tional possibility of sacrificing integrity, both within each law and within the law as a whole, to justice or fairness generally.134 Dworkin adds, however, that `checkerboard statutes are a f lagrant and easily avoidable violation of integrity'. This indicates that he does not see internal compromises within each law as a desirable sacrifice of integrity to justice or fairness in contrast with some forms of diachronic incoherence. Besides, integrity is a principle that only applies in circumstances of reasonable disagreement over justice (so-called `circumstances of integrity'135); it is therefore both independent and relative to the principle of justice, as it is meant to guide political decisions about justice when the latter is contested and cannot guide them itself. As such, it is difficult to see how integrity could be sacrificed to justice, when the different conceptions of the latter, that are at stake before the compromise, are themselves 130 For a mention of this argument, see Dworkin, above n 1 at 189. As to the question of why there is a natural individual tendency to consistency in principle, I simply refer the reader to the following logical proof: 1) p or not-p, 2) p, 3) p or q, 4) not p, 5) q. Note that I am not arguing that individuals do not believe in conflicting principles nor that they do not compromise such independent principles in practice, but only that most of them intuitively reject internal compromises. On the origins of the axiom of contradiction in Occidental ethics, see Plato, Gorgias (1990) at 482: `Since I am one, it is better for me to disagree with the whole world than to be in disagreement with myself'. 131 Note that I take values and reasons to be intrinsically related here; with the exception of rare hypotheses, in which it is a person's personality or her ambitions that dictate her moral behaviour, her reasons for acting in a way and not the other are usually related to the value of this action. See J. Raz, `Mixing Values' in Engaging Reason, On the Theory of Value and Action (2001) at 182±3 n 3 and at 196. In this context, therefore, if the values of an action and the principles they support are gerrymandered at law, then the legal reasons for that action will be too, thus jeopardizing two of the conditions of the Razian conception of authority: the relation of dependence between legal reasons and personal reasons, on the one hand, and the normal justification thesis, on the other. 132 Raz, above n 82 at 198; Raz, above n 89 at 53. Note that Raz, above n 82 at 298±301 argues that his conception of authority defeats the argument of general coherence in the law; the point here, however, is a point about what Raz calls local coherence rather than general coherence and he admits at 314±19 that local coherence matters in some cases and that, in these cases, internal compromises cannot be regarded as desirable. 133 See in particular Waldron, above n 71 at 202. As we saw before, both coherence and respect may or may not justify striking external compromises depending on the circumstances. However, they may justify a contrario refusing to strike internal compromises with unreasonable conceptions of justice. 134 See Dworkin, above n 1 at 217. 135 See Waldron, above n 71 at 189 ff. SUMMER 2003 Against Compromising Justice Internally 235 contested. Finally, even if this was granted, it is difficult to see how justice could call for an internal compromise of its own principles and thus constrain the application of the principle of political integrity within the same law, since integrity is precisely meant to avoid such contradictions within the concept of justice itself. It seems therefore that, within the same law, the principles of justice and integrity can only very rarely pull in different directions.136 Dworkin's other contentions about the balance that ought to be struck and the compromises that ought to be made between the demands of justice and fair- ness,137 or of justice and integrity, can easily be reconciled with his rejection of internal compromises. The compromises he has in mind there are external compromises between either independent principles or a judge's second-order beliefs about which principles of justice or integrity to follow, rather than com- promises on the content of the first-order principles over which she has to take a decision. It could mean that either justice or integrity is to prevail, or that a bit of both should, depending on the circumstances. It does not, however, necessarily mean that the outcome of this first-order compromise, if there is one, will be an internally compromised one where a new conception of justice is compromised with wrong or inconsistent conceptions expressed in deliberations or encom- passed in precedents. There are smoother ways to ensure a transition when a position has won a sufficient majority than compromising principles internally; one may think of an external compromise where a new government combines creating new laws it sees as being more just with retaining some of the past government's laws for a while.138 As Dworkin argues, politics is a theatre of debate about which principles the community should adopt as a system, which view it should take of justice, fairness and due process, not the different story [. . .] in which each person tries to plant the flag of his convictions over as large a domain of power or rules as possible.139 This is also what Raz means when he discusses the `partial reform dilemma'; this dilemma is set between, on the one hand, the coherence of purpose of the law as a whole and, on the other, the pursuit of the morally correct line. It results from the impossibility for judges and sometimes for legislators to entirely reform past 136 This does not mean, however, that the principle of integrity is dependent on the principle of justice, contrary to what ReÂaume, above n 110 at 392 ff claims. The critique might hold with respect to Dworkin's negative postulation of integrity, but not to the argument made in this paper. To be independent of justice, integrity need not be conflicting with it. To take an example, it is not because justice and fairness condemn plural voting that fairness is not an independent principle and cannot provide an independent justification against plural voting. Moreover, there can be instances in which coherence may require something our conceptions of justice would have us reject; this is the case with diachronic coherence, for instance, as consistency with the conceptions of justice entrenched in past laws may contradict our current conceptions. 137 See Dworkin, above n 1 at 249±50, 256, 340. 138 See J. Waldron ` ``Transcendental Nonsense'' and System in the Law', 100 Columbia Law Review 16 at 42 (2000). See also Dworkin, above n 1 at 218. 139 Dworkin, above n 1 at 211 (emphasis added). 236 Oxford Journal of Legal Studies VOL. 23 law in order to produce the new scheme that they would like to enact. In such a case, officials have to decide whether compromising and choosing the morally second-best rule which has better consequences is best in the circumstances, or whether it is more important to let the law speak clearly and soundly on a moral issue, and hope that an occasion to extend the correct ruling to other cases will arise and be followed before long.140 Raz then seems to be saying that the second horn in this dilemma should be chosen, thus undermining the legitimacy of internal compromise.141 For many people, as it transpires from this example, the response to reasonable disagreement and the solution to the occasional need to converge peacefully lies in a commitment to democracy as a procedural means for resolving conflicts within a given community. This is particularly the case when deliberation and mutual accommodation have proved unsuccessful and when compromises on the outcome have not been reached informally142 or are not desirable. Interestingly enough, discussions about compromise of principle very often regard democracy as the paradigm of political compromise and it is to this question that I will turn now. 5. Democracy as a Fair Compromise In his General Theory of Law and State, Hans Kelsen contends that `compromise is part of democracy's very nature'.143 It seems therefore that commitment to democracy itself can be understood as a compromise, rather than as a mere `compromise technique' in the cases where it achieves compromises qua out- come. In this sense, democracy may be said to amount to a compromise qua process. As we saw in the first section, a compromise qua process is a certain way of achieving conflict resolution by a procedure of `give and take', whatever the actual terms of the final settlement might be. This form of compromise is instantiated by the case where the parties submit their dispute to the determination of a certain decision-making procedure. Compromises qua process can take the form of democratic deliberation in which each point of view must be given a voice in the process of deliberation and each participant given equal voting rights, but where the parties accept that the final collective decision will be the majority's, except in special cases where unanimity is required. This procedure amounts to a 140 Raz, above n 82 at 316±17. 141 Raz, above n 82 at 317. 142 In fact, even when external compromises are reached informally on matters of principle, for instance by trading support for some principle in exchange of future support for another one, they take place in an official arena, be it the legislature or the judiciary, where settlement procedures are omnipresent, and they are therefore oriented towards a vote; for instance, what is usually traded are votes and even when people have reached the perfect compromise where they have gained sufficient majority or even unanimity on each project respectively, procedure will often end by taking a vote. 143 H. Kelsen, General Theory of Law and State (1961) at 288. SUMMER 2003 Against Compromising Justice Internally 237 compromise even if all agree to it, for each individual can presumably expect to be outvoted some of the time and thus to see a different view of justice from hers adopted. In effect, the procedure is one of compromise by succession: individuals take turns in getting their own way on issues instead of compromising on each particular one.144 It assumes, however, that there will be no permanent minority whose views are consistently overridden by the majority and that basic minority and democratic participation rights are respected. Even when majority decision is understood as a compromise, it does not necessarily require or lead to further compromises qua outcome on the particular issues at stake. It is important to keep this distinction in mind as it helps to see why democracy should not be regarded as the necessary paradigm of all compro- mises and in particular of compromises qua outcome. Of course, the mere fact that a democratic decision-making procedure may produce decisions that one of the parties would oppose, coupled with the possi- bility of getting her views through on another occasion thanks to vote trading, will often suffice to allow us to understand such decisions as external distributive compromises about justice. In fact, Dworkin's contentions about external com- promise qua outcome emphasize its relationship with democratic procedures; in such procedures, he says, `each point of view must be allowed a voice in the process of deliberation but the collective decision must nevertheless aim to settle on some coherent principle whose influence then extends to the natural limits of its authority'.145 Moreover, the process of constitution of a majority on some issue, which will enact its own view of justice, is often subject itself to the need to make integrative compromises; in most cases, there is a broad range of opinions on moral issues and it is rare that any single opinion will command a majority from the start. Instead majorities are very often coalitions of people with different and sometimes conflicting views, who have all made concessions to be in the majority. However, this simple fact is not conclusive. First, the fact that logrolling is a current practice does not lead to the conclusion that a compromise qua outcome is morally desirable. It might be regarded as morally worse that people join a majority by consenting to compromises qua outcome rather than by being persuaded to endorse the quasi-majority's view of justice. Second, people may indeed trade votes and make different concessions, but these do not necessarily have to be related to the actual content of the final, single view of the majority. Votes for a specific law could be traded against other advantages or future votes rather than for concessions in the particular content of the voted law. Imagine, for instance, that someone in the minority on a taxation issue trades her votes on a social benefits question and thus sacrifices her opinion on a less important issue for support over a more crucial one. 144 Carens, above n 10 at 134. 145 Dworkin, above n 1 at 179. 238 Oxford Journal of Legal Studies VOL. 23 Finally, the contention that in a democracy people should make concessions to their opponents, even when the concessions are not needed to create a major- ity,146 is misleading. True, there is an increasing need nowadays for more inclu- sive politics based on mutual acceptance and respect in the face of the reasonable nature of disagreement and our mutual fallibility.147 There is a difference, how- ever, between, on the one hand, the guarantee of respect and equal chances in deliberation or the willingness to listen and maybe to be persuaded and, on the other, the actual constitution of the chosen scheme of justice that risks losing its true nature if it is internally compromised. The acceptance of the majority rule, i.e. the conclusion of a compromise qua process, shows sufficient respect for the reasonableness of the positions at stake, including the minority's stance when its turn comes.148 Besides, such a conception would replace majority rule with artificial convergence, thus simultaneously undermining political equality that is part of the basic justification for democratic resolutions of disagreements. A problem for any argument in favour of compromise qua process is that reasonable disagreement over the legitimacy, justice and fairness of a substantive issue also applies to the dispute-settlement procedure. A solid argument for the majority rule, be it in terms of compromise or not, needs therefore to be founded on something other than its justice or fairness, since it is precisely because of disagreement about justice and fairness that people will choose the majority rule as a way to reach a settlement and converge on a single line of action.149 Such a higher-order principle of justification may be founded on the need to solve co-ordination problems and to converge on a single political rule of action, for instance; the fairest way of doing so could in particular be the majority-rule as it gives maximal decisiveness to all citizens, its fairness being based on an impover- ished sense of the principle of political equality. More historical and pragmatic explanations may also be used to avoid an escalation of reasonable moral disagreement from substance to procedure.150 There is therefore some perceptiveness in Singer's contention that democracy and the majority rule are `paradigms of a fair compromise'.151 By this, Singer means that, in circumstances of reasonable disagreement, the equal division of power and the use of the majority rule to reach a decision among equal votes could be seen as the paradigm of a fair compromise. Fairness is understood here in terms of compromise rather than in absolute terms that would imply full objective knowledge of what is just and fair on the part of both parties,152 or at 146 See Cohen, above n 12 at 47; Carens, above n 10 at 135. 147 See W. Galston `Democracy and value pluralism' (2000) Social Philosophy and Policy 255 at 267±8. 148 See Waldron, above n 71 at 165 on the majority rule as a respectful procedure. On this point, see also Singer, above n 10 at 32 ff. 149 See for a similar argument, Dworkin, above n 1 at 180. 150 See also R. Nozick, Anarchy, State and Utopia (1974) at 98 on the pervasiveness of disagreement: `When sincere and good persons differ, we are prone to think they must accept some procedure to decide their differences, some procedure they both agree to be reliable or fair. [But] . . . this disagreement may extend all the way up the ladder of procedures'. 151 Singer, above n 10 at 32. See also Carens, above n 10 at 134. 152 Singer, above n 10 at 33±4. SUMMER 2003 Against Compromising Justice Internally 239 least a rationally demonstrable proof of what is just and fair. In these circum- stances, `fairness as a compromise is all that can be expected because, as we have seen, it is extraordinarily difficult to decideÐlet alone reach agreement onÐwhat is a sufficient reason for an unequal distribution of power'.153 According to Singer, furthermore, what makes majority rule fairer `as a compromise' and provides a stronger reason to respect it is that what is asked in return for the acceptance of the compromise qua procedure is a minimal sacrifice on the part of each party who is given equal weight in the procedure.154 This very idea of minimal sacrifice and maximal decisiveness155 in democratic procedures is what leads Kelsen to contend that `it is precisely because of this tendency towards compromise that democracy is an approximation to the ideal of complete self-determination'.156 6. Conclusion We should now be able to propose an answer to the puzzle we started with: in circumstances of persistent reasonable disagreement about justice, may we com- promise about justice in the law? The response is as ambiguous as the concept of compromise itself: yes, we may in most cases, although compromising is only one of the many ways in which we can accommodate our mutual differences and settle our reasonable disagree- ments. In some cases, moreover, it is clearly not desirable at all. Following our initial intuition, we can see that internal compromise in case of disagreement over principles of justice constitutes, at the most, a second best alternative. Although it is better than no convergence at all, it fails to capture, among other things, the core of our sense of law's intelligibility and workability, of justice, of correct concept attribution and, finally, of political consistency. This conclusion does not, however, hold for all political compromises in case of conflicts of principles. It does not apply, for instance, to the conflicts which oppose two or more independent moral principles provided their conceptions are reasonable, independent and consistent. The same is true of conflicts which oppose two conceptions of the same principle if, by the end of a substantive argument, both parties hold that the two conceptions reflect two conflicting but commensurable values that are equally constitutive of the same concept. All these compromises of principles are external ones; they are merely compromises about which scheme of justice we should adopt, whether they are distributive or integrative. 153 Ibid at 35±6. 154 Ibid at 32, 36. See also Kuflik, above n 11 at 299. 155 See on this minimally controversial defence of the principle of majority rule, Waldron, above n 71 at 114; B. Ackerman, Social Justice in the Liberal State (1980) at 283. 156 Kelsen, above n 143 at 288. 240 Oxford Journal of Legal Studies VOL. 23 As an alternative to external compromise qua outcome in settling political disagreements, I suggested compromise qua process, as exemplified by demo- cratic procedures and the majority rule. Such compromises select one of the views reasonably held during deliberation where all views have had the chance to be represented and discussed. Accepting the majority rule qua compromise does not necessarily imply striking further external or internal compromises qua outcome within the majority's decision; such concessions may be made in the course of the democratic process, but they are not a pre-requisite nor a necessary consequence. The contrary would transform majority rule into artificial convergence, thus undermining at the same time the political equality that is part of the basic justification for the democratic resolution of disagreements. Majority rule can indeed be regarded as a fair settlement procedure, its fairness being understood in the loose and least controversial sense of the most minimal sacrifice or compro- mise to be made to reach convergence or, in other words, in the sense of the maximal decisiveness compatible with the equality of others. SUMMER 2003 Against Compromising Justice Internally 241 
work_xmyvp76kzvduhh7qt5uejl4t74	----	Alabama Law Review Search UA.edu Go Search law.ua.edu Go The University of Alabama Apply Giving Faculty Library Contact Search The University of Alabama School of Law Main Menu Mobile Menu Search law.ua.edu Students Apply Library Faculty Contact Admissions Academics Students Alumni Career Services LLM & JSD Programs Alabama Law Review Home About Us Submissions Current Volume Masthead Alabama Amicus Symposium Subscriptions Membership Reprint Permission Contact Us Archives Home As the flagship legal journal in the state of Alabama, the Alabama Law Review is a nationally recognized journal. Each year, the Alabama Law Review publishes contributions from leading scholars as well as selected works from its own members. The editors are tasked with carefully analyzing these articles and preparing them for publication in each of the four issues the journal publishes each year. As a light-edit journal, the Alabama Law Review seeks to preserve the integrity of author contributions while also guaranteeing accurate and useful citations that can provide helpful commentary and guidance to academics, the state bar, and the broader intellectual community. Now in its seventy-second volume, the Alabama Law Review is building on a rich tradition of scholarship aimed at exploring issues of national as well as local significance to scholars, legislators, jurists, and practitioners. ABA Required Disclosures Nondiscrimination Notice Current Students MyBama Assignments Prospective Students Quick Facts Tuition, Scholarships, & Financial Aid Application Alumni Join the Alabama Law Alumni Society Alumni News Career Services Students Employers Symplicity Login Law School Calendar Law School News Programs Faculty & Staff Directory Clinical Program CLE Alabama The University of Alabama The University of Alabama School of Law Box 870382 101 Paul W. Bryant Drive, East Tuscaloosa, AL 35487 Copyright © 2021 The University of Alabama | Disclaimer | Accessibility | Privacy | Notice on Revised or Conflicting Rules 
work_xng7ewvbnfajbiakmqsouwqbpa	----	untitled EDITORIAL Disability and justice This special issue of the Scandinavian Journal of Disability Research addresses justice and the rule of law with regard to the situation for persons with disabilities. The inter- section between these two thematic fields has been made topical in the Nordic countries in the implementation process for the UN Convention on the Rights of Persons with Disabilities, as well as the aftermath of two well-documented examples of serious miscarriages of justice in criminal cases where people with disabilities were falsely convicted. The five articles in this volume discuss different aspects of how the criminal justice system is applied in cases involving persons with disabilities. One of the articles outlines a theoretical background and provides an overview of rel- evant research, and four articles discuss findings from recent empirical studies of cases where pivotal safeguarding principles are at stake. The articles have been produced with grants from the Fritz Moen Research Fund. The concept of criminal justice relates to the question of how the rule of law is applied in the functioning and practices of the criminal justice system, in both formal and informal practices. The concept of criminal justice also addresses different aspects of security and reassurance for victims and witnesses, as well as for defendants and those convicted. It also includes a series of basic principles, practices and insti- tutions used by governments with the aim of maintaining social control, reducing crime or sanctioning persons who break the law with criminal penalties and rehabili- tation. Persons accused of crimes have legal protection against abuses of investigatory and prosecutorial powers.1 The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), adopted in (2006), contains several articles that specifically address the judicial systems in the States Parties. The articles make specific demands on the states that ratify the Convention. States Parties are requested to take legislative, administrative and judicial measures to ensure that persons with disabilities are met and treated on an equal footing with other citizens. In particular, this applies to Article 12 (equal recognition before the law), Article 13 (access to justice), Article 14 (liberty and security of the person) and Article 15 (freedom from torture or cruel, inhuman or degrading treatment or punishment). These articles interfere both directly and indirectly with the practical functioning and application of the criminal justice system in the Nordic countries. The judicial situation for persons with disabilities is of special interest in the Nordic countries at the present time, as the process of ratification and implementation of the UNCRPD is still ongoing in the Nordic countries. At the time of writing, the three Scandinavian countries (Denmark, Sweden and Norway) have all ratified the Conven- tion, while Iceland and Finland have signed the Convention and are still in the process of ratifying it.2 The implementation processes for the UNCRPD have undoubtedly © 2015 Taylor & Francis Scandinavian Journal of Disability Research, 2015 Vol. 17, No. S1, 1–6, http://dx.doi.org/10.1080/15017419.2015.1064029 caused a certain interest in, and focus on, questions regarding the functioning of the criminal justice system in the three countries that have signed. Rule of law is basically a principle which expresses the individual’s possibility to estimate her/his legal status. This principle is a central feature of Western democracies and regulates the relation between the state and citizens in several areas of life, such as schooling, health services, care, employment and housing – just to mention a few. When we concentrate on the situation in the criminal justice system in this special issue, this is however just one of several areas where predictability and access to justice is of fundamental importance. Our hope is that this issue may contribute to broaden the research perspective on disability and different aspects of rights and justice matters, and that it may encourage further research into this field. The case of Fritz Moen, Norway3 The situation in the Nordic countries with regard to disability and justice is also some- what paradoxical. On the one hand, the Nordic countries are usually among the top 10 countries in international rankings of legal standards, such as the World Justice Project4 (Agrast, Botero and Ponce 2014). On the other hand, Norway and Sweden are responsible for the two best-known and serious miscarriages of justice in modern European judicial history. In both these cases disabled people were victimized. This situation provides the sad context for this issue. We will briefly outline the rather complex developments in these two cases. It is now 35 years since Fritz Moen (1941–2005), a deaf Norwegian citizen, was convicted of the second of two murders that it was later proved he could not have comitted. Moen was born during World War II as the illegitimate child of a Norwe- gian mother and a soldier from the German Wehrmacht. His identity as a ‘German brat’ in the public view put him in a highly stigmatized category, implying biological, moral and intellectual deficiency (Ericsson and Simonsen 2005a, 2005b). As a ‘German brat’, he was abandoned by his family and relatives and raised in orphanages and boarding schools for the deaf, never experiencing ordinary family life. His deaf- ness was not detected until the age of 7–8. In his early years, generally regarded signifi- cant years for a child’s language acquisition, Moen apparently lived with restricted communicative opportunities. Poverty is also an identity that applies to his case. The implications of these factors or multiple identities clearly made shifting impacts along his life trajectory within the changing societal contexts of his lifespan, leading up to his being convicted of two murders. In 1978, Fritz Moen was convicted of killing a young woman in Trondheim, Norway. In 1981, he was convicted again for the killing of another young girl in the same town. Both killings bore the character of sexual murders. When Moen confessed to the killings to police, there was no sign language interpreter present. The inquiries were completed under severe pressure from the police. Viewed in retrospect, there were several serious problems with communication between Moen and the police investi- gators. These problems also apply to the court case (NOU 2007:7). Moen was sen- tenced to a total of 21 years in prison and served a total of 18 years under very severe conditions. As a result of outside pressure, from the Norwegian journalist Tore Sandberg in particular, the two murder cases were reopened in 2001 (Sandberg 2007). In 2005 and 2007, Fritz Moen was acquitted of the two crimes. Unfortunately, and very sadly, Moen died in December 2005 and never got to experience the final acquittal. 2 Editorial After the final acquittal, the Norwegian Minister of Justice issued an official apology on behalf of the Norwegian State in memory of Fritz Moen for his wrongful conviction and for his sufferings. Compensation from the Norwegian government was paid to Moen’s estate. A national committee was appointed by the Norwegian Min- istry of Justice to examine the details of the two cases with a view to establishing what went wrong. The committee submitted its report to the Norwegian Ministry of Justice in 2007 (NOU 2007:7). It should also be noted that, seven years after this report, it has still not been followed up by a White Paper from the government to the Norwegian parliament, which is the usual procedure in similar cases. The case of Sture Bergwall, Sweden Up until 2012, Fritz Moen’s case was the only know case of a double miscarriage of justice per se, not just for people with disabilities, and not just in Norway or the Nordic countries, but in the whole of European judicial history since World War II (Sandberg 2007). It might have been argued that the miscarriage of justice committed in the case of Fritz Moen could only happen in that particular historical situation, never to be repeated, but the case of Sture Bergwall in Sweden is a recent story that proves the opposite to be true. Sture Bergwall (b. 1950) grew up in a Swedish lower-working-class family. He had a troubled adolescence, with mental problems that also affected his adult life. As a 19-year-old, he was convicted of sexually assaulting four underage boys and sentenced to sheltered psychiatric treatment with a diagnosis of antisocial personality disorder.5 In the years that followed, Bergwall committed several serious crimes and went in and out of psychiatric treatment. This treatment also resulted in Bergwall becoming addicted to strong medicinal drugs. In 1991, Bergwall was sentenced to sheltered psy- chiatric treatment for aggravated robbery. In treatment at Säter hospital in 1994, now calling himself Thomas Quick, he began confessing to a series of murders that he claimed to have committed in Sweden, Denmark, Finland and Norway during the years 1964–1993. He confessed to more than 30 killings during police interrogations and psychiatric treatment. Between 1994 and 2001, Thomas Quick was convicted of a total of eight killings. All of them were unsolved murder cases that had attracted a lot of media publicity at the time. Quick confessed to the killings in treatment, with this being seen and treated as ‘repressed memories’ (Josefsson 2013). There was no physical evidence to link Quick to the killings. None of the court cases went before the appeal court. For the most part, the positions of prosecutor, interrogator and expert witness on repressed memories were held by the same key persons. Quick was sentenced to sheltered psy- chiatric treatment, still at Säter hospital. While the court cases were being held, critical voices were raised in public debate about the reliability of the court verdicts. In a TV documentary broadcast in Sweden in 2008, Sture Bergwall (having reverted to his birth name) withdrew his confessions. In the period 2009–2012, eight requests for retrial were submitted and decisions were taken to reopen the cases. Bergwall was acquitted of the last of the convictions in November 2013. While in psychiatric care, Bergwall became addicted to powerful drugs used in his treatment. In order to obtain these medicines, he seems to have learned to act in certain compliant ways. His behaviour matched well with the theories of suppressed memories that dominated treatment at the psychiatric institution where Bergwall served his Editorial 3 sentences.6 An official committee was set up by the Swedish Ministry of Justice in November 2013 to investigate this miscarriage of justice. The committee’s work, which will investigate both the psychiatric institutions and the criminal court verdicts, is expected to be published by 2015. During spring 2014, Bergwall was transferred to psychiatric care with lower security. The articles in this issue The two serious miscarriages of justice victimizing persons with disabilities outlined above provide the point of departure for this issue of the Scandinavian Journal of Disability Research. The two cases illustrate the serious mistakes that criminal justice systems are in danger of making when inadequate precautions are taken in cases involving people with disabilities. To a large extent such failures seem to be the result of ignorance and a lack of interest among professionals working within the criminal justice system. Several improvements have been made to these systems in Sweden and Norway since Moen and Bergwall were wrongly convicted (changes in forensic psychiatry, rou- tines for sign language translation, precautions in police interrogations, etc.). Never- theless, these cases should serve as a constant reminder that these failures may be repeated if the necessary precautions are not taken. In our opinion, implementing the UN Convention would be a major step in the right direction. The first article, ‘Disability in court: intersectionality and rule of law’ by Camilla S. Lundberg and Eva Simonsen, outlines the theoretical background in this field and provides an overview of recent Nordic and international research literature. The article shows how the term intersectionality can serve as a theoretical approach to studying these issues. This approach allows process-oriented, empirical studies of how phenom- ena such as power/powerlessness, marginalization and discrimination are produced and reproduced in various forms. The article shows how the concept facilitates analysis of how disability and legal protection relate empirically to other relevant social cat- egories, such as gender, language and forms of knowledge. The next article, ‘Sign language, translation and rule of law – deaf people’s experiences from encounters with the Norwegian criminal justice system’ by Terje Olsen and Patrick Kermit, dis- cusses the different experiences deaf people have of interacting with various represen- tatives of the criminal justice system. Examples include reporting a crime, giving evidence in police interrogations, testifying in court, and being prosecuted or convicted in a criminal case. The article shows how a number of uncertainties and errors occur in the interpretation processes in this respect – uncertainties that are only subjected to systematic consideration by the professional actors in the criminal justice system as an exception. The article ‘Being deaf in court’, by Ingrid Rindal Lundeberg and Jan-Kåre Breivik, discusses aspects of language and power as they unfold in the court- room. Using three specific cases involving deaf people, it studies how access to language – including spoken language, judicial language, body language and basic language comprehension – creates very specific conditions for interaction in court, conditions that usually remain tacit. The article also shows how access to courts and representation in court is unevenly distributed, and related to different forms of knowledge and resources. ‘Sentencing disabled offenders’, by Jane Dullum, is an article based upon a study of how Norwegian court sentencing unfolds in cases where people with disabilities have been convicted in criminal cases. The court takes into consideration a number of individual, social and contextual factors in 4 Editorial apportioning penalties. Disability is one of several factors, and the article analyses how the court balances its understandings of the defendant and the crime by showing the court’s reasoning in specific cases. The last article in this issue, ‘Punished and isolated: Disabled prisoners in Norway’ by Hilde Haualand, is a study of the situation for persons with sensory or physical disabilities serving sentences in Norwegian prisons. The article shows how a lack of awareness of these prisoners’ situations causes iso- lation and a decline in physical and mental health. The prison authorities’ failure to develop knowledge systematically with regard to how prison conditions might be improved is in conflict with international law. Although most of the cases presented in this issue are from the Norwegian criminal justice system, the questions and dilemmas they raise are of a far more general nature. Overall, this issue presents a picture of a criminal justice system with international obligations to strive for equal rights for all citizens, but with significant challenges to solve. Input from different fields, such as disability studies, law studies and crimi- nology, can make a fruitful contribution to such development. In this context, inter- sectionality constitutes a key theoretical contribution to empirical studies of these processes. In memoriam All the articles presented in this issue are the result of research grants from the Fritz Moen Research Fund. On behalf of all the contributors, we would like to dedicate this special issue of the Scandinavian Journal of Disability Research to the memory of Fritz Moen. The Guest Editors Terje Olsen Nordland Research Institute, PO Box 1490, Bodø Norway Patrick Kermit Department of Social Work and Health Science, NTNU, Trondheim, Norway and; NTNU Social Research, Trondheim, Norway Notes 1. Cf. http://criminologycareers.about.com/od/Criminology_Basics/a/What-is-criminal-justice. htm 2. http://www.un.org/disabilities/countries.asp?navid=12&pid=166 3. The presentation of the case of Fritz Moen was written by Camilla Lundberg and Eva Simonsen. See also their article in this issue. 4. http://worldjusticeproject.org/ 5. The description of this case is based on two monographs by Råstam (2012) and Josefsson (2013). 6. This explanation is based on Josefsson (2013) and statements by psychologist and specialist in forensic medicine Dåderman (2012). References Agrast, M. D., J. C. Botero, and A. Ponce. 2014. The WJP Rule of Law Index 2014. Washington, DC: The World Justice Project. Dåderman, A. 2012. Interview in Psykologtidningen [The Psychology Paper]. Stort focus på rättspsykiatrin [Big focus on forensic psychiatry]. 7: 4–10. Editorial 5 http://criminologycareers.about.com/od/Criminology_Basics/a/What-is-criminal-justice.htm http://criminologycareers.about.com/od/Criminology_Basics/a/What-is-criminal-justice.htm http://www.un.org/disabilities/countries.asp?navid=12&amp;pid=166 http://worldjusticeproject.org/ Ericsson, K., and E. Simonsen, eds. 2005a. Children of World War II. The Hidden Enemy Legacy. Oxford: Berg. Ericsson, K. and E. Simonsen. 2005b. “Introduction” In: K. Ericsson and E. Simonsen. (eds.) Children of World War II. The Hidden Enemy Legacy. 1–12. Oxford: Berg. Josefsson, D. 2013. Mannen Som Slutade Ljuga [The man who stopped lying.]. Stockholm: Lind & Co. NOU. 2007:7. Fritz Moen og norsk strafferettspleie. [Fritz Moen and Norwegian criminal justice. Report by a government-appointed commission.] Oslo: Departementenes servicescenter. Råstam, H. 2012. Fallet Thomas Quick. Att skapa en seriemördare [The Thomas Quick case. Creating a serial killer.]. Stockholm: Ordfront Förlag. Sandberg, T. 2007. Overgrepet. Justismordene på Fritz Moen. [Violation. The miscarriage of justice in the Fritz Moen case.]. Oslo: Damm. United Nations. 2006. Convention on the Rights of Persons with Disabilities. Adopted on 13 December 2006. New York: United Nations. 6 Editorial The case of Fritz Moen, Norway3 The case of Sture Bergwall, Sweden The articles in this issue In memoriam Notes References << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles false /AutoRotatePages /PageByPage /Binding /Left /CalGrayProfile () /CalRGBProfile (Adobe RGB \0501998\051) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.1000 /ColorConversionStrategy /sRGB /DoThumbnails true /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 524288 /LockDistillerParams true /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments false /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo false /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings false /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Remove /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 150 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages false /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.90 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /ColorImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 15 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 15 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 150 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages false /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.90 /HSamples [2 1 1 2] /VSamples [2 1 1 2] >> /GrayImageDict << /QFactor 0.40 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 15 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 15 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 1200 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Average /MonoImageResolution 300 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects true /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (None) /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /Description << /ENU () >> >> setdistillerparams << /HWResolution [600 600] /PageSize [595.245 841.846] >> setpagedevice 
work_xnlurzozvjhgxeqd7lzp4p36fm	----	Picturing justice Review Essay Picturing justice Kyle Johannsen Saint Mary’s University, Halifax B3H 3C3, Canada 9kj29@queensu.ca The Right to Justification: Elements of a Constructivist Theory of Justice Rainer Forst Columbia University Press, New York, 2014, 368pp., ISBN: 9780231147095. Justice, Democracy and the Right to Justification: Rainer Forst in Dialogue Rainer Forst Bloomsbury Academic, Critical Powers Series, New York, 2014, 248pp., ISBN: 9781780939995 Contemporary Political Theory (2017) 16, 387–393. doi:10.1057/s41296-016-0069-8; advance online publication 23 September 2016 Rainer Forst is known among German- and English-reading political philosophers for his work on the debate between liberals and communitarians (Forst, 2002). In his relatively recent book, The Right to Justification, he extends the scope of his work to many of the most central topics in moral and political philosophy. Although originally published by Suhrkamp Verlag in 2007, an English translation of The Right to Justification was not published in hardcover until 2011, and thus English-reading philosophers have had to catch up. It would appear, however, that a number of them have now done so. Bloomsbury’s recent anthology Justice, Democracy and the Right to Justification: Rainer Forst in Dialogue contains a series of English essays by noteworthy philosophers about Forst’s book. In this review essay, I will discuss some of the main themes contained in each of the above-mentioned books. Particular attention will be paid to an exchange between Forst and Simon Caney concerning the manner in which justice should be ‘pictured,’ as well as to a related question concerning how the distinction between duties of justice and duties of humanitarian assistance should be drawn. The Right to Justification is divided into three parts. The first concerns a number of foundational topics in moral and political philosophy, e.g., the nature of practical reason, the distinction between the right and the good (or between morality and ethics, as Forst puts it), and the appropriate method for justifying principles of � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 www.palgrave.com/journals justice. The second defends Forst’s conceptions of various political concepts, including autonomy, democratic legitimacy, and social justice. The third and last section is about human rights, and issues of justice that pertain to the global context. The book’s central concept is what Forst calls the ‘basic right to justification’ (hereafter BRJ). According to Forst, the BRJ is implicitly at the heart of much contemporary political philosophy, specifically the sort of philosophy associated with the second of two dominant ‘pictures’ of justice. Whereas the first picture of justice is (according to Forst) primarily concerned with the distribution of goods, the second picture sees justice as primarily about justifying power relations. On the second picture, justice requires, first and foremost, that relationships involving the exercise of power be justified to those who participate in them. Individuals’ holdings remain important, but mostly insofar as distributing goods a particular way is relevant to justifying power relations (pp. 3–5). The BRJ is a kind of moral veto right: it is the right to demand that the social relations one participates in be beyond reasonable rejection. Although Forst conceives of this right quite broadly – he thinks that all moral norms must be justified to those whose behavior they govern – in political matters, at least, the BRJ functions as a right not to be subject to power relations that can be reasonably rejected (pp. 111–112, 246–248, 255–257). A relationship is beyond reasonable rejection, Forst claims, when it is justified reciprocally and generally. A reciprocal justification is one that does not demand ‘more from others than one is also willing to concede’ and does not project ‘one’s own interests and convictions onto others’ (p. 80). A general justification is one that does not ‘exclude anyone concerned and their needs and interests’ (p. 80). With the BRJ in hand, Forst proceeds to address a wide array of questions in political philosophy, and for the most part he adheres to the following pattern of analysis when doing so: first, he identifies two popular answers to the relevant question, each of which possesses its own particular merits and demerits. Second, he proceeds to show that the BRJ can be utilized to supply an additional alternative, one that avoids the pitfalls associated with the two he previously identified. For example, in chapter seven, Forst seeks to justify an interpretation of democratic legitimacy that he considers superior to liberal interpretations, most notably Johan Rawls’s, and to communitarian interpretations as well. A Rawlsian interpretation, on the one hand, has trouble explaining the role that a political conception of justice plays in limiting the scope of public reason. If, as is suggested by the idea of an overlapping consensus, the primary basis upon which a citizen accepts that conception of justice is from within her own conception of the good, then why would she accept a ‘duty of civility’ that requires her to refrain from advocating her conception of the good except when she can do so using the language of the political conception’s values? It would seem that more must Review Essay 388 � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 underlie citizens’ shared acceptance of a political conception of justice if they are to accord it the significance they supposedly must in public debate. If a Rawlsian interpretation of democratic legitimacy is too thin, however, then a communitarian interpretation is too thick. By requiring something along the lines of a shared conception of the good, communitarianism threatens to be an exclusionary view that fails to respect the fact of reasonable pluralism in modern democracies. The alternative, Forst claims, is an interpretation grounded in a shared, moral commitment between citizens to justify their political proposals to one another. In other words, Forst suggests that democratic legitimacy is possible so long as citizens share a commitment to respect each other’s right to justification (pp. 178–179). Overall, The Right to Justification is an impressive book. Forst’s goal of unifying a diverse array of topics under a single central concept: the BRJ, is a prodigious one, and Forst pursues it intelligently. Of course, such a grand goal is difficult to achieve in full, and thus I think it would be wise for readers to be somewhat skeptical. It is not the main purpose of my essay to be critical, however. So rather than attempting to produce (and justify) a list of places where Forst fails, I will merely say that even if Forst has not fully managed to achieve his goal of unification, partial achievement is still an impressive enough feat. The second book of interest to us, Justice, Democracy, and the Right to Justification, is a recent anthology devoted to Forst’s work in The Right to Justification. It was published as part of Bloomsbury’s ‘Critical Powers’ series, and like other volumes of that book series, it possesses the following dialogical structure: it begins with a lead essay written by the author whose work is under analysis (Forst in this case), follows with a series of essays that analyze the author’s work, and ends with the author’s replies to those essays. Since Forst’s lead essay contains a summary of many of the key ideas from The Right to Justification, the essays which follow it will not be unintelligible to those who haven’t yet read that book. That said, I think readers who’ve already read The Right to Justification are likely find those essays more rewarding. Forst’s lead essay is entitled ‘Two Pictures of Justice,’ and as one might expect, its purpose is to expand upon his claim that two dominant ‘pictures’ of justice are present in contemporary political philosophy, as well as to further justify his claim that the power relations picture is preferable to the distributive picture. As Forst clarifies in his paper, a ‘picture’ of justice is different from a ‘conception’ of justice. Whereas a conception aims to specify the content or ‘essence’ of justice, a picture is primarily linguistic: it is meant to capture the way the word ‘justice’ is used in linguistic practice, and thus a picture of justice may have multiple competing conceptions associated with it (pp. 3–4). According to Forst, the main problem with the distributive picture is that it fails to adequately account for a number of matters essential to justice, namely production, political power, public deliberation, and concrete instances of injustice (pp. 4–5). To back up his claims, Review Essay � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 389 Forst discusses a number of views from the contemporary literature that he thinks should be grouped (either fully or partially) under the distributive picture and proceeds to argue that they suffer from one or more of the above-mentioned problems. For example, in response to the sufficientarian claim that what is important in matters of distribution is whether people have a certain threshold level of goods, e.g., enough to meet their basic needs or to live an autonomous life, Forst argues that focusing on levels of goods leaves out the question of whether a person’s insufficient holdings is caused by an agent or by something else. Insufficiency that is caused by another agent is an injustice, and the duty to rectify it is a duty of justice. Insufficiency caused by a natural catastrophe, for example, is allegedly not an injustice, and the duty to remedy it is categorized differently: it is a duty of assistance. The section following Forst’s lead essay comprises a series of essays analyzing Forst’s work in The Right to Justification. In general, I think these essays will be helpful to Forst’s readers. The exegetical summaries they contain serve to clarify a number of Forst’s claims, particularly when read in combination with the clarifying remarks Forst himself makes at the end of the volume. Furthermore, the authors make a number of insightful criticisms. That said, their criticisms are, for the most part, familial. Many of the authors in this volume share Forst’s constructivism and/ or his critical theoretical perspective, and thus their criticisms are made from within the methodological framework he employs, broadly conceived. As such, I think readers’ enjoyment of this volume will vary to some extent depending on whether they share Forst’s methodological perspective. Whereas fellow constructivists and critical theorists may come away from the book feeling that Forst’s commentators asked most of the right questions, those who occupy other theoretical perspectives will perhaps feel somewhat neglected. A noteworthy exception to the book’s familial character, however, is Simon Caney’s essay. As Forst himself notes when reflecting upon Caney’s work, the latter’s style of writing and approach to political philosophy are what might be called ‘Oxfordian,’ i.e., highly analytic and permissive of value pluralism, among other things (pp. 205–206). Somewhat unsurprisingly, then, Caney challenges Forst’s claim that the power relations picture of justice is superior to the distributive picture, as well as his related claim that distributive justice is entirely derivable from the former picture. Caney’s thesis is that the two pictures of justice should not be thought of as competing alternatives, but rather as two aspects of justice, one of which is an account of how benefits and burdens should be distributed, the other of which is a procedural account concerning the justified exercise of political power. Further- more, Caney claims that the distributive aspect is not reducible to the procedural aspect: though an account of the justified exercise of political power has distributive implications, those implications may come apart from the requirements of the necessary independent account of how benefits and burdens should be distributed. As such, in order to formulate a justified, all-things-considered Review Essay 390 � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 assessment of whether a distribution is just, it is necessary, according to Caney, to take into account both whether it was produced via a legitimate political procedure, and whether it satisfies the appropriate, independent distributive criterion, e.g., a principle of distributive equality. Although Caney does not explicitly say so, he appears to be employing a distinction G.A. Cohen draws between two alleged aspects of justice, namely fairness and legitimacy. Fairness, on the one hand, is a property a distribution possesses in so far as it satisfies the right pattern – we will assume the right pattern is one version or another of distributive equality – whereas legitimacy is a property it possesses when ‘no one has the right to complain about it’ (Cohen, 2011, p. 129). Assuming that Forst’s BRJ is the correct conception of legitimacy, a distribution would be legitimate whenever it is inter-subjectively justified to shareholders, especially the worst-off. That legitimacy is not reducible to fairness is putatively supported by the judgment that an egalitarian distribution secured in an authoritarian fashion is nonetheless illegitimate. 1 That fairness is not reducible to legitimacy is supported by the judgment that an inegalitarian distribution is unfair even if secured via a set of deliberative democratic procedures respectful of Forst’s BRJ. To see if you agree with the latter judgment, compare two societies: one where distributive egalitar- ianism is firmly entrenched in the background political culture, the other where it is less so. In the latter society, the talented would not work as hard without economic incentives, nor would the untalented expect them to. In that context, the inequality associated with economic incentives can be justified to the worst-off so long as the greater productivity created works to their benefit. In the former, more egalitarian society, however, the talented are happy to work just as hard without incentives, and the untalented quite frankly expect as much. In this context, economic incentives cannot be justified to the worst-off, and their lack allows for a greater degree of distributive equality without any loss to productivity. Although both societies possess an inter-subjectively justified distribution, is it not the case that the more egalitarian distribution is fairer? If so, then fairness is not reducible to legitimacy. 2 By employing the distinction between fairness and legitimacy, Caney is able to address a number of the issues that Forst raises about the distributive picture. He indicates, for example, that political power and deliberation may very well be important to consider when theorizing the legitimacy aspect of justice, but that doesn’t mean that they must be taken into account when theorizing the fairness aspect of it (pp. 155–157). Interestingly, though, Caney does not use the fairness/ legitimacy distinction to address Forst’s claim that the distributive picture misunderstands the distinction between duties of justice and duties of assistance. Caney simply claims that there’s no reason why we should restrict our use of the term ‘injustice’ to cases where disadvantage is caused by an agent, e.g., to cases of exploitation or subjugation, and that there is a tradition in contemporary political Review Essay � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 391 philosophy of using the term more broadly than Forst does (p. 159). Although I think Caney is right to press this point, I also think that Forst is right to insist, as he does in his reply to Caney, that we need room for a distinction between duties of justice and duties of assistance. What’s more, I think he’s right to insist that there is a sense in which exploitation and subjugation are injustices, while disadvantage caused by sheer bad luck is not (pp. 206–207). To account for the concerns voiced by both Caney and Forst, I suggest that advocates of Caney’s/Cohen’s pluralistic picture of justice should adopt two distinctions. The first is between duties of distributive justice and duties of assistance. The second is between duties of distributive justice and duties of rectificatory justice (Aristotle, 1998, Book V, Section 2). Regarding the first distinction, duties of distributive justice are comparative: they concern who has what relative to others, whereas duties of humanitarian assistance are absolute: they are about ensuring that others have enough to meet their basic needs. Thus, for example, a duty owed by a rich group to a poor group because the poor group has less is a duty of distributive justice, while a duty owed by a rich group to a poor group because the poor group has less than enough to meet its members basic needs is a duty of assistance (Nagel, 2005, pp. 118–119). Of course, distributive justice, on the pluralist view, is more than just comparative: it also contains the element Cohen calls ‘legitimacy.’ However, if fairness is essentially comparative, and if it is a necessary condition on duties of distributive justice that they also be duties of fairness, then all duties of distributive justice are comparative. Regarding the second distinction, whereas duties of distributive justice apply in any case where the worst-off can rightly complain about their (relative) disadvantage, duties of rectificatory justice apply only in cases where an agent has caused another’s disadvantage and is thus responsible to that agent (the latter one) for rectifying the grievance. Thus, for example, a rich group owes a duty of distributive justice to a poor group, even when the former bears no responsibility for the latter’s deprivation, in so far as the poor group has the right to complain that the rich group has not done enough to reduce the inequality between them. Such a duty is a duty of distributive but not of rectificatory justice. Were it the case that the inequality between the rich group and the poor group reflects an exploitive relationship between them, however, then the duty owed by the former would be one of both distributive and rectificatory justice. Permitting a distinction between distributive and rectificatory justice suffices to accommodate both Forst’s and Caney’s points: namely that there is a sense (the rectificatory sense) in which the duty to remove exploitation and subjugation is a duty of justice while a duty to help the victims of sheer bad luck is not, even though there is another sense (the distributive sense) in which a duty to alleviate disadvantage traceable to sheer bad luck is a duty of justice. Review Essay 392 � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 Notes 1 I have reservations about this judgment. It is a near universally accepted liberal truth that fairness requires an equal distribution of liberties, and that the right to political participation is such a liberty. If we grant as much, then it is false that a distribution (of all the relevant goods) secured in an authoritarian manner could ever be completely fair, as authoritarianism presupposes an unequal distribution of the right to political participation. 2 Cohen’s thoughts about the relationship between justice, institutions, and interpersonal justification inspired the comparative judgment I describe. See Cohen, 2008, pp. 27–86 and 126–127. References Aristotle (1998) Aristotle: The Nicomachean Ethics. trans. D. Ross, J. O. Urmson, J. L. Ackrill, Oxford: Oxford University Press. Cohen, G.A. (2008) Rescuing Justice & Equality. Cambridge: Harvard University Press. Cohen, G.A. (2011) Fairness and Legitimacy in Justice; [and] Does Option Luck Ever Preserve Justice? In: M. Otsuka (ed.) On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy, Princeton: Princeton University Press, pp. 124–143. Forst, R. (2002) Contexts of justice: Political philosophy beyond liberalism and communitarianism. Los Angeles: University of California Press. Nagel, T. (2005) The Problem of Global Justice. Philosophy and Public Affairs 33(2): 113–147. Review Essay � 2016 Macmillan Publishers Ltd. 1470-8914 Contemporary Political Theory Vol. 16, 3, 387–393 393 Picturing justice The Right to Justification: Elements of a Constructivist Theory of Justice, Rainer Forst Columbia University Press, New York, 2014, 368pp., ISBN: 9780231147095. Justice, Democracy and the Right to Justification: Rainer Forst in Dialogue, Rainer Forst Bloomsbury Academic, Critical Powers Series, New York, 2014, 248pp., ISBN: 9781780939995 References 
work_xnwnf3ocxfa4po7swgxhamki4q	----	warwick.ac.uk/lib-publications Original citation: Sorell, Tom. (2016) Online grooming and preventive justice. Criminal Law and Philosophy. Permanent WRAP URL: http://wrap.warwick.ac.uk/79478 Copyright and reuse: The Warwick Research Archive Portal (WRAP) makes this work by researchers of the University of Warwick available open access under the following conditions. Copyright © and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable the material made available in WRAP has been checked for eligibility before being made available. Copies of full items can be used for personal research or study, educational, or not-for profit purposes without prior permission or charge. Provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. Publisher’s statement: “The final publication is available at Springer via http://dx.doi.org/10.1007/s11572-016- 9401-x “ A note on versions: The version presented here may differ from the published version or, version of record, if you wish to cite this item you are advised to consult the publisher’s version. Please see the ‘permanent WRAP URL’ above for details on accessing the published version and note that access may require a subscription. For more information, please contact the WRAP Team at: wrap@warwick.ac.uk http://go.warwick.ac.uk/lib-publications http://go.warwick.ac.uk/lib-publications http://wrap.warwick.ac.uk/79478 http://dx.doi.org/10.1007/s11572-016-9401-x http://dx.doi.org/10.1007/s11572-016-9401-x mailto:wrap@warwick.ac.uk 1 On-Line Grooming and Preventive Justice Tom Sorell Interdisciplinary Ethics Research Group Department of Politics and International Studies University of Warwick Coventry CV4 7AL +44 (0) 2476 528031 T.Sorell@warwick.ac.uk Abstract: In England and Wales, Section 15 of the Sexual Offences Act (2003) criminalizes the act of meeting a child –someone under 16—after grooming. The question to be pursued in this paper is whether grooming –I confine myself to online grooming—is justly criminalized. I shall argue that it is. One line of thought will be indirect. I shall first try to rebut a general argument against the criminalization of acts that are preparatory to the commission of serious offences. Grooming is one such act, but there are others, sometimes associated with terrorism. According to me, the general argument misapplies certain considerations about autonomy that are alleged to be in force in other areas of criminal law. Contrary to that general argument, criminalization of preparatory acts does not, in general, bypass the agency of citizens. Moreover, the criminalization of preparatory acts can disrupt activity that would have led to very serious crime, and with relatively low costs to the perpetrators, costs that reflect the non-occurrence of the more serious crime. There is evidence that grooming is harmful in itself, and so another point against the general argument is its assumption that preparatory offences are often harmless or at least victimless. There are objections to some of the undercover policing techniques that lead to a Section 15 prosecution, but these objections are not all weighty. Keywords: Anti-Paedophile policing Preparatory offences Sexual Grooming Sexual Offences Act (2003) Undercover policing Preventive justice mailto:T.Sorell@warwick.ac.uk 2 Grooming occurs when an adult prepares someone –usually a child—for sexual contact. This behaviour is criminalized in many jurisdictions, and it is one of a range of offences that have been called into question by critics of preventive justice.1 In England and Wales, Section 15 of the Sexual Offences Act (2003) criminalizes the act of meeting a child –someone under 16—after grooming. The offender must be over 18, and must have met or communicated with the child at least twice. In addition, the offender must have intended to meet the child and travelled to the meeting intending to commit one of a range of offences defined in Part One of the Act. These range from outright rape to a variety of sexual assaults. Part One distinguishes between, on the one hand, rape and assaults against children under 13, and cases where the victims are older but under 16. Section 15 has some distinctive features. For example, it applies to international travel, some part of which is within the domestic jurisdiction. This means that if someone in London who was engaged in the online grooming of a child in e.g. Thailand or America flew out from England or Wales to meet that person, intending to engage in a sort of sexual contact outlawed in England and Wales, that traveller would still be liable to prosecution on returning to England and Wales. Offences under section 15 are punishable by a maximum of 10 years imprisonment on indictment. The question to be pursued in this paper is whether grooming –I confine myself to online grooming— is justly criminalized as in Section 15. I shall argue that it is. One line of thought will be indirect. I shall first try to rebut a general argument against the criminalization of acts that are preparatory to the commission of serious offences. Grooming is one such act, but there are others, sometimes associated with terrorism. According to me, the general argument misapplies certain considerations about autonomy that are alleged to be in force in other areas of criminal law. Contrary to that general argument, criminalization of preparatory acts does not, in general, bypass the agency of citizens. Moreover, the criminalization of preparatory acts can disrupt activity that would have led to very serious crime, and with relatively low costs to the perpetrators, costs that reflect the non-occurrence of the more serious crime. There is evidence that grooming is harmful in itself, and so another point against the general argument is its assumption that preparatory offences are often harmless or at least victimless. The rest of this paper falls into four parts. In the first, I introduce the Section 15 offence and indicate the number of prosecutions that have been brought under it since 2006. Next, I expound and criticize the general argument against criminalizing preparatory offences. I go on in the third section to give reasons why the approach to grooming in section 15 of the Sexual Offences Act in particular is justifiable. First, it effectively distinguishes between “contact” groomers and “fantasy” groomers, 2 removing doubt about grooming offences based on the possible remoteness of grooming behaviour from actual sexual contact. Second, s.15 distinguishes between, on the one hand, the sexualization of online behaviour between children, and, on the other, grooming by forensically aware adult paedophiles who sometimes pose as sexualized children. In the final section, I discuss the justifiability of two kinds of undercover operations that are used to collect evidence for prosecutions of Section 15 offences. I argue that while the two kinds of operations are morally different, and one is normally more objectionable than the other, both are often morally justifiable on balance. 1 A Ashworth and L Zedner, Preventive Justice (Oxford: Oxford University Press, 2014), p.99. Daniel Ohana, ‘Responding to acts preparatory to the commission of a crime: Criminalization or prevention?’ Criminal Justice Ethics 25 (2006) pp. 23- 39. See also Petter Asp, ‘Preventionism and Criminalization of Nonconsummate Offences’ in A Ashworth, L Zedner, and P. Tomlin, eds. Prevention and the Limits of Criminal Law (Oxford: Oxford University Press, 2013), p.23; p. 25; p. 28. 2 Stephen Webster et al, European Online Grooming Project, Final Report, 2012: http://www.europeanonlinegroomingproject.com/media/2076/european-online-grooming-project-final-report.pdf 3 1.Meeting a Child after Grooming Section 15 is in keeping with, if not motivated by, the following line of thought about serious crime: The more serious a crime –understood in relation to a scale of harm and culpability—the more urgent it is to prevent it. Prevention can sometimes take the form of criminalizing component offences, or criminalizing steps that, while apparently harmless in isolation, characteristically lead to the intentional commission of the serious crime. The penalty for the commission of the component or preparatory offences is of course lighter, sometimes much lighter, than the penalty for the full blown offence (2 years in prison is the starting point for a section 15 offence against a child over 13 but under 16), so that defendants convicted of them do not suffer disproportionately. More importantly, the availability of these offences allows charges to be brought against suspects before serious harm can be done. Even if the proceedings arising from these charges produce no conviction, bringing charges can itself disrupt a course of action that might have led to serious harm and that would have been more difficult to disrupt if it had been allowed to run on. Here ‘serious crime’ refers to a Part One offence, such as rape or assault of someone under 13 or 16: if the criminalization of grooming prevents this sort of crime, then, according to the line of thought just articulated, it is justified. When associated with the internet, Section 15 prosecutions usually involve a record of online chat between the suspect and a child. Online chat rooms can be visited speculatively by groomers, or visits there can follow contact on social networking websites which contain very detailed profiles and sometimes photos of children who become grooming targets. Chat room contact typically begins with introductions and an indication of ages and gender. Names –usually pseudonyms—will be exchanged. Then a process will begin in which the suspect will gather information about the child and show interest or admiration. Along the way, mobile telephone numbers (or even email and home addresses) will have been exchanged. Online chat is orchestrated by the groomer in such a way that it eventually turns to the discussion of sex. The groomer will often send pornography to the child, and prompt sexualized text or chat room messages. Sometimes the suspect will be interested in the sexual experience of the child, and will offer to teach the child sexual techniques. At other times the suspect will induce the child to produce sexualized webcam or smartphone images of herself. (The vast majority of grooming targets are female.) Then a meeting may be proposed, sometimes at a place that the child suggests. The chat record may contain evidence of an agreement to engage in sexual contact, in which case the makings of a Section 15 prosecution are in place, other things being equal. The chat record may also reveal evidence of the suspect’s awareness of the risks of arrest should the plans for the meeting be discovered by parents or come to the attention of the authorities. Arrests on Section 15 charges are sometimes made after parents discover that their child is engaged in sexualized online conversation. The police are informed, and sometimes, with the appropriate authorizations under the Regulation of Investigatory Powers Act (2000) (RIPA), undercover officers will assume the online identity of the child until the arrangement to meet is proposed by the groomer. Police will then arrest the suspect at the proposed meeting place. While the suspect is being questioned, the police will carry out an authorized search of the suspect’s home address and seize computers. Subsequent investigation sometimes reveals downloaded indecent images of children, and 4 sometimes even evidence of participation in online paedophile groups. In such cases further charges can be brought. Section 15 arrests can also be made on the basis of the action of online vigilantes. These are civilians who pose as children on social media sites and cultivate approaches for sex from groomers. Like undercover police, they will carry on a protracted online conversation with a suspect, agree to a meeting, and then, when the suspect arrives, confront him on camera. The film is subsequently posted online as an act of exposing a paedophile. The police in England and Wales sometimes act on information provided by the vigilantes, but the guidance from the Department of Public Prosecutions (DPP) on the use of this material points to difficulties with vigilante operations in relation to RIPA,3 and a Memorandum of Understanding between the Crown Prosecution Service and the Association of Chief Police Officers is critical of vigilante operations, and excludes certain defences by vigilantes against charges for making indecent images, even if that was done to gain the trust of a suspect in the course of a “sting” operation. McGuire and Dowling have summarized proceedings under Section 15 between 2006 and 2012:4 Table 1. Section 15 proceedings by year and gender of victim, 2006-2012 Table 1 is not confined to cases of proceedings launched against suspects after online grooming alone, and many more grooming offences were recorded by police than were proceeded against:5 3 http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/#a29 4 M McGuire and S Dowling, Cyber-crime: A Review of the Evidence (London: HMSO, 2013), ch. 3. This table makes confusing reading. It will quickly be noticed that the number of those sentenced in a given year can exceed the number proceeded against in that year. This because cases can carry over from one year to the next, with sentencing in a year later than proceedings started. 5 McGuire and Dowling, op. cit. p. 8 5 Table 2. Number of recorded grooming offences by year in England and Wales, 2004-2013. Tables 1 and 2 show that the number of grooming offences is relatively low,6 that the number of prosecutions is lower still, but that the conviction rate for those prosecuted is high. There are much larger numbers of recorded offences of possessing, making and distributing indecent images compared to grooming offences. For example, charges of making an indecent photograph of a child were brought in over 14,000 cases in 2012-13, 7 dwarfing the numbers of Section 15 proceedings. 2. Section 15 and general objections against preparatory offences What, if anything, is morally wrong with Section 15? It would certainly be criticizable if it incorporated stereotypes about grooming that are not borne out by relevant empirical research. It would equally be open to criticism if prosecutions under it regularly failed. I shall consider the criticism that it carries risks of injustice associated with the criminalization of preparatory offences. Ashworth and Zedner have developed this sort of criticism.8 They include section 15 among preparatory or pre-inchoate offences, one of 9 categories of preventive offences they recognize. Preparatory and pre-inchoate offences include heavily criticized provisions of the UK Terrorism Acts. Ashworth and Zedner argue against the criminalization of acts in this category from two directions: they (a) try to undercut some of the general defences of their criminalization on the basis of the harm principle, and (b) introduce and justify “restraining principles” for preparatory offences. I argue that neither approach is entirely successful against the whole range of preparatory offences and that, in particular, section 15 survives both kinds of criticism. The reasoning behind the criminalization of preparatory acts might be put as follows. “If a type of act A is very harmful, say because it produces fatal or life-threatening injury on a large scale, then the prevention of a type-A act is justified, other things being equal. The prevention of a type-A act is a matter of the prevention or discouragement of a type-B act, where a type-B act characteristically precedes and facilitates a type-A act. Where type-A is a co-ordinated suicide-bomb attack, type-B acts might include online or offline meetings to recruit possible attackers; online or offline meetings to plan an attack; purchases of bomb- making materials; communications with people known by the police to have bomb-making expertise; and so on. To the extent that there is evidence that a Type-B act is likely to contribute to a Type-A act, the harm caused by the Type-A act justifies the criminalization of the Type-B act.” 9 6 But the corresponding American figures are much higher. In 2006 there were more than 6,300 reports of online “enticement” of children, up from 2600 the previous year. See K Raymond Choo, Online Child Grooming: A Literature Review on the Misuse of Social Networking Sites for Grooming Children for Sexual Offences grooming( Canberra: Australian Institute of Criminology, 2007) p.25. 7 Under Protection of Children Act 1978, Ss.1(1)(a) and 6. See McGuire and Dowling, p.15 8 A Ashworth and L Zedner Preventive Justice (Oxford: Oxford University Press, 2014) p. 110 9 This reasoning is in keeping with what Simester and von Hirsch (Crimes, Harms and Wrongs (Oxford: Hart, 2011) call the Standard Harm Analysis, even though instances of Type A and Type B acts may be temporally remote from one another. 6 The most obvious problem with this reasoning is that type-B acts can contribute not only to Type-A acts but also to perfectly harmless Type-C acts. For example, the purchase of large amounts of fertilizer can contribute to bomb-making for a terrorist attack, but it can also contribute to a perfectly harmless, or indeed beneficial, agricultural enterprise. Ashworth’s and Zedner’s argument against preparatory offences is partly to do with the fact that perfectly harmless and ordinary behaviour as well as acts leading to terrorism can be eligible for charges; in addition, Ashworth and Zedner give weight to the chilling effect: people being put off harmless and legal behaviour leading to Type-C acts for fear of being taken by the authorities to be preparing Type-A acts. In general, Ashworth and Zedner hold that preparatory offences limit the liberties of everyone in some ways, and disproportionately limit the liberties of the few –for example, those fitting discriminatory stereotypes that might be implicit in profiles of potential terrorists. 10 More generally, Ashworth and Zedner criticize arguments from harm for what they regard as their utilitarian bias. The arguments may look irresistible when rightness or wrongness itself is a function of harm and benefit, but liberty is valuable, too, even when it is potentially harmful, and the argument from harm for preparatory offences arguably fails to give liberty enough weight.11 The force of this sort of argument varies with the range of preparatory offences associated with the production of serious harm. Ashworth and Zedner do not show that it is unjust for the police ever to take an interest in anyone who buys large quantities of fertiliser. There are good reasons for the police to look into such a purchase, notwithstanding the innocent uses of large quantities of fertiliser. Similarly with other ingredients of explosives. In UK terrorism legislation, however, many things other than purchasing bomb-making equipment are taken to facilitate violent offences, including some kinds of non-disclosure, and some very vaguely specified kinds of possession. The looser the association of these with the preparation of a terrorist attack, the more the limitation of liberty involved in their criminalization seems disproportionate. Only when the association between criminalized acts and the harm of terrorism is very loose does the Ashworth-Zedner position acquire real force.12 And even in these cases their position may be overdrawn relative to the practice of police and prosecutors. For the fact that certain sections of the Terrorism Act (e.g, sections 1 and 75) are arguably too vague, or set the threshold for contributing to a terrorist act too low, needs to be taken together with the fact that that the authorities have brought few or no prosecutions under them.13 Again, the fact that a lot of behaviour criminalized under the Terrorism Act (2000) can easily turn out to be harmless means that the burden of showing in a particular case that the behaviour is harmful is not a trivial one. The burden is made even harder to discharge by the fact that people who conspire to prepare acts of terrorism are often forensically aware and, as a result, conduct their electronically 10 Ibid p. 104 11 Ibid. 12 See also Simester and von Hirsch, op.cit. ch. 13. 13 According to the most recent (2014) statistics (https://www.gov.uk/government/publications/operation-of-police-powers- under-the-terrorism-act-2000-financial-year-ending-march-2014/operation-of-police-powers-under-the-terrorism-act-2000- and-subsequent-legislation-arrests-outcomes-and-stops-and-searches-great-britain-financial ), “of the 460 persons charged under terrorism legislation since 11 September 2001 the main principal charges related to: possession of an article for terrorist purposes (16% of such charges);preparation for terrorist acts (16%);failing to comply with duty at a port or border controls (16%);collection of information useful for an act of terrorism (10%);fundraising (10%).” In this respect the independence of the Dept. of Public Prosecutions counteracts remnants in Terrorism legislation of populist provisions whose introduction was more a matter of pose or gesture than of considerations of practicability. 7 intercepted conversations in coded vocabulary. These facts translate into obstacles in the way of successful prosecutions under the Terrorism Acts, and so obstacles to the loss of liberty. Even when charges are brought against suspects for preparatory offences, clear evidence of an intention to mount a lethal attack may be hard to adduce. Does this fact show that preparatory acts should not be criminalized in the first place? No, and neither does it show that criminalization cannot help with prevention. After all, with the preparatory offence in place, the mere act of bringing charges under it may be enough to disrupt the preparation of a terrorist act by someone against whom a successful prosecution cannot be brought, and the charges can communicate to all concerned that certain people have come to police attention and that their future participation in harm-producing conspiracies would probably attract police attention, too. This message may well set back the plans of terrorist conspirators, and it can be conveyed whether or not a subsequent prosecution fails. In this way criminalization aids disruption but not necessarily disruption that deprives anyone –including anyone innocent-- of their freedom. It is not obvious, in fact, that any harm is necessary inflicted on anyone by disruption without arrest. (On the other hand, disruption that includes arrest can be harmful to the extent that arrest by itself is stigmatizing.) If the Ashworth-Zedner criticism of appeals to harm by defenders of the criminalization of preparatory offences is less than conclusive, what are we to say of their arguments for restraining principles for preparatory offences? One restraining principle is that acts that are criminalized not be too remote from the production of harm.14 But how remote is too remote? Some preparatory acts might involve no intention to produce harm oneself at all, as when one publicly approves of some past terrorist act without any encouragement to anyone to follow its example. But suppose that someone actually produces a working bomb with the intention of detonating it as an act of jihad, but then has a change of heart and abandons the jihadist project. Should the production of the bomb still attract a conviction under section 5 of the Terrorism Act (2006) if charges are brought after the change of heart? And should we say that where there is a possibility of a change of heart that criminalization is out of order and only starts to be in order when a point of no return has been reached? Ashworth and Zedner seem to answer this last question in the affirmative: It is generally accepted that punishment for mere thoughts is objectionable, since it invades the individual’s private world and allows liability to turn on ideas that the individual has not gone so far as to bring into the external world. Moreover, individuals should be treated as capable of changing their mind and conforming to the criminal law, ‘because this is what it is to respect him as a responsible agent’. This may be a sufficient reason for ruling out ‘any overt act’ as an appropriate test, and also some of the ‘substantial steps’ set out in the Model Penal Code which involve preparatory acts such as reconnoitring a location. What is wrong with those tests is that they criminalize the individual as an attempter when the distance to the substantive offence is so great that a change of mind remains a possibility.15 This passage suggests that the point of no return occurs where an agent becomes liable to an attempt charge, and it suggests further that criminalizing a preparatory act in effect pushes the point of no return earlier in time, at the cost of not treating the agent as responsible. But this line of thought is unsound. First, what is at issue is whether it is justifiable to criminalize steps in a harm-producing process, if the steps come before the attempted full blown crime. Even if 14 Ashworth and Zedner, p. 109 15 Ibid. p.110 8 the criminalization of very early steps is not justified, this is not because agents who go through with the early steps could still change their mind about the later steps.16 It is because the type of offence constituted by taking an early step is usually very far from producing harm. But what about steps later on in the process? An intermediate step –such as the act of making a working bomb—has already significantly increased the probability of harm. For example, a bomb that is not entirely competently made can become unstable and explode even if the maker does not want it to. If that happens, then even if the maker had abandoned the plan of detonating it in a terrorist attack, he had gone beyond the point of no return with respect to the threshold for harmful effects, and he is responsible for producing the unstable but as yet undetonated bomb. Arguably, he had reached the threshold for doing serious harm even earlier, when he assembled bomb-making ingredients separately. If so, then it makes sense to criminalize arrival at the lower threshold for doing significant harm in a way it does not make sense to criminalize expressions of support for past terrorist acts. Reaching the threshold for doing significant harm is what matters, notwithstanding the distance between reaching this threshold and outright attempt, or the distance between reaching this threshold and the fully realized result of a terrorist attack. Now if a threshold for significant harm can be reached by a preparatory offence like assembling bomb materials, and if an agent knows that preparatory acts have been criminalized, then the law does not treat the agent as irresponsible by treating steps earlier than an attempt as points of no return for less serious offences than attempted mass-murder. For the agent presumably has the same opportunity for changing his mind about putting together the fertilizer and peroxide as he has, later on, for changing his mind about detonating the finished bomb. The line of thought developed by Ashworth and Zedner only reaches their preferred conclusion if all steps before attempt are harmless. Again, it is quite disputable to say, as Ashworth and Zedner do, that treating someone as a responsible agent has some special connection with making allowances for last-minute changes of mind. For the most serious offences, that is, the kind of offences that are most likely to produce life- threatening injury or death, or life-threatening injury and death on a large scale, it makes sense for the law to say not only ‘Don’t commit those offences –or else!’ but ‘Don’t even go there!’ or ‘Don’t even think about it! --or else.’ Now this sort of injunction does not literally make a crime of something that goes on in an agent’s mind: it does not create a thought-crime in the strict sense. ‘Don’t even think about it!—or else’ does not mean ‘Don’t even conjure up the mental image of a terrorist attack!—or else’. It means: ‘Don’t take so much as the first step toward a terrorist attack--or else’ –precisely the message of the laws that criminalize preparatory acts. When the injunctions expressed by the criminalization of preparatory acts are understood in this way, there is still room for dispute as to whether certain criminalized acts are in fact even first steps. This is the sort of dispute that might break out over the offence of “glorifying terrorism” in s.1. of the Terrorism Act (2000). But for the bomb-making step in the process of preparing a terrorist attack (which seems to engage with s.5 of the Terrorism Act (2000)), this dispute does not seem to me to arise, and it does not seem to treat an agent as irresponsible for the law to insert into their deliberations that they face a certain term of imprisonment for so much as assembling a bomb. Similarly for meeting a child for sex after grooming, as I shall argue later. 16 Pace L. Alexander and K Ferzan, Crime and Culpability (Cambridge: Cambridge University Press, 2009), p. 197. 9 At this point, sceptics about preventive justice may have to turn to fundamental differences in “logic” between punishment and prevention.17 Punishment takes account of an agent’s past law-breaking behaviour and imposes hard treatment proportionate to that behaviour. But where a measure is preventive, a rather different logic seems to be entailed— that the type and quantum of the measure imposed must be those judged necessary to bring about a significant reduction in the risk of future harm, irrespective of whether those measures are proportionate to any past or present conduct of the subject. ... [W]here the rationale is desert, the punishment must censure the subject in a way and to an extent that respects his or her responsible agency, and the role of prevention is to supply underlying deterrence whereas the choice or quantum of the sanction should be governed by proportionality considerations. Where prevention is the rationale its logic applies without respect for whether the subject is a responsible agent or not, since the purpose is to obtain the optimal preventive outcome.18 But this line of thought is highly disputable. It implies that proportionality is at home with punishment but not prevention, and it is easy to think of counterexamples. Thus, it is customary for department stores to prevent shoplifting by CCTV surveillance, by alarm-activating devices attached to goods, and by posting unarmed security guards at exits equipped with alarms. Preventing shoplifting by shooting shoplifters at exits might be more effective, but there is nothing in the logic of prevention that entails that shoplifting be prevented at all costs, or that shooting be preferred to arrest by unarmed guards when both are effective. Preparatory offences are proportionately less severely punished than consummated offences. If the penalties reflected the alleged logic of prevention, the penalties would be whatever was sufficient to discourage taking first steps toward the consummated offence. Sufficiency might be associated with much more severe penalties than are actually threatened or applied in relation to preparatory offences. Again, preparatory offences work with police strategies of disrupting the plans of those embarked on serious crime. This is not a matter of as it were paralysing the planners of serious crime, but of bringing charges so as to induce the thought that continuing with those plans will be futile because the plans are no longer secret. The “different-logics” claim associates proportionate punishment for individuals after prosecution with respecting persons, and associates prevention with treating people indiscriminately –regardless of their past conduct—and treating them as appropriate sites for whatever discouraging pressures produce omissions of unwanted behaviour. This sharp contrast between prevention and punishment makes no allowance for the way that the threat of punishment works in laws against consummated offences. For example, the law against homicide is addressed to everyone in a jurisdiction— irrespective of their past or present behaviour. If ignoring past behaviour is objectionable in the criminalization of preparatory acts, why is it not also objectionable in the threats of punishment carried by laws whose prosecution starts after the fact? In laws against homicide, for example, the threat of hard treatment in the form of a long term of imprisonment is addressed to those who would not dream of killing anyone, as well as those who would. Why does not this indiscriminate form of address treat too many people as dangerous if preparatory offences do? Again, why is not the threat of severe treatment for homicide also open to the objection that it uses fear of imprisonment to deter people rather than thoughts about the costs to people of being killed? I think the Ashworth-Zedner argument from the different logics of prevention and punishment does imply—controversially if not 17 This paragraph and the next are drawn from my unpublished ‘The Scope of Serious Crime and the Justifiability of its Prevention’ 18 Ashworth and Zedner, p.18 10 simply incorrectly-- that the threat in the law against homicide is objectionable for both its indiscriminateness and its eliciting demotivating fear rather than demotivating reasons --thoughts about the badness of being killed. Suppose the prospect of hard treatment is the only thing that keeps a particular person K from killing someone else. In that case the agent is –in Kantian terms--only pathologically driven, not governed by practical reason. Fear of imprisonment rather than an understanding of the reasons why homicide is wrong operates to deter K from homicide. Although he is not a typical agent, K is still a suitable addressee of a law against homicide. This made sense to Kant because he thought people in general were hybrids of pathology and autonomy, and that juridical law added engagement with pathology to the moral law against killing, which only engages with reason. Typically the juridical law as Kant conceives it addresses both elements of the hybrid, providing in Kant’s terms “pathological” or inclination-based motivation in addition to moral motivation for not killing. In other words, there are reasons for not killing that most agents can understand and accept, and these can motivate alongside the threat of hard treatment, or independently of it, to produce compliance with the law against homicide. It is not as if the pathology-engaging part of the law –the “or else”--denies or cancels out the agency of most addressees, that is, agency in the form of receptiveness to moral reasons. The mere fact that a threat is made by the law does not imply that the law treats an agent as solely pathologically motivated –impervious to the other reasons against homicide. Not everything in the law has to treat its addressees as (fully) responsible, according to Kant. The Ashworth-Zedner position seems incorrectly to deny this. Writers other than Ashworth and Zedner, including Simester,19 seem to require that the law, in Waldron’s phrase, should not be “brute” at the same time as it is mandatory. It should treat its addressees as fully responsible, which, according to Simester, it can fail to do in the case of preparatory offences. I have just suggested that the law need not treat all of its addressees as fully responsible in the sense of always being open to the force of strong reasons for aborting a course of action leading to a consummated offence. But in the case of preparatory offences where what Simester calls a “nexus” condition is met –the otherwise harmless proscribed thing is done by an agent with an intention to do harm20-- the agent is responsible for the preparatory behaviour, and the behaviour is not innocent in the sense of not intended to be harmful. Simester asks how justification for the criminalization of preparatory acts can rule out the criminalization of an act of eating cereal that serves to nourish an intending murderer. I think the answer may be to develop the nexus requirement more fully. Unless eating cereal instantiates a type that is mentioned by a statement of a causal regularity leading to a type of serious harm, it does not meet a nexus requirement. To illustrate, it might be true that eating cereal is nourishing and that being nourished helps agents carry out their plans, but that is not a causal regularity that leads to harm, since being helped to carry out a plan is not a type of harm. Again, it is not always true that eating cereal helps intending murderers to carry out murderous plans just because eating cereal helps people to carry out their plans. Someone who is hungry and is planning a murder is not necessarily in need of food in order to commit the murder. He may need food anyway. The nexus requirement, suitably nuanced, may be the key to keeping the justification for preparatory offences from becoming too permissive. 19 “Prophylactic Offences” in G.R. Sullivan and I Dennis, Seeking Security: Pre-empting the Commission of Criminal Harms (Oxford: Hart, 2012), p. 70 20 Ibid. p. 67f. 11 3. The appropriate threshold for a preparatory grooming offence Ashworth and Zedner include Section 15 offences among the targets of their onslaught on the criminalization of preparatory acts. But is Section 15 comparable to problematic provisions in counter-terrorist legislation? For example, does it criminalize a type of preparatory act that occurs too early in the typical stages of the process leading from the online grooming of a child to sexual assault? There are two aspects to this question. First, it implies, perhaps objectionably, that harm is only inflicted at the stage of sexual assault, and not in the grooming. Later, I dispute this. But beforehand I consider whether the Section 15 preparatory offence justifiably focuses on the meeting stage of the process of grooming for sex. To sharpen this question, let us consider the (in England and Wales) fictional offence of sexualizing an online conversation with someone believed to be under 16. Suppose that this offence is committed if and only if (i) sexual content is introduced into an online conversation with a child; (ii) the conversation partner introducing the sexual content is over 18; and (iii) the sexual content might reasonably be believed to express an intention to meet a child after grooming. Someone whose behaviour meets these conditions might not yet have proposed a meeting in so many words, but might have behaved in a way which a reasonable person would believe was putting sex on the agenda in an ongoing online relationship with a child.21 If there were an offence of sexualizing an online conversation, then that would criminalize a step in the process leading to a sexual assault that occurred earlier than meeting a child after grooming. This might qualify as a suspect precursor offence for the same reason that some precursor offences in the case of terrorism are suspect: namely, the looseness of the connection between that kind of offence and outright sexual assault: that is, although sexualized conversation may raise the probability of a sexual assault, it is causally insufficient for such an assault. Would the fictitious offence of sexualizing an online conversation with a child be justified, then, if incorporated into the Sexual Offences Act (2003)? The looseness-of-the-connection point is one reason to think not, but there are also empirical reasons. Recent and influential empirical work on sex crime distinguishes between contact and fantasy groomers among those who are operating in online chat rooms.22 According to this work, there are some chat line groomers who are content with sexual fantasies generated by sexualized conversations. These groomers do not wish or intend to meet their conversation partners: the fantasies fuelled by conversation with children by themselves provide material for auto-erotic gratification. For these groomers, then, the sexualization of online content is not a preparation for sexual contact, let alone sexual assault. The existence of fantasy groomers constitutes an objection to a preparatory offence of sexualization of online conversation with a child. It may even count against an offence of sexualizing conversation with children, when the makeup of the group at the receiving end of these conversations is taken into account. For child targets of online grooming are themselves not all of one kind. According to the taxonomy developed by the European Online Grooming Project,23 there is a “resilient” child internet user, and this type predominates: 21 My imaginary offence of sexualizing a conversation seems to resemble section 474.27 of the Australian Criminal Code Act (1995), which carries a penalty of 12 years imprisonment. See Choo, op.cit. p. 4 22 Peter Briggs, Walter T. Simon, and Stacy Simonsen ‘An Exploratory Study of Internet-Initiated Sexual Offenses and the Chat Room Sex Offender: Has the Internet Enabled a New Typology of Sex Offender?’ Sex Abuse March 2011 23: 72-91 23 Stephen Webster et al, European Online Grooming Project, Final Report, 2012: 12 the greater proportion of young people approached [in our research study] were resilient and refused to engage when they sensed the person they were talking to was ‘weird’. For example, some young people were described as abruptly ending initial interactions by: cutting-off the online link when the groomer started a sexual conversation; blocking the groomer on the site; and/or hanging up the mobile phone.24 If a large number of children interacting online with others can recognize sexualization as a danger signal, and are able safely to discontinue contact with groomers once sexualization of conversation begins; if they are able to shrug off that online experience, then perhaps the sexualization offence we have invented is not properly regarded as an offence leading to sexual contact, or even as harmful enough to criminalize. Of course, the “resilient” child group could in the future shrink as a proportion of the total number of children using online chat rooms. If the proportion of “resilient” children in chat rooms became tiny, and the proportion of very isolated and vulnerable children was much higher than research indicates it currently is, the argument from harm for the sexualization offence might be strengthened. On balance, however, the case for a preparatory offence of sexualization of online conversation does not look strong. Do problems with that offence infect other preparatory offences, including Section 15? The answer is a clear ‘No’. First, Section 15 has a far higher threshold for charges than the sexualization offence. Section 15 requires (i) a minimum level (2 occasions at least) of contact between someone over 18 and a child; (ii) evidence of a plan on the part of the person over 18 to meet the child; and (iii) actual travel toward the agreed meeting point by the person over 18 after that person has sexualized the conversation and expressed a desire for sex with the child. Behaviour that satisfies these conditions indicates that grooming as opposed to some other behaviour is being displayed.25 Section 15, then, cannot be criticized on the same grounds as the sexualization offence. Not only does it exclude fantasy groomers, but it requires persistence in online contact, typically, sexualized contact. Nor, in my view, can Section 15 be criticized as excessive just because it is a pre-attempt offence. Here an analogy with pre-attempt terrorism offences may help. We agreed in the last section that some pre-attempt offences raise the probability of harm significantly, while others are only very loosely associated with harm, if associated with harm at all. Behaviour fitting the Section 15 offence comes closer to preparatory offences in the case of terrorism that raise the probability of harm e.g. part-assembling a bomb, than those that by themselves are only loosely connected with harm e.g. an act of “glorifying” terrorism. In other words, meeting a child after grooming comes closer to being harmful in its own right than to being only loosely connected with harm. To go back to the argument of the last section, although assembling materials for explosives is perhaps not sufficient for an attempted terrorist attack, it does reach a threshold for being a dangerous act, in that assembling explosives before detonation could itself be lead to explosion. For some groomers, physical proximity to a child will increase the probability of an assault much more than online contact, even when webcams and message-exchanges in real time bring virtual meetings much closer as experiences to physical meetings. So taking the step of achieving physical proximity can by itself be very dangerous, which creates a prima facie case for criminalization. http://www.europeanonlinegroomingproject.com/media/2076/european-online-grooming-project-final-report.pdf 24 European Online Grooming Project, p. 100 25 On arrest for a Section 15 offence, the groomer will be searched, and if he is found in possession of condoms or lubricating jelly, those items as well as the record of intercepted conversations with the child will be treated as evidence of the intention to go through with sex, and therefore (given the age of the child) sexual assault, in the course of a meeting. 13 Aiming at physical proximity distinguishes fantasy groomers from contact groomers, and some contact groomers can be, in the taxonomy of the European Grooming project, “hyper-sexualized”: The hyper-sexualised group of men were characterised by extensive indecent image collections of children and significant online contact with other sexual offenders or offender groups. Some men in this group also had significant collections of extreme adult pornography. They adopted different identities altogether, or had an identity picture that was not of their face but of their genitals. Their contacts with young people were highly sexualised and escalated very quickly. 26 This is the group that the Section 15 offence seems to fit best, especially if members of that group succeed in arranging a meeting with children who, rather than being “resilient,” are, in the taxonomy of the European Grooming Project, either “vulnerable” or “risk-taking”. Table 3 summarizes the Table 3. Characteristics of Vulnerable and Risk-Taking Victims of Online Grooming characteristics of vulnerable and risk-taking child users of internet.27 Vulnerable users tend to be more isolated and sometimes use childlike chat room avatars. Contact grooming is a process with characteristic stages, and an early stage is scanning the online environment for displays of characteristics associated with either vulnerable or risk-taking children.28 Online groomers are good at identifying children who turn to the internet for a social life and affection that elude them offline. These fit the profile of “vulnerable” children. Groomers will manipulate these children by expressing sympathy and admiration in turn. Risk-taking children, by contrast, will overestimate their ability to control or hold their own in online sexualized conversations, and may experiment with flirtatious behaviour that can attract the hyper-sexualized groomer. Section 15 would be criticizable if (i) it were appropriate only for hyper-sexualized groomers of vulnerable and risk-taking children but (ii) these turned out individually and in combination to make up only an insignificant proportion of actual groomers and victims of sexual assault. In fact, however, Section 15 fits the whole range of contact groomers, and “Hypersexualized” is only one of three classifications used in the European Online Grooming research. Contact groomers belonging to all three types have gone on to have illegal sexual contact with children after grooming them in broadly 26 Ibid. p. 85 27 Ibid. p. 15 28 Ibid. p. 8f 14 similar ways. Besides hypersexualized groomers there are “intimacy-seeking” and “adaptable” groomers. “Intimacy-seeking” groomers29 according to the European Online Grooming project, do not typically collect sexual images of children and have no prior convictions for sexual offences. They described themselves as seeking consenting sexual relationships, rather than one-off encounters. They did not exploit anonymity on the internet and were quite willing to move from online to telephone contact, again being truthful in their offline conversations about their age and identity. Intimacy-seeking groomers, then, tend to share few characteristics with hypersexualized groomers. Between those two extremes lie “adaptable” groomers, men who typically had previous convictions, collected images on a modest scale, and had contacts with other groomers and online offenders. They are closer to hypersexualized offenders than intimacy-seeking ones. Their distinguishing characteristic is an ability to tailor their style of grooming to whatever type of child seems receptive to their online overtures. These groomers, then, can adapt to the different requirements of both “vulnerable” and risk-taking online conversation-partners.30 The sample on which this typology is based was composed of mainly middle-aged make groomers whose conversation partners and eventual victims were 13 to 15 years of age.31 Section 15 seems to cohere well, then, with what the empirical research reveals to be the behaviour of contact groomers. Although there are different typologies of groomers and of the grooming process in this literature, review articles indicate that competing approaches identify many of the same things as salient. For example, grooming consists not only of a scanning or surveillance stage, but of an initial contact and getting-acquainted stage, followed by rapport-building, exchange of confidences, and joint problem solving. After sexual contact takes place there is the process of making the victim compliant in keeping it secret. 32 While online and offline grooming processes have various things in common—they may share the stages of scanning, rapport-building, the exchange of confidences and joint problem solving—they also diverge. Offline grooming seems distinctively to require the cultivation by the groomer of a caring public image. When the groomer does not target his own children or family members, he often befriends the parents of young children and gains access to other children through volunteer work in youth clubs. It is different with internet-based grooming. Online chat rooms allow groomers to bypass parents and dispense with public image-building. When chat room contact is combined with deception about the groomer’s age, it can create the online impression of a romantic approach from another teenager, an illusion that offline grooming would normally exclude. In some respects, then, online grooming can be more deceptive and more insidious than its offline counterpart. Then there is the connection between sexual abuse facilitated online and the production of pornographic records of that abuse, which in a sense immortalize it and can further traumatize the victim.33 Section 15 is not addressed to online grooming alone, but is it appropriately framed for online grooming? I think the answer is ‘Yes’. First of all, it sets an age threshold for the offence. Someone charged under section 15 must be an adult. So sexualized conversation between teenagers under 18 is 29 Ibid. pp. 81ff 30 Ibid. pp. 83ff 31 Ibid. p. 89. For a related taxonomy , see Karen J. Terry & Jennifer Tallon, ‘Child Sexual Abuse: A Review of the Literature’ (The John Jay College Research Team, 2004) http://www.usccb.org/issues-and-action/child-and-youth- protection/upload/child-sexual-abuse-literature-review-john-jay-college-2004.pdf 32 See Whittle, H. C., Hamilton-Giachritsis, C., Beech, A., & Collings, G. (2013). A Review of young people’s vulnerabilities to online grooming, Aggression and Violent Behavior, 18, 62-70, esp. §2.3 33 K Raymond Choo, Online Child Grooming: A Literature Review on the Misuse of Social Networking Sites for Grooming Children for Sexual Offences grooming( Canberra: Australian Institute of Criminology, 2007) p.xii.:( http://www.usccb.org/issues-and-action/child-and-youth-protection/upload/child-sexual-abuse-literature-review-john-jay-college-2004.pdf http://www.usccb.org/issues-and-action/child-and-youth-protection/upload/child-sexual-abuse-literature-review-john-jay-college-2004.pdf 15 excluded, even if one of them is vulnerable or isolated and is in fact being targeted by the other. The central case of an older offender pretending to be the same age as the victim in order to facilitate a meeting is catered for, reflecting the particular hazards of online anonymity and the abilities of offenders to simulate teenage online chat. In the case where the provisions of section 15 are otherwise met but the target of the grooming is in fact a persona created by an undercover police officer, the groomer can be charged with an attempt of a section 15 offence.34 How completely does the section 15 insistence on age difference between the offender and the victim exclude unwanted consequences? Various issues are broached by this question, some having to do with the international reach of section 15, and the variation internationally in the recognized age of consent to sex. Table 4 shows age of consent to sex by country as of 2007. Ignoring changes to those ages that have been decreed since, we can see that an arrangement in 2007 by an English or Welsh person to meet a consenting 13-year old in Spain for sex would have counted as an offence under section 15 once the English or Welsh person had travelled to Spain. This may seem incongruous if an arrangement to meet in Spain, entered into by an English person in Spain after grooming in Spain, would not have been an offence. Another issue arises from setting 18 years as the threshold for adulthood. Conditions for a section 15 offence could be met by travel prompted by a sexualized teenage conversation between someone who was 15 years and 364 days and someone else who was 18 years and one day. Clearly this is not the central case of the deceiving older offender posing as a very young person for the purpose of meeting for sex, and it is a question whether in this kind of case a prosecution would actually be brought, or whether it would be selected for undercover police intervention. On the other hand, in a highly publicized recent case in England, Lewis Daynes sexually assaulted and killed a 14-year old boy whom he had groomed online. Daynes was only 19. The boy’s mother had reported the grooming to the police and had been ignored. Section 15 is not well-designed for this exceptional sort of case; but this is compatible with saying that it is well designed for typical online grooming offences.35 34 http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/#a29 The common grooming tactic of getting the victim to produce a sexualized image of herself (which may later be used for blackmail purposes or posted shared with selected others online) is also catered for in other parts of the Sexual Offences Act. 35 Something like an endorsement of section 15 within a human rights frameworkis provided by Alisdair Gillespie in early commentary on the Sexual offences Act (2003) in Childright : http://www2.essex.ac.uk/clc/hi/childright/article/204/index.html#cR204_2 http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/#a29 16 Table 4. Age of Consent by Country in 2007. Source: Choo, op.cit, p. 49 4. Undercover operations leading to Section 15 prosecutions In many jurisdictions anti-grooming legislation is enforced in sting operations conducted by undercover police. Officers pose as children in chat rooms likely to be used by groomers, and they maintain conversational contact over periods ranging from days to months. There are two kinds of case. Either the undercover officers assume the online identity of children whose grooming has reached the point where a meeting has been proposed; or else police officers impersonate a child with characteristics likely to appeal to a contact groomer. When the groomer responds to the child persona built up by the police, a conversation develops that over time culminates in an invitation to meet from the groomer. Undercover operations often if not always involve deception, and when they are directed against individual paedophiles or paedophile rings, they carry the risks of engaging in other kinds of morally and legally dubious behaviour. For example, to maintain cover, a police officer may have to hold back from intervening in the commission of a crime. When the undercover operation involves active child 17 abuse on the part of a paedophile ring being infiltrated, the broadcast rape of children in real time is sometimes passively witnessed for the sake of collecting evidence and mounting a large-scale prosecution. Are the moral costs of these operations justified by their results, if their results include the destruction of large, international paedophile rings? Arguably, yes. On the other hand, what if an operation is focused on one or two online groomers, and they are in fact fantasy groomers rather than contact groomers? What if undercover operations in this area run the risk of legal entrapment –where offences are committed only with the strong encouragement of police masquerading as children or as willing members of paedophile rings? In considering these questions, it is important to distinguish between operations against paedophile rings, which involve active and frequent sexual assault of children, and operations against uncoordinated online groomers, who may aim at sexual assault, but who may or may not be engaging in any sexual assault at the time they are in contact with undercover officers. Deception and apparent but very short-term collusion by the police may be tolerable if it breaks up a ring of child rapists for good, but how far can officers justifiably cut corners in operations against groomers? In its most general form the question before us is that of whether the harm produced by grooming leading to sexual assault is so severe that undercover preventive policing is justified. The answer to this question could be ‘Yes’, even if particular preventive policing operations are morally and legally defective. The answer does appear to be ‘Yes’. For apart from the harm of rape involved in much sexual abuse, to which at least all contact grooming is intended to lead, there is a wide variety of harms associated with online grooming. These range from depression, sexual dysfunction and drug- dependence to difficulty making friends, uncertainty over one’s gender or sexual preferences and suicidal and other self-harming tendencies.36 When one considers that sexually explicit images of children are often produced during the online grooming process, and that groomers sometimes threaten to post these on the internet or email them to parents and friends if the child does not co- operate, the adverse psychological effects of grooming are not hard to appreciate. Other things being equal, these seem to be serious enough harms to justify preventive measures, even where the preventive measures include deception and secrecy. We can distinguish, nevertheless, between the ethics of assuming the identity of a genuine child who is already being groomed, and developing the persona of a child online to see whether a groomer will make contact and suggest a meeting. In the former case, it is not true that, but for the intervention of the police, the grooming and the arrangement to meet would not have taken place. In the other case this arguably is true. For the persona of the child is wholly manufactured by the undercover officer, and not, as in the case where the police take over the online identity of a child, a matter of replacing a real child who is being urged by the groomer to have sex. It may be true in the case of the wholly manufactured persona that if the groomer had not made contact with that persona he would have made contact with and probably harmed a real child. But this fact, where it is one, does not absolve the undercover officer of a much more active role in the cultivation of the groomer’s interest than in the case where the officer merely continues online contact already established entirely independently of police deception. The more actively the undercover officer is involved in the creation of a kind of persona likely to appeal to a sex offender, the more active the undercover officer is in the process that is causally responsible for the invitation to meet. I am not suggesting that none of the causation comes from the offender, but more comes from the offender when all the police officer does is continue a 36 Choo, p.39, summarizing Melissa Wells & Kimberly J Mitchell ‘Youth Sexual Exploitation on the Internet: DSM-IV Diagnoses and Gender Differences in Co-occurring Mental Health Issues’, Child and Adolescent Social Work Journal, Vol. 24, No. 3, June 2007, pp.235-60, http://www.unh.edu/ccrc/pdf/CV128.pdf http://www.unh.edu/ccrc/pdf/CV128.pdf 18 conversation that has probably gone on for weeks, that the groomer is in control of, and that has been skilfully steered in the direction of sex. The problems in the case of the wholly manufactured child persona are magnified if one accepts the distinction between fantasy and contact groomers, and if one accepts that fantasy and contact groomers can both find sexualized conversation and even the fantasy of meeting for sex highly gratifying. This means that the suggestion of meeting could come from either kind of offender, and that even a fantasy offender could be convicted in a jurisdiction in which the suggestion of a meeting, without steps taken to meet the offender, could suffice for an offence. Section 15, as already pointed out, is well framed for weeding out fantasy groomers, but other anti-grooming offences in other jurisdictions are not, and these may produce injustice when combined with sting operations that succeed when the evidence of an intention to meet and have sex does not include travel to a meeting.37 So far I have been suggesting that, other things being equal, operations that continue contact with a groomer are morally more acceptable than operations in which contact is initiated by the undercover officer. This position does not imply that operations against groomers in which children are never involved are never justified. Since groomers often cultivate several potential targets simultaneously, it can prevent harm to real children if one of the targets of the grooming is in fact a police officer. Again, a sting operation in which a groomer targets an undercover officer can lead to the discovery that a repeat offender is offending again, or that he is violating his parole or other court-ordered restrictions. In this sort of case the benefits of the sting operation extend beyond protecting children to acting as a check on compliance with bail or parole conditions. If the groomers are repeat-offenders, then, since many offenders are involved in online exchange of child pornography, which can in turn be produced and distributed by full-scale paedophile rings, the anti-grooming undercover operation can actually lead to an operation that prevents much worse harm than grooming much more quickly than in the absence of an undercover operation. In short, because of the interconnections between grooming offences, offences consisting of making and distributing images, and organized sexual assault, even deceptive sting operations which manufacture a child persona attractive to groomers may be amply justified by the harm they prevent or help to prevent. There is a risk of legal entrapment of a groomer if the online conversation produced by a sting operation seems to offer a special incentive to the groomer to propose a meeting. An operation is more likely to produce a successful prosecution if the idea of meeting comes from the groomer, once the age of the “child” in the sting operation has been established, and the sexualization of the conversation has been initiated by the groomer. Many online conversations with groomers actually follow this pattern. Could there be circumstances, however, in which entrapment was morally necessary, notwithstanding the resulting failure of a prosecution? The answer seems to me to be ‘Yes’. Here we can imagine a sting operation that has revealed that the groomer is a repeat offender who has been convicted of a series of serious sexual assaults. We can imagine that he is also forensically aware, and that he has already raised several times with the “child” he is grooming the point that he is concerned that either the child’s parents or the police will find out 37 Can even someone who travels to a meeting disown the intention to meet for sex? In filmed confrontations of groomers who turn up at a meeting place, undercover police are sometimes told that the groomer was only coming to warn the child of the dangers of internet relationships. schttps://www.youtube.com/watch?v=VrhEZBl0qrQ; https://www.youtube.com/watch?v=YAS6XOsEd0s These claims are unconvincing on camera, but have succeed in at least one US court case. See Choo, op.cit.p.31 https://www.youtube.com/watch?v=VrhEZBl0qrQ https://www.youtube.com/watch?v=YAS6XOsEd0s 19 about their proposed meeting. Suppose he proposes a meeting place in which there are many escape routes, and which would make an arrest difficult. In such a case, for the sake of a more certain arrest, and the likelihood of disrupting his grooming, it might be justifiable for him to be given a special reason to go to a location where arrest is easier for the police, notwithstanding the grounds the defence at trial might have for excluding some evidence. A related case is where some of the evidence that the police uses to arrest a groomer comes from an internet vigilante group that makes contact with a groomer without the knowledge or co-operation of the police. The internet group would not have received the legal authorizations that a comparable police operation would have depended upon, creating grounds for the exclusion of evidence at trial in England and Wales. In cases like these the moral case for disruption may be stronger than the moral case for meeting the legal requirements of a successful prosecution under Section 15.38 5. Conclusion Section 15 of the Sexual Offences Act (2003) seems to survive general objections to preparatory offences in general brought by critics like Ashworth and Zedner. This is partly because the online grooming process often involves significant harm in its own right, including coerced production of sexualized images and blackmail involving the threat of publicizing those images to force the production of more. Harm is not only in the offing when the groomer is in a position to commit a Part One sexual assault. Again, Section 15 justifiably focuses on meeting after grooming rather than sexualized conversation as the trigger for arrest and prosecution. Offences that gear arrest only to evidence of online sexualized conversation between children and older groomers would probably lump together fantasy with contact groomers. Many moral risks attend undercover operations in which the police manufacture a child persona rather than assume the identity of a child that has been subject to grooming. But these risks may often justifiably be run in view of the dangers posed by hypersexualized groomers and the online grooming process itself. 38 I am grateful to Chris Nathan and Jethro Butler for comments on earlier drafts of this paper. Research for this paper was funded by the ESRC project “Assuming Identities Online (Project No.ES/L003279/1). 
work_xotlbahz55czxjz4l3ghzmldfe	----	Hume: Justice as Property Copyright © Canadian Society for Eighteenth-Century Studies / Société canadienne d'étude du dix-huitième siècle, 1987 Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 22:20 Man and Nature L'homme et la nature Hume: Justice as Property Nathan Brett Volume 6, 1987 URI : https://id.erudit.org/iderudit/1011870ar DOI : https://doi.org/10.7202/1011870ar Aller au sommaire du numéro Éditeur(s) Canadian Society for Eighteenth-Century Studies / Société canadienne d'étude du dix-huitième siècle ISSN 0824-3298 (imprimé) 1927-8810 (numérique) Découvrir la revue Citer cet article Brett, N. (1987). Hume: Justice as Property. Man and Nature / L'homme et la nature, 6, 55–72. https://doi.org/10.7202/1011870ar https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/man/ https://id.erudit.org/iderudit/1011870ar https://doi.org/10.7202/1011870ar https://www.erudit.org/fr/revues/man/1987-v6-man0239/ https://www.erudit.org/fr/revues/man/ HUME: JUSTICE AS PROPERTY Though what Hume calls justice is an artificial virtue, justice properly so called is not. J. Harrison, Hume's Theory of Justice1 In the Treatise H u m e claims to show that justice is an artificial vir- tue. Rawls clearly thinks that H u m e has made a contribution to the analysis of justice; he claims thai H u m e ' s account of the circumstances of justice is superior to his own.2 But I (like Harrison in the quote above) have never been quite sure that H u m e managed to say a w o r d about the subject. The relevant sections of the Treatise3 and the Enquiry4 are primarily discussions of property, which is given a basis in conven- tion, rather than status as a natural right. These chapters contain, as well, discussions of promise keeping, chastity, and modesty, which are also argued to be intelligible only by reference to underlying con- ventions which we have collectively invented and collectively sustain. These arguments are interesting; but, again, what do these virtues have to do with justice? Is promiscuity a form of injustice? I will argue (in passing) that these virtues are connected with justice in Hume's account because they are connected with property. But the primary task of this paper is to articulate the connections between justice and property that Hume's account presupposes. After consider- ing the view of both Locke and H u m e that this is a logical connection, I proceed to defend two claims. (1) O n H u m e ' s account, property ex- MAN AND NATURE / L'HOMME ET LA NATURE V l / 1 9 8 7 0824-3298/87/0600-OO55 $1.25/®C.S.E.C.S./S.C.E.D.S. 56 ists where things are distributed by reference to moral attitudes which have a basis in convention. These conventions provide the criteria in terms of which we determine whether a transaction is just. Apart from their instrumental value, there is no foundation for the rational criti- cism of these conventions themselves. Thus, as long as these conven- tions work to produce stability, following the rules of property is being just. (2) This conclusion seems unpalatable because we suppose that property rules can themselves be criticized utilizing the concept of justice. What has not been generally perceived, however, is that the H u m e a n conventions which are constitutive of property have impar- tiality and reciprocity built into them. It is this that allows H u m e to capture much of what we ordinarily mean by justice. I Humean Property: In both the Treatise and Enquiry we find H u m e com- paring divisions and transfers of property with superstitious be- haviour.5 Compare any two objects such that one is your property, the other is not. How do they differ? In their physical properties they need not differ at all. I need not be in physical possession of what is mine. No physical characteristic and no relational property "discover- able to the senses" is a basis of distinctions of property. Yet the world is largely divided into "touchable" and "untouchable" objects; invisi- ble barriers keep us out and off and away from most of the things in our respective worlds. We are so accustomed to this, of course, that its mysteriousness goes unnoticed most of the time. H u m e directs us to the resemblance between property and the objects of religious taboos: A fowl on Thursday is lawful food, on Friday abominable: Eggs in this house and in this diocese, are permitted during Lent; a hundred paces farther, to eat them is a damnable sin. (£, p. 198) I may lawfully nourish myself from this tree; be fruit of another of the same species, ten paces off, it is criminal for me to touch. (£, p. 199) When we think about property transactions in the abstract they seem equally mysterious: Had I worn this apparel an hour ago I would have merited the severest 57 punishment; but a man, by pronouncing a few magical syllables, has now rendered it fit for my use and service. (£, p. 199) What is the difference between things and property, or between property and "possessions," to use one of H u m e ' s ways of marking the distinction? The property of an object, when taken for something real, without any refer- ence to morality, or to the sentiments of the mind, is a quality perfectly in- sensible and even inconceivable; nor can we form any notion of either its stability or [transfer] translation. (T, p. 515) Hume's claim in this section is that the difference between possessions and property is the difference between things which are physically within my control and those that are "morally" (or legally) within my control. The point, in H u m e a n terms, is that the difference between mere objects and property is a difference in "sentiment," a difference in attitude toward a particular person's use (etc.) of that thing. But, this is also what distinguishes between objects considered in themselves from the same things as the objects of taboo or superstition. No descrip- tion of the properties of these objects can provide an understanding of our attitudes. To do this we must interpose conventions. Thus, property distinctions are products of artifice, and conformity to these conventions is an "artificial" virtue, radically unlike such "natural vir- tues" as compassion. The difference between the conventions or rules generating super- stition and those generating property, according to H u m e , lies entire- ly in their respective utilities. The former is "frivolous, useless, and burdensome; the latter is absolutely requisite to the well-being of mankind and society" (£, p . 199). Though this is not a sufficient ac- count of the difference between property and superstition, of course, it accounts for the difference in their value. Uselessness makes it a vice to be superstitious. Utility makes it a virtue to adhere to the rules of property. By the end of the first part of Book III of the Treatise H u m e believes he has established that moral distinctions are not based on reason. Rea- son of course has a role in the discovery of means to e n d s and in the discernment of factual differences between the objects of evaluation, but reason itself is indifferent to the various options which may be open to us, whereas moral or any other evaluative distinctions cannot be matters of indifference. H u m e takes the central problem regarding moral distinctions we utilize to be an explanatory one. We must ask 58 "Why any action or sentiment upon the general view or survey gives a certain satisfaction or uneasiness?" (T, p . 475). Here H u m e is attempting to stick to the empirical method to which both he and Locke were committed, and which Locke largely abandoned w h e n he turned his attention to the moral and political realm. It will not do, given H u m e ' s method, to build one's account of morality (or of the justification of government) on natural rights or laws. We do not discover our rights or obligations as sensible properties or relations of things and persons. What we do discover, on reflection, are certain attitudes that we have; and the com- parison of these may allow us to discern some general principles that shape our evaluations. Vice and virtue, good and bad action are in- separable from that which gives a "certain satisfaction or uneasiness". To understand our morality is to u n d e r s t a n d w h y contemplation of (or witnessing) various actions gives rise to the feelings (of pleasure and pain) through which these distinctions are made. Hume's pursuit of the question of why actions and character traits affect us as they do leads him to the division between natural and ar- tificial virtues. Some of our moral values d e p e n d u p o n basic h u m a n responses which we can notice in ourselves but which we cannot fur- ther explain. We do in fact (generally) squirm with "uneasiness" at the sight of another in great distress; correspondingly, we naturally ap- prove of benevolent acts aimed at the relief of such distress (other things being equal). If we had no such (sympathetic) response to distress, the acts aimed at its relief would be a matter of indifference. H u m e spends a good deal of time illustrating the ways in which sympathy operates (the way in which an idea of pain in another becomes an im- pression of pain in oneself, for example). He does not attempt to ex- plain why we react sympathetically. This he takes to be one of the basic, general principles of h u m a n nature on which he relies in accounting for other moral p h e n o m e n a . Now, we have seen already that our attitude toward possessions is not subject to any account similar to our attitude toward the relief of suffering, not subject to an account based directly u p o n dispositions which are natural to us as h u m a n beings.6 In fact, our sympathy will often lead us to have moral qualms about the ways in which posses- sions are divided among h u m a n beings — w h e n we notice, for exam- ple, that there is no correlation between h u m a n needs and the possessions necessary to satisfy these needs, w h e n we see a judge restoring goods to a miser or to some "profligate debauchee" (T, p . 482). Taken individually, the attitudes which are constitutive of property can be in direct conflict not only with self-interest, but also with the extended interest that we take in other persons. Nonethe- 59 less, we should not suppose that property has nothing to do with self- interest, or that the attitudes toward possession which it involves are not moral ones. We need to know what things to rely u p o n in satisfy- ing our needs; and we generally believe that there is something morally wrong with theft. Since there is no "natural" correlation between per- sons and things, we have had to invent ways of dividing things u p in the process of interacting with each other. There is no property except where persons interact with each other in uniform ways. There is no property apart from the sentiments through which we collectively endorse these patterns of interaction. Even the fact that a person has through his or her labour modified some material to create something useful cannot by itself yield any "natural right " to property in the object (as Locke had claimed).7 To make some- thing is to cause changes in the physical properties of an object; and this alone cannot bring about any moral change in the relation between person and object. To infer that it does is clearly an attempt to derive an 'ought' from an 'is.'8 Of course, there may be excellent reasons to adopt this convention regarding acquisition - - i . e . , it may be a useful and stabilizing pattern of interaction. But so too are there good rea- sons for treating valueless pieces of paper as if they were precious, in conducting transactions with each other. Each of these is artificial in the sense that the values involved cannot be understood in terms of any direct connection between the interests and needs (and hence sentiments) of persons and the values which objects have in satisfy- ing those interests. II Virtue and Justice: The whole of the discussion of Part II falls u n d e r the heading of justice, which H u m e claims to prove an artificial vir- tue. The previous section of this paper was designed to indicate what significance that has. The "uneasiness" that is felt in contemplating taking someone's property is, in its origin, quite unlike that which we feel w h e n we contemplate his or her bodily harm. Our attitude would be just like a superstitious response to an object of taboo, if it were not for the utility of the co-ordinated behaviour that (generally) fol- lows from this attitude. This behaviour manifests the artificial virtue of justice. A. Non-sequitur: But here one might accuse Hume of a non-sequitur. How did we get from the artificiality of property distinctions to the 60 artificiality of justice? Should we simply assume that questions of justice pertain wholly or primarily to property? When I compare my own in- tuitions about justice with Hume's I find myself baffled. I would not have supposed that there is any necessary connection between follow- ing property conventions and behaving justly. We may judge that theft is wrong; but whether it is unjust appears to be a separable issue. We can even imagine conditions in which justice is re-established by steal- ing. That justice is simply a matter of following rules and in that sense giving to each person what is owed, is a view disposed of by Plato's Socrates with one counter-example.9 But Hume, who was familiar enough with Plato,10 works with the assumption that justice is the vir- tue of following rules of possession - as if this were too obvious to require either proof or comment. Actually, the long chapter on "justice and injustice" does not deal entirely with virtue connected with property. There are also discus- sions of promises, fidelity, and chastity. But here I find my intuitions concerning justice (or 'justice', at least) even more strained. Breaking one's promises might be a matter of doing injustice, just as stealing could be. But this need not be the case. It may well be wrong to break one's promise to meet a friend for lunch; but it is not obviously unjust. On the other hand, that either infidelity or being unchaste is a "kind of injustice" (T, p. 572) is a thought that would never have occurred to me. It would probably not have occurred to Hume if he were not looking at the matter through the eyes of his theory. Had a student written that prostitutes were being "unjust" in practicing their trade, I would have scribbled "wrong word" without a second thought. Should we suppose that English has changed since the time of Hu- me's writing? The (longer) Oxford English Dictionary yields no evi- dence in support of this. Thus, the virtues which Hume takes up that are not (or not obviously, see below) connected with property, seem to take us even further from the subject. We have no reason as yet, then, for dropping the charge that it is a non-sequitur for Hume to claim that he has shown justice to be an artificial virtue. B. Begging the Question: One might wonder if Hume is tacitly us- ing the term 'justice' in a way that confines it to those values which can only be understood as attitudes shaped by convention. It is this that is claimed as the common denominator of those virtues that are taken up in the chapter on justice and injustice. It is this basis in con- vention that makes it impossible to understand these virtues as natur- al responses, and hence makes them artificial virtues. But, of course, this is a most uncharitable interpretation of Hume's way of delimiting the scope of judgements of justice and injustice, since it completely 61 undermines the major argument of this part of his discussion in the Treatise. H u m e purports to be arguing that justice is an artificial virtue. Virtues are artificial when they cannot be understood directly in terms of attitudes which are natural to us as h u m a n beings, that is, where they can only be understood w h e n our sentiments are taken to be shaped by convention. But if he is using 'justice' in such a way that it designates only those values which have a conventional basis, he is exploring a tautology that his own usage has created. C. Property, Promises and Promiscuity: I do not think it is possible to completely extricate Hume from either the complaint of non-sequitur or circularity. It is clear, however, that there is a greater degree of con- tinuity to the discussion of justice than is revealed by simply listing the topics that H u m e takes u p . It appears, in particular, that all of the discussion does revolve around what Hume takes to be property, provid- ed at least that we take property relations in an extended sense. (i) Hume's central belief in these discussions is that it is "absolutely necessary" for co-operative social existence that there be divisions be- tween "mine" and "yours." The discussion of promises is not separa- ble from Hume's general theory of property. The subject arises pursuant to the problem of how order is to be maintained in the trans- fer of possessions. Co-operation requires that there be some device through which orderly transfers can sometimes be made, and by me- ans of which we can co-operate in the exchange of labour. Hence, the account is extended to accommodate the problem of exchange of labour. Hume's account revolves around the need to create and maintain a climate of stable expectations, one in which individuals can know who and what they can rely u p o n in satisfying their needs and (other) in- terests. This problem is solved by persons entering into contractual agreements. But contracting and promising cannot themselves be the product of any explicit agreements, for this would presuppose what is to be explained. Thus H u m e has recourse to the idea of an unex- pressed convention in his account of the expressed agreements through which property and labour are exchanged. (ii) The virtues of chastity and modesty also concern the division of property. Just as it is necessary to "partition" external objects to avoid useless and destructive forms of interaction, so it is necessary in Hume's view to divide persons into those which are mine and not mine: my wife, your husband, and, in particular, his child. There is no hope of understanding the virtues of modesty, chastity, or fidelity simply as natural responses. To take one example, w h y should intimacies toward two persons w h o appear to be equal in sexual attractiveness be subject to opposite attitudes? The one is "mine", the other is not. 62 The actual social world is one that makes property out of persons. Here, as elsewhere, this conventional relation among persons connects with a natural one. Parents are naturally disposed to provide for the chil- dren which they cause to exist; but conventions governing sexual be- haviour by forbidding promiscuity and making virtues of modesty, chastity, and fidelity are necessary in order that male parents estab- lish what children are theirs. The conventions that H u m e discerns and defends in relation to this epistemic need (knowing who fathered whom) have made him the ob- ject of various egalitarian critiques, notably those of feminists. Most notorious is Hume's contention that fidelity and chastity are of far great- er importance in women than in men (because of the difference in ease with which maternity and paternity are established). Now, obviously there are assumptions in Hume's treatment of this subject that deserve examination and criticism; but that is a task separate from my own and one that has been undertaken quite successfully elsewhere.11 What I want to draw attention to in Hume's account is this: We have seen already that Hume's theory of property makes room for conflict be- tween the attitudes which are constitutive of our property and those which are products of sympathy, of our capacity to experience the world as if we were another person. Thus, we would be led to expect, given Hume's account, that we will have moral attitudes related to and supportive of the conventions through which we divide persons into property. But, we should anticipate as well that we will have moral reservations about this system, just as we have regarding the general rules through which we allocate needed commodities. Ill The Ideas of Property and justice: The supposed connection between justice and following these general rules of property is not directly ex- amined by H u m e . He appears to have held that this is a logical rela- tion. This was also Locke's view, though its significance in Locke's moral and political theory is dramatically different. In a passage of the Essay where he is illustrating the sort of reasoning that yields demon- strative certainty Locke says "Where there is no property there is no in]ustice" is a proposition as certain as any in Euclid: for the idea of property being a right to anything, and the idea to which the name injustice is given being the invasion or violation of that 63 right, it is evident that... I can as certainly know this proposition to be true as that a triangle has three angles equal to two right ones. (Essay, IV,iii,18) This example is one that H u m e repeats almost exactly in the Enquiry (Book I) though his intention is to mark this as merely a truth about words, quite unlike the sort of demonstrative knowledge available in mathematics. That the square of the hypotenuse is equal to the square of the two other sides, can- not be known, let the terms be ever so exactly defined, without a train of reasoning and enquiry. But to convince us that where there is no property there can be no injustice, it is only necessary to define the terms and explain in- justice to be a violation of property. This proposition is, indeed, nothing but a more imperfect definition (E, p. 131). There is an interesting puzzle here. When Locke actually turned to the discussion of property (in his Second Treatise) h e made no attempt to construct the Euclidian system of truths which he points to here. In fact, the concepts of justice play no important role in his discussion of natural rights and property. H u m e , on the other h a n d , w h o claims that the connection between justice and property to be merely a mat- ter of words ("it is only necessary to define the terms") makes a great deal of his discussion of justice depend u p o n this supposed logical con- nection between 'justice' and 'property'. Moreover, H u m e does not fol- low Locke in allowing the concept of property to expand to cover a wide range of normative relations. He does not introduce, for exam- ple, Locke's central conception that individuals have property in their o w n persons.1 2 The theoretical disagreement between H u m e and Locke regarding property is so profound that much of H u m e ' s discussion of the sub- ject can usefully be read as an attack on Locke's central views. For Locke, the all encompassing right to property is a natural one; H u m e ' s more restricted conception makes property entirely artificial.13 Locke's property is ultimately g ro u n d e d on the authority of God and the rela- tion between God and the individual h u m a n being; H u m e , as we have seen, makes a comparison between property distinctions and religious taboos; but far from finding a foundation here, H u m e writes this aspect off as "superstition". Locke took his primary task to be that of show- ing how we arrived at private ownership from a condition in which all things are held in common, without any appeal to an agreement "among the commoners." H u m e , on the other h a n d , sees convention, 64 and hence (tacit) agreement among interacting persons as precisely what is generative of property relations. Perhaps the most significant contrast, however, can be gleaned from what may seem to be a trivial difference between the above quotations from Locke and H u m e . Whereas Locke commits himself to the view that injustice is always "an invasion or violation of right", H u m e speaks simply of a "violation of property" and makes no mention of rights in characterizing the connection between justice and property. Locke commits himself to the following argument: (a) the idea of property is the idea of "a right to anything/' (b) the idea of injustice is the idea of the "invasion or violation of a right." (c) Therefore, if there were no property there could be no rights and without rights there could be no injustice. Here we are given the primary claims which we would have to con- sider in a critical examination of the Lockean account. One could ar- gue that this account of rights is too restrictive, that there are rights (e.g., to life or to some level of welfare) which cannot be construed as property rights. Again, one could argue that there are forms of in- justice which do not involve violations of rights (e.g. where a parent gives radically unequal gifts to equally well behaved children). But the argument as a whole does not exist in Hume's account because he finds no room for its middle term, for the premise concerning rights.14 Hume, as we have seen, can find no basis for the idea of a natural right. He only utilizes the term 'right' in a way that connects with express or tacit rules (or conventions) which govern the interaction of persons. Nonetheless, he accepts the Lockean conclusion that property and justice are logically related. It is obvious, however, that neither Locke nor H u m e is simply reporting a connection between the terms 'property' and 'justice' which was embedded in the ordinary language of their time.1 5 Both are in fact elaborating conceptual connections which reflect and d e p e n d u p o n aspects of their respective normative theories. H u m e cannot rely u p o n the conception of a basic natural right in linking justice with property. We must therefore ask what premises in Hume's account do generate this connection. It is to this specula- tive task that I n o w turn. 65 IV Justice as Property: Taking Hume's "imperfect" definition to be at least partly stipulative, then, I want to ask what philosophical motivation he has in linking questions of justice and questions of property. There are two sorts of connection that I shall briefly consider. The first works from the very general claim that justice is a virtue of distributions; the second explores a type of reciprocity which is built into Hume's con- cept of convention. A. Distributive Value: Let's suppose that, despite the problems dis- covered in our initial review of Hume's examples of justice, his con- ception of justice is not far different from our own, or from that which Rawls attempted to explicate in this century. Justice is a value (or vir- tue) that pertains to the allocation, or distribution of things which are themselves valued (either positively or negatively).16 Let me attempt an outline of Hume's account based on this assumption: 1) Questions of justice concern the value of allocations, of the distribution of what is itself of value. (For simplicity I will omit consideration of bur- dens, services, and persons here.) 2) In any society the system of institution of property is that which supplies answers to the primary questions of allocation or distribution of that which is separately valued. 3) Property is not a descriptive but a "moral" concept; that is persons inter- acting under a system of property are maintaining the separation (and ord- erly transfer) of possessions through a shared set of attitudes. It is only because they mutually value a certain way of allocating things that property exists. 4) Thus, for Hume, property, which is a "moral" (a normative) concept is, like justice, the idea of a valued distribution, or, in his words, "partition" of goods. Before continuing, let me comment briefly on this conclusion. We are likely to balk at the identification of justice with property because systems of property can themselves be assessed as either just or un- just. This, of course, was one of my primary reasons for doubting that H u m e had proved anything about the artificiality of justice in show- ing that property is based on convention. Any conceptual analysis which entails that whatever system of property we have is necessarily 66 just appears perverse, appears to require that we beg the most impor- tant questions of justice. We must keep these doubts in mind. Ultimately, we may want to reject the Humean principles that lead him to this identification. But it is important not to lose sight of the feature of property that Hume has discerned here. Property is not simply the stuff of the world that meets certain needs. Conceiving of anything as property is thinking about it as "partitioned" by our shared values. As we have seen, property has no "objective" existence apart from the "impressions of satisfaction and uneasiness" that constitute our values. Thus, if we raise the question of the justice of property relations themselves, we raise the second order question of what attitude to take toward the moral attitudes which are constitutive of property. Let's consider this from Hume's point of view. Reflective assessment of one's values is a matter of considering their rationality or examining them in relation to the "calm passions." (i) Moral distinctions, Hume has argued, are not based on reason; nor are they subject to rational criticism. But this way of putting the mat- ter is misleading. Wherever something is valued as a means our atti- tude toward it depends upon a factual claim which it may or may not be rational to believe. It is on this basis that some conventions are re- jected as "superstition." (ii) Moral distinctions are based on sentiments which we express to one another. Through a process that allows us to achieve agreement in attitude by omitting from consideration the particulars of our situation, we may subject our values to a further type of assessment. (See T, p. 603.) On Hume's view, neither of these types of assessment will lead us to reject the conventions through which we (successfully) partition possessions. Thus, 5) No distribution of goods is inherently more rational than any other. 6) Our natural sentiments (including those produced by sympathy) do not generate agreement regarding the allocation of goods. But calm reflection on the matter leads us to endorse the conventions which permit us to reach agreement. 7) These conventions can only be assessed instrumentally, in terms of their ability to produce the co-operation which h u m a n existence requires. Some systems of allocation are better suited than others to serve our need to co- operate. On Hume's view there is no a priori answer to the question of how 67 things ought to be allocated. If it is no more rational (where reason is separated from the passions) to prefer the pricking of one's little finger to the destruction of the whole world than vice versa, it is also no more rational to prefer, say, an equal distribution of goods to the assignment of everything to one person. But this says only that rea- son, considered independently of our interests, cannot discover or select among our ends. Given certain interests, some courses of action (or patterns of restraint) are more rational than others because they are means to the satisfaction of these interests. In this sense, justice is a product of rationality, for we have discovered the need to co-operate in order to achieve what we desire, and we have discovered the need for stability of possession if we are to co-operate. Conventions regarding the allocation of goods can be assessed in terms of their contribution to this (intermediate) goal of co-operation. H u m e does just this. He considers the proposals that we should agree on an equal distribution, that distribution should be based on need, and that merit ("extensive virtue") be the criterion in terms of which goods are distributed. Each of these is dismissed (too quickly perhaps) on grounds that it will fail to produce the stability of possession which co-operation d e p e n d s upon. 1 7 I find myself repelled by this treatment of justice as a merely in- strumental value; but at the same time I find myself captivated by Hu- me's skepticism. Particular patterns of distribution seem inherently unjust and subject to criticism not based on the results which they produce in the long r u n for those w h o are subject to them. But, most of us are aware not only of the possibility of producing whole systems based on allocation by need, or by reference to effort, or by appeal to equality. We are also aware of the difficulty of showing that one of these systems is rationally superior to the other. Most of us are aware as well of the way in which the standards of need, merit, and equality can be brought into conflict with each other in particular decisions regarding the allocation of, for example, jobs or positions in medical schools. Few could be confident, u p o n reflection, that there is always a rationally superior resolution of such dilemmas. Perhaps no one should be confident. In H u m e we find a sustained attempt to accom- modate this inability to base justice on rationality itself. The upshot is that we do not have any basis for the critical appraisal of the institu- tions through which allocations are made ~ other than the ability of those institutions to provide a stable basis for co-operation. H u m e ' s collapse of questions of justice into questions of property can be taken as a manifestation of his principled skepticism about the possibility of 68 a rational critique of those conventions through which successful allo- cations are made. B. Convention and Reciprocity: So far I have tried to illuminate Hu- me's virtual identification of questions of justice with those of property by characterizing justice as a value relating to distribution of things and property as things allocated or "partitioned" by a shared set of values. I have deliberately ignored the ways in which property is a creature of law, the ways in which these shared values come to be reflected in (and shaped by) statutes and precedents. This I have done because Hume is not among the theorists who regard property as origi- nally generated by law. He would have found this thesis as plausible as we would find the hypothesis that natural languages were brought into existence by ancient grammarians. Legislators (and judges) artic- ulate and give prudential force to conventions that already are opera- tive in a community. They also make changes in the system of conventions that they discover, when, for example, it turns out that existing rules are insufficient to settle a dispute over possession.18 (In this respect, too, there is an analogy with grammarians, who have also played a role in the evolution of the natural languages that they study.) On Hume's view, the conventions which generate property are one of the conditions necessary for the development of law. I shall end by considering how these conventions may themselves be related to justice. Something - quite a bit in fact ~ is missing from the account of justice in terms of a valued distribution of goods. Even if we are ultimately forced to concede that there is no entirely rational basis for selecting among patterns or criteria of distribution, some systems (such as that of Apartheid) remain repugnant to our sense of justice because they do not treat persons impartially. If Hume's treatment of justice makes no connection with impartiality, I think it really would not be an ac- count of "justice properly so called." But it is clear that Hume takes impartiality to be a part of the concepts of justice and property that he has discovered to be underwritten by convention.19 This is partly because the virtue of justice that he has articulated is a disposition to stick to rules in the face of one's inclinations or sympathies, and even in the face of conflicting utilities. There is a sense in which persons are being treated impartially when general rules are followed, rather than being bent to accommodate such particular factors as these. But it is notorious that formalism, or impartiality in the application of rules, is not sufficient for justice. The most hideously unjust rules of a South Africa can be applied without exceptions which accommo- date bias, sympathy, or utility — and without justice. Obviously this 69 is true. But the question which we must face here is whether the type of convention which is the foundation of H u m e ' s account is subject to the same complaint. Consider the famous passage where H u m e illustrates what he me- ans by a convention using the example of the co-operative effort of two persons manning oars on either side of a rowboat.2 0 Two men, who pull the oars of a boat do so by an agreement or conven- tion, though they have never given promises to each other. The actions of each ... have a reference to those of the other, and are per- formed on the supposition, that something is to be performed on the part of the other. [Similarly,] I observe that it will be in my interest to leave another in pos- session of his goods, provided he will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. (T, p. 490; second italics mine). What H u m e claims to be illustrating in these passages is the type of activity through which individuals "from their early education in society" (T, 489) acquire the conventional forms of interaction which are the basis of the "ideas of justice and injustice" (T, p.490). The con- ventions H u m e is analyzing here are not articulated rules or agree- ments. It is through their actions that the individuals in the boat (and in the society of which it is an analogue) "express to one another" ... "a sense of common interest." Each is "expressing" a co-operative in- terest through the very act that accomplishes a shared purpose. It is important that the action of each agent be taken as an example to the others: "every single act is performed in the expectation that others are to perform the like" (T, p . 498). According to H u m e the co- ordination of possessions in society begins (historically, and in the de- velopment of the individual person) as a similarly informal process of interaction. If one of the oarsmen fails to act in conformity with the other neither will get where he wants to be. If one person attempts to take what another has in his (physical) possession h e cannot expect to rely on the items within his o w n possession. It is from this imita- tive form of co-ordination that individuals acquire a sense of justice. The conventions embedded in their interactions are the prototypes from which the more sophisticated conceptions of justice and equity arise as systems of positive law are developed. Now, while there is plenty of room for partiality and hence injustice 70 in even a strict application of official, articulated rules, it is far from obvious that this is possible in relation to the tacit conventions which Hume has described. The actions of each participant serve partly as examples to the other participants. They co-operate in this type of con- ventional behaviour by imitating each other, and reinforce this co- operation by achieving a purpose not otherwise attainable. The reciprocity which is a necessary feature of such a co-ordination of ac- tivity excludes the type of injustice that can be embodied in explicit rules. In fact, the sense of justice which emerges from these initial con- ventions can serve as a basis for assessing the justice of positive laws of property. A final comment: We can imagine the oarsmen in Hume's analogy to be rowing a lifeboat away from others, whose lack of strength or the good fortune to have been situated near a boat leaves them out of any co-operative network. Should we not say that, at least where it would not be futile, the failure to co-operate would itself be a form of injustice. This type of problem did not escape Hume's notice.21 But he bites this bullet. The exclusion of those who are powerless shows a failure of humanity but not of justice. My own view is that Hume could extend his view to account for the supposition that the exclu- sion of the powerless is itself unjust. But I shall not take up that ques- tion here. NATHAN BRETT Dalhousie University NOTES 1. J. Harrison, Hume's Theory of Justice, (Oxford, 1981) p . 30. 2. J. Rawls, A Theory of Justice, (Harvard, 1971) p p . 127-8. 3. H u m e , A Treatise of Human Nature (Selby-Bigge éd., 1888) Bk. Ill, Pt. II. 4. Hume, Enquiries Concerning The Human Understanding and The Principles of Morals (Selby-Bigge éd., 1902) Section III, and Appendix III. Henceforth, I shall use T and E to refer to these editions of the Treatise and Enquiries. 5. T, p p . 515; £, p p . 197-99. 6. A difficulty could be raised here. Given what we now generally believe about the territoriality of various animals, do we have evidence that property 71 distinctions are a natural, instinctual, response to objects in our environ- ment? H u m e could admit that there is a natural tendency to establish property (or property-like) distinctions while holding that these distinctions are themselves artificial in the sense that they have a basis in convention. Further, he could argue that animals, too, establish conventional relation- ships between themselves and objects. H u m e did not endorse the sharp divi- sion between animals and h u m a n beings characteristic of his predecessors (including Locke). When it turns out that on his account animals could en- gage in causal reasoning, H u m e embraces this as further evidence that his view of causation is correct. A similar point can be m a d e regarding the ana- lyses of pride and humility (T, p p . 324-8), and of malice, envy, and sympa- thy (T. p . 395-97) — all of which H u m e claims to discover in rudimentary forms in n o n - h u m a n animals. He does say in passing that animals are "in- capable of right and property" (T, p . 396); but if territorial behaviour and (hence attitudes) proved to be comparable to our attitudes toward property, there is no reason w h y he should not revise this view. Conventions govern- ing property are not initially explicit, so property distinctions cannot be de- nied to animals on the basis of their supposed lack of language. 7. Locke, The Second Treatise of Government, Ch. V, especially S. 27. H u m e ' s criticisms of Locke's theory of acquisition are contained in the footnote at T, p p . 505-6. 8. "[TJhere is first a natural union between the idea of a person and that of the object and afterwards a new and moral union produced by that right or property, which we ascribe to the p e r s o n " (T, 510n). 9. The example of the m a d m a n w h o requests the return of a knife previously borrowed from him (in Bk. I of The Republic). 10. See, e.g., £, p . l 8 9 n . 11. See L. M. Lacoste, "The Consistency of H u m e ' s Position Concerning Wom- e n , " 15 Dialogue (1976) p p . 425-40, and S. Burns, The Humean Female, 15 Dia- logue, p p . 415-24. 12. Second Treatise, S. 27. 13. Here I am oversimplifying. Both Locke and H u m e hold that property can ex- ist independently of civil law, i.e., in a Lockean state of nature. But for Locke this is because there are natural rights to property. H u m e , on the other hand, holds that there could be (and must have been) conventions es- tablishing property prior to the introduction of positive law. 14. "Those, therefore, w h o make use of the words property, right, or obligation, before they have explained the origin of justice, or even make use of them in their explication, are guilty of a very gross fallacy ..." (T, p . 491). 15. Again I find myself consulting the dictionary in search of a connection in the language which both Locke and H u m e were relying u p o n . It is interesting to discover that 'property' and 'propriety' were interchangeable, and derived from the same root. The latter certainly suggests a connection with conven- tion which is not as obvious in 'property'. But still the supposed connection with justice remains as opaque as before. 72 16. Here I am treating distributive justice as the basic concept from which rec- tificatory and even retributive justice are derived. I will not defend this as- sumption here. 17. See £, p p . 193-4. 18. H u m e discusses this aspect of jurisprudence in a lengthy footnote running from T, p p . 505 to 508. 19. See T, p p . 488-9, where H u m e discusses the need for rules of justice in over- coming the "partial and unequal affection" which is natural to u s . 20. The example is repeated in the Enquiry (Appendix, p p . 306-7). In both works a comparison is also made with the conventions which establish money and which give meanings to words. An excellent discussion of convention is P. Ardal, "Convention and Value," in David Hume: Bicentenary Papers, (Edin- burgh, 1977) p p . 51-67. 21. H u m e argues that if we were to interact with creatures of "inferior strength ... we should be b o u n d by the law of humanity to give gentle usage to these creatures, but should not, properly speaking lie u n d e r any restraint of justice with regard to t h e m " (£, p . 190). Such a relationship, he goes on to say, has sometimes existed between men and w o m e n . But the possibility that in- justice may be involved after all is suggested by his reference to this subser- vience of women as "tyranny" (£, p . 191). 
work_xvev6aepbrgwzmckzctr7zehw4	----	wp-p1m-38.ebi.ac.uk Params is empty 404 sys_1000 exception wp-p1m-38.ebi.ac.uk no 221727962 Params is empty 221727962 exception Params is empty 2021/04/06-03:20:24 if (typeof jQuery === "undefined") document.write('[script type="text/javascript" src="/corehtml/pmc/jig/1.14.8/js/jig.min.js"][/script]'.replace(/\[/g,String.fromCharCode(60)).replace(/\]/g,String.fromCharCode(62))); // // // window.name="mainwindow"; .pmc-wm {background:transparent repeat-y top left;background-image:url(/corehtml/pmc/pmcgifs/wm-nobrand.png);background-size: auto, contain} .print-view{display:block} Page not available Reason: The web page address (URL) that you used may be incorrect. Message ID: 221727962 (wp-p1m-38.ebi.ac.uk) Time: 2021/04/06 03:20:24 If you need further help, please send an email to PMC. Include the information from the box above in your message. Otherwise, click on one of the following links to continue using PMC: Search the complete PMC archive. Browse the contents of a specific journal in PMC. Find a specific article by its citation (journal, date, volume, first page, author or article title). http://europepmc.org/abstract/MED/ 
work_xvhysz3xfrdzxcvwgv4rgw7jjq	----	O R I G I N A L P A P E R Participatory Democracy and Criminal Justice Albert W. Dzur Published online: 22 April 2012 � Springer Science+Business Media B.V. 2012 Abstract This essay asks if there is a role for an active public in ratcheting down the harsh politics of crime control in the United States and the United Kingdom that has led to increased use of the criminal law and greater severity in punishment. It considers two opposing answers offered by political and legal theorists and then begins to develop a participatory democratic framework for institutional reform. Keywords Punishment � Citizen participation � Democracy � Restorative justice � Criminal jury Introduction Is there a role for an active public in ratcheting down the tough-minded politics of crime control in the United States and the United Kingdom? Political and legal theorists offer two opposing answers. On the one hand are insulationists, such as Nicola Lacey, Philip Pettit, and Franklin Zimring, who advocate removing certain criminal justice issues that impact incarceration rates from public influence. They endorse penal policy boards that would take issues such as the permissible size of the prison population and guidelines for appropriate sentencing off the legislative agenda, thus providing insulation from public influence. A contrasting conception comes from integrationists like John Braithwaite, Nils Christie, and Howard Zehr, who see lay citizen involvement as an integral part of a framework that fosters the right kind of criminal justice dialogue and essential for building a network of support for non-punitive programs. They advocate criminal justice institutions that inte- grate public participation so that citizens consider hard questions, face suffering human beings, and share responsibility for outcomes. This essay argues that the insulationist approach has practical and normative difficulties that reveal advantages of the integrationist model. We need to rethink some core A. W. Dzur (&) Departments of Political Science and Philosophy, Bowling Green State University, Bowling Green, OH, USA e-mail: awdzur@bgsu.edu 123 Crim Law and Philos (2012) 6:115–129 DOI 10.1007/s11572-012-9149-x 
work_xvk2j3cfjvfyjfr3bhgx6ddn5m	----	GS_13.1_3RD Restorative justice is a process where all the stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have afflicted the harm must be central to the process. Empirically it happens to be the case that victims of crime are more concerned about emotional than material reparation (Strang, 2003). Lawyers are obviously not well placed to give an account of these emotional harms and how they might be healed. Hence, the practice of restorative justice has become a de-professional- izing project. Yet we will see that lawyers still have an impor- tant, though decentred, place in a restorative justice system. Restorative justice comes in many forms. The most common in Europe and North America is victim-offender mediation. But the movement, inspired by New Zealand conferring and Canadian circle innovations, has been toward widening the circle to include supporters of the offender, supporters of the victim and some- times other kinds of stakeholders from the community such as representatives of the school commu- nity when a crime occurs at school, or a congregation where it occurs within a church. So the f irst stage under most conferencing models is to approach the victim and offender to ask them not only to participate in a meeting with each other, but also to ask them to nom- inate who they would most like to have support them during the conference. When lawyers prepare for a court case, they invite people who, as witnesses, can inflict maximum damage on the other side; restorative jus- tice facilitators empower stakeholders, both victims and offend- ers, to invite the people who will provide maximum support to their own side. Conferrees discuss what happened and who was harmed by it. Sometimes the offender will be asked to summarize all the harms that have been mentioned by the participants. Then the conversation turns to what might be done to right the wrong. A plan with specific commitments on the part of the offender will be agreed upon and then this agreement will be signed by the victim, the offender and other stakeholders who have obligations under the agreement. Some programs have follow-up confer- ences to check implementation of the agreement and some even hold a celebration circle when implementation is completed. Citizens beyond the victim and the offender might also sign the agreement because they assume responsibility for some aspect of the agreement. For example, the victim of a violent crime might ask that the offender attend an anger management program. A supporter of the offender says that after a previous offense the judge ordered attendance at an anger management program. The offender attended a couple of times and then just stopped bothering to attend. An uncle chimes in and offers to pick the offender up every Tuesday evening at 7 pm to ensure that this time he attends. The offender agrees that attendance would be good for him, but the program is confronting and an emotional struggle for him. So he would like the weekly support of his uncle to make him attend. Thus the uncle signs the agree- ment as well. Note how restorative justice involves a shift from passive responsibility to which offenders are held by professionals for something they have done in the past to citizens taking active responsibility for making things right into the future. Active responsibility is a virtue of civic participation. As in the anger management example, restorative jus- tice is about creating participatory spaces where active responsibility might be taken by offenders, but not only by offenders. Active responsibility is some- times shared by victims. Occasionally burglars will explain to victims in a conference why their house is such an attractive target for practitioners of their craft. The burglar will assist the victim, perhaps with help from a police officer who is also in attendance, to design a target hardening strategy for which the victim voluntarily decides to take responsibility. The evaluation literature now shows that restorative justice agreements are consistently more likely to be implemented in part or in full than court orders, even though sanctions may attach to non-compliance with court orders but not conference agree- ments (Latimer Dowden and Muise, 2001; Braithwaite, 2002). The reason for this success is that uncles are more effective at supporting agreements to attend an anger management program, to make regular compensation payments to victims, to do com- munity service work than are judges. This may be one reason why recent meta analyses and literature reviews also find crim- inal cases assigned to restorative justice have statistically sig- Note how restorative justice involves a shift from passive responsibility to which offenders are held by professionals for something they have done in the past to citizens taking active responsibility for making things right into the future. Active responsibility is a virtue of civic participation. 28 The Good Society, Volume 13, No. 1, 2004 • Copyright © 2004 The Pennsylvania State University, University Park, PA S Y M P O S I U M Restorative Justice and De-Professionalization John Braithwaite chf nificantly lower reoffending rates than cases in non-restorative justice control groups (Latimer Dowden and Muise, 2001; Braithwaite, 2002; Nugent Williams and Umbreit, 2003). Criminal justice with higher levels of civic participation sim- ply works better most of the time in comparison to punitive justice imposed by professionals—not only in terms of crime prevention, but also in terms of stakeholders such as victims and offenders reporting that they have been treated fairly, not discriminated against because of their race or gender, had their rights respected, had their fear of re-victimization reduced, their anger reduced, and more (Braithwaite, 2002; Strang, 2003; Poulson, 2003). But most of the time does not mean all the time. While restorative justice often works very well with corporate crime, for example, often it does not work well with business executives who are moved by the bottom line of their f irm’s per- formance (Braithwaite, 2002: 17–24; 62–66). Some are simply not moved by learning about how they have hurt vic- tims. When this is the case, the state must escalate its regulatory strategy from one based on restorative justice to one based on deterrence. But there are also many reasons why deterrence fails. One is that the business might respond to heavy legal penalties by going bankrupt. Then an incapacitative escalation is needed in response to the failure of deterrence. So the regulator might negatively licence the offender from ever holding a position of responsibility in a business organization that trades with the pub- lic or it might put the offender in prison. Hence a restorative jus- tice strategy must be backed up by a responsive regulatory strat- egy that assumes restorative justice will often fail. The idea of responsive regulation is that we have a preference for delibera- tive forms of regulation at the base of the regulatory pyramid, but we are willing to escalate through more and more interven- tionist strategies when these fail to protect the community from injustice. The pyramidal strategy seeks to cover the weaknesses of one regulatory strategy with the strengths of another (see Figure 1). It is a dynamic strategy that assumes all actors have multiple selves—a socially responsible self that we can appeal to through civic deliberation, a rational calculating self that we can touch with deterrence and irrational and incompetent selves that might only be managed by incapacitation. It is not a static triage theory that says these are the cases that are suitable for restorative justice, and these are the more serious matters we must deter or incapacitate. One reason is that it is more serious injustices—notably violent as opposed to property crime—where the evidence is beginning to suggest restorative jus- tice has the greatest comparative advan- tage over punitive justice. This logic of the primacy of restora- tion over deterrence and intervention applies in the global arena as well that of domestic justice. Hence we are best to assume that even the socially irresponsible and seemingly irrational lead- ership of North Korea is best responded to with restorative jus- tice as a first preference. Diplomacy should appeal to the socially T H E O R Y O F D E M O C R A T I C P R O F E S S I O N A L I S M The idea of responsive regulation is that we have a preference for delibera- tive forms of regulation at the base of the regulatory pyramid, but we are willing to escalate through more and more interventionist strategies when these fail to protect the community from injustice. Volume 13, Number 1, 2004 29 ASSUMPTION Incompetent or Irrational Actor Rational Actor Virtuous Actor DETERRENCE RESTORATIVE JUSTICE INCAPACITATION Figure 1: Toward an Integration of Restorative, Deterrent and Incapacitative Justice responsible side of their engagement as a member of the world community. The nuclear non-proliferation regime has been remarkably successful in persuading the most evil of tyrants to abandon nuclear weapons programs. President Kennedy pre- dicted more than forty years ago that by the 1970s there would be dozens of nuclear weapons states. One reason this has not happened is that dialogic inspections work. The nuclear non-pro- liferation regime works better than anyone could reasonably have expected, even in many hard cases like Iraq and Iran and South Africa. Responsive regulatory theory says it will work especially well when it is backed by a willingness to escalate to more deter- rent and incapacitative measures. Yet the possibility of escala- tion must be threatening in the background, not threatened in the foreground of deliberative problem solving. The psychological evidence is that making threats engen- ders defiance (Sherman, 1993) or reac- tance (Brehm and Brehm, 1981). We will not persuade leaders to put their socially responsible self forward by rat- tling sabres at them or denigrating them as an axis of evil. Dialogue from a posi- tion of quiet strength works when the world community insists, as a united voice, that threats to the peace of inno- cents will not be allowed to stand. As with violent crime in the streets and corporate crime in the suites, the evidence suggests that restorative diplomacy can work with most states most of the time (Braithwaite, 2002: Chapter 6). The most recent work on restorative justice examines not only war- lords who we ask to disarm but the citizens who have been dam- aged by war in a way that wills them to pass hatreds on to the next generation (Howley, 2003). Hatreds, in other words, must be healed from the bottom up as well as from the top down. So while the restorative diplomacy of professional diplomats is important, we constantly make the mistake of neglecting de-pro- fessionalized restorative justice for the victims of war. The best place to start with a de-professionalized justice proj- ect is with children in schools, whether the injustice they have witnessed is an horrific war crime in which their parents were killed or tortured, or a more banal incident of school bullying. There is more to the democratic virtue of restorative justice than returning conflicts to the citizens from whom they have been stolen. Western democratic institutions were planted in the shal- low soil of societies where disputes had been taken over by the king. Disputing over daily injustices is where we learn to become democratic citizens. And the learning is more profound when those daily injustices reveal deeply structured patterns of injus- tice. Engagement with them is de Tocqueville’s apprenticeship of liberty. In Benjamin Barber’s terms, democratic disputing is educative, central to learning to be free: We must be taught to be thinking, competent, legal persons and citizens. We are born belonging to others; we have to learn how to sculpt our individuality from common clay. The liter- acy to live in civil society, the competence to participate in democratic communities, the ability to think critically and act deliberately in a pluralistic world, the empathy that permits us to hear and thus accommodate others, all involve skills that must be acquired. Excellence is the product of teaching and is liberty’s measure (Barber 1992: 4–5). I remember in 1991, in the early days of restorative justice conferencing in Australia, suggesting to my colleague Terry O’Connell that it was a mistake to allow young children to attend and participate in conferences. Sometimes it is, but basically empirical experience has proved me wrong. In conferences, chil- dren are learning to be democratic cit- izens. The adults are mostly wise enough to make allowance for the unso- phistication of much of what they say and to support them, help them estab- lish the relevance of their point of view. Often it is the very unsophistication of the child’s legitimate perspective that is so moving: “I’ve listened to what you’ve said about [my big brother]. It’s not true. He is always kind to me; he helps me when I don’t know what to do. I don’t know any boy who is kinder than my brother.” All children personally encounter bullying in school through their own experiences or those of their friends being perpetrators or victims. All children therefore can be given the opportunity of learning to be democratic citizens through taking active respon- sibility for the bullying problem in their schools. The evidence is that restorative approaches to school bullying work in reducing its incidence, but this may be the less important outcome than the teaching of democratic citizenship (Morrison, 2003). Once citizens learn to be actively responsible as opposed to learning to rely totally on protection by a state that enforces pas- sive responsibility, they are more likely to become active in social movement politics. The lessons of restorative justice need not be conf ined to the realm of the courtroom; NGOs offer another great avenue for revitalizing meaningful forms of citizen par- ticipation in a democracy. They can be as relevant to democra- tizing global institutions such as the IMF, the World Bank and the WTO as they can be to re-democratizing the state (Braithwaite and Drahos 2000). NGO influence can feed back into restorative justice confer- ences as advocacy of making the personal political, by invoking the possibility of agitating for structural change. Most impor- tantly, the justice of the people can put pressure on the justice of the law and create change. This indeed is a shared project of S Y M P O S I U M Hatreds, in other words, must be healed from the bottom up as well as from the top down. So while the restorative diplomacy of professional diplomats is important, we constantly make the mistake of neglecting de-professionalized restorative justice for the victims of war. 30 The Good Society the partnerships restorative justice advocates seek to forge with other social movements against domination. However, just as we want the justice of the people to have an institutional channel to speak to the justice of the law, so we should want the justice of the law to f ilter down into the jus- tice of the people (Braithwaite and Parker, 1999). The tyranny of the majority is always a risk in the justice of the people. We do need the rule of law, interpreted by legal professionals, to provide a check and balance on the many possible tyrannies of the justice of the people. It is not good enough to conclude that empirically citizens feel their rights are better protected in most restorative justice conferences than in court cases (so the restorative justice path is the path to a richer rights culture). We also need an analysis of what should happen when rights are abused in restorative justice processes, as they often are (Braithwaite, 2002: Chapter 5). The youth conferencing legislation of the Australian state of New South Wales guarantees young people free access to a legal advice hotline if they are offered an opportunity for a con- ference. So if for example they or their parents feel a confer- ence seeks to impose on them a more onerous punishment than a court would ever impose for the same offense, they can ask for the adjournment of a conference while they seek advice from a lawyer on the hotline. Indeed, they can do this after they have signed a conference agreement, repudiate the agreement and take their chances in court. Such legal safeguards are vital to a rule of law that secures republican freedom as non-domi- nation (Pettit, 1997). Just as demonstrated in the enforcement pyramid, deliberative democracy does most of the work of securing compliance with the law but more professionalised forms of law back it up when it fails, so restorative justice does most of the work of protecting rights and securing freedom as non-domination. But when restorative justice fails to do so, there is a professional justice of lawyers watching and stepping in to check any civic participation that produces tyranny. That intervention of course should be grounded in laws that a dem- ocratically elected legislature has enacted to create minority rights that can fly in the face of any majority consensus pro- duced by a deliberative process. Hence, like Olson and Dzur (2003) my argument is not for doing without professionalism, but for nurturing a non-dominating professionalism that facil- itates civic engagement and facilitates checking one form of engagement with another. Conclusion The use of restorative justice circles to confront problems that all children confront—such as school bullying—can be a uni- versal apprenticeship in civic engagement. The fact that it works in reducing bullying is a nice bonus. It works because citizen commitment is the stuff of effective and just social control. A society where we relied mainly on lawyers to enforce rights would be a dangerous society. A society where our reliance on civic engagement to secure rights was so total as to abolish legal professionalism would also be tyrannous in conditions of com- plex modern societies. John Braithwaite is Professor in the Law Program and the Chair of the Regulatory Institutions Network at Australian National University. References Barber, Benjamin R. 1992. An Aristocracy of Everyone: The Politics of Education and Future of America. New York: Oxford University Press. Braithwaite, John. 2002. Restorative Justice and Responsive Regulation. New York: Oxford University Press. Braithwaite, John and Peter Drahos. 2000. Global Business Regulation. Melbourne: Cambridge University Press. Braithwaite, John and Christine Parker. 1999. “Restorative Justice is Republican Justice.” In Restoring Juvenile Justice: An Exploration of the Restorative Justice Paradigm for Reforming Juvenile Justice, edited by Lode Walgrave and Gordon Bazemore. Monsey, New York: Criminal Justice Press. Brehm, Sharon S. and Jack W. Brehm. 1981. Psychological Reactance: A Theory of Freedom and Control. New York: Academic Press. Howley, Patrick 2003. Breaking Spears and Mending Hearts: Peacemakers and Restorative Justice in Bougainville. London: Zed Books. Latimer, Jeff, Craig Dowden and Danielle Muise 2001. The Effectiveness of Restorative Justice Practices: A Meta-Analysis. Ottawa: Department of Justice, Canada. Morrison, Brenda 2003. From Bullying to Responsible Citizen- ship: A Restorative Approach to Building Safe School Communities. Sydney: Federation Press. Nugent, William R., Mona Williams and Mark S. Umbreit 2003. “Participation in Victim-Offender Mediation and the Prevalence and Severity of Subsequent Delinquent Behavior: A Meta-Analysis.” Utah Law Review 2003(1): 137–166. Olson, Susan M. and Albert W. Dzur 2003. “Reconstructing Professional Roles in Restorative Justice Programs.” Utah Law Review 2003(1): 57–89. Pettit, P. 1997. Republicanism. Oxford: Clarendon Press. Poulson, Barton 2003. “A Third Voice: A Review of Empirical Research on the Psychological Outcomes of Restorative Justice.” Utah Law Review 2003(1): 167–203. Sherman, Lawrence. W. 1993. “Def iance, Deterrence and Irrelevance: A Theory of the Criminal Sanction.” Journal of Research in Crime and Delinquency 30: 445–473. Strang, Heather 2003. Repair or Revenge: Victims and Restorative Justice. Oxford: Oxford University Press. Strang, Heather and Lawrence Sherman 2003. “Repairing the Harm: Victims and Restorative Justice.” Utah Law Review 2003(1): 15–42. T H E O R Y O F D E M O C R A T I C P R O F E S S I O N A L I S M Volume 13, Number 1, 2004 31 
work_xwlimhf4gbfanihgnoipeuduyq	----	Masson, J. (2016). Relationships v Relatedness in family Justice. Journal of Social Welfare and Family Law, 38(4), 456-459. https://doi.org/10.1080/09649069.2016.1239369 Peer reviewed version Link to published version (if available): 10.1080/09649069.2016.1239369 Link to publication record in Explore Bristol Research PDF-document This is the accepted author manuscript (AAM). The final published version (version of record) is available online via Taylor and Francis at http://dx.doi.org/10.1080/09649069.2016.1239369. Please refer to any applicable terms of use of the publisher. University of Bristol - Explore Bristol Research General rights This document is made available in accordance with publisher policies. Please cite only the published version using the reference above. Full terms of use are available: http://www.bristol.ac.uk/red/research-policy/pure/user-guides/ebr-terms/ https://doi.org/10.1080/09649069.2016.1239369 https://doi.org/10.1080/09649069.2016.1239369 https://research-information.bris.ac.uk/en/publications/5fb66842-2d32-4c27-a833-d432ab4b16f6 https://research-information.bris.ac.uk/en/publications/5fb66842-2d32-4c27-a833-d432ab4b16f6 Relationships v Relatedness in family Justice Judith Masson* Law School, University of Bristol, UK The Court of Appeal’s decision in Re W corrects misunderstandings that there are rights or presumptions which govern court decisions about children and criticises the simplistic application of the Supreme Court’s decision in Re B (2013). It raises important questions about: the meaning of welfare and the continued relevance of status quo in decision-making; how ECHR art 8 should shape litigation in private family law; delay in adoption proceedings; how errors in the system are created, detected and avoided; and the role of the court in promoting agreements. Key words: adoption; special guardianship; attachment theory; rights to family life; delay. In Re W [2016] EWCA Civ 793, the Court of Appeal allowed an appeal by prospective adopters (Mr and Mrs X) against a decision by Bodey J, refusing their adoption application and granting a special guardianship order (SGO) to grandparents, who had never met the two year old child, A. Readers with understanding of attachment theory and knowledge of the effects of breaking attachments will be alarmed at the original decision. Those steeped in the principles of the Children Act 1989, which is drafted to restrict interference in families by court applications may wonder how the lower court got into this position. However, anyone who has followed the development of case law will be aware that thinking and practice in the family justice system has been re-oriented since the decisions of Re B [2013] UKSC 33 and Re B-S [2013] EWCA Civ 1146. Re W raises important questions about: the meaning of welfare and the continued relevance of status quo in decision-making; how ECHR art 8 should shape litigation in private family law; delay in adoption proceedings; how errors in the system are created, detected and avoided; and the role of the court in promoting agreements. Lord Justice McFarlane, who gave the main judgment with which Jackson and Lindblom LJJ agreed, found Bodey J’s decision ‘fatally flawed’ (para 63) because he had accepted and relied on ‘inadequate’ evidence from the children’s guardian and Independent Social Worker (ISW) which was based on a misunderstanding of the law. He also criticised the judge’s failure to recognise the relevance of human rights (para 77) and the way the case had been conducted, which left the court with no knowledge of A as a person. The case was remitted for rehearing by Cobb J, with a clear indication that advocates should present human rights arguments. Lord Justice Jackson expressed a hope that the parties would compromise (para 95). In private law decisions, the established arrangements for the child, referred to as the ‘status quo’, have long held magnetic importance, revealed in empirical research (Eekelaar and Clive 1977) and justified in case law (D v M (Minor: Custody Appeal) [1982] 3 All ER 897). McFarlane LJ discussed the status quo argument, repeating passages from his leading judgment in Re M’ P-P [2015] EWCA Civ 584, where the Court of Appeal overturned a decision to remove children from their long-term foster carer/ prospective adoptive parent and grant a SGO to their aunt. He noted that it was not usually relevant in public law cases but was reflected in the welfare checklists, in Children Act 1989, s.1(3)(c), the effect of change, and Adoption of Children Act 2002, s.1(4)(f), the likelihood and value *Email: Judith.Masson@bristol.ac.uk mailto:Judith.Masson@bristol.ac.uk of continuing relationships. In this way attachment theory, the importance of children’s attachment to their primary carers for development and well-being was firmly accepted and acknowledged in law. While it is true that shorter care proceedings mean fewer children are in long-established placements at the final hearing, this is not the case for adoption proceedings. One effect of Re B-S has been to lower the bar for leave to oppose adoption. Munby P stated correctly that ‘mere passage of time cannot be determinative’ (para 74 (vii)). However, where the ultimate question is whether the child should live with the adopters or someone else, the length and depth of attachments can be decisive. Also, applications for leave like that of the grandparents will necessarily involve consideration of disruption to the child’s attachments, (CA 1989,s.10(9)(c)) and about the likely success of the substantive application. From this perspective, granting leave to the grandparents was questionable. McFarlane LJ drew a distinction with fostering because ‘a firm and secure attachment is not one of the primary aims of the placement’ (para 64). This is too simplistic. Good fostering practice stresses the importance of ‘a secure base’ for children (Schofield and Beek 2014) and long-term fostering is a permanency option (DfE 2015, 2.4). Some carers cannot afford to become special guardians or adopters. The nature of the care arrangement matters, not its label. There was an invaluable relationship between the carer and the children in Re M’P-P long before she was approved to adopt either of them. Both the children’s guardian and the ISW worked from the assumption that if a relative was willing and able to care for a child, the child had a right to be placed with them. Their thinking infected Bodey J’s decision. McFarlane LJ was determined to put an end to such views. There was no right to or presumption/ assumption of placement in the ‘natural family’ (paras 70-71). The pro and cons of each option must be assessed in terms of the child’s welfare. Baroness Hale’s phrase, ‘nothing else will do’ (Re B, para 215) was ‘meaningless, and potentially dangerous’ (para 68) not a ‘hyperlink’ to the outcome without such assessment. It provided a distillation of the proportionality and necessity tests, and should only be deployed after the balancing exercise. Counsel for the adopters prepared a written submission: ’to allow an application to prevent an adoption where a child has spent sufficient time with her adoptive family that she views them as her only and permanent family is contrary to public policy and in breach of the human rights of the child and the adoptive parents’ but accepted the court’s suggestion not to proceed orally with this ’adventurous’ approach (paras 61-2). Nevertheless, McFarlane LJ’s judgment included some discussion of it. His style was elliptical as if he did not want to nail his colours to the mast but recognised its strength. He appeared to accept that allowing applications in such circumstances could be a breach of public policy /human rights (para 64) but was not prepared to hold the Children Act 1989 incompatible with the Convention. However, he found ‘beyond question’ that ‘family life’ now existed between A and the Xs and must be respected and, more tentatively, that these were the only article 8 rights in play (paras 79-80) but left further analysis and the implications to Cobb J. Where the only art 8 rights in question are held by the prospective adoptive family, the court’s leave for others to seek orders, which could undermine those rights is an interference in family life, which can only be justified within article 8(2). This is reflected in the leave provisions in Children Act 1989, s.10. Parents, step-parents and (long-term) carers do not need leave because they have ‘family life’ with the child, others must qualify under s.10(9). Unless the intervention, leave for private law proceedings, is proportionate the family’s human rights are breached. On this analysis, the court should not have allowed the grandparents to make their SGO application. The Xs’ adoption application should have been unproblematic even though three months after it was filed, and in response to the standard notification letter, the father indicated an intention to oppose, as did the grandparents. The father could not have shown change of circumstances (ACA 2002, s.47(7)), he was involved in care proceedings relating to his second child. The grandparents had no right to oppose (para 9); they needed leave to apply for a SGO (ACA 2002, s. 29(5)) and had to give notice to the local authority three months beforehand (CA 1989, s. 14(7)). Rather than determine the Xs’ application, the court managed the process to facilitate the grandparent’s challenge; whether this was deliberate, due to a shortage of hearing time or because adoption applications are not given priority was not explained. The consequences for the Xs, A and the grandparents has been a year of stressful litigation, which is not yet over, mostly at public expense; the hard-pressed court system has used up resources needed for other cases. This is a clear example of delay creating work and causing injustice. Adoption proceedings should be time-tabled to be completed in 20 weeks. The decision-making at first instance was riddled with errors: The grandparents were treated as if they could apply to oppose the adoption; the potential harm to A by their application for leave was evidently not considered. The children’s guardian prepared a report as if the court was only considering an uncontested CAO application, and without meeting the adopters or the child. The ISW instructed for the special guardian assessment founded her conclusions on an error of law and without knowledge of A as an individual. Neither ‘expert’ referred to the adoption checklist in their reports nor completed a Re B-S assessment. Bodey J failed to see these inadequacies and preferred their views over those of adoption social worker who had been working with the family for almost two years because of their independence and greater experience (para 59). Even McFarlane LJ rejected counsel’s argument because of Bodey J’s experience. Such errors occur because individuals assume they know the right answers to complex problems or apply heuristics to find an answer quickly. An increase in cases places pressure on professionals and courts so they behave in this ‘sloppy’ way. The solution lies not in lists of guidance but interdisciplinary knowledge and professional challenge, and in reducing applications, for example by refusing leave. It is not surprising that Jackson LJ hoped the dispute could be resolved by agreement (Jackson, 2009). However, civil cases are vastly different; a money claim would not have challenged King Solomon’s wisdom. Neither couple had any choice but to use the courts to obtain a legal relationship with A. The court had foisted this dispute on the Xs, but not given them the power to resolve it. Withdrawing their application would not safeguard A’s welfare. Post adoption contact relationships are complex and difficult to sustain (Neil et al 2014), litigation over full time care is an unlikely basis for success. In a context where judges have questioned whether parents can ever truly consent to their children being looked after (CA 1989, s.20), judges must be careful not to pressurise parties rather than make decisions. Family cases resolve (or not) individual claims, they also indicate the current climate in family justice. Re W demonstrates that the stormy period heralded by Re B, has not yet resolved into clear skies. The lightning flashes from the Supreme Court have obscured the value of adoption and fog and hailstones from the Court of Appeal have made it hard to find the way. The adults and children exposed to these storms have suffered most. References Eekelaar, J. and Clive, E. (1977) Custody after Divorce Oxford: Centre for Socio-Legal Studies Department for Education (2015) Children Act 1989 Guidance and Regulations, Vol 2 Care planning, placement and review London: TSO Jackson Report (2009), The Review of Civil Litigation costs; Final Report London: TSO Neil, E., Beek, M. and Ward, E. (2014) Contact after adoption London: BAAF Schofield, G. and Beek, M. (2014) The secure base model London: BAAF 
work_xyv6w26655fmvdzcujmdwi7st4	----	Microsoft Word - Björkdahl & Mannergren - No 1 - 2013.docx LUND UNIVERSITY PO Box 117 221 00 Lund +46 46-222 00 00 Advancing Women Agency in Transitional Justice Björkdahl, Annika; Mannegren Selimovic, Johanna 2013 Link to publication Citation for published version (APA): Björkdahl, A., & Mannegren Selimovic, J. (2013). Advancing Women Agency in Transitional Justice. (Gender Just Peace and Transitional Justice Working Paper Series; Vol. Vol. 1, No. No. 1). Lund University. Total number of authors: 2 General rights Unless other specific re-use rights are stated the following general rights apply: Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal Read more about Creative commons licenses: https://creativecommons.org/licenses/ Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. https://portal.research.lu.se/portal/en/publications/advancing-women-agency-in-transitional-justice(87a430e4-7552-4406-9573-efd1f7df54be).html ! ! ! Gender-just peace and transitional justice ! l u n d u n i v e r s i t y working paper no. 1 (2013)! ad va nci ng w om en agen cy in tra nsiti ona l justic e annika björkdahl lund university johanna mannergren selimovic swedish institute of international affairs! u p p s a l a u n i v e r s i t y s w e d i s h i n s t i t u t e o f i n t e r n a t i o n a l a f f a i r s SERIES EDITOR: Ivan Gusic, Lund University CORRESPONDENCE TO: ivan.gusic@svet.lu.se This project has been made possible by SIDA and the Swedish Research Council. Visit the project’s homepage at: http://goo.gl/5vnqT IN SERIES 1. Advancing women agency in transitional justice – Annika Björkdahl & Johanna Mannergren Selimovic 1 TABLE OF CONTENTS 1. INTRODUCTION 2 2. ENGENDERING TRANSITIONAL JUSTICE THROUGH ENHANCING AGENCY 5 2.1. MAPPING THE GENDERED PEACE AND JUSTICE GAPS 6 2.2. GENDERING AGENCY 10 3. GENDERED PEACE AND JUSTICE GAPS IN BIH 13 3.1.THE ACCOUNTABILITY GAP 15 3.2. THE ACKNOWLEDGEMENT GAP 18 3.3. THE REPARATION GAP 21 4. CONCLUSION – TOWARDS A GENDER-JUST PEACE 26 4.1. AGENCY AND THE TRANSFORMATIVE POWER OF ACCOUNTABILITY, ACKNOWLEDGEMENT AND REPARATIONS 27 4.2. THE GENDERED POLITICS OF ACCOUNTABILITY, ACKNOWLEDGEMENT AND REPARATIONS 27 4.3. TOWARDS A GENDER-JUST PEACE 28 5. REFERENCES 30 2 1. INTRODUCTION ”Peace without justice is only a symbolic peace” Nobel Price laureate Rigoberta Menchu This paper contributes to an on-going conversation among scholars engaged in the critical peacebuilding research regarding the issue of agency by highlighting the central yet often neglected role of women agency in transitional justice processes. It takes as its point of departure the critical questions repeatedly posed: whose peace, what justice and for whom? Thus, the aim is to critically examine where women are located in the processes of doing justice in post- conflict societies, to map the set of dispositions which exists in these processes that inclines women agents to act/react and in doing so theorize women agency in transitional justices processes. More specifically, we expose and investigate three gendered transitional justice gaps in Bosnia-Herzegovina. First, the accountability gap is revealed and we discuss the legal, physical and socioeconomic discriminatory insecurities of women witnesses, the overall lack of female presence and the misrepresentations of women-as-victims. Second, we examine the acknowledgement gap and attempts at gendering the narrative of the past -commemoration of rape camp such as the one in Foca. Third, the reparation gap is investigated to reimagine reparations programs that may contribute to challenge existing gender hierarchies and bring about social transformation. Mainstream understandings regard peacebuilding and transitional justice as ungendered practices and discourses that are able to produce just peace in societies emerging from violent conflict. In contrast, the critical peacebuilding research reads peacebuilding and transitional justice as an inherently conflictual process and a site for power relations where the lack of engagement with and empowerment of local agents is understood as one of the reasons for the limited success of the liberal peacebuilding project (Richmond 2011: 420; Björkdahl and Höglund ed. 2013). Such reflexive approach also informs investigations of the gendered dynamics of peacebuilding and transitional justice. Subsequently, critical researchers have begun to analyze how and in what particular ways liberal peacebuilding contributes to the disciplinary and normalizing gender-practices that has come to characterize the gendered post- conflict phase (Meintjes et al 2001; Väyrynen 2010). More recently, focus on transitional justice depicts how transitional justice processes produce a highly 3 gendered justice (Bell and O’Rourke 2007; Ni Aolain et al 2011; Buckley-Zistel and Stanley ed. 2012). Thus, the gendered hierarchies built into liberal peacebuilding and transitional justice and the absence of women in these processes produce peace and justice gaps that are gendered. As the micropractices of power that takes place in the post-conflict spaces are being mapped and investigated it becomes clear that peacebuilding and transitional justice assign local women a particular type of agency. Here women agency is viewed as passive, protected, civilian and peaceful. Still it is expected that women are to provide a voice of the authentic ‘local’ and the marginalized and thus vital for localizing peace and justice. Hence a more critical reading of processes to build peace and justice in post-conflict societies as called for by Väyrynen (2010: 147) is much needed. Such critical reading of peacebuilding and transitional justice can fruitfully be conducted through a gender lens. Yet, the conceptual basis for taking such approach is hampered by the fact that gender is a complex, multi-layered and contested concept. There is little agreement about the basic definition of gender as the socially and culturally constructed identities of men and women and the prevalence of women’s subordination to men is key to the gendered hierarchies. The view taken here does not couple femininity with peace and masculinity with war which may postulate women as “pacific Others” (Elshtain cited in Väyrynen 2010: 149). Instead, we employ gender as a concept that informs an understanding of exclusion and marginalization more broadly. Gender analysis then is a way of exploring the forms that subordination takes in any particular spaces, while we choose to zoom in on peacebuilding space and within it the processes of transitional justice. We understand transitional justice as part of the liberal peacebuilding discourse – as a site of power production, domination, negotiation and rejection involving the collaboration of various actors, institutions and individuals. Our ambition is to bridge the ongoing discussion on transitional justice to a research agenda concerned with transformative approaches to peacebuilding. Such approaches seek to uncover and confront prevailing gendered hierarchies and encourage wider social change through changing the antagonistic relationships that were present prior to the conflict, or were shaped and consolidated during it, and which has become a hallmark of women’s post-war experience. Our perspective is that of “transitional justice from below” and we attempt to re-imagine transitional justice as a transformative project towards a “gender-just peace” (Björkdahl 2012). A gender-just peace is understood not as 4 a reconstruction of the pre-war situation, but as a positive peace that provides for social justice and equity and that recognizes women’s social and reproductive roles and women’s agency. It is a peace that contributes to a fundamental shift in the provision of specific rights related to women’s gender roles, a transformation of gender relations in society and redefinition of gendered hierarchies. Gendering agency is the starting point for this endeavor. By gendering agency we access agents and spaces for agency that may be hidden, ignored or misrepresented in mainstream approaches to transitional justice and peacebuilding. We are not uncritically relying on concepts such as “women’s experience” which may essentialize women and constitute women as a homogenous group. Nor do we constitute “local women” as “Others” i.e. passive victims in need of protection (Väyrynen 2010: 138). In this paper we conceptualize women’s agency, locate the female agentive subject, and identify instances of critical, creative agency that challenge or negotiate patterns of gendered relations of domination. In this endeavour we challenge the assumption of equality of interest of agents, which is underpinned by the myth that men and women follow the same practices and that they are equally placed to shape these practices. By focusing on gendered transitional justice gaps, we aim to disclose the restraints and enablements of women’s agency, examine how women exercise creative, critical agency to further transformations towards a gender-just peace. We do this through specific observations of the post-conflict processes in Bosnia-Herzegovina. The peace that has been constructed through nearly two decades of extensive peacebuilding including transitional justice processes is fragile, externally driven and riven with contradictions and gendered inequalities. The Dayton Peace Accord did in fact “not diminish but reaffirmed the patriarchal nationalism as a dominant ideology and social system in post- war Bosnia” and established a peace that is far from gender just (Cockburn 2013: 127). In the post-Dayton setting, gender identities are being reconstructed, reconfigured, and redefined through an interaction between the liberal peacebuilding discourse with its transitional justice ambitions and nationalism, culture, and religion. The intimate link between gender and nation-building post-Dayton has produced a form of victimized and ethnicized femininity not conducive to efforts to build a gender-just peace. The post- conflict phase has meant a backlash for women, peace and women’s rights activists strongly testify (Focus Group, Sarajevo Nov 2011). “We have seen a re-traditionalization of gender roles”. The period of war and its aftermath 5 brought with it “exclusion of women from the public space, and also the hidden discrimination within families” as one prominent human rights advocate put it. Women in BiH have seen women agency circumscribed, their space to maneuver shrunken and their calls for peace and justice unheard. The paper proceeds with a conceptual discussion on what it means to engender transitional justice and examines gendered justices gaps. From this follows a discussion and conceptualization of agency, which situates a critical and creative women agency in time and space. Then an empirical analysis of gendered transitional justice gaps in BiH follows focusing particularly on women agency, the presence of women and the spaces where women agency is exercised. The paper concludes with a final discussion of the implications of gendered justice gaps for the transformation towards a gender-just peace. 2. ENGENDERING TRANSITIONAL JUSTICE THROUGH ENHANCING AGENCY Transitional justice can no longer be understood as a “neutral” field preoccupied with jurisdiction, but rather as a platform for realigning power and legitimizing certain narratives, structures and actors (Moon 2008). A gendered reading of the transitional justice project raises critical questions concerning the quality of the peace one hopes to achieve in transitional societies. So far, mainstream transitional justice and peacebuilding practices have tended to re- entrench gendered hierarchies, ignore women, or limit their presence to being passive victims in need of protection. Despite an increased focus on mainstreaming gender in these processes, we have limited knowledge about the presence, participation and multifaceted practices of (critical) agency of women in doing justice and building peace. Women’s agency is often ignored, deemed without importance or misrepresented. Representations of female agency in post-conflict processes tend to obscure the subject and transform her into an object that is “allowed” to perform a scripted agency of being for example a “victim” (of sexual violence) or a “vessel” containing nationalistic pride or hurt. Critical scholars have since highlighted that the preoccupation with sexualized violence has had the by-effect of locking women into the role of passive victims, and has obscured other forms of gender-based violence against both men and women (Engle 2005; Campbell 2007; Beltz 2008; Manjoo and McRaith 2011). 6 2.1. MAPPING THE GENDERED PEACE AND JUSTICE GAPS In the last decade scholars have started to unveil how the boundaries of transitional justice in plural ways exclude women’s experiences and needs (e.g. Bell and O’Rourke 2007; Osterveld 2009). The legal standards, which are the foundation for transitional justice mechanisms, and the processes by which these mechanisms are designed, tend to be gender-biased. This is a consequence of the male domination of peace negotiations where contemporary transitional justice mechanisms often are set up as part and parcel of the peace accord that establish the new post-conflict order. However, the absence of women from these formal negotiations does not equate with the absence of women’s demands for accountability, acknowledgement and reparation. This said, what exactly does it mean to add gender justice to the discussion about transitional justice mechanism. 2.1.1. ACCOUNTABILITY As a core aspect of transitional justice, accountability mechanisms are set up in order to end impunity, increase security and change values through the prosecution of individual war criminals. Its central functions can be defined as retribution, deterrence and expressivism (Drumbl 2007). Through its retributive function accountability measures provide a formalized type of revenge, meting out punishment of criminal acts that have been committed by individuals. Its deterrent purpose is to discourage criminal behavior after war has ended and lessen the influence of war criminals. Its expressive function includes the moral imperative to put an end to cultures of impunity and show that such crimes will not be tolerated in the new post-conflict order where other values are to be (re)-established. In this sense accountability measures are bestowed a transformative, norm-generating role (Drumbl 2007: 73f; Teitel 2000). Accountability mechanisms are set up in order to end impunity, increase security and change values through the prosecution of individual war criminals. The purportedly neutral and objective character of legal measures is undermined by inherently subjective demarcations of what constitutes a crime and who is regarded as a victim (Franke 2006). These lines have until recently excluded crimes concerning gender-based sexual violence. Important steps have been taken over the last decade to begin addressing this gap and a new legal framework that recognizes gender-based violence has developed, now permanently installed in the statutes of the International Criminal Court 7 (ICC).1 While the legal framework is a central building block for narrowing the accountability gap, cultural values and norms mean that gender-based sexual violence continues to be marginalized or ignored. The lack of protection of female witnesses and lack of understanding of the often staggeringly great social prize women have to pay for witnessing have been pointed out as important obstacles. The few convictions worldwide concerning these crimes indicate that impunity is widespread and that the implementation of legal frameworks in domestic contexts is slow (O’Rourke and Bell 2007). The overall presence of women in legal proceedings is low, and when they do testify, it is primarily in cases concerned with sexual violence. While gender- based sexual violence constitutes a large and destructive part of the harms suffered by women, they have also been the objects for other types of war crimes. The sole focus on women as victims of sexual violence reduces women’s experiences of war and violence to only one aspect, meaning that women’s plural experiences are largely missing from the legal history that is being written (Buckley-Zistel and Zolkos 2012: 2). 2.1.2. ACKNOWLEDGEMENT Accountability mechanisms are complemented by tools for acknowledgement. They aim to provide a space for victims, clarify the events during conflict and detail the pattern of human rights abuses. In the long run it aims for reconciliation by providing space for plural accounts of the past, and laying to rest contentions over past events. While acknowledgement measures tend to stress the individual victim’s experiences, its peacebuilding function is primarily concerned with the collective dimension. Central for this endeavor is the construction of a shared narrative of the past – as such acknowledgement can be defined as “what happens to knowledge when it becomes officially sanctioned or enters into the public discourse” (Cohen 2001: 224). The most popular tool is the fairly recent phenomenon of truth commissions. Close readings of truth commissions have revealed that women’s experiences and agency are excluded or marginalized. A highly gendered script has emerged from platforms such as truth commissions as the “asked-for” stories have to a large degree centered on men’s narratives and muted women’s experiences (e.g. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 The Rome Statute of the ICC explicitly defines sexual and gender-based violence as crimes against humanity (article7g) beyond the act of rape; war crimes (article 8.2xxii) and to a certain extent as genocide (article 6d). 8 Ross 2002; Coulter 2008; McDowell 2008: 337). Such gendered silences distort the historical record and entrench impunity (Ni Aoláin et al 2011: 184f). Beyond the institutionalized acknowledgement processes of truth commissions, acknowledgement is sought through commemoration practices including museums and memorials remembrance days as well as public, discursive practices such as public apologies by leaders. Museums and memorials are becoming increasingly important ingredients in the transitional justice package and attract outside donors and policymakers (Hamber et al 2010) but the emergent focus on commemoration as part of transitional justice has so far hardly generated any studies of its gendered implications (McDowell 2008 is an exception). The materiality of museums and monuments is sometimes read as solid statements about the violent past, however it is increasingly recognized that they are highly charged sites where cultural values are (re)inscribed. Often centered on idealized masculinity, they enroll images of women in the service of a patriarchal, (ethno)nationalist post-conflict order. The image of “woman-as-victim” functions as a vessel of a nation’s pride as well as hurt (McDowell 2008: 337; Yuval-Davis 2008). In this process the multiple roles that women may perform in wartime are erased – as fighters, as peacemakers and as providers of security, food and shelter (Meintjes et al 2001). 2.1.3. REPARATIONS The right of individuals to reparation for the violations of human rights in violent conflicts has been increasingly recognized in international law and it is also a growing theme of research (Rubio-Marín 2006; de Greiff 2006). Rubio- Marín and de Greiff (2007: 321) find that “reparations are best conceptualized as rights-based political projects aimed at giving victims due recognition and at enhancing civic trust both among citizens and between citizens and state institutions”. Reparations are thus rights-based claims and they may be the most “tangible manifestations of the efforts of the state to remedy the harms victims have suffered” (de Greiff ed 2006: 1-2). The connection between reparation, reconciliation, acknowledgement and healing is complex but undeniable and thus reparation delayed is healing retarded (Orr 2000). The basic distinction in reparations programs is between material and symbolic benefits of either individual or a collective nature. Material reparations take different forms and shapes including for example individual financial compensation, restitution of material goods and access to services such as 9 education, health-care and other measures necessary for the rehabilitation of the victims. Symbolic reparations may include official apologies, change in names of public spaces, establishment of dates and places for commemoration. Reparations programs differ in scope (that is the total beneficiaries it covers), completeness (the categories the programs are able to cover), comprehensiveness (crimes and harms that lead to reparations), complexity (the diversity of benefits), internal and external integrity or coherence finality and munificence (de Greiff 2006) as well as transformative potential and openness (Rubio-Marín 2009: 12). Increasingly, reparations are understood to be not only a juridical question but also a political one. Reparations is a means to provide individual remedy to the victims of the rights infringed, but it is also recognizing victims as citizens and equal rights bears, as well as an act of assertion of these rights themselves, and an exercise of constructing and validating the legitimacy of the political order that respect and uphold such rights. Reparations have of late received a lot of attention as a tool to re-adjust socio- economic consequences of war and thereby broaden the scope of transitional justice to also encompass long-term development (Couillard 2007; Rubio- Marín and De Greiff 2007; Bernstein and Seibel 2011). It requires attention to the social and economic dimension of violence, including the feminization of poverty that war often brings, and the potential of transitional justice to address it (Valji 2010). Reparations thus hold the promise to transform gender relations in society at large (O’Rourke 2008; Grina 2011). Yet, reparations programs have not been designed with an explicit gender dimension. Feminists continue to point out that war to peace transitions often fail to do justice to the victims of sexual based violence. The gendered nature of sexual violence and its continued social, psychological, economic impacts reinforce inequality beyond the peacebuilding processes. Thus programs for reparations for victims of sexual violence in conflict could figure as a special category in state reparations programs. However, gender bias construct normative and practical barriers prevent women to access the benefits of such reparations programs. Reparations programs, like many other transitional justice mechanisms for redress and recovery continue to be largely gender-blind. Thus, there are few reasons according to Rubio-Marín to believe that such programs will expedite and assist the achievements of the principal goals of reparation, including recognition, civic trust, and social solidarity between men and women, which is 10 intimately linked with building a just and peaceful foundation for a transitional society emerging from violent conflict (Rubio-Marín 2009).2 2.2. GENDERING AGENCY Transformation calls for a deeper understanding of agency and the role that critical agentive subjects play for change. Agency as a concept is often referred to in critical peacebuilding literature, yet seldom theorized. In its most basic meaning, agency has to do with the human capacity to act; a capacity that is not exercised in a vacuum but in a social world in which structure shapes the opportunities and resources available in a constant interplay of practices and discourses (Giddens 1984, see also Cleaver 2007). The relationship between structures and agents is highly gendered, as our identities are performed and narrated through certain norms and practices that uphold gendered hierarchies, creating a “matrix of intelligibility” that circumscribes and prescribes what is a “liveable life” (Butler 1999: 24). The mapping of the peace and justice gaps above indicates how gendered practices enable or restrain what type of agency individuals can exercise; to what extent differently placed agents are able to exert influence and whether they partake in the endorsement and acceptance of unequal relations and structures; as well as how agentive subject’s narratives of intentions and desires are read and interpreted. By gendering agency we get access to an understanding of these dispositions. 2.2.1. CRITICAL AGENCY – REACTIVE AND ACTIVE The exercise of agency involves mutuality and interdependence as well as relations of domination and subordination. The two are mutually implicated (Rao 2003; Shepherd 2012: 6). Within these relations multiple degrees of more or less reflexive agency is exercised. On one end of the spectrum, self- disciplining agents accept and even endorse relations of inequality as they enroll in projects of others and internalize hegemonic norms (Foucault 2000). At the other end of the spectrum, agents exercise their critical agency to challenge power relations, question existing norms and practices, challenge inequitable distribution of resources and claim and extend their rights. In feminist research women’s agency has often been equated with intentional resistance (Ahearn 2001: 115) and the search for the critical agent within !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 One example is the reparations program recommended in the final report of the Truth, Reception and Reconciliation Commission in Timor Leste (CAVR) lists gender equity as one of five guiding principles that guides the reparations program (Rubio-Marín and de Greiff 2007) 11 critical peacebuilding research has mostly taken an interest in intentional acts of resistance. These contributions have been valuable in making visible agents “in the margins” (e.g. Richmond 2010). However, a sole focus on resistance limits our understanding of agentive critical subjects, as they move within an intricate web of embedded power relations. Their agency can “include everything from outright rebellions at one end, to ... a kind of complex and ambivalent acceptance of dominant categories and practices (Ortner 2006: 144). Hence there is a danger in defining agency only as a form of intentional resistance. We stress that agency should not only be understood as overt political action, but must also conceptually encompass what we do as we go about our daily lives making meaning, pursuing desires and intentions and our own “projects that infuse life with meaning and purpose” (ibid, 145). From this follows that, while agency may be constrained and marginalized, there is no such thing as “absent agency.” It has bearings on how gendered agentive subjects not only have the capacity to react to structures of domination, but also to act and enroll in projects of their own, and how they both react and act in relation to socioculturally mediated structures. Such a reading of women’s agency resists the temptation of reducing agency to (western) ideas of the autonomous subject, thereby “(i)nscrib(ing) the desire for liberal agency into women of the ‘South,’” which may lead to the ignoring of women whose agency may be exercised in other spaces and in relation to a different set of dispositions (Auchter 128: 2012: 128). We hence use the term critical agency to encompass both active and reactive agency. It acknowledges agency’s reflexive and creative character, yet we neither understand agency as necessarily an individualistic project, nor solely as a project of resistance. 2.2.2. SITUATING AGENCY The agentive subject is always situated. We therefore need to think more closely about the spaces in which women’s agency is exercised. Our interest in this paper lies in transitional justice “from below.” It means searching for women’s agency beyond organized (political) space, and listen to the “whispers in the margin” that may have transformative effects. We do know that in post-conflict settings women agents are often active in informal spaces such as civil society, and less often take part in formal spaces for decision-making. The spaces where women perform agency are often 12 ignored, belittled or marginalized, hence women face double exclusions based on both a gendered bias as well as a bias against civil society (e.g. Meintjes et al 2001; Wanis-St. John and Kew 2008: 13). Critical questions must also be asked around how agency is restrained or enabled within these spaces, as informal as well as formal spaces are imbued with power relations and hierarchies that may mute people (Gaventa 2006; see also Mannergren Selimovic et al 2012). An effect of this blindness is the shutting out of the “domestic sphere” as irrelevant for peacebuilding research. However the private-public divides are “ideological constructs” that delineate spaces and persons as well as activities in ways that shift over time. Further, an individual may be quite powerful in one realm and less powerful in another (Mosedale 2005: 251). We need to explore how restraints on women’s agency in the domestic sphere are upheld through norms of patriarchy and/or continuities of violence, and how these constraints travel to the public domain affecting the role women may play there. An analysis of gendered agency in peacebuilding and transitional justice must therefore transcend divides such as domestic/public and informal/formal, thereby making visible the micropolitics that many women engage in for addressing and coping with the deep contestations in “the ordinary” that shattering violence has inscribed (Das 2007). Such a reading opens up for an interest in the everyday ”doing” that resonates with the understanding of agency as both active and reactive. 2.2.3. AGENCY IN TIME Temporality is an important aspect for understanding how women’s agency is played out over longer time, how gains may go backwards, how progress may be reversed and how windows of opportunity may open for women’s agency at unexpected moments. The space for women’s agency often expands during times of upheaval such as conflicts when embedded power structures shift and adapt to new demands (Yuval-Davis 2008: 171). As the case of BiH aptly illustrates, the closing of such windows may be abrupt during the aftermath. Patriarchal, nationalist and religious values and norms have established a far from gender-just peace with shrinking political space for women (Björkdahl 2012; Cockburn 2013: 127). An analysis of agency in relation to gendered gaps of peace and justice must relate to the temporal aspect, as mechanisms of transitional justice are intimately linked to notions of development and the temporal move from war to peace through the implementation of certain measures for accountability, 13 acknowledgement and reparations. A gender analysis of how women’s agency may actually shrink as peace proceeds opens our understanding for the fragile assumptions such projects rest upon, and how a lack of gender awareness may in effect create space for conservative backlashes, stripping women of agency and closing off spaces for informal agency. Fundamentally, without an understanding of the temporality of agency it is hard to understand what restrains and enables transformation. Bringing in time as part of conceptualizing gendered agency makes it possible to approach the underlying objective of this paper, which is to further critical thinking on transformations towards gender-just peace. We have here raised, and inevitably left unanswered, a number of questions about agency. When we now move to the empirical part of the paper, which analyses gendered peace and justice gaps in BiH, we will attempt to approach at least some of these queries. 3. GENDERED PEACE AND JUSTICE GAPS IN BIH During the 1992 – 1995 war BiH witnessed large scale violence and war crimes, ethnic cleansing and displacement, mass rapes, sexual torture, sexual slavery and other forms of sexual violence directed against women, men and children which resulted in an estimated 100.000 deaths, 2,2 millions refugees and internally displaced persons and 20,000 victims of rape and other forms of sexual violence. War survivors want to know the truth about the conflict, need to see that their experience of the war is acknowledged, and that the harms suffered is recognized. They need to see that justice is being done in order to build their lives in peace. The BiH transitional justice process is slow and arduous, and constantly hampered by the ethno-nationalist centrifugal powers with little agreement on the past, present or future. The transitional justice is now moving from mostly being an external affair with the International Criminal Tribunal for Former Yugoslavia (ICTY) as its central mechanism to an internal domesticized process as The War Crimes Chamber of Bosnia’s State Court is picking up speed and war crimes are also being processed at entity levels. The new National Strategy for War Crimes Processing aims to process all war crimes until 2023. It is complemented by the Transitional Justice Strategy, which is in 14 its draft stage and focuses on truth seeking, reparations and reform of institutions3 (Impunity Watch 2012: 8). Despite the fact that BiH has an institutional structure for gender mainstreaming most of the transitional justice programs are not gender- sensitive. The Gender Equality Agency and two entity-gender-centers have the potential to advance gender awareness and push towards a transformation of post-conflict BiH in a direction of increased gender equality. BiH was the first country in the region to adopt a National Action Plan for the Implementation of UNSCR 1325. In addition, BiH has adopted a Gender Action Plan (GAP) 2006-2010 and a five year financial mechanisms for its’ implementation (FIGAP) (Impunity Watch 2012: 63). These programs aim to increase gender mainstreaming both in public and private spheres. Women have a strong presence in the Expert Working Group that drafted the Transitional Justice Strategy for BiH. Yet practical progress on these issues is still limited. Lack of political will is the common explanation for why transitional justice processes have not been made gender-sensitive. Thus, the legal framework of Bosnia and Herzegovina has not addressed the issue of the gendered gaps concerning accountability, acknowledgement and reparation in an adequate manner. Public awareness and interest, as well as overall social status of the survivors of crimes related to sexual violence in conflict, is at a low level. The phenomenon of conflict related sexual violence is still perceived as a private matter, even though it is formally recognized as a public problem and a human rights issue. Despite the progress BiH has made in terms of advancing human rights and gender equality, the women survivors of conflict related sexual violence are still not sufficiently protected, and their rights guaranteed by the BiH laws are not fully respected. The high level of violence registered in the present day Bosnia and Herzegovina, which can to a certain extent be traced to the experience of violence during the conflict or its legacies, seem to manifest itself in increased and more severe cases of domestic violence enhancing women’s sense of vulnerability and lack of rights (UN, 2012: 18). A number of paradoxes come to the fore illustrating women’s sense of injustice. First, the number of war crime cases that involve sexual violence that have been prosecuted are extremely low, while at the same time the fight of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 There is also a state-level law on Missing Persons. Also in its draft stages is a programme of assistance for women victims of war rape, sexual violence and torture 2013-1016. 15 impunity remains a top priority. Second, the victims of conflict related sexual violence remain socially and economically marginalized, and there is no comprehensive reparations program to redress the human rights violations. Third, complicated legal framework, institutional complexity and the absence of rights for victims of wartime rape imped access to care, while at the same time there is a great awareness that unhealed war traumas lead to deterioration of survivors wellbeing and health. Fourth, state service for victims of conflict related sexual violence has at large been absent and in the mean time women organizations have stepped in to assist the victims. Thus the gendered accountability gap, acknowledgement gap and reparations gap remain to a large extent, as do the patriarchal, religious and nationalist discourses that imped efforts to address these gaps. 3.1.THE ACCOUNTABILITY GAP 3.1.1. GENDERED POLITICS OF ACCOUNTABILITY IN BIH The accountability process in BiH has to a large degree been defined by the ICTY, which began its proceedings in 1992 when war was still ongoing. The convictions for rape as a crime against humanity in the ICTY have been seminal for the development of international law, and some key individuals have been convicted for their crimes (ICTY 2001; 2007), Nevertheless, the general recognition of these crimes in BiH has overall been very low, partly because the ICTY’s verdicts have been used by ethnonationalist entrepreneurs to entice divisionism and the tribunal’s work is therefore read as inherently biased (Delpla 2007; Mannergren Selimovic 2010). As the ICTY now moves to a close, the domestic legal system in BiH is taking over responsibility for the postwar accountability process through The War Crimes Chamber of Bosnia’s State Court, as well as courts at the subnational entity levels. A gendered analysis of its work so far raises serious concerns. The domestic system has generated only a couple of convictions and a handful of ongoing trials and the legal framework is inconsistent with international standards and jurisprudence of international courts.4 One such consistency concerns the whether the use or threat of force has to be present in order to prove that the act was not consensual.5 Contrary to international jurisdiction, this is the case in Bosnian law (United Nations, 2012). The need to prove the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 The complexity of the justice system in BiH means that two criminal codes are in use with sometimes contradictory approaches (Impunity Watch 2012: 41). 5 Articles 172 and 173 in the Criminal Code of BiH. 16 use or threat of force lead to interrogations into the sexual conduct of the witnesses before and after the crime. As reported by the legal monitoring organization TRIAL, many women testified about “the tendency to interrogate the conduct of the victim in ways that are humiliating and legally irrelevant” (TRIAL 2012: 461). Henry’s words that we repeatedly … “see the replication of denial, minimization, and disbelief where victims of wartime rape are concerned” without doubt ring true in the Bosnian context (Henry 2010: 1101). It is not rash to say that the international gains concerning the criminalization of conflict-related sexual violence are not gained permanently, but rather under constant negotiations, an important observation that should feed into analyses of relationships between the ICC and national jurisdictions. Another aspect of the gendered accountability gap concerns the structural conditions for women’s participation in these trials. Prevailing insecurities partly due to the impunity of war crimes means that women take certain risks. Several witnesses have been threatened and programs for witness protection are either non-existent or very marginal. Witnesses have had to share waiting rooms at the courts with the accused and in some cases, their identities have been leaked despite guarantees of anonymity (TRIAL 2012). Another marginalizing factor is the vulnerable economic situation that many Bosnian women face. As witnesses are not reimbursed for their travels to court, and as the court system often fail to provide information about the right to claim for allowances, the economic burden may be yet another discouraging factor for women to take part in criminal proceedings (Impunity Watch 2012). These types of justice processes can provide women not just with relief but also wounds. By coming forward to testify Bosnian girls and women bring social shame on themselves and their family. Whatever good that may come out of the ordeal is offset by the risks of being met with incredulity, being blamed for the rape or having their experiences trivialized (Hunt 2004: 177- 179). The long-term consequences of being ostracized in their communities combined with on-going threats and feelings of insecurity may prove too overwhelming for many women (Focus Group Sarajevo November 2011). 3.1.2. RECOGNIZING FEMALE WITNESSES AS AGENTIVE SUBJECTS Despite these difficulties, Bosnian women and girls have taken on the challenge and exercised effective and multifaceted agency in criminal proceedings concerning BiH with tangible results. Their testimonies at the ICTY, coupled with women’s groups’ international advocacy campaigns and 17 the work of key individuals in the courts, have had lasting impact on a global scale. This agency continues today, but now in places far away from international spotlights as women victims sit in Bosnian courtrooms to face accused perpetrators. They are agents “from below” that step into the formal spaces of courts to exercise their agency, often in the face of economic and physical insecurity as well as cultural restraints. They often come to these trials on their own in defiance of the wishes of their families; many travel in secret, a few with support from women’s groups, others utterly alone (Focus group Sarajevo November 2011). Given the high social prize that those women who do testify pay, one must ask what entices them to actually take part in these processes. Their choices to participate in accountability mechanisms and demand justice for crimes committed against them in the face of certain social repercussions, is an example of critical agency that we contend has often been misrepresented and misunderstood, as a consequence of narrow configurations of what women’s agency entails, coupled with a general disregard for the victim within criminal proceedings (Stover 2004). The perpetuation of the stereotype of “woman-as-victim” has been an unfortunate effect of transitional justice’s preoccupation with women (solely) as victims of sexual violence (Campbell 2007). An added stereotype is the prevalent idea that women testify in criminal courts with the main focus to help their own very personal “healing” (Mertus 2000; 2004). While many victims no doubt seek personal closure by testifying in courts, such a frame is too narrow to encompass the multiple reasons for women to testify. We here want to highlight the court as a site for victims to exercise critical and creative agentive subjects, and address not only the perpetrators but also take on the challenge of the deep-seated patriarchal norms that is an on-going feature of their lived experiences of the post-conflict everyday. In a rare report based on interviews with female witnesses in BiH, it is concluded that the respondents were not primarily focused on their own personal healing. The strongest reasons for giving testimony among them was “to make the perpetrator accountable for what he did and to see him punished, to prevent other women and girls from being raped, and to tell ‘what really happened’ (Medica Mondiale 2009: 52). They also wanted to act against impunity and increase security: “I decided to testify to protect our children… We had to testify in order to remove war criminals from the streets.” (ibid, 54). 18 Finally they wanted to contribute to far-reaching transformations of underlying societal values: “These person cannot be idols and role models to future generations. The only way to prevent this is to reveal the truth about them” (ibid, 55). Through the construction of woman-as-victim, women’s critical agency in these proceedings has been narrowly interpreted in a way that may obscure and render her political work invisible. The constraints on women’s agency within criminal accountability mechanisms are numerous. In order to narrow the accountability gap these restraints need to be lifted. The fact that legal gains made in the international system have not fully travelled into the domestic system in BiH, is a further imperative to monitor how possibilities for agency may close in time as well as in space. 3.2. THE ACKNOWLEDGEMENT GAP 3.2.1. GENDERED POLITICS OF ACKNOWLEDGEMENT IN BIH Post-conflict acknowledgement processes are driven by the desire for an inclusive narrative of the past. While the overarching goal may be to contribute to reconciliation, the struggle around what is to be remembered and what is to be forgotten is a highly contentious and gendered process whereby power relations are produced and maintained. In deeply fractured post-war BiH, claims for acknowledgement are interpreted as part of ethno-nationalist reconfigurations of the political. As a consequence, several attempts to organize a national truth commission have failed (Kritz 2002: 60f; Freeman 2004: 7f), political elites routinely protest any verdict by the ICTY that infringes on their own version of the truth (e.g. Mannergren Selimovic 2010, 2011) and commemorations are highly politicized as the different “sides” of the conflict celebrate their own “war heroes.” Suggestions by women peace organisations to create a “Victim’s Day” - a day when survivors would join across ethnic divides and together mourn innocent victims from all sides - have been vehemently turned down by political entrepreneurs on all sides (Focus Group, Sarajevo November 2011). Reconciliation projects are on-going as local projects but without any bearings on national and entity levels. As the struggle continues over who was a victim and who was a perpetrator, the intertwined representations of gender and nation have distorted and rendered women and women’s experiences and agency invisible (Zarkov 2007). While the particular harms suffered by women in the Bosnian war – as rape 19 victims – have been turned into an internationally emblematic image of that war, these experiences have been silenced in the national and local context, only invoked in the abstract as a symbol of the nation’s collective hurt and suffering. 3.2.2. AGENCY FROM BELOW - RESISTING SILENCE However, despite these restraints, women have attempted to break these silences. A specific event in the Bosnian context serves to illustrate the writing out of women’s experiences, and how women “from below” exercised critical agency by attempting to challenge these blanks and demand acknowledgement of women’s experiences. In 2004 a group of women travelled together to the small town of Foca in Republika Srpska, during wartime the site of several rape camps. The crimes committed there have in detail been documented through the ICTY proceedings and the verdicts from these trials were seminal in stating that conflict releated sexual violence may constitute a crime against humanity (ICTY 2001; 2007). Nevertheless, the rape camps and the crimes that were committed there are erased from the public discourse as well as from the physical space. The white “Partizan” building where women and girls were imprisoned is situated in the town centre. An anonymous building used for sports and cultural activities, nothing marks it as a site where crimes against humanity have been committed. Close-by, an impressive monument commemorates the fallen Bosnian Serb soldiers from the area6. Some of the women who embarked on the bus journey to the town in 2004 had been held prisoners there and they had returned with the aim of putting up a commemoration plaque on the Partizan building. When the group of about ten women arrived to the site, they were turned away by police on the official grounds that they did not have a permit. Inhabitants congregated around them, throwing stones and shouting abuse (BBC News, 2004). Recalling the event some years later, one of the women who had been part of the protest commented: “They did not want us there… They were afraid, they just wanted us to disappear, to shut up…. But we only wanted to acknowledge the victims. We did not take anything from them. “ (Interview Sarajevo 2008). The vehement reaction to this demand for inclusion in the official discourse has many layers. The women challenged the highly ethno-nationalist tale of victimhood among Bosnian Serbs. At the same time as they disrupted the image of the heroic soldier (commemorated only a few metres away), they !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 Mannergren Selimovic conducted fieldwork in Foca during 2008-2009. 20 unsettled stereotypes of the silent and passive female victim. The demand for physical recognition was an act that not only concerned the particular victims in the Foca camp, but also insisted on an overarching story of the war, its perpetrators and victims, of far greater complexity than the highly polarized narratives spun around the twin structures of nationalism and patriarchy. This was not only unsettling for the “other side” whom they openly challenged through their action - it may be noted that neither did they get any public support for their actions from their “own side” (Interview Sarajevo 2008). 3.2.3. BREAKING THE SILENCE IN UNEXPECTED SITES The critical agency exercised by the former victims in Foca did not yield any direct results. Public silence still engulfs the specific rape camps in Foca. Nevertheless, the process of opening up “the story of war rape” at a more general level is slowly developing – but in sites that we normally do not think of as part of transitional justice. In BiH it has been foremost a process driven by actors within popular culture and a critical debate around the invisibility of the conflict-related violence has been expressed in fictionalized form. The Bosnian film Grbavica (English title Esma’s Secret - Grbavica) released in 2006 and directed by Jasmila Zbanic is about a rape victim who deals with post-war life in Sarajevo as a resourceful but struggling single mother. The role turns the nameless victim into a subject dealing with the on-going consequences of the crime and as the film also criticized and complicated the post-conflict state’s celebration of its heroes, it led to some public debate (Dogwoof Pictures, 2006). The recent international film production In the Land of Blood and Honey (directed by Angelina Jolie), which frames the topic of the rape camps with a love story across ethnic borders, sparked a lot of controversy, which in itself opened up a debate on the voice of rape victims, raising contentious questions around who could speak for them and who had the right to control their story (The Guardian, 2011). This observation encourages further thinking of cultural engagements as a potentially fruitful and little explored aspect of transitional justice in a broad sense. Both these fictional accounts have complicated and challenged the narrow role for women in the post-conflict context. Clearly, we need to look beyond “acceptable or ‘appropriate’ victimhood for women” (Ni Aoláin et al 2011: 180) to identify expressions of critical agency that refute essentialist configurations of gender and nation. A deepened understanding of the 21 gendered dimension of ethno-nationalism is hence needed in order to grasp how acknowledgement processes can come to fully encompass women. 3.3. THE REPARATION GAP The gendered reparation gap that we notice in transitional justice programs conceived as redress for gross human rights abuse are caused by a gender bias inherent in many rights system (including human rights law). This gender gap is magnified by the absence of women in the design and implementation of reparations program, and the lack of engendered reparations are a cause of major concern as such reparations programs will inevitably reproduce gender biases, and compound gender hierarchies of post-conflict societies. The right of individuals to reparations for gross human rights violations in violent conflicts is part of the shift in transitional justice from a focus on perpetrators to the needs of victims. Reparation also holds the promise of transformation of pre-existing order if individual rights are linked to a broader political project, such as engendering peace and justice of the post-conflict order. So far the engendering of transitional justice has for the most part had little impact on the design and implementation of reparation programs in BiH. Given that women represent a large proportion of the victims of contemporary conflicts such as the one in BiH, and women experience conflicts in different ways, reparations programs need to be designed to redress women more fairly and efficiently while also seeking to subvert gender hierarchies that often antecede the conflict. When asked what their preferred type of compensation is victims of conflict-related sexual violence in BiH tend to answer that they prefer services that meet their and their families’ basic needs over the restitution of lost property or monetary compensation. 3.3.1. REPARATION PROGRAMS IN BIH The question of reparations for victims was neglected by the ICTY (Nollkaemper 2009: 204) and BiH does not have a comprehensive reparations program at the state-level to redress human rights that have been violated (Martin-Ortega 2012). As far as reparations-related legislation is concerned, the Law on Missing Persons, which regulates the right of civilian victims of war to compensation, is the only such law at the state-level. Entity level legislation7 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7 In the Federation of BiH legislation regulates including Law on Principles of Social Protection, Protection of all Civilian Victims of War and Protection of Families with Children, 22 regulates war related benefits for veterans and civilian victims such as payments and disability pensions paid on basis of social and economic status (Impunity Watch 2012: 74).8 The draft of the Transitional Justice Strategy for BiH holds, in addition to gender provisions, two distinct approaches to reparations: A victims’ centered approach through activities that consider recognition of victims’ suffering, regaining of their dignity and re-socialisation through redress for past injustice; and a development approach for building capacity to provide services to victims, compensations and rehabilitation (psychosocial support, employment and organizing socio-cultural and sport activities).The drafting process has taken in the efforts of the CSOs in this field and suggests measures for institutionalization of their programs of reparations. Still, a comprehensive reparation program where all victims of sexual violence in conflict are eligible based on their rights being violated is lacking. In fact the victims of sexual violence in conflict are not recognized as such by any existing law. Progress is visible though. As the first post-conflict society BiH, however, provides rape victims with a monthly pension (Calypkan 2007: 54). In patriarchal societies this is a method preferred to a lump sum cash benefit as it is seen to enhance women’s agency, and the money is more likely to be spent by the victim than by her relatives (Dugan and Jacobson 2009). In many ways the distinction between compensation payments, veteran benefits and welfare payments are blurred. Most women are not aware of the difference between compensation for war crimes and welfare assistance, as the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Law on the Rights of War Veterans and Their Family members. In Republika Srpska legislation include the Law on Protection of Civilian War Victims of Republika Srpska and the Law on the Rights of Veterans, Disabled War Veterans and Families of Soldiers fallen in the defensive and Fatherland War of Republika Srpska (Impunity Watch 2012: 49-50). The United Nations Population Fund (UNFPA) is currently working together with the BiH Ministry for Human Rights and Refugees on drafting a Program of Assistance to Women Victims of War Rape and Other forms of War Sexual Violence. The ambition is to develop a decentralized scheme forging cooperation between victims associations, centers for social welfare and mental health and cantonal/district/municipal courts and authorities in order to provide efficient and timely service and assistance to the victims (Conference report 2012; Impunity Watch 2012: 50). 8 The government system for compensations to war victims in BiH is complex and the recipients are categorized into four categories: 1) disabled war veterans, (military payment) 2) payments to families of fallen or missing soldiers, (military payment) 3) payments to civilian victims, 4) payments to families whose members where killed or disappeared during the conflict. Out of 11.000 recipients of civilian payments only 621 were victims of sexual violence in Federation of BiH. In RS 3.843 persons were recipients of civilian payments (probably including victims of sexual violence in conflict but no specific category for this) compares with 69.451 persons receiving military payments. 23 link between war and poverty seems self-evident to most women. Women are thus constructed as poor and vulnerable victims that need assistance. Not as recipients of reparations to right a wrong. This of course means a devaluation of women’s wartime experience and it diminishing their ability to exercise agency to shape their own post-war existence. Reparation programs and policies in BiH are designed in the political sphere, a space few women have access to. Women are frequently more active in informal spaces but such spaces where women exercise their agency are often ignored in the processes of shaping reparations programs. However, by opening up a space for participation women can contribute to the design and implementation of reparations programs in order to make them better addressing women’s needs and concerns i.e. making reparations gender- sensitive. Such a space may offer women a reparative sense of recognition both as victims and as valuable agents of political and social transformation (Rubio- Marín and De Greiff 2007: 324). So far, there is room for improvement at all levels of the complex governance system in BiH for such ‘space-making’ efforts. 3.3.2. THE GENDERED POLITICS OF REPARATIONS In BiH it is increasingly recognized that the right of reparations in the aftermath of gross human rights violations cannot merely be understood in juridical terms as it may have implication for gender-relations in post-Dayton Bosnia. “When reparations are thought of as part of a political project of (re)creating a more legitimate, democratic and inclusive political order, rather than of reverting to a broken past, they open a window of opportunity– even if small– for women to endorse forms of reparations that depart from settled practices and norms that are so frequently part of pre-existing hierarchies” Rubio-Marín and de Greiff (2007: 325) suggest. Contrary to expectations, the issue of reparations has played a negative role in the reconciliation process in BiH. Particularly in terms of defining victims and beneficiaries of reparations, which is a major challenge in post-conflict societies where resources are scarce. First, determining the boundaries between victims and perpetrators is deeply contested and thereby identifying eligible claimants is highly political as the recognition of victimhood “is viewed as a micro negotiation about the nature and causality of the conflict” (Aolíne et al 2011). In BiH, several associations for camp inmates, relatives of missing persons and women subjected to sexual violence have thus been divided along 24 ethnic lines making it difficult to come together to advocate for state-level reparations programs. Second, reparations have divided victim and survivors within the ethnic communities. Due to the particular design of the reparations programs victims of sexual violence in conflict have unintentionally been pitched against camp survivors constructing a difference between ‘majority’ and ‘minority’ victims because of program (Simpson et al 2012: 137). Reparations holds the potential to strengthen the social contract defined in the Dayton Peace Accords and support the transitions towards democracy by recognizing the victim citizens as “equal rights holders”. To some reparations can be seen as a means to utilize the (modest) transformative potential of remedy as it has “a capacity to subvert, instead of reinforce, pre-existing structural inequalities” (Rubio-Marín 2009: 17). This may be an important step in understanding the difference that gender could make when conceptualizing, designing and implementing reparations in BiH. The growing sense that sexual violence should be among the violations that deserve reparations is not all that is at stake and concerns with gender justice should be mainstreamed in the discussions about reparations. If the BiH reparation programs fail to recognize legal and other barriers to women, they reinforce rather than subvert inequalities. Rubio-Marín (2009: 66) identifies three criteria for engendering reparations: 1) avoid formal gender discrimination in the design and implementation of such programs, 2) looking for ways to ensure that patriarchal norms and sexist standards and systems of values are not leaked into reparations, 3) optimize the transformative potential of reparation programs so they advance towards a society free from gender subordination. Encouraging such transformation also suggests viewing reparations as a means to give agency to women rather than as confirming the status of women victimhood. So far, BiH has not been able to develop comprehensive gender-sensitive reparations programs as patriarchal structures are firmly in place. Women in BiH are quite active in movements for justice but they channel their engagement through human rights organizations and organizations of victims or families of victims and only more recently have they organized around gender-specific aspects of their victimization exercising agency to shape reparation programs. As a matter of fact, women have been particularly active in the filed of reparations. They drafted the Program for of Assistance to Women Victims of War Rape, Sexual Violence and Torture 2013-2016. 25 Furthermore, the development of the Programme for Improvement of the Status of Women Victims of Wartime Rape, Sexual Violence and Other Forms of Torture in BiH was designed through an inclusive and transparent process with consultations with local community and participation of key actors. 3.3.3. AGENCY AND THE TRANSFORMATIVE POWER OF REPARATIONS Women in BiH are not simply defined as victims entitled (or not) to reparations. They are agents within civil society – stepping in to perform reparations when governments fail to do. This was noted by one of the participants in a focus group in Sarajevo stating: “We never speak out about policies that the state is not willing to take up responsibility for, that is, policies to empower them both economically and socially. If you ask the victims and survivors of violence, what they need is housing ... and a job so that they can put bread on the table. But we do not fight for their social and economic problems, we can simply fight for their temporary sanctuary. We are just in a vicious circle. We are forcing the state to prosecute the perpetrators. But we do not force the state to provide the victims with housing and so on. And (the state) did not in the first place provide the foundations for them to no longer being victims at all.” (Mannergren Selimovic et al 2012: 97). Thus by asserting their presence in performing reparation programs women enhance their agency as shapers of transitional justice practices rather than as passive victims of war. Medica Women’s Therapy Centre is an example of women performing reparations. Set up in 1993 to meet the needs of women raped in nationalist ethnic cleansing campaigns in Bosnia it was a women’s project based on international-local cooperation, although all staff were Bosnians themselves war survivors. Providing medical care, psychotherapy, trauma treatment, and various other approaches to healing while promoting gender awareness Medica was assisting also a small number of traumatized male victims (Cockburn 2013: 28). Post-conflict the needs of the women clients increasingly came to include also domestic violence, ‘everyday rape’, escape from prostitution and trafficking. Medica is now part of an international movement ‘women against violence against women’. Today, Medica is recognized by the local government, depend on state funding and it has opportunities to take part in policy development. Over time it has developed a strategic partnership with state services while at the same time challenging politicians lobbying for women’s rights and provisions (Cockburn 2013: 32). Many women’s NGOs in BiH function as service providers stepping in where reparations are lacking, delayed or insufficient. 26 Reparations, as we have seen, include a variety of measures that lend it self to an array of competing meanings. When examining reparations it becomes clear that it is not only about policies and programs but also about reparations practices and when it comes to practices, women are not only the beneficiaries, but equally important the performers of reparations. Beyond the questions of what types of reparations and for whom lurks the more specific question of how to imagine forms of redress that avoid reproducing gender hierarchies, meet the needs of women and that contribute to transform societies emerging from violent conflict towards a more equal, just and peaceful society. Taking women performing reparations in post-conflict societies where the state fails to shoulder its responsibility is one avenue to explore for designing gender sensitive reparations programs that better address the concerns of women. 4. CONCLUSION – TOWARDS A GENDER-JUST PEACE The field of transitional justice has recently been enriched by a gender analysis, which in turn has contributed to problematizing the role of women in processes of doing justice and building peace. This paper adds to the project of ‘gendering’ transitional justice as it highlights women’s participation, presence and agency in these processes. We have paid particular attention to the set of gendered dispositions that exist within the transitional justice framework that may enable or constrain women agency. Though our analysis has been biased towards three particular areas of engagement of transitional justice; accountability, acknowledgement and reparations we have been able to think critically about the gendered hierarchies inherent in transitional justice processes more broadly and the analysis has revealed the creative and critical agency of women doing justice. From this we are able to distil a number of broad yet preliminary concluding thoughts. First, we conclude that women’s participation in transitional justice and peacebuilding processes is complex, multilayered and constrained yet creative, and we have been able to capture the ways in which women exercise agency in ‘the margins’, in ‘alternative’ or ‘hidden’ spaces as well as in the public, political space but there perhaps to a lesser degree. Second, to successfully address gendered transitional justice gaps, spaces for women to exercise agency must be established and women agency should not be neglected or diminished nor contained in the private sphere. Third, we also agree that transitional justice carries the potential to add to transformative peacebuilding and thus contribute to more gender equality in the post-conflict society, yet this potential is often untapped. 27 4.1. AGENCY AND THE TRANSFORMATIVE POWER OF ACCOUNTABILITY, ACKNOWLEDGEMENT AND REPARATIONS Women engage with transitional justice mechanisms as both objects and subjects. By gendering agency we have been able to better map agency and access spaces for agency ignored by mainstream transitional justice. The gendered interplay between women agency and post-conflict and transitional justice structures has been approached through the conceptualization of agency in relation to the subject, to space and to time. The concept of critical agency pinpoints the agentive subject and the active and reactive ways that women exercise agency, including but not confined to resistance. It captures the broad political changes as well as the minute dealings in the “micropolitics” of gendered post-conflict life. Situating agency advances our understanding of the diverse and sometimes hidden spaces in which women’s agency is performed, it points to the need to identify critical agents beyond formal and informal structures, to search for the agents in the margins, and listen to the silent and silenced voices. Finally bringing in the temporality of agency makes visible the opening and closing of political possibilities, the friction over time between different actors when hegemonic relations are transformed. Thinking about agency in relation to time provides tools to understand the potential for transformations and shiftings of gendered hierarchies. This conceptualization of women agency and its interplay with transitional justice has provided us with an understanding of “transitional justice from below”, in which women participate in civil society organizations dealing with “women’s issues” such as rape, domestic violence, the disappearance of family members and beyond challenging and negotiating gendered patterns and practices of transitional justice tools. 4.2. THE GENDERED POLITICS OF ACCOUNTABILITY, ACKNOWLEDGEMENT AND REPARATIONS By focusing on gendered transitional justice gaps we have been able to disclose transitional justice as a site for the long-term construction of the gendered post-conflict order. The gendered accountability, acknowledgement and reparations gaps that have been examined here seems to be a consequence of structural constraints for women to engage in shaping and implementing transitional justice. It is also suggested that these gaps have a strong impact on women’s sense of injustice and failure to realize the peace dividend. The analysis of these gaps in post-conflict BiH suggests that they emerge from a paired marginalization: the marginalization of victims within transitional justice and the marginalization of women within it. In addition, it seems that women 28 face double exclusions based on both gender bias in the transitional justice project as well as a bias against civil society, the space where women most frequently exercise their agency. Where as women have been known to be the pillars of civil society, demanding justice for their family members and put life together after the conflict, women’s groups have not been particularly engaged in shaping transitional justice mechanisms. Furthermore, the gendered gaps produce a sense of injustice. Impunity of war crimes involving sexual violence persist, women’s experiences risk being trivialized, witness protection is at best marginal, the social and economic costs of witnessing are not recognized. The harms suffered by women during the war and women’s experience of war are not acknowledged in the metanarrative of the war. Instead BiH women as rape victims have come to symbolize the victimization of the Bosnian nation and it has become the emblematic symbol of the BiH war, reproducing women as victims without agency. Interestingly, the challenge against such deeply engrained stereotypes have come from popular culture, usually not encompassed by the transitional justice debate. Filmmakers have used fiction to force the issue of conflict related sexual violence into public discourse, and in this process disrupted “appropriate” images of female victimhood. Reparations programs are not designed to redress women or subvert gender hierarchies and victims of conflict-related sexual violence continue to be socially and economically marginalized as the state fail to provide sufficient reparations. Furthermore, it seems as if these three gaps reinforce each other and exclusions in one area travels to the next - i.e. when women are written out of the new narrative of the post-conflict nation, it is hard for them to make claims for reparation, and when impunity for crimes against women in conflict is not addressed, women’s suffering is not acknowledged. Thus we conclude that the gendered accountability gap, acknowledgement gap and reparations gap remain upheld by the patriarchal, religious and nationalist discourses that imped transformation towards a more gender-just peace. 4.3. TOWARDS A GENDER-JUST PEACE A gender-just peace is peace and justice cognizant and inclusive of the gender. A critical gender approach to peace develops a positive epistemology of peace incorporating both gender critiques and gender-sensitivities in order to develop an understanding of alternative social and political ontologies of peace (and barriers to them). This approach offers a positive epistemology of an emancipatory peace with space for agents resting upon empathy and possibly 29 active care, and a concern with both institutions and everyday life. A post- Westphalian, emancipatory peace may arise through discourse gender equality. A gender-just peace is an aspirational vision associated with the idea of positive peace: a society that resolves the conflicts and contradictions within it in a constructive, just and inclusive fashion and which is thereby rendered resilient and relative resistant to mass or systemic violence. In this conceptualization of peace values such as inclusion or gender equality are an inherent and indissoluble part of peace. Building such peace then is a transformative process driven by creative, critical agents comprising, amongst other things, the promotion of women’s rights and empowerment. At the same time, the broader processes of peacebuilding and transitional justice can also be used as a means of levering social transformation. This includes providing a space where women agency can exercised thus permitting women a more prominent place in post-conflict transformation processes. Furthermore, it may address issues of identity and the idea of “reconstructing masculinities” through security sector reform, demobilization, disarmament and reintegration while also promoting a human rights agenda as part of governance and rule of law reforms. In line with the notion of positive peace, a gender-just peace strive to eradicate the socially constructed differences between women and men through transforming institutions and structures that reproduce and sustain inequality and through empowerment processes that transform both gender and social relations, eventually creating greater equality and equity between women and men within and between social groups. In such ways, rights that are not transformative by themselves can be transformed as part of a larger transformative process. While a gender analysis of transitional justice so far have led to fruitful insights, many gaps remain. The analysis of three gendered transitional justice gaps although limited demonstrate the persistence of the gendered hierarchies of transitional justice in BiH and evidently gendered justice gaps remain. As in many places, a more gender just-peace in BiH remains a distant goal. For example, we know little of the impact of such mechanisms as vetting, official policies of apology and the societal remembering and forgetting through remembrance practices. The new wave of reparations needs to be closely analyzed to understand how it affects women’s agency and socioeconomic position. Violence in the public sphere is selected for accountability while violence committed in the private sphere is ignored; a bias which tends to exclude women’s experience of the continuum of violence across conflict and post-conflict social and political orders (Franke 2006). This of course opens up 30 for a critique of the dichotomy ‘private’ and ‘public’ and ‘before’ and ‘after’ war violence (Hansen 2001). Selectivity of sexual crimes might have counterproductive effects for wider questions of gender justice and for obscuring women’s role as active agents. Interactions and friction between different transitional justice mechanisms as well as actors and stakeholders – international, national and local - within the same post-conflict context have hardly been studied; a lacuna of the liberal peacebuilding project at large that has urgently been pointed out in recent literature. 5. REFERENCES Aggestam, Karin and Annika Björkdahl ed. 2012. Rethinking Peacebuilding: The Quest for Just Peace in The Middle East and the Western Balkans. Milton Park, New York: Palgrave Åhäll, Linda and Laura J. Shepherd. ed. 2012. Gender, Agency and Political Violence. Houndmills Basingstoke: Palgrave Macmillan. Ahearn, Laura M. 2001. “Language and Agency.” Annual Review of Anthropology, 30: 109-37. Amadiume, Ifi and Abdullahi An-Na´im. ed. 2000. The Politics of Memory, Truth, Healing and Social Justice. London: Zed Books. Auchter, Jessica. 2012. “Gendering Terror.” International Feminist Journal of Politics 14 (1): 121-139. Bell, Christine and Catherine O’Rourke. 2010. ’Peace Agreements or 'Pieces of Paper’? The Impact of UNSC Resolution 1325 on Peace Processes and their Agreements.” International and Comparative Law Quarterly 59: 941-980. Bell, Christine. and Catherine O’Rourke 2007. “Does Feminism Need a Theory of Transitional Justice? An Introductory Essay” International Journal of Transitional Justice 1: 23-44. Beltz, Amanda 2008. “Prosecuting Rape in International Criminal Tribunals: The Need to Balance Victims Rights with the due Process rights of the Accused”, St. Johns Journal of Legal Commentary 23(1): 167-209. Björkdahl, Annika 2012. “A Gender-Just Peace? Exploring the Post-Dayton Peace Process in Bosnia.” Peace and Change 37 (2): 171–337. Björkdahl, Annika and Kristine Höglund ed. 2013 (forthcoming). Precarious Peacebuilding: Frictonal encounters between the global and the local, special issue of Peacebuilding 1(3). Bougarel, Xavier, Elissa Helms and Ger Duijzings ed. 2007. The New Bosnian Mosaic. Identities, Memories and Moral Claims in a Post-War Society, Aldershot: Ashgate Publishing. 31 Buckley-Zistel, Suzanne and Ruth Stanley ed. 2012. Gender in Transitional Justice, Basingstoke Houndmills: Palgrave MacMillan. Buckley-Zistel, Suzanne and Magdalena Zolkos. 2012. “Introduction: Gender in Transitional Justice” in Suzanne Buckley-Zistel and Ruth Stanley ed. Gender and Transitional Justice. Basingstoke Houndmills: Palgrave MacMillan. Butler, Judith. 1999. Gender Trouble. New York and London: Routledge. Calypkan, Selmina. 2007. “Trauma response and prevention: precondition for peace and justice”, Forced Migration Review 27 (1): 54. Cleaver, Frances 2007. ”Understanding Agency in Collective Action.” Journal of Human Development 8 (2): 223-244. Cockburn, Cynthia. 2013. “Against the Odds – Sustaining feminist momentum in Post-War Bosnia-Herzegovina.” Women’s Studies International Forum 37(1): 26-35. Conference Report 2012. Ensuring Justice, Reparations and Rehabilitation for Victims of Conflict Related Sexual Violence (Sarajevo, 5-6 September, 2012) accessed 22 March, 2013 at http://www.unfpa.ba/novost/9594/conference- report- Campbell, Karen. 2007. "The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia." International Journal of Transitional Justice 1(3): 411-32. Cohen, Stanley. 2001. States of Denial. Knowing about Atrocities and Suffering, Cambridge: Polity Press. Couillard, Valerie 2007. “The Nairobi Declaration: Redefining Reparation for Women Victims of Sexual Violence”, Journal of Transitional Justice 1(3):444- 453. Coulter, Chris. 2006. Being a Bush wife. Women´s Lives Through War and Peace in Northern Sierra Leone. Doctoral dissertation. Uppsala: Uppsala University. Das, Veena 2007. Life and Words. Violence and the Descent into the Ordinary. Berkely and Los Angeles: University of California Press. Das, Veena and Arthur Kleinman ed. 2001. Remaking a World. Violence, Social Suffering and Recovery, Berkeley and Los Angeles: University of California Press. Delpla, Isabelle 2007. “In the Midst of Injustice. The ICTY from the Perspective of Some Victim Associations” in Xavier Bougarel, Elissa Helms and Ger Duijzings ed. The New Bosnian Mosaic. Identities, Memories and Moral Claims in a Post-War Society. Aldershot: Ashgate. Dogwoof Pictures 2006. Esma’s Secret – Grbavica. Directed by Jasmila Zbanic. Drumbl, Mark A. 2007. Atrocity, Punishment and International Law, New York: Cambridge University Press. De Greif, Pablo. Ed. 2006. The Handbook of Reparations. Oxford: Oxford University Press. Dugan, Colleen and Ruth Jacobson 2009. “Reparation of Sexual and Reproductive Violence: Moving from Codification to Implementation”, in Ruth Rubio-Marín ed. The Gender of Reparations. Cambridge: Cambridge University Press. 121-160. 32 Engle, Merry Sally 2005. Human Rights and Gender Violence: Translating International Law into Local. Chicago: University of Chicago Press. Foucault, Michel. 2000. Power. New York: New Press. Franke, K. M. 2006. “Gendered Subjects of Transitional Justice.” Columbia Journal of Gender & Law 15 (3): 16. Freeman, Mark 2004. Bosnia and Herzegovina: Selected Developments in Transitional Justice, Case Studies Series, International Center for Transitional Justice. Gaventa, John 2006 “Finding the Spaces for Change: A Power Analysis.” Exploring Power for Change. IDS Bulletin 37 (6): 23-33. Giddens, Anthony 1984. The Constitution of Society. Outline of the Theory of Structuration. Cambridge: Polity Press. Giles, Wenona and Jennifer Hyndman ed. 2004. Sites of Violence. Gender and Conflict Zones. Berkely and Los Angeles: University of California Press. Gobodo-Madikizela, Pumla 2005. Women's Contributions to South Africa's Truth and Reconciliation Commission. Washington DC: Women Waging Peace / The Policy Commission. Grina, E. M. 2011. "Mainstreaming Gender in Rule of Law Initiatives in Post- Conflict Settings." William & Mary Journal of Women and the Law 17(2): 40. The Guardian. 15 Dec 2011. ‘Angelina Jolie touched our souls’ – Bosnian Rape Victims have their Say. http://www.guardian.co.uk/film/filmblog/2011/dec/15/angelina-jolie- bosnia-rape-victims, last accessed 12 March 2013. Hamber, Brandon, Liz Sevcenko and Ereshnee Naidu. Ed. 2010. “Utopian Dreams or Practical Possibilities? The Challenges of Evaluating the Impact of Memorialization in Societies in Transition.” The International Journal of Transitional Justice 4: 397-420. ICTY, 22 February, 2001. Judgement, Prosecutor v. Kunarac et al. Case No: IT-96- 23/1. ICTY, 4 April, 2007. Judgement, Prosecutor v. Dragan Zelenovic, Case No: IT-96- 23/2-S. Impunity Watch. 2012. War Victims and Gender Sensitive Truth, Justice Reparations and Non-Recurrence in Bosnia and Herzegovina. Kappler, Stefanie and Oliver Richmond 2011. “Peacebuilding and Culture in Bosnia and Herzegovina: Resistance or Emancipation?” Security Dialogue 42: 261-278. Kritz, Neil J. 2002. “Progress and Humility: the On-going Search for Post- Conflict Justice,” in M. Cherif Bassiouni ed. Post-Conflict Justice. Ardsley: Transnational Publishers. MacDowell, Sara. 2008. “Commemorating Dead 'Men': Gendering the Past and Present in Post- Conflict Northern Ireland.” Gender, Place & Culture: A Journal of Feminist Geography, 15 (4): 335-354 Mannergren Selimovic, Johanna, Agneta Söderberg Jacobson and Åsa Nyquist Brandt 2012. Equal Power - Lasting Peace. Obstacles for Women's Participation in Peace Processes. Stockholm: Kvinna till Kvinna. 33 Medica Mondiale. December 2009. "…and that it does not happen to anyone anywhere in the world." The Trouble with Rape Trials - Views of Witnesses, Prosecutors and Judges on Prosecuting Sexualised Violence during the War in the former Yugoslavia. Mertus, Julie 2000. “The Truth in a Box: The Limits of Justice through Judicial Mechanisms” in Ifi Amadiume and An-Na´im, Abdullahi ed. The Politics of Memory, Truth, Healing and Social Justice,. London: Zed Books. Mertus, Julie 2004. ”Shouting from the Bottom of the Well. The Impact of International Trials for Wartime Rape on Women's Agency.” International Feminist Journal of Politics 6 (1): 110-128. Moon, Claire 2008. Narrating Political Reconciliation. South Africa´s Truth and Reconciliation Commission, Plymouth: Lexington Books. Manjoo, Rashida and Calleigh McRaith 2011. “Gender-Based Violence and Justice in Conflict and Post-Conflict Areas”, Cornell International Law Journal 44(11): 11-31 Martin-Ortega, Olga 2012. “Transitional Justice in the Quest for Just and Durable Peace in Bosnia-Herzegovina”, in Karin Aggestam and Annika Björkdahl ed. Rethinking Peacebuilding: The Quest for Just Peace in The Middle East and the Western Balkans. Milton Park, New York: Palgrave. Meintjes, Sheila, Anu Pillay and Meredith Turshen. Ed. 2001. The Aftermath: Women in Postconflict Societies. London and New York: Zed Books. Meintjes, Sheila. 2009. “‘Gendered Truth’? Legacies of the South African Truth and Reconciliation Commission.” African Journal on Conflict Resolution 9(2): 100-12. Mosedale, Sarah. 2005. “Assessing Women’s Empowerment: Towards a Conceptual Framework.” Journal of International Development 17 (2005): 243-257. Henry, Nicola. 2010. “The Impossibility of Bearing Witness: Wartime Rape and the Promise of Justice.” Violence against Women 16: 1098-1119. Ní Aoláin, Finnoula, 2012. “Advancing Feminist Positioning in the Field of Transitional Justice.”International Journal of Transitional Justice 6 (2): 205-228. Ní Aoláin, Finnoula, Dina Fransesca Haynes and Naomi Cahn. 2011. On the Frontlines. Gender, War, and the Post-Conflict Process. Oxford: Oxford University Press. Nollkaemper, Andre 2009. “The Contribution of International Institutions to Domestic Reparations for International Crimes,” American Society of International Law Proceedings 203: 203-201. Orr, Wendy 2000. ‘Reparation Delayed is Healing Retarded’, in Charles Villa- Vicencio and Wilhelm Verwoerd ed. Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, 239–49. New York: Zed Books. Ortner, Sherry B. 2006. Anthropology and Social Theory: Culture, Power, and the Acting Subject. Durham: Duke University Press. 34 Oosterveld, V. 2009. “Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes.” American University Journal of Gender, Social Policy & the Law 17(2): 24. Richmond, Oliver P. 2010. “Resistance and the Post-liberal Peace.” Millennium – Journal of International Studies 38 (3): 665-692. Richmond, Oliver P. Ed. 2010. Palgraves advances in peacebuilding: critical developments and approaches. Basingstoke: Palgrave Macmillan. Richmond, Oliver P. 2011. “Critical Agency, Resistance and a Post-Colonial Civil Society,” Cooperation and Conflict. 46: 419-440. Rome statute of the International Criminal Court: http://untreaty.un.org/cod/icc/statute/romefra.htm Ross, Fiona C. 2001. “Speech and Silence: Women´s Testimony in the First Five Weeks of Public Hearings of the South African Truth and Reconciliation Commission” in Veena Das and Arthur Kleinman ed. Remaking a World. Violence, Social Suffering and Recovery.. Berkeley and Los Angeles: University of California Press. Rubio-Marín, Ruth Ed. 2006. What happened to the women? Gender and Reparations for Human Rights Violations. International Center for Transitional Justice. Rubio-Marín, Ruth 2006. “Introduction: The Gender of Reparations: Setting the Agenda”, in Rubio-Marín, Ruth 2009. “Introduction: A Gender and Reparations Taxonomy”, in Rubio-Marín, Ruth Ed. What happened to the women? Gender and Reparations for Human Rights Violations. International Center for Transitional Justice Rubio-Marín Ruth ed. 2009. The Gender of Reparations, Sexual Hierarchies while Redressing Human Rights Violations. New York, Cambridge: Cambridge University Press. Rubio Marín, Ruth. 2009. The Gender of Reparation in Transitional Societies, in Rubio_Marín, Ruth ed. The Gender of Reparations, Sexual Hierarchies while Redressing Human Rights Violations. New York, Cambridge: Cambridge University Press. Shepherd, Laura J. ed. 2010. Gender Matters in Global Politics. A feminist Introduction to International Relations. London and New York: Routledge. Simpson, Graeme, Edin Hodžic, Louis Bickford 2012. Looking Back, Looking Forward. Promoting Truth-seeking in Bosnia Herzegovina. Sarajevo: UNDP. Teitel, Ruti, G. 2000. Transitional Justice. New York: Oxford University Press. BBC News. 1 October, 2004. Bosnian Serbs Reject Rape Plaque, (http://news.bbc.co.uk/2/hi/europe/3706554.stm, last accessed 19 Aug, 2010. TRIAL. April, 2012. Freed, but not Free Yet! The Situation of the Former Camp Detainees in Bosnia and Herzegovina. General allegation to the special rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment and the working group on arbitrary detention. Sarajevo/Geneva. 35 United Nations 13 January 2012. Conflict-related sexual violence. Report of the Secretary General. A/66/657*-S/2012/33. Valji, Nahla (with Romi Sigsworth and Anne Marie Goetz) 2010. A Window of Opportunity? Making Transitional Justice Work for Women. New York: UNIFEM) accessed 23 March 2013 at http://www.humansecuritygateway.com/documents/UNIFEM_AWindo wofOpportunity_MakingTransitionalJusticeWorkforWomen.pdf Väyrinen, Tarja 2010. ’Gender and Peacebuilding.’ In Palgraves advances in peacebuilding: critical developments and approaches. Oliver P. Richmond ed. Basingstoke: Palgrave Macmillan. Wanis-St. John, Anthony and Darren Kew 2008. “Civil Society and Peace Negotations: Confronting Exclusion.” International Negotiation 13: 11-36. Yuval-Davis, Nira. 2008. Gender & Nation, London: SAGE Publications. Zakov, Dubravka 2007. The Body of War. Durham and London: Duke University Press. 
work_xzlwk2ddyraizj3sj4rrzrj554	----	Environmental Justice Grantee Orientation Meeting ~M ml LIAl --"I t~ ~ ~s b' R aura tOBO~~~~~~~~~~r4?S | _Fiber * _ ._X|~~E What goes where? The EAAC information board tells employees what materials can be recycled. University Environmental Graduate Pro- gram. The students, as part of their class- room studies, have characterized the ecosystem of the NIEHS campus, provid- ing a better understanding of the plant and animal life on the site. Their final report details three separate guidance plans that could be followed to achieve various man- agement levels for the institute's 509 acres. The management plan favored by EEAC would create a more natural appear- ance on the institute grounds. The plan would prohibit mowing and landscaping activities around trees, allow for an un- mown buffer zone near the institute lake, and provide for the planting of trees and shrubs whose bloom and fruit periods would be distributed throughout the year. In keeping with the educational out- reach program being pursued by NIEHS, EEAC is interfacing with Project Wild, a nationally recognized, interdisciplinary program that integrates wildlife principles into environmental and conservation efforts. Project Wild stresses the impor- tance of wildlife as an environmental health indicator and as a measure of the quality of life in general. This fall, NIEHS will serve as host for Project Wild work- shops on terrestrial and aquatic wildlife. According to EAAC Chair Robert Chapin, successful implementation of these programs should pave the way for other ventures. "We will continue to push for a reduction in our use of natural resources, more efficient strategies for nec- essary resource use, and a more environ- mentally responsible management of the institute grounds," says Chapin. Some of the new proposals are exten- sions of current programs. The committee is recommending that NIEHS significantly increase its procurement of recycled-con- tent materials to reduce pressure on virgin resources and to stimulate markets for recy- cled materials. "If you're not buy- ing recycled," says Ir ! Chapin, "you're not recycling." The pro- posal also calls for increased use of envi- ronmentally friendly products, such as nontoxic inks and low-bleach paper, whose manufactur- ing generates less harmful chlorina- tion by-products like PCBs. One of the EEAC's immediate goals is to fos- ter more efficient use of available trans- portation to and from the institute. "Of all our employees, fewer than 10 use alterna- tives to private automobiles to get to work," says Chapin. "Since automobile exhaust is the major source of air pollution in the Research Triangle area, promoting more efficient means of local transport would have immediate benefits." Some of the alternatives being dis- cussed by committee members include promoting the institute's new carpool pro- gram, encouraging employee participation in mass transit and shuttle pick-up at bus drop-off points, and working with local planners to build public bikeways. Chapin says he's learned a valuable les- son from his committee's relentless com- mitment to environmental goals. "If you unleash the creative power of the employ- ees, a lot of great things are going to hap- pen. Our efforts clearly demonstrate that management and employees can work together to bring about beneficial changes in areas where they are needed." NTP Announces Bioassay Results The National Toxicology Program has pre- sented six more technical reports in its ongoing series of toxicology and carcino- genesis studies. All six reports were approved by the NTP's Board of Scientific Counselors' Technical Reports Sub- committee in a public review held November 29 at NIEHS. Each report involves a series of long-term studies in which male and female rats and mice were given a range of doses of test chemical fol- lowed by extensive histopathologic exami- nation. . Nickel oxide, nickel sulfate, and nickel subsulfide. Three separate studies were per- formed to evaluate and compare the toxici- ty and carcinogenicity of three nickel com- pounds prominent in nickel mining and refining. These studies involved inhalation exposure to atmospheres containing parti- cles of nickel oxide, nickel sulfate hexahy- drate, or nickel subsulfide. The three nickel compounds all caused chronic lung infla- mation in male and female rats and mice, but the carcinogenic responses varied. Nickel subsulfide exhibited clear evi- dence of carcinogenic activity in male and female rats, but not in mice, based on the occurrence of neoplasms in the lung and adrenal gland. Nickel oxide also caused neoplasms at these two sites in male and female rats and also showed equivocal evi- dence of carcinogenicity in female mice based on a marginal increase in lung tumors. In contrast, the water-soluble nickel sulfate hexahydrate exhibited no evi- dence of carcinogenic activity in either rats or mice. Isobutyl nitrite. Isobutyl nitrite is used in fragrances and is also abused as a euphoric. It was nominated for study to investigate a possible association with the higher incidence of Kaposi's sarcoma among male homosexual AIDS patients (see Haverkos et al., EHP 102: 858-861). When animals were exposed to this chemi- cal via inhalation exposure, male and female rats exhibited clear evidence of car- cinogenic activity, and male and female mice exhibited some evidence of carcino- genicity, based on increased incidences of lung neoplasms in all four sex/species groups. Triethanolamine. Triethanolamine is used as a surfactant in a wide variety of industrial and household products, includ- ing cosmetics and detergents. When administered by dermal application to rodents, triethanolamine was associated with increased incidences of liver tumors in female mice. Marginal increases in the incidences of liver tumors in male mice and kidney tumors in male rats were judged equivocal. 2,2-Bis(bromomethyl)-1,3-propane- diol. 2,2-Bis(bromomethyl)-1,3-propane- diol is a brominated fire retardant (trade name FR-1 138 ) used to treat molded plas- tics and polyurethane foam. When given in feed, this chemical was clearly carcino- genic to a variety of organs in male and female rats and mice, including at least 14 distinct tissue sites in male rats. Environmental Justice Grantee Orientation Meeting On 8 December 1994, new grantees in the NIEHS environmental justice research grant program met at the institute for an orientation session. The primary objective of this grant program is to bridge the com- munication gap among members of com- munities affected by environmental pollu- Volume 103, Number 2, February 1995 139 ~~~~~~~~~~~~~~~~~~~~z 7> '1F Xz77inR R i l | 01( X W;~~~~~~~~~~~ Gate met Ne enIromna jusic reeac gatee nld lf orgt ineQil CaEo Pora Kas Coo, ndMihal eliau tants, health care providers, and environ- mental health researchers. The program seeks to ensure that the communities involved have a demonstrable role in iden- tifying and defining problems and risks related to environmental health and in shaping future research approaches to such problems. The purposes of this orientation meet- ing were to share information among grantees and NIEHS staff, to allow grantees to learn of common or similar approaches in their projects, and to begin developing a communication network. Following a welcome and introduction by Anne Sassaman, director of extramural research and training, and Allen Dearry, program administrator, the principal inves- tigator of each grant described his or her project, including its history, objectives, and methods. Dianne Quigley at Clark University, in Worcester, Massachusetts, in collaboration with Native Americans for a Clean Environment and Citizen Alert Native American Program, is working to increase the awareness of Native American commu- nities exposed to radiation contamination in their environment. They are designing and implementing a plan for risk manage- ment and prevention at the Western Shoshone Nation near the Department of Energy's Nevada Test Site and at the Cherokee Nation at Sequoyah Fuels, Oklahoma, a uranium processing facility that was in operation for 23 years. Education modules of two types will be implemented: community modules, creat- ed exclusively by Native American collabo- rators; and health education modules, cre- ated by scientists and health care provider trainers. Relevant materials and strategies will be shared with other Native American communities. Katsi Cook at The State University of New York, Albany, in collaboration with St. Regis Mohawk Health Services, is designing community-based strategies for environmental health education, outreach, and training in the Akwesasne Mohawk community, which is adjacent to a Sup- erfund site in the Great Lakes Basin-St. Lawrence River watershed. Environmental hazards have resulted from the rapid transi- tion from an agricultural to an industrial environment. Cook is a nurse midwife and a member of the Mohawk community, and the project is implemented, evaluated, and disseminated explicitly through com- munity members. Michael Belliveau and Carlos Porras from Citizens for a Better Environment, in collaboration with the Labor Occupational Safety and Health Program and the Center for Occupational and Environmental Health at UCLA and the Community Health Foundation, aim to educate com- munity members and health care providers, promote adoption of pollution prevention measures, and establish a com- munity-based strategy for reducing com- munity and worker exposure to environ- mental pollutants in southeast Los Angeles, a highly industrialized area home to a low- income population, which is approximate- ly 90% Hispanic and Latino. A major objective of this project is to analyze data to confirm the list of environmental pollu- tants already known and to determine whether gaps exist in the data. Environ- mental health issues will be determined and addressed. Education of community members and medical care providers will be emphasized. Sources of health hazards will be identified, and strategies will be developed to attempt exposure reduction. Grant Writing Workshop for Environmental Justice An instructional workshop for writing a grant application in response to request for applications (RFA) ES 95-002, "Environmental Justice: Partnerships for Communication," was held at NIEHS on December 9. This RFA is a reannounce- ment of the initiative that resulted in three awards earlier this year (see previous story). At this workshop, NIEHS staff discussed the fundamentals of how to write an NIH grant application. Open to the public, the workshop attracted 30 participants, who spent the day learning about this RFA and the NIH grant process. Allen Dearry, program administrator, explained the mission of NIEHS, particu- larly as it relates to environmental justice, and then addressed this RFA specifically. The objectives, eligibility criteria, and review process were described. The three current grantees, Dianne Quigley, Katsi Cook, and Michael Belliveau, then present- ed their projects and discussed how they put together successful applications for the first round of competition. They discussed personnel interactions among community members, health care providers, and researchers, and provided the audience with some helpful hints on how to bring people together for successful collaborations. Diane Becker, director of the Center for Health Promotion at Johns Hopkins University, and a member of the Special Review Committee that evaluated the applications submitted in the first competi- tion, explained her impressions of the review process. The review committee is composed of a 1:1:1 ratio of community representatives, health care providers, and environmental health scientists. After the presentations Dearry led the group through a lesson in filling out a PHS 398, the offi- cial NIH grant application form. Carolyn Winters, grants management specialist, reviewed budgetary considerations and needed assurances and certifications. General questions and answers and individ- ual discussions rounded out the session. 140 Environmental Health Perspectives 
work_y7pdh3ztzzczfl7up6x4gmkzza	----	O&E288227.qxd LUND UNIVERSITY PO Box 117 221 00 Lund +46 46-222 00 00 Reducing Asymmetries in Intergenerational Justice: Descent from Modernity or Space Industrialization? Karlsson, Rasmus Published in: Organization & Environment DOI: 10.1177/1086026606288227 2006 Link to publication Citation for published version (APA): Karlsson, R. (2006). Reducing Asymmetries in Intergenerational Justice: Descent from Modernity or Space Industrialization? Organization & Environment, 19(2), 233-250. https://doi.org/10.1177/1086026606288227 Total number of authors: 1 General rights Unless other specific re-use rights are stated the following general rights apply: Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal Read more about Creative commons licenses: https://creativecommons.org/licenses/ Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. https://doi.org/10.1177/1086026606288227 https://portal.research.lu.se/portal/en/publications/reducing-asymmetries-in-intergenerational-justice-descent-from-modernity-or-space-industrialization(30a52911-9712-48a8-8646-9c8ed3900a95).html https://doi.org/10.1177/1086026606288227 Futuristic and Utopian Studies REDUCING ASYMMETRIES IN INTERGENERATIONAL JUSTICE Descent from Modernity or Space Industrialization? RASMUS KARLSSON University of Lund Normally, contractual conceptions of intergenerational justice regard the responsibility held by each generation as symmetrical. This article argues that the late modern society has created an asymmetry because of its unprecendented instrumental and destructive capacity. Historically unique risks such as ther- monuclear destruction, global ecological deprivation, and resource depletion all point at this asymmetry and unequal distribution of responsibility between generations. Extending one contractual device used by John Rawls in line with what Brian Barry has suggested, this article analyzes the roots of the asymme- try and presents two political strategies to end it. The first strategy resembles the traditional deep ecological programme whereas the second holds an imagina- tive vision of a human future in space. Both strategies seek to reduce the influ- ence present generations exercise on the level of opportunity available to future generations. The key normative argument is that intergenerational justice requires spatial and temporal limits on political action. Keywords: intergenerational justice; sustainable development; deep ecology; space industrialization T he fundamental difference between present generations and those ofhistorical times is one of instrumental capacity. The current condition derives its exclusivity from our unprecedented capability of transforming the physical world, a capability that reverberates into the future and dramatically affects not only contemporaries but also generations to come. Historically unique risks such as thermonuclear destruction, global ecological deprivation, and resource depletion all point at this unequal distribution of responsibility. This article in a normative manner analyzes this asymmetry, or critical phase, from within a contractual conception of justice, arguing that it is unjust that certain 233 Author’s Note: I would like to thank Marcel Wissenburg, Piers H. G. Stephens, Åsa Mattsson, and an anonymous referee from Organization & Environment for helpful comments on earlier versions of this article. Organization & Environment, Vol. 19 No. 2, June 2006 233-250 DOI: 10.1177/1086026606288227 © 2006 Sage Publications O&E288227.qxd 4/21/2006 8:47 PM Page 233 generations are allowed to (a) make irreversible decisions about resource allocation and (b) undertake actions that could undermine the opportunity of future generations to maintain what John Rawls (1999) defined as “a state of society with a material base sufficient to establish effective just institutions within which the basic liber- ties can all be realized” (p. 256). Accepting this line of argument, intergenerational justice seems to require that we seek some sort of “exit strategy” capable of reim- posing spatial and temporal limits on political action. In the concluding sections of the article, two such strategies are presented and also briefly evaluated. RAWLS AND INTERGENERATIONAL JUSTICE It is an immediate observation that the current level of human welfare owes no small part to the work of our ancestors. Although perhaps not teleological in nature, as Immanuel Kant (2003) suggested when he saw earlier generations carrying out toilsome labour only to prepare a “foundation on which the later generations could erect the higher edifice which was Nature’s goal” (p. 39), we still cannot deny that many institutions and modes of social interaction that we today take for granted are only possible to imagine based on earlier historical achievements. Naturally this is the case with scientific knowledge; however, the same logic seems to apply equally well to the accumulation of physical capital, especially infrastructure. Seen as an aggregate, each generation is naturally con- fronted with the question of how to allocate its time and resources. Just as in the case with a single individual, a trade-off between immediate and future rewards is to be sought. Every generation, with the exception of the first, will be better off if the previous decides to accumulate physical capital, theoretical knowledge, and practical experience. This accumulation, however, does not have to be deliberate in nature. Already from Adam Smith we recall that self-interested micromotives may lead to unintended yet desirable outcomes on the macro level. Naturally, the same logic applies between generations. For instance, demand for immediate consumption may lead to the establishment of new trade routes that, in turn, gen- erate future economic growth (Cosimo, 2004). Nevertheless, the classic dichotomy of saving versus consuming remains applicable to most intergenerational distrib- utive conflicts as later generations will indeed benefit if earlier generations decide to invest in physical capital or new knowledge instead of merely main- taining a steady state. Finally, we must keep in mind that saving also comes in a negative sense, meaning not harming future generations. For Rawls the purpose of intergenerational accumulation was rather straight- forward, namely, to bring forth the material conditions required to support just institutions according to what the parties would agree on in the original position. Starting at a very primitive level, this is self-evident. To be at all able to talk about “justice” we have to move beyond genuine conflicts of interest (as when two sailors are stranded on a deserted island with just enough food to support one of them). Genuine conflicts of interest, as in starvation or access to medical treat- ment, cannot be resolved through deliberation. However, the required level of material resources is not necessarily one of affluence; Rawls (1999) held that beyond some point, great wealth is “more likely to be a positive hindrance, a meaningless distraction at best if not a temptation to indulgence and emptiness” (p. 258) on the way to a just society (Barry, 1978, p. 210). As actual exchanges between generations are possible only in one direction because of the time arrow, 234 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 234 Rawls (1971) found that the difference principle, stating that injustices are allowed only if they benefit the worst off, could not apply to the problem of savings between generations (p. 291). Unfortunately, the argument behind this conclusion is rather unclear. Apparently Rawls believed that the difference prin- ciple would require later generations to improve the situation of the least-fortunate first generation and because this is impossible he held the difference principle was inapplicable as it “would seem to imply, if anything, that there be no saving at all” (p. 291). I believe that other interpretations are possible, for instance that the worst-off generations instead risk being those at the end of the human lineage. Finding the difference principle insufficient, Rawls in the original edition of A Theory of Justice from 1971 invented the “just saving principle” that he regarded as an expression of the “natural duty to uphold and to further just institutions and for this the improvement of civilization” (p. 293). The principle entrusts each generation with the task of contributing to an intergenerational process of accumu- lation that enables closer and closer approximation of the just society (Fitzpatrick, 2001, p. 231). The key contractual device of Rawls’s theory is the veil of ignorance. Its alchemy forces us to agree on institutional arrangements being unaware of our own place in society, our natural talents, or our social status. Much criticism has been articulated against this device, saying that without knowledge of our social background and without access to our personal identity we can not give moral judgements either, and thus the device fails. However, as Will Kymlicka (2002) pointed out, the veil of ignorance is not an expression of a theory of personal identity. It is an intuitive test of fairness, in the same way that we try to ensure a fair division of cake by making sure that the person who cuts it does not know which piece she will get. (p. 63) In the original edition from 1971, the parties are drawn from one single genera- tion in what Rawls called “the present time of entry interpretation” (p. 140) and they also know that they are contemporaries. By the second edition of 1999 and, in fact, already in Political Liberalism from 1993 (Rawls, 1993, p. 273), Rawls had, in response to criticism primarily from Jane English, modified his argument (Paden, 1997): Now when the parties consider this problem they do not know to which genera- tion they belong or, what comes to the same thing, the stage of civilization of their society. They have no way of telling whether it is poor or relatively wealthy, largely agriculture or already industrialized, and so on. (p. 254) With these additional restrictions to the original position Rawls hoped to achieve an ideal democratic decision because no one knows to which generation he or she belongs, the saving principle adopted, and the schedule of rates agreed on will be “fairly adjusted to the claims of each generation” (Rawls, 1999, p. 256). Still Rawls maintained the interpretation of the present time of entry, meaning that even if the parties do not, the reader knows that they are, in fact, contemporaries drawn from the same generation (Rawls, p. 254). It is clear from the text that this was not an easy decision for Rawls, and sometimes he comes close to other inter- pretations. A fundamental problem for Rawls was the motivational forces driving Karlsson / INTERGENERATIONAL JUSTICE 235 O&E288227.qxd 4/21/2006 8:47 PM Page 235 the parties behind the nonhistorical veil of ignorance (de-Shalit, 1995, pp. 99-111); in short, why should they agree on saving at all? Here I, together with Brian Barry (1989), believe that Rawls was unable to “pursue the logic of his own analysis more rigorously” (p. 505). As the quotation above from Kymlicka argued, the veil of ignorance is most of all about sharpening our moral intuitions, independently of how we came to hold these intuitions originally. In line with Barry, I therefore extend the veil of ignorance so that all generations are present behind it and thus scrap “the part of the construction specifying that all the people in the ‘original position’ are contemporaries” (Barry, p. 506). Adopting such an inclusive view on temporal location makes it rather inevitable to comment on the spatial dimension as well. Siding with the cosmopolitical criticism of Rawls’s The Law of Peoples (Caney, 2002), I affirm the moral standing of all persons and see no reason—at least prima facie—why the scope of justice should recognize arbitrary national boundaries (Gosepath, 2001).1 Refraining from the perennial temptation of further arguing the cosmopolitical case, I instead focus on the philosophical implications that follow from the notion of a transgenerational community. As we extend the scope of justice beyond the present we are con- fronted with a key puzzle of intergenerational justice, namely the “nonidentity problem.” First thoroughly voiced by Derek Parfit in Reasons and Persons (1984), contractual conceptions of justice are often thought to be especially vul- nerable to this problem. In short, the nonidentity problem stems from the fact that any long-run social policy will affect not only the number of people living in the future but also their identity, and thus: “We cannot then say that any individual would have been better, or worse off, given different policies, since the policy populations have no members in common” (Dobson, 1998, p. 114). Severe as this problem may be for any ethical theory, I believe that its impor- tance for contractual conceptions of justice has been somewhat exaggerated in the literature (Page, 2006). To see why I think so, we have to remember that even a meeting solely of contemporaries behind the veil of ignorance is not about dic- tating individual choices but about agreeing on overall institutional arrangements. The same is of course true for any hypothetical intergenerational meeting, out- side space and time. During such a meeting, the different policies suggested would represent different timelines—in each timeline different individuals would come into being. Restating that individual characteristics are concealed anyway behind a “thick” veil of ignorance,2 the state of nonidentity would not in itself undermine the contractual device.3 As soon as a policy, for instance a saving prin- ciple with a corresponding schedule of rates, is adopted by the meeting, the man- ifold of timelines would vanish because of the singularity of the future. Then, with only one timeline, people living in the future would be able to rightfully claim that we fulfil our moral obligations to them. In fact, I now try to show that if we accept this solution, the adoption of Rawls’s own just saving principle fol- lows more naturally. We recall that the purpose of the just saving principle was not to go on maximizing indefinitely but only to save as far as the realization and preservation of a just society requires (Rawls, 1999, p. 257). Rawls repeatedly emphasized that even if savings between generations are perceivable for numer- ous reasons, the just saving principle only applies until just institutions have been established. From a teleological utilitarian point of view it could be argued that harsh demands of savings should be imposed on generations living early along the time continuum as generations living later (the majority, because of resulting population growth) would benefit greatly from this. However, from a contractual 236 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 236 perspective this is not a valid argument because the hardship imposed would violate what is reasonable to believe that the parties would accept in good faith (Kukathas & Pettit, 1990, p. 51), “should their society turn out to be the poor” (Rawls, 1999, p. 256). This argument, in favour of the just saving principle, comes to life first when the parties truly represent different generations. This, in turn, underlines the genuine symmetry characteristic for Rawls’s theory: Each generation is obliged to contribute their fair share, according to what would rea- sonably be agreed upon in the original position.4 Just as between contemporaries, the hypothetical original position thus strengthens our moral intuitions as it opens for deliberation on principles of justice that are valid beyond our contingent posi- tion in the space-time continuum. MODERNITY AS AN ASYMMETRICAL CRITICAL PHASE Human beings, as all biological life forms, exist in interaction with their sur- rounding physical environment. As we grew in our understanding of this external world we learned that it was but a tiny stage in a vast cosmic arena; that we were, in fact, stranded on a small habitable island amid a dark ocean. Here we were endowed, or rather perceived ourselves as endowed, with a limited amount of resources found in a complex ecological system of which we originally only made up a negligible part, not unlike our closest relatives the chimpanzees. For millennia, this order prevailed. Although humans were capable of influencing their local environment most substantially, as for instance the deforestation of the Mediterranean area in ancient history illustrates, we remained but one species on this planet. However, as our technological capacity increased we became capable of recasting the rules of interaction. We could spread ourselves to previous unin- habitable parts of the planet, multiply our numbers exponentially as agricultural techniques improved, and start to harvest resources at levels that no longer were negligible, not even on a global level. About 200 years ago this development trig- gered a rapidly self-reinforcing feedback loop in which scientific progress and economic growth unleashed an unparalleled transformative force, radically alter- ing the biosphere and the social institutions of this planet. Although it remains contested, I find it semantically appropriate to use the concept of modernity to describe this process. First it may seem as if, for the purpose of this article, a nar- row definition of this concept, basically equalling it with increased instrumental capacity, would be sufficient. Still, given its contested position within the con- temporary sociological discourse, the normative component of the concept must be addressed prior to discussing whether it causes a historical asymmetry of the kind suggested in the opening lines of this article. I now make yet another mod- ification to Rawls’s original position; though this time the modification will merely be temporary and carried out with a pedagogic purpose. By doing this temporary modification, I am able to raise a number of questions about prefer- ences on historical location. As stated before, the original position is situated out- side the space-time continuum. Just as it is essential for the argument that the parties do not know their future social position, I argue that it is essential that they do not know what temporal frame they will occupy when the veil of ignorance is lifted. Disclosure of such information would allow them to tailor institutions that they personally would benefit from (at the expense of the other parties). Let us now temporarily modify the original position so that the parties, when lifting the veil of ignorance, can decide when, along the timeline of human history, they Karlsson / INTERGENERATIONAL JUSTICE 237 O&E288227.qxd 4/21/2006 8:47 PM Page 237 would like to live. By doing so, we arrive at some strangely familiar problems but also at a new and rather intriguing dilemma. Approaching these matters from an intuitive point of view we see that opting for a time frame in the distant past, as for instance during the European medieval times, would be much like gambling in the unaltered original position (Kymlicka, 2002, p. 66). Although Rawls sug- gested that the parties would prefer a “maximin” strategy—that is, maximizing what they get if they wound up in the minimum—it is possible that some indi- viduals would instead prefer to take risks to reach a yet-higher level of welfare, even if the distributive scheme of that time frame could backfire on themselves. Living in 14th-century Europe as a healthy monarch or even nobleman is proba- bly preferable to living at the bottom of the social ladder today. Still there is a substantial risk that, when opting for an earlier time frame, one ends up in extreme poverty as this was the condition under which the majority lived in pre- modern societies. Even if such odds could be regarded as acceptable for some people, the dimension of physical health and life expectancy would in any case leave anyone opting for historical time frames disturbingly dependent on contin- gent factors as strength of immune system and genetic profile. In fact, a person who is moderately risk averse would solely on these grounds avoid any time frame without antibiotics, dental care, and basic sanitary conditions. Even when we move closer to our own time, every year sees higher average life expectancy on the planet. Although especially the African continent seems to be stuck in a grid- lock of starvation and suffering, it is obvious that so far humanity’s lot in general has continuously and vastly improved, in relative and absolute numbers (Lomborg, 2001, p. 4). Not only does the modern industrial state protect its citi- zens from hardship (through, e.g., housing, medicines, and welfare plans) it also enables historically unique features, including the widespread liberal freedom. Even if we accept this analysis it is reasonable to ask why anyone, with the exception of a few hard-line idealists, would prefer any time frame other than the present. With Barry’s (1989) extension of the original position, this means that when the veil of ignorance is lifted, many people may reasonably feel disadvantaged. Even if calculations suggest that as many as 10% of all people who ever have lived are alive today that still leaves out 90% who, I argue, would have preferred to live today. However, if the present is preferable to the past, the future may in turn be even more preferable. Yet, as we all know, this is not so by necessity but only as far as certain futures are realized and others are not. For instance, if we imagine a future in which the whole of humanity lives at a material standard comparable to the one that the Western world experiences today, that future would then undoubtedly be a most-preferable choice of time frame as the risks of ending up underprivileged are kept at a minimum. Here however, we touch on the classical problem of what makes up informed preferences. As the future remains open to both opportunities and contingencies, it only makes sense to judge what constitutes an informed choice based on the historical development leading up to the present. Beyond that we are left with mere speculations. As recent events in Asia and the southern United States have shown, we are still very much at the mercy of the elements. Natural disasters such as earthquakes, tropical hurricanes, or asteroid impacts as well as man-made nuclear cataclysms still hold the potential of dramatically altering which time frame that is “preferable,” at least within certain spatial limits. Returning once more to the temporarily modified original position, we seem to have encountered an ethical problem dictated by iron-hard utilitarian logic, 238 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 238 namely how can anyone be made to voluntarily allocate his or her own time frame to a past of hardship and physical suffering, even if this is necessary to maximize overall welfare? However, it is easy to see why this problem is illusory. As time is only flowing in one direction and as consequences of political actions follow the time arrow, we can only make sense of justice and responsibility when dealing with either the present or the future. Although the past may contribute to our understanding of certain historical mechanisms, as why it is reasonable to adopt the just saving principle, it simply has no normative significance for our understanding of justice today.5 Nevertheless, undoing the temporary modifica- tion of the contractual device and finally returning from this philosophical exper- iment we have obtained a solid case for believing that the present, despite all its shortcomings and risks, is the most preferable time frame known to human beings, given the uncertainty of personal identity behind the veil of ignorance. This leads us to believe that “modernity” is not only a measurement of increased instrumental capacity but also a process that (so far) holds an intrinsic positive normative value, meaning that when agreeing on a saving principle the parties would decide on a principle capable of bringing about modern society, a view consistent with the just saving principle.6 However, this is only true as far as the present modern condition is, at least to a minimum, sustainable. If we have reasons to believe that the entry into moder- nity, with correspondingly unprecedented high levels of human welfare, is only a short transitional phase the picture may look somewhat different. Moreover, if we even have reasons to believe that the current condition (with its consumption of finite resources and its destruction of biodiversity) may condemn future genera- tions to lower standards of living, modernity as a project becomes possible to challenge on grounds of intergenerational distributive justice (Beckerman, 1999, p. 71). Already today it has become obvious that invaluable habitats have been destroyed and thousands of species made extinct because of human activity. Considering global climate change, the ongoing toxification of the biosphere and other risks associated with the industrial life form, a growing concern seems to be warranted. However, as Bryan Norton (1999) showed, there is another way of reading the environmental discourse than in terms of conservation of endangered natural capital, namely in terms of distribution of opportunities between generations (pp. 118-150). Contextualizing such a reading within a Rawlsian framework we can define the currency of justice (what we seek to distribute across generations) as the level of opportunity necessary to achieve and/or maintain a just society. This is preferable to any list of “primary goods” as such lists are most likely to change over time (de-Shalit, 1995, p. 102). When entering modernity, new modes of social and economic interaction become possible as functional differentiation increases exponentially. Unfortunate as an anthropocentric outlook on nature may be, these new modes allow us to per- ceive the planet as a common pool of resources and sinks (Spaargaren, Mol, & Buttel, 2000). The pool includes different high-grade minerals, easily accessible sources of energy, and a given ecological space that is available to human activ- ity. Some of these resources are truly nonrenewable whereas others may be avail- able indefinitely as long as they are not overexploited; fish is a good example of the latter category (Daly, 1990). In the modern world, streams of material and energy flow from the planetary sources through the economic system to the plan- etary sinks where wastes and pollutants end up (Meadows, 2004, see Figure 1). Karlsson / INTERGENERATIONAL JUSTICE 239 O&E288227.qxd 4/21/2006 8:47 PM Page 239 The finite stock of nonrenewable resources enables different political, economic, and social projects depending on the technological knowledge available at each time. It is reasonable to believe that, when first entering modernity, the stock of nonrenewable resources, and the ecological carrying capacity, was roughly equiv- alent to what it had been during all preceding human history. If we disaggregate the stock of nonrenewable resources, we see that some assets, such as coal, are extremely valuable in earlier phases of modernity whereas others, such as ura- nium, require a higher technological level to be at all utilizable. Roughly the same goes for the sinks when disaggregated; although the biosphere’s capacity to absorb carbon dioxide has been important ever since industrialism started, it is first during the past 50 years or so that its ability to deal with chlorofluorocarbons (CFCs) or nuclear radiation becomes essential. As modernity propagates and becomes radicalised, the stock of nonrenewable resources is lowered; minerals are turned into steel, coal is combusted, and so on. Many of these processes are irreversible, as when fossil fuels are consumed and cannot be regenerated within a meaningful time frame. The relationship between the remaining stock of nonrenewable resources and the level of opportunity is, as shown above, however not of a simple linear kind. Nevertheless, it makes sense that if nonrenewable resources are consumed and neither substituted with renew- able resources nor transformed into technological knowledge, the level of oppor- tunity is lowered. Although human activity spreads and multiplies, it also slowly approaches the ecological carrying capacity, which is itself in turn lowered because of the expansion of human settlements and increased interference with different ecosystems (through, for instance, agriculture, mining, and forestry). The World Wildlife Foundation has calculated that by the mid-1980s humanity’s ecological footprint surpassed the productive capacity of the planet. This over- shoot depletes the planet’s natural capital and is, therefore, sustainable only for a limited amount of time (World Wildlife Fund, 2004). Other researchers have dis- cussed the long-term consequences of such an overshoot and the uncontrolled decline in per-capita food output, energy use, and industrial production it may eventually cause (Meadows, 2004). Here it is worth restating the fundamental difference between income and capital. We all know that our monthly expenses can exceed our monthly incomes for a long time, as long as we have capital saved up. However, at some time, unless our incomes raise or our expenses drop, bank- ruptcy is inevitable. The same logic essentially applies to our ecological space, there bankruptcy translates into “severe and permanent danger to the resource base” (Meadows, 2004, p. 139). For the generations coming after us, the diminishing stock of resources and the loss of ecological carrying capacity combined with a world population of maybe eight billion intuitively mean a substantially narrower range of opportunities 240 ORGANIZATION & ENVIRONMENT / June 2006 EMISSIONS RESOURCE USE Natural Resources Material and Fuels In Use Wastes in the Environment FIGURE 1: Earth’s Sources and Sinks Source: Adapted from Meadows (2004). O&E288227.qxd 4/21/2006 8:47 PM Page 240 (Barry, 1978, p. 243). I now try to qualify this statement through a general theory of critical phases, providing an argument for why this uneven distribution of opportunities (a) is rather probable to occur and (b) why it remains ethically prob- lematic unless an exit strategy is sought. CRITICAL PHASES AND TEMPORAL CHAUVINISM Let me first sum up a few thoughts leading here. I started off by recapturing the notion of intergenerational justice as we originally found it with Rawls and then extended it so that all generations are present behind the veil of ignorance. After that I turned to the current historical condition that, I argued, would be favoured in a hypothetical situation of time-frame allocation. The present state may nevertheless have serious negative implications for the opportunities avail- able to future generations. This led me to believe that modernity has created an asymmetry in terms of historical responsibility. As strange as such a thought may sound, we may consider the opposite, namely that responsibility for coming gen- erations is evenly distributed over the time continuum. An even distribution of responsibility would mean that any generation has the same opportunity to change the future as any other. Expressed in practical terms, this would mean that “primitive” civilizations thousands of years ago, having only limited contact with each other, possessed, among other things, the same destructive capacity as we do today. In a world with nuclear weapons, this is obviously not the case. For more than 60 years nuclear devices, capable of extin- guishing all sentient life, have become a constant reminder of our unique respon- sibility. Naturally, these weapons of mass destruction add to the above-mentioned asymmetry. Although conflicts between humans may be as old as humankind itself, modernity transformed their scope and effect beyond recognition. Solely for these reasons the idea of late modernity as an asymmetrical, or critical, phase in the history of humanity must be vindicated. Such a conclusion is further strengthened by (a) the irrecoverable nature of many decisions made regarding resource allocation and (b) the possible overshoot of human activity beyond the planet’s ecological carrying capacity. Still, the notion of a critical phase should warrant a sound scepticism. The attribution of special historical significance to the present, especially in combination with visions proclaiming the imminent end of the world, is a recurring theme in Western philosophy of history, deeply entrenched in the Judeo-Christian cosmological framework (Herman, 1997). It is a belief likely to emerge in transitional times, ranging from the eschatological teachings of the medieval world to the more secular dystopias of the interwar period (Fisher, 1991). It is easy to seek comfort in such historical parallels. Yet, for many of us, that comfort is not enough. We share a constant fear that the cur- rent condition will not prove sustainable, and that we accordingly should seek some kind of “exit strategy.” I now further comment on the universality of this dilemma. Thereafter, I sketch a graphical representation of the historical asymmetry it creates and relate the resulting model to contractual conceptions of intergenerational justice as I present what two, from each other most different, exit strategies could look like. Just as we are inclined to accept the notion that historical responsibility is unevenly distributed between generations when considering the opposite (a perfectly even distribution) we may better understand the origins of modernity by consid- ering the alternatives. Instead of perceiving modernity as a historical exception Karlsson / INTERGENERATIONAL JUSTICE 241 O&E288227.qxd 4/21/2006 8:47 PM Page 241 growing out of a particular social context it is warranted to ask if not any civi- lization, which sets out to systematically learn about nature and then apply that knowledge to produce artefacts, eventually will face many of our current diffi- culties. Even when siding with what Andrew Feenberg (2002) called an instru- mental theory of technology (the belief that technology is ethically neutral), it has become obvious that certain institutional arrangements are necessary if we are to successfully contain the risks that our scientific advancements spawn. Indeed, this last observation takes us to the verge of speculation; projecting a cos- mic scene, the late astronomer Carl Sagan (1994) once wrote: “maybe civiliza- tions arise all the time, but wipe themselves out as soon as they are able” (p. 287). With such perspectives, the notion of modernity as an asymmetrical, or critical, phase does not seem to be a mere outbreak of temporal chauvinism. Instead it must be regarded as a natural result of a relative autonomous scientific, technological, and economic development. This historical development started off in what, from a Rawlsian perspective, was a symmetrical situation, meaning that every genera- tion living had roughly the same historical responsibility. Decisions made about, for instance, resource allocation were essentially reversible, and although wrong- doers in one generation could cause great harm, their actions were nevertheless temporally and spatially limited. Yet one could argue that the seeds of change leading to modern society were visible already hundreds of years ago, and that those then living had a choice on whether to suppress or support them. Recalling astronomers such as Galileo Galilei this seems to be, at least partially, a valid objection. Thus, we cannot precisely determine the extension of the historical asymmetry without risking deeper philosophical waters and puzzles on topics as determinism and causation. However, on a general level it is worth arguing that the asymmetry widens significantly as potentiality is transformed into actuality. In practical terms, this means (for instance) that the responsibility falls heavier on generations actually deploying nuclear weapons than on generations that merely contribute to the underlying scientific research. Following this line of reasoning, we can approximate that humanity entered into its critical phase during the second half of the 20th century. Now, let T1 denote the point in time when we left the symmetrical baseline on which humanity had existed ever since our species first emerged. As we move right in the diagram (closer to the present) the asymmetry widens as material and energy flows are increased and weapon technology advances. This process is not linear, some innovations (as the hydrogen bomb) meant a radically increased asymmetry whereas others (the introduction of new sustainable patterns as recy- cling) may, in fact, slow its growth. When entering the present, T2, the critical phase is in full duration causing an asymmetry between generations. The timing is by no means precise nor is it sug- gested that the asymmetry cannot widen further. It is an empirical question, far beyond the scope of this article, to determine to what extent the present asym- metry is sustainable into the next decades or even centuries. This is symbolized by the question mark at the right end of the critical phase (see Figure 2). However, the argument plays on a somewhat different level. If we are ready to accept the notion that this asymmetry is unjust because it deprives coming gen- erations of opportunities that they rightfully are entitled to (according to what we ourselves would demand beyond a veil of ignorance not knowing which genera- tion we will belong to) we can perceive the present as a bifurcation. It is a bifur- cation in which, at least, two distinct strategies can be discerned. In the name of 242 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 242 simplicity I call these two strategies (a) descent and (b) ascent respectively, with reference to the figure above. Both strategies span a longer time frame and address where humanity is supposed to find itself at T3. The strategies should not be considered as constitutive plans but as tentative regulative ideas (Karlsson, 2005). As such they are Weberian ideal types, drawn from theoretical reasoning without any claim of being exhaustive. They are uni- fied in the concern that, if left unchecked, current trends could lead to a fright- ening future in which all finite high-grade resources are used up, the ecological systems are in a state of collapse, and humanity is left with nothing but a metaphorical landfill of no-longer-working consumer goods. DESCENT FROM MODERNITY The first strategy is, in fact, already well known to any reader moderately familiar with the deep ecological movement (Pepper, 2005). Its fundamental rationale is the perceived incompatibility between the industrial life form and the external environment. It holds that the flourishing of human life requires a radically different society living in an enduring, dynamic equilibrium with other forms of life. In its philosophical foundations this strategy may challenge anthro- pocentrism but as a political response to the asymmetry of the critical phase it is primarily concerned with the welfare of future human generations. To achieve this end, the strategy looks away from the growth economy and seeks dramati- cally reduced material and energy flows, a decentralization of the political sphere, and the emergence of strong local self-reliant communities on a global scale (Naess, 1989, p. 143). As a strategy it differs from the school of ecological modernization on whether the “greening” of society can be done in time to avoid an irreversible ecocatastrophe but also on whether an environmental friendly global consumer society is at all possible to achieve (Sachs, 1993). Answering no to the second question and having strong doubts about the first, the political activism of this scenario projects profound changes to production and consumption, including the limitation of human population. As trade is to be built down, the old system that Karlsson / INTERGENERATIONAL JUSTICE 243 Baseline (symmetrical) Critical phase (asymmetrical) Ascent strategy (symmetrical) T1 T2 Bifurcation T3 ? Time FIGURE 2: The Extent of Asymmetries Over Time O&E288227.qxd 4/21/2006 8:47 PM Page 243 whatever is consumed is produced within the horizon is to be restored, reducing global interdependence and thus also the amount of energy and material required. The purpose of this strategy of “demodernization” is straightforwardly defined as bringing human activity back within the limits of this planet. Disarmament is thought to follow from decentralization as democratic participation increases, giving way to local defence patterns and nonviolent groups (Næss, 1989, p. 99). The historical asymmetry between generations in terms of responsibility will thus narrow as the instrumental capacity is reduced and eventually lowered to a level consistent with the premodern world. ASCENT FROM MODERNITY I now experiment with the thought that there is another aperture to a signifi- cant future for mankind. If the first strategy contains some ideas and concepts that are already discursively established, this second strategy forces us to rethink our very images of the future. At first it may seem as if this strategy is nothing but naïve technological optimism once again; the same spell that originally created the historical asymmetry, but this time more forcefully pronounced. However, it is already here worth stressing that the optimism of this strategy is conditional and dependent on institutional arrangements significantly different from those currently existing. Before going any further I want to start by, once again, rather dispassionately going through what caused the historical asymmetry of moder- nity. Within the spatial limits we used to define our pool of resources and sinks, the scarcity has made decisions on resource allocation irreversible and thus no longer open for coming generations. This was, in turn, regarded as unjust from the standpoint of intergenerational distributive justice. Our unique historical responsibility was then further reinforced by the existence of a weapon technol- ogy capable of annihilating humanity, even by mistake (Blair, 1993). Forty years ago the first of these problems was significantly differently per- ceived. As the optimism of the space programme peaked, the whole solar system was seen as the land of opportunity on which the future of humanity would be built. Since then manned missions to the moon, astronomical observations of the asteroid belt, together with unmanned probes to our nearby planets, have indeed shown that the resources available are almost unlimited (Zubrin, 2000). This is especially true for high-grade minerals and rare nuclear isotopes as H3. If we use our imagination we also see that it, in theory, would be possible to move many environmentally dangerous industries and processes off the planet’s surface and into orbit, something that would finally given substance to the Environmental Kuznets Curve. Today however, the mere suggestion of these kinds of ideas pro- vokes, at best, a condescending smile. On a more-articulated level, such projects are considered impossible, mostly for economic reasons but also of course based on current technological level. Among more progressive thinkers there is also a widespread belief that we have more-pressing questions to attend here on Earth before we can even voice such matters. It is indeed true that the economic costs related to historically unique projects of this kind would be far beyond what any now-existing state can muster. Moreover, diverting money from other civilian programmes, as social welfare, would not only cause tremendous hardship but would also prove insufficient. According to the Stockholm International Peace Research Institute, world military expenditures amounted to a conservatively estimated U.S. $1035 billion 244 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 244 in 2004 (Stockholm International Peace Research Institute, 2005). This works out to $2.8 billion each day—more than $100 million an hour. Of this, the United States alone accounted for 47%. Confronted with such figures, especially in com- parison with the estimated $19 billion required to eliminate starvation and mal- nutrition worldwide, it is easy to become disillusioned (Worldwatch Institute, 2003). At the same time, we have to remember that all these resources are used to protect us, not from any external threat, but from ourselves. Thus, within an entirely different global institutional framework, nearly all this money could be directed to other purposes. Here we begin to discern how the two dilemmas, the scarcity of resources and weapons of mass destruction, causing the asymmetry may be possible to solve through one common strategy. If a significant part of the $1035 billion spent on military funding yearly could be directed to space indus- trialization, research in the high-energy field (Hoffert et al., 2002), and global redistribution of wealth, a number of positive outcomes might be within reach. We would (a) avoid depletion of many nonrenewable resources as the present and all future generations would have access to nearly unlimited sources of energy and material. We would also (b) be able to store pollutants and toxic waste out- side the boundaries of our own planet. Finally, if some of the reduced spending on military purposes is indeed used to lessen the global inequalities we would (c) be able to start building a sufficiently stable global community for which (d) the complete disarmament of weapons of mass destruction would be the ulti- mate goal. If all this could be achieved, then we would no longer, to once again speak with Sagan, have “all our eggs in a single stellar basket” (Sagan, 1994, p. 319) nor would the eggs stand any particular risk of being smashed (we are tempted to add). The historical asymmetry would thus be discontinued as gener- ations coming after us would have, not a smaller, but an enormous range of opportunities, including the colonization of other solar systems (Prantzos, 2000). Although the instrumental capacity is dramatically increased in this strategy, political actions would become less irreversible as the expansion unfolds. EVALUATION Of course it is impossible to exhaustively evaluate two such grand macro-level schemes as the strategies presented above. Nevertheless, it is my conviction that at least the first strategy is continuously evaluated among policy makers world- wide, but then as a mere antithesis, representing what no sensible person is ready to sacrifice for the survival of the ecological systems, no matter what remote gain future generations may claim it would give them. It is something paradoxical with the suggestion that neither strategy would begin to surface politically until the present situation has become critical. At such a moment, it is worth noting that the first strategy would have to be even more radical as “the longer we wait the more drastic will be the measures needed” (Naess, 1989, p. 31). Somewhat of the opposite is true for the second strategy, it requires an early inception to be at all possible. Naturally, if nonrenewable resources really become scarce then space industrialization would be economically and practically unfeasible. Thus the cur- rent path may first lead to an emphasized bifurcation as technology develops (i.e., the ascent strategy becomes more feasible) before merely one option, the first strategy, remains. Of course, it could in theory be possible that neither strategy will be necessary at all. Other voices, as Bjørn Lomborg’s (2001), argue that the whole idea of a looming ecological crisis “does not seem to be backed up by the Karlsson / INTERGENERATIONAL JUSTICE 245 O&E288227.qxd 4/21/2006 8:47 PM Page 245 available evidence” (p. 4) and thus no problem of intergenerational distributive justice exists either. According to Lomborg, nonrenewable resources are not lim- ited at all since we always will find new deposits as prices increase (pp. 147-148). Historical data for reserves of oil, coal, and iron ore also support this claim. Yet, together with Donella Meadows (2004, p. 89) and others I believe that much of the debate on this topic has been confused by an inability to discriminate between resources and known reserves; resources denote the total quantity of a material in the crust of the earth, reserves are the amount of the material that has been dis- covered or inferred to exist. Reserves may go up as prospecting technology improves or prices increase; resources on the other hand only, and inexorably, go down (while limiting the discussion to this planet). So far, the environmental movement has primarily described the road to a sus- tainable society as a matter of different policies of conservation combined with a reduction of energy and material flows, most recently expressed as virtues char- acteristic of an “ecological citizenship” (Dobson, 2003). Intuitively there is some- thing deeply normatively agreeable with such an approach and the restoration of the balance between humankind and its environment that it offers. However, scratching beneath the glossy surface of ecotopia, doubts seem warranted about (a) whether a democratic transition to such a state is at all feasible and (b) to what extent the descent strategy is compatible with the “just saving principle.” First addressing the transition process, it is clear that any attempt to disentan- gle the thick interdependent web of global transactions would have numerous unintended and probably catastrophic consequences. Considering its revolution- ary scope, it would also face many of the problems endemic to what Karl Popper (2002) termed “utopian social engineering.” By imposing its comprehensive conception of the good it would risk violating fundamental democratic values and individual rights. Contemporary green authors such as Robin Eckersley (2004) may reject all notions of eco-authoritarianism with its “strict regime of ecologi- cal controls and resource rationing” (p. 1). Yet it is hard to see exactly how indi- viduals resisting changes in lifestyle are to be made to comply. Marcel Wissenburg (1998) well captured this dilemma: “liberal democracy is totally incompatible with attempts to dictate people’s tastes and preferences, yet we may reasonably assume that preferences are one of the determining factors of sustainability” (p. 7). Moreover, this dilemma of compliance is likely to reappear on the interna- tional level, effectively creating a classic game of prisoners’ dilemma. We know that only if globally orchestrated does the descent strategy make sense. Otherwise, without a global span, the question “why should we lower our welfare in favour of environmental sustainability if others don’t?” would immediately arise. Yet, even with such a global covenant, the temptation for any state or group to “cheat” would be tremendous. Naturally, the most-obvious possible gains from cheating are military and strategic. Any geographic territory that would reject the anti- modernistic creed would pose a severe threat to all of its neighbours, effectively creating a security dilemma. The problem would be further emphasized by the fact that the countries that today contribute the most to environmental degrada- tion, and whose participation is thus most needed, are also those which would see the largest relative reduction in their military capacity. If the road toward environmental sustainability seems to be bumpy from a democratic and a military strategic perspective, what do we have to say about the destination? Recalling Rawls, the picture is not unambiguous. On one hand it 246 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 246 seems clear that a just society requires a certain material base but, on the other hand, that base cannot be bought at the expense of future generations. In theory it could be that the limits of growth are so definite, and the ecological carrying capacity so limited, that a decentralized, low-energy society with minimal instru- mental capacity is indeed the optimal long-term configuration; and thus, a hypo- thetical intergenerational meeting would agree to a corresponding saving principle. Then modern society, as we know it, would represent nothing but an unsustain- able overshoot. The political problem is that, for the present, the discourse of reduction, conservation, and moderation appeals merely to a few idealists among whom I cannot even count myself. The majority of us are simply not prepared to abandon the modern path, unless forced to do so by nature itself. In fact, witnessing the massive opposition against, for instance, the Kyoto Treaty (which in itself was watered down and most moderate), any dramatic reduction of global economic activity seems rather implausible. Accepting this state of affairs, the article pre- sented a radically different strategy that tried to reconcile the politics of scarcity with the kind of technological optimism normally found only among those who hold that no resource scarcity whatsoever exists (Salmon, 1977). Instead of try- ing to reverse the motivational forces underpinning modern society, a conscious ascent strategy would build directly on the Enlightenment legacy. Yet the idea that radical modernization should substitute meaningless private consumption and armament is however possible to challenge on several grounds. The criticism mostly comes down to one thing, it is naïve.7 The strategy rests on the (unrealis- tic?) assumption that the global system could somehow be recast so that a vastly different resource allocation becomes possible. World federalism has perhaps never been further away, with the war in Iraq and the growing criticism toward the United Nations (Baratta, 1999). However, if anything, history has proven to hold a capacity for change (Kuran, 1995). As the European Union (EU) is enlarged and further integrated it is worth quoting in length what the British federalist Henry Brailsford wrote on the brink of the Second World War 1939: What shall we have gained if we can realise anything resembling this project of Federation? Firstly and chiefly we shall abolish internecine war in Europe, the homeland of our civilisation. . . . In the positive sense we shall achieve vastly more: we shall rescue the priceless value of civilisation itself. . . . If we abandon the old concept of the Sovereign State, it will not be because we have changed our view about a legal theory. It will be because we have reached an ideal of human frater- nity that embraces our neighbours, who in other languages think the same civilised thoughts. We can end war only by widening. (cited in Mayne & Pindar, 1990, p. 81) Today, this then utopian idea has been realized. War between the countries of the EU is no longer imaginable. Thus it may be premature to declare that the same development could not take place on a global scale, if merely the political will existed. For centuries, the United States of America has made it evident that human beings from all over the planet can come together and unite under new ideals, consequently proving essentialistic conceptions of irreconcilable differ- ences between human races wrong. Considering to what extent critique of utopianism has become part of a con- temporary reflexivity, it is still unclear if such observations suffice to convince us about the plausibility of the ascent strategy. Yet it is important to stress that the image of a technological advanced world society of international peace does not have Karlsson / INTERGENERATIONAL JUSTICE 247 O&E288227.qxd 4/21/2006 8:47 PM Page 247 to be interpreted as a static utopia of complete harmony. Radical as it may seem, the ascent strategy is nothing but a political and institutional response to certain risks posed by modernity. Just as the EU hardly has resolved all political tensions within Europe, world federalism would not be a panacea for all human conflicts. However, it would substantially change the means used to settle these conflicts. CONCLUSIONS I would like to finish this article by returning to the original question of asym- metries in contractual conceptions of intergenerational justice. This is an idea that I believe has not been widely discussed. Much debate on for instance Rawls’s just saving principle is located either on a philosophical or an economic level without drawing out the possible political implications. The same goes for theories of how distributional conflicts between generations should be resolved (Asheim & Tungodden, 2004). This being a political interpretation I admit that, just as “for each traditional conception of justice there exists an interpretation of the initial sit- uation in which its principles are the preferred solution” (Rawls, 1971, p. 121), there are other ways of interpreting what an asymmetry means and what actions it may motivate. However, my foremost normative concern has been that the present generations exercise a disproportional influence on the opportunities available to future generations. If responsibility is asymmetrical, accountability is even more so; though future generations may benefit or suffer from our political decisions they cannot hold us accountable nor do they possess any bargaining power when it comes to influencing our actions. In fact they are only “virtually” represented as far as our moral sentiments permit. Thus, any contractual theory aimed at enhanc- ing those sentiments and intuitions becomes a priority. Unfortunately, as ethical theories increasingly have taken the standpoint that obligations to others only arise from actual relations with them (Dobson, 1998, p. 65), a universalistic theory that even strives for temporal and spatial neutrality is likely to come under heavy fire. There is something deeply regrettable and paradoxical with the fact that as our responsibility is growing we tend to seek moral theories stating that no such responsibility exists. Still I want to share the hope of Sagan that one day our descendents will “marvel at how vulnerable the repository of all our potential once was, how perilous our infancy, how humble our beginnings, how many rivers we had to cross before we found our way” (Sagan, 1994, p. 334). NOTES 1. Although such a universalistic stance may be compatible with one reading of A Theory of Justice it is definitely at odds with the later, more “political”, Rawls who rejected the possibility of finding “a conception of justice suitable for all societies regard- less of their particular social or historical circumstances” (Rawls, 1980, p. 518). 2. This corresponds closely to the statement that ”the parties are to be understood so far as possible solely as moral persons and in abstraction from contingencies” (Rawls, 1993, p. 273). 3. Acknowledging the profound complexity of the nonidentity problem, I admit that this “solution” is not exhaustive. Although unresolved identity is one aspect, the number of par- ties behind the veil of ignorance is another, and I fear, much more difficult aspect of the same problem. Considering that this number is dependent on which institutions and policies are adopted by the meeting and vice versa, we are faced with a classic chicken-or-the-egg 248 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 248 paradox (Barry, 1989, p. 506). To make things even worse, a third mind-bending complica- tion is to draw neat cut-off lines for when the human lineage starts and ends respectively. 4. The resulting theory of justice is thus not one of mutual advantage or reciprocity (as the unidirectionality of time makes all such arrangements impossible) but rather one based on the formulation of impartial principles to which no generation reasonably would reject. 5. This is not to say that we may not feel ethically obliged to honour the reputation or legacy of long-dead generations. 6. Although it may be theoretically possible to imagine premodern societies capable of establishing and preserving just institutions and the fair value of liberty, it seems as if the modern welfare state is more in line with Rawls’s notion of the just saving principle, especially considering the capacity of a well-ordered society to provide education and more advanced distributive schemes (Rawls, 2001, pp. 184-188). 7. Another line of criticism says that the military-industrial complex plays a pivotal role in the economic systems of advanced industrial countries and that reducing its fund- ing could have serious negative social economic implications and slowing innovation. The criticism is not unreasonable, and I believe that simply discontinuing the flow of money and instead allocating it to, for instance, social welfare (ultimately private consumption) could do serious harm to the economic system. However, transferring it to space research, which in fact shares much of the high-tech nature of advanced weapon systems, would not have such negative external effects and is, in fact, likely to increase the number of spin- offs to other sectors compared with the armament industry. REFERENCES Asheim, G., & Tungodden, B. (2004). Resolving distributional conflicts between genera- tions. Economic Theory, 24, 221-230. Baratta, J. P. (1999). The international federalist movement: Toward global governance. Peace and Change, 24, 340–372. Barry, B. (1978). Circumstances of justice and future generations. In B. Barry & R. I. Sikora (Eds.), Obligations to future generations (pp. 204-248). Philadelphia: Temple University Press. Barry, B. (1989). Democracy, power and justice—Essays in political theory. Oxford, UK: Clarendon. Beckerman, W. (1999). Sustainable development and our obligations to future generations. In A. Dobson (Ed.), Fairness and futurity (pp. 71-92). Oxford, UK: Oxford University Press. Blair, B. (1993). The logic of accidental nuclear war. Washington, DC: Brookings Institution. Caney, S. (2002). Survey article: Cosmopolitanism and the law of peoples. Journal of Political Philosophy, 10, 95-123. Cosimo, P. (2004). Consumption as an investment (Vol. 1). London: Routledge. Daly, H. (1990). Towards some operational principles of sustainable development. Ecological Economics, 2, 1-6. de-Shalit, A. (1995). Why posterity matters—Environmental policies and future genera- tions. London: Routledge. Dobson, A. (1998). Justice and the environment. Oxford, UK: Oxford University Press. Dobson, A. (2003). Citizenship and the environment. Oxford, UK: Oxford University Press. Eckersley, R. (2004). The green state. Cambridge, MA: MIT Press. Feenberg, A. (2002). Transforming technology. Oxford, UK: Oxford University Press. Fisher, P. (1991). Fantasy and politics—Visions of the future in the Weimar Republic. Madison: University of Wisconsin Press. Fitzpatrick, T. (2001). Dis/counting the future. In R. Sykes, C. Bochel, & N. Ellison (Eds.), Social policy review 13 (pp. 227-246). Bristol, UK: Policy Press. Gosepath, S. (2001). The global scope of justice. Metaphilosophy, 32, 135-159. Karlsson / INTERGENERATIONAL JUSTICE 249 O&E288227.qxd 4/21/2006 8:47 PM Page 249 Herman, A. (1997). The idea of decline in Western philosophy. New York: Free Press. Hoffert, M., Caldeira, K., Benford, G., Criswell, D. R., Green, C., Herzog, H., et al. (2002). Advanced technology paths to global climate stability: Energy for a greenhouse planet. Science, 298, 981-987. Kant, I. (2003). Idea for a universal history. In R. Scharff (Ed.), Philosophy of technology: An anthology (pp. 38-44). Malden, MA: Blackwell. Karlsson, R. (2005). Why the far-future matters to democracy today. Futures, 37, 1095-1103. Kukathas, C., & Pettit, P. (1990). Rawls—A theory of justice and its critics. Stanford, CA: Stanford University Press. Kuran, T. (1995). The inevitability of future revolutionary surprises. American Journal of Sociology, 100, 1528-1551. Kymlicka, W. (2002). Contemporary political philosophy. Oxford, UK: Oxford University Press. Lomborg, B. (2001). The sceptical environmentalist. Cambridge, UK: Cambridge University Press. Mayne, R., & Pindar, J. (1990). Federal union: The pioneers. New York: St. Martin’s. Meadows, D. (2004). Limits to growth—The 30-year update. White River Junction, VT: Chelsea Green Publishing. Næss, A. (1989). Ecology, community and lifestyle. Cambridge, UK: Cambridge University Press. Norton, B. (1999). Ecology and opportunity: Intergenerational equity and sustainable options. In A. Dobson (Ed.), Fairness and futurity (pp. 118-150). Oxford, UK: Oxford University Press. Paden, R. (1997). Rawls’s just saving principle and the sense of justice. Social Therapy and Practice, 23, 27-52. Page, E. (2006). Climate change, justice and future generations. Cheltenham, UK: Edward Elgar. Parfit, D. (1984). Reasons and persons. Oxford, UK: Oxford University Press. Pepper, D. (2005). Utopianism and environmentalism. Environmental Politics, 14, 3-22. Popper, K. (2002). The poverty of historicism. London: Routledge. Prantzos, N. (2000). Our cosmic future. Cambridge, UK: Cambridge University Press. Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press. Rawls, J. (1980). Kantian constructivism in moral theory. Journal of Philosophy, 77(9), 515-572. Rawls, J. (1993). Political liberalism. New York: Columbia University Press. Rawls, J. (1999). A theory of justice (2nd ed.). Cambridge, MA: Harvard University Press. Rawls, J. (2001). Justice as fairness—A restatement. Cambridge, MA: Harvard University Press. Sachs, W. (Ed.). (1993). Global ecology: A new arena of political conflict. London: Zed Books. Sagan, C. (1994). Pale blue dot. New York: Ballantine. Salmon, J. D. (1977). Politics of scarcity versus technological optimism: A possible reconciliation? International Studies Quarterly, 21, 701-720. Spaargaren, G., Mol, A. P. J., & Buttel, F. H. (2000). Environment and global modernity. London: Sage. Stockholm International Peace Research Institute. (2005). SIPRI yearbook 2005: Armaments, disarmament and international security. Oxford, UK: Oxford University Press. Worldwatch Institute. (2003). Vital signs 2003. London: Earthscan. Wissenburg, M. (1998). Green liberalism. London: UCL Press. World Wildlife Fund. (2004). Living planet report 2004. Cambridge, UK: Banson Productions. Zubrin, R. (2000). Entering space. New York: Jeremy P. Tarcher/Putnam. Rasmus Karlsson earned his MA in 2004 from the University of Örebro, Sweden. He is currently working on a doctoral dissertation about political parties and their images of the future, splitting his time between the University of Vienna, Austria, and the University of Lund, Sweden. 250 ORGANIZATION & ENVIRONMENT / June 2006 O&E288227.qxd 4/21/2006 8:47 PM Page 250 << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.3 /CompressObjects /Off /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJDFFile false /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /ColorConversionStrategy /LeaveColorUnchanged /DoThumbnails false /EmbedAllFonts true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams true /MaxSubsetPct 100 /Optimize false /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveEPSInfo true /PreserveHalftoneInfo false /PreserveOPIComments false /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Remove /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox false /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile (U.S. Web Coated \050SWOP\051 v2) /PDFXOutputCondition () /PDFXRegistryName (http://www.color.org) /PDFXTrapped /Unknown /SyntheticBoldness 1.000000 /Description << /FRA <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> /JPN <FEFF3053306e8a2d5b9a306f30019ad889e350cf5ea6753b50cf3092542b308000200050004400460020658766f830924f5c62103059308b3068304d306b4f7f75283057307e30593002537052376642306e753b8cea3092670059279650306b4fdd306430533068304c3067304d307e305930023053306e8a2d5b9a30674f5c62103057305f00200050004400460020658766f8306f0020004100630072006f0062006100740020304a30883073002000520065006100640065007200200035002e003000204ee5964d30678868793a3067304d307e30593002> /DEU <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> /PTB <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> /DAN <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> /NLD <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> /ESP <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> /SUO <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> /ITA <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> /NOR <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> /SVE <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> /ENU <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> >> >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_yawyllxvyzdv7bf5jycwoadigm	----	RACIAL JUSTICE DEMANDS TRUTH & RECONCILIATION Michael A. Lawrence This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. This site is published by the University Library System of the University of Pittsburgh as part of its D- Scribe Digital Publishing Program and is cosponsored by the University of Pittsburgh Press. UNIVERSITY OF PITTSBURGH LAW REVIEW Vol. 80 ● Fall 2018 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu 69 RACIAL JUSTICE DEMANDS TRUTH & RECONCILIATION Michael A. Lawrence* The Negro race in America, stolen, ravished and degraded, struggling up through difficulties and oppression, needs sympathy and receives criticism; needs help and is given hindrance, needs protection and is given mob-violence, needs justice and is given charity, needs leadership and is given cowardice and apology, needs bread and is given a stone. This nation will never stand justified before God until these things are changed.1 —National Declaration of Principles (W.E.B. Du Bois), 1905 I. INTRODUCTION Ever since Europeans first settled the continent over four hundred years ago, racial injustice has existed in North America. The attempted destruction of Indigenous Nations and families in the pursuit of land and resources, along with the formal legal recognition of human bondage in the United States for nearly a century following the nation’s birth in 1776, created fundamental cracks that have never been addressed. While the Thirteenth Amendment officially abolished slavery in 1865, and the Fourteenth Amendment mandated equal protection in 1868, nearly another century passed before “separate but equal” was repudiated and some progress was made.2 Today we still see persistent racial inequities throughout American society. The criminal justice/prison complex disproportionately targets, captures and incarcerates persons of color; and police shootings of unarmed black victims—such as of Michael * Foster Swift Professor of Constitutional Law & Professor of Law, Michigan State University College of Law. 1 NIAGARA MOVEMENT, NIAGARA’S DECLARATION OF PRINCIPLES (1905). 2 U.S. CONST. amend. XIII, XIV; Brown v. Board of Education, 347 U.S. 483 (1954). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 7 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Brown in Ferguson, Missouri in August 2014—are grimly commonplace.3 Even more recently, the propriety of continuing to honor the Confederacy’s memory (and, necessarily, its core organizing principle—slavery) has led to violent clashes in Charlottesville, Virginia, and elsewhere.4 It is difficult to deny, in light of this history, that America has a major problem of race. What can be done? Truth and Reconciliation is a process that has been used effectively in other nations and cultures (e.g., South Africa; Rwanda; Germany; Indigenous Nations) following times of deep racial discord/violence.5 The idea is that true healing can begin only when past atrocities and injustices are first acknowledged and addressed. Scholars, policymakers, activists and thought-makers must fully embrace—and act upon—the Reverend Dr. Martin Luther King, Jr.’s insight that: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”6 It is time for Americans to engage, finally, in processes of Truth and Reconciliation; first to acknowledge the atrocities of slavery and the sobering realities of its aftermath, then to attempt, through conscious acts of reconciliation and healing, to account for the massive harms done. Part II of this Article details the truth of four centuries of racial injustice in North America, from the days of slavery through Jim Crow and the Civil Rights Era to the present day. Part III addresses the bases for reconciliation, and discusses the necessary elements of awareness, acknowledgement and remediation. It then provides examples of truth and reconciliation processes at the local, state, national and international levels. 3 Julie Bosman & Emma G. Fitzsimmons, Grief and Protests Follow Shooting of a Teenager, N.Y. TIMES (Aug. 10, 2014), https://www.nytimes.com/2014/08/11/us/police-say-mike-brown-was-killed-after- struggle-for-gun.html. 4 Sheryl Gay Stolberg & Brian M. Rosenthal, Man Charged After White Nationalist Rally in Charlottesville Ends in Deadly Violence, N.Y. TIMES (Aug. 12, 2017), https://www.nytimes.com/2017/ 08/12/us/charlottesville-protest-white-nationalist.html. 5 See Gideon Rose, The Undead Past, FOREIGN AFFAIRS (Jan.–Feb. 2018) (exploring the issue of atonement in the context of atrocities that have occurred over the past century in six different nations). See also infra notes 221–42 and accompanying text. 6 MARTIN LUTHER KING, JR., Letter from a Birmingham Jail, in WHY CAN’T WE WAIT (1964). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 7 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu II. TRUTH—FOUR CENTURIES OF RACIAL INJUSTICE That W.E.B. Du Bois’s anguished words spoken in 1903 lamenting racial injustice still ring true today, over a century later, is morally indefensible. It is past time for Americans to take a sober, honest account of the truth: of America’s “original sin” of slavery, together with its subsequent history of systemic racial injustice. Du Bois noted in 1903 that “the problem of the Twentieth Century is the problem of the color line”;7 some sixty years later in 1967, the Reverend Dr. Martin Luther King, Jr. observed that “there has never been any single solid, determined commitment on the part of the vast majority of white Americans . . . to genuine equality for Negroes.”8 Both of these statements remain true today, nearly two full decades into the twenty-first century. The “color line” remains this nation’s singular problem; and most white Americans have still failed to embrace a truly egalitarian approach to race-relations. Du Bois and King both “spoke the truth that we have yet to fully acknowledge.”9 It is never too late to try to make amends. The first step is to acknowledge the truth. “I’m for Truth, no matter who tells it. I’m for Justice, no matter who it’s for or against,” declared Malcolm X.10 “Truth has a power of its own,” Howard Zinn explained. “[T]hat everything we do matters is the meaning of people’s struggle here . . . and everywhere.”11 So, then, how do we discover the “truth?” Because histories are written by the powerful (the conquerors), not by the weak (the conquered), too often the full truth of any situation is opaque and elusive. In his monumental work, The Peoples History of the United States, Howard Zinn explains how “[t]he history of any country . . . conceals fierce conflicts of interests . . . between conquerors and conquered, masters and slaves, capitalists and workers, dominators and dominated in race and sex.”12 In such a world of conflict, a world of victims and executioners, Zinn continues, “it is 7 W.E.B. DU BOIS, THE SOULS OF BLACK FOLK, at vii (1903). 8 MICHAEL ERIC DYSON, TEARS WE CANNOT STOP 39–40 (St. Martin’s Press 2017). 9 Id. 10 MALCOLM X, AUTOBIOGRAPHY OF MALCOLM X (1973). 11 HOWARD ZINN, A POWER GOVERNMENTS CANNOT SUPPRESS 16 (2007). 12 HOWARD ZINN, A PEOPLE’S HISTORY OF THE UNITED STATES 10 (2005). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 7 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu the job of thinking people, as Albert Camus suggested, not to be on the side of the executioners.”13 Taking Zinn’s advice, this section looks to the experiences of people of color in outlining the truth of four hundred years of racial oppression in America, beginning with slavery in the colonial era and continuing into the new Nation; then running through another century of racial apartheid; through to the present day, where mass incarceration and policing tactics, along with the lingering effects of an economic system stacked against people of color, have all combined to the present- day status quo marked by widespread systemic racial injustice. A. Slavery From the earliest days of the slave markets of Virginia in 1619, to the economic disadvantages and disproportionately-skewed criminal justice system of 2018, a persistent, deeply-rooted systemic racism has worked, without interruption, to oppress people of color on this continent. Slavery in North America was a 250-year nightmare of unimaginable proportions for black folks. Husbands and wives were regularly separated from each other and their children after being sold to different masters. Ta’Nehisi Coates elaborates: Forced partings were common in the antebellum South . . . . Twenty-five percent of interstate trades destroyed a first marriage, and half of them destroyed a nuclear family.14 When the wife and children of Henry Brown, a slave in Richmond, Virginia, were to be sold away, Brown searched for a white master who might buy his wife and children to keep the family together. He failed: The next day, I stationed myself by the side of the road, along which the slaves, amounting to three hundred and fifty, were to pass. The purchaser of 13 Id. (“[I]n that inevitable taking of sides which comes from selection and emphasis in history, I prefer to try to tell the story of the discovery of America from the viewpoint of the Arawaks, of the Constitution from the standpoint of the slaves, of Andrew Jackson as seen by the Cherokees, of the Civil War as seen by the New York Irish, of the Mexican War as seen by the deserting soldier of Scott’s army, of the rise of industrialism as seen by the young women in the Lowell textile mills, of the Spanish-American War as seen by the Cubans, the conquest of the Philippines as seen by black soldiers on Luzon, the gilded Ages as seen by southern farmers, the First World War as seen by socialists, the Second World War as seen by pacifists, the New Deal as seen by blacks in Harlem, the postwar American empire as seen by peons in Latin America.”). 14 Ta’Nehisi Coates, The Case for Reparations, THE ATLANTIC, June 2014, at 54. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 7 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu my wife was a Methodist minister, who was about starting for North Carolina. Pretty soon five wagon-loads of little children passed, and looking at the foremost one, what should I see but a little child, pointing its tiny hand towards me, exclaiming, “There’s my father; I knew he would come and bid me good-bye.” It was my eldest child! Soon the gang approached in which my wife was chained. I looked, and beheld her familiar face; but O, reader, that glance of agony! may God spare me ever again enduring the excruciating horror of that moment! She passed, and came near to where I stood. I seized hold of her hand, intending to bid her farewell; but words failed me; the gift of utterance had fled, and I remained speechless. I followed her for some distance, with her hand grasped in mine, as if to save her from her fate, but I could not speak, and I was obliged to turn away in silence.15 In a time when telecommunications were primitive and blacks lacked freedom of movement, the parting of black families was a kind of murder. Here we find the roots of American wealth and democracy—in the for-profit destruction of the most important asset available to any people, the family. The destruction was not incidental to America’s rise; it facilitated that rise. By erecting a slave society, America created the economic foundation for its great experiment in democracy.16 Folks were routinely beaten to force compliance, resulting in lasting scars and injuries and, not infrequently, death. Slavery “was not merely the antiseptic borrowing of labor,” Coates explains in his book, Between the World and Me, but also “rape so regular as to be industrial. There is no uplifting way to say this.”17 1. 1600s and early-1700s In the early colonial days, race was not the defining characteristic of the ill- treated subjugated classes. “In the early years of slavery,” Howard Zinn explains, “before racism as a way of thinking was firmly ingrained, . . . white indentured servants were often treated as badly as black slaves, [thus leading to] a possibility of cooperation” between black slaves and white servants.18 Historian Edmund Morgan, in his voluminous studies of slavery in Virginia, notes: 15 Id. 16 Id. 17 TA’NEHISI COATES, BETWEEN THE WORLD AND ME 103 (2015). 18 ZINN, supra note 12, at 37. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 7 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu There are hints that the two despised groups saw each other as sharing the same predicament. It was common, for example, for servants and slaves to run away together, steal hogs together. It was not uncommon for them to make love together. In Bacon’s Rebellion, one of the last groups to surrender was a mixed band of eighty negroes and twenty English servants.19 White masters, “initially at least, perceived slaves in much the same way they had always perceived servants . . . [as] shiftless, irresponsible, unfaithful, ungrateful, [and] dishonest,” Morgan explains.20 “Only one fear was greater than the fear of black rebellion in the new American colonies,” Zinn elaborated.21 “That was the fear that discontented whites would join black slaves to overthrow the existing order.”22 The white ruling class therefore took action. First, the Virginia Assembly passed slave codes authorizing discipline and punishment for slaves.23 Around the same time, Zinn recounts, “Virginia’s ruling class, having proclaimed that all white men were superior to black, went on to offer their social (but white) inferiors a number of benefits previously denied to them.”24 A law was passed in 1705 “requiring masters to provide white servants whose indenture time was up with ten bushels of corn, thirty shillings, and a gun, [while guns were banned to blacks, and] women servants were to get 15 bushels of corn and forty shillings. Also, the newly freed servants were to get 50 acres of land.”25 Morgan adds, “Once the small planter felt less exploited by taxation and began to prosper a little, he became less turbulent, less dangerous, more respectable. He could begin to see his big neighbor not as an extortionist but as a powerful protector of their common interests.”26 In the early 19 Id. (citing EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA (1975)). Bacon’s Rebellion was an armed rebellion in 1676 of around one thousand Virginia settlers led by Nathaniel Bacon—including an alliance of white indentured servants and black slaves—against the rule of Governor William Berkeley. Susan McCulley & Jen Loux, Historic Jamestowne: Bacon’s Rebellion, NATIONAL PARK SERVICE, https://www.nps.gov/jame/learn/ historyculture/bacons-rebellion.htm (last updated Feb. 26, 2015). 20 ZINN, supra note 12, at 37. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. at 38 (citing MORGAN, supra note 19). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 7 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu years of the 18th century, “the distinctions of status between white and black servants [were becoming] more and more clear.”27 Then, “[i]n the 1720s, with fear of slave rebellion growing, white servants were allowed in Virginia to join the militia as substitutes for white freemen. At the same time,” Zinn explains, “slave patrols were established in Virginia to deal with the ‘great dangers that may . . . happen by the insurrections of negroes . . . .’ Poor white men would make up the rank and file of these patrols, and get the monetary reward.”28 In short, Zinn suggests, “[r]acism was becoming more and more practical . . . [as] a realistic device for control.”29 “If freemen with disappointed hopes should make common cause with slaves of desperate hope,” Morgan adds, “the results might be [catastrophic] . . . [t]he answer to the problem . . . was racism, to separate dangerous free whites from dangerous black slaves by a screen of racial contempt.”30 2. Late 1700s—The Revolution; the Constitution’s Protection of Slavery The Declaration of Independence famously declares the existence of certain self-evident Truths: “[T]hat all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”31 Inspiring language—but dimmed by the reality that black slaves were never intended to be included among the “all Men” who would possess these natural rights. Indeed, the primary drafter of the phrase, Thomas Jefferson, was himself an active slaveholder and trader, as were forty of his other compatriots who signed the Declaration.32 So, black Americans were understandably reticent on the topic of the Revolution. Howard Zinn explains: 27 Id. at 56. 28 Id. 29 Id. 30 Id. (citing MORGAN, supra note 19). 31 THE DECLARATION OF INDEPENDENCE (U.S. 1776). 32 Dan Heintz, How Many Signers of the Declaration of Independence Owned Slaves?, MRHEINTZ.COM, http://www.mrheintz.com/how-many-signers-of-the-declaration-of-independence-owned-slaves.html (last visited May 24, 2018). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 7 6 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Thousands of blacks fought with the British. Five thousand were with the Revolutionaries, most of them from the North, but there were also free blacks from Virginia and Maryland. The lower South was reluctant to arm blacks. Amid the urgency and chaos of war, thousands took their freedom—leaving on British ships at the end of the war to settle in England, Nova Scotia, the West Indies, or Africa. Many others stayed in America as free blacks, evading their masters.33 No doubt it is jarring to Americans’ sense of their country as “the Land of the Free and Home of the Brave” to understand the Founding Fathers’ racist attitudes and practices. It is similarly disconcerting to recognize that the Nation’s founding governing document, the United States Constitution, expressly endorsed racist principles when ratified in 1789. Specifically regarding black Americans, the Constitution in its original formulation, as proposed in 1787 and ratified in 1789, contained four provisions supporting the institution of slavery. First, Article I, Section 2, clause 3 requires apportionment of the House of Representatives based on the “whole Number of free Persons” and “three fifths of all other Persons.”34 While the representatives of the Northern free states at the Constitutional Convention did not think the Southern slave states should be able to use the fact that they held many thousands of people in human bondage as a way to increase their representation in the new government, in the end they compromised with the southerners, who refused to support the Constitution without this and the other three provisions, by counting every slave as three-fifths of a person. Next, Article IV, Section 2 contains the Fugitive Slave Clause: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be 33 ZINN, supra note 12, at 88 (“In the northern states, the combination of blacks in the military, the lack of powerful economic need for slaves, and the rhetoric of Revolution led to the end of slavery—but very slowly. As late as 1810, thirty thousand blacks, one-fourth of the black population of the North, remained slaves. In 1840 there were still a thousand slaves in the North. In the upper South, there were more free Negroes than before, leading to more control legislation. In the lower South, slavery expanded with the growth of rice and cotton plantations.”). 34 U.S. CONST. art. I, § 2, cl. 3. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 7 7 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.35 In other words, any efforts by an anti-slave state, such as Pennsylvania, to provide refuge for escaped slaves—legislative or otherwise—would be ineffective. This provision, along with the Fugitive Slave Act of 1793,36 was the basis for federal cases striking down Northern states’ attempts to aid escaping slaves. In Prigg v. Pennsylvania in 1842, for example, the U.S. Supreme Court struck down two Pennsylvania laws prohibiting the removal of slaves who had escaped into the state.37 Writing for the Court, Justice Joseph Story reasoned that the very existence of the Union depended on slavery: The full recognition of this right and title [of ownership of slaves] was indispensable to . . . all the slaveholding States; and indeed was so vital . . . that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed.38 Story continued, “under and in virtue of the constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or any illegal violence.”39 In one respect, however, Prigg softened the Fugitive Slave Act, by holding open the possibility for a given state to forbid state officials from assisting in the capture and return of escaped slaves: “[S]tate magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”40 Even this allowance, though, was foreclosed by Congress less than a decade later with the Fugitive Slave Act of 1850, which “forcibly compelled citizens to assist in the capture of runaway 35 U.S. CONST. art. IV, § 2. 36 Fugitive Slave Acts, HISTORY, http://www.history.com/topics/black-history/fugitive-slave-acts (last visited May 24, 2018). 37 Prigg v. Pennsylvania, 41 U.S. 539, 611 (1842). 38 Id. 39 Id. at 613. 40 Id. at 622. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 7 8 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu slaves.41 It also denied slaves the right to a jury trial and increased the penalty for interfering with the rendition process to $1,000 and six months in jail.”42 For its part, Article I, Section 9, clause 1 prevented Congress from banning the importation of slaves until 1808: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year [1808].”43 While banning the slave trade at any time— present or future—is laudable, the fact it was allowed to continue at all, for any period of time, is highly problematic from a moral standpoint. It should also be noted that existing slaveholders before 1808 would benefit tremendously from the cessation of the importation of slaves, because overnight their “property” would suddenly become a scarce commodity. Under such circumstances slaveholders would have economic incentives to hoard slaves—especially women, who could reproduce new generations of slaves; and children, who could be expected to live longer beyond 1808 than adult slaves. Finally, Article V (the Constitution’s “how to amend” section) prohibits the Article I 1808 importation provision (described above) from being altered by constitutional amendment—one of only two provisions to be so limited.44 The fact that the 1808 provision was one of the only two “un-amendable” constitutional provisions indicates just how deeply ingrained the institution of slavery is in America’s DNA. It is understandable, then, that when it comes to America’s original sin—the Nation’s foundational accommodations to slavery—many regard the Constitution as an immoral “pact with the devil” that never should have happened in the first place. Abolitionist William Lloyd Garrison in 1832 declared: [W]e recognize the [Constitution], but with feelings of shame and indignation; and it will be held in everlasting infamy by the friends of justice and humanity throughout the world. It was compact formed at the sacrifice of the bodies and souls of millions of our race, for the sake of achieving a political object—an unblushing and monstrous coalition to do evil that good might come. . . . Who or 41 Fugitive Slave Acts, supra note 36. 42 Id. 43 U.S. CONST. art. I, § 9, cl. 1. 44 The other un-amendable provision designated by article V is the article I, section 3 requirement that each state will have an equal number of Senators. U.S CONST. art. V. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 7 9 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu what were the framers of our government, that they should dare confirm and authorize such high-handed villainy—such a flagrant violation of all the precepts and injunctions of the gospel—such a savage war upon a sixth of our whole population? . . . They had no awful power to bind themselves, or their posterity, for one hour—for one moment—by such an unholy alliance. It was not valid then—it is not valid now. . . . A sacred compact! A sacred compact! What, then, is wicked, and ignominious?45 And it is little surprise that the Nation’s holidays celebrating freedom and independence have long been met by African-Americans with more than a little ambivalence. Frederick Douglass, speaking at an 1852 Independence Day event of the Ladies of the Rochester [New York] Anti-Slavery Sewing Society, asked: What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, how mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety and hypocrisy— a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.46 45 Horace Seldon, The Constitution and a Call for Disunion, THE LIBERATOR FILES, http://theliberatorfiles.com/5-the-constitution-and-a-call-for-disunion/ (last visited May 24, 2018) (quoting William Lloyd Garrison). 46 Frederick Douglass, What to the slave is the 4th of July?, in FREDERICK DOUGLASS: SELECTED SPEECHES AND WRITINGS 188–206 (Philip S. Foner ed., 1999); see also David Remnick, American Dignity on the Fourth of July, THE NEW YORKER (July 10, 2017), https://www.newyorker.com/magazine/ 2017/07/10/american-dignity-on-the-fourth-of-july. Regarding another institution, the Star-Spangled Banner, African-Americans have ample reason to object in principle to the Anthem’s verse three couplet likely celebrating the massacre of former slaves who took the side of the British in the War of 1812: “No refuge could save the hireling and slave/From the terror of flight or the gloom of the grave.” Beatrice Dupuy, Is The National Anthem Racist? The California NAACP Wants it Gone, NEWSWEEK (Nov. 8, 2017), http://www.newsweek.com/naacp-urges-congress-replace-racist-national-anthem-705207. Francis Scott Key, who wrote the Star-Spangled Banner, “opposed abolition, owned slaves and once remarked that blacks were ‘a distinct and inferior race of people, which all experience proves to be the greatest evil that afflicts a community.’” Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 8 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu 3. The 1800s—Civil War; Emancipation Proclamation; Reconstruction Amendments Despite the claims of revisionist Southern histories to the contrary,47 there is little question the formation of the Confederate States of America in 1861 was based on the southern states’ desire to maintain the institution of slavery. As Confederate Vice President Alexander Stephens explained in his infamous “cornerstone speech” shortly before the Civil War: “[The Confederacy’s] corner-stone rests upon the great truth, that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”48 And Mississippi, when seceding from the Union, stated unequivocally: “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world.”49 For his part, Abraham Lincoln, at the beginning of his Presidency and the virtually-simultaneous onset of the Civil War, was equivocal on the issue of slavery. While personally opposed to the practice (stating in the 1850s, “[Slavery is] an unqualified evil to the negro, the white man, and the State”), as a lawyer he understood the Constitution’s unqualified support of the States’ authority to embrace the institution.50 Assessing the politics of the day, he doubted the support of moderate Republicans in the North and border-state South for seeking to ban slavery as a basis for prosecuting the War. Accordingly, in his first inaugural address he stated his willingness to allow the institution to continue in the South: “[I have] no purpose, directly or indirectly, to interfere with slavery in the States where it exists.”51 47 See infra notes 104–11 and accompanying text. 48 Alexander H. Stephens, “Corner Stone” Speech (Mar. 21, 1861) by Henry Cleveland, in ALEXANDER H. STEPHENS, IN PUBLIC AND PRIVATE: WITH LETTERS AND SPEECHES, BEFORE, DURING, AND SINCE THE WAR 717–29 (1886). Prior to secession, Stephens had been a Democratic Congressman from Georgia. Representative Alexander Stephens, GOVTRACK, https://www.govtrack.us/congress/members/alexander_ stephens/410317 (last visited May 25, 2018). 49 Roger Cohen, Confederate Statues and American Memory, N.Y. TIMES (Sept. 6, 2017), https://www .nytimes.com/2017/09/06/opinion/confederate-statues-trump.html. 50 James M. McPherson, Emancipation Proclamation and Thirteenth Amendment, in THE READER’S COMPANION TO AMERICAN HISTORY (Eric Foner & John A. Garraty eds., 2014) (ebook). 51 Id. For taking such positions, Lincoln’s reputation among many African-Americans was decidedly mixed. Frederick Douglass, for example, in a May 1876 event dedicating the Freedman’s Memorial near the U.S. Capitol, commented, “Abraham Lincoln was not, in the fullest sense of the word, either our man or model.” RONALD C. WHITE, AMERICAN ULYSSES: A LIFE OF ULYSSES S. GRANT 573 (2016). Early on R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 8 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu After nearly two years of War, however, Lincoln’s position on the slavery question had evolved; and on September 22, 1862, shortly after the Union’s military victory at Antietam, Lincoln signed the Emancipation Proclamation, stating that as of January 1, 1863, all slaves in the rebellious Southern states—3.1 million of the 4 million persons enslaved at the time—“shall be then, thenceforward, and forever free.”52 In a stroke of a pen, “the stakes of the Civil War shifted dramatically. A Union victory would mean no less than revolution in the South, where the ‘peculiar institution’ of slavery had dominated economic, political and social life [for many decades] in the antebellum years.”53 At roughly the same time as Lincoln signed the Emancipation Proclamation, Congress was discussing amending the Constitution to officially abolish slavery in all of the United States. The first of three “Reconstruction Amendments,” the Thirteenth Amendment was finally passed in Congress on January 31, 1865: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”54 This Amendment, which mooted (or nullified) most of the constitutional provisions described above (e.g., the Fugitive Slave Clause; the 1808 Importation Clause) that had enabled slavery to exist in the United States, was ratified by the requisite three-quarters of the states and became part of the Constitution on December 6, 1865.55 Lincoln was not optimistic about the prospect of blacks and whites being able to live in harmony in America, stating in August of 1862, for example: “Even when you cease to be slaves, you are yet far removed from being placed on an equality with the white race. . . . [So] it is better for us both, therefore, to be separated.” COLLECTED WORKS OF ABRAHAM LINCOLN, 1809–1865, at 372–75 (Roy P. Bassler ed., 1953). 52 McPherson, supra note 50. The Proclamation did not free slaves in the non-rebelling border states of Kentucky, Missouri, Delaware and Maryland, or in “all or parts of three Confederate states controlled by the Union army on the grounds that these areas were not in rebellion against the United States.” Id. 53 Black Codes, HISTORY, http://www.history.com/topics/black-history/black-codes (last visited Apr. 17, 2018). 54 U.S. CONST. amend. XIII, § 1; McPherson, supra note 50. 55 McPherson, supra note 50. Ironically and tragically, the “except as a punishment for crime whereof the party shall have been duly convicted” language of the Thirteenth Amendment has been turned in such a way to allow the continued oppression of people of color in the succeeding 150 years, especially in the last sixty years since the demise of Jim Crow laws. U.S. CONST. amend. XIII. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 8 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Partly in response to Southern intransigence following the War,56 the Fourteenth Amendment was passed by Congress on June 18, 1866, and ratified by three-quarters of the states on July 9, 1868.57 Section Two expressly supersedes the Article I three-fifths clause described above: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”58 Section One of the Fourteenth Amendment contains the majestic language that forms the core of so many of Americans’ guaranteed liberties. It states: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.59 The first sentence, the Citizenship Clause, guaranteeing that all persons born or naturalized in the United States are citizens, was a direct repudiation of the Dred Scott v. Sandford case, where the Supreme Court held that a slave was not a citizen entitled to sue for his freedom in federal court.60 The second sentence contains three guarantees against State infringement: privileges and immunities, intended originally to apply the protections contained within the Bill of Rights (the first eight amendments), and more, to the States.61 This intent was thwarted, however, by the Court’s narrow interpretation of the Clause in The Slaughter-House Cases.62 The 56 See infra notes 67–68 and accompanying text for discussion of the Southern states’ swift passage of “black codes” which further discriminated against the freedmen. 57 14th Amendment to the Constitution Was Ratified, AMERICA’S LIBRARY, http://americaslibrary.gov/jb/ recon/jb_recon_revised_1.html (last visited May 27, 2018). 58 U.S. CONST. amend. XIV, § 2. 59 Id. § 1. 60 Dred Scott v. Sandford, 60 U.S. 393, 404 (1856) (“[African-Americans] are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”). 61 Id. 62 The Slaughter House Cases, 83 U.S. 36 (1872). By its terms, the Bill of Rights applies only to actions of the federal government. See Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833). Over time, primarily during the mid-twentieth-century, most of the protections contained within the Bill of R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 8 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu second and third protections against State infringement, the Due Process and Equal Protection Clauses, have proven to be substantial (though uneven) sources of protection. The Fifteenth Amendment, passed by Congress on February 26, 1869 and ratified by the states in February, 1870, protected the right of the freed slaves and their descendants to vote: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”63 Despite this guarantee, Southern states for many decades were able to prevent massive numbers of people of color from voting, through devices such as poll taxes, literacy tests, and various other intimidation tactics. It was not until after passage of the Voting Rights Act of 1965 that a majority of African-Americans in the South were even registered to vote.64 In sum, a common element of the three “Reconstruction Amendments” (the Thirteenth, Fourteenth, and Fifteenth) is that they were all motivated by the decision to end slavery and its manifestations. Notably, the final provision in all three are substantively identical in authorizing Congress the power to enforce the specific provisions of each.65 The Nation’s experience of the first eighty years following the framing of the Constitution had shown that the States could not be trusted to protect the liberties of all, especially people of color, so the Amendments empowered Congress to guarantee those liberties when the States would not. B. Post-Slavery—Reconstruction & Resistance; Jim Crow Era For a brief time following the Civil War, hopes for improved racial justice were high. In addition to Congress’ proposal of the Constitutional Amendments described Rights have been applied to the States through the process of “selective incorporation” of the provision into the Fourteenth Amendment Due Process Clause. See generally Michael A. Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 MO. L. REV. 1 (2007). 63 U.S. CONST. amend. XV, § 1. 64 Voting Rights Act of 1965, HISTORY, http://www.history.com/topics/black-history/voting-rights-act (last visited Apr. 17, 2018). Efforts to protect the right to vote suffered a substantial setback in 2013, when the Supreme Court struck down Congress’s latest renewal of the Voting Rights Act, which required jurisdictions that had previously engaged in discriminatory practices to have any change to their voting practices pre-approved by the U.S. Department of Justice. Shelby County v. Holder, 570 U.S. 529 (2013) (overturning a statute which had passed Congress by the overwhelming margins of 390-33 in the House and 98-0 in the Senate); Id. (Ginsburg, J., dissenting). 65 The Fourteenth Amendment section 5 states, for example: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. CONST. amend. XIV, § 5. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 8 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu above, the federal government undertook various other actions to attempt to aid the former slaves’ transition to freedom. General William T. Sherman, for example, following his famous “March to the Sea” from Atlanta to Savannah in the War’s last year,66 issued Special Field Order No. 15 in January 1865 confiscating certain coastal land in Florida, Georgia, and South Carolina and dividing it into parcels of up to forty acres for the benefit of some 18,000 freed slaves and other blacks in the region.67 1. 1865-1877—Reconstruction With Abraham Lincoln’s assassination on April 14, 1865, President Andrew Johnson inherited the executive responsibility for rebuilding the post-War Union. Under Johnson’s Reconstruction policies, which started in May 1865 (with which he was often at great odds with Congress), “the former Confederate states were required to uphold the abolition of slavery . . . swear loyalty to the Union and pay off their war debt. Beyond those limitations, the states and their ruling class––traditionally dominated by white planters––were given a relatively free hand in rebuilding their own governments.”68 Perhaps not surprisingly, the Southern states did not go quietly into the night— rather, nearly all of them quickly began passing laws (“black codes”) designed, ultimately, to ensure the availability of African-Americans as a cheap labor force.69 “While the codes granted certain freedoms . . . including the right to buy and own property, marry, make contracts and testify in court (only in cases involving people of their own race)––their primary purpose was to restrict blacks’ labor and activity.”70 Further: Some states limited the type of property that blacks could own, while virtually all the former Confederate states passed strict vagrancy and labor contract laws, as well as so-called “antienticement” measures designed to punish anyone who offered higher wages to a black laborer already under contract. 66 DAVID J. EICHER, THE LONGEST NIGHT: A MILITARY HISTORY OF THE CIVIL WAR 739 (2001). 67 Special Field Order No. 15, Order by the Commander of the Military Division of the Mississippi (Jan. 16, 1865), in 1 THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES, vol. 47, pt. 2, at 60–62 (1895). 68 Black Codes, supra note 53. 69 Id. 70 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 8 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Blacks who broke labor contracts were subject to arrest, beating and forced labor, and apprenticeship laws forced many minors (either orphans or those whose parents were deemed unable to support them by a judge) into unpaid labor for white planters. Passed by a political system in which blacks effectively had no voice, the black codes were enforced by all-white police and state militia forces––often made up of Confederate veterans of the Civil War––across the South.71 The passage and enforcement of the black codes enraged many in the North, who thought the codes, besides denying blacks their basic human rights, breached core ideals underlying notions of free labor.72 Partly in response to the black codes, the radical Thirty-Ninth Republican Congress passed a series of measures designed to cement and guaranteed the fair and equal treatment of African-Americans.73 For example, Congress created the U.S. Bureau of Refugees, Freedmen and Abandoned Lands (the Freedmen’s Bureau) through the Freedmen’s Bureau Acts of 1865 and 1866.74 In addition to providing medical aid, housing, food, schools, and legal assistance, the Freedmen’s Bureau was authorized to set apart for freedmen “such tracts of [not more than forty acres of] land within the insurrectionary states as shall have been abandoned, or to which the United States shall have acquired title by confiscation or sale, or otherwise.”75 By such representations, the prospect of “forty acres and a mule” thus became the great hope toward greater independence for millions of newly-freed slaves. 71 Id. 72 Id. 73 Freedmen’s Bureau, HISTORY, http://www.history.com/topics/black-history/freedmens-bureau (last visited Apr. 18, 2018) (quoting Freedmen’s Bureau Act, ch. 90, 13 Stat. 507 (1865)). 74 Id. 75 Id. The Bureau could boast of a number of accomplishments during its years of existence from 1865– 1872: [T]he Freedmen’s Bureau fed millions of people, built hospitals and provided medical aid, negotiated labor contracts for ex-slaves and settled labor disputes. It also helped former slaves legalize marriages and locate lost relatives, and assisted black veterans. The bureau also was instrumental in building thousands of schools for blacks, and helped to found such colleges as Howard University in Washington, D.C.; Fisk University in Nashville, Tennessee; and Hampton University in Hampton, Virginia. The bureau frequently worked in conjunction with the American Missionary Association and other private charity organizations. Id. That said, ultimately the Bureau failed in its efforts to meaningfully redistribute land to black ownership, when “most of the confiscated or abandoned Confederate land was eventually restored to the original owners.” Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 8 6 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu In 1866 Congress passed the Civil Rights Act and the Fourteenth Amendment (ratified by the states in 1868), requiring states to provide “equal protection” to all persons.76 Then, Congress passed the Reconstruction Act of 1867, which mandated southern states ratify the Fourteenth Amendment before they could rejoin the Union and passed the Fifteenth Amendment in 1869 (ratified by the states in 1870).77 The laws were enacted over the vetoes of President Johnson, himself a Tennessean who firmly opposed the radical Republicans’ Reconstruction plans for protecting African-Americans.78 Among his other disruptive actions, besides the vetoes of legislation, Johnson restored land to former Confederates whom he had pardoned, and fired Freedmen’s Bureau employees whom he viewed as too assertive in promoting black Americans’ rights.79 After Andrew Johnson’s disappointing tenure in serving out Lincoln’s term, the election of President Ulysses Grant in 1868 was a positive development from the standpoint of black Americans. Grant, as Lincoln’s highest ranking General during the Civil War, had long-before established himself as sympathetic to the plight of the slaves, and that concern continued into his Presidency.80 76 The Civil Rights Bill of 1866, U.S. HOUSE OF REPRESENTATIVES, http://history.house.gov/Historical- Highlights/1851-1900/The-Civil-Rights-Bill-of-1866/ (last visited May 27, 2018). See also On This Day, Congress Approved the 14th Amendment, CONSTITUTION CENTER, https://constitutioncenter.org/blog/it- was-150-years-ago-today-congress-approved-the-14th-amendment (last visited May 27, 2018). 77 See supra notes 54–63 and accompanying text. 78 Great Moments in White Victimization: Johnson Vetoes the Civil Rights Act of 1866, http://www.chronicle.com/blognetwork/edgeofthewest/2008/03/27/great-moments-in-white- victimization-johnson-vetoes-the-civil-rights-act-of-1866/ (last visited May 27, 2018). See also Veto for the First Reconstruction Act, March 2, 1867, http://www.let.rug.nl/usa/presidents/andrew-johnson/veto- for-the-first-reconstruction-act-march-2-1867.php (last visited May 27, 2018). 79 Freedmen’s Bureau, supra note 73. Johnson was impeached by the House of Representatives on eleven counts on February 24, 1868, spurred by his firing of Secretary of War Edwin M. Stanton in violation of the Tenure of Office Act. President Andrew Johnson Impeached, HISTORY, http://www.history.com/this- day-in-history/president-andrew-johnson-impeached (last visited Apr. 18, 2018). See U.S. CONST. art. I, § 2 cl. 5 (“The House of Representatives . . . shall have the sole Power of Impeachment.”). The vote on May 26, 1868 after Johnson’s trial in the Senate was 35-19 in favor of removing him from office, one short of the requisite two-thirds required by the Constitution. President Andrew Johnson Impeached, supra; see also U.S. CONST. art. I, § 3 cl. 6 (“The Senate shall have the sole Power to try all Impeachments. . . . And no Person shall be convicted without the Concurrence of two thirds of the Members present.”). 80 WHITE, supra note 51, at 439, 472, 523–24. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 8 7 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu The efforts of President Grant and others toward greater racial justice were fiercely opposed by Southern (and Northern) racists, most notably evidenced by the particularly virulent and violent actions of the Ku Klux Klan. In his recent biography of Ulysses Grant, Ronald White describes the situation: In the name of white supremacy, the KKK beat, whipped, maimed, kidnapped, and hanged thousands of black citizens. Their main aim became voter suppression of newly franchised African Americans, who they know would vote overwhelmingly Republican in local and state elections. In the 1870 state elections, the Klan’s tactics allowed white Democrats to make substantial gains in several southern states. At first the Klan applied economic pressure, threatening black laborers with the loss of employment if they voted for Republicans. As they moved into other southern states, night-riding Klansmen terrorized African-Americans in their homes and churches.81 In response, and at the urging of President Grant, Congress passed three Enforcement Acts in 1870 and 1871 (the last known as the “Ku Klux Klan Act”) to end the terrorism and authorize the president to use armed forces and to suspend habeas corpus, if necessary, to protect the freedmen.82 In the face of strong resistance from the states, Grant proclaimed, “I will not hesitate to exhaust the powers thus vested in the Executive . . . for the purpose of securing to all citizens of the US the peaceful enjoyment of the rights guaranteed to them by the Constitution and laws.”83 Grant firmly believed the federal government should provide a leading role in protecting the rights of the black freedmen and Native Americans, since most states had shown themselves to be unwilling or unable to do so.84 Grant worried, though, that increasing numbers of Republicans in Congress were beginning to capitulate to the “retreatist attitudes” of many in the North, and waffle on the issue of protecting African-Americans in the South.85 Within the South 81 Id. at 519–20 (stating the Ku Klux Klan was first formed in 1866 in Pulaski, Tennessee by six young Confederate veterans as a social club, but very soon it adopted its racist agenda as its primary raison d’etre). 82 Landmark Legislation: The Enforcement Acts of 1870 and 1871, U.S. SENATE, https://www.senate.gov/ artandhistory/history/common/generic/EnforcementActs.htm (last visited May 27, 2018). 83 WHITE, supra note 51, at 523–24. 84 Id. 85 Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 8 8 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu itself, racism was rampant. As Grant’s Attorney General Amos Akerman, himself a Georgia Republican, put it, “[There is] a perversion of moral sentiment among the Southern whites which bodes ill to that part of the country for this generation.”86 In late 1871, after “outrages” were committed against hundreds of black voters (including two murders) in South Carolina, and the Klan refused to disperse after a presidential order, Grant went against his cabinet’s advice in sending troops into the state, suspending the writ of habeas corpus, and empowering Akerman and his federal agents to arrest more than one hundred racist agitators.87 “In 1871 alone, federal grand juries brought three thousand indictments.”88 Despite “charges that he was acting like a tyrant,” and the fact that his “aggressive campaign against the KKK alienated many of his former Republican allies,” Grant won reelection by overwhelming margins in 1872, largely due to his support among the black vote in both the South and North.89 Frederick Douglass, for his part, enthusiastically endorsed Grant, declaring: “To me, it does not seem likely that the Republican party will find a candidate of equal strength as General Grant . . . I know Grant well . . . . At all times he gave every aid to the development of the industry and of the improvement of the colored race.”90 The year 1872 also saw, however, the demise of the Freedmen’s Bureau, created seven years earlier with such high hopes, which demonstrated the continuing erosion of support among Republicans for racial justice.91 The Bureau had been beleaguered for some time, to the point where “even among the agency’s supporters in Congress and its own personnel, there was disagreement over what type of assistance the government should provide and for how long.”92 So, in response to the 86 Id. at 526–28. 87 Id. at 527, 536. 88 Id. 89 Id. at 534–36. 90 Id. (“[Grant got] 56 percent of the vote—a larger margin than his election in 1868 and the highest winning percentage of any president between Jackson in 1828 and Theodore Roosevelt in 1904.”). Douglass spoke of Grant as “the honored and trusted President of the United States.” Id. at 573. White explains that “‘trusted’ was a special word seldom used in the Douglass lexicon—a singular encomium because Douglass did not trust white leaders.” Id. The fiery reformer would later say of Grant, “He was the first of our generals to see that slavery must perish that the Union might live, and to protect colored soldiers from insult by military order.” Id. 91 Freedmen’s Bureau, supra note 73. 92 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 8 9 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu politics of race and Reconstruction, Congress, in part under pressure from white Southerners, shut down the Bureau.93 Clearly, serendipity was not smiling upon supporters of racial equality after 1872. Progress was stunted by the huge gains made by Democrats in the 1874 mid- term elections (made possible by concerted voter suppression efforts as well as a crippling economic depression in 1873 and 1874), and Grant’s advocacy was further weakened by political scandals within his administration.94 The coup de grace was the “Compromise of 1877,” involving the disputed presidential election of 1876— again with reports of widespread voter intimidation by Democrats—when Republicans agreed, in exchange for the Southern Democrats’ support for Republican nominee Rutherford Hayes, to remove federal military oversight and to support home rule in the South.95 Without such oversight, the Southern States— which had always fiercely resented and resisted the Freedman’s Bureau and other aspects of Reconstruction—were free to enact their racially discriminatory practices and policies, and “the endeavor to reconstruct the nation on a platform of civil rights for the freedmen had essentially ended.”96 2. 1877–1954—Post-Reconstruction; “Jim Crow” The 1877 withdrawal of federal troops from the South allowed terrorism against blacks—lynching, rape, and arson—to resume virtually unchecked; and any hopes for providing greater opportunities for many blacks living under a sharecropping system, which was little better than slavery, were dashed. Even then, a small silver lining remained as late as 1885, however, in that some measure of African- Americans’ political gains still remained. While touring South Carolina for several weeks that year, black journalist T. McCants Stewart wrote: “I can ride in first-class cars on the railroads and in the streets . . . I can stop in and drink a glass of soda and 93 Id. (“Over its course of existence, the bureau was underfunded and understaffed, with just 900 agents at its peak. Bureau agents, who acted essentially as social workers and were frequently the only federal representatives in Southern communities, were subjected to ridicule and violence from whites (including terror organizations such as the Ku Klux Klan) who viewed the agents as interfering in local affairs by trying to assist blacks.”). 94 WHITE, supra note 51, at 542, 550, 569, 571–72. 95 Id. at 572–73, 578, 580–81. 96 Id. (“[A joint electoral commission appointed by the House and Senate] awarded Hayes all twenty electoral votes—by a vote of 8 to 7. Hayes, while still losing the popular vote. 4.2 million to 4.0 million, won the electoral vote 185 to 184.”). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 9 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu be more politely waited upon than in some parts of New England.”97 Stewart reported that he “saw a black policeman arrest a white criminal, and he saw whites casually talk with black strangers . . . . The morning light is breaking,” he told his readers.98 That optimism proved to be fleeting. Very quickly, “blacks would lose almost all they had gained . . . . Worse, denial of their rights and freedoms would be made legal by a series of racist statutes, the so-called Jim Crow laws.”99 Jim Crow created a system of apartheid that separated whites from non-whites in virtually every aspect of society: jobs, schools, restaurants, restrooms, public transportation, and recreational facilities.100 White supremacist dogma prevailed. “In the depression-wracked 1890s, racism appealed to whites who feared losing their jobs to blacks. Politicians abused blacks to win the votes of poor white ‘crackers.’ Newspapers fed the bias of white readers by playing up (sometimes even making up) black crimes.”101 The crowning blow occurred when a black man sued to challenge an 1890 Louisiana law mandating separate train cars for blacks and whites, and the U.S. Supreme Court upheld the law in Plessy v. Ferguson in 1896, reasoning that the Fourteenth Amendment equal protection clause allows for “separate but equal” accommodations for people of different races, thus paving the way for another sixty years of blatant, officially- sanctioned oppression.102 97 A Brief History of Jim Crow, CONSTITUTIONAL RIGHTS FOUNDATION, http://www.crf-usa.org/black- history-month/a-brief-history-of-jim-crow (last visited May 24, 2018) (quoting T. McCants Stewart). 98 Id. 99 Id. Jim Crow laws were finally fully eliminated only with the passage of the Civil Rights Act of 1964, nearly a century later. 100 Id. 101 Id. 102 Plessy v. Ferguson, 163 U.S. 537, 559 (1896). Justice Harlan, in dissent, penned these noble words: [I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 9 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Soon, laws were passed across the South separating blacks from whites; and blacks’ voting rights were also targeted through a variety of measures—such as limiting the “voting right to those who owned property or could read well, to those whose grandfathers had been able to vote, to those with ‘good characters,’ [or] to those who paid poll taxes.”103 The Supreme Court upheld these measures, too, and they worked as intended: “In 1896, Louisiana had 130,334 registered black voters. Eight years later, only 1,342, 1 percent, could pass the state’s new rules.”104 The oppression of African-Americans during this period was all-encompassing: Jim Crow laws touched every part of life. In South Carolina, black and white textile workers could not work in the same room, enter through the same door, or gaze out of the same window. Many industries wouldn’t hire blacks: Many unions passed rules to exclude them. . . . By 1914, Texas had six entire towns in which blacks could not live. Mobile passed a Jim Crow curfew: Blacks could not leave their homes after 10 p.m. Signs marked “Whites Only” or “Colored” hung over doors, ticket windows, and drinking fountains. Georgia had black and white parks. Oklahoma had black and white phone booths. Prisons, hospitals, and orphanages were segregated as were schools and colleges. In North Carolina, black and white students had to use separate sets of textbooks. In Florida, the books couldn’t even be stored together. Atlanta courts kept two Bibles: one for black witnesses and one for whites.105 Racist groups were ascendant around the turn of the century. Groups like the Ku Klux Klan, revived in 1915, used terror and expressly promoted violence as a way to keep African-Americans “in check.” These decades were marked by horrendous crimes. Nearly 3,000 lynchings occurred throughout the South during this period (some estimates range much higher).106 Racist representations of blacks permeated popular culture, such as in D.W. Griffith’s film Birth of a Nation, (which was even Id. (Harlan, J., dissenting). On the issue of the constitutionality of “separate but equal,” it was Harlan’s position that ultimately carried the day six decades later in Brown v. Board of Education, 347 U.S. 483 (1954). 103 A Brief History of Jim Crow, supra note 97. 104 Id. 105 Id. 106 DAVID LEVERING LEWIS, W.E.B. DU BOIS: BIOGRAPHY OF A RACE, 1868–1919, at 514 (1993). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 9 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu screened—to President Woodrow Wilson’s enduring disgrace—at the White House in 1915).107 Southern whites, “literally were put to the torture” by “emissaries of hate” who inflamed “the negroes’ egotism” and even inspired “lustful assaults” by blacks upon white womanhood.108 Ta’Nehisi Coates described the reality of African-American life in the early twentieth century: [P]olitical violence was visited upon blacks wantonly . . . . Black schools and churches were burned to the ground. Black voters and the political candidates who attempted to rally them were intimidated, and some were murdered. At the end of World War I, black veterans returning to their homes were assaulted for daring to wear the American uniform. The demobilization of soldiers after the war, which put white and black veterans into competition for scarce jobs, produced the Red Summer of 1919: a succession of racist pogroms against dozens of cities ranging from Longview, Texas, to Chicago to Washington, D.C. Organized white violence against blacks continued into the 1920s––in 1921 a white mob leveled Tulsa’s “Black Wall Street,” and in 1923 another one razed the black town of Rosewood, Florida––and virtually no one was punished.109 Lawyer and Equal Justice Initiative founder Bryan Stevenson, a frequent modern-day public commentator, added: [W]hen I teach my students about African-American history, I tell them about slavery, I tell them about terrorism, the era that began at the end of Reconstruction that when on until World War II. [Most people] don’t really know very much about it, but for African-Americans in this country, that was an era defined by terror. In many communities, people had to worry about being lynched, they had to worry about being bombed. It was the threat of terror that shaped their lives. And these older people come up to me now, and they say “Mr. Stevenson, you give talks, you make speeches. You tell people to stop saying we’re dealing with 107 Id. at 507, 509–12. 108 ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877, at 609–10 (Harper Perennial 2014) (1988). 109 COATES, supra note 17. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 9 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu terrorism for the first time in our nation’s history since 9/11.” They tell me to say, “We grew up with that.”110 a. The Dunning School of History The attitude that developed among Southern whites in the decades after the Civil War was one of profound victimization. “By the turn of the century . . . Reconstruction was widely viewed as little more than a regrettable detour on the road to reunion,” historian Eric Foner explains. “To the bulk of the white South, it had become axiomatic that Reconstruction had been a time of ‘savage tyranny’ that ‘accomplished not one useful result, and left behind it, not one pleasant recollection.’”111 A major factor in the perpetuation of these racist attitudes—for nearly another one hundred years after the Civil War, both in the South and North—was the virtual takeover of the American History branch of the academic establishment by Southern sympathists in the early twentieth-century. Specifically, a group of young scholars from the South studying Reconstruction at Columbia University were taught by the eminent Professor William Archibald Dunning that blacks were “children” utterly incapable of appreciating the freedom that had been thrust upon them.112 Foner comments, “[t]his rewriting of Reconstruction’s history was accorded scholarly legitimacy—to its everlasting shame—by the nation’s fraternity of professional historians [and] shaped historical writing for generations . . . . Few interpretations of history have had such far-reaching consequences as this image of Reconstruction,” Foner continues, “[which] did much to freeze the mind of the white South in unalterable opposition to outside pressures for social change and to any thought of eliminating segregation, or restoring suffrage to disenfranchised blacks. They also justified Northern indifference to the nullification of the Fourteenth and Fifteenth Amendments.”113 Among the first to call the Dunning School’s accounts into question was W.E.B. Du Bois in various papers and his monumental 1935 book, Black Reconstruction. Du Bois argued in 1909 that, contrary to the conventional wisdom 110 Bryan Stevenson, We Need to Talk About an Injustice, TED.COM (Mar. 2012), at 9:00, https:// www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice#t-748427. 111 FONER, supra note 108, at 608–09; see also Lawrence, supra note 62, at 54. 112 FONER, supra note 108, at 608–09. 113 Id. at 609–10. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 9 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu told by the Dunning historians, “[t]he Negro governments in the South accomplished much of positive good . . . . We may recognize three things which Negro rule gave to the South: . . . . (1) Democratic government; (2) Free public schools; and (3) New social legislation.”114 He added that Reconstruction’s failure to improve the plight of blacks could be explained by the federal government’s failure to support the Freedman’s Bureau “for ten, twenty or forty years with careful distribution of land and capital and a system of education for the children.”115 Du Bois’s work was essentially ignored by mainstream historians, however, even though many of his perspectives would be validated generations later by acclaimed professional historians.116 By the mid-twentieth century, the Dunning School had come under increasing criticism, leading to its ultimate demise by the end of the 1960s.117 “Despite its remarkable longevity, the demise of the traditional [Dunning School] interpretation was inevitable,” Professor Foner suggests.118 “Once objective scholarship and modern experience rendered its racist assumptions untenable, familiar evidence read very differently, new questions suddenly came into prominence, and the entire edifice of the Dunning School had to fall.”119 b. Federal Government Collusion Racial prejudice was not limited to private citizens or, for that matter, to state and local governments; in fact, discriminatory practices “extended even into the upper reaches of American government,” explains Coates.120 “The New Deal is today remembered as a model for what progressive government should do––cast a broad social safety net that protects the poor and afflicted while building the middle 114 LEWIS, supra note 106, at 383–85. Du Bois’s book, The Negro, released in 1915, offered broad revisions to the Southern-sympathetic histories foisted on the public by the Dunning School of historians, and sought to counteract the Birth of a Nation’s racist portrayal of a victimized South, “with the Negro represented either as an ignorant fool, a vicious rapist, a venal or unscrupulous politician or a faithful but doddering idiot.” Id. at 507, 509–12 (numerical list includes typographical modifications). 115 Id. at 383–85. 116 See, e.g., FONER, supra note 108, at 608–10. 117 Id. at xxi–xxii. 118 Id. 119 Id. 120 COATES, supra note 17. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 9 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu class . . . . [But] progressives rarely note that Roosevelt’s New Deal . . . rested on the foundation of Jim Crow.”121 Columbia University Professor of History Ira Katznelson suggests that “[t]he Jim Crow South was the one collaborator America’s democracy could not do without.”122 Evidence of that sorry relationship during the New Deal abounds: The omnibus programs passed under the Social Security Act in 1935 were crafted in such a way as to protect the southern way of life. Old-age insurance (Social Security proper) and unemployment insurance excluded farmworkers and domestics––jobs heavily occupied by blacks. When President Roosevelt signed Social Security into law in 1935, 65 percent of African-Americans nationally and between 70 and 80 percent in the South were ineligible. The NAACP protested, calling the new American safety net “a sieve with holes just big enough for the majority of Negroes to fall through.” [Moreover, t]he oft-celebrated G.I. Bill similarly failed black Americans, by mirroring the broader country’s insistence on a racist housing policy . . . . The historian Kathleen J. Frydl observes in her 2009 book, The GI Bill, that so many blacks were disqualified from receiving Title III benefits “that it is more accurate simply to say that blacks could not use this particular title.”123 Moving then into the 1940’s, 50’s, and 60’s, the federal government systematically excluded African-Americans from federal home mortgage loan programs, thus denying them the single greatest long-term wealth generation opportunity among twentieth-century Americans.124 “It was the Home Owners’ Loan Corporation, not a private trade association,” Coates explains, “that pioneered the practice of redlining, selectively granting loans and insisting that any property it insured be covered by a restrictive covenant—a clause in the deed forbidding the sale of the property to anyone other than whites.”125 As a result of redlining, “[m]illions of dollars flowed from tax coffers into segregated white neighborhoods.126 One man said his black 121 Id. 122 Id. 123 Id. 124 Id. 125 Id. 126 Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 9 6 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu neighbor was ‘probably a nice guy, but every time I look at him I see $2,000 drop off the value of my house.’”127 With these practices, “[f]or perhaps the first time, the federal government embraced the discriminatory attitudes of the marketplace,” suggests historian Kenneth T. Jackson.128 “Previously, prejudices were personalized and individualized; FHA exhorted segregation and enshrined it as public policy. Whole areas of cities were declared ineligible for loan guarantees.”129 The Fair Housing Act officially banned redlining in 1968, but “[b]y then the damage was done––and reports of redlining by banks have continued.”130 The federal government’s active role in the widespread, systemic discrimination against African-Americans throughout much of the twentieth century is an outrage. After all, “[t]he federal government is premised on equal fealty from all its citizens, who in return are to receive equal treatment. But as late as the mid- 20th century, this bargain was not granted to black people, who repeatedly paid a higher price for citizenship and received less in return.”131 c. Southern Memorialization Another aspect of the historical revisionism of the period was the effort by various groups such as the United Daughters of the Confederacy (UDC) to literally memorialize the Old South by erecting hundreds of statues and monuments, glorifying Confederate figures and principles throughout the South and beyond.132 The Southern Policy Law Center reports that most of the 718 statues and monuments to the Confederacy identified as of April 2016 were erected during the period from 127 Id. (“[The new long-term, low down payment mortgages were] not to be awarded to blacks. The American real-estate industry believed segregation to be a moral principle. As late as 1950, the National Association of Real Estate Boards’ code of ethics warned that ‘a Realtor should never be instrumental in introducing into a neighborhood . . . any race or nationality, or any individuals whose presence will clearly be detrimental to property values.’ A 1943 brochure specified that such potential undesirables might include madams, bootleggers, gangsters—and ‘a colored man of means who was giving his children a college education and thought they were entitled to live among whites.’”). 128 Id. (quoting KENNETH T. JACKSON, CRABGRASS FRONTIER (1985)). 129 Id. 130 Id. 131 Id. 132 Max Kutner, As Confederate Statues Fall, the Group Behind Most of Them Stays Silent, NEWSWEEK (Aug. 17, 2017, 3:06 PM), https://www.yahoo.com/news/confederate-statues-fall-group-behind- 190647381.html?.tsrc=jtc_news_article. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 9 7 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu 1900–1920, with a smaller spike again during the Civil Rights Era from 1955– 1965.133 Today, and in recent years, the presence of these symbols and memorials is finally being challenged.134 The Confederate Battle Flag was banished from the South Carolina State Capitol following the murder of nine African-American parishioners in their Charleston church by white supremacist Dylann Roof on June 17, 2015.135 However, the Battle Flag still “maintains a publicly supported presence in at least six Southern states,” as of April 2016, most prominently as the dominant feature of the Mississippi state flag.136 Many other Confederate statues have been removed or are slated for removal.137 A statue of Robert E. Lee was covered and scheduled for removal in Charlottesville, Virginia—which prompted the white supremacist gathering last August leading to clashes with counter-protestors and the murder of Heather Heyer.138 The heated debates over Confederate statues have shown a nation in denial and at war with its past. “America has been adept at evasion,” suggests columnist Roger Cohen.139 While America has plenty of monuments to the horrors of the European Holocaust, [b]y comparison, the great American crime of slavery, the laceration and lynching of black bodies, was scarcely memorialized . . . . How, after all, could those Confederate statues stand for so long and so prominently in so many American 133 S. POVERTY LAW CTR., “WHOSE HERITAGE: PUBLIC SYMBOLS OF THE CONFEDERACY” 9, 12–13 (Special Report, Apr. 2016), https://www.splcenter.org/data-projects/whose-heritage. 134 See id. 135 Jason Horowitz, Nick Corasaniti & Ashley Southall, Nine Killed in Shooting at Black Church in Charleston, N.Y. TIMES (July 17, 2015), https://www.nytimes.com/2015/06/18/us/church-attacked-in- charleston-south-carolina.html. 136 S. POVERTY LAW CTR., supra note 133, at 9. 137 Kutner, supra note 132. 138 Jim Murphy, If You’re Not Outraged, You’re Not Paying Attention—Heather Heyer’s Last Facebook Post, HUMAN RIGHTS WATCH (Aug. 18, 2017, 10:29 AM), https://www.hrw.org/news/2017/08/18/if- youre-not-outraged-youre-not-paying-attention-heather-heyers-last-facebook-post. 139 Cohen, supra note 49. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 9 8 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu cities when they memorialized men who took up arms for slavery and in opposition to the Union?140 It was on the occasion of the removal of the last of four Confederate statues in New Orleans in May 2017 that Mayor Mitch Landrieu commented: [There are] truths about our city that we must confront. New Orleans was America’s largest slave market: a port where hundreds of thousands of souls were bought, sold and shipped up the Mississippi River to lives of forced labor of misery of rape, of torture . . . . These monuments purposefully celebrate a fictional, sanitized Confederacy; ignoring the death, ignoring the enslavement, and the terror that it actually stood for . . . . Surely we are far enough removed from this dark time to acknowledge that the cause of the Confederacy was wrong.141 Mayor Landrieu thus touches upon the elements required for successful processes of truth and reconciliation—first, the truth: honest, unblinking acknowledgement of, and acceptance of responsibility for, mistakes of the past.142 He moves then to reconciliation: [U]nlike when these Confederate monuments were first erected as symbols of white supremacy, we now have a chance to create not only new symbols, but to do it together, as one people . . . . Let us remember what the once exiled, imprisoned and now universally loved Nelson Mandela and what he said after the fall of apartheid. “If the pain has often been unbearable and the revelations shocking to all of us, it is because they indeed bring us the beginnings of a common understanding of what happened and a steady restoration of the nation’s humanity.”143 140 Id. 141 Mitch Landrieu, Opinion, Mitch Landrieu’s Speech on the Removal of Confederate Monuments in New Orleans, N.Y. TIMES (May 23, 2017), https://www.nytimes.com/2017/05/23/opinion/mitch-landrieus- speech-transcript.html (“After the Civil War, these statues were a part of that terrorism as much as a burning cross on someone’s lawn; they were erected purposefully to send a strong message to all who walked in their shadows about who was still in charge in this city.”). 142 Id. 143 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 9 9 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu C. Modern Era—1954–2018 By the middle of the twentieth century, some four score years had passed since the Nation’s ratification of the Reconstruction Amendments, which had been designed with the express purpose of placing African-Americans on equal footing with whites. And yet, as discussed above, these decades were marked instead by the systematic oppression of people of color. The middle decades of the century saw the emergence of advocates like Thurgood Marshall, Malcolm X, and Martin Luther King, Jr., whose efforts helped spawn the Civil Rights Era (following in the footsteps of the likes of Frederick Douglass and W.E.B. Du Bois). The U.S. Supreme Court’s school desegregation decision in Brown v. Board of Education in 1954, which struck down Plessy v. Ferguson’s holding of “separate but equal” was key, although it took another ten years and the involvement of Congress for true progress to be seen in integrating schools and society.144 Specifically, two provisions in the Civil Rights Act of 1964 had big impacts: (1) allowing the Attorney General to intervene in lawsuits on behalf of black students, and (2) prohibiting schools receiving federal funds from discriminating.145 Then, the Voting Rights Act of 1965 made it illegal for States to engage in many of the tactics—some that Southern States had employed virtually since the Civil War—used to systematically disenfranchise African-Americans, thereby allowing greater representation in local, state and national legislatures.146 And so, approaching today, the third decade of the twenty-first century, we can agree that much progress has been made. And yet, despite the progress, rampant systemic racial injustice continues. 1. Modern-Day Issues: Criminal Justice; Policing If there is one thing in America still as certain as the sunrise, it is the regularity of incidents of racial discrimination in the Criminal Justice system. The news sometimes comes in bunches—police killings of unarmed black men, for example,147 144 Brown v. Board of Educ., 347 U.S. 483 (1954); Plessy v. Ferguson, 163 U.S. 537 (1896). 145 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 807 (5th ed. 2017). 146 Voting Rights Act of 1965, supra note 64. 147 Victims include (to name a few): Michael Brown, Eric Garner, Walter Scott, Tamir Rice, Freddie Gray, Philando Castile, Samuel DuBose, Stephon Clark, and Diante Yarber. See, e.g., Bosman & Fitzsimmons, supra note 3 (Mr. Brown); Ray Sanchez, Choke Hold by NY Cop Killed NY Man, Medical Examiner Says, CNN.COM (Aug. 2, 2014), https://www.cnn.com/2014/08/01/justice/new-york-choke-hold-death/ index.html (Mr. Garner); Jamelle Bouie, Broken Tail Light Policing: When Cops Stop Black Drivers for Minor Traffic Violations, It’s Often a Pretext for Something More Sinister, SLATE.COM (Apr. 8, 2015), U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 0 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu and then the acquittal of the responsible police officer—but make no mistake: systemic racial injustice is playing out day in and day out like a repeating thread in the American social and legal fabric. In her 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander explains: The majority of black men in major urban areas are under correctional control or saddled with criminal records for life. Jim Crow laws were wiped off the books decades ago, but today an extraordinary percentage of the African American community is warehoused in prisons or trapped in a parallel social universe, denied basic civil and human rights—including the right to vote; the right to serve on juries; and the right to be free of legal discrimination in employment, housing, access to education and public benefits . . . . We have not ended racial caste in America; we have merely redesigned it.148 Bryan Stevenson adds: This country is very different today than it was forty years ago. In 1972 there were 300,000 people in jails and prisons. Today there are 2.3 million. The United States now has the highest rate of incarceration in the world. We have 7 million people on probation and parole, and mass incarceration has fundamentally changed our world. In poor communities and communities of color, there is this despair, this hopelessness, that is being shaped by these outcomes: that one out of three black http://www.slate.com/articles/news_and_politics/politics/2015/04/north_charleston_shooting_how_inve stigatory_traffic_stops_unfairly_affect.html (Mr. Scott); Timothy Williams & Mitch Smith, Cleveland Officer Will Not Face Charges in Tamir Rice Shooting Death, N.Y. TIMES (Dec. 28, 2015), https:// www.nytimes.com/2015/12/29/us/tamir-rice-police-shootiing-cleveland.html (Mr. Rice); Freddie Gray’s Death in Police Custody—What We Know, BBC.COM (May 23, 2016), http://www.bbc.com/news/world- us-canada-32400497 (Mr. Gray); Mitch Smith, Minnesota Officer Acquitted in Killing of Philando Castile, N.Y. TIMES (June 16, 2017), https://www.nytimes.com/2017/06/16/us/police-shooting-trial- philando-castile.html (Mr. Castile); Jess Bidgood & Richard Pérez-Peña, Mistrial in Cincinnati Shooting as Officer Is Latest Not to Be Convicted, N.Y. TIMES (June 23, 2017), https://www.nytimes.com/2017/ 06/23/us/raymond-tensing-samuel-dubose-cincinnati.html (Mr. DuBose); Laurel Wamsley, Video Shows Sacramento Police Shooting Unarmed Black Man In Grandparents’ Backyard, NPR.COM (Mar. 22, 2018), https://www.npr.org/sections/thetwo-way/2018/03/22/59605107/video-shows-sacramento-police- shoot-unarmed-black-man-in-grandparents-backyard (Mr. Clark); Matt Stevens, Police Kill Black Man in Barrage of Bullets Outside California Wal-Mart, N.Y. TIMES (Apr. 19, 2018), https://www.nytimes.com/ 2018/04/19/us/diante-yarber-barstow-shooting.html (Mr. Yarber). 148 MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2012). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 0 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu men between ages of 18 and 30 is in jail, in prison, or on probation or parole. In urban communities across the country—Los Angeles, Philadelphia, Baltimore, Washington—50 to 60 percent of all young men of color are in jail or prison or on probation or parole . . . . [Moreover, m]y state of Alabama, like a number of states, permanently disenfranchises you if you have a criminal conviction. Right now in Alabama, 34% of the black male population permanently lost the right to vote. We’re actually projecting in another ten years that the level of disenfranchisement will be as high as it’s been since prior to the passage of the Voting Rights Act. And there is this stunning silence.149 Systems of policing are, and have long been, heavily skewed against the rights of people of color.150 A sampling of reputable studies, as well as data from the FBI and elsewhere, shows “evidence of a significant bias in the killing of unarmed black Americans relative to unarmed white Americans, in that the probability of being black, unarmed, and shot by police is about 3.49 times the probability of being white, unarmed, and shot by police on average.”151 And, according to a Washington Post summary of a Stanford study of police practices in Oakland, California: Regardless of the area of the city, disproportionate treatment by race was similar and the raw totals were stunning . . . 2,890 African-Americans [were] handcuffed but not arrested in a 13-month period, while only 193 whites were cuffed. When Oakland officers pulled over a vehicle but didn’t arrest anyone, 72 white people were handcuffed, while 1,466 African-Americans were restrained . . . . [Moreover, u]sing only the words an officer uses during a traffic stop, we can 149 Stevenson, supra note 110. 150 Cody T. Ross, A Multi-Level Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the United States, 2011–2014, PLOS (Nov. 5, 2015), http://journals.plos.org/plosone/article?id =10.1371/journal.pone.0141854. 151 Id.; see also Kia Makarechi, What the Data Really Says About Police and Racial Bias, VANITY FAIR (July 14, 2016), https://www.vanityfair.com/news/2016/07/data-police-racial-bias; Police Shootings and Brutality in the US: 9 Things You Should Know, VOX.COM (May 6, 2017), https://www.vox.com/cards/ police-brutality-shootings-us/us-police-shootings-statistics (stating: “There are huge racial disparities in how US police use force—Black people are much more likely to be shot by police than their white peers. . . . [A]nalysis of the available FBI data . . . found that US police kill black people at disproportionate rates: Black people accounted for 31 percent of police killing victims in 2012, even though they made up just 13 percent of the US population.”). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 0 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu predict [with 66 percent accuracy] whether that [officer] is talking to a black person or a white person.152 Clearly, America needs to think hard about alternative approaches to policing. 2. Modern-Day Issues: Economic Injustice Some of the more insidious effects of decades and centuries of racial discrimination are economic. The sobering fact is that, despite some progress in racial justice in the last half-century, African-Americans still lag shockingly behind whites in economic terms, due to the endemic, systemic discrimination they have always faced, and continue to face to this day.153 As Paul Campos reports in a July 29, 2017 article in The New York Times: ● The income gap between black and white Americans remains every bit as extreme as it was five decades ago, at every income level. (Black households in 1967 earned an average of between 55–67 percent as much as white households. Those ratios remain the same today.) ● The median white household has about 13 times the wealth of the median black household—and much of that wealth is transferred between generations. This remarkable gap helps perpetuate the consequences of centuries of social and economic injustice. ● Many black children attend schools that once again are as segregated as they were in the 1960s, and they are far more likely to become trapped in a prison-industrial complex. ● Recent research shows black job applicants for low-wage jobs receive callback interviews or job offers at half the rate of equally well-qualified white applicants and that black and Latino applicants with clean records “fare no better” than white applicants just released from prison.154 “These numbers should shock us,” Campos suggests.155 “Consider that in the mid-1960s, Jim Crow practices were still being dismantled and affirmative action 152 Id. 153 See Coates, supra note 14. 154 Paul Campos, Opinion, White Economic Privilege is Alive and Well, N.Y. TIMES (July 29, 2017), https://www.nytimes.com/2017/07/29/opinion/sunday/black-income-white-privilege.html. 155 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 0 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu hardly existed. Yet a half-century of initiatives intended to combat the effects of centuries of virulent racism appear to have done nothing to ameliorate inequality between white and black America.”156 How can it be that these efforts have had so little effect? The deep roots of centuries of racism “offer more than adequate explanations for what should be considered a scandalous state of affairs in regard to race-based economic inequality.”157 Campos concludes, adding that “[a] genuine populist movement would unite working- and middle-class Americans of all backgrounds, rather than dividing them by exploiting false beliefs about the supposed loss of white economic privilege.”158 These economic inequalities exist throughout the nation, regardless of geography. From around 1916–1970, huge numbers of African-Americans (more than six million) moved in the “Great Migration” from the South to the North, Midwest and West for jobs in factories and relief from the indignities of Southern racism.159 While migrants were able to escape the overt discrimination of the South, they encountered more subtle, but no less damaging, discriminatory practices in the North. One such practice that has greatly hindered generations of African-Americans’ financial well-being is the so-called redlining of neighborhoods, where the federal Home Owners Loan Corporation long required that any property it insured be covered by a restrictive covenant; and real estate agents—even long after the practice was banned in 1968—guided prospective buyers, based on their race, only to certain neighborhoods.160 This process triggered a self-fulfilling prophecy of lessened economic prospects for black people. First, they are guided to less affluent, more economically depressed areas, which forces them to resort to more risky loans provided by lenders engaging in an array of predatory lending practices.161 156 Id. 157 Id. 158 Id. (commenting that conservatives like Charles Murray blame the “pathological” black working-class culture—but note that some of this “pathology” now manifests itself in the white working class as well (who themselves are also suffering economically, at the expense of the rich, much more than they were 50 years ago)). 159 Great Migration, HISTORY, http://www.history.com/topics/black-history/great-migration (last visited May 4, 2018). 160 See supra notes 115–19 and accompanying text. 161 Coates, supra note 14. See infra notes 185–99 and accompanying text for discussion of reparations. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 0 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu People of color were disproportionately affected, for example, by the 2008 recession and foreclosure crisis, when millions of Americans lost their homes under the terms of subprime mortgages and other risky loan practices.162 Ta’Nehisi Coates explains: In 2005, Wells Fargo promoted a series of Wealth Building Strategies seminars. Dubbing itself “the nation’s leading originator of home loans to ethnic minority customers,” the bank enrolled black public figures in an ostensible effort to educate blacks on building “generational wealth.” But the “wealth building” seminars were a front for wealth theft. In 2010, the Justice Department filed a discrimination suit against Wells Fargo alleging that the bank had shunted blacks into predatory loans regardless of their creditworthiness . . . . According to The New York Times, affidavits found loan officers referring to their black customers as “mud people” and to their subprime products as “ghetto loans.” “We just went right after them,” Beth Jacobson, a former Wells Fargo loan officer, told The Times. “Wells Fargo mortgage had an emerging-markets unit that specifically targeted black churches because it figured church leaders had a lot of influence and could convince congregants to take out subprime loans. . . .” In 2009, half the properties in Baltimore whose owners had been granted loans by Wells Fargo between 2005 and 2008 were vacant; 71 percent of these properties were in predominantly black neighborhoods.163 III. RECONCILIATION: A TIME FOR HEALING Everything now . . . is in our hands . . . . If we—and now I mean the relatively conscious whites and the relatively conscious blacks, who must, like lovers, insist on, or create, the consciousness of the others—do not falter in our duty now, we may be able, handful that we are, to end the racial nightmare, and achieve our country, and change the history of the world.164 —James Baldwin, 1963 162 Coates, supra note 14. 163 Id. 164 JAMES BALDWIN, THE FIRE NEXT TIME 105 (1993). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 0 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Whether one subscribes to the mythic view of America as “shining city on the hill,”165 the grittier class-warfare view,166 or the more pragmatic economic self- interest perspective,167 the centuries-long subjugation of people of color is, in any case, morally and ethically indefensible. From the mythic standpoint, one might argue that Americans are better than that—and that they should strive to live up to their reputation as fair-minded, freedom-loving, equality-conscious people. It is their birthright, after all, that there exist “certain unalienable truths . . . that all men [people] are created equal, [and are] entitled to life, liberty and the pursuit of happiness.”168 When they fail to actively 165 “American’s story is remarkable: a Nation, sprouting from the seeds of Enlightenment principles where ‘tolerance was a moral virtue, even a duty; no longer merely the prerogative of calculating monarchs, but a fundamental elements of the “rights of man.”’” MICHAEL A. LAWRENCE, RADICALS IN THEIR OWN TIME: FOUR HUNDRED YEARS OF STRUGGLE FOR LIBERTY AND EQUAL JUSTICE IN AMERICA 2 (2011) (citing AMY CHUA, DAY OF EMPIRE xxxii (2007)). 166 “Under Howard Zinn’s quasi-Marxist view, where virtually any political conflict may be reduced to a conflict between the classes of society, even the Revolution itself was driven primarily by class interests. . . . It is pretended,” Zinn observes, “[that] it is ‘we the people’ who wrote that document, rather than fifty-five privileged white males whose class interest required a strong central government. That use of government for class purposes, to serve the needs of the wealthy and powerful, has continued throughout American history.” LAWRENCE, supra note 165, at 309–10 n.5 (quoting ZINN, supra note 12, at 59, 684). 167 “‘The movement for the Constitution,’ Charles Beard explains, ‘was originated and carried through principally by four groups of personal interests which had been adversely affected under the Articles of Confederation: money, public securities, manufactures, trade and shipping.’” Id. at 310 n.5 (quoting CHARLES BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 324– 25 (1913)). Moreover, Beard notes that the interests of certain unrepresented groups—slaves, indentured servants, men without property, women—were not included in the Constitution. As Zinn elaborates, “Charles Beard warned us that governments . . . are not neutral, that they represent the dominant economic interests, and that their constitutions are intended to serve these interests.” ZINN, supra note 12, at 98. The Constitution “serves the interests of a wealthy elite, but also does enough for small property owners, for middle-income mechanics and farmers, to build a broad base of support. The slightly prosperous people who make up this base of support,” Zinn continues, “are buffers against the blacks, the Indians, the very poor whites.” Id. at 99. 168 THE DECLARATION OF INDEPENDENCE ¶ 2 (U.S. 1776). That the primary drafter of the Declaration, Thomas Jefferson, was himself a slaveholder was an irony not lost on the U.S. Supreme Court in the infamous Dred Scott v. Sandford (1856) decision holding that slaves in free territories were not “persons” entitled to bring a case in federal court. See supra note 60 and accompanying text. Nonetheless, despite Jefferson’s hypocrisy, the Declaration stands (and has always stood) as noble aspirational language. Public intellectual Cornel West comments, “we need to view the founders with perspective. . . . Jefferson and Washington had much to teach about bravery; they were magnificent, in the face of the British Empire. But if we do not say a mumbling word about the fact they were slaveholders, then we have a ‘deodorized discourse.’” Cornel West, MSU Slavery to Freedom lecture, MICH. ST. U. (Feb. 18, 2016), https://alumni.msu.edu/learn/online/livestream-and-video-content/video-content-details.cfm?id=49. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 0 6 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu ensure that all human brothers and sisters enjoy the same liberties and opportunities, they betray that birthright. “This nation,” Du Bois insists, “will never stand justified before God until these things are changed.”169 Or, as King put it in Mississippi in 1966 a bit more pointedly: “[Our nation] has a choice. Either you give the Negro his God-given rights and his freedom or you face the fact of continual social disruption and chaos. America, which will you choose?”170 A. A Dream for Reconciliation—The Power of Empathy This Article adopts the hopeful view that most people are basically good. Human nature allows for empathy and charity—qualities born of love that become especially apparent, for example, in times of natural disasters when many go out of their way to assist others in need, regardless of race, religion, or class.171 It follows, arguably, that most Americans operate in good faith, and consider fairness as a core guiding principle.172 This underlying desire for fairness is exemplified by the extraordinarily broad criticism of President Trump for his failure to unequivocally condemn the actions of white nationalists in Charlottesville, Virginia in August 2017.173 In response to the President’s equivocations, the United States Congress voted unanimously to condemn displays and expressions of white supremacy.174 The collective reaction to Charlottesville and the President’s response— massive demonstrations, the exodus of business executives from Donald Trump’s 169 LEWIS, supra note 106, at 218. 170 DYSON, supra note 8, at 39 (quoting Martin Luther King, Jr.). 171 There are stories of legions of Americans of all descriptions reaching out to lend helping hands to others, for example, in the aftermath of natural disasters such as the devastating hurricanes in Texas (Harvey) and Florida (Irma) in 2017. 172 See, e.g., ROBERT FULGHUM, ALL I REALLY NEED TO KNOW I LEARNED IN KINDERGARTEN: UNCOMMON THOUGHTS ON COMMON THINGS 2 (2003) (stating, “These are the things I learned [in Kindergarten]: 1. Share everything; 2. Play fair . . . . 7. Say you’re sorry when you hurt somebody. . . .”). 173 The President’s moral equation was epitomized by his blaming “many sides” for the clash. Rosie Gray, Trump Defends White-Nationalist Protesters: “Some Very Fine People on Both Sides,” THE ATLANTIC (Aug. 15, 2017), https://www.theatlantic.com/politics/archive/2017/08/trump-defends-white-nationalist- protesters-some-very-fine-people-on-both-sides/537012/. 174 Congress Overwhelmingly Approves Resolution Condemning White Nationalists, NBC NEWS (Sept. 12, 2017), https://www.nbcnews.com/politics/congress/senate-unanimously-approves-resolution- condemning-white-nationalists-n800816. When Congress, with its corrosive hyper-partisanship of recent times––even on such previously unquestioned bipartisan interests on, for example, protecting the nation’s institutions from outside (Russian) infiltration––is able to agree unanimously on anything, it is noteworthy indeed. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 0 7 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu commissions, the broad denunciations by establishment Republicans, and the actions of a unanimously-united Congress—suggests, paradoxically, that a rare opportunity for progress may be at hand. The overwhelming agreement signals there is indeed something that reasonable folks—right and left—can agree upon: the utter unacceptability of white supremacy in civil society. Might Americans of good faith from across the political spectrum be ready to engage in a thoughtful process of self-examination on the topic of racial justice? Might a bipartisan majority see the merits in addressing how manifestations of white supremacy have worked to create a massively unjust system toward people of color, and then to take steps to account for those injustices? Might our common humanity prevail over hate? It would not be easy because Americans are more polarized today than they have been in a good long while, but this is all the more reason to try. Many Americans hunger for a greater sense of community than currently exists, and it is hard to imagine more powerful potential for unity than bipartisan efforts resulting in true progress toward addressing the systemic racial injustices that have plagued this continent for nearly four hundred years. We could all feel good about that. B. Awareness & Acknowledgement A widespread awareness and acknowledgement of the full truth of America’s history of racial oppression (as touched upon in Section II above) is necessary before there can be any hope for systemic improvement and ultimate reconciliation. 1. Awareness People wonder what they, individually and collectively, can do to try to correct injustice, understanding, as they do, deep down that “injustice anywhere is a threat to justice everywhere.”175 It is easy to be discouraged by the sheer scope of the problem, considering that systemic racism has existed on this continent, after all, for nearly half a millennium. So, we struggle with what we can do. Our isolated ability and limited wherewithal lead us to question our capability to help. In the face of such daunting doubts, it is useful to remember that a single person can make a difference.176 Public intellectual Michael Eric Dyson discusses the idea of “personal reparations”: 175 KING, supra note 6 and accompanying text. 176 Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 0 8 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu There are all sorts of ways to make reparations work at the local and individual level. You can hire black folk at your office and pay them slightly better than you would ordinarily pay them. You can pay the black person who cuts your grass double what you might ordinarily pay. Or you can give a deserving black student in your neighborhood, or one you run across in the course of your work, scholarship help.177 For those unable to do more, reconciliation can be as little as having a friendly smile for the “other.” As Nainoa Thompson, captain of the Polynesian traditional sailing vessel Hokule’a, says, “[e]very act of kindness of any person . . . is an act to better the entire earth.”178 Anyone interested in promoting an ethos of fairness might consciously imagine standing in the shoes of certain individuals or groups, minority or otherwise, who are most adversely affected by existing social systems; and then to consider, based on one’s own self-interest while standing in those shoes, how those systems might be changed to improve their circumstances. This technique, which John Rawls described as operating from behind a “veil of ignorance,” leverages a basic human instinct—survival—to guide people in making fair and just decisions.179 In other words, because people naturally tend to operate in their own self-interest, folks of good faith can help historically-oppressed groups by deeply imagining themselves as members of those groups, and taking (self-interested) action accordingly.180 In the racial justice context, Michael Eric Dyson puts it in terms of empathy: It sounds simple, but [empathy’s] benefits are profound. Whiteness must shed its posture of competence, its will to omniscience, its belief in its goodness and purity, and then walk a mile or two in the boots of blackness. The siege will not end until white folk imagine themselves as black folk—vulnerable despite our 177 DYSON, supra note 8, at 197. See infra notes 184–98 and accompanying text for additional discussion of reparations. 178 Nainoa Thompson, Right Direction, PATAGONIA MAG., May 2017, at 25. 179 JOHN RAWLS, A THEORY OF JUSTICE (1973). See also Michael Anthony Lawrence, Justice-as-Fairness as Judicial Guiding Principle: Remembering John Rawls and the Warren Court, 81 BROOK. L. REV. 673 (2016). 180 Or, given how nature equips human beings to go to extraordinary measures to protect their own children (e.g., parents speak of willingly stepping in front of a bus if it means saving the life of their child), one might think about how it would affect one’s own child, if s/he were the one being affected by the discriminatory social systems. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 0 9 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu virtues. If enough of you, one by one, exercises your civic imagination, and puts yourself in the shoes of your black brothers and sisters, you might develop a democratic impatience for injustice, for the cruel disregard of black life, for the careless indifference to our plight. Empathy must be cultivated. The practice of empathy means taking a moment to imagine how you might behave if you were in our positions. Do not tell us how we should act if we were you; imagine how you would act if you were us. Imagine living in a society where your white skin marks you for disgust, hate, and fear. Imagine that for many moments. Only when you see black folk as we are, and imagine yourselves as we have to live our lives, only then will the suffering stop, the hurt cease, the pain go away.181 Awareness also requires an understanding of the role played by privilege in matters of race.182 Imani Michelle Scott explains: [I]n today’s America, white skin is still highly privileged skin; just ask the number of Asians, Cubans, and others of non-European ancestry who classify themselves with the coveted white label. To those who are born “white,” little thought is likely given to this socially constructed birthright until they feel somehow threatened that it may be losing its power as a consequence of some major social change, e.g., voting rights legislation, affirmative action, or the election of a black president. But no one should doubt that most, if not all, whites in America instinctively know the value of their white skin.183 181 DYSON, supra note 8, at 211–12. 182 “‘Privilege’ refers to unearned advantages that certain groups in our society have based solely upon the fact that they belong to that group. If you are a part of a ‘privileged’ group, it means that you have access, opportunity, and power that is denied to other groups. Privilege often comes from those things we are born with—our race, our gender, our class background, whether we have a disability etc.” What is Privilege? A Reflective Activity, adapted from Shayla R. Griffin, Ph.D. (Nov. 2013). See infra Appendix A. 183 IMANI MICHELLE SCOTT, CRIMES AGAINST HUMANITY IN THE LAND OF THE FREE: CAN A TRUTH AND RECONCILIATION PROCESS HEAL RACIAL CONFLICT IN AMERICA? 6 (2014). If Newt Gingrich can recognize his own white privilege, most white Americans can certainly do so as well. (On July 8, 2016, Gingrich said: “It took me a long time, and a number of people talking to me through the years, to get a sense of this: If you are a normal white American, the truth is you don’t understand being black in America and you instinctively under-estimate the level of discrimination and the level of additional risk.”) Eugene Scott, Newt Gingrich: ‘Normal White Americans . . . Don’t Understand Being Black in America,’ CNN.com (July 8, 2016), https://www.cnn.com/2016/07/08/politics/newt-gingrich-white-americans/ index.html. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 1 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Scott speculates that most whites are likely unaware of their privilege: They are, through no fault of their own, simply ignorant of the fact. They do not think twice about stepping outside to take a walk around the block in a strange neighborhood; whereas a black person knows someone might view them as “suspicious” and call the cops. White parents do not think twice about sending their teen children out of the house without instructions on how to interact with the police, should they encounter them; whereas black parents know they must instruct their teens that they must be “twice as good.”184 Black folks do not need to be reminded about the history of racial oppression in this country and continent. They live it every day. Their ancestors lived it every day. White folks, on the other hand, do need some remedial work. Randomly, they happened to have been born in a place where, for four centuries, whites have occupied the dominant social and political position. As a result, they simply do not have the experience of what it is like to be the “other.” The first step in their remediation is awareness.185 Every white person would be well-served to take his or her own private “privilege inventory” for an eye-opening exercise in the markedly different subjective realities faced by different persons depending on the color of their skin.186 It is telling to ask, “what do white people do then once they become aware of their racial privilege?” Do they say, “good for me,” and act in ways that perpetuate the privilege-divide, while completely ignoring the challenges of the less-privileged? Or do they recognize the sheer chance or dumb luck involved in being born into whatever conditions or surroundings they enjoy, and seek to aid in advancing opportunity for the less-privileged? 184 SCOTT, supra note 183, at 6. 185 It should perhaps go without saying, but it is the responsibility of white people—not black people—to “bring along” other white people into greater awareness. 186 A typical privilege inventory exercise instructs participants “to consider the privilege and oppression you have experienced in your own life” and asks a list of questions, assigning one point if it applies, or zero if not. See, e.g., Appendix A. See also Harvard University’s “Project Implicit” for additional awareness-heightening exercises, including various Implicit Association Tests for measuring bias based on race, religion, gender, socio-economic class, and more. Project Implicit, HARVARD U., https://implicit.harvard.edu/implicit/takeatest.html (last visited May 4, 2018). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 1 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu 2. Acknowledgement After awareness comes acknowledgement. True healing can begin only when past atrocities and injustices are acknowledged. “We cannot be afraid of our truth,” New Orleans Mayor Mitch Landrieu says, adding, “[t]he Confederacy was on the wrong side of history and humanity.” Fundamentally, “a great nation does not hide its history. It faces its flaws and corrects them.”187 Acknowledgement of America’s history of racial injustice needs to happen not only in Congress, but also at the state, local, and personal levels. Consider, for example, Georgetown University’s September 2016 acknowledgement of its sale of 272 slaves nearly two centuries ago in order to stabilize the institution’s finances. At a special ceremony, the university president announced plans “[to issue] a formal apology on behalf of the university, establish an institute to study slavery, and erect a public memorial to the slaves who labored to sustain Georgetown, including those men, women, and children . . . whose sale in 1838 saved the school.”188 In the last ten years, there have been the beginnings of acknowledgement at a national level. In 2008, the U.S. House of Representatives issued a formal apology in the form of H.R. Res. 194, which: (1) acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal; (2) acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow; (3) apologizes to African-Americans on behalf of the people of the United States, for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow; and (4) expresses its commitment to rectify the lingering consequences of the misdeeds committed against African-Americans under slavery and Jim Crow and to stop the occurrence of human rights violations in the future.189 And in 2009, the U.S. Senate unanimously passed Concurrent Resolution 26, resolving (with the House of Representatives concurring): That the sense of the Congress is the following: 187 Landrieu, supra note 141 (quoting George W. Bush). 188 DYSON, supra note 8, at 216. 189 H.R. Res. 194, 110th Cong. (2008). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 1 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu (1) Apology for the Enslavement and Segregation of African-Americans. The Congress: A. acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws; B. apologizes to African-Americans on behalf of the people of the United States, for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow laws; and C. expresses its recommitment to the principle that all people are created equal and endowed with inalienable rights to life, liberty, and the pursuit of happiness, and calls on all people of the United States to work toward eliminating racial prejudices, injustices, and discrimination from our society.190 These efforts are a very good first start; now they need to be expanded upon and embraced more broadly. A logical next step would be for Congress to take up H.R. 40 (“Commission to Study and Develop Reparation Proposals for African-Americans Act”), first introduced by Rep. John Conyers in 1989 and reintroduced in every subsequent Congress.191 The Bill proposes: To address the fundamental injustice, cruelty, brutality, and inhumanity of slavery in the United States and the 13 American colonies between 1619 and 1865 and to establish a commission to study and consider a national apology and proposal for reparations for the institution of slavery, its subsequent de jure and de facto racial and economic discrimination against African-Americans, and the impact of these forces on living African-Americans, to make recommendations to the Congress on appropriate remedies, and for other purposes.192 Why has H.R. 40 never been advanced out of committee? Nkechi Taifa (co-founder N’COBRA) suggests: “[i]t’s because it’s black folks making the claim . . . . People who talk about reparations are considered left lunatics. But all we are talking about is studying [reparations].” Taifa continues, “[a]s John Conyers has said, we study 190 S. Con. Res. 26, 111th Cong. (2009). Notably, the Resolution next issues a disclaimer: “(2) Nothing in this resolution—(A) authorizes or supports any claim against the United States; or (B) serves as a settlement of any claim against the United States.” 191 H.R. 3745, 101st Cong. (1989). 192 H.R. 40, 115th Cong. (2017). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 1 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu everything. We study the water, the air. We can’t even study the issue? This bill does not authorize one red cent to anyone.”193 Coates suggests it is past time for Congress to take up H.R. 40. After all, “[a] crime that implicates the entire American people deserves its hearing in the legislative body that represents them.”194 C. Remedies After awareness and acknowledgement, the next step in a process of Truth and Reconciliation is to consider what sort of remediation should occur. Areas demanding attention in the context of racial justice in America include criminal justice reform and reparations. 1. Criminal Justice Reform Professor Paul Butler, commenting on the mind-numbing regularity of instances of criminal injustice and police brutality toward blacks, says, “[t]he system is now working the way it is supposed to, and that makes black lives matter less. That system must be crushed, and the United States of America must, in President Obama’s words, be ‘remade.’”195 What steps might be taken to begin re-making the system? Regarding police brutality, we must demand greater police accountability, which is sadly lacking under current state laws. Only when the bad police are held truly accountable for their brutal tactics will it be possible for racial justice to improve. Police are supposed “to serve and protect,” but too often in past decades (and centuries) in this country, that trust has been fundamentally breached. Two changes would help improve police accountability: (1) require an independent prosecutor and venue in all police shootings; and (2) replace the current legal standard for use of deadly force from merely “reasonable” to the more demanding “necessity” standard. 193 Coates, supra note 14 (quoting Nkechi Taifa). N’COBRA stands for: “National Coalition of Blacks for Reparations in America.” See infra note 192. 194 Id. 195 Paul Butler, The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform, 104 GEO. L.J. 1419, 1475 (2016) (suggesting a “Third Reconstruction” frame alignment for seizing this moment in history). If the First Reconstruction was the roughly-ten-year period following the Civil War, and the Civil Rights Era of the 1950s and 1960s was the Second Reconstruction, the new current-day Third Reconstruction would include “a strategic bifurcation of labor among activists where traditional civil rights organizations would focus on liberal reform, while the Movement for Black Lives would focus on more Critical-Race-Theory-type transformations.” Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 1 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Regarding the first, whenever a police shooting occurs, the case should be immediately transferred to a state (or federal) investigator, away from the local prosecutor and courts, where under our current criminal justice system police, prosecutors and courts exist in a cozy day-to-day symbiotic relationship of handling and moving cases, which is bound to be biased in favor of the police. As Kate Levine, Acting Assistant Professor of Lawyering at the NYU School of Law, says, “the conflict of interest between local prosecutors and police-defendants is so anathema to our system of justice that it requires removal in every case where an officer is accused of committing a crime.”196 The independent investigation of officer-involved deaths was a primary recommendation of President Obama’s Task Force on 21st Century Policing.197 This is not impossible; indeed, one state, Wisconsin, has established such a system by requiring independent investigations in instances where police shoot and kill somebody.198 This reform has been widely embraced, as evidenced by the fact that “outside agencies were also called in to evaluate virtually every nonfatal police shooting in Wisconsin last year, despite no legal requirement to do so . . . . [The process] can be an effective way to protect the interests of the public and the officers who risk their lives to protect it.”199 Second, the current “reasonableness” legal standard used in almost every state fails to consider if alternatives to deadly force were available.200 The difference between this and the “necessity” standard, which is required for federal officers, is simple but crucial.201 Even when the police have a reasonable belief that a person is 196 See, e.g., Kate Levine, Who Shouldn’t Prosecute the Police, 101 IOWA L. REV. 1447, 1447 (2016) (stating, “a structural conflict of interest arises when local prosecutors are given the discretion and responsibility to investigate and lead cases against the police”). 197 Department of Justice Announces New Guidebook on 21st Century Policing, DEP’T OF JUSTICE (Oct. 27, 2015), https://cops.usdoj.gov/Default.asp?Item=2828. 198 Jim Palmer, Wisconsin a Model with Outside Investigations of Police Shootings, S.F. CHRON. (May 26, 2016), https://www.sfchronicle.com/opinion/article/Wisconsin-a-model-with-outside-investigations-of- 7948437.php. 199 Id. 200 Olevia Boykin, Christopher Desir & Jed Rubenfeld, A Better Standard for the Use of Deadly Force, N.Y. TIMES (Jan. 1, 2016), https://www.nytimes.com/2016/01/01/opinion/a-better-standard-for-the-use- of-deadly-force.html. 201 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 1 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu dangerous, the necessity standard does not permit deadly force if less deadly alternatives are available.202 Individual police departments are instrumental in establishing the use of force practices in any particular community. Progress has been made in some jurisdictions. The nation’s largest police force, the New York Police Department, a couple years ago established a new set of use-of-force policies, for example, no doubt prompted in part by the shocking chokehold death of Eric Garner on Staten Island by one of its officers on July 17, 2014—for the crime of selling loose cigarettes.203 Bryan Stevenson explains that the Criminal Justice system “isn’t just being shaped in ways that seem to be distorting around race; they’re also distorted by poverty”: We have a system of justice in this country that treats you much better if you’re rich and guilty, than if you’re poor and innocent. Wealth, not culpability, shapes outcomes. And yet we seem to be very comfortable. The politics of fear and anger has made us believe that those are problems that are not our problems. We’ve been disconnected.204 2. Reparations Any discussion about remediation for centuries of racial injustice should also include “reparations”—the compensation for damages caused by past harmful actions and policies. The notion of providing some sort of compensation for past wrongs is not new. Indeed, as originally conceived, race-conscious affirmative action programs— providing express preferences to people of color for admission to educational institutions, for instance—are examples of governmental efforts to begin to balance past inequalities.205 “The whole point of racial balance,” Professor Girardeau Spann 202 Id. 203 Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. TIMES (June 13, 2015), https://www.nytimes.com/2015/06/14/nyregion/eric-garner-police- chokehold-staten-island.html. 204 Stevenson, supra note 110, at 6:29–6:54. 205 See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 1 6 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu suggests, “is to stop giving whites the resources that they have in the past secured through societal discrimination, rather than through more legitimate means.”206 Unfortunately, the U.S. Supreme Court’s current equal protection doctrine, with its requirement for minimizing race-consciousness, misses the entire point of trying to provide affirmative assistance to compensate for past transgressions. Professor Spann explains: The whole point should be to highlight our race consciousness so that we can no longer complacently pretend that we live in a race-neutral culture. Grutter v. Bollinger207 and Gratz v. Bollinger208 allow the continued use of race-conscious affirmative action, but only with the understanding that it will not be used in ways that makes any systemic modifications in the current allocations of resources. The opinions take great pains to ensure that the continuing effects of societal discrimination will remain beyond the reach of race-conscious remedies. And that, in turn, perpetuates the invidious discrimination against racial minorities that has always characterized American culture.209 The Court’s approach has insidious effects: By reading the Constitution to preserve the racial status quo in the allocation of significant societal resources, the Nation’s white majority is able to continue discounting the interests of racial minorities in ways too passive to be immediately recognized as oppressive . . . . [T]he Supreme Court’s refusal to allow even majoritarian political remedies for societal discrimination fits comfortably within a long tradition of Supreme Court impediments to the advancement of racial equality.210 In his June 2014 Atlantic article, The Case for Reparations, Ta’Nehisi Coates makes the direct case for economic reparations: 206 Girardeau A. Spann, The Dark Side of Grutter, 21 CONST. COMMENT. 221, 241 (2004). 207 Grutter, 539 U.S. 306. 208 Id. 209 Spann, supra note 206, at 249. 210 Id. at 231–32. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 1 7 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu And so we must imagine a new country. Reparations––by which I mean the full acceptance of our collective biography and its consequences––is the price we must pay to see ourselves squarely . . . . Reparations beckons us to see America as it is—the work of fallible humans. . . . What I’m talking about is more than recompense for past injustices––more than a handout, a payoff, hush money, or a reluctant bribe. What I’m talking about is a national reckoning that would lead to spiritual renewal . . . . Reparations would mean a revolution of the American consciousness, a reconciling of our self-image as the great democratizer with the facts of our history.211 The notion of reparations finds strong support in the political philosophy of John Locke, whose work formed the basis for much of the political theory underlying the Declaration of Independence and United States Constitution.212 Locke wrote: Besides the crime which consists in violating the law . . . there is commonly injury done to some person or other, and some other man receives damage by his transgression: in which case he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation from him that has done it and any other person, who finds it just, may also join with him that is injured, and assist him in recovering from the offender so much as may make satisfaction for the harm he has suffered.213 It is not surprising, then, that we are able to find examples of reparations during the founding era. In the late 1700s, at a time when “black people in America had endured more than 150 years of enslavement, the idea that they might be owed something in return was, if not the national consensus, at least not outrageous.”214 As Quaker John Woolman wrote in 1769, “A heavy account lies against us as a civil society for oppressions committed against people who did not injure us, and that if the particular case of many individuals were fairly stated, it would appear that there was considerable due to them.”215 211 Coates, supra note 14. 212 DYSON, supra note 8, at 214. 213 Id. (quoting John Locke). 214 Coates, supra note 14. 215 Id. (“As the historian Roy E. Finkenbine has documented, at the dawn of this country, black reparations were actively considered and often effected. Quakers in New York, New England, and Baltimore went so far as to make ‘membership contingent upon compensating one’s former slaves.’”). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 1 8 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu And there is no question that for centuries, harm (of the sort envisioned by John Locke) has been suffered: [This is] a country whose existence was predicated on the torture of black fathers, on the rape of black mothers, on the sale of black children . . . . Having been enslaved for 250 years, black people were not left to their own devices. They were terrorized. In the Deep South, a second slavery ruled. In the North, legislatures, mayors, civic associations, banks, and citizens all colluded to pin black people into ghettos, where they were overcrowded, overcharged, and undereducated. Businesses discriminated against them, awarding them the worst jobs and the worst wages. Police brutalized them in the streets. And the notion that black lives, black bodies, and black wealth were rightful targets remained deeply rooted in the broader society.216 Besides the overt physical abuses, slaves literally built the early American economy through their unpaid labor; Coates explains: Nearly one-fourth of all white Southerners owned slaves, and upon their backs the economic basis of America––and much of the Atlantic world––was erected. In the seven cotton states, one-third of all white income was derived from slavery. By 1840, cotton produced by slave labor constituted 59 percent of the country’s exports. The web of this slave society extended north to the looms of New England, and across the Atlantic to Great Britain, where it powered a great economic transformation and altered the trajectory of world history. “Whoever says Industrial Revolution,” wrote the historian Eric J. Hobsbawm, “says cotton.” . . . In 1860 there were more millionaires per capita in the Mississippi Valley than anywhere else in the country.217 As for how reparations might be evaluated and calculated, Coates explains: 216 Id. 217 Id. (adding, “The wealth accorded America by slavery was not just in what the slaves pulled from the land but in the slaves themselves. ‘In 1860, slaves as an asset were worth more than all of America’s manufacturing, all of the railroads, all of the productive capacity of the United States put together,’ the Yale historian David W. Blight has noted. ‘Slaves were the single largest, by far, financial asset of property in the entire American economy.’”). R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 1 9 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Scholars have long discussed methods by which America might make reparations to those on whose labor and exclusion the country was built. In the 1970s, the Yale Law professor Boris Bittker argued in The Case for Black Reparations that a rough price tag for reparations could be determined by multiplying the number of African Americans in the population by the difference in white and black per capita income. That number—$34 billion in 1973, when Bittker wrote his book— could be added to a reparations program each year for a decade or two. Today Charles Ogletree, the Harvard Law School professor, argues for something broader: a program of job training and public works that takes racial justice as its mission but includes the poor of all races.218 More recently, in their 2003 Columbia Law Review article, Reparations for Slavery and Other Historic Injustices, Eric Posner and Adrian Vermeule offer “a framework to evaluate the morality of reparations and the legal problems that arise in implementing reparations proposals.”219 They detail the “best known reparations programs . . .[,] those for Japanese Americans who were interned by the United States government during World War II, and for victims of the Nazi Holocaust,” . . . and purport to “fill[] the gap in the literature by analyzing the various design options for reparations programs, their legal and constitutional bases, and their relationship to the standard moral and political arguments about reparations.”220 In his 2006 Essay, Reconsidering Reparations, Alfred Brophy challenges Posner-Vermeule’s “limited definition of reparations and their limited catalog of reparations in American history.”221 Utilizing his “‘legislative model’ of reparations, Brophy proposes a relaxation of the relationship between wrongdoer and payer, and injured and recipient. Then [he] suggests several factors for a legislature to consider in designing reparations for historical injustice.”222 The Essay’s goal is thus to propose “an alternative framework for evaluating the morality and utility of reparations.”223 218 Id. (explaining, “In the 20th century, the cause of reparations . . . coalesced in 1987 under an umbrella organization called the National Coalition of Blacks for Reparations in America (N’COBRA). The NAACP endorsed reparations in 1993.”). 219 Alfred L. Brophy, Reconsidering Reparations, 81 IND. L.J. 811, 811 (2006). 220 Eric Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 COLUM. L. REV. 689, 689–91 (2003). 221 Brophy, supra note 219, at 811. 222 Id. 223 Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 2 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu Speaking to white readers in the second person in his 2017 book, Tears We Cannot Stop, Michael Eric Dyson offers some intriguing thoughts on more personal forms of reparations: It may be best to think of reparation as a secular tithe, a proportion of money and other resources set aside for causes that are worthy of support . . . . There are thousands upon thousands of black kids whose parents cannot afford to send them to summer camp or to pay fees for a sports team, or to buy instruments to play if they attend one of the ever-shrinking number of schools that has a band. Their parents cannot pay for tutors for math or science or English or whatever subject their kids need help with. . . . You can choose five black children to sponsor on an annual trip to the local zoo. You can begin a film club for black children to attend movie theaters in more affluent areas where they might also enjoy a trip to the museum. Or you can pay for the textbooks of ten black college students each year. The point is to be creative in transferring a bit of your resources, even in modest amounts, to deserving and often struggling descendants of the folk who gave this country its great wealth.224 In sum, “surely you can see the justice of making reparation, even if you can’t make it happen politically,” Dyson suggests.225 “Please don’t say that your ancestors didn’t own slaves. Your white privilege has not been hampered by that fact. Black sweat built the country you now reside in, and you continue to enjoy the fruits of that labor.”226 In the end, Coates suggests, it is not so much the monetary amount, but rather the very process of engaging in the inquiry, which would be the most profound outcome of a concerted effort toward providing reparations for slavery: No one can know what would come out of such a debate. Perhaps no number can fully capture the multi-century plunder of black people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed. But I believe that wrestling publicly with these questions matters as much as—if not more than—the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane. An 224 DYSON, supra note 8, at 197–99. 225 Id. 226 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 2 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu America that looks away is ignoring not just the sins of the past but the sins of the present and the certain sins of the future. More important than any single check cut to any African American, the payment of reparations would represent America’s maturation out of the childhood myth of its innocence into a wisdom worthy of its founders.227 D. Formal Truth and Reconciliation Processes Racial justice in America requires the creation of formal truth and reconciliation processes at the national, state and local levels. What forms these processes will take is an open question, and will no doubt vary depending on the history of racial oppression in any particular jurisdiction. A nation or community engages in the necessary work toward healing only when it undertakes a sincere effort to acknowledge its role in past atrocities and to atone for the harm done to its victims. 1. Truth and Reconciliation in America a. National Efforts Congress’s formal acknowledgement in 2008 and 2009 of the truth about the nation’s history of slavery, Jim Crow and racial oppression are important first steps.228 However, more must now be done at the national level to begin tackling the sources of the persistent, systemic racial injustices that still exist in America. In her 2014 book, Crimes Against Humanity in the Land of the Free: Can a Truth and Reconciliation Process Heal Racial Conflict in America?, Imani Michelle Scott proposes the creation of an official U.S.-based truth and reconciliation process (U.S. TRP) “to move the nation towards healing interracial relationships, improving its international standing as a peace builder, and strengthening its commitment to human rights throughout the world.”229 Among other things, Scott suggests, the U.S. TRP could: ● Review previous initiatives and recent advancements in worldwide truth and reconciliation efforts for guidance . . . ; ● Establish an oversight committee to elicit . . . [options] that incorporate local concerns . . . ; 227 Coates, supra note 14. 228 See supra notes 167–71 and accompanying text. 229 SCOTT, supra note 183, at 1. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 2 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu ● Facilitate the education of the American populace about the United States’ . . . [history of] racial oppression . . . ; ● Initiate and continue a campaign of awareness programs to highlight the contributions and achievements of blacks throughout the nation’s history . . . ; and ● Establish specific initiatives that would involve the nation’s citizenry in . . . activities to assure equality, fairness, and justice for all Americans.230 A U.S. TRP is as necessary now, in the second decade of the twenty-first century, as it ever has been: “It is 2014 in the United States of America, but sometimes I wonder if it is really 1914––or maybe even 1814, when blacks in this country were routinely targeted, hunted, and maimed or murdered by whites,” Scott suggests.231 “[U]ntil this nation adequately addresses this disturbing history, acknowledges the social ordeals it continues to inflame, and provides a way for all in our society to work through the [conflicts] . . . , U.S. citizens will forever be caught in a cycle of discord, tension, amoral conduct, and animosity based on race. . . .”232 b. State efforts More must be done at the state and local levels as well, beginning with acknowledgement of the hard truths and realities of racial discrimination and oppression in their own states and communities. The events in Charlottesville, Virginia in August 2017, when white supremacists clashed in violent confrontations with counter-protestors, opened the eyes of many to the necessity of addressing matters of race relations in America. The idea that such efforts are necessary is gaining traction, as reflected, for example, in the publication, following the Charlottesville riot, of “Virginia Needs a Truth and Reconciliation Commission on Race” in The Washington Post by mainstream Virginia Democrat, Tom Pereillo.233 230 Id. at 2. 231 Id. 232 Id. at 2, 5. 233 Tom Pereillo, Virginia Needs a Truth and Reconciliation Commission on Race, WASH. POST (Sept. 6, 2017), https://www.washingtonpost.com/opinions/virginia-needs-a-truth-and-reconciliation-commission -on-race/2017/09/06/8f1a5bde-8e6d-11e7-8df5-c2e5cf46c1e2_story.html?utm_term=.d587e6138263. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 2 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu As state and local governments consider how to structure processes of truth and reconciliation, they may look to other efforts that have preceded them. In 2013, for example: The governor of Maine and the five tribal chiefs signed as equals to authorize the [the Maine Wabanaki Child Welfare Truth and Reconciliation] Commission to investigate whether or not the removal of Wabanaki children from their communities has continued to be disproportionate to non-Native children and to make recommendations . . . that “promote individual, relational, systemic and cultural reconciliation.”234 The Commission sought to implement the intent of the federal Indian Child Welfare Act (ICWA), which was passed in 1978 to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” but had been poorly applied at the state level.235 After two years of research, investigation, and heartfelt testimony, the Commission accomplished much in the way of enabling truth-telling, and offered in its 2015 Report the following suggestions for moving forward: From our perspective, to improve Native child welfare, Maine and the tribes must continue to confront: 1. Underlying racism still at work in state institutions and the public; 2. Ongoing impact of historical trauma, also known as intergenerational trauma, on Wabanaki people that influences the well-being of individuals and communities; 3. Differing interpretations of tribal sovereignty and jurisdiction that make encounters between the tribes and the state contentious.236 c. Local and/or Private Efforts Another effort, the Greensboro Truth and Reconciliation Commission (GTRC), occurred at the local level, and is especially noteworthy because it was a grassroots 234 THE MAINE WABANAKI-STATE CHILD WELFARE TRUTH & RECONCILIATION COMM’N, BEYOND THE MANDATE, CONTINUING THE CONVERSATION 10 (2015). 235 25 U.S.C. § 1902 (2018). 236 THE MAINE WABANAKI-STATE CHILD WELFARE TRUTH & RECONCILIATION COMM’N, supra note 234, at 12. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 2 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu initiative by private citizens unsupported by public officials (indeed, the government resisted the efforts). This demonstrated that governmental involvement is not always necessary in order to initiate truth and reconciliation processes.237 The GTRC formed in 2004 to address the tragic events of November 3, 1979, when a protest by the Communist Workers Party against the Ku Klux Klan escalated into a riot where members of the Klan and American Nazi Party shot and killed five protesters and wounded ten others.238 During the murder trials of six Klan and Nazi members the next year, evidence came to light that “the Greensboro police, and perhaps the federal government, were aware of the probability of violence at the rally but did little to prevent it.”239 Those six were acquitted on self-defense claims by all- white juries, as were the defendants in a 1984 federal criminal trial, and in a 1985 civil trial, “a North Carolina jury found two Greensboro police officers and six others . . . liable for the “wrongful death” of one of the demonstrators . . . and ordered them to pay nearly $400,000 in damages.”240 By the time of the twentieth anniversary of the killings in 1999, “many in the Greensboro community still did not feel that justice had been served,” so a coalition of people in the community “launch[ed] a democratic process that engaged the community in nominating and selecting the seven members of this independent Commission, empaneled on June 12, 2004.”241 After two years of “assess[ing] the evidence gathered from the three trials, internal records from the Greensboro Police Department and federal law enforcement, newspaper and magazine articles, academic literature, and some two hundred interviews and personal statements given in private and at our public hearings,” the GTRC presented its Final Report to the public on May 25, 2006, commenting, “[w]e view this report as the beginning of a citizen effort toward investigation and dialogue, rather than the end.”242 237 GREENSBORO TRUTH AND RECONCILIATION COMMISSION, EXECUTIVE SUMMARY 15 (2006) [hereinafter GTRC]. 238 JOVANOVIC SPOMA, DEMOCRACY, DIALOGUE AND COMMUNITY ACTION: TRUTH AND RECONCILIATION IN GREENSBORO 7 (2012). 239 Communists and Klansmen Clash in Greensboro, HISTORY: THIS DAY IN HISTORY, https://www .history.com/this-day-in-history/communists-and-klansmen-clash-in-greensboro (last visited May 4, 2018). 240 GTRC, supra note 237, at 15 (2006); see also Communists and Klansmen Clash in Greensboro, supra note 239. 241 GTRC, supra note 237. 242 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 2 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu The GRTC, believing “positive steps toward reconciliation, justice and reparations can be undertaken,” offered a number of recommendations in the Final Report, summarized into the major categories of: (1) Acknowledgement;243 (2) Institutional Reform;244 (3) Criminal Justice & Civil Remedies;245 and (4) Citizen Transformation/Engagement.246 The Report concludes with thoughts regarding “The Way Forward”: To other communities considering processes to seek the truth and work for reconciliation around tragic, unjust events in their own histories, we heartily recommend the truth and reconciliation model as such a tool. . . . Our individual and collective commitment to the truth helped us persevere. And the human stories and emotions we encountered along the way moved us to do our best to leave behind a legacy we hope will serve Greensboro for years to come . . . . [W]e hope that this process also serves as a learning tool for others in this country who, like Greensboro, are burdened by a legacy of hurt and inspired by the possibility of honestly coming to terms with their own history.247 The GTRC is a fine example of the sort of highly meaningful effort that can be put forth by concerned citizens dedicated to seeing justice served, even when the government itself is doing little to assist, or is even resisting, those efforts. Those looking for a model on how to proceed with their own local or state efforts would be well-served to review the GRTC’s impressive comprehensive online Final Report.248 243 Id. at 29–30 (stating, for example, “c. The Greensboro Police Department and the City of Greensboro should issue public apologies for their failure to protect the public. . . . These institutions also should issue an apology to city residents for not appropriately acknowledging the event and taking the necessary steps for community healing. . . . h. A public monument should be built on the site of the shootings to honor those killed and wounded on Nov. 3, 1979.”). 244 Id. at 31–36 (offering specific recommendations for City and County government; the justice system, local media outlets, and other institutions such as the Chamber of Commerce). 245 Id. at 36–37 (recommending, “current investigations into the alleged corruption in the Greensboro Police Department, including the surveillance of citizens, should be thoroughly and expeditiously completed”). 246 Id. at 37 (suggesting “individual community members must commit to understanding issues of capital, labor, race, poverty, oppression, privilege and justice, and exploring ways to have a positive impact on the way they play out in the community”). 247 Id. at 38. 248 See What is STAR?, SOUTHERN TRUTH AND RECONCILIATION (STAR), http://www.southerntruth.net (last visited May 24, 2018) for additional resources. STAR, whose founding was inspired by Archbishop U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 2 6 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu 2. Lessons from International Experience In exploring what sorts of processes would be appropriate in the United States, it is useful to look also to the experiences of other nations. Since the much-lauded Truth and Reconciliation Commission in South Africa in the mid-1990s, for example, “there have been over 1,000 other truth-and-reconciliation commissions established across the world, from Chile and Guatemala to Nepal and Sierra Leone.”249 The Undead Past, a special report in the January/February 2018 issue of Foreign Affairs, explores the issue of atonement in the context of atrocities that have occurred over the past century in six different nations: How do nations handle the sins of the fathers and mothers? Take genocide, or slavery, or political mass murder. After such knowledge, what forgiveness—and what way forward? . . . There have been all too many crimes in all too many places, but six cases stand out—two of genocide [Germany and Rwanda], two of political mass murder [Russia and China], and two of enduring racial oppression [South Africa and the United States] . . . . [E]ach country has processed its tragic past [in its own way]. Together, they reveal interesting patterns and lessons. Worst practices are easy to identify: denying what actually happened. Best practices are more scattered, but . . . responsible engagement with the past . . . [and] facing a problem . . . directly and brutally . . . is a smart idea after all.250 a. Listening and Acknowledging A common theme among nations that have engaged in successful truth and reconciliation processes is the importance of the perpetrators’ listening to the victims and acknowledging the transgressions that have occurred; several nations have been effective in this regard.251 Desmond Tutu during his residence at Emory University between 1998 and 2000, “partners with communities to adapt the truth and reconciliation process to local needs.” Id. 249 Sisonke Msimang, All Is Not Forgiven: South Africa and the Scars of Apartheid, FOREIGN AFF., Jan.– Feb. 2018, at 28, 32. 250 Rose, supra note 5. 251 See, e.g., Msimang, supra note 249, at 31–32; Richard J. Evans, From Nazism to Never Again: How Germany Came to Terms With Its Past, FOREIGN AFF., Jan.–Feb. 2018, at 8, 9. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 2 7 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu In South Africa, for example, the Truth and Reconciliation Commission (TRC) headed by Archbishop Desmond Tutu accomplished much in the way of healing and restoring dignity to black South Africans brutalized by the minority white government’s apartheid regime.252 “The TRC’s work was premised on the idea that truth was an essential first step toward healing,” Sisonke Msimang explains further in All is Not Forgiven: South Africa and the Scars of Apartheid: For the first time in South Africa’s history, whites would be forced to listen to blacks. Victims even had the right to question perpetrators, who in turn were encouraged to tell the truth in the interests of national unity and reconciliation. For many black people whose lives had been defined by taking orders from whites, whose daily routines and living patterns had been shaped by the whims of whites, and whose opinions and needs had been dismissed by whites and by the system of apartheid they had built to protect themselves, the TRC offered more than the truth; it offered a chance to regain their dignity.253 In Rwanda, “one of the most striking features of [the nation’s] approach” following an episode of ethnic genocide in the mid-1990s where more than 800,000 of a total population of seven million people were murdered, “has been the state’s concerted effort to heal old wounds,” Phil Clark suggests in Rwanda’s Recovery: When Remembrance Is Official Policy.254 “Indeed, substantial government intervention has been the key to the country’s recovery––a point reinforced by comparison with neighboring Burundi, Congo, and Uganda, where the absence of systematic official responses to mass atrocity has allowed deep societal divisions and violence to persist.”255 Further: Perhaps the most ambitious––and most controversial––of the Rwandan government’s responses to the genocide was the prosecution of 400,000 genocide suspects in 12,000 community courts called gacaca, a process that took place 252 Msimang, supra note 249, at 31–32. 253 Id. (adding, “There was a strongly confessional element to the TRC’s operation; sinners came to the hearings seeking absolution, and victims came seeking to forgive so they might be liberated from their pain. Some people saw the entire process as a religious experience.”). 254 Phil Clark, Rwanda’s Recovery: When Remembrance Is Official Policy, FOREIGN AFF., Jan.–Feb. 2018, at 35, 36 (further commenting: “And yet by intervening so heavily in people’s lives, the powerful Rwandan state has sometimes hindered citizens’ attempts to truly come to terms with the past.”). 255 Id. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 2 8 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu between 2002 and 2012. These courts, which sat every week under trees and in village courtyards across Rwanda, heard more than one million cases and were overseen by lay judges who could hand down sentences as severe as life imprisonment (although most consisted merely of community service). Underpinning the [success of the] gacaca system was the belief that justice is indispensable to reconciliation, that without a public acknowledgment of crimes and the punishment of all levels of perpetrators, anger and resentment would fester and could lead to further mass violence.256 In Germany, “Germans ultimately had to confront what the Hitler regime had done in their name,” explains Richard J. Evans, in From Nazism to Never Again: How Germany Came to Terms With Its Past.257 “The process of doing so was halting and hesitant at first, and complicated by the country’s division during the Cold War.”258 Since around the time of the 1989 fall of the Berlin Wall, however: Germany has accomplished an undeniably impressive feat: a collective acceptance of moral responsibility for the terrible crimes of its recent past. The country has given material expression to this acceptance by preserving physical traces of the Nazi era and building fresh memorials to its victims. These memorials serve more than just a symbolic function: in the face of increasingly influential far-right groups and parties that reject contemporary German norms of tolerance, seek an end to what they consider the “shaming” of Germans, and encourage pernicious forms of historical revisionism, these monuments to the past act as constant, unavoidable, and visceral reminders of the truth. . . . Such physical reminders of the crimes of Hitler and the Nazis confront Germans every day, and while a small minority may not like this, they have no choice but to put up with it. When it comes to accepting the sins of the past, there is, in the end, no alternative for Germany.259 256 Id. at 38 (emphasis added). 257 Evans, supra note 251. 258 Id. 259 Id. at 9–10, 13, 15 (explaining: “In 1992, the artist Gunter Demnig launched the Stolpersteine (‘stumbling blocks’) project, in which small brass plaques the size of cobblestones were laid into the sidewalks of German towns and cities outside the houses where the murdered victims of Nazism had lived until their arrest. . . . To date, more than 56,000 Stolpersteine have been placed in urban locations in some 22 countries, the vast majority in Germany itself. By placing them where people would walk over them, the artist intended to remind passersby of the complicity of ordinary Germans in the violence. . . . Larger, R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 2 9 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu In distinct contrast to South Africa, Rwanda and Germany, the nations of China, Russia and the United States260 have done poorly in providing adequate responses for their respective atrocities. There remains in each nation a significant portion of the victimized population who have simply never had their grievances addressed or acknowledged in a meaningful way. Regarding China, given its current relative political and economic stability, “[s]omeone unfamiliar with the country might be forgiven for assuming that it had reckoned with its recent past and found a way to heal its wounds and move on.261 Far from it,” suggests Orville Schelle, in China’s Cover-up: When Communists Rewrite History. Rather, the Chinese Communist Party (CCP) “is wagering that it can undo, or at least dodge, the long-term damage it has inflicted on the Chinese people by simply erasing history”: [A] visitor wandering the streets of any Chinese city today will find no plaques consecrating the sites of mass arrests, no statues dedicated to the victims of persecution, no monuments erected to honor those who perished after being designated “class enemies.” Despite all the anguish and death the CCP has caused, it has never issued any official admission of guilt, much less allowed any memorialization of its victims.262 It is unlikely that the CCP will engage in any sort of campaign of openness anytime soon, since that would “risk undermining the party’s legitimacy and its right to rule unilaterally.” China has thus become “the People’s Republic of Amnesia,” where “[a] single act of public remembrance might expose the frailty of the state’s carefully constructed edifice of accepted history, scaffolded in place over a generation and kept aloft by a brittle structure of strict censorship, blatant falsehood and willful forgetting.”263 And if too much more time passes, Schelle soberly suggests that even if some loosening were to occur someday, “its impact might be less than dramatic, more elaborate forms of memorialization took shape, as well. The sites of former concentration camps were turned into large-scale memorials to the victims, with elaborate exhibitions. . . .”). 260 See supra Section II for a discussion of the relevant U.S. history. 261 Orville Schelle, China’s Cover-Up: When Communists Rewrite History, FOREIGN AFF., Jan.–Feb. 2018, at 22–23. 262 Id. 263 Id. at 24 (quoting LOUISA LIM, THE PEOPLE’S REPUBLIC OF AMNESIA: TIANANMEN REVISITED (2014)). U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 3 0 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu because so much has been suppressed and repressed.264 In the words of the dissident Liu Xiaobo: ‘Eyes kept too long in the darkness do not easily adapt to dazzling sunlight when it suddenly pours through a window.’”265 And in Russia, following the communist government’s fall in 1991, “it seemed that history would be laid bare. Declassified archival documents demonstrated that the country had been run by a group of criminals led by Stalin and that the mass murders they perpetrated were crimes against humanity. Unfortunately,” laments Nikita Petrov in Don’t Speak, Memory: How Russia Represses Its Past, “the new Russian government, busy with more immediate problems, never got around to passing a legal verdict on the Soviet past and calling its crimes by their names.”266 Paradoxically, since 1991 there has been a rise of nostalgia for Stalin, who was responsible for the deaths of between ten million and 12 million people; and Russian leadership today—as contrasted with the 1987 glasnost (liberalization) campaign, when Soviet leader Mikhail Gorbachev commented that “Stalin had committed ‘enormous and unforgiveable’ crimes”—is vague or unforthcoming on the Soviet past and leaders in particular.267 As a result of these positions, together with “the growing human rights violations in Russia and the fact that the archives containing the records of the security services’ crimes remain closed,” Petrov reports that “the Russian public has been left disillusioned by lackluster economic reforms, widespread official corruption, and politicians who have turned their backs on the people . . . . As long as Russia refuses to officially acknowledge the darkness in its past, it will be haunted by ideas that should have died long ago.”268 As for the United States, Bryan Stevenson explains: [W]e have in this country this dynamic where we really don’t like to talk about our problems. We don’t like to talk about our history. And because of that, we really haven’t understood what it’s meant to do the things we’re doing. We’re constantly running into each other; we’re constantly creating tensions and 264 Id. 265 Id. at 27. 266 Nikita Petrov, Don’t Speak, Memory: How Russia Represses Its Past, FOREIGN AFFAIRS, Jan.–Feb. 2018, at 16, 20–21. 267 Id. 268 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 3 1 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu conflicts. We have a hard time talking about race. And I believe that’s because we’re unwilling to commit ourselves to a process of truth and reconciliation.269 b. Addressing Economic Concerns Another common theme among the nations surveyed is the importance of providing for the victims’ economic concerns, both in terms of compensating for past damages and enhancing prospects for future opportunities. In South Africa, while the TRC was effective in allowing the victims to speak and be heard, as discussed above, it is possible to see with the benefit of hindsight that the TRC did not do enough to hold the oppressors fully accountable for the longer-term systemic effects of apartheid’s “systematic dispossession of blacks, . . . through forced removals from cities, separate and unequal education, the deprivation of basic democratic rights, and, most important, the explicit reservation of certain kinds of jobs for whites and the exclusion of black people from certain categories of study and employment.”270 The effects of the TRC’s shortcomings in this area are evident in the dire circumstances of many black South Africans today. Sisonke Msimang suggests: A genuine truth-and-reconciliation process would have aimed to address not just serious human rights violations but also the socioeconomic effects of apartheid . . . . [A more effective TRC] would have calculated the economic costs of apartheid for black South Africans and set aside resources to redress them. It would also have looked at such issues as land seizures, forced removals, pass laws, and [homelands] with a view toward working out financial compensation packages, which could have been paid in cash or taken the form of state benefits, such as pensions or grants for higher education. To fund these payouts, the new government could have made arrangements with large banks, mining companies, and other institutions that profited handsomely from apartheid . . . . To put it simply, in the years after 1994, the [TRC] ought to have been bolder.271 Similarly, in the United States, still-present systemic inequalities have led to the situation where “[t]he income gap between black and white Americans remains 269 Stevenson, supra note 110, at 9:29–9:57. 270 Msimang, supra note 249, at 32. 271 Id. at 34. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 3 2 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu every bit as extreme as it was five decades ago, at every income level.272 (Black households in 1967 earned an average of between 55-67 percent as much as white households.) Those ratios remain the same today,” Paul Campos explains.273 Today the “median white household has about 13 times the wealth of the median black household—and much of that wealth is transferred between generations.”274 By marked contrast, Rwanda, through its truth and reconciliation process, has focused much more on the victims’ long-term economic well-being, as Phil Clark writes: Beginning shortly after the genocide, . . . the Rwandan government undertook a four-pronged strategy to heal the country. This comprised commemoration, civic education, socioeconomic development, and reconciliation through justice . . . . Recognizing that socioeconomic inequality was a key driver of the genocide, the government also embarked on an ambitious development program, focusing on rural health care and education. . . . When prompted to explain . . . [the success of the process,] Rwandans tend to highlight two factors: the gacaca courts provided a release valve for people’s anger and resentment, and the reduction in socioeconomic disparities between ethnic groups has taken the sting out of historical antagonisms.275 And the leadership in China, for all of its censorship and restrictions on freedoms, has since undertaking market reforms in 1978 enabled more than 800 million people to escape poverty.276 Quality of life, in terms of satisfying basic needs, has improved dramatically.277 One might conclude that the CCP leadership has imposed something of a devil’s bargain on the nation’s population in order to maintain its iron grip on power: in exchange for relative economic prosperity, the government strictly limits other freedoms. 272 Campos, supra note 154. 273 Id. 274 Id. 275 Clark, supra note 254, at 36–37, 40. 276 The World Bank in China, THE WORLD BANK, http://www.worldbank.org/en/country/china/overview (last updated Apr. 19, 2018). 277 Id. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 3 3 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu CONCLUSION This article has argued that the time is now for Americans to engage in serious processes of Truth and Reconciliation: first, to truly acknowledge the Nation’s four- hundred-year history of racial oppression, then, to attempt, through conscious acts of reconciliation and healing, to begin to atone for the massive harms done. If enough Americans of goodwill were to commit to such efforts, “we may be able,” as James Baldwin says, “to end the racial nightmare, and achieve our country, and change the history of the world.”278 278 BALDWIN, supra note 164, at 105. U N I V E R S I T Y O F P I T T S B U R G H L A W R E V I E W P A G E | 1 3 4 | V O L . 8 0 | 2 0 1 8 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu APPENDIX A WHAT IS PRIVILEGE?: A REFLECTIVE ACTIVITY, Adapted from an activity developed by Shayla R. Griffin, Ph.D. November 2013. 1. I rarely think about my race. 2. In my K–12 education, the majority of my teachers were from my racial background. 3. I have never experienced being the only person from my racial background in a classroom, school, or workplace. 4. Students of my race in public schools are those least likely to be written up, suspended, or placed in special education. 5. Students of my race are those most likely to be in advanced, honors, and AP classes. 6. The majority of characters in the books I read, the shows I watched, and the toys I played with as a child were from my racial background. 7. I have never been asked, “What are you?” or mislabeled as a race other than my own. 8. No one has ever asked if they could touch my hair because it was different. 9. My ancestors came to this country voluntarily. 10. I have never been discouraged or prevented from pursuing academic or vocational goals, or tracked into a lower level at school because of my race or ethnicity. 11. I can go shopping alone fairly well-assured that I will not be followed or harassed by store employees who consider me suspicious. 12. People in my family were not barred from moving to the suburbs or given subprime mortgages because of their race. 13. Conversations about national heritage or “civilization” prominently and positively feature people of my race as instrumental in making our society what it is. 14. I have never been told that I am “well spoken” or “articulate” because I speak Standard English. 15. People do not question whether or not I am the one in charge because of how I look. 16. I can go into any bookstore and count on finding the writing of people from my race represented. R A C I A L J U S T I C E D E M A N D S T R U T H & R E C O N C I L I A T I O N P A G E | 1 3 5 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2018.594 http://lawreview.law.pitt.edu 17. I have never been denied a job because of my race or ethnicity. 18. I can go into any supermarket and find the staple foods that fit with my cultural traditions. 19. I can go into most any hairdresser’s shop and find someone who can deal with my hair. 20. I am confident that I have never been denied a job because my name sounds “too ethnic.” 21. Schools populated predominantly by students from my racial background are usually thought of as good or high quality schools. 22. I can be hired or promoted at work without worrying that my co-workers believe I got the position because of affirmative action efforts on the part of the employer. 23. I can swear, dress in second-hand clothes, not answer email, or be late to meetings without having people attribute these choices to my race. 24. My K–12 academic experience was rich with information about the history, culture, scientific inventions, writings, poetry, and other contributions of people from my racial background. 25. To my knowledge, no American president who shares my racial background has ever been questioned about their national origin or told to produce their birth certificate. 26. I generally think of police as people I would call in the case of an emergency. 27. I have seldom, if ever, felt uncomfortable or angry about a remark or joke made about people of my race or ethnicity, and felt it wasn’t safe to confront it. 28. Members of my extended family have not been targets of harassment, bullying, or violence based on their race or ethnicity. 29. The neighborhoods I can move to where I feel “at home” are considered “good” school districts. 30. The school I attended as a child had updated textbooks, technology, and facilities. 31. It is impossible for students in my school district to succeed academically without knowing the language, culture, inventions, and history of people from my racial background. << /ASCII85EncodePages false /AllowTransparency false /AutoPositionEPSFiles true /AutoRotatePages /None /Binding /Left /CalGrayProfile (Dot Gain 20%) /CalRGBProfile (sRGB IEC61966-2.1) /CalCMYKProfile (U.S. Web Coated \050SWOP\051 v2) /sRGBProfile (sRGB IEC61966-2.1) /CannotEmbedFontPolicy /Error /CompatibilityLevel 1.4 /CompressObjects /Tags /CompressPages true /ConvertImagesToIndexed true /PassThroughJPEGImages true /CreateJobTicket false /DefaultRenderingIntent /Default /DetectBlends true /DetectCurves 0.0000 /ColorConversionStrategy /CMYK /DoThumbnails false /EmbedAllFonts true /EmbedOpenType false /ParseICCProfilesInComments true /EmbedJobOptions true /DSCReportingLevel 0 /EmitDSCWarnings false /EndPage -1 /ImageMemory 1048576 /LockDistillerParams false /MaxSubsetPct 100 /Optimize true /OPM 1 /ParseDSCComments true /ParseDSCCommentsForDocInfo true /PreserveCopyPage true /PreserveDICMYKValues true /PreserveEPSInfo true /PreserveFlatness true /PreserveHalftoneInfo false /PreserveOPIComments true /PreserveOverprintSettings true /StartPage 1 /SubsetFonts true /TransferFunctionInfo /Apply /UCRandBGInfo /Preserve /UsePrologue false /ColorSettingsFile () /AlwaysEmbed [ true ] /NeverEmbed [ true ] /AntiAliasColorImages false /CropColorImages true /ColorImageMinResolution 300 /ColorImageMinResolutionPolicy /OK /DownsampleColorImages true /ColorImageDownsampleType /Bicubic /ColorImageResolution 300 /ColorImageDepth -1 /ColorImageMinDownsampleDepth 1 /ColorImageDownsampleThreshold 1.50000 /EncodeColorImages true /ColorImageFilter /DCTEncode /AutoFilterColorImages true /ColorImageAutoFilterStrategy /JPEG /ColorACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /ColorImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000ColorACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000ColorImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasGrayImages false /CropGrayImages true /GrayImageMinResolution 300 /GrayImageMinResolutionPolicy /OK /DownsampleGrayImages true /GrayImageDownsampleType /Bicubic /GrayImageResolution 300 /GrayImageDepth -1 /GrayImageMinDownsampleDepth 2 /GrayImageDownsampleThreshold 1.50000 /EncodeGrayImages true /GrayImageFilter /DCTEncode /AutoFilterGrayImages true /GrayImageAutoFilterStrategy /JPEG /GrayACSImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /GrayImageDict << /QFactor 0.15 /HSamples [1 1 1 1] /VSamples [1 1 1 1] >> /JPEG2000GrayACSImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /JPEG2000GrayImageDict << /TileWidth 256 /TileHeight 256 /Quality 30 >> /AntiAliasMonoImages false /CropMonoImages true /MonoImageMinResolution 1200 /MonoImageMinResolutionPolicy /OK /DownsampleMonoImages true /MonoImageDownsampleType /Bicubic /MonoImageResolution 1200 /MonoImageDepth -1 /MonoImageDownsampleThreshold 1.50000 /EncodeMonoImages true /MonoImageFilter /CCITTFaxEncode /MonoImageDict << /K -1 >> /AllowPSXObjects false /CheckCompliance [ /None ] /PDFX1aCheck false /PDFX3Check false /PDFXCompliantPDFOnly false /PDFXNoTrimBoxError true /PDFXTrimBoxToMediaBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXSetBleedBoxToMediaBox true /PDFXBleedBoxToTrimBoxOffset [ 0.00000 0.00000 0.00000 0.00000 ] /PDFXOutputIntentProfile () /PDFXOutputConditionIdentifier () /PDFXOutputCondition () /PDFXRegistryName () /PDFXTrapped /False /CreateJDFFile false /Description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> /CHS <FEFF4f7f75288fd94e9b8bbe5b9a521b5efa7684002000410064006f006200650020005000440046002065876863900275284e8e9ad88d2891cf76845370524d53705237300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c676562535f00521b5efa768400200050004400460020658768633002> /CHT <FEFF4f7f752890194e9b8a2d7f6e5efa7acb7684002000410064006f006200650020005000440046002065874ef69069752865bc9ad854c18cea76845370524d5370523786557406300260a853ef4ee54f7f75280020004100630072006f0062006100740020548c002000410064006f00620065002000520065006100640065007200200035002e003000204ee553ca66f49ad87248672c4f86958b555f5df25efa7acb76840020005000440046002065874ef63002> /CZE <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> /DAN <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> /DEU <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> /ESP <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> /ETI <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> /FRA <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> /GRE <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a stvaranje Adobe PDF dokumenata najpogodnijih za visokokvalitetni ispis prije tiskanja koristite ove postavke. Stvoreni PDF dokumenti mogu se otvoriti Acrobat i Adobe Reader 5.0 i kasnijim verzijama.) /HUN <FEFF004b0069007600e1006c00f30020006d0069006e0151007300e9006701710020006e0079006f006d00640061006900200065006c0151006b00e90073007a00ed007401510020006e0079006f006d00740061007400e100730068006f007a0020006c006500670069006e006b00e1006200620020006d0065006700660065006c0065006c0151002000410064006f00620065002000500044004600200064006f006b0075006d0065006e00740075006d006f006b0061007400200065007a0065006b006b0065006c0020006100200062006500e1006c006c00ed007400e10073006f006b006b0061006c0020006b00e90073007a00ed0074006800650074002e0020002000410020006c00e90074007200650068006f007a006f00740074002000500044004600200064006f006b0075006d0065006e00740075006d006f006b00200061007a0020004100630072006f006200610074002000e9007300200061007a002000410064006f00620065002000520065006100640065007200200035002e0030002c0020007600610067007900200061007a002000610074007400f3006c0020006b00e9007301510062006200690020007600650072007a006900f3006b006b0061006c0020006e00790069007400680061007400f3006b0020006d00650067002e> /ITA <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> /JPN <FEFF9ad854c18cea306a30d730ea30d730ec30b951fa529b7528002000410064006f0062006500200050004400460020658766f8306e4f5c6210306b4f7f75283057307e305930023053306e8a2d5b9a30674f5c62103055308c305f0020005000440046002030d530a130a430eb306f3001004100630072006f0062006100740020304a30883073002000410064006f00620065002000520065006100640065007200200035002e003000204ee5964d3067958b304f30533068304c3067304d307e305930023053306e8a2d5b9a306b306f30d530a930f330c8306e57cb30818fbc307f304c5fc59808306730593002> /KOR <FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020ace0d488c9c80020c2dcd5d80020c778c1c4c5d00020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200035002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e> /LTH <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> /LVI <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> /NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken die zijn geoptimaliseerd voor prepress-afdrukken van hoge kwaliteit. De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /POL <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> /PTB <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> /RUM <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> /RUS <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> /SKY <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> /SLV <FEFF005400650020006e006100730074006100760069007400760065002000750070006f0072006100620069007400650020007a00610020007500730074007600610072006a0061006e006a006500200064006f006b0075006d0065006e0074006f0076002000410064006f006200650020005000440046002c0020006b006900200073006f0020006e0061006a007000720069006d00650072006e0065006a016100690020007a00610020006b0061006b006f0076006f00730074006e006f0020007400690073006b0061006e006a00650020007300200070007200690070007200610076006f0020006e00610020007400690073006b002e00200020005500730074007600610072006a0065006e006500200064006f006b0075006d0065006e0074006500200050004400460020006a00650020006d006f0067006f010d00650020006f0064007000720065007400690020007a0020004100630072006f00620061007400200069006e002000410064006f00620065002000520065006100640065007200200035002e003000200069006e0020006e006f00760065006a01610069006d002e> /SUO <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> /SVE <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> /TUR <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> /UKR <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> /ENU (Use these settings to create Adobe PDF documents best suited for high-quality prepress printing. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /ConvertToCMYK /DestinationProfileName () /DestinationProfileSelector /DocumentCMYK /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure false /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles false /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /DocumentCMYK /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /UseDocumentProfile /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice 
work_yfaek2mtm5czdaiauehngsj5ni	----	Theoretical Unification in Justice and Beyond IZA DP No. 2641 Theoretical Unification in Justice and Beyond Guillermina Jasso D I S C U S S I O N P A P E R S E R I E S Forschungsinstitut zur Zukunft der Arbeit Institute for the Study of Labor February 2007 Theoretical Unification in Justice and Beyond Guillermina Jasso New York University and IZA Discussion Paper No. 2641 February 2007 IZA P.O. Box 7240 53072 Bonn Germany Phone: +49-228-3894-0 Fax: +49-228-3894-180 E-mail: iza@iza.org Any opinions expressed here are those of the author(s) and not those of the institute. Research disseminated by IZA may include views on policy, but the institute itself takes no institutional policy positions. The Institute for the Study of Labor (IZA) in Bonn is a local and virtual international research center and a place of communication between science, politics and business. IZA is an independent nonprofit company supported by Deutsche Post World Net. The center is associated with the University of Bonn and offers a stimulating research environment through its research networks, research support, and visitors and doctoral programs. IZA engages in (i) original and internationally competitive research in all fields of labor economics, (ii) development of policy concepts, and (iii) dissemination of research results and concepts to the interested public. IZA Discussion Papers often represent preliminary work and are circulated to encourage discussion. Citation of such a paper should account for its provisional character. A revised version may be available directly from the author. mailto:iza@iza.org IZA Discussion Paper No. 2641 February 2007 ABSTRACT Theoretical Unification in Justice and Beyond* The goal of scientific work is to understand more and more by less and less. In this effort, theoretical unification plays a large part. There are two main types of theoretical unification – unification of different theories of the same field of phenomena and unification of theories of different fields of phenomena. Both types are usually a surprise; even when vigorously pursued, their form, when they finally appear, may differ radically from preconceptions. This paper examines a series of twenty-one unification surprises in the study of justice and beyond, sixteen in the study of justice and five in the unification of three fundamental sociobehavioral forces – justice, status, and power – and the subsequent unification of the three sociobehavioral forces with identity and with happiness. JEL Classification: C02, D1, D31, D6, D8, I3, J31 Keywords: fairness, comparison, status, power, identity, happiness, impartiality, inequality, loss aversion, inequality aversion Corresponding author: Guillermina Jasso Department of Sociology New York University 295 Lafayette Street, 4th Floor New York, NY 10012-9605 USA E-mail: gj1@nyu.edu * Earlier versions of this paper were presented at the Conference on Social Justice in a Changing World, University of Bremen, Germany, March 2005, and at the biennial meeting of the International Society for Justice Research, Berlin, Germany, August 2006. I am grateful to participants at those conferences and to Peter Burke, Karen Hegtvedt, Samuel Kotz, Jui-Chung Allen Li, Stefan Liebig, Eva M. Meyersson Milgrom, Dahlia Moore, Nura Resh, Clara Sabbagh, Jane Sell, Jan Stets, Jonathan Turner, David Wagner, Murray Webster, Bernd Wegener, and Christopher Winship for many valuable discussions, and to Kjell Törnblom and Riel Vermunt for a close reading of the paper and many valuable suggestions. This paper is forthcoming in Social Justice Research. mailto:gj1@nyu.edu The terms “theoretical integration” and “theoretical unification” are used1 interchangeably, as in most scientific and philosophical accounts in both the physical sciences (e.g., discussions of electromagnetism and of the electroweak theory) and the social sciences (e.g., Fararo and Skvoretz 2002). This paper, however, leans toward “theoretical unification”, given that “integration” is much used in at least two other important senses, the mathematical operation in calculus and the pivotal social process in the sociobehavioral sciences. 1 1. INTRODUCTION The goal of scientific work is to understand more and more by less and less. In this effort, theoretical unification plays a large part. There are two main types of theoretical unification – unification of different theories of the same field of phenomena and unification of theories of different fields of phenomena. In both, the unification may be of entire theories or of elements of theories. Both types are usually a surprise; even when vigorously pursued, their form, when they finally appear, may differ radically from preconceptions.1 In both types of unification, there are three main kinds of unification operations -- linking postulates from two or more theories, linking predictions from two or more theories, and linking postulates from one or more theories to predictions from a different theory or set of theories, as shown in Figure 1. Alternatively, the unification may involve new operations that do not fit neatly into the extant frameworks. Indeed, the unification operations often have the character of surprises. – Figure 1 about here – This paper examines a series of twenty-one unification surprises in the study of justice and beyond, sixteen in the study of justice and five in the unification of three sociobehavioral forces – justice, status, and power – and the subsequent unification of the three fundamental sociobehavioral forces with identity and with happiness. The first set of unification surprises extended the scope of justice theory and the second set unified several theories, enlarging the 2 field of phenomena covered by the one theoretical umbrella. The paper is organized as follows: Section 2 provides brief background material for the sixteen unification surprises in the study of justice, which are presented in Section 3. Similarly, Section 4 provides brief background material for the five further unification surprises beyond the world of justice, which are presented in Section 5. The exposition mirrors the progressive enlargement of the scope of justice theory and the unification of justice, status, power, identity, and happiness. Thus, we start with the most particular and proceed to the most general. 2. THE WORLD OF JUSTICE To place the justice unification surprises in context, we provide a brief overview of justice analysis. The objective of justice analysis is to describe and understand the operation of the human sense of justice. To that end, justice researchers address four central questions (compiled by Jasso and Wegener 1997): 1. What do individuals and societies think is just, and why? 2. How do ideas of justice shape determination of actual situations? 3. What is the magnitude of the perceived injustice associated with departures from perfect justice? 4. What are the behavioral and social consequences of perceived injustice? The first and third questions focus on justice ideas and judgments, while the second and fourth questions focus on behaviors that are (partly) based on justice ideas and judgments. For example, activities which directly or indirectly shape actual incomes (wage-setting, consumption decisions) may be rooted, in part, in ideas of justice; and the experience of injustice may be among the determinants of participating in protest movements. The study of justice covers both meanings of the term “distribution”: (1) the “proper-2 name” distribution of the reward amounts received by particular individuals; and (2) the “anonymous” frequency distribution of reward amounts. As pointed out by Chipman and Moore (1980:402), the English language unfortunately has a single term for both meanings, in contrast to the French (repartition and distribution, respectively). Note that the “proper-name” distribution corresponds to the principles of microjustice – “who should get what, and why” – and the “anonymous” distribution corresponds to the principles of macrojustice – “what should the distribution look like” – following the distinction introduced by Brickman et al. (1981) and elaborated in Jasso (1983a). Sometimes there is a third actor – the allocator. In general, the allocator need not be a3 human person; it may be society or a deity. If human, the allocator need not be alive, as in the case of bequests and inheritance. 3 Traditionally, justice analysis has distinguished among the things that arouse the sense of justice, assigning distinct subfields to each: benefits and burdens and their distribution, the focus of distributive justice; punishments and their distribution, studied in retributive justice; and procedures, analyzed in procedural justice. A hallmark of distributive justice and of much of retributive justice is that the benefits, burdens, and punishments are quantitative variables, more specifically, personal quantitative characteristics – things of which there can be more or less or on whose hierarchies or distributions individuals can rank higher or lower.2 Justice analysis identifies the key ingredients in justice processes and suggests that each of the four questions may be addressed by a system of generalized equations. Thus, the framework for justice analysis provides the fundamental building blocks -- fundamental actors, quantities, matrices, distributions, and functions. For example, in the distributive-retributive domain, there are two fundamental actors -- the observer and the rewardee -- and three fundamental quantities -- the actual reward, the just reward, and the justice evaluation.3 In the distributive-retributive domain, the first question is addressed by the observer- specific just reward function (a formalization of the referential structure postulated by Berger et 4 (1) al. 1972), which expresses (the observer’s idea of) the just reward as a function of reward- relevant characteristics, and the observer-specific just reward distribution, which represents (the observer’s idea of) the just distributional pattern. Parameters of the just reward function provide estimates of the principles of microjustice; and parameters of the just reward distribution provide estimates of the principles of macrojustice. The just reward function is written: where C denotes the just reward, X denotes a vector of reward-relevant personal and situational characteristics, and g denotes a stochastic error. Meanwhile, the answer to the third central question – the justice evaluation – is a spartan bridge that connects the rich and sometimes raucous and seemingly unruly worlds of the first and fourth questions: For example, in the realm of distributive justice the justice evaluation function (JEF) represents the justice evaluation as a function of the comparison of the actual reward and the just reward (Jasso 1978, 1999), where è is the Signature Constant, whose sign is positive for goods and negative for bads and whose absolute value measures the observer’s expressiveness In turn, the justice evaluation is followed by a myriad individual and social phenomena, from emotions to revolution. As will be seen, many of the unification surprises in the field of justice center on the benefits and burdens, (2) (3) 5 punishments, and procedures, and the justice evaluations about them, together with the train of consequences triggered by the justice evaluation. The logarithmic-ratio specification in (3) possesses properties sufficiently appealing that Jasso (1978) proposed it as a universal Law of Justice Evaluation and quickly used it as the first postulate in a new theory (Jasso 1980). Some properties of the log-ratio specification of the justice evaluation function are: First, it provides an exact mapping from combinations of A and C to the justice evaluation J, with zero representing the point of perfect justice, positive numbers representing degrees of unjust overreward, and negative numbers representing degrees of unjust underreward. Second, it embodies the property that deficiency is felt more keenly than comparable excess – deficiency aversion (and loss aversion, viz., losses are felt more keenly than gains). These properties were quickly discussed (e.g., Wagner and Berger 1985) and remain the most often cited (Whitmeyer 2004). Third, it is the only function which satisfies two other desirable conditions, additivity (the effect of A on J is independent of the magnitude of C, and the effect of C on J is independent of the magnitude of A) and scale invariance (expressing A and C in different units – say, yen instead of dollars – does not alter J). Fourth, the function is symmetric; that is, if the actual holding A and the comparison holding C trade places, the outcome is the negative of J. Two other properties are described below in Unification Surprises 8 and 9 (unification of rival conceptions of the justice evaluation as a ratio and as a difference, and unification of the logarithmic and power-function specifications of its functional form, respectively). Recently, another (almost magical) property has come to light, linking the JEF and the Golden Number, . Further detail on these properties is found in Jasso (1978, 1990, 2006c). Exposition of the derivation of these and other predictions is provided in the original4 articles. For example, derivation of the first example prediction is found in Jasso (1993b) and of the fourth in Jasso (1993a). For further detail on theoretical derivation, see also Jasso (1988, 2001a, 2005). 6 The new justice theory yields such predictions as: (1) parents of nontwin children will spend more of their toy budget at an annual gift-giving occasion than at the children's birthdays; (2) among World War II veterans, American soldiers are more vulnerable to post-traumatic stress syndrome than are German soldiers; (3) in epochs when wives predecease husbands, mothers are honored more than fathers, but in epochs when husbands predecease wives, fathers are honored more than mothers; (4) interracial conflict is more severe when the overall income inequality is greater; and (5) the just society has a mixed government. 4 The justice evaluation also leads to several societal justice indexes, including: JI1, defined as the arithmetic mean of the justice evaluations; JI1*, defined as the arithmetic mean of a special case of the justice evaluation, the case in which the just reward equals the arithmetic mean of the actual rewards; and JI2, defined as the arithmetic mean of the absolute values of the justice evaluations (Jasso 1999). A key question pertains to the individual’s choice of reward to value (Jasso 1980, 1981, 1987). Of course, justice situations may involve several rewards simultaneously. For such situations Jasso (1980:6, 10-11, 14, 30) proposed multiple-characteristic justice evaluations. The multiple rewards may be positively associated, negatively associated, or independent, and this shapes the resultant distribution of justice evaluations. Jasso (1980) reported theoretical results for the independent case, and Jasso (1983b:264) for the negatively associated case. If the multiple rewards are identically distributed, the distribution of justice evaluations in the positively associated case remains the same as in the single-characteristic case. 7 3. UNIFICATION SURPRISES IN THE STUDY OF JUSTICE Unification Surprise 1 Unification of Cardinal and Ordinal Goods in Distributive Justice The initial statement of the proposed new Law of Justice Evaluation embodied in the justice evaluation function in (3) was intended for cardinal goods (Jasso 1978). In modern terms, quantitative characteristics are characteristics of which there can be more or less, or on which entities can rank higher or lower, and goods are quantitative characteristics of which more is preferred to less. Quantitative characteristics span both cardinal things (like wealth and land) and ordinal things (like beauty and intelligence). It quickly became clear that the sense of justice is awakened by ordinal goods as well as cardinal goods. The question was how to treat ordinal goods in the justice evaluation function. As described in Jasso (1980), the proposed solution was to measure ordinal goods by the individual’s relative rank within a specially selected comparison aggregate. Accordingly, in situations involving ordinal characteristics, both the actual reward and the just reward are expressed as relative ranks; cardinal goods continue to be represented in their own units (for example, money or hectares of land). This solution became known as the Measurement Rule. Unexpectedly, unification of cardinal and ordinal things was to generate an explosion of new predictions in the fledgling new theory of distributive justice. These include the prediction that the most beautiful or most intelligent person in a group experiences only modest overreward in contrast to the richest and the prediction that in a society that values ordinal goods, now known as a nonmaterialistic society, conflict between warring subgroups is a decreasing function of the proportion in the disadvantaged subgroup, while in a materialistic society the relation between subgroup conflict and the proportion in the bottom subgroup can be increasing, For a sampling of predictions for the effects of materialistic and nonmaterialistic5 regimes, see Jasso (2001a:672-673). The distinction between qualitative and quantitative characteristics, long appreciated in6 mathematics (e.g., Allen 1938:10-11) and in statistics and econometrics, has since the pioneering work of Blau (1974, 1977ab) come to be seen as structuring behavioral and social phenomena in a fundamental way. 8 decreasing, or nonmonotonic, depending on the form of the distribution of the valued material goods.5 Unification Surprise 2 Unification of Quantitative and Qualitative Characteristics in Distributive Justice Human characteristics include not only quantitative characteristics – such as the cardinal and ordinal goods of Unification Surprise 1 – but also qualitative characteristics like sex, race, and nativity. At first it seemed that the justice evaluation function and justice theory ignored6 qualitative characteristics. Such characteristics did not seem to be much in evidence, in contrast to quantitative characteristics like wealth, beauty, and athletic skill. But soon it became clear that qualitative characteristics play a powerful role in justice analysis, indeed were already playing a powerful role, albeit disguised as “aggregates” or “grouping characteristics” or “attributes” which are “categorical variables” and “ways of sorting people” (Jasso 1980, 1981, 1983b). First, in the just reward function shown in (1), which addresses the first central question in the study of distributive justice – What do individuals and societies think is just, and why? – qualitative characteristics may operate as reward-relevant characteristics (Jasso 1983a). Second, in the justice evaluation function qualitative characteristics may operate in two ways: (1) categories of qualitative characteristics provide the group within which the relative ranks on ordinal goods are measured; and (2) categories of qualitative characteristics provide the 9 group within which to measure the just reward when it is specified as a parameter of a distribution (such as the mean, minimum, or median). Third, in theoretical and empirical work involving distributions of justice evaluations, qualitative characteristics operate in two ways: (1) categories of qualitative characteristics provide the collectivity within which the distribution is defined; and (2) qualitative characteristics provide the subgroups discernible within a group. For example, in a study of Japanese men and women, a category of the nationality variable provides the group, and the sex variable provides the subgroups. Unification Surprise 3 Unification of Goods and Bads in Distributive Justice Goods are quantitative things of which more is preferred to less, and bads are quantitative things of which less is preferred to more. At least since Berger, Zelditch, Anderson, and Cohen (1972:128), it had been understood that the things that awaken the sense of distributive justice include both goods and bads. Now it came to be seen that the same theoretical and empirical apparatus of distributive justice, including the just reward function and the justice evaluation function, can be used for both goods and bads. The just reward function shown in expression (1) can be used for both goods and bads. For example, C can as easily be earnings as time in prison (for illustrations, see Rossi, Simpson, and Miller 1985 and Jasso 1998). In the justice evaluation function in (3), the unification surprise involved the operation of the Signature Constant è. A decade after the justice evaluation function was introduced, it became clear that the sign of è indicates whether the observer making the justice judgment regards the reward as a good or as a bad – positive è for goods, negative è for bads (Jasso 1990). 10 Unification Surprise 4 Partial Unification of Distributive and Retributive Justice An early insight was that many of the punishments covered by retributive justice are a special case of bads. Examples include fines and time in prison. The same theoretical and empirical apparatus can be used for both the burdens of distributive justice and the punishments of retributive justice. Exceptions include penalties which are not quantitative variables, such as a death sentence, loss of citizenship, and exile, and thus we label this unification a partial unification. The unification was led by Rossi, Simpson, and Miller (1985), who studied time in prison using the empirical framework developed by Jasso and Rossi (1977) to study earnings, and Törnblom and his associates (Törnblom and Jonsson 1985; Törnblom 1988; and Törnblom and Vermunt 1998). Further systematization of the unified framework came from Jasso (1998), with many other scholars simultaneously reaching the same conclusion (see the many pertinent references in the special issue of Social Justice Research edited by Törnblom and Vermunt in 1998). Unification Surprise 5 Unification of Justice for Self and Justice for Others Since the early days of the scientific study of justice, justice researchers have studied both justice for self and justice for others. Unification occurred almost without thinking. The thief in the night was the justice evaluation function, which though starting life in an empirical study of justice for others, was from the beginning conceptualized as pertaining to either self or other (Jasso 1978:1400) and was quickly used in a new theory whose starting point was justice for self (Jasso 1980). New vocabulary and notation soon followed (Jasso 1989). The rewardee can be Some readers have sought to relate this unification to the classical distinction between7 subjective things like ideas, attitudes, and judgments and objective behavior, supposing that perhaps ideas of justice are subjective and reactions to injustice are objective. But the justice process is considerably more intricate and more nuanced, for the reactions to injustice include both subjective and objective things. Nonetheless, if we restrict attention to objective reactions to injustice (e.g., signing a petition, contributing time or money, participating in a strike), then we may describe this unification as involving two subjective things and two objective things. The subjective just reward, compared to the objective actual reward, generates the subjective justice evaluation, which in turn triggers the objective reactions to injustice. Before the justice evaluation function was introduced, the links among the four terms – as shown in Figure 2, the link between the actual reward and the justice evaluation, the link between the just reward and the justice evaluation, and the link between the justice evaluation and the reactions to injustice – were hidden from sight. The justice evaluation function brought to light the exact relations among the four terms and in so doing built a bridge between the two classical literatures on ideas of justice and on reactions to injustice. 11 self or other; the first case is called reflexive, the second nonreflexive. The two cases can be joined in a single framework, where they are contrasted by a special subscript “r” which denotes the rewardee and has become part of the five fundamental subscripts representing the five fundamental contexts: brots – for benefit/burden, rewardee, observer, time period, and society. Unification Surprise 6 Unification of Ideas of Justice and Reactions to Injustice The justice evaluation forms a bridge between two classical literatures, the literature on ideas of justice and the literature on reactions to injustice. The justice evaluation, as shown in expressions (2) and (3), is produced by the comparison of the actual situation with the observer’s ideas of justice. In turn, the justice evaluation sets in motion a train of reactions to injustice. This unification was one of the immediate payoffs of introduction of the justice evaluation function in Jasso (1978). Before the justice evaluation function, going from ideas of justice to reactions to injustice required a leap. Figure 2 presents a diagrammatic view of the world of distributive justice, including both ideas of justice and reactions to injustice.7 12 – Figure 2 about here -- Unification Surprise 7 Partial Unification of Distributive/Retributive and Procedural Justice Some of the procedures studied in procedural justice are quantitative variables – for example, the number of persons consulted, the amount of time spent in deliberation, the weights given to different opinions. The same theoretical and empirical apparatus can be used for both distributive/retributive justice and this subset of procedural justice (Jasso and Wegener 1997; Törnblom and Vermunt 1999). In the case in which procedures are quantitative variables, the just reward function (3), which addresses the first core question -- a function in which the just reward is a function of rewardee and situational characteristics (such as the just punishment is a function of the severity of the crime) – can be used as the just procedure function. For example, the just procedure is a function of the number of persons consulted, etc. Similarly, whenever procedures are quantitative variables, the justice evaluation function can be used in procedural justice. Further, predictions of distributive justice theory yield ideas about just procedures – for example, the prediction that the just society has a mixed government in which distribution of benefits is by the many and distribution of burdens by the few (Jasso 1999, 2001b). Unification Surprise 8 Unification of Ratio and Difference Conceptions of the Justice Evaluation By the early 1970s, it had been long understood that what later came to be called the justice evaluation arises from the discrepancy between the actual situation and the observer’s idea of the just situation. There appear, however, to have been contradictory notions of the best 13 way to represent the discrepancy. Scholars led by Homans (1974, 1976) argued that it should be represented by a ratio and scholars led by Berger (Berger et al. 1972) that it should be represented by a difference. Published discussions are few, but my experience in graduate school in the early 1970s suggests a lively oral tradition. Discovery of the logarithmic-ratio specification of the justice evaluation function showed a way to unify the opposing ratio and difference conceptions. This unification was achieved via the properties of logarithms: This unification was one of the first properties noticed in the new justice evaluation function (Jasso 1978:1417). Subsequently, this unification was described as an example of theoretical integration (Wagner and Berger 1985). Unification Surprise 9 Unification of Logarithmic and Power-Function Functional Forms for the Justice Evaluation In classical psychophysics there is a long tradition of argument concerning the best and most faithful representation of sensation functions. The main alternatives are the logarithmic form introduced by Daniel Bernoulli ([1738] 1954) as a specification of the utility function and proposed by Fechner ([1860] 1907) as a specification of the sensation function and the power function favored by S. S. Stevens (1975) and his colleagues. Stevens (1975) provides a lively account of this longstanding discussion. Jasso’s (1978) introduction of the logarithmic-ratio specification of the justice evaluation function triggered similarly lively discussion of the correct form of the justice evaluation (4) 14 function, starting with So³tan (1981). As with the earlier discussion of ratio versus difference conceptions, this discussion was most intense outside the published record, in the discussion segments of sessions at professional meetings and lectures and in referee reports. It prompted a full-scale examination of the foundations of the justice evaluation function and a search for properties that a desirable function should satisfy, culminating in Jasso’s (1990) compilation of desiderata and of plausible functional forms, together with a proof that the log-ratio form is the only functional form which simultaneously satisfies two of the desiderata, scale invariance and additivity. Echoing the psychophysical tradition, one of the more appealing alternative forms is a difference between two power functions, a form which satisfies additivity (and symmetry) but not scale invariance. In a remarkable unification surprise, the logarithmic and power-function forms are linked via the following classical result in mathematics (Jasso 1996:293-294, 296): where, as before, A denotes the actual reward and C denotes the just reward. Jasso (2006b:403, 406-407) shows empirically the rapidity with which the difference between two log functions approaches the log of the ratio. This remarkable limit in (5) not only unifies the logarithmic and power-function conceptions of the justice evaluation, but also it provides further support for the unification of the ratio and difference conceptions (Unification Surprise 8). Moreover, it shows that a function which is not scale-invariant can approach a scale-invariant form, and it underscores the universal and fundamental character of the logarithmic function, which, like its relative the transcendental number e, appears in the most unexpected places. (5) 15 (6) Unification Surprise 10 Unification of Micro and Macro Levels in Justice Theory There are three manifestations of the unification of micro and macro levels in justice theory. The first two involve the representation of micro and macro variables in the basic justice framework. The reward whose consideration generates a justice situation can be a characteristic of individuals or a property of groups. Both of these classes of rewards can be straightforwardly accommodated in both the just reward function and the justice evaluation function. Micro and macro levels in the just reward function. The just reward function can as easily describe the connection between a person’s schooling and just earnings as the connection between a province’s climatic features or vulnerability to terrorist attacks and its share of national revenues. Other cases quickly come to mind; consider, for example, the link between a country’s health and demographic profile and its share of the world’s foreign aid. Micro and macro levels in the justice evaluation function. The corresponding justice evaluation functions are natural extensions of the individual-level justice evaluation function (Jasso 1994): Micro and macro levels in theoretical predictions. The third manifestation of the unification of micro and macro levels comes from the predictions derived from justice theory, for these span all levels of analysis – from dyads to the largest populations -- as has been shown since the first statement of justice theory (Jasso 1980) and continues to be shown year after year in new derivations. To illustrate, consider the following predictions: As noted earlier, full detail on derivation of these predictions is provided in the original8 articles presenting them. 16 1. The gain from theft is greater when stealing from a fellow group member than from an outsider; and this premium is larger in poor groups than in rich groups. 2. Parents will spend more of their toy budget at an annual giftgiving occasion rather than at the children’s birthdays. 3. A thing changes value as it or its owner moves from group to group. 4. Shifts in employment or earnings that increase marital cohesiveness increase the well- being of one spouse but decrease the other's. 5. Vocations to the religious life are an increasing function of income inequality. 6. Whether subgroup conflict increases or decreases with the proportion in the bottom subgroup depends on the distributional form of the valued good. 7. Veterans of wars fought away from home have higher rates of posttraumatic stress syndrome than veterans of wars fought on home soil. 8. The proportions Selfistas, Subgroupistas, and Groupistas in a society are a function of the societal valued goods and their distribution. Note how the predictions pertain to individuals and to groups of all sizes, as well as to goods and bads.8 Unification Surprise 11 Unification of Justice and Inequality For all of recorded history, humans have linked justice and equality – as in the Gorgias where Plato has Socrates say, “Justice is equality” – and injustice and inequality – as in Theodore Roosevelt’s (1913) observation about “the inequality which means injustice.” The connection 17 (7) (8) between justice and inequality seemed self-evident, an axiom perhaps or a primitive to be assumed without further concern. Thus, it was a great surprise when it started to become clear that the link between justice and inequality can be established as a deduced consequence of justice theory. The connection between inequality and justice need no longer be asserted; rather, it is derived from the basic postulates of justice theory. The first glimpse of the explicit unification to come occurred in Jasso (1980, 1982), but the unification itself did not begin to receive systematic treatment until Jasso (1999) and even now is not yet fully published. The link is made by connecting three distinct representations of inequality to terms derived from the justice evaluation function. In all cases, the links lead to the conclusion that “Injustice is an increasing function of inequality.” Justice and Atkinson’s measure of inequality. Atkinson (1970, 1975) proposed a family of measures of inequality, one of whose members is defined as one minus the ratio of the geometric mean to the arithmetic mean. This measure, which we call the Atkinson-inequality and denote by , can be shown to appear as a term in the justice index JI1 developed in Jasso (1999). JI1, which is the arithmetic mean of the justice evaluations, can be expressed as a function of four group-level terms, the actual and just mean and the actual and just Atkinson- inequality: Taking the first partial derivative of the justice index JI1 with respect to the inequality in the actual-reward distribution, 18 (9) Given that Atkinson's inequality lies between zero and one (being closed at zero and open at one), the derivative in (8) is always negative. Therefore, as Atkinson's inequality increases, the justice index decreases. Justice and Theil’s second measure of inequality. Theil (1967:125-127)) proposed two measures of inequality, the famous Theil’s measure and a second measure called variously “Theil’s second measure” or the mean logarithmic deviation (MLD), a measure somewhat neglected which has recently received renewed attention because of its additive decomposability. It is a great surprise that the MLD turns out to be the negative of JI1* – the negative, that is, of the arithmetic mean of the special justice evaluations defined with equality as the just reward. Thus, as inequality increases, so does injustice. Justice and the general inequality parameter in continuous two-parameter distributions. As proposed by Jasso (1991) and Jasso and Kotz (unpubl), in two-parameter distributions one parameter is a location parameter and the second parameter operates as a general inequality parameter, a parameter which governs all measures of inequality, so that all measures of inequality are monotonic functions of the general inequality parameter. If the justice index is expressed in terms of the mean and the general inequality parameter of the continuous two- parameter distribution representing the actual reward distribution, then it can be shown that injustice is an increasing function of inequality. For example, in the case in which the actual reward is Pareto-distributed, the justice index is written: Taking the first partial derivative of the justice index (expression 9) with respect to the inequality in the actual-reward distribution, represented by the general inequality parameter k, we 19 (10) (11) (12) find that the derivative is positive and hence the justice index is an increasing function of k. Because in the Pareto, inequality increases as k increases, we conclude that in the Pareto, the justice index is a decreasing function of inequality. Thus, justice theory predicts inequality aversion. Unification Surprise 12 Partial Unification of Poverty and Inequality The arithmetic mean of the justice evaluations in distributive justice – the justice index JI1 – yields a decomposition of overall injustice into injustice due to poverty and injustice due to inequality (Jasso 1999), expressed in terms of the arithmetic mean and the Atkinson-inequality: and referred to as: The two components are known as the mean-component and the inequality-component. In words, the decomposition may be written: where f denotes an increasing function. Unification Surprise 13 Unification of Justice and Subgroup Inequality When a group or population has a subgroup structure – for example, if the group or population consists of both males and females or persons of two or more races (as discussed in Unification Surprise 2) – a set of subgroup inequality measures are generated. These depict the 20 (14) (15) gap in some quantitative characteristic, such as income, between two subgroups. One common measure of the subgroup inequality is the ratio of one subgroup’s mean to the other subgroup’s mean (Jasso and Kotz, unpubl). Thus, for example, empirical analysts have estimated the actual gender gap in earnings and, if data permit, compared it to the estimated just gender gap in earnings (e.g., Jasso and Wegener 1999). What might be the connection between overall injustice and the gender gaps? As in the other surprises, it was a surprise to discover that the log of the ratio of the actual subgroup inequality to the just subgroup inequality is equal to the signed difference between the mean-components of JI1 for the two subgroups (Jasso 2004:426-427). To illustrate, in the case of gender-based subgroups, the exact relation is: Note that the inequality components do not appear in this expression, showing that the usual way of measuring gender gaps is inattentive to within-gender inequality. Unification Surprise 14 Partial Unification of Reality and Ideology The arithmetic mean of the justice evaluations in distributive justice – the justice index JI1 – yields a decomposition of overall injustice into a portion due to reality and a portion due to ideology (Jasso 1999): or in words, (13) 21 Unification Surprise 15 Partial Unification of Justice and Impartiality Classical notions of impartiality highlight impartial assignment of just rewards or, equivalently, universalistic application of the just reward function and the principles of justice. Recent work, however, yields two new types of impartiality which go beyond impartiality in the first central question of justice (highlighting just rewards) to impartiality in the third central question (highlighting justice evaluations). These two new types of impartiality are framing- impartiality and expressiveness-impartiality. Framing-impartiality pertains to impartiality in framing a reward as a good or as a bad, assessing whether the observer frames a particular reward in the same way for all others and/or in the same way for a particular other and self. Expressiveness-impartiality pertains to impartiality in the way the observer expresses the justice evaluation across self and other and across different others. Framing-impartiality is tested by testing the sign of the Signature Constant in the justice evaluation function in (3), and expressiveness-impartiality by testing the absolute magnitude of the Signature Constant. The first empirical assessment of framing-impartiality and expressiveness-impartiality is reported in Jasso (2006a). The theoretical and empirical apparatus of distributive justice enables assessment of impartiality in ideas of justice, framing, and expressiveness. Further, this unification surprise opens the door to a systematic examination of impartiality with respect to each of the four central questions in the study of justice (Section 2 above). Impartiality in the just reward (Question 1) is the classical kind of impartiality. Impartiality with respect to framing and expressiveness (Question 3) is the new kind of impartiality brought to light in Jasso (2006a). Remaining types of impartiality are impartiality in 22 allocation (Question 2) and impartiality in reactions to injustice (Question 4). Note how this unification surprise provides a framework, as it were, for classical notions of impartiality; it sharpens and specifies known types of impartiality even as it brings to light new types of impartiality, broadening the concept and enlarging its scope of operation. Unification Surprise 16 Unification of Pre-Existing Subgroups and Emergent Subgroups It has long been noticed that some subgroup structures are pre-existing, that is, they pre- exist sociobehavioral operations, while other subgroup structures arise in the course of sociobehavioral operations. An early insight of justice theory is that in all groups – whether or not they have pre-existing subgroups – justice operations generate three emergent subgroups: the underrewarded, the justly rewarded, and the overrewarded (Jasso 1980). Subsequent justice analysis of groups with pre-existing subgroups – based on qualitative characteristics such as race or sex – enabled assessment of the joint structure of pre-existing and emergent subgroups and paved the way for study of “bridging” phenomena (Jasso 1983b). Only recently, however, has the full potential of this unification started to become visible. A new analysis reported in Jasso (2005) shows how, given a structure of pre-existing subgroups, justice operations generate a new structure of emergent subgroups, consisting of persons oriented to self (called Selfistas), persons oriented to the pre-existing subgroup (called Subgroupistas), and persons oriented to the entire group (called Groupistas) Because all the pre-existing subgroups may contain individuals in any of the emergent subgroups, the stage is set for analysis of boundary permeability and of bonding and bridging phenomena (briefly discussed below in Unification Surprise 21). In mathematical vocabulary, the status variable is the dependent variable in the status9 function whose arguments are quantitative characteristics within a group defined by qualitative 23 4. THE WORLD BEYOND JUSTICE To this point the unification surprises have all been within the world of justice. Now we move beyond justice. We begin with the partial unification of justice and the other comparison processes (also known as reference-point processes), and then continue to unification of the theories of comparison, status, and power, going on to a unification with identity theory and finally with happiness. In preparation for presentation of the unification surprises, we review briefly three theories – comparison theory, status theory, and identity theory. As will be seen, a key insight is that all the theories have at their heart a bundle of three elements, one from each of three sets: • personal quantitative characteristics • personal qualitative characteristics • primordial sociobehavioral outcomes Personal quantitative and qualitative characteristics have already been introduced (Unification Surprise 2). The primordial sociobehavioral outcomes (PSOs) are generated from quantitative characteristics within the groups formed by categories of qualitative characteristics. This is the fundamental template for a sociobehavioral force. The global process, including all three elements, is called by the name of the PSO and characterized variously as a behavioral engine, a driver, a mechanism, or a motivational process. For example, the sociobehavioral force “status” subsumes the status PSO, the distinctive mechanism associated with the status PSO, the quantitative characteristics from which the status PSO is generated, and the qualitative characteristics within whose categories the status PSO is generated. Importantly, each force has9 characteristics. 24 a long reach and yields implications for farflung phenomena and associations. 4.1. Comparison Theory Comparison theory begins with the classic idea that humans compare their holdings of goods and bads (levels of ordinal characteristics or amounts of cardinal characteristics) to the levels or amounts they think just or appropriate for themselves, and thereby experience well- being, self-esteem, the sense of justice, and a variety of other outcomes. The key characteristic of comparison processes (also known as reference-point processes) is that the outcome depends on two inputs – an actual holding and a comparison holding – and that the two inputs have opposite effects. In the case of goods, the larger the actual holding of a good, holding constant the comparison holding (the just amount, say), the greater the self-esteem or other comparison outcome; and the larger the comparison holding, holding constant the actual holding, the lower the self-esteem or other comparison outcome. Early formulations of the comparison family are found in William James ([1891]1952:200), Marx ([1849]1968:84-85), and Durkheim ([1893]1964). For example, William James, in the famous tenth chapter of Principles of Psychology, titled "The Consciousness of the Self," analyzes the production of self-esteem ([1891]1952:200) as follows: [Our self-feeling] is determined by the ratio of our actualities to our supposed potentialities; a fraction of which our pretensions are the denominator and the numerator our success; thus, Self-esteem = Success/Pretensions. Such a fraction may be increased as well by Notable contributions include Baldwin (1899-1891), Stouffer et al. (1949), Merton and10 Rossi (1950), Festinger (1954), Thibaut and Kelley (1959), Merton ([1949, 1957] 1968), Runciman (1961), Homans ([1961]1974), Wright (1963), Blau (1964), Hyman (1968), Lipset (1968), Sherif (1968), Zelditch (1968), and Berger, Zelditch, Anderson, and Cohen (1972). A brief history of comparison ideas is found in Jasso (1990) and a summary in Jasso (2001a). 25 (16) diminishing the denominator as by increasing the numerator. To give up pretensions is as blessed a relief as to get them gratified. . . . In this passage, James isolates the effects of an individual's actual holding and comparison holding on self-esteem, thus arriving at the key characteristic of comparison processes, namely, that the comparison outcome – in this case, self-esteem – depends on two inputs, the actual holding and the comparison holding, and the two inputs have opposite effects, the actual holding increasing the comparison outcome and the comparison holding decreasing the comparison outcome. The early formulations were followed by progressively sharper and more precise analyses in the twentieth century. The basic comparison idea is now expressed mathematically:10 where Z denotes the comparison outcome (say, self-esteem or the justice evaluation) and, as in the justice evaluation function from which the comparison function developed, A denotes the actual holding of a good or bad, C denotes the comparison holding, and is the Signature Constant, whose sign is positive for goods and negative for bads and whose absolute value measures the observer’s expressiveness. As discussed earlier, Jasso (1978) introduced the log- ratio function as a specification of the justice evaluation function, and, as will be discussed in Unification Surprise 16, subsequently generalized it to the larger set of comparison processes 26 (Jasso 1990). The log-ratio comparison function inherits all the properties of the justice evaluation function. First, it provides an exact mapping from combinations of A and C to the comparison outcome Z, with zero representing a neutral point, positive numbers representing positive self- esteem or overreward in the justice case, and negative numbers representing negative self-esteem or underreward in the justice case. Second, it embodies the property that deficiency is felt more keenly than comparable excess, the vaunted deficiency aversion and loss aversion. Third, the function is the only function which satisfies two other desirable conditions, additivity (the effect of A on Z is independent of the magnitude of C, and the effect of C on Z is independent of the magnitude of A) and scale invariance (expressing A and C in different units – say, yen instead of dollars – does not alter Z). Fourth, the function is symmetric; that is, if the actual holding A and the comparison holding C trade places, the outcome is the negative of Z. Fifth, the function integrates rival conceptions of comparison processes as a difference and as a ratio (Unification Surprise 8). Sixth, the log-ratio form is the limiting form of the difference between two power functions, integrating log and power approaches and further strengthening integration of difference and ratio approaches (Unification Surprise 9). Recently, as noted above, another (almost magical) property has come to light, linking the comparison function and the Golden Number, . Further detail on these properties is found in Jasso (1978, 1990, 2006c). Both quantitative and qualitative characteristics operate in comparison theory. Personal quantitative characteristics provide the holdings of goods and bads about which comparison processes are experienced. For example, self-esteem may be derived from beauty, or from wealth, or from bravery, or from athletic skill. Cardinal characteristics are measured in their own 27 units, and ordinal characteristics are measured as relative ranks within a group. To illustrate, a given individual may regard skill in a musical instrument as a good and experience self-esteem about it; in this case, skill is an ordinal good and measured as a relative rank within a group. The same individual may regard taxes as a bad and experience a justice evaluation about it; in this case, taxes are a cardinal bad and measured in a monetary currency. Qualitative characteristics operate in comparison theory in two major ways. First, qualitative characteristics provide the group within which a comparison process takes place. The group in turn is used in two ways: (a) to measure relative rank when the good (or bad) is an ordinal characteristic; and (b) to measure the comparison holding when it is specified as a parameter of a distribution. Second, qualitative characteristics provide the subgroups within the main group or population. Note that there is one case in comparison theory when a qualitative characteristic is not required – the case in which the good (or bad) is cardinal and the comparison holding is a directly selected amount. For example, in the illustration above in which taxes are the subject of the comparison, if the amount of taxes thought just is a particular amount of money, no group is required; however, if the amount of taxes thought just is a parameter of the tax distribution (such as the mean or the 25 percentile), then a group is required to provide the context for the taxth distribution. Thus, comparison theory has at its core the three elements of a sociobehavioral force: (1) personal quantitative characteristics, about which comparison processes are experienced; (2) personal qualitative characteristics, which provide the group within which comparison processes occur (required in every case save one) and give rise to subgroups within groups; and (3) primordial sociobehavioral outcomes, such as self-esteem and the sense of justice. Moreover, 28 because comparison theory focuses exclusively on one PSO – comparison, which gives the theory its name – it is in fact a theory of one sociobehavioral force. Comparison theory also generates several new quantities and sets in motion a train of new processes. These include: (1) a repertoire of goods and bads about which comparison processes are experienced; (2) a repertoire of comparison holdings; (3) a repertoire of groups for measuring ordinal goods and bads and, in some cases, for measuring comparison holdings of cardinal goods and bads; (4) relative importance of goods and bads; (5) the individual’s comparison profile (that is, a person’s time series of comparison outcomes); (6) the cross-sectional distribution of a comparison outcome in a group; and (7) subdistributions of a comparison outcome in subgroups, together with subgroup-specific parameters of the subdistributions as well as gaps across subgroups. 4.2. Status Theory In status theory, persons accord to each other, and expect from each other, a given measure of status – or, as it is variously called, prestige, respect, deference, esteem, honor (Zelditch 1968; Sennett 2003). Status is represented by positive numbers (the higher the number, the greater the status), and is thought to arise from individuals’ personal quantitative characteristics, such as beauty, intelligence, or wealth, where the individual’s standing on these quantitative characteristics is represented by his or her relative rank within a group or population defined by a qualitative characteristic. The mathematical foundation for studying status was laid by Berger, Cohen, and Zelditch (1966), Berger, Fisek, Norman, and Zelditch (1977), Goode (1978), and So/ rensen (1979). Goode (1978) observed that status increases at an increasing rate, and So/ rensen (1979) proposed a specific mathematical function for studying the status of occupations. Noting that the function Relative rank is represented by the open interval between zero and one. Thus, the11 lowest-ranking person has a relative rank which approaches zero from the right, and the highest- ranking person has a relative rank which approaches unity from the left. In small groups, relative rank is approximated by [i/(N+1)], where i denotes the absolute rank in ascending order from 1 to the group size N. These approximated relative ranks have the property that the lowest and highest relative ranks are equidistant from .5 and that the distance between the lowest relative rank and zero equals the distance between the highest relative rank and 1. 29 proposed by So/ rensen (1979) satisfies Goode’s (1978) convexity condition, Jasso (2001c) applied it to the status of individuals: where S denotes status and r denotes the relative rank.11 Ridgeway (1991, 1997b, 2001) introduced the distinction between cardinal characteristics and qualitative characteristics into the study of status – paralleling the Unification Surprise 2 in the study of justice -- and Webster and Hysom (1998) extended her reasonings about cardinal characteristics to all quantitative characteristics, including ordinal characteristics – paralleling the Unification Surprise 1 in the study of justice. As in justice and comparison, status may be produced by two or more characteristics simultaneously, and Jasso (2001c:101-102) theorized that in this case the multiple-good status function is a weighted average of the single-good status functions, where the weights represent the importance of each good. Earlier, Berger, Cohen, and Zelditch (1966:44), had noted that negatively associated characteristics would reduce status inequality (a relation subsequently established for small groups by Humphreys and Berger (1981)), and Berger, Fisek, Norman, and Zelditch (1977:126-127) had proposed the principle of organized subsets for dealing with multiple negatively associated characteristics. As in justice theory, the form of the status (18) Other notable contributions to status theory include Sampson and Rossi 1975; Nock12 and Rossi 1978; Bose and Rossi 1983; Turner 1984, 1995; Ridgeway and Balkwell 1997; Sennett 2003. See Jasso 2001c for a brief overview of the several status literatures. 30 distribution has been obtained for the case of perfectly positively associated goods, perfectly negatively associated goods, and independent goods (Jasso 2001c; Jasso and Kotz 2007).12 It is evident that status theory, like comparison theory, has at its core the three elements of a sociobehavioral force: (1) personal quantitative characteristics, which form the basis for according (or receiving) status; (2) personal qualitative characteristics, which provide the group within which status processes occur (and are required for calculating the relative ranks) and give rise to subgroups within groups; and (3) the primordial sociobehavioral outcome, status. Moreover, because status theory focuses exclusively on one PSO – status, which gives the theory its name – it is in fact a theory of one sociobehavioral force. 4.3. Identity Theory The concept of identity appears in all the sociobehavioral sciences, providing an appealing way to organize thinking about the self and about important social affiliations. Social psychologists working in psychology pioneered what is called “social identity theory,” and social psychologists working in sociology pioneered what is called “identity theory,” which here we refer to as “sociological identity theory.” The simple phrase “identity theory” will be used to refer to all theories of identity. 4.3.1. Sociological Identity Theory Sociological identity theory consists of a set of general ideas about self and society and two main variant theories (Stryker and Burke 2000). Sociological identity theory, in both variants, conceptualizes the self as a collection of identities. The identities each consist of a The variant associated with Stryker highlights external aspects of a collection of13 identities, such as their relation to the social structure, while the variant associated with Burke highlights internal dynamics of a single identity (Stryker 2001:228; Stets and Burke 2002:136). 31 complex of role-related phenomena, including expectations, performance, competence, enactment, behavior, and meanings. The identities are situated in networks of relationships among actors, for example, father and daughter, or teacher and student. Each identity generates some of what is variously called self-evaluation, self-esteem, self-worth, self-efficacy, and so on. In the variant associated with Stryker (Stryker 1968, 1980, 2001; Stryker and Serpe 1982), the identities are arranged in a salience hierarchy, such that the greater the salience, “the greater the probability of behavioral choices in accord with the expectations attached to that identity” (Stryker and Burke 2000:286). Further, an identity’s salience is itself shaped by “commitment to the role relationships requiring that identity” (Stryker and Burke 2000:286). Salience in identity theory parallels development of the relative importance of goods and the individual’s choice of valued goods in justice theory and status theory (Jasso 1980, 1981, 1987, 2001c). In the variant associated with Burke (Burke 1991; Burke and Reitzes 1991; Burke and Stets 1999), each identity is internalized, becoming a standard against which perceived self- meanings are compared; the outcome of the comparison process is “self-verification” and, depending on the sign and magnitude of the discrepancy between the identity standard and perceived self-meanings, leads both to emotion, which signals a discrepancy, and to behavior aimed at eliminating the discrepancy (Stryker and Burke 2000:288). In this way, behavior is “goal-directed”, and the individual has agency (Stryker and Burke 2000:288).13 Both quantitative and qualitative characteristics operate in sociological identity theory. 32 Personal quantitative characteristics operate in two ways. First, some of the role-related phenomena at the heart of an identity – competence, skill, performance – are themselves personal quantitative characteristics. Second, though the identities are largely role-related, sociological identity theory also accommodates the possibility that identities are based on more generalized quantitative characteristics, including both ordinal characteristics like “honesty” (Stryker and Burke 2000:293) and cardinal characteristics like income, wealth, and other material resources (Burke 1997; Stets and Burke 2000). Personal qualitative characteristics operate in sociological identity theory in a variety of ways – for example, when a role is based on occupation, when an identity process is investigated in a particular group, or when in a commitment process individuals label themselves as belonging to a particular group or subgroup. Finally, as noted, each identity generates some of what is variously called self-evaluation, self-esteem, self-worth, self-efficacy, etc. (Stryker 1980, 2001; Stets and Burke 2000). Thus, sociological identity theory, in both its major variants, has at its core the three elements of a sociobehavioral force: (1) personal quantitative characteristics, in the form of role- related skills, competence, performance, as well as other ordinal and cardinal characteristics such as honesty and wealth; (2) personal qualitative characteristics, such as membership in groups or networks within which identity processes occur; and (3) primordial sociobehavioral outcomes, such as self-esteem, self-efficacy, self-verification, self-worth, and status. Stryker and Burke (2000:291-292), building on Stets and Burke (1996) and Stets (1997), also take several steps to explicitly link sociological identity theory to status theory. First, they observe that receiving status aids in self-verification, prompting the reciprocal according of status. Second, they note that, absent information about particular individuals’ skills and 33 competence (i.e., their identities), information about previous status allocations will be used, paralleling the inter-subgroup conflict mechanism proposed by Jasso (1983b, 1993a), the status construction process proposed by Ridgeway (1991, 1997b, 2001), the S3 status function proposed by Jasso (2001c), and the depersonalization mechanism of social identity theory (Hogg, Terry, and White 1995), which impute to individuals the characteristics of their subgroups. Note that sociological identity theory, because it accommodates several PSOs, is compatible with operation of all three of the sociobehavioral forces. 4.3.2. Social Identity Theory Social identity theory, which here we take as encompassing the more recent development known as social categorization theory, focuses on group and intergroup processes and relations (Tajfel 1974; Tajfel and Turner 1979, 1986; Turner 1985, 1999; Turner et al. 1987). As in sociological identity theory, the self is conceptualized as a collection of identities; however, in this case, the identities highlight membership in a social category: “The basic idea is that a social category (e.g., nationality, political affiliation, sports team) into which one falls, and to which one feels one belongs, provides a definition of who one is in terms of the defining characteristics of the category – a self-definition that is a part of the self-concept” (Hogg et al. 1995:259). Each of these social identities confers self-enhancement (Hogg et al. 1995:260), contributes to self- conceptualization (Hogg et al. 1995:262), and generates self-esteem (Hogg et al. 1995:263), self- image (Brown 1986:551), and status (Hornsey and Hogg 2002). These social identities crucially shape a variety of further behavioral phenomena, in particular, intergroup behavior (Hogg et al.1995; Hornsey and Hogg 2002; Ellemers et al. 2002) Though the emphasis is on the qualitative characteristics which generate the subgroups or social categories with which social identities are associated – gender, race, religion, language, 34 etc. – quantitative characteristics also play a part. Quantitative characteristics are the characteristics with respect to which the subgroups or categories differ. For example, Hogg et al. (1995:260) provide an example in which men and women differ on aggressiveness; and Spears et al. (1997) discuss intelligence and creativity. When two or more categories of a qualitative characteristic differ on a quantitative characteristic, several further processes are set in motion. The first is depersonalization (Hogg et al. 1995); here an individual comes to be seen as a member of a subgroup rather than as an individual -- that is, he or she is characterized by the subgroup average rather than by his/her own magnitude of a quantitative characteristic – paralleling, as already noted, the inter-subgroup conflict mechanism proposed by Jasso (1983b, 1993a), the status construction process proposed by Ridgeway (1991, 1997b, 2001), and the S3 status function proposed by Jasso (2001c). A man may be seen as aggressive to the same magnitude as the average for all men, even though he may actually be a Gandhi. Closely related to depersonalization is a train of further behaviors, including the individual’s decision whether to seek to be seen as an individual or instead accept the subgroup- based characterization. There is a contest between personal identity and social identity (Brown 1986; Stets and Burke 2000; Ellemers, Spears, and Doosje 2002), paralleling the contest between personal status and subgroup status in Jasso (2001c) and the contest between the Selfista, Subgroupista, and Groupista orientations in Jasso (2005, in press). Even when the correlation between a quantitative characteristic and a qualitative characteristic is not perfect, the subgroups or categories come to be seen as disjoint, partly as a result of a new process, termed accentuation. As Hogg et al. (1995:261) put it, “the category- accentuation process . . . highlights intergroup discontinuities.” The accentuation mechanism of 35 identity theory appears throughout the sociobehavioral sciences in a variety of guises – split labor markets (Bonacich 1972), consolidation (Blau1974:632), hierarchy and segmentation (Hechter 1978), cleavage (Jasso 1983b, 1993a), bifurcation (Ridgeway 1996, 1997, 2001), nonoverlapping subgroups (Jasso 2001a, 2005; Jasso and Kotz unpubl), complete disjuncture (Jasso 2005), as well as under the rubric of the associated mathematical and statistical operations, such as perfect association between a quantitative characteristic and a qualitative characteristic (Jasso 2001c) and censored subdistributions (Jasso 2005; Jasso and Kotz unpubl). Note that some terms are intimately linked with particular substantive topics; for example, “nonoverlapping subgroups” is the classical term in the decomposition operations of inequality analysis. Note also that even when the association between the quantitative characteristic and the qualitative characteristic is not perfect, by the Thomas Theorem (1928) the sociobehavioral effects of the complete- disjuncture case are set in motion. When two or more categories of a qualitative characteristic differ on several quantitative characteristics, each category or subgroup comes to be characterized by the representative (say, average) magnitude on each characteristic. The category’s configuration of representative magnitudes on several quantitative characteristics is known as the prototype. There are important dynamics in social identity theory, including intertemporal change in the representative magnitudes of quantitative characteristics in subgroups as well as individuals negotiating the processes of depersonalization and self-categorization (Hogg et al. 1995:261- 262). Meanwhile, the larger group also provides a social identity, sometimes termed the superordinate-level identity (Hornsey and Hogg 2002). Accordingly, there can be a three-way contest between personal identity, subgroup-level social identity, and superordinate-level social 36 identity, paralleling the contest between the Selfista, Subgroupista, and Groupista orientations and emergent subgroups examined in Jasso (2005, in press). Thus, social identity theory, like sociological identity theory, has at its core the three elements of a sociobehavioral force: (1) personal quantitative characteristics, observed in subgroups and at the superordinate level; (2) personal qualitative characteristics, which give rise to the subgroups or social categories which are the explicit focus; and (3) primordial sociobehavioral outcomes, such as self-enhancement, self-conceptualization, and self-esteem. Hogg et al. (1995) take several steps to explicitly link social identity theory to sociological identity theory, and below we build on their work and that of Stets and Burke (2000). They suggest, for example, the usefulness of confronting “self-categorization with social comparison processes specified by social identity theory and self-categorization with the cybernetic mechanism suggested by Burke” (Hogg et al. 1995:266). Moreover, they consider the links to status theory. Finally, as already noted, depersonalization and accentuation parallel mechanisms in both justice theory and status theory, and the contest between personal identity and subgroup identity closely parallels the contest between personal status and subgroup status analyzed in Jasso (2001c) and the more general three-way contest between Selfista, Subgroupista, and Groupista analyzed in Jasso (2005, in press). Note that, like sociological identity theory, social identity theory, because it accommodates several PSOs, is compatible with operation of all three sociobehavioral forces. * * * The foregoing summaries of identity, comparison, and status theories suggest that they share a common core of three elements, the elements of a sociobehavioral force: First, each theory involves a primordial sociobehavioral outcome – such as self-esteem, status, or the sense 37 of justice. Second, in each theory the PSO is generated with respect to personal quantitative characteristics – such as beauty, bravery, competence, or wealth. Third, in each theory personal qualitative characteristics provide both the groups within which the PSOs are generated and the subgroups that become important when quantitative characteristics differ across categories of a qualitative characteristic. Further, the summaries indicate that comparison theory and status theory are each theories of a sociobehavioral force, while identity theory is compatible with operation of all three sociobehavioral forces (comparison, status, power). To be sure, each theory emphasizes a different element or a different realization of an element. Yet none of the theories could survive without all three elements. The processes they describe require all three elements (except in the special case of comparison theory mentioned above in which a qualitative characteristic is not required). Of course, each theory may have a distinctive vocabulary, so that the elements and their realizations and the further processes go by different names. Table I provides a partial list of the terms used in the theories, classified by the element to which they correspond. Specificity varies across the cells of the table. For example, in some cells a generic term equivalent to the general element is provided – say, goods in the cells describing quantitative characteristics in comparison theory and status theory; other cells, however, contain the term for a realization of the general element – say, role competence in the cell describing quantitative characteristics in sociological identity theory. – Table I about here – We emphasize that the list is partial. A complete list would require inclusion of every single term used in every single article based on each theory. Nonetheless, the table makes vivid the presence of all three elements in all the theories. 38 Note that the cells corresponding to qualitative characteristics distinguish between subgroups, on the one hand, and groups, on the other hand, labeling groups “1" and subgroups “2". This is an area where terminology has not settled; for example, what we call group and subgroup correspond to what some authors call superordinate group and group, respectively. Finally, each of the theories generates new quantities and processes which can be seen to parallel each other. Here we highlight five: First, the salience hierarchy in sociological identity theory echoes the relative importance of goods and bads and the individual’s choice of goods and bads in justice and comparison theory and in status theory. Second, depersonalization in social identity theory parallels mechanisms in justice and comparison theory and in status theory which impute to individuals the characteristics of their subgroups (and groups, too, as in the Groupista orientation). Third, accentuation in social identity theory echoes similar processes in sociobehavioral theories, such as consolidation in Blau (1974:632), hierarchy and segmentation in Hechter (1978), cleavage in Jasso’s (1983b, 1993a) conflict model, and bifurcation in Ridgeway’s (1996, 1997, 2001) status construction theory, complete disjuncture in Jasso’s (2005) analysis of Selfistas, Subgroupistas, and Groupistas, and censoring in Jasso and Kotz’ (unpubl) analysis of personal inequality and subgroup inequality. Fourth, the ingroup-outgroup differential in social identity theory echoes the gap and distance between subgroups in comparison theory and status theory. Fifth, in all the theories, a new competition arises between characterizing a person by individual characteristics or by subgroup representative characteristics or by whole-group representative characteristics. 39 5. UNIFICATION SURPRISES IN THE WORLD BEYOND JUSTICE Unification Surprise 17 Partial Unification of Justice and Other Comparison Processes The examination of the foundations of justice, mentioned briefly above (Unification Surprise 9), led to the realization that justice is a special case of a larger set of comparison processes (Jasso 1990). As noted in Section 4.1, the hallmark of a comparison process is that the outcome is produced by the comparison of an actual holding of a good or bad to a comparison holding of that good or bad – a holding expected, desired, envisioned, or thought just – and that the actual and comparison holdings have opposite effects on the outcome. In a comparison process involving a good, as the actual holding increases, holding constant the comparison holding, the outcome increases; and as the comparison holding increases, holding constant the actual holding, the outcome decreases. In a comparison process involving a bad, as the actual holding increases, holding constant the comparison holding, the outcome decreases; and as the comparison holding increases, holding constant the actual holding, the outcome increases. Besides justice, other members of the class of comparison processes include self-esteem and relative deprivation. Examples of pairs of actual and comparison holdings include: actual and just earnings; actual and desired wealth; actual and envisioned knowledge of Greek. And an example of a comparison function, inspired by William James’ (1891) famous formulation of self-esteem, quoted above, and his reflections on learning Greek, would be: Self-esteem increases with knowledge of Greek, and decreases with desired knowledge of Greek. The unification is partial because justice extends to both self and other – ideas of justice and justice evaluations both about one’s own situation and the situation of others – while By symmetry, a PSO which increases at a decreasing rate with a good will decrease at14 an increasing rate with a bad; a PSO which increases at an increasing rate with a good will decrease at a decreasing rate with a bad; and a PSO which increases at a constant rate with a good will decrease at a constant rate with a bad. 40 processes like self-esteem cover only self. Figure 3 depicts the partial unification. Fuller exposition is found in Frequently Asked Question 12.1 in Jasso (2001a). – Figure 3 about here -- Unification Surprise 18 Partial Unification of Justice, Status, and Power This partial unification is achieved via two insights (Jasso in press): First, in the operation of justice, status, and power, the key function is a function of a quantitative variable; in the case of goods, the function is always an increasing function – for example, status increases with wealth, and so does power, and so does the justice evaluation. Second, there are in nature only three possible rates of change – increasing, decreasing, and constant. Thus, what gives each of these primordial sociobehavioral forces their uniqueness and character is the magical second derivative, and if the three forces are really distinct (and not merely the same force with different names), then they must each have a distinctive rate of change. The literature suggests that the justice evaluation increases at a decreasing rate with the actual reward of a good and that status increases at an increasing rate. Power, if truly distinct from justice and status, must therefore increase at a constant rate. In this unification, the three forces are members of a class in which a force increases with a good and decreases with a bad.14 Figure 4 provides diagrammatic representation of the new world of justice and beyond. – Figure 4 about here – A major payoff from this unification is that it enables assessment of the effects of Note that the distinction between ideas of justice and judgments of injustice, embedded15 in the four central questions of justice analysis and in the two fundamental quantities – the just reward and the justice evaluation -- paves the way to precise understanding of the components of the human sense of justice and thus of individuals with limited fairness faculties, including the fully justice-insensitive, who may be attuned to status and power but deaf to justice. 41 embracing one or another of the primordial sociobehavioral forces – comparison, status, power – thus generating a large new set of predictions not derivable from within any of the component theories. For example, within the component theories the key questions pertain to the individual’s choice of goods and groups (as in Jasso 1980, 1987), but now in the unified theory there is a third key question, concerning the individual’s choice of sociobehavioral force. To illustrate, in Unification Surprise 1 we saw the prediction that in a nonmaterialistic society conflict between warring subgroups is a decreasing function of the proportion in the disadvantaged subgroup, while in a materialistic society the relation between subgroup conflict and the proportion in the bottom subgroup can be increasing, decreasing, or nonmonotonic, depending on the form of the distribution of the valued material goods. That prediction can now be understood as a prediction for a society dominated by justice and comparison concerns. If the society is dominated by status concerns, the derived prediction is quite different, namely, that, regardless of the valued good, conflict between warring subgroups is always an increasing function of the proportion in the disadvantaged subgroup.15 Unification Surprise 19 Partial Unification of the Three Sociobehavioral Forces and Identity This unification arises from the insight that an identity contains the same three elements as each sociobehavioral force: a personal quantitative characteristic, a personal qualitative characteristic (such as race, gender, or nativity), and one of the three primordial sociobehavioral Aristotle’s incisive formulation can be traced to Plato’s (Republic, Book VIII) insight16 that “governments vary as the dispositions of men vary.” 42 outcomes which give each force its name (Jasso in press). Thus, the operation of each sociobehavioral force produces an identity; and the individual’s profile with the configuration of goods and groups and primordial sociobehavioral outcomes generates the collection of identities which gives each person a unique and distinctive personality. At group level, the configuration of the personal collections of identities gives the group its unique and distinctive culture. Two payoffs of this unification are (1) that it makes the component theories richer – to the theories of each of the three sociobehavioral forces, it gives the vocabulary and imagery of identity theory; and to identity theory it gives the mathematical structure of the theories of the sociobehavioral forces – and (2) that it provides a new, theory-derived way to precisely conceptualize and measure identities, something previously lacking (Brown 1986:551). Unification Surprise 20 Partial Unification of Three-Sociobehavioral-Forces-cum-Identity and Happiness This unification is achieved because the operation of each sociobehavioral force also produces a magnitude of happiness or unhappiness (Jasso in press). The new unified theory thus brings to life a key insight of Plato and Aristotle, in Aristotle’s (Politics, Book 7, Chapter 8) words: "Different men seek after happiness in different ways and by different means, and so make for themselves different modes of life and forms of government." The new theory16 formalizes the “different ways and ... different means” of seeking happiness by the operation of three sociobehavioral forces, in which the primordial sociobehavioral outcomes which give each force its name (status, power, or justice) are generated by distinctive mechanisms from personal quantitative characteristics (such as beauty and wealth) within groups formed by categories of 43 personal qualitative characteristics (such as nativity, race, and gender). A payoff of this unification is that it clarifies previous discrepancies in specifications of happiness: all the specifications (as a comparison process or not; as concave, convex, or linear) are correct, each corresponding to one of the component PSOs, each with its own periods of salience and latency. The unification is partial because happiness is also produced outside the sociobehavioral world, for example, by a sunset or the nuts and figs on a tree. Unification Surprise 21 Partial Unification of Three-Sociobehavioral-Forces/Identity/Happiness and Other Terms and Ideas This is an ongoing unification. With every passing week, new terms and ideas are brought under the umbrella of the new unified theory. To illustrate: 1. All the unification surprises display unification of classical and contemporary ideas, classical and contemporary theories. Unification of justice and the other comparison processes would not have been possible without the work of Marx, Durkheim, and James. Unification of the three sociobehavioral forces and happiness would not have been possible without the fundamental reasonings of Plato and Aristotle. 2. Every process discussed in this paper, from the tiny elements embedded in subscripts to the large operation of the sociobehavioral forces, triggers emotion. The coming years will see links far more systematic than the ones currently visible. But already there are some challenges on the horizon. Jasso (2006a) argues that the valence of the triggered emotion must be the same as the sign of the PSO or the change-in-PSO – implying that, among other things, status alone never produces a negative emotion (only change in status can produce a negative emotion) and a 44 justice evaluation of perfect justice is accompanied by completely neutral affect (rather than the positive affect often conjectured). Turner (2007) seeks to find correspondence between exact, particular emotions and the source of each just reward – for example, plucked from a previous or envisioned self, or from a neighbor, or from a distribution. 3. The new unified theory enables explicit contrast between the three fundamental sociobehavioral forces – what each requires and what each forbids. For example, it can be shown that loss aversion is an exclusive property of the justice and comparison force; loss aversion arises only when the sociobehavioral force has a negative second derivative (with respect to the good which generates it) and thus individuals and societies motivated only be status or power will not experience loss aversion. Similarly, inequality aversion (Unification Surprise 11) may also be an exclusive property of the fairness force; in this case there is not yet a proof but eery sign points in that direction. It is straightforward to establish that inequality aversion cannot arise in status processes, given that status is a function of relative ranks alone and hence blind to inequality in the good’s distribution (while generating its own new inequality of status (Jasso and Kotz in press). Further, it appears that power also cannot lead to inequality aversion, though there is not yet conclusive proof. If inequality aversion joins loss aversion as an exclusive property of the justice force, then the presence of loss aversion can be taken as evidence that the justice sociobehavioral force is at work. 4. The intriguing recent work on internalized oppression (Bourdieu 1997; Ridgeway 1997a:222; Stanton-Salazar 1997) finds precise expression in the new unified theory – via developments in status theory (Jasso 2001c) -- and so does the equally intriguing recent work on group boundaries and their permeability (Brubaker and Cooper 2000; Eder and Giesen 2001; Eisenstadt and Giesen (1995); Ellemers, Spears, and Doosje 2002; Giesen ([1993] 1998); Lamont 45 and Molnár 2002) and on bonding and bridging phenomena (Putnam 2000) – via the new distinction between pre-existing subgroups and emergent subgroups (Unification Surprise 16) and the contest between Selfista, Subgroupista, and Groupista orientations (Jasso 2005, in press). The hallmark of the new unified theory is, in the words of Samuel Smiles (1875): “A place for everything, and everything in its place.” In the years ahead, unimaginable new surprises – not only in theoretical unification but also in empirical verification – will bring rich new understanding of the worlds of justice and beyond. 47 REFERENCES Allen, R. G. D. (1938). Mathematical Analysis for Economists. St. Martin’s Press, New York. Aristotle. [384-322 BC] 1952. The Works of Aristotle. 2 volumes. Translated by W. D. Ross. Britannica Press, Chicago. Atkinson, A. B. (1970). On the Measurement of Inequality. Journal of Economic Theory 2:244-263. Atkinson, A. B. (1975). The Economics of Inequality. Oxford University Press, London. Baldwin, J. M. (1889-1891). Handbook of Psychology. 2 volumes. Holt, New York. Berger, J., Cohen, B. P., and Zelditch, Jr. M. (1966). Status Characteristics and Expectation States. In J. Berger, M. Zelditch, Jr., and B. Anderson (eds.), Sociological Theories in Progress, Volume 1, Houghton Mifflin, Boston, pp. 29-46. Berger, J., Fisek, H., Norman, R., and Zelditch Jr. M. (1977). Status Characteristics and Social Interaction: An Expectation States Approach. Elsevier, New York. Berger, J., Zelditch, Jr. M., Anderson, B., and Cohen, B. P. (1972). Structural Aspects of Distributive Justice: A Status-Value Formulation. In J. Berger, M. Zelditch, and B. Anderson (eds.), Sociological Theories in Progress, Volume 2, Houghton Mifflin, Boston, pp. 119-246. Bernoulli, D. [1738] (1954). Exposition of a New Theory on the Measurement of Risk. Econometrica 22:23-36. From the Latin, Specimen theoriae novae de mensura sortis" Blau, P. M. (1964). Exchange and Power in Social Life. Wiley, New York. Blau, P. (1974). Presidential Address: Parameters of Social Structure. American Sociological Review 39:615-635. Blau, P. (1977a). Inequality and Heterogeneity. Free Press, New York. 48 Blau, P. (1977b). A Macrosociological Theory of Social Structure. American Journal of Sociology 83:26-54. Bonacich, E. (1972). “A Theory of Ethnic Antagonism: The Split Labor Market.” American Sociological Review 37:547-559. Bose, Ch. E., and Rossi, P. H. (1983). Gender and Jobs: Prestige Standings of Occupations as Affected by Gender. American Sociological Review 48:316-330. Bourdieu, P. (1997). Masculine Domination Revisited. The Goffman Prize Lecture. Translated and edited by Loic Wacquant. Berkeley Journal of Sociology 41:189-203. Brickman, Ph., Folger, R., Goode, E., and Schul, Y. (1981). Micro and Macro Justice. in M. J. Lerner and S. C. Lerner (eds.), The Justice Motive in Social Behavior, Plenum, New York, pp. 173-202. Brown, R. (1986). Social Psychology: The Second Edition. Free Press, New York. Brubaker, R., and Cooper, F. (2000). Beyond ‘Identity’. Theory and Society 29:1-47. Burke, P. J. (1991). Identity Processes and Social Stress. American Sociological Review 56:836-849. Burke, P. J. (1997). An Identity Model for Network Exchange. American Sociological Review 62:134-150. Burke, P. J., and Reitzes, D. C. (1991). An Identity Theory Approach to Commitment. Social Psychology Quarterly 54:239-251. Burke, P. J., and Stets, J. E. (1999). Trust and Commitment Through Self-Verification. Social Psychology Quarterly 62:347-366. Chipman, J. S., and Moore, J. C. (1980). Real National Income with Homothetic Preferences and a Fixed Distribution of Income. Econometrica 48:401-422. 49 Durkheim, É. (1893) (1964). The Division of Labor in Society. Translated by George Simpson. Free Press, New York. Eder, Kl., and Giesen, B. (2001). Introduction and Conclusion. In Kl. Eder and B. Giesen (eds.), European Citizenship: National Legacies and Transnational Projects, Oxford, London, UK. Ellemers, N., Spears, R., and Doosje, B-J. (2002). Self and Social Identity. Annual Review of Psychology 53:161-186. Eisenstadt, S. N., and Giesen, B. (1995). The Construction of Collective Identity. Archive Européenne de Sociologie 36:75-102. Fararo, Th. J., and Skvoretz, K. (2002). In J. Berger and M. Zelditch, Jr. (eds.), New Directions in Contemporary Sociological Theory, Rowman and Littlefield Press, Boulder, CO, pp. 295-316. Fechner, Gustav Theodor. [1860] (1907). Elemente der Psychophysik. Two Volumes. Breitkopf and Härte, Leipzigl. Festinger, Leon. (1954). A Theory of Social Comparison Processes. Human Relations 7:117- 140. Giesen, B. [1993] (1998). Intellectuals and the Making of the German Nation: Collective Identity in an Axial Age. Translated from the German (Die Intellectuellen und die Nation) by Nicholas Levis and Amos Weisz. Cambridge, New York. Goode, W. J. (1978). The Celebration of Heroes: Prestige as a Control System. University of California Press, Berkeley, CA. Hechter, M. (1978). “Group Formation and the Cultural Division of Labor.” American Journal of Sociology 84:293-318. 50 Hogg, M. A., Terry, D.J., and White, K. M. (1995). A Tale of Two Theories: A Critical Comparison of Identity Theory with Social Identity Theory. Social Psychology Quarterly 58:255-269. Homans, G. C. (1961) (1974). Social Behavior: Its Elementary Forms. Revised Edition. Harcourt, Brace, Jovanovich, New York. Homans, G. C. (1976). Commentary. In L. Berkowitz and E. Walster (eds.), Advances in Experimental Social Psychology, vol. 9, Academic Press, New York, pp. 231-44. Hornsey, M. J., and. Hogg, M. A.( 2002). The Effects of Status on Subgroup Relations. British Journal of Social Psychology 41:203-218. Humphreys, P., and Berger, J. (1981). Theoretical Consequences of the Status Characteristics Formulation. American Journal of Sociology 86:953-983. Hyman, H. H. (1968). Reference Groups. In D. L. Sills (ed.), International Encyclopedia of the Social Sciences, Volume 13, Macmilla,: New York, pp. 353-361. James, W. (1891) (1952). The Principles of Psychology. Britannica, Chicago. Jasso, G., and Ross, P. H. (1977). Distributive Justice and Earned Income. American Sociological Review 42:639-651. Jasso, G. (1978). On the Justice of Earnings: A New Specification of the Justice Evaluation Function. American Journal of Sociology 83:1398-1419. Jasso, G. (1980). A New Theory of Distributive Justice. American Sociological Review 45:3-32. Jasso, G. (1981). Further Notes on the Theory of Distributive Justice (Reply to Sotan). American Sociological Review 46:352-360. Jasso, G. (1982). Measuring Inequality by the Ratio of the Geometric Mean to the Arithmetic Mean. Sociological Methods and Research 10:303-326. 51 Jasso, G. (1983a). Fairness of Individual Rewards And Fairness of the Reward Distribution: Specifying the Inconsistency between the Micro and Macro Principles of Justice. Social Psychology Quarterly 46:185-199. Jasso, G. (1983b). Social Consequences of the Sense of Distributive Justice: Small-Group Applications. Jasso, G. In D. M. Messick and K. S. Cook (eds.), Theories of Equity: Psychological and Sociological Perspectives, Praeger, New York, pp 243-294. Jasso, G. (1987). Choosing a Good: Models Based on the Theory of the Distributive-Justice Force. Advances in Group Processes: Theory and Research 4:67-108. Jasso, G. (1988). Principles of Theoretical Analysis. Sociological Theory 6:1-20. Jasso, G. (1989). The Theory of the Distributive-Justice Force in Human Affairs: Analyzing the Three Central Questions. In J. Berger, M. Zelditch, Jr., and B. Anderson (eds.), Sociological Theories in Progress: New Formulations, Sage, Nabberu Park, CA, pp. 354-387. Jasso, G. (1990). Methods for the Theoretical and Empirical Analysis of Comparison Processes. Sociological Methodology 20:369-419. Jasso, G. (1991). Cloister and Society: Analyzing the Public Benefit of Monastic and Mendicant Institutions. Journal of Mathematical Sociology 16:109-136. Jasso, G. (1993a). Analysing Conflict Severity: Predictions of Distributive-Justice Theory for the Two-Subgroup Case. Social Justice Research 6:357-382. Jasso, G. (1993b). Choice and Emotion in Comparison Theory. Rationality and Society 5:231 -274. Jasso, G. (1996). Exploring the Reciprocal Relations between Theoretical and Empirical Work: The Case of the Justice Evaluation Function (Paper in Honor of Robert K. Merton). 52 Sociological Methods and Research 24:253-303. Jasso, G. (1998). Exploring the Justice of Punishments: Framing, Expressiveness, and the Just Prison Sentence. Social Justice Research 11:397-422. Jasso, G. (1999). How Much Injustice Is There in the World? Two New Justice Indexes. American Sociological Review 64:133-168. Jasso, G. (2001a). Comparison Theory. In J. H. Turner (ed.), Handbook of Sociological Theory, Kluwer Academic/Plenum Press, New York, pp. 669-698. Jasso, G. (2001b). Formal Theory. In J. H. Turner (ed.), Handbook of Sociological Theory, Kluwer Academic/Plenum Press, New York, pp. 37-68. Jasso, G. (2001c). Studying Status: An Integrated Framework. American Sociological Review 66:96-124. Jasso, G. (2004). The Tripartite Structure of Social Science Analysis. Sociological Theory 22:401-431. Jasso, G. (2005). Culture and the Sense of Justice: A Comprehensive Framework for Analysis. Journal of Cross Cultural Psychology 13:14-47. Jasso, G. (2006a). Emotion in Justice Processes. In J. E. Stets and J. H. Turner (eds.), Handbook of the Sociology of Emotions, Springer, New York, pp. 321-346. Jasso, G. (2006b). Factorial Survey Methods for Studying Beliefs and Judgments. Sociological Methods and Research 34:334-423. Jasso, G. (2006c). Homans and the Study of Justice. In A. J. Treviño (ed.), George C. Homans: History, Theory, and Method, Paradigm Press, Boulder, CO, pp. 203-227. Jasso, G. (In press). A New Unified Theory of Sociobehavioral Forces. European Sociological Review . 53 Jasso, G, and Kotz, S. (2007). A New Continuous Distribution and Two New Families of Distributions Based on the Exponential. Statistica Neerlandica 61:. Jasso, G, and Kotz, S. (Unpubl). Two Types of Inequality: Inequality Between Persons and Inequality Between Subgroups. Presented at the biennial meeting of the International Society for Justice Research, Berlin, Germany, August 2006. Jasso, G, and Wegener, B. (1997). Methods for Empirical Justice Analysis: Part I. Framework, Models, and Quantities. Social Justice Research 10:393-430. Jasso, G, and Wegener, B. (1999). Gender and Country Differences in the Sense of Justice: Justice Evaluation, Gender Earnings Gap, and Earnings Functions in Thirteen Countries. International Journal of Comparative Sociology 40:94-116. Lamont, M., and Molnár, V. (2002). The Study of Boundaries in Social Science. Annual Review of Sociology 28:167-195. Lipset, S. M. (1968). Stratification, Social: Social Class. In D. L. Sills (ed.), International Encyclopedia of the Social Sciences, Volume 15, Macmillan, New York. Marx, K. (1849) (1968). Wage Labour and Capital. In Karl Marx and Frederick Engels: Selected Works. International Publishers, New York. Merton, R. K. (1957). Continuities in the Theory of Reference Groups and Social Structure. In R. K. Merton (ed.), Social Theory and Social Structure. Second edition, revised and enlarged, Free Press, New York. Merton, R. K., and Rossi, A.S. (1950). Contributions to the Theory of Reference Group Behavior. In R. K. Merton and P. Lazarsfeld (eds.), Continuities in Social Research: Studies in the Scope and Method of "The American Soldier", Free Press, New York, pp. 40-105. Reprinted as p. 225-280 in R. K. Merton, Social Theory and Social Structure. 54 Second edition, revised and enlarged. New York, Free Press. Nock, S. L., and Rossi, P. H. (1978). Ascription versus Achievement in the Attribution of Social Status. American Journal of Sociology 84:541-564. Plato. [c. 428-348/7 BC] (1952). The Dialogues of Plato. Translated by Benjamin Jowett. Britannica: Chicago. Putnam, R. D. (2000). Bowling Alone: The Collapse and Revival of American Community. Simon and Schuster, New York. Ridgeway, C. L. (1991). The Social Construction of Status Value: Gender and Other Nominal Characteristics. Social Forces 70:367-86. Ridgeway, C. L. (1997a). The Conservation of Gender Inequality. American Sociological Review 62:218-35. Ridgeway, C. L. 1997b. Where Do Status-Value Beliefs Come From? New Developments. In J. Szmatka, J. Skvoretz, and J. Berger (eds.), Status, Network, and Structure, Stanford University Press, Standfort, CA. Ridgeway, C. L. (2001). Inequality, Status, and the Construction of Status Beliefs. In J. H. Turner (ed.), Handbook of Sociological Theory, Kluwer Academic/Plenum Press, New York, pp. 323-340. Ridgeway, C. L., and Balkwell, J. (1997). Group Processes and the Diffusion of Status-Beliefs. Social Psychology Quarterly 60:14-31. Roosevelt, T. (1913). History As Literature, And Other Essays. Kennikat Press, Port Washington, NY. Rossi, P. H., Simpson, J. H., and Miller, J-A. (1985). Beyond Crime Seriousness: Fitting the Punishment to the Crime. Journal of Quantitative Criminology 1:59-90. 55 Runciman, W. G. (1961). Problems of Research on Relative Deprivation. Archives Européennes de Sociologie 2:315-323. Sampson, W. A., and Rossi, P. H. (1975). Race and Family Social Standing. American Sociological Review 40:201-214. Sennett, R. (2003). Respect in a World of Inequality. Norton, New York. Sherif, M. (1968). Self Concept. In D. L. Sills (ed.), International Encyclopedia of the Social Sciences, Volume 14, Macmillan, New York. Smiles, S. (1877). Thrift. John Murray, London, UK. Soltan, K. E. (1981). Jasso on Distributive Justice (Comment on Jasso, ASR, February 1980. American Sociological Review 46:348-352. Sörensen, A. B. (1979). A Model and a Metric for the Analysis of the Intragenerational Status Attainment Process. American Journal of Sociology 85:361-84. Spears, R., Doosje, B-J., and Ellemers, N. (1997). Self-Stereotyping in the Face of Threats to Group Status and Distinctiveness: The Role of Group Identification. Personality and Social Psychology Bulletin 23:538-553. Stanton-Salazar, R. D. (1997). A Social Capital Framework for Understanding the Socialization of Racial Minority Children and Youths. Harvard Educational Review 67:1-40. Stets, J. E. (1997). Status and Identity in Marital Interaction. Social Psychology Quarterly 60:185-217. Stets, J. E., and Burke, P. J. (1996). Gender, Control, and Interaction. Social Psychology Quarterly 59:193-220. Stets, J. E., and Burke, P. J. (2000). Identity Theory and Social Identity Theory. Social 56 Psychology Quarterly 63:224-237. Stets, J. E., and Burke,. P. J. (2002). A Sociological Approach to Self and Identity. In M. Leary and J. Tangney (eds.), Handbook of Self and Identity, Guilford Press, New York, pp. 128- 152. Stevens, S. S. (1975). Psychophysics: an Introduction to Its Perceptual, Neural, and Social Prospects. Wiley, New York. Stouffer, S. A., et al. (1949). The American Soldier. Two volumes. Studies in Social Psychology in World War II. Princeton University Press, Princeton. Stryker, S. (1968). Identity Salience and Role Performance. Journal of Marriage and the Family 4:558-564. Stryker, S. (1980). Symbolic Interactionism: A Social Structural Version. Benjamin Cummings, Menlo Park. Stryker, S. (2001). Traditional Symbolic Interactionism, Role Theory, and Structural Symbolic Interactionism: The Road to Identity Theory. In J. H. Turner (ed.), Handbook of Sociological Theory, Kluwer Academic/Plenum Press, New York, pp. 211-231. Stryker, S, and Burke P. J. (2000). The Past, Present, and Future of an Identity Theory. Social Psychology Quarterly 63:284-297. Stryker, S., and Serpe, R. T. (1982). Commitment, Identity Salience, and Role Behavior: A Theory and Research Example. In W. Ickes and E. S. Knowles (eds.), Personality, Roles, and Social Behavior, Springer-Verlag, New York, pp. 199-218. Tajfel, H. (1974). Social Identity and Intergroup Behavior. Social Science Information 13:65-93. Tajfel, H., and Turner, J. C. (1979). An Integrative Theory of Intergroup Conflict. In W. G. 57 Austin and S. Worchel (eds.), The Social Psychology of Intergroup Relations, Brooks-Cole, Monterey, pp. 33-47. Tajfel, H., and Turner, J. C. (1986). The Social Identity Theory of Intergroup Behavior. In S. Worchel and W. G. Austin (eds.), The Psychology of Intergroup Relations, Nelson-Hall, New York, pp. 7-24. Theil, H. (1967). Economics and Information Theory. Amsterdam, North-Holland. Thibaut, J. W., and Kelley, H. H. (1959). The Social Psychology of Groups. Wiley, New York. Thomas, W. I., and D. S. Thomas. (1928). The Child in America: Problems and Programs. New York: Knopf. Törnblom, K. Y. (1988). Positive and Negative Allocations: A Typology and a Model for Conflicting Justice Principles. Advances in Group Processes 5:141-168. Törnblom, K. Y., and Jonsson, D. R. (1985). Subrules of the Equality and Contributions Principles: Their Perceived Fairness in Distribution and Retribution. Social Psychology Quarterly, 48:249-261. Törnblom, K. Y., and Vermunt, R. (1998). Introduction: The Relationship Between Positive and Negative Resource Allocations and How They Affect Our Justice Conceptions. Social Justice Research 11:377-380. Törnblom, K. Y., Vermunt, R. (eds.) (1998). Special issue on Fairness Conceptions in the Contexts of Positive and Negative Resource Allocations: Part I. Social Justice Research 11:377-442 Törnblom, K. Y., Vermunt, R. (1999). An Integrative Perspective on Social Justice: Distributive And Procedural Fairness Evaluations of Positive and Negative Outcome Allocations. Social Justice Research 12:39-64. 58 Turner, J. C. (1985). Social Categorization and the Self-Concept: A Social Cognitive Theory of Group Behavior. Advances in Group Processes 2:77-122. Turner, J. C. (1999). Some Current Issues in Research on Social Identity and Self-Categorization Theories. in N. Ellemers, R. Spears, and B. Doosje (eds.), Social Identity: Context, Commitment, Content, Blackwell, Oxford, UK, pp. 6-34. Turner, J. C., Hogg, M. A., Oakes, P. J., Reicher, S. D., and Wetherell, M. S. 1987. Rediscovering the Social Group: A Self-Categorization Theory. Oxford, UK, Blackwell. Turner, J. H. (1984). Societal Stratification: A Theoretical Analysis. Columbia University Press, New York. Turner, J. H. (1995). Macrodynamics: Toward a Theory on the Organization of Human Populations. ASA Rose Monograph Series. Rutgers University Press, New Brunswick, NJ Turner, J. H. (2007). Justice, Injustice, and Emotional Arousal. Social Justice Research Wagner, D., and Berger, J. (1985). Do Sociological Theories Grow? American Journal of Sociology 90:697-728. Webster, M. Jr., and Hysom, S. J. (1998). Creating Status Characteristics. American Sociological Review 63:351-78. Whitmeyer, J. M. (2004). Past and Future Applications of Jasso’s Justice Theory. Sociological Theory 13:432-444. Wright, G. H. von (1963). The Varieties of Goodness. Routledge and Kegan Paul, London. Zelditch, M. Jr. (1968). Status, Social. In D. L. Sills (ed.), International Encyclopedia of the Social Sciences, Volume 15, Macmillan, New York. Table I. Partial List of Terms Used in Three Sociobehavioral Theories for Elements in the Common Core Elements in the Common Core Theories Identity Comparison StatusSociological Identity Theory Social Identity Theory Quantitative Characteristics resources role competence role enactment role performance attribute characteristic dimension goods cardinal ordinal goods cardinal ordinal Qualitative Characteristics 1. society 2. attribute group master status network social category 1. superordinate category/group 2. group social category subgroup 1. comparison aggregate group social aggregate 2. subgroup 1. group 2. subgroup Primordial Sociobehavioral Outcomes (PSO) self-concept self-efficacy self-esteem self-evaluation self-meaning self-verification self-worth status self-conceptualization self-enhancement self-esteem status justice evaluation self-esteem self-worth deference esteem honor prestige respect status Notes: Cell entries include some of the terms used in the theories to refer to the three elements in the common core. Cell entries corresponding to qualitative characteristics include terms referring to both characteristics and subgroups and are subdivided into terms used to refer to the group (listed under “1") and terms used to refer to the subgroups (listed under “2"). Happiness terms – such as happiness, satisfaction, well-being – sometimes appear in the role of PSO, consistent with the view in the unified theory that the three sets of PSOs – comparison, status, power – generate happiness. Figure 1. Unification Links Between Theories Theory 1 Theory 2 Postulates Postulates _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ Predictions Predictions _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ _________________________________ Fig 2. The World of Distributive Justice Actual Reward Just Reward Justice Evaluation Reactions to Injustice Figure 3. Justice Is a Special Case of Comparison Processes, But, Unlike the Sibling Comparison Processes, It Covers Other as Well as Self Justice Comparison Processes Figure 4. The New World of Justice and Beyond Justice Power All Domains of Behavior Status Jasso-Unification-2007-02-16-SJR-submission.pdf Jasso-Unification-PowerPoint-2006.pdf Fig 2. The World of Distributive Justice Figure 3. Justice Is a Special Case of Comparison Processes,�But, Unlike the Sibling Comparison Processes, It Covers Other as Figure 4. The New World�of Justice and Beyond 
work_yjy4gpsfpjhrvf2yhjf2wcxf2m	----	Ethics & Global Politics: Vol 14, No 1 Log in  |  Register Cart Home All Journals Ethics & Global Politics List of Issues Volume 14, Issue 1 Ethics & Global Politics An open access journal Publishes research on ethics and global politics, exploring environmental protection, policy development, poverty, technology and knowledge, migration and more. Search in: This Journal Anywhere Advanced search Submit an article New content alerts RSS Citation search Citation search Current issue Browse list of issues Explore Top About this journal Journal metrics Aims and scope Instructions for authors Journal information Editorial board News & offers Editorial policies Latest articles See all volumes and issues Volume 14, 2021 Vol 13, 2020 Vol 12, 2019 Vol 11, 2018 Vol 10, 2017 Vol 9, 2016 Vol 8, 2015 Vol 7, 2014 Vol 6, 2013 Vol 5, 2012-2013 Vol 4, 2011 Vol 3, 2010 Vol 2, 2009 Vol 1, 2008 Login or register to access this feature Have an account? Login nowDon't have an account? Register for free Register a free Taylor & Francis Online account today to boost your research and gain these benefits: Download multiple PDFs directly from your searches and from tables of contents Easy remote access to your institution's subscriptions on any device, from any location Save your searches and schedule alerts to send you new results Choose new content alerts to be informed about new research of interest to you Export your search results into a .csv file to support your research Register now or learn more Download citations Choose format RIS (ProCit, Reference Manager) BibTeX RefWorks Direct Export Download citations Download citations Download PDFs Browse by section (All) Display order (Default) Published online date Page number Section A-Z Most read Most cited Ethics & Global Politics, Volume 14, Issue 1 (2021) Issue In Progress Original Article Article What Kind of Functionings Matter for Global Justice for Children? Gottfried Schweiger Article: 1873576 Published online: 19 Jan 2021 Abstract | Full Text | References | PDF (318 KB) | Permissions  610Views 0CrossRef citations Altmetric Review Article review article Beyond lockdown? The ethics of global movement in a new era Guy Aitchison Published online: 04 Mar 2021 Abstract | Full Text | References | PDF (300 KB) | Permissions  563Views 0CrossRef citations Altmetric Explore Most read articles Most cited articles Multimedia Information for Authors Editors Librarians Societies Open access Overview Open journals Open Select Cogent OA Dove Medical Press F1000Research Help and info Help & contact Newsroom Commercial services Advertising information All journals Books Keep up to date Register to receive personalised research and resources by email Sign me up Taylor and Francis Group Facebook page Taylor and Francis Group Twitter page Taylor and Francis Group Linkedin page Taylor and Francis Group Youtube page Taylor and Francis Group Weibo page Copyright © 2021 Informa UK Limited Privacy policy Cookies Terms & conditions Accessibility Registered in England & Wales No. 3099067 5 Howick Place | London | SW1P 1WG Accept We use cookies to improve your website experience. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. By closing this message, you are consenting to our use of cookies. 
work_ykj3qh5ayjaizmovdk7jp4zzbm	----	Legal Information Management, 19 (2019), pp. 63–65 © The Author(s) 2019. Published by British and Irish Association of Law Librarians doi:10.1017/S1472669619000148 Janus-Faced Justice? The Role of Legal Technology in the Provision of Access to Justice Winner of the Best in category, Justis International Writing Competition 2019 for the category Access to Justice and Technology (in partnership with The City Law School), by Eleanor De of City, University of London. The move towards digitisation is a growing global trend and an inescapable reality. But so too is the increasing chasm between rights in law and rights enforced. The advent of legal technology presents exciting opportunities to bridge this gap, but it would be imprudent to assume that this is a symbiotic relationship, or that digitisation necessarily improves access to justice. New technologies could be used to improve transpar- ency, disseminate legal information, provide access to court decisions and reduce court backlog1 and in some places this potential has been realised. In the Netherlands, for instance, an online dispute resolution service (Rechtwijzer) has been developed to help users identify whether their problem involves legal issues, guide them through their rights and explain how to enforce them. This informs the user, empowers them and pro- vides actionable solutions to their problems, whilst also decreasing the burden on the courts and providing ease of access. However, preoccupation with cost-cutting and effi- ciency is an enormous barrier to improving access to justice through legal technology. This manifests in several ways. 1. In situations where legal technology might be the best way to increase access and participation, it might not be the most cost-effective option The Consultative Council of European Judges noted in an opinion on justice and information technologies that cost may be both an advantage and a disadvantage2. Costs are highly context-specific and it is a misconception that digitisation is necessarily cheaper. This sits at odds with the idea that technology, austerity and access to justice can happily co-exist, and may provide some explanation for the pattern of digitisation that has thus far emerged. By way of example, the highly lauded Civil Resolution Tribunal in British Columbia, Canada, was borne out of a report that argued that ‘court processes…often do not make sense or work for litigants’3. The driving force behind the Canadian reform, therefore, was concern for public access and although financial motivations were part of this, they played a subsidiary role. By contrast, Smith and Paterson note that ‘the English and Welsh government…is driven much more overtly by a need for savings’4. This may explain why the UK has been slower to adapt to changes in technology and why the bulk of work to date has been on the growth of a paper- less system. Other forms of innovation such as digitised public legal education or using technology to synchronise information sharing between services such as Her Majesty’s Courts and Tribunals Service (HMCTS), proba- tion and the NHS would require more investment and have, thus far, taken a back seat. 2. This can lead to a dichotomous approach Earlier this year, HMCTS launched a proposal for a number of court closures, justified on the basis that there is a need to invest in ‘wholly new, more convenient, fleeter routes to justice’5. This represents a risky binary approach, whereby governments assume that digitisation removes the requirement or demand for traditional face- to-face justice. In light of digital exclusion rates, it is imperative that digital services and traditional mediums are not seen as mutually exclusive. 63 3. The focus on costs results in a lack of consultation with service users which leads to provisions which are not shaped or informed by lived experience and user needs A common difficulty in the process of digitisation is a lack of consultation between state and citizen. Moreover, con- sultation is often retrospective (conducted after policy drafting), and fails engage in the kind of iterative process necessary of such a dialogue. This leads to practical problems. For instance, there are few opportunities to correct the misconception that the only people who are digitally excluded are those ‘Internet-deprived citizens [who are not] able or willing to use technology when it is first deployed’6. The most vulnerable people experience a multiplicity of issues including - but not limited to - homelessness, poverty, illiteracy and ill mental health. And it is these people who experience the most legal problems and do less about them. Insensitivity to the nuance of digital exclusion then manifests itself in the execution of digital services. For example, more robust consultation with interest groups might have pre- vented HMCTS from introducing an ‘opt-in’ system for the Assisted Digital programme (an inappropriate arrangement because many people are unable to make informed decisions about whether the online system is right for them)7. This is also evident in situations where digital services are implemented without the necessary individualised or emotional support. An Australian study reported that there is often an unhelpful focus on the mechanical dis- semination of information, regardless of how useful it might be8. Similarly, a UK government-produced info- graphic video on domestic violence was deemed patronis- ing and unhelpful by its intended audience9. In the criminal context, the use of live video link has been con- tentious, and using it to provide an interpreter for vul- nerable people who require an appropriate adult has been heavily criticised for failing to address user needs10. 4. The risk of a breakdown of trust between citizen and state People come into contact with legal services at times which are likely to be the most stressful in their lives. It is imperative, therefore, as Tickle notes, that govern- ments remain aware of the possibility of losing the critical quality of human judgment and the ways in which digital pathways can be anonymising and alienating11. After all, the legitimacy of the legal system hinges on the public’s trust and confidence in the system. In a civil setting, this may lead to further disengagement and in a criminal context, the misuse of technology could impact on recid- ivism rates; if there is perceived to be a dearth of proced- ural justice, trust may be eroded which can affect offenders’ cooperation with criminal justice institutions in the future. As long as cost-cutting remains the primary motivator for adopting new legal technologies it is impossible to guarantee improved access to justice. To enact meaningful change, it is essential that user needs are consulted throughout development and implementation, and that the increased drive towards digitisation does not diminish the procedural safeguards necessary for a fair hearing. Footnotes 1 Julinda Beqiraj and Lawrence McNamara “International Access to Justice: Barriers and Solutions”, Bingham Centre for the Rule of Law, October 2014. https://www.biicl.org/documents/365_2014_ibatokyo_beqirajmcnamara_internationalaccesstojusticebar- riersandsolutions.pdf?showdocument=1 (accessed 28th November 2018). 2 Dory Reiling, “Technology In Courts In Europe: Opinions, Practices And Innovations”, International Journal For Court Administration, June 2012 https://www.iacajournal.org/articles/10.18352/ijca.75/galley/57/download/ (accessed 28th November 2018). 3 Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil and Family Justice: A Roadmap for Change”, October 2013. http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf (accessed 28th November 2018). 4 Roger Smith and Alan Paterson, “Face to Face Legal Services and their Alternatives : Global Lessons from the Digital Revolution”, University of Strathclyde Prints, 2014 ,pg 7. https://www.publictechnology.net/articles/news/hmcts-consults-court-clo- sures-digitisation-programme-rolls (accessed 28th November 2018). 5 Ministry of Justice and HMCTS, “Fit for the future: transforming the Court and Tribunal Estate”, 18th January 2018, https:// consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/supporting_documents/hmctsstrategyapproach- consultation.pdf (accessed 30th November 2018). 6 B R Hough, “Let’s not make it worse: issues to consider in adopting new technology”, Harvard Journal on Law and Technology, Vol 26 No 1, Fall 2012, p266. 7 Paul Anders, “Transforming Justice”, Revolving Doors Agency, 10th February 2017 http://www.revolving-doors.org.uk/blog/trans- forming-justice (accessed 28th November 2018). 64 Eleanor De of City 8 R Hunter, C Banks and J Giddings, ‘Technology is the answer … what was the question: Services to Regional, Rural and Remote Clients’, p146, in P Pleasence, A Buck, N Balmer, “Transforming Lives: law and social process”, Legal Services Commission, 2007. 9 Roger Smith and Alan Paterson, “Face to Face Legal Services and their Alternatives : Global Lessons from the Digital Revolution”, 2014. 10 National Appropriate Adult Network, “Consultation Response DRAFT - Revised PACE Code C (Detention) 2016 Interpreters”, NAAN Policy, 2016 http://appropriateadult.org.uk/images/pdf/2016_CodeC_interpreter_response.pdf (accessed 30th November 2018). 11 Louise Tickle, “Online justice: why courts should explore emerging digital possibilities”, The Guardian, 16th January 2017 https://www.theguardian.com/public-leaders-network/2017/jan/16/online-justice-courts-explore-digital-possibilities (accessed 29th November 2018). Legal Information Management, 19 (2019), pp. 65–67 © The Author(s) 2019. Published by British and Irish Association of Law Librarians doi:10.1017/S147266961900015X Blurred Lines: Social Media in Armed Conflict Winner of the Best in category, Justis International Writing Competition 2019 for the category Social Media, Technology and the Law (in partnership with the Richmond Journal of Law & Technology), by Iphigenia Fisentzou of BPP. Technological advancements have revolutionised the social interactions of global society and in turn influenced the means and methods of warfare; increasing the involvement of civilians in hostilities, not only as victims but also as participants.1 Together with the involvement of multiple state and non-state actors, civilian participa- tion makes these modern conflicts all the more unpre- dictable, challenging inter alia the traditional notion of direct participation in hostilities established under inter- national law. SOCIAL MEDIA: A MODERN WEAPON The first ‘internet war’ in Kosovo witnessed the utilisa- tion of the internet for the advancement of military operations.2 Non-state actors, specifically terrorist organisations, were the first to harness social media net- works for the recruitment of followers, the dissemination of information and the gathering of intelligence.3 State and inter-state actors have also gradually embraced social media as platforms suited for military operations,4 effect- ively weaponising them through their adaptation and util- isation to ‘achieve “military” effects’.5 Social networking platforms (Facebook) and micro- blogging websites (Twitter) are examples of ‘social media’ enabling social interaction through the creation, collec- tion, sharing and delivery of user-generated content such as photographs and written posts.6 Information from social media sites has been used for cyber operations,7 as well as for the singling out and targeting of individuals believed to be linked with the opposing parties to a con- flict.8 “Open source intelligence” has proven instrumental for parties with no boots on the ground of the conflict,9 65 Blurred Lines 
work_yndwfxvj2bbjtivxkir3lj3dpa	----	HTIP_A_885814.dvi Theory Into Practice, 53:158–164, 2014 Copyright © The College of Education and Human Ecology, The Ohio State University ISSN: 0040-5841 print/1543-0421 online DOI: 10.1080/00405841.2014.885814 Colleen A. Capper Michelle D. Young Ironies and Limitations of Educational Leadership for Social Justice: A Call to Social Justice Educators In this article that reviews this special issue, we identify 5 ironies and limitations of educational leadership for social justice: (a) the meaning of inclusive practice, (b) the intersection of identity and difference, (c) the emphasis given to student achievement, (d) the lack of policy and practice coherence, and (e) the separation of superheroes from critical collaborative leadership. Although Colleen A. Capper is a professor in the Department of Educational Leadership and Policy Analysis at the University of Wisconsin-Madison and Michelle D. Young is a professor in the Curry School of Education at the University of Virginia. Correspondence should be addressed to Colleen A. Capper, Professor, School of Education, Educa- tional Leadership and Policy Analysis, University of Wisconsin-Madison, 270h Education Building, 1000 Bascom Mall, Madison, WI 53706. E-mail: capper@ education.wisc.edu. we discuss each issue separately, these concep- tions are interrelated and intersecting. We con- clude with a call to educators for social justice to change their work in several fundamental ways. W HAT DOES IT MEAN TO practice socially just educational leadership? The editors of this special issue take the position that socially just educational leadership must be inclusive. Op- erating from that value, we identify 5 ironies and limitations of educational leadership for social justice and draw on examples from this special issue to illustrate our points: (a) the meaning of inclusive practice, (b) the intersection of identity and difference, (c) the emphasis given to student achievement, (d) the lack of policy and prac- tice coherence, and (e) the separation of super- 158 Capper and Young Ironies and Limitations of Educational Leadership heroes from critical collaborative leadership. Al- though we discuss each issue separately, these conceptions are interrelated and intersecting. We conclude with a call to educators for social justice to change their work in several fundamental ways. Inclusion/Integration In this article, we use the terms inclusion and integration interchangeably, building on the definitions in this special issue. Theoharis and Causton (this issue) define inclusion as “students with disabilities being educated in the general education classroom and having full access to the general education curriculum, instruction, and peers with needed supports” (p. 83). Horsford defines integration based on Olgetree’s (2004) concept of moving beyond “mixing bodies” to “creating a new community founded on a new form of respect and tolerance” (p. 301) and Dr. Martin Luther King, Jr.’s definition of integration as “genuine, intergroup, interpersonal doing” and “the ultimate goal of our national community” (1962/1968, p. 118). Ironically, the concept of inclusion is not cen- tral in the educational leadership for social justice discourse; rather, it remains marginalized, ill de- fined, and undebated. Furthermore, it is typically applied only to students labeled with disabilities. Scholars have yet to explore the similarities and differences in the inclusion/integration of stu- dents of color, students who are linguistically di- verse; students labeled with a disability; students from low-income families, including those who experience homelessness; and students who are lesbian, gay, bisexual, or transgender (LGBT). Despite research showing the benefits of inte- gration, the push to segregate students continues. Examples extend from court directives requiring districts to dismantle integration plans based on race (Enyia, 2010) to parental pressure to create separate tracks for students labeled gifted (Worthy, 2010). Schools catering to a particu- lar population, such as alternative schools for academically underachieving learners, continue to proliferate (Foley & Pang, 2006). Response- to-intervention approaches—mandated by federal policy as a means of preventing the overidenti- fication of students for special education—often remove students from general education classes, thus increasing segregation, typically along race and class lines (Orosco & Klinger, 2010). Importantly, stories of success in closing achievement gaps between different student pop- ulations are often told with little or no ex- plicit consideration given to inclusion or inte- gration (Chenoweth, 2007, 2009; Chenoweth & Theokas, 2011; Education Trust, 2013). Only a few scholars draw a direct connection between the inclusion/integration of all students (beyond disability and race) and academic achievement (Capper & Frattura, 2008; Frattura & Capper, 2007; McKenzie et al., 2008; Theoharis, 2009). One irony of the scholarship of inclusive practices is relying on metaphors that may be exclusionary to describe these practices. For ex- ample, Ashby, Burns, and Royle draw on a het- eronormative metaphor (i.e., marriage) to ground their inclusion work. They frame the inclusion of students labeled with disabilities as a marriage between general and special education and simi- larly characterize the collaborative work between general and special educators. Their articulation of marriage relies upon examples of heterosexual marriage relationships. In so doing, these authors, regardless of intent, perpetuate heteronormativity, heterosexism, and the marginalization of LGBT individuals. In short, the inclusion/integration literature and practice can ironically exclude students yet remains uncontested in educational leadership for social justice. The Intersection of Identities and Differences A meta-analysis of the educational leadership for social justice literature would reveal some disappointing patterns. One would find much literature that focuses on specific student groups, such as race and social class (O’Malley & Capper, 2012); limited literature that discusses the implications of social justice leadership for LGBT identity or students from low-income 159 Inclusive Schooling and Leadership for Social Justice homes, including homeless students and individ- uals with disabilities (Capper & Green, 2013; Capper, Theoharis, & Sebastian, 2006; O’Malley, 2013); and a paucity of literature that examines the intersection of more than one student identity group (e.g., gender and homelessness, LGBT and race). The articles in this issue reveal such pat- terns. For example, Theoharis and Causton focus on ways to include students with disabilities. López and Iribarren describe a tripartite con- ceptual framework for addressing the needs of linguistically diverse students. Yet, students have multiple and intersecting identities and effec- tive practices for one area of difference can often be applied to other student differences. For example, López and Iribarren could discuss how their framework for linguistically diverse students could apply to students labeled with disabilities who struggle with language or for students of color and other cultural differences. Along similar lines, Horsford’s argument that educators become racially literate, might explain how her four stages (i.e., racial literacy, realism, reconstruction, and reconciliation) might unfold for other areas of difference and identity, such as ability, religion, sexuality, and gender. We do not argue that educators should never think about the needs of particular student differ- ences or the implications of specific student iden- tities for social justice leadership practice; how- ever, we do assert that more work to extend think- ing across student differences and their intersect- ing identities is needed. Consider the following questions: What if educators are racially literate (Horsford), but illiterate with sexuality, social class, gender, disability, religion (Marshall, this issue), and their intersections? If an educational leader is literate in one area, is that enough? According to Hernandez and Fraynd’s article in this special issue, it is not. These authors point out that youth of color perceived to be LGBT are more likely to commit suicide than White youth perceived to be LGBT; thus, knowing only about race or LGBT identity would not be enough to understand the pervasive homophobia in commu- nities of color (Ward, 2005), or White racism in the LGBT community (Han, 2007). In sum, leaders for social justice must consider how and to what extent promising practices in one area of diversity/difference might address the full range of student differences and their intersections. Achievement The field of educational leadership for social justice is significantly divided around the issue of achievement. McKenzie and colleagues (2008) argued that achievement matters and should be a core goal in socially just schools. Furman and Gruenwald (2004) however, believed that academic achievement is overemphasized to the detriment of other benefits of schooling, and Shields (2013) decentered the role of achieve- ment in the work of transformational leaders. Other social justice scholars have argued that the perseveration on high-stakes achievement testing and resulting prescriptions for teacher practice not only undermine teacher professionalism, but they also impede social justice work (Anderson, 2009; Kumashiro, 2012). On rare occasion (e.g., the Miller, Pavlakis, Lac, and Hoffman piece in this special issue), scholars take a both/and approach. Theoharis and Causton are clear that when students with disabilities are included, they learn and achieve at higher levels. Several articles in this issue, however, do not address achievement in their description of inclusive, social justice practices. Ashby, Burns, and Royle, for example, describe how one school district implemented a federal Reading First program. Through this work, the school decreased the number of stu- dents labeled with disabilities; however, the au- thors did not report the results of the school’s efforts to improve reading achievement. Simi- larly, although research has found that LGBT students who feel safer in school have higher grade point averages and higher educational as- pirations compared to LGBT students who ex- perience more victimization (Kosciw, Greytak, Bartkiewicz, Boesen, & Palmer, 2012), Hernan- dez and Fraynd do not address this in their article. Similarly, in their review of one state’s ini- tiatives to address achievement gaps and the 160 Capper and Young Ironies and Limitations of Educational Leadership overrepresentation of students of color in special education, López and Iribarren do not reveal that, for some of the programs, student achievement is not a measurable goal. Specifically, Culturally Responsive Education for All: Training and En- hancement (CREATE) is a 3- to 5-year statewide initiative designed to “close achievement gaps between students from diverse backgrounds and to eliminate race and ethnicity as predictors of special education referrals” (Hoogstra, Tanyu, Tucker, & Loignon, 2011, p. 1). However, student achievement neither is a measurable goal nor is it identified as an outcome in the 125-page external evaluation of the initiative. Illustrating the possibilities of embracing high expectations while recognizing that students must be supported to reach such expectations, Miller and his colleagues describe a social justice leader with “unwavering faith in students’ abilities” to academically excel, coupled with both a recog- nition that differences in students’ home and neighborhood environments have tangible im- plications, as well as “a constant commitment to ‘meeting them [students] where they were’ ” (p. 136). In sum, in the current educational policy context that emphasizes student learning and achievement, scholars and educators for social justice send mixed messages on the role that student learning and achievement should play in this work. Equity Policy and Practice Incoherence A fourth irony and limitation of educational leadership for social justice practice is the lack of policy and practice coherence to address in- equities. This lack of coherence can be quite challenging for educators attempting to meet the needs of their school communities. Two aspects that contribute to this lack of coherence are the sheer number of uncoordinated, and sometimes contradictory, federal and state policies and ini- tiatives, and a lack of policy fluency experienced by most educators, as suggested by Miller et al. Also contributing to this incoherence is the lack of attention to inclusion/integration in these poli- cies and initiatives. Although all the articles in this special issue describe, in detail, promising and proven prac- tices for high-achieving, socially just, inclusive schools, they also illustrate the challenges facing educators dealing with the plethora of equity initiatives and policies thrown at them from the local, state, and federal levels and from social justice scholars. More specifically, the special issue does not address how educators should co- alesce and implement all the suggested practices, including the eight steps to inclusive schools that Theoharis and Causton describe, along with the four initiatives addressed in the López and Iribarren article for students who are linguisti- cally diverse, in addition to the four strategies for welcoming and including LGBT students as suggested by Hernandez and Fraynd, sugges- tions for addressing religious diversity in schools (Marshall), how to engage the community (Miller et al.), how to act as boundary spanners (Scanlan and Tichy), and move through the four steps to- ward racial reconciliation as suggested by Hors- ford while engaged in all this work. Not only are educators called on to make sense of, and then to implement, these multiple practices, which would be quite difficult to do, these practices are at times in conflict with each other as related to inclusive practices, to what extent and how they address different identities, and the role that achievement plays within them. These multiple equity policies and initiatives require educators to become policy fluent, according to Miller and colleagues, and to retrofit and shape initiatives, policies, and practices to their inclusive setting and student needs. Additionally, most federal, state, and local equity initiatives, as exemplified in the López and Iribarren article, do not pivot on inclusive/ integrative practices. Thus, educators for social justice are faced with a similar challenge as the educators in the Ashby, Burns, and Royle article on inclusive literacy. These authors describe how one predominantly White school district lever- aged a federal reading policy that typically per- petuates student segregation, to further inclusive practice for students with disabilities, improve reading achievement, and lower special education identification. To accomplish this, the school— 161 Inclusive Schooling and Leadership for Social Justice which had been engaged in inclusion for 25 years prior to this reading initiative—kept inclusive practices as the nonnegotiable centerpiece of implementation. In this way, the Sandy Creek educators resembled leaders in the Scanlan and Tichy article, for whom the Catholic mission of inclusion became the moral imperative that anchored all their work. Purposely anchoring all equity and policy and practice in inclusion/integration at the district and school levels as exemplified in the Ashby, Burns, and Royle and Scanlan and Tichy articles cannot be overemphasized. Research suggests that even when principals, teachers, and district leaders are fully committed to and have extensive expe- rience with inclusive/integrated practices, when district and school policies and practices are not centered on inclusion/integration, these educators lose direction and compromise their way back to segregating students (McKinney, 2010). An anchoring philosophy of inclusion/integra- tion across student differences, measured in part by student achievement embedded and frequently reaffirmed in a school or district culture, can help educators decide which policies and innovations should be adopted and how to coalesce policies and practices to have the most significant impact on inequities. Regardless of the policy fluency or efforts of social justice leaders, the plethora of equity policies and practices where inclusion/ integration, student learning and achievement, and the range of student identities are not central, work against educational leadership for social justice. Superhero/Collaborative Leadership Sandy Creek illustrates a best case scenario where educators were able to retrofit policy and practice successfully to their inclusive setting. Practicing social justice leadership, however, should be the norm, not the exception. Many scholars have criticized research on schools that have decreased or eliminated achievement dif- ferences between students for promulgating su- perhero leadership (McBeth, 2008). Instead, this research suggests that leadership for social justice is, or should be, shared or distributed across the school setting (Brooks, 2012). Indeed, the overused image of educational leaders who, on their own, can make everything right for all student populations regardless of the challenges put in their path, merely by sheer will and moral fortitude, does little to advance social justice practice. At the same time, research affirms that moving socially just practice from the margin to the center requires a school or district leader who capitalizes on and develops educator leadership and capacity toward this end, igniting and sus- taining the vision (Theoharis, 2009). To move social justice forward requires a combination of superhero/collaborative leadership, as exempli- fied in the Theoharis and Causton article. They identify eight steps for school leaders to cocreate and sustain inclusive, socially just schools. They preface these steps, however, by insisting that the steps be carried out in a democratic and transpar- ent matter with a representative leadership team, and that the team communicate with the entire staff throughout the process. In future scholarship, we hope to learn more about how leaders work with their leadership teams, teachers, and communities to collabora- tively build inclusive and integrated communities and hold one another responsible for effective practice, positive student experiences, and strong student and community outcomes. In sum, lead- ers for social justice must act in ways that combine superhero/collaborative leadership. A Call to Social Justice Educators Given the ironies and limitations identified here, we call those who care about social justice to make four fundamental changes in their work. First, an agreed upon understanding of what inclusion/integration means should be the central, visible, unambiguous anchoring feature of all scholarship, policies, and practices aimed toward eliminating educational inequities. It is clear, across student differences (e.g., race, gender, social class, ability, sexual identity, language, religions, and their intersections), all students benefit socially and academically in heteroge- 162 Capper and Young Ironies and Limitations of Educational Leadership neous, integrated settings. It is essential that those in positions to frame, fund, and implement new learning environments understand the power of inclusion/integration. As such, social justice educators and scholars must provide unambigu- ous evidence and develop persuasive arguments for how tracking and separate programs often demanded by White middle/upper class families harms their children and how, as an act of interest convergence (Alemán & Alemán, 2010), heterogeneous settings will, in fact, extend their children’s opportunities. Second, educators for social justice should make increased student learning and achievement the primary goal of their work. One can debate how learning is best measured, one can agree that learning gains represent just one facet of a student’s wellbeing and that educational practice needs to be linked to community transformation; but in the end, if a child cannot read, write, communicate, and compute at grade level or beyond, that child’s educational and life odds are severely diminished. Third, educators for social justice must at- tune themselves to, and become experts on, the range of student differences and their in- tersections. Public school educators for social justice are expected to reach and teach students of all differences—they do not have the option of choosing which student differences they will succeed with and which students of difference they will ignore in doing so. If, as one example, inclusion advocates for students with disabilities expect all schools to be inclusive, then these same advocates should school themselves in White racism, heterosexism, and inclusive practices for linguistically diverse students. As advocates for social justice, educators must stop creating and implementing policies, practices, and scholarship as if differences other than the one we are promulgating or addressing do not exist. Fourth, suggestions for creating more socially just schools must be understood as the respon- sibilities of a principal for social justice along with leadership teams and community members rather than the domain of single individuals. The field needs more examples of how leaders work with their colleagues and communities to collaboratively build inclusive communities and hold one another responsible for strong student and community outcomes. In sum, if educators truly embrace these commitments, they will make significant strides toward creating more inclusive/integrated and equitable communities, communities founded on respect and focused on providing full access and equitable outcomes. In so doing, educators for social justice can truly make an immediate and lasting difference. References Alemán, E., & Alemán, S. M. (2010). ‘Do Latin@ interests always have to “converge” with White interests?’: (Re)claiming racial realism and interest- convergence in critical race theory praxis. Race Ethnicity and Education, 13, 1–21. Anderson, G. L. (2009). Advocacy leadership: Toward a post-reform agenda in education. New York, NY: Routledge. Brooks, J. S. (2012). Black school White school: Racism and educational (mis)leadership. New York, NY: Teachers College Press. Capper, C. A., & Frattura, E. (2008). Meeting the needs of students of all abilities: How leaders go beyond inclusion (2nd ed). Thousand Oaks, CA: Corwin Press. Capper, C. A., & Green, T. L. (2013). Organizational theories and the development of leadership capacity for integrated, socially just schools. In L. Tillman, J. J. Scheurich, & Associates (Eds.), Handbook of educational leadership for equity and diversity (pp. 62–82). London, England: Routledge. Capper, C. A., Theoharis, G., & Sebastian, J. (2006). Toward a framework for preparing educational leaders for social justice. International Journal of Educational Administration, 44, 209–224. Chenoweth, K. (2007). It’s being done: Academic success in unexpected schools. Cambridge, MA: Harvard Education Press. Chenoweth, K. (2009). How it’s being done: Urgent lessons from unexpected schools. Cambridge, MA: Harvard Education Press. Chenoweth, K., & Theokas, C. (2011). Getting it done: Leading academic success in unexpected schools. Cambridge, MA: Harvard Education Press. 163 Inclusive Schooling and Leadership for Social Justice Education Trust. (2013). Success Stories. Retrieved April 9, 2013 from http://www.edtrust.org/dc/re sources/success-stories. Enyia, A. C. (2010). Finding plan B: Critical remedy construction for school districts operating under education equity consent decrees post Seattle and Louisville. Harvard Journal of African American Public Policy, 16, 33–51. Foley, R. M., & Pang, L. (2006). Alternative education programs: Programs and student characteristics. High School Journal, 89, 10–21. Frattura, E., & Capper, C. A. (2007). Leading for so- cial justice: Transforming schools for all learners. Thousand Oaks, CA: Corwin Press. Furman, G. C., & Gruenewald, D. A. (2004). Ex- panding the landscape of social justice: A criti- cal ecological analysis. Educational Administration Quarterly, 40, 49–78. Han, C. S. (2007). “They don’t want to cruise your type”: Gay men of color and the racial politics of exclusion. Social Identities, 13, 51–67. Hoogstra, L., Tanyu, M., Tucker, N., & Loignon, A. (2011). Wisconsin CREATE initiative: Year 2 evaluation. Chicago, IL: Learning Point Associates. King, M. L. (1968). The ethical demands for integra- tion. In J. M. Washington (Ed.), A testament of hope: The essential writings and speeches of Mar- tin Luther King, Jr. (pp. 117–125). New York, NY: Harper Collins. (Original work published 1962) Kosciw, J. G., Greytak, E. A., Bartkiewicz, M. J., Boesen, M. J., & Palmer, N. A. (2012). The 2011 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools. New York, NY: Gay, Lesbian, Straight, Educators Network. Kumashiro, K. K. (2012). Bad teacher!: How blaming teachers distorts the bigger picture. New York, NY: Teachers College Press. McBeth, M., E. (2008). The distributed leadership toolbox: Essential practices for successful schools. Thousand Oakes, CA: Corwin. McKenzie, K. B., Christman, D. E., Hernandez, F., Fierro, E., Capper, C. A., Dantley, M., : : : Scheurich, J. J. (2008). From the field: A proposal for educating leaders for social justice. Educational Administration Quarterly, 44, 111–138. McKinney, S. A. (2010). Toward a disability studies oriented framework for social justice leadership in education. Unpublished doctoral dissertation. University of Wisconsin Madison. Ogletree, C. J. (2004). All deliberate speed: Reflections on the first half century of Brown vs. Board of Education. New York, NY: Norton. O’Malley, M. (2013). Creating inclusive schools for LGBTIQ youth, staff, and families: Equitable ed- ucational leadership and research practice. In L. Tillman, J. J. Scheurich, & Associates (Eds.), Handbook of educational leadership for equity and diversity (pp. 355–379). London, England: Rout- ledge. O’Malley, M., & Capper, C. A. (2012, April). How UCEA member institutions prepare K–12 princi- pals for equitable leadership for LGBTIQ youth, staff, and families. Paper presented at the American Educational Research Association Annual Meeting, Vancouver, Canada. Orosco, M. J., & Klinger, J. (2010). One school’s im- plementation of RTI with English language learn- ers: “Referring into RTI.” Journal of Learning Disabilities, 43, 269–288. Shields, C. M. (2013). Transformative leadership in education: Equitable change in an uncertain and complex world. New York, NY: Routledge. Theoharis, G. (2009). The school leaders our children deserve: Seven keys to equity, social justice, and school reform. New York, NY: Teachers College Press. Ward, E. G. (2005). Homophobia, hypermasculinity, and the U.S. Black church. Culture, Health, and Sexuality: An International Journal for Research, Intervention, and Care, 7, 493–515. Worthy, J. (2010). Only the names have been changed: Ability grouping revisited. Urban Review, 42, 271– 295. 164 Copyright of Theory Into Practice is the property of Taylor & Francis Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. 
work_ynsoeky7kraufntjqtsektvx6q	----	Brandon Garrett (Duke University) Harvard Data Science Review • 2.1 Brandon Garrett (Duke University) Brandon L. Garrett Published on: Jan 31, 2020 Harvard Data Science Review • 2.1 Brandon Garrett (Duke University) 2 This will be a commentary on the article, “The Age of Secrecy and Unf airness in Recidivism Prediction” by Cynthia Rudin, Caroline Wang, and Beau Coker forthcoming in February. https://hdsr.mitpress.mit.edu/pub/7z10o269 
work_yrzbxa2osbafninjmkfazokuui	----	Northumbria Research Link Citation: Crossley, Stephen (2017) The 'official' social justice: an examination of the Coalition government's concept of social justice. Journal of Poverty and Social Justice, 25 (1). pp. 21-33. ISSN 1759-8273 Published by: Policy Press URL: https://doi.org/10.1332/175982717X14842282011532 <https://doi.org/10.1332/175982717X14842282011532> This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/30264/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. Full items must not be sold commercially in any format or medium without formal permission of the copyright holder. The full policy is available online: http://nrl.northumbria.ac.uk/pol i cies.html This document may differ from the final, published version of the research and has been made available online in accordance with publisher policies. To read and/or cite from the published version of the research, please visit the publisher’s website (a subscription may be required.) http://nrl.northumbria.ac.uk/policies.html Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 The ‘official’ social justice: an examination of the Coalition Government’s concept of social justice. Stephen Crossley, stephen.crossley@northumbria.ac.uk Northumbria University, UK Introduction Social justice has appeal across the political spectrum but, in recent times, it is the Conservative Party who have spoken most successfully about social justice in the UK. David Cameron called social justice ‘one of the priorities for the modern Conservative Party’ (in Lister and Bennett, 2010). He referred to Iain Duncan Smith, a former Leader of the Party and former Secretary of State for Work and Pensions as ‘the most determined champion for social justice this Party has ever had’ (The Telegraph online 2013). The Conservative-led Coalition government published a raft of social justice documenTs, including the first UK Government Social Justice Strategy (SJS). Duncan Smith himself established the Centre for Social Justice think-tank and has spoken of the government’s policy of a ‘benefits cap’ as ‘social justice in action’ (Stone 2015). Theresa May, in her first speech as Prime Minister, spoke of Cameron’s ‘true legacy’ being social justice and not the economy (May, 2016). This article examines the official governmental concept of social justice that May has inherited, arguing that it is inconsistent with other theories and understandings of the concept. Whilst the work of the Centre for Social Justice has been subjected to critique (Lister and Bennett 2010, Slater 2014) the official social justice advanced in government documents has, to date, largely escaped similar attention (Hayton and McEnhill 2015: 140- 143 is an exception). The article begins with a discussion of some traditional comprehensions of social justice and summarises its recent use by political parties prior to 2010. A short section on methodology precedes a sketching out of five interconnected themes of: dehistoricised; localisation and individualisation; residualisation; work; and innovation and commodification. The article concludes with a brief summary of the official social justice and a look forward to its future use by the government. https://doi.org/10.1332/175982717X14842282011532 mailto:stephen.crossley@northumbria.ac.uk Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 Social Justice In acknowledging the growing Conservative interest in the concept, Lister argues that ‘the political debate is no longer about the desirability of social justice. Instead, it now concerns its meaning(s) and how it is best achieved’ (Lister, 2007: 113). She highlights two paradigms within social justice – (re)distribution and recognition – and notes that Nancy Fraser has proposed that a paradigm of representation or ‘voice’ should be viewed as a third dimension of social justice. The distribution paradigm can perhaps be best summed up by David Miller’s (1999: 1) assertion that social justice is about ‘how the good and bad things in life should be distributed among the members of a human society’. John Rawls’ A Theory of Justice is arguably the most influential contribution to discussions on the concept of social or distributive justice in the last 50 years. He argues that: the primary subject of (social) justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation (Rawls, 1999: 6) Rawls defends this choice of subject by highlighting the profound nature of the effects of the structure of society, noting that the place in the structure that people are born into has undeniable consequences for their potential outcomes in life. Rawls sets out two (or three – Wolff, 2008: 18) principles of justice which focus on: equal rights for all (the liberty principle): and the arrangement of social and economic inequalities, so they can both be expected to be to everyone’s advantage (the difference principle) and are attached to positions and offices open to everyone (the fair opportunity principle, Rawls, 1999: 53). It is the difference principle that has been called Rawls’ ‘most distinctive contribution’ (Wolff, 2008: 18) and has led to the argument that his theory is based on absolute priority for the ‘worst-off’, and that we should judge the justness of any given society by how it treats its worst-off and most marginalised members. Rawl’s work, however, is not without its critics (see, for example Sen, 1992 and Dworkin, 2000) and there are alternative theories about how resources and holdings can and should be distributed. Robert Nozick developed the concept of ‘entitlement theory’ which is based https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 on principles relating to individuals’ entitlement to a ‘holding’, being through just processes of acquisition or transfer and no other arrangements (Nozick 1974:151). Nozick believed that (re)distribution by other means, such as theft and fraud, but also by taxation, was unjust, hence the need for a ‘principle of rectification’. Ronald Dworkin has argued against Rawls’ work on the basis that it doesn’t include a consideration of responsibility in relation to why ‘the worst off’ were in the position they were. If people chose not to work, or not to work hard, and were thus disadvantaged, then, Dworkin argued, it would be unfair to redistribute resources from hard-working groups to lazier, more feckless groups. Both Dworkin and Amartya Sen have further critiqued Rawls by highlighting that income and wealth, which were central pillars of Rawls’ work, ignore the fact that some people, such as those with limiting illnesses and disabilities, may require extra resources in order to achieve the same level of welfare as others. Sen’s influential work, often in collaboration with Martha Nussbaumm, has instead focused on the extent to which each individual is able to achieve their full capabilities. The recognition paradigm within social justice highlights the domination and oppression that many people are subject to and extends the concept to include not just economic or distributive justice, but issues of cultural or symbolic injustice as well (Lister, 2007: 116). Iris Marion Young has highlighted ‘how broad structures of the division of labour, hierarchical decision-making power, and processes of normalisation inhibit the ability of some people to develop and exercise their capacities while offering wide opportunity to others’ (Young, 2008: 78) Other recognition theorists (see Lister 2008 for an introduction) have spoken of ‘status subordination’, the need for ‘parity of participation’ and discussed the humiliation and disrespect associated with the lack of recognition (Fraser & Honneth 2003). Social justice, then, although often viewed as a concept to be pored over and ‘discussed at an abstract, perhaps refined, level by political and economic philosophers’ (Piachaud, 2008a: 34) is generally perceived to be about the impact of the structures and institutions of society on the lives of all its people, with a sometime strong regard for the impact felt by the most marginalised and disadvantaged. It is therefore an issue which has occupied politicians https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 of different colours, and to different degrees. The various post-war policies and approaches of the Labour (Page 2008, Tomlinson 2008, Piachaud 2008b) and Conservative (Bochel 2010, Hickson 2010) parties in respect of poverty and social justice have been covered extensively elsewhere and so these longer histories will not be covered in detail. More recently, Margaret Thatcher’s deep respect for the work of Friedrich Hayek, who believed that social justice was a ‘hollow incantation’ meant that she had little time for the concept (Hayek, 1976: xii). The attention here focuses on the ways in which the concept has been employed since the advent of New Labour A Commission on Social Justice, established by the late John Smith MP during his time as Leader of the Labour Party but reporting under the leadership of Tony Blair, suggested that ‘the UK need not be the tired, resentful, divided and failing country it is today’ (Commission on Social Justice/IPPR, 1994: 1). Their final report makes the case for a social justice that appears close to Dworkin’s approach that emphasises responsibility - one ‘that demands and promotes economic success’ (1994: 1) with a key feature being the building of an ‘intelligent’ welfare state. Such a state ‘must offer a hand-up, not just a hand-out’ (1994: 8), because ‘Social benefits have to be paid for, and the economy will not sustain limitless transfers from a diminishing section of society to an increasing class of the destitute’ (1994: 18-19). The concept of social justice was never more than an overarching theme for New Labour, with a more explicit policy focus on tackling social exclusion and the eradication of child poverty. Blair’s symbolically important first speech as Prime Minister at the Aylesbury Estate highlighted a focus on the most socially excluded individuals – ‘a workless class’ - and the need to ‘reconnect them’ to society. In a brief examination of the application of social justice principles under New Labour, Burchardt and Craig (2008: 2) argue that the establishment of the Social Exclusion Unit in the early days of Blair’s first government, and its subsequent focus on the most marginalised individuals such as homeless people, teenage runaways, and teenage parents, suggest a move away from attempts to improve society and address inequalities for the benefit of all. https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 However, in Tony Blair’s speech in 1999 when he made the pledge to ‘eradicate’ child poverty by 2020, he set out his vision of what social justice was. Blair argued that social justice was about ‘decency’, ‘merit’, ‘responsibility’, ‘fairness’ and ‘values’. Despite the mention of poverty and social justice in the same speech, Driver (2008: 164) argued that ‘a persistent criticism of New Labour is that, like the New Right, it has separated policies to address poverty from claims to social justice’. Driver also states that whilst New Labour helped to reduce poverty amongst certain groups it ‘failed to resolve the fundamental inequalities of wealth and income that are the main drivers of poverty across society’ (Driver, 2008: 165). On the other side of the political spectrum, a number of recent Conservative ‘modernising’ leaders have been linked with a ‘compassionate Conservatism’ which has sought to incorporate the concept of social justice. William Hague and Iain Duncan Smith, during their leaderships, both embraced this approach. Whilst the ‘traditional’ Conservative approaches favoured by Michael Howard represented a brief hiatus, the election of David Cameron as Leader in 2005 at least restored the rhetoric of compassionate Conservativism (Page, 2010: 148-149). Shortly after becoming Leader, Cameron established six policy groups, including a Social Justice Policy Group, chaired by Duncan Smith and tasked with ‘refashioning the Conservative approach to poverty and social justice’ (Page, 2010: 149). This work was carried out in partnership with and with the assistance of the Centre for Social Justice (CSJ), the think-tank established by Duncan Smith in 2004. It is Duncan Smith, who is most closely associated with the Conservatives (re)discovery of social justice. The influential Conservative Home website argued that ‘What brought Duncan Smith back from the land of the political dead was his passion for social justice’ (Goodman 2013). Duncan Smith set up the ‘independent’ think-tank the CSJ following a visit to Easterhouse in Glasgow in 2002, around ten years after Labour’s Commission on Social Justice visited the same estate. The Daily Herald called Duncan Smith’s visit the ‘Easterhouse Epiphany’ and suggested that he ‘came, saw and converted to a radical new form of Conservatism’ (Collins 2002). Duncan Smith himself has talked about the profound impact the visit had on him, claiming it was a sort of Damascene point’ (Derbyshire, 2010). https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 Duncan Smith established the Centre for Social Justice, which now proudly proclaims on its website that it is ‘putting social justice at the heart of British politics’, following a promise he made to Janice Dobbie, an Easterhouse mother who had lost her son to a drug-related death shortly before meeting Duncan Smith. The Centre for Social Justice helped to popularise the ‘broken Britain’ narrative and their work has been subjected to robust academic critiques which have highlighted the stimgatising portrayal of disadvantaged groups in their publications and press releases (see, for example, Hancock and Mooney, 2012; Slater, 2014). When a Conservative-led coalition government was formed in 2010, it gave Duncan Smith the opportunity to implement many of his ideas about social justice. Methodology Official government documents relating to social justice were critically examined using thematic analysis Boyatzis (1998: 29-53). Based on prior theories of social justice, a theory- driven code approach was developed, with the analytic emphasis on looking for thematic departures from other, more ‘traditional’, theories of social justice. Initial codes were reviewed and, in some cases, refined and/or re-written (Boyaatizis, 1998: 36). The limitation of only using official government documents means that the publications, press releases and rhetorical interventions of the CSJ are outside the remit of this article. The focus here is strictly on the official social justice, and not on the accompanying unofficial, or informal, supporting rhetoric. The advent of the SJS, an official version of social justice was published, one which carried the full force of the state behind it. Pierre Bourdieu (1989: 22) has argued that official discourses, authorised by the state, carry more weight than many others because they impose a point of view that is ‘instituted as legitimate’ and that ‘everyone has to recognize’ The official version of social justice is not just being spoken or written about, it is also being operationalized via the SJS and a wider political programme of work promoting the ‘delivery’ of social justice. Shortly after the publication of the SJS a Social Justice Outcomes Framework was published, setting out priorities, how progress would be measured and what the government wanted to achieve. Two progress reports (referred to here as One Year on and Progress Report) have followed showing how the government is ‘delivering’ https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 social justice and three annual Social Justice Conferences have been held. A Social Justice Cabinet Committee has been formed. April 2014 was identified as Social Justice month, promoted by an official government Twitter account (@socjusticegov) and the now obligatory hashtags - #SJmonth2014 & #sjpledge2014. A ‘new’ social justice? The intention here is to highlight five broad inter-connected themes that emerge from the government’s social justice publications and communications, and discuss them in relation to other theories of social justice. References are for the SJS, unless otherwise indicated. 1. De-historicized The official government Social Justice Strategy (SJS) states simply that ‘Social Justice is about making society function better – providing the support and tools to help turn lives around’ (2012) and aligns it with a ‘challenging new approach to tackling poverty in all its forms’ (2012: 4). The strategy is linked to the government’s strategies on social mobility and child poverty: if the Social Mobility Strategy ‘is about ensuring people are able to move up the social ladder, regardless of background; this Social Justice Strategy is about ensuring everybody can put a foot on that ladder’ (2012: 4). The official social justice is presented as a radical break from previous government work to address disadvantage, but it is unclear which previous understanding(s) of social justice the SJS is based on. When Iain Duncan Smith was previously asked by a journalist what social justice was primarily about, if not distribution, he gave a ‘startlingly muddled’ response: ‘I mean to improve the quality of people's lives, which gives people the opportunity to improve their lives. In other words, so people's quality of life is improved’ (in Derbyshire 2010). Similarly, at no point during their existence has the Centre for Social Justice ever clarified what they mean by ‘social justice’ (Slater 2014: 953). https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 Whilst most theories of social justice set out ‘ideal’ and therefore radical situations, such as Rawl’s argument that inequalities should be to everyone’s advantage, the official social justice appears more minimalist in its aim to ‘make society function better’. Rawl’s view that ‘the primary subject of justice is the basic structure of society’ is eschewed in favour of a version of social justice which leaves the basic structure of society (the ‘ladder’) unchanged, but ‘functioning better’. Where Rawls was concerned with the positions into which people were born, the SJS sets out the government’s ‘vision for a ‘second chance society’ (HM Government, 2012: 1) implicitly suggesting that everyone has access to (more or less) equal first chances. Structural issues such as race, gender and disability barely feature in the SJS and the words ‘redistribution’ and ‘recognition’ do not feature once in the document. The words ‘freedom’ and ‘capabilities’ or their derivatives are rarely mentioned in official social justice documents, although ‘responsibility’ does feature slightly more often, across a range of policy areas. Mention of class and material and cultural inequalities is similarly absent. Cross-departmental work on social justice in Whitehall does not include the Treasury which effectively precludes the potential role of (re)distribution in the official social justice. The official social justice seeks to minimise the role and influence of the central state further, instead focusing on the roles of ‘individuals and organisations working at the grassroots, from local charity and community leaders to local authorities and agencies’ (2012: 11). The dehistoricized and minimalist official social justice, then, which satisfies itself with ‘keeping young people on track’ and ‘ensuring that interventions provide a fair deal for the taxpayer’ echoes Slater’s (2014: 965) argument that the concept ‘has never been part of Conservative intellectual history’ which, instead, is more focused on ‘avoiding social breakdown’ than radical, transformational change. 2. Localization and individualization As highlighted above, social justice is depicted as a localized issue, with the delivery of social justice being devolved to ‘grassroots’ organisations and junior, street-level bureaucrats and charity workers. The concomitant focus within the SJS on small numbers of individuals experiencing ‘multiple disadvantages’, and ‘troubled families’, represents another point of https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 departure from many conceptions of social justice which, tend to focus on structural and institutional issues rather than individuals. Although there is a strong rhetorical commitment to social justice from central government, it is expected that it will need ‘to be driven forward at a local level’ (2012: 11). One of the five principles of the official social justice is ‘Recognising that the most effective solutions will often be designed and delivered at a local level’ (2012: 4). The SJS also states Locally-designed and delivered solutions are critical here. This Government is clear that individuals and organisations working at the grassroots, from local charity and community leaders to local authorities and agencies, are best placed to make decisions about how improvements can be made to the way services are delivered in their area (2012: 11). The focus on ‘life chances’ within the SJS, the adoption of a ‘lifecycle approach’ (2012: 13), and the use of case studies of individuals within the strategy and accompanying social justice communications ensures that the official social justice revolves firmly around individuals who, given the rights ‘tools’, and support from local services, can ‘transform their lives’ and ‘lift themselves out of poverty’. The SJS introduces us to a range of individuals, used as examples of the need for a ‘new’ approach to tackling poverty and social injustice: ‘Barry’ is the first such example: Barry was drug dependent, as was his father before him. His mother, an alcoholic, split from Barry’s father and met another man, at whose hands Barry was physically abused. Barry was taken into care. Barry was drinking by the time he was 10, using cannabis by 11 and heroin at 15. Quickly turning to crime to fund his habit, he spent the next 17 years in and out of prison: “I was messed up in a really bad way. My family had disowned me… The crime, the drugs, the violence. Nobody wanted to know me.” When not in prison he was parked on benefits, money spent either on feeding himself or feeding his habit. (2012: 5) The reader is also introduced to: Sparky, an ex-offender whose life has been ‘turned around’ by him finding employment (2012: 52); Paul, an alcoholic with a range of health issues and lacking in motivation; Luke who got involved with gangs shortly after the death of his https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 mother; and Rob and Rachel, a couple who were often in rent arrears and whose children ‘were close to being taken into care’ (2012: 22). Visitors to the social justice webpages of the DWP website can read 24 case studies of social justice in action, sorted into themes such as ‘Domestic violence’, ‘drugs and alcohol’, ‘homelessness’ and ‘mental health’ (DWP 2013). The detail of the personal stories, along with the benevolent idea of a ‘second chance society’ (2012: 1) echo Levitas’ (1998: 188) criticism of New Labours use of the concept of social exclusion which ‘distract[ed] attention from the essentially class-divided character of society and allows a view of society as basically benign to co-exist with the visible reality of poverty’. Levitas argued that the ‘problematic’ characteristics of individuals were personalised and therefore placed ‘outside society’ – a situation which is not consistent with other theories of social justice. 3. Residualisation The localisation and individualisation highlighted above does not apply equally to all people or all places. The personal characteristics and experiences of small numbers of marginalised groups – the ‘most disadvantaged’ or ‘troubled families’ - living in ‘broken communities’ (2012: 5) are scrutinised and pored over. This residualisation allows the structures and institutions of society, and the populace more widely - the primary subjects in most theories of social justice - to become, at best, secondary considerations or afterthoughts. The SJS ‘sets out an ambitious new vision for supporting the most disadvantaged individuals and families in the UK’ (2012: 1) and a whole chapter is devoted to ‘Supporting the most disadvantaged adults’, such as those affected by homelessness, re-offending, drug and alcohol dependency and mental ill health and problem debt (2012: 47). As highlighted in the previous section, many of the case studies and vignettes used in the official social justice documents and webpages focus on individuals who have experienced a range or extent of disadvantages that many members of society would not have experienced. Another group who are central to the SJS are the 120,000 ‘troubled families’ identified by the government in 2011, following the riots that took place in August of that year. In the SJS, the lives of these families are described as ‘so chaotic they cost the Government some £9 https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 billion in the last year alone (2012: 1). Once again, a wide range of disadvantages are linked with ‘troubled families’ These are families whose lives are blighted by crime, worklessness, drug and alcohol dependency, low aspirations and educational failure. The chaotic lifestyles these families lead, without routines or boundaries, often destroy the life chances of the children who grow up in them. In keeping with similar historical debates about an alleged an ‘undeserving poor’ or an ‘underclass’ (Welshman, 2013) there is, within the SJS, concern that relatively small numbers of ‘troubled families’ will pass on their problematic behaviours to their children. The strategy sets out how it will need to break ‘the cycle of deprivation’ (2012: 10) and the cycle of inter-generational disadvantage (2012: 43). The Social Justice Progress Report, published in November 2014, reported that the Troubled Families programme had ‘successfully turned around the lives of 70,000 troubled families’ and noted the expansion of the programme to include 400,000 more families in a second phase (HM Government, 2014; 16). These issues are also localised. The strategy focuses on disadvantaged communities where ‘entrenched and intergenerational worklessness’ exists (2012: 41). Children who grow up in ‘broken communities and facing multiple disadvantages …find themselves passing on their difficult circumstances from one generation to the next’ (2012: 5). The strategy goes on to state that, if it is to make a difference it will be necessary to ‘focus our efforts on reaching those families and communities where worklessness has become all too common (2012: 37). This focus on the most disadvantaged individuals, families and locations has occurred when wider government rhetoric has directed attention towards ‘skivers’, ‘shirkers’, benefit fraudsters’ and ‘sink estates’. This process of Othering sees a line ‘drawn between ‘them’ and ‘us’ – between the more and the less powerful – and through which social distance is established and maintained’, with people and places experiencing disadvantage are constructed as ‘a source of moral contamination, a threat, an ‘undeserving’ economic burden, an object of pity or even as an exotic species’ (Lister 2004: 101). https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 This narrow focus of the SJS on the ‘most disadvantaged individuals and families’, which almost appears as a misreading of Rawls focus on the most disadvantaged, helps to present the view that those citizens who are not ‘the most disadvantaged’ experience and live in a largely benign and socially just society, 4. Work Within the official social justice documents, there is a strong emphasis on the role of work in tackling disadvantage. Tackling ‘entrenched and inter-generational worklessness’ and ‘the culture of worklessness’ in ‘troubled families’ and ‘broken communities’, as highlighted in the previous discussion, is a key component of the SJS. In the third chapter of the SJS, which highlights the importance of work, the document states that the ‘this Government is unashamedly ‘pro-work’ and will ‘reward those who seek a job’ (2012: 36), The chapter highlights that ‘work has the potential to transform the lives not just of individuals but of whole communities’ and that the benefits of work are ‘far wider than just remuneration’, enabling ‘parents to act as role models for their children’ and ‘fostering aspiration in young people’ (2012: 37). Such a position suggests links with Dworkin’s emphasis on personal responsibility, but there is no attempt to differentiate those that ‘can work but won’t’ from those that can’t find paid employment. There is a strong emphasis on ‘support’ for people seeking employment, with a number of different funding streams, welfare reforms and policy programmes listed which set out how the government is ‘smoothing the journey into work’ (2012: 38-46). This narrow focus on one side of the ‘employment equation’ ensures that the ‘employer’ side receives relatively little attention. A ‘living wage’ and the issues of ‘in-work poverty’, ‘zero-hours contracts’ and insecure, precarious employment are not mentioned in any of the official government social justice documents. Support for people with disabilities or disadvantages to ‘achieve their full potential’ appears to stop once they have entered employment of any sort, leaving the official social justice looking like a distorted, minimalist version of Sen’s ‘capabilities approach’. Instead, the focus remains on ‘helping those in work to lift themselves out of poverty’ (2012: 9). In discussing ‘the future’ the SJS sets out the ‘tangible outcomes’ that are required https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 more households with at least one member in sustained work, with a focus on reducing the number of young people out of work and the number of children growing up in workless households; more households being financially independent through work; more people with multiple barriers to work moving closer to the labour market. And, critically, a change in attitudes. Work must be seen as desirable and something to be aspired to, and a life on benefits for those who can work must become unacceptable. This future highlights the minimalist and residualist themes already noted, but it also obscures a vision of what the future might hold for those unable to work. Although the SJS promises ‘unconditional support to those who are severely disabled and cannot work’ (2012: 10) what this support looks like is never explained or expanded upon in the strategy or any subsequent documents. The Social Justice Outcomes Framework contains no mention of ‘disability’, which is central to Sen and Dworkin’s work, and the issue is rarely discussed in any of the documents. The issue of ‘caring’ for family members, and other forms of domestic labour, remain similarly undiscussed in the SJS, which views participation in the labour market as the only form of ‘work’ worth mentioning. 5. Innovation and Commodification The official social justice promises to ensure a ‘fair deal for the taxpayer’ (2012: 4) and believes that social justice can be achieved by ‘connecting successful financiers and businesses with difficult communities and creating a vested interest in delivering real and lasting improvements’ (2012: 64). In setting out how it represents a break from previous government efforts to support ‘the most disadvantaged’ the SJS highlights a number of ‘innovative’ market-friendly reforms, such as: ‘incentivising providers – payment by results (2012: 62); ‘Growing the social investment market’ (2012: 64); ‘Leading the way in testing innovative financing solutions (2012: 66); and ‘Supporting social ventures to improve their investment readiness’ (2012: 67). The future promises to be one where it is possible to ‘open up greater opportunities for social ventures and social investors to get involved in turning around the lives of those most disadvantaged’ (2012: 68). https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 The ‘growing’ of the social investment market is a strong element of the focus on innovation. The seventh Key Indicator in the Social Justice Outcomes Framework is ‘The size of the social investment market’. The One Year On document states that such a market can ‘unlock new funding streams motivated by social as well as financial returns, bringing the resources and the rigour of the private sector to bear on tackling entrenched disadvantage’ (HM Government, 2013: 40). The Progress Report document also lays out how we are opening up social services to a whole host of groups who might never before have seen themselves as part of the solution for change; be it private sector companies, high-net individuals, venture capitalists and more. With it, that investment brings the rigour, discipline and innovation of the private sector, the know-how of our most savvy entrepreneurs and business people applied to tackling our society’s most entrenched problems (HM Government, 2014: 48). As well as promoting the role of local government and local voluntary sector organisations, then, the SJS also foregrounds the role that social enterprises, ‘mutual and private companies’, and ‘investors and philanthropists’ (2012: 60) can play in ‘delivering social justice’. Once again, this has the effect or minimalizing the role of the state and focusing attention of more localised actors and activities. Social justice is thus transformed from a concept variously concerned with issues such as redistribution, equality, responsibility and freedom to one which repackages some of the most marginalised and disadvantaged people in our society presents them as investment opportunities for ‘high-net individuals’, ‘venture capitalists’ and ‘successful financiers’. The ‘opening up’ of public services introduces a marketplace where private sector companies, philanthropists and ‘savvy entrepreneurs’ can bid for the opportunity to make a tidy profit out of ameliorating other people’s misery. This commodification of social justice represents another fundamental shift from Rawls’ concern with the structure of society and the distribution of resources to one that aims to ‘change the way that people in poverty behave, but leave the system intact’ (Silver and Clarke 2014). Discussion The official social justice which, in summary, purports to prioritise local action to support the most disadvantaged individuals, appears to be at odds with many traditional theories of https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 social justice, which promote radical changes to structural and institutional arrangements to bring about social justice for the whole populace. The emphasis on the individuals and families serves to close off discussion of wider issues such as the structure of the labour market, the inadequacy of the benefits system, and extreme levels of wealth inequality. The causes of poverty, as understood by over a century’s worth of social scientific research, are systematically misrecognised and misrepresented by the official social justice narrative. The prevalence of in-work poverty, the problems of low-pay and the corrosive effects of poverty and material deprivation all remain undiscussed, with poverty presented as an effect of personal failings as opposed to an inadequate income and its effects. The ‘disadvantaged’ individuals within the SJS are portrayed as having messed up their ‘first chances’: they have ‘failed’ educationally: lead ‘chaotic lifestyles’: are unable to prevent their family from breaking down: and would spend an increase in benefits income ‘feeding social problems such as drug dependency’ (2012: 10). This official narrative, which doesn’t mention welfare reforms such as the ‘benefits cap’ or ‘spare room subsidy’, which are adversely affecting precisely the populations and places the SJS aims to support (Beatty and Fothergill, 2016), drowns out the voices of the individuals themselves. ‘The future’ It is still too early to assess whether Theresa May’s approach to social justice will be similar to that advanced by Iain Duncan Smith under David Cameron-led governments. The concept has itself been marginalised in recent years with no new strategy, no progress reports since 2014. Duncan Smith is now out of office and Cameron is out of party politics altogether. May’s early platitudes to Cameron and her suggestion that his ‘true legacy is not about the economy but about social justice’ (May, 2016) suggest that a radical departure may not be just around the corner. However, May did, in her first speech, talk about the union ‘between all of our citizens, every one of us, whoever we are and wherever we’re from’ (May, 2016), and her subsequent announcement of a review of the scale of racial inequalities across the UK suggests that a different, stronger approach to social justice may be coming into view. If May, however, is to avoid the accusation that her use of the concept is ‘intellectually disreputable, the mark of a demagogy’ (Hayek, 1976: 97), then she will need to https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 acknowledge the role that government plays in creating the ‘burning injustice’ of inequality, as well as the role it can – and should – play, in tackling it. Acknowledgements I would like to thank the two anonymous reviewers of a previous draft of this article. Their comments were very constructive, and helpful in re-thinking the article. https://doi.org/10.1332/175982717X14842282011532 Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 References Beatty, C. and Fothergill, S, 2016, The uneven impact of welfare reform: The financial losses to places and people, CRESR, Sheffield Hallam University. Blair, T, 1999, Beveridge Lecture, 18 March 1999, http://www.bristol.ac.uk/poverty/downloads/background/Tony%20Blair%20Child%20Pover ty%20Speech.doc. Bochel, H, 2010, One nation Conservatism and social policy, 1951-1964, Journal of Poverty and Social Justice, 18, 2, 123-134 Bourdieu, P, 1989, Social Space and Symbolic Power, Sociological Theory, 7, 1, 14-25 Boyatzis, R. E., 1998 Transforming Qualitative Information: Thematic analysis and code development, London: Sage. G. Craig, T. Burchardt, T., and Craig, G., 2008, Introduction, in G. Craig, T. Burchardt and D Gordon (eds) Social Justice and Public Policy, Bristol: Policy Press. Collins, V, 2002, How Iain Duncan Smith came to Easterhouse and left with a new vision for the Tory party, The Herald, 23 March 2002, http://www.heraldscotland.com/sport/spl/aberdeen/how-iain-duncan-smith-came-to- easterhouse-and-left-with-a-new-vision-for-the-tory-party-1.155218 Commission on Social Justice, 1994, Social Justice: Strategies for National Renewal, London: Vintage CSJ online, The Centre for Social Justice, http://www.centreforsocialjustice.org.uk/about- us/history Derbyshire, J, 2010, Poor Relations, New Statesman, 1 March 2010, http://www.newstatesman.com/uk-politics/2010/03/duncan-smith-social-interview Driver, S, 2008, Poverty, social justice and the Labour government, 1997-2007, Journal of Poverty and Social Justice, 16, 2, 157-167 https://doi.org/10.1332/175982717X14842282011532 http://www.bristol.ac.uk/poverty/downloads/background/Tony%20Blair%20Child%20Poverty%20Speech.doc http://www.bristol.ac.uk/poverty/downloads/background/Tony%20Blair%20Child%20Poverty%20Speech.doc http://www.heraldscotland.com/sport/spl/aberdeen/how-iain-duncan-smith-came-to-easterhouse-and-left-with-a-new-vision-for-the-tory-party-1.155218 http://www.heraldscotland.com/sport/spl/aberdeen/how-iain-duncan-smith-came-to-easterhouse-and-left-with-a-new-vision-for-the-tory-party-1.155218 http://www.centreforsocialjustice.org.uk/about-us/history http://www.centreforsocialjustice.org.uk/about-us/history http://www.newstatesman.com/uk-politics/2010/03/duncan-smith-social-interview Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 DWP, 2012, Speech: Social justice: transforming lives, 13 March 2012, https://www.gov.uk/government/speeches/social-justice-transforming-lives DWP, 2013, Social Justice case studies, 15 October 2013, https://www.gov.uk/government/collections/social-justice-case-studies Dworkin, R, 2000, Sovereign Virtue: The Theory and Practice of Equality, Cambridge, MA: Harvard University Press, Fraser, N, and Honneth, A, (eds) 2003, Redistribution or recognition? A political philosophical exchange, London: Verso Goodman, P, 2013, IDS, today’s Wilberforce. But the latter wasn’t dependent on Government computers to help abolish slavery…, 3 January 2013, http://www.conservativehome.com/thetorydiary/2013/01/-ids.html Hancock, L, and Mooney, G, 2012, “Welfare ghettos” and the “broken society”: territorial stigmatisation in the contemporary UK, Housing, Theory and Society, 30, 1, 46–64. Hayek, F, 1976, The mirage of social justice, London, Routledge Hayton, R and McEnhill, L, 2015, Cameron’s Conservative Party, social liberalism and social justice, British Politics, 10, 2, 131-147 Hickson, K, 2010, Thatcherism, poverty and social justice, Journal of Poverty and Social Justice, 18, 2, 135-145 HM Government, 2012, Social Justice: transforming lives, London: TSO HM Government, 2013, Social Justice: transforming lives one year on, London: TSO HM Government, 2014, Social Justice: transforming lives Progress report, London: TSO Levitas, R, 1998, The Inclusive Society?, London: Palgrave Lister, R, 2004, Poverty, Cambridge: Polity Press Lister, R, 2007, Social justice: meanings and politics, Benefits, 15, 2, 113-125 https://doi.org/10.1332/175982717X14842282011532 https://www.gov.uk/government/speeches/social-justice-transforming-lives https://www.gov.uk/government/collections/social-justice-case-studies http://www.conservativehome.com/thetorydiary/2013/01/-ids.html Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 Lister, R, 2008, Recognition and voice: the challenge for social justice, in G. Craig, T. Burchardt and D Gordon (eds) Social Justice and Public Policy, Bristol: Policy Press Lister, R and Bennett, F, 2010, The new ‘champion of progressive ideals’? Cameron’s Conservative Party: poverty, family policy and welfare reform, Renewal, 18, 1-2, 84-109 Miller, D, 1999, Principles of social justice, Cambridge: Harvard University Press Nozick, R. 1974, Anarchy, State and Utopia, New York: Basic Books Page, R, 2008, Towards a ‘red’ and pleasant land? The attack on poverty and the pursuit of social justice in the Attlee era, 1945-51, Journal of Poverty and Social Justice, 16, 2, 125-133 Page, R, 2010, David Cameron’s Modern Conservative approach to poverty and social justice: towards one nation or two?, Journal of Poverty and Social Justice, 18, 2, 147-160 Piachaud, D, 2008a, Social justice and public policy: a social policy perspective, in G. Craig, T. Burchardt and D Gordon (eds) Social Justice and Public Policy, Bristol: Policy Press Piachaud, D, 2008b, Poverty and inequality: Labour in the 1970s, Journal of Poverty and Social Justice, 16, 2, 147-156 Rawls, J, 1999, A Theory of Justice (revised edition), Oxford: OUP Sen, A, 1992, Inequality Reexamined, Cambridge, MA: Harvard University Press Silver, D and Clarke, B, 2014, Social Impact Bonds: Profiting from poverty? 3 September 2014 http://www.the-sarf.org.uk/social-impact-bonds/ Slater, T, 2014, The Myth of “Broken Britain”: Welfare Reform and the Production of Ignorance, Antipode, 46, 4, 948-969 Stone, J, 2015, The Tories' benefit cap is 'social justice in action', says Iain Duncan Smith, The Independent, 28 May 2015, http://www.independent.co.uk/news/uk/politics/the-tories- benefit-cap-is-social-justice-in-action-says-iain-duncan-smith-10280514.html https://doi.org/10.1332/175982717X14842282011532 http://www.the-sarf.org.uk/social-impact-bonds/ http://www.independent.co.uk/news/uk/politics/the-tories-benefit-cap-is-social-justice-in-action-says-iain-duncan-smith-10280514.html http://www.independent.co.uk/news/uk/politics/the-tories-benefit-cap-is-social-justice-in-action-says-iain-duncan-smith-10280514.html Accepted version (pre-copy editing) Published in Journal of Poverty and Social Justice (2017) https://doi.org/10.1332/175982717X14842282011532 First published online 09 February 2017 The Telegraph online, 2013, David Cameron’s speech – in full, 2 October 2013, http://www.telegraph.co.uk/news/politics/david-cameron/10349831/David-Camerons- speech-in-full.html Tomlinson, J, 2008, The 1964 Labour government, poverty and social justice, Journal of Poverty and Social Justice, 16, 2, 135-145 Welshman, J, 2013, Underclass: A History of the Excluded Since 1880 (2nd edition). London: Bloomsbury Wolff, J, 2008 Young, I M, 2008, Justice and the politics of difference, Princeton: Princeton University Press https://doi.org/10.1332/175982717X14842282011532 http://www.telegraph.co.uk/news/politics/david-cameron/10349831/David-Camerons-speech-in-full.html http://www.telegraph.co.uk/news/politics/david-cameron/10349831/David-Camerons-speech-in-full.html 
work_ysyhew5bsfatrhjwglnq6lkdu4	----	PIS_16.indd 211 Tomasz Snarski Sprawiedliwość transformacyjna, filozofia prawa i rozliczanie przeszłości przez demokratyczne państwo prawa W ostatnich latach wielokrotnie podnoszono, że rządy prawa i tzw. standar- dy europejskie uniemożliwiają zgodne z prawami człowieka rozliczenie komuni- stycznej przeszłości w państwach Europy Środkowo-Wschodniej1. Moim zdaniem, jest to przekonanie wynikające z  wniosków prima facie. Nie uwzględnia ono bowiem znaczenia systemu wartości tkwiącego immanentnie w  każdym demo- kratycznym państwie prawa. Doświadczenia państw, które przeszły gwałtowny proces transformacji ustrojowej, pokazują, że państwo prawa, ograniczając roz- liczenie przeszłości, jednocześnie działanie takie w ogóle umożliwia2. Standardy demokratycznego państwa prawa są przecież najważniejszym argumentem przemawiającym za koniecznością rozliczenia zbrodni minionych reżimów. Na duże możliwości w  tym zakresie zwrócił uwagę Trybunał Konstytucyjny, przyj- mując w  swoim orzecznictwie, iż „przejście od państwa autorytarnego do pań- stwa prawa może wyjątkowo przybierać formy, które nie miałyby uzasadnienia w  normalnych warunkach”3. W procesie rozliczania przeszłości społeczeństwo może zatem wykorzystywać instytucje wychodzące poza klasyczne formy praw- ne, co jest uzasadnione kontekstem dziejowym oraz aksjologicznym odcięciem się państwa od założeń dawnego systemu. Nie chodzi tutaj w żadnym wypadku o  „sprawiedliwość zwycięzców” za wszelką cenę4. Jednak nie należy pojmować rządów prawa w sposób, który uniemożliwia naprawienie historycznych krzywd i niesprawiedliwości. W rezultacie musimy nauczyć się poszukiwania kompromi- su między zasadą rządów prawa a  koniecznością wymierzenia sprawiedliwości 1 Zasada państwa prawa bywa używana jako argument przemawiający za przyjęciem bądź odrzu- ceniem określonego rozwiązania, zob. M. Barańska, Zasada państwa prawnego jako argument przetargowy w dyskursie politycznym na temat lustracji, „Studia Socjologiczne” 2007, nr 2 (185), s. 83–116. 2 Na temat możliwości i ograniczeń polityki wobec przeszłości, związanych z paradygmatem pań- stwa prawa zob. J. Zajadło, Polnischer sonderweg?, „Ius et Lex” 2003, nr (II) 1, s. 378–381. 3 Orzeczenie Trybunału Konstytucyjnego RP z  9 listopada 1993 r., K 11/93*, OTK 1993, nr 2, poz. 37, to samo zdanie przywołano w  późniejszym Wyroku TK z  24 czerwca 1998 r., K 3/98*, OTK ZU 1998, nr 4, poz. 52. 4 Na temat dylematu między sprawiedliwością a  zemstą w  procesie rozliczania przeszłości zob. A. Michnik, V. Havel, Justice or Revenge?, „Journal of Democracy” 1993, t. IV, nr 1, s. 20–27. Tomasz Snarski 212 zbrodniarzom i funkcjonariuszom dawnego reżimu oraz zadośćuczynienia wyrzą- dzonemu w  przeszłości złu. Sprawa oczywiście nie jest łatwa, wręcz przeciwnie – wymaga kompleksowego podejścia uwzględniającego dorobek nauki, doświad- czenia przeszłości oraz rzeczywistość społeczną konkretnego okresu transforma- cji. Nieodłącznymi elementami procesu rozliczania przeszłości są: dylematy filo- zoficznoprawne, uwarunkowania polityczne, ekonomiczne i społeczne. Z uwagi na złożoność pojawiających się problemów rozliczanie przeszłości oznacza przy- jęcie celowej polityki wobec przeszłości, czyli zaplanowania i uargumentowania konsekwentnego katalogu działań państwa, dotyczących odnoszenia się do histo- rii instytucji publicznych, społeczeństwa i systemu prawnego5. W Polsce zabrakło rzetelnego i  wszechstronnego odniesienia się systemu prawnego do przeszłości6. Nie stworzono przemyślanej i  skonkretyzowanej polityki wobec przeszłości, która powinna być świadomym, a zarazem natural- nym działaniem państwa wobec własnej historii7. Brakuje szerokiego dyskursu naukowego, poświęconego problemom transformacji ustrojowej, a jednocześnie zbyt często stanowienie aktów prawnych w tej dziedzinie traktuje się wyłącznie instrumentalnie. Tymczasem polityka wobec przeszłości powinna dążyć do zre- alizowania pięciu podstawowych celów: ustalenia prawdy, wymierzenia kary, potępienia moralnego, zadośćuczynienia za krzywdy, kultywowania pamięci8. Ośmielam się postawić tezę, że w procesie polskiej transformacji ustrojowej nie zrealizowaliśmy w pełnym zakresie żadnej z wyżej wymienionych spraw9. Trze- ba też podkreślić, że rozliczanie przeszłości to nie tylko skazanie byłych funk- cjonariuszy i ich mocodawców, lecz także aksjologiczne zerwanie z założeniami państwa komunistycznego, moralne potępienie zbrodniarzy oraz ich sprawied- liwe osądzenie, zbadanie prawdy historycznej, co wiąże się niejednokrotnie z  dostrzeżeniem skomplikowanych ludzkich historii. Odniesienie się państwa do przeszłości może i powinno dokonywać się za pomocą prawa konstytucyjne- go, administracyjnego i, last but not least, cywilnego. Jest zresztą działaniem, w którym prawo zderza się z polityką, historią, moralnością, a niekiedy nawet ze zdrowym rozsądkiem10. 5 Zob. J. Zajadło, Polityka wobec przeszłości – zwykła substytucja pojęć czy semantyczna rewolu- cja?, „Etyka”, Instytut Filozofii Uniwersytetu Warszawskiego (w druku); J. Kochanowski, Rozliczenie z przeszłością w Polsce, „Ius et Lex” 2003, nr (II) 1, s. 227–240. 6 Zob. B. Wildstein, Dekomunizacja, której nie było, Kraków 2000. 7 Tzw. polityka historyczna państwa jest zjawiskiem wysoce kontrowersyjnym; zob. Pamięć jako przedmiot władzy, red. P. Kosiewski, Warszawa 2008. Pragnę jednak zaznaczyć, że nie chodzi tu o politykę historyczną rozumianą wąsko, lecz raczej o uwzględnienie w procesie transformacji ustro- jowej zaplanowanego działania państwa wobec przeszłości. W takim ujęciu polityka historyczna jest jedynie częścią polityki wobec przeszłości, w której z kolei najważniejsza jest wszechstronna (praw- na, ekonomiczna, polityczna) reakcja demokratycznego państwa prawa na bezprawie wyrządzone w przeszłości. 8 Na ten temat zob. J. Zajadło, Odpowiedzialność za Mur. Procesy strzelców przy Murze Berliń- skim, Gdańsk 2003, s. 76–111. 9 Por. Z. Krasnodębski, O genezie III Rzeczypospolitej raz jeszcze, publikacja dostępna w Interne- cie: http://www.omp.org.pl/index.php?module=subjects&func=viewpage&pageid=494 [przeglą- dano: 16 IV 2009 r.]. 10 Na temat zderzenia prawa z historią zob. J. Zajadło, Krew u stóp Muru [w:] Fascynujące ścieżki filozofii prawa, red. J. Zajadło, Warszawa 2008, s. 154–164. Sprawiedliwość transformacyjna 213 Oponenci rozliczania przeszłości tłumaczą często, że jest ono niepotrzebne, że powinniśmy patrzyć w  przyszłość, oddzielając „grubą kreską” to, co było. Największe emocje wzbudza zwłaszcza wykorzystanie prawa karnego, w  tym osądzenie zbrodniarzy poprzedniego reżimu. Kwestionowany jest w ogóle sens ścigania karnoprawnego. Często wskazuje się na przykład żołnierza, który „tylko wykonywał rozkazy”, a zatem nie może być mowy o jego odpowiedzial- ności karnej z uwagi na względny kontratyp rozkazu wojskowego (okoliczność wyłączającą bezprawność kryminalną czynu)11. Byli funkcjonariusze oraz ich mocodawcy niejednokrotnie podnoszą, że działali zgodnie z powszechnie obo- wiązującym wówczas prawem, co w konsekwencji wyklucza możliwość pociąg- nięcia ich do jakiejkolwiek odpowiedzialności prawnej, w tym karnej. Poza tym pojawiają się problemy związane z przedawnieniem, powodującym zaniechanie ścigania karnego czy bezskuteczność dochodzenia roszczeń cywilnoprawnych. Kolejną kwestią jest niechęć organów ścigania do podejmowania postępowań, które ze swojej istoty mają nie tylko charakter prawny, ale i polityczny. Mimo tych zastrzeżeń wydaje się, że demokratyczne państwo prawa ma wręcz obowią- zek ścigania karnego przynajmniej najcięższych zbrodni popełnionych w minio- nym okresie. Okazuje się też, że wielokrotnie działania podejmowane przez funkcjonariuszy aparatu państwowego były czynami nie tylko niezgodnymi z elementarnymi zasadami praw człowieka czy standardami prawa międzynaro- dowego, lecz także z ówcześnie obowiązującym prawem pozytywnym. W kon- sekwencji argumentem przemawiającym za ściganiem karnym jest nie tylko obowiązek osądzenia najpoważniejszych naruszeń praw człowieka, wynikający chociażby z zasady rządów prawa i prawa międzynarodowego publicznego12, ale również obowiązek osądzenia naruszania obowiązujących w poprzednim syste- mie przepisów prawa. Warto tylko wspomnieć, że Europejski Trybunał Praw Człowieka nie dopatrzył się w orzeczeniach niemieckich sądów w tzw. Mauers- chützenprozesse13, na mocy których skazano funkcjonariuszy NRD za zbrodnie minionego reżimu, naruszenia Europejskiej Konwencji Praw Człowieka, w tym fundamentalnej zasady nullum crimen sine lege poenali anteriori (nie ma prze- stępstwa bez ustawy obowiązującej w czasie jego popełnienia)14. Demokratyczne państwo prawa, jeżeli tylko istnieje ku temu wola społeczna i polityczna, dysponuje narzędziami do rozliczenia zbrodni z przeszłości, nawet 11 Na temat kontratypu rozkazu w prawie karnym zob. J. Warylewski, Prawo karne. Część ogólna, Warszawa 2005, s. 239–241; o  problemach związanych z  retroakcyjnością prawa karnego oraz odpowiedzialnością za wykonanie rozkazu zob. J. Zajadło, Po co prawnikom filozofia prawa?, War- szawa 2008, s. 150–194; trzeba również wspomnieć, iż część doktryny uznaje, że rozkaz nie jest kontratypem, lecz okolicznością wyłączającą zawinienie. 12 Por. D.F. Orentlicher, Obowiązek ukarania poważnych naruszeń praw człowieka związanych z poprzednim reżimem, „Ius et Lex” 2003, nr (II) 1, s. 15–52. 13 Niemieckie pojęcie Mauerschützenprozesse oznacza „procesy strzelców przy Murze”. W lite- raturze nadaje mu się jednak szersze znaczenie, oznaczające rozliczenie karne szerokiego kręgu osób odpowiedzialnych za „akty przemocy na granicy niemiecko-niemieckiej”, tj. bezpośrednich strzelców – żołnierzy, dowódców różnych szczebli oraz politycznych decydentów; zob. J. Zajadło, Odpowiedzialność za Mur…, s. 12. 14 Por. I.C. Kamiński, Skargi do Europejskiego Trybunału Praw Człowieka wniesione przez funk- cjonariuszy odpowiedzialnych za śmierć uciekinierów z  NRD, „Przegląd Sądowy” 2001, 11–12, s. 224–246. Tomasz Snarski 214 tych, których zidentyfikowanie w przepisach karnych wymaga niezwykle trud- nych zabiegów interpretacyjnych. Potrzebna jest tylko (może trzeba napisać: aż) chęć poszukiwania możliwości prawnych i  roztropne, zaplanowane dzia- łanie będące polityką wobec przeszłości. Bez tego o  prawdziwym rozliczaniu przeszłości nie może być mowy, bo inaczej będzie to jedynie odwet, zemsta czy po prostu wymierzanie sprawiedliwości zwycięzców. Lekceważenie polityki wobec przeszłości i brak aktywności w tej dziedzinie może też doprowadzić do niezamierzonych skutków: zniweczenia zasad sprawiedliwości i reguł państwa prawa, pozostawienia zbrodni bezkarnie i upokorzenia skrzywdzonych. Nie ma to nic wspólnego z  demokratycznym państwem prawa. Polska transformacja, nawet jeżeli już się kończy, potrzebuje świadomego działania wobec przeszłości, które będzie odwoływało się do idei sprawiedliwości. Potrzebuje także, dokony- wanej indywidualnie a zarazem wszechstronnie, oceny dziedzictwa prawnego. Niestety w Polsce nie zdecydowaliśmy się na żaden z przyjętych na świecie modeli traktowania przeszłości. Warto wskazać, że możemy wyróżnić pań- stwa, które proces rozliczenia przeszłości przeprowadziły bardzo skrupulatnie, jak np. Niemcy15, oraz państwa, które oddzieliły przeszłość „grubą kreską”, jak np.  Hiszpania16. Są też kraje, które wybrały drogę pośrednią, np. Republika Południowej Afryki17. Jednym z elementów świadomej polityki wobec przeszłości może być wyko- rzystanie instrumentarium prawa. Pojawia się wtedy problem określenia granic między formalistycznym podejściem do prawa a  będącą nieodłączną częścią każdego systemu prawnego zasadą sprawiedliwości. Rudymentarne znaczenie ma odpowiedź na pytanie: czy w celu zagwarantowania sprawiedliwości powin- niśmy uwzględniać szczególny kontekst spraw związanych z rozliczaniem prze- szłości, czy wręcz przeciwnie – takie ujęcie doprowadzi do zniweczenia spra- wiedliwości? Czy istota sprawiedliwości jest niezależna od zmian w systemach normatywnych, czy też podlega wraz z nimi transformacji? Co zrobić w sytua- cjach, w których treść systemu prawnego zaprzecza istocie intuicyjnie pojmowa- nej sprawiedliwości? Czy prawo i sprawiedliwość są rzeczywiście oddzielnymi pojęciami18? Jak zagwarantować sprawiedliwość w procesie rozliczania przeszłości? Czy dotyczy on jedynie wąsko pojmowanych, gwałtownych zmian systemów praw- no-politycznych, czy także ewolucyjnego rozwoju wrażliwości na historycz- nie wyrządzone krzywdy? Czy sprawiedliwość wymaga od nas naprawienia wszelkiego wyrządzonego zła i  pociągnięcia do odpowiedzialności prawnej 15 Niezmiernie ciekawe porównanie tych modeli: Strafrecht in Reaktion auf Systemunrecht. Vergleichende Eiblicke in Transitionprozesse, red. A. Eser, J. Arnold, Freiburg im Breisgau 2002, s. 14–18. 16 Zob. P. Aquilar, Collective Memory of the Spanish Civil War: The Case of the Political Amnesty in the Spanish Transition to Democracy, „Democratization” 1997, vol. 4, nr 4, s. 88–109. 17 Na ten temat zob. M. Smolak, Ład społeczny i sprawiedliwość tranzycyjna – polskie i południo- woafrykańskie doświadczenia, „Gdańskie Studia Prawnicze” 2002, t. 9, s. 269–276; K. Asmal, Truth, Reconciliation and Justice: The South African Experience in Perspective, „The Modern Law Review” 2000, t. 63, nr 1, s. 1–24. 18 Niejednokrotnie słowo ius utożsamia się przecież ze sprawiedliwością, zwłaszcza w  języku angielskim,w którym słowo justice pochodzi bezpośrednio od słowa ius. Sprawiedliwość transformacyjna 215 osób winnych, czy może raczej pewne problemy należy zakwalifikować jako niepodlegające naprawieniu? Czy rządy prawa pozwalają na uznanie ważności wcześniej istniejącego prawa i usprawiedliwianie zbrodni popełnionych w prze- szłości, czy też raczej wymagają odrzucenia nikczemnego ustawodawstwa i  pociągnięcia sprawców do prawnej odpowiedzialności za elementarne naru- szenia praw człowieka? Relacje między historią a sprawiedliwością zazwyczaj są zdominowane przez ideę przeszłości jako odległej i nieobecnej, a w konsekwencji nieodwracalnej19. Nie oznacza to jednak, że współczesność jest całkowicie niezależna od historii. Owszem, przeszłości nie można przezwyciężyć20, można jednak przyjąć okre- śloną wobec niej postawę. Właśnie owo odniesienie się państwa do prawnego dziedzictwa stanowi jeden z najważniejszych problemów prawnych współczes- ności. Warunkiem sine qua non takiego działania jest poprzedzający je racjonal- ny dyskurs, uzasadniający przyjęcie określonych rozstrzygnięć. Prawo może i  powinno być narzędziem odnoszenia się demokratycznego państwa do przeszłości21. Sprawy związane z prawnym rozliczeniem przeszłości dotyczą właściwie wszystkich fenomenów obowiązywania prawa, tj. tworze- nia (ewentualna ingerencja ustawodawcy), stosowania (rola sądów), wykładni (problem oceny przeszłego systemu prawnego pod kątem współczesnych war- tości), obowiązywania (kwestia prawnego charakteru ustaw nazistowskich: czy w  ogóle można je uznać za obowiązujące prawo?) i  przestrzegania prawa (czy możemy odmówić podporządkowania się zbrodniczemu prawu systemu totali- tarnego?). Odpowiedzią na dylematy prawne związane z  procesem rozliczania prze- szłości stała się koncepcja transitional justice (sprawiedliwości transformacyj- nej22). Przyjmuje się, iż kształtuje ona systemowe odniesienie się do przeszłości w państwach przechodzących proces transformacji ustrojowej. Sprawiedliwość transformacyjna posiada własny aparat organizacyjny, by wymienić chociażby specjalne instytucje pojednawcze czy wymierzające sprawiedliwość (sądy, róż- nego rodzaju komisje) i ustawodawstwo (ustawy lustracyjne, dekomunizacyjne). 19 B. Bevernage, Time, Presence, and Historical Injustice, „History and Theory” 2008, t. 47, nr 2, s. 149. 20 „To, co się wydarzyło, nie może być przezwyciężone. Można to pamiętać, zapomnieć lub zwal- czać. Można się mścić, karać, wybaczać i  żałować. Można to powtarzać, świadomie lub nieświa- domie. Możemy być dotknięci tego skutkami tak, że nie wpływa to lub nie wpływa w  określony sposób lub że właśnie wpływa w określony sposób na teraźniejszość lub przyszłość. Ale co się stało, to się stało. Przeszłość jest nieosiągalna i nie można jej zmienić” (B. Schlink, Vergangenheitsschuld und gegenwärtiges Recht, Frankfurt am Main 2002, s. 89; podaję według polskiego tłumaczenia w: J.  Zajadło, Odpowiedzialność za Mur..., s. 79). 21 Przekonanie o potrzebie wykorzystania instrumentarium prawnego w demokratycznym państwie prawa jest oczywiście wyrazem określonego stanowiska wobec funkcji prawa. Formułowanie opiso- wych sądów o prawie i jego działaniu możemy znaleźć w wielu wypowiedziach doktryny prawa, np. „Prawo służy rozwiązywaniu bieżących potrzeb” (B. Zdziennicki, Ochrona konstytucyjnych praw i wolności przy zmianach w porządku prawnym. Znaczenie czynnika czasu dla zasady praworządno- ści, „Przegląd Sejmowy” 2008, R. 16, 5(88), s. 41); na temat funkcji prawa zob. I. Bogucka, Funkcje prawa. Analiza pojęcia, Zakamycze 2000. 22 W literaturze polskiej spotykamy kilka tłumaczeń angielskiego pojęcia transitional justice: spra- wiedliwość transformacyjna, sprawiedliwość tranzycyjna, sprawiedliwość tranzytywna, sprawiedli- wość okresu przejściowego. W tym artykule używane są zamiennie. Tomasz Snarski 216 W literaturze przedmiotu brakuje jednoznacznej, ustalonej i akceptowanej jeżeli nie przez wszystkich, to przynajmniej przez większość autorów koncepcji tran- sitional justice23. Również etymologia pojęcia nie jest do końca jasna24. Uznaje się, iż po raz pierwszy w doktrynie pojawiło się ono na początku lat dziewięć- dziesiątych XX wieku25. Od tego czasu, mimo ogromnej liczby publikacji pró- bujących sprecyzować jego zakres znaczeniowy, w dalszym ciągu stanowi ono pojęcie niedoprecyzowane, będące nadal przedmiotem analizy naukowej26. Pierwotnie kojarzono sprawiedliwość transformacyjną prawie wyłącznie z  karnoprawnym rozliczeniem zbrodni reżimów niedemokratycznych przez powstałe na ich gruzach państwa demokratyczne27. Owo działanie stanowiło bowiem bezpośredni skutek zmiany fundamentalnych założeń w  ramach kon- cepcji sprawiedliwości28. Z czasem dostrzeżono złożoność i różnorodność prob- lemów prawnych związanych z  rozliczaniem przeszłości, a  jednocześnie ich pojawianie się nie tylko w  państwach, które przechodziły gwałtowny proces transformacji, ale także w wielu demokracjach, które w przeszłości miały znacz- ne problemy z przestrzeganiem praw człowieka. Sprawiedliwość transformacyjna postrzegana jest obecnie dwukierunkowo. Z jednej strony odnosi się do relatywnie krótkiego okresu historycznej, gwał- townej i  rewolucyjnej transformacji społeczeństw i  państw niedemokratycz- nych. Z  drugiej zaś pojawia się też wtedy, gdy demokratyczne państwo i  spo- łeczeństwo, zarówno o  świeżej, jak i  utrwalonej demokracji, podejmują próbę uporania się z niesprawiedliwą przeszłością, kiedy istnieje w nich świadomość krzywd wyrządzonych w  przeszłości i  potrzeba ich rozliczenia w  instytucjo- nalnych, prawnych i  politycznych ramach demokratycznego państwa prawa29. Zjawisko transitional justice dotyczy więc ogólnie pojętego problemu naprawie- nia niesprawiedliwej przeszłości, niezależnie od jego jakościowego, ilościowego, czasowego, przestrzennego czy problemowego wymiaru. Ważne jest przy tym zastrzeżenie, że odwołanie się do sprawiedliwości transformacyjnej stanowi co do zasady odpowiedź na naruszanie praw człowieka30. 23 Szerzej na ten temat zob. artykuł D. Dyzenhausa przedstawiający aż 11 różnych pozycji mono- graficznych poświęconych transitional justice: D. Dyzenhaus, Transitional Justice, „International Journal of Constitutional Law” 2003, vol. 1, nr 1, s. 163–175. 24 L. Bickford, Transitional justice [w:] The Encyclopedia of Genocide and Crimes Against Humani- ty, Macmillan Reference USA, 2004, vol. 3, s. 1045–1047. 25 Po raz pierwszy terminem transitional justice posłużyła się N.J. Kritz w trzytomowej publikacji poświęconej problemowi procesów rozliczania przeszłości; zob. Transitional Justice: How Emerging Democracies Reckon with Former Regimes, red. N.J. Kritz, Washington (DC) 1995. 26 Por. np. A.L. Boranie, Transitional Justice: A Holistic Interpretation, „Journal of International Affairs”, Fall/Winter 2006, s. 17–27; J.D. Ohlin, On the Very Idea of Transitional Justice, „The Whitehead Journal of Diplomacy and International Relations”, Winter/Spring 2007, s. 51–68. 27 R. Siegel, Transitional justice: a Decade and Debate and Experience, „Human Rights Quarterly” 1998, nr 2, s. 433. 28 Zob. R.G. Teitel, Rządy prawa okresu transformacji, „Ius et Lex” 2003, nr (II) 1, s. 56. 29 L. Bickford, Transitional justice..., s. 1045–1047. 30 Oficjalny publikator informacyjny International Center of Transitional Justice, What is Trans- itional Justice? 2008; dostępny na stronie internetowej: http://www.ictj.org/static/TJApproaches/ WhatisTJ/ICTJ_WhatisTJ_pa2008_.pdf, [przeglądano 15 X 2009 r.], tłumaczenie własne. Sprawiedliwość transformacyjna 217 Zjawisko sprawiedliwości transformacyjnej zidentyfikowano w  wielu częś- ciach świata. Wymienić tu można następujące obszary: państwa Afryki (Republikę Południowej Afryki, Sierra Leone), blok państw postkomunistycz- nych w Europie (Polska, Węgry, Czechy, Bułgaria, Niemcy, Rosja, Serbia), pań- stwa Ameryki Łacińskiej (Argentyna, Chile). W wąskim ujęciu sprawiedliwość transformacyjna dotyczy karnoprawnego rozliczania zbrodni reżimowych w państwach przechodzących proces transfor- macji ustrojowej. Są cztery podstawowe modele polityki wobec przeszłości: – rezygnacja z rozliczania przeszłości, którą przyjęły Hiszpania, Chile, Bia- łoruś i Rosja; – warunkowa rezygnacja ze ścigania karnego, powiązana z uruchomieniem specjalnych instytucji mediacyjnych, czego przykładem może być Republika Południowej Afryki; – ograniczone, cząstkowe dążenie do wymierzenia odpowiedzialności kar- nej, przyjęte w Bułgarii, Polsce, Argentynie, Grecji, Portugalii czy na Węgrzech; – konsekwentne ściganie zbrodniarzy poprzedniego reżimu, na które zdecy- dowali się Niemcy31. W przeszłości odnajdujemy wiele przykładów historycznych krzywd i  nie- sprawiedliwości wyrządzonych jednym narodom przez inne narody, obywate- lom przez ich własne państwa, jednostkom przez jednostki. Związane z  nimi są liczne procesy karne i restytucyjne. Wśród istotnych prawnych sytuacji roz- liczenia się ze „złą” przeszłością wyróżnić możemy: rozwiązywanie problemów z  przeszłości między narodami, państwami, społecznościami, które można określić mianem rozliczeń zewnętrznych. Są to: 1) rozliczenia (pozostałości) po II wojnie światowej, 2) rozliczenia będące następstwem kolonializmu, rozli- czanie zbrodni totalitaryzmów wobec ich własnych obywateli, jednostek i spo- łeczności, czego przykładem mogą być tzw. procesy strzelców przy Murze Ber- lińskim, a  które można określić jako rozliczenia wewnętrzne, odbywające się w  ramach danego państwa, złożone sprawy wymagające rozliczeń wewnętrz- nych i zewnętrznych. Sprawiedliwość tranzycyjna może dotyczyć różnych problemów, nie tylko o  proweniencji karnoprawnej. Reakcją na naruszenia praw człowieka w  prze- szłości są współcześnie zarówno próby pociągnięcia do odpowiedzialności kar- nej ich bezpośrednich sprawców, także ich mocodawców, jak i podniesienie kwe- stii zbiorowej odpowiedzialności cywilnoprawnej państwa z tytułu wyrządzonej szkody lub krzywdy. Zjawisko cywilnoprawnej odpowiedzialności za historycz- nie wyrządzone krzywdy w państwach o ustabilizowanym ustroju demokratycz- nym związane jest ponadto z  rozwojem wrażliwości społecznej na standardy dotyczące praw człowieka. Roszczenia związane z  negatywnym doświadcze- niem historycznym pojawiają się nie tylko w państwach przechodzących proces transformacji ustrojowej, ale też w  Stanach Zjednoczonych, Wielkiej Brytanii, Australii, Nowej Zelandii czy Kanadzie32. Wiele z  tych państw musi uporać się z  marginalizacją, wykorzystywaniem, a  niejednokrotnie i  ludobójstwem 31 Zob. J. Zajadło, Polnischer …, s. 370–371. 32 M. Chowdry, Ch. Mitchell, Responding to Historic Wrongs: Practical and Theoretical Problems, „Oxford Journal Legal Studies” 2007, vol. 27, nr 2, s. 339–354. Tomasz Snarski 218 społeczności autochtonicznych33. Problem rozliczania przeszłości pojawia się w każdym państwie, które podejmuje próbę zrozumienia, wyjaśnienia i napra- wienia politycznie złej przeszłości34. Zjawisko sprawiedliwości transformacyjnej ma szeroki zasięg terytorialny i  problemowy, obejmuje liczną grupę państw i  dotyczy wielu zjawisk. Według typologii przedstawionej przez R.G. Teitel, sprawiedliwość transformacyjna obejmuje: – criminal justice (sprawiedliwość karną), – historical justice (sprawiedliwość historyczną), – reparatory justice (sprawiedliwość restytucyjną), – administrative justice (sprawiedliwość administracyjną), – constitutional justice (sprawiedliwość konstytucyjną)35. W ciągu kilku dekad sprawiedliwość transformacyjna stała się istotnym zagadnieniem badawczym, zwłaszcza w  dziedzinie nauk prawnych. Problemy badawcze dotyczą: kwestii ogólnych36, specjalnych instytucji publicznych powo- łanych do osiągnięcia celów transformacji, np. komisji prawdy i  pojednania37, praw człowieka38, problematyki karnoprawnej39, zagadnień cywilistycznych (odszkodowania, zadośćuczynienia, restytucje)40, sporów politycznych (lustracja, dekomunizacja)41. Badania nad transitional justice mają charakter interdyscypli- narny, a ich iunctim stanowi refleksja filozoficznoprawna. 33 Na temat różnych problemów tego typu zob. E. Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices, Baltimore–London 2000. 34 Na temat roli prawa w społeczeństwach podejmujących próbę wydostania się z brutalnej prze- szłości zob. Ch. Bell, C. Campell, F. Ni Aloain, Justice Discourses in Transition, „Social & Legal Studies” 2004, vol. 13 (3), s. 305–328. 35 R.G. Teitel, Transitional justice, New York–Oxford 2002, s. 27–211; idem, Transitional Justice Gene- alogy, „Harvard Human Rights Journal” 2006, vol. 16, s. 69–94; R.G. Teitel, The Law and Politics of Contemporary Transitional Justice, „Cornell International Law Review” 2005, vol. 38, s. 837–862. 36 Zob. M. Albon, The Project on Justice in Transition, New York 2004; Dealing with the Past: Truth and Reconciliation in South Africa, red. A. Boraine, R. Scheffer, Cape Town 1994; R.G. Teitel, Transitional… 37 Zob. Facing the Thruth: South African Faith Communities and the Thruth and Reconciliation Commission, red. J. Cochrane, J.W. De Gruchy, S. Martin, Cape Town 1999; S. Cohen, Justice in Transition? Prospects for a Palestinian – Israeli Truth Commission, „Middle East Report” 1995, nr 2–5. 38 Zob. R. Bacic, Dealing with the Past: Chile – Human Rights and Human Wrongs, „Race & Class” 2002, R. 44, nr 1, s. 17–31; J. Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints, „Hamline Law Review” 1990, R. 13, nr 3, s. 623–660. 39 Zob. P. Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atroci- ties?, „American Journal of International Law” 2001, 95, nr 1, s. 7–31; A. MacAdams, The Hone- cker Trial: The East German Past and the German Future, „Review of Politics” 1996, R. 58, nr 1, s. 53–80. 40 Zob. Calling Power to Account. Law, Reparations and the Chinese Canadian Head Tax Case, red. D. Dyzenhaus, M. Moran, Toronto–Buffalo–London 2005; J. Edelstein, Rights, Reparations and Reconciliation: Some Comparative Notes, Johannesburg 1994; E. Barkan, The Guilt...; State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, red. A. Randelzhofer, Ch. Tomuschat, Hague 1999. 41 Zob. P. Bren, Lustration in the Czech and Slovak Republics, „RFE/RL Research Reports” 1993, nr 29, s. 16–22; M.  Królikowski, Lustracja, projekt nowelizacji, druk sejmowy 1258, Warszawa 2007, s. 5, http://parl.sejm.gov.pl/WydBAS.nsf/0/FB5F3727905FD5FFC125726E004EF3A6/$file/ ppc_1-7%5B1%5D.pdf [przeglądano 16 X 2009 r.]. Sprawiedliwość transformacyjna 219 Dla szeroko rozumianego prawnego procesu rozliczania przeszłości charakte- rystyczne są przede wszystkim spory o dopuszczalne granice tego procesu, możli- wość uznania obowiązującego w przeszłości ustawodawstwa za bezprawne, wyj- ście poza klasyczne, pozytywistyczne ujęcie prawa stanowionego, wreszcie o rolę sądów i władzy ustawodawczej w tym procesie. Istnieje kilka określeń tej formuły sprawiedliwości: transitional justice, retro- spective justice (sprawiedliwość retrospektywna), Vergangenheitsbewältigung (przezwyciężanie przeszłości)42. Wskazują one na specyficzne uwarunkowania i ukierunkowania polityki oraz wynikający z nich stosunek do historii, subtelne lawirowanie między akcentami położonymi na przeszłość, teraźniejszość i przy- szłość. Problemy związane z transitional justice należą zresztą nie tylko do nauk prawnych, lecz także do teorii polityki, socjologii czy filozofii. Rozwojowi badań nad omawianym pojęciem sprzyja fakt, że w  2001 r. powstało w  Nowym Jorku Międzynarodowe Centrum Sprawiedliwości Tranzycyjnej (International Center for Transitional Justice)43. Ponadto na całym świecie rozwijają się ośrodki nauko- wo-badawcze, zajmujące się sprawiedliwością transformacyjną, jak np. African Transitional Justice Research Network44, Institute for Justice and Renonciliation45 czy Transitional Justice Institute – University of Ulster46. W ten sposób transitio- nal justice stała się nie tylko pojęciem z dziedziny filozofii prawa, lecz sui generis instytucją47. O aktualności i znaczeniu problemu we współczesnej nauce świadczy również wydawanie przez wydawnictwo Oxford University Press czasopisma „The International Journal of Transitional Justice”, poświęconego wyłącznie zagadnien- iom sprawiedliwości związanej z procesami rozliczania przeszłości48. Spróbujmy w tym miejscu wyznaczyć zakres znaczeniowy terminu transitio- nal justice, odpowiadając na pytanie o istotę zjawiska. Czym jest owa sprawied- liwość okresu przejściowego z  punktu widzenia prawa? Wiadomo na pewno, czym nie jest – zwyczajnym wymierzaniem sprawiedliwości. Przecież każdy pro- ces cywilny czy karny jest w  zasadzie rozliczaniem jakiejś przeszłości. Ktoś coś ukradł bądź nie oddał pożyczonych pieniędzy. Sąd bada, czy coś się wydarzyło oraz decyduje o skutkach prawnych płynących z takiego, a nie innego ustalenia faktów mających miejsce w przeszłości49. Nie o takie – typowe stosowanie prawa tutaj chodzi. Rudymentarnym desygnatem wyróżniającym zjawisko transitional justice jest szeroko rozumiane przekształcenie systemu normatywnego, z którym wiąże się zmiana fundamentalnych założeń sprawiedliwości. To, co dotychczaso- we państwo/prawo uznawało za sprawiedliwe, staje się z punktu widzenia nowe- go państwa/prawa niesprawiedliwe. Możliwa jest również taka sytuacja, w któ- rej państwo, gdzie prawo było fikcją, zmienia się w rzeczywiste państwo prawa. Samemu prawu natomiast przywraca się jedno z  jego podstawowych zadań, 42 Zob. J. Zajadło, Po co prawnikom..., s. 57. 43 Więcej informacji na temat tej instytucji zob.: http://www.ictj.org/en/index.html [przeglądano 15 X 2008 r.]. 44 http://www.transitionaljustice.org.za/ [przeglądano 14 X 2009 r.]. 45 http://www.ijr.org.za/ [przeglądano 14 X 2009 r.]. 46 http://www.transitionaljustice.ulster.ac.uk/ [przeglądano 14 X 2009 r.]. 47 J. Zajadło, Polityka wobec przeszłości... 48 Strona internetowa czasopisma: http://ijtj.oxfordjournals.org/ [przeglądano 15 X 2008 r.]. 49 Przykładowo na temat stosowania przepisów ustawy karnej zob. J. Warylewski, Prawo karne..., s. 119. Tomasz Snarski 220 jakim jest zadośćuczynienie za zaistniałe niesprawiedliwości. W takich momen- tach trzeba zachować szczególną ostrożność, ponieważ „prawo, które nie respek- tuje zasad sprawiedliwości, jest prawem moralnie nagannym, lecz – z  drugiej strony – prawo, które dąży do realizacji wyłącznie zasady sprawiedliwości kosz- tem wszelkich innych wartości społecznych, także nie zasługuje na pochwałę”50. Błędem byłoby jednak utożsamianie zjawiska transitional justice jedynie z  pro- stym problemem temporalnego obowiązywania prawa czy jego oceną z punktu widzenia sprawiedliwej bądź niesprawiedliwej treści. Transitional justice dotyczy napięć zachodzących między trzema głównymi elementami idei prawa: bezpie- czeństwem, celowością i  sprawiedliwością51. Z tego punktu widzenia pojęcie sprawiedliwości jest treścią zjawiska transitional justice, celowość dotyczy odpo- wiedzi na pytanie o jego sens, np. czy zasada rządów prawa wymaga naprawienia błędów niedemokratycznej przeszłości, natomiast pojęcie bezpieczeństwa doty- czy jego formy, a zatem: granic, metod i możliwości. Za należącą do transitional justice uznaję w zasadzie każdą próbę rozrachun- ku współczesnego demokratycznego państwa prawa z przeszłością, dokonywaną także za pomocą prawa, a  będącą rezultatem zmiany paradygmatu sprawied- liwości zarówno w  systemie prawa, jak i  poza tym systemem. Możliwa jest tu sytuacja, w  której dawny system normatywny stał w  całkowitej sprzeczności z  powszechnie uznanymi wartościami moralnymi społeczeństwa, lub też taka, w której to społeczeństwo samo przewartościowało swój system wartości. Jeżeli w rezultacie wykorzystania prawa do rozliczenia przeszłości powstaje stan szcze- gólnego, wyrazistego napięcia między bezpieczeństwem, celowością i sprawiedli- wością, mamy do czynienia z transitional justice. Jeżeli jednak napięcie pomiędzy tymi trzema elementami idei prawa nie cechuje się specjalną intensywnością ani wyrazistością, zjawisko transitional justice nie występuje. Oczywiście, taka ocena może dotyczyć jedynie konkretnej sytuacji. Można powiedzieć, że częścią ogólnie pojętej sprawiedliwości, będącej imma- nentną cechą państwa demokratycznego, jest sprawiedliwość odnosząca się do przeszłości, określana jako sprawiedliwość tranzycyjna. Jest to jednak sprawied- liwość szczególnego rodzaju. Jej zadaniem jest zniwelowanie skutków narusza- nia praw człowieka, bezprawnych działań, zadośćuczynienie pokrzywdzonym, przywrócenie ładu moralnego, wyrównanie krzywd. Owe działania muszą jed- nak pozostać w zgodzie z bezpieczeństwem i celowością w prawie. W tym miej- scu pojawia się zasadnicza kontrowersja w  rozliczaniu przeszłości. Podnosi się bowiem, że nie wolno negować mocy obowiązującej przeszłego prawa tylko dla- tego, iż obecnie uznajemy je za niesprawiedliwe i  zbrodnicze, a  w  konsekwen- cji zasadnie twierdzić, że wszelkie przeszłe działania totalitarnego państwa były w istocie swojej bezprawne. Nie ma zgody co do tego, czy możemy retroaktyw- nie stosować nasz system wartości, także prawnych, do oceny działań w innym otoczeniu prawnym i aksjologicznym. 50 Cyt. za. W. Sadurski, Teoria sprawiedliwości. Podstawowe zagadnienia, Warszawa 1988, s. 266. 51 Szerzej na temat Radbruchowskiej koncepcji prawa opartej na eksponowaniu napięć pomiędzy bezpieczeństwem, celowością i sprawiedliwością zob. J. Zajadło, Bezpieczeństwo – celowość – spra- wiedliwość: antynomie idei prawa, „Gdańskie Studia Prawnicze” 2002, t. 9, s. 233–248; idem, Formuła „Gesetz und Recht”, „Ius et Lex” 2002, nr (I) 1, s. 37–49. Sprawiedliwość transformacyjna 221 Szczególnie problemy te ujawniły się w rozliczeniach po II wojnie światowej. Prowadzone wówczas dyskusje filozoficznoprawne dotyczyły natury i  definicji prawa w  powiązaniu z  problemem jego rażąco niesprawiedliwej treści, albo- wiem „prawo może być źródłem wielkiego zła w tym oczywiście znaczeniu, że zła dokonują ludzie, jednak prawo często przyczynia się do tego zła, ułatwiając jego dokonanie”52. Mówiąc o  rażąco niesprawiedliwym, „złym, zbrodniczym” prawie w  syste- mach prawnych świata zachodniego, najłatwiej wskazać prawo obowiązujące w  III Rzeszy. To właśnie spór o  charakter tamtego ustawodawstwa i  powojen- ne propozycje rozwiązania problemów wynikających z  konieczności rozlicze- nia nazistowskiej przeszłości stały się przyczynkiem do powstania jednej z  naj- ciekawszych koncepcji filozoficznoprawnych, eksponujących napięcia między wymogami pozytywizmu prawniczego a koniecznością uporania się ze zbrodni- czą przeszłością i nieludzkim prawem. W 1946 r. Gustaw Radbruch, poszukując rozwiązania konfliktu między bezpieczeństwem (Rechtssicherheit), celowością (Zweckmäßigkeit) i  sprawied- liwością (Gerechtigkeit) w  prawie, pisał: „Konflikt pomiędzy sprawiedliwością i  bezpieczeństwem prawnym należałoby rozwiązać w  ten sposób, ażeby prawo pozytywne zagwarantowane przez ustawodawstwo i  władzę państwową miało pierwszeństwo również i wtedy, gdy treściowo jest niesprawiedliwe i niecelowe, chyba że sprzeczność ustawy pozytywnej ze sprawiedliwością osiąga taki sto- pień, że ustawa jako »prawo niesprawiedliwe« powinna ustąpić sprawiedliwości. Przeprowadzanie ostrzejszej linii między przypadkami bezprawia ustawowego a ustawami obowiązującymi pomimo swej niesprawiedliwej treści nie jest moż- liwe. Można jednak z całą ostrością wytoczyć linię graniczną: tam, gdzie nigdy nie dąży się do sprawiedliwości, gdzie równość będąca rdzeniem sprawiedliwość odrzucana jest świadomie przy stanowieniu prawa pozytywnego, tam trud- no mówić, że ustawa jest jedynie »prawem niesprawiedliwym«, gdyż traci ona w ogóle naturę prawa. Nie można bowiem prawa w ogóle, a w tym prawa pozy- tywnego, określić inaczej niż jako porządek i stanowienie, które zgodnie ze swą istotą są przeznaczone służyć sprawiedliwości”53. Niniejszy cytat zawiera istotę rozumowania określanego w  filozofii prawa jako formuła Radbrucha, zakłada- jącego, iż norma prawna, która narusza najistotniejsze, rudymentarne normy moralne, nie jest tak naprawdę normą prawną. Możliwie najprostszą definicję ustawowego bezprawia w rozumieniu Radbrucha podaje Robert Alexy: „rażąca niesprawiedliwość nie jest prawem”54. Zdaniem Radbrucha, w  systemach prawnych, w  których prawo stanowio- ne (ustawodawstwo) jest najważniejszym źródłem norm prawnych, sędziowie są zobligowani do stosowania zasad z  niego wynikających. Nie mogą przy tym zwracać uwagi na ich wymowę moralną, nawet gdy akty te przeczą określonemu 52 Cyt. za J. Raz, About Morality and the Nature of Law, 48 AM J. Juris. I, 1 n.1 (2003) za: V.  G.  Curran, Racism’s Past and Law’s Future, „Vermont Law Review” (Spring) 2004, 28 Vt. L. Rev. 683, s. 692 (tłumaczenie własne). 53 Cyt. za G. Radbruch, Ustawowe bezprawie i  ponadustawowe prawo, „Süddeutsche Juristen Zeitung” 1946, według tłumaczenia polskiego w: M. Szyszkowska, Zarys filozofii prawa, Białystok 2000, s. 262. 54 Cyt. za R. Alexy, O pojęciu i naturze prawa, „Ius et Lex” 2007, nr (V) 1, s. 381. Tomasz Snarski 222 systemowi wartości. Jeżeli jednak prawo pozytywne (ustawodawstwo) jest sprzeczne z  zasadami humanitaryzmu i  sprawiedliwości w  stopniu nie do zaak- ceptowania, wówczas sędziowie mogą je pominąć. Możemy tutaj wyróżnić dwa rodzaje norm: takie, których zastosowanie prowadzi do powstania stanu niespra- wiedliwości lub faktycznego bezprawia, oraz takie, które od samego początku nie są prawem55. Stan, w  którym ustawodawstwo jest sprzeczne z  zasadami huma- nitaryzmu i  sprawiedliwości w  stopniu niemożliwym do przyjęcia, ma miejsce wtedy, gdy w  normach prawnych tego ustawodawstwa odnajdziemy świadomy zamiar zaprzeczenia równości, która jest istotą sprawiedliwości. Mamy wówczas do czynienia z ustawowym bezprawiem (gesetzliches Unrecht), które nie zasługuje na miano prawa. Pozytywizm prawniczy czyni nas ponadto bezbronnymi wobec takiego niesprawiedliwego prawa56. Autor koncepcji ustawowego bezprawia kierował ją przeciwko ustawom rażąco sprzecznym z  podstawowymi prawami człowieka, czyli nazistow- skiemu ustawodawstwu III Rzeszy, zezwalającemu na zabijanie w  majestacie prawa57. O  ustawowym bezprawiu mówi się jako o  „nieludzkiej ustawie” (das unmenschliche Gesetz)58. Rażąca sprzeczność prawa pozytywnego ze sprawied- liwością pojawia się wówczas, gdy prawo stanowione nie gwarantuje praw czło- wieka, odrzuca fundamentalne prawa jednostki, niweczy równość i  sprawied- liwość. Najlepszym przykładem tak pojmowanego ustawowego bezprawia były tzw. ustawy norymberskie z 15 sierpnia 1935 roku59. Formuła Radbrucha została wielokrotnie wykorzystana w  orzecznictwie sądów w procesie rozliczania przeszłości zarówno nazistowskiej (po 1945 r.), jak i komunistycznej (po 1990 r.)60. Wypada także zauważyć, że w wielu wypadkach sądy były w stanie dokonać rozliczenia przeszłości bez konieczności powoływa- nia się na tezy w  niej zawarte61. Niemniej stosowano ją powszechnie w  procesie rozliczania negatywnego dziedzictwa historycznego, w  dyskursie naukowym stała się pojęciem wręcz symbolicznym, niezależnie od przypisywanego pozytywnego lub pejoratywnego wydźwięku62. Stanowi bowiem antytezę słynnego stwierdzenia Hansa Kelsena, wyrażającego pozytywistyczną koncepcję prawa: „Stąd każda dowolna treść może być treścią prawa”63. 55 Autor artykułu pomija szczegółową analizę poszczególnych tez składających się na formułę Rad- brucha i wynikających z tego faktu rozbieżności. 56 Ze względu na ramy niniejszej pracy zrezygnowano z rozważań na temat konkretnych zarzutów wobec tez przedstawionych przez G. Radbrucha. 57 J. Zajadło, Odpowiedzialność za Mur…, s. 89. 58 W. Ott, Radbruch’sche Formel. Pro und Contra, „Zeitschrift für Schweizerisches Recht” 1988, nr 107, s. 335–357. 59 J. Zajadło, Filozofia prawa a prawo karne. Studium tzw. Maeürschutzen, „Ius et Lex” 2003, nr (II) 1, s. 187, przyp. 33. 60 Zob. K. Opałek, Główne kierunki niemieckiej teorii i filozofii prawa po II wojnie światowej [w:] idem, Studia z teorii i filozofii prawa, Kraków 1997, s. 17; na temat problemu rozrachunku z komu- nistyczną przeszłością w Niemczech zob. J. Zajadło, Odpowiedzialność za Mur… 61 J. Rivers, Gross Statutory Injustice and the Head Tax Case [w:] Calling Power to Account. Law, Reparations and the Chinese Canadian Head Tax Case, red. D. Dyzenhaus, M. Moran, Toronto– –Buffalo–London 2005, s. 241. 62 Ibidem. 63 Cyt za. H. Kelsen, Reine Rechtslehre, Wien 1960, s. 201. Sprawiedliwość transformacyjna 223 Czy rację ma Radbruch, gdy mówi, że prawo, które w ogóle nie dąży do spra- wiedliwości i będącej jej rdzeniem równości, nie jest prawem, tylko ustawowym bezprawiem? Dylemat ten powrócił pod koniec lat pięćdziesiątych ubiegłego wieku w trakcie dyskusji o istocie prawa między H.L.A. Hartem a L.L. Fullerem. Ich polemika toczyła się przede wszystkim wokół odwiecznego sporu między pozytywizmem prawniczym a prawem natury, nie miała jednak charakteru jed- nolitego. Wśród szczegółowych zagadnień w  niej poruszanych odnajdujemy pytanie o rolę prawa w procesie rozliczenia przeszłości w kontekście wymogów demokratycznego państwa prawa. Czy prawo, ustanowione zgodnie z  regułami przyjętymi w  danym systemie normatywnym, zawsze zasługuje na miano prawa, niezależnie od tego, jaką treść wyraża, nawet wówczas, gdy jest prawem „złym”? Hart przyjmował, że między prawem a moralnością nie ma koniecznego związku64. Nawet prawo złe, niespra- wiedliwe i niemoralne pozostaje prawem, istnieje tylko możliwość jego nieprze- strzegania, natomiast nie ma to znaczenia z punktu widzenia jego statusu praw- nego i obowiązywania. Propozycja Harta wychodziła z założenia, iż istnieją dwa zasadnicze pojęcia prawa – węższe (concept narrow of law) i szersze (wider con- cept of law)65. Jego zdaniem, węższym pojęciem prawa posługują się doktryny prawa natury, które zakładają esencjalizm etyczno-prawny, co powoduje uzna- wanie za prawo wyłącznie takich norm, które nie są niemoralne. Pozytywizm z kolei odnosi się do szerszego pojęcia prawa, zgodnie z którym prawem są regu- ły, które zostały formalnie ustanowione i obowiązują pomimo swojej moralnej, a nawet niemoralnej treści. Nie ma bowiem koniecznego związku pomiędzy pra- wem a moralnością. Owszem, związek taki może zachodzić, ale nie jest on decy- dujący dla bytu prawa jako takiego. Wychodząc z tych założeń, Hart skrytykował powojenne propozycje Radbrucha, odnoszące się do koncepcji ustawowego bez- prawia oraz uznał za nieuzasadnione oskarżenie Radbrucha pod adresem pozy- tywizmu prawniczego, zarzucając mu brak racjonalnej argumentacji. Ponadto przestrzegał przed wykorzystaniem formuły Radbrucha w  orzecznictwie sądo- wym, gdyż prowadzi to do zastąpienia prawa moralnością. W rezultacie, jeżeli chcemy dokonywać rozliczenia przeszłości, to najskuteczniejszą i właściwą drogą ku temu jest jednoznaczna ingerencja ustawodawcza. Radbruch zakładał, że jeżeli prawo jest niesprawiedliwe, nie jest prawem, ponieważ prawo i sprawiedliwość wiążą się nieodłącznie66. Jego stanowisko było w  sposób oczywisty sprzeczne z  poglądem pozytywizmu prawniczego, w  myśl którego moc prawna może być nadana wartościom i normom jedynie wskutek włączenia ich do systemu prawnego przez właściwe mechanizmy i instrumenty, czyli źródła powstania prawa. Gdyby formuła Radbrucha ograniczała się jedy- nie do posługiwania się kryterium sprawiedliwości w  moralnej ocenie prawa, nie stanowiłaby intelektualnego wyzwania dla pozytywizmu prawniczego, który ze swojej istoty i  w  konsekwencji przyjęcia tezy o  braku istnienia koniecznego 64 Por. H. Hart, Pojęcie prawa, tłum. J. Woleński, Warszawa 1998, s. 211–285. 65 Ibidem. 66 Zob. G. Radbruch, Gesetzliches Unrecht und übergesetzliches Recht, „Süddeutsche Juristenzei- tung” 1946, nr 1, s. 105–108. Tomasz Snarski 224 związku między prawem a moralnością67, jest wobec tego problemu zasadniczo obojętny68. Pozytywistyczne podejście do prawa odwołuje się przede wszystkim do sposobu i  formy ustanowienia normy prawnej, a  nie jej treści69. Źródłem konfliktu między formułą Radbrucha a  pozytywizmem prawniczym jest przede wszystkim fakt, że Radbruch utrzymywał, iż sędziowie mogą odmówić ważności normom prawnym, chociaż zostały one włączone do systemu prawnego zgodnie z  jego założeniami. Uprawnienie to, zdaniem Radbrucha, sędziowie posiadają nawet w opozycji do zasad, które określają źródła prawa wewnątrz tego syste- mu i które potwierdzają, że sędziowie nie mają takich kompetencji70. W artykule Gesetz und Recht Radbruch pisał: „Sędzia jest wprawdzie związany ustawą, ale jego rola i godność nie pozwalają, by musiał stosować ustawy, które są oczywi- ście i rażąco sprzeczne z ideą prawa, normą, która wprost obraża żyjące w naro- dzie poczucie prawa i bezprawia, narodową moralność”71. Z tym właśnie nie zga- dzał się Hart. W jego ocenie jednostka może co prawda odmówić przestrzegania niemoralnego prawa, ale nie oznacza to, że wskutek braku oczekiwanych przez jego adresatów treści moralnych prawo przestaje być prawem. Sądy nie mogą dyskwalifikować norm prawnych, odmawiać im mocy prawnej nawet ze wzglę- du na ich rażącą, niesprawiedliwą treść. Czy jednak rzeczywiście jest tak, że sądy pozbawione są całkowicie możliwości orzekania w okresach rewolucyjnych prze- łomów? Czy konieczna jest dla tego celu świadoma ingerencja ustawodawcza? Krytykiem stanowiska Harta, a jednocześnie obrońcą propozycji Radbrucha, był Fuller72. Jego koncepcja wewnętrznej moralności prawa (the morality of law) stanowi szczególnego rodzaju doktrynę prawa natury. Fuller przedstawił osiem wymogów dotyczących konstruowania i stosowania systemu norm, których speł- nienie implikuje powstanie systemu prawnego73. Fuller uznawał, że o wiele waż- niejsze od ontologicznej definicji prawa jest poszukiwanie odpowiedzi na pytanie: czym jest dobre prawo? Takie podejście nie pozwoliło mu uznać, że w systemie nazistowskim było prawo, ponieważ było to prawo zbrodnicze74. Fuller odpierał też zarzuty Harta pod adresem Radbrucha. Po pierwsze nie zgodził się z  tezą, jakoby zastosowanie formuły Radbrucha wprowadzało niepotrzebny zamęt do dyskusji dotyczącej moralności prawa. Ponadto podnosił, że Radbruch także proponował w  pewnych przypadkach uchwalenie retroaktywnego ustawodaw- 67 Oczywiście takie stanowisko dotyczące pozytywizmu prawniczego jest celowym uproszczeniem przyjętym na potrzeby niniejszej pracy. 68 M. Chowdry, Ch. Mitchell, Responding…, s. 348. 69 S. Wronkowska, Z. Ziembiński, Zarys teorii prawa, Poznań 2001, s. 48. 70 M. Chowdry, Ch. Mitchell, Responding…, s. 348. 71 Cyt. za G. Radbruch, Ustawa i prawo, tłum. J. Zajadło, „Ius et Lex” 2007, nr (V) 1, s. 163. 72 Podkreślić jednak należy, że Fuller dopasowuje formułę Radbrucha do swojej koncepcji wewnętrznej moralności prawa. 73 Wymogi te (wewnętrznej moralności prawa) można określić jako: 1) ogólność prawa, 2) ogła- szanie prawa, 3) zakaz retroakcji (dopuszczalne są pewne wyjątki), 4) jasność prawa, 5) nakaz unikania sprzeczności w  prawie, 6) zakaz nakładania na adresatów norm prawnych obowiązków niemożliwych do spełnienia, 7) trwałość prawa w czasie (brak częstych zmian), 8) zgodność między działaniem organów publicznych a prawem (za P. Sut, Moralność prawa [w:] Leksykon współczesnej teorii i filozofii prawa, red. J. Zajadło, s. 195). 74 L.L. Fuller, Positivism and Fidelity to Law – A Reply to Professor Hart, „Harvard Law Review” 1958, t. 71, nr 4, s. 646. Sprawiedliwość transformacyjna 225 stwa75. Jego zdaniem, propozycja Radbrucha była uwarunkowana szczególnie trudną sytuacją, w  jakiej znalazły się sądy niemieckie po II  wojnie światowej76. Działania niemieckich sądów miały bowiem zapobiec samosądom. Gwałtowność transformacji nie pozwalała spokojnie oczekiwać na zmiany w ustawodawstwie. Gdyby sądy czekały na wejście w życie retroaktywnych ustaw karnych, najpraw- dopodobniej ludzie sami wymierzyliby sprawiedliwość77. W późniejszym okresie Fuller bardzo szeroko przedstawił propozycje rozwią- zania problemu rozliczenia przeszłości78. Dotyczyły one konkretnego przypadku odpowiedzialności karnej donosiciela w  systemie totalitarnym, sądzonego po obaleniu tego systemu, a zatem w ramach gwałtownej transformacji ustrojowej. Były też nawiązaniem do koncepcji Harta i Radbrucha. Ich istotę można podsu- mować w pięciu założeniach: 1) legalizmu, który uznaje niemożność współczesnego potraktowania jako bezprawnych działań, które w przeszłości były zgodne z prawem, 2) prawnej niemożności, która skutkuje przyjęciem tezy, iż nie możemy państwa bezprawia oceniać pod kątem standardów demokratycznego państwa prawa, 3) indywidualnej oceny każdego przypadku, która powoduje uzależnienie problemu odpowiedzialności od jednoznaczności sprawy; tam, gdzie sprawa wydaje się jednoznaczna, nie powinniśmy powstrzymywać się od podejmowania rozliczenia przeszłości, 4) koniecznej ingerencji ustawodawcy, która zakłada rozstrzygnięcie proble- mu poprzez przyjęcie ustawodawstwa ze skutkiem retroaktywnym, 5) świadomej rezygnacji z  podejmowania prób rozwiązywania problemu za pomocą instrumentarium prawnego, która jest jednoznaczna z cichym przyzwo- leniem na samosądy, dzisiaj powiedzielibyśmy „sprawiedliwość zwycięzców”79. Przedstawione wyżej uwagi mają decydujące znaczenie dla współczesne- go odnoszenia się władzy ustawodawczej, wykonawczej, a  przede wszystkim sądowniczej do przeszłego porządku prawnego. W przypadkach rewolucyjnych zmian, gdy następuje odcięcie się od starego reżimu, sądy często oceniają prze- szły system prawny pod kątem nowych zasad prawnych, wywiedzionych z war- tości państwa demokratycznego. Tak wielokrotnie postąpiły sądy, dokonując rozliczenia II wojny światowej, także sądy niemieckie, rozliczając komunistyczną przeszłość Niemieckiej Republiki Demokratycznej, a nawet Europejski Trybunał Praw Człowieka. Charakterystyczne dla prawa w  okresie gwałtownej transfor- macji ustrojowej jest odwoływanie się do prawa naturalnego, wyjście poza pozy- tywistyczne pojmowanie prawa. „W okresach przełomu politycznego przewagę uzyskuje tendencja do sięgania po normy prawa naturalnego, w  szczególności gdy chodzi o wykluczenie z zastosowania norm dawnego porządku prawnego”80. 75 Por. G. Radbruch, Die Erneuerung des Rechts, „Die Wandlung” 1947, nr 2. 76 L.L. Fuller, Positivism and Fidelity…, s. 655. 77 Ibidem. 78 Zob. L.L. Fuller, Moralność prawa, tłum. S. Amsterdamski, Warszawa 1978, s. 311–321. 79 Ibidem; klasyfikację oparłem na propozycji J. Zajadło, Pogoda dla donosicieli [w:] Fascynujące ścieżki…, s. 27–30. 80 Cyt. za A. Zoll, Związanie sędziego ustawą [w:] Konstytucja i gwarancje jej przestrzegania. Księga pamiątkowa ku czci prof. Janiny Zakrzewskiej, Warszawa 1996, s. 246. Tomasz Snarski 226 Gwałtowne przeobrażenia związane z  upadkiem niedemokratycznych reżimów wyjątkowo często wiążą się z  renesansem idei prawa natury81. Znaczenie dok- tryn prawa natury jest tym większe, im bardziej przeszłe prawo i państwo miały charakter sprzeczny z podstawowymi prawami człowieka, które przecież są praw natury emanacją. W procesie rozliczenia przeszłości ważna jest nie tylko inge- rencja ustawodawcy, również od sądów wymaga się podjęcia prób rozstrzygania w konkretnych sprawach i wymierzania sprawiedliwości w ramach demokratycz- nego państwa prawa. Ukazane wyżej dylematy pokazują, że legalistyczny stosunek do demokra- tycznego państwa prawa, wyrażający się w  krytycznej ocenie rozliczenia prze- szłości, nie jest jedyną, uzasadnioną wymogami racjonalnego dyskursu, postawą wobec przeszłego ustawodawstwa i  niehumanitarnej przeszłości. Oczywiście, rozliczenie przeszłości może przyjmować różny zakres, metody oraz uzasadnie- nie, jednak podstawowym problemem państw, które przeszły gwałtowny proces transformacji ustrojowej, pozostaje prawne odniesienie się do ich negatywnej przeszłości. Jest to zagadnienie niezwykle złożone, niepozwalające na uproszcze- nia i  generalizacje, dlatego też naganne jest zaniechanie w  tej materii, którego dopuściła się polska władza ustawodawcza, a niejednokrotnie też sądownictwo. Mimo rozwoju różnorodnych form sprawiedliwości transformacyjnej raczej nie uda się nam w  pełni zadośćuczynić niesprawiedliwej przeszłości. Pewne krzywdy pozostają nieodwracalne, nie da się ich osądzić ani naprawić. Zygmunt Ziembiński w  1992 r. napisał: „Jeśli Rzecznik Praw Obywatelskich otrzymu- je pisma w  sprawie rewindykacji majątków skonfiskowanych przez rząd carski po powstaniu styczniowym i  pokrzywdzeń jednostek przez kolejne perturbacje historyczne, to – nie kwestionując pokrzywdzenia – może co najwyżej informo- wać petentów o  formalnych aspektach prawnych powstałej sytuacji, ewentual- nie sugerować rozstrzygnięcie legislacyjne w  granicach zdrowego rozsądku”82. Dzisiaj wiemy, że takich możliwości jest znacznie więcej, a  próby naprawienia przeszłości mogą polegać na odwołaniu się do zasad zawartych immanentnie w systemie demokratycznego państwa prawa. Jak długo jednak ofiary niesprawiedliwości powinny być uprawnione do poszukiwania zadośćuczynienia, a  kiedy ich krzywdy powinny po prostu stać się częścią historii? Z punktu widzenia pewności prawa wydaje się, że najlepszą drogą rozwiązywania problemów związanych z  zadośćuczynieniem za krzywdy historyczne przez demokratyczne państwo prawa jest ingerencja ustawodawcza. Nie oznacza to jednak, że sądy powinny rezygnować z rozstrzygania spraw tego typu, gdyż może to doprowadzić do zniweczenia sprawiedliwości. Oczywiste jest, iż sytuacja historyczna, związana z  radykalną przemianą systemu prawne- go, wymaga pogłębionej refleksji naukowej nad uwarunkowaniami, szansami i  zagrożeniami płynącymi z  tej zmiany83. Demokratyczne państwo potrzebuje wypracowania instrumentarium prawnego, które będzie skutecznym narzędziem 81 Zob. J. Zajadło, Formuła Radbrucha. Filozofia prawa na granicy pozytywizmu prawniczego i prawa natury, Gdańsk 2001, s. 67–104. 82 Cyt. za Z. Ziembiński, O pojmowaniu sprawiedliwości, Lublin 1992, s. 183–184. 83 Por. Z. Ziembiński, „Lex” a „ius” w okresie przemian, „Państwo i Prawo” 1991, z. 6 (544), R. 66, s. 14. Sprawiedliwość transformacyjna 227 niwelowania negatywnych skutków wyrządzonej w przeszłości niesprawiedliwo- ści. Upływ czasu utrudnia jednak zidentyfikowanie ofiar historycznych krzywd, a także oszacowanie ich strat. Czy możemy osądzać minione pokolenia i  wytworzone przez nie systemy prawne pod kątem współczesnych zasad? Nie istnieje jednoznaczna odpowiedź na to pytanie. Możemy stosować powszechne i  skrupulatne rozliczenie przeszłości, tak jak to uczynili Niemcy, możemy oddzielić przeszłość „grubą kreską” wzorem Hiszpanów, możemy wreszcie poszukiwać modelu pośredniego, tak jak uczynio- no w  Republice Południowej Afryki. Cenne powinny być dla nas doświadczenia państw Europy Środkowo-Wschodniej oraz byłych republik radzieckich84. Warto wypracować rozwiązania prawne odnoszące się do wyrządzonych w  przeszłości krzywd. Nie należy bowiem pozostawiać osądzenia przeszłości poza zasięgiem systemu normatywnego i zaniechać jakiejkolwiek debaty w obli- czu związanych z tymi problemami kontrowersji. Istnieje cały katalog problemów wynikających z  dziedzictwa prawnego, a problem rozliczania przeszłości i związanej z nim sprawiedliwości transforma- cyjnej stanowi współcześnie bardzo istotne zjawisko społeczne oraz źródło trud- nych dylematów o  różnorodnym charakterze, między innymi prawnym, eko- nomicznym i politycznym. Pomocą w ich rozwiązaniu mogą być doświadczenia innych państw przechodzących transformację ustrojową, ale też dorobek nauki dotyczący zjawiska sprawiedliwości transformacyjnej i polityki wobec przeszło- ści oraz szeroko pojęta refleksja filozoficznoprawna. Publikowane są monografie i artykuły poświęcone zagadnieniom transformacji85, ale – po pierwsze – zwykle mają one charakter politologiczny bądź ekonomiczny, po drugie zaś – zagadnie- nia związane ze sprawiedliwością transformacyjną pozostają jednak problemem ubocznym. Nauka polska winna poświęcić tym zagadnieniom więcej uwagi, gdyż niedostatki w tej dziedzinie rzutują na całą rzeczywistość naszej transformacji. Tomasz Snarski (ur. 1985) – prawnik, aplikant adwokacki, asystent w  Kate- drze Prawa Karnego Materialnego i  Wykonawczego oraz Psychiatrii Sądo- wej na Wydziale Prawa i  Administracji Uniwersytetu Gdańskiego. Prowadzi zajęcia dydaktyczne z  prawa karnego oraz wstępu do prawoznawstwa. Jest opiekunem Sekcji Praw Człowieka Studenckiej Uniwersyteckiej Poradni Praw- nej, działającej na Uniwersytecie Gdańskim, która świadczy pomoc prawną 84 Na ten temat zob. Transitional Justice in Eastern Europe and the Former Soviet Union. Reckoning with the Communist Past, red. L. Stan, Abingdon 2009. 85 Zob. Dylematy polskiej transformacji, red. J. Błuszkowski, Warszawa 2007; P. Bożyk, Opcje transformacji systemowej w  Europie Środkowej i  Wschodniej, „Sprawy Międzynarodowe” 1996, nr 3/4, s. 103–112; idem, Polityka ekonomiczna w  krajach Europy Środkowej i  Wschodniej. Zróżnicowane efekty transformacji, „Myśl Socjaldemokratyczna” 2006, nr 3/4, s. 17–24; Władza i  społeczności lokalne w  procesie przeobrażeń ustrojowych, red. P. Dobrowolski, Katowice 1994; M. Jackowski, Transformacja ustrojowa a zmiany prawa, „Państwo i Prawo” 2004, nr 5, s. 16–31; A. Młynarska-Sobaczewska, Autorytet państwa. Legitymizacyjne znaczenie prawa w państwie trans- formacji ustrojowej, Toruń 2010. Tomasz Snarski 228 osobom niezamożnym. Jest współautorem kompendium z wiedzy o społeczeń- stwie dla uczniów szkół średnich (Wiedza o społeczeństwie. Matura 2010. Vade- mecum maturalne, Gdynia 2009). Jego zainteresowania naukowe skupiają się w głównej mierze wokół filozofii prawa karnego. Zajmuje się m.in. problemem wielokulturowości w systemie prawnym. Dotychczas opublikował kilkanaście artykułów naukowych, popularnonaukowych i publicystycznych w prasie trój- miejskiej, w tym akademickiej. Uważa, że prawnik powinien być człowiekiem wszechstronnym, zwłaszcza o wrażliwości historycznej i artystycznej. Śpiewał w Akademickim Chórze Uniwersytetu Gdańskiego. Transformational Justice, the Philosophy of Law and Taking Stock of the Past by a Democratic State under the Rule of Law The article raises the issue on the transformational justice relating to the theory of policy towards the past. The legal system, which can not only allow to ex- act compensation for the harmful history but also be used to oppose it actively, played a very important role in the process of coming to terms with history. To put it another way, in order to comprehend how the instrument of law was used by the state in the transformational justice process, one should refer to the jurisprudence. An overview of the post-war era philosophical and legal debate over the general problem of crimes against humanity is considered by the author to be a starting point to formulate a general concept of the necessity of referring to the philosophy of law in any process of settling accounts with the past. Furthermore, the other countries’ experience which went through the transformation process, as well as their scholarly achievements, may also be of invaluable help to Poland with its difficulties in solving problems with the difficult past. 
work_yvjpphc6fvablazqmri6v3veoa	----	PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE* By Paul B. Stephan I. Introduction Discussion of international law, as much as of any body of legal rules, invites a distinction between inputs — the processes that convert prefer- ences and beliefs into something recognized as “law” — and outputs — the content of the legal rules generated by lawmaking processes. Most nor- mative accounts of international law consider only the latter. Whether the topic comprises the laws of war or the nature of international human rights, discussion tends to focus on the content of the rule rather than its provenance. There exists, however, an older tradition that considers the normative value of the international lawmaking process. It reaches back at least to Jeremy Bentham. It maintains that the content of rules cannot be sepa- rated from the means of their creation, and that lawmakers are more likely to adopt substantively desirable rules when lawmaking is struc- tured and constrained in a particular way.1 A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are pre- sumptively unjust, because they constrain liberty for no good reason. A strategy for making the enactment of arbitrary laws less likely involves recognizing checks on the lawmaker’s powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in the U.S. Constitution embod- ies this strategy, although reasonable people can debate its efficacy. As the economist A. O. Hirschman observed in an influential book, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions.2 I want to inquire into the role of checks in international lawmaking. * I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and par- ticipants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone. 1 Jeremy Bentham, “Principles of International Law,” in John Bowring, ed., The Works of Jeremy Bentham, vol. 2 (New York: Russell and Russell, Inc., 1962), 540. 2 Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, MA: Harvard University Press, 1970). © 2006 Social Philosophy & Policy Foundation. Printed in the USA. 131 I recognize that other process values exist — in particular, transparency and participation rights. I have discussed these issues in international lawmaking elsewhere.3 I choose to focus here on “checking values” to avoid a subtle problem that can enter into any discussion of participation and transparency, namely an implicit assumption about the necessity of lawmaking. Once we decide that a problem requires a collective and coercive response, we want to ensure that the means of constructing that response is both fair and expeditious. Transparency and participation enhance the quality of a lawmaking process that moves inevitably toward some action. A concern for liberty, in contrast, implies a conviction that expedience sometimes must defer to fairness, and moreover that in some cases the optimal outcome is inaction. A focus on checking rests on an assumption that sometimes the interests of liberty require that a coercive authority stay its hand. Most international-law specialists regard any diminution in the scope of international law as a setback and therefore refrain from going down an analytical path that might justify less law. I therefore concentrate on checking to counteract an underlying expansion- ist bias in international-law scholarship.4 Let me deal first with a preliminary, and I believe insubstantial, objec- tion to the way in which I have framed the problem. At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle holds that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decision making, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle — that each state has a veto over the adoption of international law, at least as applied to the state and its subjects — suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule.5 One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption 3 See Paul B. Stephan, “Accountability and International Lawmaking: Rules, Rents, and Legitimacy,” Northwestern Journal of International Law and Business 17, no. 2/3 (1996–97): 726–29; and Paul B. Stephan, “The New International Law — Legitimacy, Accountability, Authority, and Freedom in the New Global Order,” University of Colorado Law Review 70, no. 4 (1999): 1580–82. 4 Typical is work over the last quarter-century by Professor Louis Henkin, the Reporter of the Restatement (Third) of the Foreign Relations Law of the United States and perhaps the most prominent and admired U.S. professor of international law. For a representative example of his expansionist approach to international law, see Louis Henkin, “U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker,” American Journal of International Law 89, no. 2 (1995): 348–50. For an account of the shifts in Henkin’s position over the last forty years, see Paul B. Stephan, “Courts, the Constitution, and Customary International Law,” Virginia Journal of International Law 44, no. 1 (2003): 37–47. 5 According to the usage of international-law scholars, “municipal” law refers to the domestic law of particular states, whether national or local. 132 PAUL B. STEPHAN makes some states better off and no state worse off, because no state would embrace a rule that has greater costs than benefits.6 One still might argue that state consent is an insufficient safeguard for liberty, because particular states might consent to international obliga- tions that the great majority of their subjects find objectionable. States might sacrifice the welfare of their subjects to obtain benefits for their rulers or for special groups with whom the rulers are allied. Dictatorships provide an obvious case where states may constitute disloyal agents, but even democracies face such problems.7 I elide this issue here, because even if states were perfect agents, it would not follow that international lawmaking represents a remarkable instance of exclusively Pareto out- comes, that is, a process that benefits at least some participants and makes none worse off. For an important range of cases, state consent is not a condition for a rule having the force of international law. First, many specialists argue for the existence of jus cogens or peremptory norms that apply regardless of state consent.8 Second, the concept of state consent is artful, and oppor- tunistic decision makers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic pressure can reduce state consent to an empty formality due to the state’s lack of effective options. I discuss each of these points in turn. For at least the last sixty years, jurists have argued that the international legal system contains some fundamental rules that must exist for inter- 6 By “rule,” I mean a command that limits in some way the autonomy that a subject of international law otherwise would enjoy. The rule might reside in a treaty or similar formal instrument, or, more controversially, it might be part of an unwritten body of norms that specialists call “customary international law.” For analysis of the analogous problem regard- ing unanimous voting that arises when creating a constitution, see James M. Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (Chicago: University of Chicago Press, 1975); and Dennis C. Mueller, Constitutional Democracy (New York: Oxford University Press, 2000), 65–67. 7 As public choice theory predicts, lawmakers concerned with reelection make laws, including international commitments, that benefit discrete and powerful groups at the expense of the general welfare. I discuss this dynamic and provide examples in Stephan, “Accountability and International Lawmaking.” 8 The Restatement (Third) of the Foreign Relations Law of the United States defines jus cogens or peremptory norms as follows: Some rules of international law are recognized by the international community of states as peremptory, permitting no derogation. These rules prevail over and invali- date international agreements and other rules of international law in conflict with them. Such a peremptory norm is subject to modification only by a subsequent norm of international law having the same character. It is generally accepted that the prin- ciples of the United Nations Charter prohibiting the use of force . . . have the character of jus cogens. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (Philadelphia: American Law Institute, 1987), sec. 102, comment k. This prestigious but unofficial source about international law is itself controversial, and not all courts regard all its pronouncements as correct. United States v. Yousef, 327 F.3d 56, 99 –103 (2d Cir. 2003). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 133 national law to be law, and that these rules operate prior to and inde- pendent of state consent. The war crimes trials that followed World War II, for example, meted out punishment for violations of rules of fundamental humanity and decency and treated the question of whether Germany or Japan had agreed to respect these rules as irrelevant. In the case of Japan, the deliberate decision of the Imperial Government not to adopt the 1929 Geneva Convention Relating to the Treatment of Prisoners of War made no difference in the judgments, many capital, imposed on the accused. Contemporary commentators argue that a number of rules, such as pro- hibitions of genocide and torture, operate universally and independently of the various conventions that codify those norms.9 Putting jus cogens rules aside, what constitutes state consent may depend on the views and authority of the decision maker. At one extreme, par- liamentary adoption of a rule of international law mirrors the process of municipal lawmaking, and largely satisfies whatever process values the adopting state observes. At the other extreme, lawmakers with little dem- ocratic accountability (for example, judges with life tenure) might embrace the rule in the face of opposition by the political branches. Bentham worried much about the judges, because of what he saw as the obscu- rantist and secret methods of judicial lawmaking and the unrepresenta- tive nature of the judiciary. Beside judicial lawmaking, delegation of rulemaking authority to a third party — say, an international body such as the European Com- mission — also circumvents, in practice if not in form, the principle of sovereign consent. The initial delegation may satisfy municipal process values, but if it encompasses a self-executing authority — as is the case for much of the lawmaking powers of the organs of the European Commu- nity (EC)10 — then rules created pursuant to the delegation may come about without significant checks. Moreover, if independent actors — in particular, domestic courts — possess and exercise the authority to enforce the rules generated by the exercise of delegated authority (again, as is the case for EC law), not much remains of sovereign consent.11 9 M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes,” Law and Contemporary Problems 59, no. 4 (1996): 63–74. 10 The European Community (until 1992, the European Economic Community) is the most important, and legally and institutionally the most developed, part of the European Union. It has lawmaking bodies (the Commission, the Council, and the European Parlia- ment) as well as a judiciary (the Court of Justice). See note 21 below. 11 The 1957 Treaty of Rome, which established the European Economic Community, implies, but does not explicitly state, both that the European Court of Justice (the Luxembourg court) has the authority to deliver authoritative and binding interpretations of Community law, and that the various national courts of the member states have an obligation to apply Community law in favor of national law, even if that means invalidating domestic legisla- tion. Decisions of the Luxembourg court articulated these conclusions, which the courts of the member states in turn accepted and implemented. For further discussion, see Paul B. Stephan, Francesco Parisi, and Ben F. W. Depoorter, The Law and Economics of the European Union (Charlottesville, VA: LexisNexis, 2003), 294–325. 134 PAUL B. STEPHAN Finally, states may have the formal authority to reject a rule of inter- national law but, because of conditions of economic or political depen- dency, may lack the effective capacity to make a choice. A common example involves the financial and economic policy requirements imposed by the International Monetary Fund (IMF) on debtor states: a sovereign state can refuse to comply with IMF demands, but only if it accepts the loss of access to foreign capital as the price of its independence.12 Similarly, a member of the World Trade Organization or the European Union theo- retically could denounce its obligations under those international regimes, but the costs of extricating a state from the intertwined relationships captured in these arrangements make such a divorce a daunting prospect.13 Once state consent ceases to constrain international lawmaking, the question of alternative checks to protect liberty looms. Under what cir- cumstances does the international lawmaking process as currently con- stituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify? I address these questions in three steps. First, I explore whether inter- national law does carry a threat of coercion. If not, concerns about arbi- trary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institu- tions, with specific reference to the 1998 Rome Statute and the body it established, the International Criminal Court. Third, I discuss the process- value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those inter- ested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. II. International Law as a Potential Threat to Liberty Legal rules affect liberty in at least two ways. Rules may contribute to the establishment of a reasonably secure political, social, cultural, and economic order that provides a foundation for voluntary interactions and personal flourishing. The concept of “ordered liberty” captures this first function. In addition, rules can restrict the choices made within the frame- work of ordered liberty. A rule forbidding murder falls into the first category, while one punishing criticism of political authority falls into the second. In normative terms, first-category rules advance the values embed- ded in liberty, while second-category rules restrict liberty. Categorization depends heavily on context, rather than on a priori principles. 12 Michael N. Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 53, no. 4 (1999): 699 –732. 13 Not to mention the opinion of some that a right unilaterally to secede from the Euro- pean Community does not exist. See Joseph H. H. Weiler, “Alternatives to Withdrawal from an International Organization: The Case of the European Economic Community,” Israel Law Review 20, nos. 2–3 (1985). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 135 For rules to function in either way, however, some mechanism must exist to induce compliance. In municipal law, the state’s coercive power (where it exists) supplies the most obvious means of enforcement, either directly or as a background threat. Other pathways to compliance include informal social sanctions. More problematically, some theorists also believe in a process of rule internalization, through which individuals impose psychic costs on themselves for rule transgressions and psychic rewards for rule compliance.14 International law as conventionally conceived seems to exclude all means of inducing compliance save informal social sanctions. The international community, as opposed to individual states, supposedly lacks coercive power, and societies ex definitio lack interior lives and psychic states.15 Accordingly, the compliance literature for the most part concentrates on how reputation and retaliation serve to induce states to observe inter- national law.16 More recently, however, scholars have identified ways in which inter- national law can have directly coercive effect. International tribunals can issue monetary or punitive judgments that states perceive as having direct effect and therefore uncritically implement. Domestic tribunals can apply international rules in a self-perceived capacity of agent for the inter- national lawmaker.17 To be sure, these examples rest ultimately on the willingness of national governments and other actors to fulfill their roles in administering coercive sanctions. But this reservation is also true of municipal law, which depends fundamentally on the willingness of indi- viduals to play their part in the execution of the law. Moreover, most legal academics seem to favor extending the coercive power and reach of international law. To take just one prominent exam- ple, the International Criminal Court (ICC) has generated a cottage indus- try of largely celebratory work, even though it has yet to take on its first case.18 The ICC, which came into being in 2002, represents a culmination of decades of work, led by the United States, to establish a permanent international body to investigate and prosecute human rights violations arising out of political and social catastrophes. Previously, the United Nations Security Council had established tribunals on an ad hoc basis to 14 Robert Cooter, “Do Good Laws Make Good Citizens? An Economic Analysis of Inter- nalized Norms,” Virginia Law Review 86, no. 8 (2000): 1577–1601. 15 Individual states do have the capacity to impose significant sanctions, including eco- nomic punishment and, in extreme cases, use of force. International bodies, as opposed to individual states, may lend their approval to such actions, but they lack the capacity directly to bring them about. 16 Andrew T. Guzman, “A Compliance-Based Theory of International Law,” California Law Review 90, no. 8 (2002): 1844–51. For recent work exploring a sociology of state compliance with international law, see Ryan Goodman and Derek Jinks, “How to Influence States: Socialization and International Human Rights Law,” Duke Law Journal 53, no. 3 (2004). 17 Robert E. Scott and Paul B. Stephan, “Self-Enforcing International Agreements and the Limits of Coercion,” Wisconsin Law Review n.v., no. 2 (2004): 599 –614. 18 To be precise, the court itself has yet to take up any case, although the prosecutor has commenced investigations into various atrocities alleged to have occurred in East Africa. 136 PAUL B. STEPHAN deal with particular disasters. The United States ultimately opposed the final version of the Rome Statute, which created the ICC, because it allows the ICC’s prosecutor and judges to decide on their own whether to act, rather than awaiting referral of a case from the Security Council (the practice with the ad hoc tribunals). Professors of international law mostly have deplored the U.S. position. More generally, the U.S. professoriat, by numbers and stature, overwhelmingly favors the exercise of judicial power, both international and domestic, to punish violations of international law; and Commonwealth and European scholars seem largely to envy, on behalf of their national courts, the power that U.S. judges wield. Thus, even if at present the coercive, and potentially liberty-threatening, dimen- sions of international lawmaking seem marginal, the weight of opinion would wish this lawmaking to acquire great instrumental power. Accordingly, without exaggerating the practical significance of the issue, we can regard some instances of international lawmaking as coercive and therefore a potential threat to liberty. Individuals have been jailed (and in the case of the post–World War II proceedings, hanged) as a result of the decisions of international criminal courts, and a permanent body to carry out the prosecution and punishment of international crimes now exists. Litigants have used domestic courts to sue individuals and firms for large sums because of purported violations of international law. Business reg- ulation increasingly turns on the decisions of international bodies. The enforceability and interpretation of a widening range of contracts turns on the meaning of international law. Each of these instances contains the potential of arbitrary encroachments on liberty. By no means do I wish to suggest that all international lawmaking is presumptively a threat to liberty, much less that it does not contribute to the ordering of liberty necessary for human flourishing and freedom. Coercion brought against, for example, persons guilty of torture and murder does not set off many alarm bells. The point, rather, is that when- ever enactment of a law creates the possibility of coercion, one legiti- mately can ask whether the processes involved in its enactment contain at least minimal safeguards to discourage the arbitrary exercise of power. I also concede that whether given procedures satisfy process values depends on context, and that the contexts of international lawmaking differ in many respects from the context of domestic lawmaking. Because there is no such thing as an international government per se, clear sepa- ration of powers, much less elaborate checks and balances, is hard to construct. Because direct election of legislators is virtually absent (the European Parliament providing the only counterexample, and that a qual- ified one), the problem of lawmaker accountability necessarily involves agency questions.19 In some instances, the power of national states to 19 By an agency question, I mean the possibility that an agent (here, an international body) has different incentives than does its principal (here, the people for whom the inter- national body acts). ~continued on next page! PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 137 reject rules of international law substitutes for separation of powers and checks and balances, but, as I observed above, this mechanism does not always work. My point, in sum, is that some international rules can be sufficiently coercive to justify an inquiry into the suitability of the lawmaking pro- cesses that generated these rules. What constitutes a minimally acceptable lawmaking process is a difficult question, and a simple analogy to domes- tic lawmaking is an insufficient response. But the growing presence of international rules in contemporary life, and the ambitions of some for an even greater role for these rules, invites an inquiry into the legitimacy of their genesis, interpretation, and application. III. International Institutions as a Potential Threat to Liberty Imagine a treaty under which several states agree to establish an inter- national agency invested with the authority to issue binding pronounce- ments regarding some set of topics. To make the problem more interesting, imagine that the treaty posits that the agency’s determinations about its authority to issue particular pronouncements cannot be challenged in national courts. Further imagine that the treaty obligates each signatory to implement the agency’s determinations, and in particular to give them “the full force of law.” This lawmaking structure is far from hypothetical. Substitute “Consti- tution” for “treaty” and “Supreme Court of the United States” for “inter- national agency” and we have the structure of U.S. constitutional law (albeit due to evolved understandings rather than because of the written text of the document).20 The 1957 Treaty of Rome constitutes the Euro- pean Court of Justice in similar fashion, and the 1950 European Conven- tion on Human Rights does much the same for the European Court of Human Rights. The 1945 Articles of Agreement of the International Mon- etary Fund and the International Bank for Reconstruction and Develop- ment (better known as the World Bank) arrogate an adjudicatory function for the respective executive bodies of these institutions. The 1998 Rome Statute for the International Criminal Court puts that court in the position As a result of the 1997 Treaty of Amsterdam and the 2001 Treaty of Nice, the European Parliament, which comprises members directly elected by voters in the member states, acquired an expanded role in the creation of the legislation of the European Community. But the Community’s other lawmaking organs, the European Commission and the European Council, selected by the members’ governments, still dominate the process. For discussion, see Stephan, Parisi, and Depoorter, The Law and Economics of the European Union, 247–53. 20 That is to say, the Supreme Court of the United States acquired the power to render authoritative and binding interpretations of the Constitution as a result of gradual public acceptance of its claim that it possessed this power, rather than because of any express language in the Constitution so providing. 138 PAUL B. STEPHAN of resolving a number of issues involving the scope and meaning of international criminal law.21 Consider in particular what kinds of questions the International Crim- inal Court must address, how it must address them, and the conse- quences of its choices. The Rome Statute authorizes punishment of four generic crimes — genocide, crimes against humanity, war crimes, and aggression. The last category is contingent on the later adoption of a definition of that class of crimes, because the authors of the statute con- cluded that the concept of aggression at present lacks sufficient clarity and acceptance to support prosecutions. The statute’s definitions of the three crimes currently proscribed contain many illustrations, but each rests ultimately on stated general principles that invite elaboration and expansion. To take just one of these proscribed acts, a “crime against humanity” entails imprisonment “in violation of the fundamental rules of international law” without further specification, in addition to “persecu- tion” on the basis of, inter alia, politics or ethnic, cultural, or religious differences. But what norm constitutes a “fundamental” rule of inter- national law? What acts amount to “persecution”? How are we to deter- mine the causal links between persecution and difference? These are questions of critical importance that only organs of the ICC can resolve.22 Much the same goes for other important questions, such as the existence of excuses or justifications for otherwise criminal behavior.23 Finally, in every particular case, the court must determine either that no state with jurisdiction over an offense is conducting an investigation, or that states that have conducted or are conducting an investigation are unable or unwilling “genuinely” to act.24 It is exactly the process by which the prosecutor and the court must make these fundamental substantive choices that is troubling. Under the terms of the Rome Statute, the prosecutor and the court act hermetically. Each must convince itself of the plausibility of its interpretations, and the court may refuse to accept the prosecutor’s determinations. But no out- 21 The Treaty of Rome (1957) created the European Economic Community, which the 1992 Maastricht Treaty renamed as the European Community. The European Community is the principal element of the European Union. The Council of Europe, a body of states that antedates the organizations that became the European Union and that always has had more members than those organizations, promulgated the 1950 European Convention on Human Rights, which in turn established the Strasbourg court. At the end of World War II, the victors established the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (the World Bank) to organize and reform the international financial system. The Soviet Union participated in the negotiations that produced the Arti- cles of Agreement for the IMF and the World Bank, but it and its satellites declined to join those organizations. 22 See Paul B. Stephan, “International Governance and American Democracy,” Chicago Journal of International Law 1, no. 2 (2000): 253–56. 23 See Rosa Ehrenreich Brooks, “Law in the Heart of Darkness: Atrocity and Duress,” Virginia Journal of International Law 43, no. 3 (2003): 867–69. 24 See Paul B. Stephan, “U.S. Constitutionalism and International Law: What the Multilateralist Move Leaves Out,” Journal of International Criminal Justice 2, no. 1 (2004): 13–14. PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 139 side body can override these decisions. By the terms of article 16 of the statute, the United Nations Security Council may order a one-year delay of an investigation or prosecution, but such action would require the consent of all five permanent members of the Security Council and in any event would not be conclusive. In effect, then, the prosecutor and the judges — each subject to no out- side review once selected for a nonrenewable nine-year term — have the power to decide whether individual states have “genuinely” pursued an offense, whether particular conduct constitutes an offense, and what con- stitutes an acceptable excuse or justification for conduct otherwise con- stituting an offense. They must make these determinations in the face of scanty precedent or historical background, and in contexts that often implicate deep geopolitical antagonisms. They do have access to a bur- geoning body of scholarly advice about how they should go about their work, but this, as scholarship typically does, contains as many points of view as there are authors. At bottom, only such internal constraints rooted in the construction of professional identities as these actors might possess (if any) constrain their exercise of significant coercive power. What the Europeans call the Luxembourg and Strasbourg courts — the EC’s European Court of Justice (in Luxembourg) and the Council of Europe’s European Court of Human Rights (in Strasbourg) — present sim- ilar issues. At the same time, some differences between these bodies, and between them and the ICC, are apparent. Although the Luxembourg court has final say on the interpretation of the Treaty of Rome (the foun- dational instrument of the European Community), the existence of a sep- arate EC lawmaking process complicates and to some extent confounds the court’s freedom of action. Moreover, the court’s jurisdiction does not extend beyond the twenty-five members of the EC. Finally, even though the court’s decrees are said to have direct effect, they have practical sig- nificance only to the extent that national governments comply with them. The Luxembourg court has evinced a fairly high degree of tolerance for foot-dragging and circumvention, suggesting that less coercion attends its edicts than one might assume. Finally, the Luxembourg court has carried on in various forms for fifty years, creating a history that provides an additional layer of constraint. The Strasbourg court is nested in a different institutional structure. It has functioned in one capacity or another since 1959, but only since 1998 have all persons with human rights claims against the forty-four states bound by the European Convention enjoyed an unqualified right to file suit.25 Due at least in part to this structural change, the twenty-first cen- 25 Protocol 11, Convention for the Protection of Human Rights and Fundamental Free- doms, European Treaty Series no. 155, effective November 1, 1998. Before the amendment, individuals could only direct a request for investigation and prosecution of human rights violations to the European Human Rights Commission, an independent international body created by the European Convention. For a discussion of the pre-1998 practice of European 140 PAUL B. STEPHAN tury has seen a remarkable increase in the number of the court’s contro- versial decisions, such as those concerning the rights of sexual minorities, the right to die, and the procedures for conducting police investigations.26 The Strasbourg court faces no counterpart legislative or executive organs, unlike the Luxembourg court. Moreover, the Strasbourg court’s ability to enforce its decisions through fines operates fairly automatically, limiting the power of intransigent states to undermine its judgments.27 I discuss these bodies because they present the most straightforward instances of delegation of coercive lawmaking power to an international body. Other instances of potentially greater significance exist. Under legal theories that enjoy wide circulation in the academic community and mod- est support in some domestic courts, various international bureaucracies, such as the United Nations Human Rights Commission and the Inter- national Committee of the Red Cross, enjoy a more diffuse power to create “customary international law,” which some courts regard as bind- ing. Were this theory to gain widespread credence, many international bodies would take on the role of coercive lawmakers. For two reasons, however, I defer discussion of these bodies to the next section. First, at present the claims for their lawmaking capacity are out- liers rather than mainstream legal doctrine. Second, their actions take on the nature of customary international law only if courts reach this conclusion. The legitimacy of this process thus is part of a broader in- quiry about domestic common law methods as means of international lawmaking. Are the constraints that currently operate on the International Criminal Court, the European Court of Justice, and the European Court of Human Rights sufficient to protect against arbitrary restrictions of liberty? One possible response is that every constitutional court, most particularly the Supreme Court of the United States, functions in this manner, and most people consider the development and empowerment of these institutions a good thing. Why shouldn’t these international courts work as well as these national courts do? states in response to rulings of the Strasbourg court, see Tom Barkhuysen, Michiel van Emmerik, and Piet Hein van Kempen, eds., The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order (The Hague: Martinus Nijhoff Publishers, 1999). 26 Atlan v. United Kingdom, 34 European Human Rights Reports 33 (2002) (ex parte hear- ings to consider government privilege to withhold evidence in criminal trial); Pretty v. United Kingdom, 35 European Human Rights Reports 1 (2002) (right to die); I. v. United Kingdom, 36 European Human Rights Reports 53 (2002) (rights of transgendered); Beck, Copp, and Bazeley v. United Kingdom (48535/99) [2002] ECHR 679 (October 22, 2002) (right of homosexuals to serve in armed services). 27 Monetary awards issued by the Strasbourg court become debts that constitute a straight- forward obligation of the defendant state. According to the website of the court: “To date States which have been ordered to make payments under Article 50 have consistently done so.” Since 1996, the court has added interest charges to judgments not satisfied within three months. http://www.echr.coe.int/Eng/EDocs/EffectsOfJudgments.html (accessed March 16, 2005). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 141 The most obvious rejoinder is that international organs are different from national courts. To begin with, they draw on agents from different states with various cultures, historical experiences, and professional iden- tities. They confront a greater range of contested issues than do most bodies, and they do so without the benefit of an unstated cultural con- sensus or broad historical memory. Yes, most institutions may go through a period of foundational angst, during which the absence of a developed institutional culture or guidance from precedent may complicate choices about appropriate actions. But the international organs present an aggra- vated case. The Supreme Court of the United States, for instance, enjoyed the benefit of its justices’ common grounding in British common law, a frame of reference that they shared with virtually all lawyers of their day. Nothing similar binds the ICC or the Strasbourg or Luxembourg courts. The absence of cultural and historical constraints might not matter as much if these organs largely engaged in technocratic exercises to reach important but obscure results. One could imagine an international tribu- nal that, for example, settled disputes over the ownership of particular locations on the radio spectrum based exclusively on issues of engineer- ing and simple rules of allocational priority. Interestingly, the real-world analog to this hypothetical organ — the dispute resolution services of the Internet Corporation for Assigned Names and Numbers (ICANN), which deals with ownership of internet domain names — does not purport to bind national legal systems, which remain free to reject ICANN out- comes.28 An analogous process, the settlement of investment disputes by international arbitration, has generated heated criticism exactly for its narrow focus on property rights at the expense of other values.29 The mandates of the ICC and the Luxembourg and Strasbourg courts go far beyond technocratic problems, however. They extend to deep and cul- turally divisive issues such as the duty to refuse an illegitimate order, the role of amnesty and reconciliation in the wake of conflict, the balance between press freedom and protection of individual reputation and group sensitivities, and the rights, powers, and immunities of members of mar- ginalized groups. There is a point of view that maintains that institutions not subject to conventional democratic constraints ought to resolve emotionally charged and divisive issues, because democracy breaks down under stress. Accord- ing to this argument, resolution of fundamental problems requires rea- soned deliberation, which a society awash in passion cannot sustain. In 28 The Internet Corporation for Assigned Names and Numbers is a nonprofit corporation established in the Commonwealth of Virginia to administer the domain name assignment system. All contracts for domain names now contain a clause providing for arbitration of ownership disputes under ICANN rules. For a fuller description of the legal basis of this process, see Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, United States Court of Appeals for the Fourth Circuit, 330 F.3d 617 (2003). 29 See Muthucumaraswamy Sornarajah, International Law on Foreign Investment, 2d ed. (Cambridge: Cambridge University Press, 2004). 142 PAUL B. STEPHAN lieu of neglecting these problems, a nation can turn to disinterested deci- sion makers operating behind a cloak of moral authority.30 For propo- nents of this argument, a different system of checks must apply to such tribunals. Rather than submitting their decisions to formal institutional constraints, the wielders of this power instead must display due regard for the limits of their moral authority. This intangible constraint, in turn, implicates an alliance between the tribunal and its commentators, as the weight of scholarly opinion presumably can bolster or reduce the author- ity behind a controversial decision. Even as applied to a well-entrenched and successful institution such as the Supreme Court of the United States, this argument invites consider- able skepticism. Whatever the particular endowments of the Supreme Court justices, their collective ability to sense the intangible limits on their authority is impaired by the cloistered lives that their institutional roles impose on them. Institutional checks on an organ’s lawmaking powers exist precisely because individual judgment and discretion are not always sufficient to prevent great blunders. The history of the Supreme Court’s more ambitious constitutional decision making — the infamous Dred Scott decision, only the second occasion on which the Court struck down a federal statute, comes to mind31 — suggests why something more than intuitive self-restraint may be necessary.32 An extension of the democracy-breakdown argument to an inter- national tribunal seems especially implausible. The idea that such insti- tutions from their inception will wield sufficient moral authority to overcome deep conflict strikes me as wishful thinking. The probability that jurists from different nations can build coalitions that withstand local passions and entrenched political opposition veers toward nil. More likely is the rise of perceptions that particular decisions represent national prej- udice. The prosecution of Slobodan Milosevic by the UN’s special court for the former Yugoslavia (a precursor of the ICC) appears to have united Serbs in a conviction that the rest of Europe hates them, rather than leading them to the realization that their former leader had disgraced their nation with his policies. Conflicts between the British House of Lords and the Strasbourg court give the impression that a controlling majority of the human rights tribunal has thrown its lot in with a Franco- 30 See Cass Sunstein, “Constitutionalism and Seccession,” University of Chicago Law Review 58, no. 3 (1991): 69 –70. 31 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). This infamous Supreme Court decision invalidated the Missouri Compromise, a congressional enactment intended to limit the spread of slavery to new territories of the United States, on the ground that the legis- lation infringed constitutionally protected interests of slave owners. The first instance of Supreme Court invalidation of federal legislation was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), a decision involving the power of Congress to assign certain cases to the Court’s jurisdiction. 32 See Cass Sunstein, “The Dred Scott Case with Notes on Affirmative Action, the Right to Die, and Same-Sex Marriage,” The Green Bag 1, no. 1 (1997). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 143 German cabal intent on undermining traditional underpinnings of British liberty in favor of a continental conception of social-democratic dirigisme.33 The point is not that in either case these fears are well founded, but rather that they exist and may become more powerful with the growth and development of international tribunals. One might sensibly respond that all international organs, the ICC and the Luxembourg and Strasbourg courts included, operate under one basic constraint, namely the process for choosing their members. A selection process that allows for state dissent, combined with limited terms for the persons selected, sets up an ex ante check on what an organ can do. States may miscalculate what a judge will do once seated — the United States has some familiarity with this problem — but, with some delay, they can cor- rect for that. In some instances where discretion is concentrated in a single person, such as the prosecutor of the ICC, the selection power, or more precisely the power not to reappoint, may serve as a check on the actor. In other cases, the selection power may deter extreme deviations from an organ’s stated responsibilities. Often, however, the structure of selection of mem- bers of these organs militates against discipline. The common practice of international tribunals, including the ICC and the Luxembourg and Strasbourg courts, entails allocating positions to individual states or cohe- sive blocs of states. As a result, stable coalitions can form to marginalize persons selected by dissident states. In the case of the ICC, for example, a single judge selected by the United States could not defeat a coalition of states hostile to U.S. exercises of power, a scenario that is far from hypothetical.34 I do not mean to suggest that any of these tribunals face an insurmount- able hurdle. It is not inconceivable that the ICC, for example, might simultaneously avoid taking on any deeply controversial cases while dealing with those obvious outrages that occur. Perhaps, over a decade or more, the leadership of the court might acquire a reputation for balanced action and careful exercise of its powers, thereby accruing moral author- ity and general respect. But this would take luck as well as prudence. Were a conflict to arise that pitted great powers against each other or 33 The British courts and the Strasbourg court have differed in several instances, including disagreements over the proper elements of the criminal justice process, Atlan v. United Kingdom, 34 European Human Rights Reports 33 (2002) (rejecting rule of Regina v. Davis, [1993] 2 All English Reports 643 [C.A.], on obligation of prosecution to disclose statements of confidential informants); over the extent of tort immunity for police officers, Osman v. United Kingdom, 29 European Human Rights Reports 245 (2000) (rejecting decision of Osman v. Ferguson, [1993] 4 All English Reports 344 [C.A.], on scope of immunity); and over the existence of a privilege under the law of defamation for comment on public figures, Reynolds v. Times Newspapers, [2001] Appellate Cases 127 (H.L.) (disregarding Strasbourg court decisions). 34 For an earlier treatment of this problem that did not consider the possibility of stable coalitions, see Paul B. Stephan, “Courts, Tribunals, and Legal Unification — The Agency Problem,” Chicago Journal of International Law 3, no. 2 (2002): 336–38. 144 PAUL B. STEPHAN otherwise seriously divided world opinion, the tribunal would find it exceedingly hard to seem neither partisan nor toothless. In the case of the ICC, the risks seem especially unnecessary. An obvi- ous model of easily imposed institutional checks existed at the time of the adoption of the Rome Statute. Since the creation of the United Nations, all war crimes tribunals depended on authorization by the Security Council, a body that acts only in the absence of the disapproval of any of the five traditional nuclear powers.35 In the past, each opportunity for inter- national intervention in the face of domestic inability to redress gross misconduct depended on the existence of the level of consensus that Security Council action entails. Requiring the ICC to await a Security Council resolution before taking jurisdiction over any particular conflict — the position for which the United States continues to hold out, and the reason for its refusal to ratify the 1998 Rome Statute — would have pre- served this institutional structure. In the abstract, one might see a contradiction between the creation of an institution intended to bring the most terrible kinds of crimes to justice and the retention of a great-power veto over its actions. This objection, however, rests on confusion of the two bases of the ICC’s jurisdiction. Credible allegations of the commission of an international crime, one should recall, by themselves are insufficient to justify action by the ICC. The ICC also must determine that no state possesses the capacity and desire to engage in a “genuine” effort to prosecute. Its jurisdiction, in other words, depends fundamentally on a determination that state-level action has failed. This latter consideration, unlike the determination of the existence of the elements of a crime, rests on irreducibly political and contestable considerations. The Security Council is an appropriate body to make judgments about national incapacity to prosecute international crimes. Expecting a free- standing international institution to go after superpowers seems bizarre. In no other area touching on fundamental interests of a great power do we expect the United Nations to impose its will. It is not excessively cynical to believe that the proponents of the ICC who rejected the U.S. position did so largely out of a conviction that the threat to act against great powers would be empty, but that its hollowness would go unno- ticed in at least some quarters. I see nothing objectionable in general about a great-power veto over certain kinds of UN actions. One can embrace the concept of fundamental equality of all people without extending it to states: the United Nations since its inception has embraced the principle that some states are more equal than others. Each great power can prevent the United Nations from 35 The five great powers — the United States, Russia, Great Britain, France, and China — do not have to endorse an action of the Security Council, but for any decision to have effect none must exercise its veto. The establishment of past ad hoc war crimes tribunals involved either the active support or passive acquiescence of all five. PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 145 authorizing sanctions against itself or its clients. Allowing great powers also to have a veto over capacity-to-prosecute determinations seems a natural extension of the present structure of the international order. The Strasbourg court represents a different set of institutional prob- lems. On the one hand, the Council of Europe has no counterpart to the UN’s Security Council: there is no club of regional powers that possesses a veto over actions undertaken on behalf of the Council of Europe. Con- straining the court’s mandate, itself only recently unleashed, thus would involve the construction of a new institution. On the other hand, the court’s coercive power, although real enough, is less than that of a com- parable common law court. In particular, it lacks the power to nullify laws or practices of which it disapproves or to order nonmonetary pun- ishment for persons who disobey its mandates. Individual states thus can resist its orders at the cost of the payment of fines. Sufficient resistance, in turn, might deter the court from undertaking more challenging projects. My broader point does not concern the particular value of the ICC, the Strasbourg court, or similar institutions. Rather, I wish to respond to the tendency of many scholars to see these organs as the wave of the future.36 Judicial bodies no less than other instruments of state power can flourish under conditions of limited power. As more international organs acquire self-executing powers that can operate without substantial state cooper- ation, greater effort will be required to devise checks other than with- drawal of state consent. The current imbroglio over the refusal of the U.S. to recognize the ICC sheds some light on potential alternatives as well as illustrating the politics of institutional maximalism. IV. Domestic Enforcement of International Law as a Potential Threat to Liberty Different checking problems arise when independent national courts create, interpret, and impose international law. The problems are subtle, because the means of judicial lawmaking vary among systems and the uses of international law vary from analogy to direct authority. National courts also may differ in what sources and methods they use to ascertain what constitutes international law. Each of these factors can complicate the question of whether international lawmaking by national courts presents distinctive issues of accountability and constraint. One important difference between national and international courts is that international institutions have acquired coercive powers relatively recently, and the most interesting and possibly worrisome cases involve proposals for future powers. As a result, institutional-design issues remain 36 See, e.g., Anne-Marie Slaughter, “Judicial Globalization,” Virginia Journal of International Law 40, no. 4 (2000): 1124; and Jenny S. Martinez, “Toward an International Judicial System,” Stanford Law Review 56, no. 2 (2003): 432. 146 PAUL B. STEPHAN central. Domestic courts, by contrast, constitute facts on the ground. The common-law courts in particular have rich as well as lengthy histories. Accordingly, it seems unrealistic to talk about reforming domestic courts as a means of limiting their ability to resort to international law. Rather, more subtle issues of cultural norms and prestige arise. In the United States, discussion of the role of international law in domes- tic adjudication often involves one of two categorical claims, each of which I wish to criticize. First, some authorities have suggested that foreign sources of law, including international law, should have no role in the shaping of judicial determinations of domestic law.37 At the opposite extreme, some scholars have argued that foreign sources should enjoy a privileged status, in the sense that their “otherness” itself strengthens the case for their respectful assimilation.38 I believe that both these claims display a lack of appreciation of the multiple functions of precedent and authority in the common law process. A judge might look to outside experiences for various reasons. On occasion, local law itself refers to foreign law, whether due to conven- tional choice-of-law rules or the application of a doctrine that involves some comparative assessment (such as the forum non conveniens doctrine used to dismiss lawsuits that would benefit from being brought in another jurisdiction). Alternatively, judges might seek evidence of the instrumen- tal effects of a particular rule and look at the experience of other juris- dictions as an empirical test. Similarly, judges might look to other sources to expand their conceptual apparatus. Finally, a judge might apply for- eign law out of an independent sense of obligation. Unless one wishes to defend judicial ignorance and narrow-mindedness, only the last function raises any difficulties. On the one hand, those who attack any use of foreign or international law in the common law process are guilty of confusing these different functions and thereby weaken the force of their arguments. On the other hand, those who argue for privileging this category of law have tended to collapse these functions exactly because some seem obviously appealing, thus obscuring the need to defend the more difficult one. In the United States, neither the critics nor the apologists have sufficiently explored the specific issues surrounding the positing of a foreign-source obligation to apply foreign law. 37 Thompson v. Oklahoma, 487 U.S. 815, 868 n. 4 (1988) (Scalia, J., dissenting); Stanford v. Kentucky, 492 U.S. 361, 369 n. 1 (1989); Atkins v. Virginia, 536 U.S. 304, 347–48 (2002) (Scalia, J., dissenting); Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting). 38 See Laurence R. Helfer and Anne-Marie Slaughter, “Toward a Theory of Effective Supranational Adjudication,” Yale Law Journal 107, no. 2 (1997); and Harold Hongju Koh, “International Law as Part of Our Law,” American Journal of International Law 98, no. 1 (2004): 45–48. These scholars cite with approval the claim of a prominent appellate judge, the former Dean of Yale Law School, that, with respect to the constitutional jurisprudence of countries that have drawn their inspiration from the United States, “Wise parents do not hesitate to learn from their children.” United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J.). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 147 One argument that I note in order to disregard it is the claim that the privileging of foreign and international authority masks a substantive agenda, namely the importation of bien-pensant social-democratic val- ues.39 It may be true that some advocates of the privileging position fail to explain why the decisions of, for example, the Strasbourg court should count but the law and practices of non-European states do not.40 Behind this failure may lie undefended normative preferences. However, the more persuasive advocates of using foreign and international law acknowl- edge the point and mount a general defense of their position.41 It is this general defense that I wish to address. The basic argument for giving authoritative effect to international law rests on conformity and safety in numbers. A judicial consensus that crosses national boundaries, so the argument goes, matters more than a split of legal authority. To maximize the deference judges qua judges get from society, they should stick together. Thus, a foreign decision — say, the conclusion by the Strasbourg court that the European Convention on Human Rights contains an implicit ban on the criminalization of sodomy — should influence the Supreme Court of the United States in deciding whether the U.S. fundamental law similarly has an unstated but effective limit on governmental power. Moreover, this influence should rest on grounds other than instrumental observations (civilization as we know it did not come to an end in Europe after the Strasbourg court reached its judgment) or conceptual innovation (the particular arguments used to construct an implicit rule from general language in a fundamental text).42 Rather, other courts should follow the Strasbourg court because doing so enhances their authority as well as that of the European body.43 How does this accretion of authority work? First, the appearance of consensus serves as a secondary source of persuasion. Doubters will be more reluctant to challenge widely held beliefs than those that are openly contested. Second, persons may feel some social pull toward conformity and away from deviance. Cooperation across courts thus builds social pressure. Accepting that this dynamic exists and can bolster judicial authority, one can still question whether it should proceed unchecked. Judicial author- ity, one might believe, does not work as an end in itself. We want to empower judges to the extent that they will act in ways that make us 39 Jeremy Rabkin, “Is EU Policy Eroding the Sovereignty of Non-Member States?” Chicago Journal of International Law 1, no. 2 (2000): 273–90. 40 Roger P. Alford, “Misusing International Sources to Interpret the Constitution,” Amer- ican Journal of International Law 98, no. 1 (2004): 64–69. 41 Helfer and Slaughter, “Toward a Theory of Effective Supranational Adjudication.” 42 For instances of the “civilization did not end” kind of argument, see Atkins v. Virginia, 536 U.S. 304, 316 n. 21 (2002); and Lawrence v. Texas, 539 U.S. 558, 576–77 (2003). 43 Atkins v. Virginia; Lawrence v. Texas; Slaughter, “Judicial Globalization.” For a recent instance of the Supreme Court making this kind of argument, see Roper v. Simmons, 543 U.S. (2005). 148 PAUL B. STEPHAN better off than we would be if they did not act, but not otherwise. For lawyers, of course, this is a hard point to acknowledge, because at least some set of lawyers inevitably will benefit from any accretion of judicial power. Proponents and opponents of any particular move, whether liti- gators or judges, will grow more powerful from having their controversy gain salience and perhaps will enjoy material rewards as well. Academics will have more to discuss authoritatively. But if we can broaden our horizons to consider the welfare of society, surely we must acknowledge that judges, like other state actors, are capable of arbitrary exercises of power that may threaten liberty. Checking the lawmaking capacity of judges is tricky, however, because the common law methodology constitutes a style of argument rather than a naked assertion of raw power. Recent proposals in the U.S. Congress to forbid judges from relying on foreign precedent strike me as silly. Judges “rely” on precedent both when they weave it into their arguments and when they act on the basis of their understanding of it, and only the former can be observed. The legislation, in effect, seeks to regulate how judges write opinions, not what they do. The gesture seems empty. A deeper problem is categorical. Conventional common law method- ology simply fills in gaps that legislative enactments can supersede. But constitutional interpretation — in Europe, this means interpretation of the Treaty of Rome and the Convention on Human Rights — operates inde- pendently of legislative enactments. Legislatures have no authority to direct courts on how to interpret or apply constitutions.44 As a result, legislatures cannot override either interpretive strategies or outcomes as to constitutional questions, even where the courts rely on international law. To the extent that courts frame their decisions as constitutional inter- pretation, Congress in the United States, and national parliaments in Europe, cannot do anything about controversial decisions (involving, for example, the rights and privileges of sexual minorities or the scope of capital punishment) that may incorporate outside sources of authority. Put aside the problem that, in at least some instances, judges can bring international law into their decisions in ways that displace national leg- islatures. Are the outcomes based on international law necessarily desir- able? The “safety in numbers” argument has a certain appeal. Some regularities in international practice maximize welfare independent of their effect on judicial prestige and power. Justice Antonin Scalia, a lead- ing opponent of the incorporation of international law into constitutional decision making, still argues that the interpretation of international trea- ties requires judges to take account of the understandings of the treaty parties, including those understandings expressed by courts in other coun- 44 Dickerson v. United States, 530 U.S. 428 (2000) (statute intended to determine scope of remedy for violations of constitutional protection against self-incrimination unconstitution- ally infringes on judicial prerogatives). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 149 tries.45 A more formal way of putting the point is that some legal struc- tures have built into them the possibility of network effects, and that efforts of judges to develop these effects can be defended without privi- leging judicial prerogatives as such.46 In sum, two problems face any effort to limit judicial aggrandizement based on the promotion of international solidarity. First, the legislative process cannot plausibly regulate rhetorical moves, as distinguished from discrete outcomes, and also cannot respond to outcomes placed on a constitutional footing. Second, some international solidarity is good, but separating the desirable, network-effects instances from judicial oppor- tunism is hard. No categorical or structural approach seems to work. Checking of international lawmaking by domestic courts thus requires approaches that operate internally to the domestic legal culture, as opposed to the institutional-design approaches discussed in Section III with respect to international organs. That is to say, the judges must limit their own actions, because limits imposed from outside seem neither reliable nor plausible. Framed in this manner, the problem resembles that involving constitutional development: internalization by judges of certain norms becomes the only effective means of guarding against excesses. Earlier I questioned whether internalized cultural norms alone can function as checks on international tribunals such as the ICC and the Strasbourg court. The points I raised — lack of cultural solidarity and inter- nalized norms — do not apply to many of the domestic courts that many scholars have asked to contribute to international lawmaking. These bod- ies, and in particular the federal courts of the United States, operate against a powerful background of tradition and well-developed profes- sional identity. It is not patently inconsistent, then, to expect internalized cultural norms to do some work in checking domestic courts, but to expect less with regard to international tribunals. The process of internalizing skepticism about the reliance on inter- national authority has several dimensions. Those who select judges — in the United States, the president and a majority of the Senate do this for the most influential members of the judiciary — may try to predict whether a candidate has such skepticism, although ex ante predictions of this kind are notoriously unreliable.47 Leading figures in the judiciary — in the United States, this means first and foremost the members of the Supreme Court — might expound on the reasons for adopting a more skeptical posture. And 45 Olympic Airways v. Hussain, 540 U.S. 644, 659 –62 (2004) (Scalia, J., dissenting). 46 “Network effects” rest on the rediscovery by some economists and legal theorists of activities that entail positive returns to scale, which is to say that increasing the level of the activity increases the average net benefits associated with each unit of that activity. For application of the theory to international relations, see Kal Raustiala, “The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law,” Virginia Journal of International Law 43, no. 1 (2002): 63–68. 47 John C. Jeffries, Jr., “In Memoriam: Lewis F. Powell, Jr.,” Harvard Law Review 112, no. 3 (1999): 597–600. 150 PAUL B. STEPHAN those who interact publicly with the judiciary and play a role in shaping judicial reputations, particularly members of the scholarly community, might praise or condemn judges based on whether they display a critical perspective toward claims of foreign authority. The praise of skepticism runs against a certain grain in the legal acad- emy. Legal scholarship for the most part avoids the scientific method, which means that the expounding of nonfalsifiable claims incurs no costs. Partly for this reason, creativity and shock value count for more than usefulness. A predictable egotism and self-regard leads, if not ineluctably then frequently, to ambitious claims that require the suspension of skep- ticism. The current popularity for judicial participation in international lawmaking reflects these factors at least to some extent. Academia contains other forces, however, that may push the debate in another direction. Normal competitive pressures ensure that no conven- tional wisdom remains unchallenged for long, and an increase in the salience of a position tends to lead to greater critical scrutiny. In the last few years, we have seen in the United States the beginning of a serious debate about the legitimacy and value of the incorporation of inter- national law into domestic common law. Although some of the antago- nists have held on to reductive and absolute positions, new scholarship has taken a more nuanced and sophisticated approach to the problem. In particular, the image of international law as a monolithic authority, as well as the portrayal of domestic incorporation as an all-or-nothing prop- osition, has been superseded by analytically rich accounts that recognize multiple dimensions of the problem.48 One consequence of the increasing sophistication of the debate is the subversion of arguments based on the authority, as distinguished from the usefulness, of international law. To be sure, some scholars insist dog- gedly on the existence of a clear line of practice in which domestic courts consistently over the centuries have used a monolithic body of “inter- national law” to shape municipal norms.49 But a growing consensus about the complexity of the issue lightens this purported historical burden by demonstrating that earlier judicial practices, far from being canonical evidence of a general pattern, represent discrete responses to distinguish- able problems. This necessary first step makes possible a shift in the terms of debate. We now can make normative judgments about the products of 48 See T. Alexander Aleinikoff, “International Law, Sovereignty, and American Constitu- tionalism: Reflections on the Customary International Law Debate,” American Journal of International Law 98, no. 1 (2004); and Ernest A. Young, “Sorting Out the Debate over Customary International Law,” Virginia Journal of International Law 42, no. 2 (2002). Both these recent works owe a substantial conceptual debt to A. M. Weisburd, “State Courts, Federal Courts, and International Cases,” Yale Journal of International Law 10, no. 1 (1995). 49 Koh, “International Law as Part of Our Law”; Gerald L. Neuman, “The Uses of Inter- national Law in Constitutional Interpretation,” American Journal of International Law 98, no. 1 (2004). PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE 151 the common law process freed from false constraints based on authori- tarian claims.50 A move away from obligatory reliance on international law in favor of more nuanced and consequentialist discussions may have a salutary effect on the common law process. Judges (much like all people) sometimes seek to avoid the pain associated with difficult decisions by depicting themselves as compelled to reach a result. Arguments based on authority invite the actor to disregard the actor’s intuitions about the action’s con- sequences or the extent to which it will displease relevant audiences. Restricting the domain of authority increases the likelihood that the actor will take into account the implications of the action. So cautioned, the actor — in this case, common law judges — may hesitate more often before encroaching on liberty. V. Conclusion It may seem odd to think of international law as a potential threat to liberty, and hence to justice. Certainly its proponents see it as a beacon of hope, a means of civilizing the too violent and cruel tendencies of inter- national politics and promoting humane values. I recognize these aspi- rations, but note that the last century was littered with regimes that attracted adherents by their noble ideals but that too often became instru- ments of awful crimes.51 The manifest good faith and eloquence of those who wish to broaden the scope of international law is not itself sufficient to foreclose an inquiry into the possibility of this threat. The threat I describe is largely potential. Most specialists would argue that the central problem with international law is its inefficacy, not its power. I argue that this rejoinder is backward looking. The trend over the last twenty years involves the accretion of authority by international institutions, and more frequent and more significant invocations of inter- national law by national lawmakers. I do not argue that either develop- ment necessarily is a bad thing. I do argue that the time for critical analysis of these trends is now. Law, University of Virginia 50 Ullonoa Flores v. S. Peru Copper Corp., 343 F.3d 140, 170–71 (2d Cir. 2003) (rejecting argument that claims of international law experts constitute an independent source for determining the law of the United States); United States v. Yousef, 327 F.3d 56, 74 and n. 35 (2d Cir. 2003) (same). 51 Stéphane Courtois, Nicolas Werth, Jean-Louis Panné, Andrzej Paczkowski, Karel Bartosek, and Jean-Louis Margolin, The Black Book of Communism: Crimes, Terror, Repression, ed. Mark Kramer, trans. Jonathan Murphy and Mark Kramer (Cambridge, MA: Harvard University Press, 1999). 152 PAUL B. STEPHAN 
work_yxockljgtrfxhegm4ect5sje4i	----	DESIGNING ADMINISTRATIVE JUSTICE Copyright (c), 2017 Lorne Sossin Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 22:20 Windsor Yearbook of Access to Justice Recueil annuel de Windsor d'accès à la justice DESIGNING ADMINISTRATIVE JUSTICE Lorne Sossin Special Issue - Innovation and Access to Justice: Addressing the Challenge of a Diverse Justice Ecosystem Volume 34, numéro 1, 2017 URI : https://id.erudit.org/iderudit/1043017ar DOI : https://doi.org/10.22329/wyaj.v34i1.5007 Aller au sommaire du numéro Éditeur(s) Faculty of Law, University of Windsor ISSN 2561-5017 (numérique) Découvrir la revue Citer cet article Sossin, L. (2017). DESIGNING ADMINISTRATIVE JUSTICE. Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice, 34(1), 87–111. https://doi.org/10.22329/wyaj.v34i1.5007 Résumé de l'article Dans cet article, l’auteur explore l’adaptation de la pensée conceptuelle à la justice administrative. L’approche conceptuelle axée sur la personne est absente de la plupart des débats entourant la conception et la réforme des tribunaux administratifs au Canada. En conséquence, l’auteur fait valoir que le système de justice administrative du Canada de tous les ordres (administrations publiques fédérale, provinciales, municipales et autochtones) est généralement fragmenté et mal coordonné et ne possède pas suffisamment de ressources pour répondre aux besoins de ses utilisateurs, en plus d’être difficilement accessible. L’article comporte deux parties. Dans la première, l’auteur passe en revue le développement de la pensée conceptuelle dans le contexte des services et organismes juridiques. Dans la seconde, il se penche sur les incidences de ce développement pour la justice administrative, notamment dans le contexte de la création de nouveaux tribunaux. Il présente aussi plusieurs exemples de réformes de tribunaux du point de vue de la pensée conceptuelle. En guise de conclusion, l’auteur suggère les critères qu’il serait souhaitable d’appliquer pour évaluer la conception d’un nouveau tribunal administratif. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/wyaj/ https://id.erudit.org/iderudit/1043017ar https://doi.org/10.22329/wyaj.v34i1.5007 https://www.erudit.org/fr/revues/wyaj/2017-v34-n1-wyaj03386/ https://www.erudit.org/fr/revues/wyaj/ (2017) 34 Windsor Y B Access Just 87 DESIGNING ADMINISTRATIVE JUSTICE Lorne Sossin* This article explores the adaptation of design thinking to administrative justice. The human centred design perspective has been missing from most debates surrounding the design and reform of administrative tribunals in Canada. As a result, the author asserts that the administrative justice system in Canada at all levels of government (federal, provincial, municipal, and Indigenous) is generally fragmented, poorly coordinated, and under-resourced in relation to the needs of its users and has multiple barriers of entry. This article is divided into two parts. The first part reviews the development of design thinking in the context of legal services and legal organizations. The second part explores the implications of this development for administrative justice, particularly in the context of the establishment of new tribunals. Several examples of tribunal reform are examined from a design thinking perspective. By way of conclusion, the author suggests the criteria that should be applied to evaluate the design of a new administrative tribunal. Dans cet article, l’auteur explore l’adaptation de la pensée conceptuelle à la justice administrative. L’approche conceptuelle axée sur la personne est absente de la plupart des débats entourant la conception et la réforme des tribunaux administratifs au Canada. En conséquence, l’auteur fait valoir que le système de justice administrative du Canada de tous les ordres (administrations publiques fédérale, provinciales, municipales et autochtones) est généralement fragmenté et mal coordonné et ne possède pas suffisamment de ressources pour répondre aux besoins de ses utilisateurs, en plus d’être difficilement accessible. L’article comporte deux parties. Dans la première, l’auteur passe en revue le développement de la pensée conceptuelle dans le contexte des services et organismes juridiques. Dans la seconde, il se penche sur les incidences de ce développement pour la justice administrative, notamment dans le contexte de la création de nouveaux tribunaux. Il présente aussi plusieurs exemples de réformes de tribunaux du point de vue de la pensée conceptuelle. En guise de conclusion, l’auteur suggère les critères qu’il serait souhaitable d’appliquer pour évaluer la conception d’un nouveau tribunal administratif. I. INTRODUCTION This article explores the adaptation of design thinking to administrative justice. Design thinking – or human-centred design – approaches services and products from the perspective of the user. This perspective too often is missing in the design of administrative tribunals, most of which have been * Lorne Sossin, Dean and Professor, Osgoode Hall Law School, York University. I am grateful to Zachary Hershenfeld for his excellent research assistance and to Margaret Hagan, Nicole Aylwin, Monica Goyal, Nicole Salama, Shannon Salter, Linda Lamoureux, and Michael Gottheil, who all provided helpful input at different stages of this research. 88 Windsor Yearbook of Access to Justice 2017 developed top down to serve the needs of a particular policy interest of the government of the day. The administrative justice system in Canada at all levels of government (federal, provincial, municipal, and Indigenous) is generally fragmented, poorly coordinated, and under-resourced in relation to the needs of its users and has multiple barriers of entry. It has become trite to observe that courts – and most other dispute resolution bodies – have been designed by and for lawyers rather than clients. The rules of evidence, court forms, and jurisprudence all flow from the technical expertise that lawyers acquire, use, and replicate. The effect is to render users who either represent themselves or seek an active role in the process ineffective and alienated. Administrative justice was supposed to be different. As Chief Justice Beverley McLachlin has observed, “[i]n sum, without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift, and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap. And there is no going back.”1 Every tribunal that has been established reflects a core premise that an alternative to courts, on the one hand, and government, on the other, is both necessary and beneficial.2 Often, tribunals are established in order to deploy a specific expertise beyond legal expertise – for example, the Competition Tribunal seeks to harness economic expertise, while the Human Rights Tribunal seeks to harness anti- discrimination expertise. Some have suggested that administrative justice constitutes a fourth branch of government, distinct from the legislature, judiciary, and the executive.3 Most of these tribunals were created to provide more flexibility and greater access than is offered by the courts but sufficient distance from government. Too often, however, even tribunals designed to be informal and flexible have become “legalized” or “judicialized” whether because of growing complexity, anxiety about oversight by courts, or simply because lawyers have not been educated to imagine alternative ways of solving legal problems. The notion that administrative tribunals are “designed” for particular goals is not new.4 Typically, however, discussions of design relate to clarity of statutory mandates, protections of tribunal independence, and the procedures and rules by which a tribunal will function. This literature critiques the structural design features – for example, in the appointments process – which can lead tribunals to be vulnerable to interference and explores the design features that can best enhance the rule of law.5 The 1 See “Administrative Tribunals and the Courts: An Evolutionary Relationship,” Remarks of the Right Honourable Beverley McLachlin, PC Chief Justice of Canada (Sixth Annual Conference of the Council of Canadian Administrative Tribunals, Toronto, 27 May 2013), online: <http://www.scc-csc.ca/court-cour/judges-juges/spe-dis/bm-2013-05-27- eng.aspx>. 2 For a history of the development of administrative tribunals in Canada, see Law Reform Commission of Canada, Independent Administrative Agencies, Working Paper 25 (Ottawa: Law Reform Commission of Canada, 1980) 17–32, online: <http://www.lareau-legal.ca/LRCWP25.pdf>. 3 See France Houle, “Constructing the Fourth Branch of Government for Administrative Tribunals” (2007) 37 Supreme Court L Rev 1. See also Lorne Sossin, “The Ambivalence of Administrative Justice in Canada: Does Canada Need a Fourth Branch?” in D Jutras & A Dodek, eds, The Sacred Fire: The Legacy of Antonio Lamer (Markham: LexisNexis, 2009) 51. 4 See Ron Ellis, “Administrative Tribunal Design” (1987) 1 Can J Admin L & Prac 134. See also Margot Priest, “Structure and Accountability of Administrative Agencies” (1992) Special Lectures of the Law Society of Upper Canada 11. 5 This critique is particularly apposite in adjudicative rights-oriented tribunals. See Ron Ellis, Unjust by Design Canada’s Administrative Justice System (Vancouver: UBC Press, 2013). Vol. 34 (1) Designing Administrative Justice 89 design concerns I explore tend to arise subsequent to this “legal design” phase, once legislation to establish a tribunal and demarcate its powers has been enacted. It is often at this point that the functional design questions around how the tribunal actually will work come into focus (though, of course, attention to the lived experience of users in the legal design phase is also highly desirable). When considering new tribunals or adding new mandates to existing tribunals, a number of design questions are highlighted. Should the tribunal be virtual (such as the Civil Resolution Tribunal of British Columbia, examined elsewhere in this volume)?6 If physical, where should the tribunal be located (in one central location or in many satellite storefronts), and how will its services be accessed (online, by phone, in person, or in combinations of all of these)? How many languages will the tribunal services be offered in, and how will it accommodate people living with physical and/or cognitive disabilities or other impairments? How much will it cost people to use the tribunal, and will all individuals pay the same amount? How will its staff and members be trained to meet the needs of users? Will it adopt an adversarial system of dispute resolution, a mediation or arbitration process, or a more inquisitorial set of procedures? The questions suggested by design thinking are starkly distinct from the questions typically asked about tribunals within a policy context or within the doctrines of administrative law and statutory drafting, which often relate to its jurisdiction, authority, rules, expertise, powers, method of appointment, and independence. Further, under the current model, questions of statutory authority, on the one hand, and budget and staffing for a tribunal, on the other, are bifurcated. In a design-thinking framework, bifurcating these key dynamics is neither possible nor desirable. Rather, design thinking puts a premium on holistic frameworks that link together issues of statutory jurisdiction with issues of user need, including resources, infrastructure, staffing, training, and administrative structures. In short, tribunals have historically been structured through a top-down, policy-making exercise, while design thinking leads by definition to a bottom-up process of determining the key features and functions of administrative tribunals. This article is divided into two parts. In the first part, I review the development of design thinking in the context of legal services and legal organizations. In the second part, I explore the implications of this development for administrative justice, particularly in the context of the establishment of new tribunals and situate the evolution of design thinking in Canadian administrative justice within broader trends in the common law world. I conclude with the criteria that I suggest should be applied to determine if the design of a new administrative tribunal is successful. II. DESIGN THINKING AND LAW As Margaret Hagan has written, design methodologies have put an emphasis on quick prototyping, frequent testing, and, above all, a focus on making services that users will love to use.7 Nicole Aylwin explains the approach in the following terms: 6 See Shannon Salter’s reflections in S. Salter, “ODR and Justice System Integration: B.C.’s Civil Resolution Tribunal” (2017) 34 Windsor Yearbook of Access to Justice 111. 7 “CBA Futures Chat: Law and Design,” Slaw (16 June 2014), online: <http://www.slaw.ca/2014/06/16/cba-futures-chat- law-and-design/>. 90 Windsor Yearbook of Access to Justice 2017 [Design thinking] involves immersing yourself in the problem you are trying to solve, working with the people experiencing the problem, experimenting with solutions, and most importantly, lowering your defenses and opening yourself and your design team up to candid and uncensored feedback about what you are doing wrong (and hopefully some things you are doing right)!8 The methodology of design may differ across settings (for example, designing a product is distinct from designing a service and so on) but generally involves these six steps: 1. begin with empathy in order to fully understand the users of the services and the service ecosystem; 2. define the problem collectively and from a user perspective; 3. brainstorm a multitude of potential solutions; 4. choose the best solutions to prototype; 5. test the prototypes; and 6. repeat steps 4 and 5 until the product or service is ready to implement (though the process of adjustment and adaptation in relation to need is continuous).9 Another way of understanding design thinking is set out by Margaret Hagan: 1. discover – what is the landscape? (understand the challenges situation and the stakeholders); 2. synthesize – what is your mission? (define and map the users and problem statement for which you will be designing); 3. build – what ideas may work? (generate possible solutions for the problem and prototype them); 4. test – are the ideas worthwhile? (test promising prototypes with your users and in live situations); and 5. evolve – how to move forward? (process the feedback, edit your prototypes, and vet them).10 IDEO, a design company, has developed a “toolkit” for human-centred design adopting elements of the above approaches (such as the importance of empathy for the user experience and revising design features based on observing user behaviour and integrating dynamic feedback).11 According to IDEO, 8 Nicole Aylwin, “Human Centred Design and the Justice System” (6 June 2016), online: <http://www.slaw.ca/2016/06/06/human-centered-design-and-the-justice-system-lessons-from-the-field/>. 9 Winkler Institute for Dispute Resolution, online: <http://winklerinstitute.ca/practice-pilots/>. 10 Margaret Hagan, “Next Gen Legal Services: Possibility of Legal Design” (April 2015), online: <http://www.legal- techdesign.com/>. 11 IDEO, “Design Kit: The Human Centered Design Toolkit,” online: <https://www.ideo.com/by-ideo/human-centered- design-toolkit>. Vol. 34 (1) Designing Administrative Justice 91 “designers trust that as long as they stay connected to the behaviours and needs of the people they’re designing for, their ideas will evolve into the right solution. In other words, they let the end-user tell them what they need to focus on building.”12 As these versions of design methodology emphasize, design thinking is focused primarily on process. The focus of design thinking is usability, including the ability to attract people to use a service because it engenders other positive attributes (whether because it is natural to use, easy to access, customized to a person’s distinct needs or identities, or simply because it is engaging). In this sense, a well-designed experience is not only functional, but also engaging and appealing. Design thinking responds to a “crisis of legitimacy” in the legal system arising from the yawning gap between those who have access to legal services and those who do not.13 In the legal context, the design approach has focused in particular on how people access legal information. For example, Margaret Hagan’s Legal Design Studio projects have involved the “Mobile Legal Advocate,” which guides a person through the steps to access legal services by texting or social media platforms. The San Francisco Housing Law Triage aims to empower citizens facing eviction to navigate the legal system to better understand and assert their rights in that system. The Plea Agreement Project seeks to assist criminal defendants to better understand plea offers. Finally, the Immigration Navigator supports potential immigrants and refugees by providing checklists, timelines and reminders for different stages of the immigration approval process. Early examples of the application of design thinking to law in Canada have focused on access-to- justice and family law reform settings and suggest important insights for how to apply design thinking in the context of administrative justice. The Family Justice and Mental Health Social Lab, for example, aims to improve the experience of users of the family justice system who deal with mental health challenges. By bringing in and gathering the perspectives of social workers, lawyers, mental health workers, psychologists, family physicians, academics, and children and youth advocates, the Family Justice and Mental Health Social Lab has developed three pilot projects that address family justice and mental health needs from a user perspective. These include: Track My Life, a mobile phone app that provides access for youth to their basic information such as health card number, social insurance number, medical records, court dates, driver’s license number, school records, and so on and access to important data and records; the Family Support Table, an alternative dispute resolution option that brings in a network of professionals such as psychologists, educators, financial planners, faith-based intermediaries, and dieticians, among others, to work with families who are struggling with mental health and family justice issues; and Help, Educate, and Link Professionals, a confidential communication network that provides answers to questions by fellow professionals such as psychologists, lawyers, pharmacists, family doctors, and social workers who may need some general guidance or information related to family justice and mental health. The Yukon Family Justice Design workshop incorporated ideas of human-centred design in order to brainstorm and prototype ideas to improve the experiences of clients in the family justice system. One particular improvement was in response to users indicating that completing the necessary forms often induced stress and anxiety. The workshop and its human-centred design process came up with the 12 Ibid. 13 For discussion, see Susan Ursel, “Building Better Law: How Design Thinking Can Help Us Be Better Lawyers, Meet New Challenges and Create the Future of Law,” in this volume. 92 Windsor Yearbook of Access to Justice 2017 foundation for the Yukon Simplified Form Innovation Project, which aims to solve this user issue. In addition to these initiatives, there have been other platforms that have incorporated human-centred design methodology into legal practice. The Court Messaging Project is aimed at making the court system more navigable and improving a user’s sense that the legal system is fair, comprehensible, and user-friendly. The tool allows for the court to send automated messages with reminders and tips for litigants regarding their upcoming obligations.14 The Plea Agreement Project redesigned lengthy plea agreements into a clear, visual design, in terms that a non-lawyer can understand.15 The Navocado Project seeks to enhance the legal processes by converting long documents into “interactive, tech- enabled, and user-friendly guides.”16 These pilot initiatives indicate the importance of linking the policy aims of administrative bodies to multi-disciplinary and user-centred processes. These operational goals may relate to access generally (for example, intake forms and so on) or to specific aspects of the policy sphere the tribunal governs or the kinds of people most likely to seek out the tribunal. While some aspects of human-centred design do not relate to specific technology initiatives in the delivery of legal information or services, the innovation sector in legal services is a key driver of the design-thinking movement in law. So much so that the focus of some organizations dedicated to access to justice are focusing on cohering and coordinating technical standards for litigation portals in order to ensure technology does not simply reproduce and exacerbate many of the current dysfunctions in the justice system (complexity, asymmetries of information and influence, barriers of entry, and so on).17 There are other important aspects of design thinking relevant for legal systems generally. A key aspect relates to how legal information is communicated. Design thinking focuses not just on putting accurate information in places where it can be found (whether a text or monograph in a library or, more recently, updated websites and legal databases) but also on how such information can attract the users’ attention and how well such information is then connected to aspects of a legal process. In other words, the traditional separation between legal information (what are my rights?) and legal process (how can I assert or protect those rights?) is blurred and ultimately eliminated in a designed approach to dispute resolution. Design thinking also asks potentially disruptive questions about how information is conveyed in legal settings. For example, most legal information (and legal advocacy, for that matter) is communicated using the written word. This approach was well suited to a culture based on written communications. In an increasingly visual and aural culture, will podcasts, animated images, and documentary film take the place of written documents in legal communications? How might legal settings take advantage of interactive digital technology to create usable, satisfying communication experiences? All of these efforts are aimed at improving service offerings and relationships with the users of the legal system and also at developing a particular responsive and innovation-oriented culture within the 14 Legal Design Lab, “The Court Messaging Project,” online: <http://www.legaltechdesign.com/CourtMessagingProject/>. 15 Legal Design Initiative, “The Plea Agreement Project,” online: <http://legaltechdesign.com/ThePleaAgreementProject/>. 16 Legal Design Lab, “Navocado,” online: <http://legaltechdesign.com/legalnavigators/>. 17 See National Center for State Courts, “Report: Building A Litigant Portal: Business and Technical Requirements” (2015), online: <http://www.srln.org/node/629/report-building-litigant-portal-business-and-technical-requirements-ncsc- 2015>. Vol. 34 (1) Designing Administrative Justice 93 tribunals themselves (including tribunal staff and tribunal members). This culture includes the ability to identify, reflect upon, and attempt to improve inefficiencies or “fail points” in current practices and foster collaboration across institutional silos or professional/disciplinary boundaries. In other words, the best way to resolve a dispute before a tribunal may involve a social worker rather than a lawyer and the best way to design a tribunal may draw on expertise from retail and hospitality sectors as much as courthouses and government agencies. The goal is an experimental culture that embraces change and empowers all members of the organization to solve problems and play an active role in improving tribunal operations. In the following sections, I apply some of these design thinking frameworks to contexts of administrative justice specifically. In so doing, I attempt to set the stage for a new kind of criteria for success by which administrative justice ought to be evaluated. III. DESIGNING A NEW FRAMEWORK FOR ADMINISTRATIVE JUSTICE Some aspects of design thinking apply to all dispute resolution entities, whether courts, tribunals, and all dispute resolution mechanisms (mediation, negotiation, arbitration, adjudication, and so on).18 Other aspects, I suggest, however, are distinctive to administrative justice and its policy environments. In other words, while all dispute resolution bodies and mechanisms seek to provide solutions to people’s problems, the entities and mechanisms that are part of administrative justice also seek to advance a particular policy goal. A human rights tribunal is part of a scheme, for example, to create a society free from discrimination. A labour board is intended not just to resolve disputes but also to advance other policy goals (in Ontario, for example, the Labour Relations Act empowering the board aims not just “to promote the expeditious resolution of workplace disputes” but also “to encourage co-operative participation of employers and trade unions in resolving workplace issues” and “to recognize the importance of workplace parties adapting to change,” among other priorities), and, for this reason, its tripartite dispute resolution mechanisms constitute an appropriate design feature for its policy goals.19 This policy aspect of administrative justice plays a key role in the design process. It also suggests the need for perspectives other than law/dispute resolution to inform the design of tribunals. In other words, designing administrative justice arguably should always include a legal perspective but should never include only a legal perspective. Multidisciplinary approaches to dispute resolution are inherent to the sphere of administrative justice. For example, a consent/capacity board cannot be designed with only legal rights in mind, but needs to also consider medical and social considerations. These perspectives relate not only to the rules of practice for such a body but also to how vulnerable communities will access the board and how the interests of vulnerable individuals are ensured and how the medical and social context of such individuals are appropriately considered. Beyond the specific policy goals of the statutes empowering administrative tribunals, all administrative tribunals reflect important policy choices not to leave particular kinds of disputes to the courts, on the one hand, or to the government itself, on the other hand. Designers of administrative justice must also take this choice as a point of departure. For example, if a tribunal is designed to mirror a court in every respect, then, arguably, it has failed to reflect the legislature’s choice to assign disputes 18 See e.g. W David Ball, “Redesigning Sentencing” (2014) 46 McGeorge L Rev 817. 19 Labour Relations Act, SO 1995, c 1, Sched A. 94 Windsor Yearbook of Access to Justice 2017 to the tribunal and not to a court in the first place. Similarly, if the tribunal is designed with the same policy motivations and discretion as a government department, then it has failed to reflect the choice to create a body other than a government department to resolve the dispute. Thus, the critical design question for every tribunal is how, in its process, the distinctiveness of tribunals both from courts and government is clear. Finally, it is important to see administrative justice in the context of accessibility. Virtually all tribunals are justified as desirable models of dispute resolution because they can provide enhanced accessibility relative to courts and other alternatives. Tribunals are often justified as providing less expensive, less formal, and more specialized dispute resolution. In Rasannen v Rosemount Instruments, Justice of Appeal Rosalie Abella (as she then was), writing for the Ontario Court of Appeal, describes the role and function of administrative tribunals as follows: They were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly.20 Sir Andrew Leggatt’s comprehensive 2001 Report of the Review of Tribunals by Sir Andrew Leggatt: Tribunals for Users – One System, One Service (Leggatt report), which made recommendations for the reform of Britain’s tribunal system, commented: Choosing a tribunal to decide disputes should bring two distinctive advantages for users. First, tribunal decisions are often made jointly by a panel of people who pool legal and other expert knowledge, and are the better for that range of skills. Secondly, tribunals’ procedures and approach to overseeing the preparation of cases and their hearing can be simpler and more informal than the courts, even after the civil justice reforms. Most users ought therefore to be capable of preparing and presenting their cases to the tribunal themselves, providing they have the right kind of help. Enabling that kind of direct participation is an important justification for establishing tribunals at all.21 While not invoking design thinking by name, Leggatt’s analysis builds on a kindred set of values, noting, for example, “[i]t should never be forgotten that tribunals exist for users, and not the other way round. No matter how good tribunals may be, they do not fulfil their function unless they are accessible by the people who want to use them, and unless the users receive the help they need to prepare and present their cases.”22 20 Rasanen v Rosemount Instruments Ltd (1994) 17 OR (3d) 267 (CA). 21 Andrew Leggatt, Tribunals for Users: One System, One Service – Report of the Review of Tribunals (March 2001) at para 1.2, online: <http://webarchive.nationalarchives.gov.uk/+/http://www.tribunals-review.org.uk/>. 22 Ibid at p.6. Vol. 34 (1) Designing Administrative Justice 95 Tribunals, by their very nature, are flexible in their operational requirements, varying widely in size, process, and mandates to address their particular statutory and policy contexts. There are approximately 235 tribunals in Ontario alone.23 As Peter Cane has observed, far too little attention in public law has been devoted to administrative justice.24 While, in some jurisdictions, such as the United Kingdom, adjudicative tribunals fall under the supervision of the judiciary, the Supreme Court of Canada has confirmed that all administrative tribunals in Canada are a part of the executive branch of government, established by statute to further a policy objective.25 Governments in Canada continue to experiment with different organizational models in their attempts to balance the policy mandate of tribunals with their adjudicative function while working to improve accessibility for users and the quality of decision making. As Jamie Baxter and I asserted in a study of Ontario’s move to tribunal “clusters,” referring to tribunals as part of an administrative justice “system” may reflect more of an aspiration than a reality: The need for such change is evident. Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between bodies with diverse norms and mandates. At least from a birds-eye view, the tribunal “system” now looks more like an ad hoc assortment of isolated institutions than a coherent system of justice. Increasingly, it seems that the very structures and modes of organization behind the delivery of administrative justice may actually post barriers for users, even as they separate individual tribunals from the shared knowledge, practices and infrastructure that a more rational and explicitly coordinated administrative justice system would have to offer. The challenge now squarely in front of reformers is to identify suitable approaches to institutional change that will thread these disparate elements into a more coherent whole.26 While Canada remains a patchwork quilt of administrative bodies (even if some steps towards coherence are evident, as discussed below in the context of the Administrative Tribunals Support Service), other jurisdictions have moved towards setting out shared design principles and shared evaluative standards for tribunals. For example, the New Zealand Law Reform Commission, in a thorough review of that country’s tribunal systems, identified a number of desirable characteristics that individual tribunals, or systems of tribunals, should exhibit, including: 23 Ministry of the Attorney General, Guidelines for Administrative Tribunals, online: <https://www.attorneygeneral.jus.gov.on.ca/english/justiceont/french_language_services/services/administrative_tribuna ls.php>. 24 See Peter Cane, Administrative Tribunals and Adjudication (Oxford: Hart Publishing, 2009); Peter Cane, ‘Judicial Review in the Age of Tribunals’ (2009) 2009(3) Public Law 479. 25 Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at paras 21–24 [Ocean Port]. 26 See Lorne Sossin & Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for Administrative Justice” (2012) 12 Oxford Commonwealth LJ 157 at 162. 96 Windsor Yearbook of Access to Justice 2017 • public accessibility, both in terms of costs and in public awareness of opportunities to seek redress; • membership and expertise appropriate to the subject matter; • actual and apparent independence; • procedural rules that secure the observance of natural justice but that will also be simpler and less formal than the courts (and may be more inquisitorial); • sufficient powers to carry out their functions, which are proportionate to those functions; • appropriate avenues for appeal or review of tribunal decisions in order to ensure oversight and error correction; and • speedy and efficient determination of cases.27 Canada also appears to lag behind with respect to a detailed literature on tribunal users, which other countries in the common law world have developed.28 The Leggatt report in the United Kingdom suggests that failure to achieve the advantages inherent in a tribunal system most often arises from inadequacies in tribunal design, and it suggests that tribunal design focus on: • structural coherence, involving considerations such as avoiding isolation and narrowness of outlook, sufficient investment in training, attracting, and retaining suitable staff, and effective systems of administrative support; • independence, including public perception of independence, which is associated with appointment processes, security of tenure, and whether the tribunal is administered by a department with an interest in the outcome of decisions; and • user friendliness, which will reduce the need for professional representation, through such elements as information for users as well as independent help and support.29 While a standard for evaluating the performance of administrative tribunals has yet to emerge in Canada,30 the Council of Australasian Tribunals [COAT] has developed a framework for tribunal 27 New Zealand Law Reform Commission, “Tribunals in New Zealand” (January 2008) at 2.67, online: <http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20IP6.pdf>. 28 See e.g. Hazel Genn, Ben Lever, and Lauren Gray, Tribunals for Diverse Users (London: Research Unit, Department for Constitutional Affairs, Justice Rights and Democracy, 2006), online: <http://www.dca.gov.uk/research/2006/01_2006.pdf>. For a Canadian example of this kind of study, see Marcia Valiante & WA Bogart, “Helping Concerned Volunteers Working Out of Their Kitchens: Funding Citizen Participation in Administrative Decision Making” (1993) 31 Osgoode Hall LJ 687. See also Council of Canadian Administrative Tribunals, Literacy and Access to Administrative Justice in Canada: A Guide for the Promotion of Plain Language (Ottawa: Council of Canadian Administrative Tribunals, 2005). 29 See Legatt, supra note 21. See also L Sossin, “Reflections on the UK Tribunal Reform: A Canadian Perspective” (2011) 24 Can J Admin L & Prac 17. 30 Various attempts at developing such a standard have been undertaken in some Canadian jurisdictions and settings. See e.g. Society of Ontario Adjudicators and Regulators, “Toward Maintaining and Improving the Quality of Adjudication: Vol. 34 (1) Designing Administrative Justice 97 excellence in 2012 (revised in 2014), which has been widely accepted as an evaluative framework for administrative tribunals.31 COAT’s approach to tribunal excellence has three broad dimensions: • predictable, just decisions; • procedural justice; and • the delivery of a fair and efficient dispute resolution service. These three dimensions of tribunal excellence are reflected in the COAT framework. Predictability relates to consistency and certainty – users who appear before different panels or locations of a tribunal or different formats – online or in person – ought to have the same principles applied in similar ways. In other words, different tribunal members faced with the same facts should, broadly speaking, reach the same outcome. A ‘just decision’ is one based solely on the application of the relevant law to the facts of the case and is inconsistent with bias, ulterior motives, or arbitrary factors. Procedural justice includes fairness, accessibility, and user satisfaction (even and especially among losing parties in a dispute). These factors together contribute to the perceived legitimacy of the justice system and the application of public authority. Richard Moorhead, Mark Sefton, and Lesley Scanlan found that five process-oriented factors contributed to user satisfaction: 1. the expectations of, and information provided to, participants; 2. the quality of participation granted to participants (that is, the extent to which, and the process through which, participants are able to get their story out in a way they view as being accurate and fair); 3. the quality of treatment and, in particular, the respect shown to the participant during their time at the tribunal; 4. issues of convenience and comfort, including timeliness and efficiency; and 5. judgments about tribunal members and staff – whether they were perceived as helpful and empathetic.32 In light of these core values and a user-centred approach, COAT’s framework identifies eight measures of excellence against which all tribunals should be assessed: SOAR Recommendations for Performance Management in Ontario’s Administrative Justice System” (1996) Can J Admin L & Prac 179. See also Steven Hoffman & Lorne Sossin, “Evaluating the Impact of Remedial Authority: Adjudicative Tribunals in the Health Sector” in K Roach & R Sharpe (eds), Taking Remedies Seriously (Montreal: Canadian Institute for the Administration of Justice, 2009) 521. 31 COAT Framework of Tribunal Excellence, online: <http://www.coat.gov.au/images/downloads/INTL- %20COAT%20FRAMEWK%20TRIB%20April%202014.pdf>. 32 Richard Moorhead, Mark Sefton & Lesley Scanlan, “Just Satisfaction? What Drives Public and Participant Satisfaction with Courts and Tribunals,” Ministry of Justice Research Series 5/08, Cardiff Law School, Cardiff University (March 2008). 98 Windsor Yearbook of Access to Justice 2017 1. independence; 2. leadership and effective management; 3. fair treatment; 4. accessibility; 5. professionalism and integrity; 6. accountability; 7. efficiency; and 8. client needs and satisfaction. The assessment process consists of detailed survey questions on each of these eight factors, resulting in an overall “score.” The framework includes a variety of elements that overlap with human-centred design approaches (from client needs to accessibility and fair treatment) as well as areas that track more conventional top-down approaches to administrative justice. The Ontario Bar Association established a working group on the COAT framework, and it has already been adopted in the planning cycle of several tribunals in Canada.33 Tribunal design must also take into consideration other general legal constraints. Such constraints, as suggested above, must begin with the jurisdiction afforded a tribunal by statute. Statutes (or regulations issued under such statutes) may also address methods or frameworks for dispute resolution and the criteria by which disputes will be resolved.34 Additionally, some jurisdictions have statutes of general applications to tribunals, such as British Columbia’s Administrative Tribunals Act or Ontario’s Statutory Powers Procedures Act [SPPA].35 The SPPA sets out basic procedural requirements for tribunals when holding hearings – for example, with respect to notice requirements, written or electronic hearings, admissible evidence, parties to the proceeding, and many other matters.36 Ontario’s Adjudicative Tribunals Accountability, Governance and Administration Act [ATAGAA] is another example of general legislation affecting tribunals, which sets out the requirements for public accountability documents, such as service standards, business plans, consultation policies, mandate and mission statements, and member accountability frameworks.37 The ATAGAA outlines standards for member appointment processes, permits the creation of tribunal clusters; and includes other requirements aimed at promoting tribunals that are, “accountable, transparent and efficient in their operations while remaining independent in their decision-making.”38 In light of these backdrops, and the methodology of human-centred design discussed above, I propose the following framework for evaluating new or restructured administrative tribunals. 33 On the relationship between developments in Australia, Canada, and other peer jurisdictions in areas of administrative justice, see L Sossin, “Administrative Justice in an Interconnected World,” Australian Institute for Administrative Law (2014) 27 Can J Admin L & Prac 53. 34 See Ontario Bar Association, online: <https://www.oba.org/Member-Login?ReturnUrl=%2fSections%2fAdministrative- Law%2fArticles%2fArticles-2013%2fApril-2013%2fNEW-OBA-WORKING-GROUP-ASSIGNMENT-A-Framework- for-T>. 35 BC Administrative Tribunals Act, SBC 2004, c 45; Statutory Powers Procedure Act, RSO 1990, c S22 (SPPA). 36 SPPA, supra note 34. 37 SO 2009, c 33 (ATAGAA). 38 Ibid, Sched 55, s 1. See also discussion of ATAGAA in Sossin & Baxter, supra note 25. Vol. 34 (1) Designing Administrative Justice 99 A. Identifying the Needs In the past, the need for new initiatives in administrative justice often arose through a top-down process of policy leadership. The justification for these initiatives was often by and for elites and related to arguments about accountability, independence, and expertise. For example, the McRuer report in 196839 articulated a model of public oversight for self-governing professions that provided the groundwork for the establishment of the Ontario Health Professions Appeal and Review Board.40 The actual design and jurisdiction of the tribunal established through the Health Disciplines Act41 in 1974 was the result of a political compromise between the government, self-regulating health professions, and other experts and advocates.42 While the needs of patients or “the public” may have been invoked during these discussions, the process of negotiating the structure and mandate of the tribunal itself was conducted behind closed doors, and few members of the public beyond representatives of health professionals were involved in any way in the process. From a design perspective, identifying the needs to which a particular tribunal or other administrative body will respond ought to involve a collective, transparent, and empathetic needs assessment. This process can (and arguably must) also involve a process of refining the public interest and ensuring the democratic legitimacy of any resulting legislation of governmental action. The combination of a user- focused needs assessment, together with a policy-making process and the democratic legitimacy inherent in legislation empowering new or reformed tribunals is a distinct feature of designing administrative justice. B. Setting out Purposes and Principles The public interest inherent in the design of administrative justice requires a transparent articulation of the purposes and principles of new or reformed administrative bodies. The process of setting out purposes and principles itself flows from the needs assessment and policy process indicated above and should involve consultations and user participation to the extent possible. In virtually every case, the articulation of purposes and principles will include a clear justification for why the administrative body and its authority/discretion is necessary and also a specific account of the extent to which the administrative body has a mandate to be accessible to users. C. Determining the Best Model to Advance the Purposes and Principles With needs identified and the purposes and principles articulated, the third aspect of the design framework for administrative justice involves determining the best model to address those needs, purposes, and principles. While a caveat is needed about over-generalizing in relation to such a diverse sphere, it is fair to say that administrative bodies often are located in office buildings in the midst of 39 Report of the Ontario Royal Commission Inquiry Into Civil Rights (Toronto: Queen’s Printer, 1968) (the “McRuer Report”) 40 See the Health Professions Appeal and Review Board’s (HPARB) submission to the Health Professions Regulatory Advisory Council (2008), Appendix A, online: <http://hprac.org/en/projects/resources/hprac-1457May30HPARB.pdf>. I should add that I serve as a member and designated vice-chair of the HPARB, and none of the views expressed herein reflect those of the board. 41 The Health Disciplines Act, 1974, SO 1974, c 47. 42 Ibid. 100 Windsor Yearbook of Access to Justice 2017 other public sector or broader public sector office complexes (ministries, agencies, and so on). They are rarely marked at street level, rarely located where most of their users live and work, and their look and feel might be characterized charitably as “bureaucratic.” Those fully capable of navigating a dispute resolution process online immediately are required to show up in person at a date weeks or months away, while those with complex needs who require in-person support to navigate the process effectively are too often routed to a call centre or a website. These dysfunctional situations are the product of design flaws. The flaws, moreover, flow not just from the absence of meaningful roles for users in the process (the focus of the design movement) but also from the presence of structures that impair well-designed outcomes. For example, those who work carefully on the needs assessment or on the development of purposes and principles, typically are not those that decide where public agencies are located or how their physical plant (or information technology) is organized. Different people working on different problems in different places with different expertise and incentives are unlikely to collaborate on design solutions. The structures of administrative justice are particularly ill-conceived for the demands of design thinking. All administrative bodies at the federal or provincial/territorial level have a host or affiliated ministry, responsible not only for submitting budgets on behalf of those bodies but also for key aspects of public administration relating to these bodies (discussed further below in relation to the case study of a new federal structure intended to integrate and modernize the support of multiple tribunals). These may or may not be the same ministries responsible for developing the legislation empowering such administrative bodies and the design process underlying a tribunal’s jurisdiction, scope, and policy context. Different ministries, in turn, administer government services, government infrastructure, and government real estate. So it is understandable that a new tribunal may have one group in government devoted to designing the mandate of the tribunal, another group in government focused on the budget and staffing of the tribunal, and still another group looking for appropriate and cost-effective space in light of the existing stock of real estate, all before a single member of the tribunal has been appointed or a user of the tribunal has sought out its services. This structural divide means the practice of administrative justice too often undermines its purposes and principles. This is not to say that the structures of administrative justice themselves have not been designed but, rather, that their design reflects other priorities and constraints. For example, moving tribunals from host ministries to “clusters,” as occurred in Ontario, was intended to create both economies of scale (to enhance the capacity of the resulting cluster to meet the needs of users of the tribunals that make up the cluster) and to enhance the independence of tribunals from the government itself. These administrative law protections are reflected in the COAT framework and in the jurisprudence on administrative law in Canada, which includes the independence and impartiality of administrative decision makers as a key aspect of the duty of fairness and the procedural rights for those affected by administrative decisions. In focusing the debate in administrative justice more on design goals, it is important not to lose sight of the realities of government and the importance of those administrative law protections. One reality is the constitutional constraint in Canada limiting the subject matter that can be assigned to a tribunal. One aspect of this constraint is federalism, and, thus, in some areas tribunals are created for overlapping purposes (labour tribunals and human rights tribunals, among others) to reflect Canada’s distinct division of powers. Another, more specific standard relating to tribunals is the constraint on Vol. 34 (1) Designing Administrative Justice 101 governments transferring certain powers from superior courts to administrative tribunals. Since 1981, the leading case on this interpretation of section 96 of the Constitution Act, 1867, and the power of provincial legislatures to confer jurisdiction to administrative tribunals has been Reference re Residential Tenancies Act [Residential Tenancies] in 1981.43 In his decision, Justice Brian Dickson (as he then was) formulated a three-part test to determine whether the power conferred to an administrative tribunal is constitutional. The test included the following procedure. 1. A determination is made of “whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts (a section 96 court) at the time of Confederation.” 2. If yes, a determination of “whether the function in question is ‘judicial’ in its institutional setting” as opposed to policy-making functions. 3. If yes, a determination is made on the “context in which the power is exercised” – whether the “judicial powers” are merely ancillary to the general administrative functions assigned to the tribunal or necessarily incidental to the achievement of a broader policy goal of the legislature rather than the “sole or central function of the tribunal”: a. If so, the conferring of judicial power is valid. b. If not, the tribunal “is said to be operating like a section 96 court,” and the grant of power is invalid. This test was moderately amended in Sobeys Stores Ltd v Yoemans in 1989 by Justice Bertha Wilson, who stated that the characterization of the “powers” in part 1 of the test “should highlight the type of dispute rather than the type of remedy sought” and must be applied narrowly.44 She treated this act of characterization as a preliminary step to the first stage of the three-stage test from Residential Tenancies. Wilson J also clarified that the first step in the Residential Tenancies test must refer to powers that were exclusive to section 96 courts at the time of Confederation, not “shared,” meaning “broadly co- extensive” with inferior courts.45 Reference re Amendments to the Residential Tenancies Act in 1996 provided further clarifications to the three-part test.46 The court found that the Act, which confers powers to adjudicate disputes between landlords and their residential tenants exclusively to the director of residential tenancies with the power to appeal to a Residential Tenancies Board, did not violate section 96 of the Constitution Act, 1867. The result was concluded in part one of the test, as the jurisdiction to hear disputes between landlord and tenants was not within the exclusive core jurisdiction of superior courts in 1867. Chief Justice Antonio Lamer explained that the “core jurisdiction” for the purposes of this test is “very narrow … includes 43 Constitution Act, 1867, 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.Reference re Residential Tenancies Act, [1981] 1 SCR 714. 44 Sobeys Stores Ltd v Yeomans, [1989] 1 SCR 238, at para 21 [Sobeys Stores]. See also MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725. 45 Sobeys Stores, supra note 41 at para 31. 46 Reference re Amendments to the Residential Tenancies Act, [1996] 1 SCR 186. 102 Windsor Yearbook of Access to Justice 2017 only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system.”47 While the justices disagreed with respect to whether this jurisdiction was a “novel jurisdiction,” all agreed that the act conferring such powers was constitutional. Beyond constitutional constraints, legislatures have wide latitude in the structure and jurisdiction provided to new administrative bodies.48 Administrative law provides a range of protections within the confines of the statutory mandate, just as other statutes may provide minimum standards for administrative tribunals to follow (such as Ontario’s Statutory Powers Procedure Act) unless exempted by statute.49 Just as the requirements of constitutional and administrative law must be kept in mind, so must the realities of scarce resources and competing government priorities. All tribunals require resources to achieve their mandates, but where those resources come from may vary. Some administrative bodies are funded by users (for example, securities commissions and law societies), while most will be funded by public revenues. Whatever the source of resources, the determination of a tribunal’s budget has critical implications for its staffing, technological infrastructure, physical presence, and other key design features. Against this backdrop, bifurcating the development of public authority and public administration in the context of administrative justice is a good example of a practice that is inconsistent with the very premise of design thinking and also seems to work against key principles of administrative law and key goals of government for more efficient and effective delivery of services in the broader public sector. For these reasons, I argue that the determination of the best model to address the needs, purposes, and principles of an administrative body must be a holistic enterprise, involving the expertise of policy- makers and lawyers, administrators and information technology professionals, organizational and behavioural specialists, together with communication experts. All aspects of the tribunal experience should be considered together – that is, the statutory authority of the tribunal together with its physical and virtual presence, the budget and staffing of the tribunal together with its approach to proportionality or streaming of caseloads, and the rule making together with the strategies for accessibility, inclusion, and accommodations. IV. PILOTS FOR EVALUATION, CONTINUOUS IMPROVEMENT Returning to the innovations of the design movement, the determination of the best model, and entrenching that model, together with the purposes and principles identified above, in legislation, does not the end the design process. In many ways, that legislation simply represents the point of departure for the most valuable part of the design process – the testing of effectiveness of the model by users and the adjustments/adaptations made in light of that evaluative process. For administrative justice, the evaluative process has been notably absent.50 Whether undertaken by tribunals, clusters of tribunals 47 Ibid at para 56. 48 For a discussion, see Ocean Port, supra note 24. See also Philip Bryden, “Structural Independence of Administrative Tribunals in the Wake of Ocean Port” (2003) 16 Can J Admin L Prac 125. 49 RSO 1990, c S-22. 50 For discussion, see S Hoffman & L Sossin, “The Elusive Search for Accountability: Evaluating Adjudicative Tribunals” Vol. 34 (1) Designing Administrative Justice 103 themselves, outside evaluators, or the government itself, the metrics and methods for assessing the effectiveness of administrative justice are remarkably under-developed, though initiatives such as the COAT framework (and its antecedents in user satisfaction surveys) have at least put evaluation on the radar in Canada. I believe design thinking advances this search for ways of evaluating the success of administrative justice providers. In the following sections, I explore how this proposed framework might be used in relation to specific tribunal settings and assess recent initiatives involving the design of administrative justice. I consider as case studies the new Ontario model for auto insurance disputes within the License Appeal Tribunal [LAT], the Safety Licensing Appeals and Standards Tribunals Ontario [SLASTO], the recently established federal Administrative Tribunal Support Service [ATSSC], and a proposed new model for guardianship dispute resolution explored by the Law Commission of Ontario. A. The LAT and Auto-Insurance Disputes in Ontario In 2012, the Ontario government announced a review of its auto insurance dispute resolution system.51 The review was intended to address a number of challenges identified with the existing model (administered through the Financial Services Commission of Ontario [FSCO]). The review was called against a backdrop of continuously rising settlement amounts for auto insurance disputes, a doubling in the number of mediation applications between 2007–2008 and 2011–2012 with no appreciable rise in the number of motor vehicle accidents over this period, and escalating numbers of cases going to the courts from the FSCO, resulting in additional cost and delay to the parties. The review, undertaken by Douglas Cunningham, former associate chief justice of the Superior Court for Ontario, commenced in 2013. Following extensive stakeholder consultations (which can often mean hearing more from counsel and industry representatives than actual claimants), Cunningham issued a set of design principles for the new dispute resolution model that he would be recommending: • timeliness (access to resolutions should be quick and not require the intervention of the courts); • proportionality (varying processes should be available based on the varying complexity of cases); • accessibility (claimants should be able to access the system without difficulty with or without counsel); • predictability (in other words, parties should be able to predict outcomes in accordance with a reasonable range based on transparent principles); • streamlining (in other words, as little paper and process as possible) • costs (in other words, a cost-effective model with as little possibility for gaming and abuse as possible); and • culture (a culture of early dispute resolution should be encouraged).52 (2010) 28 Windsor YB Access to Justice 343. 51 See Douglas Cunningham, Final Report: Ontario Automobile Insurance Dispute Resolution System Review (February 2014), online: <http://www.fin.gov.on.ca/en/autoinsurance/drs-final-report.pdf>. 52 Ibid at 3. 104 Windsor Yearbook of Access to Justice 2017 While not framed as “design thinking” and not following the methodology set out above for continuous user feedback, Cunningham’s Automobile Insurance Dispute Resolution System Review [AIDRS Review] nonetheless reflects a shift in culture in administrative justice towards a more responsive, adaptable, and user-centric approach and, for these reasons, merits attention. Based on these principles, and subsequent to further consultations and analysis, Cunningham recommended moving the AIDRS Review from the FSCO to the LAT, streamlining a number of stages into a new more comprehensive settlement conference, introducing video conferencing and other new technologies to enhance easier and more cost-effective access as well as a number of other important changes reflective of a design shift to a user-centred focus.53 The recommendations of the AIDRS Review were adopted and incorporated into new legislation passed in Ontario in 2015. As of 1 April 2016, accident benefit arbitration applications were received by the LAT rather than by the FSCO.54 The process is similar in some respects, but some changes have been made to the AIDRS in order to make the dispute resolution process more streamlined and, as a result, more user-friendly.55 The major change to the process is the removal of the mandatory mediation in advance of arbitration. An applicant is now able to apply to the LAT for his or her benefit immediately upon that benefit being denied or terminated. All parties and their representatives will be required to attend a case conference, at which all preliminary issues will be dealt with, settlement will be discussed, the type of hearing will be decided, and a hearing date will be set. If the matter does not settle at the case conference, the hearing will proceed as scheduled. The LAT has a hybrid approach to its adjudicative phase, which may involve written or in person hearings. Expedited, electronic hearings (for example, telephone hearings) are expected for most other disputes, while in-person hearings are reserved for the most serious cases such as catastrophic impairment determination. Written and electronic options are available at the FSCO but are rarely used except for simple motions. The LAT intends that in-person hearings will be held only when necessary.56 When handled by the FSCO, most disputes with insurers are resolved in mediation, and claimants have the option to proceed to trial if a settlement has not been reached. Under the new system, a formal mediation step has been removed, and most claims will be resolved prior to adjudication through a case conference aimed at settlement.57 The time required to settle a dispute will now be under 120 days in most cases.58 As well, the LAT has kept the user experience in mind as they have indicated that the new 53 Ibid, Appendix A, setting out the list of recommendations by the review. 54 I disclose that I served as chair of an Advisory Committee established by the Attorney General to provide input into the transition of auto insurance dispute resolution from the Financial Services Commission of Ontario to the License Appeal Tribunal. This role ended on 31 May 2016. None of the views expressed in this article reflect the discussions or positions of that Advisory Committee. 55 McCague Borlack, “Goodbye FSCO, Hello LAT” (February 2016), online: <http://mccaguebor- lack.com/emails/articles/lat-coming.html>. 56 Ibid. 57 Taverniti Vashishth, “Comments on Changes on the License Appeal Tribunal Regarding Insurance Disputes” (30 May 2016), online: <http://torontospersonalinjurylawyer.com/taverniti-vashishth-llp-comments-changes-licence-appeal- tribunal-regarding-insurance-disputes/>. 58 Ibid. Vol. 34 (1) Designing Administrative Justice 105 form for filing an application for arbitration will be simplified, and they hope to eventually accept electronic filings and fee payment.59 One area of the new model that has been subject to criticism is the removal of the right of users to sue for accident benefits disputes in the Superior Court of Justice.60 Rather, users have the option first to seek a reconsideration and, subsequently (or if a reconsideration is not held), to request a “judicial review” by the Divisional Court of a LAT decision if dissatisfied, or they can appeal within thirty days on the basis of a legal mistake. Although the new process has limited some user options, this has been done in conjunction with increasing the efficiency and simplicity of the overall process. This dynamic reflects the trade-offs that often characterize the design approach and the importance of purposes and principles. If the protection of the rights of those involved in motor vehicle accidents is paramount, then the ability to sue for accident benefits in court should be the priority. On the other hand, if just, fair, and expeditious settlements are the goal, then limiting rights to sue advances important design goals. The design of the AIDRS has followed a two-stage approach – while user feedback was sought in the phase of developing the model, it also informed the implementation of the model. The AIDRS is more commonly known as Automobile Accident Benefit Services [AABS]. Phase 2 is known as the Transition and Full Implementation Phase and will take place over the next eighteen to twenty-four months (from 1 April 2016). This phase will focus on the following: • continuation of phased recruitment approach; • delivery of e-filing; • completion of case management system; • performance indicators and data analysis; • workflow analysis and long-term resource assessment; and • operational policy and planning capacity and supports. Based on the framework I develop above, it is possible to assess the auto insurance dispute resolution process fairly clearly (though its implementation is in the early stages and so a final evaluation is premature). The government decision to launch the AIDRS Review and the conduct of that review reflects attentiveness to needs assessment, stakeholder involvement, and the articulation of purposes and principles, though it also highlights the challenge of incorporating user voices in those early stages of the process. The process likely would receive relatively high scores on these aspects of the framework. The AIDRS Review provides relatively little guidance on the public administration aspects of the new model, which have been left largely with the LAT and the SLASTO cluster to determine, and there are no clear mechanisms for evaluation, assessment, and revision. The process likely would receive low scores on these aspects of the design framework. The discussion above also highlights the kind of questions that design thinking adds to the conversation about administrative justice – not just in relation to individual tribunals but also with respect to the sector as a whole (at least within particular federal or provincial/territorial and municipal 59 McCague Borlack, supra note 52. 60 Miller Thompson, “The AB Alphabet Soup’s New Letters – SLASTO and LAT” (5 February 2016), online: <http://www.millerthomson.com/en/blog/ontario-insurance-litigation-blog/the-ab-alphabet-soups-new-letters-slasto>. 106 Windsor Yearbook of Access to Justice 2017 jurisdictions.) For example, should support services for administrative bodies be designed across the sector to capture economies of scale and address unevenness between large and small tribunals by centralizing administrative tribunal services or should such services be customized to the distinct needs of each tribunal. This dilemma resulted in a recent restructuring of administrative tribunal support at the federal level. As discussed below, I believe a design framework along the lines set out above may provide an effective framework with which to evaluate this new scheme. B. Administrative Tribunals Support Service of Canada In 2014, Parliament passed the Administrative Tribunals Support Service of Canada Act, which is intended to usher in a new era of modernization and efficiency in the operation of administrative justice in Canada.61 Interestingly, the Act contains no mention of any purpose in the creation of the new support service or a mandate for its activities. The news release upon the passage of the Act is somewhat more informative. The government indicates the benefits of the new structure: Benefits of this change: There are several benefits to consolidating the provision of support services for these administrative tribunals, including the following: • Improving capacity to meet the administrative needs of tribunals Many of these tribunals are small organizations with limited resources. Tribunals themselves have identified access to support as an on-going challenge, in some cases, due to their size. The ATSSC will bring together staff and consolidate resources in a single, integrated organization that will strengthen the capacity to support tribunals' needs. For example, some tribunals may currently rely on one person for all their human resources services; the ATSSC will provide access to a broader range of specialized employees in areas such as staffing, labour relations and training. • Improved access to justice for Canadians A centralized organization will be able to better use technology and implement best practices to aid access to justice through modernized operations. Some benefits could include a more widespread use of the following: • video conferencing for hearings and other alternative options to in-person interaction, to offer greater flexibility for those appearing before the tribunals; and • comprehensive Web content about processes, past decisions or any other information relevant to the public that may require the services of a tribunal. 61 SC 2014, c 20, s 376. Vol. 34 (1) Designing Administrative Justice 107 The ATSSC will contribute to improving the efficiency and effectiveness of the tribunals’ decision- making processes – an important component of access to justice. • Efficiencies through economies of scale Efficiencies can be achieved by sharing some resources and having a centralized and versatile team with administrative and other expertise. ATSSC employees possess a broad range of skill sets and expertise that will help meet the support service needs of the tribunals and will ensure consistency across tribunals. Moreover, the ATSSC will also provide an opportunity to share best practices among previously separate organizations. Many tribunals have identified support challenges in their annual reports and see partnerships and the sharing of resources as a means to address operational limitations.62 The ATSSC is responsible for providing support service to eleven federal administrative tribunals by way of a single, integrated organization.63 Services include the specialized services required by each tribunal (for example, registry, research and analysis, and legal and other case-specific work) as well as corporate service (for example, human resources, financial services, information technology, accommodations, security, and communications). By creating this one single body to provide support for these administrative tribunals, the government aims to improve the capacity and become more operationally efficient in order “to better meet the administrative needs of federal tribunals and to improve access to justice for Canadians.”64 The ATSSC will focus on improving management practices and controls by increasing the use of common processes and systems, standardizing internal services processes, adopting new technologies, making better use of facilities, reducing the need for outsourcing services, and identifying other cost-saving efficiencies that will achieve results and value for resources. Improving the capacity to meet the administrative needs of tribunals contains elements of a human- centred approach. Many of the tribunals are small organizations with limited resources, and support is an ongoing challenge due to their size.65 As the ATSSC brings together staff and consolidates resources in a single, integrated organization that will strengthen the capacity to support tribunal needs, this could possibly translate to a more efficient and accessible process for users. As well, a centralized organization may be able to better use technology and implement best practices to aid access to justice through modernized operations. Some benefits could include a more widespread use of video conferencing, which would offer greater flexibility for users of the tribunals, and comprehensive online content about processes, past decisions, or any other information relevant to the user’s experience. Although the consolidation may improve the user experience, it is important to note that the change is largely motivated by minimizing costs through creating efficiencies and eliminating the duplication of 62 Government of Canada, “News,” online: <http://news.gc.ca/web/article-en.do?nid=897239>. 63 Government of Canada, “Administrative Tribunals Support Service of Canada,” online: <https://www.canada.ca/en/administrativetribunalssupportservice/index.html?_ga=1.172215587.1829801473.146660354 9>. 64 Government of Canada, “Administrative Tribunals Support Service of Canada: 2015–15 Report on Plans and Priorities,” online: <https://www.canada.ca/en/administrative-tribunals-support-service/transparency/rpp20152016.html>. 65 Government of Canada, “News,” supra note 59. 108 Windsor Yearbook of Access to Justice 2017 facilities.66 As well, there are concerns about potential conflicts of interests, which could have a negative effect on the user’s experience. Specifically, inclusion of the Canadian International Trade Tribunal [CITT] could expose decisions to allegations of conflicts of interest as foreign trading partners and domestic industry claimants who appear before the CITT often have Department of Justice lawyers opposing them.67 CITT staff that collect data, conduct investigatory research, and assist in drafting the decisions would therefore be employed by the same Department of Justice. Additionally, the process by which this significant reform was developed appears to be at odds with the design framework set out above. The government announced the change through an omnibus budget bill that meant almost no time for debate or discussion of its terms or implications.68 Among others, University of Ottawa law professor Errol Mendes suggests that the new agency fundamentally changes a critical piece of Canada’s administrative justice and legal system and “shouldn’t be rammed through in budget legislation without proper analysis and debate.”69 He also notes that the chief administrator of the new agency under the Act is appointed by the government and serves “at pleasure.” In light of the lack of any apparent needs assessment or collective and consultative process around the purposes and principles of the new service, not to mention an absence of a discussion of the optimal model for supporting tribunals, it is likely the new service, whatever its potential merits for the operation of the sector or particular tribunals, would score poorly against the design framework set out above. Beyond what works for a particular tribunal or for an administrative justice sector more broadly, design thinking also may inform the analysis of whether certain kinds of dispute resolution should remain with the courts (or a government department) or be integrated into a tribunal. This context is explored below in relation to the area of guardianship over vulnerable individuals in Ontario. C. Should Dispute Resolution Move from Courts to Administrative Tribunals: The Case of Guardianship? The Law Commission of Ontario [LCO] recently considered this issue in relation to disputes over capacity and guardianship for vulnerable individuals (whether due to illness or disability) that are currently resolved through the Superior Court of Ontario.70 The LCO consulted broadly among groups representing users and found that for those directly affected by the laws relating to capacity disputes, “the ability to be meaningfully heard on issues that affect their lives is central to their wellbeing. In 66 Geoffrey C. Kubrick, “Penny Wise, Pound Foolish? Federal Government Proposes to Combine ‘Back Office’ Work of Eleven Federal Tribunals and Boards into One New ‘Mega’ Administrative Agency” (June 2014), online: <http://www.mcmillan.ca/Penny-Wise-Pound-Foolish-Federal-Government-Proposes-to-Combine-Back-Office-Work- of-Eleven-Federal-Tribunals-and-Boards-into-One-New-Mega-Administrative-Agency>. 67 Ibid. 68 See Kathryn May, “Super Agency for Federal Tribunal Raises Concerns,” Ottawa Citizen (1 April 2014), online: <http://o.canada.com/uncategorized/super-agency-for-federal-tribunals-raises-concerns>. 69 Ibid. 70 Law Commission of Canada (LCO), Legal Capacity, Decision-Making and Guardianship, Final Report (March 2017), online:<http://www.lco-cdo.org/en/our-current-projects/legal-capacity-decision-making-and-guardianship/final-report/>. Vol. 34 (1) Designing Administrative Justice 109 evaluating mechanisms for access, the key consideration is whether the proposed forum provides a meaningful, expert and accessible determination.”71 As the LCO explains, our clients want their day in court. What that court is, is to be determined. But it should be more sensitised and almost individualised to our clients. Clients just want to be heard and if the CCB does it, great, Superior Court does it, but I wish there was a mechanism where everybody could be pleased that, you know, they've had a fair hearing, everybody had their fair say and a decision was reached. And that's, sort of, part of the recovery process.72 As the LCO observes, the Superior Court of Justice process is perceived to be complex, costly, time consuming, and intimidating. The court processes are not well suited to the needs of unrepresented individuals. Families and individuals often feel unable the navigate the system without costly legal assistance, and the system may be challenged to keep the individual who lacks, or may lack, legal capacity at the centre of the process. In short, effective dispute resolution is seen as beyond reach for many. In its analysis, the LCO explores the most practical and effective dispute resolution options, including the option of creating a tribunal encompassing the jurisdictions of the Ontario Consent and Capacity Board and the Superior Court of Justice in this area. The LCO’s final recommendation will build in part on a 2016 submission from the Advocacy Centre for the Elderly [ACE], which emphasized the enhanced accessibility of tribunals in relation to courts: The courts are not the forum in which these types of cases can be dealt with most efficiently. In ACE’s experience, guardianship applications brought through the courts can take many months, and, in contested applications, years. The costs can be significant and, where the assets of the incapable person are not similarly significant, it may not be practical, cost-effective or proportionate for a person of modest means to apply for guardianship over an incapable person. ACE receives many calls from family members who are being denied access to an older adult by an attorney for personal care. ACE assists only the older adult in these circumstances. The only remedy available for these family members, if negotiation is not possible, is to take the attorney to court and seek directions on the power of attorney for personal care or apply for guardianship. The legal fees involved place these options beyond the means of many people. Most importantly, the allegedly incapable person does not have easy access to the courts. Where the dispute regards a guardian of property or an attorney for property, the funds necessary to bring an application on one’s own behalf are 71 Law Commission of Canada (LCO), “Legal Capacity, Decision-Making and Guardianship,” Interim Report (October 2015), online: <http://www.lco-cdo.org/capacity-guardianship-interim-report.pdf> [LCO, “Legal Capacity”]. 72 LCO, “Appendix E: Focus Groups, 2014 Public Consultations” (25 September 2014), online: <http://www.lco- cdo.org/en/capacity-guardianship-interim-report-appendixE>. 110 Windsor Yearbook of Access to Justice 2017 likely in the control of the attorney or guardian. If the allegedly incapable person cannot access their own funds, they cannot hire a lawyer. Nor is it likely that this person would have the ability to represent himself or herself in a complicated guardianship matter. An administrative tribunal offers accessibility and flexibility. Guardianship proceedings could be resolved in weeks rather than in months or years. Applications for directions need not be as prohibitively expensive as going to court. Further, at an administrative tribunal, a simple application made by telephone by the allegedly incapable person could trigger the appointment of counsel, thus ensuring representation for this person.73 Ironically, the key risk cited by the LCO in designing a tribunal rather than a court-based dispute resolution pathway is the risk of the tribunals becoming “judicialized,” which describes the trend in some tribunals towards more court-like, formal, and costly procedures.74 This concern over ossification must be anticipated in the design process as well. A culture of innovation, experimentation, and continuous improvement is difficult to sustain. With this in mind, the evaluation of tribunal design must consider not only the operational features of tribunals but also their resilience, adaptability, responsiveness, and flexibility in the face of changing user needs, changing technology, and changing approaches to an optimal user experience. While it is too early to determine how this proposed new (or expanded) tribunal would measure up according to the design framework set out above, it is noteworthy to see the user-centred design thinking underlying the LCO’s analysis. It is also worth exploring what other settings, currently ill-suited to formal adjudication in courts, might benefit from multi-disciplinary or more flexible dispute resolution options in a tribunal or regulatory setting, such as family justice disputes. The brief case studies discussed above show both examples of the culture shift towards user-centred administrative justice design and the resilience of a more conventional top-down fragmented model of developing administrative justice. V. CONCLUSIONS In this article, I have explored the implications of human-centred design for the development of administrative justice and, in particular, for new or reformed tribunals. Based on the influence of design thinking, I have set out a proposed framework for evaluating tribunal reform, based on the extent to which this process is user-centred and also consistent with the distinct public interest purposes and principles that animate administrative justice. I have applied this framework in the context of recent tribunal reform initiatives as part of a growing effort to establish evaluative criteria for administrative tribunals. 73 See Advocacy Centre for the Elderly, Submission (3 March 2016), online: <http://www.advocacycentreelderly.org/app- images/file/ACE%20LCO%20submissions%203Mar2016.pdf>. 74 LCO, “Legal Capacity,” supra note 67, citing Judith McCormack, “Nimble Justice: Revitalizing Administrative Tribunals in a Climate of Rapid Change” (1995) 59 Sask L Rev 385 at 5–6, 9–10. Vol. 34 (1) Designing Administrative Justice 111 We are living through a transitional period in the development of administrative justice. While it is not clear how long the journey will take or how much can and will change along the way in how the public sector works, I believe design frameworks will transform how we think about administrative justice and its effectiveness for users. This transformation, in turn, will lead to tribunals and other administrative bodies that look and act differently and, I hope, better meet the needs of users – and the public – in the future. 
work_yy57k25nbjekdngqizpkh7x6sa	----	Journal of medical ethics, 1978, 4, 3-4 Editorial In search of justice Over the first three years of publication of this Journal the issue of justice in the provision of health care has been discussed regularly, though perhaps with less frequency than it merits. In an early issue Ivan Illich claimed that there was an 'expropriation of health' by the medical profession - a theme now fully elaborated in his recent books Limits to Medicine' and The Disabling Professions.2 In our second volume Elizabeth Telfer, of the Department of Moral Philosophy in Glasgow University, explored the moral implications of different systems of health care provision ranging from 'laissez-faire' to 'pure socialist'. 3 Telfer's survey of possible systems was subsequently questioned by Hillel Steiner of Manchester University. 4 In our last issue (December I977) a former Conservative Minister of Health, Enoch Powell MP, declared that the UN Declaration of Human Rights makes statements about health care which are 'both non- sensical and pernicious' - an opinion subjected to critical scrutiny by Robin Downie, Professor of Moral Philosophy at Glasgow University. Finally in the present issue (and in the preceding one) Raymond Plant has provided an exhaustive analysis of the late Richard Titmuss's celebrated attack on the market approach to medicine in his essay on blood donation, The Gift Relationship. These articles, although very different in many respects, have all been concerned with two major themes: the safe-guarding of individual freedom and the achievement of a fair distribution of health care resources. Within the tension between these two moral values there lies the problem of justice in health care policy. Too great a stress on individual liberty leads quickly to a philosophy of 'weakest to the wall': too heavy an enforcement of health care standards leads, at best, to paternalism and, at worst, to the horror of 'final solutions'. Individual responsibility and initiative must be protected and fostered, but never at the cost of disregarding the vulnerability created by illness and social dis- advantage. The achievement of the required balance in moral values is much more than merely a challenge to the ingenuity of moral philosophers. The issues to be faced demand political solutions of one kind or another. In the USA commentators have been describing for many years a 'crisis in health care delivery', yet the enactment of legislation which will make any real difference to the maldistribution of medical manpower and resources seems to be as far away as ever. In Britain the debate about the effectiveness of the National Health Service, provoked by the recent financial crisis, is beginning to die down as public confidence in some kind of economic kingdom of heaven on earth is restored. Yet the health care problems in Britain, and in other nations, will not be solved by increasing prosperity. Indeed on both a national and an international scale all the evidence points in the opposite direction: economic expansion brings with it the twin problems of an ever widening gap between the living condi- tions of the advantaged and the disadvantaged, and, for those who profit from the prosperity, the penalty of the 'diseases of affluence'. Thus, in adversity or prosperity, the moral issue for health care legislators remains the same: how is a society to cope with the recurrent problem of ill- health in a way that enhances equally the life prospects of all its members? We believe that no quick answers should be offered to that question. There is no short cut through the maze of arguments by economists, political theorists, sociologists and philosophers about the design of social institutions. We see our task to be one of keeping all the questions open by continuing to publish articles, from a range of disciplines and viewpoints, on the political reality of justice in health care. References 'Penguin Books, Harmondsworth, I976. "Boyars, London, I977. 3Journal of Medical Ethics, 2, 107-III. 4Journal of Medical Ethics, 2, I85-I89. Screening for Spina Bifida The Health Departments in the United Kingdom are now considering the wisdom of performing tests on all pregnant women in order to forestall the birth of infants with open spina bifida by selective abortion. Alpha-feto-protein is normally present in the bloodstream of the human fetus. In cases of open neural tube defect (open spina bifida, anencephaly) this protein is found in a higher-than-normal concentration in the amniotic fluid, and also in the o n A p ril 5 , 2 0 2 1 b y g u e st. P ro te cte d b y co p yrig h t. h ttp ://jm e .b m j.co m / J M e d E th ics: first p u b lish e d a s 1 0 .1 1 3 6 /jm e .4 .1 .3 o n 1 M a rch 1 9 7 8 . D o w n lo a d e d fro m http://jme.bmj.com/ 
work_z32x5qkj3faspjw6sisuovajge	----	European Court of Justice delivers no justice to Europe on genome‐edited crops Letter European Court of Justice delivers no justice to Europe on genome-edited crops Alan H. Schulman1,2,3,†* , Kirsi-Marja Oksman-Caldentey4 and Teemu H. Teeri3,5 1Production Systems, Natural Resources Institute Finland (Luke), Helsinki, Finland 2Institute of Biotechnology, University of Helsinki, Helsinki, Finland 3Viikki Plant Science Centre, Helsinki, Finland 4VTT Technical Research Centre of Finland Ltd., Espoo, Finland 5Department of Agricultural Sciences, University of Helsinki, Helsinki, Finland Received 11 April 2019; revised 3 June 2019; accepted 5 June 2019. *Correspondence (Tel +358 40 768 2242; email alan.schulman@helsinki.fi) †A.H.S. is President of the European Plant Science Organisation, EPSO Keywords: genome editing, GMO regulations, NBT, new breeding techniques, CRISPR/Cas. Genetic variation is natural and needed for crop improvement The advent of agriculture about ten millennia ago, the Green Revolution of the 1960s, and all agriculture in-between and since were founded on identification and use of genetic variation. Traditional farmers selected higher producing or better tasting variants and propagated them. The 19th-century advent of plant breeding exploited variation by use of sexual crosses. The science of breeding made great progress through the application of Mendelian, quantitative, and population genetics, heterosis, and ultimately molecular markers and genomic selection. However, modern breeders in essence still search for the variation that gives needed traits and introduce it into their breeding programmes. The rest is just combining alleles. However, there is only finite variation within our crop species, and genetic incompatibility limits the amount that can be introgressed from outside the species. Moreover, wide crosses with exotic germplasm can bring, together with the desired trait such as disease resistance, many undesired traits such as seed shattering or low yield, which had been earlier painstakingly bred out of the elite parent. After LJ Stadler demonstrated the use of X-rays to mutagenize barley and maize (Stadler, 1930), breeders began to create their own variation, using random mutagenesis followed by selection, called ‘mutation breeding’. At the beginning of 2019, the joint FAO/IAEA mutant variety database (mvd.iaea.org/) contained 3284 plant varieties released in more than 60 countries, which were either the direct products of mutagenesis or their progeny. These span at least 214 plant species, including not only the major cereals and grain legumes, but also oil crops, fibre crops, herbs, fruits and ornamentals. Prominent examples include the following: the rice varieties Amaroo (Australia), Zhefu 802 (China), RD6 and RD15 (Thailand); the malting barley varieties Diamant and Golden Promise; NIAB-78 cotton (Pakistan); Rio Star grapefruit (USA). Gene editing as a response to the off-target problem of mutagenesis Chemical mutagens as used in mutation breeding induce mutations at a frequency ranging from once every 24 kb to 1000 kb (Spencer-Lopes et al., 2018). For example, EMS-induced mutagenesis in common (hexaploid) wheat induced 104 779 SNPs throughout the genome (Hussain et al., 2018). While mutagenized populations are good platforms for reverse genetics (TILLING; Acevedo-Garcia et al., 2017), many back-crosses are required to purify a specific desired mutation away from the mutagenized background. In the last few years, genome editing, a set of highly accurate tools for introducing specific genetic variations, has been taken into use worldwide. CRISPR/Cas9 is perhaps the best-known and most widely adopted example of those tools (Hilscher et al., 2017). The development of genome editing methods has been widely celebrated in the scientific community for several reasons. As a research tool, they offer an efficient platform for analysis of gene function through reverse genetics. Moreover, they offer a means of knocking out a gene whose function is known, in order to alter an associated crop trait (Yin et al., 2017). Recently, the advent of base editing makes possible the tweaking of gene function, in essence through the creation of targeted allelic variation (Kim, 2018). The issue of off-site mutations by CRISPR/Cas9, which together with a lack of targeting is also the major drawback of chemical- and radiation-based mutagenesis, has been given attention by researchers. Editing experiments indicate that off-site mutations are extremely rare or undetectable (Feng et al., 2018; Lee et al., 2019), even if potential sites can be identified by software. Given the low level of off-site mutations, back-crossing of the T0 generation will eliminate the secondary mutations with high efficiency, unlike for conventionally mutagenized lines. Allowing fishing by dynamite but forbidding fish hooks and lures Given the highly accurate nature of CRISPR/Cas9 -mediated editing compared to conventional mutagenesis, why did the ECJ take a laissez faire approach to varieties produced with the latter, but subject genome-edited varieties to onerous regulation as a GMOs? The ruling is equivalent to allowing fishing by dynamite but forbidding fish hooks and lures. Although the Cas9 and guide RNA (gRNA) construct is often transformed into plants during the editing process, these can be segregated away in the T1 and subsequent generations. Moreover, for vegetatively propagated ª 2019 The Authors. Plant Biotechnology Journal published by Society for Experimental Biology and The Association of Applied Biologists and John Wiley & Sons Ltd. This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited. 1 Plant Biotechnology Journal (2019), pp. 1–3 doi: 10.1111/pbi.13200 https://orcid.org/0000-0002-4126-6177 https://orcid.org/0000-0002-4126-6177 https://orcid.org/0000-0002-4126-6177 mailto: crops and perennials, transgenesis-free methods have been developed (Danilo et al., 2019). To understand why the ECJ nevertheless regards edited plants as GMOs, regardless of the presence of the construct, it is useful to look at the ruling. The judgement of 25 July 2018 (Case C-528/16; http://curia.europa.e u/juris/documents.jsf?num=c-528/162018) cites Directive 2001/ 18 (https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex% 3A32001L0018), which regulates GMOs, and applies the ‘pre- cautionary principle’ for new approaches. However, 2001/18 excludes under its Annex 1B ‘certain techniques of genetic modification which. . .have a long safety record’ and do not involve recombinant DNA, in particular mutagenesis. So how did genome editing as a mutagenesis method fall afoul of the Court? The trouble appears to be a linguistic and logical tangle over ‘modification’. Under 2001/18, a GMO is an organism whose DNA has been altered ‘in a way that does not occur naturally’. ‘Mutagenesis’ is excluded under 2001/18 if not involving the use of a ‘genetically modified organism’. Now, the Court finds that the editing techniques in particular alter DNA in ‘a way that does not occur naturally’ and therefore gener- ate GMOs. This is because while Annex 1 A and Annex 1 B of 2001/18 include only recombinant methods in vitro or in vivo as well as cell fusion as making GMOs, they do not explicitly exclude mutagenesis because it is not included in the list not making GMOs (e.g., in vitro fertilization, polyploidy induction). Moreover, 2001/18 held mutagenesis as a ‘technique of genetic modifica- tion’, even if not leading to a GMO. So the Curia uses the original confusions in 2001/18, whereby DNA can be modified but not result in a genetically modified organism under law if the method used had been ‘conventional’ with a ‘long safety record’. It holds that the risks of new mutagenesis techniques possibly may be the same as those of transgenesis, that the alterations are ‘unnatural’, so therefore the precautionary principle holds and the new methods must be regulated like transgenesis. Thus, the judges, ignoring the science, forced genome editing under the outmoded Directive 2001/18. The idea that a technique, which uses a process found in nature, is ‘unnatural’ is illogical. The idea that a single mutation could pose risks, which the same mutation mixed in with a thousand others does not pose, is nonsensical. The older, scattershot methods introduce random changes throughout the DNA, many of which remain in the final variety placed on the market and have undetermined effects. In contrast, genome editing is highly accurate and can only be undertaken with precise knowledge of the target gene. Thus, it is a wonderment that the ECJ ignored the statements of EU advice bodies, both the Scientific Advice Mechanism (SAM) of the European Commission and the European Food Safety Agency (EFSA), which held edited plants to be equivalent to those produced by conventional means. In contrast to the final EJC view, the preliminary ruling of EU Advocate General Michal Bobek (http://curia.europa.eu/juris/d ocument/document.jsf?text=&docxml:id=198532&pageIndex= 0&docxml:lang=EN) did suggest a channel by which genome- edited plants might be outside the regulatory framework but nevertheless GMOs. His opinion is based on two principles: first, triggering of the precautionary principle must be based on broad scientific data and not merely fear of risk; second, the definition of mutagenesis cannot be fixed to its meaning at the turn of the millennium, just as that of ‘vehicle’ or ‘means of communication’ cannot be restricted to their sense of two centuries ago, but rather be adjusted to include newer approaches. Hence, like conventional mutagenized lines, edited lines would outside the regulatory framework of 2001/18, however, with the reservations that new methods must ‘. . .not involve the use of recombinant nucleic acid molecules or GMOs’. These caveats are very unclear, because Bobek defines neither ‘involvement’ nor ‘recombinant’. His view appears to differ from 2001/18 itself (Annex 1A Part 1 (1)), whereby the recombinant nucleic acids in regulated GMOs must be ‘incorporated’ where they ‘do not naturally occur’ and be ‘capable of continued propagation’. In any case, the EJC finally maintained a premodern view of mutagenesis. Response to the ECJ ruling The response to the ruling among the worldwide scientific community has been universally excoriating. The European Plant Science Organisation (EPSO), representing 200 research institu- tions from 30 countries and over 26 000 people working in plant science, expressed disappointment and noted the lost opportuni- ties for Europe. A consortium of 116 European research institu- tions spearheaded by VIB/University of Ghent sent an open letter to EC President Jean-Claude Juncker detailing their deep concern over the downsides. A coalition of 13 countries from around the world issued a statement at an autumn 2018 WTO meeting, supporting policies that enable innovation by genome editing. Consequences of the ruling European Parliament and Council Directives need to be ‘trans- posed’, that is, implemented in national law, for which the ECJ ruling will cause no end of trouble. The ruling will be impossible to enforce because edited plant varieties are indistinguishable from ones derived from chemical or radiation mutagenesis or from crosses to exotic germplasm. So Member States will find it difficult to enforce laws based on Directive 2015/412, the extension of 2001/18 that allows them to prohibit cultivation of genetically modified crops on part or all of their territories. Two cultivars with identical nucleotide changes, one made by editing and the other not, neither with exogenous DNA, will need to be separately regulated under the law. Foods that contain more than 0.9% GMOs should be labelled for sale in the EU; however, edited ingredients will not be identifiable by their DNA. Foreign producers in countries not regulating genome-edited crops as GMOs (Table 1) have no legal responsibility to track or label them; either all food products from such sources will need to be banned, or the ruling will be meaningless. This has the potential to raise serious international trade issues. The decision by the ECJ is moreover simply bad policy for Europe. Big agribusiness has the expertise and deep pockets to overcome the regulatory hurdles of GMO legislation. In fact, the judgement gives them an open playing field by restricting the entry of small players, such as many breeders in Europe. Permission only to import a GMO on average can cost €11 m–€16.7 m and take 6 years (https:// www.europabio.org/agricultural-biotech/faq/gmos-and-the-eur opean-union/how-long-does-it-take-gm-crop-import-be-approved- and-how-much-does-cost). Giventhat at least 15 gene-editedplants, most from small players, had been developed by 2018 in the United States alone (https://www.theparliamentmagazine.eu/articles/part ner_article/europabio/how-europe-has-priced-out-innovation-exa mple-plants), solutions to make crops more sustainable, healthy, healthful and productive will be sought outside Europe. Statements by several large breeders indicate that they will either breed edited crops for markets outside Europe, move their editing research from Europe, or both (https://european-biotechnology.com/up-to-date/ backgrounds-stories/story/cjeu-ruling-triggers-exodus-of-eu-plant-re search.html). The growing list of countries (Table 1) that have either ª 2019 The Authors. Plant Biotechnology Journal published by Society for Experimental Biology and The Association of Applied Biologists and John Wiley & Sons Ltd., 1–3 Alan H. Schulman et al.2 http://curia.europa.eu/juris/documents.jsf?num=c-528/162018 http://curia.europa.eu/juris/documents.jsf?num=c-528/162018 https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001L0018 https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001L0018 http://curia.europa.eu/juris/document/document.jsf?text=&docxml:id=198532&pageIndex=0&docxml:lang=EN http://curia.europa.eu/juris/document/document.jsf?text=&docxml:id=198532&pageIndex=0&docxml:lang=EN http://curia.europa.eu/juris/document/document.jsf?text=&docxml:id=198532&pageIndex=0&docxml:lang=EN https://www.europabio.org/agricultural-biotech/faq/gmos-and-the-european-union/how-long-does-it-take-gm-crop-import-be-approved-and-how-much-does-cost https://www.europabio.org/agricultural-biotech/faq/gmos-and-the-european-union/how-long-does-it-take-gm-crop-import-be-approved-and-how-much-does-cost https://www.europabio.org/agricultural-biotech/faq/gmos-and-the-european-union/how-long-does-it-take-gm-crop-import-be-approved-and-how-much-does-cost https://www.europabio.org/agricultural-biotech/faq/gmos-and-the-european-union/how-long-does-it-take-gm-crop-import-be-approved-and-how-much-does-cost https://www.theparliamentmagazine.eu/articles/partner_article/europabio/how-europe-has-priced-out-innovation-example-plants https://www.theparliamentmagazine.eu/articles/partner_article/europabio/how-europe-has-priced-out-innovation-example-plants https://www.theparliamentmagazine.eu/articles/partner_article/europabio/how-europe-has-priced-out-innovation-example-plants https://european-biotechnology.com/up-to-date/backgrounds-stories/story/cjeu-ruling-triggers-exodus-of-eu-plant-research.html https://european-biotechnology.com/up-to-date/backgrounds-stories/story/cjeu-ruling-triggers-exodus-of-eu-plant-research.html https://european-biotechnology.com/up-to-date/backgrounds-stories/story/cjeu-ruling-triggers-exodus-of-eu-plant-research.html excluded genome-edited varieties from GMO regulations or that implement product- and not process-based regulations grows by the month, leaving the EU increasingly isolated. Moreover, the paper- work and delays imposed on academic research and field trials will have a chilling effect, driving talent and innovation from Europe. In sum, novel crops will be developed for growing conditions outside of Europe by breeders outside Europe, with research and investment likewise directed elsewhere. European food producers will fail to receive locally sourced raw ingredients with improved and novel qualities to meet public needs. How forward? Europe and the rest of the world face enormous agricultural challenges. Meeting sustainable development goals for a popu- lation of 9.7 billion projected for 2050 with less fertilizer, a fixed water budget, on less land, and under a changing climate will require novel cultivars as rapidly as possible. Genome editing is a green solution, one of many tools that plant scientists, breeders, and farmers desperately need now. As the 116-institution letter to Juncker stated and EPSO likewise holds, the next Commission must urgently prioritize the matter, and plants with small genetic changes and no foreign genes must be outside of the regulatory regime. Ultimately, EU GMO regulations urgently need updating to a product-based and not method-based system. Current mutation-derived crops are cultivated on tens of millions of hectares. Likewise, edited varieties with targeted, knowledge- based changes can help to provide a secure, economically and environmentally sustainable food supply to all the world, should the regulatory authorities choose to rely on evidence for their decisions. Such crops are appearing outside Europe already; it is time for Europe to bring the benefits of its research investment in the plant sciences home. Acknowledgements A.H.S. acknowledges support under Natural Resource Institute Strategic project 41007-00119800 and Academy of Finland Decision 314961. We thank Dr. Diane Wray-Cahen, Foreign Agricultural Service, United States Department of Agriculture, for sharing information used in Table 1. Author contributions AHS conceived and wrote the manuscript; K-M.O-C and T.H.T. contributed to the concept as well as to the writing of manuscript and to critical revisions. All authors read and approved the final manuscript. Conflict of interest The authors declare that they have no competing financial interests. References Acevedo-Garcia, J., Spencer, D., Thieron, H., Reinst€adler, A., Hammond- Kosack, K., Phillips, A.L. and Panstruga, R. (2017) mlo-based powdery mildew resistance in hexaploid bread wheat generated by a non-transgenic TILLING approach. Plant Biotechnol. J. 15, 367–378. Danilo, B., Perrot, L., Mara, K., Botton, E., Nogu�e, F. and Mazier, M. (2019) Efficient and transgene-free gene targeting using Agrobacterium-mediated delivery of the CRISPR/Cas9 system in tomato. Plant Cell Rep. 38, 459–462. Feng, C., Su, H., Bai, H., Wang, R., Liu, Y., Guo, X., Liu, C. et al. (2018) High- efficiency genome editing using a dmc1 promoter-controlled CRISPR/Cas9 system in maize. Plant Biotechnol. J. 16, 1848–1857. Hilscher, J., B€urstmayr, H. and Stoger, E. (2017) Targeted modification of plant genomes for precision crop breeding. Biotechnol. J. 12, 1600173. Hussain, M., Iqbal, M.A., Till, B.J. and Rahman, M.U. (2018) Identification of induced mutations in hexaploid wheat genome using exome capture assay. PLoS One, 13, e0201918. Kim, J.S. (2018) Precision genome engineering through adenine and cytosine base editing. Nat. Plants, 4, 148–151. Lee, K., Zhang, Y., Kleinstiver, B.P., Guo, J., Aryee, M., Miller, J., Malzahn, A. et al. (2019) Activities and specificities of CRISPR/Cas9 and Cas12a nucleases for targeted mutagenesis in maize. Plant Biotechnol. J. 17, 362–372. Spencer-Lopes, M.M., Forster, B.P. and Jankuloski, L., eds. (2018) Manual on Mutation Breeding, 3rd ed. Rome, Italy: Food and Agriculture Organization of the United Nations. Stadler, L.J. (1930) Some genetic effects of X-rays in plants. J. Heredity, 21, 3–19. Yin, X., Biswal, A.K., Dionora, J., Perdigon, K.M., Balahadia, C.P., Mazumdar, S., Chater, C. et al. (2017) CRISPR-Cas9 and CRISPR-Cpf1 mediated targeting of a stomatal developmental gene EPFL9 in rice. Plant Cell Rep. 36, 745–757. Table 1 Current regulatory status of plant genome editing for selected countries outside the EU Region/ country Current genome editing status Example products in market pipeline North America Canada Product-, not technology- based. USA Not GMO At least 20 products, including high-oleic-acid soy oil; high- fibre wheat; alfalfa; cold- storable potato; reduced- browning potato; coeliac- friendly wheat; maize with waxy starch South America Argentina Not GMO At least 10 pending plant varieties Brazil Not GMO Cacao Chile Not GMO Columbia Not GMO Micro-Tom tomatoes Honduras Not GMO Paraguay Not GMO Uruguay Expected to harmonize with other South American countries Other Australia Editing without template not regulated as GMO Israel Not GMO if no transgene Japan Not GMO New Zealand GMO Norway Not regulated as GMO if change can occur by conventional methods Philippines Not GMO Russia New decree exempts GE crops from GM regulations Switzerland Draft revision to GMO law expected 2019 ª 2019 The Authors. Plant Biotechnology Journal published by Society for Experimental Biology and The Association of Applied Biologists and John Wiley & Sons Ltd., 1–3 A future for genome-edited crops in Europe? 3 
work_z4jhlzxbsramtdtwxtr4xq5qfi	----	57 Restorativna pravda između teorije i prakse Re­sto­ra­tiv­na­prav­da­u­kri­vič­no­prav­nom­si­ste­mu Da ni ca va si lje vić-prO Da nO vić* Po zi ci o ni ra nje re sto ra tiv ne prav de unu tar kri vič nog pra vo su đa je jed no od ak tu el nih pi ta nja ko je za o ku plja pa žnju te o re ti ča ra i prak ti ča ra ko ji se ba ve ovom ma te ri jom. To kom po sled njih de ce ni ja pro ce si re sto ra tiv ne prav de su pre te žno ko ri šće ni u obla sti ma lo let nič kog pra vo su đa u slu ča je vi ma lak ših kri vič nih de la ko je vr še ma lo let ni ci. Broj na za ko no dav stva u Evro pi, SAD, Ka na di, Austra li ji ima ju kri vič no prav ne pro pi se ko ji sa dr že od red be o pri me ni re sto ra tiv nih pro ce sa u svr hu skre ta nja kri vič nog po stup ka. No vi je ini- ci ja ti ve otva ra ju mo guć nost pri me ne po stu pa ka re sto ra tiv ne prav de i u slu ča je vi ma te žih kri vič nih de la od ra slih uči ni la ca. U ovom tek stu dat je pre gled te o rij skih raz ma tra nja i prak tič nih pi ta nja o za da ci ma i do ma ša ji ma re sto ra tiv ne prav de u kri vič nom pra vo su đu, što bi mo glo po slu ži ti za sa gle da va nje mo guć no sti raz vo ja i pri me ne re sto ra tiv nih po stu- pa ka u do ma ćem kri vič nom za ko no dav stvu. Ključ ne re či: re sto ra tiv na prav da, kri vič no pra vo su đe. Uvod Ako po sma tra mo raz li či te for me re sto ra tiv ne prav de mo že se za klju či ti da nje nu su šti nu či ni slo bo dan do go vor stra na ko je su uklju če ne u pro ces. Ovaj de mo krat ski, ili ka ko ka že Bra it hwa i te (2002) „re pu bli kan ski“ ele ment re sto- ra tiv ne prav de, od ra ža va či nje ni cu da je sva ki re sto ra tiv ni po stu pak je din- stven kao što je je din stve no sva ko kri vič no de lo i uče sni ci u re sto ra tiv nom po stup ku. To zna či da se „re sto ra tiv na prav da uvek iz no va kre i ra ka da se uče- sni ci oku pe da raz ma tra ju pi ta nja u ve zi kri vič nog de la i nje go vih po sle di ca... Ne po sto je za pa ko va ne ulo ge, po stup ci i re še nja ko ja se mo gu sa mo ski nu ti TEMIDA Septembar 2010, str. 57-68 ISSN: 1450-6637 DOI: 10.2298/TEM1003057V Izvorni naučni rad * Mr Da ni ca Va si lje vić-Pro da no vić je asi stent na Fa kul te tu za spe ci jal nu edu ka ci ju i re ha bi li ta ci- ju Uni ver zi te ta u Be o gra du, E-mail: da ni ca.v@se zam pro.rs Da ni ca Va si lje vić-Pro da no vić 58 sa po li ce.“ (Sha pland i sar., 2006: 507). Upra vo ovaj aspekt pru ža re sto ra tiv noj prav di sna gu i kre a tiv nost da uti če na pro me ne u ži vo ti ma lju di. Me đu tim, ka da je reč o kri vič no prav nim pred me ti ma ova „de mo krat ska ne pred vi di vost“ re sto ra tiv ne prav de je ogra ni če na, pre sve ga „nor ma tiv nim ide ja ma o prav di sa mih uče sni ka re sto ra tiv nog po stup ka“ (Sha pland i sar., 2006: 507). Za raz li ku od dru gih for mi, re sto ra tiv na prav da unu tar si ste ma kri- vič nog pra vo su đa se na la zi na dru ga či joj sce ni na ko joj su ulo ge žr tve i pre- stup ni ka una pred od re đe ne. Tra di ci o nal no kri vič no pra vo su đe je za o ku plje no pro ce snim pi ta nji ma, utvr đi va njem či nje nič nog sta nja, od go vor no sti, kri vi ce, sank ci o ni sa njem pre kr ši o ca za ko na i pr ven stve no je za in te re so va no za dve ka te go ri je uče sni ka: okri vlje nog i sve do ka. U ovoj po de li ulo ga za da tak žr tve je da pri ja vi kri vič no de lo po li ci ji, pru ži do ka ze tu ži la štvu, sve do či na su du, is tak ne imo vin sko-prav ni zah tev. Ova kvo kri vič no pra vo su đe ni je fo ku si- ra no na in te re se žr tve, nje ne po tre be, ose ća nja, sta vo ve i oče ki va nja. S dru ge stra ne, žr tvu naj če šće ma lo in te re su je sa mo kr še nje za ko na, pa čak i sank ci- o ni sa nje pre stup ni ka, već je njen pri mar ni in te res ostva ri va nje sa tis fak ci je za pre tr plje nu po vre du, po dr ška i opo ra vak, na dok na da šte te ko ja joj je na ne ta. Re sto ra tiv na prav da sa svo jim vred no sti ma i prin ci pi ma na sto ji da us po sta vi rav no te žu ova dva in te re sa – za šti ta dru štva i dru štve nih vred no sti s jed ne i za šti ta pra va i in te re sa žr tve s dru ge stra ne. Upra vo ono što tra di ci o nal na prav da, za sno va na na re tri bu tiv nom pri stu pu, ne uspe va. Pro ce si re sto ra tiv ne prav de se du gi niz go di na pri me nju ju u za ko no dav- stvi ma ši rom Evro pe, SAD, Ka na de, Austra li je, No vog Ze lan da u obla sti ma lo- let nič kog pra vo su đa. Nji ho va pri me na je prak tič no ru tin ska za raz li či te ka te- go ri je lak ših i sred nje te ških kri vič nih de la ko je iz vr ša va ju ma lo let ni ci: sit ne kra đe, lak še pro val ne kra đe, de la iz obla sti sa o bra ća ja, vr šnjač ko na si lje i sl. Jed no od osnov nih pi ta nja ko je po sta vlja ju za stup ni ci re sto ra tiv ne prav de je u ko joj me ri ona mo že bi ti in te gri sa na u si stem kri vič nog pra vo su đa, od no sno, ka ko Bra it hwa i te na vo di (Hud son, 2002: 618), u ko joj me ri bi prin ci pe for mal- nog kri vič nog pra vo su đa tre ba lo in kor po ri ra ti u re sto ra tiv nu prav du? Cilj ovog ra da je da uka že na ne ke mo guć no sti pri me ne po stu pa ka re sto ra tiv ne prav de unu tar kri vič no prav nog si ste ma, što bi mo glo po slu ži ti kao smer ni ca za nje nu ši ru im ple men ta ci ju u do ma ćem kri vič nom za ko no dav stvu. Temida 59 Re­sto­ra­tiv­na­i­re­tri­bu­tiv­na­prav­da Ra na shva ta nja o ulo zi re sto ra tiv ne prav de su uti ca la na nje no po zi ci o ni ra- nje kao al ter na ti ve tra di ci o nal noj kri vič noj re ak ci ji na pre stup ni štvo, tzv. re tri- bu tiv noj prav di. Taj su prot sta vlje ni od nos i da nas za go va ra ju po je di ni za stup- ni ci re sto ra tiv ne prav de ka ko bi is ta kli nje nu nad moć u od no su na re tri bu tiv nu prav du. Naj če šće se na vo de sle de će raz li ke: (1) re sto ra tiv na prav da je fo ku si ra na na po pra vlja nje šte te pro u zro ko va ne kri- vič nim de lom, dok se re tri bu tiv na prav da ba vi ka žnja va njem za uči nje no kri vič no de lo; (2) re sto ra tiv nu prav du ka rak te ri še di ja log i pre go va ra nje iz me đu za in te re so- va nih stra na, dok re tri bu tiv na prav da pod ra zu me va ne pri ja telj ski od nos me đu nji ma; (3) re sto ra tiv na prav da pret po sta vlja da po je din ci i or ga ni za ci je iz za jed- ni ce igra ju ak tiv nu ulo gu, dok u re tri bu tiv noj prav di za jed ni cu za stu pa ju dr žav ni or ga ni (Daly, 2002: 58). Kat hleen Daly ove su prot no sti opi su je kao je dan od mi to va re sto ra tiv ne prav de; kao po jed no sta vlje no vi đe nje ko je ima za cilj da sve ele men te re sto ra- tiv ne prav de pri ka že kao do bre, dok se sve što je po ve za no sa re tri bu tiv nom prav dom ozna ča va kao lo še. Autor ka sma tra da su prot sta vlje ne prin ci pe re tri- bu ci je i re pa ra ci je tre ba do ve sti u jed nu ra van i po sma tra ti kao me đu sob no za vi sne, pri če mu uka zu je na či nje ni cu da su re tri bu tiv ni ele men ti pri sut ni i u re sto ra tiv nim pro ce si ma. Po što se ter mi ni re sto ra tiv na i re tri bu tiv na če sto ko ri ste kao me ta fo re za do bru i lo šu prav du, autor ka ra di je go vo ri o „sta roj“ i „no voj“ prav di. Pod „sta rom“ prav dom Daly pod ra zu me va pra vo sud nu prak su ko ja ne do pu šta in ter ak ci ju iz me đu žr tve i pre stup ni ka, gde glav nu reč vo de prav ni ci i dru gi eks per ti ko ji do no se od lu ke. „No va“ prav da ob u hva ta raz li či te ob li ke prak se ko ja oku plja za jed no žr tve i pre stup ni ke (i dru ge za in te re so va ne stra ne) u pro ce su u ko me eks per ti i la i ci za jed no do no se od lu ke ko je ima ju za cilj po pra vlja nje šte te ko ja je kri vič nim de lom pri či nje na žr tvi, pre stup ni ku i dru gim čla no vi ma za jed ni ce (Daly, 2002: 61). Ra di kal ni za stup ni ci bi lo ko je od „su prot sta vlje nih“ stra na sma tra ju da ide a lan kri vič no prav ni si stem tre ba da bu de ba zi ran na sa mo jed nom ti pu prav de, bez ika kvog me ša nja ele me na ta dva kon cep ta. Ve ći na auto ra/autor ki, me đu tim, sma tra da re sto ra tiv nu prav du ne tre ba po sma tra ti sa mo kao al te r- na ti vu kri vič no prav nom si ste mu jer ona (još uvek) ne ma moć da za me ni for- Da ni ca Va si lje vić-Pro da no vić 60 mal ni kri vič no prav ni po stu pak. Li eb mann na vo di da u ne kim ze mlja ma, kao što su Austri ja, No vi Ze land i Nor ve ška, re sto ra tiv na prav da ne pred sta vlja sa mo al te r na ti vu kri vič no prav nom si ste mu, već či ni nje gov sa stav ni deo. Ona pred sta vlja nor mu, a pra vo sud ni si stem je tu kao op ci ja, uko li ko re sto ra tiv ni po stu pak ne mo že da se spro ve de (Li eb mann, 2007: 31). Tony Mar shall go vo ri o kon cep tu „in te gri sa ne – ce lo vi te“ prav de pre ma ko me re sto ra tiv na prav da „u što ve ćoj me ri tre ba i mo že bi ti in te gri sa na u prav ni si stem kao kom ple men tar ni pro ces ko ji una pre đu je kva li tet, efek tiv- nost i efi ka snost prav de u ce li ni. Na taj na čin oba pro ce sa pod u pi ru je dan dru gi na obo stra nu ko rist i raz vi ja ju se u prav cu jed ni stve nog si ste ma u ko me za jed ni ca i for mal ne in sti tu ci je uza jam no sa ra đu ju“ (Mar shall, 1999: 8). Sa nja Ćo pić se, ta ko đe, za la že za shva ta nje o kom pa ti bil no sti ova dva ob li ka re a go- va nja na kri mi na li tet uz kon sta ta ci ju da je „te ško pri hva ti ti di ho tom nu po de lu na re sto ra tiv ni i re tri bu tiv ni si stem ko ji bi po sto ja li ne za vi sno je dan od dru- gog“, po seb no ka da se ima u vi du da su u ve ći ni kri vič no prav nih si ste ma u sve tu raz li či ti ele men ti re sto ra tiv ne prav de u „ma njoj ili ve ćoj me ri in te gri sa ni u po sto je ći si stem dr žav nog re a go va nja na kri mi na li tet“ (Ćo pić, 2007: 30). Po­zi­ci­o­ni­ra­nje­re­sto­ra­tiv­ne­prav­de­u­kri­vič­nom­za­ko­no­dav­stvu Po kret re sto ra tiv ne prav de ima zna čaj ne ko re ne u abo li ci o ni stič kom po kre tu či ji za go vor ni ci upu ću ju ve li ke kri ti ke prak si pri me ne ka zne za tvo ra. Iako se pro ce si re sto ra tiv ne prav de če sto pred sta vlja ju kao al ter na ti va za tva- ra nju, G. Johnsto ne na gla ša va da je „bi lo ma lo uspe ha u po ku ša ju da se oni pri me ne kao al ter na ti va ka zne za tvo ra“ (Johnsto ne, 2007: 16). Po stup ci re sto- ra tiv ne prav de se u prak si pre te žno ko ri ste u slu ča je vi ma u ko ji ma se obič no ne iz ri če ka zna za tvo ra, iako po sto je iz ve sni pri me ri da se na No vom Ze lan du re sto ra tiv ni pro ce si ko ri ste kao al te r na ti va za tva ra nju (Johnsto ne, 2007). Ume- re ni ji pred stav ni ci po kre ta re sto ra tiv ne prav de ipak sma tra ju da bi za dat ke re sto ra tiv ne prav de tre ba lo ogra ni či ti na slu ča je ve lak ših kri vič nih de la, i to ne u funk ci ji al te r na ti va ka zne za tvo ra, već dru gih ne za tvor skih sank ci ja. Re sto ra tiv na prav da u kri vič nim pred me ti ma se pri me nju je is klju či vo u slu ča je vi ma ka da pre stup nik pri zna da je iz vr šio pred met no de lo, pri hva ti od go vor nost i iz ra zi sprem nost za uče stvo va nje u re sto ra tiv nom po stup ku. To sva ka ko ne is klju ču je nje go vu kri vič nu od go vor nost, jer re sto ra tiv na prav da ne ma moć da za me ni for mal ni kri vič no prav ni po stu pak. Sto ga ne ki auto ri iz ra- Temida 61 ža va ju za bri nu tost da pri me na re sto ra tiv nih po stu pa ka u kri vič nim pred me- ti ma mo že na ru ši ti pro ce sna pra va optu že nog, dok s dru ge stra ne, sna ga kri- vič no prav nog si ste ma mo že pot ko pa ti i pro me ni ti ci lje ve re sto ra tiv ne prav de. U naj ve ćem bro ju za ko no dav sta va u sve tu ne po sto je od red be ko ji ma se re sto ra tiv na prav da po zi ci o ni ra unu tar si ste ma kri vič nog pra vo su đa. M. Li eb- mann na vo di da se u kri vič nom si ste mu En gle ske i Vel sa re sto ra tiv na prav da tre ti ra kao „op ci o ni do da tak u si ste mu; ne što što se mo že po ku ša ti, ali ni je oba- ve zno“ (Li eb mann, 2007: 31). To je zna čaj no u tom smi slu što se sma nju je pri- ti sak na žr tvu da uzme uče šće u po stup ku, dok isto vre me no i pre stup nik ima mo guć nost iz bo ra. S dru ge stra ne, ova kav po lo žaj osta vlja re sto ra tiv nu prav du po stra ni, kao spo red nu ak tiv nost. Sher man i Strang ta ko đe iz ve šta va ju da se re sto ra tiv na prav da u kri vič nim pred me ti ma u En gle skoj i Vel su ko ri sti u raz li či- tim si tu a ci ja ma, ali go to vo u svim slu ča je vi ma kao do da tak kri vič nom po stup ku, a ne kao al ter na ti va (Sher man, Strang, 2007). U prak si se raz li či te for me po stu- pa ka re sto ra tiv ne prav de če sto pri me nju ju na kon iz ri ca nja pre su de, u post-kri- vič noj fa zi, u okvi ru pro gra ma ko je spro vo de pro ba ci o ne slu žbe. Pro gra mi u ta kvom ob li ku ob u hva ta ju ko mu ni ka ci ju pre stup ni ka sa žr tvom, ne po sred no ili pi sa nim pu tem, i pred sta vlja ju deo po stup ka iz vr še nja kri vič ne sank ci je u za jed- ni ci. Od ne dav no, pro gra mi re sto ra tiv ne prav de se mo gu pri me nji va ti i u fa zi kri- vič nog po stup ka pre iz ri ca nja pre su de, na kon što se pre stup nik iz ja snio da pri- zna je kri vi cu. U tom slu ča ju su di ja pri od me ra va nju ka zne mo že tre ti ra ti uče šće pre stup ni ka u re sto ra tiv nom po stup ku kao olak ša va ju ću okol nost. Uko li ko žr tva ni je volj na da uče stvu je u re sto ra tiv nom pro ce su, sprem nost pre stup ni ka sud ta ko đe mo že sma tra ti olak ša va ju ćom okol no šću, a u ta kvom slu ča ju je mo gu će i od vi ja nje pro ce sa bez pri su stva žr tve (vic tim-ab sent con fe ren ce). In te re sant no je da se pro ce si re sto ra tiv ne prav de u En gle skoj i Vel su, po go to vo u pe ri o du od 2001. do 2005. go di ne, ko ri ste i u slu ča je vi ma te žih kri vič nih de la (raz boj ni štva i pro val ne kra đe) ko ja iz vr ša va ju pre stup ni ci sa du žom kri mi nal nom isto ri jom. Pri me na re sto ra tiv nih pro gra ma je u ve li koj me ri pro ši re na i na kri vič na de la na si lja u po ro di ci, iako se du go vre me na sma tra lo da se ona na la ze iz van do ma- ša ja re sto ra tiv ne prav de.1 Po je di ni auto ri i autor ke, po put Ju lie Stubbs, me đu- tim, upo zo ra va ju da ne ke od ka rak te ri sti ka re sto ra tiv ne prav de ko je se sma tra ju ko ri snim za žr tve ne mo gu bi ti pri me nje ne u slu ča je vi ma na si lja u po ro di ci. Autor ka na vo di da uobi ča je na tvrd nja da žr tva mo že ima ti ko ri sti od su sre ta sa 1 U okru gu Ham pshi re re sto ra tiv ni pro gram pod na zi vom Do ve Pro ject ob u hva ti go di šnje pre ko 600 slu ča je va na si lja u po ro di ci. Pre ma: Sher man, W. L., Strang, H. (2007) Da ni ca Va si lje vić-Pro da no vić 62 pre stup ni kom, sa zna nja da se kri vič no de lo ne će po no vi ti i da ne ma raz lo ga da se pla ši pre stup ni ka ni je pri men lji va za žr tve na si lja u po ro di ci. Pri ro da na si lja u po ro di ci je ta kva da ono pred sta vlja „is po lja va nje mo ći i kon tro le, pe ri o dič no se po na vlja, mo že da eska li ra to kom vre me na i mo že ima ti dej stvo i na dru ge oso be osim pri mar ne žr tve...“ (Stubbs, 2007: 171). Pri me na po stu pa ka re sto ra tiv ne prav de se u naj ve ćem bro ju za ko no- dav sta va nor ma tiv no ure đu je kroz za ko ne ko ji re gu li še kri vič ni po stu pak. U Austri ji je usva ja njem amand ma na na Za kon o kri vič nom po stup ku iz 1999. go di ne uve den „di ver zi o ni pa ket me ra“ ko jim se pru ža dis kre ci o no pra vo tu ži- o cu da ne po kre ne po stu pak u slu ča je vi ma ka da se po stig ne na god ba iz me đu žr tve i uči ni o ca. Me di ja ci ja se mo že pri me ni ti za kri vič na de la za ko ja je za pre- će na nov ča na ka zna ili ka zna za tvo ra do 5 go di na (10 go di na u slu ča ju ma lo- let ni ka) (Mi ers, 2001: 7). Slič no je u Fran cu skoj gde se me di ja ci ja žr tva-pre stup- nik spro vo di i u slu ča ju ma lo let nih i od ra slih uči ni o ca. Di ver zi o ni efe kat me di- ja ci je se mo že ostva ri ti sa mo u fa zi pre po kre ta nja kri vič nog po stup ka. U kri vič nom za ko no dav stvu Ne mač ke po sto ji dvo ja ka struk tu ra re sto ra- tiv nih me ra. Pr va ka te go ri ja se od no si na me di ja ci ju i kom pen za ci ju u kon tek- stu di ver zi je i pri me nju je se u pret kri vič noj fa zi, dok se dru ga mo že pri me ni ti i na kon što je po dig nu ta for mal na op tu žni ca. U ovom dru gom slu ča ju su di ja je nad le žan da pred lo ži spro vo đe nje po stup ka na dok na de ili po rav na nja uz sa gla snost jav nog tu ži o ca da od u sta ne od op tu žni ce (Mi ers, 2001: 32-38). Me di ja ci ja se mo že pri me ni ti za bi lo ko je kri vič no de lo uči nje no pro tiv kon- kret ne oso be, dok su is klju če na de la kao npr. zlo u po tre ba dro ga, kri vič na de la u obla sti sa o bra ća ja ili po re ske uta je. Uko li ko se po stu pak me di ja ci je uspe šno spro ve de i po stig ne spo ra zum o na dok na di ili re sti tu ci ji, sud to mo že sma- tra ti olak ša va ju ćom okol no šću pri od me ra va nju ka zne, a mo že okri vlje nog i oslo bo di ti ka zne uko li ko je za kri vič no de lo pro pi sa na ka zna za tvo ra do jed ne go di ne ili nov ča na ka zna do 360 dnev nih iz no sa. Bel gij ski kri vič no prav ni si stem raz li ku je tri ob li ka me di ja ci je: po li cij ska, pe nal na i me di ja ci ja u ci lju obe šte će nja. Po li cij ska me di ja ci ja se pri me nju je za lak ša imo vin ska de la i lak ša de la na si lja ka ko bi se po sti gao spo ra zum o fi nan- sij skoj ili ma te ri jal noj na dok na di. Me di ja ci ja u ci lju obe šte će nja (me di a tion for re dress) se pri me nju je za te ža kri vič na de la, ne is klju ču je kri vič nu od go vor nost uči ni o ca i ne pod ra zu me va auto mat sko skre ta nje po stup ka, već se tre ti ra kao olak ša va ju ća okol nost. Pe nal na me di ja ci ja je in sti tut ko ji sto ji na ras po la ga nju tu ži o cu kao uslov za od u sta ja nje od kri vič nog go nje nja. On mo že ob u hva ti ti na dok na du šte te žr tvi ili re pa ra ci ju, upu ći va nje na pro gram obu ke ili me di- Temida 63 cin ski tret man i rad u jav nom in te re su. Skre ta nje po stup ka je mo gu će za sva kri vič na de la za ko ja je pro pi sa na ka zna za tvo ra do dve go di ne. Me di ja ci ja ni je mo gu ća uko li ko je okri vlje ni već do bio sud ski po ziv, po ja vio se pred su dom ili je za dr žan u pri tvo ru (Mi ers, 2001: 12-13). Iz me na ma za ko na u En gle skoj i Vel su (Cri mi nal Ju sti ce Act 2003) omo gu- će no je da se po stup ci re sto ra tiv ne prav de ko ri ste i u svr hu skre ta nja kri vič nog po stup ka (di ver zi ja). Ta kva op ci ja po sto ji kao re zul tat us po sta vlja nja in sti tu ta uslov ne opo me ne (con di ti o nal ca u ti o ning) ko ja se mo že ko ri sti ti od stra ne tu ži- o ca kao al ter na ti va po kre ta nja kri vič nog po stup ka uko li ko je pre stup nik pri znao iz vr še nje kri vič nog de la i uko li ko je sa gla san da pri hva ti uslov nu opo me nu. Za raz li ku od obič ne opo me ne, tu ži lac mo že od re di ti pre stup ni ku uslo ve ko ji, po red re ha bi li ta ci je i/ili re sti tu ci je, mo gu ob u hva ta ti i uče stvo va nje u re sto ra tiv- nom pro ce su. Re sto ra tiv ni pro ces mo že pod ra zu me va ti kon takt pre stup ni ka sa žr tvom (ne po sre dan ili in di rek tan), a mo že bi ti ko ri šćen i u svr hu po sti za nja spo- ra zu ma o kom pen za ci ji, ak tiv no sti ma u ci lju re ha bi li ta ci je pre stup ni ka ili ne kim od vi do va re pa ra ci je šte te. U tom slu ča ju, spo ra zum po sta je osno va za od re đi- va nje uslo va opo me ne, pri če mu tu ži lac ima oba ve zu da pro ce ni u ko joj me ri spo ra zum za do vo lja va tri kri te ri ju ma: (1) da je pro por ci o na lan kri vič nom de lu, (2) re al no do sti žan u okvi ru od re đe nog vre men skog pe ri o da i (3) svr sis ho dan.2 Re­sto­ra­tiv­ni­pro­ce­si­u­za­tvor­skom­okru­že­nju U no vi je vre me u okvi ru po kre ta re sto ra tiv ne prav de se vo di po le mi ka o kon tro verz noj ide ji uklju či va nja re sto ra tiv nih pro ce sa u prak su iz vr še nja ka zne za tvo ra. Ve ći na auto ra sma tra da je ma lo ve ro vat no da će pro ce si re sto ra tiv ne prav de u ne ko do gled no vre me bi ti ko ri šće ni kao al ter na ti va ka zni za tvo ra. Ume sto to ga, po kre ću se kam pa nje i eks pe ri men ti še sa pri me nom prin ci pa re sto ra tiv ne prav de u za tvor skim uslo vi ma. G. Johnsto ne sma tra da se uti caj re sto ra tiv ne prav de na prak su pri me ne ka zne za tvo ra mo že po sma tra ti dvo- ja ko. S jed ne stra ne, ona do vo di u pi ta nje ve ro va nje da „pre kr ši o ci za slu žu ju is pa šta nje“, dok s dru ge stra ne su ge ri še da za tvor tre ba re fo r mi sa ti ka ko bi po slu žio re sto ra tiv nim, a ne re tri bu tiv nim ci lje vi ma (Johnsto ne, 2007: 20). Ovaj autor de li re sto ra tiv ne pro ce se ko ji se spro vo de u za tvor skim uslo vi ma pre ma 2 Vi še o to me: The Crown Pro se cu tion Ser vi ce. http://www.cps.gov.uk/Pu bli ca ti ons/ot hers/ con di ti o nal ca u ti o ning04.html. Da ni ca Va si lje vić-Pro da no vić 64 nji ho vom de lo va nju na iz vr še nje ka zne za tvo ra. Na jed nom kra ju se na la ze pro jek ti či ji je cilj po di za nje sve sti pre stup ni ka o šte ti ko ju je na neo kri vič nim de lom i oba ve zi da se u bu duć no sti uz dr ži od vr še nja kri vič nih de la (unu tar za tvo ra i na kon ot pu šta nja), ali bez te žnje da ta kav pro je kat do ne se zna čaj ni je pro me ne u za tvor skom si ste mu. Je dan od ta kvih pri me ra je pro je kat u Mi ne- so ti (Min ne so ta Sta te De part ment of Cor rec ti ons), ko ji ima za cilj da se pre stup- nik pod stak ne da na pi še pi smo iz vi nje nja žr tvi. Na dru gom kra ju se na la ze pro jek ti ko ji na ba zi prin ci pa re sto ra tiv ne prav de slu že kao smer ni ce za re for mu za tvor skog si ste ma – da kle, ko ji ma je glav ni cilj stva ra nje tzv. re sto ra tiv nih za tvo ra (Johnsto ne, 2007). Je dan pro- je kat ova kvog ti pa, Re sto ra ti ve Pri son Pro ject, spro ve den je na se ve ro i sto ku En gle ske od 2000-2004. go di ne ka ko bi se pred sta vio mo del za tva ra nja ko ji je pot pu no su pro tan sa vre me nom tren du iz grad nje teh no lo ški mo de r nih gra đe- vi na za „skla di šte nje pre stup ni ka bez ika kvog so ci jal nog, etič kog i svr sis hod- nog sa dr ža ja“ (Stern, 2005). U tek stu pod na zi vom Pri sons and the ir com mu ni- ti es, Vi vien Stern je opi sa la am bi ci o znu ide ju pri me ne re sto ra tiv ne prav de u ci lju tran sfor mi sa nja za tvo ra u sa svim dru ga či ju usta no vu či ja svr ha ne će bi ti ka žnja va nje, već pri pre ma nje za tvo re ni ka za ži vot u za jed ni ci. Pro je kat je imao če ti ri osnov na ele men ta: po ve zi va nje za tvo ra sa lo kal nom za jed ni com,• pod sti ca nje pre stup ni ka da oba vlja ju po slo ve od op šteg zna ča ja,• ja ča nje sve sti pre stup ni ka o ne ga tiv nim efek ti ma kri mi na la na žr tve,• iz grad nja al ter na tiv nog mo de la re ša va nja kon fli ka ta u za tvo ru (Coyle, 2008).• Je dan od naj zna čaj nih re zul ta ta pro jek ta je ve li ka re kon struk ci ja par ka u cen tru Midlsbroa, ko ji su u pot pu no sti ob no vi li za tvo re ni ci svo jim do bro volj- nim ra dom. Ovaj pro je kat, po znat pod na zi vom Al bert Park pro ject je imao ve li- kog od je ka u jav no sti, a re zul ta ti nje go ve eva lu a ci je su po ka za li vi sok ste pen za do volj stva i pre stup ni ka ko ji su u nje mu uče stvo va li i pred stav ni ka lo kal ne za jed ni ce (Coyle, 2008). Dru gi auto ri, po put Gu i do ni-ja su skep tič ni u po gle du mo guć no sti in te- gri sa nja prin ci pa re sto ra tiv ne prav de u in sti tu ci je kao što je za tvor. Kao uče- snik slič nog pro jek ta u to rin skom za tvo ru Le Val let te, on iz ra ža va bo ja zan da je „ve o ma te ško po mi ri ti prin ci pe i prak su re sto ra tiv ne prav de sa zah te vi ma to tal ne in sti tu ci je“ (Gu i do ni, 2003: 65). Iako ne is klju ču je mo guć nost da re sto- ra tiv na prav da mo že ima ti po zi ti van uti caj na „stva ra nje hu ma ni jih i de mo- krat ski jih uslo va u za tvo ru, raz voj bli ski jih od no sa sa spolj nom za jed ni com i Temida 65 stva ra nje uslo va za pro me nu ži vo ta pre stup ni ka“, Gu i do ni sma tra da „re sto ra- tiv na prav da ne mo že pro me ni ti ka rak te ri sti ke to tal ne in sti tu ci je bez ri zi ka da bu de uvu če na u za tvor sku ide o lo gi ju ka žnja va nja“ (Gu i do ni, 2003: 66). Ume- sto to ga, autor pred la že ma nje am bi ci o zan cilj re sto ra tiv ne prav de – al ter na- ti va za tvo ru, a ne nje go va re for ma. Za­klju­čak Re sto ra tiv na prav da, kao re la tiv no nov kon cept još uvek tra ga za svo jim me stom u kri vič no prav nom si ste mu. Reč je o ide ji ko ja u sre di šte in te re so va nja po sta vlja žr tvu, što za go vor ni ci tra di ci o nal nog kri vič nog pra vo su đa do ži vlja va ju kao „okre ta nje ce log si ste ma na gla vač ke“. Dru gi pro blem pred sta vlja či nje ni ca da sva ki uče snik re sto ra tiv nog po stup ka ima sop stve no vi đe nje pra vič no sti i po la zi sa su bjek tiv nog sta no vi šta. Ume re ni za go vor ni ci re sto ra tiv ne prav de za stu pa ju sta no vi šte da re sto ra tiv ne pro ce se ne tre ba po sma tra ti kao al ter na ti vu for mal- nom kri vič nom po stup ku, već te ži ti stva ra nju si ste ma ko ji će in te gri sa ti vred no sti oba kon cep ta u ci lju una pre đe nja kva li te ta i efek tiv nost prav de u ce li ni. Ve ći na re sto ra tiv nih po stu pa ka (naj če šće me di ja ci ja) ob u hva će nih kri vič- no prav nom le gi sla ti vom ima di ver zi o ni ka rak ter, što zna či da se pri me nju je u ci lju skre ta nja sa for mal ne pro ce du re u fa zi pre po kre ta nja ili to kom kri vič nog po stup ka. Od lu ka o od u sta ja nju od kri vič nog go nje nja je dis kre ci o no pra vo tu ži o ca, od no sno su di je, ko ji pro ce nju ju da li po sto je za kon ski pred u slo vi za spro vo đe nje po stup ka me di ja ci je. Re sto ra tiv na prav da još uvek ne ma moć da za me ni kri vič ni po stu pak, ali se nje ne „am bi ci je“ ne za vr ša va ju na pro- stom pre u sme ra va nju slu ča je va ko je kri vič no pra vo su đe ozna či mi nor nim ili ma nje dru štve no opa snim. U prak si po sto ji re la tiv no ma lo is ku sta va sa pri me- nom re sto ra tiv nih pro ce sa u okvi ru si ste ma kri vič nog pra vo su đa za od ra sle pre stup ni ke, i ona se pr ven stve no od no se na slu ča je ve lak ših kri vič nih de la. Me đu tim, u po je di nim za ko no dav stvi ma je pri met na ten den ci ja da se re sto ra- tiv nim po stup ci ma ob u hva te i te ža kri vič na de la (raz boj ni štva, pro val ne kra đe, kri vič na de la sa ele men ti ma na si lja). Po sto je i ini ci ja ti ve da ele men ti re sto ra- tiv ne prav de pro na đu me sto i u fa zi iz vr še nja kri vič nih sank ci ja, uz ra di kal ne ide je o tran sfor mi sa nju za tvo ra. Re sto ra tiv na prav da pro na la zi svo je me sto i u na šem kri vič nom za ko no- dav stvu za hva lju ju ći re for ma ma ko ji ma se u od re đe noj me ri po bolj ša va po lo- žaj žr tve i pru ža ju mo guć no sti za nje no ak tiv ni je uče šće u kri vič nom po stup ku Da ni ca Va si lje vić-Pro da no vić 66 (O to me vi še vi de ti: Ni ko lić-Ri sta no vić, Ćo pić, 2006; Ste va no vić, 2006; Mr vić- Pe tro vić, 2006). Kra jem 2010. go di ne oče ku je se i usva ja nje no vog Za ko na o me di ja ci ji, ko ji bi tre ba lo da stvo ri pred u slo ve za ši ru pri me nu me di ja ci je u kri vič nim pred me ti ma iz van for mal nog kri vič nog po stup ka. Tre nut na si tu a ci ja je ta kva da, kao što mno gi pri me ću ju, u na šoj ze mlji još uvek ima „vi še me di ja- to ra ne go me di ja ci je“ (Ne dić, 2009). Po stup ci re sto ra tiv ne prav de u kri vič nim pred me ti ma bi mo gli na ći ve ću pri me nu u do ma ćem za ko no dav stvu, ali je po red za kon ske re gu la ti ve neo p hod no ulo ži ti na por u ci lju edu ko va nja struč- nja ka (su di ja, tu ži la ca, advo ka ta...) kao i pra vo vre me nog in for mi sa nja stra na u su ko bu o pred no sti ma re ša va nja su ko ba iz van kri vič nog po stup ka. Sma tram da bi, kao što upo zo ra va ju po je di ni auto ri i autor ke, ipak tre ba lo bi ti ve o ma oba zriv pri li kom se lek ci je slu ča je va ko ji će bi ti ob u hva će ni re sto ra tiv nim pro- ce si ma. Po je di na kri vič na de la, kao što su na si lje u po ro di ci i rod no na si lje, zah te va ju ve o ma de li ka tan pri stup, pri če mu je ključ ni ele ment „in ter ak ci ja iz me đu uče sni ka u bez bed nom okru že nju“ (Sha pland i sar., 2006: 522). Re sto ra tiv na prav da nu di ve li ke mo guć no sti, a sa ma ide ja „vra ća nja kon- flik ta nje go vim vla sni ci ma“ (Chri stie, 1977) na i la zi na sve ma nji ot por za go vor- ni ka for mal ne kri vič no prav ne re ak ci je. Me đu tim, pi ta nje ho će li re sto ra tiv na prav da, kao što ka že B. Hud son (2002), osta ti sa mo „prav da na mar gi na ma“ ili će ući u glav ne to ko ve kri vič nog pra va, i da lje osta je otvo re no. Li­te­ra­tu­ra Bra it hwa i te, J. (2002) Re sto ra ti ve Ju sti ce and Re spon si ve Re gu la tion. New York: Ox ford Uni ver sity Press. Chri stie, N. (1977) Con flicts as pro perty. The Bri tish Jo ur nal of Cri mi no logy, 17(1), str. 1-15. Coyle, A. (2008) Un der stan ding pri sons. In ter na ti o nal Cen tre for Pri son Stu di es, http://www.ret hin king.org.nz/ima ges/new slet ter%20PDF/Is sue%2038/Coyle_Un de r- stan ding_Pri sons.pdf, Saj tu pri stu plje no: 15.07.2009. go di ne. Ćo pić, S. (2007) Po jam i osnov ni prin ci pi re sto ra tiv ne prav de. Te mi da, 1, str. 25-35. Daly, K. (2002) Re sto ra ti ve ju sti ce: The real story. Pu nis hment & So ci ety, 4(1), str. 55-79. Gu i do ni, O. (2003) The am bi va len ces of re sto ra ti ve ju sti ce: So me re flec ti ons on an Ita lian pri son pro ject. Con tem po rary Ju sti ce Re vi ew, 6(1), str. 55-68. Hud son, B. (2002) Re sto ra ti ve ju sti ce and gen de red vi o len ce. Di ver sion or ef fec ti ve ju sti ce? Bri tish Jo ur nal of Cri mi no logy, 42(3), str. 616-634. Temida 67 Johnsto ne, G. (2007) Re sto ra ti ve ju sti ce and the prac ti ce of im pri son ment. Pri son Ser- vi ce Jo ur nal, 174, str. 15-20. Li eb mann, M. (2007) Re sto ra ti ve ju sti ce: How it works. Lon don: Jes si ca Kin gsley Pu blis- hers. Mar shall, T. (1999) Re sto ra ti ve ju sti ce: An over vi ew. A re port by the Ho me Of fi ce. Lon don: Re se arch De ve lop ment and Sta ti stics Di rec to ra te, http://www.homeoffice.gov.uk/ rds/ pdfs/occ-resjus.pdf, Saj tu pri stu plje no: 20.05.2009. go di ne. Mi ers, D. (2001) An in ter na ti o nal re vi ew of re sto ra ti ve ju sti ce. Cri me re duc tion re se arch pa per 10. Lon don: Ho me Of fi ce. Mr vić-Pe tro vić, N. (2006) Al ter na tiv ne sank ci je i no vo za ko no dav stvo Re pu bli ke Sr bi je. Te mi da, 1, str. 55-59. Ne dić, B. (2009) Put ka prav di: Stra te gi ja raz vo ja i pri me ne me di ja ci je u Sr bi ji. U: Prav da u tran zi ci ji, on-li ne iz da nje, http://www.prav da u tran zi ci ji.com/pa ges/ar tic le. php?id=2169, Saj tu pri stu plje no: 15.10.2010. Ni ko lić-Ri sta no vić, V., Ćo pić, S. (2006) Po lo žaj žr tve u Sr bi ji: kla sič ni kri vič ni po stu pak i mo guć no sti re sto ra tiv ne prav de. Te mi da, 1, str. 67-75. Sha pland, J., At kin son, A., At kin son, H., Col led ge, E., Dig nan, J., Ho wes, M., Johnsto ne, J., Ro bin son, G., Sorsby, A. (2006) Si tu a ting re sto ra ti ve ju sti ce wit hin cri mi nal ju sti ce. The o re ti cal Cri mi no logy, 10(4), str. 505-532. Sher man, W.L., Strang, H. (2007) Re sto ra ti ve ju sti ce: the evi den ce. Lon don: The Smith In sti tu te. Stern, V. (2005). Pri sons and the ir com mu ni ti es: Te sting a new ap pro ach. An ac co unt of the re sto ra ti ve pri son pro ject 2000-2004. Lon don: In ter na ti o nal Cen tre for Pri son Stu- di es. Kings Col le ge Lon don. Ste va no vić, I. (2006) No va za kon ska re še nja o ma lo let ni ci ma: zna čaj al ter na ti va in sti- tu ci o nal nom tret ma nu (u sve tlu re in te gra ci je iz vr ši la ca i osna ži va nja žr ta va). Te mi da, 1, str. 61-66. Stubbs, J. (2007) Beyond apo logy? Do me stic vi o len ce and cri ti cal qu e sti ons for re sto- ra ti ve ju sti ce. Cri mi no logy and cri mi nal ju sti ce, 7(2), str. 169-187. The Crown Pro se cu tion Ser vi ce. http://www.cps.gov.uk/Pu bli ca ti ons/ot hers/con di ti- o nal ca u ti o ning04.html., Saj tu pri stu plje no: 10.07.2010. go di ne. Da ni ca Va si lje vić-Pro da no vić 68 Da ni ca va si lje vić-prO Da nO vić Re­sto­ra­ti­ve­ju­sti­ce­wit­hin­the­cri­mi­nal­ju­sti­ce­system Po si ti o ning of re sto ra ti ve ju sti ce wit hin the cri mi nal ju sti ce system is one of the cur rent qu e sti ons pre oc cupying the o rists and prac ti ti o ners in the fi eld. Du ring de ca- des re sto ra ti ve ju sti ce pro ces ses ha ve been pre do mi nantly used wit hin ju ve ni le ju sti ce systems for de a ling with mi nor of fen ces com mit ted by ju ve ni les. Num ber of ju ris dic ti- ons in Euro pe, USA, Ca na da, Austra lia ha ve cri mi nal co di fi ca ti ons con ta i ning pro vi si ons that ena ble use of re sto ra ti ve ju sti ce pro ces ses in aim of di ver sion. Re cent ini ti a ti ves cre- a te pos si bi lity of applying re sto ra ti ve pro ce du re in ca ses of se ri o us cri mes com mit ted by adult of fen ders. This ar tic le re vi ews the o re ti cal di scus si ons and prac ti cal is su es re la ting the sco pe and tasks of re sto ra ti ve ju sti ce wit hin cri mi nal ju sti ce, which may con tri bu te to the de ve lop ment and use of re sto ra ti ve pro ces ses in our cri mi nal ju sti ce system. Key words: re sto ra ti ve ju sti ce, cri mi nal ju sti ce. 
work_z5e5ny56erarxo7hu6gslx4ify	----	Department of Sociology – University of Wisconsin-Madison – UW–Madison Skip to main content University of Wisconsin–Madison Department of Sociology University of Wisconsin-Madison Search Menu About Chair’s Welcome Contact Us Make a Gift Department Committees Department Resources Honorary Visitor Request Request Changes to My Webpage or Department Site History News & Events In the News Race, Justice, and Inequality Calendar Seminars and Working Groups Annual Events Alumni Newsletter People Administrative Staff Sociology Faculty Emeritus Faculty – Both Sociology and C&E Affiliated Faculty, Department of Sociology Graduate Students Postdoctoral Fellows and Visitors Ph.D.s on the Job Market Board of Visitors Undergraduate Program Graduate Program Graduate Program For Prospective Students For Current Students Graduate Courses Syllabus Archive Student Life Diversity, Climate & Resources Placements of Recent Graduates PhD Alumni profile Research Research Overview Research Areas Seminars and Working Groups Centers and Organizations Research Resources Data Resources Publications Careers Career Resources for Undergraduates Ph.D.s on the Job Market Placements of Recent Graduates Alumni Make a Gift Board of Visitors Undergraduate Alumni Profiles Student Stories Alumni Connections Alumni Newsletter Send an Update Make a Gift The study of race, justice, and inequality is at the fore for many of our faculty and graduate students. See our research and resources on understanding and ameliorating racial inequality “Guided by the Wisconsin Idea of service to the citizens of Wisconsin and beyond, the Department of Sociology conducts world-class research on important local and global social issues and prepares students for meaningful careers and lives of engaged citizenship.” - Mission Statement of the Department of Sociology Our department is a well-knit community of faculty, staff, and students.  Under our umbrella, we pursue research that is leading many sociological subfields in new and different directions. We emphasize teaching and public service as well as research. Indeed, we draw no hard boundaries between our research, teaching, and service missions. We value and promote methodological, social, and cultural diversity. The Department of Sociology at the University of Wisconsin-Madison is committed to understanding and ameliorating racial inequality. We condemn the shooting of Jacob Blake by police in Kenosha as well as the killing of George Floyd, Breonna Taylor, Tony Robinson and many others before and since. We are adamantly against racism and bigotry in all of its forms. Resources on Race, Justice, and Inequality An Op-Ed Piece in the “New York Times” by Sociology Alumni Gianpaolo Baiocchi (Ph.D. 2001) and H. Jacob Carlson (Ph.D. 2020) In an op-ed article titled “A Fix for More Affordable Housing” in the March 4 edition of the “New York Times” Baiocchi and Carlson propose a plan to promote affordable housing during the difficult economic period in the United States caused by the COVID-19 pandemic.  After a review of what happened to housing after the 2018 financial crisis they write, “We propose the creation of the Social Housing Development Authority, a federal agency that would purchase distressed real estate, ensure it is livable and environmentally sound, and finance its transfer to the so-called social housing sector, including tenant cooperatives, community land trusts, nonprofits or public housing.” The article describes their plan for obtaining property, refurbishing housing, community engagement, and policy change.  Baiocchi and Carlson argue “Crises are moments of upheaval, but they are also opportunities to look at the ways we’ve done things and ask whether we could do them differently in the future. It is time to make transformative change in a housing system that even before the pandemic was failing too many. Congress and the White House have a chance to create policies that not only help us bounce back from this crisis, but also help prevent the next one.” Gianpaolo Baiocchi is a professor and director of the Urban Democracy Lab at New York University and H. Jacob Carlson is a postdoctoral research associate at Brown University’s Population Studies and Training Center, and Spatial Structures in the Social Sciences (S4). Click here  for a complete calendar Tweets by UWSoc News and Announcements Mike Light’s Research on Criminal Justice Reform Featured in “The Washington Post” Kelly Marie Ward Receives Award for Early Achievement in Social Science Research Doug Maynard Awarded 2021 Garfinkel-Sacks Award for Distinguished Scholarship An Op-Ed Piece in the “New York Times” by Sociology Alumni Gianpaolo Baiocchi (Ph.D. 2001) and H. Jacob Carlson (Ph.D. 2020) Michal Engelman Interviewed about Decrease in Life Expectancy in U.S. More News posts Gina Longo, Daanika Gordon, Casey Stockstill, and Katrina Quisumbing King celebrate completing their doctoral degrees in 2018. Site footer content Quick Links Home People Undergraduate Program Graduate Program Alumni Contact Us 8128 William H. Sewell Social Science Building 1180 Observatory Drive Madison, WI 53706-1393 Map Email: soc_communications@ssc.wisc.edu Phone: (608) 262-2921 Feedback, questions or accessibility issues: soc_communications@ssc.wisc.edu. This site was built using the UW Theme | Privacy Notice | © 2021 Board of Regents of the University of Wisconsin System. 
work_z74elo7cp5au3o75tpglxymvte	----	Organized Crime and Preventive Justice warwick.ac.uk/lib-publications Original citation: Sorell, Tom (2018) Organized crime and preventive justice. Ethical Theory and Moral Practice, 21 (1). pp. 137-153.doi:10.1007/s10677-017-9861-7 Permanent WRAP URL: http://wrap.warwick.ac.uk/96949 Copyright and reuse: The Warwick Research Archive Portal (WRAP) makes this work of researchers of the University of Warwick available open access under the following conditions. This article is made available under the Creative Commons Attribution 4.0 International license (CC BY 4.0) and may be reused according to the conditions of the license. For more details see: http://creativecommons.org/licenses/by/4.0/ A note on versions: The version presented in WRAP is the published version, or, version of record, and may be cited as it appears here. For more information, please contact the WRAP Team at: wrap@warwick.ac.uk http://go.warwick.ac.uk/lib-publications http://go.warwick.ac.uk/lib-publications http://dx.doi.org/10.1007/s10677-017-9861-7 http://wrap.warwick.ac.uk/96949 http://creativecommons.org/licenses/by/4.0/ mailto:wrap@warwick.ac.uk Organized Crime and Preventive Justice Tom Sorell1 Accepted: 22 December 2017 /Published online: 26 January 2018 Abstract By comparison with the prevention of terrorism, the prevention of acts of organized crime might be thought easier to conceptualize precisely and less controversial to legislate against and police. This impression is correct up to a point, because it is possible to arrive at some general characteristics of organized crime, and because legislation against it is not obviously bedeviled by the risk of violating civil or political rights, as in the case of terrorism. But there is a significant residue of legal, moral and political difficulty: legislation against organized crime is hard to make effective; the harm of organized crime is not uniform, and so some preventive legislation seems too sweeping and potentially unjust. More fundamentally, the scale and rewards of organized crime are often dependent on mass public participation in markets for proscribed goods, which may point to a hidden public consensus in favour of some of what is criminalized. For all of these reasons, I argue that existing preventive policing and legislation against organized crime may be harder to justify than their counterparts in counter- terrorism, at least in the UK. Keywords Serious crime . Preventive justice . Organized crime . Illicit markets In liberal jurisdictions criminal justice is primarily backward-looking. For example, a murder has been committed; the culprit is sought and (if all goes well) identified, arrested, fairly tried and convicted, and then proportionately punished. Preventive justice is the criminalization of steps that move an agent forward toward the commission of a serious crime. The steps may not be particularly harmful in themselves: buying hydrogen peroxide or fertilizer, for example. But individually harmless actions may enact a lethal plan, e.g. to build a bomb capable of killing hundreds. Preventive legislation allows for arrests to be made and charges preferred when there is evidence of (a) a plan to kill hundreds, (b) agreement among the planners on bombing as the means, and (c) procurement by the planners of materials for bomb-making. The case for criminalization in this sort of case is relatively strong, but critics of preventive justice point to Ethic Theory Moral Prac (2018) 21:137–153 https://doi.org/10.1007/s10677-017-9861-7 * Tom Sorell t.e.sorell@warwick.ac.uk 1 University of Warwick, Coventry, UK # The Author(s) 2017. This article is an open access publication http://crossmark.crossref.org/dialog/?doi=10.1007/s10677-017-9861-7&domain=pdf mailto:t.e.sorell@warwick.ac.uk other much more problematic offences, such as the glorification of terrorism, or acts of radicalization, or 3rd party offences of non-disclosure of information about a plot. By comparison with the prevention of terrorism, the prevention of acts of organized crime might be thought easier to conceptualize precisely and less controversial to legislate against and police. This impression is correct up to a point, because it is possible to arrive at some general characteristics of organized crime, and because legislation against it is not currently subject to heated public controversy based on probable violations of civil or political rights, as in the case of terrorism. But there is a significant residue of legal, moral and political difficulty: legislation against organized crime is hard to make effec- tive; the harm of organized crime is not uniform, and so some preventive legislation seems too sweeping and potentially unjust. More fundamentally, the scale and rewards of organized crime are often dependent on mass public participation in markets for pro- scribed goods, which may point to a hidden public consensus in favour of some of what is criminalized. Preventive policing and legislation in both areas, then, are less easily justified than first appears. The rest of this paper is divided into five sections. I first identify some of the distinctive characteristics of organized crime, which include the maintenance of illicit mass markets, secrecy, ready resort to violence, and willingness to corrupt legitimate officials and politicians. In Section 2 I connect the status of organized crime as serious crime with its tendency not only to do harm to particular individuals, but also to undermine welfare-producing and politically legitimate institutions. In Section 3 I turn to preventive measures, focusing on the Serious Crime Preventive Order (SCPO) in recent legislation in force in England and Wales. I give reasons for doubting the justice of SCPOs, and compare them unfavourably with preventive measures geared to reducing the financial proceeds of crime. I then point out that these latter measures, too, while justifiable, have not proven to be particularly effective. Section 4 goes to the source of a deeper problem with preventive justice in the area of organized crime: namely that there is mass public participation in some of the illicit markets that it depends upon. Does mass public participation in these markets indicate a legitimating consensus in favour of their legalization? Perhaps. But this does not rule out possible mass collusion in the victimization and corruption associated with illicit markets. In order to provide support for decriminalization, market participation needs to take the form of open civil disobedience. Sections 5 and 6 draw conclusions about the distinctive problems of justifying preventive justice in the area of organized crime. 1 What is organized crime? The task of defining organized crime has not proved straightforward. In the US Presidential Commission on Organized Crime in 1986, the difficulties were supposed to be contributed by the term ‘organized’ rather than the term ‘crime’ (Washington Commission 1986: 25). But the fact that some organized crime is often claimed to be victimless,1 or to involve illicit markets that should arguably not be illicit, makes even the ‘crime’ in ‘organized crime’ problematic. At the same time, the difficulties of capturing in law the kinds of organization that are 1 See Campbell (2013: 64) ‘Much organised crime does not involve a victim as such, and, as a result, the gathering of evidence may prove problematic...’ 138 T. Sorell characteristic of organized crime have not gone away. I begin by trying to identify some general, even if not defining, characteristics. Organized crime typically consists of co-ordinated illegal activity for financial gain by a group of agents over a significant period of time. The group of agents exhibits a division of labour related to the component specialties involved in e.g. armed robberies or drug importa- tion and dealing. Organized crime excludes more or less spontaneous, short-term looting during a riot involving people who do not know each other, and it may even exclude a one- off-coordinated criminal act (a bank robbery, say) carried out jointly by people who know each other but who will never act together again. The central cases of organized crime addressed in legislation and policy in Western jurisdictions involve more or less enduring crime gangs or families from which criminal plans and acts emanate frequently. Each gang member knows at least some of the other members well, and there are methods of recruitment tied to blood relations or a territory, such as a neighbourhood, or a foreign country of origin.2 Of course, the territorial associations of crime gangs do not prevent international operations, notably through the internet, or transnational co-operation (Albanese and Reichel 2014). Criminal gangs set out to make money by trading in illicit markets, or by robbery, fraud, extortion, kidnapping and murder. These latter, overtly victimizing, forms of organized crime are sometimes directed at ordinary citizens, and sometimes at rival criminals. Typically, the membership and activities of gangs are kept a secret from everyone else, particularly the authorities, and a great deal of ingenuity is directed by gangs at invisibly storing, transporting, and reinvesting the financial proceeds of their primary activities. Violence –sometimes includ- ing murder and torture– is used within gangs to maintain discipline, and against outsiders to make money –through Bprotection^ schemes–or to discourage competition. As for their dealings with the authorities, criminal gangs often try to bribe or blackmail police or judges or politicians for information or influence (Gounev and Ruggiero 2012) and they hire the services of non-criminals (e.g. legitimate lawyers, various kinds of craftsmen, doctors, scien- tists, accountants) as and when their enterprises or plans require. Awide variety of crime is engaged in by criminal gangs. The 2010 UK Government Threat Assessment of Organised Crime (SOCA 2010) emphasizes drug importation and trading, immigration crime in various forms, and a wide range of fraud. The shared purpose of all of these forms of organized crime is money-making. Organized crime gangs seek to make themselves rich, or perhaps to make themselves rich and consolidate their power and influ- ence.3 What is more, getting rich and gaining power are not typically means to some further organizing end. They are themselves organizing ends. Furthermore, since in many developed jurisdictions convictions for organized crime are now associated with the confiscation of criminal assets, gangs and families must not only find ways of making money but of keeping it in the event that they are caught. The fact that acquiring and keeping money and power are themselves organizing goals helps to distinguish organized crime from co-ordinated criminal activities conducted to finance terrorism. It is known, for example, that members of the Irish Republican Army carried out at 2 The United Nations Convention Against Transnational Organized Crime (2001) Article 2 (a) defines an organized criminal group as a group of three or more persons that was not randomly formed; existing for a period of time; acting in concert with the aim of committing at least one crime punishable by at least 4 years’ incarceration; in order to obtain, directly or indirectly, a financial or other material benefit. This definition is unduly permissive, since it allows an ad hoc group formed to carry out a one-off criminal act as a kind of organized crime. 3 Power is emphasised by the 1986 Presidential Commission Report (Washington Commission 1986: 29). Organized Crime and Preventive Justice 139 least one huge bank robbery in December 2004 to support its paramilitary activities, and specifically to finance purchases of weapons. More than £20 million in banknotes was taken in an operation facilitated by the violent kidnapping of the family of a bank official (Guardian 2008). If the same amounts could readily have been raised from donations, then the rationale for bank robberies or other conventional crime by the IRA might have seemed slight or non- existent even from its own point of view.4 Again, if some hypothetical operation carried out by the IRA had seemed potentially lucrative but involved targeting Northern Irish Catholics, i.e. people from its core political and religious constituency, that, too would presumably have been highly unattractive. For typical criminal gangs, on the other hand, there is no obvious upper limit on the violence used or the targets of it, if there is £20 million to be made. The financial rewards are always a strong consideration in their favour, even a conclusive consideration, if the proceeds and the chances of escaping conviction are big enough. Criminal gangs aim to maximize profits, and they do so primarily through fraud in legitimate markets or selling goods in illicit markets. To give one example of fraud that is familiar in the USA (Finckenauer 2005: 63-83 and esp. 77), the UK (Telegraph 2013) and elsewhere (Barkhuizen 2014), insurance companies have received large numbers of claims on staged automobile accidents, http://www.telegraph.co.uk/news/uknews/crime/9937896/Police- uncover-countrys-largestcash-for-crash-insurance-scam.html. Other examples of fraud involve the sale over the telephone of worthless land or stock market securities to naïve or vulnerable investors. Then there is cyber crime. Almost everyone who uses email has been on the receiving end of the Nigerian 419 scam. That is, they have received unsolicited emails proposing that, in return for a share, they receive into their bank account a transfer of millions from a foreign jurisdiction. The involvement of criminal gangs in fraud in legitimate markets is to be distinguished from their activities in illicit markets. For our purposes, two kinds of illicit market can be distin- guished, corresponding to what makes them illicit. Some markets are illicit in the sense that the legislation of a legitimate government prohibits them. Not every such prohibition of a market is uncontroversial, because the harm done by the goods traded is sometimes unclear, or clear but apparently freely self-inflicted. The harm, if any, done by soft drugs is sometimes thought to be of this type. The harm done by various kinds of alcoholic drink in the US during the Prohibition era might provide a further example. Although marijuana and whisky are open to abuse by buyers, legislation that prohibits trade in them can be thought to be unduly paternalistic, which counts against their criminalization in liberal jurisdictions where they are outlawed. The other kind of illicit market is where goods are legally or illegally sold but there are strong moral reasons why they should never be. A market in forced labour is a relatively uncontro- versial example. Another is a market in entertainment by fights to the death. An intermediate case is where an illicit market in goods and services that are harmless to consumers starts to be infiltrated by criminals with no scruples at all about what they sell. Markets in counterfeit goods are an illustration, because they permit and even invite the sale of dangerous or even lethal products. Cooking oil turns out to be contaminated; counterfeit vodka is discovered to be poison (Guardian 2014); fake branded industrial goods blow up or catch fire; drugs with impurities or in uncontrolled doses start to take lives (Lewis 2009). Since illicit markets have a built-in predisposition to flout even basic trading standards if there is enough money to be made as a 4 This is not to say that terrorists and organized crime gangs cannot make common cause. Kirstin M. Finklea takes this possibility seriously (Finklea 2010: 27-28). 140 T. Sorell http://www.telegraph.co.uk/news/uknews/crime/9937896/Police-uncover-countrys-largestcash-for-crash-insurance-scam.html http://www.telegraph.co.uk/news/uknews/crime/9937896/Police-uncover-countrys-largestcash-for-crash-insurance-scam.html result, there is always a danger that merely prohibited markets will tip over into markets that are morally impermissible because of the harmfulness of the goods or services sold. Neither kind of ground for a market being illicit –legislative prohibition on the one hand or, on the other, the exploitation or harm it involves –necessarily registers with criminal gangs as a reason for not participating in that market. Admittedly, there may be financial reasons for established criminal groups to abide by and perhaps even enforce basic trading standards if a total disregard for these standards would undermine an illicit market. Drugs have to produce a high to attract customers, but they must be safe enough not to make customers regularly ill. In the same way, trafficked women may need to have access to adequate food and health care if they are to attract customers in prostitution. Adequate nourishment and health care are in that sense necessary background standards for the trade in sexual services. But, to labour the point, it is only the possible loss of custom and profit –not the badness of harm or exploitation– that is likely to weigh with criminal gangs in the enforcement of minimal standards. As far as criminal gangs are concerned, there are no morally excluded markets or market practices, except perhaps trading in inside information about the activities or plans of criminal groups. Again, criminal gangs do not operate in illicit markets only. They try to invest the proceeds of their illegal activities into legitimate markets and legitimate businesses. When this happens they employ lawyers to make sure they miss no tax or trading advantages permitted to legitimate businesses. At the same time, they are not above using illegal means, including violence, to gain income from legitimate businesses they do not own or invest in. In local areas they control, criminal gangs or families are often very willing simply to extort money from legitimate businesses. In return for not using violence against the business owners or not destroying their premises, criminal gangs regularly collect a portion of their receipts. Again, typical criminal gangs are very willing to make corrupt payments for exemptions from otherwise successfully enforced regulation or taxation. Through force and pay-offs they are able to increase rewards and reduce costs in legitimate-seeming businesses in which they are involved, that is, businesses that are conducted openly and with apparent regard for legality.5 2 Why is organized crime serious crime? Organized crime is often treated in legislation as serious crime. The grounds for treating it this way double as grounds for addressing serious crime with preventive justice measures. For it is natural to think that the more serious the crime, the more its prevention is justified. And if the prevention of a certain variety of serious crime is justified, then so might the criminalization of steps characterisitically leading to its commission. Or at least, criminalization is in order —is in order if—and this is a complex ‘if’—the steps are of a type that really do lead typically to a serious crime, if the penalties associated with taking those steps reliably deter or disrupt criminals, and if they are proportionately lower than the penalties for the fully realized serious crime. These ifs define the work of this section and the next: we shall first give reasons why organized crime should be regarded as serious crime, and then turn to the adequacy of selected preventive justice measures. In earlier work (Sorell 2016), I have complained of the inadequacy of accounts of serious crime that take into account only directly victimizing offences (Von Hirsch and Jareborg 5 Legitimate businesses, admittedly, also resort to pay-offs at times. They are less likely to make direct threats of violence to get their way, however. Organized Crime and Preventive Justice 141 1991). These are offences in which one person suffers at the hands of another, and where seriousness is a matter of the difference the offence makes to the victim’s standard of life. Murder, which deprives someone of their life, is more serious than burglary, which might deprive someone only of property that they are well able to do without or replace without hardship. Although accounts along these lines make sense of the relative seriousness of a certain range of offences –assault, homicide and burglary, for example –they do not capture what is wrong with bribery, systemic fraud, misbehaviour in public office and other associated, commonly criminalized activity. In earlier work I made it sufficient for reaching the threshold for serious crime that the organized commission of a type of crime would undermine a welfare-enhancing or harm-reducing institution, and the commission of that crime was organized and on an undermining scale. This is the sort of account needed to explain the seriousness or large-scale organized benefit or passport fraud, as well as standard forms of bribery and corruption. It is also the sort of account needed to make sense of the seriousness of common forms of organized crime. The hybrid account I favour, which makes both undermining welfare-producing institutions and victimizing crime serious crime, is well adapted for explaining why common forms of organized crime are serious. Part of the justification for the fight against organized crime, and long sentences for common specimens of organized crime, must consist of (a) the reasons why victimizing crime is wrong, since the violence and extortion characteristic or organized crime are clearly victimizing. But that cannot be all. The justification must also include (b) reasons why illicit markets are illicit even when market participants are not straightforwardly victims; and (c) reasons why the corruption of officials is wrong. Let us start with (c). Criminal gangs operate secretly over years outside the control of a people and its govern- ment (Lynch and Phillips 1971: 59); operate for financial gain through violence, fraud and participation in illicit markets; seek exclusive or monopolistic control of an illicit market;6 and always stand ready to corrupt officials (Report to the Presidential Commission 1986: 25) That is, they operate out of sight and in defiance of a jurisdiction and sometimes in competition with the authorities in a jurisdiction. This is not because they recognize no authority; on the contrary, they may be quite hierarchical themselves, or acknowledge a pecking order among fellow underworld organizations. The point is that they are a locus of power and loyalty apart from overworld institutions, with secret plans and organization, and with a sense of money-making opportunities unconstrained by either conventional morality or law. They set themselves up as regulatory powers within illicit markets, discouraging new market entrants, intimidating unruly market participants, and acting violently against any would-be rival authorities. They do not merely defy or ignore what the law prohibits, but recruit officials to see that the costs of defiance and disregard for the law in their case are minimized or eliminated. Organized crime, then, has both victimizing and institution-undermining aspects. Victim- izing crime is wrong because of the harm—disablement, loss of life, infliction of pain, fear or other kinds of distress of the person who is attacked or robbed or defrauded. Instead of harm, one can speak in terms of a loss or diminution of standard of life. By contrast, corruption is wrong because, among other things, it works directly against equal treatment before the law, and equal treatment is a requirement of justice. More generally, corruption undermines legal institutions, which have a certain priority in a system of welfare-raising and harm-reducing 6 BFrom all accounts, organized crime does not merely extend itself broadly, but brooks no competition. It seeks not merely influence, but exclusive influence. In the overworld its counterpart would be not just organized business, but monopoly. And we can apply to it some of the adjectives that are often associated with monopoly- ruthless, unscrupulous, greedy, exploitative, unprincipled.^ (Schiller 1971: 73). 142 T. Sorell institutions in developed states. For the police or judges or regulatory bodies to be bought is for access to justice and other forms of welfare to be restricted, or for its distribution to be arbitrary or discriminatory if corrupting agents apply the appropriate influence. What about (b)? Illicit markets are illicit typically because (i) the products they offer are often harmful; and (ii) sellers in the market know that they are harmful, and consumers don’t know, or are under some sort of compulsion to buy even if they do know about the harmful effects. In such cases illicit markets are illicit because they are victimizing. But this is not all. Illicit markets often operate with the collusion of officials, who are paid to turn a blind eye to the victimization. In these cases, the prosecution of illicit market activity is partly justified by what is wrong with victimization and party justified by what is wrong with corruption. 3 Preventive legislation in the UK I have been trying to enlarge on the basis for criminalizing behaviour leading to organized crime: the basis includes the badness of direct, victimizing harm and the badness of undermining socially beneficial institutions by corruption. I now turn to legislation and policy, including preventive legislation and policy, devised to combat organized crime. To make the discussion manageable, I concentrate on the UK. With the exception of legislation against the intimidation of jurors and witnesses,7 and the corruption of police, prison and probation officers,8 which acknowledges the steps sometimes taken by organized crime to pre-empt or undermine prosecutions, UK legislation does not dwell on the efforts by organized crime to undermine the justice system or to influence politicians. Instead, it seems to focus on three things: (i) the identification and prosecution of money laundering (Money Laundering Regulations 2007); (ii) confiscating the financial proceeds of crime (Proceeds of Crime Act 2002); and (iii) preventing the resumption by convicted gang members of roles in criminal gangs after they are released (Serious Crime Act 2007). Although (i) and (ii) are sometimes criticized for irresponsibly and stingily outsourcing judicial or police oversight and investigatory functions to banks (Campbell 2013: 71) I shall concentrate on (iii). This form of UK legislative response to organized crime differs from (i) and (ii) in significantly limiting the liberty of ex offenders. It is associated with the Serious Crime Prevention Order (SCPO) introduced by the Serious Crime Act (2007). Schedule I of this Act recognizes all of the following as serious crimes: drug trafficking; people trafficking; arms trafficking; prostitution and child sex; armed robbery; money laundering; fraud; tax evasion; corruption and bribery; counterfeiting; blackmail; intellectual property offences; environmental offences, including large-scale fishing by prohibited methods, and water pollution. Many of these are directly victimizing. Counterfeiting, intellectual property offences and some environmental crimes (though perhaps not all in Schedule 1) are different. They undermine welfare-producing institutions, or agreements. 7 See (Criminal Justice and Public Order Act 1994), esp. s. 51. 8 The UK Anti-Corruption Plan (HM Government 2014) provides for a new offence of police corruption (p. 11), and discusses new powers to target corruption in prisons and post-conviction processes. There is also acknowl- edgment of corruption in government procurement processes. The UK Independent Police Complaints Com- mission, in its second report on police corruption, which covers the period 2008-2011, (IPCC 2012) reports relatively few upheld complaints about corruption in the form of perverting the course of justice, but reports surveys suggesting that corruption, is perceived by the public to be widespread. Organized Crime and Preventive Justice 143 The SCPO is one of a very wide range of preventive orders now available to the UK authorities to counteract everything from anti-social behaviour to terrorist activity, broadly construed. Preventive orders in general have been criticized in the academic legal literature for unduly limiting the liberty of people (Ashworth et al. 2013), and the question now briefly to be considered is whether this general form of criticism applies to the SCPO (Sorell 2016). The SCPO enables courts to restrict the activities of those who have been convicted of Schedule 1 offences after they have served their sentences, so as to make it difficult for them to resume their place in a gang or in a network of criminal specialists that career criminals can call upon from time to time. Sections 5 and 6 (3) illustrates ways that SCPOs limit the freedom of ex-offenders: Examples of prohibitions, restrictions or requirements that may be imposed on individuals (including partners in a partnership) by serious crime prevention orders include prohibitions or restrictions on, or requirements in relation to— (a) an individual’s financial, property or business dealings or holdings; (b) an individual’s working arrangements; (c) the means by which an individual communicates or associates with others, or the persons with whom he communicates or associates; (d) the premises to which an individual has access; (e) the use of any premises or item by an individual; (f) an individual’s travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise). These are very broad areas of potential interference, and they seem to impose a penal burden on an offender even after a conviction is spent. Serious crime prevention orders can last for 5 years. This is a long time. Instead of returning to society with a clean slate, those who are released from prison after having been convicted of a serious crime are liable to suffer a considerable loss of autonomy over a significant period, with conditions of life significantly determined by judicial decision. Since the threshold for serious crime can be met by someone guilty of no more than online piracy of videos or music, the risk of injustice seems substantial. To show the SCPO in a more favourable light, it may be necessary to distinguish between one-off and repeat offenders, and, within the category of repeat-offenders, between those who have operated solo, and those who belong to or who regularly co- operate with crime gangs. For obvious reasons, one-off offenders are less credible targets for SCPOs than repeat offenders. As for repeat offenders, the loss of autonomy associated with an SCPO may make sense where there is good evidence that an ex-convict has been involved in organized crime and is likely voluntarily to return to it. Often convicts who have worked with a criminal gang once may face expectations backed by coercion of future co-operation. Convicts leaving prison might face hard-to-refuse demands of collab- oration from criminal gangs and might actually be helped not to collaborate by serious crime prevention orders. Let us agree with the critics of preventive orders that the SCPO is a questionable measure when directed at ex-offenders who are not members of criminal gangs: are we being too quick to concede that it is appropriate for people who have taken part in organized crime? After all, Schedule 1 recognizes a very wide range of organized crime. Do all forms deserve the same treatment? Surely fishing by prohibited methods and intellectual property offences, when 144 T. Sorell carried out by criminal gangs, are not as serious –in the sense of being directly victimizing and inflicting serious harm–as people-trafficking and organized sexual assault of children? Surely the less serious Schedule 1 offences may produce less harm and so justify less well the far- reaching restrictions on liberty which SCPOs may involve? Here some of the empirical research commissioned by the Home Office in the UK may be relevant. A Home Office Research Report (Francis et al. 2013) on career criminals and organized crime notes that offenders involved in organized crime, while predominantly involved in drug dealing and importation, are not specialists, and that the time they spend in prison deepens and broadens their criminal connections and their knowledge of methods of committing other offences. Nearly a third of all those involved in organized crime covered by the study belonged to the category Bversatile and very prolific^ –far more than in the other categories included: Bmainly violence^, Bmixed prolific^, Bmainly acquisitive^ and Bmainly drugs^. Indeed, the Bversatile and very prolific^ category of organized criminal was twice as large as the next largest Bmainly violence^ category. Belonging to the Bversatile and very prolific^ category made it almost certain that in the 5 years leading to arrest for an organized crime offence –an offence with a given term of imprisonment for which someone was co-convicted—the offender had commit- ted some other offence or other, including a .7 probability of having committed violence against a person or a theft and handling stolen goods offence, and a .95 probability of having breached a court order or bail (Francis et al. 2013: 50).9 The research also revealed a pattern of increasing seriousness for crimes committed over a career starting in the early teens, with the most serious crimes being committed at around the age of 40.10 This research on the career trajectory of people involved in organized crime may help to justify measures that disrupt patterns of association between early career criminals and senior career criminals both during and after imprisonment. This can include disruptions of patterns of association by means of SCPOs. There is also empirical evidence for distinguishing between offences likely to be committed by organized crime, and offences that can be. Offences likely to be committed by organized crime include forgery and counterfeiting, firearms and drugs offences (Ackerley et al. 2002: Appendix A). All of these are Schedule 1 offences. So if there is evidence that an early career organized criminal is going to associate after imprisonment with known counterfeiters and arms traffickers, that might also be a reason, though admittedly not a decisive reason, for issuing an SCPO banning those associations so as to prevent a career in organized crime. Although the appropriateness of SCPOs for veterans of very harmful organized crime is at least arguable, we do not have before us a conclusive case in its favour. On the contrary, we have some reasons for thinking that the target group for the imposition of SCPOs is too undifferentiated in the Serious Crime Act (2007). This raises the question of whether other preventive measures against organized crime, measures that at first seem to limit liberty less than SCPOs, might be preferable. For example, might anti-money laundering measures, and powers of confiscating the proceeds of crime be morally superior to the imposition of SCPOs? 9 Related Home Office research appears to indicate that convictions for some violent offences is weakly predictive of murder and serious sexual assault. See (Ackerley et al. 2002). 10 Since seniority in a criminal gang comes with the authority to delegate crime to others and so escape arrest and imprisonment oneself, involvement by senior gang members in serious crime is largely missed by the report we are considering. But the existence of crime leaders with authority to delegate crime does help to explain why, at 40, convictions of career criminals decline: some of those criminals have become important enough to direct rather than participate in operations, and to get more junior people involved in the sort of crime that made them eligible for leadership. Organized Crime and Preventive Justice 145 Here, too, the answer may be less clear-cut than at first appears. According to an estimate in a 2005 report (Corporation of London 2005), annual proceeds of crime in the UK amount to between £19 and £48bn and only £80 m is confiscated. In the US the corresponding best guess is $110bn, of which £340 m is confiscated (Corporation of London 2005: 16). If these figures are even roughly correct, the effectiveness of measures that are supposed to counteract crime by making it harder for criminals to enjoy the proceeds is low. Since reducing bad effects is part of the moral case for anti-money-laundering measures, the ineffectiveness of those measures matters morally and counts against those measures. The same conclusion seems to be supported by the relatively low number of prosecutions brought by the UK authorities relative to the volume of suspicious activity reports from financial institutions, the relatively small number of banks fined for money-laundering, and the relatively small fines levied up to 2008 when any were levied at all (Harvey 2008).11 Again, and perhaps surprisingly, the criminalization of money laundering has come in for criticism on moral grounds. In the US, money laundering can attract a 10-year prison sentence: Douglas Husak objects to this sort of penalty (Husak 2008: 41). According to him, depositing the proceeds of crime X does not add to the wrong of X itself, and only acts that reach the threshold for moral wrongness should be dealt with by hard treatment like imprisonment. Husak would not reject non-penal treatment for money-launderers, say taxing them or making it administratively difficult for them to deposit the proceeds of crime.12 His point is that imprisonment is out of order because punishment is out of order for something –an act of depositing money– that is neither wrong in itself, nor necessarily bad in its effects. His target is US statutes that would punish a criminal for e.g. investing the proceeds of crime into a college fund for his nephew. More generally, his target is the punishment by imprisonment of a very large range of offences that are merely legally prohibited rather than wrong in themselves. He thinks that unbridled criminalization is behind the disproportionately large size of US prison populations, and also the huge and, in his opinion, misdirected investment in the enforcement of US drug legislation (Husak and de Marneffe 2005). I disagree with Husak’s claim that money-laundering should not be criminalized. Organized crime is a money-making enterprise. To turn its proceeds into money that can safely be kept, criminals need methods of investing it undetected in legitimate businesses. Money-laundering also facilitates the personal enjoyment of the proceeds of organized crime by criminals, and also helps to finance political influence and legislation favourable to industries, such as casinos, hotels and entertainment in which the proceeds of crime have sometimes been invested. Knowingly making it easier through money-laundering for a criminal gang with a long track record of brutality to extend that record, or to diversify their activities to include further offences that are mala in se, does seem, in its turn, wrong in itself, and therefore punishable in principle. Money laundering typically finances not only more serious harm –an increase in the number of crimes of a given degree of harmfulness– but an apparatus designed to make harm-production efficient in the future. An apparatus that, so to speak, industrializes crime –that makes the organization of crime more systematic and more efficient– is worse than arrangements that simply facilitate more crime. The former involves specialization and co- ordination of many people’s efforts. This is different from, and morally worse than, using the proceeds of one’s own crimes to move from a part-time to a full time solo career in burglary. 11 Fines have increased and have been imposed more frequently in the last 10 years. 12 It is unclear whether Husak would regard a court-ordered confiscation of the proceeds of crime a kind of penal treatment. 146 T. Sorell Admittedly, if a criminal gang had a plan, as in one of the Godfather film trilogy, of getting out of organized crime altogether by means of money-laundering in the short-term, the moral case for punishing its money-laundering would have to proceed along different lines from the argument for criminalizing measures that industrialize crime. As things typically are, however, the laundered proceeds of crime stand ready to be used by people whose activities straddle the worlds of crime and legitimate business, and who want that straddling to continue. Despite the moral and political exceptionalism of their participation in illicit markets, criminal gangs assert their rights aggressively when they have stakes in legitimate businesses and legitimate markets. Laundered assets – assets that are easier to keep because they look legitimate and are protected by law –are more attractive for criminal and legitimate business activities alike than easy-to-pilfer and incriminating piles of cash in a back room. However, and again as things typically are, there is nothing to make criminals prefer legitimate to criminal activities if the returns of the latter are much greater and the costs or risks are comparable. There is nothing, therefore, to stop laundered assets from financing far more crime than legitimate business when the assets can in principle be ploughed into either. Since criminals typically make deposits, or have deposits made, with a view to financing more crime and an improved crime apparatus, the criminalization of money laundering seems to be perfectly in order.13 It may be true that otherwise innocent third parties hired to handle money for laundering are unjustly prosecuted for money-laundering and are only the unwitting associates of criminals. It may be true that it is hard for these third parties to know for certain whether money that they are handling is criminal or not. It may further be true that trying to find out the source of deposits and trying to identify suspicious transactions unfairly imposes financial costs on financial institutions and unfairly transfers legal liabilities to them. It may, finally, be true that when pressed into quasi-forensic roles, employees of financial institutions have discretion to inconvenience and even victimize non-criminal clients that law enforcement officials would not have. In all of these ways, the outsourcing of anti-laundering measures by governments may involve injustice to third parties. These considerations, however, do not count against the criminalization of money-laundering: they are reasons for not delegating responsibility for detecting money-laundering to financial institutions. Perhaps public bodies need to carry out these checks, albeit with money raised from the financial sector. 4 Public participation in illicit markets In the last section I considered some drawbacks of preventive justice measures for organized crime. These seemed either disproportionate, as in the case of SCPOs, or hard to make effective. But there are deeper reasons for thinking twice about organized crime, and these are to do with the way that mass public participation in illicit markets arguably pushes them in the direction of legitimacy. The main illicit market in the UK is in drugs,14 and the drug trade owes its profitability to widespread participation in it by the public. I concede that some participation is grounded in addiction, so that it is not all out Bwilling^ participation. What about the non-addicted? Admittedly, these market participants are not coerced. Still, members of the public who apparently willingly buy services from organized crime have to enter an economic zone that 13 For different arguments to the same conclusion, see Young (2009). Young partly relies on (Alldridge 2001). 14 Comprehensively described in (Home Office 2007). Organized Crime and Preventive Justice 147 exists in defiance of a jurisdiction that they are otherwise mostly obedient to. This means that even the Bwilling^ participation of people as consumers in illicit markets is conflicted. It requires people to compartmentalize their underworld and overworld activities by keeping e.g. their drug purchases secret from the authorities and other people. Again, the underworld activity of customers in illicit markets seems to defy legislative and other institutions that in their overworld civic roles of voter and juror those people genuinely support. So participation in an illegal market fragments the civic personas of market participants. This makes it quite different from consumer activity in legal markets. Nevertheless, the fact that people at the receiving end of illicit markets run by crime gangs do not seem to be victimized—coerced or harmed against their will—and that there is durable demand for illicit goods and services, makes some non-fraudulent organized crime resemble mainstream business activity. The resemblance sometimes prompts public discussion of the possible legalization of the markets in question. Gambling is one of the formerly illegal activities that has passed into the mainstream of many jurisdictions. The sale of sex and drugs, though legal in some places, is more of a rarity. Does the fact that there is apparently great public demand for illegal drugs throw doubt on the legitimacy and authority of laws that make the possession, purchase, importation and distribution of drugs illegal? The fact there is a strong analogy between some drugs and some legally sold kinds of alcohol certainly adds to scepticism about the blanket criminalization of drugs. And since only the prevention of serious crime justifies liberty-limiting preventive measures, is it reasonable for preventive orders to be issued to veteran drug dealers or drug runners involved only with recreational drugs? Perhaps the less victimizing the crime and the less harm is done, as in dealing soft drugs as opposed to heroin, the less criminalization in the first place is justified. In the case of small- scale consumers of illegal soft drugs who otherwise do not commit offences, criminalization of possession may be particularly hard to justify. Although the criminalization of possession may be regarded as a preventive measure in that it is meant to discourage transactions in the drug market in general, including the sector involved with the sale of hard drugs, the harm caused by mere possession of any drug, even hard drugs, is surely negligible or non-existent, and the effect on organized crime of confiscating small quantities of soft drugs or of discouraging the smallest players in the market is surely slight. Discouraging drug production, or confiscating big shipments of very harmful because addictive drugs at the point of importation, is surely much more justifiable. Although these considerations have some force, they do not show that mass participation in drug markets should simply be tolerated by the authorities, or that ordinary consumers of small quantities of non-addictive drugs do nothing wrong by buying regularly from drug dealers. Just because they are otherwise law-abiding, the small-scale consumers we are considering are guilty of exceptionalism. That is, they have pretensions to be their own judges of which laws they will abide by and which they will break. It is true that they are not exceptionalists of the same order as those who direct organized crime, since the latter group are willing to commit violent offences and fraud on a large scale if the profits are high enough and if there is a good chance that they will not be caught. Organized criminals are willing, in other words, to break a whole range of laws, and indeed to direct and even coerce others to do so. Otherwise law-abiding small-scale consumers of drugs are probably much better morally as individuals, and would probably be horrified by the willingness of organized crime to make money from causing harm. This does not mean that consumers of soft drugs deserve no moral criticism. After all, their purchases foreseeably add to the profit that keeps organized crime in any market, including 148 T. Sorell markets that should always be illicit. Again, the market for soft drugs need not be, and is often intended by criminals not to be, cut off from the market for more profitable and addictive drugs. Although some of the illicit drugs sold in the general drug market are probably harmless, many others are not. Being a consumer in a relatively harmless section of an illicit market can expose oneself and others to the promotion of much more harmful drugs. Finally, there are no reliable mechanisms of quality control in an illicit market to ensure that the even the supply of normally harmless drugs does not get contaminated. This fact is a reason why participation in an illicit market for even soft drugs can never be reliably informed, and why, consequently, market participants run a greater risk of harm than consumers in other markets. Or to put it another way, consumers of even the normally harmless drugs in an illicit market can very easily be victimized, and it is a kind of good luck if they are not victimized. There are also considerations about violence. Illicit markets in drugs are regulated by a lot of threatened and actual victimizing violence, some of it life-threatening, mainly inflicted by members of criminal gangs on one another and on customers and dealers who default on payments (Home Office 2007). This means that even if illegal drug purchases are typically uncoerced and do not lead to debilitating addiction, they take place within a market that relies heavily and conspicuously on victimizing violence. Knowledge of that violence is not esoteric: punishments for theft or default are often well advertised to all market participants. Acting as a dealer in the drug market signals a tolerance of that violence. Acting as a regular purchaser can also signal tolerance. What is more, acting as a purchaser can help to fund the purchase of de facto impunity from police investigation and prosecution through bribery. Taking part in the drug market may also contribute indirectly to the recruitment of young people to crime instead of education, and to imbalances in the allocation of policing and other resources in response.15 The idea that purchases of soft drugs are normally innocent, then, is doubtful. Things would stand differently morally if the typical purchase of soft drugs were open and intended as part of a public campaign directed at legalizing drugs. This would elevate drug purchases from acts of self-indulgent exceptionalism to acts of drug consumption seeking legitimization through the political process. But as things actually are, drug purchases by the otherwise law-abiding are carried out quietly and evasively, out of the sight of the same police department that drug purchasers would call in if their houses were burgled or their cars stolen. Perhaps the elimination of this inconsistency or hypocrisy would add to the case for drug legalization. But its existence in the interim certainly counts against citizen participation in drug markets. It does not matter whether the citizen participation is on a large scale or not: the only way to legitimize it is through legislative change, or, short of that, a public campaign of law reform including civil disobedience combined with willingness to submit to arrest for it. 5 Prevention of organized crime vs counter-terrorism It is time to return to the contrast between the fight against organized crime and counter- terrorism. Each is supported by legislation and policy that are eminently criticisable, but criticisable in very different ways. In the case of organized crime, as we have seen, the deepest 15 The argument for treating participation in a violent, illegal market as serious crime may also be an argument for policy that will remove the violence, e.g. by creating a legal and regulated drug market. Discussion of this issue is outside the scope of the present paper. Organized Crime and Preventive Justice 149 problems arise from the fact that market activity is at its heart, and that there is large-scale public participation in some of it, sometimes with little resulting harm. Among illicit markets the most problematic are those in which the commodities whose use is criminalized are hardest to distinguish from the commodities traded in legal markets. This is arguably how things stand with the illicit market in soft drugs for recreational purposes, comparable as it is to the entirely legal market in cigarettes and alcohol. It has already been strongly suggested that the right response to the criminalization of participation in questionably illicit markets is political: a consensus can legally be built in favour of law reform by market participants, and in that way some illicit markets can properly be brought out from prohibition. When it comes to counter-terrorist legislation the deepest problems are quite different. They are not to do with money-making, markets or by the role of big sections of the general public in buying illicit goods. They arise instead from the perceived need to curtail the rights of ideological minorities as a means of preventing violence or attacks by a tiny number within the ideological minority. In the UK, terrorism legislation directly restricts the freedom of associ- ation and the freedom of expression, respectively, in as much as membership in certain violence-supporting organizations is outlawed (Terrorism Act 2000), and in as much as the expression of support for acts of terrorism, even in the past, is also an offence. The reason the restriction of the rights of ideological minorities is a deep problem, as opposed to a problem simply, is that it seems to relax protections that are constitutive of liberal politics. On the other hand, when the freedom of association and freedom of expression are used to gather and make vocal support for violent political change, those freedoms are arguably being perverted themselves. We might say that both the non-violent support for terrorism and the counterter- rorism measures that it inspires denature the liberal democratic context that make them possible. There is no counterpart of this in the fight against organized crime. Perhaps unsurprisingly, then, preventive justice is radically different in the two cases, and, when questionable, questionable for different reasons. Preventive measures against organized crime in the UK are aimed at reducing its financial rewards and discouraging or disrupting career criminality. Consumer participation in criminally organized illicit markets, especially for soft drugs, is treated with a light touch. Depending on the reasons for it, the light touch might be justified. It might be justified if soft drugs used for recreational purposes are relatively harmless. It might be justified if, in addition to being harmless, soft drugs are the subject of broadly based campaigns for legalization and policing of small scale consumption becomes unaggressive to reflect this. Preventive measures in counter-terrorism have a very different character. Apart from criminalizing the Bglorification^ of terrorism in broadcasts and print (Terrorism Act 2006: s1), and proscribing Islamist organizations, successive UK governments have introduced many third party offences, including various failures to tell the authorities about the preparation of terrorism. In addition to non-disclosure offences, there has been a devolution of responsibility to non-governmental institutions to monitor local processes of radicalization. For example, universities and prisons have duties under the Prevent strand of UK counter-terrorism policy. These duties are spelt out in the Counter Terrorism and Security Act (2015: s29).16 It might be thought that these third-party obligations are the counterparts of anti-money laundering monitoring in financial institutions. But this is a mistake, because some of the new 16 See also the Prevent Duty Guidance in England and Wales (HM Government 2015: para 114) BUniversities will be expected to carry out a risk assessment for their institution which assesses where and how their students might be at risk of being drawn into terrorism. 150 T. Sorell obligations have the effect of clashing with some of the functions of the institutions on which they are imposed. Universities, for example, are among the custodians and channels for the freedom of expression and, up to a point, the freedom of association. Moreover, they are home to experiments in free expression. Students at universities have often tried out different kinds of protest tactics, including violent ones. Student newspapers and debating societies have often expanded the limits of free expression and have introduced more variety into the range of discussable political views. The university environment, in short, is a particularly protected space for the exercise of freedoms of expression and thought. Since the line between avant- garde debate and radicalization is sometimes too fine to be discerned, debate is likely increasingly to be suppressed in the name of preventing radicalization. In this way, the new duty under Prevent policy may only help to denature the institutions in the university sector that assume it. Even non-violent extremism is targeted by the Prevent Duty Guidance for England and Wales March 2015 (HM Government 2015: para 8). Non-violent extremism includes agitation against BBritish values,^ such as tolerance and democracy. In short, the reinterpretation of terrorism to include much more than violence against civilians to force a change of policy by government introduces a much wider range of possible precursor offences and preventive policing operations. No-one can reasonably object to precursor offences consisting of ordering the ingredients of a bomb or of recruiting personnel for a bomb attack. But recently introduced offences have quite a different character. They call upon institutions to root out practices that are hard to distinguish from things those institutions have tolerated for a long time. What is more, the new duties are being imposed without its being clear that they will be effective in reducing the volume of extremism, violent or non-violent. This fact, together with the strong possibility that non-violent extremism is offensive rather than harmful, suggests that criminal- ization in counter-terrorism has already gone too far.17 The case for a comparable conclusion with regard to organized crime is much weaker. 6 Conclusion Preventive justice is not only controversial in counter-terrorism: it is disputable even in the area of organized crime. One reason is that preventive measures in the form of confiscation of assets have not been very effective. But there are also principled objections, based on the connection of organized crime to questionably illicit markets. Some illicit markets trade in products that are arguably no more harmful than certain lawfully traded goods. The compa- rability of some licit and illicit markets in this respect; and the fact that certain illicit markets are widely patronized despite their being unlawful, provide reasons for legalization when combined with anti-paternalistic arguments. These considerations do not show, however, that all kinds of public participation in questionably illicit markets is legitimate. Participation becomes legitimate when linked publicly to a campaign of law reform. Leaving aside controversially outlawed markets, there is plenty to justify the prevention of organized crime. There is the severe harm it produces, the commodification of this harm, the illegitimate power 17 The Behavioural Sciences Unit of MI5 (the UK security service addressing domestic threats) distinguishes between Btalkers^ (whose extremism is registered in speech and writing only) and Bwalkers^, who are willing to kill or injure others. This is an important distinction in the justification of preparatory offences: criminalization needs to fasten on the Bwalkers^. Organized Crime and Preventive Justice 151 structures it sustains, and the threat it poses through bribery and coercion to legitimate power structures and the non-criminals they protect. There is also the evidence, at least in the UK, that serious crime occupies people as a career, and that over time criminals diversify their criminal activities. Although Serious Crime Prevention Orders may address these facts in a clumsy way, this does not mean that they are entirely unjustified. In the case of terrorism, on the other hand, preventive justice is controversial because of its multiplication of preparatory offences, its multiplication of 3rd party legal liabilities, and its prohibition of relatively harmless practices that are often innocent exercises of human rights. Acknowledgements Research for this article was supported by funding from the UK Economic and Social Research Council (ESRC) Grant No ES/K000098/1). Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and repro- duction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. References Ackerley E, Soothill K, Francis B, Fligelstone R (2002) Murder and serious sexual assault: what criminal histories can reveal about future serious offending. Home Office Research No. 144, London Albanese J, Reichel P (2014) Transnational organized crime: an overview from six continents. Sage, London Alldridge P (2001) The moral limits of the crime of money laundering. Buffalo Crim Law Review 5:279–319 Ashworth A, Zedner L, Tomlin P (eds) (2013) Prevention and the limits of criminal law. OUP, Oxford Barkhuizen S (2014) Transnational crime gangs make fraud a global epidemic. Journal of Insurance Fraud in America. http://www.insurancefraud.org/article.htm?RecID=3350#.VbEbNaRViko Campbell L (2013) Organised crime and the law. Hart Publishing, Oxford Criminal Justice and Public Order Act (1994) http://www.legislation.gov.uk/ukpga/1994/33/contents Corporation of London (2005) Z/Yen, anti-money laundering requirements: costs, benefits and perceptions. City Research Series, No 6 http://www.zyen.com/PDF/AMLR_FULL.pdf Counter Terrorism and Security Act (2015) http://www.legislation.gov.uk/ukpga/2015/6/contents/enacted. Accessed 18 Jan 2018 Finckenauer J (2005) Problems of definition: what is organized crime? Trends Organized Crime 8(3):63–83 Finklea KM (2010) Organized crime in the United States: trends and issues for Congress. Washington, Congressional Research Service, pp 27–28 Francis B, Humphreys L, Kirby S, Soothill K (2013) Understanding criminal careers in organised crime. Home Office Research Report No. 74, London Gounev P, Ruggiero V (eds) (2012) Corruption and organized crime in Europe: illegal partnerships. Routledge, Abingdon Guardian (2008) Northern bank robbery: the crime that nearly ended the peace process. https://www.theguardian. com/uk/2008/oct/09/northernbankrobbery.background Guardian (2014) Cartels and organised crime target food in hunt for riches. http://www.theguardian. com/world/2014/may/03/food-fraud-uk-labs-fight-organised-crime-counterfeit Harvey J (2008) How effective is money laundering legislation? Secur J 21:189–211 HM Government (2014) UK anti corruption plan https://www.gov.uk/government/uploads/system/uploads/attachment_ data/file/388894/UKantiCorruptionPlan.pdf HM Government (2015) Prevent duty guidance in England and Wales https://www.gov. uk/government/uploads/system/uploads/attachment_data/file/417943/Prevent_Duty_Guidance_England_ Wales.pdf Home Office (2007) The illicit drug trade in the UK http://webarchive.nationalarchives.gov.uk/20110220105210 /rds.homeoffice.gov.uk/rds/pdfs07/rdsolr2007.pdf Husak D (2008) Overcriminalization: the limits of the criminal law. Oxford University Press, Oxford Husak D, de Marneffe P (2005) The legalization of drugs. Cambridge University Press, Cambridge 152 T. Sorell http://www.insurancefraud.org/article.htm?RecID=3350#.VbEbNaRViko http://www.legislation.gov.uk/ukpga/1994/33/contents http://www.telegraph.co.uk/news/uknews/crime/9937896/Police-uncover-countrys-largestcash-for-crash-insurance-scam.html http://www.legislation.gov.uk/ukpga/2015/6/contents/enacted https://www.theguardian.com/uk/2008/oct/09/northernbankrobbery.background https://www.theguardian.com/uk/2008/oct/09/northernbankrobbery.background http://www.theguardian.com/world/2014/may/03/food-fraud-uk-labs-fight-organised-crime-counterfeit http://www.theguardian.com/world/2014/may/03/food-fraud-uk-labs-fight-organised-crime-counterfeit https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388894/UKantiCorruptionPlan.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388894/UKantiCorruptionPlan.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417943/Prevent_Duty_Guidance_England_Wales.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417943/Prevent_Duty_Guidance_England_Wales.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417943/Prevent_Duty_Guidance_England_Wales.pdf http://webarchive.nationalarchives.gov.uk/20110220105210/rds.homeoffice.gov.uk/rds/pdfs07/rdsolr2007.pdf http://webarchive.nationalarchives.gov.uk/20110220105210/rds.homeoffice.gov.uk/rds/pdfs07/rdsolr2007.pdf IPCC (2012) Corruption in the police service in England and Wales: second report – a report based on the IPCC’s experience from 2008 to 2011. https://www.ipcc.gov.uk/sites/default/files/Documents/research_ stats/Corruption_in_the_Police_Service_in_England_Wales_Report_2_May_2012.pdf Lewis K (2009) The fake and the fatal: the consequences of counterfeits. Park Place Economist 17:47–58 https://www.iwu.edu/economics/PPE17/lewis.pdf Lynch, Phillips (1971) Organized crime: violence and corruption. J ublic Law 71:59 Money Laundering Regulations (2007) http://www.legislation.gov.uk/uksi/2007/2157/contents/made Proceeds of Crime Act (2002) http://www.legislation.gov.uk/ukpga/2002/29/contents Schiller T (1971) The business of organized crime. J Public Law 71:71–83 Serious Crime Act (2007) http://www.legislation.gov.uk/ukpga/2007/27/contents SOCA (2010) The United Kingdom threat assessment of organised crime published by SOCA on behalf of the UK Law Enforcement community and other Government Departments. http://www.twolittlegirls. org/ufiles/2009-10_UKTA_NPM.pdf Sorell T (2016) The scope of serious crime and preventive justice. Criminal Justice Ethics 35(3):163–182 Telegraph (2013) Police uncover country's largest 'cash for crash' insurance scam Terrorism Act (2000) http://www.legislation.gov.uk/ukpga/2000/11/contents Terrorism Act (2006) http://www.legislation.gov.uk/ukpga/2006/11/part/1 The United Nations (2001) Convention against transnational organized crime Von Hirsch A, Jareborg N (1991) Gauging criminal harm: a living standard analysis. Oxf J Leg Stud 11:1–38 Washington Commission (1986) The impact: organized crime today: report to the president and the attorney general/president’s commission on organized crime Young R (2009) Douglas Husak on dispensing with the malum prohibitum offense of money laundering. Crim Justice Ethics 28:108–118 Organized Crime and Preventive Justice 153 https://www.ipcc.gov.uk/sites/default/files/Documents/research_stats/Corruption_in_the_Police_Service_in_England_Wales_Report_2_May_2012.pdf https://www.ipcc.gov.uk/sites/default/files/Documents/research_stats/Corruption_in_the_Police_Service_in_England_Wales_Report_2_May_2012.pdf https://www.iwu.edu/economics/PPE17/lewis.pdf http://www.legislation.gov.uk/uksi/2007/2157/contents/made http://www.legislation.gov.uk/ukpga/2002/29/contents http://www.legislation.gov.uk/ukpga/2007/27/contents http://www.twolittlegirls.org/ufiles/2009-10_UKTA_NPM.pdf http://www.twolittlegirls.org/ufiles/2009-10_UKTA_NPM.pdf http://www.legislation.gov.uk/ukpga/2000/11/contents http://www.legislation.gov.uk/ukpga/2006/11/part/1 Organized Crime and Preventive Justice Abstract What is organized crime? Why is organized crime serious crime? Preventive legislation in the UK Public participation in illicit markets Prevention of organized crime vs counter-terrorism Conclusion References 
work_z7kj4dxxnndqfmidoif6lfcucu	----	2010.CRISPP 1 1 Linguistic Justice and the territorial imperativei Philippe Van Parijs * Chaire Hoover d’éthique économique et sociale, Université catholique de Louvain, Belgium and Department of Philosophy, Harvard University. In Critical Review of International Social and Political Philosophy 13(1), March 2010, 181-202. Justice, dignity, territory Throughout the world, the ever growing and irreversible dominance of English is frequently perceived and sometimes indignantly denounced as being grossly unfair. It definitely raises issues of cooperative injustice, i.e., relating to the unfair spreading of the burden of producing the lingua franca between those who have to learn it as a foreign language and those who have it as their mother tongue. It also raises issues of distributive injustice, i.e. relating to the inequality of opportunities deriving from unequally valuable native competences. But these issues need not worry us unduly, as the development that produces them is accompanied by a self-corrective process, or at least by an easy opportunity for sufficiently astute non-Anglophone communities to trigger such a process. The free-riding of Anglophones on the language learning of non- Anglophones — cooperative injustice — can be significantly offset by the free-riding of non- Anglophones on unprotected or poorly protectable information generated more than proportionally by Anglophones. And the language-based material and political advantage of native Anglophones — distributive injustice — will gradually get eroded and eventually be reversed by the cheapening of the learning of English as a result of intelligent policies such as an * Email: philippe.vanparijs@uclouvain.be 2 2 inexpensive ban on dubbing and of the very spread of the use of English in an increasing number of contexts. ii For many of those most incensed by the growing dominance of English, however, the measures that would effectively tackle linguistic injustice as cooperative and distributive injustice make it worse in a third and more fundamental sense: as unequal dignity. Plundering the web may provide a clever form of compensatory free riding and a ban on dubbing an effective way of democratizing valuable language skills, but both will undeniably contribute to further accelerating the dominance of one language over all others. The primary, most fundamental injustice, it is often felt and claimed, resides precisely in what this dominance expresses: a lack of respect towards the ‘dominated’ languages and their native speakers, the ascription of an inferior, humiliating, insulting status to the people whose identities are closely tied to them. iii Even if the burden of learning the lingua franca as a second language is shared fairly by the people who have the lingua franca as their mother tongue, even if second-language competence is widely and thoroughly spread or the residual handicap adequately compensated, there remains the painful fact that the language of one subset is being given a privileged standing far above all others. For the resentment thus expressed to make ethical sense, justice must not only be a matter of distribution of outcomes or of opportunities, whether material or not. It may be the case that being regarded as belonging to an inferior category, whether caste, class or ethnic group leads to discrimination or to a lack of self-confidence that reduces one’s welfare or life chances. But the idea is here that, irrespective of such effects, justice requires people to be granted equal dignity. iv In this light, linguistic injustice as unequal dignity can plausibly be claimed to constitute the most fundamental form of linguistic injustice, and may well turn out to be the one hardest to fix. To address it, recurrent demystification and the symbolic assertion of the equality of all languages 3 3 can do some good, but as pragmatic considerations keep restricting the scope for the latter, the former will sound more and more like a spiteful and ineffective outburst against the ever more pervasive dominance of English. v There is, however, a third, arguably far more credible way of expressing and thereby pursuing the equal dignity of the various languages concerned and the associated identities. It consists in allowing each of them to be ‘queen’ in some territory, large or small, thereby granting a privilege, within the limits of that territory, to the identity associated with the language to which that territory has been ascribed. Within those limits, it is that language, and not a lingua franca, that is given the top function, that operates as the official language of the population as a political community. This guarantees that it is not always the same who need to do the bowing. It allows each linguistic community in turn, depending on location, to be the special one. It inhibits arrogance by blocking universal supremacy. Of course, the territories grabbed by the various languages will be far from equal. Some will be bigger than others, prettier, richer, more glamorous, more populated. But whether lavish or modest, there will be a place for every recognized language to be on top, and for the associated identities to be correspondingly honoured. The symmetry entailed in such a set up is the only really significant way in which linguistic justice as equal dignity can be implemented, consistently with the full acceptance of the systematic asymmetric bilingualism inherent in the adoption of a lingua franca. Linguistic territoriality regimes For this strategy to work, it must be realistic to expect those who settle on a particular territory to have the courage and the humility to learn the territory’s official language if they do not know it already. Under present conditions — of comparatively high mobility and lingua franca spread — 4 4 , this requires the implementation of fairly strong versions of what I shall call a linguistic territoriality regime, i.e. a set of legal rules that constrain the choice of the languages used for purposes of education and communication. The total absence of a linguistic territoriality regime would correspond to a regime in which the choice of language in any context is simply demand- driven: a language will be allowed for a particular purpose if a sufficient number of people want it to be used, with all linguistic aspects of social life adjusting swiftly to people’s preferences under the sole constraint of threshold levels imposed by a cost-conscious use of resources. Whether a linguistic territoriality regime is in place is therefore a matter of degree: it depends on how firmly legal rules constrain this ‘spontaneous’ choice of language within the confines of a particular territory. In the sense in which I shall be using the expression, therefore, a linguistic territoriality regime is not simply a language regime that is determined by the authority that rules over a particular territory. Which language(s) one is allowed to learn at public expense, to speak and write while expecting to be understood by public officials, or to get public information or services in, is always specified, explicitly or not, by the legislation of the territorially circumscribed political entity in which one might wish to exercise these various rights. In this broad sense, all language regimes, like all legislation, instantiate a territoriality principle, just as they instantiate a personality principle in the general sense that the rights they create are ascribed to individual persons. As I shall use it here, the notion of a linguistic territoriality regime does not refer to how much power linguistically distinctive communities are given over linguistically relevant legislation, but to how constraining or, on the contrary, accommodating public practices are to the linguistic wishes of the people who happen to live within given borders, irrespective of whether the relevant legislative authority corresponds to these borders. The more linguistic 5 5 practices are restricted for reasons irreducible to a lack of sufficient demand, the stronger the linguistic territoriality regime involved and the smaller the room left for what is sometimes called a linguistic personality principle in the specific sense of each user being entitled to freely use the language of communication in any context. vi Whether out of a concern for freedom, for privacy or for effective implementation, existing linguistic territoriality regimes tend to confine themselves to the coercive regulation of (state- organized, or state-subsidized, or most broadly state-recognized) education and to communication in public settings. The latter typically covers the internal working language of public administration and the language in which public officials communicate with the public, the language in which the courts operate and in which the public media broadcast, the language in which official information is displayed in public spaces, sometimes also the language of commercial messages in public spaces and of formal business in large private firms, and the language in which laws are published, elections organized and proceedings conducted in local, regional or national assemblies. vii In all these cases, the coercive rules that define the linguistic territoriality regime interfere with the spontaneous interaction of probability-sensitive learning and maximin communication, which would otherwise govern the dynamics of linguistic repertoires. Probability-sensitive learning refers to the fact that the main determinant of the speed and quality of the learning of a language is the probability with which one can expect to have to practise that language, and this both for motivational reasons (the cost of the investment must exceed the expected benefit) and for opportunity reasons (our language teachers are our speech partners and TV channels). Maximin communication refers to the fact that the language picked for communication between plurilinguals systematically tends to be not the language best known by the majority, or best 6 6 known on average, but the language best known by the speech partner who knows it least well. viii A territoriality regime typically imposes public education in the local language even when probability-sensitive parents would prefer to have their children taught in another language. Or it imposes administrative or judiciary procedures in the local language even in situations in which it is not the maximin language and in which, therefore, another language would better facilitate mutual understanding. As a result, more people will learn the local language, or will learn it more thoroughly, that if probability-sensitive learning had been left unconstrained, thereby increasing the frequency with which the local language will be the maximin language. At the same time, more interactions will occur in the local language than if maximin were given free rein, thereby creating both a stronger incentive and a wider opportunity to learn the local language. Consequently, the fact that the language of private communication should be immunized from the coercive grip of the linguistic territoriality regime does not mean that it is immune to its influence: which language is picked as the medium of schooling and public communication can obviously be expected to have a profound impact on linguistic competence and hence on the spontaneous (maximin-guided) choice of language even in totally uncoerced private communication. In the standard case of a linguistic territoriality regime, one single language is imposed throughout the country concerned in the various contexts deemed in need of regulation. But in several cases, different languages are imposed in different parts of the same country. And in some cases, more than one language is imposed in part or the whole of a country (think, for example, of Catalonia and Luxemburg, respectively). Often applied unwittingly by nation states, the linguistic territoriality regime becomes salient when introduced, modified or strengthened as part of the formation of a new sovereign state (from Norway to Bangladesh and from Latvia to East Timor), 7 7 but it has also been present from the start in the highly decentralised plurilingual Swiss Confederation and has been introduced, under strong pressure from the dominated linguistic communities, in a number of other plurilingual states such as Belgium in 1932 (with a number of explosive exceptions) and Canada in 1975 (with Quebec's notorious ‘Law 101’). As democracy spreads or deepens throughout the world, especially in that majority of its states whose populations are more than marginally plurilingual, the linguistic territoriality regime will and — I shall be arguing — must play an ever more important role. If the local language is a powerful language, which most immigrants spontaneously have a strong incentive to learn, the territoriality principle will hardly be felt, as only a very light constraint may be enough for the spontaneous interaction of differential learning and maximin communication to take over and keep that language firmly in place. But when this is not the case, when the spontaneous incentive to learn is weak, the enforcement of the territoriality principle will require perceptibly coercive measures, more or less visible, more or less effective, and more or less resented by parts of the population, non-natives and natives alike. Laponce’s law and the survival argument Intelligently designed, a linguistic territoriality regime is both necessary and sufficient to keep competence in a local language sufficiently high and universal for that language to fulfil, legitimately and sustainably, the top function as the official language of the political community. And this in turn is necessary and, if anything is, sufficient, to secure equality of dignity between peoples whose identities are closely associated to a language. This is my central argument in favour of linguistic territoriality. I shall consider objections to it below, but want to consider first 8 8 some related but distinct arguments which may add further strength to it under specific circumstances. Firstly, the justice-as-equal-dignity case for a linguistic territoriality regime gains further strength once linguistic communities understand, and believe that the others understand, that in a high-mobility, high-communication context, a linguistic territoriality regime provides the only way of preventing the gradual erosion of their language that is not unacceptably coercive. This strengthening of the argument does not rely on anything like a holistic right of each language to survive, or to have a fair chance to survive. Nor does it appeal to the need to preserve the societal culture associated with a particular community’s inherited language as a necessary component of the resources required for leading a meaningful life. It simply says that the argument for a linguistic territoriality regime on grounds of equal dignity becomes stronger once it is understood to be the only effective and acceptable way of preventing the gradual extinction of the language with which a community’s identity is linked. To understand this, it is important to realize that there are two fundamentally distinct mechanisms that threaten the survival of languages. One of them is top-down. It consists in a national political authority deliberately imposing the national language at the expense of local idioms, mainly through compulsory schooling and compulsory military service. As the trans-national migration of individuals and families expanded, the same tool of compulsory education in the national language, routinely coupled with a stigmatisation of the immigrants' original languages, was massively used to secure the assimilation of immigrants and their offspring. Thus, the same basic process applied in one case to the linguistic assimilation of dialect users and national minorities stuck within the borders of a state with an official language different from their mother tongues, and in the other to the assimilation of ethnic minorities stemming from immigration. In both cases, it can be aptly 9 9 described, using Gellner's (1993: 139-140) telling metaphor, as one that gradually converts the linguistic map — and tirelessly re-reconverts it, as new stains appear — from a Kokoshka landscape into a Modigliani portrait, from a motley patchwork of coloured spots to a neat juxtaposition of smooth surfaces demarcated by firm lines. However, this Gellner-type, top–down, state-driven mechanism does not constitute the only mechanism through which weaker mother tongues get displaced by stronger ones in a post– agrarian, frequent-contact, high-mobility context. There is another, bottom–up, people-driven type of mechanism, a soft brand of Modiglianisation as it were, which can be captured in what I shall call Laponce’s law: the kinder the people, the unkinder the languages. ix Languages can coexist for centuries when there is little contact or not at all between the parts of the population that speak it. But as soon as people start talking, trading, working with each other, courting each other, having children together, the weaker of the two languages will be slowly but inexorably driven out by the other, by the one which people have a stronger incentive to learn because of its being more prestigious or more widely spread. x This macro-law is nothing but one macroscopic reflection of the interaction of the two micro-mechanisms referred to earlier: probability-sensitive learning and maximin language use. Quite often, the top-down and bottom-up mechanisms operate side by side and reinforce each other. But sometimes the Laponce-type mechanism is observable in a fairly pure form, for example in Quebec until 1975, in Flanders between 1898 and 1932, or in Brussels up to the present. In these areas and periods, officially affirmed bilingualism is supposed to have switched off the Gellner–type mechanism as regards the two recognised languages, while the dominant language (English in Canada, French in Belgium) keeps spreading at the expense of the weaker one through differential conversion rates of both native and immigrant families. xi Because 10 10 language is a means of communication, there is an intrinsic vulnerability of the weaker language, which does not plague in the same way other components of culture, such as religious practices or cooking habits. How quickly the stronger language will invade contexts previously occupied by the other will vary greatly as a function of such factors as the scope of immigration, the progress of urbanization, the degree of residential and educational segregation, etc. But once the linguistic communities involved become aware that laissez-faire leads to the gradual erosion of one of the languages, it is hard for those who identify with it not to feel despised, treated unjustly, denied equal dignity, if they are not allowed to use effective means to prevent this predictable agony. Survival without territory? According to perceptive observers of this process, such as Jean Laponce, these effective means, can only be provided by a linguistic territoriality regime. xii But is there really no alternative? After all, if people do not want their language to die, it is simply up to them to use it. However, two features of the mechanism that leads to the erosion of a weaker language combine to prevent this voluntaristic alternative from holding much promise. To start with, there is the standard collective action problem as it applies to the choice of language for both education and communication purposes. Consider education first. Parents may realize that if all send their children to dominant language schools, their own language will gradually be eroded and disappear, and want to prevent that. But if other native parents do not opt for the dominant language school, the language will not be eroded, and it is then in the interest of each family, taken separately, to send its own children to such a school. If others do defect in this way, on the other hand, no particular family will make a difference and each may therefore just as 11 11 well send its children to such a dominant language school. As regards next communication, consider the case of shopkeepers in an area with many customers who speak a dominant language different from the local one. Again, whether their competitors comply or not with the voluntary policy of deviation from the maximin in order to save their language, it will be in any particular shopkeeper’s self-interest to try to gain or retain customers by defecting, i.e. by accepting to use the dominant language. To prevent individual rationality from defeating the attainment of an option preferred even by all members of a particular linguistic community, tireless collective mobilization would therefore be required. Whether in matters of education or communication, well-targeted legislation is so much less onerous that the strenuous informal monitoring and painful mutual sanctioning without which the voluntaristic strategy cannot durably succeed. Secondly and even more crucially, one must remember that, in the terms I used to formulate Laponce’s law, it is the kindness of the people that provides the stronger language with its unkind claws. Speakers of the weaker language can, in order to block the process leading to its disappearance, insist on speaking their own language and on pretending they understand nothing else in the many informal contexts in which the dominant language is the maximin language, and is therefore the one that makes communication most fluid and mutual understanding least problematic. Implementing the will to maintain one’s language through this stubborn, exclusionary and hence ‘unkind’ insistence on using one’s language unavoidably generates a permanent climate of face-to-face tension between members of the two linguistic communities. Coercively imposed rules, even imperfectly enforced, have the advantage of reducing — without suppressing — these strains: it is less ‘aggressive’, ‘nasty’, ‘sectarian’, ‘unwelcoming’, ‘petty- minded’ to say ‘Sorry, I know it is stupid, but the law does not allow us to provide schooling, information or other services in your language’ than to say ‘Sorry, I refuse to listen or speak to 12 12 you in your language, or to provide services in the language in which you would find it easiest to receive them, even though nothing but my bad will prevents me from doing so’. Once it is admitted, for these two reasons, that voluntarism does not provide a serious alternative, and hence that some set of coercive rules regulating the teaching and public use of languages is required, it still does not follow that these coercive rules should take the form of a linguistic territoriality regime. The linguistic constraint needed to protect the weaker language could in principle either apply to all people in a specific place — the linguistic territoriality regime — or to specific people wherever they are. The latter option could be called a linguistic personality principle, interpreted this time in a coercive sense, not in the permissive sense mentioned above (section 2): people with a specific mother tongue would be obliged to learn or use it in specified contexts, wherever they happen to be inside the area in which the legislation applies. This second option is not exactly as commonly used as the first one. The compulsory use of Hebrew, Latin or Arabic for liturgical purposes could be interpreted as approximations of it, and so can the restriction to parents who did not graduate from Quebec’s English-language school system of the obligation to send one’s children to a French-language school, or a rule briefly implemented in Brussels in the 1970s that forced people educated in Dutch to send their children to a Dutch-medium school. Which of the two formulas offers a stronger guarantee of survival to a threatened language depends on the respective probabilities of the homeland running empty on the one hand and of the race losing interest in procreation (or intermarrying heavily) on the other. The former formula, however, has several decisive advantages over the second one, which jointly account for its far broader adoption. Firstly, it is arguably less coercive: one can change one’s residence, not one’s native tongue. Secondly, it is far easier to implement because of the place-bound nature of 13 13 many of the services concerned (educational, administrative, judiciary, etc.). The third reason is more subtle, yet ultimately the most important. To understand it, let us remember the fundamental objective assigned here to the implementation of a linguistic regime. The aim is not, as such, to guarantee the survival of a vulnerable language, but to secure the equal dignity of the identity associated with it. And for this objective to be achieved, it is not enough that survival of the language should be secured. The latter must also be enabled to function in top position, i.e. as the public language of its native speakers’ political community. At first sight, this could be achieved through a devolution of powers to non-territorial as well as to territorial linguistic communities. But this is not the case, for reasons that are worth spelling out. The non-territorial linguistic federalism thus suggested was proposed by Karl Renner (1918), the Austrian social-democratic thinker and statesman who first set out to think systematically about how democracy could function in a multilingual context. In his elaborate proposal, each of the eight nations comprised in the Austro-Hungarian Empire (Germans, Czechs, Poles, Hungarians, Slovenes, Slovaks, Croats, Italians) were to be given their own Parliament and granted full autonomy in matters of culture, education and some aspects of social policy, with issues of joint concern settled through negotiation between the representatives of the various nations. The Austro-Hungarian Empire fell apart shortly after the book was published, and Renner's scheme was therefore never tried in the context for which it was meant. But some form of non-territorial federalism was tried elsewhere, for example in Estonia in 1925, in Cyprus in 1960 or in South Africa in 1984, never with great success. This is hardly surprising, as it has two intrinsic defects which territorial federalism avoids. One is that it is akin to racial apartheid in giving people living in the same places access to services that may be of greatly different quality, at least if the linguistic divide correlates with 14 14 economic inequality, simply by virtue of a feature — one’s mother tongue — which is hardly less a matter of arbitrary luck than one’s race. Unequal rights in different places does not have the same humiliating, degrading nature. The other defect derives from the irreducibly spatial nature of any coherent, comprehensive project for a political community. There is a deep structural strain inherent in any set up in which distinct political communities elaborate and discuss their own projects separately and then need to negotiate and compromise with each other on countless issues, because they happen to share the same territory. Non-territorial political communities, therefore, are not the way to go. Consequently, if Laponce’s law is to be counteracted, territorial legal constraints are to be strongly preferred to personal ones, not only because they are less coercive and more convenient to implement, but also because they are far better suited to enable each protected language to sustainably function as a political language, and hence to be granted the corresponding dignity. Laitin’s sons of the soil and the pacification argument In addition to the preservation of some degree of symmetry and the prevention of linguistic erosion, both directly relevant to the pursuit of linguistic justice as equal dignity, the pacification of inter-ethnic relations is also frequently invoked to justify linguistic territoriality regimes. xiii To spell out this argument, consider Fearon and Laitin’s (2000) finding that most cases of civil violence in recent decades were the making of sons of the soil, i.e. of autochthonous populations that felt invaded by members of a distinct ethnic group moving in, either spontaneously or in organised fashion, from another part of the same multi-ethnic state, without trying to integrate into the local population, and in particular without bothering to learn the local language. Especially if they gradually get outnumbered — or fear getting outnumbered — by the 15 15 immigrants, without any legal means of preventing it, they see violence as the only way of preserving their legitimate interests. In a more or less acute form and with a more or less pronounced time lag, many of the inter-ethnic conflicts most familiar to us — from Ulster and Palestine to East Timor and Kosovo —, illustrate the same basic pattern. In this light, a firm and unambiguous linguistic territoriality regime may be expected to have a pacifying impact, at least in those circumstances in which the unbalance of power is not such that sons of the soil spontaneously surrender to the ‘invaders’ and switch to the language of the ‘colonizers’, accepting their linguistic inferiority as one of the many facets of their subjection. However, David Laitin (2004) also documented a significant positive correlation between the institutionalization of language rights — at least some of which can be assumed to consist in some linguistic territoriality regime — and the occurrence of inter-ethnic violence. This sounds like a refutation of the argument just sketched on behalf of linguistic territoriality regimes. But it is not. For Laitin’s interpretation of this correlation is not that the institutionalization of language rights causes inter-ethnic violence, but rather that both are the consequence of the weakness of states. Hence, his analysis is consistent with the view that the concession of (the right sort of) linguistic rights is a way of taming inter-ethnic conflict, just as the strong correlation between the occurrence of flu and the absorption of flu medicine is consistent with a favourable healing impact of (the right sort of) flu medicine. Moreover, on the background of his own ‘sons of the soil’ thesis, it is worth distinguishing, among linguistic rights concessions, between ‘territorial’ and ‘personal’ ones, as only the former can be expected to contribute to pacification, whereas the latter should rather be expected to have the opposite effect. That the linguistic territoriality regime may contribute to the pacification of inter-ethnic relations remains therefore plausible enough. And this fits in with its justification in terms of 16 16 equal dignity. But the connection needs to be made cautiously. First of all, Laitin’s data and analysis suggest that there is a surer way of stamping out ethnic conflict: strengthening the state without any linguistic concession. But even leaving aside that this is seldom a real option in the countries concerned, what is best for peace is not necessarily best for just peace. The case for a linguistic territoriality regime is that it provides a way of pursuing lasting peace in a way consistent with justice as equal dignity. This is particularly clear when the main impulse behind the violence of the ‘sons of the soil’ is their feeling of being humiliated by arrogant invaders who despise their language and culture. However, it must be conceded that hostility towards newcomers speaking a different language may have other sources than a perceived threat to one’s dignity. It may well stem chiefly from the fear of tougher competition for jobs, housing or public services, or from the fear of having one’s community life impoverished. Thus, Jean Laponce (2004) stresses the negative externality that arises for a local community when natives of their language are replaced by non- natives who cannot or will not learn it. This negative externality is particularly onerous for local people poorly equipped for communication with aliens culturally quite different from themselves. All sorts of mutual informal services on which one routinely relies — from keeping an eye on each other’s property to organizing child care or taking elderly people to the hospital —, if not made impossible, are made significantly more difficult if communication and trust are impaired by the lack of a common language. An effective linguistic territoriality regime addresses such concerns, whether by having a dissuasive effect on the inflow, by accelerating the development of communication and trust between the old and the new, and by creating a realistic expectation that the newcomers will adjust to the locals rather than the other way around, thereby enabling the locals to retain at least a temporary advantage. 17 17 In addressing these concerns of the local population, the linguistic territoriality regime may switch off a process that could generate desperation and violence — in the worst case anti- immigrant racial riots — on the part of those who feel most threatened. Mechanisms of this sort establish a link between linguistic territoriality regime and pacification. However, the source of the violence to be averted is not always, or not always mainly, injustice interpreted as unequal dignity or in any other way. Indeed, the motive may be the fear of losing a privileged position, relative to disadvantaged intruders. Yet, the linguistic territoriality regime can be defended even then as a way of fostering peace consistently with justice: justice as equal dignity because of the counterfactual symmetry pointed out earlier, and distributive justice too to the extent that it is part of the core of an effective linguistic territoriality regime that it should efficiently equip newcomers and their offspring with proficiency in the local official language. Pacification, however is only a lateral aspect of the fundamental justification. The linguistic territoriality regime recommends itself on grounds of justice as equal dignity even, indeed perhaps especially, in those cases in which the ‘sons of the soil’ are too subdued or too intimidated or too peace- loving to threaten the public order. Which languages, which borders? Before the implementation of the linguistic territoriality regime can get off the ground, however, it is indispensable to tackle the prior question of which languages should be granted a territory and of which territory this should be. There cannot be a neat answer to this dual question, but the guiding idea should be that there must be a sufficiently large and geographically concentrated number of people who regard themselves as sharing the same language and are willing to pay the cost, if any, of implementing a linguistic territoriality regime. 18 18 It is important to clarify straight away the relationship between this guiding idea and something sometimes called the ‘law of the soil’, or the claim of an ethnic group to its ancestral land. It does not matter as such, when the linguistic territoriality regime is being put into place, for how long the linguistic community has been living on the territory concerned. It only matters indirectly as it is likely to be strongly correlated with the degree of geographical concentration of the population and may significantly affect the community’s willingness to pay the cost of implementing the linguistic territoriality regime. Providing it is sufficiently large and concentrated, therefore, a population stemming from fairly recent immigration may qualify no less than one which has been living in the same place for millennia. It is in the very nature of the territoriality principle, however, that once it is in place a crucial distinction is being made between the ‘locals’ and the ‘immigrants’, who are expected to adjust linguistically to the local environment. Fairness is respected to the extent that it can credibly be said: ‘You need to learn our local language here just as we would need to learn yours if we settled in your own place’. Some people’s place may be small or poor or very cold or very hot, and the probability of my ever settling there close to zero, but the symmetry needed for equal respect does not require equal attractiveness or equal probability. xiv For those allophone immigrants who do not have a protected linguistic homeland — the Kurds, the Arameans, the Baluba —, the solution cannot consist in allowing them to grab a territory wherever they decide to migrate, but where their presence for centuries has made them sufficiently concentrated over a large area for an appeal to territorial protection to make sense. In many cases, no doubt, there will be disagreement about whether such a principle was tacitly in place and for how long: the English-Only movement in the US, for example, takes for granted that it was when the Hispanics arrived en masse, yet that it 19 19 was not when the first Anglophones settled in Los Angeles or Nuevo México. This makes it all the more urgent to clarify the linguistic status of each place, using the above guiding idea to select the languages and draw the borders. Unless these borders are just making explicit the linguistic territoriality regime inherent in much nation building, they are bound to be contentious. Many compromises will need to be made between geographical coherence and linguistic homogeneity, between drawing borders so that they include as many natives as possible of the language concerned and as few natives as possible of the other languages. Whichever compromises are made, some people will be stuck on the ‘wrong’ side of the border. But this need not be a disaster. The vested rights of such linguistic minorities can be protected through special measures that will be phased out as the generation to which they belong dies out. Moreover, languages other than the official one can thrive and even get official support. The lines of the Modigliani painting entailed by the regime must be firm and the contrasts can be sharp, but the colours need not be dark. What matters is that the protective measures be powerful enough to keep promoting the official language into maximin position often enough for all permanent residents to have both the desire and the opportunity to acquire an adequate competence in the local official language. Failing this, the local language could not legitimately be given the highest function. Net benefit or net cost? The key condition, however, is that there must be, with regard to a particular language and particular borders, a community willing to bear the cost of implementing the linguistic territoriality regime on behalf of its language. What does this cost consist in? Most obviously, foregoing some economies of scale in the production and dissemination of educational material, 20 20 legislation or administrative documents. How much is thereby being foregone chiefly depends on the respective sizes of the linguistic communities whose languages are being adopted or abandoned, respectively, as a result of the territoriality regime being implemented. This is why the existence of a critical mass of native speakers is a decisive consideration. However, the loss inherent in scale shrinking may be more than compensated by some positive efficiency effects of adopting the native language of a larger share of the population for educational and official purposes. Take the case of the Democratic Republic of the Congo, where an educational system (dys)functioning essentially in French produces generations of illiterates. Given the extreme dearth of resources now and in the foreseeable future, it is worth exploring the option of organizing primary and secondary education in the country’s four recognized national languages (Kikongo, Swahili, Lingala and Ciluba) in the parts of the country in which they prevail, while making official use of those languages in public administration and political life, again in the corresponding areas. Of course, this would require the production of teaching material and administrative documents for a population averaging a quarter of the country’s 50 million population, instead of producing it for the whole country or importing it from other ‘francophone’ countries. But the performance of a poorly equipped educational system could be expected to be enhanced if it were to function in languages in which, say, 90% of its pupils are competent, rather than in one in which 7% are. Moreover, the accountability of politicians and public officials, and hence the contribution of public decisions to the welfare of the population, can reasonably be expected to increase as a result of their having to function in a language understood by the majority of the citizens instead of just a tiny elite. xv In this light, it looks as if there may well be circumstances in which implementation of the linguistic territoriality regime generates a net benefit, rather than a net cost for the local 21 21 population. This suspicion is further reinforced by the following consideration. With no linguistic territoriality regime in place (or, worse still, with a foreign language imposed), it is as if locals had to pay customs tariffs on their own soil, to use Benedict Anderson's (1993: 615) illuminating metaphor, by having to learn a foreign language and to communicate clumsily in it even in their own homeland. Once the principle is in place, it is for the non-locals to pay the ‘customs tariffs’ of language learning and uncomfortable communication. Obviously, the regions claiming this symmetry of ‘customs tariffs’ must feel sufficiently confident that the non-natives they could benefit from will bother to pay them, rather than just turn elsewhere. It is one aspect of the general point metaphorically expressed in this last observation that constitutes arguably the main component of the cost intrinsic to any implementation of the linguistic territoriality regime under contemporary conditions. It consists in the growing asymmetric flow of human capital towards what I shall call the ground floor of the world, i.e. those parts of the world in which English, the worldwide lingua franca, is the official language, essentially the greater part of North America, the British Isles and Oceania. xvi It is only recently that it has become possible to document with any statistical precision the existence of such an asymmetric flow. Thus, Docquier and Marfouk (2005: 23) observe that ‘immigrants are particularly educated in Canada, Australia, New Zealand, the United States and the United Kingdom’, i.e. in the world’s five main Anglophone countries. Their estimates indicate that three of these countries (the US, Canada and Australia), totalling hardly more than 5% of the world population, house nearly 75% of the world’s ‘expatriate brains’, defined as those graduates of higher education who are not currently domiciled in their country of birth. In 2000, the non-anglophone OECD countries had an aggregate net deficit of 2.1 million brains (down from 2.8 million in 1990), i.e. there were over 2 million more graduates born in those countries 22 22 who were living elsewhere than there were graduates born elsewhere living in those countries. By contrast, the six anglophone OECD countries enjoyed a massive surplus of 13.9 million brains (up from 9.2 in 1990), 9.9 million of them in the USA alone (up from 5.9 million in 1990). Put paradoxically: out of the 12 million brains sucked into the rich portion of the planet, 14 inhabit its Anglo compartment. To understand what underlies this strong asymmetry, just imagine you are thinking of moving abroad. Which country you will seriously consider moving to will no doubt be affected by many factors, and above all by job opportunities. However, (1) which job opportunities you are likely to be best informed about will be significantly affected by whether or not you know the country's language; (2) which job opportunities you feel you would be (or could quickly become) suitable for will be affected by how well you master the country's language; (3) if you have a family, which country you would find it sensible to move to is bound to be influenced by which languages your spouse and children understand and speak, or could easily learn, or which it makes independent sense for them to learn xvii ; and (4) how genuinely welcoming a country's local population is likely to be towards foreigners will also depend on how quickly and how well they can reasonably expect the newcomers to master their language, thereby avoiding the disruptive negative externalities mentioned above. All of these considerations have some weight for migrations of all sorts, but there are four reasons why they can be expected to be particularly weighty for the migration of the high-skilled. (1) The high-skilled are more likely to have bearable job opportunities at home and can therefore afford the luxury (relative to the needs of sheer survival) of not inflicting too much of a linguistic adjustment cost on themselves and their families. (2) The jobs for which they would qualify generally have far greater linguistic requirements than unskilled jobs. (3) For the time being, the 23 23 probability that high-skilled workers and their families already have, before migration, a good knowledge of at least one foreign language is far higher than for other workers. (4) Unlike the less skilled, the high-skilled have a sizeable probability of having gone abroad to study, and where they have studied is bound to affect where they may later consider moving to, while being greatly affected not only by what languages they know, but even more by what language they find important to try to know better. Indeed, asymmetry in the net flow of students is at least as pronounced as in the net flow of graduates. For all these reasons, as one language gets ever better known abroad, and therefore also ever more useful to know better, the propensity for workers in general, but especially for high- skilled workers, to migrate towards countries in which that language prevails, can only be growing — other things remaining equal. In a world in which a number of mother tongues have developed into regional lingua francas, the asymmetry just described can be expected to generate a number of regional attractor basins into which the high-skilled will tend to descend from the linguistic hills formed by countries whose languages are hardly known abroad. But in a world in which English is being snowballed into the one universal lingua franca, we can expect the formation of a huge ground floor visible from all the linguistic hills and mountains of the world, from all the upper floors in which more obscure, less penetrable mother tongues are being spoken, but in which the lingua franca is getting ever better known; a huge ground floor towards which the high–skilled of Finland and Hungary but also of Germany and France, will tend to wander more and more, without anything like a matching tendency for the high–skilled of the United States or Britain to climb up to the French plateau, let alone to the Hungarian peak. 24 24 Territoriality made cheaper In an increasingly knowledge-based economy, it is not difficult to understand how heavy a cost this systematic net loss of highly selected, expensively trained people may mean in terms of economic dynamism. With further spreading of the lingua franca, one can expect a constant swelling of the pool of potential recruits for high–skilled jobs on the ground floor. With such a large pool, the countries concerned can allow themselves to be selective. xviii The more economic dynamism is boosted as a result, the more attractive these places become, language aside, and hence the greater the scope for more creaming off of the high skills of the rest of the world. For upper-floor populations, this chronic net outflow of human capital constitutes a significant cost likely to weigh far more than any economies of scale foregone. However, the outflow is necessarily accompanied by three epiphenomena which may amount together to a huge discount in terms of long-term cost. First, there are the remittances sent back home by migrant workers to their close or more remote relatives. For various reasons, including the enhanced safety of trans-national bank transfers and the dwindling cost of keeping in touch, the volume of these remittances has been growing steadily, to the point of outstripping the volume of development aid. xix Secondly and probably more significantly as regards the highly skilled, there is the transfer of knowledge by those returning to their country of origin, whether by virtue of what they learned when studying, training and working in a foreign country, or by virtue of the network of trusted contacts they established during their stay abroad. xx Thirdly, the presence on the ground floor of bright brains from all over the world makes the ground floor particularly vulnerable to the cheap worldwide spreading of whatever knowledge it possesses and produces. The spread of English as a lingua franca induces asymmetric free-riding on Anglophone intellectual production. xxi The presence of highly trained non-Anglophones on Anglophone soil 25 25 greatly helps in making this information immediately identifiable, understandable and usable in the rest of the world, while the reverse is not true. There is no doubt that these three mechanisms soften the blow, but not to the extent of preventing the gap from deepening, between the ground floor and its ever wider and deeper attraction basin, in terms of knowledge and wealth creation. Hence, the net cost for the upper floors, in terms of steady relative or even absolute decline, is something they should worry about, perhaps even so much that they may wonder whether it makes sense to keep inflicting it upon themselves. After all, it is up to them to give up their linguistic territoriality regime. They could make settling in a non-Anglophone country linguistically as comfortable for the highly skilled of the world as settling on the ground floor, whether in terms of administrative procedures, schools or courts, and even in terms of political life. By doing so, they would go a long way towards cancelling the linguistic competitive advantage of the ground floor. In the process, however, they would also trigger a powerful mechanism which may look innocuous enough at first but will soon displace local languages in an increasing number of contexts. As argued above, this would amount to a surrender of linguistic justice as equal dignity — not simply to a gradual flattening of the linguistic surface of the globe. Nonetheless, a carefully and firmly limited use of this strategy may make sense, and even prove essential to keep the cost bearable. It consists in lowering to ground floor level, not the whole of a non-Anglophone country, but duly circumscribed ‘linguistically free zones’, i.e. small areas in which the constraints of the linguistic territoriality regime are waived. The highly skilled and their families who settle in these zones, typically selected because of their high-tech vocation, would be relieved of the heavy ‘tax’ of having to learn the local language. As a consequence, the lingua franca would gradually rule within these enclaves about as imperially as 26 26 it does on the real ground floor. The organization of a significant proportion of higher education and scientific research in the English medium constitutes a minimal component of the ‘linguistically free zones’. xxii In the absence of such an exception to the linguistic territoriality regime, the spreading of competence in the lingua franca (and of the desire to improve it) would keep swelling the pool of students wanting to study in the higher education institutions of the ground floor, thereby enhancing the latter’s ability to select the best and further improve the quality of its higher education at the expense of what can be achieved elsewhere — bearing in mind that ‘quality’ of one’s peers is arguably the chief determinant of anyone’s educational achievement. Instead of lowering parts of the upper floors, one can try, secondly, to exploit the advantages of being on that floor. One potential advantage is that having a less widely spread language, by maintaining a distinctive culture, may make it easier to nurture a feeling of community and thereby to instil a sense of loyalty that will inhibit the opportunistic search for the highest net return among highly-skilled workers henceforth made more mobile by their competence in English. Another potential advantage is that being a speaker of a less widespread language and having to learn at least one other language as a result enables those who have to make that effort to escape the arrogance and the insensitivity to cultural differences that come too easily to those who have never had to undergo that humbling process and are invariably in the comfortable position of being able to use their mother tongue. Without noticing, such arrogance and insensitivity trigger rancour, resentment, even hatred. This may prompt actions against whose risk one needs to protect oneself, sometimes at great expense. Being (perceived as) less arrogant is an asset which the upper floors of the world can intelligently exploit — and already do. 27 27 With the inbuilt discounts listed above and a judicious use of the strategies just sketched, a number of linguistic communities throughout the world will feel that it is worth shouldering the expected cost of sticking to a sufficiently effective version of the linguistic territoriality regime, the cost of saving their soul, of preserving their identity, of upholding their dignity. Of course, within the existing institutional world order, the more the lingua franca spreads, the more vulnerable the countries concerned become. But at the same time, the more the lingua franca spreads, the less unrealistic the prospect of creating the linguistic preconditions for a European and worldwide institutional order that will make such a choice less costly. Notes on contributors Philippe Van Parijs holds the Chaire Hoover d’éthique économique et sociale at the Université catholique de Louvain and is a regular Visiting Professor of Philosophy at Harvard University. His recent publications include L’Allocation universelle (2005, with Yannick Vanderborght) and Redesigning Distribution (2006, with Bruce Ackerman and Anne Alstott). References Ammon, U., 2001. The dominance of English as a language of science: effects on other languages and language communities. Berlin: Gruyter. Anderson, B. R.O., 1993. Nationalism. In : J. Krieger, ed., The Oxford companion to the politics of the world. Oxford: Oxford University Press, 614-619. Docquier, F. and Marfouk, A., 2005. International migration by educational attainment (1990-2000), Release 1.1. Washington DC: World Bank Publications, 1-8. Fearon, J. D. and Laitin, D. D, 2000. Sons of the soil: immigrants and the State. Stanford University: Dep. of Political Science. 28 28 Gellner, E., 1983. Nations and nationalism. Oxford: Blackwell. Kapur, D. and McHale, J., 2003. Migration’s new payoff. Foreign Policy, 139, 49-57. Kodelja, Z. and Krivic, M., 2007. Language rights in education in Slovenia. In: Education, law and language rights. Antwerp: European Association for Education, Law and Policy. 1-17. Laitin, D. D., 2004. Language policy and civil war. In: P. Van Parijs, ed., Cultural diversity versus economic solidarity. Brussels: De Boeck Université, 171-88, at www.etes.ucl.ac.be/Francqui/Livre/Livre.htm. Laponce, J., 1984. Langue et territoire. Québec: Presses uniersitaires de Laval. Translation: Languages and their territories. Toronto: University of Toronto Press, 1987. Laponce, J., 1993. The case for ethnic federalism in multilingual societies: Canada's regional imperative. Regional Politics and Policy, 1, 23-43. Laponce, J., 2004. Comments on Laitin and Grin. In : in P. Van Parijs, ed., Cultural diversity versus economic solidarity. Brussels: De Boeck Université, 203-10, at www.etes.ucl.ac.be/Francqui/Livre/Livre.htm Laponce, J., 2006. Loi de Babel, et autres régularités des rapports entre langue et politique. Québec: Presses de l’Université Laval. Levine, M. V., 1990. The reconquest of Montreal: language policy and social change in a bilingual city. Philadelphia: Temple University Press. Maiworm, F. and Wächter, B., 2002. English-language-taught degree programmes in European Higher Education. Trends and Success Factors. Bonn: Lemmens. Mukash, K., 2003. Situation linguistique et dynamique des langues en République Démocratique du Congo contemporaine. Kinshasa: Observatoire des langues nationals, 13. Nelde, P. and Darquennes, J., 2001. Sprachwechsel in der Großstadt – eine Brüsseler Perspektive. In: J. Born, ed., Mehrsprachigkeit in der Romania. Wien: Praesens, 91-104. Papaux, A., 1997. Droit des langues en Suisse: Etat des lieux. Revue suisse de science politique, 3, 131-134. Patten, A., 2003. What Kind of Bilingualism?. In: W. Kymlicka and A. Patten, eds., Language rights and political theory. Oxford: Oxford University Press, 296-321. 29 29 Réaume, D. G., 2003. Beyond personality : the territorial and personal principles of language policy reconsidered. In: W. Kymlicka and A. Patten, eds., Language rights and political theory. Oxford: Oxford University Press, 271-95. Renner, K., 1918. Das Selbstbestimmungsrecht der Nationen. In: besonderer Anwendung auf Oesterreich (Leipzig and Wien: Franz Deuticke). Schlesinger, A. M., 1998. The disuniting of America: reflections on a multicultural society. Revised and enlarged edition. New York: W.W. Norton. Stevens, G, Jin, K. and Song Hyun Jong, 2006. Short-term migration and the acquisition of a world language. International Migration, 44, 167-79. Van Parijs, P., 2000. The ground floor of the world: on the socio-economic consequences of linguistic globalisation. International Political Science Review, 21, 217-33. Van Parijs, P., 2004. Europe’s linguistic challenge. Archives européennes de sociologie, 45, 111-152. Van Parijs, P., 2008. Grab a territory! Linguistic dignity and English dominance in the European Union. In: J. Poirier et al. eds., Ties that bind: accommodating diversity in Canada and the European Union (Bern-Berlin- Brussels: Peter Lang). Notes i This chapter is a component of the draft of a book in progress under the title Linguistic Justice for Europe and for the World (Oxford University Press). Some of the claims it takes for granted are being presented and defended in other components of this book, which will be referred to below as LJ followed by chapter or section number. A first rough formulation of the book’s main claims can be found in Van Parijs (2004). A couple of sections of this chapter also appear in Van Parijs (2008). ii See LJ 2 and LJ 3 on cooperative justice and distributive injustice, respectively, and on how best to address them. iii It need not be assumed that people’s collective identity is universally linked with a language, or that it is more often, or more strongly, linked with language than with religion or ethnic origin. What is special about languages is that a privilege needs to be given to one of them across borders in today’s world (see LJ 1), whereas there is no 30 30 analogous case for a privilege to one religion or one race. (There is an analogous case for the privilege a city must be given as the political capital of a supra-national political entity, but this is a privilege granted to a space where all citizens of this entity must be welcome, not to a particular group of people. iv It can be linked, for example, to the importance attached by Rawls to society’s institutions being arranged so as to provide the ‘social bases of self-respect’, no matter what effect these may have on the distribution of the social and economic advantages covered by the difference principle. Other theories of distributive justice may accommodate this idea differently. For example, prior to discussing which metric of distribution would be most relevant, they may require that all members of society must be given an equal status, that they cannot have their identity disparaged, ranked lower than that of others. v See Van Parijs (2008) and LJ 4.1 for a discussion of these first two strategies against linguistic injustice as unequal dignity and their limitations. vi On this distinction (often misleadingly used), see Réaume (2003) and Patten (2003). I discuss below (section 4) a coercive interpretation of the personality principle. vii Here is, for example, the Slovenian version of the linguistic territoriality regime, as laid down in Slovenia’s 2004 Law on the Public Use of the Slovenian Language: ‘The law states that Slovenian shall be used orally and in writing in public life… It stipulates that the names of all state bodies, local administrations, public organizations, public companies, and political parties shall be in Slovenian. Public insignia as well as the names of private companies, premises and shops should be in the Slovenian language, too. All proceedings involving public and private companies should be carried out in the Slovenian language. Slovenian is also prescribed as the language of public notices, conferences, press releases, announcements, and product labelling and instructions. Contracts with Slovenian companies must be written only in Slovenian and only this version may be considered as an original. In addition, all companies and individuals under private law must communicate with their customers in Slovenian and only people with appropriate knowledge of Slovenian can be employed in jobs that require communication skills’. (Kodelja and Krivic 2007, p. 9.) viii The description of these two mechanisms and their explosive interaction is refined and qualified in LJ 1. ix The phrasing is mine, but the process at work is perceptively described by Jean Laponce (1984, 1993, 2006). x See, for example, the statistics on the language prevailing in mixed (French/English) couples in Canada (Laponce 1993, pp. 34-35). 31 31 xi The realization of the steady progress of English in Montreal (despite the inflow and higher birth rate of catholic francophones) and of the steady progress of French in Brussels and all major Flemish cities gave the key impulse to the demands for a linguistic territoriality regime as a more serious way of implementing the equal dignity of the two languages than the sheer formal assertion of equality and nationwide bilingualism. See Levine (1990) on Montreal and Nelde and Darquennes (2001, pp. 94-6) on Brussels. xii Along the same lines in the Swiss context, see e.g. Papaux (1997 p. 133): ‘it is absolutely necessary to determine the territorial domains of each language and to protect autochtonous linguistic communities, whether or not they are threatened, in their traditional spreading areas. For the persistence of national languages cannot conceivably be guaranteed without ascribing to each an exclusive territory’ xiii When comparing the three oldest multilingual democracies, for example, it is often said that the secret of Switzerland’s greater linguistic peace, relative to Belgium and Canada, resides in its much earlier implementation of the linguistic territoriality regime: there has never been a Germanization of Geneva analogous to the Frenchification of Brussels or the Anglicization of Montréal. xiv Might equal dignity not be better expressed if the territories grabbed by each language were equal in terms of size, population or wealth? This would have absurd implications. If the shares are equal and small (say, close to the current share of the smallest linguistic community), this would leave the bulk of the planet up for linguistic grabs, reducing the operation of the linguistic territoriality regime to a marginal museum-like phenomenon. If the shares were equal and big (say, close to an equal share of the total surface, population or wealth of the world), this would require converting to a different native tongue the bulk of the population of the world. And anything in between would combine both drawbacks in varying proportions. Moreover, this sort of formula would involve an inbuilt perverse incentive to multiply the salience of linguistic differences so as to be able to grab a larger territory. xv On the linguistic situation in the Congo, see Mukash Kalel (2003). Obviously, assessing the likely sizes of the overall economic costs and benefits of such a four-language territoriality regime is bound to remain speculative. The role given to the Indian Union’s sixteen national languages provides a sensible basis for such speculation, even though the populations involved are more massive (Telugu alone has more native speakers than there are Congolese citizens). Less obviously relevant but more comparable size-wise are the Finnish and Flemish cases: would Finland and Flanders be at the top of the OECD’s PISA rankings of educational systems, had their schools not resolutely shifted from Swedish and French to Finnish and Dutch, respectively, in the XXth century? 32 32 xvi A first formulation of the arguments in this and the next section can be found in Van Parijs (2000). xvii See e.g. Stevens et al. (2006, p. 175): ‘Korean adults, particularly those in the prime child-raising years, are much more likely to take their children along with them when visiting English-dominated countries than when visiting countries dominated by other languages’. xviii As Arthur Schlesinger (1998, p. 127) sums it up in the case of the U.S.: ‘We have shifted the basis of admission three times this century — from national origins in 1924 to family reunification in 1965 to needed skills in 1990’. xix See e.g. Kapur and McHale (2003). To remittances stricto sensu one should add the accumulated assets repatriated at the time of their return by temporary migrant workers and migrants who decide to retire in their home country. xx See OECD (2002) for various country case studies. xxi In LJ 2.4, I justify this free-riding as a form of compensation (more realistic than direct subsidies to language learning) for the free riding of English natives on the effort made by all others to produce a lingua franca. xxii On the gradual and very unequal spread of English as the medium of higher education beyond the ground floor, see Ammon (2001) and Maiworm and Wächter (2002). 
work_za3jfcb3dzdohathcb5ac3dlgm	----	Animal Rescue as Civil Disobedience Animal Rescue as Civil Disobedience Tony Milligan1 Published online: 4 May 2017 � The Author(s) 2017. This article is an open access publication Abstract Apparently illegal cases of animal rescue can be either open or covert: ‘open rescue’ is associated with organizations such as Animal Liberation Victoria and Animal Liberation New South Wales; ‘covert rescue’ is associated with the Animal Liberation Front. While the former seems to qualify non-controversially as civil disobedience I argue that (irrespective of other considerations such as effec- tiveness or advisability) at least some instances of the latter could also qualify as civil disobedience just so long as various norms of civility (e.g. norms concerning recognition of others, the avoidance of violence and threats) are satisfied. The case for such a move is defended against objections that covertness is (1) inherently suspect; (2) a failure to accept responsibility; and (3) inconsistent with civil dis- obedience as a form of communication. Against such objections, the paper emphasizes the importance of respecting the open texture of the concept of civil disobedience if it is to be of continuing relevance against the backdrop of changing forms of non-violent dissent. Keywords Civil disobedience � Violence � Communication � Rawls � Covert rescue � Open rescue Animal Rescue I want to argue that covert acts of animal rescue may (under some circumstances) qualify as instances of civil disobedience. This is not necessarily a justification of these actions or of their strategic wisdom as part of any broader approach towards securing animal rights. It is, however, a defence of the view that even if unjustified & Tony Milligan Anthony.milligan@kcl.ac.uk 1 Department of Theology and Religious Studies, King’s College London, Virginia Woolf Building, 22 Kingsway, London WC2B 6LE, UK 123 Res Publica (2017) 23:281–298 DOI 10.1007/s11158-017-9360-7 http://crossmark.crossref.org/dialog/?doi=10.1007/s11158-017-9360-7&amp;domain=pdf http://crossmark.crossref.org/dialog/?doi=10.1007/s11158-017-9360-7&amp;domain=pdf the acts in question still have a special standing. I will also take it that (irrespective of whatever else we want to say about the concept of civil disobedience) a claim of special standing is what is brought into play when we refer to ‘civil disobedience’ by contrast with ‘direct action’ or by contrast with various forms of political violence. (A point explained in more detail below.) By ‘animal rescue’ I have in mind actions which involve the following: (1) Removal of one or more animals from a situation of harm that has been deliberately brought about by humans. (2) Removal for the sake of the animal itself. (Although perhaps not only for the sake of the animal.) (3) Illegality, or at least the appearance of illegality in the form of trespass, breaking and entering, and theft. (With the animals in question being regarded as someone else’s property.) The third clause focuses attention upon the appearance of illegality in order to mark a contrast with the licensed (and legal) rescue operations of special animal welfare bodies such as the RSPCA. This paper focuses instead upon actions performed by animal rights activists when acting specifically as animal rights activists. Whether or not the actions in question turn out to be illegal on some best account of what the law is can be a matter for debate, although there is perhaps a default presupposition of their illegality. The two dominant forms of animal rescue, in this militant and challenging sense, are covert rescue (with identity concealment) and open rescue (with identity disclosure on the part of at least some of those involved). Covert rescue, in its systematically organized form, has been practised since at least the 1970s and is strongly associated with the Animal Liberation Front (ALF). 1 Sporadic instances of open rescue also date back to (at least) the later 1970s, but in its systematic and regular form this kind of rescue dates only to the 1990s. Specifically, it dates back to a sustained campaign of animal rescue initiated in 1993 and spearheaded by various Australian animal rights organizations, the best known of which is Animal Liberation Victoria (ALV). 2 Open rescue is still practised in Australia and it is also practised by animal rights groups in Europe and in the US but more sporadically and with far less media coverage. 3 Open rescue is quasi-respectable, and has been linked (by activists) with Gandhi’s concept of satyagraha which, for simplicity, we may understand as the non-violent struggle for justice and truth. 4 (An implication of this is that satyagraha for a bad cause would not be possible.) Covert rescue has a less favourable image. It has been associated (at least in the US) with domestic terrorism and attempts have been made to cluster legal responses to covert rescue together with responses to 1 Newkirk (2000), Mann (2009). 2 Mark (2003), Hawthorn (2010), O’Sullivan (2011), pp. 92–93. 3 Milligan (2013), chapter 11. 4 For civil disobedience as a branch of satyagraha see Gandhi (1996, pp. 50–57). For the association between satyagraha and related forms of eco-activism see Naess (1974). For the association with open animal rescue, see Milligan (2017). 282 T. Milligan 123 Islamic extremism. 5 While this may make the distinction between open and covert appear to be a rigid dichotomy, it nonetheless holds only up to a point. An open rescue on the ALV model will typically involve some covert information gathering prior to the (similarly covert) removal of a relatively small number of easily portable animals such as laying hens. Removal is also, ordinarily, carried out at night in order to avoid the risk of discovery and confrontation. The media and/or police will then be informed and no attempt will be made to conceal the identity of key activists. However, safety masks are sometimes worn (e.g. in laying sheds) and this does give opportunities for some identity concealment by some participants. We may, as a result, suspect that the authorities are given the identities of only a sample of activists and not everyone. There are also issues of concealment with regard to the broader networks of sympathizers who help to relocate and provide homes for rescued animals. Even so, open rescue does involve a strong element of genuine openness that covert rescue lacks. We might also struggle to associate the latter with Gandhian satyagraha, although this on its own need not rule out a classification of such action as civil disobedience given the demanding nature of Gandhian dissent. Indeed, there may be good reason for keeping the concepts of civil disobedience and satyagraha distinct in order to avoid a charge of excessive demandingness. Covert Action and the Animal Liberation Front At this point it may be worthwhile to focus upon one of the main reasons why it seems counter-intuitive to regard covert rescue as civil disobedience, i.e. organizational image, the way in which covert rescue has been deliberately presented by the network of agents who issue publicity under the ALF banner, publicity that is reminiscent of underground and quasi-terrorist organizations. To some extent, the ALF was the victim of bad timing. It emerged in the UK in the summer of 1976 at precisely the moment when growth of an organized revolutionary left (Trostkyists, Maoists, fragmentary groupings spun off from the declining communist parties of Western Europe) that had been significant around the time of the Vietnam War and the events of May 1968 in France, was going rapidly and permanently into reverse. Between 1975 and 1978 (give or take a few months), it seems to have become clear to many political activists that these groupings were not going to coalesce into mass organizations but would remain on the fringes of politics. 6 Nonetheless, in the far broader left-wing political circles out of which the ALF grew, at first in Britain and then in America, a continuing aspiration for radical political change beyond anything conceived of by social democratic organizations, was combined with a lack of organizational impact. What 5 The Animal Enterprises Terrorism Act (2006) defines animal removal (i.e. rescue) as property damage, and contains the provision that terrorism includes ‘Intentionally damaging or causing the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise’. For an assessment of the problems of this approach, see Hadley (2009). 6 For an unusually candid insider’s view of the onset of crisis among the Trotskyist groupings in the mid- to-late 1970s see Harman (1979). Animal Rescue as Civil Disobedience 283 123 helped to bridge the gap between aspirations and imagined political realities was a widespread idealization of a range of genuinely terrorist organizations such as the IRA, the PLO, the Popular Front for the Liberation of Palestine, the Red Brigades and the Baader–Meinhof Group. The legacy of this has, in more recent times, become extremely problematic for social democratic parties such as the Labour Party in England (the left wing of which has repeatedly been accused of anti- Semitism). When the ALF was formed, left sympathies for paramilitary organiza- tions were at their height. The upshot is that while the ALF has always been formally opposed to violence, or at least opposed to violence against persons, it did initially model its public image upon terrorist groupings and, more specifically, paramilitaries. Balaclavas and combat fatigues, more familiar from artwork in West Belfast, have always figured prominently in ALF publicity photos. Rescued animals are held across the chest like assault rifles. And while this may have been a persuasive political image on the radicalized left in 1976, it is far less so for our own times. The ALF has, however, remained stuck with an image that was already out of step with political realities by the 1980s and that has become utterly untenable in the aftermath of the attacks of 9/11. Paradoxically, one reason why it has been so difficult for the ALF to change its mode of presentation is that it is not actually a centralistic terrorist organization. It does not operate under a violently enforced military discipline. More simply, and unlike bodies such as the IRA, nobody can give an authoritative order to change tack. The absence of a centralized command structure means that disputes about image and overall direction tend to rumble on without end. 7 Given this, it is readily understandable why the open rescuers of the 1990s in Australia should have thought of open rescue as both radically different from the politically compromised activities of the ALF and as an alternative to the latter. Even so, in addition to the absence of a critical mass of support for an extensive open rescue movement, there are at least two significant reasons why some animal rights activists continue to find covert rescue an attractive option, or at least a more attractive option than open rescue. Firstly, the open rescue model is largely inapplicable in the case of laboratory animals whose special predicament has always formed a lure for animal rights activists. 8 The animals rescued in an open manner by ALV (and by other open-rescue operations such as Animal Liberation New South Wales) are typically deemed by their owners to have a low monetary value. Subsequent identification of rescued animals is also difficult. To the undiscerning eye of those who encounter thousands of birds every day, one low-priced chicken may look much like another. The upshot is that the recovery of animals is generally not attempted. Owners may want compensation or (an option we need not discount) 7 Perhaps the most prominent, and disastrous, example of a rare ‘turn’ by consensus was the alignment of the ALF with the Earth Liberation Front which sought, at the end of the 1990s to secure political change by economic attrition in the form of arson. Newkirk (2000, p. 336) has, with some plausibility, called this approach ‘political suicide’. 8 Marcus (2005) has questioned the strategic priority of focusing upon experimentation, but it does involve distinctive harms that can sometimes be absent from the food chain, Milligan (2010, pp. 126–132). Accordingly, there is at least one good ethical reason for according it a high level of attention. 284 T. Milligan 123 something close to payback or revenge. Or they may, more ambiguously, want something to be done. But they are not usually interested in the actual return of the rescued animals. By contrast, when lab animals are rescued from research facilities, they can represent several months of work and in the case of primates they may be expensive to acquire and difficult to replace. Individual lab animals are also, typically, tattooed for identification and this facilitates subsequent recovery. Even where efforts are made by rescuers to conceal tattooing, the presence of scarring and of any unusual injuries that have been inflicted upon an animal can also facilitate identification. From the rescuer’s point of view, recovery can be a real concern. Sympathetic vets may have to be used by those who wish to prevent it from taking place. Because of this concern about recovery, covertness has a practical rationale that has nothing to do with the image and ethos of underground organization. Rethinking Civil Disobedience If we assume that civil disobedience is, by definition, action in defence of humans, then the differences between open and covert rescue will be beside the point. Neither will qualify. The reasons for making such a restrictive assumption are, however, bound up with the idea that civil disobedience is best understood in relation to something akin to contract theory. If our understanding of political arrangements is that something akin to a social contract exists among humans and that when the terms of the contract are violated a form of dissent that respects the regular relations between free and equal agents may be legitimate, we may be tempted to use this as the core of a theory of civil disobedience. Protest over matters that fall outside of contractual bonds between humans could still be reasonable, on such an approach, but they could not then count as civil disobedience. This is the kind of thinking that has long been associated with John Rawls although exactly how deeply it is embedded in his position is a matter of dispute. Rawls seems to exclude protest over non-human matters but he may be read more generously. 9 Either way, the restriction has generally been rejected and I will take it that rejection is the best option. Certainly so, if we want to allow for at least some forms of eco- protest to count as civil disobedience. And if we allow the latter, there is no good reason to deny that civil disobedience over animals is just as possible. If we want to identify some core feature of claims about civil disobedience, and to root it more firmly in the tradition of Gandhi and Martin Luther King Jr, then we may do better to focus upon the idea of protest that has special standing. A more technical way of putting the same point would be to talk about the normativity of the concept of civil disobedience (various ‘oughts’ go with such talk). We may make sense of its normativity by pointing out that it is plausible to say that civil disobedience ought to have special legal standing (indeed some judicial figures be- lieve that it already does, albeit at the level of background principles rather than explicit rules for sentencing) or that it has special moral standing (and hence it is 9 Rowlands (1997, pp. 131–141), provides the classic defence of the applicability of Rawls to protest concerning non-humans. For an appraisal of Rowlands, see Garner (2013, pp. 32–38). Animal Rescue as Civil Disobedience 285 123 due a certain kind of tolerant response), but the same is not true with regard to instances of direct action. The concept of direct action is normatively neutral. 10 This idea of special standing can also be captured without appeal to problematic aspects of the familiar Rawlsian conceptual machinery associated with the account of civil disobedience in successive editions of A Theory of Justice. In particular, those aspects of the Rawlsian approach that would automatically rule out covert animal rescue as civil disobedience because such rescue does not look like a form of communication. The key notion that the influential Rawlsian account of civil disobedience is based upon is the idea of the illegally but peacefully communicated message: where legal protest over the relations between humans is not listened to, a way to make a point may need to be found beyond the bounds of the law. On such an account, the making of a point (in a particular way) is what really matters. 11 The Rawlsian approach to these considerations is cited so often that it is easy to overlook its innovative nature and the fact that it has an awkward match-up with anything that we are likely to find in the writings of Tolstoy, Gandhi or Martin Luther King Jr. But what if the idea of civil disobedience as protest with a special standing were cashed out otherwise? For example, by appeal to a notion of civility. Such an approach could also claim a strong (perhaps stronger) precedent in Gandhi’s writings and it need not automatically exclude all instances of covert animal rescue or (similarly) covert eco-protest. On the strongest version of Gandhi’s account of civil disobedience, agents who engage in the latter are required to act out of a virtue of civility. 12 More strictly, there is a doubling of Gandhi’s discourse in which he refers to protest as an act of love while at the same time (and less demandingly) referring to it as action out of civility. 13 Here, I will suggest (as Gandhi does seem to have recognized on other occasions) that while civility is less demanding than love, the requirement for an actual virtue of civility remains too strong if the relevant kind of action is to be available to ordinary flawed agents, to people like us, who have no special claim upon saintliness or exemplary virtue. 14 If we hold otherwise we will face two difficulties: (1) the problem of defending the account of civility against a charge of elitism (a perennial problem for civility theory); and (2) the problem that an action which would otherwise be accepted as civil disobedience might not have this standing because of the character of the agents involved, as exhibited on other occasions. Rather than introduce a requirement that civilly disobedient action must express some underlying state of virtue, we can adopt Gandhi’s less-demanding requirement that it must be in conformity with various minimal civil norms. What we will then have is an account of civil disobedience that is underpinned by a minimalist account of civility that escapes from the elitism problem and the agent-character problem. Yet, 10 For an example of judicial recognition of the special standing of civil disobedience see Thornton et al. (2010, pp. 333–334). 11 Rawls (1971). 12 For the importance of the civility of civil disobedience see Gandhi (2007, p. 319; pp. 318–319) and Gandhi (1996, pp. 47–49, pp. 70–71). 13 Milligan (2014, pp. 291–295). 14 Milligan (2013, pp. 89–92). 286 T. Milligan 123 at long as the norms in question are sufficiently robust we need not have undermined the rationale for claiming that special standing still applies. But it is one thing to suggest that such a minimalist account can be set up as a rival to a communication-based account, and quite another to actually set it out and to do so in a plausible manner. The latter task is somewhat too large a project for a single article. However, the outlines of such a civility-focused account can readily be given. Political action in line with the following norms will go some way towards capturing the relevant idea of ‘special standing’ protest. (1) Respect for others or, if we have no fondness for the language of respect, the recognition that other humans are fellow humans i.e. members of the same moral community. (2) The rejection of hate-speech. (Where communication is involved it too must be civil.) (3) The avoidance of acts that are driven by hatred. (A more minimal commitment than the King/Gandhi/Tolstoy requirement that we love our enemies.) (4) The largely successful commitment to try to avoid violence and threats of violence. (5) The avoidance of cruelty, which has a special place in liberal discourse and a special connection to the idea of humanity. Acts will lose their special standing if they are cruel. (6) The recognition of a duty of care or an avoidance of the reckless endangerment of others. (Although recklessness and its avoidance may turn out to be a matter of degree.) There will, no doubt, be certain actions that superficially look like civil disobedience but fail to comply with the above minimal norms. Neo-Nazis blockading a synagogue as a celebration of the Holocaust, while singing ‘We Shall Overcome’, would not be engaging in civil disobedience for a plausible and non- arbitrary reason. While they might be non-violent and polite, theirs would be a false civility because their action would be inconsistent with (1) above. They would not be complying with a basic level of acceptance of all others (Jews included) as members of the same moral community. However, some instances of reactionary protest (however defined) might well qualify as civil disobedience. (Lawbreaking protest in support of hunting might qualify just so long as the protest does not itself take the form of hunting and the violence that it involves.) Gandhi would not have liked this inclusion of reactionary instances of civil disobedience, given that he saw civil disobedience as a branch of satyagraha, condisdered as the force of truth, but it is difficult to see how a civility-based account can be norm-based rather than virtue- based while avoiding this concession. Virtue requires a depth of insight that a basic level of civility does not. Moreover, from an activist standpoint, this inclusiveness has an obvious advantage: if various ‘reactionary’ instances of dissent are allowed to qualify then it may be harder for courts to deny the civilly disobedient standing of instances of dissent such as animal rescue (of whatever sort) on the basis that the cause in question is not just. Animal Rescue as Civil Disobedience 287 123 A different sort of worry is that the proposed account will be too permissive or too inclusive. That it may not, in spite of being constraining up to a point, be sufficiently constraining. Against this, it may be pointed out that it will allow for the most plausible exclusions to be made even in cases where there seems to be some sort of good cause. For example, while non-violent but disruptive eco-actions might qualify, many other eco-actions will not do so. 15 Covertly putting spikes into trees as a way to disrupt felling might not itself be violent but it would involve reckless endangerment and so would conflict with (6) above. However, what is noticeable in the present context is that this failure to qualify has nothing to do with the covertness of such ‘tree spiking’. Other eco-actions, such as shifting boundary markers on sites scheduled for destruction, might well qualify while remaining equally covert. Similarly, there are instances of covert animal rescue that will fail to qualify for some or other reason. The scrawling of threats of violence upon lab walls by animal rescuers, would fail to do so and might undermine any claim of civil disobedience for the associated rescue. Even if civil disobedience does not need to be thought of primarily as a form of communication, when communication is involved it cannot take the form of threats while at the same time retaining a plausible claim to be civil. For this reason, it seems clear that many and perhaps most (and possibly all) actual instances of actual covert rescue by the ALF do not qualify, but this is not simply because of their covertness but because of their failure to comply with norms of civility. There may also be other kinds of animal rescue which would, hypothetically, fail to qualify irrespective of whether the rescue of animals was open or covert. For example, the rescuing of animals from any laboratory engaged in work with an exceptionally dangerous virus could well involve reckless endangerment (although such a situation has not, as yet, been confirmed). And any form of animal rescue that endangered the lives of the animals themselves would also fail to qualify. The key point here is that while plausible exclusions may be made, and imitations of civil disobedience may be ruled out, nothing in the above cluster of basic civil norms will automatically exclude all possible instances of covert animal rescue. And so, while covert rescue may lack the political potential of open rescue it could also, in some instances, count as civil disobedience depending upon the manner in which it is carried out. Or rather, it may do so just as long as a shift is made from a communication-based account of civil disobedience to a more civility- focused account of the above sort. Reasons Why Civil Disobedience is not Supposed to be Covert Given that there is a special rationale for covert rescue, particularly where lab animals are concerned, open and covert rescue (or at least some radically modified version of the latter) may begin to look like complementary activities. And, to some extent, this is not an entirely misleading impression. However, beyond both being instances of rescue, they still do not look like the same sorts of activities. While 15 Martin (1990, pp. 291–310). 288 T. Milligan 123 there is no obvious and good barrier to regarding open rescue as civil disobedience, it may still seem intuitively obvious that covert rescue simply cannot qualify, irrespective of how it is carried out. Its sheer covertness may seem to be an insurmountable obstacle. And one reason for this is that civil disobedience has typically been regarded (at least in the literature of the past couple of decades) as public and, even more strongly, necessarily public. Again, the Rawlsian account has set the tone for a good deal of writing on this theme. For Rawls, ‘civil disobedience is a public act. Not only is it addressed to public principles, it is done in public. It is engaged in openly with fair notice’; similarly, it is ‘a public, conscientious yet political act contrary to law’. 16 But exactly why this must be the case is not altogether clear. The Civil Rights Movement and successive campaigns for Indian independence were public but they were also religiously inspired and guided by a sense of spiritual values. Yet we do not consider the latter to be essential to civil disobedience. (Although Gandhi’s commitment to regarding civil disobedience as a branch of satyagraha seems at times to entail precisely this.) Moreover, none of the more obvious reasons for insisting upon the restriction to public acts look simultaneously strong and sufficiently fine-grained to exclude covert rescue without also excluding non-controversial instances of civil disobedience. The reasons for exclusion, if they prove anything, seem to prove too much. Let us consider the more obvious reasons in turn. (1) Reason-1 Civil disobedience cannot take the form of action which is intrinsically suspect, and there is always something intrinsically suspect about covertness. The idea that covertness is automatically suspect has quite a pedigree. It goes back at least as far as Pericles and his account of why the Athenian state preferred to operate out in the open. Understood as a requirement for civil disobedience, it can be found in both Gandhi’s writings and in Hugo Bedau’s account of civil disobedience, written at the time of the Civil Rights Movement, in the early 1960s. For Gandhi, ‘Disobedience to be civil has to be open and non-violent’. 17 (Although, here again, what is doing the real work may seem to be a notion of civility with the idea of openness regarded as a subordinate feature of the latter.) For Bedau, ‘Any one commits an act of civil disobedience if and only if he acts illegally, publicly, non-violently, and conscientiously with the intent to frustrate (one of) the laws, policies, or decisions of his government’. 18 But while there is something attractive about this option it does, nonetheless, seem to rest upon an over-generalization. Covertness, at least in the form of identity concealment, can be sinister but it need not be so. There is, for example, nothing particularly suspect about the actions of the street artist Banksy, yet he acts in a covert manner, with his identity (until recently) concealed, partly as a rejection of celebrity culture. 19 A comparable point may be 16 Rawls (1971, p. 364). 17 Gandhi (2007, p. 319). 18 Bedau (1961, p. 661). 19 Banksy (2005). And see Elsworth-Jones (2012, pp. 97–98) on reasons for his anonymity. Animal Rescue as Civil Disobedience 289 123 made about those who wore V-masks at Occupy Movement sites during the popular ‘Occupy’ protests of 2011. (Masks with the face of a Guy Fawkes-type character, which were referred to by one journalist as a ‘symbol of festive citizenship’.) 20 Identity concealment was bound up with the carnivalesque component of the protest, with a sense of losing oneself and with a rejection of charismatic leadership that was symbolized by protestors presenting themselves as part of the anonymous mass or ‘the 99%’. 21 Similarly, there is a long-standing, but somewhat rare, practice of identity concealment that we might call ‘Jane Doe refusal’. This involves a refusal to disclose identity following arrest in order to continue to disrupt the legal process, even at the expense of being incarcerated rather than bailed. Instances of Jane Doe refusal can be found in accounts of both the anti-abortion movement of the 1980s and the anti-capitalist movement of the early 2000s. 22 Against the idea that covertness is intrinsically suspect there is a case for saying that whether or not acting in a covert manner is sinister, suspect or both, depends at least in part upon the reasons for the covertness, its impact upon others and the lengths to which agents will go in order to preserve it. Thought of in these terms, there need be nothing intrinsically suspect about the reasons for covertness by animal rescuers of either sort. A degree of covertness by both open and covert rescuers at the point of rescue may readily be explained by appeal to a desire to avoid any violent physical confrontation with security personnel. The continuing refusal of more strictly covert ALF rescuers to disclose their identities after a rescue may also be explained, at least in part, by a desire to minimize the (all-too genuine) risks of animal recovery. Neither of these motives seem at all sinister, and both are at least consistent with a refusal to protect anonymity by violence or by threats rather than guile. However, a reformulation of the objection might be run by drawing from the idea of an avoidance of face-to-face confrontation (violent or otherwise). Perhaps there is something ethically privileged in the facial encounter. This is a familiar idea which appears in a figurative form in the writings of Emannuel Levinas but which can be found in a more literal and literary form in Iris Murdoch and indeed Herman Melville. Within radical political theory, it occurs as a reason for favouring the classic New England Town Hall Meeting over the anonymity of referenda. 23 But a good deal of what seems to be non-controversially civil disobedience (including open rescue) does not involve confrontation of this face-to-face sort. A civilly disobedient crowd can be, in a sense, faceless i.e. an anonymous mass. Added to which, police personnel can also have their faces concealed behind masks, a move that may rule out any direct, two-way facial encounter. If such an encounter, or even something rather more one-sided, were 20 Jones (2011). 21 Van Gelder (2011, vii, p. 1). 22 For Jane Doe refusal by anti-abortionists, see Nathanson (1989, pp. 31–32); for Jane Doe refusal by anti-capitalists, see Thompson (2010, pp. 59–60). 23 Levinas (1985), pp. 95–98. Murdoch (1957) centres its narrative around the facial encounter. Bryan (2004, p. 16) favours the town hall meeting over referenda because of the latter’s lack of face-to-face engagement. For the latter, see also Milligan (2016, pp. 100-101). 290 T. Milligan 123 required for civil disobedience then we are likely to exclude a great deal of entirely open and peaceful activity. (2) Reason-2 It may be suggested that civil disobedients are protestors who accept the consequences of their actions and this requires that they must act publicly and must disclose their identities. 24 In the case of covert rescue it may be charged that identity concealment is not motivated solely by reflection upon the interests of the rescued animals but by a refusal to stand up and be counted. However, this line of criticism is problematic. Covert rescue no doubt involves all sorts of people engaging on a once-only basis, but it depends upon a cadre of experienced activists who are well aware that sooner or later they are liable to be arrested. Keith Mann’s insider account of the ALF, From Dusk ‘til Dawn (2009) is a testament to this fact. It is, in part, a history of arrests and imprisonments, largely written while Mann was in jail. 25 Ingrid Newkirk’s somewhat earlier narrative account of the making of an ALF activist, Free the Animals (1992, revised in 2000), although a little dated and dramatized, contains an account of an introductory skills camp where lower-level activists are warned about the strong likelihood of both arrest and imprisonment: ‘‘We’re not building flash-in-the-pan heroes here,’’ M continued, ‘‘but a long-term army of committed people who accept that they may end up in the clink. Don’t think for one moment that you’re too smart to be caught.’’ 26 Even with the (problematic) appeal to the military imagery of army-building (an appeal which, curiously, does match up with recurring Gandhian imagery of a war for justice) given recognition of this sort, that arrest is more a matter of when rather than if, it is not at all obvious that overt and covert rescue really do differ in term of the readiness of activists to accept arrest as the price of their dissent. It is perhaps more accurate to say that open rescue has an association with regarding arrest as itself a useful political act. At least sometimes, open rescue can involve an invitation to arrest, an offering of oneself as a sacrifice. But it is not obvious that civil disobedients must act in such a way. It may better capture the outlook and practice of the leaders of civil disobedience movements (such as King and Gandhi) rather than the approach of ordinary participants who are more or less prepared for arrest but who do not character- istically invite it. (3) Reason-3 Civil disobedience is primarily a form of address, a form of communication which is, by its nature, a public act. What this leaves us with is precisely what we may draw from Rawls, i.e. a theory of communicative political practice—what I have referred to elsewhere as the 24 Foreman (1991, pp. 130–131) uses this as a way to distinguish between low-level eco-sabotage, i.e. ‘monkeywrenching’ and civil disobedience in the tradition of Gandhi, the Civil Rights Movement and the peace movement. According to Foreman, only civil disobedience requires that credit be taken for the action while monkeywrenching is simply more effective if practised covertly. 25 Mann (2009, pp. 16–19). 26 Newkirk (2000, p. 50). Animal Rescue as Civil Disobedience 291 123 ‘communication thesis’. 27 On such a view, civil disobedience is a way of saying something and, where the cause is just, it may be warranted when other, legally sanctioned and less disruptive, opportunities for communicating effectively and in a timely manner, have been cut off. 28 However, as a cautionary note about endorsing the communication thesis too readily, it may be pointed out that its provenance is somewhat ad hoc, and its justification is open to question. With regard to provenance, the thesis goes back to both Rawls and, with qualification, to Carl Cohen, but there is no explicit requirement for communication in the single most influential academic account of civil disobedience to have been set down prior to Cohen and Rawls, i.e. the Civil Rights Movement account advanced by Hugo Bedau in the early 1960s and referred to above. Nor is it consistently present in the writings of Thoreau, Tolstoy, Gandhi or King, although there are intermittent hints at something of this sort. The reason for this is simple. Cohen and Rawls encountered a movement that had to rely upon indirect means of protest because what it was protesting about (the Vietnam War) took place elsewhere. Justifying indirect action, such as the disruption of traffic, as something other than juvenile and irrelevant to the issue in question, required appeal to the communicative role of such protest. However, this always meant that the driver for this conception of civil disobedience was the modelling of indirect rather than direct forms of dissent whose communicative standing has always been at least ambiguous. What there is, by way of earlier precedent for the resulting conception of civil disobedience, is a commitment on the part of Thoreau to regard civil disobedience as conscientious action, a commitment on the part of Tolstoy to regard it as a conscientious act of love, and an extension of this view by Gandhi and King that turns civil disobedience into a loving appeal to the conscience of the political opponent. It is, however, a problematic extension because it does not obviously match up particularly well with the actual practice of either the US Civil Rights Movement or the movement for Indian independence. Nonetheless, the idea of a loving appeal provides us with a view of civil disobedience that arguably presupposes communication of a sort, even if it does not explicitly call upon the latter. However, it also (again, worryingly) requires us to regard civil disobedience as a special kind of spiritual practice rather than merely allowing us to do so in particular cases. As such it is a rather awkward precedent for those who wish to depart from Tolstoy, Gandhi and King by presenting a strictly secular theory of civil disobedience (and this is precisely what advocates of the communication thesis, from John Rawls through to Jürgen Habermas have striven to do). 29 However, if some stronger precedent for a restrictive, communicative, understanding of civil disobedience could be found, such a precedent alone still might not be enough to 27 For the communication thesis see Milligan (2013, pp. 18–21). 28 The temporal clause is included in order to allow for cases where a threatened harm will not be forestalled by the available opportunities for discourse. A similar point is made about direct action, in the environmental case, by Humphrey (2006). 29 Habermas (1985). For both Rawls and Habermas, while agents might appeal to religious principles in order to justify civil disobedience, such claims must permit translation into the shared language of what the latter refers to as ‘the public sphere’. For the significance of the latter in this context see Smith (2011). 292 T. Milligan 123 warrant our continuing to regard civil disobedience in this way. And to say this is to acknowledge that there never has been a single, stable and unchanging concept of civil disobedience, but rather a concept which has been modified over time. It should, however, be noted that such modification is entirely in line with a Gandhian attitude towards conceptual innovation. It is an important part of his understanding of what political theory does. 30 Some level of semantic drift/conceptual innovation also helps to explain the problematic nature of matching up any necessary and sufficient conditions account with historical exemplars. 31 With regard to the justification of particular reworkings of the concept, on a Rawlsian account it is the communicative standing of civil disobedience that allows us to understand why it has to be non-violent. Violence cuts across communication and so, insofar as the action is genuinely communicative it will also have to be non- violent. However, this move involves a false generalization and is, in any case redundant. It involves a false generalization because violence can be communica- tive, and communicative in more than the loose sense in which all actions may be said to communicate something. Violence often sends a message. (I say this only as a point about violence and not at all as a justification of it.) The move is, additionally, redundant because the centrality of non-violence to our understanding of civil disobedience does not need to be underpinned by appeal to something which is far more open to dispute. 32 In some respects, it actually obscures the centrality of non-violence by making it seem like a derivative feature. Challenging the Communication Thesis In the light of this third reason for requiring that civil disobedience must be public, those who wish to defend the possibility that covert rescue could be civil disobedience (even though it often, perhaps even always, fails to qualify) have two options: firstly, an argument may be made that some instances of covert rescue could be sufficiently communicative to qualify; and secondly, the communication thesis may itself be challenged. Both options have something going for them. It can, for example, be argued that covert rescue genuinely is communicative, albeit only up to a point. In the case of the rescue of lab animals, it does (deliberately) send a message to practitioners of experimentation that their actions are deemed indefensible by the rescuing agents (or whichever constituency they believe themselves to represent). And when it is accompanied by subsequent publicity it 30 Milligan (2014, p. 288) summarizes the attitude towards conceptual modification in Gandhi’s commentary on the Baghavad Gita. 31 The line between conceptual change and the development of a concept may be hard to draw. But all that I am seeking to presuppose by speaking of the latter rather than the former is an element of strong continuity between successive construals of ‘civil disobedience’. 32 This is not, however, to endorse an absolute exclusion of everything that might be construed as violence. Gandhi, in his commentary upon the Gita claims that breathing and thinking involve violence. When his political writings uphold non-violence it is not absolute non-violence that he has in mind (Gandhi 2011, p. 266, p. 309). Carl Cohen was, again, more cautious than Rawls about this matter and suggested that it was ‘arbitrary’ to entirely rule out violence of every sort in every context (Cohen 1971, pp. 22–36). Animal Rescue as Civil Disobedience 293 123 sends a message to the experimentation establishment as a whole that their most publicity-sensitive practices may be exposed to public view. Given this, what may be required for a comprehensive exclusion of civil disobedience claims is some stronger version of the communication thesis such that civil disobedience is not just action with a communicative dimension but is essentially or primarily commu- nicative action. One way to make this shift would be to say that the primary intention of the agents involved has to be the communication of a message. This would, admittedly, count against a good deal of covert rescue. While rescues are sometimes filmed, it would be odd for a rescue, in full flow, to be called off because a camera had ceased to function. No doubt it is hard to disentangle the multiple intentions of agents. There is ambiguity and indeterminacy in what any of us may be trying to accomplish at any given point in time. Even so, there does seem to be at least some sense in which the immediate and primary aim of covert rescue tends to be the rescue of the animals themselves. However, even in the face of such a strongly formulated version of the communication thesis it may still be pointed out that at least some rescues, and particularly some of the earliest ALF actions if not later actions, may well have been carried out with something close to a primarily communicative intent, as a signal that the ALF was alive and thriving. In spite of covertness, such rescues would still seem to qualify as communicative acts and hence would still be candidates for civil disobedience in spite of their covert dimensions. To absolutely guarantee their exclusion, recourse might have to be made to a simpliciter insistence upon public- ness on its own or in conjunction with an appeal to communication; or else there might be a return to the anthropocentric exclusion of all actions other than those which concern basic issues of inter-human justice; or, alternatively, an even more stringent and perhaps less attractive version of the communication thesis may be required. None of these look like particularly promising options. If the communication thesis is construed in a sufficiently open manner it may be unobjectionable but will not exclude covert rescue. If it is construed strictly, the second option, of challenging the thesis, may then be the best response. As part of a softening-up exercise prior to its rejection, it may be pointed out that, like the anthropocentric restriction of civil disobedience to actions that defend human liberties, it may simply exclude too much. Public actions that do not involve any form of identity concealment, but which are ways of frustrating, obstructing or preventing, will also be ruled out, unless they too are regarded as, simultaneously, ways of communicating (on a strong account, primarily forms of communication). Eco-actions such as the blockading of roads, the occupation of endangered woodland sites and instances of ‘locking-on’ by activists who chain themselves in situ in order to cause non-violent inconvenience, will all fail to qualify. We may, of course, attempt to play up their communicative dimension, but this could distort our understanding of activist intent. Nonetheless, these do look suspiciously like precisely the sorts of actions that we would ordinarily regard as civil disobedience unless we happen to regard the latter concept as out of date. What is, perhaps, curious here is that while many other features of the Rawlsian account have steadily been chipped away over time, the communication thesis has continued to be accepted with relatively few dissenting voices. The most notable of 294 T. Milligan 123 the latter has come from Jennifer Welchman. 33 In the light of the rise of the ecology and animal rights movements, and against the backdrop of anti-capitalist protests over debt and world trade, Welchman mounted a brief but frequently cited attack which was based around three claims: (a) the communication thesis was little more than an ad hoc response to vocal opponents of civil disobedience, a way of placating hostile critics rather than generalizing upon the experience of protesters; (b) it excludes, for no sufficiently good reason, at least one previously accepted paradigm instance of civil disobedience: the Underground Railroad in the antebellum South; and (c) it requires an arbitrary prioritization of indirect protest (which is essentially communicative) over instances of direct action. As a rider, Welchman conceded a level of consistency to Rawls that was absent from Cohen. While Rawls was comparatively open about the normative and revisionary nature of his account (i.e. its status as an account of what we ought to think of as civil disobedience), Cohen was far more cautious. He recognized, from the outset, and was uncomfortable with the fact that the communication thesis did create problems for the long-standing classification of slave rescue by Underground Railroad activists as civil disobedience. (Biographies of Harriet Tubman still use this classification as a way of drawing a connection between her activities and the Civil Rights Movement.) 34 Unwilling to entirely abandon this paradigm case, Cohen retained it as a marginal instance, thereby ruling out the stricter account of the communication thesis towards which Rawls inclined. But if this move were to be endorsed, it would be all but impossible to exclude every possible instance of covert animal rescue unless the (normally rejected) anthropocentric restriction is reinstated. 35 If the Underground Railroad was a marginal case of civil disobedience then some non-violent and suitably structured instances of covert animal rescue may also be instances of civil disobedience. More generally, while the Rawls/Cohen appeal to communication was, as Welchman accepted, a good way to make sense of indirect civil disobedience, it was and is far from obvious that our understanding of civil disobedience as a whole ought to be modelled upon the latter. Why not, for example, embrace a disjunctive account such that civil disobedience can be either a certain kind of communication or a certain kind of direct action in which communication plays (at most) a subordinate role? Such an account might at least have the merit of a good fit with all of the paradigm historical instances that are partly constitutive of our understanding of the concept. While CND and the Vietnam protests involved indirect action, the Civil Rights Movement primarily involved what King openly referred to as direct action (not lovingly addressed to the conscience of the opponent but aimed instead at embarrassing the Federal Government into enforcing its laws). Finally, the Indian independence movement involved both indirect protest (e.g. non-cooperation with the state educational system) as well as direct action (e.g. the violation of the 33 Welchman (2001). 34 Clinton (2005, p. 56). 35 The relevance of this example to the covert rescue of animals, need not be made contingent upon the quite different claim, associated with the ‘liberationist’ tradition of animal rights, that the standing of animals today is strongly analogous to that of slaves. For the latter, compare Francione (2008, pp. 46–53) with Tuan (1984) which stresses the more ambivalent position of animals as property. Animal Rescue as Civil Disobedience 295 123 restriction upon private individuals producing and selling salt). A disjunctive approach to the concept looks promising. Its attractiveness may lead us to wonder why the communication thesis, modelled as it was upon indirect dissent, ever became quite so embedded. But here we may reflect not only upon a narrative about the moment at which Rawls and Cohen were writing, but also upon the deliberative turn in political theory which was already gaining momentum in the 1970s. If democracy was not just about procedures, but about effective and informed communication, then why not regard civil disobedi- ence in much the same light? However, as it fits so well with such a respectable trend in political theory we may then wonder whether the price of sticking with the communication thesis in spite of its problematic features is particularly high? After all, every theory will have its problems. I will suggest that the price is too high because the retention of the thesis risks turning civil disobedience into an endangered concept. More specifically, it leaves civil disobedience vulnerable to what we may call the ‘argument from below’, i.e. the argument that civil disobedience is overly deferential to authority and aims to persuade political elites who stand in need of coercion rather than persuasion, and therefore activists ought to be in the direct action business rather than the civil disobedience business. Variant formulations of this argument have gained widespread currency among a variety of political activists, such as environmental activists (Dave Forman advanced it during his Earth First! days); animal rights activists (Paul Watson of the Sea Shepherds has appealed to version of it); and the activists involved in the Occupy Movement of 2011. 36 One of the reasons why such an abandonment (or at least partial abandonment) of the concept is problematic is that no other concept carries the moral authority of ‘civil disobedience’, and none is likely to do so for the foreseeable future. We may speak of ‘direct action’ (as Martin Luther King and the anarchist tradition both do) or of ‘radical disobedience’ (and similar concepts that have emerged among eco- activists). However, none of these concepts is so deeply embedded in traditions of dissent in which the manner of the protest is, from an ethical standpoint, exemplary in ways that call for special consideration. And this, rather than an attitude towards animal activism alone, is the driving consideration behind the present paper: the concept of civil disobedience is, at present, irreplaceable yet the ways in which the theory of civil disobedience has been shaped by presumptions about communication and overtness, drive it apart from actual instances of non-violent dissent whose goals may be varied and often concerned with the prevention rather than the publicizing of harms. What is then in danger of being lost is the ongoing relevance of a concept of protest that still has a great deal of work left to do. Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, dis- tribution, and reproduction in any medium, provided you give appropriate credit to the original 36 For reticence about advancing a claim of civil disobedience in relation to the Occupy Movement, see Harcourt (2011). For Paul Watson advancing the argument from below see Milligan (2013, pp. 27–28). For Dave Foreman advancing this position, see Foreman (1991, pp. 130–131). 296 T. Milligan 123 http://creativecommons.org/licenses/by/4.0/ author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. References Banksy, 2005. Wall and peace. London: Century. Bedau, Hugo A. 1961. On civil disobedience. The Journal of Philosophy 58 (21): 653–665. Bryan, Frank. 2004. Real democracy: The New England town hall meeting and how it works. Chicago, IL: Chicago University Press. Clinton, C. 2005. Harriet Tubman: The road to freedom. New York and Boston: Black Bay Books. Cohen, Carl. 1971. Civil disobedience: Conscience, tactics, and the law. New York, NY: Columbia University Press. Elsworth-Jones, Will. 2012. Banksy: The man behind the wall. London: Aurum Press. Foreman, Dave. 1991. Confessions of an eco-warrior. New York, NY: Crown Trade. Francione, Gary L. 2008. Animals as persons: Essays on the abolition of animal exploitation. New York, NY: Columbia University Press. Gandhi, Mohandas K. 2007. An autobiography: The story of my experiments with truth, Mahadev Desai, trans. London: Penguin. Gandhi, Mohandas K. 2011. The Bhagavad Gita according to Gandhi. New Delhi: Orient Publishing. Gandhi, Mohandas K. 1996. In Selected political writings ed. Denis Dalton. Indianapolis, IN: Hackett Publishing Company Inc Garner, Robert. 2013. A theory of justice for animals. Oxford: University Press. Habermas, Jürgen. 1985. Civil disobedience: Litmus test for the democratic constitutional state. Berkeley Journal of Sociology 30: 95–116. Hadley, John. 2009. Animal rights extremism and the terrorism question. Journal of Social Philosophy 40 (3): 363–378. Harcourt, Bernard. 2011. Occupy wall street’s ‘‘political disobedience,’’ New York Times online, 13 Nov 2011. http://opinionator.blogs.nytimes.com/2011/10/13/occupy-wall-streets-political-disobedience/ ?_r=0. Accessed 13 July 2015. Harman, Chris. 1979. The crisis of the European revolutionary left. International Socialism 2 (4): 49–87. Hawthorn, Mark. 2010. Striking at the roots: A practical guide to animal activism. Winchester and Washington: O-Books. Humphrey, Matthew. 2006. Democratic legitimacy, public justification and environmental direct action. Political Studies 54: 2. Jones, Jonathan. 2011. Occupy’s V for Vendetta protest mask is a symbol of festive citizenship. The Guardian 04 Nov 2011, http://www.guardian.co.uk/commentisfree/2011/nov/04/occupy-movement- guy-fawkes-mask. Accessed on 13 July 2015. Levinas, Emmanuel. 1985. Ethics and infinity: Conversations with Philippe Nemo. Trans. Richard A. Cohen. Pittsburgh, PA: Duquesne University Press. Mann, Keith. 2009. From dusk ‘til dawn: An insider’s view of the growth of the Animal Liberation Movement. Location: Voice of the Voiceless Communications. Marcus, Erik. 2005. Meat market: Animals, ethics, and money. Boston, MA: Brio. Mark, Patty. 2003. Opening doors and eyes to animal suffering. The Abolitionist interview with Patty Mark. The Abolitionist, 15. Martin, Michael. 1990. Ecosabotage and civil disobedience. Environmental Ethics 12 (4): 291–310. Milligan, Tony. 2016. The next democracy: The possibility of popular control. London: Rowman and Littlefield. Milligan, Tony. 2017. Gandhian Satyagraha and open animal rescue. In Ethical and political approaches towards nonhuman animal issues, ed. Gabriel Garmendia, and Andrew Woodhall. Harmondsworth: Palgrave Macmillan. Milligan, Tony. 2014. Civility and politicized love in Gandhi. Religions of South Asia 8 (3): 285–300. Milligan, 2013. Civil disobedience: Protest, justification and the law. London and New York: Bloomsbury. Murdoch, Iris. 1957. The sandcastle. London: Chatto and Windus. Naess, Arne. 1974. Gandhi and group conflict. Oslo: Universiteitsforlaget. Animal Rescue as Civil Disobedience 297 123 http://opinionator.blogs.nytimes.com/2011/10/13/occupy-wall-streets-political-disobedience/%3f_r%3d0 http://opinionator.blogs.nytimes.com/2011/10/13/occupy-wall-streets-political-disobedience/%3f_r%3d0 http://www.guardian.co.uk/commentisfree/2011/nov/04/occupy-movement-guy-fawkes-mask http://www.guardian.co.uk/commentisfree/2011/nov/04/occupy-movement-guy-fawkes-mask Nathanson, Bernard. 1989. Operation rescue: Domestic terrorism of legitimate civil rights protest? Hastings Centre Report 19: 31–32. Newkirk, Ingrid. 2000. Free the animals: The amazing true story of the Animal Liberation Front. New York, NY: Lantern. O’Sullivan, Siobhan. 2011. Animals, equality and democracy. Basingstoke: Palgrave Macmillan. Rawls, John. 1971. A theory of justice. Cambridge, MA: Harvard University Press. Rowlands, Mark. 1997. Contractarianism and animal rights. Journal of Applied Philosophy 14 (3): 235–247. Sarah, Van Gelder. 2011. This changes everything: Occupy wall street and the 99% movement. San Francisco, CA: Berrett Koehler. Smith, William. 2011. Civil disobedience and the public sphere. The Journal of Political Philosophy 19 (2): 145–166. Thompson, A. K. 2010. Black bloc. White Riot: AK Press. Thornton, P., R. Brander, R. Thomas, D. Rhodes, M. Schwarz, and E. Rees. 2010. The law of public order and protest. Oxford: Oxford University Press. Tuan, Yi-Fu. 1984. Dominance and affection. New Haven, CT: Yale University Press. Welchman, Jennifer. 2001. Is ecosabotage civil disobedience? Philosophy and Geography 4: 1. 298 T. Milligan 123 Animal Rescue as Civil Disobedience Abstract Animal Rescue Covert Action and the Animal Liberation Front Rethinking Civil Disobedience Reasons Why Civil Disobedience is not Supposed to be Covert Challenging the Communication Thesis Open Access References 
work_zc5dz55a5zhkdjcewybhxiamra	----	Deontic Justice and Organizational Neuroscience Deontic Justice and Organizational Neuroscience Russell S. Cropanzano1 • Sebastiano Massaro2 • William J. Becker3 Received: 25 June 2014 / Accepted: 28 January 2016 / Published online: 2 March 2016 � Springer Science+Business Media Dordrecht 2016 Abstract According to deontic justice theory, individuals often feel principled moral obligations to uphold norms of justice. That is, standards of justice can be valued for their own sake, even apart from serving self-interested goals. While a growing body of evidence in business ethics supports the notion of deontic justice, skepticism remains. This hesitation results, at least in part, from the absence of a coherent framework for explaining how individuals produce and experience deontic justice. To address this need, we argue that a compelling, yet still missing, step is to gain further understanding into the underlying neural and psychological mechanisms of deontic justice. Here, we advance a theoretical model that disentangles three key processes of deontic justice: The use of justice rules to assess events, cognitive empathy, and affective empathy. Together with reviewing neural systems supporting these processes, broader implications of our model for business ethics scholarship are discussed. Keywords Affect and cognition � Deonance � Deontic justice � Empathy � Organizational justice � Workplace fairness � Organizational neuroscience Abbreviations aCC Anterior cingulate cortex DMN Default Mode Network EEG Electroencephalography fMRI Functional Magnetic Resonance Imaging IFG Inferior frontal gyrus OFC Orbitofrontal cortex pCC Posterior cingulate cortex PET Positron Emission Tomography PFC Prefrontal cortex PMC Posteromedial cortex qEEG Quantitative electroencephalography rTPJ Right temporoparietal junction TMS Transcranial Magnetic Stimulation TPJ Temporoparietal junction vmPFC Ventromedial prefrontal cortex Organizational justice is important to workers. When they feel fairly treated, employees tend to report less stress and better health (Cropanzano and Wright 2011), as well as more positive attitudes toward their jobs (Cohen-Charash and Spector 2001). Employers also benefit through higher worker job performance (Colquitt et al. 2001), more organizational citizenship behaviors (Fassina et al. 2008), and lower turnover intentions (Aryee and Chay 2001). In this paper, we seek to describe the underlying psycholog- ical processes—and supporting neural systems—that employees use when evaluating whether an event was fair or unfair. In particular, we focus on deontic justice, the & Sebastiano Massaro sebastiano.massaro@wbs.ac.uk Russell S. Cropanzano russell.cropanzano@colorado.edu William J. Becker w.becker@tcu.edu 1 Leeds School of Business, University of Colorado at Boulder, Boulder, CO 80309, USA 2 Warwick Business School - Behavioural Science, University of Warwick, Coventry CV4 7AL, UK 3 Department of Management, Texas Christian University, TCU Box 298530, Ft. Worth, TX 76129, USA 123 J Bus Ethics (2017) 144:733–754 DOI 10.1007/s10551-016-3056-3 http://crossmark.crossref.org/dialog/?doi=10.1007/s10551-016-3056-3&amp;domain=pdf http://crossmark.crossref.org/dialog/?doi=10.1007/s10551-016-3056-3&amp;domain=pdf view that justice is of value for its own sake. Toward this end, we present and discuss a theoretical model that disentangles the psychological mechanisms involved in the formulation of these fairness judgments and review these processes through an analysis of relevant neural correlates. Overall, we argue that individuals evaluate fairness by applying normative criteria called justice rules (Cropanzano et al. 2015; Scott et al. 2008). As we shall see, these fairness judgments are moderated by both affective and cognitive processes. How- ever, people are most likely to make the effort to apply jus- tice rules, when they experience both cognitive empathy and affective empathy toward another person. To refine and extend our understanding of these complex mechanisms, we will review the principal brain regions involved in both justice rules and in these two types of empathic processes. In order to accomplish these objectives, we first examine the available research on organizational justice, paying particular interest to the various reasons why workers care about fairness. We then focus in more detail on deontic justice, which is the principal concern of this paper. Afterward, we discuss the three main components of our model—application of justice rules, cognitive empathy, and affective empathy. Throughout, we consider the implications of our model for research and practice. Organizational Justice While research strongly suggests that justice matters to employees, scholars have proposed multiple explanations of why this is so. There has been some degree of conver- gence on the idea that justice matters to employees for multiple reasons (Cropanzano et al. 2001); yet, tradition- ally, three main theoretical frameworks have been pro- posed: The instrumental approach, the relational approach, and the deontic approach (e.g., Colquitt and Greenberg 2001; Folger and Salvador 2008). Overview of the Three Motives for Justice The instrumental model, which is historically the oldest, maintains that individuals prefer justice because it provides them long-term control over valued outcomes (for discus- sions, see Greenberg 1990; Tyler 1997, 2006). As one might expect, empirical evidence supports this view: Employees are egocentrically biased to view decisions that favor them as more fair (Cropanzano and Moliner 2013) and their views on justice are positively related to outcome favorability (e.g., Ambrose et al. 1991). A subsequent view, the relational framework, refers to a set of theories—the group-value model, the relational model, and the group engagement model—that focus on and emphasize the relationship between the individual and his or her workgroup (Blader and Tyler 2015). Together, these three models posit that justice, and especially pro- cedural justice, is central because fair treatment signals that an individual is respected and regarded within a significant social group that he or she values (Lind and Tyler 1988). This concept is consistent with, and supported by, empir- ical tests within organizational settings (e.g., Tyler and Blader 2000; Tyler et al. 1997). While research strongly supports the existence of instrumental and relational concerns, these do not appear to be the only reasons why workers care about organizational justice. A third approach, the deontic model of justice (Folger and Glerum 2015; Folger and Salvador 2008), argues that employees often maintain ethical standards or moral principles (Blader and Tyler 2001), sometimes called ‘justice rules,’ that guide the moral treatment of others. As of result of these normative criteria, they adopt a moral duty (deon = duty) to uphold their principles (Folger 2001, 2011; Hannah et al. 2014). In this way, justice is valued for its own sake, not simply because of the personal benefits that it may bring to a person (Folger et al. 2005; for additional empirical evidence, see O’Reilly et al. 2016; Skarlicki and Rupp 2010; Skarlicki et al. 2008). While deonance does not seem to be the only justice motive (cf. Folger et al. 2013), it does appear to be a notable one. For example, reactions to justice are partially influenced by personality dispositions indicative of trait morality (Colquitt et al. 2006). Likewise, research on ‘al- truistic punishment’ (Fehr and Gächter 2002), shows that individuals will sacrifice economic benefits in order to punish someone who violates social norms (Fehr and Fishbacher 2004; Fehr and Gächter 2002; Fehr et al. 2002). Interestingly, the same act, even if it is equally hurtful, will be punished more harshly if it violates a group norm and less harshly if it does not (DaGloria and DeRidder 1977, 1979; DeRidder 1985). Research among management scholars is consistent with this notion (cf. O’Reilly and Aquino 2011). Turillo et al. (2002) found that individuals will punish an unjust cow- orker, even when the victim is a stranger (for similar findings, see the studies reported by O’Reilly et al. 2016). Likewise, managers who are high in moral identity are more likely to punish transgressors than managers low on this measure (Skarlicki and Rupp 2010), though this may depend somewhat on the dimension of moral identity under examination. Similarly, when people feel that they have been harmed by an immoral action, evidence suggests that they prefer a resolution outcome that validates their normative beliefs (Reb et al. 2006; for related findings, see Skarlicki et al. 2008). Evidence of this kind suggests that deontic justice provides a critical account of why employees care about justice: They do so, in part, because they possess moral 734 R. S. Cropanzano et al. 123 standards and duty to uphold them (Folger and Glerum 2015; Folger and Salvador 2008; Hannah et al. 2014). Despite evidence that organizational justice can be motivated by something other than self-interest, this notion has been met with some skepticism (e.g., Greenberg 2001; Colquitt and Greenberg 2001). In a sort of conceptual ‘path dependence,’ these concerns appear to be rooted in the history of ethics scholarships. Hatfield and colleagues (Hatfield et al. 1978, pp. 128–129) maintained that ‘the majority of scientists […] interpret apparent altruism in cost-benefit terms, assuming that individuals […] perform those acts that are rewarded […] and […] avoid those acts that are not. Either self-congratulation or external reward, then, must support apparently altruistic behavior.’ Like- wise, Gillespie and Greenberg (2005, p. 205) assert that ‘the only ultimate goal(s) of individuals [is/]are self-di- rected’ (italics added). On this view, the concern is not limited to justice. Rather, people appear to be incapable of motivated behavior that is not self-interested (for a review and critique, see Cropanzano et al. 2007). Deontic Justice and the Question of ‘How?’ A close look at the literature suggests that scholars have yet to fully investigate and explain the intrapersonal mecha- nisms responsible for deontic justice. Fortunately, scientists from several disciplines have begun to focus attention on the underpinnings of human justice. In particular, cognitive neuroscience has recently offered remarkable insights on the neural basis of moral behaviors (e.g., Greene et al. 2001; Moll et al. 2005); at the same time, business ethics has begun to explore the value of neuroscience methods and findings to advance theory on organizational justice (Beugré 2009; Dulebohn et al. 2009; Massaro and Becker 2015; Robertson et al. 2007; Salvador and Folger 2009). Despite such vibrant and compelling interest, relatively little is clearly known regarding the processes by which one’s brain can be ‘recruited’ for another person’s justice. We call this the ‘how?’ question—How can deontic justice be realized in an individual’s brain? And what are the related implications for business ethics? Deontic Justice and Organizational Neuroscience: An Overview We shed light on these matters by integrating a set of psy- chological processes, and supporting neural systems, into a unique theoreticalframework that aimsto advance our current understanding of deontic justice. In other words, we aim to elucidate core mechanisms by which a worker comes to care about the moral principles that have been applied (or violated) for another individual through the lens of organizational neuroscience (Beckeretal.2011).Thus,ourcontributionaims to go beyond an ordinary exploration of what we might learn individually from the dedicated organizational, neuroscience, or psychology literatures. Rather, we aim to cross-fertilize among these disciplines in order to create an integrated model of deontic justice for business ethics. In this paper, we explicate and defend a single proposi- tion: Deontic justice, and in particular the ability to take into account the ethical quality with which others are treated, is grounded on a set of three largely integrated processes: The use of justice rules to assess events, cognitive empathy, and affective empathy. We acknowledge that this is a bold proposition, not yet commonly held in the business disci- plines. For this reason, we devote considerable attention to supporting our foremost argument—that workers take jus- tice seriously even when they are not selfishly benefited—by introducing neuroscience evidence. As we shall see, our brain is a complex organ consisting of many structures working synchronously and simultaneously to produce thoughts, feelings, decisions, and actions, including the ability to morally relate to others. As such, there is not a single brain center for justice, rather, justice is a whole-brain affair that relies on the integration of cognitive and affective neural systems and psychological processes (Casebeer 2003; Tancredi 2005; Yoder and Decety 2014). Overview of the Present Model Our primary aim is to provide a much needed, but largely neglected, theoretical rationale for how a set of synergistic processes provide an explanatory account for deontic jus- tice. Our reasoning is substantiated by merging evidence from several literatures. The resulting theoretical model depicted in Fig. 1 underscores the conceptual challenges. This figure is only intended to provide a cursory sum- mary and guide to our model of deontic justice. We have not yet provided an account of specific neural systems supporting our model. Rather, here we describe how indi- viduals make justice judgments (Cropanzano et al. 2015). Notice that people are often motivated to make sense out of a salient but harmful event. Moreover, the degree of empathy frequently impacts how these events are evaluated (Scott et al. 2008). As mentioned above, a key insight of deontic justice theory is that an unfortunate or harmful event is evaluated with respect to some ‘normative criteria’ (Cugueró-Escofet and Fortin 2014, p. 2) or ‘justice rules’ (Hollensbe et al. 2008, p. 1099) or ‘moral intuitions’ (Greene and Haidt 2002, p. 517). When a transgressor’s behavior toward another violates these rules, the observer or witness believes that the victim has been treated unfairly (Cropanzano et al. 2015; Rupp and Paddock 2010). As we shall see, justice rules are emotionally weighted and they can be distinguished from simple social conventions, which Deontic Justice and Organizational Neuroscience 735 123 are instead situational and somewhat arbitrary (e.g., Sme- tana et al. 1993). Yet, a key challenge for deontic justice theory lies in explicating the extent to which a justice rule will be applied and the extent to which it will not. All events in business organizations are not necessarily evaluated with respect to moral principles (Folger and Cropanzano 1998, 2001). For example, it is not uncommon for people to ignore mistreatment received by others, especially when individ- uals are part of different social groups (Greene 2013). This allows for callous disregard in relation to ‘out group’ individuals (Hein et al. 2010). Thus, if businesspeople could increase their circle of regard, more people would receive fair treatment (cf., Clayton and Opotow 2003). By introducing neural systems associated with these psychological processes, we advance knowledge of how a worker’s disinterest in the needs of others may result from what we could call a ‘breakdown’ in his or her empathic system (i.e., the capacity to understand what another person is experiencing from within the other person’s frame of reference) (Greene 2013). Supported by this and other evidence, we argue that justice rules in the workplace are more likely to be applied when the third-party observer or witness has a sense of empathy for the victim (e.g., Blader and Tyler 2001; Patient and Skarlicki 2005). In particular, we suggest that two interrelated types of empathy are rel- evant: Cognitive empathy and affective empathy. Cognitive empathy involves knowing the contents of other people’s feelings through deliberate thought. That is, one must understand what others are thinking and feeling in order to know when they are distressed (for an overview on empathy, see e.g., Walter 2012). However, ‘knowing’ per se is insufficient. When a worker observes a coworker in dis- tress, he or she may experience affective empathy without any deliberate thought or intention. Affective empathy involves automatic sharing in the emotional experiences of others (e.g., Walter 2012). Cognitive and affective empathy reinforce one another (Zaki and Ochsner 2012). Closing Thought and Looking Ahead In the sections that follow we further unravel the model presented in Fig. 1. We begin with a review of the evidence related to justice rules in the next section. Subsequently, we turn our attention to the two forms of empathy, beginning with cognitive and moving later to affective. While we treat cognitive and affective empathy separately in order to facilitate our discussion of the brain regions reviewed, we emphasize that both these and the related psychological processes are highly interconnected. Recognizing and Applying Justice Rules Research on deontic justice suggests that individuals make their moral decisions by observing or becoming aware of a triggering event—e.g., a potential mistreatment by a work supervisor, and evaluating this event with respect to some justice rule. A ‘justice rule’ is a ‘self-based standard, or expectation, derived from individuals’ socialized or inter- nalized values, regarding the moral obligations of indi- viduals in a specific context’ (Lau and Wong 2009, p. 281). This rule is used as a sort of measuring device to evaluate the moral appropriateness of the event (Scott et al. 2008). Because this type of assessment is based on the use of moral principles, it has also been called ‘principlism’ (e.g., Batson 1999, p. 303; Blader and Tyler 2001, p. 235). These judgments are not ‘context free,’ and various elements of Fig. 1 Theoretical model of deontic justice. Notice the three critical elements: Application of justice rules, cognitive empathy, and affective empathy. Note also that empathy has both a moderating and a main effect 736 R. S. Cropanzano et al. 123 the decision environment can impact the evaluations (for empirical evidence, see Nicklin et al. 2011; for a review, see Cropanzano and Moliner 2013). While context effects are important, they are somewhat beyond the scope of the present article, which aims to understand the underlying intrapersonal processes of deontic justice. Historically, justice rules have been organized into three families (Cropanzano et al. 2015): Distributive justice, which pertains to the outcome allocation; procedural jus- tice, which relates to the decision-making process; and interactional justice, which concerns the interpersonal treatment received from another person. Some researchers have found it useful to further divide interactional justice into two sub-dimensions (e.g., Colquitt et al. 2001). In this approach, interpersonal justice relates to the dignity and respect that one receives, whereas informational justice pertains to keeping people informed, providing explana- tions, and so forth. Each of these types of justice has its own set of justice rules (cf. Colquitt and Rodell 2015). While research is still ongoing (e.g., Hollensbe et al. 2008), we consider it a useful taxonomy (Colquitt 2001) to understand what ‘justice rule’ means. According to this categorization, there are at least three just ways to dis- tribute outcomes. These are equity (to each according to contributions), equality (to each the same), and need (Deutsch 1975, 1985). Likewise, a just procedure should be bias-free, consistently applied, accurate, correctable, rep- resentative of all, and ethical (Leventhal 1980). Colquitt (2001) adds that interpersonally just treatment is polite, dignified, respectful, and contains no inappropriate remarks, while informationally just communication is candid, thorough, timely, and tailored to individual needs. While future research may yield additional standards, Colquitt’s (2001) work provides a good sense of what is intended by a ‘justice rule.’ Overall, within deontic justice theory, justice rules are essentially seen as a type of moral norm (Folger 2001, 2011; Folger and Salvador 2008). As with other moral norms, these do not depend on the opinion of an authority figure (i.e., tend not to change due to third- party norm enforcement), and their violations warrant punishment (Smetana 1981, 1984, 1985, 1989). Development of Moral Norms Social and developmental psychology research has offered important insights to further understand this concept by suggesting that human beings recognize and apply moral standards from a very early age. For instance, in a study conducted by Hamlin and Wynn (2011), toddlers watched a puppet show in which the characters behaved either helpfully or unhelpfully toward other puppets. Children, as young as 5 months, preferred the kindly puppets to the disobliging ones (for a review, see Bloom 2013; Hamlin et al. 2010). These childhood preferences reflect an ‘innate’ distinc- tion that persists into adulthood—that between moral norms and social conventions (for a discussion on innate- ness and morality, see Haidt and Joseph 2007; Suhler and Churchland 2011). A social convention is a rule of behavior that, while making community life potentially more efficient, is not seen as correct for its own sake (Nucci and Nucci 1982). To at least some degree, children as young as three or four can distinguish social conventions (e.g., eating with fingers, standing during nap-time) from moral transgressions (e.g., pushing, stealing, hitting), and by age five they are quite good at telling the two apart (Smetana et al. 1993). Moral Norms and Neuroscience We will now turn our attention to neuroscience evidence that elucidates how our brain applies moral norms. We begin with a focus on the prefrontal cortex (PFC) and review studies of moral decision-making that highlight its involvement in two different types of moral violations. We then cover additional brain regions, such as the insulae, which are involved in emotional responses and in the application of justice rules. The Trolley Problem, the Prefrontal Cortex, and Two Types of Moral Violations Greene et al. (2001) conducted a functional Magnetic Resonance Imaging (fMRI) study inspired by moral dilemmas that are often used in ethics research. One of the most remarkable dilemmas that influenced this research is the trolley problem (Thomson 1986). Usually, researchers present participants a scenario showing a runaway trolley with five people on it, which are tied and unable to move. If the trolley were to proceed on its path it would kill its occupants. The only way to save them is to activate a control that would switch the trolley’s path. When people are asked whether they are ought to press the button to save five people at the expense of one, most say yes. Yet, when people are posed with a different scenario their decisions are likely to be opposite. In this case, the participants are told that they are standing next to a stranger on a bridge obstructing the trolley’s path. The only way to save the five people is to push this stranger off the bridge causing his or her death. Although the ultimate result, from a rational perspective, is the same in both scenarios, people are less willing to save the five others by pushing the stranger. Research on the trolley problem suggests that business ethics should attend more closely to a distinction between two different types of moral breaches—personal and impersonal. According to Greene and Haidt (2002), vio- lations of moral norms are especially salient when the Deontic Justice and Organizational Neuroscience 737 123 misbehavior is personal. These are behaviors that do rel- atively serious harm to a specific individual and that do so through the direct agency of the transgressor. In contrast, impersonal violations lack the aforementioned criteria. Moreover, Greene and colleagues (Greene et al. 2001, 2004) showed that personal transgressions are processed in areas of the brain pertaining to emotions, while those that are impersonal are processed in brain regions that pertain more strongly to cognition. Specifically, brain regions associated to emotions, like medial frontal gyrus, posterior cingulate gyrus, and angular gyrus, were more activated in the personal condition rather than in impersonal and even non-moral scenarios; parietal lobes, among other regions associated to cognition, were instead significantly less active in the personal condition than in the other paradigms (Greene et al. 2001). Interestingly, Greene et al.’s (2001) findings closely parallel long standing observations by organizational jus- tice researchers that interpersonal justice violations tend to generate greater outrage than do other types of injustices (Folger and Cropanzano 1998; Skarlicki and Folger 2004). Individuals with strong moral identities are especially likely to retaliate when observing interpersonal injustice (Skarlicki and Rupp 2010; O’Reilly et al. 2016). Likewise, interpersonal injustice, as opposed to other types, is more strongly related to workplace deviance (Colquitt et al. 2001; Judge et al. 2006). Research based on the trolley problem suggests that the importance of interpersonal justice may be ‘hard wired’ into our brain functioning. This research (Greene et al. 2001) also revealed that reaction times were longer when participants judged per- sonal violations as morally appropriate, as compared to when subjects judged them to be wrong, suggesting a key role for ‘executive control’ brain regions. Thus, in a fol- low-up study, Greene et al. (2004) focused on brain activity in the subjects’ prefrontal cortex (PFC), while deliberating over similar scenarios. The PFC is the anterior part of the frontal lobes of the brain—an area crucial for integrative, executive, and goal-directed functions (Fuster 2001). Research has often focused on the subdivisions of the PFC, in particular the ventromedial or vmPFC (Damasio 1996), orbitofrontal (Rolls 1996), and dorsolateral (Goldman-Ra- kic 1987) (for a more extensive review, see Christoff and Gabrieli 2000). While these regions have a vast network of connections and intertwined functions, speaking generally, the dorsolateral PFC is more critical for cognitive control (e.g., attention), while the orbitofrontal and vmPFC are largely associated to emotional processes and affective decision-making (Damasio et al. 1990; Gray et al. 2002; Rolls and Grabenhorst 2008). In the trolley problem just described (Greene et al. 2001), researchers found increased ventromedial and de- creased dorsolateral PFC activity in response to personal (i.e., bridge scenario) as opposed to impersonal (i.e., switching the trolley’s path) moral choices; the difference between these two situations also related to the salience of the victim. Moreover, in Greene et al. (2004) the dorso- lateral PFC showed increased activity for difficult, as compared to easy personal dilemmas. Further, Luo et al. (2006) showed increased vmPFC activity in response to more critical moral transgressions compared to less sev- ere (see, Blair 2007). What is more, lesions to the PFC create impairments for these types of moral decisions, supporting its essential role in applying moral rules (Ciaramelli et al. 2007; Koenigs et al. 2007). Additional Brain Regions Involved and Justice Rules Moll et al. (2002) provided additional insights into the relationship between human moral rules and emotions. They asked subjects to read short statements and judge them as being either right or wrong. In this way Moll and his col- leagues forced participants to take a stand irrespectively of the content of the sentences. Some of the statements described either emotional situations provoking moral responses, others were emotionally negative scenarios with no moral substance, and others were non-emotional situa- tions. These researchers found that moral judgments asso- ciated with negative emotions prompted activation in the antero-medial orbitofrontal cortex (OFC)—whose activation correlates with subjective emotional experiences. In support of this finding, injury to this part of the OFC impairs emo- tional behavior (for a review, see Rolls and Grabenhorst 2008). Non-moral judgments associated with unpleasant emotions induced activation of the lateral OFC and the amygdalae. The amygdalae have traditionally been associ- ated with processing emotionally arousing stimuli and with sharing others’ emotions (Adolphs et al. 1994). In the study of Moll and colleagues, somewhat surprisingly, the amyg- dala did not show increased activation in the moral judgment condition. The researchers suggested that this is because the medial OFC ‘controls’ the amygdala’s activity (see also Baxter et al. 2000). Thus, the OFC could be critical for integrating our moral knowledge with emotions that rein- force moral actions. Another brain region particularly salient to ‘justice rules’ is the anterior part of the insulae. This region is highly engaged in our emotional life, in particular when we experience disgust (Krolak-Salmon et al. 2003) and when we observe other people feeling disgust (Wicker et al. 2003). This basic emotion, which seems to have benefited our ancestors by helping them avoid unhealthy experi- ences, might have been co-opted by evolution to serve a moral purpose (Haidt 2003, 2006). In fact, it is common for people to respond to certain moral violations, especially those involving a perception of impure contamination, with 738 R. S. Cropanzano et al. 123 a sense of disgust (e.g., Schnall et al. 2008, 2009; Skarlicki et al. 2013). Given such indication, one would expect involvement of the insulae when people make moral assessments on unfair events. Indeed, this seems to occur. Sanfey et al. (2003) offered support to this claim by employing the Ultimatum Game in an fMRI study. In this game, a proposer gets an amount of money by the researchers and suggests how to divide the sum with another player. The receiver chooses to either accept or reject the proposal. If the second player accepts, then the money is divided accord- ingly. Otherwise, neither party gets any money. According to a rational choice perspective (e.g., Tversky and Kahneman 1986), the second player should accept any offer given, since this would always provide more money than what they originally had; however, in practice, divisions seen as unfair are often rejected. In Sanfey and colleagues’ experiment (2003), those offers judged as unfair elicited activity both in participants’ brain ‘cognitive’ areas (e.g., the dorsolateral PFC), as well as in the ‘emotional’ areas, such as the anterior insulae (and in particular the right insula). Of interest here, this region showed higher activity on rejected unfair offers compared with fair offers, thereby suggesting, once again, a key role for emotional involvement in judgements of what is fair and what is not. Finally, neuroscience research focusing on empathy and on Theory of Mind has also investigated how people make judgments about others’ actions (see e.g., Van Overwalle and Baetens 2009). For one, Singer and colleagues (2006) investigated how brain empathic responses are modulated by the affective link between individuals. These research- ers measured brain activity of people observing confeder- ates receiving pain when the accomplices had participated in a previous fairness game. Singer et al. (2006) found that subjects showed activation in fronto-insular and anterior cingulate cortices toward fair players who were allegedly being hurt. However, these responses were significantly reduced when people observed an unfair confederate receiving pain. In contrast, for unfair accomplishes the participants showed an increased activation in brain areas associated to reward. This evidence resonates with the idea of altruistic punishment, which, as we shall see later in more detail, is consistent with our theoretical model of deontic justice. Conclusions and Research Needs Overall, the studies described above provide a good example, not only of how recent neuroscience research has investigated neural correlates of justice paradigms, but also of how these insights advance business ethics by revealing that neural systems involved in both emotional and cog- nitive processes are relevant in the appraisal of moral rules. Moreover, this evidence suggests that ethical behavior involves an alignment between cognition and affect. Interestingly, the observation that ethics involves the right thoughts for the right reasons has long been observed by virtue ethicists (e.g., Annas 2011). This suggests that affect should play a larger role in business ethics, an idea that is consistent with theories of deontic justice (Folger et al. 2005). Business ethicists should also take into account the implications of the trolley problem because there are dif- ferent patterns of neural activation sustaining two distinct types of moral breaches—personal and impersonal (Greene et al. 2001). This has implications for a number of ethical problems. For example, consider the problem of white collar crime. Though white collar crime is far more costly to society than so-called ‘street crime,’ citizens persist in viewing white collar offenses as less problematic (Frie- drichs 2010). In particular, the impersonal nature of white collar corruption may make it seem less troublesome than face-to-face misconduct. Subsequently, this could pose a challenge for ethical training and even law enforcement. Closing Thoughts on Justice Rules Organizational and psychological research suggests that justice rules are a type of moral norms: They are often deeply held universal standards, which emerge early in life (Smetana 1985, 1989). However, consideration of the experiments exploring the neural substrates of moral rules allows us to disentangle their meaning because it suggests that justice rules involve key brain regions that are relevant both to discriminating between personal and impersonal scenarios and to cognitive and affective experiences (Greene 2013). The latter evidence is particularly impor- tant for deontic justice theory for another reason relevant to the organizational life. Indeed, while justice rules can be seen as internalized standards for assessing the fairness of events, workers (and humans more generally) often fail to make use of them (Folger and Cropanzano 1998; Cropan- zano et al. 2015). It is important to understand why this is the case. As we shall see, we argue that this relationship is moderated by an individual’s empathy for others. When people feel empathy for others, they are more likely to treat them justly and respond to their unjust treatment by others (Blader and Tyler 2001; Hoffman 1994; Lerner and Goldberg 1999). If workers are not able to appreciate, internalize, and share others’ feelings, it becomes difficult to judge whether they are being treated justly and thereby to act accordingly. What is more, empathy relies on a dissociable cognitive and emotional neural system, which can moderate and also directly promote deontic justice. Deontic Justice and Organizational Neuroscience 739 123 Deontic Justice as an Empathic Process Empathy, as the term is used here, refers to the set of pro- cesses that allows a person to share the psychological experience, both thoughts and feelings, of another individual (Batson 1999; Hoffman 1994). A rich body of research suggests that, when individuals feel empathy for others, they become more altruistic and cooperative toward them (e.g., Batson 2006; Batson and Ahmad 2001). Hoffman (2000, p. 3) has this sort of evidence in mind when he remarks that empathy is ‘the spark of human concern for others, the glue that makes social life possible.’ Additional evidence sup- porting the role of empathy in human morality has been explored by social psychologists (Batson 2009; Eisenberg and Fabes 1990; Tyler et al. 1997; Wispé 1986), philoso- phers (Churchland 2011; D’Arms 1998), and natural scien- tists (Decety and Lamm 2006; de Waal 2008; Preston and de Waal 2002). Likewise, Aderman et al. (1974) found that individuals are less prone to blame victims for their own moral adversity when they empathize with them. While this work is impressive, research suggesting that empathy makes us behave more justly toward other people is even more relevant to business ethics and deontic justice theory. Patient and Skarlicki (2010) investigated the impact of empathy on justice judgments in the workplace, arguing that workers care more about justice when they share the other person’s emotions. In their first experiment, managers completed a role-playing scenario taking the perspective of someone who was downsizing an employee. Those who scored higher in empathy reported that they would behave more justly than did those who scored lower. In their second study with undergraduate participants, the authors also found that empathy induction increased the justice with which subjects behaved. Empathy: Some General Remarks In psychological research, the term empathy has been defined in various ways, some of which are not entirely consistent with one another (Batson 1995). Some scholars, for example, appear to treat empathy as a specific emo- tional state, which involves mindfulness of, and respon- siveness to, another individual’s concerns (cf., Bagozzi and Moore 1994; Batson et al. 1995). However, it is more common to view empathy as a ‘vicarious emotion,’ which is associated with particular types of motivated behavior (Batson et al. 1987, p. 19). For example, people who feel empathy are more likely to assist a distressed individual, even if they are provided with an opportunity to exit the situation (Batson 1995). Other definitions of empathy are somewhat more rational, referring to understanding another person’s thoughts and feelings, rather than the sharing of their affect (Cohen and Strayer 1996). These are important conceptual matters, but it is beyond our scope to thoroughly discuss all of empathy’s definitions here (for a comprehensive review, see Batson 2009). For the purposes of our model, and without gainsaying other approaches, we are primarily concerned with empathy as the sharing of other people’s feelings (Batson 1995), including the comprehension of their psychological con- tents (Cohen and Strayer 1996). In this way, we also incorporate the recognized distinction between cognitive empathy and affective empathy (e.g., Ang and Goh 2010; Hogan 1969). The former refers to understanding the contents of another person’s thinking and feeling (Pe- cukonis 1990). The latter refers to sharing the affective experiences of another individual (Hoffman 1994, 2000). Consistent with this distinction, the neuroscience liter- ature provides further evidence for disentangling these two types of empathy (e.g., Shamay-Tsoory 2011; Walter 2012; Zaki and Ochsner 2012). According to recent research with imaging and lesion studies (i.e., studies that enable the association of impaired brain areas to specific functions; Massaro 2015), there are two dissociable neural systems for empathy: One cognitive and the other emotional (Shamay-Tsoory et al. 2009). The two are highly related and both are important. A fully empathic experience involves (at least) components of affective sharing, cog- nitive self-awareness, and self-other distinction (Baron- Cohen and Wheelwright 2004; Blair 2005). Remarkably, business ethics has not generally made this distinction explicit. For example, references to Batson’s (2009) definition of empathy appear to be more closely associated with cognitive empathy; Patient and Skarlicki’s work (2010) instead investigates affective empathy. To address this important concern for deontic justice theory, here we refer to cognitive empathy as the deliberate psy- chological process of recognizing and understanding another person’s thoughts and feelings. On the other side, affective empathy captures the similarity of feelings between one person and another, the so-called ‘experience sharing,’ which is more automatic and non-reflective (Walter 2012; Zaki and Ochsner 2012). We argue here that both types of empathy are critical for deontic justice. Cognitive Empathy: Understanding the Victim’s Psychological Experience As discussed earlier, deontic justice hinges on the way a person has been disadvantaged due to a violation of a social norm (Folger and Cropanzano 1998, 2001). In many situ- ations, we gain such information through our evaluation of what the victim is thinking and feeling. Cognitive empathy provides the mechanism by which we evaluate another person’s psychological point of view (Frith and Singer 2008). Notice that the adjective ‘cognitive’ may be a bit 740 R. S. Cropanzano et al. 123 misleading here, since it refers to how the observer under- stands the contents of another individual’s mind and feel- ings, not the accuracy of that understanding. Accordingly, our representation of other persons’ cognitions and emotions allow us to make inferences regarding their reactions to events. Relative to deontic justice, if we witness another person who is angry or frustrated by unfair treatment, cog- nitive empathy provides our appraisal of their feelings and the appropriateness of those feelings. However, it does not extend to sharing those feelings: Cognitive empathy, per se, maintains a sort of emotional distance between the victim and the third-party observer (e.g., Walter 2012). As we shall show, current neuroscience research has begun to reveal key brain regions involved in cognitive empathy: the temporoparietal junction (TPJ), the posteromedial cortex (PMC), the prefrontal cortex (PFC), and the cingulate cortex. Next, we review evidence for each of these regions. Temporoparietal Junction (TPJ) The TPJ is that area of the brain where the parietal lobe meets the temporal lobe. Several studies indicate that the right TPJ (rTPJ) in particular is involved in our represen- tations of other people’s cognitions and meta-cognition (Decety and Lamm 2007; Saxe 2006) and that the responses in this area peak just at the time when someone’s thoughts are described (Saxe et al. 2009; Young et al. 2007). For instance, Saxe and Wexler (2005) asked research participants to consider their feelings when eval- uating two different types of information. First, they con- sidered socially relevant information, which was presented as a scenario involving another person. Second, they con- sidered a description of what that person ‘wanted’ or ‘be- lieved.’ Their results showed that the rTPJ response was low when subjects were reading descriptions of the social background and rose when the psychological state of the protagonist was described. Moreover, the response in the rTPJ was higher when the protagonist’s background and the psychological state were incongruent, as compared to when they were consistent (Saxe and Wexler 2005). While rTPJ activation seems to be aligned with the cognitive empathic idea that ‘people’s feelings have to be predicted from their own subjective desires’ (Terwogt and Rieffe 2003, p. 74), recent research indicates that fairness is also strongly related to activation of the rTPJ. Specifi- cally, the hemodynamic response (i.e., a parameter employed to measure brain activation in fMRI research) in rTPJ shows a differentiation between morally good and bad actions before such response arises in other regions, such as the dorsolateral PFC (Yoder and Decety 2014). This supports the overall insight that rTPJ likely plays an anticipatory role in the cognitive empathic processes involved in deontic justice. Posteromedial Cortex (PMC) Another relevant brain area involved in cognitive empathy is the posteromedial cortex. This is an architectonically discrete region, which has been often understudied because of its anatomical location (Cavanna and Trimble 2006). Interestingly, this complex area has been just recently identified as the most active brain region during the so- called ‘resting state’ (Cauda et al. 2010)—that state when brain activity is measured in the absence of a task or experimental stimuli (Mastrovito 2013). Positron Emission Tomography (PET) studies, which are able to couple functional analyses with metabolic ones (for a method- ological overview, see Massaro 2015), showed that PMC consumes about 40 % more glucose than the hemispheric mean, providing support for this view (Raichle et al. 2001). While the resting state typically represented a control condition in early fMRI experiments, this view changed drastically with the discovery of functionally relevant infor- mation from resting-state activity (Biswal et al. 1995). Specifically, the Default Mode Network (DMN), a network of regions active during resting state has been identified using an array of recording techniques (Shulman et al. 1997; Mazoyer et al. 2001; Raichle et al. 2001). The DMN includes areas of the PMC, the inferior parietal cortices, as well as the dorsal and ventral areas of the medial frontal cortex (Uddin et al. 2009). A core characteristic of the DMN is that it consistently exhibits increased activity at rest, and decreased activity during task performance. The reliability of this observation, together with those on the brain’s metabolism, suggest that deactivation may be a way for the brain to sustain self-ori- ented psychological processes (Fransson 2005). Of particular interest for our aims is the flexibility of the DMN. Indeed, the literature has revealed that tasks that activate the DMN share core processes, but differ across content and goals. For instance, Greene et al. (2001) observed that certain forms of moral judgment—the personal cognitive moral dilemmas—activate brain regions involved in the default network. Hence, deciphering moral dilemmas seems to be a situation where people cognitively empathize by a psychological understanding of events occurring to others (for related discussion, see Moll et al. 2005). The DMN as a whole likely plays an important role in forming a cognitive judgment of how fairly others are treated. Prefrontal Cortex (PFC) As discussed earlier, the prefrontal cortex is important for justice. Because it provides executive and goal-directed functions (Fuster 2001), this region is also be heavily involved in cognitive empathy (Shamay-Tsoory et al. 2003). Both the dorsolateral and ventromedial regions of the PFC have been related to morally just behavior (Carrington and Deontic Justice and Organizational Neuroscience 741 123 Bailey 2009; Moll et al. 2005). vmPFC is particularly rele- vant to empathic processes according to evidence from neuroscience experiments involving pathological subjects. Shamay-Tsoory and Aharon-Peretz (2007) studied individ- uals with lesions in the ventromedial PFC and found that the ability to cognitively represent other people’s emotions was impaired. Yet, brain damage did not have the same disrup- tive effects when an individual was thinking about another person’s cognitions. Speaking more generally, damage to the vmPFC tends to impair decision-making by disrupting emotional processing (Bechara et al. 1997, 2000). These neurological subjects cognitively understand the situations they face, but lose the ‘affective signal’ that helps healthy brains to make ‘good’ choices (Damasio et al. 1990). These findings suggest that the vmPFC mediates the process of affective, though not cognitive, empathy. Moreover, Greene et al. (2004) showed engagement of the dorsolateral PFC in moral cognitive control, and damage to the orbitofrontal PFC has been associated with misinterpretation of social situations and socially inappro- priate behavior (Rolls 1996), supporting the PFC’s over- arching empathic role in deontic justice evaluations. This feature of the PFC is supported further by a recent study investigating brain activity during empathy for social exclusion, which showed how individuals who have more empathy for others experiencing negative social treatment will make greater efforts to help and support the victims in these situations (Masten et al. 2011). Cingulate Cortex or Cingulum Another important region for cognitive empathy is the cingulate cortex. This area integrates inputs from different sources and influences activity in other brain regions by modulating motor, endocrine, and visceral responses (Bush et al. 2000). It is subdivided into three regions: anterior, posterior, and medial. While, the anterior cingulate cortex (aCC), a large region around the rostrum of the corpus callosum, is generally involved in emotional awareness (Devinsky et al. 1995), a recent meta-analysis of neu- roimaging research on empathy found that the left dorsal anterior mid-cingulate cortex is specifically pertinent to cognitive empathy (Fan et al. 2011). Similarly, the poste- rior cingulate cortex (pCC) appears to be engaged when individuals infer others’ feelings. For example, Maddock et al. (2003) found in an fMRI study that the pCC showed increased activation when research participants considered words (hence, understood) related to emotion. A Complex Outlook While the regions described above are ‘key players’ in cognitive empathy, other brain areas appear to be also relevant. For instance, the superior temporal sulcus has shown activation peaks in tasks evaluating our under- standing of the intentions and goals of other people’s actions (Lee et al. 2014; Pelphrey et al. 2004). People are concerned with intentionality attributions (Lyons et al. 2006) when assigning moral blame to others. Individuals are less likely to be held responsible for a potential injus- tice if their alleged transgression was made with no intention to harm (Hewitt 1975; Karniol 1978; Miller and McCann 1979; Umphress et al. Umphress et al. 2013). Thus, it is important to note that other brain areas and psychological processes may be crucial for our overall deontic justice experience, including outcome prediction, associative learning, and flexible evaluation of contingen- cies (Moll and de Oliveira-Souza 2007; Rolls 1996). However, while the interaction of these complex cognitive abilities with justice is surely a novel and fascinating area of research, evidence to support a more multifaceted framework in this respect is just beginning to appear (Moll and de Oliveira-Souza 2007), thus inevitably falling beyond the scope of the current work. Affective Empathy: Sharing the Victim’s Psychological Experience While cognitive empathy refers to the understanding of other people’s responses to injustice, this does not neces- sarily mean that we internalize these emotions in our moral behavior. In order to truly partake in another person’s plight, it is therefore essential for us to share their feelings. Affective or emotional empathy promotes such response (Davis 1994) and is often believed to be a largely involun- tary, vicarious response to affective cues from another per- son (Decety and Jackson 2006; Hoffman 1994). As such, it is an affective state, elicited by the emotive non-verbal cues of the other(s), oriented toward such person(s), and similar (or isomorphic) to his or her state (Walter 2012). 1 Moreover, it includes some sort of meta-knowledge about both the self and the other. As explained below, four brain areas appear to be particularly relevant to affective empathy in relation to deontic justice: the anterior insulae, the amygdalae, the somatosensory cortices, and the inferior frontal gyrus (IFG). 1 Interestingly, scholars have debated whether or not affective empathy involves emotional contagion. Some researchers have argued that emotional contagion is a distinct construct because it indicates the lack of awareness as to whether the source of the experienced state is the self or another person (e.g., Fan et al. 2011; Walter 2012). Other scholars have instead supported the view that affective empathy holds characteristics similar to those of emotional contagion (e.g., Zaki and Ochsner 2012). Such debates may result from the different definitions that researchers give to empathy and its forms (Batson 2009). We cannot resolve this issue here, but it illustrates the sort of interesting research questions still remaining. 742 R. S. Cropanzano et al. 123 Anterior Insula In each brain hemisphere, the insula is located at the interface of the frontal, temporal, and parietal lobes; it is densely con- nected with several regions including the dorsolateral PFC, amygdala, and cingulate cortex (Augustine 1996; Mesulam and Mufson 1982). Neuroscience research has widely shown thatseveralemotions—includinganger,disgust,fear,sadness, and also happiness, a positive emotion (Phan et al. 2002)—are associated with insular cortex’s activation, supporting the understanding that this region, and in particular the right insula, has a key role in affective empathy (Bernhardt and Singer 2012; Fan et al. 2011; Singer 2006). Moreover, connectivity data support the idea that the insula plays an important integrative role in affect: Patterns of connectivity in resting-state functional neuroimaging studies suggest a key function of its anterior part in com- bining interoceptive and affective information (Critchley et al. 2004). These models propose that the anterior insula enables a subjective affective experience and global ‘feeling state’ (Cauda et al. 2011; Craig 2009). This is consistent with studies showing its role in sensitivity to moral justice, such as social exclusions (Masten et al. 2011; Robertson et al. 2007). Amygdala In each brain hemisphere, the amygdala is located near the temporal pole and has traditionally been associated with fear, among other emotions (Fanselow and Gale 2003; Phillips and LeDoux 1992). Fear, in our case, is relevant in relation to normative conformity because the fear of retri- bution can promote compliance toward others (Pfaff 2007). Adolphs et al. (1996) found that damage to the amygdala made it more difficult for individuals to correctly feel fear and other negative emotions, like anger and sadness. Inter- estingly, however, the ability to feel happiness was not harmed (Adolphs et al. 1994). As Gazzaniga (2008) points out, if damage to the amygdala makes us less able to feel an emotion, then we are correspondingly less able to share it with others. Indeed, the amygdala has also been found to be central in fairness and emotionally weighted moral decision- making (Blair 2007; Greene and Haidt 2002; Moll et al. 2002). Along these lines, there is increasing evidence from both neuroimaging and genetics studies that impairment of the amygdala may be involved in the etiology of antisocial (and even criminal) behavior (DeLisi et al. 2009). Somatosensory Cortices The human somatosensory cortices may also play an important role in our emotionally shared responses to deontic justice. These insights emerge from studies on pain. Indeed, our ability to experience another’s pain is a key characteristic of affective empathy (Singer et al. 2004). Singer et al. (2004) assessed brain activity while research subjects underwent a painful stimulus, and compared this activity to that elicited when the same subjects observed their beloved partners (who were present during the experiment) receiving similar pain stimuli. While the first-hand experience of pain resulted in the activation of the subjects’ somatosensory cortices, these regions showed no significant activation in response to the observation of the partners experiencing pain. The authors concluded that the aCC and bilateral anterior insula were affective mediators of empathy for pain, while the somatosensory cortices were not. In another fMRI study (Morrison et al. 2004), participants were presented images of hands and feet in painful or neutral situations and asked to envisage the level of pain that these conditions would pro- duce. Once again, no signal change was detected in the somatosensory cortices, while there were significant activa- tions in the cingulate cortex and in the insula. However, at odds with these findings is a Transcranial Magnetic Stimulation (TMS) study in which individuals observed needles penetrating hands or feet of a human model and in objects. Avenanti et al. (2005) reported that the observation of pain does involve sensorimotor representa- tion. Specifically, the results showed empathic inference about the sensory qualities of others’ pain together with an embodiment in the research subjects’ motor systems. This evidence is noteworthy because the TMS method is more sensitive to detection of subtle changes in cortical activity than fMRI techniques (Decety and Lamm 2006). Thus, this evidence suggests that observing another individual in a painful situation may yield ‘empathic responses’ in the somatosensory cortices. Moreover, overlaps between first- hand experiences of pain and perception of pain in others seem to reveal some degree of correspondence between self and others’ experiences (Decety and Lamm 2006). There is more to add to this. The brain network involved in the perception of pain in others is also implicated in disgust and in situations involving risk. These are occur- rences that spark visceral and somatosensory responses. Similarly, activation in the somatosensory cortex is not necessarily exclusive to the emotional appraisal of pain. Hence, it seems likely that neural responses in these areas are coupled with broader behavioral mechanisms, such as aversion and retraction (e.g., Decety and Lamm 2006; Singer and Lamm 2009), which are also typical of deontic justice. In support of this view, aversive representations similar to those observed in anticipation of, and response to, negative outcomes trigger activation in the somatosen- sory cortices (Bechara and Damasio 2005; Knutson and Greer 2008; Shenhav and Greene 2010). Overall, these cortical areas may play an important role in our sharing of others’ feelings following a ‘painful’ and unfair situation. Deontic Justice and Organizational Neuroscience 743 123 Inferior Frontal Gyrus (IFG) Finally, one other brain region deserves our attention when discussing affective empathy. Neuroimaging studies of empathizing with people suffering serious threat or harm (Nummenmaa et al. 2008) reported the involvement of the Inferior Frontal Gyrus (IFG) in affective empathy (Sha- may-Tsoory 2011). In particular, research has shown evi- dence for the existence of mirror neurons in the human IFG (Kilner et al. 2009). Mirror neurons are a class of visuomotor neurons, originally discovered in an area of the monkey premotor cortex, that are electrophysiologically responsive when an individual observes another individual performing a particular action and then does a similar behavior (for a thorough review, see Rizzolatti and Craighero 2004). Despite the intense debate on this topic (for a primer, see Keysers 2009), a growing number of neuroimaging studies show that the IFG has activation peaks when a person sees another person experiencing an emotion. This supports the idea that this area could also be a principal neural site for empathy. Specifically, IGF activation has been reported in negative emotional responses and decision-making in conditions of justice dilemmas (Majdandžić et al. 2012), suggesting its relevance for deontic justice. Cognitive and Affective Empathy Working Together In normal healthy adults, cognitive and affective empathy, whose main supporting neural systems are summarized in Table 1, tend to work in concert (Pessoa 2014). Both are engaged in moral behavior (Zaki and Ochsner 2012), with each playing important and complimentary roles. In short, cognitive empathy allows us to appreciate other people’s minds, including both their thoughts and their emotions, while affective empathy allows us to share their emotional experiences, softening the boundaries that separate individuals (Pfaff 2007). We can illustrate this idea further by considering evidence from clinical and neuropsychological research. Koeings et al. (2007), for instance, found that individuals with a damage to their vmPFC, which prevented the normal processing of affec- tive information, tended to make moral decisions in a ‘cold’ logical way, which these authors term ‘utilitarian.’ Similarly, psychopaths have reasonably sound abilities to make cognitive inferences (Brüne and Brüne-Cohrs 2006), but appear to be emotionally disinterested in the suffering of others (Baron-Cohen 2011). Thus, in psy- chopathy only affective empathy is impaired, while cog- nitive empathy is maintained and possibly heightened (Blair 2005; Shamay-Tsoory et al. 2010). Autistic patients instead seem to have deficiencies in both their cognitive and affective empathy (Baron-Cohen and Wheelwright 2004). Notice that the moral comportment is impaired in both psychopathy and autism, though the resulting patterns of behavior are different for each condition. In any case, moral thinking can be impeded if either type of empathy is diminished (Moll et al. 2005). This suggests that the two types of empathy help people to behave justly. This is important for deontic justice in organizations because a wide variety of organizational contexts (culture, training, leadership, etc.) can influence the manifestation of each type of empathy. This said, when making fairness judgments regarding others, cognitive and affective empathy work closely in a ‘bi-directional fashion’ (see Fig. 1). Neuroscience research has suggested that a dual-path—‘top-down’ and ‘bottom-up’—system may be relevant in processing human morality and empathy (Table 2) (Walter 2012; Zhan et al. 2013). This remark resonates with other neuroscience and psychological perspectives on dual processing systems. For instance, much debate has focused on how emotions arise (Lazarus 1984; Zajonc 1984) via low-level processes—that provide quick, bottom-up affective considerations of stimuli—or via high-level—top-down cognitive appraisal processes that draw upon stored knowledge. Speaking generally, dual process mechanisms are believed to be recurrent ways of processing information in the brain. Similarly, cognitive empathy may act as the ‘high road’ or ‘top-down’ processing, while affective empathy as ‘low road’ or ‘bottom-up’ processing of deontic justice. The ‘low road’ path essentially means that some basic features of an individual, representing strong affective states or suffering conditions (i.e., facial expressions, body move- ments, or obvious features like injuries), trigger an auto- matic response. Conversely, the ‘high road’ to empathy suggests that it also relies on higher cognitive mechanisms, like reasoning based on logical and contextual relations and situations, that cascade in a top-down process. Specifically, we argue that cognitive and affective empathy are reinforcing mechanisms for each other, which can differently elicit evaluations of justice rules. Thus, the ‘high road’ processing implies that workers are consciously evaluating the mistreatment of others. By doing so, they Table 1 Summary of main neural systems involved in cognitive and affective empathy Cognitive empathy Affective empathy Temporoparietal junction Anterior insulae Posteromedial cortex Amygdalae Prefrontal cortex Somatosensory cortices Cingulate cortex Inferior frontal gyrus 744 R. S. Cropanzano et al. 123 will consequently engage affective empathy. On the other side, when empathy takes the ‘low road’ employees may first experience affective empathy. This intuitive and automatic process can then powerfully engage their cog- nitive empathy. Conclusions and Research Needs While the two forms of empathy are experimentally dis- sociable, we shall stress that they normally work in concert. Moreover, neuroscience insights are gradually yielding toward a merged perspective holding that both top-down and bottom-up processes are involved and important for our information processing (for affective processing, see Ochsner et al. 2009; for justice processing, see Moll et al. 2005). In this way, knowledge of sequences of social actions or events would be ‘filtered’ in brain regions like the PFC and the cingulate cortex, in turn enabling emer- gence of just behavior (Moll et al. 2005; Zhan et al. 2013). Folger and Salvador (2008) and Folger and Glerum (2015) have argued that researchers have paid insufficient atten- tion to the role of intuitive, bottom-up ethical judgments. These researchers appear to be making an important argument that is consistent with the neuroscience evidence we have reviewed. This would seem to be an important direction for future business ethics research. In addition, the distinction between cognitive and affective empathy is important for deontic justice research in organizations because a wide variety of organizational contexts (culture, training, leadership, etc.) can influence the manifestation of each type of empathy. Future research can draw on insights and methods from neuroscience to investigate the unique effects further. Empathy’s Direct Effects on Behavior: Too Much of a Good Thing? We have thus far emphasized empathy as a complex moderator of the relationship between an event and the application of a justice rule. As we have discussed, empathizing with others tends to make workers behave more fairly (Patient and Skarlicki 2005). However, there is more to the matter. When others are in distress, we are also more likely to render empathic altruistic assistance (Batson 1995, 2006; Masten et al. 2011). We have represented this effect in Fig. 1 by the inclusion of a direct link from empathy to fairness. We explore this possibility below. Empathy and the Potential for Preferential Treatment To better illustrate this case let us consider the work of Batson et al. (1995). In their initial experiment, these scholars had undergraduate research participants work with two other students. In the critical conditions, research subjects were read a note from one of the other individuals in the experiment. The note came from a ‘Participant C.’ The experimenter instructed them to either ‘imagine how this [Participant C] student feels,’ whereas others were told to ‘take an objective perspective.’ The former instructors promoted empathy, while the latter did not. The subject was then given the opportunity to assign the other stu- dents—either Participant C or Participant B—to a task with positive consequences or else to a task with negative consequences. When empathy had been induced for Par- ticipant C, then the subject was more likely to assign that individual to the positive task, at the expense of leaving the negative task for the other student. These findings were replicated in a second experiment. Thus, empathy directly caused decision-makers to show unfair preferential treat- ment. That is, while empathy (both cognitive and affective) will often motivate us to behave altruistically (Batson 1995), it will not motivate us to treat everyone consistently. Empathy-Induced Preferential Treatment and Justice Thus far, our account of empathy-induced preferential treatment would suggest that employees who feel empathic concern for another person would ignore issues of justice. However, that does not seem to be the case—at least not from the perspective of the individual enacting the behavior. In an important contribution, Blader and Roth- man (2014) present four studies which replicate the rela- tionship between empathic concern and preferential treatment. However, these authors offer two additional insights. Table 2 Possible role of the PFC in the ‘top-down’ and ‘bottom-up’ processing of justice and empathy Process Role of PFC Top- down The frontal cortex ‘represents’ moral goals that control the information flow in other cortical and subcortical areas when an automatic response needs to be overcome (see e.g., Miller and Cohen 2001) Bottom- up vmPFC stores links of subcortical ‘somatic markers’ and action knowledge in posterior brain areas. This would explain problems with decision-making after brain lesions (see e.g., Bechara et al. 2000) Deontic Justice and Organizational Neuroscience 745 123 First, they found that if a decision-maker was held accountable by a third party, then he or she would not tend to show preferential behavior when empathy was high. Second, Blader and Rothman (2014) measured fairness perceptions. They found that fairness mediated the effects of empathy. That is, high-empathy participants believe that they made fair choices, both when they exhibited prefer- ential treatment (in the low accountability conditions) and when they did not (in the high accountability conditions). These findings are very important to our model (see also Blader and Tyler 2001). Individuals who empathize believe that they are behaving fairly, even when they show pref- erential treatment. Or, one might say, even when they violate rules of even-handed justice (e.g., consistent treat- ment, equity). While this could be a significant problem for organizations, Blader and Rothman (2014) offer a solution. The disinterested perspective of an informed third party may serve to counterbalance the biased viewpoint of an empathic individual. Organizations may wish to design interventions that include active third parties that monitor decisions where their might be conflicts of interest created by empathy (Bazerman and Tenbrunsel 2011). Discussion Historically, most theories of justice in business ethics have argued that workers want to be fairly treated because it benefits them, either through long-term instrumental con- trol or else through enhancing their social status (Cropan- zano et al. 2003; Folger and Butz 2004). In contrast to these earlier models, deontic justice emphasizes the notion of ‘oughts’ (Folger and Glerum 2015). Other people should be treated in a way that they deserve, in accordance with standards of fairness (Folger 2001, 2011). While evidence favoring a deontic model of justice has been steadily increasing (e.g., Colquitt et al. 2006; Folger et al. 2013; Reb et al. 2006; Turillo et al. 2002), skepticism remains (e.g., Colquitt and Greenberg 2001; Gillespie and Green- berg 2005; Greenberg 2001). We argue that this skepticism could be better addressed, at least in part, by articulating a model of deontic justice, supported by current neuroscience evidence, to explain how a worker can transcend self-interest by being con- cerned with the plight and needs of others (Folger and Salvador 2008). To address this theoretical need we have focused on three interrelated psychological processes and reviewed supporting neural systems: • Justice rules People sometimes interpret events in ethical terms. As such, individuals distinguish between practical, but somewhat arbitrary social conventions (e.g., drive on the left side of the road in the United Kingdom, but the right side in the United States), and moral principles (i.e., Thou shalt not kill!). When compared to social conventions, justice rules (a) tend not to be based on social authority, and (b) their violations warrant punishment (Smetana 1985, 1989). • Cognitive empathy This implies that individuals under- stand and recognize the contents of others’ minds. That is, they shall ‘cognitively comprehend’ what others are thinking and feeling when victims of injustice. • Affective empathy ‘Knowing’ is not the same as ‘caring.’ Individuals also emotionally connect and share the affective state of potential victims of injustice. When they experience the pain that other people feel due to unfair treatment, it becomes more substantive and important to them. According to our model, we argue that deontic thinking involves using a justice rule to make sense out of an unfortunate situation for others. If the rule was violated, then the worker is apt to conclude that unfairness occurred. This rule is most likely to be applied when one experiences cognitive and affective empathy toward the victim. Though, at times, when empathy is strong, an individual may bypass the justice rule and preferentially intervene to help a colleague. Theoretical and Practical Implications In this paper we have outlined a novel theoretical model for business ethics suggesting that deontic justice—our con- cern with other people’s just treatment—arises from a set of psychological processes which, to speak loosely, are ‘hard wired’ into our brains (Tancredi 2005). This also suggests that justice—or its absence—could impact employees on a more fundamental level than is often rec- ognized. As alluded to earlier, workers who feel that they have been unjustly treated experience poorer health (Cropanzano and Wright 2011) and are likely to seek revenge even when doing so is personally costly (Fehr and Gächter 2000). This is not surprising, given the robust processing and salience of fairness-related information. A related insight for deontic justice theory is that, while human beings are concerned with their self-interest, they are also concerned with their moral principles (Fol- ger 2001, 2011). The research evidence we have reviewed here supports these contentions. Justice, as well as ethics more generally, is a central concern in human existence (Cropanzano et al. 2007). For this reason, justice matters beyond particular individuals. Third parties often care about how others are treated even when they are not directly impacted (Skarlicki and Kulik 2005). Given this, the pernicious effects of injustice are likely to be spread rapidly through an organization, as some employees 746 R. S. Cropanzano et al. 123 become displeased with the treatment and experiences of their coworkers (Skarlicki et al. 2015). Indeed, justice in its deontic form appears to be relevant beyond focal employee-manager interactions: It may push employees to exhibit negative behaviors and attitudes toward the organization if they witness their peers encountering moral adversity (Skarlicki et al. 1998). Hence, proactive organizations should account for deontic justice as a part of the organization’s overall culture, rather than through a piecemeal series of one-on-one interventions (Monin et al. 2013). To achieve this goal, organizations could begin by designing management systems that conform to justice rules (Fortin and Fellenz 2008), such as providing voice and respectful interpersonal treatment (Cugueró-Escofet and Rosanas 2013). In this way, valuable behaviors, such as organizational citizenship or whistleblowing will be more likely to occur (Umphress et al. 2010). As explained throughout, incorporating neuroscience evidence into accounts of organizational justice strongly suggests that ethical decisions are often influenced by intu- ition and affect, as well as by moral reasoning (e.g., Greene 2013). This observation has a somewhat different emphasis than most traditional accounts of business ethics, which focus on moral reasoning as opposed to more intuitive and affective processes (cf. Salvador and Folger 2009). The present model suggests that these two views of business ethics should be re-balanced, because incorporating an organizational neuroscience perspective reveals that implicit empathic processes play a significant role in shaping the observed behaviors in response to the unfair treatment of others (Becker et al. 2011). For example, Masten et al. (2011) showed that witnessing social mistreatment of others required both forms of empathy to produce action. What is more, the present model explains that empathy should be considered as a dual construct rather than a single concept, showing relevance of our model, not just for ethical think- ing, but also to organizational research at large. Previous research has sometimes considered empathy as either one type (e.g., affective sharing) or another (e.g., cognitive understanding). Supported by neuroscience research, we maintain that this ‘either/or’ approach should be replaced with ‘this and that.’ That is, there are two types of empathy and both are important. Thus, from a practical perspective, our conceptualiza- tion may explain why training and other interventions to influence organizational justice, which are often based on rational ‘cold’ approaches, sometimes produce disap- pointing results (Ludwig and Longenecker 1993). Among other possibilities, our present model suggests that ethical conduct at work could be enhanced by training people in empathy (Pecukonis 1990). For instance, among health care professionals, there have been promising findings with these types of programs (e.g., LaMonica et al. 1976; Riess et al. 2012), and we would recommend that they be con- sidered more broadly. It also reinforces the value of com- passionate organizational culture (Barsade and O’Neill 2014; Karakas and Sarigollu 2013). Along these lines, neuroscience research itself provides practical information on how deontic justice can be ‘ma- nipulated’ in our brain. For one, Knoch et al. (2006) employed Transcranial Magnetic Stimulation (TMS), a non-invasive method used to inhibit small regions of the brain by low-frequency stimulation (O’Shea and Walsh 2007) while subjects were playing the Ultimatum Game. They found that one third of the participants whose right dorsolateral PFC was inhibited, accepted all the offers, even those clearly unfair. Similarly, the ‘manipulation’ of socio-moral behavior has been explored with neuro-phar- macological approaches, like those involving intranasal administration of oxytocin (Kosfeld et al. 2005). Oxytocin- treated subjects increased trust while performing a trust game (i.e., they assigned more money to the trustees) if compared to the control group. While the application of these approaches has not yet been employed in the work- place, their potential use will necessarily require a priori and shared ethical guidelines ensuring real benefits for workers. Finally, we readily recognize that each of the different neuroscience methods we have mentioned in our paper will hold specific informative power in future testing of our model. For one, if neuro-pharmacological approaches may promote empathy and fairness, fMRI will be able to further inform on the neural substrates activated during justice- related experimental tasks or games. Yet, we hope that the cross-disciplinary nature of our framework will not only promote novel investigations on the highlighted brain regions of interest, but will also encourage the integration of this neuroscience information with more traditional business research methods as a means to comprehensively advance future research on deontic justice. Limitations and Further Research Avenues We should remark that in this work we have sought to advance current theory on deontic justice by proposing an interdisciplinary framework, rather than suggesting replacement of existing accounts of organizational justice exclusively with neuroscience research. Indeed, despite the promises of neuroscience to advance organizational justice research, we must point out a number of related limitations and cautions. Neuroscience research in these areas is still in its relative infancy (Zhan et al. 2013). As such, business ethics scholars need to be wary of placing too much weight on any single study or on a unique methodological approach. Several methodological avenues will likely contribute to advance the understanding of the neural Deontic Justice and Organizational Neuroscience 747 123 substrates and psychological processes involved in deontic justice. For instance, Electroencephalography (EEG) has the potential to add ecological validity to deontic justice research. For one, Stikic et al. (2013) have already assessed engagement and leadership at both the individual and team levels in a social responsibility scenario. Other research has also shown that EEG investigations can inform decision-making strategies (Jacobs et al. 2006) and help to disentangle affective and cognitive processes (Knyazev and Slobodskaya 2003; Pfurtscheller and Da Silva 1999). Moreover, coherence analysis—a measure of the degree to which EEG signals at two distinct scalp locations are linearly related to one another—is often associated with studies on individual traits (Harmon-Jones et al. 2010), thus suggesting promising avenues to appre- ciate individual differences in deontic justice. Overall, the employment of interdisciplinary approaches will provide a viable opportunity for researchers to move the field forward. In parallel, we also recommend that organizational neuroscience should attempt to offer further meta-analytical evidence and ensure reproducibility of existing findings. Only then will nuanced theoretical business propositions and ecologically comprehensive paradigms match a multidisciplinary effort to further refine theoretical frameworks, such as the one presented here. In concluding, our model suggests that there are at least two broad paradigms for future research. The first of these concerns issues regarding individual differences. It is a point of everyday experience to recognize that some people care more about morality than others (Shao et al. 2008). Our review suggests that these differences can be reflected in neural differences among people (Baron-Cohen 2011; Kiehl 2006). Moreover, as deontic justice is heavily mod- erated by both cognitive and affective constructs, individ- uals’ impairments in any link of this chain will reduce deontic justice in predictable ways. However, neuroscience evidence suggests that situational context and conditions are also important. For example, the cognitive empathy system may ‘fail’ due to strong out-group attributions (Haney et al. 1973), the framing of an ethical problem (Bazerman and Tenbrunsel 2011), or the type of violation (Greene et al. 2001). Future theoretical and empirical extensions of our model shall explicitly take these cues into account. In this regard, our present framework will serve as a helpful opening roadmap. Finally, while future research may yield novel findings in this area, we suggest that organizations should always attend closely to the work environment, designing it so that organizational justice, as a whole, is not inadvertently restrained by structural or procedural flaws. In this regard, our model might also help inform future interventions. For example, as much of the information that influences ethical behavior is also processed outside of workers’ cognitive awareness (i.e., affective empathy), organizations should build cues into the environment that reinforce empathy while avoiding signals that unfair behavior is accept- able (Bazerman and Tenbrunsel 2011). Conclusions Our moral lapses (Batson 2006; Batson et al. 1997) and self-deceptions (Batson et al. 1999) notwithstanding, deontic justice suggests that justice is important for its own sake, even when it does not directly serve our self-interest. This appears to involve at least three psychological mechanisms: Cognitive empathy, affective empathy, and our ability to evaluate and apply moral rules. As seen, these processes are associated with neural systems working together to form and direct an internalized sense of deontic justice. References Aderman, D., Brehm, S. S., & Katz, L. B. (1974). Empathic observation of an innocent victim: The just world revisited. Journal of Personality and Social Psychology, 29, 342–347. Adolphs, R., Damasio, H., Tranel, D., & Damasio, A. R. (1996). Cortical systems for the recognition of emotion in facial expressions. Journal of Neuroscience, 16, 7678–7687. Adolphs, R., Tranel, D., Damasio, H., & Damasio, A. R. (1994). Impaired recognition of emotion in facial expressions following bilateral damage to the human amygdala. Nature, 372, 669–672. Ambrose, M. L., Harland, L. K., & Kulik, C. T. (1991). Influence of social comparisons on perceptions of organizational fairness. Journal of Applied Psychology, 76, 239–246. Ang, R. P., & Goh, D. H. (2010). Cyberbullying among adolescents: The role of affective and cognitive empathy, and gender. Child Psychiatry and Human Development, 41, 387–397. Annas, J. (2011). Intelligent virtue. Oxford: Oxford University Press. Aryee, S., & Chay, Y. W. (2001). Workplace justice, citizenship behavior, and turnover intentions in a union context: Examining the mediating role of perceived union support and union instrumentality. Journal of Applied Psychology, 86, 154–160. Augustine, J. R. (1996). Circuitry and functional aspects of the insular lobe in primates including humans. Brain Research Reviews, 22, 229–244. Avenanti, A., Bueti, D., Galati, G., & Aglioti, S. M. (2005). Transcranial magnetic stimulation highlights the sensorimotor side of empathy for pain. Nature Neuroscience, 8, 955–960. Bagozzi, R. P., & Moore, D. J. (1994). Public service advertisements: Emotions and empathy guide prosocial behavior. Journal of Marketing, 58, 56–70. Baron-Cohen, S. (2011). The science of evil: On empathy and the origins of cruelty. New York: Basic Books. Baron-Cohen, S., & Wheelwright, S. (2004). The empathy quotient: an investigation of adults with Asperger syndrome or high functioning autism, and normal sex differences. Journal of Autism and Developmental Disorders, 34, 163–175. Barsade, S. G., & O’Neill, O. A. (2014). What’s love got to do with it? A longitudinal study of the culture of companionate love and employee and client outcomes in the longterm care setting. Administrative Science Quarterly, 59, 551–598. 748 R. S. Cropanzano et al. 123 Batson, C. D. (1995). Pro-social motivation: Why do we help others? In A. Tesser (Ed.), Advanced social psychology (pp. 332–381). Boston: McGraw-Hill. Batson, C. D. (1999). Altruism and pro-social behavior. In D. T. Gilbert, S. Fiske, & G. Lindzey (Eds.), The handbook of social psychology (4th ed., Vol. 2, pp. 282–316). New York: McGraw- Hill. Batson, C. D. (2006). ‘‘Not all self-interest after all’’: Economics of empathy-induced altruism. In D. De Cremer, M. Zeelenberg, & J. K. Murnighan (Eds.), Social psychology and economics (pp. 281–299). Mahwah, NJ: Erlbaum. Batson, C. D. (2009). These things called empathy: Eight related but distinct phenomena. In J. Decety & I. William (Eds.), The social neuroscience of empathy (pp. 3–15). Cambridge, MA: MIT Press. Batson, C. D., & Ahmad, N. (2001). Empathy-induced altruism in a prisoner’s dilemma II: What if the target of empathy has defected? European Journal of Social Psychology, 31, 25–36. Batson, C. D., Batson, J. G., Todd, R. M., Brummett, B. H., Shaw, L. L., & Aldeguer, C. M. R. (1995a). Empathy and the collective good: Caring for one of the others in a social dilemma. Journal of Personality and Social Psychology, 68, 619–631. Batson, C. D., Fultz, J., & Schoenrade, P. A. (1987). Distress and empathy: Two qualitatively distinct vicarious emotions with different motivational consequences. Journal of Personality, 55, 19–39. Batson, C. D., Klein, T. R., Highberger, K., & Shaw, L. L. (1995b). Immorality from empathy-induced altruism: When compassion and justice conflict. Journal of Personality and Social Psychol- ogy, 68, 1042–1054. Batson, C. D., Kobrynowicy, D., Dinnerstein, J. L., Kampf, H. C., & Wilson, A. D. (1997). In a very different voice: Unmasking moral hypocrisy. Journal of Personality and Social Psychology, 72, 1335–1348. Batson, C. D., Tompson, E. R., Seuferling, G., Whitney, E., & Strongman, J. A. (1999). Moral hypocrisy: Appealing moral to oneself without being so. Journal of Personality and Social Psychology, 77, 525–536. Baxter, M. G., Parker, A., Lindner, C. C., Izquierdo, A. D., & Murray, E. A. (2000). Control of response selection by reinforcer value requires interaction of amygdala and orbital prefrontal cor- tex. Journal of Neuroscience, 20, 4311–4319. Bazerman, M. H., & Tenbrunsel, A. E. (2011). Blind spots: Why we fail to do what’s right and what to do about it. Princeton, NJ: Princeton University Press. Bechara, A., & Damasio, A. R. (2005). The somatic marker hypothesis: A neural theory of economic decision. Games and Economic Behavior, 52, 336–372. Bechara, A., Damasio, H., Tranel, D., & Damasio, A. R. (1997). Deciding advantageously before knowing the advantageous strategy. Science, 275, 1293–1295. Bechara, A., Tranel, D., & Damasio, H. (2000). Characterization of the decision-making deficit of patients with ventromedial prefrontal cortex lesions. Brain, 123, 2189–2202. Becker, W. J., Cropanzano, R., & Sanfey, A. G. (2011). Organiza- tional Neuroscience: Taking Organizational Theory Inside the Neural Black Box. Journal of Management, 37, 933–961. Bernhardt, B. C., & Singer, T. (2012). The neural basis of empathy. Annual Review of Neuroscience, 35, 1–23. Beugré, C. D. (2009). Exploring the neural basis of fairness: A model of neuro-organizational justice. Organizational Behavior and Human Decision Processes, 110, 129–139. Biswal, B., Zerrin Yetkin, F., Haughton, V. M., & Hyde, J. S. (1995). Functional connectivity in the motor cortex of resting human brain using echo-planar MRI. Magnetic Resonance in Medicine, 34, 537–541. Blader, S. L., & Rothman, N. B. (2014). Paving the road to preferential treatment with good intentions: Empathy, account- ability, and fairness. Journal of Experimental Social Psychology, 50, 65–81. Blader, S. L., & Tyler, T. R. (2001). Justice and empathy: What motivates people to help others? In M. Ross & D. T. Miller (Eds.), The justice motive in everyday life (pp. 226–250). New York: Cambridge University Press. Blader, S. L., & Tyler, T. R. (2015). Relational models of procedural justice. In R. S. Cropanzano & M. Ambrose (Eds.), The Oxford handbook of justice in work organizations (pp. 351–370). Oxford: Oxford University Press. Blair, R. J. R. (2005). Responding to the emotions of others: Dissociating forms of empathy through the study of typical and psychiatric populations. Consciousness and Cognition, 14, 698–718. Blair, R. J. R. (2007). The amygdala and ventromedial prefrontal cortex in morality and psychopathy. Trends in Cognitive Sciences, 11, 387–392. Bloom, P. (2013). Just babies: The origin of good and evil. New York: Crowne Publishing. Brüne, M., & Brüne-Cohrs, U. (2006). Theory of mind—evolution, ontogeny, brain mechanisms and psychopathology. Neuro- science and Biobehavioral Reviews, 30, 437–455. Bush, G., Luu, P., & Posner, M. I. (2000). Cognitive and emotional influences in anterior cingulate cortex. Trends in Cognitive Sciences, 4, 215–222. Carrington, S. J., & Bailey, A. J. (2009). Are there theory of mind regions in the brain? A review of the neuroimaging literature. Human Brain Mapping, 30, 2313–2335. Casebeer, W. D. (2003). Moral cognition and its neural constituents. Nature Reviews Neuroscience, 4, 840–847. Cauda, F., D’Agata, F., Sacco, K., Duca, S., Geminiani, G., & Vercelli, A. (2011). Functional connectivity of the insula in the resting brain. Neuroimage, 55, 8–23. Cauda, F., Geminiani, G., D’Agata, F., Sacco, K., Duca, S., Bagshaw, A. P., & Cavanna, A. E. (2010). Functional connectivity of the posteromedial cortex. PLoS ONE, 5, e13107. Cavanna, A. E., & Trimble, M. R. (2006). The precuneus: a review of its functional anatomy and behavioural correlates. Brain, 129, 564–583. Christoff, K., & Gabrieli, J. D. (2000). The frontopolar cortex and human cognition: Evidence for a rostrocaudal hierarchical organization within the human prefrontal cortex. Psychobiology, 28, 168–186. Churchland, P. S. (2011). Braintrust: What neuroscience tells us about morality. Princeton, NJ: Princeton University Press. Ciaramelli, E., Muccioli, M., Làdavas, E., & di Pellegrino, G. (2007). Selective deficit in personal moral judgment following damage to ventromedial prefrontal cortex. Social Cognitive & Affective Neuroscience, 9, 84–92. Clayton, S., & Opotow, S. (2003). Justice and identity: Changing perspectives on what is fair. Personality and Social Psychology Review, 7, 298–310. Cohen, D., & Strayer, J. (1996). Empathy in conduct-disordered and comparison youth. Developmental Psychology, 32, 988–998. Cohen-Charash, Y., & Spector, P. E. (2001). The role of justice in organizations: A meta-analysis. Organizational Behavior and Human Decision Processes, 86, 278–321. Colquitt, J. A. (2001). On the dimensionality of organizational justice: A construct validation of a measure. Journal of Applied Psychology, 86, 386–400. Colquitt, J. A., Conlon, D. E., Wesson, M. J., Porter, C. O., & Ng, K. Y. (2001). Justice at the millennium: A meta-analytic review of 25 years of organizational justice research. Journal of Applied Psychology, 86, 425–445. Deontic Justice and Organizational Neuroscience 749 123 Colquitt, J. A., & Greenberg, J. (2001). Doing justice to organiza- tional justice: Forming and applying fairness judgments. In S. Gilliland, D. Steiner, & D. Skarlicki (Eds.), Theoretical and cultural perspectives on organizational justice (pp. 217–242). Greenwich, CT: JAI. Colquitt, J. A., & Rodell, J. B. (2015). Measuring justice and fairness. In R. Cropanzano & M. A. Ambrose (Eds.), Oxford handbook of justice in work organizations (pp. 187–202). Oxford: Oxford University Press. Colquitt, J. A., Scott, B. A., Judge, T. A., & Shaw, J. C. (2006). Justice and personality: Using integrative theories to derive moderators of justice effects. Organizational Behavior and Human Decision Processes, 100, 110–127. Craig, A. D. (2009). How do you feel—now? The anterior insula and human awareness. Nature Reviews Neuroscience, 10, 59–70. Critchley, H. D., Wiens, S., Rotshtein, P., Öhman, A., & Dolan, R. J. (2004). Neural systems supporting interoceptive awareness. Nature Neuroscience, 7, 189–195. Cropanzano, R., Byrne, Z. S., Bobocel, D. R., & Rupp, D. R. (2001). Moral virtues, fairness heuristics, social entities, and other denizens of organizational justice. Journal of Vocational Behavior, 58, 164–209. Cropanzano, R., Fortin, M., & Kirk, J. (2015). How do we know when we are treated fairly? Justice rules and fairness judgments. In J. R. B. Halbeslesben, A. Wheeler, & M. R. Buckley (Eds.), Research in personnel and human resources management (Vol. 33, pp. 279–350). Amsterdam: Elsevier. Cropanzano, R., Goldman, B., & Folger, R. (2003). Deontic justice: The role of moral principles in workplace fairness. Journal of Organizational Behavior, 24, 1019–1024. Cropanzano, R., & Moliner, C. (2013). Hazards of justice: Egocentric bias, moral judgments, and revenge-seeking. In S. M. Elias (Ed.), Deviant and criminal behavior in the workplace (pp. 155–177). New York: New York University Press. Cropanzano, R., Stein, J., & Goldman, B. M. (2007). Self-interest. In E. H. Kessler & J. R. Bailey (Eds.), Handbook of organizational and managerial wisdom (pp. 181–221). Los Angeles, CA: Sage Publications. Cropanzano, R., & Wright, T. A. (2011). The impact of organizational justice on occupational health. In J. C. Quick & L. E. Tetrick (Eds.), Handbook of occupational health psychology (pp. 205–219). Washington, DC: American Psychological Association. Cugueró-Escofet, N., & Fortin, M. (2014). One justice or two? A model of reconciliation of normative justice theories and empirical research on organizational justice. Journal of Business Ethics, 124, 435–451. Cugueró-Escofet, N., & Rosanas, J. M. (2013). The just design and use of management control systems as requirements for goal congruence. Management Accounting Review, 24, 23–40. DaGloria, J., & DeRidder, R. (1977). Aggression in dyadic interac- tion. European Journal of Social Psychology, 7, 189–219. DaGloria, J., & DeRidder, R. (1979). Sex differences in aggression: Are current notions misleading? European Journal of Social Psychology, 9, 49–66. Damasio, A. R. (1996). The somatic marker hypothesis and the possible functions of the prefrontal cortex. Philosophical Transactions of the Royal Society of London. Series B, 351, 1413–1420. Damasio, A. R., Tranel, D., & Damasio, H. (1990). Individuals with sociopathic behavior caused by frontal damage fail to respond autonomically to social stimuli. Behavioral Brain Research, 41, 81–94. D’Arms, J. (1998). Empathy and evaluative inquiry. Chicago-Kent Law Review, 74, 4. Davis, M. H. (1994). Empathy: A social psychological approach. Boulder, CO: Westview Press. De Waal, F. B. (2008). Putting the altruism back into altruism: The evolution of empathy. Annual Review of Psychology, 59, 279–300. Decety, J., & Jackson, P. L. (2006). A social-neuroscience perspective on empathy. Current Directions in Psychological Science, 15, 54–58. Decety, J., & Lamm, C. (2006). Human empathy through the lens of social neuroscience. The Scientific World Journal, 6, 1146–1163. Decety, J., & Lamm, C. (2007). The role of the right temporoparietal junction in social interaction: how low-level computational processes contribute to meta-cognition. The Neuroscientist, 13, 580–593. DeLisi, M., Umphress, Z. R., & Vaughn, M. G. (2009). The criminology of the amygdala. Criminal Justice and Behavior, 36, 1241–1252. DeRidder, R. (1985). Normative considerations in the labeling of harmful behavior as aggressive. Journal of Social Psychology, 125, 659–666. Deutsch, M. (1975). Equity, equality, and need: What determines which value will be used as the basis of distributive justice? Journal of Social Issues, 31, 137–149. Deutsch, M. (1985). Distributive justice. New Haven, CT: Yale University Press. Devinsky, O., Morrell, M. J., & Vogt, B. A. (1995). Contributions of anterior cingulate cortex to behaviour. Brain, 18, 279–306. Dulebohn, J. H., Conlon, D. E., Sarinopoulos, I., Davison, R. B., & McNamara, G. (2009). The biological bases of unfairness: Neuroimaging evidence for the distinctiveness of procedural and distributive justice. Organizational Behavior and Human Deci- sion Processes, 110, 140–151. Eisenberg, N., & Fabes, R. A. (1990). Empathy: Conceptualization, measurement, and relation to prosocial behavior. Motivation and Emotion, 14, 131–149. Fan, Y., Duncan, N. W., de Greck, M., & Northoff, G. (2011). Is there a core neural network in empathy? An fMRI based quantitative meta-analysis. Neuroscience and Biobehavioral Reviews, 35, 903–911. Fanselow, M. S., & Gale, G. D. (2003). The amygdala, fear, and memory. Annals of the New York Academy of Sciences, 985, 125–134. Fassina, N. E., Jones, D. A., & Uggerslev, K. L. (2008). Meta-analytic tests of relationships between organizational justice and citizen- ship behavior: Testing agent-system and shared-variance mod- els. Journal of Organizational Behavior, 29, 805–828. Fehr, E., & Fishbacher, U. (2004). Third party punishment and social norms. Evolution and Human Behavior, 25, 63–87. Fehr, E., Fishbacher, U., & Gächter, S. (2002). Strong reciprocity, human cooperation and the enforcement of social norms. Human Nature, 13, 1–25. Fehr, E., & Gächter, S. (2000). Cooperation and punishment in public goods experiments. American Economic Review, 90, 980–994. Fehr, E., & Gächter, S. (2002). Altruistic punishment in humans. Nature, 415, 137–140. Folger, R. (2001). Fairness as deonance. In S. W. Gilliland, D. D. Steiner, & D. P. Skarlicki (Eds.), Research in social issues in management: Theoretical and cultural perspectives on organi- zational justice (Vol. 1, pp. 3–31). Charlotte: Information Age. Folger, R. (2011). Deonanace: Behavioral ethics and moral obliga- tion. In D. DeCremer & A. E. Tenbrunsel (Eds.), Series in organization and management: Behavioral business ethics: shaping an emerging field (pp. 123–142). New York: Routledge. Folger, R., & Butz, R. (2004). Relational models, ‘‘deonance’’, and moral antipathy toward the powerfully unjust. In N. Haslam (Ed.), Relational models theory: A contemporary overview (pp. 217–242). Mahwah, NJ: Lawrence Erlbaum. Folger, R., & Cropanzano, R. (1998). Organizational justice and human resource management. Beverly Hills, CA: Sage. 750 R. S. Cropanzano et al. 123 Folger, R., & Cropanzano, R. (2001). Fairness theory: Justice as accountability. In J. Greenberg & R. Cropanzano (Eds.), Advances in organizational justice (pp. 1–55). Stanford, CA: Stanford University Press. Folger, R., Cropanzano, R., & Goldman, B. (2005). Justice, account- ability, and moral sentiment: The deontic response to ‘‘foul play’’ at work. In J. Greenberg & J. Colquitt (Eds.), Handbook of organizational justice (pp. 215–245). Mahwah, NJ: Erlbaum. Folger, R., Ganegoda, D. B., Rice, D. B., Taylor, R., & Wo, D. X. (2013). Bounded autonomy and behavioral ethics: Deonance and reactance as competing motives. Human Relations, 66, 905–924. Folger, R., & Glerum, D. R. (2015). Justice and deonance: ‘‘You ought to be fair’’. In R. Cropanzano & M. A. Ambrose (Eds.), Oxford handbook of justice in work organizations (pp. 331–350). Oxford: Oxford University Press. Folger, R., & Salvador, R. (2008). Is management theory too ‘‘self- ish’’? Journal of Management, 34, 1127–1151. Fortin, M., & Fellenz, M. R. (2008). Hypocrisies of fairness: Towards a more reflexive ethical base in organizational justice research and practice. Journal of Business Ethics, 78, 415–433. Fransson, P. (2005). Spontaneous low-frequency BOLD signal fluctuations: an fMRI investigation of the resting-state default mode of brain function hypothesis. Human Brain Mapping, 26, 15–29. Friedrichs, D. O. (2010). Trusted criminals: White collar crime in contemporary society. Belmont, CA: Wadsworth. Frith, C. D., & Singer, T. (2008). The role of social cognition in decision making. Philosophical Transactions of the Royal Society B: Biological Sciences, 363, 3875–3886. Fuster, J. M. (2001). The prefrontal cortex—An update: Time is of the essence. Neuron, 30, 319–333. Gazzaniga, M. S. (2008). Human: The science behind what makes us unique. New York: Ecco. Gillespie, J. Z., & Greenberg, J. (2005). Are the goals of organiza- tional justice self-interested? In J. Greenberg & J. A. Colquitt (Eds.), Handbook of organizational justice (pp. 179–213). Mahwah, NJ: Lawrence Erlbaum. Goldman-Rakic, P. S. (1987). Circuitry of primate prefrontal cortex and regulation of behavior by representational memory. In F. Plum &V. B. Mountcastle (Eds.), Handbook of physiology: Section 1. The nervous system: Vol. 5. Higher functions of the brain (pp. 373–417). Bethesda, MD: American Physiological Society. Gray, J. R., Braver, T. S., & Raichle, M. E. (2002). Integration of emotion and cognition in the lateral prefrontal cortex. Proceed- ings of the National Academy of Sciences, 99, 4115–4120. Greenberg, J. (1990). Organizational justice: Yesterday, today, and tomorrow. Journal of Management, 16, 399–432. Greenberg, J. (2001). Setting the justice agenda: Seven unanswered questions about ‘‘what, why, and how.’’. Journal of Vocational Behavior, 58, 210–219. Greene, J. D. (2013). Moral tribes: Emotion, reason, and the gap between us and them. New York: Penguin. Greene, J. D., & Haidt, J. (2002). How (and where) does moral judgment work? Trends in Cognitive Science, 6, 517–523. Greene, J. D., Nystrom, L. E., Engell, A. D., Darley, J. M., & Cohen, J. D. (2004). The neural bases of cognitive conflict and control in moral judgment. Neuron, 44, 389–400. Greene, J. D., Sommerville, R. B., Nystrom, L. E., Darley, J. M., & Cohen, J. D. (2001). An fMRI investigation of emotional engagement in moral judgment. Science, 293, 2105–2108. Haidt, J. (2003). The moral emotions. In R. J. Davidson, K. R. Scherer, & H. H. Goldsmith (Eds.), Handbook of affective sciences (pp. 852–870). Oxford: Oxford University Press. Haidt, J. (2006). The happiness hypothesis: Finding modern trust in ancient wisdom. New York: Basic Books. Haidt, J., & Joseph, C. (2007). The moral mind: How five sets of innate intuitions guide the development of many culture-specific virtues, and perhaps even modules. In P. Carruthers, S. Lau- rence, & S. Stich (Eds.), The innate mind (Vol. 3, pp. 367–392). New York: Oxford University Press. Hamlin, J. K., & Wynn, K. (2011). Five- and 9-month olds prefer pro- social to antisocial others. Cognitive Development, 26, 30–39. Hamlin, J. K., Wynn, K., & Bloom, P. (2010). 3-month olds show a negativity bias in social evaluation. Developmental Science, 13, 923–939. Haney, C., Banks, W. C., & Zimbardo, P. G. (1973). Study of prisoners and guards in a simulated prison. Naval Research Reviews, 9, 1–17. Hannah, S. T., Jennings, P. L., Bluhm, D., Peng, A. C., & Schaubroeck, J. M. (2014). Duty orientation: Theoretical devel- opment and preliminary construct testing. Organizational Behavior and Human Decision Processes, 123, 220–238. Harmon-Jones, E., Gable, P. A., & Peterson, C. K. (2010). The role of asymmetric frontal cortical activity in emotion-related phenom- ena: A review and update. Biological Psychology, 84, 451–462. Hatfield, E., Walster, G. W., & Piliavvin, J. A. (1978). Equity theory and helping relationships. In L. Wispe (Ed.), Altruism, sympathy, and helping: Psychological and sociological perspectives (pp. 115–139). New York: Academic Press. Hein, G., Silani, G., Preuschoff, K., Batson, C. D., & Singer, T. (2010). Neural responses to ingroup and outgroup members’ suffering predict individual differences in costly helping. Neuron, 68, 149–160. Hewitt, L. S. (1975). The effects of provocation, intentions and consequences on children’s moral judgments. Child Develop- ment, 46, 540–544. Hoffman, M. L. (1994). The contribution of empathy to justice and moral judgment. In B. Puka (Ed.), Reaching out: Caring, altruism, and prosocial behavior (Vol. 7, pp. 161–195). New York: Garland. Hoffman, M. L. (2000). Empathy and moral development. Cam- bridge: Cambridge University Press. Hogan, R. (1969). Development of an empathy scale. Journal of Consulting and Clinical Psychology, 33, 307–316. Hollensbe, E. C., Khazanchi, S., & Masterson, S. S. (2008). How do I assess if my supervisor and organization are fair? Identifying the rules underlying the entity-based justice perceptions. Academy of Management Journal, 51, 1099–1116. Jacobs, J., Hwang, G., Curran, T., & Kahana, M. J. (2006). EEG oscillations and recognition memory: theta correlates of memory retrieval and decision making. Neuroimage, 32, 978–987. Judge, T. A., Scott, B. A., & Ilies, R. (2006). Hostility, job attitudes, and workplace deviance: Test of a multilevel model. Journal of Applied Psychology, 91, 126–138. Karakas, F., & Sarigollu, E. (2013). The role of leadership in creating virtuous and compassionate organizations: Narratives of benev- olent leadership in an Anatolian tiger. Journal of Business Ethics, 113(4), 663–678. Karniol, R. (1978). Children’s use of intention cues in evaluating behavior. Psychological Bulletin, 85, 76–85. Keysers, C. (2009). Mirror neurons. Current Biology, 19, R971– R973. Kiehl, K. A. (2006). A cognitive neuroscience perspective on psychopathy: evidence for paralimbic system dysfunction. Psychiatry Research, 142, 107–128. Kilner, J. M., Neal, A., Weiskopf, N., Friston, K. J., & Frith, C. D. (2009). Evidence of mirror neurons in human inferior frontal gyrus. Journal of Neuroscience, 29, 10153–10159. Knoch, D., Pascual-Leone, A., Meyer, K., Treyer, V., & Fehr, E. (2006). Diminishing reciprocal fairness by disrupting the right prefrontal cortex. Science, 314(5800), 829–832. Deontic Justice and Organizational Neuroscience 751 123 Knutson, B., & Greer, S. M. (2008). Anticipatory affect: neural correlates and consequences for choice. Philosophical Transac- tions of the Royal Society B: Biological Sciences, 363, 3771–3786. Knyazev, G. G., & Slobodskaya, H. R. (2003). Personality trait of behavioral inhibition is associated with oscillatory systems reciprocal relationships. International Journal of Psychophysi- ology, 48, 247–261. Koenigs, M., Young, L., Adolphs, R., Tranel, D., Cushman, F., Hauser, M., & Damasio, A. (2007). Damage to the prefrontal cortex increases utilitarian moral judgments. Nature, 446, 908–911. Kosfeld, M., Heinrichs, M., Zak, P. J., Fischbacher, U., & Fehr, E. (2005). Oxytocin increases trust in humans. Nature, 435(7042), 673–676. Krolak-Salmon, P., Henaff, M. A., Isnard, J., Tallon-Baudry, C., Guenot, M., Vighetto, A., et al. (2003). An attention modulated response to disgust in human ventral anterior insula. Annual Review of Neuroscience, 53, 446–453. Lamm, C., Batson, C. D., & Decety, J. (2007). The neural substrate of human empathy: effects of perspective-taking and cognitive appraisal. Journal of Cognitive Neuroscience, 19, 42–58. LaMonica, E. L., Carew, D. K., Winder, A. E., Haase, A. M. B., & Blanchard, K. (1976). Empathy training as a major thrust of a staff development program. Nursing Research, 25, 403–434. Lau, V., & Wong, Y. (2009). Direct and multiplicative effects of ethical dispositions and ethical climates on personal justice norms: A virtue ethics perspective. Journal of Business Ethics, 90, 279–294. Lazarus, R. S. (1984). On the primacy of cognition. American Psychologist, 39, 124–129. Lee, S. M., Gao, T., & McCarthy, G. (2014). Attributing intentions to random motion engages the posterior superior temporal sulcus. Social Cognitive and Affective Neuroscience, 9, 81–87. Lerner, M. J., & Goldberg, J. H. (1999). When do decent people blame victims? In S. Chaiken & Y. Trope (Eds.), Dual process theories in social psychology (pp. 627–640). New York: Guilford. Leventhal, G. S. (1980). What should be done with equity theory?: New approaches to the study of fairness in social relationships. In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social exchange: Advances in theory and practice (pp. 27–55). New York: Plenum Press. Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum Press. Ludwig, D. C., & Longenecker, C. O. (1993). The Bathsheba syndrome: The ethical failure of successful leaders. Journal of Business Ethics, 12, 265–273. Luo, Q., Nakic, M., Wheatley, T., Richell, R., Martin, A., & Blair, R. J. R. (2006). The neural basis of implicit moral attitude—an IAT study using event-related fMRI. Neuroimage, 30, 1449–1457. Lyons, D. E., Santos, L. R., & Keil, F. C. (2006). Reflections of other minds: how primate social cognition can inform the function of mirror neurons. Current Opinion in Neurobiology, 16, 230–234. Maddock, R. J., Garrett, A. S., & Bounocore, M. H. (2003). Posterior cingulate cortex activation by emotional words: fMRI evidence from a valance decision task. Human Brain Mapping, 18, 30–41. Majdandžić, J., Bauer, H., Windischberger, C., Moser, E., Engl, E., & Lamm, C. (2012). The human factor: Behavioral and neural correlates of humanized perception in moral decision making. PLoS ONE, 7, e47698. Massaro, S. (2015). Neuroscientific Methods Applications in Strategic Management. In G. Dagnino & C. Cinci (Eds.), Strategic management: A research method handbook (pp. 253–282). New York: Routledge. Massaro, S., & Becker, W. J. (2015). Organizational Justice through the Window of Neuroscience. In D. A. Waldman, & P. A. Balthazar (Eds.), Organizational Neuroscience (Monographs in Leadership and Management, Volume 7) (pp. 257–276). Bradford, UK: Emerald Group Publishing Limited. Masten, C. L., Morelli, S. A., & Eisenberger, N. I. (2011). An fMRI investigation of empathy for ‘social pain’ and subsequent prosocial behavior. Neuroimage, 55, 381–388. Mastrovito, D. (2013). Interactions between resting-state and task- evoked brain activity suggest a different approach to fMRI analysis. The Journal of Neuroscience, 33, 12912–12914. Mazoyer, B., Zago, L., Mellet, E., Bricogne, S., Etard, O., Houde, O., & Tzourio-Mazoyer, N. (2001). Cortical networks for working memory and executive functions sustain the conscious resting state in man. Brain Research Bulletin, 54, 287–298. Mesulam, M., & Mufson, E. J. (1982). Insula of the old world monkey. Architectonics in the insulo-orbito-temporal component of the paralimbic brain. Journal of Comparative Neurology, 212, 1–22. Miller, E. K., & Cohen, J. D. (2001). An integrative theory of prefrontal cortex function. Annual Review of Neuroscience, 24, 167–202. Miller, D. T., & McCann, C. D. (1979). Children’s reactions to the perpetrators and victims of injustices. Child Development, 50, 861–868. Moll, J., & de Oliveira-Souza, R. (2007). Moral judgments, emotions and the utilitarian brain. Trends in cognitive sciences, 11, 319–321. Moll, J., de Oliveira-Souza, R., Bramati, I. E., & Grafman, J. (2002). Functional networks in emotional moral and nonmoral social judgments. Neuroimage, 16, 696–703. Moll, J., Zahn, R., de Oliveira-Souza, R., Krueger, F., & Grafman, J. (2005). The neural basis of human moral cognition. Nature Reviews Neuroscience, 6, 799–809. Monin, P., Noorderhaven, N., Vaara, E., & Kroon, D. (2013). Giving sense to and making sense of justice in post-merger integration. Academy of Management Journal, 56, 256–284. Morrison, I., Lloyd, D., di Pellegrino, G., & Roberts, N. (2004). Vicarious responses to pain in anterior cingulate cortex: Is empathy a multisensory issue? Cognitive and Affective Behav- ioral Neuroscience, 4, 270–278. Nicklin, J. M., Greenbaum, R., McNail, L. A., Folger, R., & Williams, J. K. (2011). The importance of contextual variables when judging fairness: An examination of counterfactual thoughts and fairness theory. Organizational Behavior and Human Decision Processes, 114, 127–141. Nucci, L. P., & Nucci, M. S. (1982). Children’s responses to moral and social-conventional transgressions in free-play settings. Child Development, 53, 1337–1342. Nummenmaa, L., Hirvonen, J., Parkkola, R., & Hietanen, J. K. (2008). Is emotional contagion special? An fMRI study on neural systems for affective and cognitive empathy. Neuroimage, 43, 571–580. O’Reilly, J., & Aquino, K. (2011). A model of third parties’ morally motivated responses to mistreatment in organizations. Academy of Management Review, 36, 526–543. O’Reilly, J., Aquino, K., & Skarlicki, D. (2016). The lives of others: Third parties’ responses t others’ injustice. Journal of Applied Psychology, 101, 171–189. Ochsner, K. N., Ray, R. R., Hughes, B., McRae, K., Cooper, J. C., Weber, J., … & Gross, J. J. (2009). Bottom-up and top-down processes in emotion generation common and distinct neural mechanisms. Psychological Science, 20, 1322–1331. O’Shea, J., & Walsh, V. (2007). Transcranial magnetic stimulation. Current Biology, 17(6), R196–R199. Patient, D. L., & Skarlicki, D. P. (2005). Why managers don’t always do the right thing when delivering bad news: The roles of empathy, self-esteem, and moral development in interactional 752 R. S. Cropanzano et al. 123 fairness. In S. W. Gilliland, D. D. Steiner, D. P. Skarlicki, & K. van den Bos (Eds.), What motivates fairness in organizations?. Greenwich, CT: JAI Press. Patient, D. L., & Skarlicki, D. P. (2010). Increasing interpersonal and informational justice when communicating negative news: The role of the manager’s empathic concern and moral development. Journal of Management, 36, 555–578. Pecukonis, E. V.(1990). A cognitive/affective empathy training program as a function of ego development. Adolescence, 25, 59–76. Pelphrey, K. A., Morris, J. P., & McCarthy, G. (2004). Grasping the intentions of others: The perceived intentionality of an action influences activity in the superior temporal sulcus during social perception. Journal of Cognitive Neuroscience, 16, 1706–1716. Pessoa, L. (2014). Précis of the cognitive-emotional brain. Behavioral and Brain Sciences, 18, 1–66. Pfaff, D. W. (2007). The neuroscience of fair play: Why we (usually) follow the golden rule. New York: Dana Press. Pfurtscheller, G., & Da Silva, F. L. (1999). Event-related EEG/MEG synchronization and desynchronization: basic principles. Clini- cal Neurophysiology, 110, 1842–1857. Phan, K. L., Wager, T., Taylor, S. F., & Liberzon, I. (2002). Functional neuroanatomy of emotion: a meta-analysis of emo- tion activation studies in PET and fMRI. Neuroimage, 16, 331–348. Phillips, R. G., & LeDoux, J. E. (1992). Differential contribution of amygdala and hippocampus to cued and contextual fear condi- tioning. Behavioral Neuroscience, 106, 274. Preston, S. D., & De Waal, F. (2002). Empathy: Its ultimate and proximate bases. Behavioral and Brain Sciences, 25, 1–20. Raichle, M. E., MacLeod, A. M., Snyder, A. Z., Powers, W. J., Gusnard, D. A., & Shulman, G. L. (2001). A default mode of brain function. Proceedings of the National Academy of Sciences, 98, 676–682. Reb, J., Goldman, B. M., Kray, L. J., & Cropanzano, R. (2006). Different wrongs, different remedies? Reactions to organiza- tional remedies after procedural and interactional injustice. Personnel Psychology, 59, 31–64. Riess, H., Kelly, J. M., Bailey, R. W., Dunn, E. J., & Phillips, M. (2012). Empathy training for resident physicians: A randomized controlled trail of a neuroscience-informed curriculum. Journal of General Internal Medicine, 27, 1280–1286. Rizzolatti, G., & Craighero, L. (2004). The mirror-neuron system. Annual Review of Neuroscience, 27, 169–192. Robertson, D., Snarey, J., Ousley, O., Harenski, K., Bowman, F. D., Gilkey, R., & Kilts, C. (2007). The neural processing of moral sensitivity to issues of justice and care. Neuropsychologia, 45, 755–766. Rolls, E. T. (1996). The orbitofrontal cortex. Philosophical Transac- tions of the Royal Society of London. Series B, 351, 1433–1443. Rolls, E. T., & Grabenhorst, F. (2008). The orbitofrontal cortex and beyond: from affect to decision-making. Progress in Neurobi- ology, 86, 216–244. Rupp, D. E., & Paddock, E. L. (2010). From justice events to justice climate: A multilevel temporal model of information aggregation and judgment. Research on Managing Group and Teams, 13, 239–267. Salvador, R., & Folger, R. G. (2009). Business ethics and the brain. Business Ethics Quarterly, 19, 1–31. Sanfey, A. G., Rilling, J. K., Aronson, J. A., Nystrom, L. E., & Cohen, J. D. (2003). The neural basis of economic decision-making in the ultimatum game. Science, 300, 1755–1758. Saxe, R. (2006). Uniquely human social cognition. Current Opinion in Neurobiology, 16, 235–239. Saxe, R., & Wexler, A. (2005). Making sense of another mind: The role of the right temporo-parietal junction. Neuropsychologia, 43, 1391–1399. Saxe, R., Whitfield-Gabrieli, S., Scholz, J., & Pelphrey, K. A. (2009). Brain Regions for Perceiving and Reasoning About Other People in School-Aged Children. Child Development, 80, 1197–1209. Schnall, S., Benton, J., & Harvey, S. (2008). With a clean conscience: Cleanliness reduces the severity of moral judgments. Psycho- logical Science, 19, 1219–1222. Schnall, S., Haidt, J., Clore, G. L., & Jordan, A. H. (2009). Disgust as embodied moral judgment. Personality and Social Psychology Bulletin, 34, 1096–1109. Scott, B. A., Colquitt, J. A., & Paddock, E. L. (2008). An actor- focused model of justice rule adherence and violation: The role of managerial motives and discretion. Journal of Applied Psychology, 94, 756–769. Shamay-Tsoory, S. G. (2011). The neural bases for empathy. The Neuroscientist, 17, 18–24. Shamay-Tsoory, S. G., & Aharon-Peretz, J. (2007). Dissociable prefrontal networks for cognitive and affective theory of mind: A lesion study. Neuropsychologia, 45, 3054–3067. Shamay-Tsoory, S. G., Aharon-Peretz, J., & Perry, D. (2009). Two systems for empathy: a double dissociation between emotional and cognitive empathy in inferior frontal gyrus versus ventro- medial prefrontal lesions. Brain, 132, 617–627. Shamay-Tsoory, S. G., Harari, H., Aharon-Peretz, J., & Levkovitz, Y. (2010). The role of the orbitofrontal cortex in affective theory of mind deficits in criminal offenders with psychopathic tendencies. Cortex, 46, 668–677. Shamay-Tsoory, S. G., Tomer, R., Berger, B. D., & Aharon-Peretz, J. (2003). Characterization of empathy deficits following prefrontal brain damage: the role of the right ventromedial prefrontal cortex. Journal of Cognitive Neuroscience, 15, 324–337. Shao, R., Aquino, K., & Freeman, D. (2008). Beyond moral reasoning: A review of moral identity research and its implica- tions for business ethics. Business Ethics Quarterly, 18, 513–540. Shenhav, A., & Greene, J. D. (2010). Moral judgments recruit domain-general valuation mechanisms to integrate representa- tions of probability and magnitude. Neuron, 67, 667–677. Shulman, G. L., Fiez, J. A., Corbetta, M., Buckner, R. L., Miezin, F. M., Raichle, M. E., & Petersen, S. E. (1997). Common blood flow changes across visual tasks: II. Decreases in cerebral cortex. Journal of Cognitive Neuroscience, 9, 648–663. Singer, T. (2006). The neuronal basis and ontogeny of empathy and mind reading: Review of literature and implications for future research. Neuroscience and Biobehavioral Reviews, 30, 855–863. Singer, T., & Lamm, C. (2009). The social neuroscience of empathy. Annals of the New York Academy of Sciences, 1156, 81–96. Singer, T., Seymour, B., O’Doherty, J., Kaube, H., Dolan, R. J., & Frith, C. D. (2004). Empathy for pain involves the affective but not sensory components of pain. Science, 303, 1157–1162. Singer, T., Seymour, B., O’Doherty, J. P., Stephan, K. E., Dolan, R. J., & Frith, C. D. (2006). Empathic neural responses are modulated by the perceived fairness of others. Nature, 439, 466–469. Skarlicki, D. P., Ellard, J. H., & Kelln, B. R. C. (1998). Third party perceptions of a layoff: Procedural, derogation, and retributive aspects of justice. Journal of Applied Psychology, 83, 119–127. Skarlicki, D. P., & Folger, R. (2004). Broadening our understanding of organizational retaliatory behaviors. In R. W. Griffin & A. M. O’Leary-Kelly (Eds.), The dark side of organizational behavior (pp. 373–402). New York: Jossey-Bass. Skarlicki, D. P., Hoegg, J., Aguino, K., & Nadisic, T. (2013). Does injustice affect your taste and smell? The mediating role of moral disgust. Journal of Experimental Social Psychology, 49, 852–859. Skarlicki, D. P., & Kulik, C. (2005). Third party reactions to employee mistreatment: A justice perspective. In B. Staw & R. Deontic Justice and Organizational Neuroscience 753 123 Kramer (Eds.), Research in organizational behavior (Vol. 26, pp. 183–230). Greenwich, CT: JAI Press. Skarlicki, D. P., O’Reilly, J., & Kulik, C. T. (2015). The third party perspective on (in)justice. In R. Cropanzano & M. A. Ambrose (Eds.), Oxford handbook of justice in work organizations (pp. 235–255). Oxford: Oxford University Press. Skarlicki, D. P., & Rupp, D. E. (2010). Dual processing and organizational justice: The role of rational versus experiential processing in third-party reactions to workplace mistreatment. Journal of Applied Psychology, 95, 944–952. Skarlicki, D. P., van Jaarsveld, D. D., & Walker, D. D. (2008). Getting even for customer mistreatment: The role of moral identity in the relationship between customer interpersonal justice and employee sabotage. Journal of Applied Psychology, 93, 1335–1347. Smetana, J. G. (1981). Preschool children’s conceptions of moral and social rules. Child Development, 52, 1333–1336. Smetana, J. G. (1984). Toddlers’ social interactions regarding moral and conventional transgressions. Child Development, 55, 1767–1776. Smetana, J. G. (1985). Preschool children’s conceptions of trans- gressions: The effects of varying moral and conventional domain-related attributes. Developmental Psychology, 21, 18–29. Smetana, J. G. (1989). Toddlers’ social interactions in the context of moral and conventional transgressions in the home. Develop- mental Psychology, 25, 499–508. Smetana, J. G., Schlagman, N., & Adams, P. W. (1993). Preschool children’s judgments about hypothetical and actual transgres- sions. Child Development, 64, 202–214. Stikic, M., Berka, C., Waldman, D., Balthazard, P., Pless, N., & Maak, T. (2013). Neurophysiological estimation of team psychological metrics. In Foundations of augmented cognition (pp. 209–218). Berlin: Springer. Suhler, C. L., & Churchland, P. (2011). Can innate, modular ‘‘foundations’’ explain morality? Challenges for Haidt’s moral foundations theory. Journal of Cognitive Neuroscience, 23, 2103–2116. Tancredi, L. (2005). Hardwired behavior: What neuroscience reveals about morality. Cambridge: Cambridge University Press. Terwogt, M. M., & Rieffe, C. (2003). Stereotyped beliefs about desirability: implications for characterizing the child’s theory of mind. New Ideas in Psychology, 21, 69–84. Thomson, J. J. (1986). Rights, restitution and risk (pp. 94–116). Cambridge: Harvard University Press. Turillo, C. J., Folger, R., Lavelle, J. J., Umphress, E., & Gee, J. (2002). Is virtue its own reward? Self-sacrificial decisions for the sake of fairness. Organizational Behavior and Human Decision Processes, 89, 839–865. Tversky, A., & Kahneman, D. (1986). Rational choice and the framing of decisions. Journal of business, 59, S251–S278. Tyler, T. R. (1997). The psychology of legitimacy: A relational perspective on voluntary deference to authorities. Personality and Social Psychology Review, 1, 323–345. Tyler, T. R. (2006). Why people open the law. Princeton, NJ: Princeton University Press. Tyler, T. R., & Blader, S. (2000). Cooperation in groups: Procedural justice, social identity, and behavioral engagement. Philadel- phia, PA: Psychology Press. Tyler, T. R., Boeckmann, R. J., Smith, H. J., & Huo, Y. J. (1997). Social justice in a diverse society. Boulder, CO: Westview. Uddin, L. Q., Clare Kelly, A. M., Biswal, B. B., Xavier Castellanos, F., & Milham, M. P. (2009). Functional connectivity of default mode network components: correlation, anticorrelation, and causality. Human Brain Mapping, 30, 625–637. Umphress, E. E., Campbell, J. T., & Bingham, J. B. (2010). Paved with good intentions: Unethical behavior conducted to benefit the organization, coworkers, and customers. In M. Schminke (Ed.), Managerial ethics: Managing the psychology of morality (pp. 127–152). New York: Routledge. Umpress, E. E., Simmons, A. L., Folger, R., Ren, R., & Bobocel, R. (2013). Observer reactions to interpersonal injustice: The role of perpetrator intent and victim perception. Journal of Organiza- tional Behavior, 34, 327–349. Van Overwalle, F., & Baetens, K. (2009). Understanding others’ actions and goals by mirror and mentalizing systems: a meta- analysis. Neuroimage, 48, 564–584. Walter, H. (2012). Social cognitive neuroscience of empathy: Concepts, circuits, and genes. Emotion Review, 4, 9–17. Wicker, B., Keysers, C., Plailly, J., Royet, J.-P., Gallese, V., & Rizzolatti, G. (2003). Both of us disgusted in my insula: The common neural basis of seeing and feeling disgust. Neuron, 40, 654–655. Wispé, L. (1986). The distinction between sympathy and empathy: To call forth a concept, a word is needed. Journal of Personality and Social Psychology, 50, 314–321. Yoder, K. J., & Decety, J. (2014). The Good, the Bad, and the Just: Justice Sensitivity Predicts Neural Response during Moral Evaluation of Actions Performed by Others. Journal of Neuro- science, 34, 4161–4166. Young, L., Cushman, F., Hauser, M., & Saxe, R. (2007). The neural basis of the interaction between theory of mind and moral judgment. Proceedings of the National Academy of Sciences, 104, 8235–8240. Zajonc, R. B. (1984). On the primacy of affect. American Psychol- ogist, 39, 117–123. Zaki, J., & Ochsner, E. (2012). The neuroscience of empathy: Progress, pitfalls, and promise. Nature Neuroscience, 15, 675–680. Zhan, R., de Olivera-Souza, R., & Moll, J. J. (2013). Moral Emotions. In J. Armony & P. Vuilleumier (Eds.), The Cambridge handbook of human affective neuroscience. Cambridge: Cambridge Univer- sity Press. 754 R. S. Cropanzano et al. 123 Deontic Justice and Organizational Neuroscience Abstract Organizational Justice Overview of the Three Motives for Justice Deontic Justice and the Question of ‘How?’ Deontic Justice and Organizational Neuroscience: An Overview Overview of the Present Model Closing Thought and Looking Ahead Recognizing and Applying Justice Rules Development of Moral Norms Moral Norms and Neuroscience The Trolley Problem, the Prefrontal Cortex, and Two Types of Moral Violations Additional Brain Regions Involved and Justice Rules Conclusions and Research Needs Closing Thoughts on Justice Rules Deontic Justice as an Empathic Process Empathy: Some General Remarks Cognitive Empathy: Understanding the Victim’s Psychological Experience Temporoparietal Junction (TPJ) Posteromedial Cortex (PMC) Prefrontal Cortex (PFC) Cingulate Cortex or Cingulum A Complex Outlook Affective Empathy: Sharing the Victim’s Psychological Experience Anterior Insula Amygdala Somatosensory Cortices Inferior Frontal Gyrus (IFG) Cognitive and Affective Empathy Working Together Conclusions and Research Needs Empathy’s Direct Effects on Behavior: Too Much of a Good Thing? Empathy and the Potential for Preferential Treatment Empathy-Induced Preferential Treatment and Justice Discussion Theoretical and Practical Implications Limitations and Further Research Avenues Conclusions References 
work_zeqghdsawbd6tmavhz73seru6y	----	Open Access to Criminal Justice Scholarship: A Matter of Social Justice Open Access to Criminal Justice Scholarship: A Matter of Social Justice Authors: Allan Scherlen; Matthew Robinson Published in: Journal of Criminal Justice Education, Volume 19, Issue 1 March 2008 , pages 54 - 74 The original published version was published by Taylor & Francis and can be accessed at http://www.tandf.co.uk/journals/titles/10511253.asp. Abstract The paper argues that criminal justice scholarship disseminated through the traditional journal subscription model is not consistent with social justice. Adoption of "open access" principles in publishing benefits both authors and readers through broader and more egalitarian dissemination of criminal justice literature. Moreover, when viewed in light of social justice theory, open access is a more just method of scholarly communication. After providing a brief outline of the history and basic aspects of open access, the paper uses the framework of the social justice theories of John Rawls and David Miller to argue why open access is more just than traditional subscription models of publishing and why criminal justice scholars and their associations must consider the importance of supporting open access initiatives and promoting the dissemination of scholarship as widely as possible if they are concerned about attaining justice for criminal justice scholarly literature. Introduction The discipline of criminal justice concerns itself first and foremost with issues of "justice," but ironically the process for the dissemination of scholarship within the discipline of criminal justice is inconsistent with theories of social justice articulated by justice theorists, John Rawls and David Miller. Currently, criminal justice societies, like those of most other academic disciplines, publish articles in journals that have been outsourced to large corporations which maintain a profit by limiting access to scholarship through ever-inflating subscription barriers. Traditional models of disseminating knowledge through subscriptions served scholarship well through the twentieth century but are now limiting the potential for authors' impact and readers' access. Since the advent of the Internet, the ways scholars create and share academic research have rapidly changed. Throughout the late 1990s and into the 21st century, scholars in various fields began to realize that they could create an academic journal and distribute it on the web for a minimal cost, while others found that they could post their published http://www.informaworld.com/smpp/title%7Econtent=t713721714%7Edb=all http://www.informaworld.com/smpp/title~content=t713721714~db=all~tab=issueslist~branches=19#v19 http://www.informaworld.com/smpp/title%7Econtent=g791088515%7Edb=all http://www.tandf.co.uk/journals/titles/10511253.asp papers on their own websites. Meanwhile, commercial publishers discovered that the power of digital technologies allowed them to turn academic journal publishing into a profitable business. The traditional paper journal was rapidly becoming obsolete in the face of online innovations, while new methods for digitally sharing journal articles, research data, and other findings were promising to better serve the advancement of knowledge and to benefit both authors and readers more effectively. Developments in new knowledge sharing technologies coupled with concern over the alarming inflation rate of journal subscription prices over the last 20 years led to a variety of innovations that have come to be referred to as "open access." These initiatives have dealt in one way or another with freeing reader's access to academic research literature from financial obstacles of the traditional subscription model of journal publishing, so anyone who has access to the Internet can access scholarship. Three major manifestations of "open access" that have emerged are: free open access academic journals, free access to the back files of some subscription journals, and permissions by subscription journals for authors to self archive on a website or in an e-repository. Many criminal justice scholars and practitioners may be unaware of this growing development in scholarly communication that is changing how we think about sharing research and revolutionizing our traditional notions of academic publishing. Scholars, publishers, and organizations within criminal justice must now become aware and address the issues around open access for at least two reasons. First, it will benefit them with more online readers and more professional impact; second, it will benefit students, practitioners in the field and less fortunate researchers around the world who cannot afford to pay for subscription access to cutting edge, criminal justice journal literature. It is thus natural that, since justice is at the core of what criminal justice scholars pursue, they and their supporting associations address the justice of opening access to their own literature. In this paper, we introduce the open access movement and discuss its implications for social justice. After examining two contemporary statements by major social justice thinkers, we then argue that limiting access to information by criminal justice societies is inconsistent with these theories of social justice. Conversely, we argue that the open access movement is consistent with social justice. What Is Open Access? Background - Corporate Journal Publishing and the Internet The origin of open access can be traced both to the advent of the Internet providing the means of more easily and widely disseminating scholarly information and to a reaction to the rising cost of subscription journals, especially in the areas of science, technology, and medicine. Since the 1960s, the number of journals available for a given discipline has steadily increased. For example, in 1960, the discipline of economics was served by approximately 30 journals (almost all of which were produced by scholarly associations). By 1980, there were 120 titles (half of which were published by corporate publishers), and by 2000 the number had risen to over 300 (two-thirds of which were corporate published) (Willinsky 2006). Today, a handful of corporate publishers produce a growing portion of academic literature. For example, as of December 2006, three publishers - Reed Elsevier (with over 2,000 journal titles), Taylor & Francis (with over 1,000 titles) and Springer (with over 1,700) - controlled about 60 percent of the research indexed in ISI Web of Science citation index (Willinsky 2006). Expanding the list of the largest journal publishers, we should add John Wiley (which recently acquired Blackwell for 1.08 billion dollars and can now boast a combined catalog of 1,250 journals).1 Since the mid-1990s, subscription prices for journals published by corporate publishers, especially in the areas of science, technology, and medicine, have been inflating at alarming rates. For example, McCabe (2002) reports that between 1988 and 1998, the subscription cost of biomedical journals published by corporate publishers increased by 224 percent, compared to 129 percent for journals from nonprofit publishers. From 1986 to 2002, the Consumer Price Index rose 64 percent, while journal prices rose 227 percent. Thus, a typical research library spent 227 percent more on journals in 2002 than in 1986, but the number of titles purchased increased by only 6 percent.2 Journal inflation continues to increase at a rate of 6-12 percent annually, and this has to some degree been responsible for the 6 percent decrease in the purchase of books by research libraries between 1986 and 2002.3 A number of university libraries post the cost of their most expensive journals. Cornell University did a study of the rising cost of journals back in 1998 and found that subscriptions to the 312 research journals studied were as high as $5,000 a year.4 In 1997, Yale noted 27 journal titles that cost over $4,000. The following subscription prices were among the most expensive journals to which they subscribed: Journal of Physics at $22,497, Brain Research at $14,919, and Comparative Biochemistry and Physiology at $7,398.5 The average subscription price that a university library paid for an academic journal in 2005 was $484.97.6 In criminal justice and criminology, respectively, the national associations of record are the Academy of Criminal Justice Sciences (ACJS) and the American Society of Criminology (ASC). Each provides journals to their members as part of the cost of membership. For ACJS, that cost is $75, and for ASC, the cost is $90. ACJS provides two journals through Routledge Journals - Justice Quarterly and the Journal of Criminal Justice Education. The 2006 institution subscription rate for Justice Quarterly was $482.7 The 2006 institution subscription rate for the Journal of Criminal Justice Education was $372.8 ASC provides two journals through Blackwell Publishing - Criminology and Criminology & Public Policy. The 2006 institution subscription rate for Criminology was $240, which includes a subscription to Criminology & Public Policy.9 http://www.informaworld.com/smpp/section?content=a791088311&fulltext=713240928#FN0007 http://www.informaworld.com/smpp/section?content=a791088311&fulltext=713240928#FN0009 http://www.informaworld.com/smpp/section?content=a791088311&fulltext=713240928#FN0009 One must keep in mind that though the cost of academic journals continues to inflate into the three, four, and even five digits, the cost of much of the research upon which the articles are based was born by grant funding agencies, authors' home institutions, and authors themselves. The labor for peer review of submitted articles is also generally done gratis by academicians in the field. There are over 24,000 peer-reviewed research journals in the world across the disciplines, publishing well over 2.5 million articles a year (Harnad et al. 2004). But since library budgets are limited, they can afford only a small fraction of those journals each year. Yet, Harnad warns that we must be careful not to suggest open access as a solution to the problem of dealing with rapidly rising subscription costs, the so-called "serials crisis." There will continue to be a gap between the volume of literature available and the financial ability of libraries to acquire as much as they would like. As Harnad and colleagues (2004) have noted, there is a difference between "the journal-affordability problem" and the "article-access/impact problem." The latter problem is a by-product of the proliferation of journal titles and the serials crisis. The article-access/impact problem states that since so few of the 2.5 million articles published every year can be accessed by many people, the impact of those articles is diminished. Open access promises to provide more access to this growing body of literature to those who need immediate access to it. The evolution in scholarly publishing, in which a few corporate publishers have come to dominate the journal publishing world with ever inflating subscription prices, is further complicated by bundled deals where libraries are increasingly under pressure to contract for collections of publishers' titles rather than individual titles. This trend is becoming economically unsustainable. The result of such a corporate model ultimately is that library institutions' budgets are strained, library resources for other materials must be cut, and researchers and students have diminishing access to relevant scholarship. Those who look to interlibrary loan (ILL) as an alternative to the inflating cost of electronic journals are discovering this window in many cases to be closing. The decision by academic journal publishers to migrate from paper to electronic format has diminished the ability of institutions that cannot afford the cost of subscription to borrow them from other institutions through traditional ILL mechanisms because many electronic journal license agreements can restrict subscribers' rights to lend copies to other institutions (Chou and Zhou 2005). Defining and Differentiating Open Access Though open access has come to represent a spectrum of means to provide free access to scholarly literature, the basic principles were codified by definitive statements made by three influential proclamations: the Budapest (February 2002), Bethesda (June 2003) and Berlin (October 2003) definitions. Essentially, open access, paraphrasing the Budapest statement, is defined as free availability of scholarly literature on the public Internet, permitting anyone to read, download, copy, distribute, or print the full text without restrictions (other than to give authors control over the integrity of their work and the right to be properly acknowledged and cited).10 While the Budapest definition of open access may represent the pure ideal, there are many variations on the theme. In addition to the growing list of peer-reviewed, freely available academic journals on the Internet, other developments have occurred in the spirit of open access. These include, for example: the willingness of a growing number of publishers to provide free access to all or portions of their back issues; publications which provide selected articles of each issue for free; and publications which offer authors the option of paying a fee to make their scholarship open access in an otherwise subscription only journal. Even initiatives to produce low cost, low priced journals - though not strictly open access - have been put forward as at least being in the spirit of "open access." Discussions around open access are often fraught with fear and anger over what some perceive as attempts to destroy the peer review system, discard the protections of copyright or to make scholarship less rigorous. Proponents of open access will argue that they are not asking for research literature to be placed in the public domain or even to reform copyright law. Nor are they asking that all scholarship (e.g., books) be open access. They also are not appealing to do away with peer-review or academic associations. On the contrary, these could both be reinvigorated by the broad acceptance of, support for, and involvement in open access by academic associations. Open access is instead based on the assertion that the traditional model of academic journal publishing be modified or augmented so that scholarship will be more accessible to wider audiences. The call for open access, it must be understood, is not a call to shun subscription publishers or for libraries to cancel their journals. In fact, ironically, it can be argued that one of the greatest contributors to open access is the giant publishing conglomerate, Reed Elsevier. Not only does Reed Elsevier allow its authors to post the final versions of papers on websites and e-repositories, it also provides free electronic access to the citations and abstracts of its 2000+ journals. Along with a number of other publishers, Elsevier has also agreed to make its journals open access to a list of institutions and countries in some the most impoverished areas of the world.11 Though this effort is to be lauded, only a fraction of those in developing countries in need of access to current scholarship, unfortunately, are reached through these assistance efforts. Open Access Journals The most direct and purest form of open access is the so-called "gold path," scholarship published in an open access journal, freely available to readers on the Internet. Financial support for such journals may entirely come from an academic institution or a scholarly or professional association. In the case of Science, Technology, and Medicine (STM) open access journals, funding often is also acquired by asking that a portion of the research grant funding be directed toward publishing costs. The goal of open access is to shift thinking away from charging readers toward considering the dissemination of scholarship as part of the cost of research that should be included in funding requests from research grant agencies and/or one's departmental funding requests similar to how professional travel funds are allocated. The Public Library of Science journals, PLoS Biology and PLoS Medicine, are perhaps the most widely known open access journals, having quickly garnered respect in their disciplines along with a flurry of press coverage at their inception. More than 2,500 open- access journals in wide-ranging fields are currently listed in the Directory of Open Access Journals (DOAJ) which indexes open access journals on the web.12 A search of the DOAJ database, freely available online, will reveal that among the 2,500 open access journals indexed, a small but growing number of peer-reviewed open access journals in criminal justice have already become available on the web.13 Open access journals perform peer-review and then make the resulting approved scholarship free to the world. New open access journal benefit from open source, journal management systems, such as Open Journal Systems (OJS), and from organizations, such as SPARC, that provide advisory service for new open access journals.14 Open Access Archives Since the early 1990s, researchers in physics have shared their research freely online through arXiv.org before publication. Open digital archives such as arXiv.org, PubMed Central, and a rapidly growing number of institution-based e-repositories enable authors to ensure their works are available for fellow researchers and the public, and thus assure a free flow of scholarly communication. Depositing one's scholarship in a properly designed e-repository rather than on a personal website assures that the scholarship will have a persistent address (URL) over the long term and have searchable metadata (conforming to universal standards across repositories), and that the scholarship will be properly preserved and accessible to the entire world in the future. Today, over 90 percent of academic journal publishers permit authors some form of self-archiving.15 Since the great majority of academic journals now permit self-archiving by their authors either on the author's website or in the author's institutional e-repository (IR), much of the responsibility for making journal literature open access has been shifted to the authors. By depositing a digital copy of scholarship on a website or in an IR, they can make the item accessible to anyone who searches the web using Google or a special repository search engine such as OAIster.org. The number of universities around the United States and in other countries implementing institutional repositories is rapidly growing every year. In a survey distributed to 123 American Research Libraries (ARL) members in January 2006, 43 percent of the respondents said they have an operational IR, and 35 percent said they are planning to implement one by 2007 (Bailey 2006). Studies clearly show that authors' research impact (that is, the amount to which their scholarship is read, used, and cited by others in their own research and applications) is dramatically increased by making the scholarship open access through the act of depositing the research in an electronic institutional repository (Harnad et al. 2004). The US National Institutes of Health (NIH) Public Access Policy in recent years has directed that its funded researchers deposit their final peer-reviewed manuscripts in PubMed Central, NIH's online digital archive. NIH also permits grant funds to be used to pay journal publication fees. The US Congress is also taking a growing interest in ensuring access to federally funded research. For example, on May 2, Sen. John Cornyn, R-Texas, introduced the bipartisan Federal Research Public Access Act of 2006 (FRPAA) which would require that research supported by major government funding agencies (with research budgets of more than $100 million) be made freely available online within 6 months of publication. This legislation is pending as of this writing.16 There is a growing alliance of citizens in the United States seeking to have tax-funded research openly available to the public after publication.17 This access would primarily be accomplished though archiving the research in freely accessible e-repositories. Open Access and the Public Good In addition to citizen concern for access to taxpayer-funded research that is blocked by subscription tolls, there is a growing consensus among scholars across disciplines in favor of providing open access to as much scholarly communication as possible, not only because it is the best means of disseminating the knowledge of a discipline and advancing research but also because it benefits the public good. Opening access to scholarship for users around the world promises to benefit people in numerous ways. Open access, for example, permits a doctor doing research in Malawi to find the latest medical research and for the rest of the world to read the research they publish in a journal of that region. Open access allows a county official writing a proposal for a change in jail policies in a rural county in the United States to find current academic discussion on the topic. Open access permits a professor who does not happen to work in a well-funded institution to have ready access to the scholarship they need now rather than waiting for an interlibrary loan or hoping an email to the author will result in a copy. Open access results in better-informed citizens, better-informed patients, more currently informed scholars, and more academic equality for researchers around the world. Thus, opening access to academic journal literature is key to promoting a more just system of scholarly communication in all the disciplines. We now turn to an examination of theories of justice and an application of these theories to the justice issue of opening access to criminal justice scholarship in particular. What Is Social Justice? Social justice is generally equated with the notion of equality or equal opportunity in society. Although equality is undeniably part of social justice, the meaning of social justice is actually much broader. Further, "equal opportunity" and similar phrases such as "personal responsibility" have been used to diminish the prospective for realizing social justice by justifying enormous inequalities in modern society (Berry 2005). The most recent theories of and scholarly statements about social justice illustrate the complex nature of the concept. Two of the most prominent statements about social justice, each of which posits its own theory of social justice, are John Rawls' (2003) Justice as Fairness and David Miller's (2003) Principles of Social Justice. While neither of these theories can be considered an exhaustive treatment of the subject matter, each offers a complex theory of social justice that illustrates its broad meaning. Both conceptions of social justice are similar, so there is significant overlap between the main ideas of the theorists; this is likely due to the fact that they are founded on like principles and based on previously posited theories from significant historical political philosophers (Brighouse 2005). John Rawls' "Justice as Fairness" Beginning with John Rawls, his theory of social justice is referred to as "justice as fairness." Rawls (2003) set out to sketch a theory of social justice that would answer the questions: "once we view a democratic society as a fair system of social cooperation between citizens regarded as free and equal, what principles are most appropriate to it?" and " which principles are most appropriate for a democratic society that not only professes but wants to take seriously that citizens are free and equal, and tries to realize that idea in its main institutions?"18 Rawls' theory of "justice as fairness," aimed at answering the above questions, can be summarized with two primary principles. They are: 1. Each person has the same indefensible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all19; and 2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity20; and second, they are to be to the greatest benefit of the least- advantaged members of society21 (Rawls 2003:42-43). According to Rawls, these principles are ordered, meaning the first principle (the "equal liberties principle") should be achieved before efforts to achieve the second principle are attempted. Further, the first part of the second principle (the "equal opportunity principle") precedes the second part (the "difference principle"). The ordering of the principles suggests that, to Rawls, equality is the most important element of social justice. Equality means a fair distribution of each of the capacities needed "to be normal and fully cooperating members of society over a complete life" (Rawls 2003:18). Just because Rawls' conception of social justice values equality, this does not mean that equal outcomes will be achieved in society, or that they even can be. In fact, Rawls' second principle asserts that inequalities in society are acceptable as long as they meet two conditions. First, as per the "equal opportunity principle," inequalities are acceptable if every person in society has a reasonable chance of obtaining the positions that lead to the inequalities. An example would be equal opportunity to achieve any job. Rawls (2003:43) specifies that "fair equality of opportunity" requires "not merely that public offices and social positions open in the formal sense, but that all should have a fair chance to attain them." Second, as per the "difference principle," inequalities in society must be organized so that they are to the greatest benefit of the least advantaged members of society. After explaining that today's economic inequalities are simply not acceptable, Rawls (2003:59- 60) explains the difference principle this way: "To say that inequalities in income and wealth are to be arranged for the greatest benefit of the least advantaged simply means that we are to compare schemes of cooperation by seeing how well off the least advantaged are under each scheme, and then to select the scheme under which the least advantaged are better off than they are under any other scheme." By the least advantaged, Rawls is referring to those who lack what he calls "primary goods" (Rawls 2003:53). Primary goods, according to Rawls, include things needed and required by persons seen in the light of the political conception of persons, as citizens who are fully cooperating members of society, and not merely as human beings apart from any normative conception. These goods are things citizens need as free and equal persons living a complete life; they are not things it is simply rational to want or desire, or to prefer or even to crave. (Rawls 2003:58) Such goods include: • the basic rights and liberties: freedom of thought and liberty of conscience, etc.; • freedom of movement and free choice of occupation against a background of diverse opportunities, which opportunities allow the pursuit of a variety of ends and give effect to decisions to revise and alter them; • powers and prerogatives of office and position of authority and responsibility; • income and wealth, understood as all-purpose means (having an exchange value) generally needed to achieve a wide range of ends whatever they may be; and • the social bases of self-respect, understood as those aspects of basic institutions normally essential if citizens are to have a lively sense of their worth as persons and to be able to advance their ends with self-confidence (Rawls 2003:58-59). It should also be noted that Rawls (2003:13) acknowledges the importance of "human rights" as well. He writes: "A just world order is perhaps best seen as a society of peoples, each people maintaining a well-ordered and decent political (domestic) regime, not necessarily democratic but fully respecting basic human rights." Human rights are expansive and include rights in the following areas: general freedom; dignity; life; liberty; security; equality before the law; fair and public hearings by independent and impartial tribunals; presumption of innocence until proven guilty; freedom of movement and residence; right to seek and gain asylum from persecution; right to a nationality; the right to marry and have a family; right to own property; freedom of thought, conscience and religion; freedom of opinion and expression; freedom of peaceful assembly and association; the right to participate in government; the right to social security; the right to work by free choice and to have protection against unemployment; the right to equal pay for equal work; the right to rest and leisure; the right to an adequate standard of living, including "food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age "; the right to education; the right to participate in the community and "to enjoy the arts and to share in scientific advancement and its benefits"; the right to the "protection of the moral and material interests resulting from any scientific, literary or artistic production of which [one] is the author." Additionally, people enjoy freedom from slavery or servitude; torture or cruel, inhuman or degrading treatment or punishment; discrimination; arbitrary arrest, detention, or exile; arbitrary interference with privacy; among many others.22 Those rights that we have emphasized relate to open access of knowledge and scholarship. Since Rawls emphasizes human rights in his theory of justice as fairness, and since some of the human rights relate to access to knowledge and benefits of scholarship, Rawls' theory of justice as fairness is directly relevant to issues of open access. We can use Rawls' theory of "justice as fairness" to determine if any process or outcome is consistent with social justice. When a process or outcome does not comport with any of Rawls' principles, we can conclude that it is not consistent with social justice. That is, something is not consistent with Rawls' conception of social justice if it interferes with any person's indefensible claims to equal basic liberties (the "equal liberties principle"); or if inequalities in society are not attached to offices and positions open to all under conditions of fair equality of opportunity (the "equal opportunity principle"); or if inequalities in society are not arranged to the greatest benefit of the least-advantaged members of society (the "difference principle"). David Miller's "Pluralistic Theory of Social Justice" David Miller's theory comprises a wider range of concepts than that of John Rawls. The theory is pluralistic or circumstantial because different parts of his conception of social justice are more or less relevant depending on the circumstances (Miller 2003:62-63). To Miller, social justice deals with the distribution of good and bad in society, and more specifically with how these things should be distributed within society.23 Miller (2003:1) explains that when "we attack some policy or some state of affairs as socially unjust, we are claiming that a person, or more usually a category of persons, enjoys fewer advantages than that person or group of persons ought to enjoy (or bears more of the burdens than they ought to bear), given how other members of the society in question are fairing." Given this conception of social justice, it is not surprising that Miller's theory focuses on the concepts of need, desert, and equality. Need is a claim that one is lacking is basic necessities and is being harmed or is in danger of being harmed and/or that one's capacity to function is being impeded (Miller 2003:207, 210). Desert is a claim that one has earned reward based on performance, that superior performance should attract superior recognition (Miller 2003:134, 141). Equality refers to the social ideal that society regards and treats its citizens as equals, and that benefits such as certain rights should be distributed equally (Miller 2003:232). Miller's (2003:25) theory asserts that whether need, desert, or equality takes precedence depends on which "mode of human relationship" is being considered. This is because "we can best understand which demands of justice someone can make of us by looking first at the particular nature of relationship." A "mode of human relationship" refers to the different kinds of relationships that people have with one another. Miller (2003:26) specifies three basic modes of human relationships, including the solidaristic community, instrumental associations, and citizenship. A solidaristic community "exists when people share a common identity as members of a relatively stable group with a common ethos" (e.g., family relations). In this mode of human relationships, the principle of distribution according to need is most relevant: Each member is expected to contribute to relieving the needs of others in proportion to ability, the extent of liability depending upon how close the ties of community are in each case Needs will be understood in terms of the general ethos of the community. Each community embodies, implicitly or explicitly, a sense of the standards that an adequate human life must meet, and it is in terms of this benchmark that the much-contested distinction between needs, which are matters of justice, and mere wants is drawn. (Miller 2003:27) Instrumental associations exist when "people relate to one another in a utilitarian manner; each has aims and purposes that can best be realized by collaboration with others" (e.g., economic relations). In this mode of human relationships, the principle of distribution according to desert is most relevant: Each person comes to the association as a free agent with a set of skills and talents that he deploys to advance its goals. Justice is done when he receives back by way of reward an equivalent to the contribution he makes. A person's deserts, in other words, are fixed by the aims and purposes of the association to which she belongs; these provide the measuring rod in terms of which relative contributions can be judged. (Miller 2003:28). Finally, citizenship refers to "members of a political society" in "modern liberal democracies" who are related not just through their communities and their instrumental associations but also as fellow citizens. Anyone who is a full member of such a society is understood to be the bearer of a set of rights and obligations that together define the status of citizen. In this mode of human relationship, the principle of distribution according to equality is most relevant because everyone in the society is deemed equal in terms of certain rights (Miller 2003:30). Because of the citizenship mode, rights play a significant role in Miller's theory of social justice as they also did in Rawls' theory. Miller (2003:13) explains that a central element in any theory of justice will be an account of the basic rights of citizens, which will include rights to various concrete liberties, such as freedom of movement and freedom of speech an extensive sphere of basic liberty is built into the requirements of social justice itself. As noted in the discussion of John Rawls, the meaning human rights is well understood, and includes rights in dozens of areas, including several related to open access to knowledge and scholarship. Miller does not build a theory of social justice that requires one to emphasize either need, desert, or equality over the others; rather, he presents a theory whereby the three are in balance with one another. Because people's views about justice are pluralistic and "very often people decide what a fair distribution consists of by balancing claims of one kind against claims of another," it follows that "the social context in which the distribution has to be made - or more precisely how that context is perceived by those making the judgment - will determine which principle stands out as the relevant principle of justice" (Miller 2003:63). A significant issue, though, is which should take precedence when there are conflicting demands and expectations for processes that aim to accommodate need, desert, and equality, as well as for outcomes that satisfy need, desert, and equality. Miller prioritizes need above desert, and desert above equality, although he also points out that at times, desert can take precedence over need (as in the case where the needy are not seen as deserving) (Miller 2003:76-78). Miller is careful to point out that "[m]erit of any sort should only be allowed to govern the distribution of a certain range of goods and services, and in particular not those goods and services that people regard as necessities, such as health care" (Miller 2003:200, emphasis added). To the degree that access to knowledge is such a necessity, claims based on need ought to take priority over claims based on desert. We can use Miller's pluralistic theory of social justice to determine if any process or outcome is consistent with social justice. When a process or outcome does not comport with any of Millers' principles, we can conclude that it is not consistent with social justice. That is, something is not consistent with Miller's conception of social justice if it interferes with one's necessities or hurts one's capacity to function, if it interferes with claims based on desert, or if it impedes equal opportunity or treatment. How Current Criminal Justice Publishing Is Inconsistent with Social Justice In this section of the paper, we utilize Rawls' and Miller's theories to determine if current publishing agreements in criminal justice are consistent with social justice. Here, we show how publishing in the criminal justice discipline is inconsistent with the Rawls' equal liberties principle, equal opportunity principle, and difference principle. Further, we illustrate how criminal justice publishing is inconsistent with Miller's principles of need, desert, and equality. We conclude by showing how open access publishing is more consistent with social justice. Equal Liberties Principle With regard to the relationship between open access and Rawls' equal liberties principle, international law suggests that all human beings have a right to knowledge. Further, human beings and societies have an equal right to benefit from advances in knowledge. And finally, all individuals have the right to benefit from their own work. Some of these rights are stated in at least three separate documents: (1) the Universal Declaration of Human Rights; (2) the International Covenant on Civil and Political Rights; and (3) the International Covenant on Economic, Social, and Cultural Rights. Starting with the Universal Declaration of Human Rights, Article 19 states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers" (emphasis added). Further, Article 27.1 reads: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits" (United Nations 1997c, emphasis added). Similar wording is found in Article 19.2 of the International Covenant on Civil and Political Rights. Article 19.3 of that document shows clearly that restrictions on this right merely for economic gain are not acceptable: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: For respect of the rights or reputations of others; For the protection of national security or of public order, or of public health or morals. (United Nations 1997a, emphasis added) Additionally, Article 13.1 of the International Covenant on Economic, Social, and Cultural Rights states: "The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace" (emphasis added). Article 13.2 adds that education should be free to all and generally available and accessible to all (United Nations 1997b, emphasis added). Another article, Article 15.1 goes on to explain: The States Parties to the present covenant recognize the right of everyone: To take part in cultural life; To enjoy the benefits of scientific progress and its applications; To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. (emphasis added). Finally, Articles 15.2-15.4 read: "The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture" (United Nations 1997b, emphasis added). From the above passages, it is clear the restricting access to knowledge is not consistent with the equal liberties principle. A more just arrangement would allow greater access to scholarship in order to assure the protection of the liberty of knowledge. Equal Opportunity Principle Similar to the argument above with regard to the equal liberties principle, all human beings are owed an equal opportunity to access scholarship. Restricting access to knowledge by limiting access to scholarship interferes with the realization of Rawls' principle of equal opportunity. The passages of international law cited above make it clear not only that do human beings enjoy the right to knowledge in all its forms, but also that this right is an equal right. The assertions found within the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights that everyone has the right to freedom of opinion and expression (including seeking, receiving and imparting information and ideas through any media and regardless of frontiers) and a right to equal education exemplifies the importance of equality. From the above passages, it is clear the restricting access to knowledge is not consistent with Rawls' equal liberties principle. A more just arrangement would allow greater access to equal opportunities in order to assure the protection of equal rights to knowledge. Difference Principle With regard to Rawls' difference principle, inequalities in access to information are clearly not to the benefit of the least advantaged. In fact, inequalities in access widen the gap between those who have access to information and those who do not, for the reason that some are permitted to further advance while some are not. This is true at the individual level, group level, community level, organization level, and society level. That is, differential access to information harms disadvantaged individuals, the groups and organizations to which they belong, the communities from which they come, and the societies of which they are members. The fact that publishing agreements benefit the well off - large, wealthy corporations - is not consistent with Rawls' difference principle. Nor is the inequality acceptable because the inequality is not explained by any differential claim based on merit or desert. Large corporate journal publishers have not done anything to earn the right to distribute knowledge created by the scholarly pursuits of individual authors, who would seem to have the most sound merit- and desert-based claims to reward. Additionally, large corporate journal publishers have not earned the right to limit access to this knowledge. Finally, state and federal governments, who fund scholarship of individual authors through salaries, benefits, and grants, deserve access to the scholarship produced by authors. Current publishing arrangements in criminal justice do the most harm to those who are already least advantaged. The least advantaged include those suffering from criminal victimization at the hands of common street criminals and elite individuals and corporations, as well as the mostly reactive and failing agencies of criminal justice (Robinson 2005; Shelden 2000). If criminologists and criminal justicians are to actually impact policy through their scientific work, it must be made accessible to all, especially to those who can most benefit from their work (e.g., policy-makers and the masses who elect them into power). The normal game and expectation of publishing for the sake of publishing must be challenged if our research is ever going to impact real-world policy. Current criminal justice publishing arrangements are inconsistent with Rawls' difference principle. Need Given the general purposes of science, access to knowledge assists people with their own personal and professional advancement and thus the ability to satisfy their basic needs. An example is higher education which allows its participants to better meet their own needs. Differential access to education, which includes access to knowledge, interferes with people's basic abilities to satisfy their needs and is thus inconsistent with Miller's principle of need. At the society level, with advancement of individual citizens comes a greater enjoyment of benefits by a larger segment of the population. Thus, differential access to information harms societies by interfering with the ability of societies to advance. Ultimately, this leads to the maintenance of significant gaps between first- and third-world countries. In terms of research into crime and responses to it, differential access to knowledge generated by experts assures that the needs of some will not be met as readily as others. Restricting access to criminal justice scholarship interferes with the ability of criminal justice agencies and their employees to adjust, rethink, and retool their existing policies, as well as to create new and more effective ones. Thus, current criminal justice publishing arrangements are inconsistent with Miller's principle of need. Desert As noted above, all human beings deserve access to knowledge. Thus, any interference with this right is unjust. Publishing arrangements that restrict access to information people deserve by way of being human beings as well as citizens is not consistent with social justice. Criminal justice publishing agreements interfere with Miller's principle of desert. Further, international law shows that scholars in all fields (including criminal justice) have earned the right to access the knowledge they create as well as that being created by others in their fields. The current publication approach in criminal justice makes such access impossible, as authors often must assign copyrights to publishing giants that limits the use of and access to their own work. Further, we all suffer from not being able to access articles and other works unless we subscribe to certain journals and pay fees to do so. None of this is consistent with social justice. Scholars, as the creators of the knowledge published in our associations' journals, deserve the right to publish their work freely, to access it later without restriction, and to make their work as widely available as possible through self-archiving. Beyond this, authors are not benefiting financially from their work by assigning copyrights to large corporations. Instead, large corporations are benefiting - not because of claims rooted in differential desert or merit - but instead from their already prominent place in society. This is also inconsistent with Miller's principle of desert. While large journals publishers assist with the dissemination of scholarship to large audiences - a practice beneficial to academic societies as well as society in general - any restrictions on the accessibility of this scholarship are inconsistent with social justice. Equality As suggested above, access to knowledge in the current approach is arranged in an unequal fashion. Subscription policies are unequal in terms of who benefits from them, and societal inequality is being widened by them. These are violations of Miller's equality principle. People of the United States, as citizens, enjoy certain equal rights. And as human beings, we enjoy other rights as well, including those found in the international agreements discussed above. Citizens in other countries have these same human rights. Current criminal justice publishing rules and procedures violate these rights and are thus violations of Miller's equality principle. Finally, related to each of the above principles, limited access to knowledge assures that our work will have less influence on real-world policy. Even those few journals that have been created in order to explicitly be policy-relevant are not widely read by policy- makers, in part because they are not accessible to them. One outcome of this limited access is a continuation of criminal justice policy being created for ideological and philosophical reasons rather than being impacted and directed by scientific evidence. This assures further suffering for members of society at the hands of both criminals and criminal justice agencies, for current criminal justice practices do not significantly reduce criminal victimization nor do they often achieve justice (Reiman 2006; Robinson 2005; Shelden 2000). How Open Access Is Consistent with Social Justice The open access movement - online open access journals and author self-archiving - is more consistent with the conceptions of social justice by Rawls and Miller. Because open access does not interfere with any person's indefensible claims to equal basic liberties (the "equal liberties principle"), it is consistent with social justice. Further, open access does not violate the "equal opportunity principle" and in fact assures for greater equality of access to information. We also believe that open access is to the greatest benefit of the least-advantaged and thus is consistent with the "difference principle." That is, open access publishing aims to benefit all equally, which over time, will assist the least advantaged in catching up to the most well-off in society (who have long benefitted from greater access to knowledge in all areas of life). Additionally, open access does not interfere with anyone's necessities and does not hurt anyone's capacity to function. Open access also does not interfere with desert (but instead rewards it to a higher degree) and does not impede equal opportunity or treatment. Therefore, open access is consistent with social justice. Beyond not violating the principles of social justice posited by Rawls and Miller, open access advances the principles of justice found in these scholars' theories of social justice. It does this by promoting (in both theory and practice) liberty, opportunity, and equality of access to information for all, as well as proper reward for individuals who produce scholarship. It is also better able to meet the needs of citizens for information, as well as meet appropriate claims of merit by scholars who deserve it. Open access also is consistent with the international laws the US has signed and to which it is bound. Conclusion In this paper, we outlined the open access movement, introduced two main theories of social justice, and applied the main principles from the theories of social justice to the modus operandi of criminal justice publishing. By doing so, we determined the specific ways in which current criminal justice publishing practices are inconsistent with social justice. Our main finding was that publishing in the criminal justice discipline is inconsistent with John Rawls' equal liberties principle, equal opportunity principle, and difference principle, as well as David Miller's principles of need, desert, and equality. Finally, we concluded that open access publishing is more consistent with social justice. It is a crucial time in the evolution of publishing for criminal justice associations. We, as criminal justice scholars concerned with practicing justice ourselves, have the opportunity to set an example for other disciplines in the area of open access. This can entail moving toward opening access to our own journals as much as possible, educating association members on open access alternatives, and making articles already published in subscription-based journals open access by encouraging our members to self-archive them in e-repositories. References • 1. Bailey, C. W. (2006) Spec Kit 292; institutional repositories, July 2006 Association of Research Libraries , Washington, DC • 2. Berry, B. (2005) Why social justice matters Polity Press , Cambridge, MA • 3. Brighouse, H. (2005) Justice (key concepts) Polity Press , Cambridge, MA • 4. Chou, M. and Zhou, O. (2005) Licensing: the impact of licenses on library collections.. The Acquisitions Librarian 17:(33/34) , pp. 7-23. • 5. Davis, P. M. - Revised December 5, 2005. Retrieved February 16, 2007, from http://people.cornell.edu/pages/pmd8/prices.pdf • 6. - "The Economics of Publishing," University of California Office of Scholarly Communication Website. Retrieved February 2007, from http://osc.universityofcalifornia.edu/facts/econ_of_publishing.html • 7. Harnad, S. (2004) The access/impact problem and the green and gold roads to open access.. Serials Review 30 , pp. 310-314. • 8. Harnad, S. and Brody, T. (2004) Comparing the impact of open access (OA) vs. non-OA articles in the same journal.. D-Lib Magazine 10:(6 June 2004) - Retrieved 16 February 2007, from http://www.dlib.org/dlib/june04/harnad/06harnad.html • 9. Lenzini, R. (2006) - Information Today, posted on 27 November 2006. Retrieved 18 February 2007 from http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=18698 • 10. McCabe, M. J. (2002) - ARL Bimonthly report 207 • 11. Miller, D. (2003) Principles of social justice Harvard University Press , Boston • 12. Rawls, J. (2003) Justice as fairness: A restatement (2nd rev. ed.), Belknap Press , Boston • 13. Reiman, J. (2006) The rich get richer and the poor get prison: Ideology, class, and criminal justice (8th ed.), Allyn & Bacon , Boston • 14. Robinson, M. (2005) Justice blind? Ideals and realities of American criminal justice (2nd ed.), Prentice Hall , Upper Saddle River, NJ • 15. Shelden, R. (2000) Controlling the dangerous classes: A critical introduction to the history of criminal justice Allyn & Bacon , Boston • 16. United Nations (1997a) - Retrieved 16 February 2007, from http://www.hrweb.org/legal/undocs.html • 17. United Nations (1997b) - Retrieved 16 February 2007, from http://www.hrweb.org/legal/undocs.html http://people.cornell.edu/pages/pmd8/prices.pdf http://osc.universityofcalifornia.edu/facts/econ_of_publishing.html http://www.dlib.org/dlib/june04/harnad/06harnad.html http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=18698 http://www.hrweb.org/legal/undocs.html http://www.hrweb.org/legal/undocs.html • 18. United Nations (1997c) - Retrieved 16 February 2007, from http://www.hrweb.org/legal/undocs.html • 19. Willinsky, J. (2006) The access principle; the case for open access to research and scholarship MIT Press , Cambridge, MA Notes 1. See Lenzini 2006. 2. See the "The Economics of Publishing," University of California Office of Scholarly Communication Website. Retrieved February 2007, from http://osc.universityofcalifornia.edu/facts/econ_of_publishing.html 3. See the American College and Research Libraries "Scholarly Communications Toolkit" for more information on journal inflation. http://www.ala.org/ala/acrl/acrlissues/scholarlycomm/scholarlycommunicationtoolkit/fac ulty/facultyeconomics.cfm 4. "$3,000-a-year journal subscriptions endanger major sources of research information, Cornell panel says," Cornell News. February 24, 1999. Retrieved February 18, 2007, from http://www.news.cornell.edu/releases/Feb99/JournalPrices.bpf.html 5. Kline Science Library MOST EXPENSIVE JOURNALS. Retrieved February 15, 2007, from http://www.library.yale.edu/scilib/ksljrnlexp98.html 6. EBSCO Information Services, produced a chart that shows price fluctuations for 2000- 2005 for typical library lists invoiced in US dollars. Retrieved February 19, 2007, from http://www-us.ebsco.com/home/printsubs/priceoverview.pdf 7. Taylor & Francis (2007). Journal details, Justice Quarterly. Retrieved 17 February 2007, from http://www.tandf.co.uk/journals/journal.asp?issn=0741-8825&linktype=rates 8. Taylor & Francis (2007). Journal details, Journal of Criminal Justice Education. Retrieved 17 February 2007, from http://www.tandf.co.uk/journals/journal.asp?issn=1051-1253&linktype=rates 9. Blackwell Publishing (2007). Criminology. Retrieved 17 February 2007, from http://www.blackwellpublishing.com/subs.asp?ref=0011-1384&site=1 10. A key web-based reference source was created and is maintained by Peter Suber. It provides a thorough "guide to the terminology, acronyms, initiatives, standards, technologies, and players in the open-access or free online scholarship (FOS) movement" is the Guide to the Open Access Movement (http://www.earlham.edu/peters/fos/guide.htm). For another excellent source of basic information on open access initiatives and changes in scholarly communication, see the "Create Change" website (http://www.createchange.org/)developed by the Association of http://www.hrweb.org/legal/undocs.html http://osc.universityofcalifornia.edu/facts/econ_of_publishing.html http://www.ala.org/ala/acrl/acrlissues/scholarlycomm/scholarlycommunicationtoolkit/faculty/facultyeconomics.cfm http://www.ala.org/ala/acrl/acrlissues/scholarlycomm/scholarlycommunicationtoolkit/faculty/facultyeconomics.cfm http://www.news.cornell.edu/releases/Feb99/JournalPrices.bpf.html http://www.library.yale.edu/scilib/ksljrnlexp98.html http://www-us.ebsco.com/home/printsubs/priceoverview.pdf http://www.tandf.co.uk/journals/journal.asp?issn=0741-8825&linktype=rates http://www.tandf.co.uk/journals/journal.asp?issn=1051-1253&linktype=rates http://www.blackwellpublishing.com/subs.asp?ref=0011-1384&site=1 http://www.informaworld.com/smpp/jump%7Ejumptype=exref%7Efrompagename=section%7Efrommainurifile=section%7Efromdb=all%7Efromtitle=713721714%7Efromvnxs=v19n1s7%7Econs=791088497?dropin=httpwwwearlhamedupet_223cpng&to_url=http%3a%2f%2fwww%2eearlham%2eedu%2f%26%238764%3bpeters%2ffos%2fguide%2ehtm http://www.createchange.org/ Research Libraries (ARL) and SPARC (Scholarly Publishing and Academic Resources Coalition) which is supported by the Association of College and Research Libraries (ACRL), all retrieved 18 February 2007. 11. The Association of Learned and Professional Society Publishers reported that sixty percent of publishers participate in some form of assistance program to aid developing countries. Willinsky 2006:78). 12. The Directory of Open Access Journals (DOAJ) (http://www.doaj.org/)freely available on the web, is maintained by Lund University Libraries. It is the most important directory of open-access journals, and currently contains over 2,500 journals. The aim of the DOAJ is to "increase the visibility and ease of use of open access scientific and scholarly journals thereby promoting their increased usage and impact." It "aims to be comprehensive and cover all open access scientific and scholarly journals that use a quality control system to guarantee the content." 13. A keyword search in the Directory of Open Access Journals (DOAJ) for journals related to criminal justice excluding the term law conducted in January 2007 revealed the following 12 open-access journals in criminal justice: (1) African Journal of Criminology and Justice Studies, (2) Applied Psychology in Criminal Justice, (3) Champ Penal (French/English), (4) Edwardsville Journal of Sociology, (5) ERCES Online Quarterly Review, (6) International Journal of Criminal Justice Sciences, (7) Journal for Crime, Conflict and Media Culture, (8) Journal of Criminal Justice and Popular Culture, (9) Law, Social Justice & Global Development, (10) Revista CENIPEC (Spanish (11) Revista Española de Investigación Criminológica (Spanish), and (12) War Crimes, Genocide and Crimes Against Humanity. 14. SPARC, the Scholarly Publishing and Academic Resources Coalition, http://www.arl.org/sparc/ is "an alliance of universities, research libraries, and organizations. The coalition was an initiative of the Association of Research Libraries (ARL) started in 1997 to be a constructive response to market dysfunctions in the scholarly communication system" 15. See the SHERPA database of individual publishers' policies on permissible self- archiving at http://romeo.eprints.org/ 16. See description of the Federal Research Public Access Act of 2006 (FRPAA) Bill at http://cornyn.senate.gov/public/index.cfm?FuseAction=Home.SiteMap 17. A major organization is this struggle is the The Alliance for Taxpayer Access which is described on their website as: "A diverse and growing alliance of organizations representing taxpayers, patients, physicians, researchers, and institutions that support open public access to taxpayer-funded research." See http://www.taxpayeraccess.org/ (retrieved February 20, 2007) http://www.doaj.org/ http://www.arl.org/sparc/ http://romeo.eprints.org/ http://cornyn.senate.gov/public/index.cfm?FuseAction=Home.SiteMap http://www.taxpayeraccess.org/ 18. Rawls (2003:5-6) develops his theory for a democratic system of government, and he assumes that society comprises a fair system of social cooperation between free and equal citizens. He also assumes that society is well organized and regulated by a public perception of justice. Further, he assumes that society is guided by rules and procedures that are publicly recognized and agreed to, that the rules specify fair terms of cooperation and are rooted in the notion of reciprocity or mutuality so that each person has a chance to promote their own advantage or good. Thus, his theory is aimed at determining the "political conception of justice for specifying the fair terms of cooperation between citizens regarded as fair and equal and as both reasonable and rational (Rawls, 2003:7-8). 19. This can be called the "equal liberties principle." 20. This can be called the "equal opportunity principle." 21. Rawls calls this the "difference principle." 22. For other examples, see the Universal Declaration of Human Rights, Covenant on Civil and Political Rights, Covenant on Economic, Social, and Cultural Rights, and other similar documents. "A Summary of Agreements on Human Rights." Retrieved 5 January 2007, from http://www.hrweb.org/legal/undocs.html 23. Miller (2003:4-6) develops his theory for a democratic system of government, and he assumes that society is a living organism comprised of individuals, groups, and so forth who believe in social justice because it specifies the institutional arrangements that allow for full contributions by and well-being of members of the society. Further, his theory assumes a bounded society with members; that there are specific institutions to which the principles of social justice apply; and that the state is the agency capable of changing structures when necessary. http://www.hrweb.org/legal/undocs.html 
work_zfzl3mczfnbjfbqrn42nvmygzy	----	80 ISSN-2162-3104 Fall 2011 Vol.1 Issue 2 Journal of International Students exercises and answer keys, plagiarism quizzes, and a writing glossary are offered through the book’s website. A large number of students from various parts of the world travel to study in the U.S., the U.K., and other destina- tions every year. In the ESL and Making Connections class- es, teachers find the writing proficiency of international stu- dents very low (Firkins, Forey & Sengupta, 2007; Kuo, 2011; Sawir, 2005) Sometimes students assume wrongly that teach- ers are sympathetic to their writing styles because English is not their native language. Despite the cultural and linguistic differences, all students are required to write college essays, reports, and reflections as clearly and accurately as possible through the use of Standard English. Using Bailey’s Academic Writing, college freshmen and ESL international students can articulate college writing skills that include learning critical approaches to writing that avoid plagiarism, use appropriate citations and references, and techniques for re-writing and proof-reading manuscripts. The book also offers practical examples of writing a curricu- lum vitae, formal letters, emails, reports, case studies, and extended essays. The author has taught for several years in the U.K., the Czech Republic, Japan, Malaysia, and Spain. As a result, readers might experience British instead of American writing styles. For instance, samples of résumés and curricula vitae, references and citations may vary between the two writing patterns. From a student perspective, Academic Writing, how- ever, is precisely written with plenty of examples and illus- trations. Both international students and their teachers can find this book helpful at all levels of teaching and writing. References Firkins, A., Forey, G., Sengupta, S. (2007). Teaching writing to low proficiency EFL students. ELT Journal, 61(4), 341 352.doi: 10.1093/elt/ccm052 Sawir, E. (2005). Language difficulties of international students in Australia: The effects of prior learning experience. International Education Journal, 6(5), 567-580. Kuo, Y. (2011). Language challenges faced by inter national graduate students in the United States. Journal of International Students, 1 (2), 38-42. ___________________________________________ About the Reviewers: Krishna Bista and Pamela Shultz are editorial board mem- bers of Journal of International Students at the Center for Excellence at Arkansas State University. Strategic Finance for Criminal Justice Organizations. Daniel Adrian Doss, with William Sumrall, III and Don Jones (2011). CRC Press, 272 pages $99.95 ISBN: 9781439892237 Reviewed by Ernest C. Fields, PhD Law enforcement professionals are trained to systemat- ically approach criminal justice. Few, however, are ever trained in the world of finance and strategic decision-making, and they are therefore uncomfortable navigating through the complex world of organizational budgeting and planning. Doss, Sumrall, and Jones have tackled this gap in traditional criminal justice education with Strategic Finance for Criminal Justice Organizations. The authors bring a strategic management approach to criminal justice organizations. In particular, this book provides a quantitative analysis of the strategic attributes of financial deci- sions. Written for the law enforcement student and professional, the text demonstrates the use of budgeting techniques and rede- fines capital budgeting as a determining factor in the effective- ness of law enforcement agencies as they fulfill their missions. The authors call upon their diverse backgrounds as they attempt to open up the often Byzantine world of financial decision-making to the criminal justice professional. Intended to be more than a financial budgeting workbook, the text delves into quantitative methods usually reserved for the corporate boardroom. The criminal justice professional is provided a solid foundation in capital decision-making and in the concepts that make for successful strategic financial management. Like every other sector of the economy, those in public administration face the basic economic problem of nearly unlim- ited demands that must be met with extremely limited resources. The concepts of scarcity and accountability reign throughout the world of criminal justice and public administration, and this book follows the same course. Those tasked with making strate- gic decisions must not only juggle the demands of various stake- holders, they must also fulfill their agency’s mission. Too often, the leaders of these agencies find themselves ill-equipped to delve into the world of corporate finance. The book provides real-world examples of the financial principles under discussion. Each chapter introduces theory but quickly moves into relatable examples of the principles at work. With this approach, solutions to problems are demonstrated in a straightforward fashion. The examples assume that readers have little existing knowledge of corporate or non-profit finance and should be helpful to the non-finance student. The authors begin with a discussion of finance and how money works. Emphasis is placed upon finance as part of the strategic planning process of an organization, and special atten- tion is given to understanding the important place of finance in fulfilling the organization’s mission. Space is also allotted to considerations of the decision-making process within companies and organizations, again with special emphasis on strategic financial planning. The book satisfies the academic need to introduce the- ory while providing relevant real-world application. It provides a logical progression through the world of organizational finan- cial decision-making, and is geared to the non-finance major. It also provides insight into strategic best practices and is adaptable to audiences at the local, regional, and international levels. _________________________ About the Reviewer: Dr. Fields, Jr., is an Adjunct Associate Professor at the University of Memphis and he teaches Education courses at Belhaven University. 
work_zgr6owkvprfa7o54eqcaz4bmvu	----	Children for Social Justice Copyright ©, 2012 Jeff McCrossin Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 22:20 First Peoples Child & Family Review An Interdisciplinary Journal Honouring the Voices, Perspectives, and Knowledges of First Peoples through Research, Critical Analyses, Stories, Standpoints and Media Reviews Children for Social Justice Jeff McCrossin Volume 7, numéro 1, 2012 URI : https://id.erudit.org/iderudit/1068864ar DOI : https://doi.org/10.7202/1068864ar Aller au sommaire du numéro Éditeur(s) First Nations Child and Family Caring Society of Canada ISSN 1708-489X (imprimé) 2293-6610 (numérique) Découvrir la revue Citer cet article McCrossin, J. (2012). Children for Social Justice. First Peoples Child & Family Review, 7(1), 40–51. https://doi.org/10.7202/1068864ar Résumé de l'article It is often assumed that children lack the developed capacity to understand complicated political issues (for example, Arendt, 1959; Pearce, 2011; and Warmington, 2012a, 2012b). This assumption is contested through a review of the literature examining adult conceptions the child, and children’s rights to political participation, citizenship, and direct representation (Steffler, 2009; Wall & Dar, 2011; Wyness, Harrison, & Buchanan, 2004). A variety of historical and contemporary examples of children engaging in social justice campaigns and movements are provided (Elshtain, 1996; Milstein, 2010; Smith, 2012; Traubman, 2005; Bergmar, 2010). A potential means for supporting children in social justice engagement is explored through social justice education (Dover, 2009; Kelly & Brooks, 2009). https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/fpcfr/ https://id.erudit.org/iderudit/1068864ar https://doi.org/10.7202/1068864ar https://www.erudit.org/fr/revues/fpcfr/2012-v7-n1-fpcfr05246/ https://www.erudit.org/fr/revues/fpcfr/ 40 First Peoples Child & Family Review An Interdisciplinary Journal Honoring the Voices, Perspectives and Knowledges of First Peoples through Research, Critical Analyses, Stories, Standpoints and Media Reviews Volume 7, Number 1, 2012, pp. Children for Social Justice Jeff McCrossin MSW Student, Carleton University, Ottawa, ON, Canada Abstract It is often assumed that children lack the developed capacity to understand complicated political issues (for example, Arendt, 1959; Pearce, 2011; and Warmington, 2012a, 2012b). This assumption is contested through a review of the literature examining adult conceptions the child, and children’s rights to political participation, citizenship, and direct representation (Steffler, 2009; Wall & Dar, 2011; Wyness, Harrison, & Buchanan, 2004). A variety of historical and contemporary examples of children engaging in social justice campaigns and movements are provided (Elshtain, 1996; Milstein, 2010; Smith, 2012; Traubman, 2005; Bergmar, 2010). A potential means for supporting children in social justice engagement is explored through social justice education (Dover, 2009; Kelly & Brooks, 2009). Introduction A recent Globe and Mail blog post (Pearce, 2011) asks readers to consider the “irresponsibility” of parents taking children to protests. Pearce (2011) reports that Toronto “City Hall was swarmed with a mini-army of babies, toddlers and children whose parents had brought them to protest potential cuts to city-run daycare programs.” This post raised questions about children’s right to protest, their capacity to understand political issues, and how adults conceptualize children. This article will attempt to respond to such questions by putting common concerns regarding children and political action into the context of social justice. As indicated by Pearce (2011) and others (Arendt, 1959; Warmington, 2012b), some facets of society consider the child to be a blank slate, isolated in the private or familial world without the developed capacity to make sense of complicated political issues. Instead, the position taken in this article is that children are already political individuals influenced by private and public spheres through interdependence with adults in their lives (Elshtain, 1996; Kelly & Brooks, 2009; Milstein, 2010; Wall & Dar, 2011). Children have the right to make a difference through political participation, citizenship, and direct representation (Wall & Dar, 2011). As will be discussed below, children throughout history have shown their capacity to break new ground toward equity and social justice. Conceptual models of the child will also be discussed in relation to how adults view children engaged in social justice. Additionally, social justice education will be examined, through a limited review of the literature, as a potential means for advancing social justice engagement for children. Finally, arguments will be made for a wider interpretation of children’s rights in relation to political power. Corresponding author: Jeff McCrossin, jeff.mccrossin@gmail.com 40-51 41 First Peoples Child & Family Review, Volume 7, Number 1, 2012 Children Engaging in Social Justice Children were on the front lines in the movement to end segregation in the southern United States. Responding to their involvement, political theorist Hannah Arendt (1959, cited in Elshtain, 1996) expresses concern that adults are ridding themselves of their responsibility to provide guidance to children. She asks, “Have we now come to the point where it is the children who are being asked to change or improve the world? And do we intend to have our political battles fought out in the school yards?” (Arendt, 1959, p. 50). She wonders how children could be charged with the task of integration if generations of adults were unable to quell the unrest between the black and white communities in the south. Arendt’s (1959) argument is entrenched in her vision of isolated private, public, social, and political spheres. Children, according to Arendt, should exist only in the private sphere, protected under parental guidance. Elshtain (1996) reiterates Arendt’s fear that, If parents collapse, or are stripped of their authority in relation to children, the result will be more conformism of children with their peer group, or age cohort, and a growing homogenization of society. Those capable of resisting will likely be few and under tremendous pressure to succumb to the wider surroundings (p. 15–16). In Arendt’s (1959) view, only adults are able to be individuals as children are incapable of resisting conformity. Arendt appears to see children as benighted vessels for which parents and educators needed to provide teachings relative to the world in which they were born. According to Elshtain (1996), Arendt despised progressive education “in which children are enjoined to create their own environment for learning, free from adult authority” (p. 17). She felt that this type of education encouraged abandonment and betrayal of children. Arendt provides examples of children and youth being used as a political force by Hitler during the Second World War. These children under Hitler’s command were “intimidating, shaming, humiliating, betraying, and exposing adults, their own parents and teachers, for insufficient ideological ardor” (Elshtain, 1996). Arendt later concedes that black children of the south were in a dissimilar position from Jewish children in Nazi Germany. The context and outcomes were clearly different. A more recent criticism of children actively engaging in social justice campaigns (and more outspoken than that of Pearce, 2011) appeared online in May 2012 in Sun News, the right-wing media organization website. Joe Warmington (2012b) reports about young students from The Grove Community Alternative School in Toronto engaged in a project raising concerns over the proposed Enbridge pipeline in western Canada. The children crafted a pipeline showing potential negative social and environmental impacts of the Enbridge pipeline and put it on public display. The story includes a quote from the school’s press release for the event, “Children have a strong sense of justice and empathy.… They recognize the unfairness of putting a pipeline through indigenous territory without consent.” In a similar report, the same author alleged that the teacher, “with ear rings and a ring through his nose,” was “indoctrinating” the students (Warmington, 2012a). He further argues that, at eight years old, children should not be aware of social injustice, “or have an opinion on anything” (Warmington, 2012b). However, being unaware of social injustice does not preclude capacity to understand it (Wyness et al. 2004). Warmington (2012b) suggests that perhaps the Children’s Aid Society should be notified, implying that the teacher’s efforts to promote social justice education were abusive in nature. Although Warmington provides no evidence to legitimize his claims, he argues that his position reflects that of hundreds of readers who are “disgusted” by this alleged abuse of children (2012b). © Jeff McCrossin 42 Regardless of whether adults accept the idea of children as political individuals, examples of children engaging in inherently political social justice campaigns span the globe, and date back over 100 years. In 1903, Mother Jones marched 125 miles with 300–500 children to the summer home of then President Theodore Roosevelt to protest wages and conditions of child labour (Elshtain, 1996). This is in opposition to Arendt’s (1959) notion that children should not be dragged into the public realm. But in this case, Elshtain notes, “children [were] politicized, drawn into protests, strikes, marches and potential danger in order that they may return to the schools, neighborhoods and playgrounds where they belong” (p. 20). Mother Jones showed that the children were already in full view of the public; their political actions were necessary to achieve greater social justice. Mother Jones’s message to her critics (related by Elshtain, 1996, p.20): “You think taking children on protests is shameful? No, it is shame that drives them to protest.” Elshtain (1996) also describes the “Children’s Miracle” of 1963, where children in Birmingham, Alabama, protested in support of desegregation. The children, as young as six years old, refused orders by police to disband and were led to prison cells. Elshtain describes the cascading effect of the actions taken by these children: The campaign gained momentum. Soon 958 children had signed up indicating their willingness for jail and some 600 were in custody. Protest speakers extolled the courage of children. More children took to the streets and parks. Scenes of children being hit by projectiles of water from firehoses and lunged at by police dogs helped to galvanize the American conscience (p. 21). While the white leaders of Birmingham were concerned that children were being used as political tools, Martin Luther King Jr. praised the courage shown by the children for standing up for what they believed in. In Pakistan, Iqbal Masih began working as a debt slave in a carpet factory when he was about five years old (Bergmar, 2010). Iqbal became known around the world for standing against those who forced him into child labour and for successfully encouraging other children to join him. Iqbal was murdered under mysterious circumstances in 1995, but was posthumously awarded the World Children’s Prize for the Rights of the Child (Bergmar, 2010) and was the inspiration for child-activist Craig Kielburger, founder of Free the Children, an international charitable organization that builds schools (among other initiatives) in developing nations (Steffler, 2009). In May 2012, children in Israel stood against the massacre of 50 Syrian children during that country’s ongoing civil war (Benari, 2012). The children held a candlelight vigil outside the Russian embassy in Tel Aviv, signifying an understanding of complex global politics. In Buenos Aires in 2004, a class of fifth-grade children (ages 10–15) managed to get their teacher dismissed after she had mistreated a number of students (Milstein, 2010). Other teachers and staff at the school initially dismissed that particular class of children as being “difficult,” “undisciplined,” and having “learning problems.” Despite coming from poor neighbourhoods and struggling academically, the students demonstrated their capacity to understand that they were being treated unjustly. In response to repeated acts of violence toward them, the students held a protest in their classroom with rhythmic clapping and shouts of “Justice!” akin to frequent local “street mobilizations” in which community members had demanded solutions to violence against youth (Millstein, 2010, p. 139). Their collective action in the classroom that day gathered the support of their parents, other teachers, and the headmistress of the school, leading to the dismissal of their teacher. Milstein attributes much of the students’ success to “taking their Children for social justice First Peoples Child & Family Review, Volume 7, Number 1, 2012, pp. 40-51 43 First Peoples Child & Family Review, Volume 7, Number 1, 2012 problem out of the ‘private’ classroom and into the ‘public’ school,” thus extending the range of their voices. In 2005, a group of children of foreign workers in Israel attended a Supreme Court hearing regarding a petition for their legal residency status (Traubman, 2005). Children participating in these legal hearings received experiential learning opportunities, through exposure to the court system, but also through challenging inequitable systems of power. In a similar fashion in February 2012, hundreds of Canadian elementary and high school students, supported by their teachers and families, attended a Federal Court judicial review of a human rights case regarding First Nations child welfare. In a coordinated gathering on Parliament Hill, they delivered letters objecting to inequality in First Nations child welfare, health care, and education to their political representatives (Smith, 2012). Shannen Koostachin, from the Attawapiskat First Nation in Northern Ontario, began a campaign in 2008 for equitable education for First Nations children (About Shannen, 2012). Though only 12 years old, Shannen understood that First Nations children were not being treated fairly, and led hundreds of children from across Canada into peaceful action through speeches, letter writing, and social media. Shannen passed away in 2010, but thousands of child and adult supporters have joined the social justice campaign called Shannen’s Dream (About Shanne, 2012), perpetuating her efforts. It was estimated that over a thousand school-aged children gathered on Parliament Hill (and in 50 communities across the country) on June 11, 2012 in support of Shannen’s Dream and a number of other campaigns facilitated by the First Nations Child and Family Caring Society of Canada for a walk dubbed the Our Dreams Matter Too (Blackstock, 2012). On the fourth anniversary of the Prime Minister’s apology for Residential Schools (Harper, 2008), the crowd of First Nations and non-Aboriginal children stood in solidarity to deliver letters they had written, asking the government to provide equitable services—including those related to health, education, and child welfare—to all children within Canadian borders. Four years after the apology, First Nation children and families continue to be treated as second class citizens by the Government of Canada. This protest took an inherently different approach to instigating change than those initiated by adults. Rather than debating how legislation such as the Indian Act should change, or discussing the complicated relationship between First Nations and the Government of Canada, the children articulated their concerns on the basis of values, such as equality, fairness, and non-discrimination. Children in attendance also received messages of solidarity between First Nations and non-Aboriginal Canadians, rather than charity or pity that would perpetuate a false hierarchy. Contradictions in Acceptance of Political Children How can we commend children engaged in social justice campaigns such as those led by Mother Jones, Martin Luther King Jr., and young leaders such as Shannen Koostachin and Iqbal Masih, while vehemently opposing political actions of children led by genocidal tyrants like Hitler, Pol Pot, Qaddafi, and others? Elshtain (1996) explains that the contexts are distinct: We blanch when we see children giving a Nazi salute. We are moved when we see children singing hymns and marching off to jail in a desegregation protest. Are we bereft of ways to adjudicate these and other cases of political children? Does it come down to whether we are pro- Nazi or anti-segregation? (p. 23). © Jeff McCrossin 44 In some circumstances, such as the Children’s Miracle of 1963, children display incredible “clear sighted political courage;” in others, “fear and ferocious zealotry” (Coles, 1967 as cited in Elshtain, 1996, p. 20–21). Young anti-abortion protesters are key contemporary examples of children engaged in political action that is disapproved by the more liberal base of western society (Elshtain, 1996). As a subject of political action, abortion is more morally ambiguous than desegregation in schools. According to Elshtain, the response of critics opposing young anti-abortion protesters has been similar to that of those opposing segregation. There appear to be fears that children do not have the capacity to be pro-choice or pro-life, and are being inappropriately led or even abused by the adult anti-abortionists. Elshtain (1996) criticizes this approach to framing the argument: The mistake pro-choice critics of pro-life child protesters make in all of this is their politically repressive embrace of the language of ‘child abuse’ and their representation of these children as manipulated automatons with ‘no concept of what they’re doing,’ (p. 23). An argument such as this directly contradicts those made by the liberal base for including children in those social justice movements which they support. Furthermore, arguing that children are being brainwashed into joining anti-abortion protests contradicts evidence that children have the capacity to develop their own political opinions (Wyness et al. 2004). It would appear that, contrary to Arendt’s (1959) concern of shedding public light on children, the primary issue with children being engaged in social justice action rests within the particular campaign and the manner in which children are engaged. Elshtain (1996) rejects Arendt’s notion that children exist within isolated spheres, waiting to be led into one or another by the adults in their lives. She acknowledges that adults clearly can and do have an impact on children, but in a manner that merely influences—not controls—the pre-existing public, private, political, and social aspects of a child’s life. Assuming complete innocence and naivety of children serves only to devalue a major facet of society and slow progress of social justice efforts. Wyness et al. (2004) note that “innocence equates to vulnerability, which legitimates children’s political exclusion and adults’ right to talk on behalf of children” (p. 85). Kelly and Brooks (2009) describe the protection of childhood innocence as an oft-cited concern that prevents new teachers from engaging young children in social justice education. The authors argue against this notion that children are blank slates: “children’s identities are culturally produced” which, “emphasizes that they are active in this process, not just passively taught ideas and values by adults” (Kelly & Brooks, 2009, p. 204). Furthermore, assuming innocence of a child creates concerns around engagement and participation. Wall and Dar (2011) explain: “The danger in assuming that every word the child speaks is unfiltered and unmediated by those around her and is the only way of getting at a child’s perspective, complicates the understanding of what participation of children can really include” (p. 380). Models of the Child To develop a hypothesis of whether children should be involved in or educated for social justice, or to defend such a hypothesis, it is necessary to examine how the child is viewed by power-wielding adults in the public sphere (Wyness et al. 2004). The concept that children are benighted vessels, or blank slates is entrenched throughout society, often in the context of childhood innocence and through the several models of the child in relation to social justice (e.g., the universal child, the child as savior/victim, the colonized child, and the globalized child Children for social justice First Peoples Child & Family Review, Volume 7, Number 1, 2012, pp. 40-51 45 First Peoples Child & Family Review, Volume 7, Number 1, 2012 as described by Steffler, 2009). Examining these models permits us to explore how adults view children in political contexts. The universal child Despite convincing arguments suggesting that children are political individuals with the capacity to be active citizens (Elshtain, 1996; Wall & Dar, 2011; Wyness et al. 2004), the universal child model is persistently used by literary, political, and cultural forces as a symbol to “erase national borders in order to teach and promote equality and social justice” (Steffler, 2009, p. 113). This model uses children’s characteristics such as innocence, fragility, and universality to allow the consumer of the model to relate to the child. The universal child is frequently displayed as a victim and exploited to evoke empathy in campaigns to end famine, war, and poverty (Steffler, 2009, p. 113). The child as saviour In the model of child as saviour, the child is considered morally superior to adults, and is placed in a position to make a difference where adults have otherwise failed (Steffler, 2009). The child takes it upon him- or herself to “save society.” While commendable, Steffler warns the danger “…is the valorization, entrenchment, and prolonging of the Canadian child as the enlightened donor, which requires, of course, the continued positioning of the “other” child as recipient” (p. 119). Steffler (2009) reviews the concept of children saving children, citing Craig Kielburger as a prime Canadian example. As a 12-year-old child, Kielburger founded Free the Children. He was inspired to create the organization after learning about Pakistani child-labourer Iqbal Masih. The organization has received criticism for its “patronizing Christian overtones in the disturbing discourse of Masih as martyr/victim and Kielburger as savior/crusader” (p. 117). Furthermore, “the crusader empathizes with the labouring or needy victim, who tends to remain silent in his passive role as the “deserving” recipient of the activism” (p. 117). This interpretation supports a notion that children living in third world conditions are blank slates for sympathetic children in western nations to fill with their own perceptions of what the child should be: “Children saving children entrenches the dependent and colonial roles of donor and recipient, saviour and victim, in those seen by society as carrying the most potential and bearing the most suffering” (Steffler, 2009, p. 118). Moreover, the donor or saviour is often rewarded or recognized for acting in a moral way (Steffler, 2009). The colonized child Intrinsically linked to the child as saviour model, is the colonized child model (McGillis & Khorana, 1997). Children, according to McGillis and Khorana (1997), are “the most colonized persons on the globe” (p. 7). In this model, children do not share the same opportunity to succeed and impose their political will due to being colonized by adults (Wall & Dar, 2011). © Jeff McCrossin 46 The globalized child There is evidence of political and social influence from adults in Canadian children’s literature that perpetuates this colonization of children. Steffler (2009) provides an example of a Canadian author, Deborah Ellis, who writes children’s books with an international humanitarian theme. Ellis wrote fictional stories about children living in “desperate” situations in Malawi, Afghanistan, and Bolivia. While Ellis donated the proceeds to charities benefiting the children upon whom her stories are based, concerns have been raised over the appropriateness of the material. Steffler brought to light the potential for exploitation and misrepresentation of children’s voices, and complacency toward social action: … the donations potentially free the author and reader from any discomfort or guilt that may arise as a result of consuming the miseries of the real children upon whom the fictional children are based.…The recognition Ellis has received through the many awards and honours bestowed on her and her work … reflects a self-congratulatory “good” feeling of a public that believes it can vicariously make the world a better place through reading (p. 110).… There are problems inherent in such assumptions of identification and empathy, the most disturbing being the ease with which the reader is supposed to negotiate and flatten difference (p. 112). Rather than inspiring children to engage in action for social justice, these books and similar approaches to social justice education may only result in desensitization and apathetic reactions. Steffler (2009) argued that this is just one example in a recent trend to create the notion of the “globalized child” (p. 111) in children’s literature. The use of children’s books to push political agendas and “ideals of national citizenship” (Steffler, 2009, p. 111) is not a recently developed phenomenon. Steffler pointed to Canadian ideals of multiculturalism being widespread within children’s literature in the 1970s. Carpenter (1996, as cited in Steffler, 2009) found the attempt to shape the nation through imposing an outside representation of minority populations futile: … the attempt to promote the ideal “multicultural” Canadian citizen through didactic children’s literature naively assumes that children will enact what they read, are blank slates who passively receive culture because they have no culture of their own, and will automatically develop tolerance simply as a result of being informed (Carpenter 1996, cited in Steffler, 2009, p. 112). Social Justice Education Paulo Freire’s text, Pedagogy of the Oppressed (1970, interpreted in Van Gorder, 2008, p. 21), suggests that education systems need to provide opportunities for children to create a “‘world of possibilities’ instead of serving the status quo by imprisoning naturally inquiring and curious minds in cells of silence and submission.” Resulting from decades or even centuries of prejudicial social developments, social inequities are magnified by hegemonic classroom practices that reproduce and reinforce the cultural and educational traditions of white, middle-class communities at the expense of non-dominant cultures’ educational traditions” (Dover, 2009, p. 507). As described by Dover (2009), “teaching for social justice is the attempt by classroom teachers to use their position in the classroom to affect meaningful change within and despite current educational conditions and mandates” (p.  518). Dover lays out a conceptual framework for teachers for social justice. According to this framework, teachers must: Children for social justice First Peoples Child & Family Review, Volume 7, Number 1, 2012, pp. 40-51 47 First Peoples Child & Family Review, Volume 7, Number 1, 2012 (1) assume all students are participants in knowledge construction, have high expectations for students and themselves, and foster learning communities; (2) acknowledge, value, and build upon students’ existing knowledge, interests, and cultural and linguistic resources; (3) teach specific skills and bridge gaps in students’ learning; (4) work in reciprocal partnership with students’ families and communities; (5) critique and employ multiple forms of assessment; and (6) explicitly teach about activism, power, and inequity in schools and society (p. 518). Kelly and Brooks (2009) posit that education for social justice should be engaging and come from an anti-oppressive approach. It should be taught in a manner that enables teachers to “enact inclusive curricula and pedagogies while simultaneously adapting these to the cognitive, emotional, and political-evaluative capacities of their students” (p. 203). The authors state concerns over the use of the human relations approach to teach social justice. This approach manifests as anti-bullying interventions and teachable moments of tolerance or acceptance of difference. It presents issues such as racism as personal in nature instead of resulting from structural inequities. Rather than engaging students proactively in larger social change as active participants in citizenship, the human relations approach reactively addresses social justice concerns by taking a zero-tolerance approach to prejudicial attitudes, comments, or other behaviour without discussing thoughts and feelings from which they originated. This distinction between the human relations and anti-oppressive approaches, as described by Kelly and Brooks (2009), highlights the importance of defining social justice education in curriculum in order to have the greatest positive impact on children. Teachers have the duty to encourage students to critically explore their moral values and challenge their beliefs, even when in opposition to those of their parents (Kelly & Brooks, 2009). In a small study (n=12) of pre-service teachers in western Canada, Kelly & Brooks (2009) found that new teachers base their understanding of children’s capacity to understand political concepts on Piaget’s concept of readiness. The reliance on this concept has … unnecessarily helped to restrict the equity-related work that teachers envision by implying that it is developmentally inappropriate for younger children (Kelly & Brooks, 2009, p. 204). Some teachers in the cited study avoided “heavy” or “iffy” subjects (an example of an “iffy” subject was homosexuality), not only due to concerns of the students’ capacity, but also due to potential negative feedback from parents. This aversion to social justice education is contrary to research that “indicates that most parents and students support socially just content and policy” (Dover, 2009, p. 515). There is little, if any, evidence to suggest that young children lack the capacity to understand and handle issues of social justice (Kelly & Brooks, 2009), yet teachers and other adults frequently use models of the child described earlier to discredit their capabilities (Wyness et al. 2004). In the same study, teachers … perhaps paradoxically … explained that deliberate teaching about respect might be easier in the early grades, because children’s biases would be less “ingrained” (Kelly & Brooks, 2009, p. 213). Similar to a child’s right to direct political representation, it has also been argued that a child’s right to education should not be misconstrued as a parental liberty right (Grover, 2007), meaning parents do not have the right to dictate the addition of prejudicial, or exclusion of socially just, curriculum. Available research suggests, contrary to critics, that education for social justice builds on fundamental academic skills. In a literature review of the impact of education for social justice, © Jeff McCrossin 48 Dover (2009) found evidence of positive impacts in the areas of academia, behaviour and motivation, and attitudes. While Dover reported that the evidence available was commonly limited by small sample sizes, potentially confounding variables, and anecdotal in nature, he argued that education for social justice can be effectively integrated into standardized curricula. Furthermore, Dover argued that “comprehensive teaching for social justice is an integrated pedagogical, ideological, and curricular approach to teaching that includes rigorous content- based curriculum” and so, evidence found within studies of integrated social justice and other curriculum maintains its value. Examining the impact of social justice education is not straightforward because definitions and teachers’ understanding of social justice differ (Dover, 2009; Kelly & Brooks, 2009). Some scholars are concerned that the term “social justice education” has become trendy without a clear consensus on its definition or method of implementing it into curriculum (Kapustka, Howell, Clayton, & Thomas, 2009). Children’s Rights to Participation and Direct Representation The United Nations Convention on the Rights of the Child (UNCRC) provides guidance to states around the participation rights of children. According to the UNCRC, children have the right to be heard, to freedom of expression, thought and assembly, privacy, and access to information (United Nations Convention on the Rights of the Child, 1989). The Convention does not provide sufficient grounds for the political inclusion of children (Wyness et al. 2004). Terms often used by states in relation to a child’s capacity to understand and engage in politics and government are participation and citizenship. However, these terms may not be sufficient means for children to be active and engaged in social change. Wall and Dar (2011) suggest that both the terminology and the political systems that use them undermine the rights of children. Inherent in their argument is the belief that children need to have an increased role in the development of human rights policies through direct political power. The authors argue that children’s rights go beyond those of the UNCRC to include direct political representation, in addition to participation and citizenship. Participation through agency and voice does not equate to full participatory power (Wall & Dar, 2011; Wyness et al. 2004). Wall and Dar (2011) explain that children often lack the “political resources, experience, or capital to impose their own perspectives on political life” (p. 380) and are dependent on adults. This dependency should not exclude children from shaping policies around their rights, or reduce their participation to exploitative circumstances under which they are manipulated. The concept of citizenship is commonly related to characteristics associated with adulthood, such as rationality, autonomy, and impartiality. Wall and Dar (2011) believe this concept to be somewhat accurate: The idea of political participation as the expression of independent agency or freedoms involves a level of adultism. It assumes a politically independent individual. The reality, however, is that both children and adults are better understood politically as operating within larger networks of social interdependence, in which they both act but also depend on support and inclusiveness (p. 381). Citizenship is more accurately based on a notion of interdependence between adults and children, while also recognizing the uniquely lived experience of children (Wall & Dar, 2011). Children for social justice First Peoples Child & Family Review, Volume 7, Number 1, 2012, pp. 40-51 49 First Peoples Child & Family Review, Volume 7, Number 1, 2012 Wyness et al. (2004) note that as part of being granted citizenship, children need to be recognized as having “full social status” (p. 84) with rights to self-determination, rather than simply as citizens-to-be. In a democratic society, power is shared across all facets of society, and not limited to competition of autonomous individuals (Wall & Dar, 2011). The purpose of increasing the political power of children is to enhance their capacity to challenge governments through accurate and direct representation. Children are the largest group of citizens in society to wield no political power through direct representation (Wall & Dar, 2011). Not only do children have a right to be different than adults, but they also have the right to make a difference: A fully child-inclusive model of political representation will combine … concepts of interdependence and difference in what we call the right to make a political difference (Wall & Dar, 2011, p. 384). Conclusion There is an underlying assumption in society that “politics is ‘adult’ rather than child’s play” (Milstein, 2010, p. 142). There is little evidence to support this notion, and strong arguments support the expansion of children’s rights to include not only political participation and citizenship, but also direct representation (Wall & Dar, 2011). Children engaged in inherently political social justice campaigns do not exist solely in the political realm. They are still children. Their reliance on adult support does not suggest a need to exclude them from political processes: it suggests that adults need to support the active participation, citizenship, and representation of children through interdependent relationships (Wall & Dar, 2011; Wyness et al. 2004). The handful of examples of children campaigning for social justice provided in this article, and in Dover’s (2009) review of the positive impact of social justice education, provide evidence of the capacity of children to exist as political individuals. Among the examples found in the literature and the media of children engaging in social justice action, one theme that emerges is outspoken individuals and collectives from disadvantaged circumstances who speak out against maltreatment of themselves and others. Steffler (2009) emphasizes the importance of critically evaluating how children from advantaged circumstances engage in social justice action: …until the extremely defensive border excluding and sanctifying childhood is broached and the figure of the child as redeemer and saviour critically probed, there will be little movement or change to the artificial constructions and exploitations of the universal/globalized child, who is refused the much needed translation from child to person and from concept to individual (p. 120). Children and youth motivated to engage in social justice campaigns, or adults dedicated to supporting such efforts, should look for guidance toward models of social justice education, and be explicit about what definition they intend to follow. To that end, a consensus on the definition of the term “social justice education” needs to be agreed upon among scholars and educators. Once a consensus is reached, teachers need to be instructed to integrate it effectively into their curriculum. In response to critics of social justice engagement and education, society must continue to acknowledge the welfare and related rights of children, but adults need to uphold those rights in ways that do not interfere with the interests of children (Wyness et al. 2004). © Jeff McCrossin 50 Intuitively, one could conclude that teaching children to think critically to help shape a more just society would lead to a positive impact on children. An environment where children’s opinions are valued and they are included through active participation, citizenship, and meaningful representation, will undoubtedly lead to positive outcomes. While research on the impact of social justice education is limited, the evidence that exists indicates positive effects on academics, behaviours and motivation, and attitudes of children that are exposed to it (Dover, 2009). References About Shannen. (2012). Retrieved from http://www.fncaringsociety.com/shannensdream/about-shannen. Arendt, H. (1959). Reflections on Little Rock. Dissent, 6 (Winter), 45–56. Benari, E. (2012, May 21). Children protest Syria massacre outside Russian embassy. Israel National News. Retrieved from http://www.israelnationalnews.com/News/News.aspx/156369#.T-idg45hBFA. Bergmar, Magnus (2010). Iqbal Masih. Retrieved from http://worldschildrensprize.org/iqbal-masih. Blackstock, C. (personal communication, June 2012). Dover, G. (2009). Teaching for social justice and K–12 student outcomes: A conceptual framework and research review. Equity & Excellence in Education, 42(4), 506–524. Elshtain, J. B. (1996). Commentary: Political children. Childhood, 3, 11–28. Freire, P. (1970). Pedagogy of the oppressed. New York: The Continuum International Publishing Group Inc. Grover, S. (2007). Children’s right to be educated for tolerance: Minority rights and inclusion. Education and the Law, 19(1), 59–70. Harper, S. (2008, June 11). Statement of apology—To former students of Indian Residential Schools. Ottawa, Canada. Retrieved from http://www.aadnc-aandc.gc.ca/eng/1100100015644. Kapustka, K. M., Howell, P., Clayton, C., & Thomas, S. (2009). Social justice in teacher education: A qualitative content analysis of NCATE conceptual frameworks. Equity & Excellence in Education, 42(4), 489–505. Kelly, D. M., & Brooks, M. (2009). How young is too young? Exploring beginning teachers’ assumptions about young children and teaching for social justice. Equity and Excellence in Education, 42(2), 202–216. McGillis, R., & Khorana, M. (1997). Introductory notes: Postcolonialism, children, and their literature. ARIEL, 28(1), 7–15. Milstein, D. (2010). Politics is also “child’s play.” Teaching and Teacher Education, 26, 136–143. Pearce, T. (2011, September 22). Taking kids to protests—Is it responsible? Globe and Mail Blog. Retrieved from http:// www.theglobeandmail.com/life/the-hot-button/taking-kids-to-protests---is-it-irresponsible/article617674/. Smith, T. (2012, February 15). Children ask Harper to ‘have a heart’ and improve education on reserves. The Vancouver Sun. Postmedia News. Steffler, M. (2009). The production and use of the globalized child: Canadian literary and political contexts. Jeunesse: Young People, Texts, Cultures, 1(2), 109–125. Traubman, T. (2005, November 28). Foreign workers’ children protest at supreme court. Haaretz. Retrieved from http://www.haaretz.com/print-edition/news/foreign-workers-children-protest-at-supreme-court-1.175245 United Nations Convention on the Rights of the Child. (1989). Retrieved from http://www2.ohchr.org/english/law/pdf/ crc.pdf. Children for social justice First Peoples Child & Family Review, Volume 7, Number 1, 2012, pp. 40-51 51 First Peoples Child & Family Review, Volume 7, Number 1, 2012 Van Gorder, C. (2008). Paulo Freire’s pedagogy for the children of the oppressors: Educating for social justice among the world’s privileged. The Journal of Pedagogy, Pluralism, & Practice, 13, 1–30. Wall, J., & Dar, A. (2011). Children’s political representation: The right to make a difference. International Journal of Children’s Rights, 19(2), 375–392. Warmington, J. (2012a, May 8). Kids should be educated, not indoctrinated. Toronto Sun. Sun Media. Retrieved from http://www.torontosun.com/2012/05/08/kids-should-be-educated-not-indoctrinated. Warmington, J. (2012b, May 8). What are they teaching our kids? Sun News. Retrieved from http://www. sunnewsnetwork.ca/sunnews/straighttalk/archives/2012/05/20120508-083920.html. Wyness, M., Harrison, L., & Buchanan, I. (2004). Childhood, politics and ambiguity: Towards an agenda for children’s political inclusion. Sociology, 38(1), 81–99. © Jeff McCrossin 
work_zlgka4wt7zejxfc236xglucram	----	Organizational Justice: A Conceptual Discussion Procedia - Social and Behavioral Sciences 219 ( 2016 ) 798 – 803 Available online at www.sciencedirect.com 1877-0428 © 2016 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer-review under responsibility of the Organizing Committee of the 3rd GCBSS-2015 doi: 10.1016/j.sbspro.2016.05.082 ScienceDirect aSchool of Business Management, Universiti Utara Malaysia, 06010 UUM Sintok, Kedah. Keywords: E-mail address: © 2016 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer-review under responsibility of the Organizing Committee of the 3rd GCBSS-2015 http://crossmark.crossref.org/dialog/?doi=10.1016/j.sbspro.2016.05.082&domain=pdf 799 Tan Fee Yean and Ab Aziz Yusof / Procedia - Social and Behavioral Sciences 219 ( 2016 ) 798 – 803 3.1. Distributive justice 800 Tan Fee Yean and Ab Aziz Yusof / Procedia - Social and Behavioral Sciences 219 ( 2016 ) 798 – 803 3.2. Procedural justice 3.3. Interactional justice 4.1. Economic consideration 4.2. Social consideration 801 Tan Fee Yean and Ab Aziz Yusof / Procedia - Social and Behavioral Sciences 219 ( 2016 ) 798 – 803 4.3. Ethical consideration 5.1. Builds trust one party’s willingness to be vulnerable to another party based on the belief that the latter party is competent, open, concerned and reliable”. . 5.2. Fosters employees’ organizational citizenship behavior 802 Tan Fee Yean and Ab Aziz Yusof / Procedia - Social and Behavioral Sciences 219 ( 2016 ) 798 – 803 5.3. Improves job performance , H. A. Multi-level issues in organizations and time (vol. 6, pp.397-413). 803 Tan Fee Yean and Ab Aziz Yusof / Procedia - Social and Behavioral Sciences 219 ( 2016 ) 798 – 803 
work_znzsmovvmrc37kcu67gytluvpi	----	Microsoft Word - Template.doc The White Horse Press Full citation: Luper-Foy, Steven. "Justice and Natural Resources." Environmental Values 1, no. 1. (1992): 47-64. http://www.environmentandsociety.org/node/5457. Rights: All rights reserved. © The White Horse Press 1992. Except for the quotation of short passages for the purpose of criticism or review, no part of this article may be reprinted or reproduced or utilised in any form or by any electronic, mechanical or other means, including photocopying or recording, or in any information storage or retrieval system, without permission from the publishers. For further information please see http://www.whpress.co.uk. Environmental Values 1 (1992): 47-64 © 1992 The White Horse Press, Cambridge, UK. Justice and Natural Resources STEVEN LUPER-FOY Department of Philosophy, Trinity University San Antonio, Texas 78212. ABSTRACT: Justice entitles everyone in the world, including future genera- tions, to an equitable share of the benefits of the world’s natural resources. I argue that even though both Rawls and his libertarian critics seem hostile to it, this resource equity principle, suitably clarified, is a major part of an adequate strict compliance theory of global justice whether or not we take a libertarian or a Rawlsian approach. I offer a defence of the resource equity principle from both points of view. KEYWORDS: Environmental ethics, future generations, justice, natural resources. LIBERTARIANS AND TWO TYPES OF COOPERATION At the heart of libertarianism is a distinction between two sorts of cooperative scheme. The first sort is a noninterference scheme, one by which people limit the extent to which they interfere with each other’s endeavours. The second is a scheme of mutual aid, one by which we join with others for mutual advantage. An arrangement in which we avoid killing each other is an example of the former. If we combine our forces to harvest our crops we will have created an instance of the latter. According to libertarians, noninterference schemes are central to justice. They are needed since all of us ought to be as free as possible to devise values and plans, and to design our lives in accordance with those values and plans.1 Yet a group of people is free to vote, worship, or what have you, only if everyone avoids doing anything which prevents that group from doing those things. So freedom requires constraint. In particular, if a group is free to acquire all of the world’s resources, or an enormous quantity of them, then everyone else must do without. It is all too common for people to want enormous quantities of the world’s resources, and if these people take them, it is impossible for the rest of us to get a share without interfering. A rather different example of inevitable constraints stems from the fact that others often try to plan our lives out for us without consulting us. Thus people sometimes claim the right to decide that and 48 STEPHEN LUPER-FOY whom we shall marry, or what our religion shall be. When they do, it is sometimes impossible for us to avoid altogether interfering with their plans (as when someone wants you to marry A, while A would rather you marry B), and almost always unreasonable to expect us to do so even if we can. Once we acknowledge that interference sometimes must be tolerated, then we need an account of legitimate interference. With such an account, we could say that everyone is obligated to support an order in which everyone avoids all but legitimate interference in the projects of others. Everyone is obligated to cooperate to the extent of instituting and supporting such a scheme. But our obligations would not end there. We also have obligations that arise from the associations we form with others for mutual aid, each making a contribution in the expectation that the others will do so as well. Perhaps we are not obligated to join with others in pursuit of mutually beneficial goals. Certainly the libertarian view is that we have no such obligation. But libertarians would also say that when we agree to join we owe each other in ways we otherwise would not. So in addition to an account of legitimate interference we need an account of legitimate cooperation that would specify the ingredients of legitimate schemes of cooperation, including the proper distribution of the benefits and burdens involved. We can then require conformity to the dictates of that account. Even if entry into schemes of mutual aid is usually strictly voluntary, there is one apparent exception. We have already said that everyone is obligated to help institute and support a noninterference scheme, one guaranteeing that no one interferes illegitimately with the plans of others. Yet such a scheme is beneficial for all involved, and hence it is a scheme of mutual aid. In order to avoid confusion about the overlap between noninterference schemes and schemes of mutual aid, I will arbitrarily apply the term ‘mutual aid’ only to schemes whose mutual benefits extend beyond the requirements of noninterference. So even if it is already a closed question whether joining schemes of noninterference is obligatory, it is so far an open question whether joining schemes of mutual aid is obligatory. The account of legitimate cooperation favoured by most libertarians is fairly straightforward. All parties to a contract must honour their agreement as long as it was made without coercion or deception. Accordingly, the terms of legitimate cooperation are settled by the terms of agreements people make upon entering into schemes of mutual aid. I will say nothing further about the libertarian account of legitimate cooperation, however, since the resource equity principle rests on their account of legitimate interference, not on their account of legitimate cooperation. Or so I will argue next. JUSTICE AND NATURAL RESOURCES 49 THE RESOURCE EQUITY PRINCIPLE AND LIBERTARIANISM Unfortunately, libertarians have provided little theoretical apparatus for choos- ing an account of legitimate interference. John Hospers’ libertarian principle, “every human being has the right to act in accordance with his own choices, unless those actions infringe on the equal liberty of other human beings to act in accordance with their choices”, is fine as far as it goes, but it says nothing about what to do when the courses of action people want to take are mutually incompatible.2 The libertarian would do better to adopt (what might be called) the liberty maximizing principle: each person should be guaranteed the most extensive scheme of liberties consistent with guaranteeing the same scheme for all. At least this principle says something about what to do when lifestyles clash, namely, extend to everyone in the conflict a scheme of freedoms that ensures that everyone’s plans are interfered with by others as little as possible. Even this injunction faces difficulties, one of which is that there may be more than one scheme of universal freedoms whereby everyone’s plans are interfered with by others as little as possible.3 But some version of the liberty maximizing principle can be used by libertarians to flesh out the account of legitimate interference which they need, and the point I want to make is that if that principle is accepted, the resource equity principle ought to be accepted as well. Almost all of us would like to be as free as possible to appropriate natural resources, but obviously the freedom to appropriate the whole stock of natural resources cannot be extended to everyone. Oddly enough, the policy favoured by many libertar- ians is a ‘first come first served’ policy, presumably because it could be consistently extended to everyone. But this policy would do nothing to maximize the freedom of everyone to appropriate resources. In particular, the absurd ‘first come first served’ policy completely denies future generations the opportunity to appropriate any natural resources. So what universally extendable freedom would leave everyone as free as possible to appropriate resources? Roughly one permitting everyone to divide resources equally among themselves (including resources that are not wanted by those otherwise entitled to them, if any). Of course, this freedom could be specified more clearly. Will specific bundles of resources be identified as belonging to particular individuals? Will the cash value of a share of resources do just as well? Such matters need clarification, but working out a precise statement of the sense in which we are entitled to a share of resources will have to wait. For now I simply want to claim that the resource equity principle, which states that everyone is entitled to an equitable share of the benefits of the world’s resources, is a good point of departure for the libertarian. There is another and, I think, superior way libertarians might develop the details of an acceptable noninterference scheme. Instead of relying on the liberty maximizing principle to do the work, they could work with a piece of John Rawls’ apparatus. I think that a limited use of Rawls’ original position apparatus 50 STEPHEN LUPER-FOY can serve as the basis for an account of legitimate interference on the interna- tional level that would be acceptable to libertarians and ought to be acceptable to anyone else.4 Rawls thinks that his apparatus is also suitable for working out principles of legitimate cooperation, which I doubt, but whether or not we agree with him on that score we can still use it to pick out principles of legitimate interference. It requires that we take the attitude that all things being equal our interfering with someone else’s plans is as bad from the standpoint of justice as their interfering with our own. From that point of view it is possible to identify principles of legitimate interference that will be fair to all concerned. And a noninterference scheme that resolves conflicts among people in a way that is fair to all concerned should be appealing to libertarians as well as anyone else. Very briefly, Rawls’ idea for ranking conceptions of justice for the basic structure of a society is to conduct a thought experiment in which the list of alternative conceptions is presented for evaluation to a group each of whom represents a citizen. We stipulate that the representatives are rational and mutually disinterested, so that the aim of each is to pick an alternative that advances the interests of his or her ward as far as possible. We also stipulate that while each representative knows that his or her ward embraces some conception of the good, its details are unavailable. The representatives are situated behind a veil of ignorance, so that none of them knows specifics about the situation of the individual whose cause he or she is to champion. These unknown specifics include the conception of the good but also the race, sex, income, occupation, and generation of their wards. Rawls coins the term ‘original position’ for the situation in which the representatives rank alternatives, and it is designed to favour conceptions of justice that are fair to citizens. Fairness is ensured primarily because the veil of ignorance forces representatives to assume that their ward might occupy any social position in society including the very worst one and to pick a conception of justice accordingly. Consider how the pursuit of fair principles of legitimate interference would cash out with respect to natural resources. Natural resources are the raw resources of the earth. They are not to be confused with goods like wealth or the refined products of industry, both of which come into existence already owned since they are created through the cooperative activity of people who have been promised a share in exchange for producing those goods. Raw resources such as land, water, air, and the various minerals contained therein are not produced, and hence no one has any initial claim on them, and that includes past generations as well as present and future generations. Nonetheless, natural resources are obviously crucial to the achievement of anyone’s plans, either because those resources are directly desirable, as wilderness areas are desired for the solitude and variety of life they provide, or since those resources can be converted into directly useful items through the application of industrial techniques. Hence each of us would like to have far more of the earth’s resources than is possible since people’s desires are great and resources scarce. JUSTICE AND NATURAL RESOURCES 51 In using the original position apparatus to settle who may claim the world’s raw resources, we can begin by supposing that everyone in the world, past populations as well as present and future populations, is assigned a representa- tive who is situated behind Rawls’ veil of ignorance. (This approach is more reasonable than Rawls’, in which whole nations are assigned representatives.) These representatives know that their wards have a conception of the good that they (the wards) would rather not alter, but they do not know much about the content of that conception. The representatives also know that their wards can change their conceptions, and so could adjust if they lacked the resources ideally suited to their plans, so long as the resources offered them were not too minimal. Therefore, parties behind the veil of ignorance could not favour one sort of project over another, and would not worry unduly if people with especially demanding projects ended up with fewer resources than necessary to achieve their aspirations. It is reasonable to suppose that the representatives would opt to give everyone a claim to an equitable share of the benefits of the world’s resources. This resource equity principle would apply not on the societal level, but rather globally, for the parties would see no reason to let citizens of some countries gain a greater share simply because they happen to live in resource-rich lands. No doubt the representatives would want to fine-tune this principle, but they would certainly accept it. THE RESOURCE EQUITY PRINCIPLE AND RAWLS We have shown that Rawls’ apparatus can be used to defend the need to incorporate the resource equity principle into an adequate noninterference scheme. However, this does not imply that Rawls should accept the resource equity principle. He assumes that there is no special difference between the statuses of schemes of mutual aid and noninterference schemes, and hence seeks principles that will cover both sorts of scheme, and principles that might be adequate for one sort of scheme may not be adequate for both. The reason Rawls attributes no importance to the distinction between the two sorts of scheme is that on his view the citizens of a just society attempt to advance the collective good.5 People have their individual projects, but they take sufficient interest in the collection of everyone’s projects (many of which are incommensurable with others) as to regard the completion of that group project as a goal to be achieved through a cooperative effort in which the collective output of primary goods such as wealth is maximized and the benefits and burdens of the effort are distributed fairly. On this vision, both a scheme of noninterference and of mutual aid are to be pursued. Rawls is quick to insist that the group project not be constructed the way the utilitarian would do it: by squishing the project of each person together with those of everybody else, much as individuals moosh together their own projects 52 STEPHEN LUPER-FOY so as to construct a coherent system of preferences out of their pre-reflective desires. “By this [utilitarian] construction. . .many people are fused into one,” Rawls complains. He wants nothing to do with the utilitarian approach since it “does not take seriously the distinction between persons.”6 Instead, the group project is pursued through maximizing the production and availability of the multi-use items that Rawls calls primary goods. Given such an ideal, it would be reasonable to turn the matter of selecting a conception of justice over to representatives in the original position, who would see to it that a cooperative scheme is pursued that provides for everyone’s projects. Representatives would not hesitate to design a scheme by which some people are required to contribute to the projects of others, and would opt, as Rawls himself says, to organize society’s employment opportunities into a structure that generates as many primary goods as possible.7 I reject Rawls’ ideal for several reasons, not the least of which is that in demanding that we direct our efforts in life to producing the means by which the collective project may be pursued, Rawls’ ideal blurs the distinction between people in much the same way as does utilitarianism.8 On both approaches the fact that a certain project is mine is irrelevant from the moral point of view. Also, I think that Rawls’ libertarian opponents are correct in insisting that taking part in schemes of mutual aid is always optional. But the resource equity principle can be defended without assuming this libertarian-style claim and without rejecting Rawls’ social ideal. It can be defended even if we take Rawls’ attitude toward the two sorts of scheme. Rawls himself would appear to disagree about the justness of the resource equity principle, at least in part. He does think that saving for future generations is obligatory, as is made clear by the just savings principle he defends.9 However, what Rawls says about international justice is in tension with the resource equity principle. His view is that if individual nations were internally just, little more would be required to make the world as a whole just. Principles of international justice would be limited to conventions such as a principle of equality of nations and corollaries such as the principles of national autonomy and self-defence.10 Among these conventional principles is no hint of anything that requires substantial redistribution of goods among nations. Rawls is content to let vast inequities in resources and other goods persist so long as the inequities do not occur within nations. Several philosophers and political scientists have criticized Rawls’ discus- sion of international justice, insisting that if Rawls has shown that his strong principles should apply within nations then similar reasoning justifies the application of those principles across the globe.11 The point seems rather obvious: Rawls would say of a nation consisting of internally just subunits (such as states) some of which are extremely rich while others are extremely poor that it is unjust since it fails to conform to the strong principles of justice which representatives of its citizens (or even of its individual states) would adopt. Yet JUSTICE AND NATURAL RESOURCES 53 if the parties in the original position would condemn such a nation, representa- tives of everyone in the world (or of each internally just nation) would condemn an international order including both extremely rich nations and extremely poor ones on virtually the same grounds. They would also condemn an intergenera- tional order with such extremes. The upshot is that Rawls’ demurrals notwith- standing, his principles of justice are no less justified as principles of interna- tional, intergenerational justice than as principles of intranational, intragenerational justice. One of the strong principles Rawls defends, the difference principle, has especially powerful implications for the intergenerational order. Even though it does not focus directly on the distribution of resource shares, it provides indirect support for the resource equity principle. For it says that all of the world’s main institutions, including ones that handle natural resources, ought to be arranged so as to maximize the primary goods available to the least well-off. This does not imply that everyone ought to receive an equal share of the world’s natural resources: perhaps the total supply of primary goods could be increased if some people control more natural resources than others. But since resources are so easily convertible into primary goods, it does suggest that everyone has a prima facie claim to an equitable share of the benefits of the world’s resources, a claim that may be overridden when doing so benefits the least well off. I conclude that the resource equity principle is on firm ground when assessed in the way Rawls wants to assess principles of justice. However, the resource equity principle as stated is so vague as to be incapable of telling us which natural resources we are required to conserve for future generations, or about the proper way to apportion our fair share of resources among our contemporaries. Let me therefore try to sharpen the formulation a bit, first in relation to future generations, then in relation to contemporaries. After doing so I will show that the resource equity principle’s sharpened edges are desirable additions to a fair noninterference scheme when assessed using Rawls’ original position apparatus. I will recommend my principle to libertarians on those grounds. Before I can recommend it to Rawlsians, however, I will need to allow for Rawls’ indifference to the distinction between schemes of mutual aid and noninterference schemes. THE RESOURCE EQUITY PRINCIPLE AND INTERGENERATIONAL JUSTICE Because of the rights of future generations, the first orders of business are to set aside some of the world’s unexploited resources for them, and to decide what levels of pollution are tolerable. (Some of the resources new generations have coming to them should be sold before they come of age to help cover medical and educational expenses not otherwise provided for.) Exactly how much of the 54 STEPHEN LUPER-FOY resources should be set aside and how much pollution is acceptable is hard to say, primarily because the required rates of conservation and pollution depend on the size of future populations, and the distantly future population size is unpredict- able. However, some observations about our obligations to later generations will help us settle these issues. Note that our having obligations to future generations is conditional on the existence of future generations. We are obligated to share the world’s resources (and to do other things involved in avoiding illegitimate interference with their projects) only with people who will exist. Moreover, we do not have any obligation to bring a successor generation into existence. (Indeed, the libertarian would say that no one ever has an obligation to have children,12 but advocates of justice as fairness must disagree. They must say that while it is permissible for one generation to have no children whatever, it is not permissible for a generation to have just a few, since a fairly large number of children is necessary to maximize the prospects of the intergenerational least well off.13) Therefore we could altogether avoid the existence of obligations to future generations by altogether avoiding the existence of future generations. Still, the more people we create, the more there are who have a claim on the world’s resources, which is why it makes sense to say that the required savings and pollution rates are linked to the size of the future population. However, it is still hard to identify the just savings and pollution rates since at best we can determine only how large the next generation will be. We can choose either to prevent any future generations at all from existing, or to bring about a successor generation of a given size. The generation we produce will itself determine how large its successor will be. We cannot completely control the size of the future population as a whole since the size of each generation is under the control of its predecessor. To unravel these difficulties, let us make a simplifying assumption we can drop later. Let us assume that each generation must concern itself with the next, but, so far as savings and pollution are concerned, only with the next, leaving the latter to determine its required savings and pollution rates by deciding how large its successor generation shall be. Given this assumption, it would be reasonable to adopt the following plan: if the best prediction (based on information provided by prospective parents) were that the present generation will replace itself, then that generation would set aside half of the world’s natural resources for the next generation. (Let us leave aside the issue of pollution for now.) It would prevent those resources from being recovered by the present generation except where plans call for replacing the resources, as when it allows trees to be harvested on condition that reforestation occur. And it would prevent the development of reserved land and the destruction of irreplaceable natural wonders, though activities such as hiking that leave no permanent damage would be permitted and regulated. If the next generation were twice the size as the present one, the present one would set aside two-thirds of the world’s resources; if three times the size, three-fourths would JUSTICE AND NATURAL RESOURCES 55 be set aside, and so on. This policy would obviously give each generation a strong incentive to limit the size of the next, for the fewer its children, the greater the percentage of the world’s resources it may exploit, and hence the greater its share of resource profits. Call the injunction of this policy the restricted resource savings principle – ‘restricted’ to remind us that the principle rests on a simplifying assumption we will eventually challenge. The restricted resource savings principle leaves it up to each generation to decide how much of the remaining resources it will exploit. It could even exploit everything, but if it does it must be prepared not to produce a generation that would only die miserably from lack of resources. The absolute ceiling on how many people a generation may produce would be determined by the resources needed if their offspring are to have what they themselves would consider to be at least minimally decent lives. The general principle here is that no one may produce a child who cannot be expected to lead a life that child would regard as worthwhile. The total number of children each generation would decide to produce is a crucial number. Each generation must estimate it before it can know how fairly to distribute the profits from resources to people who are willing to have few or no children. We cannot just divide the resource profits that are coming to a generation by its size and dole out the results to each member. That is unfairly favorable to those who have more children, for they will have decreased the profits due their generation and still received the same share going to their childless contemporaries. Instead, we need to ensure that people who have fewer children will receive a proportionally greater share of their generation’s resource profits, while those who have more receive a proportionally lesser share. Call the injunction requiring this arrangement the reproductive control principle. It is time to reexamine the assumption that each generation need only concern itself with saving for the next. A problem with this assumption is that it authorizes us to gobble up a huge percentage of the world’s resources—say one- half—then produce a successor generation—say one that is equal to the size of our own—that does not have enough resources both to produce the same number of children as we did and also to sustain the same standard of living as we. In this scenario some of us would have helped ourselves to the right to reproduce and to exhaust huge amounts of resources knowing full well that the next generation could not do likewise. This would be a right we could not defend, as becomes apparent once we take up the point of view of the original position and note that parties representing our children would insist on defending an equitable policy of reproductive freedom as well as an equitable policy concerning resource shares. Moreover, and here we return to the issue of pollution, they would want the level of pollution affecting their wards to be minimal. They would want a policy according to which we must limit our rates of reproduction, resource consumption and 56 STEPHEN LUPER-FOY pollution to ones that are also sustainable by future generations in perpetuity, so that as a generation we may parent a certain number of children, pollute, and consume resources at a certain rate only if our best guess is that each successive generation could do likewise. Call the requirement of these arrangements the sustainable consumption-reproduction principle. It may appear that this policy is less practical than it is. Eternity is a long time, the skeptic might insist, and surely no matter how conservative we and our successors are in consumption, pollution and reproduction, resources will eventually run out and pollution will mount to deadly levels. Moreover, we cannot now know what conditions in the distant future will be like, so how can we be expected to figure out a policy that will be practical then? As for the second of these skeptical points, it is a reasonable guess that resources which we want will always be wanted, and pollutants which we deplore will always be deplored, though not necessarily with the same intensity or for the same reasons as before.14 For example, perhaps future generations will cease to value wild animals as sources of food and will value them instead for aesthetic reasons, so that it will not do for us to destroy animal species through consumption, pollution, or the conversion of their environments for other purposes.15 The upshot is that we do not need much information about the future to know that our descendants would want as large as possible a share of the world’s natural resources and as low a rate of pollution as possible. The skeptic’s point about exhausted resources overlooks the fact that most of what we must consume if we are to live is renewable or replaceable with substitutes. Certainly the sustainable consumption-reproduction principle is extremely demanding, but its terms could be met. So far as renewable resources such as trees, cattle and fish are concerned, each generation must restrict itself to consuming only what will be replenished or replaced either by that generation or by natural forces, to pollute only to a degree that can be absorbed by the environment without any cumulative effects, and to set its reproductive rate at a level consistent with the next generation’s honouring the same terms. (By honouring the reproduction control principle, each generation could deal fairly with smaller families.) This is not to say that a generation must replace trees with trees and fish with fish, however, thus leaving the resources of a region more or less as they are. Several considerations must be taken into account before a change from the natural order is made, but in principle parties in the original position representing future generations would not object to the replacement of certain plants with other ones that would be more useful to future generations. The considerations that must be weighed in deciding whether a region should be left intact as a conservation area include the following: the impact that a proposed conversion would have on the ecological order necessary to sustain life in general and human beings in particular; the possibility that certain species of both plants and animals may have uses that are unknown at present; and the aesthetic value of the natural JUSTICE AND NATURAL RESOURCES 57 order to be disturbed. It is evident that such considerations would prevent the parties from countenancing a major shift from natural flora and fauna to artificially cultivated sorts, and would lead them instead to insist on keeping the human population level low enough to conserve vast regions of the earth intact, such as substantial portions of South America, but it is hard to see that any precise balance would be insisted upon. As for resources for which there are no reasonable substitutes and whose supply is not renewable, they must be used only in conjunction with an effective program of recycling. Some such items, such as air and water, can be recycled directly, and in a way that does not consume them. We need only re-introduce into the environment air and water that is as pure as before. But other items can be recycled only in the sense that they can be converted into things that are themselves reusable. Such things not only must be converted into recyclable items but must be recovered sparingly so as to spread their availability over many generations. We may use iron or oil to make steel or plastic items, but only if we recycle those products or the steel or plastic out of which they are made. Our present policy of burning away our oil reserves in the engines of cars and jet planes must be phased out as quickly as possible, and renewable and non- polluting sources of fuel must be found. Given that there are nearly five and a half billion people in the world, it will be difficult to abandon our reliance on fossil fuels, so in large measure the solution must involve ensuring that the next generation’s size is much smaller than our own. It is not easy to say what would constitute a reasonable substitute for a resource, so that we can tell whether consuming a resource which cannot be renewed is acceptable. The question one must ask is whether representatives of future generations would oppose the substitution or not. Thus it might turn out that one could argue from the standpoint of the original position for the permissibility of consuming all (or almost all) of the available iron ore given that some other available substance could be substituted conveniently. It is also difficult to decide when it is reasonable to allow an exception to the sustainable consumption-reproduction principle, but some exceptions are justifi- able. Inevitably, for example, some non-renewable resources will be lost even with the best of recycling programs, and some pollution will occur no matter how we produce our energy. To determine whether an exception is allowable, we need to view matters from the perspective of the original position; in particular we should ask whether representatives of generations that otherwise might receive what we are consuming would be willing to grant us the exception. Sometimes they would grant this privilege since (among other things) they know that only by doing so can they legitimate their own wards’ practice of consuming goods which cannot be replenished. Perhaps one could also justify burning fossil fuels and producing a bit more pollution than the environment could absorb on the grounds that doing so played an essential role in the discovery of renewable sources of fuel. But it is obvious that most of the present uses of fossil fuels serve 58 STEPHEN LUPER-FOY no such end. Those who consume the most should therefore shoulder the burden of discovering practical sources of renewable energy and converting the world to a recycling economy. THE RESOURCE EQUITY PRINCIPLE AND JUSTICE FOR CONTEMPORARIES So much for the just sharing of resources across the generations. Now let us sharpen the resource equity principle vis-a-vis justice for our contemporaries. We can start by taking into account the fact that intergenerational requirements have implications for intragenerational justice. In particular, arrangements with contemporaries must conform to the sustainable consumption-reproduction principle. Thus resources may be consumed only if renewed, replaced, recycled or converted into recyclable items. However, while these principles help us determine which resources are available to a generation as a whole, they do not clarify how the members of a generation ought to take advantage of the resources that legitimately may be exploited by them. Sharing with our contemporaries presents difficulties. For many reasons it would be absurd for a Rawlsian or a libertarian to say that the resources that are due a generation should be gathered together and doled out equitably to everyone in it. Among other things, gathering or recovering most resources is a costly business, and those who devote energy to this endeavour have some sort of claim to what they have recovered. So how should the members of a generation share the benefits of resources that are due it? My proposal calls for a major expansion of the functions and authority of the World Bank, or the creation of some other international institution, so that it could sell the rights to recover resources on the open market. The rights sold would be temporary, so that whoever buys may purchase the rights to recover a specified quantity of resources in a certain area during a period of time consistent with withdrawing those resources without polluting others, such as air and water, and replenishing any renewable resources extracted. After this time the rights would revert back to the Bank for repeated sale. The Bank would seek to maximize the profits it received from these sales, which of course means that it could not demand so much that no buyers would be attracted. Profits from the sales would be used by the Bank to pay its expenses, and otherwise the profits would be distributed to the people who are entitled to a share of the benefits of those resources. Call the injunction that these arrangements be instituted the resource recovery principle. People in the resource recovery business would sell the resources they extract for as great a profit as possible. The greater the profit, the more lucrative the recovery business. As their business became more profitable, more agents would take it up, thus competing up the price the Bank may charge for recovery JUSTICE AND NATURAL RESOURCES 59 rights. Some sorts of resources will require special handling. In particular, we cannot handle cultivated resources the same way we handle uncultivated ones. Whereas the benefits of uncultivated resources must be shared equitably with our contemporaries, such sharing need not always occur if the resource at hand is a cultivated crop. People who raise a crop that otherwise would not exist have a prima facie claim to it by virtue of being the only ones who invested their labour into the crop. This is not to say, however, that people who harvest a grove of trees then replant trees will own the trees that then grow. They had no special claim to the original trees; if they harvest them, they must replace them so as to do justice to future generations of people who otherwise would be deprived of the trees. The situation is complicated when people replace an uncultivated with a cultivated resource, as when they clear land of trees in order to raise food. Here a resource that must be shared is replaced with one that is owned by individuals. Such replacements would not be objectionable in principle to parties in the original position in spite of the fact that these remove a natural resource from the scene. One consideration favouring the acceptability of replacements is that present and future farmers who own their crops still must compensate their contemporaries for the use of another natural resource: the land and soil and nutrients they use to grow their crops. Land and soil are natural resources that themselves must be shared equitably with others. One way to share the benefits of land and soil would be for the World Bank to lease farmland out for a limited period of time and distribute the profits it receives. No one would own farmland outright. Of course, the sustainable consumption-reproduction principle applies here too: Since farmland is a recyclable natural resource, it must be used only in ways consistent with its being recycled, so built into the lease would be the requirement that tenants who farm return the soil to its original richness before the lease is up. Farmers may lease the rights to draw nutrients from soil for their crops, but would be required to farm in ways consistent with the indefinitely extended productivity of the earth. Land may be used for a variety of things other than farming, but I suggest that the best way to allow people to share fairly in its benefits is to permit no one to own land outright. To use land for any purpose, people must lease it. The Bank would be interested in maximizing its profits and would lease out land for varying rates and periods depending on the market. Once again the Bank’s profits would be distributed equally among the people after its own expenses were covered. Call the injunction requiring these arrangements the land leasing principle. 60 STEPHEN LUPER-FOY RAWLS AND SHARPENED RESOURCE EQUITY The resource recovery, land leasing, reproduction control, and sustainable consumption-reproduction principles constitute an improved version of the resource equity principle. If they really are crucial parts of an adequate account of legitimate interference, as I have suggested in the previous two sections, then we have gone a long way toward justifying them. I should think that libertarians would adopt them on this basis, for example. But to justify them for Rawlsians we must argue that they would be adopted by representatives in the original position who are willing to require that people enter schemes of mutual assistance. At this point, however, the argument is simple. I suggest that while the representatives would add to the four principles of legitimate interference I have defended, they would not withdraw them when devising further principles in general and principles of legitimate cooperation in particular. They would find it useful to deal separately with natural resources on the one hand and the fruits of people’s labour on the other, and to include my four principles in their policy for sharing the benefits of natural resources. At the same time they would want to redistribute the fruits of people’s labour as part of a mandatory scheme of mutual aid given their interest in improving the prospects of less well off contemporaries and of future generations across the globe. At a minimum they would impose a 100 percent inheritance tax (or one that is nearly 100 percent), thus gathering the fruits of people’s lifelong labour for equitable distribution to the world’s next generation. But the fact that the representatives will adopt an account of legitimate cooperation that redistributes the fruits of labour is consistent with their adopting an account of legitimate interference that includes my four principles. The scheme of mutual aid to which Rawls is committed forces some people to transfer the fruits of their labour to others who are less well off, thus limiting the autonomy of those who must sacrifice. But those who value autonomy more than Rawls does will appreciate the way I have developed libertarianism so as to justify the equitable sharing of the benefits of natural resources without justifying the equitable sharing of the fruits of people’s labour. To justify the latter we must place so much value on equity in all things of value that we are willing to force people to work toward the ends of others, which is to use them as mere means. By contrast, natural resources are not produced by anyone and hence their benefits may be distributed without using anyone as a mere means. An improved form of libertarianism would expect people to take the responsi- bility for achieving happiness using nothing but their fair share of the benefits of natural resources, their own labour, and any help others voluntarily provide. JUSTICE AND NATURAL RESOURCES 61 EXPECTATIONS FOR THE FUTURE I have defended two requirements for world justice. (1) instituting a policy whereby as a generation we may rear children, pollute and consume natural resources at certain rates only if each successive generation could be expected to do likewise, so that the world’s population level must be kept low enough to conserve vast regions of the earth, and (2) sharing equitably the benefits of the natural resources that our generation may legitimately consume. I will close with some sketchy claims about the moves we should make toward meeting these requirements, focusing on the concern that undeveloped nations must carry an unfair portion of the world’s conservation requirement. As things stand, the idea that the obligations of justice might cross state boundaries is given little credence. We live in a world of nation-states whose citizens consider justice to be almost entirely an internal affair. In particular, people think that the natural resources found within their country’s geographical boundaries are theirs to exploit. Given this attitude, it would be unreasonable to expect people in resource-rich nations such as Brazil to burden themselves with a major part of the world’s conservation effort. If the resources in Brazil belong to Brazilians, they may exploit them as heavily as is consistent with their doing right by future Brazilians. Moreover, if practical, people in developed countries must presumably return large regions of their territory to a natural state in order to meet conservation obligations to the future generations that will occupy those countries. But I have been arguing that people in no nation exclusively own the resources within its geographical boundaries. Will this suggestion entail that the citizens of undeveloped nations must carry an unfair portion of the world’s conservation burden? It will not, for two main reasons. One is that an effective conservation policy will require the assimilation of many of the people of undeveloped nations into developed nations. The second is that if the resource recovery and land leasing principles are implemented across the globe, there will be an immediate massive transfer of funds to people in undeveloped nations who up until now have not benefited from the exploitation of the resources in developed nations. Consider the second point. If the resource recovery principle is implemented, the lucrative wheat fields in the United States, the oil fields in Saudi Arabia and the fish-rich waters of the world will all generate income for the people of undeveloped nations. These people would then take the attitude that the resources in developed nations are the property of the global community, and as such must be handled in a way that benefits everyone fairly. Once they take that position, it will be entirely reasonable to take the same position vis-a-vis the resources within the geographical boundaries of their own nations. If those resources belong to the global community, they should be handled in a way that is consistent with global justice, and it may be that most of the resources that should be conserved are in some of the undeveloped nations. 62 STEPHEN LUPER-FOY Now let me explain why I think that a substantial relocation of people would be part of an effective conservation effort. The most extensive conservation efforts should be made in the tropical rain forests of the world. There is far more diversity in them than elsewhere. Half of all known species live there, and fewer than 1% of the plants there have been examined for possible usefulness.16 One specific place where a major conservation effort must be made is in South America, for an amazing variety of the world’s plant and animal species are concentrated there; for example, 19% (800) of the entire world’s species of terrestrial mammals and one-third (90,000) of the world’s species of flowering plants are in South America.17 The interests of posterity are best served if these species are preserved, and they may be preserved only if huge regions of South America are left undeveloped. But leaving a great deal of South America undeveloped requires keeping the human population there low, and that can be accomplished only by combining a severe limitation of the birth rate there with a substantial relocation of people into less sensitive regions of the world whenever birth rates do soar. As things stand, population growth in South America is higher than anywhere else in the world,18 and we have all heard dire predictions about the rate of deforestation taking place there as a result of massive numbers of poor people trying to make a living through such environ- mentally destructive practices as slash-and-burn cattle farming.19 The conservation effort of the world should occur mostly in undeveloped areas. But this is not to let people in developed nations off lightly. Their burden is providing a place for people to live. Developed nations would not be expected to meet their conservation obligations by restoring vast settled areas of their territory to a natural condition, which would probably be impossible anyway. They ought to conserve what they can, but it would be absurd to expect North Americans to return the forests in California to their original state, for example. Instead, from the standpoint of global justice it makes sense to expect developed nations to assimilate people from environmentally sensitive areas. NOTES An earlier version of one section of this essay was read at II Congreso Internacional de Ethica y Desarrollo, July 1989, Universidad Autonoma de Yucatan. Another section was read at the July 21, 1991 meeting of the International Development Ethics Association of the World Conference of Philosophy, Nairobi, Kenya. I thank Susann Luper-Foy, Curtis Brown and Alex Neill for helpful criticisms. 1 Indeed, libertarianism as a doctrine might be expressed as the view that people should be as free as possible to do what they want, so that freedom should be restricted when and only when required to make people as free as can be. But libertarians do not always express their view in this way. A second formulation is that people own themselves and their labour. That is, people may do with themselves whatever they wish, and others must let them. A third formulation of libertarianism is a version of the Kantian injunction that JUSTICE AND NATURAL RESOURCES 63 no one may be used as a mere means to the ends of others, namely the principle that no one is obligated to do something solely because it helps someone else (though they may do it by consent). It is always up to us to decide whether we will help others. 2 Hospers, 1974. 3 Onora O’Neill (1988) criticizes libertarianism on these grounds. I would think that the libertarian response ought to be that the schemes that tie are equally good. Use any one of them. 4 He describes and defends this apparatus in A Theory of Justice (1971). 5 Thus at the beginning of A Theory of Justice, Rawls writes a society is a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them … These rules specify a system of cooperation designed to advance the good of those taking part in it. Then … a society is a cooperative venture for mutual advantage … (p.4) In Rawls’ ideal society a conception of justice is a set of principles that dictate a fair division of the benefits and burdens of the society-wide cooperative pursuit. Cf. Rawls, 1985. 6 Rawls, 1971, 27. 7 They would not adopt the version of Rawls’ liberty principle that he defends in A Theory of Justice: “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all” (p. 302). By assigning this principle lexical priority over his second principle, Rawls inadvertently implies that joining schemes of mutual aid is always optional. The point is perhaps moot, however, since in recent writings Rawls has reformulated his liberty principle so that it now guarantees only a fully adequate package of equal basic liberties, where “fully adequate” amounts to the resources necessary to develop and exercise moral personality. 8 An extensive literature expands upon Rawls’ discussion of whether various theories gloss over the distinctness of people, including Smart and Williams, 1973; Williams, 1973, which includes various relevant essays such as “Persons, Character, and Morality”; Scheffler, 1982; Nagel, 1986, and Parfit, 1984. 9 According to Rawls, “each generation must not only preserve the gains of culture and civilization, and maintain intact those just institutions that have been established, but it must also put aside in each period of time a suitable amount of real capital accumulation” (A Theory of Justice, p. 286). Rawls also thinks that “it is not possible … to define precise limits on what the rate of savings should be” (p. 286). About all we can say about the required rate is that (1) it is not set by the difference principle since “there is no way for later generations to improve the situation of the least fortunate first generation,” and the difference principle “would seem to imply, if anything, that there be no saving at all” (p. 291); (2) each generation must pass on a capital accumulation at least as great as it would have expected from its predecessor; but (3) the required accumulation “falls to zero” once just institutions are established (p. 298). This is not the place to discuss these points but I cannot resist noting that the first of them rests on the false assumption that since the first generation to concern itself with intergenerational justice receives nothing in return it is automatically the least well off in any savings scheme. But if a few generations conserved little or nothing, a subsequent generation would find itself without the means to live at all; taking this fact into account, the difference principle would require that we improve the prospects of that otherwise forlorn generation by imposing sacrifices on earlier generations. 64 STEPHEN LUPER-FOY 10 A Theory of Justice, Section 58. 11 See, for example, Barry, 1973, Scanlon, 1973, and Beitz, 1979. 12 Since the most freedom-maximizing, and the fairest way to deal with the conflict between my childlessness and any plans my parents (or future people other than my never- to-be-born children) might have is to let me decide not to have children (a freedom that is not to be confused with the unacceptable freedom to have as many kids as I like). 13 The link between a generation’s level of welfare and its population has been pointed out by others, such as Bayles, 1978. 14 Similar responses were given by Bayles, 1978, and by Callahan, 1971 and Barry, 1977. 15 This point is consistent with the claim that individual animals have certain rights (as well as the denial of this claim), but I shall not discuss animal rights here. 16 International Task Force, 1985, p. 12. 17 Mares, 1986. 18 Coale, 1983. 19 Moran, Developing the Amazon (Bloomington: Indiana University Press, 1981), referred to by Mares, 1986. REFERENCES Barry, B. 1973 The Liberal Theory of Justice. Oxford, Clarendon Press. Barry, B. 1977 “Justice Between generations”, in Law, Morality and Society: Essays in Honour of H.L.A. Hart, edited by P.M.S. Hacker and J. Raz. Oxford, Clarendon Press. Bayles, Michael 1978 “Famine or Food: Sacrificing for Future or Present Generations”, in Ethics, Free Enterprise and Public Policy: Original Essays on Moral Issues in Business, edited by R. DeGeorge and J. Pichler. Oxford University Press. Beitz, C. 1979 Political Theory and International Relations. Princeton University Press. Callahan, D. 1971 “What Obligations do we have to Future Generations?” American Ecclesiastical Review 164: 273-5. Coale, A.J. 1987 “Recent Trends in Fertility in the Less Developed Countries”, Science 221: 828-32. Hospers, John 1974 “The Libertarian Manifesto”, in The Libertarian Alternative, edited by Tibor Machan. Chicago, Nelson-Hall, Inc. International Task Force 1985 Tropical Forests: A Call for Action, Part I, p.12. World Resources Institute. Mares, Michael 1986 “Conservation in South America: Problems, Consequences and Solutions”, Science 233: 734-9. Nagel, Thomas 1986 The View From Nowhere. Oxford University Press. O’Neill, Onora 1988 “Hunger, Needs and Rights”, in Problems of International Justice edited by Steven Luper-Foy, 67-84. Boulder, Westview Press. Parfit, Derek 1984 Reasons and Persons. Oxford University Press. Rawls, John 1971 A Theory of Justice. Cambridge Mass., Harvard University Press. Rawls, John 1985 “Justice as fairness”, Philosophy and public Affairs 14: 231-2. Scanlon, Thomas 1973 “Rawls’ Theory of Justice”, University of Pennsylvania Law Review 121. Scheffler, Samuel 1982 The Rejection of Consequentialism. Oxford, Clarendon Press. Smart, J.J.C. and Williams, Bernard 1973 Utilitarianism For and Against. Cambridge University Press. Williams, Bernard 1973 Problems of the Self. Cambridge University Press. 
work_zorffha2bvdsxaiqstrxrjlucm	----	None 
work_zqpwk4vg4ba53cnfharhllwspu	----	ASIL and Kirsten Campbell © 2016 227 SYMPOSIUM ON THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA: BROADENING THE DEBATE GENDER JUSTICE BEYOND THE TRIBUNALS: FROM CRIMINAL ACCOUNTABILITY TO TRANSFORMATIVE JUSTICE Kirsten Campbell* What are the legacies for gender justice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)? Darryl Robinson and Gillian MacNeil in this symposium describe the modernization of the law on sexual violence as a key legacy of the ad hoc inter- national criminal tribunals.1 However, this characterization does not capture the wider challenges that gender- based crimes have raised for the Tribunals, including other legacies of gendered hierarchies and inequalities. How, then, is it possible to move past these issues to build international criminal justice so that it transforms, rather than reproduces, gendered injustices?2 The Legacies of the Tribunals: Key Challenges for Gender Justice Key challenge one: greater criminal accountability for gender-based crimes The gendered gap in international criminal justice first became visible with the establishment of the Tribu- nals in the 1990s as a result of feminist campaigning. As Robinson and MacNeil describe, International Criminal Law (ICL) lacked both substantive definitions of, and procedural and evidential rules for, sexual violence offences. They note that the Tribunals made important progress in addressing these gaps. Further doctrinal innovations included developing modes of liability for sexual violence offences.3 The Tribunals established the legal basis of these crimes, showed that they were an integral part of the illegal conduct of these conflicts, and that they could be successfully prosecuted. * Reader, Goldsmiths, University of London. The research leading to these results has received funding from the European Research Council under the European Union's Seventh Framework Programme (FP/2007-2013)/ERC Grant Agreement n. 313626. My thanks to David Bausor, Elma Demir, Jasenka Ferizovic, Gorana Mlinarevic, Maria O’Reilly, and the editors of this symposium for their discussions of earlier drafts. Originally published online 23 November 2016. 1 Darryl Robinson & Gillian MacNeil, The Tribunals and the Renaissance of International Criminal Law: Three Themes, 110 AJIL 191 (2016). 2 See Jelke Boesten & Polly Wilding, Transformative Gender Justice: Setting An Agenda, 51 WOMEN’S STUD. INT’L FORUM, 75 (2015). 3 Prosecutor v. Stakic, Case No. IT-97-24 (Int’l Crim. Trib. for the Former Yugoslavia), Prosecutor v. Karemera et al., Case No. ICTR-98-44. http://www.jstor.org/stable/10.5305/amerjintelaw.110.2.0191?seq=1#page_scan_tab_contents http://eprints.whiterose.ac.uk/81791/ http://www.icty.org/case/stakic/4 http://unictr.unmict.org/en/cases/ictr-98-44 228 AJIL UNBOUND Vol. 110 However, the subsequent record of the Tribunals also indicates continuing gendered justice gaps.4 This uneven record includes the significant gender imbalance between male and female witnesses, which does not reflect the high numbers of women who are victims of, or surviving witnesses to, non-gender-based crimes.5 It also includes inadequate fair labelling and inaccurate characterization of these offences. For example, sexual violence has not been appropriately described in charging in some cases, while in others it has not been accurately qualified as the appropriate offence. Finally, there has been inconsistent prosecution of criminal acts, and low conviction rates in prosecuted cases. These gendered justice gaps can be attributed to four key issues. The first issues are substantive and evi- dential. These range from an overly restrictive judicial interpretation of substantive elements of offences, such as requiring proof of nonconsent (but not for other crimes), to an inaccurate application of evidential norms, such as imposing higher evidentiary standards of proof to establish links between senior officials and sexual violence committed by subordinates than for other crimes.6 Gender stereotypes and misconceptions are a second barrier. These include notions that conflict-related sexual violence is an exclusively opportunistic crime, or that survivors are reluctant to testify due to stigma. Third, institutional obstacles also block effective and equitable prosecutions. These include inadequate gender competence and/or expertise, lack of leadership or commitment to prosecution, and inadequate development or implementation of policy across the interna- tional criminal justice system.7 The fourth and final issue concerns the underdevelopment of gender-based crimes in legal doctrine and practice (as Jarvis’ important discussion shows).8 In doctrinal terms, sexual violence offences require further substantive development. While rape and other crimes of sexual violence are clearly prohibited, there is no distinct offence of sexual violence under ICL. Rather, if the requisite international elements are met, sexual violence can be prosecuted as a war crime, crime against humanity, or genocide. Moreover, the Tribunals have not provided consistent definitions of sexual violence offences. For example, the distinction between rape, sexual violence, or sexual assault remains to be fully clarified, as does consent as an element of these offences. Other crimes, such as sexual enslavement or sexual torture, also require further elaboration. In practice terms, Tribunal prosecutions and judicial findings reveal an important but only partial picture of sexual violence in these conflicts. For example, their findings provide an incomplete picture of the different forms or perva- siveness of sexual violence against men and women. This picture does not sufficiently show the connection of these acts to wider patterns of gender-based and general crime categories. As a result, the Tribunals’ bodies of jurisprudence only partially contextualize crimes of sexual violence within these conflicts.9 Moving beyond sexual violence offences, gender-based crimes more generally require significant develop- ment. Despite the absence of a specific offence of sexual violence, these crimes are the most visible of gender-based crimes in academic and public understandings of the legacy of the Tribunals. However, sexual violence is not the only gender-based crime committed in conflict. As the Tribunal cases reveal, other gender- based crimes are also likely to form an integral part of the conduct of conflict. The Tribunals have made 4 For discussion, see SERGE BRAMMERTZ & MICHELLE JARVIS, PROSECUTING CONFLICT-RELATED SEXUAL VIOLENCE AT THE IC- TY (2016); HILMI ZAWATI, FAIR LABELLING AND THE DILEMMA OF PROSECUTING GENDER-BASED CRIMES AT THE INTERNATIONAL TRIBUNALS (2014); and Office of the Prosecutor, Best Practice Manual for the Prosecution of Sexual Violence, ICTR (2014). 5 Victims and Witness Section & The Castleberry Peace Institute, Echoes of Testimony (2016). Comparable witness statistics are not available for the ICTR. 6 See Prosecutor v. Milutinovic et al., Case No. IT-05-87-T, Trial Judgment, V.1, para. 201 (Int’l Crim. Trib. for the Former Yugosla- via, Feb. 26, 2009); and Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T. 7 BRAMMERTZ & JARVIS, supra note 4; and Office of the Prosecutor, supra note 4. 8 BRAMMERTZ & JARVIS, supra note 4. 9 See Id. at 216-219 and 320-332. https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& https://global.oup.com/academic/product/fair-labelling-and-the-dilemma-of-prosecuting-gender-based-crimes-at-the-international-criminal-tribunals-9780199357109?cc=de&lang=en& https://global.oup.com/academic/product/fair-labelling-and-the-dilemma-of-prosecuting-gender-based-crimes-at-the-international-criminal-tribunals-9780199357109?cc=de&lang=en& http://unictr.unmict.org/en/documents/best-practices-manuals-and-conference-reports http://www.icty.org/x/file/About/Registry/Witnesses/Echoes-Exec-Summary_EN.pdf http://www.icty.org/case/milutinovic/4 http://unictr.unmict.org/en/cases/ictr-98-44a https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& http://unictr.unmict.org/en/documents/best-practices-manuals-and-conference-reports https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& 2016 GENDER JUSTICE BEYOND THE TRIBUNALS 229 important steps in recognizing gender-based crimes as core crimes in their jurisprudence.10 However, this jurisprudence has not adequately developed these gender elements of existing core crimes, such as elaborat- ing how attacks directed towards women on the basis of their gender can be an element of genocide. It has also not sufficiently developed the criminalization of other distinctive harms experienced by women in war, such as the disproportionate impact of particular means and methods of warfare upon women as members of the civilian population.11 Key challenge two: linking criminal justice and social transformation The key second challenge of gender justice after the Tribunals concerns how to better link international criminal accountability to broader processes of social change in conflict settings. This challenge recognizes that international criminal accountability will provide only a partial component of the wider agenda of trans- formative gender justice. In the Symposium, Milanović, Kendall, and Nouwen acknowledge the limits of the “retributive legal form” of international prosecutions in effecting postconflict transitions in Rwanda and Yugoslavia.12 However, addressing this challenge also requires acknowledging that international prosecutions of sexual violence alone do not provide gender justice, whether in terms of addressing the individual material and social needs of survivors, or the broader collective challenge of transforming gendered inequalities. The fragmented approach of criminal and civil justice policies to sexual violence and gender-based crimes in Rwanda and the former Yugoslavia has been particularly damaging for survivors of these crimes and for these postconflict societies. These legacies of the Tribunals show the necessity of linking international crimi- nal justice to national prosecutions of gender-based and sexual violence crimes. They also show why it is essential to integrate prosecutions and national postconflict processes, and to include women and gender policies in those postconflict processes. A Dual Strategy for Transformative Gender Justice To move gender justice beyond the current trend of the modernization of sexual violence norms and prac- tices requires a dual strategy. This strategy involves developing a new international instrument, such as a convention on the prohibition, prevention, and punishment of sexual violence and gender-based crimes, which fully articulates these elements of gender justice prosecutions. It also involves formulating framework principles that incorporate criminal justice into peace agreements and national prosecutions, as well as linking criminal prosecutions and civil justice programs (including reparations, advocacy, economic and psycho-social support). Convention On The Prohibition, Prevention, And Punishment Of Sexual Violence and Gender-Based Crimes The proposed convention would set out the offences of sexual violence and gender-based crimes. It would also incorporate a full range of implementation, enforcement, and referral policies and mechanisms. Ideally, this would take the form of a general multilateral treaty agreed to by state parties and supported by the United Nations, with the aim of establishing generalizable rules equivalent to the general practice of states 10 For example, Prosecutor v. Krstić, Case No. IT–98–33, Appeals Judgment (Int’l Crim. Trib. for the Former Yugoslavia, Apr. 19, 2004); and Prosecutor v. Akayesu, ICTR-96-4 respectively. 11 See JUDITH GARDAM & MICHELLE JARVIS, WOMEN ARMED CONFLICT AND INTERNATIONAL LAW (2001). 12 Sara Kendall & Sarah M. H. Nouwen, Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda, 110 AJIL 212 (2016); Marko Milanović, The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem, 110 AJIL 233, 235 (2016). http://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdf http://unictr.unmict.org/en/cases/ictr-96-4 http://www.brill.com/women-armed-conflict-and-international-law https://www.repository.cam.ac.uk/bitstream/handle/1810/256422/Kendall_et_al-2016-American_Journal_of_International_Law-VoR.pdf?sequence=6&isAllowed=y http://www.jstor.org/stable/10.5305/amerjintelaw.110.2.0233?seq=1#page_scan_tab_contents 230 AJIL UNBOUND Vol. 110 supporting customary rules. This approach aims to create rules that are generally accepted norms at the international level, together with obligations to investigate and prosecute these crimes. These would be similar in operation to the Geneva Conventions of 1949 and the grave breaches enforcement obligations. The first aim of the proposed convention would be to address the current challenges of gender justice for sexual violence prosecutions. This approach would address the fragmented nature of the existing legal framework by developing a comprehensive definition of the offence of sexual violence covering all conflicts by all actors at all levels of responsibility. This definition should build upon the customary international rule that prohibits sexual violence in conflict. It would aim to “codify” important legal developments of the offence of sexual violence in international law. It would also seek to clarify current substantive and evidential issues (such as the issue of consent), and to extend the existing rules so that they articulate the substantive elements of the offence, and modes of liability, and widen the category of actors subject to these obligations. These rules would aim to create obligations upon all actors in conflict, whether the conflict is international or noninternational, and whether the actors are state, nonstate, or third party actors in transnational conflicts.13 This is necessary to address remaining differences in applicable law governing these situations of conflict, and questions as to which law serves as the basis for the imposition of individual criminal responsibility in national or international courts. Accordingly, the proposed convention would set out sexual violence as a differentiated, specified and seri- ous criminal offence under international criminal law.14 This would set out the elements of the offence, criminal responsibility, and applicability, including: (1) the category of acts of a sexual nature prohibited under international law (the elements of sexual violence offences); (2) the modes of commission of the acts in the coercive circumstances of genocide, crimes against humanity, or armed conflict, whether internal or international (the contextual elements of interna- tional crimes); (3) the responsibility of state and non-state actors, including United Nations peace-keeping forces, private military companies, and paramilitaries; (4) the modes of liability of military and civilian leadership and their responsibility for other armed actors, regardless of their relationship to state parties to the conflict; (5) the application of these norms to all victims, whether or not they belong to any party to the con- flict. With this approach, the convention would be able to specify the different forms of perpetration of con- flict-related sexual violence. It would differentiate between gender-based crimes classified in terms of the core crime categories that give the conduct its character as an international crime, which would include (i) nexus to armed conflict, (ii) an attack upon a civilian population, or (iii) the destruction of a protected group. It would thereby enable the development of sexual violence offences as part of general crime categories, as well as a distinct offence rising to the level of an international crime. The convention should also set out compliance, enforcement, responsibility, and reparation obligations of equivalent gravity to other serious violations of international humanitarian law, and draw on existing obliga- 13 See Patricia Sellers, Sexual Violence and Peremptory Norms: The Legal Value of Rape, 34 CASE W. RES. J. INT’L L. 287 (2002). 14 See Kirsten Campbell, The Gender of Transitional Justice, 1 INT’L J. TRANSITIONAL J. 411 (2007). https://ic.ucsc.edu/~rlipsch/pol160A/Sellers.pdf https://academic.oup.com/ijtj/article-abstract/1/3/411/2356919/The-Gender-of-Transitional-Justice-Law-Sexual 2016 GENDER JUSTICE BEYOND THE TRIBUNALS 231 tions under this legal regime. To strengthen implementation, the instrument should include mechanisms and measures such as: • investigative commissions and referral mechanisms to appropriate international bodies; • obligations to investigate and prosecute, including the obligation to establish universal jurisdiction; • review mechanisms and standards for prosecutions, including review of conflict-related sexual vio- lence patterns of prosecution, trial practices, and sentencing; and • “outreach” and public information strategies within judicial and security sector institutions. The second aim of the proposed convention is to address the challenges of providing gender justice for gender-based crimes. Accordingly, this requires developing both the legal categories of gender-based crimes, and improving legal practice in this area. To do this, the proposed convention would build upon and expand the proposed approach to sexual violence outlined above. However, this is a considerably more complex task. Jarvis cautions that focusing on sexual violence as a separate category can be in tension with the aim of situating sexual violence in the context of other gender harms and crimes committed in the course of the conflict.15 At a normative level, the issue is how to capture different patterns of sexual violence in elements of crimes, modes of liability, and evidential standards, such that sexual violence can be linked to other gender based crimes and contextualized within the broader patterns of illegal conduct of contemporary forms of conflict. This issue is integrally tied to the fundamental challenge of rearticulating gender harms in ICL.16 This requires revising existing substantive elements of core crimes to incorporate a gender framework. For example, Patricia Sellers argues that the core crime of genocide should include gender, gender identity, and sexual orientation as protected groups, and Jarvis identifies persecution, unlawful attacks on a civilian popula- tion, and definitions of armed violence as areas for further development of a gender perspective.17 However, achieving this second aim also requires integrated policy and practice across all sections of judicial institutions and all sectors of the international criminal justice system seeking to prosecute these crimes. The strategy of developing a convention on sexual violence and gender-based crimes is only one building block for address- ing these wider challenges that gender-based crimes pose to international criminal justice. Framework Principles for Peace Agreements and National Criminal Justice: Linking Criminal And Civil Justice For Sex- ual Violence and Gender-Based Crimes An integral part of the wider challenge of transformative gender justice involves recognizing that interna- tional criminal accountability will only be a partial component of the larger transformative agenda of gender justice. Unless this approach is taken, international prosecutions will be less successful in providing accounta- bility for gender-based crimes, and will not fully provide justice to these groups of victims. Ultimately, these failures can jeopardize postconflict reconciliation. International and national prosecutions must involve active engagement with the affected victims and with broader society in order to develop effective postconflict strategies to end impunity and nonrecurrence of these crimes. On this basis, it is necessary to consider how to tie international criminal accountability to broader process- es of social change in national conflict settings. While domestic prosecutions are now seen as the cornerstone 15 See BRAMMERTZ & JARVIS, supra note 5, at 7. 16 This point was identified in dialogue with Nela Porobic Isakovic, Michelle Jarvis, Gorana Mlinarevic, Patricia Sellers, and Du- bravka Zarkov. 17 See Patricia Sellers, Sexual Violence in Conflict: A War Crime, HOUSE OF LORDS PAPER NO. 23, HOUSE OF LORDS SELECT COMMIT- TEE ON SEXUAL VIOLENCE IN CONFLICT, (Apr. 12, 2016); and BRAMMERTZ & JARVIS, supra note 5, at 16. https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& http://www.publications.parliament.uk/pa/ld201516/ldselect/ldsvc/123/12306.htm#_idTextAnchor012 https://global.oup.com/academic/product/prosecuting-conflict-related-sexual-violence-at-the-icty-9780198768562?cc=de&lang=en& 232 AJIL UNBOUND Vol. 110 of international criminal justice, they cannot function effectively without better strategies for addressing the considerable difficulties that prosecutions of gender-based crimes face in national jurisdictions. These in- clude: • the broader conflict and postconflict context; • existing obstacles in domestic systems, such as legal or cultural norms or practices; • harmonization of standards (such as international legal norms) and best practice (legal and institu- tional) between international and national courts; • how to build upon legal traditions of national cultures in establishing or developing national prose- cutions; and • the provision of sufficient economic and political resources for effective prosecutions. One crucial aspect of this effort will be to develop framework principles that can provide the basis for in- tegrating strategies for criminal and civil accountability for conflict-related sexual violence and gender-based crimes at national and international levels. These guiding principles would establish the basis for the negotia- tion of peace agreements, and the accompanying development of national criminal and civil justice strategies. The principles ought to incorporate the international standards for prosecutions set out in the proposed convention, such that they would establish investigative, implementing, and review mechanisms, together with relevant standards of criminal and civil accountability. These principles should include at least four key elements: (1) meaningful and active participation of women and inclusion of gender justice policies in all levels of peace talks and decision-making mechanisms, as well as in all criminal and civil justice institu- tions, and any bodies responsible for implementation; (2) assessment of gaps in existing criminal and civil justice provision at the national level, such as the lack of capacity or legal basis for prosecuting offenders or compensating victims of sexual and gender-based crimes; (3) identification of implementing mechanisms and parties, including review, report, “outreach” and public information elements; and (4) provision of reparations, psycho-social and economic support, and strategic advocacy. To implement this dual strategy would require support within, and across, institutions in all sectors. Institu- tional reform would include prioritizing competence in gender issues and conflict-related sexual violence expertise, together with centralizing gender issues in all relevant activities, including equal representation of men and women at all levels. It is clear from the experience of the Tribunals that an integrative approach that addresses these issues at international and national levels is necessary to combat continuing cultures of impunity for sexual violence and gender-based crimes. It is also essential to provide more equitable and effective postconflict gender justice and peace building in national jurisdictions.18 Addressing sexual violence and gender-based crimes in conflict remains a critical area for developing gen- der justice for international crimes. A dual strategy for international criminal accountability that develops a convention for sexual violence and gender-based crimes, together with framework principles for peace 18 See Rashida Manjoo & Calleigh McRaith, Gender-Based Violence and Justice in Conflict and Post-Conflict Areas, 44 CORNELL INT’L L.J. 11 (2011). http://www.lawschool.cornell.edu/research/ilj/upload/manjoo-mcraith-final.pdf 2016 GENDER JUSTICE BEYOND THE TRIBUNALS 233 agreements and national prosecutions, is the best next step for building transformative gender justice. With this strategy, international criminal justice can not only build upon the important legacy of the Tribunals, but also move beyond its impasses. 
work_ztovejweojbn5gx4mup3wx7g4a	----	Rough Justice | SpringerLink Advertisement Search Log in Search SpringerLink Search Original Article Published: 27 March 2019 Rough Justice Robert E. Goodin  ORCID: orcid.org/0000-0002-1704-58171  Jus Cogens volume 1, pages77–96(2019)Cite this article 811 Accesses 1 Altmetric Metrics details Abstract Informal justice often is castigated as rough justice, procedurally unauthorized and substantively unrationalized and prone to error. Yet those same features are present, to some extent, in formal justice as well: they do not form the basis for any sharp categorical contrast between formal and informal justice. Furthermore, some roughness in justice may be no bad thing. Certain of those elements of roughness in formal justice are inextricably bound up with other features of formal justice that are rightly deemed morally important. And rough informal justice can sometimes be used to change formal justice in more just directions. This is a preview of subscription content, access via your institution. Access options Buy single article Instant access to the full article PDF. US$ 39.95 Tax calculation will be finalised during checkout. Subscribe to journal Immediate online access to all issues from 2019. Subscription will auto renew annually. US$ 79 Tax calculation will be finalised during checkout. Rent this article via DeepDyve. Learn more about Institutional subscriptions Notes 1.Elster 2012, 83. 2.Holmes Jr 1931, 501. 3.“In the peak years of the foreclosure crisis, from 2007 to 2012, almost one American adult in twenty lost a home because of the inability to afford the mortgage payments” (Martin and Niedt 2015, 5). Subprime, exotic, and zero-down-payment mortgages were mostly to blame (Immergluck 2008). 4.Their exploits are chronicled at the websites of “Eviction Resistance” https://evictionresistance.squat.net/ and “Eviction Free Zone” https://libcom.org/blog/sxb1831 (see further European Action Coalition (2016)). On the 1930s, parallels see Naison (1986) and Albrecht (2009). 5.Manjikian (2013, 13) quotes a Ministry of Justice report that “squatting has doubled in Britain since the beginning of the 2008 recession.” 6.AFFLIL 2006; Colau and Alemany 2012; European Action Coalition 2016. 7.Colau and Alemany 2012, 119–20. 8.Chomsky 2013. 9.Naison 1986. 10.Certainly there was much talk—even in Senate filibusters against anti-lynching legislation as late as 1938 (Thomas-Lester 2005)—of lynchings as an ostensibly moralized response to rapes of white women by black men. But such lynchings were much more often public spectacles rather than private redress by family and friends alone, which leads many to conclude that their aim was much more boundary maintenance and reinforcing the racialized order than meting out justice to particular perpetrators (Myrdal 1944, 587, 606; Smångs 2016). 11.Pfeifer 2004, 2011; Waldrep 2002, ch. 3. There too, of course, some lynchings and other forms of rough justice were also motivated by racial, ethnic, or religious prejudice or a desire for social or political oppression. The San Francisco Vigilance Committee of 1856 railed, somewhat indiscriminately, against “Catholics, Jews, immigrants, Negroes, laboring men and labor leaders, political radicals and proponents of civil liberties” (Brown 1975, 197; Little and Sheffield 1983, p. 803 n 17). And in the borderlands, there were many racially motivated lynchings of people of Mexican descent (Carrigan and Webb 2003). 12.Vigilantism more generally is defined as “a voluntary activity engaged in by ... private voluntary agents... without the state’s authority or support” (Johnston 1996, 226). 13.“Just deserts” may be imprecise or indeterminate at the margins—the point is just that rough justice operates outside the bounds of that indeterminacy. The Oxford English Dictionary similarly defines “rough justice” as “harsh, arbitrary, or heavy-handed treatment or punishment, esp. that which is regarded as approximately fair but which is not necessarily in accordance with the law” (see similarly Alson 2013b, para. 66). Vermeule (2012, 163) similarly calls reparations for historical injustices “rough justice” on the grounds that, although inadequate, “no compensation would be even less tolerable than a spasmodic lurch in the general direction of justice.” 14.Kirchheimer 1961; Shklar 1964. 15.MacIntyre 1988. 16.Hussain (2012, 112) similarly dubs boycotts organized by ethical consumers an improper form of “vigilantism” on procedural grounds. 17.The examples I shall be using alternate indiscriminately between negative justice (punishment for wrong doing) and positive justice (distribution of social benefits). Much the same issues arise in both domains. It may be worse for justice, whether formal or informal, to be rough in one of those domains than the other. But roughness occurs in both domains, for broadly the same reasons. 18.Original nineteenth-century parlance differed in this respect (Waldrep 2002, 29, 33 and chs 1, 3 passim). 19.When asked if he was enjoying his job, President Lincoln is said to have replied with the anecdote about a man who had been tarred and feathered and was being ridden out of town on a rail: when someone asked if he was enjoying the ride, he is said to have replied, “if it wasn’t for the honor of the thing, I’d rather walk.” 20.Thompson 1991. 21.Quoted in Tankebe 2009, 245. 22.Stone 1979; Betts 2008. 23.Quoted in Pfeifer 2004, 23. 24.If not in that case, perhaps in the Nepalese case of Maoist women beating to death men who kidnap girls for sale in India as sex slaves. 25.Quoted in Pfeifer 2004, 1. 26.Blackstone 1765, bk. 3, ch. 1, sec. iv, emphasis added. Obviously, those are different sorts of cases than those just presented, where the victims of the rough justice pose no ongoing threat to its perpetrators. 27.OED 2014, qv. “self-help.” 28.The miners’ committees yielded without protest to Canadian law as soon as the Mounties appeared—to the pleasant surprise of officials in Ottawa (Stone 1979). 29.Locke 1690, sec. 8. 30.Epstein 1968, 2–3. Anthropological evidence suggests that primitive law evolves beyond this point quickly (Campbell 1988), but popular justice persists alongside formal systems of justice for some time (Forsdyke 2008). 31.Which Locke 1690, sec. 14) immediately recognized as akin to his imagined state of nature (for the history, see Hindmarsh 1932). 32.Even with the advent of the International Criminal Court, that Court remains at the mercy of states to permit investigations on their soil, to apprehend wanted persons, and to enforce the Court’s judgments (Bosco 2014, 4). 33.Hindmarsh 1932. Kelsen 1952, pp. 14–16. ALI 1987, sec. 905. Schwartz 1994, pp. 373–8. Mancilla 2016. The “right of self-defense” remains even to this day under the UN Charter (1945, article 51). 34.Kelsen 1952, p. 15, building on, e.g.: Grotius 1625, bk. 2, ch. 2, secs 6–10; Pufendorf 1699, bk. 1, sec. 5, subsec. 23; Wolff 1749, ch. 3, sec. 338–41; de Vattel 1758, bk. 2, secs 3–4, 120 (see, more recently Crawford (2002, 61), Nissel (2006), and Evans and Sahnoun (2001)). 35.Locke 1690, sec. 13. 36.Quoted in Pfeifer 2004, 112. Indeed, the official motto of the Indiana Regulators of 1858 was, “No expense to the County” (Little and Sheffield 1983, 804 n 18). 37.Lincoln 1838. 38.The temptation arises from a fusion of positivism (all law must derive its ultimate authority from being authorized by some rule of recognition of the system) and functionalism (to persist, law must be reasonably effective in serving its social function of providing justice). 39.Notice that even practitioners of rough informal justice often strive to do so in rule-bound ways. They set up informal courts, hear testimony from all parties who are often represented by advocates, and decide the case by majority vote (Pfeifer 2004; Kirkpatrick 2012, 277–8). Some Vigilance Committees wrote literal constitutions structuring the organizations, containing a statement of purpose and detailing procedures that would govern its activities (see, e.g., the “Regulations and Bye Laws” of the Montana Vigilantes (reprinted in Birney (1929, 218–21)). 40.MacCormick 2005, esp. ch. 5. 41.Cf. Levi (1948, 2) on the “dynamic quality of law.” 42.For example, a failed amendment to the 1975 tax code in the USA, couched in general but highly precise terms, would have benefited only a small handful of people and fully a tenth of its benefits would have gone to H. Ross Perot alone (Hardin 1982, 78–9). 43.Thaman 2011. 44.Unless the court forbids it, which it is empowered to do (ABA 2004, Standard 18.C). 45.Sunstein 1995, 1996. 46.Gaus 2011. 47.Just as were those individuals exercising self-help through “private reprisals” authorized by their sovereign under treaty and customary law that grew up during the Middle Ages surrounding that practice (da Legnano 1360, chs 122–162; Hindmarsh 1932, 316–8). Notice that the US Congress is explicitly given the power to grant letters of reprisal (US Constitution, art. 1, sec. 8, cl. 11). 48.Pfeifer 2004, 40. Even if not literally deputized, members of a posse comitatus would under common law have, Blackstone (1765, bk. 4, ch. 21) tells us, “the same powers, protection and indemnification, as if acting under the warrant of a justice of the peace.” That applies, in his example, to “raising a hue and cry”—a process in which “both officers and private men are concerned ... of pursuing, with horn and with voice, all felons.” Kelsen (1952, 14) similarly remarks that “if the legal order leaves these [self-help] functions to the individuals injured by the delict, ... the individuals appear to “take the law into their own hands,” [but] they may nevertheless be considered acting as organs of the community... The avenger does not violate the law; he executes the law and hence may be considered as an organ of the legal community constituted by the legal order.” 49.Judge Upton, presiding over the trial of soldiers involved in a lynching in Walla Walla, WA, in 1891, bemoaned the circumstances that made “vigilante committees seem to have [an] excuse for existing.” He went on to express hope that the “action of a determined, active, fearless grand jury will avoid the necessity of a large, less desirable, and more expensive organization, the committee of safety,” which he called “the last resort of a civilized community against organized lawlessness” (quoted in Pfeifer 2004, 99). 50.Perhaps the most elaborate are the “Regulations and Bye Laws” of the Montana Vigilantes (reprinted in Birney 1929, 218–21; see further Smurr 1958). But if Edgar Allen Poe’s (1836) possibly apocryphal account is to be believed, even Judge Lynch’s original group of vigilantes had a formally written charter. 51.Wister 1902, pp. 435–6. Note similarly the 1856 San Francisco Vigilance Committee justifying their action saying, “they did right, having in view this grand republican principle—the will of good people should be the law of our land,” or a vigilante leader who rose to become Chief Justice of the Oregon Supreme Court asking, “if the people possess the power to appoint one man to hang another, may they not make a court to hang, if need be, another court that they have made?” (quoted in Kirkpatrick 2008, 45, 47, see also introduction and ch. 2; see also Pfeifer 2011, 15). 52.Cf. Pettit 1997; Goodin 2003. 53.Quoted in Waldrep 2002, 57. 54.Note, however, that everything I say about delegated authorities is true of courts, too: they are only genuinely acting with authority when acting within the terms of the laws that confer jurisdiction upon them. 55.Lipsky 1980; Brodkin 2012. 56.Consider the case of privateers of old: the letters of marque under which they were legally empowered to seize other countries’ ships typically specified which countries’ ships could be seized and in what waters; and privateers who operated outside the limits of those powers granted in their letters of marque were operating outside the law and were subject to sanctions. Thus, Captain William Kidd, originally legally commissioned as a privateer, was eventually hung for piracy. 57.“Semi-arbitrary” because its exercise is usually subject to review and appeal—but, as I have said, that happens later and elsewhere. 58.We can make the allocations to each more precisely conform to their just deserts by giving lower level officials more discretion in the application of the rules. That makes our decisions less rough in their “rightness”—but at the cost of those making them more “roughly authorized.” Or we can make reduce roughness in the rules we make by avoiding committing ourselves to rationales that set precedents that would apply in unfortunate ways to situations we cannot foresee. That once again purchases less roughness in the “rightness” of the rules and their application to particular cases—this time, at the cost of more roughness in the “rationalization” given for those rules. 59.That can also be true of practices within and formal systems of justice as well, of course. Lower court judges can decide cases contrary to the existing body of case law in hopes of getting a bad precedent overturned on appeal, for example. And juries can exercise “jury discretion,” refusing to convict people of crimes that they think should be removed from the statute books. 60.Or to establish a system of formal justice in the first place, as on the goldfields; or to securing enforcement of laws already on the books, as when eco-warriors harass illegal whalers in international waters (Sea Shepherd 2014). 61.Nozick 1981, 391. According to one standard definition, civil disobedients must act openly and be prepared to accept punishment for their actions. It may be prudent for practitioners of rough justice to do likewise whenever trying to force formal systems of justice in more just directions. But their behaving in that way should not be built into the very definition of “justice-forcing rough justice,” in the same was as it is into the definition of “civil disobedience” (see Kirkpatrick 2012). 62.Consider the early medieval practice of seizing the property of your debtor’s compatriots in payment of his debts (Hindmarsh 1932, 317). That could be regarded as even a rough form of justice only by those who subscribe to the doctrine uti singulis et uti universitas according to which each member of the community is responsible for the debts of all fellow members. 63.There are of course ways other than rough justice of trying to force systems to become more just: that would be the case with someone (a revolutionary, e.g.) who undertakes acts that he knows to be unjust in the present, hoping that those injustices will be justified by making the system more just in the future. 64.Alston reports mob attacks on “witches,” “‘honor’ killings of women” and “‘social cleansing’ killings” (2013, 53–65, 78–83, 87–100), all of whom members of the mob claim to believe deserve to die. Remember, all that I am attempting to do at this point in the paper is to characterize the members’ motive, and whether it was moral from their own point of view. 65.Quoted in Allen 2001, 10. 66.Under the guise of “crime control,” for example, the San Francisco Vigilance Committee of 1856 strove to wrest control of government from Irish Democrats (Johnston 1996, 229). 67.Alston 2013. 68.Either during armed conflicts (in the form of targeted assassinations) or in aggressive but authorized law enforcement (“shoot to kill” policing policies, for example). Other extrajudicial killings are done by officers of the state acting outside the scope of their formal authority, but with the state turning a blind eye to it. Yet other of those extrajudicial killings are done by groups (some organized others not) that systematically target other groups, with more or less acquiescence from the state. 69.They are certainly “rough” in the more colloquial sense of being out of all proportion to any wrong (certainly any proven wrong) committed by the victim, of course. 70.Alston (2013, 29–43) discusses the following: Albania, Hungary, Guatamala, Brazil, the Central African Republic, the Democratic Republic of the Congo, Nigeria, Burundi, Benin, Ghana, Guinea, Tanzania, Liberia, Uganda, India, Nepal, Cambodia, Indonesia, the Philippines, Papua New Guinea, and Australia. 71.As noted at the outset of this article, many lynchings (especially in the American South) were aimed at oppressing blacks and some in the West were aimed at keeping newcomers in their place. 72.In Ghana, Tankebe (2009, 259–60) finds that “vigilante self-help was fundamentally linked to people’s judgments about the trustworthiness of the police” (see similarly Alston (2013, 29–30)). 73.In the Philippines, the Davao Death Squad vigilante group has killed over 500 people since 1998, mostly “suspected petty criminals, drug dealers, gang members and street children” (Alston 2013, 38). 74.Lu 2006; Evans and Sahnoun 2001. 75.It was however retrospectively given, after a fashion, by Resolution 1244 (Henkin 1999, 827). 76.Insofar as the “responsibility to protect” doctrine on which all those interventions are based has now been accepted by a resolutions of the UN General Assembly (2009) and the UN Security Council (2006), we might regard any action taken under that doctrine as being authorized at international law, after a fashion. 77.Blair 1999 (see also Holzgrefe and Keohane 2003). 78.Henkin 1999, 827. 79.Brennan et al. 2013. What is true of norms in general is true of international norms in particular: “the lack of any single source of rules or ultimate arbiter of disputes in international affairs means that state practice remains key to the shaping of legal norms” (Wedgwood 1999, 828). 80.Goodin 2005; Brennan et al. 2013, ch. 11. Again, this is clearly true of international law (Stromseth 2003). 81.Thompson 1971, 78–9. The rights and duties had been codified in the Book of Orders between 1580 and 1630, which fell into abeyance during the Civil War, but which persisted in popular memory and local practice in many places (Thompson 1971, 107–9). 82.Thompson 1971, 113. 83.Thompson 1971, 131–2. 84.Morales 2006. 85.Anon 2006. 86.Perreault 2008, 17. 87.Anon 2006. 88.Ruzza 2013. 89.Both proponents and opponents of Morales’ action called it “nationalization,” when in fact all that happened is that the government unilaterally tore up existing contracts and rewrote them (Perreault 2008, 13). But that is illegal, too, of course. Whether “nationalization” or not, it was therefore still clearly an act of legally unauthorized “rough justice.” 90.Kirkpatrick 2008, 1; Hodges 2010. 91.Hammond 2011. In Bolivia, that came as part of recognizing the rights of indigenous peoples, specifically a right to live in accordance with their customary traditional law. Opponents alleged that it would encourage lynching, although apparently that is not part of indigenous law, and while punishing theft by death was sometimes done under indigenous law, the 2009 Constitution bans the death penalty in both ordinary and indigenous legal proceedings (Hammond 2011, 671–2, 659). References Albrecht B (2009) Cleveland eviction riot of 1933 bears similarities to current woes. Cleveland Plain Dealer, March 8. Available at http://www.cleveland.com/recession/index.ssf/2009/03/cleveland_eviction_riot_of_193.html. Accessed 24 Feb 2019 Allen F (2001) Montana vigilantes and the origins of 3-37-77. Montana: The Magazine of Western History 54(Spring):2–19 Google Scholar  Alston P (2013) Killings by non-state actors and affirmative state obligations. In Alston, The UN Special Rapporteur on Extrajudicial Executions Handbook. http://www.extrajudicialexecutions.org/LegalObservations?openCategory=0. Accessed 24 Feb 2019 American Bar Association (ABA) (2004) Standards relating to jury trials. Draft – September 2004. http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/JuryTrials.pdf. Accessed 24 Feb 2019 American Law Institute (1987) Restatement (Third) of the Foreign Relations Law of the United States. American Law Institute, St. Paul Americans for Fairness in Lending (AFFIL) (2006) AFFIL’s six principles of fairness in lending. Available at https://americansforfairnessinlending.wordpress.com/about-2/. Accessed 24 Feb 2019 Anon (2006) Morales says exploitation of Bolivia is over. Financial Times, May 11; available at http://www.ft.com/cms/s/0/f07fcaf0-e0fd-11da-90ad-0000779e2340.html#axzz2HaERLQNo. Accessed 24 Feb 2019) Betts P (2008) Property, peace and honour: neighbourhood justice in communist Berlin. Past & Present 201(Nov):215–254 Article  Google Scholar  Birney H (1929) Vigilantes. Penn Publishing Company, Philadelphia Google Scholar  Blackstone W (1765) Commentaries on the Laws of England. Clarendon Press, Oxford Google Scholar  Blair T (1999) Doctrine of the international community: speech to the Chicago Economic Club, 22 Ap. 1999. http://www.pbs.org/newshour/bb/international/jan-june99/blair_doctrine4-23.html. Accessed 24 Feb 2019 Bosco D (2014) Rough justice: the international criminal court in a world of power politics. Oxford University Press, Oxford Google Scholar  Brennan G, Eriksson L, Goodin RE, Southwood N (2013) Explaining norms. Oxford University Press, Oxford Google Scholar  Brodkin EZ (2012) Reflections on street-level bureaucracy: past, present and future. Public Adm Rev 72(Nov/Dec):940–949 Article  Google Scholar  Brown RM (1975) Strain of violence: historical studies of American violence and vigilantism. Oxford University Press, New York Google Scholar  Campbell A (1988) International law and primitive law. Oxf J Leg Stud 8:169–196 Article  Google Scholar  Carrigan WD, Webb C (2003) The lynching of persons of Mexican origin or descent in the United States, 1848-1928. J Soc Hist 37(2: Winter):411–438 Article  Google Scholar  Chomsky N (2013) Direct action, Occupy Wall Street, and the future of housing justice: an interview with Noam Chomsky. Available at https://libcom.org/blog/direct-action-occupy-wallstreet-future-housing-justice-interview-noam-chomsky-17042013. Accessed 24 Feb 2019 Colau A, Alemany A (2012) Mortgaged lives: from the housing bubble to the right to housing, trans. Michelle Teran and Jessica Fuquay. Los Angeles: Journal of Aesthetics & Protest Press. Available at http://www.joaap.org/press/pah/mortgagedlives.pdf. Accessed 24 Feb 2019 Crawford J (2002) The international law commission’s articles on state responsibility. Cambridge University Press, Cambridge Google Scholar  Elster J (2012)  Justice, truth, peace. In: Williams MS, Nagy R, Elster J (eds) Nomos LI: transitional justice. New York University Press, New York, pp 78–97 Epstein AL (1968) Sanctions. In In: Sills DL (ed) International encyclopedia of the social sciences, vol 14. Collier-Macmillan, London, pp 1–5 European Action Coalition for the Right to Housing and to the City (2016) Resisting evictions across Europe. Available at http://www.rosalux.eu/fileadmin/user_upload/resisting_evictions_across_europe.pdf. Accessed 24 Feb 2019 Evans G, Sahnoun M, co-chairs (2001) The responsibility to protect. Report of the international commission on intervention and state sovereignty, Dec 2001. Ottawa: International Development Research Centre and Department of Foreign Affairs and International Trade, Canada Forsdyke S (2008) Street theatre and popular justice in ancient Greece: shaming, stoning and starving offenders inside and outside the courts. Past & Present 201(Nov):3–50 Article  Google Scholar  Gaus G (2011) The order of public reason. Cambridge University Press, Cambridge Google Scholar  Goodin RE (2003) Folie républicaine. Annu Rev Polit Sci 6:55–76 Article  Google Scholar  Goodin RE (2005) Toward an international rule of law: distinguishing international law-breakers from would-be law-makers. J Ethics 9(2: March):225–246 Article  Google Scholar  Grotius H (1625) The law of war and peace (ed. Scott JB, trans. Kelsey FW). Oceana, New York 1964 Hammond JL (2011) Indigenous community justice in the Bolivian Constitution of 2009. Hum Rights Q 33(3: Aug):649–681 Article  Google Scholar  Hardin R (1982) Collective action. Johns Hopkins University Press, Baltimore Google Scholar  Henkin L (1999) Kosovo and the law of "humanitarian intervention." American Journal of International Law 93(4: Oct):824–828 Hindmarsh AE (1932) Self-help in time of peace. American Journal of International Law 26:315–326 Article  Google Scholar  Hodges GRG (2010) David Ruggles: a black abolitionist and the underground railroad in New York City. University of North Carolina Press, Chapel Hill Google Scholar  Holmes OW Jr (1931) Opinion of the US Supreme Court. Bain Peanut Co. v. Pinson, 282 U.S. 499–502 Holzgrefe JL, Keohane RO (eds) (2003) Humanitarian intervention: ethical, legal and political dilemmas. Cambridge University Press, Cambridge Google Scholar  Hussain W (2012) Is ethical consumerism an impermissible form of vigilantism? Philos Public Aff 40:111–143 Article  Google Scholar  Immergluck D (2008) From the subprime to the exotic: excessing mortgage market risk and foreclosure. J Am Plan Assoc 74(1):59–76 Article  Google Scholar  Johnston L (1996) What is vigilantism? Br J Criminol 36(S):220–236 Article  Google Scholar  Kelsen H (1952) Principles of international law. Rinehart, New York Google Scholar  Kirchheimer O (1961) Political justice. Princeton University Press, Princeton Google Scholar  Kirkpatrick J (2008) Uncivil disobedience. Princeton University Press, Princeton Google Scholar  Kirkpatrick J (2012) Democracy on the lam: crisis, constitutionalism, and extra legality. Contemporary Political Theory 11:264–284 Article  Google Scholar  Legnano, Giovanni (1360) De bello, de represaliis et de duello (ed. Holland TE, trans. Brierly JL). Carnegie Institution, Washington, 1917 Levi EH (1948) An introduction to legal reasoning. University of Chicago Press, Chicago Google Scholar  Lincoln A (1838) Address before the Young Men’s Lyceum of Springfield, Illinois, January 27, 1838. http://constitution.org/lincoln/lyceum.htm. Accessed 24 Feb 2019 Lipsky M (1980) Street level bureaucracy. Russell Sage, New York Google Scholar  Little CB, Sheffield CP (1983) Frontiers of criminal justice: English private prosecution societies and American vigilantism in the eighteenth and nineteenth centuries. Am Soc Rev 48(6: Dec):796–808 Article  Google Scholar  Locke J (1690) Second treatise of government, ed. Peter Laslett. Cambridge University Press, Cambridge 1960 Google Scholar  Lu C (2006) Just and unjust interventions in world politics. Palgrave Macmillan, Houndmills Google Scholar  MacCormick N (2005) Rhetoric & the rule of law. Oxford University Press, Oxford Google Scholar  MacIntyre AC (1988) Whose justice? Which rationality? University of Notre Dame Press, Notre Dame Google Scholar  Mancilla A (2016) The right of necessity. Rowman & Littlefield, London Google Scholar  Manjikian M (2013) Securitization of property squatting in Europe. Routledge, New York Google Scholar  Martin IW, Niedt C (2015) Foreclosed America. Stanford University Press, Stanford Google Scholar  Morales E (2006) Supreme Decree No. 28701 (‘Heroes of the Chaco’), (trans. Escobar AA and Vargas JA). Int Leg Mater 45(4: July):1020–1022 Google Scholar  Myrdal G (1944) An American dilemma. Harper & Brothers, New York Google Scholar  Naison M (1986) From eviction resistance to rent control – tenant activism in the great depression. In: Lawson R (ed) The Tenant Movement in New York City, 1904-1984. Rutgers University Press, New Brunswick, ch. 3 Nissel A (2006) The ILC articles on state responsibility: between self-help and solidarity. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2070210. Accessed 24 Feb 2019 Nozick R (1981) Philosophical explanations. Harvard University Press, Cambridge Google Scholar  OED (2014) Oxford English dictionary. Oxford University Press, Oxford Google Scholar  Perreault T (2008) Natural gas, indigenous mobilization and the Bolivian State. Geneva: United Nations Research Institute for Social Development; available at http://www.unrisd.org/80256B3C005BCCF9/search/D96F71885FB60F74C1257512002F471E?OpenDocument. Accessed 24 February 2019 Pettit P (1997) Republicanism. Clarendon Press, Oxford Google Scholar  Pfeifer MJ (2004) Rough justice: lynching and American society 1874–1947. University of Chicago Press, Chicago Google Scholar  Pfeifer MJ (2011) The roots of rough justice: origins of American lynching. University of Illinois Press, Urbana Google Scholar  Poe EA (1836) Lynch’s law [1780]. Southern Literary Messenger. 2(6: May):389. Available at: http://www.eapoe.org/works/misc/lynchlaw.htm. Accessed 24 Feb 2019. Reprinted in Waldrep C (ed) Lynching in America. New York University Press, New York, pp. 30–1 Pufendorf S (1699) On the law of nature and nations, trans: CH and Oldfather WA. Clarendon Press, Oxford 1934 Google Scholar  Ruzza A (2013) Expropriation and nationalization. Max Planck Encyclopedia of Public International Law. Available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1541. Accessed 24 February 2019 Schwartz RE (1994) Chaos, oppression and rebellion: the use of self-help to secure individual rights under international law. Boston University International Law Journal 12:255–320 Google Scholar  Sea Shepherd (2014) Who we are: laws and charters. Available at http://www.seashepherd.org.au. Accessed 24 February 2019 Shklar JN (1964) Legalism: law, morals and political trials. Harvard University Press, Cambridge Google Scholar  Smångs M (2016) Doing violence, making race: southern lynching and white racial group formation. Am J Sociol 121(5: Mar.):1329–1374 Article  Google Scholar  Smurr JW (1958) Some afterthoughts on the vigilantes. Montana: the Magazine of Western History 8(2: Ap):8–20 Google Scholar  Stone T (1979) The Mounties as vigilantes: perceptions of community and the transformation of law in the Yukon, 1885-1897. Law Soc Rev 14(1):83–114 Article  Google Scholar  Stromseth J (2003) Rethinking humanitarian intervention: the case for incremental change. In: Holzgrefe JL, Keohane RO (eds) Humanitarian intervention: ethical, legal and political dilemmas. Cambridge University Press, Cambridge, pp 232–272 Sunstein CR (1995) Incompletely theorized agreements. Harv Law Rev 108(7: May):1733–1772 Article  Google Scholar  Sunstein CR (1996) Leaving things undecided. Harv Law Rev 110(Nov):4–101 Google Scholar  Tankebe J (2009) Self-help, policing and procedural justice: Ghanaian vigilantism and the rule of law. Law Soc Rev 43:245–270 Article  Google Scholar  Thaman SC (2011) Should criminal juries give reasons for their verdicts. Chicago-Kent Law Review 86:613–668 Google Scholar  Thomas-Lester A (2005) A Senate apology for history on lynching. Washington Post, June 15; available at http://www.washingtonpost.com/wp-dyn/content/article/2005/06/13/AR2005061301720.html. Accessed 24 February 2019 Thompson EP (1971) The moral economy of the English crowd in the eighteenth century. Past & Present 50:76–136 Article  Google Scholar  Thompson EP (1991) Rough music. In Thompson, Customs in common. Merlin Press, London, pp 467–538 Reprinted in part as: Rough music reconsidered. Folklore, 103 (1) (1992):3–16 United Nations (UN) (1945) Charter of the United Nations Available at http://www.un.org/en/documents/charter/. Accessed 24 February 2019 United Nations General Assembly (2009) Resolution A/RES/63/308: the responsibility to protect. Available at http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/63/308&Lang=E. Accessed 24 February 2019 United Nations Security Council (2006) Resolution S/RES/1674: protection of civilians in armed conflict. Available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1674. Accessed 24 February 2019 Vattel E (1758) The law of nations, trans. Joseph Chitty. T. & J.W. Johnson, Philadelphia 1863 Vermeule A (2012) Reparations as rough justice. In: Williams MS, Nagy R, Elster J (eds) Nomos LI: Transitional Justice. New York University Press, New York, pp 151–165 Wedgwood R (1999) NATO’s campaign in Yugoslavia. American Journal of International Law 93(4):828–834 Article  Google Scholar  Wister O (1902) The Virginian. Macmillan, London Google Scholar  Wolff C (1749) The law of nations treated according to a scientific method (trans: Drake JH). Clarendon Press, Oxford 1934 Google Scholar  Download references Acknowledgements I am grateful for comments from Jelena Belic, Joachim Blatter, Patrick Dunleavy Matthew Festenstein, Katrin Flikschuh, Rainer Forst, Charles Girard, Simon Hope, Turku Isiksel, Peter John, Alejandra Mancilla, Mihaela Mihai, David Miller, Serena Oslaretti, Stefan Rummens, Kai Spiekermann, Ana Tanasoca, Nicolas Tavaglione, Tom Theuns, Andrew Williams, and Lea Ypi. Author information Affiliations School of Philosophy, Australian National University, Canberra, ACT, 2601, Australia Robert E. Goodin Authors Robert E. GoodinView author publications You can also search for this author in PubMed Google Scholar Corresponding author Correspondence to Robert E. Goodin. Additional information Prior Presentation Earlier versions of this paper have been presented as the Brian Barry Memorial Lecture at LSE and as lectures at the Universities of Barcelona, Bergen, Frankfurt, Geneva, Leuven, Luzern, Milan, Sciences-Po and York and the annual conferences of the Society for Applied Philosophy in Oxford and of the Association for Legal and Social Philosophy in Stirling. Rights and permissions Reprints and Permissions About this article Cite this article Goodin, R.E. Rough Justice. Jus Cogens 1, 77–96 (2019). https://doi.org/10.1007/s42439-019-00003-z Download citation Published: 27 March 2019 Issue Date: 01 September 2019 DOI: https://doi.org/10.1007/s42439-019-00003-z Keywords Rough justice Informal justice Formal justice Access options Buy single article Instant access to the full article PDF. US$ 39.95 Tax calculation will be finalised during checkout. Subscribe to journal Immediate online access to all issues from 2019. Subscription will auto renew annually. US$ 79 Tax calculation will be finalised during checkout. Rent this article via DeepDyve. Learn more about Institutional subscriptions Advertisement Over 10 million scientific documents at your fingertips Switch Edition Academic Edition Corporate Edition Home Impressum Legal information Privacy statement California Privacy Statement How we use cookies Manage cookies/Do not sell my data Accessibility Contact us Not logged in - 128.182.81.34 North East Research Libraries (8200828607) - LYRASIS (3000176756) - Carnegie Mellon University (3000133174) - Carnegie Mellon University Hunt Library (1600047252) Springer Nature © 2021 Springer Nature Switzerland AG. Part of Springer Nature. \ 
work_yu63gd3eyze3nfhtwgvmgpm6zu	----	ACCESS TO JUSTICE HAL Id: hal-01241668 https://hal.archives-ouvertes.fr/hal-01241668 Submitted on 10 Dec 2015 HAL is a multi-disciplinary open access archive for the deposit and dissemination of sci- entific research documents, whether they are pub- lished or not. The documents may come from teaching and research institutions in France or abroad, or from public or private research centers. L’archive ouverte pluridisciplinaire HAL, est destinée au dépôt et à la diffusion de documents scientifiques de niveau recherche, publiés ou non, émanant des établissements d’enseignement et de recherche français ou étrangers, des laboratoires publics ou privés. ACCESS TO JUSTICE Ashley Terlouw, Barbara Liegl, Katrin Wladasch, Niall Crowley, Daniel Borrillo, Vincent-Arnaud Chappe To cite this version: Ashley Terlouw, Barbara Liegl, Katrin Wladasch, Niall Crowley, Daniel Borrillo, et al.. ACCESS TO JUSTICE: A SOCIOLOGICAL STUDY ON CASES OF DISCRIMINATION IN THE EU. Human European Consultancy in partnership with the Ludwig Boltzmann Institute of Human Rights; Ashley Terlouw, Barbara Liegl, Katrin Wladasch and Niall Crowley ACCESS TO JUSTICE – A SOCIO- LOGICAL STUDY ON CASES OF DISCRIMINATION IN THE EU – FRA D/SE/10/05, 2011. �hal-01241668� https://hal.archives-ouvertes.fr/hal-01241668 https://hal.archives-ouvertes.fr Access to justice – A sociological study on cases of discrimination in the EU ACCESS TO JUSTICE – A SOCIOLOGICAL STUDY ON CASES OF DISCRIMINATION IN THE EU – FRA D/SE/10/05 FINAL REPORT - Version 30 November 2011 Ashley Terlouw, Barbara Liegl, Katrin Wladasch and Niall Crowley Human European Consultancy in partnership with the Ludwig Boltzmann Institute of Human Rights Human European Consultancy Maliestraat 7 3581 SH Utrecht Netherlands Tel +31 30 634 14 22 Fax +31 30 635 21 39 office@humanconsultancy.com www.humanconsultancy.com Ludwig Boltzmann Institute of Human Rights (BIM) Freyung 6 1010 Vienna Austria Tel. +43 42 772 74 20 bim.staatsrecht@univie.ac.at http://bim.lbg.ac.at mailto:office@humanconsultancy.com http://www.humanconsultancy.com/ mailto:bim.staatsrecht@univie.ac.at 1 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Project management Human European Consultancy – Marcel Zwamborn / Kantjil Janssen / Ivette Groenendijk Ludwig Boltzmann Institute of Human Rights (BIM) – Barbara Liegl / Katrin Wladasch Central research team and main authors of this report Ashley Terlouw, Barbara Liegl, Katrin Wladasch and Niall Crowley National research teams Austria – Barbara Liegl / Katrin Wladasch Belgium – Julie Ringelheim / Jogchum Vrielink Bulgaria – Margarita Ilieva / Daniela Furtanova / Stoyan Novakov Czech Republic – Pavla Boučková / Miroslav Dvořák Finland – Tuomas Ojanen / Milla Aaltonen / Outi Lepola France – Daniel Borillo / Vincent-Arnaud Chappe Italy – Mario di Carlo / Marco Alberio United Kingdom – Caroline Gooding / Jane Aston 2 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Table of contents EXECUTIVE SUMMARY .................................................................................... 7 1 INTRODUCTION ........................................................................................ 8 1.1 Background to this study .................................................................... 8 1.2 Organisation of the research project .................................................. 9 1.3 Aim and structure of the report ......................................................... 10 2 METHODOLOGY ..................................................................................... 12 2.1 Constitutive elements of access to justice ........................................ 12 2.2 Terminology ..................................................................................... 14 2.3 The constitutive elements of access to justice ................................. 15 2.4 Literature review ............................................................................... 17 2.5 Fieldwork and processing of the data ............................................... 18 2.5.1 Organisation of the fieldwork ................................................. 18 2.5.2 Processing the information .................................................... 19 2.5.3 The sample ............................................................................ 20 2.6 Peer review meeting ......................................................................... 22 3 FINDINGS OF THE DESK STUDY AND LITERATURE REVIEW ............ 23 3.1 The justice systems in cases of discrimination ................................. 23 3.1.1 Type 1 – tribunal-type equality bodies and courts – Bulgaria 24 3.1.2 Type 2 – promotion-type and tribunal-type equality bodies and courts – Austria and Finland .................................................. 26 3.1.3 Type 3 – promotion-type equality bodies and courts – Belgium, the Czech Republic, France, Italy and the UK ....................... 30 3.1.4 Justice systems in cases of discrimination – summary .......... 40 3.2 Procedures ....................................................................................... 41 3.3 Support ............................................................................................. 45 3.4 Beyond the individual case ............................................................... 46 3.5 Conclusions ...................................................................................... 47 4 ACCESS TO A DISPUTE RESOLUTION BODY ...................................... 52 4.1 Structure and legislation ................................................................... 52 4.1.1 Experience of complainants of structure and legislation ........ 52 4.1.2 Views of equality bodies, “similar entities” and intermediaries on structure and legislation .................................................... 54 4.1.3 Analysis ................................................................................. 56 4.2 Geographical access ........................................................................ 57 4.2.1 Experience of complainants of geographical access ............. 58 4.2.2 Views of equality bodies, “similar entities” and intermediaries on geographical access ......................................................... 58 4.2.3 Analysis ................................................................................. 59 5 PROCEDURES ........................................................................................ 61 5.1 Fair proceedings............................................................................... 62 5.1.1 Experience and assessment of complainants of fairness of procedures ............................................................................. 62 5.1.2 Views of equality bodies, “similar entities” and intermediaries on fairness of procedures ...................................................... 64 3 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 5.1.3 Analysis ................................................................................. 67 5.2 Timely resolution of disputes ............................................................ 69 5.2.1 Experience and assessment of complainants relating to the duration of procedures ........................................................... 69 5.2.2 Views of equality bodies, “similar entities” and intermediaries on the duration of procedures ................................................ 71 5.2.3 Analysis ................................................................................. 71 5.3 Effective remedy or redress ............................................................. 72 5.3.1 Experience and assessment of complainants regarding remedies and redress ............................................................ 73 5.3.2 Views of equality bodies, “similar entities” and intermediaries on remedies and redress ....................................................... 75 5.3.3 Analysis ................................................................................. 76 5.4 Efficiency and effectiveness of procedures ...................................... 78 5.4.1 Experience and assessment of complainants relating to the outcomes of procedures ........................................................ 78 5.4.2 Views of equality bodies, “similar entities” and intermediaries on outcomes of procedures ................................................... 80 5.4.3 Analysis ................................................................................. 81 6 SUPPORT IN CASES OF DISCRIMINATION .......................................... 83 6.1 Legal advice and assistance ............................................................ 83 6.1.1 Experience and assessment of complainants of legal advice and assistance ....................................................................... 84 6.1.2 Views of equality bodies, “similar entities” and intermediaries on legal aid and assistance ................................................... 88 6.1.3 Analysis ................................................................................. 91 6.2 Emotional, personal and moral support ............................................ 92 6.2.1 Experience and assessment of complainants of emotional, personal and moral support ................................................... 92 6.2.2 Views of equality bodies, “similar entities” and intermediaries on emotional, personal and moral support ............................. 93 6.2.3 Analysis ................................................................................. 96 6.3 Awareness of rights .......................................................................... 97 6.3.1 Awareness of rights of complainants ..................................... 97 6.3.2 Views of equality bodies, “similar entities” and intermediaries on awareness of rights ......................................................... 102 6.3.3 Analysis ............................................................................... 105 6.4 Accommodation of diversity ........................................................... 107 6.4.1 Experience and assessment of complainants of accommodation of diversity ................................................. 108 6.4.2 Views of equality bodies, “similar entities” and intermediaries on accommodation of diversity ............................................ 109 6.4.3 Analysis ............................................................................... 111 7 ACCESS TO JUSTICE BEYOND THE INDIVIDUAL CASE ................... 113 7.1 Legal certainty ................................................................................ 113 7.1.1 Perceptions of complainants of legal certainty ..................... 113 4 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 7.1.2 Views of equality bodies, “similar entities” and intermediaries on legal certainty .................................................................. 114 7.1.3 Analysis ............................................................................... 116 7.2 Promoting a culture of rights .......................................................... 116 7.2.1 Perceptions of complainants of the culture of rights ............ 117 7.2.2 Views of equality bodies, “similar entities” and intermediaries on the culture of rights ......................................................... 117 7.2.3 Analysis ............................................................................... 120 8 OVERALL CONCLUSIONS AND RECOMMENDATIONS ..................... 122 8.1 Introduction .................................................................................... 122 8.2 Access to a dispute resolution body ............................................... 123 8.3 Procedures ..................................................................................... 124 8.3.1 Fair procedures .................................................................... 124 8.3.2 Timely resolution of disputes ............................................... 126 8.3.3 Effective remedy or redress ................................................. 127 8.3.4 Efficiency and effectiveness of procedures .......................... 128 8.4 Support in cases of discrimination .................................................. 130 8.4.1 Provision of support ............................................................. 130 8.4.2 Awareness of rights ............................................................. 132 8.4.3 Accommodation of diversity ................................................. 134 8.5 Beyond the individual case ............................................................. 135 8.5.1 Legal certainty ..................................................................... 135 8.5.2 Culture of rights ................................................................... 136 8.6 Recommendations ......................................................................... 137 8.6.1 Access to a dispute resolution body .................................... 138 8.6.2 Procedures .......................................................................... 138 8.6.3 Support ................................................................................ 139 8.6.4 Access to justice beyond the individual case ....................... 140 REFERENCES ................................................................................................ 141 Annex – Glossary of terms used in desk research and questionnaires ........... 168 5 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) List of abbreviations ACAS Advisory, Conciliation and Arbitration Service (UK) ADR Alternative dispute resolution ADSNT Additional Support Needs Tribunal (UK) CAB Citizen‟s Advice Bureau (UK) CEOOR Centre for Equal Opportunities and Opposition to Racism (Belgium) CEPEJ European Commission for the Efficiency of Justice CJEU Court of Justice of the European Union COMEDD Committee for the Measurement and Evaluation of Diversity and Discrimination (Comité pour la mesure et l‟évaluation de la diversité et des discriminations) (France) EC European Commission ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECNI Equality Commission for Northern Ireland (UK) ECRI European Commission on Racism and Intolerance EHRC Equality and Human Rights Commission (UK) ERRC European Roma Rights Centre ETA Equal Treatment Act (Gleichbehandlungsgesetz) (Austria) ETC Equal Treatment Commission (Gleichbehandlungskommission) (Austria) EU European Union EU-MIDIS European Union Minorities and Discrimination Survey FRA European Union Agency for Fundamental Rights FRALEX FRA network of legal experts FRANET FRA multidisciplinary research network (replaced FRALEX in 2011) HALDE Equal Opportunities and Anti-Discrimination Commission (Haute Autorité de Lutte contre les Discriminations et pour l‟Egalité) (France) IEWM Institute for the Equality of Women and Men (Belgium) INED National Institute for Demographic Studies (Institut National Etudes Démographiques) (France) LGBT Lesbian, gay, bisexual and transgender MPG Migration Policy Group MRAX Movement against Racism, Anti-Semitism and Xenophobia (Mouvement Contre le Racisme, l‟Antisémitisme et la Xénophobie) (Belgium) NHRI National human rights institution NGO Non-governmental organisation ODIHR Office for Democratic Institutions and Human Rights OET Ombud for Equal Treatment (Gleichbehandlungsanwaltschaft) (Austria) OJ Official Journal of the European Union http://www.osce.org/odihr/ 6 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) PADA Protection Against Discrimination Act (Закон за защита от дискриминация) (Bulgaria) PADC Protection Against Discrimination Commission (Комисия за защита от дискриминация) (Bulgaria) SENDIST Special Educational Needs and Disability Tribunal (UK) SPSS Statistical Package for the Social Sciences UK United Kingdom UNAR National Office Against Racial Discrimination (Ufficio Nazionale Antidiscriminazione Razziale) (Italy) UNDP United Nations Development Programme UNGA United Nations General Assembly 7 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) EXECUTIVE SUMMARY 8 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 1 INTRODUCTION 1.1 Background to this study This report is written within the framework of the project „Access to justice – A sociological study on cases of discrimination in the EU‟, commissioned by the European Union Agency for Fundamental Rights (FRA). The purpose of the project is to gain insight into the obstacles and incentives for complainants in pursuing their complaints and gaining access to justice through equality bodies or similar entities and thus to assist stakeholders in the field of access to justice in discrimination cases, to enhance the effectiveness and efficiency of their actions. The principle of non-discrimination is firmly established in EU law and EU legislation in this field includes provisions relating to access to justice. For example, Article 7 of Council Directive 2000/43/EC (Race Directive) provides that: “Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them”. 1 Other equality directives, such as the Council Directive 2000/78/EC (Employment Equality Directive), the Council Directive 2004/113/EC (Gender Goods and Services Directive) and Council Directive 2006/54/EC (Gender Employment and Occupation Directive – recast) contain the same provision. 2 Moreover, the Race Directive, the Gender Goods and Services Directive and the Gender Employment and Occupation Directive (recast) require Member States to designate a body (or bodies) which: - provides independent assistance to victims of discrimination in pursuing their complaints of discrimination; - conducts independent surveys concerning discrimination; - publishes independent reports and makes recommendations on any issue relating to such discrimination. The body or bodies designated on the basis of the provisions of these three directives are generally referred to as (specialised) equality bodies and “... may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.” 3 1 Council Directive 2000/43/EC, OJ 2000 L 180, p. 22. 2 Council Directive 2000/78/EC, OJ 2000 L 303, p. 16; Council Directive 2004/113/EC, OJ 2004 L 373, p. 37; Council Directive 2006/54/EC, OJ 2006 L 204, p.23. 3 See, for example, Council Directive 2000/43/EC, Article 13.1. 9 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The EU equal treatment directives do not contain specific requirements as to how the equality bodies should be structured to carry out their functions and activities, but guidance on the establishment and operation of these bodies can be drawn from standards developed by both the United Nations for national human rights institutions (NHRIs) – the „Paris Principles‟ 4 – and the Council of Europe‟s European Commission against Racism and Intolerance (ECRI) General Recommendations No. 2 5 and No. 7. 6 This report aims to: - provide an overview of existing information, research and data regarding the different bodies and organisations tasked with securing access to justice in cases of discrimination in the EU Member States covered in this study; - give an insight into the perspectives and experiences of a particular group of complainants on bringing cases of discrimination and into the perspectives of equality bodies, other similar bodies and intermediary bodies on access to justice in cases of discrimination; - identify issues in relation to access to justice concerned with the procedures used in discrimination cases, the support available to complainants in discrimination cases and aspects of access to justice that go beyond the individual case. 1.2 Organisation of the research project The research project was carried out by a consortium of two organisations: Human European Consultancy and the Ludwig Boltzmann Institute for Human Rights. The project had three main building blocks: - a literature review conducted for eight Member States and a selection of seven additional Member States; - fieldwork (interviews) in eight selected Member States; - a peer-review meeting in September 2011 with the whole research team, representatives of equality bodies, other stakeholders and the FRA to discuss preliminary findings and conclusions. The full team of researchers brought together by the two organisations consisted of a central research team and national research teams for the eight selected EU Member States. 7 4 UNGA (1993). 5 ECRI (1997). 6 ECRI (2002). 7 See page 1 for an overview of experts included in the project management team, the central research team and the national research teams. 10 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The eight selected Member States were Austria, Belgium, Bulgaria, the Czech Republic, Finland, France, Italy and the United Kingdom. These countries were chosen so as to include a geographical spread, a mix of old and new Member States and a range of different justice systems. The latter is important, since a diversity of access to justice systems shows a variety of equality bodies which are different in history, structure, scale and mandate. It includes equality bodies which have a predominantly tribunal function (= hearing and deciding individual instances of discrimination) and those which have a predominantly promotional function (= mix of promotional activities and providing assistance to individuals in instances of discrimination). 8 The central team was responsible for the design and guidance of the research at project level and for preparing the final research report. The national research teams were responsible in each of the eight selected Member States. The national research teams implemented the fieldwork and interviewed the respondents, consisting of the following four categories: - complainants - non-complainants - intermediaries - equality bodies. Before the research started, a briefing meeting was held with the national research teams of the eight selected Member States, introducing the objectives of the research, the key concepts, the relevant issues concerning the literature and the qualitative fieldwork. The briefing allowed the researchers to comment on draft questionnaires to be used for the interviews and the overall methodology of the research and ensured a coherent approach across the eight research teams. Two meetings were held with the FRA during the research: an inception meeting shortly after signing the contract and a progress meeting halfway through the project. An exchange on progress, concerns and other issues also took place on a weekly basis. 1.3 Aim and structure of the report The structure of the report is the following. Chapter 2 describes the main methodological issues relating to the report: the constitutive elements of the concept of access to justice used in this report, the terminology, the approach to the desk study and literature review, the approach to and set up of fieldwork and the peer review meeting. Chapter 3 describes the findings of the literature review and additional desk research. It first gives an overview of the access to 8 See Section 2.2 for a more detailed explanation of the differences between the two types of bodies. 11 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) justice systems in the eight selected Member States. It then provides information on the procedures in discrimination cases, the support available in discrimination cases, measures that are used in the Member States to enhance legal certainty and which strategies are followed to raise the awareness of rights. Chapters 4 to 7 describe in detail the findings of the fieldwork conducted in the eight countries, structured according to the same four main topics as Chapter 3 (access to a dispute resolution body in the systems of the eight countries, procedures and support in discrimination cases and legal certainty and awareness of rights). Each chapter first describes the experiences and views of complainants and subsequently the views on the subject expressed by representatives of equality bodies, administrative/judicial institutions and intermediaries. Chapter 4 describes findings regarding institutional structures and the paths available to complainants in the systems in the eight Member States and the issue of the geographical accessibility of dispute resolution bodies. Chapter 5 describes the findings with regard to four elements of access to justice in relation to procedures and includes fair proceedings, the timely resolution of cases, effective remedies and redress, and efficiency and effectiveness of procedures. Chapter 6 gives the findings on support in cases of discrimination with legal advice and assistance and emotional, personal and moral support, awareness of rights and accommodation of diversity. Chapter 7 includes the findings on legal certainty and the promotion of the culture of rights. Chapter 8 provides the conclusions and recommendations. A list of references and glossary are included at the end of the report. 12 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 2 METHODOLOGY 2.1 Constitutive elements of access to justice For the purpose of an earlier study on access to justice, the FRA developed a typology of „access to justice‟ that includes five constitutive elements. 9 The typology is based on the consideration of the right to a fair trial as well as the broader right to a remedy contained in Articles 6 and 13 of the European Convention on Human Rights (ECHR), Articles 2(3) and 14 of the International Covenant on Civil and Political Rights and Article 47 of the Charter of Fundamental Rights of the European Union. It encompasses a broad conception of judicial and non-judicial means of accessing justice. The five constitutive elements of this typology are: - the right to effective access to a dispute resolution body; - the right to fair proceedings; - the right to timely resolution of disputes; - the right to adequate redress; - conformity with the principles of efficiency and effectiveness. These five constitutive elements are, however, not sufficient to address access to justice in discrimination cases. Research and surveys such as the European Union Minorities and Discrimination Survey (EU-MIDIS) have demonstrated a diversity of factors that contribute to low levels of reporting in cases of discrimination. 10 Access to justice in cases of discrimination therefore also requires consideration of four additional elements: - access to information and confidence-building measures; - access to legal advice and assistance and to a range of emotional, moral and personal support; - initiatives to stimulate and support a culture of rights among the general population and in organisations; - initiatives to secure legal certainty in the interpretation of the provisions of equal treatment legislation. The central research team identified an additional element: accommodation of diversity of complainants in the policies, procedures and practices of the relevant institutions of the justice system. This relates to the following: equality requires a differentiated approach within human rights, while not undermining common provisions for all groups in international human rights law instruments. The accommodation of diversity in access to justice as an additional complementary subject for research in this present project reflects this 9 FRA (2011b), pp. 14-16. 10 FRA (2010a), EU-MIDIS, p.3. 13 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) approach. Access to justice can be examined in a manner that is relevant to all groups experiencing discrimination. Accommodating diversity is only explicitly mentioned in EU equal treatment legislation in Directive 2000/78/EC (Employment Directive) in relation to the ground of disability. 11 However, the further exploration of the practical implications of diversity for access to justice reveals the need for a broader approach to accommodating diversity in justice systems, which encompasses all grounds covered by equal treatment legislation. The grounds covered by the EU equal treatment legislation include gender, age, racial or ethnic origin, religion or belief, disability and sexual orientation. Each ground brings specific needs and experiences, and particular barriers may arise for each of these grounds. Access to justice strategies need to be tailored to address the specificities of each ground, while seeking to respond to the shared barriers that lead to under-reporting. If access to justice is to be achieved, diversity needs to be accommodated in: - exercising the right to effective access to a dispute resolution body, to fair proceedings, to timely resolution, to adequate redress and to securing conformity with the principles of efficiency and effectiveness; - information and awareness-raising activities and strategies targeting people experiencing discrimination; - the provision of, or support for the development of, legal and personal supports for those who allegedly suffered from discrimination; - initiatives to secure legal certainty in terms of clarity and predictability of the law and its interpretation; - awareness-raising activities and strategies among the general public and within organisations. Building on the approach developed by the FRA, while adding the above five elements, was deemed appropriate to reflect the findings of academic research and other studies. For the purposes of this study, therefore, the concept of „access to justice‟ includes ten elements which can be grouped under four different headings: a) Access to a dispute resolution body encompassing the first constituent element of the FRA typology. b) Procedures, encompassing the next four elements of the FRA typology. c) Access to support, including information and confidence-building for those who experience discrimination; legal advice and assistance and personal, emotional and moral support; accommodation of diversity. d) Measures beyond the individual case to secure legal certainty and to stimulate and support a culture of rights among the general population and within organisations. 11 Council Directive 2000/78/EC, OJ 2000 L 303, p. 16. 14 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The research examines these ten elements of access to justice. It seeks to explore barriers and enablers for those who experience discrimination not only to start a procedure but to be able to make effective use of procedures in a way that secures access to justice. This is done in relation to each of the ten elements. 2.2 Terminology For a better understanding of this report some key terms need to be explained. Specific definitions are included in the glossary at the end of the report. At the centre of this research are the people who experienced discrimination and decided to take action – the complainants. Complainants in this report are the people who lodged, successfully or not, a complaint about discrimination with an equality body, court or administrative / judicial institution. Non- complainants are people who experienced discrimination, but did not lodge a complaint about their discrimination experience with an equality body, court or administrative / judicial institution. In this report four types of relevant actors in the systems to access justice are distinguished: - equality bodies; - courts; - entities similar to equality bodies – in short “similar entities”; - intermediaries. The institutions or people at whom the complaint is directed, and who are (allegedly) the perpetrator(s) of the discrimination which is the subject of the complaint, are the defendants in the procedures before an equality body, court or administrative / judicial institution. Equality bodies can be divided into two types: predominantly tribunal-type and predominantly promotion-type. Both are established by statute under equal treatment legislation. Promotion-type equality bodies spend the bulk of their time and resources on a broad range of activities that encompass supporting good practice in organisations, raising awareness of rights, developing a knowledge base related to equality and non-discrimination and providing legal advice and assistance to individual victims of discrimination. Tribunal-type equality bodies, on the other hand, spend the majority of their time and resources hearing, investigating and deciding on individual cases of discrimination brought before them. Courts are state institutions with the authority to adjudicate legal disputes between parties and to give binding enforceable decisions. Courts can be first instance, appellate or supreme courts. http://en.wikipedia.org/wiki/Institution http://en.wikipedia.org/wiki/Authority http://en.wikipedia.org/wiki/Adjudication http://en.wikipedia.org/wiki/Legal_dispute http://en.wikipedia.org/wiki/Party_(law) 15 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) “Similar entities” are for the purpose of this report administrative / judicial institutions which deal with cases of discrimination. They can be approached by complainants and can bring a case to a formal conclusion. These “similar entities” include national human rights institutions, ombudsmen, labour inspectorates and specialised tribunals. In bringing discrimination cases to a conclusion these institutions function as “similar entities” to predominantly tribunal-type equality bodies. Predominantly tribunal-type equality bodies could fall within this category but, for the purpose of this research, they are dealt with as a separate category. Intermediaries are public institutions, non-governmental organisations (NGOs) or individuals who function as links between the complainant and the institutions through which they seek to secure justice. They play roles in providing information on rights and how to make a claim, providing legal advice and assistance and personal support to complaints, securing legal certainty and building a positive attitude to the right to equality and non-discrimination. Potential intermediaries include NGOs, victim support organisations, trade unions and lawyers and other professionals, such as, for example, mediators. 2.3 The constitutive elements of access to justice The ten constitutive elements of access to justice in discrimination cases, grouped under the four headings mentioned above, are defined by the central research team as follows. a) Access to a dispute resolution body Access to a dispute resolution body is effective access to judicial and non- judicial means of obtaining redress for instances of discrimination. It requires an institutional infrastructure that can be accessed by individual complainants in cases of discrimination. This is the first element of access to justice in cases of discrimination. b) Procedures These are legal and non-legal processes in a court, predominantly tribunal- type equality body or administrative / judicial institution during which cases are lodged, parties are informed, evidence is presented and facts are determined. Elements 2, 3, 4 and 5 are the following. - Fair proceedings, which includes the principle of equality of arms, sharing of the burden of proof and allowing for appeal against decisions made. - Timely resolution of disputes, which means that disputes are tackled and solved within an adequate and appropriate period of time. - Effective remedy or redress, which means that the situation of the complainant(s) is changed for the better or the damage is compensated 16 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) for in a way which is proportional to the level of damage done and the outcome is satisfactory from the perspective of the victim (see the glossary under „adequate redress‟). - Efficiency and effectiveness, defined by the Committee of Ministers of the Council of Europe as, “The delivery of quality decisions within a reasonable time following a fair consideration of issues”. Moreover, in the same recommendation the Committee stated that: “The efficiency of judges and of judicial systems is a necessary condition for the protection of every person‟s rights, compliance with the requirements of Article 6 [right to fair trial] of the [European] Convention [on Human Rights], legal certainty and public confidence in the rule of law.” This thereby clearly identifies efficiency as a component of fair trial. c) Support in cases of discrimination The key elements under this heading, numbered 6, 7 and 8, are the following. - Support which includes legal and personal support. o Legal advice and assistance. Legal advice and assistance is defined as support to complainants in bringing a case. It includes legal advice services as well as support in the form of representation and securing access to court and / or tribunal systems. o Legal aid is a means to enable access to legal advice and assistance and is therefore an indicator of barriers in this area rather than the actual element. Legal aid is defined as financial means / resources made available to support victims in covering the economic costs of seeking access to justice (for example, costs of pre-legal advice, representation in court / lawyers‟ fees, as well as the cost of the legal proceedings themselves). o Personal, emotional and moral support. This is support designed and provided to motivate and encourage the complainant to sustain engagement in the process and to minimise experiences of isolation and loss of relationships. - Awareness of rights encompasses knowledge about the existence of rights, about the availability of mechanisms and institutions for the protection or vindication of rights, as well as about how to use these mechanisms and institutions for seeking redress for rights violations. - Accommodation of diversity covers adjustments made in response to differences between complainants and their different needs in terms of support in relation to factors such as language, physical impairment or disability, financial resources, age, religious, cultural, ethnic, social, political and educational backgrounds, gender, sex and/or sexual orientation. These specific needs arise from the specific experience (relationship of people with the majority population and the institutions of society), situation (people‟s economic, political and social status) and 17 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) identity (the norms and values held that shape people‟s attitudes and behaviours) of groups which experience inequality d) Access to justice beyond the individual case Elements 9 and 10 are the following. - Legal certainty, which encompasses clarity and predictability of the law and the absence of gaps in the interpretation of the law. - Culture of rights which exists within the general population such that people are aware of discrimination and inequality and are supportive of equality, the case for a more equal society, diversity and the different groups which make up society, rights and the importance of people exercising rights, equality legislation and the institutions established to implement this legislation. 2.4 Literature review In the eight selected countries, the literature review was carried out by the national research teams and based on available background materials. The literature reviews by the national experts consist of literature findings relevant in analysing access to justice in cases of discrimination in the national context and include a wide range of sources 12 : - surveys and research data on, for example, under-reporting, on the specific needs of particular groups in relation to access to justice and on the experiences of complainants with access to justice in cases of discrimination; - official, semi-official and unofficial data and information; - reports (including shadow reports) by NGOs, equality bodies, ministries of justice, NHRIs and ombudsmen offices; - academic literature; - judgments under Article 6 of the ECHR. On the basis of the outcomes of the literature review by the research team and national research teams, a background report was produced. The background report contains sections on systems of access to justice in the eight selected EU Member States as well as on findings under the three other headings: procedures, support and legal certainty and awareness of rights. The background report is mainly based on information provided by national experts on the existing literature in the eight selected Member States. Furthermore, the access to justice systems served as models for the presentation of different types of access to a dispute resolution body in discrimination cases (key element 1) in Chapter 2. For the presentation of access to justice in relation to the other elements, literature was reviewed 12 See List of References for full list of sources and bibliographic references. 18 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) regarding the jurisdictions of other EU Member States (Estonia, Greece, Latvia, the Netherlands, Poland, Portugal and Sweden). The choice of the examples from additional Member States included in the background report was determined by the availability of literature and reports on key issues for this research project, such as the level of rights knowledge and knowledge of institutions, the level of trust in systems and procedures available, the structure of the system of access to justice in discrimination cases and the adequacy of procedures for providing access to a diverse clientele. The background report addresses: - how each Member State implemented the obligation under the EU equality legislation to designate specialised bodies in the fields covered by the equality legislation; - relevant findings from social research and related sources on the theme of access to justice since 2003; - specific findings from research on different entities which can receive complaints, including an overview of the main differences and similarities between equality bodies and other similar entities; - evidence concerning obstacles and good practices regarding access to justice in discrimination cases; - an overview and analysis of the procedures in place for accessing equality bodies and similar entities. The literature review was used to gain an overview of the structure of the systems of access to justice in discrimination cases as well as to identify the main obstacles and factors facilitating access to justice in discrimination cases. The literature review resulted in 20 hypotheses in relation to the ten key elements of the concept of access to justice, which were then verified against the findings of the fieldwork. The hypotheses are presented at the end of Chapter 3, which describes the findings of the literature review. 2.5 Fieldwork and processing of the data 2.5.1 Organisation of the fieldwork The fieldwork consisted of face-to-face and telephone interviews with four groups of respondents: complainants, non-complainants, intermediaries and representatives of equality bodies, based on the four different questionnaires. The fieldwork was carried out between March and September 2011 in the eight countries selected for this research. The objective of the interviews was to give an insight into the perspectives and experiences of complainants in bringing cases of discrimination and into the 19 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) perspectives of equality bodies, other similar bodies and intermediary bodies on access to justice in cases of discrimination. The development of the four questionnaires was carried out by the central research team in consultation with the FRA. The questionnaires included open and closed questions. In each Member State 46 interviews were held, with the exception of Austria (48) and the Czech Republic (47), bringing the total number of interviews to 371: - 213 interviews with complainants; - 28 interviews with non-complainants. Non-complainants either reported discrimination, but decided not to lodge a complaint, or lodged a formal complaint, but withdrew the complaint at some point during the procedure; - 95 interviews with intermediaries (lawyers, representatives of NGOs and other professionals); - 35 interviews with representatives of equality bodies or similar entities (with equal distribution between bodies if more than one) were conducted by the national research teams in the eight selected Member States. 2.5.2 Processing the information Transcripts of the interviews were written in English. A template was provided for the transcripts, based on the questionnaires for each group of respondents. This ensured coherence and consistency in the transcripts and facilitated processing the information from the interviews. The interviews were conducted in the national language. The questionnaires for the four groups of respondents were translated into each of the national languages for this purpose. Outside the United Kingdom three interviews were conducted in English (in Belgium and Finland). Two interviews were conducted in sign language (in Austria and the United Kingdom). 13 Each national research team conducted between five and ten interviews and submitted the transcripts of these interviews to the central research team for a quality check and feedback. Based on the feedback from this check, the transcripts were improved and interviewers had the opportunity of utilising the feedback for further interviews. During this process of feedback, questions and terminology were identified that required further clarification. Such clarification was sent to all research teams twice. In order to ensure a common understanding of concepts, a glossary was 13 Interviews in the United Kingdom included interviews in England, Wales, Scotland and Northern Ireland. 20 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) produced before the interviews started, in which some difficult and abstract subjects such as accommodation of diversity and culture of rights were defined. The glossary was further used throughout the research project and is included in the Annex. The data from the transcripts for each of the four groups of respondents were processed as follows. - The quantitative data were entered and processed through the statistics program, Statistical Package for the Social Sciences (SPSS). - The answers to the open questions were categorised with a view to addressing some of the research gaps identified by the background report. The assessment of the interviews does not aim to provide an in-depth analysis of the eight national contexts, but rather tries to trace the various routes of access to justice and how the complainants perceive and assess these different routes in terms of access to the system, different kinds of support available, procedures and outcomes in relation to the expectations of and goals set by the respondents. 2.5.3 The sample The sample for the fieldwork is not representative of the whole population of complainants in cases of discrimination in the eight selected EU Member States. The majority of complainants interviewed for this report were identified as complainants because they brought a claim under equal treatment legislation. Only a small number of people were interviewed who did not lodge a complaint (28 out of 241, see above). The group of complainants interviewed is not representative of all people who have experienced discrimination, since research shows that many people who experience discrimination do not lodge a complaint (see Section 2.1). Moreover, the composition of the group of complainants was atypical: 42% of the complainants and non-complainants were approached and interviewed after being named as potential respondents by equality bodies. Hence the selection of respondents resulted in a specific sample, in which people who experienced discrimination and lodged a complaint with or via an equality body are over- represented. The samples of the groups of representatives of equality bodies and intermediaries are also not representative of the whole population of equality bodies and intermediaries. In the group of representatives of equality bodies not all the equality bodies which operate in each of the eight Member States could be interviewed, for 21 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) reasons of time and resources. This applies to the United Kingdom, where the equality bodies in Scotland and Wales were not interviewed, and to Austria, Belgium and Italy, where not all regional offices and equality body structures could be interviewed. In addition, only a small number of representatives of each equality body was interviewed in comparison to the overall number of staff. Furthermore, representatives were asked for their own views and experience rather than for the overall views and experience of the equality body. Finally, in Austria, Belgium, Finland and Italy, interviews were not only conducted with representatives of equality bodies but also with representatives of judicial / administrative institutions, which further adds to the diversity and non- representative nature of the sample. The group of intermediaries, like the group of complainants, consisted of an atypical selection. They were selected mainly after being named by representatives of equality bodies, by complainants or through the national researchers‟ own professional network. Furthermore, their numbers per category of intermediaries were small. The largest group among the intermediaries interviewed were lawyers and lawyers specialised in equal treatment law, followed by NGOs and victim support organisations. Lawyers (specialised or not) and representatives of NGOs were interviewed in all eight Member States. Victim support organisations were not interviewed in Austria, Bulgaria and Italy. Representatives of trade unions were among the respondents in Finland, Italy and the United Kingdom. In Austria representatives of the Chamber of Labour (Kammer für Arbeiter und Angestellte), which is a social partner organisation, were interviewed as intermediaries. However, the non-representative nature of the various groups of respondents was anticipated and was in conformity with one of the main aims of this research project, which is to gain insight into the obstacles and incentives for complainants in pursuing their complaints and gaining access to justice through equality bodies or similar entities in discrimination cases. Apart from the fact that the sample of respondents in the group of complainants is not representative of the whole population of complainants and in addition to the specific manner of selecting respondents, the selection of respondents has the following atypical features: - Sixty per cent of the interviews were conducted in the capitals of the respective Member States; the use of telephone interviews (105, compared with 261 face-to-face interviews, and five interviews using a combination of both techniques) made it possible to interview complainants living at a distance from the institution where the complaint was lodged. - More than 60% of the complainants and non-complainants were women. 22 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Sixty per cent of the complainants and non-complainants were highly educated (tertiary education). - All grounds but not all fields of discrimination were covered in all eight Member States (see graphs in Chapter 3). It is important to read the results of the fieldwork in relation to the experiences and perceptions of complainants, bearing in mind the particular nature of the sample interviewed. In the presentation of the findings of the fieldwork in Chapters 4-7 no conclusions are drawn regarding statistical significance. This is due to the above-mentioned fact that the sample is not representative of the various groups of respondents in the eight Member States. With regard to the group of complainants, it is also due to the fact that the complainants interviewed display a number of atypical features as mentioned above. There are quite a number of variables which have to be taken into account simultaneously when analysing the data of the fieldwork concerning complainants, which in turn results in rather small numbers of cases in each of the categories by which the sample was broken down. Because the sample is not representative for the group of complainants, the other a-typical features listed above and the small numbers of respondents per group this report refrains from drawing any conclusions on statistical significances throughout the report. 2.6 Peer review meeting On 26 September 2011 the results from the literature research synthesised in the background report and the preliminary findings and conclusions emerging from the literature review and fieldwork were presented to a meeting consisting of the national research teams, representatives of equality bodies and intermediaries in the eight countries selected for research, as well as representatives from the FRA. The background report and a summary of the initial findings were sent to the participants before the meeting. The meeting provided the central research team with feedback on the facts as presented in the background report regarding access to a dispute resolution body, the procedures, support and legal certainty and building a culture of rights. The meeting also served to provide feedback on the preliminary conclusions drawn by the central research team and the draft recommendations for main stakeholders that the central research team formulated and presented at the meeting. 23 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 3 FINDINGS OF THE DESK STUDY AND LITERATURE REVIEW 3.1 The justice systems in cases of discrimination The EU directives on equal treatment and non-discrimination require Member States to ensure the availability of judicial and / or administrative procedures to people who consider themselves victims of discrimination within the scope of the directives. The vast majority of Member States have chosen to combine judicial with non-judicial procedures. Moreover, judicial procedures may be civil, labour, administrative or criminal procedures and may include mediation or other conciliation procedures. 14 The justice systems in cases of discrimination in the eight selected countries can be divided into three main approaches to facilitate comparison. 15 - Type 1 – specialised tribunal-type equality bodies and courts. Systems of this first type provide two ways of obtaining a decision in cases of discrimination. The advantage of tribunal-type equality bodies over courts is that their procedures are „low threshold‟: less costly, less complex procedures and more specialised in cases of discrimination than the courts. On the other hand, tribunal-type equality bodies and “similar entities” may be limited in imposing sanctions or awarding compensation. In addition, decisions may need to be referred to a court of law to be legally binding. - Type 2 – promotion-type and tribunal-type equality bodies and courts. These systems offer the same two paths set out above. However, these two paths are supplemented by the promotion-type of equality body, which provides assistance to victims of discrimination in accessing the justice system, promotes rights awareness among potential complainants and contributes to a culture of rights in society. - Type 3 – promotion-type equality bodies and courts. These systems do not offer complainants a choice of path for obtaining a decision regarding their discriminatory treatment. In these systems a victim can only obtain a decision through the courts. In describing the system for each Member State a model diagram is used which gives a schematic picture of the different paths available for access to justice. This facilitates comparison of the different systems. The diagram shows the variety of structures and procedures available. 14 European Commission (2010), p. 64. 15 These distinctions are derived from: Ammer, M. et al. (2010), p. 63. 24 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The main reference point is the route a complainant has to take through the justice system, but the diagrams also show the role of intermediaries, promotion-type equality bodies or other entities involved. It should be noted that in most systems equality bodies or other “similar entities” do provide for various means of alternative dispute resolution (ADR). Obviously, neither the diagrams nor the description can cover all available routes in a national context. The overview has a clear focus on the role of equality bodies and it does not cover the structures and procedures at the provincial / regional or municipal level. In addition to the description of the justice system, a short overview is provided of the main equal treatment legislation and specialised bodies in place in the eight Member States. The competences of these bodies and the procedures to lodge and pursue claims of discrimination are set out. 3.1.1 Type 1 – tribunal-type equality bodies and courts – Bulgaria 25 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) In Bulgaria EU Directives 2000/43/EC, 2000/78/EC and 2004/113/EC have been transposed by means of a single legal act, the Protection against Discrimination Act (PADA) (Закон за защита от дискриминация) of 2004 and the creation of the Protection against Discrimination Commission (PADC) (Комисия за защита от дискриминация) (tribunal-type equality body) in 2005. 16 Whether all elements of Directive 2006/54/EC have been fully transposed into Bulgarian law is disputed by experts. 17 The law covers gender, ethnic origin, religion or belief, age, sexual orientation, disability, nationality, genetic characteristics, education, political affiliation, personal or public status, family status, property status and any other ground protected by law or international treaties. The scope of this protection covers all areas for which protection is envisaged by the EU equal treatment directives and is explicitly stated to apply to any field. The PADC has a mandate to hear and investigate complaints by victims of discrimination and communications by third parties, to initiate its own proceedings, to issue legally binding decisions, to issue mandatory instructions for remedial or preventative redress, to make recommendations to public authorities, including for legislative change, to assist victims of discrimination, to carry out independent research and to publish independent reports. 18 16 Protection Against Discrimination Act (Закон за защита от дискриминация),January 2004, last amended, SG, No. 68 of 22 August 2006. 17 European Commission (2009c), p 17. 18 European Commission (2010), p 76. 26 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The PADC initiates proceedings when a complaint is filed. In cases which are admissible it begins fact-finding procedures and, after a public hearing, decides on the merits of the case. The awarding of compensation is limited to the courts which, on the basis of a decision finding the existence of discrimination, can also, like the PADC, order the termination of the discriminatory action, the taking of remedial action and a commitment to refrain from future action or inaction. Courts can also be approached after having obtained a PADC decision in order to claim compensation. 3.1.2 Type 2 – promotion-type and tribunal-type equality bodies and courts – Austria and Finland Austria The Equal Treatment Act (ETA) (Gleichbehandlungsgesetz), 19 as well as the system of equality bodies regulated by a separate act, 20 the Ombud for Equal Treatment (OET) (Gleichbehandlungsanwaltschaft) (promotion-type equality body) and the Equal Treatment Commission (ETC) (Gleichbehandlungskommission) (tribunal-type equality body) are structured on the basis of a distinction of grounds and sectors: 19 Austria, Equal Treatment Act (Gleichbehandlungsgesetz), BGBl I 66/2004, last amended BGBl I 7/2011. 20 Austria, Federal Act on the Equal Treatment Commission and the Ombud for Equal Treatment (Bundesgesetz über die Gleichbehandlungskommission und die Gleichbehandlungsanwaltschaft - GBK/GAW-Gesetz), BGBl. Nr. 108/1979, last amended BGBl. I Nr. 7/2011. 27 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) a) Issues of equal treatment for men and women in the labour market. b) Issues of equal treatment on the grounds of ethnic origin, religion or belief, sexual orientation or age in the labour market. c) Issues of equal treatment in other fields beyond the labour market on grounds of gender or ethnic origin. Protection against discrimination for all six grounds as well as multiple discrimination is provided for in the area of employment. A wider scope of protection against discrimination in access to goods and services is provided for the grounds of ethnic origin, gender and disability. Further protection against discrimination in the fields of education, health and social protection is restricted to discrimination on grounds of ethnic origin. In most instances complainants have two choices. They can bring their case before the ETC, which can issue a legally non-binding decision (Prüfungsergebnis) on whether or not the treatment in question was discriminatory. The other route is to go to the competent civil court or labour and social welfare court (Arbeits- und Sozialgericht) and claim damages. Victims of sexual harassment can take the perpetrator to a criminal court. 21 Complainants can obtain assistance from the OET as well as from NGOs and the Chamber of Labour (in employment cases only). In cases of discrimination on the ground of disability, the social welfare agency (Federal Social Office - Bundessozialamt) must be contacted prior to filing a claim at court. This body is obliged to initiate a settlement procedure, which must be attempted before a claim can be filed in court. 22 Finland 21 Austria, Penal Code (Strafgesetzbuch), Article 218. 22 Austria, Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz), BGBl. I Nr. 82/2005, last amended BGBl I 7/2011. 28 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) In Finland, the Racial Equality Directive 2000/43/EC and the Employment Equality Directive 2000/78/EC were transposed through the adoption of one new act, the Non-Discrimination Act (Yhdenvertaisuuslaki) (21/2004). 23 The Act provides that discrimination is prohibited on the basis of age, ethnic or national origin, nationality, language, religion, belief, opinion, health, disability, sexual orientation or other personal characteristics. The prohibition of discrimination based on gender is covered by the provisions of the Act on Equality between Women and Men (Laki naisten ja miesten välisestä tasa-arvosta). 24 The scope of protection for all grounds includes employment (access to self- employment and occupation, conditions for access to employment, employment and working conditions and vocational guidance), education (access to education, all types of vocational training and retraining), and membership of and involvement in an organisation of workers or employers. Discrimination on grounds of ethnic origin is also unlawful in the fields of health and social services, social benefits and advantages, military or civilian service, including voluntary military service for women, and provision of housing and other supply of services and goods available to the public. Discrimination on grounds of gender is prohibited in all areas of life, the only exceptions being relationships in private life and religious practices. 23 Finland, Non-Discrimination Act (Yhdenvertaisuuslaki),2004/21 1 February 2004. 24 Finland, Act on Equality between Women and Men (Laki naisten ja miesten välisestä tasa- arvosta) 1986/609, 8 August 1986. 29 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The Ombudsman for Equality (Tasa-arvovaltuutettu) (promotion-type equality body) supervises compliance with the principle of non-discrimination on the grounds of gender. It is competent to provide advice and assistance to victims of discrimination on grounds of gender. Its field of competence includes counselling, investigations in relation to specific cases (collecting data, asking for clarification and carrying out inspections in the workplace). Furthermore, the Ombudsman for Equality can take the case to the Equality Board (tasa- arvolautakunta), which can prohibit anyone from continuing or repeating the discriminatory practice. The Board may also impose the threat of a penalty on the party to whom the prohibition applies. The Ombudsman for Minorities (Vähemmistövaltuutettu) (promotion-type equality body) can be asked for assistance in cases of discrimination on grounds of ethnicity and is empowered to issue guidance and advice in order to stop discrimination, to take measures to achieve reconciliation and to request for clarifications of the matter from the suspected perpetrator. Furthermore, in the event of non-fulfilment of the request to impose a penalty payment, the Ombudsman can take the case to the National Discrimination Tribunal (Syrjintälautakunta) (tribunal-type equality body). The National Discrimination Tribunal is entitled to hear a case on grounds of ethnicity, to confirm settlements between parties, to prohibit further discriminatory action and to impose conditional fines. Individuals may also take cases to the National Discrimination Tribunal themselves. The most significant difference regarding the powers of the Ombudsman for Minorities and the Ombudsman for Equality is that the latter also covers discrimination in working life. Both Ombudsmen are allowed to assist a person who has been subjected to discrimination in judicial proceedings, if the matter is considered to be of considerable importance. The Office of the Ombudsman for Minorities has rarely used this option and the Office of the Ombudsman for Equality has never used it. NGOs do not play a notable role in judicial or administrative processes, but trade unions are important actors in the field of employment discrimination. Cases of discrimination on all grounds protected by law in the fields of occupation and employment can be referred to the regional Occupational Safety and Health Authorities (Aluehallintovirastojen työsuojelusvastuualueet) . Following a preliminary investigation, if the case is deemed as violating the prohibition of work-based discrimination provided in the Criminal Code (Rikoslaki), they can forward the case to the public prosecutor for consideration of charges or to the police for investigation. Furthermore, they may inform the complainant about the possibility of filing a claim with the courts in order to claim compensation on grounds of the Non-Discrimination Act. 30 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 3.1.3 Type 3 – promotion-type equality bodies and courts – Belgium, the Czech Republic, France, Italy and the UK Belgium In Belgium, EU Directive 2000/78/EC has been transposed at the federal level by the Anti-Discrimination Act (Loi tendant à lutter contre certaines formes de discrimination; Wet van 10 mei 2007 ter bestrijding van bepaalde vormen van discriminatie) , 25 covering age, sexual orientation, civil status, birth, wealth, religion or belief, political conviction, trade union membership or affiliation, language, actual or future state of health, disability, physical or genetic characteristic and social origin. EU Directive 2000/43/EC has been implemented by means of the Anti-Racism Act (La loi du 30 juillet 1981 tendant à réprimer certains actes inspirés par le racisme et la xénophobie ; Wet tot bestraffing van bepaalde door racisme of xenofobie ingegeven daden). 26 EU 25 Belgium, Act of 10 May 2007 aimed at combating particular forms of discrimination (Loi tendant à lutter contre certaines formes de discrimination; Wet van 10 mei 2007 ter bestrijding van bepaalde vormen van discriminatie), Belgian Official Journal (Moniteur belge) (30 May 2007. Last amendment: Act of 6 June 2010 Belgian Official Journal (Moniteur belge) (1 July 2010). 26 Belgium, Act of 10 May 2007 aimed at combating particular forms of racism and xenophobia (La loi du 30 juillet 1981 tendant à réprimer certains actes inspirés par le racisme et la xénophobie (modifiée par la Loi du 10 mai 2007, MB 30 V 07); Wet tot bestraffing van bepaalde 31 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Directives 2004/113/EC and 2006/54/EC were transposed by means of the Gender Act (Loi tendant à lutter contre la discriminination entre les femmes et les homes; Wet ter bestrijding van discriminatie tussen vrouwen en mannen), covering sex, including transgenderism and transsexualism. 27 A wide range of largely corresponding legislation is in force at the level of the Communities and the Regions, which have their own legislative competences due to the federal structure of the country. Legislation provides for protection in the fields of labour and goods and services, but also economic, social, cultural or political activities. There are two key institutions (promotion-type equality bodies) in place at federal level, the Centre for Equal Opportunities and Opposition to Racism (CEOOR) (Centre pour l‟Égalité des Chances et la Lutte contre le Racisme; Centrum voor Gelijkheid van Kansen en voor Racisme Bestrijding) with competence for all the grounds referred to in the Anti-Discrimination Act except sex and language, and the Institute for the Equality of Women and Men (IEWM) (Institut pour l‟Égalité des Femmes et des Hommes; Instituut voor de Gelijkheid van Vrouwen en Mannen) with competence for the ground of sex. Furthermore, in the Flemish Community a system of local complaints offices is in place at the municipal level, which provides initial legal advice. Similar structures are planned for the Walloon region. Both the CEOOR and the IEWM act as the first point of reference for complainants in discrimination cases. If the respective institution deems itself to be competent in the case, an examination procedure is initiated and, together with the complainant, a decision is made about how to deal with the case. In order to establish the facts of a case, the CEOOR may rely on the investigative powers of other authorities, such as the federal and regional labour inspectorates. Actions can include negotiation / conciliation or a transferral of the case to the competent court. The Czech Republic door racisme of xenofobie ingegeven daden), Belgian Official Journal (Moniteur belge) (30 May 2007. Last amendment: Act of 6 June 2010, Belgian Official Journal (Moniteur belge) (1 July 2010). 27 Belgium, Act of 10 May 2007 aimed at combating discrimination between women and men (Loi tendant à lutter contre la discriminination entre les femmes et les homes; Wet ter bestrijding van discriminatie tussen vrouwen en mannen), Belgian Official Journal (Moniteur belge) (30 May 2007). Last amendment: Act of 6 June 2010, Belgian Official Journal (Moniteur belge) (1 July 2010). 32 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) In the Czech Republic, the EU Directives 2000/43/EC, 2000/78/EC, 2004/113/EC and 2006/54/EC were transposed by the Anti-discrimination Law of 2009. 28 The law provides for protection against discrimination on grounds of gender, race, ethnicity and nationality, religion, belief and opinions, age, sexual orientation and disability. The scope of protection encompasses access to employment, employment and working conditions, dismissals and pay in both the public and private sectors. It covers labour relations, membership and involvement in an organisation of workers or employers, self-employment, vocational training and education at all levels, access to health, housing, social security, social advantages and access to goods and services. The Public Defender of Rights (Veřejný ochránce práv) is assigned the role of the Czech equality body (promotion-type equality body). Its tasks include providing assistance to victims of discrimination, conducting research and the publication of reports and recommendations. Protection is provided by the Public Defender of Rights in relation to discrimination on grounds of gender, ethnic origin, religion and belief, age, sexual orientation, disability and nationality. Specific provisions for protection against discrimination in the workplace are laid down in the 2004 Law on Employment 29 and in the 2005 Law on Labour Inspection. 30 The Law on Employment defines the role of the labour 28 Czech Republic, Law no. 198/2009 Coll. (Official collection of laws) Anti-discrimination Act. 29 Czech Republic, Law no. 435/2004 Coll. Law on Employment 30 Czech Republic, Law no. 251/2005 Coll. Law on Labour Inspection. 33 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) offices, which are competent to investigate cases of discrimination preceding the conclusion of a labour contract. The Public Defender of Rights can provide mediation where appropriate and can investigate directly in cases where the possible involvement of public bodies is presumed. Discrimination complaints in the area of employment are investigated by labour inspectorates, which initiate administrative proceedings and can impose sanctions (no compensation for victims). Victims of discrimination can complain to the labour inspectorates and as such stimulate the initiation of proceedings, but they have no rights other than being informed of whether or not discrimination was established. In order to gain redress and compensation, victims of discrimination must approach the courts, where they can be represented by NGOs and trade unions. 31 France In France, the EU equal treatment directives have been transposed in stages and not only by means of specific non-discrimination legislation. Directives 2000/43/EC and 2000/78/EC were transposed through non-discrimination legislation in 2001, 2004 and finally 2008, but also in legislation modernising 31 Czech Republic, Law no. 99/1963 Coll., Civil Procedure Code, Section 26, para 1 and 3. 34 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) social law in 2002 and 2005. 32 Directives 2004/113/EC and 2006/54/EC were transposed by the Anti-Discrimination Act of 2008 (Loi portant diverses dispositions d'adaptation au droit communautaire dans le domaine de la lutte contre les discriminations), completing the transposition of all relevant non- discrimination Directives, including the missing elements in previous transpositions. 33 Protection against discrimination is provided on the grounds of age, gender, origin, family/marital status, way of life, genetic characteristics, actual or assumed, belonging to an ethnic group, nation or race, physical appearance, disability, health condition, pregnancy, surname, political opinion, religious beliefs and trade union activity. Fields of protection include access to goods and services (including housing and healthcare) and the employment sector. 34 There is an extended material scope covering social protection, social advantages, education, access to health services, and goods and services, which applies only to the grounds of ethnic origin and race. An institution with competence for all these areas and grounds of discrimination was established by law as an independent statutory authority in 2004. 35 The former Equal Opportunities and Anti-Discrimination Commission (Haute Autorité de Lutte contre les Discriminations et pour l‟Egalité, HALDE), which from 1 May 2011 was incorporated into the institution of the Defender of Rights (Défenseur des droits) (promotion-type equality body), was assigned with a mandate to combat all forms of discrimination and to promote equality. A 2006 law on equal opportunities added a power to propose to the perpetrator of a discriminatory action which is punishable under the Criminal Code (Code pénal), that they pay a fine to indemnify the victim. Both the perpetrator and victim have to agree on the fine, which must be approved by the public prosecutor‟s office. 36 All public prosecutor‟s offices also have non-discrimination departments with a deputy prosecutor in charge of enforcing the state‟s criminal policy in discrimination cases and a delegated representative of the state prosecutor in charge of processing discrimination complaints. 32 France, Law 2001-1066 of 16 November 2001 (Loi n° 2001-1066 du 16 novembre 2001); Law 2004-1486 of 30 December 2004 (Loi n° 2004-1486 du 30 décembre 2004); Law 2005-102 of 11 February 2005 (Loi n° 2005-102 du 11 février 2005). 33 France, Law 2008-496 of 27 May 2008 (Loi n° 2008-496 du 27 mai 2008 portant diverses dispositions d'adaptation au droit communautaire dans le domaine de la lutte contre les discriminations); see also European Commission (2009c),p 34. 34 France Criminal Code (Code pénal), Article 225. 35 See above, Law 2004-1486 of 30 December 2004 on the creation of the Equal Opportunities and Anti-Discrimination Commission (consolidated) (Loi N° 2004-1486 du 30 décembre 2004 portant création de la Haute Autorité de Lutte contre les Discriminations et pour l‟Egalité (Consolidée)). 36 France, Law 2006-396 of 31 March 2006 on equal opportunities (Loi n° 2006-396 du 31 mars 2006 pour l‟égalité des chances), Article 41. http://halde-v3-prod.gaya.fr/Loi-no-2001-1066-du-16-novembre.html http://halde-v3-prod.gaya.fr/Loi-no-2004-1486-du-30-decembre.html http://halde-v3-prod.gaya.fr/Loi-no-2005-102-du-11-fevrier-2005.html http://halde-v3-prod.gaya.fr/Loi-no-2008-496-du-27-mai-2008.html http://halde-v3-prod.gaya.fr/Loi-no-2008-496-du-27-mai-2008.html http://halde-v3-prod.gaya.fr/Loi-no-2008-496-du-27-mai-2008.html 35 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Victims of discrimination can now choose either to file their complaint with the Defender of Rights, with the option of mediation or of seeking its assistance in further proceedings, or they can file their claim directly with the court. The Defender of Rights provides advice on legal options and helps to establish evidence (including by means of situation testing). It can make use of investigative powers, which include hearing any people it deems necessary, visiting places it deems necessary, demanding documents, and taking evidence from witnesses. If requests for information are not complied with, the Defender of Rights may issue a formal order to reply within a set time. In the event of non- fulfilment, its Chair can refer the case to the interlocutory judge who can order investigatory measures. The Defender of Rights assists in making the choice of the most appropriate procedural option. This can include mediation by the institution itself in order to reach a settlement agreement. In criminal cases, it can refer the case to the public prosecutor for a decision if the Defender of Rights has established a case of discrimination under the Criminal Code. In cases initiated by parties before a civil or administrative court, the Defender of Rights can present its legal analysis to the competent court. In addition, it may present observations at the request of the judge or of one of the parties. It may ask the court to be heard as an expert institution, which does not make it a party to the lawsuit but can be interpreted as an amicus curiae role. With respect to claims that are not subject to legal proceedings, the Defender of Rights can make recommendations to (alleged) perpetrators of discrimination to modify its practice or to indemnify complainants. If its recommendation is not followed, it can publish a special report in order to publicise is decision and the fact that it has not been enforced. Italy 36 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) In Italy, the main reference legislation in the field of non-discrimination is Legislative Decree 37 no. 215/2003 (Decreto Legislativo n. 215 del 9 luglio 2003), implementing Directive 2000/43/EC, and no. 216/2003 (Decreto Legislativo n. 216 del 9 luglio 2003), implementing Directive 2000/78/EC. These decrees provide protection against discrimination on grounds of gender, ethnic origin, sexual orientation, religion and belief, age and disability. The scope of application is as required under the equal treatment directives. Directive 2004/113/EC has been implemented by Decree no. 196/2007, which adds ten articles to the Code of Equal Opportunities (Codice delle Pari Opportunità). 38 Directive 2006/54/EC has been transposed by Legislative Decree 5/2010 (Decreto legislativo n. 5 del 25 gennaio 2010). Institutional assistance is provided for the grounds of gender and ethnic origin/race. Equality Counsellors (Consigliere/i di parità) at provincial, regional and national level are appointed by the Minister of Labour (Ministro del Lavoro e della Previdenza Sociale) in consultation with the Minister for Equal Opportunities (Ministro delle Pari opportunità) with a remit for issues of equal treatment of men and women in the labour market. 39 37 Italy, Decree issued by government based on delegation of government with the formal force of a law. 38 Italy, Legislative Decree No. 198/2006 (Decreto Legislativo 11 aprile 2006, n. 198); European Commission (2009b), p. 92. 39 Italy, Law 125/1991 (10 April 1991) (Legge n. 125 del 10 aprile 1991), modified by Legislative decree196/2000 (23 May 2000) (Decreto legislative n. 196 del 23 maggio 2000) and by Legislative decree 5/2010 (25 January 2010) (Decreto legislativo n. 5 del 25 gennaio 2010). 37 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The National Office Against Racial Discrimination (Ufficio Nazionale Antidiscriminazione Razziale, UNAR) (promotion-type equality body) was established in 2003. 40 Its mandate comprises the prevention and elimination of discrimination on grounds of race or ethnic origin, the promotion of positive action and the undertaking of studies and research. Based on a policy directive by the Ministry of Equal Opportunities (Ministro delle Pari opportunità), since 2010 it has started to include discrimination on grounds of age, disability, sexual orientation, transgenderism, religion and belief in its awareness-raising activities. At the level of the provinces and regions, non-discrimination offices provide first stage legal advice, counselling and mediation. Equality Counsellors (for the ground of gender) are able to receive complaints, provide counselling and offer mediation services. Equality Counsellors also have the power to ask an employer suspected of discriminatory acts, agreements or behaviours of a direct and indirect nature and with a collective impact to develop and implement measures to remove discriminatory practices. 41 In the event that these measures are considered by the Counsellor to have been inadequately implemented, they can be made enforceable and in case of non-fulfilment the matter can be brought to court (complementary to actions brought directly to court). The Equality Counsellors cooperate with Labour Inspectors (Ispettorati del Lavoro), who have investigative powers, in establishing the facts in discrimination cases. 42 The national and regional Equality Counsellors also have a legal standing in court cases in cases of collective impact if no individual victim can be identified. 43 Cases of discrimination on grounds of race or ethnic origin can be referred to the UNAR, which initiates investigation procedures and offers informal mediation procedures. The UNAR has no legal standing in court, but can refer victims of discrimination to NGOs and other legal entities contained on a national register, who are entitled to provide legal representation as well as to take action in the general interest of a group. Decisions about the discriminatory content of an action, regulation or other matter are reserved for the regular courts. Procedures in court follow general rules of civil procedures. Special provisions are in place for cases of 40 Italy, Legislative Decree no. 215 of 9 July 2003 (Decreto Legislativo n. 215 del 9 luglio 2003). 41 Italy, Code of Equal Opportunities (Codice delle Pari Opportunità), Legislative Decree No. 198/2006 (Decreto Legislativo 11 aprile 2006, n. 198), Article 37. 42 Based on the establishment of a technical liaison board with the Office of the Director general for Inspection Activity of the Ministry of Labour (Ufficio del Direttore Generale per l‟attività ispettiva del Ministero del Lavoro). 43 Italy, Code of Equal Opportunities (Codice delle Pari Opportunità), Legislative Decree No. 198/2006 (Decreto Legislativo 11 aprile 2006, n. 198), Article 37. 38 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) discrimination on grounds of gender, race, ethnic origin, citizenship, religion, disability and, only in relation to employment, also for the grounds of age, sexual orientation and transgender identity. 44 Claims can be filed at the civil courts of first instance without legal representation and judges can, after a short and informal procedure, order the termination of a discriminatory conduct, the removal of the effects of discrimination, compensation payments (including non-material damages) and the publication of the judgment in a national newspaper. The United Kingdom In the United Kingdom, the situation in England, Wales and Scotland is different from that in Northern Ireland. In England, Wales and Scotland, the Equality Act 2010 45 unified, simplified and extended all previous non-discrimination legislation and transpositions of the EU equal treatment directives. It prohibits discrimination in relation to age, disability, gender, gender-reassignment, religion and belief, sexual orientation, pregnancy and maternity, race and marriage/civil partnership, as well as multiple discrimination. It prohibits discrimination on these grounds in relation to 44 Pirazzi, M. (ed.) (2008). 45 United Kingdom, Equality Act 2010, www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpga_20100015_en.pdf http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpga_20100015_en.pdf 39 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) employment and occupation, education, transport, housing, associations and access to goods and services (with the latter scope still to come into force for the ground of age). The Act also imposes a duty on public authorities to have due regard to promoting equality, eliminating discrimination and fostering good relations in fulfilling their functions and carrying out their tasks. The Equality and Human Rights Commission (EHRC) (promotion-type equality body) was established in 2007 as a single body with competences for the protection of discrimination on grounds of race, disability, gender (including transsexuality), age, sexual orientation, religion and belief. It took over the functions and powers of the three Equality Commissions which existed previously, covering race, disability and equal opportunities for men and women. It provides assistance to victims of discrimination on grounds of gender (including transsexuality), age, disability, sexual orientation, race, religion and belief. It provides legal advice and conciliation in individual cases (80% of cases). The United Kingdom government is consulting on a reform of the EHRC. Proposals include that provision of the public helpline and legal support grants be managed directly by government rather than the EHRC. 46 In Northern Ireland the EU equal treatment directives have not been transposed in one single act, but by a number of different legal acts. 47 The Equality Commission for Northern Ireland (ECNI) (promotion-type equality body), which was established in 1999, is competent for discrimination on grounds of age, disability, gender, political belief, religion, race and sexual orientation. It has similar powers and functions to the EHRC. 46 When referring to the EHRC‟s mandate and activities in the different chapters of this report, we report of the actual situation at the time of writing. However, the possibility of changes must be taken into account. More information on the consultation process and the EHRC response can be accessed at www.equalityhumanrights.com/about-us/vision-and-mission/government- consultation-on-our-future/ 47 The main Northern Ireland laws in relation to discrimination are: a. Equal Pay Act (Northern Ireland) 1970. b. Sex Discrimination (Northern Ireland) Order 1976. c. Disability Discrimination Act 1995. d. Race Relations (Northern Ireland) Order 1997. e. Fair Employment and Treatment (Northern Ireland) Order 1998. f. Northern Ireland Act 1998. g. Equality (Disability, etc.) (Northern Ireland) Order 2000. h. Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003. i. Special Educational Needs and Disability (Northern Ireland) Order 2005. j. Disability Discrimination (Northern Ireland) Order 2006. k. Employment Equality (Age) Regulations (Northern Ireland) 2006. l. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. http://www.equalityhumanrights.com/about-us/vision-and-mission/government-consultation-on-our-future/ http://www.equalityhumanrights.com/about-us/vision-and-mission/government-consultation-on-our-future/ http://www.statutelaw.gov.uk/legResults.aspx?LegType=All%20Primary&PageNumber=5&BrowseLetter=E&NavFrom=1&activeTextDocId=2912176#_blank http://www.statutelaw.gov.uk/legResults.aspx?LegType=All%20Primary&PageNumber=3&BrowseLetter=S&NavFrom=1&activeTextDocId=2956289#_blank http://www.opsi.gov.uk/acts/acts1995/1995050.htm#_blank http://www.opsi.gov.uk/si/si1997/19970869.htm#_blank http://www.statutelaw.gov.uk/legResults.aspx?LegType=All%20Primary&PageNumber=1&BrowseLetter=F&NavFrom=1&activeTextDocId=2928527#_blank http://www.opsi.gov.uk/acts/acts1998/19980047.htm#_blank http://www.opsi.gov.uk/si/si2000/20001110.htm#_blank http://www.opsi.gov.uk/sr/sr2003/20030497.htm#_blank http://www.opsi.gov.uk/si/si2005/20051117.htm#_blank http://www.opsi.gov.uk/si/si2006/20060312.htm#_blank http://www.opsi.gov.uk/sr/sr2006/20060261.htm#_blank http://www.opsi.gov.uk/sr/sr2006/20060439.htm#_blank 40 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Claims in the field of employment must be filed at employment tribunals in England, Wales and Scotland and at industrial tribunals in Northern Ireland. Specific fair employment tribunals have also been established for cases concerning religion or political opinion in Northern Ireland. These tribunals all have judicial competence with the power to issue legally binding opinions. Procedures are less legalistic and allow for lay representation. Complainants can receive written reasons for the tribunal‟s judgment, which must include, among other things, relevant findings of fact and a concise statement of the applicable law and how the law has been applied. For enforcement of tribunal decisions the standard court system must be used. The government has recently announced the introduction of court fees to bring cases to employment tribunals, which might constitute a considerable barrier in access to justice. 48 A specific Advisory, Conciliation and Arbitration Service (ACAS) offers conciliation in every employment dispute that is filed at the employment tribunals in England, Wales and Scotland. It also has the power to offer conciliation in cases where no claim has yet been filed. In practice, every complainant will receive notice from ACAS of the appointment of a conciliator who will then seek to agree a settlement of the case to avoid the need for a formal hearing. Disability cases in the field of education can be filed at the Special Educational Needs and Disability Tribunal (SENDIST) in England, Wales and Northern Ireland and at the Additional Support Needs Tribunals (ADSNT) in Scotland. These are relatively informal in their procedures and can make binding judgments. There are no fees for initiating a claim at the SENDIST or at any of the other tribunals. Cases of discrimination in other fields must be processed via the mainstream court system. Claims for less than GBP 5,000/EUR 5,800 may be allocated to the small claims arbitration procedure. Under this simplified procedure, losing parties do not have to pay the costs of the winning side and lay representation of complainants is permitted. 3.1.4 Justice systems in cases of discrimination – summary All Member States included in this research have transposed the EU equal treatment directives into national law and designated a specialised body (or bodies) to ensure access to justice in discrimination cases. Although the directives do not prescribe a structure, there are many differences in the structures that have been established. 48 Information provided by UK experts at the Peer Review Meeting in Vienna, 26 September 2011. 41 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The justice systems in discrimination cases can be characterised by three different types: - type 1 – systems of mainly tribunal-type equality bodies and courts; only the Bulgarian system can be characterised as such a system; - type 2 – systems of promotion-type equality bodies, tribunal-type equality bodies and courts; the systems in Austria and Finland are type 2 systems; - type 3 – systems of promotion-type equality bodies and courts; the systems in Belgium, the Czech Republic, France, Italy and the United Kingdom can be characterised as such. Even within the three categories of systems there are many differences in the roles and function of equality bodies and in the paths to access the various institutions, depending on the national context, but also according to the type of case and the type of discrimination. The regular courts remain key institutions for people seeking to uphold their rights. Nevertheless, equality bodies and other “similar entities” play a key role in all systems, either by facilitating access to the courts or other institutions (promotion-type bodies) hearing cases or by hearing cases themselves in less formal procedures (tribunal-type bodies). In all but one (Czech Republic) of the Member States selected for research equality bodies are located in the capitals, which may cause problems of geographical access to (support in) access to justice. All countries where geographical distance is an issue have dealt with this problem by means of specific measures. Such measures include the establishment of contact points at provincial or regional level (for example, Belgium), regional offices (for example, Bulgaria and France) or the setting up of networks with NGOs and public administrative authorities at the local level (for example, Finland and Italy). The British EHRC has a telephone-based helpline as the primary route for complainants to access its service. Accessing justice in discrimination cases in the eight Member States selected for research is not only characterised by difficulties arising from the complexity of channels to access the system. In addition, procedures, access to support and the general context beyond the individual case may constitute barriers on the routes to justice. The findings of the literature reviews on these issues will be described in Sections 3.2 to 3.4. 3.2 Procedures The right to fair proceedings is a key element for access to justice in discrimination cases and requires the implementation of measures to establish equality of arms, including procedures to shift the burden of proof, and the possibility of appeal. 42 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The shift of the burden of proof is included in equal treatment legislation in all EU Member States. However, the desk research showed that the shift of the burden of proof is not applied adequately in all Member States selected for this research. Another shortcoming from the perspective of the right to fair proceedings is that there are no provisions for appeals against the decisions of tribunal-type equality bodies (Austria, Bulgaria and Finland), although it should be borne in mind that, in the event of dissatisfaction with a tribunal decision, complaints can be filed at the regular court(s). Decisions of a regular court can be appealed. Undue length of procedures is an issue of concern in all countries. Cases relating to the length of procedures are frequently filed at the European Court of Human Rights (ECtHR). A significant number of cases at the ECtHR relate to undue delays in procedures and suggest that problems with delays in judicial systems are systemic. 49 However, there is no standard length of procedure defined in international law, which makes an assessment of the timely resolution of disputes difficult. Moreover, the review of national research indicates that the appropriate length of procedures has to be assessed on the basis of particular circumstances and cases and that there is no „standard procedure‟, which could be used for measuring the appropriate length for cases. The introduction of specific procedures for discrimination cases and the use of injunction procedures emerged as valuable in shortening the time needed for dispute resolution procedures. Obtaining effective remedy or redress is an issue of concern in most countries. Most jurisdictions foresee financial compensation as the main means of reparation in discrimination cases rather than measures for restitution to the original or the desired state. Moreover, research reveals that the level of compensation and sanctions and their adequacy in terms of being effective, proportionate and dissuasive is insufficient. 50 Overview of possibilities of redress in the eight selected Member States Compensation for material damages Compensation for non- material damages Sanctions Non-financial forms of reparation Austria Can be awarded by courts only. Can be awarded by courts only. In case of discriminatory advertisements, sanction of a maximum of EUR 360 issued Can be subject of (non-binding) recommendatio ns by the ETC. 49 FRA (2011b), p. 41. 50 Milieu (2011), p. 44. 43 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Compensation for material damages Compensation for non- material damages Sanctions Non-financial forms of reparation by the district administrative authority. Belgium Yes, by courts. Yes, by courts. Entitlement to award lump sum damages. Yes. Criminal sanctions exist in case of discrimination committed by public servants and in cases of racial discrimination in employment. Can be part of settlement achieved by means of conciliation. Bulgaria Yes, by courts. Yes, by courts. Yes, by tribunal- type equality body. The PADC issues mandatory instructions for remedial or preventative redress. The PADC can approve settlements between parties, which can also include non-financial forms of reparation. Czech Republic Yes, by courts. Yes, by courts. Yes, by labour inspectorates. Can be part of settlement agreement. Finland Yes, by courts. Yes, by courts. The National Discrimination Tribunal can impose conditional fines to enforce compliance with its decisions. The Equality Board has the power to impose conditional fines to enforce compliance with its decisions. The Ombudsman for Minorities and Ombudsman for Equality are both empowered to issue guidance and advice in order to stop discrimination. The Ombudsman for Minorities is also entitled to take measures to achieve reconciliation. France Yes, by courts. Yes, by courts. Limited to Can be part of a 44 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Compensation for material damages Compensation for non- material damages Sanctions Non-financial forms of reparation criminal cases, by courts. settlement agreement reached by mediation provided by the Defender of Rights. Italy Yes, by courts. Yes, by courts. No. The Equality Counsellor can request employers to develop and implement measures to remove discriminatory practices. Courts can order the termination of a discriminatory conduct, the removal of the effects of discrimination and the publication of the judgment in a national newspaper. United Kingdom Yes, by courts and administrative or judicial tribunals. Yes, by courts and administrative or judicial tribunals. No, the introduction of fines is under discussion. Specialised tribunals can make recommendatio ns for action (but e.g. cannot order that the complainant be reinstated). In most countries financial compensation can only be awarded by the courts and tends to be low. Tribunal-type equality bodies can issue decisions on discrimination and sometimes also formulate recommendations, but these are often either non-binding or not enforceable. National research from the United Kingdom indicates that many complainants would prefer to secure change in their situation and the removal of structural discrimination rather than receive financial compensation. 51 51 Aston, et al. (2006); Denvir, et al (2007); Hurstfield, et al. (2004). 45 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The lack of resources of institutions within the justice systems emerges as a key obstacle to the efficiency and effectiveness of procedures in discrimination cases. Efficiency and effectiveness have been improved in some jurisdictions by introducing innovative procedures, developing alternative means of dispute resolution and strengthening the powers and independence of equality bodies. The research on Belgium and Bulgaria identified injunction procedures in order to put an end to an ongoing discrimination (Belgium) and the possibility of ex officio investigations 52 (Bulgaria) as innovative procedures in this regard. Most countries use alternative forms of conflict resolution to provide for better and faster outcomes. ADR can be a prerequisite for entering formal proceedings (for example, in Bulgaria and, in disability cases, in Austria), the outcome of a mediation / reconciliation / settlement can be binding, in other countries the legal status of ADR is not certain. Belgian research indicates that complainants would prefer to have their cases dealt by means of ADR. 53 However, there is a lack of research about the level of satisfaction with outcomes of different forms of ADR in comparison to outcomes of more formal ways of decision-making. Tribunal-type equality bodies as well as other “similar entities” have the power to issue opinions and make recommendations. However, in most cases these decisions are not legally binding and can leave complainants, even with favourable decisions, without adequate redress. A lack of resources and of independence frequently impedes the application of powers available to institutions within the justice system. Strengthening the powers of equality bodies and “similar entities” both formally as well as factually emerges as important for an increase of efficiency and effectiveness of procedures in discrimination cases. 3.3 Support Legal aid, which is usually composed of an exemption (or preliminary exemption) from court fees and funding of legal assistance and representation by a lawyer for procedures in court, was identified as a key support. The fear of high costs is a factor in under-reporting and is not without substance, even though legal aid is available in all EU Member States. This is due to tight applicability rules for legal aid, which can leave many procedures outside its scope. Practical obstacles include a lack of qualified attorneys undertaking free legal representation and the non-availability of legal aid for proceedings taking place predominantly within tribunal-type equality bodies or “similar entities”, where legal representation is not obligatory and no court fees apply. 52 Investigations on an institution‟s own initiative, in this case by the equality body. 53 Vrielink (2010). 46 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Legal advice and assistance is provided by equality bodies, NGOs and trade unions. This can include information about the legal situation, rights and obligations, ways to combat discrimination and various procedural options. It can include support to complainants in bringing forward a case and advice on how to find the most effective ways to access rights, representation and securing access to court and / or tribunal. However, this support is limited by a lack of resources available to these bodies and by barriers to accessing their services (lack of knowledge about their existence, centralisation of services, etc.). The availability of personal, emotional and moral support appears to be very limited and does not appear in the literature referenced in the national reports. A lack of rights awareness is one of the main factors for under-reporting identified throughout research. Access to justice requires knowledge about the existence of rights, about the availability of mechanisms and institutions for the protection of rights, as well as on how to use these mechanisms, and about institutions for seeking redress for rights violations. Gaps in knowledge about the institutions within the general population as well as among vulnerable groups are identified in all these areas in the research reviewed in the reports. 54 There are also significant differences in knowledge levels between different groups of society. However, no research has been identified examining why certain groups might be less aware of their rights than others nor how those groups could be reached effectively. Nevertheless, there is evidence of extensive work in building knowledge of rights. This includes preparing and disseminating information materials, communicating case law outcomes, training and the development of training materials, networking with relevant stakeholders and the preparation of codes of practice. Accommodation of diversity involves taking into account difference and the different needs of potential complainants from across the six grounds. No evidence emerges that this is a standard approach within the institutions of the justice system. What is being done by these institutions remains at a very basic level (barrier-free websites and publication of information in different languages as well as in easy-to-read versions). The institutions within the justice system do not appear to deploy strategies to take account of the diversity of groups targeted or include procedures to identify and respond to the specific needs of individual complainants across the full diversity of grounds covered, although efforts to that effect are made by various institutions. 55 3.4 Beyond the individual case 54 FRA (2010a); also Lemmens, P. et al (2010). 55 See, for example, on the Belgian CEOOR, Ouali, N. et al (2008), pp. 76-79. 47 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Access to justice in cases of discrimination is impeded not only by barriers for individual complainants but can also depend on factors beyond the individual case. A lack of legal certainty, due to legal provisions being unclear for the individual or due to lack of legal interpretation, makes seeking one‟s rights more risky. Insecurity about the outcomes of the case has been found to be a factor in under-reporting in research reviewed. The review of research and literature identified tools that are used to enhance legal certainty. These include strategic support of selected cases, litigating a case in the general interest on one‟s own behalf, filing a class action in the interest of a group, intervening as amicus curiae or simply by providing extensive legal assistance in cases of strategic interest. The publication of case law and the development of guidance for legal interpretation are other tools to improve legal certainty. A favourable context for rights execution, a culture of rights within overall society, is an important prerequisite for effective access to justice in discrimination cases. Limited research and activities could be identified by the review of literature and research on how societal attitudes could be addressed in order to create a more favourable atmosphere, on initiatives in this regard or the effects thereof. Activities identified by national literature reviews include public awareness- raising campaigns, work with the media, the provision of training to key groups and initiatives to enhance the effectiveness of equal treatment legislation. A strategic incorporation in equal treatment legislation of a general duty on public sector bodies of “building understanding and respect for rights” (Australia), 56 of “encouraging and supporting a society” free of discrimination and respectful of the protection of human rights (United Kingdom) 57 has been seen to assist in this regard only outside continental Europe. 3.5 Conclusions The findings of the literature review above provided the context for carrying out the fieldwork undertaken for this study. Preliminary conclusions drawn from the literature review were used to formulate a set of 20 hypotheses to be verified against the findings of the fieldwork, presented in Chapter 4 - 7. The hypotheses are presented below . 56 Australian Human Rights Commission (2010). 57 As foreseen for the ECHR by United Kingdom, Equality Act 2006, Article 3, see http://www.legislation.gov.uk/ukpga/2006/3/section/3 http://www.legislation.gov.uk/ukpga/2006/3/section/3 48 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) a) Structures There is a wide range of different paths for access to justice in discrimination cases. The availability of different points of access is dependent on the type of case, the field of competencies of the different institutions in charge, the applicability of federal or provincial / regional legislation and structures, the geographical distance and the objectives of the potential complainant. Hypothesis 1: The complexity of institutional structures, equal treatment legislation and the diversity of paths available to complainants pose obstacles to access to justice Hypothesis 2: The geographical distance between potential complainants and dispute resolution bodies impedes access to justice b) Procedures The operation of structures and procedures for access to justice reveals some deficits with regard to the right to fair proceedings. Little is done in order to equalise the position and the range of arms of parties in discrimination cases, specifically the shift of the burden of proof is not applied adequately. No appeal procedures are available against decisions of predominately tribunal-type equality bodies and most “similar entities” with competency to formulate non- binding decisions. Appeal is limited to enforceable judgements made by courts. Hypothesis 3: Equality of arms between the complainant and the (alleged) perpetrator of discrimination enhances access to justice. Hypothesis 4: Inadequate application of the shift of the burden of proof diminishes access to justice in cases of discrimination. Hypothesis 5: Appeal procedures in cases of discrimination are sufficiently available to ensure fair proceedings. There is evidence that procedures in discrimination take too long, even if the specific circumstances of a case are acknowledged to be the determining factor for the length of procedures and no standard procedure is available as measurement criteria. Hypothesis 6: Procedures in cases of discrimination are taking too long and complainants do not know how long they may have to wait for justice, which contributes to under-reporting. Remedies and redress in discrimination cases are mostly limited to pecuniary compensation, which can only be obtained by enforceable court judgements 49 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) and tends to be low. Decisions by predominately tribunal-type equality bodies can include recommendations but are not legally binding. There is evidence that complainants would prefer to secure change in their situation and the removal of structural discrimination compared to financial compensation. Hypothesis 7: The range of remedies available in discrimination cases does not include sufficient remedies that reflect the aspirations of complainants. Hypothesis 8: The sanctions available and the compensations ordered are too low in cases of discrimination to be dissuasive and effective. Hypothesis 9: Giving equality bodies the power to make legally binding decisions, as other administrative and judicial institutions already have, enhances the effectiveness of remedies. A lack of resources, limitations of independence and of powers of equality bodies emerge as key obstacles to the efficiency and effectiveness of procedures in discrimination cases. There are some examples of innovative procedures that might have a positive impact on efficiency and effectiveness. ADR procedures are used frequently inter alia to increase efficiency and effectiveness. Hypothesis 10: Innovative procedures applied by equality bodies and administrative and judicial institutions in cases of discrimination enhance the efficiency and effectiveness of procedures. Hypothesis 11: The availability of ADR procedures has a positive effect on the efficiency and effectiveness of procedures. Hypothesis 12: The lack of powers, resources and limitations of independence of equality bodies undermines the efficiency and effectiveness of their procedures. c) Support Legal aid and assistance are formally available but lack accessibility in practice due to strict application of means testing, lack of experience of legal professionals who provide free legal aid, limitation of legal aid for court procedures and limited resources of NGOs and equality bodies. Research on under-reporting, however, shows that the costs of procedures as well as a lack of knowledge about rights are decisive factors in whether or not to file a complaint. The provision of emotional and personal support is not addressed as a subject of research. 50 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Hypothesis 13: Legal aid and assistance are critical for complainants to navigate complex institutional systems and to achieve successful outcomes in cases of discrimination, Hypothesis 14: Emotional and personal support are important in motivating and sustaining the complainant in cases of discrimination. A lack of rights awareness is one of the main factors for under-reporting identified throughout the research. There are also significant differences in knowledge levels between different groups of society. Hypothesis 15: Low levels of awareness of rights under equal treatment legislation and of how to exercise these rights is a critical barrier for access to justice in cases of discrimination. Hypothesis 16: Levels of awareness of rights differ for different groups covered by equal treatment legislation. Potential complainants in discrimination cases are characterised by a variety of different backgrounds, characteristics, levels of rights knowledge and needs, which has to be taken into account in order to provide equal access to justice. Only limited initiatives to ensure difference is addressed and diversity accommodated can be identified in the procedures of the institutions involved and in the support provided by a range of different bodies. Hypothesis 17: Equality bodies and other administrative and judicial institutions show little awareness and concrete action regarding accommodation of diversity in procedures and support for the different grounds of discrimination and/or for different groups. d) Beyond the individual case A lack of legal certainty can increase insecurity about the potential outcomes of a case. In a broader context, lack of clarity about legal definitions and concepts builds a barrier to putting principles into practice. Strategic support of individual cases and litigation in the general interest emerge as possible ways to increase legal certainty. Other strategies include documentation of case law and decisions in discrimination cases. Hypothesis 18: Enforcement models beyond the individual rights strategy enhance access to justice. Hypothesis 19: Uncertainty among complainants about the possible outcome of a case is a factor in under-reporting. 51 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The general attitude within society towards the execution of rights in discrimination cases is not very favourable in many national contexts. This is identified as a main obstacle to reporting cases of discrimination. Hypothesis 20: A culture of rights within the general population stimulates and encourages people to report incidents of discrimination. The presentation of the findings of the fieldwork in Chapters 4-7 is structured around the four headings for grouping the elements of access to justice and the presentation of the hypotheses: - Chapter 4 – Access to a dispute resolution body - Chapter 5 – Procedures - Chapter 6 – Support in cases of discrimination - Chapter 7 – Access to justice beyond the individual case. Each of the chapters starts with a presentation of the hypotheses generated in connection with the elements of access to justice in this section (see a) – d) above). This is followed by the experiences and views of the complainants in connection with the respective aspects of access to justice. Their assessment is at the core of each of the (sub-)sections. Information generated by the interviews with non-complainants is only added to provide examples and is not assessed in a systematic way. The experiences and views of the complainants are followed by the presentation of the contextual conditions on access to justice for (potential) complainants, as perceived by the respondents from equality bodies, “similar entities” and intermediaries. Where the opinions of the latter on the contextual conditions are very different, they are dealt with separately; where their views converge, they are presented together. At the end of each (sub-)section we compare the experiences of the complainants with the assessment of the representatives of the equality bodies, “similar entities” and intermediaries and relate these findings to the respective hypotheses. 52 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 4 ACCESS TO A DISPUTE RESOLUTION BODY The framework for the analysis of access to dispute resolution bodies is based on the following two hypotheses which were listed in Section 3.5: - Hypothesis 1: The complexity of institutional structures, equal treatment legislation and the diversity of paths available to complainants pose obstacles to access to justice. - Hypothesis 2: The geographical distance between potential complainants and dispute resolution bodies impedes access to justice This chapter first looks into the legal provisions, institutional structures and paths available to the complainants in the systems in the eight Member States (see Section 4.1). In a second step (Section 4.2) the importance of the geographical accessibility of dispute resolution bodies is analysed. 4.1 Structure and legislation The complexity of the institutional structures and the diversity of paths available to complainants can first of all be discerned from the different paths chosen by the complainants interviewed (for selection of complainants see Section 2.5.3) and the broad spectrum of dispute resolution bodies and intermediaries offering support to (potential) complainants. The assessment of the extent to which complainants see these structural complexities and the intricate legal provisions as obstacles on their way to justice will be based on answers relating to the challenges they face when trying to navigate the system of access to justice. 4.1.1 Experience of complainants of structure and legislation The complexity of the systems in the eight Member States reviewed is reflected in the many different paths chosen by the complainants interviewed (see Table 1). Complainants chose between one (Bulgaria) and seven (Austria) different paths for access to justice. The majority of the complainants had taken their cases to one dispute resolution body; about a quarter of the complainants had taken their cases to at least two different institutions. In 70% of cases complaints were first lodged with an equality body (either promotion or tribunal-type). However, this is not surprising bearing in mind that 40% of complainants interviewed were suggested as potential interviewees by equality bodies (see Section 2.5.3 above). Table 1 – Paths to access to justice broken down by the eight Member States (N = 213) 53 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The case was taken to … Number of institutions involved A u s tr ia B e lg iu m B u lg a ri a C z e c h R e p u b li c F in la n d F ra n c e It a ly U n it e d K in g d o m Total predominantly promotion- type equality body 1 5 14 -- 3 17 11 2 -- 52 predominantly tribunal-type equality body 1 7 -- 29 -- -- -- -- -- 36 court 1 6 -- -- 8 4 -- 19 -- 37 predominantly promotion- type equality body + court 2 -- 8 -- -- -- 10 4 4 26 administrative / judicial institution 1 4 1 -- 7 2 3 1 7 25 predominantly promotion- type equality body + administrative / judicial institution 2 -- -- -- -- -- 3 -- 13 16 administrative / judicial institution + court 2 2 -- -- 1 1 -- 1 5 predominantly promotion + tribunal-type equality body 2 3 -- -- -- 2 -- -- -- 5 predominantly promotion- type equality body + administrative / judicial institution + court 3 -- -- -- -- 1 2 1 -- 4 intermediary 1 -- 1 -- 1 -- -- 1 -- 3 internal grievance procedure 58 1 -- 1 -- 2 -- -- -- -- 3 predominantly tribunal-type equality body + court 2 1 -- -- -- -- -- -- -- 1 Total -- 28 25 29 21 27 30 28 25 213 Almost 60% of the complainants in all eight Member States reviewed had at least considered alternatives to the route or routes finally chosen. About a quarter of complainants had tried to avoid lodging a formal complaint by engaging in discussions with the organisation responsible for the discrimination or by undergoing mediation or internal grievance procedures (see Table A-4.1). Internal grievance procedures refer to dispute resolution mechanisms established within public bodies, companies or other organisations which have been accused of discrimination. Among the eight Member States studied, this kind of dispute resolution mechanism is most often applied in the United Kingdom and Italy. Most of the complainants interviewed in the United Kingdom, 58 Internal grievance procedures refer to conflict resolution mechanisms established within public bodies, companies or other organisations which have been accused of discrimination. They aim to resolve disputes without direct external involvement of equality bodies or intermediaries. 54 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) however, found this procedure rather stressful, as the complainants had to undergo this procedure without much external support. As these internal procedures did not result in a resolution of the conflict, the complainants decided to take their cases further. About 10% of the complainants thought about taking their case to a court, to a different court from the one to which they had originally taken their case or to another public body. Only a few complainants thought about lodging a complaint with an equality body or a different equality body from the one they had involved originally. However, in terms of other alternatives, even fewer complainants considered lodging a complaint with trade unions, the police or NGOs and contacting the media. About one quarter of the complainants interviewed also complained to institutions other than the complaints and dispute resolution bodies they finally lodged their complaints with (see Table A-4.2). These contact points either redirected them to the paths finally chosen and / or the complainants were not successful in achieving any outcome by way of these alternative paths. Almost 30% of the complainants who had lodged a complaint somewhere else tried to get support from different public authorities, such as ministries whose policy fields were concerned (for example, education and health), municipalities or the mayors of the city allegedly responsible for the discrimination experienced by the complainants. About 15% of the complainants interviewed turned to courts, intermediaries or equality bodies which were not the ones with which they finally lodged their complaints, even fewer tried labour inspectorates or the police. Other findings also indicate that it was quite challenging for the complainants to deal with the complexity of the various systems. For instance, about one third of the complainants had called on the services of legal experts before they lodged a complaint. Moreover, some complainants said that it would have been impossible to navigate the system successfully without legal advice. Only a few complainants interviewed pointed to issues concerning legal provisions. Due to the complexities of the law and the difficulty of understanding how these provisions are put into practice, it was seen as disadvantageous by some complainants that they had not been provided with adequate information on the procedures available right at the beginning of a complaints procedure. 4.1.2 Views of equality bodies, “similar entities” and intermediaries on structure and legislation In each Member State there are quite a number of dispute resolution bodies as well as intermediaries. This makes it more difficult for potential complainants to discern which body plays which role and which paths are the most appropriate. 55 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) In the sample of the eight Member States 22 interviews were conducted with representatives of equality bodies which are predominantly promotion-type bodies, seven with representatives of predominantly tribunal-type bodies and six with representatives of “similar entities” taking cases to a conclusion (see Table 2). Table 2 – Number of interviews per equality body (promotion / tribunal) and “similar entities” (N = 35) Member State predominantly promotion-type body predominantly tribunal-type body “similar entities” taking cases to a conclusion Total Austria 2 2 1 5 Belgium 4 -- 1 5 Bulgaria -- 4 0 4 Czech Republic 4 -- 0 4 Finland 2 1 2 5 France 4 -- 0 4 Italy 2 -- 2 4 United Kingdom 4 -- 0 4 Total 22 7 6 35 In almost all eight Member States, representatives of equality bodies or administrative / judicial institutions confirmed the view that the equal treatment legislation, as well as the paths available for gaining access to justice in discrimination cases, are complex or not transparent. In Belgium, Italy and the United Kingdom representatives of equality bodies frequently expressed their view that amendments to legislation are needed to reduce the complexity of legal provisions. Furthermore, clarification of the concept of discrimination was seen as an issue that needed to be addressed in France and Italy. In Austria it was often said that the role of the tribunal-type equality body was rather unclear – the spectrum included a low-threshold institution as well as a judicial institution. Complainants not only face an intricate system of dispute resolution bodies, but can choose from a broad spectrum of different kinds of intermediaries offering support in cases of discrimination (see Table 3). Table 3 – Diversity of intermediaries (N = 95) Intermediaries A u s tr ia B e lg iu m B u lg a ri a C z e c h R e p u b li c F in la n d F ra n c e It a ly U n it e d K in g d o m Total 56 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) NGOs 9 3 4 3 6 2 4 2 33 Lawyers 3 4 5 6 1 4 3 1 27 Specialised lawyers 1 4 3 2 3 2 1 5 21 Victim support organisations 0 3 0 4 3 7 0 2 19 Trade unions / social partner organisation 1 0 0 0 1 0 3 1 6 Public bodies 0 0 0 2 1 0 1 0 4 Mediators 0 0 0 1 0 2 0 0 3 Company counsellors 0 0 0 2 0 0 0 0 2 Others 0 0 2 1 0 0 1 1 5 Total 14 14 14 21 15 17 13 12 120 Intermediaries in all Member States except for Bulgaria raised the issue of the complexity and fragmentation of legal provisions on equal treatment. They saw the complexity of procedures as a little less of an issue. In Austria NGOs viewed the complexity of legislation as an obstacle to providing good legal advice. The complexity appeared primarily to be caused by non- harmonised legal provisions at the federal and provincial level as well as by the purported hierarchy of the protection of grounds. Due to the hierarchy of the protection of grounds there is no equality body responsible for supporting complainants who have experienced discrimination on the grounds of age, religion / belief and sexual orientation outside employment. Similar problems were raised in other Member States. For example, in Italy a broad spectrum of intermediaries, including lawyers, an NGO and a trade union, expressed their discontent with the complexity of the legal provisions. Legal provisions are fragmented and unclear, particularly due to the hierarchy of the protection of grounds and the different definitions of discrimination depending on which grounds are concerned. In addition, the different procedures available for gender and other grounds impede proper action in cases of multiple discrimination. Multiple discrimination was also identified by an NGO in Austria as a cause for not directing complainants to the correct dispute resolution body, as different bodies are competent for multiple discrimination depending on whether or not it includes disability. In the United Kingdom, several intermediaries identified the complexity of both laws and procedures as obstacles for complainants. In particular legal provisions regarding disability and equal pay were seen as unclear. 4.1.3 Analysis In all eight Member States complainants in discrimination cases can address themselves to an equality body, a court or an administrative / judicial institution. As explained in Section 2.5.3 the majority of complainants interviewed for this study were identified on the basis of a complaint they lodged with an equality body. Therefore the majority of complainants interviewed for this study chose an 57 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) equality body as the first point of entry into the system. The complainants interviewed less often approached “similar entities” and courts. Once the complainants have managed to enter the broader system of access to justice, they still cannot be sure that they have ended up with the most appropriate organisation or dispute resolution body to deal with their case. The experiences of complainants show that the diversity of paths available to them poses an obstacle to easy access to justice (Hypothesis 1). The information or support given by predominantly promotion-type equality bodies should be – in addition to support given by intermediaries – essential for navigating a complex system. Some complainants said that more information on which procedures would be most suitable and most likely to result in a successful resolution of their case would have been useful in orienting themselves and gaining access to justice. These statements by complainants underpin the hypothesis that complainants perceived the complexity of institutional structures as an obstacle in gaining access to justice (Hypothesis 1). The representatives of equality bodies, “similar entities” and intermediaries logically focused less on the intricacy of the institutional structures and options available to the complainants. They placed more emphasis on the complexity of legal provisions they face when giving legal advice and which makes access to justice for complainants more difficult. Intermediaries saw structures as especially complicated when there are a number of equality bodies covering different grounds of discrimination. This was said to be particularly complicated in cases of multiple discrimination. The lack of, or differences in, definitions of concepts of discrimination, a hierarchy of grounds, long or open lists of grounds, and the fragmentation of legal provisions between grounds or areas of discrimination were seen as impeding access to justice. A few complainants also mentioned legal complexities as an obstacle to access to justice. Overall, representatives of equality bodies, “similar entities” and intermediaries and complainants saw the complexity of equal treatment legislation and the diversity of paths available to complainants as making access to justice more difficult (Hypothesis 1). 4.2 Geographical access Access to a dispute resolution body is influenced by the geographical distance between the potential complainants and the dispute resolution bodies. Physical mobility, financial resources and time available determine whether or not complainants who do not live in the vicinity of a dispute resolution body will seek access to it. 58 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Geographical distance from the perspective of complainants can be determined by looking at the travel distances and costs as well as to the extent complainants interviewed felt geographical access was an issue. Whether representatives of equality bodies, “similar entities” or intermediaries see geographical proximity as a barrier to access to justice can be determined by identifying and assessing strategies to increase proximity to (potential) complainants. 4.2.1 Experience of complainants of geographical access Of the complainants interviewed, about 40% lived in the same city where the dispute resolution body was located, another quarter within one hour‟s travel and about 25% lived more than an hour‟s journey away (see Table A-4.3). Fewer than 10% of the complainants interviewed had to travel for more than five hours. Nearly 40% of the complainants interviewed had to make greater efforts to reach the organisation with which they had lodged a complaint – namely taking a journey of between one and five hours. Almost half of the complainants in the United Kingdom and the Czech Republic had to travel between one and five hours to the respective dispute resolution body. In France the same was true for about one third of the complainants, in Belgium for about one quarter and in Austria for one fifth. In Bulgaria and Finland more complainants than in the other Member States reviewed had to travel more than five hours to the respective dispute resolution body. Geographical access does not depend only on physical mobility but also on personal and financial resources. About 35% of the complainants answered the question about their travel costs (see Table A-4.4). In most of these cases the complainants had to cover their travel costs themselves (see Table A-4.5). The travel expenses of complainants in France and Italy were not reimbursed, which is also true for the majority of cases in Austria, Bulgaria, the Czech Republic and the United Kingdom. Few complainants in Belgium and Finland answered the question on travel expenses. Of the complainants interviewed, only a few (in Austria, France, Italy and the United Kingdom) identified a lack of geographical accessibility to legal advice and assistance as an obstacle in accessing justice. However, a complainant in Bulgaria chose to lodge their complaint with the equality body located in the capital in preference to the regional office close to their place of residence. In this case, proximity engendered a feeling of distrust and fear. 4.2.2 Views of equality bodies, “similar entities” and intermediaries on geographical access 59 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) In at least seven Member States representatives of equality bodies and “similar entities” explicitly identified outreach work as a necessity to improve proximity to the complainants. In Austria, cooperation with community organisations and NGOs was identified as a feasible way of reaching out to potential complainants. In Bulgaria, the predominantly tribunal-type body toured the areas where discrimination was most likely to occur during the first two years after it was established. The increase in cases due to this exercise made it impossible to keep up this activity. In France, the equality body has established local volunteers to heighten its proximity to potential complainants. In the United Kingdom the equality body funds 92 law centres and Citizens Advice Bureaux. However, this outreach work is threatened by budget cuts planned for 2012. Intermediaries in almost all eight Member States except Italy raised the issue of geographical proximity to potential complainants. A representative of a community organisation in Austria saw it as a disadvantage that there were no regional offices of the promotion-type equality body with competency for grounds other than gender. A representative of an NGO in Belgium identified geographical distance as especially problematic for people with hearing impairments, as it is more difficult for them to communicate by phone. A specialised lawyer in Bulgaria would like to see more regional offices of the equality body established and suggested giving the regional bodies more powers, such as investigative powers. In Finland and Austria there are umbrella NGOs which try to increase proximity to potential complainants through their member organisations located in different regions. Trade unions in Austria, Finland, Italy and the United Kingdom also have a relatively high proximity to potential complainants due to their network of employee and union representatives. Specialised lawyers in the United Kingdom hinted at geographical restrictions attached to funding, which means that the funds can only be used for support within the geographical boundaries specified by the funding institution. This means that complainants cannot be referred across geographical boundaries, where they might get better support unavailable within the geographical boundaries specified by the funding institution. 4.2.3 Analysis Geographical accessibility depends on the size of the Member State and the systematic distribution of „first contact points‟ across the territory of the eight Member States. Although about 35% of complainants interviewed had to travel more than one hour to get to the dispute resolution body where their complaint was lodged, relatively few complainants explicitly identified lack of geographical accessibility as an obstacle in accessing justice. Nevertheless, it may be an issue, bearing in 60 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) mind the time the complainants had to spend in order to gain access to the competent dispute resolution bodies. Many of the representatives of equality bodies mentioned proximity to (potential) complainants as a factor in promoting access to justice and referred to the development of strategies for overcoming the challenges of geographical accessibility. Strategies aiming at closing the geographical gap include: - the establishment of regional offices as part of the equality body; - the funding of regional / local organisations by the equality body; - the establishment of organisations which are not affiliated with the equality body through legal provisions; - the cooperation of the equality body with NGOs or community organisations. Among the intermediaries, the most effective way of increasing proximity to complainants is cooperation with NGOs and community organisations, utilising member organisations or other established networks such as trade union or employee representatives. The development of strategies to close the geographical gap with complainants shows that equality bodies and intermediaries believe that this could be a factor impeding access to justice (Hypothesis 2), even though the complainants interviewed did not raise geographical proximity as one of the most important challenges in access to justice. How the geographical gaps are bridged depends on the different systems which have evolved over the years in order to promote access to justice in the specific national contexts of the eight Member States. Overcoming geographical distances can be done via first contact points providing initial advice established close to where discrimination happens and by making use of existing first contact points, such as employee representatives, trade unions, lawyers and NGOs. 61 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 5 PROCEDURES As explained in Section 2.3 on the constitutive elements of access to justice, the term „procedures‟ refers to legal and non-legal processes before a court, predominantly tribunal-type equality body or “similar entities” during which cases are lodged, parties are informed, evidence is presented and facts are determined. This chapter describes the findings of the interviews with the four groups of respondents with regard to four elements of access to justice in relation to procedures. The four elements of access to justice analysed in this chapter are: - fair proceedings - the timely resolution of cases - effective remedies and redress - efficiency and effectiveness of procedures. The following hypotheses set the framework for analysing the fieldwork data on support in cases of discrimination: - Hypothesis 3: Equality of arms between the complainant and the (alleged) perpetrator of discrimination enhances access to justice. - Hypothesis 4: Inadequate application of the shift of the burden of proof diminishes access to justice in cases of discrimination. - Hypothesis 5: Appeal procedures in cases of discrimination are sufficiently available to ensure fair proceedings. - Hypothesis 6: Procedures in cases of discrimination are taking too long and complainants do not know how long they may have to wait for justice, which contributes to under-reporting. - Hypothesis 7: The range of remedies available in discrimination cases does not include sufficient remedies that reflect the aspirations of complainants. - Hypothesis 8: The sanctions available and the compensations ordered are too low in cases of discrimination to be dissuasive and effective. - Hypothesis 9: Giving equality bodies the power to make legally binding decisions, as other administrative and judicial institutions already have, enhances the effectiveness of remedies. - Hypothesis 10: Innovative procedures applied by equality bodies and administrative and judicial institutions in cases of discrimination enhance the efficiency and effectiveness of procedures - Hypothesis 11: The availability of ADR procedures has a positive effect on the efficiency and effectiveness of procedures. - Hypothesis 12: The lack of powers, resources and limitations of independence of equality bodies undermines the efficiency and effectiveness of their procedures. 62 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) This analysis is primarily based on the experiences of the complainants interviewed with the concrete procedures they have gone through. 5.1 Fair proceedings The following requirements relating to fair proceedings will be analysed: - equality of arms between the complainant and the (alleged) perpetrator of discrimination; - shift of the burden of proof; - appeal procedures; - victimisation; - distrust in the justice system. The basis for the analyses of the fieldwork data related to fair proceedings are the following three hypotheses taken from Section 3.5: - Hypothesis 3: Equality of arms between the complainant and the (alleged) perpetrator of discrimination enhances access to justice. - Hypothesis 4: Inadequate application of the shift of the burden of proof diminishes access to justice in cases of discrimination. - Hypothesis 5: Appeal procedures in cases of discrimination are sufficiently available to ensure fair proceedings. 5.1.1 Experience and assessment of complainants of fairness of procedures A few complainants in at least four of the eight Member States – namely Austria, the Czech Republic, France and the United Kingdom – perceived the defendants as much more powerful in the procedure than themselves. 59 This was either because the defendants were international or large companies or because they had more than one lawyer. The complainants who had a less favourable opinion of the tribunal-type equality body in Bulgaria saw the body as reluctant to combat discrimination by the Orthodox Church. One complainant in the United Kingdom had the experience that the defendant managed to fill the tribunal with an audience which was on the defendant‟s side, which negatively impacted on the equality of arms. Complainants obviously want their cases to be taken seriously by those intervening on their behalf or deciding on the outcome of the cases. Appreciation of the individual case is therefore important. This appreciation involves giving the complainants the opportunity to tell their stories and giving them the feeling that their stories are being heard. About 70% of the complainants said that they were able either „mostly‟ or „fully‟ to tell their story 59 See section 2.2 (terminology) and glossary for a definition of the term defendant. 63 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) during the procedure (see Table A-4.8), but only 50% had the feeling that their story was “mostly” or “fully” listened to (see Table A-4.10). Predominantly tribunal- or promotion-type equality bodies most often gave the complainants the opportunity to tell their stories and they were also more attentive in listening to these stories (see Table A-4.9, Table A-4.11) in contrast with courts. Complainants were of the opinion that judges in courts had made less room for them to tell their stories (see Table A-4.9) and were less willing to listen to them (see Table A-4.11). 60 This could be seen as a further issue related to equality of arms. Appeal procedures were pending in 18 cases, 12 of which had been decided in favour of the complainants and were appealed by the defendants (Austria, Bulgaria, France, Italy and the United Kingdom). Six were taken to the next instance by complainants who had lost their case (Austria, Italy and the United Kingdom). Very few complainants whose cases were challenged by the defendants were of the opinion that appeal procedures should not be possible in discrimination cases. In all eight Member States at least one complainant raised the issue of victimisation which results in intimidation of complainants. Six complainants made explicit reference to the fact that either they themselves or their family had been victimised. Another five complainants mentioned (fear of) victimisation of (potential) witnesses as problematic, as it would prevent them from testifying during the procedure. Four other complainants feared negative consequences either for their future careers because they were labelled as „trouble makers‟ or for their legal status because they were third-country nationals. When asked about lodging an anonymous complaint, if that were possible, as a means against victimisation of either the complainant or the complainant‟s family members, about 10% of the complainants were in favour (see Table A- 4.12). Three of the 21 complainants who deemed lodging an anonymous complaint to be a good idea indicated that their complaint had been an anonymous one. These were complainants from Belgium, Finland and the United Kingdom. One complainant was anxious that his „foreign-sounding‟ name might trigger negative attitudes among legal counsellors or judges. Furthermore, people with a migrant background and maybe an insecure residence status feared negative consequences affecting other areas of their lives. In at least six Member States complainants raised the issue of trust in the justice system and in respective institutions as negatively influencing their perceptions of fair proceedings and as a consequence impeding access to 60 Categories including fewer than ten cases are not analysed. 64 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) justice. Lack of trust in equality bodies was mentioned by complainants in Belgium and the Czech Republic. Complainants in Bulgaria and Italy reported distrust in courts and the judicial system. In France one complainant was not sure of the trustworthiness of the stakeholders in the field of equal treatment. In Finland there was one complainant who mistrusted the Occupational Safety and Health Authorities and one who mistrusted the police. One complainant in Bulgaria was distrustful of the regional office of the equality body and felt more inclined to trust the one further away from their home town. 5.1.2 Views of equality bodies, “similar entities” and intermediaries on fairness of procedures The average assessments of the situation of equality of arms in the eight Member States by representatives of equality bodies, “similar entities” and intermediaries were to a large extent congruent. Only in Finland did the intermediaries tend to be much more critical of the availability of measures guaranteeing equality of arms than the representatives of equality bodies. Results of the fieldwork show that the majority of the representatives of promotion-type equality bodies saw some availability of measures to counter actions that diminish the equality of arms between complainant and defendant. A few representatives of promotion-type equality bodies saw equality of arms as not being guaranteed at all (see Table A-4.13) – one of them was a representative of a dispute resolution body in Italy, the other three were based in the United Kingdom. About half of the representatives of tribunal-type equality bodies considered that equality of arms was at least to some extent guaranteed. Representatives of equality bodies do not seem to be entirely convinced that the measures currently available for guaranteeing equality of arms are sufficient. One respondent in the United Kingdom, for instance, saw employers who had allegedly perpetrated discriminatory acts threaten complainants with the costs of proceedings; there were no measures available to protect the complainant against such threats. The intermediaries painted a more ambivalent picture of the situation concerning equality of arms than the representatives of equality bodies (see Table A-4.14), as 20% of the intermediaries saw equality of arms guaranteed to a large extent and 30% not at all. An intermediary in Austria suspected large companies accused of discrimination of blackmailing witnesses. The remaining intermediaries were of the opinion that equality of arms was guaranteed to some extent. 65 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Reasons for inequality of arms identified by the intermediaries were first of all the imbalance of resources between complainants and defendants. The latter were usually well resourced and would sometimes even employ more than one lawyer to accompany them through the proceedings. The complainants, on the other hand, were usually not so well resourced. Yet, according to many of the representatives of equality bodies and intermediaries, legal representation was an absolute necessity for the complainants, not only in order to navigate the intricate systems of access to justice but also to achieve satisfactory outcomes. Access to good quality legal advice and assistance was seen as essential in guaranteeing equality of arms. Only then can complainants be on an equal footing with the alleged discriminator and be in a position to utilise the powers of courts and tribunals vis-à-vis the defendant. Representatives of equality bodies and intermediaries suggested that improving the legal aid system and more funding for legal advice and representation were key factors in guaranteeing equality of arms. Equality of arms requires that both parties provide all the necessary documents and information during a procedure. About 70% of the representatives of promotion-type and tribunal-type equality bodies and of “similar entities” (see Table A-4.13) who answered the relevant question were of the opinion that measures guaranteeing the provision of all necessary documents were only available to some extent. The remainder saw the provision of documents as not being guaranteed at all. The intermediaries saw measures in place to ensure the provision of relevant documents and information to a slightly greater extent (see Table A-4.14). In several Member States representatives of promotion-type and tribunal-type equality bodies saw the non-application of the shift of the burden of proof by judges as having a negative impact on the quality of the procedures and the outcomes. This was due to a lack of awareness among judges of the concept (Austria) or a lack of clarity in the law about when and how to apply it (the Czech Republic). The quality of decisions by tribunal-type bodies were mentioned by intermediaries as an issue in Austria and Bulgaria. The quality of these decisions was seen as important in any appeal procedure that followed in court. In Austria representatives of equality bodies were of the opinion that the quality of the reasoning and the decisions of the tribunal-type body was essential so that courts which subsequently have to take the decisions into account can more easily integrate them into their reasoning. The intermediaries in Bulgaria had divergent views on the quality of the decisions by the tribunal-type body and to what extent they were confirmed or challenged by the next instance. Confirmation of a decision by the next instance 66 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) was seen as an indicator for the quality of the work of the tribunal-type body and was said to contribute to the improvement of the standing of the body. However, it was also mentioned that judges in the court of appeal were not always aware of the concepts introduced by the EU equal treatment directives. Intermediaries, especially in Italy and the United Kingdom, identified complainants‟ fear of victimisation or retaliation as a barrier to access to justice. Two lawyers (one in Finland and one in France) were, however, of the opinion that victimisation was not an issue (see Table A-4.13 and Table A-4.14). Representatives of equality bodies in at least six of the eight Member States reviewed (Austria, Belgium, Czech Republic, Finland, Italy and the United Kingdom) and intermediaries – mostly lawyers, representatives of NGOs, victim support organisations and trade unions (Austria, Czech Republic, Finland, Italy and the United Kingdom) identified complainants‟ fear of victimisation as a major barrier to lodging complaints. This was seen as particularly problematic within small professional communities. Fear of victimisation and retaliation was especially present among those complaining about discrimination in the workplace, due to a hierarchical and / or close relationship to the discriminator. Most of the representatives of equality bodies believed that measures protecting the complainant against victimisation are to some extent in place (see Table A- 4.13). Intermediaries were a little less convinced about the availability of such measures – especially trade unions, lawyers and NGOs (see Table A-4.14). Equality bodies (50%), especially tribunal-type equality bodies, are slightly more convinced than intermediaries (30%) that the measures they can take to protect the complainant against victimisation are dissuasive and effective (see Table 4.15). Representatives of NGOs, victim support organisations and trade unions are the most sceptical (see Table 4.16). Equality bodies seldom seem to see the necessity of taking measures to protect complainants against victimisation (see Table 4.17). Equality bodies located in Austria, the Czech Republic, Finland and the United Kingdom said that they take measures to protect complainants against victimisation in between 1% and 20% of the cases they deal with. The findings of the fieldwork do not allow a conclusion to be drawn as to whether the issue is that victimisation does not occur often, so that protection against it is not necessary, or whether equality bodies do not become aware that a complainant has experienced victimisation. Representatives of equality bodies in almost all eight Member States referred to the need for improved legal provisions to protect complainants against victimisation. 67 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Protection for complainants against being dismissed from work in reaction to the lodging of a complaint was seen as a very challenging task by intermediaries in Belgium, especially when the defendant is a large, well-resourced company which can afford good lawyers and has a good standing vis-à-vis public institutions. Anonymous complaints, guaranteeing confidentiality of information and having a separate hearing for complainant and defendant were also seen as useful measures to protect the complainant against victimisation (Finland and Austria). In addition to the possibility of launching anonymous complaints, legal provisions allowing for the power of investigation (Czech Republic), the adequate application of the shift of the burden of proof (Czech Republic and Finland) and class action (France) were seen as supporting the equality bodies and intermediaries to protect complainants against victimisation more effectively. Settlement procedures were seen as an option for reducing the risk of victimisation (Austria and Belgium). The protection of witnesses was not so much of a focus for the representatives of equality bodies and intermediaries. However, one intermediary in Bulgaria stated that protecting witnesses against victimisation was even more difficult than protecting complainants. From the point of view of intermediaries, distrust in the legal and judicial system is another obstacle to lodging a complaint, especially for women, (undocumented) migrants, members of ethnic or religious minorities, lesbian, gay, bisexual and transgender (LGBT) people, poor and homeless people. Representatives of equality bodies, judicial / administrative institutions and of a broad range of intermediaries in almost all the eight Member States except for France identified mistrust in legislation, equality bodies or “similar entities”, public bodies in general and the judicial system as major barriers to lodging complaints. 5.1.3 Analysis Equality of arms, the shift of the burden of proof and appeal procedures are, indeed, and emerge from this research as, essential requirements of fair proceedings. A few complainants saw their opponents, the defendants, as much more powerful because of the resources available to them. Another aspect that seems to influence the complainants‟ perception of equality of arms is the attention paid to their individual cases of discrimination. It was seen as disadvantageous by the complainants when representatives of equality bodies, “similar entities” and judges did not give them enough space to tell their stories 68 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) and / or did not pay enough attention to their stories. Tribunal and promotion- type equality bodies seemed better equipped to meet these needs of the complainants than decision-makers in courts or in “similar entities”. Intermediaries, representatives of equality bodies and “similar entities” were mostly of the opinion that measures guaranteeing equality of arms were only in place to some extent, which means that there is room for improvement. Obliging the alleged perpetrator to provide all necessary documents and information as well as adequately applying the shift of the burden of proof are both measures that contribute to equality of arms. It emerges from the information gained by the fieldwork that judges do not always correctly apply the shift of the burden of proof. This has a negative effect on the quality of procedures. Bad quality procedures tend to result in bad outcomes and therefore impede access to justice. Very few complainants whose cases were challenged in appeal by the defendants were of the opinion that appeal procedures should not be possible in discrimination cases. The analysis of the data generated by the fieldwork shows that intermediaries, representatives of equality bodies and “similar entities” and, to a lesser extent, complainants interviewed identified equality of arms between the complainant and the (alleged) perpetrator as enhancing access to justice (Hypothesis 3). The inadequate application of the shift of the burden of proof especially by judges, which makes access to justice more difficult, was identified by representatives of equality bodies and intermediaries as a challenge (Hypothesis 4). The findings from the fieldwork in relation to appeal do not reveal strong opinions among respondents with regard to the question of whether appeal procedures are sufficiently available in discrimination cases (Hypothesis 5). (Fear of) victimisation and distrust in the justice system were raised both by complainants and the representatives of equality bodies and intermediaries as issues that influence the fairness of proceedings. Neither of these issues was included in the 20 working hypotheses (see Section 3.5) based on the literature review. Nevertheless, the fear of victimisation expressed by complainants, and the views of intermediaries and equality bodies that fear of victimisation is an important factor in the decision by a complainant to lodge a complaint, justify the conclusion that real or perceived fear of victimisation are compromising fair proceedings in cases of discrimination. 69 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Equality bodies and intermediaries identified specific groups which were more likely to be distrustful of the judicial system. The experiences of the complainants and the assessment by the equality bodies and intermediaries suggest that distrust of the justice system and of the possibility of fair proceedings is a barrier to accessing justice. 5.2 Timely resolution of disputes One of the hypotheses is that procedures in cases of discrimination are taking (too) long and complainants do not know how long they may have to wait for justice, which contributes to under-reporting (Hypothesis 6). All respondents were asked to assess the duration of procedures. The complainants‟ evaluation refers to the procedure they have gone through. Equality bodies and “similar entities” assessed the duration of their own proceedings but also those of other relevant dispute resolution bodies. Intermediaries gave informed estimates about the duration of proceedings of various dispute resolution bodies. 5.2.1 Experience and assessment of complainants relating to the duration of procedures About two thirds of the complainants provided information on the duration of the procedure they had gone through. On average the procedures had taken 17 months (see Table A-4.19). Most of these complainants (45%) had to wait less than a year before a final result was achieved (see Table A-4.20). About 40% navigated the system in between two and three years; 15% had to wait for the final outcome for more than three years. In most cases, the procedure took longer when complainants had taken their case to more than one dispute resolution body (see Table A-4.21). When looking at the different stages of the procedure, the following pattern of duration can be discerned (see Table A-4.19). From lodging a formal complaint to the start of the procedure took about four months on average, another nine months passed between the start of the procedure and the first hearing and four more months went by before a final decision was reached after the first hearing. However, it is difficult to assess the duration of procedures for all the various categories of dispute resolution bodies involved. Some of them only cover between one and four cases, which is too low a number to be included in the analysis. The duration of procedures ranged from about 12 months, when predominantly tribunal-type equality bodies or “similar entities” were involved, to more than 24 months, when promotion-type equality bodies and courts were responsible for the proceedings (see Table A-4.21). Complainants who had solely taken their case to promotion-type equality had to wait for the final 70 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) outcome of their case for 16 months; courts delivered their final decision after 18 months. The average duration of procedures in the eight Member States reviewed ranges from about a year in Italy, Belgium, Bulgaria and Austria to about 18 months in the United Kingdom, the Czech Republic and Finland (see Table A- 4.22). In France complainants had to wait for almost 36 months for the closure of their case. The excessive length of the procedures in France compared to the other seven Member States might be explained by two factors. On the one hand, more than one dispute resolution body is more often involved in dealing with one case of discrimination than in the other Member States. On the other hand, if more than one body was part of the procedure the duration of the procedure was longer than in the other Member States involving a comparable number of bodies. In Austria the duration of proceedings ranged from two months for settlements conducted by an administrative / judicial institution to almost one year for court proceedings. In the Czech Republic, the complainants who had taken their cases to court had to go through proceedings lasting on average 31 months. In Finland the complainants underwent a long procedure (54 months) when they took their case to a promotion-type equality body as well as a tribunal-type equality body and these procedures took longer than comparable ones in Austria. In Finland, courts as sole dispute resolution bodies and promotion-type equality bodies as sole complaints bodies were close to the average duration of these procedures in other Member States, at about 18 and 16 months respectively. In the United Kingdom the complaints which were initially taken to a promotion- type body and then subsequently to an administrative / judicial institution took less time than in comparable cases in France. On the other hand, the involvement of a promotion-type body and a court in the United Kingdom took a little longer than in Italy and Belgium. Finally, “similar entities” addressed as sole bodies in the United Kingdom were much faster than in France. The duration of procedures was an issue of which complainants were well aware. It was quite often referred to in answers to open questions regarding the quality of procedures. The complainants most often identified the duration of procedures as a weakness in relation to the quality of the procedures – most often in connection with court procedures, followed by promotion-type equality bodies and “similar entities”. There were a small number of complainants in Finland, France and Italy which mentioned quick procedures by promotion or tribunal-type equality bodies as an asset of these institutions. 71 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 5.2.2 Views of equality bodies, “similar entities” and intermediaries on the duration of procedures When asked, only half of the respondents in the group of representatives of equality bodies and half of the respondents in the group of intermediaries provided information on the average duration of proceedings in their respective working and national contexts. The reasons given were that the duration of the procedure depended on the complexity of the case, on which point of entry into the broader system of access to justice had been chosen and on how many dispute resolution bodies had been involved, as well as on appeal procedures. The duration of procedures was identified by both representatives of equality bodies (Austria, Belgium, Finland and the United Kingdom) and intermediaries (Belgium, the Czech Republic, Finland, France and Italy) as a factor influencing the willingness of complainants to take their case to a dispute resolution body, the quality of the legal advice and assistance given, the quality of the procedures and the outcome. It is rather difficult to compare the duration of procedures of predominantly promotion-type bodies with each other, since the information from the interviews with representatives from promotion-type bodies does not specify whether their estimates included only the length of procedure before their own body or included procedures before a dispute resolution body as well (see Table A- 4.23). Predominantly tribunal-type bodies indicated ten months for the average duration of their own proceedings. Some representatives of equality bodies and intermediaries stressed the importance of informing the complainant right at the beginning of the procedure about the likely duration, no matter whether these are procedures before their own institution or court. Many saw the duration of proceedings as an obstacle to good quality procedures. Moreover, not knowing the length of procedures might lead to disappointment during the procedures and negatively affect the motivation of a complainant to continue the case. According to a lawyer in the Czech Republic, the long duration of procedures has a negative impact on the willingness of complainants to actively involve themselves in the case. A similar view was expressed by a representative of a victim support organisation in Finland who said that complainants might give up before they achieve an outcome if the case drags on for too long. On the other hand, one of the lawyers in France saw the duration of procedures as symbolic, as it helped the complainant to come to terms with the discrimination experienced. 5.2.3 Analysis 72 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The duration of procedures is an issue which was mentioned by more than a quarter of complainants as a weak point of the procedures they have experienced. Most often courts, promotion-type equality bodies and “similar entities” were seen as being comparatively slow. Some representatives of equality bodies, and more in the case of intermediaries, assessed the duration of procedures as an obstacle to good quality procedures. These representatives took the duration of procedures as an important criterion determining the quality of procedures. Some equality bodies and some isolated intermediaries pointed out that it was important to inform complainants about the possible duration of proceedings right at the beginning of a procedure. They have experienced complainants giving up their case because they no longer wanted to put up with the insecurity of the duration of the procedure. This insecurity prevents cases lodged from being turned into decisions and contributes to under-reporting as assumed in Hypothesis 6. 5.3 Effective remedy or redress This section on effective remedy and redress examines the outcomes desired by complainants, follow-up procedures undertaken by equality bodies and compensation payments. It analyses which of the remedies available in discrimination cases are most appreciated by complainants, whether the procedures chosen by the complainants match the achievements they desire from lodging a complaint and whether there are differences in the satisfaction of complainants in relation to binding or non-binding decisions of dispute resolution bodies. In a second step, measures are examined which have been taken by equality bodies and intermediaries to assess whether the remedies and redress which have been achieved are effective. Furthermore, assessment is made of their opinions on whether the sanctions available and compensations ordered are dissuasive and effective. This section relates to the following hypotheses from Section 3.5. - Hypothesis 7: The range of remedies available in discrimination cases does not include sufficient remedies that reflect the aspirations of complainants. - Hypothesis 8: The sanctions available and the compensations ordered are too low in cases of discrimination to be dissuasive and effective. - Hypothesis 9: Giving equality bodies the power to make legally binding decisions, as other administrative and judicial institutions already have, enhances the effectiveness of remedies. Most of the cases of the complainants interviewed resulted in a decision by a court (24%), a formal or an informal settlement (22%) or a decision by a 73 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) tribunal-type equality body (18%) (see Table 4). Formal or informal settlements were, logically, most often achieved through predominantly promotion-type bodies and “similar entities”, but in a few cases also through courts. Promotion- type equality bodies and “similar entities” achieved a conclusion of the case in about 10% of the cases. For 15% of the complainants no outcome had been achieved at the time the interview was conducted, as the procedures before the first dispute resolution body invoked were still ongoing or appeal procedures were still pending. Three per cent of the complainants complained that no outcome had been achieved at all, because the complaint had to be discontinued e.g. due to withdrawal of (financial) support by the equality body or because it was dropped by a court or administrative / judicial institution. All these last cases which did not result in any outcome had initially been dealt with by promotion-type bodies. Table 4 – Outcomes of the complaints lodged (N = 213) Outcome Frequencies Valid% decision by a court 50 23.5 formal / informal settlement 46 21.6 decision by a tribunal-type equality body 39 18.3 no outcome yet 32 15.0 conclusion by an administrative / judicial institution 20 9.4 intervention and conclusion by a promotion-type equality body 20 9.4 no outcome at all 6 2.8 Total 213 100.0 5.3.1 Experience and assessment of complainants regarding remedies and redress Looking at effective remedies from the perspective of complainants requires linking their expectations and what they sought to achieve with their satisfaction with the outcome of their cases. The four most important goals identified by the complainants were: - terminating discrimination (20%), which included, among other things, removal of barriers and re-integration into the complainant‟s former working environment; - recognition of discrimination (16%); - achieving a favourable change in the situation of the complainant (14%); - prevention of discrimination to protect others in the future (11%). Complainants who wanted to end discrimination in most of the cases received a decision from a tribunal-type equality body, arrived at a formal or an informal settlement or received a judgment from a court. Complainants wanting to achieve recognition of discrimination most often ended up with a decision by a court or a tribunal-type equality body. When a change of situation was desired the case most often resulted in a formal or an informal dispute resolution, a final decision by a court or an intervention by a promotion-type equality body. 74 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Monetary compensation played a less important role (8%) compared to the desire for a restitution of the original situation before discrimination occurred. Even less important were an apology by the discriminator (3%) or the punishment of a discriminator (1%) (see Table 5). Not surprisingly, courts were the dispute resolution bodies which best matched the desire for monetary compensation, but quite a few of the complainants who wanted to achieve monetary compensation ended up with formal or informal settlements. Complainants seeking an apology most often received a decision by a court rather than an apology. Table 5 – Outcome sought by complainants in lodging a complaint The complainant wanted… Count % of respondents (N = 465) % of cases (N = 212) discrimination to be stopped 88 18.9 41.5 recognition of discrimination 73 15.7 34.4 a change in their situation 65 14.0 30.7 prevention of discrimination in order to protect others in the future 55 11.8 25.9 justice 45 9.7 21.2 monetary compensation 37 8.0 17.5 equal rights / treatment 25 5.4 11.8 more awareness of discrimination 24 5.2 11.3 an apology 14 3.0 6.6 encouragement of others to lodge a complaint (role model) 10 2.2 4.7 public / media attention 6 1.3 2.8 moral satisfaction 4 0.9 1.9 punishment of the discriminator 5 1.1 2.4 others to realise that there is an institution dealing with cases of discrimination 2 0.4 0.9 Other 12 2.6 5.7 Total 465 100.0 219.3 More than half of the complainants interviewed were of the opinion that they had been able almost or fully to realise the achievements desired at the outset of lodging a complaint; about 20% saw their desires only partly realised and 25% did not see them achieved at all (see Table A-4.26). On average the complainants were of the opinion that compensation was rarely awarded to them and that discrimination was seldom discontinued (see Table A-4.27). For 17% of the complainants the situation changed for the better, for 6% of the complainants the situation changed for the worse. There is a clear link between satisfaction with the outcome and the extent to which the complainants were awarded compensation, their situation changed for the better and discrimination was discontinued after the case had been closed 75 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Complainants were most often awarded compensation payments when their case had been decided by a court or had been concluded by an administrative / judicial institution. Tribunal-type equality bodies only rarely award any compensation payments (see Table A-4.28). Decisions by courts were most likely to lead to the discontinuation of discrimination. Formal or informal settlement procedures resulted less often in discrimination stopping than court decisions. Decisions by tribunal-type bodies least often led to the discontinuation of discrimination (see Table A-4.29). Reasons for not being satisfied with the outcome of the procedures were quite diverse, but were mostly linked to the original aims of the complainants (see Table A-4.30). Most often complainants would have preferred a binding decision rather than an opinion or recommendation, as the latter two are not enforceable and rarely lead to the termination of discrimination or a change in the situation. Some complainants insisted on getting recognition of discrimination from those responsible for the unequal treatment. Others would have been happier if the appeal they had lodged were not still pending. A few complainants would have been in favour of (higher) material or non-material compensation payments. Defendants who had lodged an appeal that was still pending were also a cause of dissatisfaction for complainants. A few complainants who went through proceedings before a tribunal-type equality body or through ADR proceedings would have preferred to have a procedure in court 5.3.2 Views of equality bodies, “similar entities” and intermediaries on remedies and redress Whether or not remedies or redress are effective can only be assessed if there are adequate follow-up procedures in place. Such procedures first of all entail finding out whether the complainant is satisfied with what has been achieved and what can be learned from the case for future proceedings. About 60% of the representatives of equality bodies in the eight Member States reviewed said that they engaged in follow-up procedures, especially tribunal-type bodies (see Table A-4.31). More of the equality bodies took steps to monitor the action taken by the defendant after the case had been concluded than to monitor the situation of the complainant (see Table A-4.32 and Table A-4.33). The representatives interviewed were hesitant about specifying a timeframe within which they conducted the follow-up procedures, as conducting a follow-up procedure very much depended on the outcome of the case. Follow-up procedures do not seem to be part of the legal provisions or the mandates of the equality bodies. A few bodies said that they only did a follow- up when it was explicitly included in a settlement agreement or a decision / opinion (Austria, France, Italy and the United Kingdom) or when strategic cases were concerned (Czech Republic). The tribunal-type equality body in Bulgaria and the promotion-type equality body in Scotland said that they would call on 76 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) employers or even visit their premises in order to check on them. In Austria, representatives of the promotion-type equality body identified as challenging the integration of structural measures, which could then be followed-up on, into settlement agreements, as such a step might have negative effects on the possible inclusion of compensation payments. Only about a quarter of the intermediaries shared the view of the equality bodies that there were follow-up procedures in place (see Table A-4.34). Victim support organisations and NGOs tended to think that such procedures were in place more often than (specialised) lawyers and trade unions. Slightly more intermediaries looked into whether defendants changed their practices than into the situation of complainants after closure of the cases (see Table A-4.35 and Table A-4.36). Representatives of equality bodies and “similar entities” only rarely referred to compensation payments. Intermediaries more often talked about challenges with regard to compensation payments. They tended to be of the opinion that the level of compensation awarded was a quantitative criterion in determining the quality of the outcome of a procedure (Austria, Bulgaria, France and Italy). Intermediaries said that compensation payments were too low and therefore not dissuasive in Austria, Finland and Italy. A representative of an NGO supporting people with disabilities in Austria stated that compensation payments were not an adequate remedy when the complainant wished to achieve the removal of barriers, as compensation payments did not contribute to achieving the removal of barriers. In Italy and Bulgaria intermediaries disapproved of the fact that equality bodies did not have the mandate to award compensation. In the United Kingdom the limited powers of “similar entities” to enforce payment of compensation was seen as disadvantageous, as it was often the responsibility of the complainant to monitor the transfer of the payment. In Austria an intermediary suggested introducing criteria for the courts for determining adequate levels of compensation; in Italy a representative of an NGO proposed that the equality body should be able to issue administrative sanctions and a legal expert suggested the introduction of punitive damages. 5.3.3 Analysis The outcomes most often desired by the complainants were (in order of frequency of mentioning): a) termination of discrimination; b) recognition of discrimination ; c) achieving a favourable change in the situation of the complainant; d) prevention of discrimination to protect others in the future.. 77 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The complainants wanting to achieve discontinuation of discrimination and recognition of discrimination most often received a decision from a tribunal-type equality body or a court. Those who sought a favourable change in their situation had most often taken their cases to a court or a promotion-type equality body. Formal or informal settlement procedures were often conducted when complainants wanted to achieve discontinuation of discrimination or a favourable change to their situation. Monetary compensation played a less important role compared to the other four outcomes sought, but was most often achieved via court proceedings or formal or informal settlements. Only about half of the complainants were satisfied with the conclusions or outcomes of their cases, because the range of remedies available did not reflect their aspirations. This was due to fact that the dispute resolution body they had invoked could not or did not terminate discrimination, recognise discrimination, achieve a favourable change in the situation of the complainant or award compensation payments (see Hypothesis 7). Equality bodies and intermediaries could only assess whether remedies and redress are effective when they engage in follow-up procedures to evaluate whether the compensation payments have been transferred to the complainant and whether the suggested remedies have been implemented and the behaviour or practice of the defendant has changed. However, follow-up procedures do not seem to be part of the mandate of equality bodies and are therefore not regularly implemented – only under specific pre-conditions and circumstances. Limited powers of tribunal-type equality bodies and “similar entities” – especially as regards the awarding of compensation payments, the awarding of too low compensation payments and the lack of the possibility of enforcing compensation payments – were primarily identified as drawbacks by the intermediaries. Compensation payments may not always be the adequate remedy, especially when complainants are seeking to remove barriers, but they could play an important preventive role if they were adequately dissuasive. However, sometimes compensation payments, when awarded during settlement procedures, were deemed to be an obstacle in taking a case to its final conclusion. This is because complainants would sometimes agree to compensation payments instead of achieving a decision or judgment which would result in a precedent and might change not only the situation of the complainant for the better but also motivate others who have experienced discrimination to lodge a complaint. Representatives of equality bodies and intermediaries raised some aspects as challenges to the efficiency and effectiveness of remedies, which can be linked to Hypotheses 7, 8 and 9. In their view compensation is sometimes too low 78 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) (Hypothesis 8) and the range of remedies available does not always reflect the aspirations of complainants (Hypothesis 7). However, in order to determine whether sanctions and compensations are dissuasive and effective (Hypothesis 8), equality bodies would have to monitor in follow-up procedures the behaviour and practices of the convicted / sanctioned discriminators in a systematic way. The limited powers of equality bodies, especially as regards the issuing of non-binding decisions, was seen as a drawback in enhancing the effectiveness of remedies by complainants, representatives of equality bodies and intermediaries (Hypothesis 9). 5.4 Efficiency and effectiveness of procedures The efficiency and effectiveness of procedures is influenced by innovative procedures, ADR and the power, resources and independence of equality bodies. This section relates to the following hypotheses from Section 3.5: - Hypothesis 10: Innovative procedures applied by equality bodies and administrative and judicial institutions in cases of discrimination enhance the efficiency and effectiveness of procedures. - Hypothesis 11: The availability of ADR procedures has a positive effect on the efficiency and effectiveness of procedures. - Hypothesis 12: The lack of powers, resources and limitations of independence of equality bodies undermines the efficiency and effectiveness of their procedures 5.4.1 Experience and assessment of complainants relating to the outcomes of procedures The majority of the complainants (about 60%) were either „very content‟ or „mostly content‟ with the procedures they had gone through. About one quarter was „not entirely content‟ or „not at all content‟ and about 16% of the complainants did not want to answer the question about whether they had been satisfied with the proceedings (see Table A-4.6). When linking the satisfaction of the complainants to the procedures they had undergone (see Table A-4.7), some trends are visible. Complainants were most content with procedures before predominantly tribunal-type equality bodies, followed by predominantly promotion-type equality bodies and by procedures involving promotion-type equality bodies and courts or “similar entities”. Complainants were least content with procedures solely carried out by “similar entities”. Almost 75% of the complainants said that the outcome they had achieved was in their favour (see Table A-4.37). The decisions arrived at by courts, formal or 79 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) informal settlement procedures and interventions by promotion-type equality bodies most often resulted in favourable outcomes for the complainants (see Table A-4.41). Almost 90% of the formal or informal settlements were in favour of the complainants, as well as about 80% of the interventions by promotion- type equality bodies and of the decisions by courts. Tribunal-type equality bodies and “similar entities” more seldom arrived at positive outcomes for the complainants interviewed in comparison to courts and promotion-type equality bodies. Complainants sometimes had the feeling that the counsellors and caseworkers did not have enough time to attend to their case. They could not get hold of them on the phone and / or they could not be contacted in person. Some of the delays and long duration of the procedures was attributed to the lack of time resources of counsellors, caseworkers and lawyers. These issues were most often mentioned by complainants in Belgium, France and the United Kingdom. Counsellors of promotion-type equality bodies, commissioners of tribunal-type equality bodies and judges in courts play a decisive role in the outcome of the procedures. The complainants interviewed had a high opinion of these professionals (see Table A-4.44). The best ratings regarding their expertise, their independence, the attention they paid to the case and their empathy were achieved by representatives of promotion-type equality bodies and those involved in settlement procedures. Professionals of an administrative / judicial institution in Austria, which conducts settlement procedures, were explicitly described as supportive, prepared and solution-oriented, categories not given in the questionnaire but arrived at by the complainants themselves. Judges were assessed in a slightly less favourable way but were still largely appreciated. Complainants interviewed listed both further positive and negative characteristics in addition to those given in the questionnaire. Judges were positively assessed as professional, persuasive, reliable, having a good attitude and being impartial. Being insensitive, prejudiced, indecisive, distant and unpleasant were the negative characteristics of judges actively listed by the complainants interviewed. The three variables – satisfaction with legal assistance or advice received, satisfaction with the procedure and satisfaction with the outcome of the case – show a statistically significant link. Good legal assistance or advice obviously has a positive relationship with a more positive assessment of the procedure and outcome. Furthermore, it is not surprising that the more the complainant was satisfied with the procedure the greater the complainant‟s appreciation of the outcome. The complainant‟s readiness to lodge a formal complaint again (see Table A- 4.46) tended to be determined by their satisfaction with the assistance they had received than with what kind of dispute resolution body they had approached. 80 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Those who were least content with the procedure and the outcome would obviously rather refrain from complaining in the future if they experienced discrimination again. Formal or informal settlements were important in the interviews conducted with non-complainants in the United Kingdom. Three of them arrived at an informal settlement without directly involving any dispute resolution body. However, the complainants did engage lawyers. One of these settlements resulted in changes not only affecting the shop where the complainant had experienced discrimination, but also in other shops, and their participation in the national programme on disability etiquette and awareness-raising was agreed on. Another settlement was achieved, because the complainant no longer wanted to continue with the stressful proceedings in court. The issue of independence as a variable influencing the quality of outcomes of a procedure was only mentioned by a few complainants. Most of them were located in Bulgaria, with one located in each of the following Member States: Finland, France and the United Kingdom. 5.4.2 Views of equality bodies, “similar entities” and intermediaries on outcomes of procedures The views of the equality bodies on the quality of procedures reflect the procedures within their bodies, but also their experience with procedures before other dispute resolution bodies. Data from the interviews with the intermediaries display their perceptions of the quality of procedures conducted by different complaints and dispute resolution bodies. A majority (almost 70%) of intermediaries and promotion-type equality bodies or “similar entities” (about 60%) were of the opinion that more than 50% of the cases processed by them were likely to be decided in favour of the complainants. The majority of representatives of tribunal-type bodies saw the success rate of complainants as ranging between 21% and 50%. Representatives of equality bodies and “similar entities” in all the eight Member States were of the opinion that the skills and competences of the equality bodies as well as the knowledge and willingness of the judges to apply equal treatment legislation were essential in determining the outcome of a case. Intermediaries in all eight Member States shared the view with representatives of equality bodies and “similar entities” that judges lacked knowledge regarding equal treatment legislation and were therefore not aware of specificities of discrimination cases. Insensitivity on the part of judges was mentioned by a mix of representatives of equality bodies and intermediaries in Austria, Belgium, the Czech Republic, France and the United Kingdom. 81 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Sometimes court decisions were said not only to be influenced by the negative attitude of judges towards victims of discrimination but also by socio-political and budgetary considerations. Representatives of equality bodies and intermediaries in almost all the eight Member States were of the opinion that resources within their own bodies or organisations, but also in courts or “similar entities”, do not suffice to achieve good quality outcomes. A more strategic choice of cases was mentioned by representatives of equality bodies in the Czech Republic, Finland, Italy, the United Kingdom and by an intermediary in Bulgaria as a factor that could contribute to enhancing the quality of outcomes. However, there were intermediaries in the Czech Republic, France and Italy who shared the opinion that too few cases are taken to court in order to establish precedents. Professionals involved in ADR or mediators were not systematically included in the fieldwork due to a lack of criteria for who would fit into these categories. Only some intermediaries talked about ADR as an advantageous mechanism in specific contexts. Gaps in legislation were identified as rendering equality bodies less powerful and therefore less effective by representatives of equality bodies, “similar entities” and intermediaries in all the eight Member States reviewed. The following powers were identified as partly lacking: - the power of enquiry which would support complainants in collecting evidence; - the power to start investigations on their own initiative; - the power to oblige defendants to provide information and cooperate; - the power of taking a case to court. Gathering evidence to prove discrimination was an issue that was more often brought up by intermediaries than by representatives of equality bodies and “similar entities” in connection with the quality of the outcome of proceedings. The lack of powers for bodies to issue binding decisions was identified as a barrier to good quality outcomes by intermediaries. When decisions are not enforceable, defendants cannot be obliged to comply with the decisions and therefore decisions that are not enforceable lessen the quality of outcomes. 5.4.3 Analysis A majority of complainants stated that the outcome of the procedures was in their favour. A favourable outcome was achieved most often in the courts, formal or informal settlement procedures and interventions of promotion-type equality bodies. This view was largely shared by representatives of promotion- type equality bodies and “similar entities”. Representatives of tribunal-type 82 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) equality bodies estimated their success rate as being somewhat below the other dispute resolution bodies, as was also suggested by the complainants. The data generated by the interviews with the complainants show that resources available to case workers and counsellors in promotion-type bodies and the quality of the legal advice and assistance provided by intermediaries were of great importance for the complainants‟ satisfaction with the outcome. Representatives of equality bodies and “similar entities” added a further dimension relevant to determining the quality of the outcome of cases – namely, that the knowledge, skills and values of judges, counsellors in promotion-type equality bodies and commissioners in tribunal-type equality bodies and “similar entities” seem to play a quite decisive role in the effectiveness and efficiency of procedures. This is a new aspect highlighted by the fieldwork which has not been taken into account in the working hypotheses presented in Section 3.5. Representatives of equality bodies and intermediaries identified a strategic choice of cases as a measure contributing to improving the efficiency and effectiveness of procedures and guaranteeing better quality outcomes. On the other hand, there were intermediaries who saw this selection of cases less favourably, as it resulted in fewer cases and therefore in fewer outcomes. The fieldwork yielded too little information on ADR to draw any conclusions on it. Hence it can only be concluded, as suggested by the literature review, that alternative dispute resolution may be an important element for enhancing the effectiveness and efficiency of procedures (Hypothesis 11). Representatives of equality bodies and intermediaries were of the opinion that equality bodies were not adequately equipped with powers to collect evidence, to oblige defendants to provide information and to be cooperative during proceedings, to take cases to court and to issue binding opinions / decisions. Furthermore, a lack of resources was identified as reducing the capacity and impact of the equality bodies. The same was said to apply to other dispute resolution bodies, as they were also seen as not being adequately equipped with resources. The lack of powers and resources was highlighted as undermining the efficiency and effectiveness of procedures (Hypothesis 12). 83 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 6 SUPPORT IN CASES OF DISCRIMINATION This chapter on support in cases of discrimination deals with four elements: legal advice and assistance, emotional, personal and moral support, awareness of rights and accommodation of diversity. The following hypotheses set the framework for analysing the fieldwork data on support in cases of discrimination: - Hypothesis 13: Legal aid and assistance are critical for complainants to navigate complex institutional systems and to achieve successful outcomes in cases of discrimination. - Hypothesis 14: Emotional and personal support are important in motivating and sustaining the complainant in cases of discrimination. - Hypothesis 15: Low levels of awareness of rights under equal treatment legislation and of how to exercise these rights is a critical barrier for access to justice in cases of discrimination. - Hypothesis 16: Levels of awareness of rights differ for different groups covered by equal treatment legislation. - Hypothesis 17: Equality bodies and other administrative and judicial institutions show little awareness and concrete action regarding accommodation of diversity in procedures and support for the different grounds of discrimination and / or for different groups. The responses to the questionnaires were analysed with regard to the question about to what extent complainants have access to these four elements and how content they were with the quality of the different kinds of support they had utilised. The data taken from the interviews with the equality bodies, “similar entities” and intermediaries shed light on the range of different kinds of support they offer to complainants. Furthermore, equality bodies and “similar entities” assess the quality of the support they offer. Intermediaries share their views on how they rate their own services but also those offered by equality bodies, “similar entities” and other intermediaries. 6.1 Legal advice and assistance This section is about the availability and quality of legal advice and assistance. 61 Legal advice and assistance is offered by a broad range of institutions and organisations – primarily including promotion-type equality bodies and different kinds of intermediaries. 61 See Section 2.3 and the glossary (annex) for definition of legal aid / legal advice and assistance. 84 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The section starts out by examining the views of complainants on how easy or difficult it was for them to gain access to legal advice and assistance, what obstacles they met and to what extent legal advice and assistance contributed to making navigation of the complex institutional system easier and to achieving successful outcomes in cases of discrimination (Hypothesis 13). The information from the interviews with the complainants was compared with the views given by representatives of equality bodies, judicial / administrative institutions and intermediaries on the availability and accessibility of the legal advice (and assistance) they offer as well as on the evaluation of the quality of this kind of support. 6.1.1 Experience and assessment of complainants of legal advice and assistance About 75% of the complainants took advantage of some kind of legal advice or assistance; 13% said that they had not received any legal support. More than 80% of the support was provided by professionals, including lawyers (46%), equality bodies (28%) and intermediaries (8%) (see Table A-4.49). The equality bodies which provided legal advice and assistance were predominantly promotion-type equality bodies, only in Bulgaria did the tribunal-type equality body offered this service to complainants. Among the complainants interviewed the three most important sources of information on where to get legal support were intermediaries (19%), the complainant‟s own research or initiative (17%) and the complainant‟s personal networks (13%) (see Table A-4.52). Individual research together with personal networks were among the most frequently mentioned ways of finding legal support in Austria and Bulgaria and intermediaries were most often named as valuable sources in Italy. Another source of information that was mentioned was organisations or lawyers the complainant was familiar with. About 10% of the complainants received support in finding legal advice from a relative or friend, the equality body or the trade union or an employee representative. In the United Kingdom the equality body played the central role in passing on information about where to look for legal advice and assistance; employee representatives and trade unions played this role in Finland, France and Italy. About one third of the complainants had called on and received the services of legal experts before they lodged a complaint (see Table A-4.54). This approach suggests that the system of justice is difficult to access and navigate without legal support. Twenty per cent of the complainants had legal advice at the time when they lodged a complaint and this was down to 14% after the institution where the complaint was lodged agreed to proceed. Another 13% of the complainants received legal support before and 10% at the hearing. 85 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Complainants were asked an open question about the character of the legal advice they had received. In this context only one complainant referred to any specific kind of legal support after an outcome had been achieved (see Table A- 4.55), although about 10% said that they had utilised legal advice when the decision was handed down or sent to them (see Table A-4.54). About three quarters of the complainants who had received legal support said that it had been free of charge (see Table A-4.53). The remaining complainants had to pay. About 40% of those who had to pay either had to cover the costs themselves or were partly or fully compensated. Only two of the total number of complainants mentioned that the costs had been covered by their legal expenses insurance (see Table A-4.54). In Belgium, Bulgaria and the Czech Republic more than 90% of the complainants interviewed got legal support free of charge; in Finland and France the share of those not having access to free support was much higher than in the other Member States of the sample. Meanwhile, in Finland none of the complainants had to cover the costs themselves. In France, on the contrary, the costs were only covered in about 50% of cases. Of the 13% of complainants who did not receive any legal support, most provided information on why they did not seek legal advice. Some of them thought it not necessary to have legal advice for what they wanted to achieve (they had all taken their case to a promotion-type equality body). Others had either been able to obtain enough information or had legal knowledge or enough experience with procedures / lodging a complaint themselves or did not want anybody else to take their case, as they felt so strongly that it was their case. Almost two thirds of the complainants received legal assistance during the proceedings (see Table A-4.59). Complainants were represented in almost all the cases which were taken to court, in 80% of the cases which were concluded by an administrative or judicial institution and in almost 60% of the procedures resulting in a formal or informal settlement (see Table A-4.59). People who had lodged a complaint with a predominantly promotion (26%) or tribunal-type (39%) equality body took advantage of representation less often. About two thirds of the complainants who decided or were recommended to have a representative were accompanied by lawyer(s), 16% by an intermediary, and roughly 10% by a representative of the equality body or the trade union (see Table A-4.60). Lawyer(s) played a leading role in procedures before “similar entities”, in courts and before tribunal-type equality bodies, especially in Bulgaria. They were even quite important in formal or informal settlement procedures. However, representatives of equality bodies most often functioned as representatives during this kind of procedure. 86 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The choice of these representatives was in a quarter of the cases undertaken by an intermediary (a strategy most popular in Italy and the Czech Republic) and in almost 20% of the cases by representatives of equality bodies (which selection procedure was often referred to in the United Kingdom (see Table A- 4.61)). Personal resources in terms of knowing where to seek representation as well as personal networks also influenced the decision about who to select as a representative. Most often, complainants in Austria and France relied on their personal experience and knowledge. The complainants were very content with the legal advice and assistance they had received: 70% were „very content‟ and a little more than 20% „mostly content‟ (see Table A-4.50). This response is confirmed by more than 90% of complainants who would recommend the legal advice and assistance they had received to a friend who had experienced discrimination (see Table A-4.51). Three quarters of the complainants answered the question about what kind of legal advice and assistance they had received. Roughly one fifth of the answers dealt with the initial phase of lodging a complaint – namely, the period before the complainant decided whether and where to lodge a complaint (see Table A- 4.55). The legal advice received encompassed explanations and identification of alternatives for lodging a complaint, explanation of the mandate of the equality bodies and of possible outcomes from the complaint, as well as information on mediation. Furthermore, the legal advice resulted in determining the legal situation as regards the individual case as well as in determining what the complainant wanted to achieve. Another focus of this initial phase is information about where to lodge a complaint, how to lodge it, what it should contain and what the subsequent steps in the procedure are. The complainants described receiving the information they needed, good explanations of legal jargon, as well as of the overall system of access to justice, and an outline of risks and what might happen during a procedure as being especially helpful during the initial phase of launching a complaint (see Table A-4.56). Dissatisfaction among the complainants almost exclusively focused on the use of technical terms and legal jargon by counsellors and lawyers and failure to support the complainant in better understanding the legal situation, the different options in procedures and the possible consequences of lodging a claim (see Table A-4.57). This slight dissatisfaction about not having received enough information about the procedures might result from the fact that one third of the complainants had to find information about the procedures themselves (see Table A-4.58). Equality bodies (33%), lawyers (23%) and intermediaries (13%) were quite important sources of information about the procedures. 87 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) About one third of the responses on legal advice and assistance focused on the preparation of the case. This includes legal advice on filling in forms, preparing documents, looking for case law, providing legal arguments, giving guidance on how to document the case and collect evidence and explaining the procedures in more detail to the complainants (see Table A-4.55). Good advice on collecting evidence, the provision of well-drafted claims and other documents, as well as good advice on what to expect, how to behave and what to do before a court, specialised tribunal or tribunal-type equality body were lauded as strong points of legal advice and assistance when preparing a case (see Table A- 4.56). Complainants identified the lack of suggestions by those giving legal support on how to stop or prevent discrimination in the future as a weak point (see Table A- 4.57). This might relate to the estimation of the complainants that some of the counsellors or lawyers were not experts in discrimination cases. About one quarter of the responses on legal advice and assistance focused on support during various stages of different kinds of procedures. This legal advice and assistance included the planning for the procedure and accompaniment through the proceedings. This involves support in arranging and taking part in a mediation procedure and representation or accompaniment during other kinds of proceedings (see Table A-4.55). Another aspect of legal assistance during the procedure was the regular assessment of the proceedings and a decision on the further steps to be taken. Complainants reported good support during the procedure and well-founded legal arguments as strong points of legal assistance especially provided by lawyers (see Table A-4.56). The complainants generally had a relatively high opinion of the expertise, the attention paid to the case, the independence and the clarity of the communication from the people who represented them (see Table A-4.62). Other important characteristics the complainants associated with representatives, without having been provided with model answers, were humanity, proficiency, efficiency and proactivity. It was positively noted when representatives were supportive, combative, challenging, sensitive towards particular needs (for example deaf-aware, which means that the representative was aware that the complainant needed a sign language interpreter / lip reader and could not use the phone as a channel of communication), developed good strategies, kept the complainant well informed or allowed the complainant to get involved. Complainants explicitly noted the knowledge and experience of the representatives around discrimination, as well as in relation to procedural issues, and their empathy as strong points of the legal advice they had received (see Table A-4.56). When these two assets were missing, it was mentioned as a drawback (see Table A-4.57). 88 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Easy accessibility and availability of counsellors, caseworkers and lawyers throughout the whole procedure were identified as strong points of legal support for about 10% of the responses (see Table A-4.56). These professionals should have enough time for the complainants, be reachable on the phone or even have time for face-to-face meetings, keep in touch with the complainant, as well as provide concrete answers and explanations. Almost 40% of the responses referring to weak points of legal support focused on accessibility and availability (see Table A-4.57). This observation should be noted in relation to the lack of resources experienced by equality bodies and intermediaries, which have been mentioned not only by the complainants but also by the representatives of equality bodies and intermediaries (see 5.4 Efficiency and effectiveness of procedures). 6.1.2 Views of equality bodies, “similar entities” and intermediaries on legal aid and assistance Almost all promotion-type equality bodies provide legal advice and assistance themselves. The exception is the equality body in France which only provides information and not legal advice (see Table A-4.63). Almost 25% of the intermediaries interviewed do not offer any legal advice but just information (primarily NGOs and victim support organisations) (see Table A-4.64). The equality body in Bulgaria is the only tribunal-type equality body in the eight Member States reviewed which provides legal advice. Promotion-type equality bodies and almost all intermediaries providing legal advice have a broad range of clients beyond (potential) complainants (see Table A-4.65 and Table A-4.66). Among these clients are NGOs supporting victims of discrimination as well as relatives of complainants. NGOs are quite often supported by (specialised) lawyers; relatives of complainants more frequently by promotion-type equality bodies, NGOs and victims support organisations. Potential discriminators are also regular clients of equality bodies and intermediaries. Witnesses less often enjoy the support of promotion-type equality bodies and intermediaries, even less so from (specialised) lawyers. Equality bodies also offer their legal advice to public authorities and lawyers. More than half of the equality bodies and a little more than 40% of the intermediaries said that each year over 75% of the overall complainants who had approached them ended up making use of the legal advice and assistance offered by them (see Table A-4.67 and Table A-4.68). Quite a few predominantly promotion-type equality bodies refer complainants to NGOs, while fewer refer complainants to (specialised) lawyers. Tribunal-type equality bodies only sometimes refer complainants to NGOs or lawyers (see Table A-4.63). A number of intermediaries see giving legal advice to (potential) complainants as part of their strategy to target those alleging discrimination (see 89 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Table A-4.64). Almost all the (specialised) lawyers provide legal advice and assistance themselves. Many victim support organisations, trade unions and social partner organisations, as well as NGOs, also offer these kinds of services. The costs of legal advice were an important subject of discussion for the (specialised) lawyers interviewed. Many of the complainants lack financial resources and would therefore not be able to cover the costs of legal advice or assistance. Those equality bodies, trade unions, NGOs and victim support organisations offering legal advice do not charge for it. Even the majority of (specialised) lawyers interviewed offer free legal advice (see Table A-4.71). Belgium was the only Member State where half of the intermediaries interviewed said that they would not offer free legal advice. In Bulgaria almost all the intermediaries offered free legal advice and in the remaining Member States between one and three intermediaries stated that they would not provide legal advice free of charge. Those intermediaries not offering free legal advice do not provide compensation of costs. Legal advice was seen as an essential element for success (mentioned by intermediaries in at least three Member States (Austria, Bulgaria and the United Kingdom)), especially in court procedures and before “similar entities”. This observation was made principally by the lawyers but also by NGOs and victim support organisations. Thus access to legal aid or coverage of costs by legal expenses insurance are determining factors in promoting access to justice. In Austria, legal expenses insurance would not cover all the costs of preparing a discrimination case, which requires more research than other cases. Furthermore, such insurance would not cover representation in proceedings before tribunal-type equality bodies and claims for non-material damages. In Finland legal expenses insurance only cover costs in criminal proceedings. In the United Kingdom neither legal expenses insurance nor legal aid would cover costs for cases outside the employment sector. Furthermore, trade unions in the United Kingdom and the social partner organisation interviewed in Austria would not cover the costs of cases outside the employment sector. Representatives of equality bodies, “similar entities” and intermediaries identified several factors enabling good quality advice and assistance. One important factor was the standing / image of the organisation offering legal advice and support. Accessibility of the services offered and the quality of the relationship to the complainants were also seen as factors promoting the quality of legal advice and assistance. Reputation and independence were mentioned as important promotional factors, especially by NGOs and other victim support organisations. 90 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Many of the predominantly promotion-type equality bodies, as well as NGOs, seem to offer legal advice to everybody as long as the case falls within their mandate. Representatives of equality bodies in Belgium, Bulgaria, the Czech Republic, Finland, Italy and the United Kingdom identified a few criteria on which they base their decision about whether or not to provide legal advice to (potential) complainants (see Table A-4.72). Strategic litigation was the criterion mentioned most often. In Belgium two other criteria played a role, namely that the alleged discrimination had taken place in an area that was not much reported on and that the complainant belongs to an under-represented group. Among (specialised) lawyers, NGOs and victim support organisations, strategic litigation is the criterion most often applied in selecting complainants who are given legal advice (see Table A-4.73). The economic situation of the complainant, as well as under-reported areas and groups less likely to report discrimination were also taken into account by intermediaries. Trade unions usually offer advice only to their members; however, in Italy the trade unions seem to have taken cases of migrants who were not members. Further criteria applied by equality bodies are the credibility of the case, chances of success, good evidence and available resources. Furthermore, the duration of procedures influences the time available for legal advice. The more cases an individual counsellor or caseworker has to deal with, the longer it will take to achieve an outcome, which can sometimes have a negative effect on the energy and interest the complainants devote to their cases. Representatives of equality bodies and intermediaries in all eight Member States were of the opinion that good quality legal advice could only be offered by staff members who have acquired the necessary skills. Such skills do not only encompass knowledge on legislation and the latest developments regarding case law, but also skills for providing legal advice to victims of discrimination who belong to various groups. These skills are ideally acquired by dealing with many cases of discrimination, by engaging in continuous training, by exchanging experiences among staff members within an organisation and by securing access to relevant information available from both external and internal (informal) sources. Representatives of equality bodies, “similar entities” and intermediaries in almost all the eight Member States were of the opinion that many of the complainants did not know their rights or would not realise that they had experienced discrimination. A further challenge in their everyday work was identified by representatives of equality bodies and intermediaries. They saw it as especially challenging to tailor the legal advice to the needs of specific groups of complainants, which 91 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) usually means formulating advice on the legal situation and on possible procedures and outcomes in an easily understandable way. Among those who pose specific challenges to the representatives of equality bodies and intermediaries were complainants who belonged to either one or more of the following groups: complainants who have a lower level of education, who do not know the local language (Austria, France, Italy and the United Kingdom), who have different cultural backgrounds (for example Italy), who have an intellectual disability or who are in a psychologically stressful situation. 6.1.3 Analysis The majority of complainants had utilised some kind of legal assistance and advice, most often provided by lawyers followed by equality bodies and intermediaries. Almost all the promotion-type equality bodies in the sample of the study (except for the one in France) offer legal advice to complainants. Tribunal-type equality bodies do not offer this kind of service (except for the equality body in Bulgaria). The majority of the intermediaries interviewed offer legal advice and assistance. If they do not offer these services themselves they often have a referral policy in order to provide complainants with adequate contacts. Most often, legal advice was used by complainants before they lodged a complaint. This leads to the assumption that the system of justice is difficult to access without legal support from the very beginning. Almost two thirds of the complainants were represented during the proceedings – most often in court but also before “similar entities” and during formal or informal settlement procedures. This fact suggests that not only accessing but also navigating the system is quite challenging and makes support necessary (Hypothesis 13). A majority of the complainants had access to free legal advice or benefited from compensation of some costs. The costs of legal advice and assistance were especially raised as an important aspect by (specialised) lawyers who saw many complainants lacking financial resources to cover the costs of legal advice and assistance. Intermediaries therefore pointed to access to legal aid or coverage of costs by legal expenses insurance as determining factors in promoting access to justice. A substantial majority of complainants were satisfied with the legal advice and support they had received and had a high opinion of the professionals who represented them. Essential for this satisfaction with legal advice and support was the easy accessibility and availability of counsellors, caseworkers and lawyers during the whole duration of the procedure. Representatives of promotion-type equality bodies and intermediaries were aware of these needs 92 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) on the part of complainants, but also emphasised that their resources were not adequate to meet all these needs. About half of the promotion-type bodies and intermediaries applied some kind of strategy for selecting who was provided with legal advice and assistance. Therefore the resources of complaints and dispute resolution bodies play an important role in determining access to justice, as not all complainants who seek justice may have experienced discrimination in an under-reported area or belong to an under-represented group. 6.2 Emotional, personal and moral support In the desk research conducted for the literature review on access to justice related to cases of discrimination, emotional, personal and moral support was not addressed in detail. In the fieldwork the basis for analysis of emotional, personal and moral support is the following hypothesis: emotional and personal supports are important in motivating and sustaining the complainant in cases of discrimination (Hypothesis 14). The following sub-section presents the experiences of complainants with gaining access to this kind of support, to what end they sought it and whether they were eventually content with what they received. The next sub-section describes the data generated by the interviews with representatives of equality bodies and judicial / administrative institutions and intermediaries. It sheds light on what kind of emotional, personal and moral support they offer and what they think about the quality of this kind of support offered by either their institution or the responding intermediaries themselves. 6.2.1 Experience and assessment of complainants of emotional, personal and moral support About half of the complainants had access to emotional, personal and moral support (see Table A-4.74) and to a lesser extent psychological support. More than half of the complainants who had access to these types of support identified family, friends and (former) colleagues as the most important sources (see Table A-4.77). It included talking about what they had experienced and sometimes it was the complainant‟s family members or friends who identified the case as discriminatory. Furthermore, complainants talked about the case to their family, friends and (former) colleagues, who affirmed them in their decision to lodge a complaint or kept them going during the ups and downs of a long and stressful procedure. Sometimes they provided support by drafting letters and by explaining the content of documents. 93 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) It was mentioned as a strong point of these other kinds of support that it is easier to deal with discriminatory incidents if the complainant does not feel isolated and alone (see Table A-4.78). Apart from these positive aspects, complainants also mentioned fear of victimisation in the workplace or fear of victimisation of their families as reasons for not sharing their stories and concerns with their colleagues and family (see Table A-4.79). In a few cases the family was not supportive, either because they were afraid of negative consequences or because they were of the opinion that the complainant should not have lodged a claim. A few complainants mentioned that they might look for other kinds of support outside their family if they lodged a complaint again, in order not to expose family members to all the stress and anxieties. Access to these types of support tends to be informal, as most of it is not institutionalised. In most of the institutions which provide this personal support it is not part and parcel of the services they offer and provision very much depends on the individual staff member‟s capacities and skills. The equality bodies in Bulgaria, Belgium and the United Kingdom, as well as intermediaries in Austria, the Czech Republic and Finland, were most often mentioned as providing other types of support. As these types of support were assessed as helpful, complainants said that they should be explicitly offered and that psychologists and other health professionals should be trained in discrimination issues. The respondents were very satisfied with the emotional, personal and moral support they had received. Almost 90% were either „very‟ or „mostly‟ content (see Table A-4.75). Almost 65% of the complainants would recommend this type of support to a friend in a similar situation (see Table A-4.76). About one fifth of the complainants identified empathy either from an intermediary or from an equality body as a source of personal, moral and emotional support (see Table A-4.80). The respondents had the feeling that their stories were listened to, believed and understood and that the professionals had a supportive attitude towards the complainants. Those complainants who had lodged their complaint together with others affected by discrimination particularly valued peer support. They listened to each other, took steps to prepare the case together and encouraged each other to go on with the procedure. Almost all the complainants said they would like to make use of emotional, personal and / or moral support next time they launched a complaint (see Table A-4.81). 6.2.2 Views of equality bodies, “similar entities” and intermediaries on emotional, personal and moral support Very few of the equality bodies and “similar entities” offer emotional, personal and / or moral support to the complainants (see Table A-4.82). Most of those 94 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) which do are promotion-type equality bodies located in Austria, Belgium, the Czech Republic, Finland and France. Some “similar entities” also offer this kind of support. Intermediaries more often provide emotional, personal and / or moral support to their complainants than equality bodies (see Table A-4.83). Typically this kind of support is offered by victim support organisations and NGOs, but also quite a few (specialised) lawyers see these additional kinds of support as part and parcel of their services. All the intermediaries which offer this kind of support provide moral support and quite a lot of them emotional and personal support (see Table A-4.85). Some of the promotion-type equality bodies which do not offer these kinds of support themselves refer complainants to other organisations able to offer these kinds of support (see Table A-4.86). Only a few intermediaries do referrals if they offer these kinds of support themselves. More intermediaries not offering these kinds of support than equality bodies refer their complainants to other organisations (see Table A- 4.87). Quite a broad range of activities is classified as falling within „other kinds of support‟ more often by intermediaries than by equality bodies. It includes adequate explanations of the procedural possibilities and choosing the best solution for each individual case, the duration of the procedures and the expected outcomes, as well as possibilities of accessing legal aid. In particular regarding the outcomes, complainants were said by intermediaries to be rather badly prepared for outcomes which were not in their favour and the negative consequences (Czech Republic). However, the services described should really be categorised as legal advice, which is maybe evidence that the concept of emotional, personal and moral support is not totally clear to all professionals involved in giving support to complainants. A few lawyers explicitly stated that they saw offering moral or emotional support as part of their duty (Austria and Bulgaria) and necessary in order to motivate the complainants to continue with their cases. Keeping complainants informed about their cases and enquiring about their current emotional situation was seen as important by representatives of victim support organisation in Belgium. Other elements of these kinds of support were: - face-to-face contact, which does not always seem to be guaranteed either because of lack of resources or non-proximity to the complainants; - active listening, as complainants want to tell their stories; - motivating complainants to come back for further support; - activities not related to legal proceedings such as developing non-legal strategies to cope with multi-layered problems of the complainants also including discrimination issues. 95 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Psychological elements of support focused on the empowerment of complainants, in particular around leaving the role of the victim (France) and gaining self-confidence or coming out (e.g. Austria and Italy), face-to face or online peer groups and peer counselling (Austria, Bulgaria, Finland, France and the United Kingdom). Representatives of equality bodies and intermediaries identified factors – without being given predefined answers – enabling the provision of good quality moral, emotional and personal support. Among these factors were adequate resources and skills of staff, enabling them to have enough time to attend to the complainants and acquire the necessary skills. Another issue raised by representatives of equality bodies and intermediaries was the relationship between legal advice and these other kinds of support – whether they should be provided at the same time or separately. Furthermore, outreach to organisations that provide these other kinds of support were seen as a promotional factor in order to be able to refer complainants to competent organisations if special kinds of emotional, personal or moral support are needed. As resources already seem to be scarce for providing legal support, the provision of these kinds of support appear to pose an even greater problem to equality bodies and intermediaries. This problem is not just to do with the scarce resources but, with regard to equality bodies, the provision of these kinds of support is not part of their mandate. The promotion-type equality body in the Czech Republic is an exception to some extent, in that it at least employs a psychologist. Face-to-face contacts help to establish a relationship of trust between complainant and counsellor or lawyer. Intermediaries in at least six Member States identified empathy, active listening and showing the clients that their case is unique and important as key for building confidence. These aspects go somewhat beyond core legal advice and assistance and include elements of personal and emotional support. However, it is rather difficult to keep these elements separate, when trying to offer good quality legal advice. Some of the complainants have quite high expectations which cannot be fulfilled (Belgium and Finland) and it should be clarified before the start of the procedure what may be possible and what realistic expectations may be. Personal support requires different qualifications of staff members from legal advice. Interdisciplinarity in teams as well as diversity among the staff, in order to accommodate for diversity, were seen as essential assets in guaranteeing good quality in these kinds of support (for example Austria, Czech Republic, Finland and the United Kingdom). 96 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) There was no agreement among the representatives of equality bodies and intermediaries about whether it was better to keep legal advice and other kinds of support apart (favoured by equality bodies) or to integrate them and have a good balance of empathy and legal advice (favoured by intermediaries). Offering moral, emotional and personal support was seen as risky by intermediaries. This was especially so if staff were not well trained in these areas, as it could result in self-exploitation by staff members (Austria, Bulgaria and the Czech Republic), complainants asking for more and more support (Italy) and in staff members not knowing how to deal with certain problems and where to refer complainants (Finland). 6.2.3 Analysis Insofar as emotional, personal and / or moral support was offered, a large majority of the complainants was very satisfied with this support. They deemed the support they received as necessary in order not to feel isolated and alone when coping with the incident of discrimination. A few lawyers mentioned that emotional support influences the motivation of complainants to go on with their case (Hypothesis 14). Complainants rated empathy as an important source of emotional, personal and moral support, which gave them the feeling that their stories were listened to, believed and understood and that the professionals had a positive attitude towards the complainants and their case. Peer support was identified as a further promotional factor in keeping up the morale of complainants during proceedings. The danger of relying on these kinds of support from family, friends and (former) colleagues was fear of victimisation of family members or of colleagues. People preferred to receive emotional, personal and / or moral support from professionals in an institutional context. Promotion-type equality bodies and intermediaries do not always seem to have a totally clear view of what kind of services fall, on the one hand, within legal advice and, on the other, within emotional, personal and / or moral support. Their insecurity about the categorisation of support indicates that emotional, personal and / or moral support is not always defined as a fixed set of services offered by these organisations. Representatives of promotion-type equality bodies, “similar entities” and intermediaries point to resources and skills as factors influencing to what extent they are able to give complainants support that motivates them to pursue their cases to their conclusion. The findings of the interviews show that the experiences of complainants and intermediaries to some extent confirm the idea that emotional, personal and 97 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) moral support are important in motivating and sustaining the complainant in cases of discrimination. 6.3 Awareness of rights This section on awareness of rights focuses on the availability and quality of measures aimed at awareness-raising. The basis of the analysis is formed by the following hypotheses: - Low levels of awareness of rights under equal treatment legislation and of how to exercise these rights is a critical barrier to access to justice in cases of discrimination (Hypothesis 15) - Levels of awareness of rights differ for different groups covered by equal treatment legislation (Hypothesis 16) This section examines the measures explicitly targeting (potential) complainants, seeking to inform them about: - their rights under equality legislation; - the existence, character and tasks of equality bodies; - how a complaint can be lodged; - what procedures are in place. The section also examines the complainants‟ satisfaction with the information they gained from the different sources. Next a description is given of the measures taken primarily by promotion-type equality bodies and intermediaries in order to raise awareness among complainants, potential complainants and the general public, and their assessment of whether their information, communication and outreach policies result in an effective targeting of (potential) complainants. 6.3.1 Awareness of rights of complainants Complainants had acquired knowledge about their rights under equality legislation in several different ways (see Table A-4.88). Almost 50% of the responses show that the complainants interviewed were well equipped with personal resources. They had learned about their rights either in school or at university or knew about their rights because this knowledge is part of a common culture. They had the ability to do research, in order to obtain and assess the wealth of information available on the internet. They were able to acquire legal knowledge and gain expertise on discrimination issues e.g. by having already lodged previous claims. They had family and friends who knew about their rights. Some just knew that they had been wronged and something had to be done about it. Some had sufficient time and resources to be (politically) active and to inform themselves about their rights. Almost 20% of the responses concentrate on the complainants‟ working environment and personal networks. This means that the complainants work in 98 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) jobs or environments in which knowledge of equality legislation is either expert knowledge necessary for the job or common culture. Other complainants have been members of or have been active in organisations dealing with anti- discrimination issues, such as trade unions and NGOs working on, for example, gender, racism or disability issues. A little more than 20% of the responses indicate institutional support in gaining knowledge about their rights. When complainants were explicitly asked about the sources of information about their rights under equality legislation, they connected the search for this information more specifically with their concrete case. This approach used by the complainants points to the importance of competent institutions and media publishing model judgments and related information about legal provisions. Sixteen per cent of the complainants interviewed had gained their knowledge from the media and another 16% from an equality body (see Table A-4-89). Lawyers were identified as sources in more than 12% of the answers given, while 11% referred to the internet and another 11% to family or friends. About 9% referred to an intermediary (especially trade unions and NGOs), 8% personal resources of the complainants, another 9% to the working environment and 8% to personal networks of the complainants. On average more complainants gained this kind of information from the respective equality bodies in Austria, Belgium and the United Kingdom, whereas none of the complainants mentioned equality bodies as a source of information in the Czech Republic and almost none in Italy and France. In Italy this gap seems to be filled, at least to some extent, by lawyers, in the Czech Republic by the media and lawyers. In France the media play quite a relevant role in disseminating this kind of information, which might be connected to the fact that the president of the equality body used to appear regularly on the radio. The internet seems to be most often used by complainants interviewed in Bulgaria. Personal resources played a more important role in Finland and the working environment in Austria, Bulgaria, France and the United Kingdom. Brochures and leaflets only play a minor role as sources of information about rights. Only two complainants based in France mentioned that knowing one‟s rights under equality legislation was part of common knowledge or culture. More than 80% of the complainants were of the opinion that accessing the information about their rights was not difficult (see Table A-4.92). Sixteen per cent of the complainants with tertiary (largely university) education, 22% with secondary education (largely schools with school leaving certificates) and none of the complainants with primary (compulsory) education deemed access to information difficult. Overall the complainants interviewed were very well educated, as about 60% had achieved a university degree (see Section 2.5.3). 99 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) This outcome may result from some of the better educated and informed complainants who mentioned that, although it might have been fairly easy for them to obtain this information, it could be more difficult for others who are less well educated and have not had the opportunity to acquire specialised knowledge. Easy access to information is to a large extent explicable by the resources available to the complainants interviewed (see Table A-4.93). These include education, the option and ability to search the internet, personal knowledge about discrimination (either acquired through work or by having lodged a previous complaint) or access to networks sharing relevant knowledge with the complainant. Other factors facilitating access to information were peer support by complainants who were either lodging a complaint in a similar case or were part of a class action and the provision of information about similar cases. Obstacles in gaining information were difficulties in assessing the information found, lacking knowledge about where to seek information and not finding information matching the particular situation of the complainant (see Table A- 4.94). The most useful information on the existence, character and tasks of the equality bodies seems to be found in the media (21%) (see Table A-4.90). The media seem to play a more important role in promoting the equality bodies than in disseminating knowledge about the equal treatment legislation (see above). A little more than 10% of the responses referred to the working environment and networks or lawyers as sources for information on the equality bodies. Family and friends, personal resources and the internet were useful in slightly fewer than 10% of the answers given. Equality bodies, intermediaries and community organisations were mentioned less often. However, once the complainants had found their way to equality bodies (23%), lawyers (19%) or intermediaries (11%), they gained somewhat in importance as a source of information advising the complainants about how to lodge a complaint with an equality body in comparison to non-institutionalised sources (see Table A-4.91). This leaves slightly fewer than 50% of the complainants without any institutional support in relation to how they can lodge a complaint. Of the complainants who had taken their case to a promotion-type equality body, still only 34% of the responses referred to the equality body as a source of information on how to lodge a complaint. When complainants took cases to a court, they were primarily informed by lawyers and by intermediaries and when they lodged a complaint with a tribunal-type equality body their most important sources of information were lawyers and other equality bodies. The social environment of the complainants does not seem to be very well acquainted with the existence, character and tasks of the equality bodies. About 40% of the complainants interviewed were not advised by anybody to lodge a 100 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) complaint with an equality body, instead they themselves took steps to trace the relevant information on the equality bodies (see Table A-4.125). Family and friends or people at work did not play a decisive role in promoting equality bodies. Once complainants have learned about their rights and the existence of an equality body, it is easier for them to find an entry point into the broader system of access to justice. When complainants looked for concrete information on procedures, equality bodies were logically their primary source of information (see Table A-4.101). About one quarter of the responses from complainants referred to themselves as a source of information on the procedures as well as to lawyers. Somewhat more than 10% of the responses pointed to intermediaries as a source of information on procedures in place. In Belgium, Bulgaria, Finland and the United Kingdom equality bodies were the primary sources of information on the procedures. In Austria intermediaries and the equality body played the most important role, in Italy this role was taken by lawyers and in France by complainants themselves. In the Czech Republic both lawyers and complainants ranked highest as sources of information on procedures. Based on the data from the interviews with the complainants, a triangle, which is to a large extent built on family, friends and colleagues, intermediaries and equality bodies (see Table A-4.124), can be identified as being responsible for building complainants‟ confidence in order to take the decision to launch a complaint. However, over 60% of the complainants said that they had relied on their own judgment and conviction for taking action against discrimination. Many of them were convinced that they had been treated wrongly and that it was their right to challenge those who had done them wrong in order achieve justice. Some of the complainants interviewed identified themselves as activists for whom it was not possible to quietly endure discrimination. Furthermore, they were angry or shocked by the discrimination they had experienced and therefore wanted to stand up for their rights. A few said that they had good evidence or were influenced by similar cases which had successfully been taken to dispute resolution bodies. Intermediaries and equality bodies together played a role for about one quarter of the complainants in gaining confidence to lodge a claim. Not only their reputation and expertise and the support offered, but also their encouragement of the complainants to take their case, were identified as promotional factors. Some complainants said that the intermediaries they had contacted were so convinced that their case could not be lost that this prompted them to take action. Almost 90% of the complainants considered the information on rights under equality legislation adequate and accurate (see Table A-4.95). Complainants in 101 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Finland were less often content with the adequacy and accuracy of the information than in the other seven Member States, whereas all the complainants in Bulgaria and almost all the complainants in Belgium, the Czech Republic, France and Italy had received adequate and accurate information. The media, lawyers, the internet, family and friends, personal resources and community organisations were seen as the most reliable sources of information on rights under equal treatment legislation (see Table A-4.96). The resources of the complainants played an important role in gaining precise information (legal expertise, research on the web, experience with complaints and being able to understand the information provided). Proper and satisfactory information was also gained by way of information about similar cases (see Table A-4.97). Obstacles to obtaining correct and appropriate information were the absence or inadequacy of information about where to lodge a complaint and about further steps which could be taken, as well as the complexity and technicality of the legal language used (see Table A-4.98). In general the complainants interviewed were reasonably content with the information they had obtained about the equality body, about lodging a complaint and about the procedures (see Table A-4.99). There are no significant differences in the levels of satisfaction with the information received depending on whether the complainants had informed themselves or were informed by an equality body, a lawyer or an intermediary. When looking at the remaining questions the complainants had after they had received legal advice, they highlight the following critical points in relation to the different stages of the procedures (see Table A.4-102): - Questions relevant before lodging a complaint related to: o the role and the mandate of the equality body; o how and where to launch a procedure; o what is needed for starting proceedings; o what procedures look like; o how long they take; o what they cost and what can be achieved; o where to find legal support. - Questions relevant during the preparatory phase of a procedure related to: o the drafting of a complaint; o the collection of evidence. - Questions relevant during the procedures related to: o how to behave; o what to expect from courts, “similar entities” or tribunal-type equality bodies. - Questions relevant during the follow-up phase after a case had been concluded related to: o what happens after the conclusion of the case; 102 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) o what can be done when nothing changes even though the outcome has been in favour of the complainant. 6.3.2 Views of equality bodies, “similar entities” and intermediaries on awareness of rights Equality bodies and intermediaries in all eight Member States of the sample use quite different channels of communication for offering information about what kind of services they provide (see Table A-4.69 and Table A-4.70). Promotion- type equality bodies primarily offer information via their websites and brochures / flyers and they engage in networking. It is rather difficult to assess the priorities of tribunal-type bodies or “similar entities” in advertising their services (see Table A-4.69). Intermediaries rely to a large extent on word of mouth. Like promotion-type equality bodies, they engage intensively in networking, which includes promoting their services via other NGOs which do not necessarily focus on equal treatment and anti-discrimination issues. Although brochures are used by intermediaries, they are clearly less often mentioned as a central tool in promoting services than the internet or networking. Intermediaries as well as equality bodies use the internet as a central communication tool; social networks like Facebook and Twitter are starting to emerge as possible channels of communication. The mass media, which are easily accessible for all (potential) complainants, are used by intermediaries primarily to promote successful cases. Most of the equality bodies – both promotion and tribunal-type – have developed communication strategies concerning rights under the relevant equality legislation, the existence, character and tasks of their body and how to lodge a complaint (see Table A-4.104). Representatives of one and the same equality bodies did not always agree on whether the body had a strategy or not, therefore it is difficult to pick out those bodies which do not have a strategy at all. Fewer promotion-type equality bodies employ a strategy to inform (potential) complainants about possible procedures. Intermediaries seem to have developed communication strategies to a lesser extent than equality bodies (see Table A-4.105). It should be kept in mind, however, that quite a lot of intermediaries perceive legal advice as a strategy for targeting (potential) complainants. This leads to a focus on providing information to those who have already recognised that they have been treated unfairly. More than 50% of the intermediaries were actively targeting complainants; (specialised) lawyers were less active in this regard (see Table A-4.106). 103 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Representative of equality bodies in Austria, Finland and Italy explicitly stated that they would not market their services as they could not serve more complainants than those already making use of their services. Those equality bodies which have a communication strategy seem to focus their resources on four broad strategies aimed at raising awareness among (potential) complainants. First, they directly target (potential) complainants by tailoring the information material to the needs of certain target groups, e.g. by providing easy-to-read material or information material in different languages, and by providing model cases in order to motivate potential complainants to take action (Austria, Belgium, Bulgaria, France and Italy). Next, an indirect strategy is to do outreach work and increase their proximity to potential complainants (Austria, Belgium, Bulgaria, Finland, Italy and the United Kingdom), especially where equality bodies do not have any regional offices, by cooperating with community organisations who have expert knowledge on how to reach their specific target groups. Furthermore, they undertake networking with and / or provide workshops to victim support organisations, NGOs, municipalities and other public bodies, lawyers and the police, in order raise their awareness of the fact that some of their clients might have been affected by discrimination and might not have recognised the discrimination as such (Austria, Belgium, Bulgaria and Czech Republic). Last but not least, training events are held to empower persons to recognise discrimination and may result in participants actually bringing forward cases. Factors enhancing the effective targeting of (potential) complainants which have been indicated by representative of equality bodies and intermediaries interviewed encompass the following: - The standing / image of the organisation (Austria, Belgium, Bulgaria, Finland, France and the United Kingdom). - Financial and human resources (in all eight Member States). - Accessibility of the information offered (Austria, Bulgaria, Finland, France and the United Kingdom), as well as (access to) knowledge about what communication channels should be utilised and what the information should look like, in order really to reach and appeal to different groups potentially affected by discrimination. This is often achieved by way of networking and outreach work (Austria, Belgium, Finland, France, Italy and the United Kingdom). - The proximity of an organisation to (potential) complainants is of relevance (a factor identified in all eight Member States reviewed), as it contributes to determining whether the information provided will be trusted, especially by 104 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) socially marginalised groups (for example Roma, Travellers, people living in poverty and homeless people) and whether potential complainants will eventually approach the organisation in order to get support. Intermediaries assessed which means of providing information to (potential) complainants were most successful in terms of reaching the target group (see Table A-4.128). Brochures were seen as least effective, followed by phone or help desks. More impact was associated with websites and networking. Among further means mentioned were word of mouth, direct contact with (potential) complainants, mass media, workshops / lectures, social media, outreach via member organisations / representatives, press conferences / releases and media targeted at (potential) complainants. Additional skills are required of the staff members of equality bodies and intermediaries, since the information provided has to be easily accessible and tailored to the needs of different target groups. This is an even greater challenge for organisations offering support on different grounds and in various fields of discrimination. Some of them have developed communication strategies which focus on specific issues of discrimination, such as in relation to wearing religious symbols (i.e. headscarves) or sexual orientation, as a more comprehensive approach does not seem to work with potential complainants (for example Austria, Belgium and Finland). Proximity to potential complainants can be achieved by quite a broad range of strategies. Outreach work (Austria, Belgium, Finland, France, Italy and the United Kingdom), especially together with community organisations, does not only enhance access to various potential complainants (by overcoming language and cultural barriers and accommodating needs of people with different kinds of disabilities, etc.), but also increases knowledge about what communication channels work well to access these communities. Complainants are reached in their own context or through community organisations or NGOs which know better how to contact complainants who have been affected by a specific ground of discrimination or who have certain socio-demographic characteristics (for example, age, social origin or education) (Belgium, the Czech Republic, Finland and Italy). Social media like Facebook and Twitter are seen by a small number of intermediaries as especially important for targeting young people. A representative of a community organisation in Austria was of the opinion that information about rights and the possibilities of taking action against discrimination was especially effective when given by peers, i.e. people who have themselves experienced discrimination. Trade unions in the United Kingdom have set up equality networks for various groups of people potentially affected by discrimination, which also provide the opportunity for peer support. Offering free legal advice on a regular basis in places close to potential 105 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) complainants, as well as providing advice without the necessity of making an appointment, lower the threshold for accessing information (for example, Austria and France). Equality bodies try to establish networks with NGOs, community organisations, trade unions and public authorities. Intermediaries tend to establish networks among themselves, including specialised lawyers, NGOs and community organisations, to expand their outreach. According to intermediaries in Austria, Belgium, France and the United Kingdom, the processing of model cases in an easily understandable way required good teamwork by legal and public relations experts and good relationships with the media were necessary in order to get these cases published, even when complainants wanted to remain anonymous, which quite often seems to be the case. According to intermediaries, promotional factors for enhancing the capacity of organisations to target (potential) complainants effectively would be more support from public bodies (Belgium), more attention paid by the media to the issue of discrimination (Belgium) and strong support in public discourse for equality and non-discrimination (Austria). 6.3.3 Analysis The section on awareness-raising shows that it is essential for acquiring knowledge about rights under equal treatment legislation and how to exercise these rights. If (potential) complainants do not know their rights, they will not realise that they have experienced discrimination. Complainants have pursued diverse processes for acquiring knowledge about their rights under equality legislation. Many of them utilised personal resources or resources related to their working environment. Institutional support played a less important role in the process of acquiring knowledge about rights. Complainants who have realised that they have been discriminated against need to know where to go in order to be able to report their case. The media were the primary source of information for complainants on the existence, character and tasks of equality bodies; other sources used were the working environment, networks and lawyers. However, it seems to be the case that complainants do not always find their way to the most competent complaints and dispute resolution bodies and intermediaries for getting advice on lodging a complaint or on procedures in place. Not knowing where to take a case has a negative impact on the number of cases reported. As soon as complainants have found their way to a complaints and / or dispute resolution body, it is important for them to get information on how to lodge a complaint. Almost half of the complainants said that they were not provided with any institutional support on how to lodge a complaint and about one quarter had to inform themselves about the procedures. Taking into account the diversity of complaints and dispute resolution bodies and of paths to access to justice in 106 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) discrimination cases, guidance on the issue of how to lodge a complaint and on the procedures available would contribute to enhancing access to justice. After the complainants have gained information on how they can lodge a complaint, they have to decide whether they want to continue with their case. Adequate information and support for taking this decision is needed. For building confidence among the complainants to decide whether they want to launch a complaint or not a triangle, which to a large extent comprises family, friends and colleagues, intermediaries and equality bodies, was of relevance. However, more than 60% of the complainants had to rely on their own resources and on themselves to finally take the decision on whether or not to lodge a complaint. The more complainants decide to lodge a complaint, the more access to justice is guaranteed by the mechanisms in place, increasing complainants‟ confidence. A majority of the complainants interviewed assessed the information gained on their rights under the equality legislation as adequate and accurate and the complainants were largely content with the information they had gained about the existence, character and tasks of the equality bodies, about how to lodge a complainant and about the procedures. Complainants were more satisfied with the information when they had gained knowledge from different sources of information. In addition to lodging a complaint and obtaining information on the procedures, the complainants identified some additional areas they labelled as important in order to have adequate information on the proceedings: the possible duration of proceedings, the costs of proceedings, the collection of evidence, what to expect of procedures in courts, before “similar entities” or tribunal-type equality bodies and what can be done after the closure of the case when no change has been achieved. Once the complainants gained access to the appropriate body and had received information on lodging a complaint and on the procedures, the intermediaries and dispute resolution bodies were seen as experts who could provide adequate and accurate information. The quality of the information is essential in convincing complainants to bring their case. Based on the data collected, it is difficult to assess to what extent low levels of awareness of rights under the equal treatment legislation and about how to exercise these rights is a critical barrier to access to justice in cases of discrimination, as a great majority of the complainants interviewed at least had some knowledge about the right not to be discriminated against. However, the strategies and measures developed by primarily promotion-type equality bodies and intermediaries suggest that they see a link between specifically targeting (potential) complainants with information (about their 107 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) rights, the existence, character and tasks of the equality bodies, how to lodge a complaint and the procedures in place) and the possibility of enhancing awareness among potential complainants by way of these strategies and measures and of increasing the number of cases that are reported. These strategies and measures undertaken by promotion-type equality bodies and intermediaries provide some evidence that low levels of awareness of rights and how to exercise these rights are seen as a critical barrier for access to justice (Hypothesis 15). Promotion-type equality bodies and intermediaries have developed strategies to increase the proximity to different groups of potential complainants. The development of these strategies seems to be largely based on experiences gained by providing legal advice to various groups who have different levels of awareness of their rights (Hypothesis 16). In order to be able to tailor the strategies aimed at increasing proximity to potential complainants to the needs of these groups, both equality bodies and intermediaries involve themselves in outreach work. The knowledge about what information channels work with which target groups and how information strategies and policies can be developed needs further resources and skills and most of the promotion-type equality bodies and intermediaries do not have adequate resources for this. Further development in this area is important in order to make different groups of (potential) complainants aware of their rights under equality legislation and to provide them with information about how to proceed if they experience discrimination. 6.4 Accommodation of diversity This section on accommodating diversity analyses the availability and the quality of the measures taken to accommodate diversity. The basis for this analysis is the following hypothesis: equality bodies and other administrative and judicial institutions show little awareness and concrete action regarding accommodation of diversity in procedures and support for the different grounds of discrimination and / or for different groups (Hypothesis 17). The section examines to what extent the complainants interviewed had particular needs in order to be able to lodge a complaint or to participate in procedures and whether and how these needs are met. The needs of the complainants are set against the awareness of particular needs of the equality bodies, “similar entities” and intermediaries at the level of the individual complainant, of different groups of complaints and of complainants discriminated against on a particular ground of discrimination. Furthermore, strategies to accommodate for diversity at these different levels employed by equality bodies, “similar entities” and intermediaries are examined. The assessment of the quality of these strategies by the equality bodies, 108 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) “similar entities” and intermediaries is linked to the perceptions of the complainants. 6.4.1 Experience and assessment of complainants of accommodation of diversity The complainants interviewed are quite diverse with regard to their gender, age, ethnicity and the grounds on which they have experienced discrimination: 25% on race / ethnic origin, 23% on gender, 21% on disability, 8% on religion or belief, 7% on age and 6% on sexual orientation. About one third of the complainants interviewed were either nationals of other EU Member States or countries outside the EU, or had a different ethnic background than the majority population in the Member State in which the interview was held (see Table A-4.107). Fourteen per cent of the complainants were not informed about lodging a complaint and about the procedures in their native language but in the language of their country of residence (see Table A- 4.108). Three complainants residing in Member States with national languages other than English had been informed about how to lodge a complaint and about the procedures in place in English. Almost all complainants (with only one exception) stated that they mastered the language in which they had been informed (see Table A-4.109). About 10% of the complainants said that they had particular needs vis-à-vis the people who supported them (see Table A-4.110). These particular needs most often included the need to meet their supporters in accessible premises (i.e. without physical barriers) or accommodation for various communication needs, such as the provision of information in Braille, sign language interpreters or lip readers and communication in English (in Member States with national languages other than English). The latter kind of accommodation was also most often needed during the proceedings (see Table A-4.111). Others needed more support with drafting their complaints, either because they had difficulties with the language as it was not their native one or because it was too difficult for them to formulate the complaint. Mostly the complainants voiced these particular needs themselves, in a number of cases they were expressed by the intermediaries (see Table A-4.112). The assessment of whether the complainants had been satisfied with the fulfilment of their particular needs and whether their needs had been met in time was quite ambivalent (see Table A-4.113). The number of complainants who were fully content equalled those who were not at all content. Complainants were least content in Austria and the Czech Republic and most content in Finland and the United Kingdom. In order to improve awareness of particular needs, complainants suggested that the staff of the equality bodies as well as the courts should reflect the diversity 109 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) of society. Further suggestions for improvements related to various stages in the procedure. First, information should be provided in a way that is easy to read and understand, without any other barriers as well as in different languages, not only before lodging a complaint but also during the proceedings. It was mentioned by one complainant that there were no lawyers available speaking Sami, one of the minority languages in Finland. The premises of equality bodies, intermediaries, courts or tribunals should be made physically accessible. Staff of the courts and tribunals should be more aware of particular needs during the proceedings. Two complainants suggested developing checklists, which enumerate all the particular needs and available remedies to accommodate for these needs. These checklists could be gone through before each procedure, in order to make sure that all the equipment needed is available and working and arrangements have been made for, for instance, sign language interpreters or lip readers. Another improvement suggested related to cases aimed at the removal of barriers: negotiations of this kind could be conducted at the premises under review, as, firstly, suggestions for proper improvements are easier to make and, secondly, when the changes have been implemented it is easier to check whether they really comply with the provisions for accessibility. 6.4.2 Views of equality bodies, “similar entities” and intermediaries on accommodation of diversity Almost all equality bodies deploy some strategies to provide information to specific groups (see Table A-4.114). The strategies most often used are provision of information via accessible websites, easy-to-read brochures and in different languages. A promotion-type equality body in Finland seems to allow for contact in any language and to arrange interpreting free of charge. Sign language, audio files, brochures in Braille and information targeting people who cannot read or write are less often available In comparison with the equality bodies, only about 70% of the intermediaries included in the sample stated that they used distinct strategies to provide specific groups with information on their services (see Table A-4.115). The probability that intermediaries have developed specific strategies is higher when they actually target specific groups with information on their services. Trade unions, victim support organisations and NGOs are more likely to have information material on accommodation of diversity than specialised lawyers; the latter employ such strategies more often than general lawyers. They are most often employed in Austria, Finland and the United Kingdom, least often in Bulgaria. Although most of the equality bodies use different approaches to inform (potential) complainants associated with each of the different grounds, they less 110 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) often adapt the services they offer, such as legal advice or moral, emotional and personal support, to the needs of different target groups (see Table A-4.116). The promotion-type equality body in Austria would for instance not allow translation by a spouse in a case of gender discrimination. The equality body in the United Kingdom would be flexible where the access needs of complainants were concerned and would also meet the complainants in premises other than its own. Few of the equality bodies had a formal procedure in place to assess and respond to the needs of each individual complainant in relation to the way in which legal support is provided and even fewer for assessing and responding to the needs of individuals from different groups. Quite a few equality bodies and “similar entities” use different approaches to assess particular needs in relation to adjusting procedures. In Bulgaria and Italy they use rather ad hoc approaches. The tribunal-type equality body in Austria has accessible rooms, offers interpreters, can hold separate hearings for the complainant and defendant in cases of sexual harassment and has participated in a training event aimed at enhancing its skills when questioning traumatised young people. In the United Kingdom “similar entities” are said to respond to the particular needs indicated in special forms by intermediaries. In Bulgaria public hearings of the equality body can be held in camera or the complainant and defendant can be questioned separately in cases of sexual harassment. Few bodies use different approaches to guarantee good quality of outcomes on the different grounds of discrimination; most adaptations are done with regard to disability (France and the United Kingdom) and Travellers (the United Kingdom). The intermediaries involve themselves to a lesser extent in strategies relating to accommodation of diversity (see Table A-4.117). Most often they employ such a strategy with regard to informing (potential) complainants associated with each of the different grounds, offering legal advice and assistance for different grounds and responding to the needs of each individual complainant in relation to the way in which legal support is provided. Legal advice is adapted by offering low threshold support without appointments (Austria), by employing counsellors speaking different languages (Austria and Finland), by utilising intermediaries for communication (Bulgaria), by not meeting complainants in the premises of the organisation but where they prefer to meet (Italy) or by taking more time to offer support to specific groups in order to be able to explain the situation in a more understandable way (Finland). In France it was explicitly mentioned that drop-in law clinics could best deal with multiple discrimination. In Bulgaria one intermediary mentioned that the approach for other kinds of support depended on the severity of the discrimination. No examples were mentioned by intermediaries as regards the adaptation of procedures to various needs. 111 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Experiences of the representatives of equality bodies and intermediaries show that different groups need different approaches. For example, foreign residents or people with mental health problems need more support than other complainants, women who have experienced sexual harassment prefer legal advice and support from a woman. Identifying individual needs when providing face-to-face support is often mentioned as a strategy to respond to the needs of individuals. In order to achieve this aim, counsellors or lawyers need specific social skills. Accessibility of premises was also mentioned by equality bodies, “similar entities” and intermediaries as a promotional factor targeting specific groups of (potential) complainants. Altogether it is difficult to say whether the ground, the severity of discrimination experienced or the individual needs of a complainant determine the way in which the support is given, or whether it is a combination of all these factors which is influenced by individual characteristics such as gender, age, education, social status and knowledge about rights. 6.4.3 Analysis Very few of the complainants interviewed declared that they had particular needs in relation to the person who had supported them, even fewer said that they had particular needs during procedures. When comparing these numbers to the overall diversity of the sample of complainants interviewed, it may be that not all complainants made their particular needs known. The needs articulated focused on accommodating for physical barriers concerning both premises and documents and on accommodating various communication needs. Most of the time the complainants voiced their particular needs themselves, but in several cases they were expressed by intermediaries supporting the complainants. Almost all the promotion-type equality bodies employ some strategies to provide information to groups with particular needs, however, they seek less often to adapt their procedures to the different needs of the complainants. Tribunal-type equality bodies and “similar entities” more often adapted their procedures to suit particular needs. Intermediaries more often adapted their information policy to meet the needs of different groups of complainants, but less often accommodated diversity of needs when providing legal advice and assistance. Among equality bodies and intermediaries an individual approach to complainants seems to be more common than an approach based on the needs of different groups or grounds of discrimination. Identifying individual needs while giving support to complainants was seen as a strategy to adapt to these individual needs. This approach demands the development of specific social skills that can either be acquired through networking with community organisations or by employing diversity policies within the organisations. 112 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) It is difficult to assess, on the basis of the answers given by representatives of equality bodies and of “similar entities” and intermediaries, which factors are primarily seen as determining the way in which the complainants are given support. It is not clear whether giving support is more likely to be determined by the ground, the severity of discrimination experienced or the individual needs of a complainant or by individual characteristics of the complainant, such as gender, age, education, social status and knowledge about rights. With regard to the quality of services in terms of how the complainants‟ diverse needs were taken into account, the assessment of the complainants‟ interviewed was mixed: since as many complainants were content with them as were not. It was seen as disadvantageous that information was not provided in an accessible way, that premises including courts, equality bodies and intermediaries were not accessible, that lawyers belonging to minority groups were not available and that the staff of equality bodies and courts did not reflect society, which would make it easier for them to accommodate particular needs. On the basis of the observations of the complainants it can be assumed that equality bodies and “similar entities” have relatively low awareness of accommodating diversity in their procedures and in their support in relation to the different grounds of discrimination and / or for different groups (Hypothesis 17). This assumption is confirmed by the description of the strategies employed by the representatives of equality bodies, “similar entities” and intermediaries. They have started to develop strategies relating to accommodation of diversity to differing extents in some areas, such as informing complainants about their services (primarily promotion-type equality bodies and intermediaries), offering legal advice and assistance (especially intermediaries) and assessing the needs of individual complainants during proceedings (primarily tribunal-type equality bodies and “similar entities”). However, there is significant room for development, as suggested by some of the complainants. 113 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 7 ACCESS TO JUSTICE BEYOND THE INDIVIDUAL CASE Access to justice beyond the individual case includes legal certainty and the promotion of the culture of rights. Legal certainty is important for enabling those professionals providing legal advice and assistance to give the complainants a realistic estimation of the outcome of a case and for motivating complainants to lodge complaints, as has been demonstrated in previous sections. Enforcement models, such as class action or amicus curiae, which allow for strategies that no longer make an individual complainant responsible for combating discrimination, could further contribute to enhancing access to justice. Developing awareness and a positive attitude to equality and the right to non- discrimination is important for establishing a culture of rights among the general population, which stimulates and encourages people to report incidents of discrimination. The examination of the fieldwork data is based on the following three hypotheses. - Hypothesis 18: Enforcement models beyond the individual rights strategy enhance access to justice. - Hypothesis 19: Uncertainty among complainants about the possible outcome of a case is a factor in under-reporting. - Hypothesis 20: A culture of rights within the general population stimulates and encourages people to report incidents of discrimination. This section first analyses to what extent enforcement models beyond the individual rights strategy are appreciated as enhancing access to justice and how far legal certainty is identified as a promotional factor for reporting cases. The second part looks into whether the complainants perceive the social environment as supportive or hostile. It also examines what equality bodies and intermediaries do to encourage the general public to develop a positive attitude towards equal treatment. 7.1 Legal certainty This section covers two aspects of legal certainty: class action and strategic litigation. The chapter focuses on the complainants‟ experiences with and opinions on class action as an example of an enforcement model that goes beyond the individual rights strategy. The views of the equality bodies and intermediaries will shed light on their possible contributions to developing legal certainty and whether they see a link between the uncertainty about the possible outcome of a case and under-reporting. 7.1.1 Perceptions of complainants of legal certainty 114 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) About a quarter of the complainants stated that their expectations of achievements with the complaint went beyond the impact at an individual level. The complainants expressed their desire to protect other potential victims against discrimination in the future, to establish equal treatment and equal rights and raise awareness of discrimination and of the institutions dealing with cases of discrimination. A few complainants interviewed (about 5% of the sample) perceived themselves as role models and by taking action and fighting discrimination they wanted to encourage others to lodge a complaint if they experienced discrimination. More than 80% of the complainants would have liked to lodge their complaint as part of a class action (see Table A-4.118). Thirteen complainants stated that their claim had been part of class action (in Austria, Bulgaria and Italy). The main arguments favouring class action concentrated around the possibility of raising a complaint above the level of the individual in order to show more power and strength, which would result in achieving more impact as well as encouraging others to fight discrimination as a group of complainants and alleviate the fears associated with complaining as an individual (see Table A- 4.119). According to complainants who had experience with peer support, it was helpful in the preparatory phase of a case and for getting through the procedure. A group of people would be able to gather more evidence and they would be able to share both the costs and the risks of such a procedure. Class action was seen as a more adequate route to justice for eliminating structural discrimination and the greater visibility and publicity of such cases could result in raising societal awareness for the problem of (structural) discrimination. The few counter arguments focused on the challenges of convincing victims of discrimination to take part in class action and on organisational issues necessary for establishing an aim and a common strategy (see Table A-4.119). 7.1.2 Views of equality bodies, “similar entities” and intermediaries on legal certainty Among equality bodies and “similar entities” class action was hardly mentioned at all during the interviews. One representative of an equality body in Austria mentioned that class action on the basis of equal treatment legislation should be introduced. Intermediaries more often referred to class action or amicus curiae. In Austria, Belgium, Finland and Italy different intermediaries – NGOs, victim support organisations and specialised lawyers – called for the introduction of class action, in Italy particularly for class action based on the ground of nationality. A trade union representative in the United Kingdom suggested improving class action procedures in courts in order to enhance the quality of 115 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) procedures. A victim support organisation in Belgium was also of the opinion that class action could contribute to better quality procedures. A similar organisation in the United Kingdom saw it contributing to equality of arms, since in discrimination cases vulnerable individuals often faced large organisations as opponents. In France class action was seen as protection against victimisation and an NGO in the United Kingdom wanted to utilise class action more and move to hypothetical comparators. Hypothetical comparators are necessary as it is not always possible to identify an actual individual whose relevant circumstances can be exactly compared to those of the person who has been discriminated against. A number of promotion-type equality bodies said that the possibility of undertaking strategic litigation was one of the criteria they used for deciding whether to offer legal advice and assistance to a complainant (see Table A- 4.72). This selection criterion was mentioned most often in Belgium. However, the strategic choice of cases was not only seen as a necessity in Belgium, but also in France and the United Kingdom. A representative of an NGO in the United Kingdom also stated that they could only support strategic cases and not all cases reported to them, due to restricted resources. In Austria the equality body suggested that strategic litigation would be necessary as the tribunal-type equality body could no longer deal with the large number of gender cases lodged with the body. In Finland strategic litigation was seen as an instrument for generating precedents which are currently comparatively rare. The equality body in the Czech Republic wanted more involvement in strategic litigation, as it only engaged in follow-up activities where strategic cases were concerned. About 30% of the intermediaries referred to the criterion of the possibility of undertaking strategic litigation as a basis for selecting which complainants are provided with legal advice and assistance (see Table A-4.73). A few intermediaries offer free legal advice but, when they do, strategic litigation plays quite an important role – especially among trade unions – in determining which cases should be supported free of charge (see Table A-7-128). Intermediaries in Belgium, Bulgaria, Finland and Italy saw strategic litigation as a tool to establish precedents and therefore model cases which could contribute to motivating other potential complainants to lodge a complaint if they experienced similar situations. In Bulgaria one NGO was of the opinion that the equality body should be more strategic in its choice of cases. Intermediaries in Italy and Bulgaria said that selecting the right cases was important for ensuring good quality legal advice and procedures, also with a view to which cases could be taken to the ECtHR (Bulgaria). The uncertainty of outcomes was addressed in relation to making the provision of legal advice more difficult. Intermediaries in Belgium and Italy saw it as an obstacle to good quality legal advice, as complainants would ask for guarantees on the outcome in order to decide whether to lodge a complaint or not. 116 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 7.1.3 Analysis The enhancement of legal certainty partly depends on the number of cases that are lodged and that finally result in precedents. Such a demonstration of how legal provisions are applied in practice can give complainants confidence to take similar cases to a court or other dispute resolution body. About one quarter of the complainants interviewed wanted to achieve a broader impact by taking their case to a dispute resolution body. Among the expected achievements were protecting others from discrimination who might experience similar situations in the future and raising awareness both of discrimination in general as well as of the institutions dealing with cases of discrimination. By trying to achieve such aims, complainants indirectly support the development of legal certainty, as such achievements could motivate further people to lodge complaints and therefore contribute to the body of case law. Class action as a strategy to raise complaints above the level of the individual was identified as important by a large number of complainants and by a few intermediaries. Representatives of equality bodies and “similar entities” seldom referred to this enforcement model. Class action was seen by complainants as a possibility of achieving better quality procedures: the more often class action is applied as a successful strategy to go beyond an individual rights strategy the more such precedents could contribute to enhancing access to justice. These perceptions suggest that class actions, as an example of enforcement models beyond the individual rights strategy, can be valuable in enabling access to justice (Hypothesis 18). The strategic choice of cases was identified by equality bodies and intermediaries as essential in generating model cases and therefore precedents, which would again result in enhanced legal certainty and motivate more complainants to report their cases. Very few intermediaries explicitly mentioned the uncertainty of outcomes as an obstacle to complainants deciding whether or not they would actually lodge a complaint (Hypothesis 19). 7.2 Promoting a culture of rights This section examines measures aimed at developing awareness of and a positive attitude towards equality and rights to non-discrimination among the general public. It shows how complainants experience the attitudes of both family and friends and the general public towards taking action in cases of discrimination and whether these perceptions influence their decisions. It provides an overview of how equality bodies and intermediaries perceive the current social and political climate towards issues of equal treatment and non- discrimination and what they do to support the development of a positive attitude towards equality and the right to non-discrimination among the general public. Furthermore, the section attempts to assess to what extent these 117 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) measures result in stimulating and encouraging people to report incidents of discrimination. 7.2.1 Perceptions of complainants of the culture of rights As stated in Section 6.2.1, family and friends were seen by complainants interviewed as the most supportive in not tacitly accepting discrimination (see Table A-4.120). Colleagues were seen as less supportive of action taken by those affected by discrimination. Even less positive were attitudes towards complainants from society at large. About 80% of the complainants were of the opinion that society did „not at all‟ or „not entirely‟ expect people who have experienced discrimination to take action against discrimination. Regarding the expectations of society in the different Member States reviewed, they are lowest in the Czech Republic, Austria and Bulgaria and highest in the United Kingdom (see Table A-4.121). In the context of this difficult picture of the status of a culture of rights, somewhat more than half of the complainants said that it had been „very easy‟ for them to decide to lodge a claim, about 20% judged their decisions as „mostly easy‟ and almost one quarter rated the decision as „not entirely‟ or „not at all‟ easy (see Table A-4.122). The rather high number of complainants who deemed it not all difficult to lodge a complaint should be placed in the context of the sample composition and therefore the personal resources available to the complainants. Among those most often giving confidence to the complainants to lodge a complaint were intermediaries, family / friends and equality bodies (see Table A-4.129) – either people close to the complainant or highly competent in the field of discrimination. About 30% of the complainants either relied on themselves or said that nobody had given them confidence to lodge a complaint. 7.2.2 Views of equality bodies, “similar entities” and intermediaries on the culture of rights Almost all the promotion-type equality bodies have a strategy to support the development of awareness of and positive attitudes towards equality and rights to non-discrimination among the general public (see Table A-4.126). About three quarters of the intermediaries work to support the promotion of a culture of rights (see Table A-4.127). NGOs, trade unions and victim support organisations are more often involved in such activities than (specialised) lawyers. Specialised lawyers seem to tend to concentrate their activities on the promotion of successful cases, through press conferences, press releases or blogs (for example Austria, Belgium and France). They also focus on networking (Austria, France, Italy and the United Kingdom) and on organising training events or doing workshops with various target groups (Belgium, Italy and the United Kingdom). Such training events or workshops sometimes seem 118 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) to result in an increase in cases reported to lawyers (for example Bulgaria and Italy). A lawyer in the United Kingdom stated that widely publicising model cases on age discrimination resulted in quite a lot of enquiries. NGOs and victim support organisations use a variety of channels, such as the internet (Austria, Belgium, Bulgaria and the Czech Republic), social media (Bulgaria and Finland), the mass media (e.g. Belgium, the Czech Republic, Finland and France) as well as campaigning (e.g. Belgium and France) in order to raise awareness of equality and non-discrimination issues in general. Many of the equality bodies and intermediaries said that they lacked the resources to employ staff skilled in public relations; resources were identified as an issue in all the eight Member States of the sample. Some intermediaries therefore engage in networking in order to strengthen their public relations capacity (Austria, Finland, France, Italy and the United Kingdom). Trade unions make use of their networks of representatives in order to provide their members with information on equality and non-discrimination issues related to employment. Intermediaries also try to participate in working or advisory groups to highlight equality and non-discrimination as important issues on the political agenda of decision-makers and opinion leaders (Finland and Italy). They also seek to influence decision-makers by sharing with them their experiences of how legal provisions are implemented and various dispute resolution mechanisms work and what needs to be changed in order to make access to justice easier and more effective for complainants (Austria, Czech Republic, Finland, France and the United Kingdom). In almost all the eight Member States intermediaries described the political and social climate as hostile towards the issue of combating discrimination or towards certain groups which are more likely to be discriminated against (e.g. Roma, religious minorities, people with intellectual disabilities and LGBT people). Furthermore, it was highlighted that public bodies would not function as role models regarding the development of anti-discrimination practices (e.g. Austria and Belgium) and would therefore not be supportive of the development of a culture of rights. Promotion-type equality bodies do sometimes seem to have difficulties in separating the strategies they employ for targeting (potential) complainants and the general public. In Austria the equality body explicitly stated that its priority was giving legal advice to complainants and not informing the general public. Nevertheless, the equality body – like promotion-type equality bodies in the other Member States as well – does target the general public. Presence in the media was stressed by several equality bodies as essential in targeting the general public (Austria, Finland, France and the United Kingdom). 119 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) They try to publicise strategic and successful cases via the media and to include information on legal provisions as well as on the mandate of the body. Factors supporting the public relations work of equality bodies and intermediaries relate to: - the image and standing of the respective organisations; - the financial and human resources; - the skills and competences of the staff; - the development of a communication strategy; - good knowledge about the target groups in order to design the messages in the right way and select the appropriate communication channels; - networking in order to diversify and enhance the resources available for public relations. Well-reasoned communication without pathos or emotions (Bulgaria and United Kingdom), the use of non-legal and non-expert language (Bulgaria and Italy) and a rights-based approach (Austria) were seen by intermediaries as positively influencing the promotion of a culture of rights. Therefore, establishing good cooperation with the media and supporting the development of knowledge and of a more sensitive approach to news on equal treatment and non- discrimination was identified as an important element in promoting a culture of rights (Austria, Finland and Italy). A proactive approach to the media was seen as advantageous by some equality bodies and intermediaries, because then the attention of the media could be re-directed to the cases and issues assessed as relevant by the professionals working in equality bodies, law firms, trade unions and civil society organisations. Intermediaries particularly mentioned that the media would sometimes present information on minorities or on discrimination in a distorted or biased way, especially with regard to the situation of Roma, LGBT people and Muslims (Bulgaria, the Czech Republic, Finland and the United Kingdom), as some journalists have not yet developed sufficient knowledge on issues related to minorities and discrimination. A challenge identified in Austria was that the media were rather reluctant to publicise cases if the complainant wanted to remain anonymous. Promotion-type equality bodies in Austria, the Czech Republic, Finland, Italy and the United Kingdom have developed specific approaches for targeting particular sections of the population. Intermediaries have also developed strategies to inform specific sections of the general public (see Table A-4.117). Training events or workshops seem to be the method most often applied with relevant stakeholders in the field, such as labour inspectors or trade union representatives, as well as works council members and employee representatives (Austria, the Czech Republic and Finland), public authorities (the Czech Republic and Italy) and organisations offering different kinds of 120 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) social services (the Czech Republic), the police, lawyers and judges, nursing staff and doctors (e.g. Austria) and journalists (the Czech Republic). The equality board in Italy tries to target young people, including pupils and students, by using innovative language and social media / networks. Intermediaries seek to target the public administration and members of the parliament via lobbying activities and advocacy work (e.g. the Czech Republic, France and Italy). This is based on the experience gained from working with the legal provisions in place, supporting different target groups in gaining access to justice, accompanying or representing complainants in different procedures and seeing the impact of the outcomes both on the individual complainant and also on defendants and discriminatory practices and structures. Some intermediaries and equality bodies explicitly target different groups of potential discriminators, such as employers, managers (e.g. the Czech Republic, France and the United Kingdom) or service providers (e.g. Austria). Some organisations focusing on disability issues offered support to or offered workshops for publishers and web designers in order to make them aware of barriers and develop strategies to overcome them for different kinds of disabilities (Austria and the United Kingdom). 7.2.3 Analysis Complainants were of the opinion that the general public was quite hostile towards people who have experienced discrimination and would to a great extent not expect them to take action against discrimination. Family and friends were perceived as much more supportive. They, together with intermediaries and equality bodies, were seen as those who had given the complainants most confidence in deciding whether or not to take action and lodge a complaint. However, most of these complainants have already undertaken the important first step of reporting the incident of discrimination they have experienced to some kind of institution. Whether they would continue and actually lodge a complaint was then most often influenced by highly competent institutions in the field of discrimination or by the immediate social environment of the complainants. The data does not allow for conclusions to be drawn on whether the attitude of the general public made it more or less difficult for the complainants to decide initially whether to report the incident of discrimination experienced (Hypothesis 20). Almost all the promotion-type equality bodies and a majority of intermediaries have developed measures to support the development of awareness of and positive attitudes towards equality and rights to non-discrimination. Intermediaries and especially promotion-type equality bodies put efforts into promoting a culture of rights. However, to what extent these efforts really have a positive effect on the reporting of incidents cannot be assessed. The fact that 121 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) equality bodies and intermediaries engage in different strategies aimed at informing the general public about the existence of equality bodies, equal treatment legislation and concrete cases shows that they presume that there is a link between the promotion of a culture of rights and the reporting of incidents of discrimination. 122 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 8 OVERALL CONCLUSIONS AND RECOMMENDATIONS 8.1 Introduction In order to provide an analytical framework for this study, ten elements for access to justice in cases of discrimination were identified. These were: the right of effective access to a dispute resolution body; the right to fair proceedings; the right to timely resolution of disputes; the right to adequate redress; conformity with the principles of efficiency and effectiveness; support to complainants in bringing forward a case (including legal support and personal support); awareness of rights and confidence among potential complainants; accommodation of diversity of complainants and the groups covered by equal treatment legislation; processes to secure legal certainty; and favourable context with regard to the principle of non-discrimination and a culture of rights. A literature review on access to justice in cases of discrimination was conducted by national experts in the eight countries selected for this research. This was supplemented with material gathered in seven further EU Member States and at a wider international level. The research team prepared a background report that brought together and analysed this material. Twenty hypotheses were developed, based on the findings of the literature review and the preparatory work for the field research. These hypotheses were tested and further developed against the findings of the field research. The field research was carried out by national experts in the eight selected countries on the basis of interviews with complainants, a small number of non- complainants, intermediaries and representatives of equality bodies and similar entities. Separate questionnaires were developed for each group of respondents with a view to exploring the experience of complainants and non- complainants and the role and perspective of intermediaries, equality bodies and other similar entities. The research team conducted quality checks on the interviews being conducted and developed the analysis of the field research findings. The number of non-complainants interviewed was very small. The sample of complainants was, by definition, drawn from those who had reported and taken forward a case of discrimination. This reflects a small minority of those who experience discrimination and draws from a group likely to have greater personal resources and support than others who experience discrimination. The sample of complainants is not representative of the whole body of complainants, given that 42% of those interviewed were identified by the equality bodies and 60% of those interviewed came from capital cities. It is important therefore to note that the field research does not purport to provide a comprehensive picture of how discrimination is being addressed. Nonetheless 123 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) the experience of this particular group of complainants does provide significant learning on access to justice in cases of discrimination. The results of the literature review and the preliminary findings of the field research were presented for peer review at a meeting of the national experts, representatives of equality bodies and intermediaries and representatives of the FRA. Conclusions and recommendations have been developed on the basis of this process. It is important to point out that these conclusions and recommendations reflect the learning from the experience of one particular sample of complainants. 8.2 Access to a dispute resolution body Two hypotheses were developed in relation to the first element for access to justice: access to a dispute resolution body. The first hypothesis is that the complexity of institutional structures, equal treatment legislation and the diversity of paths available to complainants pose obstacles to access to justice. The second hypothesis is that the geographical distance between potential complainants and dispute resolution bodies impedes access to justice. The two hypotheses are supported by the findings of both the literature review and the field research. The diversity of paths taken by complainants interviewed ranged from one single path used by all complainants in Bulgaria to seven different paths used by the complainants in Austria. Equality bodies emerge as important actors, being involved in 68% of the paths chosen by the complainants in this particular sample. The courts, too, proved to be important actors, with 18% of the complainants interviewed using the courts as their entry point. A broad spectrum of intermediaries were interviewed in the field research – in particular lawyers, NGOs and victim support organisation and to a lesser extent trade unions. Nearly 40% of the complainants in the particular sample interviewed had to make a journey of between one and five hours to reach a dispute resolution body. Many were also distant from sources of legal advice and representation. Obstacles to access to justice which were identified in relation to this element of access to a dispute resolution body were: - The complainant‟s difficulty in establishing which path to follow for access to justice and which institution to address one‟s complaint to as an entry point. 124 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - The lack of institutions with a mandate in relation to some of the grounds covered by the equal treatment legislation and the actual hierarchy between grounds in the provisions of this legislation. - The complexity of the definitions and the provisions in equal treatment legislation. - The lack of harmonisation between equal treatment legislation at the federal level and at the provincial level in Member States with such governance structures. Enabling factors for access to justice which were identified in relation to this element of access to a dispute resolution body were: - Access to legal advice prior to lodging a complaint to enable an effective navigation of the justice system and identification of best entry point. - Cooperation agreements and cross referral systems between institutions to support complainants in navigating the justice system. - Outreach services by equality bodies through regional offices, own initiative or cooperation with intermediaries to establish contact points close to potential complainants. 8.3 Procedures Four of the elements for access to justice identified for this research relate to procedures. These are fair proceedings, timely resolution of disputes, adequate redress and efficiency and effectiveness of procedures. 8.3.1 Fair procedures Three hypotheses were developed in relation to this second element for access to justice: fair procedures. The first hypothesis is that equality of arms between the complainant and the alleged perpetrator of discrimination enhances access to justice. The second hypothesis is that inadequate application of the shift of the burden of proof diminishes access to justice in cases of discrimination. The third hypothesis is that appeal procedures in cases of discrimination are sufficiently available to ensure fair proceedings. The first two hypotheses emerging from the literature review are supported by the field research. The third hypothesis emerging from the literature review did not feature significantly in the interviews for the field research. Two further hypotheses emerge from the field research. The first of these is that fair procedures are compromised in cases of discrimination by victimisation and 125 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) the fear of victimisation. The second is that distrust of the justice system and in the possibility of fair proceedings is a barrier to access to justice. Only half of the complainants from the particular sample interviewed felt that their story was „mostly‟ or „fully‟ listened to. Equality bodies emerge as the best performers in this regard. Representatives of equality bodies and intermediaries raised issues in relation to equality of arms, with intermediaries particularly critical. A number of representatives of equality bodies and intermediaries noted that, in some instances, the shift in the burden of proof is not being applied in the courts or that judges do not apply it correctly. Some intermediaries also expressed concern about the correct application of the shift of the burden of proof in tribunal-type equality bodies. Appeals procedures were not directly examined in the interviews for the field research. The literature review found that appeals against decisions of tribunal- type equality bodies and “similar entities” are not possible in many instances. This is understandable, bearing in mind that their decisions are non-binding in nature. Victimisation is found to be a barrier to access to justice and fair proceedings. Approximately one third of the respondents from equality bodies and intermediaries criticised the lack of measures to take account of the vulnerability of complainants to being subjected to victimisation. Complainants interviewed in six of the eight countries noted distrust of the justice system and its institutions. This negatively influenced their perceptions of the fairness of procedures. Obstacles to access to justice which were identified in relation to this element of fair procedures were: - Limited guarantees in relation to equality of arms for complainants. - Limitations in the application, by judges, of the shift in the burden of proof. - The lack of protection of complainants and witnesses from victimisation. - The distrust of complainants of equality bodies, the courts, “similar entities”, public bodies in general and the judicial system. Enabling factors for access to justice which were identified in relation to this element of fair procedures were: - A legal requirement on tribunal-type equality bodies and “similar entities” to ensure that the parties are on an equal footing. - Adequate and affordable (free) provision of high-quality legal advice and assistance to complainants. 126 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - A right of access for complainants to relevant information and documentation held by the person against whom the claim of discrimination is made. - Support to judges in understanding and applying the shift in the burden of proof. - Legal and other protections against victimisation and the provision of information to all complainants about their rights in this regard. - The possibility to make anonymous complainants and the attribution of sufficient powers of investigation to equality bodies and similar entities. 8.3.2 Timely resolution of disputes One hypothesis was developed in relation to this third element for access to justice: timely resolution of disputes. This hypothesis is that procedures in cases of discrimination are taking too long and complainants do not know how long they may have to wait for justice, which contributes to under-reporting. This hypothesis is supported in the field research. Two thirds of the complainants in the particular sample interviewed gave details of the duration of their cases. While the duration was less than a year for 45% of them, it was between two and three years for 40% and more than three years for 15%. Representatives of equality bodies, “similar entities” and intermediaries pointed out that duration can be influenced by the complexity of the case, the path chosen and any appeals procedure. They reported that the duration of the procedure was a factor that influenced people‟s willingness to lodge a complaint, the quality of legal support provided, the quality of the procedures and the outcomes. Victim support organisations, NGOs and trade unions were the most critical of the duration of the proceedings. Obstacles to access to justice which were identified in relation to this element of timely resolution were: - Undue delays in the procedures of the various institutions in the system of justice. - Lack of clarity about the length of the procedure to be expected by the complainant. Enabling factors for access to justice which were identified in relation to this element of timely resolution were: - Legal provisions that establish a complainant‟s right to a speedy resolution of their case. - The use of simplified procedures to enable a speedy hearing in courts of first instance. - Adequate resourcing of the relevant institutions in the justice system to avoid backlogs. - The provision of information to the complainant at an early stage in the process as to how long the case will take. 127 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) 8.3.3 Effective remedy or redress Three hypotheses were developed in relation to this fourth element for access to justice: effective remedy or redress. The first hypothesis is that the range of remedies available in discrimination cases does not include sufficient remedies that reflect the aspirations of the complainants. The outcomes most often desired by the complainants were termination of discrimination, recognition of discrimination, a favourable change in the situation and prevention of discrimination (see below). This hypothesis reflects an apparent gap between the type of remedies being sought by many complainants and the range of remedies currently available from the justice system. The second hypothesis is that the sanctions available and the compensations ordered are too low in cases of discrimination to be dissuasive and effective. The third hypothesis is that giving equality bodies the power to make legally binding decisions, as some “similar entities” have, enhances the effectiveness of remedies. These hypotheses are supported in the literature review and the field research. Complainants in the particular sample interviewed identified their priority goals as being the termination of discrimination (20%), the recognition that they were discriminated against (16%), change in their situation (14%) and the prevention of discrimination to protect others in the future (11%). Only 8% highlighted monetary compensation as their goal. Twenty-five per cent of the complainants interviewed said they did not achieve their desired outcomes and 20% felt their desired outcomes were only partially realised, while more than half felt that largely they had been. Representatives of intermediaries interviewed, and to a lesser extent representatives of equality bodies, reported that the levels of compensation were too low to be dissuasive. Representative of intermediaries interviewed pointed to the importance of decision-making bodies being able to enforce compensation payments. Obstacles to access to justice which were identified in relation to this element of effective remedy or redress were: - The lack of powers of tribunal-type equality bodies and “similar entities” to make legally binding decisions. - The absence of sufficient means to reinstate people who have experienced discrimination into the situation they had prior to that discrimination. 128 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - A lack of provisions which would enable the issuing of decisions or judgements beyond forms of financial compensation. - Low levels of compensation awarded and limitations on the compensation which can be awarded. - Institutional deficiencies in enforcing decisions and judgements once procedures are finalised. Enabling factors for access to justice which were identified in relation to this element of effective remedy or redress were: - Effective follow-up procedures by equality bodies and “similar entities” with complainants and with perpetrators after a case has been decided. - Legislation which enables tribunal-type equality bodies and “similar entities” to make legally binding decisions and ensures compensation is awarded which is proportionate, dissuasive and effective and that these bodies can make an order on those found to have discriminated to undertake an appropriate course of action. 8.3.4 Efficiency and effectiveness of procedures Three hypotheses were developed in relation to this fifth element for access to justice: efficiency and effectiveness of procedures. The first hypothesis is that innovative procedures applied by equality bodies and “similar entities” in cases of discrimination enhance the efficiency and effectiveness of procedures. The second hypothesis is that the availability of ADR procedures has a positive effect on the efficiency and effectiveness of procedures. The third hypothesis is that the lack of powers, resources and the level of independence of equality bodies undermines the efficiency and effectiveness of their procedures. The first two hypotheses emerging from the literature review were not directly examined in the fieldwork. The third hypothesis is partially supported in the field research. It emerged from the literature review on the basis of the EU Commission study on equality bodies. A fourth hypothesis emerges from the field research. This is that the knowledge, skills and values of judges in the courts, counsellors in the promotion-type equality bodies and commissioners in the tribunal-type equality bodies and the “similar entities” are important for the effectiveness and efficiency of the procedures of these bodies. 129 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Respondents from equality bodies, “similar entities” and intermediaries identified the importance of a strategic choice of cases by the relevant institutions. Respondents from these bodies in three countries noted that too few cases were being taken. Strategic litigation needs to be accompanied by a critical mass of cases. Further innovation in procedures identified in the literature review includes injunction procedures to put an end to ongoing discrimination and investigation under an equality body‟s own name in cases where there is lack of evidence ADR procedures are not directly examined in the field research and get little mention. Two intermediaries in two countries highlight their importance in workplace cases. The literature review identifies the availability of such procedures in all eight countries covered by the research and points to their contribution to faster and better outcomes. Respondents from equality bodies, “similar entities” and intermediaries highlight gaps in the powers available to equality bodies. These include the lack of powers to make binding decisions, to conduct inquiries and to oblige defendants to cooperate and to provide information. Complainants in the particular sample interviewed highlight limitations in the time that counsellors from promotion-type equality bodies were able to give them. In part this could be due to unrealistic expectations. However, respondents from promotion-type equality bodies, “similar entities” and intermediaries in almost all eight countries covered by this research point out that the resources of equality bodies are insufficient to achieve good quality outcomes. Complainants interviewed note the independence of counsellors of promotion- type equality bodies. Other than this, the independence of equality bodies does not emerge from the field research as a factor in access to justice. The literature review quotes a study which found that a high level of de facto independence is an important basis for equality bodies to carry out their tasks effectively. Complainants interviewed reported a high opinion of the professionalism of judges, counsellors and commissioners. Strong negative perceptions of judges were also reported by complainants interviewed. Respondents from equality bodies, “similar entities” and intermediaries noted that the skills and knowledge of judges and counsellors were important for quality outcomes. In five countries these respondents noted that judges lacked sufficient knowledge of equal treatment legislation and held negative attitudes towards people experiencing discrimination. Obstacles to access to justice which were identified in relation to this element of efficiency and effectiveness were: 130 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Limited evidence of innovation being used in the procedures for cases of discrimination. - Limitations in the powers accorded and inadequate resources for equality bodies. - Insufficient knowledge of and negative attitudes held by judges. Enabling factors for access to justice which were identified in relation to this element of efficiency and effectiveness were: - Legislation which adequately empowers equality bodies and secures their independence. - Adequate provision of resources to equality bodies. 8.4 Support in cases of discrimination Three of the elements for access to justice identified for this research relate to support in cases of discrimination. These are the provision of support, awareness of rights and accommodation of diversity. 8.4.1 Provision of support The provision of support covers legal advice and representation and emotional, personal and moral support. Two hypotheses were developed in relation to this sixth element for access to justice: provision of support. The first hypothesis is that legal advice and assistance are critical for complainants to navigate complex institutional systems and to achieve successful outcomes in cases of discrimination. The second hypothesis is that emotional and personal support are important in motivating and sustaining the complainant in cases of discrimination. Both of these hypotheses are found to be supported in the field research. Three quarters of the complainants in the particular sample interviewed had access to some kind of legal advice and assistance. Legal support was being utilised at all stages of the process – prior to lodging the case to navigate the system (about 33%), while lodging the case to ensure it is prepared to best effect (about 20%) and prior to and during the hearing to ensure that adequate legal arguments are presented (about 23%). Very few complainants reported having legal support after securing a decision in their case, to enable any further steps required. Complainants in the particular sample interviewed were „very content‟ (70%) or „mostly content‟ (20%) with the support they received. The independence, clarity, humanity, proficiency, efficiency and proactivity of the person providing 131 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) the support were highlighted as key characteristics. Some 10% of complainants highlighted the importance of easy accessibility to and availability of the person providing support as important. Forty per cent of complainants identified this as a weak point in the support they received. Many of the equality bodies and the NGOs interviewed appear to offer legal advice and assistance to all who seek such support, provided their case falls within the mandate of the organisations. Other equality bodies and NGOs apply a varying range of criteria to effectively ration this service. The criteria mentioned by respondents include strategic litigation, cases being in under- reported areas, cases being from under-represented groups, the economic situation of the complainant, membership by complainant of a particular organisation (trade union), chances of success and availability of resources. Obstacles to access to justice which were identified in relation to this element of support were: - Limitations in human, financial and time resources of those providing legal advice and assistance. - Costs of legal advice and assistance which cannot be recouped by the complainant and strict and excluding criteria governing legal aid. - Limited accessibility to and availability of the counsellor / lawyer providing the legal advice and assistance Enabling factors for access to justice which were identified in relation to this element of support were: - Availability and accessibility of legal advice and assistance at all stages of the process from navigating the system to dealing with a decision on the case. - Systems of cross-referral between organisations providing legal support. - Face-to-face counselling. - Qualifications of staff providing legal support and skills which encompass legal knowledge, case law and capacity to engage with the diversity of people experiencing discrimination. - Quality of the relationship developed by the counsellor / lawyer with the complainant. About half of the complainants in the particular sample interviewed had some access to emotional, personal and moral support. More than half of them received this support from family, friends or work colleagues. Promotion-type equality bodies and intermediaries also played roles in this regard. The provision of these supports was largely on an informal basis. Almost all the complainants interviewed said that they would like to make use of personal, emotional and moral support if they launched a further claim. There appears to be a very broad interpretation of personal support among some equality bodies and intermediaries which suggests a lack of understanding as to what exactly is involved in such support. Other equality 132 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) bodies and intermediaries identified these supports more accurately as supporting empowerment and stimulating the self-confidence of the complainant and involving peer support, face-to-face work, motivation and active listening. Obstacles to access to justice which were identified in relation to this element of support were: - Scarce resources which limit the potential of equality bodies and intermediaries. - Lack of understanding of what is involved in personal, moral and emotional support. - Absence of formal provision of personal, moral and emotional support. - The risks of self-exploitation and burn-out in providing personal, moral and emotional support where staff are not adequately trained and supported. Enabling factors for access to justice which were identified in relation to this element of support were: - An explicit provision of moral, emotional and personal support to complainants by equality bodies or intermediaries. - Cross-referral with and outreach to organisations which provide personal, emotional and moral support. - Staff qualifications in this field including employment of a diverse staff and use of inter-disciplinary teams. 8.4.2 Awareness of rights Two hypotheses were developed in relation to this seventh element for access to justice: awareness of rights. The first hypothesis is that low levels of awareness of rights under equal treatment legislation and of how to exercise these rights is a critical barrier for access to justice in cases of discrimination. The second hypothesis is that levels of awareness of rights differ for different groups covered by equal treatment legislation. The field research provides indirect support for these hypotheses. The complainants in the particular sample interviewed reflect significant capacity in their ability to depend on their own resources to access information on their rights. Forty per cent of the complainants interviewed stated that they depended on their own resources to access necessary information. More than 80% of the complainants interviewed felt that it was not difficult to gain access to information on their rights. This contrasts with the literature review which found that a lack of rights awareness is one of the main factors in under- 133 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) reporting, suggesting that access to information is a difficulty for most of those who experience discrimination. The media and equality bodies are named by this particular sample of complainants as the most important source of information on equal treatment legislation, followed closely by the internet and legal counsellors. The media is identified as the primary source of information on equality bodies and equality bodies are identified as the primary source of information on procedures. It is not clear to what extent equality bodies have communication strategies as in some instances representatives of the same equality body gave different answers to this question when interviewed. The communication work of equality bodies is reported by respondents to include targeting particular groups and tailoring information to their specific needs. This reflects the finding in the literature review that significant differences in levels of awareness of rights persist between different groups in society. The communication work of equality bodies is also reported by respondents to include outreach initiatives to increase their proximity to target groups, networking with NGOs and others to build their awareness and training activities to empower people to recognise discrimination. Intermediaries interviewed reported that they are less likely to have communication strategies and tend to target individuals who have already recognised their experience as discrimination. Obstacles to access to justice which were identified in relation to this element of rights awareness were: - Limited skills available among staff of the relevant organisations in relation to public relations and communication work. - The use of technical legal jargon in the information available. - Lack of knowledge as to where to go for relevant information. - The means to assess the information available. - Inadequate information on where to lodge a complaint. - Lack of information matching the particular circumstances of a complainant. Enabling factors for access to justice which were identified in relation to this element of rights awareness were: - The good standing or image of the institutions involved in the justice system. - The existence and quality of the communication strategy of the relevant institutions. - Adequate financial and human resources for the relevant institutions. - Accessibility of the information, including different languages and formats and absence of legal jargon. 134 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Knowledge about the most effective and appropriate channels of communication for different groups which are protected under the equal treatment legislation. - Achieving proximity to these groups through local offices, regular presence of representatives of relevant organisation or cooperation with NGOs. 8.4.3 Accommodation of diversity One hypothesis was developed in relation to this eighth element for access to justice: accommodation of diversity. This hypothesis is that equality bodies and “similar entities” show little awareness and concrete action regarding accommodation of diversity in their procedures and in their supports for the different grounds of discrimination and / or different groups. This hypothesis is supported in the field research. Only 10% of the complainants of the particular sample interviewed said that they had particular needs in relation to the people who supported them in their cases. The particular needs referred to by respondents related to language diversity and disability diversity and were limited in their focus to accessible premises and means of communication. This could reflect the particular resources of these complainants, a lack of awareness of diversity and how it might be accommodated by relevant organisations or the absence of needs in this area. Almost all equality bodies use different strategies to provide information to complainants from different groups. Few responded that they adapt the support services they provide to take account of diversity. Not many responded that they have procedures to assess and respond to the needs of people from different groups in relation to the legal services they provide. Intermediaries interviewed were less likely to have taken steps to accommodate diversity than equality bodies; 70% of intermediaries interviewed reported steps to take account of difference in the information they provide. In general, both equality bodies and intermediaries are more likely to take an individual approach in meeting a complainant‟s needs than an approach which also takes account of the complainant‟s group membership. The accommodation of diversity reported by equality bodies and intermediaries is limited to translation work in responding to different languages used by complainants, addressing the physical access and communication needs of people with disabilities, responding to the vulnerability of women in sexual harassment claims and taking account of individual socio-economic circumstances. Respondents demonstrated little awareness of the need for steps to be taken to adjust for the diversity of all grounds covered by the EU 135 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) equal treatment directives and to further develop steps already being taken to take full account of the practical implications of diversity on the gender, age and racial / ethnic origin grounds. Obstacles to access to justice which were identified in relation to this element of accommodating diversity were: - The absence of formal procedures to identify and respond to needs in relation to accommodation of diversity in communication, provision of support and procedures. - The lack of evidence of a response to diversity that embraces all groups. - The lack of any research reported on diversity to enable a better understanding of the practical implications of this diversity and of how to respond to these implications. Enabling factors for access to justice which were identified in relation to this element of accommodating diversity were: - Staff composition in the relevant institutions which reflects the diversity in society. - The provision of accessible information in a variety of languages and formats. - The use of physically accessible venues and websites. - Staff awareness of diversity and competence to respond to diversity. - Checklists of steps to be taken to accommodate diversity. - Networking by relevant institutions with NGOs representing different groups. - Formal procedures to engage with complainants to assess their needs and how best to respond to them. 8.5 Beyond the individual case Two of the elements for access to justice identified for this research go beyond the individual case. These are legal certainty and culture of rights. 8.5.1 Legal certainty Two hypotheses were developed in relation to this ninth element for access to justice: legal certainty. The first hypothesis is that enforcement models beyond the individual rights strategy enhance access to justice. The second hypothesis is that uncertainty among complainants about the possible outcome of a case is a factor in under-reporting. 136 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The first hypothesis is supported in the field research. A supporting hypothesis emerges from the field research that class actions are valuable in enabling access to justice. The second hypothesis stems more from the literature review rather than being supported in the field research. Strategic litigation is reported by equality bodies and intermediaries as a means of enhancing legal certainty by securing legal precedents. Strategic litigation was one criterion for deciding which cases to support for a significant number of promotion-type equality bodies. About 30% of intermediaries interviewed also referred to the use of this criterion – most particularly when free legal advice and assistance is being provided. More than 80% of the particular sample of complainants interviewed would have wished to lodge their complaints as part of a class action. The rationale given referred to the additional power, strength and impact of such an approach, to the potential for such cases to encourage others to be active against discrimination and to alleviate the fears in taking a case on your own. Intermediaries in four countries called for the introduction of legal provisions to allow for class actions to be taken in cases of discrimination. Obstacles to access to justice which were identified in relation to this element of legal certainty were: - The absence of legal provisions to allow for class actions to be taken. - A lack of information about case law made available to the public. Enabling factors for access to justice which were identified in relation to this element of legal certainty were: - Strategic litigation used as a tool to establish legal precedents. - Publication of case law. 8.5.2 Culture of rights One hypothesis was developed in relation to this tenth element for access to justice: culture of rights. This hypothesis is that a culture of rights within the general population stimulates and encourages people to report incidents of discrimination. This hypothesis is supported in the field research. Family and friends were identified by the complainants in the particular sample interviewed as most supportive of their decision to take a case, with work colleagues being identified as less supportive. About 80% of complainants interviewed said that society did „not at all‟ or „not entirely‟ expect people who have experienced discrimination to take action in response to this. In almost all eight countries covered in the research intermediaries described the political 137 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) and social climate as hostile towards combating discrimination and towards certain groups experiencing discrimination. Promotion-type equality bodies tended to have a strategy for supporting a positive attitude to equality and rights within the general public. These equality bodies tended to use brochures, websites, awareness campaigns, media presence and training workshops. Some 75% of intermediaries also have strategies to promote a positive attitude to equality and rights within the general public. Intermediaries tended to use the internet, social media, mass media, public campaigns and workshops. Obstacles to access to justice which were identified in relation to this element of culture of rights were: - The failure of public bodies to serve as role models of good practice in promoting equality and combating discrimination. - Political hostility to combating discrimination and to certain groups. - A failure by equality bodies to distinguish between strategies to inform potential complainants of their rights and strategies to support a culture of rights among the general public. This results in limited responses by equality bodies to the challenge to build a culture of rights. - The lack of resources available to equality bodies and intermediaries for this work of promoting a positive disposition to equality and rights among the general public. - Hostility to discrimination issues and to minority groups being given expression in media reports. Enabling factors for access to justice which were identified in relation to this element of culture of rights were: - The public standing of the relevant institutions. - Development of a communication strategy. - Staff skills in public education and communication. - Use of a variety of channels to communicate with different publics. - Networking with like-minded organisations to strengthen public relations capacity. - Use of feedback from those who experience discrimination to inform campaigns. - Developing cooperation with and supporting a build-up of knowledge within the media. 8.6 Recommendations Recommendations are directed towards EU Institutions and Member States, as well as equality bodies and “similar entities”. The recommendations are organised along the four sets of elements for access to justice which have been identified for this research – Access to a dispute 138 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) resolution body (right of effective access to a dispute resolution body), Procedures (fair proceedings, timely resolution of dispute, adequate redress, principles of effectiveness and efficiency), Support (legal support and personal support, awareness of rights, and accommodation of diversity), Access to justice beyond the individual case (legal certainty and culture of rights). 8.6.1 Access to a dispute resolution body It is recommended that the EU institutions: - Develop, monitor and provide a legal underpinning to standards in relation to the overall architecture, establishment and operation of equality bodies and other institutions involved in the justice system in cases of discrimination. It is recommended that the public authorities in the Member States - Review the overall architecture of the justice system for cases of discrimination and modify where necessary to minimise complexity, maximise accessibility, ensure efficiency and effectiveness and secure coverage of all grounds. - Recognise and support the role of intermediaries, in particular NGOs, in the justice system for cases of discrimination and, in particular, ensure an adequate resourcing of these bodies. - Support NGOs to develop and implement campaigns to monitor the accessibility of the justice system for cases of discrimination and to seek greater access to justice for those who experience discrimination. It is recommended that equality bodies: - Develop a competent and capable regional / local presence for their services and processes, including through supporting, networking and cooperation with local organisations as well as local offices. - Stimulate the emergence of a strong infrastructure to support access to justice, including enabling a broad range of providers of support to complainants in cases of discrimination, and of providers of information to potential complainants on their rights. - Lead processes of networking, collaboration and cross-referral between the various organisations and institutions involved in the justice system for cases of discrimination. 8.6.2 Procedures It is recommended that the EU institutions: - Progress a further development of equal treatment legislation to include provisions to enhance access to justice, particularly with regard to equality of arms, adequate redress, timely resolution of disputes, legally binding decisions of tribunal-type equality bodies and “similar entities” and powers of inquiry for tribunal-type equality bodies and promotion-type equality bodies. 139 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Continue and further develop training provision for judges and other legal professionals in relation to equal treatment law, the shift in the burden of proof and issues of discrimination and diversity. It is recommended that the public authorities in the Member States: - Review the implementation of equal treatment legislation with a view to enhancing access to justice in cases of discrimination and introduce provisions, where necessary, for the removal of hierarchies between grounds, for tribunal-type equality bodies and “similar entities” to have powers to make legally binding decisions, for tribunal-type equality bodies and promotion-type equality bodies to have powers of inquiry and to ensure adequate remedies and timely resolution of disputes. - Review training provided to judges and ensure the provisions of equal treatment legislation and awareness-raising about discrimination and diversity are included as part of this training. It is recommended that equality bodies: - Ensure the provision of easy-to-understand information on options, duration and possible outcomes in cases of discrimination for to complainants at the outset of the process of taking a case. - Implement follow-up procedures after cases of discrimination have been decided to ensure that recommendations made in relation to the cases are implemented. It is recommended that “similar entities”: - Monitor and review the accessibility of their procedures and ensure an adequate provision of information on these to potential complainants. - Implement follow-up procedures after cases of discrimination have been decided to ensure that recommendations made in relation to the cases are implemented. - Establish procedures for ensuring an equality of arms in cases of discrimination 8.6.3 Support It is recommended that the EU institutions: - Develop and implement initiatives to support knowledge of what is required to support an effective response to the diversity of complainants in the provision of information, in the support provided and in procedures followed in cases of discrimination. These initiatives should enable good practice in accommodating diversity of complainants within justice systems dealing with cases of discrimination. It is recommended that the public authorities in the Member States: 140 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Develop a means to assess the resources required by the various institutions in the justice system for cases of discrimination and ensure that adequate resources are made available. - Stimulate and support the development and formal provision of emotional, personal and moral support to complainants in cases of discrimination. - Support and enhance the capacity of intermediaries to take initiatives to build awareness among potential complainants of their rights and to provide effective legal and personal support to complainants in cases of discrimination. It is recommended that equality bodies: - Establish procedures for assessing and responding to the practical implications of the diversity of complainants in their provision of information, in the legal and personal support they provide and in their procedures. It is recommended that “similar entities”: - Establish procedures for assessing and responding to the practical implications of the diversity of complainants in their provision of information and in their procedures. 8.6.4 Access to justice beyond the individual case It is recommended that the EU institutions: - Develop a process of documentation of case law in the field of non- discrimination and ensure that this case law is accessible and made widely available. It is recommended that the public authorities in the Member States - Introduce provisions in legislation, where necessary, for enforceable duties on public bodies to have due regard to equality in carrying out their functions, and for complainants, NGOs and equality bodies to be able to take class actions. - Include awareness-raising about discrimination and diversity as part of all education provision and provision of vocational training. - Support and enhance the capacity of intermediaries, in particular NGOs, to develop and implement initiatives to build a culture of rights in the general population. It is recommended that equality bodies: - Develop strategic litigation processes to enhance legal certainty alongside dealing with a critical mass of cases sufficient to ensure a culture of compliance among employers and service providers. - Develop and implement strategic approaches to building a culture of rights and a positive attitude in society to diversity and to those who exercise their rights, including particular initiatives that target key influencers. 141 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) List of references I. Council Directives - Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Race Directive), Official Journal (OJ) 2000 L 180. - Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (Employment Directive), OJ 2000 L 303. - Council Directive 2002/73/EC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 2002 L 269. - Council Directive 2004/113/EC implementing the principles of equal treatment between men and women in the access to and supply of goods and services (Gender Goods and Services Directive), OJ 2004 L 373. - Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Gender Equality Directive (recast)), OJ 2006 L 204. II. Literature and reports – not country-specific - Ammer, M., Crowley, N., Liegl, B., Holzleithner, E., Wladasch, K., Yesilkagit, K., (2010) Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC – Synthesis report http://ec.europa.eu/social/BlobServlet?docId=6454&langId=en - Australian Human Rights Commission (2010): Our agenda. Commission work plan 2010-2012. http://www.hreoc.gov.au/pdf/about/agenda2010_2012.pdf - Commission on Legal Empowerment of the Poor and United Nations Development Programme (2008) Making the law work for everyone. www.undp.org/legalempowerment/report/Making_the_Law_Work_for_Every one.pdf - Council of Europe, European Commission on Racism and Intolerance (ECRI) (1997) General Policy Recommendation No 2 on Specialised Bodies to Combat Racism, Xenophobia, Antisemitism and Intolerance at National Level, 13 June 1997 http://ec.europa.eu/social/BlobServlet?docId=6454&langId=en http://www.hreoc.gov.au/pdf/about/agenda2010_2012.pdf http://www.undp.org/legalempowerment/report/Making_the_Law_Work_for_Everyone.pdf http://www.undp.org/legalempowerment/report/Making_the_Law_Work_for_Everyone.pdf 142 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n 2/rec02en.pdf - Council of Europe, European Commission on Racism and Intolerance (ECRI) (2002), General Policy Recommendation No. 7 on National Legislation to Combat Racism And Racial Discrimination, 13 December 2002 http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n 7/ecri03-8%20recommendation%20nr%207.pdf - Equinet (2010) Influencing the law through legal proceedings. The powers and practices of equality bodies, Equinet Report. www.equineteurope.org/powers_practices_final_draft_240910_1.pdf - European Commission (2009a) Discrimination in the European Union 2009. Special Eurobarometer 317. http://ec.europa.eu/public_opinion/archives/ebs/ebs_317_en.pdf - European Commission (2009b) Sex discrimination in the access to and supply of goods and services and the transposition of Directive 2004/113/EC/EC, report prepared for the European Network of Legal Experts in the field of Gender Equality by Susanne Burri and Aileen McColgan. - European Commission (2009c) The transposition of recast Directive 2006/54/EC, report prepared for the European Network of Legal Experts in the field of Gender Equality by Susanne Burri and Sacha Préchal. - European Commission (2010) Developing anti-discrimination law in Europe – The 27 EU Member States, Croatia, the Former Yugoslav Republic of Macedonia and Turkey compared – report prepared by Isabelle Chopin and Thien Uyen Do for the European Network of Legal Experts in the non- discrimination field. www.non-discrimination.net/content/media/Comparitive%20EN%2017052011.pdf - European Commission on Racism and Intolerance (ECRI) (1997) General policy recommendation No 2 on specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level, adopted on 13 June 1997, www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n2/rec0 2en.pdf - European Commission on Racism and Intolerance (ECRI) (2002) General policy recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted on 13 December 2002, www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n7/ecri 03-8%20recommendation%20nr%207.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n2/rec02en.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n2/rec02en.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n7/ecri03-8%20recommendation%20nr%207.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n7/ecri03-8%20recommendation%20nr%207.pdf http://www.equineteurope.org/powers_practices_final_draft_240910_1.pdf http://ec.europa.eu/public_opinion/archives/ebs/ebs_317_en.pdf http://www.non-discrimination.net/content/media/Comparitive%20EN%2017052011.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n2/rec02en.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n2/rec02en.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n7/ecri03-8%20recommendation%20nr%207.pdf http://www.coe.int/t/dghl/monitoring/ecri/activities/gpr/en/recommendation_n7/ecri03-8%20recommendation%20nr%207.pdf 143 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - European Commission on Racism and Intolerance (ECRI), country-by- country monitoring reports (reports include information and assessments of access to justice for victims of racist discrimination). www.coe.int/t/dghl/monitoring/ecri/activities/countrybycountry_en.asp - European Foundation Centre (2010) Study on challenges and good practices in the implementation of the Convention on the Rights of Persons with Disabilities, www.study- uncrpd.eu/files/repository/20110201165756_VC20081214_FINAL_REPORT _web_010211.pdf - European Roma Rights Centre (ERRC), Interights, Migration Policy Group (MPG) (2004) Strategic litigation in race discrimination cases. From principles to practice. www.migpolgroup.com/public/docs/57.StrategicLitigationofRaceDiscriminatio ninEurope-fromPrinciplestoPractice_2004.pdf - European Union Agency for Fundamental Rights (FRA) (2010a) EU – MIDIS. Data in focus report. Rights awareness and equality bodies, www.fra.europa.eu/fraWebsite/attachments/EU- MIDIS_RIGHTS_AWARENESS_EN.PDF - European Union Agency for Fundamental Rights (FRA) (2010b) National human rights institutions in the EU Member States, http://fra.europa.eu/fraWebsite/attachments/NHRI_en.pdf - European Union Agency for Fundamental Rights (FRA) (2011a) Country thematic studies on access to justice, www.fra.europa.eu/fraWebsite/research/background_cr/cr_access-to- justice-2011_en.htm - European Union Agency for Fundamental Rights (FRA) (2011b) Access to justice in Europe: an overview of challenges and opportunities, http://fra.europa.eu/fraWebsite/attachments/report-access-to-justice_EN.pdf - Jacobsen, B. D. (2010) Assistance to victims of discrimination by equality bodies of the EU member states. Djoef, Copenhagen. - Mental Disability Advocacy Centre (2011), Building the architecture for change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities. Budapest, www.mdac.info/webfm_send/77 - Milieu (2011), Comparative study on access to justice in gender equality and antidiscrimination law – Synthesis report, European Commission, http://www.coe.int/t/dghl/monitoring/ecri/activities/countrybycountry_en.asp http://www.migpolgroup.com/public/docs/57.StrategicLitigationofRaceDiscriminationinEurope-fromPrinciplestoPractice_2004.pdf http://www.migpolgroup.com/public/docs/57.StrategicLitigationofRaceDiscriminationinEurope-fromPrinciplestoPractice_2004.pdf http://www.fra.europa.eu/fraWebsite/attachments/EU-MIDIS_RIGHTS_AWARENESS_EN.PDF http://www.fra.europa.eu/fraWebsite/attachments/EU-MIDIS_RIGHTS_AWARENESS_EN.PDF http://fra.europa.eu/fraWebsite/attachments/NHRI_en.pdf http://www.fra.europa.eu/fraWebsite/research/background_cr/cr_access-to-justice-2011_en.htm http://www.fra.europa.eu/fraWebsite/research/background_cr/cr_access-to-justice-2011_en.htm http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub_access-to-justice_en.htm http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub_access-to-justice_en.htm http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub_access-to-justice_en.htm http://fra.europa.eu/fraWebsite/attachments/report-access-to-justice_EN.pdf http://www.mdac.info/webfm_send/77 144 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) http://ec.europa.eu/justice/gender- equality/files/final_report_access_to_justice_final_en.pdf - Office for Democratic Institutions and Human Rights (ODIHR) - Legislationline, case law, www.legislationline.org/topics/organisation/4/topic/8/subtopic/27 - Schiavetta, S. (2004) „The relationship between e-ADR and Article 6 of the European Convention of Human Rights pursuant to the case law of the European Court of Human Rights, Chapter 5, Conclusions‟ in Electronic law journal. www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/schiavetta/ - United Nations Development Programme (UNDP) (2004) Access to justice. Practice note, www.undp.org/governance/docs/Justice_PN_English.pdf - United Nations Development Programme (UNDP) (2005) Programming for justice: access for all, www.globalrights.org/site/DocServer/UNDP_Justice_Guides_ProgrammingF orJustice-AccessForAll.pdf?docID=11143 - United Nations (UN), General Assembly (GA), Principles relating to the status of national institutions (the Paris Principles), UNGA 48/134, 20 December 1993 www2.ohchr.org/english/law/parisprinciples.htm III. Country-specific literature and reports – Austria, Belgium, Bulgaria, Czech Republic, Finland, France, Italy, United Kingdom a) AUSTRIA Unpublished FRALEX 62 reports - Kozma, J., Buchinger, K., (2008) Thematic legal study on national human rights institutions and human rights organisations – Austria, European Union Agency for Fundamental Rights (FRA). - Kozma, J., Lubich, A., (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – Austria, FRA. - Wladasch, K., (2009) Thematic legal study on impact of Race Equality Directive – Austria, FRA. 62 FRALEX – FRA network of legal experts providing research for reports and studies on legal issues concerning fundamental rights in the European Union, during 2008-2010, replaced in 2011 by FRANET, see fra.europa.eu/fraWebsite/research/franet/franet_en.htm. http://ec.europa.eu/justice/gender-equality/files/final_report_access_to_justice_final_en.pdf http://ec.europa.eu/justice/gender-equality/files/final_report_access_to_justice_final_en.pdf http://www.osce.org/odihr/ http://www.legislationline.org/topics/organisation/4/topic/8/subtopic/27 http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/schiavetta/ http://www.undp.org/governance/docs/Justice_PN_English.pdf http://www.globalrights.org/site/DocServer/UNDP_Justice_Guides_ProgrammingForJustice-AccessForAll.pdf?docID=11143 http://www.globalrights.org/site/DocServer/UNDP_Justice_Guides_ProgrammingForJustice-AccessForAll.pdf?docID=11143 http://www2.ohchr.org/english/law/parisprinciples.htm 145 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Unpublished country study on equality bodies set up under EU non- discrimination directives - Ammer, M., Edthofer, J., Liegl, B., Wladasch, K., (2010), Equality bodies country fiche, Austria, Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC (VT/2009/012), European Commission. Other reports and literature – published - Amon-Konrath, C., Gutschlhofer, B., (2009), „Vergleichsverhandlungen der Gleichbehandlungsanwaltschaft – Kriterien für einen wirksamen, angemessenen und abschreckenden Schadenersatz‟ („Settlement negotiations by the Ombud for Equal Treatment – criteria for effective, proportionate and dissuasive compensation‟), in Das Recht der Arbeit. p. 543ff. - Austria, Ministry for Women and the Civil Service within the Austrian Federal Chancellery (Bundesministerium für Frauen und den öffentlichen Dienst im Bundeskanzleramt) (2010), Gleichbehandlungsbericht für die Privatwirtschaft 2008/2009. Teil I (Equality report for the private sector 2008/2009. Part I), www.bka.gv.at/DocView.axd?CobId=41942 - Austria, Ministry of Economics and Labour (Bundesministerium für Wirtschaft und Arbeit) / Austrian Federal Chancellery: Women (Bundeskanzleramt: Frauen) (2008) Gleichbehandlungsbericht für die Privatwirtschaft 2006 und 2007. Teil I. Gleichbehandlungskommission, Bundesministerium für Wirtschaft und Arbeit und Beiträge der Interessenvertretungen (Equality report for the private sector 2006 and 2007. Part I. Equal Treatment Commission, Federal Ministry of Economics and Labour and contributions from advocacy groups), www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=33802 - Austria, Ministry of Health and Women (Bundesministerium für Gesundheit und Frauen) and Ministry of Economics and Labour (Bundesministerium für Wirtschaft und Arbeit) (2006) Gemeinsamer Bericht 2004 und 2005: Teil I – Gleichbehandlungskommission und Bundesministerium für Wirtschaft und Arbeit (Joint report 2004 and 2005: Part I – Equal Treatment Commission and Federal Ministry of Economy and Labour), www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=23402 - Austria, Ombud for Equal Treatment (Gleichbehandlungsanwaltschaft Österreich) (2010) Gemeinsamer Bericht 2008/2009 (Joint report 2008/2009). www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=42115 http://www.bka.gv.at/DocView.axd?CobId=41942 http://www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=33802 http://www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=23402 http://www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=42115 146 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Austria, Ombud for Equal Treatment (Gleichbehandlungsanwaltschaft Österreich) (2010) Stellungnahme zur Novelle des Gleichbehandlungsgesetzes bzw. des Bundesgesetzes über die Gleichbehandlungskommission und die Gleichbehandlungsanwaltschaft (Statement on the amendment of the Equal Treatment Act and Federal Act on the Equal Treatment Commission and the Ombud for Equal Treatment), www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00179_16/fnameorig_19432 1.html - Austria, Ombud for Equal Treatment (Gleichbehandlungsanwaltschaft Österreich) (2004) Tätigkeitsbericht der Anwaltschaft für Gleichbehandlungsfragen 2003 (Activity report of the Ombud for Equal Treatment 2003), www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=20476 - Austria, Ombudsman Board (Volksanwaltschaft) (2010) Bericht der Volksanwaltschaft an den Nationalrat und an den Bundesrat (Report of the Ombudsman Board to the National Assembly and the Federal Council). www.volksanw.gv.at/downloads/2e9p7/PB33-Hauptteil.pdf - Austria, Ombudsman Board (Volksanwaltschaft) Volksanwaltschaft – Berichte Länder (Ombudsman Board – Länder reports) www.volksanw.gv.at/berichte/berichte-laender - Austria, Ombudsman Board (Volksanwaltschaft) (2010) Stellungnahme zur Novelle des Gleichbehandlungsgesetzes bzw. des Bundesgesetzes über die Gleichbehandlungskommission und die Gleichbehandlungsanwaltschaft (Statement on the amendment of the Equal Treatment Act and Federal Act on the Equal Treatment Commission and the Ombud for Equal Treatment). www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00179_01/imfname_193142 .pdf - European Commission on Racism and Intolerance (ECRI) (2010), Report on Austria, www.coe.int/t/dghl/monitoring/ecri/country-by-country/austria/AUT- CbC-IV-2010-002-ENG.pdf - Frey, V. (2008), Die Rolle von NGOs bei der Bekämpfung von Diskriminierungen (The role of NGOs in combating discrimination), juridikum 2008, p.53ff. - Ludwig, A. (2009), Schadenersatz bei intersektioneller Diskriminierung (Compensation in cases of intersectional discrimination), in Das Recht der Arbeit 2009. p.276ff. http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00179_16/fnameorig_194321.html http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00179_16/fnameorig_194321.html http://www.gleichbehandlungsanwaltschaft.at/DocView.axd?CobId=20476 http://www.volksanw.gv.at/downloads/2e9p7/PB33-Hauptteil.pdf http://www.volksanw.gv.at/berichte/berichte-laender http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00179_01/imfname_193142.pdf http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00179_01/imfname_193142.pdf http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/austria/AUT-CbC-IV-2010-002-ENG.pdf http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/austria/AUT-CbC-IV-2010-002-ENG.pdf 147 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Ludwig, A. (2010) Beweislastverteilung im Gleichbehandlungsrecht (Allocating the burden of proof in equality law), in Das Recht der Arbeit 2010, p.167ff. - Matt, E. (2009) Das Verfahren vor der Gleichbehandlungskommission (Proceedings of the Equal Treatment Commission), in Das Recht der Arbeit 2009, p.442ff. Case law - Austria, Constitutional Court (Verfassungsgerichtshof) VfGH, Judgment, 29 November 2010, B 1952/08 (decision - No possibility to appeal against ETC opinions and decisions due to a lack of qualification as Bescheid). - Austria, Supreme Court (Oberster Gerichtshof), OGH, 9ObA177/07f, 9 July 2008 (application of the burden of proof). b) BELGIUM Unpublished FRALEX reports - Lemmens, P. (2008) Thematic legal study on national human rights institutions and human rights organisations – Belgium, FRA. - Lemmens, P., Heylen, B., Vandeven, E. and Vrielink J. (2010) Legal study on homophobia and discrimination on grounds of sexual orientation, report on Belgium, FRA, June 2010 (updated from February 2008). - Lemmens, P., Merrigan, M., Schmitt, P. (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – Belgium, FRA. - Lemmens, P., Schmitt, P., (2009) Thematic legal study on impact of the Race Equality Directive – Belgium, FRA. Unpublished country study on equality bodies set up under EU non- discrimination directives - Lemmens, P., Merrigan, M. (2010) Equality bodies country fiche, Belgium, Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 006/54/EC (VT/2009/012), European Commission. Other reports and literature – published - Belgium, Ministry of Justice (Service public fédéral, Justice/Federale Overheidsdienst, Justitie), (2009) Un meilleur accès à la justice (Better 148 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) access to justice), Service de Communication et Documentation, (available at www.just.fgov.be). - Centre for Equal Opportunities and Opposition to Racism (CEOOR), annual reports 2003 to 2009. Available at: www.diversiteit.be (Flemish) or www.diversite.be (French), CEOOR, Brussels. - CEOOR (1999) Gelijkwaardig. Balans 1993-1999 en perspectieven van het integratiebeleid en van de racismebestrijding (Equal treatment. The balance of 1993-1999 and perspectives on integration and anti-racism policies), CEOOR, Brussels. - CEOOR (2006) Evaluatieverslag federale tienpuntenplan tegen racisme (Evaluation report of the Federal Action Plan against racism), CEOOR, Brussels, point 1.1. - CEOOR (1999) De wet van 30 juli 1981 tot bestraffing van bepaalde door racisme of xenofobie ingegeven daden: rechtspraak antiracisme (Act of 30 July 1981 on certain acts of racism or xenophobia: case law), Brussels, CEOOR. - CEOOR, Combat Poverty, Insecurity and Social Exclusion Service (Service de lutte contre la pauvreté, la précarité et l'exclusion sociale), „Répétibilité des honoraires d‟avocat: vers un meilleur accès à la justice?‟ (Reimbursement of lawyers‟ fees: towards better access to justice) in Lutte contre la pauvreté – Rapport 2008-2009, Partie 1 (Combat poverty – 2008- 2009 report, Part I), pp. 45-57. - De Hert, P. and Gellert, R. (2010) Comparative study on access to justice in gender equality and antidiscrimination law – national report on Belgium, Report prepared for Milieu, under contract to the European Commission. - European Commission against Racism and Intolerance (ECRI) (2008), Report on Belgium, available at: http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_04/04_CbC_eng/BEL- CbC-IV-2009-018-ENG.pdf - MRAX (2006), Réforme des lois contre les discriminations. Analyse critique du projet de loi visant à lutter contre les discriminations racistes (Amendments to the antidiscrimination laws. Critical analysis of the bill amending the antiracism act), MRAX, Brussels. - MRAX, Activity report (2009), available at: www.mrax.be/spip.php?article854 - Institute for the Equality of Women and Men (IEWM), Annual reports 2004 to 2009, available at: http://igvm-iefh.belgium.be/ http://www.diversiteit.be/ http://www.diversite.be/ http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_04/04_CbC_eng/BEL-CbC-IV-2009-018-ENG.pdf http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_04/04_CbC_eng/BEL-CbC-IV-2009-018-ENG.pdf http://www.mrax.be/spip.php?article854 http://igvm-iefh.belgium.be/ 149 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Ackaert, J., and Van Craen, M. (2005) Onveiligheid en etnische herkomst: de stereotypering voorbij (Insecurity and ethnic origin: transcending stereotypes), Panopticon, nr. 4, 11-29. - Allemeersch, B. (2008) Een geactualiseerde inleiding tot de bemiddelingswet (A current introduction to the mediation act), in Van Ransbeeck, R. (ed.), Bemiddeling (Mediation), Brugge, die Keure, pp. 19-67. - Boonen. S. and Lechanteur, C., Aide juridique et assistance judiciaire (Legal aid and legal assistance), in De Leval, G. (ed.), L‟accès à la justice (Access to justice), Anthemis, Liège, 2007, 157-188. - Brion, F. et al, (2001) Mon délit? Mon origine. Criminalité et criminalisation de l‟immigration (My crime? My background. Crime and criminalisation of immigration), Brussels, De Boeck Université. - Caccamisi, D. (2007) Quand “faire que ce qui est juste soit plus fort” conduit à paralyser la lutte contre la discrimination raciale... Vers une dépénalisation partielle de la discrimination raciale (When “doing what‟s right is stronger” leads to paralysing the struggle against racial discrimination. Towards a partial decriminalisation of racial discrimination) in Cartuyvels, Y. Dumont, H. Ost, F., Van de Kerchove, M. and Van Drooghenbroeck, S. (eds.) Les droits de l‟homme, bouclier ou épée du droit pénal? (Human rights, the sword or the shield of criminal law?), Brussels, FUSL, 427-495. - Clycq, N. Van keukentafel tot „God‟. Belgische, Italiaanse en Marokkaanse ouders over identiteit en opvoeding (From the kitchen table to „God‟. Belgian, Italian, and Moroccan parents on identity and child rearing), Antwerp, Garant, 2009. - De Prins, D., Sottiaux, S., and Vrielink, J. (2005) Handboek discriminatierecht (Handbook of discrimination law), Mechelen, Kluwer. - Flagothier, J.-L. (2007) L‟assurance protection juridique. Instrument d‟accès au droit (Legal insurance. An instrument of access to justice), in De Leval, G. (ed.) L‟accès à la justice (Access to justice), Anthemis, Liège, 189-203. - Hebberecht, P. (1994) Onveiligheidsgevoelens en slachtofferschap bij Marokkaanse en Turkse migranten (Insecurity and victimhood amongst Moroccan and Turkish migrants), Panopticon, nr. 6, 544-570. - Hubeau, B., and Van Haegenborgh, M., (2000) De behandeling van racismeklachten door lokale meldpunten. Instrumenten in minderhedenbeleid en racisme-bestrijding? (The treatment of racism complaints by local offices. Tools for minority policies and anti-racism?) in 150 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Hubeau, B. and Foblets, M.-C. (eds.) Migratie en migrantenrecht, recente ontwikkelingen (Migration and migration law, recent developments), Brugge, die Keure. - Ouali, N., and Carles, I. (2008) The use of racial antidiscrimination laws in Belgium: a gender perspective – final report, EU Sixth Framework Programme, 2005-2007. - Renson, B., (1985) Racisme, wet en publieke opinie (Racism, the law and public opinion), T. Vreemd, nr. 32, 3-22. - Vrielink, J. (2010) Van haat gesproken? Een rechtsantropologisch onderzoek naar de bestrijding van rasgerelateerde uitingsdelicten in België (Speaking of hatred? A legal anthropological study of the fight against race- related speech crimes in Belgium), Antwerpen, Maklu. - Vrielink, J., and De Prins, D. (2009) Die Wiederkehr des Gleichen. Het Grondwettelijk Hof en de (federale) discriminatiewetgeving (Die Wiederkehr des Gleichen. The Constitutional Court and (federal) discrimination legislation), Tijdschrift voor Bestuurswetenschappen en Publiekrecht, nr. 10, 579-614. - Vrielink,J. and Claes, E. (2006) Antiracisme, strafrecht en herstelbemiddeling (Antiracism, criminal law and mediation), Nieuwsbrief Suggnome, nr. 3 (themanummer „Racisme en bemiddeling‟), 3-13. - Wagner, K., (2001) Collectieve acties in het Belgisch recht (Collective action in Belgian law) P&B/RDJP, 150-182. BULGARIA Unpublished FRALEX reports - Kukova, S., (2008) Thematic legal study on national human rights institutions and human rights organisations – Bulgaria, FRA. - Kukova, S., (2009), Thematic legal study on impact of the Race Equality Directive – Bulgaria, FRA. - Kukova, S., (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – Bulgaria, FRA. - Kukova, S., (2010) Legal study on homophobia and discrimination on grounds of sexual orientation, report on Bulgaria, FRA, (updated from February 2008). 151 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Unpublished country study on equality bodies set up under EU non- discrimination directives - Ilieva, M., Simeonova, D. (2010) Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC (VT/2009/012), Bulgaria, European Commission. Other reports and literature – published - Bulgaria, Protection Against Discrimination Commission (Комисия за защита от дискриминация), Annual report 2009, available at: http://kzd- nondiscrimination.com/start/index.php?option=com_content&task=blogsecti on&id=5&Itemid=9&lang=en - Bulgaria, Protection Against Discrimination Commission (Комисия за защита от дискриминация), Annual report 2008, available at: http://kzd- nondiscrimination.com/start/index.php?option=com_content&task=blogsecti on&id=5&Itemid=9&lang=en - Bulgaria, Protection Against Discrimination Commission (Комисия за защита от дискриминация), Annual report 2007, available at: http://kzd- nondiscrimination.com/start/index.php?option=com_content&task=blogsecti on&id=5&Itemid=9&lang=en - Bulgarian Helsinki Committee, Annual human rights report 2010, available at http://bghelsinki.org/index.php?module=resources&lg=bg&id=961 - European Commission on Racism and Intolerance (ECRI) (2009), Report on Bulgaria , available at: www.coe.int/t/dghl/monitoring/ecri/country-by- country/bulgaria/BGR-CbC-IV-2009-002-ENG.pdf - Equinet Europe (2010) The Bulgarian equality body in the spotlight, interview with Kemal Eyup, Chairman of the Bulgarian Commission for Protection against Discrimination, available at: www.equineteurope.org/609279.html - European Network of Legal Experts in the non-discrimination field (2009a) Country report Bulgaria, Enforcing the law, available at: www.non- discrimination.net/content/media/2009-BG- Country%20Report%20LN_final.pdf - European Network of Legal Experts in the non-discrimination field (2009b) Gender equality law in 30 European countries, available at: http://ec.europa.eu/social/main.jsp?catId=641&langId=en&moreDocuments= yes http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://kzd-nondiscrimination.com/start/index.php?option=com_content&task=blogsection&id=5&Itemid=9?=en http://bghelsinki.org/index.php?module=resources&lg=bg&id=961 http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/bulgaria/BGR-CbC-IV-2009-002-ENG.pdf http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/bulgaria/BGR-CbC-IV-2009-002-ENG.pdf http://www.equineteurope.org/609279.html http://www.non-discrimination.net/content/media/2009-BG-Country%20Report%20LN_final.pdf http://www.non-discrimination.net/content/media/2009-BG-Country%20Report%20LN_final.pdf http://www.non-discrimination.net/content/media/2009-BG-Country%20Report%20LN_final.pdf http://ec.europa.eu/social/main.jsp?catId=641&langId=en&moreDocuments=yes http://ec.europa.eu/social/main.jsp?catId=641&langId=en&moreDocuments=yes 152 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Kanev, K. (2009) Discrimination and protection from discrimination in the attitudes of the majority and among the vulnerable groups in Bulgaria, www.bghelsinki.org/upload/resources/Discrimination_EffectivenessADregime.pdf CZECH REPUBLIC Unpublished FRALEX reports - Honuskova, V., Sturma, P. (2008) Thematic legal study on national human rights institutions and human rights organisations – Czech Republic, FRA. - Honuskova, V., Sturma, P. (2009) Thematic legal study on impact of the Race Equality Directive – Czech Republic, FRA - Honuskova, V., Sturma, P. (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – Czech Republic, FRA. - Honuskova, V., Sturma, P. (2010) Legal study on homophobia and discrimination on grounds of sexual orientation, report on Czech Republic, FRA (updated from February 2008). Unpublished country study on equality bodies set up under EU non- discrimination directives - Boučková, P. (2010) Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC (VT/2009/012), Czech Republic, European Commission. Other reports and literature – published Summary reports by the Public Defender of Rights - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2009 (Report on the state of human rights in the Czech Republic in 2009) www.vlada.cz/scripts/file.php?id=86729 - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2008 (Report on the state of human rights in the Czech Republic in 2008) www.vlada.cz/scripts/file.php?id=74788 - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2007 (Report on the state of human rights in the Czech Republic in 2007) http://www.bghelsinki.org/upload/resources/Discrimination_EffectivenessADregime.pdf http://www.vlada.cz/scripts/file.php?id=86729 http://www.vlada.cz/scripts/file.php?id=74788 153 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rlp/dokumenty/zpravy- lidska-prava-cr/zprava-o-stavu-lidskych-prav-v-cr-v-roce-2007-38547/ - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2006 (Report on the state of human rights in the Czech Republic in 2006) www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rlp/dokumenty/zpravy- lidska-prava-cr/zprava-o-stavu-lidskych-prav-v-cr-v-roce-2006-24032/ - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2005 (Report on the state of human rights in the Czech Republic in 2005) www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava- cr/zprava2005.pdf - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2004 (Report on the state of human rights in the Czech Republic in 2004) www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava- cr/zprava2004_1.pdf - Czech Republic, Government of the Czech Republic, Zpráva o stavu lidských práv v ČR v roce 2003 (Report on the state of human rights in the Czech Republic in 2003) www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava- cr/zprava2003_1.pdf - Czech Republic, Public Defender of Rights (Veřejný ochránce práv) Souhrnná zpráva o činnosti veřejného ochránce práv 2010 (Summary report on the activities of the Public Defender of Rights 2010) www.ochrance.cz/fileadmin/user_upload/zpravy_pro_poslaneckou_snemovn u/Souhrnna_zprava_VOP_2010.pdf - Czech Republic, Public Defender of Rights (Veřejný ochránce práv) Souhrnná zpráva o činnosti veřejného ochránce práv 2009 (Summary report on the activities of the Public Defender of Rights 2009) www.ochrance.cz/fileadmin/user_upload/zpravy_pro_poslaneckou_snemovn u/Souhrnna_zprava_VOP_2009.PDF - European Commission on Racism and Intolerance (ECRI) (2009) Report on the Czech Republic, available at: www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Czech_Republic/CZE- CbC-IV-2009-030-ENG.pdf - European Commission on Racism and Intolerance (ECRI) (2003) Report on the Czech Republic, available at: http://www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rlp/dokumenty/zpravy-lidska-prava-cr/zprava-o-stavu-lidskych-prav-v-cr-v-roce-2007-38547/ http://www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rlp/dokumenty/zpravy-lidska-prava-cr/zprava-o-stavu-lidskych-prav-v-cr-v-roce-2007-38547/ http://www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rlp/dokumenty/zpravy-lidska-prava-cr/zprava-o-stavu-lidskych-prav-v-cr-v-roce-2006-24032/ http://www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rlp/dokumenty/zpravy-lidska-prava-cr/zprava-o-stavu-lidskych-prav-v-cr-v-roce-2006-24032/ http://www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava-cr/zprava2005.pdf http://www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava-cr/zprava2005.pdf http://www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava-cr/zprava2004_1.pdf http://www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava-cr/zprava2004_1.pdf http://www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava-cr/zprava2003_1.pdf http://www.vlada.cz/assets/ppov/rlp/dokumenty/zpravy-lidska-prava-cr/zprava2003_1.pdf http://www.ochrance.cz/fileadmin/user_upload/zpravy_pro_poslaneckou_snemovnu/Souhrnna_zprava_VOP_2010.pdf http://www.ochrance.cz/fileadmin/user_upload/zpravy_pro_poslaneckou_snemovnu/Souhrnna_zprava_VOP_2010.pdf http://www.ochrance.cz/fileadmin/user_upload/zpravy_pro_poslaneckou_snemovnu/Souhrnna_zprava_VOP_2009.PDF http://www.ochrance.cz/fileadmin/user_upload/zpravy_pro_poslaneckou_snemovnu/Souhrnna_zprava_VOP_2009.PDF http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Czech_Republic/CZE-CbC-IV-2009-030-ENG.pdf http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Czech_Republic/CZE-CbC-IV-2009-030-ENG.pdf 154 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_03/03_CbC_eng/CZE- CbC-III-2004-22-ENG.pdf - European Commission on Racism and Intolerance (ECRI) (1999) Report on the Czech Republic, available at: http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_02/02_CbC_eng/02-cbc- czechrepublic-eng.pdf - European Commission on Racism and Intolerance (ECRI) (1997) Report on the Czech Republic, available at: http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_01/01_CbC_eng/01-cbc- czechrepublic-eng.pdf - League for Human Rights (Liga lidských práv) (2007) Právní opatření proti protiprávní sterilizaci (Legal measures against unlawful sterilisation) www.llp.cz/_files/file/publikace/bro%C5%BEura%20Sterilizace%20pro%20w eb.pdf - League for Human Rights (Liga lidských práv) (2007) Férová škola nediskriminuje (Fair school does not discriminate) www.llp.cz/_files/file/ferova%20skola.pdf FINLAND Unpublished FRALEX reports - Ojanen, T. (2008) Thematic legal study on national human rights institutions and human rights organisations – Finland, FRA. - Aaltonen, M., Ojanan, T. (2009) Thematic legal study on impact of the Race Equality Directive – Finland, FRA. - Ervo, L., Lavapuro, J., Ojanen, T. (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – Finland, FRA. - Makkonen, T., Ojanen, T., Scheinin, M. (2010) Legal study on homophobia and discrimination on grounds of sexual orientation, report on Finland, FRA (updated from February 2008). Unpublished country study on equality bodies set up under EU non- discrimination directives - Aaltonen, M., Joronen, M., Ojanen, T. (2010) Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC (VT/2009/012), Finland, European Commission. http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_03/03_CbC_eng/CZE-CbC-III-2004-22-ENG.pdf http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_03/03_CbC_eng/CZE-CbC-III-2004-22-ENG.pdf http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_02/02_CbC_eng/02-cbc-czechrepublic-eng.pdf http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_02/02_CbC_eng/02-cbc-czechrepublic-eng.pdf http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_01/01_CbC_eng/01-cbc-czechrepublic-eng.pdf http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_01/01_CbC_eng/01-cbc-czechrepublic-eng.pdf http://www.llp.cz/_files/file/publikace/bro%C5%BEura%20Sterilizace%20pro%20web.pdf http://www.llp.cz/_files/file/publikace/bro%C5%BEura%20Sterilizace%20pro%20web.pdf http://www.llp.cz/_files/file/ferova%20skola.pdf 155 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Other reports and literature – published - Aaltonen, M., Joronen, M., & Villa, S. (2009) Syrjintä Suomessa 2008 (Discrimination in Finland 2008). - Aaltonen, M., Joronen, M., and Villa, S. (2010) Syrjintä työelämässä – pilottitutkimus työsuojelupiirien aineistosta. Sisäasianministeriön julkaisu 43/2009 (Discrimination in working life – a pilot study on the information of the Occupational Safety and Health Authorities). Ministry of the Interior 43/2009.) - European Commission against Racism and Intolerance (ECRI) (2007), Report on Finland. - Finland, Ministry of Social Affairs and Health (Sosiaali- ja terveysministeriö) (2009) Tasa-arvoviranomaisten institutionaalinen asema (The institutional status of gender equality authorities in Finland). - Finland, National Discrimination Tribunal (2003-2009) Syrjintälautakunnan vuosiraportit 2003-2009 (Annual Reports 2003 – 2009). - Finland, Ombudsman for Minorities, (2003 – 2009) Vähemmistövaltuutetun vuosiraportit 2003-2009 (Annual Reports of the Office 2003-2009) - Finland, Ombudsman for Equality (2003-2009)Tasa-arvovaltuutetun vuosiraportit 2003-2009 (Annual Reports of the Office 2003 - 2009). - Finland, Parliament (Eduskunta) (2007) Näkökulmia oikeusasiamiesinstituution vaikuttavuuteen (Effectiveness of the Parliamentary Ombudsman) - Finland, Parliamentary Ombudsman (2003-2009) Eduskunnan oikeusasiamiehen vuosiraportit 2003-2009 (Annual Reports 2003 - 2009) - Lasola, M., (2009) Oikeusolot 2009: katsaus oikeudellisten instituutioiden toimintaan ja oikeuden saatavuuteen (A survey on legal institutions and access to justice). Helsinki: National Research Institute on Legal Policy (Helsinki: Oikeuspoliittinen tutkimuslaitos). - Lundström, B., Miettinen, T., Keinänen, A., Airaksinen, J., Korhonen. A., (2008) Yhdenvertaisuuslain toimivuus. Tutkimusraportti viranomaisten käsityksistä sekä oikeus- laillisuusvalvonta-, ja lainvalvontakäytännöstä. (Effectiveness of the Non-Discrimination Act. Report on authorities‟ conceptions and supervision procedures). Ministry of Employment and Economy 11/2008 (Työ- ja elinkeinoministeriön julkaisuja 11/2008). 156 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Huotari, K., Törmä, S., & Tuokkola., K. (2011) Syrjintä koulutuksessa ja vapaa-ajalla (Discrimination in education and leisure activities). - Jasinskaja-Lahti (2002) Rasismi ja syrjintä Suomessa: maahanmuuttajien kokemuksia (Racism and discrimination in Finland: immigrants‟ experiences), Helsinki: Gaudeamus. - Liebkind, K. et. al (2004) Venäläinen, virolainen, suomalainen: kolmen maahanmuuttajaryhmän kotoutuminen Suomeen (Russian, Estonian, Finnish: integration in Finland), Helsinki: Gaudeamus. - Kankkunen, P., Harinen, P., Nivala., E, & Tapio, M. (2010) Kuka ei kuulu joukkoon? Lasten ja nuorten syrjintä Suomessa. (Discrimination of children in Finland), Ministry of the Interior 36/2010 (Sisäasianministeriön julkaisu 36/2010). - Peutere, L. (2010) Poliisin tietoon tullut viharikollisuus Suomessa 2009. (Suspected hate crimes reported to the police in 2009). Tampere: Police College of Finland 88/2010. FRANCE Unpublished FRALEX reports - Benoit-Rohmer, F. (2008) Thematic legal study on national human rights institutions and human rights organisations – France, FRA. - Lambert Abdelgawad, E., (2009) Thematic legal study on impact of the Race Equality Directive – France, FRA. - Lambert Abdelgawad, E., Becue, E., Lecerre, L., and Tavernier, J. (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – France, FRA. Unpublished country study on equality bodies set up under EU non- discrimination directives - Borillo, D. (2010) Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC (VT/2009/012), France, European Commission. Other reports – published - Survey: Baromètre HALDE-OIT: Workplace discrimination. Conducted by CSA, February 2008. 157 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Survey: Baromètre HALDE-OIT: Perception of workplace discrimination, private sector employees and public sector officers. Conducted by CSA, December 2009. - Survey on the education of disabled children in „ordinary schools‟ in primary education, by CSA-OXALIS, December 2008. - Orientation and educational choices according to gender and national origin discrimination criteria: a review of academic studies, HALDE-ACSE, by INETOP-CNAM (gender) and ISCRA (national origin). - Multiple discrimination in employment against immigrant women or women perceived as such SDFE-HALDE, conducted by ISM-CORUM-OPALE, results expected: 2nd quarter 2010. - Survey on career paths according to national origins and discrimination experiences. France Télévisions and Radio France, by Meurs D., INED- EconomiX, November 2009. - Results of the human resources policies led by national audiovisual agencies against discrimination and to better reflect the diversity of French society (December 2009), Code du handicap, 2009 - Grésy, B., (2009) Rapport préparatoire à la concertation avec les partenaires sociaux sur l‟égalité professionnelle entre les femmes et les hommes (Preparatory report in consultation with the social partners on professional equality between women and men) . Literature - Borillo, D. (2000), L‟homophobie (Homophobia), Presses Universitaires de France, coll. Que sais-je?, Paris. - Borillo, D. (2007) Homosexualité et discrimination en droit privé (Homosexuality and discrimination in private law) (with Formond, Th.), La documentation française, Paris. - Borillo, D. (2003) Lutter contre les discriminations (Combating discrimination), La Découverte, coll. Recherches, Paris. - Borillo, D. (2007) Halde: Actions, limites et enjeux (HALDE: actions, limits and challenges) La Documentation Française, coll. Etudes et Recherches, Paris. 158 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Borillo, D. (2002), „Les discriminations fondées sur l'orientation sexuelle‟ („Discrimination on the ground of sexual orientation‟), in La lutte contre les discriminations. Entre théorie et pratique, entre droit et politique (Combating discrimination. Between theory and practice, between law and policy), Centre de recherche et d‟études sur les droits fondamentaux, Université de Paris X-Nanterre, 1er trimester. - Borillo, D. (2005) „La politica anti-discriminatoria dell‟Unione Europea‟ („European Union anti-discrimnination policy‟), in Fabeni, S. and Toniollo, M. G. (ed.) La discriminazione fondata sull‟orientamento sessuale: l‟attuazione della direttiva 2000/78/CE e la nuova disciplina per la protezione dei diritti delle persone omosessuali sul posto di lavoro (Discrimination on the ground of sexual orientation: the implementation of Directive 2000/78/EC and the new order for the protection of the rights of homosexuals in the workplace), Rome, Ediesse. - Borillo, D. (2009) Apport philosophique et contribution pratique du droit européen en matière de lutte contre les discriminations (The philosophical contribution and practical input of European law in combating discrimination‟ in Fassin, E. and Halpérin, J.-L. (eds.) Discriminations: Pratiques, savoirs, politiques (Discrimination: practice, knowledge and policy), La Documentation Française, coll. Etudes et Recherches, Paris, pp. 33-48. - Borillo, D. (2002) Les instruments juridiques français et européens dans la mise en place du principe d'égalité et de non-discrimination („French and European legal instruments in the implementation of the principle of equality and non-discrimination‟) in Revue Française des Affaires Sociales, N° 1, 56e année, January-March, pp. 113-129. - Borillo, D. (2004) Droit et politique européenne du genre et de l‟orientation sexuelle (Law and European policy on gender and sexual orientation), in Gender law and policy annual review, Vol. 2, Tokyo, pp. 7-16. - Borillo, D., (2005) La lutte contre les discriminations fondées sur l‟orientation sexuelle en droit européen et français (Combating discrimination on the ground of sexual orientation in European and French law), in Revue droit et cultures n° 49, 2005/1, Paris, pp. 129-145. - Borillo, D. (2010) Le rôle du juge européen dans la reconnaissance des droits des gays et des lesbiennes (The role of European judges in the recognition of the rights of gays and lesbians) in Bulletin d‟histoire politique, Homosexualités et politique en Europe, UQAM, vol. 18, numéro 2, Montréal, winter 2010, pp. 101-112. - Borillo, D. (2004) Combating sexual orientation discrimination in employment in France, Report of the European Group of Experts about the 159 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) implementation up to April 2004 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Universiteit Leiden (E. M. Meijers Institute of Legal Studies, November 2004), pp. 183-207. - Borillo, D. (2005) „Major legal consequences of marriage, cohabitation and registered partnership for different-sex and same-sex partners in France‟, in Waaldijk, K. (ed.), More or less together: levels of legal consequences of marriage, cohabitation and registered partnership for different-sex and same-sex partners. A comparative study of nine European countries, INED, Documents de Travail n° 125, 2005, pp. 93/107. - Borillo, D. (2007) Mapping study on existing national legislative measures to combat discrimination in fields where Community legislation has not been introduced such as social protection, social services and advantages, education, and access to and supply of goods and services. Rapport à la Commission de l‟UE, Human European Consultancy, 2007. - Borillo, D. (2009), L‟apport juridique européen dans la lutte contre les discriminations (European legal provision in the fight against discrimination), Committee for the Measurement and Evaluation of Diversity and Discrimination (COMEDD) (Comité pour la mesure et l‟évaluation de la diversité et des discriminations), Séance n° 5 du 2 juin 2009 Le cadre politico-juridique national et européen Président: François Héran. - Chappe, V.-A., (2010), La qualification juridique est-elle soluble dans le militantisme? Tensions et paradoxes au sein de la permanence juridique d'une association antiraciste (Is legal analysis compatible with activism? Dilemmas and tensions in the legal drop-in centre of one antiracism organisation), in Droit et société, vol., n° 3, p. 543–567. - Chappe, V.-A., (2010), La genèse de la HALDE. Un consensus a minima (The birth of the HALDE. A minimum consensus), Editions Universitaires Européennes. - Commaille, J., Kaluszynski, M. and V., 2007, La fonction politique de la justice (The political function of justice), La Découverte, 2007. - Eberhard, M. (2006), L'idée républicaine de la discrimination raciste en France (The republican idea of racial discrimination in France), doctoral thesis [S.l.], Université Paris Diderot - Paris 7. - Eberhard (M.), De l‟expérience du racisme à sa reconnaissance comme discrimination. Stratégies discursives et conflits d‟interprétation („The experience of racism and its recognition as discrimination. Discursive strategies and conflicts in interpretation‟ in Sociologie, 4, 2010. 160 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Eberhard, M. (2010) Habitus républicain et traitement de la discrimination raciste en France (The republican mindset and how discrimination is dealt with in France), in Regards sociologiques, vol., n° 39. - Fassin, D. (2002) L'invention française de la discrimination (The French invention of discrimination), Revue française de science politique, vol. 52, n° 2002/4, p. 403–423. - Hargreaves, A. G. (2000), „Half-measures: Antidiscrimination policy in France‟ in French politics, culture and society, vol. 18, n° 3, p. 83–102. - Lanquetin, M.-T. (1995) La preuve de la discrimination: l‟apport du droit communautaire (Proof of discrimination: the contribution of Community law) in Droit social, vol. 5, n° May, p. 435–441 - Lanquetin, M.-T., Latraverse, S. and Pataridze N. (2000) Le recours au droit dans la lutte contre les discriminations: la question de la preuve (Legal recourse in combating discrimination: the issue of proof), Note du GELD, vol. 2. - Lanquetin, M.-T., (2004), Une loi inappliquée? („An unenforced law?‟) in Travail, genre et sociétés, vol., n° 2, p. 182–190. - Lanquetin, M.-T. and Grévy, M. (2006) Premier bilan de la mise en oeuvre de la loi du 16 novembre 2001 relative à la lutte contre les discriminations („First evaluation of the implementation of the law of 16 November 2001 on combating discrimination‟) in Migrations Études, vol. 135. - Mazouz, S. (2010) La République et ses autres. Politiques de la discrimination et pratiques de naturalisation dans la France des années 2000 (France and its „Others‟. Discrimination policy and naturalisation practices in France in the 21 st century), Thèse de Sociologie, IRIS-EHESS. - Poutignat, P. (2006) Pratiques syndicales de lutte contre les discriminations: une étude de cas (Trade union anti-discrimination practice: a case study) in Cahiers de l‟Urmis [online], N°10-11, December 2006, online 15 December 2006, accessed 18 March 2011: http://urmis.revues.org/index247.html - Simon, P. and Stavo-Debauge J., (2004) Les politiques anti-discrimination et les statistiques: parametres d'une incoherence („Anti-discrimination policy and statistics: parameters of incoherence‟ in Sociétés contemporaines, vol. n° 1, p. 57–84. - Stavo-Debauge, J. (2003) Les vices d'une inconséquence conduisant à l'impuissance de la politique française de lutte contre les discriminations. http://urmis.revues.org/index247.html 161 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) «Tu ne catégoriseras point! (The problems of inconsistency which have resulted in an impotent French anti-discrimination policy. “Thou shalt not categorise”!), Carnets de Bord, vol. 6. - Stavo-Debauge, J., (2004), Les vices d'une inconséquence conduisant à l'impuissance de la politique française de lutte contre les discriminations. II. Apprêter un chemin au droit, confectionner des catégories pour l'action publique (The problems of inconsistency which have resulted in an impotent French anti-discrimination policy. Part II Preparing a legal pathway, devising categories for public intervention) in, Carnets de bord, vol. 7, p. 32-54. - Streiff-Fénar, J. (2006) L‟attribution de paranoïa comme délégitimation de la parole des minoritaires: l‟exemple d‟une entreprise de transports publics (How paranoia delegitimises the words of minorities: the example of a public transport company) in Cahiers de l‟Urmis [online], N°10-11, December 2006, online 11 December 2006, accessed 18 March 2011: http://urmis.revues.org/index257.html - Suk, J. (2007) „Equal by comparison: unsettling assumptions of antidiscrimination law‟ in American journal of comparative law, vol. 55, n° 2. ITALY Unpublished FRALEX reports - Cartabia, M., Tega, D., Crivelli, E. and Lamarque, E. (2010) Legal study on homophobia and discrimination on grounds of sexual orientation, report on Italy, FRA (updated from February 2008). - Cartabia, M., Furlan, F., Lang, A. and Maruffi, R. (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – Italy, FRA. - Cartabia, M., Tega, D. and Vigevani, G. (2008) Thematic legal study on national human rights institutions and human rights organisations – Italy, FRA. - Cartabia, M. and Tega, D. (2009) Thematic legal study on impact of the Race Equality Directive – Italy, FRA. Unpublished country study on equality bodies set up under EU non- discrimination directives - Cartabia, M., Tega, D., (2010) Equality bodies country fiche, I, Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 006/54/EC (VT/2009/012), European Commission. http://urmis.revues.org/index257.html 162 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Other reports and literature – published - Allport, G. (1954). The nature of prejudice. New York: Doubleday Anchor. - Casadonte A., Guarisio A. (2010) L‟azione civile contro la discriminazione: rassegna giurisprudenziale dei primi dieci anni (Civil action against discrimination: case law from the first ten years), in Diritto, immigrazione e cittadinanza XII, 2-2010, p. 59, Milano: Franco Angeli. - Conti, C. (2005), Genitori e figli in una Roma multietnica („Parents and children in a multiethnic Rome‟) in Diventare Adulti. Vincoli Economici e Strategie (Becoming adults. Economic constraints and strategies), Milan: Guerini Scientifica. - Crosby, F. (1984) The denial of personal discrimination, in American behavioral scientist, 27, 371–386. - Doise, W., Spini, D., and Clemence, A. (1999) Human rights studied as social representations in a cross-national context in European journal of social psychology, 29(1), 1-38. - Eurobarometer (2008) Discrimination in European Union Report 2008 – Results from Italy - Eurobarometer (2009) Discrimination in European Union Report 2009 – Results from Italy. - European Commission for the Efficiency of Justice (2010), European judicial systems, Edition 2010 (data 2008) Efficiency and quality of justice, Strasbourg: CoE Publishing. - Ferrari Giuseppe Franco (ed.) (2008), Introduction to Italian public law, Milan: Giuffrè. - Jost, J. T. and Banaji, M. R. (1994) The role of stereotyping in system- justification and the production of false consciousness, in British journal of social psychology, 33, 1-27. - Italy, Civil Court of Brescia (Tribunale di Brescia), Order of 26 January 2009, in: www.meltingpot.org/IMG/pdf/ord_BRESCIA_12_03_09.pdf. - Italy, Ministry of Justice (Ministero della Giustizia), Analisi della durata dei procedimenti civili. Anni 2006 – 2008 (Analysis of length of civil proceedings. 2006-2008), Ministero della Giustizia, www.gi- http://www.meltingpot.org/IMG/pdf/ord_BRESCIA_12_03_09.pdf http://www.gi-ustizia.it/giustizia/it/mg_1_12_1.wp?previsiousPage=mg_1_14_1&contentId=SPS453085 163 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) ustizia.it/giustizia/it/mg_1_12_1.wp?previsiousPage=mg_1_14_1&contentId =SPS453085. - Italy, National Equality Counsellor (Consigliera Nazionale di Parità) (2011) Rapporto annuale attività Consigliera Nazionale di Parità, Anno 2010 (Annual report on the activities of the National Equality Counsellor in 2010), Rome. - Italy, National Equality Counsellor (Consigliera Nazionale di Parità) (2010) Rapporto annuale attività Consigliera Nazionale di Parità, Anno 2009 (Annual report on the activities of the National Equality Counsellor in 2009), Rome. - Italy, National Office Against Racial Discrimination (Ufficio Nazionale Antidiscriminazione Razziale, UNAR) (2010), Relazione al Parlamento sull‟effettiva applicazione del principio di parità di trattamento e sull‟efficacia dei meccanismi di tutela, Anno 2009 (Report to the Parliament on the effectiveness of the principle of equal treatment and the efficacy of remedies, 2009), Rome. - Italy, National Office Against Racial Discrimination (Ufficio Nazionale Antidiscriminazione Razziale, UNAR) (2010), Relazione al Presidente del Consiglio dei Ministri sull‟attività svolta nel 2009 (Report to the President of the Council of Ministers on activities in 2009), Rome. - Italy, National Office Against Racial Discrimination (Ufficio Nazionale Antidiscriminazione Razziale, UNAR) (2011), Relazione al Parlamento sull‟effettiva applicazione del principio di parità di trattamento e sull‟efficacia dei meccanismi di tutela, Anno 2010 (Report to the Parliament on the effectiveness of the principle of equal treatment and the efficacy of remedies, 2010), Rome. - Italy, Supreme Court of Cassation (Corte di Cassazione) judgement, 7 March 2008, n. 6172. - Major, B., and O‟Brien, L. T. (2005) The social psychology of stigma, in Fiske, S. T., Schacter, D. L. and Zahn-Waxley C. (eds.) Annual review of psychology, 393-421. Palo Alto, CA: Annual Review Inc. - Major, B., Quinton, W. J., and McCoy, S. K. (2002). Antecedents and consequences of attributions to discrimination: theoretical and empirical advances in Zanna, M. P. (ed.) Advances in experimental social psychology, vol. 34, 251-330. San Diego, CA: Academic Press. - Monnanni, M. „Prefazione‟ („Preface‟), in D‟Ippoliti, C. and Schuster, A. (eds.) (2011), DisOrientamenti. Discriminazione ed esclusione sociale delle 164 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) persone LGBT in Italia (Dis-Orientations. Discrimination and social exclusion of LGBT people in Italy), Rome: Armando. - Pirazzi, M. (ed.) (2008), Cause strategiche contro la discriminazione (Strategic litigation against discrimination), Rome: Cospe. - Serina, M. and S. (2009) Discriminazione percepita, conflitti e processi d. inclusione nei contesti etnici (Perceived discrimination, conflicts and inclusion processes in ethnic contexts), Working paper Università degli Studi di Bari, Dipartimento di Psicologia (Working paper of the Department of Psychology of the University of Bari) www.aipass.org/paper/serino.pdf. - Società Ricerca e Formazione (ed.) (2009), Gli strumenti giuridici di prevenzione e contrasto rispetto alle diverse forme di razzismo, xenofobia e antisemitismo in Bulgaria, Germania e Italia (Legal instruments to prevent and combat the different forms of racism, xenophobia and anti-Semitism in Bulgaria, Germany and Italy), Turin. - Steele, C. M., Spencer, S. J., and Aronson, J. (2002) Contending with group image: The psychology of stereotype and social identity threat, in Zanna, M. P. (ed.) Advances in experimental social psychology, 379-440. San Diego, CA: Academic Press. UNITED KINGDOM Unpublished FRALEX reports - Harris, D., Murphy, T., Kenner, J. and Johnson, T., (2010) Legal study on homophobia and discrimination on grounds of sexual orientation, report on the United Kingdom, FRA (updated from February 2008). - Barrow, T. and Ryan, B., (2009) Thematic legal study on assessment of access to justice in civil cases in European Union – United Kingdom, FRA. - Harris, D. and O‟Cinneide, C. (2008) Thematic legal study on national human rights institutions and human rights organisations – United Kingdom, FRA. - Coussey, M., (2009) Thematic legal study on impact of the Race Equality Directive – United Kingdom, FRA. Unpublished country study on equality bodies set up under EU non- discrimination directives http://www.aipass.org/paper/serino.pdf 165 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Gooding, C. (2010) Equality bodies country fiche, United Kingdom, Study on equality bodies set up under Directives 2000/43/EC, 2004/113/EC and 006/54/EC (VT/2009/012), European Commission. Other reports and literature – published - Adams, L., Moore, A., Gore, K. and Browne, J. (2009) Research into enforcement of employment tribunal awards in England and Wales Ministry of Justice. - Armstrong, K. and Coats, D. (2007) The costs and benefits of employment tribunal cases for employers and claimants, London, DTI. - Aston, J., Hill, D. and Tackey, N. (2006) The experience of claimants in race discrimination employment tribunal cases, DTI. - Aston, J., Hill, D., and Williams, C. (2007) Landlords‟ responses to the Disability Discrimination Act, Department of Work and Pensions. - Borland, J., Griffiths, A. and Rees, O. (2009) Responding to discrimination: the geography and geometry of advice provision in England, Scotland and Wales, Final report, Law Centres Federation. - Brown, A., Erskine, A. and Littlejohn, D. S. (2006) Review of judgments in race discrimination employment tribunal cases DTI. - Casebourne, J., Regan, J., Neathey, F., and Tuohy,. S., (2006) Employment rights at work: Survey of employees 2005 London, DTI. - Communities and local government (2010) Citizenship survey: 2009-10. - Council on Tribunals (2002) Making tribunals accessible to disabled people. - Denvir, A., Broughton, A., Gifford, J., and Hill, D. (2007) The experiences of sexual orientation and religion or belief discrimination employment tribunal claimants, ACAS. - Dickens, L. (2007) „The road is long: Thirty years of equality legislation in Britain‟, in British journal of industrial relations, 45:3. - Discrimination Law Association (2011) DLA response to MoJ consultation on proposals for the reform of legal aid in England and Wales. - ECNI (2009) Draft corporate plan 2009-2012. 166 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Equality and Human Rights Commission (EHRC) (2009) Draft legal strategy 2009-2012. - EHRC (August 2009) A legal enforcement update from the Equality and Human Rights Commission. - EHRC (2009) Public sector duty assessment of the Department of Work and Pensions through Jobcentre Plus. - EHRC (2010) How fair is Britain? - EHRC (2010) Not just another statistic. Life in Wales for asylum seekers and refugees. - EHRC (2010) Not just another statistic. Life in Wales for Gypsy Travellers. - Ellison, G. and Gunstone, B. (2009) Sexual orientation explored: A study of identity, attraction, behaviour and attitudes in 2009, EHRC. - Equality Commission Northern Ireland (ECNI) Annual Report 2008/09. - Equal Opportunities Commission (2005) Greater expectations: Summary final report EOC‟s investigation into pregnancy discrimination. - Fevre, R., Nichols, T., Prior, G. and Rutherford, I. (2009) Fair treatment at work. Report 2009: Findings from the 2008 survey, Department for Business, Innovation and Skills. - Grainger, H., and Fitzner, G. (2006) Fair treatment at work survey 2005 DTI. - Hunt, R., Jensen, J. (2007) The school report. The experiences of young gay people in Britain‟s schools, London, Stonewall. - Hunt, C., Davidson, M., Fielden, S. and Hoel, H. (2007) Sexual harassment in the workplace: A literature review, Equal Opportunities Commission. - Hurstfield, J., Meager, N., Aston, J., Davies, J., Mann, K., Mitchell, H., O‟Regan, S. and Sinclair, A. (2004) Monitoring the Disability Discrimination Act 1995 Phase 3, Disability Rights Commission. - Mason, P. and Hughes, N. (2009) Access to justice: a review of existing evidence of the experiences of minority groups based on ethnicity, identity and sexuality, Ministry of Justice. 167 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) - Moorhead, R. and Cumming, R. (2008) Damage-based contingency fees in employment cases – A survey of practitioners, Cardiff University. - O‟Cinneide, C. ( 2003) Taking equal opportunities seriously, The extension of positive duties to promote equality, Equal Opportunities Commission. - Office of the Industrial Tribunals and Fair Employment Tribunal Annual report 2008/09. - Osborne, B. and Shuttleworth, I. (2004). Fair employment in Northern Ireland, A generation on, Northern Ireland, Blackstaff Press. - Peters, M., Seeds, K., and Harding, C. (2006) Findings from the survey of claimants in race discrimination employment tribunal cases, London, DTI. - Rolfe, H., Duhdwar, A., George, A. and Metcalf, H. (2009) Perceptions of discrimination in employment, Government Equality Office. - Rutherford, S., Schneider, R. and Walmsley, A. (2006) Agreement on preventing and dealing effectively with sexual harassment: quantitative and qualitative research into sexual harassment in the armed forces, Ministry of Defence/Equal Opportunities Commission. - United Kingdom, Department of Business Innovation and Skills (2011) Resolving workplace disputes: A consultation. - United Kingdom, Ministry of Justice (2010) Proposals for the reform of legal aid in England and Wales. - Walsh, J., Conlon, C., Fitzpatrick, B. and Hansson, U. (2007) Enabling lesbian, gay and bisexual individuals to access their rights under equality law, ECNI. - Weller, P., Feldma, A. and Purdam, K. (2001) Religious discrimination in England and Wales, Home Office. - Williams, B., Copestake, P., Eversley, J. and Stafford, B. (2008) Experiences and expectations of disabled people, Office of Disability Issues. 168 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Annex – Glossary of terms used in desk research and questionnaires 1. Access to justice Effective access to judicial and non-judicial means of obtaining redress. 2. Accommodation of diversity Adjustments made in response to difference and different needs, in relation to factors such as language, physical impairment or disability, financial resources, age, religious, cultural, ethnic, social, political and educational backgrounds, gender, sex and / or sexual orientation. These needs arise from specific experience (relationship of people with the majority population and the institutions of society), situation (people‟s economic, political and social status) and identity (the norms and values that shape people‟s attitudes and behaviours) of groups which experience inequality. In the broader context of human rights, over time diversity has demanded the development of instruments with a specific focus on women, racial or ethnic origin, migrants and people with disabilities, alongside the undifferentiated approach to the issue of equality and non-discrimination which is commonly applied to human rights. Diversity and the accommodation of diversity have therefore evolved as a key additional element in international human rights instruments and in human rights law in the field of discrimination. However, the accommodation of diversity is currently only explicitly mentioned in the EU equal treatment directives in relation to the ground of disability. This focus on accommodation of diversity is also reflected in the importance given to the different situations of complainants in the case law of the Court of Justice of the European Union. For instance, in Case (C- 279/93) Finanzamt Köln-Altstadt v Schumacker [1995] ECR 1-225, the Court held that it is settled law that discrimination can arise not only through the application of different rules to comparable situations but also by the application of the same rule to different situations. Different situations can arise due to diversity where different needs, experiences and situations have a bearing on the case. 3. Adequate redress The situation of the victim is changed for the better or the damage is compensated for in a way which is proportional to the level of damage done. The outcome is satisfactory from the perspective of the victim. 169 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The general principle in international law that victims of human rights violations are entitled to redress for the damage caused to them is safeguarded by a variety of international human rights instruments. 63 In the European Convention on Human Rights in particular Article 13 on the right to an effective remedy is relevant. It states that: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 64 4. Alternative dispute resolution Alternative dispute resolution (ADR) encompasses all extra-judicial methods for the settlement of disputes, resulting in either binding or non- binding decisions or settlements in civil or commercial matters, conciliation and / or other proceedings. ADR includes forms of mediation, which in some EU countries is subject to formal regulation, while in other countries it is not. The understanding of what should be understood by ADR differs from country to country. At a European level there have been some initiatives to provide guidance for ADR methods, in particular mediation. 65 In 2004, there was a proposal for a Directive of the European Parliament and the Council on certain aspects of mediation in civil and commercial matters. 66 It was stated that promoting access to adequate dispute resolution processes for individuals and business, and not just access to the judicial system, is part of a key objective of EU policy. Furthermore, a European Code of Conduct for Mediators was developed by a group of stakeholders in 2004 with the assistance of the European Commission. 67 In addition, in 2007 the Council of Europe European Commission for the Efficiency of Justice (CEPEJ) issued guidelines for a 63 Universal Declaration of Human Rights (Article 8); the International Covenant on Civil and Political Rights (Articles 2 (3), 9(5) and 14(6)); the International Convention on the Elimination of All Forms of Racial Discrimination (Article 6); the Convention of the Rights of the Child (Article 39); the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Article 14), the Rome Statute of the International Criminal Court (Article 75) and the Convention for the Protection of All Persons from Enforced Disappearance (Article 24); the American Convention on Human Rights (Articles 25, 63(1), 68 and 68 63(1)); and the African Charter on Human and Peoples‟ Rights (Article 21(2)). 64 Convention for the Protection of Human Rights and Fundamental Freedoms, Article 13. 65 For further information, see: http://ec.europa.eu/civiljustice/adr/adr_int_en.htm 66 Available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52004PC0718:EN:NOT 67 Available at: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.htm http://ec.europa.eu/civiljustice/adr/adr_int_en.htm http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52004PC0718:EN:NOT http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52004PC0718:EN:NOT http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.htm 170 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) better implementation of the existing recommendation concerning family mediation and mediation in civil matters. 68 There has been no further development of common ground in relation to the issue of ADR in Europe. However, additional guidance can be found in the jurisprudence of the ECtHR. It is to be understood that where ADR has been initiated as a consequence of legislation, states must meet the obligations of Article 6 of the ECHR in full. The ECtHR has reaffirmed that, whatever method of dispute resolution is used – compulsory or not – if it is binding on the parties, the essence of the Convention must not be lost. 69 5. Awareness of rights Knowledge about the existence of rights, the availability of mechanisms and institutions for the protection or vindication of rights, as well as on how to use these mechanisms and institutions for seeking redress for rights violations. 6. Class action Claim presented by an interest group or organisation in the general interest of a group, seeking justice beyond the individual case. 7. Complainant A complainant is the person who experiences discrimination and decides to take action. Complainants in this report are the people who lodged, successfully or not, a complaint about discrimination with an equality body, court or administrative / judicial institution. Non-complainants are people who experienced discrimination, but did not lodge a complaint about their discrimination experience with an equality body, court or administrative / judicial institution. 8. Culture of rights Culture within the general population which is aware of discrimination and inequality and is supportive of equality and the case for a more equal society, diversity and the different groups which make up society, rights and the importance of people exercising rights, and equality legislation and the institutions established to implement this legislation. 9. Defendant 68 Available at: http://ec.europa.eu/civiljustice/adr/adr_int_en.htm 69 Schiavetta, S. (2004) „The relationship between e-ADR and Article 6 of the European Convention of Human Rights pursuant to the case law of the European Court of Human Rights, Chapter 5, Conclusions‟ in Electronic law journal. Last accessed: 29 April 2011 via: www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/schiavetta/ http://ec.europa.eu/civiljustice/adr/adr_int_en.htm http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/schiavetta/ 171 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The defendant in this report is the institution or individual at whom the complaint is directed and who is (allegedly) the perpetrator(s) of the discrimination which is the subject of the complaint and is the defendant in the procedures before an equality body, court or administrative / judicial institution. 10. Discrimination This study relates to the following grounds of discrimination: gender, race or ethnic origin, religion or belief, disability, age or sexual orientation. „Direct discrimination‟ shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation based on one of the grounds of discrimination. „Indirect discrimination‟ shall be taken to occur where an apparently neutral provision, criterion or practice would, based on one of the grounds of discrimination, put persons at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 70 11. Efficiency and effectiveness The issue of efficiency has been addressed by the Committee of Ministers of the Council of Europe and defined as “...the delivery of quality decisions within a reasonable time following a fair consideration of issues”. 71 In the same recommendation the Committee stated that, “The efficiency of judges and of judicial systems is a necessary condition for the protection of every person‟s rights, compliance with the requirements of Article 6 [right to fair trial] of the [European] Convention [on Human Rights], legal certainty and public confidence in the rule of law.” This thereby clearly identifies efficiency as a fair trial principle. The Committee also linked the principle of efficiency to the availability of resources: “The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges‟ independence and impartiality.” 72 70 See Council Directive 2000/43/EC, OJ 2000 L 180, Article 2. 71 Recommendation CM/Rec (2010) 12 of the Council of Europe Committee of Ministers of 17 November 2010, Chapter V .31, https://wcd.coe.int/wcd/ViewDoc.jsp?id=1707137&Site=COE 72 Recommendation CM/Rec (2010) 12 of the Council of Europe Committee of Ministers of 17 November 2010, Chapter V .31, https://wcd.coe.int/wcd/ViewDoc.jsp?id=1707137&Site=COE https://wcd.coe.int/wcd/ViewDoc.jsp?id=1707137&Site=COE https://wcd.coe.int/wcd/ViewDoc.jsp?id=1707137&Site=COE 172 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) The principle of effectiveness means, according to the Court of Justice of the European Union (CJEU), that the application of national procedural rules cannot render the exercise of rights conferred by international human rights in European Union law virtually impossible or excessively difficult. 73 In an opinion from the Council of Europe Commissioner for Human Rights on national structures for promoting equality, the issue of effectiveness is approached differently and relates to the impact of the national structures for promoting equality. 74 Yet another approach was used for the „Study on equality bodies‟, where effectiveness was defined from the perspective of the complainant: “Reaching solutions as close as possible to the aims defined” was identified as an indicator for effectiveness. 75 Here we refer to effectiveness in the sense intended by the CJEU: application of national procedural rules should not render the exercise of the right of an individual virtually impossible or excessively difficult. 12. Equality of arms Balance of powers and (procedural) equality between the conflicting parties. Some explanation regarding the notion of „equality of arms‟ has been set out by the UN Human Rights Committee, which stated that: “The notion of equality of arms is an essential feature of a fair trial, and is an expression of the balance that must exist „between the prosecution and the defence‟.” 76 The European Court of Human Rights has explained the principle of „quality of arms‟ as “one of the features of the wider concept of a fair trial” as understood by Article 6(1) of the European Convention, which implies that “each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent”. In this context, “Importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice”. 77 13. Fair proceedings 73 FRA (2011), p. 18, citing various decisions. 74 https://wcd.coe.int/wcd/ViewDoc.jsp?id=1761031#P256_40626 75 Ammer et al (2010). 76 Communication No. 307/1988, J. Campbell v. Jamaica (Views adopted on 24 March 1993), in UN doc. GAOR, A/48/40 (vol. II), p. 44, para. 6.4. 77 ECtHR, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, para. 47. https://wcd.coe.int/wcd/ViewDoc.jsp?id=1761031#P256_40626 173 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Based on the principles of a fair trial, and supplemented by the specific requirements for discrimination cases, fair proceedings respect the principle of equality of arms, provide for a sharing of the burden of proof and allow for appeal against decisions made. 14. Fair trial The principles of a fair trial include the right to be heard, ensuring equality of arms, independence of the judge and of the tribunal, access to legal aid and timely resolution of disputes. 15. Good practices Laws, regulations, policies, procedures or practices which facilitate and / or improve access to justice. 16. Grounds of discrimination Premises for discrimination; for the purpose of this study we refer to the six grounds specified in the legal basis of the equal treatment directives, Article 19 of the Treaty on the Functioning of the European Union (TFEU): gender, age, racial or ethnic origin, religion or belief, disability and sexual orientation. 17. Intermediary Any public institution, organisation or person which functions as an intermediate link between the complainant / victim and their securing justice, by playing roles in providing information on rights and how to make a claim, providing legal advice and assistance and other support to victims of discrimination, and building a positive attitude to equality and rights to non-discrimination. Potential intermediaries are NGOs, victim support organisations, trade unions and lawyers and other professionals (e.g. mediator, company counsellor etc.). 18. Legal advice and assistance Support to victims / complainants in bringing forward a case; legal advice services as well as support in the form of representation and securing access to court and / or tribunal systems (legal assistance). 19. Legal aid Financial means / resources made available to support victims in covering the economic costs of seeking access to justice (e.g. costs of pre-legal advice, representation in court / lawyers‟ fees, as well as the cost of the legal proceedings themselves). 174 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) Direct forms of legal aid are: free legal advice services, the appointment of a lawyer by the state or free legal insurance, or any other type of legal assistance provided free of charge by the state. 20. Legal certainty The principle of legal certainty encompasses clarity and predictability of, and the absence of gaps in, the law and its interpretation. 21. Multiple / intersectional discrimination Discrimination simultaneously on more than one ground or discrimination on a combination of grounds. 22. Obstacles (barriers) Anything making access to justice difficult; impediments or barriers related to or as a result of availability of support measures, lack of trust, procedures, resources / cost risks, level of independence, competency / powers, quality of information, low levels of awareness, etc. 23. Principle of non-discrimination Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights. 78 24. Promotion-type equality body These equality bodies, established by law under equal treatment legislation, spend the bulk of their time and resources on a broader mix of activities that encompass supporting good practice in organisations, raising awareness of rights, developing a knowledge base on equality and non-discrimination and providing legal advice and assistance to individual victims of discrimination. 79 25. Strategic litigation Strategic litigation uses the justice system to create social change. By filing lawsuits it aims to create lasting effects beyond the individual case. The chief focus is law or public policy reform rather than the individual client‟s interest (as is the case in ordinary litigation), although these may both be an objective. 80 26. “Similar entities” 78 See General Comment No. 18, in United Nations Compilation of General Comments, p. 134, para. 1 79 See Ammer et al (2010). 80 ERRC/Interights/MPG (2004). www.migpolgroup.com/public/docs/57.StrategicLitigationofRaceDiscriminationinEurope- fromPrinciplestoPractice_2004.pdf http://www.migpolgroup.com/public/docs/57.StrategicLitigationofRaceDiscriminationinEurope-fromPrinciplestoPractice_2004.pdf http://www.migpolgroup.com/public/docs/57.StrategicLitigationofRaceDiscriminationinEurope-fromPrinciplestoPractice_2004.pdf 175 Access to justice – A sociological study on cases of discrimination in the EU (VT/2009/012) “Similar entities” are for the purpose of this report administrative / judicial institutions which deal with cases of discrimination: they can be approached by complainants and can bring the case to a formal conclusion. These institutions include national human rights institutions, ombudsmen, labour inspectorates and specialised tribunals. In bringing discrimination cases to a conclusion these institutions function as “similar entities” to predominantly tribunal-type equality bodies. Predominantly tribunal-type equality bodies could fall within this category but, for the purpose of this research, they are dealt with as a separate category. 27. System of protection Structure of laws, institutions (consecutive and / or parallel), procedures, alternatives and interaction. 28. Timely resolution of disputes Disputes are tackled with and solved within an adequate and appropriate period of time. 29. Tribunal-type equality body These equality bodies, established by statute under equal treatment legislation, spend the bulk of their time and resources hearing, investigating and deciding on individual instances of discrimination brought before them. 30. Under-reporting Discrepancy between actual and reported experiences and instances of discrimination, generally resulting from: inability and / or unwillingness of complainants to file a case, inadequacy of support infrastructure or inaccessibility of legal system, or hostile societal context within which to bring forward a complaint. 31. Victimisation or retaliation Any adverse treatment or adverse consequence for a victim of discrimination as a reaction to making a complaint about it or due to being involved in proceedings aimed at enforcing compliance with the principle of equal treatment. 81 32. Vulnerable groups Groups at (increased) risk of discrimination or for which extra obstacles exist to lodging a complaint against discrimination. 81 See, among others, Council Directive 2000/43/EC, OJ 2000 L 180, Article 9. 
work_zurom5oikvc5pgdcbpj6zeklfi	----	Political philosophers have recently begun to take seriously methodological questions concerning what it is that a theoretical Justice in Ideal Theory: A Refutation Colin Farrelly University of Waterloo farrelly@uwaterloo.ca I. Introduction Political philosophers have recently begun to take seriously methodological questions concerning what a theoretical examination of political ideals (such as freedom, equality and justice) is suppose to accomplish and how effective theorising in ideal theory is in securing those aims. Andrew Mason (2004) and G.A. Cohen (2003), for example, believe that the fundamental principles of justice are logically independent of issues of feasibility and questions about human nature. Their position contrasts sharply with political theorists like John Dunn (1990) and Joseph Carens (2000) who believe that normative theorising must be integrated with an appreciation of the empirical realities of one’s society. Rather than bracket questions of feasibility and human nature, empirically- oriented political theorists believe that real, non-ideal considerations (like our historical circumstances, problems of institutional design, etc.) must be taken seriously when deriving normative theories of justice. The disagreement between those political philosophers who feel inclined to invoke highly abstract hypotheticals when deriving the principles of justice, and those political theorists who take seriously real, non-ideal considerations, is a disagreement over how fact-sensitive a theory of distribute justice ought to be. Mason raises a challenge for the more empirically grounded political theorists when he asks: “what reason do we have for thinking that any adequate analysis of an mailto:farrelly@uwaterloo.ca ideal such as justice must be conducted in the light of an investigation of what is feasible?” (Mason, 2004, 255). In this paper I hope to provide a compelling response to Mason’s question. I believe there is some conceptual incoherence involved in saying “This is what justice involves, but there is no way it could be implemented” (Mason, 2004, 255). This incoherence stems from the fact that a theory of social justice, and the principles of justice it endorses, must function as an adequate guide for our collective action. A theory of social justice that yields impotent or misguided practical prescriptions is a deficient theory of justice. If the collective aspiration to implement the conclusions of a theory would not result in any noticeable increase in the justness of one’s society, then it fails as a normative theory. Liberal egalitarian theories of justice are theories that typically function at the level of ideal theory. The distinction between ideal and non-ideal theory is not given rigorous classification in the existing literature. As Mason (2004, 265) notes, this distinction is employed by John Rawls in The Law of Peoples. An account of justice in ideal theory must recognise “some moderately strong feasibility constraints which require it to be realistic in the best of foreseeable conditions” (Mason, 2004, 265). Rawls describes ideal theory as being realistically utopian. Political philosophy is realistically utopian “when it extends what are ordinarily thought of as limits of practical political possibility” (Rawls, 1999, 6). This contrasts with non-ideal theory, which is concerned with problems of non-compliance or unfavourable (historical, social or economic) conditions. In this paper I argue that theorising about justice at the level of ideal theory is inherently flawed and thus has impoverished liberal egalitarianism. Any theoretical 2 analysis that takes place at the level of ideal theory cannot take seriously the question of what is possible in the best possible conditions (or what constitutes a “realistic” utopia) as a determination of what constitutes the best possible conditions requires a thorough examination of non-ideal considerations (e.g. the facts of non-compliance, scarcity, indeterminacy, human vulnerability and fallibility, etc.). More specifically, liberal egalitarians who function at the level of ideal theory adopt a cost-blind approach to rights and a narrow view of possible human misfortune. The former issue leads liberal egalitarians to give priority to a serially ordered principle of equal basic liberties (Rawls, 1971, 1993) or to treat rights as “trumps” (Dworkin, 1978); and the former to a stringent prioritarian principle (Rawls’s difference principle) or luck egalitarianism. Taken together, the cost-blind approach to rights, coupled with the narrow view of human misfortune, mean the liberal egalitarian theories of justice cannot address the issue of tradeoffs that inevitably arises in real non-ideal societies that face the fact of scarcity. This makes liberal egalitarianism an ineffective theory of social justice. In the concluding section of the paper I outline a general methodology intended to enhance the transformative potential of liberal egalitarianism. I call this method practical political philosophy. Doing practical political philosophy requires philosophers to engage in a self-conscious dialogue not only with other philosophers, but also with executives, legislatures, courts and other public administrators. In order to facilitate this self-conscious dialogue I recommend that political philosophers aspire to satisfy what Robert Goodin (2003) calls “deliberation from within”. Deliberating from within will help liberal egalitarians better understand why liberalism has been assailed by its many critics, including communitarians, democratic theorists, cosmopolitans, 3 environmentalists, multiculturalists and feminists. So, at a minimum, liberals will be better prepared to defend liberal egalitarianism against its many critics if they defend a public philosophy that takes non-ideal theory seriously. Furthermore, engaging in practical political philosophy will ensure that the theoretical analysis developed by liberal egalitarians will be sufficiently fact-sensitive so that their prescriptions can serve as a guide to our collective action in the real world. And this will make liberal egalitarianism a more defensible theory of social justice. II. A Parody of the Original Position Consider the following hypothetical scenario. Given the growing strains on the existing airports in London, British policy makers decide that a new airport should be created. They have grand ambitions for this airport and want it to be better than either Heathrow or Gatwick. These policy makers commission Dave, an aviation expert, to come up with a list of the “fundamental principles” that should the guide the planning and construction of this new and improved airport. In order to clarify what the ideal airport would look like Dave invokes a number of simplifying assumptions in order to derive his normative guidelines concerning how the airport should be designed. He begins by making the following assumptions which he believes are necessary to ensure that he functions at the level of ideal theory: 1. Assume that concerns of airplane safety, noise and pollution do not arise. So no airplane ever has a malfunction and no citizens will complain about the inconvenience of having an airport in their neighbourhood. 2. Assume that society is a closed society and thus all flights will be domestic flights. 3. Assume that all passengers who will use the airport will be “normal functioning” passengers. That is, no passengers will have physical disabilities that will limit their mobility of getting around the airport or boarding and leaving airplanes. 4 4. Assume that issues of domestic security do not arise. So there are no terrorists or criminals and thus the airport does not need to worry about the costs associated with extensive check-in procedures. 5. Assume that there will always be good weather so that flights will not be delayed or cancelled due to weather. Having invoked these simplifying assumptions, Dave begins to reflect on what he thinks the ideal airport should achieve. He rejects the utilitarian ethic of company directors who only care about maximising profits. Dave adopts an impartial, contractual approach to his project. He images what the representative passenger would want from the airport if they were all equal and placed behind a “veil of ignorance”. This veil denies them knowledge about things like their preference for the kinds of restaurants and shops available in the airport, whether they will be travelling with or without children, the distance they will be flying, etc. From behind this veil of ignorance passengers only know that they seek to maximise their airport primary goods. These goods include safety, leaving on time and having their baggage arrive safely and promptly at the correct destination. Dave further surmises that priority rules govern these primary goods and thus he concludes that the following three, serially ordered, principles should govern the design and construction of the new airport: Principle 1: All persons (both passengers and flight crew) have the same indefeasible claim to safety. (equal basic safety principle) Principle 2: Equal opportunity for boarding your flight promptly and departing on time. (principle of fair equality of opportunity) Principle 3: We should maximize the promptness of getting the last pieces of baggage unloaded from an airplane to the baggage reclaim area. (maximin baggage reclaim principle) 5 Imagine now how the policy experts who solicited Dave’s advice will react to the normative conclusions of Dave’s ideal theorising. Will Dave’s armchair theorising be of any use for planning and designing a real airport? An airport that will be subject to a variety of concerns that arise in the non-ideal world. These concerns range from safety and pollution to congestion and accessibility. Our policy makers will no doubt dismiss Dave’s normative conclusions as being unrealistic and naïve as policy makers will have to struggle with a vast array of issues which Dave’s ideal theorising ignores. It is easy to support Dave’s three principles if, for example, airport and airplane security are not real concerns or if the congestion created by international flights did not arise. But of course in the real world these things do happen. Air traffic controllers can make mistakes, poor weather affects visibility and causes delays, the volume of international flights increases congestion, security measures delay boarding procedures and may delay flights, and the varying physical abilities of passengers impact the accessibility of an airport. There are countless complications that arise in the real world that must be taken into consideration when deciding what would constitute the best possible airport we can make. Tradeoffs must be made between safety and concerns of efficiency (e.g. costs) and feasibility (e.g. given that humans are fallible and that many things, like the weather, are indeterminate). To bracket or ignore the constraints of the real world is to obstruct, rather than clarify, how we should theorise about what the ideal airport would be. Perhaps Dave might protest against my criticisms by retorting that he was simply describing what an airport would look like in the “best foreseeable conditions”. But if Dave knew anything about the empirical realities of airport transportation, he would have realised that he transcended real world considerations too often and too easily. 6 If it is wrong to invoke Dave’s method of ideal theorising about airports, is it not also inappropriate to invoke similar ideal theorising about questions of distributive justice? I believe that it is. Like Dave, John Rawls makes a number of simplifying assumptions (e.g. society is a closed system and consists of normal, fully cooperating members) that severely limit the viability of “justice as fairness” as a theory of distributive justice. The publication of A Theory of Justice in 1971 sparked a renewed interest in political philosophy and Rawls’s theory remains the most influential theory of distributive justice in contemporary debates. “Justice as fairness” has been the subject of intense debate, and criticism of Rawls’s theory has come from theorists of almost every stripe. From egalitarians and libertarians to feminists, communitarians, cosmopolitans, and multiculturalists, it seems that everyone has an axe to grind with Rawls and grinding that axe often helps his opponents gain support for their alternative theoretical position. The most compelling of these criticisms of Rawls’s theory stem, I believe, from deficiencies which follow from the fact that Rawls functions at the level of ideal theory.1 1 Rawls tries to accommodate non-ideal considerations more seriously in his later work. In Political Liberalism, for example, Rawls defends a political conception of justice which emphasises the need for stability and an overlapping consensus. Rawls’s extension of his theory to global justice in The Law of Peoples is perhaps the best example of how, over the course of almost half a century, Rawls slowly began to shift from ideal to non-ideal theory. Though he never explicitly described his shift in such terms, it is implied by his aspiration to defend a theory that is realistically utopian. Given the simplifying assumptions Rawls makes in his earlier ideal theorising, such as society being a closed system consisting of normal, fully cooperating members, I think it is fair to say that Rawls often transcended the limits of practical political philosophy too easily. Had he resisted the temptation to bracket the complexities of non-ideal theory he might have defended a political philosophy that satisfied the requirements of a realistic utopia. Perhaps the clearest evidence of the fact that Rawls’s political constructivism is not noticeably more fact-sensitive than his earlier theory is that the two principles of justice endorsed in both A Theory of Justice and Political Liberalism are (roughly) the same principles. The only substantive modification Rawls makes to his later theory is the 7 Communitarians, for example, complain that liberals like Rawls invoke an “unencumbered conception” of the self and that this inspires a neutralist public philosophy that undermines community and the importance of civic virtue. Feminists take issue with Rawls’s inattention to gender inequalities; whilst multiculturalists charge that liberals like Rawls ignore the fact that modern liberal societies are multicultural. Democratic theorists of various stripes have also taken issue with the idealising assumptions of contemporary theories of distributive justice. Jeremy Waldron (1999) criticises justice theorists for failing to take seriously what he calls the “circumstances of politics”. Paralleling Hume’s discussion of the circumstances of justice, Waldron argues that “the need for a common course of action would not give rise to politics as we know it if there was not at least the potential for disagreement about what the concerted course of action should be” (1999, 102). Waldron criticises justice theorists who treat rights as trumps. As Waldron puts it, “we cannot play trumps if we disagree about the suits” (1999, 12). The methodological insight of Waldron’s critique of normative political philosophy is that theorising about justice is itself only part of the task of the political philosopher. The second part is to theorise about politics. Because most work in political philosophy focuses exclusively on the first task it tends to be work that, in Waldron’s words, is of the following sort- “I-expect-you’d-all-like-to-know-what-I- would-do-if-I-ruled-the-world” (1999, 1). Ian Shapiro echoes Waldron’s concern and claims that many political philosophers “appear to take it for granted that there is a correct answer to the question justification of “justice as fairness’. But Rawls does not alter much of the content of the theory. 8 what principles of justice we ought to affirm; that Rawls, Ronald Dworkin, Robert Nozick, Amartya Sen, or someone else will eventually get it right” (1999, 3). But if the demands of justice can be established by simply invoking the principles chosen in the original position or those entailed by equality of resources, then what is the role of democratic politics? It seems that the latter is superfluous. By theorising about justice at the level of ideal theory it is easy to gloss over the non-ideal considerations that arise in the circumstances of politics. But in doing so political philosophers unjustifiably place too much faith in their own armchair theorising. In addition to ignoring (or at least downplaying) the importance of democracy (as well as community, cultural diversity, patriarchy, the environment, globalization, global poverty, etc.) perhaps the most pressing failure of Rawlsian ideal theorising is that it fails to take scarcity seriously. This is a particularly troubling problem for Rawls’s theory because he serially orders his two principles of justice. Such ordering yields impotent prescriptions for real societies that face conditions of scarcity. Defenders of Rawls might reply that such a charge is misplaced as Rawls acknowledges the so-called “circumstances of justice”. These include the fact of moderate scarcity. Following David Hume, Rawls argues that justice is only necessary and possible when society falls between the extremes of severe scarcity and abundance of goods. Whilst it is true that Rawls does mention moderate scarcity this fact does not figure into the deliberation of the parties in the original position and Rawls makes a number of idealising assumptions (e.g. full compliance, society is closed and filled with healthy people) that obscure how constraining scarcity will be on fulfilling the demands of his two principles of justice. 9 This becomes most evident if we consider some of the comments Rawls makes concerning maximin in Justice as Fairness: A Restatement. III. Maximin and the Cost-Blind Approach to Rights Rawls violates the assumption of moderate scarcity when he explains why the contracting parties would choose his two principles of justice over the principle of utility. Let me expand on this particular critique for it illustrates the problem with functioning at the level of ideal theory. By assuming full compliance Rawls’s idealising assumptions collapse into what Onora O’Neill (1966, 41) calls “idealization”. Idealization involves making claims that are actually false, in order to simplify an argument. Rawls engages in idealization when he argues that the maximin strategy would lead the parties in the original position to endorse his two serially ordered principles of justice over the principle of utility. I will assume that most of my readership are familiar with the basic details of Rawls’s original position so I shall not rehearse, in any great detail, those points here. The parties in the original position are placed behind the “veil of ignorance” and are presented with a shortlist of traditional conceptions of justice. They must decide which of these will secure them the largest share of social primary goods (rights and liberties, powers and opportunities, income and wealth and self-respect). Rawls believes that it is rational for the parties to choose his two principles of justice over the rival principles. He defends this claim by arguing that the two principles of justice are the maximin solution to the problem of social justice. “The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others” (Rawls, 1999b, 133). Given that the parties 10 do not know what their social position will be, or what their level of natural assets will be, it is rational, Rawls claims, for them to adopt the conservative attitude expressed by this rule. The maximin rule is “a useful heuristic rule of thumb for the parties to use to organize their deliberations” (Rawls, 2001, 97 note 19). The maximin rule, argues Rawls, instructs the parties to choose the two principles of justice for they guarantee the highest minimum payoff. Rawls believes that utilitarianism permits the interests of some to be sacrificed for the greater good of others and thus he argues that the principle of utility would not be chosen as it does not satisfy the requirements of maximin. Some have questioned whether it is rational for the parties to adopt such a conservative stance. John Harsanyi (1975), for example, argues that the maximin principle has some very irrational conclusions. But let us put these issues aside as my point is to show that Rawls falsely assumes that the rights entailed in the equal basic liberties principle are costless “negative” rights. Hence why he believes that the first principle of justice can be given an absolute priority over the principle of fair equality of opportunity and the difference principle. Without knowing the probability of being talented or born into a favourable social position, Rawls maintains that it is rational to assume you have the least desirable genetic endowments2 and family position. A crucial assumption that Rawls slips in in his discussion of maximin is that the contracting parties are deliberating about what their place would be within a society that exists in the circumstances of justice under reasonably favourable conditions. Elaborating on what the latter entails Rawls claims 2 This is qualified, however, by Rawls’s assumption that all persons fall within the normal range of functioning. So we should assume that the least endowed possess a decent minimum level of natural primary goods (e.g. health and vigor). 11 that they are the “conditions that, provided the political will exists, make a constitutional regime possible”.3 Conditions such as sufficient economic and technological development, sufficient natural resources and an educated citizenry. But this assumption is a blatant violation of one of the considerations blocked by the veil of ignorance. Namely, how rich or poor our society is. Now perhaps Rawls thinks that even poor societies could, it only they had the political will, become liberal democracies like America. But this assumption is simply baffling.4 It really demonstrates how localised and insular Rawls’s discussion of social justice is. How many of the world’s non- democratic countries are non-democratic simply because they lack the political will to become a constitutional democracy? It is more than just a coincidence that the world’s most stable constitutional democracies are also those that enjoy the highest levels of economic and technological development, are rich in resources and have an educated citizenry. The assumption that these favourable conditions will hold in our society violates the requirements of the maximin rule. This rule requires us to rank alternatives by their worst possible outcomes. The worst possible outcome would be to be the least advantaged in the least advantaged society that satisfies the circumstances of justice. Just as we cannot assume that we will be born with “reasonably favourable genetic endowments” or into a family with “reasonably favourable social advantages”, nor can 3 Rawls 2001, p. 101. 4 Though this assumption perhaps helps explain why some were naïve enough to believe that simply removing Saddam Hussein from power would be sufficient for establishing a democratic Iraq. The many challenges of re-building Iraq demonstrate that numerous considerations, besides simply lacking the “political will”, can impede the path to a stable constitutional democracy. Perhaps the Bush administration has been reading too much political philosophy and not enough political sociology! 12 we assume that we will be born into a society that has the reasonably favourable conditions stipulated by Rawls. One of the things the parties in the original position do not know is what the particular circumstances of their society (e.g. its economic or political situation) will be. We do not know how rich or poor our society will be. So Rawls is not justified in claiming that the parties can assume that whatever society they end up in it will be one in which the reasonably favourable conditions that make a constitutional democracy possible exist. Behind the veil of ignorance we do not know what the probability of being born into an affluent country is, just as we do not know what the probability of being born into an affluent family is. We can thus make a distinction between what I call the Lax Maximin Rule and the Stringent Maximin Rule. The former is adopted by Rawls and requires us to assume that we will be members of the least advantaged group in a society that exists in reasonably favourable conditions. The Stringent Maximin Rule requires us to assume that we will be the least advantaged in the least advantaged society. We can assume that our society will satisfy the circumstances of justice and thus social cooperation is better than the non- cooperative baseline of a Hobbesian state of nature. But we cannot assume, as Rawls does, that things will be more favourable than satisfying just this minimal condition. Once we emphasis the point that the parties do not know what the probabilities of being born into an affluent society are and thus that they should, as a matter of consistency, adopt the Stringent Maximin Rule, new considerations will enter into their deliberations. Considerations concerning how scarce resources could be best used to maximise the social primary goods of the least advantaged in a society with budget constraints. This shifts things in favour of the principle of utility over Rawls’s two 13 principles of justice as the latter does not take seriously the issue of tradeoffs in levels of rights protection. Such tradeoffs are necessary in any society but especially in those that are less affluent than a country like contemporary America. The parties in the original position, argues Rawls, know commensense facts of human psychology and political sociology (Rawls, 2001, 101). One of the basic facts of political sociology is that rights have costs. The fact that rights cost money is a simple truism but something many of us tend to forget. The basic rights enshrined in the American Constitution have budgetary costs. Here are some of the staggering costs, for the year 2002 alone, of funding the various agencies necessary for protecting negative rights in America: Defence: 327.8 billion dollars Homeland Security: 15.7 billion dollars Health and Human Services: 59.5 billion dollars Education: 48.5 billion dollars Justice: 18.6 billion dollars Environmental Protection Agency: 7.9 billion dollars5 Reflecting on the budget costs of protecting various rights is something which the parties in the original position must contemplate as they decide whether the principle of utility or Rawls’s two principles of justice will maximise the minimum. Assuming, as maximin requires them to, they will be the least advantaged members of the least advantaged society, they will know that it is inevitable that trade-offs in rights protection 5 These figures are taken from the Budget of the United States: Fiscal Year 2004 available at: http://w3.access.gpo.gov/usbudget/fy2004/budget.html 14 http://w3.access.gpo.gov/usbudget/fy2004/budget.html must occur. With only limited revenues available the state will not be able to make rights absolute in the way Rawls’s two principles presuppose. Faced with these kinds of considerations, which are ones the contracting parties must reflect upon, is it rational for them to opt for Rawls’s two principles of justice? No. The equal basic liberties principle, for example, tells us that individual rights should take a priority over concerns of equal opportunity and socio-economic inequalities. But Rawls assumes that these negative rights are costless. That any society that exists in the circumstances of justice under reasonably favourable conditions could, if it just had the political will, guarantee the protection of these rights. This is a common (but mistaken) assumption among both liberals and libertarians. Rawls assumes that negative rights only require the state to refrain from interference and thus satisfying the requirements of this principle will not have any (or at least no significant) costs so we can then move on to the second principle of justice to address positive state action, like providing adequate education. But “taking rights seriously means taking scarcity seriously” (Holmes and Sunstein, 1999, 94). Rawls’s two principles of justice do not do this. They give a priority to protecting rights and liberties over fair equality of opportunity and the difference principle but they do not deal with the issue of prioritising between different levels of rights protection. Furthermore, pursuing the former aim could be an never- ending aim. We could pump all our available wealth into making our streets and borders more secure, better monitoring our police force, ensuring food and drugs are safe for human consumption, etc. The first principle of justice is thus an impotent principle of justice. The parties in the original position would not choose such a principle over the principle of utility. 15 Unlike Rawls’s two principles of justice, the principle of utility is designed to tackle the issue of which trade-offs in rights protection must be made. Rawls of course sees this as its main shortcoming. Recall that for Rawls, justice denies that the loss of freedom for some is made right by a greater good shared by others. But in our deliberations about the maximin strategy we must assume that some loss of freedom is inevitable. We do not know if we will be born into an affluent country that has the (endless?) supply of resources necessary to satisfy the requirements of the equal basic liberties principle. We must assume that we will be born into a society that is rich enough to make pursuing social cooperation better than non-cooperation, but not so well- off that the rights of all can be guaranteed. Would we choose utilitarianism in this scenario? I think it is more rational to choose utilitarianism than the two principles of justice in such circumstances. Of course there is no guarantee that your rights will be protected in this utilitarian society. The same is true of a society governed by Rawls’s two principles of justice. But the utilitarian society will be able to make some progress towards prioritising among the different levels of rights protection the state could offer so that the trade-offs necessary to maximise utility can be made. It will invest scarce resources in protecting those rights most essential to human welfare rather than simply saying that all rights are absolute. Once we follow the conservative reasoning of the maximin strategy through, and reflect upon the commonsense facts of political sociology, we realise that no principle can guarantee the rights of minorities (or the rights of anyone). And this is precisely why we should reject Rawls’s priority rules which give an absolute priority to liberty. Such a strategy presumes rights are costless. But rights have costs; vast amounts of revenue are 16 needed to effectively legally enforce these rights. Rawls’s idealising assumptions (e.g. society is closed and there is full compliance) explain why he believes that the equal basic liberties principle can be guaranteed. Namely, that legally enforcing these rights only necessitates that the state refrain from interference. By ignoring the realities of non- compliance and scarcity of resources, Rawls’s theory of “justice as fairness” insulates itself from the most pressing concerns that face every real society. The assumption that protecting the negative rights will have not costs might be true if we lived in a society with full compliance and abundance of resources. But such an assumption goes beyond what ideal theory is suppose to presuppose- namely, that we be realistic about what the best of foreseeable conditions are. The best foreseeable conditions do not include the possibility of living in a society of saints or transcending moderate scarcity. Such conditions would violate Hume’s circumstances of justice. We would not need justice if this kind of utopian society were possible. A number of other simplifying assumptions that Rawls makes in his account of justice demonstrate that his abstraction collapses into idealization. Rawls (1999b, 83) invokes the assumption that everyone has physical needs and psychological capacities within the normal range, for example, when he attempts to identify who the least advantaged are. The difference principle requires the basic structure of society to be organized so that social and economic inequalities are to the greatest benefit of the least advantaged. But if all citizens are within the normal range of functioning then we would not need to worry about healthcare concerns that arise in a world where there are accidents and disease. Is such a fact one that we can ignore because, in ideal theory, we are concerned with what is required in the best possible scenario? No. No society (not 17 even a realistic utopia) can transcend the fact of human vulnerability. The idea that we can derive the principles of justice by simply ignoring or postponing such facts is severely misguided. Rawls’s reason for making this assumption is not that issues of just healthcare fall outside the scope of justice, rather they should be dealt with “at the legislative stage when the prevalence and kinds of these misfortunes are known and the costs of treating them can be ascertained and balanced along with total government expenditure” (Rawls, 1996, 184). But once Rawls’s legislators have the information about the prevalence of these misfortunes and the costs of treating them, they will need some criteria by which to make a judgment about how much should be spent on healthcare. If the fundamental principles of justice that are suppose to help guide their deliberations are ones that are derived for ideal societies that do not have people in need of medical treatment, then such a theory will be of no use to them. The principles of justice will be ineffective in helping them determine how much they should spend on healthcare. Rawls’s assumption that society is a closed system also results in further idealizations. This is evident when one considers one of the central institutional prescriptions he advocates in the paperback edition of Political Liberalism. This is the prescription that society should take the role as employer of last resort through general or local government, or other social and economic policies (Rawls, 1996, lix). This prescription might sound like a good idea when we assume that our society is the Rawlsian closed society (and a society consisting of fully compliant, healthy citizens). But the case for such a prescription is much harder to make in a society whose economy is subject to the pressures of a competitive global economy. Rawls assumes that 100% 18 employment is something that can be attained in the best foreseeable circumstances. But this is an enormous empirical assumption. It is arguably an easy assumption to make if one assumes society is closed but it is a very contentious empirical claim to make about real, open societies. Ballooning deficits, the migration of unskilled (and illegal) workers, coupled with the pressures for remaining competitive in a global economy, all pose formidable obstacles to the aim of having 100% employment. Nothing in Rawls’s account of justice addresses these non-ideal considerations. And thus the institutional prescriptions he advocates are of little use when applied to real societies. Like Rawls’s assumption that no major obstacles face legally enforcing constitutional rights (except having the political will), the idea that the only obstacle facing 100% employment is the political will to make this a reality is naïve. Contemporary political disagreements are largely disagreements over how to best achieve such an aim, rather than over whether such an aim is itself desirable. Neither American President George W. Bush nor Democratic candidate John Kerry would object to the idea that being employed is crucial for achieving self-respect, but the former believes that the best way of promoting job- growth in America is through tax cuts for the wealthy whilst the latter believes that preventing the outsourcing of jobs is the more appropriate tactic. So there is fundamental disagreement about what is possible, though one might retort that this disagreement is not one that concerns what is possible in the best conditions. But how confident should political philosophers who engage in ideal theorizing be in their judgment that they know what is feasible in the best possible conditions? I think we should be very modest about such judgments as they will rely on large, contentious empirical assumptions. Assumptions that one does not have to make explicit (let alone defend) if one can simply 19 say “I am talking about justice in ideal theory”. But such assumptions will receive the attention they deserve if one explicitly functions at the level of non-ideal theory. IV. Dworkin and Equality of Resources In the early 1980’s Ronald Dworkin (1981, 1981b) published a series of influential articles on equality. These two articles now form part of Dworkin’s recent book entitled Sovereign Virtue. Dworkin’s theory is in many respects an attempt to improve upon Rawls’s theory. His account of “equality of resources” attempts to take seriously the concern for mitigating natural inequalities (i.e. handicaps) and holding people responsible for their choices. Dworkin’s defence of equality has given rise to the position Elizabeth Anderson (1999) calls “luck egalitarianism”.6 Luck egalitarians construct their theories around what is called the choice/chance (or choice/circumstances) distinction. “People’s fates are determined by their choices and their circumstances” (Dworkin, 2000, 322) and this must remain, argue luck egalitarians, a fundamental insight when considering what constitutes a just distribution. Luck egalitarians disagree on exactly what should be equalised (e.g. resources, opportunity for welfare, etc.) but they believe that inequalities in the advantages that people enjoy are just if they derive from the choices people have voluntarily made, but that inequalities deriving from unchosen features of people’s circumstances are unjust. Luck egalitarians also function at the level of ideal theory and thus are guilty of idealization. And this results in impotent or misguided normative prescriptions. 6 Those who endorse this position include, among others, Ronald Dworkin (2000), Richard Arneson (1989), G.A. Cohen (1989) and Philippe Van Parijs (1995). 20 Dworkin’s egalitarianism is premised on two fundamental principles of ethical individualism- the principle of equal importance and the principle of special responsibility. These principles maintain the following: Principle of Equal Importance: It is important, from an objective point of view, that human lives be successful rather than wasted, and this is equally important, from an objective point of view, for each human life. Principle of Special Responsibility: though we must all recognise the equal objective importance of the success of a human life, one person has a special and final responsibility for that success- the person whose life it is. (Dworkin, 2000, 5) Dworkin’s attempt to merge the two fundamental principles of ethical individualism are most stark in his hypothetical tale of shipwrecked survivors who are washed up on a desert island that has abundant resources. I will assume that most of my readers are familiar with the basic details of Dworkin’s tale. My criticism focuses on the normative prescriptions that Dworkin believes can be derived from his hypothetical insurance scheme. After telling the story about the hypothetical auction, the challenge for Dworkin is translating how this applies to real, non-ideal societies. In the real world, he argues, there is a need for taxation and redistribution. Income tax is a device society can use to neutralise the effects of handicaps and differential talents. A tax system, admits Dworkin, can only roughly approximate the results of the insurance scheme and will not achieve a truly ambition-sensitive/endowment insensitive distribution. But the problems facing Dworkin’s theory are more formidable than the concern that it is only a second- best solution. Dworkin assumes that the appropriate level of public funding for healthcare and welfare can be determined by asking how much people would insure against these misfortunes in the hypothetical auction (where people do not know what 21 their risk is of faring poorly in natural endowments). But this makes a number of idealizations that obscure our liberal and prioritarian commitments. Firstly, we must ask why Dworkin’s insurance scheme is limited to only these two forms of misfortune? Citizens of even affluent liberal democracies are vulnerable to numerous forms of misfortune beyond handicaps and differential talents. We face risks of misfortune from crime, food preparation and sanitation, terrorist attack, natural disasters, injury at work, pollution, etc. So if Dworkin is to utilise the insurance scheme as the model for determining the appropriate level of state provisions then we must add protection against all forms of brute luck disadvantage to the list of things we could insure against. Like Rawls, Dworkin assumes that protecting the equal basic liberties of all will be costless, hence why he is only concerned with the costs of healthcare and welfare. But this assumption is mistaken. Rights cost money. Legally enforcing any right (e.g. protecting property, security of the person, education, etc.) will mean that numerous strains will be placed on the funds available for promoting the aims of healthcare and welfare. So the question “How many of your 100 clam shells would you spend insuring against disease, illness, (brute luck) accidents and unemployment” must be extended to something like the following: Non-ideal Insurance Scheme (or Real Politics!): How much would you be willing to spend on insurance to mitigate the misfortunes of disease, illness, (brute luck) accidents, unemployment, crime, terrorism, natural disasters (hurricanes, floods, famine, etc.), injury at work, and every other conceivable misfortune that citizens could face. Dworkin is not justified in limiting his insurance scheme to the two brute luck considerations he limits himself to (i.e. handicaps and differential talents). Furthermore, his discussion of healthcare and welfare ignores many other complex considerations that 22 arise in real life. Consider, for instance, his discussion of welfare reform in Sovereign Virtue. Dworkin’s hypothetical unemployment insurance scheme does not provide a definitive answer to the question of what welfare program real societies should adopt but it does “bracket a range of welfare programs that a reasonable person or legislature might think required by the twin principles that people’s lives are of equal importance and that each person has a responsibility to take control of his own life” (Dworkin, 2000, 340). In particular, Dworkin believes that “a welfare scheme with no cutoff, that either may or must provide training and job assistance, and that conditions compensation on good-faith endeavor to find employment, is preferable either to a more severe or a more generous program” (2000, 340). But one may reasonably wonder how Dworkin comes to the conclusion that equality precludes cutting off welfare benefits as such a measure might be seen as a blatant violation of Dworkin’s principle of special responsibility. Dworkin anticipates this response and argues that conservatives who maintain that long-term unemployment is the result of work-aversion or other negative traits (such as laziness) overestimate the extent to which personality accounts for these things. The conservative argument relies on predictive judgements about the motivational and behavioural consequences of welfare (e.g. that welfare perpetuates a culture of dependency). Rather than attempt to substantiate the claim that the factual and predicative judgements of the conservative argument are false, Dworkin simply claims that his competing welfare strategy does not get entangled in these controversial psychological presumptions. But this response to the conservative argument is unsatisfactory because Dworkin’s hypothetical unemployment insurance tale is bound to get just as entangled in these issues. Consider the following 23 passage in which Dworkin asks us to imagine what unemployment insurance people in contemporary America would be willing to buy. But we might nevertheless capitalize on the imaginary [unemployment insurance] exercise by asking what unemployment insurance people with a representative mixture of the tastes and ambitions most Americans have… would buy if they had the wealth that is average among us and were acting prudently. There is no single right answer, I agree, to hypothetical questions like that one. Which insurance opportunities people would be offered, and which of these they would take up, would depend on hosts of contingencies and market and personal decisions that we can sensibly imagine in different ways. But if we could construct a narrow range of unemployment insurance policies such that it is plausible to assume that almost every American who was acting rationally would buy a policy within that range, whatever other insurance he added to it, we could design the core structure of an eminently defensible welfare program based on that information. (Dworkin, 2000, 333) If many Americans believe (as no doubt at least some do) that long-term unemployment is mostly a case of individual choice and not circumstances beyond their control, then why should we believe Dworkin’s claim that the insurance scheme would produce a narrow range of unemployment policies that precluded those that cut benefits off after a few years of receiving benefits? Whether or not it would be prudent to opt for policies that have no limit on welfare benefits will depend on what we think of the controversial psychological presumptions Dworkin thinks his approach can avoid. Without providing a more conclusive argument as to why we should not ascribe more personal responsibility to the issue of unemployment, Dworkin’s conclusions for welfare reform are unpersuasive. Theorising about what people would choose in ideal theory does not dispense with the difficult factual and predictive judgements about the motivational and behavioural consequences of welfare. So once again ideal theory obstructs, rather than clarifies, the particular stakes involved in fundamental questions about justice. 24 The charge that the Dworkinian insurance model obstructs our prioritarian commitments is evident in the proposal put forth by Justice Burley (2000) in “The Price of Eggs: Who Should Bear the Cost of Fertility Treatments”. Burley argues, via recourse to Dworkin’s theory of equality, “that justice demands that [infertile] individuals be compensated for all or part of the costs of the assisted conception techniques that they undergo” (2000, 129). Burley believes the Dworkinian approach to justice is attractive because it is an alternative to needs-based approaches to healthcare which get drawn into a debate about what our “fundamental needs” are. The needs-based approach is typically viewed as being opposed to state-funding of assisted conception techniques because infertile individuals are not at risk of physical harm if they do not undergo such treatments. The Dworkinian model only requires us to determine if infertility counts as a deficit in personal resource holding (i.e. a handicap). Burley (2000, 141) argues that two conditions must be satisfied in order for fertility to count as a handicap: (1) the infertile person must envy the capacity of others to bear genetically related offspring and (2) the deficit in personal resources at issue must not be traceable to her tastes of choices. After stating the case for why these two conditions are satisfied in the case of infertility, Burley remarks: Recall that only those handicaps individuals in the aggregate would have insured against will be compensated. In the hypothetical insurance scheme people would have knowledge of the actual incidence of this handicap. They would know that 20 per cent of all couples experience infertility, and that up to 10 per cent of this number will not conceive other than through artificial means… I contend that in this situation the average individual would deem having genetically related offspring a constitutive element of leading a good life… It is therefore plausible to insist that individuals in the aggregate would stipulate infertility as one handicap that they were particularly concerned to receive compensation for. (Burley, 2000, 142) 25 The problem with Burley’s argument is that she does not consider how enormous the list of possible misfortunes that we could insure against is. Focusing on one handicap in isolation will of course garner support for the position that this handicap is one we should insure against. But when placed against the background of all possible handicaps (and other possible misfortunes) where does the interest of having genetically related children figure? That is the question that Burley needs to address and it is not one that political philosophers can answer by simply engaging in armchair theorising. The danger of invoking the Dworkinian model is that we will tend to treat particular misfortunes in isolation, as Burley does with infertility, and then make the leap to the real-world prescription that compensation for this particular disadvantage is required. Given scarcity of resources, this conclusion could jeopardize state-funding for other, more pressing, treatments. By attempting to forego a debate about what our “fundamental needs” are, Burley’s position does not give adequate weight to the other forms of possible misfortune that we are vulnerable to. Engaging in the ideal theorising of the Dworkinian model obstructs the importance of the empirical information (e.g. how pervasive and severe different forms of disadvantage are, etc.) one would need to have in order to make informed decisions about the allocation of scarce public funds. The problems facing Dworkin’s version of egalitarianism, and luck egalitarianism more generally, are more extensive than the ones I have mentioned above. Two recent critics of luck egalitarianism, who raise pragmatic concerns about the adequacy of it as a normative theory, are Jonathan Wolff (1998) and Elizabeth Anderson (1999). In “Fairness, Respect and the Egalitarian Ethos” Wolff criticises the egalitarian methodology, a methodology that invokes fictional examples and two-person worlds. 26 Wolff does not dispute the claim that such an approach to political philosophy has some gains, but he expresses concern about what the losses of such a methodology are. In particular, by making responsibility the focus of an egalitarian theory of justice luck egalitarians run the risk of compromising other important values- such as respect. Collecting the data required to actually achieve an “ambition sensitive”/ “endowment insensitive” distribution would result in the unfair treatment of the disadvantaged. Wolff argues: To press a claim, then, one is required not merely to admit but to make a convincing case that one is a failure, unable to gain employment even when there is no difficulty for others. Some people refuse to claim benefit on the grounds that they do not want to admit that they cannot find a job. But think how it must feel- how demeaning it must be- to have to admit to oneself and then convince others that one has not been able to secure a job, despite one’s best efforts, at a time when others appear to obtain employment with ease…. Thus the unemployed must give a humiliating answer to a question it is humiliating even to consider, in order to qualify for welfare benefit. (Wolff, 1998, 114) In “What is Point of Equality?” Elizabeth Anderson makes a similar critique of luck egalitarianism. She argues (1999, 289) that luck egalitarianism fails the most fundamental test any egalitarian theory must meet: that its principles express equal respect and concern for all citizens. It fails this test in a number of ways. For example, it excludes some citizens from enjoying the social conditions of freedom on the spurious ground that it’s their fault for losing them. Recall Dworkin’s hypothetical insurance scheme. Dworkin argues that justice demands that the state compensate everyone for whatever risks of bad brute luck they would have insured themselves against if all were equally likely to suffer from the risk. But a problem arises with respect to what Dworkin calls “option luck”. Option luck concerns risks that are the result of our choices. Dworkin’s principle of equal concern requires us to compensate people for the 27 misfortunes of bad brute luck but not bad option luck. Taking this line seriously has troubling consequences. It permits society to turn its back on many who may need medical assistance due to the decisions these individuals have voluntarily made (e.g. negligent drivers, those in dangerous occupations, etc.). The criticisms raised by Wolff and Anderson reinforce the point that luck egalitarians have failed to take seriously the question of how their normative principles of justice are to be related to real life. As Wolff argues, egalitarian philosophers “should become aware that the task for the egalitarian philosopher is at best only half done when the ideal principle is found. The next question is: how does justice fit into a wider egalitarian view?” (Wolff, 1998, 120-1). Starting at the level of non-ideal theory will help political philosophers develop a more complete conception of justice. But how should political philosophers who wish to take non-ideal theory seriously proceed? I now attempt to shed light on this general methodological issue. V. Conclusion: Where the Action (Really) Is- On the Site of Non-Ideal Theory I have argued that armchair theorising about justice in ideal theory severely limits the practical insights of liberal egalitarianism as such theorising often brackets the complex and contentious issues that make the struggle for justice in real societies difficult. In this concluding section I seek to make a positive contribution to helping political philosophers shift from ideal to non-ideal theory. My argument here is primarily methodological and I do not attempt, in this paper, to take on the more ambitious project of actually defending a conception of liberal justice in non-ideal theory.7 But drawing from the lessons to be 7 ---------------------------------------------------------------------------------------------------------- -------------------------------------------------------. 28 learned from the shortcomings of the theories of Rawls and Dworkin, liberal egalitarians should take seriously, at a minimum, the issue of tradeoffs and the value of democracy. In order to enhance the transformative potential of liberal egalitarianism political philosophers must engage in a self-conscious dialogue, not only with other philosophers (e.g. libertarians, conservatives, etc.), but also with executives, legislatures, courts and other public administrators. Doing this ensures that non-ideal considerations, like budget constraints, disagreement, limited knowledge and indeterminacy, will figure prominently into our philosophical analysis. Rather than bracketing these complex considerations we ought to endorse a public philosophy that takes non-ideal considerations seriously. So practical political philosophy is itself an exercise in deliberative democracy. Political philosophers should aspire to satisfy what Robert Goodin (2003) calls “deliberation from within”. “Deliberation from within” means that we hold others “imaginatively present” in our deliberations about what the demands of justice are. By doing this we will recognise that theorising at the level of ideal theory violates the demands of “deliberation from within” for it asks us to bracket or ignore many of the complex concerns that arise in real, non-ideal societies. Consider, for example, what public administrators would say about Rawls’s assumption that society is a closed system and a society of normal, fully cooperating members. Like our hypothetical aviation expert Dave, who assumes all flights are domestic flights and that concerns about airplane safety and weather do not arise, the political philosopher who engages in idealising hypotheticals will alienate many from their deliberations about justice. In particular, they will alienate those who actually face the distributive questions that normative theories of justice address. For example, legislators and public administrators who must make important decisions about the 29 allocation of scare public funds. If we do not make these persons “imaginatively present” in our theorising about justice then we run the risk that our normative conclusions will be impotent. At a minimum, political philosophers who function at the level of non-ideal theory must take seriously the facts of scarcity and disagreement. Doing this will mean that the issue of tradeoffs and the value of democracy should figure more prominently in our theorising about justice. Taking tradeoffs seriously means that we should reject the idea that we can serially order the principles of justice. Taking democracy seriously means that political philosophers should have realistic expectations concerning what their armchair theorising can accomplish. We should purge ourselves of the urge to engage in normative projects that make democracy and politics superfluous. Political philosophers should aspire to enhance, rather than pre-empt, our deliberations concerning what important political values (e.g. justice, freedom, equality, etc.) both mean and require. Conceiving of the discipline in this way will help enhance the transformative potential of liberal egalitarianism and at the same time expand the diversity of interlocutors which political philosophers can engage with. By making a wider array of people “imaginatively present” in our theorising, political philosophers will realise the severe limits of “I-expect-you’d-all-like-to-know-what-I-would-do-if-I-ruled-the-world” normative theories. The recent “deliberative turn” (Dryzek, 2000) in democratic theory is encouraging not only because it has brought theoreticians of democracy and justice closer together, but as more political philosophers begin to internalise the prescriptions of deliberative democracy the greater the chances are that liberal political philosophy in 30 particular will revive its practical focus and inspire a public ethic that takes seriously the complexities of justice in non-ideal theory. BIBLIOGRAPHY Anderson E (1999). What is the Point of Equality? Ethics 109(2): 287-337. Arneson R (1989). Equality and Equal Opportunity for Welfare. Philosophical Studies 56: 77-93. Burley J (2000). The Price of Eggs: Who Should Bear the Cost of Fertility Treatments. In Harris J, Holm S (eds). The Future of Human Reproduction (paperback edition). Oxford: Oxford University Press. pp. 127-149. Carens J (2000). Culture, Citizenship, and Community. Oxford: Oxford University Press. Cohen GA (2003). Facts and Principles. Philosophy and Public Affairs 31(3): 211-245. ------------ (1989). On the Currency of Egalitarian Justice. Ethics 99(4): 906-44. Dryzek J (2000). Deliberative Democracy and Beyond: Liberals, Critics, and Contestations. Oxford: Oxford University Press. 31 Dunn J (1990). Reconceiving the Content and Character of Modern Political Community. In Dunn J (ed). Interpreting Political Responsibility. Oxford: Polity Press. pp. 193-215. Dworkin R (2000). Sovereign Virtue. Cambridge, Mass.: Harvard University Press. ------------ (1981). What is Equality? Part 1: Equality of Welfare. Philosophy and Public Affairs 10(3): 185-246. ------------ (1981b). What is Equality? Part 2: Equality of Resources. Philosophy and Public Affairs 10(4): 283-345. ------------ (1978). Taking Rights Seriously. London: Duckworth. Goodin R (2003). Reflective Democracy. Oxford: Oxford University Press. Harsanyi J (1975). Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’s Theory. American Political Science Review 69: 594-606. Holmes S, Sunstein C (1999). The Costs of Rights: Why Liberty Depends on Taxes. New York: W.W. Norton & Company. Mason A (2004). Just Constraints. British Journal of Political Science 34: 251-268. O’Neill O (1996). Towards Justice and Virtue: A Constructive Account of Practical Reasoning. Cambridge: Cambridge University Press. Rawls J (2001). Justice as Fairness: A Restatement. Cambridge, Mass: Harvard University Press. ------------ (1999). The Law of Peoples. Cambridge, Mass.: Harvard University Press. ------------ (1999b). A Theory of Justice (second edition). Oxford: Oxford University Press. ------------ (1996). Political Liberalism (paperback edition). New York: Columbia University Press. Shapiro I (1999). Democratic Justice. New Haven and London: Yale University Press. Van Parijs P (1995). Real Freedom for All. Oxford: Oxford University Press. Waldron J (1999) Law and Disagreement. Oxford: Oxford University Press. Wolff J (1998). Fairness, Respect, and the Egalitarian Ethos. Philosophy and Public Affairs. 27(2): 97-122. 32 
work_zw3fdvurhvgela7cfo4wu7dlsa	----	CJPR284736.vp 10.1177/0887403405284736Criminal Justice Policy ReviewMartin / Restoring Justice Through Community Policing Restoring Justice Through Community Policing The Northern Ireland Case Margaret E. Martin Eastern Connecticut State University, Willimantic, CT Principles of restorative justice guide new approaches to criminal justice policy and prac- tice worldwide; however, scant attention is paid to policing within this paradigm. This article describes the theoretical, practice, and value dimensions of restorative justice and examines these in relation to community policing ideology and practice. It presents a pol- icy analysis of the bold Northern Ireland police reform experience and explores the cen- tral dilemmas and opportunities inherent in transforming police within communities in conflict. In spite of substantial implementation challenges, community policing may restore justice because of the demand for a sustained peace, dynamism generated when police reform is part of larger social reform, and determination elicited from the poignant recognition of prior injustice. Through police reform, there is potential for greater local democratic control and accountability of the state social control mechanism. Keywords: community policing; restorative justice; Northern Ireland Principles of restorative justice guide new approaches to criminal justice policy andpractice worldwide. Central to the ideals of restorative justice are prevention of harm, human rights and dignity, empowerment of those disempowered, and peace- making. Both the philosophy and practice of restorative justice within communities at peace and communities in conflict have been advanced significantly during the past decade. Much of the practice, however, has focused on postcrime events such as offender-victim mediation, alternative sentencing, restitution, conferencing, and offender reintegration. Little attention has been placed on the beginning stages of the process, especially policing. This article examines, from theoretical and practical per- spectives, the development of new policing policy as part of the peace process in Northern Ireland. It frames the study within the context of restorative justice. It exam- ines new structures (organizational, interorganizational, political, and community), processes, and cultures that are being created to redress historical wrongs and propel peace building. It examines policing in societies in transition within the context of emerging criminal justice ideologies and practices as well as international structures, opportunities, and threats. 314 Criminal Justice Policy Review Volume 17 Number 3 September 2006 314-329 © 2006 Sage Publications 10.1177/0887403405284736 http://cjp.sagepub.com hosted at http://online.sagepub.com Northern Ireland is engaged in a tumultuous and historic change. With the Good Friday Agreement of 1998 (United Kingdom and the Republic of Ireland, 1998) the foundation for peace building was established, but the processes of changing social institutions and individual beliefs have been difficult. Although almost all elements of social structures and processes must change in the process of peace, no one aspect of this change has been more contentious and central to the development of a new civil society than the reconstruction of policing. Constantly challenged and modified, the newest construction of policing and policing policy represents one of the largest and boldest experiments in community policing globally. Fundamental Questions Restorative justice ideas have emerged as newly acceptable in American and global criminal justice practice. Although not yet considered mainstream, certainly some of the principles of restorative justice are reshaping justice policies. Yet there has been little attention to the role of policing in this shift. Although there has been some atten- tion to problem mediation, arrest diversion, and antiarrest approaches, there remains question about how or if policing practice could be restorative. Perhaps to discuss whether policing can be congruent with restorative justice prin- ciples, it must first be necessary to ask whether policing itself is essential to social functioning or holds intrinsic value for society. Certainly in any articulation of nonutopian society, we must argue that some form of social control is necessary for community to function. In complex societies in which informal means of social con- trol are no longer sufficient, policing may be necessary to ensure fundamental human needs of safety and security. Morris argues that both public safety or security, and per- sonal safety, require peace and order and are components of restorative justice (Mor- ris, 1992). Policing is fundamental to these goals and to the protection of domestic and international human rights. Policing is a public good (Loader & Walker, 2001), but as the legitimate purveyor of state coercion, it must be held accountable to democratic control. Policing may be necessary for the effective functioning of other social institutions. The battered women’s movement for instance, demonstrated that personal safety within the family might require police intervention. The use of police to intervene in institutions such as families, schools, and workplaces is however not without problem (Berger, 2003; Martin, 1999). Abuses of police power are well documented and the ability to protect the most vulnerable members of society is questioned as police are cited for both their failures to protect and their continuation of oppression. There is enough evidence, however, from societies in conflict and in transition from war to peace to demonstrate that although complex and wrought with significant challenge, there is a fundamental need for police to act as maintainers of peace and order (Brewer, 1991; United Nations, 2003). The vulnerability and risk faced by per- sons in societies in conflict demonstrate the centrality of policing to the maintenance of order and safety of persons as well as the preservation of cultural identities through Martin / Restoring Justice Through Community Policing 315 protection of cultural artifacts. In the process of peace building, states must often wrest control of policing from paramilitaries or other forces. Marenin (1982) argues that although there is no state during revolutions or in anarchy, the state is a practical neces- sity during other periods, for there is a demand for order. Order may be general, assur- ing the safety of the public, or specific, using the power of the state to advance particular interests. Policing, seen through the lens of critical criminology, has traditionally been viewed as a state mechanism for repression, oppression, and entry into the punitive apparatus of the justice system of the state. It is without doubt that policing has been used as an instrument of repression and has been integral to the maintenance of the state (Williams, 2003). But as Marenin (1982) states, “The police, a priori, are neither repressive nor deserving of support as defenders of a universal consensus on the public good” (p. 259). Historically, policing developed concurrently with private capital and the centralization of political power (Bayley, 1994). These associations may not be essential or inevitable. If societies develop transitional practices to produce a more ideal set of social relations centered in civil society and human rights, they must begin by crafting new social structures and processes that are consonant with ideals of restorative justice. Therefore, I will examine whether there are elements of emerging practice in community policing that may be consistent with restorative justice principles. Restorative justice poses complex questions about equality and justice. These questions are highlighted in police policy and practice. Can community policing be a transitional structure to promote a nonpunitive, restorative justice system? Can polic- ing itself ever be restorative? Could policing be restorative in stable societies, in soci- eties in conflict, or in both? This article will present a policy analysis of the Northern Ireland police reform experience. It will examine the policy now in formation, with some attention to the process of the policy development. Although it is too early to examine the impact of the policy in relation to restorative justice principles, it will examine contradictions and challenges in the policy framework. Congruence of Community Policing With Restorative Justice Principles Community policing may be a fashionable policy buzz word or a complex and changeable set of philosophies, values, and practices that are simultaneously old and very new. Undoubtedly, however, community policing does represent a particular approach to police practice that can be contrasted with militaristic and managerialist policing and that has gained popularity and credibility globally, especially during the past decade. Community policing is characterized as democratic, accountable, and transparent. It fits with emerging notions of civil society (Munck, 2002) that view social institutions as reflecting local needs and representing the multiple interests within communities. 316 Criminal Justice Policy Review Community policing is now the dominant paradigm of policing in the United States, with more than 85% of the U.S. population now served by some type of com- munity policing force (Hickman & Reaves, 2001). It is rapidly becoming a preferred policy of policing internationally. Community policing differs from recent traditional American and British policing in its goals, accountability mechanisms, processes, and values. Until the late 1980s, both United States and British police operated as an arm of the justice system concerned with crime solving, apprehension of lawbreakers, and the promotion of law and order. The organizations were accountable to the executive branch of government, often shaped by political processes and sentiments. Organiza- tionally, police departments valued authority, loyalty, efficiency, and managerial and technical competence. The new approach to policing took hold at a time when fear of crime continued to climb while the crime rate receded, and research suggested that lit- tle in police practice actually reduced crime rates (Bayley, 1994). A new or renewed focus on developing knowledge about, and relationship with, neighborhoods and communities emerged. This new approach to policing highlighted the importance of knowing the community, not just to solve crimes but also to actively prevent crime and to solve social problems that were associated with crime. Community policing was intended to promote a heightened quality of life. Accountability broadened to include sanction from representatives of the community and its various interests. Acceptance required more transparency in police operations, openness in communication, and values that supported these new structures and processes. Perhaps most important, the community-policing philosophy necessitated values change that included respect for diversity, power sharing, collaboration, and problem solving. Restorative justice practices emerged from the victims’ rights movements and very early approaches to offender rehabilitation. These practices ultimately reject punitive, retributive policy and practice, and embrace peacemaking and human need attain- ment. Restorative justice approaches seek to make whole the victims of crime. They also assist offenders in restoring their humanity, lost too in the process of crime. Restorative justice approaches move beyond the individuals affected by crime, to include understanding of the structural aspects of society and communities that create harm and foster violence. Restorative justice is an active, collaborative strategy to pre- vent injury and harm as well as promote human well-being and equality (Quinney, 2000; Sullivan & Tifft, 2001). In examining the relationships between restorative justice and community polic- ing, it is important to note that they exist at different levels of abstraction and, perhaps more fundamentally, emerged in opposite directions. Restorative justice is an ideal that is given meaning and relevance through practitioners seeking alternatives to puni- tive justice practices. It continues to evolve and be tested against ideals. Community policing, on the other hand, emerged from a set of practices that eventually became characterized and rationalized by an ideology. Given this challenge, we can examine the congruence of restorative justice principles with the ideals of community policing practice in three key areas: the expressed goals or ideology of each, the values espoused, and the practices and processes employed. Martin / Restoring Justice Through Community Policing 317 Three areas of analysis will be used to examine larger goals of community policing and restorative justice: the relationship to the state, critique of social structures, and human needs and relationships. Perhaps the most congruent goals of restorative jus- tice with community policing are those that relate to individual well-being and human need. Clearly, restorative justice seeks to prevent harm and promote human well- being. Community policing too articulates this goal. More specifically, it seeks to pre- vent injury and loss as the result of crime and to promote human safety and security. Human relationships and the uniqueness of human experience are the focus of both restorative justice and community policing. In both, the meaning of crime and the felt needs of community are central. Restorative justice principles seek to repair relation- ships that were harmed through crime, either the relationship of the victim with offender or offender with community. The goal of restorative justice is to return the victim to a previctimized or improved state—to make the victim whole. It also seeks equality as a component of a restored relationship. Whereas these goals can more appropriately be met through postarrest practice (mediation, conferencing, alternative sentencing, restitution, and the like), there can be a police role in restoring relation- ships. In fact, community policing does seek to engage factions within communities that are in conflict and to provide nonpunitive community alternatives, such as referral to resources or treatment, for persons in need. But here too there are differences. Restorative justice principles seek not only social harmony but also inner transforma- tion of the individual through processes of understanding, empathy, compassion, and forgiveness. Community policing ideally seeks social harmony through the promotion of law-abiding and community-enhancing behavior with little overt concern for cognitive, emotional, or spiritual change or transformation. In relation to values and practices, there may be less correspondence. Although the ideal of restorative justice articulates an understanding of how social institutions and structures have created and sustained harm to individuals and groups (and, in some instances, fostered violence), there is little structural critique in the community polic- ing idea. Individual failing, including the problems of drug abuse, family and peer dif- ficulties, and the lack of deterrent effect of the justice system reinforce police ideology about the causes of crime (Crawford, 1997). Problems of racism, unemployment, pov- erty, and other social-structural problems are not central to community policing rhetoric. Neither restorative justice nor community police practice are necessarily anti- statist, although the ideals of restorative justice acknowledge the role the state plays in producing and maintaining oppression. Many restorative justice practices seek to remove the state’s formal mechanisms of social control to create community-based systems of change. Theoretically, neither restorative justice nor community policing are antibusiness, as business is seen as having a vital role in community life. Although neither restorative justice nor community policing are delinked from the state (as both in practice are at least partially accountable to the state), they are community centered. Both have the potential for greater amounts of delinking, especially through the evolu- tion of civil society approaches that will be discussed later. 318 Criminal Justice Policy Review There is some value congruence between the ideals of restorative justice and the espoused principles of community policing. In each domain, human rights, equality and equity, power sharing, respect for diversity, culturally competent and inclusive practice, and accountability to the community are core values. Perhaps less evident in restorative justice principles is the notion of transparency. This feature of civil society emphasizing community accountability is critical to reformed policing and certainly related to a legacy of corrupt and secretive policing. Peacemaking is central to restor- ative justice values and included in this are the values of nonretribution and non- punishment. Especially in societies in conflict, community policing can be viewed as a component of peace building. Its approach is through order maintenance first, then the prevention of harm and crime. There seems, however, to be little critique of retribu- tive ideals or policing as the point of entry into a punishment-based criminal justice system. In practice and process, there are some areas of correspondence between restorative jus- tice and community policing, yet ironic differences. The practices of community policing appear to be similar to central restorative justice practices, such as victim-offender mediation and conflict management. Problem solving, collaborative, democratic, action-oriented, and empowerment-based practices are identified in community policing as important to best practice. In both restorative justice and community policing, the work is local, decentralized, and based on intimate knowledge of the community and fosters respect for the felt needs and unique meanings of the experiences of persons in the community. Restorative jus- tice practice gives voice to persons silenced in retributive justice systems. Both vic- tims and offenders are able to express their needs and wants in the search for under- standing and change, whether the goal is peace, forgiveness, safety, restitution, rehabilitation, or other outcome. Importantly, offenders are a focus of intervention both to recognize and restore their humanity in the process and to ensure reintegration into community. In community policing, there is an emphasis on the voice of multiple communities. There is an acknowledgement that in managerialist or professional forms of policing, professional expertise and political considerations shape policy and practice. Conversely, the development of trust, fairness, and effective decision making are considered central to effective community policing practice. The public views these as central to the legitimacy of police (Tyler & Wakslak, 2004). Community policing reform reflects the practice principles of antibureaucratic organizational practice (Pranis, 1998). Counter to the typical managerialist orga- nizational structure of policing, community policing places strong emphasis on accountability mechanisms, including the development of feedback systems, access opportunities, evaluation mechanisms, and independent oversight. The emphasis on accountability to community is one of the most significant distinctions of community policing from recent policing ideologies and the one with the greatest potential for organizational and social reform and transformation (Herbert, 2001). There is, however, little attention to the role of offenders in community policing rhetoric, the focus being quite consistently on the law-abiding public. In fact, the prev- alent association of “broken windows policing” (Kelling & Coles, 1996, p. 20) with community policing has produced an order-maintenance focus that has vilified and Martin / Restoring Justice Through Community Policing 319 criminalized many with little evidence of social benefit (Harcourt, 2001). Crime is constructed traditionally, as Bergalli and Sumner (1997) state, “Crime is a category to bifurcate the normal [law abiding] from the pathological [criminal]” (p. 200). Com- munity policing is best described as police practice to protect and develop the law- abiding community, saving those who can be saved from persons who are potential offenders. The practice continues to create and maintain “the other.” As in early social welfare policy development, some persons are considered deserving of efforts to be saved but others may never be integrated into the law-abiding community. Community Policing in Northern Ireland: The Attempted Transformation of an Organization Northern Ireland’s embrace of community policing is unique and complex. It rep- resents both the best of historical policing in Britain, the legacy of the peeler, and a necessary strategy to create a way forward in a divided society. The Royal Ulster Con- stabulary (RUC), the police force for the six counties that comprise Northern Ireland, was until recently the police force of the province, implemented at the time of partition of the island of Ireland. The force was seen as either the protector of the state and way of life by some residents (Brewer, Guelke, Hume, Moxon-Browne, & Wilford, 1996) or as a brutal violator of human rights and corrupt arm of a colonial power by others (Ellison & Smyth, 1996). The reformed police service, the Police Service of Northern Ireland (PSNI), is being reconstructed as the result of the peace accord known as the Good Friday Agreement (United Kingdom and the Republic of Ireland, 1998), the report from the Independent Commission on Policing,The Patten Report(Independent Com- mission on Policing for Northern Ireland, 1999), and numerous legislative changes in the British Parliament. The RUC and PSNI have also undertaken organizational change inter- nally (Police Authority of Northern Ireland, 2000). Patten states, “The issue of policing is at the heart of many of the problems that pol- iticians have been unable to resolve in Northern Ireland” (Independent Commission on Policing for Northern Ireland, 1999, p. 2). The charge for community policing was clear. Peace requires “a new beginning to policing in Northern Ireland with a police service capable of attracting and sustaining support from the community as a whole” (United Kingdom and the Republic of Ireland, 1998, p. 22). Without providing a thor- ough and nuanced description of the RUC to better assist in understanding the context of the transformation of the service to the PSNI, we will simply present that the RUC was one of the largest police forces per capita in the world; it employed 92% of per- sons from the dominant (Protestant and unionist) community when the community was divided approximately 52% to 48%; and although it was perceived as acceptable to many persons in the province, it was seen as highly unacceptable to relatively large segments of the community (Ellison & Smyth, 2000; Independent Commission on Policing for Northern Ireland, 1999; Mulcahy, 1998; Pickering, 2002). Its organiza- tional structure and culture could be described as managerialist, professional, and 320 Criminal Justice Policy Review Martin / Restoring Justice Through Community Policing 321 bureaucratic (Brewer et. al., 1996) at best, or, according to other observers, racist and corrupt (Ellison & Smyth, 2000; Mulcahy, 1998). Although the RUC did begin efforts to change the organization from within and attempted to escape the quagmire of deeply divided political positions and a crisis of public legitimacy (Mulcahy, 1998), the thorough, balanced, and cutting-edge recom- mendations of the Patten Commission were the most significant blueprint for organi- zational and policy change. Initially met with modest acceptance by international observers and many of Northern Ireland’s centrist political parties, the recommenda- tions were challenged by both left and right. In the ensuing few years, Sinn Féin, a political party and voice of the republican movement, has moved from criticism to acceptance of Patten and has pressured the British government to revise policing legis- lation to be more consonant with Patten. Although significant reforms have occurred, Sinn Féin stands as a major critic of new police structures and refuses to sit on plan- ning and oversight boards until all of the reforms recommended by Patten are fully implemented (Sinn Féin, 2003). This party explicitly challenges the society to pro- mote restorative justice, to achieve ideals of human rights and equity in policing. Its stance is explicitly antistatist, antiracist, and anticapitalist. In spite of Sinn Féin’s refusal to participate in community policing until reforms are complete and in spite of the reticence of some community members to proceed with reform (36% of Protestants recently polled considered it unacceptable to complete the process of police reform, 2% of Catholics so agreed [personal communication, Republican Mailing List, 2003]), the transformation of the police service is under way. Innovative and visionary community steering and accountability mechanisms have been implemented. The Mission Statement and Core Values of the Northern Ireland Policing Board (NIPB), the independent body charged with directing and monitoring policing, identifies core community policing characteristics. To secure in partnership with the chief constable, the police service and staff associations, for all of the people living in Northern Ireland an effective, efficient and impartial police service that will secure the confidence of the whole community and work in partnership with this community to contribute to the development of a safe, more harmonious and peaceful society. On behalf of the community, the Board will set high standards for the behavior and performance of the police service and hold the police to account for achievement of these standards. In addition, it will set high standards for itself in its deal- ings with the Police Service and the general public. (NIPB, 2002, p. 7) The NIPB is an appointed body, ostensibly independent of the police service and the government. It consists of 19 members, a chair and vice-chair appointed by the sec- retary of state, 10 members of the Northern Ireland Assembly appointed through the d’Hondt process that strengthens minority representation, and 9 independent mem- bers appointed by the secretary of state through open competition. It identifies its core values as “accessibility, accountability, responsiveness, objectivity and independence, impartiality, integrity, partnership and mutual respect” (NIPB, 2002, p. 7). Perhaps what is most significant about the attempted transformation of the police is the scope and comprehensiveness of change, its visionary qualities, and its reform of a force that had faced international disapprobation. The board’s objectives include the promotion of community policing and human rights principles. The board directs and holds the police force accountable for achieving objectives set by the board and by new district police boards. These local boards, district police partnerships (DPP), are community-based boards that direct and evaluate the PSNI in local neighborhoods or communities. The reform of the police force includes the implementation of an inde- pendent office of police ombudsman, establishment of an affirmative action plan that requires 50% of hiring be from the Catholic community, adherence to a comprehen- sive code of ethics, and institution of a training and education center. In many respects, the process of reforming the police service in Northern Ireland holds promise to achieve goals that are restorative. There is a clearly articulated goal to restore community, to build peace, to protect human rights, and to ensure the security of all persons in the community. There is overt recognition that there is a legacy of exclusion, marginalization, violence, and pain that must be overcome. There is an attempt to address the fears of abuse of power and protect citizens from police miscon- duct. There is a broad-based system of democratic boards, which are local and repre- sentative of and responsible to community and direct and evaluate local policing efforts. There is transparency in the effort, with, for instance, substantial biographical and financial information about members of the board available publicly (NIPB, 2005). Importantly, the approach is comprehensive and establishes accountability mechanisms that are independent of the state. Opportunities and Challenges Northern Ireland presents a provocative case study in the establishment of commu- nity policing as a vehicle to build peace and ensure safety. In many respects, it presents goals, values, and practices that are consistent with restorative justice ideals. However, numerous contradictions to these ideals are possible in the policy implementation. Additionally, the developing police policies raise questions about the nature of restor- ative justice itself, especially in relation to the role of the state. The republican party, Sinn Féin, has leveled the most powerful criticism of reform efforts. This party represents the interests of persons most marginalized in the society, predominantly Catholic and lower socioeconomic class persons who seek to unite with the Republic of Ireland. Sinn Féin has consistently challenged police practice and new police policy. It currently will not take its position on the NIPB because of dis- agreements regarding community control and accountability for policing, recourse for wrongs, the lack of legitimacy regarding diversity on the force, and prior human rights violations by current officers (Sinn Féin, 2004). The history of this party’s acceptance of most of the new policing strategies is remarkable in that it had begun its position from the base of arguing for the total elimination of the RUC. It has maintained pres- sure on the British and Irish governments to ensure that its positions regarding polic- ing have been accommodated resulting in continual Parliamentary modifications of the new police policy. Sinn Féin also places policing at the heart of the peace process, 322 Criminal Justice Policy Review arguing vehemently that community members need and want police. Currently, some persons in the republican community, as well as some unionist communities, reject state policing (McGarry & O’Leary, 1999; Pickering, 2002) and employ local paramilitaries or former paramilitaries (such as the IRA and the UDA) to ensure safety, settle disputes, solve crime, recover stolen merchandise, and punish offenders. There are neighborhood justice centers that have emerged to provide community- based mediation and conflict management outside of the paramilitary structure (Hall, 2000). Sinn Féin and republican community organizations demand the right of citizens to have a legitimate police service to protect the elderly, to address violent youth, and to prevent crime. They also insist on the creation of a fair judiciary (Falls Community Council, 1998; Sinn Féin, 2003). This stance poses both a challenge and an opportu- nity for criminal justice reform in Northern Ireland. If the party is able to leverage these changes in new legislation, it will promote progressive reform, fully implement the policing oversight bodies as it takes its seats on the NIPB and DPP, and propel the peace-building process through the establishment of new legitimized community institutions. If it is unable to gain these reforms, a significant proportion of the popula- tion will continue to see the police and justice systems as oppressive arms of the state. The result may be continued lack of legitimacy, reliance on paramilitary organiza- tions, and lack of access to state-based welfare and security. Northern Ireland’s policing project, if fully implemented, is venturesome and inno- vative in its embrace of democratic design and accountability mechanisms. It may in practice provide a model for the transformation of policing in the early 21st century not only for divided or conflict-ridden societies but stable, pluralistic societies as well. It may fit the ideals of restorative justice, although not fully, but incrementally and transitionally in the movement to a more humane criminal justice system and society. But new policing policy in Northern Ireland poses enormous challenges in practice. Although the legacy of violence in a divided society propelled the creation of such comprehensive and radical change, it simultaneously presents extraordinary difficul- ties in implementation. These challenges are similar to those faced in the implementa- tion of other community policing proposals, but the stakes may be higher. The human rights, crime prevention, and equality components of Northern Ire- land’s policy are highly monitored and visible elements of the policy change. There are numerous bodies internal to the United Kingdom and Northern Ireland (Human Rights Commission, Secretary of Northern Ireland, Committee on Justice, Office of the Oversight Commissioner, and others), external (Human Rights Watch, Amnesty International, The Lawyers’ Committee on Northern Ireland), and supranational (European Commission on Human Rights) responsible for oversight or monitoring. Certainly, however, the legacy of oppression and the existence of racism and sectarian- ism in society are not eliminated through policy. Websdale’s (2001) account of the use of community policing as a new form of apartheid dramatically demonstrates the potential for abuse of human rights in community policing practice. A major question about community policing’s restorative potential is its relation to the state and whether the state’s interests (and perhaps the interests of capital or even Martin / Restoring Justice Through Community Policing 323 global capital) will always supercede the interests of community. This is a fundamen- tal question for the future of restorative justice as well. Much of the debate regarding the future of civil society centers on whether community-based, grassroots, or local governance and interests are a countervailing force to the interests of the state, global capital, and their interlocking interests (Habermas, 1996; Munck, 2002). In an ideal form, community policing would represent the interests of a local com- munity. Marenin (1982) compellingly argues that it is possible for police to be delinked from the state. Although policing emerged simultaneously with the develop- ment of the state and markets, it does not necessarily serve the interests of property only. Bayley (1994) contends that although police up until the 19th century protected the interests of government by suppressing unrest and controlling the population, 20th-century policing evolved to respond to the needs of the public and is democrati- cally responsible to the populace. It is, he argues, a “renegotiation of the social con- tract between the police and society” (p. 120). Johnstone (2002) contends that restor- ative justice practices can in fact build community. Major questions in this regard must be raised. Can police be fully delinked from the state if the state does not punish, but must policing be linked to the state if there is punishment to ensure fairness and legiti- macy? Can there be a partial delinking that can adequately serve the needs of commu- nity and not the state or global elites? Might suprastate entities play a much more important role than the state in the 21st century, the “hollowing out of the state” (Rhodes, 1996, p. 661), further facilitating the delinking of police with state and pro- viding opportunity for more local control? Bass (2000) demonstrates that community organizations do have the capacity to shape police organizations. Loader and Walker (2001) reconceptualize the role of the police in the 21st century as a vehicle to trans- form communities, from traditional interest and territorial communities to sustaining affiliated or attached communities. The public interest is multidimensional and policing reflects this. Loader (2000) identifies the challenges to democratic accountability of policing that is increasingly “fragmented, diverse and networked” (p. 324). If community policing is to be truly reflective of and responsible to the community, however, might local interests be as easily, or more easily, shaped by elites, the interests of capital, or even sectarian agen- das than if responsible to the state? The rhetoric of community policing includes atten- tion to the interests of local business, in fact partnering with business. At the local level, is there compatibility between business and other community interests, or might the tension between the interests of various elements in the community result in domi- nation by some interests, withdrawal by others? How will the role of elites and class shape community policing? How can interest in directing and monitoring police be maintained to ensure community control? The local and global dilemma will shape the immediate future of policing with both opportunities for democratic, community- based policing and national and global impediments to serving local needs promoting instead the interests of state and global capitalism (Anderson et al., 1995; Crawford, 1997). Might true community control of police, incorporating informal means of social control and targeted efforts to prevent crime result in the loss of procedural safeguards for offenders, net widening, or replication of current inequities? 324 Criminal Justice Policy Review Northern Ireland at this very early stage of implementation suggests some of these challenges of implementation. Although the NIPB is an independent body directing the actions of the PSNI, its chairs and its funding derive from the United Kingdom. Although some members are elected members of the Northern Ireland Assembly, the Northern Ireland secretary selects others. At present, the British government has sus- pended the democratic local assembly. The Northern Ireland secretary gives goals to the policing board, the policing board establishes goals, and then requests local goals from the DPP. These boards have just begun, but already questions have been raised about whose priorities are most important: How will conflicts between community goals and state-level goals be addressed, and how will communities ensure continuity of police personnel to ensure that the knowledge of and relationship with communities so necessary for community policing can develop (McGarry & O’Leary, 1999; NIPB, 2002). The role of class and elites in society is far more recognized in Europe than the United States, and this may play a positive role in ensuring that police serve the inter- ests of the entire community, especially the poor and marginalized. As in many societ- ies, the police are drawn from the ranks of the blue collar, and in Europe, police are more attuned to this and even aware that their interests are more alike those policed than the interests of other members of the justice system, such as lawyers and judges. The members of the PSNI who had been members of the RUC may have a mixed class consciousness because of their high salaries, their exclusion from community for security, and other reasons. Marenin (1982) contends that the drive toward the professionalization of the police was to alienate them from their working-class roots, their class identification, which would make them unreliable protectors of elites. The influx of half of new recruits from the Catholic community may connect the new ser- vice to the working class, but the process of change may be too slow. Ironic is the role that police labor unions play in restraining progress toward community policing, with the Police Federation of Northern Ireland (1999) rejecting affirmative action plans and community accountability mechanisms. Similarly, the Cincinnati police union voted unanimously to cancel a creative community-policing plan that attempted to redress the wrongs committed by police for racial profiling and violation of civil rights (Kay, 2003). Community policing may have some potential to counter these tendencies through training, integration, accountability mechanisms, organizational structure, and ethos. In practice, the values of community policing pose continual challenges for police organizations, oversight agencies, and the community. Ideals of human rights, equal- ity, transparency, accountability, power-sharing, respect for diversity, and peace are lofty challenges for any organization to achieve, even those whose purpose is not crime prevention or human safety. Northern Ireland’s experience as a society and its policing history is rife with very serious transgressions in these regards. Can the his- tory be overcome and a new organizational culture be established? Will other aspects of the justice system be similarly willing to change? How will the newest recruits who are vetted in human rights standards and trained in cultural understanding relate to members of the PSNI who are not vetted or trained, and how will this affect the organi- Martin / Restoring Justice Through Community Policing 325 zational culture? Thatcher (2001) demonstrates that values conflicts between police and community organizations present either possible failures of these ideals or new opportunities for organizational change. Community policing practice poses serious challenges for individual police offi- cers and their organizations. The skills and orientation of the police pose difficulties for the achievement of community policing ideals. Police are asked to engage in dual roles—those of social welfare and social control. Although most of traditional polic- ing activities do not deal directly with crime but relate more to serving a variety of human needs and emergencies, the police have generally viewed their expertise and focused their skills in areas such as investigation, crime control, and apprehension of offenders. Community policing requires an orientation to understanding and valuing community needs. Empathy, community organization, problem solving, mediation, empowerment practice, and other attitudes and skills are necessary. Some police com- plain vehemently that they are not social workers, and neither their training nor values support this new role. In Northern Ireland and in many communities in which community policing is adopted, departments expect most of the force to engage in community policing. There often becomes a fracturing of the organization into community policing and real policing. Although a new training academy is a central feature of the new force, police training does not attend to the more humanistic and social welfare skills and attitudes. There is often goal displacement in such organizations away for community policing toward prior models (Goetz & Mitchell, 2003) and emerging police practice (terror- ism, cross-border issues, security, intelligence). In fact, some of the skills necessary for investigation, such as suspiciousness following the unlikely lead or the unusual event, may counter the necessary orientation to collaboration. Often, internal values within the police organization may favor the work of investigation, international polic- ing, counterterrorism, organized crime, or undercover work. Officers who engage suc- cessfully in community policing may not receive the rewards to encourage their work. Conversely, community policing may be in competition with other state and com- munity goals that may be more efficiently served and met without the use of social control. Policing is an expensive social service. Resources that assist the community in meeting its needs may be better distributed to social work, education, or health ser- vices. In Northern Ireland, there is not yet the devolution of police services to these other arenas, although an optional tax may be levied locally to allow contracting for complimentary services (Ryder, 2000). Community policing purports to resolve problems and prevent crime and expects that crime will more likely be solved by intimate knowledge of the community. There are many conundrums embedded in these beliefs. Although members of a community may be willing to work with police to ensure that problems are resolved and even that offenders are apprehended and brought to justice, as arrests increase in communities, may communities become destabilized and residents’ attachments to communities weaken? In Northern Ireland, a major goal of the NIPB is that there will be a decrease in crime. New policing policy promotes engaging communities that have been alien- ated from the police. An increase in crime reporting from these communities would 326 Criminal Justice Policy Review indicate acceptance of the legitimate role of the PSNI in these communities but, ironi- cally, would be contradictory to the police objectives. Conclusion In the most favorable analysis, community policing may be the way forward for communities in conflict to seek justice in the formal justice system. In fact, commu- nity policing may be more likely to be sustained and practiced in societies that are emerging from conflict. There may be a clear vision of, and a demand for, a sustained peace; dynamism generated when police reform is part of a restructuring of major social institutions; and determination elicited from the poignant recognition of the injustices produced when policing is unavailable to all. There is enormous potential for local democratic control and accountability of the state social control mechanism, probably more than in any other area of the justice system. Policing provides for the fundamental needs of safety and security and can do so with respect for human rights, attention to the equitable distribution of resources, and recognition of vulnerability. Northern Ireland’s dramatic policy plan demonstrates that the integration of princi- pled vision, establishment of local democratic structures, and major restructuring of the organization, culture, and ethos of policing can gain the support of broad segments of the population and represent a new social institution that can bridge sectarian history in a divided society. The Northern Ireland community policing plan may be the most important and comprehensive national community policing endeavor of the new century. It may begin the process of this century’s momentous shift in the location of the authority over police (Bayley, 1994) and may transform this leading edge of the criminal justice system. But there are many possible contingencies that can scuttle the plan, for there are no easy answers to the conundrums now evident or likely to surface in implementation. The major strength and essential element is accountability to community—real, not advisory. Legitimacy must arise from procedural justice: There must be mechanisms to ensure that human rights are central and minorities’ voices are heard regarding control and fair treat- ment. Comprehensiveness too is important. Piecemeal reforms, the veneer of community- style policing cannot fundamentally change organizational structure and ethos sufficiently to achieve the goals of community policing. The power of supranational entities, whether nongovernment organizations or quasi-state bodies, may also ensure that communi- ties maintain control and that standards of justice are enforced. Finally, the willingness of communities to accept or even forgive the pain of past community relations may be central to their vision and motivation to transform policing. In the process of policy development and in outcome, community policing can become fully compatible with restorative ideals. Martin / Restoring Justice Through Community Policing 327 References Anderson, M., den Boer, M., Cullen, P., Gilmore, W., Raab, C., & Walker, N. (1995).Policing the European Union. London: Oxford University Press. Bass, S. (2000). Negotiating change: Community organizations and the politics of policing. Urban Affairs Review, 36(2), 148-177. Bayley, D. H. (1994). Police for the future. London: Oxford University Press. Bergalli, R., & Sumner, C. (1997). Social control and political order: European perspectives at the end of the century. London: Sage. Berger, R. R. (2003). The “worst of both worlds”: School security and the disappearing fourth amendment rights of students. Criminal Justice Review, 28, 336-354. Brewer, J. D. (1991). Policing in divided societies: Theorising a type of policing. Policing and Society, 1, 179-191. Brewer, J. D., Guelke, A., Hume, I., Moxon-Browne, E., & Wilford, R. (1996).The police, public order and the state (2nd ed.). New York: St. Martin’s. Crawford, A. (1997). The local governance of crime: Appeals to community and partnership. Oxford, UK: Oxford University Press. Ellison, G., & Smyth, J. (1996). Bad apples or rotten barrel? Policing in Northern Ireland. In O. Marenin (Ed.), Policing change, changing police: International perspectives(pp. 171-197). New York: Garland. Ellison, G., & Smyth, J. (2000). The crowned harp: Policing Northern Ireland. London: Pluto. Falls Community Council. (1998). A new beginning: A new police service. Belfast, Northern Ireland: Inde- pendent Commission on Policing. Goetz, B., & Mitchell, R. (2003). Community-building and reintegrative approaches to community polic- ing: The case of drug control. Social Justice, 30, 222-247. Habermas, J. (1996). Between facts and norms (W. Rehg, Trans.), Cambridge, MA: MIT Press. Hall, M. (Ed.). (2000). Restoring relationships: A community exploration of anti-social behavior, punish- ment beatings and restorative justice. (Island Pamphlet No. 29). Newtownabbey, Northern Ireland: Island. Harcourt, B. E. (2001). Illusion of order: The false promise of broken windows policing. Cambridge, MA: Harvard University Press. Herbert, S. (2001). Policing the contemporary city: Fixing broken windows or shoring up neo-liberalism? Theoretical Criminology, 5, 445-466. Hickman, M. J., & Reaves, B. A. (2001). Community policing in local police departments (Bureau of Justice Statistics Report NCJ-184794). Washington, DC: National Institute of Justice. Independent Commission on Policing for Northern Ireland. (1999). A new beginning: Policing in Northern Ireland. Belfast, Northern Ireland: The Northern Ireland Office. Johnstone, G. (2002). Restorative justice: Ideas, values, debates. Portland, OR: Willan. Kay, J. (2003). Cincinnati police union wants out of deal aimed at better ties with black community. Associ- ated Press Report. Retrieved July 27, 2004, from LexisNexis database. Kelling, G. L., & Coles, C. M. (1996). Fixing broken windows. New York: Touchstone. Loader, I. (2000). Plural policing and democratic governance. Social & Legal Studies, 9, 323-345. Loader, I., & Walker, N. (2001). Policing as a public good. Theoretical Criminology, 5(1), 9-35. Marenin, O. (1982). Parking tickets and class repression: The concept of policing in critical theories of crim- inal justice. Contemporary Crises, 6, 241-266. Martin, M. E. (1999). From criminal justice to transformative justice: The challenges of social control for battered women. Contemporary Justice Review, 2, 415-436. McGarry, J., & O’Leary, B. (1999). Policing Northern Ireland: Proposals for a new start. Belfast, Northern Ireland: Blackstaff. 328 Criminal Justice Policy Review Morris, R. (1992, Spring). Restorative justice: Path to the future. Odyssey: Creative Alternatives in Criminal Justice, pp. 90-95. Mulcahy, A. (1998). The dynamics of the police legitimation process. Dissertation Abstracts International, 59(06A), 2195. (UMI No. 9838244) Munck, R. (2002). Global civil society: Myths and prospects. Voluntas: International Journal of Voluntary and Nonprofit Organizations, 13, 349-361. Northern Ireland Policing Board. (2002). Northern Ireland Policing Board corporate plan: 2002-2005. Bel- fast, Northern Ireland: Author. Northern Ireland Policing Board. (2005). Our people: Members of the Northern Ireland Policing Board. Retrieved December 8, 2005, from http://www.nipolicingboard.org.uk/our%20people/our_people.htm Pickering, S. (2002). Women, policing and resistance in Northern Ireland. Belfast, Northern Ireland: Beyond the Pale. Police Authority of Northern Ireland. (2000). A policing plan for Northern Ireland 2000-2001. Belfast, Northern Ireland: Author. Police Federation of Northern Ireland. (1999). The federation’s final response to the Patten Report. Belfast, Northern Ireland: Author. Retrieved December 8, 2005, from http://www.policefed-ni.org.uk/patten/ section12.shtml Pranis, K. (1998). Guide for implementing the balanced and restorative justice model (NCJ No. 167887). Washington, DC: National Institute of Justice Office of Juvenile Justice and Delinquency Prevention. Quinney, R. (2000, February). Peacemaking criminology. Paper presented at the conference Peace and Policing in a Divided Society, San Diego, CA. Rhodes, R. A. W. (1996). The new governance: Governing without government. Political Studies, 44(3), 652-667. Ryder, C. (2000). The RUC: A force under fire. London: Arrow Books. Sinn Féin. (2003). Transfer of policing and justice powers. From Irish Republican News and Information, 26 January 2003. Retrieved December 30, 2005, from http://sinnfein.org/documents Sinn Féin. (2004, March 15). The truth about policing in the north of Ireland. The New York Times, p. A25. Sullivan, D., & Tifft, L. (2001). Restorative justice: Healing the foundations of our everyday life. Monsey, NY: Willow Tree. Thatcher, D. (2001). Equity and community policing: A new view of community partnerships.Criminal Jus- tice Ethics, 20(1), 3-18. Tyler, T. R., & Wakslak, C. J. (2004). Profiling and police legitimacy: Procedural justice, attributions of motive, and acceptance of police authority. Criminology, 42, 253-281. United Kingdom and the Republic of Ireland. (1998). The agreement: Agreement reached in the multi-party negotiations. Belfast, Northern Ireland: Author. United Nations. (2003). Of conflict, and post-conflict, situations. UN Chronicle, 40(1), 16-18. Websdale, N. (2001). Policing the poor: From slave plantation to public housing. Boston: Northeastern Uni- versity Press. Williams, K. (2003). The demand for order and the birth of modern policing. Monthly Review, 55(7), 16-23. Margaret E. Martin, MSW, PhD, is a professor of social work at Eastern Connecticut State University. Her research examines social policy and organizational change in justice systems with a focus on social justice and human rights. Martin / Restoring Justice Through Community Policing 329 
work_zxfvq6xiofhkzkqrhzsldie4em	----	Untitled Kent Academic Repository Full text document (pdf) Copyright & reuse Content in the Kent Academic Repository is made available for research purposes. Unless otherwise stated all content is protected by copyright and in the absence of an open licence (eg Creative Commons), permissions for further reuse of content should be sought from the publisher, author or other copyright holder. Versions of research The version in the Kent Academic Repository may differ from the final published version. Users are advised to check http://kar.kent.ac.uk for the status of the paper. Users should always cite the published version of record. Enquiries For any further enquiries regarding the licence status of this document, please contact: researchsupport@kent.ac.uk If you believe this document infringes copyright then please contact the KAR admin team with the take-down information provided at http://kar.kent.ac.uk/contact.html Citation for published version Ward, Tony and Gannon, Theresa A. and Fortune, Clare-Ann (2015) Restorative Justice-Informed Moral Acquaintance: Resolving the Dual Role Problem in Correctional and Forensic Practice. Criminal Justice and Behavior, 42 (1). pp. 45-57. ISSN 0093-8548. DOI https://doi.org/10.1177/0093854814550026 Link to record in KAR https://kar.kent.ac.uk/53580/ Document Version UNSPECIFIED   1  6 Restorative Justice Informed Moral Acquaintance: Resolving the Dual Role Problem in Correctional and Forensic Practice Tony Ward Victoria University of Wellington Theresa A. Gannon University of Kent Clare-Ann Fortune Victoria University of Wellington Please cite as Ward, T. Gannon, T. A., & Fortune, C-A. (2015). Restorative justice informed moral acquaintance: Resolving the dual role problem in correctional and forensic practice. Criminal Justice and Behavior, 42, 45-57. Available from: http://cjb.sagepub.com   2  Abstract The issue of dual roles within forensic and correctional fields has typically been conceptualized as dissonance—experienced by practitioners— when attempting to adhere to the conflicting ethical requirements associated with client well-being and community protection. In this paper, we argue that the dual role problem should be conceptualized more broadly; to incorporate the relationship between the offender and their victim. We also propose that Restorative Justice (RJ) is able to provide a preliminary ethical framework to deal with this common ethical oversight. Furthermore, we unite the RJ framework with that of Ward’s (2013) moral acquaintance model to provide a more powerful approach—RJ informed moral acquaintance—aimed at addressing the ethical challenges faced by practitioners within forensic and correctional roles. Key words: Restorative Justice, Ethics, Moral Repair, Moral Acquaintance.   3  INTRODUCTION Practitioners1 working in the forensic and correctional fields face profound ethical challenges revolving around their unique constellation of professional roles (Haag, 2006;Ward, 2013; Weinberger & Sreenivasan, 1994). On the one hand, by virtue of key governing ethical codes, practitioners are obligated to seek the best for their clients. The concept of what is best is usually cashed out in terms of enhancing offenders’ levels of well-being and meeting their core interests. On the other hand, however, there is a strong mandate to protect the interests of the community by ensuring that offenders’ risk for further reoffending is reduced (Andrews & Bonta, 2010). The role conflict confronting practitioners is frequently referred to as the dual role problem. Failure to grasp the degree to which role conflicts and their contrasting suite of duties and practices ethically blunt a practitioner’s responsiveness can damage the offender client and result in loss of clinician integrity. Specific examples of when dual relationship difficulties can emerge include conflict between a duty of truthfulness to the court concerning a defendant’s mental state and/or personality versus what is truly in his or her best interests; being asked to evaluate a sex offender for possible civil detention; when sentenced individuals are ordered to attend and complete treatment against their will; and when practitioners are asked to participate in security related tasks such as assisting in cell searches while employed as psychologists or psychiatrists (Haag, 2006; Ward, 2013). Robertson and Walter (2008) have usefully defined the dual role problem as:                                                          1 By practitioner we refer to individuals trained to practice with offenders in correctional and forensic settings (e.g., psychiatrists, forensic, clinical, and counseling psychologists).    4  ...a quandary in which a psychiatrist [or other practitioner] faces the dilemma of conflicting expectations or responsibilities, between the therapeutic relationship on the one hand and the interests of third parties on the other (p. 228–229). To make matters worse, ethical pressure can also occur between professional codes of practice, individuals’ personal moral codes, and universal values such as human rights (Arrigo, 2013; Ward, 2013). The resulting moral distress experienced by correctional practitioners can be overpowering and threaten to fracture their sense of personal integrity and professional identity (see Gannon & Ward, 2014). Fracture may occur because the boundaries of permissible practice are in part defined by conceptions of professional roles, and if roles vary then the boundaries (i.e., the edge of permissible practice; Guthiel & Brodsky, 2008) may be drawn in different places and at times be mutually inconsistent. The resulting cognitive dissonance is hard to resolve and so practitioners either retreat into one of the roles and its respective code (see below) or else oscillate between different roles in an erratic and ethically problematic way (Ward, 2013). In our view, there are three particularly significant points to be made about the dual role problem. First, it has its origins in value pluralism, which specifies that there are a number of distinct values within a society or community, none of which can be established as normatively superior to the others (Engelhardt, 1986). If not openly and reflectively addressed value pluralism can undermine professional ethical codes and by doing so, trap practitioners into an insular conception of the nature of practice with offenders, and the broader community (Arrigo, 2013). Second, despite   5  appearances, the dual role problem is actually tripartite in nature in so far as there are three relevant stake holders with their corresponding relationships: (a) the practitioner and the offender, (b) the practitioner and the community/criminal justice system (including the victim), and (c) the offender, and the criminal justice system, community, and victim(s). The dual role problem, as it is often conceptualized, only appears to deal with the first two sets of relationships (Greenberg & Shuman, 1997; Ward, 2013). In our view this is a mistake which impedes progress towards a universally accepted resolution to the dual role dilemma. Third, there is no underlying ethical theory, framework, or set of principles in correctional and forensic practice that can be utilized to address the dual role problem or any of the other significant ethical issues evident in the field. While theorists such as Ward (2013) have developed procedural frameworks that incorporate varying ethical perspectives and values in the form of the moral acquaintance model, this framework is unable to adequately capture the full complexity of ethical issues evident in the field. In this paper we attempt to address the major challenges associated with the dual role problem in forensic and correctional practice outlined above through (1) using the core principles and assumptions of Restorative Justice (RJ) and (2) using RJ principles to further inform Ward’s (2013) moral acquaintance model and produce an ethical framework that is able to more convincingly address the key problems faced by practitioners within the correctional and forensic fields. RJ sets out the necessary conditions for an effective response to crime based on the fundamental premise that repair of community relationships is paramount. RJ’s overall aim is to repair the damage caused by crime by asking offenders to recognize and publically   6  acknowledge the harm they have done, demonstrate remorse, and display a willingness to make reparation and undergo sanctions if appropriate (Johnstone, 2014). Further, RJ seeks to heal the victim and to restore the offender to full social standing. It assumes a relational ethic in which all human beings are equal moral stakeholders and where individuals have a responsibility to sustain and repair relationships damaged by crime. RJ is a grassroots, bottom up movement comprised of a network of practices and initiatives, and is loosely held together by a patchwork of core ideas and principles rather than any overarching coherent theory. Essentially, RJ is pragmatic in nature and focuses on concrete initiatives such as sentencing circles, offender-victim mediation or family conferences. Nevertheless, RJ principles have the potential to address pressing ethical dilemmas. In this paper we use the core underlying ideas of RJ to provide an overarching ethical framework to resolve the dual role problem. It should be noted, however, that RJ has been justifiably criticized for some of its theoretical and practice claims concerning interventions such family conferences, victim-offender mediation, offender rehabilitation, and sentencing conferences (Arrigo, 1998, 2004; Ward & Langlands, 2009). First we examine recent attempts to resolve the dual role problem and note their strengths and shortcomings. Second, we briefly outline the central assumptions and principles of RJ and argue for its general utility as an ethical framework for forensic and correctional practitioners. Third, we integrate the RJ conception developed earlier with Ward’s (2013) recent moral acquaintance model (described later in the paper) of ethical reasoning in the context of value pluralism and evaluate the degree to which it can   7  satisfactorily address the dual role problem. Finally, we conclude with implications for future practice. APPROACHES TO THE DUAL ROLE PROBLEM Ethical solutions to the dual role problem evident in the correctional and forensic literatures essentially follow the relationship trajectories described above: (a) the practitioners’ relationship with the offender; (b) the practitioner’s relationship to the community and criminal justice system (including the victim); and to a lesser extent, (c) the offender’s relationship to the community and criminal justice system (including victims). There are four key approaches to the dual relationship problem: single ethical code approaches that focus on either (1) mental health or (2) the criminal justice system; (3) hybrid models that attempt to combine single ethical codes; and (4) procedural models that adopt a practitioner interactive model of ethical reasoning. SINGLE ETHICAL CODE: MENTAL HEALTH In his recent paper Ward (2013) argues that when the primary professional relationship is between a practitioner and an offender it is typically structured by a health oriented code of ethics. More specifically, he states: ..the default position concerning the dual relationship problem is that traditional professional codes of practitioners (whether psychiatrists, psychologists, social workers, etc.) can satisfactorily resolve any ethical conflicts encountered when working in forensic or correctional contexts.   8  (p. 95) It is simply assumed that the ethical principles and standards contained in professional codes can provide adequate ethical guidance for all assessment and intervention tasks likely to be undertaken. It is taken for granted that conflicts will occur between principles within the code used (e.g., between prioritization of client need and minimization of harm to others). This approach centers on how best to meet a client’s core interest while minimizing harm to his or herself and others. While concern for the well-being of members of the community is certainly explicitly considered, it functions more as a side constraint rather than a central focus. Thus, using this approach, the principles of beneficence (i.e., promoting the client’s good), nonmaleficence, (i.e., doing no harm), autonomy (i.e., respecting clients’ personal wishes and priorities), and justice (ensuring clients receive their fair share of programme resources and are not unjustifiably discriminated against), if moderated by considerations of risk and general balance, can help practitioners to undertake risk assessments or treatment in ways that are ethically justified. However, there are three major problems with guiding forensic and correctional practice with reference to single mental health professional codes. First, in practice, a primary aim within correctional and forensic settings is to assist offenders to reduce or eliminate their predispositions to harm others. It is not a peripheral aspect of work with offenders at all (Appelbaum, 1997; Gannon & Ward, 2014). Second, this approach fails to fully acknowledge the moral dimensions to rehabilitation practice. For example, offenders undergo punishment alongside attending programmes. In fact,   9  theorists such as Glaser have argued that sex offender treatment is ethically more defensible if reconceptualized as punishment (Glaser, 2003). Third, the single mental health professional code ‘solves’ the dual role problem by neglecting practitioners’ relationships with the criminal justice system and community, as well as offenders’ relationships with victims. SINGLE ETHICAL CODE: CRIMINAL JUSTICE According to this perspective, a specialized criminal justice ethical code should guide assessment and treatment of offenders. The exact nature of the code will depend on the particular task and organization in question. For example, following a conceptual appraisal of contemporary forensic practice - more specifically, the provision of expert psychiatric advice to the courts - Paul Appelbaum (1997) formulated two forensic ethical principles for forensic psychiatrists operating as expert witnesses that he argued reflect actual practice: (1) truth telling (i.e., striving for objectivity and presenting evidence based on reliable and valid methods and theories); and (2) respect for persons (i.e., transparency with the defendant through conceding that the fundamental client is the court). A strength of the criminal justice, single code model is that it takes the requirements of the criminal justice system and the concerns of the community seriously and thus bases its ethical code on issues of community protection and risk management. However, its major weakness is that it simply ignores the practitioner-offender role of the tripartite set of relationships implicated in forensic and correctional work. Furthermore, as Ward (2013) states, adopting such a code, “runs the risk of alienating psychiatrists (and other forensic and correctional practitioners) from their traditional roots as healers” (p. 96).   10  HYBRID ETHICAL MODELS The above brief description and evaluation of the two major approaches to addressing the ethical challenges of forensic and correctional practice illustrates that each fails to do justice to the complexities of practical work in correctional and forensic settings. In response to this lack of scope, some theorists have developed hybrid ethical models to address the dual role problem, essentially combining the values underpinning each role (i.e., client well-being and need as well as community protection). A promising example of a hybrid ethical approach is Philip Candilis’s (2009) robust professionalism framework. According to Candilis, forensic and correctional practitioners need to carefully consider the viewpoints of all key stakeholders associated with a particular issue and any assessment or treatment process should result in outcomes that reflect these varying interests in a balanced way. More specifically he stated that robust professionalism, “recognized the formative influence of personal values, the salience of personal identity in one's work, and the connection of personal and professional identities” (p. 431). A unique strength of the Candilis model is the way all three sets of relationships are identified as important and worthy of explicit consideration. Further, attention to the personal narratives and life histories of the key stakeholders promises to avoid simplistic stereotyping and the resulting dismissal of individuals’ legitimate concerns. However, despite these strengths Candilis does not provide guidance on how to actually incorporate the different perspectives in the assessment and treatment process. As Ward (2013) states:   11  Most pressing is a failure to outline a procedure for implementing the model in practice situations. While the concept of robust professionalism with its call to integrity and attention to personal narratives is a necessary element of ethical assessment and treatment, it is not sufficient (p. 97). A RELATIONAL APPROACH: THE MORAL ACQUAINTENCE MODEL Ward (2013) has recently proposed a procedural/relational model of ethical reasoning to assist forensic and correctional practitioners to resolve conflicts associated with dual role problems. In his paper he stated: Ethical focus should be on relationships as well as principles and norms such as rights and duties. Furthermore, it is important to acknowledge the dignity of others, and not to act in ways that are disrespectful and that denigrate their status as fellow human beings. Finally, the details or stories of individuals' lives ought to be the focus of moral decisions rather than simply abstract principles or norms (p. 98). According to Ward, respect for the high moral status of each person involved in any particular assessment or treatment situation should underpin forensic practice. While an offender may have committed an offence that affects their moral standing in the eyes of many community members, their basic worth or moral status remains unaffected (Ward & Syverson, 2009). Ward suggests that practitioners should work on the assumption that all of the criminal justice key stakeholders are more likely to be moral acquaintances (i.e., have some overlapping values based on training, experience, and core   12  human interests) rather than moral strangers (i.e., have no or few values in common). Practitioners should look for commonalties when faced with assessment and/or treatment situations where the various stakeholders have different priorities. According to Ward’s (2013) moral acquaintance model there should be six phases involved in decision-making when confronted with a dual role problem (also see Hanson, 2009). If the model is applied systematically it is possible to ensure that the third and often neglected aspect of the dual role problem (i.e., the relationship between offender and victim) is attended to. Attendance to all six phases in conjunction with assuming a flexible relational ethical perspective should help practitioners to address dual role problems more effectively. There is no a priori guarantee of arriving at a mutually acceptable, ethically justified plan of action; it is simply more likely. The six phases, as described by Ward (2013) are to: 1. Clearly describe and identify the practice task and relevant ethical issues. To take note of factual errors and correct them. 2. List individuals who ought to be participants in the discussion of the forthcoming practice task. Typically this would involve offenders, practitioner(s) and members of the community and criminal justice system. Victims may be actively involved, and certainly, their interests ought to be explicitly taken into account, probably in the form of risk related concerns. 3. Formulate a brief narrative of all relevant individuals’ circumstances, perspectives, and contributions, and take note of any formal or informal role in the practice task in question. 4. Look for any shared ethical and well-being related norms across the   13  different participants in the case in question (i.e., search for any possible moral acquaintance). 5. Identify shared norms and apply them to the case, using techniques such as specification (i.e., applying abstract principles to concrete rules for specific situations) and balancing, and construct an agreed action plan for the case in question. It is important to make sure that the participants can justify the plan arrived at within their own set of norms. This points to the need for a minimal degree of rationality: taking into account the relevant facts, constraints, and making sure there are no obvious inconsistencies in each individual’s argument and conclusion. 6. If the proposed plan can be justified within the different ethical codes/sets of norms, implement it and evaluate its effectiveness. While Ward’s moral acquaintance model has the advantages of being able to incorporate all three key relationships evident in forensic and correctional practice it does not fully specify an underlying ethical justification or theory. The appeal to relationship ethics to justify the set of procedures is attractive but lacks detail. In addition, it fails to fully elucidate the complex normative nature of forensic and correctional practice; the fact that there are strong moral overtones associated with issues of punishment and accountability as well as prudential concerns for the interests of offenders that are clearly relevant to treatment, social reentry, and desistance. RESTORATIVE JUSTICE AS AN ETHICAL FRAMEWORK FOR CORRECTIONAL PRACTICE   14  To recap, forensic and correctional practitioners work in an ethically complex and challenging environment characterized by dual roles and multiple sets of obligations. While ethical theories formulated to deal with the problem usually take into account the practitioner-offender and practitioner-third person relationships (community, criminal justice system, victims etc.) they have all missed the third one, namely, the relationship between the offender and his or her victim(s). This is a significant omission as it fails to come to terms with the normative backdrop of work in the criminal justice system, and associated issues such as punishment, accountability, remorse, reconciliation, and moral repair. In our view, a major reason for this omission is the lack of a broad ethical framework focused on justice related concerns. Akin with other professionals (i.e., Candilis, 2009), we suggest that three sets of core relationships should be kept in mind when working with offenders. In a recent groundbreaking paper Gwen Adshead (2014) explored the ethical and practice implications of different conceptions of justice. While she made reference to RJ, she did not use it to provide an ethical framework to address issues such as the dual role problem. We believe that RJ can function as a preliminary ethical framework to alleviate problems associated with dual roles. Having said this, we are aware that RJ has been the subject of legitimate criticisms concerning its theoretical vagueness, dubious practice assumptions, and lack of clarity concerning ethical reasoning processes (Arrigo, 1998, 2004; Ward, Fox, & Garber 2014). However, in our view it can potentially provide a useful cognitive tool with which to incorporate the different types of relationships implicated in crime, and in its subsequent management. RESTORATIVE JUSTICE: BASIC PRINCIPLES AND ASSUMPTIONS   15  RJ sets out the conditions for an effective and ethical response to crime based on the view that criminal activity damages important social relationships (Walgrave, 2008; Ward et al., 2014; Zehr & Toews, 2004). RJ’s overall goal is to repair the rupture created by crime by asking offenders to recognize the harm they have done, demonstrate remorse, and display a willingness to make reparation and accept sanctions if appropriate. It seeks to heal victims and to restore offenders to full social standing once the process of moral repair has been undertaken (see below). Importantly, research shows that RJ reduces reoffending and results in high levels of both victim and offender satisfaction (Latimer, Dowden, & Muise, 2005; Shapland, Robinson, & Sorsby, 2011). RJ assumes the validity of a relational ethic in which all human beings are stakeholders and where individuals have a responsibility to sustain and repair relationships damaged by crime. It is underpinned by a number of so called restorative values such as human dignity and respect, compassion, reciprocity, honesty, humility, interconnectedness, accountability, empowerment, hope, truth, empathy and mutual understanding (Ward et al., 2014). Thus, according to Walgrave, RJ is “an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational, and social harm caused by that offence” (Walgrave, 2008, p. 21). Zehr and Mika (1998) outline three core RJ principles that exemplify the core ideas in this definition. First, criminal conduct violates both people and their relationships with one another. Such violation harms all of the key stakeholders in crime—victims, offenders, and communities— whose needs therefore ought to be actively addressed through a restorative process of some kind. Second, crime results in both obligations and liabilities   16  for offenders. The offender is obliged to take responsibility for the crime and attempt to repair the harm caused. The major intention behind holding offenders accountable is to achieve reparation rather than to simply punish them (Ward, 2013). The community is obliged to support both the victim and the offender in dealing with the effects of the crime. Third, the purpose of RJ is to facilitate community healing by repairing the harm that results from crime, more specifically, the fractures within relationships between victims, offenders, and the community that inevitably occur following offending. There is some conceptual overlap between the basic ideas and values comprising RJ and a set of ethical ideas and practices termed moral repair (Walker, 2006). Walker (2006) states that moral repair is “restoring or creating trust and hope in a shared sense of value and responsibility” (p. 28) following the experience of intentional and unjustified harm at the hands of another person or persons. According to Walker, there are a number of core tasks encompassed by moral repair including placing responsibility on the offender, acknowledging and addressing the harm suffered by the victim, asserting the authority of the norms violated by the offender and the community’s commitment to them, restoring or creating trust among the victims in the relevant norms, and reestablishing or establishing adequate moral relationships between victims, wrongdoers, and the community. The concept of moral repair is largely implicit in the central assumptions and principles of RJ. However, in our view, when this idea is made more explicit, RJ framework becomes a more powerful ethical tool. THE RESTORATIVE JUSTICE INFORMED MORAL AQUAINTANCE APPROACH AND THE DUAL RELATIONSHIP PROBLEM   17  A RJ ethical framework is able to deal with risk and offender welfare issues in a coherent way, and therefore provides a useful framework for addressing dual role problems as well as other ethical problems unique to the criminal justice system. In our view ethical problems unique to forensic and correctional practice all have their origin in the dual role problems and the tensions between the three sets of relationships outlined earlier (Ward, 2013). The three sets of relationships implicated in criminal justice matters are all covered by RJ principles and assumptions along with the concept of moral repair (see below). The moral acquaintance model previously outlined by Ward (2013) provides a set of procedures for working through conflicting aims and values created by the dual role problem, which we propose can be firmly anchored in the relational RJ framework. From a RJ viewpoint all individuals living together within a community implicitly or explicitly share norms that reflect equal dignity/status and specify duties and obligations (as well as liabilities). This status is foundational and expresses the aim of ethical systems constructed to regulate relationships between people that are designed to safeguard individuals’ core interests, and by doing so, regulate social relationships. When a crime has occurred, using the RJ informed moral acquaintance approach, the three sets of key stakeholders possess the following ethical duties and entitlements with respect to the RJ identified goal of moral repair: 1. Offender: (a) Entitlements: these include being given the ethical space to do the above. In reality this would mean being treated respectfully and having the chance to enter into a dialogue with members of the community and possibly victims. In addition, in order to ‘make good’ and engage in a process of self-reform   18  offenders are likely to require psychological and/or social assistance from the state and community, and be given the opportunity to live more fulfilling and prosocial lives (Ward & Maruna, 2007). The opportunity to take part in intervention programs is likely to lower risk; in line with victims and communities’ expectation of personal reform; and (b) Duties: to acknowledge the harm done to others and the norms violated by his or her actions. Ideally, he or she would experience feelings of guilt/remorse and seek reconciliation with the community (and possibly the victim) by accepting the sanctions or compensation decided on by the community (most probably by the court. 2. Victims: (a) Entitlements: Victims of crime are entitled to an acknowledgment by the state (including the practitioner), community, and offenders that important norms have been violated and that as a result they experienced significant unjustified harm at the hands of the offender (and possibly others via collusion or omission). Victims are also entitled to receive active support from the community and assistance in repairing any social and/or, psychological damage that has occurred as a result of the offense. If appropriate, offenders may contribute to the process of victim healing by way of restorative practices, such as conferencing, and the payment of compensation, etc. In any advent, the victim is entitled to expect that offenders will actively address their proclivities (i.e., reoffending risk and its associated characteristics) to commit offenses as part of an genuine expression of remorse and commitment to self-reform; and (b) Duties: as a member of the   19  community who is committed to shared norms victims should respect the processes associated with a RJ perspective – moral repair. Once offenders have suffered any sanctions and (if appropriate) participated in relevant RJ practices, victims should support their reentry and reintegration into the community. This does not mean that they should personally do so but that at least they will not seek to undermine this process. 3. Community stakeholders and the State - including the practitioner (a) Entitlements: The state and community can reasonably expect all members of the moral community to take responsibility for acquiring the relevant norms and the capacities to identify and act upon such norms, through the provision of responsible parenting, education, and social services. It is expected that both offenders and victims and other members of the community fulfill their duties as outlined above. Practitioners are entitled to have the ethical space to actively consider the interests of all three stakeholders in their assessment and treatment services– community, victims, and offenders. They should not be pressured to privilege risk assessment and management activities at the expense of offenders’ legitimate needs for treatment programs and psychological resources (see Gannon & Ward, 2014), or to focus exclusively on the well-being of offenders at the expense of the community and victim interests; and (b) Duties: to actively work to ensure that ethical norms are understood and supported and, if violated, take the appropriate steps to repair any moral damage. For practitioners this means that in their work with offenders they   20  should seek to assist them in the self-reform process and, by doing so, provide expert psychological services. From a broader community perspective, there is a duty to ensure that there are adequate resources in policing, legal processes, victim support, and rehabilitation for offenders including specific restorative initiative processes if appropriate. The community (and state) has the important role of social epistemic engineering—and ongoing monitoring—with respect to norm formulation, articulation, monitoring and enforcement IS THE DUAL ROLE PROBLEM ADDRESSED BY THE RJ INFORMED MORAL ACQUAINTANCE APPROACH? How do the RJ ethical framework and the moral acquaintance model outlined above respond to the dual role problem, and importantly, how do they deal with the three significant aspects of this ethical issue outlined in the introduction of this paper? First, with respect to the issue of value pluralism, the relational nature of RJ and its grounding in multiple human interests and the need for social cooperation and mutual respect, means that there are no overriding values such as punishment, offender entitlements, or safety. That is, there are no master or premier values that trump all the others in ethically rich practice contexts or in disputes. There is an explicit commitment to dialogue with regard to the norms that a community operates by and the steps that should be taken when they are violated. All members of the community, with their varying interests, are considered to be of equal intrinsic value. If someone has committed a serious wrong, holding them to account may entail the infliction of sanctions and temporary restriction on some interests such as   21  liberty. However, the offender’s journey towards release and social integration and the social and psychological capital required to make this possible, should be the focus of practitioner and state attention. Assuming the validity of ethical pluralism there is a danger that dialogue between stakeholders could merely harden positions. In the absence of epistemic virtues such as tolerance, openness to new ideas, curiosity, reflexivity, and personal integrity, individuals may speak past each other and remain captive to their own favored sets of ideas and norms (Arrigo, in press; 2013). Second, an advantage of the RJ informed moral acquaintance approach is that all of the three major stakeholders operating in the criminal justice system are explicitly factored into practice decisions. It is tripartite in nature because of its emphasis on the central task of moral repair and aim of rebuilding damaged relationships between offenders, victims, and the community. Of course, the inclusion of all three sets of relationships in practice considerations increases the complexity of any subsequent dialogue and opens up the possibility of miscommunication rather than clarity. Third, once RJ assumptions and norms have been enhanced with the concept of moral repair we believe it can provide an overarching ethical framework to guide forensic and correctional practice. In particular, it is able to provide a more secure ethical footing with which to address the dual role problem. It can do this, because by virtue of its stress on repairing damaged relationships RJ explicitly incorporates the viewpoints and interests of all the key stakeholders and their respective relationships. It also grounds practice with offenders in the concept of moral repair and thus it is clear that clinicians’ primary ethical responsibility in situations of direct conflict is to victims. However, because RJ takes the idea of offenders’ self-reform seriously and   22  also accepts their entitlement to have their voices heard and to be treated with respect, any interventions will be strength based in nature. This is partly a function of working with the moral acquaintance model which attempts to structure plans for resolving ethical disputes around common goals, in ways that all parties find acceptable and which are congruent with their core values (Ward, 2013). The emphasis of such plans will be on building internal and external capabilities and the reduction of risk as a consequence of this strategy, rather than simply targeting risk factors on their own. But what about situations where one or more of the key stakeholders is not interested in adopting a RJ informed moral acquaintance perspective, does this undermine the approach? In our view it does not have to. In such circumstances a practitioner should still inquire into what is required for moral repair to occur, using the procedural model of ethical reasoning described earlier in the paper. He or she should ask questions such as the following. What resources does the offender need in order to modify his capacity for harmful actions? What kind of social opportunities and community services should be available to increase the chances of desistance occurring? What concerns need to be alleviated in order for victims to feel safe? While ideally victims, offenders, and community members will display the same level of commitment to repairing damaged relationships and meeting their obligations, it is not strictly necessary. Some type of restorative practices can occur as long as practitioners keep the RJ ethical framework in mind when assessing and intervening with offenders. A final issue concerns the possibly pescriptive nature of the RJ informed moral acquaintance framework. While psychologists, psychiatrists, or social workers are likely to possess the necessary skills to enter into the type of   23  dialogue outlined above this may prove a difficult task for typical RJ facilitators, who are typically volunteers and may not have mental health raining. The framework described in this paper is best conceptualized as a compass or set of guidelines for dealing with dual role challenges and would need to be fleshed out in different ways depending on the qualifications and training of the practitioners concerned. CONCLUSIONS The dual role problem is woven into the fabric of forensic practice and has proven difficult to address in a way that preserves the integrity of clinicians and the legitimate expectations of the community for safety. The solutions offered in the literature range from reductionist approaches to hybrid accounts containing both mental health and criminal justice values and practices in an uneasy alliance. In our view, an enrichment of the central principles and assumptions of RJ in conjunction with the concept of moral repair, and a procedural ethical model, provides a promising way to address this important ethical challenge. Once professionals accept that all criminal justice practices (e.g., sanctioning and rehabilitation) should directly contribute to the repair of damaged social relationships and therefore ought to take into account the various interests of the primary stakeholders, it will be much easier to work in ways that effectively balance care and protection goals. From a clinical perspective, this requires that the aims of offender rehabilitation should go beyond risk management concerns and look more closely at what resources are necessary for offenders to engage productively in a self-reform process, and that relatedly, facilitate their subsequent social reintegration. The aim should be to repair damaged social relationships and restore trust in the norms that protect each persons’ interests and those of   24  others. In our interpretation, RJ principles are moral in nature and the concrete practice initiatives that arise from these ideas share their normative content. Practitioners working with a RJ informed moral acquaintance ethical framework should find it easier to reconcile their duties to offenders, victims, and the community because their overall aim is to repair damaged relationships—using moral acquaintance principles—through assessment and program activities. Individuals occupying other roles within the criminal justice system can seek to meet the same goal through their own professional actions, whether they are teachers, correctional officers, tutors, administrators, or probation officers. The conceptual unit at the forefront of practice attention is the tripartite model of core relationships, not simply offenders, community or victims. If RJ informed ideas guide correctional and forensic practice, practitioners are less likely to become trapped within the cultures of health and criminal justice. Broadening the conceptual horizon should result in more nuanced and ethically responsible practice and less danger of moral distress and loss of professional integrity. Despite the above positive features of an RJ perspective informed by the moral acquaintance model, it is important not to gloss over difficult normative issues such as values clashes at multiple levels (e.g., human rights versus professional ethical codes; personal values versus criminal justice norms), moral blindness, and difficulties translating abstract values into concrete plans. At the center of the dual role problem is value pluralism and the issue of competing and often conflicting role conceptions. Practitioners can be paralyzed by contrasting ethical duties and simply default to what they they are most familiar with. A fall back to what is familiar could reflect an   25  understandable desire to escape from the aversive nature of cognitive dissonance or simply indicate uncritical acceptance of the professional (and political) status quo. While engaging in the kind of ethical reasoning outlined in this paper is demanding there are significant personal and professional rewards as well. By virtue of the focus on moral repair there is explicit concern for the interests of all members of the community and therefore less chance of unjustifiably overlooking the entitlements and duties of victims and offenders. If our responses to crime are to be ethical they need to be subtle, graduated, inclusive, and reflective. There is no room for myopia and formulaic thinking; it will deaden our ethical senses and harden our hearts.   26  REFERENCES Adshead, G. (2014). Three faces of justice: Competing ethical paradigms in forensic psychiatry. Legal and Criminological Psychology, 19, 1–12. doi:10.1111/lcrp.12021 Andrews, D. A., & Bonta, J. L. (2010). The psychology of criminal conduct. The psychology of criminal conduct (5th edition). Cincinnati, OH: Anderson. Appelbaum, P. S. (1997). A theory of ethics for forensic psychiatry. Journal of the American Academy of Psychiatry and Law, 25, 233-247. Arrigo, B.A., and Schehr, R. C. (1998). Restoring justice for juveniles: A critical analysis of victim offender mediation. Justice Quarterly, 15, 629-666. DOI:10.1080/07418829800093931 Arrigo, B.A. (2004). Rethinking restorative and community justice: A postmodern inquiry. Contemporary Justice Review, 7, 91-100. DOI:10.1080/1028258042000212049 Arrigo, B. A. (2013). Managing risk and marginalizing identities: On the society-of-captives thesis and the harm of social dis-ease. International Journal of Offender Therapy and Comparative Criminology, 57, 672-693. DOI: 10.1177/0306624X13480634 Arrigo, B.A. (in press). Responding to crime: Psychological jurisprudence, normative philosophy, and trans-desistance theory. Criminal Justice and Behavior. Bonner, R. & Vandecreek, L. D. (2006). Ethical decision making for correction for mental health providers. Criminal Justice and Behavior, 33, 542-564. doi:10.1177/0093854806287352   27  Candilis, P. J. (2009). The revolution in forensic ethics: Narrative, compassion, and a robust professionalism. Psychiatric Clinics of North America, 32, 423–435. doi:10.1016/j.psc.2009. 02.005 Engelhardt, H. T. (1986). The foundations of bioethics. New York, NY: Oxford University Press. Gannon, T. A., & Ward, T. (2014). Where has all the psychology gone? A critical review of evidence-based psychological practice in correctional settings. Manuscript submitted for review. Glaser, B. (2003). Therapeutic jurisprudence: An ethical paradigm for therapists in sex offender treatment programs. Western Criminology Review, 4(2), 143-154. Greenberg, S. T., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28(1), 50-57. Gunthiel, T. G. & Brodsky, A. (2008). Preventing boundary violations in clinical practice. New York, NY: Guilford Press. Haag, A. M. (2006). Ethical dilemmas faced by correctional psychologists in Canada. Criminal Justice and Behavior, 33, 93-109. doi:10.1177/0093854805282319 Hanson, S. S. (2009). Moral acquaintances and moral decisions: Resolving conflicts in medical ethics. New York, NY: Springer. Johnstone, G. (2014). The teachings of restorative justice. In T. Gavrielides & V. Artinopoulou (Eds.) Reconstructing restorative justice philosophy (pp. 47-65). Farnham, UK: Ashgate Publishing.   28  Latimer, J., Dowden, C., & Muise, D. (2005). The effectiveness of restorative justice practices: a meta-analysis. The Prison Journal, 85, 127-144. doi:10.1177/0032885505276969 Robertson, M. D. & Walter, G. (2008). Many faces of the dual – role relationship in psychiatric ethics. Australian and New Zealand Journal of Psychiatry, 42, 228-235. DOI: 10.1080/00048670701827291 Shapland, J., Robinson, G., & Sorsby, A. (2011) Restorative justice in practice. London: Routledge. Walgrave, L. (2008). Restorative justice, self-interest, and responsible citizenship. Devon, UK: Willan Publishing. Walker, M. U. (2006). Moral repair: Reconstructing moral relations after wrongdoings. New York: Cambridge University Press. Ward, T. (2013). Addressing the dual relationship problem in forensic and correctional practice. Aggression and Violent Behavior, 18, 92-100. DOI: 10.1016/j.avb.2012.10.006 Ward, T., Fox, A., & Garber, M. (2014). Restorative justice, offender rehabilitation, and desistance. Restorative Justice: An International Journal, 2, 24-42. doi: 10.5235/20504721.2.1.24 Ward, T. & Langlands, R. (2009). Repairing the rupture: Restorative justice and offender rehabilitation. Aggression and Violent Behavior, 14, 205- 214. DOI: 10.1016/j.avb.2009.03.001 Ward, T., & Maruna, S. (2007). Rehabilitation: Beyond the risk assessment paradigm. London, UK: Routledge.   29  Ward, T., & Syverson, K. (2009). Human dignity and vulnerable agency : An ethical framework for forensic practice. Aggression and Violence Behavior, 14, 94-105. doi:10.1016/j.avb.2008.12.002 Weinberger, L. E., & Sreenivasan, S. (1994). Ethical and professional conflicts in correctional psychology. Professional Psychology: Research and Practice, 25, 161-167. doi:10.1037/0735-7028.25.2.161 Zehr, H. & Toews, B. (2004). Critical Issues in Restorative Justice. Cullompton, Devon, UK: Willan Publishing. 
work_zvoq6n5wrjhmfnzunibsw7sq44	----	Zenodo_D51-KC- final-201130 The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 Co-designing Citizen Social Science for Collective Action #5.1 Report on Knowledge Coalition Building Environmental Justice This document is shared under Creative Commons Attribution 4.0 International License (CC BY 4.0). Cite as: Arza, Valeria, Actis, Guillermina, Marchegiani, Pia, Velarde, Malena, Cane, Santiago, Buchsbaum, Malena & Swistun, Débora. CoActD5.1: Report on Knowledge Coalition Building. Environmental Justice. Zenodo. http://doi.org/10.5281/zenodo.4443441 DISCLAIMER: The present Project Deliverable has been submitted to the European Commission for review. The information and views set out in this report are those of the author(s) and do not necessarily reflect the official opinion of the European Union. Neither the European Union institutions and bodies nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 2 Date – 30 November 2020 Dissemination level - Public Responsible Partner - UNSAM Author(s) / credits Arza, Valeria (CENIT/UNSAM): writing original draft, conceptualisation, methodology, investigation, formal analysis, supervision Actis, Guillermina (CENIT/UNSAM): writing original draft, conceptualisation, formal analysis, investigation. Marchegiani, Pia (FARN): writing review and editing, formal analysis, investigation and supervision Velarde, Malena (CENIT/UNSAM): writing review and editing, investigation, methodology, software, data curation, formal analysis, visualisation Cane, Santiago (FARN): formal analysis and investigation Buchsbaum, Malena (CENIT/UNSAM): writing review and editing, data curation, formal analysis Swistun, Débora (FARN): Investigation Reviewers - Isabelle Bonhoure, Teresa Wintersteller, Mariam Malik, Veronika Wöhrer, Katja Mayer Document History Version Date Contributor Comments 1.0 9th November 2020 Arza, V et al (lists of authors above) First draft KC report to be commented by Consortium coordinators. 2.0 17th November 2020 Arza, V et al Second draft after incorporating comments by UB. To be read by Consortium members. 3.0 26th November Arza, V et al Final draft of the report. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 3 Table of Contents 1. Executive Summary 6 2. Introduction 7 2.1 CoAct General Concept 7 2.2 Definition of the Knowledge Coalition 8 2.3 R&I Action #3 Scope 9 3. Knowledge Coalition formation 12 3.1 Local context mapping 12 3.1.1 FARN Experience in Promoting Sanitation and Facilitating Citizen Participation in the Basin 12 3.1.2 CENIT/UNSAM Experience with Open Science and Citizen Participation in the Production of Knowledge Towards Transformation 16 3.1.4 Other Citizen Science Initiatives in the Riachuelo Basin 19 3.2 Knowledge Coalition constitution process 19 4. Knowledge Coalition in action 21 4.1 Knowledge Coalition Activities 22 4.1.1 Initiating First Contact: the Interviews 24 4.1.2 Micro-workshops, a tool to Co-produce Knowledge in Lockdown Time 25 4.1.3 Narrowing the Scope: Focussing on Strategic Topics 26 Participants 31 Methods - Dynamics 32 4.1.5 The Knowledge Coalition as a Network Approach 34 4.2 Knowledge Coalition Outcomes 37 4.2.1 Introduction 37 4.2.2 Socio-environmental Problems and Practices to address them 38 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 4 4.2.3 The Meanings and Processes of Citizen Participation in Policy Making (for Community and Policy Actors) and on Knowledge Production (for Scientific Actors) 45 4.2.4 The First Steps Towards Platform Co-design 47 5. Concluding Remarks 48 6. References 52 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 5 List of Figures Figure 1: Citizen Social Science in Action Figure 2: Network expansion in 18 months within and outside the Matanza-Riachuelo basin. Figure 3: Wordcloud of nouns for interviewees’ responses to the question on socio-environmental problems in the basin. Figure 4: Basin map and socio-environmental problems classified in six categories List of Tables Table 1: Technologies and main features of previous two versions of FARN’s QPR Table 2: Participants in different activities organised as part of CoAct R&I # 3 from April to October 2020 and digital tools used. Table 3: Selected Environmental Justice issues in Matanza-Riachuelo basin in connection to FARN´s agenda. List of Abbreviations ACUMAR: Matanza-Riachuelo Basin Authority CSS: Citizen Social Science CSOs: Civil Society Organisations GDPR: General Data Protection Regulation IC: Informed Consent PISA: Plan Integral de Saneamiento Ambiental (Sanitation Plan) QPR: Qué pasa Riachuelo? (What’s up Riachuelo) #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 6 1. Executive Summary CoAct (Co-designing Citizen Social Science for Collective Action) aims at co-designing concepts, methods and tools for Citizen Social Science around wicked global social issues. Four different research and innovation (R&I) actions organised the empirical work of CoAct and this report presents the process of building the knowledge coalition network for one of those R&I actions developed in the frame of CoAct WP5. This R&I action aims at co-designing citizen social science tools to facilitate actions contributing towards Environmental Justice in the Matanza-Riachuelo river basin. The basin covers 64 km-long and 6 million people live there, most of them in vulnerable socio-environmental situations. In particular, we aim at co-designing a digital platform to produce and share data that can contribute to mapping different socio-environmental problems as understood by a diversity of stakeholders and promote concrete actions for addressing those problems. The Knowledge Coalition works as a network of actors that intervene throughout the project’s R&I cycle, by discussing, defining, and co-designing different activities. We define it as the network of stakeholders who are interested in and informed about the R&I project goal and vision and who play an active role, either participating in or co-designing different actions. We expect the network to be continuously evolving and different types of commitment by a variety of actors is foreseen over time, depending on expertise, interests, synergies and project activities. FARN and CENIT/UNSAM identified three different types of actors that would be part of the Knowledge Coalition: researchers working in academic organisations doing research about different socio- environmental problems of the basin; public policy actors from the different jurisdictions involved in the basin (Municipal, Provincial and National) and community actors, which includes people living or working who belong to territorial organisations and also civil society organisations (CSOs) at large. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 7 We had to modify our original plan for the Knowledge Coalition creation due to the Covid-19 pandemic and associated lockdown restrictions. We organised three types of virtual engagement activities with candidates to be part of the Knowledge Coalition: interviews, micro-workshops and a platform co-design workshop. In total we reached around 30 actors (research groups, public policy organisations and territorial and civil society organisations) inside and outside the basin, who participated in some of those instances and expressed their interest in being involved in the R&I action’s future activities. We managed to identify main socio-environmental problems in different locations in the basin as understood by different stakeholders who participated in our action. We also started to delineate the main purpose of the citizen driven platform, which will initially systematise and co-produce information on three main socio-environmental themes: conservation of green areas, water quality and relocation of people living in areas with environmental risks. 2. Introduction 2.1 CoAct General Concept CoAct (Co-designing Citizen Social Science for Collective Action) is proposing a new understanding of Citizen Social Science as a participatory research co-designed and directly driven by citizens and citizen groups sharing a social concern (See Figure 1). CoAct proposes to face four “wicked” social global issues by engaging citizens in a vulnerable situation. The approach represents a new understanding of the underexplored field of Citizen Social Science (CSS), understood here as participatory research co-designed with citizen groups sharing a social concern. The joint effort will result in the implementation of new or improved science-related policies and the advancement of the CSS approach with regards to its applicability in concrete fields or research. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 8 Figure 1: Citizen Social Science in Action, with citizen groups, a specific concern, and with the support of the Knowledge Coalition In all CoAct R&I Actions (Mental Health Care, Youth Employment and Environmental Justice), citizens in a vulnerable situation are placed at the centre of the research and their role and dedication conceptually recognize them as Co-Researchers. In parallel, the Knowledge Coalition is a network of stakeholders who are informed about the R&I Actions’ goals, and play an active role, either participating in or co-designing different actions, to harness Co-Researchers' efforts and implement policies and measures based on scientific evidence. 2.2 Definition of the Knowledge Coalition Knowledge Coalitions are formed by representatives of Public Administrations, Civil Society Organisations (CSOs), educative organisations and Co-Researchers –to name a few. All R&I Actions involve people from different areas of the political, academic/scientific and social realm, according to their field of research. They strive to assure that the composition of the Knowledge Coalition reflects the diversity of actors within their field and is sensitive to gender balance and other socio-structural categories that might become relevant such as ethnicity or age. The involvement and collaboration of the Knowledge Coalition members varies according to the specific R&I Action and different actors may participate in different activities according to their expertise, interest and #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 9 expectations regarding synergies with their own activities associated to the social concern. The participation of the individual parties of the Knowledge Coalition can take place in various forms and in different moments of the R&I cycle: creating a structural framework for research, participating in the actual research process, informing on corresponding issues, implementing and discussing possible solutions or getting involved in the dissemination of the project and the transformation of research results into actions according to its acting potential. Regardless of the role, each R&I Action facilitates spaces for dialogue and action with different actors promoting the creation of a dynamic network and building from synergies among different initiatives adding therefore to the collective effort towards transformation. In order to coordinate the network and opening up spaces for deliberation, the R&I Actions use different methods and approaches, from joint discussions, workshops, expert talks and digital tools to strategy meetings, which aim at a diversity of on- and offline participation possibilities. 2.3 R&I Action #3 Scope The R&I Action on Environmental Justice explores socio-environmental problems in the Matanza- Riachuelo river basin with the aim of promoting transformative action. The Matanza-Riachuelo is a heavily contaminated 64 km long river that runs along the southern limit of the City of Buenos Aires, where 6 million people live. It is estimated that 1.8 million people in the basin live in highly vulnerable conditions1, in terms of housing and access to basic infrastructure. There are several socio-environmental problems related to: 1 See social vulnerability index build by ACUMAR (2018) p. 31 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 10 i) contamination from production activities (mainly industrial but also agriculture); sewage effluents since 50% of population in the basin is not connected to sewage system (ACUMAR, 2020, p. 44) and open garbage dumps ii) poor infrastructure in terms of housing (around 800 people live in informal settlements and slums (ACUMAR, 2018, p.31), some of them built on garbage dumps), lack of access to safe water for 21 % of the basin population (ACUMAR, 2020, p.36), and poor access to health system, which exacerbate the social impact of contamination. The Knowledge Coalition works as a network of actors that intervene throughout the project’s R&I cycle, by discussing, defining, and co-designing the different steps towards constructing a digital platform to produce and share data that can contribute to the development and advancement of concrete actions or solutions for the basin’s problems. We will learn from the experience in designing and using a previous platform developed by FARN: QPR which stands for Qué pasa Riachuelo? (What’s up Riachuelo?). This platform will be re-built through co-design mechanisms incorporating different perspectives and viewpoints from the basin communities, scientists, and public authorities. The Citizen Science platform will produce knowledge and understandings about the nature of different socio-environmental problems starting from three of them: water quality, threats to green spaces such as wetlands, and the resettlement of families previously located in the basin towline path. By doing so, it aims to provide useful information to design potential solutions. FARN and CENIT/UNSAM will guide and implement a set of activities to co-create the Citizen Science platform and promote its dissemination: 1) open-ended interviews and workshops to identify socio-environmental problems in the Matanza-Riachuelo basin as they are understood by different actors as well as practices and activities aiming at addressing them; 2) co-design workshops, where #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 11 participants discuss the main functionalities and obstacles for the digital platform development and sustainability; 3) dissemination activities to generate new data sets on socio-environmental problems perception and to define how it can be contrasted with existing information sources and 4) open hackathons for data analysis, interpretation and visualisation of the results. The R&I Action on Environmental Justice’s main Knowledge Coalition actors, the Matanza-Riachuelo basin communities, scientists, and public bodies representatives, are identified through web-based research, bibliometric sources and FARN and CENIT/UNSAM previous connections. We have carried out three activities to reach these actors: interviews, micro-workshops and platform co-design workshops. During interviews, they narrate their experiences in the basin and their understanding of main problems and how citizen participation may help in the production of knowledge for transformative actions in the basin. Community actors also participate in micro- workshops designed to add bottom-up perspectives to social-environmental issues and identify key practices addressing them. Finally, socio-environmental problems identified through interviews and micro-workshops are discussed by the Matanza-Riachuelo communities’ actors, public bodies authorities, members from NGOs, and scientists in a platform co-design workshop. This context provides the opportunity to review preliminary outcomes on the identified problems from an enhanced perspective. The main goal of the co-design workshop is to have instances to reflect on the purpose, type of data and functionalities of the digital platform and to anticipate obstacles that may come up both when designing and using it. Workshops’ participants and interviewees who explicitly communicate their interest in being connected to projects activities and outcomes are all considered members of the Knowledge Coalition, which is then defined as a stakeholder network of actors interested in and informed about the R&I project goal and vision. This network includes activists, social and territorial organisations, NGO’s representatives, neighbours, scientists and policy makers mobilized to promote Environmental #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 12 Justice. The Knowledge Coalition contributes to frame both the R&I Action’s items goals and co- design different activities related to the Citizen Science platform. All actors in this network have experience in putting forward different activities aiming at providing knowledge and actions towards Environmental Justice. We plan to promote synergies with these actors’ practices. We foresee that, responding to their own interests in the different subject matter, actors in the Knowledge Coalition network will participate in and co-organise activities aiming at the design, dissemination, use and/or impact of the Citizen Science platform throughout the project. 3. Knowledge Coalition formation 3.1 Local context mapping The idea of creating a Citizen Science platform to address socio-environmental problems in Matanza-Riachuelo basin was first sketched in 2017. This project was inspired by FARN’s development of the citizen-driven data platform QPR and CENIT/UNSAM research experience on open science and citizen participation in the production of knowledge aiming at transformation. 3.1.1 FARN Experience in Promoting Sanitation and Facilitating Citizen Participation in the Basin In 2004 a group of local residents and workers from Villa Inflamable presented a lawsuit before the Supreme Court of Justice of the Nation (hereafter the Court). The lawsuit focused on environmental pollution damage in the Matanza-Riachuelo basin and a series of demands and claims against the National State, the Province of Buenos Aires, the Government of the City of Buenos Aires and forty- four companies. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 13 In 2006 the Matanza-Riachuelo Basin Authority (ACUMAR) was created. ACUMAR is an autonomous public organisation which combines the work of the three levels of governments that have authority over the territory (National, Buenos Aires Province, and Buenos Aires City). It is the highest authority in the area on environmental issues. In 2008, the Court, in a landmark ruling, instructed ACUMAR: i) to repair air, water, and ground damage caused by discharges to the river; ii) to improve the quality of life of the citizens of the entire basin and iii) to prevent future damage. Also, in 2008 a group of Civil Society Organisations (CSOs), including FARN2 were admitted by the Court as third parties interested in the legal cause. Together with the Ombudsman, and other three CSOs, the Collegiate Body was created by the Supreme Court's ruling to monitor the environmental clean-up and the progress of the Sanitation Plan (PISA Plan Integral de Saneamiento Ambiental in Spanish). Specifically, among the given roles was to promote citizen participation in the monitoring of the environmental clean-up and associated activities of the basin. It was subsequently decided that this Collegiate Body assumes the actual representation of the public in that process of sanitation. The Court mandate was to foster citizen participation in the monitoring of ACUMAR´s work, especially in its compliance with the Sanitation Plan. In 2010 FARN and other CSOs initiated the project QPR Qué pasa Riachuelo? and in 2011 they launched the geo-referenced platform that enabled open access to data related to the ACUMAR’s PISA. The final expected outcome was that communities could monitor these activities’ execution and influence public policies in their territory. In a second stage, QPR published citizen-generated data, which was a very innovative move. QPR became one of the first citizen-driven platforms in the country. The new section, “Social Monitoring'', 2 The other CSOs were Greenpeace Argentina Foundation; Social and Legal Research Centre (Centro de Estudios Legales y Sociales) and Neighbours Association of La Boca. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 14 established active mechanisms to control and watchdog the Sanitation Plan’s execution. This section included a new feature: a form that could be completed anonymously by citizens. This form gathered information that was then uploaded and published as a “story” (a neighbourhood alert taken by FARN to request further information on the matter to the competent authority) or as an “action” (an activity carried out by the community); whose responses were also published. “Social Monitoring'' section also included a “News” subsection that displayed a social survey on the presence of the issues associated with the Basin in the media. For more information on the case, please see Fressoli and Arza (2016) and Mira (2016). In its first stage of development, FARN and other CSOs established an agreement with ACUMAR to fetch data about PISA execution and to publish it on an interactive map. Neighbours from different parts of the basin and the CSOs involved were able to visualize this information and to contrast it with the cleaning up activities carried out in the basin’s territory. This was a key step since information was neither systematised nor easily accessible at that point in time. QPR 1 (2011) QPR 2 (2012-2014) Data Fetch data from ACUMAR. Display data on an interactive map. Fetch data from ACUMAR, TECHO. Publish data produced by social organisations. Display data on an interactive map. Citizen participation features Upload citizen-generated alerts using an online form administered during face-to-face workshops and meetings. Upload citizen-generated alerts using an online and public form. Platform provides environmental traffic light based on that data #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 15 Technologies USHAHIDI, JavaScript, CSS, HTML, ApacheConf Data cleansing Different instances of information cleansing: Collegiate body, FARN. Platform strategy development environment (Garage Lab). Citizen alerts and reports validated collectively during meetings. FARN staff checked citizen-generated data before publication. Data openness Datasets open to the public in csv format available on http://datospublicos.org/ Datasets open to the public in csv format. Dissemination activities Workshops at Matanza-Riachuelo basin schools. Workshops all along the Matanza- Riachuelo basin. Contact local newspapers. Table 1: Technologies and main features of previous two versions of FARN’s QPR Although FARN organised workshops and other activities within the community to foster platform use, spontaneous participation was rather low. First, neighbours from the basin did not perceive the platform as a tool to solve their problems and eventually lost interest in reporting any situation as there were no concrete responses carried-out by ACUMAR. Second, neighbours feared reprisals by powerful groups with conflicting interests (e.g., industries verting waste). Third, the wide digital and technology gap in the affected communities limited the platform’s use to the FARN workshops. The QPR’s dependency on workshops to feed its database weakened its community impact. As soon as the project ran out of funds to sustain the workshops, the generation of systematic information could not be further guaranteed. Funding was also needed for the cross-reference validation done by FARN’s own staff on the citizen information about breaches to existing regulation and on the follow-up with national authorities on the different issues raised on the platform. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 16 Overall, QPR's main success was to push ACUMAR to grant access to information related to the Sanitation Plan, to systematize existing data and to make it visible. This was a central claim from communities seeking solutions to long-lasting socio environmental problems. In fact, ACUMAR ended-up developing its own geo-referenced tool showing information on socio-environmental basin’s problems, among other issues. However, the goal to foster citizen-generated data remained unfulfilled. The mentioned experiences made it clear that a new version of QPR had to be re-conceptualized to become a tool that could be uptaken by citizens. This goal not only aims at increasing the amount of citizen-generated data but also to build a sustainable platform that might become more independent from resources raised by leading organisations. 3.1.2 CENIT/UNSAM Experience with Open Science and Citizen Participation in the Production of Knowledge Towards Transformation In 2015 CENIT/UNSAM led a research project to understand how participatory science could contribute to overcoming health, inclusion, and environmental challenges in Argentina. This project was part of the Open and Collaborative Science in Development Network and CENIT/UNSAM research team analysed the Sanitary Camps (Campamentos Sanitarios) in different rural and peri urban settings. These camps were organised by medical faculty and students responding to communities’ demand for epidemiological data in locations exposed to pesticide sprayings. The Sanitary Camps were held from 2010 until 2019 as part of the medical curricula at the National University of Rosario School of Medicine and produced epidemiological data representing more than 100,000 people (Verzeñassi & Vallini, 2019). The camps involved communities and local governments in the research process and the dissemination of the collected data. Their action had a tremendous political and social impact, especially for Sprayed Peoples (Pueblos Fumigados) and #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 17 other socio-environmental movements that tried to document the detrimental human health impacts of the agro-industrial system based on extensive use of pesticides, a research area barely studied. Eventually, the Sanitary Camps were dismantled by the School of Medicine’s authorities. A great opportunity for transformation was lost and the question on how participatory science aiming at transformation in a political conflictive situation could overcome social, cultural and political barriers remains open. These are typical obstacles in undone science (Hess, 2007) and studying them is particularly critical for open science scholars as we struggle with the question of how to incorporate political angle when dealing with methodological decisions, such as how to share data and information without risk of data being misused or the projects being boycotted/suppressed. When researchers from CENIT/UNSAM first learnt about QPR, they got very enthusiastic about the role the tool had in pushing public policy forward. They also saw the potential to go beyond its social monitoring role and to use it to create relevant knowledge for solving pressing socio-environmental problems, influencing public policy and promoting transformative actions. As the Sanitary Camps experience showed, when the community gets involved in participatory research, they do so mobilised by the urge to change their reality. The community could tell what types of practices could work better than others. Social scientists and CSOs could also contribute methodologically and by promoting strategic alliances to push data and ideas to convert into public policy and actions. CENIT/UNSAM has been very active in advocating open science policies in Argentina. The research centre has actively collaborated with other research organisations, CSOs and public policy, including the Science and Technology Policy authority to advance discussions on both the promotion of open and citizen science and how to articulate it into public policy schemes. Activities included seminars, policy workshops, technical assistance, festivals, community workshops and other dissemination activities. All these activities allowed CENIT/UNSAM to better understand the potential #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 18 challenges in developing citizen science projects, addressing also the necessary alliances for conducting this type of research. 3.1.3 CoAct Riachuelo In 2017 both teams started to collaborate and jointly developed the vision that citizen participation facilitated by digital tools could promote transformative actions towards Environmental Justice in the basin. They agreed to learn from QPR experience and re-launch a new platform to share and create new knowledge on citizen’s understanding of socio-environmental problems and their practical experiences in dealing with them. Based on their previous experience and connections, FARN and CENIT/UNSAM defined that there were three types of actors that had to be involved to put forward their project on Citizen Science for Environmental Justice. First, CSOs that had been participating in the basin's judicial conflict and the public policy catalysed by it and territorial organisations or individuals from the community with personal experience in searching for solutions to socio- environmental problems to be prioritized (see below). FARN is the primary contact point for their previous experience working with these local groups or organisations. We aim at good gender and geographical balance. Second, academic organisations and researchers working on those socio-environmental issues or with experience in advancing Citizen Science projects. CENIT/UNSAM is the main contact point, and selection considers disciplinary and gender diversity, with a particular focus on Universities located in the basin and research groups with previous experience in participatory science. Third, policy makers from different jurisdictional levels (municipalities, provincial and national) with presence in different geographical areas of the basin, with special focus and responsibilities on environmental or sanitation policies. FARN and CENIT/UNSAM would work side by side to bring along these stakeholders, building from their previous networks and expertise. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 19 3.1.4 Other Citizen Science Initiatives in the Riachuelo Basin We must also mention some particular experiences of Citizen Science in the Matanza-Riachuelo basin, associated with socio-environmental problems, which are close cousins of our R&I action and whose main representatives are also part of our Knowledge Coalition. On the one hand, AppEAR is a project with both scientific and educational goals, that aims at mapping aquatic habitats of the continental water bodies in Argentina. It also includes educational content and games in a mobile application and web-based platform (Cochero, 2018). The basin’s territory is included in the more 400 sampling sites of the project. Anticipando la Crecida was launched in 2014 as an extension project from the University of Buenos Aires. Since 2017 it has an agreement with Municipality of La Matanza, one of the jurisdictions that is more affected by the risk parameters identified by ACUMAR (ACUMAR, 2018). Biodiversity in the Matanza-Riachuelo basin (Biodiversidad de La Cuenca Matanza-Riachuelo · INaturalist, n.d.) is a Citizen Science initiative promoted by FARN in the context of the international program “Humedales sin Fronteras” (Wetlands without borders). The initiative uses the platform iNaturalist to register citizens observations of natural species in the area, promoting their conservation and the visibility of the threats that affect them. 3.2 Knowledge Coalition constitution process Once we identified the three different groups—policy makers, science actors and community actors—we started mapping potential candidates within each of them. FARN included community members who were known to be active in the basin, based on their own experience and also drawing from existing networks of territorial organisations and other CSOs working with them. CENIT/UNSAM searched for academic actors by analysing public bibliometric databases as well as the national portal on information in science and technology, which includes projects, researchers and scientific database. The list of candidates of policy actors include all relevant organisations working on environmental and sanitation policy in the basin. From these lists CENIT/UNSAM and FARN #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 20 collectively selected 45 people (50% female) as potential candidates to be invited to the project activities and who therefore could become part of the Knowledge Coalition. We sought to promote diversity in terms of variables mentioned above: gender, geography, political jurisdiction and discipline. In addition, especially in the case of community and policy actors, previous connection was also a variable that weighed heavily in our selection decision. Before formally contacting any of these actors, we worked on the ethical and data security aspects of these activities. This proved to be challenging since there is not much experience in ethical procedures for social sciences in Argentina. Neither UNSAM nor FARN had an Ethical Committee who could revise our procedures. We reviewed several informed consent (IC) procedures for other research areas, and we studied Argentinean regulation both on Personal Data and science and technology activities, which are both consistent with General Data Protection Regulation (GDPR). Our research activities are aligned with the ethics requirements contemplated in the 3º article of the Argentinian Law 25.467 of the National System of Science, Technology and Innovation, regarding the inalienable and universal principles for conducting research activities. Additionally, the project is compliant with the Law 25.326 of personal data protection requisites, as the investigation procedures contemplate informing the participants about how their personal data will be handled and processed. For this purpose, IC forms have been developed, in order to make participants aware of their rights and of the data's different uses. The procedure was approved by the UNSAM Vice Dean office, which is responsible for research projects in UNSAM. We developed different IC forms for the different planned activities; these were later modified, to adapt to the online activities as imposed by the Covid-19’s lockdown measures. Eventually we also simplified them using plain language techniques and video formats to address certain obstacles (see more on section 4.1 below). The IC forms and procedures for our R&I action also benefited widely from contributions by other researchers in the CoAct consortium. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 21 Finally, regarding Data Protection, we discussed our research data cycle for the development of the data management plan by Open Knowledge Foundation, part of CoAct consortium. When our research activities started and we began to generate and collect data we consulted with the UNSAM information technology team on cybersecurity issues in the context of home office imposed by the lockdown. They informed us to continue working with the institutional accounts of the cloud service of GDrive provided by the UNSAM. We have also requested remote access to the institution’s service to make monthly backups. 4. Knowledge Coalition in action Our plans to build the Knowledge Coalition had to be modified due to the Covid-19 pandemic and associated lockdown measures that started in mid-March 2020 and continue until the present time (early November 2020). People need special permits to move further than 500 meters away from home and gathering indoors is forbidden. Thus, our planned activities had to go fully virtual and it became challenging to reach both community actors —who had poor or no connectivity— and policy makers. Our research takes place in the areas more heavily affected by the Covid-19 spread. In addition, Argentina is going through an economic crisis, which preceded the lockdown but has worsened by the pandemic and associated lockdown measures. Therefore, both community and policy makers are affected by high degrees of sanitarian and economic urgencies. To build the Knowledge Coalition we planned to perform interviews from the above-mentioned list of 45 people, and to organise a “recognition workshop” to consolidate it, and jointly co-design the upcoming activities. The workshop was planned for the first semester of 2020 and was first postponed under the expectations that restrictions were going to end within a few months. As this did not happen, we eventually had to cancel the face-to-face format. We proceeded to interview #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 22 potential Knowledge Coalition actors and replaced the “recognition workshop” with other types of virtual workshops as discussed in more detail below. 4.1 Knowledge Coalition Activities For developing the network of actors to be part of the Knowledge Coalition we developed three different types of activities: interviews, micro-workshops with the community, and a platform co- design workshop. Table 2 briefly summarises the characteristics of participants and the digital tools used in each instance, which are described in more detail below. #5.1 Report on Knowledge Coalition Building | The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 23 Date Platforms used Science actors Public policy actors Community actors Total participants Territorial organisations from the Basin NGOs or other CSOs People Organisations / projects Micro- Workshop 1 participants 11/8/2020 Zoom People - - 6 2 8 2 (Organisations) (1) (1) Micro- Workshop 2 participants 25/8/2020 Zoom People - - 6 2 8 4 (Organisations) (3) (1) Interviewees April to September 2020 Zoom/Meet People 11 5 1 4 21 17 (Organisations. / research groups) (9) (4) (1) (3) Workshop participants 29/10/2020 Zoom/ Jamboard/ Mentimeter/ Padlet People 2 9 4 7 22 17 (Organisations. / research groups) (2) (6) (3) (6) Actors in the Knowledge Coalition network (counted only once, although they may have participated in different activities) 51 30 Table 2: Participants in different activities organised as part of CoAct R&I # 3 from April to October 2020 and digital tools used #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 24 4.1.1 Initiating First Contact: the Interviews We designed three types of questionnaires for one-hour interviews with the three different types of actors. The questionnaire includes some questions that were common to all types of actors and some actor-type’s specific ones. Among the former, we ask about the role/experience/activities of each actor in the basin; the problems/issues that each actor understands as the most relevant and the best/possible solutions that they identify. In addition, we asked all of them about the role of citizen participation in policy making (for community and policy actors) and on knowledge production (for academic actors). Finally, we also ask them to recommend some other groups or projects that may be interested in our project, so as to continue enlarging our network. Regarding the specific sections, for community actors, there were questions regarding the role of public policies; for academic actors, there were questions about the contribution of science in policy making; and, finally, for policy makers we asked about their priorities in the basin and how they matched those coming from community actors. We performed 18 interviews, some of them to individual actors and others, to a couple of them jointly. As can be seen in Table 2, there were 5 people from the community or CSOs, 11 from the scientific organisations and 5 from the policy sector; 57% of them were women. In all interviews IC forms were sent in advance, 30% provided oral consent during the interviews. Most interviews were recorded. IC for interviews included a series of statements for which people could choose their preference regarding the use of personal data. In general, people have agreed on us sharing direct quotes from interviews and attributing them with full names, but they normally requested us to show quotes beforehand. Particularly for community actors, IC procedures resulted to be cumbersome. Some of the expressed obstacles were associated with the provision of digital signatures and with the length and technical language. To address these, we opted for oral consents #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 25 in some cases and eventually simplifying the content and changing the procedure for community members (see below). 4.1.2 Micro-workshops, a tool to Co-produce Knowledge in Lockdown Time During July and August, we organised online micro-workshops to be held only with members of the basin’s local communities. The purpose of these workshops was to collect these stakeholders’ collective views on socio-environmental problems and their practices to overcome them. They were planned together with Iconoclasistas, the art-group that is also part of our Knowledge Coalition, who are the experts in the collective mapping methodologies that were part of the activities we had planned for our R&I action pre-Covid-19. So far micro-workshops have been organised with participants from two different locations of the basin. There were six participants in each workshop, who knew each other and lived nearby and belong to territorial organisations such as museums, schools, and neighbour associations. Workshops were coordinated through WhatsApp groups to agree on schedule, to share information, including IC materials and to answer specific questions. They were conducted through video calls in the Zoom platform. They were only audio-recorded. During the workshops, Iconoclasistas worked with maps of the neighbourhoods and asked participants to use a piece of paper, which was divided in three columns. In each of them they had to identify problems, positive practices to address them, and most prominent territorial organisations responsible for those practices. They were also asked to geo-reference those elements. Micro- workshops lasted over two hours and a half, during which people shared their annotations and thoughts while Iconoclasistas were taking notes on the maps. People interacted while presenting their views, complementing their experiences and getting involved in conversations about problems, practices, actors and locations. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 26 The micro-workshop method was an adequate approach for producing rich information and could work as a first step in the process of co-designing a Citizen Social Science project in a digital environment: it allowed to engage the communities in a discussion with researchers in a dynamic way, because it generated a sense of collective belonging. Through the dialogue it allowed the development of a collective vision of socio-environmental problems. Since the method contributes to the identification of actors and practices that help to solve problems, it facilitates the discussion about future possible pathways for action. This information was very rich for expanding the map of actors and also for identifying positive practices. Based on our experience with IC forms in interviews with community actors, for micro-workshops we decided to change our IC procedures. FARN produced a video which explains the main activities of our R&I action, including how the information was going to be used. The video and a statement on our commitment regarding the use of the data was sent by WhatsApp, and participants had the chance to ask questions using the same platform. In addition, we dedicated the first half an hour to read a plain language version of the aspects that required consent, showed the video again, answered any question and recorded an oral statement of agreement from all participants. 4.1.3 Narrowing the Scope: Focussing on Strategic Topics Based on the information gathered during interviews and considering FARN's experience and agenda in the basin, we decided to start working on three issues, all of which are of great relevance in relation to Environmental Justice and citizen participation. Those issues are water quality; protection of green areas and relocation of population affected by situations of environmental risk. The decision to focus on these issues was both strategic and practical. On the one hand, FARN has been leading both judicial activities and territorial engagement on these topics, and thus it makes #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 27 sense to focus the development of the platform on issues well connected to FARN’s current and future agenda. On the other hand, given lockdown restrictions, and because we were not able to organise collective mapping workshops as initially planned, we decided to start working in the platform’s co-design using virtual on-line workshops. To make them manageable, we needed to reduce the quantity of socio-environmental issues and thus, decided to start working on the topics that were identified —in interviews and micro workshops— as relevant and coincide with FARN’s own agenda. The platform could then incorporate other socio-environmental demands. Water quality is a key issue in the Riachuelo basin. The water receives sewage and industrial effluents, as well as solid urban waste, which represent the main causes of contamination in the basin. By jointly analysing the water quality and the evolution of associated regulation, it is possible to observe both the advances or setbacks in polluting factors and in public policies aimed at rebuilding the environment and preventing future damage. ACUMAR has the leading role in terms of ruling about water quality. The Collegiate Body is currently demanding the setup of new limits in terms of permitted discharge amounts and water quality goals that may allow the restoration of the river. In 2017 new regulation was issued which modifies parameters but expected improvements in terms of water quality based on those new values and assessment methods are marginally. The water quality goal that has been established, according to the Collegiate Body, is also insufficient to reduce contamination. By including this topic on the platform, the population could report isolated events, such as strange spills, increased rubbish in the water mirror. Also, they could share their understanding or personal experience on water quality or public policy, and how that matters for their lives. For several years, FARN brought evidence on these issues, partly collected using the preliminary versions of QPR as a #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 28 social monitoring tool3. The organisation systematically discussed in Court the importance of water quality, since it is a central issue for environmental recompositing. The wetlands of the basin are the most significant green spaces, the sites with the greatest biodiversity in the basin, where nature becomes present in an urban setting. This issue has been prioritized because it accounts for the relation between people and ecosystems, their involvement in taking care and valuing the last remaining natural areas within a highly dense metropolitan region. The state of wetlands is highly relevant for basin environmental health. They provide fundamental environmental services and constitute the main tool for environmental re-composition since the river has minimal slope, with almost stagnant waters. Nevertheless, wetlands in the basin are territories under dispute, with several different actors pushing for their access to land. Citizens groups have collectively requested the legal protection of these areas for a long time. Some protection was achieved in some areas of the basin. However, both real estate companies and different private projects (including a waste management company) have occupied these areas, putting them in danger. There are different kinds of conflicts in the area, involving not only different jurisdictions but also diverse economic, habitational and nature conservation interests. Many of these conflicts are taken to the judiciary powers. 3 The regulation of water quality and its control have been highlighted by the Collegiate Body in the last hearings convened by the Supreme Court in 2016 and 2018, as can be seen in the public access file (Autos “Mendoza, Beatriz y otros c/ Estado Nacional y otros s/ daños y perjuicios (daños derivados de la contaminación ambiental del Río Matanza Riachuelo)”, expte. Nº CSJN 1569/04(40-M)) and especially in presentations “Opinión del Cuerpo Colegiado 2016” and “Resumen de la presentación - Cuerpo Colegiado - Audiencia 14-3-18”. Also in the published document “9 años del fallo de la Corte. Una política de Estado todavía ausente. 2017”. On the other hand, in the execution file of the sentence in relation to water quality (“Acumar c/ Estado de Aguas, napas subterráneas y calidad de aire” FSM 052000003/2013, that processes before Juzgado Federal de Morón Nº2) there are numerous presentations by the Collegiate Body in relation to Resolution 46/17 on water quality. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 29 Moreover, a draft law on the protection of wetlands is being discussed at the national level in Congress, which could have a high impact on the Riachuelo Basin. FARN has been working on protecting wetlands for several years4. The organisation has advocated for wetlands to become natural reserves, using different legal strategies including litigation. Hence, it has strong ties with territorial organisations and residents who work for their protection. Some are members of the Knowledge Coalition and co-researchers in this R&I action. FARN is currently part of a campaign to achieve the legal protection of Ciudad Evita´s wetland and also monitors the situation of other wetlands, making legal presentations as to avoid alterations to those ecosystems. Finally, we included relocation of the population5 living in areas with environmental risks for three reasons. Firstly, this is a question of great social and legal relevance: as part of the judicial mandate of the Supremes Court, around 17,700 families had to forcibly move in order to restore the 4 Through its biodiversity area, FARN has been working on the protection of wetlands for several years, throughout the national territory and particularly in the Matanza Riachuelo Basin. FARN promotes the enactment of a wetland protection law (https://farn.org.ar/leydehumedalesya-ambientalistas-piden-avanzar-con-un-texto-unificado/) and works for the specific protection of wetlands in the Riachuelo through studies (https://farn.org.ar/wp- content/uploads/2020/10/Reserva-Ciudad-Evita.pdf), written and audio-visual publications (https://youtu.be/- gN7A2o0Arw https://www.youtube.com/watch?v=_pMRW2Lihto&feature=youtu.be https://farn.org.ar/preocupacion- por-la-reserva-municipal-santa-catalina/),presentations to administrative authorities (https://farn.org.ar/alerta-en- santa-catalina-por-obras-de-ampliacon-de-vias/ https://farn.org.ar/farn-pidio-al-poder-ejecutivo-de-la-provincia-de- buenos-aires-vetar-la-ley-que-desafecta-64-hectareas-de-la-reserva-natural-laguna-de-rocha/ ) and before the court of execution of the sentence "Mendoza", where various intrusions in the wetlands of the basin have been denounced and the judge was able to order the creation of an environmental evaluation system in ACUMAR of works and projects to be carried out in wetlands or protected natural areas and to protect (all this can be seen in the public access file “Ordenamiento territorial (autorización de mov. de suelos) s Contencioso” FSM 052000017/2013, that processes before Juzgado Federal de Morón Nº2). 5 Part of the actions that FARN has developed in this matter can be reflected in the hearings cited in note 1 and in the file of relocations of the execution of the sentence “Mendoza” (“Acumar s/ Urbanización de villas y asentamientos precarios s/ Contencioso Administrativo”FSM 052000001/2013, that processes before Juzgado Federal de Morón Nº2). There, irregularities have been reported in construction projects, shortcomings in moving processes and lack of compliance by political leaders. The organisation also participated in a public hearing held to create a relocation protocol (https://www.acumar.gob.ar/wp-content/uploads/2016/12/Informe-Final-Audiencia-P%C3%BAblica-2017.pdf ). #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 30 environment and avoid risks to the population. New houses have been slowly built (over 4000). There have been discussions about the quality of the new houses, their location (in relation to the life plan of the people and the environmental status of the new locations), the quality of the constructions, the participation of the people affected in the processes and decision-making. As a matter of fact, this is the only issue included in the judicial cause that had direct participation of affected people. There are many different ways in which policy making has responded to these processes. But the information is dispersed; each process has been carried out without information from the others. The platform could then be a very relevant tool to facilitate participation, to share experiences and practical knowledge, and to strengthen connections that may enable transformative actions towards improving living conditions for communities in the basin. Issue Relevance Connection to FARN’s agenda Platform´s potential contribution (examples) water quality Sewage and industrial effluents, as well as solid urban waste, represent the main causes of contamination in the basin. For several years, FARN brought evidence on water quality. The organisation systematically discussed its importance in Court. To share people understanding or personal experience on water quality or public policy, and how that matters for their lives. protection of green areas Green areas provide fundamental environmental services and constitute the main tool for environmental re-composition. Nevertheless, wetlands in the basin are territories under dispute, with several different actors pushing for their access to land. FARN has been working on protecting wetlands for several years. The organisation has advocated for wetlands to become natural reserves, using different legal strategies including litigation. Articulation among different organisations, for instance to share strategies towards green area conservation. relocation of population affected by situations of environmental risk As part of the judicial mandate of the Supremes Court, around 17,700 families had to forcibly move in order to restore the environment and avoid risks to the population. There FARN has been active in reporting irregularities in relation to relocations in different judicial causes. The organisation also participated in public hearings held to create a relocation protocol To share experiences and practical knowledge, and to strengthen connections that may enable transformative actions towards improving living conditions for communities #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 31 have been discussions about the quality of the new houses, their location (in relation to the life plan of the people and the environmental status of the new locations), the quality of the constructions, the participation of the people affected in the processes and decision-making. in the basin. Table 3: Selected Environmental Justice issues in Matanza-Riachuelo to start working in the platform co- design 4.1.4 Targeting the Platform: the Co-design Workshop The goal of the workshop was to produce a first brainstorming of ideas about how the platform could become a useful tool for sharing ideas, experiences and practices in relation to problems and solutions involved in each of the three selected topics. At the same time, this workshop enabled the interaction among members of our Knowledge Coalition network for the first time. Therefore, it had the double purpose of formally launching the project and creating a space for the stakeholders to start interacting. We needed a virtual space designed for people to share their ideas regarding the project’s purpose, in the context of lockdown restrictions, this had to be virtual. We adapted methods for a digital experience taking into consideration that it included people who were not necessarily accustomed to digital tools, neither they knew each other. Participants We built a list of 120 potential candidates to be invited to the workshop. Among them there were 15% from scientific organisations, 33% from policy and 52% from the community. The invitations included a flyer for advertising the event, the workshop programme and a registration form which #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 32 included the video on information of personal data management (same video as in micro-workshops). To register for the workshop, people had to agree on our data policy, and they could opt for their names to be mentioned as participants. Only those properly registered were contacted with the virtual credential to attend the meeting. Especially among community members, there were some people that were not included in the original list but learned about the workshops by other members of the community and asked for permission to participate, which was granted in all cases. Members of CENIT/UNSAM and FARN pursued a dedicated follow-up of invitees. In total there were 34 registered participants and over half of them actually participated in the workshop. Among participants, there were around 10% from scientific organisations, 45% from community and CSOs and 45% from Policy covering different jurisdictions; 50% of participants were female and their interests were evenly spread around the three thematic areas. Some people that had registered to participate afterwards explained that they had overlapping activities but were still interested in the project. Also, at the last moment some community members who had registered to participate had to deal with some emergency situation in their territory and did not attend. We will follow-up on this too. Methods - Dynamics The workshop lasted two hours and included plenary and group sessions. The main goal of the activity was to gather information on the participants’ inputs on the project main outcome: an open- source Citizen Science platform for promoting actions towards Environmental Justice There were three plenary sessions, with group sessions in-between. We used several digital tools as mentioned below and enabled the Zoom chat for conversation and reactions. The first plenary included presentations by representatives of both leading organisations (FARN and CENIT/UNSAM) about the project and its Citizen Social Science approach. After these, a collective #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 33 exercise to gather information was conducted using the online tool of wordcloud of Mentimeter. Two questions were posed to the group in order to understand participants' perception of the existing problems: first, we presented a question on the main socio-environmental problems in the basin; and second, we proceeded similarly but focussing on of each the three topics of interest: conservation of green areas, water quality and relocations. The wordclouds that emerged from this session were then used as inputs for the discussions on both group sessions. The second plenary session consisted of a brief presentation of FARN’s previous versions of QPR platform and their interest in promoting the participation in the basin as a fundamental aspect of Environmental Justice. The relevance of the three thematic areas was also briefly discussed. Finally, the last plenary session included the presentation of the group discussions and a reflexive exercise conducted by ZSI to gather information on the participants’ expectations about the project using the Padlet tool. The group discussions were facilitated and annotated by CENIT/UNSAM and FARN teams. The first group session aimed at identifying how people got informed about socio-environmental problems in the basin with the idea to create an initial map of the type and sources of information about the basin that could be included in the platform. Therefore, we used the first group session as a first anchor in the process of collectively discussing the project: stakeholders were asked about their knowledge regarding information sources and formats and the problems they face when using it. This contributed to focus on the project’s main goal (to create an online Citizen Science platform to map socio-environmental problems and potential solutions) by broadening out the diversity of perspectives of what is considered useful information. The second session was more directly associated with the project’s expected output: we asked participants to discuss their ideas about the platform’s purpose and the information to be produced and shared through it on each thematic topic. We used the wordclouds from the mentimeter exercise as reflexive points but with the focus on online interactive formats (as presented by the examples #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 34 from the first session). We also asked about obstacles and problems that may turn up when designing and using such a platform. The group sessions were organised through breakout rooms where the facilitators used the Google Jamboard tool to introduce the discussions in interactive ways, and for the participants to be able to write their thoughts and opinions in a more direct way, considering they may not feel initially comfortable with sharing them out loud. The boards also aimed at providing a record of the discussions, and to allow the facilitators to have inputs to catalyse the conversation, as they were shared online and the annotations visible for the participants in the other breakout rooms, allowing for cross fertilization of the debate. 4.1.5 The Knowledge Coalition as a Network Approach We initiated the project idea in close collaboration with a dozen of actors among policy makers, CSOs and community actors, and researchers from academic organisations, all of whom wrote letters of support for the project proposal in March 2019. In Figure 2 we draw how the network expanded both outside but especially inside the Matanza-Riachuelo basin. New actors who shared the R&I action were contacted by FARN and CENIT/UNSAM to take part in some of the activities we described above. There were also some few cases that initiated the contact themselves. Those that expressed their interest to remain connected are considered part of the Knowledge Coalition network, reaching a total of 32 actors, classified in research groups (28%), public policy organisations (22%) and CSOs (50%).6 6 In Table 2 we stated that there 29 unique organisations which participated in the R&I action activities but in Figure 2 there are two additional organizations (one NGO and one territorial organization) which are part of our knowledge coalition since 2019. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 35 Thus, we define our Knowledge Coalition as a network of stakeholders who are interested in and informed about the R&I project goal and vision and who play an active role, either participating in or co-designing different actions. Actors in this network interact and deliberate in spaces mainly facilitated by the project's coordination team. In all cases, we seek to build from synergies of their activities in the basin. 36 Figure 2: Network expansion in 18 months within and outside the Matanza-Riachuelo basin #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 37 4.2 Knowledge Coalition Outcomes 4.2.1 Introduction This section is organised in three blocks. First, based on interviews and micro-workshops, we present the socio-environmental problems and actors’ socio-technical practices addressing them. We found an extensive list of socio-environmental problems affecting the basin that we classified in broad categories, developed to allow comparability with other sources of information, especially ACUMAR. We contrast these understandings across different types of actors and in different locations. Second, we focus on the concept of participation for the production of knowledge that could contribute towards transformation. We are interested in reflecting from the perspective of different actors conforming the Knowledge Xoalition their understandings on the value of participation and also on how participation could be implemented and supported. We believe it is important to recognize that there are different ways in which participants could engage with Citizen Science projects (Haklay, 2018), depending on their interests, capabilities and project goals. Thus, in our R&I action we also expect that participation will adopt different characteristics for different actors in different activities and processes. Particularly, we are interested in addressing how the communities, in general, and co-researchers who are part of the Knowledge Coalition will participate. In this section we will present an approach to the stakeholders’ perceptions of citizens’ participation in both policymaking and knowledge production processes. These inputs are key to better understand the expectations and tensions that may appear when co-designing the project and defining its focus in the different instances with the knowledge coalition members #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 38 Third, we present preliminary results on the co-design workshop, particularly in relation to the participating stakeholders’ experience in using available information about the basin and their ideas on the purpose and potential obstacles in using the platform. 4.2.2 Socio-environmental Problems and Practices to address them Figure 37 depicts the most important issues raised by different actors when asked, in an interview setting, about socio environmental problems. Figure 3: Wordcloud of nouns for interviewees’ responses to the question on socio-environmental problems in the basin 7 This wordcloud displays the frequency of nouns used by interviewees to answer the question “What are the Matanza- Riachuelo basin’s main socio-environmental problems?”. We used the bag-of-words method coded in Python to represent the multiset of the words used in this part of the interview and then we filtered all terms that did not match the noun criteria. Finally, we rendered the resulting dataset using nubedepalabras.es #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 39 Those words come as responses to the specific section in the questionnaire asking about socio- environmental problems. Thus, issues related to the water, sanitation, floods, sewage system, settlements (informal housing), rubbish, contamination and health stand out in the wordcloud. However, there are also other nouns, which do not represent problems, specifically, but relate to the situated experience of actors in the basin: such as river, neighbourhoods, neighbours, water streams, territory, work, people, etc. The interviews’ and micro-workshops’ materials (transcriptions and notes) were analysed to map the main issues of the basin identified by the stakeholders. After listing these problems, we codified them into six categories that emerged from the project's original proposal and could work to contrast our findings with official public policy’s documents. The six categories of problems are the following: • social vulnerability: includes any reference from the interviewees or micro-workshops’ participants to the conditions affecting the living standards of communities in the basin. These conditions include infrastructure deficiencies related to the provision of public services and basic rights such as access to food, health, education and housing as well as references to the stigma that such conditions may produce. • contamination: the material consequences of different activities that affect the basin’s environment related to productive activities, deficient public infrastructure and/or individual behaviour. • green spaces conservation: actions and situations that refer to the disturbance of public areas that provide environmental and recreational services to the basin. Some of them were legally defined as objects of protection. • flooding: references to the events produced by the covering or submerging of normally dry land by heavy precipitations and river overflow. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 40 • health problems: all the individual or collective discomforts or diseases that actors directly associate with living in the basin or with contamination. • public policy (actions and inactions): the issues identified as part of the actions or absence of them that are meant to be implemented by the public policy authorities (national, provincial or local) to comply with the judicial sentence request, and translated into the PISA. These categories have some relation with the ones contemplated by ACUMAR’s risk maps, develop to determine the prioritization of the different policy interventions8. The authority refers to social vulnerability—defined as the ascertainable condition of certain groups associated with their exposition to socioeconomic, habitational, sanitary, nutritional, psychosocial and environmental factors that determine their capacity to recover from catastrophes and threats—when including as a variable the people’s housing conditions (for which there is available consolidated official data). Floods and contamination are reflected as several of the threats that are determinants of risk: landfills (sites identified and tracked by the Direction of Solid Waste Management), presence of industrial establishments (considered as priority for control as these industries have been categorized as high in environmental complexity) and the quality of the underground water for human consumption (evaluating the presence of nitrates, as an indicator of potential contamination by industrial activities). The health index considers several issues associated with the morbidity and mortality produced by environmental diseases and contamination (as evaluated by ACUMAR in air, 8 In 2018 the authority developed an environmental risk map (ACUMAR, 2018) with the purpose of guiding public policy interventions (mainly relocations/urbanizations and infrastructure) and a health risk map (Pasqualini et al., 2018) that incorporates among other variables the Integral Evaluations of Environmental Health in Risk Areas (EISAAR for their initials in Spanish) that the authority has been conducting (in alliance with the municipal jurisdictions) since 2016 to evaluate the population’s environmental health by along the basin. In 2019 (ACUMAR, 2019) it also published a report for which it had begun working in 2016 with the National Scientific and Technical Research Council to produce an inventory of the basin’s wetlands, following the judicial demands as well as the Collegiate Body’s recommendations. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 41 water, land, etc.). Finally, protected areas and wetlands in particular are monitored by a program that seeks to create a database for their sustainable management and preservation, although it includes water and sediments parameters only, for the hydrogeological characterization of the wetlands. In Figure 4 below we map the problems that were mentioned during both interviews and micro- workshops and their locations according to actors’ narratives. It goes without saying that data displayed there does not represent a complete picture of the problems faced in each location, but attempts to highlight both the complexity of the socio-environmental phenomena ahead and the extension of situated experiences that conform our network. In addition, since research activities were carried out in the context of Covid-19 pandemic and lockdown restrictions, all actors, but especially community and policy actors, were overwhelmed by daily sanitary and economic emergencies, which may have changed their own priorities regarding socio-environmental problems. The construction of the Knowledge Coalition network is proposed in this project as a dynamic process. So far, we have connected with actors with experience in eight of the fourteen municipalities included in the Matanza-Riachuelo basin: Avellaneda, Almirante Brown, Merlo, Lanús, La Matanza, Lomas de Zamora, Esteban Echeverría, and Buenos Aires City. In most jurisdictions we map socio-environmental problems belonging to several categories, with important specificities in each of them. #5.1 Report on Knowledge Coalition Building 42 Figure 4: Basin map and socio-environmental problems classified in six categories #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 43 When the analysis is organised by types of actors, we could identify different problems’ prioritisation and also different practices aiming at addressing them, as shown below. CSOs and territorial organisations in our network frequently referred to issues related to social vulnerability, particularly in relation to poor access to housing and lack of access to public services such as drinkable water and sewage. Contamination of water and land coming from industrial and sewage waste and rubbish was also pointed out frequently among main problems. Since one of our micro-workshops was organised with neighbour associations defending natural reserves, green area conservation and changes in habitat conditions also turned up as important concerns. Finally, this type of actor was the one more prone to identifying problems they suffered that were directly related to policy action or inaction. CSOs’ and territorial organisations also reported activities to address those issues. These involve the organisation of complaints, mobilisations and environmental awareness campaigns against rubbish dumping, the destruction of natural reserves and the sale of public spaces. CSOs in particular, have a leading role in making visible main issues and in claiming for participation on both regulatory design and monitoring policy processes. Policy makers in our network identified problems similarly to communities but their priorities focus on the social vulnerability —housing deficit and lack of access to public services, but also basic needs such access to food, health and employment. Besides, they also mentioned environmental contamination problems which cannot be underestimated such as rubbish dumps and dumping of sewage and industrial effluents, and their associated health problems they may cause. The deficit of green areas and the risk of gentrification that can follow the improvements at the basin’s environment were also mentioned in some interviews, although not as main problems. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 44 It must be noticed that actors from policy bodies have been in office for less than a year (governments in all jurisdictions changed in December 2019) and during pandemic time. Thus, although they mentioned some specific practices that were carried out in their jurisdictions to promote citizen participation (e.g., municipal forums for the conservation of green spaces) or environmental monitoring (e.g., creation of technical observatory of agrochemicals), they were still incipient and overpassed by other activities to deal with current emergency. Finally, members of research organisations tend to focus on single issues related to their research specialisation. They usually highlight how those issues are important for communities wellbeing. Water quality was one important research goal, and therefore, environmental contamination due to several causes included industrial, agricultural and sewage waste; rubbish dumps were highly mentioned. Researchers relate contamination with health problems and they mention that social vulnerability, especially the one associated with housing and lack of essential public services, only worsen the relation between contamination and health. In addition, the conservation of green areas was also mentioned as vital importance to avoid recurrent floods, aggravated by solid waste disposal obstructing streams, that cause evacuations and even deaths. As mentioned, activities and experiences by researchers from scientific organisations in our network were mostly related to analysing contamination, particularly in relation with water quality. For example, how water remediation tools used in other countries could be applied at the basin, or the elaboration of methods to control water use or the use of Citizen Science methods to monitor aquatic environments. There were also biological studies related to metal contamination, engineering studies for monitoring water bodies throughout the basin to anticipate floods and social studies on the effects of relocation on people and neighbourhoods. Most of these studies attempt to have an impact on public policy. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 45 4.2.3 The Meanings and Processes of Citizen Participation in Policy Making (for Community and Policy Actors) and on Knowledge Production (for Scientific Actors) In our R&I action—and in citizen social science more generally—we envisage that people who engage are politically interested in changing a reality that affects them. They may contribute not just with information or data production about problems as defined by researchers, but also with their personal and situated experience in seeking for solutions. Yet, (their) participation could be organised in different ways by establishing the appropriate governance mechanisms. In this section we discuss how this idea is seen by different actors in the knowledge coalition, when we asked them about their understanding of the role of citizen participation. In our Knowledge Coalition network, citizen participation was recognised as having different roles which could be broadly associated to the different types of actors we interacted with. From a civil society perspective citizen participation in policy making has a democratising role; it is seen as the opportunity to be treated as equals in the definition of public policies priorities. In turn, from the perspective of public policy, citizen participation has a contributory role as it allows for a better identification of community priorities. If successful, this contributes to policy actions to be culturally or socially appropriated by the community, an important dimension for both the effective implementation as well as the sustainability of public policy. Academic actors were asked about the role of citizen participation in the production of scientific knowledge. In general, participation was seen as a route to improve the responsiveness of science. It was claimed that scientific projects could better reach community needs when working closely with them. In addition, due to that very same reason participation also contributed to the legitimisation of #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 46 science, before society and public policy actors, which is valued particularly during periods when public investment in science is questioned. Regarding policymaking processes, civil society actors see that community organisation is a necessary condition for participating in public policies, but it is not sufficient. Articulation with public policy bodies is also important to build trust relations that may be conducive to more effective participation. There are several important experiences in the basin where participation has accomplished important achievements, such as producing information about the sources and consequences of pollution (Pereira & Tobías, 2014), mapping and contrasting the results of the policy implementation (del Castillo & Fressoli, 2016; Radtke, 2018) and co-producing protocols for the relocations processes (Demoy et al., 2016). In all cases, there were social organisations and NGOs involved in the mobilization of different stakeholders. Yet, the organisations and community actors we interacted with identified a risk of citizen discouragement, since participation can be very demanding and—although included in the basin’s sanitation policy judicial sentence—there are no binding mechanisms created for participation to be translated into tangible public policy measures: existing mechanisms such as the “working roundtables” and public audiences are not binding. In addition, processes are so slow that can be frustrating. In turn, policy makers discussed the difficulty of balancing participation and deliberation with contexts of emergency decision-making (such as those imposed with the difficulties of Covid-19 times). But they also discussed the lack of appropriate mechanisms that would enable more engaged participation (innovating from the traditional consultative approaches). Finally, although as we mentioned there are some well-established experiences of Citizen Science in the basin, most researchers we interviewed do not consider citizen participation as an integral part of the knowledge production phase of the research cycle. They see it as part of University outreach #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 47 activities or introduced through traditional channels such as interviews to obtain data, or communication strategies, to share research outcomes, and in some cases, for social monitoring of environmental data. Outside specific Citizen Science networks, there is little knowledge about Citizen Science projects. Researchers working in Citizen Science projects, argued that it proved to be difficult to sustain collaboration with communities for a long time, especially because those activities are not recognised in scientific evaluation schemes and also because it was too demanding on time and energy to be ready to commit to those activities in the long run. Dealing with community expectations, especially in the context of social vulnerability, was also mentioned as an important barrier. 4.2.4 The First Steps Towards Platform Co-design One of the goals of the workshop was to identify current use of digital information by different stakeholders and the problems they face in general when looking for information. Participants discussed in small groups the information they use in their daily activities in the basin and we also asked specifically about some sources of information which share digital open data, to understand their experience with them in terms of access and use. There were 30 unique sources of information mentioned in the almost 50 post-its written in Jamboard. The distribution of digital vs. analogue sources was 20 to 6, with 4 that were classified as ambiguous (as they could be consulted either way and participants did not specify). We also found that in all break-out rooms participants mentioned at least one local source of information (from municipality’s websites or contacts to local press, organisations and neighbours). In relation to people's experience when using available information, the issues mentioned were: information’s obsolescence (due to lack of update or website maintenance); data format which made it difficult to reuse; visualization issues; and data fragmentation. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 48 The second purpose of the workshop was to initiate more concrete discussions with members of the Knowledge Coalition on our R&I action goal of building a Citizen Science platform for mapping socio-environmental problems and promoting actions towards Environmental Justice. We divided the discussion on break-out rooms per thematic areas, but we found that there were some common topics that stood up in all rooms: to share experiences and narratives regarding the problem matter, and to facilitate networking and dialogue among different initiatives. The main concerns regarding the use of a digital platform that emerged in the three sessions were related to restrictions in technological infrastructure; lack of technical capabilities; potential misinterpretation or inadequate use of the uploaded information; and the need for data validation. 5. Concluding Remarks Our R&I action involves fairly complex and diverse socio-environmental phenomena in a large territory which is densely populated. In this context, we seek to articulate with a large network of allies, with previous experience and responsibilities in the basin. Network formation is dynamic and the participation of actors in the R&I activities will vary over time and the type of action. From our experience, we could argue that three variables affect engagement by different types of actors: thematic expertise and/or interest of participants; degree of synergies with their own activities in the basin and the specificities of the expected contribution for each planned action. We envisage that in order to address the complexity of socio-environmental issues involved in R&I action we need to enable participation from a diverse set of stakeholders, who could contribute to better identify problems, mobilise resources and facilitate socio-technical transitions, as the academic and policy literature suggest (Bäckstrand, 2003; Gallopín & Vessuri, 2006; Sauermann et al., 2020; Stirling, 2007). However, as these authors claim, the social impact of Citizen Science projects depends on overcoming several challenges that turn up when trying to guarantee scale, diversity and intensity of #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 49 participation (Den Broeder et al., 2018; Heiss & Matthes, 2017; Kythreotis et al., 2019; Sauermann et al., 2020). Challenges are related to how to sustain participation and how to respond to the time, technical and regulatory constraints that each participant faces in their own institutional and cultural context for action. Thus, to promote sustainability of such participation we need to link to interests and previous and future activities of these heterogeneous participants. That is why we believed a network structure of stakeholders’ participation is more appropriate than a fixed coalition of stakeholders. This implies that stakeholders will participate on and off in the different activities we propose but they are nevertheless well informed and connected to the project activities; they will actively participate when they find it suitable in terms of their own agenda. The challenge is then how to promote synergies among diverse stakeholder agendas without departing from the R&I action vision, that is to encourage citizen participation facilitated by digital tools to promote transformative actions towards Environmental Justice in the basin. The virtual environment imposed by Covid-19 pandemic added new challenges, particularly when considering the digital gap affecting people living in vulnerable conditions. Network formation is a dynamic process and therefore it is always a work-in progress. Yet, people in the Knowledge Coalition network have manifested explicit interest in participating and being informed on our activities. Therefore, despite important challenges ahead, especially in relation to Covid-19 related restrictions and uneven and poor digital infrastructure in the country, we think we have been able to create a yet incipient but growing network of actors interested and connected to our R&I action. The main challenge we encountered so far was to work in a lockdown situation with communities living in vulnerable situations with poor digital infrastructure. On more than one occasion, it was not possible to contact interested members of the community due to connectivity issues. Articulation with #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 50 public policy actors was also very complicated in this situation; we could do not more than acknowledge that they were buried in daily emergencies and we were not as successful as we expected in reaching them. Interviews and workshops turned virtual. For the former and for the cases the digital barrier was overcome, we faced some challenges in administering the Informed Consents. We learnt from the process and it went more smoothly over time. For the latter, we originally thought it may have been complex to gather a diversity of actors in a virtual environment, especially due to asymmetric power, digital capabilities and potentially conflicting interests. But after building trust through interviews, information communications and micro-workshops we managed to organised a very productive interactive workshop, some six months after the R&I action formally initiated. Challenges in relation to implementing the IC procedure were manifold. Firstly, we needed to design the tool almost from scratch. Informing participants of the research processes and obtaining their explicit consent is a common practice in biomedical projects in the country. However, in those cases people are the object of research and therefore tools used in those contexts are not straightforwardly adaptable to the participatory and collaborative approach of our R&I action. When the project began and prior to our initial activities we designed the IC forms and procedures. We documented all the participatory activities and made decisions in terms of the information we would share with the consortium’s members, discussing the types of personal data to be collected and measures of protection. We followed our colleagues’ recommendations and studied their forms’ proposals, as well as our local normative guidelines and examples of consent for other disciplines and developed our own for the different types of stakeholders and their participation, translating them to English as well. When we had to reprogram our activities due to the lockdown, we needed to design new tools for unforeseen activities such as micro and co-design virtual workshops. The impossibility of meeting face-to-face led us to innovate in our procedure, simplifying the language but also the format for providing information: FARN communication team produced a video and we implemented both oral #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 51 consent and electronic agreement through Google Forms, with identification assured by requesting confirmation with emails. Going through those challenges made us confident in our capacities to adapt our plans and remain flexible to new turns in the context of uncertainty. We have relied on stringent mechanisms for organisation and articulation among main partners. We established a fortnight team meeting fixed schedule since the beginning of the lockdown, which allowed us to thoroughly discuss necessary changes in original plans. We also documented decisions and established follow-up mechanisms. In addition, for building the Knowledge Coalition we rely on both organisations’ previous networks and we devote time and effort to build trust with new contacts, which is of paramount importance for the success of our project activities. We learnt it could be gained even in the absence of face-to-face interaction. We were also positively surprised by the good reception of digital tools among workshop participants. Yet we believe in future workshops and interactive activities we need to provide more time for oral discussions. In the co-design workshop, we realised that some of the group discussions were cut down before they could properly finish. Overall, we found that virtual interactions worked better in more institutionalised environments. However, in the case of community members along the basin we still need to experiment with alternative mechanisms. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 52 6. References ACUMAR. (2018). Identificación de áreas prioritarias para intervenciones en la cuenca Matanza- Riachuelo. Análisis de riesgo ambiental. ACUMAR. (2019). Estudio de Humedales en la cuenca Matanza-Riachuelo. Estado de situación. ACUMAR. (2020). Informe de Mandas. Estado de cumplimiento y acciones. Bäckstrand, K. (2003). Civic Science for Sustainability: Reframing the Role of Experts, Policy-Makers and Citizens in Environmental Governance. Global Environmental Politics, 3(4), 24–41. https://doi.org/10.1162/152638003322757916 Biodiversidad de la cuenca Matanza-Riachuelo · iNaturalist. (n.d.). Retrieved 26 October 2020, from https://www.inaturalist.org/projects/biodiversidad-de-la-cuenca-matanza-riachuelo Cochero, J. (2018). AppEAR: A citizen science mobile app to map the habitat quality of continental waterbodies. Ecología Austral, 028(02), 467–479. https://bibliotecadigital.exactas.uba.ar/collection/ecologiaaustral/document/ecologiaaustral_v02 8_n02_p467 del Castillo, M & Fressoli, M. (2016). ¿Qué pasa Riachuelo? In M. Fressoli & V. Arza, The impact of citizen generated data in Argentina (pp. 21–26). CIVICUS DataShift. Demoy, M., Yacovino, P., Olejarczyk, R., Swistun, D., Campos, N., & Lekerman, V. (2016). Articulación entre la academia y la gestión pública. Reflexiones sobre la experiencia en procesos de relocalización involuntaria de población. Ponencia Presentada En Congreso Internacional Contested_Cities. Disponible En: Https://Bit. Ly/2iAv8FL [Fecha de Consulta: 08/10/2018]. #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 53 Den Broeder, L., Devilee, J., Van Oers, H., Schuit, A. J., & Wagemakers, A. (2018). Citizen Science for public health. Health Promotion International, 33(3), 505–514. https://doi.org/10.1093/heapro/daw086 Fressoli, M., & Arza, V. (2016). Discussion. In M. Fressoli & V. Arza, The impact of citizen generated data in Argentina (pp. 42–53). CIVICUS DataShift. Gallopín, G., & Vessuri, H. (2006). Science for sustainable development: Articulating Knowledges. In Interfaces between Science and Society (1st ed., pp. 35–52). Greenleaf Publishing Limited. https://doi.org/10.9774/GLEAF.978-1-909493-67-4_4 Haklay, M. (2018). Participatory citizen science. In Citizen Science: Innovation in Open Science, Society and Policy. UCL Press. Heiss, R., & Matthes, J. (2017). Citizen Science in the Social Sciences: A Call for More Evidence. GAIA - Ecological Perspectives for Science and Society, 26(1), 22–26. https://doi.org/10.14512/gaia.26.1.7 Hess, D. J. (2007). Alternative pathways in science and industry. MIT Press. Kythreotis, A. P., Mantyka-Pringle, C., Mercer, T. G., Whitmarsh, L. E., Corner, A., Paavola, J., Chambers, C., Miller, B. A., & Castree, N. (2019). Citizen Social Science for More Integrative and Effective Climate Action: A Science-Policy Perspective. Frontiers in Environmental Science, 7. https://doi.org/10.3389/fenvs.2019.00010 Mira, J. (2016). Activismo verde: Participación ciudadana por el derecho al ambiente sano en la Argentina. http://ri.conicet.gov.ar/handle/11336/28611 #5.1 Report on Knowledge Coalition Building The CoAct project has received funding from the European Union’s Horizon 2020 Research and Innovation programme under grant agreement No. 873048 54 Pasqualini, M. F., Bañuelos, C., Faure Montania, E., González, J., Hepp, Y., López, F. E., Malinovsky, V., & Mayo, P. (2018). Mapa de Riesgo Sanitario Ambiental de la Cuenca Matanza Riachuelo (ACUMAR, Ed.). ACUMAR. Pereira, P., & Tobías, M. (2014). Políticas de agua potable y saneamiento y demandas locales en el Área Metropolitana de Buenos Aires. MG Merlinsky, Cartografías Del Conflicto Ambiental En Argentina. Buenos Aires: CICCUS-CLACSO. Radtke, A. R. (2018). Caminos de la Villa: A case study in civic advocacy through crowdmapping [PhD Thesis]. Sauermann, H., Vohland, K., Antoniou, V., Balázs, B., Göbel, C., Karatzas, K., Mooney, P., Perelló, J., Ponti, M., Samson, R., & Winter, S. (2020). Citizen science and sustainability transitions. Research Policy, 49(5), 103978. https://doi.org/10.1016/j.respol.2020.103978 Stirling, A. (2007). A general framework for analysing diversity in science, technology and society. Journal of The Royal Society Interface, 4(15), 707–719. https://doi.org/10.1098/rsif.2007.0213 Verzeñassi, D., & Vallini, A. (2019). Transformaciones en los modos de enfermar y morir en la región agroindustrial de Argentina. ISSA. http://www.biodiversidadla.org/Documentos/Transformaciones- en-los-modos-de-enfermar-y-morir-en-la-region-agroindustrial-de-Argentina